I am asking the Fifth Court of Appeals to make the judge show up!
Filed June 23, 2003
A "visiting judge" (more on that at another time) assigned on Mar. 14, 2003. Seen no trace of him and trying to make him appear so we can get the show on the road. I am asking the Fifth Court of Appeals in Dallas to ORDER the judge to appear.
This is what is called a "Petition for writ of mandamus"
"Petition" = asking someone, in this case asking the Fifth Court of Appeals in Dallas
"Writ" is what one writes, what they put out (or should)
"Mandamus" = Latin for "we order" (at least that is what I think it means)
Look at end for what I am asking that the Appeals Court do (To note that any civil RICO suit, by its very nature, IS A COMPLAINT OF CRIMES, and that my complaint of CRIMES is for ABUSE OF THE JUDICIAL SYSTEM by a "pattern of racketeering activity" upon me.
Note: Some formatting has been lost in going to web page.
No. ___________
In the Court of Appeals
Fifth District of Texas at
Dallas
(underlying proceeding is in
294th District Court
of Van Zandt County, No.
03-00082)
Udo Birnbaum, Pro
Se
540 VZ 2916
Eustace, TX 75124
(903) 479-3929
phone and fax
(a) IDENTITY OF PARTIES
AND COUNSEL
Udo Birnbaum Udo Birnbaum, Pro Se
Relator 540 VZ 2916
(Plaintiff in underlying proceedings) Eustace,
Texas 75124
(903) 479-3929 (phone and fax)
Hon. Donald
Jarvis c/o Pam Kelly, Court Coordinator
Respondent 294th Judicial District Court
(Senior Texas District Judge, 121 East Dallas St., Room 301 Sitting
by assignment) Canton, Texas
Phone (903) 567-4422
Fax (903) 567-5652
Frank C. Fleming Frank C. Fleming
Real party in interest 6611 Hillcrest, Suit 305
(Defendant in underlying proceedings) Dallas, Texas 75205-1301
Phone (214) 373-1234
Fax (214)
373-3232
Hon. John Ovard Presiding Judge
Real party in interest First Adm. Judicial Region
(One who assigned Hon. Donald
Jarvis) 133 N. Industrial, LB50
Dallas, Texas 75207.
(b) TABLE OF CONTENTS
(a) Identity of parties and counsel 2
(b) Table of contents 3
(c) Index of authorities 4
(d) Statement of the Case 5
(1) The
nature of the underlying proceedings 5
(2) The
judge's name and court where [should be] sitting 5
(3) Respondent's [non] action from which I
seek relief 5
(e) Statement of jurisdiction 7
(f) Issues presented 8
ISSUE 1: WHETHER the failure of Judge Jarvis to appear in the 8
case is a violation of duty that cannot be remedied
by appeal
ISSUE 2: WHETHER Judge Jarvis should be made to appear 8
(g) Statement of Facts 9
(h) Argument 9
CONTENTION 1: The failure of Judge Jarvis to appear in the
case is a violation of duty
that cannot be remedied by appeal 9
CONTENTION 2: Judge Jarvis should be made
to appear 9
(i) Prayer 10
(j) Appendix
Civil Docket Sheet (case filed Jan. 29, 2003) 12
Motion for Discovery Control
Plan (Mar.11, 2003) 13
Request for Setting
Form (Mar. 11, 2003) 15
Assignment of Judge
Jarvis (Mar. 15, 2003) 16
Notice of Assignment (Apr.
2, 2003) 17
(c) INDEX
OF AUTHORITIES
18 U.S.C. § 1962(c ("RICO") 7
18 U.S.C. §1964(c) ("civil RICO") 8
18 U.S.C. §1341 (mail fraud) 8
18 U.S.C. § 1346 ("scheme or artifice
to deprive of honest service")
7
Jack B. Anglin Co. Inc v.
Tipps, 842 S.W.2d 266 (Tex. 1992) 7
Rotella v. Wood et al., 528 U. S. 549 (2000) ("private attorneys general") 8
Tafflin v. Levitt, 493 U.S.
455 (1990). (state court civil RICO jurisdiction) 7
(d) STATEMENT OF THE CASE
(1) The
nature of the underlying proceeding
("civil RICO",
"pattern of racketeering activity" by a lying lawyer)
Plaintiff, UDO BIRNBAUM,
complains under 18 U.S.C. § 1964(c) ("civil
RICO") of injury "by reason of" violations of 18 U.S.C. § 1961, et seq. (Racketeer
Influenced and Corrupt Organizations Act, "RICO"), by a certain FRANK
C. FLEMING.
Birnbaum's
complaint is for injury resulting from a RICO violative "pattern of
racketeering activity" involving a "scheme to deprive of
honest service" (pattern of lying, by an attorney, in violation of his
duties, in the 294th District Court of Van Zandt County, Texas).
(2) The
judge's name and court where [should be] sitting
(been assigned, but not
appearing)
Relator
Hon. Donald Jarvis has been assigned
to this case in the 294th District Court of Van Zandt County. (Appendix) The
court is located in Canton, Texas.
(3) Respondent's
[non] action from which I seek relief
(from INDEFINITE
CONTINUANCE)
Birnbaum filed suit on a certain FRANK C.
FLEMING on Jan. 29, 2003 (Appendix). Neither party moved for recusal of the
district judge.
On
March 11, 2003 Birnbaum filed "Plaintiff's RCP Rule 190.4 Motion For
Discovery Control Plan", and requested a HEARING per "Request
For Setting Form". (Appendix)
Per
document dated March 14, 2003, the First Administrative Judicial Region, (without an order of recusal or order of
referral), issued "Order Of Assignment By The Presiding
Judge", bearing the signature of Judge John Ovard as Presiding Judge, "attested" to by a Sandy Hughes, "Administrative
Assistant", such "assignment" for a certain Honorable Donald Jarvis. (Appendix)
It
was not until April 2, 2003, however, that Birnbaum (and apparently the 294th District Court) received any notice. (Appendix)
Even
now, June 22, 2003 there has never
been any record of such assignment posted among the regular notices of assignment
appearing on the web site of the First Administrative Judicial Region. (www.firstadmin.com)
As of
now, June 22, 2003, there has not been any notice OF ANY KIND regarding the
requested Hearing, or the
whereabouts of said Honorable Donald
Jarvis. From all indications, the
present status is INDEFINITE CONTINUANCE.
I am seeking relief from the
INDEFINITE CONTINUANCE on the part of Hon. Donald Jarvis. Case filed Jan. 29, 2003. As of Jun. 22,
2003, no judge has appeared, and none appears in sight. A hearing for
"Plaintiff's RCP Rule 190.4 Motion
For Discovery Control Plan" has been requested (Appendix).
(e) STATEMENT
OF JURISDICTION
Birnbaum is entitled to
issuance of writ of mandamus because the failure of the assigned judge
to appear is clear abuse of discretion and violation of duty imposed by law
that cannot be remedied on appeal:
"Although mandamus relief will not issue
merely because an appellate remedy may be more expensive and time-consuming
than mandamus, it will issue when the failure to do so would vitiate and
render illusory the subject matter of appeal." Jack B. Anglin Co. Inc v. Tipps, 842 S.W.2d 266 (Tex. 1992)
(emphasis added)
The Law regarding my civil RICO claim:
"It shall be unlawful for any
person employed by or associated with any
enterprise engaged in, or the activities of which affect, interstate or foreign
commerce, to conduct or participate, directly or indirectly, in the conduct of
such enterprise's affairs through a pattern of racketeering activity or
collection of unlawful debt". 18
U.S.C. § 1962(c).
("RICO")
"Any
person injured in his business or
property by reason of a violation of section 1962 of this chapter may sue
therefor in any appropriate United States district court and shall recover
threefold the damages he sustains and the cost of the suit, including a
reasonable attorney's fee. 18 U.S.C. §1964(c). ("civil
RICO")
Note: State courts have concurrent
jurisdiction to consider civil claims arising under RICO. Tafflin
v. Levitt, 493 U.S. 455 (1990).
Sec. 1341. - Frauds and swindles: Whoever, having devised or
intending to devise any scheme or
artifice to defraud … … places in any post office or authorized depository for mail matter, any matter or thing whatever
to be sent or delivered by the Postal Service … … or takes or receives
therefrom … … shall be fined not more than $1,000,000 or imprisoned not
more than 30 years, or both. 18 U.S.C. §1341 (mail fraud)
Definition: "For the purposes of this chapter, the
term ''scheme or artifice to defraud'' includes a scheme or artifice
to deprive another of the intangible
right of honest services". 18
U.S.C. § 1346
No less than the SUPREME
COURT OF THE UNITED STATE is urging me to fight corruption by filing this civil
RICO claim:
"Congressional objective [in enacting civil
RICO with TREBLE damages] of encouraging civil litigation not merely to
compensate victims but also to turn them into private attorneys general, supplementing Government efforts
by undertaking litigation in the
public good". Rotella v.
Wood et al., 528 U. S. 549 (2000)
How else, except by mandamus, can I get my case heard, and
justice be done according to the urging of the U. S. SUPREME COURT, if the
judge just does not get around to hearing my cause, for whatever reason
or none?
(f) ISSUES PRESENTED
ISSUE 1: WHETHER the failure of Judge Jarvis to appear in the case is a
violation of duty that cannot be remedied by appeal
ISSUE 2: WHETHER Judge Jarvis should be made to appear
(g) STATEMENT OF FACTS
See Statement
of the Case, above. Details of the Original Petition among the papers
on file in Cause No. 03-0082 in the 294th District Court. Also available at my
web page. (CourthouseAwarenessNews.com)
(h) ARGUMENT
CONTENTION
AS TO ISSUE 1:
The failure of
Judge Jarvis to appear in the case is a
violation of
duty that cannot be remedied by appeal
How can justice be done if
the judge does not appear?
How can I get around to appealing if Judge
Jarvis does not appear?
CONTENTION
AS TO ISSUE 2:
Judge Jarvis should be made to appear
It is
time for Judge Jarvis to appear in the 294th District Court of Van Zandt
County. Urging by mandamus is indicated.
PRAYER
I petition this Honorable
Appeals Court to listen carefully to my pleas as to why WRIT OF MANDAMUS is
required for the sake of due process and justice under the
circumstances of this case (a "civil RICO" case). For the reasons presented above I petition
for the following:
1.
To
Order Judge Donald Jarvis to appear
2.
To
make such other provisions in the
WRIT OF MANDAMUS as to ensure justice under the extraordinary circumstances of
this cause, i.e. me, a non-lawyer, suing a lawyer under civil
RICO ("pattern of racketeering activity"), per urging of no less
than the SUPREME COURT OF THE UNITED STATES in Rotella v. Wood ("private attorneys general").
3.
To
note that any civil RICO
suit, by its very nature, IS A COMPLAINT OF CRIMES, and that my complaint of
CRIMES is for ABUSE OF THE JUDICIAL SYSTEM by a "pattern of racketeering
activity" upon me.
Respectfully submitted,
___________________
Udo Birnbaum, Pro Se
540 VZ 2916
Eustace, Texas 75124
(903) 479-3929
APPENDIX (attached to this Petition):
Civil
Docket Sheet (case filed
Jan. 29, 2003) 12
Motion for Discovery Control
Plan (Mar.11, 2003) 13
Request for Setting
Form (Mar. 11, 2003) 15
Assignment of Judge
Jarvis (Mar. 15, 2003) 16
Notice of Assignment (Apr. 2, 2003) 17
VERIFICATION
I, Udo Birnbaum,
affirm that the factual statements I have made in the above Petition
for Writ of Mandamus are based on my personal knowledge as I have
obtained through my observation and investigation, and that the exhibits
provided herewith are true and correct copies of the originals.
____________________
UDO BIRNBAUM
STATE
OF TEXAS
COUNTY
OF VAN ZANDT
Before me, a notary public, on this
day personally appeared Udo Birnbaum, known to me to be the person whose name
is subscribed to the foregoing Petition for Writ of Mandamus and
being by me first duly sworn, declared that the statements above are true and
correct.
Given under my hand and seal of office this _____
day of June , 2003
_________________________
Notary in and for The State of Texas
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of
this document has been provided today via Certified
Mail to Frank C. Fleming, 6611
Hillcrest, Suite 305, Dallas, Texas 75205-1301.
7000 0520 0023
3781 3009
Also by Certified
Mail and Regular Mail to Hon. Donald Jarvis, c/o Pam Kelly,
Court Coordinator, 294th Judicial District Court, 121 East Dallas St., Room
301, Canton, Texas.
7000 0520 0023
3781 3016
Also by Certified
Mail, RESTRICTED DELIVERY, Regular Mail, and FAX to Hon. John Ovard, First Administrative
Judicial Region, 133 N. Industrial, LB50, Dallas, Texas 75207.
7000 0520 0023
3781 3023
This the _____ day of June , 2003.
___________________
UDO BIRNBAUM