writer's conviction reversed by Ninth Circuit Court
Rick Rizzolo “raises the specter of the
debtor’s prison this country
long ago outlawed.”
Rizzolo's appeal scheduled
for March 19
INSIDE VEGAS by Steve Miller
February 20, 2012
In 2009, convicted
racketeer Rick Rizzolo played a trick on the United States Federal
Court by pretending to be his own attorney and professing to personally
author over a dozen court documents that successfully stalled beating
victim Kirk Henry's lawsuit for over a year.
Rizzolo's antics cost Henry and the U.S.
Attorney tens of thousands of dollars in legal fees responding to bogus
To perpetrate the fraud, Rizzolo engaged
the services of jail house lawyer James "Spud" Kimsey who secretly authored
the documents Rizzolo signed.
Instead of going after Rizzolo for signing
his name to the documents, prosecutors went after “Spud” Kimsey for allegedly
practicing law without a license — and now are paying an embarrassing price
for doing so.
Following a bench trial in August 2010,
U.S. District Judge Philip Pro found Kimsey guilty of criminal
contempt and ordered him to spend three years on probation and perform
150 hours of community service. Judge Pro's errors? Not allowing the case
to be tried
before a jury as Kimsey requested, and convicting him under the wrong
rules -- rules that apply only to real attorneys.
Spud's case sparked the interest of United
States Public Defender Franny
Forsman. At taxpayer expense, the veteran defense attorney appealed,
and on February 8, 2012, the U.S. Ninth Circuit Court of Appeals agreed
with Forsman's pleadings and overturned
Kimsey's criminal contempt conviction. UNITED STATES v. KIMSEY now
sets a dangerous legal precedent, inferring that almost anyone with minimal
legal experience can practice law without a license and ghost write and
file court documents on another's behalf, as long as they don't claim to
be a licensed attorney.
However, in this case, the court overlooked
the fact that Rizzolo fraudulently signed most of the ghostwriter's documents
as his own!
In December 2009, I wrote
that the government prosecuted the wrong person for Contempt. Instead
of prosecuting Kimsey, I opined that RIzzolo should have faced additional
charges for knowingly allowing a non-lawyer to file bogus court filings
including a motion asking that Kirk Henry’s attorneys be disqualified;
subpoenas commanding Henry’s attorney appear for a deposition
at one in the morning; one commanding
a Federal Magistrate Judge to testify; and another subpoena commanding
Steve Miller to testify. All were dismissed, but their filing added
months to Henry's case.
One of the first and most disturbing
motions Kimsey authored bearing Rizzolo's signature stated: "Court
submissions by pro se litigants' are to be construed liberally and held
to less stringent standards than the submissions of the lawyers in opposition,
being provided wide latitude, including but not limited to, unfamiliarity
with rule requirements."
Here Rizzolo informs the court that as
a pro se litigant, he is entitled to special privileges not afforded licensed
attorneys. He then proceeded to take full advantage of the court's leniency
without being held liable for his actions.
Even though Kimsey caused havoc on Rizzolo's
behalf, I believe the government pursued the easiest target; an ex-con,
biker/paralegal who’s kept his nose clean for the past fourteen years.
The government let the real culprit get off, and its mistake let Rizzolo
make a mockery of the federal court.
Now the government has egg on its face,
and many hope its error of going after the wrong man is not a harbinger
of further rulings by the Ninth Circuit Court in cases involving Rick Rizzolo.
Here are excerpts from the embarrassing
Ninth Circuit Court OPINION:
|UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee,
Appeal from the United States District
Court for the District of Nevada
Philip M. Pro, District Judge, Presiding
Argued and Submitted
August 31, 2011—San Francisco, California
Filed February 8, 2012
Before: Marsha S. Berzon and Jay
S. Bybee, Circuit Judges, and James L. Graham, Senior District Judge.*
Opinion by Judge Berzon
Kimsey (“Kimsey”) has in the past engaged in the unauthorized practice
of law as well as other dishonest activities involving the legal system.
Alluding to his recent exploits, the government
characterized Kimsey as a charlatan. Whether that is so or not, our legal
system does not punish people simply because they have been proven unscrupulous
in the past and are continuing to engage in dubious activities (emphasis
government may have proven that Kimsey is, if not the Devil, no saint.
But it has failed to persuade us that Kimsey was in criminal contempt under
the applicable federal statute.
Kimsey now appeals his conviction
on four grounds, contending that: (1) he was denied his statutory right
to a jury trial; (2) he could not be prosecuted for criminal contempt under
18 U.S.C. § 402 on the basis that he did not comply with Local Rules
10-1 and 10-2; (3) § 7.285 is unconstitutionally vague as applied
to him; and (4) he did not violate § 7.285. We reverse Kimsey’s conviction
based on the first two points and so do not reach the latter two.
In 2008, Frederick Rizzolo (“Rizzolo”)
became embroiled in a contentious, scorched-earth lawsuit, in which eighteen
lawyers bombarded each other and the district court with over 500 pleadings.
Plaintiffs Kirk and Amy Henry (“the Henrys”) initiated the suit after Kirk’s
fateful visit to Rizzolo’s Crazy Horse Too “gentleman’s club” in Las Vegas,
where Kirk was attacked so ferociously that he became a quadriplegic. The
Henrys sued Rizzolo and others for damages, and sought
attachment of assets that Rizzolo and his wife had allegedly concealed
through a collusive divorce and through various cash transactions with
third parties, involving millions of dollars.
On January 22, 2009, Rizzolo’s attorneys
withdrew from representing him. From then until October 6, 2009, Rizzolo
proceeded without an attorney. During that period, Rizzolo
initially filed documents that bore the stamp of a pro se litigant.
styled as filed by “Frederick J. Rizzolo, Pro Se,” sought, among other
things, stays of discovery, dismissal, summary judgment, and disqualification
of the Henrys’ attorney.
A number of the filings raised legal arguments and cited precedent.
At the same time, the evidence also
indicated that Kimsey had provided Rizzolo with
legal assistance so substantial as to mimic those an attorney would offer.
Concluding, based on these findings,
that Kimsey had engaged in unauthorized practice of law on behalf of Rizzolo,
the magistrate ordered Rizzolo to cease using Kimsey’s services and struck
the eight documents Kimsey had prepared.
In the case before us, Kimsey was
convicted of criminal contempt of court in violation of 18 U.S.C. §
402. The contemptuous act for which the district judge convicted Kimsey,
who is not a lawyer, was the “ghostwriting” of eight pleadings for a pro
se litigant in a civil lawsuit.
that Rules 10-1 and 10-2 apply only to attorneys and therefore do not apply
to him, because he is not a lawyer.
not be convicted under that provision even if he violated the local rules.
For the foregoing reasons, we
reverse Kimsey’s conviction.
FULL UNITED STATES v. KIMSEY OPINION:
Rick Rizzolo in "Debtor's Prison?"
In his latest 16 page REPLY BRIEF filed
on Feb. 13, Rick Rizzolo once again claims he owes beating victim Kirk
Henry nothing, and asks the Ninth Circuit Court of Appeals to overturn
his nine month prison sentence (currently serving in Taft
Federal Prison) and two year extension of parole for violating the
conditions of his supervised release.
In Rizzolo's Reply Brief, attorney Dominic
"Further, Appellant Rizzolo continues to
maintain that under the express terms of the binding plea agreement in
this case, Mr. Rizzolo was not even obligated to pay restitution to the
Henrys in the first place and that that commitment was binding solely upon
the Power Company, Inc. – an independent person both in contemplation of
law and under the terms of the plea agreements in this case. And the government’s
repeated characterization of that corporation as 'closely held' does nothing
to change that fact."
Missing from Gentile's Reply Brief is the
following page from Rizzolo's signed binding
plea agreement stating that his obligation to pay Henry $9 million
is not contingent upon the realization of sufficient proceeds from the
sale of the Crazy Horse Too:
In addition to claiming to owe Henry nothing,
Rizzolo is asking the Ninth Circuit Court to reverse the lower court for
allowing attorneys for Henry to testify at the sentencing hearing characterizing
Rizzolo as a “gangster” and a “professional criminal” hell-bent on “cheating
the squares,” and for influencing the court to jail him in "debtor's prison."
Gentile chastises the lower court for allegedly:
"...allowing counsel for a civil creditor in an unrelated case to whom
a criminal defendant has not in fact been ordered to pay criminal restitution
to harangue the court in a vociferous effort to see to it that the latter
is jailed for non-payment of that civil debt for the express purpose of
coercing him to do so by and through the pain of physical confinement 'raises
the specter of the debtor’s prison this country long ago outlawed.'”
(AmericanMafia.com photo by Mike Christ) also brings back the old argument
that the government should have run his strip club in order to preserve
its (highly inflated) value.
"...absent the negligence; indeed, deliberate
indifference, demonstrated during the government’s receivership of the
Crazy Horse Too – therefore a multi-million dollar enterprise – as a direct
and un-attenuated result of which slipshod stewardship this very valuable
asset was allowed to waste into worthlessness, a proper sale of the club
would have netted sufficient proceeds to very easily and timely compensate
the Henrys as anticipated by all concerned, with change left over," as
stated in Rizzolo's latest Response.
Not mentioned is the fact that no legitimate
buyer came forward to purchase the club, only persons associated with Rizzolo
who feigned interest during the years the club was on the market, and none
of the purported buyers proved to have any funding.
At the end of Rizzolo's Response, he states
that the district court “forgot about” the initial one million dollar payment
he made to the Henrys. Not mentioned is the fact that the payment was made
by Farmer's Insurance Company from the Crazy Horse Too's umbrella insurance
policy, and not one cent came from the Rizzolo's
personal fortune hidden in the Cook Islands to avoid seizure by Henry
or the IRS.
Based on the surprise decision in the Kimsey
case, I consulted a veteran criminal defense attorney who practices exclusively
in the Federal Court system. He told INSIDE VEGAS; "The Kimsey appeal was
based on opinion -- the opinion that he was not trying to pass himself
off as a real attorney. The Rizzolo appeal is based on irrefutable facts.
He clearly violated the conditions of his parole by not reporting millions
of dollars of income."
The Ninth Circuit Court is scheduled on
March 19, 2012 to hear Rizzolo's appeal of his additional nine month prison
sentence and two year parole extension.
The Government's Jan. 26, 2012, response
to Rizzolo's APPEAL: http://www.stevemiller4lasvegas.com/RizzoloUSAnswerToNinthCircuitCourt-01-26-12.pdf
Rizzolo's Feb. 13, 2012, REPLY to the Government's