Charles Anthony Malouff, Jr. v. State ( 2015 )

SV.n: vr 'Te:x..-6
QIAp!BS k. !IJ\I.QUFFI JR. §
AKA • CHART IE MUOQPF
§
v. § CASE NO. 03~13-00723-CR
Ct+A~ A.. '(\1\A,t..<>oR"; J"f<. §
A (4< -s'l!A'I'B OF TEXAS
CI-/MZ..L.tE !JVlll L.ovff §
~ l"f'&::£ktt1Yr~ ;S:vPhfl'fl~~-r/:fl... 6cZIIt¥-
WR1'T fiF . 'ffi'1lS".
--.;;.;..~~
TO THE HONORABLE JUDGE OF SAID COURT:
Charlie Malouff, pro se, hereby moves this Court to GRANT, in
the interest of justice, extraordinary relief from his conviction
i~?.>u 1-11 o\l f, (:::~\41 e q'l"""'J> ou & Co" -0 '<.J..& "~=' 1ol-Q.(t J:-1-~)'J\1 1 () \q_{-101)"' oP Th>< 1:1!:> 111\0 RJ !UIJ:I.l- 1-li-W,., ~ 1!. r!f)
l?vrsnaA:E to the Code ef Criminal ProeeGYre? Article 11 07, r:esyJ.-
'In-'S A-134-IY'JOOI;;'!..- Rv<.- 016"-> (1.. • .,;:- lkcF. Cbt>.Ovc.:r· i\.IMI\IJOtvt1'lQO\-Ti!JV Af!!Q(\q\t>
ting in d dee-:i:·Si<9H that was CulitLaL:I' te 1 er ifW€llVeS 'yg,~fla£;J.e
C.ov()?l2.(/i}IJ91NiiJO '" -1-1.;!. \1\{.r-1:- a<:L.q'-4--t;,,,. S:""fle.me>?kcl'Bs-tlf :J:'Ao.> C.GP4!2:r. 4'1.3.S tro~>.-..,.,.&' Fo<--
p • de-t-e-rmit;ed-tly the Supreme Court of t-rr-e-um."t-ed-sta-t-e~-
low-i-ng-reasons: ·
1. ~ =~l;; Conviction Was Obtained Iri Violations Of the First, And Fourth
Amendment's, Fifth, Sixth, Ninth, and Four-teenth Amendment's Right Of Due Process,
And The Right To A Fair Trial Through The Ip.appropriate And Professional
Misconduct Of The Police, The Trial AndApplillate Counsel, The Prosecutor and The
Trial Judge In Violations Of· Texas Law, Federal Law, The American Bar Association,
Model RuJes Of Professionat:C(Jndi.i'ct; The Texas Disciplinary Rules Of Professional
Conduct, And The Texas Code,Of.Judicial
• . . . •
Conduct.· ·:. !' ~
"2... t1: Petitioner Was Denied Effecti~eAssi'stanceof Counsell'hrough Professional
'
Misconduct, And The Failure: Of Counsel To Conduct Sufficient Adversarial Testing Of
Witnesses. ·
.. ,.r •.. , . . ,.. '.·
tlM=ELDmss' · · · .-.,._
'i'his app-lisatioq.is timely beeaase i t is filed @rior--.to
;Nevemeer 10, 2014, aeeerf!iREJ te Jeffer1 B. l(]le, Clerk..
3. The length of sentence is fifteen (15) years (Enhanced).
4. The nature of the crime is Securing Document By Deception,
Ali"i?~A-NT'
5. Other than this motion, Applioant filed, as a result of
professional misconduct and a CONFLICT OF INTEREST by
Appellate attorney M. Ariel Payan and in the prevention
of a furtherance of a miscarriage of justice, a Federal
Writ of Habeas Corpus under 28 USC§ 2254(d)(1), which
was Dismissed Without Prejudice to pursue State remedy.
(See Exhibit 1 ) PJ4P l..ltr1S1Z. 'i:>l:>l'llt$'.2."<::> sy 'T1!E- -ni-1¢> ~oF~
~ WAI'IT" o-t: .:roost>•€ nor-..
6. Other than the above listed motion and application,
Aff..-<..:L..<>f'I'T" Appliea&t has .ne- other motions or applications currently
pending concerning the judgement in this case. '
7. The name and address of the trial judge who convicted
~aant is:
/>. A-NT
Preliminary Hearing: Karen Sage
299th District Court
500 w. 10th st.,
Austin, TX 78701
Arraignment: Karen Sage
Trial: Karen Sage
Sentencing: Karen Sage
Appeal: None
8. The name and address of each attorney who represented
Applioant are as follows:
J\qfls'l.I.A "' 7
Trial: Jackie Wood and Tamara Needles
Sentencing: Jackie Wood and Tamara Needles
Appeal: Arial Payan
AIII/L.C'JMI. rJ I
9. AJ3j3±il-<3aat has no future sentence to serve after completing
the sentence for the judgment being challenged.
10. This application is timely because it is filed prior to
-~~e v enaher 1 8, 2 81 4, according to Jeffer} D. K1le, Cler]c;..
1"11€. CR'>£ e£:..,.;& 1,<.>6/'t>tltC.'::> "!""II T-ttC: ~ CGP A 'i-T . 'f'1. 3 3
GROUNDS
I.
MPts~"'~"'
~p 1 icant'sConviction Was Obtained In Violations Of The
First, And Fourth Amendment's, Fifth, Sixth, Ninth, and
Fourteenth Amendment's Right Of Due Process, And The
Right To A Fair Trial Through The Inappropriate And
( 2)
Professional Misconduct Of The Police, The Trial And
Appellate Counsel, The Prosecutor, And The Trial Judge
In Violations Of Texas Law, Federal Law, The American
Bar Association, Model Rules Of Professional Conduct,
And The Texas Code Of Judicial Conduct.
II. ~~~~It Was Denied Effective Assistance Of Counsel
Through Professional Misconduct, And The Failure Of
Counsel To Conduct Sufficient Adversarial Testing Of
Witnesses.
A fPIBL.l-lwv r - C:riotJ>
Appl±eant respectfully requests lieniency as to form and~ 1 '
rMvl;:l < ('ft 1'7~ A~-*-> t.-\1/Vl I "!CD
AVfii':'-J..II."'T'
"\r..D cited case law. Applxcanl has -RE>- access to Texas Court Rules or
......... s
Texas Case Law. All. case law in the F.C.I. Bastrop law library ~
Federal and Supreme Court law specific. 0\liER "ffi-A)ol- Pe~ .q1->D?J..I'I£.'i2, 1\.X:> ~E
""(<:Z::<...S :bog:_ P~Z<=>fe>IZ. 'Rz<%E,..)""n"'" .t\ U f'/2l>v• DEC!> f$'-1 Il-l.£ ~ "'Cpl)tlTr/1~ of'~~. f-k;i.,O.q'f u,. ,=t, .
Wherefore. ti:l.e WFit ef Ilaeeas eorp01s is a ;r=~ to a State
11\'> >~1"?(£1'/le;I.Jl'"At.- \34:Ve.l== 1? t~tSMI% 10<111 PQ.t;}vt>ia' o" Gzo.mOS~ ACfVItf-. '"'noc.ef~Ce_/
valid fair trial,~or any other relief deemed justified.
Executed on this 2~th day of oee~r, 201~.
~r;<.VA
Respectfully Submitted,
Charlie Malouff
66989 179 i'I78'S'IO
.p., 0. Bex 1 01 9 1-loi.. '"""-'/ ~ rlr<-"-'TY
Baserop, 'FX 78662 'Z"i'i Ll'!-;J
M'6'\.\..LIN1 ...-1-:, ~cr.<£!'" 1,.. ;7uf't-6rl- ~~<><1+511 ,u..e;- ')1{
/
·n5zo
kPPliean~ M@moranetlm of Law and Facts is Incorporated and made
a part hereof by reference and by attachment hereto.
( 3)
:.
i
STATEMENT OF THE CASE '
Applicant was a subject of a Fraud By Deception investigation by the State of Texas,
between April 2011 and August 2013. The case was initiated by Travis County Sheriff's
Deputy, Toby Miller, a person of public trust; who made sure he was identified as a "Senior
Deputy Sheriff," and not as a "concerned citizen" and who was caught, by Applicant, falsifying
time sheets on a federally funded energy grant. Miller, as a Senior Deputy Sheriff, knows that
. - . .
making patently false or misleading statements, material omissions, and providing only personal
beliefs, and assumptions, to establish probable cause, and using his position of authority and
public trust to cover his own crimes and those others associated with him, violated criminal laws
and constitutional rights., Miller in this case, controlled most of the information Travis County
;.., .. - . - ., - ...., -.
District Attorney Investigator Lori'' Carter; ahd Travis County Assistant District Attorney, Holly
Taylor, relied upon, but failed to verify,
.-,.,
or confirm, even after being told to their faces, by the
Jonestown Chief of Police, while they were out "investigating" the case, and Holly Taylor is
seen in a reflective photo, that dearly identifies her by her dark hair (Carter is a bleached
blonde), wedding ring and jewelry (that she wore to court daily) taking the picture over by the
Waste Water Treatment Plant, that Miller was a suspect in an ongoing criminal investigation for
multiple felonies, including the sabotage of Wind Energy Systems in the very case they were
working on. (See Exhibit 2, photos and Exhibit 6, Charlie Malouffv. United States, A-13-CV-
~-, • ,_ ': • • ~ :' ':• ~ ' :• I •
572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate).
Applicant is the Patent (Pending) and Intellectual Property owner of the technology, and
was the grant writer for the City of Jonestown's Jonestown Wind Project, that was under the
.. ~ ·;. -- . . '" ,-
direct and ongoing control of the U.S. Department of Energy (DOE), with other significant
direction and oversight by the U.S. Fish and Wildlife Service, via the Texas Comptroller State
- ,-· -,,, ,· .. , .... '
Energy Conservation Office (SECO) up until the time of Applicant's arrest.
. '
~48FesF~~;~ -~
-..'•·(
'I
... ,,,, .: .. ..,.-."
j
I
Prior to the implementation of the actual Grant, while conducting a DOE mandated NEPA
Environmental Impact Study that was downgraded to an Environmental Assessment, the U. S.
Fish and Wildlife Service (USFWS) mandated design changes on the proposed Wind Energy
Systems requiring the elimination of gny wires, used to secure the original design, to get
approved NEPA permitting. These mandated changes were approved by the USFWS in the
Environmental Assessment permitting process; and submitted to the DOE through SECO, where
the design was approved at each stage of review. ·(See Exhibit 2, drawings and photos of Wind
Energy Systems)
In 2010, while working on a Federally funded Distributed Renewable Energy Grant under
the American Recovery and Reinvestment Act (ARRA), specifically, the Jonestown Wind
,, ., .
Project, Travis County Sheriff's Deputy, Toby Miller, and Jonestown Police Officer, Michelle
Cook, both working on the Grant, in supposedly an off duty capacity, were caught falsifying
" '.
their time sheets to the Grant, their respective law enforcement agencies, and Grant time ·sheets
of other employees (See Exhibit 5, 299th District Court Records, D-1-DC-13-904021-EXH-
VOLUMES 1-27, COURT REPORTERS RECORD, D-1-DC-13-904201_395, pages 544-554
·-(--'' .:~:::. ·.,. ·, .... - ·~:
CLERKS RECORD, and Exhibit 6, .Charlie Malouffv. United States, A-13-CV-572LY (A-11-
·• . •·:.t.:Hjc,:: ''~\:.. ·:- .............. ··
CR-647(1)-LY) 2255 Motion to Vac,;ate, time sheet attachments). The conduct of both of these
persons of public trust, to cover their crimes, began a chain of events that has continually
- .. , ·.--.~
.' . . ""'•
compounded egregious behavior on multiple levels, and has resulted in a complete, in the words
of Travis County 299th District Judge, Karen Sage, " ... travesty ofjustice." (See Exhibit 5, 299th
. '" ··· . ' ::{· ;; ';' ·.. ' ·. . \
District Court Records, D-1-DC-13-904021-EXH-VOLUMES 1-27).
l .• , '
It was during this Environmental Assessment Miller, Michelle Cook, another police officer
who worked for the City of Jonestown,
.
and Eric Graham
.. were caught falsifying time sheets to
• '· ' ,. • • >~ •
the Grant. Miller and Cook also falsified their respective department time sheets. (See Exhibit 5,
·;··.,-•; ····1:. ·, }.4@-fQQ)i~·Qufu-$.·
-~-! -(. ,·.
"'"j'· .• :
299th District Court Records, D-1-DC-13-904021-EXH-VOLUMES 1-27, COURT
REPORTERS RECORD, D-1-DC-13-904201_395 CLERKS RECORD, and Exhibit 6, Charlie
Malouffv. United States, A-13-CV-572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate, time
sheet attachments).
In an attempt to cover up his actions, Miller led an attempt to steal trade secrets of the
Intellectual Property of the Wind Energy Systems, and conduct a hostile take over the
subcontractor company that he had no shareholder, or director, interest in, and the Project, that
he was not a signer on, or responsible party to. (See Exhibit 2, CM Energies Public Venture
Funds Toby Miller Membership Subscription Agreement, Exhibit 5, 299th District Court
Records, D-1-DC-13-904021-EXH-VOLUMES 1-27, COURT REPORTERS RECORD, D-1-
DC-13-904201_395 CLERKS RECORD, and Exhibit 6, Charlie Malouffv. United States, A-13-
' ~. ,. ' ....... .
CV-572LY (A -11-CR-647(1 )-LY) 2255 Motion to Vacate, Secret Meeting attachment) ..
..---- . -. .----. .
The Grantee, the City of Jonestown, SECO and DOE were all aware that with the
structural design changes, a prototype System had to be built and tested prior to the
implementation of installation of the awarded.. Systems. This
.
prototype was constructed, and
tested at the manufacturer's facility in Taylor, Texas, and an official "site check" was conducted
·-·-·-:' -·---, --.•· ' .
by SECO personnel. This site check included inspection of the subcontractor's manufacturing
. ' -- ·,
facility, and all of the materials ordered, including 8 pallets of the original blade material and
delivered and ready for Project implementation. (See Exhibit 2, SECO Site Check photos). All
-·.· .. - ... ........
-
' -
of this was recorded and on file at SECO and DOE (See Exhibit 5, 299th District Court Records,
D-1-DC-13-904021-EXH-VOLUMES 1-27, COURT REPORTERS RECORD, D-1-DC-13-
.·' --·
904201_395, CLERKS RECORD).
Shortly thereafter, Miller, Cook, Graham and others involved in the hostile take over were
terminated and management of the Project transitioned with the approval of the Grantee, the City
' Mlilm9ra;SE~Ym 4r ··
f.,
)
of Jonestown. The same System that was tested in Taylor was taken down, moved over to, and
installed at the Jonestown Waste Water Treatment Plant, in compliance with the Grant, and the
local Utility. All of this was reported timely to SECO and DOE. All of this was done within the
timelines of the first Deliverables mandated in the Grant. (See Exhibit 5, 299th District Court
Records, D-1-DC-13-904021-EXH-VOLUMES 1-27, COURT REPORTERS RECORD, D-1-
DC-13-904201_395 CLERKS RECORD, Exhibit 6, Charlie Malouffv. United States, A-13-CV-
572LY (A-11-CR-647 (1 )-L Y) 2255 Motion to Vacate, Secret Meeting attachment, and Exhibit 2,
photos)
It was during this process one of the CM Energies employees, Aaron Knapek, the electrical
engineer on the Project, short circuited the inverters on the Wind Energy System and caused
approximately $58,000 in damages and repairs. (See Exhibit 2, photos and Justin Shepherd
'.
accounting documents, Exhibit 1, Dan Smith email, and Exhibit 3, Aaron Knapek email and
' .. ,.
Diversified Technologies invoices).
From the beginning this extraordinary, complex, and complicated case became irreparably
' .. ·~ .., . / .
plagued with incompetent and criminal employee conduct, and criminal conduct and cumulative
' ( .
errors from persons of public trust, which included the police, officers of the court, and the
. (' '
judiciary, that violated state law, Federal law, the American Bar Association Model Rules of
Professional Conduct, the Texas Disciplinary Rules of Professional Conduct, the State
. " . - :. •.' --~ .·.,
Commission on Judicial Conduct, and the State of Texas and United States Constitutions. (See
... - '.'
Exhibit
. 5, 299th District Court Records, D-1-DC-13-904021-EXH-VOLUMES
.
1-27, COURT
:--:: ., . •., -~
REPORTERS RECORD, and D-1-DC-13-904201_395 CLERKS RECORD, Exhibit 6, Charlie
Malouffv. United States, A-13-CV-572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate, and
Exhibit 2, emails and photos).
"·-···
,7
Between April2012 and October 2013, Travis County 299'h District Court Judge, Karen
Sage, heard numerous testimonies, and arguments of the prosecutor knowingly and intentionally
hiding and destroying exculpatory evidence and a crime scene and examined numerous other
pieces of material exculpatory evidence. Sage also heard numerous arguments for Frank's
hearings, of ongoing Brady violations, mistrial, dismissal, prosecutorial misconduct, and
selective and vindictive prosecution. (See Exhibit 5, 299th District Court Records, D-1-DC-13-
904021-EXH-VOLUMES 1-27, COURT REPORTERS RECORD, and D-1-DC-13-904201_395
CLERKS RECORD).
On July 15, 2011, Travis County Assistant District Attorney, and prosecutor of the case,
Holly Taylor, left her role as a prosecutor, and thereafter engaged in the role of "investigator"
.~- -- ... -.: .
gathering evidence, interviewing witnesses, getting facts and information, giving legal advice,
-' ~. ' ' .. _,'
and clearly functioning
. as an investigator. (See
.
Exhibit6, Charlie Malouffv. United States, A-
"""v --.·y .. :··:,:'':' ··---- ' .. -lf: ·-: ·
13-CV-572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate, and Supplemental" Report Field
. '
., (,·
., _ _. ;·
Observations-Chief Stetar attachment and Exhibit 2, photo of Taylor taking photos). At that
time, Travis County District Attorney Investigator, Lori Carter, and Taylor clearly lacked
.,
probable cause, and Taylor was n~;-~n a position t~ _cl~ to be an advocate. Holly Taylor,
functioning as an "investigator" from that point on, should not have. been able to hide behind a
cloak of immunity as advocate, and should have been subject to cross-examination on what she
learned and did thereafter, including giving advice to Carter on how to mislead the magistrate,
··:- .. ';?
and navigate her investigation after committing multiple Constitutional violations.
'".,, ...
Miller and Cook, peace officers and persons of public trust, were already involved as
-- ..
suspects in an independent criminal investigation involving state and Federal law, obstructed
., _,~-- -; ..
justice by their conduct in using Miller's friends, Lori Carter, and Greg Cox, to direct events
.-.( 1
'.- -- ! '
away from that investigation, and through the malicious deprivation of constitutional rights,
•,.
portray Applicant as a criminally minded person to intentionally cover up those crimes to pnrsue
their own agendas. (See Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY (A-11-
CR-647(1)-LY) 2255 Motion to Vacate, Toby Miller for Constable)
Complicating this already outrageous injustice, Applicant's Trial Counsel was so confident
in her "my best friencf' relationship with the trial judge, and "trust me" "Karen's got my back"
in her quest to not conduct further adversarial testing of prosecution witnesses, or put on defense
witnesses, and instead "rest," along with co-counsel's demonstrated confidence in that
relationship, they failed in their roles as advoca.tes to the defense. (See Exhibit 1, Judicial
Misconduct and Bar Grievances)
The court is supposed to be the instrument to advance the ends of justice. When the trial
judge, for personal pecuniary interest, turns a blind eye, the trial, and the fundamental
constitutional rights of due process become unduly prejudiced.
r:: ...
During the trial, and after the verdict, Applicant's trial and appellate counsel made
,·.
'·
statements that demonstrated personal knowledge of inappropriate, unethical, and criminal
c . . . ' : ..... -;' . "
~-'- .~
conduct, in violation of the American Bar Association Model Rules of Professional Conduct;
. ,,. ······1
Texas Code of Judicial Conduct, the Texas Disciplinary Ru1es Of Professional Conduct, and the
Texas Penal Code, by the trial judge, Karen Sage, in her decisions to deny Frank's hearings,
' .. ·-·.
dismissal, mistrial, selective and vindictive prosecution, and other motions for pecuniary interest.
As the inappropriate conduct of counsel and the trial judge, which could not have been
discovered previously through the exercise of due diligence, was exposed by the statements by,
trial counsel, Jackie Wood, and Tamara Needles and further compounded by statements from
\ ...... ., '
appointed appellate counsel, Aria! Payan (See Exhibit 1, Judicial Misconduct and Bar
Grievances).
V'.
The totality of circumstances of police misconduct, prosecutorial misconduct, professional
misconduct and lack of responsibility of counsel, and self- serving, pecuniary interests of the trial
judge for political preservation, supported by over 4000 pages of Court Records in two courts, in
addition to formal complaints to the Commission on Judicial Conduct, the Texas Attorney
General, the Texas State Bar Association, the Department of Justice Office Of Professional
Responsibility, front page news paper articles from the Austin American Statesman, and the re-
election website of the trial judge, Karen Sage (see Exhibit 1, Judicial Misconduct complaints
and news clippings), the integrity and the fundamental fairness of the state proceedings, and
· constitutional rights of the Applicant, has come under question and suspicion.
. . ' ' "! ..
PROCEDURAL NEXUS
The AEDPA comprehensively overhauled habeas corpus legislation, including 28 USC
.,-. .
2254, subsections 2254 (d)(1). It is presumed a State court's findings are correct and Federal
court's give deference to the State court's decision, unless "it was contrary to or involved an
.,..., .. -.
unreasonable application of clearly established Federal law as determined by the Supreme Court
I :, ·' C ' •• "' ., .', .
of the United States. Bell v Cone, 535 U.S. 685, 693, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002),
.-, ·:· .. . .. . -:- . ,\ ~ '•"\
Federal courts have the right to issue writs of habeas corpus based on state commitments,
···,
even where state remedies have not been exhausted. Minnesota v Barber, 136 U.S. 313, 34 L.
.. ·, ~-- ·' .
Ed. 455, 10 S. Ct. 862, 3 Inters. Com. Rep. 185 (1886); Minnesota v Brundage, 180 U.S. 499, 45
L. Ed. 639, 21 S. Ct. 455 (1886); Ex-parte Royall, 117 U.S. 241, 29 L. Ed. 868, 6 S. Ct. 734; Re
Wood, 140 U.S. 278, 35 L. Ed. 505, 11 S. Ct. 738 (1891); Cook v Hart, 146 U.S. 183, 36 L. Ed.
934, 13 S. Ct. 40; Markuson v Boucher, 175 U.S. 184, 44 L. Ed. 124, 20 S. Ct. 76; Davis v
Burke, 179,27 S. Ct. 459; Yick Wo v Hopkins, 118 U.S. 356,30 L. Ed. 220, 6 S. Ct. 1064 (1886)
(I:>
.. ,::; ·;_
-·_
. ....., ~-
('•
A State court decision will be contrary to established precedent if the State court confronts
a set of facts that are materially indistinguishable from a decision of the United States Supreme
Court and nevertheless arrives at a result different from the Supreme Court precedent. Wooten v
Thaler, 598, F. 3d. 215, 218 (5th Cir.), cert. denied, 131 S. Ct. 294, 178, LEd. 2d 193 (2010);
United States v Olano, 507 U.S. 725, 736, 123 L. Ed. 2d 508, 113 S. Ct. 1770 (1993) ("Plain
errors or defects affecting substantial rights may be noticed although they were not brought to
the attention of the court.").
A state court decision involves an unreasonable application of Supreme Court precedent if
the State court identifies the correct legal rule from Supreme Court cases, but unreasonably
applies it to the facts of a particular State case. Williams v Taylor, 529 U.S. 363, 407, 120 S. Ct.
• ' ' ' .'' "\ c ' - ~ ' '
,..
1495, 1466 L. Ed. 2d 389 (2000); Bell, 535 U.S. at 694; Puckett v Epps, 641 F. 3d. 657, 663 (5th
Cir. 2011). See also Price v Vincent, 538 U.S. 634, 641, 123 S. Ct. 1848, 155 L. Ed. 2d 877
., .- .
(2003); Brecht v Abrahamson, 507 U.S. 619, 638, n. 9, 113 S. Ct. 1710, 123 L. Ed. 2d 353
(1993); Tumey v Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749, 5 Ohio Law. Abs. 159, 5 Ohio
.. ..~ . .
Law Abs. 1"85, 25 Ohio L. Rep. 236; Neder v United States, 527 U.S. 1,8, 119 S. Ct. 1827, 144
L. Ed. 2d 35 (1999); Edwards v Balisok, 520 U.S. 641, 647, 117 S. Ct. 1584, 137 L. Ed. 2d 906
(1997); Johnson v United States, 520 U.S. 461,469, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997);
·-'-• •..-.·
Rose v Clark, 478 U.S. 570, 577-78, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986).
A court may dismiss an indictment if it perceives Constitutional error. It may draw on its
•· •·'-.<· ,., ' " . r , .• :. .
.• ,,..i:.· _. .
supervisory powers to dismiss an indictment. United. .States
.... - . . . v McKenzie,
.
678 F.2d 629, 631 (5th
Cir. 1982; United States v Holloway, 74 F.3d 249, 253 (11th Cir. 1992); United States v Mills,
. .. .
' ' . ' .;
995 F.2d 480, 486 (4th Cii. 1993); United States v Isgro, 974 F.2d 1091, 1094 (9th Cir. 1992).
5' \! ' • I~ . • _' •. :• . ..,
The subcontractor to the Grant, CM Alternative Energies, Inc., was, at all times, in direct
·,. .• .
contact with the Grantee, SECO and through SECO, DOE, as DOE gave final approval or denial
. ~1etH:BfaHEllHe·9-'
It
on ~lstages of the process. All changes in the Environmental Assessment and structural design
were performed pursuant to federal officers direct orders or to comprehensive and detailed
regulations, such as, NEPA and the Code of Federal Regulations (CFR). Jefferson County v
Acker, 527 U.S. 423, 431, 119 S. Ct. 2069, 144 L. Ed. 2d 408 (1999); Durham v Lockheed
Martin Corp., 445 F.3d 1247, 1251 (9th Cir. 2006); Watson vPhillip Morris Cos., 420 F.3d 852,
855-56 (8'h Cir. 2005). In addition, requirements of the American Reinvestment and Recovery
Act (ARRA) required Buy American and the materials had to be "colnmercially available." (See
Exhibit 2, definitions of connercially available) According to the Fifth Circuit, the fact that a
product supplied to the government comprises connercially available component parts says
nothing about whether the finished product resulted from the exercise of government discretion
as to its design. "All products can eventually be broken down in to various off-the-shelf
... ' :· -~ ' : -~ .;--:_ ' '
components." Miller v Diamond Shamrock Co., 275 F.3d 414, 420 (5'h Cir. 2001). Here the
. ' .-., .. ,.
government mandated Buy American
- !'.....
and structural design changes, and approved the process
. .,_ __ ,.-
~--
. -_ .. --,l. ~-.·.
and end product at each stage of the Project. (See Exhibit 2, Code of Federal Regulations on
.- . .' .·· . ~ -. . .
Sole Source procurement and connercially available).
. .. \···
The First, Fourth, Fifth, Sixth and Fourteenth Amendments to the United States
Constitution provide for the rights of all persons to enjoy freedom of speech, movement,
-, •,- l ~-
association and assembly, petition their government for redress of their grievances of deprivation
...., ._, .. ' .
of rights under the color of authority, to be secure in their persons, to be free from unreasonable
---~-- ·-•·,rc- :·
searches and seizures, to enjoy privacy and be free from deprivation's of life liberty, and
' ·~·' ····r.\t~~:
property without due process of law. Rosenberger v Rector & Visitor's of University of .
<. .. ~--- -- .., ;·_
Virginia, 515 U.S. 819, 833, 115 S. Ct. 2510, 132L. Ed. id 700 (1995); Pope v Illinois, 481 U.S.
497, 509, 956 L. Ed. 2d 439, 107 S. Ct. 1918 (1987); E.g. Ex Parte Tucci, 859 S.W.2d 1 (Tex.
.. .. .
1993); Davenport v Garcia, 834 S.W.2d 4 (Tex. 1992); Chanel4, KGBT v Briggs, 759 S. W. 2d
' Mffi'fierii'ftilttl'fl: 1Q · .
tz.
939 (Tex. 1988); Connick v Meyers, 461 U.S. 138, 146, 103 S. Ct. 1684. 1689, 75 L. Ed. 2d 708
(1983); Rankin, 483 U.S. at 384, 107 S. Ct. at 2896; Morgan v Ford, 6 F.3d 750, 754 (nth Cir.
1993), cert. denied, _U.S._ 114 S. Ct. 2708, 129 L. Ed. 2d 83() (1994); Bryson v City of
Waycross, 888 F.2d 1145, 1149 (lith Cir. 1988), cert denied, 489 U.S. 1013, 109 S. Ct. 1124,
103 L. Ed. 2d 187 (1989); Spano v New York, 360 U.S. 315, 320-321, 79 S. Ct. 1202, 3 L. Ed. 2d
1265 (1959); United States v Gainey, 380 U.S. 63, 68, 85 S. Ct. 754, 758, 13 L. Ed. 2d 658
(1965); Berger v United States, 295 U.S. 78, 55 S. Ct. 629, 79 L. Ed. 1314 (1935); United States
v Tibbetts, 646 F.2d 193, 195 (5th Cir. 1981); United States vJohnson, 577 F.2d 1304, 1308 (5th
Cir. 1978) quoting Unites States v Berrios, 501 F.2d 1207, 1211 (2"d Cir. 1974); American Bar
Association Model Rules Of Professional Conduct; Texas Disciplinary Rules Of Professional
. -·
~- ~
.. '! __ : ~-
-• '
.Conduct.
Government agents, including the police and prosecutor's, maliciously violate an
. ,.--' ,. •.. •'• - ~-
individual's Constitutional rights when they knowingly and recklessly act to deprive a person of
~ -·:,. ·-,-- ··_- ·;._"'("-·.'
those rights, and when they misuse their official powers, and cause grievous injuries. Reckless
disregard encompasses providing false, and or materially misleading information for use jn an
. [""·
'
affidavit in support of a search warrant, and includes omitting facts that are clearly critical to
- .. ' . : - ---· -- .
finding probable cause. Frank's liability attaches when the police and prosecutors manipulate
1 • - ••
material representations, omissions and inferences thatthe issuing judge will draw from. Non-
affiants are also at fault for the material omissions and false and. misleading information
.., . . . ·c
appearing in a warrant application. "Bad faith" "is not simply bad judgment or negligence, but
rather it implies the conscious doing of a wrong because of a dishonest purpose or moral
.
.f.
. _.,. _;·'
obliquity; it contemplates a state of mind affirmatively operating with furtive design or ill will."
Black's Law Dictionary 139 (6'hed. 1990). Franks v Delaware, 438 U.S. 154, 171, 98 S. Ct.
2674, 2684, 57 L. Ed. 2d 667 {1978) (defining bad faith. in the law enforcement context to
Metn&aiidam II'
. _,_.
include "reckless disregard for the truth."); United States v Reilly, 76 F.3d 1271 (2"d Cir. 1995);
United States v DeQuasie, 244 F. Supp. 2d 658 (41h Cir. 2009); United States v Hodson, 543 F.
3d 286 (61h Cir. June 2008); United States v Senak, 477 F.2d 304 (1973, Ca 7 Ind), 477 F.2d
304, cert denied, 414 U.S. 856, 38 L. Ed. 2d 105, 94 S. Ct. 157 (1973); United States v Classic,
313 U.S. 299, 615 S. Ct. 1031, 85 L. Ed. 1368, reh. den., (1941), 314 U.S. 707, 62, S. Ct. 51, 86
L. Ed. 565 (1941); Screws v United States, 325 U.S. 91, 65 S. Ct. 1031, 89 L. Ed. 1495 (1945);
United States v Schafer, 384 F. Supp. 496 (1974, DC Ohio); United States v Flemming, 399 F.
Supp. 77, (1975, ED Mo), rev'd on other grounds, (1975, CAS Mo), 526 F.2d 191, cert. dismd,
423 U.S. 1082, 47 L. Ed. 2d 93, 96 S. Ct. 872 (1976).
It is the responsibility of the trial judge to oversee and maintain the integrity of the trial and
0 ,
r;_r ' · •. ·' ,'I
ensure a defendant receives the~ light to a fair trial, However, the United States Supreme Court
has consistently found a breakdown in the adversarial process, due process, and right to a fair
. -... ,. .. ·-·-. -' .. ,'
trial when the trial judge has a direct financial interest in the outcome of the proceedings. Three
~. ,. -' ,.. _,._ 1 ,-
- ' .. . . . ' '~
Officers of the Court who made statements regarding the integrity of the trial judge, but failed to
1 ' ~ •, ':'
approach the court is uncontroverted evidence supporting this materiality of error. (See Exhibit
',
1, Judicial Misconduct, email attachment from Ariel Payan dated 3/21/14, and Bar Grievances)
. .- .... -·~ --~ · .. ; i-. ·:.
, '
Johnson v United States, 520 U.S. 470, 137 L. Ed. 2d 718, 117 S. Ct. 1544 (1997) (" .. and the
cumulative errors seriously effected the fairness and integrity of the judicial proceedings." Id., at
~
469, 137 L. Ed. 2d 718, 117 S. Ct. 1544. The Court has found that anunbiased decision maker is
not an option in any fair trial, and creates such an error that taints any conviction with
constitution infirmity and requires automatic reversal. Young v United Sates, 315 U.S. 257,
·_;.
258, 259, 86 L. Ed. 832, 834, 835, 62 S. Ct. 510 ("the proper administration of criminal law
. ., .. ,. . ' .
cannot be left merely to the stipulation of the parties." 315 U.S. ;tt 259; Chapman v California,
·,·,--.·j·.- ' n ··
: ··•· ..•.
r,~
386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) (The Supreme Court said whether it appears
·~ · · Meffiei'lif!i;l\i-iH 12'·: ' · · ·
. \ . ·fy· ..
l!l-
. -. i : ( ~
beyond a reasonable doubt that the error complained of did not contribute to the verdict
obtained." Id., at 24, 17 L. Ed. 2d 705, 87 S. Ct. 824; Neder v United States, 527 U.S. 1, 144 L.
Ed. 2d 35, 119 S. Ct. 1827 (1999) ("critical issues of fact where there is the importance of
protecting the right to have a jnry resolve critical issues of fact when there is a special danger
that elected judges may listen to the voices of voters rather than the witnesses."); United States v
Evans, 504 U.S. 255, 274, 112 S. Ct. 1881, 119 L. Ed. 2d 57 (1992); Schlup v Delo, 513 U.S.
298, 130 L. Ed. 2d 808, 115 S. Ct. 851( 1995); Sawyer v Whitley, 505 U.S. 333, 120 L. Ed. 2d
269, 112 S. Ct. 2514 (1992); Tumey v Ohio, 273 U.S. 510, 532, 71 L. Ed. 749, 47 S. Ct. 437, 50
A.L.R. 1243 (1927); Kyles v Whitley, 514 U.S. 419, 436-37, 115 S. Ct. 1555, 131 L. Ed. 2d 490
(1995); Harrington, 131 S. Ct. at 786 (quotingJackson v. Virginia,
.
443 U.S. 307, 332, n. 5, 99 S.
Ct. 2781, 61 L. Ed. 2d 560 (1979); United States v Narisco, 446 F. Supp. 252 (ED Mich. 1977);
- ....
.- ' ''( .
United States v Gainey, 380 U.S. 63, 68, 85 S. Ct. 754, 758, 13 L. Ed. 2d 658 (1965); Holloway v
.. '
Arkansas, 435 U.S. 475, 484, 98 S. Ct. 1173, 1178, 55 L. Ed. 2d 426 (1978); Glasser v United
..
States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1992); Cuyler v Sullivan, 446 U.S. 335, 346,
100 S. Ct. 1708, 1717, 64 L. Ed. 2d 333 (1980); McCormick v United States, 500 U.S. 257, 273,
' .- •. ,_' ---.' ~( c: ·; •
1115 S. Ct. 1807, 114 L. Ed. 2d 307 (1991); United States v Sun-Diamond Growers of Cal, 526
.-·--- .;:;.::.
U.S. 398, 404-405, 119 S. Ct. 1402, 143 L. Ed. 2d 576 (1999); American Bar Association Model
Rules Of Professional Conduct; Texas Disciplinary Rules Of Professional Conduct; Texas
-,. ..., -
Standards On Judicial Conduct.
. ,.,
The United States Supreme Court has long held that the suppression of evidence favorable
to an accused violates due process of law,
,,__ --
regardless of whether the prosecution suppresses
evidence in good or bad faith. According to the Supreme Court, society wins no only when the
., ·: ,-
guilty are convicted, but when criminal trials are fair. And, when the State withholds from a
1 ·· \ · ··• . r ·
criminal defendant evidenc.e that is material to his guilt or punishment, it violates his right to due
· Meiffier!li!aflm B ·
n·
iS'
process of law in violation of the Fourteenth Amendment. That evidence must be favorable to
the accused, because it is exculpatory or impeachable; it must have been suppressed by the State;
'
and prejudice must have ensued. The government denies a defendant the opportunity to present
a meaningful defense when it, directly or through its prosecution team, under its control,
intentionally disposes of potentially exculpable evidence. Brady v. Maryland, 373 U.S. 83, S.
Ct. 1194, 10 L. Ed. 2d 215 (1963). Cone, 129 S. Ct., at 1783; United States v Jernigan, 492 F.3d
1050, 1053-54 (9th Cir. 2007); Kyles v Whitley, 514 U.S. 419, 432-33, 115 S. Ct. 1555, 1565,
131 L. Ed. 2d 490 (1995); UnitedStates v. Bagley, 473 U.S. 667, 674, 105 S. Ct. 3375, 3379, 87
L. Ed. 2d 481 (1985). Valdovinos v McGrath, 598 F. 3d 568 (9'h Cir. 2020); United States v
George Bohl, 25 F.3d 904 (](fhCir. 1994). The denial by a state of any judicial process by
/ I.
which a conviction obtained through the admitted or proved use by the state, knowingly or
•"-'." (' .. ., .·,.,. ;·
unknowingly, of perjured testimony, and the suppression of impeaching evidence is a deprivation
·of liberty without due process of law in violation of the Fourteenth Amendment Moore v
Dempsey, 261 U.S. 86, 67 L. Ed. 543, 43 S. Ct. 265; Frank v Mangum, 237 U.S. 309, 59 L. Ed.
' ..
969, 35 S. Ct. 582 (1915); People v Mooney, 175 Cal. 666, 166 P. 999; People v Mooney, 176
'• - •.. '
..
''<1''
'.
CaJ. 105, 167 P. 696, 177 Cal. 642, 171 P. 690.
• • ~ . ·- •. -~ : !
The Travis County District Attorney Public Integrity Unit cannot, m good standing,
r. -.•. i;
consider itself a "Public Integrity" unit when it violates due process and fails to obey its own
.. ",.- .. , -', .. •• ,·, r, -·
. -
.
,] ;: , ' !
.,
regulations. When the prosecutors leave their role as advocate and function as "investigators,"
~ -- ~--. ( . ··.
defined as, persons who go out and get information, gather evidence, and interview witnesses,
...,._ .. ,
give legal advice in the submission of patently false and misleading statements to a magistrate,
are less than candor to the tribunal, and knowingly, and intentionally participate, and condone
... ' "
transgressions against Court Rules, executive rules, state and federal laws, and connands of the
Texas and United States Constitution's, and who fail to recuse themselves, but use their color of
MemsFa£~·1~.
1(,
. "
authority to isolate them from the adversarial testing process, the cumulative impact, in the
totality of circumstances, create an extreme malfunction in the State criminaljustice system and
manifest the proceeding into a fundamental miscarriage of justice. Gideon v Wainwright, 372
U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963); Brecht v Abrahamson, 507 U.S. 619, 629-30,
113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993); Rosev Clark, 478 U.S. 570, 577-78, 106 S. Ct. 3101,
92 L. Ed. 2d 460 (1986); Johnson v Zerbst, 304 U.S. 458, 468 (1938); Duncan v Louisiana, 391
U.S. 145, 156, 20 L. Ed. 29, 491, 88 S. Ct. 1444 (1968) ("defense against arbitrary law
enforcement is due process of Fourteenth Amendment protection of Sixth Amendment rights to
confrontation."); Walter V Schafer, Federalism and State Criminal Procedure, 70 Harv. L. Rev.
1, 8 (1956); Galvan v Press, 347 U.S. 522, 530, 74 S. Ct. 737, 98 L. Ed. 911 (1954); Spano v
,•
New York, 360 U.S. 315, 320-321, 79 S. Ct. 1202, 3 L. Ed. 2d 1265 (1959); Berger v United
'r. -~
- ' ;
: ..
States, 295 U.S. 78, 55 S. Ct. 629, 79 L. Ed. 1314 (1935); Buckley v Fitzsimmons, 509 U.S. 259,
. .... ,,
' "('
'
.,, ' /·
273, 113 S. Ct. 2606, 125 L. Ed. 2d 209 (1993) ("The actions of a prosecutor are not absolutely
. ' -.' ~
immune -merely they are performed by a prosecutor." "A prosecutor neither is, nor should
~ . ~- . '. .- ..
consider himself to be an advocate before he has probable cause to have anyone arrested." 509
·, .·-
U.S. at 274 ... "lack of probable cause indicates a prosecutor is operating as- an investigator
' ' ,.
instead of an advocate"); Burns, 500 U.S. at 496, Ill S. Ct. at 1944-45 (The Supreme Court
,-,-.· ,. '_.,.
definitely stated that a prosecutor is not entitled to absolute immunity for providing legal advice
' .. , ;· '
to police officers. Burns, 500 U.S. at 492-96); Broam v Bogan, 320 F.3d 1023, 1028 (9th Cir.
' ·- ·:··-, ."•, ---~--:
2003) ("no absolute immunity where prosec'(ltor is functioning as a police officer."); Rehberg v
:~. ·~ ---- .... . ., r~· ... ,
. Paulk, 598 F. 3d 1268 (5th Cir. 2010) ( Prosecutor loses cloak of immunity stepping out and
... ." ,._.. . ., __
performing investigative functions."); Cousins, 5(j8 F. 3d at 1068, citing Buckley, 509 U.S. at
T·- ...
. 273 ("investigative acts" such as "evidence gathering" and "witness interviewing" ... normally
.. :···' .· ,.---
performed by a detective or police officer are not entitled to immunity.); Donahoe v Apaio, 869
. i . . ' ',J>.'[~6fflii~lti: 15 ".
il
F. Supp. 2d 1020 (9th Cjr. 2012) citing Burns, 500 U.S. 478,486, 11l S. Ct. 1934, 114 L. Ed. 2d
547 (1991) ("The nature of the function performed"); Forrester v White, 484 U.S. 219, 229, 108
S. Ct. 538, 98 L. Ed. 2d 555 (1998) ("holding the natu~e of the function performed, not the
identity of the actor who performed it."); Kalina vFletcher, 522 U.S. 118, 127, 18 S. Ct. 502,
139 L. Ed. 2d 471 (1997); Van de Kamp v Goldstein, 555 U.S. 335, 342, 129 S. Ct. 855, 172 L.
Ed. 2d 706 (2009); Botello v Gammick, 413 F.3d 971, 976 (9th Cir. 2005) ("immunity does not
attach to all actions taken by a prosecutor merely by virtue of title ... not to actions better
described as administrative or investigative."); United States v Bowen, U.S. Dist. LEXIS 134434
_(2013); Hadley v Caspari, 1994 U.S. Dist. LEXIS 586, at *3 n. 1 (W.D. Mo. Jan. 19, 1994),
rev;d on other grounds, 36 F.3d 51 (8th Cir. 1994) (quoting Vasquez v Hillery, 474 U.S. 254,
._, .. ··,·-
263 (1986)) An investigator is subject to adversarial cross-examination. When a prosecutor acts
as both the investigator and prosecutor, the criminal proceeding against a defendant is
. "\!\':'
prejudiced.
185 F.3d 407, cert
den (2000) 530 U.S. 1277, 120 S. Ct. 2747, 147 L. Ed. 2d 1010; Imbler v Pachtman, 424 U.S.
409, 47 L. Ed. 128, 96 S. Ct. 984(1976); United States v Dise (1985, CA 3 Pa) 763 F.2d 586,
cert den (1985) 474 U.S. 982, 88 L. Ed. 2d 341, 106 S. Ct. 388; United States v Johnstone (1997,
CA3 NJ) 107 F.3d 200; United States v George Bohl, 25 F.3d 904 (lO'h Cir. 1994); United
States v Martin, 615 F.2d 318, 329 (5th Cir. 1980) ("Recklessness can in some circumstances be
inferred directly from the omission itself'); United States v Pope, 452 F.3d 338 (5th Cir. 2006)
("A reasonably well trained officer in the circumstances at issue would have known the search
was illegal despite the magistrates authorization."); Kingsland v City of Miami, 382 F. 3d. 1220,
.- -·- . ,. . . ' ..... .
. •. 1232 (11th Cir. 2004) ("Falsifying facts to establish probable cause is patently
• - f" • :
unconstitutional."); Whiting v Taylor, 85 F.3d 581, 585 n. 5 (11 1h Cir. 1996); Fikes v City of
,-. - ' .. . ~ . .
' . ·, -- .. --
. Daphine, 79 F.3d 1079 (11th Cir. 1996). Malicious conduct is an intentional pattern to deprive .
. Misuse of official powers acting in outrageous and systematic pattern of harassment, oppression,
.,_,. '' ..
intimidation and bad faith, including cover up and retaliation are all violations of established
. ~- ·- --· -,
Federal law and violations of the Constitution. Connick v Meyers, 461 U.S. 138, 146, 103 S. Ct.
. ..... -- '. ..-.·· ~ , ..
. 1684, 1689, 75 L. Ed. 2d 708 (1983); Rankin, 483 U.S., at 384, 107 S. Ct. at 2896; Morgan v
'!,
.; . r• ''
•Ford, 6 F.3d 750, 754 (11th Cir. 1993), cert deni~d U.S. 114 S. Ct. 2708, 129 L. Ed. 2d 836
-~, .. ·..
•
· (1994); Bryson v City of Waycross, 888 F.2d 1562, 1565 (11 1h Cir. 1989); Morales v Stierheim,
848 F.2d 1145, 1149 (11 1h Cir. 1988), cert denied, 489 U.S. 1013, 109 S. Ct. 1124, 103 L. Ed. 2d
187 (1989).
The relinquishment of a right to remain silent must have been voluntary in the sense that it
.. :. . ,., . !':
· was the product of a free and deliberate choice rather than intimidation, coercion or deception.
·The sole concern of the Fifth Amendment on which Miranda is based is governmental coercion.
· · •Memei'afiEliiffi: 17 ''I
l'f
Coercive police activity is not voluntary within the meaning of the Due Process Clause of the
·Fourteenth Amendment. Miranda v Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966); Colorado v Connelly, 497 U.S. 157, 169, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986); United
States v Mulligan, 178 F.3d 334, 341 (5th Cir. 1999); Lego v Twomey, 404 U.S. 477,483-484,92
S. Ct. 619, 30 L. Ed. 2d 618 (1972).
Under the fruits of the poisonous tree doctrine, "all evidence derived from the exploitation
of an illegal search or seizure must be suppressed." United States v Rivas, 157 F.3d 364, 368 (5 1h
. Cir. 1998). "The deep-rooted feeling that the police must obey the law while enforcing the law;
that in the end life and liberty can be as much endangered from illegal methods used to convict
·those thought to be criminals as from the actual criminals themselves." Spano v New York, 360
U.S. 315, 320-21, 79 S. Ct. 1202, 3 L. Ed. 2d 1265 (1959).
FREE SPEECH
· Official reprisal for protected speech "offends the Constitution because it threatens to inhibit
.' ' . ..
exercise of the protected right." Crawford-El v Britton, 523 U.S. 574, 588, n. 10, 118 S. Ct.
1584, 140 L. Ed. 2d 759 (1998), and the law is settled that as a general matter the First
Amendment prohibits government officials from subjecting an individual to retaliatory actions,
. ···.·.
including criminal prosecutions, for speaking out, id., at 592, 118 S. Ct. 1584, 140 L. Ed. 2d 759;
Perry v Sindermann, 408 U.S. 593, 597, 92S. Ct. 2694, 33 L. Ed. 2d 570 (1972).
'·
INVALID SEARCH WARRANT
' ..
. '' .,
'.
Evidence illegally and unconstitutionally obtain by use of an invalid search warrant must be
suppressed. Mapp v Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684, 84ALR 2d 933, reh
den 368 U.S. 871, 7 L. Ed. 2d 72, 82 S. Ct. 23 (1961); Escobedo v Illinois, 378 U.S. 478, 12 L.
. . -· .
. Ed. 2d 977, 84 S. Ct. 1758 (1964); Ker v California, 374 U.S. 23, 10 L. Ed. 2d 726, 83 s'. Ct.
.·- ·.
1623 (1963); Fahey v Connecticut, 375 U.S. 85, 11 L. Ed. 2d 142, 84 S. Ct. 229 (1963); Beck v
. · Memeffiflffiim lg
-z.D
Ohio, 379 U.S. 89, 13 L. Ed. 2d 142, 84 S. Ct. 223 (1964); Duncan v Louisiana, 391 U.S. 145,
20 L. Ed. 2d 491, 88 S. Ct. 1444, reb den. 392 U.S. 947, 20 L. Ed. 2d 1412, 88 S. Ct. 2270
. (1968); Chimel v California, 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034, reb den 396 U.S.
869, 24 L. Ed. 2d 124, 90S. Ct. 36 (1969); Von Cleefv New Jersey, 395 U.S. 814, 23 L. Ed. 2d
728, 89 S. Ct. 2051 (1969); Franks v Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674
(1978).
PROFESSIONAL MISCONDUCT-PROSECUTOR
The American· Bar Association Model Rnles of Professional Conduct and Texas
Disciplinary Rules of Professional Conduct outline the Special Responsibilities Of A
Prosecutor. In accordance with (lAW) these rules a prosecutor shall, under Rule 3.8 (a) refrain
. ,.. . ,-
·from prosecuting a charge that the prosecutor knows is not supported by probable cause; (d)
make timely disclosure to the defense of all evidence or information known to the prosecutor that
" ..
tends to negate the guilt of the accused or mitigates the offense, and, in connection with
~. '.
sentencing; disclose to the defense and to the tribunal all unprivileged mitigating information
·-- '
known to the prosecutor, except when the prosecutor is relieved of his responsibility by a
protective order of the tribunal; (g) When a prosecutor knows of new, credible and maierial
.~- ...
:evidence creating a reasonable likelihood that the convicted defendant did not commit an offense
., ___ '
of which the defendant was convicted, the prosecutor shall: (1) promptly disclose that evidence
to an appropriate court or authority, and (2)(ii) undertake further investigation, or make
reasonable efforts to cause an investigation, to determine whether the defendant was convicted of
an offense that the defendant did not commit, and (h) When a prosecutor knows of clear and
'·. .. ' . ' -·-··.
convincing evidence establishing that a defendant in the prosecutor's jurisdiction was convicted
of an offense that the defendant did not commit, the prosecutor shall seek to remedy the
conviction. Brady v. Maryland, 373 U.S. 83, S. Ct. 1194, 10 L. Ed. 2d 215 (1963); United States
. Msmetan;EtHm i9 --,,
. • . ' •. ' •. ' . f : - . '~'
v. Burns, 500 U.S. at 496, 111 S. Ct. at 194445; Botello v Gammick, 413, F. 3d 971, 976 (9th
Cir. 2005); Van de. Kamp v Goldstein, 555 U.S. 335, 342, 129 S. Ct. 855, 172 L. Ed. 2d 706
· (2009). Fair play is the essence of due process. Galvan v Press, 347, U.S. 522, 530, ·74 S. Ct.
737, 98 L. Ed. 911 (1954); Giglio v United States, 405 U.S. 150, 154, 92 S. Ct. 763, 31 L. Ed.
2d 104 (1972). Although the state is obliged to prosecute with earnestness and vigor, it is as
much its duty to refrain from improper methods calculated to produce a wrongful conviction as it
is to use ever legitimate means to bring about a just one. Cone v Bell. 129 S. Ct. 1769, 1782, 173
L. Ed. 2d 701 (2009). In a criminal prosecution is not that it shall win, but that justice shall be
done. Berger v. United States, 295 U.S. 78, 88, 79 L. Ed. 1314, 55 S. Ct. 629 (1935).
BRADY VIOLATIONS
'! r ..
', I,' . ' (
The prosecutor or police cannot knowingly~ an~ intentionally, and in bad faith destroy
··.:-. ' ,- . •, ..
or prevent any opportunity for a defendant to exonerate himself with potentially exculpatory
evidence. Brady v. Maryland, 373 U.S. 83, S. Ct. 1194, 10 L. Ed. 2d 215 (1963); California v
i''; ,.· ..-.. ',·,
Trombetta, 467 U.S. 479, 81 L. Ed. 2d 413, 104 S. Ct. 2528 (1984); Arizona v Youngblood, 488
,.
U.S. 51, 102 L. Ed. 2d 281 109 S. Ct. 333 (1988); United States v Cooper, 983 F.2d 928, 931
(9th Cir. 1993); United States v Fletcher, 801 F.2d 1222, 1225 n. 3 (lOth Cir. 1986); United
' •'
States v. Bagley, 473 U.S. 667, 674, 105 S. Ct. 3375, 3379, 87 L. Ed. 2d 481 (1985); United
: . . ,.-,· ,!,, .... ' ('
States v Abello-Silva, 948 F.2d 1168, 1179 (lOth Cir. 1991) (same), cert denied, 113 s; Ct. 107
':·
' ..
. ... ·····
(1992); United States v George Bohl, 25 F.3d 904 (lOth Cir. 1994).
~-
'
PROFESSIONAL MISCONDUCT -COUNSEL
·, ..
'-, , ..
IAW the American Model Rules of Professional Conduct, and Texas Disciplinary Rules
.• 1
of Professional Conduct, Rule 8.02 (a) A lawyer shall not make a statement that the lawyer
' ; - " . ' I
knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications
-- .
::. '··
. .. --.
or integrity of a judge, adjudicatory official or public legal officer, or of a candidate for election
• MeffisraaEl!HR :6Q ·· · · ·
•J.'"t-
or appointment to judicial or legal office. And, (b) A lawyer who is a candidate for judicial
. office shall comply with the applicable provisions of the Texas Code of Judicial Conduct. And,
,_,
Rule 8.03 (a) Except as permitted in paragraphs (c) or (d), a lawyer having knowledge that
another lawyer has committed a violation of applicable rules of professional conduct that raises a
. substantial question as to that lawyers honesty, trustworthiness or fitness as a lawyer in other
respects, shall inform the appropriate disciplinary authority. And, (b) Except as permitted in
paragraphs (c) or (d), a lawyer having knowledge that a judge has committed a violation of
applicable rules of judicial conduct that raises a substantial question as to the judges fitness for
office shall inform the appropriate authority. And, Rule 8.04 (a) A lawyer shall not: (1) violate
·these rules, knowingly assist or induce another to do so, or do so through the acts of another,
:. , -,
···..
whether or not such violation occurred in the course of a client-lawyer relationship. And, (3)
~ ··. \' - ·. .. ·' ,· . ·., .····-· ,··
engage in conduct involving dishonesty, fraud, deceit or misrepresentation. And, (5) state or
., ..
imply an· ability to influence improperly a government agency or official. As Officers of the
·- :·,'' l.
Court, their statements and conduct can only be taken as "true". There can be no trial strategy
...... l \ •..
justification when the conduct was so ill chosen it permeated the entire trial with obvious
unfairness. Seigfried, v Greer, 372 Fed. Appx. 536 (5th Cir. 2010).
There is no ethical or responsible "trial strategy" in intentional deception and
misrepresentation of the expected conduct of a trial judge or the trial counsel to throw away a
•. , .·.- . . f,:,·
· ...
clients rights to a fully engaged and meaningful defense and fair trial. United States v. Grieg,
'._,._ ..
967 F.2d 1018 (5th Cir 1992); ("While we recognize that a trial court does not always have an
,.. ,;.-, ' ,.r:..,,.
affirmative duty to inquire into the possibility of a conflict of interest, it does have a duty to
·.... , ' ' ..
· conduct a hearing once it has been alerted and certainly when it knows of the existence of an
...... \' .
actual conflict of interest."). Armstrong v. State, 573 So. 2d 1329, 1335 (Miss. 1990). ("As an
.,.. . -,-.. -,
~- 1\.fenl8ntheii-uh 21· ·:· ·
actual conflict which adversely affected counsel's performance was shown, the trial court
reasonably should have known the conflict existed.")
JUDICIAL MISCONDUCT
It is the responsibility of the trial judge to oversee and maintain the integrity of the trial and
ensure a defendant receives their right to a fair trial. However, the United States Supreme Court
has consistently found a breakdown in the adversarial process, due process, and right to a fair
trial when the trial judge has a direct financial interest in the outcome of the proceedings.
Johnson v United States, 520 U.S. 470, 137 L. Ed. 2d 718, 117 S. Ct. 1544 (1997) (" .. and the
cumulative errors seriously effected the fairness and integrity of thejudicial proceedings." !d., at
469, 137 L. Ed. 2d 718, 117 S. Ct. 1544. The CoUrt has found that an unbiased decision maker is
not an option in any fair trial, and creates such an error that taints any conviction with
constitution infirmity and requires automatic reversal. Young v United Sates, 315 U.S. 257, 258,
259, 86 L. Ed. 832, 834, 835, 62 S. Ct. 510 ("the proper administration of criminal law cannot be
left merely to the stipulation of the parties." 315 U.S. at 259; Chapman v California, 386 U.S.
,,_ -,-,' .....
18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) (The Supreme Court said whether it appears beyond a
reasonable doubt that the error complained of did not contribute to the verdict obtained." !d., at
. ·'· ..
24, 17 L. Ed. 2d 705, 87 S. Ct. 824; Neder v United States, 527 U.S. 1, 144 L. Ed. 2d 35, 119 S.
. .. - . -
Ct. 1827 (1999) ("critical issues of fact where there is the importance of protecting the right to
have a jury resolve critical issue_s of fact ~hen there is a special danger that elected judges may
listen to the voices of voters rather than the witnesses."); United States v Evans, 504 U.S. 255,
' .. ,
· 274, 112 S. Ct. 1881, 119 L. Ed. 2d 57 (1992); Schlup v Delo, 513 U.S. 298, 130 L. Ed. 2d 808,
115 S. Ct. 851( 1995); Sawyer v Whitley, 505 U.S. 333, 120 L. Ed. 2d 269, 112 S. Ct. 2514
., ....., {' . ,. . ,'I .
(1992); Tumey v Ohio, 273 U.S. 510, 532, 71 L. Ed. 749, 47
.. ,
S. Ct. 437, 50 A.L.R. 1243 (1927);
,_,.
Kyles v Whitley, 514 U.S. 419, 436-37, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995); Harrington,
· . M8me'F!Hio€lt:iH! 22
'1-""/
131 S. Ct. at 786 (quoting Jackson v Virginia, 443 U.S. 307, 332, n. 5, 99 S. Ct. 2781, 61 L. Ed.
2d 560 (1979); United States v Narisco, 446 F. Supp. 252 (ED Mich. 1977); United States v
Gainey, 380 U.S. 63, 68, 85 S. Ct. 754, 758, 13 L. Ed. 2d 658 (1965); Holloway vArkansas, 435
U.S. 475, 484, 98 S. Ct. 1173, 1178, 55 L. Ed. 2d 426 (1978);Glasser v United States, 315 U.S.
60, 62 S. Ct. 457, 86L. Ed. 680 (1992); Cuyler v Sullivan, 446 U.S. 335, 346, 100 S. Ct. 1708,
1717, 64 L. Ed. 2d 333 (1980); McCormick v United States, 500 U.S. 257, 273, 1115 S. Ct. 1807,
114 L. Ed. 2d 307 (1991); United States v Sun-Diamond Growers of Cal, 526 U.S. 398, 404-405,
119 S. Ct. 1402, 143 L. Ed. 2d 576 (1999); American Bar Association Model Rules Of
Professional Conduct; Texas Disciplinary Rules Of Professional Conduct; Texas Standards On
Judicial Conduct.
r.· l ....
The Supreme Court has consistently found a breakdown in the adversarial process when
the judge has a direct financial interest in the outcome of the proceedings. Tumey v. Ohio, 273
- ' .. - -. [" ~.
U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749, 5 Ohio Law. Abs. 159, 5 Ohio Law. Abs. 185, 25 Ohio L.
.'
Rep. 236. "His conduct will be controlled by the terms of the promise or the undertaking."
McCormick v United States, 500 U.S. 257, 273, 111 S. Ct. 1807, 114 L. Ed. 2d 307 (1991);
. '·-'., • f.
····-{ ..
United States v Brewster, 408 U.S. 501, 526, 92 S. Ct. 2531, 33 L. Ed. 2d 507 (1972) ("The
"' ,;
'·
illegal conduct is taking or agreeing to take money for a promise to act in a certain way."). (" ...
. . . . ., '
-'
receipt of something of value, "in exchange for an official act." United States v. Sun-Diamond
Growers of Cal., 526 U.S. 398, 404-05, 119 S. Ct. 1402, 143 L. Ed. 2d 576 (1999). Neder v.
United States, 527 U.S. 1,8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (the presence of a biased
.. ·.::.,
decision-maker is a structural error subject to automatic reversal); Edwards v. Balisok, 520 U.S .
. •,
641, 647, 117 S. Ct. 1584, 137 L. Ed. 2d 906 (1997) ("A criminal defendant tried by a partial
•• r .,_ '
judge is entitled to have his conviction set aside, no matter how strong the evidence against
' ' ~
him."); Brecht v Abrahamson, 507 U.S. 619, 629-30, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993)
· Msmi:fflt.Hcittm. zei>
'2.'5
•::
(Trial errors that occur during the presentation of the case to the jury are subject to harmless-
error analysis. "At the other end of the spectrum of constitutional errors lies "structural defects"
in the constitution of the trial mechanism, which defy analysis by the "harmless-error" standard
and require automatic reversal." ld.); Johnson v United States, 520 U.S. 461, 469 117 S. Ct.
1544, 137 L. Ed. 2d 718 (1997); Rose v Clark, 478 U.S. 570, 577-78, 106 S. Ct. 3101, 92 L. Ed.
2d 460 (1986) ("If the defendant had counsel and was tried by an impartial adjudicator, there is a
strong presumption that any other errors that may have occurred are subject to harmless-error
analysis."); Tumey 273 U.S. at 523. 'It is sufficient if the public official understood he or she
was expected to exercise some influence on the payer's behalf as the opportunities arose."
United States v. Abbey, 560 F.3d 513, 518 (6th Cir. 2009); United States v Jefferson, 674 F. 3d
, ....
332, 358~59 (4th Cir. 2012); Ryan v United States, 688 F.3d 845, 852 (7th Cir. 2012); United
. '
States v Ganim, 510 F.3d 134, 147 (2nd Cir. 2007). The Texas Code of Judicial Conduct,
Canon 1: Upholding the lnt~grity and Independence of the Judiciary states, "An
independent and honorable judiciary is indispensable to the justice of our society. A judge
should participate in establishing, maintaining, and enforcing high standards of conduct, and
personally observe those standards so that the integrity and independence of the judiciary is
c.· .... -- ' •, __ ,,_._ - . . . . . .! • ' ··,
preserved." Canon 2: Avoiding Impropriety and the Appearance of Impropriety in All of
''1''"
the Judge's Activities (A.) states, A judge shall comply with the law and should act at all times
in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
And, (B) A judge shall not lend the prestige of judicial office to advance the private interests of
~-'
c
.
the judge. Cannon 3(A): Performing the Duties .,of, ..Judicial
,
Office Impartially and Diligently
__
states, the judicial duties of a judge take precedence over all the judge's other activities. Cannon
3(B)(2) states, a judge should be faithful to the law and maintain professional competence in it.
A judge shall not be swayed by partisan interests, public clamor of fear of criticism." And,
.. · - ·Mem6fflfithtm 2:<1-
-J..'-'
. ~ . ··- ....
'.
Canon 5: Refraining from Inappropriate PolitiCal Activity (1) A judge or judicial candidate
shall not: (i) make pledges or promises of conduct in office regarding pending .or impending
cases, specific classes of cases, specific classes of litigants, or specific propositions of law that
would suggest to a reasonable person that the judge is predisposed to a probable decision in cases
within the scope of the pledge.
The integrity of the judiciary is to refrain from conduct, which result in her making
decisions contrary to and involved umeasonable application of clearly established state and
federal laws as determined by both Supreme Courts, and the Constitutions of both Texas, and the
United States.
~-. ·.
. ·'
~-.--.: . . '
ARGUMENT·
Travis County Sheriff's Deputy, Toby Miller, a person of public trust, who made sure he
was identified as a "Senior Deputy Sheriff," who was caught by .Applicant falsifying time sheets
on a Federally funded energy grant, that was under the constant oversight of the U.S. Department
of Energy, from the issuance of the announcement
. .
of the Stimulus
. Program until Applicant was
-.. ·,
arrested on October 11, 2011.
Miller, as a Senior Deputy Sheriff, knows that making patently false or misleading
.. '· . ·... ... ,. / ; ' ,.
statements, material omissions and providing only personal beliefs, and assumptions, twisted for
self-serving needs, to establish probable cause, violated criminal laws and constitutional rights.
In this case it was Miller who controlled most of the information his personal friend, Travis
. ~ . . . ' ..
County District Attorney Investigator Lori Carter, and Travis County Assistant District Attorney,
Holly Taylor, relied upon, but failed to verify,
.. ,.
or confirm, even
. .
after being told to their faces, by
• 1:, • ; ·. :: ·:. :._ . . ., .
the Jones town Chief of Police, while they were out "investigating" the case, (Holly Taylor is
seen in a reflective photo, that clearly identifies her by her dark hair (Carter is a bleached
M6ffiel'!ffl4:tm '25
'27
blonde), wedding ring and jewelry (that she wore to conrt daily) taking the picture over by the
Waste Water Treatment Plant), that Miller was a suspect in an ongoing criminal investigation for
multiple felonies, including Attempted Murder and the sabotage of Wind Energy Systems in the
very case they were working on. They were told there was no evidence of a crime on both
Applicant and on the part of SECO employee, Mary
'
J;b Woodall, by Martin Cano, Chief of
(,
Investigations, Texas Comptroller, and also by their OWn forensic analyst, Robin Timmins, all
months prior to securing the search warrants. (See Exhibit 5, 299th District Court Records, D-1-
DC-13-904021-EXH-VOLUMES 1-21, COURT REPORTERS RECORD, D-1-DC-13-
904201_395 CLERKS RECORD, Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY
(A-11-CR-647(1)-LY) 2255 Motion to Vacate, Supplemental Report Field Observations-Chief
Stetar attachment, and Exhibit 2, Promissory Notes and bank check faces).
Miller knew Applicant was a 29 year, decorated, and Honorably Retired Chief of Police
and Military Veteran. Miller knew Applicant had created and developed a ballistic shield and
, custom furniture company back in 1998 and was involved with that company until 2006; was
involved in grants and research and development projects with the Department of Defense since
1993; the shield company was a Sole Source provid~r since 1998 and had been awarded
· -,iL Ur"- ·
successful contracts with the Department of Defense, FBI; ut
Marshal's, U.S. Secret Service,
,-~ r': · -·r
U.S. Department of State, Diplomatic Security and international police organizations, including
Hong Kong, Singapore, Germany, Canada and Japan; Miller knew, through reading Applicant's
Pardon Petition, that was hand carried to the White House in December of 2008, and not denied,
;.,;
but simply turned away, because a fellow named Isaac Toussie (See Exhibit 2, photos and
Exhibit 4, Pardon Petition and Toussie articles) made the national news when it was alleged his
father paid approximately $28,000 to get his son a pardon; that Applicant, prior to becoming a
Chief of Police, aggressively investigated bad cops and would have no qualms, conviction or not,
MeHter!ltlffiml: 'Q,~ ,
-z.'b
,.'"
·-·-;-. •'
about putting Miller, Cook and others behind bars for theit'criminal conduct. And, that Applicant
was angry specifically at the vindictive prosecutorial and government misconduct involving
blatant lies from Houston AUSA, Jimmy Kitchens and theATF regarding ATF and FBI roles in
the training in Houston where Applicant, under the color of authority, provided authorized less
lethal device (flash bangs) training aids for sanctioned, and accredited law enforcement training,
and the Govermnent's vindictive prosecution ("a present from the FBF') of Applicant in
. covering up the negligent conduct of FBI Supervisory Special Agent Mark Tilton, with the help
of his friend, Austin FBI Supervisory Agent Charlie Rasriet,_, in his failures regarding Applicant's
('
catching a Russian Spy in the Houston Ship Channel in 2001, and Tilton's failure to resolve the
Gene Williams issue, as the FBI SWAT Team Leader, before Williams blew the foot off of a co-
worker while horse playing. Miller knew Applicant was actively engaged in continuing his quest
to get a pardon; is not a criminally minded person; and was actively engaged in the development
of the Wind Energy business to turn it into an international business. (See Exhibit 4, Pardon
Petition, Charlie Malouff Resume, Charlie Malouff Commendation Letters and Letters of
Appreciation, Goeff Ross letter, Gene Williams Motion and United States v Vest, and Exhibit 1,
"Panama presentation" and Howard Reed Affidavit).
r :·
Not only did Miller and McCoy know Applicants background, but Applicant provided CM
Energies employees, Lance Wedell, Justin Shepherd, Aaron Knapek, John Karlson, and Paul
A• ,. •
Kuwumara with a copy of his resume so they would know Applicant's background as it applied
to his knowledge of the workings of the Government. Nb where in Applicant's resume or during
any time in association with these persons, did Applicant ever say he worked for the CIA. In
addition, Miller, McCoy, Cook and the employees all knew Applicant was proud of his
background and wore his medals and defining patches on
,..
his motorcycle vest in the employees
presence, almost daily from the time he started with Shepherd and Eric Graham's, University of
Met!iel'lll.Tclt!Hi 29
~"l
Texas, class projects in 2008, until Applicant was arrestt!d on October 11, 2011. (See Exhibit 2,
Applicants motorcycle vest and patches photo and, Exhibit' 1, Charlie Malouff Resume).
Miller, McCoy, Karlson, Wedell, Shepherd, Cook, Graham, Knapek, other CM Energies
employees and Deane Armstrong, Jones town Mayor, -and Dan Dodson, Jonestown City
Administrator, knew Applicant was the owner of the Intellectual Property and patent's pending
design of the Wind Energy System. Miller knew all employees, including himself signed not
only a Confidentiality and Non-Compete Agreement, but also a Trade Secrets Confidentiality
Agreement as well. Miller, McCoy, Karlson and others all knew Applicant was protective of the
technology that gave him an advantage over others from the studies and development of the
Systems and were well aware of the large number 'of patent and Intellectual Property
'
infringement cases filed in Federal Court by American companies every year .
.;:_ . '
Miller, McCoy, Karlson and others knew they were not owners of the technology, had no
,--
rights to any of the Intellectual Property, nor were they members CM Energies International,
LLC. Miller, Karlson and others knew McCoy was president the majority shareholder to CM
·.r· !
Alternative Energies, Inc., a Texas Corporation where they were part-time employees, and they
had no shares, and no authority to speak or act on behalf of the Company when they tried their
"secret" takeover of the Wind Project. "A trade secret is -any formula, pattern, device or
compilation of information which is used in one's business, and which gives the owner an
opportunity to obtain and advantage over competitors who do not know or use it." N. At.
'q . ~:·i
Instruments, Inc. v Haber, 188 F.3d 38, 44 (2nd Cir. 1999). Miller, McCoy, Karlson, Guevara
and others were all informed by Applicant that at any given time in the United States there are
. ',.,. ...
over 1600 patent infringement cases on file in the Federal courts, and they all knew the extent
and measures Applicant took to guard the secrecy of the intricacies of the Systems. They knew
Applicant was working directly with Michael Guevara, CM Energies General Counsel, and
MBH!ei'aHE!-effi· 28
"$0
Robert McLauchan, CM Energies Intellectual Property Patent Attorney regarding the protection
of the designs and commercialization. They knew between 2009 and 2010, Applicant taught
them the value of the information to the business and the competitors. They knew Applicant
spent every day for several years developing the information and was out at the University of
Texas, JJ Pickle Research Center every day, all day long, with student projects and conducting
his own independent testing and study's. And, more importantly, they were taught by Applicant,
once in someone's possession, the ease or difficulty with which the information could be
properly or improperly acquired or duplicated by others. Not only were they taught this, but they
used it against Applicant in their attempt to take control of Applicant's Intellectual Property.
(See Exhibit 5, 299th District Court Records, D-1-DC-13-904021-EXH-VOLUMES 1-27,
COURT REPORTERS RECORD, D-1-DC-13-904201_395 CLERKS RECORD, Exhibit 6,
Charlie Malouf! v. United States, A-13-CV-572LY (A-11-CR-647(1)-LY) 2255 Motion to
,., .·
Vacate, Secret Meeting attachment). They knew the Grant was specifically written for
Applicant's Wind Energy Systems. They also admitted, they had not read the Grant or any of
.. . I
the Code of Federal Regulations required to be in compliance with the Grant. (See Exhibit 5,
299th District Court Records, D-1-DC-13-904021-EXH-VOLUMES 1-27, COURT
REPORTERS RECORD,' D-1-DC-13-904201_395, pages 47-50 CLERKS RECORD, and
Exhibit 6, Charlie Malouf! v. United States, A-13-CV-572LY (A-11-CR-647(1)-LY) 2255
'"\' .
Motion to Vacate). They knew while Guevara attended their "secret" meeting with Dan Dodson,
City Attorney, who also knew Applicant was working with Guevara and McLauchlan, Guevara
.. ~ .!' ., . ! •••••
left their little group after seeing the. falsified time sheets, and Miller's email admitting to
.. ,'. __ ··-·-"
·,. i :,
breaking into City Hall and wishes to do Applicant harm. Guevara himself was called a "traitor"
::.,·.· ,-'
and other things by Miller after he disassociated himself with Miller, Karlson Cook, Graham,
McCoy and the others. In addition, Applicant and Guevara were sent malicious emails
.-Meffi:eit\f!Effiih 29
. . ??I.. ,
containing viruses by Miller. (See Exhibit 1, Applicant's Yahoo email screen sheets with three
unopened emails containing viruses sent from Miller). Applicant got the first virus email from
Miller shortly after the Wind Energy Systems were sabotaged and it was detected by Kaspersky
Anti-Virus. The email was addressed to Applicant and to Mike Guevara. Applicant immediately
notified Guevara and instructed him not to open any emails from Miller.
While McCoy was the president and majority shareholder of CM Alternative Energies,
. Inc., and was licensed to market and manufacture the Wind Energy Systems, her participation in
the illegal take over was the wrong way to address contractual and corporate responsibilities.
She compounded this when she told Applicant she would sever the parent-child relationship if he
pursued terminating Miller, Cook, Graham, K11rlson, and others, three times and again a month
i 1 ' • r ••• •• '
later.
' .··
On July 15, 2011, Travis County Assistant District Attorney, and prosecutor of the case,
. ,\.
Holly Taylor, left her role as a prosecutor, and thereafter engaged in the role of "investigator"
gathering evidence, proven by a reflective photo of Taylor taking photographs, interviewing
witnesses, getting facts and information, giving legal advice to police officers, and clearly
functioning as an investigator. (See Exhibit 6, Charlie Malouf! v. United States, A-13-CV-
572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate, Supplemental Report Field Observations-
·' '''')
Chief Stetar attachment, and Exhibit 2, photos of Taylor photographing evidence). At that time,
Travis County District Attorney Investigator, Lori Carter, and Taylor clearly lacked probable
cause and Taylor was not in a position to claim to be an advocate.
Taylor, as the prosecutor, violated the American Bar Association Model Rules of
Professional Conduct and the Texas Disciplinary Rules of Professional Conduct, Rule 3.03(a)(l),
·... :"'L:·: .• • ··•'··
(3j(b)(c)(d) when she repeatedly said she did know she was withholding Brady material and
offered, through the advice and counsel to Carter, and in bad faith, and assisted Carter in making
..
patently false and misleading statements, and coaching her to make material omissions to the
magistrate to secure multiple search warrants. (See Exhibit 5, 299th District Court Records, D-1-
DC-13-904021-EXH-VOLUMES 1-27, COURT REPORTERS RECORD, D-1-DC-13-
904201_395 CLERKS RECORD, and Exhibit 6, Charlie Malouffv. United States, A-13-CV-
572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate).
Taylor ignored her duty of candor to the tribunal, as prosecutors may not, "in an ex parte
proceeding, fail to disclose to the tribunal an unprivileged fact which the lawyer reasonably
believes should be known by that entity for it to make an informed decision." And Rule 8.04
(a)(1),(2),(4) when she herself, and in the assistance of another, Lori Carter, and other
prosecutors involved in this case, including Susan Oswalt and Greg Cox, knowingly violated
these Rules, and knowingly and intentionally engaged in conduct involving dishonesty, deceit,
and misrepresentation when they submitted patently false, and misleading information, and
. :) ~ ..
knowingly, and intentionally omitted material exculpatory information to the magistrate in the
presentation of the search warrant affidavit to keep that magistrate from making an informed
.. < l ·•. i ,,
decision. And American Bar Association Rules of Professional Conduct Rule 3.8 Special
Responsibilities Of A Prosecutor (a) refrain from prosecuting a .charge that the prosecutor
,..
knows is not supported by probable cause; (d) make timely disclosure to the defense of all
evidence or information known to the prosecutor that tends to negate the guilt of the accused or
mitigates the offense, and, in connection with sentencing, disclose to the defense and to the
tribunal all unprivileged mitigating information known to the prosecutor, except when the
. ( ''
prosecutor is relieved of his responsibility by a protective order of the tribunal; (g) When a
prosecutor knows of new, credible and material evidence creating a reasonable likelihood that
'. ,;,,
the convicted defendant did not commit an offense of which the defendant was convicted, the
prosecutor shall: (1) promptly disclose that evidence to an appropriate court or authority, and
•MemElfilflatufi'B i .
-~
(2)(ii) undertake further investigation, or make reasonable efforts to cause an investigation, to
determine whether the defendant was convicted of an offense that the defendant did not commit,
and (h) When a prosecutor knows of clear and convincing evidence establishing that a defendant
in the prosecutor's jurisdiction was convicted of an offense that the defendant did not commit,
the prosecutor shall seek to remedy the conviction. Holly Taylor knew when she was functioning
as an "investigator" when she was caught in a reflective photo taking the picture over by the
Waste Water Treatment Plant before Jonestown Chief of Police; John Stetar caught them
"investigating" in his jurisdiction, and also having been told by officials from other government
organizations, who were more familiar with the policies, procedures and contractual obligations
under the Grant, and law, and who knew that further investigation, such as, talking to Applicant,
or any of Applicant's employees, other than the ones w?o were fired, would result in neither the
Applicant or Mary Jo Woodall committing an offense, and being innocent of the allegations, but
,. ··-·... ,. ; \
because of her pride, maliciously continued to violate Applicant's constitutional rights.
Taylor and Carter singled out Applicant, who at the time of the submission of the Grant,
. .,
was not an employee of CM Alternative Energies, Inc., the subcontractor, or the City of
, ,
Jonestown, the Grantee, and who had not signed ~my government document. Taylor and Carter
...,,.
knew the City of Jonestown conducted its own independent due diligence and the Mayor, Deane
._.,, .. ., ., .. -, .., .
Armstrong, knowingly and freely signed the Grant on behalf ofthe City. (See Exhibit 5, 299th
District Court Records, D-l-DC-13-904021-EXH-VOLUMES 1-27, COURT REPORTERS
:··· .
RECORD, D-1-DC-13-904201_395 CLERKS RECORD, and Exhibit 6, Charlie Malouf! v.
United States, A-13-CV-572LY (A-ll~CR-647(1)-LY) 2255 Motion to Vacate).
Between April 2012 and August 2013, Travis County 299th District Court Judge, Karen
Sage, heard numerous testimonies, and examined numerous pieces of material exculpatory
. ·.. " •,, -'
evidence. Sage heard numerous arguments of ongoing Brady violations and selective and
·Meffief!ifl'ffi:!Hi 32
-?t.-1
,- .. .,..
. ,! ' -
vindictive prosecution. (See Exhibit 5, 299th District Court Records, D-1-DC-13-904021-EXH-
VOLUMES 1-27, COURT REPORTERS RECORD, D-1-DC-13-904201_395, pages 183-326
CLERKS RECORD, and Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY (A-11-
CR-647(1)-LY) 2255 Motion to Vacate, Supplemental Report). Sage heard arguments that there
were three standing Wind Energy Systems, one in Taylor, Texas and two in the City of
Jonestown (see Exhibit 2, photos) that an exculpatory and exonerating 20 Kilowatt generator
could have been put in and connected to the grid, and demonstrated that the Wind Energy
Systems worked as proposed, but the City of Jonestown and the Travis County District Attorney
maliciously took a metal cutting saw and cut them down and destroyed them, so that there was
no physical way for Applicant to prove his innocence, a violation of Brady. (See Exhibit 5, 299th
·~:· .,,,, .·. - , ..
District Court Records, D-1-DC-13-904021-EXH-VOLUMES 1-27, COURT REPORTERS
, RECORD, and D-1-DC-13-904201_395, pages 183-326 CLERKS RECORD). Evidence is
. ;"-. ..
"material" within the meaning of Brady when there is a reasonable probability that had the
evidence been disclosed, the result of the proceeding would have been different. Brady v.
Maryland, 373 U.S. 83, S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Cone, 129 S. Ct., at 1783; United
States v Jernigan, 492 F.3d 1050, 1053-54 (9th Cir. 2007); Kyles v Whitley, 514 U.S. 419, 432-
33, 115 S. Ct. 1555, 1565, 131 L. Ed. 2d 490 (1995); United States v. Bagley, 473 U.S. 667, 674,
·' - ·····
105 S. Ct. 3375, 3379, 87 L. Ed. 2d 481 (1985). Valdovinos v McGrath, 598 F. 3d 568 (9th Cir.
. , ,·.,.
2020); United States v George Bohl, 25 F.3d 904 (lOth Cir. 1994); Moore v Dempsey, 261 U.S.
, -r··
86, 67 L. Ed. 543, 43 S. Ct. 265; Frank v Mangum, 237 U.S. 309, 59 L. Ed. 969, 35 S. Ct. 582;
- 1 '~. • ' ,--,' ,.
People v Mooney, 175 Cal. 666 .,P. 999; People v Mooney,
__ '". -.. ,
176 Cal. 105, 167 P. 696, 177 Cal.
171 P. 690.
Taylor, Carter and Miller all allege Applicant committed fraud, creating Wind Energy
!" ·--' ,-
Systems that didn't work, even though there is ample proof the full size prototypes at The
Meffi6ffitlditin jJ ·.:
... -... ,..
University of Texas, JJ Pickle Research Center did, and the supervising professor, Ron Stearman
(see Exhibit 1, Stearman letter and email to Mary Jo Woodall and Howard Reed Affidavit) said
they worked and were ready for commercialization, but they knowingly and intentionally, and in
bad faith destroyed these distinct and exclusive design Systems depriving Applicant of any
opportunity to exonerate himself with this potentially exculpatory evidence, and thus prejudiced
Applicant. California v Trombetta, 467 U.S. 479, 81 L. Ed. 2d 413, 104 S. Ct. 2528 (1984);
Arizona v Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281 109 S. Ct. 333 (1988); United States v
Cooper, 983 F.2d 928, 931 (9 1h Cir. 1993); United States v Fletcher, 801 F.2d 1222, 1225 n. 3
(10'h Cir. 1986); United States v. Bagley, 473 U.S. 667, 674, 105 S. Ct. 3375, 3379, 87 L. Ed. 2d
481 (1985); United States v Abello-Silva, 948 F.2d 1168, 1179 (lO'h Cir. 1991) (same), cert
.. ·...., ·;···
denied, 113 S. Ct. 107 (1992); United States v George Bohl, 25 F.3d 904 (lOth Cir. 1994). (See
. ~ ,.1 '''
Exhibit 5, 299th District Court Records, D-1-DC-13-904021-EXH-VOLUMES 1-27, COURT
REPORTERS RECORD, D-1-DC-13-904201_395, pages 183-326 CLERKS RECORD, and
Exhibit 6, Charlie Malouf! v. United States, A-13-CV-572LY (A-11-CR-647(1)-LY) 2255
" . ..
. -..--,.
Motion to Vacate, and Exhibit 1, Jonestown City Couneil Agendas and Minutes).
Sage heard testimony from the complainant, Travis County Deputy Sheriff, Toby Miller, a
)
17-year deputy with the Travis County Sheriff's Office, who began his complaints ensuring he
>,.
was identified as a Senior Deputy Sheriff (See 299th District Court Records, D" 1-DC-13-
, .. . . ·- (. .. - ~
904021-EXH-VOLUME027, pages 537-558), admitting to falsifying payroll time sheets to a
:I ' - .. , i ·
Federal energy grant, and his Travis County Sheriffs Office time sheets. Sage heard Miller
-:' '. r.: ,
admit he never read the Grant, or any of the Code of Federal Regulations associated with the
. .
mandatory NEPA Environmental Assessment (EA) and that he had no idea what the Grant
~ .. -~ ( . -- . -
requirements were, or what the contractual obligations of CM Alternative Energies, Inc., the sub-
contractor to the Grantee, the City of Jonestown was. Additionally, Miller testified to using the
·.Meffiel'iffie:li:l~ 3 4 •• .·
?'-
National Crime Information Center (NCIC) computer, his Sheriff's uniform, and motorcycle for
personal gain; illegally entering into a government building that he had no business in after
closing; and his leadership role in trying to take away protected technology of another, and his
trying to take over a wind energy company that he had no ownership control in, and when he
failed, he used his position of authority to cover his crimes and initiate criminal prosecution
against Applicant and co-defendant Mary Jo Woodall. (See Exhibit 5, 299th District Court
Records, D-1-DC-13-904021-EXH-VOLUMES 8, pages 193-201 and 15, pages 16-22 COURT
REPORTERS RECORD, D-1-DC-13-904201_395, pages 183-326 CLERKS RECORD). In
addition, Sage heard Miller initiated his complaints the day he found out, by the corporate
attomey, Michael Guevara, Applicant caught Miller falsifying time sheets, and had put him
under criminal investigation with the Grantee, the City of Jonestown. Miller admitted, under
'.
':•
oath, to conducting an investigation to build the predicate criminal case against Applicant. Miller
-- '. ~
did this under the color of authority, for personal gain, _and not authorized by either the Travis
' . '·-. ' . ; ·_' ~ '/ ' .
County Sheriff's Office or the Travis County District Attomey' s Office. (See Exhibit 5, 299th
District Court Records, D-1-DC-13-904021-EXH-VOLUMES 1-27, COURT REPORTERS
' -' . .
RECORD, D-1-DC-13-904201_395, pages 183-326 CLERKS RECORD, and Exhibit 6, Charlie
:c\! , - ,-.--
Malouffv. United States, A-13-CV-572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate).
. .. .'
Other significant testimony was from Travis County District Attomey Investigator, Lori
Carter, who admitted, under oath, one reason she targeted Applicant was for his comments, "If I
tell you I will have to kill you" made not as an assertion of fact, but in a popular sense, common
: ... ··:··,·····
in public opinion, used in a joking manner, not obscene, not defamatory, not words tantamount
., . ' . .
to an act otherwise criminal, not an impairment of some other constitutional right, not an
. incitement to lawless action, not calculated or likely to bring about imminent harm, and protected
,.....,
by the First Amendment of the Constitution. And, "I love my country, I despise my government"
· Mem:efftflffiiffi 3§
?7
also made not as an assertion of fact, but in a popular sense, common in public opinion, not
obscene, not defamatory, not words tantamount to an act otherwise criminal, not an impairment
of some other constitutional right, not an incitement to lawless action, not calculated or likely to
bring about imminent harm and protected by the First Amendment of the Constitution, but
twisted by Carter as "anti-government statements" during her investigation to bolster anger and
animosity towards Applicant. (See Exhibit 5, 299th District Court Records, D-1-DC-13-904021-
EXH-VOLUMES 16-19, COURT REPORTERS RECORD, D-1-DC-13-904201_395 CLERKS
RECORD, and Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY (A-11-CR-647(1)-
LY) 2255 Motion to Vacate).
Not only did Carter admit to this in Applicant's trial, but Captain Gleason, Williamson
County Sheriff's Department SWAT Commander, who .conducted the raid on Applicant's co-
defendant's home on October 11th, 2011, testified to this in a hearing for Applicant's co-
. , .. - ,., -, .. :·.-·
defendant in June of 2012.
. ,. ·'-_ ' ..
Carter admitted, under oath, to violating Applicants Fifth Amendment right to remain
silent when in custody. (See Exhibit 5, Court Reporter's Record Travis D-1-DC-13-904021-
:.(~:-: .- . ·._· < --, . . , , . \ ....- '.
EXH-VOL 19, pages 85-120, and Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY
. . . . . ,-!_ _.,-
(A-11-CR-647(1)-LY) 2255 Motion to Vacate, Supplemental Report).
. '
Carter admitted to being told by numerous key personnel from the Texas Comptroller, and
the Travis County District Attorney's Forensic Auditor, months before the search warrant
affidavits were written, there was no evidence a crime had been committed. (See Exhibit 5,
299th District Court Records, D-1-DC-13-904021-EXH-VOLUMES 12 and 19, COURT
REPORTERS RECORD, D-1-DC-13-904201_395 CLERKS RECORD, and Exhibit 6, Charlie
Malouf! v. United States, A-13-CV-572LY
'
(A-11-CR-647(1)-LY)
,. _,.-
Petitioner's Supplement _____
Response Exhibit 4)
Mlffl'fe>t ~:tftdt!rit Ei6 -' • • •
1~
_· .. : ....
In a separate hearing for Mary Jo Woodall, Sage stated that she believed the "inappropriate
relationship" between Applicant and Woodall was simply a sexual relationship between long
time friends. (See Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY (A-11-CR-
647(1)-L Y) Petitioner's Supplemental Response Exhibit 2)
Sage heard the testimonies of these key personnel and others, examined material
exculpatory evidence, heard of multiple, ongoing, Brady violations and was presented evidence
of selective and vindictive prosecution, in and out of the presence of the jury. During these
Brady arguments, Holly Taylor had every opportunity to remedy her Professional Misconduct
and exercise her affirmative duty of candor to the tribunal, and admit that she was acting as an
"investigator" and not an advocate after July l5'h, and knew Applicant and Mary Jo Woodall did
not commit any crime, and submit the exculpatory evidence in her possession. Brady, 373 U.S. at
87, 83 S. Ct. at 1196-97; Texas Disciplinary Rules Of Professional Conduct Rules 3.8, 8.03 and
.. .
. •!-
8.04.
On July 15, 2011, Travis County Assistant District Attorney, Holly Taylor, left her role as
a prosecutor and thereafter engaged in the role of "investigator" gathering evidence, interviewing
witnesses, getting facts and information, giving legal advice, and clearly functioning as
investigator.. (See Exhibit 6, Charlie Malouf! v. United States, A-13-CV-572LY (A-11-CR-
..,_, ...
647(1)-LY) 2255 Motion to Vacate, Supplemental Report Field Observations-Chief Stetar
attachment and Exhibit 2, reflective photo of Taylor taking photos of evidence). Clearly at that
-l.- ' .. ,.\
time, Carter and Taylor lacked probable cause and Taylor was not in a position to claim to be an
advocate. All information and evidence gathered by Taylor after that date is subject to Brady
and cannot be hidden from the defense as work product.
Under Brady, in order to ensure the accused a fair trial, a prosecutor has an affirmative
. , ... ; '·
. . \.
duty under the Due Process Clause of the Fourteenth Amendment to tum over to the accused all
Memerflftffiiffi 37 " ··
.. ·~~ ....
exculpatory or impeachment evidence, irrespective of the good faith, or bad faith of the
prosecutor, which is favorable to the defendant an is material to either guilt or punishment. This
includes the prevention of willful and intentional destruction of that exculpatory or impeachment
evidence. Those Wind Energy Systems with electrical systems in tact, impeachable evidence in
the fmm of Aaron Knapek's improper wiring setup and magnetic brake (see Exhibit 2, Aaron
Knapek City Hall and Waste Water Treatment Plant wiring and alternator photos), and capability
to be converted to working Wind Energy Systems with a correctly wired generator were
favorable to the accused because it was both exculpatory and impeaching; were suppressed and
destroyed by the State; as a result, prejudice ensued with the conviction. Brady v. Maryland, 373
U.S. 83, S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Evidence is "material" within the meaning of
Brady when there is a reasonable probability that had the evidence been disclosed, the result of
the proceeding would have been different Cone, 129 S. Ct., at 1783; United States v Jernigan,
._.,·
1
492 F.3d 1050, 1053-54 (9 h Cir. 2007); Kyles v Whitley, 514 U.S. 419, 432-33, 115 S. Ct. 1555,
1565, 131 L. Ed. 2d 490 (1995); United States v. Bagley, 473 U.S. 667, 674, 105 S. Ct. 3375,
3379, 87 L. Ed. 2d 481 (1985). This duty attaches as soon as the information comes into the
'J··-
prosecutors possession. On July 15'h, 2011, the first of an enormous amount of exculpatory and
impeachable information was collected by Holly Taylor herself, as portrayed in a reflective
.. . .· ,-. .. ': --·,' ', ; ..,.. ' - .
photo of her, clearly identified by her wedding ring and jewelry, taking photographs of evidence
. ' .. ' ., ' ',. ,-.
at the Jonestown Waste Water Treatment Plant, then directly delivered to Holly Taylor,
-- '
functioning as an "investigator" by the Jonestown Chief of Police, John Stetar, and later her
taking pictures of the area around Fire Station 2. All exculpable and impeachable information
gathered by Taylor was mandated to be released to the defense and the crime scene and other
mate1ially relevant property involved in the very case T438 U.S. 154,
171, 98 S. Ct. 2674, 2684, 57 L. Ed. 2d 667 (1978). A defendant must show that 1) "the alleged
misrepresentation or omissions were knowingly or recklessly made" and 2) "the result of
·-i- ' . -·,·-:·
excluding the alleged misrepresentation and including the alleged omissions would have been a
lack of probable cause for issuance of the warrants" United States v. Novaton 271 F.3d 968 (11th
01). In Frank's, Justice Blackmun recognized that a warrant could be invalidated if a "false
statement is necessary to the finding of probable cause."
··.-··· ....... ,.,_ ..
Taylor's professional misconduct, and Sage's failure to grant a mistrial, or dismiss with
prejudice, and her rulings, and failures to rule on other motion's, compounded by Applicant's
; ( ..
attomey' s expectation of favoritism, manifested an already ongoing miscarriage of justice, and
rendered Applicant's trial so fundamentally unfair it violated all rights of due process.
f • • • •
Making this already egregious and grotesquely unconstitutional situation worse, was the
irresponsible and unethical conduct of Needles and Wood in using "best friend" favoritism as an
excuse not to put on a defense. Jackie Wood violated Model Rules of Professional Conduct Rule
•. I • ' \':1 '
8.04 (a) (1) when she "personally and, through the acts of another," Tamara Needles, in
conference just prior to the Defense resting, violated Rule 8.04 (3) engaged in "conduct
.. ' ..
involving dishonesty, fraud, deceit and misrepresentation," again impressing on Applicant that
Metfiel'ttfiehfm 41
q?
Karen Sage "got it!" and "Karen's got it!" and Wood's statement, "Karen's got my back!" and
both Wood and Needles saying "trust me" and "we should rest" violating Rule 8.04 (a) (5)
"state or imply an ability to influence improperly a government agency or official",
misrepresenting and deceiving Applicant into believing, as Sage's "best friend" they had already
arranged for favored decisions from Sage and that Applicant should throw away his opportunity
for a defense presentation that was "several weeks" worth of exculpatory witnesses and
evidence.
During this conversation Applicant told both Wood and Needles he wanted to challenge
prosecution witnesses and at least have several of the Defense witnesses testify. (See Exhibit 1,
Howard Reed Affidavit). They continued to impress on Applicant Karen Sage "got it!" and
'
"Karen's got it!" and "Karen's got my back!" and "trust me" and "we should rest" There is no
ethical or responsible "trial strategy" in intentional deception and misrepresentation of the
expected conduct of a trial judge or the trial counsel to throw away a clients rights to a fully
engaged and meaningful defense and fair trial. As Officers of the Court, their statements and
__ ,.
conduct can only be taken as "true". There can be no trial strategy justification here because this
conduct was so ill chosen it permeated the entire trial with obvious unfairness. Seigfried, v
Greer, 372 Fed. Appx. 536 (S'h Cir. 2010).
Aside from the professional misconduct, Tamara Needles and Jackie Wood blatantly lied
and deceived Applicant in their fraudulent and misrepresented relationship between Jackie Wood
and Karen Sage, and Wood's expectation of decisions by Sage as her "best friend" regarding
Applicant and the case. (See Exhibit 1, Bar Grievances).
Wood's and Needles words, confidence, and intent were conduct that was impressed and
implied in a manor that exhibited the confidence Sage would decide key judicial decisions in
' __i ., .-.,.
favor of her "best friend." This inapp~opriate reliance on the "best friend" relationship, based on
'' • . Meffiefaii:SRirl 42 .
J~
. the conduct of both Tamara Needles and Jackie Wood, stated below, falls on the unethical and
irresponsible conduct of both attorneys and calls into question the integrity of both the trial judge
and failness in the administration of justice.
After the verdict, Jackie Wood told Applicant "Karen's decisions were political." Shortly
thereafter, Ariel Payan was appointed, by Sage; as Applicant's appellate counsel. In a visit at the
Travis County Jail, Payan hand delivered a letter dated October 22, 2013, and in a "let's cut to
the chase" conversation, Payan told Applicant "my wife works for the prosecutor's office." "We
are friends with Holly Taylor and I know her husband." And, "We all talk." And, "It's a close
knit group." Payan then told me "The judge's decisions were political. Political and influenced
to get contributions and votes for her upcoming re-election" And, "The judge is not likely to
._,.•• , I •
decide on something that can effect her election." (See Exhibit 1, Judicial Misconduct and Bar
Grievances,). At that point, Payan was obligated under the American Bar Association Model
Rules of Professional Conduct, and the Texas Disciplinary Rules Of Professional Conduct, to
notify the trial court, or the Appellate Court, of the issues raised and conflicts of interest created
,.. ,., .,
therein. United States v. Grieg, 967 F.2d 1018 (5 1h Cir 1992); ("While we recognize that a trial
'' t •
court does not always have an affirmative duty to inquire into the possibility of a conflict of
interest, it does have a duty to conduct a hearing once it has been alerted and certainly when it
I' '•·r
knows of the existence of an actual conflict of interest."). Armstrong v. State, 573 So. 2d 1329,
1335 (Miss. 1990). ("As an actual
..
conflict which adversely affected
..
counsel's performance was
"
shown, the trial court, who Wood implied by their relationship, the decisions were already made,
.. . '
reasonably should have known the conflict existed"). As of August 5'\ 2014, Payan has neither
complained to the Tribunal, filed for a new trial, filed a report to the Bar Association, responded
.... ,,
to, or requested information from Applicant, or stepped down as Applicant's appellant attorney,
. ·,.-<-
furthering Applicant's fears of being further prejudiced and not getting a fair appeal .
.·..~i6tntlr.ai1dtiin 43· :··'
,..,
Here we have an extraordinary case of rimltiple errors that created an extreme malfunction
in the justice system. The "best friend" of the trial judge failing to continue adversarial testing to
prosecution witnesses, after being instructed by Applicant to address exculpatory information,
including cross-examining the prosecutor, who after July 15th, 2011, left her role as advocate
and functioned as an "investigator" and was subject to cross-examination on the facts she was
given and not verified from that point on, and her giving legal advice to the police on material
omissions and misleading the magistrate. And, defense counsel's failing to put on any
meaningful defense or call exculpatory witnesses, (see Exhibit 1, Howard Reed Affidavit) who
were readily available to testify, because she was so confident in her relationship with the trial
judge, and that the judge would rule in her favor, complicated by the trial judge herself, who for
- ~- ' ,
-.. '
pecuniary interest, in votes and contributions, in her upcoming re-election campaign only weeks
away, ruled against Applicant. Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749, 5
Ohio Law. Abs. 159, 5 Ohio Law. Abs. 185, 25 Ohio L. Rep. 236 ("the court has consistently
found a breakdown in the adversarial process when the judge has a direct financial interest in the
outcome of the proceedings." (See Exhibit 1, Judicial Misconduct Karen Sage for Judge). "his
conduct will be controlled by the terms of the promise or the undertaking." McCormick v United
States, 500 U.S. 257, 273, 111 S. Ct. 1807, 114 L. Ed. 2d 307 (1991); United States v Brewster,
____ ,,_..
"
\'. .. ,-" -
408 U.S. 501, 526, 92 S. Ct. 2531, 33 L. Ed. 2d 507 (1972) ("The illegal conduct is taking or
..
agreeing to take money for a promise to act in a certain way."). (" ... receipt of something of
value, "in exchange for an official act." United States v. Sun-Diamond Growers ofCal., 526 U.S.
398,404-05, 119 S. Ct. 1402, 143 L. Ed. 2d 576 (1999). Karen Sage stated," .. ..I have reviewed
all documents and records as well." (See Exhibit 5; 299th District Court Records, D-1-DC-13-
904021-EXH-VOL004, page 19). Karen Sage was presented with Defendants Brief in Support
of Materiality of Falsehoods and Omissions (see Exhibit 5, Clerk's Record D-1-DC-13-
·~ienlBfaftdttm- 44
~}I
904021_395, pages 267-269); Defendants Brief in Support To Brady Violation (see Exhibit 5,
Clerk's Record D-1-DC-13-904021_395, pages 244-249 and Letter from Jonestown to the
Department of Energy and Holly Taylor, Travis County District Attorney, July 18, 2012 Gust
three days after Holly Taylor was told to her face by the Jonestown Chief of Police, John Stetar
that Toby Miller was a suspect in Attempted Murder and sabotaging the Jonestown Wind Project
and that there was an active police investigation under way) page 200); Defendants Brief in
Suppmt of Frank's Ruling (see Exhibit 5, Clerk's Record D-1-DC-13-904021_395, pages 240-
243); Defendants Motion to Suppress Evidence Due to Spoliation (see Exhibit 5, Clerk's Record
D-1-DC-13-904021_395, pages 179-181); Defendants Motion to Quash hnproper Complaint
(see Exhibit 5, Clerk's Record D-1-DC-13-904021_395, pages 186-188, and Exhibit 6, Charlie
~, -. _., ,., .
Malouff v. United States, A-13-CV-572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate);
-.; .., '
Defendants Motion to Quash for Selective Prosecution (see Exhibit 5, Clerk's Record D-1-DC-
13-904021_395, pages 183-185); Defendants Motion to Suppress/Frank's Motion for Directed
Verdict and Motion to Suppress (see Exhibit 5, Clerk's Record D-1-DC-13-904021_395, pages
10-12), and as such Karen Sage was clearly the decision-maker. Neder v. United States, 527
U.S. 1,8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (the presence of a biased decision-maker is a
structural error subject to automatic reversal); Edwards v. Balisok, 520 U.S. 641, 647, 117 S. Ct.
1584, 137 L. Ed. 2d 906 (1997) ("A criminal defendant tried by a partial judge is entitled to have
--._. , ..,•. ··,
his conviction set aside, no matter how strong the evidence .against him."); Brecht v
• ') • r '• • ' ., •• ' ,•• ' ' •!'
Abrahamson, 507 U.S. 619, 629-30, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993) (Trial errors that
' I ;•·•.
occur during the presentation of the case to the jury are subject to harmless-error analysis. "At
.. --- '.
the other end of the spectrum of constitutional errors lies "structural defects" in the constitution
of the trial mechanism, which defy analysis by the "harmless-error" standard and require
automatic reversal." !d.); Johnson v United States, 520 U.S. 461, 469 117 S. Ct. 1544, 137 L. Ed.
· Mef!ieF!tiitlttm 4:5 ·
~~
2d 718 (1997); Rose v Clark, 478 U.S. 570, 577-78, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986)
("If the defendant had counsel and was tried ·by an impartial adjudicator, there is a strong
presumption that any other errors that may have occurred are subject to harmless-error
analysis."); Tumey 273 U.S. at 523. 'It is sufficient if the public official understood he or she
was expected to exercise some influence on the payer's behalf as the opportunities arose."
·United States v. Abbey, 560 F.3d 513, 518 (6th Cir. 2009); United States v Jefferson, 674 F.3d
332, 358-59 (4th Cir. 2012); Ryan v United States, 688 F.3d 845, 852 (7th Cir. 2012); United
States v Ganim, 510 F.3d 134, 147 (2"d Cir. 2007).
Applicant shared the front page of the Austin American Statesman several times with the
District Attorney, Rosemary Lehmberg, who was arrested for DWI and was facing criminal
charges and impeachment, in addition to her personal battle with Rick Perry, the Governor of
Texas over his shutting down funding of the Public Integrity Unit and this case was a political
firebomb excuse as to why they had to have funding. (See Exhibit 1, Judicial Misconduct and
Austin American Statesman articles).
Egregiously compounding these problems is the prosecutor, Holly Taylor, herself, who
almost two years before, left her role as prosecutor and functioned as an "investigator" and who
knew full well she was hiding exculpatory material evidence (see Exhibit 5, 299th District Court
Records, D-1-DC-13-904021-EXH-VOLUMES 1-27, COURT REPORTERS RECORD, D-1-
I_~ :• •·
DC-13-904201_395 CLERKS RECORD, and Exhibit 6, Charlie Malouffv. United States, A-13-
CV-572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate, Carter Transcript attachment), failed·
'
'_--,- .,
to be candor with the tribunal at every stage of the proceeding beginning with the magistrate (see
-· ,. r'·, .-,
Exhibit 5, Brief in Support To Brady Violation, Clerk's Record D-1-DC-13-904021'--395, pages
7 '
244-249, Letter from Jonestown to the Department of Energy and Holly Taylor, Travis County
District Attorney, July 18, 2012 (just three days after Holly Taylor was told to her face by the
Memeftiflai:liR 4e
Lf-'6
' ~ -.
Jonestown Chief of Police, John Stetar that Toby Miller was a suspect in Attempted Murder and
sabotaging the Jonestown Wind Project and that there was an active police investigation under
way). (See Exhibit 6, Charlie Malouff v. United States, A-13-CV-572LY (A-11-CR-647(1 )-L Y)
2255 Motion to Vacate, Supplemental Report Field Observations-Chief Stetar and Jonestown
Police Reports). And, who completely ignored the facts that her primary complainant's were
already under criminal investigation in another jurisdiction for multiple felonies, and were
clearly attempting to cover up their crimes under the color of authority, then tried to hide behind
the work product doctrine, and she supported and encouraged the City of Jonestown to
maliciously destroy exculpatory physical evidence that could have only been proven in the Wind
Energy Systems they destroyed (See Exhibit 5, COURT REPORTERS RECORD, D-1-DC-13-
904201_395, page 200 CLERKS RECORD, Letter from Jonestown to the Department of Energy
and Holly Taylor, Travis County District Attorney, July 18,2012). Brady trumps work product
('
doctrine. Ex Parte Miles, 359 S.W.-3, 647 (Tex. Crim. App. 2012) (holding that the privilege
derived from the work product doctrine is not absolute, and the duty to reveal material
''-··
exculpatory evidence as dictated by Brady overrides the work-product privilege); see also
Hampton, 86 S.W.3d at 612 (discussing the state has the duty to disclose police reports
containing material exculpatory information); Thomas v State, 837 S.W.2d 106, 113-14 (Tex.
Crim. App. 1992). Carter stated in her July 15th, 2011 Supplemental Report, Chief Stetar- ·
Observations, she and ADA Holly Taylor were out gathering evidence and "investigating"
before they had any meaningful probable cause. This is substantiated by a reflective photo of
. . . ·1 .
Holly Taylor (identified by her distinct wedding ring and jewelry) photographing an electric
meter out by the Jonestown Waste Water Treatment Plant. United States v. Buckley, 509 U.S. at
- .
273, 113 S. Ct. at 2616. "The Supreme Court stated that a prosecutor neither is, nor should
~t . ·' ,·.
consider himself to be an advocate before he has probable cause to have anyone arrested, 509
U.S. at 274."; Broam v. Brogan, 320 F.3d 1023, 1028 (9th Cir. 2003); Kalina v Fletcher, 522
U.S. 118, 127, 118 S. Ct. 502, 139 L. Ed. 2d 471 (1997) "The nature of the function performed,
not the identityof the actor who performed it."; Botello v Gammick, 413, F. 3d 971, 976 (9th Cir.
2005); Van de Kamp v Goldstein, 555 U.S. 335, 342, 129 S. Ct. 855, 172 L. Ed. 2d 706 (2009);
Jones v Cannon, 174 F.3d 1271 (5th Cir. 1999).
From that point on, Holly Taylor left her role as a prosecutor and entered the role of
"investigator" gathering evidence, as proven in her reflective photo of her photographing
evidence at the Jonestown Waste Water Treatment Plant, (see Exhibit 2, photos) and providing
legal advice to Carter. Taylor and all of her notes, reports, recordings and other instruments used
in gathering evidence and interviewing witnesses containing exculpatory evidence are subject to
,_ -· ('
disclosure and cross-examination. Brady v. Maryland, 373 U.S. 83, S. Ct. 1194, 10 L. Ed. 2d
215 (1963); United States v. Burns, 500 U.S. at 496, IllS. Ct. at 1944-45; Botello v Gammick,
•.:
413, F. 3d 971, 976 (9th Cir. 2005); Van de Kamp v Goldstein, 555 U.S. 335, 342, 129 S. Ct.
855, 172 L. Ed. 2d 706 (2009). The fundamental fairness in the rightto adversarial testing, and a
- ...... ' -
fair trial, was lost when Holly Taylor was allowed. to prosecute the case and, when she should
.,., r
have been subject to cross-examination, hid behind her cloak of advocate.
The appointed appellate attorney, Ariel Payan, whose wife worked for the District
''··· I ,''.
Attorney and who are friends with the prosecutor, further contributed to this fundamental
. .
miscarriage ofjustice, because of his statements, and inside knowledge along with his failure to
properly bring these problems to the attention of the court (See Exhibit 1, Judicial Misconduct
and email to Payan 5/26/14), in violation of the American Bar Association and Texas
Disciplinary Rules Of Professional Conduct Rule 8.03 (a) "a lawyer having knowledge that
another lawyer has committed a violation of applicable rules of professional conduct that raises a
substantial question as to that lawyers honesty, trustworthiness or fitness as a lawyer in other
MsH'isfiiftatu¥1: 48 ·c·.
'
s--g
. .. , .
i :- ' . - .. -...
respects, shall inform the appropriate disciplinary authority." And, (b) "a lawyer having
knowledge that a judge has committed a violation of applicable rules of judicial conduct that
raises a substantial question as to the judges fitness for office shall inform the appropriate
authority." (See Exhibit 1, Judicial Misconduct emails dated 3/21114, 5/10114, 5/22114 and
5/26114) All of these parties knew they were violating Applicant's right to due process, a fair
trial and appeal, and subsequently the same rights to Applicant's co-defendant Mary Jo Woodall,
but to save face, and because of their personal relationships, and a political self-preserving
attitude, none was willing to formally challenge the professional misconduct of the other.
The statements, made by three independent Officers of the Court, regulated by the
American Bar Association Model Rules of Professional Conduct; Texas Code of Judicial
Conduct, and the Texas Disciplinary Rules Of Professional Conduct, can only be taken as true
.I " .
and support Sage's violations of Texas Code of Judicial Conduct Canon 2(A)(B); Canon
3(B)(2); Canon 4(A)(l) and Canon S(l)(i) resulting in her making decisions contrary to and
involved unreasonable application of clearly established state and federal laws as determined by
both Supreme Courts, and the Constitutions of both Texas, and the United States.
Combined, the statement's of three independent Officers of the Court regarding Karen
·-·· . r ··-:: .,< ---~ ~ .... , ·,:,.
Sage's decision's based on "political" reasons for pecuniary interest, considering she was up for
~":
re-election, March, 2014 (See Exhibit 1, Judicial Misconduct), equate to a violation of the Texas
Code of Judicial Conduct, Canon 3, B(2), "A judge should be faithful to the law and shall
.,. ~
maintain professional competence in it. A judge shall not be swayed by partisan interests, public
. .
clamor or fear of criticism." And, (5) "A judge shall perform judicial duties without bias or
.. ,--
prejudice."
According to Rule 8.2 of the American Bar Association Model Rules of Professional
Conduct and the Texas Disciplinary Rules Of Professional Conduct Rule 8.02(a) "A lawyer shall
Memerandtitir 49 ·
S"""l
not make a statement the lawyer knows to be false or with reckless disregard as to its truth or
falsity concerning the qualification or integrity of a judge." These attorneys violated Rule
8.02(a) when they made the statements with reckless disregard as to their truth or falsity
concerning the integrity of Judge Karen Sage. (See Exhibit I, Judicial Misconduct and Bar
Grievances).
As more withheld Discovery becomes available through Federal proceedings (See Exhibit
6, Charlie Malouffv. United States, A-13-CV-572LY (A-11-CR-647(1)-LY), the integrity of the
state proceedings will come under further question and suspicion.
Applicant was convicted and sentenced to fifteen (15) years for Securing Document By
Deception. (See Exhibit I, Judgment Of Conviction By Jury)
,•
·.,r . ·.
In Defendants Brief In Support Of A Court Finding Of Brady Violations, August 23, 2013
(See Exhibit 5, Clerks Record D-1-DC-13-904021_395, pages244-249), Taylor, Susan Oswalt,
Greg Cox, and the prosecutors in that office continued to violate Applicants Fifth Amendment
rights in violation. of the Texas Disciplinary Rules Of Professional Conduct Rule 3.03 (a)(l),
(C). Prosecutors who presented .Carter and the application for the search and arrest warrants to
Magistrate Judge Brown for his consideration, had the duty of candor to the tribunal, as
.- ---· '
prosecutors may not "in an ex parte proceeding, fail to disclose to the tribunal an unprivileged
. . . . . ,.
fact for which the lawyer reasonably believes should be known by that entity for it to make an
informed decision.
I,·· .. .,
Holly Taylor, Susan Oswalt, Greg Cox and the other prosecutors in her office, violated the
Texas Disciplinary Rules Of Professional Conduct Rule 3.03(a)(3)(c) and ABA Rules 3.8
'. •, .,
Special Responsibilities Of A Prosecutor (a),(d),(g)(l),(h), and Lori Carter failed in her
responsibilities, as a police officer and person of public trust, when they failed to inform the
magistrate the information they were providing him, regarding an email dated 8/29/2008
· Msmof&H~l:lffi. SQ
5"1---
J
between Applicant and his "employees" (who were then studen~s involved in a one day a week,
Senior Design class project, at the University of Texas), Profess9r Ron Stearman, at home and at
school, and Dana McCoy, and copied to Woodall, at the State Energy Conservation Office,
stating "Guys, I will be doing some traveling in the immediate future (to rural Mexico with no
phone or internet access). Should I not be around and you have something that needs addressing,
please call Mary Jo direct at 512-826-5271. She knows exactly where we are, what !/we need,
when and knows the whole complete picture. Her decisions are as good as mine." (See Exhibit
5, 299th District Court Records, D-l-DC-13-904021-EXH-VOL027, page 359-363). The
materially omitted part was the email was part of a three page email preceding it that started on
8/27/2008 at 3:40pm from Applicant to Richard Thompson, Project Manager, University of
Texas Center for ElectroMechanics (CEM), and copied to Mary Jo Rowan;
Todays Results
\')
Thank you for coming out to the turbine. Wind speed 15 mph; shaft 3.5"; 22 rpm;
48/16 on the torque
Followed by a direct email at 4:03pm from Thompson t9 CEM engineer, Brian Murphy;
Please verify the produced power. I get 16 watts. Use my numbers below not
Charlie's
Followed by the forward at 4:41pm from Richard Thompson to Applicant and cc'd to CEM
engineer, Brian Murphy;
Please send me more data as it becomes available. For the numbers you wrote
down for me, the generated power is 16 watts. This number will scale up linearly
with increase wind turbine height, with increasing wind turbine diameter. This will
go up expotentially with speed. Another important number is calculated wind
turbine efficiency. Usually for VAXT this is in the range of 20% to 30%. Richard
MeffiefttflER!Hi 51
5'1
Followed by a direct email at 4:32pm from Murphy to Thompson;
That's what I got. I6.4 watts
Followed by an email on 8/28/2008 at 0824 am, from Applicant to Mary Jo Rowan;
Today's Results
Per our conversation after this email. We have in the works a drive system that
will multiply this figure by 80. This is low wind at 15 mph. The drive starts at 7.1
mph with resistance. This system can work individually or in series with another.
This is16.4 watts per minute. Multiply that by 80 once we get new drive finalized.
Figure 60 minutesper hour and using a 3 hour day calculation to work off of I
also figured 345 days per year allowing for no wind days. This will allow us +1-
adjustments that should be close to accurate. Anything above that I will consider
gravy.
Charlie Malouf!
CM Energies
Carter and Taylor omitted it was clear this was in the company's earliest stages of study
and testing, and that Thompson and Murphy, who McCoy, Stearman, and the students had no
idea of their roles or requests, were clearly interested in the technology and developments, and
I','
they were requiring more information as it became readily available. McCoy knew this was
different business circumstances, that was temporary and related to Key Man issues that related
to a legal entity that just began class projects on studying the validity and feasibility of a new
Vertical Axis Wind Turbine and the Company and professor would have been without anyone
who knew what was happening with legal matters (Company's relationship to the University and
as a corporation), when Applicant had to go to Mexico on short notice for four days, to an area
where criminal activity of kidnappings and murder were at a high. This stale and irrelevant
Memmttnelttm 52
information was taken out of context and made to look like Mary Jo:s relationship with CM
Energies was more than what it was.
Dana McCoy, Applicant's daughter and president of the Company, knew this. McCoy
knew, through discussion of the problem with her and her just getting started in learning the
business and her lack of knowledge of the industry along with the status of the study and testing
·stages at the University of Texas, and with the approval of the company General Counsel, Mike
Guevara, since there was no one qualified at that time, to assume authority to give direction and
status of the company's immediate standing and project status in the event of tragic accident,
Mary Jo's role was, as ·a person of authority who was informed of the big picture, to give them
direction.
Taylor, the prosecutors in her office, and Carter had the obligation to inform the
magistrate, but knowingly and intentionally omitted other material facts, such as, the Grant was a
cost reimbursement grant, and the Grantee, the City of Jonestown, was not allowed to profit any
funds, but to receive the funds, and pass the funds on to the appropriate sub-contractors to
perform the work required in the contracted Deliverables, and the money was appropriately spent
and documented; that the American Reinvestment and Recovery Act, ARRA, Stimulus Grants
were to create jobs and stimulate the economy and that the sub-contractors to the grantees, for all
of the awarded grants were not only allowed, but encouraged to make a profit, and this was not
I
only publicized on the Department of Energy and Comptroller websites, but the President of the
United States made these assertions on national TV in support of the Act; That Miller and Cook
and Graham were under investigation for falsifying time sheets· on the Grant, and Miller for
involvement in Industrial Espionage in the theft ofa laptop used for the Project and contained
confidential and proprietary information, and his involvement in the s;1botaging of the windmills;
Miller and Cook, with McCoy and Guevara's approval, had provided the submissions Miller
~icurdrartdtinr. 53
accused Applicant of falsifying to permitting agencies only to have _them rejected because they
were patently wrong and not in compliance with Grant requirements; that the U.S. Fish and
Wildlife Service mandated structural design changes before they would allow NEPA permitting,
and those changes were made and approved by the Department of Energy and back down
through the Texas Comptroller to the City of Jonest9wn; that a corporation can use its profits as
it sees fit within .the bounds of the law; that ])ecause there were structural changes, common
sense would dictate that the new structure had to be tested; that since it was a cost reimbursement
grant, the costs for those changes were borne upon by the Grantee's subcontractor, CM
Alternative Energies, Inc.; that materials of significant less cost were ordered and delivered only
to be changed by the Mayor of Jonestown after the first Wind Energy System was installed; that
-,_.. ]!
Robin Timmons, the District Attorney's Forensic Auditor, accounted for all of the funds and
I' ' ) .
informed Taylor and Carter, while money had shifted from one account to another and may have
had an outward appearance of impropriety, there was no actual crime, and given the
circumstances with the Fish and Wildlife mandate, and cost reimbursement requirements, the
bank check faces that indicated what the spent money was for, it was more than reasonable the
monies were shifted to accommodate material problems, not to mention CM Energies was
actively engaged in other than grant business; Carter and Taylor omitted material information to
the magistrate that all of the towers, bases and blades were built, painted, delivered, and installed
or sitting in the open yard at BABECO, in Taylor, TX; Carter and Taylor omitted Deane
Armstrong, the Mayor of Jonestown stopped all outdoor welding on the project due to all of the
: ' ', '
wildfires in and around Jonestown (See Exhibit 5, 299th District Court Records, D-1-DC-13-
. ·- ... r,' .·
904021cEXH-VOLUMES 1-27, COURT REPORTERS RECORD, D-1-DC-13-904201_395
CLERKS RECORD, and Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY (A-11-
CR-647(1)-LY) 2255Motion to Vacate, wildfire news attachment); Carter and Taylor submitted
J91einftraflclt±m 5 4
{"Itt
patently false statements saying "The City of Jonestown did not receive any benefit from these
fraudulently obtained grant funds ... " when the City of Jonestown did receive what they paid fbr
when the Systems were installed, fully, or partially and that work was still in progress, and
materially omitted was the City was happy and in compliance and still had over 80 days left on a
working contract; And, mislead the magistrate when they said "nor did the representatives of the
City of Jones town that signed the Grant application financially benefit from the Grant" making it
sound like the City had no role or responsibility in procuring or receipt of the materials, or
obligation of the no-less-than $400,000 providing in-kind responsibility the City was, by
contract, responsible for, which is defined in Code of Federal Regulations, Title 2-Grants and
Agreements Volume: l Date 2014-01-01, Original Date: 2014-01~01 Title: Section 200.96-
,. r ·-- :::~ ~.,- . i-·
Third-Party In-Kind Contributions; Grants and Agreements, Subtitle A-Office of Management
and Budget Guidance for Grants and Agreements. Reserved. PART 200-UNIFORM
ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES, AND AUDIT
REQUIREMENTS FOR FEDERAL AWARDS. Subpart A-Acronyms and Definitions. § 2 CFR
200.96-Third Party In-Kind Contributions as;
" .r···-.
Third-party in-kind contributions means the value of non-cash contributions (i.e.,
property or services) that
(a) Benefit a federally assisted project or program; and
' . ,. -· .
(b) Are contributed by non-Federal third parties, without charge, and to a non-
...
Federal entity under Federal award
when they said, "instead the project only became a financial burden for the City of Jonestown."
The City had no where near that amount of in-kind contribution (See Exhibit 5, Clerk's Record
---- ,. . •. "'"!'
D-l-DC-13-904021_395, pages 347-348); that Miller, Thomas and Knapek were suspects in
Theft of Trade Secrets, the Destruction of a Federally Funded Energy Project, Attempted
MemeFaBCiffim 5)-.
>'1.. ,_.
Murder and other crimes; that Miller and Cook, police officers, and persons of public trust, and
Graham had falsified their Grant time sheets and Miller and Cook falsified their police time
sheets as well; that Miller admitted that he nor Cook had never read the Grant or any of the,
approximately 100 Code of Federal Regulations that were mandated for NEPA review." (See
Exhibit 5, 299th District Court Records, D-1-DC-13-904021-EXH-VOL027, page 359-363 and,
Exhibit 2, June Monthly Report); that the Comptroller and the Department of Energy, the very
people who managed the Grant and funds, had said there "was no evidence a crime had been
committed"; that Applicant was physically on scene and visited with DOE auditors, Mike
Guevara, and Justin Shepherd June 11, 2011 and personally showed them the connected
electronics and installed alternator in the Wind Energy System at City Hall, and that Applicant
and his company were actively engaged in the Grant process, and actively working with the
Grantee, the City of Jonestown, and the DOE, to complete the grant, which still had over 82
days to go until the end of the contract, and that the Grant could have been extended up to
., .. _, '.,.,:" .... ...
, ',','',"
another year; that Carter did not personally observe Applicant's motorcycle in Mary Jo
-~ . '.· -, ~ .
Woodall's garage, but observed several motorcycles in the garage with no positive identification
from over a block away, and the information she received from Miller and others was over a
year old and stale; that Carter had almost a year to investigate the complaint but only took one
''i'
day to do her surveillance on Woodall's home, and took no time to follow Applicant to see
where he kept his motorcycle; that there were no exigent circumstances, that could have
prevented Carter and Taylor from taking extra time, or requesting other assistance, to conduct a
more thorough investigation in identifying the license numbers of the motorcycles parked at
Woodall's, or simply waited the 82 days for the contract to expire, being they waited a year
already, and at that time, found had nothing been done, and the subcontractor in default, they
would then have probable cause for fraud, and they could have waited to submit their application
· . Moll'i'i,sta.HE!i:lffi 51§
.93
until then; (See Exhibit 5, 299th District Court Records, D-1-DC-13-904021-EXH-VOLUMES
1-27, COURT REPORTERS RECORD, D-1-DC-13-904201_395 CLERKS RECORD, and
Exhibit 6, Charlie Malouf! v. United States, A-13-CV-572LY (A-11-CR-647(1)-LY) 2255
Motion to Vacate, Carter Transcript attachment). Taylor violated Texas Disciplinary Rules Of
Professional Conduct Rnle 3.03 (a)(l), (C).
The cumulative criminal conduct of Miller, Cook, and others, patently false and misleading
statements, and material omissions, by these persons of public trust, including the prosecutor,
would have caused a reasonable jurist to question the validity of the information without further
investigation. Fair play is the essence of due process. Galvan v Press, 347, U.S. 522, 530, 74 S.
Ct. 737, 98 L. Ed. 911 (1954). "The deep-rooted feeling that the police must obey the law while
enforcing the law; that in the end life and liberty can be as much endangered from illegal
. ,····
methods used to convict those thought to be criminals as from the actual criminals themselves."
Spano v New York, 360 U.S. 315, 320-21, 79 S. Ct. 1202, 3 L. Ed. 2d 1265 (1959). The duty
under Brady and the Rules of Professional Conduct applied. Giglio v United States, 405 U.S.
150, 154, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); Brady v. Maryland, 373 U.S. 83, S. Ct. 1194,
10 L. Ed. 2d 215 (1963); American Bar Association Model Rules of Professional Conduct; and
Texas Disciplinary Rules Of Professional Conduct.
- ._ ,.'.
Although the state is obliged to prosecute with earnestness and vigor, it is as much its duty
:'. .
to refi"ain from improper methods calculated to produce a wrongful conviction as it is to use ever
legitimate means to bring about a just,,. one. Cone v Bell. 129 S. Ct. 1769, 1782, 173 L. Ed. 2d
701 (2009). In a criminal prosecution is not that it shall win, but that justice shall be done. Holly
Taylor and Karen Sage overstepped their bounds of propriety and fairness. Berger v. United
States, 295 U.S. 78, 88, 79 L. Ed. 1314, 55 S. Ct. 629 (1935).
~4s83.braHdtllil 57
&7 \'J -.
Our Constitution places in the hands of the trial judge the responsibility for safeguarding
the integrity of the jury trial. United States v. Bowen, No. 10·204, U.S. Dist. LEXIS 134434
(2013) WL., quoting United States v. Gainey, 380 U.S. 63, 68, 85 S. Ct. 754, 758, 13 LEd. 2d.
658 (1965).
The trial court has inherent power to the extent necessary to deter, alleviate andcoun teract
bad faith of the judicial process, this includes any reason the trial resulted in a miscarriage of
justice. United States v. Scroggins, 379 F. 3d. 233 (5th Cir. 2004), vacated on other grounds,
534, U.S. 1112, 125 S. Ct. 1062, 160 L Ed. 2d. 1049 (2005). Had defense counsel and
prosecutors not so flagrantly, and egregiously violated the Rules Of Professional Conduct, and
the trial judge not so shamelessly violated the Rules Of Professional Conduct, and Judicial
Canon Df Ethics, in this extraordinary case, in applying decisions that were an unreasonable
...
application or contrary to clearly established Supreme Court law, there is a reasonable
'
probability that the result of the proceeding would have been different, instead of an
fundamentally unjust conviction. and sentence of 15 years (See Exhibit 1, Judgment of
Conviction By Jury). United States v Schlup, 513 U.S., at 324, 115 S. Ct. 851, 130 L. Ed. 2d
808; United States v Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984);
Strickland v Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Bell v
Cone, 535 U.S. 685, 694-98, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002) ("The ultimate focus of
the inquiry must be on the fundamental fairness of the proceeding whose result is being
challenged"); Davis v Alaska, 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974) ("If counsel
entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has
been a denial of Sixth Amendment rights that makes the adversary process presumptively
unreliable, and no specific showing of prejudice is required, because Applicant had been
"denied the right of effective cross-examination" which is a constitutional error of the first
magnitude and no amount of showing of want ofprejudice would cure it") Id., at 318, 39 L. Ed.
2d 347, 94 S. Ct. 1105 (citing Smith v Illinois, 390 U.S. 129, 131, 19 L. Ed. 2d 956, 88 S. Ct. 748
(1968), and Brookhart v Janis, 384 U.S. 1, 3, 16 L. Ed. 2d 314, 86 S. Ct. 1245 (1966)); United
States v Agurs, 427 U.S., at 110, 49 L. Ed. 2d 342, 96 S. Ct. 2392 ("prosecutorial misconduct
should be evaluated not on the basis of culpability, but by
. . its effect on the fairness of the trial");
If defense counsel's self-imposed "best friend" reliance qualifies for a conflict of interest,
presumed prejudice applies. Culyer v Sullivan, 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708
(1980); Nix v Whiteside, 475, U.S. 157, 175, 106 S. Ct. 988, 89 L. Ed. 2d 123 (1986) (noting that
under Strickland, the "benchmark" of the right to counsel is the ~'fairness of the adversary
proceeding"); Kimmelman v Morrison, 477 U.S. 365, 374, 106 S. Ct. 2574, 91 L. Ed. 2d 305
(1986) ("The essence of ineffective assistance claim that counsel's unprofessional enors so upset
' . ), i
the adversarial balance between defense and prosecution that the trial was rendered unfair and
. I. '
'.('
the verdict rendered suspect"); Murray v Carrier, 477 U.S. 478, 485, 106 s. Ct. 2639; 91 L. Ed.
2d (1986); Engle v Isaac, 456 U.S. 107, 129, 102 S. Ct. 1558, 71 L. Ed. 2d 7-83 (1982);
Wainwright v Sykes, 433 U.S. 72, 87, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977); McCleskey v Zant,
···:· ... I
499 U.S. 467,494, IllS. Ct. 1454, 113 L. Ed. 2d 517 (1991).
·: . J (•
Wherefore, Federal courts have the right to issue writs of habeas corpus based on state
commitments; even .where state remedies have not been exhausted. In consideration of the
totality of circumstances, and in the interest ofjustice, under the Due Process laws of the Fifth,
Sixth, Ninth and Fourteenth Amendments to the Constitution, and in the prevention of the
t .i
furtherance of a miscarriage of justice, Applicant respectfully prays for injunctive relief, and
moves the Honorable Court to VACATE the conviction and REMAND for a constitutionally
valid fair trial, or any other relief deemed justified.
. (.
M6Hiel'afiffi:iffi 59
[,./
CLAIMS
II. Applicant Was Denied Effective Assistance of Counsel Through Professional
Misconduct And The Failure Of Counsel To Conduct Sufficient Adversarial Testing
Of Witnesses.
STANDARD OF REVIEW
Petitioner's Application regarding this request, in the interest of justice, for extraordinary
relief is associated with another extraordinary complex and complicated case already before the
Court, Charlie Malouffv. United States, A-13-CV-S72LY (A-11-CR-647(1)-LY).
The Fifth, Sixth, Ninth, and Fourteenth Amendment's to the Constitution guarantee to
criminal defendants a right to due process and a f>~ir trial. The Sixth. Amendment guarantees to
c I
criminal defendants a right not only to counsel, but to the effective assistance of counsel. See
Strickland v. Washington, 466 U.S. 668, 686 (1984) ("the right to counsel is the right to the
effective assistance of counsel") (quoting McMann v. Richardson, 397 U.S. 7S9, 771, n. 14
(1970)). Pursuant to this constitutional mandate, a defendant is entitled to reasonably competent
1: . .. •'i" ~- .'
and active assistance of counsel "at every critical stage of the proceedings against him."
Childress v. Johnson, 103 F.3d 1221, 1226-1232 (CAS 1997)
An ineffective assistance of counsel (lAC) allegation presented in a § 22S4 motion is
' '
properly analyzed under the two-prong analysis set forth in Strickland. United States v. Willis,
273 F.3d S92, S98 (CAS 2001) (held no procedural bar rule applicable to raising lAC claims
under 28 U.S.C. Section 22S4, where claim is not based solely on record developed at trial).
To prevail on a claim of lAC, a Movant must demonstrate counsel's performance was
deficient, falling below an objective standard of reasonableness, and second, demonstrate that
·'.
such deficiency caused him prejudice. Id. This means a Movant must show that counsel's
,· -· ., '
performance was outside the broad range of what is considered reasonable assistance and that
M@~~a:aQy~ 6o
,. 6Z. .
this deficient performance led to an unfair and unreliable conviction and sentence. United States
v. Dovalina, 262 F.3d 472, 474 (CAS 2001).
Constitutional Amendinents V and VI giv~ a suspect "a meaningful opportunity to present
a complete defense ... " United States v. Scheffer, 523 U.S. 303, 329 (1998) (J. Stevens
dissenting). "Few rights are more fundamental than that of an accused to present witnesses in his
own defense ... " Taylor v. Illinois, 484 U.S. 400, 408 (1988).
The Strickland analysis requires the district court to reweigh the evidence, and examine the .
cumulative effect of the errors:
In Strickland, we made clear that, to establish prejudice, a "defendant must show
that there is a reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence-in the outcome." In assessing prejudice,
we reweigh the evidence ... !d. at 123 S. Ct. 2542.
Plain errors or defects affecting substantial rights may be noticed although they were not brought
to the attention of the Court. United States v. Olano, 507 U.S. 725, 736, 123 L. Ed. 2d 508, 113
,. ·'
S. Ct. 1770 (993).
Here we have three Officer's of the Court who made statements questioning the integrity
"
of the judicial process, and what they knew to be violations of the Rules of Professional Conduct,
but failed to approach the Court, the Commission On Judicial Conduct, the American Bar
Association, or the Texas Bar Association in accordance with the Model Rules Of Professional
Conduct. The emails sent to the attorney's along with Counsel Payan's reply, on 03/21/2014 (see
Exhibit 1, Judicial Misconduct) that "WE made" the statements is uncontroverted evidence
supporting the materiality of error. Johnson v. United States, 520, U.S. 470, 137 L. Ed. 2d 718,
117 S. Ct. 1544 (1997). "The cumulative errors have seriously effected the fairness and integrity
of the judicial proceedings." Id., at 469, 137, L. Ed. 2d 718, 117 S. Ct: 1544.
· Mern6iitildanr 61
Under the Strickland standard, defendant must show that counsel's performance was
objectively deficient and that prejudice resulted from that deficient performance.
While courts are to give a certain deference to counsel's strategic decisions, courts
are "not required to condone unreasonable decisions parading under the umbrella of
strategy, or to fabricate tactical decisions on behalf of counsel when it appears on the face
of the record that counsel made no strategic decision at all." Moore v. Johnson, 194 F.3d
S86, 604 (CAS 1999); Richards v. Quarterman, S66 F.3d SS3, S64 (CAS 2009) (same).
"Strickland's measure of deference 'must not be watered down into a disguised form of
acquiescence."' Moore v. Johnson at 604.
Defense against arbitrary law enforcement through the due process of the Fourteenth
Amendment protects the Sixth Amendment right to confrontation. Duncan v. Louisiana, 391 U.
S. 14S, 1S6, 20 L. Ed. 29, 491, 88 S. Ct. 1444 (1968).
Sanders v. Ryder, 342 F.3d 991, 1000 (CA9 2003) describes the Strickland standard as
follows:
When we examine whether trial counsel gave effective assistance, we examine all
aspects of counsel's performance at different stages, from pretrial proceedings through
trial and sentencing. United States v. Leonti, 326 F.3d 1111, 1116-17 (9th Cir. 2003).
Separate errors by counsel at trial and at sentencing should be analyzed together to see
whether their cumulativeeffect deprived·the defendant ofhis right to effective assistance
of counsel. See Villafuerte vs. Stewart, 111 F.3d 616, 632 (9th cir. 1997); Cooper v.
Fitzharris, S86 F.2d 132S, 1333 (9th Cir. 1978). They are, in other words, not separate
claims, but rather different aspects of a single claim of ineffective assistance of counsel.
Cargle v. Mullin, 317 F.3d 1196, 1212 (CA10 2003), describes the Strickland analysis as
follows:
However, our decision to grant relief on ineffective assistance grounds is a function
of the prejudice flowing from all of counsel's deficient performance, as Strickland directs
it to be. See Strickland, 466 U.S. at 694-96, 104 S. Ct. 20S2 (repeatedly stating prejudice
inquiry in aggregate terms of reasonable probability counsel's errors affected outcome of
proceeding; see Fisher 282 F.3d at 1307-1311 (assessing prejudice from counsel's
numerous shortcomings and omissions," and holding "these errors" had a "devastating
impact on the defense."); Turner v. Duncan; 1S8 F.3d 449, .4S7 (9th Cir. 1998) ("it is
appropriate to consider the cumulative impact of counsel's errors in assessing prejudice).
-~1em5IttHtittnl- 62
}1
The overarching test for effective assistance of counsel is whether the defendant's attorney
subjected the prosecution's case to meaningful adversarhil testing. Strickland 466 U.S. at 686
("The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so
undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.").
The right to effective assistance of counsel is thus the· right of the accused to
require the prosecution's case to survive the crucible of meaningful adversarial testing.
When a true adversarial criminal trial has been conducted - even if defense counsel may
have made demonstrable errors - the kind of testing envisioned by the Sixth Amendment
has occurred. But if the process loses its character as a confrontation between
adversaries, the constitutional guarantee is violated. The premise of the adversarial
system in which the defen,dant has an effective advocate for his side "underlies and gives
meaning to the Sixth amendment. It is meant to ensure fairness in the adversary criminal
process. Unless the accused receives effective assistance of counsel, a serious risk of
injustice infects the trial itself." 1d. At 655:
ARGUMENT
In determining whether a defendant has received the effective assistance of counsel, courts
look to "prevailing norms of practiceas reflected in American Bar Association (ABA) standards
and the like," as guides "to determining what. is reasonable, but they are only guides."
Strickland, Supra, 466 U.S. at 688. With respect to advising a client, "A lawyer should exert his
best efforts to ensure that decisions of his client• are made only after the client has been informed
of relevant considerations." ABA· Model ·Code. of· Professional Responsibility, Ethical
Considerations 7-8 (1983); ABA Standards for Criminal'Justice: Defense Function 4-5.l(a) (3rd
Ed. 1993) ("After informing himself or herself fully on the facts and law, defense counsel should
advise the accused with complete candor concerning all aspects of the case, including a candid
assessment of the probable outcome."
The trial court has inherent power to the extent necessary to deter, alleviate and counteract
bad faith of the judicial process, this includes any reason the trial resulted in a miscaniage of
Msmeraaiilam 63
,~;r
justice. United States v. Scroggins, 379 F. 3d. 233 (5th Cir. 2004), vacated on other grounds,
534, U.S. 1112, 125 S. Ct. 1062, 160 L Ed. 2d. 1049 (2005). Had defense counsel and
prosecutors not so flagrantly, and egregiously violated the Rules Of Professional Conduct, and
the trial judge not so shamelessly violated the Rules· Of Professional Conduct, and Judicial
Canon Of Ethics, in this extraordinary case, in applying decisions that were an unreasonable
application or contrary to clearly established Supreme Court law, there is a reasonable
probability that the result of the proceeding would have been different, instead of an
fundamentally unjust conviction and sentence of 15 years (See Exhibit 1, Judgment of
Conviction By Jury). United States v Schlup, 513 U.S., at 324, 115 S. Ct. 851, 130 L. Ed. 2d
808; United States v Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984);
Strickland v Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Bell v
·~··,.-:.
Cone, 535 U.S. 685, 694-98, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002) ("The ultimate focus of
the inquiry must be on the fundamental fairness of the proceeding whose result is being
challenged"); Davis v Alaska, 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974) ("'f counsel
entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has
been a denial of Sixth Amendment rights that makes the adversary process presumptively
unreliable, and no specific showing ofprejudice is required, because Applicant had been "denied
the right of effective cross-examination" which is a constitutional error of the first magnitude
and no amount of showing of want of prejudice would cure it") Id., at 318, 39 L. Ed. 2d 347, 94
S. Ct. 1105 (citing Smith v Illinois, 390 U.S. 129, 131: 19 L. Ed. 2d 956, 88 S. Ct. 748 (1968),
and Brookhart v Janis, 384 U.S. 1, 3, 16 L. Ed. 2d 314, 86 S. Ct. 1245 (1966)); United States v
Agurs, 427 U.S., at 110, 49 L. Ed. 2d 342, 96 S. Ct. 2392 ("prosecutorial misconduct should be
evaluated not on the basis of culpability, but by its effect on the fairness of the trial"); If defense
counsel's self-imposed "best friend" reliance qualifies for a conflict of interest, presumed
Ml\lmefiffiffilffi: 64
(;/I
prejudice applies. Culyer v Sullivan, 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980);
Nix v Whiteside, 475, U.S. 157, 175, 106 S. Ct. 988, 89 L. Ed. 2d 123 (1986) (noting that under
Strickland, the "benchmark" of the right to counsel is the ''fairness of the adversary
proceeding"); Kimmelman v Morrison, 477 U.S. 365, 374, 106 S. Ct. 2574, 91 L. Ed. 2d 305
(1986) ("The es'sence of ineffective assistance claim that .counsel's unprofessional errors so upset
the adversarial balance between defense and prosecution that the trial was rendered unfair and
the verdict rendered suspect"); Murray v Carrier, 477 U.S. 478, 485, 106 s. Ct. 2639, 91 L. Ed.
2d (1986); Engle v Isaac, 456 U.S. 107, 129, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982);
Wainwright v Sykes, 433 U.S. 72, 87, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977); McCleskey v Zant,
499 U.S. 467, 494, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991).
:·
A search warrant. may be voided and the fruits of the search excluded if the warrant
affidavit contained certain misrepresentations or omissions. Franks v Delaware, 438 U.S. 154,
171, 98 S. Ct. 2674, 2684, 57 L. Ed. 2d 667 (1978) A defendant must show that 1) "the alleged
misrepresentation or omissions were knowingly or recklessly made" and 2) "the result of
·::· '·'·
excluding the alleged misrepresentation and including the alleged omissions would have been a
lack of probable cause for issuance of the warrants" United States v. Novaton 271 F.3d 968 (11th
01). In Franks, Justice Blackmun recognized that a warrant could be invalidated if "a false
statement is necessary to the finding of probable cause." After determining Travis County
.·,:· - - .,
District Attorney Investigator Lori Carter had made patently false statements and mislead the
magistrate in statements and material omissions, in at least one portion of the search warrant
affidavit, Sage should have granted a Frank's hearing. Taylor failure in candor to the tribunal
also deprived Applicant of further demonstration of the necessity of a Frank's hearing.
Brady trumps work product doctrine. Carter stated in her Juiy 15'\ 2011 Supplemental
Report, Chief Stetar-Observations, she and ADA Holly Taylor were out gathering evidence and
· ~iemCn ftHdttlil: 65.
Cl
"investigating" before they had any meaningful probable cause. From that point on, Holly
Taylor left her role as a prosecutor and entered the role of "investigator" gathering evidence and
providing legal advice to Carter. From that point on, Taylor herself was subject to cross-
examination, and all of Taylor's notes, reports, recordings and other instruments used in
gathering evidence and interviewing witnesses containing exculpatory evidence are subject to
disclosure. Brady v. Maryland, 373 U.S. 83, S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
In Defendants Brief In Support Of A Court Finding Of Brady Violations, August 23, 2013
(see Clerks Record D-1-DC-13-904021_395, pages 244-249), Taylor continued to violate
Applicants Fifth Amendment rights in violation of the Texas Disciplinary Rules Of Professional
Conduct Rule 3.03 (a)(l), (C). The prosecutors who presented Carter and the application for the
search and arrest warrants to Magistrate Judge Brown for his consideration, had the duty of
candor to the tribunal, as prosecutors may not "in an ex parte proceeding, fail to disclose to the
tribunal an unprivileged fact for which the lawyer reasonably believes should be known by that
entity for it to make an informed decision."
Holly Taylor violated the Texas Disciplinary Rules Of Professional Conduct Rule
3.03(a)(3)(c)(d),(g)(l),(h), and Lori Carter failed in her responsibilities, when they failed to
inform the magistrate the information they were providing him, regarding an email dated
8129/2008 between Applicant and his "employees" (who were then students involved in a one
day a week, Senior Design class project, at the University of Texas), Professor Ron Stearman, at
home and at school, and Dana McCoy, and copied to Woodall, at the State Energy Conservation
Office, stating "Guys, I will be doing some traveling in the immediate future (to rural Mexico
with no phone or internet access). Should I not be around and you have something that needs
addressing, please call Mary Jo direct at 512-826-5271. She knows exactly where we are, what
I!we need, when and knows the whole complete picture. Her decisions are as good as mine."
MemeFaH41iffi 66
&if>
(See Exhibit 5, 299th District Court Records, D-1-DC-13-904021~EXH-VOL027, page 359-
363). The materially omitted part was the email was part of a three page email preceding it that
started on 8/27/2008 at 3:40pm from Applicant to Richard Thompson, Project Manager,
University of Texas Center for ElectroMechanics (CEM), and copied to Mary Jo Rowan;
Todays Results
Thank you for coming out to the turbine. Wind speed 15 mph; shaft 3.5"; 22 rpm; 48116
on the torque
Followed by a direct email at 4:03pm from Thompson to CEM engineer, Brian Murphy;
Please verify the produced power. I get 16 watts. Use my numbers below not Charlie's
Followed by the forward at 4:41pm from Richard Thompson to Applicant and cc'd to
CEM engineer, Brian Murphy;
Please send me more data as it becomes available. For the numbers you wrote down for
me, the generated power is 16 watts. This number will scale up linearly with increase wind
turbine height, with increasing wind turbine diameter. This will go up exponentially with speed.
Another important number is calculated wind turbine efficiency. Usually for VAXT this is in the
range of 20% to 30%. Richard
Followed by a direct email at 4:32pm from Murphy to Thompson;
That's what I got. 16.4 watts
. Followed by an email on 8/28/2008 at 0824 am, from Applicant to Mary Jo Rowan;
Today's Results
Per our conversation after this email. We have in the works a drive system that will
multiply this figure by 80. This is low wind at 15 mph. The drive starts at 7.1 mph with
resistance. This system can work individually or in series with another. This is16.4 watts per
'.
minute. Multiply that by 80 once we get new drive finalized. Figure 60 minutes per hour and
MeHter!Hldtufi 67
h't
using a 3 hour day calculation to work off of. I also figured 345 days per year allowing for no
wind days. This will allow us +1- adjustments that should be close to accurate. Anything above
that I will consider gravy.
Charlie Malouff
CM Energies
Carter and Taylor omitted it was clear this was in the company's earliest stages of study
and testing, and that Thompson and Murphy, who McCoy, Stearman, and the students had no
idea of their roles or requests, were clearly interested in the technology and developments, and
they were requiring more information as it became readily available. McCoy knew this was
different business circumstances, that was temporary, arid related to Key Man issues that related
.,.,
to a legal entity that just began university senior level class projects on studying the validity and
feasibility of a new Vertical Axis Wind Turbine and the Company and professor would have
been without anyone who knew what was happening with legal matters (Company's relationship
to the University and as a corporation), when Applicant had to go to Mexico on short notice for
four days, to an area where criminal activity of kidnappings and murder were at a high. This
stale and irrelevant information was taken out of context and made to look like Mary Jo's
. ,--,
relationship with CM Energies was more than what it was. A reasonably trained investigator
with common sense would have also recognized this after reading the related emails.
: e. r,--.
Dana McCoy, Applicant's daughter and president of the Company, knew this. McCoy
kne~, through discussion of the problem with her and her just getting started in learning the
business and her lack of knowledge of the industry along with the status of the study and testing
stages at the University·of Texas, and with the approval of the company General Counsel, Mike
'.i:
Guevara, since there was no one qualified at that time, to assume authority to give direction and
status of the company's immediate standing and project status in the event of tragic accident.
MeffiOFaHEIHHf 68 .
·1/l
McCoy, Carter and Taylor knew there were many transformations in organizational
structure, and business operations, and this information was over one year old, inapplicable, and
stale information, and Taylor and Carter failed to inform the magistrate of these material facts.
Taylor and Carter had the obligation to inform the magistrate the Grant was a cost
reimbursement grant, and the Grantee, the City of Jonestown, was. not allowed to profit any
funds, but to receive the funds and pass the funds on to the appropriate sub-contractors to
pe1form the work required in the contracted Deliverables, and the money was appropriately spent
and documented; that the American Reinvestment and Recovery Act, ARRA, Stimulus Grants
were to create jobs and stimulate the economy and that the sub-contractors to the grantees, for all
of the award.ed grants were not only allowed, but encouraged to make a profit, and this was not
only publicized on the Department of Energy and Comptroller websites, but the President of the
United States made these assertions on national TV in support of the Act; that Miller was under
',.·.'
investigation for:
Falsifying time sheets on the Grant, falsifying his County time sheets, falsifying the time
sheets of others; Providing the submissions Miller accused Applicant of falsifying to permitting
agencies only to have them rejected because they were patently wrong and not in compliance
with Grant requirements; That Miller, Thomas and Knapek were suspects in Theft of Trade
Secrets, the Destruction of a Federally Funded Energy Project, lt:tdustrial Espionage in the
theft of a laptop used for the Project that contained confidential and proprietary information that
could be used by a competitor for economic gain, Attempted Murder and other crimes; That
Miller and Cook and Graham had falsified their Grant time sheets and Miller and Cook falsified
··r:
their police time sheets as well; that Miller admitted that he nor Cook had never read the Grant
or any of the Code of Federal Regulations that were mandated for NEPA review; That the
submission packets Miller and Cook submitted were rejected by the permitting agencies because
Mememmdnm 6'il
"](
they were done wrong and not in compliance with NEPA, or the Grant, or the contract with the
City of Jonestown; That the Comptroller and the Department of Energy had said there was no
evidence a crime had been committed; That Applicant and his company were actively engaged
in the Grant process, and actively working with the Grantee, the City of Jonestown, to complete
the grant, which still had over 80 days to go until the end of the contract, but could have been
extended up to another year; That Carter did not personally observe Applicant's motorcycle in
Mary Jo Woodall's garage, but observed several motorcycles in the garage with no positive
identification from over a block away, and the information she received from Miller and others
was over a year old and stale.
Applicant spent over 20 of 29 honorable years in law enforcement attending and teaching
similar courses, and the very subject matter Carter claims to have been trained in. (See Exhibit 1,
Charlie Malouff Resume). There were no drugs or guns or danger of fire or bodily injury, other
' . -, " -
~ ' .
·'
than what Carter might have induced, in this white collar case, where the money had been spent
seven (7) months prior, and her primary suspect was actively engaged in both the business and
trying to solve several Federal crimes, where Carter and Taylor could claim any sense of
"exigency". "Impending departure does not create an immediacy, necessity or urgency." United
States v Thompson, 700 F.2d 944 (5 1h Cir. 1983). The Supreme Court stated, "Circumstances
qualify as "exigent" when there is an imminent risk of death, or seii.ous injury, or danger that
evidence will be immediately destroyed.'' Brigham City v Stewart, 547 U.S. 398, 403, 126 S. Ct.
~.-.
1943, 164 L. Ed. 2d 650 (2006). The only "exigent circumstance" was Carter, Miller and
Taylor's
. malicious , selective, and vindictive conduct to keep the Grant from completion, and
~
retaliate against Applicant under the color of authority. Carter had almost a year to investigate
the complaint and only took one day to do her surveillance on Woodall's home, but took no time
to follow Applicant to see where he kept his motorcycle, or that there were no exigent
MeffieraHEIHHi ?Q
71-
circumstances, as claimed by Carter, but defined by the courts, that could have prevented Carter
and Taylor from takin& extra time, or requesting other assistance, to conduct a more thorough
investigation in identifying the license numbers of the motorcycles parked at Woodall's, and
verifying or distinguishing the truth in all of the hearsay, assumptions, beliefs, and personal
opinions without factual basis provided by her "witnesses" and Carter and Taylor could have
waited to submit their application until then. United States v Watts, 329 F.3d 1282 (5th Cir.
2003); United States v Jacobsen, 466 U.S. 109, 104 S. Ct. 1652, 1657, 80 L. Ed. 2d 85 (1984);
Byers v United States, 273 U.S. 28, 47 S. Ct. 248, 248, 71 L. Ed. 520 (1927); Thompson v
Louisiana, 469 U.S. 17, !05 S. Ct. 409, 410, 83 L. Ed. 2d 246 (1984); Katz v United States, 389
U.S. 347, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576 (1967); United States v Ross, 456 U.S. 798, !02 S.
Ct. 2157, 2173, 72 L. Ed. 2d 572 (1982); O'Connor v Ortega, 480 U.S. 709, 107 S. Ct. 1452,
. '.
1499, 94 L. Ed. 2d 714 (1987); Colorado v Bertine, 479 U.S. 367, 107 S. Ct. 738, 93 L. Ed. 2d ·
739 (1987); Schneckloth v Bustamante, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 91973);
. I
Coolidge v New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); Chambers v
Maroney, 399 U.S. 42, 90S. Ct. 1975, 26 L. Ed. 2d 419 (1970); Chime/ v California, 395 U.S.
752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). (See Exhibit 5, 299th District Court Records, D-1-
DC-13-904021-EXH-VOLUMES 1-27, COURT REPORTERS RECORD, D-1-DC-13-
904201_395 CLERKS RECORD, and Exhibit 6, Charlie Malouf! v. United States, A-13-CV-
572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate, Carter Transcript attachment).
'
The cumulative material patently false and misleading statements and material omissions,
would have caused a reasonable jurist to question the validity of the information without further
investigation. The duty under Brady applied. Giglio v United States, 405 U.S. 150, 154, 92 S.
. ,-.·-· :I'
Ct. 763, 31 L. Ed. 2d 104 (1972); Brady v. Maryland, 373 U.S. 83, S. Ct. 1194, lO L. Ed. 2d 215
(1963). Had they been candor with the magistrate and the tribunal there is a reasonable
~luitot aitdtifti71
probability the proceeding would have been different from the very beginning as each stage of
their investigation was an unreasonable application of clearly established Supreme Court law.
In a criminal prosecution is not that it shall win, but that justice shall be done. Holly Taylor
overstepped her bounds of propriety and fairness. Bergerv. United States, 295 U.S. 78, 88, 79 L.
Ed. 1314, 55 S. Ct. 629 (1935).
Our Constitution places in the hands of the trial judge the responsibility for safeguarding
the integ1ity of the jury trial. United States v. Bowen, No. 10-204, U.S. Dist. LEXIS 134434
(2013) WL., quoting United States v. Gainey, 380 U.S. 63, 68, 85 S. Ct. 754, 758, 13 LEd. 2d.
658 (1965).
The trial court has inherent power to the extent necessary to deter, alleviate and counteract
bad faith of the judicial process, this includes any reason the trial resulted in a miscarriage of
justice. United States v. Scroggins, 379 F. 3d. 233 (5th Cir. 2004), vacated on other grounds,
534, U.S. 1112, 125 S. Ct. 1062, 160 LEd. 2d. 1049 (2005).
The court is supposed to be the instrument to advance the ends of justice. When the trial
judge, for personal pecuniary interest, turns a blind eye, the trial, and the fundamental
constitutional rights of due process become unduly prejudiced. "Motives and consequences, not
'";(
formalities are the keys for determining whether a public official entered an agreement to accept
a bribe, and the trier of fact is "quite capable of deciding the intent with which words were
spoken or actions taken aw well as the reasonable construction given to them by the official and
payor." United States v Evans, 504 U.S. 255, 274, 112 S. Ct. 1881, 119 L. Ed. 2d 57 (1992);
United States v Whitfield, 590 F.3d 325, 348-54 (5th Cir. 2009). In Whitfield two state judges
argued the loan guarantees they received were made in the context of their electoral campaigns,
and thus required special protection, but the court upheld a finding the payments were bribes. !d.,
590 F.3d at 353. Here, we have three independent Officers Of The Court, and one of them
."' ,· Mfiffi;;1fffim 72
being her "best friend" making statements, that under the Rules Of Professional Conduct, have
to be taken as true, that Sage made " ... decisions for political contributions and votes." (See
Exhibit 1, Judicial Misconduct and Austin American Statesman news articles) "Through
promises to improperly employ his public influence, he has accepted ·his bribe." United States v
Abbey, 560 F.3d at 513, 520 (6'h Cir. 2009). The donor supports the candidate's election for all
manner of possible reasons. See Buckley v. Valeo, 424 U.S. 1, 21, 96 S. Ct. 612, 46 L. Ed. 2d
659 (1976).
Canon I of the Texas Code of Judicial Conduct states, "A judge should maintain and
enforce high standards of conduct and personally observe those standards to preserve the
integrity ofthe judiciary."
The Texas Code of Judicial Conduct, Canon 3 (B)(2) states, "A judge should be faithful to
the law and maintain professional competence in it. A judge shall not be swayed by partisan
interests, public clamor of fear of criticism." And, (5)" A judge shall perform judicial duties
without bias or prejudice." ·
Travis County 299th District Court Judge Karen Sage violated the Canon's of Judicial
Ethics and Applicant's due process, because she had a personal and financial interest in the
outcome of the case. (See Exhibit 1, Judicial Misconduct and photos of Sage's political candidate
i ;•.
website).
'\ ..
Statements, made by three independent Officers of the Court, regulated by the American
Bar Association Rules of Professional Conduct, and the Texas Disciplinary Rules of Professional
Conduct, can only be taken as true and support Sage's violations of Code of Judicial Conduct
Canon 2: Avoiding Impropriety and the Appearance of Impropriety in All of the Judge's
Activities (A) "A judge shall comply with the law and should act at all times in a manner that
promotes public confidence in the integrity and impartiality of the judiciary"; (B) "A judge shall
Meitrotatldtint73
7 -:7·.
not lend the prestige of judicial office to advance private interests of the judge or others"; Canon
3: Performing the Duties of Judicial Office hnpartially and Diligently (B)(2) "A judge should be
faithful to the law and shall maintain professional competence in it. A judge shall not be swayed
by partisan interests, public clamor, or fear of criticism"; Canon 4: Conducting the Judge's
Extra-Judicial Activities to Minimize the Risk of Conflict with Judicial Obligations (A) Extra-
Judicial Activities in General. A judge shall conduct all of the judges extrajudicial activities so .
they do not: (1) "cast reasonable doubt on the judge's capacity to act impartially as a judge" and
Canon 5: Refraining from Inappropriate Political Activity (1) "A judge orjudicial candidate
shall not: (i) "make pledges or promises of conduct in. office regarding pending or impending
cases, specific classes of cases, specific classes of litigants, or specific propositions of law that
'
would suggest to a reasonable person that the judge is predisposed to a probable decision in
cases within the scope of the pledge."
--,,·.
Sage's decisions to deny Frank's, mistrial, dismissal, and selective and vindictive
prosecution motions after hearing. testimony of persons of public trust aqmit to violating the
Constitution, Professional Rules of Conduct, and state and Federal laws are contrary to and
involved an objectively unreasonable application of clearly established state and federal laws as
determined by both Supreme Courts and the Constitutions of both Texas and the United States .
. ... ·
Three independent Officers of the Court made statement's and observations that the trial
judge, Karen Sage, was first clearly going to make decisions in favor of her "best friend" only to
find out from that "best friend" Sage was concerned with getting political support from the local
Democratic Party for her upcoming re-election only weeks away and by her decisions (See
Exhibit 1, Judicial Misconduct web site photos), were obvious! y contradictory to the
"understanding" of the trial counsel. This demonstration of their cumulative improper conduct,
actuated by Sage's instinct of political survival, was not in the interests ofjustice. Henderson v.
M_emeftl.fl:tittni 74
Perry, 399 F. Supp. 2d. 756, June 9, 2005 (Dist. Ct. 5th Cir) "A judge will, however, violate a
defendant's due process rights if he (she) is biased against the defendant, or has an interest in
the outcome of the case. Personal reward of getting votes and campaign contributions for re-
election is having an "interest" in the case.
According to the Texas Disciplinary Rules of Conduct, Rule 8.02, "A lawyer shall not
make a statement that the lawyer knows to be false or with reckless disregard as to its truth or
falsity concerning the qualification or integrity of a judge." Rule 8.2 "Solely proscribes false or
reckless statements questioning judicial qualifications or integrity." United States v. Nolen, 172
F. 3d. 362 (5th & 11th Cir. Dec. 2006). Applicant does not believe any of the three attorneys
made those statements falsely or recklessly, therefore they must be taken as true. As such,
judicial integrity over the fairness of Applicant's trial, and the eventual plea bargain agreement
of Mary J o Woodall, based on the totality of circumstances of Applicant's trial, and Sages re-
election, she would not have gotten a fair trial, is at issue because Mary J o Woodall never gave
Applicant insider information, or provided Applicant with information that was not authorized
by policy or law (See Exhibit 5, 299th District Court Records, D-l-DC-13-904021-EXH-VOL
12, Pam Groce testimony where she testified "I could have helped him write it" pages 22-23).
-:· ,.
The employees, including supervisors, of the Texas Comptroller, State Energy Office, all said
Mary Jo was doing her job as proscribed by policy and law and there were numerous measures in
place to detect any fraud or wrongdoing. (See ExhibitS, 299th District Court Records, D-1-DC-
13-904021-EXH-VOLUMES 23, 1-27, COURT REPORTERS RECORD, D-1-DC-13-
904201_395 CLERKS RECORD, Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY
' ..
(A-11-CR-647(1)-LY) statement of Lisa Elledge). Not to mention, Martin Cano, the Chief of
Enforcement for the Investigations Division, testified HE, along with an IT person, searched
Mary Jo's work computer and a personal USB, in July, 2011 right after Taylor, functioning as an
.• MemeratiE!Hffi 15
71
"investigator" and Carter, were informed Miller was a suspect in multiple felonies, and gave it
all back to Mary Jo and allowed her to continue working because· there was "no evidence of
wrongdoing", months before the application of the search warrant. Carter admits part of this in
her Affidavit for Search Warrant, but omits the material and significant "no evidence of
wrongdoing", again misleading the magistrate.
The trial court heard the miginal complaint was filed by a Travis County Sheriffs Deputy
who stood to lose his career if they were found involved in the criminal conduct noted above,
and other police officers who also stood to lose his career if they were found involved in the
criminal conduct noted above, their friends. It heard testimony and was presented evidence, the
DA, investigators, Mayor, all furthered the efforts to cover over the investigation and avoid
scrutiny by making patently false statements, omitting extensive material information and
misleading the magistrate regarding Applicant, thus deflecting the initial investigation and
suspending further investigation. Further evidence of Police Misconduct comes short! y after .the
arrest of Applicant in the bad faith actions of the City of Jonestown and the Travis County
'
District Attorney, in failing to preserve exculpatory evidence directly related to the predicate
fraud crime, in the subsequent. destruction of the crime scene, the removal of the Wind Energy
Systems at the Jonestown City Hall, the Waste Water Treatment Plant, and the CM Energies
Wind Energy System located at its manufacturing facility, in the City of Taylor, Texas,
'., •.
approximately 35 miles away (See Exhibit 5, 299th District Court R«cords, D-1-DC-13-904021-
EXH-VOLUMES 1-27, COURT REPORTERS RECORD, D-1-DC-13-904201_395 CLERKS
RECORD, Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY (A-11-CR-647(1)-LY)
2255 Motion to Vacate, Carter Transcript attachment, and Exhibit 1, City of Jonestown City
Council Agenda's and Minutes). Bullock v. Carver, 297 F.3d 1036, 1056 (lOth Cir. 2002); Bohl,
25 F.3d at 909, 910; Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S. Ct. 333, 102 L. Ed. 2d
Melfier!lfiffiiffi 7€!
7& .. ,,·.
281 (1988); California v. Trombetta, 467 U.S. 479, 488, 104 S. Ct. 2528 81 L. Ed. 2d 413
(1984). These acts protected the suspects, numerous memb rs of the Jonestown government, and
the Allen's, personal friends of the Mayor. The trial court heard evidence the above mentioned
conspirators all knew that Applicant was an honorably retir d officer with 29 years of experience
in just such investigations. They reasonably expected th t with Applicant's background, any
illegal activities they had engaged in would come to light.
While the doctrine of separation of powers in a onstitutional scheme of government
prohibit free judicial interference in the exercise of discreti nary powers of attorney's in criminal
prosecutions, the judiciary has always borne the basic resrnsibility- for protecting individual's
against unconstitutional invasions of their rights by the G vemment. United States v Johnson,
577 F. 2d. 1304, 1308 (5th Cir 1978); United States v Fal , 479 F.2d 616, 624 (7th Cir. 1965),
-' .
quoting Stamler v Willis, 415 F 2d. 1365, 1369-70 (7th Cir. 1969), cert. denied sub. nom., !chord
v Stamler, 399 U.S. 929, 90S. Ct. 2231, 26 L. Ed. 2d. 79 (1970). United States v Butler, 297
U.S. 1, 62-63, 56 S. Ct. 312, 80 L. Ed. 477 (1936); Marbu v Madison, 5 U.S. (1 Cranch) 137, 2
L. Ed. 60 (1803); Calder v Ball3 U.S. (3 Dall.) 386, 1 Lans. Ch. d. 648 (1798). See also A. Hamilton,
Federalist Paper No. 78, reprinted in Cook( e) (ed.) The Fe; eralist 521, 524-25 (1961). This case
falls into that rare situation in which the decision to prose ute was so abusive of this discretion
' '''' "( .:q I '' ' . -,' f
because it encroached on Constitutional!~ protected rights ~d the judiciary must protect against
. ...... ... ·. .... ... .. .. I .
unconstitutional deprivations, not tum a blind eye for politifal favoritism .
. Our Constitution places in the hands of the
•
~rlaljud~e the responsibility for safeguarding
, I
the integrity of the jury trial. United States v. Bo;en, 20/13 U.S. DIST. LEXIS 134434 (Sept.
. . .. ., • . I
2013) quoting United States v. Gainey, 380 U.S. 63, 68, ~5
'
S. Ct. 754, 758, 13 L Ed. 2d. 658
i .
I I
(1965).
Under the Due Process clause of the Constitution, the accused in any criminal trail is ·
guaranteed the right to a fair and impartial tribunal. Nethery v. Collins, 993 F.2d 1154, 1157 (5th
Cir. 1993); In re Murchison, 349, U.S. 133, 136, 75 S. Ct 623, 99 L. Ed. 942 (1955); Bracy v.
Gramley, 520 U.S. 899, 905, 117 S. Ct. 1793, 138 L. Ed. 2d 97 (1997)
According to the Texas Disciplinary Rnles of Conduct, Rule 8.02· "A lawyer shall not
make a statement that the lawyer knows to be false or with reckless disregard as to its truth or
falsity concerning the qualification or integrity of a judge." Rule 8.02 "Solely proscribes false or
reckless statements questioning judicial qualifications or integrity." United States v. Nolen, 172
F. 3d. 362 (5th & lith Cir. Dec. 2006).
The trial court has inherent power to the extent necessary to deter, alleviate and counteract
bad faith of the judicial process, this includes any reason the trial resulted in a miscarriage of
justice. United States v. Scroggins, 379 F. 3d. 233 (5th Cir. 2004), vacated on other grounds,
534; U.S. 1112, 125 S. Ct. 1062, 160 LEd. 2d. 1049 (2005).
A "district court is obliged to take measures against unethical conduct occurring in
'
connection with any proceeding before it." In re ProEducation Int'l, Inc., 587 F.3d 296, 299-
300 (5th Cir. 2009). The Fifth Circuit has recognized the ABA Model Rules of Professional
Conduct are the "national standard." In re ProEducation Int'l., 587 E 3d at 299.
The Supreme Court of the United States has found decision makers are constitutionally
unacceptable only when the decision maker has a direct personal, substantial, and pecuniary
--,·. :o··. • ·' ·,
interest in the outcome of the case. Baran v. Port of Beaumont, 57, F. 3d 436, 444 (5th Cir.
1995).
"The Due Process Clause clearly requires a fair trial in a fair tribunal before a judge with
no actual bias against the defendant or interest in the outcome of his particular case. " Bracy v.
Metnm aiidu.tn 9 8
Gramley, 520, U.S. 899, 904-05, 117 S. Ct. 1793, 138 L. Ed. 2d 97 (1997); Buntion, 524 F.3d at
672; Samual v Warden, Avoyelles Corr. Ctr., 51 Fed. Appx. 483 (5th Cir. 2002).
Multiple statements by three independent Officers of the Court regarding the trial judges
decisions made in relation to her direct, personal and substantial pecuniary interest in her
upcoming fund raising kick-off event and re-election only months away at the time of her
decisions, clearly establishes "genuine questions concerning the judge's impartiality." Not only
is this conduct unacceptable, but "our system of law has always endeavored to prevent even the
probability of unfairness." Withrow v. Larkin, 411 U.S. 564, 579, :36 L. Ed. 2d 488, 93, S. Ct.
1689 (1973); In re Murchison, supra, at 136, 99 L. Ed. 942, 75 S. Ct. 623; Tumey v. Ohio, 273
U.S. 510, 523, 47 S. Ct. 437, 441, 71 L. Ed. 749 (1927); Liteky v. United States, 510 U.S. 540,
552, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994), and giving rise, based on the front page publicity
' ..
by the Austin American Statesman throughout the course of the trial,. to the public perceptions of
judicial integrity. Liljeberg, 486 U.S. at 865 n. 12, 108 S. Ct. at 2205 n. 12, 100 L. Ed. 2d at 875
n; Walberg v Israel, 766 F.2d 1071 (7th Cir.), cert. denied, 474 U.S. 1013, 106 S. Ct. 546, 88 L.
Ed. 2d 475 (1985).
This appearance of impropriety has risen to the level of afundamental defect resulting in
a complete miscarriage of justice. United States v. Couch, 896 F.2d 78, 81 (5th Cir. 1990).
"Justice must satisfy the appearance of justice." United States v. Diaz, 797 F.2d 99 (2nd Cir.
1986), later app., 834 F.2d 287 (2nd Cir. 1987), cert denied, 488 U.S. 818, 109 S. Ct. 57, 102 L.
Ed. 2d 35 (1988).
Violating Texas Disciplinary Rule of Professional Conduct Rule 8.03 (a) "A lawyer having
knowledge that another lawyer has committed a violation of applicable rules of professional
conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as
a lawyer in other respects shall inform the appropriate disciplinary authority, and failure to do so
~
8"/
when notified of the infraction by Appellate Counsel, Ariel Payan, who's wife works for the
District Attorney, and who are personal friends with the prosecutor and her husband, in an
already egregiously saturated case of attorney, prosecutor, and judiCial misconduct, has put the
honesty, trustworthiness, and integrity of any meaningful appeal in jeopardy, and in this
extraordinary case, reeks of the furtherance ofmore miscarriage ofjustice.
According to the Board of Directors of the ·State Bar of Texas, Model Rules of
Professional Conduct Rule 8.3 (1983), "A lawyer who knows that another lawyer has committed
a violation of the Rules of Professional Conduct that raises a substantial question of that lawyer's
honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate
authority. Clemons v McNamee, U.S. Dist. LEXIS 36916, May 2008 (5th Cir.); 2012 Bankr
LEXIS 2306, In Re Jarvis Adventure Bldg., LLC., May 2012 (5th Cir). Appellate Counsel, Ariel
Payan, in an email dated 03/21114, stating ...... "Also I think you are misconstruing what WE
told you about the "political" nature of the rulings on certain on your motions ... " admitting the
attorneys did make the statements. It's not the after effect "out of context" but the, at-the-time,
(
and circumstances, and the fact that they made them that is relevant. (See Exhibit 1, Judicial
Misconduct email to Payan dated 5/26114).
As a client, Applicant must be able to trust that his lawyer(s) will provide faithful and
zealous representation. Howell v. State Bar of Texas, 843 F. 2d. 205, 1988 (5th Cir.). Failing to
follow the clients orders to adversarially cross-examine prosecution witnesses, and having
several material and exculpatory witnesses readily standing by to testify, then making a decision
., .
to· rest without putting on a defense in such a high profile case, that made the front page of the
papers daily, and that was inundated with police misconduct, selective prosecution, constitutional
and civil rights violations because the lawyer(s), one of them being the "best friend" of the trail
judge, believe the judge "has her back," who, unless was previously told so by that judge, would
Meffiorafltltiffi 88
$l--
have no way to know how the judge's ruling could go, but made such a strong showing in the
confidynce of that belief, shows a complete disregard for a clients welfare. That irresponsible
and unethical conduct is not trail strategy. Especially when the judge, who personally witnesses
the prosecution committing multiple and ongoing Brady violations, "reviewed all documents and
records as well," listen's to arguments and the testimonies of the Government agents, in and out
of the presence of the jury, admitting to multiple felonies, including the willful and intentional
destruction of evidence that was unique and the most exonerating to Applicant, by the
prosecution team, and other Constitutional and civil rights violations, and who continues to not
stop the trial, except to go teach an ethics and integrity class at the University of Texas Law
School, but rules against Applicant in motions that have clearly provided legal sufficiency in
their claims, and there is still time to present the defense.
Applicant was denied effective assistance of counsel through the failure of Counsel to
conduct sufficient adversarial testing on witnesses who testified against him, and the failure to
call exculpatory witnesses on behalf of the defense.
As a result of trial counsel's expectation of favorable decisions from her "best friend", the
trial judge, Applicant was denied effective assistance of counsel:through the failure of Counsel to
conduct sufficient adversarial testing adversarial testing of:
Travis County District Attorney Investigator, L6ri Carter, who admitted to violating
Applicant's Miranda under oath, and who should have been tested her violation was not just
questioning after Applicant invoked his right to remain· silent; but elicited statements through
coercive threats, threatening to blow up the safes in a manor that lead Applicant to believe Mary
Jo Woodall and her 10 year old grandson would be subjected to serious bodily injury.
Travis County District Attorney Investigator, Lori Carter, testified she gave the SWAT
Teams executing the warrants all of the floor plans and information regarding the occupants of
Memartm:dttnt 81 ·
&;:}?
the residences, and that Lori Carter had no clue that Mary Jo Woodall's 10 year old grandson
was not at her residence, where he stayed over regularly to catch his school bus that stopped
right in front of her house. And, Lori Carter, knowingly and intentionally, told the Williamson
County SWAT Team the room they fire bombed with flash bangs, and caused $30,000 damage
to, was the child's room. (See Exhibit 5, 299th District Court Records, D-1-DC-13-904021-
EXH-VOLUMES 16-19, COURT REPORTERS RECORD, D-1-DC-13-904201_395 CLERKS
RECORD, and Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY (A-11-CR-647(1)-
L Y) 2255 Motion to Vacate, Carter Transcript attachment).
Travis County Dist1ict Attorney Investigator, Lori Carter, in regards to the search warrant
and resulting evidence revolving around an investigation begun prior to this case; former CM
Alternative Energies, Inc., employees Toby Miller, Dana McCoy, Michelle Cook, John Karlson,
Eric Graham, Justin Shepherd, Paul Kuwumura, Aaron Knapek; Texas Comptroller employees,
Pam Groce, Dub Taylor and Lisa Elledge; Assistant District Attorney Holly Taylor, who was
functioning as an "investigator" after July 15th 2011, Jonestown Police Chief, John Stetar, and
Jonestown Mayor, Deane Armstrong, DOE OIG Special Agent Rosemary Peterson, (see Charlie
Malouf! v. United States, A-13-CV-572LY (A-11-CR-647(1)-LY} attached Jonestown Police
Reports and Exhibit 2, related emails and photos) and DOE Program overseer's Barbara
Alderson and David Boron.; And, exculpatory defense witnesses, Howard Reed, and Dan
Dodson, who were readily available to testify but were never called because of the expectation of
counsel's "best friend" to simply rule in her favor. (See Exhibit 1, Howard Reed Affidavit).
Carter and Taylor misleadingly assert Miller first reported as a "concerned citizen" but
then elevated his status to "Deputy Sheriff' in a move to bolster his credibility. What is omitted
is Miller first reported as a Senior Deputy Sheriff for the Travis County Sheriff's Office in his
first complaint to the Department of Energy, (See ExhibitS, 299th District Court Records, D-1-
Mem:Otandum 82
'1rl
DC-13-904021-EXH-VOL 27, DOE OIG Complaint, IGHl0-580, page 537) with the full intent
of using his authority and exercising his credibility as a peace officer; in a "believe me before you
believe him" portrayal to make his complaint and begin his trek to cover his personal crimes, but
was later told there was no crime, and Carter, knowing this, intentionally withheld this
significant omission, and continues to mask Miller's criminal conduct and questionable
credibility.
Counsel failed to continue adversarial testing on Carter's inexperience and reliance on
others to conduct her investigation, her "research" and not "investigative" practices; her usage of
stale, assumptions, speculations, hearsay and other not verified information; her knowledge of
motorcycles; her relationship with the Gunslingers Motorcycle Club; lack of common sense in
, ....
'·'
simple matters, such as, "drop shipping" as it is a standard and common business practice
between suppliers and manufacturer's (see Exhibit 2, Drop Shipping/FOB instluctions from
Grainger, Galls and Northern Safety & Industrial) and that Applicant or Central Texas Plastics
committed no crime, or inappropriate business practice in ordering the Lexan blades from
Crescent Plastics, the extruder; and that if she conducted a thorough investigation, as she
portrayed, she would have known the original PVC blades priced and ordered for the Grant, were
still in inventory in Taylor; and her lack of unbiased investigation in her failure to follow up with
the USFWS, TARL, other permitting agencies; And, more importantly Carter, who claims to be
a qualified Lead Investigator, who in her own words (see 299th District Court Records, D-1-DC-
13-904021-EXH-VOL017), has been an investigator for at least 14 years, but has never executed
a search warrant or independently conducted her own investigation, but always had them handed
to her by other investigators, officer's or agencies, who intentionally did not find the time to
'·, ' ·\·
simply drive up 12 miles from her office, to 4202 Harcourt Drive, off Parmer Lane and Mopac,
less than 15 minutes from Carter's office, to Design's By Amalfi, the embroidery company
MeffierEtHEltufl83
>f-7
whose credit card merchant account is under the business and trade name 'Sassie Lassy" and get
copies of the receipts and invoices, that matched the invoices and receipts at the Comptroller's
and DOE offices, along with an exculpatory and exonerating statement from Fred or Karen, the
owners, that it was not lingerie as she portrayed, but a legitimate business expense in the
embroidery of the CM Energies Jonestown Wind Project Logo (See Exhibit 2). Carter and
Taylor both knew this being they reviewed Mary Jo's work product seized and copied by Martin
Cano, and the invoices and receipts and justifications of the expenditures was all on file at the
Comptroller as part of the audit processing of invoices and payments kept by Mary Jo and the
Comptroller.
On October 10 2011, Carter, submitted search warrant affidavits for the issue of warrants
on the residence of Applicant, Mary-Jo Woodall and four other locations. The foundation
information provided to the magistrate for all of the approximately 27 page affidavits is the same
information. There are over 65 patently false and misleading statements and material omissions
. on the search warrant affidavits. Here are a few of the material omissions:
On p. 22 of the affidavit Carter states this affidavit is based on her personal knowledge
and is true and correct. Carter's testimony in trial proved this to be false. It was not "her"
personal knowledge, but mostly that of others, and she failed to independently substantiate or
confirm information, but simply took their assumptions and beliefs as true. (See Exhibit 5, 299th
District Court Records, D-1-DC-13-904021-EXH-VOLUMES 1-27, COURT REPORTERS
RECORD, D-1-DC-13-904201_395 CLERKS RECORD)
On p. 8 Carter identifies Travis County Deputy Toby Miller. She states Miller made his
initial report as a "concerned citizen" and not in his capacity as a Deputy. Throughout the
document Carter refers to Miller as Deputy Miller. This elevated his status from concerned
: hierirlu aridtrnr 84.
-?iJ
citizen to that of a Deputy Sheriff. Miller is identified in 24 of the 50 paragraphs in a way that
highlights Miller's authority and position of public trust.
Carter and Taylor intentionally omits from the magistrate, key material information
regarding the conduct and credibility of witnesses and the integrity of her office. Carter and
Taylor intentionally omit Miller contacted the Department of Energy to make a complaint and
identified himself as a "Senior Deputy Sheriff' working for the Travis County Sheriff (see
Exhibit 5, COURT REPORTERS RECORD, D~l-DC-13-904201_395 CLERKS RECORD
Defense Exhibit 4) and not as a "concerned citizen." Carter omits Miller is minority shareholder
with no standing or authority in CM Energies Public Venture Funds, LLC., a subsidiary
company of CM Energies International, LLC and other than through the Trade name, CM
Energies, not directly affiliated with CM Alternative Energies, Inc., a Texas C Corporation,
where Miller was actually employed, part-time first for security, then part-time to the position of
Operations Manager. (See Exhibit 2, Archie S. Rogers CM Alternative Energies, Inc.,
Employment Agreement-identical inform to Miller's, whose the Travis County District Attorney
"'!
is still withholding, and identical in form and conditional content to the other employees working
the Jonestown Wind Project.)
• ,-'1-
Carter, Taylor, and Miller intentionally omitted informing the magistrate Miller was only a
·.
minority investor, who signed a Membership Subscription Agreement (see Exhibit 2, Toby
.,
Miller CM Energies Public Venture Funds Membership Agreement) with CM Energies Public
Venture Funds, LLC, knew that CM Energies was actually a recognition Trade name, set up
similar to General Electric, USAA, Proctor and Gamble and others, where the parent company,
in this case CM Energies International, LLC, was affiliated with shareholder ownership in, or
wholly owned subsidiary companies, and the organization is . identified under one
Trademark/Trade Name. Two examples of this are: USAA, whiCh is comprised of USAA
M@Hi.Gra+!Ehim gs
?il
Automotive Insurance, USAA Homeowner's Insurance, USAA Membership Services, USAA
Bank and more but operates under the trade name and symbol, USAA. The other is General
Electric. General Electric has GE Wind, GE Medical, GE Plastics GE Electric, broken down to
light bulbs, medical research and other subsidiaries, but all of them are recognized by the GE
symbol. The actual operational management from one organization, unless by contract, does not
have authority over the other organizations.
Miller and Carter knew this material fact at the time they presented the affidavit to the
magistrate and yet they falsely and misleadingly implied Miller had management authority over
all of CM Energies holdings. They failed to inform the magistrate Miller was not a shareholder,
nor had appointed authority to represent himself as the Operations Manager for CM Energies as
a whole, but only for CM Alternative Energies, Inc., the actual subcontractor for the City of
Jonestown and the Jonestown Wind Project (See E~hibit 5, 2991h District Court Record D-1-DC-
'.
13-904201_395, pages 161-163, States Exhibit 234 CLERKS RECORD). In addition, they
materially omit Miller started his complaints on the same day he found out by the CM
Alternative Energies, Inc., corporate counsel, Michael Guevara, that Miller had been caught
falsifying grant timesheets for himself and several other employees.
<'·
In another material omission, Carter states in her affidavit she interviewed the Mayor of
Jonestown, Dean Armstrong, several times, but fails to inform the magistrate in late December
2008, Deane Armstrong, Mayor, and Dan Dodson, City Administrator, conducted due diligence
on behalf of the City of Jonestown, and went out to The University of Texas, JJ Pickle Center,
··'.
where Applicant was entering into his third semester with the University, validating and testing
his prototype Wind Energy Systems, and met with Professor Stearman, who informed Armstrong
and Dodson the Systems were ready for commercialization. (See Exhibit 5, 299th District Court
Records, D-1-DC-13-904201_395, pages 164-172 CLERKS RECORD).
·. -~iemoritftdurn ·s6
.. '
g~
Carter knowingly and intentionally omitted Armstrong and Dodson physically inspected
the Wind Energy Systems at the Pickle Center and were happy with what they saw and what
Stearman had told them, prior to the City of Jonestown agreeing to do business with Applicant
(See Exhibit 6, Charlie Malouf{ v. United States, A-l3~CV-572LY (A-11-CR-647(1)-LY)
Exhibit l, Stearman correspondence, and Exhibit 2, letter from Jonestown to Mary-Jo Woodall,
SECO January 6, 2009).
Carter knowingly and intentionally omitted more material facts that Miller and Michelle
Cook (another officer) were fired from the Jonestown Wind Project by the Jonestown City
Administrator for their role and conduct in an attempted hostile takeover and breech of
contractual responsibilities for the city's subcontractor (See Exhibit 6, Charlie Malouffv. United
States, A-l3-CV-572LY (A-ll-CR-647(1)-LY) Letter's from Jonestown and CMEI, and Exhibit
2, letter from Dan Dodson to Dana McCoy).
Carter knowingly and intentionally omitted police reports for felonious conduct regarding
Miller and other witnesses as suspects who were mentioned in support of the affidavit.
Additionally, Carter and Taylor omit that other witnesses were part of the law enforcement
community such as, Dana McCoy, Applicant's daughter (Medicaid Fraud Investigator), and
Michelle Cook (police officer).
Carter knowingly and intentionally omitted Miller and Cook were under investigation for
falsifying time cards to cover trysts (See Exhibit 5, 299th District Court Records, D-1-DC-13-
- ..... ,;.
904021-EXH-VOLUMES 16-19, COURT REPORTERS RECORD, D-l-DC-13-904201_395
,·, .·
CLERKS RECORD, and Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY (A-ll-
'· .
. '·
CR-647(1)-LY) attached Employee Time Sheets).
Carter knowingly and intentionally omitted Miller and Cook worked and accounted for
their time on the Jonestown Wind Project while they were on duty for the Sheriffs .Office and
· Memot !tfidttfl'i 87
~'1
police dept. respectively. Miller was shown his time sheets for both the Grant and the Travis
County Sheriffs Office and admitted, under oath in trial that he falsified the documents. (See
Exhibit 5, 299th District Court Records, D-1-DC-13-904021-EXH-VOLUMES l-27, COURT
REPORTERS RECORD, D-l-DC-13-904201_395 CLERKS RECORD, and Exhibit 6, Charlie
Malouf! v. United States, A-13-CV-572LY (A-ll-CR-647(1)-LY) 2255 Motion to Vacate,
Supplemental Response)
Carter knowingly and intentionally omitted that Travis County District Attorney Public
Integrity Unit Supervisor, Greg Cox was aware of allegations Miller had committed felony
crimes and was suspect in others and was a friend of Miller who helped to shelter Miller form
criminal charges (See Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY (A-ll-CR-
-,~,,
647(1)-LY) attached Toby Miller Constable Facebook) .
'· '. . •·,
Carter knowingly and intentionally omitted that Chief of Police John Stetar approached
Carter and Holly Taylor (Ass. DA who left her role as a prosecutor and undertook the role as
--·
..
"investigator" (see Exhibit 6, Charlie Malouf! v. United States, A-13-CV-572LY (A-ll-CR-
647(1)-L Y) attached Field Observations-Chief Stetar, and Exhibit 2, reflective photo of Holly
Taylor taking photo of electric meter, clearly identified by her dark hair (Carter has bleached
blonde) and her wedding ring and jewelry, who know they were "obviously" investigating, twice
and informed them that Miller and Cook were suspects in an open criminal investigation
regarding espionage and sabotage of the Jonestown Wind Project, corruption, fraud, theft, and
moonlighting while on force time. These statements are on the Supplemental Police Report that
Lori Carter submitted to 299th District Court Judge, Karen Sage, who reviewed written reports
r
and other evidence for information the DA wanted redacted, but Applicant's co-defendant's
\l • ~· ::. .
attorney, Joe Turner, wanted on the record, in a hearing in June 2012. The copies of the
· Memerandttm 88
1'
Supplemental Report pages are also on file in Exhibit 6, Charlie Malouffv. United States, A-13-
CV-572LY (A-11-CR-647(1)-LY).
Carter knowingly and intentionally omitted the material fact Chief Stetar also informed
her, and Assistant DA Holly Taylor, another "key witness," Shelby Thomas, was an arson
suspect for insurance fraud and a suspect with Miller in the theft of a computer associated with
the wind project, and theft of surveillance cameras set up to catch the saboteurs (who had to be
insiders due to the intimate knowledge required to incur the damage. (See Exhibit 6, Charlie
Malouff v. United States, A-13-CV-572LY (A"11-CR-647(1)-LY) attached Jonestown Police
Report, Insurance Claim, and associated emails).
Carter knowingly and intentionally omitted the material fact that Stetar, at the time of the
application for the affidavits, failed to properly investigate these crimes and additionally failed to
investigate Paul Allen (the property caretaker), who claimed to know who had done the sabotage,
and was in trouble with the City Manager, Dodson and the City Counsel for his failure. (See
. Exhibit 6, Charlie Malouff v. United States, A-13-CV-572LY (A-11-CR-647(1)-LY) 2255
Motion to Vacate)
Carter knowingly and intentionally omitted the fact Stetar was given evidence that Toby
Miller had slashed Petitioner's front motor cycle tire in such a way as to explode under heat and
,.
speed (see Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY (A-11-CR-647(1)-LY)
attached Jonestown Police Report), and Carter was given a copy of that report.
Carter intentionally omitted her "surveillance" of Woodall's home and garage, in her
almost year long investigation was all conducted on one day and from a distance with no positive
identification of vehicles or persons. Carter but stated in her affidavit, she ''personally observed"
Applicants Harley Davidson in Woodall's garage. Carter testified under oath in the 299th
District Court this was patently false, that she was over a block· away, and made only an
Memora£E!Hffi 89
.ql,. . ,.
assumption because she saw a black motorcycle parked in the garage. And, she admitted she
failed to tell the magistrate she had information that Applicant had not left his Harley in
Woodall's garage in over a year. (Clerks Record, D-1-DC-13-904021_395, page 349, and
Exhibit 2, photos of Applicant's motorcycle and motorcycles in Woodall's garage)
Carter knowingly and intentionally omitted Applicant was not employed by the City of
Jonestown, or CM Alternative Energies, Inc., at the time of the submission of the Grant, and that
· Dana McCoy had informed her that at the time, she was the President of the Company and
actively participating in its operation, to include signing payroll and other corporate and Grant
· documents.
Carter knowingly and intentionally omitted Miller never read the Grant or any of its
requirements or any contract between the City of Jonestown and CM Alternative Energies, Inc.,
and had no idea what the company was legally obligated to, and for a person who was supposed
to be in a position of authority, had no idea about what he was talking about.. Miller, who made
sure he was known in a position of public trust and authority as a deputy, knew this was relevant
and material information for the magistrate (See Exhibit 5, 299th District Court Records, D-1-
DC-13-904021-EXH-VOLUMES 1-27, COURT REPORTERS RECORD, and D-1-DC-13-
' • 'I' ;_ ' ' • ~
904201_395 CLERKS RECORD).
Had Carter informed the magistrate of these material omissions, and not made up patently
false and misleading statements in an overzealous and vindictive prosecution, the magistrate
would have been left with serious doubt of the credibility of Miller and no probable cause.
,,- .. - .,
When all of the patently false and materially misleading statements are taken away, and material
omissions revealed, the magistrate is left with these facts:
1). Charlie Malouff and Mary Jo Woodall are long time friends who had sex and took trips
together.
· Mem:erfl'iiaHHI: 90
41--
2). Charlie Malouff is an entrepreneur who had previous experience with the government,
including grant writing and award, and as a sole source contractor. (See Exhibit 5, 299th
District Court Records, D-1-DC-13-904021-EXH-VOj:.,UMES 1-27, COURT
REPORTERS RECORD, D-1-DC-13-904201_395 CLERKS RECORD, and Exhibit 2,
photos of Charlie Malouff's ballistic material and research and development projects).
3). Charlie Malouff had his technology studied and tested at a prestigious institution by
senior Aerospace Engineering students, grad students and professors who stated the
technology was ready for commercialization (See Exhibit 1, Stearman email and letter, and
Exhibit 2, photos)
4). The City of Jonestown did its due diligence and this was submitted to the DOE via the
Grant.
···''
5). The City of Jonestown and CM Energies complied with the Code of Federal
Regulations on Sole Source procurement (See Exhibit 2, Sole Source letter submitted in
Grant, and Exhibit 5, 299th District Court Records, D-1-DC-13-904021-EXH-VOLUME
24, pages 67. 94-96), and was in compliance in all stages of the Project.
6). The Project was under the direct and ongoing oversight of the. DOE at every stage of
the process, monitored by monthly reporting and onsite audits, which Applicant assisted in
and was physically present for, and the mandated design changes were required by Federal
officers for permit approval. (See Exhibit 2, before and after design changes, June 28, 2010
Monthly Report, and testimony in Exhibit 5, 299th District Court Records, D-1-DC-13-
904021-EXH-VOLUMES 1-27, COURT REPORTERS RECORD, and D-1-DC-13-
904201_395 CLERKS RECORD).
7). Miller, Cook, McCoy, Graham, Guevara and Karlson submitted unauthorized
Environmental Assessment packages for permitting and were rejected. (See Exhibit 5,
M€!msr!tll:dttm4l1
13."
299th District Court Records, D-1-DC-13-904021-EXH-VOLUME027, page 242, Exhibit
266).
8). Miller, Cook, McCoy, and Karlson attempted a hostile take over of the Company and
Intellectual Property they had no "interest" in. (See Exhibit 6, Charlie Malouff v. United
States, A-13-CV-572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate, Secret Meeting
transcripts).
9). After finding out Miller and Cook were falsifying timesheets, Guevara, who had done
nothing unethical or wrong, other than crossing Toby Miller and being accused of being a
"traitor" disassociated himself with them and continued on in the interest of the
Corporation as the General Counsel.
7). CM Energies was "ready to go" and implemented the process, in compliance,
immediately after award. (See Exhibit 2, photos, Exhibit 5, 299th District Court Records,
D-1-DC-13-904021-EXH-VOLUMES 1-27, COURT REPORTERS RECORD, D-1-DC-
13-904201_395 CLERKS RECORD, and Exhibit 6, Charlie Malouff v. United States, A-
13-CV-572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate)
8). The Project was first compromised by the criminal conduct of Miller, Cook, and others
and subsequently compromised by Aaron Knapek, at the expense of the subcontractor.
(See Exhibit 1, Dan Smith emails, Justin Shepherd accounting documents, and Exhibit 3,
Knapek emails and Diversified Technology invoices).
9). Applicant was actively engaged in international business development, making his
product, commercially available both prior to, and after the Grant submission (See Exhibit
1, "Panama" presentation, and Howard Reed Affidavit)
10). The Wind Energy System at Taylor sustained damage from a lightning strike and that
damage was considerably different and less than the sabotaged Systems in Jonestown (see
Exhibit 2, photos)
11). Mary Jo Woodall was authorized by policy ,and practice to assist with writing the
Grant and giving assistance in the Grant implementation. (See Exhibit 5, 299th District
Court Records, D-1-DC-13-904021-EXH-VOLUMES 1-27, and VOLUME 12, Pam Groce
Testimony page 22-25, and COURT REPORTERS RECORD, D-1-DC-13-904201_395
CLERKS RECORD)
12). Mary Jo Woodall had no direct involvement in the selection of the Jonestown Wind
Project and did not write the checks for any disbursements. These processes were
conducted and approved by multiples of others. (See Exhibit 5, 299th District Court
Records, D-1-DC-13-904021-EXH-VOLUMES 1-27).
13). SECO personnel attended the study and testing of the System at The University of
Texas, met Applicant and the students, and were aware, at all levels of the Comptroller
administration, of the several year long relationship of Applicant and Mary J o Woodall.
! ••
(See Exhibit 5, 299th District Court Records, D-1-DC-13-904021-EXH-VOLUMES 1-27).
14). The Grant was a cost reimbursement project and any. internal problems of the
subcontractor's were the subcontractors responsibility, and not the responsibility of
Grantee, the City of Jonestown, the Comptroller or DOE. And, there were no provisions
for cost overruns to be billed back to the Project.
15). The Project was cut short 82 days by the overzealous and vindictive conduct of the
prosecutor. (See Exhibit 5, 299th District Court Records, D-1-DC-13-904021-EXH-
VOLUMES 1-27, COURT REPORTERS RECORD, D-1-DC-13-904201_395 CLERKS
-._ ·.· -·n
Memeftffi373 U.S. 83, S. Ct. 1194, 10 L. Ed. 2d 215
(1963); United States v. Agurs, 427 U.S. at 109-110, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976)
(Evidence must both possess and exculpatory value that was apparent before the evidence was
destroyed, and be of such a nature the defendant would be unable to obtain comparable evidence
by another reasonably available means); Bullock v. Carver, 297 F.3d 1036, 1056 (lOth Cir.
2002); United States v. Bohl, 25 F.3d at 904 (lOth Cir. May 1994); Arizona v. Youngblood, 488
U.S. 51, 57-58, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988); California v. Trombetta, 467 U.S. 479,
488, 104 S. Ct. 2528 81 L. Ed. 2d 413 (1984) (" ... when evidence has been destroyed in violation
of the Constitution, the Court must choose. between barring further prosecution or
suppressing .... the State's most probative evidence." Trombetta, 467 U.S. at 487. See also
United States v. Fletcher, 801 F.2d 1222, 1225 n.3 (lOth Cir. 1986)). The uniqueness of the
Wind Energy Systems, and being able to connect a duplicated generator of the intended design
was the only way to prove innocence, as the allegations were that the "Wind Energy Systems"
did not work, and to maliciously destroy exculpatory evidence irreparably violates Applicant's
due process rights under Brady and undermined the confidence in the outcome of the trial.
United States v. Bagley, 473 U.S. 667, 678, 87 L. Ed. 2d 481, 105, S. Ct. 3375; United States v.
Abello-Silva, 948 F.2d 1168, 1179 (lOth Cir. 1991) (same), cert. denied, 113 S. Ct. 107 (1992).
There are several cases the Supreme Court and in this circuit that exemplify situations
where police misconduct, abuse of power, or cover up of crimes violating state and federal law's,
and reckless disregard for constitutional rights were a major factor in the proceedings. United
. (·
States v. Causey (1999, CAS La) 185 F.3d 407, cert den (2000) 530 U.S. 1277, 120 S. Ct. 2747,
147 L. Ed. 2d 1010; Imbler v. Pachtman, 424 U.S. 409, 47 L. Ed. 128, 96 S. Ct. 984 (1976);
United States v Dise (1985, CA3 Pa) 763 F.2d 586, cert den (1985) 474 U.S. 982, 88 L. Ed. 2d
341, 106 S. Ct. 388; United States v Martin, 615 F.2d 318, 329 (5th Cir. 1980); lfnited States v
1',4emgt:aDdnm·-122
!Vi
Pope, 452 F.3d 338 (5th Cir. 2006); Kingsland v City of Miami, 382 F. 3d. 1220, 1232 (llthCir.
2004); Whiting v Taylor, 85 F.3d 581, 585 n.5 (11th Cir. 1996); Fikes v. City ofDaphine, 79 F.
3d 1079 (11th Cir. 1996); Connick v. Meyers, 461 U.S. 138, 146, 103 S. Ct. 1684, 1689, 75 L.
Ed. 2d 708 (1983); Rankin, 483, U.S. at 384, 107 S. Ct. at 2896; Morgan v Ford, 6 F.3d 750,
754 (11th Cir. 1993), cert denied U.S. 114 S. Ct. 2708, 129 L. Ed. 2d 836 (1994); Bryson v City
of Waycross, 888 F. 2d. 1562, 1565 (11th Cir. 1989); Morales v. Stierheim, 848 F.2d 1145, 1149
(11th Cir. 1988), cert denied, 489 U.S. 1013, 109 S. Ct. 1124, 103 L. Ed. 2d 187 (1989.
Federal courts have the right to issue writs of habeas corpus based on state commitments,
even where state remedies have not been exhausted. Minnesota v Barber, 136 U.S. 313, 34 L.
Ed. 455, 10 S. Ct. 862, 3 Inters. Com. Rep. 185(1886); Minnesota v Brundage, 180 U.S. 499, 45
L. Ed. 639, 21 S. Ct. 455(1886); Ex-parte Royall, 117 U.S. 241, 29 L. Ed. 868, 6 S. Ct. 734; Re
Wood, 140 U.S. 278, 35 L. Ed. 505, 11 S. Ct. 738(1891); Cook v Hart, 146 U.S. 183, 36 L. Ed.
934, 13 S. Ct. 40; Markuson v Boucher, 175 U.S. 184, 44 L. Ed. 124, 20 S. Ct. 76; Davis v
Burke, 179, 27 S. Ct. 459; Yick Wo v Hopkins, 118 U.S. 356, 30 L. Ed. 220, 6 S. Ct. 1064
(1886).
A court may dismiss an indictment if it perceives Constitutional error. It may draw on its
supervisory powers to dismiss an indictment. United States v McKenzie, 678 F.2d 629, 631 (5th
Cir. 1982; United States v Holloway, 74 F.3d 249, 253 (11th Cir. 1992); United States v Mills,
995 F.2d 480,486 (4th Cir. 1993); United States v Isgro, 974 F.2d 1091, 1094 (9th Cir. 1992).
These proceedings and the cumulative conduct therein, in the totality of circumstances,
I i ·.
manifested a "miscarriage of justice." The fundamental, and prejudicial injustice resulted from
the cumulative conduct of the police admitting to covering up their own criminal conduct, the
defense and appellate counsel, and prosecutor who flagrantly, and egregiously, violated the
Rules Of Professional Conduct and the Constitution, and the trial judge, who herself shamelessly
~feworandttm 123
I t-7.
violated the Rules Of Professional Conduct, and Judicial Canon Of
Ethics, and the United States Constitution, for self-serving pee-
uniary interest in the selective, and vindictive targeting, and
prosecution of Applicant for a crime he did not commit, and denied
Applicant the opportunity to exonerate himself in violation of
established Federal laws, and the United States Constitution.
Further proof of Prosecutorial Misconduct in this miscarriage
of justice came on October 1st, 2014, in the testimony of Travis
County Assistant District Attorney, Holley Taylor, the State
Prosecutor, in an Evidentiary Hearing in the United States Dist-
rict Court, Western District of Texas, Austin, when she, after
being admonished by Judge Andrew Austin, for avoiding answers,
admitted, in addition to having been told by the Chief Enforce-
ment for the Texas Comptroller's Office, The Texas Attorney Gen-
eral, the Department of Energy, and several prosecutor's in her
office who refused to take this case bacause it reeked of a dis-
gruntled cop who got caught committing crimes and retaliation, to
'functioning" as an investigator and not as a prosecutor,, On July
15th, 2011 and then after, taking photos, gathering evidence, and
interviewing witnesses, before she had any meaningful evidence,
including reviewing the search warrant affidavit "several times·
before it was submitted to the 11\agistrate", and knowingly, and
intentionally knew it was drafted and submitted, inundated with
patently false, and misleading statements, and material omissions
designed to mislead the Magistrate.
Further proof of Police Misconduct in this miscarriage of
justice came in the same Evidentiary Hearing when Travis County
MemGENlaum 1 24
I"V17
Sheriff's Senior Deputy, Toby Miller, admitted he got caught falsi-
fying time sheets on the Federal Grant ani he had a grudge against
Petitioner.
Travis County District Attorney Investigator, Lori Carter, also
testified in the same Evidentuary Hearing and after bein3 ad-
monished by Judge Austin for avoiding questions, that Holly Taylor
was out "investigating" with he;: on July 15th, 2011 and continued
to investigate with her thereafter, and Carter intentionally vio-
lated Petitioner's Miranda Rights after he was arrested.
CONCLUSION
Wherefore, in consideration of the totality of circumstances
and in the interest of justice, under the Due Process laws of
Article 1, Sections 8, 9, and 10 of the Texas Constitution and
the Fourth, Fifth, Sixth, Ninth and Fourteenth Amendments to the
United States Constitution, and in the prevention of the further-
ance of a miscarriage of justice, Applicant respectfully prays
for injunctive and declatory relief and moves the Honorable Court
to VACATE the conviction and REMAND for a Constitutionally valid
'i)tSfYJI>$ lUi'IH ~U~;.l(;€ C>fl GfU:x.JilD$ 0~ .4-c:::rv::<-1 lVllflOc:!!... C~Ufo;l .1- l.U\1-?
I - A ....., ~.-:s •t-'ce;IM- A p~u A~JC> ~lA" ... fA.{XR. ::r: I?E5(~UL.Ly !2£qi~r
j\)at ID(L\ \)l-/ TV ~'1 1 Z>O ~-. 1"
\ n ~· ~ T';l I~ Jl)Jf::> 617-f$12 CoJJS ;Oi!'R..qr;cq:s, '"' rit/ $.
(VIOP '::'7c.tl-r7ofJS
i.-/-) ,e; P9 As '(ZJ r=o .... v· J ;;> { ( IJ-•
r::. ob~c~p..)C:,. 6oul?Of21UMt=:~ /Y)ISQ::!rJ;;;VC/.
/1 ,,.,/. •.-r=-c;P'SC Aa,A-)YJS.r"
~fi,C/1-779'? .+>JP LP/Itre:Y- De.r· .--, .
.:;::. I(AiJE: f?€e,.J ~ /7!Step17o/J£ C.VN7Mvnl69'rt0/JS ??> 'l::>.t/-1€. If.:> S'~, _1:: H/11/e:" fl.»
7/tnel.J-;' Ov1""5tD£ !f<;;<5.t.S.'(l/).)<..£~ ~ 1)<:1 IJdT KNiJ1 '/bE
jo'i/fur o{ 0/2CIA'I•tSh?(lf,itS..1 (ou Ll/.0 /Z£-cpo.i fill'! W1Z.1r; Ptt.eD i.m'J£/L /lll7//.<:l7;
1
'(l:J /!£CLJ(}~Q.. 1'17£ £j(JJ,b;+s., 1/IJ:> .T P<> tJor H-AvE Re~~ 1/:Cc.GS:s 10 171.!::'11?. /IS Sue-If_;
Se-..ur w!UTTCI!J U/f1..12.c5(A:nOGIXif". '(lJ fA-7 ,_
;:;:: HAV£ IN""' ::oMC 6/Je 4101 'L/' rz;
k/TeiVJpl fu EC£CTtzomutU'J Subni.i 7/,eA/1 /b ~ CO<--Ca.-r on lh? Bt:::h,.,z..-;z.
?let% f/<:J::£pr J7tiS1 fllO Stj $UfJj)it::/YlE.Vr/ll- 'fStZtt:.!=, rr Is. tM'( U11D£/2Srt/f'J't>10f
U11DE:Q.. cc.P /}!Lr: if'i 3~ t-iEAtlJI\~ ~ AppCLUJn::: (1<-Q,, F/L£ rk'e jJ-tL-n£5. /YJA'l
5iJ:::~t '' ~~fPL£ MEPTA '- tSrut=Fs,. 11-S. 7116'/ /VIII( OOrrze tl£-~tiu: ~e D'he ts s 0 b-
{i!rfft;o 7D me: C,uz.r.
I roc...D11!-5 }-)0 Ui?CC.fl..17h>1 %ll..wls, l3-y ;YIS.612e.Cn,t.A;......::. t~~ Cj¥:fbu/.:;pf4.
'-1/.f$
TillS Msfi·lu-hM d~.-. tJcrr-f;.do...J MM4-'/es ~ /VlAKI: /fi·Y P~Pr<:> Cbp.1c~ Ur;11-~
orz.. (fillcfZuJJS£.. IJ:s. s-~ t:: (o4t11/Jor 771?'1t[L'7 IYIAIC~ Copt€:5 (b
SCe.v'? uf6.?
/He f'ZDSt.CUJo/L.. Z: f?e->pcc-rFoc...Ly /2£9ur5> r f1SS•">TIJ,t~c£ F/2.cwt /fiC {);:.oil:/
//1 (;em...,; It Lc!f oJ:: J7-ft<.. S-vPf!t.M£.A..rr,rrL pJZt t;7f=. .1/1"1:> i;kh. b,fs _,:s flrL y
(oMC /"'- Stt2t10) DYI 717C Pllost.Gv7l7/l.....
r A-.rY\ 0"''7 fVI-y ~sr y'~ flon,pl2l unv~ £V\~ i5R..T:>tt7.~?12'7 CI~&;&/J??Sr'.t?'"c:e!,.,
7° Co/J?pl7 ().J ,-r,. C=-r- !2vt~ /IILP> ?llei/GPr lf/.J't' fVJC(2.:7[. De:'-4-rs '"' ~s:c
f{b!JC.e,t;"()J"'/ s 7Jb17 Fua..n~Ea... 77i-/S Mt!.C/.f£./2..u4'jT: oF~Shcg;-_ .
;[" f/k.A'? i=o/L. yot.#- €oy;S.r0£(lrrr;cn AM::> 7)rUCrr£7> ,Efss.t::>771A/cg: lfS 1Jo;DCl>-
fispcci7:::,AL7
Q o RECEIVED
MAR 0 9 2015
~!iF /IN!-t.-ouk
THIRD COURr OF APP&\lS
-roc. ~ t? 7& l!i7 v - JEFFREY D. KYLE
/.foL.m"'1 -r;b~.IJG;eJZ lfl>·r
ZC( s- ..TH- lfs- N.
HU"'T 11- 3( 1 • ..:C: l·f4-u&
'\D Go tl+i2o vi lA. 1'1tL LAw l1 6!24-f'Z-( ~ok... Elhl~cpE"s t'-\--I00
9o~Al~ AS r AJ!JL lf\fi)tj £:1-J'(: YIN[ LWR-z·tre.0 12£-t~L
w.o.<7 O..rz+vrV)ec:J7 -tv lfYlt:: on 3 -z__ 4s A D-e[
L .....> L.t <:, . =t 111 en C--.., "J'ff-15'
A ~ Su~<.l)-6612_ w~ 1Yl ~62.-;M ii- :D D F {VI{ 1:S-r
f2f/.l vr 57 fJ t--D -~ ....... , _,
'·-b ' rtt:/~ I> A 'TI]IVJ£-t;> rf?-z/.....lYI) or, 2/ZS·
:,~~ - 15'
r HAVe> )l.h.A.!N ~ DE:;I'0181./ A~ TD "R:BtNS£ /J.ND
~N\IIewq87J .:C !+Me ~ e>11fi3i.) A 'Fi9(2.!Ynt)--1... J2lf;QU1:!:/7r/ C0V1·'1fl.A4 {\)/
~ \fVVJ.~o(2. CA.~Jn~, :Pe. (2...5<::»'1 "1:..1 l2£"17 TV Til-£ Yf+-{l..b
~[ ' A-tJ'":> i--T \0 C..0().-r:/-C-r GA.s-Tc....C'Bl:::.-(2(2..1 u-.>:512£' t)e;::"-..v t£1> ....
"3, <-i- Js
/Y}Q('-..!VJ( Ttt ,;. 15!21E:f" /5 ;;&~ke-z>' ph&..P Jl-,
'fR-J'.i!;<:Y? fYJc.;- 1 ::;~k"""'Y/7 o-t ~ lh2-s 3-1 -I~
~/
.... ,
"
)"
~: ~
'•
:------
__,
tr
~
j~·
('- - '
~'
~
1\ ?.-'>-;
~_j
I
t
'/
)Y· \/1
......l
\X "!
\~
......
~ o_
o_
.,.
\~
~
~
~