GARCIA (SERGIO C.) ON ADMISSION

Amicus Curiae Brief of Nicholas Kierniesky

Cal.August 16, 2012

SUPREME COURT COPY = suegevecourr S202512 AUG 16 Frank A. McG 2012 uire Clerk IN THE Depull SUPREME COURT OF CALIFORNIA In Re: Sergio Garcia, Petitioner AMICUS CURIAE BRIEF IN OPPOSITION TO ADMISSION OF PETITIONER TO THE BAR Submitted by: NICHOLASKIERNIESKY,Pro Se 2 West Harrison Avenue Millville, New Jersey 08332 (856) 825-5045 TABLE OF CONTENTS Page Table of Authorities 1 Legal Argument Preliminary Statement 2 PERSONS WHO ARE BREAKING THE LAW SHOULD NOT BE ENTRUSTED WITH UPHOLDING THE LAW. 2 Conclusion 9 TABLE OF AUTHORITIES Cases In re Winton Shirt Corp., 104 F.2d 777, 779 (3Cir. 1939) 5 Pacheco v. State Bar, 43 Cal. 3d 1041, 1046 (1987) 8 Segretti v. State Bar of California, 15 Cal. 3d 878 (1976) 7 Sheridan v. Sheridan, 247 N.J. Super. 552 (Ch. Div. 1990) 2 State ofNew Jersey v. V.D., 401 N.J. Super. 527 (App. Div. 2008) 2 State v. Sugar, 84 N.J. 1, 12 (1980) 2,9 United States v. Batjargal, 302 Fed. Appx. 188, 2008 U.S. App. LEXIS 24764 (4" Cir. 2008) 7 United States v. Elizabeth Ramirez, 2007 U.S.App. LEXIS 23398 (5" Cir. 2007) 5 United States v. Hinojos-Mendez, 2008 U.S. App. LEXIS 6178 (5" Cir. 2008) 6 United States v. Sacco, 428 F.2d 264 (9" Cir. 1970) cert den 400 U.S. 903, 27 L.Ed. 2d 140, 91 S.Ct. 141 (1970) reh den 401 U.S. 926, 27 L.Ed.2d 831, 91 S.Ct. 864 (1971) 8 Statutes 8 U.S.C. § 1302 8 8 U.S.C. § 1324 45 8 U.S.C. § 1325 3 Cal. Civ. Code § 1710(3) 8 Other Authorities Ethics Opinion 247 (95 N.J.L.J. 1271) 5 RPC 1.6(6)(2) 4 RPC 8.4 ; 5 PRELIMINARY STATEMENT The undersigned came from a family whose memberslegally immigrated to the United States of America. He wasthe first person in his family to attend college and, later, law school. He has served in the United States Armed Forcesandhas a clear understanding of matters of personal responsibility and the responsibility to uphold the Rule of Law. Although the undersigned lives in New Jersey, those responsibilities can and should transcend state borders. LEGAL ARGUMENT PERSONS WHO ARE BREAKING THE LAW SHOULD NOT BE ENTRUSTED WITH UPHOLDING THE LAW. Thirty-two years ago, the New Jersey Supreme Court wrote: If the rule of law is this nation's secular faith, then the membersofthe Bar are its ministers. (State v. Sugar, 84N.J. 1, 12 (1980)) In State ofNew Jersey v. V.D., 401 N.J. Super. 527 (App. Div. 2008) the intermediate appeals court noted that "when a court becomes awarethat the parties appearing before it are, or may be, involvedin illegal conduct, it has an ethical obligation to act." Id. at 537 (citing Sheridan v. Sheridan, 247 N.J. Super. 552 (Ch. Div. 1990)'). Whatillegal conduct? That is discussed below. ! The Sheridan court held: 8 U.S.C. § 1325(a) provides that "[a]ny alien who...enters...the United States at any time or place other than as designated by immigration officers...shall, for the first commission of any such offense, be fined undertitle 18...or imprisoned not more than 6 months, or both, and, for a subsequent commission...be fined under title 18...or imprisoned not more than 2 years, or both." Justice is the right of all men & the private property of none. The judge holds this commonright in trust, to administer it with an even hand in accordance with law. . . Chief Justice Weintraub, In re Mattera, 34 N.J. 259, 275-276 (1961). Jt is every citizen's duty to uphold the law andaspart of that duty to report any knowledgeshe or he may have of a crime committed or to be committed. n4 In order to preserve public confidence in the integrity of the judiciary, a judge mustbe the ultimate exemplar of that good citizenship. *** a ieelealaeieiataiatate Footnotes - ---------- n4 Undercertain, defined circumstances,failure to report may constitute a criminal offense. See N.J.S.A. 2C:29-1 & -3 [predecessor crime of obstructing justice -- i.e., to do any act which prevented, impeded or hindered due course of public justice -- was a common- law crime punishable as a misdemeanorN.J.S.A. 2A:85-1 since repealed. State v. Cassatly, 93 N.J. Super. 111 (App.Div.1966).] Notwithstanding the absence of a Supreme Court Rule or written administrative directive, it has been my experience that judges do report illegal or improperactivities, or credible allegations thereof. Judges do so becauseit is the right thing to do and becauseitis repugnantto their oath that judges sit mute in the face of acknowledged, demonstrated or potential wrongdoing. 2 2 2K Accordingly, it is the holding of the court that where evidence establishes an intentional, underreporting of income-- in this case large sumsfrom illegal enterprise -- it is a judge's duty to report such wrongdoing to the appropriate authorities. (Id. at 562-566) (italics added) 8 U.S.C. § 1324(a)(1)(A)(iii) provides that "[a]ny person who- - ...knowingor in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shieldsfrom detection, suchalien in any place...[or] [8 U.S.C. § 1324(a)(1)(A)(iv)] encouragesor inducesan alien to come to, enter, or reside in the United States, knowing or in reckless disregard ofthe fact that such comingto, entry, or residenceis or will be in violation of law... [or] [8 U.S.C. § 1324(a)(1)(A)(v)CID] aids or abets the commission of any of the preceding acts...shall be punished as provided in subparagraph (B)[fined undertitle 18...imprisoned not more than 5 years, or both]." (emphasis added) Federal law makesit illegal to "shield" an illegal alien from detection or to aid or abet such a shielding. RPC 1.6(b)(2) provides that "[a] lawyer shall reveal such information to the proper authorities, as soon as, and to the extent the lawyer reasonably believes necessary, to prevent the client or another person ... from committing a criminal[or] illegal...act that the lawyer reasonably believesis likely to result in substantial injury to the property of another...." (italics added) Ethics Opinion 247 (December 7, 1972) (95 N.J.L.J. 1271) (http://lawlibrary.rutgers.edu/collections/ethics/acpe/acp247_1.html) considered whether an attorney must report to the proper authorities the reasonable suspicion that his client is an illegal alien. The decision held that an alien whoisin this country illegally is "at least" committing a fraud upon the United States. The decision held that if an inquiry were to be madeofthe attorney, "he is not prevented from disclosing such facts by the attorney-client privilege." RPC 8.4 providesthatit is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation." It is clear that if a lawyer engages in conductthat involves fraud or deceit, that lawyer is engagedin professional misconduct. "Involves" has been held to mean “embrace, include or concern directly." In re Winton Shirt Corp., 104 F.2d 777, 779 (3 Cir. 1939). In United States v. Elizabeth Ramirez, 2007 U.S.App. LEXIS 23398 (5" Cir. 2007), the defendant was prosecuted under 8 U.S.C. §1324(a)(1)(A)(iii). The defendant did not employthe illegal aliens in a business. The defendant apparently allowed someillegal aliens to sleep overnight at her home. The defendant had closed her bedroom door, to deny officers access, claiming there were feminine items inside. The officers became suspicious and then found a mantrying to leave through a rear window. The defendantasserted that she merely "shared living quarters" with the men and denied knowledge of their illegal status. Nonetheless, her conviction was upheld. She etmadeit "significantly 'easier or less difficult" for the illegal aliens to be present in the United States. Ms. Ramirez failed to disclose the presenceofillegalaliens. In United States v. Hinojos-Mendez, 2008 U.S. App. LEXIS 6178 (5" Cir. 2008) the defendant had been convicted of conspiring to conceal, harbor andshield illegal aliens. The appeals court affirmed the conviction because: Taken in the light most favorable to the verdict, the evidence showed that Hinojos acted in concert with others involved in the offense by acting as a lookout at the apartment complex and by providing food to the illegal aliens, conduct which, by its nature, "tended to substantially facilitate the alien[s] remaining in the United States illegally." United States v. De Jesus- Batres, 410 F.3d 154, 160 (5th Cir. 2005). See also United States v. Shum, 496 F.3d 390, 392 (Sth Cir. 2007). Because the evidence was sufficient to support the jury's verdict, we affirm the judgment of the district court. (emphasis added) In United States v. Batiargal, 302 Fed. Appx. 188, 2008 U.S. App. LEXIS 24764 (4"Cir. 2008) a defendant had been convicted of concealing, harboring or shielding anillegal alien. The appeals court affirmed the conviction: _..we find sufficient evidence showsthat he knew [the alien] was no longerin the United Stateslegally because she was no longer attending school as was required under herstudent visa. The evidence further shows[the defendant] encouragedherto stay in the United States despite herillegal status and that he harbored her by providing her with a place tolive, an automobile, a cell phone, auto insurance andgym membership.(Id. at 191) (emphasis added) If providing food, a cell phone or a "gym membership"to an illegal alien can constitute a violation of the foregoing federal statute, then — respectfully — allowing membership in a State Bar would also encouragethe alien to remain in the UnitedStates. The Court is also respectfully invited to Segretti v. State Bar of California, 15 Cal.3d 878 (1976). In that case the petitioner, an attorney, had been involvedin a series of political pranks and mischief, intended to cause confusion amongstrival candidates. Even though someofthe acts may have been intended to be humorousor harmless, they nonetheless violatedfederal law and this Court found ...he repeatedly committed acts ofdeceit designed to subvert the free electoral process. *** A memberof the bar should not under any circumstances attempt to deceive another. (See Cutler v. State Bar (1969) 71 Cal.2d 241, 252-253 [78 Cal.Rptr. 172, 455 P.2d 108]; McKinneyv. State Bar (1964) 62 Cal.2d 194, 196 [41 Cal.Rptr. 665, 397 P. 2d 425].) "An attorney's practice ofdeceit involves moral turpitude." (Cutler v. State Bar, supra; in accord, Lewis v. State Bar (1973) 9 Cal.3d 704, 713 [108 Cal.Rptr. 821, 511 P.2d 1173].) (Id. at 887-888) (emphasis added) "Good moral character" has also been defined to mean "qualities of honesty, fairness, candor, trustworthiness, observance of fiduciary responsibility, /observance] ofthe laws ofthe state and the nation and respect forthe rights of others and for the judicial process." Pacheco v. State Bar, 43 Cal.3d 1041, 1046 (1987) (emphasis added). It is the duty of every alien, whois 14 years of age orolder, to register with the U.S. government. 8 U.S.C. § 1302(a). Alien registration statutes are essentially non-criminal regulatory provisions, and do notviolate an alien's right against self-incrimination. United States v. Sacco, 428 F.2d 264 (9"Cir. 1970) cert den 400 U.S. 903, 27 L.Ed. 2d 140, 91 S.Ct. 141 (1970) reh den 401 U.S. 926, 27 L.Ed.2d 831, 91 S.Ct. 864 (1971). "Deceit" has been defined to mean "[t]he suppression of a fact, by one whois boundto discloseit....". Cal. Civ. Code § 1710(3). Foreign citizens whoare in this country and have notregistered themselves are engaged in deceit. An alien whois in this country illegally is "at least" committing a fraud upon the United States. CONCLUSION For the foregoing reasons, a person in the United States illegally should not be permitted to practice law as a memberofan organized bar. The practice of law requires the practitioner to uphold the law. A person whoisin this country illegally is deceitfully breaking federal law, not unlike how Mr. Segretti violated federal law, and should not be entrusted with upholding the law. Mr. Segretti endedhis violation of federal law and sought to make amends. By contrast, Mr. Garcia's violation of federal law continues as long as he is in this country without proper authorization. If the rule of law isthis nation’s secularfaith, then the membersofthe Bar aye its7‘seta Vv. Sugar, 84 N.J. 1, 12 (1980) espectfully ;wa EhKERNIESKY,Pro Se Date: 7-3/-/2 06/2680275.v1 $202512 IN THE SUPREME COURT OF CALIFORNIA In Re: Sergio Garcia, Petitioner CERTIFICATION OF WORD COUNT OF AMICUS CURIAEBRIEF IN OPPOSITION TO ADMISSION OF PETITIONER TO THE BAR NICHOLASKIER} KY,of full age, certifies as follows: The word count of the amicus curiae pfief, to include tables of contents and authoritieé is: 1, 772 wefdg. This word count was accomplished byt word perfect co “— TICHOLAS KIBRNIESKY Date: e-Y-(2Q