Here are some facts read this I pulled it form court what can you find Pharaoh or any of your other AKA selves?
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.
THE PLEA OFFER WAS NOT ACCEPTED WITHIN THE RESTRAINTS SET FORTH
BY THE GOVERNMENT’S ESSENTIAL TERMS OF THE CONTRACT/PLEA
AGREEMENT
1. An enforceable contract requires an offer, an acceptance, consideration, and a meeting of the minds upon all the essential terms of the agreement. See, e.g., Weighert Co. Realtors v. Ryan, 128 N.J. 427, 435, 608 A.2d 280 (1992); West Caldwell v. Caldwell,
26 N.J. 9, 24, 138 A.2d 402 (1958); Friedman v. Tapan Dev. Corp., 22 N.J. 523, 532,
126 A.2d 646 (1956). Thus, an acceptance must be made before the offer is withdrawn
or lapses (as in this case), and it must match the terms of the offer exactly. The offer
submitted by the government was not open, and it had since lapsed when Plaintiff
Rosiere and his unlicensed N.J. counsel, John H. Feiner, attempted to accept the offer
by signing the lapsed offer on September 17, 2009 at approximately 2:15 p.m. EST.
2. The clerk of the court’s records indicate that court commenced and Crim. No. 09-
720-1 was electronically created/issued at 2:15 p.m. on September 17, 2009 (Exhibit A). In Crim. No. 09-720-1, doc. 6, pg. 1, of the plea agreement it clearly shows the hand written number 09-720-1. The criminal number for the Information charge was placed on the document just prior to the signatures of several parties involved; and was done by the AUSA’s themselves as is demonstrated on the plea agreement in question. All parties were in the courtroom just prior to the commencement of court at 2:15 p.m. EST and Plaintiff Rosiere and his counsel, John H. Feiner, were handed the plea contract/agreement at that time to sign. Logic would dictate, to any reasonable person, that no one could sign a plea agreement that was created and dated on September 17, 2009 before “Noon” as was stipulated as the expiration term of the agreement by the government. The plea agreement, doc. 6, pg. 1, paragraph 1, states, “This plea agreement will remain open until Noon, September 17, 2009. If an executed plea agreement is not received in this Office on or before that date, this plea agreement will expire.”
3. To reiterate, the AUSA’s drafted a plea agreement on September 17, 2009 that expired within hours of its own creation and terms; that in fact expired at “Noon” of that same day. In their own hand they (AUSA’s) wrote the criminal information case number, 09-720-1, which was created by the clerk at 2:15 p.m. EST on the September 17, 2009 plea agreement and presented the offer to unlicensed New Jersey counsel, John H. Feiner, in Newark, New Jersey. The offer by its own terms expired before any acceptance attempt, or presentment. Thus, it was impossible for the attempted acceptance to form a binding contract. See, Restatement (First) of Contracts Sec. 40 (1) (1932), (see Appendix 3) which states: “The power to create a contract by acceptance of an offer terminates at the time specified in the offer . . .”. Restatement (Second) of Contracts Sec. 41 (1) (1981), (see Appendix 4) which states: “An offeree’s power of acceptance is terminated at the time specified in the offer . . .”. Restatement (Second) of Contracts Sec. 35 (2), (see Appendix 5) which states: “A contract cannot be created by acceptance of an offer after the power of acceptance has been terminated . . .” The time for acceptance was specified in the offer and clearly understood, “open until Noon, September 17, 2009.” The time was deemed to be of the essence on the government’s behalf, and was a contract issued and created on September 17, 2009 that expired within hours at noon of the same day.
4. In the plea proceeding transcripts AUSA Katz stated the following:
“I’m sorry . . . trying to get this together . . .” (pg. 2, lines 14-15) (Exhibit D-1). At sentencing AUSA Katz was speaking to the Court referring to Plaintiff Rosiere and stated, “he pled . . .just two weeks before we were set to go to trial,” (pg. 15, lines 22-24) (Exhibit D-2). AUSA Katz later stated to the Court, “. . . we wanted to make sure we could do it before we started the trial,” (pg. 16, lines 3-4) (Exhibit D-3). The mindset of the drafters (AUSA) is clear; all matters must be done right now; a hastened approach.
5. When plea agreements are analyzed the analyzation is under contract law standards, as mentioned above, and ambiguities in plea agreements drafted by the government are construed against the government. See, United States v. Gebbie, 294 F.3d 540 (CA 3 2001); United States v. Williams, 510 F.3d 416 (CA 3 2007); United States v.Green, 1994 U.S. Dist. LEXIS 5611 (3RD Cir.); United States v. Saferstein, 673 F.3d 237 (CA 3 2012). Also generally, see Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed. 2d 427 (1971). The reasoning behind this standard in all case precedents is the government’s tremendous bargaining power, as such, the court strictly construes the text of the plea agreement against the government as a whole when it was (is) the drafter of the agreement. With this said, the government is limited by its own draft as drafter to the word “Noon” in context of the September 17, 2009 agreement and its expiration clause.
6. The Supreme Court has made its presence known on the subject in Puckett v. UnitedStates, 556 U.S. 129, 129 S.Ct. 1423, 173 L.Ed. 2d 266 (2009); that plea agreements are construed in terms of contract law. As such, is used now in numerous cases to settle the issue. The Third Circuit Court of Appeals has stated that: “plea agreements . . . analyzed under contract law standards.” See, U.S. v. Rivera, 357 F.3d 290 (CA 3 2003); U.S. v.Gilchrist, 130 F.3d 1131 (CA 3 1997); U.S. v. Moscahlaidis, 868 F.2d 1357 (CA 3 1989) U.S. v. Trant, 389 Fed. Appx. 122 (CA 3 2010); U.S. v. Williams, 510 F.3d 416 (CA 3 2007); U.S. v. Castro, 704 F.3d 125 (CA 3 2012); U.S. v. Goodson, 544 F.3d 529 (CA 3 2008); U.S. v. Nance, 500 Fed. Appx. 171 (CA 3 2012); U.S. v. Corso, 549 F.3d 921 (CA 3 2008); U.S. v. Cope, 452 Fed. Appx. 114 (CA 3 2011); Watts v. U.S., 386 Fed. Appx. 245 (CA 3 2010); U.S. v. Kenrick, 306 Fed. Appx. 794 (CA 3 2009); U.S. v. Benard, 373 F.3d 339 (CA 3 2003); U.S. v. Gebbie, 294 F.3d 540 (CA 3 2001); U.S. v. Nolan-Cooper, 155 F.3d 221 (CA 3 1998).
7. The use of Restatement (First) of Contracts Sec. 40(1); Restatement (Second) of Contracts Sec. 41(1); Restatement (Second) of Contracts Sec. 35(2), are the unequivocal legal standards for the proper dissolution of the issue at hand. The offer was not accepted by: (1) Rosiere, current plaintiff; and (2) local New Jersey counsel Vincent J. Sanzone, Jr.; See Crim. No. 09-720-1, doc. 6, pg. 5 to see the absence of required local New Jersey counsel Vincent J. Sanzone, Jr.’s signature as counsel of record, as is required under New Jersey U.S. Dist. Court Local Rules 101.1 (c) (4); (See, CHOICE OF FEDERAL RULE PURSUANT TO CONGRESSIONAL INTENT AND APPLICABLE LOCAL RULES that apply before the time constraint expired).
8. Unlicensed New Jersey counsel, John H. Feiner’s signature alone, violates U.S. Dist. Local Rule 101.1 (c)(4); Fed.R.Civ.P. 11 (See, CHOICE OF FEDERAL RULE PURSUANT TO CONGRESSIONAL INTENT AND APPLICABLE LOCAL RULES); requirements and beyond the contract expiration term, “Noon,” does not constitute a local N.J. counsel of record accepted, thus no contract is formed at the time in question, under the undisputed material facts, within the terms of the expiration of said contract, September, 17, 2009 at the “Noon”, mandate. John H. Feiner, presented himself as counsel for Plaintiff Rosiere in the Crim. Case No. 09-720-1 and is not licensed in the state of New Jersey, nor was he admitted into New Jersey as Pro Hac Vice in this particular criminal action case.
9. Under New Jersey state law there is no question that an offeree must accept an offer within the time specified in the offer. Absent a waiver of the deadline by the offeror in compliance with the terms of the contract offer, an offeree’s power of acceptance is terminated at the time specified in the offer. See Senior Settlement, LLC, v. Growth TrustFund, 373 Fed. Appx. 287 (CA 3 2010); State v. Ernst & Young, LLP, 386 N.J. Super. 600, 902 A.2d {373 Fed. Appx. 292} 338, 345 (N.J. Super. Ct. App. Div. 2006). See also, E. ALLEN FARNSWORTH CONTRACTS SECTION 3.21 (1982); “The power to create a contract by accepting an offer terminates at the time specified in the offer.” Under state of New Jersey law, there are no cases that anyone, including the United States, can offer to describe how an offeror can waive a time limit in its offer, contrary to its own specified terms. Because there is no explicit or implicit extension of time in this case, because the time for acceptance was specified in the offer, because the time was deemed to be of essence, and because the offer was not accepted before the time expired, there was no contract formed at the time legally, as a matter of law.
CHOICE OF FEDERAL RULE PURSUANT TO CONGRESSIONAL INTENT AND APPLICABLE LOCAL RULES
1. New Jersey U.S. District Court Local Rule 101.1 (j) for criminal cases does not apply to civil litigation to include: (a) civil forfeiture provision of Title 18 U.S.C. § 981; (b) Title 28 U.S.C. 2461, related to civil actions; and (c) civil in rem action number 05-2589 (Civil forfeiture). As such, any legal issue that arises to be civil in nature must use the applicable, Federal Rules of Civil Procedure in relation to lawyers’ activities in client representation; inside and outside of the judicial court. Federal Rules of Criminal Procedures are applicable only in criminal and not in civil proceedings. See Fed.R.Crim.P. 1 (a) (5) (B) – (“Proceeding not governed by these rules include . . . a civil property forfeiture for violating a federal statute . . .”). Thus, they (the Fed.R.Crim.P.’s) are not the proper legal procedure in any actionable legal remedy related to an in rem forfeiture action under congressional intent.
2. The September 17, 2009 plea agreement, Crim. Nos. 08-629-5 and 09-720-1 (doc. 6, pgs. 2-3, starting at paragraph three) gives rise to the 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., when in its own terms the September 17, 2009 plea agreement encompasses civil forfeiture complaint (Civil No. 05-2589), in part and asked for; “waivers any and all claims, “ AKA stipulations. Thus, this gives full rise to the New Jersey U.S District Court Local Rule 101.1 in its entirety and Fed.R.Civ.P. 11 applications. In addition, civil asset forfeiture proceedings are governed by two sets of procedural rules as set forth by Congress: the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions and Federal Rules of Civil Procedures only. See United States v.$8,221,877.16 in U.S. Currency, 330 F.3d 141, 149 (3rd Cir. 2003).
3. It is well settled that civil forfeiture is not governed by Federal Rule Criminal Procedure 41 (g) motions, because the property was never used as evidence of any crimes. This further supports the foundation of congressional intent and the use of applicable civil rules. See United States v. All That Tract or Parcel of Land, 731 F Supp. 2d 1345 (11th Cir. 2010). Thus all civil forfeiture actions; Title 18 U.S.C. § 981 are governed in part by the Civil Asset Forfeiture Reform Act 2000 (CAFRA), Pub. L. No. 106-185, 114 Stat. 202 (2001). See generally, U.S. v. Castro, 883 F.2d 1018, 1019 (11th Cir. 1998); U.S. v.$144,031 in U.S. Currency, 284 Fed. Appx. 754 (11th Cir. 2008); Dresdner Bank AG v.M/V Olympia Voyager, 463 F.3d 1233, 1237 (11th Cir. 2006).
4. To put all of the above in context, one must ask the simple question of: What is congressional intent? We begin, as we must, with the language of the statute itself. See United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 103 L.Ed 2d 290, 109 S.Ct. 1026 (1989). Where the statute’s language is plain, the sole function of the courts is to enforce it according to its terms. See Caminetti v. United States, 242 U.S. 470, 485, 61 L.Ed. 442, 37 S.Ct. 192 (1917). The statute states as follows; Fed.R.Crim.P. 1(a) (5); “Excluded Proceeding. Proceedings not governed by these rules include: . . . (B) a civil property forfeiture for violating a federal statute.” The rules are drawn under the authority of 28 U.S.C. § 2072 by and through; Nov. 19, 1988, P.L. 100-702, Title IV, Sec. 401(a), 102 Stat. 4648; Dec. 1, 1990, P.L. 101-650, Title III, Sec. 315, 104 Stat. 5115. Congress expresses its intent through the ordinary meaning of its language. See Murphy v. Millennium Radio Group LLM, 650 F.3d 295 (CA 3 2011); Alston v. Countrywide Fin. Corp., 585 F.3d 753 (CA 3 2009); United States v. Diallo, 575 F.3d 252 (CA 3 2008); Disabled in Action v. SEPTA, 539 F.3d 199 (CA 3 2008); Rosenberg v. XM Ventures, 274 F.3d 137, 141 (3rd Cir. 2001). Webster’s New World College Dictionary; Fourth Ed. 2010, the word “excluded,” means: “keep from entering . . . prohibited . . .”. Here the meaning of congress is clear, the courts may not apply Fed.R.Crim.P. to any Civil forfeiture provision and in light of this one key point, any plea agreement contract, in part, that encompasses civil forfeiture.
5. All the aforementioned gives rise to any local rules, as well as the Fed.R.Civ.P., the proper governing rules dealing with civil forfeiture. Hence, as Pro Hac Vice, John H. Feiner, cannot sign on his own as an unlicensed New Jersey counsel, as he tried to do. In doing so he violated the New Jersey Local Rule 101.1 (c) (4) and Fed.R.Civ.P. 11 in relation to the stipulations related to the issues involving the civil In Rem Action No. 05-2589; encompassed in the September 17, 2009 plea agreement contract (Crim. Nos. 08-629-5 and 09-720-1, doc. 6, pgs. 2-3, and beginning at the third paragraph). New Jersey Local Rule 101.1 (c) (4) requires that an attorney of record authorized to practice in New Jersey sign documents dealing with civil issues; this never happened. As well, John H. Feiner, counsel for Plaintiff Rosiere, 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 – shows no listing in the NJ Lawyers Index for Mr. Feiner).
PLEA AGREEMENT / CONTRACTUAL LIMITATIONS FORCLOSES TIME EXTENSION MODIFICATIONS BY OFFERER ALONE
1. There is no explicit extension of time waiver in this case, thus there is no contract. The AUSA’s (the government) declared time to be of the essence, hence drafted a plea agreement on September 17, 2009 that expired, for their reasons, within hours of its own creation and terms. The absence of an explicit modification of this essential deadline rendered the offer nullity after 12:00 p.m. EST, “Noon,” on September 17, 2009. Both Crim. Nos. 09-720-1 and 08-629-5 dockets are absent an explicit deadline modification filing.
2. One needs to look at the essential terms of the contract. A waiver in any form must be reduced to writing and signed by all parties. See the Plea Agreement, page 4, paragraph 4 which states, “No additional promises, agreements, or conditions have been made or will be made unless set forth in writing and signed by the parties.” As well, on page 5 of the Plea Agreement it states, “. . . no additional promises, agreements, or conditions have been made or will be made unless set forth in writing and signed by the parties.” The meaning is clear since the drafters will not allow any modifications unless all parties agree and put forth in writing and signed. This clearly, includes, any time expansion or extension of the contract offer.
3. The Third Circuit Court of Appeals has used the Parol Evidence Rule for written contracts. As such, when a written contract is clear and unequivocal, its meaning must be determined by its contents alone. See Am. Eagle. Outfitters v. Lyle & Scott Ltd., 584 F.3d 575 (CA 3 2009); Alleman v, State Farm Life Ins. Co., 334 Fed. Appx. 470 (CA 3 2009); U.S. v. Suferstein, 673 F.3d 237 (CA 3 2012). The contract was not modified, or was there any intentions to do so by the government. There was no meeting of the minds, as Thomas Eicher, Attorney-in-Charge, Trenton Office, was not present at the plea proceeding. The plea proceeding transcript does not have him listed as being a party to the proceeding in question (Exhibit D). Thus, he could not approve any plea contract modification, as demonstrated on docket 6, page 5, Crim. No. 09-720-1; his approval signature, which is required for any and all of the above.
4. The attorney of record, Vincent J. Sanzone, Jr., was required to sign the plea agreement under Local Rule 101.1 (c) (4). The absence of his signature on the plea agreement is clearly evident, and he was not present during the sentencing proceedings (see doc. 6, pg. 5, Crim. Case No. 09-720-1). As such, counsel Mr. Sanzone did not sign the four party contract and is required to do so under Federal Rule Civil Procedure 11 (see CHOICE OF FEDERAL RULE PURSUANT TO CONGRESSIONAL INTENT AND APPLICABLE LOCAL RULES). Counsel Sanzone was also not present at the plea proceeding (see Transcript of Proceedings {Plea}, pg. 1, cover pg.) (Exhibit D). He is not listed as being a party to the proceeding in question. To make the above point clear; the transcript of Plea Proceedings, page one (Exhibit D) shows both of them, Mr. Sanzone and Mr. Eicher absent from the proceeding in Newark, New Jersey, where the plea agreement was presented to an unlicensed New Jersey counsel, John H. Feiner. Counsel Feiner only had Pro Hac Vice authority on criminal matters in the 08-629-5 (see Exhibits C & C-1, doc. 42-2, dated 03/10/2009, Crim. No. 08-629-GEB).
5. A complete review of the docket listings under Crim. No. 09-720-1and 08-629-5 is absent a waiver agreement for:
(a) Any initial offer for extension of the expiration clause.
(b) Any waiver agreement signed by all parties to a new time frame for acceptance of the offer.
(c) A waiver to address attorney of record, local New Jersey counsel signature block, a requirement under Local Rule 101.1 ( c )(4), thus gives rise to Fed.R.Civ.P. 11 requirements; counsel of record approval of the plea contract and signature; required for the civil aspects within the contract/plea agreement (see CHOICE OF FEDERAL RULE PURSUANT TO CONGRESSIONAL INTENT AND APPLICABLE LOCAL RULES). Under these conditions, absence of key individuals: (a) attorney of record, Vincent J. Sanzone, Jr., as required local counsel; (b) Thomas Eicher, Attorney-in-Charge, Trenton office; no meeting of the minds could have occurred to form a waiver agreement to essential terms of the contract/agreement on September 17, 2009, the day and place in question. Therefore, the plea contract represents a non-enforceable contract, void under its own terms and legal requirements.