From: Kelley Lynch <kelley.lynch.2010@gmail.com>
Date: Tue, Oct 28, 2014 at 2:08 PM
Subject: Kelley Lynch Appeal Brief
To: "irs.commissioner" <irs.commissioner@irs.gov>, Washington Field <washington.field@ic.fbi.gov>, ASKDOJ <ASKDOJ@usdoj.gov>, "Division, Criminal" <Criminal.Division@usdoj.gov>, "Doug.Davis" <Doug.Davis@ftb.ca.gov>, Dennis <Dennis@riordan-horgan.com>, MollyHale <MollyHale@ucia.gov>, nsapao <nsapao@nsa.gov>, fsb <fsb@fsb.ru>, rbyucaipa <rbyucaipa@yahoo.com>, khuvane <khuvane@caa.com>, blourd <blourd@caa.com>, Robert MacMillan <robert.macmillan@gmail.com>, a <anderson.cooper@cnn.com>, wennermedia <wennermedia@gmail.com>, Mick Brown <mick.brown@telegraph.co.uk>, woodwardb <woodwardb@washpost.com>, "glenn.greenwald" <glenn.greenwald@firstlook.org>, lrohter <lrohter@nytimes.com>, Harriet Ryan <harriet.ryan@latimes.com>, "hailey.branson" <hailey.branson@latimes.com>, "stan.garnett" <stan.garnett@gmail.com>
Cc: Jeffrey Korn <jeffkornlaw@live.com>, sedelman <sedelman@gibsondunn.com>, JFeuer <JFeuer@gibsondunn.com>, "kevin.prins" <kevin.prins@ryan.com>, rwest0@gmx.com, Sherab Posel <poselaw@gmail.com>
Hello IRS, DOJ, FBI, and FTB,
I would like you to review the Appellate Brief Francisco Suarez prepared on my behalf. As of the date he filed this Appeal, we did not have the benefit of my Public Defender file. That would include, but is not limited, motions filed with respect to the allegations of "misappropriation." I still do not have that document and many others. According to Francisco, the trial record is a mess and he views this 2012 trial as an IRS matter and demands an IRS investigation. He advised me to abandon my appeal due to the issues related to prosecutorial misconduct and retaliation. We discussed the possibility that Streeter engaged in criminal obstruction of justice. Streeter lied extensively throughout the trial including with respect to IRS, federal matters, IRS required form 1099 for 2004 that I still do NOT have; Traditional Holdings, LLC's assets (Cohen borrowed or caused to be expended $6.7 million approximately and owes interest in the amount of approximately $4 million); and she lied when she said the IRS matter is a ruse and the employer is not required to provide an employee with this information, etc.
Francisco had trouble keeping up with the number of fraudulent restraining orders. My testimony proves that I did as well. The Boulder, Colorado order I requested (prior to reviewing Cohen's perjury and fraudulent misrepresentations) was NOT a domestic violence order. The Court confirmed that in writing and I now have evidence explaining why I - and others - were repeatedly told for years that this order expired on February 15, 2009.
The fraudulent domestic violence order was not addressed in the brief because it was not brought to my attention until after the brief was filed - when LA Superior Court asked me if Cohen was my "boyfriend" and explained that the BQ Case No. relates to a downtown Family Court domestic violence order.
I have opposed LA Superior Court's attempts to extort fines/fees from me with respect to domestic violence. Cohen and his representatives seem to believe that their corrupt litigation tactics allow one to engage in fraudulent conduct. I disagree. I am filing a Motion to Dismiss and will move onto federal court if I need to. This situation crosses state borders. Cohen has also attempted to argue that the fraudulent restraining orders prohibit me from transmitting or receiving IRS required information related to a 1099; illegal K-1s; K-1s re. TH; and with respect to corporate matters. They have also argued in the Motion to Vacate matter that the fraudulent orders can prevent me from effecting service on the registered agent of a corporation. And yet, they have transmitted LCI K-1s to State of Kentucky and IRS indicating that I am a partner who received $0 income for the years 2003, 2004, and 2005.
I am also attaching hereto a copy of the City Attorney's Reply Brief filed with further lies and fraudulent accusations. Those relate to, among other things, IRS and federal tax matters. That brief was written by a woman in the Domestic Violence Unit. DOJ should investigate the fraudulent use of Domestic Violence grants, etc. in Los Angeles.
A number of the issues in Francisco's Brief are confused. Who could blame him? The situation is deranged.
All the best,
Kelley
SUPERIOR COURT, COUNTY OF LOS ANGELES
THE PEOPLE OF THE STATE OF CALIFORNIA) SUPERIOR COURT
) CASE NO. BR 050096
Plaintiff and Respondent, ) TRIAL COURT NO.
) 2CA04539-01
vs.
KELLY LYNCH,
Defendant and Appellant.
APPEAL FROM THE HONORABLE JUDGE ROBERT C. VANDERET LOS ANGELES SUPERIOR COURT
FRANCISCO A. SUAREZ, ESQ. 135479
Law Office of Francisco A. Suarez
301 W. Mission Blvd.
Pomona, CA 91766
TABLE OF CONTENTS
STATEMENT OF CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I. WHETHER OR NOT A REASONABLE JURY COULD HAVE CONVICTED
II WHETHER OR NOT THE APPELLANT SHOULD HAVE BEEN ACQUITTED
ON THE CHARGES DUE TO THE INSUFFICIENCY OF THE EVIDENCE?
ARGUMENTS
I. NO REASONABLE JURY COULD HAVE CONVICTED THE DEFENDANT BEYOND REASONABLE DOUBT . . . . . . . 4
A. THE EXHIBITS BY THE PROSECUTION WERE WITHOUT
B. THE WORDS OF MS. LYNCH WERE
C. THE CRIME OF HARRASSING AND ANNOYING PHONE
D. THE RESTRAINING ORDER WAS NOT PROPERLY SERVED AND THEREFORE
E. A CRIMINAL DEFENDANT HAS THE RIGHT TO COMPEL THE ATTENDANCE OF WITNESSS AT
F. THE PROSECUTORS CONDUCT DEPRIVED MS. LYNCH OF A FAIR TRIAL………………………………………………….13
II. THE APPELLANT SHOULD HAVE BEEN ACQUITTED Of THE
CHARGES DUE TO THE INSUFFICIENCY OF EVIDENCE. . . . 14.
II. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
On or about January 5, 2012, a complaint was filed charging Defendant and Appellant Kelly Lynch, (hereinafter “Ms. Lynch”) with having committed on February 1, 2011 the offenses of Penal Code 273.6, 653M(B), 273.6(a), 653M(B), 653M(B) and 653M(B) On March 23, 2012 the court added a violation of 273.6(a) as counts 7, 8 and 9. Ms. Lynch pleads not guilty to all counts. (Court Transcript, hereinafter “C.T.” Page 23).
People’s motion to increase bail is made and the bail is increased to $25,000.00. (C.T.P.
25.) Motion for own recognizance release is denied. On April 5, 2012 the case called for
commencement of trial. Counts 4 and 5 are dismissed in furtherance of justice.
On April 4, 2012 the case is called for trial (C.T.P. 29.) The jury trial is then continued until April 5, 2012. The trial is then continued until April 6, 2012. (C.T.P. 34.) On April 10, 2012 the trial is concluded and the jury retires to commence deliberations (C.T.P. 107.)
The jury then reaches a verdict (C.T.P. 115.)
Mr. Leonard Cohen is a songwriter and a singer (Reporters transcript, hereinafter “R.T.” page 49, line 13.) Mr. Cohen knows Ms. Lynch who worked for him as a personal manager for about 17 years. (R.T.P. 49. Ls. 24-25.) According to Cohen they had a brief intimate relationship (R.T.P. 49, ls. 28-29.) Ms. Lynch was dismissed in 2004. “As soon as the relationship ended in 2004, Ms. Lynch began to e-mail me many e-mails a day” (R.T.P. 50, l. 28.)
Mr. Cohen testified that he was alarmed and frightened. “ I was concerned about my safety and the safety of my children and grandchildren “ (R.T.P. 54, ls. 19-22.)
According to Mr. Cohen the first group of e-mail messages “I transcribed myself and typed into my computer and e-mailed them to my attorneys”, Robert Kory and Michelle Rice. (R.T.P. 55, l. 5.) The next batch I recorded them from my house answering machine into a Sony cassette player and gave the cassettes to my lawyers (R.T.P. 55, ls. 16-18.) Then the third batch I recorded with my sound engineer. We put them into CD’s and those I handed to my lawyer. ( R.T.P. 55. ls. 24.) And then recently I have a little sophisticated recorder that allows me to turn it into MP3 that I can mail to my lawyers (R.T.P. 55, ls. 24-16.)
Her e-mails were routinely very long. Sometimes as long as 50 pages. (R.T.P. 59, ls. 3-4.) She often accused me of being on drugs, particularly when her voice was slurred and intoxicated (R.T.P. 59, ls.15-17.) Her e-mails often threatened to take me down and worse. (R.T.P. 60, ls. 12-13.) Ms. Lynch talked about their business relationship especially toward the end of those e-mails, which was last month (R.T.P. 61, ls. 7-9.) She routinely accused me of drug abuse (R.T.P. 61, ls. 15-16.)
“We got a restraining order in 2006 and then Ms. Lynch left the jurisdiction, moved to Colorado and in 2008 we got a restraining order against Ms. Lynch from Colorado. And then in 2011 we got another restraining order.” Exhibit 3 for identification is the restraining order from 2005. (R.T.P. 70, ls. 1-3.)
The second restraining order in Colorado was filed in Californian on May 2011 (R.T.P. 73, l. 1-3.) People’s five for identification is a document that registers an out of state restraining order (R.T.P. 74, l. 19.)
The voice mail the people played to the jury would be a fair representation Ms. Lynch was leaving on Mr. Cohen’s answering machine prior to 2005. (R.T.P. 70, ls.1-3.) After the e-mails certainly did not stop. (R.T.P. 70, l.28.) The voice mail did not stop. (R.T.P. 71, ls. 3-5.)
The second restraining order was in Colorado (R.T P. 72, ls. 26-28.) The second restraining order in Colorado was filed in California on May 2011 (R.T.P. 73, l. 14.) People’s five for identification is a document that registers an out of state restraining order. (R.T.P. 74, l. 19.) “Ms. Lynch was not calling or emailing during the period when I was on the road, around 2009, 2010”.
Ms. Lynch has many times in her messages asked about getting an amended tax return (R.T.P.157, ls. 3-5.)
Mr. Cohen received an e-mail on April 18, 2011. (R.P.T 161, ls. 8-12.) It says, Cohen told Phillip [Spector] never held a gun on him, and that would support what the LAPD believes. “On e-mails Ms. Lynch continually accused me of testifying against Phillip Spector in the secret Grand Jury” (R.T P. 165, l. 24.)
From September 20th approximately to the end of February 1. 55 e-mails. They were all from .Ms. Lynch. (R.T.P. 182, ls. 17-28.)
The specific comment that was made was the “perennial threat to take me down” (R.T.P. 194. Ls.3-4) “Sometimes Ms. Lynch says legally” (R.T.P. 196, l.4.) Another e-mail says, Cooley’s tough on crimes but doesn’t mind young men being maimed. He has to stand up to the fraud thief, Cohen. (R.T.P. 198, ls 22-25.)
Ms. Lawrence is a law clerk with the City of Los Angeles. She received the black binder from Sandra Streeter (R.T.P. 222, ls. 14-15.) She does not know where Ms. Streeter got them from. (R.T.P. 222, ls. 17-20.) Ms. Lawrence never had seen any subpoenas from GMAIL or AOL (R.T.P. 20-25.) She did not know who the owner of the actual e-mail address is (R.T.P. 222, ls. 26-28.)
Mr. Cohen recognized the voice mail to that of the voice of Ms. Lynch on February 15, May 11, and May 28, 2011 ( R.T.P. 249, ls. 20-26 to 258, ls. 1-15.)
On December 23, 2011 Mr. Cohen identified an e-mail specifying Leonard Cohen does have a small to non-existent penis (R.T.P. 293, ls. 9-10.) Mr. Cohen considered the e-mail as vile. (R.T.P. 262, 20-28.) From February 2011 through the end of June 2011 Mr. Cohen found such e-mails annoying (R.T.P. 262, ls .21-26.) Mr. Cohen was annoyed by the voicemails during the time period of July 1, 2011 to the end of the year 2011 (R.T.P. 263, ls. 9-12.)
Mr. Cohen got it wrong as far as dates receiving the e-mail on March 11, 2012. It was actually March 11, 2011 (R.T.P. 270, ls. 21-28 to Page 271, ls. 2-8.)
Mr. Cohen had hired Ms. Lynch to manage Mr. Cohen’s accounts. (R.T.P. 273, ls. 1-2.) Mr. Cohen was very inactive in managing his own accounts (R.T.P. 273, ls. 3-5.) Through time Ms. Lynch was entrusted implicitly with all of Mr. Cohen’s affairs (R.T.P 274, ls. 3-6.)
Mr. Cohen and Ms. Lynch had an intimate relationship, sometimes sexual that spanned for a period of time (R.T.P. 275, ls 13-25.)
At another hearing on March 23 Mr. Cohen was asked if his relationship with Ms. Lynch was purely a business relationship (R.T.P. 276, l. 17-28.) Their personal and business relationship ended in October of 2004 (R.T.P. 277, l.17.)
Mr. Cohen did not request documents from 2001 through 2004 from his manager that requested his taxes. (R.T.P. 283, ls. 10-13.) Mr. Cohen did not talk to his manager who handles his taxes Ms. Lynch’s information for him to send the information to (R.T.P. 283, l.12.)
Mr. Cohen’s attorneys are Robert Kory and Michele Rice (R.T.P. 283, ls. 15-21.) Mr. Cohen obtained an order in 2008 from Colorado (R.T.P. 298, ls. 21-28.) The order was not registered until 2011 (R.T.P. 300, ls. 22-23.) It was registered in Los Angeles (R.T.P. 301, ls. 10-13.)
If you could just take the words without the tone there is nothing threatening there. (R.T.P. 313, ls. 18-22.) Ms. Lynch never said she was going to kill Mr. Cohen. (R.T.P. 314, ls. 28.) Ms. Lynch never said that she was going to see Mr. Cohen at a particular place or location. (R.T.P. 315, ls. 3-4.)
Peoples Exhibit 24 contained an attachment of the Colorado restraining order. Michele Rice (hereinafter “Ms. Rice”) sent it on February 14, 2011. Half an hour later she received approximately 95 e-mails. Ms. Lynch in the e-mail said it was a fraudulent restraining order and she wanted some tax information. (R.T.P. 333, ls. 20-23.) Ms. Rice would personally save the e-mails during the period between 2004 and 2011 if they were on her yahoo! Small Business Account. (R.T.P. 362, ls. 14-23.) She did not sit there and supervise if the e-mails were for Mr. Kory. (R.T.P. 363. Ls. 13-28.)
On May 25, 2005 one day after a SWAT team incident a custody manner had been filed. (R.T.P. 462, ls. 11-15.) “ I don’t know Mr. Kory at all. I had lunch with him, I stopped by his office and I saw him at the restraining order hearing at Boulder “ (R.T.P. 462, ls. 18-27.)
“I went to a lunch meeting with Robert Kory. I was told by Mr. Kory that there was fraud, tax fraud on every entity: Blue Mist Touring, Traditional Holdings, LC Investments. There were problems with the Stranger that had tax issues. Mr. Kory asked if I would mediate on Mr. Cohen’s side against his advisors. Mr. Kory told me that Arther Indursky, Don Friedman and Stuart Fried of Grubman, Indursky Firm committed fraud and inducement, as did Greg Mcbowman.”
Ms. Lynch met Mr. Cohen in 2005 when she was employed by the law firm of Machat and Machet. She began working with Mr. Cohen after Mr. Machet died. (R.T.P. 448, ls. 13-24.) She worked from 1988 until 2004. In several e-mails Ms. Lynch was requesting to be paid in regard to commissions, deals ect. (R.T.P. 457, ls. 11-28.) At no time during 2004 through 2005 the police did not contact Ms. Lynch regarding the threatening of Mr. Cohen and his children or Mr. Kory. (R.T.P. 466, ls. 1-8.)
“I spoke to Agent Bill Betzer on April 15, 2005 after I paid my taxes in full” (R.T.P. 463, ls. 20-23). I did receive a phone call from Agent Kelly Sopku of the Treasury regarding this mail. I attached an e-mail of Agent Sopku telling me to report to her. And I did meet with her and her partner, whose name is Brandon” (R.T.P. 464, ls.13-16.) “I attached an e-mail to me of Agent Sopku saying for me to report this to Agent Luis Tejeda of the IRS unit in Los Angeles. And to go to Agent Tejeda with whatever information and evidence I had regarding this tax matter (R.T.P. 464, ls. 25-28, R.T.P. 465, ls. 1-3.)
I was never served with a summons regarding a default judgment in 2005. (R.T.P. 468, ls. 18-26.) I read the complaint when it was put online in April of 2010 and I was astounded at the allegations. I was not represented (R.T.P. 469, ls. 11-21.) From 2006 to 2012 Ms. Lynch never received any of the tax information she requested from Mr. Cohen. (R.T.P. 478, ls. 26-28.)
“One of the main reasons I contacted Leonard Cohen is I have K-1s that were transmitted to the IRS that do not belong to me. I was not a partner on LC Investments. That causes tremendous confusion with my taxes “ (R.T.P. 497, ls. 1-19.)
None of the e-mails are harassing. I feel like I’m being harassed by not being given the information. Another e-mail has to do with the fact that I think Leonard Cohen has lied about Phil Spector holding a gun on him (R.T.P. 501, ls, 24-27.)
Ms. Lynch was at the restraining order hearing in Colorado. I told the judge I felt Leonard Cohen was dangerous to me and asked if this restraining order would protect me, that’s correct. There was no evidentiary hearing. (R.T.P. 511, ls. 18-21.) I actually filed a motion to vacate with Judge Enichen after I went back and I realized that Leonard Cohen’s perjury and fraud were excessive. (R.T.P. 512, ls. 14-17.) Ms. Lynch understood that she could have no contact with Leonard Cohen from 2005 until 2008. Ms. Lynch was never served with a summons regarding the lawsuit she was defaulted on in 2005 (R.T.P. 468, ls 18-26.) Not all of those voicemails were when Ms. Lynch was sober. There were some when I drank too much. (R.T.P. 527, ls. 10-15.) And I found the sound distorted. I couldn’t tell (R.T.P. 527, ls. 24-25.)
I. NO REASONABLE JURY COULD HAVE CONVICTED THE DEFENDANT BEYOND REASONABLE DOUBT FOR EACH AND EVERY ELEMENT OF THE CRIME CHARGED
In reviewing a judgment of conviction, the Appellate Court must view the evidence in the light most favorable to the prosecution and presume, in support of the judgment, the existence of every fact the trier could reasonably deduce from the evidence. People vs. Sweeny 556 Cal.App.2d 198, 198 Cal.Rptr. 182 (1960). The court does not, however, limit its review to the evidence favorable to the prosecution. People vs. Johnson 26 C3d 537, 162 Cal.Rptr. 431 (1980). The court must resolve its issue in light of the whole record - that is the entire picture of the defendant put before the jury – may not limit its appraisal to isolated bits of evidence selected by the respondent and the court must judge whether the evidence of each of the essential elements is substantial. People vs. Basset 69 C2d 122, 70 Cal. Rptr. 913 (1968). It is the function of the Appellate court in reviewing a criminal conviction on appeal to determine whether the record contains any substantial evidence tending to support the finding of the trier of fact, and in considering this question must view the evidence in the light most favorable to the finding. In Re P 103 Cal.Rptr. 425, 7 Cal.3d 801 (1972). As specified in In Re P the Supreme Court of California held:
“The prosecution burden is a heavy one. To justify a conviction, the trier of fact must be reasonably persuaded to a near certainly. The jury must therefore have reasonably rejected all that undermines
The jury instruction given to the jury is as follows:
The Defendant is charged in counts Two and Four with making annoying or harassing phone calls and emails to Leonard Cohen, in violation of Penal Code 653. Two alleges that such calls and contacts were made on or between February and June 30, 2011. Count Four alleges that such calls and contacts were made on or around the dates of July 1, 2011 and January 9, 2012.
To prove the defendant is guilty of this crime, the People must prove that:1. The Defendant made repeated telephone calls or repeated contact by e-mails combination 2. The Defendant made such phone calls and/or contacts with the intent to annoy and harass Leonard Cohen; 3. The calls or contacts were not made in good faith or in the ordinary course of business.
It is not necessary that the conversation actually ensued from the telephone call or emails for the statute to be violated.
It is the policy of this state to construe penal statutes as favorably to the defendant as the language and circumstances allow Keeler v. Superior Court 2 Cal. 3d 619, 631, 87 Cal. Rptr 481 A criminal defendant is entitled the benefit of every reasonable doubt, in questions of statutory interpretation as well as of fact. Keeler v, Superior Court, supra.
A. THE EXHIBITS PROFERRED BY THE PROSECUTION WERE NOT AUTHENTICATED AND INADMISSIBLE
Under Evidence Code 250 electric email is considered a writing. Any writing must be authenticated. Evidence Code 1400-1401 Authentication of a writing means a) introduction of evidence sufficient to sustain a finding that is the writing that the proponent of the evidence claims it is or b) the establishment of such facts by any other means. Another way to authenticate writing is to show a chain of custody.
Chain of evidence is defined as follows:
In evidence, the one who offers real evidence, such as narcotics in a trial of a drug case, must account for the custody of evidence from the moment it reaches his custody until the moment it is offered into evidence, and such evidence goes to the weight not the admissibility of evidence.(quotes) For example, “chain of custody is proven if an officer is able to testify that he or she took control of the item of physical evidence, identified it, placed it in a locked or protected area, and retrieved the item being offered on the day of trial. (quotes). BLACKS LAW DICTIONARY 6th Edition, Nolan, Joseph 1990
Where defect in chain of custody of evidence is alleged, prosecution must introduce sufficient proof so that a reasonable juror could find that evidence is in the substantially the same condition as when it was seized, and may admit evidence if there is reasonable probability that evidence has not been changed in important respects. U.S. v. Matta-Ballesteros, 71 F2d 754, C.A. 9 (Cal. 1995) opinion amended on denial of rehearing 98 F. 3d 1100, certiori denied 117 S. Ct. 965, 519 U. S. 1118, 136 L.Ed. 2d 850.
There were no foundational facts sufficient to constitute a chain of custody. Mr. Cohen as specified in the record transcribed the messages himself. This is not a reliable source.
This mishandling of the evidence is unwarranted and diminishes the credibility of the evidence. Therefore such evidence constitutes reversible error.
Furthermore to allow Mr. Cohen to enter evidence that was processed through his sound engineer [and transferred onto other forms of media] is another instance where the evidence is tainted. This is another fact which points to an error with the evidence presented and ruled upon by the judge. The emails themselves were not obtained through subpoena and there was no attempt to prove anything involving a an IP address, registered owner of a email account , or anything that would authenticate Ms. Lynch’s alleged email accounts.
B. THE WORDS ATTRIBUTED TO MS. LYNCH WERE PROTECTED BY THE FIRST AMENDMENT FREEDOM OF SPEECH
In a recent federal case U.S. v. Cassidy 814 F. Supp2d 574 (2011) a federal district court judge blocked the government’s use of a federal anti-stalking law to prosecute an individual for posting criticism of a public figure uttered through a twitter communication. The court in dismissing the case ruled that Mr. Cassidy was being prosecuted on the content of his speech not conduct. As the Supreme Court has noted “the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern” is the core of First Amendment protections , even when it where speech includes “vehement, caustic, and sometimes unpleasantly sharp attacks” New York Times v. Sullivan , 376 U.S. 254, 270 (1964)
In U.S. v. Cassidy 814 F. Supp2d 574 (2011) the court dismissed the case on the bases that a public figure has a high threshold in regard to a finding that words about them are annoying. A content based restriction on protected speech must survive strict scrutiny U. S. v. Playboy Entmt Group, Inc. 529 US 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). Mr. Cohen is a public figure. Such utterances are an unavoidable consequence of being a public figure. Therefore the instant case should be reversed.
C. THE PROSECUTION’S PROFERRED EVIDENCE WAS INSUFFICIENT TO PROVE VOICE MAILS AND E-MAILS VIOLATED THE STATUTE.
Under the statute prohibiting obscene electronic communications made with intent to annoy, the meaning of the words must be contextual, the matter must be judged in its entirety, including in the context in which it is presented. In Re C.C. (2009) 100 CalRptr 3d 746, 178 Cal.App.4th 915 In In Re C.C. the court looked to People v. Hernandez (1991) 231 CalApp3d 1376, 283 Cal.Rptr 81. Hernandez involved a traditional type of annoying telephone call, where Hernandez repeatedly called a woman over a two week period, hurling abuse by using vile terms such as calling her a fat “bitch”, a whore and a “C”.
The definition of obscene has three distinct parts, offensive to ones feelings, or to prevailing notions of modesty, or decency: lewd.
In the instant case Ms. Lynch did not use any such words that would violate the statute. Her words take you down do not connote any decency subjects. As reflected in the transcript Ms. Lynch never indicated she was going to harm Mr. Cohen. Ms. Lynch never tried to get Mr. Cohen to go to a particular place at a particular time.. Furthermore Mr. Cohen has been known as an artistic ideologue of indecent proclivities.
The evidence proffered in this case is for a legitimate business purpose. Ms. Kelly had to do her taxes and was entitled to her tax records. The record reflects that several of those persons who were in possession of the records never contacted Ms. Lynch. This quest for records rebuts a key element in the Prosecution’s case.
Furthermore there was also evidence of receiving documents like the K 1’s from other sources that were not the property of Ms. Lynch. This is another legitimate reason for Ms. Lynch to request tax records of Mr. Cohen.
An error will be held prejudicial where there exists such an equal balance of reasonable probabilities as to leave the reviewing court in serious doubt as to whether the error had affected the result. Whether there is prejudicial error resulting in a miscarriage of justice must, in the last analysis, depend upon the particular facts of the individual case. People vs. Weatherford 27 C2d 401 164, P2d 753 (1945) (EMPHASIS ADDED). The facts of this case are certainly in array. Both versions of the events are completely opposite. As the whole, however, the exaggerations of the alleged victim are more pronounced. There are two versions of the event. One version is that Ms. Lynch was sending e-mail and voice mails to Mr. Cohen to harass and annoy him. The other version is that these e-mails and voice mails were not authenticated and should be stricken. The other inference is that the e-mails were for the purpose of Ms. Lynch requesting the tax records for her personal records and tax filing purposes.
The uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable People vs. Scott 21 Cal.3d 284, 296 (1978). An appellate court will assume every fact and inference, which the trier of fact could reasonably have deduced from the evidence People vs. Hanggi 265 Cal.App.2d Supp. 969, 972, (1968). To warrant reversal, it must be made clearly to appear that, on no hypothesis, is there substantial evidence to support the conclusion of the lower court People vs. Mayberry 15 Cal.3d 143, 150 (1975). Again by reviewing the facts of the case there is no substantial evidence to support the conclusion of the jury.
D. A CRIMINAL DEFENDANT HAS THE RIGHT TO COMPEL THE ATTENDANCE OF WITNESSES AT TRIAL
A criminal defendant has the due process right to compel the attendance of witnesses at trial United States Constitution VI, XIV, California Constitution Article 1 Section 15, Penal Code Section 683. In the instant case the trial judge made a reversible error by failing to allow the defense witness from the IRS Tejeda to testify. The witness would be able to testify as to the tax predicament that Ms. Lynch was in. She had no other choice but to insist that she obtain tax documents to clear her name.
E. THE RESTRAINING ORDER REGISTERED IN CALIFORNIA WAS NEVER SERVED ON MS. LYNCH AND THEREFORE ANY ACTION IS NULL AND VOID AS SHE NEVER RECEIVED NOTICE AND THEREFORE SAID CONVICTION IS VIOLATIVE OF MS. LYNCH DUE PROCESS RIGHTS.
In the instant case Ms. Lynch specified that she was homeless when the restraining order was served. If indeed that is the case there would be no way that the proof of service would be true. In fact there was no proof of service. Therefore use of the restraining order in California would not be possible and the conviction for violating it would be reversible.
E. THE PROSECUTIONS ARGUMENTS WERE OUTRAGEOUS AND CONSTITUTE REVERSIBLE ERROR
In the instant case the prosecution alluded to the fact that Ms. Lynch apparently stole money from Mr. Cohen. This was not true as there was evidence that Mr. Cohen was the one who owed Ms. Lynch money. Furthermore Ms. Lynch had contacted the District Attorneys Major Fraud unit to report the problems with Leonard Cohen, his tax fraud, the fact that he had stolen millions from Ms. Lynch and she had the evidence to prove it. This plus Mr. Cohen refusal to give her taxes.
Another point is that there was mention that Mr. Cohen had lied about Mr. Phil Spector to the grand jury. The Prosecutor’s office who the Attorney Streeter works for have a vested interest in making sure that the prosecution of Mr. Spector remains intact. The District Attorney failed to prosecute Mr. Cohen for fraud. The protection of Mr. Cohen seems to be borne out by the instant case in which Ms. Lynch is being unlawfully prosecuted.
Objection to the misconduct must be made at trial before the point may be raised on appeal unless a timely objection and admonishment would not have cured the harm. People v. Guiton (1993) 4 Cal4th 253, 17 Cal Rptr2d 365 In this instance case the Los Angeles City Attorneys office should have recused itself instead of attempting to silence the truth.
When the sufficiency of the evidence is challenged, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” People vs. Kelly 51 Cal.3d 931, 956, (1990) citations omitted. This insufficiency of the evidence stems from testimony that is tainted. Furthermore there is a myriad of issues which constitute a denial of a fair trial of Ms. Lynch. She was arrested and then at her bail hearing her bail was increased. She was subject to a prosecution where her acts were condemned from the start. Another interesting act of unfairness was Mr. Kory testifying in a custody battle against Ms Lynch when in reality he only had lunch with Ms. Lynch once. As indicated Mr. Kory at that lunch attempted to convince Ms. Lynch to testify on Mr. Cohen’s behalf to essentially blame other parties with the tax problems of Mr. Cohen.
Based on the above it is respectfully requested that the instant case be overturned and dismissed.
Dated_______________
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 8.883, subdivision (b)(1) of the California Rules of Court, the undersigned appellate counsel, relying on the word count of the computer program used to prepare this brief, certifies that the brief contains 4951 words, which does not exceed the 6800 word limit.
