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11-FM-000010
________________________________________
DISTRICT OF COLUMBIA COURT OF APPEALS
________________________________________
MATTHEW AUGUST LEFANDE
Respondent-Appellant
v.
CAROLYN ANNE MISCHE-HOEGES Petitioner-Appellee
________________________________________
APPELLANT’S OPENING BRIEF IN SUPPORT OF APPEAL OF THE SUPERIOR COURT’S
DENIAL OF APPELLANT’S MOTION TO VACATE, ALTER OR AMEND CONSENT ORDER
________________________________________
Matthew August LeFande 4585 North 25th Road Arlington VA 22207 Tel: (202) 657-5800 Fax: (202) 318-8019 [email protected]
Appellant, pro se
ii
LIST OF PARTIES AND ATTORNEYS There are no corporate parties. Matthew August LeFande, a natural person and a resident of the Commonwealth of Virginia. Horace Lee Bradshaw, attorney for LeFande. Carolyn Anne Mische-Hoeges, a natural person and a resident of the Commonwealth of Virginia. Stephen L. Neal, Jr., DimuroGinsberg, PC, attorney for Mische-Hoeges. Ryan M. Witkowski, Feldsman Tucker Leifer Fidell LLP, attorney for Mische-Hoeges.
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Table of Contents I. Table of Authorities............................................................................. iii II. Statement of Issues Presented for Review ........................................... 1 III. Statement of the Case ........................................................................... 3 IV. Statement of Facts ................................................................................ 5 V. Argument ............................................................................................ 10 1. Standard of Review ....................................................................... 10
2. The September 21, 2010 Consent Order is void ........................... 10
a. The Consent Order is void for lack of jurisdiction ............. 11
i. The June 22, 2010 Temporary Restraining Order was issued in violation of District of Columbia law ....... 12
ii. The default Civil Protection Order of July 6, 2010 was
issued in violation of District of Columbia law ....... 15
iii. The Temporary Restraining Order was repeatedly extended by the Superior Court in violation of District of Columbia law ....................................................... 23
b. The Consent Order is void for a lack of due process.......... 25
i. LeFande was unlawfully deprived of any discovery 27
ii. The Superior Court improperly denied LeFande’s
Motion in Limine...................................................... 30
c. The Consent Order is void as a product of unlawful judicial coercion ............................................................................... 35
d. The Consent Order is void as an unlawful prior restraint
upon LeFande’s freedom of speech and association .......... 36
ii
e. Upon demonstration of Mische-Hoeges’s fraudulent intent in seeking a restraining order, the Superior Court should have vacated the Consent Order and dismissed the matter with prejudice...................................................................... 38
f. The Superior Court failed to conduct any inquiry into
LeFande’s factual allegations in support of his claim of Mische-Hoeges’s fraud upon the Court .............................. 38
VI. Conclusion ......................................................................................... 43 Certificate of Service
iii
I. Table of Authorities Cases ABKCO Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988 (2d Cir. 1983)..... 35 Adair v. United States, 391 A.2d 288 (D.C. 1978)............................................... 33 Agostini v. Felton, 521 U.S. 203 (1997) ............................................................... 39 Aguilar v. Tex., 378 U.S. 108 (1964)...............................................................13-14 Ahrens v. Broyhill, 117 A.2d 452 (D.C. 1955). .................................................... 33 Ake v. Oklahoma, 470 U.S. 68 (1985) .............................................................26-27 American Malting Co. v. Keitel, 209 F. 331 (2d Cir. 1913)......................36, 37-38 Arthur Andersen & Co. v. Ohio, 502 F.2d 834 (10th Cir. 1974)........................... 11 Banks v. United States, 926 A.2d 158 (D.C. 2007) ........................................ 32, 34 Bass v. Hoagland, 172 F.2d 205 (5th Cir. 1949)................................................... 11 Bogorad v. Kosberg, 81 A.2d 342 (D.C. 1951).................................................... 33 Brinegar v. United States, 338 U.S. 160 (1949)................................................... 14 Brooks v. Great Atlantic & Pacific Tea Co., 92 F.2d 794 (9th Cir. 1937)............ 36 Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371 (1940) ......... 11 Chomski v. Alston Cab Co., 32 A.D.2d 627, 299 N.Y.S.2d 896 (1969) .............. 36 Chrysler Corp. v. United States, 316 U.S. 556 (1942) ......................................... 41 Clack v. Reid, 441 F.2d 801 (5th Cir. 1971).......................................................... 27 Clemencia v. Mitchell, 956 A.2d 76 (D.C. 2008)................................................. 10 Comm. for Creative Non-Violence v. Pierce, 814 F.2d 663 (D.C. Cir. 1987)) ........ ................................................................................................................... 17, 21, 37 Coulibaly v. Malaquias, 728 A.2d 595 (D.C. 1999) ............................................ 19 Crane v. Kentucky, 476 U.S. 683 (1986).............................................................. 27
* Crosby v. Bradstreet Co., 312 F.2d 483 (2d Cir. 1963)....................................... 37 Crutchfield v. United States, 779 A.2d 307 (D.C. 2001)...................................... 32 Cruz-Foster v. Foster, 597 A.2d 927 (D.C. 1991) ............................................... 17 Del Rio v. Northern Blower Co., 574 F.2d 23 (1st Cir. 1978) .........................35-36 Dyson v. United States, 848 A.2d 603, 610 (D.C. 2004)...................................... 32 Evans v. Fenty, 701 F. Supp. 2d 126 (D.D.C. 2010) ............................................ 39 Firestone v. Harris, 414 A.2d 526 (D.C. 1980) ................................................... 10 Foote v. Maryland Casualty Co., 186 A.2d 255 (Pa. 1962)................................. 12 Fowel v. Wood, 62 A.2d 636 (D.C. 1948) ............................................................ 33 Goozh v. Capitol Souvenir Co., 462 A.2d 1140 (D.C. 1983)............................... 11 Hanzo v. deParrie, 152 Ore. App. 525 (1998) ............................................... 17, 19 Henderson v. Fisher, 631 F.2d 1115 (3d Cir. Pa. 1980) ...................................... 27 Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489 (1982) .............25-26 * Cases chiefly relied upon.
iv
Holmes v. South Carolina, 547 U.S. 319 (2006).................................................. 27 In re A.S.W., 391 A.2d 1385 (D.C. 1978)............................................................. 32 In re Complaint of Bankers Trust Co., 752 F.2d 874 (3d Cir. 1984) ................... 30 In re Halkin, 598 F.2d 176 (D.C. Cir. 1979) ........................................................ 38 In re L.M., 432 A.2d 692 (D.C. 1981) .................................................................. 32 Jackson v. DeSoto Parish School Board, 585 F.2d 726 (5th Cir. 1978) ............... 30 Jackson v. United States, 441 A.2d 1000 (D.C. 1982) ................................... 32, 34 James v. United States, 478 A.2d 1083 (D.C. 1984)............................................ 32 Johnson v. Lustine Realty Co., Inc., 640 A.2d 708 (D.C. 1994) .......................... 40 Jones v. United States, 362 U.S. 257 (1960) ........................................................ 13 Juan F. v. Rell, 2010 U.S. Dist. LEXIS 99455 (D. Conn. Sept. 22, 2010) .....38-39 Horne v. Flores, 129 S. Ct. 2579 (2009) .............................................................. 39 Kardibin v. Associated Hardware, 426 A.2d 649 (Pa. Super. 1981) ................... 11 Kelm v. Hyatt, 44 F.3d 415 (6th Cir. 1995) ........................................................... 25 Kothe v. Smith, 771 F.2d 667 (2d Cir. N.Y. 1985) ............................................... 35 Kramer v. Thompson, 947 F.2d 666 (3d Cir. 1991) ............................................. 37 Laub v. U.S. Dep’t of the Interior, 342 F.3d 1080 (9th Cir. 2003)........................ 28 Little v. Streater, 452 U.S. 1 (1981) ..................................................................... 26 Lynch v. Meridian Hill Studio Apts., Inc., 491 A.2d 515 (D.C. 1985)................. 10 MacLeod v. D.C. Transit System, Inc., 283 F.2d 194 (D.C. Cir. 1960) ............... 35 Madsen v. Women’s Health Ctr., 512 U.S. 753 (1994)........................................ 20 Mathews v. Eldridge, 424 U.S. 319 (1976) .......................................................... 26 M.L.B. v. S.L.J., 519 U.S. 102 (1996)................................................................... 26 McClelland v. Andrus, 606 F.2d 1278 (D.C. Cir. 1979) ...................................... 30 McMillian v. Wake County Sheriff’s Dep’t, 2010 U.S. App. LEXIS 22351 (4th Cir. Oct. 28, 2010).......................................................................................... 28 Metropolitan Opera Ass’n v. Local 100, Hotel Emples. & Restaurant Emples. Int’l Union, 239 F.3d 172 (2d Cir. 2001)...........................................37-38 Minor v. Springfield Baptist Church, 964 A.2d 205 (D.C. 2009) .................. 10, 40 Mitchell v. United States, 569 A.2d 177 (D.C. 1990) .....................................32-33 Mundine v. United States, 431 A.2d 16 (D.C. 1981)............................................ 32 Murphy v. Okeke, 951 A.2d 783 (D.C. 2008)....................................................... 17 National Audubon Soc. v. Watt, 678 F.2d 299 (D.C. Cir. 1982) .......................... 39 Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931) ........................................ 37 Neb. Press Ass’n v. Stuart, 427 U.S. 539 (1976).................................................. 37 Nicholas v. Wyndham Int’l, Inc., 373 F.3d 537 (4th Cir. 2004) ............................ 28 Parker v. Columbia Broadcasting System, Inc., 320 F.2d 937 (2d Cir. 1963)..... 38 * Cases chiefly relied upon.
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Patent Rights Prot. Group, LLC v. Video Gaming Techs., Inc., 603 F.3d 1364 (Fed. Cir. 2010)............................................................................................ 28 Pennsylvania v. Ritchie, 480 U.S. 39 (1987)........................................................ 27 Philadelphia Welfare Rights Organization v. Shapp, 602 F.2d 1114 (3d Cir. 1979) ..................................................................................................................... 41 Reavis v. United States, 395 A.2d 75 (D.C. 1978) ............................................... 33 Reid v. District of Columbia, 634 A.2d 423 (D.C. 1993)..................................... 40
* Richardson v. Easterling, 878 A.2d 1212 (D.C. 2005)............................................ ....................................................................................... 16, 17, 19, 21, 22, 33, 34, 38 Robinson v. Robinson, 886 A.2d 78 (D.C. 2005) ................................................. 18 Rozier v. Ford Motor Co., 573 F.2d 1332 (5th Cir.1978) ..................................... 39 Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992)............................... 39 Rugendorf v. United States, 376 U.S. 528 (1964) ................................................ 14 Schunk v. Schunk, 84 A.D.2d 904, 446 N.Y.S.2d 672 (1981).........................35-36 Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984)............................................. 38 Shelley v. Kraemer, 334 U.S. 1 (1948) ................................................................. 37 Shewarega v. Yegzaw, 947 A.2d 47 (D.C. 2008) ................................................. 11 Smith v. United States, 358 F.2d 833 (D.C. Cir. 1966) ........................................ 14 Stoll v. Gottlieb, 305 U.S. 165 (1938) .................................................................. 11 Thomas v. United States, 934 A.2d 389 (D.C. 2007) ........................................... 23 Thompson v. Madison County Board of Education, 476 F.2d 676 (5th Cir. 1973) ..................................................................................................................... 30 United States v. Baish, 460 A.2d 38 (D.C. 1983)................................................. 32 United States v. Boch Oldsmobile, Inc., 909 F.2d 657 (1st Cir. 1990) ................. 10 United States v. Brodie, 871 F.2d 125 (D.C. Cir. 1989) ...................................... 29 United States v. Farah, 2007 U.S. App. LEXIS 19310 (4th Cir. 2007)................ 29 United States v. Kirk, 877 F.2d 61 (4th Cir. 1989)................................................ 29 United States v. Lopez-Alvarez, 970 F.2d 583 (9th Cir. 1992).............................. 27 United States v. Martinez, 763 F.2d 1297 (11th Cir. 1985) .................................. 29 United States v. Noe, 821 F.2d 604 (11th Cir. 1987)........................................28-29 United States v. Ross, 511 F.2d 757 (5th Cir. 1975) ............................................. 29 United States v. Stever, 603 F.3d 747 (9th Cir. 2010) ........................................... 27 United States v. Swift & Co., 286 U.S. 106 (1932) .............................................. 41 United States v. W. T. Grant Co., 345 U.S. 629 (1953) ....................................... 20 United Student Aid Funds, Inc. v. Espinosa, 130 S. Ct. 1367 (2010) .............10-11 V. T. A., Inc. v. Airco, Inc., 597 F.2d 220 (10th Cir. 1979) ................................... 11 Washington v. Texas, 388 U.S. 14 (1967) ............................................................ 27 Wolff v. Laverne, Inc., 17 A.D.2d 213, 233 N.Y.S.2d 555 (1962) ....................... 35 * Cases chiefly relied upon.
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Zvonik v. Zvonik, 435 A.2d 1236 (Pa. Super. 1981)............................................. 12 Statutes D.C. CODE § 11-923.............................................................................................. 32 D.C. CODE § 16-802.............................................................................................. 40 D.C. CODE § 16-1001...................................................................................... 19, 32 D.C. CODE § 16-1004.................................................................................14, 21-22 D.C. CODE § 16-1005.......................................................................... 11, 14, 19, 22 D.C. CODE § 22-3131............................................................................................ 18 D.C. CODE § 22-3133...................................................................................... 18, 34 42 U.S.C. § 1983................................................................................................... 39 Court Rules FED. R. CIV. P. 60...........................................................................10-11, 37, 38, 39 FED. R. CRIM. P. 16 ............................................................................................... 29 D.C. R. EVID. 402.................................................................................................. 33 SUP. CT. CIV. R. 60.......................................................................................... 38, 40 D.V. UNIT RULE 1 ................................................................................................. 38 D.V. UNIT RULE 8 ........................................................................................... 28, 34 Treatises BLACK’S LAW DICTIONARY (3d ed. 1933) ............................................................ 10 BLACK’S LAW DICTIONARY (9th ed. 2009) ............................................................ 10 C.J.S., TRIAL.......................................................................................................... 35 EVIDENCE (3d ed. 1940)........................................................................................ 33 FEDERAL PRACTICE & PROCEDURE (2d ed. 1995 and Supp. 2009)..................10-11 MCCORMICK ON EVIDENCE (2d ed. 1972)............................................................. 33 MOORE’S FEDERAL PRACTICE (3d ed. 2007)......................................................... 10 RESTATEMENT (Second) OF JUDGMENTS (1980) ................................................... 10
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II. Statement of Issues Presented for Review
1. Where the Superior Court had no factual basis for a finding that
an intrafamily offense had occurred, it was without jurisdiction to enter any
order in Mische-Hoeges’s Civil Protection petition proceeding other than
acknowledging its lack of jurisdiction and dismissing the case. Any other
order is void.
2. No finding of an intrafamily offense could be found as all of
LeFande’s speech was constitutionally protected. LeFande speech to
Mische-Hoeges was innocuous and he made no threat to any person.
3. Even if the Superior Court had proper jurisdiction, such
jurisdiction ended upon the expiry of the Temporary Protection Order and
the one non-consensual extension thereof permitted by law. Any order
entered thereafter was void.
4. The September 21, 2010 Consent Order is void for a lack of due
process. LeFande was deprived of any discovery and improperly permitted
Mische-Hoeges to offer irrelevant evidence.
5. Where the Superior Court perpetuates an unlawful Temporary
Restraining Order against a Respondent, and deprives the Respondent of any
meaningful means to defend himself, a subsequent consent order is void as a
product of unlawful judicial cocerion.
2
6. A Consent Order which prohibits speaking to third persons not
a party to the case is void as an unlawful prior restraint upon freedom of
speech and association.
7. An allegation of a fraud upon the Court requires that the
Superior Court make a factual finding as to such allegations. LeFande
demonstrated that Mische-Hoeges had brought her Civil Protection case for
an improper purpose and was using the Consent Order for an improper
purpose. Had the Court made a finding of fact supporting LeFande’s
allegations, it should have vacated the Consent Order.
3
III. Statement of the Case On June 22, 2010, Mische-Hoeges filed a petition for a Temporary
Protection Order with the Superior Court. J.A. 8. On that date, the Superior
Court granted the Temporary Protection Order and compelled LeFande to
appear before the Court. J.A. 14. On July 2, 2010, LeFande’s attorney filed
a Motion for a Continuance of the July 6, 2010 hearing due to a scheduling
conflict. J.A. 26. On July 6, 2010, the Superior Court granted Mische-
Hoeges a Civil Protection Order by default and issued a warrant for
LeFande’s arrest. J.A. 35-38. LeFande appeared in Court the following day
and thereafter moved to vacate the Default Civil Protection Order. J.A. 44.
On July 19, 2010, LeFande moved for leave to conduct discovery.
J.A. 62. On July 23, 2010, the Court denied LeFande’s motion in its
entirety. J.A. 71. On July 29, 2010, the Court vacated the Default Civil
Protection Order and reinstated the Temporary Protection Order. J.A. 98-99,
106. On August 2, 2010, LeFande renewed his motion to conduct
discovery. J.A. 107. The motion was again denied in its entirety by the
Court on August 12, 2010. J.A. 137. Mische-Hoeges moved for leave for
a foreign witness to testify by telephone or for a de bene esse deposition.
J.A. 128. The Court granted Mische-Hoeges a hearing on this motion. J.A.
139. On August 16, 2010, LeFande moved to exclude the testimony of the
4
foreign witness as irrelevant. J.A. 140. On August 31, 2010, the Court
denied his motion. J.A. 177. On September 20, 2010, the date set for trial,
LeFande agreed to a Consent Order. Such Order was presented to the Court
on September 21, 2010. J.A. 231.
On November 8, 2010, LeFande moved to vacate, alter or amend the
Consent Order. J.A. 200. The Court denied the motion on December 20,
2010. J.A. 261. On January 3, 2011, LeFande made his Notice of Appeal.
J.A. 264.
5
IV. Statement of Facts Carolyn Mische-Hoeges is a District of Columbia Metropolitan Police
Officer. From August 2009 to April 2010, Mische-Hoeges was in a
relationship with LeFande and lived in his home in Arlington, Virginia for
most of that period. In early April of 2010, Mische-Hoeges and LeFande
began arguing about Mische-Hoeges’s lengthy leave of absence from the
Metropolitan Police Department, purportedly for a performance of duty
injury she claimed occurred on February 25, 2010. During the course of her
leave, Mische-Hoeges remained in LeFande’s house, working on completing
her university master’s thesis. LeFande, himself a former Metropolitan
Police Reserve Officer, suspected Mische-Hoeges was exaggerating her
injury claims so that she could remain home and complete her thesis on
time. Mische-Hoeges moved out of LeFande’s house on April 19, 2010.
On May 31, 2010, Mische-Hoeges made a complaint to the City of
Alexandria Police Department, claiming LeFande was stalking her. In
support of this allegation, Mische-Hoeges only claimed that LeFande had
called her a “whore” in a single email exchange. Mische-Hoeges admitted
to the Alexandria Police that she had no fear of LeFande. Mische-Hoeges
was denied a warrant and a protection order by the Alexandria magistrate
and the Alexandria Police Department reported the case as “unfounded”.
6
On June 22, 2010, Mische-Hoeges made the same allegations to the
Arlington County Police Department and was again denied a warrant and a
protection order.
On that date, Mische-Hoeges applied for and received a Temporary
Protection Order from the District of Columbia Superior Court, again falsely
claiming LeFande was stalking her. J.A. 8. Along with the ordinary terms
of the Temporary Protection Order, an additional term was included that
LeFande not contact Vadim Goremykin, a person not a party to the action
and not in any way familially related to Mische-Hoeges. J.A. 24. No
service of process of the Temporary Protection Order was ever made upon
LeFande.1
Also on June 22, 2010, Mische-Hoeges went to the Metropolitan
Police Department First District Headquarters, where she is assigned, and
convinced several of her friends and co-workers to take yet another police
report and again apply for a warrant on her behalf. Within this police report,
Mische-Hoeges used the report numbers from the Alexandria and Arlington
County police reports to falsely claim a history of domestic violence
between her and LeFande.
1 Mische-Hoeges previously presented an Affidavit of Process Server to the Court, J.A. 25, but the person described does not even remotely appear to be LeFande.
7
On July 6, 2010, Superior Court Judge Jose Lopez entered a default
Civil Protection Order against LeFande. J.A. 35. In addition to the ordinary
terms of the Civil Protection Order, Judge Lopez added that LeFande could
not contact Goremykin, or John M. Parodi, Mische-Hoeges’s ex-boyfriend.
J.A. 36. The Court further prohibited LeFande from “send[ing] emails or
text messages about petitioner to anyone…” Id. [all capital letters in
original]. This Order was vacated on July 29, 2010.
On July 19, 2010, LeFande, by counsel, moved for leave to conduct
discovery. J.A. 62. LeFande’s motion was denied in its entirety on July 23,
2010. J.A. 71. LeFande renewed his motion for leave to conduct discovery
on August 2, 2010. J.A. 107. LeFande’s renewed motion was again denied
in its entirety on August 11, 2010. J.A. 137.
On August 16, 2010, LeFande, by counsel, moved to limit the
testimony of a foreign witness never present in the United States for any of
the events alleged. J.A. 140. LeFande’s Motion in Limine was denied in its
entirety on August 31, 2010. J.A. 177.
On September 21, 2010, the parties offered a Consent Order to the
Court, providing inter alia, that LeFande agreed to remain 100 feet away
from Mische-Hoeges’s person. J.A. 231. Following the hearing on that
date, LeFande repeatedly requested a signed copy of the Order from the
8
Clerk of the Court. The Clerk of the Court informed LeFande on each
occasion that no order had been entered. Neither LeFande nor his attorney
has ever been served with a copy of the signed Consent Order.
On November 1, 2010, LeFande filed a civil suit against Mische-
Hoeges in United States District Court alleging false arrest, false
imprisonment, malicious prosecution, abuse of process, defamation and
deprivation of his civil rights under color of state authority. J.A. 207.
LeFande arranged for service of process upon Mische-Hoeges via Virginia
Sheriff’s Deputies and by private process server.
On November 4, 2010, LeFande received notice that Mische-Hoeges
intended to appear as a witness for the Fraternal Order of Police
Metropolitan Police Department Labor Committee (FOPMPDLC) at an
evidentiary hearing before the Public Employee Relations Board (PERB) in
which LeFande is representing the former Chairman of the FOPMPDLC as
his attorney. J.A. 225. The proceedings before PERB involve a claim for
reimbursement of some $244,000.00 in attorney’s fees by the former
Chairman for defense of a lawsuit which was initiated against him in 2001.
Mische-Hoeges was not a party to the proceedings and LeFande has no
information as to any reason why she would need to be present for the
9
hearing as she is infirm from testifying about communications between
LeFande and his client.
On that date, LeFande notified the counsel for the FOPMPDLC in the
PERB case of the pending litigation between LeFande and Mische-Hoeges.
On November 5, 2010, counsel for the FOPMPDLC moved for a
continuance of the PERB hearing. J.A. 227. Attached to the motion was an
executed copy of this Court’s September 21, 2010 Consent Order. This was
the first time that LeFande or his attorney learned that the order had been
entered. Counsel for the Respondent in the PERB case expressed concern
for the ability of LeFande to attend the PERB hearing if Mische-Hoeges was
also in attendance. Id.
Based on Mische-Hoeges’s conduct, on November 8, 2010, LeFande
moved to vacate, alter or amend the Consent Order under the Superior
Court’s Civil Rule 60(b). J.A. 200. Despite the evidence of Mische-
Hoeges’s fraudulent intent and bad faith in seeking a restraining order
against LeFande, on December 20, 2010, Judge Lopez refused to vacate the
Consent Order. J.A. 261. Judge Lopez made no inquiry into any of
LeFande’s factual allegations and made no findings of fact thereto. Id.
LeFande made a timely Notice of Appeal on January 3, 2011. J.A.
264.
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V. Argument 1. Standard of Review. This Court reviews a lower court’s denial of a Civil Rule 60(b) motion
for an abuse of discretion. Minor v. Springfield Baptist Church, 964 A.2d
205 (D.C. 2009); Clemencia v. Mitchell, 956 A.2d 76, 79 (D.C. 2008) (citing
Lynch v. Meridian Hill Studio Apts., Inc., 491 A.2d 515, 517 (D.C. 1985);
Firestone v. Harris, 414 A.2d 526, 528 (D.C. 1980)).
2. The September 21, 2010 Consent Order is void.
This Court should vacate the September 21, 2010 Consent Order as it
is void for lack of jurisdiction, it violates the United States Constitution and
it is a product of a judicial proceeding devoid of due process.
A void judgment is a legal nullity. See BLACK’S LAW DICTIONARY 1822 (3d ed. 1933); see also id., at 1709 (9th ed. 2009). Although the term “void” describes a result, rather than the conditions that render a judgment unenforceable, it suffices to say that a void judgment is one so affected by a fundamental infirmity that the infirmity may be raised even after the judgment becomes final. See RESTATEMENT (Second) OF JUDGMENTS 22 (1980); see generally id., § 12.
United Student Aid Funds, Inc. v. Espinosa, 130 S. Ct. 1367, 1377 (2010).
Rule 60(b)(4) applies only in the rare instance where a judgment is premised either on a certain type of jurisdictional error or on a violation of due process that deprives a party of notice or the opportunity to be heard. See United States v. Boch Oldsmobile, Inc., 909 F.2d 657, 661 (CA1 1990); [12 J. Moore et al., MOORE’S FEDERAL PRACTICE § 60.44[1][a] (3d ed. 2007)]; 11 C. Wright, A. Miller, & M. Kane, FEDERAL PRACTICE & PROCEDURE § 2862, p. 331
11
(2d ed. 1995 and Supp. 2009); cf. Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371 (1940); Stoll v. Gottlieb, 305 U.S. 165, 171-172 (1938).
Id. (discussing analogous FED. R. CIV. P. 60(b)(4)) [parallel citations
omitted]. See also V. T. A., Inc. v. Airco, Inc., 597 F.2d 220, 225 (10th Cir.
1979) (citing Arthur Andersen & Co. v. Ohio, 502 F.2d 834, 842 (10th Cir.
1974) cert. denied 419 U.S. 1034 (1974); Bass v. Hoagland, 172 F.2d 205,
209 (5th Cir. 1949) cert. denied 338 U.S. 816 (1949).
a. The September 21, 2010 Consent Order is void for lack of jurisdiction
Where there was no evidence of some sort of threat by LeFande and
no evidence of any intrafamily offense, Shewarega v. Yegzaw, 947 A.2d 47,
49 (D.C. 2008) (citing D.C. CODE § 16-1005(c)), committed by LeFande, the
Superior Court was without jurisdiction to enter any order, except an order
dismissing the case for lack of jurisdiction. LeFande could not consent to
the Court’s jurisdiction where none existed otherwise.
In a civil action, matters properly subject to stipulation by the parties are myriad so long as the resulting agreement “affects neither the court’s jurisdiction -- that is, does not attempt to create jurisdiction where there would otherwise be none -- nor the court’s due order of business or convenience.”
Goozh v. Capitol Souvenir Co., 462 A.2d 1140, 1142 (D.C. 1983) (quoting
Kardibin v. Associated Hardware, 426 A.2d 649, 655 (Pa. Super. 1981) and
12
citing Zvonik v. Zvonik, 435 A.2d 1236 (Pa. Super. 1981); Foote v.
Maryland Casualty Co., 186 A.2d 255 (Pa. 1962)).
i. The June 22, 2010 Temporary Restraining Order was issued in violation of District of Columbia law
On June 22, 2010, after being denied essentially the same protection
orders by the courts in Alexandria and Arlington, Mische-Hoeges applied for
a Temporary Protection Order in the District of Columbia. Mische-Hoeges’s
factual allegations against LeFande within her petition comprised solely of
the following:
• LeFande sent approximately seven e-mails in about five days. LeFande sent an e-mail on May 26, 2010 that stated, “I hope you get reassigned to prostitution because you really are a filthy whore.”
• On May 28, 2010, LeFande sent an e-mail that said, “Inquiring minds
want to know why are you such a whore?” Mische-Hoeges responded to LeFande and told him to stop contacting her.
• On May 31, 2010, LeFande contacted Goremykin by e-mail and
phone.
• On June 1, 2010, LeFande called Mische-Hoeges from a disguised number.
• On or about June 10, 2010, LeFande sent Mische-Hoeges a letter and a book.
• On or about June 12, 2010, LeFande sent Mische-Hoeges flowers.
13
• On or about June 22, 2010, LeFande e-mailed a “private video” of Mische-Hoeges to every employee at Goremykin’s place of work.
J.A. 8-9. During a hearing on that date, Mische-Hoeges admitted in open court
that she had absolutely no evidence or even personal knowledge which
supported her allegation that LeFande had emailed a video to any person.
Nevertheless, the Court accepted Mische-Hoeges’s allegations without any
evidentiary foundation whatsoever. It is one thing for a Petitioner to testify
that “the Respondent hit me” or “the Respondent telephoned me and
threatened to kill me”. It is another entirely for a Petitioner to testify
“someone told me they received an email and I think maybe the Respondent
sent it”. The first two statements are competent evidence properly
admissible in an ex parte hearing. The last statement isn’t any kind of
evidence at all. Yet this statement is exactly the kind of statement the Court
repeatedly accepted and relied upon without any further inquiry.
So to, to clarify I cannot, I can’t show conclusively that it came from him at this time but he’s the only person I, he’s the only other person who could have access to that video and I don’t know how he got access to it but –
J.A. 17.
Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257 [(1960)], the magistrate must be informed of some of the underlying circumstances from which the informant
14
concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528 [(1964)], was “credible” or his information “reliable.”
Aguilar v. Tex., 378 U.S. 108, 114 (1964).
The knowledge or information of the arresting officer at the time of arrest is relevant only where an arrest is predicated on that officer’s personal observations and information concerning the criminal act. The correct test is whether a warrant if sought could have been obtained by law enforcement agency application which disclosed its corporate information, not whether any one particular officer could have obtained it on what information he individually possessed. … In Brinegar v. United States, 338 U.S. 160, 176 (1949), the Supreme Court said, “The troublesome line… is one between mere suspicion and probable cause. That line necessarily must be drawn by an act of judgment formed in light of the particular situation and with account taken of all the circumstances.”
Smith v. United States, 358 F.2d 833, 835 (D.C. Cir. 1966) [parallel citation
omitted] cert denied 386 U.S. 1008 (1967).
Judge Epps failed to distinguish Mische-Hoeges’s mere suspicions
with competent evidence that could support a finding of probable cause2 that
LeFande had committed any offense. Under District of Columbia law, a
Temporary Protection Order may be issued only if the Court “finds that the
safety or welfare of the petitioner or a household member is immediately
endangered by the respondent”. D.C. CODE § 16-1004(b)(1). Nothing
2 Referred to as “good cause” in D.C. Code § 16-1005.
15
within Mische-Hoeges’s allegations even remotely supported this finding.
Mische-Hoeges, an armed Metropolitan Police Officer, made no allegation
within her affidavit that LeFande ever threatened her or any other person in
any way.3 Mische-Hoeges made no allegation within her affidavit that
would support any reasonable person fearing for her safety or the safety of
another person. Mische-Hoeges made no allegation within her affidavit that
LeFande ever assaulted her or any other person. Mische-Hoeges made no
allegation within her affidavit that LeFande ever attempted to follow,
approach or contact her in person since the time of the end of their
relationship. The Superior Court was completely without authority to issue
the Temporary Restraining Order.
ii. The default Civil Protection Order of July 6, 2010 was issued in violation of District of Columbia law
A hearing was set for July 6, 2010 for Mische-Hoeges’ application for
a Civil Protection Order. As reflected in the Superior Court’s own docket,
LeFande’s counsel moved on July 2, 2010 for a continuance due to a
scheduling conflict. J.A. 7. Despite the request for the continuance
3 After this defect was repeatedly pointed out to her in litigation, Mische-Hoeges, even with the assistance of four attorneys, has only been able make an ex post facto conclusory allegation, without explanation, that LeFande’s conduct was somehow “threatening”.
16
appearing in the Court’s docket, Judge Lopez entered a default Civil
Protection Order against LeFande on July 6, 2010 and issued a bench
warrant for him. J.A. 35-38.
At the July 6, 2010 hearing, Mische-Hoeges offered the Court no
further evidence than was offered in support of her petition for the
Temporary Protection Order. Judge Lopez failed to make any inquiry into
the evidentiary foundations of Mische-Hoeges’s allegations prior to the
issuance of the Civil Protection Order. See J.A. 31-33.4 Nevertheless, the
Judge issued a default Civil Protection Order against LeFande. Within the
Civil Protection Order, Lopez added several terms not present in the
Temporary Protection Order, all of which violated District of Columbia law.
The Court’s prohibitions against LeFande speaking to third persons not a
party to the proceeding were directly contrary to the prior instruction of this
Court of Appeals in Richardson v. Easterling, 878 A.2d 1212, 1217 (D.C.
2005). The Court’s prohibitions that LeFande could not email or text
4 Herein, Mische-Hoeges belatedly attempted to rehabilitate her inadequate June 22, 2010 testimony by testifying essentially that her boyfriend told her that he read a telephone text message that she thought was written by LeFande and in that text message, LeFande apparently spoke to the boyfriend about another email message. J.A. 33. This was double, or even triple, hearsay without any viable exception under the Rules of Evidence, if it was evidence at all, and was completely impermissible testimony, even for this type ex parte hearing.
17
message other persons about Mische-Hoeges amounted to an impermissible
content-based prior restraint of protected speech.
No probable cause existed5 that LeFande committed any crime where
he was lawfully entitled to make non-threatening, non-harassing comments
to Mische-Hoeges regarding her offensive behavior following the end of
their relationship and to make non-threatening, non-harassing statements to
other persons.6 D.C. Code specifically exempts such conduct from its
prohibitions against stalking as such conduct ultimately comprises speech
protected by the First Amendment.
Absent any kind of express or implied threat, none of the conduct
alleged to have been committed by LeFande can be said to not be entitled to
constitutional protection. See e.g., Hanzo v. deParrie, 152 Ore. App. 525,
540 (1998). See also Murphy v. Okeke, 951 A.2d 783, 788 (D.C. 2008)
5 The Superior Court employs a “preponderance of the evidence” standard to decide factual issues regarding a protection order proceeding. See Cruz-Foster v. Foster, 597 A.2d 927, 930 (D.C. 1991). As this matter was challenged prior to the taking of evidence, LeFande employed the criminal term “probable cause” to challenge Mische-Hoeges’s allegations. If each of Mische-Hoeges’s allegations were later proven, which they were not, they still could not support the elements of any offense under District of Columbia law. 6 No other person who LeFande is alleged to have communicated with ever appeared before the Superior Court and it is self-evident that Mische-Hoeges had no standing to bring any complaint or petition on any other non-family member’s behalf. See Richardson, supra (quoting Comm. for Creative Non-Violence v. Pierce, 814 F.2d 663, 672 (D.C. Cir. 1987)).
18
(“The Intrafamily Offense Act is designed not just to protect against actual
intrafamily violence, but also against the threat of such violence.”);
Robinson v. Robinson, 886 A.2d 78, 86 (D.C. 2005) (“[T]he broad remedial
purpose of the Intrafamily Offense Act . . . is to protect victims of family
abuse from both acts and threats of violence.”)
The District of Columbia City Council’s expression of legislative
intent as codified in D.C. Code § 22-3131 makes it clear that the conduct
that LeFande was accused of simply did not fall within the scope of the
prohibitions contained within D.C. Code § 22-3133.
The Council finds that stalking is a serious problem in this city and nationwide. Stalking involves severe intrusions on the victim’s personal privacy and autonomy. It is a crime that can have a long-lasting impact on the victim’s quality of life, and creates risks to the security and safety of the victim and others, even in the absence of express threats of physical harm. Stalking conduct often becomes increasingly violent over time. The Council recognizes the dangerous nature of stalking as well as the strong connections between stalking and domestic violence and between stalking and sexual assault. Therefore, the Council enacts this law to encourage effective intervention by the criminal justice system before stalking escalates into behavior that has even more serious or lethal consequences.
D.C. CODE § 22-3131(a). There simply did not exist any of the elements of “intrusions on the
victim’s personal privacy and autonomy” or “risks to the security and safety
of the victim and others”. Within Mische-Hoeges’s allegations, there
existed no threats, express or implied. Contrary to Mische-Hoeges’s false
19
statements in the Metropolitan Police Department report there was no
history of domestic violence or assault. Sending non-threatening email or
flowers to anyone cannot reasonably be seen to escalate “into behavior that
has even more serious or lethal consequences.” LeFande’s very limited
contact with Mische-Hoeges following their breakup amounted to nothing
more than ordinary discourse between former lovers. Absent some actual
reasonable basis for alarm or fear, LeFande’s speech violated no law.
A protection order issued under D.C. Code § 16-1001, et seq. requires
that LeFande have committed, or threatened to commit, an intra-family
offense against Mische-Hoeges. D.C. CODE § 16-1005(c). If conduct is not
a criminal offense under District of Columbia law, it cannot be the basis for
a protection order. Richardson, 878 A.2d at 1217-1218. Non-threatening,
non-harassing speech is specifically exempted from the District of Columbia
stalking statute as constitutionally protected conduct. D.C. CODE § 22-
3133(b). See Hanzo, supra. Non-threatening speech to third parties, while
possibly defamatory, “is not, however, a criminal act.” Richardson, 878
A.2d at 1217. The Superior Court’s reliance entirely upon non-criminal
conduct to issue a protective order under D.C. Code § 16-1005 was an
“improper factor” which could not “support the conclusion.” Coulibaly v.
Malaquias, 728 A.2d 595, 603 (D.C. 1999).
20
By Mische-Hoeges’s own allegations, LeFande called her a name
during one email exchange between them which occurred between May 26
and May 28, 2009. LeFande was alleged to have called Mische-Hoeges by
telephone once since the end of their relationship. LeFande was alleged to
have called and emailed Goremykin once. LeFande was alleged to have
emailed other persons once relating to Mische-Hoeges. Neither Parodi nor
Goremykin were mentioned at all within the factual recitals of Mische-
Hoeges’s affidavit in support of her application. Parodi’s relationship to any
of the events alleged by Mische-Hoeges was wholly unknown based upon
her application and affidavit.
An application for a protective order was not an invitation for Mische-
Hoeges to hogtie LeFande from any further expressions of his opinion
regarding her. See J.A. 36 (“Respondent shall not send emails or text
messages about Petitioner to anyone…”) [emphasis added, all capitals in
original].
Under general equity principles, an injunction issues only if there is a showing that the defendant has violated, or imminently will violate, some provision of statutory or common law, and that there is a “cognizable danger of recurrent violation.”
Madsen v. Women’s Health Ctr., 512 U.S. 753, 766 (1994) (quoting United
States v. W. T. Grant Co., 345 U.S. 629, 633 (1953)).
21
As discussed supra, there existed no violation of any law where
LeFande’s conduct comprised entirely of non-threatening, non-harassing
speech. Where there was no repetition of any act by LeFande, Mische-
Hoeges completely failed to demonstrate any “cognizable danger of
recurrent violation.” The Superior Court’s prohibition of contact with
Parodi and Goremykin “or any of his affiliants” [sic] directly conflicted with
this Court’s instruction in Richardson.
[A]n order prohibiting Easterling from making representations to others regarding Richardson’s allegedly culpable conduct at least arguably constitutes constitutionally impermissible prior restraint of speech; ordinarily, “equity does not enjoin a libel or slander.”
Richardson, 878 A.2d at 1217-1218 (quoting Comm. for Creative Non-
Violence v. Pierce, 814 F.2d 663, 672 (D.C. Cir. 1987)).
The Superior Court’s protection order prohibited LeFande’s contact
with Parodi and Goremykin. Neither person was before the Court and
neither made any type of complaint against LeFande. Mische-Hoeges was
not familially related to either person. Mische-Hoeges did not reside with
either person. The Superior Court’s protection order further prohibited
LeFande from any email contact with any third parties regarding Mische-
Hoeges (apparently including communications with his attorney).
If, upon the filing of a petition under oath, a judicial officer finds that the safety or welfare of the petitioner or a household member is
22
immediately endangered by the respondent, the judicial officer may issue, ex parte, a temporary protection order.
D.C. CODE § 16-1004(b)(1) [emphasis added].
In Richardson, supra, the Respondent was prohibited in an ex parte
Temporary Protection Order from “contacting Richardson’s ‘colleagues,
family members, or neighbors.’” Richardson, 878 A.2d at 1214.
Richardson’s prayer for relief [in his amended petition] was far narrower in scope than was the TPO issued by the trial court, and excluded any request for the constitutionally dubious remedy of barring Easterling from contacting or speaking with Richardson’s colleagues or neighbors.
Id. at 1214, n.4 [emphasis added].
Richardson speaks plainly to the “constitutionally dubious” nature of
issuing an order prohibiting contact with persons not presently before the
Court.7 As cited supra, a defamatory statement is not a criminal act and an
order which prohibited LeFande from making representations to others
regarding Mische-Hoeges’s conduct “at least arguably constitutes
constitutionally impermissible prior restraint of speech”. Richardson, 878
A.2d at 1217 [emphasis added].
7 D.C. Code § 16-1005 refers to, without providing a definition, “other protected persons”. The code section speaks immediately prior thereto of the standing of a parent or guardian to petition on behalf of a minor. No section within this title conveys standing to an adult to petition on behalf of another competent adult. Richardson clearly dictates to the contrary for the reasons stated herein.
23
iii. The Temporary Restraining Order was repeatedly extended by the Superior Court in violation of District of Columbia law
The Superior Court “may reissue a temporary protection order for a
period no longer than fourteen-days (14) duration from the date it is
reissued.” Thomas v. United States, 934 A.2d 389, 392 (D.C. 2007). The
Temporary Restraining Order was entered on June 22, 2010 and was to
expire on July 6, 2010. Contrary to the Court’s claim of consent, the
extension to August 30, 2010 of the Temporary Protection Order was done
by the Superior Court without any input from LeFande or his attorney and
certainly without his consent. See J.A. 99. The transcript of the August 30,
2010 hearing amply demonstrates that LeFande protested any further
extension, yet Judge Lopez ignored his own Court’s Rules and extended the
Order anyway.
MR. BRADSHAW: Your Honor, I do not consent to the TPO being in place any further. It’s been extended once. And as a matter of course it’s got 14 days.
There’s been no prior --no contact. There’s been no e-mail’s [sic]. There’s been no proximity. But the 14 days is a pretty hard-fast rule.
THE COURT: Again, the policy is that we maintain the status quo with these cases once we have a temporary protection order, and I will not make an exception to that.
24
Now, again, 14 days from now is the 13th of September. If counsel does not want to consent to extending it ‘til the 20th, then we have to come back on the 13th to extend it to the 20th. MR. BRADSHAW: It’s been extended once.
THE COURT: I know that.
MR. BRADSHAW: That’s my -- oh – it’s already been extended once, and I don't consent --
THE COURT: I understand.
MR. BRADSHAW: Okay.
THE COURT: Okay. See, I am going to extend it.
MR. BRADSHAW: Okay.
THE COURT: The policy is, the policy we’ll maintain in these cases we extend the TPO. Now, the question for you is whether you want to waste your time, come back in 14 days, which is the 13th of September, and, then, again, we’ll extend it ‘til the 20th. If you don’t want to consent, that’s what we’ll do.
MR. BRADSHAW: Well, I definitely don’t consent. THE COURT: Okay. So you want to come back on the 13th so that we can extend it to the 20th?
MR. BRADSHAW: Uh -- Your Honor, I have no choice. THE COURT: Okay. So we’ll continue the matter until a 13th --
MR. WITKOWSKI: Your Honor?
THE COURT: Yes, sir.
MR. WITKOWSKI: We would be available on the 13th if the Court --
25
THE COURT: No, no. We, we, we’re going to keep the 20th for the trial date. We’ll come back on the 13th at which time we’ll extend the TPO ‘til the 20th. Now, we're just going to extend it to the 13th. You’re confused?
MR. WITKOWSKI: Well, I’m going to be requesting attorney fees if we have to do that.
THE COURT: Well, I cannot tell you what to request and what not to request. They have a right under the law to just 14 days. And if they want to waste time and show their emotions about this case, they have that right to do that.
MR. BRADSHAW: I don’t perceive it to be a waste of time, Your Honor, because things can change in your mind as well as mine by that time. I wouldn’t do it as a waste of time.
THE COURT: It’s a waste of time.
[Pause.]
MR. BRADSHAW: Can you simply -- does it have to be by consent if you have already extended it – I can’t consent to it.
THE COURT: Okay, if you can’t consent you come back on the 13th and then I’ll just force it upon you…
J.A. 172-174.
b. The Consent Order is void for a lack of due process “[A] civil protection order is quasi-criminal in nature…” Kelm v.
Hyatt, 44 F.3d 415, 423 (6th Cir. 1995) BATCHELDER, C.J. concurring in part
and dissenting in part. See also Hoffman Estates v. Flipside, Hoffman
26
Estates, 455 U.S. 489, 500 (1982) (“prohibitory and stigmatizing effect” of
ordinance with only civil penalties). Where such proceedings potentially
deprive LeFande of Constitutional rights and civil liberties, including a right
to travel, a right of free association, freedom of speech and the right to own
and carry firearms, each and all of the procedural safeguards of a criminal
proceeding are necessary elements of the civil protection process. See e.g.
M.L.B. v. S.L.J., 519 U.S. 102, 116-119 (1996) (civil parental termination
proceedings affected associational rights protected by Fourteenth
Amendment); Little v. Streater, 452 U.S. 1, 10 (1981) (civil paternity
proceedings implicate criminal due process where subsequent failure to
comply with court’s order is punishable by imprisonment).
[Identification] of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
The private interest in the accuracy of a criminal proceeding that places an individual’s life or liberty at risk is almost uniquely compelling. Indeed, the host of safeguards fashioned by this Court over the years to diminish the risk of erroneous conviction stands as a testament to that concern. The interest of the individual in the outcome of the State’s effort to overcome the presumption of
27
innocence is obvious and weighs heavily in our analysis.
Ake v. Oklahoma, 470 U.S. 68, 78 (1985).
“To deny a defendant an opportunity to present competent proof in his
defense constitutes a violation of a fair trial and of due process.” Henderson
v. Fisher, 631 F.2d 1115, 1119 (3d Cir. Pa. 1980) (citing Clack v. Reid, 441
F.2d 801, 804 (5th Cir. 1971)).
Whether grounded in the Sixth Amendment’s guarantee of compulsory process or in the more general Fifth Amendment guarantee of due process, “the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’” Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)). This right includes, “at a minimum, . . . the right to put before a jury evidence that might influence the determination of guilt.” Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987); accord Washington v. Texas, 388 U.S. 14, 19 (1967) (“The right to offer the testimony of witnesses . . . is in plain terms the right to present a defense, the right to present the defendant’s version of the facts . . . . [The accused] has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.”). Moreover, “[w]hen evidence is excluded on the basis of an improper application of the [evidentiary] rules, due process concerns are still greater because the exclusion is unsupported by any legitimate state justification.” United States v. Lopez-Alvarez, 970 F.2d 583, 588 (9th Cir. 1992).
United States v. Stever, 603 F.3d 747, 755 (9th Cir. 2010).
i. LeFande was unlawfully deprived of any
discovery The Superior Court’s Domestic Violence Unit Rules provide for a
party to obtain discovery by written interrogatories or production of
28
documents. Such discovery is “limited to matters directly relating to the
incident or incidents of abuse alleged in the petition or answer, to medical
treatment obtained as a result of those incidents, and to any prayers for
relief.” D.V. UNIT RULE 8 (a)(1). On two occasions, Judge Lopez flatly
denied any discovery to LeFande, despite Mische-Hoeges’s repeated
reference to documentary evidence she intended to use at trial and
LeFande’s August 16, 2010 declaration that he did not possess the evidence
himself. J.A. 147.
“An abuse of discretion may be found where denial of discovery has
caused substantial prejudice.” McMillian v. Wake County Sheriff’s Dep’t,
2010 U.S. App. LEXIS 22351 (4th Cir. Oct. 28, 2010) (quoting Nicholas v.
Wyndham Int’l, Inc., 373 F.3d 537, 542 (4th Cir. 2004). “Prejudice is
established if there is a reasonable probability that the outcome would have
been different had discovery been allowed.” Patent Rights Prot. Group,
LLC v. Video Gaming Techs., Inc., 603 F.3d 1364, 1371 (Fed. Cir. 2010)
(quoting Laub v. U.S. Dep’t of the Interior, 342 F.3d 1080, 1093 (9th Cir.
2003)).
Under the theory advanced by the government, the prosecution, by design or inadvertence, could withhold discoverable inculpatory evidence until the defendant asserted a defense strategy based on the apparent nonexistence of that evidence, thus foreclosing other, possibly viable, defense strategies. Unless a court concluded, based on all the evidence introduced, that the case against the defendant was
29
“not strong,” the discovery violation would be considered harmless. We refuse to adopt such a rule, for it would encourage precisely the “trial by ambush” that the Federal Rules of Criminal Procedure were designed to prevent.
United States v. Noe, 821 F.2d 604, 608 (11th Cir. 1987) (citing United
States v. Martinez, 763 F.2d 1297, 1315 (11th Cir. 1985)). See also United
States v. Brodie, 871 F.2d 125, 129 (D.C. Cir. 1989) (“It is well-settled that
the Government cannot refuse to disclose discoverable statements of the
defendant under Rule 16 and nevertheless ‘surprise’ the defendant by using
those same statements at trial.”)
As a rule, and pursuant to a discovery order entered in this case, any defendant may inspect items in the Government’s possession that are “material to preparing the defense.” FED. R. CRIM. P. 16(a)(1)(E)(i). “A showing of materiality must include ‘some indication that the pretrial disclosure of the disputed evidence would have enabled the defendant significantly to alter the quantum of proof in his favor.’”
United States v. Farah, 2007 U.S. App. LEXIS 19310 (4th Cir. 2007)
(unpublished opinion quoting United States v. Kirk, 877 F.2d 61 at *2 (4th
Cir. 1989) (unpublished opinion quoting United States v. Ross, 511 F.2d
757, 762-63 (5th Cir. 1975), cert denied, 423 U.S. 836 (1975))).
The Superior Court’s denial of any discovery for LeFande, despite
Mische-Hoeges’s evident reliance on documentary evidence and alleged
statements of LeFande, was manifestly unjust, seriously impeded his right to
30
a fair trial and thus denied him due process under law. See McClelland v.
Andrus, 606 F.2d 1278, 1286 (D.C. Cir. 1979).
Due process mandates that a judicial proceeding give all parties an opportunity to be heard on the critical and decisive allegations which go to the core of the parties’ claim or defense and to present evidence on the contested facts. See Jackson v. DeSoto Parish School Board, 585 F.2d 726, 730 (5th Cir. 1978); Thompson v. Madison County Board of Education, 476 F.2d 676, 678 (5th Cir. 1973). The validity of the release and the special power of attorney upon which it is predicated are critical and decisive issues of petitoner’s claim. At virtually every stage of the proceedings, the district court’s rulings inhibited Mrs. Chatterjee’s ability to substantiate her allegations of fraud and frogery [sic]. The court’s procedural rulings placed Mrs. Chatterjee in the proverbial Catch-22. She had a property interest at stake and in order to protect that interest she sought procedures to attempt to prove that the release was fraudulently executed. We believe that she was erroneously deprived of this interest by virtue of the district court’s rulings. In this regard, petitioner was denied the procedural fairness that the fifth amendment assures to all persons who, whether internationally or by vicissitudes of fate, find their lives, liberty or property in the hands of the courts of the United States.
In re Complaint of Bankers Trust Co., 752 F.2d 874, 890-891 (3d Cir. 1984).
ii. The Superior Court improperly denied LeFande’s Motion in Limine
On August 16, 2010, LeFande moved to exclude the testimony of a
Russian national living in Italy. J.A. 140. By Mische-Hoeges’s August 9,
2010 Motion for Witness to Testify by Telephone or Leave to Conduct a De
Bene Esse Depostion, or in the Alternative for a Continuance, she alleged
that the witness, Goremykin, would “testify to the occurrence of certain facts
31
contained in the Petitioner and the Petitioner’s prayer for relief.” J.A. 128.
By his Motion in Limine, LeFande pointed out that Goremykin was
intending to testify solely regarding alleged events which occurred entirely
outside the District of Columbia and regarding alleged statements made by
LeFande to persons other than Mische-Hoeges. J.A. 140.
Mische-Hoeges claimed Goremykin was her boyfriend referred to in
the Petition. J.A. 128.
Dr. Goremykin currently lives in Italy, as he is employed by Istituto Agrario di San Michele all’Adige in Italy. He is a citizen of Russia and does not hold the necessary passport and visa allowing him entry to the United States.
J.A. 129.
He called. He, I, I don’t know how he obtained this number. He called my, my boyfriend’s student assistant who he, and he told her that, that he was his cooperation partner for, he’s a genetics researcher for a research he was doing in the United States and he, that, he obtained his cell phone number. Sorry. That day he also e-mailed, he also emailed [Goremykin] and said that he needed to talk to him about me but after that he called, he called his, [Goremykin’s] student researcher who gave him his cell phone number believing that he was another scientist and then, and then he called [Goremykin] on his cell phone.
J.A. 21-22.
Goremykin resides, and is employed, in Italy. According to Mische-
Hoeges, Goremykin received an e-mail and telephone call from LeFande
while Goremykin was in either Italy or Ireland. There was no allegation
32
within the record that LeFande called Goremykin in the District of
Columbia. By Mische-Hoeges’s own claims, Goremykin was disqualified
from entering the United States because of his passport. J.A. 129. There is
no allegation that LeFande, a Virginia resident, was present in the District of
Columbia for any of the events claimed by Mische-Hoeges.
The finding of “good cause” that an intrafamily offense occurred
within the District of Columbia is a necessary predicate for the issuance of
any kind of protective order under D.C. Code § 16-1001 et seq.
Under D.C. Code § 11-923 (b)(1) (1981), “the Superior Court has jurisdiction of any criminal case under any law applicable exclusively to the District of Columbia.” We have recently stated that this language is interpreted “to limit the jurisdiction of the Criminal Division of the Superior Court to criminal acts which occur within the geographical boundaries of the District of Columbia.” United States v. Baish, 460 A.2d 38, 40 (D.C. 1983) (emphasis added) (citing Jackson v. United States, 441 A.2d 1000, 1004 (D.C. 1982)); In re L.M., 432 A.2d 692, 695 (D.C. 1981); Mundine v. United States, 431 A.2d 16, 17 (D.C. 1981); In re A.S.W., 391 A.2d 1385, 1390 (D.C. 1978).
James v. United States, 478 A.2d 1083, 1085 (D.C. 1984). See also
Crutchfield v. United States, 779 A.2d 307, 334 (D.C. 2001).
In order for an intrafamily offense to have occurred in the District of
Columbia, the victim or the perpetrator must be located in the District of
Columbia. Banks v. United States, 926 A.2d 158, 165 (D.C. 2007) (quoting
Dyson v. United States, 848 A.2d 603, 610 (D.C. 2004) (citing Baish, 460
A.2d at 43)). While it may be presumed “that an offense was committed
33
within the jurisdiction of the court in which the charge is filed”, Mitchell v.
United States, 569 A.2d 177, 181 (D.C. 1990) (citing Adair v. United States,
391 A.2d 288, 290 (D.C. 1978)), there is no allegation whatsoever that
LeFande traveled to the District of Columbia to call or e-mail Goremykin,
and Goremykin evidently was overseas for the entirety of these events.
Further, communications to Goremykin could not support a finding of an
intrafamily offense. Richardson, supra. There certainly was no allegation
of any familial relationship between LeFande and Goremykin.
Evidence which is not relevant is not admissible.
D.C. R. EVID. 402.
Relevance, and the concepts it embodies, determines initially whether a proffered item of evidence will be admissible. Bogorad v. Kosberg, D.C.Mun.App., 81 A.2d 342, 343 (1951). See also 1 Wigmore, EVIDENCE §§ 11 & 12 (3d ed. 1940). First, the evidence, to be relevant, must relate logically to the fact it is offered to prove. Fowel v. Wood, D.C.Mun.App., 62 A.2d 636, 637 (1948). This logical relationship is described as a “tendency of evidence to establish a proposition.” MCCORMICK ON EVIDENCE § 185 at 435 (2d ed. 1972). Second, the fact sought to be established by the evidence must be material, which is to say that the party must establish that fact as a condition to prevailing on the merits of his case. MCCORMICK, supra at 434; Ahrens v. Broyhill, D.C.Mun.App., 117 A.2d 452, 455-56 (1955). Finally, the evidence must be adequately probative of the fact it tends to establish.
Reavis v. United States, 395 A.2d 75, 78 (D.C. 1978). As Goremykin was not present in the District of Columbia for any of
the alleged events and Goremykin was not the recipient of communications
34
which did terminate in the District of Columbia, he could not present
testimony regarding the commission of an alleged intrafamily offense in the
District of Columbia. None of the proposed testimony could have proven
any fact in support of a finding of such an intrafamily offense. The
testimony was irrelevant and should have been excluded from the case.
By Mische-Hoeges’s own recitals, the “Petitioner’s boyfriend’s place
of work” was “Istituto Agrario di San Michele all’Adige in Italy”. J.A. 129.
Italy is not in the District of Columbia. It is in Europe. E-mails from
Virginia to persons in Italy cannot be considered violative of any District of
Columbia law. James, Banks, supra. Further, communications to third
parties are not violative of D.C. Code § 22-3133. Richardson, supra.
If statements to third parties in Italy or Ireland “do not implicate the
Intrafamily Offenses Act” then such statements are not material “which is to
say that the party must establish that fact as a condition to prevailing on the
merits of his case”. Absent such materiality, there is no relevance. Absent
such relevance, the evidence, comprising all of Goremykin’s testimony and
the testimony of any other person regarding the same subject matter, should
have been excluded at the CPO hearing and there was no purpose for
conducting any deposition of him. See D.V. UNIT RULE 8(a)(1) (“the scope
of discovery is limited to matters directly relating to the incident…”) The
35
Superior Court nevertheless improperly permitted Mische-Hoeges to have
Goremykin testify. J.A. 177.
c. The Consent Order is void as a product of unlawful judicial coercion
From its onset, the Superior Court proceeding was blatantly biased in
favor of Mische-Hoeges and deprived LeFande of any sort of legitimate due
process. “Although the law favors the voluntary settlement of civil suits, it
does not sanction efforts by trial judges to effect settlements through
coercion.” Kothe v. Smith, 771 F.2d 667, 669 (2d Cir. N.Y. 1985) (citing
ABKCO Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988, 997 (2d Cir.
1983); Del Rio v. Northern Blower Co., 574 F.2d 23, 26 (1st Cir. 1978)
(citing Wolff v. Laverne, Inc., 17 A.D.2d 213, 233 N.Y.S.2d 555 (1962);
MacLeod v. D.C. Transit System, Inc., 283 F.2d 194, 195 n.1 (D.C. Cir.
1960); 89 C.J.S., TRIAL, § 577 at 355).
We view with disfavor all pressure tactics whether directly or obliquely, to coerce settlement by litigants and their counsel. Failure to concur in what the Justice presiding may consider an adequate settlement should not result in an imposition upon a litigant or his counsel, who reject it, of any retributive sanctions not specifically authorized by law.
Id. (quoting Wolff, 17 A.D.2d at 215).
In short, pressure tactics to coerce settlement simply are not permissible. Schunk v. Schunk, 84 A.D.2d 904, 905, 446 N.Y.S.2d 672
36
(1981); Chomski v. Alston Cab Co., 32 A.D.2d 627, 299 N.Y.S.2d 896 (1969). “The judge must not compel agreement by arbitrary use of his power and the attorney must not merely submit to a judge’s suggestion, though it be strongly urged.” Brooks v. Great Atlantic & Pacific Tea Co., 92 F.2d 794, 796 (9th Cir. 1937).
Id. Where LeFande was subjected to restraining orders issued and
extended without authority of law, subjected to unlawful limitations upon his
constitutional rights by operation of such orders, and deprived of any
discovery to meaningfully defend against them, the Superior Court
unlawfully coerced LeFande into accepting a Consent Order which he
otherwise would have never of accepted and the Court otherwise had no
jurisdiction to issue.
d. The Consent Order is void as an unlawful prior restraint upon LeFande’s freedom of speech and association
The Superior Court’s Order of September 21, 2010 was an
impermissible prior restraint on LeFande’s speech.
The 1933 order was extremely broad in its terms. It restrained the defendant from publishing any report, past, present or future, about certain named persons. It is true that the order arose out of a libel action. But even assuming, contrary to authority, American Malting Co. v. Keitel, 209 F. 331 (2 Cir., 1913), that it is proper for a federal court to enjoin a libel, the order here in question was not directed solely to defamatory reports, comments or statements, but to ‘any’ statements. In fact, from all that appears, it would seem that whatever
37
The Bradstreet Company published in 1932 was not libelous as to Lloyd Crosby. Lloyd Crosby contends that the order was entered on consent and that Bradstreet is bound by contract to refrain from publishing matter about him. We disagree. We are concerned with the power of a court of the United States to enjoin publication of information about a person, without regard to truth, falsity, or defamatory character of that information. Such an injunction, enforceable through the contempt power, constitutes a prior restraint by the United States against the publication of facts which the community has a right to know and which Dun & Bradstreet had and has the right to publish. The court was without power to make such an order; that the parties may have agreed to it is immaterial. The order dated July 8, 1933 was in violation of the First Amendment to the Constitution, see Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931). Shelley v. Kraemer, 334 U.S. 1 (1948) indicates that the First Amendment limits court action. The order was void, and under Rule 60(b)(4) of the Federal Rules of Civil Procedure, the parties must be granted relief therefrom.
Crosby v. Bradstreet Co., 312 F.2d 483, 485 (2d Cir. 1963) [parallel
citations omitted] cert. denied 373 U.S. 911 (1963).
In addition to the First Amendment’s heavy presumption against prior restraints, courts have long held that equity will not enjoin a libel. See [Neb. Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976)]; American Malting Co. v. Keitel, 209 F. 351, 354 (2d Cir. 1913); Kramer v. Thompson, 947 F.2d 666, 677-78 (3d Cir. 1991) (citing cases); Community for Creative Non-Violence v. Pierce, 814 F.2d 663, 672 (D.C. Cir. 1987) (“The usual rule is that equity does not enjoin a libel or slander and that the only remedy for defamation is an action for damages.”) (internal citation omitted). Indeed, for almost a century the Second Circuit has subscribed to the majority view that, absent extraordinary circumstances, injunctions should not ordinarily issue in defamation cases. See American Malting Co., 209 F. at 354 (“Equity will not restrain by injunction the threatened publication of a libel, as such, however great the injury to property may be. This is the
38
universal rule in the United States . . . .”) (citation omitted); Crosby, 312 F.2d at 485 (reaffirming the common law rule of American Malting).
Metropolitan Opera Ass’n v. Local 100, Hotel Emples. & Restaurant
Emples. Int’l Union, 239 F.3d 172, 177 (2d Cir. 2001) [parallel citation
omitted]. See also Richardson, supra; In re Halkin, 598 F.2d 176, 190 (D.C.
Cir. 1979) overruled on other grounds in Seattle Times Co. v. Rhinehart, 467
U.S. 20, 32 (1984); Parker v. Columbia Broadcasting System, Inc., 320 F.2d
937, 939 (2d Cir. 1963).
e. Upon demonstration of Mische-Hoeges’s fraudulent intent in seeking a restraining order, the Superior Court should have vacated the Consent Order and dismissed the matter with prejudice.
The Superior Court’s Civil Rule 60(b), applicable to these
proceedings by operation of D.V. Unit Rule 1, provides that the Court may
relieve a party from a final judgment or order for fraud, misrepresentation,
or other misconduct of an adverse party; or if it is no longer equitable that
the judgment should have prospective application.
The test for motions under Rule 60(b)(5) articulated by the Supreme Court says that a party may move for modification or termination of a judgment if factual or legal circumstances have changed to such an extent that compliance has become “substantially more onerous,” when a decree “proves to be unworkable because of unforeseen obstacles,” or “when enforcement of the decree without modification would be detrimental to the public interest.”
39
Juan F. v. Rell, 2010 U.S. Dist. LEXIS 99455 (D. Conn. Sept. 22, 2010)
(quoting Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992)). See
also Evans v. Fenty, 701 F. Supp. 2d 126, 148 (D.D.C. 2010); National
Audubon Soc. v. Watt, 678 F.2d 299, 307 (D.C. Cir. 1982).
The party seeking relief bears the burden of establishing that changed circumstances warrant relief, but once a party carries this burden, a court abuses its discretion “when it refuses to modify an injunction or consent decree in light of such changes.”
Horne v. Flores, 129 S. Ct. 2579, 2593 (2009) (citing Rufo, 502 U.S. at 383
and quoting Agostini v. Felton, 521 U.S. 203, 215 (1997)).
By attempting to interject herself into a labor arbitration proceeding to
which she was not a party, Mische-Hoeges amply demonstrated her
fraudulent intent in seeking these restraining orders against LeFande.8 As
articulated throughout these proceedings, Mische-Hoeges has never
genuinely sought any protection from LeFande. She has never alleged any
physical assault, or even physical proximation, by LeFande. She has never
alleged any type of threatening behavior. As fully set forth in his 42 U.S.C.
§ 1983 claim against Mische-Hoeges in United States District Court, J.A.
8 A moving party is not required to prove a “fraud upon the court” in order to reopen a judgment under Civil Rule 60(b). Such a showing is only necessary if a party seeks to reopen a judgment after one year from the entry of the judgment. See Rozier v. Ford Motor Co., 573 F.2d 1332 (5th Cir.1978).
40
207, Mische-Hoeges has abused the civil protection process solely for the
purpose of discrediting LeFande in his claims of Mische-Hoeges’s time and
attendance fraud committed against the Metropolitan Police Department.
Mische-Hoeges’s acts, including her insistence of attending an
evidentiary hearing to which she is not a party, solely to discredit LeFande
and prevent his prosecution of a claim for his paying client, demonstrate
Mische-Hoeges’s actual motivation for seeking these restraining orders.
Mische-Hoeges remains fully intent, not in avoiding LeFande, but in seeking
him out, forcing his violation of the terms of the September 21, 2010
Consent Order, so that she may continue to inflict injury upon his reputation
and career.9
Upon LeFande’s recital of allegations that Mische-Hoeges had abused
the Civil Protection Order process for a fraudulent and improper purpose,
the Superior Court was obligated to conduct a factual inquiry into these
allegations. It did not. J.A. 261.
In order for this court to meaningfully review the court’s exercise of discretion, unless the record otherwise indicates the basis for the trial
9 Bizarrely, Mische-Hoeges recently attempted to intervene in LeFande’s dismissed Superior Court criminal case after LeFande moved to seal his arrest record under D.C. Code § 16-802. Offering no substantive authority in support, Mische-Hoeges tendered a 225 page vitriolic pleading to the Court which failed to even remotely offer a plausible explanation why she was filing it, how she had any standing to file motions in a criminal case or by what theory of law the Court could possibly afford her relief.
41
court’s ruling, the trial court must make findings of fact and explain its reason(s) for either granting or denying a Rule 60(b) motion requesting relief for excusable neglect or good cause. See Johnson v. Lustine Realty Co., Inc., 640 A.2d 708, 709 (D.C. 1994) (holding that trial court abused its discretion by not making the necessary inquiry and in failing to address two factors that bore directly on the Rule 60(b) motion); see also Reid v. District of Columbia, 634 A.2d 423, 425 (D.C. 1993) (“A review of the record indicates that in denying appellants’ motion . . ., the trial court did not consider the factors enumerated in either Rule 60(b)(1) or in Starling.”). In this case, the court’s Order summarily denied appellants’ Rule 60(b) motion, without any indication of how the court considered the facts here…
Minor, 964 A.2d 205.
Mische-Hoeges’s abuse of the process dictates that, under these
changed circumstances, the Court should have vacated or amended the Order
as the only means of equitable relief for LeFande. Given Mische-Hoeges’s
demonstrated ill-will, fraud and abuse of the Consent Order, vacatur and
dismissal with prejudice was particularly appropriate therein.
[I]t is undisputed that the court has the power to modify a decree when the danger which the decree sought to prevent has been “attenuated to a shadow” or the decree if unmodified could become for the future “an instrument of wrong.”
Philadelphia Welfare Rights Organization v. Shapp, 602 F.2d 1114, 1120
(3d Cir. 1979) (quoting United States v. Swift & Co., 286 U.S. 106, 115, 119
(1932)). See also Chrysler Corp. v. United States, 316 U.S. 556, 562 (1942)
(citing Swift).
42
It is clearly evident that Mische-Hoeges has never been in any danger
of the harms that the Consent Order would have operated to prevent. It is
undisputed that LeFande has never approached Mische-Hoeges since the end
of their relationship or ever assaulted her. At the most, LeFande was
accused of speaking disparagingly of her, a constitutionally protected
activity. Rather than a shield against some never occurring harm, Mische-
Hoeges now improperly wields this Consent Order as a sword to
unjustifiably disrupt LeFande’s professional work and cause irreparable
harm to his reputation and career.
LeFande remains in need of sufficient latitude to conduct his legal
practice without the threat of Mische-Hoeges appearing as an uninvited
witness for an opposing party at every hearing and causing him to violate the
terms of the Consent Order. Judge Lopez simply suggested that LeFande
needs to arrive at the hearing before Mische-Hoeges does. Does he now
also suggest the parties camp out overnight to best the other? Mische-
Hoeges has demonstrated that she has no fear of LeFande, she never has and
she has never had any legitimate purpose for obtaining a restraining order.
43
VI. Conclusion For these reasons, and for such other reasons as the Court finds to be
good and sufficient cause, the September 21, 2010 Consent Order should be
VACATED as void.
Respectfully submitted, this 28th day of April, 2011, _________________________ Matthew August LeFande 4585 North 25th Road Arlington VA 22207 Tel: (202) 657-5800 Fax: (202) 318-8019 [email protected]
Appellant, pro se
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that two copies of the foregoing Opening Brief and a copy of the Appendix were served via United States Postal Service First Class Mail, postage prepaid, to the Appellee’s counsel of record at the following address, this 28th day of April, 2011.
Stephen Neal DiMuroGinsberg, P.C. 908 King Street, Suite 200 Alexandria, VA 22314
______________________ Matthew LeFande