United States District Court
Eastern District of Arkansas Jonesboro Division
Rudolph W. Underwood
Elaine Person Staton
individually and as a Probation Officer
individually, and as a Federal District Judge;
H. David Young
individually, & as a Federal Magistrate Judge
Michael B. Mukasey
individually, and as US Attorney General;
Jane W. Duke
individually, and as a United States Attorney
George C . Vena
individually, and as an Assistant US Attorney
Claretha G. Nelson
individually and as a Chief-Probation Officer;
Alan R. Schoessel
individually and as a Probation Supervisor
Rebecca ? Fulper
individually and as a Probation Supervisor
William O. ("Billy") James
individually and as a Court Appointed Lawyer
James Law Firm
individually, its partners, and associates.
and any other as yet undiscovered parties or entities related to this action that may come to light in subsequent discovery.
Case No.: 3:08-CV-00-
A Verified Complaint
Due Process Violation
Fraud on the Court
violations of self-incrimination
Deprivation of Rights
Under Color of Law Title 18, U.S.C. § 242
Action for neglect to prevent a conspiracy 42 U.S.C. § 1986
Demand for Jury trial
Pursuant to Rule 38 (a)
Federal Rules of Civil Procedure
1. Plaintiff Pro Se Rudolph W. (“Rudy”) Underwood for his complaint against the defendants alleges:
BACKGROUND OF THE ACTION
2. In August 1995, Underwood entered into a loan relationship with the Cross County Bank of Wynne, AR in the amount of approximately $600,000.00. Later, Cross County Bank agreed to fund a real estate project in the amount of $500,000.00 once Underwood reduced his debt by $350,000.00. In 1997, after reducing the debt by the $350,000.00 Underwood alleged his loan officer at Cross County Bank, Vp Danny M. Morrison, attempted to blackmail Underwood to make the $500,000.00 loan.
3. Underwood threatened to sue and contact the FBI. Later Morrison’s supervisors appeared assuring Underwood the loan. At all relevant times Cross County Bank was being audited by state and federal bank examiners.
4. When the state and federal bank examiners left, the loan was denied and all of Underwood’s outstanding loans were demanded. Underwood, with assets in triplicate of his debt, attempted to comply and was ignored by Cross County Bank. Approximately thirty days later Underwood’s attorney’s attempts were ignored until the same day that Cross County Bank filed its suit.
5. On August 26, 1997, Cross County Bank through the Rose Law Firm of Little Rock, AR filed its civil complaint against Underwood and Morrison. The allegations against Underwood were a Breach of Contract, and one count of an Overdrawn Checking Account. The Mooney Law Firm of Jonesboro, AR represented Underwood.
6. Allegations against Morrison were a Civil Conspiracy, Breach of a “Fiduciary” Duty and for “Fraud.”.“Punitive damages” were requested from the defendants.
7. Cross County Bank alleged that Morrison received $7,500.00 from Underwood which was true and in the form of a check from loan proceeds from Cross County Bank made by the president of Cross County Bank.
8. Robert F. Thompson(“Jr.”), of the Branch, Thompson, Philhours, & Warmath Law Firm of Paragould, AR was lead counsel for Morrison. They are also Deputy Prosecuting Attorneys and Robert F. Thompson (“III”) a former Representative is now an Arkansas state Senator .
FRAUD ON THE BANKRUPTCY COURT BY THE DEPUTY PROSECUTING ATTORNEYS
9. On March 16, 1998, two days prior to being deposed by Underwood, Morrison filed a chapter 7 bankruptcy petition. Counsel for Morrison was Alan L. Warmath of the Branch, Thompson, Philhours, & Warmath Law Firm. Said petition was granted on June 29, 1998, pursuant to 11 U.S.C. § 727.
10. Unbeknownst to the United States Bankruptcy Judge James G. Mixon the pending civil lawsuit alleging fraud and requesting punitive damages against Morrison and the inevitable future indictment are in direct conflict of a 11 U.S.C. § 727 discharge.
11. Under no circumstances can most taxes, fraud, punitive damages, and one with a fiduciary duty be discharged from those damages in bankruptcy.
12. Other fraud committed by Morrison on the bankruptcy court was Underwood was not listed as a creditor for the $7,500.00. The reason is, Underwood knew that the bankruptcy trustee Warren Dupwe was Morrison’s former employer and knew that Morrison or his counsel Warmath would not inform the creditors of this conflict.
13. A $17,500.00 loan at Cross County Bank to Morrison was forgiven between the date Morrison was fired on August 31, 1997, and August 23, 1998. On August 24, 1998, Morrison entered into a plea agreement with the government on a one count information pursuant to 18 U.S.C. § 215 [receipt or commission for procuring a loan].
14. Morrison’s plea assured that Cross County Bank’s bonding company would underwrite their losses and assured the other loan officer’s immunity from further prosecution. This was according to the Rose Law Firm.
15. From the time Underwood was sued he requested that his attorney’s to contact the United States Department of Justice and allow Underwood to tell his story. Underwood’s attorney State Representative Christopher R. Thyer and Charles M. ("Skip") Mooney Sr. strictly forbid Underwood to talk to the FBI or give anything to the FBI and did so in writing.
16. On August 27, 1998, the Mooney Law Firm sent Underwood a fax informing him he had been indicted on 6 counts and the arraignment was in two days and he must finds another law firm for the arraignment.
17. Mooney’s excuse was he was not a criminal trial lawyer, yet State Representative Thyer was a criminal lawyer. Later Underwood discovered that in Charles M. ("Skip") Mooney Sr.’s 45-year career as a lawyer he has never had a jury trial of any kind. Mooney is a domestic and zoning lawyer and prepares contracts for bankers. Mooney was involved to work against Underwood not help him. In doing so the Mooney Law Firm obstructed justice.
18. On September 3, 1998, Underwood appeared before Federal Magistrate Judge Henry L. Jones. Underwood was denied self-representation, and not allowed to enter a not guilty plea before a judge that can only accept a not guilty plea. In addition, Judge Jones refused to appoint the Federal Public Defender even though he had no financial documents before him. Federal District Judge Susan Webber Wright was the presiding judge.
19. One week later Underwood reappeared before Federal Magistrate Judge Jerry W. Cavenau with the Federal Public Defender and entered a not guilty plea. The Federal Public Defender refused to represent Underwood and Underwood later retained counsel.
20. At all relevant times Underwood knew that the United States Department of Justice, specifically FBI agents Warner G. Calhoun and Edward J. Jernnigan was protecting the Cross County Bank in concert with the Rose Law Firm and the Mooney Law Firm. Underwood was then determined to have his civil case heard prior to his criminal case. This was to offer proof to a federal judge and jury of the bias and fraud that was occurring by Officers of the Court. In order to prove this required a “civil trial transcript”.
FRAUD ON THE CIRCUIT COURT BY DEPUTY PROSECUTING ATTORNEYS
21. On September 2, 1998, Morrison through counsel did not limit his fraud to the United States Bankruptcy Court. Morrison’s counsel, Robert F. Thompson (“Jr”)., filed a motion to withdraw as counsel for Morrison in Cross County Bank v Morrison et al.
22. Morrison’s motion fraudulently represented to the court that Morrison’s bankruptcy insulated him from any future judgments. Under no circumstances does bankruptcy defeat fraud and punitive damage awards specifically pursuant to 11 U.S.C. § 727 of the bankruptcy code.
23. The five lawyers at Thompson’s firm, the five at the Mooney Law Firm, the 60 at the Rose Law Firm, and a 35-year career judge knew or should have known that. In addition Judge Wright and Assistant United States Attorney Vena knew or should have known that for Underwood reported the fraud on the Bankruptcy and Circuit Court to them. Morrison’s fraud used and caused the use of the United States Postal & Wire Service .
24. Underwood then hired Miller Law Firm to represent Underwood. The Rose Law Firm got to Miller and Miller allowed a continuance to occur which would have forced Underwood to go to the Criminal trial first.
25. Miller was fired and Underwood was forced to proceed pro se if he wanted to go to the civil trial first. A continuance was granted and Underwood went to the civil trial first.
FRAUD ON THE COURT BY THE ROSE LAW FIRM
26. On April 6, 1999, a pretrial hearing was held in Cross County Bank v Underwood. As opposed to informing the court that Morrison committed fraud on the Bankruptcy and Circuit Court pertaining to the bankruptcy the Rose Law Firm committed the same fraud on the Circuit Court as well. They used the same excuse and dropped the lawsuit against Morrison then represented him.
27. On April 19, 1999, the civil trial was held. Underwood was pro se. Underwood’s previous discovery request and subpoena for the 1997 Bank Auditors report was ignored.
28. Throughout the trial the Circuit Court Reporter Robert Kieninger harassed Underwood saying that the judge hated Underwood and was going to rule against him. Consequently, Underwood requested a mistrial based on the court reporter’s harassment but it was denied.
29. Cross County Bank was awarded a $500,000.00 directed verdict then the judge reversed himself in order for Underwood’s tort of outrage to go to the jury. Underwood refused the Rose Law Firm’s intimidation to drop the punitive damages by and through retired Circuit Judge Gerald Brown.
30. In closing argument the Rose Law Firm fraudulent told the jury that the court had awarded them a half million dollars and if they awarded Underwood they were telling the court it was wrong. The jury returned an award of $600,000.00 to Cross County Bank against Underwood for fraud. Underwood was not sued for fraud Morrison was and the suit was dropped. However Underwood was successful in getting the bankers to admit to violations of countless state and federal criminal statutes. In order to prove this to a Federal District Court required a civil trial transcript from a person that makes his living selling civil trial transcripts, Circuit Court Reporter Robert Kieninger.
31. On May 11, 1999 Federal District Judge Susan Webber Wright granted Underwood a six-month continuance to obtain the two-day civil trial transcript to use in is criminal defense. Underwood hired Jerry Coleman of the Durrett & Coleman Law Firm to represent him in the civil appeal and the criminal case.
32. Coleman was paid $10,000.00 of which $2,500.00 was set aside to get the transcript. Coleman sent two letters to Circuit Court Reporter Robert Kieninger requesting the civil trial transcript and assuring his firm was liable.
33. On October 8, 1999, Coleman filed an extension in the civil appeal stating that Circuit Court Reporter Robert Kieninger was too busy to have the civil trial transcript held on April 19, 1999 until January 2000. That was a lie that used and caused the use of the United States Postal & Wire Service .
34. At the criminal trial Coleman, on record in the presence of Assistant United States Attorney George C. Vena, told Judge Wright the same lie.
35. Underwood was acquitted of bribing Morrison but was found guilty of 4 counts of bank fraud. Underwood was sentenced to two-years in the Federal Bureau of Prisons'.
36. On January 3, 2001, Circuit Court Reporter Robert Kieninger responded to Underwood’s two previous letters requesting the hard to get civil trial transcript. Kieninger responded that Coleman told him that Underwood did not want the transcript and to tear up the check.
37. Armed with proof of fraud on the Court by Officers of the Court Underwood filed a Motion to remand to the court of appeals. A copy of all was sent to Federal District Judge Susan Webber Wright. Judge Wright and the court of appeals ignored the fraud to this day.
38. Underwood was discharged from the Federal Bureau of Prisons' on December 21, 2001. He was on supervised release until December 21, 2006. Upon release Underwood started suing lawyers, state and federal judges, Federal Public Defenders and other Officers of the Court.
39. It must be noted that all the unethical, illegal, and impeachable conduct referenced above was reported to Federal District Judges Susan Webber Wright, George Howard Jr. Stephen M. Reasoner, the United States Attorney and Assistant United States Attorney George C. Vena on numerous occasions.
CRISES FOR COURTS.
ADMINISTER JUSTICE OR PROTECT THE BROTHERHOOD
40. Eastern District of Arkansas State and Federal judges faced a crisis of their own making. Do they administer justice or protect the brotherhood. Judicial records showed these state and federal judges protected the brotherhood by:
a) Aiding and abetting the record-setting violations of federally protected rights against Underwood a whistle-blower who had been reporting a pattern of criminal activities involving people in key government and judicial positions.
b) They were directly obstructing justice by blocking the reporting of criminal activities that had serious local and national consequences and that were already inflicting great harm upon the integrity of the State and Federal Courts at the American taxpayers expense.
c) In doing so they increased the federal remedies available to plaintiff, which threatened to expose the explosive judicial misconduct in the state and federal courts.
d) As a result federal district judges, mostly by magistrates, promptly dismissed all civil actions, never once getting to the merits and never once providing plaintiff with his day in court and have the Officers of the Court defendants on record and under oath.
e) Federal district Judges, through law clerks and magistrates, placed a frivolous label on every action that stated record-setting violations of federally protected rights.
f) Federal judges refused to render findings of facts and conclusions of law, thereby avoiding making obvious the sham nature of the frivolous label and violation of important due process remedies.
g) Violated Supreme Court decisions that required recognizing the facts stated in the complaint as true, which stated federal causes of actions (and which were proven as true by judicial records).
h) Violated the large numbers of federal statutes, constitutional protections, and case law that required them to perform the duties of providing a federal court forum and relief.
i) These tactics have repeatedly continued to the date of this lawsuit, and enlarged upon with even greater violations of rights and protections guaranteed by the laws and Constitution of the United States.
41. This court has jurisdiction over these matters.
42. Venue is proper and the plaintiff is entitled to the relief this court can grant.
43. Plaintiff Rudolph W. Underwood, for a fact, is a natural person and resides in Paragould, Greene County, Arkansas.
44. On information and belief Defendant Elaine Person Staton is a resident of Jonesboro, Craighead County, AR
45. On information and belief Defendant Susan Webber Wright is a resident of Little Rock, Pulaski County, AR.
46. On information and belief Defendant H. David Young is a resident of Little Rock, Pulaski County, Arkansas.
47. On information and belief Defendant Michael B. Mukasey is a resident of Washington D.C.
48. On information and belief Defendant Jane Duke is a resident of Little Rock, Pulaski County, AR.
49. On information and belief Defendant George Vena is a resident of Little Rock, Pulaski County, AR.
50. On information and belief Defendant Claretha Nelson is a resident of Little Rock, Pulaski County, AR.
51. On information and belief Defendant Alan Schoessel is a resident of Jonesboro, Craighead County, AR.
52. On information and belief Defendant Rebecca Fulper is a resident of Little Rock, Pulaski County, AR.
53. On information and belief Defendant William O. (“Billy”) James is a resident of Little Rock, Pulaski County, AR
54. On information and belief Defendant James Law Firm’s office is in Little Rock, Pulaski County, AR
FACTUAL BASIS FOR THE CLAIM
55. Underwood was released from the Federal Bureau of Prisons' on December 21, 2001, and transferred back to the jurisdiction of the Federal District Court and its Probation Office for five years supervised release. Defendant Elaine Person Staton was Underwood’s assigned Probation Officer. Staton’s immediate supervisor was Alan L. Schoessel with both under the supervision of Chief Probation Officer Claretha G. Nelson all three were under the direct supervision of Federal District Judge Susan Webber Wright. Quoting Federal District Judge Susan Webber Wright;
• THE COURT…the probation office works for the Court. They're part of the Court. And, therefore, anything that the probation officer says or does is in her role as an employee and an officer of this Court .
56. Shortly after release from prison the government started their plans to send Underwood back to prison by and through Staton’s intimidation.
57. On May 6, 2002, Underwood sent a letter to Probation Officer Elaine Person Staton. Said letter was used by the government as an exhibit in the June 27, 2006, revocation hearing. In part the letter stated.
• I will be filing a lawsuit on my trial counsel very soon followed by a lawsuit on the United States Department of Justice, Judges George Howard Jr., Susan Webber-Wright and her Clerks, and Michele French for R.I.C.O. and Constitutional violations.
• Watch what happens to someone that stands up to these people.
58. On July 1, 2002, in retaliation, Staton filed a Report on Offender Under Supervision against Underwood. The allegation to the court falsely and arrogantly alleged that Underwood was being supported by a married lover [paramour]. Underwood was not aware of the allegation July 1, 2002, filing until a July 16, 2002, letter warning Underwood of his alleged violations. The letter sent three weeks after the filed warning was not consistent with the filed warning.
59. It must be noted that in March 2006, Staton, under oath in three petitions and in court testimony stated Underwood was warned for credit line increases in July 2002 and other months. That was perjury and the docket and file will prove it.
60. On August 6, 2002, Underwood filed a response to being written up. That response was also an exhibit used by the government in the June 27, 2006, revocation hearing. The response in part stated;
• ...this unpopular and disliked Defendant/Probationer knows that the ground work is laid out to place him back in prison or a halfway house and the Probation Office is the best avenue available to the corrupt and threatened feds that require this. The reason is because he refuses to allow the federal bullies to run over him without a fight. After the feds destroy a person they want to keep them down and intimidated.
61. While in prison Underwood discovered a conspiracy by the Rose Law Firm , Judge Wright and Assistant United States Attorney Vena for intentionally withholding a copy of the July 1997 state and federal banking examiners audit report on Cross County Bank from Underwood. Underwood’s PSI report with information obtained from Vena by and through the Rose Law Firm quoted from the auditor’s report.
62. It must be noted that Vena denied every having the auditors report to the Eighth Circuit Court of Appeals and to Judge Wright. After Underwood sent proof using the PSI report Vena never again responded to Underwood’s proof. He did not have to for Judge Wright denied the motion anyway.
63. Since the Probation Office works for Judge Wright Underwood then sought the report from her and the Probation Office.
64. On October 31, 2003, Underwood filed a Motion to compel the United States District Court and the Chief Probation Officer to produce the report. The motion was denied as no merit 5 working days later. Underwood motion for reconsideration was denied as well and as fast.
65. It must be noted that Judge Wright sanctioned President Clinton for a far less severe discovery violation than she committed herself in allowing the Rose Law Firm Vena and others refusing to give Underwood the Auditors Report. In addition she did not sanction the United States Department of Justice or the Rose Law Firm and the Rose Law Firm admitted to intentionally withholding the examiner report from Underwood.
66. In retaliation, on January 13, 2004, Underwood was written up again by Staton for being $311.00 behind in restitution. From Underwood interpretation Staton again stated that Underwood was warned for credit line increases in the 2004 warning. The records proves that is not true. In fact Underwood was commended for his conduct.
67. Since Underwood’s release from prison on December 21, 2001, he started suing Officers of the Court.
68. On March 23, 2006, a Petition for Summons for Offender Under Supervision was filed in the United States District Court for the Eastern District of Arkansas. Said petition was signed verbatim;
• “I declare under penalty of perjury that the foregoing is true and correct”.
• “This form is to be filed with Criminal Docketing as a motion”.
69. On June 21, 2006, a Petition for Summons for Offender Under Supervision “Supplemental” was filed with additional allegations and a request that the motion be heard at the hearing scheduled for June 27, 2006.
70. The Petition for Summons for Offender Under Supervision and the Supplemental was signed under oath by Probation Officer Elaine Person Staton, Probation Officer Supervisors Alan A. Schoessel and Rebecca Fulper, all under the supervision of Chief Probation Officer Claretha G. Nelson. All are employees of and report directly to Federal District Judge Susan Webber Wright.
71. Assistant United States Attorney George C. Vena also signed the Petition for Summons for Offender Under Supervision under oath. Vena is under the direct supervision of United States Attorney Jane Duke.
72. On more than four occasions the Petition for Summons for Offender Under Supervision used and caused the use of the United States Postal & Wire Service.
73. At all times these Officers of the Court from the United States District Court, its Probation Office, and the United States Department of Justice knew the Petition for Summons for Offender Under Supervision and the supplemental was invalid and fraudulent instruments and used only for retaliation.
74. These Officers of the Court used as exhibits Underwood’s prediction four years early that this was coming by and through the Probation Office.
FIRST CLAIM FOR RELIEF
SIXTH AMENDMENT DUE PROCESS VIOLATION
75. Paragraphs 1 through 74 are incorporated by reference.
76. An actual conflict of interest adversely affected Underwood’s court appointed lawyer’s performance.
77. On March 23, 2006, a Petition for Summons for Offender Under Supervision was filed in the Federal District Court for the Eastern District of Arkansas against the plaintiff.
78. It must be noted that nowhere in the petition is criminal conduct alleged. Underwood was violated mainly for buying transportation to work.
79. On May 17, 2006, Judge Wright assigned William O. (“Billy“) James as court appointed lawyer from Little Rock Arkansas. Underwood is a resident of Paragould Arkansas. It is approximately 340 miles round trip between the two cities. It is impossible for a good defense to be made on one visit and it is unfair to the taxpayer and Underwood to have to travel 6 hours and that distance and back for representation.
80. On May 25, 2006, Underwood responded to James letter informing Underwood of his placement as counsel. Underwood’s letter stated;
• “With all being said I feel it appropriate for you to petition the court for withdrawal and that I am appointed local representation”.
81. In a follow up phone call James was mainly interested in having Underwood plead guilty and beg the court for mercy prior to hearing Underwood’s defense. Underwood’s May 27, 2006 letter in part stated;
• After talking to you I feel my chances in court would be better if I was represented by an Assistant United States Attorney than you or your firm. You’re not about to hand me over to the feds and collect a fee for it. I want local-stand-by counsel only. I’m going to fight and I can beat these bastards. I am going to prove this is retaliation for me fighting them back.
• You, like a typical federal public defender, and/or court appointed lawyer, feel the feds can do no wrong and everything alleged against a defendant is true. I know that your fee comes from the Criminal Justice Act but the United States District Court oversees that Department. I want to win not plea bargain, particularly before you even hear my side of the story. Your loyalty and assistance should be to the defendant not the one that sends you a check. However, if you were to win a case they wouldn’t hire you again. More than likely if you had ever won a case you would not be so dependant on court appointed cases.
• Before even hearing my side of the story you wanted me to plea bargain concerning the alleged restitution or I could go back to prison.
82. At all times James assured Underwood the trial could not be held for at least 90 days. Underwood fired James and demanded James send the entire file. James refused to give Underwood his files and ignored Underwood terminating his services.
83. On June 1, 2006, James did file a Report on the Attorney to Judge Wright . James did inform the court Underwood wanted other counsel due to a conflict but stated it was due to distance not a severe conflict between the two. Underwood did not receive a copy of that Motion until Saturday June 17, 2006.
84. On June 12, 2006, Underwood was served with a summons to appear for a hearing on June 27, 2006 and James had all the discovery and would not sent it to Underwood.
85. On Friday June 16, 2006 @ 5:40PM James finally sent Underwood his files consisting of the government’s discovery in a 54 page fax at his employer after closing that was not legible.
86. At trial Underwood refused to allow James to represent him and informed Judge Wright the same. Yet Judge Wright ordered James and his associate to sit through the trial to assist Underwood.
87. At all times Judge Wright knew there was a personality conflict amongst James and Underwood. At the hearing this was obvious.
• THE COURT: Good afternoon. This is a hearing in the United States versus Rudolph W., or Rudy, Underwood. I believe I see Mr. Underwood in the courtroom. Would you please come forward and sit at counsel table. And also, the record needs to reflect that Mr. Bill James, who has been appointed counsel for Mr. Underwood, is present, but it's my understanding that Mr. Underwood wishes to proceed pro se.
is that correct, Mr. Underwood?
• THE DEFENDANT: He will not represent me unless you tell me I am going to go to jail [unless he does].
88. Again James refused to send Underwood’s filed until 10 days before the hearing. Proof of James’ perjury comes from his own records when he states to Judge Wright;
• MR. JAMES: Your Honor, I — as we got things, we sent them to him directly .
89. On August 2, 2006, approximately two weeks prior to Underwood reporting to the Federal Bureau of Prisons' Underwood sent James a Motion and Brief in Support for Sanctions against him to correct his and others fraud and perjured testimony pursuant to 18 U.S.C. § 1621-1623.
90. All motions to the court for fraud on the Court and Motion for New Trial containing James and the governments fraud was sent to James and was ignored.
91. At all relevant times James sat and heard the Judge Wright, the Probation Officer and Vena commit and suborn perjury and he and his associate said nothing.
92. Underwood was denied the effective assistance of counsel all in violation of the Sixth Amendment to the constitution.
93. James in concert with the Judge Wright and Vena intentionally withheld Underwood files until 10 days before the hearing yet he represented to the court Underwood was sent things as they received them. If that was the case why did James not file a single motion particularly for discovery?
94. At no time did James ask for a change of venue and jury trial per Underwood’s instructions. James intentionally withheld his June 1, 2006 pleading until June 17, 2006 to assure Underwood could not get a jury trial within the 10 days time limit before the hearing .
95. The sixth amendment guarantees that a litigant can have a conflict free representation. James and Underwood had a severe conflict of interest.
96. Judge Wright’s failure to conduct an adequate inquiry into defense counsel's potential conflict of interest constitutes a violation of the Sixth Amendment.
97. As a result of the fraud of James and the government Officers of the Court, including Judge Wright, Underwood was found to be in violation of the supervised release and sent to prison. James could have intervened and stopped the fraud but he did nothing but listen and the taxpayers paid him.
98. James’ fraud used and caused the use of the United States Postal & Wire Service .
99. The James Law Firm was hired by and paid by the Federal District Court authorized by Federal District Judge Susan Webber Wright .
100. Underwood is entitled to $1,000,000.00 damages against Judge Wright, James, his associate, and his firm for their violation of Underwood’s constitutional right of the effective assistance of counsel and due process.
101. Underwood is entitled to punitive damages against Judge Wright, James, his associate, and his firm to be set y a jury for his violation of Underwood’s constitutional right of the effective assistance of counsel.
SECOND CLAIM FOR RELIEF
FRAUD ON THE COURT BY OFFICERS OF THE COURT UNDER COLOR OF LAW
102. Paragraphs 1 through 101 are incorporated by reference.
103. Elaine Person Staton is a Federal District Court Probation Officer. On or about December 21, 2001, Staton was assigned to supervise Underwood until December 20, 2006.
104. The March 23, 2006, Petition for Summons for Offender Under Supervision and the June 21, 2006, Supplemental are intentional fraudulent documents that used and caused the use of the United States Postal & Wire Service.
105. The Federal District Court’s Probation Office [the government] was represented by Assistant United States Attorney George C. Vena. The trial testimony of the Officers of the Court was intentional perjury and subornation of perjury by the Officers of the Court, including Judge Wright, all under the color of law.
106. A memorandum to the court, the March 23, 2006, and the June 21, 2006, Supplemental Petition for Summons for Offender Under Supervision all specifically and fraudulently state verbatim;
• History of Supervision: The Court has been notified of previous violations on July 1,2002; January 13, 2004; January 26,2005; May 25,2005; and August 1,2005. Mr. Underwood has continued to open new lines of credit throughout his term of supervision without permission. He has failed to make restitution payments monthly, maintain stable employment, and submit monthly reports in a timely manner. [ A copy of the Petition for Summons for Offender Under Supervision is attached as Plaintiff’s Exhibit “A”]
107. The warning referenced above are all on Probation form 12(a). The 12 (a) form clearly states; “This form is to be filed with Criminal Docketing as a status report”.
108. A true copy of the July 1, 2002, will prove that Underwood was not warned for “continued to open new lines of credit throughout his term of supervision without permission”.
109. A true copy of the January 13, 2004, will prove that Underwood was not warned for “continued to open new lines of credit throughout his term of supervision without permission”. Rather the Probation Officer complimented Underwood’s performance.
110. A true copy of the January 26, 2005, to prove that Underwood was not warned for “continued to open new lines of credit throughout his term of supervision without permission” does not exist and was never filed with the court as required.
111. A true copy of the May 25, 2005, to prove that Underwood was not warned for “continued to open new lines of credit throughout his term of supervision without permission” does not exist and was never filed with the court as required.
112. A true copy of the August 1, 2005 to prove that Underwood was not warned for “continued to open new lines of credit throughout his term of supervision without permission” does not exist and was never filed with the court as required.
113. A true copy of the docket sheet will prove there were no warnings or any filing in the entire year of 2005.
114. Underwood’s supervised release was revoke based in part for purchasing a truck to work. Staton falsely alleged Underwood did not have permission from her to buy this truck. Staton falsely alleges that she warned Underwood on August 1, 2005. The truck was not bought until August 22, 2005 with Staton’s permission. Underwood was not written up for it until March 23, 2006. Underwood did not receive that until May 24, 2006.
115. Defendants Staton, Wright, Duke, Vena, Nelson, Schoessel, Fulper and James are guilty of perjury, subornation of perjury and failure to prevent perjury.
116. Underwood was incarcerated for 6-months based on this fraud.
117. The defendant’s fraud was not limited to the Petition for Summons for Offender Under Supervision and supplement filed using and causing the use of the United States Postal & Wire Service .
118. The defendants are guilty of fraud on the Court by the court and from Officers of the Court at the hearing on record and under oath.
119. The following is Defendant Staton perjury and Vena’s subornation of perjury in court while be questioned by Defendant Vena;
• Vena: Have you filed a violation memorandum in the past based on his failure to pay restitution on a timely basis?
• Staton: Yes. I have filed what we call a 12A notification to the Court, notifying the Court several times since supervision began, discussing his restitution nonpayment and also discussing his opening new lines of credit .
• Vena: Ms. Staton, did you make previous violation memoranda concerning some of these same issues - lines of credit, failure to make restitution payments?
• Staton: Yes.
• Vena: On how many different occasions?
• Staton: On August 1st, 2005, I sent a report to the Court called a 12A. On May 25th, 2005, I sent a 12A. On January 26th, 2005, I sent a 12A. And on July 1st, 2002, there was a filed report stating the same.
• Vena: On each of these occasions, you indicated that Mr. Underwood was not in compliance for those reasons?
• Staton: Yes. The July report, July 2002, was regarding unemployment and also regarding his restitution. The report January 26th, 2005, reported his obtaining credit, also his restitution. The report on May 25th, 2005, reported new lines of credit. The report on August 1st, 2005, reported new lines of credit.
120. More perjury and the subornation of perjury in the presence of Judge Wright and the court appointed lawyer Billy James.
121. Staton and Vena intentionally informed the court that Underwood rented as opposed to leasing his home knowing this was untrue .
122. Staton and Vena intentionally informed the court that Underwood was paying $1,000.00 per month in credit cards knowing that was false .Those intentional fraudulent statements were made in the presence of a Federal District Judge by her employee in the presence of an Assistant United States Attorney that knew she was committing perjury as did Billy James.
123. When under the direct examination of Underwood Staton again committed perjury and Vena, James and Judge Wright knew that was not true. Judge Wright had the docket sheet in front of her at all times.
124. Staton could not prove that she conformed to the court’s rules of filing the form’s on the docket. To cover Staton’s perjury Judge Wright committed perjury herself stating;
• THE COURT: Well, unfortunately, because the file is in an old file, we don't keep all of our old files, and yours is not here .
125. Judge Wright knew the clerk of court keeps the files if they are filed as they are required to be filed.
126. As a result of that fraud Underwood was sentenced to 6-months in prison.
127. Staton, Vena and others informed the court that at all times Underwood was renting property. That was not true Underwood leased his last residence and lost equity because of Staton, Vena, Judge Wright and others fraud.
128. As a result of this fraud Underwood was sent to the Federal Bureau of Prisons' for 6 months.
129. Underwood is entitled to $1,000,000.00 in damages against Staton, Judge Wright ,Claretha G. Nelson, George C. Vena, Alan L. Schoessel, Rebecca Fulper jointly and severally by the defendants.
130. Underwood is entitled to punitive damages from all to be determined by a federal jury.
THIRD CLAIM FOR RELIEF
FIFTH AMENDMENT VIOLATIONS AGAINST SELF INCRIMINATION
131. Paragraphs 1 through 130 are incorporated by reference.
132. Due to the James’ egregious ineffective assistance of counsel Underwood was forced to proceed pro se. At all times Judge Wright vindictiveness was apparent, at all times Judge Wright pretended to not only be the Trier- of- fact but counsel for the government as well.
133. On several occasions Judge Wright attempted to get Underwood to testify against his will. Judge Wright to Underwood while Underwood was at the podium;
• THE COURT: But one of the things that is alleged, and let me get the earlier one — again, I don't have a copy. Here, I do. Yes, I do. First, it's alleged that you are to pay restitution at a minimum of 10 percent of your net monthly household income and. that you have not paid restitution, except for $250, and that you should have paid about $1180. How do you respond to that allegation?
• THE DEFENDANT: Okay. Is that allegation — is that in the original petition. Judge?
• THE COURT: It's in the petition that was filed June 21st and that is --
• THE DEFENDANT: I thought you said you wasn't going to allow that.
• THE COURT: Hold it. All right. This says —again, it's similar. You're to disclose financial information. Let me see. That was the first one. I will start — also, there is a similar allegation. Let's just talk about supervised release -- excuse me, restitution and that 10 percent at that point of your net household income would be $2,350, which is even more than is alleged now. Would you like to respond to that as to why you did not pay restitution?
• THE DEFENDANT: At this time I would not. I would like to cross-examine the witnesses and do it that way.
• THE COURT: So you contest that. All right. Another allegation is that you are not to establish any new lines of credit without prior approval of the probation office and that you, in fact, have done that. You have bought a vehicle. The original loan amount was $31,075. There was a current balance in — back in March of $30,563 and a monthly payment of $500. Also, other new lines of credit that you opened without prior approval of the probation office included a credit card from Merrick, also a credit card with Capital One and a credit card with Hongkong and Shanghai Banking Corporation — that's HSBC Nevada — a balance of $259 on that one. The others also had balances. And that you have failed to submit to the probation office a probation report within the first five days of each month and you either did not submit reports or the reports you did submit were late. And so those are the allegations that we will go on.
• THE DEFENDANT: I understand.
• THE COURT: Now, what about the -- let's take up the matter of the credit cards and the purchase of the vehicle. Do you dispute that?
• THE DEFENDANT: I dispute -- that I did not do it without permission, I dispute that.
• THE COURT: In other words, who gave -- are you going to put on evidence that someone gave you permission?
• THE DEFENDANT: Yes, ma'am. I am going to put on evidence, Your Honor. I am not going to say I will put on evidence that someone told me to do it, no. But I would like to address these again when I cross-examine.
• THE COURT: All right. And what about failure to file reports with probation?
• THE DEFENDANT: I contest all of that. In fact, I even -- I make the allegation that the forms that I am required to submit are not only inaccurate and misrepresentations, they're illegal.
• THE COURT: All right. What I am going to do then, now that we know what you are contesting, you may be seated and I am going to let Mr. Vena put on any evidence he might have in support of this petition to revoke. And you may call witnesses, Mr. Vena .
134. At all relevant times Judge Wright knew that Underwood should not have been quizzed by the government and particularly the trier of fact. She even acknowledged that after the damage was done. Judge Wright stated;
• THE COURT: I know we’re not here for you to testify, but I want to dispose of this issue .
135. Judge Wright violated Underwood’s constitutional right guaranteed him in the Fifth Amendment to the Constitution against self incrimination.
136. Vena even used Judge Wright’s violation to his advantage in legal pleadings stating Underwood admitted to guilt. Underwood never took the stand and the court appointed lawyer listened, and said nothing about Judge Wright’s violations.
137. At all times Judge Wright would object when Underwood was about to catch the Probation Officer in another lie. Judge Wright’s objections became so obvious that Underwood protested to her stating;
• THE DEFENDANT: Judge, I'm really trying to hit a home run here and, when you interrupt me like that, you just defeat me .
138. As a result of Judge Wright’s fraud and violations of Underwood’s constitutional rights Underwood was sent to the Federal Bureau of Prisons' for six months for a non criminal violation.
139. Underwood is entitled to $1,000,000.00 in damages against Judge Wright for her conduct.
140. Underwood is entitled to punitive damages against Judge Wright for her unethical, illegal, and impeachable conduct in an amount to be determined by a federal jury.
FOURTH CLAIM FOR RELIEF DUE PROCESS VIOLATION
141. Paragraphs 1 through 140 are incorporated by reference.
142. Federal District Judge Susan Webber Wright ,Assistant United States Attorney and others violated Underwood’s due process rights. As a result of retaliation Underwood was sent to the Federal Bureau of Prisons' 500 miles from his family, in a maximum security conditions housed with child molesters, murderers, rapist, armed robbers and etc.
143. As soon as possible after being released Underwood sought justice in the presiding Judge Wright’s court. Since 2001, Assistant United States Attorney George C. Vena has had the convenience of not having to answer this plaintiff’s legal pleadings. There is a purpose for that. Vena and Judge Wright together have unclean hands. His perjury would only increase if he were to respond. This is obvious since there is a pattern of Judge Wright responding to this plaintiff’s pleading in some case within 4 days of being filed in order to keep Vena from responding.
144. For illustration purposes only the plaintiff will use Vena’s last pleading as a most recent pleading.
145. On June 13, 2007, Underwood filed a Motion to Compel the Assistant United States Attorney to respond to Underwood’s 28 U.S.C. § 2255 Motion to Vacate Set aside or Correct the Sentence .
146. On June 26, 2007, Underwood’s motion to recuse Judge Wright was filed. Simultaneously with the 2255 Motion. On June 29, 2007 Judge Wright ordered the Assistant United States Attorney to respond to the 2255 motion to vacate within 20 days.
147. It must be noted that Vena’s response was filed Wednesday July 17, 2007.
148. On July 19, 2007 the court denied the Motion to Recuse acknowledged that Vena had responded then quoted from Vena’s ordered response and denied Underwood’s 2255 two days after Vena filed his response and the same day Underwood received it.
149. Assistant United States Attorney George C. Vena response is in violation of candor towards the tribunal and an intentional misrepresentation of statutes, cases and codes. In doing so Vena used and caused the use of the United States Wire & Postal Service.
150. At all relevant times Vena knew that while in Judge Wright’s court he was in protected territory from misuse of his office and violations of law. For illustration purposes only the following will prove Vena’s and Judge Wright buddy system.
151. Vena quoting Azzone v USA 341 F.2d 417 may be correct that since Underwood was not in custody relief from 28 U.S.C. § 2255 is not appropriate. However Vena job is not win. He and Judge Wright are to assure that justice prevails. Vena should have informed the court that in the interest of justice captions do not matter and went further in the case he cited that also stated;
• We granted appellant's application for leave to appeal in forma pauperis upon the questions: (1) whether, beyond the District Court's disposition of appellant's motion to vacate the judgment on the basis of § 2255, the motion should also have been treated and considered as one for a writ of error coram nobis; and (2) whether, if the motion should have been so treated and considered, the facts and situation alleged were such as to have entitled appellant to a hearing thereon.
• Preliminarily, we concur in the trial court's view and holding that inasmuch as appellant has been released from custody under the sentence which he is attacking, relief is not available to him under 28 U.S.C.A. § 2255. See in addition to the cases cited in the District Court's opinion (222 F.Supp. at page 1022). Heflin v. United States, 358 U.S. 415, 420, 79 S.Ct. 451, 3 L.Ed. 2d 407 (1959) and Perry v. United States, 314 F.2d 52, 53 (8 Cir.1963).
• Passing to the questions for determination, United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954) stands for the proposition that by a proceeding in the nature of coram nobis, the convicted party may proceed in a federal district court to have set aside his conviction and sentence in that court for a federal offense, though he had served the full time for which he had been sentenced. In Morgan, the Court held that regardless of how the papers are labeled, "federal courts should act in doing justice if the record makes plain a right to relief". 346 U.S. at page 502, 74 S.Ct. at page 249. But the Court added the caveat: "Continuation of litigation after final judgment and exhaustion or waiver of any statutory right of review should be allowed through this extraordinary remedy only under circumstances compelling such action to achieve justice", and that the writ is designed to correct errors "`of the most fundamental character'". 346 U.S. pp. 511, 512, 74 S.Ct. pp. 252, 253.
152. It was evident that Vena and Judge Wright do not want justice to prevail since it would come at their detriment.
153. Vena informs Judge Wright that the Eighth Circuit Court of Appeals states the Eighth Circuit has previously declared that a criminal defendant does not have an "absolute right to counsel of his own choosing." Carey v. State of Minn.. 767 F.2d 440, 441 (8th Cir. 1995) (citing Williams v. Nix. 751 F.2d 956, 959 (8th Cir. 1985)}.
154. Quoting the Supreme Court it states in POWELL V. ALABAMA. 287 US 45, 77 LEd158, 53 SCt 55 (1932) An accused has a fundamental right to be represented by counsel of his own choice. The right to be represented by counsel of one's choice. Id @70, 62 SCt 464.
• Vena: Underwood failed to raise an objection to notice of the hearing; therefore, he forfeited his right to appeal the issue without a showing of actual prejudice.
155. That is not true. The court in reference to Underwood’s protest.
• THE COURT: All right. Well, we, I -- you have placed on the record, you know, your allegations about the timeliness. My record also indicates that the summons was executed on June 11th .
• THE COURT: If there is anything in here that you believe you just -- that you didn't have adequate notice to prepare, you may of course say so .
• Vena: The United States further asserts that Underwood failed to raise an objection regarding the "pre-sentence memogram" he references in his motion; therefore, he failed to preserve this issue for review.
• THE DEFENDANT: I have. There was another paper she given me about ten minutes ago that I have never seen that has got some additional statements that was not in the, in the petition, and it's my understanding this is treated as a motion .
• Vena: Underwood alleges that the United States Probation Office and its employees, the United States Attorney’s Office, and the United States District Court conspired against him to present false and misleading information to the Court Underwood's pleadings contain mere allegations without factual or legal support. .
156. Some big false and misleading statements was Vena and Staton stated under oath in three petitions and in trial that Underwood was warned for opening new lines of credit in July 1, 2002, January 13, 2004, January 26, 2005, May 25, 2005 and August 1, 2005.
157. The July 1, 2002 and the January 13, 2004, exhibits ?? are proof positive that Underwood was never warned about opening new lines of credit. The docket sheet itself will prove there were no warnings in the alleged January 26, 2005, May 25, 2005 and August 1, 2005 warning. There was nothing filed the entire year of 2005.
158. The Defendants’ conduct described above constitutes unprofessional, unfair, and unlawful, and fraudulent practice of law in violation of Arkansas Supreme Court Committee on Professional Conduct and in violation of state and federal criminal statutes.
159. These wrongful acts have proximately caused and will continue to cause Underwood substantial injury, including loss of existing property, ability to earn a living.
160. Underwood is entitled to recover, and hereby seeks $1,000,000.00 jointly and severally , from the Defendants George C. Vena and Susan Webber Wright the damages sustained by and as a result of the Defendants’ wrongful acts.
161. The conduct of the Defendants was fraudulent, oppressive, malicious, and in conscious disregard of the rights of Underwood. Underwood is therefore entitled to
punitive damages against Defendants Vena and Wright in an amount to be determined by a federal jury.
FIFTH CLAIM FOR RELIEF CONSPIRACY
162. Paragraphs 1 through 161 are incorporated by reference
163. By the activities set forth above, each of the Defendants conspired with at
least one other person to retaliate against Underwood and violate his due process right to a fair trial.
164. Each participant in the conspiracy is jointly and severally liable for the acts of each other conspirator. In addition, the Defendants conspiracy
(a) caused Underwood to lose his real and personal property.
(b) Destroyed Underwood’s credit.
(c) Cause Underwood to lose custody of his minor children
(d) Caused Underwood to place his 88 year-old mother under government care.
(e) Placed Underwood in a maximum security prison with murders and child molesters for a non criminal violation.
165. As a direct result of the Defendants’ participation in the conspiracy, Underwood suffered and continues to suffer substantial damages, for which it sues to recover damages of $1,000,000.00 from the defendants jointly and severally .
166. Defendants are guilty of oppression, fraud and malice in the conduct alleged above, such that Underwood is entitled to an award of exemplary and punitive damages for an amount to be determined by a federal jury.
SIXTH CLAIM FOR RELIEF
ACTION FOR NEGLECT TO PREVENT A CONSPIRACY 42 U.S.C. § 1986
167. Paragraphs 1 through 166 are incorporated by reference.
168. Each Defendant had knowledge that all of the above stated wrongs conspired to be done.
169. All defendants by reasonable diligence could have prevented the conspiracy.
170. Each Defendant are Officers of the Court thus having power to prevent or aid in preventing the commission of the same, neglected or refused to do so.
171. Each defendant was sent a letter in compliance with the 21 day ruling pursuant to Rules 11 of the Federal Rules of Civil Procedure for sanctions and still no one came forward and reported the conspiracy or recanted their fraud.
172. Underwood was sent to the Federal Bureau of Prisons' as a result of these Defendant’s neglect to prevent a conspiracy.
173. Underwood is entitled to damages in the amount of $1,000,000.00 jointly and severally against these defendants.
174. Underwood is entitled to punitive damages in an amount to be determined by a federal jury.
SEVENTH CLAIM FOR RELIEF
DUE PROCESS VIOLATION JUDGE WRIGHT/ MAGISTRATE JUDGE H. DAVID YOUNG
BACKGROUND OF IMPORTANT EVENTS
175. Paragraphs 1 through 174 are incorporated by reference.
176. On April 19, 20, 1999, Cross County Bank v Underwood was heard. Underwood intentionally wanted his civil trial heard first in order to prove to a Federal District Court and jury that the bankers were being protected by the United States Department of Justice and the bankers were the true criminals.
177. On May 11, 1999, Federal District Judge Wright continued Underwood’s criminal trial to October 12, 1999, specifically so that he may obtain a civil trial transcript to use in his criminal trial.
178. Underwood paid his defense lawyer Gerald A. Coleman $10,000.00 of which $2,500.00 was designated for the civil trial transcript. In June 1999, Coleman sent two letters to the Circuit Court Reporter Robert Kieninger ordering the transcript and that his firm would pay for the civil trial transcript.
179. Any prosecutor would take full advantage and obtain a civil trial transcript of a civil trial with the same person he was prosecuting for the same facts providing the people he was protecting did not incriminate themselves. Then they would not want a civil trial transcript to be available.
180. Throughout these allegations one can say a court reporter’s bread and butters comes from selling court transcripts. Why would he not sell Underwood a civil trial transcript? Fraud. The Rose Law Firm, Assistant United States Attorney Vena, and Judge Wright saw to it that the civil trial transcript would never be available.
181. Underwood went to trial without the transcript. Underwood later sent a copy of the letter from the court reporter to Judge Wright stating according to Coleman Underwood did not want the civil trial transcript. Judge Wright and Vena ignored the fraud because they were part of it together with the Rose Law Firm.
182. After prison Underwood filed motions to the two circuit judges to compel the production of the civil trial transcript by the Circuit Court Reporter Robert Kieninger and was ignored. Underwood sent certified letters to the court reporter and was ignored. Circuit Judge James D. Burnett ordered Underwood to obtain a copy of the civil trial transcript or he would dismiss the lawsuit within 6 months.
183. On April 8, 2002, Underwood v Turner-4-02-CV-00-124 was filed in the Federal District Court for the Eastern District of Arkansas. The defendants were Judges Turner, Hill and Circuit Court Reporter Robert Kieninger. An In Forma Pauperis petition was filed simultaneously with the complaint. Former Federal District Judge Stephen M. Reasoner, deceased, and current Magistrate Judge H. David Young was assigned to the case.
184. The defendants were the Arkansas Attorney General Mark Pryor, Circuit Judge Samuel Turner Jr. retired, his successor Circuit Judge Victor L. Hill, the civil court reporter Robert Kieninger and his company Accuprompt Reporting Service. A copy of the lawsuit was sent to each officers of the court defendant by certified mail at the address that was in the Petitioner’s certificate of service. A waiver of service of summons was included. All of these officers of the court had a duty to waiver service of summons but ignored it.
185. On May 28, 2002, Judge Reasoner granted the petitioner’s In Forma Pauperis petition. Judge Reasoner assumed senior status on September 17, 2002. At no time was an order issued to the clerk by Judges Reasoner or Young to instruct the United States Marshal's Service to serve the defendants
186. On March 31, 2003, an Order was entered by Judge Reasoner stating;
• The complaint in this action was filed on April 8, 2002 and Plaintiff was granted leave to proceed in forma pauperis On May 28, 2002. As of the date of the entry of this Order, plaintiff has failed to perfect service of process on defendants.
• It is, therefore, ORDERED that the complaint is dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4 (m). If plaintiff shows good cause for the failure to perfect service, the Court will entertain a motion to reopen the action.
187. On April 15, 2003, Underwood filed a Motion to Set the Order Aside with a brief in support. A motion and brief in support for Judge Reasoner to recuse was filed on June 20, 2003.
188. On June 30, 2003; Judge Reasoner issued an ORDER stating;
• by Judge Stephen M. Reasoner denying plaintiff’s motion for recusal of Judge Reasoner [ denying plaintiff’s motion for default judgment against Samuel Turner Jr, Accuprompt Reporting, Robert Kieninger & Victor L Hill [ granting plaintiff’s motion to set aside order [ and referring to Mag. Judge H. D. Young the motion for appointment of counsel [ as well as the matter of service; Clerk is directed to reopen case (cc: all counsel) [ Entered: 06/30/03, By: tm]
189. On September 19, 2003, Magistrate Judge young entered an order stating
• United States District Judge Stephen M. Reasoner has referred to the undersigned the matter of service and the pending motion for appointment of counsel.
• The plaintiff has previously been granted informa pauperis status. We find that service is appropriate. The Clerk of the Court “shall” [mandatory] prepare summons for the defendants and the United States Marshal is directed to serve a copy of the complaint and summons on the defendants, without fees or costs or prepayment therefor.
• The motion for appointment of counsel is denied at this time due to the status of the case (no answers have been filed) and the need for additional information from the plaintiff. The plaintiff may renew the motion by filing a motion for appointment of counsel and by indicating what efforts he has made to secure representation. The plaintiff, at a minimum, should contact three attorneys to determine if they might represent him in this matter and submit documentation of the responses from the attorneys.
190. The case docket sheet stated;
• ORDER by Magistrate Judge H. D. Young denying plaintiff’s motion for appointment of counsel [ w/o prejudice to renew with additional information from the plaintiff; the Clerk is directed to issue summons and the U.S. Marshal to serve the summons and complaint upon defendants. (cc: all counsel) [ Entered: 09/15/03, By: mf]
191. On September 15, 2003, a “SUMMONS issued as to defendants Victor L Hill, Robert Kieninger, Samuel Turner Jr, and Accuprompt Reporting; forwarded to U.S. Marshal for service pursuant to Order entered this date. [ Entered: 09/15/03, By: mfJ]
192. On September 23, 2002, MARSHAL’S RETURN OF SERVICE unexecuted - attempted as to defendant Accuprompt Reporting [ Entered: 09/25/03, By: mf]
193. On September 25, 2003, MARSHALS RETURN OF SERVICE unexecuted - attempted as to deft Samuel Turner Jr [ Entered:09/26/03, By: it]
194. On September 25, 2003, MARSHALS RETURN OF SERVICE unexecuted - attempted as to deft Victor L Hill [ Entered: 09/26/03, By:jt]
195. On October 3, 2003, MARSHAL’S ‘RETURN OF SERVICE unexecuted -
196. attempted as to defendant Robert Kieninger [ Entered:
197. On October 15, 2003, Underwood filed a Motion and Brief in Support. The captions stated “Motion for Change of Venue and Reconsideration of Recusal
of Judge Stephen M. Reasoner and Notice of Civil Rights Violations by the Clerk of
198. This must be noted; the three defendants work for the circuit court at the Craighead County Courthouse that is next door to the
199. The court’s docket sheet worded the motion and brief verbatim “MOTION by plaintiff Rudolph W Underwood to change venue, and to recuse [ Entered: 10/16/03, By: tm]. MEMORANDUM by plaintiff Rudolph W Underwood in support of motion to change venue [ of motion to recuse [ [ Entered: 10/16/03, By: tm] The civil rights violations of the clerk of court was not noted.
200. The reason the clerk of court was careful in docket the caption was obvious. In part the motion and brief stated;
• The Clerk of Court intentionally withheld from filing the Complaint awaiting for Judge Wilson to enter an order not allowing Underwood's First Amended Complaint to be filed. This was done to protect the elite and lawyer Defendants. Most of those Defendants have refused service. The process server for the Marshal’s Service is either unable or unwilling to serve the rest particularly their buddies at the FBI.
• Like this Court Judge Wilson [Underwood v Ashcroft 4:02-CV-00-652] has used every stall tactic available to allow the Defendants to escape the wrath of justice as well as has allowed the statute of limitation to protect some of the corrupt Defendants. The case before judge Wilson Jr., again was filed in October 2002. Underwood has been waiting since February 2003 for Judge Wilson to rule on a Motion for the Appointment of Counsel.
• The actions of this case Defendant Judges as well as the actions of the judges of the United States District Court for the Eastern District of Arkansas are proof in part that the United States Judicial System is unconstitutional and grossly unfair to African, Latin, and poor Caucasian Americans. One example of the hypocrisy is the United States District Court’s Preamble which states: “The mission of the United States District Court for the Eastern District of Arkansas is to provide an impartial and accessible forum for the just, timely and economical resolution of legal proceedings within the jurisdiction of the Courts, so as to preserve judicial independence, protect individual rights and liberties, and promote public trust and confidence”.
• To classify the United States Department of Justice, the United States District Court, and the American Bar Association as organized criminals is to complimentary. There is nothing organized about them. They don’t have to be organized for they answer only to themselves.
• If there is any justice left in this corrupt Eastern District of Arkansas this Court will grant a Change of Venue preferably out of the entire State of Arkansas and Judge Reasoner will recuse himself and an investigation will be held for the clerk of courts violations of Underwood's civil rights.
• Based on the stall tactics by judges Wilson and Reasoner the Plaintiff can only conclude that neither Judges Wilson and Reasoner are about to appoint this Plaintiff competent and justice seeking counsel. There are too many lawyers, judges, politicians, bankers and in particular Judge Wright, as well as, other elite whose careers will end once their illegal, unfair, unethical and incompetent actions is disclosed.
• Judges Wright, Wilson Jr., Howard Jr., Reasoner and every other state and federal judge in the Eastern District of Arkansas know this Plaintiff’s civil judgment and criminal conviction was through fraud on the Court by the alleged victim, lawyers, judges and the United States Department of Justice.
• This present lawsuit was filed eighteen (18) months ago in April 2002. Justice requires the Plaintiff’s Motions be granted and a federal grand jury investigation be ordered.
201. Granted Judge Reasoner was terminally ill and assumed senor status in September 2002. However, Judge Young wasn’t ill all that time.
202. On January 14, 2004, Underwood filed “MOTION by plaintiff Rudolph W Underwood for personal service on defendants, or, to extend time for service of summons [ Entered: 01/14/04, By: jt]
203. February 05, 2004, an ORDER by Judge Stephen M. Reasoner denying plaintiff’s motion to change venue [ denying plaintiffs motion to recuse [ Case referred to Mag. Judge H. D. Young for disposition or recommended disposition of all pending & future motions(cc: all counsel) [ Entered: 02/05/04, By: jt]”. The issue of civil rights violations by Judge Wilson and the Clerk of Court was placed on Magistrate Judge Young.
204. February 10, 2004, ORDER by Magistrate Judge Young denying plaintiff’s motion for personal service on defendants [ granting plaintiff’s motion to extend time for service of summons [ plaintiff is directed to provide the U.S. Marshal with additional information in order to assist in the service of process; this information should be provided on or before March 12, 2004; denying plaintiff’s motion for appointment of counsel  (cc: all counsel) [ Entered: 02/10/04, By: mfj
205. In the Magistrate Judge’s order he states;
• The plaintiff has also filed a motion for personal service on the defendants or extension of time for service of summons. (Docket entry 4 20). By Order dated September 15, 2003, the Court directed the United States Marshal to serve a copy of the complaint and summons on the defendants, without fees or costs or prepayment therefor. Attempts to serve all defendants by the Marshal were unsuccessful.
• While the plaintiff faults the Marshal’s efforts and suggests the Marshal is working with “judges, law clerks, and clerk of court for the Eastern District of Arkansas” to frustrate the plaintiffs case, we find no fault with the Marshal. The record reflects the plaintiff provided only the name and city for three of the named defendants. With respect to the fourth defendant, the plaintiff provided “Robert Kieninger, 15 Craighead 917, Brookland. AR” as a mailing address. All four attempts to serve by certified mail were returned unexecuted.
• The plaintiffs motion for personal service is denied. The Marshal cannot reasonably be expected to serve these defendants with the scant information provided by the plaintiff. We will grant the plaintiffs motion for additional time in which to serve the summons. The plaintiff is directed to provide the Marshal with additional information in order to assist in the service of process. This information should be provided on or before March 12. 2004. Should the plaintiff provide the Marshal with additional information, the Marshal is then directed to serve a copy of the complaint and summons on the defendants, without fees or costs or prepayment therefor.
206. There was a fourth motion that was pending. The civil rights violations of the clerk of court and judge Wilson Jr. On March 11, 2004, Underwood complied with Magistrate Judge Young’s order to help the United States Marshal's Service serve the defendants . Again, when the plaintiff sent the original compliant to the defendants they were received.
207. On March 11, 2004 “SUMMONS issued as to defendants Victor L Hill, Robert Kieninger, Samuel Turner Jr, Accuprompt Reporting and forwarded to the U.S. Marshal for service pursuant to the Court’s Order entered 2/10/04 and pltf’s 3/11/04 response containing proper addresses for the named defendants to assist the U.S. Marshal in this service of process. [ Entered: 03/11/04, By: mf]
208. March 19, 2004, RETURN OF SERVICE unexecuted - attempted as to defendant Robert Kieninger. [ Entered: 03/23/04, By: mfj RETURN OF SERVICE unexecuted - attempted as to defendant Accuprompt Reporting. [ Entered: 03/23/04,
209. On March 26, 2004 Underwood filed MOTION by pltf Rudolph W Underwood for personal service on separate defendant Robert Kieninger & Accuprompt Reporting Service [ Entered: 03/26/04, By: jt]
210. In part that Motion stated;
• On March 20, 2004, Underwood received notice from the Marshal’s Service that Defendant Robert Kieninger’s was sent a copy of the Civil Complaint by certified mail number 7002-0510-0001-8882-2288.
• According to the Marshal’s Service form USM 285, Plaintiff’s Exhibit “A”, the Complaint to Defendant Robert Kieninger was “Returned Unexecuted” and dated 3/31/04 (March 31, 2004), nine days from the day this Motion is prepared.
• On March 20, 2004, Underwood received notice that Defendant Accuprompt Reporting Service was sent a copy of the Civil Complaint by certified mail number 7002-0510-0001-8882-2295.
• According to the Marshal’s Service form USM 285, Plaintiff’s Exhibit “B”, the Plaintiff’s Civil Complaint was “Returned Unexecuted” to Kieninger and dated March 31, 2004, nine days from the day this Motion is prepared.
• Defendant Kieninger is an officer of the Court. As an officer of the court Kieninger knows he has a duty to eliminate unnecessary cost. These defendants have been aware of this lawsuit since April 2002. This court, the Marshal’s Service, and others have protected these defendants long enough. The defendants must be served and brought to justice.
• Pursuant to Rule 4,(d) (Waiver of Service; Duty to Save Costs of Service; Request to Waive), of the Federal Rules of Civil this court should exercise its discretion and order the Marshal’s Service to personally serve Defendants Accuprompt and Kieninger and access all charges to the Defendants .
• The Plaintiff requests and justice requires a federal grand jury investigation into these proceedings and the events leading to these proceedings.
211. On April 4, 2004, Separate Defendant Judge Turner filed a motion to dismiss by and through his counsel Sherry Robinson an Assistant Arkansas Attorney General. Judge Hill’s Motion to Dismiss was filed on April 9, 2004. Underwood responded in a timely manner to the motions to dismiss.
212. On August 14, 2004, Federal District Judge Stephen M. Reasoner died. On August 25, 2004, the case was reassigned to Judge Wright..
213. On September 17, 2004, Magistrate Judge Young submitted his findings and recommendations. In part, it stated;
• Three motions are pending in this action brought by Rudolph W. Underwood pursuant to 42 U.S.C. § 1983.
• In summary, we recommend the motions to dismiss defendants Turner and Hill be granted, the motion for personal service of defendants Kieninger and Accuprompt be denied, and that defendants Kieninger and Accuprompt be dismissed for failure of the plaintiff to perfect service on these defendants.
• IT IS SO ORDERED this 17 day of September, 2004.
214. The Petitioner will address matters contained in the Magistrate Judges unfiled cover letters as well as his shameful and felonious findings and recommendations.
• Judge Young: If you are objecting to the recommendation, and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the district judge, you must, at the same time that you file your written objections, include the following: 2. Why the evidence to be proffered at the hearing before the district judge (if such a hearing is granted) was not offered at the hearing before the magistrate judge.
215. In reference to paragraph 2. this Petitioner has never appeared before Magistrate Judge Young at any time. Granted he does mention that Underwood sued the defendants on 6-counts of Constitutional violations nothing else is mentioned pertaining to that other than the judges have absolute immunity.
• Judge Young …While the civil suit was pending, Mr. Underwood was indicted in federal court for five counts of bank fraud and one count of receipt of gifts or commissions for procuring loans. The civil trial, conducted in April of 1999, resulted in a judgment against the plaintiff in the amount of $500,000. In his criminal trial, conducted in October of 1999, Mr. Underwood was convicted of 4 counts of bank fraud in federal court.
216. In reference to the above the Cross County Bank claims a civil judgment for $1,200,000.00 in the civil matter. Underwood was not indicted on 5 counts of bank fraud rather 4 counts of bank fraud. Judge Young makes mention of the bank fraud convictions but says nothing about the acquittal of the bribery count.
• Judge Young: One of the pending motions is the plaintiff’s motion for personal service on defendants Robert Kieninger and Accuprompt Reporting Service (“Accuprompt”). See docket entry no. 28. Mr. Underwood recites that Kieninger and Accuprompt were mailed, by certified mail, a copy of the complaint in April of 2002. In addition, the United States Marshal’s Service sent a copy of the complaint to Kieninger and Accuprompt in March of 2004, according to Underwood. Kieninger and Accuprompt have not been served despite the attempts to reach them by certified mail. Mr. Underwood, alleging that this Court, the Marshal’s service and “others” have protected Kieninger and Accuprompt long enough, asks the Court to order personal service on these defendants. The motion for personal service is denied. While Mr. Underwood suggests some sort of conspiracy is to blame for the failure to serve these defendants, the record suggests a simpler explanation — the Marshal has not been supplied with an accurate address for Kieninger and Accuprompt. Mr. Underwood does not provide the Court with an additional address for these defendants, and the Court finds the plaintiff’s motion is without merit. Therefore, we recommend that the motion for personal service be denied. We further recommend that the complaint against Kieninger and Accuprompt be dismissed for failure to perfect service upon these defendants.
217. The Petitioner response to the above. This lawsuit was filed on April 8, 2002, and a Petition for In Forma Pauperis was filed and granted on May 25, 2002. The defendants are Circuit Judge Samuel Turner Jr., Circuit Judge Victor L. Hill, Accuprompt Reporting service Inc., and Robert Kieninger who is the owner of Accuprompt.
218. The United States Marshal's Service in Jonesboro Arkansas is located on the 4 th floor of the Federal District Court. Those three defendant’s are circuit judges and their accompanied court reporter. There is a substantial likelihood of finding a circuit judge, with his court reporter in a circuit court house, that is next door to the Federal District Court where the marshals work. Any circuit court clerk responsible for getting mail to the judges and the court reporter could have served these officers of the court years ago.
219. On Tuesday September 28, 2004, Underwood mailed his reply and objections to the court that could not have been received before Wednesday September 29, 2004. On Friday October 1, 2004, an order was entered.
• The Court has received proposed Findings and Recommendations from Magistrate Judge H. David Young. After careful review of those Findings and Recommendations, and the timely objections received thereto, the Court concludes that the Findings and Recommendations should be, and hereby are, approved and adopted in their entirety as this Court’s findings in all respects. Judgment will be entered accordingly. IT IS SO ORDERED this 1st day of October 2004. Susan Webber Wright.
220. The same judge that granted Underwood a continuance from May 11, 1999 to October 12, 1999 to obtain a civil trial transcript to use in his criminal trial dismissed the lawsuit against the court reporter for service issues, after careful review.
221. To this day Judges Reasoner, Young or Wright have yet to rule on Underwood’s October 2003 Motion concerning the Clerk of Court violations of Underwood’s Civil Rights.
222. The conduct of Judges Wright and Young are an obstruction of justice. The conduct of the judges prevented Underwood from due process and equal protection of the law.
223. Underwood is entitled to recover, and hereby seeks $1,000,000.00 jointly and severally , from Federal District Judge Susan Webber Wright and Federal Magistrate Judge H. David Young in damages sustained by and as a result of the Defendants’ wrongful acts.
224. The conduct of the Defendants was fraudulent, oppressive, malicious, and in conscious disregard of the rights of Underwood. Underwood is therefore entitled to punitive damages against Defendants Vena and Wright in an amount to be determined by a federal jury.
EIGHTH CLAIM FOR RELIEF FRAUD ON THE COURT
225. Paragraphs 1 through 224 and all sub paragraphs are incorporated by reference.
226. On Friday @ 4:05 PM on May 2, 2008, Underwood did file 140 page Motion with Brief in Support for a Writ of Scire Facias.
227. Said writ of Scire Facias is an alternative to impeachment of miscreant judges. The writ requested the removal of Federal District Judge Susan Webber Wright from the bench for violations of Article III pertaining to in part the good behavior clause. Simultaneously a Motion to Recuse Judge Wright and all the Federal District Judge at the Federal District Court for the Eastern District of Arkansas was filed with the Writ.
228. On Thursday @ 2:55 PM on May 8, 2008, actually within three working days of filing, Judge Wright issued an order denying the Writ and all recusals as moot.
229. Said Writ contained proof that;
a) Judge Wright has been without jurisdiction since September 1998;
b) The Eastern District of Arkansas justice system is a criminal enterprise.
c) Judge Wright Is guilty of unethical, illegal, and impeachable conduct.
230. Judge Wright knew she was guilty of previously violating Underwood’s constitutional rights and therefore she dismissed her own fraudulent conduct in her own court and committed fraud on the Court in doing so.
231. Judge Wright has again violated Underwood’s rights to due process and as a result Underwood has suffered and continues to suffer from Judge Wright’s unethical, illegal, and impeachable conduct.
232. Underwood seeks an injunction against Judge Wright and an order to;
a) set aside her previous orders.
b) The Motion for a Writ of Scire Facias be reassigned.
c) A federal grand jury investigation into the unethical, illegal, and impeachable conduct of Judge Wright and others
NINTH CLAIM FOR RELIEF CIVIL RICO
233. Paragraphs 1 through 232 are incorporated by reference.
234. The defendants are employed by or associated with a criminal enterprise as that term is defined in 18 U.S.C. § 1961. That criminal enterprise consists of the Federal District Court, Justice Department and the Jonesboro/Paragould Arkansas Prosecuting Attorney and Deputy Prosecuting Attorneys. The former Jonesboro, AR Prosecuting Attorney Brent Davis and a former Paragould Deputy Prosecuting Attorney Randy F. Philhours are now circuit judges.
235. The criminal enterprise was an is an ongoing organization directed by Judge Wright, Jane W. Duke, Brent Davis, Branch, Thompson, Philhours, & Warmath Law Firm and Municipal/District Judge Dan Stidham.
236. This criminal enterprise transacts business in interstate commerce by means of the mails, the wires, and the Internet. Their fraudulent funds are placed in banks who deposits are insured by the FDIC.
237. Through and by means of their association with the criminal enterprise, Defendants engaged in a continuous pattern of racketeering activity that adversely effected Underwood and others for more than one year, a pattern that included the commission of myriad predicate criminal acts. These predicate acts included, but were not limited to, the following:
a) Mail Fraud (18 U.S.C. § 1341)
i) Defendants have engaged in a scheme or artifice to defraud in
which they committed fraud on the court and made numerous misrepresentations. These misrepresentations were related to, among other things, false and misleading statements contrary to facts and law.
ii) Defendants made these false representations with specific intent to
defraud, Underwood by collecting ill gotten restitution, fines and fees.
iii) The deception resulting from these statements is material in that
the Defendants’ misrepresentations sought to influence the court’s rulings Underwood has been injured as a result of the Defendants’ scheme or artifice to defraud and misrepresentations
Defendants used the mails, or caused the use of the same, for the purpose of furthering or executing the scheme or artifice to defraud.
b) Wire Fraud (18 U.S.C. § 1343)
i) Defendants have engaged in a scheme or artifice to defraud in which they committed fraud on the court and made numerous misrepresentations. These misrepresentations were related to, among other things, false and misleading statements contrary to facts and law.
ii) Defendants made these false representations with specific intent to defraud, Underwood by collecting ill gotten restitution, fines and fees.
iii) The deception resulting from these statements is material in that
the Defendants’ misrepresentations sought to influence the court’s rulings. Underwood has been injured as a result of the Defendants’ scheme or artifice to defraud and misrepresentations.
iv) Defendants used the telephone and the internet and caused the use of the same, for the purpose of furthering or executing the scheme or artifice to defraud.
c) Bank Fraud (18 U.S.C. § 1344)
a) Defendants have engaged in a scheme or artifice to defraud in
which they committed fraud on the court and made numerous misrepresentations. These misrepresentations were related to, among other things, false and misleading statements contrary to facts and law.
b) Defendants made these false representations with specific intent to defraud, Underwood by collecting ill gotten restitution, fines and fees.
c) The deception resulting from these statements is material in that
the Defendants’ misrepresentations sought to influence the court’s rulings Underwood has been injured as a result of the Defendants’ scheme or artifice to defraud and misrepresentations
d) Defendants used the banks whose deposits are insured by the FDIC , or caused the use of the same, for the purpose of furthering or executing the scheme or artifice to defraud.
238. The foregoing predicate acts constitute a pattern of racketeering activity, in that, among other things:
a. each individual criminal act is related to each Defendants’ common
purpose of violating the due process rights guaranteed Underwood in the 5-6- 14 amendments to the constitution.
b. By violating Underwood’s due process rights each defendant succeeded in concealing their own and each other’s unethical, illegal, and impeachable conduct.
c. Defendants’ pattern of racketeering activity has a nexus with the criminal enterprise, in that, among other things, the enterprise promoted and encouraged the Defendants to commit criminal acts so as to engage in violating Underwood constitutional rights.
d. Each of the Defendants engaged in a conspiracy with at least one other person to violate 18 U.S.C. § 1962(a) or 18 U.S.C. § 1962(c) as follows:
a) Each defendant had knowledge that the essential nature of the conspiracy was to prevent Underwood from having a fair trial;
b) Each defendant agreed to participate in the conduct of the affairs of the criminal enterprise and agreed to commit at least two of the criminal predicate acts set forth above;
c) Each defendant committed at least one of the criminal predicate acts constituting a pattern of racketeering activity set forth above;
239. Underwood has been damaged and will continue to be damages by the acts of the defendants pertaining to his life, liberty and property rights without due process.
240. Underwood is entitled to damages in the amount of $1,000,000.00 from the defendant’s jointly and severally.
241. The conduct of the Defendants was fraudulent, oppressive, malicious, and in conscious disregard of the rights of Underwood. Underwood is therefore entitled to punitive damages against Defendants Vena and Wright in an amount to be determined by a federal jury.
WHEREAS, PREMISES CONSIDERED Plaintiff requests that the relief sought is granted and for all just and proper relief including amending this complaint and granting such other, further, and different relief to which the Plaintiff shows itself entitled.
DEMAND FOR JURY TRIAL
Plaintiff Rudolph W. Underwood demands a jury trial pursuant to Rule 38(b), Federal Rules of Civil Procedure.
Done, and submitted on this August 11, 2008
Rudolph W. Underwood Pro Se