River Deep Blog: Kelley Lynch Email To Richard Westin & Norman Posel Re: The Allegations In Greenberg's Lawsuit Against Leonard Cohen & Robert Kory That She Wholeheartedly Affirms

From: Kelley Lynch <kelley.lynch.2010@gmail.com>
Date: Tue, Oct 28, 2014 at 2:40 PM
Subject: Re: 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>, "Francisco.A.Suarez" <Francisco.A.Suarez@verizon.net>, Stuart Fried <sfried@gispc.com>, dfriedman@gispc.com, mcbow <mcbow@aol.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>

Richard Westin and Norman Posel,

When I file my Motion with Judge Hess (in the fraud judgment matter), I will provide you with a confirmed copy and signed copy of this document I am creating. It acknowledges what I believe is factual in Neal Greenberg's lawsuit. That includes, but is not limited to, witness tampering, witness intimidation, extortion, bribery, etc. I was asked to testify against Westin, Greenberg, and others, and I believe Cohen and Kory (based on my conversations with them and my lawyers' communications to me) that they me to lie. Furthermore, I was advised that they intended to go after all of Cohen's advisers - first in a civil manner and then in criminal manner. That includes Stuart Fried, Don Friedman, and Greg McBowman. That's the only reason they are copied in on this email. And that is why I refused to accept, among other things, 50% community property (palimony), my entire 15% commission as Cohen's personal manager, and the value of my 15% ownership interest in the IP. I have all the signed non-revocable assignments. Leonard Cohen understood his personal transaction fees and also signed retainer agreements with individuals. Westin and Greenberg didn't burden the sale with those fees. Westin and Greenberg did not induce Cohen into selling the IP. See his declaration in the CAK matter. That will be attached to my Motion together with other evidence.

Kelley Lynch

From: Kelley Lynch <kelley.lynch.2010@gmail.com>
Date: Tue, Oct 28, 2014 at 2:29 PM
Subject: Re: 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>, "Francisco.A.Suarez" <Francisco.A.Suarez@verizon.net>
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>

Hi Criminal Division DOJ,

Korn sent me an Objection document, which I forwarded you, that took the position that Boies Schiller's statements that Cohen/Kory attempted to engage me in criminal activity were hearsay. On the other hand, Michelle Rice attached a tremendous amount of evidence from Greenberg's Colorado lawsuit against Cohen. Once again, I agree with Greenberg on these points. I find everything else to be self-serving.

I will sign and submit this to you, and Judge Hess, with the Motion I will hopefully file at the end of this week, beginning of next week. The perjury, fraudulent misrepresentations, etc. are inconceivable and overwhelming. Robert Kory continues to lie that I reported the tax fraud in 2007 although that is simply perjury. I reported the allegations to Agent Bill Betzer on April 15 2005 and to the Fraud Unit, etc. thereafter. Prior to reporting this to Agent Betzer, I had spoken to the State of Kentucky's Revenue Cabinet. I have also spoken with Rob Watts in the State of Kentucky's Fraud Unit and he would like everything I sent IRS. I advised him that I gave IRS permission to review all my emails with Cohen, his representatives, and others. I've authorized IRS to use them as they see fit.

This situation is a mess. However, the use of these fraud orders to prevent me from requesting or transmitting IRS required information is a federal matter that should concern the DOJ's Criminal Division.

I think they are simply playing games because Cohen has money and their tactics have worked at LA Superior Court. LA Superior Court doesn't require evidence and willfully disregarded all corporate books, records, stock units, agreements, etc. The judgment must be illegal because the entities inserted into that judgment are not named as parties to the lawsuit. Furthermore, that judgment effectively altered my previously filed federal tax returns. I have challenged all of this - including Cohen's fraudulently obtained IRS and FTB refunds.

All the best,

Kelley

SCHEDULE OF

FACTUAL ALLEGATIONS & STATEMENTS

NEAL GREENBERG AMENDED COMPLAINT

I, Kelley Lynch, agree with the following factual statements and was a witness to much of what was addressed in Neal Greenberg’s Amended Complaint (Denver District Court, Case No. Case 1:05-cv-01233-LTB). Therefore, Neal Greenberg and I are in agreement with respect to the following facts. See Neal Greenberg Amended Complaint & Exhibits attached hereto and made a part hereof. Kelley Lynch opposes all statements raised in Greenberg’s Complaint and not contained in the following excepts taken directly from the Amended Complaint. See Amended Complaint attached hereto and made part hereof.

Dated: 23 October 2014

___________________________________

Kelley Lynch

Neal Greenberg. Vs. [HEADING]

Denver District Court, Case No. Case 1:05-cv-01233-LTB

Judge Lewis Babcock

Defendant Leonard Cohen (“Cohen”), a noted recording artist, acting directly on his own behalf, and through his agent and attorney, Robert Kory (“Kory”), has threatened to take or has taken, improper and unlawful actions, including bribery and intimidation of a witness, subornation of perjury, defamation …

Cohen’s extortion scheme was eventually exposed by Lynch and ultimately frustrated …

Cohen has made clear that he asserts rights over certain investment funds that belong to Traditional Holdings, LLC (“Traditional Holdings”), a dissolved Kentucky entity that was managed and 99.5% owned by Lynch and 0.5% owned by Cohen.

From the early 1990s, impressed with a new strategy used by other Hollywood celebrities to cash in on their future revenue streams from IP rights and increase short-term income (called a “Pullman
or “Bowie” bond, after the artist David Bowie who first used it), Cohen … worked aggressively with advisors, including Greg McBowman, to auction off portions of his IP to the highest bidder.

Lynch arranged for Cohen to have a first meeting with Greenberg in 1996 to discuss Cohen’s investment options for the proceeds from the anticipated First Sony Sale.

During this meeting, and at Cohen’s request, Greenberg suggested ways in which Cohen could structure the investment of his proceeds from the First Sony Sale so as to reduce tax consequences and generate substantial income.

Cohen worked with, and began to be represented by, a creative tax attorney and law professor from the University of Kentucky, Richard Westin (“Westin”). Cohen also had other advisors and consultants working with Lynch on his business, music and tax matters, including Greg McBowman … Ken Cleveland, as well as Stuart Fried and other attorneys at the law firm of Grubman Indursky & Schindler, P.C.

Ultimately, Cohen decided to transfer some of the income from the First Sony Sale into charitable remainder trusts. On October 30, 1996, Cohen established three trusts: the Sabbath Day Charitable Trust (the "Sabbath Day Trust"), the Cohen Family Charitable Trust (the "Cohen Family Trust"), and the Cohen Remainder Trust (the "Remainder Trust") (collectively, the “Trusts”).

Cohen … repeatedly withdrew large amounts of the Trusts’ assets. On repeated occasions, TAS notified Cohen (both directly, when possible, and per instruction through Lynch) that Cohen was spending more than recommended from the Trusts, and thus, was draining down the Trusts’ principal.

On one such occasion, on April 13, 2001, Greenberg, on behalf of TAS, wrote to Cohen: “I am writing to you to discuss the income withdrawals you’ve received from your portfolio and to provide you with some helpful guidelines for the future. When we originally constructed your portfolio in 1997, you may remember that we had extensive conversations about how much you required for your annual living expenses.”

In or about 1999, Cohen put more of his IP up for auction. In 1999, Sony and Cohen … negotiated for a second sale of IP to Sony for about $8 million (the "Second Sony Sale"). The artist royalties to be sold were represented by Cohen as being held by another … entity, Blue Mist Touring Co., Inc. ("Blue Mist"). Cohen was the Chairman, President, and majority shareholder of Blue Mist, owning 425 shares, while Lynch was the Assistant Secretary and minority shareholder of Blue Mist, owning 75 shares, or 15% of the company.

Cohen asked Westin, and in the spring of 2000, Greenberg, to provide advice about how to invest the anticipated proceeds from the Second Sony Sale and minimize the sale’s tax burden.

Cohen leapt at this opportunity to minimize his tax burden [via Traditional Holdings, LLC], just as he had explored all possible means of reducing his taxes in years past, such as by seeking a tax credit for donating his papers to a Canadian museum [University of Toronto], and using artifices in dealing with Sony to avoid paying any Canadian taxes (as a Canadian citizen) on his royalty income earned in Canada.

Westin’s proposed plan had the following basic components: a limited liability company – which eventually became Traditional Holdings – would be created. Blue Mist would transfer certain IP assets to Traditional Holdings in exchange for a deferred annuity, to be paid to Cohen beginning in about 10 years. Traditional Holdings would then sell the assets it received from Blue Mist to Sony. The tax plan prevented Cohen, the annuitant, from owning more than a de minimis interest in Traditional Holdings. Therefore, Cohen would own less than 1%, and another person – who ultimately was Lynch – would own the remaining LLC interest (more than 99 percent).

Westin outlined this proposal to Cohen and Lynch both orally and in a series of letters and other written communications between October 2000 and December 2000. See, e.g., Exh. 1 attached.

In these written communications, Westin explicitly warned Cohen that since the annuity plan gave significant transactional control to Lynch, and also potentially placed tax and other burdens upon her as majority shareholder, the plan would work only if Cohen and Lynch maintained (as they had in the past) a long-term relationship of personal and professional trust which would secure their mutual obligations as manager of the obligor (Lynch) and annuitant (Cohen). See, e.g., Exh. 2 attached.

Cohen carefully reviewed, understood, and signed off on the ownership structure of Traditional Holdings – including the fact that Lynch would own 99 percent of Traditional Holdings’ membership interests, so as (among other reasons explained by Westin) to avoid any suggestion of self-dealing.

First, Cohen reviewed the Traditional Holdings Articles of Organization, and reviewed and executed the Traditional Holdings Operating Agreement, which set forth in detail the entity’s ownership structure and managerial procedures. See Traditional Holdings Articles of Organization and Operating Agreement (Exh. 3 attached).

Second, Cohen participated, at his request, in conference calls with Westin and Lynch and/or Greenberg during which the structure was carefully reviewed.

Third, Cohen talked about the structure of Traditional Holdings privately with Lynch, including when he forced her to discuss it with him while he took a bubble bath.

Fourth, in addition to several explanatory faxes he received from Westin describing Traditional Holdings, Cohen communicated specific questions, through Lynch, relating to Traditional Holdings’ ownership and transactional structure, which questions Westin answered in a letter written directly to Cohen on December 4, 2000, and faxed (as with his prior memos) directly to Lynch and Cohen. See, Exh. 2.

Moreover, regardless of whether Lynch owned 1 percent or 100 percent of the shares of Traditional Holdings, Cohen knew or should have known that she had or came to have authority – through a durable power of attorney and pursuant to her role as Traditional Holdings’ manager – to act, and give directions, on Traditional Holdings’ and on his own behalf. See, e.g., Exh. 3.

Likewise, no matter who owned the majority of shares of Traditional Holdings, the obligation to fulfill a deferred annuity obligation to Cohen remained the same. Thus, Cohen's interests in the firm (the long term annuity payments) were identical, no matter how his purported ownership interest in the assets were held and invested in the interim.

In December 2000, Westin created Traditional Holdings as a Kentucky limited liability company. Lynch was named as the initial manager in the Articles of Organization, and both Cohen and Lynch were appointed as managers in the Operating Agreement. Id. Also in December 2000, Cohen signed a Private Annuity Agreement with Traditional Holdings which document sets forth Traditional Holdings’ annuity obligations to Cohen. See, Private Annuity Agreement (Dec. 7, 2000) (Exh. 4 attached). Lynch signed the Private Annuity Agreement on Traditional Holdings’ behalf. Westin maintained, and continues to maintain, that the company and its annuity contract with Cohen are legitimate under prevailing interpretations of the federal tax code.

To purchase her ownership interest in Traditional Holdings, Lynch was required to submit to Traditional Holdings a promissory note for $240,000. It was agreed that Lynch would receive a salary and/or distributions from Traditional Holdings sufficient to pay down the $240,000 promissory note and to cover tax liabilities. See, Exhs. 2 and 3.

As set forth in the Operating Agreement, Traditional Holdings was authorized to issue loans to its members, Cohen and Lynch, as long as the loans were paid back before the annuity obligations commenced. See, Exh. 3.

In April 2001, the Second Sony Sale was completed. The gross proceeds of the Second Sony Sale were approximately $8 million, less certain identified costs, expenses, and holdbacks for undelivered work.

Of these proceeds, Cohen had already requested and received $1 million as an advance in November 1999. Cohen was well aware of this $1 million advance because it became the subject of a tax dispute with the Internal Revenue Service in 2002.

Of the remaining proceeds of the Second Sony Sale, [certain] amounts were paid to cover the costs involved in closing and negotiating the Second Sony Sale:

$350,000 Grubman Indursky & Schindler, P.C. (attorneys for Cohen)

$333,750 McBowman Consulting Group (consultants for Cohen)

$30,450 Epstein Backer & Green, P.C.

$1,101,250 Stranger Management (commissions to Lynch's company)

Kelley Lynch comments in bold: The following amounts, as confirmed in Cohen’s Complaint, should have been fully addressed in Neal Greenberg’s Amended Complaint. Cohen’s Complaint, Clause 61, confirms that transaction fees related to the 1^st and 2^nd Sony deals totaled approximately $4.7 million and listed the following amounts:

$1.2 million – Stranger Management

$350,000 – legal fees (Grubman, Indursky firm)

$350,000 – consultant fees (Greg McBowman)

$500,000 – for federal income taxes and penalties due on Sony’s $1 million advance paid on the sale in 1999.

$100,000 – Richard Westin legal fees

$200,000 – Leonard Cohen’s settlement fees re. failed CAK bond deal

Additionally, Cohen withdrew approximately $592,000 as a “shareholder loan” from the Traditional Holding account to purchase homes for his son and girlfriend. The Greenberg Complaint confirms that $2,084,518 belonging to Traditional Holdings, LLC was deposited into Leonard Cohen’s account. Leonard Cohen also personally received $1 million advance on the Traditional Holdings, LLC 2001 sale and failed to transfer this amount to the corporate entity. The above expenses, loans, income and deposits total: $6,376,518.00. In addition to this, a Promissory Note was prepared and signed by Leonard Cohen. That Promissory Note addressed an additional approximate amount of $355,000 Leonard Cohen owed Traditional Holdings bringing the total to: $6,626,518.00 with interest in the amount of 6% per annum.

None of these listed expenses had anything to do with either the formation of the annuity plan or

with Traditional Holdings’ dealings … Westin did receive a modest fee for his work on the Traditional Holdings documents, and for consulting with Sony on Cohen and Traditional Holdings’ behalf.

Agile Group [sent] official monthly statements to Cohen at the Larchmont Address (the record address for Traditional Holdings) setting forth the performance of the Traditional Holdings’ funds invested in the Agile Safety Fund. See, e.g., Exhibit 6 (example of monthly statements sent by independent outside administrator). In addition, Agile Group, LLC sent monthly letters to Cohen which, as a courtesy, summarized the deposits into and withdrawals from the Agile Safety Fund by Traditional Holdings. Id. (example of monthly summaries sent by Agile Group, LLC).

No sooner had Traditional Holdings been funded, however, than Cohen – just as he had done with the Trusts’ assets from the First Sony Sale, and notwithstanding Greenberg’s prior warnings about draining down investment money – began to dissipate the Traditional Holdings funds, jeopardizing his own long-term annuity interests, as well as the company’s legitimacy. Greenberg and others were immediately alarmed by Cohen's desire and tendency to treat this company like his own personal piggybank, out of which he could borrow or take distributions against his annuity benefits.

For example, almost immediately after the funding of Traditional Holdings, Cohen took out a loan for $50,000. This was followed, during 2001 and 2002 alone, by several loans to Cohen … to cover tax liabilities, houses for Cohen's son and his current girlfriend, and living expenses. These 2001-2002 loans to Cohen –amounting to over $1 million – were deposited directly into Cohen’s personal bank account at City National Bank in Beverly Hills, California.

In March 2002, Greenberg [spoke to] Cohen directly by telephone, Cohen “admitted he was spending too much and seemed a little shaken when [Greenberg] reminded him how much he had just spent on gifts to friends."

Lynch repeatedly assured Agile Group, LLC and TAS that the loans from Traditional Holdings were being properly documented with Westin’s assistance. Cohen’s tax attorney, Westin, also was aware of and in regular communication with Lynch [Cohen, Greenberg, and Cohen’s other representatives] concerning the shareholder loans and other aspects of the affairs and management of Traditional Holdings.

The March 5, 2002 Traditional Holdings Board Meeting Minutes, prepared at Westin’s direction, state “that the level of borrowing was undesirable and [the members] expressed their assent that further borrowing was discouraged, even though the borrower’s [Cohen’s] credit and collateral were good.”

Cohen, however, gave no sign that he had any intention of abating his spending habits. In an e-mail to Lynch dated March 4, 2002, Cohen thanked Lynch for “keeping [him] informed,” and instructed her to “give lots of money to everyone.”

Because these shareholder loans were to be repaid, and because it was necessary to protect the entity’s integrity for tax purposes, these shareholder loans were properly characterized, on Cohen’s tax attorney Westin’s advice, as Traditional Holdings assets when calculating the entity’s value.

Lynch, on Cohen’s behalf, sent e-mails to Colorado in response to Greenberg’s warnings, defending the loans, giving assurances that all of the loans were proper and documented, and assuring that they would be paid off when Cohen received the money from another, upcoming Sony transaction.

In October 2004, Cohen and Lynch had a major falling out, the details of which remain unknown to Plaintiffs. As a result of this falling out, the Third Sony Sale – which appeared to be on the verge of consummation – never happened.

On October 21, 2004, Cohen personally contacted Greenberg by e-mail and informed him that Lynch was “busy with other aspects of [his] career,” and therefore, Cohen had “relieved her of all financial responsibilities.” Cohen further stated that Lynch “need not be copied on your statements or reports,” and that Cohen's new accountant would “be in touch.”

On October 22, 2004, Cohen sent another e-mail to Greenberg stating that Lynch “no longer represents me,” and directing Greenberg not to “respond to any of her instructions.”

On or about October 24, 2004, Cohen again communicated directly with Greenberg by e-mail, stating that his business address was no longer the Larchmont Address or Keniston Address. With allegations flying fast and furious from Cohen – and later Kory – that Lynch was acting without due authority from Cohen, remarkably, a request to change Cohen's record address was left on Plaintiffs’ general voice mailbox by Anjani Thomas. Only later did Plaintiffs learn the identity of Ms. Thomas – Cohen’s current girlfriend, and Kory’s ex-wife. Thus, Plaintiffs demanded an original signature from Cohen on a document verifying the new address

Given Lynch’s position as manager and 99.5% owner of Traditional Holdings, and learning of the apparent schism between Lynch and Cohen, Agile Group, LLC became concerned about whose directions as to the Traditional Holdings account it was legally obligated to follow. On October 24, 2004, Agile Group, LLC communicated with Westin – Cohen's attorney who had created Traditional Holdings – and inquired: “Does Leonard in your view have equal authority over the accounts that we manage? What if there are contradicting directive on those accounts that we manage? For example if KL says 'take money out' and LC says don’t take money, what is your view . . . .” Westin confirmed that because Cohen held a membership interest in Traditional Holdings, Agile Group, LLC could share information with him about Traditional Holdings’ investments. Westin could not, however, answer the issue of conflicting directives, and instead referred Agile Group, LLC to Traditional Holdings' governing documents (drafted by Westin), which documents provided little, if any, guidance on the issue.

At or about this same time (October 22-24, 2004), Cohen phoned Greenberg. Cohen said that he thought Lynch had been taking money from Traditional Holdings without Cohen's authorization. He claimed that Lynch was using the money to support a gigolo and to fund shopping sprees at Neiman Marcus, and suggested that Lynch and Westin may have colluded to defraud him. When Greenberg reminded Cohen that Westin had warned Cohen in 2000 that "the biggest risk" from Westin's tax avoidance plan “was that Lynch would own his [the] assets and he would have lost control,” Cohen stated that he recalled that initial warning.

According to Lynch, however, Cohen regularly visited his management offices, often in Lynch’s presence, and reviewed and discussed his mail with her, all of which was kept on his desk to facilitate such review, including all correspondence, reports, and statements from the Agile Safety Fund’s independent, outside administrators, and from Plaintiffs.

Cohen then turned to his agent and attorney Kory to deal with Lynch, Westin, and Plaintiffs.

Based on these checks, Agile Group, LLC calculated that, of the loan money withdrawn from Traditional Holdings:

a. $2,084,518 had been deposited into Cohen’s own personal bank account;

b. Lynch personally had outstanding loans of approximately $293,000, which loans she represented had been disclosed to and sanctioned by Cohen;

Her abrupt termination frustrated Lynch's ability to make good on any loans through her share of receipts from the Third Sony Sale, the "Dear Heather" album, a pending sale of original lithographs, or other sources, and left her in a precarious financial position …

In November 2004, Lynch was asked by [Cohen] to appear without the benefit of counsel at a meeting with Cohen, Kory, and … Greenberg, Glusker law firm acting as legal counsel for Cohen, and to sign certain legal documents related, inter alia, to unwinding Traditional Holdings on the spot [settle with Cohen]. Lynch refused to do so without benefit of counsel, and subsequently received advice from a variety of legal, accounting and tax professionals, including but not limited to Mike Taitelman, Dale Burgess, Dianne DiMascio, and an IRS officer named Betzer, that she was wise not to sign, because such action could have been fraudulent.

[NOTE: Lynch did not receive this specific advice from IRS Agent Betzer. Lynch spoke to Agent Betzer on April 15, 2005 and thereafter about the allegations re. Leonard Cohen’s tax fraud and numerous corporate entities. Agent Betzer first advised Lynch to bring this matter into the IRS with an attorney and then later instructed her to contact the IRS fraud unit.]

Lynch claimed that she had substantial, unsatisfied interests in Cohen's business entities and/or intellectual property. If Cohen were to attempt to recover money from Lynch, she would likely assert counterclaims alleging that Cohen owes her, and has never paid, substantial amounts of money; and, according to Lynch, and upon information and belief, such possible improprieties included, but were not limited to, the retention by Blue Mist and other persons or entities of IP that should have passed through Traditional Holdings to Sony, the failure to reference or disclose the annuity obligation, loan obligations, and other important matters on Traditional Holdings’ corporate tax returns, and Cohen’s failure to properly document Traditional Holdings’ transactions.

Because any attempt to recover money from Lynch was likely to be both futile and treacherous, Cohen, Kory, and other unnamed co-conspirators (including Steve Lindsay, Betsy Superfon, and John Doe Nos. 1-25) … conspired ...

Thus, for example, although the attorneys and accountants involved in the Second Sony Sale structured and received hefty fees for that transaction, which Kory charged were excessive, Cohen and Kory decided not to pursue any of those persons because they would not be easy targets, and because many of them – principally Sony and its law firm and advisors –continued to do business with Cohen profitably. Instead, Cohen and Kory decided to go after Plaintiffs, none of whom had any role whatsoever in that Sony transaction and/or received any benefit therefrom.

[NOTE: In a Memorandum Kory provided to Lynch’s lawyers, Ira Reiner and Kevin Prins, he raised issues related to fraud in the inducement against members of the Grubman firm and Greg McBowman. Kory advised Lynch’s lawyers that they were considering going after Ken Cleveland. Kory also advised Lynch that she had a cause of action against every one of Cohen’s representatives and they would assist her with those claims if she provided testimony against Cohen’s representatives and advisers.]

He [Leonard Cohen] told Greenberg to "be a man" and contact his insurance company. “Please do talk to the insurer. A great deal of suffering can be avoided.”

Cohen with affirmative support from Kory, Steve Lindsay and Betsy Superfon, and John Doe Nos. 1-25, all acting toward a common end and each for his or her own purposes, began to direct an extortion scheme …

Cohen and Kory indicated that, unless Plaintiffs obtained insurance funds … Cohen would go out on tour to promote his new album, and would give interviews to reporters in which he would state or insinuate that he was touring because he had been bankrupted by the improprieties of his financial advisors.

Cohen and Kory knew full well that, from Plaintiffs’ perspective, once a celebrity were to raise such allegations of fraud and breach of duty against them, the damage would already be done, no matter the ultimate outcome.

Cohen and Kory began to pressure Lynch to assist in the extortion scheme against Plaintiffs. Specifically, they requested that she falsely testify … Cohen sought to obtain … testimony from Lynch knowing that the testimony would be false.

Lynch's cooperation in Cohen’s extortion scheme was critical. Cohen believed that he could not only use Lynch as a witness against Plaintiffs, but could also buy or coerce her silence as against himself at the same time.

Thus, Cohen pressed for private "mediation" as an alternative to a public lawsuit, knowing full well that with Lynch's cooperation and silence, many of the critical documents concerning Cohen's financial affairs – documents that indubitably show … his aggressive tactics to avoid taxes at all costs, and his desire to capitalize on and benefit from all of his intellectual property during his lifetime to fuel an extravagant lifestyle – would not be the subject of discovery

Thus, by deliberate misrepresentations and omissions of critical facts … Cohen could knowingly and deliberately misrepresent his objectives and sophistication as an investor, his long history of aggressive tax management, his long history of exploitation of his IP for immediate gain and profit, his profligacy …

For example, Cohen affirmatively misrepresented to Plaintiffs that Lynch had simply forged his signature on various documents, knowing full well that she had not done so, or had signed with his full authority (as borne out by his subsequent actions – such as purporting to state claims based on agreements with TAS bearing his signature, and revoking a power of attorney bearing his signature that he acknowledged executing).

Cohen likewise falsely asserted that at no time had he authorized any of the shareholder loans from Traditional Holdings, and made various accusations against Lynch for which he had no basis in fact …

As one example, he claimed never to have known, prior to November 2004, that Lynch was the majority shareholder of Traditional Holdings, thereby implying that he had been deceived by Plaintiffs and Westin. He also denied receiving information about Lynch's role as managing the obligation to pay his annuity, and denied ever receiving any information from Plaintiffs other than some monthly email summaries, even though he was easily able to retrieve Plaintiffs’ other written warnings, reports and correspondence from [Lynch’s] own Keniston office address in 2004, and was reported by Lynch to have regularly visited the office, reviewed his mail, and discussed Traditional Holdings' loans and his other accounts with her on a regular basis.

In particular, starting in March 2005, Cohen began to assert that Plaintiffs were responsible for the loss of $8 million, which figure included many millions of dollars which they knew Cohen had, in fact, received and previously spent in support of his own extravagant lifestyle.

… according to Lynch and others, he was prepared to admit or agree with Lynch that she owed Cohen nothing.

Having garnered the support of Lynch's then-attorney, Dianne DiMascio (“DiMascio”), Cohen felt

confident enough in January 2005 to misrepresent to Plaintiffs’ counsel, through Kory, that Lynch was then of the view that she, along with Cohen, was a victim of the misconduct of Plaintiffs and Westin.

Cohen and Kory continually sought to purchase or coerce Lynch’s cooperation

In a demand letter from Kory to DiMascio, Kory wrote: I want to reemphasize my position that I am willing to work with you as part of a settlement between Mr. Cohen and Ms. Lynch in going after Westin’s and Greenberg’s insurers as a source of restitution.

Thereafter, on January 11, 2005, Kory wrote to DiMascio, telling her that [Ira Reiner believed] “properly framed letters to Greenberg and to Westin would cause their insurance companies to show up.”

Lynch declined to attend the meeting in person. Instead, DiMascio went to the meeting on Lynch’s behalf in early February 2005, after which she reported to Lynch: “[Cohen and Kory] want your cooperation in pursuing [the Plaintiffs] and Richard Westin. In this regard, they seem to want you to acknowledge that you knew that Neal [Greenberg] and Richard [Westin] wanted to defraud Leonard and that you approved their conduct.”

Repeatedly, from at least November 2004 through April 2005, Kory made known

to Lynch, directly, through counsel, through Steve Lindsay (the father of Lynch’s youngest child

and one of Cohen’s record producers), through Lynch’s accountant Dale Burgess, through

accountant Mike Taitelman, and through others among her friends and relatives, that he had

extraordinary negotiating authority from Cohen to "forgive" any obligations of Lynch, to treat

them as a gift, to make additional payments to her or her family members (including disguised as

"palimony" on the pretext that Cohen is the father of one of her children), to make good on

Lynch's shares of IP rights or legal entities, or even to dedicate a hefty percentage to her of

whatever funds could be extorted from Plaintiffs and other advisors with her cooperation.

Kory tried to do this directly in late spring 2005 when he met Lynch for lunch and tried to persuade her to work with Cohen to “go after” Plaintiffs [and all of Cohen’s representatives].

Cohen and Kory also worked indirectly. For example, they recruited Lynch’s erstwhile friend and longtime “friend” of Steve Lindsay, Betsy Superfon, a person of some notoriety due, among other reasons, to her entrepreneurship in the telephone sex trade. On numerous occasions, Kory [and Cohen] used Lindsay and Superfon to try to “broker” deals with Lynch …

In one such conversation, in May 2005, Superfon, according to Lynch, called Greenberg “the kingpin” and a “criminal” and pleaded with Lynch to cooperate with Cohen for “[her] heart, [her] health, and [her] kids” and recommended that Lynch “get out of this.” Superfon promised that she could “settle this for [Lynch] immediately,” and stated that “Leonard and Kory [are] trying to get you out of this situation.”

When Lynch requested a settlement agreement in writing during a later conversation, Superfon, according to Lynch, stated that when she asked Kory to fax Lynch a settlement, Kory said “you can’t fax this kind of a deal. It has to be discussed.” [Superfon advised Lynch that she personally believed the deal they were offering was illegal.]

Through Lindsay, Superfon and other friends, relatives and acquaintances, Cohen and Kory delivered the message that giving in to Cohen’s wishes would be in Lynch’s best interest.

When these tactics to draw Lynch into his extortion scheme proved futile, Cohen and Kory – according to Lynch – turned to far more aggressive means to obtain her cooperation. Indeed, as heard by other witnesses, Cohen and Kory vowed to “crush her,” and planned to use restraining orders and other means to prevent her from serving as a credible witness regarding both Cohen's affairs and in regard to the scheme into which they had tried without success to draw her.

Consistent with that vow and plan, and according to Lynch and other witnesses, and on information and belief, Cohen and Kory's tactics to terrorize, silence, or disparage Lynch have included, inter alia, the following:

a. contacting City National Bank, where Lynch, Lynch’s son .., all had personal banking accounts, and convincing City National Bank to put a freeze on … their accounts;

b. alleging that Lynch's father and mother were depositing funds for Lynch in secret offshore bank accounts … ;

c. threatening Lynch that she would go to jail if she did not cooperate, and having her younger son's father, Steve Lindsay, who was also Cohen’s record producer, repeat these threats in the child's presence;

d. threatening to “go to child services,” encouraging Steve Lindsay to file legal action to remove Lynch’s younger (and his) son from her custody, and submitting affidavits (from Kory and Superfon) supporting that effort;

e. in a coordinated fashion with Lindsay’s child custody petition, encouraging or directing Steve Lindsay to call in a warning to the LAPD (not related to Traditional Holdings, but on some other, unknown pretext) that caused a police team to descend, guns drawn, on Lynch's home, resulting in her being handcuffed and taken involuntarily, in her bathing suit, to a hospital psychiatric ward and medicated without her consent, before being released the next day, during which time Kory attempted to persuade Lynch’s older son, Rutger, to sell Lynch’s house and provide $3 million; and

f. paying two paroled convicts to make [false] statements [about Lynch’s older son].

These and other tactics brought Lynch to the point of … financial ruin.

Cohen’s scheme to force Plaintiffs into a contrived mediation without discovery or publicity might have succeeded, had not Lynch refused to cooperate. Instead, she made the unilateral decision to provide to Plaintiffs' legal counsel a variety of documents and other information that they might not have otherwise seen … See, e.g., Facsimile Message from K. Lynch to S. Posel (March 17, 2005) (Exh. 11 attached).

Fortunately, Lynch [permitted Boies Schiller to review] not only historical files, but also the details of Cohen and Kory's illicit offers made to her through attorney DiMascio, through accountant Dale Burgess, and through other intermediaries, and shared every detail of Cohen and Kory's attempts to negotiate with or threaten her in order to obtain … testimony ...

Cohen and Kory continued to heighten their efforts to bribe or coerce Lynch into giving … testimony … without knowing that Lynch had already exposed their scheme …

Cohen and Kory alleged that Plaintiffs “proposed the sale of Cohen's ‘illiquid assets,’ including Cohen's various royalty interests,” and contended that “Cohen was convinced by [Greenberg] of the financial necessity to sell off his royalty interests during his lifetime . . . .”

Cohen and Kory alleged that Plaintiffs were liable for “actual damages of at least $8 million,” which was an amount even greater than the total proceeds of the Second Sony Sale. In fact, Cohen and Kory made this allegation with full knowledge that Cohen had already received at least $1 million in advance of the Sale closing, that the gross proceeds had been reduced by specific costs and charges, that were well over $1 million had been paid out to third parties to cover closing costs from the Sale, and that Cohen had received at least $2 million of the remainder into his own personal bank account.

Cohen reviewed the Traditional Holdings governing documents (detailing that arrangement), that he repeatedly received and understood both oral and written explanations of this very fact, and that [Lynch was not] behind the formation or structure of Traditional Holdings.

Thereafter, on June 3, 2005, Plaintiffs provided Kory, as promised, a draft complaint … with extensive documentary support … The draft complaint also revealed to Cohen and Kory, for the first time, that Lynch and others had already exposed the extortion scheme. In particular, the draft complaint demonstrated that Plaintiffs were aware of Cohen’s scheme to use economic compensation, emotional intimidation, and other forms of undue pressure to coerce Lynch to provide … testimony …

At all relevant time periods stated herein, Kory acted, at a minimum, as an agent, attorney, joint venturer, and/or co-conspirator of Cohen …

Cohen and Kory knew that the false, disparaging, and defamatory press release was not made in furtherance of any lawful objective or within the scope of the litigation commenced by Plaintiffs, and that the intended recipients were not involved in or closely connected with the litigation.

As a result of Cohen and Kory’s improper and unlawful conduct, the false, disparaging and defamatory press release was immediately published on, inter alia, the following interactive and other websites:

(a) www.leonardcohen.com (the official Leonard Cohen website, which has a link to the chat room for the Leonard Cohen files, where the statement was published);

(b) http://www.cmumusicnetwork.co.uk/daily/050616.html (states that “Kory told CMU” and then quotes the Cohen and Kory press release);

(c) http://xrrf.blogspot.com/2005/06 leonard-cohen-mr.-big.html (referencing the quoted statement as “released by Leonard Cohen’s lawyer” and referring to it as the “Attorney Robert Kory Statement”);

(d) http://blogs.theage.com.au/malcontent/archives/2005/06/leonard_cohen_s.html (also referencing the quoted statement as “released by Leonard Cohen’s lawyer” and referring to it as the “Attorney Robert Kory Statement”; also later reported by MalContent to have been “emailed by

an industry rep to MalContent”); and

Leonard Cohen sued by investment company, alleging civil conspiracy, extortion

June 2005

Musician and legend Leonard Cohen is being sued by a Colorado investment company Agile Group, which alleges Cohen and another person threatened to irreparably damage Agile's reputation in order to extort millions of dollars from Agile and its insurer. The case is related to claim by Cohen that Agile bears responsibility for the alleged misappropriation of Cohen's invested funds by Cohen's former manager. Read it here.

Don's ask me why, but Cohen's classic, Everbody Knows comes to mind.

A statement released by Leonard Cohen's lawyer points to the truth of this sad state of affairs:

ATTORNEY ROBERT KORY STATEMENT
IN RESPONSE TO AGILE GROUP SUIT
INVOLVING LEONARD COHEN

"The suit filed by the Agile Group Monday, June 6, 2005 is completely
consistent with Agile's reckless disregard for its client and his
investments.

We had hoped to reach an out-of-court settlement with Agile that
returned to Mr. Cohen some portion of the retirement money the firm was
authorized to administer on his behalf. Instead, in the middle of
negotiations to determine Agile's responsibilities to Mr. Cohen to
compensate him for money lost under their management, Agile launched a
surprise attack in an effort to besmirch the reputation of one of its
notable clients.

Agile repeatedly failed to alert Mr. Cohen to true account balances
while allowing improper and unauthorized withdrawals by Cohen's former
business manager. In doing so Agile failed to protect Mr. Cohen's
interests and retirement savings and knowingly misled him by providing
inaccurate financial reports.

We will of course file a counter suit that lays out in detail how Agile
acted in a reckless way that violated the firm's fiduciary
responsibilities towards Cohen and consequently resulted in the loss of
Mr. Cohen's retirement savings."

· Posted by: Adrian du Plessis at June 14, 2005 08:07 PM

(e) http://bcbr.datajoe.com/app/ecom/pub_print_article.php?id=58402 (the website for the Boulder County Business Report, published in Colorado, which references Kory’s posting of the statement on Cohen’s website, and re-publishes the statement).

181. In addition, Cohen made false, disparaging, and defamatory statements and republished

false, disparaging and defamatory e-mails to a reporter for an industry publication known as MacLeans, knowing that the statements would be immediately published by MacLeans to the general public via the internet and other print publications. The MacLeans article, published via the internet on August 17, 2005. SEE ATTACHED. [Excerpt: Cohen wrote (Greenberg) in November 2004 … “Face up to it, Neal,” the email continues, “and square your shoulders: You were the trusted guardian of my assets, and you let them slip away . . . Restore what you lost, and sleep well.” In his sign-off, Cohen delivered as much a piece of advice as his own philosophy: “Put this behind you and it will dissolve.”]

The wrongful conduct described herein was attended by circumstances of fraud, malice, willful and wanton behavior, and bad faith.

Consistent with their prior threats, Cohen and Kory have knowingly published or caused to be published false information concerning [Lynch and possibly others] in the public domain …

The false, disparaging, and defamatory press release and other statements are not protected by any statutory or common law privilege because the statements were not made in furtherance of any objective of litigation, either lawful or otherwise, and because the intended and actual recipients of the statements were not involved in or closely connected with the litigation.

The … statements, and other defamatory statements, were communicated to and understood by third parties to be defamatory, and have harmed [Lynch and possibly others] reputation in the community.

Cohen and other co-conspirators not currently named as Defendants herein (including Robert Kory, Steve Lindsay and Betsy Superfon) committed one or more unlawful acts in furtherance of these common goals and objectives.

The unlawful goals and objectives of the conspiracy included inter alia the following: (a) The extortion and/or attempted extortion of money or property from Plaintiffs and their insurers [and others, including Lynch] in Colorado [and elsewhere] to recover alleged losses sustained by Cohen as the result of his own exorbitant spending habits, his own neglect and mismanagement of his financial, legal and personal affairs … The making of substantial threats, that were reasonably likely to induce [Lynch and possibly others] that the threats would be carried out, and would cause

significant economic hardship or damage to the reputation [of Lynch and possibly others] with the intent to induce [certain parties] to perform acts against their will; The offering of benefits [to properly compensate Lynch with respect to her ownership interest in numerous corporate entities; for services rendered; and so forth] to a witness and/or members of the witness’ family with the intent to influence the witness to testify falsely or unlawfully withhold truthful testimony; The use of threats, acts of harassment, or acts of harm or injury to persons [including Kelley Lynch] or property, directed to or committed upon a witness and/or members of the witness’ family to intentionally attempt and/or actually influence the witness to testify falsely or unlawfully withhold truthful testimony; The intentional attempt to induce a witness to testify falsely or unlawfully

withhold truthful testimony; The generation and dissemination of a false, disparaging and defamatory press release and other similar statements to third persons with the knowledge, intent, and directive that such statements be disseminated by media publication and the internet throughout [the world].

Cohen’s conduct described herein was attended by circumstances of fraud, malice, and willful and wanton behavior.

Cohen and the other co-conspirators not currently named as Defendants herein (including Robert Kory, Steve Lindsay and Betsy Superfon) knowingly conducted or participated, directly or indirectly, in such enterprise through a “pattern of racketeering activity” … The acts of racketeering activity which Cohen and the unnamed co-conspirators, and the enterprise committed, attempted to commit, conspired to commit, solicited, coerced or intimidated others to commit included, inter alia: (a) Mail fraud; (b) Wire fraud; (c) Interference with commerce by threats; (d) Criminal extortion; (e) Bribing a witness; (f) Intimidating a witness; (g) Tampering with a witness. [The witness is Kelley Lynch]

The predicate acts described herein formed a pattern of racketeering activity, were related to the conduct of the enterprise, and were related to each other as part of the common plan …

Cohen and his agents and attorneys have engaged, and are continuing to engage, in a continuous and relentless pattern of malicious and unwarranted conduct, as described more fully herein [and in Lynch’s legal documents in various related matters and elsewhere].

Judge Babcock’s December 5, 2005 order dismissing Robert Kory from this case [due to lack of personal jurisdiction] contains the following statements. The tactics and purported thuggery Judge Babcock refers to are ongoing and ineffective: They tried to compel Ms. Lynch to participate in their project by, among other tactics, having her arrested on false pretenses and initiating proceedings to deprive her of her children. The Amended Complaint does not indicate that this purported thuggery was effective.”

RE: JUDGE LEWIS BABCOCK’S ORDER

Only the above allegations or statements in Neal Greenberg’s Amended Complaint are factual.

UNITED STATES DISTRICT COURT, D. COLORADO.

GREENBERG ASSOCIATES. INC. v. COHEN

(D. Colo. Dec 05, 2005)

Decided December 5, 2005

GREENBERG ASSOCIATES. INC., d/b/a Agile Advisors, Inc. a Delaware corporation, TACTICAL ALLOCATION SERVICES, LLC, d/b/a Agile Allocation Services, LLC, a Delaware limited liability company, AGILE GROUP, LLC, a Delaware limited liability company, GREENBERG ASSOCIATES SECURITIES, INC., d/b/a Agile Group, a Delaware corporation, and NEAL R. GREENBERG, a Colorado resident, Plaintiffs, v. LEONARD COHEN, a Canadian citizen residing in California, ROBERT KORY, a United States citizen residing in California, KELLEY LYNCH, a United States citizen residing in California, and JOHN DOE, Numbers 1-25, Defendants.

Civil Case No. 05-cv-01233-LTB-MJW.

United States District Court, D. Colorado.

December 5, 2005

ORDER

LEWIS BABCOCK, Chief Judge

The defendant Robert Kory moves for dismissal of all claims against him on the alternate grounds that I have no personal jurisdiction over him, Fed.R.Civ.P. 12(b)(2), and that the plaintiffs have failed to state a claim against him, Fed.R.Civ.P. 12(b)(6). The motion is adequately briefed and oral arguments would not materially aid its resolution. For the reasons stated below, I find and conclude that I have no personal jurisdiction over Mr. Kory and I GRANT the motion pursuant to Rule 12(b)(2).

Because Mr. Kory has contested the Court's jurisdiction, the plaintiffs have "the burden of proving jurisdiction exists." Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995). *22 "Where, as in the present case, there has been no evidentiary hearing, and the motion to dismiss for lack of jurisdiction is decided on the basis of affidavits and other written material, the plaintiff need only make a prima facie showing that jurisdiction exists." Id.

In resolving factual questions:

The allegations in the complaint must be taken as true to the extent they are uncontroverted by the defendant's affidavits. If the parties present conflicting affidavits, all factual disputes must be resolved in the plaintiff's favor, and the plaintiff's prima facie showing is sufficient notwithstanding the contrary presentation by the moving party. However, only the well-pled facts of plaintiff's complaint, as distinguished from mere conclusory allegations, must be accepted as true.

Id. (citations omitted).

I. Allegations The allegations of the Amended Complaint are substantially the following. In 1997, the defendant Leonard Cohen, a resident of California, retained the plaintiffs, directed by the plaintiff Neal Greenberg and headquartered in Boulder, Colorado, to create for him charitable trusts and to manage the assets placed into those trusts. (Throughout the Amended Complaint and their briefs, the plaintiffs refer to themselves individually and in the aggregate as "Greenberg." They do not reveal the nature of their relationships to each other. I have attempted to be as precise as the pleadings and the record will allow.) Mr. Cohen allegedly drew extravagant sums from the trusts, depleting the principal amounts and impeding the plaintiffs' efforts successfully to invest the funds in profitable ventures. The defendant Kelley Lynch, Mr. Cohen's manager, oversaw and had power of attorney over, all of Mr. Cohen's financial dealings. Mr. Greenberg allegedly repeatedly warned Ms. Lynch and Mr. Cohen that Mr. Cohen was spending too much and that, absent a change of habit, he would become destitute. *33 In October, 2004, Mr. Cohen and Ms. Lynch allegedly parted ways and began to issue competing directives to the plaintiffs. They each blamed the other for Mr. Cohen's financial distress. Mr. Cohen claimed that Ms. Lynch had deprived him of substantial sums of money. Thereafter, Mr. Cohen and Mr. Kory, Mr. Cohen's personal attorney and a California resident, allegedly conspired to extort the lost sums from the plaintiffs by tarnishing the plaintiffs' reputation, asserting spurious claims, and coercing a settlement from the plaintiffs' insurance carrier. This they intended to accomplish by using Mr. Cohen's fame as a prominent recording artist to publish defamatory statements about the plaintiffs to the press. They tried to compel Ms. Lynch to participate in their project by, among other tactics, having her arrested on false pretenses and initiating proceedings to deprive her of her children. The Amended Complaint does not indicate that this purported thuggery was effective.

Mr. Kory sent an allegedly defamatory demand letter to Mr. Greenberg's attorney, wrongly accusing the plaintiffs of fraud and various breaches of fiduciary duty. After the plaintiffs filed this lawsuit, Messrs. Cohen and Kory allegedly published defamatory statements on Mr. Cohen's web site, blaming the plaintiffs for the lost monies, asserting that the plaintiffs had wrongfully permitted Ms. Lynch to withdraw unauthorized sums, and asserting that the plaintiffs had provided Mr. Cohen with fraudulent accounting records. Mr. Cohen and Ms. Lynch now dispute entitlement to the funds remaining in the trusts. Each seeks immediate acquisition of the funds.

Mr. Kory allegedly submitted to the jurisdiction of this Court by his purposeful and repeated written and telephonic communications with the plaintiffs and his direction of Mr. Greenberg's activities, performed in Colorado. Additionally, Mr. Kory allegedly reserved a *44 conference room at the Denver International Airport and scheduled a meeting, which he, Mr. Greenberg, Mr. Cohen, and Mr. Greenberg's counsel were to attend. Messrs. Kory and Cohen allegedly failed to appear for the meeting, which Mr. Greenberg attended.

II. The record

A. Kory affidavit

Mr. Kory has provided two affidavits replete with refutations of the plaintiffs' jurisdictional allegations. He is licensed to practice law in California, where he resides and has his law practice. He last traveled to Colorado in 1985 or 1986 for a ski vacation. He has no business or property interests in Colorado.

In the fall of 2004, Mr. Cohen retained Mr. Kory to investigate suspected losses from an entity denominated Traditional Holdings, LLC ("Traditional"), which the plaintiff, Tactical Allocation Services, LLC ("Tactical") managed for Mr. Cohen under Mr. Greenberg's direction. In the ensuing weeks, Mr. Kory contacted Tactical's Boulder, Colorado office on two or three occasions. Tactical responded by sending information about Mr. Cohen's accounts to Mr. Kory in California. Thereafter, Mr. Kory communicated predominantly with Tactical's legal counsel, Sherab Posel, whom Mr. Kory believed to be resident in New York. Though he engaged in at least one email exchange with representatives of Tactical located in Boulder, Mr. Kory communicated Mr. Cohen's asserted legal claims against Tactical and related requests for information to Mr. Posel, who responded on letterhead imprinted with New York addresses.

In April, 2005, Mr. Kory and Mr. Posel scheduled a mediation for June 5, 2005, which was to occur in Colorado. Mr. Kory reserved a conference room at a hotel near the Denver airport in anticipation of that meeting. After Mr. Posel disputed the veracity of Mr. Cohen's *55 claims and threatened litigation, Mr. Kory cancelled the room reservation in Colorado and remained in California.

B. Barnett affidavit

Timothy Barnett, Tactical's Vice President who works in Boulder, has produced correspondence — emails and letters — between Mr. Kory and representatives of the plaintiffs in Colorado and New York. Numerous emails and letters between Mr. Kory and Mr. Barnett throughout the period beginning in November, 2004 and ending in June, 2005 addressed Mr. Kory's requests for information about the accounts that Tactical managed for Mr. Cohen and Tactical's efforts to comply with those requests. Contrary to Mr. Kory's assertion, these communications number in the dozens. Many of the communications indicate that copies were sent to Mr. Greenberg and Mr. Posel, among others. Emails exchanged on December 15 and 16, 2004 detailed plans for a conference call involving Messrs. Kory, Barnett, and Posel. The three set up another conference call in March, 2005. Other emails reference telephone calls between Mr. Kory and Mr. Barnett and calls and conversations between Mr. Kory and Mr. Posel.

In an April 10, 2005, twenty-seven page demand letter to Mr. Posel, Mr. Kory asserted claims against "the Agile Group, Neal Greenberg and his partners" on Mr. Cohen's behalf. Mr. Kory made repeated references to the "several telephone conversations and e-mails regarding" the claims that he and Mr. Posel had previously exchanged. He invited a further response from Mr. Posel. Thereafter, Mr. Kory and Mr. Barnett exchanged emails only discussing the scheduling of a mediation meeting for June 5, 2005. Mr. Posel and Mr. Kory continued to communicate in writing about Mr. Cohen's allegations. On June 4, 2005, Mr. Kory wrote to Mr. Posel by email cancelling the mediation, but making no reference to the lawsuit that the plaintiffs had purportedly *66threatened. In a June 9, 2005 email, Mr. Kory expressed surprise at the contents of a draft complaint that Mr. Posel had sent him the day before.

By letter on June 2, 2005, Mr. Kory sent to Mr. Barnett two checks for deposit in Mr. Cohen's accounts. On June 7, Mr. Barnett responded in writing, noting that Mr. Cohen had terminated his relationship with the plaintiffs.

III. Discussion

"To obtain personal jurisdiction over a nonresident defendant in a diversity action, a plaintiff must show that jurisdiction is legitimate under the laws of the forum state and that the exercise of jurisdiction does not offend the due process clause of the Fourteenth Amendment." Far West Capital, Inc. v. Towne,46 F.3d 1071, 1074 (10th Cir. 1995). Because, as set forth below, I conclude that the Colorado long-arm statute does not reach Mr. Kory, I need not consider the constitutional question. The plaintiffs argue that Mr. Kory has submitted to jurisdiction in Colorado by the "commission of a tortious act within this state." Colo. Rev. Stat. § 13-1-124(1)(b). Colorado courts have held that the tort provision of the long-arm statute may be satisfied either 1) when tortious conduct occurs in Colorado, or 2) when tortious conduct initiated in another state causes injury in Colorado. Wenz, 55 F.3d at 1507; Classic Auto Sales, Inc. v. Schocket, 832 P.2d 233, 235-236 (Colo. 1992).

The plaintiffs first argue that Mr. Kory committed tortious conduct in Colorado. Directing into Colorado communications by which a tort is committed constitutes conduct sufficient to satisfy the statute if the tort is completed by the plaintiff's receipt in Colorado of the communications. Id. at 236; Broadview Financial, Inc. v. Entech Management Services Corp., *77859 F. Supp. 444, 448 (D. Colo. 1994). However, merely communicating with a person resident in Colorado is, in itself, insufficient to bring a defendant within the reach of the Colorado statute. Archangel Diamond Corp. v. Lukoil, ___ P.3d ___, 2005 WL 3097588 (Colo. 2005).

Mr. Kory's several communications with Mr. Barnett concerned Mr. Kory's attempts to elicit information from Mr. Barnett that would prove useful to Mr. Cohen. Though the plaintiffs feel that Mr. Kory solicited their cooperation in bad faith — Mr. Kory used much of the information the plaintiffs provided to construct claims against them, even as he repeatedly commended them for their diligence — the gravamen of their claims against Mr. Kory is that he conspired to defame them and to extort money from them by asserting frivolous claims. Mr. Kory directed to Mr. Posel in New York, and not to Mr. Barnett in Colorado, the communications by which he allegedly accomplished those torts. The plaintiffs have not argued — nor does it appear from the record — that the exchange of information and documents between Mr. Kory and Mr. Barnett was tortious. Nor could the plaintiffs premise liability on Mr. Kory's later-reneged reservation of a conference room in Colorado. I am left to determine whether the plaintiffs have suffered an injury in Colorado as a result of Mr. Kory's allegedly tortious acts. Wenz,55 F.3d at 1507. Tortious-activity jurisdiction obtains under the statute when "the injury itself" occurs in Colorado. McAvoy v. District Court, 757 P.2d 633, 635 (Colo. 1988).

Further, the injury in the forum state must be direct, not consequential or remote, and loss of profits in the state of plaintiff's domicile is insufficient to sustain long-arm jurisdiction over a nonresident defendant. Hence, when both the tortious conduct and the injury occur in another state, the fact that plaintiff resides in Colorado and experiences some economic consequences here is insufficient to confer jurisdiction on a Colorado court. Amax Potash Corp. v. Trans-Resources, Inc., 817 P.2d 598, 600 (Colo.Ct.App. 1991) (citations *88 omitted).

The plaintiffs argue that Mr. Kory directed the injurious consequences of his wrongful activity toward Colorado because they, who have an office here, were the intended recipients of the harm. They cite D D Fuller CATV Const., Inc. v. Pace,780 P.2d 520(Colo. 1989) for the proposition that Mr. Kory could, therefore, have reasonably anticipated being haled into court in Colorado. However, they have not addressed the prior question where the injury occurred. Nothing in the record, Mr. Barnett's correspondence from Colorado included, appears to demonstrate that the plaintiffs suffered an injury in Colorado. Indeed, the only business the plaintiffs are alleged to have lost was transacted with Mr. Cohen, who resides in California. Accordingly, it is ORDERED that

1) Robert Kory's motion to dismiss pursuant to Fed.R.Civ.P.12(b)(2) [13] is GRANTED; and

2) the plaintiffs' claims against Mr. Kory are dismissed.

EXHIBIT

MACLEAN’S ARTICLE

August 17, 2005

A 'devastated' Leonard Cohen

The Canadian music icon is broke and the lawsuits are flying. It's a sordid tale involving allegations of extortion, SWAT teams, forcible confinement, tax troubles and betrayal.

KATHERINE MACKLEM

I said there's been a flood
I said there's nothing left
-- Leonard Cohen, from The Letters, on his album Dear Heather

Take an iconic artist, mix in missing millions, hints of tantric sex, a lawsuit replete with other salacious details, and a ruptured relationship with a long-time, trusted associate, and you've got the makings of a Hollywood blockbuster. Except in the case of Leonard Cohen, it's a true tale, with the bizarre twist of a Tibetan Buddhist suing a Zen Buddhist, Cohen. For the 70-year-old poet, singer and songwriter, it's a nasty, rapidly escalating legal battle that on the one hand accuses him of conspiracy and extortion, and on the other has him accusing both his highly trusted personal manager and long-time financial adviser -- the Tibetan Buddhist -- of gross mismanagement of his financial affairs. The case exposes not only private details of Cohen's finances, but also a dramatic tale of betrayal.

The conflict, which Cohen and others have tried to keep out of public view, has left him virtually broke -- he's had to take out a mortgage on his house to pay legal costs -- and facing a multi-million-dollar tax bill. But the artist, who is soon to release a new album with his collaborator -- and current girlfriend -- Anjani Thomas, is today remarkably calm about the potentially embarrassing conflict. Still, when he discovered last fall that his retirement funds, which he had thought amounted to more than $5 million (all figures U.S.), had been reduced to $150,000, he wasn't so sanguine. "I was devastated," Cohen says. "You know, God gave me a strong inner core, so I wasn't shattered. But I was deeply concerned."

So far, only one formal court filing involving Cohen has been made. In June, Boulder, Colo.-based Neal Greenberg, Cohen's investment adviser of almost a decade, launched a hyperbole-laden claim in Colorado against Cohen, who lives in both Los Angeles and Montreal. The suit accuses Kelley Lynch, who was Cohen's manager and is also named in the suit, of siphoning money from the songwriter. It also accuses Cohen and his lawyer Robert Kory of conspiracy, extortion and defamation. It alleges the two, in an attempt to recover at least some of Cohen's lost money, threatened to besmirch Greenberg's reputation and concocted a plan to force Greenberg to give Cohen millions of dollars.

The suit paints an almost preposterous picture of Cohen as an artist who led a lavish celebrity lifestyle and then turned bitter and vindictive when he discovered the money had run out. For example, the suit quotes Lynch describing how Cohen demanded she discuss business matters while he soaked in a bubble bath, and how later he was somehow involved in calling a SWAT team to her home, where she was handcuffed and forcibly taken to a psychiatric ward while in her bathing suit.

None of the allegations have been proven in court. Cohen is expected to file a countersuit this week. More lawsuits are likely to join the fray. And Lynch, who has sent turgid, raw and wrathful emails hither and yon, is threatening to sue just about everyone.

The conflict was triggered last fall when Cohen was tipped off by an insider that a lot of money was missing from his accounts. All that remained of his retirement savings was the $150,000, funds that today he can't get at as a result of the tangled legal web he finds himself in. Greenberg's suit portrays the soulful songwriter as an artist who paid little attention to his financial affairs and so was easily duped by a conniving personal manager. Cohen says he tried quietly, and confidentially, to find out from his various managers where the money had gone. Cohen calls the case "a tragedy," suggesting he was exploited by trusted advisers. He uses words like "greed, concealment, and reckless disregard," and says firmly he did nothing wrong. "I can assure you, within reason, I took every precaution except to question the fidelity of my closest associates."

Untoil Cohen fired her last fall, Kelley Lynch had been his personal manager for almost 17 years. Back in 1988, she'd been working as an assistant to his then-manager, who died that year. Because she was knowledgeable about Cohen's business affairs and recording contracts, he had her take over. Over the years, the two developed a personal and professional relationship. Fifteen years ago, they had a brief affair. "It was a casual sexual arrangement. It was mutually enjoyed and terminated," he says. "I never spent the night." The end of the affair didn't affect their bond. "We were very, very close friends," Cohen says today. "I liked her immensely. Our families were close -- she was helpful when I was raising my daughter; I employed her father." He even named her in his living will, giving her the power to decide, in certain circumstances, if he would live or die. He handed her vast powers of attorney. He trusted her implicitly. And he believed the relationship was mutual. "She wrote dozens of emails to me, thanking me for my help. We used to correspond regularly, relentlessly." He says that in 2004, while he was recording his most recent album, Dear Heather, with a small team at his home-recording studio, Lynch would come by almost daily. "People were very tight. Kelley was taking care of business, I was producing the album. It was all taking place in this little duplex and the garage that was converted into a studio. Kelley would come over, and I would generally prepare lunch for everyone."

The cosy arrangement was shattered one day last October when a young man, the boyfriend of a casual employee of Lynch, spoke to Cohen's daughter, Lorca, who owns an art deco furniture store and who lives downstairs from her father in the L.A. duplex he owns. "Your father really ought to look into his accounts, because he might be surprised at what he finds," he said. Lorca told him that her father trusted everyone involved and that besides, "he's about to retire, anyway." As Cohen senior tells the story, the young man replied, "He won't be able to retire."

Alarmed, Lorca called her father, who was in Montreal. Within a couple of days, he returned to Los Angeles and immediately went to his bank. There he discovered, as he puts it, "improprieties." Lynch had linked her American Express bill directly to his personal chequing account, he says, and just days before his visit to the bank, he'd paid a $75,000 Amex bill on her behalf. He never learned what purchases the card had been used for, but says the credit card company reimbursed him. Cohen immediately removed Lynch's signing powers on the accounts. The next day, Cohen told Lynch she no longer had access to the bank accounts and he fired her. That afternoon, Cohen says the bank notified him that Lynch went to a different branch and attempted to withdraw $40,000 from one of his accounts. He then called a lawyer and brought in a forensic accounting firm, Moss-Adams, which, in an investigation of all of Cohen's holdings, discovered "massive improprieties." In all, the accountants discovered about $8.4 million had over time disappeared from his holdings, Cohen says. His retirement funds had been virtually depleted.

Neal Greenberg, a banker with a thriving investment firm, had been brought in by Lynch to manage Cohen's money in 1996, two years after Cohen went up Mount Baldy to study to be a Rinzai Zen Buddhist monk. But now, he was worried. Over two decades, Greenberg had built a successful company, the Agile Group, and managed more than half-a-billion dollars of other people's money. He enjoyed, as he says in his suit, a "spotless professional reputation." And suddenly, here was Leonard Cohen, not just a prized client but one with a high profile, suggesting that Greenberg was party to the disappearance of Cohen's retirement savings.

Over the years, he says, he warned Cohen that his funds were being rapidly depleted, but it seemed the artist paid no heed. And now, Cohen and his lawyer, Kory, claims the Greenberg suit, were threatening "that Cohen would go out on tour to promote his new album and give interviews to reporters in which he would insinuate that he was touring because he had been bankrupted by improprieties by Greenberg and other financial advisers." Greenberg must have envisioned his business and his career in absolute tatters. He sued.

Greenberg's lawsuit lays out the business background to the dispute. Cohen's success as a singer and songwriter generated millions in royalties, the suit says, and in the 1990s, Lynch, as Cohen's trusted personal manager, began to investigate auctioning his intellectual properties, including copyrights to his song catalogue and continuing royalties for his songs. Lynch, along with a tax consultant named Richard Westin, arranged two deals for Cohen's properties. The transactions were eventually completed, one in 1997, the other in 2001, with Sony Music. From the first sale, about $5 million was transferred to trusts that Greenberg had been enlisted to manage and that would protect Cohen from an upfront tax hit. Greenberg says he invested the proceeds wisely, making lots of money for the trusts. But Greenberg also claims that Cohen's "consistent and prolific spending" to support "his extravagant 'celebrity' lifestyle" eroded the gains he had made on his client's behalf.

The second sale of Cohen's intellectual property, in 2001, was for $8 million. With Westin, Lynch put that money into a newly formed company named Traditional Holdings LLC that also was intended to shield Cohen's earnings from a major tax hit. Lynch was named as owner of 99.5 per cent of the company, leaving Cohen holding just 0.5 per cent. Greenberg alleges that Cohen, well aware of the structure and its dangers, signed off on it. Westin had explained to Cohen, the suit says, that "the plan would only work if Cohen and Lynch maintained (as they had in the past) a long-term relationship of personal and professional trust." Traditional Holdings could also issue loans to its owners, Lynch and Cohen.

As soon as the new company was in place, "Greenberg was immediately alarmed by Cohen's desire and tendency to treat this company [Traditional Holdings] like his personal piggy bank," the lawsuit alleges. It goes on to claim Cohen took a $1-million advance on the second sale of assets to Sony, Lynch took a commission of $1.1 million, and fees for lawyers and accountants ate up another $714,000. And then, over the next few years, Lynch regularly borrowed money from the Traditional Holdings account in amounts of tens of thousands of dollars, sometimes for herself, sometimes acting for Cohen. The lawsuit claims that while Greenberg sent a monthly email statement to Cohen, it was always Lynch who told Greenberg to release the loans.

The Greenberg suit claims Lynch, always acting as Cohen's agent, told Greenberg what to do regarding the funds. For instance, Lynch instructed Greenberg to send Cohen the monthly email status reports, but Greenberg says she directed him to leave out day-to-day activities and the status of Traditional Holdings loans. Because the loans were to be repaid, Greenberg included them in the statements as assets, which meant that it appeared as though nothing had been taken out.

Greenberg, who declined to comment for this article, claims in his suit he repeatedly stressed to Cohen that his spending was seriously draining his investments. In one warning letter, Greenberg told Cohen that Traditional Holdings had only $2.1 million left. Considering how quickly the money was leaving the account, Greenberg wrote, "I think you should consider your situation quite desperate." It's not clear if Cohen ever received this letter. On this, Cohen and Greenberg agree: they say many of Greenberg's attempted communications with Cohen were intercepted by Lynch.

On other points, Cohen disagrees. He was vitally interested in his financial affairs, he says. "It wasn't that I wasn't involved -- on the contrary, I took great pains to pay these professionals well and to solicit their advice and to follow it," he insists. "And, I was receiving a report every month from Neal Greenberg indicating that my retirement savings were safe." Cohen insists he was not made aware that Lynch had been named the majority owner of Traditional Holdings; instead, he says that in an early description of the company's structure, he had been told that his two children, Lorca and Adam, would be its principal owners. He says he was shocked to learn that Lynch had almost complete ownership. The mistake Cohen admits to is that "I paid close attention to everything except the possibility that my closest associate would embrace any irregularities in the discharge of her duties."

Cohen also says he learned only recently that the two sales of his intellectual property to Sony were unnecessary. He understands now that those properties earned roughly $400,000 a year, before taxes. That was plenty for him to support what he calls his modest lifestyle. Cohen accuses Lynch of creating the deals in order to boost her own income. He paid her 15 per cent of his income, which generally earned her $90,000 a year, he says. With the sales of his intellectual property bringing in revenue in the millions, it boosted her income to seven figures.

Greenberg's lawsuit becomes more disturbing as it describes what happened after Cohen realized he'd lost millions of dollars. Greenberg says Cohen pressured him to go after his firm's insurance company for the money to repay him. "Be a man," Cohen told Greenberg, the suit says. By threatening his reputation, it appeared to Greenberg that Cohen, on Kory's advice, had decided to target Greenberg's and his insurance company's deep pockets. Then, alleges the lawsuit, Cohen and Kory began to pressure Lynch to join them in "their extortion scheme." From November 2004 to April 2005, the lawsuit says, Kory repeatedly let Lynch know, sometimes directly, sometimes through friends or other intermediaries, that Cohen was ready to "forgive" Lynch's obligations to him, and that she in fact could receive a hefty cut of "whatever funds could be extorted from Greenberg and other advisers with her co-operation."

Greenberg's suit alleges that when Lynch refused to participate, Kory and Cohen vowed to "crush her." It goes on to say their "tactics to terrorize, silence, or disparage Lynch" included threatening her that she would go to jail, and "paying two paroled convicts to make statements that they had observed Lynch's older son brandishing a gun and threatening to kill someone."

Lynch's response, to all of this has been bitter, scattered and in some cases difficult to comprehend. In a rambling exchange of emails with Maclean's last week, she denied any wrongdoing. She also declined to discuss the Agile Group's lawsuit, describing it as "bogus" and "slanderous," while promising to file her own complaints against Cohen and other principal players in the case. She added her phone had been disconnected because she lacked money to pay the bills.

In the meantime, she's been showering Cohen and others with invective-laden emails that alternately voice misery and hurl accusations at friends and former colleagues. Many of these lament losing custody of her 12-year-old son, Ray, to his father, music producer Steve Lindsay. A few devolve into the outrightly bizarre. One missive, sent July 17 and obtained by Maclean's, invites Greenberg in highly explicit terms to Lynch's home for an evening of tantric sex. "First I want to study the inner channels with you," it says. "Why not -- let's see who is better at tantric sex -- you or me."

So troubling have the messages become that several people who know Lynch fear she's become unhinged. "I'm afraid she's suicidal," says Lindsay, her ex-husband, adding that in his judgment she's been acting erratically for the better part of a year. Cohen too sent Lynch a message last fall spelling out his concern in verse: You can't tell the difference between a threat / and a helping hand, he wrote. You can't tell the difference between a threat / and a solemn warning / from one of the few people / who still cares about you and your family.

Lynch's apparent troubles have had punishing legal consequences. Lindsay has obtained a temporary restraining order that prevents her from visiting her son. Tara Cooper, a former employee of a greeting card company Lynch started while still in Cohen's employ, has taken out a similar order after alleging that Lynch sent threatening emails and harassed her by phone. And two of her creditors -- upscale department stores Neiman Marcus and Bergdorf Goodman -- have filed collections claims against her in Los Angeles Superior Court.

This is the mess that Leonard Cohen -- a man many believe floats a few inches above the ground -- finds himself in. These days, he's Zen-like. In the course of a long interview by phone from his home in Los Angeles, the man sometimes called the poet laureate of pessimism sounded almost bemused. "What can I do?" he asks. "I had to go to work. I have no money left. I'm not saying it's bad; I have enough of an understanding of the way the world works to understand that these things happen."

His first choice of action when he learned his money was gone, he says, was to not do anything. Aware of how painful litigation could be, he says he wanted no part of it. "I said, 'I can walk away with nothing.' I said, 'Let me start again. Let me start fresh at 70. I can cobble together a little nest egg again.' " But he ran into a glaring, immediate problem: had he done nothing, he would have legally been responsible for the funds that had gone missing. And on that money, he'd owe millions in taxes, a sum he no longer had.

His next step, "his second-best choice," was to negotiate with his advisers about the missing money. He approached Lynch, asking her to open her books. "She resolutely and unconditionally refused to open her books to any scrutiny whatsoever and instead began a bizarre email campaign to discredit me in some kind of way, which has gone all over the place," Cohen says, adding that he's launching a lawsuit this week with great reluctance. "I don't want anybody hurt. It's not my nature to pursue and to contend with people that way." Cohen says all he wants is to find out where the money went. "I'm not accusing her of theft," he says of Lynch. Still, his countersuit will likely describe how money was removed from his accounts.

Cohen appears to have been blindsided by Greenberg's lawsuit. He insists that he and Kory were in the midst of mediation with Greenberg when the financial adviser's lawsuit was suddenly and unexpectedly filed. He says the mediation had been confidential, at Greenberg's urging, as he feared for his reputation. In an email to Greenberg, Cohen urges him to make good. "Dear Neal, I believed in you. I depended on you," Cohen wrote in November 2004. "When things went wrong, does it make any sense that you would make your warnings available to the only person in the cosmos who had an interest in deceiving me? A single, simple email informing me that my accounts were being emptied would have been enough. I answered EVERY SINGLE EMAIL you ever sent me. Fortunately, I have them all.

"Face up to it, Neal," the email continues, "and square your shoulders: You were the trusted guardian of my assets, and you let them slip away . . . Restore what you lost, and sleep well." In his sign-off, Cohen delivered as much a piece of advice as his own philosophy: "Put this behind you and it will dissolve." There's an irony here, that a man who has struggled much of his life to distance himself from the material world now, at 70, finds himself in an intense battle with it. Still, he's not defeated. "This has propelled us into incessant work," he says of himself and Thomas. He exudes optimism about their new CD. "It's one of the best albums I've heard." It's not closing time quite yet.

With CHARLIE GILLIS and BRIAN D. JOHNSON

http://www.leonardcohenforum.com/viewtopic.php?t=4283

On Tue, Oct 28, 2014 at 2:22 PM, Kelley Lynch <kelley.lynch.2010@gmail.com> wrote:

Norman Posel,

Just confirming your email (Boies Schiller) advising me to explain an attorney that Boies Schiller the evidence, understood Cohen owed me millions, and advised me to find a lawyer and explain to him that he could help me "take down" another Hollywood fraud. Obviously you meant legally. LAPD notes in their report that I said "legally." This man will say anything. The evidence concealed from jurors is extraordinary.

Kelley Lynch

On Tue, Oct 28, 2014 at 2:17 PM, Kelley Lynch <kelley.lynch.2010@gmail.com> wrote:

IRS, FBI, DOJ, and FTB,

I previously mocked up the appellate brief with some of my comments and corrections.

Kelley

IN THE APPELLATE DEPARTMENT OF THE

SUPERIOR COURT, COUNTY OF LOS ANGELES

STATE OF CALIFORNIA

THE PEOPLE OF THE STATE OF CALIFORNIA  SUPERIOR COURT
             CASE NO.

Plaintiff and Respondent,    TRIAL COURT NO: 2CA04539-01

  vs.

KELLEY LYNCH,

Defendant and Appellant.

APPEAL FROM THE HONORABLE JUDGE VANDERET LOS ANGELES SUPERIOR COURT

APPELLANTS OPENING BRIEF

STATEMENT OF THE CASE

On or about January 5, 2012, a complaint was filed charging Defendant and Appellant Kelly Lynch, (hereinafter “Kelley Lynch" or “Miss. 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.)

STATEMENT OF THE FACTS

Mr. Cohen is a songwriter and a singer (Reporters transcript, hereinafter “R.T.” page 49, line 13). Mr. Cohen confirms that he knows Ms. Lynch who worked for him as a personal manager for about 17 years. (R.T.P. 49. Ls. 24-25.) Cohen testified that they had a brief intimate relationship (R.T.P. 49, ls. 28-29.) Ms. Lynch was allegedly 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 was apparently alarmed by Ms. Lynch’s voice mail messages and emails. “ I was concerned about my safety and the safety of my children and grandchildren “ (R.T.P. 54, ls. 19-22.)

According to Leonard Cohen’s testimony with respect to 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” (R.T.P. 59, ls. 3-4). “She often accused me of being on drugs, particularly when her voice was allegedly slurred and intoxicated” (R.T.P. 59, ls.15-17). “Her e-mails often threatened to take me down” (R.T.P. 60, ls. 12-13).

Nikhil Ramnaney sets the record straight:

Around 2005, that’s when things began to change ... there were questions about the IRS and taxes ... He got his attorneys involved ... and his attorneys had a plan., The plan was to get Ms. Lynch to work with Mr. Cohen and to pin the blame on ... She said no, I’m not going to falsify anything. I’m not going to go out and do what you tell me to do, and she refused ... Well, she’s not going to help us. That means she’s going to hurt us. So they went after Ms. Lynch the best way they knew how. Using the legal system ... have done everything in their power to harm Ms,. Lynch ... she’s lost everything ... her job, her money, her child, all orchestrated ... if they ruin her credibility, well, that helps Mr. Cohen. And they have done everything in their power to hurt Ms. Lynch’s credibility. (R.T.P. 45, ls, 1-28.) They wanted to go and they went and tried to hurt her economically and to put a restraining order so they couldn’t have any contact during the litigation. That was their intent. That was their purpose. (R.T.P. 46, ls. 9-13.)

“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.” The Colorado order is a civil harassment order that Miss Lynch requested at the hearing. This was registered in California, on May 25, 2011, as a domestic violence restraining order although Kelley Lynch and Leonard Cohen were never in anything that even remotely resembled a “dating relationship.”

Exhibit 3 for identification is the restraining order from 2005 (R.T.P. 70, ls. 1-3). 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, ln. 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 me Phillip 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.)

NOTE: Mick Brown/UK Telegraph has now confirmed that he was in receipt of the Grand Jury Transcripts and Cohen's statements were presented to the Grand Jury. There was confusion re. statements vs. testimony. Cohen's statements were absolutely used in Phil Spector's prosecutors' motions.

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). 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).

NOTE: Kelley Lynch did not handle anything having to do with the corporate structures, corporate books and records, tax strategies, financial advice or investments, accounting, etc. Leonard Cohen was fully represented by experts in their field - who were lawyers, accountants, etc.

(Cohen alleged that) 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 and answered yes - he later acknowledged lying (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’s attorneys are Robert Kory and Michele Rice (R.T.P. 283, ls. 15-21).
Mr. Cohen obtained a civil harassment order in 2008 from Colorado (R.T.P. 298, ls. 21-28.) The order was not registered in California until 2011 (R.T.P. 300, ls. 22-23). It was registered in Los Angeles as a domestic violence order although Cohen and Lynch were not in a dating relationship, ever (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.TP. 315, ls. 3-4).

People’s 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 alleged that she received approximately 95 e-mails. Ms. Lynch in the e-mail said it was a fraudulent restraining order and she needed 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 Company, Inc., Traditional Holdings, LLC, LC Investments, LLC. There were problems with the Stranger Music deal that also 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 1984 when she was employed by the law firm of Machat and Machat. She began working with Mr. Cohen after Mr. Machet died (R.T.P. 448, ls. 13-24). She worked from as Cohen’s personal, manager from April 1988 until 2004. In several e-mails Ms. Lynch was requesting to be paid in regard to commissions, deals etc. (R.T.P. 457, ls. 11-28). At no time during 2004 through 2005 did the police contact Ms. Lynch regarding the threatening of Mr. Cohen and his children or Mr. Kory (R.T.P. 466, ls. 1-8). There are no threats and LAPD was clear in their report - the emails were generally requests for tax information.

“I spoke to Bill Betzer on April 15, 2005 after I paid my taxes in full (R.T.P. 463, ls. 20-23). I did receive an email -- I mean I did receive a phone call from Agent Kelly Sopko of the Treasury regarding this matter. And I did meet with her and her partner, whose name is Brandon” (R.T.P. 464, ls.13-16). “Well, I think I attached Agent Sopko’s email to me, saying that she found an appropriate individual for me, which is Agent -- to report this to, which is Agent Luis Tejeda of the IRS Unit in Los Angeles” (R.T.P. 468, l. 24, 469, ls. 11-13, 18-26). “I was never served with a lawsuit.” “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 for - 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 never served or notified the default judgment on May 15, 2006 as she was homeless. (R.T.P. 525, ls. 12-17.) The prosecutor and Cohen (who altered the voicemails with a sound engineer - sound, speed, and volume - alleged that: Not all of those voicemails were when Ms. Lynch was sober. Prosecutor: You were sober when you made those, correct? There were some when I drank too much. Leonard Cohen has testified that I was slurring, right (R.T.P. 527, ls. 10-15). And I found the sound distorted. I couldn’t tell (R.T.P. 527, ls. 24-25).

ARGUMENTS

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 certainty. The jury must therefore have reasonably rejected all that undermines confidence. Accordingly, in determining whether the record is sufficient in this respect, the appellant court can give credit only to “substantial evidence.” i.e., evidence that reasonably inspires confidence and is of solid value.”

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; and, 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.

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 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.

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) .there were words uttered through a twitter communication. The recipient of the tweets was a public figure. 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 the 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 Miller test was developed in the 1973 case Miller v. California. It has three parts:
Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest; whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. The work is considered obscene only if all three conditions are satisfied.

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. Leonard Cohen has published what is known as the most obscene book ever published in Canada, “Beautiful Losers.” He has written lyrics such as “don’t go home with your hard on” and “give me crack and anal sex.” Cohen recently gave his blessings and interviews to a biographer who has a chapter titled “Children, Taxes, and Lost Pussy.” Leonard Cohen is not offended by obscenities and most certainly not by expletives, which is what Ms. Lynch used out of extreme frustration.

The evidence proffered in this case is for a legitimate business purpose. Ms. Lynch 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 rebutts a key element in the Prosecution’s case.

Furthermore there was also evidence that Ms. Lynch (and the State of Kentucky and IRS) received documents like the K-1s from other sources (Leonard Cohen, as the sole owner of LC Investments, LLC) that were not the property of Ms. Lynch. This is another legitimate reason for Ms. Lynch to request tax records/information from Mr. Cohen which included requests to rescind the illegal K-1s that are evidence of felonies.

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 dispute. Both versions of the events are contradictory. As to the totality of circumstances, 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, financial data, royalty statements, accounting information, etc. for her personal records and tax filing purposes.

The un-corroborated 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 IRS Agent Luis Tejeda to testify on behalf of Ms. Lynch. The witness would be able to testify as to the tax predicament the Ms. Lynch was in; the fact that the 2005 refund could not possibly close the IRS case re. the allegations Lynch brought to Tejeda’s attention in 2007; the illegal K-1s from LC Investments, LLC; whether a 1099 or tax documents (IRS filing and reporting requirements) could violate a restraining order - as Kory and Rice have alleged, etc. She had no other choice but to insist that she obtain tax documents to clear her name.

F. 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 not served the California registered order (and was under the impression the Boulder order expired). If indeed that is the case there would be no way that the proof of service would be true. No proof of service was attached to the registered order. Therefore use of the restraining order in California would not be valid 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 $150,000.00 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 and his theft from her in the millions, tax fraud, etc.

Another extremely important point is that there was mention that Mr. Cohen had lied about Mr. Phil Spector to the grand jury. In fact, Leonard Cohen’s statements were apparently presented to the Grand Jury. His statements regarding Phil Spector and a gun incident appeared in the prosecutors motions in the Phil Spector trial. Unfortunately, that version of the gun incident is contrary to the two additional versions of Leonard Cohen’s Phil Spector gun stories in this trial alone. Therefore, there are three versions of Leonard Cohen’s gun story incident re. Phil Spector before LA Superior Court. The versions involve a gun to the head, a gun to the neck, a gun to the chest, an automatic weapon, and a semi-automatic weapon. Additional versions in the news media involve a bottle of wine in one hand. The prosecutors in Phil Spector’s trial omitted that detail. All of this will be addressed more fully in Kelley Lynch’s Writ of Habeas Corpus - as will every lie and perjured statement made by prosecutor Sandra Jo Streeter, Leonard Cohen, Robert, Kory, Michelle Rice, and Captain Jack Horvath.

The Prosecutor’s office for whom Deputy City Attorney Streeter works (in the Domestic Violence Unit although Lynch and Cohen were not in a dating relationship and there is no domestic violence), together with the District Attorney’s office, have a vested interest in making sure that the prosecution of Mr. Spector remains intact. They clearly do not want the verdict overturned. The District Attorney failed to prosecute Mr. Cohen for fraud. Prosecutor Alan Jackson appears to be in charge of the Major Fraud Unit that would technically prosecute individuals for fraud, theft, etc. over $300,000. In this instance, Leonard Cohen has stolen millions from Kelley Lynch. 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. An objection would not have reversed the inconceivable harm Streeter created for Kelley Lynch - based on lies, concealment of exculpatory evidence, etc.

II. THE APPELLANT SHOULD HAVE BEEN ACQUITTED ON THE CHARGES DUE THE INSUFFICIENCY OF EVIDENCE

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 are 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 and essentially blame other parties for Leonard Cohen’s wrong doing and tax problems.

CONCLUSION

Based on the above it is respectfully requested that the instant case be overturned and dismissed.

Dated: 17 December 2012   Respectfully Submitted

Francisco A Suarez
   Attorney for Appellant

On Tue, Oct 28, 2014 at 2:14 PM, Kelley Lynch <kelley.lynch.2010@gmail.com> wrote:

cc: Francisco Suarez, Esquire

On Tue, Oct 28, 2014 at 2:09 PM, Kelley Lynch <kelley.lynch.2010@gmail.com> wrote:

Jeffrey,

I thought you might want to review these documents since the proxy lawyer arguing Cohen's case has addressed them and you are the attorney of record in one matter where the fraud domestic violence related orders were raised as an issue.

Kelley Lynch

On Tue, Oct 28, 2014 at 2:08 PM, Kelley Lynch <kelley.lynch.2010@gmail.com> wrote:

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 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 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 attached hereto a copy of the City Attorney's Reply Brief filed with 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

                                  IN THE APPELLATE DEPARTMENT OF THE

                               SUPERIOR COURT, COUNTY OF LOS ANGELES

                                                     STATE OF CALIFORNIA

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

                                               APPELLANTS OPENING BRIEF

FRANCISCO A. SUAREZ, ESQ. 135479

            Law Office of Francisco A. Suarez

301 W. Mission Blvd.

            Pomona, CA 91766

                        (909) 469-5111





TABLE OF CONTENTS

STATEMENT OF CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   2

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

I. WHETHER OR NOT A REASONABLE JURY COULD HAVE CONVICTED                            THE APPELLANT BEYOND A REASONABLE DOUBT?

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                           FOUNDATION AND SHOULD BE                                                                   STRICKEN………………………………………………………….9

       B. THE WORDS OF MS. LYNCH WERE                                                                         PROTECTED BY THE FIRST AMENDMENT FREEDOM OF                          SPEECH………………………………………………………….10

       C. THE CRIME OF HARRASSING AND ANNOYING PHONE                                  CALLS AND EMAILS WAS NOT PROVEN…………………….11

        D. THE RESTRAINING ORDER WAS NOT PROPERLY SERVED                           AND THEREFORE                                                                                                 INOPERABLE……………………………….12 .



        E. A CRIMINAL DEFENDANT HAS THE RIGHT TO COMPEL THE                      ATTENDANCE OF WITNESSS AT                                                                      TRIAL…………………………………………..…………………13

       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

                                                  STATEMENT OF THE CASE

            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.)

                                             STATEMENT OF THE FACTS

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 20^th 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                     confidence. Accordingly, in determining whether the record is sufficient in this respect, the appellant                court can give credit only to “substantial evidence.” i.e., evidence that reasonably inspires confidence                 and is of solid value.”

      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 6^th 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.4^th 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.

                                                                   II.
THE APPELLANT SHOULD HAVE BEEN ACQUITTED ON THE CHARGES DUE THE INSUFFICIENCY OF EVIDENCE

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.


                                                           CONCLUSION

            Based on the above it is respectfully requested that the instant case be overturned and dismissed.

Dated_______________                    Respectfully Submitted

                                                            ____________________________________

                                                            Francisco A. Suarez

                                                          Attorney for Appellant

                                 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.

                                                Francisco A. Suarez

On Tue, Oct 28, 2014 at 2:29 PM, Kelley Lynch <kelley.lynch.2010@gmail.com> wrote:

Hi Criminal Division DOJ,

Korn sent me an Objection document, which I forwarded you, that took the position that Boies Schiller's statements that Cohen/Kory attempted to engage me in criminal activity were hearsay. On the other hand, Michelle Rice attached a tremendous amount of evidence from Greenberg's Colorado lawsuit against Cohen. Once again, I agree with Greenberg on these points. I find everything else to be self-serving.

I will sign and submit this to you, and Judge Hess, with the Motion I will hopefully file at the end of this week, beginning of next week. The perjury, fraudulent misrepresentations, etc. are inconceivable and overwhelming. Robert Kory continues to lie that I reported the tax fraud in 2007 although that is simply perjury. I reported the allegations to Agent Bill Betzer on April 15 2005 and to the Fraud Unit, etc. thereafter. Prior to reporting this to Agent Betzer, I had spoken to the State of Kentucky's Revenue Cabinet. I have also spoken with Rob Watts in the State of Kentucky's Fraud Unit and he would like everything I sent IRS. I advised him that I gave IRS permission to review all my emails with Cohen, his representatives, and others. I've authorized IRS to use them as they see fit.

This situation is a mess. However, the use of these fraud orders to prevent me from requesting or transmitting IRS required information is a federal matter that should concern the DOJ's Criminal Division.

I think they are simply playing games because Cohen has money and their tactics have worked at LA Superior Court. LA Superior Court doesn't require evidence and willfully disregarded all corporate books, records, stock units, agreements, etc. The judgment must be illegal because the entities inserted into that judgment are not named as parties to the lawsuit. Furthermore, that judgment effectively altered my previously filed federal tax returns. I have challenged all of this - including Cohen's fraudulently obtained IRS and FTB refunds.

All the best,

Kelley

SCHEDULE OF

FACTUAL ALLEGATIONS & STATEMENTS

NEAL GREENBERG AMENDED COMPLAINT

I, Kelley Lynch, agree with the following factual statements and was a witness to much of what was addressed in Neal Greenberg’s Amended Complaint (Denver District Court, Case No. Case 1:05-cv-01233-LTB). Therefore, Neal Greenberg and I are in agreement with respect to the following facts. See Neal Greenberg Amended Complaint & Exhibits attached hereto and made a part hereof. Kelley Lynch opposes all statements raised in Greenberg’s Complaint and not contained in the following excepts taken directly from the Amended Complaint.  See Amended Complaint attached hereto and made part hereof.

Dated: 23 October 2014

___________________________________

Kelley Lynch

Neal Greenberg. Vs. [HEADING]

Denver District Court, Case No. Case 1:05-cv-01233-LTB

Judge Lewis Babcock

Defendant Leonard Cohen (“Cohen”), a noted recording artist, acting directly on his own behalf, and through his agent and attorney, Robert Kory (“Kory”), has threatened to take or has taken, improper and unlawful actions, including bribery and intimidation of a witness, subornation of perjury, defamation …

Cohen’s extortion scheme was eventually exposed by Lynch and ultimately frustrated …

Cohen has made clear that he asserts rights over certain investment funds that belong to Traditional Holdings, LLC (“Traditional Holdings”), a dissolved Kentucky entity that was managed and 99.5% owned by Lynch and 0.5% owned by Cohen.

From the early 1990s, impressed with a new strategy used by other Hollywood celebrities to cash in on their future revenue streams from IP rights and increase short-term income (called a “Pullman
or “Bowie” bond, after the artist David Bowie who first used it), Cohen … worked aggressively with advisors, including Greg McBowman, to auction off portions of his IP to the highest bidder.

Lynch arranged for Cohen to have a first meeting with Greenberg in 1996 to discuss Cohen’s investment options for the proceeds from the anticipated First Sony Sale.

During this meeting, and at Cohen’s request, Greenberg suggested ways in which Cohen could structure the investment of his proceeds from the First Sony Sale so as to reduce tax consequences and generate substantial income.

Cohen worked with, and began to be represented by, a creative tax attorney and law professor from the University of Kentucky, Richard Westin (“Westin”). Cohen also had other advisors and consultants working with Lynch on his business, music and tax matters, including Greg McBowman … Ken Cleveland, as well as Stuart Fried and other attorneys at the law firm of Grubman Indursky & Schindler, P.C.

Ultimately, Cohen decided to transfer some of the income from the First Sony Sale into charitable remainder trusts. On October 30, 1996, Cohen established three trusts: the Sabbath Day Charitable Trust (the "Sabbath Day Trust"), the Cohen Family Charitable Trust (the "Cohen Family Trust"), and the Cohen Remainder Trust (the "Remainder Trust") (collectively, the “Trusts”).

Cohen … repeatedly withdrew large amounts of the Trusts’ assets. On repeated occasions, TAS notified Cohen (both directly, when possible, and per instruction through Lynch) that Cohen was spending more than recommended from the Trusts, and thus, was draining down the Trusts’ principal.

On one such occasion, on April 13, 2001, Greenberg, on behalf of TAS, wrote to Cohen: “I am writing to you to discuss the income withdrawals you’ve received from your portfolio and to provide you with some helpful guidelines for the future. When we originally constructed your portfolio in 1997, you may remember that we had extensive conversations about how much you required for your annual living expenses.”

In or about 1999, Cohen put more of his IP up for auction. In 1999, Sony and Cohen … negotiated for a second sale of IP to Sony for about $8 million (the "Second Sony Sale"). The artist royalties to be sold were represented by Cohen as being held by another … entity, Blue Mist Touring Co., Inc. ("Blue Mist"). Cohen was the Chairman, President, and majority shareholder of Blue Mist, owning 425 shares, while Lynch was the Assistant Secretary and minority shareholder of Blue Mist, owning 75 shares, or 15% of the company.

Cohen asked Westin, and in the spring of 2000, Greenberg, to provide advice about how to invest the anticipated proceeds from the Second Sony Sale and minimize the sale’s tax burden.

Cohen leapt at this opportunity to minimize his tax burden [via Traditional Holdings, LLC], just as he had explored all possible means of reducing his taxes in years past, such as by seeking a tax credit for donating his papers to a Canadian museum [University of Toronto], and using artifices in dealing with Sony to avoid paying any Canadian taxes (as a Canadian citizen) on his royalty income earned in Canada.

Westin’s proposed plan had the following basic components: a limited liability company – which eventually became Traditional Holdings – would be created. Blue Mist would transfer certain IP assets to Traditional Holdings in exchange for a deferred annuity, to be paid to Cohen beginning in about 10 years. Traditional Holdings would then sell the assets it received from Blue Mist to Sony. The tax plan prevented Cohen, the annuitant, from owning more than a de minimis interest in Traditional Holdings. Therefore, Cohen would own less than 1%, and another person – who ultimately was Lynch – would own the remaining LLC interest (more than 99 percent).

Westin outlined this proposal to Cohen and Lynch both orally and in a series of letters and other written communications between October 2000 and December 2000. See, e.g., Exh. 1 attached.

In these written communications, Westin explicitly warned Cohen that since the annuity plan gave significant transactional control to Lynch, and also potentially placed tax and other burdens upon her as majority shareholder, the plan would work only if Cohen and Lynch maintained (as they had in the past) a long-term relationship of personal and professional trust which would secure their mutual obligations as manager of the obligor (Lynch) and annuitant (Cohen). See, e.g., Exh. 2 attached.

Cohen carefully reviewed, understood, and signed off on the ownership structure of Traditional Holdings – including the fact that Lynch would own 99 percent of Traditional Holdings’ membership interests, so as (among other reasons explained by Westin) to avoid any suggestion of self-dealing.

First, Cohen reviewed the Traditional Holdings Articles of Organization, and reviewed and executed the Traditional Holdings Operating Agreement, which set forth in detail the entity’s ownership structure and managerial procedures. See Traditional Holdings Articles of Organization and Operating Agreement (Exh. 3 attached).

Second, Cohen participated, at his request, in conference calls with Westin and Lynch and/or Greenberg during which the structure was carefully reviewed.

Third, Cohen talked about the structure of Traditional Holdings privately with Lynch, including when he forced her to discuss it with him while he took a bubble bath.

Fourth, in addition to several explanatory faxes he received from Westin describing Traditional Holdings, Cohen communicated specific questions, through Lynch, relating to Traditional Holdings’ ownership and transactional structure, which questions Westin answered in a letter written directly to Cohen on December 4, 2000, and faxed (as with his prior memos) directly to Lynch and Cohen. See, Exh. 2.

Moreover, regardless of whether Lynch owned 1 percent or 100 percent of the shares of Traditional Holdings, Cohen knew or should have known that she had or came to have authority – through a durable power of attorney and pursuant to her role as Traditional Holdings’ manager – to act, and give directions, on Traditional Holdings’ and on his own behalf. See, e.g., Exh. 3.

Likewise, no matter who owned the majority of shares of Traditional Holdings, the obligation to fulfill a deferred annuity obligation to Cohen remained the same. Thus, Cohen's interests in the firm (the long term annuity payments) were identical, no matter how his purported ownership interest in the assets were held and invested in the interim.

In December 2000, Westin created Traditional Holdings as a Kentucky limited liability company. Lynch was named as the initial manager in the Articles of Organization, and both Cohen and Lynch were appointed as managers in the Operating Agreement. Id. Also in December 2000, Cohen signed a Private Annuity Agreement with Traditional Holdings which document sets forth Traditional Holdings’ annuity obligations to Cohen. See, Private Annuity Agreement (Dec. 7, 2000) (Exh. 4 attached). Lynch signed the Private Annuity Agreement on Traditional Holdings’ behalf. Westin maintained, and continues to maintain, that the company and its annuity contract with Cohen are legitimate under prevailing interpretations of the federal tax code.

To purchase her ownership interest in Traditional Holdings, Lynch was required to submit to Traditional Holdings a promissory note for $240,000. It was agreed that Lynch would receive a salary and/or distributions from Traditional Holdings sufficient to pay down the $240,000 promissory note and to cover tax liabilities. See, Exhs. 2 and 3.

As set forth in the Operating Agreement, Traditional Holdings was authorized to issue loans to its members, Cohen and Lynch, as long as the loans were paid back before the annuity obligations commenced. See, Exh. 3.

In April 2001, the Second Sony Sale was completed. The gross proceeds of the Second Sony Sale were approximately $8 million, less certain identified costs, expenses, and holdbacks for undelivered work.

Of these proceeds, Cohen had already requested and received $1 million as an advance in November 1999. Cohen was well aware of this $1 million advance because it became the subject of a tax dispute with the Internal Revenue Service in 2002.

Of the remaining proceeds of the Second Sony Sale, [certain] amounts were paid to cover the costs involved in closing and negotiating the Second Sony Sale:

$350,000 Grubman Indursky & Schindler, P.C. (attorneys for Cohen)

$333,750 McBowman Consulting Group (consultants for Cohen)

$30,450 Epstein Backer & Green, P.C.

$1,101,250 Stranger Management (commissions to Lynch's company)

Kelley Lynch comments in bold: The following amounts, as confirmed in Cohen’s Complaint, should have been fully addressed in Neal Greenberg’s Amended Complaint. Cohen’s Complaint, Clause 61, confirms that transaction fees related to the 1^st and 2^nd Sony deals totaled approximately $4.7 million and listed the following amounts:

$1.2 million – Stranger Management

$350,000 – legal fees (Grubman, Indursky firm)

$350,000 – consultant fees (Greg McBowman)

$500,000 – for federal income taxes and penalties due on Sony’s $1 million advance paid on the sale in 1999.

$100,000 – Richard Westin legal fees

$200,000 – Leonard Cohen’s settlement fees re. failed CAK bond deal

Additionally, Cohen withdrew approximately $592,000 as a “shareholder loan” from the Traditional Holding account to purchase homes for his son and girlfriend. The Greenberg Complaint confirms that $2,084,518 belonging to Traditional Holdings, LLC was deposited into Leonard Cohen’s account. Leonard Cohen also personally received $1 million advance on the Traditional Holdings, LLC 2001 sale and failed to transfer this amount to the corporate entity. The above expenses, loans, income and deposits total: $6,376,518.00. In addition to this, a Promissory Note was prepared and signed by Leonard Cohen. That Promissory Note addressed an additional approximate amount of $355,000 Leonard Cohen owed Traditional Holdings bringing the total to: $6,626,518.00 with interest in the amount of 6% per annum.

None of these listed expenses had anything to do with either the formation of the annuity plan or

with Traditional Holdings’ dealings … Westin did receive a modest fee for his work on the Traditional Holdings documents, and for consulting with Sony on Cohen and Traditional Holdings’ behalf.

Agile Group [sent] official monthly statements to Cohen at the Larchmont Address (the record address for Traditional Holdings) setting forth the performance of the Traditional Holdings’ funds invested in the Agile Safety Fund. See, e.g., Exhibit 6 (example of monthly statements sent by independent outside administrator). In addition, Agile Group, LLC sent monthly letters to Cohen which, as a courtesy, summarized the deposits into and withdrawals from the Agile Safety Fund by Traditional Holdings. Id. (example of monthly summaries sent by Agile Group, LLC).

No sooner had Traditional Holdings been funded, however, than Cohen – just as he had done with the Trusts’ assets from the First Sony Sale, and notwithstanding Greenberg’s prior warnings about draining down investment money – began to dissipate the Traditional Holdings funds, jeopardizing his own long-term annuity interests, as well as the company’s legitimacy. Greenberg and others were immediately alarmed by Cohen's desire and tendency to treat this company like his own personal piggybank, out of which he could borrow or take distributions against his annuity benefits.

For example, almost immediately after the funding of Traditional Holdings, Cohen took out a loan for $50,000. This was followed, during 2001 and 2002 alone, by several loans to Cohen … to cover tax liabilities, houses for Cohen's son and his current girlfriend, and living expenses. These 2001-2002 loans to Cohen –amounting to over $1 million – were deposited directly into Cohen’s personal bank account at City National Bank in Beverly Hills, California.

In March 2002, Greenberg [spoke to] Cohen directly by telephone, Cohen “admitted he was spending too much and seemed a little shaken when [Greenberg] reminded him how much he had just spent on gifts to friends."

Lynch repeatedly assured Agile Group, LLC and TAS that the loans from Traditional Holdings were being properly documented with Westin’s assistance. Cohen’s tax attorney, Westin, also was aware of and in regular communication with Lynch [Cohen, Greenberg, and Cohen’s other representatives] concerning the shareholder loans and other aspects of the affairs and management of Traditional Holdings.

The March 5, 2002 Traditional Holdings Board Meeting Minutes, prepared at Westin’s direction, state “that the level of borrowing was undesirable and [the members] expressed their assent that further borrowing was discouraged, even though the borrower’s [Cohen’s] credit and collateral were good.”

Cohen, however, gave no sign that he had any intention of abating his spending habits. In an e-mail to Lynch dated March 4, 2002, Cohen thanked Lynch for “keeping [him] informed,” and instructed her to “give lots of money to everyone.”

Because these shareholder loans were to be repaid, and because it was necessary to protect the entity’s integrity for tax purposes, these shareholder loans were properly characterized, on Cohen’s tax attorney Westin’s advice, as Traditional Holdings assets when calculating the entity’s value.

Lynch, on Cohen’s behalf, sent e-mails to Colorado in response to Greenberg’s warnings, defending the loans, giving assurances that all of the loans were proper and documented, and assuring that they would be paid off when Cohen received the money from another, upcoming Sony transaction.

In October 2004, Cohen and Lynch had a major falling out, the details of which remain unknown to Plaintiffs. As a result of this falling out, the Third Sony Sale – which appeared to be on the verge of consummation – never happened.

On October 21, 2004, Cohen personally contacted Greenberg by e-mail and informed him that Lynch was “busy with other aspects of [his] career,” and therefore, Cohen had “relieved her of all financial responsibilities.” Cohen further stated that Lynch “need not be copied on your statements or reports,” and that Cohen's new accountant would “be in touch.”

On October 22, 2004, Cohen sent another e-mail to Greenberg stating that Lynch “no longer represents me,” and directing Greenberg not to “respond to any of her instructions.”

On or about October 24, 2004, Cohen again communicated directly with Greenberg by e-mail, stating that his business address was no longer the Larchmont Address or Keniston Address. With allegations flying fast and furious from Cohen – and later Kory – that Lynch was acting without due authority from Cohen, remarkably, a request to change Cohen's record address was left on Plaintiffs’ general voice mailbox by Anjani Thomas. Only later did Plaintiffs learn the identity of Ms. Thomas – Cohen’s current girlfriend, and Kory’s ex-wife. Thus, Plaintiffs demanded an original signature from Cohen on a document verifying the new address

Given Lynch’s position as manager and 99.5% owner of Traditional Holdings, and learning of the apparent schism between Lynch and Cohen, Agile Group, LLC became concerned about whose directions as to the Traditional Holdings account it was legally obligated to follow. On October 24, 2004, Agile Group, LLC communicated with Westin – Cohen's attorney who had created Traditional Holdings – and inquired: “Does Leonard in your view have equal authority over the accounts that we manage? What if there are contradicting directive on those accounts that we manage? For example if KL says 'take money out' and LC says don’t take money, what is your view . . . .” Westin confirmed that because Cohen held a membership interest in Traditional Holdings, Agile Group, LLC could share information with him about Traditional Holdings’ investments. Westin could not, however, answer the issue of conflicting directives, and instead referred Agile Group, LLC to Traditional Holdings' governing documents (drafted by Westin), which documents provided little, if any, guidance on the issue.

At or about this same time (October 22-24, 2004), Cohen phoned Greenberg. Cohen said that he thought Lynch had been taking money from Traditional Holdings without Cohen's authorization. He claimed that Lynch was using the money to support a gigolo and to fund shopping sprees at Neiman Marcus, and suggested that Lynch and Westin may have colluded to defraud him. When Greenberg reminded Cohen that Westin had warned Cohen in 2000 that "the biggest risk" from Westin's tax avoidance plan “was that Lynch would own his [the] assets and he would have lost control,” Cohen stated that he recalled that initial warning.

According to Lynch, however, Cohen regularly visited his management offices, often in Lynch’s presence, and reviewed and discussed his mail with her, all of which was kept on his desk to facilitate such review, including all correspondence, reports, and statements from the Agile Safety Fund’s independent, outside administrators, and from Plaintiffs.

Cohen then turned to his agent and attorney Kory to deal with Lynch, Westin, and Plaintiffs.

Based on these checks, Agile Group, LLC calculated that, of the loan money withdrawn from Traditional Holdings:

a. $2,084,518 had been deposited into Cohen’s own personal bank account;

b. Lynch personally had outstanding loans of approximately $293,000, which loans she represented had been disclosed to and sanctioned by Cohen;

Her abrupt termination frustrated Lynch's ability to make good on any loans through her share of receipts from the Third Sony Sale, the "Dear Heather" album, a pending sale of original lithographs, or other sources, and left her in a precarious financial position …

In November 2004, Lynch was asked by [Cohen] to appear without the benefit of counsel at a meeting with Cohen, Kory, and … Greenberg, Glusker law firm acting as legal counsel for Cohen, and to sign certain legal documents related, inter alia, to unwinding Traditional Holdings on the spot [settle with Cohen]. Lynch refused to do so without benefit of counsel, and subsequently received advice from a variety of legal, accounting and tax professionals, including but not limited to Mike Taitelman, Dale Burgess, Dianne DiMascio, and an IRS officer named Betzer, that she was wise not to sign, because such action could have been fraudulent.

[NOTE: Lynch did not receive this specific advice from IRS Agent Betzer. Lynch spoke to Agent Betzer on April 15, 2005 and thereafter about the allegations re. Leonard Cohen’s tax fraud and numerous corporate entities. Agent Betzer first advised Lynch to bring this matter into the IRS with an attorney and then later instructed her to contact the IRS fraud unit.]

Lynch claimed that she had substantial, unsatisfied interests in Cohen's business entities and/or intellectual property. If Cohen were to attempt to recover money from Lynch, she would likely assert counterclaims alleging that Cohen owes her, and has never paid, substantial amounts of money; and, according to Lynch, and upon information and belief, such possible improprieties included, but were not limited to, the retention by Blue Mist and other persons or entities of IP that should have passed through Traditional Holdings to Sony, the failure to reference or disclose the annuity obligation, loan obligations, and other important matters on Traditional Holdings’ corporate tax returns, and Cohen’s failure to properly document Traditional Holdings’ transactions.

Because any attempt to recover money from Lynch was likely to be both futile and treacherous, Cohen, Kory, and other unnamed co-conspirators (including Steve Lindsay, Betsy Superfon, and John Doe Nos. 1-25) … conspired ...

Thus, for example, although the attorneys and accountants involved in the Second Sony Sale structured and received hefty fees for that transaction, which Kory charged were excessive, Cohen and Kory decided not to pursue any of those persons because they would not be easy targets, and because many of them – principally Sony and its law firm and advisors –continued to do business with Cohen profitably. Instead, Cohen and Kory decided to go after Plaintiffs, none of whom had any role whatsoever in that Sony transaction and/or received any benefit therefrom.

[NOTE: In a Memorandum Kory provided to Lynch’s lawyers, Ira Reiner and Kevin Prins, he raised issues related to fraud in the inducement against members of the Grubman firm and Greg McBowman. Kory advised Lynch’s lawyers that they were considering going after Ken Cleveland. Kory also advised Lynch that she had a cause of action against every one of Cohen’s representatives and they would assist her with those claims if she provided testimony against Cohen’s representatives and advisers.]

He [Leonard Cohen] told Greenberg to "be a man" and contact his insurance company. “Please do talk to the insurer. A great deal of suffering can be avoided.”

Cohen with affirmative support from Kory, Steve Lindsay and Betsy Superfon, and John Doe Nos. 1-25, all acting toward a common end and each for his or her own purposes, began to direct an extortion scheme …

Cohen and Kory indicated that, unless Plaintiffs obtained insurance funds … Cohen would go out on tour to promote his new album, and would give interviews to reporters in which he would state or insinuate that he was touring because he had been bankrupted by the improprieties of his financial advisors.

Cohen and Kory knew full well that, from Plaintiffs’ perspective, once a celebrity were to raise such allegations of fraud and breach of duty against them, the damage would already be done, no matter the ultimate outcome.

Cohen and Kory began to pressure Lynch to assist in the extortion scheme against Plaintiffs. Specifically, they requested that she falsely testify … Cohen sought to obtain … testimony from Lynch knowing that the testimony would be false.

Lynch's cooperation in Cohen’s extortion scheme was critical. Cohen believed that he could not only use Lynch as a witness against Plaintiffs, but could also buy or coerce her silence as against himself at the same time.

Thus, Cohen pressed for private "mediation" as an alternative to a public lawsuit, knowing full well that with Lynch's cooperation and silence, many of the critical documents concerning Cohen's financial affairs – documents that indubitably show … his aggressive tactics to avoid taxes at all costs, and his desire to capitalize on and benefit from all of his intellectual property during his lifetime to fuel an extravagant lifestyle – would not be the subject of discovery

Thus, by deliberate misrepresentations and omissions of critical facts … Cohen could knowingly and deliberately misrepresent his objectives and sophistication as an investor, his long history of aggressive tax management, his long history of exploitation of his IP for immediate gain and profit, his profligacy …

For example, Cohen affirmatively misrepresented to Plaintiffs that Lynch had simply forged his signature on various documents, knowing full well that she had not done so, or had signed with his full authority (as borne out by his subsequent actions – such as purporting to state claims based on agreements with TAS bearing his signature, and revoking a power of attorney bearing his signature that he acknowledged executing).

Cohen likewise falsely asserted that at no time had he authorized any of the shareholder loans from Traditional Holdings, and made various accusations against Lynch for which he had no basis in fact …

As one example, he claimed never to have known, prior to November 2004, that Lynch was the majority shareholder of Traditional Holdings, thereby implying that he had been deceived by Plaintiffs and Westin. He also denied receiving information about Lynch's role as managing the obligation to pay his annuity, and denied ever receiving any information from Plaintiffs other than some monthly email summaries, even though he was easily able to retrieve Plaintiffs’ other written warnings, reports and correspondence from [Lynch’s] own Keniston office address in 2004, and was reported by Lynch to have regularly visited the office, reviewed his mail, and discussed Traditional Holdings' loans and his other accounts with her on a regular basis.

In particular, starting in March 2005, Cohen began to assert that Plaintiffs were responsible for the loss of $8 million, which figure included many millions of dollars which they knew Cohen had, in fact, received and previously spent in support of his own extravagant lifestyle.

… according to Lynch and others, he was prepared to admit or agree with Lynch that she owed Cohen nothing.

Having garnered the support of Lynch's then-attorney, Dianne DiMascio (“DiMascio”), Cohen felt

confident enough in January 2005 to misrepresent to Plaintiffs’ counsel, through Kory, that Lynch was then of the view that she, along with Cohen, was a victim of the misconduct of Plaintiffs and Westin.

Cohen and Kory continually sought to purchase or coerce Lynch’s cooperation

In a demand letter from Kory to DiMascio, Kory wrote: I want to reemphasize my position that I am willing to work with you as part of a settlement between Mr. Cohen and Ms. Lynch in going after Westin’s and Greenberg’s insurers as a source of restitution.

Thereafter, on January 11, 2005, Kory wrote to DiMascio, telling her that [Ira Reiner believed] “properly framed letters to Greenberg and to Westin would cause their insurance companies to show up.”

Lynch declined to attend the meeting in person. Instead, DiMascio went to the meeting on Lynch’s behalf in early February 2005, after which she reported to Lynch: “[Cohen and Kory] want your cooperation in pursuing [the Plaintiffs] and Richard Westin. In this regard, they seem to want you to acknowledge that you knew that Neal [Greenberg] and Richard [Westin] wanted to defraud Leonard and that you approved their conduct.”

Repeatedly, from at least November 2004 through April 2005, Kory made known

to Lynch, directly, through counsel, through Steve Lindsay (the father of Lynch’s youngest child

and one of Cohen’s record producers), through Lynch’s accountant Dale Burgess, through

accountant Mike Taitelman, and through others among her friends and relatives, that he had

extraordinary negotiating authority from Cohen to "forgive" any obligations of Lynch, to treat

them as a gift, to make additional payments to her or her family members (including disguised as

"palimony" on the pretext that Cohen is the father of one of her children), to make good on

Lynch's shares of IP rights or legal entities, or even to dedicate a hefty percentage to her of

whatever funds could be extorted from Plaintiffs and other advisors with her cooperation.

Kory tried to do this directly in late spring 2005 when he met Lynch for lunch and tried to persuade her to work with Cohen to “go after” Plaintiffs [and all of Cohen’s representatives].

Cohen and Kory also worked indirectly. For example, they recruited Lynch’s erstwhile friend and longtime “friend” of Steve Lindsay, Betsy Superfon, a person of some notoriety due, among other reasons, to her entrepreneurship in the telephone sex trade. On numerous occasions, Kory [and Cohen] used Lindsay and Superfon to try to “broker” deals with Lynch …

In one such conversation, in May 2005, Superfon, according to Lynch, called Greenberg “the kingpin” and a “criminal” and pleaded with Lynch to cooperate with Cohen for “[her] heart, [her] health, and [her] kids” and recommended that Lynch “get out of this.” Superfon promised that she could “settle this for [Lynch] immediately,” and stated that “Leonard and Kory [are] trying to get you out of this situation.”

When Lynch requested a settlement agreement in writing during a later conversation, Superfon, according to Lynch, stated that when she asked Kory to fax Lynch a settlement, Kory said “you can’t fax this kind of a deal. It has to be discussed.” [Superfon advised Lynch that she personally believed the deal they were offering was illegal.]

Through Lindsay, Superfon and other friends, relatives and acquaintances, Cohen and Kory delivered the message that giving in to Cohen’s wishes would be in Lynch’s best interest.

When these tactics to draw Lynch into his extortion scheme proved futile, Cohen and Kory – according to Lynch – turned to far more aggressive means to obtain her cooperation. Indeed, as heard by other witnesses, Cohen and Kory vowed to “crush her,” and planned to use restraining orders and other means to prevent her from serving as a credible witness regarding both Cohen's affairs and in regard to the scheme into which they had tried without success to draw her.

Consistent with that vow and plan, and according to Lynch and other witnesses, and on information and belief, Cohen and Kory's tactics to terrorize, silence, or disparage Lynch have included, inter alia, the following:

a. contacting City National Bank, where Lynch, Lynch’s son .., all had personal banking accounts, and convincing City National Bank to put a freeze on … their accounts;

b. alleging that Lynch's father and mother were depositing funds for Lynch in secret offshore bank accounts … ;

c. threatening Lynch that she would go to jail if she did not cooperate, and having her younger son's father, Steve Lindsay, who was also Cohen’s record producer, repeat these threats in the child's presence;

d. threatening to “go to child services,” encouraging Steve Lindsay to file legal action to remove Lynch’s younger (and his) son from her custody, and submitting affidavits (from Kory and Superfon) supporting that effort;

e. in a coordinated fashion with Lindsay’s child custody petition, encouraging or directing Steve Lindsay to call in a warning to the LAPD (not related to Traditional Holdings, but on some other, unknown pretext) that caused a police team to descend, guns drawn, on Lynch's home, resulting in her being handcuffed and taken involuntarily, in her bathing suit, to a hospital psychiatric ward and medicated without her consent, before being released the next day, during which time Kory attempted to persuade Lynch’s older son, Rutger, to sell Lynch’s house and provide $3 million; and

f. paying two paroled convicts to make [false] statements [about Lynch’s older son].

These and other tactics brought Lynch to the point of … financial ruin.

Cohen’s scheme to force Plaintiffs into a contrived mediation without discovery or publicity might have succeeded, had not Lynch refused to cooperate. Instead, she made the unilateral decision to provide to Plaintiffs' legal counsel a variety of documents and other information that they might not have otherwise seen … See, e.g., Facsimile Message from K. Lynch to S. Posel (March 17, 2005) (Exh. 11 attached).

Fortunately, Lynch [permitted Boies Schiller to review] not only historical files, but also the details of Cohen and Kory's illicit offers made to her through attorney DiMascio, through accountant Dale Burgess, and through other intermediaries, and shared every detail of Cohen and Kory's attempts to negotiate with or threaten her in order to obtain … testimony ...

Cohen and Kory continued to heighten their efforts to bribe or coerce Lynch into giving … testimony … without knowing that Lynch had already exposed their scheme …

Cohen and Kory alleged that Plaintiffs “proposed the sale of Cohen's ‘illiquid assets,’ including Cohen's various royalty interests,” and contended that “Cohen was convinced by [Greenberg] of the financial necessity to sell off his royalty interests during his lifetime . . . .”

Cohen and Kory alleged that Plaintiffs were liable for “actual damages of at least $8 million,” which was an amount even greater than the total proceeds of the Second Sony Sale. In fact, Cohen and Kory made this allegation with full knowledge that Cohen had already received at least $1 million in advance of the Sale closing, that the gross proceeds had been reduced by specific costs and charges, that were well over $1 million had been paid out to third parties to cover closing costs from the Sale, and that Cohen had received at least $2 million of the remainder into his own personal bank account.

Cohen reviewed the Traditional Holdings governing documents (detailing that arrangement), that he repeatedly received and understood both oral and written explanations of this very fact, and that [Lynch was not] behind the formation or structure of Traditional Holdings.

Thereafter, on June 3, 2005, Plaintiffs provided Kory, as promised, a draft complaint … with extensive documentary support … The draft complaint also revealed to Cohen and Kory, for the first time, that Lynch and others had already exposed the extortion scheme. In particular, the draft complaint demonstrated that Plaintiffs were aware of Cohen’s scheme to use economic compensation, emotional intimidation, and other forms of undue pressure to coerce Lynch to provide … testimony …

At all relevant time periods stated herein, Kory acted, at a minimum, as an agent, attorney, joint venturer, and/or co-conspirator of Cohen …

Cohen and Kory knew that the false, disparaging, and defamatory press release was not made in furtherance of any lawful objective or within the scope of the litigation commenced by Plaintiffs, and that the intended recipients were not involved in or closely connected with the litigation.

As a result of Cohen and Kory’s improper and unlawful conduct, the false, disparaging and defamatory press release was immediately published on, inter alia, the following interactive and other websites:

(a) www.leonardcohen.com (the official Leonard Cohen website, which has a link to the chat room for the Leonard Cohen files, where the statement was published);

(b) http://www.cmumusicnetwork.co.uk/daily/050616.html (states that “Kory told CMU” and then quotes the Cohen and Kory press release);

(c) http://xrrf.blogspot.com/2005/06 leonard-cohen-mr.-big.html (referencing the quoted statement as “released by Leonard Cohen’s lawyer” and referring to it as the “Attorney Robert Kory Statement”);

(d) http://blogs.theage.com.au/malcontent/archives/2005/06/leonard_cohen_s.html (also referencing the quoted statement as “released by Leonard Cohen’s lawyer” and referring to it as the “Attorney Robert Kory Statement”; also later reported by MalContent to have been “emailed by

an industry rep to MalContent”); and

Leonard Cohen sued by investment company, alleging civil conspiracy, extortion

June 2005

Musician and legend Leonard Cohen is being sued by a Colorado investment company Agile Group, which alleges Cohen and another person threatened to irreparably damage Agile's reputation in order to extort millions of dollars from Agile and its insurer. The case is related to claim by Cohen that Agile bears responsibility for the alleged misappropriation of Cohen's invested funds by Cohen's former manager. Read it here.

Don's ask me why, but Cohen's classic, Everbody Knows comes to mind.

A statement released by Leonard Cohen's lawyer points to the truth of this sad state of affairs:

ATTORNEY ROBERT KORY STATEMENT
IN RESPONSE TO AGILE GROUP SUIT
INVOLVING LEONARD COHEN

"The suit filed by the Agile Group Monday, June 6, 2005 is completely
consistent with Agile's reckless disregard for its client and his
investments.

We had hoped to reach an out-of-court settlement with Agile that
returned to Mr. Cohen some portion of the retirement money the firm was
authorized to administer on his behalf. Instead, in the middle of
negotiations to determine Agile's responsibilities to Mr. Cohen to
compensate him for money lost under their management, Agile launched a
surprise attack in an effort to besmirch the reputation of one of its
notable clients.

Agile repeatedly failed to alert Mr. Cohen to true account balances
while allowing improper and unauthorized withdrawals by Cohen's former
business manager. In doing so Agile failed to protect Mr. Cohen's
interests and retirement savings and knowingly misled him by providing
inaccurate financial reports.

We will of course file a counter suit that lays out in detail how Agile
acted in a reckless way that violated the firm's fiduciary
responsibilities towards Cohen and consequently resulted in the loss of
Mr. Cohen's retirement savings."

·         Posted by: Adrian du Plessis at June 14, 2005 08:07 PM

(e) http://bcbr.datajoe.com/app/ecom/pub_print_article.php?id=58402 (the website for the Boulder County Business Report, published in Colorado, which references Kory’s posting of the statement on Cohen’s website, and re-publishes the statement).

181. In addition, Cohen made false, disparaging, and defamatory statements and republished

false, disparaging and defamatory e-mails to a reporter for an industry publication known as MacLeans, knowing that the statements would be immediately published by MacLeans to the general public via the internet and other print publications. The MacLeans article, published via the internet on August 17, 2005.  SEE ATTACHED.  [Excerpt: Cohen wrote (Greenberg) in November 2004 … “Face up to it, Neal,” the email continues, “and square your shoulders: You were the trusted guardian of my assets, and you let them slip away . . . Restore what you lost, and sleep well.” In his sign-off, Cohen delivered as much a piece of advice as his own philosophy: “Put this behind you and it will dissolve.”]

The wrongful conduct described herein was attended by circumstances of fraud, malice, willful and wanton behavior, and bad faith.

Consistent with their prior threats, Cohen and Kory have knowingly published or caused to be published false information concerning [Lynch and possibly others] in the public domain …

The false, disparaging, and defamatory press release and other statements are not protected by any statutory or common law privilege because the statements were not made in furtherance of any objective of litigation, either lawful or otherwise, and because the intended and actual recipients of the statements were not involved in or closely connected with the litigation.

The … statements, and other defamatory statements, were communicated to and understood by third parties to be defamatory, and have harmed [Lynch and possibly others] reputation in the community.

Cohen and other co-conspirators not currently named as Defendants herein (including Robert Kory, Steve Lindsay and Betsy Superfon) committed one or more unlawful acts in furtherance of these common goals and objectives.

The unlawful goals and objectives of the conspiracy included inter alia the following: (a) The extortion and/or attempted extortion of money or property from Plaintiffs and their insurers [and others, including Lynch] in Colorado [and elsewhere] to recover alleged losses sustained by Cohen as the result of his own exorbitant spending habits, his own neglect and mismanagement of his financial, legal and personal affairs … The making of substantial threats, that were reasonably likely to induce [Lynch and possibly others] that the threats would be carried out, and would cause

significant economic hardship or damage to the reputation [of Lynch and possibly others] with the intent to induce [certain parties] to perform acts against their will; The offering of benefits [to properly compensate Lynch with respect to her ownership interest in numerous corporate entities; for services rendered; and so forth] to a witness and/or members of the witness’ family with the intent to influence the witness to testify falsely or unlawfully withhold truthful testimony; The use of threats, acts of harassment, or acts of harm or injury to persons [including Kelley Lynch] or property, directed to or committed upon a witness and/or members of the witness’ family to intentionally attempt and/or actually influence the witness to testify falsely or unlawfully withhold truthful testimony; The intentional attempt to induce a witness to testify falsely or unlawfully

withhold truthful testimony; The generation and dissemination of a false, disparaging and defamatory press release and other similar statements to third persons with the knowledge, intent, and directive that such statements be disseminated by media publication and the internet throughout [the world].

Cohen’s conduct described herein was attended by circumstances of fraud, malice, and willful and wanton behavior.

Cohen and the other co-conspirators not currently named as Defendants herein (including Robert Kory, Steve Lindsay and Betsy Superfon) knowingly conducted or participated, directly or indirectly, in such enterprise through a “pattern of racketeering activity” … The acts of racketeering activity which Cohen and the unnamed co-conspirators, and the enterprise committed, attempted to commit, conspired to commit, solicited, coerced or intimidated others to commit included, inter alia: (a) Mail fraud; (b) Wire fraud; (c) Interference with commerce by threats; (d) Criminal extortion; (e) Bribing a witness; (f) Intimidating a witness; (g) Tampering with a witness.  [The witness is Kelley Lynch]

The predicate acts described herein formed a pattern of racketeering activity, were related to the conduct of the enterprise, and were related to each other as part of the common plan …

Cohen and his agents and attorneys have engaged, and are continuing to engage, in a continuous and relentless pattern of malicious and unwarranted conduct, as described more fully herein [and in Lynch’s legal documents in various related matters and elsewhere].

Judge Babcock’s December 5, 2005 order dismissing Robert Kory from this case [due to lack of personal jurisdiction] contains the following statements. The tactics and purported thuggery Judge Babcock refers to are ongoing and ineffective:  They tried to compel Ms. Lynch to participate in their project by, among other tactics, having her arrested on false pretenses and initiating proceedings to deprive her of her children. The Amended Complaint does not indicate that this purported thuggery was effective.”

RE:  JUDGE LEWIS BABCOCK’S ORDER

Only the above allegations or statements in Neal Greenberg’s Amended Complaint are factual.

UNITED STATES DISTRICT COURT, D. COLORADO.

GREENBERG ASSOCIATES. INC. v. COHEN

(D. Colo. Dec 05, 2005)

Decided December 5, 2005

GREENBERG ASSOCIATES. INC., d/b/a Agile Advisors, Inc. a Delaware corporation, TACTICAL ALLOCATION SERVICES, LLC, d/b/a Agile Allocation Services, LLC, a Delaware limited liability company, AGILE GROUP, LLC, a Delaware limited liability company, GREENBERG ASSOCIATES SECURITIES, INC., d/b/a Agile Group, a Delaware corporation, and NEAL R. GREENBERG, a Colorado resident, Plaintiffs, v. LEONARD COHEN, a Canadian citizen residing in California, ROBERT KORY, a United States citizen residing in California, KELLEY LYNCH, a United States citizen residing in California, and JOHN DOE, Numbers 1-25, Defendants.

Civil Case No. 05-cv-01233-LTB-MJW.

United States District Court, D. Colorado.

December 5, 2005

ORDER

LEWIS BABCOCK, Chief Judge

The defendant Robert Kory moves for dismissal of all claims against him on the alternate grounds that I have no personal jurisdiction over him, Fed.R.Civ.P. 12(b)(2), and that the plaintiffs have failed to state a claim against him, Fed.R.Civ.P. 12(b)(6). The motion is adequately briefed and oral arguments would not materially aid its resolution. For the reasons stated below, I find and conclude that I have no personal jurisdiction over Mr. Kory and I GRANT the motion pursuant to Rule 12(b)(2).

Because Mr. Kory has contested the Court's jurisdiction, the plaintiffs have "the burden of proving jurisdiction exists." Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995). *22 "Where, as in the present case, there has been no evidentiary hearing, and the motion to dismiss for lack of jurisdiction is decided on the basis of affidavits and other written material, the plaintiff need only make a prima facie showing that jurisdiction exists." Id.

In resolving factual questions:

The allegations in the complaint must be taken as true to the extent they are uncontroverted by the defendant's affidavits. If the parties present conflicting affidavits, all factual disputes must be resolved in the plaintiff's favor, and the plaintiff's prima facie showing is sufficient notwithstanding the contrary presentation by the moving party. However, only the well-pled facts of plaintiff's complaint, as distinguished from mere conclusory allegations, must be accepted as true.

Id. (citations omitted).

I. Allegations The allegations of the Amended Complaint are substantially the following. In 1997, the defendant Leonard Cohen, a resident of California, retained the plaintiffs, directed by the plaintiff Neal Greenberg and headquartered in Boulder, Colorado, to create for him charitable trusts and to manage the assets placed into those trusts. (Throughout the Amended Complaint and their briefs, the plaintiffs refer to themselves individually and in the aggregate as "Greenberg." They do not reveal the nature of their relationships to each other. I have attempted to be as precise as the pleadings and the record will allow.) Mr. Cohen allegedly drew extravagant sums from the trusts, depleting the principal amounts and impeding the plaintiffs' efforts successfully to invest the funds in profitable ventures. The defendant Kelley Lynch, Mr. Cohen's manager, oversaw and had power of attorney over, all of Mr. Cohen's financial dealings. Mr. Greenberg allegedly repeatedly warned Ms. Lynch and Mr. Cohen that Mr. Cohen was spending too much and that, absent a change of habit, he would become destitute. *33 In October, 2004, Mr. Cohen and Ms. Lynch allegedly parted ways and began to issue competing directives to the plaintiffs. They each blamed the other for Mr. Cohen's financial distress. Mr. Cohen claimed that Ms. Lynch had deprived him of substantial sums of money. Thereafter, Mr. Cohen and Mr. Kory, Mr. Cohen's personal attorney and a California resident, allegedly conspired to extort the lost sums from the plaintiffs by tarnishing the plaintiffs' reputation, asserting spurious claims, and coercing a settlement from the plaintiffs' insurance carrier. This they intended to accomplish by using Mr. Cohen's fame as a prominent recording artist to publish defamatory statements about the plaintiffs to the press. They tried to compel Ms. Lynch to participate in their project by, among other tactics, having her arrested on false pretenses and initiating proceedings to deprive her of her children. The Amended Complaint does not indicate that this purported thuggery was effective.

Mr. Kory sent an allegedly defamatory demand letter to Mr. Greenberg's attorney, wrongly accusing the plaintiffs of fraud and various breaches of fiduciary duty. After the plaintiffs filed this lawsuit, Messrs. Cohen and Kory allegedly published defamatory statements on Mr. Cohen's web site, blaming the plaintiffs for the lost monies, asserting that the plaintiffs had wrongfully permitted Ms. Lynch to withdraw unauthorized sums, and asserting that the plaintiffs had provided Mr. Cohen with fraudulent accounting records. Mr. Cohen and Ms. Lynch now dispute entitlement to the funds remaining in the trusts. Each seeks immediate acquisition of the funds.

Mr. Kory allegedly submitted to the jurisdiction of this Court by his purposeful and repeated written and telephonic communications with the plaintiffs and his direction of Mr. Greenberg's activities, performed in Colorado. Additionally, Mr. Kory allegedly reserved a *44 conference room at the Denver International Airport and scheduled a meeting, which he, Mr. Greenberg, Mr. Cohen, and Mr. Greenberg's counsel were to attend. Messrs. Kory and Cohen allegedly failed to appear for the meeting, which Mr. Greenberg attended.

II. The record

A. Kory affidavit

Mr. Kory has provided two affidavits replete with refutations of the plaintiffs' jurisdictional allegations. He is licensed to practice law in California, where he resides and has his law practice. He last traveled to Colorado in 1985 or 1986 for a ski vacation. He has no business or property interests in Colorado.

In the fall of 2004, Mr. Cohen retained Mr. Kory to investigate suspected losses from an entity denominated Traditional Holdings, LLC ("Traditional"), which the plaintiff, Tactical Allocation Services, LLC ("Tactical") managed for Mr. Cohen under Mr. Greenberg's direction. In the ensuing weeks, Mr. Kory contacted Tactical's Boulder, Colorado office on two or three occasions. Tactical responded by sending information about Mr. Cohen's accounts to Mr. Kory in California. Thereafter, Mr. Kory communicated predominantly with Tactical's legal counsel, Sherab Posel, whom Mr. Kory believed to be resident in New York. Though he engaged in at least one email exchange with representatives of Tactical located in Boulder, Mr. Kory communicated Mr. Cohen's asserted legal claims against Tactical and related requests for information to Mr. Posel, who responded on letterhead imprinted with New York addresses.

In April, 2005, Mr. Kory and Mr. Posel scheduled a mediation for June 5, 2005, which was to occur in Colorado. Mr. Kory reserved a conference room at a hotel near the Denver airport in anticipation of that meeting. After Mr. Posel disputed the veracity of Mr. Cohen's *55 claims and threatened litigation, Mr. Kory cancelled the room reservation in Colorado and remained in California.

B. Barnett affidavit

Timothy Barnett, Tactical's Vice President who works in Boulder, has produced correspondence — emails and letters — between Mr. Kory and representatives of the plaintiffs in Colorado and New York. Numerous emails and letters between Mr. Kory and Mr. Barnett throughout the period beginning in November, 2004 and ending in June, 2005 addressed Mr. Kory's requests for information about the accounts that Tactical managed for Mr. Cohen and Tactical's efforts to comply with those requests. Contrary to Mr. Kory's assertion, these communications number in the dozens. Many of the communications indicate that copies were sent to Mr. Greenberg and Mr. Posel, among others. Emails exchanged on December 15 and 16, 2004 detailed plans for a conference call involving Messrs. Kory, Barnett, and Posel. The three set up another conference call in March, 2005. Other emails reference telephone calls between Mr. Kory and Mr. Barnett and calls and conversations between Mr. Kory and Mr. Posel.

In an April 10, 2005, twenty-seven page demand letter to Mr. Posel, Mr. Kory asserted claims against "the Agile Group, Neal Greenberg and his partners" on Mr. Cohen's behalf. Mr. Kory made repeated references to the "several telephone conversations and e-mails regarding" the claims that he and Mr. Posel had previously exchanged. He invited a further response from Mr. Posel. Thereafter, Mr. Kory and Mr. Barnett exchanged emails only discussing the scheduling of a mediation meeting for June 5, 2005. Mr. Posel and Mr. Kory continued to communicate in writing about Mr. Cohen's allegations. On June 4, 2005, Mr. Kory wrote to Mr. Posel by email cancelling the mediation, but making no reference to the lawsuit that the plaintiffs had purportedly *66threatened. In a June 9, 2005 email, Mr. Kory expressed surprise at the contents of a draft complaint that Mr. Posel had sent him the day before.

By letter on June 2, 2005, Mr. Kory sent to Mr. Barnett two checks for deposit in Mr. Cohen's accounts. On June 7, Mr. Barnett responded in writing, noting that Mr. Cohen had terminated his relationship with the plaintiffs.

III. Discussion

"To obtain personal jurisdiction over a nonresident defendant in a diversity action, a plaintiff must show that jurisdiction is legitimate under the laws of the forum state and that the exercise of jurisdiction does not offend the due process clause of the Fourteenth Amendment." Far West Capital, Inc. v. Towne,46 F.3d 1071, 1074 (10th Cir. 1995). Because, as set forth below, I conclude that the Colorado long-arm statute does not reach Mr. Kory, I need not consider the constitutional question. The plaintiffs argue that Mr. Kory has submitted to jurisdiction in Colorado by the "commission of a tortious act within this state." Colo. Rev. Stat. § 13-1-124(1)(b). Colorado courts have held that the tort provision of the long-arm statute may be satisfied either 1) when tortious conduct occurs in Colorado, or 2) when tortious conduct initiated in another state causes injury in Colorado. Wenz, 55 F.3d at 1507; Classic Auto Sales, Inc. v. Schocket, 832 P.2d 233, 235-236 (Colo. 1992).

The plaintiffs first argue that Mr. Kory committed tortious conduct in Colorado. Directing into Colorado communications by which a tort is committed constitutes conduct sufficient to satisfy the statute if the tort is completed by the plaintiff's receipt in Colorado of the communications. Id. at 236; Broadview Financial, Inc. v. Entech Management Services Corp., *77859 F. Supp. 444, 448 (D. Colo. 1994). However, merely communicating with a person resident in Colorado is, in itself, insufficient to bring a defendant within the reach of the Colorado statute. Archangel Diamond Corp. v. Lukoil, ___ P.3d ___, 2005 WL 3097588 (Colo. 2005).

Mr. Kory's several communications with Mr. Barnett concerned Mr. Kory's attempts to elicit information from Mr. Barnett that would prove useful to Mr. Cohen. Though the plaintiffs feel that Mr. Kory solicited their cooperation in bad faith — Mr. Kory used much of the information the plaintiffs provided to construct claims against them, even as he repeatedly commended them for their diligence — the gravamen of their claims against Mr. Kory is that he conspired to defame them and to extort money from them by asserting frivolous claims. Mr. Kory directed to Mr. Posel in New York, and not to Mr. Barnett in Colorado, the communications by which he allegedly accomplished those torts. The plaintiffs have not argued — nor does it appear from the record — that the exchange of information and documents between Mr. Kory and Mr. Barnett was tortious. Nor could the plaintiffs premise liability on Mr. Kory's later-reneged reservation of a conference room in Colorado. I am left to determine whether the plaintiffs have suffered an injury in Colorado as a result of Mr. Kory's allegedly tortious acts. Wenz,55 F.3d at 1507. Tortious-activity jurisdiction obtains under the statute when "the injury itself" occurs in Colorado. McAvoy v. District Court, 757 P.2d 633, 635 (Colo. 1988).

Further, the injury in the forum state must be direct, not consequential or remote, and loss of profits in the state of plaintiff's domicile is insufficient to sustain long-arm jurisdiction over a nonresident defendant. Hence, when both the tortious conduct and the injury occur in another state, the fact that plaintiff resides in Colorado and experiences some economic consequences here is insufficient to confer jurisdiction on a Colorado court. Amax Potash Corp. v. Trans-Resources, Inc., 817 P.2d 598, 600 (Colo.Ct.App. 1991) (citations *88 omitted).

The plaintiffs argue that Mr. Kory directed the injurious consequences of his wrongful activity toward Colorado because they, who have an office here, were the intended recipients of the harm. They cite D D Fuller CATV Const., Inc. v. Pace,780 P.2d 520(Colo. 1989) for the proposition that Mr. Kory could, therefore, have reasonably anticipated being haled into court in Colorado. However, they have not addressed the prior question where the injury occurred. Nothing in the record, Mr. Barnett's correspondence from Colorado included, appears to demonstrate that the plaintiffs suffered an injury in Colorado. Indeed, the only business the plaintiffs are alleged to have lost was transacted with Mr. Cohen, who resides in California. Accordingly, it is ORDERED that

1) Robert Kory's motion to dismiss pursuant to Fed.R.Civ.P.12(b)(2) [13] is GRANTED; and

2) the plaintiffs' claims against Mr. Kory are dismissed.

EXHIBIT

MACLEAN’S ARTICLE

August 17, 2005

A 'devastated' Leonard Cohen

The Canadian music icon is broke and the lawsuits are flying. It's a sordid tale involving allegations of extortion, SWAT teams, forcible confinement, tax troubles and betrayal.

KATHERINE MACKLEM

I said there's been a flood
I said there's nothing left
-- Leonard Cohen, from The Letters, on his album Dear Heather

Take an iconic artist, mix in missing millions, hints of tantric sex, a lawsuit replete with other salacious details, and a ruptured relationship with a long-time, trusted associate, and you've got the makings of a Hollywood blockbuster. Except in the case of Leonard Cohen, it's a true tale, with the bizarre twist of a Tibetan Buddhist suing a Zen Buddhist, Cohen. For the 70-year-old poet, singer and songwriter, it's a nasty, rapidly escalating legal battle that on the one hand accuses him of conspiracy and extortion, and on the other has him accusing both his highly trusted personal manager and long-time financial adviser -- the Tibetan Buddhist -- of gross mismanagement of his financial affairs. The case exposes not only private details of Cohen's finances, but also a dramatic tale of betrayal.

The conflict, which Cohen and others have tried to keep out of public view, has left him virtually broke -- he's had to take out a mortgage on his house to pay legal costs -- and facing a multi-million-dollar tax bill. But the artist, who is soon to release a new album with his collaborator -- and current girlfriend -- Anjani Thomas, is today remarkably calm about the potentially embarrassing conflict. Still, when he discovered last fall that his retirement funds, which he had thought amounted to more than $5 million (all figures U.S.), had been reduced to $150,000, he wasn't so sanguine. "I was devastated," Cohen says. "You know, God gave me a strong inner core, so I wasn't shattered. But I was deeply concerned."

So far, only one formal court filing involving Cohen has been made. In June, Boulder, Colo.-based Neal Greenberg, Cohen's investment adviser of almost a decade, launched a hyperbole-laden claim in Colorado against Cohen, who lives in both Los Angeles and Montreal. The suit accuses Kelley Lynch, who was Cohen's manager and is also named in the suit, of siphoning money from the songwriter. It also accuses Cohen and his lawyer Robert Kory of conspiracy, extortion and defamation. It alleges the two, in an attempt to recover at least some of Cohen's lost money, threatened to besmirch Greenberg's reputation and concocted a plan to force Greenberg to give Cohen millions of dollars.

The suit paints an almost preposterous picture of Cohen as an artist who led a lavish celebrity lifestyle and then turned bitter and vindictive when he discovered the money had run out. For example, the suit quotes Lynch describing how Cohen demanded she discuss business matters while he soaked in a bubble bath, and how later he was somehow involved in calling a SWAT team to her home, where she was handcuffed and forcibly taken to a psychiatric ward while in her bathing suit.

None of the allegations have been proven in court. Cohen is expected to file a countersuit this week. More lawsuits are likely to join the fray. And Lynch, who has sent turgid, raw and wrathful emails hither and yon, is threatening to sue just about everyone.

The conflict was triggered last fall when Cohen was tipped off by an insider that a lot of money was missing from his accounts. All that remained of his retirement savings was the $150,000, funds that today he can't get at as a result of the tangled legal web he finds himself in. Greenberg's suit portrays the soulful songwriter as an artist who paid little attention to his financial affairs and so was easily duped by a conniving personal manager. Cohen says he tried quietly, and confidentially, to find out from his various managers where the money had gone. Cohen calls the case "a tragedy," suggesting he was exploited by trusted advisers. He uses words like "greed, concealment, and reckless disregard," and says firmly he did nothing wrong. "I can assure you, within reason, I took every precaution except to question the fidelity of my closest associates."

Untoil Cohen fired her last fall, Kelley Lynch had been his personal manager for almost 17 years. Back in 1988, she'd been working as an assistant to his then-manager, who died that year. Because she was knowledgeable about Cohen's business affairs and recording contracts, he had her take over. Over the years, the two developed a personal and professional relationship. Fifteen years ago, they had a brief affair. "It was a casual sexual arrangement. It was mutually enjoyed and terminated," he says. "I never spent the night." The end of the affair didn't affect their bond. "We were very, very close friends," Cohen says today. "I liked her immensely. Our families were close -- she was helpful when I was raising my daughter; I employed her father." He even named her in his living will, giving her the power to decide, in certain circumstances, if he would live or die. He handed her vast powers of attorney. He trusted her implicitly. And he believed the relationship was mutual. "She wrote dozens of emails to me, thanking me for my help. We used to correspond regularly, relentlessly." He says that in 2004, while he was recording his most recent album, Dear Heather, with a small team at his home-recording studio, Lynch would come by almost daily. "People were very tight. Kelley was taking care of business, I was producing the album. It was all taking place in this little duplex and the garage that was converted into a studio. Kelley would come over, and I would generally prepare lunch for everyone."

The cosy arrangement was shattered one day last October when a young man, the boyfriend of a casual employee of Lynch, spoke to Cohen's daughter, Lorca, who owns an art deco furniture store and who lives downstairs from her father in the L.A. duplex he owns. "Your father really ought to look into his accounts, because he might be surprised at what he finds," he said. Lorca told him that her father trusted everyone involved and that besides, "he's about to retire, anyway." As Cohen senior tells the story, the young man replied, "He won't be able to retire."

Alarmed, Lorca called her father, who was in Montreal. Within a couple of days, he returned to Los Angeles and immediately went to his bank. There he discovered, as he puts it, "improprieties." Lynch had linked her American Express bill directly to his personal chequing account, he says, and just days before his visit to the bank, he'd paid a $75,000 Amex bill on her behalf. He never learned what purchases the card had been used for, but says the credit card company reimbursed him. Cohen immediately removed Lynch's signing powers on the accounts. The next day, Cohen told Lynch she no longer had access to the bank accounts and he fired her. That afternoon, Cohen says the bank notified him that Lynch went to a different branch and attempted to withdraw $40,000 from one of his accounts. He then called a lawyer and brought in a forensic accounting firm, Moss-Adams, which, in an investigation of all of Cohen's holdings, discovered "massive improprieties." In all, the accountants discovered about $8.4 million had over time disappeared from his holdings, Cohen says. His retirement funds had been virtually depleted.

Neal Greenberg, a banker with a thriving investment firm, had been brought in by Lynch to manage Cohen's money in 1996, two years after Cohen went up Mount Baldy to study to be a Rinzai Zen Buddhist monk. But now, he was worried. Over two decades, Greenberg had built a successful company, the Agile Group, and managed more than half-a-billion dollars of other people's money. He enjoyed, as he says in his suit, a "spotless professional reputation." And suddenly, here was Leonard Cohen, not just a prized client but one with a high profile, suggesting that Greenberg was party to the disappearance of Cohen's retirement savings.

Over the years, he says, he warned Cohen that his funds were being rapidly depleted, but it seemed the artist paid no heed. And now, Cohen and his lawyer, Kory, claims the Greenberg suit, were threatening "that Cohen would go out on tour to promote his new album and give interviews to reporters in which he would insinuate that he was touring because he had been bankrupted by improprieties by Greenberg and other financial advisers." Greenberg must have envisioned his business and his career in absolute tatters. He sued.

Greenberg's lawsuit lays out the business background to the dispute. Cohen's success as a singer and songwriter generated millions in royalties, the suit says, and in the 1990s, Lynch, as Cohen's trusted personal manager, began to investigate auctioning his intellectual properties, including copyrights to his song catalogue and continuing royalties for his songs. Lynch, along with a tax consultant named Richard Westin, arranged two deals for Cohen's properties. The transactions were eventually completed, one in 1997, the other in 2001, with Sony Music. From the first sale, about $5 million was transferred to trusts that Greenberg had been enlisted to manage and that would protect Cohen from an upfront tax hit. Greenberg says he invested the proceeds wisely, making lots of money for the trusts. But Greenberg also claims that Cohen's "consistent and prolific spending" to support "his extravagant 'celebrity' lifestyle" eroded the gains he had made on his client's behalf.

The second sale of Cohen's intellectual property, in 2001, was for $8 million. With Westin, Lynch put that money into a newly formed company named Traditional Holdings LLC that also was intended to shield Cohen's earnings from a major tax hit. Lynch was named as owner of 99.5 per cent of the company, leaving Cohen holding just 0.5 per cent. Greenberg alleges that Cohen, well aware of the structure and its dangers, signed off on it. Westin had explained to Cohen, the suit says, that "the plan would only work if Cohen and Lynch maintained (as they had in the past) a long-term relationship of personal and professional trust." Traditional Holdings could also issue loans to its owners, Lynch and Cohen.

As soon as the new company was in place, "Greenberg was immediately alarmed by Cohen's desire and tendency to treat this company [Traditional Holdings] like his personal piggy bank," the lawsuit alleges. It goes on to claim Cohen took a $1-million advance on the second sale of assets to Sony, Lynch took a commission of $1.1 million, and fees for lawyers and accountants ate up another $714,000. And then, over the next few years, Lynch regularly borrowed money from the Traditional Holdings account in amounts of tens of thousands of dollars, sometimes for herself, sometimes acting for Cohen. The lawsuit claims that while Greenberg sent a monthly email statement to Cohen, it was always Lynch who told Greenberg to release the loans.

The Greenberg suit claims Lynch, always acting as Cohen's agent, told Greenberg what to do regarding the funds. For instance, Lynch instructed Greenberg to send Cohen the monthly email status reports, but Greenberg says she directed him to leave out day-to-day activities and the status of Traditional Holdings loans. Because the loans were to be repaid, Greenberg included them in the statements as assets, which meant that it appeared as though nothing had been taken out.

Greenberg, who declined to comment for this article, claims in his suit he repeatedly stressed to Cohen that his spending was seriously draining his investments. In one warning letter, Greenberg told Cohen that Traditional Holdings had only $2.1 million left. Considering how quickly the money was leaving the account, Greenberg wrote, "I think you should consider your situation quite desperate." It's not clear if Cohen ever received this letter. On this, Cohen and Greenberg agree: they say many of Greenberg's attempted communications with Cohen were intercepted by Lynch.

On other points, Cohen disagrees. He was vitally interested in his financial affairs, he says. "It wasn't that I wasn't involved -- on the contrary, I took great pains to pay these professionals well and to solicit their advice and to follow it," he insists. "And, I was receiving a report every month from Neal Greenberg indicating that my retirement savings were safe." Cohen insists he was not made aware that Lynch had been named the majority owner of Traditional Holdings; instead, he says that in an early description of the company's structure, he had been told that his two children, Lorca and Adam, would be its principal owners. He says he was shocked to learn that Lynch had almost complete ownership. The mistake Cohen admits to is that "I paid close attention to everything except the possibility that my closest associate would embrace any irregularities in the discharge of her duties."

Cohen also says he learned only recently that the two sales of his intellectual property to Sony were unnecessary. He understands now that those properties earned roughly $400,000 a year, before taxes. That was plenty for him to support what he calls his modest lifestyle. Cohen accuses Lynch of creating the deals in order to boost her own income. He paid her 15 per cent of his income, which generally earned her $90,000 a year, he says. With the sales of his intellectual property bringing in revenue in the millions, it boosted her income to seven figures.

Greenberg's lawsuit becomes more disturbing as it describes what happened after Cohen realized he'd lost millions of dollars. Greenberg says Cohen pressured him to go after his firm's insurance company for the money to repay him. "Be a man," Cohen told Greenberg, the suit says. By threatening his reputation, it appeared to Greenberg that Cohen, on Kory's advice, had decided to target Greenberg's and his insurance company's deep pockets. Then, alleges the lawsuit, Cohen and Kory began to pressure Lynch to join them in "their extortion scheme." From November 2004 to April 2005, the lawsuit says, Kory repeatedly let Lynch know, sometimes directly, sometimes through friends or other intermediaries, that Cohen was ready to "forgive" Lynch's obligations to him, and that she in fact could receive a hefty cut of "whatever funds could be extorted from Greenberg and other advisers with her co-operation."

Greenberg's suit alleges that when Lynch refused to participate, Kory and Cohen vowed to "crush her." It goes on to say their "tactics to terrorize, silence, or disparage Lynch" included threatening her that she would go to jail, and "paying two paroled convicts to make statements that they had observed Lynch's older son brandishing a gun and threatening to kill someone."

Lynch's response, to all of this has been bitter, scattered and in some cases difficult to comprehend. In a rambling exchange of emails with Maclean's last week, she denied any wrongdoing. She also declined to discuss the Agile Group's lawsuit, describing it as "bogus" and "slanderous," while promising to file her own complaints against Cohen and other principal players in the case. She added her phone had been disconnected because she lacked money to pay the bills.

In the meantime, she's been showering Cohen and others with invective-laden emails that alternately voice misery and hurl accusations at friends and former colleagues. Many of these lament losing custody of her 12-year-old son, Ray, to his father, music producer Steve Lindsay. A few devolve into the outrightly bizarre. One missive, sent July 17 and obtained by Maclean's, invites Greenberg in highly explicit terms to Lynch's home for an evening of tantric sex. "First I want to study the inner channels with you," it says. "Why not -- let's see who is better at tantric sex -- you or me."

So troubling have the messages become that several people who know Lynch fear she's become unhinged. "I'm afraid she's suicidal," says Lindsay, her ex-husband, adding that in his judgment she's been acting erratically for the better part of a year. Cohen too sent Lynch a message last fall spelling out his concern in verse: You can't tell the difference between a threat / and a helping hand, he wrote. You can't tell the difference between a threat / and a solemn warning / from one of the few people / who still cares about you and your family.

Lynch's apparent troubles have had punishing legal consequences. Lindsay has obtained a temporary restraining order that prevents her from visiting her son. Tara Cooper, a former employee of a greeting card company Lynch started while still in Cohen's employ, has taken out a similar order after alleging that Lynch sent threatening emails and harassed her by phone. And two of her creditors -- upscale department stores Neiman Marcus and Bergdorf Goodman -- have filed collections claims against her in Los Angeles Superior Court.

This is the mess that Leonard Cohen -- a man many believe floats a few inches above the ground -- finds himself in. These days, he's Zen-like. In the course of a long interview by phone from his home in Los Angeles, the man sometimes called the poet laureate of pessimism sounded almost bemused. "What can I do?" he asks. "I had to go to work. I have no money left. I'm not saying it's bad; I have enough of an understanding of the way the world works to understand that these things happen."

His first choice of action when he learned his money was gone, he says, was to not do anything. Aware of how painful litigation could be, he says he wanted no part of it. "I said, 'I can walk away with nothing.' I said, 'Let me start again. Let me start fresh at 70. I can cobble together a little nest egg again.' " But he ran into a glaring, immediate problem: had he done nothing, he would have legally been responsible for the funds that had gone missing. And on that money, he'd owe millions in taxes, a sum he no longer had.

His next step, "his second-best choice," was to negotiate with his advisers about the missing money. He approached Lynch, asking her to open her books. "She resolutely and unconditionally refused to open her books to any scrutiny whatsoever and instead began a bizarre email campaign to discredit me in some kind of way, which has gone all over the place," Cohen says, adding that he's launching a lawsuit this week with great reluctance. "I don't want anybody hurt. It's not my nature to pursue and to contend with people that way." Cohen says all he wants is to find out where the money went. "I'm not accusing her of theft," he says of Lynch. Still, his countersuit will likely describe how money was removed from his accounts.

Cohen appears to have been blindsided by Greenberg's lawsuit. He insists that he and Kory were in the midst of mediation with Greenberg when the financial adviser's lawsuit was suddenly and unexpectedly filed. He says the mediation had been confidential, at Greenberg's urging, as he feared for his reputation. In an email to Greenberg, Cohen urges him to make good. "Dear Neal, I believed in you. I depended on you," Cohen wrote in November 2004. "When things went wrong, does it make any sense that you would make your warnings available to the only person in the cosmos who had an interest in deceiving me? A single, simple email informing me that my accounts were being emptied would have been enough. I answered EVERY SINGLE EMAIL you ever sent me. Fortunately, I have them all.

"Face up to it, Neal," the email continues, "and square your shoulders: You were the trusted guardian of my assets, and you let them slip away . . . Restore what you lost, and sleep well." In his sign-off, Cohen delivered as much a piece of advice as his own philosophy: "Put this behind you and it will dissolve." There's an irony here, that a man who has struggled much of his life to distance himself from the material world now, at 70, finds himself in an intense battle with it. Still, he's not defeated. "This has propelled us into incessant work," he says of himself and Thomas. He exudes optimism about their new CD. "It's one of the best albums I've heard." It's not closing time quite yet.

With CHARLIE GILLIS and BRIAN D. JOHNSON

http://www.leonardcohenforum.com/viewtopic.php?t=4283

On Tue, Oct 28, 2014 at 2:22 PM, Kelley Lynch <kelley.lynch.2010@gmail.com> wrote:

Norman Posel,

Just confirming your email (Boies Schiller) advising me to explain an attorney that Boies Schiller the evidence, understood Cohen owed me millions, and advised me to find a lawyer and explain to him that he could help me "take down" another Hollywood fraud. Obviously you meant legally. LAPD notes in their report that I said "legally." This man will say anything. The evidence concealed from jurors is extraordinary.

Kelley Lynch

On Tue, Oct 28, 2014 at 2:17 PM, Kelley Lynch <kelley.lynch.2010@gmail.com> wrote:

IRS, FBI, DOJ, and FTB,

I previously mocked up the appellate brief with some of my comments and corrections.

Kelley

IN THE APPELLATE DEPARTMENT OF THE

SUPERIOR COURT, COUNTY OF LOS ANGELES

STATE OF CALIFORNIA

THE PEOPLE OF THE STATE OF CALIFORNIA  SUPERIOR COURT
             CASE NO.

Plaintiff and Respondent,    TRIAL COURT NO: 2CA04539-01

  vs.

KELLEY LYNCH,

Defendant and Appellant.

APPEAL FROM THE HONORABLE JUDGE VANDERET LOS ANGELES SUPERIOR COURT

APPELLANTS OPENING BRIEF

STATEMENT OF THE CASE

On or about January 5, 2012, a complaint was filed charging Defendant and Appellant Kelly Lynch, (hereinafter “Kelley Lynch" or “Miss. 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.)

STATEMENT OF THE FACTS

Mr. Cohen is a songwriter and a singer (Reporters transcript, hereinafter “R.T.” page 49, line 13). Mr. Cohen confirms that he knows Ms. Lynch who worked for him as a personal manager for about 17 years. (R.T.P. 49. Ls. 24-25.) Cohen testified that they had a brief intimate relationship (R.T.P. 49, ls. 28-29.) Ms. Lynch was allegedly 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 was apparently alarmed by Ms. Lynch’s voice mail messages and emails. “ I was concerned about my safety and the safety of my children and grandchildren “ (R.T.P. 54, ls. 19-22.)

According to Leonard Cohen’s testimony with respect to 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” (R.T.P. 59, ls. 3-4). “She often accused me of being on drugs, particularly when her voice was allegedly slurred and intoxicated” (R.T.P. 59, ls.15-17). “Her e-mails often threatened to take me down” (R.T.P. 60, ls. 12-13).

Nikhil Ramnaney sets the record straight:

Around 2005, that’s when things began to change ... there were questions about the IRS and taxes ... He got his attorneys involved ... and his attorneys had a plan., The plan was to get Ms. Lynch to work with Mr. Cohen and to pin the blame on ... She said no, I’m not going to falsify anything. I’m not going to go out and do what you tell me to do, and she refused ... Well, she’s not going to help us. That means she’s going to hurt us. So they went after Ms. Lynch the best way they knew how. Using the legal system ... have done everything in their power to harm Ms,. Lynch ... she’s lost everything ... her job, her money, her child, all orchestrated ... if they ruin her credibility, well, that helps Mr. Cohen. And they have done everything in their power to hurt Ms. Lynch’s credibility. (R.T.P. 45, ls, 1-28.) They wanted to go and they went and tried to hurt her economically and to put a restraining order so they couldn’t have any contact during the litigation. That was their intent. That was their purpose. (R.T.P. 46, ls. 9-13.)

“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.” The Colorado order is a civil harassment order that Miss Lynch requested at the hearing. This was registered in California, on May 25, 2011, as a domestic violence restraining order although Kelley Lynch and Leonard Cohen were never in anything that even remotely resembled a “dating relationship.”

Exhibit 3 for identification is the restraining order from 2005 (R.T.P. 70, ls. 1-3). 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, ln. 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 me Phillip 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.)

NOTE: Mick Brown/UK Telegraph has now confirmed that he was in receipt of the Grand Jury Transcripts and Cohen's statements were presented to the Grand Jury. There was confusion re. statements vs. testimony. Cohen's statements were absolutely used in Phil Spector's prosecutors' motions.

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). 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).

NOTE: Kelley Lynch did not handle anything having to do with the corporate structures, corporate books and records, tax strategies, financial advice or investments, accounting, etc. Leonard Cohen was fully represented by experts in their field - who were lawyers, accountants, etc.

(Cohen alleged that) 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 and answered yes - he later acknowledged lying (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’s attorneys are Robert Kory and Michele Rice (R.T.P. 283, ls. 15-21).
Mr. Cohen obtained a civil harassment order in 2008 from Colorado (R.T.P. 298, ls. 21-28.) The order was not registered in California until 2011 (R.T.P. 300, ls. 22-23). It was registered in Los Angeles as a domestic violence order although Cohen and Lynch were not in a dating relationship, ever (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.TP. 315, ls. 3-4).

People’s 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 alleged that she received approximately 95 e-mails. Ms. Lynch in the e-mail said it was a fraudulent restraining order and she needed 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 Company, Inc., Traditional Holdings, LLC, LC Investments, LLC. There were problems with the Stranger Music deal that also 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 1984 when she was employed by the law firm of Machat and Machat. She began working with Mr. Cohen after Mr. Machet died (R.T.P. 448, ls. 13-24). She worked from as Cohen’s personal, manager from April 1988 until 2004. In several e-mails Ms. Lynch was requesting to be paid in regard to commissions, deals etc. (R.T.P. 457, ls. 11-28). At no time during 2004 through 2005 did the police contact Ms. Lynch regarding the threatening of Mr. Cohen and his children or Mr. Kory (R.T.P. 466, ls. 1-8). There are no threats and LAPD was clear in their report - the emails were generally requests for tax information.

“I spoke to Bill Betzer on April 15, 2005 after I paid my taxes in full (R.T.P. 463, ls. 20-23). I did receive an email -- I mean I did receive a phone call from Agent Kelly Sopko of the Treasury regarding this matter. And I did meet with her and her partner, whose name is Brandon” (R.T.P. 464, ls.13-16). “Well, I think I attached Agent Sopko’s email to me, saying that she found an appropriate individual for me, which is Agent -- to report this to, which is Agent Luis Tejeda of the IRS Unit in Los Angeles” (R.T.P. 468, l. 24, 469, ls. 11-13, 18-26). “I was never served with a lawsuit.” “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 for - 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 never served or notified the default judgment on May 15, 2006 as she was homeless. (R.T.P. 525, ls. 12-17.) The prosecutor and Cohen (who altered the voicemails with a sound engineer - sound, speed, and volume - alleged that: Not all of those voicemails were when Ms. Lynch was sober. Prosecutor: You were sober when you made those, correct? There were some when I drank too much. Leonard Cohen has testified that I was slurring, right (R.T.P. 527, ls. 10-15). And I found the sound distorted. I couldn’t tell (R.T.P. 527, ls. 24-25).

ARGUMENTS

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 certainty. The jury must therefore have reasonably rejected all that undermines confidence. Accordingly, in determining whether the record is sufficient in this respect, the appellant court can give credit only to “substantial evidence.” i.e., evidence that reasonably inspires confidence and is of solid value.”

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; and, 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.

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 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.

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) .there were words uttered through a twitter communication. The recipient of the tweets was a public figure. 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 the 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 Miller test was developed in the 1973 case Miller v. California. It has three parts:
Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest; whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. The work is considered obscene only if all three conditions are satisfied.

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. Leonard Cohen has published what is known as the most obscene book ever published in Canada, “Beautiful Losers.” He has written lyrics such as “don’t go home with your hard on” and “give me crack and anal sex.” Cohen recently gave his blessings and interviews to a biographer who has a chapter titled “Children, Taxes, and Lost Pussy.” Leonard Cohen is not offended by obscenities and most certainly not by expletives, which is what Ms. Lynch used out of extreme frustration.

The evidence proffered in this case is for a legitimate business purpose. Ms. Lynch 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 rebutts a key element in the Prosecution’s case.

Furthermore there was also evidence that Ms. Lynch (and the State of Kentucky and IRS) received documents like the K-1s from other sources (Leonard Cohen, as the sole owner of LC Investments, LLC) that were not the property of Ms. Lynch. This is another legitimate reason for Ms. Lynch to request tax records/information from Mr. Cohen which included requests to rescind the illegal K-1s that are evidence of felonies.

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 dispute. Both versions of the events are contradictory. As to the totality of circumstances, 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, financial data, royalty statements, accounting information, etc. for her personal records and tax filing purposes.

The un-corroborated 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 IRS Agent Luis Tejeda to testify on behalf of Ms. Lynch. The witness would be able to testify as to the tax predicament the Ms. Lynch was in; the fact that the 2005 refund could not possibly close the IRS case re. the allegations Lynch brought to Tejeda’s attention in 2007; the illegal K-1s from LC Investments, LLC; whether a 1099 or tax documents (IRS filing and reporting requirements) could violate a restraining order - as Kory and Rice have alleged, etc. She had no other choice but to insist that she obtain tax documents to clear her name.

F. 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 not served the California registered order (and was under the impression the Boulder order expired). If indeed that is the case there would be no way that the proof of service would be true. No proof of service was attached to the registered order. Therefore use of the restraining order in California would not be valid 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 $150,000.00 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 and his theft from her in the millions, tax fraud, etc.

Another extremely important point is that there was mention that Mr. Cohen had lied about Mr. Phil Spector to the grand jury. In fact, Leonard Cohen’s statements were apparently presented to the Grand Jury. His statements regarding Phil Spector and a gun incident appeared in the prosecutors motions in the Phil Spector trial. Unfortunately, that version of the gun incident is contrary to the two additional versions of Leonard Cohen’s Phil Spector gun stories in this trial alone. Therefore, there are three versions of Leonard Cohen’s gun story incident re. Phil Spector before LA Superior Court. The versions involve a gun to the head, a gun to the neck, a gun to the chest, an automatic weapon, and a semi-automatic weapon. Additional versions in the news media involve a bottle of wine in one hand. The prosecutors in Phil Spector’s trial omitted that detail. All of this will be addressed more fully in Kelley Lynch’s Writ of Habeas Corpus - as will every lie and perjured statement made by prosecutor Sandra Jo Streeter, Leonard Cohen, Robert, Kory, Michelle Rice, and Captain Jack Horvath.

The Prosecutor’s office for whom Deputy City Attorney Streeter works (in the Domestic Violence Unit although Lynch and Cohen were not in a dating relationship and there is no domestic violence), together with the District Attorney’s office, have a vested interest in making sure that the prosecution of Mr. Spector remains intact. They clearly do not want the verdict overturned. The District Attorney failed to prosecute Mr. Cohen for fraud. Prosecutor Alan Jackson appears to be in charge of the Major Fraud Unit that would technically prosecute individuals for fraud, theft, etc. over $300,000. In this instance, Leonard Cohen has stolen millions from Kelley Lynch. 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. An objection would not have reversed the inconceivable harm Streeter created for Kelley Lynch - based on lies, concealment of exculpatory evidence, etc.

II. THE APPELLANT SHOULD HAVE BEEN ACQUITTED ON THE CHARGES DUE THE INSUFFICIENCY OF EVIDENCE

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 are 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 and essentially blame other parties for Leonard Cohen’s wrong doing and tax problems.

CONCLUSION

Based on the above it is respectfully requested that the instant case be overturned and dismissed.

Dated: 17 December 2012   Respectfully Submitted

Francisco A Suarez
   Attorney for Appellant

On Tue, Oct 28, 2014 at 2:14 PM, Kelley Lynch <kelley.lynch.2010@gmail.com> wrote:

cc: Francisco Suarez, Esquire

On Tue, Oct 28, 2014 at 2:09 PM, Kelley Lynch <kelley.lynch.2010@gmail.com> wrote:

Jeffrey,

I thought you might want to review these documents since the proxy lawyer arguing Cohen's case has addressed them and you are the attorney of record in one matter where the fraud domestic violence related orders were raised as an issue.

Kelley Lynch

On Tue, Oct 28, 2014 at 2:08 PM, Kelley Lynch <kelley.lynch.2010@gmail.com> wrote:

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 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 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 attached hereto a copy of the City Attorney's Reply Brief filed with 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

                                  IN THE APPELLATE DEPARTMENT OF THE

                               SUPERIOR COURT, COUNTY OF LOS ANGELES

                                                     STATE OF CALIFORNIA

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

                                               APPELLANTS OPENING BRIEF

FRANCISCO A. SUAREZ, ESQ. 135479

            Law Office of Francisco A. Suarez

301 W. Mission Blvd.

            Pomona, CA 91766

                        (909) 469-5111





TABLE OF CONTENTS

STATEMENT OF CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   2

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

I. WHETHER OR NOT A REASONABLE JURY COULD HAVE CONVICTED                            THE APPELLANT BEYOND A REASONABLE DOUBT?

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                           FOUNDATION AND SHOULD BE                                                                   STRICKEN………………………………………………………….9

       B. THE WORDS OF MS. LYNCH WERE                                                                         PROTECTED BY THE FIRST AMENDMENT FREEDOM OF                          SPEECH………………………………………………………….10

       C. THE CRIME OF HARRASSING AND ANNOYING PHONE                                  CALLS AND EMAILS WAS NOT PROVEN…………………….11

        D. THE RESTRAINING ORDER WAS NOT PROPERLY SERVED                           AND THEREFORE                                                                                                 INOPERABLE……………………………….12 .



        E. A CRIMINAL DEFENDANT HAS THE RIGHT TO COMPEL THE                      ATTENDANCE OF WITNESSS AT                                                                      TRIAL…………………………………………..…………………13

       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

                                                  STATEMENT OF THE CASE

            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.)

                                             STATEMENT OF THE FACTS

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 20^th 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                     confidence. Accordingly, in determining whether the record is sufficient in this respect, the appellant                court can give credit only to “substantial evidence.” i.e., evidence that reasonably inspires confidence                 and is of solid value.”

      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 6^th 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.4^th 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.

                                                                   II.
THE APPELLANT SHOULD HAVE BEEN ACQUITTED ON THE CHARGES DUE THE INSUFFICIENCY OF EVIDENCE

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.


                                                           CONCLUSION

            Based on the above it is respectfully requested that the instant case be overturned and dismissed.

Dated_______________                    Respectfully Submitted

                                                            ____________________________________

                                                            Francisco A. Suarez

                                                          Attorney for Appellant

                                 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.

                                                Francisco A. Suarez

Tuesday, October 28, 2014

Kelley Lynch Email To Richard Westin & Norman Posel Re: The Allegations In Greenberg's Lawsuit Against Leonard Cohen & Robert Kory That She Wholeheartedly Affirms

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