Net central Investment Club Consortium

[Royal Gotti]

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

________, NEW JERSEY ________





SHAUN ROSIERE :

Petitioner(s) :

:

:

: COMPLAINT / MOTION Pursuant to:

: (a) U.S. is a Party to a Contract, 28 U.S.C.

: § 1346 (a) (2);

: (b) 28 U.S.C. § 1332, New Jersey Law

v. : governs this dispute;

: (c) Allegations of Attorney Misconduct &

: Unethical Conduct Grievance Pursuant to

UNITED STATES OF AMERICA : U.S. Dist. Court N.J., Civ.R. 104.1, establishes Respondent (s) : U.S.D.C. of New Jersey Jurisdiction; Judicial : Ethics and Professional Responsibility.



UNAUTHORIZED PRACTICE OF LAW BY JOHN H. FEINER, UNLICENSED COUNSEL PRACTCING IN THE STATE OF NEW JERSY, CONTRARY TO PUBLIC POLICY


1. The Plaintiff argues that the plea agreement contract should be void because John H. Feiner was practicing in an unlicensed manner as Pro Hac Vice by acting as the sole and only counsel who signed the plea contract in violation of Local Rule 101.1 ( c )(4) and Fed.R.Civ.P. 11 (see CHOICE OF FEDERAL RULE PURSUANT TO CONGRESSIONAL INTENT AND APPLICABLE LOCAL RULES). The plea contract contained waiver stipulation that encompassed Title 18 U.S.C. § 981; In Rem Civil case No. 05-2589. Thus an exclusion pursuant to Fed.R.Crim.P. 1 (a) (5) (B), which excludes any proceeding that would involve; “a civil property forfeiture for violating a federal statute,” from the rules of Fed.R.Crim.P.. Therefore, the civil rules govern counsel’s appearance, in any aspect of the underlining civil case matters (see CHOICE OF FEDERAL RULE PURSUANT TO CONGRESSIONAL INTENT AND APPLICABLE LOCAL RULES).


2. The Plea agreement contract encompasses three separate cases, as such two are criminal and one is civil. Local Civil Rule 101.1 states, in pertinent part: only an attorney at law of this court may file papers, enter appearances for parties, sign stipulations . . . Loc.Civ.R. 101.1 (c). Under Fed. R. Civ. P. 11, “the attorney of record who is a member of the bar of this court shall personally sign all papers submitted to the court or filed with the clerk.” Loc.Civ.R. 11. The remarks stated above are, the general words and remarks of Judge Garrett E. Brown, Jr.; See In: Receivables Purchasing Co.v. Eng’g & Prof’l Servs., 2010 U.S. Dist. LEXIS 89334 (3rd Cir.).


BACKGROUND


3. John H. Feiner, an unlicensed New Jersey counsel and non-member of the U.S.D.C. New Jersey Bar, was admitted as Pro Hac Vice in Crim. No. 08-629-5 only (Exhibits C & C-1). He has never been admitted to limited practice of law as Pro Hac Vice and never filed a motion to do so. John H. Feiner was engaged in the unauthorized practice of law as made clear in: In re Jackman, 165 N.J. 580, 585-86, 761 A.2d 1103 (N.J. 2000). John H. Feiner, engaged in negotiations with the government AUSA lawyers; encompassed in the September 17, 2009 plea contract Crim. No. 09-720-1 Information charge without being admitted as Pro Hac Vice or in any other capacity for that criminal case. John H. Feiner continued with the deception and represented a federal civil case No. 05-2589 and negotiated waivers. In the civil case he not only failed to file a Pro Hac Vice motion for admittance, he also did not comply with New Jersey U.S. Dist. Court Local Rule 101.1 (c) (2), which stipulates he must, in civil issues, make a payment to the New Jersey Lawyers' Fund for Client Protection as provided by New Jersey Court Rule 1:28-2 (a) (Exhibit B).


4. To reiterate, there are three separate and distinct federal cases in one plea contract, two criminal and one civil. Issues arise in Civ. No. 05-2589 and Crim. No. 09-720-1 where John H. Feiner never bothered to file for Pro Hac Vice status through a proper motion and use the local judicial sponsor. Pursuant to Local Civil Rule 101.1 (c) (1), “any member in good standing of the bar of any court in the United States . . . may in the discretion of the Court, on a motion, be permitted to appear and participate in a particular case.” The meaning of “particular case” in Local Civil Rule 101.1 (c) (1) is clear, the word “particular,” must be determined in its common meaning. Thus, under Webster’s New World College Dictionary, Fourth Ed. 2010, the meaning of “particular” is: “of or belonging to a single”; “separate and distinct . . . item.” As this relates herein, each case requires a particular review, for a motion for Pro Hac Vice being separate and distinct. Additionally, the U.S. District Court of New Jersey’s web page shows that “Filing Fees and Rates” stipulate that

“Admission to appear Pro Hac Vice (each case)” is the sum of $150.00; therefore, the Court itself stipulates that “each case” must be separate and distinct under Pro Hac Vice.


5. Pursuant to Local Civil Rules 101 (c) (2), “the order of the court granting a motion to appear pro hac vice shall require the out-of-state attorney to make a payment to the New Jersey Lawyer’s Fund for Client Protection as provided by New Jersey Court Rule 1:28-2 (a).” According to the New Jersey Attorney Index if Mr. Feiner had paid the required fee as stipulated in L.Civ.R. 101 (c) (2) his name would appear on the Index; of which it does not (Exhibit B). This rule was required for the civil case No. 05-2589 litigation and was not addressed.


6. Counsel John H. Feiner signed numerous court documents that were submitted on September 17, 2009 that were related to Crim. No. 09-720-1 and Civil No. 05-2589 (See: doc. 3, Waiver of Indictment; doc. 4, Waiver of Venue; doc. 5, Application to Plea guilty – filled out by Mr. Feiner; doc. 6, Plea Agreement; doc. 112, Certification of Counsel, located in 08-cr-00629-GEB section, and has no case number written in for the 09-720-1 case in item number one). All of these actions were practicing law without the proper license under New Jersey Law. The actions taken on the part of John H. Feiner are a crime in the state of New Jersey pursuant to N.J. Stat. Ann. Sec. 2C:21-22; the unauthorized practice of law is illegal in the state of New Jersey. Under N.J.R.P.C. 5.5(a): “A lawyer shall not practice law in a jurisdiction in violation of the regulation of legal profession in that jurisdiction . . .”. Under N.J.R.P.C. 8.4: “It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional conduct . . .”. The Supreme Court of New Jersey has stated that, “one is engaged in the practice of law whenever legal knowledge training, skill and ability are required.” See In re Jackman, 165 N.J. 580, 585-86, 761 A.2d 1103 (N.J. 2000). In re Jackman, the court considered whether an out-of-state attorney was engaged in the unauthorized practice of law when Jackman interviewed and counseled clients, prepared and signed documents to or on behalf of clients, and negotiated with lawyers. The Supreme Court of New Jersey determined that Jackman the out-of-state attorney, had taken on all the duties of a lawyer rendering legal services to clients and this under New Jersey law was practicing law without the proper license. When John H. Feiner does the same as Jackman, and violates the New Jersey law in the same manner and context to the surrounding elements of the plea contract that relate to the civil In Rem Forfeiture (05-2589) and all aspects of the 09-720-1 case, and the surrounding processes, then he is practicing law without the proper license.


7. The plea agreement contract and the surrounding process where John H. Feiner participated in the unlawful practice of law violates public policy. The entire ordeal generated numerous violations of New Jersey Rules of Professional Conduct by the following individuals: (a) unlicensed N.J. counsel John H. Feiner; (b) AUSA John Jay Hoffman; (c) AUSA Peter N. Katz. Thus the September 17, 2009 plea agreement contract must be deemed unenforceable. New Jersey Supreme Court’s Ruling that, “Contract that violate the New Jersey’s Rules of Professional Conduct Violate public policy, {777 F. Supp. 2d 830} and courts must deem them unenforceable.” See Jacob v.Norris McLaughlin & Marcus, 128 N.J. 10, 17, 607 A.2d 142 (1992); Chulsky v. HudsonLaw Offices, P.C., 777 F. Supp. 2d 823 (3rd Cir. 2011); “Contracts that violate the New Jersey Rules of Professional conduct violate public policy, and courts must deem them unenforceable.” See also generally; Azuna, LLC, v. Netpia.com, Inc., 2009 U.S. Dist. LEXIS 71036 (3rd Cir. 2009).



THE GOVERNMENT AUSA’S WERE AWARE OF LAWYER MISCONDUCT


1. The New Jersey Disciplinary Board for lawyers make it clear; pursuant to Rule 8.3 (a) of the N.J. Rules of Professional Conduct that, “a lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate profession authority.” A lawyer under Rule 8.3 (a) must report misconduct upon acquiring actual knowledge of said misconduct. AUSA’s: (a) John Jay Hoffman; and (b) Peter N. Katz; both willfully failed in informing the court of John H. Feiner’s unlicensed N.J. counsel status. Both AUSA’s received his Pro HacVice motion through the court’s ECF system for Crim. No. 08-629-5. Also both AUSA’s who practice within U.S.D.C. of N.J. are legally knowledgeable of the Local Rules and of Local Rule 101.1 (c) (4) mandates. Both are required to gain legal knowledge pursuant to the congressional mandate set forth in Title 28 U.S.C. § 530 (B) (a), “An attorney for the government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each state where such attorney engages in the attorney’s duties, to the same extent and in the same manner as other attorneys in the State.” Enacted Oct. 21, 1998, P.L. 105-277. Div A, Sec. 101 (b) [Title VIII, Sec. 801 (a)], 112 Stat. 2681-118.


2. AUSA Peter N. Katz clearly knew as he stated to the court on September 17, 2009, “In trying to get this all together I did not realize Mr. Feiner wasn’t from the district.” (Plea Proceeding transcript, pg. 2, lines 15-16). Yet, the plea agreement clearly has a California mailing address of counsel typed on it for Mr. Feiner (see Crim. No. 09-720-1, doc. 6, pg. 1). At that moment, AUSA Peter N. Katz knew and chose to remain silent and let John H. Feiner, a non-licensed N.J. lawyer, proceed to sign documents to be submitted to court, sign a plea contract that encompasses three separate cases, two criminal and one civil, and knew or should have known that only one Pro Hac Vice motion had been filed and it was in relation only to Crim. No. 08-629-5, and no others.


3. John H. Feiner has no sponsor for PRO HAC VICE related to the Information charge Crim. No. 09-720-1 or for the civil aspects of waiver stipulations related to Civil In Rem Case No. 05-2589, or the ability to sign any document to court that would relate to any civil issue at all. As previously addressed, the AUSA’s were more than aware of the civil In Rem Forfeiture, as they stipulated that forfeiture in the plea contract/agreement. Being that the forfeiture is considered a civil issue, AUSA should have known that Counsel Feiner lacked the legal authority to act as counsel on ANY civil issues. Lack of motions for Pro Hac Vice for the 09-720-1 case undercuts any possible inference this was a slight oversight for any of the above. The motion must be done through local counsel of record, who was not present. All in violation of Local Rule 101.1 (c) (4); Fed.R.Civ.P. 11; N.J.R.P.C. 3.3(a) (5) and 8.3(a). Counsel have a continuing duty to inform the court of any development which may conceivably affect an outcome of the litigation. See Fausari v. Steinberg, 419 U.S.379, 391, 95 S.Ct. 533, 540, 42 L.Ed 2d 521 (1975). This concept is not limited to counsel of John H. Feiner, this also includes AUSA’s of the Government and as such they both, John Jay Hoffman and Peter N. Katz had a duty to inform the court of the wrong doing being set forth by John H. Feiner and yet for some unreal reason, that not one logical person could phantom, chose silence.



FAILURE TO MONITOR PRO HAC VICE BY VINCENT J. SANZONE, JR. CONTRARY TO PROPER ROLE OF LOCAL COUNSEL


1. Attorney of record, Vincent J. Sanzone, Jr.’s, proper role of local counsel in the underlying litigation was insignificant. John H. Feiner was inadequately supervised and uneducated in Third District case law and the required District Court practice rules that mirror S.Ct. of New Jersey practice rules governing lawyer actions that are in place to safeguard Plaintiff Rosiere’s legal interest. According to the S.Ct. New Jersey practice rules local counsel must do more than merely sign off on a few pleadings or file a few initial documents. Local Rule 101.1 clearly indicates that local counsel is the counsel of record with attendant responsibilities, not out-of-state counsel admitted Pro Hac Vice. Local counsel took a de minimus role in Plaintiff Rosiere’s representation. Attorney Vincent J. Sanzone, Jr., was only in attendance at the bail hearing appearance in relation to any conference with Plaintiff Rosiere. Counsel failed to inquire as to the depth and complexity of the issues surrounding the case, therefore lacked the pertinent knowledge that the case surrounded two cases at that time; one criminal and one civil. Counsel failed to appear in all other conferences or legal proceedings. The court dockets in Crim. Nos. 08-629-5 and 09-720-1 show that only unlicensed New Jersey, out-of-state counsel John H. Feiner was active throughout.


2. The point at hand is that the listed attorney of record, Vincent J. Sanzone, Jr., was not the counsel who filed and signed and submitted any documents in Crim. No. 09-720-1. John H. Feiner, an out-of-state, unlicensed New Jersey counsel did so of his own accord, without any guidance, in Violation of Local Rule 101.1 (c) (4) and Fed.R.Civ.P. 11. Attorney of Record, Vincent J. Sanzone, Jr., was not present at the Plea Proceeding, and this is verified by the use of the proceeding transcript, page one (Exhibit D). The only counsel present was John H. Feiner, who at the time in question was performing the unauthorized practice of law. He tried to represent Plaintiff Rosiere in three separate legal cases that were encompassed in the plea agreement; one civil and two criminal. He was only Pro Hac Vice for Crim. No. 08-629-5. Mr. Feiner was not admitted as Pro Hac Vice for the criminal Information charge Crim. No. 09-720-1, nor did he pay the required fees for the civil case issue dealing with Civil No 05-2589, nor did he seek out the attorney of record to sign the required documents; instead he chose not to follow established law and court rules. The Supreme Court of New Jersey made this illegal act clear in: In Re Jackman, 165 N.J. 580, 585-86, 761 A.2d 1103 (N.J. 2000). Therefore, in Crim. No. 09-720-1, not one document was signed or reviewed by the attorney of record, or by any attorney that had the authority to represent Plaintiff Rosiere.


3. Since the case encompassed civil case No. 05-2589, Mr. Sanzone was required to be in attendance as local counsel and sign any stipulations or any related documents that give rise to the encompassed action. To make this issue clear, a plea agreement/contract that at any time encompassed a civil case and asks anything thereof in relation to it, to include a venue and waiver requirement, have to be in compliance with Local Rule 101.1 (c) (4). Local counsel must supervise the conduct of Pro Hac Vice attorneys and must appear before the court in all proceedings. See Occulto v. Adamar of New Jersey, Inc., 125 F.R.D. 611, 617 A 2 (D.N.J. 1989); Mr. Sanzone did neither.


4. Furthermore, like the U.S. District Court rules, the New Jersey bar has specialized practice requirements for all state licensed attorneys who practice in either court; Federal, or state. New Jersey asserts a strong policy interest in enforcing court rules for Pro HacVice counsel and the federal Third Circuit Courts have always honored New Jersey Practice Rules. Federal Third Circuit Courts have vigilantly scrutinized the practice of law and lawyer conduct, so that it does not degenerate into a jungle. See Vafiades v.Sheppard Bus Service, Inc., 192 N.J. Super. 301, 315, 469 A.2d 971, 979 (1983). New Jersey practice rules ensure that attorneys representing N.J. clients in Federal or State courts are sufficient in current case law precedents and practice and represent clients knowledgeable. New Jersey Federal and State courts rules guard against any out-of-state lawyer holding themselves out as experienced and competent New Jersey counsel when in reality they have zero expertise, thereby jeopardize the Sixth Amendment minimum protections. If attorney of record, Vincent J. Sanzone, Jr. would have adequately supervised the uneducated and unlicensed New Jersey counsel, John H. Feiner, and had taken the time to ask a few pertinent questions to derive some basic information about the case at hand, then all of the above issues that establish cause herein would or could have been avoided.



ALEGATIONS OF ATTORNEY MISCONDUCT & UNETHICAL CONDUCT GRIEVANCE FILING PURSUANT TO D.N.J. CIVIL RULE 104.1


1. A disciplinary proceeding in United States District Court (U.S.D.C.) for the District of New Jersey are under the powers articulated in D.N.J. Civil Rule 104.1, which provides, in part, that the court promulgates the Rules of Disciplinary Enforcement, in furtherance of its inherent power and responsibility to supervise the conduct of attorneys who are admitted to practice before it or admitted for the purpose of a particular proceeding (Pro Hac Vice). D.N.J. Civil Rule 103.1 provides, in part, that the Rules of Professional Conduct of the American Bar Association, as revised by the New Jersey Supreme Court, D.N.J. Civil Rule 104.1 (e) expressly establishes the United States District Court for the District of New Jersey’s jurisdiction to exercise disciplinary supervision of every attorney authorized to practice law or appearing before the court. D.N.J. Civil Rule 104.1 (e) (1) clarifies, in part, that when allegations of misconduct by an attorney come to the attention of the court, the Chief Judge, shall refer the matter to the appropriate state disciplinary body or, if the Chief Judge, concludes that further investigation is warranted, direct the Clerk to refer the matter for investigation to an attorney admitted to practice before the court in order to determine whether a formal order to show cause should issue [D.N.J. Civil Rule 104.1 ( e )(2)].


2. All lawyers practicing in the State of New Jersey obligate themselves to abide by the Rules of Professional Conduct adopted by the Supreme Court of New Jersey. Under the New Jersey Rules of Court, a temporary suspension is permissible where an attorney fails to cooperate with an ethics investigation; N.J.Ct.R. 1:20-3(g)(4), or an attorney’s conduct poses a substantial threat of serious harm to an attorney, a client, or the public,; N.J.Ct.R. 1:20-11(a). This is a formal allegation of attorney misconduct and grievance against the aforementioned attorneys upon the filing of this complaint with the court. The attorneys named in this complaint/grievance have violated the standards of ABA and N.J.R.P.C. and are subject to discipline. This is a serious matter, and the proof of unethical conduct is presented throughout this complaint, as well in Federal Civil Case No. 1:14-cv-04373-JBS-AMD, as each case requires disciplinary action.



CHOICE-OF-LAW


Plaintiff Rosiere has exercised his right under New Jersey statute regarding Choice-of-Law; September 17, 2009 contract with respect to the issues presented herein. The Choice-of-Law clearly is New Jersey to the plea agreement contract. The criminal cases arise out of U.S.D.C. of New Jersey, and the contract origin is New Jersey; as well as all events were taken place in New Jersey surrounding the contract formation. The New Jersey State applies the “most significant relationship” test to contract claims. See, Gilbert Sprvance Co., v. Pennsylvania Mfrs. Ass’n Ins. Co., 134 N.J. 96, 629 A.2d 885, 888 (N.J. 1993). Also see, State Farm Mut. Auto. Ins. Co., v. Simmons Estate, 84 N.J. 28, 417 A.2d 488 (N.J. 1980).


NEW JERSEY CONTRACT STATUTE OF LIMITATIONS


In New Jersey causes of action for breach of contract, fraud and others are governed by a six year statute of limitations; New Jersey Stat. Ann., Section 2A: 14-1. See, Fox v.Congress Fin. Corp. (in re Target Indus., Inc.), 328 B.R. 99 (3rd Cir. 2005). Within New Jersey the statute of limitations applicable to a recovery upon a contractual claim is six years. See, Lavin v. Bd. of Educ., 90 N.J. 145, 447 A.2d 516 (1982) (quoting N.J. Stat. Ann., Section 2A: 14-1). The statute of limitations for legal malpractice is six years; New Jersey Stat. Ann., Section 2A: 14-1. See, McHale v. Kelly, 2011 U.S. Dist. LEXIS 118888 (3RD Cir.).



CONCLUSION


The court should not condone the unauthorized practice of law by John H. Feiner, which is contrary to the State Law of New Jersey and State Supreme Court decision in, In ReJackman, 165 N.J. 580, 585-86, 761 A.2d 1103 (N.J. 2000). Unlawful practice of law violates public policy. Thus, the September 17, 2009 plea agreement contract must be deemed unenforceable. See, Jacob v. Norris McLaughlin & Marcus, 128 N.J. 10, 17, 607 A.2d 142 (1992); Chulsky v. Hudson Law Offices, P.C., 777 F. Supp. 2d 823 (3rd Cir. 2011); “Contracts that violate New Jersey Rules of Professional conduct violate public policy, and courts must deem them unenforceable.” See also generally; Azuna,LLC v. Netpia.com, Inc., 2009 U.S. Dist. LEXIS 71036 (3rd Cir. 2009). All other issues raised herein are self-apparent and require the court to address them in the court findings with factual support. Plaintiff Rosiere seeks to be reset to the same legal position he was in prior to unlicensed counsel, John H. Feiner’s, conduct in all areas stated herein and incorporated by reference.






For all the foregoing reasons the Petitioner respectfully request that this Court grant his Complaint/Grievance/Motion.



Respectfully submitted, Dated: July 21, 2014


Shaun Rosiere, Pro Se

(Signature on following page)



APPENDIX 3



District courts use Restatement (First) of Contracts § 40(1) to legally determine contract structure. See Restatement (First) of Contracts § 40(1), “The power to create a contract by acceptance of an offer terminates at the time specified in the offer.” The following case law supports this legal position:

• Senior Settlements, LLC, v. Growth Trust Fund, 2008 U.S. Dist. LEXIS 15639 (3rd Cir. 2008, Jerome B. Simandle, U.S. Dist. Judge).
  

• In re ABC – Federal Oil & Burner Co., 182 F. Supp. 928 (3rd Cir. 1960).
  

• Chain v. Wilhem, 84 F.2d 138 (CA 4 1936).
  

• Neff v. World Publishing Co., 349 F.2d 235 (CA 8 1965).
  

 

[Royal Gotti]

Well Pharaoh or your AKA selves where are your facts?

 

[Royal Gotti]

Here are a few more fact for Pharaoh and his AKA selves??? I Royal Gotti pulled these of the docket this morning.

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

________, NEW JERSEY ________





SHAUN ROSIERE :

Petitioner(s) :

: MOTION / COMPLAINT for Relief from

: Judgment or Order Pursuant to Fed.R.Civ.P.

: 60(d)(1),(3) and

v. :

:

UNITED STATES OF AMERICA : MOTION/COMPLAINT for Relief Pursuant to:

Respondent(s) :

: (a) N.J. Stat. Ann. § 2A:14-1; (b) Title 5 U.S.C.

: § 552; (c) Fed.R.Civ.P. 44; (d) Title 18 U.S.C.

: § 1331; (e) Fed.R.Crim.P. 32 Violation; (f) Sixth

: Amendment Violation of Citizen Rosiere;

: (g) Due Process Violation of Citizen Rosiere;

: (h) U.S. is a Party to a Contract; Title 28

: U.S.C. § 1346(a)(2); (i) N.J. Ct. Rule 3

: 9-1(b),(c); (j) Title 28 U.S.C. § 530B;

: (k) Title 28 U.S.C. § 1367

:

: Venue Pursuant to: Title 28 U.S.C. § 1391

____________________________________________________________




Plaintiff Rosiere Seeks Relief from Judgment Pursuant To Federal Rules Civil

Procedure 60 (d)(1),(3).


ARGUMENT



1. Plaintiff Rosiere argues that John H. Feiner’s “Legal Bill” (Exhibits 1-2), as well as, Letters for Discovery/Physical Evidence Review via the government (Exhibits 3-19) are admissible under the Federal Rules of Evidence 104, 401, 402, and 901 for the purpose of: a) legal Sixth Amendment service by counsel which was below the standard set by ABA; and (b) provides sufficient support to show prejudice under Strickland and “fraud on the court.” The purpose of the rules is to assure fairness and factual determinations.


(a) Under Federal Rule of Evidence 104(b) a document is authentic when the proponent offers evidence sufficient to support a finding that the document is what the proponent says it is.


(b) Under Federal Rule of Evidence 901 a document, under appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together, all the circumstances are admissible. See case precedent: McQlueeney v. Wilminton Trust Co., 779 F.2d 916 (CA 3 1985); “All that is required is a foundation from which the fact-finder could legitimately infer that the evidence is what the proponent claims it to be.” Also see:

• United States v. Isley, 386 Fed.Appx. 117 (CA 3 2010)
  
  
• United States v. Reilly, 33 F.3d 1396 (CA 3 1994)
  
  
• United States v. Tulner, 718 F.3d 226 (CA 3 2003)
  
  
• Link v. Mercedes –Benz of N.Am., Inc., 788 F.2d 918 (CA 3 1986)
  
  (c) Under Fed.R.Evid. 401, “relevant evidence” is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Plaintiff Rosiere argues that the definition of relevant evidence is very broad and Federal Rule of Evidence 401 does not raise a high standard. See case precedents: Gibson v. Mayor of Wilmington, 335 F.3d 215 (CA 3 2003); United States v. Puz, 124 Fed.Appx. 743 (CA 3 2005); United States v. Elwell, 515 Fed.App. 155 (CA 3 2013).
  
  
  (d) Under Federal Rule of Evidence 402, all relevant evidence is admissible.
  
  Plaintiff Rosiere argues that John H. Feiner’s bill, in context, is admissible as evidence; also the signature matching other documents on file by counsel, John H. Feiner, with the court in Criminal Case Nos. 09-720-1 and 08-629-5. The letters submitted by AUSA’s are clearly self-apparent and admissible.
  
  
  2. John H. Feiner’s billing (Exhibits 1-2), in regards to criminal case Nos. 09-720-1 and 08-629-5, is absent any billable hours for reading the PSI report, or any billable hours for verifying information within the PSI report. There are zero legal services rendered by counsel in relation to the PSI report and the surrounding ABA minimum duties to prepare for sentencing. Therefore, being that counsel (Feiner) never read the PSI report or even tried to verify any information therein, he is in violation of ABA Standards of counsel minimum duties. Thus, Plaintiff Rosiere was, in essence, without counsel.
  
  

• Three excerpts as set forth in the ABA prescribed minimum duties of counsel surrounding the sentencing procedures are outlined below (Exhibit 20):

(a) “investigate the particular judge’s sentencing practices”;

(b) “seek to verify all information contained in the presentence report, and be prepared to supplement or challenge it if necessary;”

(c) “present to the court any ground which will assist in reaching a proper position favorable to the accused, including any favorable information not contained in the presentence report.”

• The ABA minimum duties for counsel are found in ABA Standards for Criminal Justice, 4-8.11 (The Defense Function)(3rd ed. 1993). Counsel’s responsibilities at sentencing and minimum ABA Standards are found in: Oesby v. United States, 398 A.2d 1, 6-7 (D.C. Cir. 1979); and United States v. Pinkney, 551 F.2d 1241, 1248-51 (D.C. Cir. 1976).
• Counsel, John H. Feiner, has a constitutional duty to make reasonable investigations. See, Strickland v. Washington, 466 U.S. 660,691 (1984), the Sixth Amendment requires investigation and preparation. The failure to investigate is ineffectiveness at its core; See, Kimmelman v. Morrison, 477 U.S. 365 (1986). The Court of Appeals has reversed convictions due to ineffective pretrial consultation, investigation and preparation. See, Byrd v. United States, 614 A.2d 25 (D.C. 1992); Sykes v. U.S., 585 A.2d 1335 (D.C. 1991); Harris v. U.S., 441 A.2d 268 (D.C. 1982); Asbell v. U.S., 436A.2d 804 (D.C. 1981); Daniels v. Woodford, 428 F.3d 1181 (CA 9th Cir. 2004); Hendricks v. Vasques, 974 F.2d 1099 (CA 9th Cir. 1992); United States v. Tucker, 716 F.2d 576 (CA 9th Cir. 1982); Also see, Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L.Ed.2d 471 (2003); Hollingsworth v. AG, 429 Fed.Appx. 958 (CA 9th Cir. 2011).

3. Plaintiff Rosiere contends that the non-billing of Mr. Feiner has just recently come to light. In the last few months the billing was conveyed to Mr. Rosiere and could not have been used at an earlier date. The availability and knowledge of the New Evidence, counsel’s non-billing, was not available to Mr. Rosiere when he filed his original case No. cv-11-4404 (JBS) back in 2011. As with all information and data requested by Mr. Rosiere through the past years, it was to be sent to two locations: (1) Rosiere’s place of imprisonment, and (2) the other to be sent to 7380 S. Eastern Ave., # 124265, Las Vegas, NV 89123. The second location for duplicate data was to secure materials in the event that the case material became lost or stolen. The billing information was never conveyed or sent to Mr. Rosiere in prison by Mr. Feiner. He only sent the billing to Nancy Brantley in CA, where it was placed for storage until Mr. Rosiere returned from prison.

• The billing was sent in response to a California Bar Complaint.
• Mr. Feiner has been disbarred in the state of California and stipulated to eight counts of misconduct in six different matters. Five of the six matters involved criminal law (Exhibits 21-22).
• He has also been placed on Inactive Status in the state of Colorado (Exhibit 23).
• Mr. Feiner is NOT a member of the bar in the state of New Jersey (Exhibit 24).

4. Plaintiff Rosiere has written the court and the DOJ or its progeny multiple times with regard to the issue of unfound records, and it also includes FOIA request; as well as lost records due to the negligence of BOP care during inmate Rosiere’s transport over the last six to seven months from the camp in Florence, CO to Sandstone, MN where he is currently awaiting surgery. Plaintiff Rosiere has tried with all due diligence to recover all, or as many case records as possible. When the non-billing was unveiled in the files, on or about May 2014, Mr. Rosiere discovered that there was no billing for services rendered in relation to the PSI report and other issues addressed herein. Therefore, Mr. Rosiere diligently reviewed case law and prepared this legal document/complaint/motion for the court.


5. Throughout the past years Plaintiff Rosiere has continuously asked the court to grant discovery, and to date no one has addressed the issue. The requests for discovery began with the initial first filing in Colorado, Civil Action No. 05-cv-02589 (WDM-KLM) in 2005, and has continued up through the present (2014) in Criminal Actions 08-629-1 (JBS) and 09-720-1 (JBS). Thus, Plaintiff Rosiere’s due diligence cannot be questioned.


6. Mr. Feiner’s failure to read/review the PSI report or submit a brief to the court and cover up his misconduct is fraud upon the court and also fraud upon Mr. Rosiere. He was silent on the issue and had a duty to inform the court of his failed legal performance. Under the discovery rule for fraud, statute of limitations does not accrue until one learns of, or reasonably should have learned, that one has been harmed by the conduct. See, Commer. Props., LLC v. Aslansan, 490 B.R. 675 (3rd Cir. 2013).


(a) Mr. Rosiere argues that pro se litigants are laymen not a professional lawyer of the legal process thus, when fraud is unveiled access to the justice system creates fairness to all who seek legal recourse.


(b) See Generally, Accord Regents of the Univ. of California v. Bakke, 438 U.S. 265, 318 n. 53, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978); “an underlying assumption of the rule of law is the worthiness of a system of justice based upon fairness to the individual.”


(c) In general, the district court must hear new allegations of fraud based upon evidence extrinsic to the record. New evidence, the “legal bill” of counsel, Mr. Feiner. See Generally; Doria Mining & Eng’g Corp. v. Morton, 608 F.2d 1255, 1257-59 (9th Cir. 1979); Home Prods Int’l, Inc. v. United States, 633 F.3d 1369 (CA Federal Circuit 2011); Drobny. Comm’r, 113 F.3d 670 677 (7th Cir. 1997); Billingsley v. Comm’s 868 F.2d 1081, 1085 (9th Cir. 1989); Coleman v. Barnhart, 2005 U.S. Dist. LEXIS 14512 (9th Cir.); Mor Co. v. Roselle State Bank and Trust Co., 1979 U.S. Dist. LEXIS 8111 (7th Cir.).

(d) Plaintiff Rosiere argues that fraud on the court by a judicial officer (lawyer) has no statute of limitations. The Third Circuit has adopted Marshall v. Homes, 141 U.S. 589, 35 L.Ed 870, 12 S.Ct. 62 (1891); See also Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238, 64 S.Ct. 987, 88 L.Ed. 1250 (1944). These cases, and others that are similar set precedent. Courts have jurisdiction and a duty to entertain a complaint based on a past decision that was obtained by fraud on the court; anytime.

(1) Fraud on the court, the proper basis for complaint filed to grant court jurisdiction is Rule 60 (d)(i), (3); when the fraud is penetrated by an Officer of the court; which John H. Feiner, counsel for Mr. Rosiere, did in his case.

(2) Fraud on the court has no time limit and the court has a duty to address such fraud. In addition, the Supreme Court has established the rationale allowing a defrauded litigant (Mr. Rosiere) to re-enter the fray.

(3) Counsel’s (Mr. Feiner) fraud was an attempt to subvert the integrity of the court itself:

(i) Fraudulent non-disclosure to the court when counsel is silent.

(ii) Officer of the court have a duty to be completely honest in conducting litigation.

(iii) Officer s are duty bound by Title 18 U.S.C., Section 3661 to; inform the court of the correct and/or missing data before a sentence is imposed.


7. The effect of John H. Feiner’s failure to investigate Plaintiff Rosiere’s PSI report and verify all the information contained within caused the sentencing court to rely on inaccurate information and thus, the sentencing court abused its discretion and violated Plaintiff Rosiere’s due process rights. Courts abuse their discretion and violate the defendant’s rights to due process where it relies on inaccurate information at sentencing. See, United States v. Trucker, 404 U.S. 443, 446-47, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); United States v. Baylin, 696, F.2d 1031 (3rd Cir. 1982); United States v. Curran, 926 F.2d 59 (CA 1991).

• The court relied on the inaccurate information in the PSI report. See, Rosiere v. U.S., 2012 U.S. Dist. LEXIS 137115 (3rd Cir.). Statement from the Court: “the court will not be able to determine the sentence for your case until the presentence report has been completed, both you and the government had an opportunity to read the report and challenge any facts reported by the probation officers.”
• Clearly, Judge Garrett E. Brown, Jr. could not “determine the sentence,” without input from the PSI report. Thus the inaccurate information effects, or could have affected his judicial decision at sentencing.

8. Plaintiff Rosiere argues that the sentencing court violated Federal Rule Criminal Procedure 32(i)(1)(A). At sentencing, the court: “must verify that the defendant and the defendant’s attorney have read and discussed the presentence report.” United States v. Gallard, 855 F.Supp. 2d 406 (3rd Cir. 2012) states that, “Fed.R.Crim.P. 32 . . . Requires the court to verify that the defendant and the defendant’s attorney have read and discussed the PSR.” United States v. Stevens, 223 F.3d 239 (CA 3 2000) and United States v. Soltero, 510 F.3d 858 (CA 9 2007) both state that “Fed.R.Crim.P. 32(i)(1)(A) requires a district court to verify that the defendant and the defendant’s attorney have read and discussed the presentence report (PSR).” United States v. Marcial-Gonzalez, 304 Fed. Appx. 589, (CA 9 2008) also states that the client and counsel must read and discuss the PSR (Judicial remedy for 32(i)(1)(A) violation tied to prejudice resulted in recommencing and evidentiary hearing).


9. Plaintiff Rosiere contends that Congressional words must be interpreted in accordance with their ordinary meaning; thus words like “verify” within Fed.R.Crim.P. 32(i)(1)(A) are clear. See Generally; United States v. Knox, 32 F.3d 733, 744 (3rd Cir. 1994); Am Tobacco Co. v. Petterson, 456 U. s. 63, 68, 102 S.Ct. 1534, 1537, 71 L.Ed. 2d 748 (1982); E.I. Depont De Nemours & Co. v. United States, 460 F.3d 515 (CA 3 2006).


10. The Judge in the case never verified that Plaintiff Rosiere’s counsel read and reviewed the PSI. The sentencing transcript makes the record clear that the Judge never did ask Plaintiff Rosiere’s counsel if he had read the report.


See Sentencing transcript: page 7, line 25 through page 9, line 24 reads as follows:


THE COURT: All right. And also, one other thing we have -- and I referred to that before -- we have objection time. Before the final report was prepared June 9th Mr. Rosiere said he had several objections -- the report was not complete -- but he didn’t say what those objections were. So again, defendant being represented by counsel, I’ll ask you what were the objections that weren’t timely filed there?


MR. FEINER: I don’t know.


THE COURT: You don’t know. Okay.


MR. FEINER: I don’t know what Mr. Rosiere had in mind.


THE COURT: He says, “I have called counsel and as of today zero responses.” So, I don’t know if you were the counsel referred to, or he meant other counsel. I don’t know.


MR. FEINER: I’m sure I was.


THE COURT: Okay. All right. So, that’s where we stand. And I’m trying to determine whether the defendant had read the presentence report, whether there were any additions or corrections, and Mr. Feiner refers me to Mr. Rosiere. Mr. Rosiere.


MR. ROSIERE: Your Honor, I did talk to my lawyer after I sent in that letter. I went through a whole list of (sic) him with the objections and he told me he timely filed it with the Court. And at that point I presumed that there’d be another report coming forthwith and I haven’t received one. So we talked -- I think it was Sunday I talked to him and it was supposed to be filed, if I’m not mistaken, on a Monday, but then after that I got a report stating that just my objections -- that I didn’t have anything of point. The paperwork on it clearly stated to give all my objections to my lawyer and through him to come to the Court. So, I just told the Court, because I called Mr. Feiner here several times and I didn’t hear from him until Sunday and I guess it was due on a Monday, if I’m not mistaken, the day before.


THE COURT: Sunday when?


MR. ROSIERE: If it wasn’t a Sunday it was the day before the due date. There is like so many dates in the cover letter.


THE COURT: Do you have a copy of that letter you’d like to share with the Court as to what your objections were?


MR. ROSIERE: No, my objections were talked to on the phone.


THE COURT: Oh, you talked to him on the phone?


MR. ROSIERE: I talked to him on the phone the day before it was due.


MR. FEINER: I didn’t file them because they were immaterial.


11. John H. Feiner starts off with, “I don’t know;” then, “I don’t know what Mr. Rosiere had in mind.” Then when finally pressed by the court for an answer of some kind other than the “I don’t know” response, he comes up with “I didn’t file them because they were immaterial.” Once Mr. Feiner’s statements to the court became inconsistent and contradictory; the court or any logical person as a reasonable fact finder would find Mr. Feiner’s statements unreliable. Thus, once a statement made by a judicial officer becomes contradictory the Court must become an Inquisitor and expand on the required base of reasoning.


12. In Plaintiff Rosiere’s case, Judge Brown should have asked Mr. Feiner why are Mr. Rosiere’s objections immaterial, when just a moment ago you stated to the Court that you “don’t know;” you “don’t know what Mr. Rosiere had in mind.” Further fact finding would have disclosed that Mr. Feiner “did not know” because he had not read or reviewed the PSI report prior to sentencing or for that matter, not at all. Also, the Judge never verified that Mr. Feiner read the PSI report. Based on Mr. Feiner’s own billable hours he never read the PSI report, nor did he bill for any additional time in preparing the appropriate and required document for court as his client requested. As well, it is apparent from his statements made in court that he just plain “did not know” what his client was even talking about.


13. John H. Feiner failed to read the PSI report and then failed to disclose this fact is in direct violation of the ABA duties required by counsel under New Jersey Rules of Professional Conduct 3.3(a)(5), which states that “a Lawyer shall not knowingly fail to disclose to the tribunal a material fact knowing that omission is reasonably certain to mislead the tribunal.” Also, New Jersey R.P.C. 3.3(a)(1) states, “A lawyer shall not knowingly . . . Make a false statement of material fact or law to a tribunal.” How can issues of inaccurate information be “immaterial”, when Mr. Feiner never knew what was written in the PSI report nor did he do any of the required investigative work under ABA duties?

• Mr. Feiner is not eligible to practice law in CA as he has been disbarred. He stipulated to eight counts of misconduct in six cases, five of which were federal cases (Exhibits 21-22). As well, his license in CO has been put on inactive status (Exhibit 23).

1. ABA R.P.C. 1.1, which states, “a lawyer shall provide competent representation to client . . . the legal knowledge, skill, thoroughness, and preparation.” None of these legal services were provided to Mr. Rosiere.
   

• Mr. Feiner’s failure to read/review the PSI report and cover up his misconduct is fraud upon the court and also fraud upon Mr. Rosiere. He was silent on the issue and had a duty to inform the court of his failed legal performance. Under the discovery rule for fraud, statute of limitations does not accrue until one learns of, or reasonably should have learned, that one has been harmed by the conduct. See, Commer. Props., LLC v. Aslansan, 490 B.R. 675 (3rd Cir. 2013).
  
  

14. John H. Feiner failed to communicate a formal offer (plea agreement) from the prosecution. According to the final PSI report a “written plea agreement dated April 20, 2009” was submitted from the U.S. Attorney’s Office and states that Mr. Rosiere agreed to the terms of the agreement at that time. (Page 33, no. 119, Plea Agreement Information, PSI Report). Mr. Rosiere has tried every avenue; discovery request and the use of the FOIA process in order to obtain a copy of said plea agreement. As well, in a letter to Mr. Rosiere, dated December 18, 2013, Judge Jerome B. Simandle, with all due diligence, also stated that he could not locate any entry for a plea agreement dated April 20, 2009 (see Exhibit 25). Plaintiff Rosiere contends that the plea agreement terms and conditions set forth on above said date were favorable to him.


15. Plaintiff Rosiere plead guilty to less favorable terms. Due to ineffective assistance of counsel he totally missed out on that more favorable earlier plea offer. The “Legal Bill” of counsel, John H. Feiner, shows that there was zero billing hours for:


(a) the reading of the April 20, 2009 plea agreement.

(b) the required investigational concept and process surrounding the 2009 plea agreement.

(c) any mailings being sent to Mr. Rosiere (client) that included the April 20, 2009 plea agreement, or any related information thereof.



16. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); inquired into whether the result of the proceeding would have been different requires looking not at whether the defendant would have proceeded to trial absent ineffective assistance but whether he would have accepted the offer to plead pursuant to the terms earlier proposed.


17. Plaintiff Rosiere argues that the April 20, 2009 plea agreement contained the following:

(a) contained conditional appellant waiver;

(b) plea agreement reserved the right to file any appeal, collateral attack, writ or motion;

(c) four unknown banks.


18. Plaintiff Rosiere’s Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse. Montejo v. Louisiana, 556 U.S. 778,786,129 S.Ct. 2079,173 L.Ed.2d 955 (2009); Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L Ed 2d 203 (1985). In Missouri v. Frye, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), the U.S. Supreme Court holds that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.


19. Standards for counsel’s performance is not determined solely by reference to codified standards of professional practice. The ABA recommends defense counsel, ”promptly communicate and explain to the defendant all plea offers made by the prosecuting attorney,” (ABA Standards for Criminal Justice, Pleas of Guilty 14-3.2(a) (3rd ed. 1999)). These standards have been adopted by state and federal courts. Refer to the following cases:


Davie v. State, 381 S.C. 601, 608-609, 675 S.E.2d 416, 420 (2009); Cottle v. State, 733 /si,2d 963, 965-966 (Fla. 1999); Becton v. Hun, 25 W.Va 139, 144, 516 S.E.2d 762, 767 (1999); Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994); Lloyd v. State, 258 Ga. 645, 648, 373 S.E. 2dl, 3 (1998); U.S. v. Rodriguez, 929 F.2d 747, 752 (Ct 1 1991); Pham v. United States, 317 F.3d 178, 182 (Ct 2 2003); United States ex rel. Caruso V. Zelinsky, 689 F.2d 435, 438 (CA 3 1982); Griffin v. U. S., 330 F.3d 733, 737 (CA 6 2003); Johnson v. Duckworth, 793 F.2d 898, 902 (CA 7 1986); U. S. v. Blaylock, 20 F.3d 1958, 1466 (CA 9 1994); Diaz v. U.S., 930 F.2d 832, 834 (CA 11 1991).

 

[Royal Gotti]

Here is some more fact of the docket of the case, AKA fact for Pharaoh and his AKA selves.

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

________, NEW JERSEY ________


SHAUN ROSIERE :

Petitioner(s) :

: MOTION / COMPLAINT for Relief from

: Judgment or Order Pursuant to Fed.R.Civ.P.

: 60(d)(1),(3) and

v. :

UNITED STATES OF AMERICA : MOTION/COMPLAINT for Relief Pursuant to:

Respondent(s) :

: (a) N.J. Stat. Ann. § 2A:14-1; (b) Title 5 U.S.C.

: § 552; (c) Fed.R.Civ.P. 44; (d) Title 18 U.S.C.

: § 1331; (e) Fed.R.Crim.P. 32 Violation; (f) Sixth

: Amendment Violation of Citizen Rosiere;

: (g) Due Process Violation of Citizen Rosiere;

: (h) U.S. is a Party to a Contract; Title 28

: U.S.C. § 1346(a)(2); (i) N.J. Ct. Rule 3

: 9-1(b),(c); (j) Title 28 U.S.C. § 530B;

: (k) Title 28 U.S.C. § 1367

:

: Venue Pursuant to: Title 28 U.S.C. § 1391

____________________________________________________________




Plaintiff Rosiere Seeks Relief from Judgment Pursuant To Federal Rules Civil

Procedure 60 (d)(1),(3).


ARGUMENT




20. New Jersey state law has elected that all offers must be in writing. See N.J. Ct. Rule 3:9-1(b)(2012); “Any plea offer to make by the prosecutor shall be in writing and forwarded to the defendant’s attorney. See also N.J. Ct. Rule 3:9-1(b), ( c ); requiring the prosecutor and defense counsel to discuss the case prior to the arraignment/status conference including any plea offers and to report on these discussions in open court with the defendant present.


21. The Rosiere criminal cases Nos. 08-629-5 and 09-720-1 are absent on the docket where this April 20, 2009 plea agreement was discussed in open court with Mr. Rosiere present. Plea contracts (agreements) are analyzed under contract law standards. See Boyo v. Warden, 579 F.3d 330 (CA 3 2007); New Jersey Law and New Jersey Court Rule 3:9-1(b)(1)( c ) required the contract (plea agreement) to be discussed in open court via status conference with Mr. Rosiere present. This has neveroccurred and is required under N.J. Law and N.J. State’s highest court mandate.


22. The federal courts are bound to state law as it directs the conveyance of plea contracts (agreements). See Generally; Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Johnson v. Riverside Healthcare Sys., LP; 516 F.3d 759 (CA 9 2007); Jurinkov v. Medical Protective Co., 2006 U.S. Dist LEXIS 42923; Gelbard v, United States, 33 LED 2D 179, 408 U.S. 41 (S.Ct. 1972).


(a) See Title 28 U.S.C., Section 530B; Ethical standards for attorneys for the government; (a) An attorney for the government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each state where such attorney engages in the attorney’s duties, to the same extent and in the same manner as other attorneys in the state.

(b) Added October 21, 1998, P.L. 105-277, Div A, Sec. 101(b) [Title VII, Sec. 801(a)], 112 Stat. 2681-118.

(c) Plaintiff Rosiere argues that congressional intent is clear within the law. The conveyance of the plea contract is required under state law and as such any AUSA, Attorney General, or court are to be subject to the state law and rules.


23. New Jersey Contract Statute of Limitations


In New Jersey, causes of action for breach of contract, fraud and others are governed by a six year statute of limitations. N.J. Stat. Ann., Section 2A: 14-1. See, Fox v. Congress Fin. Corp. (in re Target Indus., Inc.), 328 B.R. 99 (3rd Cir. 2005).


Within New Jersey the statute of limitations applicable to a recovery upon a contractual claim is six years. See, Lavin v. Bd. Of Educ., 90 N.J. 145, 447 A.2d 516 (1982) (quoting N.J. Stat. Ann., Section 2A: 14-1).


The statute of limitations for legal malpractice is six years. New Jersey Stat. Ann., Section 2A: 14-1. See, McHale v. Kelly, 2011 U.S. Dist. LEXIS 118888 (3rd Cir.)


24. Choice-of-Law


Plaintiff Rosiere has exercised his right under the New Jersey statue regarding Choice-of-Law in limited respects of recovery. The terms of the April contract apply to all past/present proceedings. Thus, the April 2009 contract must replace the September 17, 2009 contract with respect to the issues presented herein.


The Choice-of-Law clearly is New Jersey in relation to the plea agreement contract. The criminal cases arise out of U.S.D.C. of New Jersey, and the contract origin is New Jersey; as well as all events were taken place in New Jersey surrounding contract formation. The New Jersey State Court applies the “most significant relationship” test to contract claims. See, Gilbert Sprvance Co. v. Pennsylvania Mfrs. Ass’n Ins. Co., 134 N.J. 96, 629 A.2d 885, 888 (N.J. 1993). Also see, State Farm Mut. Auto. Ins. Co., v. Simmons Estate, 84 N.J. 28, 417 A.2d 488(N.J. 1980).


25. Under Federal Rule Civil Procedure 11, AUSA Fabiana Pierre-Louis, via FRCP 11(b)(3) investigated and preformed competent legal research and quoted, from the April 20, 2009 plea agreement, the following: “both parties reserve the right to file . . . Any appeal, collateral attack, writ or motion not barred by the preceding paragraph. Then goes on and states, “which contained the conditional appellate waiver.” The quoted words and the relevance of a conditional plea are not what was filed on September 17, 2009.


Plaintiff Rosiere argues that under Federal Rule Civil Procedure 11 (b)(3), AUSA is certifying the factual content within the April 20, 2009 plea agreement, and when an officer of the court states, “. . . Rosiere’s plea agreement simply states that both parties reserve the right to file. . .any appeal, collateral attack, writ or motion not bared by the preceding paragraph which contained the conditional appellate waiver”, the meaning is clear that this statement came from the plea offer of April 20, 2009.


See generally; W.Run Student Hous. .Assocs. LLC v. Huntington Nat’l Bank, 712 F.3d 165 (CA 3 2013); Carnegie Mellon Univ. v. Marvell Tect. Group. LTD, 2013 U.S. Dist. LEXIS 135208 (3rd Cir.). See also, Simmerman v. Corino, 27 F.3d 58, 62 (3rd Cir. 1994).


26. To “file” is not equal to “oppose,” and “motion barred” does not equal “motion not barred.” Clearly these words were taken from the plea contract of April 20, 2009. Also, the April 20, 2009 plea contract had within it the statement regarding the four unknown banks. This is also not mentioned in the September 17, 2009 plea contract, yet reported in the PSI.


27. Judicial Admissions


Plaintiff Rosiere is applying the Judicial Admissions Rule to AUSA’s past pleading (see above quote) into evidence as undisputed fact.


Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195 (C.A. 3rd Cir. 2006); “Judicial admissions are concessions in pleadings or briefs that bind the party who makes them.”


Parilla v. IAP Worldwide Servs. VI, Inc., 368 F.3d 269, 275 (3rd Cir. 2004)(Finding that the plaintiff was bound because she “expressly conceded those facts in her complaint.”)(citing, inter alia, Soo Line R.R. Co., v. St. Louis Southwestern Ry. Co., 125 F.3d 481, 483 (7th Cir. 1997)(noting the “well-settled rule that a party is bound by what it states in its pleadings”)


Glick v. White Motor Co., 458 F.2d 1287, 1291 (3rd Cir. 1972)(noting that unequivocal “Judicial admissions are binding for the purpose of the case in which the admissions are made [ , ] including appeals”)).


Beal Bank v. Crystal Props., LTD., 268 F.3d 743 (C.A. 9th Cir. 2001), citingUnited States v. Bentson, 947 F.2d 1353, 1356 (9th Cir. 1991)(Judicial admissions before district court . . . are binding on the appellate court).


Cadelli v. United Transp. Union, LEXIS 35852, (C.A. 9th Cir. 1997)(“Factual assertions in pleadings and pretrial orders. . . are considered judicial admissions conclusively binding on the party who made them.”)


American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224 (C.A. 9th Cir. 1988). Citing: 10A, C. Wright, A. Miller, and M. Kane, Federal Practice and Procedure, Section 2723, pp. 64-66 (1998)(admissions in opponent’s brief can be used to determine there is no genuine issue of fact, since they are functionally equivalent to “admissions on file”).


28. Ultimately, Plaintiff Rosiere argues that the district court must recognize the crucial factum that: Rosiere’s counsel, John H. Feiner, failed to investigate and inspect the physical evidence.


John H. Feiner’s “Legal Bill” is absent any travel expense to Edison, New Jersey with reference to discovery. The government notified him in regards to physical discovery being available for review on the following dates:



(a) January 26, 2009

(b) April 6, 2009

(c) June 3, 2009



The above listed dates were the dates that the government informed Mr. Feiner that various/multiple items of physical evidence was available for review in Edison, New Jersey (Exhibits 3-6, 11-13, 14-17).


29. Plaintiff Rosiere’s legal theory to establish fact and circumstances to give rise to cause of action related to the inspection of physical evidence is based on the following:


(a) United States v. Baynes, 687 F.2d 659 (CA 3 1982). See also; American Bar Association Standards, The Defense Function, Section 4.1 (1971); Gaines v. Hopper, 575 F.2d 1147 (CA 5 1978). That it is well settled that an attorney is obligated to examine potentially exonerating evidence.


(i) This is the required threshold as to minimum legal services to conform and comply with the Sixth Amendment mandates.


(b) Moore v. United States, 432 F.2d 730, 736 (CA 3 1970). The standard for Sixth Amendment effective assistance of counsel is well established in the 3rd Circuit.



(i). The standard of adequacy of legal services as in other professions is the exercise of the customary skill and knowledge which normally prevails at the time and place.

(ii). The standard also makes it clear that the ultimate issue is not whether a defendant was prejudiced by his counsel’s act or omission, but whether counsel’s performance was at the level of normal competency.

(i) That the client was prejudiced by failure in performance is of course evidentiary on the issue.

(iii). Counsel neglected the necessary investigation and preparation of the case.

(1) United States v. Hinton, 631 F.2d 769 (CA DC 1976); “Where counsel’s choices are uninformed because of inadequate preparation . . . a defendant has been denied his right to the effective assistance of counsel guaranteed by the Constitution.”


30. Plaintiff Rosiere argues that clearly the discovery referred to in the three letters from the government [January 26, 2009 (Exhibits 3-6); April 6, 2009 (Exhibits 11-13); and June 3, 2009 (Exhibits 14-17)], is physical evidence discovery that is located in Edison, New Jersey, since AUSA differentiates between document discovery and the discovery in Edison, New Jersey that requires a physical review at a physical location.


(a) January 26, 2009 letter, page 2, item A (Exhibits 3-6): “Discovery is available for your review in a USPIS workroom in Edison, New Jersey . . . In addition the government has made and will make available to you, at the government’s expense, document discovery.”



Freedom of Information Act (FOIA) Complaint


This matter is before the court on Plaintiff Rosiere’s complaint for requested documents under the Freedom of Information Act (FOIA), pursuant to 5 U.S.C., Section 552 for the reasons explained below:


31. This action arises out of Plaintiff Rosiere’s efforts to obtain records from the Department of Justice (DOJ) concerning alleged public documents that are alleged on public record in criminal case numbers 08-629-5 and 09-720-1; as well as other unrelated requested document matters in the control of DOJ progenies. The documents requested by Mr. Rosiere are held in the prosecutor’s files; case files; National Archives on and for the DOJ; or elsewhere as a DOJ progeny. The alleged documents were the foundation of the prosecutor’s “case in chief,” or unrelated matters in the control of progenies of the DOJ.


32. The DOJ or progenies have failed to produce or respond to any of the alleged documents via two FOIA request attempts by Plaintiff Rosiere (Exhibits 26-75).


33. The statutory timeframe for FOIA compliance (for the DOJ and all progenies) has lapsed, pursuant to Title 5 mandate. See 5 U.S.C., Section 552 (a)(6)(A)( i ).


34. Plaintiff Rosiere’s FOIA complaint seeks the production of each requested document (Exhibits 26-75). Under the uniform method of “Proving an Official Record”; Fed.R.Civ.P. 44 (a)(1)(B)( i ), “a copy attested by the officer with legal custody of the record . . . certificate must be made under seal . . . a judge of a court of record in the district . . . where the record is kept.” In the following manner:


(a) Plaintiff Rosiere seeks all documents (records) produced and placed on the court record in this civil case that were requested by Mr. Rosiere under FOIA

(Exhibits 26-75); Judge Jerome B. Simandle or Judge of Record to certify under seal each requested document.

(b) Plaintiff Rosiere seeks the physical evidence sign in logs from Edison, New Jersey. Upon review of these logs it will prove that counsel Feiner never went to Edison, New Jersey to review the evidence.

(c) If the documents (records) cannot be produced, then compliance with Fed.R.Civ.P. 44(b), “Lack of a Record”; with the same requiredFed.R.Civ.P. 44 (a)(1)(B)(i) judicial mandate.

(d) Within the detailed affidavit state whether the record was found or that there was no record found upon the public records.


35. Plaintiff Rosiere only requires the DOJ to conduct a reasonable search for responsive records; prosecutors, “case in chief,” documents and/or unrelated maters of DOJ progenies. See Generally, Adbelfatlah v. U.S. Dep’t of Homeland Sec., 488 F.3d 178, 182 (3rd Cir. 2007).


36. Plaintiff Rosiere requires, “the agency’s (DOJ) reasonable detailed affidavit, setting forth the search terms and the type of search preformed, and averring that all files likely to contain responsive materials were searched. For each requested document or group of documents.” Valencia-Lucena V. U.S. Coast Guard, 180 F.3d 321, 326, 336 U.S. App. D.C. 386 (D.C. Cir. 1999); Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68, 287 U.S. App. D.C. 126 (D.C. Cir. 1990). In the following manner:


(a) Each detailed affidavit is required to comply with Fed.R.Civ.P. 44 (a)(1)(B)( i).


37. All certifications are required to comply with Fed.R.Evid. 902; Order of the Court authenticating such Fact in Findings.


38. The DOJ has no authority to withhold information or limit availability or records.

See 5 U.S.C., Section 552 (d).


39. District court has jurisdiction under 18 U.S.C., Section 1331 over 5 U.S.C., Section 552 cases.


40. Plaintiff Rosiere argues that the total Bates stamped pdf documents are easily ascertained.



(a) April 6, 2009 letter (Exhibits 11-13):

(1) “document discovery as bates stamped pdf files “NEW-P-0125937-NEW-P- 0143955 and NEW –E-0144716-NEW-E-0144795.” As this reads there are approximately 18,097 documents.

(b) June 3, 2009 letter (Exhibits 14-17):

(1) “1 DVD marked Newark discovery . . . Bates range New-E-0144743-0144743.00052 to NEW-E-0144751.118931 and NEW-P-0045066 to NEW-P-0150200.”

As this reads there are approximately 224,115 documents.

(2) “Bates range 988900-988981.” As this reads there are approximately 81 documents.

(3) “Bates range –P-0000001-NEW-P-0048077.” As this reads there are approximately 48,077 documents.

• Clearly the concordance software should list ranges used and then hand this master sheet over to Plaintiff Rosiere.
• When the government produce the ranges used via Bates stamped pdf, Concordance software and approximately 275,000 documents come to pass, this will constitute new evidence, fraud upon the court, and fraud under the New Jersey law to Plaintiff Rosiere; as well as rule ABA R.P.C. 1.1.
• John H. Feiner’s “Legal Bill” (Exhibits 1-2) shows 30 hours for reading discovery. It is not possible for counsel, or anyone else, to read over 275,000 documents in 30 hours.

41. Plaintiff Rosiere requires the Time Log: the total time of each conversation of each CD or cassette tape.


(a) This data is clearly available as stated in the January 26, 2009 letter

(Exhibits 3-6) which states on page 3, “make duplicate recordings for your convenience and provide them to you, and will provide draft transcripts”

(i) Each transcript requires a Time Log giving rise to total time per conversation.

(b) February 6, 2009 letter (Exhibits 7-10):

(i) The AUSA’s state there are 7 CD’s of recorded conversations.

(ii) The AUSA’s state there are 7 cassette tapes of recorded conversations.

(c) June 12, 2009 letter (Exhibits 18-19):

(i) The AUSA’s state there are 3 CD’s of recorded conversations.


42. Plaintiff Rosiere requires a copy of John H. Feiner’s purchase of the Bates stamped pdf software (Concordance software) from the government.


(a) All document discovery was on Bates stamped pdf (Concordance software).

(i) January 26, 2009 letter (Exhibits 3-6): “document discovery as Bates stamped pdf files, on hard drive; Concordance software, if you choose to purchase it.”

(ii) April 6, 2009 letter (Exhibits 11-13): “document discovery as Bates stamped pdf files.”

(iii) June 3, 2009 letter (Exhibits 14-17): “1 DVD marked Newark discovery . . . Bates range. . .”

(b) June 3, 2009 letter (Exhibits 14-17): “at you request, one CD marked search of all Rosiere source docs, dated 6/02/-09, with Bates range NEW-P-0000001-NEW-P0048077 . . . majority of these documents already were provided to you in discovery.”

(i) Yet, the January 26, 2009 Letter (Exhibits 3-6): “Concordance software . . . will enable you to text search all of the discovery as well as organize and categorize the discovery.”

(ii) After the court’s closure of discovery (case # 08-629-5) John H. Feiner did not use the required Concordance software, or bought it, or read any discovery at this point. This is clear by John H. Feiner’s request of a search of “text”; “Rosiere.” The government already conceded the software allows a text search in its letter dated January 26, 2009 (Exhibits 3-6).

(iii) When the government under Fed.R.Civ.P. 44(b) shows zero purchase of the software by Mr. Feiner then this will constitute new evidence, fraud on the court, and fraud under New Jersey law to Plaintiff Rosiere.

 

[Pharaoh]

LMAO. That's the best you can do?

1. OK, you caught me. Everyone at the FPA and all other forums on the internet is really me. As a matter of fact, everything you hear, see, feel, smell, taste or touch is just a part of my programming. I've got bad news for you. The year is really 2029. You are in a coma and can't be awakened. I'm the program which was designed to give you something to keep your brain engaged while the doctors tried to save you. I also have some worse news for you. The prognosis isn't good. There's nothing more to be done and your vital signs are declining. You'll be gone soon.

Actually, this makes much more sense that the blather you've been spewing.

2. As long as we're debating who's real, I got a suggestion of a good friend, I Googled "Royal Gotti" reporter. Guess what I found? The ONLY relevant reference besides this thread is a paid press release attacking a judge who ruled against Shaun Rosiere here:

http://www.newswire.com/press-release/judge-simandle-to-be-indicted-in-d-c

You aren't a reporter for NewsWire.com. You're a customer. You can see the rates for anyone to submit press releases here:

http://www.newswire.com/pricing

This press release is obviously false. It claims that there was an FBI news conference where an investigation of the judge was announced. It's awfully strange that the ONLY "reporter" to tell the story of a big investigation of a federal judge was Royal Gotti. The other thing that's awful about it is the incompetent writing. Typos like that while arguing in a forum are one thing. Spending money to publish a poorly written (and obviously false) press release is amazingly foolish.

Anyone who wants to see that the judge in question is still firmly on the bench has to look no farther than here:

http://www.njd.uscourts.gov/content/jerome-b-simandle-chief-judge

Royal Gotti, would you care to explain what news agency you claim to be a reporter for and to show us any pre-existing stories unrelated to Shaun Rosiere anywhere? You can claim that court documents aren't all online, but it's virtually impossible for a real reporter to not make some impression on the web. Can you prove me wrong by showing any legitimate news agency reporting on the claimed FBI news conference.

3. Moving on to Court Documents. I told you I spent under a minute to find the first document. Thanks for reminding me to be much more thorough in researching Shaun Rosiere's guilty plea. Now that you've gotten a tiny fraction more of my attention, I found a number of online docs.

First, Shaun Rosiere did indeed agree to plead guilty as part of a deal. You can read about his guilty plea here:

http://www.justice.gov/sites/default/files/usao-nj/legacy/2014/09/02/Rosiere, Shaun et al Sentencing PR.pdf

"Shaun Rosiere, of Evergreen, Colorado, who pleaded guilty on September 17, 2009 to the Telemarketing and Identity Theft Conspiracy as well as a conspiracy to defraud investors out of millions of dollars via a fraudulent foreign exchange trading scheme, was sentenced to 73 months of imprisonment and $1,768,690 in restitution."

Oh my. I was wondering why he hadn't gotten earl release. Somehow I missed out on this little gem about federal sentencing:

"Parole has been abolished in the federal system. Defendants who are given custodial terms must serve nearly all that time."

According to another document, he agreed not to file an appeal as part of this, admitted his guilt, and agreed to be sentenced within the guidelines.

http://nj.findacase.com/research/wfrmDocViewer.aspx/xq/fac.20120925_0001863.DNJ.htm/qx

"A plea hearing was held this same day before Judge Brown. During this plea hearing, Judge Brown extensively questioned the Petitioner regarding the plea agreement, whether he understood the terms set forth therein, whether he was pleading guilty because he was in fact guilty and for no other reason, whether he understood that he was waiving his rights to appeal and to file a writ or motion after sentencing, and whether he was satisfied with the services of his attorney and whether his attorney fully explained the consequences of entering a guilty plea. Judge Brown also asked Petitioner's counsel whether the decision to plead guilty was knowing and voluntary and conducted an inquiry of Petitioner to determine independently whether his plea was knowing and voluntary.

Petitioner also admitted specific facts supporting his plea. In particular, Petitioner admitted to conspiring to defraud financial institutions and their account holders by fraudulently depositing into various corporate bank accounts checks purportedly received from customers of telemarketer businesses and withdrawing those funds from the victim banks knowing the checks were not obtained from consenting telemarketing customers. Petitioner also admitted to opening corporate bank accounts and incorporating numerous corporations in order to deposit funds derived from the scheme.

At no time during this hearing did the Petitioner indicate he was dissatisfied with counsel, negate the factual basis of his plea or claim that he was not making a knowing and voluntary decision to plead guilty."

Shaun Rosieri then promptly tried to get out of the deal. From the same document:

"On August 3, 2010, Petitioner was sentenced by Chief Judge Brown. [Docket No. 09-720, Docket Item 7.] Prior to issuing the sentence, Petitioner filed a motion to recuse Judge Brown. This motion was not filed by his attorney but rather was filed of Petitioner's own accord. Petitioner's counsel withdrew it at the sentencing hearing and Judge Brown independently determined that it was patently frivolous. [Docket No. 09-720, Docket Item 9.]

Petitioner also filed objections to the presentence report which were addressed by the court. Petitioner's counsel stated that he did not know what Petitioner's particular objections were and Judge Brown permitted Petitioner to address the court directly with his arguments. Petitioner explained that he talked to counsel on the phone about his objections and counsel indicated that he did not file the objections because he determined they were immaterial. [Id. at 9:16-25.] Judge Brown gave the Petitioner the opportunity to adjourn the sentencing to speak with his lawyer about his objections so they could be dealt with in open court. Petitioner elected to orally discuss his objections with the court. [Id. at 10:6-12:16.] After hearing all of Petitioner's objections, Judge Brown determined that Petitioner's objections were not relevant to sentencing and dismissed them. [Id. at 12:9-16.]"

But in the end, he DID plead guilty and took full responsibility:

"Prior to imposition of his sentence, Petitioner reiterated to the court that he took full responsibility for his actions. [Id. at 15:9-13.] The court was satisfied at the plea hearing that Petitioner accepted responsibility and the court reiterated its satisfaction at sentencing despite not having a written acceptance of responsibility from Petitioner. [Id. at 7:14-21; 17:4-5.]"

The sentence was 73 months. Since then, he's tried to file multiple appeals on an assortment of technicalities which keep getting rejected, first by Judge Brown and later by Judge Simandle So far, I haven't found any reference in those court documents to any government agency or employee being "the real deal". The document you posted are just more details of Shaun Rosiere trying to claim that he was misrepresented by his lawyer in various ways.

Here are a couple of his appeals:

http://law.justia.com/cases/federal/district-courts/new-jersey/njdce/1:2011cv04404/262451/20/

Denied his appeal up one side and down the other. The only thing Shaun Rosiere got out of the whole complaint was the return of some CDs and a few other miscellaneous items no longer needed as evidence, since they didn't qualify as contraband and wasn't subject to forfeiture. This is hardly the stunning legal victory your BS press release claimed it was.

http://law.justia.com/cases/federal/district-courts/new-jersey/njdce/1:2014cv04373/306492/46/

Exceptionally scathing piece on the second attempt to overturn the plea agreement and sentence. Looks like a total fail on all fronts.

4. If the SEC or other agency EVER wrote a word in favor of Shaun Rosieri, especially one calling him the real deal, why don't you publish that document? Surely it must be among those million documents you claim to be familiar with and would go a long way towards supporting your otherwise pathetic sounding claims.

Prove me wrong. Scan and attach the SEC statement that is so important to your claims.

5. What you really are?

Let's see if I can construct a hypothesis that fits the facts? You are doing everything you can to cast doubt on Shaun Rosiere's fraud conviction, including a libelous attack on a federal judge. There's no sign of you being a reporter of anything unrelated to this case. Chances are that you are operating under a pseudonym to prevent the consequences that your libel could make you subject to. The question is why?

When in doubt, follow the money.

Shaun Rosiere's prison term will be ended fairly soon, If someone can help cover up and cast doubt on the facts, that will make it much easier for him to find new clients.

So, I'd say that you most likely are either a paid reputation manager and/or you are going to be Shaun Rosiere's newest associate when he goes back into business.

Since you claim to be such a real person, why not upload your CV, references, and links to many of the fascinating stories you've reported on to prove me wrong.