USA v. FedEx Corporation et al

MOTION to Intervene and to Disqualify Judge

N.D. Cal.August 1, 2014

1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 KUANG-BAO P. OU-YOUNG 1362 Wright A venue Sunnyvale, California 94087 ( 408) 736-7793 kbouyoung@yahoo.com efendant-Intervenor Applicant ProSe UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) vs. ) ) FEDEX CORPORATION, ) FEDEX EXPRESS, INC., and ) FEDEX CORPORATE SERVICES, INC., ) ) Defendants, ) ) KUANG-BAO P. OU-YOUNG, ) ) Defendant-Intervenor Applicant. ) Case No. CR14-00380CRB DEFENDANT -INTERVENOR APPLICANT'S NOTICE OF MOTIONS AND MOTION TO INTERVENE AND MOTION TO DISQUALIFY JUDGE Date: August 20, 2014 Time: 2:00 p.m. Courtroom 6, 1 ih Floor Judge: Hon. Charles R. Breyer Defendant-Intervenor Applicant's Notice of Motions and Motion to Intervene and Motion to Disqualify Judge Case No. CR14-00380CRB- 1 of7 Case3:14-cr-00380-CRB Document23 Filed08/01/14 Page1 of 8 1 NOTICE OF MOTIONS AND MOTIONS 2 TO PLAINTIFF, DEFENDANTS, AND THEIR COUNSELS OF RECORD: 3 PLEASE TAKE NOTICE that on August 20,2014, at 2:00p.m., or as soon thereafter as 4 the matter may be heard, in Courtroom 6, 17th Floor, San Francisco Courthouse, located at 450 5 Golden Gate A venue, San Francisco, California, the Honorable Charles R. Breyer presiding, 6 applicant Kuang-Bao P. Ou-Young will, and hereby does move, for the Court's permission to 7 intervene in the present litigation. Simultaneously, applicant will, and hereby does move, to 8 disqualify district judge Charles R. Breyer as presiding judge in the present case. The motion to 9 intervene is based on Rule 12(b)(3)(B) ofthe Federal Rules of Criminal Procedure, this notice of 10 motions and motions, the memorandum of points and authorities set forth below, the pleadings 11 and records on file in this case, and upon such further evidence and argument as the Court may 12 consider at the time of the hearing on these motions. 13 STATEMENT OF FACTS 14 1. On February 2, 2010, applicant filed a civil case against the United States Postal 15 Service (the "Postal Service") (Case No. CI0-00464RS, "Docket A"). On June 10,2011, district 16 judge Richard Seeborg issued a summary judgment and dismissed the case. Doc. Nos. A53, A54. 17 2. On May 31, 2012, applicant filed a civil case against four postal employees (Case 18 No. C12-02789LHK, "Docket B"). Case C12-02789LHK resulted from the postal employees' 19 presentation of false declarations in defense ofthe Postal Service in case C10-00464RS. As 20 defense counsel in the case, U.S. attorney Melinda Haag and assistant U.S. attorney James A. 21 Scharf moved to dismiss case C12-02789LHK on August 9, 2012. Doc. No. B20. On November 22 9, 2012, district judge Lucy H. Koh dismissed case C12-02789LHK. Doc. No. B28. Judge Koh 23 denied applicant's motion to vacate the judgment dismissing case C 12-02789LHK on June 10, 24 2013. Doc. No. B48. Defendant-Intervenor Applicant's Notice of Motions and Motion to Intervene and Motion to Disqualify Judge Case No. CR14-00380CRB- 2 of7 Case3:14-cr-00380-CRB Document23 Filed08/01/14 Page2 of 8 3. In response to judge Koh's denial of the motion to vacate judgment in case C12- 2 02789LHK, applicant filed a civil action on September 25, 2013 (Case No. C13-04442EMC, .3 "Docket E"). As defense counsel in the case, U.S. attorney Haag and assistant U.S. attorney 4 Claire T. Cormier moved to dismiss case C13-04442EMC on November 5, 2013. Doc. No. E24. 5 On December 20,2013, district judge Edward M. Chen dismissed case C13-04442EMC. With 6 the same order, judge Chen subjected applicant's further complaints to "pre-filing review" by the 7 "general duty judge." Doc. No. E40. 8 4. Acting under judge Chen's order dismissing case C13-04442EMC, district judges 9 Ronald M. Whyte, Richard Seeborg, and JefferyS. White dismissed applicant's subsequent 10 complaints before allowing applicant to file (Case Nos. C 14-800 17RMW, C 14-800 18RS, and 11 C14-80028JSW). These rulings were rendered to deny applicant procedural due process 12 guaranteed by the Fifth Amendment of the Constitution. As a result, applicant submitted his 13 second petition for impeachment against named judges to members of the House Judicial 14 Committee on April25, 2014. 15 5. Substantial grounds for impeachment were left out of the April25, 2014 petition 16 for the sake of brevity. Hence applicant brought a more detailed civil complaint to the San Jose 17 division on June 10. Still acting under judge Chen's order dismissing case C13-04442EMC, the 18 receiving clerk assigned the complaint to district judge Beth Labson Freeman for pre-filing 19 review (Case No. C14-80174BLF, "Docket MF"). 20 6. On March 24, 2014, the United States instituted a criminal action against a certain 21 individual a/k/a "Raymond Chow" as well as others (Case No. CR14-00196CRB, "Docket G"). 22 On July 7, 2014, applicant moved to intervene in case CR14-00196CRB. Doc. No. G344. On 23 July 8,judge Breyer denied applicant's initial motion to intervene before the United States 24 opposed the motion. Doc. No. G345. Defendant-Intervenor Applicant's Notice of Motions and Motion to Intervene and Motion to Disqualify Judge Case No. CR14-00380CRB- 3 of7 Case3:14-cr-00380-CRB Document23 Filed08/01/14 Page3 of 8 7. In response to applicant's initial motion to intervene in case CR14-00196CRB, 2 judge Freeman dismissed case C14-80174BLF before allowing applicant to file on July 8, 2014. 3 Doc. No. MF2. 4 8. On July 17, 2014, U.S. attorney Haag filed an indictment with the district court, 5 thereby instituting the current criminal action against defendants. Doc. No. 1. 6 9. On July 22, 2014, applicant moved to intervene again in case CR14-00196CRB 7 and to disqualify judge Breyer from the case. Doc. No. G367. On July 24, judge Breyer denied 8 applicant's second motion to intervene in case CR14-00196CRB. Doc. No. G368. The denial led 9 to both the present motion to intervene and the present motion to disqualify judge. 10 MEMORANDUM OF POINTS AND AUTHORITIES 11 A. Dismissal of Case C14-80174BLF Has Denied Applicant Procedural Due Process 12 On July 8, 2014,judge Freeman dismissed the complaint in case C14-80174BLF before 13 allowing applicant to file. "The fundamental requisite of due process of law is the opportunity to 14 be heard." Grannis v. Ordean, 234 U.S. 385,394 (1914). In Snyder v. Massachusetts, 291 U.S. 15 97, 1 05 ( 1934 ), the Supreme Court has held that a due process is violated if a practice or rule 16 "offends some principle of justice so rooted in the traditions and conscience of our people as to 17 be ranked as fundamental." Accordingly, judge Freeman's dismissal order has denied applicant 18 procedural due process in violation ofthe Due Process Clause of the Fifth Amendment to the 19 Constitution. 20 B. Dismissal of Case Cl4-80174BLF Acknowledges All Claims in the Dismissed Complaint 21 On July 8, 2014, judge Freeman dismissed the complaint in case C14-80174BLF before 22 allowing applicant to file.~ 7. Because the dismissal was rendered without defendants' answer, 23 judge Freeman's dismissal ofthe complaint in case C14-80174BLF acknowledges all claims in 24 the complaint. Defendant-Intervenor Applicant's Notice of Motions and Motion to Intervene and Motion to Disqualify Judge Case No. CR14-00380CRB- 4 of7 Case3:14-cr-00380-CRB Document23 Filed08/01/14 Page4 of 8 1 C. U.S. Attorney Haag Lacks Jurisdiction in Filing the Current Indictment 2 Claim 21 in the complaint in case C14-80174BLF shows that the motion to dismiss case 3 C12-02789LHK interferes with Scheuer v. Rhodes, 416 U.S. 232 (1974). Claim 105 in the same 4 complaint shows that the motion to dismiss case C 13-04442EMC interferes with Scheuer as well 5 as Mireles v. Waco, 502 U.S. 9 (1991). Hence U.S. attorney Haag has fabricated both the motion 6 to dismiss case C12-02789LHK and the motion to dismiss case C13-04442EMC in violation of 7 18 U.S.C. §§ 1509, 1512(b), and 1512(c). 8 Rule 11-6(a) of Civil Local Rules provides: 9 General. In the event that a Judge has cause to believe that an attorney has 10 engaged in unprofessional conduct, in addition to any action authorized by 11 applicable law, the Judge may do any or all of the following: 12 13 (1) Refer the matter to the Court's Standing Committee on Professional 14 Conduct; or 15 (2) Refer the matter to the Chief District Judge with the recommendation that 16 an order to show cause be issued under Civil L.R. 11-7 .... 17 18 Until U.S. attorney Haag's violations of 18 U.S.C. 1509, 1512(b), and 1512(c) in both case C12- 19 02789LHK and case C13-04442EMC are resolved under Civil L.R. 11-6(a), U.S. attorney Haag 20 lacks standing in practicing before the Court. Accordingly, the current indictment filed by U.S. 21 attorney Haag on July 17 represents a defect.~ 8. More importantly, U.S. attorney Haag lacks 22 jurisdiction in filing the current indictment. The present case should be dismissed for lack of 23 jurisdiction under Rule 12(b)(3)(B) ofthe Federal Rules of Criminal Procedure. 24 D. Judge Breyer Should Recuse Himself from the Present Litigation 25 On July 8, 2014,judge Breyer denied applicant's initial motion to intervene in case 26 CR14-00196CRB before the United States opposed the motion.~ 6. The denial interferes with 27 Rule 47-2(d) of Criminal Local Rules. Judge Breyer has violated 18 U.S.C. §§ 1509, 1512(b), 28 and 1512(c) as a result. Due to the deliberate violations, applicant moved to intervene in case 29 CR14-00196CRG again and to disqualify judge Breyer on July 22. ~ 9. Defendant-Intervenor Applicant's Notice of Motions and Motion to Intervene and Motion to Disqualify Judge Case No. CR14-00380CRB- 5 of7 Case3:14-cr-00380-CRB Document23 Filed08/01/14 Page5 of 8 1 28 U.S.C. § 144 provides: 2 Whenever a party to any proceeding in a district court makes and files a timely 3 and sufficient affidavit that the judge before whom the matter is pending has a 4 personal bias or prejudice either against him or in favor of any adverse party, 5 such judge shall proceed no further therein, but another judge shall be assigned 6 to hear such proceeding. 7 8 Pursuant to 28 U.S.C. § 144, another judge, other than judge Breyer, should adjudicate on either 9 applicant's second motion to intervene in case CR 14-00 196CRB or the simultaneous motion to 10 disqualify judge Breyer. Yet judge Breyer denied applicant's second motion to intervene in case 11 C14-00196CRB on July 24. ,-r 9. Hence the denial interferes with 28 U.S.C. § 144. Again, judge 12 Breyer has violated 18 U.S.C. §§ 1509, 1512(b), and 1512(c). 13 28 U.S.C. § 455(a) provides: 14 Any justice, judge, or magistrate judge of the United States shall disqualify 15 himself in any proceeding in which his impartiality might reasonably be 16 questioned. 17 18 Judge Breyer has committed criminal offenses twice in case C 14-00 196CRB to render biased 19 rulings in favor of plaintiff, the United States. Because the United States represents the plaintiff 20 in the present case as well, it is reasonable to question judge Breyer's impartiality in the present 21 proceedings. Thus, judge Breyer should be disqualified from the present litigation pursuant to 28 22 U.S.C. § 455(a). 23 Defendant-Intervenor Applicant's Notice of Motions and Motion to Intervene and Motion to Disqualify Judge Case No. CR14-00380CRB- 6 of7 Case3:14-cr-00380-CRB Document23 Filed08/01/14 Page6 of 8 1 2 3 4 5 6 7 8 9 10 11 12 13 CONCLUSION Based on the above arguments, the Court should allow applicant to intervene in the present litigation. At the same time, judge Breyer should be disqualified from the present case pursuant to 28 U.S.C. § 455(a). Respectfully submitted this 1st day of August 2014. KUANG-BAO P. OU-YOUNG 1362 Wright Avenue Sunnyvale, California 94087 ( 408) 736-7793 kbouyoung@yahoo.com Defendant-Intervenor Applicant Defendant-Intervenor Applicant's Notice of Motions and Motion to Intervene and Motion to Disqualify Judge Case No. CR14-00380CRB- 7 of7 Case3:14-cr-00380-CRB Document23 Filed08/01/14 Page7 of 8 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION UNITED STATES OF AMERICA, Plaintiff, vs. FED EX CORPORATION, FEDEX EXPRESS, INC., and FED EX CORPORATE SERVICES, INC., Defendants. ) ) ) ) ) ) ) ) ) ) ) Case No. CR14-00380CRB PROOF OF SERVICE This is to certify that a true and correct copy of the following: Defendant-Intervenor Applicant's Notice of Motions and Motion to Intervene and Motion to Disqualify Judge was delivered in person to the following: Kirstin M. Ault Assistant United States Attorney Kyle F. Waldinger Assistant United States Attorney U.S. Attorney's Office 450 Golden Gate Avenue San Francisco, CA 94102 The foregoing was mailed by the undersigned postage prepaid by Priority Mail to the following: Cristina C. Arguedas Raphael M. Goldman Ted W. Cassman Arguedas, Cassman & Headley, LLP 803 Hearst A venue Berkeley, CA 94710 Date: August 1, 2014 Allen Ruby Jack P. DiCanio William J. Casey Skadden, Arps, Slate, Meagher & Flom, LLP 525 University Avenue, Suite 1100 Palo Alto, CA 94301 Kuong Lin Ou-Young 260 N. Pastoria Avenue Sunnyvale, CA 94086 Case3:14-cr-00380-CRB Document23 Filed08/01/14 Page8 of 8