Defendant coan uses the term “preposterous” without one sworn statement and in contradistinction to this egregious scenario of criminal corruption which indeed points to the preposterousness of his and miltonberger’s positions not as “LAWyers” but rather as “FRAUDsters” who should indeed be criminally prosecuted along with the other RICO conspira- tors. Indeed, coan’s law firm itself has probably crossed that threshold of legal if not RICO culpability calling for (legal) intervention by his surety/insurer so as to objectively respond to the subject egregious RICO predicate act violations and breach of fiduciary duty through lawyers provided through said coverage(s) consistent therewith. Annexed hereto and incorporated herein by reference thereto is the sworn Certification/Declaration of Plaintiff/Appel- lant regarding the substance of defendant coan’s testimony before Judge Chatigny on July 31,1997,Bankruptcy #95-51862, Dkt.#3:97-CV1165(RNC) U.S.D.C.,D.Conn., (the transcript can readily be obtained by defendant USA; in the alternative, plaintiff/appellant offers same in support of plaintiff/- appellant’s motion/application to obtain said transcript at government expense pursuant to Local Rule 27). [Parenthetically, I was constrained to set up a new web site owing to limited bandwith, related problems, and continued hacking of the former, with the following new website URL: HYPERLINK http://www.albertlouispeia.5u.com ].
I. THE 1881 CASE OF BARTON V. BARBOUR DOES NOT BAR THE PRESENT ACTION. The 1881 case of Barton v. Barbour, 104 U.S. 126 (1881), involved a plaintiff that had brought an action for in- juries sustained while a passenger in a train, which rail- road was currently in receivership. Said plaintiff brought the action against the receiver without having sought leave of court from the court that had appointed him. It is important to emphasize that there was no allegation or even a hint of impropriety, culpability, or illegality on the part of either the receiver or the subject court that had appointed him. Indeed, the fundamental and underlying ratio decidendi and policy considerations leading ineluctably to said Court’s conclusion was that to permit such an action without leave of court would potentially impair the (value of the)property in the hands of the receiver, to the detri- ment of existing creditors and prior claimants.Id.,127-129. In the case sub judice, the precise opposite is true. Moreover, there was no RICO statute extent at said time to address the endemic and pervasive corruption that has become synonomous with America today and that the RICO statute was enacted thwart consistent with the liberal construction to be accorded said remedial legislation as per the Court in Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479 (1989).[“AA” at 109,110]. Specifically, plaintiff/ appellant’s action herein was to preserve the estate which has been purposefully and consistently damaged by defendant coan consistent with a pattern of racketeering activity by an enterprise of which defendant coan along with defendant U.S. Bankruptcy court that appointed him was a part.[“AA” at 55-59]. It should further be noted a fortiori that plaintiff/appellant’s action would inure to the benefit of the estate and consequently, legitimate creditors and/or claimants thereof. It further is true that at the eviden- tiary hearing before Judge Chatigny as discussed infra, on cross examination by plaintiff/appellant and repeated in follow-up questioning by Judge Chatigny, defendant coan admitted he did not know of any legal way a real property as plaintiff/appellant’s could have been sold during the pendancy of the automatic stay (and the consequent fraud concerning surplus funds among other causes/predicate violations, etc.), and those ripe for the entry of default (/judgment), etc.. [“AA” at 8,9, 19-27, 41-51, 58,59]. (RE)Citing the 1951 case of Mosser v. Darrow, 341 U.S. 267, 71 S.Ct. 680, 95 L.Ed. 927 (1951), the Court in Conn. Gen. Life Ins. V. Universal Ins. Cos., 838 F.2d 612 (1st Cir. 1988), sets forth the words of the Supreme Court as are apposite here and provided in pertinent part, “a trusteeship is serious business and is not to be undertaken lightly or so discharged. The most effective sanction for good administration is personal liability for the consequences of forbidden acts……”, Id. at 621, and hence, defendant coan’s personal liability herein, having been sued individually herein. Indeed, said Court in Conn. Gen. Life Ins., supra, continues stating that federal courts have uniformly held that bankruptcy trustees are subject to personal liability for the willful and delib- erate violation of their fiduciary duties, and even for negligent acts by said trustees. Id.; see e.g., In re Gorski, 766 F.2d. 723,727 (2d.Cir.1985); In re Cochise College Park, Inc., 703 F.2d. 1339, 1357 (9th Cir. 1983). Moreover, the U.S. District Court has a significant in- terest in overseeing and correcting the conduct of (cor- rupt) trustees as defendant coan herein, and where jury trial is demanded as in Plaintiff/Appellant’s Verified Complaint in the instant case. See generally, In re Lehal Realty Associates, supra at 275,277; and [“AA” at 127].
II. IN RE LEHAL ASSOCIATES DOES NOT EVEN REMOTELY SUPPORT DEFENDANT COAN’S POSITION. In re Lehal Associates, 101 F.3d 272 (2nd Cir. 1996), is clearly distinguishable from the instant case inasmuch as the trustee in that case had benefitted the estate through his actions, as opposed to coan who has purposefully and illegally damaged plaintiff’s estate, benefitting RICO defendants, consistent with the RICO violations and conspiracy. [“AA” at 126]. Specifically, in In re Lehal Associates, the trustee’s efforts in the bankruptcy case resulted in payment of all legitimate creditors and administration expenses in full and a return to debtor of several million dollars. Id. [“AA” at 126].
III. DEFENDANT COAN IS ESTOPPED FROM RELITIGATING AN ISSUE DECIDED AT THE EVIDENTIARY HEARING BEFORE JUDGE CHATIGNY BY THE DOCTRINES OF RES JUDICATA/COLLATERAL ESTOPPEL. Contrary to defendant’s unsupported/bald assertion, defendant coan’s illegal acts are part of the pattern of racketeering activity set forth in the subject litigation /adversary proceedings; that is, defendant coan is merely another RICO conspirator (continuing) in the RICO violation to commit bankruptcy fraud, obstruct justice, etc., as set forth in plaintiff/appellant’s verified complaint, and to defraud plaintiff’s estate, creditors thereof, and plaintiff/appellant. [“AA” at 5-9, and 41-52]. As set forth at page 11 of defendant coan’s brief, defendant coan sought the order to preclude plaintiff from suing him. The reason is eminently clear inasmuch as coan was well aware of his blatent, brazened illegal conduct violative of RICO and contrary to bald assertion, Id., was part of the pattern of RICO activity as set forth in plaintiff’s complaint. [“AA” at 7-9, 18-27, and 59-63]. U.S.C. 18 Section 1965(5) provides as follows: “’pattern of racketeering activity’ requires at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity(.)” Moreover, contrary to defendant coan’s unsupported assertion, the fact is that at the hearing before Judge Chatigny, on my cross-examination of coan and reiterated in the follow-up questioning by Judge Chatigny, Coan admitted that he did not know of any legal way a real property as plaintiff’s could have been sold during the pendancy of the automatic stay which was one of the RICO causes which coan purposefully and illegally (in violation of RICO) damaged, defrauding/injuring plaintiff, estate and creditors there- by, while concomitantly benefitting said RICO defendants. [“AA” at 117]. Additionally, contrary to defendant coan’s unsupported assertion, the evidence is the same, defendant coan being merely a “john doe” defendant conspiring to and participa- ting in the conduct of an enterprise through a pattern of racketeering activity. [“AA” at 7-9, 18-27, 59-65,97,108]. Even assuming arguendo, though contrary to a more ration- al view given the goals of RICO, that no liability attaches to defendant u.s. for the the numerous predicate violations of RICO which should have been criminally prosecuted, as well as in tort including fraud(ulent concealment and corruption in) the process, the same may still be part of the pattern of racketeering activity, and the participation in the conduct of an enterprise (which can include a court Averbach v. Rival Mfg. Co., 809 F.2d 1016,1018(3rdCir.1987), certiorari denied, 107 S.Ct. 3187, 482 U.S. 915, 96 L.Ed.2d 675, certiorari denied, 108 S.Ct. 83, 484 U.S. 822, 98 L.Ed.2d 45) [“AA” at 55-65,97,108], viz., u.s. bankruptcy court herein and their appointee coan particularly, within the ambit of RICO. Indeed, it is the duration of this (RICO) misbehavior, including culpable cover-ups (viz., ie., fraud, as herein, connected with a case under Title 11, etc.) that delineates the boundaries of the pattern. See, e.g., Midwest Grinding Co. v. Spitz, 976 F.2d 1016 (7th Cir. 1992), especially involving an extent (indefensible) RICO cause of action ripe for the entry of (default) judgment (involving the property sold during the pendancy of the automatic stay and bankruptcy fraud thereby, plaintiff’s testimony, and other causes therein.1 CONCLUSION Clearly, the laudable goals of RICO and the policy considerations underlying same would be thwarted if the pattern of racketeering activity could continue with impunity through the corrupted scenario as set forth herein. It further would be the ultimate affront to the legal process to require plaintiff/appellant to revisit issues already decided by Judge Chatigny, U.S.D.C.J. and seek leave of court from the RICO enterprise itself, members of which should be criminally prosecuted, including defendant coan pursuant to RICO. As such, it is respectfully reiterated that
JUDGMENT IN FAVOR OF PLAINTIFF/APPELLANT IN THE SUM CERT- AIN AMOUNT SET FORTH IN PLAINTIFF’S VERIFIED COMPLAINT SHOULD BE ENTERED AS A MATTER OF LAW; IN THE ALTERNATIVE, THE PURPORTED RULING OF THE COURT BELOW SHOULD BE REVERSED.
Respectfully Submitted by, _____________________________________________ Albert L. Peia, Plaintiff/Appellant Pro Se Dated: October , 2002
CERTIFICATION OF SERVICE I, Albert L. Peia, hereby certify that copies foregoing Reply and the within Certification/Declaration of Albert L. Peia / Motion/Application in the Alternative to obtain the transcript of defendant coan’s testimony before Judge Chatigny on July 31,1997, Bankruptcy #95-51862, Dkt.#3:97-CV1165(RNC) U.S.D.C.,D.Conn., (the transcript can readily be obtained by defendant USA) at government expense pursuant to Local Rule 27 (Motion Information Statement also attached), have been served via first class U.S. mail, postage pre-paid, on this _____ day of October, 2002 upon the following:
Ann M. Nevins, Esq. U.S. Attorney’s Office, Dist. Of Conn. 915 Lafayette Blvd., Room 309 Bridgeport, CT 06604
Timothy Miltonberger Coan, lewendon, Gulliver, & miltonberger 495 Orange St. New Haven, CT 06511
_____________________________________________________ Albert L. Peia, Plaintiff/Appellant Pro Se
1 [Parenthetically, it should be noted that a (separate from the RICO causes of action/adversary proceedings) judgment was entered 9-19-96 by the U.S. District Court, District of Connecticut, #3:93CV0205(AWT) in plaintiff/appellant’s favor as set forth in plaintiff’s RICO statement and filings [“AA” at 70] and for which (along with the other Connecticut federal proceedings, viz., #92CV0166(JBA), Bky.#95-51862 and adversary proceedings filed therein) Judicial Notice was Requested in the court below has not been abandoned nor executed/acted upon by defendant coan, as is similarly the case for defendant David George Swann involving bankruptcy assets and was ripe for the entry of default/judgment in the 1997 adversary proceeding concerning same (neither abandoned by nor acted upon by defendant coan despite being named as trustee/plaintiff therein, all to the substantial damage/detriment of plaintiff, estate, and creditor’s thereof [“AA” at 70]; there is also the matter (not brought) concerning the (bankruptcy) fraud and theft of bankruptcy estate assets (listed) in a U-Haul storage unit in Danbury, Conn. in or about early in the year 2001 (Connecticut, New York, Arizona perpetrators].