UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Sean David Morton
Plaintiff/Petitioner – Appellant, Pro Per
Case No. 17-50351
expedited emergency motion for summary disposition
Proper for equity and common law like powers in the interest of justice
EXPEDITED MOTION FOR SUMMARY DISPOSITION
Comes now Sean David Morton, one of the people of California and in this court of record demands expedited summary disposition of the case and judgment against him based on judicial estoppel. There is no reason to do a full appeal and brief because this case should be tossed out based on simple issues that are full bars and not on the merits. Justice delayed is justice denied.
Because this case was brought as part of the DoJ and IRS targeting scandal to suppress Sean’s 1st amendment rights to free expression, right to associate and right to be non-commercial media justice should not be delayed. This court is empowered to use it’s equity or common law like powers to restore Sean’s life, property, rights and interests taken in error with no due process.
This court is empowered to hear this issue for the first time on appeal using their equitable or common law like powers. Based on recently found additional Brady evidence the DoJ has changed their theory of the case and were operating under a completely different theory of criminal liability as opposed to the previous two prosecutions of the architects Adams and Hall. In the other cases in 2010 and 2014-2017 the government says there is evidence that Adams and Hall are the sole cause who created and caused the same offenses. The evidence in this case is the same exhibits as in the government’s prior cases against the architects. Exhibit 7 in this case even has a paper marked Exhibit 2 that covers up some numbers on a tax return, which was used as Exhibit 2 in the Adams injunction.
To be clear, after investigating the government ordered that Sean and Melissa needed to be informed of the injunction. This situation where Sean and Melissa are specifically named as victims of other people who the government prosecuted and publicized as the cause of the offenses is a complete bar to this case. Smith v. Groose, 205 F.3d 1045 (8th Cir.),cert. denied, 531 U.S. 985 (2000) Prosecution argued contradictory facts in two different but related trials.
In the US v Hall oral argument in 9th circuit February 16, 2017 there was a debate whether Hall had the required specific intent to defraud to sustain his conviction. The government and 9th circuit judges emphatically agreed that it’s ‘common sense’, the ones being defrauded are the deluded clients who tried to do what Hall did because he told them it would work. Sean testified he is a client of Hall’s who charged him $6000. (the government well knew this already since they have the evidence and chose to convict clients) and Sean testified he felt he was defrauded by Hall. If Sean is considered culpable and not defrauded in this case then Halls and Adam’s conviction in the other case is invalid because the clients are not defrauded by Hall like the government and judges agreed. This case is barred by the doctrine of absurdity, issue preclusion and judicial or equitable estoppel.
Sean contends that this manipulation of the evidence deprived him of due process and rendered his trial fundamentally unfair. The governments use of factually contradictory theories in this case constituted “foul blows, “error that fatally infected Sean’s conviction. Even if our adversary system is “in many ways, a gamble, “Payne v. United States, 78 F.3d 343, 345 (8thCir.1996), that system is poorly served when a prosecutor, the government’s own instrument of justice, stacks the deck in his favor. The government’s duty to its citizens does not allow it to pursue as many convictions as possible without regard to fairness and the search for truth. In this case there was impermissible motive to cheat and the contrary position is not inadvertent, it was orchestrated as a political hit and the contrary position was deceitfully not revealed to the court or Sean by the government.
The Supreme Court observed in New Hampshire v. Maine, 532 U.S. 742, 743 (2001), that “[c]ourts have recognized that the circumstances under which judicial estoppel may appropriately be invoked are not reducible to any general formulation,” and that “[a]dditional considerations may inform the doctrine’s application in specific factual contexts.”
The Court listed the following factors for consideration:
First, a party’s later position must be clearly inconsistent with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled. Third, courts ask whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose unfair detriment on the opposing party if not estopped.
All three elements are met for judicial estoppel in this case. Of course the government has already benefited and would continue to derive an unfair advantage and Sean is entitled to restrain further unfair harm and detriment through judicial or equitable estoppel. Just because the government did not criminally convict the architects does not foreclose the remedy of estoppel. The public record is clear there was a civil injunction in 2010 that says “consequently” of Adam’s Sean and Melissa filed false claims and amendments. That’s it, case closed, it does not matter that Adams wasn’t criminally indicted for what he caused, he was civilly enjoined using the same exhibits because the government said Adams caused his unknowing clients like Sean to file false claims. In the Hall oral hearing 2017 and in the surrounding DoJ publicity the governments position is that Adams and his partner Hall created and caused the submission of 149 money orders to IRS. Case closed, the government has the evidence of who really caused this mess and agreed the buyers like Sean were defrauded (meaning victim).
In this case if a new precedent needs to be made, so be it. There is no way the government shouldn’t be estopped merely because they took advantage of a loophole by not criminally charging the architects. In fact it’s so much more outrageous than a standard situation where judicial estoppel applies because the government had the foresight not to charge the architects whilst admitting they are the sole cause of the victims harm. There needs to be a protection for victims charged instead of the ones who defraud them, judicial estoppel absolutely applies because equity cannot allow something so unfair and frankly absurd.
And exhaustively by the California Supreme Court: The appellate court concluded, “the use of inconsistent, irreconcilable theories to convict two defendants for the same crime is a due process violation.”(Stumpf, supra, 367 F.3d at p. 611.) The vice rests in the fact that of two inconsistent and irreconcilable theories, one must be false: “Because inconsistent theories render convictions unreliable, they constitute a violation of the due process rights of any defendant in whose trial they are used.”(Id. at p. 613.) In Stumpf, the state had clearly used such irreconcilable theories, for each proceeding, the prosecutor argued that the defendant had been the one to pull the trigger, resulting in the fatal shots to [Mrs.] Stout.”(Ibid.)These courts and judges have found a prosecutor’s 180-degree change in theory “deeply troubling”(Jacobs v. Scott, supra, 513 U.S. at p. 1069, 115S.Ct. 711), in part because by taking a formal position inconsistent with the guilt or culpability of at least one convicted defendant, the government, through the prosecutor, has cast doubt on the factual basis for the conviction. “If the prosecutor’s statements at the Hogan trial were correct, then Jacobs is innocent of capital murder.” (Ibid.) “The conclusion seems inescapable that the prosecutor obtained Henry Drake’s conviction through the use of testimony he did not believe ….”(Drake v. Kemp, supra, 762 F.2d at p.1479.) “The prosecutor … at Leitch’s trial essentially ridiculed the theory he had used to obtain a conviction and death sentence at Thompson’s trial.”(Thompson, supra, 120 F.3d at p. 1057.) As both of two irreconcilable theories of guilt cannot be true, “inconsistent theories render convictions unreliable.”(Stumpf, supra, 367 F.3d at p. 613.)Because it undermines the reliability of the convictions or sentences, the prosecutions use of inconsistent and irreconcilable theories has also been criticized as inconsistent with the principles of public prosecution and the integrity of the criminal trial system. A criminal prosecutor’s function “is not merely to prosecute crimes, but also to make certain that the truth is honored to the fullest extent possible during the course of the criminal prosecution and trial.”(United States v. Kattar (1st Cir.1988) 840 F.2d 118, 127.) His other goal must be “not simply to obtain a conviction, but to obtain a fair conviction.”(Brown v. Borg (9th Cir.1991) 951 F.2d 1011, 1015.) “Although the prosecutor must prosecute with earnestness and vigor and `may strike hard blows, he is not at liberty to strike foul ones.'”(Smith, supra, 205 F.3d atp. 1049,quotingBerger v. United States (1935) 295 U.S. 78, 88, 55 S.Ct. 629,79 L.Ed. 1314;see also ABA Model Code Prof. Responsibility, EC 7-13[“The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict”].)For the government’s representative, in the grave matter of a criminal trial, to “chang[e] his theory of what happened to suit the state” is unseemly at best.(Drake v. Kemp, supra, 762 F.2d at p. 1479.) “The state cannot divide and conquer in this manner. Such actions reduce criminal trials to mere gamesmanship and rob them of their supposed purpose of a search for truth.”(Ibid.) Thus, even a court that did not believe inconsistent positions, by themselves, to be constitutional error found it “disturbing to see the Justice Department change the color of its stripes to such a significant degree …depending on the strategic necessities of the separate litigations.”(UnitedStates v. Kattar, supra, 840 F.2d at p. 127;see alsoThompson, supra, 120F.3d at p. 1072 (dis. opn. of Kozinski, J.)[prosecutor’s use of inconsistent factual theories “surely does not inspire public confidence in our criminal justice system”].) In re Sakarias, 106 P. 3d 931(Cal. 2005).23.
The government’s new position that Sean prepared and presented the claims to IRS is contrary to the old position(s) that Adam’s and Hall are the cause of the tax related issues in count 1-7. It’s also contrary to the governments witness Everson who testified Sean and Melissa’s returns were transmitted by Adams in 2009. In common law the indictment is invalid because falsus in uno, false in one false in all.
If the government says Adams and Hall defrauded their deluded clients they cant also say the defrauded clients should bear the full criminal liability instead of Adam’s and Hall. If Adams and Hall defrauded the government and their clients like Sean then its absurd to think the clients are the defrauders or the cause of the false claims that were complete when filed by Adams.
This makes a mockery of the judicial system. Sean is entitled to be acquitted or the case dismissed with prejudice. The government concedes special equipment was used and the IRS became involved due to acts caused by Adams and Hall. Sean obviously did not act knowingly because the government ordered Adams to inform Sean Sept 28 2010. The governments new bare assertion that Sean knew back in 2009 or ever knew there was a possibility he was involved in criminality for any count is absurd. Judicial estoppel is to prevent these types of contradictory absurdities and abuse of the system.
The government’s use of inherently factually contradictory theories violates the principles of due process, makes a mockery of the court’ and is a bar to Sean and Melissa’s convictions as a matter of law.
OVERCOMING EQUITABLE OR JUDICIAL ESTOPPEL, ISSUE PRECLUSION OR DOCTRINE OF ABSURDITY
FIRST ELEMENT IMPOSSIBLE TO OVERCOME
First element to overcome, a party’s later position must be clearly inconsistent with its earlier position.
- The government must prove that there is no inconsistency between the governments old position that “consequently of Adams” Sean and Melissa filed false claims and amendments (through Garrett Adams TCC electronic filing number that transmitted the claims) and the governments new position that Sean and Melissa made and presented the claims themselves.
- The government must prove that there is no inconsistency between the governments old position that after a $37,000. IRS investigation into Adams the government thinks Sean and Melissa should be informed (ie: because they were clueless clients as of the September 28 2010 injunction and order) and the governments new position that Sean and Melissa had knowledge of a conspiracy 2009-2013 that they joined to defraud the functions of IRS
- The government must prove that there is no inconsistency between the governments old position that Hall and Adams created and caused 149 instruments sold to their clients (the government admits Sean and Melissa are those clients who learned of bonds from Hall) and the new position that Sean and Melissa created and caused the instruments themselves
THE SECOND ELEMENT IMPOSSIBLE TO OVERCOME
Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled.
- The government must prove the court was not mislead because the first court did not accept the governments earlier position that Adams taught the oid process in seminars to clients such as Sean and Melissa and indeed the real truth is Sean “figured out the oid process on his own” like Valerie told the judge
- The government must prove the court was not mislead because indeed the first court didn’t accept the governments prior position that Adams is a public danger who needs to be enjoined from preparing taxes and be ordered to inform Sean and Melissa and indeed the real truth is Sean had the knowledge and ability to create and transmit tax returns, oid’s and claims to IRS and decided to do so with his wife Melissa in a scheme to stop IRS from functioning
- The government must prove the court was not mislead because the Ninth Circuit and lower court in the Adams and Hall cases did not accept the governments prior position that Adams and Hall created and caused 149 money orders proved by ‘extensive evidence in the record’, indeed the truth is Sean made the checks on check stock like Valerie told the judge
- The government must prove the court was not mislead because the indictment is not false when it accuses Sean and Melissa of doing acts that only Adams and Hall had the equipment and knowledge to do
EQUITY DEMANDED IN THE INTEREST OF JUSTICE
Third, courts ask whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose unfair detriment on the opposing party if not estopped.
This speaks for itself, obviously the government derives an unfair advantage by creating a ‘number of cases nationwide’ against victim clients they decided to target for political beliefs and obviously the situation is so inequitable it clearly imposes unfair detriment on Sean who shouldn’t be imprisoned for impermissible motives if not estopped.
If the prosecutors want an extension they need to provide an affidavit signed under oath of why these simple issues cannot be answered in a timely manner of seven days. The least the prosecutors can do is to sit down, focus and explain why they should prevail and why this motion should not be granted. If the case against Sean is so airtight and Sean should be imprisoned then it does not take long to explain why.
A man is in prison totally unfairly and impermissibly. Even one second of loss of a constitutionally protected right is irreparable injury. This expedited motion for summary disposition is about restoring the balance of equity and quickly in the interest of justice. The issues are not rocket science, and the government has had years to become familiar with every fact and the laws. The case against Sean is fully barred due to these issues therefore this motion should be resolved in Sean’s favor without delay. Justice delayed is justice denied.
First, Sean is clearly be entitled to relief on the merits. There is no “substantial” question for the court to decide. The merits of the case are “so clear” that “plenary briefing, oral argument, and the traditional collegiality of the decisional process will not affect [the] decision.”
Second, there is only one question of first impression in this court, or conflict among the courts on a controlling legal principle, and the issue is not a lynchpin, it could be omitted. The question is if non-negotiable is an exception to the definition of instrument in 514 and technically it could be resolved by simply referring to Congress definition of instrument in UCC Article 3. If that issue were to be an impediment to summary disposition then ignore it, because it’s a mere supporting issue that can be a bar to the 514 charges, but is not the main jurisdictional bar and can be easily omitted to focus on speedy remedy.
Third, the record before the court is sufficient to allow meaningful consideration of the appeal. Although the facts may not be entirely simplistic, the court can thoroughly grasp the issues without full briefing or oral argument.
Fourth, Sean has made a showing of exigency. A delay will substantially further harm Sean who claims he is entitled to have his life, property and rights restored. An expedited schedule for briefing an oral argument will be insufficient to prevent that harm. This is especially true because Sean’s free speech, media, loss of life and property considerations are at stake. Sean’s imprisonment causes an avalanche of irreparable injury including injuring the public right to have Sean be protected media. The longer the delay the more the public has cause to distrust the government and think the IRS targeting scandal is above reproach and the courts are not protecting the peoples rights to be free of oppression. Expediting remedy will restore trust in the courts and government after deep abuse and fractures in the system.
Finally, it is efficient and equitable to resolve the case through summary disposition instead of a “traditional” appellate process “with all the trappings.” Sean believes the courts strained resources are better expended on other cases, and that Sean will still receive all of the consideration that it is due on appeal.
United States v. Fortner, 455 F.3d 752, 754 (7th Cir. 2006) (“Summary disposition is appropriate in an emergency, when time is of the essence and the court cannot wait for full briefing and must decide a matter on motion papers alone.”); Groendyke Transp., 406 F.2d at 1162 (summary disposition may be warranted “where time is of the essence,” including “situations where important public policy issues are involved or those where rights delayed are rights denied”).
I verify the foregoing is true and correct, with firsthand knowledge.
The ninth day of the eleventh month of the year two thousand eighteen
In the interest of justice, Sean David Morton, all rights reserved