THE CIRCUIT COURT FOR THE TWENTITH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY FLORIDA
STATE OF FLORIDA , CASE NO: 16-0002275CF
I. PERJURY THROUGH FALSE OFFICIAL STATEMENTS – F.S. 837.06
On June 8, 2016, site investigator, Robert Nichols, committed perjury in sworn affidavit for an arrest warrant to manipulate Judge Hayward to sign the arrest warrant used to arrest the Defendant. Nichols, with the assistance of former FBI agent, Robert Foley (now employed by the State attorney’s Office as a prosecutor, fabricated reports to target the Defendant with alleged crimes against the Lee County Clerk of court, several judges, and attorneys, in a conspiracy that has deprived the Defendant of his constitutional rights and has violated state and federal laws.
Nichols failed to do even basic research to validate his claims, instead making reckless accusations to paint an inaccurate picture of the Defendant to give the impression of criminal activity according to recently created Florida statute, and for the benefit of public officials employed by the court, who alleged to be victims. Nichols’s false accusations include the Defendant being the “owner” of Palm Beach Capital Trust, International Court of Commerce and other companies or organization that Nichols has no evidence to support such claim. Nichols maintains that these organizations have committed crimes based on his own speculation, embellishments, and personal hypothesis not supported by actual laws. No articles of incorporation, organizational documents or IRS tax identification information has been provided to support his allegations. Nichols is not an attorney, yet he makes numerous accusatory statements, including accusing the Defendant of mail fraud, a federal crime the Defendant has not been charged with. These accusations are followed by statements that he is not aware of where the mail in question was sent from, and confirmation said mail was delivered. Robert Nichols is not qualified to make such accusations, nor does he have the evidence to support his false claims.
Nichols accuses the Defendant of certain UCC filings with the Secretary of State, which whether said filings were legitimate or not, were not filed by the Defendant. Nichols blames the Defendant for the actions of several individuals in order to justify the attacks against the Defendant by the State Attorney and those who operate and work within the Lee County Court system. Additional lies by Nichols include a statement that the Defendant was a real estate agent in April of 2009, and advertised his services on the Internet. The Defendant was not a real estate agent at that time, never pretended to be, and these details could be easily verified with the resources available to Nichols. No advertisements have been provided in evidence to support his lies, because it doesn’t exist. Nichols also claims that the Defendant collected $57,000 in rental payments between 2009-2016, which is simply untrue and used to harm his reputation and sway the court. Nichols even states that a crime was not committed pertaining to the property in question, yet he makes many false statements to insinuate wrong doing in order to smear the Defendant’s name through character assassinations.
Robert Nichols, in his conspiracy with the alleged victims and his colleagues in the state attorney’s office, accuses the Defendant of creating “realistic looking indictments and arrest warrants”, a blatant lie catering to the agenda of the court clerk, several judges, and attorneys, who are clearly abusing the power of their offices and using the system they control. Nichols says the Defendant utilized seminars, websites, and online videos to sell his ideology and generate income.” The Defendant has never held a seminar posted videos or created websites to sell this so-called “ideology”. Nichols references numerous websites hosted by the Defendant’s IT consulting company, none of which include the alleged seminars or videos, or provides any evidence at all that the Defendant created, owns, or is responsible for the content.
II. PERURY IN AN OFFICIAL PROCEEDING – F.S. 837.02
On May 26, 2017, state investigator, Robert Nichols, committed perjury in an official proceeding by making intentionally harmful and fabricated statements against the Defendant in his sworn testimony during a deposition.
Nichols makes may of the same false accusations from his sworn affidavit from June 8, 2016, and more. Nichols even makes speculations without facts by speaking on the thoughts of codefendant, Joel Soucy, and falsely quotes the Defendant multiple times. Once again Nichols has lied, quoting the Defendant to harm his character. Nichols claims the Defendant owns certain companies he has no involvement in and has never even hosted those websites. During his sworn deposition Robert Nichols says he is employed as an “Investigator” for the State Attorney’s Office, and then later he refers to himself as “a cop”. Nichols is clearly confused about his own profession, just as he is about his embellished statements and speculations unsupported by facts. With the help of his colleague, Robert Foley, Nichols used Foley’s FBI influence and intimidation to obtain statements against the Defendant to conveniently attempt to fit the state’s agenda. Nichols is quoted saying, “I developed my probable cause”, verifying his intent to manufacture a case against the Defendant. Nichols and Foley took statements from several individuals with a criminal history, including Patrick Long, Manuel Gonzales, Stephanie Pruschki, and Joshua Hauserman. There are too many lies and fabricated details to address in a single motion, and the Defendant will address the statements and actions of Robert Nichols and Robert Foley during sworn court testimony.
III. UNLAWFUL ARREST, SEARCH AND SEIZURE
The Fourth Amendment to the US Constitution prohibits police from making warrantless and nonconsensual entry into a suspect’s home for purpose of making a felony arrest unless exigent circumstances are present. U.S.C.A. Const. Amendment 4. Payton v New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L.Ed. 2d 639 (1980). See also Gnan v State, 662 So. 2d. 406 (1995). In videos provided as evidence by the state, Robert Nichols and Robert Foley are confirmed to have participated in the unlawful arrest of the Defendant and the unlawful search and seizure at the Defendant’s residence in Goshen, New York on June 28, 2016. on video Nichols verifies that a search warrant had not yet been signed by a judge, but Nichols, Foley and Detective Ryan Rich of the Village of Goshen Police Department acknowledge having possession of the Defendant’s property, which was seized without a warrant. The videos also confirm the illegal search while it was in progress at the time the videos were recorded, and the deposition of Robert Nichols confirms his participation and oversight of the unlawful search and seizure. No affidavit for the search warrant has been provided by the state, which based on the deposition of Nichols, was created by “the New York authorities.”
The state’s video evidence also shows Nichols reading the Defendant a Miranda statement in the presence of Robert Foley. Despite claiming to be “a cop”, Nichols is not law enforcement and has no jurisdiction to participate in the unlawful arrest of the Defendant as documented by the state’s evidence.
IV. VIOLATION OF 836.05 – THREATS; EXTORTION
On July 19, 2017, Assistant State Attorney, James D. Miller, in written communication to the Defendant’s court-appointed counsel, Sebouh Gourjian, made malicious threats to the Defendant to charge him of a crime, with the intent to force the Defendant to act against his will by accepting a guilty plea for allegations the Defendant has maintained he is not guilty of, in order to avoid additional charges threatened against him.
V. DENIAL OF DUE PROCESS AND ACCESS TO COURT UNDER THE FIRST AND FOURTEENTH AMENDMENT TO THE US CONSTITUTION AND ATRICLE 1, SECTION 9 AND ARTICLE 1, SECTION 21 OF THE FLORIDA CONSTITUTION
In the extortion letter presented to the Defendant by prosecutor James D. Miller on July 19, 2017, Mr. Miller attempts to deny the Defendant of due process and his right to court access by forcing him to accept a guilty plea
that would forbid him from participating in any court action against him without a private or court-appointed attorney.
Right of access to the courts is basic to our system of government and is one of the fundamental rights protected by the Constitution. U.S.C.A. Const. Art. 4, Section 2, Clause 1; Amendment 5 and 14. “A single act of depriving a citizen of his right to correspond may simultaneously constitute a violation of substantive constitutional rights and of the right to procedural due process. Because the right to correspond is protected by the First and Fourteenth Amendment, the result of depriving a citizen of this right will violate those substantive guarantees unless the action is justified by sufficiently compelling countervailing state interests. Ryland v Shapiro, 708 F.2d 967 (1983). Fourteenth Amendment, the manner in depriving a citizen of this right could violate the procedural norms embodied in the Due Process Clause. See, Procunier v Martinez, 416 U.S. 396, 945 Ct. 1800, 40 L.Ed. 2d 224 (1973). The due process clause has also been construed to allow prisoners meaningful access to the courts. see Bounds v Smith, 430 U.S. 817, 975 S. Ct. 1491, 52 L.Ed. 2d 72 (1977); Boddie v Connecticut, 401 U.S. 371, 91 S. Ct. 780, 28 L.Ed. 2d 113 (1971).
The Ryland case, with regard to claims of immunity and decisions since Imbler v Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L.Ed. 2d 128 (1976), held that “a prosecutor is not entitled to absolute immunity when he engages in activities outside his quasi-judicial role.” In this case, the state attorney has acted as the investigator, arresting office, and prosecutor, and has participated in action outside of Florida jurisdiction. A prosecuting attorney, who acts outside the scope of his jurisdiction and without authorization of law, cannot shelter himself from liability by the plea that he is acting under color of office”. Lewis v. Brautigam, 227 F.2d 124 (5th Cir. 1955). When a state prosecutor enters into a conspiracy with others acting under color of state law to deprive someone of their rights, the state prosecutor may be liable not only because he has exceeded his lawful authority, but also because he is vicariously liable under principles of agency, partnership and joint venture. Madison v Purdy, 410 F.2d 99 (5th Cir. 1969).
VI. CONSPIRACY, DEPRIVATION OF RIGHTS AND ADDITIONAL DENIAL OF DUE PROCESS AND A FAIR TRIAL
The Defendant feels strongly that the actions and ruling of the trial judge, the actions of the state prosecutor, and his court-appointed counsel constitute a conspiracy to obstruct justice by denying the Defendant effective assistance of counsel and a fair trial. On January 23, 2017, Judge Margaret Steinbeck appointed Attorney Sebouh Gourjian as the Defendant’s counsel. The Defendant has addressed concerns with the court, including Mr. Gourjian seeking derogatory information rather than exculpatory information to the benefit of the state’s prosecution against the Defendant. Evidence is clearly displayed during the deposition of Robert Nichols on May 26, 2017, as well as numerous derogatory remarks made against the Defendant and his family as documented on court record during Nelson Hearings on August 14th and 15th of 2017. The Defendant also argued the ineffectiveness of his counsel for his counsel’s refusal to file pretrial motions on his behalf or to depose the alleged victims. The Court denied the Defendant’s request for replacement counsel at the Nelson Hearing, despite the Defendant’s additional argument of a conflict of interest under Florida Statute 27.5303, due to attorney Gourjian’s association with codefendant’s counsel, Steven Smith.
Based on Attorney Gourjian’s unauthorized disclosure of information provided by the Defendant it is also believed Mr. Gourjian has violated attorney-client privilege. When speaking with Attorney Gourjian on October 28, 2017, the Defendant was advised that his alleged victims would not likely testify at trial because they are judges and the clerk of court. The Defendant is being denied the right to face his accusers both in depositions and in trial testimony, and these accusers are colleagues, and may even have a personal friendship with the trial judge. This lack of due process and a fair trial is abundantly clear.
I In Slavin v Curry, 574, F.2d 1256 (5th Cir. 1978), a criminal defendant filed suit against the trial judge, state prosecutor, retained and appointed counsel, court reporters, court-appointed investigator, police officers and witnesses alleging a single conspiracy to manufacture and prosecute him for false charges and other various acts aimed at denying him his due process rights. In writing for the court, Judge Charles Clark discussed vicarious liability under section 1983: “The contention that a conspiracy existed which deprived the petitioner of rights guaranteed by federal law makes each member of the conspiracy potentially liable for the effects of that deprivation. Liability arises from membership in the conspiracy and from traditional notions that a conspirator is vicariously liable for the acts of his co-conspirators.”
VII. VIOLATION OF FOURTEENTH AMENDMENT AND FEDERAL ARBITRATION ACT
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. This State has created laws to violate the constitution and federal law. Article VI states that the US Constitution “shall be the supreme law of the land”. In California Supreme Court, 31 al. 3d 584, 183 Cal. Rptr. 360, 645 P.2d 1192, Supreme Court Justice Berger held that provisions of state law requiring judicial consideration of claims brought under that law directly conflicts with the Federal Arbitration Act and violates the supremacy clause.
Based on the limited discovery provided to the Defendant, the documents he is accused of filing are supported by the Federal Arbitration Act, citing Southland Corp. v Keating, 465, U.S. 1 (1984), and other case law, in addition to the US Constitution and federal laws. Federal Arbitration Act rests on the authority of Congress to enact substantive rules under the commerce clause 9 U.S.C.A. Section 1, et. seq., U.S.C.A. Const. Art. 1 Section 8, Cl.3. In enacting Section 2 of the Federal Act, Congress declared a national policy favoring arbitration and withdrew the power of states to require a judicial forum for the resolution of claims that the contracting parties agreed to resolve by arbitration. That Act, resting on Congress’s authority under Commerce Clause, creates a body of federal substantive law that is applicable in both state and federal courts. Moses H. Cone Memorial Hospital v Mercury Construction Corp. 460 U.S. 1, 103 S. Ct. 927, 74 L.Ed 2d 765 (1983).
If Congress, in enacting the Arbitration Act, had intended to create procedural rules applicable only in federal courts it would not have limited the Act to contracts “involving commerce.” Section 2’s “involving commerce” requirement is not to be viewed as an inexplicable limitation on the power of the federal courts. P.860. Southland Corp. v Keating, 465 U.S. 1 (1984) 104 S. Ct. 852, 79 L.Ed 2d 1, held that: “This Court has jurisdiction under 28 U.S.C. Section 1257(2) to decide whether the United States Arbitration Act pre-empts Section 31512 fo the California Statute. Cox Broadcasting v Cohn, 420 U.S. 469, 95 S. Ct. 1029, 43 L.Ed 2d 328 (1975).
The Federal Arbitration Act rests on the authority of Congress to enact substantive rules under the Commerce Clause. in Prima Paint Corp. v Flood & Conklin Manufacturing Corp. 388 U.S. 395, 87 S. Ct. 1801 L.Ed 2d 1270 (1967), the Court examined the legislative history of the Act and concluded that the statute “is based upon…the incontestable federal foundations of “control over interstate commerce and over admiralty”. Id at 405, 87, S.Ct., at 1806 (quoting H.R. Rep.No. 96, 68th Cong., 1st Sess. 1 (1924). The contract in Prima Paint as here, contained an arbitration clause. One party in that case alleged the other had committed fraud in the inducement of a contract “is for the arbitrators and not for the courts”, id., at 400, 87 S. Ct. at 1804. The Court relied for this holding on Congress’ broad powers to fashion substantive rules under the Commerce Clause.
In Southland Corp. v Keating, Justice O’Connor and Justice Stevens have held that an arbitration clause is enforceable in an action in a federal court is equally enforceable if the action is brought in a state court. In this instant case the alleged victims, consisting of the court clerk, state judges and attorneys, have conspired with the state attorney’s office in using a recently created criminal state stautes to abuse their power in a vicious personal attack against the Defendant, who is a nonparty to arbitration involving the alleged victims, and who was a non-party to any of the documents he has been charged wtih filing. The vendetta is manipulated and controlled by the court members and the state attorney, who is acting as a prosecutor, investigator and arresting office.
VIII. EXCESSIVE BAIL, EXCESSIVE PUNISHMENT AND PRETRIAL RELEASE
Due to the alleged victims in this case being colleagues and likely personal friends of the trial judge, the Court has imposed excessive bail against the Defendant in violation of the Eighth Amendment to the US Constitution and Article 1, Section 17 of the Florida Constitution. The $1.5 million bond has denied the Defendant an opportunity for pretrial release pursuant to Article 1, Section 14 of the Florida Constitution. The Defendant’s bond greatly exceeds that of those charged with violent crimes such as rape, kidnapping and homicide. A man recently charged with 1600 counts of child pornography has a bond of $100,000, which is a fraction of what has been imposed on the Defendant. on June 16, 2017, the trial judge denied the Defendant’s motion for a bond reduction, despite evidence that the bond for identical charges in another Florida county is 1/10 of the bail given by this subjective trial court judge. The personal bias towad the alleged victims and the state in their personal attacks against the Defendant are apparent. Prosecutor, James D. Miller, has emphasized numerous times on court record the alleged victims being judges, the clerk of court and fellow attorneys, in order to gain favor from the court. Mr. Miller’s tactics have been successful, but hardly seem necessary, as the trial judge, in comments to the Defendants and court orders, has already taken a personal stance in favoring the state’s case.
IX. RIGHT FOR PRIVACY
The Defendant has been denied his right of privacy under Article 1, Section 23 of the Florida constitution in the attacks he has suffered at the hands of Robert Nichols and Robert Foley of the Lee County State Attorney’s Office in their participation in the crimes against him. The investigators conducted unwarranted wire taps against the Defendant in the months prior to his arrest, and while informing the Defendant’s wife of the intercepted phone communication as a scare tactic to threaten her, have later denied such actions. These state employees also participated in the unlawful arrest and search that took place at the Defendant’s home in Goshen, New York. This is proven in video recordings with Nichols and Foley, and in sworn written and video statements by Robert Nichols. Mr. Nichols invaded the personal life of the Defendant, harassed and humiliated his wife, stole personal items without a warrant or a valid chain of custody, including the couple’s co-authored book as verified in the sworn deposition of Robert Nichols.
WHEREFORE, the Defendant moves this court to enter an order dismissing all charges for the reasons stated herein.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the Clerk of Court at 1700 Monroe Street, Fort Myers, Florida 33901 and to the Office of the State Attorney, 2000 Main Street, 6th Floor, Fort Myers, Florida 33902 on this 8th day of December, 2017.
2501 Ortiz Avenue
Fort Myers, Florida 33905