Contempt Abuse Is Misconduct Under State Law But Is Not Judicial Misconduct Under the Federal Statutes

Federal Judicial Misconduct

U.S. District Judge Donald L. Graham is a rogue judge by any reasonable and objective standard.

Complaints of Judicial Misconduct against federal judges are currently governed by 28 U.S.C. §§ 351-364, formerly 28 U.S.C. § 372. Complaints under this act are supposed to be confidential. Judges like U.S. Circuit Chief Judge J.L. Edmondson, Eleventh Circuit, U.S. Court of Appeals have used the perfect scam to defeat claims of judicial misconduct under the Judicial Misconduct and Disability Act, 28 U.S.C. § 351, et.seq. The perfect scam is a "negative definition" of judicial misconduct. A negative definition is a "definition which states what a thing is NOT rather than what it is." See http://academic.csuohio.edu/polen/LC9_Help/2/25negative.htm. Judge Edmondson does not define misconduct as he simply disagrees with every act that alleges misconduct in a complaint is not judicial misconduct. It is difficult, if not impossible to find an affirmative definition of what judicial misconduct is under the federal statutes. Consequently, a negative definition is used to define judicial misconduct out of existence. As a result of the way Judge Edmondson and his minions interpret the Judicial Misconduct and Disability Act and coupled with confidentiality and secrecy, it is virtually impossible to find information with respect to what constitutes judicial misconduct under the federal statutes. As a consequence of this lack of information, this post uses documented cases of judicial misconduct under state law on the premise that, at the very least, federal judges are held or should be held to the same standard as state court judges. What a radical concept! U.S. District Judge Donald L. Graham, given his entire record, would be removed from office under any state statute.

State Court Judges Disciplined For Contempt Abuse Under Judicial Misconduct Statutes

Richard S. Lawrence, a Judge of the Family Court, Nassau County, New York received an official admonition from the New York Commission on Judicial Conduct for contempt abuse. See URL: http://www.scjc.state.ny.us/Determinations/L/lawrence.htm. In this matter, the court concluded that Judge Lawrence's "failure to adhere to mandated contempt procedures -- which he clearly knew about but disregarded -- constitutes misconduct warranting public discipline". Judge Lawrence was found guilty of the following:

• Failure to comply with well-established procedural safeguards for summary contempt.
  
• Hastily incarcerating and detaining a litigant without procedural justification.
  
• Improperly and repeatedly raising the sentence of litigant and his attorney. The Commission concluded: "Under these circumstances the escalation of the sentence -- from five days to ten days to twelve days -- was a gross abuse of discretion and a substantial overreaction to their efforts to protest his ruling."
  

In Disciplinary Counsel v. Karto, 94 Ohio St.3d 109;2002 Ohio 61; 760 N.E.2d 412; 2002 Ohio LEXIS 23,* (2002), Judge Steven Ray Karto, among other things, was disciplined for bringing a contempt action without formal proceedings and for threatening an individual with contempt. Judge Karto was suspended from the practice of law for six months and suspended without pay from his position as judge. As documented below, Judge Donald L. Graham was guilty of far more egregious conduct but suffered nothing.

U.S. Circuit Judge J.L. Edmondson Says Contempt Abuse Is Not Judicial Misconduct

U.S. Circuit Judge, J.L. Edmondson, Chief Judge, Eleventh Circuit, U.S. Court does not consider abuse of the federal contempt power to be judicial misconduct. See Complaint and Order, Case No. 02-0059; Combined Complaint And Order, Case No. 05-0011; Combined Complaint And Order, Case No. 05-0013.

U.S. Dist Judge Donald L. Graham has exhibited a total and utter disregard for the rule of law with respect to the federal contempt laws and procedures. It is difficult to argue that Judge Graham’s behavior has not been contemptuous and disdainful to the rule of law. Judge Graham’s defiance of well established law has inflicted the following damage on Mason:

• Judge Graham has terrorized both Mason his children who had to live with Judge Graham’s reckless and lawless behavior.
• 5 years supervised release probation
• A special condition that precluded Mason’s use of the Internet. This is a really pernicious punishment as Mason made his living as a MCSE, Micrsoft Certified System Engineer, CNE, Certified Novell Engineer working on computer networking and internetworking systems.
• $200,000 in legal fees when Judge Graham had ceded jurisdiction of the case.
• Use of U.S. Marshal and Power of U.S Attorney to Stop Criticism of Judge Graham, See mcneilmason.wordpress.com, post “Power of US Government Used To Suppress Criticism of U.S. Dist. Judge Graham“.

In order to inflict this damage, Judge Graham intentionally disregarded prevailing legal standards and fundamental notions of due process which included, but is not limited to the following patently unlawful behavior:

• Judge Graham denied Mason due process by disregarding the requirements of Federal Rule of Criminal Procedure 42(b) by failing to state “the essential facts constituting the criminal contempt charged” and describing them as such. The supposed show cause order rendered by Judge Graham describes “contemptuous acts” that are completely different from the information filed by the Government. The bench trial proceeded based upon the information and not the “essential facts” or “”contemptuous acts” listed in the show cause order. See “Judge Graham Violated Mason’s Due Process Rights by Disregarding the Criminal Contempt Procedure“.
• Judge Graham used a clearly void sua sponte issued pre-filing that was rendered on September 20, 2001 [Docket Entry No. 878 or (D.E. 878)] to form the basis of a criminal contempt complaint and conviction. The information alleges a violation of this sua sponte issued pre-filing injunction. This sua sponte issued pre-filing injunction has multiple due process flaws and jurisdictional defects. This sua sponte issued pre-filing injunction lacks the requisite factual finding. This sua sponte issued pre-filing injunction misstates material facts. Judge Graham is willingly flaunting the law. See “Judge Graham Is Willfully Flaunting The Law“.
• The Eleventh Circuit, U.S. Court of appeal assisted Judge Graham in denying Mason’s civil rights by repeatedly refusing to review this sua sponte issued pre-filing injunction for validity. See “The Co-Conspirators and Appellate Review“. This sua sponte issued pre-filing has never been reviewed for validity.
• Judge Graham was motivated in part by his desire to intimidate and retaliate against Mason for filing 28 U.S.C. § 372(c) against him. See “Circumstantial Evidence and Judge Graham’s Motive “.
• Judge Graham used the criminal contempt procedure to attempt to force Mason to drop a lawsuit against him. See “Contempt Abuse And Coercion To Drop Lawsuit Against Judge Graham “.
• Judge Federico A. Moreno, a colleague of Judge’ Graham refuses to endorse Judge Graham’s abusive conduct with respect to the contempt procedure and conviction. Judge Moreno makes only the mitigating argument that Judge Graham did not act in bad faith. See “Chief Judge Federico A. Moreno Declines to Endorse Judge

Support for these allegations are fully set forth at “http://mmason.freeshell.org/blog/should_us_dist_judge_graham_be_criminally_indicted.htm” and “http://donaldlgraham.blogspot.com/2008/09/is-us-dist-judge-donald-l-graham.html“. These sites ask the question: “Is U.S. Dist. Judge Donald L. Graham a Criminal?” Additionally, even more outrageous conduct is set forth at: Egregious Documented Acts of Judicial Misconduct by Judge Donald L. Graham

Chief Judge Federico A. Moreno Declines to
Endorse Judge Graham

Chief Judge Federico A. Moreno, United States District Court, Southern District of Florida, was sent a letter on March 25, 2008 and told of the behavior described above and declined to endorse Judge Graham's behavior or deny any of the allegations listed above. In a letter dated April 4, 2008, Judge Moreno wrote:

I am in receipt of your letter written to me as a Chief Judge of the Southern District of Florida about actions by Judge Donald Graham. In that letter, you also complained about the Chief Circuit Judge J.L. Edmondson. As you can understand one district
judge cannot review the actions of another district judge. This rule applies to the Chief Judge of the District as well. It is before the Eleventh Circuit Court of Appeals in Atlanta that any complaint as to a ruling made by a District Judge can be made, I assure you that any decision rendered by Judge Graham was made in good faith upon what he perceived to be the law. Judge Graham has an impeccable reputation. However, if you feel that a judge has erred, the appellate judges in Atlanta are the ones who can decide what to do about it. Thank you for writing.

Pattern And Practice

This post is part of an overall pattern and practice of using extreme measures and lawlessness to conceal the misconduct of Judge Graham. See Documented Allegations of Misconduct. The Administrative Office of the United States Courts, Judicial Conference, Committee on Judicial Conduct and Disability has stated:

[A] judge’s pattern and practice of arbitrarily and deliberately disregarding prevailing legal standards and thereby causing expense and delay to litigants may be misconduct. However, the characterization of such behavior as misconduct is fraught with dangers to judicial independence. Therefore, a cognizable misconduct complaint based on allegations of a judge not following prevailing law or the directions of a court of appeals in particular cases must identify clear and convincing evidence of willfulness, that is, clear and convincing evidence of a judge's arbitrary and intentional departure from prevailing law based on his or her disagreement with, or willful indifference to, that law.

See http://www.uscourts.gov/library/judicialmisconduct/jcdopinions108.pdf.

The Eleventh Circuit's Chief Judge, J.L. Edmondson, has fought tooth and nail to keep from addressing a documented pattern and practice of disregarding well established law by Judge Graham. See mmason.freeshell.org/372c or mmason.freeshell.org/edmondson/edmondson. Judge Graham's misconduct and Judge's Edmondson's defense of Judge Graham's misconduct are fully documented in the following judicial misconduct complaints:

No. 01-0054; No. 01-0054-Judicial Council; No. 01-0068; No. 01-68-Judicial Council; INTERVENING MANDAMUS; No. 02-0006; No. 02-0006 -Judicial Council; No. 02-0029; No. 02-0034; No. 02-0052; No. 02-0059; COMPLAINTS FILED IN 2005; No. 05-0008; No. 05-0011; No. 05-0012; No. 05-0013; No. 05-0020; No. 05-0021.

The following complaints of judicial misconduct are currently pending against Judge Graham:

• Judicial Conference
  
• Reconsideration
  
• June 25, 2008
  
• July 9, 2008
  
• July 15, 2008
  

U.S. Dist. Judge Donald L. Graham Construes Recusal Statute To His Liking and Sets About Wreaking Havoc

Wednesday, July 16, 2008

J.L. Edmondson

c/o Thomas K. Kahn, Clerk
U.S. Court of Appeals for the 11th Circuit
56 Forsyth St. N.W.
Atlanta, Georgia 30303

RE: Complaint of Misconduct Against U.S. Dist. Judge Donald L. Graham[1]

Dear Judge Edmondson:

Please consider this complaint along with my prior complaints to further buttress my argument that Judge Graham has engaged in a pattern and practice of disregarding prevailing legal standards. On January 8, 2008, the Committee On Judicial Conduct And Disability, with whom you apparently disagree, proclaimed:

[A] judge’s pattern and practice of arbitrarily and deliberately disregarding prevailing legal standards and thereby causing expense and delay to litigants may be misconduct. However, the characterization of such behavior as misconduct is fraught with dangers to judicial independence. Therefore, a cognizable misconduct complaint based on allegations of a judge not following prevailing law or the directions of a court of appeals in particular cases must identify clear and convincing evidence of willfulness, that is, clear and convincing evidence of a judge's arbitrary and intentional departure from prevailing law based on his or her disagreement with, or willful indifference to, that law.

See Opinion online at: http://www.ca9.uscourts.gov/coa/newopinions.nsf/F822E1DE5540855A8825708B0081F154/$file/0389037o.pdf?openelement. I refer you specifically to the following complaints: No. 01-0054;No. 01-0054-Judicial Council;No. 01-0068;No. 01-68-Judicial; Council;No. 02-0052;No. 02-0059;No. 05-0008;No. 05-0011;No. 05-0012;No. 05-0013;No. 05-0020;No. 05-0021 and the Complaints dated June 25, 2008 and July 9, 2008 and the Motion for Reconsideration.

It is somewhat ironic that Judge Graham doesn’t respect your authority either even though you have been Judge Graham’s chief protagonist and apologist. Judge Graham has totally disrespected you and the opinion you authored in Bradley Murray v. Ray W. Scott, Jr., B.A.S.S., Inc., 253 F.3d 1308 (11th Cir. 2001).

Background Facts

I filed an employment discrimination lawsuit against the Highlands County Board of County Commissioners and Heartland Library Cooperative and other governmental entities and individual government employees in February 1999. The case was originally assigned to then Chief Judge Edward Davis who retired. On February 20, 1999, Judge Davis allowed me to proceed in forma pauperis, "IFP", or to proceed without paying the required filing fee for a lawsuit. Docket Entry No. 3. This case was ultimately assigned to Judge Donald L. Graham and Magistrate Frank Lynch Jr., Case No. 99-14027-CV-Graham/Lynch. After protracted litigation, the case was dismissed, not on the merits of the case, but based upon banned and irrelevant out of court constitutionally protected and legal communications between Highlands County and Mason. "R&R" (D.E. 766), Order adopting R&R (D.E 791). See Banned Communications, http://mmason.freeshell.org/OverRuleFirstAmendment.htm.

In June and July 2000, Maria Sorolis and Brian Koji, Allen, Norton & Blue asked the Magistrate to grant them preliminary injunctions that required me to contact them before I could talk to the government defendants. These orders required me, a nonlawyer, living in Sebring, FL to contact private attorneys some 90 miles away in Tampa, FL . These orders were granted on June 19, 2000 and July 25, 2000 in part stated:

“Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.” (DE #201). This order is dated June 19, 2000,

“Plaintiff shall correspond only with Defendants' counsel including any requests for public records.” (DE #246). “Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.” (DE #246). This order is dated July 25, 2000.

Judge Graham has expressly stated that the issuance of the injunctions by Magistrate Judge Frank Lynch, Jr. was not "clearly erroneous nor is it contrary to law." See Docket Entry No. 407. However, Congress and the law disagree as the law expressly states that: "Notwithstanding any provision of law to the contrary— a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief...," 28 U.S.C. § 636(b)(1)(A). I appealed this matter, but the Eleventh Circuit just issued an unpublished opinion and ignored the above orders and Judge Graham’s failure to disqualify. This appeal, Case No. 01-13664-A , has been referred to as the “appeal from hell”. See mcneilmason.wordpress.com, post entitled “Eleventh Circuit Case No. 01-13664: The Appeal From Hell”.

On September 20, 2001, Judge Graham rendered a pre-fling injunction sua sponte, or on his motion and without notice to the litigant Marcellus M. Mason. See Docket Entry Number 878, (D.E. # 878) . Page 3, of this document boldly asserts: THIS CAUSE came before the Court sua sponte. This sua sponte issued pre-filing injunction, though clearly void, formed the basis of a criminal contempt complaint and conviction. See mcneilmason.wordpress.com, post entitled “Eleventh Circuit Sits Idly By While A Clearly Void Sua Sponte Issued Pre-Filing Injunction Wreaks Havoc On A Man’s Life”.

ALLEGATIONS OF MISCONDUCT SUPPORTED BY THE RECORD

Judge Graham has usurped authority by making decisions in a case, 99-14027-CIV, where he was legally disqualified. On May 7, 2002, Judge Graham issued an order recusing himself from Case No. 99-14027-CIV-Graham for “contempt proceedings only” by stating that:

[T]he undersigned district judge, to whom the above styled case has been assigned, hereby recuses himself for contempt proceedings only and refers the case the Clerk of Court for reassignment for contempt proceedings only pursuant to 28 U.S.C. § 455 and Local Rule 3.6..

See (D.E. #908). If your published opinions and that of the Eleventh Circuit mean anything, then Judge Graham was acting without legal authority for all actions taken in Case No. 99-14027-CV-Graham after May 7, 2002.

But when a district judge considers recusal, he must consider his potential conflict with regard to the overall case, not just his potential conflict for each separate issue or each stage of the litigation. See United States v. Feldman, 983 F.2d 144, 145 (9th Cir. 1992) ("[W]hen a judge determines that recusal is appropriate it is not within his discretion to recuse by subject matter or only as to certain issues and not others.").

See Bradley Murray v. Ray W. Scott, Jr., B.A.S.S., Inc., 253 F.3d 1308 (11th Cir. 2001). "Once a judge has disqualified himself, he or she may enter no further orders in the case.... His power is limited to performing ministerial duties necessary to transfer the case to another judge (including the entering of `housekeeping' orders." See In re: Bellsouth Corporation, In re: Terry Price and Lehr, Middlebrooks, 334 F.3d 941 (11th Cir. 2003)(quoting Moody v. Simmons, 858 F.2d 137, 143 (3rd Cir.1988)).

Judge Graham has used his usurped authority by taking the following adverse and abusive actions against me when he had no legal authority to act in Case No. 99-14027.

1. On 09/13/2002, Judge Graham entered a final judgment against me which awarded $200,000 in legal fees against me. (D.E. #911).
2. On 12/20/2002, Judge Graham has arrogated his own authority by arbitrarily denying the right to appeal in forma pauperis when he had no authority to act. (D.E. #927).
3. 01/04/2005, Judge Graham refused to disqualify himself again. (D.E. #931).
4. I submitted several requests to file motions for relief under Rule 60(b)(4) that Judge Graham failed to act on or to properly file with the Clerk of Court. These requests were dated: (1) December 11, 2004; (2) Friday, December 24, 2004; (3) December 28, 2004; (4) January 03, 2005. However, Judge Graham hand selected a request to file a motion and did actually file that request. See Letter dated 12/16/04, (D.E. #932). Judge Graham is cherry picking requests to file motions that he does not have the legal authority to decide.
5. 01/9/2005, Judge Graham ordered me to come from my home in Sebring, FL to Fort Pierce, FL, some 80 miles for a “status conference” in Case No. 99-14027-CV. (D.E. #933).
6. On 1/14/05, Judge used this “status conference” not to decide any motion, but to “advise” me “not to file any future pleadings” in a case that he had disqualified from. See (D.E. #934). Judge Graham used the so-called “status conference” for intimidation. In this unsigned document, (D.E. #934), Judge Graham ordered someone to file a document stating: “Mr. Mason cautioned that his actions may have adverse affect on his criminal case.” There was absolutely no discussion of the merits of the one page requests to file motions that I had submitted. Judge Graham knew that I was on probation at the time. Judge Graham ordered, Frank Smith, U.S. Probation, Robert Waters, Assistant U.S. Attorney, and Lynn Waxman, an appellate attorney, to be present at this “status conference”. Judge Graham refused to memorialize his usurped “authority and “commands” to writing. Judge Graham attempted to sua sponte modify the sua sponte issued pre-filing injunction of September 20, 2001, (D.E. #878). Rather than write an order himself, Judge Graham had a clerk to file an unsigned piece of paper.
7. On 02/14/2005, Judge Graham has arrogated his own authority by arbitrarily denying the right to appeal in forma pauperis when he had no authority to act. See Order dated 02/14/2005 (D.E. #939). As a result of this adverse action, I lost my right to appeal his abusive behavior.

Judge Edmondson could you please help stop this man from terrorizing me and my family? It appears Judge Graham is above the law and will not be disciplined under any set of circumstances. Judge Edmondson, please keep in mind that other Judges and the legal community is watching how you handle this matter.

Sincerely,

Marcellus M. Mason

214 Atterberry Drive

Sebring, FL 33870

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[1] An online version of this complaint is available at: http://mmason.freeshell.org/372c/Complaint_07152008.doc ; This document has embedded clickable links for ease of investigation by the Judicial Council and other interested parties. This complaint will also be featured in a post at http://donaldlgraham.blogspot.com .