NOTE:  Some reformatting has occurred. Original document had footnotes on the individual pages.
This conversion via WORD 2000 .  FOOTNOTES in this document LINKED (Just Click on it. Click on footnote to go back)
Footnotes also can be seen at end of document (all grouped together).

Exhibit "A" referred herein is  Civil RICO jury instructions   If juries can understand RICO ("Racketeer Influenced and Corrupt Organizations Act"), lawyers can too!

THIS DOCUMENT EXPLAINS RICO (see section LEGAL BASIS FOR THIS CLAIM, below) 
THIS DOCUMENT EXPLAINS THE SCHEME   (see THE RICO SCHEME, also NATURE OF THE CASE, below)
THIS DOCUMENT EXPLAINS THE BACKGROUND  (see BACKGROUND TO THE "BEAVER DAM" SUIT SCHEME, below)
FILED JUNE 3, 2003
 

 

CAUSE NO. 03-00460

 

UDO BIRNBAUM                                                    §                   IN THE DISTRICT COURT

Plaintiff                                                                   §

                                                                               §         

v.                                                                                   §                  294th JUDICIAL DISTRICT

                                                                                §

RICHARD L RAY                                                      §   

John Doe                                                                       §                  VAN ZANDT COUNTY, TEXAS

Mary Doe                                                                      §

      Defendants                                                               §

 

ORIGINAL PETITION

Comes now UDO BIRNBAUM  ("Birnbaum", "I"), Plaintiff, Pro Se, complaining of RICHARD L. RAY ("Ray"), Defendant, and for cause of action would respectfully show the Court the following:

Udo Birnbaum is an individual residing in Van Zandt County, Texas. He may be served with process at 540 VZ CR 2916, Eustace, Texas 75124.

Richard L. Ray is an individual residing in Van Zandt County, Texas. He may be served with process at 300 S. Trade Days Blvd. (300 S. Hwy 19), Canton, Texas 75103.

John Doe and Mary Doe are other individuals whose identity awaits discovery.

 

Birnbaum brings suit under 18 U.S.C. § 1964(c) ("civil RICO") complaining of injury resulting from ("by reason of") a "pattern of racketeering activity" as outlawed by 18 U.S.C. §1961 et seq. ("RICO").

 

NATURE OF THE CASE

1.         Discovery is intended to be conducted under Level 3.  (RCP Rule 190.4)

2.         This action arises out of a scheme round and about the 294^th District Court in Canton, Texas ("Wallace's old Court") in which one or more participants attempted to enrich themselves by using their relationships in the Court to extort "legal fees" by the use of fraudulent documents, arguments, and corrupt court process, and to run over and make an example of anyone who would not hire an attorney when they sued him.

3.         The above named Defendant's scheme was to use his law license to fabricate and maintain a "frivolous" (totally fraudulent) "beaver dam" case upon me for the purpose of enriching himself and his "good old boy network" (John Doe, Mary Doe) around the 294th District Court of Van Zandt County.  The scheme was to get my neighbor (Ray's "client") and me entangled, and to cause both of us to pay lots of "legal fees".  (Cause 95-63, filed Jan. 1995, still in there May 2003, eight (8) years later!

4.            Defendant's frivolous "beaver dam" scheme is violative of RICO because it is an outlawed "scheme to deprive of the intangible right of honest services". (i.e. the right to receive honest services from lawyers as "officers of the court")

5.         The scheme is also violative of RICO because it is extortionate in nature, i.e. to force victims to pay up front "legal fees" (hire a lawyer) lest one be perpetually entangled in the court or further punished ("sanctioned", as I was to pay more ($122,000+) "legal fees"). 

6.         As my own lawyer ($2500+ "legal fees" paid to him) stated at his first appearance, "Mr. Birnbaum has finally gotten around to hiring an attorney", and as the judge replied, "make yourself comfortable, I've got lawyers on both sides now."   Also the message carried to me by my own lawyer after they had a full forty (40) minute "off the record" séance before the judge, that if I were to pay Ray $2500, the cause could be over.  (Cause No. 95-63, Oct. 6, 1998.  For "legal fees" for Ray, I presume)

7.         Also Ray's statement at the trial during closing argument: "I do believe that if Mr. Birnbaum had chosen to hire counsel, rather than to represent himself, that we might have ever come this far --", and "I don't know that Mr. Birnbaum fully understands this proceeding. I  regret he doesn't, because all disputes do not have to end in jury trials - But this one has been headed that way from day-one -- ".   It is clear what everybody was upset about -- I had no attorney, was not entirely stupid, and wanted a jury trial!

     Also Judge Wallace's posting in the courtroom: "All cases on file less than one year may be passed only by agreement of the parties. All cases on file more than one year may be passed only by permission of the court."   What he is saying, in essence, is that he will not interfere with the lawyers for one year. ("go get  'em boys")

8.            Defendant's RICO violative conduct and the injury produced are as detailed below. But for Defendant's pattern of racketeering activity I would never have been thrust into the culture of corruption around the [Wallace] court.

(Note: Proximate cause is not a requirement for civil RICO.  "I only pushed him into the muck; it was the other alligators that also ate on him" is not a valid excuse. See Attachment "A", Pattern Jury Instructions, CAUSATION)

 

LEGAL BASIS FOR THIS CLAIM

9.         The Racketeer Influenced Corrupt Organizations act ("RICO", 18 U.S.C. § 1961 et seq.) goes far beyond what we normally think of as organized crime settings. What is outlawed is certain conduct, by any person, under any setting outlawed by RICO, i.e. under certain relationships between "person", "enterprise", "scheme", "predicate acts", "pattern of racketeering activity", etc. Furthermore RICO provides a private cause of action ("civil RICO") for injury "by reason of" the RICO violation.

10.            Although the RICO statute comes with its own definitions of the above terms, judicial interpretations determine the law. A clear view of current law is, however, contained in "civil RICO pattern jury instructions" such as those used in the U.S. Fifth Circuit, made an attachment to this pleading as Exhibit "A".  It should be noted that RICO has no "elements" in the customary tort context, but only "issues of fact" as to the phrases in the law as interpreted by the courts.

11.       This pleading pleads to each jury "issue of fact" in the Fifth Circuit civil RICO pattern jury instructions.

12.       Each named act of "racketeering activity" is by reason of violation of 18 U.S.C. § 1341 or 1343, the mail fraud statutes, which are among the enumerated violations qualifying as acts of "racketeering activity" ("predicate acts") under RICO.  Each violation is by not providing "honest service" which Defendant owed the court, the plaintiff, and the State of Texas, but rather engaging in a scheme of lies and deception to deprive of such required "honest service", and executing the scheme through use of the mails (See United States v. Brumley, 116 F.3d 728, 733 5^th Cir. 1997 en banc). The applicable law (emphasis added):

"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).

 

"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

 

Purpose and history of this chapter and substance of its provisions demonstrate clear congressional intent that chapter be interpreted to apply to activities that corrupt public or governmental entities.  U.S. v. Angelili, C.A.N.Y.1981, 660 F.2d 23, certiorari denied 102 S.Ct. 1258, 1442, 455 U.S. 910, 945, 71 L.Ed.2d 449, 657, rehearing denied 102 S.CT. 1998, 1999, 2024, 456 U.S. 939, 951, 72 L.Wd.2d 460, 476.

 

Congress did not limit scope of this chapter to those persons involved in what traditionally has been thought of as "organized crime," but, rather, any "person" as term is broadly defined in this chapter, whether associated with organized crime or not, can commit violation, and any person injured in his business or property by such violation may then sue violator for damages in federal court. Lode v. Leonardo, D.C.Ill.1982, 557 F.Supp. 675.

 

Whoever engages in prohibited patterns of racketeering activities comes within purview of this chapter, including public officials.  U.S. v. Mandel, D.C.Md.1976, 415 F.Supp. 997, supplemented 415 F.Supp. 1025.

 

13.       Birnbaum, in asserting this claim, is in conformance with the Congressional intent of civil RICO as established by the Supreme Court of the United States in Rotella v. Wood et al. (2000), i.e. a "Congressional objective [in enacting civil RICO] 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".

14.       Having diligently investigated both the facts and the law, Birnbaum has found that the various matters he is complaining of are not isolated garden variety wrongs, but that the evidence shows he is indeed the victim of conduct proscribed by 18 U.S. C. § 1961 et seq. ("RICO")

15.       But for Defendant's pattern of racketeering activity, Birnbaum would never have become the victim of certain other rogue lawyers round and about that [Wallace] court. ($150,000+)

 

THE RICO SCHEME

16.       The Defendant's scheme was to use his attorney license to "participate in the conduct of the affairs" of the 294^th District Court of Van Zandt County, Texas to create and maintain a totally fraudulent "beaver dam" case, and to do so by a scheme to deprive of the honest service that he owed to the Court, Plaintiff, and the State of Texas.  The scheme was to get his "client" and Plaintiff (Birnbaum) entangled, and to cause both of them to pay lots of "legal fees". (Cause 95-63, filed Jan. 1995, still in there May 2003, eight (8) years later!)

 

Vignette[1] of the Scheme[2]:

(I am not allowed to tell the jury what I was hauled into court for!)

            My neighbor's complaint had been about beaver, and wanting to go onto my property to kill beaver just like he had done on his property.  But the lawyer changed it into me violating the Texas Water Code[3] by building a dam ("The Dam"). And at trial the lawyer kept flapping about beavers, and never brought up "The Dam". I could not defend myself by showing that I had not built "The Dam" dam. So I was trying to show the jury what I was hauled into court for[4], and they would not let me tell the jury (by showing the jury the "The Dam" pleadings! The following from the trial transcript: (emphasis added)

 

THE COURT: All right. I'm going to make an explanation, ladies and gentlemen, I don't usually do this, and it has to be done with considerable care. There are four exhibits that Mr. Birnbaum has. During the last recess, I asked him to have those exhibits marked, which he did. They're Defendant's Exhibit 79, 80, 81 and 82. I conducted a brief hearing, while you were retired, to determine the admissibility of those exhibits. I determined, under the law, that they're not admissible. They are not evidence and they --

(WHEREUPON, another interruption from the alarm system in the courtroom sounded.)

THE COURT: They can't be -- The documents can't be given to you. They can't be read to you, and they can't be told to you. Now, Mr. Birnbaum has persisted in talking about those documents, and talking about my rulings, and talking about what he refers to as -- I guess, procedures or rules of procedure. Mr. Ray has now raised a concern, which I frankly share, that because of the way -- because of the last few things that Mr. Birnbaum has said, that you may get the idea that either the Plaintiff or the Court is trying to hide something from you.

Now, I don't know how really to go much further, except to say that what these documents are, are what are called pleadings. To make a pleading, you put a piece of paper in a typewriter and you type on it anything you want to -- And you come down to the courthouse. You give it to this lady right over here, the District Clerk. She puts a file stamp on it. It's a pleading. The law says that pleadings are not evidence. They are the very allegations that you've been summoned down here to address.

 

(That is exactly what the lawyer had done, taken a piece of paper, put it in a typewriter, and typed on it  - anything he wanted to!

 

      The scheme and "pattern of racketeering activity" can be clearly seen from the "predicate acts" of "racketeering activity" as detailed below.

 

BACKGROUND TO THE "BEAVER DAM" SUIT SCHEME

17.       One of my neighbors, sometime in 1993 or 1994, on his farm killed beavers, dynamited their dams, drained and bulldozed the whole area, including the fence between his and my farm, all without telling me and without my knowledge.

18.       I first found out late in 1994 when my neighbor feared that the "overgrown rats", as he referred to the beavers, might come back, and told me that his trapper would not go onto my property without my permission. It was then, as my neighbor and I walked my property, that I first learned of all the things my neighbor had done, including starting erosion all down my creek.

19.       My neighbor appeared quite unreasonable as I showed him that there was nothing along my creek that was causing or could cause him any problems. Besides that, I had about 1982 contacted the Soil Conservation Service of the U.S. Department of Agriculture for a Soil Conservation Plan, and they had advised me to leave the creek area as was, and not to remove any brush or anything, and that is exactly what I had done.

20.       Then about Dec. 7, 1994 I receive a threatening letter from attorney Ray, complaining of beaver (of which there were none), and my being guilty of indirect trespass by water invasion (of which there was none) by flooding "as much as 10-12 acres" of my neighbors property, and threatening me with suit.

21.       I told Ray that this was a bunch of hooey, and to look for himself by making a personal inspection of my neighbor's property, and that I was not going to put up with such conduct on his part.  I was particularly concerned since Ray had probated my dad's will just two (2) years earlier and knew that I had received assets.

 

THE "PATTERN OF RACKETEERING ACTIVITY'

22.       The acts of "racketeering activity" shown below constitute a "pattern of racketeering activity" within the meaning of 18 U.S.C. § 1961(5). The acts complained of are not isolated events, but relate to each other by virtue of a common participant, a common method of commission, and the common purpose and common result of defrauding of honest service by a pattern of deception and lying by an officer of the Court.

 

THE PREDICATE ACTS OF 'RACKETEERING ACTIVITY

(depriving the Court, Birnbaum, and the State of Texas of "honest service",

and using the mail to execute the scheme)

 

Predicate Act 1

Filing a fraudulent suit to haul me into court

23.       Ray filed suit (No. 95-63) on me about Feb. 6, 1995 claiming that I, as a person, had somehow suddenly in 1994 built a dam ("The Dam") in violation of the Texas Water Code, when Ray himself had been complaining to me about beaver!  Not a word about beaver in the suit! [5] And I was supposed to have washed "sand, driftwood, and debris" onto my neighbor, when it was clear from the letter he sent me, that I was entirely downstream. (with "my" beavers  supposedly doing backing up of water. Beavers of course are state animals)

24.       Ray knowing all this as he filed the suit, then with me denying that I ever built a dam ("The Dam"), never asking me at depositions or at any other time about "The Dam", Ray nevertheless took his fraudulent suit all the way to trial in May 1998 and beyond.[6]

            Ray's "client" was of course heard saying that Ray had "screwed it [the case] all up". What the "client" did not know, was that he was being taken for a $10,000 "legal fee" ride.

25.       The Court, Birnbaum, and the State of Texas were deprived of "honest service" on the part of Richard L. Ray as an officer of the court, and Ray used the U.S. mail to execute the scheme.

 

Predicate Act 2

Sneaking in a default judgment on what he knew to be a fraudulent suit

26.       On or about March 16, 1995 Richard Ray submitted a "Request for Setting Form" for a hearing for "Default Judgment", NOT LISTING ME AS A PARTY to be notified by the court, to get a FRAUDULENT default judgment on top of a FRAUDULENT PLEADING!

27.       There was something strange and behind the scenes in all the notifications for hearings: Short notices, over the week-end notices, etc.

28.       The Court, Birnbaum, and the State of Texas were again  deprived of "honest service" on the part of Richard L. Ray as an officer of the court.

 

Predicate Act 3

Ray's interrogatories co-mingling beaver dams with "The Dam" in his pleading

29.       About May 1995 Richard Ray sent me interrogatories starting the process of co-mingling "beaver dams" with the fraudulent "The Dam" in his pleading [7]. Richard Ray never again asked me about "The Dam" I was supposed to have built, not a question in depositions, not at trial, no question to the jury regarding "The Dam", no mention to the jury of the Texas Water Code, etc. And the judge ruled at trial (THREE YEARS later) that I could not show "The Dam" pleading to the jury, because it was not "evidence". (See Vignette of the Scheme, above).  "The Dam" had procedurally disappeared.

30.       The Court, Birnbaum, and the State of Texas were again  deprived of "honest service" on the part of Richard L. Ray as an officer of the court.

  

 Predicate Act 4

Ray's abusive deposition of me about everything except "The Dam"

31.       At depositions on December 10, 1997 (Note: suit filed Feb. 1995!) I was asked about everything under the sun except about "The Dam" which I was supposed to have built (and which I had of course denied way back in 1995) : my childhood in Germany, my church, the names of the members, what qualified me to teach at Martins Mill (without a teaching certificate), what qualified me to tutor some of the home-schooled neighbors, all their names, the names of their parents, the meaning of a certain "Christmas Card", etc. Everything but "The Dam" in Ray's pleading.

32.       The Court, Birnbaum, and the State of Texas were again deprived of "honest service" on the part of Richard L. Ray as an officer of the court.

 

 

Predicate Act 5

Ray trying to "Enforce Mediation or Enter Judgment"

33.       On or about October 23, 1996 Richard Ray put in a "Request For Setting Form" to force me into "mediation".  What is there to "mediate" if he says I built "The Dam", and I said the client was not complaining about "The Dam", but that the lawyer made up "The Dam".  Very "damning" is the use of the cause number (95-93, not 95-63), as was the "Order To Appear For Mediation" signed January 16, 1997, to pay $600 to attorney Richard Davis, by January 15, 1997, the day BEFORE.  And no ORIGINAL of the ORDER has ever been seen! Only a copy of a fax, received on Friday, to appear the immediate MONDAY!

34.       The Court, Birnbaum, and the State of Texas were again deprived of "honest service" on the part of Richard L. Ray as an officer of the court.

 

Predicate Act 6

Ray lying to the TNRCC and threatening them with suit!

35.       This letter did not come to light until the trial of May 1998, when it was found attached to the back of one of Ray's trial exhibits. I had sought the advice of the Texas Natural Resource Conservation Commission (TNRCC) on how to deal with the erosion on my land that had been caused by my neighbor (Ray's "client"). They had gotten involved and then backed out after Ray sent them a threatening letter. Ray was showing the jury the "back-out" letter, but Ray's letter to them was stapled to the back of it. I did not notice all this at the trial, but in Ray's letter he states "I request that you immediately provide a letter to [name] closing the actions which you have initiated", and that it is "entirely untrue" that his client [name] "has modified the channel of Steve Creek" (which he had), and that if they (TNRCC) "insist on pursuing this matter" that "it is my intention to add your commission to the suit as a defendant and to contact Mr. David Cain, State Senator and Dr. Bob Glaze, State Representative for an investigation of your actions."

36.       The Court, Birnbaum, and the State of Texas were again deprived of "honest service" on the part of Richard L. Ray as an officer of the court.

 

Predicate Act 7

Ray's First Amended Original Petition

37.       Filed about February 17, 1998, over THREE YEARS since the Original Petition. Contains the same fraud of "The Dam". Still has "sand, driftwood, and debris" being washed UPSTREAM!  Still seeks removal of "The Dam", etc.

38.       The Court, Birnbaum, and the State of Texas were again deprived of "honest service" on the part of Richard L. Ray as an officer of the court.

 

Predicate Act 8

Ray's Second Amended Original Petition

39.       Filed about May 19, 1998, THIRTY NINE (39) MONTHS since the Original Petition, and LESS THAN A WEEK before the trial scheduled for May 26, 1998.   Still same "The Dam", same "sand, driftwood, and debris" being washed upstream. Same "removal" of "The Dam". But something new:  ATTORNEY'S FEES under Section 38.001 of the Code of Civil Remedies.  Attorney's fees is if course NOT AVAILABLE under 38.001 for removal of "dams" or "beavers" or anything else. (not among the enumerated causes).  And every attorney knows he gets NO ATTORNEY'S FEES for an injunction!

40.       The Court, Birnbaum, and the State of Texas were again deprived of "honest service" on the part of Richard L. Ray as an officer of the court.

 

Predicate Act 9

Ray's fraudulent questions to the jury

41.       The court had asked for submission of jury issues, but Ray never supplied any, and certainly never served me with any.  Then on the last day of trial, JUST BEFORE SUBMISSION TO THE JURY, he springs them on me, a Pro Se. The first time I ever saw the jury issues is when they were already incorporated into the Court's charge!

Question No. 1:  Did Birnbaum allow dams upon his land to flood [name's] upstream property in October, 1994?

Answer YES

 

Question No. 2: What sum of money, if paid now in cash, would fairly and reasonable compensate [name] for his loss, if any, resulting from the occurrence in question? Answer ZERO

 

If you have answered "Yes" to Question No. 1, then answer Question No. 3.

Question No. 3: What sum of money, if any, do you find from a preponderance of the evidence would be reasonable and necessary attorney's fees for the services, if any, performed by Plaintiff's attorney?

Answer  $10,000

 

42.       These questions certainly do not make valid jury issues for a pleading alleging I had built a dam in violation of Section 11.086 of the Texas Water Code!  All evidence before the jury had been regarding BEAVER dams. "The Dam" never appeared before the jury!

43.            Secondly attorney's fees are not even available under his pleading. Question No. 3 [attorney fees] should never have been in there, and should certainly not be predicated on Question No. 1, but on DAMAGES (Question No. 2).  

44.       The Court, Birnbaum, and the State of Texas were again deprived of "honest service" on the part of Richard L. Ray as an officer of the court.

 

Predicate Act 10

Ray's dishonest CLOSING argument to the jury

45.       "I have done the very best I could do in this proceeding, to be as fair as I could to Mr. Birnbaum, under the circumstances". p671   (with a fabricated cause?)

 

46.       "I do believe that if Mr. Birnbaum had chosen to hire counsel, rather than to represent himself, that we might have ever come this far -- " p672  (and paid "legal fees" to one of his buddies!) 

 

47.       "  you could see where the brush is washed up and where that sand that was spread in a very broad area …" p 675    (my neighbor was entirely upstream. Sand does not wash upstream!)

 

48.            "Question No. 3 --   If you answer question No. 1, not question No. 2 [DAMAGES], but question No. 1, yes, that there was an overflow, then you can proceed to consider my attorney fees in this case." p676  (see above, fraud in jury questions and instructions. Every lawyer knows that he has to be a "winning party" [Question No.2] before he is entitled to "legal fees")

 

49.       "I don't know that Mr. Birnbaum fully understands this proceeding. I regret he doesn't, because all disputes do not have to end in jury trials -- But this one has been headed that way from day-one -- And I had no way to avail it."  (As if asking for a jury trial is a crime)

 

50.       "But I couldn't be more emphatic in telling you, that if there is ever a case, in which a plaintiff deserves a favorable consideration from the jury, I don't know if I've ever seen one."

(lawyer again not being very honest in the court!)

 

51.       The Court, Birnbaum, and the State of Texas were again deprived of "honest service" on the part of Richard L. Ray as an officer of the court.

 

Predicate Act 11

Ray's more and more motions for "Entry of judgment"

52.       On July 24, 1998, at the first of Ray's hearings on "motion for entry of judgment", I examined him as to the meaning of ZERO damages.  Also Ray had his proposed injunction all screwed up (wanting to put "not" all over the place, remove other "nots", double negatives, etc. VERY REVEALING.

           

53.            Another hearing on Oct. 6, 1998, "Amended Motion for Entry of Judgment", for which I hired an attorney ($2,500 "legal fees") makes it clear that Mr. Ray was not a "winning party", and that he also does not qualify for "attorney fees" under his pleading, and of course is not entitled to "attorney fees" even if he had been entitled to an "injunction". VERY REVEALING.

54.       At the end of the hearing a gathering occurs at the bench, for about 40 minutes (with the whole courtroom waiting) between Martin Bennett, my attorney, Judge Zimmermann, and Ray. I heard phrases from the bench such as "I wanted to be sure you knew", and something about my opinion of the "judicial system", whatever Zimmermann may have meant about that to my attorney.

55.       When the gathering at the bench ended I went out into the hall. Shortly afterwards my lawyer comes into the hall, and tries to persuade me that for $2500 paid to Ray (for "legal fees", I guess), the whole thing could be over. I decline the $2500 proposal brought from the courtroom.

           

56.       At yet another hearing on Aug. 17, 1999, again "Motion To Enter Judgment", another "over-the-weekend" notification job, Judge Zimmermann could not remember if he had recused himself from the case: VERY REVEALING.

THE COURT:   I'm not absolutely positive, but I believe I entered an order recusing myself.

MR. RAY:         Did you, Judge?

THE COURT:   I may be mistaken.

MR. RAY:         If that's the case, I request a new setting on the case.

 

THE COURT:   Now I am not certain whether or not I have filed a motion to recuse. I think I have, but I'm not sure. If I have not, I intend to do so today.  I will now, in an abundance of caution, enter this, my oral order into the record, recusing myself from any further proceedings to do with Cause No. 95-63  …

 

57.       On April 24, 2001, THREE YEARS after the verdict on May 29, 1998, Ray submits another "Request for Setting Form", again for "Motion for Entry of Judgment".

58.       The Court, Birnbaum, and the State of Texas were again deprived of "honest service" on the part of Richard L. Ray as an officer of the court.

 

SUMMARY OF THE PATTERN

59.       The acts of "racketeering activity" shown above show a "pattern of racketeering activity" within the meaning of 18 U.S.C. § 1961(5).  The acts are not isolated events, but relate to each other by virtue of a common participant, a common method of commission, and the common purpose and common result of defrauding of honest service by a pattern of deception and lying by an officer of the court contrary to the duties of his position.

 

THE VIOLATION OF RICO

Allegations to each jury "issue of fact"

(from U.S. Fifth Circuit civil RICO pattern jury instructions)

 

COUNT 1 - RICO - violation of 18 U.S.C. $ 1962(c)

"to conduct or participate, directly or indirectly,  in the conduct of an enterprise's

 affairs through a pattern of racketeering activity".

 

See Appendix 'A', Pattern Jury Instructions

 

60.       The 294^th District Court of Van Zandt County, Texas is an "enterprise".

(as defined in RICO)

 

61.       The "enterprise" engaged in, or had some effect upon, interstate or foreign commerce. (Mails letters, uses interstate capable communications equipment, uses equipment made in other states, etc)

 

62.       The Defendant was employed by or associated with the enterprise.

(As an officer of the court)

 

63.       The Defendant participated in the operation or management of the enterprise itself in such a way, directly or indirectly, as to have played some part in directing the affairs of the enterprise. (He is part of the court "process" as an attorney "officer of the court")

 

64.       The Defendant in fact engaged in the pattern of racketeering activity as the plaintiff claims. (As shown by the acts of "racketeering activity" shown above)

 

65.       The Defendant's association with or employment by the enterprise facilitated his commission of the racketeering acts. (He could not have committed the "predicate acts" of "racketeering activity" except as an attorney officer of the court)

 

66.       The commission of these predicate acts had some direct or indirect effect on the alleged enterprise.  (Made the court issue process, deprive me of process, issue unlawful judgment, unlawful sanction on me, take up its time, get in visiting judges, pay court reporters, clog the docket, etc.)

 

 

COUNT 2 - RICO - violation of 18 U.S.C. $ 1962(b)

"through a pattern of racketeering activity, acquired or maintained, directly or indirectly, any interest in or control of any enterprise which engaged in, or the activities of which affect, interstate or foreign commerce?"

 

See Appendix 'A', Pattern Jury Instructions. Same "enterprise", "pattern of racketeering activity". Affirmative findings to all jury issues of fact thereto can be made from the "Pattern Of Racketeering Activity" as shown above, including:

 

67.            Through the pattern of racketeering activity the defendant acquired or maintained an interest in, or controlled the enterprise.

(Through the pattern of racketeering activity he was able to just run over people in the name of the court.)

 

COUNT 3 - RICO - violation of 18 U.S.C. $ 1962(a)

"receive any income derived, directly or indirectly, from a pattern of racketeering activity in which that defendant participated as a principal, and that the defendant used or invested, directly or indirectly, any part of that income, to acquire an interest in, establish, or operate an enterprise which is engaged in, or the activities of which affect, interstate commerce?

 

See Appendix 'A', Pattern Jury Instructions. Same "enterprise".  Affirmative findings to all jury issues of fact thereto can be made from the "Pattern Of Racketeering Activity" as shown below, except for the following:

 

68.            Some part of that income was used in acquiring an interest in or operating the enterprise. (Campaign contributions to Judge Wallace, even when he had no opponent, year after year after year)

 

CAUSATION OF INJURY

69.            Plaintiff's injury was "by reason of" Defendant's RICO violation.  Injury was produced by Defendant's "acts of racketeering activity", "pattern of racketeering activity", and "conduct of the affairs of the enterprise through the pattern of racketeering activity". (See attached Exhibit "A", "Pattern Jury Instructions", page 6-7, CAUSATION).

 

INJURY

 "by reason of the RICO violation"

70.       All this thrashing in the 294^th District Court, all produced by Mr. Ray's RICO violations as shown above, attracted other sharks (rogue lawyers) hungry for "legal fees".

            One of these was a certain Dallas lawyer by the name of G. David Westfall (now deceased) who solicited me unbeknownst to me. He promised to "save" me, if I were to pay $20,000 up front, and I did. I did not recognize my injury until late in 1999 when I discovered that I had been taken, and I fired him.

            As if this were not enough, he went on to fabricate a $18,121.10 "bill", filed suit in the 294^th District Court, a court where things can be made to move behind the courtroom as shown above. Anyhow, by a pattern of lying he was able to obtain judgment for about $122,000. Other expenses of about $10,000 were also produced.

"Legal fees", more "legal fees", and "legal fees" for collecting on fraudulent  "legal fees". 

 

71.       But for Richard L. Ray's RICO violation I would never have been entangled in the 294^th District Court, not with Ray, not with Westfall, not with anybody else. All my injury resulted from Ray's unlawful acts of racketeering activity, pattern of racketeering activity, and conduct of the affairs of the court through the pattern of racketeering activity.

 

 

SUMMARY OF THIS CAUSE

72.       The RICO violation and scheme can be clearly seen from the "predicate acts" of "racketeering activity" constituting the "pattern of racketeering activity" as shown above. The Defendant's scheme was to use his attorney license to "participate in the conduct of the affairs" of the 294^th District Court of Van Zandt County, Texas by fabricating a "beaver dam" scheme, and to execute the scheme by depriving the Court, Birnbaum, and the State of Texas of the "honest service" he owed as an "officer of the court".

"Legal fees", more "legal fees", and "legal fees" for collecting on "legal fees". As one justice once said, suits on legal fees must certainly be the "least socially productive activity" that he could think of.

73.       Before Richard L. Ray's fraudulent "beaver dam" scheme, I had only been in the Courthouse to pay for license plates! 

74.       But for Richard L. Ray's RICO violation I would not have been injured as I was.

 

PRAYER FOR RELIEF

            Wherefore, Udo Birnbaum respectfully requests that judgment be entered against Richard L. Ray.

      Defendant's conduct was knowing, intentional, with malice, demonstrated a complete lack of care, and was in conscious disregards for the rights of Birnbaum.  Birnbaum is therefore entitled to an award of punitive damages. Birnbaum seeks judgment as follows:

(a)    For damages of not less than $150,000

(b)   For the costs of suit, including reasonable attorney's fees, if any

(c)    Pre-judgment interest at the maximum rate allowed by law

(d)   Post-judgment interest at the maximum rate allowed by law

(e)    Punitive damages in an amount as the jury may award at its discretion

(f)     A permanent injunction prohibiting him from litigating in the 294th  District Court of Van Zandt County.

(g)    Such other relief, legal and equitable, special or general, as the Court deems proper and just

 

BIRNBAUM HEREBY DEMANDS  A TRIAL BY JURY

 

 

Respectfully submitted,

 

____________________

Udo Birnbaum, Pro Se

540 VZ CR 2916

Eustace, Texas 75124

(903) 479-3929

 

 

Att. "A", Pattern Jury Instructions for civil RICO