Dustin OBrien 30 West 60th Street, Apt.

8L New York, New York 10023 Tel: (718) 736-5515 Fax: (212) 213-1093 __________________________________________________________________________________ __________________________________________________________________________________ * By USPS First Class Mail * October 31, 2012 Hon. Allyne R. Ross United States District Court Eastern District of New York 225 Cadman Plaza East Brooklyn, NY 11201 Re: OBrien v. Calvo, et al., 12-CV-2700 (ARR-MG).

Dear Judge Ross: On October 26, 2012, Bryan Dearinger submitted a Notice to Appear on behalf of the United States and moved by letter to request, that the Court defer the United States deadline to answer or otherwise respond to the amended complaint. I am writing to oppose that request inasmuch as Mr. Dearinger asks that the United States be allowed to postpone its answer until the Court decides certain threshold issues. I do not oppose Mr. Dearingers alternative request that the United States have until December 12, 2012 to answer. In an effort to convince the Court of the merits of a seemingly customary request that the United States not be compelled to answer Plaintiffs constitutional challenges to the Organic Act of Guam, the United States argues that [p]laintiff appears to have named the United States as a defendant solely in a 28 U.S.C. 2403-type capacity and that Plaintiff has failed to [s]pecificallyarticulate any allegations of conduct on the part of the United States or allege any specific injury caused by any act or omission of the United States. Those arguments rest upon a reading of the First Amended Complaint (the FAC) that ignores a very obvious source of Plaintiffs alleged harm that was plead and should be attributed directly to the United States. Plaintiff plead to being unlawfully coerced by the civil and criminal laws of the United States1, which he plead with regard to the Territorial Defendants but was also meant to be attributed to the United States by and through the allegations that Guam and its territorial agencies have been held by courts of law to be nothing more than agency-like instrumentalities of the United States government.2 FRCP 8(a)(2) requires that a complaint contain a short and plain statement of the claim showing that the pleader is entitled to relief, which Plaintiff more than satisfied by supporting his allegations with legal authority. The coercive governmental processes complained of in the FAC that forced Plaintiff to submit a tax return form to the Territorial Defendants were only coercive because of the United States ability to (1) request a warrant for the arrest of Plaintiff.3 in the event of the violation of the internal revenue laws that
1 2 3

See Pl.s First Am. Compl. at 8, 53 See Pl.s First Am. Compl. at 22, 23, 48 18 U.S.C. 3045

Honorable Allyne R. Ross OBrien v. Calvo, et al., No. 12-CV-2700 (ARR-MG) October 31, 2012 Page 2

Plaintiff has identified4, (2) arrest Plaintiff without a warrant for violation of the internal revenue laws5, (3) seize Plaintiffs property subject to forfeiture under the internal revenue laws6, (4) extradite Plaintiff to Guam7 for prosecution8 in the event of willful failure to file his income tax return with the Territorial Defendants, and (5) to prosecute Plaintiff.9 within the United States for violations of the internal revenue laws. Surely the United States would not contest as a general matter its sovereign ability to execute any of the previously identified criminal actions against Plaintiff for tax violations while he is a resident of the State of New York and outside of the jurisdiction of Guam. As such, the United States cannot ignore the fact that Guam is an instrumentality of the federal government and if officials in Guam could seek warrants/prosecute Plaintiff for taking any violative action with respect to the Guam Territorial Income Tax (the GTIT), it only follows that the United States could do the same. Despite Plaintiffs misgivings about the unconstitutional processes created to compel him, as a resident of the State of New York10, to avail himself to federal actors exercising significant and coercive governmental authority without being members of the Executive Branch and who gain their authority pursuant to Congress article IV plenary authority to regulate the territories, he knowingly chose to file his Form 1040 Guam Individual Income Tax Return 2011 with the understanding that his constitutional rights were likely being violated. Plaintiffs fear of criminal prosecution by the United States or Guam forced the complained of act and the Supreme Court has long held that litigants need not bet the farmby taking the violative action before testing the validity of the law11 The Court should also give little credence to the United States conclusory argument that deferral is warranted because of the uncertain procedural posture of this case, including the distinct possibility that this case will be re-filed in or transferred to the District of Guam, and/or will be decided

See Pl.s First Am. Compl. at 2 5 26 U.S.C. 7608(b)(2)(B) 6 26 U.S.C. 7608(b)(2)(C) 7 18 U.S.C. 3182 8 48 U.S.C. 1421i(f) 9 28 U.S.C. 547(1) 10 Balzac v. Porto Rico, 258 U.S. 298, 308-09 (1922) (Taft, C.J.) (explaining that with regard to the Incorporation Doctrine as created by the Insular Cases that the Porto Rican can not insist upon the right of trial by jury[t]he citizen of the United States living in Porto Rico can not there enjoy a right of trial by jury under the Federal Constitution, any more than the Porto Rican. It is locality that is determinative of the application of the Constitution, in such matters as judicial procedure, and not the status of the people who live in it.) (emphasis supplied). 11 Free Enterprise Fund v. Public Company Accounting Oversight Board, 130 S. Ct. 3138, 3151 (2010) (Roberts, C.J.) quoting MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007) (explaining that where threatened action by government is concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threatfor example, the constitutionality of a law threatened to be enforced. The plaintiff's own action (or inaction) in failing to violate the law eliminates the imminent threat of prosecution, but nonetheless does not eliminate Article III jurisdiction.) (emphasis in original) citing Terrance v. Thompson, 263 U.S. 197 (1923).
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in the first instance on non-constitutional grounds, which Mr. Dearinger supports with no legal authority or facts. Maybe this case is unique or novel but nothing about the procedural posture thus far can be characterized as uncertain. Congress has not conferred exclusive jurisdiction to the District Court of Guam to hear controversies regarding the GTIT and has only restricted the Legislature of Guams ability to lend concurrent jurisdiction to the Superior or Supreme Court of Guam.12 Mr. Dearinger raises the fact that Plaintiff once filed a lawsuit in which the Governor was a defendant. That proceeding has no bearing on the present case before the Court. Plaintiffs suit sounded primarily as a Fair Labor Standards Act and False Claims Act complaint. The suit was the result of the unlawful termination of Plaintiff from the Guam Alternate Public Defenders (the APD) office after he accused the supervising attorney of trying to coerce him into participating in a payroll scheme that worked to defraud the Government of Guam for the benefit of herself and other employees of the APD. The Governors attorneys never answered Plaintiffs complaint, despite proper service upon the Governors office pursuant to FRCP 4(j)(2)(A), and the attorneys who did answer13 had all benefited from a wildly improper ethical breach of confidentiality by an associate at the firm representing the APD. Only after Plaintiff accused the APDs defense attorneys of professional misconduct and professional negligence, which could have resulted in disciplinary proceedings, sanctions, and additional litigation, did the attorneys defending the APD agree to settle the matter.14 Needless to say, the settlement itself was tainted by ethical breaches, was improvident and unethical for the attorneys of record to even engage in, and Mr. Dearingers calling attention to that action is merely an attempt to muddy the waters to distract from the United States culpability in this matter. Lastly, the Court should deny the United States request to defer its answer because a submission on the constitutionality of the Organic Act of Guam is a significant matter of public interest. It is no secret that at one time attorneys within the Department of Justices Office of Legal Counsel (the OLC) likely believed the elected Governship of Guam to violate the Appointments Clause15 as well as a former United States Attorney General.16 In 2007 the OLC announced a simple two-part rule to determine if any position is a federal office and requires appointment pursuant to the Appointments Clause,17 which clearly implicates the Governor as an Officer of the United States. If the Governor of Guam and other elected Governors within our territories lack the constitutional authority 48 U.S.C. 1421i(h)(4), (5) 13 The Defendants moved to dismiss all of Plaintiffs claims except the False Claims Act cause of action, likely because the governments internal investigation supported Plaintiffs claims. 14 See the enclosed: E-mail to Dooley Roberts Fowler LLP, dated October 10, 2011. 15 Gary Lawson, Territorial Governments and the Limits of Formalism, 78 Cal. L. Rev. 853 n. (1990). 16 Gary Lawson and Robert D. Sloane, The Constitutionality of Decolonization by Associated Statehood: Puerto Ricos Legal Status Reconsidered, 50 B.C. L. Rev. 1123 n. 234 (2009). 17 See, Officers of the United States Within the Meaning of the Appointments Clause, 31 Op. O.L.C. 1 (2007) (We conclude that any position having the two essential characteristics of a federal office is subject to the Appointments Clause. That is, a position, however labeled, is in fact a federal office if (1) it is invested by legal authority with a portion of the sovereign powers of the federal Government, and (2) it is continuing. A person who would hold such a position must be properly made an Officer[ ] of the United States by being appointed pursuant to the procedures specified in the Appointments Clause.) (emphasis supplied).
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to carry out their executive duties, including implementing federal tax laws, then millions of Americans living within Puerto Rico, the United States Virgin Islands, the Commonwealth of the Northern Mariana Islands, American Samoa, and Guam are being governed and taxed by improperly constituted territorial governments all in the name of a openly racist judicial doctrine created by the Supreme Court well over 100 years ago18 that the Court has subsequently said should no longer be given any further expansion because the doctrine is very dangerousand, if allowed to flourish, would destroy the benefit of a written Constitution and undermine the basis of our Government.19 For all of the foregoing reasons the Court should deny the United States request in part and allow an answer to be filed by December 12, 2012. Very truly yours, To: Shannon Taitano Assistant Attorney General Office of the Attorney General 287 West OBrien Drive Hagatna, Guam 96910 Tel: (671) 475-3324 Ext. 3090 staintano@guamag.org Bryan Dearinger, Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington D.C. 20044 Tel: (202) 514-3489 bryan.dearinger@usdoj.gov Pro Se Office Eastern District of New York 225 Cadman Plaza East Brooklyn, NY 11201 Enc. See generally, Juan R. Torruella, The Insular Cases: The Establishment of a Regime of Political Apartheid, 29 U. Pa. J. Intl L. 283 (2007). 19 See, Reid v. Covert, 351 U.S. 1, 14 (1957) ([I]t is our judgment that neither the [Insular] [C]ases nor their reasoning should be given any further expansion. The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and, if allowed to flourish, would destroy the benefit of a written Constitution and undermine the basis of our Government.)
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Dustin J. OBrien

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notice of malpractice / intent to disqualify and possible Rule 11 sanction for acting in bad-faith

notice of malpractice / intent to disqualify and possible Rule 11 sanction for acting in bad-faith
dustin.obrien@live.law.cuny.edu
Sent: Tuesday, October 25, 2011 1:49 AM To: dooley@guamlawoffice.com; swavely@guamlawoffice.com Cc: cclaw3@teleguam.net; emiller@guampdsc.net Attachments:OBrien personal phone reco~1.pdf (858 KB)

Mr. Dooley and Ms. Swavely, I have reported your firm, Mr. Visosky, Mr. Dooley, Mr. Forman, and also brought attention to Mr. Cunliffe's almost identical motion to quash, strike, and dismiss, to the Guam Bar Association's Ethics Prosecutor and Ethics Committee. On July 7th, 2011, I contacted an associate at your firm - Jon Visosky, for a consultation in the hopes that I could secure representation in O'Brien v. Gayle et al. [See my personal phone records attached, indicating my contact with your firm]. Mr. Visosky is only one of two attorneys I contacted before filing pro se. During the free consultation he provided to me, I revealed to him particular confidences, including strengths and weakness of my case, strategy, and personal feelings regarding my situation that clearly implicate Guam Rule of Professional Conduct 1.18(d)(1). In addition to having violated that rule by not seeking my consent to represent the Public Defender Service Corporation, your office is in prima facie violation of 1.18(d)(2)(ii) for not having given me written notice of your intent to represent the PDSC. I indicated to Mr. Bradley that I did not believe anyone at your firm has acted in bad faith besides Mr. Visosky. His duty to me was clear and he has without a doubt violated 1.8(d)(2)(ii). I don't believe for a minute that he does not remember this consultation. It is my subjective belief that he has also violated Rule 1.18(d)(1) and your firm is also presently in non-compliance with both rules. I want you to know that I chose to contact Mr. Bradley before giving you notice of this matter so as to not make any subsequent notice to him appear to be retaliatory in nature. I had every intention of acting professional and collegial with your firm and Mr. Cunliffe during the course of this litigation. As you can understand, my learning over the weekend of Mr. Visosky's employment at your firm came with much dismay. I'm as baffeld by your failure to comply with Rule 1.18 as I am the PDSC's unwillingness to settle this matter with me. I'm beginning to suspect that your unwillingness to settle this matter is a result of the exploitation of confidential information I provided to Mr. Visosky. Understand that your failure to comply with Rule 1.18 has now tainted the present state of O'Brien v. Gayle with the specter of highly unethical behavior and bad-faith dealings and I will do everything in my power to put the District Court on notice of that fact. If your firm's negligence has brought about an independent cause of action, I intend to name your firm a a co-defendant in O'Brien v. Gayle et al. Your flagrant violation of Rule 1.18 and participation in this litigation to-date is nothing less than disturbing. If you do not immediately withdraw from representing the PDSC I will file an emergency motion to have your firm disqualified. That motion, if denied, can be appealed immediately to the 9th Circuit as denial of a writ of mandamus. See Lewis C. Nelson & Sons, Inc. v. United States Dist. Ct., 2006 U.S. App. LEXIS 16978 (9th Cir. July, 6, 2006). If you're brazen enough to challenge me on my request that you withdraw, I would suggest you provide me with a very good explanation as to why your firm has failed to provide me
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notice of malpractice / intent to disqualify and possible Rule 11 sanction for acting in bad-faith

with written notice pursuant to 1.18(d)(2)(ii). If I learn that your firm has been colluding with Mr. Cunliffe and sharing confidences I entrusted Mr. Visosky with, I will move to have him disqualified as well. If I learn that anyone involved in this matter has been intentionally acting in bad-faith, I will do everything in my power to see that their bar card is revoked and will move for a Rule 11 sanction before the District Court. Very regrettably, Dustin O'Brien

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