11-1924 2nd Cir Karron Brief for Additional Time for Reconsideration Package

7/30/2019 11-1924 2nd Cir Karron Brief for Additional Time for Reconsideration Package

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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUITThurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500

MOTION INFORMATION STATEMENT

Docket Number(s): Caption [use short title]

Motion for:

et forth below precise, complete statement of relief sought:

MOVING PARTY: OPPOSING PARTY:

9 Plaintiff 9 Defendant

9 Appellant/Petitioner 9 Appellee/Respondent

MOVING ATTORNEY: OPPOSING ATTORNEY:

[name of attorney, with firm, address, phone number and e-mail]

Court-Judge/Agency appealed from:

lease check appropriate boxes: FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND

INJUNCTIONS PENDING APPEAL:

Has movant notified opposing counsel (required by Local Rule 27.1): Has request for relief been made below? 9 Yes 9 N

9 Yes 9 No (explain): Has this relief been previously sought in this Court? 9 Yes 9 N

Requested return date and explanation of emergency:

Opposing counsels position on motion:

9

Unopposed9

Opposed9

Dont KnowDoes opposing counsel intend to file a response:

9 Yes 9 No 9 Dont Know

s oral argument on motion requested? 9 Yes 9 No (requests for oral argument will not necessarily be granted)

Has argumentdate of appeal been set? 9 Yes 9 No If yes, enter date:_______________________________________________________

ignature of Moving Attorney:

__________________________________Date: ___________________ Service by: 9 CM/ECF 9 Other [Attach proof of service]

ORDER

T IS HEREBY ORDERED THAT the motion is GRANTED DENIED.

FOR THE COURT:

CATHERINE OHAGAN WOLFE, Clerk of Court

Date: _____________________________________________ By: _____________________________________________

Form T-1080 (rev. 7-12)

11-1924

Additional 90 days for reconsideration motio

We wish to file motion for reconsideration and for aJury Trial on the merits. We were flooded out by

USA v Karron

superstorm Sandy and lost all work in progress. We

seek to solicit assistance of counsel. Brief appended.

Karron

USA

348 East Fulton Street

Michael Byars

86 Chambers StreetLong Beach, NY 11561 New York, NY 10003Telephone (516) 515 1474 Telephone: 212 637 2793e-mail : [email protected] e-mail: [email protected]

SDNY/Buchwald

pro se

s/ D. B. Karron Nov. 13, 2012


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A

Certificate of Service

Daniel B. Karron,Defendant-Appellant,

v.

United States of America,

Plaintiff-Appellees.

I, D. B. Karron hereby certify under penalty of perjury that on April 12, 2012, Iserved a copy of the Corrected Appeal Reply Brief by___ United States Mail___ Federal Express___ Overnight Mail___ Facsimile_X_ E-mail to [email protected]_X_ Hand deliveryon the following parties

For the United States of AmericaMichael J. Byars, Assistant United States AttorneyUnited States Attorney's Office, Southern District of New York86 Chambers Street, 3rd Floor, New York, New York 10007

Signed, November 13, 2012 in Long Beach, New York

/s/__________________________D B. Karron,

pro se


Long Beach, NY 11561

CERTIFICATE OF SERVICE

11-1924-civ


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11-1924To be argued by:D. B. KARRON

FOR THE SECOND CIRCUIT

Docket No. 11-1924

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DANIEL B. KARRON,

Defendant-Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF FOR THE DEFENDANT-APPELLANT FOR Extension of

time for RECONSIDERATION

DANIEL B.KARRONpro se


Long Beach, New York 11561

(516) 515- 1474

[email protected]


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FOR THE SECOND CIRCUIT

Docket No. 11-1924

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DANIEL B. KARRON,

Defendant-Appellant.

BRIEF FOR THE DEFENDANT-APPELLANT FOR Additional

time for RECONSIDERATION

Preliminary Statement

The Defendant-Appellant begs this honorable Courts for additional 90 days time withwhich to make an argument for reconsideration of the fact in this courts adverse Summary Order

of Sept 26, 2012. The Defendant-Appellant requests this court to remand this case back to theDistrict court for a jury trial. The purpose of this jury trial is to decide the single matter of fact

the District Court summarily judged as a undefendable matter of collateral estoppel for whichthere was no triable issues. This is incorrect prima facie these matters were not in evidence in

the prior criminal trial to be summarily decided or much less estopped as triable issues.

This additional time is required because of the extraordinary events of the past two weekswith the inundation of the Defendant-Appellants home of Long Beach, New York in Super

storm Sandy. The computer were rescued but City of Long Beach was rendered uninhabitable,with no water, sewerage, power for almost two weeks. The Defendant-Appellant has lost almost

everything again. The Defendant-Appellant has had to move in with her surviving computerwith a friend in Brooklyn but lost all works in progress at the time of the flood. This additional

time has not been previously requested. The Defendant-Appellant has been unable to access theinternet and cell phone service in Long Beach until today. The Defendant-Appellant is also

soliciting friend of the court opinions and reviewing legal issues central to the courtsreconsideration.


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Proposed Argument1

The Defendant-Appellant intends to bring to the Court attention for reconsideration thisfact

2:

The only evidence exhibited that was not rejected to the Buchwald Court (TheClaim) presented by the Government Plaintiff was not in evidence at the

foundational criminal trial of the Patterson Court.

It is simple matter of record; it is a fact. It is easy enough for an independentreviewer of facts to verify;

o the exhibits presented to the Buchwald court bore no Patterson court trialexhibit identifiers or Bates Stamps.

o They were presented de-novo

o They were sworn too de-novo

o had this material been previously presented, it would have been noted inthe documentation, supporting declarations (affidavits in criminal

procedure, of which there were none), and touted by the Government in itsbriefs. No mention of prior submission of any of these documents was

made by the Government.o This material summarily held as clear evidence of a False Claim same

transaction under 31 U.S.C. 3731 (e) False claims procedure. As such itwas un-defendable and grounds for Summary Judgement.

o This is logically impossible because it was never in prior evidence.o There can be no same transaction if the transaction was never in

evidence to have been decided, adjudicated, or facts found upon in a priorfinding of fact.

o Without a same transaction, there can be no False Claims Act liability by

estoppel.o Without estoppel under 31 U.S.C. 3731 (e) Summary Judgment should

be voided and a new trial on the merits warranted

Significance to this case

What does this fact have to do with this case; and how, if this issue of fact wereconsidered, and not overlooked, it would change the outcome of this honorable courts decision?

The foundation evidence of the Buchwald Court decision to invoke estoppel and grant

1 The Defendant-Appellant made many supporting complex and detailed arguments that should go to a jury

for consideration not afforded by Summary Judgment; Only one point of fact and law is being proffered forreconsideration by this court to establish the merit of this one argument of many others without surrendering

consideration on merit for on those other arguments.2 With full references and documentation into the case record, statute and case law.


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Summary Judgment was introduced de novo by the Government Plaintiff. It is new evidence.These items of evidence, consisting of documents signed by Karron to support the governments

payment of funds from the US Treasury to CASI and indirectly, Karron were not in evidence atthe Criminal Trial.

Without the invocation of 31 U.S.C. 3731 (e) and Summary Judgment, this case shouldhave gone to a Jury Trial, for a full hearing on the volumes of exculpatory facts and lawcrammed into the Defendant-Appellants Brief and Reply Brief.

It is our central contention of law that new evidence (The Claim) cannot be used to

support Collateral Estoppel. This is if it is not already in evidence in the prior Criminal trial andpart of a decided issue it cannot be a foundation for Collateral Estoppel.

3. The evidence cited at the Buchwald Courts opinion was not used as part of the priorPatterson court adjudicated issue, or a adjudicated as fact by the prior Patterson court.

Therefore, it cannot be a foundation for estoppel by any stretch of legal interpretation.

Argument

Consider the reverse argument as a means to clarify the implication of this logic:

Had The Claim been directly, adjudicated at the prior criminal trial as false, then an

argument for estoppel would necessarily be automatically triggered as a matter of statute andlaw.

Had The Claim been in evidence in the foundational criminal trial and

Had The Claim been adjudicated as a false transaction or claim on the U. S.

Treasury, then the collateral civil attack citation of that evidence would be clearly sufficient

to invoke the statute 3731(e) estoppel (Statutory Collateral Estoppel)

The Claim same transaction evidence would have had to be something decided as false

in some fashion by the prior court decision.

Consider the following modification of the above obverse argument:

Even if The Claim had been in evidence and

3 Ashe v. Swenson, 397 U.S. 436, 443 (1970). To apply collateral estoppel, the following elements must be

established: (1) the issue previously decided is identical with the one presented in the action in question, (2) the prioraction has been finally adjudicated on the merits, (3) the party against whom the doctrine is invoked was a party, or

in privity with a party, to the prior adjudication, and (4) the party against whom the doctrine is raised had a full and

fair opportunity to litigate the issue in the prior action. Dodge, 203 F.3d at 1198.


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Had been peripherally or tenuously involved in the Criminal Trial Courtsjustification for culpability

Then Statutory Collateral Estoppel could be triggered, no matter how distant ortenuous the relationship with the guilty verdict and the trial courts finding of fact.

sina qui non conditions for estoppel

The Buchwald Court grant of a Summary Judgment to the Plaintiff-Appellee was basedon Collateral Estoppel. The False Claims Act 3731(e). False claims procedure spells out two

sina qui non conditions for a judgment estopping defense: Both of which must be true in orderfor the axe to of Summary Judgment to fall (and condition):


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(e) Notwithstanding any other provision of law, the Federal Rules of Criminal Procedure,or the Federal Rules of Evidence, a final judgment rendered in favor of the United States in any

criminal proceeding charging fraud or false statements, whether upon a verdict after trial or upon

a plea of guilty or nolo contendere, shall estop the defendant from denying the

[1] essential elements of the offense in any action

[2] which involves the same transaction as in the criminal proceeding and

[3] which is brought under subsection (a) or (b) of section 3730.

[ 3731(e) enumeration inserted]

The defendant appellants right to a trial to adjudicate the facts was abrogated by the

Buchwald Court decision to grant Summary Judgment to the Government.

Question of Law: Are 3731(e) clauses 1,2,3 are dependent and or independent orrelated, or a combination of both or and and ?

The other foundation on which the Buchwald Court sustained the Governments Motion

for Summary Judgment was the Courtssui generisinvocation of Same Facts. This Same Factsissue seems to be construed from clause item [1] in 3731(e) paragraph.

Distinguishing United States ex relFeldman v. Van Gorp

In United States ex relFeldman v. Van Gorp, at the District Court trial the defendantadmitted making misstatements on its quarterly technical report forms. These points of evidencewere admitted to and in evidence in the prior civil trial. van Gorp admitted and the court

accepted that van Gorp had not not providing minimal number of AIDs neuropsychiatricpatients for its fellowship training program, and then misstating to the

government that it had the required type of AIDS patients that in fact Van Gorp had not done so.Citations to follow.

This court rejected this argument in that case. That is not the argument made in this case

at all.


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Issue Presented for Reconsideration

Can Summary Judgment under FRCP and FCA be sustained under Statutory Estoppelwithout the identification of a prior courts finding of a proven false transaction claim on the US

Treasury?

Standard of Review for Reconsideration

The standard for granting motions for reconsideration is strict; motions for

reconsideration "will generally be denied unless the moving party can point to controlling

decisions or data that the court overlooked matters, in other words, that might

reasonably be expected to alter the conclusion reached by the court."4

Motions for

reconsideration will not be granted where the party merely seeks to relitigate an issue that

has already been decided.5

The three major grounds for granting a motion for

reconsideration in the Second Circuit are:

(1) an intervening change of controlling law,(2) the availability of new evidence, or

(3) the need to correct a clear error or prevent manifest injustice.67

The matter ofThe Claim not being in evidence in the prior criminal trial is

a manifest matter of record. If it is not in prior evidence, introducing The Claim at

the Buchwald Court as a matter of summary judgment without a trial and

precluding any defense under 31 U.S.C. 3731 (e) Estoppel is a manifest

injustice.

Conclusion

False Claim Act culpability requires, at the very least, one specific claim on the treasuryof the U.S. that is proven false

8, and that the person who presented that claim

9knew it is false.

10

If no specific false claim can be identified, there is no culpability. The Patterson Court only

4Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).5Id.6 Virgin Atlantic Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (citing 18 Charles A.

Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure 4478).7 Reconsideration MotionsSecond Circuit Standards; From Bank of New York v. Bell, 2011 U.S. Dist. LEXIS

3850 (D. Conn. Jan. 14, 2011): http://www.josephnyc.com/blog/?blogID=15898 A-480, Karron Oral Argument at 3, Line 129 31 U.S.C. 3729(a)(1) (2000). False Claims Liability10 31 U.S.C. 3729(b)(1) (2000). False Claims definitions knowing and knowingly


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looked at Check and American Express Credit Card disbursements.11 The Buchwald Court onlyadmitted The Claim on the U. S. Treasury. There are no common elements or exhibits

between The Claim and the Patterson Court findings.12

If this Court finds no common basisbetween culpable checks and credit card receipts made with funds from The Claim, this

judgment must be vacated.

Signature

D. B. Karron,pro se

Dated: November 13, 2012 in Long Beach, New York

11 A-70, A-361 footnote12 A-492, Karron Oral Argument at 15, Line 17 et seq.

Documents

11-1924 2nd Cir Karron Brief for Additional Time for Reconsideration Package