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Subject: the L word

Written By: MarthaDTox on 04/25/04 at 9:19 am

I was thinking of continuing with the L word thread .. did it take up too much space Chucky? is it worth doing??

Subject: Re: the L word

Written By: philbo on 04/25/04 at 2:47 pm

I thought it was rather fun...

Subject: Re: the L word

Written By: John Jenkins on 04/26/04 at 7:51 pm

I enjoy reading the thread... just when you think that there cannot be another outrageous law suit, you find it!

Subject: Re: the L word

Written By: MarthaDTox on 05/04/04 at 5:16 pm

er... I don't think so.......

........The plaintiffs have spent and are still spending substantial sums of money on acquiring and exploiting copyright, trade mark and other rights in connection with a pictorial representation of the business end of a shark and the accompanying slogan "JAWS." The rights of the plaintiffs are valuable and ephemeral, depending as they do on the current blood-curdling success of a book and a film whence they are derived. One device, which happily combines advertisement and exploitation of the plaintiffs' insignia, consists of the manufacture under licence of T-shirts, the present juvenile uniform, bearing on their bosoms prints of the Jaws picture and slogan. Jaws T-shirts, as they are called, display in a manner which would appeal to Tom Sawyer at once the wide knowledge and innate ferocity of the wearers. But wearers of T-shirts are notoriously fickle. At any moment, for example, their appetites, satiated with sharks, may demand a pictorial representation of our next Prime Minister or of one of Her Majesty's judges.

Subject: Re: the L word

Written By: MarthaDTox on 05/04/04 at 5:18 pm

One to show your teenage daughters .. in case they were under any illusions as to the definition and true nature of night clubs!

"it can be said that Annabel's Club provides facilities to men for dining and dancing with female partners--though not in the sense that they are made available on the premises, as is the case, I understand, in some or perhaps many night clubs, where they are known as "hostesses". Turning it round slightly, Mr. Schock's business is concerned with supplying for men facilities of female partners for the purpose, among other things, of dining and dancing with them."

Subject: Re: the L word

Written By: MarthaDTox on 05/05/04 at 3:37 am

by the way ,,, thanks for the support John and Phil... I have been v busy at work and also have had problems with viruses in my system but plan to continue with the thread now..although I also need to track down some new material  l.. have almost run out of exisiting stocks!

Subject: Re: the L word

Written By: MarthaDTox on 05/05/04 at 3:41 am

someone needs to do some serious money laundering.......

"the evidence showed the various quanities of currency obtained by Velasco was dirty and gritty  leading to the reasonable conclusion by the jury that it had been in contact with cocaine under such conditions that cociane residue adhered to it. Velasco testified that the money was always extremely dirty with a powdery substance on it. Each time he counted it with a machine a little cloud of powder arose and he got headaches"

Subject: Re: the L word

Written By: marthadtox2 on 05/06/04 at 8:57 am

(This is the same marthadtox ..just using a different computer..)



SCHEINDLIN, District Judge.
Who would have dreamed that the Mayor would object to more publicity? But that is what this case is all about. Our twice-elected Mayor, whose name is in every local newspaper on a daily basis, who is featured regularly on the cover of weekly magazines, who chooses to appear in drag on a well-known national TV show, and who many believe is considering a run for higher office, objects to his name appearing on the side of City buses

Advertisement placed by magazine on sides of city buses, using mayor's first name and stating that magazine was the only good thing about city for which he had not claimed credit, did not violate New York statute prohibiting use of living person's name for trade purposes without person's written consent;

Section of city charter prohibiting public servants from engaging in business that conflicted with proper discharge of duties was not valid basis for city to request removal from city buses of advertisement, placed by magazine, which made fun of mayor's alleged penchant for taking credit for all of city's accomplishments;


On April 12, 1984, Penthouse submitted a proof to Subways Advertising of a poster advertising the magazine's June issue. The poster featured a caricature of Walter Mondale by political cartoonist Uri Hofmekler. The figure, wearing a medallion labeled "ERA Yes" around his neck, was portrayed as an almost nude male "stripper", with female hands reaching up toward his unclothed thighs.

did defendants violate plaintiff's First Amendment rights by refusing to display the Penthouse advertisement within the New York City subway system on the ground that its content is "offensive"? Plaintiff claims that it was unfairly denied *1344 access to a public forum due to the political content of its mess(age, and that this selective exclusion was not justified by any compelling state interest


Furthermore, it is undisputed that defendants accepted and displayed at least two other Penthouse advertising posters bearing political caricatures--one of Ronald Reagan and the other of Leonid Brezhnev.

advertisements by Penthouse showing "attractive women in relative stages of undress or what-have- you"  and an advertisement bearing another Hofmekler caricature of Leonid Brezhnev attired only in a "G-string." The Brezhnev poster, another Hofmekler creation, depicted the Soviet leader even more scantily clad than Walter Mondale in the poster here at issue.

But they distinguish the Mondale poster and their treatment of it on the ground that it is the only advertisement to "suggest overt sexual activity."

Subject: Re: the L word

Written By: marthadtox2 on 05/06/04 at 9:00 am

Long hair again..........

One's hair style, like one's taste for food, or one's liking for certain kinds of music, art, reading, recreation, is certainly fundamental in our constitutional scheme--a scheme designed to keep government off the backs of people. That is not to say that the police power of the state is powerless to deal with known evils. An epidemic of lice might conceivably authorize a shearing of locks. Other like crises might be imagined. But I see no way of allowing a State to set hair styles for patrons of its schools, any more than it could establish a welfare system only for men with crew cuts and women with bobbed *1045 hair. Once these lines are drawn, a serious question of equal protection of the law is raised.
This Court takes judicial notice that hairstyles have altered from time to time throughout the ages. Sampson's locks symbolically signified his virility. Many of the Founding Fathers of this country wore wigs. President Lincoln grew a beard at the suggestion of a juvenile female admirer. Chief Justice Hughes' beard furnished the model for the frieze over the portico of the Supreme Court of the United States proclaiming 'equal justice under law.' Today many of both the younger and older generations have avoided the increased cost of barbering by allowing their locks or burnsides to grow to greater lengths than when a haircut cost a quarter of a dollar. 'Whether hair styles be regarded as evidence of conformity or of individuality, they are one of the most visible examples of personality. This is what every woman has always known. And so have many men, without the aid of an anthropologist, behavioral scientist, psychiatrist, or practitioner of any of the fine arts or black arts.' Richards v. Thurston, D.C., 304 F.Supp. 449, 451.In the 1920's the fad turned to short hair:
'To conservatives, short-haired women were as much 'radicals and freaks of society' as long-haired musicians, artists, and anarchists. Some saw in bobbed hair a symbol of all the ills of the age, ranging from jazz, short skirts, sexy movies, the automobile, and prohibition to such threats as 'Freudian psychology' and the 'growing cult of the so-called free woman.' The boyish bob, followed by the shingle and bingle which shaved the nape of the neck, and then by the curly bob and spit curls, were all part of what the older generation denounced as 'Flaming Youth.'
'Preachers took to pulpits to warn that 'a bobbed woman is a disgraced woman.' In a Missouri courtroom, a mother pleading for the return of her six children who have been living with a guardian heard the oldest of them testify to the judge: 'We don't believe mother is a Christian woman. She bobs her hair.' Men divorced their wives over bobbed hair. Other males banded together with vows to give up shaving until wives agreed to let their hair grow out again. A large department store fired all bobbed haired employees and a hospital discharged bobbed haired nurses.' Severn, The Long And Short of It, p. 122 (1971).

Subject: Re: the L word

Written By: marthadtox2 on 05/06/04 at 9:14 am

A novel way to save the world......

......This defamation case concerns an article which appeared in defendant's magazine Penthouse. It was written about a "Charlene," a Miss Wyoming at the Miss America contest and about the contest. The defendants argue that the story is a spoof of the contest, ridicule, an attempt to be humorous, "black humor," a complete fantasy which could not be taken literally

The article had its setting at a Miss America contest and described Charlene, a Miss Wyoming at the contest, who was a baton twirler. The article began with a *441 description of Charlene with other contestants at a bar during the course of the contest. It quotes a conversation between Charlene and her coach, a man referred to as Corky. The story then switches to the contest as Charlene is about to perform her talent as a baton twirler. She is about to go on stage and her thoughts are described. She thinks of Wyoming and an incident there when she was with a football player from her school. It describes an act of fellatio whereby she causes him to levitate. The story returns to the Miss America stage where she goes on to perform her talent. She there performs a fellatio-like act on her baton which stops the orchestra. The act is concluded and the conversation between Charlene and her coach is described, and conversation with other contestants. She did not reach the finals but she says or thinks she has a "real talent." The third incident is then described. She is at the edge of the stage during the finals while the finalists are at center stage and the finals are under way. Charlene's thoughts are again described and these are how she would have answered the questions put to the finalists had she been one. These thoughts were that she would "save the world" with her real talent with the "entire Soviet Central Committee to prevent a Third World War? Marshall Tito? Fidel Castro?" She would be the ambassador of love and peace. The article then describes an act of fellatio with her coach at the edge of the stage while the audience was applauding the new Miss America in center stage. This fellatio causes the levitation of her coach. It is described that the television cameras were not on the new Miss America but "remained" on Charlene and her coach who was then rising into the air, and the story ends.......

Subject: Re: the L word

Written By: marthadtox2 on 05/10/04 at 10:26 am

Long hair causing problems again.......

The plaintiff was about to enter high school in September of 1969. A trombone player, he aspired to membership in the school band. Consequently, about the middle of August he reported, with other entering freshmen, to band practice.
During the preceding summer, plaintiff had let his hair grow. When he reported for band practice, the band director took exception to the length of his *955 hair. She first requested, and then ordered, that he cut it. Upon his declining to do so, the matter was brought to the attention of the defendant Chonko, the high school principal, who ordered plaintiff to cut his hair. Plaintiff again declined, whereupon he was suspended by Chonko from further band activities for ten days. He, his parents, and other the proportion, it was clear that all band of this suspension (P. Ex. 1), in accordance with state law.
With respect to the band, the evidence showed that the band members were both boys and girls. The evidence conflicted as to the proportions, ranging from 60/40 to 34/66 girls. Whatever the proportions, ranging members, regardless of sex, wore identical uniforms, consisting of trousers, jackets, and plumed garrison caps. Obviously, therefore, a boy with long hair would appear no different from a girl, so that the plaintiff's hair length could not possibly have interfered with that uniformity of appearance which defense witnesses testified was absolutely essential to prevent the entire band from being humiliated and ridiculed. Although there was evidence tending to indicate that long hair blowing about in the autumn breezed could cause problems in marching by obstructing the wearer's vision, this same evidence demonstrated that the distaff members of the band were able to cope with these problems by the use of such devices as hairpins and rubber bands, which the band director always had available. There was no evidence whatsoever that plaintiff's long hair had caused any such problems. The band director complained that audiences were distracted from proper observation of and attention to the band's performance by their efforts to distinguish the plaintiff from his female colleagues. The Court takes the liberty of doubting both the accuracy and the importance of this observation. In any event, it could not have posed a problem at any time before the plaintiff's suspension and the commencement of this action, as the band had given no public performances up to that point.

Subject: Re: the L word

Written By: marthadtox2 on 05/10/04 at 10:39 am

silly defences no 2375

“Birdsell first told the doctor he had “come on the advice of my commanding general Nathan Bedford Forrest Provisional Army Confederate States of America. He commands as Imperial Wizard of the Ku Klux Klan, and I am Imperial Wizard acting for him”
Questioning by the doctor elicited the less colourful explanation that he had been indicted for conspiring to import automobiles into Mexico and had been sent to hospital by the judge….

Birdsell asserts that he is the reincarnation of confederate General Nathan Bedford Forrest who born in 1821 was the first imperial wizard of the Ku Klux Klan. Birdsell allegedly commits his criminal activity because he is under instruction to forage “ for the cause” Birdsell allegedly believes that when he dies he will return to earth as a person names Brandt who is also a relative of General Forrest.

Birdsell relied on this assertion for an unsuccessful insanity defence as long ago as 1965……

Subject: Re: the L word

Written By: marthadtox2 on 05/11/04 at 12:05 pm

Long hair wigs and the airforce......

McCUNE, District Judge.
The plaintiff is an Airman First Class in the 112th Consolidated Aircraft Maintenance Squadron of the Pennsylvania Air National Guard.
On September 1, 1972, during an inspection he was told to get a haircut by his commanding officer because his hair did not meet the regulations set forth in the Air Force Manual. The plaintiff did not comply with the order which led to further discussion during which it was discovered that plaintiff had been wearing a wig to disguise his hair which was much longer than the hair of the wig. It was the wig which the officer had found to be unmilitary. The wig was somewhat long in the back and extended over the collar which was in violation of the manual.
The wearing of a wig to drill was also in violation of the manual of regulations unless worn to cover disfigurement or baldness and plaintiff was told that he could not attend drill in either the wig or in long hair because he was not bald or disfigured. He refused to comply with the orders.
Plaintiff's commanding officer discussed the matter with him and offered non- judicial punishment or a court martial. The plaintiff chose to face a court martial but before it could be convened plaintiff filed a complaint in equity seeking a permanent injunction against the convening of the court martial, or the taking of any punitive action against the plaintiff for violation of the Air Force Regulations dated September 3, 1971, reference AFM 35-10 relating to the wearing of wigs. Plaintiff also asks for an injunction against the defendant enjoining the exclusion of plaintiff from drill while wearing a wig and from ordering plaintiff to proceed to active duty by reason of his excessive absences. It is apparent that plaintiff has not been allowed to drill and has thus become an absentee who may be ordered to proceed to active duty.
The Air Force Manual published by the Department of the Air Force governs the Air National Guard. The Air National Guard is but an arm of the Air Force. The Federal Government pays 75% of the salaries of the men and officers of the Air National Guard. The state pays 25% of the same salaries.
The pertinent regulations from the Air Force Manual are the following:
"1-12. Dress and Appearance-Men: a. General. Each member of the Air Force must maintain high standards of dress and personal appearance. As representatives of the Air Force, it is imperative that all members present a neat and well-groomed appearance to their fellow citizens and citizens of foreign nations in countries where they are serving. Further, the need for personal cleanliness, safety, and proper wear of the uniform on the part of all members requires that certain minimum standards be established throughout the Air Force. All Air Force personnel will comply with the following standards: ....

* * *
(2) Hair. Hair will be neat, clean, trimmed, and present a groomed appearance. Hair will not touch the ears or the collar except the closely cut hair on the back of the neck. It will present a tapered appearance. Hair in front will be groomed so that it does not fall below the eyebrows and will not protrude below the band of properly worn headgear. In no case will the bulk or length of the hair interfere with the proper wear of any Air Force headgear. The acceptability of a member's hair style will be based upon the criteria in this paragraph and not upon the style in which he chooses to wear his hair.

* * *
(6) Wigs. Wigs or hair pieces will not be worn while on duty or in uniform *431 except for cosmetic reasons to cover natural baldness or physical disfiguration. If under these conditions a wig or hair piece is worn, it will conform to Air Force standards."
The Air Force contends that plaintiff is neither bald or disfigured and that when he appears for drill dressed in a wig he is out of uniform. Of course the Air Force contends that even the wig fails to meet specifications.
The plaintiff argues that he is really a civilian who devotes little of his time to the Air Force (weekend drills and summer camp) and that his occupation demands that he wear long hair. He is a member of a musical group called "Harombee" which plays so called "hard rock" for audiences of young people and argues that if he were to appear in short hair it would be thought so unusual that it would jeopardize his job. He apparently has been a musician for about 7 years and works somewhat steadily at his vocation where unusual dress and appearance is the rule rather than the exception.
He argues that wearing a long wig to his work as a musician (which is possible of course) is a hardship since a wig causes dandruff and falling hair and discomfort and he contends that he works, of course, more than he drills.

Subject: Re: the L word

Written By: marthadtox3 on 05/17/04 at 3:43 am

.(nb ..the same Martha  had to reregsiter cos of computer  problems)

. a cautionary tale

. J. Howard's Affair with Lady Walker
In 1982, J. Howard met "Lady" Diane Walker. Feeling the need for a drink after a day at the office, he went to a "strip joint, a titty bar" as he described it in his videotaped deposition in 1992. (Ex. 3225.) Lady Walker was one of the strippers who took everything off for J. Howard in return for his generous dollar bills. Thus, at the age of seventy-eight, he began his pursuit of Lady Walker.
J. Howard wanted Lady Walker to be his exclusive mistress and he often professed his desire and commitment to marry her if Betty died. Money was immediately bestowed upon her. The intensity of his pursuit is set forth in his letters to her.
These letters contain repetitive and aggressive protestations of his love, always coupled with a reference to money. "Jungle Money" and "Pin" are code words for money that J. Howard gave to Lady Walker. "Pin" was a regular payment made on a consistent and timely basis, "Jungle money" was a payment for her own pleasure, and "big kills" were larger sums given sporadically to Lady Walker. J. Howard also gave Lady Walker enormous amounts of jewelry, including more than $1 million purchased from Harry Winston and Nieman Marcus, the same stores at which he would subsequently buy jewelry for Vickie.
FN7. "Light of my life/ ... Now, as always you can count on/my love and devotion--our 'Jun'/money is but a small sample of my concern for my lady--..." (Ex. 630, p. HBOM 0015501.)

"... my proposal to beg you to be my mistress." (Ex. 630, p. HBOM

"Dear Lady--/I fear I am a nuisance--I still hope I am a beloved nuisance-- of course/I shall do what you ask 'stop calling' ... it is part of the juice of my devotion ... All of this is a far, far cry from the years gone by ... you said I could 'call you/whenever I wanted.' I fear I have abused it. If so, it is only because I love you ..." (Ex. 630, p. HBOM 0015505.)

FN8. "Dear Lady--/Perhaps true love never/runs smooth--but since I love you truly, this 'pin'/ tries to tell you I am/Your devoted man" (Ex. 630, p. HBOM, 0015479.)

FN9. "Lady love: /Jungle & Pin" (Ex. 630, p. HBOM 0015481.)

"My Lady Love--/Increased Jungle Money --/+/Pin/+/Sharom" (Ex. 630, p. HBOM 0015483.)

FN10. "Another 'pin' to go with/Big Kill" (Ex. 630, p. HBOM 0015486, H-108-1480.)

At one point, J. Howard sent Lady Walker the Koch Industries prospectus in an apparent attempt to impress her with his wealth. The front of the first page reads, "For Lady--/The Crown jewels/ J. Howard." (Ex. 630.)
This pattern of giving money, and even the terms that J. Howard used, is the same pattern that Vickie describes of J. Howard's pursuit of her a decade later. Lavish jewelry, regular payments of money, and sporadic gifts ushered these bar dancers into J. Howard's life. Apparently, it was extremely lucrative to have an affair *17 with J. Howard. J. Howard spent approximately $2 million a year on Lady Walker, which is approximately the same amount of money he spent each year on Vickie when he pursued her a decade later.
J. Howard's statement that "men in love do stupid things and I was sure guilty" is accurate. (Ex. 3225.) In J. Howard's case, it was a consistent pattern.
G. The Death of Betty Marshall and Lady Walker and the Beginning of the Lady Walker Litigation
J. Howard's affair with Lady Walker continued uninterrupted until she died suddenly as a result of complications from facelift surgery on July 9, 1991 at the age of fifty-one

Subject: Re: the L word

Written By: marthadtox2 on 05/18/04 at 2:00 pm

A cautonary tale : part 2


“J. Howard's autobiography, Done in Oil, harkens back to a nostalgic period in American history of allegedly self-made entrepreneurs who shaped our country. It recalls a time when the saying "go west young man" was the siren song for men and women of our country who left humble beginnings and crossed the rivers and plains to settle huge expanses of the nation. These ruggedly honest individuals walked the Oregon Trail, settled the Oklahoma territories, worked the California gold fields and inspired phrases like "Remember the Alamo," which needs no explanation to Americans. The myths and the reality of these individuals of character and vision survive and now form a large part of our country's history and folklore. J. Howard set himself in the context of these enterprising pioneers. Both parties have argued that to understand this case, the Court must understand who J. Howard was and who Vickie is. At the outset, the Court admits to being uncomfortable with testimony that delved so intimately into their private lives. However, after a thorough review of the bankruptcy court's record and the testimony heard by this Court, the parties are correct to emphasize the particular nature of the individuals involved. The Court will therefore set forth some insights into the myths and reality of J. Howard and Vickie.

A. Background

B. Born in 1905, J. Howard attended private schools in the northeast part of the United States, including the George School, an exclusive New England prep school, Haverford College, an elite liberal arts college, and Yale Law School, one of the nation's leading law schools, from which he graduated magna cum laude in 1931. Although he often derided his undergraduate liberal arts education, he took great pride in the legal training he received at Yale. Upon graduation, he worked as an associate in a New York firm for two years. Subsequently he returned to Yale Law School to teach and later became the Assistant Dean.

FN5. One of the subjects he taught at Yale was wills and trusts. Surely he did not realize at the time that these same subjects would take up large portions of his later life, and dominate his family's affairs for more than six years after his death.


J. Howard's position with respect to the gift taxes was largely similar to his position with estate taxes--he did not want to pay them and it was his lawyers' job to figure out how to avoid them.
Sorensen, however, understood that the gifts were subject to a gift tax that had gone unpaid, and knew that this avoidance of the tax laws would cause substantial interest and penalties from the Internal Revenue Service. Sorensen eventually determined that between $12 and $14 million was given to Lady Walker without taxes being paid. In 1989, he filed amended tax returns for the years 1983-87. These eventually caused the IRS to audit J. Howard and initiate tax collection proceedings.
J. Howard repeatedly attempted to avoid taxes, and during the gift tax litigation, it was discovered that he had, in fact, found a way to use his affair with Lady Walker to his advantage. In the gift tax litigation, J. Howard took the unlikely position that his "pin" payments to Lady Walker were consulting fees. At one point, he suggested that she received a salary of $1 million per year to handle his public relation work. He not only tried to escape gift taxes this way, but it is likely that he deducted his payments to Lady Walker from his income tax returns.
His efforts to hide gifts in the guise of legitimate business operations were disclosed in the testimony of his closest advisors. Jeff Townsend testified that Finley Hilliard, J. Howard's accountant, told Townsend that J. Howard wanted to funnel funds to Lady Walker. Two corporations were formed, in part as a way for J. Howard to give Lady Walker money. Stock of Coliseum, Inc. was held in trust for her benefit and he gave her gifts of Presidio, Inc. stock. Lady Walker also served on the MPI Board of Directors. When questioned about her functions, he replied, "I guess she was a Director-- *18 never active--she never undertook anything as a Director." (Ex. 3225.)

FN11. Disputes over gift tax and inheritance tax
I. Summary
It is fair to say that J. Howard was an immensely successful businessman. He served on boards of numerous corporations and banks and became involved with a number of oil and gas ventures in Texas. J. Howard was also heavily involved in Koch Industries, as described herein. J. Howard's success earned him a ranking in Forbes Magazine as one of the 400 wealthiest men in America, and the wealthiest man in Texas. But the rating rankled J. Howard, and he claimed to dislike the publicity that it brought. What worried J. Howard more than publicity was the spotlight that it shined on his wealth. Being named as one of the richest men in the country was likely to attract the attention of the IRS.
J. Howard was a well-trained lawyer. Oddly, however, he did not appear to have much regard for the profession. He was reputed to dislike lawyers and the details of lawyering. To his mind, a legal document should never be more than one page long.

FN12. It is ironic then that his death has created the largest volume of legal filings in the history of the Southern Division of Central District of California.

19 J. Howard is also described as being irascible and demanding. Perhaps to those who knew him, those personality traits were endearing. To outsiders, he was viewed simply as impatient and hostile. His tendency to bang the table to make his point was viewed as being in command of a situation. However, the Court's view is that, at least late in his life, J. Howard's theatrics were transparent.
In addition, J. Howard's disregard for the tax codes was a pattern he followed his entire life. For ninety years, he showed nothing but contempt for the IRS and the tax codes of this country. Throughout his life he surrounded himself with excellent legal counsel who were creative in attempting to circumvent the tax codes. He ignored gift taxes until he could no longer evade the issue. He railed against the inheritance tax provisions, claiming that being forced to pay estate and income taxes was "double taxation," while at the same time he avoided paying substantial income taxes by: writing off as business expenses the gifts to his paramours Lady Walker and Vickie, whom he claimed were consultants; financing his lifestyle by taking a line of credit against his valuable stock holdings, the proceeds of which are not taxable income; and hiding and manipulating his assets in aggressive accounting gimmicks.

FN13. Surprisingly, much what J. Howard managed to do was within the confines of the law, allowing him to evade taxes by stepping through loopholes that only someone of his great wealth could afford to find.

In summary, this court is not impressed with the character of a man who had the finest private school and legal education and who consciously avoided the very taxes that millions of American families comply with every year. It is in the collection of these taxes that the government must rely on the good faith and honesty of our citizens to fund our nation's needs in time of peace and war. The fact that J. Howard could not see fit to comply with these laws, despite the great advantages that he was afforded by American society, speaks poorly of his character

Subject: Re: the L word

Written By: marthadtox2 on 05/18/04 at 2:02 pm

a cautionary tale  part 3


Vickie dreamed of becoming the personification of her idol, Marilyn Monroe. Both became international superstars, traveling far from home under assumed names. Norma Jean's fame thrust her into the arms of an American baseball icon and a dashing young politician, while Vickie Lynn found herself in the company of a Texas oil baron. But her notoriety never reached the same heights or longevity. Her life is best described as that of a person who was rescued by her wealthy pursuer and taught to spend money at a breathtaking pace that most Americans cannot fathom. While she detested being thought of as a gold-digger, her actions leave little doubt that money was the central facet of her relationship with J. Howard. Her appetite for money, once developed, was incessant and outlandish by everyday standards.
Vickie appeared before the Court to testify for three days. Her communication skills were poor as she frequently had trouble engaging counsel. Her illiteracy is striking. Examples are too numerous to chronicle but include writing "25.00" meaning $2,500 and "4500,00" meaning $4,500--she testified that she has trouble with zeros. In fact, she has only recently started learning to pay her own bills after years of managers and relatives managing her money. Vickie also finds herself in *20 difficult times and is being treated for depression.
But education is no guarantor of integrity and a discredited profession does not mean a person lacks truthfulness. While Vickie certainly drew a more noble image of herself than the facts bear out, her testimony on the statements made by J. Howard are credible.
A. Background
Vickie Lynn Marshall was born in Houston, Texas in 1967. Her parents divorced shortly after she was born and her father moved away. She never saw him until she looked him up after she had become Playmate of the Year. In her teens she moved with her mother to Mexia, Texas, a small town in the eastern part of the state. She completed grade school, but failed her freshman year in high school, and never progressed past an eighth grade education.
Vickie worked as a waitress and morning cook at Krispy Fried Chicken in Mexia where she met Billy Wade Smith, who was the cook at the restaurant. At the age of 17, she married Billy Smith, and at the age of 19, she gave birth to her son Daniel, her only child. The marriage ended shortly thereafter, and Vickie moved back to Houston with Daniel when he was a year old.
B. Career as a Dancer
At this point in her life, Vickie was estranged from her family. Her husband, Billy Wade Smith was not providing child support and made no effort to visit Daniel. Initially she found employment at Walmart and later as a waitress at the Red Lobster, but she could not make enough money to support herself and Daniel. Vickie testified that one day, while on the way home from work, she passed a neon sign that displayed a lady in high heels wearing a bikini. She was interested in becoming a dancer, but deferred at first when she found out it was a nude dance bar. She initially sought a job as a waitress but was quickly talked into dancing on stage. After a couple of drinks, humiliated but willing to dance, she overcame her inhibitions and continued as a dancer when she saw "all the money in her lap which paid the bills."
Vickie, however, was big-boned, and in the fashion trends of the late 1980's and early 1990's, her figure relegated her to the "B" team. Instead of working the lucrative night shifts, Vickie danced during the day, for less pay and fewer tips. But this apparent disadvantage would soon work in her favor.

J. Howard and Vickie began their relationship in October 1991, when they met at Gigi's in Houston, Texas. They married June 27, 1994 and their relationship continued until his death on August 4, 1995. They met when she was at the vibrant age of twenty-four, and he a sickly eighty-six year-old man. The issues of J. Howard's donative intent and Vickie's expectancy can only be understood by slowly unwinding their years together.
A. The Meeting of J. Howard and Vickie
After Lady Walker and Betty died in 1991, J. Howard entered a period of deep despondency. He appeared to his family and friends to have lost his zest for life. In 1991, J. Howard told his eldest son, J. Howard, III, that "he enjoyed having pretty women on his arm when he entered the River Oaks Country Club in Houston and that a great light had gone out of his life."
In October 1991, Vickie was dancing at Gigi's, a Houston strip club. Dan Manning *21 was J. Howard's driver who frequented Gigi's and had seen Vickie dance. Manning and J. Howard had talked about going to a burlesque bar and in October, Manning drove his boss to Gigi's to cheer him up. Because of J. Howard's age and physical condition, he did not go out at night, and thus they arrived during the day-shift, when Vickie worked. Manning approached Vickie and asked her to dance for J. Howard. According to Vickie, when she saw J. Howard, "he looked terrible, he looked like he had lost his will to live." While Vickie danced, J. Howard tried to grab her breasts. Thus began J. Howard's aggressive pursuit of Vickie's affection. He asked to her to have lunch with him the next day. A description of this lunch helps to understand the pattern that they followed for the years of courtship prior to their marriage.
B. The Courtship
J. Howard initially took Vickie to a restaurant hotel and ordered room service. He told Vickie about Betty and Lady Walker and funny stories about himself. When she became concerned about her job, he gave her an envelope with a thousand dollars in cash and told her not to go to work. The following day they had lunch at River Oaks Country Club, where once again she was given cash. On each occasion, money was given to her ranging in amounts of $1,000 to $5,000 in cash. Vickie "stopped dancing right after Howard met me that day." (Dep. of Vickie, Dec. 28, 1999, vol. 3, p. 600.) J. Howard was soon paying all of Vickie's bills. Shortly after they met, J. Howard purchased a white Toyota Celica as a gift for her after her own car had been repossessed.
She started receiving $2,000 checks twice a month. (Ex. 48.) These checks were recorded by J. Howard's assistant Eyvonne Scurlock for consulting, just as his previous "pins" to Lady Walker had been. Summaries prepared by Scurlock were then sent to J. Howard's accountant for tax purposes and 1099 Tax forms for Vickie were prepared. (AP 11462, Dep. of Eyvonne Scurlock, August 27, 1999. pp. 72, 576-577.) These $2,000 checks increased over time to $2,750.
Within a week of their meeting, J. Howard told Vickie that he was going to marry her. He had been re-invigorated by Vickie. While he had fallen into a state of deep despair after the deaths of Lady Walker and Betty, his relationship with Vickie brought him back to life. He called her "the light of his life." He told his attorney Harvey Sorensen numerous times that he wanted to marry Vickie.
According to Vickie, J. Howard asked her to marry him "tons of times." She contends that the proposals were usually accompanied by the same assurance that once they were married, she would have half of everything he had. His proposals occurred frequently, and are confirmed by numerous friends, employees and professional associates. He started buying her rings that increased in size and value. When he gave her rings, there was always the same conversation about marriage. "It seemed like every time he would buy me a bigger and bigger ring and he would ask me over and over and over and he was very pushy. He really loved me. He just really wanted to marry me." (Dep. of Vickie, December 28, 1999, p. 642.) During J. Howard's courtship of Vickie, he purchased at least three large engagement rings as well as numerous smaller rings. On each occasion, the giving of these rings was accompanied by the same incessant matrimonial proposals.
J. Howard's aggressive pursuit is illustrated by one instance where he purchased jewelry for Vickie from Nieman Marcus. On Christmas Eve 1993, David Watson, a *22 Nieman Marcus employee, delivered various pieces of jewelry to Vickie's home for her and J. Howard to review. Vickie looked at all the pieces, and commented that a particular yellow diamond ring was too expensive and should not be shown to J. Howard. When J. Howard arrived, he looked at the jewelry and commented: "this is better than the Home Shopping Network." J. Howard then asked if he had seen everything. Watson, forgetting Vickie's admonition, showed J. Howard the yellow diamond ring. When told that the price was, $107,000, J. Howard stated: "Oh, just a baquetta." J. Howard then completed the purchase. That purchase, and an earlier one by J. Howard in April 1993, were the two largest purchases in store history.
During their courtship, J. Howard made numerous other gifts to Vickie. On September 16, 1992, J. Howard purchased a ranch for Vickie in Tomball, Texas, outside of Houston (the Tomball Ranch). This ranch was purchased in the name of the J. Howard Marshall, II, Living Trust (the Living Trust), but was intended for Vickie's use and benefit. J. Howard later purchased a home on Rusington Street in Houston, which was held by the Houston Land Trust, with her as the beneficiary. J. Howard also rented the Los Angeles house that Marilyn Monroe had lived in. When the lease expired, he purchased a house on Ashdale street in the Brentwood area of Los Angeles for her. J. Howard also provided Vickie with an apartment in New York City when she spent time there. He bought her $10,000 gowns that could only be worn once because in "Hollywood you could never wear the same dress twice." Jewelry purchases from Harry Winston jewelers for Vickie exceeded $2 million. In 1992, J. Howard purchased a new Mercedes Benz for Vickie.
Vickie testified that J. Howard taught her to spend money, and that spending money was fun. She was the second of two women with little wealth and no experience whom J. Howard taught that there were no limits to the fun of spending money if they were with him.
J. Howard eventually introduced Vickie to Pierce. On one occasion in 1992, J. Howard took Vickie and Pierce to lunch at the Royal Oaks Country Club. From the outset, the relationship between Vickie and Pierce was tense. Vickie already believed that Pierce did not like her, and felt that during the entire lunch he was giving her "mean looks." According to Vickie, when J. Howard went to the restroom, Pierce told her "don't let J. Howard buy you anything else."
J. Howard nevertheless repeatedly proposed to Vickie. She had just started taking voice and modeling lessons when she met J. Howard, and although she was flattered by these proposals, she wanted to have a career first. Vickie put off J. Howard almost three years before she finally accepted his proposals.
Shortly after they met, Vickie saw an ad in the newspaper to audition for Playboy Magazine. After meeting with a scout, Vickie was quickly hired and two weeks later was doing a test shoot in California. In March 1992, Vickie made her Playboy debut, appearing on the cover. In May 1992, she was named Playboy Playmate of the Month.
Vickie was contacted by Guess Jeans to be part of its national advertising campaign. She became their top spokes-model for a one-year period from 1993-94. During this time, she appeared in numerous other magazines and in 1993 was named the Playboy Playmate of the Year. Vickie had achieved the level of international sex symbol, and was one of the most recognized print models in the world. Her stardom *23 only encouraged J. Howard to pursue her with a newfound vigor.
In Spring 1994, Vickie was on tour for Guess Jeans in Singapore. While there, she and the Guess Jeans entourage were mobbed by fans. The incident scared her, and the remainder of the tour stops in Japan and the Philippines were cancelled. When she returned home to Houston, J. Howard once again proposed to her. J. Howard repeated that she was the woman who had saved his life, that he would take care of her and her son, and that she would have half of everything he had. This time, Vickie accepted.
Vickie testified that his money was a factor in her decision to marry J. Howard, but contends that she would have married him anyway. Vickie sought security for her and her son, and what he might lack in youth, vigor, and looks, J. Howard made up for with his great wealth. Although she has often been portrayed to the Court as a gold-digger and predator, she did hold a certain regard for J. Howard, and was willing to compromise her prime modeling years for someone who showered her with gifts and offered financial security.

C. The Marriage of J. Howard and Vickie
J. Howard and Vickie were married on June 27, 1994 at the White Dove Wedding Chapel in Houston, Texas. Although numerous prenuptial agreements had been prepared, beginning as early as 1992, none were signed, nor was any such agreement ever discussed with Vickie.
The wedding was not widely announced, and Pierce did not learn of the wedding until after it occurred. Only a few close confidantes attended, including J. Howard's assistant Eyvonne Scurlock, his new driver Arnold Wyche, his nurse Charlotte Fade, and Vickie's aunt and uncle, Elaine and Melvin Tabers. Henry Schlesinger, one of the MPI executives was invited, but did not attend.
The night of the marriage, Vickie flew to New York on an assignment, leaving J. Howard in Texas. On July 6, 1994, J. Howard left for California to visit his new wife.
During their marriage, J. Howard continued to give extravagant gifts to Vickie. J. Howard also considered adopting Vickie's son Daniel. One of J. Howard's lawyers, Jeff Townsend began seriously investigating the issue. He contacted counsel in California about possible adoption proceedings and traveled to California to meet with attorney Lawrence Leone. (Ex. 143.) The adoption, however, never took place because Townsend determined that he would not be able to obtain consent from Daniel's natural father, Billy Wade Smith. The steps taken to begin an adoption proceeding demonstrate that J. Howard was prepared to undertake a greater commitment to Vickie and her son, not only during his lifetime, but long afterward.
Vickie and J. Howard also tried to have children of their own. Initially, they tried to have children in what Vickie described as "the normal way." When that did not work, J. Howard went to a fertility doctor to seek advice and treatment.

Subject: Re: the L word

Written By: marthadtox3 on 05/20/04 at 12:21 am

a comment on the English class system........

"By their writ the plaintiff executors claimed an order that a 99-year lease of shooting rights over the Swythamley estate which the late Sir Philip Brocklehurst had granted to the defendant should be set aside:
"as having been entered into by... the... deceased as a result of the undue influence of the defendant exerted whilst in a position of confidence and trust."
At the very beginning of his judgment Blackett-Ord V.-C. announced his finding about the defendant's conduct. He did so in these terms:
"I say at once that I find no evidence of any consciously improper conduct on the part of Mr. Roberts. He did a great deal for Sir Philip in his latter years, and I am satisfied that when he obtained the confidence of Sir Philip to the extent which he did, he only accepted from him benefits which he genuinely thought Sir Philip intended him to have. The plaintiffs, through their counsel, have expressly disclaimed any suggestion that Mr. Roberts improperly influenced Sir Philip."
Many common lawyers would expect that finding to result in judgment for the defendant. Yet the court ordered the lease to be set aside for the reason alleged in the writ. I found this an unexpected result.
Mr. Francis, on behalf of the plaintiffs, submitted that it was a result that would have been expected in a court of equity once the evidence established, as he said it did, a relationship of confidence and trust between Sir Philip and the defendant. The reason for this was that there was no evidence to prove that before executing the lease Sir Philip had had any independent advice. The lack of such evidence, as a matter of law, submitted Mr. Francis, made it impossible for the defendant to rely upon the facts (as the Vice-Chancellor found them) that his conduct towards Sir Philip had not been improper and that he had not intended to influence him in any improper way. For my part I find such a rule of law, if there be one, unattractive; but if that be the law, I must apply it.
I have no difficulty in accepting that a plaintiff's evidence may prove the existence of a relationship resulting in large gifts being made which calls for an explanation from a defendant recipient. If no explanation is given, or if given, is unsatisfactory, a court should infer that the gifts were obtained by the exercise of undue influence. Some common lawyers refer to this as the shifting of the evidential burden of proof. In the courts of equity it has been the practice to say that such situations raise a presumption of undue influence which a defendant recipient has to rebut. What I found a difficult concept was the notion that such a presumption could only be rebutted by one kind of evidence.
In my judgment the issues in this case are these: did the plaintiffs prove that there existed between Sir Philip and the defendant such a confidence as to enable the defendant to exercise influence over him? If yes, did the defendant prove that the granting of the lease by Sir Philip came about by a free and independent exercise of his will?
In the last months of his life Sir Philip came to depend heavily upon the defendant for easing the burden of day to day living. The attraction *34 for Sir Philip was that the defendant would do whatever he was told to do. But the defendant was no obsequious crony. Still less was he a dominating factotum. Each knew his place in the world. Sir Philip's was much higher than the defendant's. Sir Philip was the son of a Victorian squire and had himself become the Squire of Swythamley Park when he was 17. He was autocratic and self-willed. The defendant had been a butcher's apprentice and a lorry driver. When he first met Sir Philip in the mid 1960's he was running a small garage. What brought them together was their common interest in shooting. They liked each other; but from the beginning of their friendship until Sir Philip's death the defendant never crossed the social gap which lay between them. Sir Philip addressed him, and referred to him, as John, but the defendant always addressed, and referred to the other as Sir Philip. In cross-examination, the defendant, who had been a rating in the Royal Navy for 18 months during the second world war, in a few words set the scene:
"I never had any disagreement with Sir Philip all the time I knew him, but it did not alter the fact that he had still got that army atmosphere behind him."
That atmosphere had been acquired by service as an officer in the Life Guards and the Arab Legion - a daunting combination for a former rating. One witness, Mr. Fane Murray, who seems to have had a keen appreciation of the niceties of the social gradations in English life, described the defendant's attitude towards Sir Philip as "slightly subservient in the nicest possible way." That is what I would have expected it to be. There are details in the evidence which for me illuminate the relationship. Until Lady Brocklehurst left in 1972 the defendant was never,invited into the house. After she had left he did go in but by the back door. He only went in when he was asked to call or had a specific reason for doing so. He was never invited to stay. He helped Sir Philip in most intimate ways, as, for example, when accidents happened with his colostomy equipment; but Sir Philip never discussed his financial and family affairs with him, although he was not reluctant to do so with his friend and neighbour, Mrs. Knight, whom he regarded as a social equal.
In the last two years of his life, Sir Philip probably was in need of some protection from himself, mostly because of his impulsive generosity. His gift of £5,000 to his bank manager is an example of such generosity. Strange though such behaviour was, it was not wholly irrational. He was a wealthy man without a male heir. His wife had left him and anyway she was wealthy in her own right. Both his daughters were married and he had settled money on them years before. His sister was about the same age as he was and not in need. His only male blood relation was a great-nephew with whom he had had little contact and to whom he was not attracted. After his wife left him he often thought and talked, but not to the defendant, about what he should do with his wealth. He had difficulty in deciding. He did not hold the opinion, as many of his social kind and generation might have done, that to break up, or impoverish, an estate such as Swythamley would be an act of treachery to his family, his class and even his country. He saw his estate as an asset which he could dispose of as he liked. He had barred the entail. Swythamley had *35 not been in his family all that long. He was a grandchild of the Industrial Revolution. His parents' marriage had brought together two of the leading families in the cotton and silk trades. He clearly lacked that desire to maintain intact a family estate which is often to be found among families which have been landowning for generations. Our law in the past has done little to encourage (but much to discourage) families to keep a grip on estates and in this century legislation has made it difficult for them to do so. A disposition of rights over an estate may be most stupid estate management; but if it is good in law I can see no reason why the courts should interfere. It is no part of our function to maintain the integrity and value of landed estates any more than it is to curb generosity amounting to folly"

Subject: Re: the L word

Written By: marthadtox3 on 05/23/04 at 1:02 am

Another cautionary tale... but your Honour she said she was on the pill.....

so now you know what biofeedback therapy is......

From April, 1983 to August 10, 1983, defendant treated plaintiff by using biofeedback therapy, hypnotherapy, and psychotherapy. During the course of his treatment of plaintiff, defendant began to make sexual advances toward plaintiff. Defendant planned a trip to Alaska and asked plaintiff to accompany him as part of her therapy. During the trip defendant and plaintiff began to have sexual relations.


To assess damages against the mother for false representations about birth control would have the practical effect of reducing or eliminating support from the father by way of offset. Erasing much or all of the father's financial support, to the detriment of the child, is clearly against public policy and the statutory mandate.

we think it is not sound policy to allow one parent to sue the other over *1008 the wrongful birth of their child. Using the child as a damage element in a tortious claim of one parent against the other could seldom, if ever, result in benefit to a child. Such a lawsuit would indeed be strong evidence of parental rejection, which could only be emotionally detrimental to the child.
We agree with these policies, and hold that in the circumstances presented by this record, P may not recover as damages from Moore the costs of raising her son. Again, assuming M committed professional malpractice in seducing Poor, Poor is entitled to recover tort damages for any injury to Poor proximately resulting from Moore's conduct. Thus, Poor may recover medical expenses, pain and suffering, and lost wages resulting from the tort. Poor may also recover any damages which a client under like circumstances who did not become pregnant, could recover, including damages for emotional distress

Subject: Re: the L word

Written By: marthadtox3 on 05/26/04 at 2:19 am

a blast from the past for conspiracy buffs....

A. The Gemstone Plan
In the early morning hours of June 17, 1972, roughly four and a half months before the presidential election, police discovered five men inside the DNC offices carrying electronic equipment, cameras, and large sums of cash. These were no ordinary burglars. They were operating as part of a larger CRP intelligence gathering plan code-named Gemstone, and they had been in the DNC offices once before, in late May. Their mission this time was to fix a defective bugging device placed during the prior entry on the telephone of the DNC chairman; these orders had come after high officials at CRP expressed dissatisfaction with the information theretofore produced by the expensive Gemstone. Tr. 2649, 4143-4147, 4519-4521.
FN9. The burglars were James McCord, Bernard Barker, Eugenio Martinez, Virgilio Gonzalez, and Frank Sturgis. Tr. 4143. They, along with E. Howard Hunt, Jr. and G. Gordon Liddy, were convicted of burglary, conspiracy, and unlawful endeavor to intercept oral and wire communications. All but McCord and Liddy were convicted on pleas of guilty. See United States v. Liddy, 166 U.S.App.D.C. 95, 509 F.2d 428 (1974).

Gemstone was the brainchild of G. Gordon Liddy, CRP's general counsel, who had been hired in late 1971 with the expectation that he would develop plans for gathering political intelligence and for countering demonstrations. Tr. 2625- 2628, 4507. That expectation was abundantly fulfilled. Collaborating with E. Howard Hunt, Jr., a former CIA agent whom Liddy knew well from previous ventures undertaken at White House behest, Liddy went to work on his assignment. In two meetings held during January and February 1972 he presented his initial Gemstone plan and budget to Mitchell, at that time Attorney General but even then the functional head of the Nixon re-election effort. These meetings were attended by Jeb Stuart Magruder, Deputy Director of CRP and later an important Government witness, and John W. Dean, III, counsel to the President and eventually the Government's prime witness at trial. At these first meetings Liddy failed to win approval. Mitchell indicating that the original million-dollar budget had to be scaled down. Tr. 2628-2634, 4507-4513. By March 30, however, Liddy had pared his budget to $250,000, and Mitchell had resigned his duties as Attorney General to become head of CRP in title as well as function. On that date, in Key *53 **276 Biscayne, Florida, Magruder obtained Mitchell's approval for Gemstone in a meeting attended only by Mitchell, Magruder, and Fred LaRue, a close personal friend to Mitchell then serving as a top campaign aide. Tr. 3276-3277, 4514- 4517, 4638-4639.
FN10. Tr. 7662-7664. Hunt still maintained an office in the Executive Office Building next door to the White House.

FN11. Both Dean and Magruder were convicted of conspiracy on pleas of guilty entered before the instant trial began. Both served prison terms for their roles in the cover-up. Tr. 3330-3331, 4503.

FN12. These early proposals included plans to kidnap demonstration leaders and to plant call girls with Democratic officials. Tr. 4117-4120.

FN13. LaRue, like Dean and Magruder, became an important Government witness. He too entered a plea of guilty to conspiracy and was awaiting sentencing at the time of this trial. Tr. 6733-6734, 6743-6746.

Magruder, who had once served on Haldeman's staff, was keeping the White House informed of campaign developments, including Gemstone plans and operations, by regularly transmitting documents and information on to Strachan, Haldeman's assistant. Tr. 4511-4513, 4518, 6612-6613. Haldeman himself had learned directly about an early version of the Liddy plan when Dean reported to him shortly after the February meeting. Tr. 2635-2636.
B. The Early Stages of the Conspiracy
The five burglars arrested inside the DNC gave aliases to the D.C. police, but within hours of the break-in Liddy, who had been monitoring the operation from a safe vantage point in a nearby building, reported the capture to CRP's highest officials, then in California. He told them that one of the captured burglars was James McCord, on CRP's payroll as chief of security. In an apparent effort to avoid the appearance of any link between CRP and the burglars, Mitchell, Mardian, LaRue, and Magruder met and decided to contact the new Attorney General, Richard Kleindienst, urging him to have McCord released from jail before the police penetrated his alias. Mardian placed the call, but ultimately sent Liddy to find the Attorney General when Kleindienst could not be reached directly. Tr. 4530-4536, 6563-6565. This fitful effort foundered, however, on Kleindienst's insistence that the burglars receive no special treatment. If Mitchell wanted to talk to him about it, Kleindienst said, Mitchell should contact him directly. Tr. 5898-5909.
Aware that McCord's true identity would come to light. Mardian, Magruder, and LaRue the next day worked on a press release that would deny any CRP tie to the break-in. Tr. 4537-4540, 6565-6569. It suggested instead that McCord might have been working for clients of his private security firm. Haldeman, contacted by long-distance telephone, approved the statement and urged that the release issue as soon as possible, even though Magruder had already informed him that the break-in was "Liddy's operation." Tr. 4542-4544. The release appeared on June 18 under Mitchell's name and with his approval. J.A. 912.
Meanwhile, in Washington, White House and CRP files were being cleansed of sensitive materials relating to Gemstone. Strachan performed this function at the White House, under orders from Haldeman to remove anything embarrassing. Among the items destroyed were DNC wiretap reports and a memorandum from Haldeman to Magruder urging that the intelligence operation shift from Senator Muskie to Senator McGovern, the emerging Democratic front-runner. Tr. 2651- 2653, 4547-4548. Magruder immediately ordered removal of all Gemstone materials from the files at CRP; he took them to his home upon his return from California on June 19. At a meeting that night, attended by Mitchell, Magruder, LaRue, Dean, and possibly Mardian, Magruder asked Mitchell what to do with the papers. Mitchell suggested that he "have a fire," and he did destroying the Gemstone documents in his home fireplace. Tr. 4540-4550, 4823, 6570-6573.

Subject: Re: the L word

Written By: marthadtox3 on 05/26/04 at 5:12 pm

Trouble in the orchestra pit.......

Supreme Court of Pennsylvania.
Feb. 12, 1906.

Appeal from Court of Common Pleas, Philadelphia County.
Action by Harry L. Burkhart against the North American Company. Judgment for defendant, and plaintiff appeals. Affirmed.
The alleged libelous article was as follows: 'Mrs. Carter Victor in War on Orchestra. 'Stubborn Musicians Nearly Prevented Performance of 'Du Barry' at the Broad.
'Discords Enraged Her.
'Row Behind Scenes Ends in Ejectment of Oboe, Bassoon and Four Brasses.
'Those persons who were in the audience at the Broad Street Theatre last Tuesday night will not know, until they read this, how near they came to being turned away without seeing the performance of 'Du Barry.'
'For a full half-hour before the curtain rose there was a lively time behind the scenes, with David Belasco and Mrs. Carter as the contestants on the one side and representatives of Nixon & Zimmerman on the other. In the end the Belasco-Carter forces were victorious.
'It was all about the Broad Street Theatre Orchestra. When the 'Du Barry' engagement began that organization was enlarged from eleven to seventeen pieces. Mr. Belasco paying more than half of the additional expense.
'Before the first performance there was ended Mrs. Carter complained that the discords of the orchestra had almost set her frantic, and she sent for Arthur Pell, her musical director, and instructed him to 'cut out' the extra pieces, which consisted of four brasses, an oboe and a bassoon.
'But they Only Laughed.
'Mr. Pell obediently informed the brasses, the oboe and the bassoon to this effect, but to his amazement they discordantly laughed at him, saying that they had been engaged by Mr. Kearney, the leader of the Chestnut Street Theatre Orchestra, who employes all musicians for the Nixon & Zimmerman theatres, and that only from him would they take their dismissal.
'The matter was then allowed to rest until Mr. Belasco should return from Atlantic City, Mrs. Carter vowing in the meantime that the frightful noises of those six 'extras' were rapidly ruining her nervous system.
'Mr. Belasco arrived last Monday night, listened to a few bars of the overture and fled with his fingers in his ears. When quiet had been restored he returned and notified the Nixon & Zimmerman representatives that unless the six wind compressors were discharged before the next night there would be no performance of 'Du Barry.'
'When the next evening arrived and Director Pell took his seat the six were still there, and when he ordered them out they again turned up their noses at him and asked him who he was, anyway; they didn't know him; they had been employed by Mr. Kearney, etc.
'Then Mr. Belasco and Mrs. Carter took action. They declared with unmistakable emphasis, that the curtain would not rise until the objectional sextette had been evicted, and Mrs. Carter went so far as to produce her street costume, preparatory to leaving the theatre.
'Called Off by Kearney.
'At this interesting point the Nixon & Zimmerman authorities, represented by one Love, who felt anything but his name for the Belasco-Carter interests, called up Kearney over the 'phone and had Kearney call off the objectional six.
'The curtain then arose and the performance proceeded, 'with just eleven- seventeenths of the previous amount of discord,' as one of the company phrased it.
'Apropos of the incident it is said, on good authority, that when the Rogers Brothers played at the Chestnut Street Theatre they found the orchestra there so little to their liking that they had it exchanged for that of the Broad Street Theatre, but when they got the latter it was so much worse that they asked and obtained the return of the first aggregation.'
At the trial the court excluded under objection and exception evidence of the plaintiff's reputation as a musician.
Defendant presented the following points: '(2) If the jury believe that the article published does not designate or identify the plaintiff, the verdict must be for defendant. Answer: That point I affirm. (3) If the article is substantially true as published, there can be no verdict for plaintiff. Answer: That point I affirm. (4) If the article correctly reports the fact of the plaintiff's discharge, and does not make any reflections or allegations respecting his professional competency, your verdict should be for defendant. Answer: This point I affirm.'

Subject: Re: the L word

Written By: marthadtox3 on 06/02/04 at 1:32 am

The curious case of Costanza v Seinfeld

A person is seeking an enormous sum of money for claims that the New York State courts have rejected for decades. This could be the plot for an episode in a situation comedy. Instead, it is the case brought by plaintiff Michael Costanza who is suing the comedian, Jerry Seinfeld, Larry David (who was the co-creator of the television program "Seinfeld"), the National Broadcasting Company, Inc. and the production companies for $100 million. He is seeking relief for violation of New York's Civil Rights Law §§ 50 and 51, being cast in a false light, invasion of privacy and defamation.

The substantive assertions of the complaint are that the defendants used the name and likeness of plaintiff Michael Costanza without his permission, that they invaded his privacy, that he was portrayed in a negative, humiliating light and that he was defamed by defendant Larry David when reports were published by a spokesman that plaintiff Michael *564 Costanza had a tenuous connection and was a "flagrant opportunist" seeking to cash in when the hyperbole of the Seinfeld program's final episode was at its peak. Plaintiff Michael Costanza asserts that the fictional character of George Costanza in the television program "Seinfeld" is based upon him. In the show, George Costanza is a long-time friend of the lead character, Jerry Seinfeld. He is constantly having problems with poor employment situations, disastrous romantic relationships, conflicts with his parents and general self-absorption.
These aspects are part of the comedic interplay with Jerry Seinfeld and the other actors that lead to the great success of the television show "Seinfeld". Plaintiff Michael Costanza points to various similarities between himself and the character **899 George Costanza to bolster his claim that his name and likeness are being appropriated. He claims that, like him, George Costanza is short, fat, bald, that he knew Jerry Seinfeld from college purportedly as the character George Costanza did and they both came from Queens. Plaintiff Michael Costanza asserts that the self-centered nature and unreliability of the character George Costanza are attributed to him and this humiliates him.

FN1. The misappropriation of comedic ideas in the context of a Seinfeld episode was the issue in Leifer v. Castle Rock Tel., New York Law Journal, July 2, 1997, p. 29, c. 2 (Sup.Ct.N.Y.Cty.1997).

Subject: Re: the L word

Written By: marthadtox3 on 06/02/04 at 1:39 am

the other Seinfeld lawsuit.....


Justice Tompkins

This action involves a claim that plaintiff disclosed a story idea to defendant Carol Leifer and elements of this idea were incorporated as a subplot of an episode of the television show "Seinfeld".
Plaintiff asserts that his story idea was of a comedic scene in which there are conversations at a Korean nail salon in New York, between the manicurists in Korean and two American women who are unaware that the Korean women are discussing them. Plaintiff presented his story idea to Ms. Leifer on June 20, 1991 and sought to cast her in a lead role in his short film on the subject. She declined to appear in the proposed film and the short film was ultimately produced by plaintiff in November 1991 under the title "Rosebud." It was exhibited by plaintiff in 1992 at the Edinburgh Film Festival, six times in New York at the Magno screening room for private screenings and three times at the Laemmle Theater in June 1992 to qualify for Academy award consideration. Three years later, the Seinfeld episode that features a Korean nail salon subplot was produced and broadcast. In the Seinfeld show, the female lead, Elaine, is portrayed as suspicious and uncomfortable since she believes that she is the subject of the manicurists' conversation in Korea. Despite their denials to her in English, she is in fact the subject of various satirical remarks. Unlike the plaintiff's film "Rosebud", which has two American women unaware of the Korean manicurists' parallel conversation, in the Seinfeld episode, only one American woman is present and she is highly sensitive to the possibility that she is being criticized in a language she does not speak. Plaintiff commenced this action in February 1966.
Under New York's law concerning intellectual property, an idea must be novel and original to warrant an ownership interest, see Paul v. Haley, 183 A.D.2d 44 (2nd Dept. 1992) Iv denied 81 N.Y. 2d 707 (1993). The concept of novelty includes an element of confidentiality since an idea cannot be novel if it is publicly available, generally known or imparted under circumstances that do not restrict disclosure, see Ferber v. Sterndent Corp., 51 N.Y.2d 782 (1980); Marraccini v. Bertelsman Music Group, ___ A.D.2d ___, 644 N.Y.S.2d 875 (3rd Dept. 1996).
While ideas that reflect genuine novelty and invention have protection, ideas which are not novel are in the public arena and may be freely used by anyone, see Oasis Music, Inc. v. 900 U.S.A., Inc., 161 Misc.2d 627 (Sup. Ct., N.Y. Cty 1994). The comedic confusion arising from different languages and the misperceptions that can arise has been elaborated over the centuries of theater, see e.g. Shakespeare, Henry V (involving the language barrier between the English King Henry and the French Princess Katherine). In this case, the comedic elements of conversations in different languages with the setting of a Korean nail salon are not so genuinely novel and original as to warrant protection. The elaboration in this case of a language confusions sketch of a Korean nail salon does not justify a different result. There are numerous differences between the two sketches and to the extent there is similarity, it is on such a general level that no protection is warranted.
Additionally, the publication of plaintiff's film at a film festival, in screenings and at a short commercial run in Los Angeles indicate that the work cannot be considered confidential in any sense, see Ashland Management, Inc. v. Janien, 82 N.Y.2d 395 (1993); Surplus Equipment, Inc. v. Xerox Corp., 120 A.D.2d 582 (2nd Dept. 1986). Even assuming plaintiff had initially imparted his idea to defendant Carol Leifer with confidentiality, his subsequent actions made the idea public. In this case. plaintiff only relied on his own subjective understanding but his objective actions both with defendant Carol Leifer at the time of their meeting and subsequently establish that his story idea was not treated confidentially.
Finally to the extent that plaintiffs claims involve the expression of his ideas, this claim is preempted by Federal copyright law, see Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).
Defendant Carol Leifer's motion for summary judgment dismissing the complaint is granted. Since the claims against NBC, Castle Rock and the other defendants are all derivative and dependent upon a determination that defendant Carol Leifer's actions were wrongful, the action against all other defendants is dismissed as well.
This decision constitutes the order of the Court and the clerk shall enter judgment accordingly.
7/2/97 NYLJ 29, (col. 2)

Subject: Re: the L word

Written By: marthadtox3 on 06/07/04 at 2:06 am

scenes from a marriage.....guess the decade of this unsuccessful divorce petition.....

Plaintiff testified that defendant found fault with her cooking and with her housekeeping generally. She admitted that she didn't like housework and in our view the criticism of her cooking was also justified
She had a talent for music and some training as a pianist.

Defendant had provided her with a Steinway piano which she later sold, and not long before the final separation he bought her a Hammond organ at a cost of $2,750. He said he bought it and gave it to her to alleviate her discontent and to contribute to her happiness. In spite of that, she admitted calling him 'cheap, parsimonious, mean, niggardly' on at least one occasion

The second incident occurred at an informal party at the home of 'the Millers', who were acquaintances but not intimate friends of the Seerys. It was a small gathering principally of neighbors. A buffet lunch was set out and drinks were available on self-service without limitation. Three men appeared, stag, at the party. One of them was referred to as Butch; the others are nameless in this record. The three were referred to by a Mrs. Wunning, a neighbor of the Millers, as 'rough strangers'. One of the defendant's witnesses in describing them said they 'weren't particularly educated' but she 'couldn't say they were foulmouthed'. *328

There is evidence of one witness that one of these 'characters' was monopolizing Mrs. Seery and that he manhandled her without remonstrance from her while dancing with her. Both the plaintiff and Mrs. Wunning said that she submitted to his kisses. Provoked by this conduct (as we, in agreement with the master and the lower court have found) the defendant, about 1 a. m. threw the contents of a highball glass in her face. One of her witnesses said: 'We decided to put her to bed.' While in bed the defendant slapped her on both sides of her face. He said she was drunk and that he was trying to bring her to, so that he could take her home.

She referred to arguments 'all the time we were together' and testified that 'he upset me continually'. She said she had to have medical treatment for her nerves while she lived with him but elsewhere in her testimony she admitted that she had received sedatives regularly, on prescription, three or four times a month continually for the last 12 years. That period included the 6 years that she lived apart from him. Defendant was a good provider; he drank occasionally but only moderately, and never was interested in other women. He worked hard in his business. He admitted that he was temperamental and at times irritable when he came home tired after a hard day's work, and particularly so after the tax lien had been entered against the home at a time when the problem of paying off the lien seemed insurmountable.

She too admitted that she was somewhat to blame and that she was 'not without fault in her dealings with her husband.' She attributed the failure of their marriage to 'incompatibility' because of clashes in temperament. That is as valid an appraisal as any.

In any view, this, in a number of respects, was an unhappy marriage but that does not supply grounds for its dissolution.

The fact that husband and wife do not get along does not warrant a decree of divorce. DeFrancesco v. DeFrancesco, 179 Pa.Super. 106, 115 A.2d 411.

There is no evidence in this case from which an inference of settled hate and estrangement on the part of the defendant may be inferred. Cf. Monaco v. Monaco, 160 Pa.Super. 177, 50 A.2d 520. On the contrary all of the proofs on both sides are to the effect that throughout the last separation the defendant repeatedly, by telephone and by written messages, has asked his wife to return to him. She admits his sincerity in these requests.

The record in its entirety in this case utterly fails to support the charge of cruel and barbarous *330 treatment and clearly does not supply proof of a course of conduct of the husband which rendered the wife's condition (even assuming her to be an innocent party) intolerable and her life burdensome. A divorce in this case was properly refused.

Plaintiff before the last separation moved the Hammond organ which her husband had given her, to a funeral home where she was employed as an organist

Subject: Re: the L word

Written By: marthadtox3 on 06/07/04 at 2:09 am

It's OK to have long hair ..... so long as you bother to wash it........

In September, 1969, Jerald Gere, a transfer student from New York, enrolled in the tenth-grade class. At the start of the 1969-1970 school year, the students were orally advised at a general assembly, and the parents through a newsletter from the Principal, that certain rules had been adopted pertaining to student dress, including the following:

'Hair length will be determined to a large extent by how well it is kept and groomed. When the hair becomes so long that it can't meet these conditions then a haircut is in order. No beards or mustaches are allowed. Sideburns may be worn even with the ears.'

In November, 1969, a committee of girls from the Student Council requested the Principal to revise the Dress Code in order to allow the wearing of culottes and, after submitting the matter to the faculty, approval was granted. In February, 1970, the Student Council asked for a modification of the rule concerning blue jeans and subsequently the modification was adopted pursuant to a faculty recommendation.

In the meantime, numerous complaints were made to the Principal about the hair style and appearance of Jerald Gere, who, at this point, had allowed his hair to grow to shoulder length and was attempting to grow a goatee. For example, (a) a student complained that because of Jerald's poor eyesight, he leaned forward while eating to the degree that his hair would hang in his plate and he would then throw his hair back out of the plate, causing annoyance to others in the cafeteria; (b) another student refused to sit next to Jerald in class charging that his hair was dirty and 'she couldn't tell what was going to crawl out of it', and (c) others accused him of causing annoyance by combing out the long strands of his goatee while in class.

A delegation from the American Legion called on the Principal protesting Jerald's refusal to abiJerald reappeared for the 1970-1971 school year with tresses touching his shoulders, which style, he concedes, violates the new Dress Code. Once again he was asked to comply and again he refused. Suspension followed and this lawsuit was by the Code and parents of students warned that '* * * we'll send our sons to cut his hair.'

Fortunately, the school year ended in June without further incident. During the summer, a new written Dress Code was drafted by the Administrative Staff and approved by the Faculty on August 31, 1970. The Code was then submitted to the Student Council, consisting of thirty representatives, and was approved with but one dissent after a change concerning the wearing of sandals without stockings in warm weather was agreed upon. The Code was accepted by vote of the School Board on September 8, 1970, to go into effect at the start of school on September 14, 1970. With reference to hair adornment, the Code provided:

'Hair length will be determined to a large extent by how well it is kept and groomed. Hair will not be allowed to be worn if the length touches or goes past the shirt collar of a regular man's dress shirt, nor will it be allowed when it grown over the ear or ears, nor if it is longer on the forehead than the line established by the eyebrows. When the hair becomes so long that it does not meet all of these conditions, a haircut will be in order. Beards and mustaches of any type are not allowed. Sideburns may be worn *855 but no longer than the bottom of the ear lobe."

I feel the issue of hair length is receiving much more attention and creating more problems than it deserves. One need merely look around him to realize that the younger generation likes a longer hair style and, in time, today's extremes may become *856 the order of the day. But there are far more serious problems in education, as well as out, that warrant our energies and efforts than a debate over the aesthetics and interpretations of hair style. To many of us hair style ceased to be a problem years ago, and while its discussion revives wistful memories, its significance becomes less important

the Court's duty is to determine the constitutionality of hair regulation and not the wisdom of it.

Therefore, I find (a) that plaintiff's hair style does not constitute free speech within the protection of the First Amendment or a fundamental right under the Ninth Amendment, but is a personal liberty protected by the Fourteenth Amendment; (b) that a student's liberty in a high school environment may be regulated if such regulation is reasonable and necessary to alleviate interference with the educational process; (c) that the hair length limitation in the Blue Ridge Dress Code was proposed in a bona fide attempt to preserve order, to maintain a balance between individual students' rights and the rights of the whole, and to assist the Faculty in the fulfillment of the teaching function; (d) that the regulation was not an attempt by the Principal to impose his personal taste on the student population, but represented a consensus of Administrative, Faculty, Student and School Board opinions, and (e) that under the circumstances of this case, the hair style regulation was reasonable and necessary to alleviate interference with the educational process at Blue Ridge High School.
Plaintiff's complaint will be dismissed.

Subject: Re: the L word

Written By: marthadtox3 on 06/12/04 at 7:59 am

beware of unedited thoughts

The defendants make much--too much--of the fact that in 1978, two years before the event in issue, Pheterson had brought a personal-injury suit, later dismissed, in which he claimed to have suffered brain damage as a result of being exposed to dry-ice fumes (i.e., carbon dioxide); of his subsequent statements that the carbon-dioxide poisoning had caused an impairment of his memory; and of a letter that Pheterson wrote to an assistant United States attorney in which he discussed the conflict between his "oversoul" and his "undersoul." In fact there is no indication that Pheterson had suffered significant brain damage caused by dry-ice fumes or anything else (he was conducting business as usual two years after bringing that suit), or that he had any mental illness, though he admitted that he had a problem remembering things--a type of problem too common, however, to be suggestive of a mental disease or defect that psychiatry might elucidate. The letter in question is rambling, weird, but not demented. The reference to a conflict between the "oversoul" and the "undersoul"--between what Freudian psychologists call the superego and the id, and what laymen a generation ago called one's "good angel" and one's "bad angel"--is not evidence of mental illness. The letter was a rough draft that Pheterson was reluctant to turn over to the assistant United States attorney; and many rough drafts, like the unedited thoughts that run through people's minds, are pretty strange

Subject: Re: the L word

Written By: marthadtox3 on 06/12/04 at 8:00 am

The facts of this case resemble a bad spy novel. David Taketa was the Special Agent in charge of the DEA office at McCarran International Airport in Las Vegas, Nevada. He shared the office with Thomas O'Brien, an NBI officer assigned to the DEA airport office for the purpose of joint federal-state investigations, but not working directly for the DEA. Another DEA agent, Leroy Kenneth Hartung, also worked at the airport office.
On April 3, 1986, DEA Agent Beth Walther Latheberry reported to Joseph Catale, the Resident Agent in Charge of DEA operations in Las Vegas, that Taketa had shown her how to modify a pen register to intercept telephone conversations illegally. Catale initiated an investigation. DEA Special Agent Peter MacVean from the Los Angeles technical operations group was sent to assist.
FN1. A pen register is a device that records the numbers dialed from a monitored telephone. Its use is not constrained by the fourth amendment. Smith v. Maryland, 442 U.S. 735, 745-46, 99 S.Ct. 2577, 2582-83, 61 L.Ed.2d 220 (1979). However, during the period in question it was DEA policy to obtain judicial authorization prior to using a pen register. See United States v. New York Telephone Co., 434 U.S. 159, 168-69, 98 S.Ct. 364, 370-71, 54 L.Ed.2d 376 (1977). Pen register authorization does not allow the tapping of the targeted telephone to
intercept the contents of calls, because wiretaps are limited by the special requirements of Title III, 18 U.S.C. §§ 2510-20 (Supp. IV 1986).

The airport office consisted of a large office with two smaller offices attached. Hartung used the larger general office, while Taketa and O'Brien each used one of the smaller private offices. Although the airport office was under Catale's authority, its operations tended to be independent from those of the downtown office.
On the night of April 24, 1986, Catale and MacVean entered the airport office by means of a master key Catale had obtained from Hartung. The doors to the inner offices were open. Catale and MacVean examined the airport office to determine the feasibility of installing video surveillance equipment the next time the office was authorized to operate a pen register.
In May 1986, the airport office received authority to use a pen register in an investigation of one Eugenio Rodriguez. On the night of May 15, 1986, Catale, MacVean, and another agent reentered the airport office. They did not see the pen register in *669 the large general office or in Taketa's office. The agents determined that the pen register was operating in O'Brien's office because that was where the phone lines terminated. O'Brien's door was locked, and the agents did not have a key. They forced the lock with a plastic card and entered O'Brien's office. Inside, they found a pen register in operation. A cable ran from the pen register to a briefcase. The agents opened the briefcase. Inside it they found a Bell & Howell "intelligence kit" used for covert audio surveillance. The intelligence kit was recording telephone calls picked up by the pen register; in fact, a call was recorded while the agents were in O'Brien's office.
The agents removed and copied the audio tape found in the intelligence kit and then inserted a duplicate tape in place of the original. They took photographs of the scene, and installed a hidden video camera in the ceiling of the office. The video camera photographed only the area of the office in which the pen register and intelligence kit were located; it did not have audio capability. On May 16, MacVean obtained a search warrant for the airport office based on what he had learned during his covert entry. Between May 16 and May 19, MacVean entered the airport office twice more at night to replace tapes in the surveillance camera. The doors to the inner offices were open on both occasions. On May 19, 1986, DEA agents executed the search warrant, seizing numerous personal and business items from Taketa and O'Brien.
The appellants were indicted on several counts of illegal interception of wire communications, conspiracy to intercept such communications, and use of intercepted communications, all in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20.

Subject: Re: the L word

Written By: marthadtox2 on 06/16/04 at 8:37 am

A strange story .... could it be true?????

The transactions that preceded the indictment in this case are unusual, if not bizarre. Most of the evidence was undisputed.
The prosecution presented evidence that Schlei, and others attempted to sell certain financial instruments in the United States. Schlei and his salespersons represented that these financial instruments had been issued by the government of Japan or the Dai-Ichi Kangyo Bank. The instruments were labeled "Certificates of Balance of Redemption, Series 57" (the "bond certificates"), with face amounts ranging from ten billion yen to 500 billion yen, and cashier's checks allegedly issued by the Dai-Ichi Kangyo Bank (the "bank notes"), each drawn for fifty billion yen. The bond certificates were purportedly issued by the government of Japan in exchange for money or property received from the bond certificate holders or payees.
The prosecution's theory at trial was that Schlei had actual knowledge, or deliberately closed his eyes, to the fact that these financial instruments were worthless because they were not issued by the government of Japan or the Dai- Ichi Kangyo Bank. Schlei testified that he believed that the instruments were valid but that corrupt officials of the government of Japan had falsely claimed that they were not genuine. The jury was persuaded beyond a reasonable doubt that the bond certificates and bank notes were not genuine and that Schlei had the requisite criminal intent to defraud when he represented to prospective purchasers that these instruments were valid.

A. Background
Schlei argues that the judgment must be reversed because the Government failed to present evidence that he intended to defraud anyone in attempting to sell the bond certificates and the bank notes. He asserts that the record shows that he informed each prospective buyer that the government of Japan claimed that these financial instruments were not valid. He also maintains that fraud has not been demonstrated because no reasonable person would have purchased these instruments without receiving confirmation of their validity from the Japanese government, in view of their extraordinary face value and the disclosures made to prospective purchasers. In addition, Schlei contends that the evidence is also insufficient to demonstrate that he directly or indirectly participated in the sale of a bond certificate to undercover officers in Tampa, Florida.

FN2. According to the parties, the United States currency equivalent for the bond certificates ranged from one hundred million dollars for a ten billion yen bond certificate, to five billion dollars for a five hundred billion yen bond certificate. The fifty billion yen bank notes were equivalent to five hundred million dollars.

  In discussing whether the evidence is sufficient to sustain the judgment of conviction against Schlei, we are required to review the facts produced at trial by the parties in the light most favorable to the Government. United States v. Calhoon, 97 F.3d 518, 523-24 (11th Cir.1996), cert. denied, 522 U.S. 806, 118 S.Ct. 44, 139 L.Ed.2d 11 (1997). In reviewing a sufficiency claim, we "accept all reasonable inferences and credibility choices made in the government's favor, *953 to determine whether a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt." Id. at 523. "We also review de novo whether there was sufficient evidence to support the convictions." Id.
1. The Source of the Financial Instruments
In the early part of 1985, Sam M. Han, a Korean-American, met with C.K. Lee, a fellow Korean-American, and T. Hiraki, a Japanese national, in Los Angeles, California. Lee and Hiraki told Han that they represented certain persons who wanted Han's assistance in getting the government of Japan to acknowledge the validity of the bond certificates and bank notes. Han was told by Hiraki and Lee that the government of Japan claimed that the financial instruments were not genuine and had refused to honor them. Han urged Lee and Hiraki to seek legal advice.
In March of 1985, Han and Lee met with Schlei at his law office in Los Angeles to discuss negotiation of the financial instruments. Han and Lee informed Schlei that the government of Japan would not negotiate with them without pressure from outside of Japan. Sometime shortly thereafter, Schlei met with Han and Lee, as well as a group of Japanese nationals, including Toshio Takahashi. Schlei, Han, and Takahashi later traveled to Japan and interviewed persons who possessed some of the bond certificates and bank notes. The holders of these instruments informed Schlei and Han that they received them from a woman named Hatsu Aoyagi.
On April 8, 1985, Schlei and Han met with Stanley Sporkin, the general counsel for the Central Intelligence Agency ("CIA"). At this meeting, Schlei told Sporkin that he had been informed by a group of Japanese citizens that a secret, two billion dollar fund had been accumulated by General Douglas MacArthur during the American occupation of Japan. Schlei stated the secret fund came from money confiscated from foreigners, the imperial family, and property seized during Japan's occupation of Korea. Schlei's alleged informants referred to it as the Marquat Fund (the "M Fund"). Schlei told Sporkin that the fund was administered by the United States and the Liberal Democratic Party in Japan. Schlei related that he was informed that in 1958, then-Vice President Nixon promised to give Okinawa to Japan and turn control of the M Fund over to Japan in exchange for Japan's support in electing him president of the United States. Schlei told Sporkin that a woman who had been indicted for the forgery of these financial instruments had been acquitted of that charge.
Sporkin testified that Schlei declared that he wanted the CIA to know he was going to try to present these instruments for payment and "wanted to give a heads up to a possible political problem." Sporkin informed Schlei that he knew nothing about the financial instruments or the M Fund, and that the story Schlei had related "seem extraordinary." Sporkin also testified that he thought "it was a crazy idea, prespammersite."
Sporkin promised Schlei that he would call him to indicate whether the CIA had any interest in Schlei's plan to attempt to sell the bond certificates and the bank notes. In a subsequent telephone call, Sporkin told Schlei that the CIA had no interest in the proposed sale of the financial instruments because "t was a private matter."
After returning to Los Angeles, Schlei agreed to provide legal representation to Hiraki, Takahashi, Lee, and Han "in relation to the negotiation and cashing of certain checks and other instruments."

FN3. The undated written retainer agreement reads as follows:

Subject: Re: the L word

Written By: Leo Jay on 06/16/04 at 10:14 am

I don't get this thread -- is it in the right place?  Am I missing something?

Subject: Re: the L word

Written By: marthadtox3 on 06/16/04 at 11:32 am


This thread started out after a discussion on the boards about the process of making an amiright CD and there was a discussion about the legal issues eg copyright etc... that  thread was called the L word( meaning "law")
I carried it on as a law/music humour thread using initially extracts from funny law suits connected to coyright law, music etc ( there are lots of the original cases still there in the archive)  since then I have expanded the scope of it to cover just odd or funny law suits not only law suits about music and musicians...although I still come up with those from time to time...  All the text is taken from the words of a judge in a law suit

The purpose is merely for amusement for those who find such things amusing...  maybe that is only me Philbo and John... but maybe not as it does get a few hits...

Subject: Re: the L word

Written By: marthadtox3 on 06/21/04 at 2:00 am

Speakeasies and coffeeshops    another sideways look at US musical/cultural history... a partial victory for the jazz musicians of New York....

part 1 :  the problem

Plaintiffs are three individuals and a musician's union, who work and thrive within the jazz community of New York City. Warren Chiasson primarily plays the vibraphone; Mark Morganelli plays the trumpet; Carol Cass is a jazz singer; and Local 802 of the American Federation of Musicians is a craft union which has members who play wind, brass and percussion instruments. These plaintiffs have brought a declaratory judgment action to challenge the constitutionality of a New York City Ordinance and **501 a Zoning Resolution which they contend is arbitrary and infringes upon their constitutionally protected right to freedom of expression.
The motion now before me is for mandatory injunctive relief against the enforcement of these provisions (CPLR 6301). Plaintiffs contend that the continued enforcement of these unconstitutional provisions cause them irreparable damage in that they have been unable to play the instruments of their choice at certain clubs. Because of the restriction in the law as to type and number of musical instruments which they can play in unlicensed or non-cabaret establishments these plaintiffs cannot work in small jazz clubs or coffee houses.
The complex regulatory scheme at issue is governed by Article 38 of the Administrative Code of the City of New York. Under this scheme cabarets, public dance halls, and catering establishments must be licensed. (Ad. Code § B32-297.0). A cabaret is defined as any place where entertainment such as music, singing or dancing is offered in connection with the sale of food or drink. (Ad. Code § B32-296.0). However, there is an exemption from this licensing requirement for eating and drinking establishments which provide incidental musical entertainment. Incidental musical entertainment is defined as that which is provided, "either by mechanical devices or by not more than three persons playing piano, organ, accordian or, guitar, or any stringed instrument or by not more than one singer accompanied by himself or by a person playing piano, organ, accordian, guitar, or any stringed instrument" (Ad. Code Section B32-296.0).
A similar distinction is contained in the Zoning Resolutions. In certain local retail districts, under *642 Section 32-15 only, eating or drinking places which provide incidental musical entertainment are permitted. The definition of incidental musical entertainment parallels the definition in the Administrative Code but does not encompass the singer. Section 32-21 of the Zoning Resolution permits eating or drinking places in certain commercial districts without restriction on entertainment or dancing.
The plaintiffs challenge the manner in which the law defines the term "incidental musical entertainment". They contend that this definition is arbitrary and capricious and discriminates against them, because it excludes wind, brass and percussionist instrumentalists and limits the players to three. Therefore, as jazz musicians, the law strenuously impairs their ability to perform in New York, and denies them due process and equal protection of the laws as well as freedom of expression. Simply put, they contend that there is no rational basis for limiting to three the number of musicians who can play in these unlicensed clubs, nor is there a rational basis for permitting only a piano, organ, accordian, guitar or string instrument to play.

Subject: Re: the L word

Written By: marthadtox3 on 06/21/04 at 2:01 am

part 2 the arguments....

The plaintiffs contend that there is no statement of legislative intent which adequately explains this distinction. However, it appears that cabaret licensing was introduced in the City in 1926, as part of an effort to control speakeasies (Recommendation No. 10, Proceedings of Bd. of Alderman and Municipal Assembly of City of New York, December 7, 1926, at p. 577). The report of the Committee on Local Laws stated the purpose of the bill:
"... there has been altogether too much running 'wild' in some of these night clubs and, in the judgment of your committee, the 'wild' stranger and the foolish native should have the check-rein applied a little bit (Ibid.)"
In 1936, the definition of a cabaret was amended to add the exception for mechanically reproduced music and for a player piano. In 1961, the administration of the law was transferred to the Department of Licenses (now under the Department of Consumer Affairs) and a special licensing system for coffee-houses was established. Local Law 95 of March 29, 1961 provided an exception for those "coffee houses" which provided incidental musical entertainment without dancing, either by mechanical devices, or by not more than three persons playing piano, organ, accordian, guitar, or any other string instrument. Thus, only certain coffee-houses had *643 to be licensed, others which provided only incidental musical entertainment did not.
**502 In 1971, the Cabaret Law was changed to its present form and that portion of the exemption for musical entertainment that was contained in the "coffee house law" was incorporated into the exemption under the Cabaret Law. In 1979, Article 39 of the Administrative Code which governed the licensing of coffee houses was repealed. There is no indication why the City Council adopted the definition of incidental musical entertainment which was contained in the coffee house ordinance.
Plaintiffs suggest that there is no expression of the intent of the legislature, either in introducing the limit of three with respect to the number of instruments, or in the choice of instruments. Rather, the selection of instruments seemed to fit the pattern of what was expected in a coffee-house as they were identified with the sound, for example, of folk or ethnic music. It is the contention of the plaintiffs that this loose and arbitrary scheme cannot withstand a constitutional attack.
One explanation which the defendants offer for excluding certain types of instruments and for limiting the number to three is noise control. However, as plaintiffs note, that explanation is unpersuasive for under modern conditions of amplification, music from "mechanical devices" such as stereos and electric guitars is as loud as, if not louder than, music from wired and percussion instruments.
Moreover, as the plaintiffs explain, the noise control justification is severely undercut by the enactment of a recent ordinance. Administrative Code 1403.3-5.2 limits to 45 decibels the volume of sound audible in a building, but outside the room, where amplified music is being played. As stated in the affidavit of the president of the local union, John Glasel, this bill was initially offered as a part of a compromise package to the City Council, in which reform in the definition of "incidental music" was offered, together with a noise-control ordinance. On December 31, 1985 the "Noise Bill" was passed. The other did not. As a result, the amount of noise audible outside an establishment where music is played is limited, regardless of what instruments are played and regardless of whether the band is a trio or a quartet. Therefore plaintiffs claim, there is no constitutional interest which is furthered through limiting the types of instruments which can be played at these unlicensed establishments.
Defendants' opposing papers barely make reference to this *644 particular argument regarding noise control and the enactment of the noise decibel bill. Rather, the defendants assert that the ordinances and zoning resolutions serve a significant and valid public purpose. It is submitted in the affidavit of Julius Spector, Chief Engineer of the Department of City Planning that the zoning provisions are specifically designed to safeguard the noise, crowding and congestion which entertainment establishments frequently produce if these establishments are not restricted in some way.

Subject: Re: the L word

Written By: marthadtox3 on 06/21/04 at 2:01 am

part 3  the judgement.... 

There are essentially two portions of these laws which plaintiffs challenge; that which limits the number of musicians to three, and that which restricts the type of instruments. It is clear that defendants have simply failed to set forth what, if any substantial governmental interest is furthered by refusing to permit percussion, wind, and brass instrumentalists to play in unlicensed clubs. A licensing scheme which ensures that the regulated activity conforms to certain health and safety requirements will be upheld (Merco Properties, Inc. v. Guggenheimer, supra). However, when the ordinance does not rationally relate to state concerns and infringes upon a protected liberty, it should not be sustained. It has already been noted in People v. Walter, 106 Misc.2d 359, 431 N.Y.S.2d 776 Crim.Ct. NY Co., 1980, that mechanical devices today may create more noise than any three piece band. In addition, any problem with noise control has already been adequately addressed by the noise audible law.
For the same reasons, the restriction on the type of instrument which can accompany a singer also fails to further a legitimate state interest.
    However, while the City has failed to persuasively articulate what interest it has in restricting the type of instrument to largely stringed instruments, it has advanced a legitimate reason for limiting the number of instruments

Subject: Re: the L word

Written By: marthadtox3 on 06/27/04 at 3:05 pm

another judge who cannot reisst the temptation to burst into song

par*1 Defendant Marshall Bruce Mathers, III, a/k/a Eminem Slim Shady (hereinafter referred to as "Defendant") has filed a motion for summary disposition pursuant to MCR 2.116(C)(10). Plaintiff requests the Court deny Defendant's motion.
Defendant is a successful hip-hop/rap music artist who attended Dort Elementary School in Roseville Michigan, Macomb County. Plaintiff also attended Dort Elementary School during the same time period. This lawsuit arises out of the lyrics contained in Defendant's 1999 song entitled "Brain Damage", released on the "Slim Shady LP", and statements attributed to Defendant during an interview regarding the Brain Damage song published in Rolling Stone Magazine. The lyrics of Brain Damage and remarks by Defendant about the song recapture in part the alleged harassment Defendant received from Plaintiff while at school. The lyrics also describe an alleged incident where Plaintiff beat up Defendant in the bathroom of the school.
Plaintiff filed his complaint against Defendant on August 21, 2002. Plaintiff contends that the lyrics in Brain Damage about him are untrue, and have hurt his reputation. Count 1 of Plaintiff's complaint alleges invasion of privacy false light relating to the lyrics contained in the song Brain Damage. Count 2 of Plaintiff's complaint alleges false light relating to the April 29, 1999 article in Rolling Stone Magazine written by Anthony Bozza where Defendant allegedly made false statements about Plaintiff.
Defendant contends that summary disposition is appropriate as Plaintiff has failed to create a genuine issue of material fact whether Defendant's lyrics and statements were made with a reckless disregard for the truth and highly offensive. Defendant also contends that the lyrics and statements are not actionable under the substantial truth doctrine, and on the basis that the complained of information had been previously disclosed to the public. Defendant further contends that the statements constitute loosely definable language that can not be proven true or false and therefore are protected under the First Amendment right to freedom of speech and expression.
A motion pursuant to MCR 2.116(C)(10) tests the factual support of a claim. Maiden v. Rozwood, 461 Mich. 109, 120; 597 NW2d 817 (1999). Affidavits, depositions, admissions, or other documentary evidence in support of the grounds asserted in the motion must be filed with the motion. MCR 2.116(G)(3). Opinions, conclusionary denials, unsworn averments, and inadmissible hearsay do not satisfy the court rule; disputed fact (or the lack of it) must be established by admissible evidence. SSC Associates Ltd Partnership v General Retirement System of the City of Detroit, 192 Mich. app 360, 364; 480 NW2d 275 (1991). Once the moving party has met this burden, the party opposing the motion must then come forward with a showing that there is truly a dispute. Id. In reviewing such a motion, a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties in the light most favorable to the party opposing the motion. Maiden, at 120. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. Id. The Court must only consider the substantively admissible evidence actually proffered in opposition to the motion, and may not rely on the mere possibility that the claim might be supported by evidence produced at trial. Id., at 121. When First Amendment freedoms are involved, the Court must make an independent examination of the record to ensure against forbidden intrusions into the field of free expression and to examine the statements and circumstances under which they were made to determine whether the statements are subject to First Amendment protection. Ireland v. Edwards, 230 Mich.App 607, 613; 584 NW2d 632 (1998), citing Northland Wheels Roller Skating Center, Inc v Detroit Free Press, Inc, 213 Mich.App 317, 322; 539 NW2d 774 (1995).
t 1

Subject: Re: the L word

Written By: marthadtox3 on 06/27/04 at 3:06 pm

part 2 the lyric

wouldn't leave, he kept chokin me and I couldn't breathe
FN4. The lyrics to the song Brain Damage in its entirety are as

Scalpel Here Sponge Here Wait ... he's convulsing, he's convulsing! Ah! We're gonna have to shock him! Oh my! Oh my God! We're gonna have to shock him! Oh my God! These are the results of a thousand electric volts A neck with bolts, "Nurse we're losin him, check the pulse!" A kid who refused to respect adults Wore spectacles with taped frames and a freckled nose A corny lookin white boy, scrawny and always ornery Cause I was always sick of brawny bullies pickin on me And I might snap, one day just like that that I decided to strike back and flatten every tire on the bike rack (Whosssssh) My first day in junior high, this kid said, "It's you and I, three o'clock sharp this afternoon you die" I looked at my watch it was one twenty "I already gave you my lunch money what more do you want from me?† He said, "Don't try to run from me, you'll just make it worse ..." My palms were sweaty, and I started to shake at first Something told me, "try to fake a stomach ache it works" I screamed, "Owww! My appendix feels like they could burst! Teacher, teacher, quick I need a naked nurse!" 'What's the matter?" "I don't know, my leg, it hurts!" "Leg?† I thought you said it was your tummy?†" "Oh, I mean it is, but I also got a bum knee!" "Mr. Mathers, the fun and games are over. And just for that stunt, you're gonna get some extra homework."
"But don't you wanna give me after school detention?" "Nah, that bully wants to beat your ass and I'm a let him." Chorus: repeat 2X--Brain damage, ever since the day I was born Drugs is what they used to say I was on They say I never knew which way I was goin But everywhere I go they keep playin my song Way before my baby daughter Hailey I was harassed daily by this fat kid named D'Angelo Bailey An eight grader who acted obnoxious, cause his father boxes so everyday he'd shove me in the lockers One day he came in the bathroom while I was pissin And had me in the position to beat me into submission He banged my head against the urinal til he broke my nose, Soaked my clothes in blood, grabbed me and choked my throat I tried to plead and tell him, "We shouldn't beef" But he just wouldn't leave, he kept chokin me and I couldn't breathe He looked at me and said, "You gonna die honkey!" The principal walked in (What's going on in here?) and started helpin him stomp me I made them think they beat me to death Holdin my breath for like five minutes before they finally left Then I got up and ran to the janitor's storage booth Kicked the door hinge loose and ripped out the four inch screws Grabbed some sharp objects, brooms, and foreign tools "This is for every time you took my orange juice, or stole my seat in the lunchroom and drank my chocolate milk. Every time you tipped my tray and it dropped and spilt. I'm gettin you back bully! Now once and for good." I cocked the broomstick back and swung hard as I could and beat him over the
head with it till I broke the wood Knocked him down, stood on his chest with one foot ... Made it home, later that same day Started reading a comic, and suddenly everything became gray I couldn't even see what I was tryin to read I went deaf, and my left ear started to bleed My mother started screamin, "What are you on, drugs?† Look at you, you're gettin blood all over my rug!" (Sorry!) She beat me over the head with the remote control opened a hole, and my whole brain fell out of my skull I picked it up and screamed, "Look bitch, what have you done?† "Ohm my god, I'm sorry son" "Shut up you (I_am_a_loser_who_has_no_respect_for_women)!" I said, "fudge it!" Took it and stuck it back up in my head then I sewed it shut and put a couple of screws in my neck Chorus.

Subject: Re: the L word

Written By: marthadtox3 on 06/27/04 at 3:08 pm

part 3 the judge's lyrics.....

Based upon the reasons set forth above, Defendant's motion for summary disposition pursuant to MCR 2.116(C)(10) is GRANTED. In compliance with MCR 2.602(A)(3), the Court states this Opinion and Order resolves the last claim and closes the case.
FN11. To convey the Court's opinion to fans of rap, the Court's research staff has helped the Court put the decision into a universally understandable format:

Mr. Bailey complains that his rep is trash So he's seeking compensation in the form of cash Bailey thinks he's entitled to some monetary gain Because Eminem used his name in vain

Eminem says Bailey used to throw him around Beat him up in the john, shoved his face in the ground Eminem contends that his rap is protected By the
rights guaranteed by the first amendment

Eminem maintains that the story is true And that Bailey beat him black and blue In the alternative he states that the story is phony And a reasonable person would think it's baloney

The Court must always balance the rights Of a defendant and one placed in a false light If the plaintiff presents no question of fact To dismiss is the only acceptable act

If the language used is anything but pleasin' It must be highly objectionable to a person of reason Even if objectionable and causing offense Self-help is the first line of defense

Yet when Bailey actually spoke to the press what do you think he didn't address? Those false light charges that so disturbed Prompted from Bailey not a single word

So highly objectionable, it could not be--Bailey was happy to hear his name on a CD

Bailey also admitted he was a bully in youth Which makes what Marshall said substantial truth This doctrine is a defense well known And renders Bailey's case substantially blown

The lyrics are stories no one would take as fact They're an exaggeration of a childish act Any reasonable person could clearly see That the lyrics could only be hyperbole
It is therefore this Court's ultimate position That Eminem is entitled to summary disposition.

Mathers v. Bailey
2003 WL 22410088 (Mich.Cir.Ct.), 31 Media L. Rep. 2575

Subject: Re: the L word

Written By: philbo on 06/28/04 at 12:07 pm

Now who could argue with that tract?  That judge is cool, an that's a fact

Subject: Re: the L word

Written By: marthadtox2 on 06/28/04 at 12:16 pm

Excellent  Phil  I will try and keep this one going .. but have top run right time..

Subject: Re: the L word

Written By: marthadtox3 on 06/28/04 at 6:40 pm

I wonder how often he had to rehearse
this jurisprudential example of verse
and I hope that young Mathers was grateful that he
took the trouble to explain it  so coloquially
with street argot now that judge seems quite au fait
maybe the next time he'll get carried away
and if it get really bad gets gets too vulgar and crude
he can just l can send himself off to the slammer
for a couple of weeks to brush up his grammar.


Subject: Re: the L word

Written By: marthadtox3 on 06/28/04 at 6:45 pm

oops a line got lost don't know where it went 

should have read
I wonder how often he had to rehearse
this jurisprudential example of verse
and I hope that young Mathers was grateful that he
took the trouble to explain it  so coloquially
with street argot now that judge seems quite au fait
maybe the next time he'll get carried away
and if it get really bad gets gets too vulgar and crude
he can just charge himself with contempt for being rude
and then he can send himself off to the slammer
for a couple of weeks of remedial grammar.

Subject: Re: the L word

Written By: philbo on 06/29/04 at 6:16 am


...other than that, I don't know what to add..

Subject: Re: the L word

Written By: marthadtox3 on 07/06/04 at 6:37 pm

Bizarre law suits no 5768.........

United States District Court,
D. Rhode Island.
John Robert DEMOS, Petitioner
Doug WADDINGTON, President George Bush, The U.S. Attorney General, The Queen of
England, Respondents.
C.A. No. 03-489-S.
Jan. 20, 2004.
John Robert Demos, Pro Se, Aberdeen, WA, for Plaintiff.

WILLIAM E. SMITH, District Judge.
*1 Before the Court is a Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the "Petition") filed by John Robert Demos ("Petitioner") in the above matter.

...... In addition, Petitioner makes a number of other arguments and assertions which can only be described as frivolous and bizarre. These include claims that because the 50 states are owned and controlled by the British Empire, British law supersedes United States law; that defects in the Declaration of Independence make the governments of the individual states null and void; that England is a creditor of the United States; and that all federal law, as well as British law (including the Magna Carta of England) is contractual in nature.

Subject: Re: the L word

Written By: marthadtox3 on 07/06/04 at 6:39 pm

Who is the real Osama Bin Laden???????????

U.S. v. Bin Laden
126 F.Supp.2d 290

Usama BIN LADEN, a/k/a "Usamah Bin-Muhammad Bin-Ladin," a/k/a "Shaykh Usamah
Bin-Ladin," a/k/a "Abu Abdullah," a/k/a "Mujahid Shaykh," a/k/a "Hajj," a/k/a
"Abdul Hay," a/k/a "al Qaqa," a/k/a "the Director," a/k/a "the Supervisor,"
a/k/a "the Contractor,"

Defendants accused of participating in bombings of United States embassies in Kenya and Tanzania

Subject: Re: the L word

Written By: marthadtox3 on 07/13/04 at 2:51 am

pole dancing and the ist amendment......


Properly applied, the fourth prong of the Erie content-neutral test requires us to consider whether the ordinance imposes too great an incidental burden on speech. Before engaging in this analysis, we must first frame the issue precisely. The only constitutional right here (albeit one "marginally" within the "outer perimeters" of the First Amendment, Barnes, 501 U.S. at 566, 111 S.Ct. at 2460) is the erotic message implicit in nude or semi-nude dancing. There is no general right to take one's clothes off in public. Nor is there a constitutional right to wear pasties and G-strings rather than the lingerie-like tops and bottoms required by the Henrico *516 ordinance. Thus, we cannot ask whether requiring slightly more clothes restricts the erotic dancer's right to be less clothed. "Being 'in a state of nudity,' " after all, "is not an inherently expressive condition." Erie, 529 U.S. at 289, 120 S.Ct. at 1391. Instead, we must ask whether the ordinance unduly burdens the dancer's ability to express her erotic message by requiring her to cover up slightly more of her body with slightly more fabric.
Erie held that going from complete nudity to being partly clothed (with pasties and a G-string) involved a de minimis impact on the ability of a dancer to express eroticism. Erie, 529 U.S. at 294, 120 S.Ct. at 1393-94. The Henrico ordinance, in contrast, does not involve a transition from totally nude to partly clothed, but rather one from partly clothed to slightly more partly clothed. If going from naked to non-naked involves a constitutionally insignificant difference in degree, **779 then the incrementally more fabric required by the Henrico ordinance can hardly constitute a constitutionally fatal difference. In this respect, the Henrico ordinance involves no more of a burden on the dancer's free speech than the Erie requirement to wear some form of clothing in the first place. The dancer's erotic message still reaches its intended audience. The additional clothing just "makes the message slightly less graphic." Barnes, 501 U.S. at 571, 111 S.Ct. at 2463.
In other words, the pasties and G-string requirement should be understood as the "bare minimum necessary to achieve the state's purpose." Barnes, 501 U.S. at 572, 111 S.Ct. at 2463. It necessarily follows that this requirement does not represent "the maximum requirements of dress that an anti-nudity ordinance may impose.". Thus, by going slightly beyond the pasties and G-string requirement, the Henrico public nudity ordinance did not so prejudice the eroticism inherent in the dancer's expressive conduct as to run afoul of the First Amendment.

Subject: Re: the L word

Written By: marthadtox3 on 07/13/04 at 2:53 am

  Moreover, in determining whether "particular conduct possesses sufficient communicative elements to bring the First Amendment into play," we should consider not only the messenger's intent but also whether "the likelihood was great that the message would be understood by those who viewed it."). Along these same lines, we do not accept appellants' unstated assumption that the more graphic the dancer's display of nudity the more erotic her message necessarily becomes. While that may be true at the extremes (like the contrast between a dancer in a snow skiing suit and one completely naked), it is not true at the margins (like the contrast between a dancer wearing almost nothing and one wearing slightly more than almost nothing).

Subject: Re: the L word

Written By: marthadtox3 on 07/13/04 at 2:54 am

3.  Moreover, in determining whether "particular conduct possesses sufficient communicative elements to bring the First Amendment into play," we should consider not only the messenger's intent but also whether "the likelihood was great that the message would be understood by those who viewed it."). Along these same lines, we do not accept appellants' unstated assumption that the more graphic the dancer's display of nudity the more erotic her message necessarily becomes. While that may be true at the extremes (like the contrast between a dancer in a snow skiing suit and one completely naked), it is not true at the margins (like the contrast between a dancer wearing almost nothing and one wearing slightly more than almost nothing).

Subject: Re: the L word

Written By: marthadtox3 on 07/13/04 at 2:57 am

  4. victory for the right to engage in pole dancing......

T]he Supreme Court of the United States views nude dancing expressive conduct that is entitled to some quantum of protection under the First Amendment. Hence, though the subject matter here is, as the Plaintiffs admit, mundane, it involves a well-settled right under the First Amendment. The exercise of that right may be circumscribed by local law, but the law, as applied, must allow the conduct permitted by the First Amendment. The law, of course, must clearly define the proscribed conduct and must be enforced equally, and not arbitrarily or capriciously, when it is applicable.
When measured against these precepts, the Ordinance is troublesome. On its face, as admitted by the Commonwealth's *536 Attorney, the Ordinance would make it unlawful for a mother to nurse her child in public, conduct that often occurs in today's society and that is widely accepted. It, by admission of the Commonwealth's Attorney, would prohibit the wearing of bathing suits commonly sold in the County and worn at its public pools and at private clubs, though the Ordinance would not necessarily be enforced against each technical violation. Though admitting that both were technically violative of the Ordinance, the Commonwealth's Attorney would permit Jennifer Lopez to wear one famously revealing dress, but prohibit her from wearing another as to which it is difficult to discern a difference. Some of these violations would be prosecuted; others would not.
The Ordinance contains a provision, section (c), that permits the very conduct engaged in by and at Gold City to be performed in a different, but nonetheless public, venue. Mr. Kizer testified that, while a ballet at a dance hall, featuring completely nude dancers for the duration of the performance, would not be prohibited by the Ordinance, dancing in pasties and G-strings on the stage at Gold City does not fall under the exception. Section (c) has serious exposure to constitutional challenge as to its application, especially in perspective of Mr. Kizer's testimony that the content of constitutionally protected expressive conduct plays a role in assessing **789 whether that conduct violates the Ordinance.
Colonial First Properties, 166 F.Supp.2d at 1090.
I would reverse the judgment of the trial court and dismiss the convictions.
Boyd v. County of Henrico
592 S.E.2d 768, 42 Va.App. 495

Subject: Re: the L word

Written By: philbo on 07/13/04 at 4:44 am

The judge involved must have thought about this one long and hard...  I wonder how much research he (and I'll bet it was a "he") did?

Subject: Re: the L word

Written By: marthadtox3 on 07/14/04 at 5:42 am

about the same amount as he did for this one......


Simulated Sexual Conduct

Plaintiff argues that the City's ordinance that restricts "simulated sexual conduct" in adult cabarets is overbroad because the ordinance does not provide an exemption for "simulated sexual conduct" that is not obscene. Pl's Mot. for Sum. J., docket no. 18, p. 11-12.

The provision of the ordinance at issue provides that:
No employee or entertainer shall perform actual or simulated acts of sexual conduct as defined in this chapter, or any act, which constitutes a violation of Chapter 7.49A RCW, the Washington Moral Nuisance Statute.

SMC § 5.10.070(A)(5). A violation of this section is a misdemeanor under SMC § 5.10.110 and provides a basis for license suspension under SMC § 5.10.090(A).

Although the "simulated sexual conduct" provision does not provide an exemption for nonobscene expression, the City argues that the ordinance does have such an exemption in its definition of "adult entertainment."

The definition of "adult entertainment" provides that "Adult entertainment means any exhibition, performance, or dance which is not obscene." SMC § 5.10.010(B) (Emphasis added). However, SMC § 5.10.070(A)(5), the "simulated sexual conduct" provision, applies to any "employee or entertainer." An "entertainer" is defined as "any person who provides adult entertainment within an adult cabaret." SMC § 5.10.010(F). Thus, the provision regulating "simulated sexual conduct" is necessarily regulating conduct that is not obscene, because it regulates the conduct of entertainers who provide nonobscene adult entertainment.
The City argues that a number of other courts have addressed similar prohibitions on sexual conduct and held that the prohibition was not facially unconstitutional. In support of its argument, the City relies upon.

Both Ino Ino and Deja Vu involved challenges to identical prohibitions on "sexual conduct" as at issue in the present case. However, in both of those cases, there was an exemption in the ordinances for conduct that is not obscene

(The ordinance provided that "This chapter shall not be construed to prohibit: ... 3. Exhibitions, performances, expressions or dances that are not obscene."); Deja Vu, 46 F.Supp.2d at 1089 (same).

In contrast to both Ino Ino and Deja Vu, the ordinance at issue in the present case does not contain such an exemption for nonobscene expression.

Although the exemption in the ordinance in Deja Vu went on to provide that the exemption did not "apply to sexual conduct defined in Section IV," the ordinance is nonetheless distinguishable from that in the present case. In Deja Vu, because the ordinance had an exemption for nonobscene expression, the court was able to construe the "dramatic works exemption carve-out to apply only to pure conduct without expressive value and to obscene expression." 46 F.Supp.2d at 1091. However, the ordinance at issue in this case is not capable of such a construction because there is no exemption for nonobscene expression at all in the ordinance.

The original Ordinance No. 139 had an exemption for nonobscene expression, but it was removed when the Shoreline City Council enacted Ordinance No. 318. Mattioli Decl., docket no. 23, Ex. 5, p. 15. Without such an exemption, the prohibition on "sexual conduct" necessarily results in a complete ban on certain nonobscene expression.

As a number of courts have recognized, governments cannot ban absolutely a protected form of expression. See (Government cannot regulate the content of nonobscene expression when viewed only by consenting adults).

In Schultz, the ordinance banned "specified sexual activities," which were defined as "the fondling or erotic touching of human genitals, pubic region..." Id. at 846 (citing Section III(A) of the city's ordinance). The court held that by restricting the particular movements and gestures of the erotic dancer, the ordinance unconstitutionally burdened expression. Id. at 847. The court stated that none of the Supreme Court precedent permits a government's restriction on nonobscene adult entertainment. Id. at 848. In Brownell, the issue was whether an ordinance banning "actual or simulated sexual intercourse...whether clothed or unclothed" was constitutional. 190 F.Supp.2d at 478. The court stated, "o long as it is not obscene, however, expressive conduct may not be regulated solely on the basis of its content." . Having found that the restriction was aimed at the expressive nature of the conduct, the court concluded that, "there is no basis upon which to believe that the restrictions will in fact further important or substantial governmental interest asserted here, i.e., the curbing of adverse secondary effects, and even if it did, these restrictions fail to comply with O'Brien's mandate that 'the incidental restrictions on the alleged First Amendment freedoms no greater than essential to the furtherance of that interest.' " . (

Under O'Brien, an ordinance that burdens nonobscene expression is valid if: (a) there is a substantial government interest; (b) the regulation furthers that government interest; (c) the interest is unrelated to the suppression of free expression; and (d) the restriction is no greater than is essential to the furtherance of the government interest. See
In this case, there is no dispute that there is a substantial governmental interest in the City of Shoreline's regulations of adult cabarets. However, the interest must be unrelated to the suppression of free expression and the restriction must be no greater than is essential to the furtherance of that interest. The ordinance at issue does not simply require some minimal amount of clothing, see  ("pasties" and "g-strings" restriction was not unconstitutional), nor does it focus on the distance between entertainer and the patron, see )

(four-foot rules "do not ban expression but impose temporal or geographic limitations as time, place, or manner restrictions."). The ordinance directly restricts the manner in which the dancers perform and the message that they convey. The court's reasoning in Schultz is instructive on this issue,
By restricting the particular movements and gestures of the erotic dancer...Section VIII(A) of the Ordinance unconstitutionally burdens protected expression. The dominant theme of nude dance is "an emotional one; it is one of eroticism and sensuality." . Section VIII(A) deprives the performer of a repertoire of expressive elements with which to craft an erotic, sensual performance and thereby interferes substantially with the dancer's ability to communicate her erotic message.... "Because this speech is not obscene, the government may not simply proscribe it."
228 F.3d at 847.
Similarly, the ordinance in the present case deprives dancers of nonobscene forms of expression. Although the City may have a substantial interest in curtailing the secondary effects of nude dancing, the "simulated sexual conduct" provision of the ordinance sweeps under its prohibition constitutionally protected nonobscene forms of expression.

Therefore, the ordinance is unconstitutional on its face and must be amended to exempt nonobscene forms of expression.

Subject: Re: the L word

Written By: philbo on 07/14/04 at 6:24 am

The dominant theme of nude dance is "an emotional one; it is one of eroticism and sensuality."

Er.. yeah, right... got that, I think

Therefore, the ordinance is unconstitutional on its face and must be amended to exempt nonobscene forms of expression.

Fortunately I wasn't drinking anything when I read that... it'd have been all over the keyboard otherwise ;)


Subject: Re: the L word

Written By: marthadtox3 on 07/15/04 at 5:14 pm

another tricky question for his honour

Both Ordinances prohibit simulated sexual intercourse. Arguably, reasonable people could disagree whether an erotic dancer moving her hips in a certain fashion or doing a "pole dance," whether by herself or with another dancer, is simulating sexual intercourse or merely dancing in an erotic and constitutionally protected manner.

Both Ordinances also prohibit erotic touching of female breasts. Arguably, reasonable people could disagree whether a female dancer lightly running her fingers across her cleavage while performing a dance constitutes such activity or is a constitutionally protected, erotic expression.

If a censor inspecting an adult cabaret establishment were to conclude that a dancer moving her hips or doing a pole dance in a certain fashion were performing a specified sexual activity, then the establishment's adult use and/or liquor license is subject to revocation by the appropriate Village authorities. In other words, a censor could arguably chill protected speech for a period of time prior to any judicial determination.

Subject: Re: the L word

Written By: marthadtox3 on 07/18/04 at 6:35 am

nice work if you can get it department........ no 4756

Court of Appeals of Texas,
El Paso.
Trisha UNDERWOOD, Appellant,
The STATE of Texas, Appellee.
No. 08-03-00061-CR.
Dec. 4, 2003.

Background: Defendant was convicted in the County Court at Law, Ector County, of public lewdness by sexual contact. Defendant appealed.

Holding: The Court of Appeals, Susan Larsen, J., held that evidence was insufficient to establish that defendant intended to arouse or gratify undercover officer's sexual desire as required to support her conviction.
Reversed and rendered a judgment of acquittal.

236 Lewdness
  236k7 Evidence
    236k10 k. Weight and Sufficiency. Most Cited Cases

Evidence was insufficient to establish that defendant intended to arouse or gratify undercover officer's sexual desire by touching his genitals while she performed a private dance for him, as required to support her conviction for public lewdness by sexual contact; officer's uncorroborated testimony was that he was shocked, stunned and alarmed when defendant's thighs and knees touched his genitals and she sat on his lap, and there was no separate evidence of intent to arouse. V.T.C.A., Penal Code § 21.07.
Appeal from the County Court at Law of Ector County, Texas, (TC# 02-1655).
David P. Zavoda, for Trisha Underwood.
Tracey Bright and Dewey D. Britt, for The State of Texas.

Before Panel No. 3 BARAJAS, C.J., LARSEN, and CHEW, JJ.


*1 Trisha Underwood appeals her conviction for public lewdness by sexual contact under Tex. Pen.Code Ann. § 21.07 (Vernon 2003). Among other points of error, she claims the evidence was legally insufficient to prove that she acted with the intent to arouse and gratify the sexual desire of undercover police officer J. Medrano. Agreeing that the evidence is legally insufficient, we reverse and render a judgment of acquittal.

On April 12, 2002, Trisha Underwood was employed as a dancer at Playmates, an adult cabaret in Ector County, Texas. The State charged that on that date, she engaged in lewd conduct by "knowingly engag in an act of sexual contact by touching the genitals of J. Medrano with the intent to arouse and gratify the sexual desire of the J. Medrano in a public place ...." Jordan Medrano of the Odessa Police Department was one of four officers who took part in an undercover operation at Playmates. Medrano testified that he was shocked, stunned, and alarmed when Underwood touched his genital area with her legs.
The operation's supervising officer, Jesse Duarte, testified that over one and a half hours, he and his men consumed alcoholic drinks, bought lap dances, and gave tips to waitresses to create the appearance that they were typical customers. Two other officers also testified, but they, like Duarte, were unable to corroborate Officer Medrano's assertion that Underwood committed the alleged act. Each testified that Medrano and Underwood were within eyeshot, but not in their direct line of sight.
Medrano testified that he consumed three or four beers but they did not impair his professional judgment. At his request, Underwood performed a private dance for him, for which he paid her $20. During the dance, he sat in an upholstered chair, which resembled a "couch seat" with his knees approximately eighteen inches apart. Underwood was required to dance within this eighteen-inch space. Medrano testified that during this private dance, Underwood touched his genital area with her knee and thigh, and again with her buttocks when she sat in his lap. He also testified that she got up on his thighs with her knees; when questioned about having a woman's full weight kneeling on his thighs, he agreed that is was painful, but he withstood it "for doing the operation."
Medrano testified:
Q: And obviously, my client, if she was going to dance for you near you as a private dance, as you called it, had to dance within your legs; is that correct?
A: Yes, sir.
Q: Kind of--you kind of forced that situation, didn't you?
A: No, sir.
Q: And you are saying her leg brushed your genital area?
A: Her legs touched my genital area, sir.
Q: What part of her leg?
A: Her knee and thigh.
Q: Her knee and thigh? And then she somehow--did she turn and show her backside to you during the dance?
A: Yes. She did.
Q: And did she sit down in your lap?
A: She sat down on my genital area, sir.
*2 Q: And is that what you are claiming is the public--is the sexual contact is when her butt touched your genitals by her sitting down?
A: Her legs and butt, yes, sir.
The State presented no other evidence against Underwood proving public lewdness.

No evidence of intent to arouse and gratify
Underwood's Point One urges the evidence was insufficient as a matter of law to prove that she did knowingly engage in an act of sexual contact, specifically that she intended her act to arouse or gratify Medrano's sexual desire. The elements set out in the information accused Underwood of "knowingly engage in an act of sexual contact by touching the genitals of J. Medrano with the intent to arouse and gratify the sexual desire of the J. Medrano in a public place ...." In this reviewing legal sufficiency point, we review all evidence in the light most favorable to the verdict to decide whether a rational trier of fact could have found the elements of the alleged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Davila v. State, 930 S.W.2d 641, 644 (Tex.App.-El Paso 1996, pet. ref'd).
Here the evidence consisted of the uncontroverted, but also uncorroborated, testimony of Officer Medrano. Detective Medrano testified he was "shocked," and "stunned and alarmed" when Underwood's thighs and knees touched his genitals and she sat on his lap. He testified he "withstood the pain" when she balanced her knees on his thighs. None of this indicates arousal or gratification. We conclude Medrano's testimony supplies no direct evidence of arousal or gratification.
Nevertheless, intent to arouse or gratify another's sexual desire may be inferred from defendant's conduct, remarks, and surrounding circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex.Crim.App.1981); Balash v. State, 720 S.W.2d 878, 879 (Tex.App.-Houston 1986, pet. ref'd). Here, we find nothing from which the jury could infer that Underwood's intent was arousal. Point One is sustained.

For these reasons, we reverse Trisha Underwood's conviction and render a judgment of acquittal. We need not reach the remainder of Underwood's claims.
Tex.App.-El Paso,2003.
Underwood v. State
2003 WL 22870865 (Tex.App.-El Paso)

Subject: Re: the L word

Written By: marthadtox3 on 07/18/04 at 6:51 am

another really tricky legal question for his honour ....

52} This dancer did not perform "rides for five." Instead, she filled that time slot by a series of vaginal gymnastics. **218 Some constitute sexual activity. Unlike the other activities described herein, no direct payment was made in exchange for the activities described in the next two paragraphs. However, the *114 announcers strongly encouraged tipping both before and after these acts, and the patrons responded with payments.
{¶ 53} This included expelling golf and ping pong balls across the room from inside her vagina, lighting and smoking cigars with her vagina, blowing puffs of cigar smoke from her vagina, extinguishing multiple flaming safety match books from air blown from her vagina, expelling significant volumes of water from her vagina onto patrons, and blowing folded currency placed on her vagina into the air with gases apparently inhaled and then expelled from her vagina.
{¶ 54}

Although it might be argued in the abstract that shooting water from one's vagina onto a patron is not lewd behavior, sexual contact, or sexual activity, on several occasions, it clearly was. After being doused with a large volume of water in the face at point blank range, several of the patrons spit out significant amounts of the water that had entered their mouths in the process.(!!!!!!!!!!!!!!!!!!!!ed.!!)

{¶ 55} Similarly, although one might argue in the abstract that the lighting and smoking cigars with one's vagina might not be lewd behavior or sexual activity, when the performer sold the cigars after this and the cigars were smoked in her presence, the court concludes that lewd behavior and sexual activity took place. Likewise, it might be argued that propelling ping pong balls and golf balls across the room from inside one's vagina may not be lewd behavior or sexual activity. However, when its announced purpose is for the patrons to catch the balls in their mouths, sexual activity is clearly afoot.

editor's note .. is afoot the approriate metaphor here?????????/

Subject: Re: the L word

Written By: marthadtox3 on 07/22/04 at 3:11 am

Parodies and the law

In this action for copyright infringement, plaintiffs allege that defendants infringed their copyright in the famous song What a Wonderful World ("Wonderful World") by issuing an album containing The Forest, a rap song that uses the first three lines of Wonderful World as its introduction. As defendant Sony Music Entertainment, Inc., ("Sony") has conceded that plaintiffs have established a prima facie case of copyright infringement, Sony's liability turns on whether The Forest's quotation of Wonderful World constitutes fair use, and therefore does not infringe plaintiffs' copyright. Both sides now seek summary judgment on this issue. For the reasons discussed below, plaintiffs' motion will be denied, and defendant's motion will be granted.
Wonderful World and its optimistic take on life and the natural world have proven extremely popular, and it has been frequently recorded, perhaps most famously by Louis Armstrong. Wonderful World's lyrics celebrate nature and the beauty of life, as evidenced by the first verse of the song:
I see trees of green, red roses too
I see them bloom for me and you
And I think to myself, what a wonderful world.
(MacPherson Decl. Ex. A.) Plaintiffs own the copyright to Wonderful World, and have granted hundreds of licenses to record and make derivative works of the song in the past few years alone. (Pls. Mem. at 14.)
Despite the song's popularity, not everybody subscribes to its message of a pastoral world of "skies of blue and clouds of white," where all men are brothers and the sound of "babies cryin" ' is music to one's ears. (MacPherson Decl. Ex. A.) Thus, in 2001, hip-hop artist Dennis Coles, known professionally Ghostface Killah, a former member of the well-known group WuTang Clan, wrote and recorded The Forest for inclusion on an album entitled Bulletproof Wallets. (Id.  2.) The Forest portrays a dark view of the world by imagining popular cartoon characters in a "wonderland," engaged in acts of violence, sex, and theft. A few of the less scatological or obscene lines will give the flavor of the work:
Bugs still sniffin', Daffy Duck snitchin'
And heard that crazy Bird took the stand on the Simpsons
Bet you "my golly, oh glory" with a story to tell
Droopy got knocked, now he Muslim in jail
His name is Abdrool, Colorful, Snow White tattoo....
(Id. Ex. A.) Before beginning its recitation of the evil ends to which even popular cartoon characters can come, The Forest opens with an off-key rendition of the first verse of Wonderful World. While the singers are unaccompanied and the tempo and rhythm are different from the original, the melody of Wonderful World is recognizable. (Id.) Coles also changed the lyrics, inserting slang references to marijuana, where the original describes trees and flowers:
I see buds that are green, red roses too
I see the blunts for me and you
And I say to myself, what a wonderful world.
(Id.) (emphasis added to alterations). The beat and instrumentals that accompany the rest of the song begin on the word "wonderful," and after a pause, the rap part of the song begins, "It's the illest little story for all the girls and boys/ Wonderland you should see it ..." (Id.) For the rest of The Forest' s three-minute duration, it does not repeat the Wonderful World quote, or reference the song in any way.
Bulletproof Wallets was not a hit by hip-hop standards, selling only 240,000 copies, and grossing $3.5 million. (Ross Decl. Ex. 7.) Nonetheless, plaintiffs were apparently not amused by Ghostface Killah's take on Wonderful World, as they sent a notice of infringement to Sony in November 2001. (Ross Decl. Ex. 8.) When the parties were unable to resolve the matter, plaintiffs filed this suit, seeking actual or statutory damages, a permanent injunction against further infringement, destruction of all copies of The Forest, and costs and attorneys' fees. (Compl. (A)-(E).) As the parties have stipulated that plaintiffs have established a prima facie case of copyright infringement (Ross Decl. Ex. 3), the sole unresolved issue with respect to liability is Sony's affirmative defense of fair use

Subject: Re: the L word

Written By: marthadtox3 on 07/22/04 at 3:12 am

Victory for Ghostface Killah

The Purpose and Character of the Use
The first factor considers whether the new work's use of the original transforms it in some way by adding something new or commenting on it. Id. at 578-79, 114 S.Ct. 1164. Parody "has an obvious claim to transformative value," id. at 579, 114 S.Ct. 1164, and thus deciding that the new work is a parody necessarily entails finding that the new work is transformative. In determining whether the new work is a parody of the original, the relevant inquiry is "whether a parodic character may reasonably be perceived." Id. at 582, 114 S.Ct. 1164. Thus, contrary to plaintiffs' argument, the question is not whether Ghostface Killah intended The Forest purely as a parody of Wonderful World (Pls. Mem. at 8 & n. 22), but whether, considered as a whole, The Forest "differs in a way that may reasonably be perceived as commenting, through ridicule, on what a viewer might reasonably think" is the unrealistically uplifting message of Wonderful World. Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 114 (2d Cir.1998). Under this standard, The Forest is clearly a parody of Wonderful World.
The heart of any parody is its evocation of the message or style of the original work in order to alter that message or style in a way that humorously expresses the author's opinion of the original work. See, e.g., Campbell, 510 U.S. at 580, 114 S.Ct. 1164 (defining parody). The primary aim of The Forest is to portray the modern world as corrupted and venal, and it uses Wonderful World to underscore that message, by providing an ironic contrast to the body of the song. While the world of Wonderful World is all flowers and light, the world of The Forest is a "wonderland" that is hardly wonderful. Thus, just as The Forest' s use of cartoon characters pointedly comments on lost innocence and what its author sees as the naivete of mainstream culture, its rendition of Wonderful World just before the beginning of the rap is easily understood as commenting on the innocence reflected in the lyrics of the original, in order to drive home its own message more effectively.
To this end, The Forest' s quotation of Wonderful World is not simply a rote imitation, but makes key changes to the lyrics and to the overall effect of the lines. Where the original first three lines of Wonderful World describe the beauty of nature, its "trees" and "roses" in "bloom," The Forest' s quotation reads more like an invitation to get high with the singer, celebrating the availability of marijuana, with "buds blunts for me and you." (MacPherson Decl. Ex. B.) Where the most famous recording of Wonderful World is lushly orchestrated, with strings playing the melody in a major key, evoking a feeling of peace and harmony, The Forest' s version is recited a cappella, with a single male singer intoning the words off-key, in a tone that might reasonably be perceived as sarcastic. The final line of the quotation, "And I say to myself, what a wonderful world," sounds positively ominous: While in the original, the melody ascends to the phrase "wonderful world," in The Forest, the entire line is intoned on a single note, negating the optimistic, happy feeling created by the original. Although the quotation as a whole is sufficiently recognizable to instantly evoke the original in the listener's mind, the alterations in the lyrics and the music, taken together, present a very different view of the world, and the phrase "wonderful world," in this context, takes on a cynical, ironic meaning. The contrast between the original, recognizable through the alterations, and the drug references and changed harmony, comments on the putative naivete and lack of realism of the original. The juxtaposition is further underscored by the immediate beginning of the rap beat and the description of the "wonderland" of sex, drugs, and prison time that constitutes the remainder of the song. No two worlds could be more different, and the unrelenting seediness of the world portrayed by The Forest may be interpreted as both criticizing and ridiculing the cheerful perspective of Wonderful World. Thus, The Forest' s use of Wonderful World is indisputably intended to parody the message of the original, and would be so perceived by any listener familiar with the song.

Subject: Re: the L word

Written By: marthadtox3 on 07/26/04 at 3:40 am

  An early victory for Mad Magazine

IRVING R. KAUFMAN, Circuit Judge.
Through depression and boom, war and peace, Tin Pan Alley has light-heartedly insisted that 'the whole world laughs' with a laugher, and that 'the best things in life are free.' In an apparent departure from these delightful sentiments, the owners of the copyrights upon some twenty-five popular songs instituted this action against the publishers, employees and distributors of 'Mad Magazine,' alleging that Mad's publication of satiric parody lyrics to plaintiffs' songs infringed the copyrighted originals, despite Mad's failure to reproduce the music of plaintiffs' compositions in any form whatsoever. Twenty-five causes of action were alleged, each representing a particular song copyrighted by the plaintiffs and parodied by the defendants.
  On cross-motions under Rule 56, F.R.Civ.P., the District Court awarded summary judgment to the defendants as to twenty-three of the claims, finding no similarities in mood, content, or purpose between the original lyrics and the parodies; concluding that the two remaining causes of action presented closer questions, the court denied summary relief to both parties as to these two claims. Asserting that the District Court decision constituted an invitation to plagiarism, the plaintiffs appealed.
The validity of plaintiffs' copyrights has never been challenged, and we need concern ourselves here only with the nature, purpose and effect of the alleged infringements. The parodies were published as a 'special bonus' to the Fourth Annual Edition of Mad, whose cover characterized its contents as 'More Trash From Mad-- A Sickening Collection *543 of Humor and Satire From Past Issues,' and almost prophetically carried this admonition for its readers: 'For Solo or Group Participation (Followed by Arrest).' Defendants' efforts were billed as 'a collection of parody lyrics to 57 old standards which reflect the idiotic world we live in today.' Divided into nine categories, ranging from 'Songs of Space & The Atom' to 'Songs of Sports,' they were accompanied by the notation that they were to be 'Sung to' or 'Sung to the tune of' a well-known popular song-- in twenty-five cases, the plaintiffs' copyrighted compositions. So that this musical direction might feasibly be obeyed, the parodies were written in the same meter as the original lyrics.
The District Court observed that the theme and content of the parodies differed markedly from those of the originals. Thus, 'The Last Time I Saw Paris,' originally written as a nostalgic ballad which tenderly recalled pre- war France, became in defendants' hands 'The First Time I Saw Maris,' a caustic commentary upon the tendency of a baseball hero to become a television pitchman, more prone to tempt injury with the razor blade which he advertises than with the hazards of the game which he plays. Similarly, defendants transformed the plaintiffs' 'A Pretty Girl Is Like a Melody,' into 'Louella Schwartz Describes Her Malady'; what was originally a tribute to feminine beauty became a burlesque of a feminine hypochondriac troubled with sleeplessness and a propensity to tell the world of her plight. As might be inferred from the range of categories presented and the foregoing examples of defendants' works, the parodies were as diverse in their targets for satire as they were broad in their humor.

the fear was expressed that the art of parody, which has thrived from the time of Chaucer to, on a somewhat different level, the current vogue for the lyrics of Allen Sherman, would be stifled if its propriety were tested entirely by the precise amount appropriated from the original.
In the present case, it is not necessary to determine whether parody and satire require a greater freedom than that afforded by the 'substantiality' test outlined in Benny. We believe in any event that the parody lyrics involved in this appeal would be permissible under the most rigorous application of the 'substantiality' requirement. The disparities in theme, content and style between the original lyrics and the alleged infringements could hardly be greater. In the vast majority of cases, the rhyme scheme of the parodies bears no relationship whatsoever to that of the originals. While brief phrases of the original lyrics were occasionally injected into the parodies, this practice would seem necessary if the defendants' efforts were to 'recall or conjure up' the originals; the humorous effect achieved when a familiar line is interposed in a totally incongruous setting, traditionally a tool of parodists, scarcely amounts to a 'substantial' taking, if that standard is not to be woodenly applied. Similarly, the fact that defendants' parodies were written in the same meter as plaintiffs' compositions would seem inevitable if the original was to be recognized, but such a justification is not even necessary; we doubt that even so eminent a composer as plaintiff Irving Berlin should be permitted to claim a property interest in iambic pentameter.

Subject: Re: the L word

Written By: meow78223 on 07/26/04 at 9:54 pm

I enjoy reading the thread... just when you think that there cannot be another outrageous law suit, you find it!

Tell me about it. Now the Texas secretary of state's office has sent quite a few letters threatening to sue for copyright infringement. Seems "Don't Mess With Texas" has become a popular slogan, but the secretary of state's office owns the copyright (originally it was a slogan for their anti-litter campaign) and now they want to enforce it. So dealers selling "Don't Mess With Texas" T-shirts, bumper stickers, etc., stand to get sued by the state.

My reaction, as usual, is "Don't Mess With Free Speech".


Subject: Re: the L word

Written By: marthadtox3 on 07/29/04 at 5:02 pm

the trials  and tribulations of the House of Saud

further facts are stated in the judgment of Lord Denning, M.R.


This is an unusual case. The plaintiff, Prince Abdul Rahman Al Sudairy lives in Saudi Arabia. He is a man of great wealth. He entered into negotiations to buy an expensive motor-car in England -- an Aston Martin Lagonda -- for the sum of <<PoundsSterling>>34,000. He negotiated with two men, Abu-Ghosh and Abu-Taha. They were two young men. They came originally from Kuwait. According to their own accounts they have been in England for many years and are permanently resident here. They met when they both went to the Bath Technical College and took their 'A' levels there. Abu-Taha went on to Bristol University. Abu-Ghosh went to London University. They afterwards set up business together in office premises on the 6th Floor, 49 Park Lane, W.1. That is a block of offices which houses several Middle East firms. They carried on business under the name of Sarco Enterprises. We know nothing about that firm except that it is said to be registered in Liechtenstein.
In the course of the negotiations for the Aston Martin Lagonda (for << PoundsSterling>>34,000) Prince Abdul Rahman Al Sudairy drew two cheques, one in favour of Mr. Abu-Ghosh for <<PoundsSterling>>12,000 on Mar. 13, 1978; and the other on Feb. 7, 1979, for <<PoundsSterling>>22,000 in favour of Sarco Enterprises. Both those cheques were paid into Barclays Bank (Park Lane branch).
The deal did not go through. The car was not delivered. On Nov. 25, 1979, Abu-Taha purported to return the money. He drew a cheque for << PoundsSterling>>34,000 in favour of Prince Abdul Rahman Al Sudairy. It was drawn on an account at Barclays Bank (Park Lane branch) under the name of Abu-Taha External Account.
The cheque was not honoured. It was returned marked 'Refer to drawer'. Prince Abdul Rahman Al Sudairy sued for his money. He issued a writ on Feb. 6, 1980, against the two young men. He took out a summons under R.S.C., O. 14. The young men put in affidavits of defence. They denied that they ever agreed to sell the plaintiff an Aston Martin Lagonda motor-car. Abu-Taha said that his cheque for <<PoundsSterling>>34,000 was not a repayment. It was a loan by him to the plaintiff.
Prince Abdul Rahman Al Sudairy, in support of his claim, seeks a Mareva injunction against these two gentlemen. The summons under R.S.C., O. 14 is coming on in about a fortnight: and he is fearful that any money they have will have disappeared by the time he gets judgment. It may be transferred to Kuwait, or somewhere else, and it may be difficult to get hold of it. So he asks for a Mareva injunction.
The matter

Subject: Re: the L word

Written By: marthadtox3 on 08/01/04 at 2:35 am

victory for Victor's little secret.....  part 1

"In Mosely v. V Secret Catalogue, Inc., the Supreme Court of the United States unanimously ruled that unless a plaintiff can prove damage, a trademark dilution case under the Federal Trademark Dilution Act will fail. Mental association of "Victor's Little Secret" with "Victoria's Secret" does not necessarily mean blurring or tarnishing of the plaintiff's trademark or trade name

The factual context for the Court's decision is sexy, literally, involving seductive lingerie and sex toys. Moseley's story started unfolding on February 12, 1998, when an ad for "Victor's Secret" in a weekly publication in Fort Knox, Kentucky, proclaimed: "GRAND OPENING Just in time for Valentine's Day!" The ad was for "Intimate Lingerie," "Adult Novelties/Gifts" and other items.
An Army colonel who read the ad was apparently "offended by what he perceived to be an attempt to use a reputable company's trademark to promote the sale of 'unwholesome, tawdry merchandise."' The colonel wrote a letter to Victoria's Secret, and the company called in its own soldier, its lawyer, who wrote Moseley, telling him that use of the name "Victor's Secret" for a store that sold lingerie was likely both to cause confusion with the "Victoria's Secret" mark and to dilute the mark's distinctiveness. Moseley accommodated the lawyer--to some extent--by changing his store's name to "Victor's Little Secret."
Victoria's Secret was not satisfied, and the resulting law suit made its way to the Supreme Court. The company claimed that the use of "Victor's Little Secret" constituted trademark infringement because it was "likely to cause confusion and/or mistake." The suit also *187 claimed unfair competition because of alleged misrepresentation, and it claimed "federal dilution" violating the FTDA. The dilution count claimed that Victor's Little Secret was "'likely to blur and erode the distinctiveness' and 'tarnish the reputation' of the VICTORIA'S SECRET trademark."

Subject: Re: the L word

Written By: marthadtox3 on 08/01/04 at 2:36 am

Part 2

In a nutshell, the Supreme Court concluded that "actual dilution must be established." The Court also made clear that "'Blurring' is not a necessary consequence of mental association. (Nor, for that matter, is 'tarnishing.')" The Court wrote:
The record in this case establishes that an army officer who saw the advertisement of the opening of a store named "Victor's Secret" did make the mental association with "Victoria's Secret," but it also shows that he did not therefore form any different impression of the store that his wife and daughter had patronized. There is a complete absence of evidence of any lessening of the capacity of the VICTORIA'S SECRET mark to identify and distinguish goods or services sold in Victoria's Secret stores or advertised in its catalogs. The officer was offended by the ad, but it did not change his conception of Victoria's Secret.
The Court reversed and remanded the case.

Subject: Re: the L word

Written By: marthadtox3 on 08/04/04 at 6:47 am

Don't listen to financial advisers whose sources of finance are extra terrestial........

Action Against Prime Bank Scam Investment Fraud Scheme Pertaining to Garry W. Stroud Offering High-Yield Instruments

Excerpt of SEC Complaint which was so artfully written that very little editing was required to make this remarkable tale into an enjoyable read.

On June 28, 2001 the SEC filed this complaint against Garry W. Stroud, of British Columbia, Canada, individually and doing business as Angelic International, Euro Credit and Exchange Bank, Ltd. and Diamond Global Holding Trust, and relief defendant Adele Louros seeking to  put an end to his ongoing fraudulent securities offerings targeted at U.S. residents.
Using the Internet, the U.S. mail and telephone he has managed, since at least mid-1998 through the filing of this Complaint, to receive approximately $1 million dollars of investor funds from over 2,200 investors based on false and truly fantastic claims of extraordinary investment returns.
He has lured his investors with promises of rich rewards in such exotic investment opportunities as gold mines in China and Mexico and the opportunity to participate in bank debentures and "Morgenthau Gold Bond Certificates." These exotic sounding investments are, in every case, pure shams he has used and continues to use to dupe his unsuspecting yet trusting investors.
He has recently taken his audacious conduct to a new level under the guise of his most recent offering, Angelic International. This offering, previously sold as Prelaunch42001, is nothing more than Stroud’s attempt to exploit the misfortunes of another group of investors that were defrauded by Donald Allen English, d/b/a E-Biz
E-Biz involved an Internet ponzi scheme that has ostensibly cost over 22,000 investors approximately $8.8 million. With the assistance and encouragement of English and others, He has solicited former E-Biz members to invest in Angelic International with virtually the same promise as that made by E-Biz: in 22 days, each Angelic International investor is to receive a 100% return on their investment. Stroud has managed to convince over 1,000 investors to invest approximately $300,000 in this offering since April 2001.
To pacify his victims, he claims to "own" a "merchant/commercial bank" known as Euro Credit and Exchange Bank, Ltd. Euro Credit is purportedly a Swiss bank upon which he has been known to write checks drawn against this alleged bank. On fanciful letterhead, and upon at least one check known to the Commission, he lists an address, telephone number and "secured fax" telephone number in Switzerland.
Through a website operated as, he has lulled his victims into believing that he has fully refunded their losses in the E-Biz venture and falsely shows balances in their Euro Credit accounts. Unfortunately, the Swiss addresses and telephone numbers he uses are merely answering services and mail drops. There is no bank in Switzerland, or Canada for that matter, and the "balances" his victims see in their Internet "Euro Credit account" are illusory.
He has not paid a single investor the promised returns in any of his programs. Although he has not paid any of his investors, he has taken control of the Angelic International monies and caused them to become co-mingled with his own. From these co-mingled funds, he has, among other things, apparently caused $50,000 to be transferred to lawyers representing Donald Allen English in the Commission’s case against him.
The Commission, in the interest of protecting the public from any further unscrupulous and illegal activity, brings this action against Garry W. Stroud seeking emergency, preliminary and permanent injunctive relief, disgorgement of all illicit profits and benefits he has received plus accrued prejudgment interest and a civil monetary penalty. The Commission also seeks an asset freeze against Stroud, as well as the appointment of a receiver to take possession of Stroud’s assets, a repatriation order, an accounting, and other incidental relief.
In addition, the Commission seeks disgorgement of the investor monies the relief defendant received from Stroud’s schemes. The Commission seeks a freeze of the relief defendant’s accounts into which investor funds were transferred as well as any asset acquired with such funds, an accounting and other incidental relief.
On January 31, 2001, the staff filed an emergency action in the Western District of Oklahoma against Donald Allen English d/b/a E-Biz and EE-Biz, alleging that the venture was an $8.8 million Internet offering fraud with over 26,000 investors. Shortly after the case was filed, English traveled to Aldergrove, British Columbia to meet with Stroud, a business acquaintance.
At this meeting, English and Stroud, among other things, discussed the creation of a new version of the E-Biz model that could be placed upon a foreign Internet server to continue the same basic type of operation as that implemented by English. Among other things, Stroud agreed to make available for English’s use the money needed to cover the losses incurred by English’s victims.
Upon English’s return from British Columbia, he delivered to English a check drawn upon an alleged Swiss bank named Euro Credit and Exchange Bank, Ltd., in the amount of $9 million dollars, to be deposited into the registry of the Court. English tendered the check for deposit into the Court’s registry, and the Court’s clerk, in turn, deposited the check with its financial institution. The check bounced.
Following the dishonor of the $9 million check, he falsely claimed that he had "withdrawn" the offer of the check because he had concluded that the Securities and Exchange Commission and the Court intended to "steal" approximately $2 million of the funds he had allegedly tendered for the E-Biz investors.
Thereafter, he began to take steps to acquire the names of all of the E-Biz investors by falsely promising that if these individuals would establish accounts with Euro Credit, he would refund their losses directly into their Euro Credit accounts.
In response to skeptical inquiries about his willingness to "refund" over $9 million dollars in investor losses, he responded to potential investors by stating that he was motivated by two primary factors: first, his humanitarian nature caused him to make the funds available, and second, and the real reason behind his ruse, he would obtain a customer base for other offerings he desired to promote to the E-Biz victims. Stroud’s victims are located in virtually every state in the United States as well as the Western District of Oklahoma.
The more the SEC examined Mr. Stroud, the more uncomfortable investigators became. The primary financial asset he listed was a half interest in a purported Peruvian debt, which he said was now an obligation of the American government for more than $1 trillion. The half interest was granted to him by one purported financier who claims to be in radio contact with a 9-foot-6 extraterrestrial circling the earth in a spaceship.

Already, he has informed EE-Biz investors that he deposited money they lost in accounts at Euro Credit. And while the investors can see the money in their name at the Euro Credit Web site, they cannot take any out. To do that, they have to send more money to Mr. Stroud, who says he will then provide a bank card that will allow withdrawals from any A.T.M. On top of that, he is offering the investors an opportunity to participate in yet another program to double their money.

Subject: Re: the L word

Written By: marthadtox3 on 08/08/04 at 3:33 am

elementary my dear Watson.............

"We accepted this appeal for en banc consideration in order to clarify the standards determining sufficiency of the evidence in cases where the primary evidence supporting a defendant's conviction is his presence aboard a vessel containing large quantities of marijuana.
On October 23, 1981, a Coast Guard vessel was patrolling the waters approximately ten miles northwest of Key West, Florida, in search of vessels transporting marijuana, when it spotted a 68-foot long shrimp trawler anchored but not fishing. On closer inspection, the Coast Guardsmen noted that the name "Miss Tia" was displayed on a quarter-inch plywood board tacked to the stern of the boat. The placement of the name in this manner is a Coast Guard violation. The shrimp trawler was flying no flag. On boarding the vessel the Coast Guardsmen found the three appellants, Pedro Cruz-Valdez, Reuben Martin-Gonzalez, and Manuel Fortunado Ariza-Fuentes, and a fourth man who identified himself as the captain but could not produce any documents. The Coast Guardsmen then commenced inspecting the vessel. They found that it was equipped with fishing gear but that the gear was rusted and *1544 could not be used. The winches on each side of the vessel that are used to drop nets in the water were inoperable. Both were rusty and one was severely damaged. The vessel did not appear to be engaged in shrimping. It had no ice, fish or shrimp in the hold. The Coast Guardsmen opened an unlocked hatch and found 220 bales of marijuana in the hold. One bale weighed 43 pounds. All of the appellants were in the one main cabin of the vessel where the living quarters and galley were located. When the marijuana was discovered the persons aboard were arrested and the vessel was taken into port.

56 L.Ed.2d 84 (1978). It has long been the law that in giving effect to such inferences as may reasonably be drawn from the evidence juries properly apply their common knowledge, observations and experience in the affairs of life. Head v. Hargrave, 105 U.S. (15 Otto) 45, 49, 26 L.Ed. 1028 (1881); Chicago, M. & St. P. Ry. Co. v. Moore, 166 F. 663, 666 (8th Cir.1909). Our view of the sufficiency of the evidence on appeal is similarly conditioned. "What everybody knows the court must know...." Jacobson v. Massachusetts, 197 U.S. 11, 30, 25 S.Ct. 358, 363, 49 L.Ed. 643 (1905). Thus we frequently take into account matters of *1547 common sense or general knowledge. That knowledge changes with changing times and conditions. It is an unfortuante fact of modern life that juries and courts know much more about commerce in controlled substances than they did a decade or more ago. We also know without specific evidence matters that frequently have been proved in prior prosecutions. United States v. Garcia-Gonzalez, 702 F.2d 520 (5th Cir.1983). Among these are the existence of normal but deadly hazards implicit in narcotics trafficking, the ever-present risks of robbery or "rip offs," the need for strong arm men or guards to safeguard transactions and the almost ritualistic series of precautionary maneuvers that often characterize large controlled substance transactions. In light of these familiar realities, we think it reasonable for a jury to conclude that in the course of transporting or distributing millions of dollars worth of readily marketable marijuana, through channels that wholly lack the ordinary protections of organized society, a prudent smuggler is not likely to suffer the presence of unaffiliated bystanders

In this manner courts have without evidence accepted as common knowledge: that bookmaking is often carried on over the telephone, Spinelli v. United States, 393 U.S. 410, 418, 89 S.Ct. 584, 590, 21
L.Ed.2d 637 (1969); that large quantities of marijuana are smuggled across the Mexican border daily, Thomas v. United States, 372 F.2d 252, 254 n. 4 (5th Cir.1967); that marijuana smells like marijuana,

Application of these principles in the present case presents no difficulty. Ariza-Fuentes admitted that he had been a crew member and had been on the vessel since it left Colombia ten days before its seizure. The vessel was a flagless shrimp trawler but its equipment was inoperative and it was clearly unfit for use as such. There was a single cabin and an unlatched hold where thousands of pounds of marijuana, worth millions of dollars, were stowed. The totality of the evidence was clearly sufficient to support Ariza-Fuentes' conviction as well as that of the other appellants. *1548 The convictions of all appellants are, therefore,


Subject: Re: the L word

Written By: marthadtox3 on 09/01/04 at 2:22 am

Man versus salamander.............

Barton Springs is a true Austin shrine
A hundred years of swimming sublime.
Now the plaintiffs say swimmers must go
'Cause of "stress" to critters, 50 or so.
They want no cleaning 'cause of these bottom feeders
Saying it's the law from our Congressional leaders.
But really nothing has changed in all these years
Despite federal laws and these plaintiffs' fears.
Both salamander and swimmer enjoy the springs that are cool,
And cleaning is necessary for both species in the pool.
The City is doing its best with full federal support,
So no temporary injunction shall issue from this Court.
Therefore, today, Austin's citizens get away with a rhyme;
But, the truth is, they might not be so lucky the next time.
The Endangered Species Act in its extreme makes no sense.
Only Congress can change it to make this problem past tense

The Barton Springs salamander (the "Salamander") is a particular species of a genus of salamanders that are found in great numbers throughout the state of Texas. The Salamander, however, lives only in Zilker Park in Austin, Texas-- specifically, in certain springs in Barton Creek. The Salamander is a totally aquatic and neotenic amphibian, which means it lives its entire life in water and breathes through gills. It grows to approximately three inches in length and lives in rocks and gravel at the bottom of certain springs. The distinguishing features of the Salamander are that it has smaller eyes, a slightly different musculoskeletal system, and different genetic structures than other more populous species of salamanders in Texas. The presence of the Salamander was first documented in Barton Springs in 1946, and the Salamander was listed officially as a species in 1993 and given the scientific name eurycea sosorum. On May 30, 1997, the Salamander was placed on the Endangered Species list and thereby given the full protection of the ESA. See 62 Fed.Reg. 23,377 (1997).
FN3. "Eurycea " is the name of the genus containing many species of salamanders, and "sosorum " is the specific name for the species of the Barton Springs Salamander. The root of "sosorum " comes from "SOS," the acronym for the Save Our Springs ordinance, a 1992 ordinance passed by the citizens of Austin to protect the aquifer that supports Barton Springs.

The habitat of the Salamander, Zilker Park, is the premier public park owned and operated by the City of Austin. Zilker Park is located within a mile of downtown Austin and contains a nature center, botanical gardens, a hillside theater, hike-and-bike trails, several playgrounds, soccer fields, softball fields, beach volleyball courts, picnic areas, open grassy areas where kite-flying is common, Barton Creek, and Barton Springs Pool. Barton Springs Pool is not an ordinary pool. It is not an artificially bounded, chlorine-sanitized, utility-water-filled, mechanically filtered, swimming pool. Instead, this unique swimming hole was created in the late 1920s when a small dam was built across Barton Creek to hold back the cool, pristine water that flows naturally from the main outlet of the underground Barton Springs. Salamander populations are known to live in Barton Springs Pool and in three other spring outlets: Eliza Springs, Upper Barton Spring, and Sunken Garden Springs.
When FWS listed the Salamander as an endangered species, it stated that "he primary threats to this species are degradation of the quality and quantity of water that feeds Barton Springs due to urban expansion over the Barton Springs watershed. Also of concern is disturbance to the salamander's surface habitat in the pools where it occurs." Id. This lawsuit does not address the "primary *891 threats" to the Salamander, but instead focuses on the concern based on the disturbance to the pools where the Salamander lives.

The City is in the process of applying for a section 10(a)(1)(B), 16 U.S.C. § 1639(a)(1)(B), permit ("Incidental Take Permit") and has been cooperating with FWS longer than the Salamander has even been considered an endangered species. Under the requested Incidental Take Permit, the City would conduct pool cleaning activities in Barton Springs Pool. Namely, the City seeks to lower the water level in the pool, spray high-pressure water in certain areas to clean the pool, drive small motor vehicles called "Bobcats" in the shallow portion of the pool to clean it, and use wire brushes to clean the shallow end of the pool. Of course, the City also intends to allow swimming in the pool under the permit. It is expected that the Incidental Take Permit will make its way through the process and be issued in August or September 1998. The City has been conducting pool cleaning and experimentation under a section 10(a)(1)(A), 16 U.S.C. § 1639(a)(1)(A), permit ("Scientific Permit") issued by FWS. Because of this problem, three or more human individuals monitor the areas from which the water recedes during pool cleaning to search for stranded Salamanders. If a stranded Salamander is found, it is picked up with a leaf or twig and placed in a cup with pool water and then taken to deeper water, where it will be undisturbed during the rest of the cleaning. Salamanders may also be picked up with nets, but they are never touched by human hands, which contain bacteria that have been found tSignificantly, the Court finds the experimental pool cleanings advance the public interest of benefitting the Salamander. Ironically, if the plaintiffs were granted their injunction for the purported purpose of protecting the Salamander, they would not only fail to benefit eurycea sosorum, but they would also frustrate the public interest by causing harm to a different species, homo sapiens.
Pool cleaning is essential to the safety of the pool. If the pool bottom in shallow areas is covered with silt and algae, people could easily slip, fall, and injure themselves. If the shallow end of the pool is dangerous, it could need to be closed, and swimmers would be crowded into the deep end. The buildup of murk and algae in the deep end would make it more difficult for lifeguards to see swimmers who needed assistance. It would be quite a tragedy if a swimmer drowned or was injured because the pool could not be cleaned due to the "stress" caused to Salamanders by moving them during cleaning.
Therefore, it is likely that it would be necessary for the City to close Barton Springs Pool for some or all of the summer months if cleaning were enjoined. This would of course cause a deprivation to the thousands of swimmers who enjoy the cool springs in Austin's warm summers--especially if this summer continues to produce record-setting temperatures as it has thus far. Moreover, the City and its taxpayers would lose a large amount of revenue. The pool produced revenue of over $70,000 in May 1998 and is projected to produce $430,000 in the 1997-98 fiscal year.
o be harmful to the Salamander.


FN6. Of course, the Salamanders are the ones who live in beautiful Barton Springs care free, with millions of dollars and thousands of people scrambling to assist in their stress-free living and procreation. On the other hand, the Congress passed a law that blocked the completion of a $100 million dam and wasted $78 million of taxpayers' money for a 3-inch species of perch. Therefore, it is not clear who has the smaller brains.

Subject: Re: the L word

Written By: marthadtox3 on 09/06/04 at 3:08 pm

Unfair to Rock Stars??????

As an example, one of the Commission's complaints against a broker-dealer and several of its executives accused of facilitating late trading and abusive market timing activities on behalf of 18 institutional clients, including several hedge funds, contains a quote from an internal e-mail. The quote reads:

know the position that they have put us in relative to these fund groups - and they will openly state that their customers will continue to seek places where this type of activity is allowed until the breaking point is hit….

It's not unlike a rock band which knows that they continue to trash hotel rooms on their tours-and as soon as Hyatt throws them out, they'll move on to Hilton, then Marriot, then somebody else. They know it's coming each time, and they'll just keep moving to the next outlet as long as they can continue to play the game …. At the same time is in no hurry to turn off the customers-there's revenue in the tickets and value in having the assets on the books for as long as the gig is on.

Well, the gig is now off. The two executives named in the e-mail, and their firm, are facing SEC fraud charges based on their alleged efforts to facilitate late trading and market timing.

Subject: Re: the L word

Written By: marthadtox3 on 09/21/04 at 2:23 am

A golden oldie

Presidential parsing and other activities........

“Fourth, in his civil deposition, the President denied committing any acts that fell within the specific definition of “ sexual relations” that was in effect for purposes of that deposition. Under that specific deposition sexual relations occurs 

“when the person knowingly engages  in or causes contact with the genitalia, anus, groin, breasts, inner thigh, or buttocks  of any person with an intent to arouse or gratify the sexual desire of “any person.”

Thus the President denied engaging in or causing contact with the breasts genitalia or anus of “any person” with an intent to arouse or gratify the sexual desire of “ any person.”

Concerning oral sex the President’s sole answer to the charge that he lied under oath at the deposition turned on his interpretation of “any person” in the definition.

Ms Lewinsky testified that she performed oral sex on the President on nine occasions.

The President said that by receiving oral sex, he would not “engage in” or “cause” contact with the genitalia, anus, groin, breast, inner thigh, or buttocks of “any person” because

“any person” meant “any other person”.

The President further testified before the grand jury

“if the deponent is the person who has oral sex performed on him, then the contact is not with anything on that list but with the lips of another person .”

The President's lingusitic parsing is unreasonable. Under the interpretation, in an oral sex encounter, one person is engaged in sexual relations, but the other person is not engaged in sexual relations."


Subject: Re: the L word

Written By: philbo on 09/21/04 at 3:30 am

The President's lingusitic parsing is unreasonable. Under the interpretation, in an oral sex encounter, one person is engaged in sexual relations, but the other person is not engaged in sexual relations.&quot;

That must have been a blow...

Subject: Re: the L word

Written By: marthadtox3 on 09/21/04 at 5:22 am


Subject: Re: the L word

Written By: marthadtox3 on 09/28/04 at 3:26 am

Hell hath no fury like a Karaoke performer whose singing has been disparaged... handbags at dawn....

} Defendant, Sharon Monie, appeals from her conviction and sentence for assault.
{ 2} The evidence presented by the State demonstrates that on the night of November 6, 2002, Datasha Stallworth and a friend attended karaoke night at Frank & Jay's, a Trotwood nightclub. Ms. Stallworth and her friend sat at a table occupied by several other women. Nearby was another table occupied by Defendant and her friends. Several of the women at Stallworth's table got into an argument with the women at Defendant's table. That argument escalated into a brawl with ten or more women involved in the fight. Stallworth was not involved in the altercation and got out of the way when the fight broke out.
{ 3} The manager of the bar, Gregory Anderson, broke up the fight and told all of the women to leave. Stallworth attempted to help some of the women collect their purses and belongings from off of the floor. Stallworth was standing close to Mr. Anderson, who was between Stallworth and Defendant. Although Stallworth did nothing to provoke Defendant, when Stallworth bent down to get her jacket, Defendant reached over Anderson and hit Stallworth in the face with a glass. Anderson quickly grabbed Defendant and saw that she was holding the broken stem from the glass in her hand.
{ 4} Stallworth suffered a cut near her left eye that required three stitches at the hospital and left a scar. When Defendant went out into the parking lot after this incident, two or three women, not including Stallworth, attacked her. After Trotwood police officer Mike Richardson arrived on the scene, he determined that Defendant was intoxicated and kept changing her story about what had occurred.
{ 5} Defendant's evidence presents a very different version of the events. According to Defendant, the argument between the two groups of women started when the women at Stallworth's table began calling Defendant's friend names and disparaging her singing. Stallworth threw a chair, and the women at her table attacked Defendant's friend and a brawl broke out. Ten or eleven women were fighting with chairs, fists, and glasses flying. Defendant denied hitting Stallworth with a glass or anything else.
{ 6} After Gregory Anderson broke up the fight and ordered all of the women to leave, he escorted Defendant out of the bar into the parking lot. At that time Anderson incited the women who had been at Stallworth's table to attack Defendant, and several of them did. Anderson also hit Defendant in the face. During the attack in the parking lot Defendant was hit or kicked in the head. When police arrived they initially considered Defendant the victim

Subject: Re: the L word

Written By: marthadtox3 on 09/30/04 at 4:16 pm

The thot plickens....

..Stanley Hilton falls on a hand grenade for America

On June 3 2002, Stanley Hilton, a San Francisco attorney and former aide to Senator Bob Dole, filed a class-action lawsuit in U.S. District Court against George W. Bush and members of his administration, on behalf of 400 9/11 victim family members. The suit alleges that Bush and his administration knowingly allowed the attacks to take place for their own political gain. Hilton has been targetted with death threats, professional threats, and harrassment; his law office was broken into and his professional papers were stolen. After a year underground, he recently broke his silence in a radio interview with Andrew Jones.
Listen to a recording of the interview here.

U.S. Taxpayers, et al Vs. Bush, et al
On August 13, Hilton amended "U.S. Taxpayers, et al Vs. Bush, et al" to narrow the list of plantiffs down to the United States of America (the federal government), Bush, Cheney, Rice, Mueller, Tenet, Rumsfeld, and Ashcroft. Here are the facts of the case as presented in the filing:

This is a taxpayer class action suit against high officials in the current Bush administration, for complicity in aiding and abetting and facilitating the Sep. 11, 2001 attacks as a contrived and stylized "New Pearl Harbor" and for doing so in order to launch unconstitutional aggressive war against the sovereign states of Afghanistan and Iraq, declare political opponents "enemy combatants," suspend the Constitution indefinitely, etc., all for sordid political ends which subvert the very system of laws and Constitution the defendants have sworn to uphold in their offices.

The suit alleges two theories, which are not mutually exclusive:

(1) LIHOP: that defendants Bush et al LET IT (911) HAPPEN ON PURPOSE, i.e., that they had received adequate warning from FBI agents, NSA intercepts, spy satellites and other sources, of imminent air attacks against the WTC by "Al Quaeda" but deliberately chose to look the other way and to allow these attacks to take place; and ...

.(2) that Bush et al actively participated in planning executing and orchestrating the 911 events in order to manufacture a contrived and stylized sensational event aimed at frightening the taxpayers and Congress into passing unconstitutional laws, the PATRIOT ACTS, and in authorizing Bush via resolution to wage an unjustified war of aggression against Iraq. The suit seeks to obtain damages against defendants, an injunction ordering them to reimburse the US treasury for moneys unconstitutionally finagled to prosecute an illegal aggressive war in Iraq, and other damages. Each of the plaintiffs is a victim in some significant way, of the Bush-911 phenomenon and aggressive war and costly perpetual occupation in Iraq.

The suit alleges that Bush, as President, violated the US Constitution by deliberately lying to—and defrauding—the US Congress into passing an "Enabling Act" resolution in October 2002, authorizing Bush to wage aggressive war on Iraq. The war is unconstitutional and an illegal drain on the US taxpayers’ funds in the treasury.

The suit alleges the Iraq war is unconstitutional and that declaratory and injunctive relief should be ordered. It is unconstitutional and illegal because the president violated the Separation of Powers provisions of the Constitution by deliberately lying to the Congress by falsely assuring them that Bush had evidence of weapons of mass destruction (WMD) in Iraq, and that Iraq was involved in plotting and carrying out the 9/11/01 terrorists attacks on the World Trade center and Pentagon–attacks actually orchestrated by defendants.

The suit also alleges that the USA Patriot Acts I and II are unconstitutional and must be struck down as such, because they violate the fourth, fifth, ninth and first amendments to the US Constitution o by permitting the government to spy on Americans and violate their rights to privacy, and because the Patriot Acts, like the war in Iraq, were passed under false and fraudulent circumstances presented by defendants to the Congress

Subject: Re: the L word

Written By: marthadtox3 on 10/04/04 at 1:45 am

Victory for Mrs Popov

This case concerns the continuing problem of the home office deduction. We conclude, on the facts of this case, that a professional musician is entitled to deduct the expenses from the portion of her home used exclusively for musical practice.
Facts and Procedural Background

FN1. The Service does not dispute the Tax Court's factual findings, from which we draw our factual summary.

Katia Popov is a professional violinist who performs regularly with the Los Angeles Chamber Orchestra and the Long Beach Symphony. She also contracts with various studios to record music for the motion picture industry. In 1993, she worked for twenty-four such contractors and recorded in thirty-eight different locations. These recording sessions required that Popov be able to read scores quickly. The musicians did not receive the sheet music in advance of the recording sessions; instead, they were presented with their parts when they arrived at the studio, and recording would begin shortly thereafter. None of Popov's twenty-six employers provided her with a place to practice.
Popov lived with her husband Peter, an attorney, and their four-year-old daughter Irina, in a one-bedroom apartment in Los Angeles, California. The apartment's living room served as Popov's home office. The only furniture in the living room consisted of shelves with recording equipment, a small table, a bureau for storing sheet music, and a chair. Popov used this area to practice the violin and to make recordings, which she used for practice purposes and as demonstration tapes for orchestras. No one slept in the living room, and the Popovs' daughter was not allowed to play there. Popov spent four to five hours a day practicing in the living room.
In their 1993 tax returns, the Popovs claimed a home office deduction for the living room and deducted forty percent of their annual rent and twenty percent of their annual electricity bill. The Internal Revenue Service ("the Service") disallowed *1192 these deductions, and the Popovs filed a petition for redetermination in the Tax Court.
The Tax Court concluded that the Popovs were not entitled to a home office deduction. Although "practicing at home was a very important component to success as a musician," the court found that her living room was not her "principal place of business." In the court's view, her principal places of business were the studios and concert halls where she recorded and performed, because it was her performances in these places that earned her income.
The Popovs filed this timely appeal. We have jurisdiction under 26 U.S.C. § 7482.
FN2. The Popovs also challenge the Tax Court's denial of their deductions for long-distance phone calls, meal expenses, and clothing. We find no merit in these claims. The Popovs did not adequately establish the business purpose of the phone calls or the meal expenses. See Welch v. Helvering, 290 U.S. 111, 115, 54 S.Ct. 8, 78 L.Ed. 212 (1933). The Tax Court did not err in finding that most of Katia Popov's concert attire was adaptable to general usage as ordinary clothing. See Pevsner v. Comm'r, 628 F.2d 467, 469 (5th Cir.1980).

The Internal Revenue Code allows a deduction for a home office that is exclusively used as "the principal place of business for any trade or business of the taxpayer." 26 U.S.C. § 280A(c)(1)(A). The Code does not define the phrase "principal place of business."
A. The Soliman Tests
Our inquiry is governed by Commissioner v. Soliman, 506 U.S. 168, 113 S.Ct. 701, 121 L.Ed.2d 634 (1993), the Supreme Court's most recent treatment of the home office deduction. In Soliman, the taxpayer was an anesthesiologist who spent thirty to thirty-five hours per week with patients at three different hospitals. None of the hospitals provided Soliman with an office, so he used a spare bedroom for contacting patients and surgeons, maintaining billing records and patient logs, preparing for treatments, and reading medical journals.
The Supreme Court denied Soliman a deduction for his home office, holding that the "statute does not allow for a deduction whenever a home office may be characterized as legitimate." Id. at 174, 113 S.Ct. 701. Instead, courts must determine whether the home office is the taxpayer's principal place of business. Although the Court could not "develop an objective formula that yields a clear answer in every case," the Court stressed two primary considerations: "the relative importance of the activities performed at each business location and the time spent at each place." Id. at 174-75, 113 S.Ct. 701. We address each in turn.
1. Relative Importance
The importance of daily practice to Popov's profession cannot be denied. Regular practice is essential to playing a musical instrument at a high level of ability, and it is this level of commitment that distinguishes the professional from the amateur. Without daily practice, Popov would be unable to perform in professional orchestras. She would also be unequipped for the peculiar demands of studio recording: The ability to read and perform scores on sight requires an acute musical intelligence that must be constantly developed and honed. In short, Popov's four to five hours of daily practice lay at the very heart of her career as a professional violinist.
FN3. One who doubts this might consult George Bernard Shaw's famous observation that "hell is full of musical amateurs." George Bernard Shaw, Man and Superman act 3 (1903).

*1193 Of course, the concert halls and recording studios are also important to Popov's profession. Without them, she would have no place in which to perform. Audiences and motion picture companies are unlikely to flock to her one-bedroom apartment. In Soliman, the Supreme Court stated that, although "no one test is determinative in every case," "the point where goods and services are delivered must be given great weight in determining the place where the most important functions are performed." Id. at 175, 113 S.Ct. 701. The Service places great weight on this statement, contending that Popov's performances should be analogized to the "service" of delivering anesthesia that was at issue in Soliman; these "services" are delivered in concert halls and studios, not in her apartment.
We agree with Popov that musical performance is not so easily captured under a "goods and services" rubric. The German poet Heinrich Heine observed that music stands "halfway between thought and phenomenon, between spirit and matter, a sort of nebulous mediator, like and unlike each of the things it mediates--spirit that requires manifestation in time, and matter that can do without space." Heinrich Heine, Letters on the French Stage (1837), quoted in Words about Music: A Treasury of Writings 2 (John Amis & Michael Rose eds., 1989). Or as Harry Ellis Dickson of the Boston Symphony Orchestra explained more concretely:
FN4. Although not, perhaps, without practice space.

A musician's life is different from that of most people. We don't go to an office every day, or to a factory, or to a bank. We go to an empty hall. We don't deal in anything tangible, nor do we produce anything except sounds. We saw away, or blow, or pound for a few hours and then we go home. It is a strange way to make a living!
Harry Ellis Dickson, Gentlemen, More Dolce Please (1969), quoted in Drucker v. Comm'r, 715 F.2d 67, 68-69 (2d Cir.1983).
It is possible, of course, to wrench musical performance into a "delivery of services" framework, but we see little value in such a wooden and unblinking application of the tax laws. Soliman itself recognized that in this area of law "variations are inevitable in case-by-case determinations." 506 U.S. at 175, 113 S.Ct. 701. We believe this to be such a case. We simply do not find the "delivery of services" framework to be helpful in analyzing this particular problem. Taken to extremes, the Service's argument would seem to generate odd results in a variety of other areas as well. We doubt, for example, that an appellate advocate's primary place of business is the podium from which he delivers his oral argument, or that a professor's primary place of business is the classroom, rather than the office in which he prepares his lectures.
We therefore conclude that the "relative importance" test yields no definitive answer in this case, and we accordingly turn to the second prong of the Soliman inquiry.
2. Amount of Time
Under Soliman, "the decisionmaker should ... compare the amount of time spent at home with the time spent at other places where business activities occur." Id. at 177, 113 S.Ct. 701. "This factor assumes particular significance when," as in this case, "comparison of the importance of the functions performed at various places yields no definitive answer to the principal place of business inquiry." Id. *1194 In Soliman, the taxpayer spent significantly more time in the hospitals than he did in his home office. In this case, Popov spent significantly more time practicing the violin at home than she did performing or recording.
FN5. Justices Thomas and Scalia concurred in Soliman, but noted that the Court provided no guidance if the taxpayer "spent 30 to 35 hours at his home office and only 10 hours" at the hospitals. 506 U.S. at 184, 113 S.Ct. 701 (Thomas, J., concurring) "Which factor would take precedence? The importance of the activities undertaken at home ... ? The number of hours spent at each location? I am at a loss, and I am afraid the taxpayer, his attorney, and a lower court would be as well." Id.

FN6. The Service argues that the evidence is unclear as to "how much time Mrs. Popov spent practicing at home as opposed to the time she spent performing outside of the home." It is true that the evidence is not perfectly clear and that the Tax Court made no specific comparative findings. However, the Tax Court found that she practiced four to five hours a day in her apartment. If we read this finding in the light most generous to the Service and assume that she only practiced four hours a day
300 days a year, Popov would still have practiced 1200 hours in a year. She testified that she performed with two orchestras for a total of 120-140 hours. If she spent a similar amount of time recording, she would still be spending about five hours practicing for every hour of performance or recording. The only plausible reading of the evidence is that Popov spent substantially more time practicing than she did performing or recording.

This second factor tips the balance in the Popovs' favor. They are accordingly entitled to a home office deduction for Katia Popov's practice space, because it was exclusively used as her principal place of business.
B. Drucker
The result we reach in this case harmonizes with that of the Second Circuit in Drucker v. Comm'r, 715 F.2d 67 (2d Cir.1983). Drucker involved concert musicians employed by the Metropolitan Opera Association, which did not provide its musicians with practice facilities. Each musician instead devoted a portion of his or her apartment exclusively to musical study and practice, and spent approximately thirty hours a week practicing. Id. at 68. The musicians sought to deduct a portion of the rent and electricity allocable to the practice area. The Service denied the deduction. The Tax Court agreed with the Service, holding that off-premises practice was not a requirement of the musicians' jobs and that the musicians' principal place of business was Lincoln Center.
The Second Circuit reversed. The court first rejected as clearly erroneous the Tax Court's conclusion that practice was not a "requirement or condition of employment." Id. at 69. The court then concluded that the musicians' principal place of business was their home practice studios, finding that this was "the rare situation in which an employee's principal place of business is not that of his employer." Id. Both "in time and in importance, home practice was the 'focal point' of the appellant musicians' employment-related activities." Id. Accordingly, the musicians were entitled to a deduction for home office expenses. The facts in this case are even more compelling. In Drucker, the musicians had only one employer; here Popov worked for twenty-six different employers and recorded in thirty-eight different locations.
We are unpersuaded by the Service's contention that Drucker is no longer good law. The Service has not directed us to any decision that has ever called Drucker into question. The Supreme Court cited Drucker twice in Soliman, but never suggested that it was overruling Drucker 's result. Soliman, 506 U.S. at 171, 172, 113 S.Ct. 701. Although the particular "focal point test" employed by the Second Circuit may no longer be valid, we are unwilling to conclude that the Supreme Court sub silentio overruled a long-standing precedent *1195 of the Second Circuit. "Uniformity of decision among the circuits is vitally important on issues concerning the administration of tax laws. Thus the tax decisions of other circuits should be followed unless they are demonstrably erroneous or there appear cogent reasons for rejecting them." Unger v. Comm'r, 936 F.2d 1316, 1320 (D.C.Cir.1991) (quoting Keasler v. United States, 766 F.2d 1227, 1233 (8th Cir.1985)).
C. Conclusion

Subject: Re: the L word

Written By: marthadtox3 on 10/04/04 at 1:47 am

the  trials  and tribulations of a life in music ctd

In the fall semester of 1999, Byrd enrolled in the basic recording and practicum in recording courses. According to Byrd, no instructor appeared on the first day of classes to teach the courses. Byrd alleges that about five weeks into the semester, Ron Handy, an instructor in the music department, told Byrd that Dr. Lamar asked him to show Byrd "some things in the music recording area." According to Byrd, Handy told him that ASU's music-recording equipment was outdated. Handy showed Byrd ASU's recording studio. According to Byrd, there were boxes all over the floor and most of the equipment in the studio did not work.
Although Handy agreed to bring some equipment from his home to his office to show Byrd "what he knew about music recording," according to Byrd, Handy told him that he did not have the credentials to teach either the basic recording course or the practicum in recording. Byrd alleges that Handy told him that he would show Byrd how to "break down a computer, take the cords off the computer and take the cords off mixer, and show Byrd the sequencing" on his computer. Handy told Byrd that if he could put the computer back together, Handy would give Byrd a passing grade for both courses. Byrd refused to accept Handy's offer.
Byrd alleges that between the 1999 spring semester and the 1999 fall semester, three ASU music professors--Ron Handy, Tony Van Free, and Doug Bristol--told him that the music media program had been discontinued several years before Byrd enrolled at ASU. Those music professors also told Byrd that ASU did not have a qualified music instructor to teach the music media courses.

Subject: Re: the L word

Written By: marthadtox3 on 10/04/04 at 1:49 am

.trials of the musical life  3
.. better use ebay

David C. was the night manager at Paramount Recording Studios, a multi-studio music recording facility in Hollywood. In the early morning of July 15, 1997, someone rang the intercom at the front door. When David opened the door a few inches, defendant Smith pulled the door open, displayed a handgun and walked in. Defendant Matthews, also armed with a handgun, walked in behind Smith. David was ordered into an office and told to kneel on the floor. When Smith asked where the money was kept, David said it was in a padlocked file cabinet. One of the men tied David's hands behind his back and took his keys, his wallet and his watch. More than ten other victims, both employees and clients of the recording studio, were eventually herded into the office, tied up and robbed of their personal possessions. The robbers asked David about surveillance camera videotapes and where certain recording equipment was kept. He heard hammering and could tell the padlock on the file cabinet was being forced open. Eventually, David heard the robbers leave.
On July 26, 1997, Smith and Matthews, along with several companions, perpetrated a nearly identical armed robbery at the Enterprise Recording Studio in Burbank. They once again took personal possessions from both employees and clients, as well as musical and recording equipment belonging to both clients and the studio; the stolen equipment included laptop computers and mixing boards.
Maroen Franse lived in a Hollywood apartment. He put an ad in the newspaper offering to sell an Alesis X2 mixing board. In the latter part of August 1997, Smith came by to look at the equipment and indicated he might be interested. A few days later, he returned with two other people. Smith pointed a revolver at Franse, tied him up, and took the mixing board and three ADAT recorders.

Subject: Re: the L word

Written By: marthadtox2 on 10/11/04 at 11:08 am

oops!  .... see remarks about the Pope near the ned of this one!

I continue to hope that we can maintain confidence in our Regulatory Decisions Committee process and promote efficient, orderly and clean markets without a dramatic increase in the number of cases referred to the tribunal,'' said McCarthy, who took over as chairman of the FSA, exactly a year ago. ``It is in all our interests, not simply the FSA's that this should happen.''

Examination of Witnesses (Questions 40-59)

21 OCTOBER 2003
Mr Callum McCarthy, and Mr John Tiner
Q40 Mr Cousins: How many reports of this you have had in your own tracking of share movements? How many, if I can call them funnies, funnies you have picked up and what enforcement actions have been taken?
Mr McCarthy: There is a number of cases that are in train for enforcement.
Q41 Mr Cousins: How many?
Mr McCarthy: I am not sure if I have an answer I can give you, a single figure that will be helpful in the sense that there is a great range. Some are being referred at the moment to enforcement and no decision has been taken whether to go through with enforcement; some are at early stages; and some are very close to being taken to the Regulatory Decisions Committee to which John referred earlier. If I gave any number, it would be just dealing with a whole population, some very young and some at a very advanced age.
Q42 Mr Cousins: Could you give a number?
Mr McCarthy: I cannot offhand, I am afraid.
Mr Tiner: I think the number that is approaching the advanced stage as you have described it, Callum, is probably around about 13 or 14 cases.
Q43 Mr Cousins: It does not seem a very big number.
Mr Tiner: Those are the cases that we have judged we should take forward. We do receive quite a number of reports of funnies, as you describe them, day in and day out. We look into them thoroughly and then we decide which cases we should be taking to our Regulatory Decisions Committee.
Q44 Mr Cousins: In one case you deal with, that of Paul Davidson, nothing has actually been handed over yet, as I understand it.
Mr Tiner: To?
Q45 Mr Cousins: The fines, the fees, the penalties: they have not been discharged?
Mr Tiner: No. That is one of the cases that is in process.
Q46 Mr Cousins: That is one of the 14?
Mr Tiner: Yes.
Q47 Mr Cousins: This does not seem to be a very impressive record.
Mr McCarthy: To give an indication of the scale of the activity, if you look at the investigations that are going on into the split trusts, we have 60 people working full-time on the investigation of what has actually happened. For good reasons, Parliament has given us—
Chairman: We will come on to that separately.
Q48 Mr Cousins: Mr McCarthy, my question really is about market abuse, not the retail markets but the markets in shares, the markets in deals. That is what concerns me. It does not seem a very impressive record when there are only 14 cases in an advanced stage and one which is relatively well known has not been brought to any kind of conclusion.
Mr McCarthy: We do have to work under severe constraints, which give rise to the individuals and the company having rights which those individuals and companies make use of to the full, and that is inevitably going to take time. That is an unfortunate feature because I believe that justice delayed is often justice denied. We would like to do it quicker but there are genuine problems established by the rules and constraints which are being placed upon us.
Q49 Mr Cousins: Rules and constraints placed upon you by whom?
Mr McCarthy: By Parliament, the Regulatory Decisions Committee, the tribunal appeal and human rights.
Q50 Mr Cousins: Is this a matter you have raised with Government in the review?
Mr McCarthy: We have not yet got to the review. It is undoubtedly a question which will exercise us. We want to do all that we can within the law as it is at the moment.
Q51 Mr Cousins: Do you intend to raise it with Government? If you regard that as being the source of the difficulty in this, it has to be said, relatively poor performance, is this a matter that you now intend to raise with Government in the course of the review?
Mr McCarthy: When we have a review, it is undoubtedly a matter that we will raise with Government. I am much concerned about the speed of enforcement.
Q52 Mr Mudie: Referring to something Mr Cousins said, on page 155 of your Annual Report, it shows that one of your directors has a bad attendance record, attending one out of three meetings. Is that because you have had a word with him and advised him to stay away from board meetings, or is it just bad attendance?
Mr McCarthy: I confess that since this relates to a period when I was not Chairman, I had no conversation with the individual.
Q53 Mr Mudie: Since you have become Chairman, and I accept you have only been in the chair for a month or so, and this is a very important matter, have you had a word with this member of your board asking him to stay away?
Mr McCarthy: I have not encouraged any of our board members to stay away but quite the opposite. I have only chaired one meeting and been a member of the board for one occasion and the only person who was not there was prevented from attending through ill health.
Q54 Mr Mudie: All right, Mr McCarthy: have you had words with that director about his activities or alleged activities elsewhere following on matters of market abuse? Do you have any idea what I am talking about as Chairman of the FSA? Can Mr Tiner help you out? One of your board members is being investigated by the Office of Fair Trading for operating a cartel. Do you not know that?
Mr McCarthy: I am sorry but are you referring to Sir Andrew Large?
Q55 Mr Mudie: Yes.
Mr McCarthy: I am well aware of the question that has been raised about Sir Andrew Large. I think that the position has been explained in relation to the Bank of England where he is Deputy Governor.
Q56 Mr Mudie: I know he is the Deputy Governor. We will see the Governor of the Bank of England in due course, Mr McCarthy, but this person is a member of your board: have you had words with him?
Mr McCarthy: In relation to the OFT investigation, no, I have not.
Q57 Mr Mudie: You are responsible for the integrity of the financial system. You have a board member who has allegedly run part of a cartel on public school fees and you do not regard that as something you should speak to him about as an embarrassment to the board?
Mr McCarthy: I have a board member who is the Deputy Governor of the Bank of England, who is ex-officio a member of the FSA Board as a result of that, and where the complete confidence of the Court of the Bank of England has been expressed in him. I have not pursued the matter with Sir Andrew Large, no.
Q58 Mr Mudie: As long as the Governor of the Bank of England has faith in this fellow, you will allow him to attend your board meetings to discuss matters such as market abuse? This man is allegedly, according to The Sunday Times, involved in plea bargaining with the Office of Fair Trading and you do not regard it as an embarrassment to have him sitting on the board that is responsible for the financial integrity of the City? You do not see that as a matter about which you should have a private word with him to tell him that he should not attend any more board meetings until the matter is cleared up because it may affect your integrity, your credibility?
Mr McCarthy: We have very clear rules about conflict of interest. While somebody is the Deputy Governor of the Bank of England and enjoys the confidence of the Court of the Bank of England, I will undoubtedly take that person as a non-executive member of the FSA board.
Mr Mudie: I thought it was only the Pope who was infallible, but it is the Deputy Governor of the Bank of England too.
Q59 Chairman: I think you have answered fully. Is that all you have to say?
Mr McCarthy: I think that is all I want to say. There is very little else I can say.
Mr Mudie: Earlier it was referred to as a cosy relationship. It cannot get any more cosy than this situation.
Chairman: I do not think there is more to add on that.
Mr Mudie: I do not suppose there is, Chairman. It is the old boy's network.

Subject: Re: the L word

Written By: marthadtox3 on 12/06/04 at 4:15 am

serious skill level  required for pole dancing.......

"Plaintiffs' expert, Dr. Hanna, testified as to the types of dance expression she observed at Christie's (R. at 17-18):

Q. Did each of the performances that you saw, taken as a whole, have serious artistic value?

A. Yes.

Q. In what way?

A. In terms of what art is, art is a learned skill, it is creative imagination, and it is communication, and the dancers all had to have some learned skill.

I mean, you can't even walk in 5-inch heels without some practice, without some practicing and look good and look graceful and even to just go from the floor to standing up tall or to--

I forgot to mention that they have poles, so a lot of women do gymnastics and just even to be able to land on those 5-inch heels, you know, takes a learned skill and then some of them, of course, have a lot and again, it ranges.

In terms of creative imagination, each dancer draws upon her own talents and skills to create a choreography. I mean, there is a lot of improvisation, but they work out certain kinds of moves and the dancers are very creative in terms of kind of costume that they come out in.

One dancer I saw two times, I mean, first time she came out with--I don't know what you call, like strings with colors and twirling them and another time she came out in a very different kind of costume and did a faster routine, so a lot of creative imagination is involved in those routines. "

Subject: Re: the L word

Written By: marthadtox3 on 01/10/05 at 2:38 am

Cautionary tale no 3456

1998 WL 940938 (D.D.C.)
Only the Westlaw citation is currently available.
United States District Court,
District of Columbia.
UNITED STATES of America, Plaintiff,
Harry GINYARD, Defendant.
Crim. No. 98-852M (JMF).
Dec. 9, 1998.


FACCIOLA, United States Magistrate Judge.
*1 This matter comes before me upon the application of the United States that the defendant be detained pending trial. After a hearing, the government's motion was granted, and this memorandum is submitted to comply with the statutory obligation that "the judicial officer shall--include written findings of fact and a written statement of the reasons for the detention." 18 U.S.C. § 3142(i)(1).
1. The defendant is charged with knowingly devising or participating in a scheme or artifice to defraud or to obtain money by false and fraudulent pretenses, representations or promises with the intent to defraud, and in advancing or furthering, or carrying out the scheme, using the mails in violation of Title 18 U.S.C. §§ 1341, 1342.
FN1. The Grand Jury returned a verdict with additional charges on December 8, 1998. I considered this matter on December 7, 1998.

2. The gravamen of the government's case is that the defendant systematically engaged in a pattern of fraudulent conduct with women he met through the Internet. These women entered a "chat room" which was devoted to persons who wish to institute a dominant/submissive relationship with the defendant being the dominator and the woman the person being dominated. He is referred to, for example, as "master" by his "slaves," i.e. the women who communicate with him.
3. Over a period of time, using various techniques and strategems, such as protestations of undying love and of a desire for a monogamous relationship, culminating in marriage, the defendant induced these women to loan or give him money. Unbeknownst to each of the victims, he was making simultaneous protestations of undying love and a desire to marry to the other victims to separate them from their money. In this sense, he ran a kind of "Miss Lonelyhearts" ponzi scheme.
4. He convinced one of his victims that he was in love with her and that they would marry. In the meanwhile, he advised her that if she would permit him to manage her finances he would help her and plan for their future. He explained to her the wisdom of consolidating her credit card debt and transferring that debt to a credit company which charged the lowest possible rate of interest. Credit card companies send their customers convenience checks which the customers may negotiate with the payment being debited against credit card accounts. The defendant told his victim that she should send him her credit card bills unopened. The defendant then wrote the convenience checks to himself as payee and cashed them in an account in a bank in Shreveport, Louisiana. While he told his victim that he was investing the money for their future, the FBI investigation of the account showed that he instead used the money for his own personal expenses. When the dust had settled, his victim was $40,000 in debt. Ultimately, she had to file a bankruptcy petition.
5. The defendant commenced another relationship via the Internet with a dentist in Louisiana. After they had commenced a relationship, he induced her to hire him as her business manager which gave him access to her checking account and American Express Corporate Credit Card. Again, he drew checks on the account to himself and deposited them in the Shreveport account. He "paid" himself $2,000 a month in this way. He also ran up $30,000 in debt on the credit card. While the doctor's ordinary office expenses, such as lab fees went unpaid, the defendant charged bills from sex shops, video stores, florists, and Internet providers. The defendant continued to charge the American Express account and draw checks to himself even after he left Shreveport and returned to the District of Columbia. The depredation of her accounts drove the dentist from her practice, requiring her to seek employment with someone else.
*2 6. The defendant's dealings with his other victims followed the same or a similar dismal and pathetic history. Having lured them into what they thought was a monogamous, exclusive relationship, he either got control of their finances, checks or credit cards or had them loan him money. He would, when necessary, "keep the wolf from the door" by making the minimum payment permitted by the credit card company to keep the account open. As time went by, the ever increasing debt became staggering. When he "borrowed" the money, he made little or no effort to pay it back. Indeed, on one remarkable day, three of his victims confronted him in the presence of cameras from a television tabloid show. He then turned to his current victim, borrowed $10,000 for her to pay some of the debt he owed the other three. He never, however, paid her back the $10,000 nor paid the other three victims what he owed them.
7. Defendant misrepresented to his victims his education, military service, and work experience. He claimed to have business relationships with corporations that did not exist except in his imagination. He was also a lobbyist for a non-existent health reform lobby.
8. At the hearing the government produced documents seized during a search of the defendant's home which indicated that the defendant has used different identities, aliases, social security numbers, and dates of birth to secure identification documents and credit cards. For example, he secured service from an Internet provider under 6 different names. He is "Brett Scott" according to a California driver's license, "Harry Alton Ginyard" according to his passport, and "Brett Scott Ginyard" according to a California identification card. All of these names are in turn different from the names he provided the Internet providers.
9. In the period of August, 1992 through February, 1997, he lived in Louisiana, Washington, D.C. and Truckee, California. He has followed his victims to their home states and resided with them or wherever he could. He is about to be evicted from his apartment in Washington. He is in arrears of $2,000 or more to his landlord.
10. Defendant misrepresented to Magistrate Judge Robinson that he lost his job with a limousine company because of his failing health. An investigation indicated, however, that he was fired after he ran up a $5,000 American Express bill on a company credit card and took one of the limousines with him. The company had to search for him and the car to retrieve it.
11. Defendant has been convicted of failing to appear in court when required.
The fundamental question confronting the judicial officer asked to permit a defendant to be released pending trial is the likelihood of the defendant's being faithful to his promise to appear when required and to comply with the conditions of his release. That determination necessarily involves an assessment of the nature of the crimes charged, the defendant's character, his prior record, and his employment history. The question is necessarily one of character: is the defendant the kind of person who will take seriously an obligation he undertakes to appear when required?
*3 In this case, the nature of the crimes charged casts a particularly searching light on the defendant's character. It would be hard to imagine how one person could cast a more despicable web of lies and false promises to get his hands on other peoples' money. The FBI agent who investigated this case so thoroughly describes his victims as being very similar. In a narcissistic culture in which thin super models are viewed as the epitome of beauty, they have convinced themselves that they are unattractive. Several have now, and have had in the past, symptoms of clinical depression; some have been treated by mental health professionals for this disease. The FBI investigation indicated that the defendant would learn this and similar information about his victims and then exploit it to lure them into what they thought would be loving relationships. Once ensnared in the relationship, defendant fed them a steady diets of outright lies about himself, about what he was doing with their money, and false promises of undying love, marriage and a golden future complete with the repayment of money defendant "borrowed." While one may pity the victims' credulity, one can also say that a person who preys on it is of the lowest character. One wonders if he has any character at all. Since the crimes reeked of deceit, their very nature renders defendant's fidelity to a promise to appear when required unlikely to the point of being inconceivable.
As to other aspects of his character, defendant is in debt to everyone he deals with from the phone company to whom he owes an astonishing $12,000, to his landlord who is evicting him. He was unfaithful to his employer and stole money and property from him. He has lied about the most fundamental facts of his identify and seems to adopt names, dates of birth, and Social Security numbers as convenient. He lied to Magistrate Judge Robinson about the termination of his employment and his one conviction is, not surprisingly, for failing to appear in court when required. He has lied about his past and about his future. One would have to be as naive as a child to trust for a moment any promise he would make that he will return to court when required. To the contrary, I am clearly convinced that the defendant would flee from the fate that awaits him in this Court at the first opportunity and there is no condition that I could set that would reduce that risk to a tolerable level. I therefore must order him detained pending trial.
U.S. v. Ginyard
1998 WL 940938 (D.D.C.)

Subject: Re: the L word

Written By: marthadtox3 on 01/10/05 at 2:40 am

and another.....roles reversed.....

**1 The defendant, Dawn Glassburn-Hoesli, appeals her conviction by a jury of eight counts of theft by deception, eight counts of securities fraud, eight counts of selling unregistered securities, and eight counts of engaging in business as a broker-dealer or agent without registration. The defendant argues the district court abused its discretion in refusing to admit relevant evidence regarding the dominant-submissive relationship, that her convictions are not supported by sufficient evidence, and that the court erred in using a prior felony worthless check conviction in her criminal history.
The facts of this case are bizarre to say the least. The defendant is a 31- year-old, unemployed divorcee with four children ranging in age from 7 to 14. During the events of this case, the defendant's primary income was childsupport paid by her ex-husband. In June 2000, the defendant developed a relationship with John Largent after they met on an internet site dedicated to dominant-submissive sexual practices and lifestyles. Largent is a retired contractor from California who owned a contracting business. After meeting on the internet, the defendant and Largent continued to have contact by telephone and email, and their relationship developed into more and more extreme dominant-submissive expressions. The defendant was the dominant partner and Largent was the submissive partner.
Largent testified that as he was getting to know the defendant, she informed him that she was a savvy businesswoman engaged in multiple business ventures and she was able to produce a yearly profit of 20% to 30%. She told Largent that her ventures included investing in theme parks, developing minority businesses, running an internet telephone service, and serving as a motivational speaker. The defendant told Largent she had 50 employees and a monthly payroll of $50,000.
Largent testified that on September 10, 2000, he sent the defendant $5,000 for her to invest in her businesses, and over the next 5 months he sent her a total of $254,346.98 for her to invest. He testified that he liquidated his entire life savings, including retirement accounts subject to withdrawal penalties, for the defendant to invest in her businesses in order to gain the 20% to 30% return she promised. Largent said that he told her that the investments were for his children and grandchildren. The defendant assured Largent that if he needed the money he could get it back anytime.
The defendant painted an entirely different story for the jury. She described their relationship as completely controlled by the dominant-submissive lifestyle. The defendant testified that all the money Largent sent was a gift and in conformity with instructions that he be completely submissive to his dominant woman. Largent admitted to sending adult sex toys to the defendant. The defendant testified that with the first $5,000 check, Largent included adult sex toys. She produced a letter that was included with the check which stated:
**2 "Dear Loving Mistress, I love you and send all of the enclosed with all of my affection and desire to serve you as my mistress, to be devoted to you for your pleasure. I recognize you as my owner and master. I promise to obey you, to be disciplined by you and suffer for your pleasure and enjoyment. With Love, Very Submissively, Your Slave, John."
The defendant testified their relationship was severely dominant-submissive. Largent sent her expensive gifts daily, including cards, jewelry, sex toys, cameras, flowers, and perfume. The defendant also testified to Largent's desire to be a slave in the dominant-submissive relationship and that he sent her a book on the training and education of a husband that explained severe feminine domination. The defendant said Largent sent her photographs of himself participating in domination activities, in conformity with the pictures in the training book.
The defendant and Largent had three personal visits. Largent came to Salina in October 2000 for a prearranged visit. The defendant testified that in conformity with the book on training your husband, she was late picking up Largent from the airport and they went straight to a hotel where they participated in the dominant-submissive activities. The defendant was allowed to give the jury very explicit details about the encounter.
The defendant testified she used Largent's money for various personal purchases, including day-to-day expenses, purchase of automobiles, remodeling her house, and placing money in investment accounts for her children. Largent testified that after he had no more money to give the defendant, she ended their relationship. The defendant said she ended the relationship because the dominant-submissive activities were getting too extreme and bizarre.
Based on the eight cash transfers by Largent, the State charged the defendant with multiple counts of securities violations and theft. A jury convicted her of eight counts of theft by deception, eight counts of securities fraud, eight counts of selling unregistered securities, and eight counts of engaging in business as a broker-dealer or agent without registration. The district court sentenced the defendant to a presumptive sentence and a controlling term of 26 months' incarceration.

Subject: Re: the L word

Written By: marthadtox3 on 01/10/05 at 2:42 am


The most bizarre evidence was that the "victim" sent the defendant a book on female dominant relationships that specifically suggested that a female in such a relationship must "dispossess your future husband of any of his former property already before marriage" because "a penniless husband fully dependent on his mistress is far easier to train." Having provided this advice to the defendant, it would appear to me that the "victim" then voluntarily cooperated with this "dispossession" scheme, at least in part to demonstrate his eligibility for marriage. It is also interesting to note that the purported investor/victim made no complaint about his failed "investments" until the sexual relationship had been terminated by the defendant. Needless to say, these facts are not typical of a securities transaction.

be careful guys!!!!

Subject: Re: the L word

Written By: marthadtox3 on 01/17/05 at 4:45 am

a letter from the IR (UK IRS)

Dear Mr Addison,
I am writing to you to express our thanks for your more than prompt reply to our
latest communication, and also to answer some of the points you raise. I will
address them, as ever, in order. Firstly, I must take issue with your description of
our last as a "begging letter". It might perhaps more properly be referred to as a
"tax demand". This is how we, at the Inland Revenue have always, for reasons of
accuracy; traditionally referred to such documents.

Secondly, your frustration at our adding to the "endless stream of crapulent whining
and panhandling vomited daily through the letterbox on to the doormat" has been
noted. However, whilst I have naturally not seen the other letters to which you
refer I would cautiously suggest that their being from "pauper councils, Lombardy
pirate banking houses and pissant gas-mongerers" might indicate that your decision
to "file them next to the toilet in case of emergencies" is at best a little
ill-advised. In common with my own organisation, it is unlikely that the senders of
these letters do see you as a "lackwit bumpkin" or, come to that, a "sodding
charity". More likely they see you as a citizen of Great Britain, with a
responsibility to contribute to the upkeep of the nation as a whole.

Which brings me to my next point. Whilst there may be some spirit of truth in your
assertion that the taxes you pay "go to shore up the canker-blighted, toppling folly
that is the Public Services", a moment's rudimentary calculation ought to disabuse
you of the notion that the government in any way expects you to "stump up for the
whole damned party" yourself. The estimates you provide for the Chancellor's
disbursement of the funds levied by taxation, whilst colourful, are, in fairness, a
little off the mark. Less than you seem to imagine is spent on "junkets for
Bunterish lickspittles" and "dancing whores" whilst far more than you have accounted
for is allocated to, for example, "that box-ticking façade of a university system."

A couple of technical points arising from direct queries:
1. The reason we don't simply write "Muggins" on the envelope has to do with the
vagaries of the postal system;
2. You can rest assured that "sucking the very marrows of those with nothing else to
give" has never been considered as a practice because even if the Personal Allowance
didn't render it irrelevant, the sheer medicallogistics involved would make it
financially unviable.

I trust this has helped. In the meantime, whilst I would not in any way wish to
influence your decision one way or the other, I ought to point out that even if you
did choose to "give the whole foul jamboree up and go and live in India" you would
still owe us the money.

Please forward it by Friday.

Yours Sincerely,
H J Lee
Customer Relations

Subject: Re: the L word

Written By: philbo on 01/17/05 at 8:02 am

Did you have to remind me?  :(

Subject: Re: the L word

Written By: marthadtox2 on 01/17/05 at 11:54 am


Subject: Re: the L word

Written By: marthadtox3 on 01/18/05 at 7:02 pm

A likely story......

The charges arose from an incident that began on October 1, 1985, when Richard Johnson, a Snohomish County deputy sheriff, stopped Jeppesen's vehicle in south Everett for expired license tabs. After exiting his marked patrol car, Johnson walked up to Jeppesen's car, informed Jeppesen that he had been stopped because of an expired license tab, and requested Jeppesen's driver's license. Jeppesen replied that he did not have a driver's license and that driver's licenses were unconstitutional, and directed Deputy Johnson to send him the citation by mail. Jeppesen then drove away, proceeding southbound on I-5.
Deputy Johnson and police units from several jurisdictions chased Jeppesen southbound on I-5 through Snohomish County and into King County, unsuccessfully attempting to box Jeppesen's vehicle in with patrol cars. During the course of the chase, Jeppesen fired a series of *234 shots at his pursuers from a revolver and rifle, wounding one officer. Jeppesen was eventually captured following a gun battle near the 65th St. NE overpass in Seattle.
At trial, Jeppesen admitted committing the charged acts, but claimed that he acted in self-defense. Jeppesen explained that he was a member of an ultra-secret organization known as the "Ums," a group dedicated to preventing the antagonistic Rothschild and Rockefeller families from starting World War III. In the week prior to October 1, Jeppesen was repeatedly warned in a series of coded messages that the Russians "were out to nail me" because of his familiarity with a new class of gigantic amphibious troop-carrying Russian submarine as well as his knowledge of particle beam technology. Jeppesen was informed that the Russians most likely would bribe several police officers to kidnap him; the officers would immobilize him with a stun gun and place him on a plane to Russia, where he would then be tortured. Jeppesen asserted that it was not wrong to shoot at the police because he had the right to defend himself.
FN1. Jeppesen's organization does not have a real name. The designation "Ums" arose following an incident in a sporting goods store. After purchasing clay pigeons, Jeppesen overheard two men, who had obviously been observing him, say to one another, " 'Yeah. His name's Jeppesen. He's one of 'em.' So I must be Um, because I'm one of 'em. That's how we became known as the Ums." Report of Proceedings, at 348.

FN2. According to Jeppesen, the Rothschilds, also known as the
"Illuminati," control the United States, Canada, England, Europe, and assorted allies; the Rockefellers control Russia, China, portions of Southeast Asia, and "a fair amount" of South America.

FN3. Jeppesen communicates with other Ums through various means. On some occasions, Jeppesen talks "half-way" in code to an unsuspecting non-Um. Ums located up to 15 miles away are able to eavesdrop on the conversation with parabolic microphones and will respond by projecting laser-guided messages onto buildings located behind the person to whom Jeppesen is talking. On other occasions, Jeppesen will speak in code while driving in his car; the particular code chosen will depend on the color of a laser beam projected by the Ums onto his windshield.

*235 Jeppesen explained that his strategy in fleeing from the Snohomish County officers was two-fold. First, he hoped to reach the relative safety of the Roxbury police station in King County, since the Russians "aren't going to hire the whole police department or pay the whole police department off ..." Report of Proceedings, at 387. In the alternative, Jeppesen fired shots at his pursuers, hoping to force them **1374 to fire back and wound him severely enough to require hospitalization rather than kidnapping. Jeppesen reasoned that the Russian agents would not "get paid for supplying a dead corpse." Report of Proceedings, at 396.

Subject: Re: the L word

Written By: marthadtox3 on 01/21/05 at 10:30 am

For conspiracy buffs.....

Fascinating detail about the original Bohemian Club notoriously conspiratorial...meeting place of the perpetrators of the New World Order etc etc ....from a tax case dated 1929...

"The articles of incorporation of the club state that "it is designed to be, and is, a moral, beneficial association, and that its objects are the promotion of social and intellectual intercourse between journalists and other writers, artists, actors, and musicians (professional and amateur) and others associated by reason of knowledge and appreciation of polite literature, science, and the fine arts; and also the collection and preservation of records, memento, and archives illustrating the progress of literature, science, and art on the Pacific coast, and calculated to perpetuate the memory of those who have been, or shall be, instrumental in promoting such progress." The constitution subsequently adopted states its objects to be for the association of gentlemen connected professionally with literature, art, music, the drama, and also those who by reason of their love or appreciation of these objects may be deemed eligible.

V. The membership of the club is divided into regular, associate, temporary, and transient. The regular membership covers the honorary life, life, and a list of fifty, and all other regular members. The associate covers twenty per cent of the established regular membership, who are chosen with especial reference to their talents and abilities, and who, it may be, are unable to meet the demand of dues and initiation. Temporary and transient memberships are composed of Army and Navy members and faculties of universities. In the regular membership there is a so-called professional list, which is a division of the honorary life, life, or list of fifty. The list of fifty is composed of men who have rendered outstanding service to the club along the lines of its formation. The professional membership is composed of members who earn their living in no other way than the profession of the arts, as shown by plaintiff's by-laws.
Artistic ability, while insuring preferential election, is not a prerequisite to the election of a regular member. The initiation fee of the club is $500 and the dues are $10 per month.

The totals of the various classes of memberships for 1923, 1924, 1925, and 1926 are as follows:

                              Year ending      Year        Year        Year 
                                Sept. 30,      ending      ending      ending 
                                  1923        Sept.      Sept.      Sept. 
                                              30, 1924    30, 1925    30, 1926
Regular members                                                               
List of fifty .......................... 40          38          39          39
War list ................................ 2          1  ----------  ----------
Nonresident members ................... 330        329        334        339
Transient members ..................... 126        124        127        126
Life members ........................... 25          24          25          24
Life members--honorary ................. 20          18          18          14
Honorary ............................... 25          27          27          26
Associate ............................. 184        185        180        188
Regular members--professional .......... 47          61          67          70
  members--nonprofessional ............ 800        800        792        792
Associate members--honorary                          20          22          24
Junior nonprofessional regular members                          57          89
Absentee members                                                              9
    Total membership ............... 1,599      1,627      1,688      1,740

VI. The club building is located at the corner of Post and Taylor Streets in the city of San Francisco. It has a frontage of ninety-seven feet on Taylor Street by a depth of approximately one hundred and sixty-two feet on Post Street. In the basement story of the building is located the dining room, which seats approximately three hundred and fifty persons. Back of the dining room are located the kitchens, storerooms, checking rooms, and a barber shop. On the main floor of the building is located the green room, which is the general lounging room with papers and periodicals on the tables. The walls are covered with examples of painting by artist members of the club and a few wellknown artist paintings purchased by the club. On the same floor is the card room or mah-jongg room, where a few tables are provided for playing cards and mah-jongg. There are no pool or billiard tables in the club. In former years the club had a billiard room. The cartoon room is also located on the same floor and its walls are covered with cartoons of the events in the life of the club and personalities of interest to the membership. It also contains a bar, which served as such prior to prohibition, at an average profit of $1,000 a month. A part of the bar has been cut away for a candy and cigar display stand; also two malted-milk shaking devices. Here is served ginger ale, White Rock, and other nonalcoholic beverages. Here also is an electric stove, sideboard, and counter, where sandwiches are served; a piano and a musical collection of scores of various operas is contained herein.

The red room is on this floor, and its walls are covered with cartoons commemorative of the high jinks or other occasions of he Bohemian Club and is sometimes used in which to serve a small dinner; it is also provided with tables, chairs, and a piano.

The owl room is adjacent to the red room and is used to serve therein an occasional small dinner. The second floor of the club is occupied mostly by the jinks room, which is used for theatrical productions, symphony-orchestra concerts, art exhibits, and general gatherings, and sometimes dinners of the club are served in it. It also contains a pneumatic organ, and the musical instruments of the club's band and symphony orchestra are kept there. On the same floor is the library room, which contains a library of approximately 11,000 volumes.

On the second and third floors of the club are forty bedrooms, some of which are reserved for transient members. Approximately thirty or thirty-five of the unmarried members of the club occupy that number of the forty rooms. No dining room is provided in the building for the wives of members.

A house staff of approximately eighty-six employees is maintained, including a manager, librarian, chefs, bell boys, etc., so that there is complete service that goes with a fully equipped club where members live and spend their time. The value of the clubhouse and ground is approximately $950,000. The photographs of the clubhouse, which are in evidence, show a club of comfortable and commodious character. The clubhouse is well adapted to social entertainments. The club gives periodical dinners. During the years 1918 to 1924 the club's activities list more than 100 dinners and luncheons.

VII. Prior to prohibition the club possessed a wine room. The club's annual report for the year ending March 31, 1918, shows a loan made to the club of $20,000 for increased wine-room supplies.
The club's annual report for the year ending March 31, 1919, shows the average profit for the wine room in ordinary years to have been $1,000 a month. This report further states:

"The outlook under prohibition is far from discouraging. * * * Owing to the great amount of talent embraced in the membership, we are better equipped to weather the reconstruction storm, raised by prohibition, than any other club in the country. Our entertainments can be continued and even increased in number without exhausting the artistic resources of the club."

The club's annual report for the year ending March 31, 1920, contains the following:
"For the past twelve months the shadow of prohibition in an extremely drastic form has rested upon the club. It has influenced our financing; it advanced the date of our grove play. It has influenced the activities of the board of directors, the jinks and grove committees; and although we have now been fully initiated for seventy-five days, we have not been able to draw the horoscope of our future. The tendency of the law as it now stands is unquestionably toward transference of social entertainment from hotel or club circles to the home fireside. Will we be able to preserve the interest in our club functions, dinners, jinks, or grove encampments, which has ever been a distinguishing feature of the Bohemian Club? * * *

Special effort is being made for entertainment at this year's grove encampment. * * * The jinks committee is giving special consideration toward establishment of features which will increase the early evening attendance and practically revive the 'gettogether' spirit which has made the club so popular a place of resort during the pre and after dinner hours. The board therefore earnestly urges the members to keep in mind that the fear and resulting depression has been largely the psychological result of the uncertainty of our future, rather than a conclusion based on specific results of the drastic prohibition enactment; and if all meet the situation with the true Bohemian spirit, there is no reason for doubt as to the continuance of the popularity and prosperity of the club.

"Notwithstanding the feeling of uncertainty above described, the club well maintained its reputation in the number and character of especially Bohemian features presented during the twelve months just ended."
The club reports for the years 1922 to 1926, inclusive, list among the club's activities annual golf tournaments at Del Monte, California, with a large number of members participating.
The 1925-26 report shows that the club championship was won by one Alan MacDonald, and gives the other prize winners.

These reports also show trap-shooting tournaments and aquatic sports listed among the club's activities.
"The Annals of the Bohemian Club" record several games of baseball played by the "Bohemian Club baseball nine."

The house rules of the Bohemian Club provide that, except when required for club purposes, members may have the use of the private dining rooms for the entertainment of guests, provided twelve hours' notice be given to the manager. The house rules further provide: "Members of clubs entitled to reciprocal relations with the Bohemian Club shall have the privilege of the club for a period of three months from the date of presentation of credentials." Further provisions are made for other such reciprocal relations.
The by-laws of the club further provide that on request of a member a card may be issued to a nonresident of the city of San Francisco, living more than a hundred miles therefrom, which shall entitle him to the privileges of the club for a period of two weeks.

The motto of the club is "Weaving spiders come not here."

VIII. The club owns a magnificent virgin redwood grove in Sonoma County within convenient reach of San Francisco, where in midsummer of each year the "grove play" is produced. A natural amphitheater exists in this grove which has been equipped with a stage and which is provided with every facility for out-of-doors theatrical productions. The "grove play" is the high point in the life of the club and is produced in practically all of its phases through the efforts of club members. Occasionally some outside talent assists, but from the writing of the play, the building of the sets, the drilling of the cast, the music, designing of costumes, and acting it is primarily the work of the club. It is produced during the annual encampment, and during that time many other festivities are celebrated. These are all preliminary to the main event--the "grove play." During this time none but members and seventy-five nonresident guests are allowed in the grove. At all other times the grove is open for the use of members, their families, and guests, except that women are excluded after nightfall. Swimming, canoeing, and trap shooting are engaged in, camps are maintained by members, and during the encampment every facility is afforded for the feeding, lodging, and entertainment of those who attend. While much of the entertainment has high artistic merit, other exercises are in the lightest vein, and the whole program is such as to afford those attending a highly enjoyable two weeks.

IX. For several years annual art exhibitions have been held in the clubrooms, displaying the work of its members, in paintings, etchings, and sculpture. Other art exhibitions are also held here. The club is provided with galleries equipped with daylight lamps for these exhibitions. The annual exhibit covers a period of two weeks and as many as 20,000 persons attend, including visitors who come by invitation of members.

X. The club has assisted struggling members who are artists, sculptors, and literary men by waiving their dues and by the purchase of their books, paintings, and sculpture. Exhibitions of artists' works have been held and the pictures in said exhibitions sold to raise a fund for them. "

Subject: Re: the L word

Written By: marthadtox3 on 01/21/05 at 3:22 pm

The Bohemian Grove etc ctd...

This excvruciating extract comes from a law suit in the mid 8os which the Bohemain Club lost .. they wanted to exclude all females from employment at the club(they were of course excluded from membership )


“The Club also contends that its members' privacy interests establish a BFOQ, noting that many shower and bathroom facilities are unenclosed and that members walk about the camp in various states of undress. Claims of a BFOQ based on privacy interests have been upheld if the job actually requires the employee to carry out such intimate duties. ( Fesel v. Masonic Home of Del., Inc. (D.Del. 1978) 447 F.Supp. 1346, affd. (3d Cir. 1979) 591 F.2d 1334.)

(14)Club members' privacy interests, however, need not be threatened because enclosed shower and bathroom facilities are available. If a member chooses not to use the enclosed facilities, no legally enforceable right of privacy is impaired. Thus, in Forts v. Ward (2d Cir. 1980) 621 F.2d 1210, 1217, the court ordered shower screens and sleeping garments for prison inmates, refusing to hold that the inmates' privacy interests encompassed a preference for sleeping nude, when such preference would eliminate equal *23 employment opportunities for male guards. Similarly, Club members' privacy interests do not encompass a legally protectible right to use unenclosed bathroom or shower facilities.

We are obliged to carefully consider as well whether the Club's purposes of promoting male fellowship and appreciation of the arts would be undermined by hiring female employees in selective capacities.

In this respect, it seems highly relevant that, according to the Club's manager, employees are prohibited from fraternizing with the members. It is difficult to understand how, for example, the presence of women cooks or food servers would inhibit realization of the Club's purposes in view of this nonfraternization rule.

Indeed, the existence of that rule renders implausible any assertion that the Club's "intimate" associational rights would be infringed by hiring female employees. Nothing in the present record demonstrates that the members have so "highly personal a relationship" with employees as to warrant protection from state intrusion.
7)The Club nevertheless contends that the mere presence of women on a regular basis "would change the spirit of the organization" and would "destroy the Bohemian feeling."

The eminent author and editor, William F. Buckley, Jr.- himself a Bohemian- testified that the presence of women employees at the Grove "would make so critical a difference as far as I can see that I would certainly forfeit my sense of allegiance to it." Such feelings-however sensitive and genuine -are not afforded constitutional protection, however, for- we repeat-the right to freedom of association only protects "highly personal" relationships ( *14 Roberts v. United States Jaycees, supra., 468 U.S. at p. 618 ), and the Club members' relationship with employees cannot reasonably be termed "intimate" within the letter or spirit of the high court's careful exegesis of that term.

FN6 It may be observed that, as the record here shows, during World War II the Club employed women without apparent damage to its tradition.
The Club argues that the presence of women employees would undermine the essence of its business operation, and that, accordingly, male gender is a valid BFOQ under the FEHA.

The Club cites the following testimony in support of its contention that the presence of women would destroy the essence or character of its operations. In the words of former Governor Edmund G. Brown:

"hat really is important is the spirit of camaraderie, the male camaraderie where men get together and they are free of the element of the battle of the sexes or the competition or distraction of having the other sex present. It is a single-sex gathering, and that is a very special thing."

Yet another member commented: "It is a social experience, the kind that this particular club seeks to provide you, that requires a total affinity of gender. People do behave differently where there are women ..

.. It's an argument that when there are women waitresses, the situation alters. And it would certainly alter in the dining circle or in the auditorium or anywhere *21 else in that camp."

Other testimony, however, indicated that the Club had never received complaints about one of the Club's long-standing female employees, Ms. Lily Lum, who works as a food server during lunch at the City Club. (13a)Two cases cited by appellants, Diaz v. Pan Am. World Airways, Inc. (5th Cir. 1971) 442 F.2d 385, cert. den. (1971) 404 U.S. 950 , and Fernandez v. Wynn Oil Co. (9th Cir. 1981) 653 F.2d 1273, refute the Club's legal contention that customer preference can form the basis of a BFOQ defense.

In the case at bench, the evidence overwhelmingly establishes that club members prefer male employees.

The preference is presumably based upon assumptions concerning the inhibiting effect women employees might have upon men.

These are, however, mere stereotypical assumptions, lacking in any factual basis.

Moreover, because of the nonfraternization policy and lack of selectivity in hiring employees, such male fellowship as might exist between club members and employees is clearly in a legal sense tangential. ( Diaz v. Pan Am. World Airways, Inc., supra., 442 F.2d at pp. 388-389.) *22

The trial court erred in disregarding the principles laid down in Fernandez and Diaz as inapposite for the reason that, in its view, those cases dealt with commercial enterprises. That the Club is a private club does not exempt it from high legal authority which unequivocally declares that employment decisions cannot be predicated upon "stereotyped characterizations of the  sexes.


Subject: Re: the L word

Written By: marthadtox2 on 03/17/05 at 8:43 am

Extracts from an appeal against a conviction for insider dealing and conspiring to commit insider dealing

The present prosecution arose out of a triangulated love affair involving the president of a prominent investment bank, a pornographic film star and a New Jersey businessman.
Until May 1999, McDermott was the president, CEO and Chairman of Keefe Bruyette & Woods ("KBW"), an investment bank headquartered in New York City that specializes in mergers and acquisitions in the banking industry. Around 1996, McDermott began having an extramarital affair with Kathryn Gannon. Gannon was an adult film star and an alleged prostitute who performed using the stage name "Marylin Star." During the course of their affair, McDermott made numerous stock recommendations to Gannon. Unbeknownst to McDermott, Gannon was simultaneously having an affair with Anthony Pomponio and passing these recommendations to him. Although neither Gannon nor Pomponio had extensive training or expertise in securities trading, together they earned around $170,000 in profits during the period relevant to this case.
The government indicted McDermott, Gannon and Pomponio for conspiracy to commit insider trading and for insider trading on the theory that McDermott's recommendations to Gannon were based on non-public, material information. McDermott and Pomponio were tried together, but Gannon was not present.

The Cheating heart Rule

There is no record evidence suggesting that McDermott's agreement with Gannon encompassed a broader scope than the two of them. McDermott and Gannon were having an affair, and it is not obvious that it was or should have been within McDermott's frame of reference that Gannon would share stock information with others similarly situated, or even that there existed others similarly situated. We decline to hold as a matter of law that a cheating heart must foresee a cheating heart. Indeed, the only evidence that McDermott did foresee or should have foreseen Gannon passing information to Pomponio consisted of evidence suggesting that Gannon was a prostitute--evidence that the district court explicitly prohibited. Moreover, the proof at trial established that McDermott had no knowledge of Pomponio's existence.
Accordingly, we hold that, as a matter of law, no rational jury could find McDermott guilty beyond a reasonable doubt of a single conspiracy with Pomponio to commit insider trading

The district court also rejected McDermott's pretrial motion to substitute the word "clientele" with a word or phrase such as

"friends," "acquaintances" or "business acquaintances."


Although the court warned that evidence of Gannon's occupation could be distracting and inflammatory, it did not believe that the word "clientele" necessarily suggested prostitution, because "n actress can have legitimate clients, such as litigators, who need to learn how to act in court or who need voice lessons. So it's not beyond the realm of possibility that there could be legitimate clients."

Even when considered in a light that most minimizes its prejudicial effect, we fail to see how any rational juror presented with repeated testimony that Gannon--a model, dancer and actress with a sexy screen name--had numerous "clients" would not immediately speculate that she worked as a prostitute or paid escort. Similarly, we fail to see how such a juror would not immediately assume that McDermott's and Pomponio's respective relations with Gannon were within the context of that occupation. Although it may not be beyond the realm of possibility that Gannon had legitimate clients, a proper *142 Rule 403 analysis requires a realistic balancing, not an examination of far-reaching possibilities.
Because we find that references to Gannon's "clientele" unfairly prejudiced McDermott by casting an illicit light on his relationship with her by suggesting that her occupation was of a "sleazy" nature, we find that such evidence should not have been admitted and should not be admitted at trial on remand.

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