The Appeals Court does not want to hear about my problems
The
Appeals Court does not want to hear from me ("generic" document)
But I am an American. I want to be heard! (Motion for Oral Argument, below)
To tell you what they did to me (why it was UNLAWFUL, for it was a criminal sanction.
The U.S. Supreme court tells us we should file civil racketeering (civil RICO) cases
Look what they did to me for making such civil RICO claim in my DEFENSE!
No. 05-02-01683-CV
§
In the Court of Appeals
Fifth District of
UDO BIRNBAUM
Defendant,
Counter/Cross-claimant, Third Party Plaintiff - Appellant
v.
THE LAW OFFICES OF G. DAVID
WESTFALL, P.C.
Plaintiff, Counter Defendant
- Appellee
G. DAVID WESTFALL
Cross/Third Party Defendant,
Sanction Movant - Appellee
CHRISTINA WESTFALL
Cross/Third Party Defendant,
Sanction Movant - Appellee
STEFANI PODVIN
Cross/Third Party Defendant,
Sanction Movant - Appellee
Appeal from the 294th
Judicial
The Honorable Paul Banner,
"visiting judge"
Trial cause no. 00-00619
------------------------------
( there is no "waiver" of
anything on my part )
------------------------------
UDO BIRNBAUM
PRO SE
540 VZ CR 2916
(903) 479-3929
IDENTITY OF
PARTIES AND COUNSEL
The
Law Offices of G. David Westfall, P.C.[1] Frank C. Fleming[2]
Plaintiff, Counter-defendant PMB 305,
(214)
373-1234
(214)
373-3232 (fax)
Udo
Birnbaum[3] Udo
Birnbaum, pro se
Defendant, Counter-claimant, 540 VZ 2916
Third party plaintiff
(903) 479-3929
(903) 479-3929 fax
G.
David Westfall[4] Frank
C. Fleming
Third party defendant
Stefani
Podvin[5] Frank
C. Fleming
Third party defendant
Christina
Westfall[6] Frank
C. Fleming
Third party defendant
Hon.
Paul Banner[7],
Trial judge
MOTION FOR
ORAL ARGUMENT
( there is no "waiver" of
anything on my part )
I.
This motion is prompted in part by the
entry posted on this
EVENT INFORMATION for Case
Number: 05-02-01683-CV
* SMIS
Date Procdg Event By Disp. M#
Bk / Pg
O E
*
I have, of course, become sensitized to any
issue regarding "waiver", particularly upon Appellees' lawyer trying
to tell this Court in their Brief that "by failing to list any points or issues to be presented on
appeal, in his request for a partial
[court] reporter's record, Birnbaum has waived any and all
issues presented on appeal". (Appellees'
Brief page 2, etc)
II.
So I called the Clerk's Office and asked
what that "waiver" entry on the web site meant. "It means that
there will be no oral argument", I was told.
I stated that I was not a lawyer, but that
I knew "waiver" did not mean that, that "waiver" means that
someone is knowingly giving up some right, and that I surely was not
intending to do that. She repeated what she had said, and so did I. I asked if
she was a lawyer, and she said "no".
III.
So she connects me to a Claudia McCoy, who
turned out to have been the person who had sent me the letter dated
I asked her whether that October 21 date
for "submission" was a "hearing", to which I received words
but no answer. Phrasing it differently, I asked whether it was public, to be
told it was not.
I likewise asked her what that
"waiver" meant, to again be told the same thing, i.e. that there will
be no oral argument. I likewise told her that I was not a lawyer, but that
"waiver" had nothing to do with oral argument. And after likewise
going around once again, she politely hinted that I was arguing with her.
"No, I am not trying to argue with
you. I am trying to get before the judges to hear me". Then the discussion went to me having to file
a motion, which this document is.
IV.
I did, however, ask about that letter to
me, what that phrase "The Court has determined, etc." meant, as to
what court document existed that made her write that phrase. I was informed that it was a "list of
cases" which "the judges" had, listing the cases to which there
was to be a letter like mine, I guess, and that it was just
"internal". I asked her if she
was a lawyer, and she told me "no".
V.
I, of course, have personal experience with
lawyers (and the trial judge, in this case) not following the law, as outlined
in my Appellant's Brief and my Reply Brief, and much more detail of
unlawfulness, denial of due process, and retaliation in the trial court than I
was able to present under the format and limits of a paper-only appeal (My Appellant's Brief and Reply Brief).
VI.
In the underlying civil RICO case[8]
that is the basis of the supposed "legal fee" matter in this case,
THREE judges in that case in the U.S. Fifth Circuit, miraculously EACH found an
"adverse judgment" in a frivolous "beaver dam" case against
me, when there was NO judgment at all, with NO ONE even claiming that there
was. And EACH ONE of the THREE judges somehow "found" that the
"nucleus of operative facts" in the civil racketeering case was the same
as in the "beaver dam" case, and so "inextricably
intertwined", that under the Rooker-Feldman[9]
doctrine the civil RICO suit was a "collateral attack against an adverse
state court judgement" so as to preclude the Dallas Federal Court to have
had subject matter jurisdiction over the civil RICO case in the first
place.
Then they proceeded,
EACH OF THE THREE JUDGES, to affirm the judgment of the Dallas Federal
Court they had just found lacked jurisdiction!
I am
convinced that NO JUDGE ever saw my case, not in the Dallas Federal Court[10],
nor the New Orleans Fifth[11],
BUT ONLY SOME SINGLE CLERK!
VII.
With such said as a background, I ask for
judicial notice, that my Appeal in THIS court is NOT
of the "garden variety" type. It is upon the issue of abuse of the
judicial system itself upon me.
That I was UNLAWFULLY punished (sanctioned)
$62,255, for the completed act of having made a civil RICO defense
and cross-claim nearly TWO years earlier, a clearly completed act,
followed by a punitive (not coercive) sanction, all without DUE
PROCESS. And for speaking out,
via my civil RICO claim,
at the urging of no less than the U.S. Supreme Court:
"[A] Congressional
objective [in enacting civil RICO with treble damages] of encouraging civil
litigation not merely to compensate victims but also to turn them into private attorneys general,
supplementing Government efforts by undertaking
litigation in the public good."
Rotella v. Wood et al., 528
PRAYER
WHEREAS, as an American,
I ask to be allowed to detail these matters directly before the panel in this
Appeal. I will not "waiver" ANY of my rights, including my
Right to complain to a higher court, of LAWLESSNESS by a lower
court.
The BEAVER DAM case against me was and
still is frivolous, and I pray that I am being heard. This mindset I am
complaining about does not have to become another "Watergate"[12].
My being suddenly "sanctioned"
(punished) $62,255 for having spoken out with my civil RICO claims, TWO YEARS
EARLIER, and in my defense, is ludicrous at best.
Sincerely,
________________________
Udo Birnbaum, pro
se
540 VZ 2916
(903) 479-3929 phone and fax
Certificate
of Service
This is
to certify that on this the ___8___ day of August, 2003 a copy of this document
was sent by Regular Mail to attorney Frank C. Fleming at PMB 305,
A copy of
this document has also this day been provided for Judge Paul Banner through Pam
Kelly, Court Coordinator for the 294th District Court in
___________________
Udo Birnbaum