IN DEFENSE OF THE FINANCIAL ASSETS OF THE ELDERLY
Preface to My Legal Brief
The following is a legal brief I wrote and filed in 2004 in Federal District Court in Alabama in an attempt to create a legal precedent for protecting the financial assets of the elderly which are easily exploited, especially by corrupt judges and attorneys!!! I have not included the exhibits filed with the brief, nor does it give a full account of the issues I had hoped to bring out in open court. But due to the fact that I was suing attorneys, judges and the Probate Court of Jefferson County, Alabama with its sixty-plus year history of ripping of the retirement assets of the elderly, my suit was dismissed on a legal technicality so obscure that I could find no reference to it in any law book or via internet searches.
Attorney James M. Tingle, the architect of the “conspiracy” and “racketeering scheme” which is spelled out in legal terms in my brief, planned the rip-off of my parents’ estate while my father was still living and without his knowledge – this according to an associate in his in his own law firm. He fabricated the charges used to bring mother and me into court, hired the attorney who brought and prosecuted numerous court actions against us on his behalf, and seized and presumably destroyed all evidence he could find that could have been used to defend against his unlawful actions, and he did all this in order to get himself put in charge of my parents’ savings, investments and property. He has made a career of such exploitations of the elderly. He also sued me in circuit court using fabricated financial documents, while my documents were denied admission and my responses suppressed. And the list goes on… I’ve never encountered a more corrupt or lawless human being, with the possible exception of his attorney in this matter, Douglass McWhorter. “Birds of a feather…”
I have posted this legal brief for two reasons:
1. I have set forth what, so far as I can determine, is an entirely new legal approach to trying to halt the financial exploitation of the elderly – namely, going after those who mismanage, misappropriate and/or embezzle their assets under the criminal racketeering laws – Civil RICO. And, using a new approach to the Fourteenth Amendment, I have sought a way to establish civil rights and protections for the elderly which they do not at present enjoy under the rulings of the U.S. Supreme Court. The rights established by the Constitution of the United States and Bill of Rights should belong equally to all, whether young or elderly. At present, they do not, and judges know this.
2. I have exhausted all avenues available to me in Alabama in pursuit the right of due process and some kind of justice, but I believe that there are those elsewhere in our nation who may be able to take off from my ideas and approach and eventually gain the much-needed protection for the assets of the elderly. At present, judges can strip elderly persons of everything they have – savings, investments, homes, vehicles, even their Social Security – while denying them access to due process, attorney representation, any chance to object, or access to any constitutional rights. They can be denied access to their own financial assets for essentials such as food, prescriptions, healthcare, housing, transportation and other fundamental needs. Many – how many is anyone’s guess – die as a direct result of this abuse by our legal system. I hope someone who truly cares for the elderly, which is our most rapidly growing population, will find a way to make use of my embryonic legal efforts. It is the legal system itself which benefits most by this abuse! Who will take it on?
This brief is quite lengthy, but prior to writing and filing it my aged mother and I had been the targets of more than sixty-five legal actions by these defendants and not once been allowed an opportunity to respond in a court of law! Need I add that since filing this brief three years ago we have not been targeted by a single additional action? I knew absolutely no law when we came under attack. Had I been better informed, we might have been spared much suffering. Maybe my efforts presented here will benefit you or your loved ones.
Click any item in the outline below to jump to that section of the brief
PART I: Conspiracy and Racketeering
§1.1 Civil RICO Law: Issues and Elements 5
§1.1.1 Standing to Sue 5
§1.1.2 Pleading the Elements 6
§1.1.3 RICO Sections Invoked in this Pleading 7
§1.1.4 Association-in-Fact as a RICO Enterprise 8
§1.1.5 The Pattern of Racketeering Activity: Relationship & Continuity 9
§1.1.6 Injury to Business or Property 9
§1.1.7 The Question of Economic Motive 11
§1.1.8 Proximate Causation 11
§1.1.9 The Standard of Proof 12
§1.1.10 Concealment, Spoliation and Fraudulent Intent 12
§1.1.11 Association with an Enterprise and Its Affairs 15
§1.1.12 The Predicate Acts 16
A) Hobbs Act 17
B) Mail and Wire Fraud 18
§1.1.13 The Interstate Commerce Component 20
§1.1.14 Vicarious Liability 20
§1.1.15 Treble Damages 21
§1.1.16 RICO’s Statute of Limitations and Tolling 21
§1.1.17 Survival of Rico Claims 23
§1.1.18 Right to Jury Trial 23
§1.2 Pleading the Allegations 24
§1.2.1 Prolog to a Pattern of Elderly Exploitation 24
§1.2.2 The Association-in-Fact Enterprise 28
§1.2.2.1 The Composition and Conduct of the Enterprise 28
§1.2.2.2 Association with the Enterprise 30
§1.2.2.3 The Ongoing Organization 31
§1.2.2.4 Functioning as a Unit 32
§1.2.2.5 Shared Objectives 32
§1.2.2.6 Accomplishments to Date 33
§1.2.3 The Defendants as Conspirators and Racketeers 34
§1.2.3.1 Evidence of Conspiracy to Violate §1092(d) 34
§1.2.3.2 Shared Knowledge of Conspiracy’s Objectives 38
§1.2.3.3 Agreement to Violate §1962(c) 38
§1.2.3.4 Evidence of Intent to Defraud 39
§1.2.3.5 Malice, Defamation and Virulent Intent 40
§1.2.3.6 Extortion, Theft and Destruction of Property 45
§1.2.3.7 Adverse Inference 46
§1.2.4 The Pattern of Racketeering Activity 46
§1.2.4.1 Predicate Acts Forming a Pattern 47
§1.2.4.2 Nexus between Pattern and Association-in-Fact 48
§1.2.4.3 Proprietary Injuries Suffered By Reason of 49
§1.2.4.4 Affect on Interstate and Foreign Commerce 50
§1.2.4.5 Continuity and History of Suffering 50
§1.2.5 Injuries to Business and Property 51
§1.2.5.1 Discovery of Injury and the Statute of Limitations 51
§1.2.5.2 The Nature and Scope of Our Predicate Injuries 52
§1.2.5.3 Injuries Traceable to Unlawful Conduct 53
§1.2.6 The Predicate Acts 54
§1.2.6.1 Relation of Acts to Enterprise’s Affairs 54
§1.2.6.2 The Hobbs Act 56
A) Economic Injuries to the Estate of Frieda Eversole 59
B) Injuries to the Business and Livelihood of Finley Eversole 63
§1.2.6.3 Mail and Wire Fraud 67
§1.2.6.4 Claims for Damages 87
PART II: Violations of Our Civil and Constitutional Rights
§2.1 The Fourteenth Amendment: A Right to Our Rights 88
§2.2 A Constitutional Challenge to Alabama’s Voter Franchise 92
§2.2.1 A Matter of Rights 92
§2.2.2 A Brief History of Disability Prejudice 93
§2.2.3 "Incapacity" in the Context of the Twenty-First Century 94
§2.2.4 Changing Sociopolitical and Demographic Factors 94
§2.2.5 Only a Question of Constitutionality Remains 96
§2.2.6 The Last Suffrage Frontier: No Right Is More Precious 99
§2.3 State Action, Private Actors and the Fourteenth Amendment 101
§2.3.1 State Action in Violation of Constitutional Rights 101
§2.3.2 Joint Action between State Actors and Private Parties 102
§2.3.3 Constitutional Claims Under §1983 103
§2.3.4 An Example of §1983: State Control and Plaintiff’s Vulnerability 104
§2.3.5 Section 1985(3): Conspiracy Against Rights and Injury to
§2.3.6 Accrual and Tolling of Constitutional Claims 107
§2.3.7 Quid Pro Quo, Jurisdiction and Judicial Immunity 109
§2.3.7.1 Quid Pro Quo and the Integrity of the Law 109
§2.3.7.2 Jurisdiction and Judicial Immunity 112
§2.4 Due Process of Law 117
§2.4.1 The Requirements of Due Process of Law 118
§2.4.2 Violations of Frieda Eversole’s Due Process Rights 118
§2.4.3 Frieda Eversole’s Reaction to Her Exploitation 124
§2.4.4 The Guardian ad Litem’s Role in the Violations 125
§2.4.5 March 3, 2000: The Illegal Condo Lockout 127
§2.4.6 Alabama Opposes our Due Process Rights in Nashville 129
§2.5 Break-In and Trespass: Illegal Search and Seizure 131
§2.5.1 Break-In and Trespass 131
§2.5.2 Unlawful Search and Seizure 133
§2.6 The Right of Privacy 134
§2.6.1 Courts Define a Right of Privacy 134
§2.6.2 A Lawful Expectation of Privacy 136
§2.6.3 Eversoles Stripped of Privacy in State Action 137
§2.7 Property Rights 138
§2.7.1 James Madison on Property 138
§2.7.2 Of Freedom and Property 140
§2.7.3 Private Property and Due Process 141
§2.8 Liberty of Livelihood 145
§2.8.1 A Constitutional Right to Pursue a Livelihood 145
§2.8.2 My Illegally Seized Business and Loss of Livelihood 147
§2.8.3 Economic Rights and Traditions of Ordered Liberty 148
§2.9 Travel Rights and Probate Court Wrongs 150
§2.9.1 No, No, You Can’t Go 151
§2.9.2 A Constitutional Right to Travel 153
§2.10 Freedom of Speech and Press 155
§2.10.1 The Value of Free Speech 156
§2.10.2 Prior Restraint v. My Life’s Major Work 156
§2.10.3 The First Amendment and Due Process 158
§2.11 Gender Discrimination and Elderly Exploitation 159
§2.12 Family Rights and Civil Liberties of the Elderly: Avenues to
§2.12.1 Rational for the Ninth Amendment’s Use 161
§2.12.2 In Defense of the Ninth Amendment 164
§2.12.3 Judging of Unenumerated Rights: Criteria for Ninth Amendment
Inclusion 169
§2.12.4 Social History and Cultural Traditions 172
§2.12.5 The Benefits to Society 174
§2.12.6 Protection from Exploitation 174
§2.12.7 Defusing Needless Litigation 175
§2.12.8 Religion and Moral Law as Essential Rights 176
§2.12.9 Invoking a Penumbra of Protected Right on Behalf of the Elderly 179
§2.12.10 In Search of a Definition of Family Rights and Civil Liberties
Protective of the Elderly 181
§3.1 Claims for Damages and Remedies Sought 185
§3.2 Prayer for Relief 187
§3.3 Motion to Preserve Evidence 187
§3.4 Plaintiffs Demand Trial by Jury 188
§3.6 Exhibits 192
THE BRIEF
The following brief was filed in The United Stated District Court for the Northern District of Alabama, Southern Division, on April 16, 2004, and subsequently dismissed.
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
Finley Traweek Eversole, §
Plaintiff. §
Frieda Traweek Eversole, §
Plaintiff. §
§ C.A. No. CV-04-HS-0424-S
v. §
§ Plaintiffs’ Amended Complaint
Kenneth E. Traweek, §
Defendant. §
Helen Traweek, §
Defendant. § Jury Demand
James M. Tingle, §
Defendant. §
Hand Arendall, LLC, §
Defendant. §
Douglas McWhorter, §
Defendant. §
Donald Colee, Jr., §
Defendant. §
Daniel T. Hull, §
Defendant. §
Joyce Traweek Burbank, §
Defendant. §
George R. Reynolds, §
Defendant. §
Michael F. Bolin, §
Defendant. §
Probate Court of Jefferson County §
Defendant. §
N. Daniel Rogers, Jr. §
Defendant. §
I. Ripon Britton, Jr., §
Defendant. §
John Doe, §
Defendant. §
Jane Doe, §
Defendant. §
Plaintiff’s Original Complaint filed: March 2, 2004 2:40 P.M.
“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, [and] the Laws of the United States….”
“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”
Federal Jurisdiction: Federal Jurisdiction in this action is conferred by:
The Constitution of the United States, Article III § 2; Article IV § 2 & § 5
28 U.S.C. § 1331
18 U.S.C. § 1961(1)(b),(2),(3),(4)&(5)
18 U.S.C. § 1962(c)&(d)
18 U.S.C. § 1951(a), (b)(1)(2)&(3)
18 U.S.C. § 1341
18 U.S.C. § 1343
18 U.S.C. § 1346
18 U.S.C. § 1964(a)&(c)
18 U.S.C. § 1965
42 U.S.C. § 1983
42 U.S.C. § 1985(3)
18 U.S.C. § 241
28 U.S.C. § 1343
First Amendment of the U.S. Constitution
Fourth Amendment
Fifth Amendment
Seventh Amendment
Ninth Amendment
Fourteenth Amendment, § 1
Twenty-Sixth Amendment, § 1
Personal Jurisdiction: Personal jurisdiction is satisfied as plaintiffs and defendants are all residents of the State of Alabama.
Venue: Proper venue is provided by the United States District Court, Northern District of Alabama, in accordance with 28 U.S.C. § 1391(b)(1)(2), as the majority of events and omissions giving rise to this action have Jefferson County, Alabama, as their place of origination.
Pendant State Actions: No pendant state action is contemplated. Given that the plaintiffs in this case are elderly (ages 70 and 93), it is in the interest of justice and fairness to the plaintiffs – too long deprived of their assets and rights! -- that this case be allowed to go forward in federal court as expeditiously as possible.
Relief Sought: Treble damages under RICO, compensatory and punitive damages for personal injuries and constitutional rights violations, plus litigation costs, attorney fees, and expert fees if applicable, plus the return of properties unlawfully taken, and reparative and injunctive relief as specified. It is for the court or jury to determine the merits of other punishments as prescribed by law.
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Pleading Pro Se: I am proceeding pro se as we have no other option. As Frieda Eversole’s son, legal guardian, and holder of her Durable Power of Attorney, and at her request, I am also acting on her behalf. Ours is a joint action based on common or related claims.[1] (Cf. 28 U.S.C. § 1654 & 28 U.S.C. § 452)
I recognize the difficulty confronting a pro se and have carefully read Meeting the Challenge of Pro Se Litigation.[2] It is my intention to adhere to all legal and court proceedings to the best of my knowledge and understanding. "What is a difficult or doubtful question of law demanding the application of a trained legal mind is not to be measured by the comprehension of a trained legal mind but by the understanding thereof which is possessed by a reasonably intelligent layman who is reasonably familiar with similar transactions. The test must be applied in a common-sense way which will protect primarily the interest of the public and not hamper or burden such interests with impractical and technical restrictions which have no reasonable justification." State Bar of New Mexico v. Guradian Abstract and Title Co., 575 P.2d 943, 948 (NM 1978). It is hoped therefore that our case will not be defeated on the basis of some legal technicality only a trained attorney would know (cf. also remarks of Judge Posner in Merritt v. Faulkner, 697 F2d 761 (7th Cir. 1983) (Posner, J., concurring and dissenting)). In Haines v. Kerner, 404 U.S. 519, 520 S.Ct. 594 (1970), the Supreme Court held that a pro se litigant’s pleadings must be held to “less stringent standards than formal pleadings drafted by lawyers” and can only be dismissed for failure to state a claim if it appears "'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Id. at 520-521, quoted in Conley v. Gibson 355 U.S. 41, 45-46 (1957). Further, "Pro se plaintiffs should be given an opportunity to amend their complaints to overcome any deficiencies unless it clearly apparent the deficiency cannot be overcome by amendment." Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986) "The Federal Rules rejects the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits. According to rule 8(f) FRCP all pleadings shall be construed to do substantial justice." (Justice Black in Conley v. Gibson, 355 U.S 41 at 48 (1957))
I have no interest in trying the court’s patience and shall attempt an informed, reasoned and responsible presentation of our claims in the hope that one day we’ll see the light at the end of the legal tunnel. We appreciate this opportunity to present our case.
The Scylla and Charybdis between which I must negotiate my way are the fact that I’m not an attorney with legal training, yet am mindful that any law or complaint not invoked in the original pleadings may not be later invoked. To this must be added the fact that many of the allegations set forth require pleading with particularity, and some legal argument appears required on issues of law. Therefore, as a pro se, I err on the side of inclusiveness in order not to loose our rights. The unessential can be jettisoned later.
I contacted the Clerk of the Federal District Court, Northern District of Alabama, for any special requirements or instructions as to content or style of my complaint and was informed that there are none, that I am free to draft our complaint in whatever way I felt best presents and pleads our case. Having no prior experience with pleadings, I have taken federal court decisions I’ve studied as my guideline. Law, facts, legal citations, reasoned arguments, jurisprudence, and history are all invoked. When Frieda Eversole (hereafter, mother) and I were first hauled into the Probate Court of Jefferson County in June, 1999, we were extremely naïve. I knew nothing of the law and assumed it worked as portrayed on TV. A grave error. Consequently, this pleading represents a best effort to inform myself of the law and of our rights in the absence of legal counsel and access to law libraries and costly Internet sites such as Lexis-Nexis. Since June 1999, we have suffered profound injustices, and this action is an effort to regain our rights and be compensated for the wrongs we’ve endured.
Any number of the issues to be litigated appear to have no exact legal precedent in federal case law. In such instances, I will reason from the closest analogy or legal opinion I can find. In those instances where I shall argue for an extension of existing law, I shall provide what I believe to be informed, sound and compelling reasons for such extensions. While such arguments could doubtless be better made by a competent attorney, as a pro se I must do what I can. As elderly victims of injustice, we’ve endured enormous suffering, and I’d like to think the halls of justice will be a bit more receptive to the elderly and their rights in the future because of our experiences and challenges to the law. If justice comes to only one person at a time, it will never come to all. Whole classes require their legal rights and legal precedents to protect them. While we’ve suffered much hurt and anger, my present task is to call upon reason, law, justice, fairness, equity, and the right to our rights in the hope of advancing the rights of many. In that spirit, I proceed. These pleadings deal with criminal and civil rights issues and are fully self-explanatory.
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Introduction
The appointment of a guardian and conservator by the Probate Court of Jefferson County, Alabama, on November 1, 1999, is not the basis of this litigation. While such appointments were unnecessary and motivated by greed, it is rather the extensive injury which has resulted – the many violations of our legal and constitutional rights, the RICO conspiracy and predicate acts, and substantial financial injury to business and property suffered by Frieda Eversole and Finley Eversole -- which is the basis of this Federal action.
PART I: CONSPIRACY AND RACKETEERING
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§1.1 Civil RICO Law: Issues and Elements
A clear statement of the law provides an ordered framework for the pleading of specific allegations. This is my first task.
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§1.1.1 Standing to Sue
Standing to sue under civil RICO is established by 18 U.S.C. §1964(c) as follows:
Any person injured in his business or property by reason of the violation of section 1962 of this chapter may sue therefore 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.[3]
As for standing to sue under §1962(c), the Supreme Court, in Sedima, S.P.R.L. v. Imrex Co., has offered the following guidance:
[A] plaintiff only has standing if, and can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation.... Where the plaintiff alleges each element of the violation, the compensable injury necessarily is the harm caused by predicate acts sufficiently related to constitute a pattern, for the essence of the violation is the commission of those acts in connection with the conduct of an enterprise. Those acts are, when committed in the circumstances delineated in §1962(c), "an activity which RICO was designed to deter." Any recoverable damages occurring by reason of a violation off §1962(c) will flow from the commission of the predicate acts.[4]
A claim filed under §1962(d) typically requires a violation under sections (a), (b) or (c). A conspiracy need not have been successful to violate §1962(d).
A victim of racketeering activity, who has suffered injury to his business or property through a pattern of criminal conduct by defendants affiliated with a racketeering enterprise, is, under RICO law, granted the role of “a private attorney general” with a personal stake in enforcing RICO’s provisions.
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§1.1.2 Pleading the Elements
Pleading the elements of civil RICO is a complex matter and all the more so for a pro se. Choosing a standard with which to comply may help to avert difficulties further on. Such a standard is provided by the Second Circuit's decision in Moss v. Morgan Stanley, Inc.: [5]
[Plaintiff] must allege the existence of seven constituent elements: (1) that the defendant (2) through the commission of two or more acts, (3) constituting a "pattern" (4) of "racketeering activity" (5) directly or indirectly invests in, or maintains an interest in, or participates in (6) an "enterprise" (7) the activities of which affect interstate or foreign commerce. Plaintiff must allege adequately defendant's violation of section 1962 before turning to the second burden -- i.e. invoking RICO's civil remedies of treble damages, attorney fees and costs. To satisfy this latter burden plaintiff must allege that he was (8) "injured in his business or property by reason of”" a violation of section 1962.
Pleading intent only requires pleading the mens rea necessary to commit the alleged predicate offenses. Rule 9(b) states, "Malice, intent, knowledge, and other conditions of a mind of a person may be averred generally." However, it is worth noting that the Second Circuit has endorsed "reckless indifference to the truth" as sufficient intent for mail fraud allegations.[6] The Fifth Circuit has likewise held that "the intent to defraud is imputed to civil RICO defendants who act with the reckless indifference to the truth or falsity of their representations."[7]
As for pleading conspiracy, courts have held that a plaintiff should "plead the facts constituting the conspiracy, its object, and accomplishment."[8] Concerning the degree of specificity required, another court has said:
It goes without saying that conspiracies are secret operations; hence, courts merely require that plaintiffs plead an agreement and facts from which one can infer an agreement. It is immaterial that at the pleading stage, a plaintiff cannot point to a specific telephone conversation or face-two-face meeting. Moreover, it is somewhat disingenuous to assert that [plaintiff] failed to allege any contact between the Defendants when it is clear from the facts that Defendants were all executives of the same firm, operated out of the same office, and like as not had daily contact with each other.[9]
What is said here of company executives is clearly apropos attorneys and judges who routinely associate.
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§1.1.3 RICO Sections Invoked in this Pleading
Most civil RICO claims alleging violation of §1962(c) makes it unlawful "for any person employed by or associated with any enterprise...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."
A RICO enterprise need not benefit financially or otherwise from its racketeering activities. Nevertheless, a nexus must be established between the enterprise’s affairs and the pattern of racketeering activity or collection of an unlawful debt. Ascertaining the nature and structure of the nexus is one of the primary tasks posed by §1962(c)’s language. Much of the difficulty was resolved by the Supreme Court decision in Reves v. Ernst & Young:
“An enterprise is ‘operated’ not just by upper management but also by lower-rung participants in the enterprise who are under the direction of upper management. An enterprise also may be ‘operated’ or ‘managed’ by others ‘associated with’ the enterprise who exert control over it as, for example, by bribery.”[10]
Section 1962(d) makes it unlawful “for any person to conspire to violate any of the provisions of sections (a), (b), or (c) of this section." A §1962(d) violation arises from an agreement to violate one or more of 1962’s three substantive subsections, and persons suffering proprietary injury by reasons of the conspiracy may recover under §1964(c). As a threshold matter, a RICO conspiracy does not require allegation or proof of an overt act. Because conspiracy focuses on agreement, a plaintiff may allege injury by reason of racketeering acts or as a consequence of the conspiracy itself. Evidence of agreement may be either direct or circumstantial. Nor need a plaintiff show that a defendant knew all co-conspirators' identities, or all details of the conspiracy, or have participated in every phase of the conspiracy. Plaintiff need only show that the defendant knew the enterprise's essential nature and scope and intended to participate in the enterprise's affairs. To alleged that a defendant agreed to participate in a pattern of racketeering activity in a manner violative of §1962(a), (b) or (c), plaintiff need only show that defendant agreed to join the conspiracy with knowledge that other conspirators would violate RICO by committing two or more predicate acts. As §1962(d) concerns conspiracy, not fraud; it may be pled in conformity with Rule 8’s notice pleading.
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§1.1.4 Association-in-fact as a RICO Enterprise
Distinguishing between a RICO enterprise and its pattern of racketeering activity, Justice Byron R. White, in United States v. Turkette, stated:
The enterprise is an entity, for present purposes a group of persons associated together for a common purpose of engaging in a course of conduct. The pattern of racketeering activity is, on the other hand, a series of criminal acts as defined by the statute....The former is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit. The latter is proved by evidence of the requisite number of acts of racketeering committed by participants in the enterprise. While the proof used to establish the separate elements may in particular cases coalesce, proof of one does not necessarily establish the other. The "enterprise" is not the "pattern of racketeering activity"; it is an entity separate and apart from the pattern of activity in which it engages. The existence of an enterprise at all times remains a separate element which must be proved....[11]
Section 1961(4) defines an "enterprise" as any "legal entity" or "association-in-fact." It may include law firms, estates, trusts, and courts, including court offices and systems, as well as individuals. An association-in-fact enterprise consists of the associates' activities. Because §1961(4) does not restrict the compositions of associations that may constitute an enterprise, an association-in-fact may be comprised of any combination of individuals or entities. The courts have held, however, that an enterprise must have a common or shared purpose and some continuity of structure and personnel. A RICO plaintiff invoking a §1962 commerce nexus must allege that the enterprise has minimal engagement in, or a minimal effect on, interstate or foreign commerce.
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§1.1.5 The Pattern of Racketeering Activity: Relationship and Continuity
Acts indictable under civil RICO are enumerated in §1961(1). Among these are: interference with interstate commerce (Hobbs Act), extortion, and mail and wire fraud -- the predicate acts alleged in this action. The specific predicate acts are addressed separately below in §1.1.12.
A racketeering "pattern" must include two or more predicate acts committed within a ten year period (§1961(5)), at least one of which falls within the statute of limitations. Predicate acts, like other elements of civil RICO, need only be proved by a predominance of the evidence.
A RICO "pattern" is established by showing both continuity and relationship. In footnote 4 of H. J. Inc. v. Northwestern Bell Telegraph Co.,[12] the Court said:
[C]riminal conduct forms a pattern if it embraces criminal acts that have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.
Addressing the question of continuity, Justice Brennan said,
[T]he threat of continuity may be established by showing that the predicate acts or offenses are part of an ongoing entity's regular way of doing business. Thus, the threat of continuity is sufficiently established where the predicates can be attributed to a defendant operating as part of a long-term association that exist for criminal purposes….
The continuity requirement is likewise satisfied where it is shown that the predicates are a regular way of conducting defendant's ongoing legitimate business (in the sense that it is not a business that exist for criminal purposes), or of conducting or participating in an ongoing and legitimate RICO "enterprise."
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§1.1.6 Injury to Business or Property
Section 1964(a) of RICO creates a "private attorney general" provision modeled on §4 of the Clayton Act and renders any “injury to business or property” through violation of any of the acts proscribed under §18 U.S.C. §1961(b) a federal offense. The required injury need only be of a de minimis nature.
The "core component" required is an allegation of a "personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief."[13] Were a violation is proved, a civil RICO judgment may be sustained where even a single predicate act is the cause of the plaintiff’s proprietary injury.[14] In Sedima, the court held that §1964(c) does not limit the nature of the proprietary injury a plaintiff must allege. According to the court, "If the defendant engages in a pattern of racketeering activity in a manner forbidden by [§1962(a)-(c)], and the racketeering activities injure the plaintiff in his business or property, the plaintiff has a claim under §1964(c)." Courts have held that civil RICO provides redress for a whole range of tangible proprietary injuries and for such intangible proprietary injury as loss of business reputation.[15] Civil RICO’s "property" concept is broader than its "business" concept. The definition off "property" "contemplates something owned or possessed that an individual has a legitimate claim of entitlement to."[16] In a §4 action under the Clayton Act, most courts hold that a person alleges injury to business by alleging that the defendant either prevented the person from engaging in a business or drove the person out of business.[17] Injury to business reputation is also a compensable injury under §1964(c).[18] And the Second Circuit has held that legal fees proximately caused by a RICO violation are compensable RICO damages.[19] Likewise, the district court in Lemelson v. Wang Laboratories, Inc. observed that “persuasive authority holds that were legal fees are expended as an intended consequence of the defendant’s racketeering activities; these fees may constitute RICO damages.”[20]
Recovery for nonproprietary injury, unavailable under RICO, may be available under other federal claims joined with a civil RICO claim.[21]
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§1.1.7 The Question of Economic Motive
Civil RICO does not require allegation or proof that the defendants, the enterprise, or the pattern of racketeering activity had an economic motive or aspect.[22] In an opinion written by Chief Justice Rehnquist,[23] the Court refused to read an economic motive requirement into the statute because Congress had not required such a motive in the operative language of §1962(c) or in the definition of an enterprise in §1961(4). Virulent motive or other agenda causing injury suffice.
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§1.1.8 Proximate Causation
In Sedima, writing for the majority, Justice Byron R. White stated that "any recoverable damages occurring by reason of a violation of §1962 will flow from the commission of the predicate acts." Id. at 497. Section 1964(c)’s "by reason off" language requires proof that the violation caused the plaintiff's proprietary injury. Proximate cause requires "some reasonable connection between the action or omission of the defendant and the damage which the plaintiff has suffered."
An injury or damage is proximately causing by an act whenever it appear from the evidence in the case that the act played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence of the act.[24]
A civil RICO claim need allege only that a plaintiff's proprietary injury was proximately caused by at least one predicate act. In Illinois brick Co. v. Illinois,[25] the court said that "the directly injured party should receive a complete recovery, no matter what." Id. at 1176.
Proximate cause may be established circumstantially even in the face of direct denial by defendants. “[W]here motive and intent play leading roles, the proof is largely in the hands of the alleged conspirators, and hostile witnesses thicken the plot.”[26]
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§1.1.9 The Standard of Proof
In 1983 the Supreme Court, in Herman & MacLean v. Huddleston, stated that proof of a RICO claim only requires the preponderance standard "generally applicable in civil actions." In Sedima,S.P.R.L. v. Imrex Co.,[27] Justice Byron R. White, writing for the majority, stated that "conduct that can be punished as criminal only upon proof beyond a reasonable doubt will support civil sanctions under a predominance standard....There is no indication that Congress sought to depart from this general principle" when it enacted civil RICO. Id. at 479 (citations omitted).
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§1.1.10 Concealment, Spoliation and Fraudulent Intent
“Commit a crime and the world is made of glass. There is no such thing as concealment.”
-- Ralph Waldo Emerson
Due diligence means little in the context of a “black box” (perhaps the military term “black ops” is a better fit) operation designed to keep its victims in the dark as much as possible. Our attempts at discovery are stonewalled and thwarted. Requested documents are never forthcoming. Financial accountings prescribed by state law are intentionally denied us. The roles of conspirators are kept secret. Requests of the probate court to adhere to the law and its own orders on our behalf are completely ignored. Documents are suppressed, stolen, and presumed destroyed. Hearings are held without notice to us and orders issued which we learn about only months, even years later. Everything possible is done to keep us in the dark, off guard, and unable to defend ourselves. In sum, a conspiracy of concealment has accompanied every facet of the campaign of fraud, subterfuge and corruption targeted against us by these defendants.
As part of an overall pattern of concealment, spoliation of evidence has been a Herculean problem for us. In Sullivan v. General Motors Corp.[28] the court stated that at common law "it was proper to presume that evidence which had been destroyed, or ‘spoliated,’ could be construed against the party responsible for the destruction of that evidence." Similarly, in Warner Barnes & Co. v. Kokosai Kisen Kabushiki Kaisha,[29] the court held that "[w]hen a party is once found to be fabricating, or suppressing, documents, the natural indeed, the inevitable, conclusion is that he has something to conceal, and is conscious of guilt." John H. Wigmore, in Evidence in Trials at Common Law §278, at 133 (Chadbourne rev. ed. 1979) states: “It has always been understood...that a party's falsehood or other fraud in the preparation and presentation of his cause, his fabrication or suppression of evidence by bribery or spoliation...is receivable against him as an indication of his consciousness that his case is a weak or unfounded one." More then 280 years ago, in Armory v. Delamirie,[30] an English court said, "All things are presumed against a spoliator." Contra spoliatorem omnia praesumuntur remains a fundamental maxim of law. One of the clearest statements of the issue comes from Justice Francis E. Sweeney:
In order for our legal system to work…a litigant must have the ability to investigate and uncover evidence after filing suit. The intentional concealment or destruction of evidence not only violates the spirit of liberal discovery but also reveals a shocking disregard for orderly judicial proceedings and traditional notions of fair play. Damage is caused not only to the parties to the suit, but also to the judicial system and the public’s confidence to that system…. [It] harms the sanctity of the judicial system and makes a mockery of the search for truth.[31]
In cases of intentional spoliation, all the sanctions available under Rule 37 of the Federal Rules of Civil Procedure are applicable. Several district courts have imposed the sanctions pursuant to their inherent authority -- e.g. Carlucci v. Piper Aircraft Corp., 775 F2d 1440, 1447 (11th Cir 1985).[32] Two factors are of importance in addressing sanctions for spoliation: “(1) the culpability of the offender, or the alleged mental state which gave rise to the destruction of evidence, and (2) the degree of prejudice or harm which resulted from the actions of the offender."[33] The rationales for adverse inference are:
An adverse inference charge serves the dual purposes of remediation and punishment. First, it seeks to put the non-spoliator in a position similar to where it would have been but for the destruction of evidence. Second, it carries a punitive effect; "’the law, in hatred of the spoiler, baffles the destroyer, and thwarts his iniquitous purpose, by indulging a presumption which supplies the lost proof, and this defeats the wrongdoer by the very means he had so confidentially employed to perpetrate the wrong.’" [34]
The extent of spoliation and harm done to us will be addressed in the appropriate portions of this pleading.
In light of the foregoing, it will be apparent that compliance with FRCP Rule 9(b) re pleading fraud with particularity presents some problems. While I shall comply insofar as able, given the knowledge at my disposal, greater detail must await the results of discovery. Enough can be said to demonstrate the scheme to defraud, but many of the particularities of that scheme remain concealed from me. Consequently, I must invoke FRCP 11(b)(3) which allows me to plead allegations which are “likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.”[35]
Intent to deceive and defraud has permeated every facet of the many litigations and actions against us since June 14, 1999. This pleading presents substantial evidence in support of such allegations. Fraudulent intent, however, can be inferred from circumstantial evidence.[36] For example, federal courts have held that an intent to defraud can be inferred from attempts to conceal activity, including attempts to conceal material facts.[37] Likewise, a defendant's knowledge of a false statement can demonstrate an intent to defraud.[38] Fraudulent intent can be inferred from misrepresentations made by a defendant.[39] "[U]nder the mail fraud statute, it is just as unlawful to speak ‘half-truths’ or to omit to state facts necessary to make the statements made, in light of the circumstances, not misleading."[40] Some courts have held that fraudulent intent may be inferred from a failure to disclose material facts, even in the absence of a clear legal duty to disclose, as long as disclosure would normally be expected by the community.[41] In addition, the Fifth Circuit has upheld a mail fraud conviction notwithstanding the absence of a state law duty to disclose allegedly undisclosed facts.[42] Similarly, the Eleventh Circuit has held that a duty to disclose may exist even in the absence of a state law duty, and has ruled that the issue is ultimately an issue of federal law.[43] Finally, a failure to investigate allegations of fraud is probative as a defendant's fraudulent intent.[44]
These principles of law hold with regard to all forms of fraud, including fraud against the court, perjured testimony, falsified documents, and violations of the mail and wire fraud statutes.
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§1.1.11 Association with an Enterprise and Its Affairs
Section 1962(c) makes it unlawful for any person employed by or associated with an enterprise to conduct the affairs of the enterprise through a pattern of racketeering activity. This enterprise/person distinction is an essential requirement of §1962(c). Statutory language clearly envisions a relationship between a "person" and an "enterprise" as an element of the offense. Only a person employed by or associated with an enterprise, not the enterprise itself, may violate §1962(c). "The enterprise is mentioned in this section only as the instrument of the person doing the racketeering, and there is no suggestion that the enterprise also may be liable...."[45] Only a person can be held liable for the commission of predicate acts. According to RICO's legislative history, the primary purpose of RICO is to cope with the infiltration of legitimate businesses. Therefore, "it is logical that Congress would have designed section 1962(c) so that it reaches the criminal but protected the victimized enterprise from liability."[46]
In this pleading, there are three distinct enterprises at issue: (1) the RICO enterprise -- an association-in-fact consisting of the defendants in this action; (2) the Frieda Eversole estate-conservatorship – a victim of the RICO enterprise; and (3) The Creative Age, my art publishing enterprise which was illegally seized and driven out of business by RICO defendants. It is imperative that a distinction between Enterprise No.1 and Enterprise No. 2 be maintained. The “RICO enterprise” is comprised of RICO “persons” whereas the “Eversole estate-conservatorship” is a “legitimate enterprise”, the “affairs” of which have been “conduct[ed] or participate[d]” in, “directly or indirectly” by RICO persons by way of predicate acts. Enterprise No. 3, The Creative Age, was destroyed, I believe, for purely vindictive purposes by RICO defendants because of my protection of my mother, Frieda Eversole, and my non-acquiescence in the crimes against us.
A person is said to be “employed by” an enterprise when income is received by way of wages, remuneration for services rendered, or even as a consequence of illicit bribes or kickbacks. Section 1962(c)'s association prong has a broader reach and "draws no distinction between the foot soldier and the general."[47] Consequently, anyone with a stake or interest in the enterprise's goals or who assists it in any manner, “directly or indirectly,” is said to be “associated” with the enterprise. One court of appeals has said one can be “associated” merely “by conducting business with it, even if in doing so the defendant is subverting the enterprise's goals."[48]
Courts have taken a broad view of the term "affairs." In United States v. Scotto, the court held that a person conducts an enterprise's affairs through a pattern of racketeering activity (1) when the person "is enabled to commit the predicate offences solely by virtue of his position in the enterprise or involvement in or control over the affairs of the enterprise," or (2) when "the predicate offences are related to the activities of that enterprise."[49]
Where some relationship exists between the predicate acts and the enterprise's affairs, Congress left for case-by-case determination the question whether the relationship is sufficient:
[Section 1962(c)] does not.. distinguish[ ] between predicate acts which play a major or a minor role, or any role at all, in what might be seen as the usual operations of the enterprise; nor does it require that such acts be in furtherance of the enterprise....The perversion of legitimate business may take many forms.... No good reason suggests itself as to why Congress should want to cover some, but not all of these forms....[Section 1962(c)] plainly says that it places criminal responsibility on both those who conduct and those who participate, directly or indirectly, in the conduct of the affairs of the enterprise, without regard to what the enterprise was or was not about at the time in question." [50]
Plaintiff satisfies this element by alleging that the predicate acts had "minimal" connection with the enterprise's affairs. United States v. Elliott is often cited:
[Section 1962(c)] applies to insiders and outsiders -- those merely "associated with" an enterprise -- who participate directly and indirectly in the enterprise's affairs through a pattern of racketeering activity....The RICO net is woven tightly to trap even the smallest fish, those peripherally involved with the enterprise.[51]
This minimal connection has been characterized by the Eleventh Circuit as "the performance of activities necessary or helpful to the operation of the enterprise."[52]
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§1.1.12 The Predicate Acts
Section 1961(5) states that a pattern of racketeering activity
requires at least two acts of racketeering activity, one of which occurred after [October 15, 1970] and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity.[53]
A pattern of racketeering activity may consist of multiple acts in violation of a single statute or provision or of acts in violation of more than one enumerated statute or provision. Predicate acts, like other elements of the civil RICO claim, need only be proved by the preponderance of evidence standard.
A) The Hobbs Act
Among the predicate acts enumerated in §1961(1)(B) as indictable acts is the Hobbs Act. Violations of the Act provide useful RICO precedents where the defendant's own conduct smacks of threats or violence causing injury to the plaintiff's business or property. In relevant part, the Act provides:
(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more then $10,000 or imprisoned not more than twenty years, or both
(b) As used in this section –
(1) The term "robbery" means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.
(2) The term "extortion" means the obtaining of property from another, with his consent, introduced by wrongful use of actual or threatened force, violence, or fear, or under color of official right....[54]
Because the Hobbs Act falls under the commerce clause, any obtaining of tangible or intangible property by wrongful use of actual or threatened force, violence, or fear, which obstructs, delays, or affects commerce (or would have this consequence if achieved), is given "an expensive construction."[55] The Act's commerce nexus requires a showing of only "minimal" obstruction, delay, or effect.[56] The Act also punishes attempts and conspiracies to violate the Act.[57] And the Hobbs Act operates against force or fear not only of physical harm but also of economic harm. To prove fear of economic harm, the plaintiff must establish that the victim reasonably believed that the defendant had the power to harm the victim, and that the defendant would exploit that power to the victim's detriment.[58]
B) Mail and Wire Fraud
The predicate act of mail fraud, §1341, in relevant part, states:
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises,...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, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.
The wire fraud statute, §1343, states:
Whoever, having devised or intended to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined not more than $1,000 or imprisoned not more than five years, or both.
The use of the United States mails is an essential element of the predicate act of mail fraud. Each separate use of the mails in furtherance of a scheme or plan to defraud constitutes a separate predicate act.
The essential elements of mail or wire fraud violations are: (1) formation of a scheme or artifice to defraud; and (2) using or causing use of the United States mails or interstate wire facilities (3) in furtherance of a scheme to defraud.[59] Other than the interstate requirement for wire fraud, the elements of the mail and wire fraud statutes are essentially the same.
The scheme to defraud element of a mail or wire fraud violation is exceptionally broad and has been held to encompass notions of "fundamental honesty, fair play, and right dealing in the general and business life of members of society."[60] Thus, a scheme can be established even without a misrepresentation of fact. Moreover, the scheme need not be successful in order to qualify as a scheme to defraud.
The Supreme Court has held that materiality is an essential element of a mail or wire fraud claim based upon a false statement. Courts have nonetheless avoided providing a precise definition for what constitutes a scheme to defraud; the "law does not define fraud; it needs no definition; it is as old as falsehood and as versatile as human ingenuity."[61] In 1896, the Supreme Court stated that the term "scheme or artifice to defraud" in the mail fraud statute is not limited to the common law definition of fraud.[62] Thus, "a RICO claim based upon the predicate acts of mail or wire fraud does not require an allegation of a misrepresentation or common law fraud."[63] The Tenth Circuit added: “A scheme to defraud focuses on the intended end result and affirmative misrepresentations are not essential...."[64]
Prior to 1987, federal courts had uniformly interpreted the statutory language of the mail fraud statute which proscribes devising or intending to devise "any scheme or artifice to defraud, or obtaining money or property by means of false or fraudulent pretenses"[65] as setting forth alternate ways of violating the statute -- either by defrauding someone or by devising a scheme to obtain money or property fraudulently. In 1988, Congress expanded the definition to include "a scheme or artifice to deprive another of the intangible right of honest services."[66] Overbilling for legal services would be a case in point.[67]
The use element of the mail fraud statute has been broadly construed as requiring proof only that a defendant should have reasonably contemplated the use of the mails; he need not have personally used the mail so long as it was used by others. Lastly, intent is also an element of a mail or wire fraud claim. The scheme to defraud must have been intended or reasonably calculated to deceive persons of ordinary intelligence.[68] While intent is a necessary element in establishing fraud, plaintiff does not need to demonstrate reliance upon an alleged fraudulent mailing in order to establish injury "by reason off" predicate acts. In United States v. Goldberg,[69] the court said, "Plaintiffs need not rely on predicate acts of mail or wire fraud."
[Back to top]§1.1.13 The Interstate Commerce Component
Filing a §1962(c) claim requires that an enterprise be engaged in, or its activities affect, interstate or foreign commerce. A de minimis affect is all that is required. The burden of proof is easily satisfied because it is the enterprise which must affect commerce rather than the racketeering activity.[70] As a matter of practical economics, purchasing equipment, books or supplies across state lines; using interstate services; involvement in litigations which cross state lines, consulting with paid professionals in another state; managing investment portfolios consisting of interstate or international funds; traveling across state lines for business purposes – and the list could go on: any of these meet RICO’s requirement of a de minimis affect upon interstate or foreign commerce. All such activity falls under the Constitution’s commerce clause and thereby federalizes the RICO enterprise.
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§1.1.14 Vicarious Liability
Hand Arendall is pled as a RICO “person” based on involvements of several of its attorneys and quite a few other firm employees in the alleged conspiracy and predicate acts. However, in the alternative, and to cover all options, I also plead vicarious liability. The precise contours of Hand Arendall’s role may only be known through discovery. As for vicarious liability, most courts hold that when a corporation or employer is distinct from the RICO enterprise and has benefited from its employee's or agent's violations of §1962(c), vicarious liability is appropriate. It helps compensate the victims of the racketeering and encourage employers to monitor more closely the activities of their employees and agents to ensure non-involved in criminal activity. In Davis v. Mutual Life Ins. Co. of N.Y.,[71] the court held that a contrary rule would prevent corporations ever being found liable under RICO since corporations act through their agents. The rule was applied to a law partnership in Thomas v. Ross & Hardies,[72] where the court held the partnership liable for an attorney’s misconduct from which the firm had benefited. Likewise, in Crowe v. Smith,[73] a law firm, not alleged as a RICO enterprise, and which derived benefits from a representative's wrongful acts, was held vicariously liable under §1962(c). The Eleventh Circuit, the only one not to follow the non-identity rule, sees no reason to limit vicarious liability under RICO when representatives[74] commit illegal acts within the scope of their employment, in the furtherance of business, and with acquiescence of the authorities. As a long-standing attorney with Hand Arendall, James Tingle (“the county conservator”) has exploited the assets of the elderly under his control for decades with the full knowledge and aid of his law partners. Whether as a RICO “person” or under vicarious liability, Hand Arendall has aided and abetted Tingle’s predicate acts in violation of §1962(c).[75]
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§1.1.15 Treble Damages
When an injured plaintiff proves a compensable civil RICO violation, the court must award an amount equal to triple the damages suffered by reason of the violation.[76] Because §1964(c) provides that the injured plaintiff "shall recover threefold the damages he sustains," RICO leaves no room for judicial discretion toward some lesser amount. The Seventh Circuit has held that the court should properly exclude from jury instructions reference to the fact that civil RICO mandates trebling the actual damages.[77]
While punitive damages are not available under civil RICO, were other federal claims are joined to a civil RICO claim, and were otherwise permissible, punitive award damages remain available on all not-RICO claim. See FRCP 8(a)(3): "relief in the alternative or of several different types may be demanded."
Where the plaintiff establishes a civil RICO violation and recovers treble damages, §1964(c) makes an award of costs mandatory. The plaintiff “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) (1988).
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§1.1.16 RICO’s Statute of Limitations and Tolling
In Agency Holding Corp. v. Malley-Duff & Associates, Inc., the Supreme Court adopted a four-year statute of limitations for all civil RICO claims. A civil RICO claim is timely provided at least one predicate act occurred within the four-year limitation period. The Third Circuit adopted a patterned discovery accrual rule in Keystone Ins. Co. v. Houghton which provided that "a civil RICO claim runs from the date the plaintiff knew or should have known that the elements of the civil RICO cause of action existed."[78] A predicate act may be considered in that pattern's establishment even when the suit alleging the act would have been time-barred in RICO's absence. In McCool v. Strata Oil Co. the Seventh Circuit declined to follow the patterned discovery rule, but noted:
There must, of course, be a pattern of racketeering activity before the plaintiff's RICO claim accrues, and this requirement might delay accrual until after the plaintiff discovers her injury. Further, although we need not decide the question here, equitable tolling may well delayed the running of the RICO limitations period while a victim diligently investigates the possible existence and extent of a pattern of racketeering.[79]
When the accrual question arises in a fraud-based civil RICO action, the equitable tolling doctrine may require attention. In Holmberg v, Armbricht, 327 US 392 (1946), the court said
where a plaintiff has been injured by fraud and "remains in ignorance of it without any fault or won't of diligence or care on his part, the bar of the statute does not begin to run until the fraud is discovered, though there being no special circumstances or efforts on the part of the party committing the fraud to conceal it from the knowledge of the other party." Id. at 397.
In order to avoid the tolling issue, I’ve endeavored to file this action within the four-year RICO statute of limitation; my choice of accrual date is discussed in detail below under RICO allegations §1.2.5.1. However, in the event the tolling issue should arise, two relevant issues protective of our rights are worth noting.
Where a defendant has engaged in deceptive conduct to conceal fraud, an act that "may be as simple as a single lie,"[80] the defendant "must show something closer to actual notice [rather] than the merest inquiry notice that would be sufficient to set the statute of limitations running in a situation untainted by fraudulent concealment."[81] Moreover, where a conspiracy is alleged, the "affirmative acts of concealment by one or more of the conspirators can be imputed to their co-conspirators for purposes of tolling the statute of limitations," for both conspiracy and substantive offenses.[82]
Courts will estop a defendant from asserting a limitations defense if the defendant stood in a fiduciary relationship to the plaintiff at the time of the alleged misconduct.[83] The general principle behind treating those who owe a fiduciary duty differently is that "where there is a fiduciary duty to disclose information on a particular matter, failure to do so will constitute fraud or fraudulent concealment that tolls the statute of limitations on any claim as to notice of which that information is material."[84] Thus, in those jurisdictions, when a defendant has a fiduciary duty to disclose, passive concealment alone will toll the statute of limitations.[85]
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§1.1.17 Survival of RICO Claims
FRCP 25(a) provides that "[i]f a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties." While the United States Code contains no general survival statute, courts have held that a civil RICO claim survives the death of either party. In Republic Pension Services, Inc. v. Finger,[86] a federal magistrate held that a successful civil RICO plaintiff may recover treble damages, cost, and a reasonable attorney’s fees from the defendant's estate. The magistrate based his opinion upon federal common law which holds that actions concerning property rights survive a party's death.[87] In Faircloth v. Jackie Fine Arts, Inc.,[88] the court held that civil RICO claims survive the death of plaintiff or defendant – a view consistent with RICO’s liberal construction clause and the view that RICO claims are remedial.[89]
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§1.1.18 Right to Jury Trial
Though civil RICO is silent on the question of jury trials, Congress adopted civil RICO virtually whole cloth from the antitrust language of §4 of the Clayton Act. Since Justice Holmes' 1916 opinion in Fleitmann v. Welsbach Street Lighting Co.,[90] antitrust statutes have been construed as providing a right to jury trial. Hence, it may be argued that Congress implicitly endorsed a jury trial right by patterning §1964(c) after the language of the antitrust laws.[91] Resolution of the issue resides with interpretation of the Seventh Amendment. The constitutional issue is whether the Seventh Amendment’s guarantee of a jury trial "[i]n suits at common law, where the value in controversy exceeds twenty dollars" applies to civil RICO claims. In Curtis v. Loether,[92] the Supreme Court held that the Seventh Amendment guarantees the right of jury trial for statutory actions "if the statute creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of law." Id. at 194. A civil RICO suit can be characterized as analogous to a claim sounding in tort. In NSC Int'l Corp. v. Ryan,[93] the district court held that the closest analogy to a civil RICO claim is an action in tort, and more specifically the tort of interference with economic relations recognized at common law. Perhaps and even closer analogy is to the tort of fraud or deception. Such tort claims are within the province of the common law and hence are subject to a jury trial right. Applying the Loether standard to the Seventh Amendment guarantee of a jury trial and these to civil RICO claims suggests that a jury trial is constitutionally secured. Given that the majority of defendants in this case are attorneys or judges and given our pro se status, we believe a jury trial is our best hope of full compensation for our economic losses and, therefore, are requesting a jury trial. Moreover, the citizens of Jefferson County have been too long victimized by a number of defendants in this case and should have a voice in assessing their guilt or innocence.
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§1.2 Pleading the Allegations
Having set forth the requirements of a civil RICO claim, the allegations upon which this claim is based will now be pled.
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§1.2.1 Prolog to a Pattern of Elderly Exploitation
The “general rule that executors, administrators, guardians, trustees, and functionaries of that general character may not traffic to their own private advantage in estates or properties toward which they have any official or moral responsibility is as much a principle of ethics and practical honesty as it is of law.”
-- In re. Ingham’s Estate[94]
“Many forms of conduct permissible in a workaday world for those acting at arm’s length are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior.”
-- Chief Justice Cardozo, Meinhard v. Salmon[95]
On November 1, 1999, Judge George R. Reynolds of the Probate Court of Jefferson County, Alabama, declared my mother, Frieda Eversole, an “incapacitated person” and seized control of all her financial assets.
The action at hand is not about the appointment of a guardian and conservator by the probate court [96]but about the fraud, collusion, and violations of our legal and constitutional rights leading up to and following from that court action. And it is about courts serving as agents and instruments of cruelty and economic exploitation of the elderly, especially women. The claim of “incompetency” is to the abuse of the elderly what the claim of “racial inferiority” was to Jewish internment in Nazi Germany– a rationale for intolerable cruelty and economic exploitation. Death is all too often an outcome. Several victims’ families have personally told me their tragic stories of an exploited loved one’s cruel and premature death. I am always repulsed by needless cruelty in any form!
Here is what a few others also have to say:
"One startling conclusion about the whole process of incompetency was drawn from the realization that in almost every case examined the aged incompetent was in a worse position after he was adjudicated incompetent than before. The study could identify no particular benefit which flowed to the incompetent that he could not have received without a finding of incompetency."
-- G. Alexander & T. Lewin, The Aged and the Need for Surrogate
Management, Syracuse University Press, Syracuse, N.Y., 1972, p. 136
"[F]inancial exploitation is one of the most permanently devastating and overlooked forms of elder abuse..."
-- A. Paul Blunt, Financial Exploitation of the Incapacitated: Investigation
and Remedies, 5 Journal of Elder Abuse and Neglect 19 (1993)
“We know by now that protection can become a protection racket.”
-- Judith A. Bear, Equality Under the Constitution
"Outside of execution, guardianship is the most radical remedy we have."
-- Elias Cohen, Philadelphia attorney and gerontologist
And from the web site of Guardian Watch:
America's elderly and incapacitated people are being robbed of their money, their property and most of all their FREEDOM by unscrupulous lawyers, strangers, and even family members. Many guardianship judges are corrupt, deliberately ignoring the abuse and permitting it to continue. Are they being paid 'under the table' with the property belonging to the incapacitated or elderly person? ...Strangers (usually lawyer buddies) are being appointed as guardians/ conservators of our loved ones instead of qualified family members. There is a clear bias against family members by many of the judges in the guardianship courts....Until now, these incidents were virtually kept a secret.
The actions of unscrupulous lawyers, judges, guardians, and other individuals involved in the financial exploitation, abuse, neglect, and violations of the rights of elderly and incapacitated people are criminal. They are acting under the color of law and are hiding behind what they perceive as a shield of protection for their illegal actions, when in reality, their perceived 'shield' is no protection to them at all.
These individuals are no different from the Wizard in the Wizard of Oz, who, when the curtain he was hiding behind was pulled back the snake oil peddler was exposed for what he really was -- a fraud. It's time to pull away the curtain in every community across the United States and expose the unscrupulous lawyers and judges in many of our guardianship courts for what they really are -- frauds and criminals.
There is absolutely no justification for any elderly or incapacitated person under the jurisdiction of a court of law, where a guardian has been appointed by a judge, to suffer any harm, have their rights violated, or be financially exploited, abused, or neglected. There is zero tolerance for such acts.
States must be held accountable for the actions of their judges and lawyers, who are officers of the court. Lawsuits must be filed against the states, against the individual judges, and against all involved in the financial exploitation, abuse, or neglect of our incapacitated and elderly loved ones.
“Of all tyrannies a tyranny exercised for the good of its victims may be the most oppressive….those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.’
-- C. S. Lewis
In Alabama, the courts can declare a person "incapacitated" without any medical testing or verification, as the probate court did with my mother.[97] By contrast, in Massachusetts, two qualified physicians in the field of dementia must both examine and jointly signed off on "a declaration of incompetency" before a court can make such a determination. There are no such safeguards in this state to protect the elderly. The result is heartless economic exploitation and worse. We know firsthand. When joined with certain other aberrations of the Alabama judicial system, all the necessary ingredients for abuse are present, including corruptibility. In my ideal scenario, a case of such as this would be investigated of the FBI and prosecuted by the U.S. Department of Justice. Since that is unlikely, I, an outraged son, am doing what I can.
Black’s Law Dictionary defines “incapacitated person” as follows: “A person who is impaired by an intoxicant, by mental illness or deficiency, or by physical illness or disability to the extent that personal decision-making is impossible.”[98]
My mother is now 93 years old. Yet at no time has she ever exhibited mental or emotional impairment that would have made “personal decision-making… impossible.” See Exhibit D.[99] Judge’s Reynolds’ actions were part of an elaborate scam with a lengthy history by which the elderly in Jefferson County have been victimized and deprived of their assets and life’s savings – all for the benefit of judges and self-enrichment attorneys. This case is a perfect example. Nor are such charges unique to Jefferson County.[100]
The elderly are easy prey, especially women and widows who’ve suffered the loss of their life’s partner. It is my profound hope that this case will go some way toward rectifying such wrongs and extending constitutional protections to the rights of the elderly.
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§1.2.2 The Association-in-Fact Enterprise
For purposes of §1962(c), an “enterprise” is defined in Sutton as
‘any individual, partnership, corporation, association…and any union or group of individuals associated in fact,’ that is organized and acting for some ostensibly lawful purpose, either formally declared or informally recognized. Section 1962(c) is violated whenever any person associated with such an enterprise conducts its ‘affairs,’ i.e., undertakes any activity on behalf of or relating to the purposes of the enterprise, by committing at least two criminal acts constituting a ‘pattern of racketeering’ as defined in section 1961(5).[101]
We hereby allege the existence of a RICO Association-in-Fact Enterprise consisting of all defendants in this litigation, each of which is defined for purposes of this pleading and action as “a RICO person.” The “association” formed by such “persons” is the alleged RICO “enterprise.”
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§1.2.2.1 The Composition and Conduct of the Enterprise
Each defendant to this action has conspired in some manner and played some part which was or is vital to the success of the RICO enterprise. The nature of the relationships between the defendants is complex, involving in some instances family relationships or longtime friendships; in others, relationships of questionable legitimacy from a legal point of view; and in all, serious conflicts if interest sounding in conspiracy for purposes of fraud.
The first set of relationships involves Kenneth E. Traweek, Helen Traweek, Joyce Burbank and Daniel Hull. Ken Traweek and Helen Traweek are husband and wife, and Joyce Burbank is Ken’s sister. Daniel Hull is an attorney who drafted one or more legal documents on behalf of my late father and my mother. Ken and Helen were asked by my father to serve as go-betweens for him with Hull due to dad’s declining health. Following his death on May 18, 1999, it was discovered that Ken and Helen had made themselves and Ken’s sister, Joyce, the beneficiaries of seventy-five percent of my parents’ Trust Fund. According to my father and mother, everything they had was to be available for my mother’s needs as long as she lived. Thereafter, whatever remained was willed to me. However, that is not the issue under consideration here.
The last half-dozen years of my father’s life, his primary concern was my mother's welfare after his passing. Ken and Helen knew this. Nevertheless, within days of my father's death, they set about destroying everything dad had done to insure her wellbeing. He would have been livid had he known! When Ken and Helen filed suit in the Probate Court of Jefferson County to have mother declared incapacitated, Hull rushed to their aid with fabricated claims.
The second group of relationships concern Ken Traweek, James M. Tingle, and Douglas McWhorter. From the first, McWhorter represented Ken and Helen in all their legal actions against us. At the time, McWhorter was an attorney with the law firm Najjar Denaburg which had handled legal matters for Ken for years. Whether McWhorter handled any of Ken's cases, I do not know. However, it is a reasonable assumption that they knew each other. McWhorter's representation of Ken and Helen consequently was no surprise.
When Ken filed his emergency petition to have mother declared incapacitated and a court-appointed guardian and conservator appointed for her, he requested that James Tingle be appointed to the roles. As we would learn much later, Ken Traweek and James Tingle had been friends since 1963. In what appeared as a conflict of interest, McWhorter also represented Tingle, who would eventually be appointed conservator for my mother, Frieda Eversole. However, three-and-eight-half years would go by before I learned that McWhorter was Tingle's attorney from the outset and that his representation of Ken and Helen Traweek would be paid for by Tingle with monies from my mother's estate. McWhorter represented Ken Traweek in his initial emergency petition to the probate court on June 14, 1999. Yet Tingle would not be appointed conservator over mother's estate until November 1, 1999. Therefore, three-and-a-half months prior to his conservatorship appointment, Tingle was providing the legal services for Ken Traweek that would lead to that appointment! In spite of these obvious conflicts of interest, the relationships between Tingle, McWhorter and the Traweeks was kept secret both from us and my attorney, Bob Kracke.
Joyce Burbank provided McWhorter with confidential papers and made fraudulent statements which, by law, should have been inadmissible, yet were used and caused us much harm.
Another set of relationships presenting conflicts of interest were those between Tingle (a.k.a. "the county conservator") and probate court Judge Reynolds, and later Judge Bolin. Also unknown to us was the fact that Tingle had contributed $5,000 to the elections of Judges Reynolds and Bolin. Alabama is the only state to allow such exorbitant campaign contributions for the election of a judge, most other states having a $1,000 cap, and many of these require a judge to recuse him/herself if an attorney for either party before his/her court has made a contribution of that size.
After our appeal to the Alabama Supreme Court of Tingle's appointment as conservator was denied, Kracke said to me, "It is well-known that whenever an estate with money in it comes before the probate court, Judge Reynolds gives the conservatorship to ‘Buddy’ Tingle regardless of the family circumstances. That's how he pays his political debts." If true (and there are three decades of appointments of Tingle over moneyed estates of the elderly to suggest that it is), then we have a clear case of quid pro quo.
Hand Arendall is named as a "RICO person" in this association-and-fact enterprise because of Tingle's lengthy partnership in that firm and because other attorneys, associates, paralegals, and staff with Hand Arendall have undertaken legal representation or engaged in illegal acts on Tingle’s behalf in his dealings with us.[102]
The Probate Court of Jefferson County, Alabama is also named as a "RICO person" for its various administrative roles and acts of a detrimental nature which were ethically questionable and/or ignored the law.
Judge Rogers is named for resorting to mail fraud and denial of due process as his part in aiding a successful scheme by Tingle to defraud me of approximately $14,574.
“Oh, what a tangled web we weave,
When first we practice to deceive!”[103]
The predicate and other acts engaged in by defendants in furtherance of their scheme to defraud Frieda Eversole and Finley Eversole in violation of RICO’s provisions are detailed in appropriate sections of this pleading.
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§1.2.2.2 Association with the Enterprise
Each of the persons or entities associated with the RICO enterprise stood to benefit financially in some manner, either directly or indirectly, by his or her actions. If successful in their efforts to deny Frieda Eversole or her son, Finley, access to or use of her investments in her Annuity and Trust funds for her care, Ken Traweek, Helen Traweek, and Joyce Burbank stood to inherit seventy-five percent of everything remaining – seventy-five percent of everything my parents managed to acquire in the course of their long marriage. By denying Frieda use of these monies for living expenses, healthcare, prescriptions, travel or other forms of enjoyment during the remaining years of her life, there would be more for the Traweeks to “inherit.” Therefore, having mother declared “incapacitated” and control of her assets placed under the control of Ken’s longtime friend, James Tingle, the alleged “county conservator,” would assure that her access to her assets would be virtually nil. And this has proved to be the case.
As for the court-appointed attorneys, James Tingle and Donald Colee, and Tingle’s attorney, Doug McWhorter, merely by fabricating one issue after another to be litigated (by my calculations, there have been over sixty legal actions of one kind or another!), they could pile up massive “legal fees” against Frieda’s estate, and have. When Judge Bolin awarded their fee requests in June, 2003, Tingle and McWhorter were each awarded more than the totality of all the monies Tingle and the probate court had allowed mother from her own estate for her needs and care during the first forty-four months of Tingle’s conservatorship! Do I really need to state for whose benefit this conservatorship was established?
If Kracke’s statements that the probate judges use the estates of the elderly to “pay their political debts,” and I’ve encountered nothing to date to the contrary, then Judges Reynolds and Bolin obviously “benefit” from biased decisions, ignoring family rights, declaring persons “incapacitated” who clearly are not, and denying the elderly access to their own assets. Likewise, the Probate Court of Jefferson County benefits from court fees, transcription costs and other related “expenses” charged against these estates.
Hand Arendall benefits by the income generated for the firm by Tingle’s control of the estates under his conservatorship, and by the use of many of the firm’s other personnel -- attorneys, associates, paralegals, et al. – for the various litigations and actions initiated by Tingle against the estates and families.
All in all, everyone associated with this RICO enterprise -- viz., all who’ve had a voice or hand in seizing and controlling the estate of Frieda Eversole – gains financially and/or politically. Were an economic motive required, there it is.
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§1.2.2.3 The Ongoing Organization
Our experience with the Probate Court of Jefferson County and James Tingle and associates dates from June 14, 1999 and is ongoing with no end in sight. From what I’ve been told by many sources – attorneys, the Birmingham Social Security office, clergymen, healthcare workers, Birmingham police, and other victimized families – Tingle’s exploitation of the elderly with the aid of the probate court and probate judges extends back some three decades. An elderly member of the family of a dear friend is one of Bolin’s and Tingle’s latest victims. Only when some authority higher than what I’ve encountered in Alabama’s state agencies elects to do something about the economic exploitation and abuse of the elderly in Jefferson County will it be safe for any person over sixty to reside in this state! We tried escaping to Tennessee only to be forced back to Alabama against our will.
The “ascertainable structure” [104] of this association-in-fact enterprise is derived from its utilization of the legal and judicial system and pseudo-conservatorships as vehicles for gaining control of and exploiting the estates and assets of the elderly. Inasmuch as the legal and judicial system provide structure, are ongoing, and serve as vehicles through which lawlessness and greed are allowed to operate, no external controls exist for applying the brakes – unless it be those found in the federal courts and constitutional law. I’ve yet to meet any non-attorney in Alabama who has an iota of respect for this probate court! Such is its reputation for exploitation. When is enough enough? When will we see a restoration of integrity to the courts and the law? I pose these questions not merely as a victim of this probate court’s corruption, but as an American citizen who believes the integrity of the law is the last safe refuge of every American. When that protection is gone, so is the cherished value of our citizenship. Our laws are what distinguish us from most other nations, not our might.
Is the RICO association-in-fact alleged here an ongoing enterprise? It is that and something worse. It is a case of public corruption and a curse on the elderly. It strips law of its integrity and elder law of any hint of morality. If apathy is the curse of good citizenship, tolerance of corruption is the curse of a responsible judiciary and honest government.
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§1.2.2.4 Functioning as a Unit
All of the defendants alleged here as RICO conspirators have functioned in lock-step with each other, each echoing the false words and fraudulent allegations of the others, each supplying an essential element of the scheme, each aware of the principle roles played by other defendants, all sharing the same objectives – gaining control of and exploiting the Eversole estate. All have conspired together in alleging Frieda Eversole to be “mentally incompetent” and in alleging Finley Eversole to be, in Judge Reynolds’ words, “a scoundrel.” All have collaborated in suppressing evidence and testimony and in defeating our efforts to gain access to our due process and constitutional rights. All made use of Alabama’s legal and judicial system in carrying out some part of a unified scheme. And all are interconnected through ties of family, friendship or money. Much more will be revealed in the details of this pleading, but this ought to suffice to indicate the essential unity of the scheme and functional unity of the co-conspirators.
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§1.2.2.5 Shared Objectives
One could say that this RICO scheme had but one objective: the self-enrichment of defendants at the expense of the assets of the Eversoles. Or one could break it down into the various components essential to the overall scheme: (1) gaining and maintaining control over the assets of the Eversole estate; (2) declaring Frieda Eversole mentally incompetent so as to deprive her of access to her legal and constitutional rights; (3) portraying Finley Eversole as “a bad son” and a “financial incompetent” who, if given the chance, would “squander” the assets of his mother’s estate; (4) stripping the Evers
ole up front of any financial means of securing adequate ongoing legal representation; (5) denying Frieda Eversole use of her assets for her own care and needs so as to “preserve” them for exploitation by the defendants; (6) blocking any effort by the Eversole to leave Alabama and remove their assets to another state; (7) vindictively destroying the work and livelihood of Finley Eversole for resisting the abuse and exploitation of his mother and her assets; and (8) holding over them a constant threat to “remove Mrs. Eversole from her home and son’s care” without notice should any of their actions “displease the court.” [105] I could go on, but I believe the point is made – one scheme, shared objectives, and a single goal: self-enrichment.
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§1.2.2.6 Accomplishments to Date
Regardless of all statements by defendants to the contrary, their actions have never been about “the welfare” of Frieda Eversole or “the protection” of her assets. Not only has she been made to suffer more profoundly at the hands of the probate court, judges and Tingle that from all her other life experiences taken together, but sixty percent of her financial assets have disappeared and are unaccounted for. We believe them have been embezzled or converted to “attorney fees” and “court costs.” Given Tingle’s refusal to account for them, we can draw no other conclusion. So if the court and conservatorship have failed in their stated objectives, what have they accomplished?
In just four years, they have squandered assets it took my parents half a lifetime to acquire. They have embittered my mother toward her relatives. They have denied and continue to deny mother access to needed income for healthcare and the enjoyment of her remaining years through such life-long pleasures as travel. They destroyed my business and sole source of livelihood. They halted over thirty years of work on my magnum opus, my life’s most important work. And they have betrayed our faith in the legal system, at least the Alabama legal system. Of course, their “accomplishments” also include their own substantial self-enrichment at my mother’s expense.
The only good they have done is to turn me into a warrior on behalf of the welfare and rights of the elderly, more determined than ever to see the laws, rights and principles of our nation upheld on behalf of all citizens. I myself am elderly but far from allowing the financial exploitation of the elderly to go unchallenged. This pleading is a first response.
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§1.2.3 The Defendants as Conspirators and Racketeers
Any agreement to violate the provisions of §1962 is a violation of federal racketeering laws, and both the agreement and racketeering acts are actionable.
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§1.2.3.1 Evidence of Conspiracy to Violate §1962(d)
Section 1962(d) makes it "unlawful for any person to conspired to violate any of the provisions of" §1962(a),(b) or (c). Persons suffering a proprietary injury by reason of the conspiracy may recover under §1964(c). Section 1962(d) creates an offense grounded in the conspiracy concept, a violation distinct from the substantive offenses enumerate in subsections (a)-(c). As a threshold matter, most decisions have concluded that a RICO conspiracy does not require allegation or proof of an overt act. However, standing to allege a civil RICO conspiracy normally requires evidence of a proprietary injury from an overt act. The Third Circuit has held that private RICO conspiracy plaintiffs may allege injury by reason of acts that do not constitute RICO predicate acts.[106] A RICO conspiracy allegation has three basic elements. First, allegation of the existence of an enterprise. Second, proof that a defendant agreed to participate directly or indirectly in the enterprise’s affairs. The litigant must show the defendant knew the enterprise’s essential nature and scope and intended to participate in the enterprise’s affairs; the degree of intent “must be at least equal to that required for the substantive offense itself.” And third, allegation that the defendant agreed to participate in a pattern of racketeering activity.[107] Plaintiff must allege that a defendant agreed to participate in a pattern of racketeering activity in a manner that violated §1962(c). Where a person joins an ongoing RICO conspiracy, that person is deemed to have adopted the prior acts and declarations of other co-conspirators already made or done in forming and furthering the conspiracy. Fraud-based predicate acts underlying a conspiracy claim must be pled in accordance with FRCP 9(b)’s particularity requirements – i.e., a civil RICO conspiracy claim must provide some factual basis for the allegation.
In a civil conspiracy, it is the overt act producing damage to the plaintiff that gives rise to liability. According to the Pinkerton doctrine,[108] each conspirator is vicariously liable for the acts of all co-conspirators committed in the furtherance of the conspiracy.
In United States v. Elliott,[109] a landmark in RICO jurisprudence, the Fifth Circuit held that a criminal enterprise is broader in scope than a conspiracy, and consequently a RICO conspiracy under §1962(d) is broader than a traditional conspiracy. The reason is that courts are unwilling to limit an association-in-fact enterprise to the bounds of a traditional conspiracy.
Under the statute, it is irrelevant that each defendant participated in the enterprise’s affairs through different, even unrelated crimes, so long as we may reasonably infer that each crime was intended to further the enterprise’s affairs.[110]
In United States v. Brazel,[111] and likewise in United States v. Abbell,[112] the Eleventh Circuit said, “Agreement to participate in a RICO conspiracy can be proved in one of two ways: 1) by showing an agreement on an overall objective; or, 2) by showing that a defendant agreed personally to commit two predicate acts and therefore to participate in a single objective conspiracy.” Pleading conspiracy relies upon pleading joint knowledge of predicate acts, acts which must be pled with particularity. To avoid needless repetition, see below §1.2.6.2 (The Hobbs Act) and §1.2.6.3 (Mail and Wire Fraud) for predicate acts pled with particularity.
Evidence of conspiracy is provided by the following:
1) The fact that all participants in the association-in-fact had as their common objective gaining control of the estate of Frieda Eversole and diverting some portion of its assets to themselves or their agencies, either directly or indirectly.
2) The fact that they knowingly conspired to represent Frieda Eversole as “mentally incompetent” without medical evidence to support such an allegation and in direct contradiction to Frieda’s own physicians and her son and neighbors who knew her best. Judge Reynolds ordered a seriously skewed “psychological test” of mother for which the testers received $5,610[113] paid from mother’s assets. In the courtroom, McWhorter was so abusive to mother that he reduced her to tears in less than a minute, thereafter manipulating her answers so as to make her appear confused and self-contradictory.
3) Conspiring together to make fraudulent uses of a cancelled Durable Power of Attorney given to Ken Traweek by mother in 1994. Ken used it to falsely claim that he was mother’s “legal representative” when filing an emergency petition to have her declared mentally incompetent and control of her assets taken from her. Ken and Helen Traweek, McWhorter,[114] Colee, and Judge Reynolds were all fully aware that the power of attorney was void, yet the court convenient turned a blind eye to the fraud, not only once but time and again.
4) The fact that the Traweeks, McWhorter, Tingle, Colee, and in all likelihood others, agreed together to fabricate a case designed to divest Frieda of her property and defame Finley so as to remove him from control of it, is revealed by their virtually identical statements. Like the chorus in a Greek tragedy, each witness echoed the same false statements in virtually identical words and phrases. Without a prior agreement on strategy, this “coincidence” was about as likely as David Copperfield popping in on the probate hearing. Mathematician Bertrand Russell once said, “Ten thousand monkeys typing away for ten thousand years might accidentally retype the complete works of William Shakespeare.” Anything is possible. Some things are unlikely.
5) Keeping their roles and relationships largely secret from us while also suppressing, losing or destroying evidence favorable to us at every opportunity. This shows a coordinated intent to deceive and defraud.
6) Finding ways to obstruct or deny our access to due process and our other constitutional rights, including denying mother 100% of her legal rights under Alabama law. Holding unscheduled court hearings or hearings without notice so we would not be present to respond to actions against us or fraudulent statements made about us. Several of these are detailed in the relevant sections of this pleading.
7) Committing or consenting to the commission of predicate acts in violation of §1962(c). These are detailed in §1.2.6.2 and §1.2.6.3 below.
8) Conspiring together to lock us out of our condo without access to due process and keeping us locked out after the fact, various defendants thereafter illegally entering and exhaustively searching our condo and removing all legal files and financial records needed for our defense. There was also about $5,000 in property damage and destruction.
The high degree of coordination and mutual cooperation in all these actions on the part of all defendants, judges included, goes well beyond happenstance. Section 1962(d) has been violated by all defendants.
The problematic area in conspiracy has to do with relevant claims of immunity. All documents, including fraudulent documents, introduced into court proceedings have immunity within the context of those proceedings. However, this immunity does not extend to the method or circumstances of their acquisition.[115] All documents and/or other materials sent or received through the United States Postal Service which contain or involve fraud, or are used for fraudulent purposes, are thereby stripped of immunity. As predicate acts of mail fraud, they have no immunity and are not protected by having been subsequently used in judicial proceedings.
Likewise, a private attorney actuated by malicious motives or who shares the improper motive of his client may be personally liable for damages suffered by a third party as a result of the attorney’s actions, including the making of allegedly fraudulent statements in the course of discovery or at trial.[116] The known fraudulent use of fraudulent documents associated with mail fraud surely represents “malicious motive.”[117] Fraudulent schemes hatched outside the courtroom have no immunity.
That Judges George R. Reynolds, Michael F. Bolin and N. Daniel Rogers have knowingly and actively participated as co-conspirators with the other defendants to this litigation is irrefutable on the evidence presented in this pleading. Whether granted immunity for none, part or all of their actions in support of the acts of fraud against Frieda Eversole and Finley Eversole, their roles must nevertheless be detailed, for without an understanding of the parts played by them, the RICO scheme as a whole lacks coherence and full comprehension.
For purposes of 1962(d), we should distinguish between predicate and overt acts. Predicate acts are those so defined under §1961(1). Overt acts are any non-predicate acts causing or resulting in proprietary injury. Under §1962(c) only predicate acts qualify for recovery for proprietary injuries. Under §1962(d), according to the Pinkerton doctrine, any act, if conspiratorial in nature, which causes proprietary injury qualifies as an act for which recovery is available – the conspiracy providing the RICO violation essential to recovery.[118] Examples of such overt acts, in our case, would be Tingle’s creation of a fraudulent “court order” used to deceive the security guard and condo manager so as to gain entry into the building and break and replace the locks on our condo door, permanently locking us out of our own home. Such acts are not predicate acts per se, but they are overt acts. And because Tingle, McWhorter, Ken Traweek, Kathy Blackford and other Hand Arendall staff conspired together in these acts, they constitute overt conspiratorial acts. The lockout resulted in numerous expenses and financial losses for which there is no other proximate cause – e.g., having to replace clothing and furniture and pay rent for twenty-seven months on an apartment. Consequently, under §1962(d), full recovery for all proprietary losses resulting from these conspiratorial overt acts should be available. Recovery for all predicate acts is also available as conspiratorial acts under §1962(d). These are dealt with elsewhere.
Frieda Eversole and Finley Eversole have suffered proprietary injuries as a direct consequence of the RICO conspiracy against them and the overt and predicate acts committed in furtherance of that conspiracy. The nature and scope of these injuries are detailed below in §1.2.3.6, §1.2.4.4, §1.2.5.1, §1.2.6.2 and §1.2.6.3, where they are pled in compliance with FRCP 9(b).
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§1.2.3.2 Shared Knowledge of Conspiracy’s Objectives
This question has been largely answered by the statements and arguments set forth above in §1.2.2.4, §1.2.2.5 and §1.2.3.1. The primary objective of the conspiracy was and remains the self-enrichment of defendants, directly or indirectly, from the assets of the estate of Frieda Eversole, plus obstruction of the efforts of Finley Eversole to prevent the conspiracy’s goals from being realized. The fact that every defendant to this proceeding has either acquired monies or property from Frieda Eversole’s estate, or is attempting to do so, establishes shared knowledge of the conspiracy’s objectives.
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§1.2.3.3 Agreement to Violate §1962(c)
As previously noted, §1962(c) states:
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.
Courts have held that a defendant can be held to conspire to violate §1962(c) even without participating in the affairs of the enterprise – i.e., even in the absence of a role as an operator or manager of the enterprise.[119] Vicarious liability, a well-established doctrine of agency law whereby “principles are liable when their agents act with apparent authority and commit torts,[120] is pled in the alternative vis-à-vis Hand Arendall and the Probate Court of Jefferson County, Alabama.
Agreement to violate §1962(c) is present whenever a defendant commits or agrees to the commission of two or more predicate acts on the part of co-conspirators in an association-in-fact enterprise. Evidence of agreement may be either direct or circumstantial. All defendants to this action are alleged to have so agreed.
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§1.2.3.4 Evidence of Intent to Defraud
"The Court has broadly defined fraud as any conduct calculated to deceive, whether it be by direct falsehood or by innuendo, by speech or silence, by word of mouth, look, or by gesture. Fraud includes the suppression of the truth, as well as the presentation of false information."[121]
Evidence of intend to defraud requires motive and opportunity. We’ve established greed and the desire for self-enrichment at the expense of Frieda Eversole, her assets and own needs, as the primary motive behind the fraudulent actions in this case. Opportunity came in several forms: (1) my father’s request that Ken and Helen Traweek serve as his go-between (due to poor health in his final months) with Daniel Hull in handling the legal work on the Trust providing for mother’s needs after his death; (2) Ken’s possession of a void Durable Power of Attorney in mother’s name which he, McWhorter and Tingle could pass off as valid as the rationale for their legal actions; (3) the quid pro quo relationship between Tingle and Judge Reynolds, insuring Tingle access to any estate with assets, and Ken’s long-standing friendship with Tingle; (4) the availability via Tingle of McWhorter’s legal services at no cost to Ken and Helen, making their legal action against mother a “freebie,” etc. There’s no need for exhaustive reiteration. The point suffices: motive and opportunity existed.
How then can one possibly question that the numerous resulting acts of fraud – mail fraud, wire fraud, extortion, Hobbs Act violations, theft and suppression of evidence, a spurious “court order,” deception of a security guard and the condo manager, breaking and entering, repeated illegal searches of the condo, defamation, fraudulent documents, endless factual misrepresentations, perjured testimony, concealed relationships and conflicts of interest, refusal to account for the assets of the estate, conspiracy against our legal and due process rights, etc. – were anything other than intentional? To treat all these fraudulent acts as “honest mistakes” goes beyond credulity.
All predicate acts in this case are part of a larger pattern of intend to defraud.
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§1.2.3.5 Malice, Defamation and Virulent Intent
“Truth is generally the best vindication against slander.”
-- Abraham Lincoln
“Malice, intent, knowledge, and other conditions of mind of a person may be averred generally.” FRCP 9(b).
Malice, the desire to inflict harm or suffering on others by
wrongful acts, has driven the actions against us by the defendants in this case
as wild wind drives a hurricane, while the defendants’ greed is the hurricane that
has leveled everything in its path. We’ve endured willful intent to cause suffering
through dire economic deprivation; fear induced by recurring threats to “remove
Mrs. Eversole from her home and son’s care;” vindictiveness motivating the
destruction of my business and livelihood; numerous lies, fabrications,
malicious allegations, slander and defamation – all aimed at discrediting me so
as to “justify” the actions of the court, the Traweeks,[122]
Tingle, McWhorter, Colee et al.
We’ve had to cope with suppression of evidence, denial of due process,
deprivation of our liberties, and subversion of our constitutional rights.
Behind it all lies a conspiracy of greed and corruption the likes of which I’d
never previously encountered.
Defamation of character has constituted the whole of the case alleged against me in probate court as the rationale for securing control of the Eversole estate. If a statement is defamatory, is communicated to a third person, contains implied facts which can be proved true or false, and directly concerns the plaintiff, the law presumes damages in most circumstances. Libel, defamatory statements communicated in writing, when they cause injury to reputation or to one’s business or livelihood, is slander per se and damages are presumed. Where pecuniary losses are directly traceable to defamatory utterances, damages are presumed. At common law, truth is a defense, but the burden of proving truth is on the defendant who makes the utterances, not the injured plaintiff.
Where emotional distress is caused by utterances of a defamatory nature, constitutional rights may be violated, and liability falls to the one making the reckless statements and causing the emotional distress. Reckless disregard applies when a party makes or repeats statements he/she knows to be false or knows he/she has no basis for judging of their truth or falsity.
Where a plaintiff has done nothing to incite or contribute to the defamation, and it comes without warning and strikes an unsuspecting victim, the plaintiff cannot avoid the injury by taking advanced precautions. Where the defendant has full control of all facets of the defamatory publication and could have avoided injuring the plaintiff by not publishing statements of a false or defamatory nature, the publisher is responsible for the decision to publish the defamatory falsehood. As has been said, “The plaintiff in those cases is in the same position as a person hit by flying debris from an explosion.” Amen! The defamant is responsible for the scope and magnitude of the “explosion” and consequent damages and injury.
The defamatory statements made about me by Ken Traweek, Helen Traweek, and Joyce Burbank in and out of court may well be the origin of everyone else’s lies, but Doug McWhorter and especially James Tingle are the worst offenders. Tingle has accused me of “defamatory” remarks against him, but it is he who has spent the past four-and-a-half years lying about me, stealing from me, seizing and sabotaging my business, disrupting my life’s work, fabricating fraudulent claims against me, hounding me with relentless litigations, taking and destroying crucial evidence, conspiring in lawless acts against mother and me, forging his own “court order,” locking us out of our home, denying mother use of her own monies for the basic necessities of life and healthcare, refusing to account for her assets under his control, fighting our move to Tennessee and efforts to get a fair hearing in the probate court in Nashville, etc. Then he tells me that I’m “not above the law” when I ask for access to my own property. No one is more in need of hearing the remarks of James C. Turner, executive director of Americans for Legal Reform, who said, “The right to practice law is not a right, it’s a privilege. When you’ve committed felonies that involve moral turpitude, you shouldn’t be practicing law.”[123]
Of all the people I have ever encountered in my lifetime, I can state categorically that Tingle is the worst of the lot! The mere fact that anyone would appoint him over the assets of the elderly is overwhelming evidence in my opinion of intent to defraud. Nothing would give me greater satisfaction than to get this man on the stand, under oath, before a jury, after bringing in a parade of his victims, and compel him to account for his cruel and exploitive actions. What a CNN story that would make!
Defamation? He thinks my opinions of him are defamatory, but he has never refuted them with a single fact, a single explanation for his actions, a single accounting of my mother’s assets, or a single piece of tangible evidence in support of his many defamatory and false allegations about me! The court need not be deceived into thinking that there is anything but animosity toward and utter distrust of Tingle by mother or me. That he and Ken Traweek have been friends since 1963 says a lot about Ken Traweek and goes a long way in explaining all our problems. The actions against us were “engineered” by someone well experienced at it who knew all the devious strategies and necessary lies.
I must cite a few examples here in support of my statements:
1) In a memorandum dated November 9, 2001, Tingle alleged that $22,951.03 of mother’s assets (monies from a CD closed out by her) “were put into Finley’s name.” That statement is a flat out lie! Roughly half of the monies were added to an Annuity belonging to my mother and in her name, and the balance went into a savings account set up at her request as an “emergency fund.” Dick Parr, manage of the Annuity, had informed Tingle of the addition of the funds to mother’s Annuity, so he was not ignorant of the facts. Consequently, when he stated that the monies “were put into Finley’s name,” he knowingly lied!
2) Tingle brought suit against me in Circuit Court, Judge Rogers’ court, based on a fraudulent claim. As to the financial facts at issue, Tingle alleged that my statements concerning the funds in mother’s Annuity were “hearsay” and “made without personal knowledge of the amount in the annuity.” Inasmuch as I‘m the one who initially set up the annuity at 7.35% interest and regularly received reports on it, I believe that provides me with a basis for knowing how much was in it. Therefore, Tingle’s fraudulent assertion that it contained “$104,573.38” and that I’d stolen the difference is utterly false, and the assertion itself is fraudulent and defamatory. Nor does he cite a source for his figures or produce proof beyond having Judge Rogers “certify” that amount as “correct.” In opposition to that claim I am attaching as Exhibit E a copy of a report from Frank Siegel, the Birmingham representative for Solomon Smith Barney, showing that the amount of the Annuity on 01/31/00 was in fact $81,598.31, close to what I’ve alleged all along. The discrepancies are significant. Without our financial records -- which Tingle locked up in the condo on March 3, 2000 and never allowed us access to and which were missing when we were finally readmitted to the condo on or about March 5, 2002 – a complete resolution of this dispute is virtually impossible. However, it is clear that Tingle’s claims are false and fraudulent. No wonder my records went missing! This man knows all the dirty tricks. Since Tingle, or someone he admitted into the condo, took and, I assume, disposed of the original financial records, his own alleged figures must be dismissed as a sanction for spoliation of evidence and for his wrongful acts. Judge Rogers’ Summary Judgment in support of that fraudulent claim must be declared void for the reasons set forth here and further on in this pleading.
3) Among the many fraudulent accusations made against me by Tingle in his Response Brief to our appeal to the Alabama Supreme Court of his appointment as conservator are such fabricated lies – alleged to have “had the benefit of extensive testimony from several witnesses”[124] – as: (a) that I had “borrowed substantial sums of money” from my parents and incurred substantial indebtedness to them; (b) that my parents had said of me, “We have had to bail him out in his lifetime time and time again, and it has been a real disappointment to us;” (c) that I “became completely estranged from [my] parents;” and (d) that I had “ignored [a court] order to return the ward’s property to the Conservator.” There were many, many other equally fraudulent and absurd claims made, but I must respond to these in order to show their utter absurdity.
Responding to (a): Over the course of thirty-five years I borrowed less than $1,900 total from my parents as compared to $10,000 Ken Traweek acknowledges borrowing from them. I repaid them partly in cash, partly with a stamp and coin collection which included 39 silver dollars with a market value at the time of $25 each, a large gold nugget (nearly 2” in length) from the Pike’s Peak Gold Rush, and a 300-year-old carved oak chest which they kept in the entrance hall of their home for twenty years. I more than repaid my modest loans.
Responding to (b): More bull! My parents helped me out of difficulty only once when I was moving with two 26-ft U-Haul vans, heavily loaded, which broke down leaving me stranded. Dad called and paid Global Van Lines to resolve my problems. One problem bail-out in a lifetime hardly equals “time and time again.”
Responding to (c): Never have I been “estranged” from my parents in my lifetime, ever! There was a single incident in the early 1990s which arose from mother misplacing some small bowls (worth $15), which she eventually found. The incident lead to some words between us we all later regretted. My parents ended up apologizing to me as the mistake had been theirs, not mine. All was forgiven and forgotten by all until the Traweeks decided to make it the foundation of their entire case alleging that I am a “thief” who steals from his own parents. I’ve never stolen any thing from my parents or anyone else in my life, but Ken and Helen have stolen a very expensive hand-painted punch bowl and Joyce Burbank stole mother’s family bible. They are the family thieves, not me.
Responding to (d): Tingle, McWhorter, the Traweeks, and Colee accused me of taking and refusing to “return the ward’s property” to Tingle. The problem is that the items allegedly taken were never taken,[125] and every one of them knew it. How can I “return” what I’ve never “taken”? This is a logic problem more than a legal one. I did remove from storage a half dozen unused items after we were locked out the condo and left with NOTHING. These items consisted of: (1) a chair for mother to sit in; (2) a small bedside table (which mother ate on); and (3) two lamps (so there would be some light in the apartment). I did not return them because I had no intention of making a 90-year-old woman sit and eat on the floor in a dark room! I slept on the floor for 19 months and purchased a $35 chair from the Salvation Army so I’d have something to sit on. We had my TV which had not been in use in Birmingham, and this is all we had initially in Nashville. Later, we pulled a few more of my things from storage to decorate.
Tingle, Colee and associates have always maintained that all their actions were “for the protection of” and “in the best interest of the ward” – my mother. When you add up all the things they have done to cause her maxim suffering, fear and economic deprivation¸ one can’t help wondering what their lack of protection might have been – summary execution, I suppose. This conflict has been so one-sided from the start, and built completely and utterly on lies, that I would not associate myself with these people for all the wealth on earth.
Not once in my entire life to my knowledge has another human being ever made such scurrilous and demented statements about me as have these defendants. The irony of it is that I’d never been anything but helpful and generous toward the Traweeks prior to their attacks on me. I helped Ken move his office to his home, installed word processing software on Helen’s computer and taught her how to use it, gave Ken and Helen hundreds of fine classical music LPs (worth thousands of dollars) when I decided to change over to music CDs, and gave Joyce her choice of any of my art prints for decorating her home. Next thing I know they’re accusing me of being Jack-the-Ripper, Jr. Should they elect to bring such charges into federal court, they had better have hard evidence, or I will be asking the jury for severe punitive damages for injuries suffered.
A little light on the truth in this case is needed given that its whole judicial life to date has been spent in darkness. The truth or falsity of a defamatory statement is the deciding issue. Where the truth is not elusive – i.e., where my reputation, history of accomplishments, financial achievements, and loving attention to my parents’ needs and care are well-known and well-documented – the truth is neither elusive nor in doubt. The facts can be known with a high degree of certainty.
Consequently, where the building of the whole case for seizing my mother’s estate rests on discrediting me and alleging me an unworthy, untrustworthy, incompetent party to oversee my mother’s assets rests on fraud, defamation of character, and liable, the court had a duty to allow adequate due process to determine the truth of such allegations. Rather, Judge Reynolds did all in his power to prevent the truth from ever surfacing! Other defendants – Tingle, McWhorter, Colee, the Traweeks, Hull and Joyce Burbank – also contributed to the slander and defamation. We have the commission of defamatory torts. Some specifics are set forth in this pleading. Others can await trial.
Virulent motive, intent to inflict maximums suffering and subvert our efforts to get the truth before the court, and efforts to deny us a fair decision, have dominated all actions of the defendants in this case.
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§1.2.3.6 Extortion, Theft and Destruction of Property
Under federal law, the crime of extortion extends far beyond the typical gangster activity conjured up by the term. Extortion is broadly defined by 18 U.S.C. §1951(b)(2) as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” The threat of economic harm, accompanied by a reasonable belief that the defendant had and would use his/her power to the detriment of the plaintiff, meets the requirement of a predicate offense. The defendant need not have caused the fear by a direct or implied threat, and the fear can be subjective as long as it is reasonable.[126] As a consequence, plaintiff must typically show that the defendant acquired property to which he/she had no lawful right. The filing of a lawsuit for the purpose of extorting property may constitute a RICO predicate act.[127] A person is guilty of extortion if he/she induces a victim to part with property through the use of fear and, in so doing, adversely affects interstate commerce. Among other things, “property” includes the right to engage in a business and all associated activities. “The intangible right to freely conduct one’s lawful business constitutes ‘property’” under the Hobbs Act.[128]
Elsewhere, we have dealt with the various forms by which fear was induced as a means of forcing us out of our Birmingham condo, resulting in the condo and all its contents, my business included, being ‘acquired’ by the association-in-fact enterprise. There were threats of physical harm, but the single greatest source of fear was the threat by the Traweeks, Tingle, McWhorter, Colee and Reynolds to “remove Mrs. Eversole from her home and son’s care.” This was mother’s single greatest fear and mine for her. She said countless times that she would “rather die” than be taken away and placed in some facility where she would receive neither love nor proper care. Without going into the history of her fear, I had promised mother for over thirty years that I would “never allow that to happen” and that I would “be there to care for you when the time comes.” We literally fled Alabama unprepared and without advanced notice when informed that McWhorter was at the courthouse getting a court order for mother’s removal and would be out “within an hour” to get her. The loss of my business and livelihood – an enterprise doing business in all fifty states and six other countries – was one of several direct consequences of this fear-induced flight to Tennessee, followed by denial of access to our property and my business in Alabama. Other details are found elsewhere in this pleading.
At some point during the twenty-six month lockout from our condo which followed, it was searched and all legal files and financial records, plus important evidence were removed from the condo. To this day we do not know who took them or when, and our complaints to Judge Bolin have not received a word of response. Therefore, theft occurred, and not just ordinary theft, but theft of records crucial to our legal defense.
There was also significant damage totaling about $5,000. It included total destruction of our refrigerator and a new upright freezer we’d purchased two months earlier, a 55 gallon aquarium with tropical fish and all its equipment, plus damage to plumbing and floors. Some repairs have yet to be made.
Extortion, theft and property damage were part of the modus operandi of the defendants. It will take discovery, perhaps compelled discovery, for us to learn the details of who and when.
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§1.2.3.7 Adverse Inference
We should be entitled to adverse inference predicated upon: (1) concealment, suppression and probable destruction of evidence favorable to us and essential to a fair defense; (2) fraudulent intent – e.g. repeated use of Ken Traweek’s void Durable Power of Attorney, quid pro quo resulting in denial of our due process rights, use of fraudulent and biased documents to defeat our appeal to the Alabama Supreme Court; (3) obstruction of our constitutional rights when we sought to remove ourselves and our property to Tennessee; (4) concealment of relationships and conflicts of interest; (5) refusal to comply with a subpoena, refusal to provide financial accounting of assets of Frieda’s estate; (6) failure to adhere to terms of conservatorship and abide by court orders; (7) knowledge that statements made in documents and court testimony was false, lack of supporting evidence for any allegations upon which case was predicated; (8) extreme judicial bias of Judges Reynolds, Bolin and Rogers, one-sided decision-making.
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§1.2.4 The Pattern of Racketeering Activity
While the pattern element has received less attention by the courts than some other elements of RICO, the definition of pattern in 18 U.S.C. §3575(e), included in Title X of the Organized Crime Control Act of 1970, appears to provide what Congress had in mind for the relatedness prong of RICO’s pattern element. Section 3573(e) states that “criminal conduct forms a pattern if it embraces criminal acts that have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.” The courts have said, “RICO liability extends not only to the defendant who pulled the trigger, but also to the defendants who ordered and directed it.”[129]
We believe it is well established by the facts and arguments set forth in this pleading that the predicate acts alleged are part of a long-running pattern of racketeering activity which existed for decades before we became its victims, and that it will continue as long as the federal courts do not step in to halt it. In our experience since June 14, 1999, two probate court judges, Reynolds and Bolin, have operated in the same manner vis-à-vis us and the assets of the elderly, especially women, and Tingle, Hand Arendall, Colee, and presumably McWhorter have been at the center of decades of fraud and extortion aimed at acquiring for their own self-enrichment[130] the assets of allegedly “incapacitated” senior citizens. Whether Reynolds and Bolin have benefited beyond “paying their political debts” by so exploiting the elderly is unknown to me. It would in all likelihood take an FBI instigation or DOJ prosecution to determine the depths and scope of this long-running racketeering scheme in and by the Probate Court of Jefferson County.
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§1.2.4.1 Predicate Acts Forming a Pattern
The Seventh Circuit has said,
In order to be sufficiently continuous to constitute a pattern of racketeering activity, the predicate acts must be ongoing over an identifiable period of time so that they can fairly be viewed as constituting separate transactions, i.e., “transactions ‘somewhat separate in time and place.’”[131]
In determining whether the predicate acts are sufficiently continuous, the court also suggested that relevant factors include “the number and variety of predicate acts and the length of time over which they were committed, the number of victims, the presence of separate schemes and the occurrence of distinct injuries.[132]
In our case, the relevant factors constituting a “pattern” would include: (1) the number of acts of mail fraud and wire fraud involved (requiring use of discovery); (2) the number of defendants engaging in predicate acts of mail or wire fraud (eight!); (3) the number of victims (two); and (4) the number of schemes involved.
We identify a minimum of six distinct schemes: (1) mail fraud uses of Ken’s void Durable Power of Attorney to gain control of the estate of Frieda Eversole; (2) mail and wire fraud to block the Eversole’s efforts to have their case transferred to the Probate Court of Davidson County, Tennessee; (3) various uses of the mails to divert assets from Frieda Eversole’s estate to various defendants in this case (details to be determined through discovery); (4) Hobbs Act violations involved in depleting the assets of the Eversole estate; (5) Hobbs Act violations involved in seizing and destroying The Creative Age business enterprise of Finley Eversole and divesting him of his livelihood; and (6) mail fraud elements involved in Tingle’s successful fraudulent suit of Finley Eversole for approximately $14,574.
A complete breakdown of all elements of the pattern must ultimately rely on the results of discovery, but enough elements are clearly present to satisfy any RICO pattern requirement.
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§1.2.4.2 Nexus between Pattern and Association-in-Fact
The nexus requirement means that defendants must have “conducted” or “participated in” the pattern of racketeering activity. There is no blanket immunity from RICO liability for professionals who are instrumental in carrying out a scheme to defraud. As the Eighth Circuit observed: “An attorney’s license is not an invitation to engage in racketeering, and a lawyer no less than anyone else is bound by generally applicable legislative enactments.” The court warned that it would “not shrink from finding an attorney liable when he crosses the line between the traditional rendering of legal services and active participation in directing the enterprise. The polestar is the activity in question, not the defendant’s status.”[133] In the case it issue there – a bankruptcy scheme involving an estate, the court found the law firm guilty of conducting the affairs of the enterprise through a pattern of racketeering activity.[134] The estate qualified as a “legal entity.” Likewise, Tingle’s “conservatorships” qualify as legal entities, having been so established by order of the probate court. If exploited through a pattern of racketeering activity as we allege, Frieda Eversole’s estate is a victim of the association-in-fact enterprise, and all attorneys associated with its exploitation have RICO liability in this case. This includes Tingle, McWhorter and Colee. By virtue of the symbiotic relationship between Tingle and Ken and Helen Traweek, they qualify as “state actors,” and by virtue of the seminal roles they played are likewise liable under the nexus-pattern requirement. As for Hand Arendall, it is enough that the law firm, through Tingle and other firm attorneys, paralegals, and various assistants, played some active “’role in the conception, creation, or execution’ of the illegal scheme, for then the lawyers could be said to have assumed at least some part in directing the enterprise’s affairs.”[135] Nor, in my view, are judges exempt if they play a pivotal or determining role in a RICO enterprise. If the law is followed, judges have no immunity for actions outside the law, and racketeering activity is outside the law. There have been a good many RICO convictions of judges, so it will be up to the federal court in this case to determine whether immunity should apply or whether Judges Reynolds, Bolin or Rogers have acted beyond the bounds of the law.
Without further comment, we allege that the nexus between the pattern of racketeering activity and the association-in-fact enterprise is adequately established in our case.
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§1.2.4.3 Proprietary Injuries Suffered By Reason Of
The proprietary injuries suffered by us (Frieda and Finley Eversole) fall into three categories: (1) the economic exploitation of the estate and assets of Frieda Eversole; (2) the unlawful seizure and permanent shutdown of The Creative Age, a dba art publishing enterprise wholly owned by Finley Eversole, and his sole source of livelihood; and (3) the bringing of a fraudulent claim by James Tingle against Finley Eversole, wherein he falsely alleged that Finley had enriched himself with assets of Frieda Eversole in the amount of $14,574. Fraudulent and unlawful means were used in the granting of a Summary Judgment on that claim by Judge Rogers. Each of the three categories of proprietary injury represents substantial financial losses as a direct result of fraud relying upon RICO predicate acts.
Among the factors by which proximate causation is determined is whether proprietary injury could reasonably have been foreseen or anticipated as a consequence of an action. For example, were the legal advantages gained by use of Ken’s cancelled Durable Power of Attorney by the Traweeks, McWhorter and Tingle reasonably foreseeable? Was the destruction of my business and loss of livelihood reasonably foreseeable as a consequence of Tingle’s locking us out of the condo and denying me access to remove it? Was the subversion of our efforts to have our case moved to the Probate Court of Davidson County, Tennessee a foreseeable consequence of Colee communicating to Mark Walker, the Tennessee guardian ad litem, fraudulent statements and false allegations about me, my integrity and ability to manage my mother’s affairs?
In each case, predicate acts were the proximate cause of the proprietary injuries – i.e., these injuries occurred by reason of violations of the mail fraud and wire fraud acts, the Hobbs Act and extortionate[136] activities. But for the various alleged predicate acts, no economic injuries should have occurred. As these activities have been extensively noted and detailed in other sections of this pleading, I refer to them in the interest of economy, chiefly §1.2.6 and its subsections.
[Back to top]§1.2.4.4 Affect on Interstate and Foreign Commerce
The affect of the association-in-fact enterprise and predicate acts of racketeering on interstate and foreign commerce is dealt with in some detail below in §1.2.6.2 (The Hobbs Act) and §1.2.6.3 (Mail Fraud and Wire Fraud). As earlier noted, it is the RICO enterprise itself, not the predicate acts, and its affect on interstate or foreign commerce which gives rise to liability, while it is the “persons” associated with the association-in-fact enterprise who, by violating §1962’s provisions, incur liability. All defendants to this action are alleged as “RICO persons.”
In our case, economic injuries by way of exploitation of the estate and assets of Frieda Eversole, the destroyed business and livelihood of Finley Eversole, and Tingle’s successful Summary Judgment on a fraudulent claim against Finley – all have affected interstate and foreign commerce by way of a depletion of the wealth of the Eversoles. The law only requires a de minimis affect on commerce, but in our case that affect amounts to hundreds of thousands of dollars in lost assets and income! The resulting injury to commerce is by no means de minimis.
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§1.2.4.5 Continuity and a History of Suffering
Not much attention needs to be paid here to the question of continuity as it has already been sufficiently addressed in the preceding sections. The chief point I wish to make here is that is has resulted in extraordinary suffering for us. Nor would it would be an overstatement to say both mother and I have experienced a hundred times as much suffering at the hands of the probate court, judges, Tingle and others associated with this association-in-fact as by all our other life experiences added together. Not even Edgar Allen Poe could do justice to the nightmare we’ve endured; the scars reside within our souls. That we’ve survived its physical and emotional agonies is due entirely to my iron-willed resolve, while our economic survival is due in no small part to the help of loving friends who loaned or gave us money, paid portions of our rent, or provided us with transportation. Had the defendants in this action had their way, mother certainly would not be alive today, and it’s a fair guess that I might have soon followed. As noted elsewhere, I’ve lost well over 4000 hours of sleep agonizing over how to cope with or respond to the never-ending problems put upon us. I’ve heard stories similar to ours from many sources. The Birmingham Social Security office says “Tingle has taken the Social Security of every Social Security recipient over whom he has been made conservator for the past ten years, and very little of it has ever reached the intended recipients.” “Wards” under Tingle’s control are often denied access to their own assets for such basics as food, utility bills, and prescriptions. How well we know it!!! If they go in person to Tingle’s office seeking help, I’m told they are ushered from the building by Hand Arendall without seeing him. Pattern-confirmation discovery should be allowed.
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§1.2.5 Injuries to Business and Property
“So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community.”
-- William Blackstone[137]
“You reproach us with planning to do away with your property. Precisely; that is just what we propose.”
-- Karl Marx & Friedrich Engles
It’s pretty clear which philosophy guides conservatorships in Alabama.
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§1.2.5.1 Discovery of Injury and the Statute of Limitations
When we were first dragged into the Probate Court of Jefferson County, we had no clue as to what lay ahead or the nature of the trap that had been laid for us. We learned of the reason for the initial hearing only upon arriving at the courthouse. There had been no advanced notice, only a phone call from Donald Colee 32 hours earlier informing us that we were required to appear in probate court. When I first read the charges fabricated by Ken Traweek, I didn’t take them seriously. They were so ludicrous and untrue that I assumed they would be dismissed outright following a fair hearing. In the hearings which followed, if they can be called “hearings” (the requirements of due process were largely ignored, a subject taken up later in this pleading), we were always blindsided by new and unexpected allegations. No need to review what followed beyond saying that to this day there has never been a shred of tangible proof submitted in support of a single one of the fabricated allegations.
My point here is that we sustained catastrophic financial injuries, were locked out of our own home for twenty-seven months, and suffered violations of our constitutional rights. At each step along the way, we were informed that the court’s actions were entirely “legal” – a view I dispute now that I’ve spent some time studying the law. However, the earliest date that the RICO statute of limitations can be said to begin to run would be March 4 or March 8, 2000. Up until the events of those dates, everything appeared to be essentially a dispute over the correctness of Judge Reynolds’ decision in appointing Tingle as conservator of mother’s assets. However, on March 3, 2000, James Tingle, using a fabricated “court order” alleged to be “a valid court order signed by a judge,” got past the security guard and condo manager of the building wherein mother and I resided – 1300 Beacon Pky E., Unit 305, Birmingham, AL 35209. See Exhibit F. Having gotten in, Tingle and/or his associates proceeded to break and replace the locks on the doors of our condo, locking us out. At the time of his actions, he was unaware that we were contemplating a move to Tennessee. In taking his actions, it would have been impossible for Tingle to know we had another place we could go; so his action was tantamount to denying us any place to live!
On information that McWhorter was at the courthouse getting a court order to remove mother from her home and my care, confirmed to us from two sources within five minutes of each other, and with only a few clothes, we walked out of our home on February 29, 2000 and drove to Nashville where we had rented an apartment the previous day. Occupancy was to begin March 1, but when we arrive in Nashville, we were allowed in so we wouldn’t have to spend a needless night in a motel, and mother and I both “slept” on the floor. In fact, neither of us slept more than 15 minutes the entire night.
On March 4, 2000, we received a call in Nashville from Bob Kracke informing us that he had just learned that Tingle had replaced our locks and halted any further access by us to our condo. We were told he had a court order, but that Judge Reynolds denied issuing it or having any knowledge of Tingle’s actions. As we would learn on or about March 15, Judge Reynolds issued a court order on March 8, 2000 declaring “the home place abandoned” and giving Tingle total control of the condo and its contents. These events represent the earliest date at which we can affirm having knowledge of injurious acts of a questionable legal nature[138] which would result in major proprietary injuries. And it marked the beginning of a long and bitter conflict between us and Tingle, McWhorter, Colee, Reynolds, Bolin and the Traweeks. In truth, the illegal aspects of Tingle’s lockout only came to light bits at a time over a period of months. It would be a year before the fraudulent nature of Tingle’s spurious “court order” would become known to me. But in order to avoid any possible dispute as to when the RICO statute of limitation began to run, I’m using March 4, 2000 as the earliest possible date – the date we learned of Tingle’s lockout. As it led to massive financial losses and the destruction of my business, which I tried numerous times in various ways to recover, without success, Tingle’s lockout was my eureka moment, the beginning of my awakening to the true lawlessness of what we were up against. Much is still unknown. There may be grounds for tolling, but that may depend on the results of discovery.
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§1.2.5.2 The Nature and Scope of Our Predicate Injuries
The ruse that Tingle’s conservatorships are created to protect the welfare and assets of “wards” in Jefferson County is both ludicrous and tragic. Moreover, neither my personal property nor my business which Tingle destroyed were any part of Frieda Eversole’s estate, meaning that neither Tingle nor the probate court had any legal jurisdiction over them. The fact that Tingle “lost” (allegedly destroyed) a videotape Kracke made identifying which assets in the condo belonged to mother and which to me,[139] and the fact that the probate court then used its disappearance as a rationale for “declaring all contents of the condo to be the property of Mrs. Eversole” serves only to demonstrate the corruption which is the hallmark of this court. If at times I display a bit of sarcasm or anger, it is because the actions of the defendants in this case have lacked any foundation in truth; any regard for my mother’s needs, wishes or welfare; any respect for the lives and labors of three people (my mother, my late father and me) spent acquiring what we had, or an iota of respect for law or the Constitution. Dealings with the Probate Court of Jefferson County are a Kafkaesque experience we would have been more than happy to do without.
Our financial injuries were extensive. At the time mother was declared "incapacitated," she had financial investments approximating $425,000.[140] All of these assets were seized and turned over to James Tingle. With earnings that would have accrued over the past four-and-a-half years, the value of mother’s estate would exceed $500,000. Since the commencement of the conservatorship, mother has received less than $30,000 for all her own needs, plus $14,000 for an automobile to replace the three vehicles lost as a consequence of Tingle's actions.[141] Today, we know the whereabouts of only $211,000. Tingle refuses to account for any of mother’s assets.[142]
Calculating the financial losses associated with my business is a bit more complicated because it would need to take into account all monies invested in building the business, all sales and income lost as a consequence of it shutdown, the value of the reputation of my company and its potential market value had it not been destroyed, injuries associated with the destruction of my credit rating, value of loss publishing contracts, loss of right to compete in a lucrative industry, lost of a valuable customer base, loss of value of remaining inventory, loss of my vehicles, investments in unfinished works and rights, etc. All of this can be calculated at the appropriate time if this case goes forward.
Then there is the $14,574 judgment against me as a consequence of Tingle’s fraudulent claim and suit and an unlawful Summary Judgment.
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§1.2.5.3 Injuries Traceable to Unlawful Conduct
All these injuries can be traced to unlawful conduct if, by unlawful conduct, you include the quid pro quo understanding by which Tingle gains control of any estate with money which comes before the probate court, the concealment of relationships representing major conflicts of interest, the fraudulent use of documents plus all predicate and overt acts causing injury, the scheme and conspiracy itself, and the violations of due process and constitutional rights central to the working of the scheme. While the last of these are not RICO acts per se, they constitute unlawful conduct. Taken together, they reveal a pattern of lawlessness, scheming, corruption, cruelty, indifference to need, and entrapment of victims worthy of the Marquis de Sade.
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§1.2.6 The Predicate Acts
Predicate acts encompass all acts defined as “racketeering activity” and resulting in “injury…caused by activity which RICO was designed to deter.”[143] These are defined in §1961. They include mail fraud, wire fraud, robbery and extortion, and the Hobbs Act – the acts alleged here.
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§1.2.6.1 Relation of Acts to Enterprise’s Affairs
The racketeering acts of the RICO enterprise appear to be a “regular way of doing business.” The Court has said “arbitrary power…is not law.”[144] Yet the actions of the judges of the Probate Court of Jefferson County have the appearance of arbitrary exercises of power which have little relationship to law. Victims of the court are chosen more-or-less at random -- money and its possession being the governing criteria by which victims are selected. A scheme is devised to get them before the court where a sham “hearing” follows. Persons are declared “incapacitated” without supporting medical evidence or adherence to the requirements of due process.[145] A person’s assets are then seized and handed over to Tingle. Thinking back over the past four-and-a-half years, I cannot recall a single act of the court or any attorneys which constitutes a faithful adherence to the intent, spirit or requirements of the law or the Constitution of this magnificent democracy. Instead, what one gets are: quid pro quo, arbitrary abuses of power, concealed relationships, clandestine activities, unscheduled court hearings, and a blind eye and deaf ear to all abuses of the law. Such acts appear to be a “regular way of doing business” on the part of the named defendants in this case. Thus are the RICO acts and RICO enterprise united by a quasi-legal process which benefits everyone but its elderly victims. To be more detailed at this stage would push the length of this pleading beyond all reason. There’s time for that at trial to bring everything into the open.
The Probate Court of Jefferson County is a major vehicle for these abuses of power, fraudulent acts, and arbitrary decisions by which this quasi-legal process operates. But for the blind eye of the court and its indifference to the law and those it victimizes, the financial exploitation of the elderly would be a much more difficult undertaking. That is why we have named the probate court itself as a “RICO person” in this action. Governmental agencies, including courts and court systems, can serve as racketeering “enterprises.” Therefore, alleging them as “RICO persons” in an association-in-fact enterprise is legally consistent. Every circuit has taken the same expansive position and the Supreme Court has repeatedly declined to review the issue.[146] There are many cases of conviction of courts and court systems.[147]
By withholding documentation crucial to our defense[148] in our appeal of Tingle’s appointment to the Alabama Supreme Court, the Probate Court of Jefferson County fostered a false presentation of the issues favorable to the probate court’s own ruling. This distortion of evidence very likely accounted for the high court’s denial of our appeal. The probate court is a reckless enterprise. It refuses to enforce its own court orders vis-à-vis Tingle, even when his conduct results in dire suffering and economic deprivation to those declared “incapacitated” and “wards” of the court. It provides no supervision of the handling of the assets of estates under its jurisdiction. It does not require enforcement of Alabama’s own laws. It concealed ex parte communications, even while relying upon them in its own decision-making. It is aware of fraud and perjury, even encouraging it. An example is the fraudulent statement by Colee at the ex parte March 2, 2000 hearing alleging that I had "done various things as Guardian to the detriment of the ward."[149] Judge Reynolds responded, saying, "If you are trying to build up a file or record to show that some protective order needs to be issued for the benefit of the ward, that is a whole different ball game....Man, if you want to put on something, I will let you put on anything you want to put on....If you'll can figure a way out, fine and dandy. I just think he has bambooede [sic] you and I am for you if you can figure a way out. Get me something I can use." (Emphasis added)[150] When Tingle used a fraudulent “court order” of his own creation to gain access to our building and replace the locks on our condo doors, Reynolds, rather than chastising him for illegal actions, issued a court order on March 8, 2000, supporting them! In order to coerce us to move back to Alabama, Bolin, along with his treats, made a series of promises which, except for allowing us back into the condo, he has not kept and refuses to keep. In essence, Bolin deliberately deceived us. And the list goes on. The Probate Court of Jefferson County and legal profession serve as joint vehicles for the predicate acts of the association-in-fact enterprise.
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§1.2.6.2 The Hobbs Act
As cited above, the Hobbs Act states:
Whoever in any way or degree obstructions, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, of both.[151]
The Hobbs Act requires proof (1) that a defendant took or obtained tangible or intangible property by means of robbery or extortion and (2) that the defendant’s conduct obstructed, delayed or affected interstate or foreign commerce. Only a de minimis interference with commerce is required for violation of the statute. The Hobbs Act defines robbery as the “unlawful taking or obtaining of personal property” against the victim’s will or “by means of actual or threatened force, violence, or fear of injury, immediate or future….” Extortion is defined as obtaining property with the victim’s consent, which was “induced by wrongful use of actual or threatened, force, violence, or fear, or under color of official right.” Courts have uniformly held that fear includes fear of economic injury or loss.[152] Proving fear of economic harm requires only that the plaintiff establish that he/she had a reasonable belief that the defendant had the power to harm the victim and would exploit that power to the victim’s detriment.
The Supreme Court has held that the Hobbs Act is meant to punish extortion and robbery to the outer boundaries permissible under the Commerce Clause.[153] This argument is predicated upon the depletion of wealth theory -- viz. that the victim’s assets would otherwise have been available for the purchasing or distribution of interstate goods and services. Conspiracy to extort under §1951 is also a proper predicate act because conspiracy itself is “indictable under” that provision.[154]
The concept of property under the Hobbs Act, as developed from its legislative history and numerous court decisions, is not limited to physical or tangible property or things,[155] but includes, in a broad sense, any valuable right considered as a source or element of wealth.[156] The right to pursue a lawful business, including solicitation of customers necessary for the conduct of such business, has long been recognized as a property right within the meaning and protection of the Fifth and Fourteenth Amendments.[157] In a pre-Hobbs Act decision, the Court said property “consists of the free use, enjoyment, and disposal of a person’s acquisitions without control or diminution.”[158]
Threats, Fear and Economic Loss: The unique nature of many elements of our case makes it difficult at times to draw a bright line between “robbery” and “extortion.” For example, is it robbery or extortion when someone, using a bogus “court order,” gains access to and breaks and replaces the locks on the doors to one’s home, afterwards resorting to a variety of threats -- physical, economic and allegedly legal -- to deny one access to one’s own home for twenty-seven months!? Property was unlawfully obtained[159] against our will. Grave economic injuries were the direct result.
There was the ever-present prospect of physical injury if we attempted to regain access to our property. I was physically assaulted in our living room on January 9, 2000 by Ken Traweek,[160] and the glaring looks of hatred he always gave us thereafter were a source of alarm. I was concerned enough to purchase a canister of pepper spray and kept an antique weapon nearby for self-defense purposes only. I discussed our concerns about Ken’s violent temper and our safety with a number of people including Scott Johnson, a detective with the Birmingham police, and later with FBI agent, Alton Sizemore, Jr. Exhibit G is a copy of a letter dated June 14, 2003, written to Ken Traweek by Nancy Ripp of the Regency Summit Owners Association, addressing a verbal threat Ken made “to use firearms” against a workman hired by the condo association to do grounds work around our building. One month later, on or about July 14, 2003, Ken carried out his threat by threatening the life of the workman with a shotgun. The police were called, and the Traweeks have been a point of concern to other condo owners ever since. Any suggestion that our concerns about Ken’s violent temper are unjustified simply ignores the evidence. Mother is deathly afraid of Ken, and his proximity to us is a source of concern for me. We moved to Tennessee on February 29, 2000 in part to escape this situation only to have Judge Bolin force us to return to Alabama against our will with threats of total economic devastation if we failed to comply. Bolin’s actions are dealt with elsewhere in this pleading.
The economic consequences of Tingle’s lockout were devastating for us, leaving us without adequate means of survival.[161] We lost access to all of our property, even our clothing, and I lost my ten-year-old business and sole source of livelihood. Absolutely nothing we attempted by way of a resolution of the resulting problems met with an iota of success. On March 8, 2000, Judge Reynolds issued a court order declaring “the home place abandoned” and granting Tingle total control of our property. By June, 2000 all my personal funds were exhausted. On or about June 7, 2000, Harold Gregg went in person to see Judge Reynolds and appealed to him to allow me access to my business, but Reynolds was adamant in his refusal! On May 31, 2001, Judge Bolin issued an order again denying me access to my business. See Exhibit H. It had now been fifty months since Tingle seized and shut it down, and any hopes of reviving my business were fading fast. Because mother’s condo became my place of business when I moved in on June 1, 1999 to continue as her fulltime care provider following my father’s death, any interference with my access to or use of the condo for business purposes constituted an “interference with interstate or foreign commerce” and, thereby, a violated the Hobbs Act.
It seems to me that the line between robbery and extortion is blurred in our case. We did not so much “consent” to the seizure of our property as acquiesce in the face of threats and dangers we viewed as potentially life-threatening. Tingle, McWhorter, Colee, the Traweeks, and Judge Reynolds had agreed upon, and Reynolds had issued a court order to physically take mother from her home and my care if given an opportunity, and a few months later Ken and his family got an arrest warrant against me. Any return to Alabama, even for court hearings, placed us in harm’s way.
To recap, during the twenty-seven months we were locked out of our condo by Tingle and the probate court judges, Tingle, Ken and Helen Traweek, an associate of Tingle, and seven other people whose identities remain unknown to us were seen by neighbors entering and spending substantial periods of time in our condo. When we finally got back in, evidence showed that the condo had been searched. All legal files, financial records, and several important items of evidence had been taken, and there was about $5,000 in property damage. Therefore, theft and destruction of personal property had occurred.
Robbery or extortion? The court and jury will have to decide. I allege both in the alternative as both clearly took place. We felt threatened by violence in a variety of forms, both to ourselves and our property. I had recurring nightmares in Nashville that we returned to our condo only to find it stripped bare of its contents. Our property was “obtained” against our will and over our vehement protest. The actions of Tingle and the court took place “under color of official right,” and we always believed the various threats against us would be carried out if I gave them any opportunity. Only by remaining outside of Alabama and the jurisdiction of the probate court did we feel any measure of safety.
The affect on interstate commerce will now be addressed, first, as affected by injuries to the estate and assets of Frieda Eversole, then vis-à-vis the loss of the business enterprise and livelihood of Finley Eversole.
A) Economic Injuries to the Estate of Frieda Eversole
As I have argued throughout this pleading, declaring Frieda Eversole “mentally incapacitated” and seizing all her assets and turning control of them over to James Tingle was nothing more than a form of court-ordered theft – a means of gaining control of an estate for purposes of exploitation by the court, court-appointed attorneys, and their friends. No medical proof of the alleged “incapacity”[162] existed, nor have any of the defendants ever introduced a single piece of hard evidence or documentation as proof of their fraudulent allegations used against me to deny to me conservatorship of my mother’s assets -- in which case they would have been use for her needs. Nor has a single independent witness come forward to support those allegations. They were simply “manufactured out of thin air” by Ken and Helen Traweek, James Tingle, Douglas McWhorter, Donald Colee, and Daniel Hull. At the outset, I provided copies of all our financial records, and not a single item was ever challenged by Colee, McWhorter or the court as an “inappropriate expenditure.” There was no transfer of any of my mother’s assets into my personal or business accounts, contrary to claims later made by Tingle. In fact, I put money into our joint accounts, carrying my own financial weight while attending to my mother’s care and welfare. I had built a financially successful business which provided me with a decent income. There was Zero Cause for the actions taken against us by the defendants in this case.
I reiterate these points in order to make the point that the seizure of my mother’s assets by Tingle, the Traweeks and the court was all about their desire to get control of these assets for themselves! GREED – the cause of ninety percent of the ills of humanity – selected us because we had acquired a few assets from our lifetime of labors. Therefore, all injuries to business or property and consequent affect upon interstate or foreign commerce resulting from this RICO association-in-fact enterprise represent violations of the provisions of the Hobbs Act.
So what were/are some of the adverse affects on interstate or foreign commerce resulting from mother’s loss of her financial assets? Her losses took two forms: (1) loss of access to her own assets for her own use, including living expenses, healthcare, prescription costs, clothing, travel and other forms of enjoyment, and (2) the impact on her financial investments of the monies taken by the court, conservator, attorneys and others for their self-enrichment, alleges as “attorney fees,” “court costs,” etc.
Mother has had need of a number of very costly prescriptions, initially totaling just under $500/month, now closer to $700/month. Her prescriptions are manufactured by Falcon Pharmaceuticals, Bausch & Lomb, Alcon Laboratories, Parke-Davis, Pfizer Pharmaceuticals, etc. -- all interstate-international companies; and all of her prescriptions cross state lines. For nearly half of Tingle’s conservatorship, mother was denied access to any funds whatsoever for her healthcare needs or prescriptions and I had to sell my truck to pay for them. As of January 1, 2004 (after having her prescriptions mostly covered for 21 months), mother is now once again without access to funds for her prescriptions which now approach $700/month. Unless and until mother’s assets are accounted for, I have to assume that her monies have gone into the pockets of the attorneys! Meaning they are no longer available for interstate purchases.
Our food and clothing is mostly purchased at Wal-Mart and therefore represents interstate and international expenditures. For the first thirty-nine months of Tingle’s conservatorship, mother was not allowed a single cent of her money for such living expenses.
From the time mother was in college until Tingle was appointment as conservator, travel had always been her number one enjoyment in life. She and dad traveled throughout North America, Europe, Israel, and the Orient. From the commencement of Tingle’s conservatorship to this moment, mother has not been allowed a single cent for travel or other forms of enjoyment. On her behalf, I’ve begged for a little money for travel for her, but to no avail. Monies spent on travel would have affected interstate commerce in the form of motels, food, gas, tickets to events, and other purchases. In the months between dad’s death and Tingle’s conservatorship, I took mother on five interstate trips and would have continued doing so but for lack of money. She has asked me hundreds of times since Tingle took control, “When are we going to be able to take another trip somewhere?” That enjoyment of life was taken from her! Furthermore, Tingle’s financial stranglehold on us has resulted in our losing my truck and two automobiles and leaving us without transportation of our own for over two years. Interstate travel was doubly jeopardized.
For lack of money to pay our bills, our phone service and electricity were turned off six times! Utilities also affect interstate commerce.
At the time of Tingle’s appointment as conservator, mother’s financial investments totaled around $425,000. Her investments would have generated approximately $100,000 in additional income since Tingle’s takeover. Today, the whereabouts of only $211,000 is known to us. Tingle has steadfastly refused to provide any accounting of his handling of mother’s assets in spite of our many requests. Alabama law required him to provide such an accounting upon request from “the ward, ward’s caregiver, or any interested party” and to provide an accounting to the probate court itself every three years. Even the court has refused to compel compliance with the law. I filed a Motion for a Writ of Mandamus with the Alabama Supreme Court requesting the court to compel Tingle to comply with state law and our requests to provide us with an accounting of mother’s assets, and even the state supreme court denied our requests. Therefore, the total amount of monies missing from mother’s estate and investments, its whereabouts, use and possible embezzlement remains unknown to us to this day. Hand Arendall defends Tingle’s noncompliance.
The affect on interstate and foreign commerce of the loss of such a significant sum of money from mother’s investments is highly significant and disturbing. Some monies were invested in an Annuity, and, according to Scott Manchester, attorney for Life Investors Insurance Co. of America, the Annuity holder, Tingle has ordered that no information about the Annuity is to be provided to me. I’m told the reason is that Tingle removed me as my mother’s named heir should any funds remain in the Annuity at her passing.[163] Other monies are invested in a living Trust Fund managed by Citygroup Trust. These monies are invested in, but not limited to:
1. U. S. Government Securities
2. Foreign Government Securities
3. U. S. and Foreign Corporate Debt
4. Eurodollar Bank Investment Objectives
5. Select Global Growth Funds
6. Municipal Funds of New York, Georgia, Florida, Oregon, New Jersey
7. Biotech and Technology Funds
8. Qualified Retirement Funds
9. International & Supranational Org. Portfolios
10. Cash & Carry Money Market Investments
Therefore, monies withdrawn from the Eversole Trust for the self-enrichment of various state actors, attorneys, the Probate Court of Jefferson County and other defendants significantly affects interstate and international commerce as defined by the Hobbs Act. Having placed themselves in a position to gain control of and drain off funds from the Trust by means of fraud, their fraud has affected interstate and foreign commerce as defined by the Hobbs Act.
The scheme to defraud, as carried out, was and is the sole and proximate cause of the exploitation of the assets of Frieda Eversole. As the law does not require that the affect on interstate and foreign commerce be pled with particularity, the foregoing should suffice.
B) Injuries to the Business and Livelihood of Finley Eversole
In January 1990, I, Finley Eversole, following work-related injuries, had to come up with another way to generating a livelihood. After one day of self-evaluation, I hit upon the idea of launching an art publishing company. I knew art and printing, but nothing of the art print industry. Nothing stimulates me more than taking on new creative challenges and trying to do what others have not, so I decided my “edge” and challenge in a huge industry would be to publish the finest prints in the art print market. The very next day I launched my dba company, The Creative Age, with a mere $1,000. Over the next ten years I put in 70 to 90 hour work weeks, learned the business, and built a reputation for publishing “the highest quality fine art prints on either side of the Atlantic,” as one industry veteran put it. My customers included the likes of The Bombay Company, Pier 1 Imports, Tandycraft, Masco Corporation, and such major art museums as The Art Institute of Chicago, The Detroit Museum of Fine Art, the Boston Museum of Art, The Frederic Remington Art Museum, et al. Because of my high quality, I had success tapping into major private collections no other publisher had managed to access, and I was the first to publish four major nineteenth and early twentieth century American artists, now published by many of the major companies. All was going well, and by my seventh year in business, my Fall pre-Christmas sales were running $20,000 a month. My parents were impressed, and dad said, “You just might become the first millionaire in the family.” Contrast that to the picture of me portrayed by the Traweeks, Hull, and court-appointed attorneys, and Judge Reynolds’ opinion that I was not qualified to manage my mother’s assets.
All this came to an abrupt end on March 3, 2000 when James Tingle, with his fraudulent “court order” got past security, locked us out of our condo, locking my business in. By then I’d invested some $350,000 and 40,000 hours of work in my enterprise, had a business-to-business customer base of 2,000-plus companies in all fifty states, with customers and contracts also in Canada, New Zealand, England, Scotland, France and Germany, with “feelers” coming in from Pacific Rim distributors. I turned down two offers by major art publishers to buy me out. In a single day, Tingle destroyed all of it, and my sole source of livelihood was abruptly destroyed.
In United States v. Arena,[164] Judge Amalya L. Kearse, voicing the Government’s view of property, said:
[P]roperty may be tangible or intangible, and the property at issue here was the intangible right to conduct business free from threats of violence and physical harm…. A perpetrator plainly may ‘obtai[n]’ property without receiving anything, for obtaining includes ‘attain[ing]…disposal of,’ Webster’s Third New International Dictionary 1559 (1976); and ‘disposal’ includes ‘the regulation of the fate…of something;’ id. at 655. Thus, even when an extortionist has not taken possession of the property that the victim has relinquished, she has nonetheless ‘obtain[ed]’ that property if she has used violence to force her victim to abandon it. The fact that the target of a threat or attack may have refused to relinquish his property does not lessen the extortionist’s liability under the Hobbs Act, for the Act, by its terms, also reaches attempts. See 18 U.S.C. §1951
(a). In sum, where the property in question is the victim’s right to conduct a business free from threats of violence and physical harm, a person who has committed or threatened violence or physical harm in order to induce abandonment of that right has obtained, or attempted to obtain, property within the meaning of the Hobbs Act.
Justice Stevens said, “In my opinion Judge Kearse’s analysis of the issue is manifestly correct.”[165]
Extortion is defined in Black’s Law Dictionary defines as: “(1) The offense committed by a public official who illegally obtains property under the color of office. (2) The act or practice of obtaining something or compelling some action by illegal means, as by force or coercion.” And Webster’s II New College Dictionary defines it as: “Illegal use of one’s official position or powers to obtain property, funds, or patronage.”
Inasmuch as Tingle’s appointment as conservator of mother’s estate by the Probate Court of Jefferson County renders him a state actor, and inasmuch as his illegal lockout and denial of access to my business after March 3, 2000 also received the endorsement and support of Judges Reynolds and Bolin, both issuing court orders denying me access, all acted “under color of official right” in stripping me of my business and livelihood. Therefore, all committed extortion as defined by law. Since the judges lacked jurisdiction over my business, it is my belief that they also lack immunity [166]for their part in the RICO predicate act of destroying my business and depriving me of my livelihood. I had planned to continue operating my business until my mid-70s, and then sell it for a decent sum to finance my remaining years. All that is now gone.
Affect on Interstate and Foreign Commerce: By now it should be apparent that the brutal, unjustified, illegal, vindictive seizure and shutdown of my business, The Creative Age, and deprivation of my livelihood as of March 3, 2000, had a significant impact on interstate and foreign commerce. Here are a few facts concerning my business operations:
1. Printing. My prints required use of a $2,000,000 German Heidelberg press, and I did printing with companies in Alabama, Georgia, Missouri, and Colorado. I spent an average of $4,000 - $5,000 on each print published.
2. Contract Rights. I had publishing contracts with museums and agencies in seven countries. The shutdown of my company resulted in the eventual loss of all contracts and publishing rights. I also had about a dozen works press-ready at the time of the shutdown, each representing a $2,000 investment, plus some $8,000 paid out for acquisition rights on works I never had an opportunity to publish. A $30,000 loss outright.
3. Color Separations and Press Film. Each published art work required doing color separations and producing film from which press plates would be made. Getting the highest quality art prints in the industry meant being a perfectionist, sometimes doing as many as 30 trial color separations before going to final film. The average cost per work of art was $2,000. The result was 97% to 99% color fidelity to the original works of art compared to an industry average of 75%.
4. Customer Base. As previously noted, I had over 2,000 businesses as customers with a customer base in all fifty states and several other countries. All my customer records were locked in the condo. My entire customer base was lost consequent to the shutdown.
5. Trade Shows. I attended and was an exhibitor in the world’s largest art trade show, Décor’s annual ABC Show in Atlanta. Exhibiting in a single show cost me $20,000. I also attended the North Carolina Furniture Mart where I picked up pre-framed art supplier accounts tailored to the furniture retail industry. I was also engaged to do special art publish for the Henredon and Drexel Heritage furniture mfg. co.
6. Marketing and Advertising. I employed every major vehicle of marketing and advertising including: advertising in trade publications and annual art print directories, catalog marketing, direct mail marketing, print sampling to large customers, telemarketing and supplying internet marketers. I also had several regional distributors across the U.S. and in Canada.
7. Shipping Supplies. Hundreds of dollars a year were spent on shipping supplies purchased in Alabama, Tennessee, Pennsylvania and Colorado.
8. Shipping. My shipping costs also represented a sizable expenditure, shipping as many as fifty packages a day in my peak months. I shipped via UPS, RPS, FedEx and the United States Postal Service.
9. Office Rent, Supplies, Phones. The monies spent each year on office rent, office supplies and equipment, and phones, including my toll-free 800 number, represented about 5% of my annual expenditures.
10. Vehicles of Transportation. As a direct consequence of Tingle’s actions, I ended up losing my Toyota truck and two cars used in business.
11. Credit Rating. Tingle’s action also led to the total destruction of my credit rating, without which restarting my business would be impossible, even if I could restart it at age 70.
12. Lost Livelihood and Value. As repeatedly stated, the illegal seizure and shutdown of my business left me with no source of income other than my meager Social Security, too little to live on. I’ve now been without an income from my business for four years, representing four years of lost earnings.
At the time of the shutdown, I had a print inventory valued at $1.7 million at my wholesale prices. My images were on the cutting edge of art trends and tastes, many now passé. Consequently, the value of my inventory today may be less than the cost of my original investment. The value of my labors and investments is essentially naught today. A modest but very successful interstate and international art enterprise is now dead and gone, thanks to Tingle, Ken Traweek, McWhorter, Colee, Reynolds, Bolin, et al. Destroying it did nothing for them; it only hurt me, which was the intent.
Proprietary Injuries Suffered by My Loss of Business: Lost income and livelihood, loss of investments, lost value of business and inventory, lost contracts and publishing rights, loss of benefits of marketing and advertising, loss of a significant customer base, loss of business reputation, destroyed credit rating, lost investments in office furniture and equipment, loss of vehicles used in business, and lost investments in unfinished works-in-progress.
Assessing Impact on Interstate and Foreign Commerce: Setting precise figures is made difficult not only by the problem of calculating my personal losses, but each print sold would be resold two or three times – from wholesaler, to retailer, to end customer, along the way generating framing business for wholesale and retail framers. Therefore, for every $10 in my sales, my prints would typically bring in $75 to $125 additional dollars for other merchants along the marketing chain. The affect of the death of my business on interstate and international commerce is substantially greater than that of ninety percent of the RICO-Hobbs Act convictions I’ve encountered in my research. It goes well beyond de minimis.
Tingle’s illegal lockout, the non-jurisdictional follow-up actions of Judges Reynolds and Bolin, and animosity toward me on the part of other defendants were the proximate cause of the destruction of my business and livelihood.
This should suffice to identify the nature and scope of my financial injury and its affect upon interstate and international commerce.
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§1.2.6.3 Mail and Wire Fraud
In the use of mail fraud or wire fraud to further or carry out a scheme to defraud, Congress and the courts have intentionally maintained an expansive view of what constitutes a violation of the mail and wire fraud statutes. In so doing, courts have claimed to be following legislative intent, concluding that: “Congress has decided not to define ‘scheme or artifice to defraud’ because the range of potential schemes is as broad as the criminal imagination.”[167] The Tenth Circuit has said, “A scheme to defraud focuses on the intended end result and affirmative misrepresentations are not essential….”[168] Hence, the criteria by which mail and wire fraud are to be measured are the intended aims of the deception. Was fraud involved? Were the communications intended to deceive or mislead? Were pertinent facts withheld so as to create misunderstanding? Were the statements made factually untrue? Was there intent to subvert the law? Was a conspiracy involved? Was the communication made use of for fraudulent purposes? These are just a few of the questions one could ask about mail and wire fraud violations.
Kenneth E. Traweek: Mail Fraud
1) Approximately a week after my father's death on May 18, 1999, my mother learned of Ken Traweek's role in a scheme to defraud her of her estate. Consequently, on or about May 27, she had me set up an appointment with attorney Hugh Henderson in order to determine what she could do to protect her assets. Mother met with Henderson on June 1, 1999, at which time she canceled a 1994 Durable Power of Attorney previously given to Ken. In accordance with Henderson's instructions, I sent a photocopy of the canceled Durable Power of Attorney to Ken by certified mail together with Henderson's instructions that Ken return the original to him or to mother. The confirmation of delivery receipt came back signed by Ken Traweek and dated June 3, 1999. That Ken received a photocopy of the canceled Durable Power of Attorney in his name is, therefore, beyond refute. A photo-reduced copy of that cancelled Durable Power of Attorney and a photocopy of the certified mail return receipt signed by Ken are attached as Exhibits B & C.
The original of Ken's Durable Power of Attorney was never returned as requested. He was obviously irate at the prospect of losing control of what we would learn later had been a long-running scheme to divert most of my parents' assets to himself, his wife Helen, and his sister Joyce Burbank.
On June 14, 1999, Ken Traweek filed an Emergency Petition in the Probate Court of Jefferson County to have my mother, Frieda Eversole, declared mentally incapacitated and thereby deprive her of any legal right to protecting her estate. Attached to Ken's petition was a non-cancelled copy of his no-longer-valid Durable Power of Attorney. Based upon it, he claimed to be mother’s legal representative and asked the court to appoint him mother’s legal guardian and conservator. In a revised version of his petition, submitted a few days later, he would ask instead that his friend, James Tingle, be appointed guardian and conservator. In this and every subsequent court action against us, Ken Traweek would attach a fraudulent, non-cancelled copy of his invalid Durable Power of Attorney in support of his actions.
Inasmuch as Ken was in receipt of his canceled Durable Power of Attorney as of June 3, 1999, verified by the certified mail return receipt bearing his signature, each and every subsequent use of that void Durable Power of Attorney constituted an act of fraud. Pending discovery, the precise number of separate mailings which may have contained the void Durable Power of Attorney, the number of persons receiving it, and the dates of mailings are unknown to me.[169] A reasonable guess would put the number at about three dozen mailings, perhaps more, each of which would constitute a separate predicate act of mail fraud. The fact that many or most of these mailings were likely done by attorneys Tingle and McWhorter does not alter their fraudulent character, nor does it remove Ken Traweek from the role of instigator of the fraud. Given the initial fraud, one may analogize from a row of dominos: by tapping the first domino the entire row is consequently knocked down. Cause and effect are directly related. In this case, what begins as fraud continues as fraud. Nor is the chain of causation broken by the intervention of other perpetrators. Ken Traweek bears responsibility for every fraudulent use of his cancelled Durable Power of Attorney, including every mailing which may have contained it.
2) A second example of mail fraud by Ken Traweek consists in the use he made of a group of letters written by my mother, Frieda Eversole, to Ken and Helen and to Ken's mother, Elsie Traweek. Mother was so angered by all the court actions against her and by being locked out of her own condo and denied access to her own possessions that she talked for months about writing to the Traweeks and telling them how she felt about them. For a long time I discouraged her saying, "It won't do any good. They could care less how you feel about them." Mother would always reply, "Maybe not, but it would certainly make me feel better." Finally I said, "If you want to write them, write them." She did. At age 91, all she could do was vent her anger, and I saw no harm in it if it made her feel better. After all, she’d been put through hell by them and had everything she owned taken from her. An example of these letters is appended to this pleading as Exhibit I along with a typed transcription for ease of reading.
Ken and Helen Traweek gathered up mother’s letters and went to the FBI where they met with Birmingham FBI agent, Alton Sizemore, Jr. They alleged that mother had “advanced Alzheimer's” and would have been wholly incapable of writing such letters. They alleged that I had written the letters and requested an FBI investigation and DOJ prosecution of me on the basis of that allegation. An investigation was undertaken by Mr. Sizemore. I was unaware of it until I learned of it quite by accident from a Nashville attorney approximately a month into the investigation. A copy of a letter from Sizemore to Roger May, a party unknown to me, and dated January 11, 2001, was faxed to me.[170] The day I learned of the investigation, I called Mr. Sizemore. It took three or four calls to reach him. When I did, we talked at considerable length. According to Sizemore, what Ken and Helen had told him was a far cry from the truth. Sizemore also talked with mother for several minutes. From what I could determine from their conversation I gather that Sizemore told her Ken and Helen had alleged that she was “so mentally incompetent” that she could not have written the letters herself. Mother replied, "I'm smarter than they are. I have a college education and they don't. I ran my own business for many years and managed all the finances throughout my marriage. I wrote the letters because I'm mad as hell, and I'd do it again! Those are my letters. My son had nothing to do with it." When Sizemore asked to speak to me again, he said, "I'm completely satisfied that your mother wrote the letters, and I see no reason to continue this investigation. After making a few notations, I will close out the file." He then asked, “What can you tell me about Helen Traweek?” I said, “Very little. I know only that she worked for a realtor for a while, then for a landscape company in Atlanta. Beyond that, not much.”
Mother's letters to Ken and Helen Traweek and Elsie Traweek[171] were set to them via the United States Postal Service. The attempts by Ken and Helen to fraudulently misrepresent the letters to the FBI as mine for the purpose of seeking a criminal prosecution of me represents still another scheme to defraud which relies upon communications via the United States mails. Under RICO, mail fraud applies not only to items mailed out by an individual, but also to items received through the mail which are used for purposes of fraud in carrying out elements of a RICO scheme.
I hereby alleged that Kenneth E. Traweek has engaged in multiple predicate acts of mail fraud for the purpose of defrauding Frieda Eversole and Finley Eversole and that these acts constitute racketeering violations under §1962(c)&(d) and mail fraud under §1341.
Helen Traweek: Mail Fraud
Helen Traweek committed two of the most serious counts of mail fraud against us.
1) After Ken Traweek was notified of the cancellation of his Durable Power of Attorney by mother, and prior to filing an emergency petitioned to have her declared incapacitated, Helen and Ken went doctor-shopping for anyone who would provide them with a letter alleging that mother was mentally incompetent and in need of a guardian and conservator to manage her welfare and affairs. Two physicians who informed me they were approached by Ken and asked to write letters alleging that mother suffered from severe dementia and was not being well cared for by her son were Dr. Jacob Neighbors and Dr. Amalija Fairbanks. Both physicians knew these claims to be decidedly untrue and refused his request. Helen Traweek then approached Dr. Bruce Key with a similar request and succeeded in eliciting such a letter, dated June ?, 1999, which Ken then used as a pretext for his “emergency” petition.
Fraudulent use was made of, and fraudulent claims made on behalf of, Dr. Key’s letter.[172] These are addressed in detail elsewhere. The crucial point here is that Helen Traweek solicited a letter through the United State mails for the sole purpose of using it in the furtherance of a racketeering scheme to defraud Frieda Eversole of her estate and assets. As such, it violates the mail fraud act, §1341, as well as RICO’s §1962(c)&(d). Dr. Key’s letter would in turn be used by Judge Reynolds as the rationale for the Probate Court of Jefferson County to institute proceedings aimed at declaring Frieda mentally incapacitated, seizing control of her assets, and turning them over to James Tingle with whom Judge Reynolds had a long history of exploiting the financial assets of the elderly. Helen’s solicitation of Dr. Key’s letter set in motion the racketeering scheme which is the basis of this litigation – a scheme which has also resulted in numerous violations of our due process and constitutional rights.
2) A second and equally serious, perhaps more serious violation of the mail fraud act concerns an ex parte letter written by Helen Traweek to Judge Reynolds, dated February 25, 2000. As discussed in some detail below, this letter was used as the pretext for an unscheduled probate court hearing on March 2, 2000, resulting in gross violations of our due process rights and irreparable damage to all future defenses and appeals. Here, I wish to address the fraudulent claims and allegations contained in this ex parte letter. Please note that the existence of this letter was never made known to us or to my attorney, Bob Kracke, until after our appeal to the Alabama Supreme Court had been denied.
The following are among the statements contained in Helen’s letter:
1. "...the fact that her son, Fin, has not allowed any family visits following your [Judge Reynolds'] order of October 29th."
2. Re a "birthday luncheon" scheduled for November 7th -- "at the last minute, she [Frieda] was not allowed to come."
3. "...she has yet to be allowed to be with Elsie Traweek..."
4. ...Ken and I have had only five (5) visits with her on our assigned days, each time with great difficulty due to Fin's objections."
5. "...although a special Christmas dinner was planned for her there on Wednesday of the week of Christmas, Fin didn't allow her to go."
6. "On that last Sunday afternoon, when I went up at 3:00 to get her, Fin had her closed up in the back room, wouldn't allow her to come out, although she tried to do so one time, and he said that she didn't want to be with us. When I wanted to speak to her myself, he wouldn't allow it. Ken came up and when he took exception to Fin calling him a liar, Fin threatened to kill him."
7. "On January 2, Fin told me how he had designed a combination of medications for Aunt Frieda's leg pain, which included a narcotic not prescribed for her!" et seq.
8. "Judge Reynolds, Aunt Frieda is suffering the loss of her husband of so many years, and also suffering a separation from family and friends, who have tried to communicate by phone, unsuccessfully. Her enjoyment of others is not being allowed her. Will you please find a way to make her life as enjoyable as it can be?"
Given the fraudulent as well as the secretive ex parte nature of this letter, such statements demand a response. Responding by corresponding number:
1. Not once did I ever interfere in any manner whatsoever with visits between my mother and any of the Traweek family. Given their court actions against her, mother did not want to visit with them. But Kracke informed me that if I did not force her to go along, Reynolds might remove her from her home and institutionalize her. Consequently, I fully cooperated and never once interfered. All claims by Ken and Helen to the contrary, and there have been many, are absolute fabrications on their part -- I’m quite sure by design as it bolstered their other malicious allegations against me and served their objectives.
2. Mother refused to go despite my trying for two hours to convince her she had to go, saying, “If you don’t go, they’ll find some way to use it against us.” She said, “I don’t care. I’m not going. I shouldn’t say this, but I wish Ken and Helen would have an accident and get killed. Then they couldn’t bother me any more.”
3. More lies! We even arranged once to go with Ken and Helen to visit Elsie. They were to pick us up in the lobby of the condo at 6:00 p.m. When we went down to meet them, Helen’s van was gone. We waited in the lobby half an hour, but they never showed up. We remained dressed in our condo the entire evening but heard nothing from them. The next day Elsie called me and swore at me for “not allowing” mother to visit her. Ken and Helen had gone without us and told Elsie, “Fin took his mother and left for the evening so she wouldn’t be there when we came to pick her up. He won’t let her come see you.” A few days later Elsie called mother and was so hateful and abusive to her on the phone that mother was reduced to tears. She has wanted nothing to do with Elsie since. It should perhaps be noted that there are bad feelings between Elsie and my mother dating back more than fifty years[173]; for most of a decade neither family spoke to the other. I wasn’t living in Alabama at that time and wasn’t part of the family feud. It seems that Ken and Helen are always scheming and looking for ways to create adverse situations they can turn around and blame on us, on me especially. I’ve done nothing to them; I’m simply in the way of their scheme.
4. However many visits they had, that’s how many times they chose to visit. When they stopped coming, it was of their own volition. Not once did I ever say or do anything to impede their visits – their statements to the contrary notwithstanding.
5. This is another of those cases where mother refused to go. She had been invited “for dinner.” Not a word was said to either of us about it being “a special Christmas dinner.” When it came time to get mother ready, she said, “Aren’t you going to dress?” I said, “No. I’m not going.” She asked, “Why not?” I said, “I’m not invited. The invitation is for you only.” Mother said, “If they aren’t going to invite you, then I’m not going. I don’t like them anyway.” After that, nothing would budge her. I was forced to call Helen and tell her mother wouldn’t come, but it was not of my doing.
6. Helen’s remarks are a complete fabrication. First, I’ve never prevented my mother doing anything. Mother went into an adjacent room of her own choice, and the door was open the whole time so she could hear everything. As it worked out, that was a bit of a blessing. She didn’t witness what happened next. Without the slightest provocation by me, Ken suddenly assaulted me, charging me, swinging his fist at my face, and yelling, “I’m going to knock every one of your goddamn teeth down your throat.” I didn’t call him a liar,[174] and I never raised my voice or my hand. I was too busy trying to get out of his way. Ken is a big man (about 6’3”) with a vile temper who outweighs me by at least 70 to 80 lbs. Mother overheard Ken’s attack on me and became hysterical. No sooner were Ken and Helen out the door than mother began screaming and crying, saying over and over, "I can't live through any more of this. I'm going to kill Ken. I'm going to kill myself. I can't stand it any longer. I wish I had died instead of your dad." It was at this point that I knew I had to get mother out of Alabama. It was clear she could not survive much more of this. Helen’s account of the events of that afternoon is spurious and untrue.
7. More fabrications. Mother had had leg pain for years before I undertook her care. I remarked to Helen that I had observed that when two of her prescriptions – Darvocet and Amitriptylin – were taken at the same time, her leg pain appeared to subside. When I commented to that effect a few days later to Dr. Barnes, mother’s PCP, he said, “That’s an astute observation, and you are right.” And he ordered me to continue in that fashion. When we moved to Nashville and I took mother to a neurologist, Dr. Clinton replaced the Amitriptylin with Neurontin, adding that “combining it with Darvocet is the best combination there is for this kind of neurological pain.” Mother has had no leg pain whatever for the past four years. As usual, Helen twisted my remarks to fit the scenario she and Ken were constantly trying to create, namely, that mother was not receiving proper care and her welfare was in danger under my guardianship.[175] But subsequent facts proved my observations to be right on target.[176] Such fraudulent allegations were used against me time and again in and by the probate court. However, all of mother’s medical records support my statements, not theirs.
8. More lies! In the nine months prior to our move to Nashville on February 29, 2000, mother received about a hundred visits from nineteen different friends and neighbors. Including Ken and Helen. Mother has always been free to see anyone or talk to anyone any time she wished, and every one of her friends and neighbors will so testify. In fact, I encouraged them to visit as often as possible. The problem was that because of the way the Traweeks had treated mother (note her remarks about them scattered throughout this pleading), she did not want to talk to them most of the time. When Ken and Helen would take her out on court-ordered visits, mother would come home saying, “I was on my best behavior the whole time. I’m afraid of what Ken and Helen might do to me if I ever made them mad.” Or, “Can’t we move to another state so I don’t have to visit with them? I’d move to Africa if it would get me away from Ken and Helen.” Many people are witnesses to mother’s statements of ill will toward the Traweeks. My accounts of her animosity toward them don’t rest on my word alone.
Sorry for all the detail, but the law does require “particularity.” From my responses you can see how Helen’s ex parte letter to Reynolds was carefully calculated to mislead and create as much prejudice as possible, especially against me as I am the sole obstruction between them and mother’s assets. Ken and Helen are willing to say or do anything to get me out of the way, and have tried. Elsewhere, I will deal with some of the testimony from the March 2, 2000 probate court hearing called to address Helen’s statements cited above, and their damaging affects will be readily apparent.
Helen Traweek’s ex parte letter to Reynolds was clearly intended to defame and defraud. It proved to be one of the most crucial acts of their RICO scheme and had devastating consequences for us. As a letter sent through the United States mails, it clearly violates the mail fraud act, §1341, as well as §1962(c)&(d).
3) Third, under the discussion above of Ken Traweek’s mail fraud, I cited Ken and Helen’s attempt to get an FBI investigation and DOJ prosecution of me for letters written by mother. According to Alton Sizemore Jr., Helen was a party to this effort, and the mail fraud allegation against Ken applies to her as well.
Daniel T. Hull, Jr.: Mail Fraud
Daniel Hull’s mail fraud acts date back to 1994 and 1999 and his legal services on behalf of my parents, Finley P. Eversole and Frieda Eversole, and to his associations with Kenneth E. Traweek and Helen Traweek.
According to Hull's own testimony before the Probate Court of Jefferson County on October 29, 1999, he created Last Wills in the names of both my parents. If true -- and such a Will in my father's name has been found to exist -- it presents three problems:
1) Hull never sent copies of these Wills to my parents. In fact, Hull refuses to this day to allow my mother, her attorney Hugh Henderson, or me, her son, to see a copy of the Will allegedly created in her name. Yet Tingle, McWhorter and the Traweeks are all said to have copies of such a Will.
2) My parents discussed their Will, intentions, burial plans, finances, Trust and Annuity Funds, etc. with me on numerous occasions but never once made reference to any Wills created for them by attorney Hull. Shortly after selling their Altadena property around 1990 for $600,000, my parents created new Wills, and it was always to those Wills that they referred in their conversations with me. The problem is that I don’t know who created them, and neither mother nor I can account for their mysterious disappearance. We know only that they existed. The unexpected appearance of a Will in my father’s name, a Will we did not know existed, a few months after his death containing provision altogether different from anything either of my parents ever stated as their intensions is more than curious. Why was my father never provided with a copy? Why did Ken and Helen Traweek have a copy? Why was its existence kept secret for five years? Why are its provisions completely different from what dad himself told me his Will contained? If my mother never requested or knowingly signed such a will, what proof is there that my father was not similarly deceived?
3) According to Hull’s court testimony on October 29, 1999, he alleges that he created identical Wills in both my parents’ names. Having seen the one in my father’s name, it is an absolute certainty that my mother, Frieda Eversole, never requested such a Will, had no knowledge of its creation, and never knowingly signed such a document. This might explain Hull’s absolute refusal to allow her to see it. I can confidently say there is not one possibility in a trillion that my mother initiated or knew of this Will, and my certainty on this point is such that I would wager life itself against such a claim. If such a Will does indeed exist, there is no question but that fraud and deception was involved.[177] If mother was deceived, what evidence is there that dad was not likewise deceived? Hull’s word is unreliable.
Before taking up the question of fraud by attorney Hull, other aspects of his behavior require examination. My late father created a Trust to provide for my mother's needs after his passing. According to my father, the idea for the Trust did not originate with him but with Hull. Moreover, I know from letters I saw that Hull pressured dad into creating the Trust. Given the declining state of my father's health at the time, he asked Ken and Helen Traweek to serve as his go-between with Hull in handling the execution of the Trust. The Traweeks lived on the floor below my parents in the same condominium building. My parents had helped them in many ways over the years, so dad’s request for their help was neither inappropriate nor a major inconvenience for them. It never occurred to any of us that Ken and Helen would take advantage of the situation to seek to enrich themselves at the expense of my parents’ estate.
Once the Trust had been drawn up, it was mailed to dad for his signature. I know this because I picked up their mail each day as I came in to prepare their lunch and dinner. I did so the day the Trust arrived in the mail. Dad opened the envelope in my presence, took out the Trust document, saw that it was quite lengthy (some 12 or 13 legal-length pages), and moaned, saying, “I cannot read through all this!” Without reading a word of it, and assuming all had been done in accordance with his instructions, he flipped to the back page and signed the Trust, then picked up the phone and called Ken and said, “Ken, the Trust is ready for you to pick up.” Less than two months later, about a week after dad’s death, I found an envelope from Hull on dad’s bedside table, buried beneath all his medications, which had never been opened. On opening it, I found a copy of the executed Trust. I was stunned when I read it as it was nothing like what dad told me he had created. When I told mother what I’d found, she asked me to read it to her in its entirety. When I finished, mother said, “Not once in our entire married life did you dad or I ever discuss or even think of such a thing! We’ve never talked about leaving anything to Kenneth, Helen or Joyce. It was always our intention that if we had anything left, it would go to you. Ken did this. Ken deceived your dad!” That was when mother asked me to find her an attorney and set up an appointment to see what she could do about the Trust.
In his testimony before the Probate Court of Jefferson County on October 29, 1999, Hull stated that he had brought the Trust to the condo in person and witnessed my father's signature. As the notary for the signature, I assumed Hull was protecting himself for an illegal act since it is illegal to notarize a signature you haven’t witnessed at signing. However, Hull went on to say that I, Finley, the son, was nowhere around at the time. He then proceeded to make false and defamatory remarks about me. When I finally had a copy of the transcript from the proceedings of that day, I counted twenty-two instances of perjury in Hull’s testimony, eighteen of which are within my immediate personal knowledge. Therefore, as far as I’m concerned, Hull's propensity for lying is a well- established fact.
When you add to this the fact that Hull’s defamatory remarks about me employ virtually identical words to those used by Ken and Helen Traweek, with whom Hull had many contacts, the collusive and conspiratorial character of Hull's courtroom testimony and the questionable makeup of the Trust which makes Ken and Helen Traweek and Joyce Burbank the primary beneficiaries of seventy-five percent (75%) of my parents' assets, raises compelling doubts about Hill's honesty and integrity.
Now I can address the issue of Hull’s fraud. Not only do the terms of the Trust flatly contradict what both my late father and my mother told me were the terms of the Trust they were creating for mother’s welfare, but the notarization by Hull of a signature he had not witnessed on a document which had been mailed through the United States Postal Service, and which involved assets of $311,000, followed by a second mailing of the same document, now with an unlawful notarization, constitute fraud using the U.S. postal services. This fraud constitutes predicate acts of mail fraud under §1341.
In an early attempt to sort all of this out, through Bob Kracke I got a subpoena to compel Hull to provide me with copies of all documents, files, records, and communications having anything to do with any documents created or alleged to have been created by Hull for or on behalf of my parents, including anything connecting the role of the Traweeks to any transactions. Hull refused to comply with the subpoena! When all of the forgoing is taken together, there can be little doubt that Hull has something to hide!
Given Hull’s questionable legal representation of my parents; his role in pushing my father into the Trust agreement; his questionable ties to the Traweeks; the numerous problems surrounding documents he created; his extreme reluctance to allow related documents, files and records to be examined by us; his known perjury and unlawful acts; his noncompliance with a subpoena; and the fact that documents created by him in my parents’ names are linked to a major scheme to defraud and are the origin of all our problems with the Traweeks, the Probate Court of Jefferson County, and the court-appointed conservator and guardian ad litem, I allege that Daniel Hull is a co-conspirator in an association-in-fact enterprise engaged in racketeering activities aimed a defrauding the estate of Frieda Eversole and any potential inheritance intended for Finley Eversole and that Hull is therefore in violation of §1962(c)&(d).
James M. Tingle: Mail Fraud
Tingle’s mail fraud can be said to begin with his diverting of all my personal and business mail to himself. When I discovered what he’d done and changed it back, he again diverted it to himself so that my business activities were disrupted and payments from outstanding accounts never reached me. What became of those payments is unknown to me to this day.
Given Tingle’s extreme secretiveness and refusal to respond to any requests, relinquish any documents, provide any accountings, or otherwise account for any of his actions is precisely what has made his conservatorship a “black box” operation from the outset. In this instance discovery must be allowed and, if necessary, compelled by the federal court. That mail fraud has occurred is a virtual certainty, but details are unavailable to me. However, here are two examples:
1) Tingle sought and got a Summary Judgment against me in Judge Rogers’ court based on fraudulent claims that I had enriched myself with financial assets from my mother’s estate. In order to do this, he used a false claim as to the total of the assets in an Annuity, which he then got Judge Rogers to declare “valid” without any review of facts or evidence. Tingle, or someone to whom he gave access to our condo during our twenty-six-month lockout, removed all our financial records, which included a complete and accurate accounting of my mother’s assets and my handling of them prior to Tingle’s appointment as conservator. Those records would have refuted Tingle’s claims. Their disappearance is no accident!
Tingle’s suit of me for alleged self-enrichment from assets belonging to my mother, Frieda Eversole, is so rife with misrepresentations of facts, fabricated lies, distortion of evidence, omission of references to courtroom discussions and judicial orders, disregard for statements made by Dick Parr, (the account rep in charge of the Annuity), seizure and probable destruction of our legal and financial records, his own actions in direct disregard of Judge Reynolds’ instructions, and his willful subversion of my efforts to comply with those instructions that naught remains but Tingle’s lies.[178] He had had in his own possession for months the very monies for which he was suing me! The most profoundly disturbing, I might even say shattering, aspect of our experience with Alabama’s legal and judicial system is the realization that crime and corruption can operate more effectively and freely within the legal system than outside it.[179] I’ve seen the Mafia operate up close and personal, and I’ve seen their operations taken down by state attorney generals of integrity. But who halts people like Tingle and his friends? They use the law and courts for their own ends, and without the intervention of the federal courts it will go on ad infinitum. Thank God that ultimate justice is His.
As there were many transmissions of documents and interstate financial transactions via the United States mails, and as Tingle has knowingly misrepresented these in his suit of me, which he won by way of a Summary Judgment fraudulently granted by Judge Rogers, each and every document which played any part in Tingle’s fraudulent claim, even though entirely legitimate in its own right, was perverted for fraudulent purposes. Given all the people who played a part, directly or indirectly, in denying us access to (and the disappearance of) our records, our due process rights were clearly subverted, and Tingle’s litigation is itself an act of fraud predicated in some measure on acts of mail fraud. Given effective discovery, it may eventually be possible to disentangle the web of corruption woven by Tingle.
For the record, let me account for the monies from the original Annuity that were placed in the savings account. When Tingle was appointed conservator on November 1, 1999, he was ordered by Judge Reynolds to provide mother with $1,100 per month in addition to her Social Security for living, healthcare and other expenses. Tingle never complied with that court order. Instead, he immediately denied mother access to all of her funds and by January 1, 2000 had also taken away her Social Security, leaving her with zero income!!! Tingle cut off all financial means essential to mother’s survival and welfare.
In addition to using income from my business for our living expenses, we began tapping into the savings as well, though modestly. We also took out $2,000 for attorney fees to appeal Judge Reynolds’ appointment of Tingle to the Alabama Supreme Court. Once we realized we had to get out of Alabama, we took two three-day trips to Nashville in February, the first in order to decide whether we would like living in Nashville and to evaluate healthcare resources, desirable living areas, etc. Having decided Yes, we made a second trip back a few days later to meet with an attorney, Tom Binkley, and search for an apartment. Both trips involved three-night motel stays, gas, food, etc. We put down another $2,000 for attorney fees in Nashville to hire Tom Binkley to handle getting our case moved to Tennessee. We put down $1,310 (security and a month’s rent) plus sign-up fees to rent an apartment on February 28, 2000, plus signing up for utilities. We spent around $500-$600 in conjunction with the move itself, plus monies to rent a storage space in Nashville where we could store items stored in Alabama. Because Tingle locked us out of our condo and denied us access, we had to purchase dishes, cooking utensils, clothing, minimal furniture,[180] etc. When all was done and we were finally settled in Nashville, in March, 2000 we had about $5,000 of the original sum from the Annuity remaining. Given that Tingle did not provide mother with a single cent of her money the first eighteen months of his conservatorship, or a single cent for living expenses until the fortieth month of his conservatorship, we struggled desperately to survive. The remaining $5,000 went for food, rent, utilities, healthcare, and mother’s prescriptions and only lasted three months. These are the monies James Tingle alleges that I took from mother’s estate for my self-enrichment! Unlike Tingle, I don’t exploit other people. The Summary Judgment Tingle got via Rogers is but an attempt to make me pay for mother’s care needs while he exploits her assets.
So the issue now is the origin of the figures Tingle used to arrive at his erroneous assessment of mother’s assets. If these came from documents received via the United States mails and formed the basis of his fraudulent litigation against me, then information received by mail, whether intentionally fraudulent or not, was used for fraudulent purposes. Tingle was told repeatedly that I had not taken or profited from the $13,000, and I repeatedly demanded access to our financial records in the condo, which he and Judges Reynolds, Rogers, and Bolin all denied. Those records showed the funds withdrawn and establishment of a savings account with them. Tingle was desperate to find something, anything, he could pin on me. Since all the financial records pre-Nashville where in the condo when we made our hasty exit on February 29 , 2000, no complete defense against Tingle's fraud was possible without them. Therefore, Judge Rogers’ issuance of a Summary Judgment without granting my request for access to my records merely aided Tingle’s fraudulent claim. However, the point is that documents which can reasonably be assumed to have traveled through the United States mails were used by Tingle for fraudulent purposes.
Therefore, I allege that James M. Tingle used financial statements involving the assets of Frieda Eversole and received by way of the United States mails as the basis of a deliberate act of fraud against Finley Eversole. If verified through discovery, this would constitute a predicate act of mail fraud in violation of §1341 as well as RICO’s §1962(c)&(d).
2) I further allege that Tingle, through his attorney, McWhorter, was instrumental in all legal actions and mail communications by and on behalf of Ken and Helen Traweek which made use of Ken’s cancelled Durable Power of Attorney for fraudulent purposes. Predicate acts of any one conspirator in a RICO association-in-fact enterprise are attributable to all co-conspirators. In this instance, however, based on statements made by McWhorter in his response brief to our appeal to the Alabama Supreme Court, I believe that both Tingle and McWhorter knowingly conspired with Ken Traweek to make use of his void Durable Power of Attorney at every opportunity and, consequently, that each and every act of mail fraud resulting from that decision is attributable to James Tingle and Doug McWhorter as well.
3) Throughout the forty-four months of his conservatorship over the estate of Frieda Eversole, Tingle refused to provide any accounting of her assets or disposition of income as required by Alabama law and requested many times by us. However, when Loren Sattinger, manager of the Eversole Trust for Citicorp, informed Tingle that no further funds from the Trust would be released to him without a financial accounting of the use of the funds and assets of the estate, Tingle produced a so-called accounting. I was not a direct recipient of this accounting, but Sattinger forwarded a copy to me. On review, I found it incomplete, erroneous in part, and fraudulent in part – especially parts claiming “reimbursement” to me for funds expended on my mother’s behalf, reimbursements that never occurred. No supporting documentary evidence accompanied this alleged accounting, therefore making verification of its claimed expenditures impossible.
Given the highly questionable nature of this dubious financial accounting by Tingle, and the fact that it was sent to Loren Sattinger via the United State mails, I allege that this “accounting” constitutes still another predicate act of mail fraud on the part of James Tingle in violation of §1341. And as its primary purpose was to insure the continuing flow of funds from the Trust to Tingle and Hand Arendall, use of which he refused to account for, I allege this mailing was intended to play a part in the overall RICO scheme in violation of §1962(c)&(d).
N. Daniel Rogers: Mail Fraud
In responding to James Tingle’s suit of me for the monies (accounted for above) which he fraudulently alleged I took from mother’s estate for my personal self-enrichment, and in response to his motion before Judge N. Daniel Rogers, Circuit Court of Jefferson County, for Summary Judgment in that suit, I provided a sworn affidavit stating unequivocally that I had not taken or enriched myself with the monies at issue as Tingle alleged. I provided detailed explanations of the use of the monies and legally sound arguments against a motion for Summary Judgment. Nevertheless, Judge Rogers granted the motion for Summary Judgment in willful denial of my due process rights.
His sole alleged rationale for doing so was that I had failed to provide him with a sworn affidavit and that, without it, none of my statements in court were admissible. The problem is that even as Judge Rogers made these assertions, the Priority Mail envelope addressed to him in my handwriting, with my return address, lay beside him on his bench in my full view. Partly scattered beneath it I could see the documents which I mailed him, which included my sworn affidavit. Moreover, the Priority Mail packet containing them was sent by certified mail, and I have in my possession the confirmation of delivery receipt signed by “R. Harlan” and dated “11/26/01” as proof of receipt. That my affidavit and supporting documents were indeed received and in Judge Rogers possession prior to and at the hearing is irrefutable on the evidence.
Under these circumstances, granting Tingle’s request for a Summary Judgment was a clear violation of law and my due process rights.
In denying that he had received my Priority Mail packet containing my affidavit and supporting legal documents, and relying on that denial as his sole reason for subverting my legal rights and granting Summary Judgment on a fraudulent claim, Judge Rogers committed a predicate act of mail fraud in violation of §1341, a RICO violation under §1962 (c)&(d). Why he would engage is such an obvious denial of the truth and grant judgment on Tingle’s fraudulent claim unless there were some untoward understanding between them is difficult for me to comprehend. But I allege the judgment itself to be an act of fraud in support of an act of fraud, aided by an act of mail fraud. Obviously mail fraud is not a judicial act.
Donald L. Colee, Jr.: Mail and Wire Fraud
As the Alabama court-appointed guardian ad litem for my mother, Frieda Eversole, Donald Colee is to the welfare of his appointees what a hunter's trap is to the welfare of the prey it ensnares. Not once has Colee ever acted to protect or benefit my mother in any way whatsoever. In Colee, the Traweeks have the perfect ally, one who could be relied upon to side with and supported whatever false statements, spurious claims or fabricated allegations they might make. Colee has never shown the slightest interest in facts or evidence.
When we moved to Nashville, Tennessee and attempted to have our case moved to the Probate Court of Davidson County, the Tennessee court appointed its own guardian ad litem, Mark Walker. Mark came to our Nashville apartment and did an in-depth interview of mother and me. In the guardian ad litem report which he submitted to Judge Clement, his own evaluation of us was altogether positive. Cf. §2.4.6 for his remarks. However, he recommended to Judge Clement that the Probate Court of the Davidson County not accept the transfer of our case to Tennessee.
This negative recommendation was predicated entirely upon Walker’s conversations with Colee and Colee's remarks concerning me. I am aware from Walker's statements to me that he had telephone conversations with Colee as well as letter communications. Walker refused to divulge to me the content of either. Through discovery and interrogatories I should be able to get more detailed information about their communications, including relevant dates, etc.
Colee has engaged in numerous fraudulent and vicious comments about me in Alabama court proceedings, and it can be presumed that whatever statements he made to Mark Walker, in phone conversations and by mail, are of like nature. Walker's negative recommendation implies as much, being predicated upon the recurring theme in Alabama that if granted conservatorship of my mother’s estate I would “squander its assets.” Nothing exists either in my personal history or that of my relations with my parents or handling of mother’s monies to support such an allegation. Therefore, we allege that Donald Colee has engaged in both mail fraud and wire fraud predicate acts in violation of §1341 and §1343 by using the United States mails and interstate wire services for the purpose of conspiring against our rights to have our case transferred to Tennessee. Colee has used the mails and wire services to making faults, fraudulent and malicious statements of an untrue and defamatory nature about me in support of a RICO scheme aimed at retaining all our assets in Alabama under the control of the Probate Court of Jefferson County and the court-appointed attorneys. Such violations also constitute racketeering acts under §1962(c)&(d).
Douglass McWhorter: Mail Fraud
Though McWhorter is one of the worst offenders, using the United States mails to engaged in the circulation of fraudulent documents and false statements aimed at defrauding Frieda Eversole and causing predicate injuries to Finley Eversole, his violations are essentially identical to those who of Tingle, Ken and Helen Traweek and Joyce Burbank. In a clear-cut case of conflict of interest, McWhorter represented Tingle and the Traweeks in all of the litigations against Frieda Eversole and Finley Eversole. In doing so, he made extensive use of Ken Traweek’s voided Durable Power of Attorney. He also willfully and knowingly misrepresented the validity of that Power of Attorney in his response brief to our appeal of our case to the Alabama Supreme Court, which may seriously have jeopardized that appeal, which was denied. He may also have assisted Helen Traweek vis-à-vis her mail fraud violations. In any event, McWhorter is intimately associated with virtually all of the mail fraud predicate acts from which we have suffered racketeering injuries. I therefore allege against Douglass McWhorter multiple counts of mail fraud violation under §1341 and RICO violations under §1962(c)&(d).
Joyce Traweek Burbank: Mail Fraud
Considering that Joyce Burbank has never carried on a single conversation with me in her entire life, knew nothing of my education until she learned of it in open court, knows absolutely nothing about my career or achievements, has never met any of my friends or associates, has seen me with my parents only at occasional “family gatherings,” and has no comprehension of my thinking, values or beliefs, she scarcely qualifies as an expert on my life. Perhaps fabricating delusional stories about other people comes with the territory of being a perpetual gossip. In any event, every single claim and allegation made in Joyce's letter addressed to Hugh Henderson, dated August 31, 2003, is a fabrication, including her claim that Frieda gave Joyce her mother's Bible. I was present when Joyce asked to borrow it and present when mother loaned it to her saying she could “use it” as long as she needed. It was never a gift, nor ever intended to be. My mother was one of six children, yet the only one who, as an adult, devoted time and energy to caring for her mother, especially during my grandmother’s latter years. About fifteen years before my grandmother’s death, she gave her Bible to mother as an expression of love and appreciation for mother’s devotion to her.[181] The Bible was the only thing of her mother's my mother had, and it meant a great deal to her. She has asked for it back, and Joyce's refusal to return the Bible has served only to anger mother toward her. Yet ironically, before all the problems with this family began, I had always intended that the Bible eventually go to Joyce and her children. Now mother is adamantly opposed to her having it and still wants it returned. She has asked me perhaps a hundred times to get it back.
Joyce's letter reveals something I’d suspected – viz., that she was involved with her family from the outset in scheming against mother and me. She alludes to her early contacts with McWhorter and also indicates having written several letters to the criminal court judge containing allegations against me. I’ve seen only one of these. Joyce's letter to Hugh Henderson, containing as it does numerous false allegations and libelous remarks, is wholly in keeping with similar allegations made by her brother and sister-in-law, Ken and Helen Traweek, as well as by attorneys Tingle, McWhorter, Colee and Hull. Given the letter’s tone, I do not doubt that it was Joyce who turned over to McWhorter a letter elicited from me by Elsie Traweek[182] under a promise of absolute confidential. It was accompanied by allegations virtually identical to those in Joyce’s letter. So there are good reasons for believing Joyce may have been the origin of many of the fraudulent allegations against me. Her letter to Henderson is included here and a prime example of the virulent and fabricated assaults upon me, my character and achievements, and my relations with my parents which has served as the entire premise upon which the Traweek family, Tingle and associates, and the probate court have “justified” their actions in seizing mother’s assets and their fraudulent actions against me. See Exhibit H. If lies contained poison, few of these defendants would be alive today. No human being is perfect, but none of the allegations lodged against me to date by any of the defendants in this case are true. If they were, they would have brought forth hard proof, not subjective opinions and wild fabrications in support of their allegations.
As the writer of letters intended to libel me, cause injury, and facilitate conspiracy, and as one who made unlawful use of a confidential letter sent through the United States mail, Joyce Burbank has committed two or more counts of mail fraud. The precise dates and total number of her mailings are not within my knowledge as I was not their recipient. The harm her letters have done is well-documented in probate and other court records.
Her attempts to portray me as a “troubling son” who was “a great disappointment” to my parents, who was constantly in difficulty with people, who “required of [my parents] many thousands of dollars to get [me] out of one financial disaster after another,”[183] who could never make a go of anything,[184] and who was “called home by our family to see after his terminally ill father”[185] – all of it is pure crap! -- “a tale told by an idiot, full of sound and fury, signifying” that Joyce Burbank is somewhere between delusional and psychotic. Her letter is a fabrication start to finish.
Any of my parents’ friends, our neighbors, or any of my friends can verify that my parents and I have enjoyed a lifelong close and loving relationship better than most. Most of my friendships go back thirty, forty, fifty, even sixty years, and all my friends know my parents and the history of our relationship, something the Traweeks obviously do not.
I could take up each of Joyce's allegations one-by-one and address their falsehood in detail, and perhaps this will be necessary in court. Meanwhile, my life, education, friendships, accomplishments, reputation, publications, honors, well-witnessed love for my parents, and listings in biographical publications such as Who's Who in the East, Who's Who in the West, Who's Who Worldwide, Contemporary Authors, and Unity at Mid-Career stand as testimony on my behalf.
As for a letter also dated August 31, 2003, and addressed to Judge Robert Cahill, Joyce fabricates more spurious charges against me – among them claims of “harassment and threat of bodily harm,” saying, “Finley has started again” and “Finley is beside himself with rage.” Outside of seeing them at a distance whenever they haul us into court,[186] I’ve had no contact or communication of any kind whatsoever with anyone in the Traweek family since October, 2000, nor in that time have I responded in any way to their fraud, threats, accusations, ongoing harassment, warrant for my arrest, or various legal actions apart from this pleading. One wonders what kind of hallucinogenic this woman is on. Whatever is happening inside her head, it has no correlation to reality or to me. Joyce Burbank is a greedy, resentful, ill-tempered individual who, like other members of her family, enjoys causing suffering to others. For as long as I have known the Traweeks they have been gossips and busybodies, and nothing would please mother or me more than to have all of them out of our lives forever. It is they who harass us, not the other way around. I’ve tried every means I know to end their relentless war against us, but to no avail. I hope this action succeeds.
For purposes of this pleading, I allege that Joyce Traweek Burbank is a co-conspirator with her family and others in a RICO scheme to defraud Frieda Eversole and Finley Eversole and has committed at least two predicate acts of mail fraud in furtherance of that scheme in violation of §1341.
Vilifying me has taken on the character of a cottage industry for the Traweeks, Tingle, McWhorter, Colee, Hull and the Probate Court of Jefferson County. But its all lies and they have never been able to produce a single hard fact in support of their allegations.
Mail and Wire Fraud Summation
In sum, more than enough predicate acts of mail fraud and wire fraud have been committed by defendants – co-conspirators in an association-in-fact RICO enterprise – to establish a pattern of racketeering in furtherance of a scheme to defraud and recommend this case for trial. All mail and wire fraud predicate acts are interrelated and coalesce around a common or shared goal – viz., the economic exploitation of the elderly, specifically, the Eversoles. They are driven by similar motives, methods and strategies, including use of the legal system, conspiracy against rights and denial of due process. They involve the same plaintiffs and defendants. They meet the requirements of continuity and proximate causation. And they have resulted in injury to business and property and affected interstate commerce and travel. They meet all the legal requirements of RICO predicate acts.
Lastly, given the clandestine nature of most of the activity associated with this enterprise, the conspiracy of silence surrounding it, the refusal of defendants to provide requested documents, comply with subpoenas or court orders, give an accounting of the assets under their control, or grant us access to due process and other constitutional rights, we believe we are entitled to such means of discovery as may be required to provide any missing details essential to the verification of these mail and wire fraud charges.
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§1.2.7 Claims for Damages
In addition to applicable attorney and expert witness fees[187] and the cost of litigation, we seek RICO’s treble damages for all proprietary injuries suffered by Frieda Eversole and Finley Eversole. Damages would include all legal fees proximately caused by RICO’s violation,[188] lost interest on depleted portions of Frieda’s investments and her losses in her investments, loss of investments in my business (The Creative Age), competitive injuries suffered as a consequence of the loss of my business,[189] lost profits[190] and loss of livelihood, lost value of inventory, lost market value of the business, all expenses incurred as a direct consequence of the lockout and forced move to Nashville, Tennessee, including all apartment rent in Tennessee, value of lost vehicles, damage to contents of condo, damages for theft of legal and financial records locked in the condo, damages for destruction of the credit ratings of Frieda Eversole and Finley Eversole, and all other proprietary injures arising from predicate acts and/or the RICO conspiracy itself.
PART II: VIOLATIONS OF OUR CIVIL AND CONSTITUTIONAL RIGHTS
“When a plaintiff pleads pro-se in a suit for protection of civil rights, the court should endeavor to construe plaintiff’s pleadings without regard to technicalities.”
-- Pickering v. Pennsylvania Railroad[191]
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§2.1 The Fourteenth Amendment: A Right to Our Rights
Section 1 of the Fourteenth Amendment states:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein the reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Few subjects in constitutional law are more fascinating than the study of the Fourteenth Amendment, but for present purposes I invoke only a few stellar opinions definitive of broad constitutional principles, many of which are applicable in our case. We are all citizens of a great nation, but only to the extent that we endeavor to live up it its noblest principles are we its true citizens.
John Bingham, described by Justice Hugo Black as "the Madison of the first section of the Fourteenth Amendment,"[192] made these remarks concerning the meaning of due process of law:
Representatives, to you I appeal, that hereafter, by your act and the approval of the loyal people of this country, every man in every State of the Union, in accordance with the written words of your Constitution, may, by the national law, be secured in the equal protection of his personal rights. Your Constitution provides that no man, no matter what his color, no matter beneath what sky he may have been born, no matter in what disastrous conflict or by what tyrannical hand his liberty may have been cloven down, no matter how poor, no matter how friendless, no matter how ignorant, shall be deprived of life, or liberty or property without due process of law -- law in its highest sense, the law which is the perfection of human reason, and which is impartial, equal, exact justice; that justice which requires that every man shall have his right; that justice which is the highest duty of nations as it is the imperishable attribute of the God of nations.[193]
The understanding of "privileges and immunities" often cited in the debates over the Civil Rights Act and the Fourteenth Amendment is that of the settled judicial opinion delivered by Supreme Court Justice Bushrod Washington in 1823 in Corfield v. Coryell:
We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise;…[and] to take, hold and dispose of property, either real or personal;…may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental…. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old articles of confederation) "the better to secure and perpetuate mutual friendship and intercourse among the people of the different states of the Union."[194]
Representatives John Bingham, Thaddeus Stevens, and James F. Wilson, and Senators Jacob Howard and Lyman Trumbull, the principal congressional proponents of Section 1 of the proposed Fourteenth Amendment, generally agreed with Justice Washington's interpretation of the meaning of privileges and immunities in Article IV of the Constitution. In accepting Washington's opinion of the meaning of the clause, the Thirty-Ninth Congress echoed the prevailing judicial opinion in drafting §1 of the new amendment. In the Slaughterhouse Cases of 1872, however, the Court divested the Constitution of any significant substantive meaning for the privileges or immunities clause of the Fourteenth Amendment. Only the dissenting opinion of Justice Steven J. Field read the background of §1 of the Fourteenth Amendment with any degree of accuracy. In 1873, writing for himself and three other dissenting Justices in the Slaughterhouse Cases, Justice Field stated:
The privileges and immunities of citizens of the United states, of every one of them, is secured against abridgments in any form by any State. The Fourteenth Amendment places them under the guardianship of the National Authority….
The amendment was intended to give practical effect to the declaration of 1776 of inalienable rights, rights which are the gift of the Creator, which the law does not confer, but only recognizes....
[The] equality of right with exemption from all disparaging and partial enactments in the lawful pursue of life, throughout the whole country, is the distinguishing privilege of citizens of the United States....[195]
On a similar note, marking an important step forward, was the unanimous opinion in Association v. Topeka,[196] written, paradoxically, by Justice Miller, author of the Slaughterhouse opinion.
It must be conceded that there are such rights in every free government beyond the control of the State. A government which recognized no such rights, which held the lives, the liberty, and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power, is after all but a despotism. It is true it is a despotism of the many, of the majority, if you choose to call it so, but it is none the less a despotism. It may well be doubted if a man is to hold all that he is accustomed to call his own, all in which he has placed his happiness, and the security of which is essential to his happiness, under the unlimited domain of others, whether it is not wiser that this power should be exercised by one man then by many.
The theory of our governments, State and National, is opposed to the deposit of the unlimited power anywhere. The executive, the legislative, and the judicial branches of these governments are after all of limited and defined powers.
There are limitations on such power which grow out of the essential nature of all the free governments. Implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name. No court, for instance, would hesitate to declare void a statute which enacted that…the homestead now owned by A should no longer be his, but should henceforth be the property of B.[197]
The principle aim of the §1 of Fourteenth Amendment was to require that state “laws operate on all alike, and…not subject the individual to an arbitrary exercise of the powers of government.”[198] Such had been the opinion of its framers as noted in John Bingham’s statement cited above.
The Court, in Yick Wo v. Hopkins,[199] said:
Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authorities with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.[200]
I shall conclude these introductory remarks with one last citation. The Court in Hurtado v. California stated:
It is not every act, legislative in form, that is law. Law is something more then mere will exerted as an act of power. It must not be a special rule for a particular person or a particular case.... Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude. And the limitations imposed by our constitutional law upon the action of the governments, both State and national, are essential to the preservation of public and private rights... against the violence of public agents transcending the limits of lawful authority, even when acting in the name and wielding the force of the government.[201]
Most of the provisions of the Bill of Rights[202] are now fully enforceable against state and local governments by virtue of the doctrine of incorporation by which the Bill of Rights has been absorbed into the Due Process Clause of the Fourteenth Amendment. To merit protection, a claimed right must be "fundamental to the American scheme of justice."[203] We have then but to remember what Justice Field said, paraphrasing Blackstone: “That only is a free government, in the American sense of the term, under which the inalienable right of every citizen to pursue his happiness is unrestrained, except by just, equal, and impartial laws.”[204] Furthermore: “It is the promise of the Constitution that there is a realm of personal liberty which the government may not enter. Neither the Bill of Rights nor the specific practices of the States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.”[205]
Before proceeding, I wish to note that most of the constitutional violations herein alleges are actionable under 42 U.S.C. §1983. Specifically, §1983 is the basis upon which the Probate Court of Jefferson County is being sued. Rather than make this pleading unbearably lengthy (if it isn’t already), I shall for the most part forego specific §1983 arguments, but preserve the right to bring them in, subsequently or at trial, this statement providing notice.
We allege that our legal, civil and constitutional rights have suffered grievous injury at the hands of the Alabama judicial system and its court-appointed attorneys and that naught of justice has been ours. In search of that justice and the rights and liberties it promises, we now invoke our civil and constitutional rights.
Apropos an election year, we begin with that most fundamental of rights – the right of a citizen to vote.
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§2.2 A Constitutional Challenge to Alabama’s Voter Franchise[206]
For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not. If they were in charge, I should miss the stimulus of living in a society where I have, at least theoretically, some part in the direction of public affairs. Of course I know how illusory would be the belief that my vote determined anything; but nevertheless when I go to the polls I have a satisfaction in the sense that we are all engaged in a common venture. If you retort that a sheep in the flock may feel something like it; I reply, following Saint Francis, “My brother, the Sheep.”[207]
-- Judge Learned Hand[208]
The Constitution of Alabama states: “No person…who is mentally incompetent shall be qualified to vote until…removal of disability.” Article VIII, § 182
Alabama Code § 17-3-9 states: “Any person possessing the qualifications of an elector set out in Article 8 of the Constitution of Alabama, as modified by federal law, and not laboring under any disqualification listed therein, shall be an elector, and shall be entitled to register and to vote at any election by the people.” (emphasis added)
In sum, any person alleged to be “incapacitated” by any judge of any court of the State of Alabama thereby automatically ceases to be a voting citizen in local, state and federal elections.
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§2.2.1 A Matter of Rights
During the nineteenth century, states implemented a number of categorical exclusion from the franchise which included women, African Americans, immigrants, paupers, criminals, and person with some kinds of impairments. In the decades since, we’ve passed the Fifteenth, Nineteenth, Twenty-Fourth and Twenty-Sixth Amendments and enacted the Voting Rights Act, Voting Accessibility for the Elderly and Handicapped Act, National Voter Registration Act, and Americans with Disabilities Act,[209] all of which intend to promote the electoral participation of disenfranchised citizens and people with disabilities. Inclusion of people with mental or emotional impairments is the last frontier of the suffrage movement. The prejudicial and unenlightened attitudes which continue to stand in the way of full enfranchisement for all Americans (except those convicted of a felony) may require a decision of the federal courts to rectify, for it is the courts which have most often broken down the barriers erected by prejudice and exclusion of those we don’t fully understand. The right to one’s rights and to be treated as an equal is fundamental to our democracy. Any citizen of appropriate age capable of demonstrating the ability to vote is entitled to that right, and any state laws denying that right should be declared unconstitutional.
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§2.2.2 A Brief History of Disability Prejudice
How did we get where we are? A review of the history of disability disenfranchisement is beyond the scope of this pleading, but a few brief comments and a couple of quotes from the time period when such laws were being enacted will show how unenlightened by today’s standards the thinking was that lead to the enactment of laws such as the one challenged here.
It may not matter to state lawmakers that persons with disabilities cannot vote, but it matters to persons with disabilities who are denied a voice in their own interests and affairs – just as it has mattered profoundly to my mother that the courts, conservator and guardian-ad-litem have been utterly indifferent to her wants, needs and wishes. Such attitudes are the epitome of cruelty! In a word, they are medieval.
How better to make this point than by reference to the attitudes which created the law at issue.
Disenfranchisement laws developed alongside the establishment of “idiot school” in many states. Idiocy was thought to be not only an impairment of intellectual abilities, but a moral disability as well. James W. Trent illustrates this point in describing the portrayal of idiocy employed by Henry Knight, a prominent “reformer” of the time:
In speeches to draw attention to his newly opened school, which despite concerted efforts failed to receive funding from the Connecticut legislature, Knight by 1861 added a new dimension to his definition of idiocy. Idiots were passionate, filthy, self-abusive, animal-like, gluttonous, given to irrational behavior, intemperate, and possessed of all varieties of physical abnormalities.[210]
Samuel Gridley Howe, a well-known educator, felt that, while education might improve the idiot’s mental capacity, there was little hope that it could make him a more moral person:
It is a fearful question whether most of this class, though rising above the state of mental idiocy, are not still in the state of moral idiocy; whether by the necessity of the case, by the very question of our social system, they are not born in sin, nurtured in ignorance, and trained in depravity, so as to be certainly and necessarily predestined to the prison and the almshouse.[211]
Within this milieu of thought, states began passing laws or writing into their constitutions restrictions upon the voting rights of persons said to be “idiots,” “insane,” “lunatics,” “persons of unsound mind,” “mentally incompetent” or “mentally incapacitated.” It was in this context that Alabama incorporated its law, hereby challenged for its constitutionality, into a new Constitution upon reentering the Union following the Civil War. There the law remains, in the state’s Constitution and as a restriction upon voting rights, where it has served as the rationale for grave injustices against persons who have no faint resemblance to the characterizations of the time which were used to justify passage of such laws.
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§2.2.3 “Incapacity” in the Context of the Twenty-First Century
Sigmund Freud, the father of modern psychology[212], was nine years old when Alabama adopted its constitution, and Carl Jung[213] wouldn’t be born for another decade. The seminal thinkers of all major schools of modern psychology and psychiatry – e.g., Alfred Adler, Erich Fromm, Carl Rogers, Victor Frankel, Rollo May, Erik Erikson, Abraham Maslow, R.D. Lang, and Roberto Assagioli,[214] to name just a few, were yet to be born and advance our understanding of the human psyche, a body-mind-soul triplicity. Moreover, medical science had not yet identified dementia as a medical condition which, as recently as the 1950s, was called “hardening of the arteries.” Today, pharmaceutical advances have made major inroads into the care of conditions such as Alzheimer’s with drugs such as Aricept, with promises of a preventive vaccine within the next few years. The frontiers of the mind are light years removed from the unenlightened thinking of the second half of the nineteenth century when most state disenfranchisement laws, Alabama’s included, were ratified. It’s time for Alabama to enter the twenty-first century by granting the vote to all its citizens.
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§2.2.4 Changing Sociopolitical and Demographic Factors
As Great Britain was the world’s first experiment in global government, the United States is the world’s first great experiment in “universal brotherhood.” Every race, religion, nationality and point-of-view is represented in the population of America today, and as we learn to live together as “one nation,” so will the lessons of our experience as a people provide guidance to other nations in establishing better human relations. As a multicultural society, more factors than ever before enter into electoral decision-making. The exclusion of one segment of society from the franchise based on archaic ideas is irrational and as much an insult to the intelligence of the American people as the exclusion of African Americans and women. Commenting on the notorious debate over women’s suffrage, Robert Dahl said:
The history of the ‘votes for women’ movement, and of the feminist movement in general in the modern world, is so grotesque, undignified, fatuous, and tragic-comic (the adjectives are deserved rather more by male arguments and resistance against the suffragette movement) that it must forever make us doubtful of the value of rational arguments alone to persuade a vested interest to grant political and social concessions.[215]
The arguments employed today, say Schriner and Ochs, to justify state disenfranchisement of persons alleged “incompetent” are but variants of the arguments that created such laws in the first place:
These laws were justified presumably because ‘idiots’ and ‘insane persons’ (and those under guardianship or labels ‘incompetent’) were believed to be incapable of participating. They were viewed as incapable of engaging in the reasoned, complex thinking necessary for making political judgments. They could not acquire and weigh information about the qualifications of candidates for elected office and the relative merits of their positions on matters of public policy. Democracy was too complicated for ‘simple’ and ‘demented’ minds….Such individuals were viewed as neither intellectually nor morally fit to participate as equals in democratic self-governance….Other citizens could be their political guardians.[216]
Such reasoning is perpetuation still in state guardianship laws.
We also have the factor of changing demographics. I don’t know what the average lifespan was in the U.S. in the decades immediately following the Civil War, but as of 1900 the average life expectancy was forty-seven years. Today, it is 77.3 years, an increase of thirty years in a single century! The elderly population is the fastest growing segment of our citizenry, and with age come a variety of frailties -- physical, emotional and mental. The exclusion of people from the ballot box because of declining short-term memory or other such frailties is akin to excluding people with failing eyesight or loss of mobility. As we age, more and more of us will find ourselves shut out of our nation’s decision-making processes because we fail to qualify due to some minor medically manageable malady.
My mother’s example is a perfect case in point. The Probate Court of Jefferson County, Alabama, declared her “incapacitated” on November 1, 1999, in that moment stripping her of her voting rights. Four months later, under a variety of threats from defendants in this case, we removed to Nashville, Tennessee for mother’s safety and sanity. Because she had not been declared “incapacitated” in or by Tennessee, she was allowed to register and vote. She took a greater interest in the 2000 elections than in any other in her lifetime, due in part to her experiences in Alabama and increased realization of the importance having a voice in affairs that can so profoundly affect one’s life. She spent three to four hours a day watching CNN and ABC campaign coverage and listening to candidates debate the issues, often asking questions. She formed her own opinions about whom she wished to vote for and why, and on Election Day she voted for her candidates of choice. Had we remained in Alabama, that right would have been denied her. That she did listen to the candidates and issues, often expressing her views to me, is proof beyond refute that she was capable of voting! According to Dr. Schriner, it is estimated that there are between 500,000 and 1,250,000[217] such persons in the U.S. today who are fully capable of voting but are denied that right by virtue of having been declared mentally or emotionally incapacitated. The 2000 election demonstrated how important only a few votes can be in the outcome of a campaign. No vote is insignificant. Further, studies have shown that persons with mental and emotional impairments vote substantially the same way as other persons of similar socioeconomic backgrounds.[218]
I wish to note in passing that with the upcoming 2004 elections much in the news now, mother asked me, “Will I get to vote this time?” I had to say, “No, mother. The court took away your voting rights.” Yet we have conversations about the candidates whenever they are in the news. It’s sad that in what will probably be the last presidential election of her lifetime, she has to “sit it out.”
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§2.2.5 Only a Question of Constitutionality Remains
Past myths and uninformed ignorance can no longer be invoked in defense of state laws excluding persons of alleged “incapacity” from voting. To rely upon the arguments of the past to perpetuate these laws is to “use history as drunks use lamp posts – more for support than illumination.”
The only remaining question is one of constitutionality: At a time when the voter franchise has been extended to all other citizens (with the exception of convicted felons) without regard to race, gender, religion or national origin, what possible justification is there for failing now to carry the suffrage movement to its completion? As is said of the law, Ignorance is no excuse!
So let’s pose the essential constitutional questions:
One: Is the right to vote a fundamental, constitutionally-protected right to which all citizens are entitled?
The Constitution itself confers an absolute right to vote for certain popular offices. Article I, §2, cl.1 requires that members of the House of Representatives be “chosen…by the People,” and the Seventeenth Amendment commands that U.S. Senators be “elected by the people.” The equal right to vote is also guaranteed by the Fifteenth Amendment (race), the Nineteenth Amendment (gender), the Twenty-Fourth Amendment (failure to pay poll tax), and the Twenty-Sixth Amendment (age). Additionally, the Court has interpreted the equal protection clause of the Fourteenth Amendment as protecting the equal right to vote, saying citizens have a “right to participate in the electoral process equally with other qualified voters.”[219] And again, citizens have a “right to participate in elections on an equal basis with other citizens in the jurisdiction.”[220] Therefore, as a fundamental right, any state law which discriminates against or unduly burdens any segment of the population harms by excluding such persons from “those political processes which can ordinarily be expected to bring about repeal of undesirable legislation.”[221] In sum, the Fourteenth Amendment establishes the vote as a fundamental right for equal protection purposes.
Two: Can Alabama’s law withstand the strict scrutiny test?
The Court has held that “any classification restricting the franchise on grounds other than residence, age, and citizenship cannot stand unless the…State can demonstrate that the classification serves a compelling state interest.”[222] What would constitute a compelling state interest?
We assume the alleged “state’s interest” here to be the protection of the integrity of the electoral process itself from fraud and corruption. Such is the justified rationale for exclusion of persons convicted of felonies. It is also unlawful to exert undue influence on another’s voting decisions, but there is no evidence to suggest that persons of mental or emotional impairment are more likely to be influenced that other people. Many other social factors are far more critical in assessing undue influence – e.g., membership in labor organizations, associations formed around far-right or far-left social or political agendas, NRA membership, religious beliefs and affiliations, the self-interest of big business, alliance with ecological groups, criminal associations, vote-buying, etc. The rationale that exclusion of persons of alleged “incapacity” from the voting booth somehow serves “state interests” by achieving a greater measure of protection against fraud or corruption simply lacks coherent logic or compelling evidence. Nor can I think of any other rationale that would justify it.
I suggest that Alabama’s law fails to “advance a factual showing” that its classification of alleged “incompetence” addresses “a real, as opposed to a merely speculative, problem to the State.” Without such a showing, the Court has previously held that an alleged goal “lacks the weight we have required of interests properly denominated as compelling.”[223] Many people, such as my mother, who are clearly competent to evaluate issues, make judgments about candidates, are ethical and love America, are being shut out of the ballot box by this law. It is, therefore, over-inclusive in addition to failing to achieve a compelling state interest.
Three: Are there other solutions less invasive of constitutional rights that would better serve the state’s interest in protecting the integrity of the electoral process?
Such an alternative was advanced in 1982 by the American Bar Association. The ABA proposed that any competency test adopted by states be objective, and suggested this statutory language for such a test: “Any person who is able to provide the information, whether orally, in writing, through an interpreter or interpretive device or otherwise, which is reasonably required of all persons seeking to register to vote, shall be considered a qualified voter of this state and shall be registered to vote and allowed to cast a ballot in any election held in the election precinct in which the voter is registered.”[224]
The advantages of such a reasonable qualifying test are (1) that it truly objective, (2) applies the same standard to every individual who applies for registration as an elector, and (3) overcomes the constitutional difficulties of Alabama’s current law, which is not narrowly tailored, is over-inclusive, and fails to meet a compelling state interest. Moreover, as it stands, Alabama’s law represents affirmative and purposeful state action on behalf of voter discrimination.
Four: Are there other constitutional grounds for guaranteeing and protecting the voting rights of persons stripped of the franchise by Alabama’s law denying the vote to anyone alleged to be “incompetent” or “incapacitated”?
One final argument remains: that of national citizenship. Inasmuch as voting encompasses not only local and state elections, but also the election of members of Congress and the President and Vice President of the United States, voting transcends state lines and deserves the same protection as “travel rights”, and for the same reasons -- it is a right fundamentally rooted in national citizenship. A further argument, by analogical extension, is provided by U.S. Term Limits, Inc. v. Thornton,[225] which rejected arguments that states could impose term limits on the election of Senators or Representatives because they violated the “‘fundamental principle of our representative democracy,’ embodied in the Constitution, ‘that the people should choose whom they please to govern them.’” Id. at 783. If states cannot impose term limits on members of Congress, surely they cannot deny citizens the right to vote for them.
In his dissenting opinion in the famed Slaughter-House Cases, Justice Stephen J. Field held that the privileges and immunities clause contained in Article IV of the Constitution protects “equality of privileges and immunities…between citizens of different States” and concluded, “This equality of right, with exemption from all disparagement and partial enactments…is the distinguishing privilege of citizens of the United States.”[226] Justice Filed spoke also of “inalienable rights, rights which are the gift of the Creator, which the law does not confer, but only recognizes…which of right belong to the citizens of all free governments”[227] and of “fundamental rights, privileges, and immunities” which belong to each individual “as a free man and a free citizen” and “as a citizen of the United States.”[228] Within a few short years, Justice Field’s dissenting opinion had become the prevailing view of the Court.
While states may, for example, determine voting districts and the place and manner of voter registration and balloting, I argue as above that persons alleged to be “incapacitated,” if able to register and vote, are constitutionally entitled to the voter franchise on an equal basis with all other citizens of appropriate age who reside in the state and district in which they elect to vote. I contend that they are entitled to this right as free citizens of the United States and because the right to vote is a inherent right fundamental to national citizenship and is not to be disparaged or denied by the states, with the sole exception of conviction for a felony crime. Equality of rights demand the franchise for all other citizens.
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§2.2.6 The Last Suffrage Frontier: No Right Is More Precious
Alabama’s current law, disenfranchising any person of alleged “incompetence,” falls into the category of what Professor John Ely calls second-degree prejudice[229] -- negative stereotypic generalizations about a group of people who make up a discrete and insular minority which has been excluded from the political process by laws that deny them the right to vote and undermine their ability to get a hearing in the political forum and whose interests are undervalued or entirely ignored by the state legislature. As such, the law is unconstitutionally discriminatory.
Not only do such laws strip those of alleged “incapacity” of their fundamental right to vote, but they are a powerful symbolic barrier to full citizenship for people with disabilities.
Indeed, what are the factors that make for good citizenship? Is it not love of country, honesty and integrity, an interest in issues and affairs that affect oneself and one’s fellow citizens, the ability to make reasonable choices, a desire to vote and to have a say in who is elected to public office and what issues of the day advance the good of the community? So what if a person whose memory isn’t what it used to be had to make a few “reminder notes” to aid him or her in the polling booth? Does this mean such a person should get the same treatment by the state as a convicted felon? We aren’t talking about Jeffrey Dahmer or Ted Kaczynski here. We’re talking generally about people who have devoted their lives to their families and to making America a better nation. How can we justify denying them the vote?
Earlier, we quoted the old argument that “other people should be the political guardians” of those with mental or emotional impairments. Guess what? Other citizens have not chosen to be their political guardians as is proved by the fact that there is not a single state or federal law protecting the economic rights of any senior citizen or others alleged to be “incapacitated.” Extensive research has not turned up even one law or one person who knows of such a law.[230] Citizens of limited impairment need their own voice.
Politically, the states’ exclusions of some citizens based on their having been labeled as having a disability is troubling. These laws are apparently based on misunderstandings, myths, and prejudices about the people being targeted….Given our nation’s history of contentious politics over the voting rights of others, it is ironic that so little critical attention has been paid to these disability-based exclusions. Voting is the ultimate act of American citizenship. Voting makes one a member of the political community. The act of voting gives voice to the needs and concerns of the voter, but also expresses the voter’s perspectives about what constitutes the common good. Politically, electoral participation is necessary to ensure that those elected known whom they are representing.[231]
Because voting has been determined by the Court to be a fundamental right, states cannot abridge that right in violation of the Fourteenth Amendment’s equal protection clause. In Reynolds v. Sims,[232] the Court said, “Undeniably, the Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal elections.” Therefore, it is time to finish the suffrage “revolution” which accords to all citizens equal respect and grants to each an equal right to vote! Moreover, “[i]f the disability community is to make further progress in improving the lives of people with disabilities, people with disabilities themselves must have a greater voice at the ballot box.”[233]
Lest we forget,
No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.[234]
Frieda Eversole was stripped of her voting rights by Alabama’s law disenfranchising those of alleged “incompetence.” She hereby challenges the constitutionality of this law. She also seeks appropriate punitive damages against those persons most responsible for the deprivation of this fundamental constitutional right, previously enjoyed and lost as a direct consequence of their conspiracy to deprive her of her rights, her financial assets, and her freedom of choice in the affairs of her own life.
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§2.3 State Action, Private Actors & The Fourteenth Amendment
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§2.3.1 State Action in Violation of Constitutional Rights
“If an individual is possessed of state authority and purports to act under that authority, his action is state action. It is irrelevant that he might have taken the same action had he acted in a purely private capacity….”
-- Griffin v. Maryland[235]
“State action” concerns “abuse of power” by one who is “a repository of state power.” State action occurs whenever “state authority” is invoked on behalf of actions which violate the constitutional or civil rights of individuals as secured by § 1 of the Fourteenth Amendment. A state action claim may also arise under 42 U.S.C. § 1983. Such action occurs whenever a state or any of its agencies, or any agency of county or city government, or any employee of such agencies, acting “under color of law,” violates or conspires to violate the constitutional rights of any person. In Lugar v. Edmondson Oil Co.,[236] the Court defined the basics of the state action doctrine:
Our cases have accordingly insisted that the conduct allegedly causing the deprivation of the federal right be fairly attributable to the State. These cases reflect a two-part approach to this question of "fair attribution." First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible.... Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State. Id. at 937.
“State action" and "under color of a state law"[237] are essentially synonymous terms.[238] Similarly, when any state agency confers governmental power on a private person or entity, and the authority for the conduct in question is derived from the state or its agents, that private person or entity may also be said to be engaged in “state action.”[239] The state agent defendants to this action are being sued individually and in their official capacity.
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§2.3.2 Joint Action between State Actors and Private Parties
Likewise, when a private person forms a “symbiotic relationship” with a state actor, or “conspires,” “joins with” or “acts in concert” with a state actor, such private person is also said to be engaged in “state action” and acting “under color of state law.”[240] If a private party and a state actor engage in joint activity which results in the deprivation of another's constitutional rights, the activity of the private party may be deemed “state action,” subjecting an otherwise private actor to the same restrictions and remedies under the Fourteenth Amendment and §1983 as are applicable against the state. Cf. Dennis v. Sparks,[241] Adickes v. Kress & Co,[242] and Patrick v. Floyd Medical Center.[243] Also, private attorneys alleged to have conspired with a judge to deny a plaintiff’s due process rights in a state court are subject to suit under §1983. Cf. Eitel v. Holland.[244] The joint action doctrine holds true whether the private actor is a co-conspirator or merely engages in a mutually beneficial relationship with a state actor which results in actions that violate the Fourteenth Amendment rights of an individual.[245] The involvement of a state actor triggers the state action doctrine, while the "joint" nature of the activity brings the private actor within the scope of the state action doctrine. The private actor, consequently, remains liable for the violations of the constitutional rights at issue even if the state actor is one entitled to immunity.[246] State action will also be present where a litigant uses a state court for an improper purpose and the court is appraised that the litigant’s actions violated the opposing party’s constitutional rights. Cf. Casa Marie, Inc. v. Superior Court of Puerto Rico.[247]
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§2.3.3 Constitutional Claims Under §1983
Section 1983, reads:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress.
First, it is important to keep in mind that all issues being litigated in this action involve federal questions and concern constitutional rights and federal laws, not state laws (except voter disenfranchisement), and second, that the private parties joined are “state actors” acting “under color of law” by virtue of acting in concert and collusion with state actors wearing the mantle of state authority and accomplishing their objectives by reliance upon the police powers of the state.
Section 1983 enables a person whose constitutional rights have been violated to sue the wrongdoer personally for redress. Liability attaches if the defendant has acted “under color of state law” and the defendant’s actions deprive the plaintiff of some right, privilege, or immunity secured by the Constitution or federal laws.[248] Since none of the federal questions being litigated has been previously addressed in state court, preclusion and collateral estoppel should not apply.
“State action” questions are essentially fact-bound questions for determination by a jury. Proof of a “conspiracy” or “joint action” between private persons and state actors is determined circumstantially based on a preponderance of the evidence.
Many details concerning the nature of the conspiracies and joint actions among defendants in this case have already been spelled out in Part I of this pleading. The consequent “state action” violations of our civil and constitutional rights will take up much of Part II, with the nature and consequences of specific joint action violations being spelled out as apropos.
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§2.3.4 An Example of §1983: State Control and Plaintiff’s Vulnerability
Since I shall not argue all §1983 issues in this pleading due to its length, I will set forth three examples of its applicability.
A fundamental distinction between a private actor and a governmental actor is found in the roles of the government as the keeper of public order and protector of public interests. In these roles, state actors have wide discretion to use force without fear of civil or criminal liability. Consequently, individuals generally acquiesce to governmental threats and the use of force in circumstances where they might resist, flee or turn to the government for help if similarly threatened with harm by a private actor. For this reason, victims are more vulnerable to the exercise of illegitimate or excessive force by governmental actors.
The government differs from a private actor also in that it may legitimately exercise control over individuals against their will -- a privilege private actors rarely enjoy except under very narrow and limited circumstances. But when governmental actors exercise such control, it significantly alters a person’s ability to protect him- or herself from injury or harm. This circumstance significantly alters the balance of power between an injured plaintiff and a governmental actor. Consequently, where the government renders an individual more vulnerable to harm, fairness demands that the government take measures to protect individuals from the risks.
The Supreme Court has recognized that governmental control warrants imposing constitutional duties to provide for security and protect against “recklessness,” “callous indifference,” or “deliberate indifference.” While relevant cases have traditionally arisen in the context of protecting inmates in prisons or mental health institutions, a less obvious case is provided by White v. Rochford, a case involving police who stopped a car on an expressway and took its driver, leaving two small children stranded and unattended in the car for several hours. In this case, even though the harm was not deliberate, the officers were held constitutionally liable. Where governmental agents render a person more vulnerable than he or she would be but for the government’s actions, the vulnerability rule applies.
Apropos our case, the withdrawal by James Tingle, Ripon Britton and their associates and the Probate Court of Jefferson County of all monies essential for Frieda Eversole’s living expenses, healthcare and prescriptions throughout a major portion of Tingle’s conservatorship, and subsequently, and locking Frieda out of her own home for twenty-seven months without access to her furniture, clothing and other possessions – actions taken under the guise of a court-established “conservatorship” -- represent a deliberate and malicious indifference to the health, welfare, security, and mental and emotional suffering of Frieda Eversole. Not being allowed a single cent to live on or a home to live in at age 89 surely represents an abuse of power “shocking to the conscience” and actions which are objectively unreasonable. At the same time Frieda was being denied the most basic necessities of life, Tingle and his associates were diverting substantial sums of her money to themselves as “fees.” By declaring her “incapacitated” and removing her, along with me, her son, from any voice in or control of her financial assets (or my own), these state actors employed state power to render the plaintiffs in this case “vulnerable” to injuries to health, safety, and security, in addition to violating our constitutional rights to dignity and respect. Reckless and malicious indifference to “the welfare of the ward” by Tingle, Colee, McWhorter, Britton, Hand Arendall, the Traweeks and Judges Reynolds and Bolin represents state action for §1983 purposes under the Fourteenth Amendment.
Likewise, when Tingle, Hand Arendall, and the Probate Court of Jefferson County illegally seized and shut down my art publishing business engaged in interstate and foreign commerce, these actions also gave rise to a §1983 cause of action under the commerce clause. In Dennis v. Higgins[249] the Court stated that §1983 should be “broadly construed” to provide a remedy “against all forms of official violation of federally protected rights”[250] and held that the commerce clause creates a “right” to engage in interstate commerce free from undue interference by individual states. Analogous §1983 arguments can be made for each of the violations of our constitutionally protected rights as outlined below.
Also, analogizing from such cases as Monell v. New York City Department of Social Services[251], Owen v. City of Independence[252] and City of Newport v. Fact Concerts, Inc.[253] (cities held liable under §1983) in what may be an innovative action, I allege that the Probate Court of Jefferson County (a county court) qualifies as a “person” liable under §1983 for willful intent to harm and defraud, maliciously motivated rulings and administrative actions, and reckless disregard for consequent injuries resulting from its role[254] in depriving Frieda Eversole and Finley Eversole of substantial financial and business assets and other constitutionally protected rights without due process of law in clear violation of §1983 and the Fourteenth Amendment. Decades of such conduct toward the elderly in and by the Probate Court of Jefferson County constitute “policy or custom” within the meaning of §1983. The rationale for this line of argument will be set forth at the appropriate time, this statement providing notice.
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§2.3.5 Section 1985(3): Conspiracy Against Rights and Injury to Persons
and Property
Section 1985(3) provides:
If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, an person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws [and] in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the objective of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.
Once more, the sheer length of this pleading argues against an in-depth analysis at this juncture of §1985(3) application to our case. Nevertheless, certain features of this section need to be noted as protection of our rights.
The language of this section is similar to that of §1 of the Fourteenth Amendment. However, the latter address only “state action” and applies only to the states. Congressional and judicial histories alike make clear that §1985(3) can and does extend to private parties who conspire against federally protected rights. In the words of Justice Stewart, “It is thus evident that all indicators – text, companion provisions, and legislative history – point unwaveringly to §1985(3)’s coverage of private conspiracies.”
The few brief comments which follow, being necessarily brief, are to be construed neither as an argument for the application of §1985(3) or as a sufficient basis for an argument against its application. They merely hint at the possible range of application: (1) §1985(3) is not limited in its scope to the rights protected under the Fourteenth Amendment. (2) Not being thus limited, the “class of persons” protected may not be limited to those traditionally regarded as “suspect classifications” under the Fourteenth Amendment. (3) Conspiracies by private persons against such rights as freedom of speech, travel, privacy and voting rights are assuredly covered by §1985(3), whereas they are protected only against “state action” under §1983 and the Fourteenth Amendment.[255] (4) §1985(3) offers no indication that the rights it protects are limited to rights created by independent sources in federal law, the Constitution or Bill of Rights. It may be interpreted as covering rights entitled to state law protection, and some scholars hold that §1985(3) may itself be the source of the rights protected from private conspiracies and private invasion. (5) The nature of the animus or virulent intent motivating the violations of rights may require examination as a source of the rights requiring protection and the persons or groups in need of protection. “The equal protection of the laws” ought not to be so defined as to become the source of unequal treatment.[256]
[Back to top]§2.3.6 Accrual and Tolling of Constitutional Claims
This is perhaps as good a place as any to address questions of accrual and tolling vis-à-vis civil and constitutional challenges.
My researches have turned up no answers as to whether or when accrual begins, if it does, on constitutional questions and rights.[257] As for violations of the rights of Frieda Eversole, my mother, at what point can accrual for violations of her constitutional rights be alleged to begin running? When her appeal to the Alabama Supreme Court was turned down? When the Alabama co-conspirators succeeded in defeating our efforts to have her case transferred to the Probate Court of Davidson County, Tennessee? When we were forced back to Alabama against our will and found all our legal files and financial records missing from our condo? Where an on-going fiduciary conspiracy is involved, does accrual begin at all? Under RICO law §1962(d), accrual beings only when the conspiracy’s goals have been accomplished, or the conspiracy has been abandoned. In our case, neither has yet occurred, meaning that strictly speaking the statute of limitations under §1962(d) has not yet begun to run. Would similar principles apply in regard to constitutional rights given the ongoing conspiracy against us? We still have not been granted our due process rights! Would this qualify as an ongoing violation of Fifth and Fourteenth Amendment rights? And what of concealment of evidence, conflicts of interest, and the disappearance/destruction of crucial records as means of thwarting our rights? No one violation confined to a single event or time-period exists to establish a precise timeline fo