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BEFORE THE BOARD OF ELECTIONS AND ETHICS DISTRICT OF COLUMBIA RONALD L. DRAKE, et al., Challengers v. CITIZENS COMMITTEE FOR THE D.C. VIDEO LOTTERY TERMINAL INITIATIVE OF 2004, Proponents Administrative Hearing No. 04-020 Re: Challenge to Initiative No. 68 (Civil Penalties) CHALLENGER RONALD L. DRAKE'S RESPONSE TO PROPONENTS' STATEMENTS IN MITIGATIONI. PROCEDURAL STATUSOn August 13, 2004, the Board of Elections and Ethics (BOEE) rejected the Citizens Committee fox the D.C. Video Lottery Terminal Initiative of 2004 (Committee) Initiative No. 68. On September 28, 2004, the D.C. Court of Appeals affirmed the Board's decision. On January 3, 2005, the HOEE ordered the parties to brief the issue of what fines, if any, should be levied against persons involved in this case. On February 14 and 16, 2005, the Committee and its current and former officers filed their statements in Mitigation. On February 23, 2005, the Committee and its current and former officers entered into an agreement with the BORE regarding a related subsequent violation in a continuation of this never-ending saga of fraud. II. TEST FOR MITIGATION
Accordingly, the Committee's statement in mitigation must pass the "trifle apologetic" test. A cursory examination of the Committee's Statement, along with the facts and law presented in this brief, clearly establish chat the Committees Statement fails that test. The Committee asserts that it is not guilty of any wrongdoing. All wrongdoing was done by others. [TR. 7/26/04 p.57]. As in Watergate "mistakes were made," but not by the Committee, or so it seems to say. When caught in wrongdoing, the Committee said: "Prosecute the District residents who signed false circulator affidavits." Prosecute those caught up in the Committee's "whirlwind 6-day campaign." Committee's Statement, at pp.16, 20. Those whom it did not fully pay, those whom it treated with contempt. Now the Committee and its associates just one more time seek to exploit those very people by pointing the Board in the direction of those suffering souls, in hopes the Board will pursue and prosecute them, not the Committee's off-shore controllers. The homeless, the poor, the wheelchair bound, the afflicted, the unemployed, the less knowledgeable, the disturbed, the medicated, the most fragile. There are many words for the committee's position - hubris, greed, heartless, stunning arrogance, to name just a few - but mitigation is not one. III. ISSUEThe issue now before the BORE is whether the Committee has presented any meritorious basis for mitigation. The Committee's Statement is its own answer. It is devoid of meaning or value. It is not probative of mitigation. Notwithstanding the Committee's assertions in its Statement, the facts have been determined. The conclusions of law have been enunciated. Egregious wrongdoing has been found. The Court of Appeals has affirmed. The Committee did not seek rehearing, in bane hearing, or further appeal. Thus, the findings of fact, conclusions of law, and decisions are final. In fact, the Committee's Statement is nothing less that a collateral attack on the final judgment of the BORE and the Court of Appeals. That the Committee may not do in this penalty phase. By arguing that it did not commit wrongdoing the Committee insults the intelligence of this Board and the Court. Such recalcitrance shows that the Committee and its off-shore controllers have not yet learned their lesson on fraud. They by inference suggest that we simply let by-gones be, move on. But more than that the Committee by inference concedes it has nothing to proffer by way of mitigating circumstances on which the Board can premise imposing anything ocher than the maximum penalty. And now the time has come to assess and affix that maximum penalty, calculate the total amount, and determine which persons and entities should be held liable. IV. THE BEGINNINGShawn Scott and Robert Newall approached Manatt LLP in early 2004. Their proposal was for an off-shore controlled monopoly slots operation in D.C. They proposed a minuscule return to the District's coffers in exchange for that monopoly. Manatt LLP reached out to its politically active contacts and created a fiction, the Committee, the alter ego of the off-shore want-to-be slots monopolists. The Committee was the creature and servant of Scott/Newall. The Committee remained under the firm and absolute control of Scott/Newall, effectuated by Manatt LLP. Manatt's role was to run the Committee and the petition drive. Legal advice was, ac best, secondary. V. THE FACTSThe facts are clear and unambiguous. Those facts, taken together, show a rapacious and wanton disdain for the BOEE, the election law, the citizens of this city, and the Districts right to a fair return on gambling. A litany of those incriminating facts is presented in this brief. When examined, they show aggravation, not mitigation_ They cry out for the maximum penalty of $200.00 for each violation, a total of $8.271,800.00. There was a wealth of evidence of serious violations of law which permeated and polluted the Red Roof Inn operation. BOER, p.23 (all BGEE page numbers are those assigned by the Court in its attachment of the ECEE's Clarification Memorandum Opinion to the Court's decision). There was a pervasive pattern of fraud, forgeries, irregularities and other improprieties. BOEE, at pp.26-27. The wrongdoing was not isolated. It was systemic. BOEE, pp.17, 24- The petition drive was managed in such manner and conducted in such a context as to facilitate and encourage those irregularities and improprieties. BOEE, p.27. There was pervasive wrongdoing. BOEE, p-28. The Red Roof Inn operation was fraught with opportunities for abuse of the process, system and laws that would encourage on a systemic basis the kinds of violations that occurred. BOEE, p.22. Circulators participated in altering circulator affidavits and were then unavailable to testify. BOEE, pp.29-30. False signing was an established practice. BOEE, pp.17, 27. The out-of-town circulators "assistants" had a quota of 50 signatures per day. [TR. 7/27/04 p.148]. There was a practice of non-residents circulating petition sheets unaccompanied by a D.C_ resident and then appearing at the Red Roof inn to have those sheets witnessed by any available D.C. resident, BOEE, p.17. There was a plan to secure after-the-fact witnesses. ROEE, p.19. Signing someone else's petition sheets was a common practice. BOEE, p.17. That led to the following testimony;
It was the Committee and its associates who provided no help to the Board in securing the testimony before the Board of the Committee's own circulators. BOEE, p.24. Key player Mike (codenamed Red) Jones was kept unavailable until at least the day the Board was required to issue its decision, [TR. 7-21-04, p.50]; BOEE, pp.24-25. Non-existent addresses or abandoned buildings were used as circulator addresses. BOEE, p.23. The Board was unable to locate 53 of the 102 potential circulator witnesses. BOEE, pp.22-23. Remember the young circulator who said, "I didn't get myself in this mess. Somebody else did." (TR. 7/26/04 p.428]. Or who said: "I don't want to go to jail." [TR. 7/23/04 p.121]. The fraudulent practice of producing false affidavits that compromised the petition circulation process was not an isolated occurrence. BOEE, p.19. It was a well-known common practice engaged in by non-residents, assisted by D.C. residents, and accomplished with the knowledge, direction, and active participation of the Committee's agent Stars and Stripes. BOEE, p.20. Stars and Stripes owner Carl Towe considered the circulator's affidavit at the bottom of each petition sheet just a legal technicality. [TR. 7/26/04 pp.69-70]. Circulator affidavits were altered. BOEE, p. 20. Printed names were crossed out. BOEE, pp.20-21. Other signatures or names were substituted. BOEE, pp.20-21. Some of the original signatures were blackened out in such a way as to conceal those signatures. BOEE, p.21, fnte. 11. There were forgeries. BOEE, p.22. The Committee had knowledge of this practice. BOEE, p.20. Committee agent John Michael conceded that the non-residents were de facto circulators. [TR., 7-27-04, pp.293-295]. It was the Committee through its agents chat brought in out-of-state professional circulators who gathered signatures and then sought to pass themselves off as assistants to this city's homeless people. [TR. 7/26/04, p. 49]. Further, the Committee's out-of-town professional circulators could care less about the merits of the initiative. For all they cared the initiative could be to "give monkeys the right to vote." [TR. 7/28/04 pp.372-373]. One person was pulled from an unemployment line with the lure that she could make $5000.00 in one week. [TR. 7/22/04, p.1371. The Committee recruited a wheelchair bound person of questionable alertness, who was on oxycontin, oxycardane, neuronton, percoset, aquifin, fosomex, ambien, and neurotripoline. [TR. 7/22/04 p.3451. The Committee trained circulators to "manipulate people into signing." The Committee's own Ross Williams just kind of chuckled when he spoke about the possibility of jail. When asked what agriculture had to do with Initiative 68, he said "agriculture can be anything, you know, food." [TR. 7/22/04 pp. 67-70, 1.1.5] . The Committee attacked Andre Jeffries because he "did it for the money." [TR. 7J28/04, p. 81]. It was the Committee's Ross Williams who
Six circulators had to take the Fifth Amendment. BOEE, p.16, fnte. 4. It was and is the Committee that says punish, punish, punish those very same circulators that the Committee induced into perjury, Just let the Committee have the fruits of the fraud. [TR. 8/2/04, pp.253, 266-267]. The Committee failed to adduce any evidence to refute Challengers dispositive claims of pervasive wrongdoing at the Red Roof Inn. BOEE, p.25, Rather, there was a deafening silence from the Committee. BOEE, p.23. The Committee's assertion in its closing argument (repeated in its Statement in Mitigation, pp.14-15) that the incidents of fraud or forgery were isolated, not representative examples, was totally unsupported by any evidence. BOEE, p.25. Further, the Committee went to great lengths to impress the Board about its purging and quality assurance processes. It was later revealed that those processes were used, not to promote the integrity of the electoral process, but to determine validity rates for purposes of paying (or not paying) circulators. BOEE, p. 22, fnte.14. At the same time the Committee submitted all of those fraudulent signatures to the Board without disclosing the existence or identity of the invalid signatures. Id. The Committee was instructed by its off-shore financier and controller Robert Newell (whose alter ego was the Committee) that "we're turning in all these petitions". [TR. 7/27/04, p.419]. At that time the Committee had already identified at least 30000 invalid signatures. [TR, 7/26/04, p.63]. The Committee made no disclosure of that invalidity to the Hoard. [TR.7/23/04, pp.403404, 427]. Remember this Board's own Ms. Alice Miller, whose staff was inundated by the Committee with invalid signatures. She asked Mr. J. Clinton Hyatt if the PCI had some special procedure that she might utilize to expedite the Board's own validation process. [TR. 7/23/04, approx. p.555]. Did the Committee offer help? No. VI. APPLICABLE LAW1. THE APP'LICABLE STATUTE SUPPORTS IMPOSITION OF A MAXIMUM PENALTYAuthority far assessing civil penalties is found in D.C. Code, Sec. 1-1103.05(b}(3). That statute authorizes a civil penalty of up to $200.00 for each violation. The civil penalty may be levied against any person found to have violated any provision of the Election Code. Id. 2. CASE LAW SUPPORTS IMPOSITION OF A-MAXIMUM PENALTYWhat about the applicable case law? The Committee's brief is bereft there too. But there is a plethora of case law for the Committee and its off-shore controllers to have seen, read and cited. To the extent that a citizen's right to vote is debased, he is that much less a citizen. It is a fundamental political right because it is preservative of all rights. Commonness v. Board of Elections for the District of Columbia, 324 A.2d 187, 191 (D.C.App. 1974), The District has a legitimate interest in preventing election fraud. Orange v.-Board of Elections and Ethics, 629 A.2d 575, 579 (D,C.App. 1993). The Board has wide discretion when implementing legislation pursuant to statute. Mitchell v. District of Columbia, 741 A.2d 1049, 1055 (D.C.App. 1999). The very purpose of election statutes and regulations is to regulate the petition process so as to deter fraud and diminish corruption. Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 204-205, 119 S.Ct. 636 (1999). Preserving the integrity of the electoral process, preventing corruption, and sustaining the active, alert responsibility of the individual citizen in a democracy for the wise conduct of government are interests of the highest importance. preservation of the individual citizens confidence in government is equally important. First National Bank of Boston v. Bellotti, 435 U.S. 765, 788-789 (1978). The state has every right to uphold the integrity of the electoral process itself. Brown v. Hartlage, 456 U.S. 45, 52 (1982) The intentional use of invalid signatures constitutes a fraud on the entire democratic process. It warrants the strongest possible condemnation. Board of Elections v. Democratic Central Committee, 300 A.2d 725, 727 (D.C-App. 1973). State reporters throughout the country are replete with case law condemning circulator fraud. Brousseau v. Fitzgerald, 675 P.2d 713, 715-716 (Ariz. 1984). The controlling law in this jurisdiction is Williams v. District of Columbia, Board of Elections and Ethics, 804 A.2d 316 (D.C.App. 2002). 3. THE WILLIAMS PETITION FRAUD CASETwo years ago, in yet another petition scandal, the BORE found 5533 violations. The BOER then imposed a civil penalty of approximately $50.00 per violation. The BOBS suspended $27,700.00 of that civil penalty on condition that the Williams Committee train persons in the law of petition circulation. See, In The Matter of Mayor Anthony, Williams, Candidate, Administrative Hearing No. 02-019, August 15, 2002, page 11. In that case the BOEE found an obvious lack of institutional control and supervision by senior Williams campaign officials. Id., at p. 9. The BOEE found "the absence of supervision constitutes gross neglect by the candidate." Id. The BOEE then issued the following warning to potential future lawbreakers:
Did the Committee and its off-shore controllers think the Williams warning applied only to fraudulent nominating petitions, but did not apply to fraudulent initiative petitions? Surely even the Committee would not make such assertion. On appeal of the underlying case, the Court of Appeals rejected the argument that the possibility of criminal penalties precluded rejection of invalid petitions. Williams, supra, at pp.320-321. So much for the Committee's assertion that it has suffered enough. The Court found that
So much for the Carl Towe contention that the circulator's affidavit at the bottom of each petition sheet is simply a legal technicality. [TR. 7/26/04, pp. 69-701 The Court went on to endorse strong sanctions for fraudulent circulator affidavits. Id. The Court rejected the contention that the candidate was unaware that the Board was considering and would resolve allegations of fraud in the nominating process. Id, at p.322. So much for the Committee's assertion that there was "considerable uncertainty about the precise scope of the permissible role that non-residents could play." Statement, at p.18. 4. CASE LAW SHOWS THAT THE COMMITTEE WAS AND IS THE ALTER-EGO OF SHAWN SCOTT, ROBERT NEWALL AND THEIR ASSOCIATED ENTITIES
To determine whether two nominally distinct unincorporated businesses are alter egos, the Court evaluates the similarities between the two enterprises in their ownership, management, business purpose, operations, equipment and customers. Flynn v. R.C. Tile, 333 F.3d 953, 958 (D.C.Cir. 2004). No single factor is controlling, and all need not be present to support a finding of alter ego status. The Court also looks at any transactions or other dealings between the two entities, including asset transfer between the two entities in non-arms length transactions, as well as those that are merely a sham to disguise the facts. Id., at p.959. Where an entity is controlled by another to the extent that it has independent existence in form only and is used as a subterfuge to defeat public convenience, to justify wrong, or to perpetrate a fraud, the alter ego doctrine applies. Flynn v. Ohio Building Restoration, Inc., 317 F.S.2d 22, 30 (D.D.C. 2004). In corporate law, the Court applies a two-prong test to determine whether to pierce the corporate veil. The first prong is whether there is such a unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist. The second prong is whether, if the acts are treated as those of the corporation alone, an inequitable result will follow, Flynn v. Thibodeaux Masonry, Inc., 311 F.S.2d 30, 41 (D.S.C. 2004). VII. ARGUMENTThis is now the second time in as many years that petition fraud has rocked this city. Its time that it ended. To that end the imposition of maximum civil penalties is necessary. 1. THE COMMITTEE'S REQUEST THAT THE BOEE INVESTIGATE THE CHALLENGERS CHILLS POLITICAL DISCOURSEThis is the same Committee that rather than assisting the BOEE by making circulators available, said: "when you look at all this, you get the impression that you're in the Soviet Union." [TR. 8/2/04, p.2581]. But the Soviet is no more. The Wall came down. This is the same Committee that also demanded that the BOEE investigate the Challengers. [TR. 8/2/04, p.258]. This is the same Committee who was cold by Judge Newman, leave these people alone." The Committee's charge and demand for investigation add nothing to the discussion. They chill political discourse. They intimidate, as though threats and actual physical attacks were not enough. Don't for a moment forget what happened to this Challenger as he prepared his case by investigating the Committee's wrongdoing, in public, in front of the Red Roof Inn. This was just one more message from the off-shore controllers saying: "how dare you challenge us." If allowed to stand, these charges will chill others of faint heart who might wish to speak in the political arena against slots. When the off-shore controllers return again with their slots monopoly initiative, as they surely will, who will dare stand against them, or engage them in political debate, it those District residents fear similar charges or physical attacks will be hurled or unleashed on them. The Committees charge and request was McCarthyism at its rankest. It shows that the Committee and its off-shore controllers are unrepentant and without remorse. It is reminiscent of another time and another era. It had no place then. It has no place now. It is not mitigative or even a trifle apologetic. 2. THE HYATT MEMO WAS A PART OF THE COVER-UPThe Committee has the audacity to cite in mitigation the J. Clinton Hyatt memo. Statement, pp.20-211. But that is the same J. Clinton Hyatt memo that was placed strategically to be fortuitously found by the BOEE. That is the same Hyatt memo later repudiated by Angelo Paparella in these words: "Clint -- it's a dumb memo." TR.7/28/04, p.3501. Mitigation, or aggravation? According to Mr. Paparella, just plain dumb. 3. THE COMMITTEE'S ASSERTED UNCERTAINTY ABOUT THE LAW IS UNCONVINCINGThe Committee states that during the campaign there considerable uncertainty about the precise scope of the permissible role that non-residents could play. Statement, p.18. Were the non-residents uncertain about the Districts law on fraud, false affidavits, suborning of perjury, false swearing, false signing? If so, what on earth were they doing here tampering with our electoral process? And the Committee proposes criminal prosecution of District residents? Statement, pp-19-20. 4. THE COMMITTEE CONSTRUCTED PERJURY TRAPS FOR THE UNWARYWho was it but the Committee through its agents who enticed D.C. residents into the web of fraud and deceit? Bur more than that, the Committee constructed perjury traps for unsuspecting circulators. The Committee's self-designed witness and circulator affidavits were nothing less than the Committee's coldly calculated steel traps that, when sprung, were strategically created to bind the D.C. circulators ever more tightly to the Committee through perjury. Through them the Committee could demand and extract silence from those hapless D.C. resident circulators. Those local circulators risked exposure of their own criminal wrongdoing if they talked. How clever. Once ensnared in those perjury traps the local circulators' very freedom from jail rested in the hands of the Committee, in the hands of the likes of Carl Towe, Mike (Code-name Red) Jones, and Ross Williams. This is the same Ross Williams that "people was ready to kill because he would sit there and smile in their face and get them what he wanted them to get, and send them on their way." [TR. 7/25/04, p.325]. Never forget, it was the Committee in final argument and in its Statement here that says "punish punish punish others - just let us have the tainted fruit from that poisoned tree. Punish them - don't punish us-" [TR. 8/2/04, pp. 253, 265-267]. How Orwellian. 5. THE COMMITTEE DID NOT PROTECT ITS CIRCULATORS FROM SELF-INCRIMINATIONWas the Committee zealous in protecting those who required protection against self-incrimination? Those persons who later had to be immunized so they could tell their story? No. Did the Committee retain counsel for those persons? No. It was this Board and this Board's General Counsel, who, upon being notified by this Challenger that many circulators had serious self-incrimination problems, were zealous in protecting those Fifth Amendment rights, including, where necessary, ordering admissions inadvertently made stricken from the record. Did the Committee even one time move to strike those inadvertent admissions from the record? No. What if anything did the Committee do to protect the rights of the very same people they had ensnared in their own web of fraud and deceit? Answer, nothing. Did the Committee ever speak up to warn their guileless and trusting District circulators that they were about to walk into self-incrimination? No. It was the Board and Board Counsel. It was this Challenger, not the Committee, who stated:
6. THE COMMITTEE HAD RECKLESS DISREGARD FOR THE FRAUD PERPETRATED ON ITS BEHALF The Committee knew or had reason to know that fraud was being perpetrated systemically and pervasively throughout the Red Roof Inn operation. However, when questioned about this matter, the committee chairman Pedro Alfonso expressed the committee's disregard and disdain for District election law. He stated:
In response to questions about petition circulators finding it necessary to plead the Fifth Amendment to avoid selfincrimination, the Committee's Chairman Alfonso expressed a similar cavalier attitude toward the Board in yet another statement. He responded:
In response to an inquiry about the troubled history of Initiative 68's financiers, the Committee's Chairman Alfonso feigned ignorance, as follows;
And so he was shocked - shocked. 7. THE COMMITTEE'S DEBT TO BOEE, THE COURT AND THE CHALLENGERSThe Committee states that "[o]nly after hearing the witnesses did the potential scope and magnitude of the problem become evident." Statement, p.23. The statement is nonsensical. Based an that representation, one can infer that the Committee and its off-shore controllers must be extremely grateful to the Challengers for bringing forth witnesses to elucidate the fraud. In like manner they must also be grateful to this BORE for stopping the fraud and the Court of Appeals for affirming that fraud has no place in our elections. 8. THE COMMITTEE'S SELF-PROCLAIMED QUALITY CONTROL WAS A MYTHThe Committee states that it could not practically check all the 56000 signatures collected by the July 6 deadline. Statement, p.21. At the same time the committee tells the Board that the Committee had a PCI staff of 25 in California working double shifts to run daily validity checks on petition sheets turned in the night before. Statement, p.9. Well, did they, or didn't they? We now know the validity checks were all about money, not purging invalid names before turn-in. BOEE, p.22, ftnte.14 The Committee claims to have turned in a batch of suspect petitions to the Board. Statement, p.20. We have heard that statement before. In fact it was just a minuscule number of sheets turned in under what could only be described as peculiar circumstances. [TR. 7-23-04, approx. pp. 447-451; TR, 7-26-04, pp-154-157] 9. THE GLIMMER OF GOLD IN THOSE SLOTS BLINDED THE COMMITTEEThe Committee states that litigation delay left just six days to circulate the petitions. Statement, p.4, 17-18- In fact it was the Committee's own ineptitude in drafting and submitting the initiative in the initial stages that caused months of delay. It was the Committee that set the self-imposed six days deadline for the petition drive. [TR.7/28/04, p.290]. Financial self-interest was ever-present in every crevice of this petition drive. Circulators had a quota of 50 signatures per day that had to be met. otherwise, they would suffer a financial penalty. [TR.7/27/04, p.148]. The Committee agents and circulators were to receive a qualifying bonus upon certification of the initiative. [TR. 7-28-04, p.317]. This substantial financial self-interest placed the Committee agents credibility at issue. Inducements to fraud were ever present. Disincentives to fraud seemed not to exist. As if those inducements were not enough, look at the Committee and its controllers financial self-interest. Mr. Jeffries did it for a pittance. The Committee and its off-shore controllers did it for the mountain of gold they glimpsed glimmering and shimmering from those slots, if they could but pull off their fraud. Given that enticement, is it any wonder that they attempted to move mountains to get on the November 2004 ballot, rather than wait for 2006? They saw two years worth of gold slipping away if they had to wait for 2006. And so, the enticement to fraud to get to all that gold. 10. THE COMMITTEE'S ORPHAN STATUS BY ITS OWN HANDThe Committee now urges that its own fraudulent conduct has seriously damaged the prospects of slots in the District. Thus, according co the Committee, its own fraud has been its own punishment, and enough. Statement, p.17. And they are now orphans by their own hand pleading for mercy because they are orphans? Were it not for the seriousness of this proceeding, the Committee's self-pity would be laughable. 11. THE COMMITTEE'S MOST RECENT ENCOUNTER WITH BOEEAs already noted, on February 23, 2005, the Committee and its current and former officers entered into an agreement with the BOEE. That agreement dealt with the supplemental submission of petitions in a continuation of the drive to place initiative 68 on the ballot. See, IN RE: December 28, 2004 Submission of Supplemental Petition Sheets, BOEE NO. 05-01. Under the terms of that agreement the Committee and its officers undertook to pay a $100,000.00 civil penalty for the Committees unlawful continuation of the drive to place Initiative 68 on the ballot. Committee counsel informed the BORE in open session that the funds had been wired to his firm's trust account. Who paid the civil penalty? What is the source and origin of those funds? If those funds originated from Scott/Newall, or their affiliates, why did they pay? Why did no local past or present Committee officer pay anything? In reliance on Fed.R.Evid., Rule 201, this Challenger requests the Board take judicial (administrative) notice of the existence of the settlement and the facts surrounding the settlement not reasonably in dispute that are generally known within the District of Columbia. Further, in reliance on Fed.R.Evid., Rule 404(b), this Challenger requests the Board to admit the foregoing settlement agreement, as well as all filings with the office of Campaign Finance, for the purpose of proving the off-shore controllers motive, opportunity, intent, preparation and plan. Further, in reliance on Rule 405, this Challenger requests the Board to admit evidence about the supplemental petition drive and filing, and the settlement agreement, to prove the routine practice of the off-shore controllers, and to prove that their conduct in this matter was in conformity with that routine practice. Further, in reliance on Fed.R.Evid., Rule 407, for the purpose of showing the off-shore financiers' control of the Committee, this Challenger requests the Board to receive in evidence the settlement agreement, testimony about the events that led up to and surrounded the settlement agreement, and testimony about the remedial steps taken during that supplemental petition drive. Further, in reliance on Fed.R.Evid., Rule 301, this Challenger requests the BOEE to determine the existence of certain presumptions and shift to the Committee the burden of going forward with evidence to rebut or meet the following presumptions:
VIII. RECOMMENDED AMOUNT OF' CIVIL PENALTY AND APPORTIONMENT "[W]e're turning in all these petitions". [TR. 7/27/04 p.419] That statement, standing alone, is dispositive. The off-shore controllers were in total control. They were the sole financiers. They are ultimately responsible. The Committee's alter ego status places the burden squarely on them. Accordingly, this Challenger urges the BOEE to assess the maximum civil penalty, as follows;
The civil penalty should be joint and several. It should be assessed against Shawn Scott, Robert Newall, their off-shore associate(s), the Committee, Committee officers, and Manatt LLP. As to the Committee's three original officers and Manatt LLP, their exposure should be limited to the total amount of money they received for their participation in this fraudulent petition drive. The foregoing limitation, however, should be conditioned on their request for and receipt of immunity from prosecution, and their disclosure of all facts known to them that could lead to the indictment, trial and conviction of Shawn Scott., Robert Newall and their affiliates for any crimes committed during the course of this matter. Thereafter, the BOEE should agree that, upon a showing of financial hardship, the BOEE will not pursue recovery from the three original officers. Respectfully submitted; CERTIFICATE OF SERVICEI hereby certify that I served a copy of the foregoing CHALLENGER RONALD L. DRAKE'S RESPONSE TO PROPONENTS' STATEMENTS IN MITIGATION on the Board of Election and Ethics and on opposing counsel by fax and by U.S. Mail, First Class, postage prepaid, and on co-challengers by U.S. Mail, First Class, postage prepaid, this February 28, 2005, postage prepaid, addressed as follows: Mr. Kenneth McGhie, Esquire Mr. Francis D. Carter, Esquire Mr. George W. Jones, Jr., Esquire Ms. Dorothy A. Brizill Ms. Regina James Rev. Dean L. Snyder |
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