LACK OF SERVICE - CALIFORNIA ORDER - MAY 25, 2011
COURT - NO PERSONAL JURISDICTION
Service of process is the procedure employed to give legal notice to a person of a court or administrative body's exercise of its jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body, or other tribunal. Usually, notice is furnished by delivering a set of court documents (called "process") to the person to be served. Proper service of process establishes personal jurisdiction of the court over the person served. If the defendant ignores further pleadings or fails to participate in the proceedings, then the court or administrative body may find the defendant in default and award relief to the claimant, petitioner or plaintiff.
The underlying rationale for personal service of process as a prerequisite to the valid exercise of a judicial tribunal over a defendant finds its source in the Due Process clause of the 14th Amendment. This rationale, most often characterized as “notice and opportunity to be heard.” was discussed by the U.S. Supreme Court in a 1950 decision:
“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Mullane is quite clear on this point: “A mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.” Id. at 315. These requirements serve as a “constitutionally required assurance that the State has not allowed its power to be invoked against a person who has had no opportunity to present a defense despite a continuing interest in the resolution of the controversy.” Greene v. Lindsey, 456 U.S. 444, 455 (1982).
The U.S. Supreme Court then defines “notice” and “opportunity to be heard” as a requirement that a potential defendant be apprised of the nature of the proceedings against him or her, and that he or she have adequate time to mount objections thereto: “The notice must be of such nature as reasonably to convey the required information…and it must afford a reasonable time for those interested to make their appearance…” It remains undisputed that for more than one hundred years personal service has been the sine qua non for reliability and compliance with the constitutional requirements imposed by the 14th Amendment to the U.S. Constitution and decisional authority.
Personal Service of Process Remains a Critical Jurisdictional Foundation
The purpose of a service is to give notice to the party against whom a proceeding is commenced to appear at a certain place and time and to answer a complaint against him. In so doing, such service permits the exercise of personal jurisdiction by a court and assures the defendant of reasonable notice of the action.
The means were readily at hand to provide the kind of notice that would have dramatically increased the likelihood of an adversarial proceeding in this case. The ease with which Leonard Cohen failed to serve the unlawfully modified 2011 California permanent order on appellant once it was entered is a testament to that fact. Even service by mail, or using the email addresses available to Leonard Cohen, would have been a better alternative. See Greene v. Lindsey, supra. Instead they impermissibly chose a method “substantially less likely to bring home notice than other of the feasible and customary substitutes.” Mullane, 339 U.S. at 315. In failing to afford appellant adequate notice of the California order registered against her, Leonard Cohen deprived appellant of due process of law required by the Fourteenth Amendment.
Sunday, March 3, 2013
Leonard Cohen Thinks We Had A Dating Relationship? Enough Said.
DATING RELATIONSHIP
Dating Relationship
Leonard Cohen Cross: Kelly: Okay. Now, you also mentioned earlier that there was a brief intimate relationship between you and Ms. Lynch, correct? Cohen: That’s correct. Kelly: Now, being that she was your business manager, you wouldn’t say that was probably the best idea, to have a romantic relationship with your business partner, correct? Cohen: I don’t think it goes the the description of romantic. Kelly: Okay, but it was a sexual relationship, correct? Cohen: It was an intimate relationship, yes. Kelly: Was it a sexual relationship? Cohen: It involved a sexual - yes. Kelly: Not, it was -- it was actually spanning years, correct? Cohen: I’m sorry? Kelly: It actually spanned years, correct? Cohen: I don’t know how long it lasted, sir. ... Kelly: But you would agree with me that it was on and off for a period of time? Cohen: Yes, sir. (RT 275) Kelly: When did it end? Cohen: I don’t remember exactly when it ended. Like many relationships, it - it just dissolved. (RT 276) Kelly? Okay. Do you remember testifying on March 23rd at another hearing? March 23rd, yes. Of this year. You were in this courthouse testifying, correct? Cohen: That is correct. Kelly: Now, you were asked if this was -- if your relationship with Ms. Lynch was purely a business relationship. Do you remember that? Cohen: I did. Kelly: And you actually said that it was, yes, purely a business relationship. (RT 276) Cohen: I have said repeatedly that there was an intimate relationship, but the lady denies it. So I did not want to insist. Kelly: I’m not asking you about what Ms. Lynch said. I’m asking about what you said. You said that yes, that it was purely a business relationship, correct? Cohen: May I explain? Kelly: I’m just asking for if that’s what you said on March 23rd. Cohen: Yes. Kelly: In fact, you were asked a follow up question that -- asking you if that was the extent of it, and again you said yes, that was the extent of it. Cohen: Correct. (RT 277)
Leonard Cohen Testimony - March 23, 2012 Hearing
And finally, there was a question about a previous testimony that you’ve given, the description of your relationship with Ms. Lynch. Why at that hearing did you say that you only had a business relationship with Ms. Lynch? And not just once or twice. Why did you say that? Because, as it turns out, the friendship Ms. Lynch displayed was false and deceptive, so it was not really a friendship. Kelly: Objection. The intimate relationship we had, she denies. So I’m not going to insist. So, therefore, it was not -- from that point of view, there was not an intimate relationship
and there was not a friendship; it was all business. It was all business from the point of view of Ms. Lynch. Kelly: Objection; speculation as to what Ms. Lynch thought. Court: Overruled. The question was why he did it, and he’s testifying to his subjective reason. (RT 319-320)
Leonard Cohen Cross: Kelly: When you testified on March 23rd, you said that -- you didn’t give the same answer that you gave now, correct, regarding your relationship with Ms. Lynch? Cohen: That’s correct. Kelly: Okay. But you -- when you did testify, you stood in front of the counsel table, you raí sed your right hand, correct? Cohen: Correct. Kelly: You swore to tell the truth, the whole truth? Cohen: Correct. Kelly: And then the same oath that you just took
right now, correct? Before testifying, correct? Cohen: Correct. Kelly: Okay. And you understand that you were under the penalty of perjury on March 23rd? Streeter: Objection; argumentative. Court: Sustained. Kelly: Nothing further. (RT 321-322)
Kelley Lynch appeals from a California restraining order Leonard Cohen registered on May 25, 2011 for lack of jurisdiction under the [84 Cal. App. 4th 400] Domestic Violence Prevention Act (DVPA or the Act) (Fam. Code, § 6200 et seq.). The Act extends protection to individuals who are or have been in certain relationships with the perpetrator of defined types of abuse, including "a dating or engagement relationship." (Fam. Code, § 6211, subd. (c).) Appellant contends the trial court erred in finding there was a "dating relationship" between her and Cohen.
The legal question this issue presents - considerably more difficult than it may first appear - is not only with respect to the meaning of the phrase "dating relationship" as used in the DVPA but also what jurisdiction the trial court held over Ms. Lynch with respect to the alleged restraining order violation.
LACK OF PERSONAL JURISDICTION
Personal jurisdiction, or in personam jurisdiction, refers to the power of a court to enter a binding judgment against a person or other legal entity. A court must be able to exercise personal jurisdiction over a party in order for that party to be bound by an order of the court.
The Fourteenth Amendment grants the right to not be compelled to defend a lawsuit in a remote jurisdiction unless a party’s actions have made it fair to hale that party into court. A court’s exercise of jurisdiction over a party must “not offend traditional notions of fair play and substantial justice.”
Issue: Is service of process valid where a party induces another party by false representation to come within a jurisdiction in order to serve process on that person?
Holding and Rule: If a person is resident outside a jurisdiction, that person may not be induced by false representation to come within the jurisdiction of the court for the purpose of service of process. The law will not lend its sanction or support to an act, otherwise lawful, which is accomplished by unlawful means.
The essence of procedural due process, another requirement that must be satisfied for a court to exercise personal jurisdiction over a defendant, is that the defendant must receive adequate notice and an opportunity to be heard.
The initial police report reflecting Cohen's various complaints described appellant and Cohen as having a “sexual relationship.” In a subsequent contacts with LAPD, appellant sought to correct errors in their original report, including the fact that she and Cohen had a “sexual relationship.” Lynch was never Cohen’s girlfriend, never dated him, and was not in a sexual relationship with him and finds the very concept of that accusation deeply offensive. The California domestic violence order should be dismissed because Lynch and Cohen did not have a “dating or engagement relationship” within the meaning of the DVPA; that the Boulder civil harassment order was unlawfully modified when registered in California; and because appellant was not served the new California order depriving her of … constitutional rights.
The DVPA provides for issuance of orders "to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, if an affidavit shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse." (Fam. Code, § 6300.) "Domestic violence" is defined in section 6211 of the DVPA as "abuse perpetrated against any of the following persons: (a) A spouse or former spouse; (b) A cohabitant or former cohabitant, as defined in Section 6209; (c) A person with whom the respondent is having or has had a dating or engagement relationship;
(d) A person with whom the respondent has had a child, where the presumption applies that the male parent is the father of the child of the female parent under the Uniform Parentage Act; (e) A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected; and, (f) Any other person related by consanguinity or affinity within the second degree."
When registering the Colorado civil protection order, Leonard Cohen sought the protection of the DVPA under subdivision (c) of Family Code section 6211.
Appellant contends the Family Court erred in registering the Boulder civil harassment order - that can only be modified by the original court - as a domestic violence order because it failed to take into consideration the fact that Lynch and Cohen were not in a “dating relationship” of any type whatsoever. Lynch and Cohen’s business relationship, that also included a friendship, is insufficient to meet the definition of the DVPA. Appellant furrier contends that the absolute lack of a definition of “dating relationship” renders the statute itself unconstitutionally vague and overly broad.
Excerpts from Oriola v. Thaler (2000) 84 Cal. App. 4th 397:
“The fundamental rule of statutory construction is that a court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. T. M. Cobb Co. v. Superior Court (1984) 36 Cal. 3d 273, 277. An equally basic rule of statutory construction is that courts are bound to give effect to statutes according to the usual [84 Cal. App. 4th 405] and ordinary meaning of the language employed in framing them. Moyer v. Workmen's Comp. Appeals Bd. (1973)10 Cal. 3d 222. Where the words of the statute are clear, the court should not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history. California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal. 3d 692, 698.” O'Kane v. Irvine (1996) 47 Cal. App. 4th 207, 211.”
“The DVPA was originally enacted in 1979. (Stats. 1979, ch. 795 § 10, pp. 2710-2711.) Originally, the DVPA did not protect persons in a "dating relationship." As first enacted, the DVPA applied only to family members and persons who regularly resided in the household and had sexual relations with another family or household member, or had so resided within the last six months. (Former Code Civ. Proc., § 542, subds. (b), (c); Stats. 1979, ch. 795, § 10, p. 2711.) The DVPA was soon amended to delete the requirement of a sexual relationship for persons regularly residing in the household (former Code Civ. Proc., § 542, subd. (c); Stats. 1980, ch. 1158, § 6, p. 3880), and subsequently amended to extend to abuse between parents of a minor child. (Former Code Civ. Proc., § 542, subd. (c); Stats. 1984, ch. 1163, § 3, pp. 3995-3996.) Finally, as previously noted, the statute was amended to include the present "dating or engagement relationship" language. (Former Code Civ. Proc., § 542, subd. (b)(1); Stats. 1990, ch. 752, § 2, p. 3409.)”
“The DVPA does not define the phrase "dating or engagement relationship," and the meaning of a "dating relationship" is not clear enough to delineate the particular meaning the Legislature had in mind when it used these words.”
“The failure of the Legislature to define the nature of the "dating relationship" it had in mind creates a daunting judicial problem.”
“Therefore, as no judicial attempt to compass the human mind can fully succeed, we can devise no completely satisfactory definition of the "dating relationship" the Legislature contémplate … we conclude that, for purposes of the Act, a "dating relationship" refers to serious courtship. It is a social relationship between two individuals who have or have had a reciprocally amorous and increasingly exclusive interest in one another, and shared expectation of the growth of that mutual interest, that has endured for such a length of time and stimulated such frequent interactions that the relationship cannot be deemed to have been casual.”
No such continuing and mutually committed emotional relationship ever existed between Kelley Lynch and Leonard Cohen. Leonard Cohen was not without potential relief with respect to registering the Colorado civil harassment order in California. He and his lawyers cold have properly registered the order under Code of Civil Procedure section 527.6.
This court should also specifically dismiss the restraining order violation charges and attendant verdict for lack of jurisdiction. Leonard Cohen and his attorneys have improperly used legal procedures to harass, inflict, and impose undue distress and expense upon appellant.
Dating Relationship
Leonard Cohen Cross: Kelly: Okay. Now, you also mentioned earlier that there was a brief intimate relationship between you and Ms. Lynch, correct? Cohen: That’s correct. Kelly: Now, being that she was your business manager, you wouldn’t say that was probably the best idea, to have a romantic relationship with your business partner, correct? Cohen: I don’t think it goes the the description of romantic. Kelly: Okay, but it was a sexual relationship, correct? Cohen: It was an intimate relationship, yes. Kelly: Was it a sexual relationship? Cohen: It involved a sexual - yes. Kelly: Not, it was -- it was actually spanning years, correct? Cohen: I’m sorry? Kelly: It actually spanned years, correct? Cohen: I don’t know how long it lasted, sir. ... Kelly: But you would agree with me that it was on and off for a period of time? Cohen: Yes, sir. (RT 275) Kelly: When did it end? Cohen: I don’t remember exactly when it ended. Like many relationships, it - it just dissolved. (RT 276) Kelly? Okay. Do you remember testifying on March 23rd at another hearing? March 23rd, yes. Of this year. You were in this courthouse testifying, correct? Cohen: That is correct. Kelly: Now, you were asked if this was -- if your relationship with Ms. Lynch was purely a business relationship. Do you remember that? Cohen: I did. Kelly: And you actually said that it was, yes, purely a business relationship. (RT 276) Cohen: I have said repeatedly that there was an intimate relationship, but the lady denies it. So I did not want to insist. Kelly: I’m not asking you about what Ms. Lynch said. I’m asking about what you said. You said that yes, that it was purely a business relationship, correct? Cohen: May I explain? Kelly: I’m just asking for if that’s what you said on March 23rd. Cohen: Yes. Kelly: In fact, you were asked a follow up question that -- asking you if that was the extent of it, and again you said yes, that was the extent of it. Cohen: Correct. (RT 277)
Leonard Cohen Testimony - March 23, 2012 Hearing
And finally, there was a question about a previous testimony that you’ve given, the description of your relationship with Ms. Lynch. Why at that hearing did you say that you only had a business relationship with Ms. Lynch? And not just once or twice. Why did you say that? Because, as it turns out, the friendship Ms. Lynch displayed was false and deceptive, so it was not really a friendship. Kelly: Objection. The intimate relationship we had, she denies. So I’m not going to insist. So, therefore, it was not -- from that point of view, there was not an intimate relationship
and there was not a friendship; it was all business. It was all business from the point of view of Ms. Lynch. Kelly: Objection; speculation as to what Ms. Lynch thought. Court: Overruled. The question was why he did it, and he’s testifying to his subjective reason. (RT 319-320)
Leonard Cohen Cross: Kelly: When you testified on March 23rd, you said that -- you didn’t give the same answer that you gave now, correct, regarding your relationship with Ms. Lynch? Cohen: That’s correct. Kelly: Okay. But you -- when you did testify, you stood in front of the counsel table, you raí sed your right hand, correct? Cohen: Correct. Kelly: You swore to tell the truth, the whole truth? Cohen: Correct. Kelly: And then the same oath that you just took
right now, correct? Before testifying, correct? Cohen: Correct. Kelly: Okay. And you understand that you were under the penalty of perjury on March 23rd? Streeter: Objection; argumentative. Court: Sustained. Kelly: Nothing further. (RT 321-322)
Kelley Lynch appeals from a California restraining order Leonard Cohen registered on May 25, 2011 for lack of jurisdiction under the [84 Cal. App. 4th 400] Domestic Violence Prevention Act (DVPA or the Act) (Fam. Code, § 6200 et seq.). The Act extends protection to individuals who are or have been in certain relationships with the perpetrator of defined types of abuse, including "a dating or engagement relationship." (Fam. Code, § 6211, subd. (c).) Appellant contends the trial court erred in finding there was a "dating relationship" between her and Cohen.
The legal question this issue presents - considerably more difficult than it may first appear - is not only with respect to the meaning of the phrase "dating relationship" as used in the DVPA but also what jurisdiction the trial court held over Ms. Lynch with respect to the alleged restraining order violation.
LACK OF PERSONAL JURISDICTION
Personal jurisdiction, or in personam jurisdiction, refers to the power of a court to enter a binding judgment against a person or other legal entity. A court must be able to exercise personal jurisdiction over a party in order for that party to be bound by an order of the court.
The Fourteenth Amendment grants the right to not be compelled to defend a lawsuit in a remote jurisdiction unless a party’s actions have made it fair to hale that party into court. A court’s exercise of jurisdiction over a party must “not offend traditional notions of fair play and substantial justice.”
Issue: Is service of process valid where a party induces another party by false representation to come within a jurisdiction in order to serve process on that person?
Holding and Rule: If a person is resident outside a jurisdiction, that person may not be induced by false representation to come within the jurisdiction of the court for the purpose of service of process. The law will not lend its sanction or support to an act, otherwise lawful, which is accomplished by unlawful means.
The essence of procedural due process, another requirement that must be satisfied for a court to exercise personal jurisdiction over a defendant, is that the defendant must receive adequate notice and an opportunity to be heard.
The initial police report reflecting Cohen's various complaints described appellant and Cohen as having a “sexual relationship.” In a subsequent contacts with LAPD, appellant sought to correct errors in their original report, including the fact that she and Cohen had a “sexual relationship.” Lynch was never Cohen’s girlfriend, never dated him, and was not in a sexual relationship with him and finds the very concept of that accusation deeply offensive. The California domestic violence order should be dismissed because Lynch and Cohen did not have a “dating or engagement relationship” within the meaning of the DVPA; that the Boulder civil harassment order was unlawfully modified when registered in California; and because appellant was not served the new California order depriving her of … constitutional rights.
The DVPA provides for issuance of orders "to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, if an affidavit shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse." (Fam. Code, § 6300.) "Domestic violence" is defined in section 6211 of the DVPA as "abuse perpetrated against any of the following persons: (a) A spouse or former spouse; (b) A cohabitant or former cohabitant, as defined in Section 6209; (c) A person with whom the respondent is having or has had a dating or engagement relationship;
(d) A person with whom the respondent has had a child, where the presumption applies that the male parent is the father of the child of the female parent under the Uniform Parentage Act; (e) A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected; and, (f) Any other person related by consanguinity or affinity within the second degree."
When registering the Colorado civil protection order, Leonard Cohen sought the protection of the DVPA under subdivision (c) of Family Code section 6211.
Appellant contends the Family Court erred in registering the Boulder civil harassment order - that can only be modified by the original court - as a domestic violence order because it failed to take into consideration the fact that Lynch and Cohen were not in a “dating relationship” of any type whatsoever. Lynch and Cohen’s business relationship, that also included a friendship, is insufficient to meet the definition of the DVPA. Appellant furrier contends that the absolute lack of a definition of “dating relationship” renders the statute itself unconstitutionally vague and overly broad.
Excerpts from Oriola v. Thaler (2000) 84 Cal. App. 4th 397:
“The fundamental rule of statutory construction is that a court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. T. M. Cobb Co. v. Superior Court (1984) 36 Cal. 3d 273, 277. An equally basic rule of statutory construction is that courts are bound to give effect to statutes according to the usual [84 Cal. App. 4th 405] and ordinary meaning of the language employed in framing them. Moyer v. Workmen's Comp. Appeals Bd. (1973)10 Cal. 3d 222. Where the words of the statute are clear, the court should not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history. California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal. 3d 692, 698.” O'Kane v. Irvine (1996) 47 Cal. App. 4th 207, 211.”
“The DVPA was originally enacted in 1979. (Stats. 1979, ch. 795 § 10, pp. 2710-2711.) Originally, the DVPA did not protect persons in a "dating relationship." As first enacted, the DVPA applied only to family members and persons who regularly resided in the household and had sexual relations with another family or household member, or had so resided within the last six months. (Former Code Civ. Proc., § 542, subds. (b), (c); Stats. 1979, ch. 795, § 10, p. 2711.) The DVPA was soon amended to delete the requirement of a sexual relationship for persons regularly residing in the household (former Code Civ. Proc., § 542, subd. (c); Stats. 1980, ch. 1158, § 6, p. 3880), and subsequently amended to extend to abuse between parents of a minor child. (Former Code Civ. Proc., § 542, subd. (c); Stats. 1984, ch. 1163, § 3, pp. 3995-3996.) Finally, as previously noted, the statute was amended to include the present "dating or engagement relationship" language. (Former Code Civ. Proc., § 542, subd. (b)(1); Stats. 1990, ch. 752, § 2, p. 3409.)”
“The DVPA does not define the phrase "dating or engagement relationship," and the meaning of a "dating relationship" is not clear enough to delineate the particular meaning the Legislature had in mind when it used these words.”
“The failure of the Legislature to define the nature of the "dating relationship" it had in mind creates a daunting judicial problem.”
“Therefore, as no judicial attempt to compass the human mind can fully succeed, we can devise no completely satisfactory definition of the "dating relationship" the Legislature contémplate … we conclude that, for purposes of the Act, a "dating relationship" refers to serious courtship. It is a social relationship between two individuals who have or have had a reciprocally amorous and increasingly exclusive interest in one another, and shared expectation of the growth of that mutual interest, that has endured for such a length of time and stimulated such frequent interactions that the relationship cannot be deemed to have been casual.”
No such continuing and mutually committed emotional relationship ever existed between Kelley Lynch and Leonard Cohen. Leonard Cohen was not without potential relief with respect to registering the Colorado civil harassment order in California. He and his lawyers cold have properly registered the order under Code of Civil Procedure section 527.6.
This court should also specifically dismiss the restraining order violation charges and attendant verdict for lack of jurisdiction. Leonard Cohen and his attorneys have improperly used legal procedures to harass, inflict, and impose undue distress and expense upon appellant.
The Actual Common Plan And Scheme - Entrapment And Conspiracy
IMPROPER ADMISSION OR EXCLUSION OF EVIDENCE
The basic prerequisites of admissibility are relevance, materiality, and competence. In general, if evidence is shown to be relevant, material, and competent, and is not barred by an exclusionary rule, it is admissible. Evid. Code § 351; Fed. Rules Evid. 402.
Appellant claims that she was denied her right to a fundamentally fair trial guaranteed by the due process clause due to the fact that the admission of evidence so fatally infected the proceedings as to render them fundamentally unfair.
1101 EVIDENCE CODE
The People’s theory with respect to admissible 1101(b) evidence appears to involves a narrative regarding appellant’s alleged conduct dating to 2005. The People, in establishing the common plan and scheme theory, raised issues relating to evidence involving an email Michelle Rice allegedly received; a young man - Jonathan Maihart - who stopped by Robert Kory’s office in the year 2005; Leonard Cohen’s publicly documented history of drug abuse; and, online posts appellant made while Leonard Cohen was on tour.
Specifiically, prosecutor Streeter in …. Closing … that apellant had a history that included misappropriating monies from Leonard Cohen - based on fraudulent misrepresentations in his retaliatory 2005 lawsuit (perjury, wilful disregard for corporate books and records, misrepresentations re. Appellant‘s personal management commissions) and - alter Cohen heard she was gong to the IRS regarding the allegations that he committed criminal tax fraude -attempted to harass him with respect to a 1099 the IRS requires him to provide her for the year 2004; illegal K-1s tax documents transmitted to the State of Kentucky and IRS for the years 2003-2004-2005; by reporting his probable criminal tax fraud to the Internal Revenue Service in 2005; continued with her attempts to annoy him by advising the District Attorney of Los Angeles that Cohen lies and fabricates stories about Phil Spector; filed a complaint with the DA’s Major Fraud Unit with respect to Cohen’s theft from her (millions), fraud, etc; raised his prior drug abuse as a possible explanation for his abusive, inconceivable, and outrageous conduct towards her; refuted his lies that she had sex with Oliver Stone; addressed his sexual harassment with respect to her - in particular, the fact that he would have her read legal and business documents to him while he bathed in a bubble bath; raised his daughter’s allegations that he molested her - as repeated by Freda Guttman to Ann Diamond; discussed the fact that alleged members of the Aryan Nation (or their relatives) helped her while she was homeless; addressed an incident that envolved a Dallas FBI investigation into a murder, the Aryan Nation, the Cartel, and meth labs; and, evidently further annoyed him with respect to her younger son’s custody matter and her older son’s Whole Foods accident. Add in Bob Dylan and Paul Shaffer. Dennis Riordan.
The prosecutor’s use of appellant’s alleged personal history constituted an impermissible use of evidence to prove character and propensity. California law bars any argument in this case that Lynch has a character or propensity to annoy or harass Leonard Cohen, particularly when these incidents primarily relate to his conduct and not hers. As the prosecutor should have understood, the evidence deemed admissible against Lynch has not been, and could not be, admitted to prove any character trait or propensity on appellant’s part. And yet that it is precisely how it was used.
Closing Argument - Prosecutor Sandra Jo Streeter: The case is not about -- about the unlawful -- whether or not Ms. Lynch was ever charged criminally with stealing from Mr. Cohen, although it does weigh a bit on her credibility issue. All right. (RT 562)
The prosecutor’s misconduct placed appellant in the untenable position of having to accept the prosecutor’s assertions regarding her character and personal history, which, under California evidentiary rules, opened the flood gates to the admission of additional prejudicial evidence. The prejudice to Lynch from the Deputy City Attorney’s misconduct throughout the trial is extraordinary and irremediable which should have resulted in a mistrial.
The trial court ruled that the Deputy City Attorney would be permitted to offer testimony and evidence with respect to incidents that were highly distorted in an atempt to present Ms. Lynch as an individual who intentionally set out to annoy or harass Leoanrd Cohen. In fact, it the Deputy City Attorney attempted to persuade the jurors that Lynch was a disgruntled ex lover who was already in possession of the tax documents she had requested.
On what precise “limited purpose” grounds the evidence was actually admitted - whether to prove Lynch’s motive or character - may never be fully determined, but there can be no doubt as to what this evidence was not admitted to prove. The trial court could not have admitted the evidence to prove that Lynch had a character trait of annoying or harassing people thereby supporting an inference that Ms. Lynch acted in conformity with those traits or propensity with respect to Leonard Cohen. The ban on character evidence under Evidence Code Section 1101 applies in this case, and it is absolute. People v. Alcala 1984 36 Cal.3d 604, 631 (“California’s codification of the common law rule … is absolute where it applies. However probative to common sense, evidence must be excluded under Section 1101(a) if the inference it directly seeks to establish is solely one of propensity to commit crimes in general, or of a particular class.”
Given the remarkable volume of uncharged offense evidence the court has ruled admissible in this case, the barrier between the limited purpose for which the evidence of uncharged acts was admitted and its use as character evidence was clearly not properly maintained. The trial court should have been particularly vigilant to avoid a violation of the structures of 1101 Evidence.
But throughout the trial, and in closing, that is precisely the end to which the prosecutor put the evidence. She did not limit her discussion to whether the past incidents prove Lynch had a common plan or scheme. Sandra Jo Streeter informed the jurors that Lynch had a history of harassing Leonard Cohen and others - such as District Attorney Steven Cooley and Spector prosecutor Alan Jackson who were evidently the latest victims of her so-called personality trait. The prosecutor thus made precisely the propensity/character use of the evidence that is prohibited by California law.
In this case, the prosecutor’s improper use of the uncharged incidents to prove character and propensity could not be clearer. Again, the prosecutor described - through misstatement and distortion of fact and evidence - Lynch’s supposed history of harassment and suggested the present offense was in keeping with the traits that, as her history proves, Lynch possesses. Such use of the 1101(b) and alleged threat evidence is barred by Califoirnia law.
Ms. Streeter’s comments throughout the trial not only amounted to misconduct, they fundamentally altered the landscape of the trial in a way that was exceedingly and unnecessarily prejudicial to the appellant. In order to counter Ms. Streeter’s improper characterization of the uncharged conduct evidence, Lynch would have been forced to offer evidence that she does not harass people. For example, District Attorney Steve Cooley could have testifed that Investigator William Frayeh personally hand delivered a letter Lynch wrote to Spector prosecutor Alan Jackson addressing very serious issues with respect to Phil Spector and Leonard Cohen. Should Lynch have introduced the affirmative character evidence, however, the prosecution may have then claimed that under the law it had the right to rebut Cooley’s testimony with its own negative character evidence proof that otherwise would have no place in this trial.
The prosecution sought to put appellant on trial based on a fictional theory of her life history rather than the evidence concerning the charged crime and its statements throughout this trial were simply a tactic to achieve that end. The prosecución treated Section 1101(b) as a hindrance to be over come and this court must view it as a rule of law to be respected and enforced. The appellant was placed in an entirely untenable position as a result of the City Attorney’s misuse of the prior incidents throughout the trial, and was disadvantaged in a manner that opened the door to extremely prejudicial allegad character evidence. The appropriate remedy at trial was to mistry the case and start over with jurors who had not been tainted by Ms. Streeter’s remarks. In addition, the prosecutor should have been strictly limited to using the Section 1101(b) and alleged threat evidence - in opening and closing argument and throughout the trial - for its proper purpose. For reasons unbeknownst to appellant, her public defenders did not file a Motion for a Mistrial.
In People v. Hernandez (1991) 231 Cal. App. 3d 1376 [283 Cal. Rptr. 81], the court said “In fact, it is difficult to imagine a situation in which an individual could engage in the specific conduct proscribed in subdivisions (a) and (b) and still enjoy constitutional protection.
COMMON PLAN AND SCHEME
Summarize the alleged plan and scheme scam
The evidence of the alleged prior bad acts in this case were introduced to prove intent and the existence of a common plan under Evidence Code Section 1101. Appellant contents the trial court abused its discretion in admitting this evidence because the existence of a common plan is nothing more than a fictional narrative and the evidence was more far more prejudicial than probative under Section 352.
Appellant maintains that: (1) the trial court erred in admitting evidence of the alleged uncharged acts; (2) even if viewed as individually harmless these errors were cumulatively and unduly prejudicial under Evidence Code Section 352; and (3) the allegad prior incidents were so inconceivably dissimilar from the charged offenses that the evidence was inadmissible.
Evidence of prior similar criminal acts is generally inadmissible to prove character or criminal disposition, but it may be offered to establish some other relevant fact such as the existense of a common plan or scheme. Evidence of crimes committed by a defendant other than those charged is inadmissible to prove criminal disposition or poor character. Evid. Code Section 1101, subd. (a). Such evidence is admissible to prove, among other things, the existente of common design or plan or the perpetrator’s intent in the commission of the charged offense. People v. Lenart (2004) 32 Cal.4th 1107, 1123; Evid. Code Section 1101, subd. (b).
Nevertheless, such evidence is admissible “‘only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent.’ ” (Lenart, supra, 32 Cal.4th at p. 1123.) Depending on the issue to which the evidence is relevant, a greater or lesser degree of similarity between the charged offense and the uncharged offense is required. The least degree of similarity is required to establish relevance to prove intent. (Ibid.) “To satisfy this theory of relevance, charged and uncharged crimes need only be sufficiently similar to support the inference that the defendant probably harbor[ed] the same intent in each instance.” (People v. Demetrulias (2006) 39 Cal.4th 1, 15 (Demetrulias), internal quotations and citations omitted; People v. Lewis (2001) 25 Cal.4th 610, 637.)
Even if relevant, “[e]vidence of an uncharged crime may be admitted only if its substantial probative value is not outweighed by a danger of undue prejudice, of confusion of the issues, or of misleading the jury. ‘On appeal, a trial court’s resolution of these issues is reviewed for abuse of discretion. A court abuses its discretion when its ruling “falls outside the bounds of reason.” People v. Catlin (2001) 26 Cal.4th 81, 122.
Over defense objections, the trial court concluded that the evidence was substantially more probative than prejudicial. Based on this ruling, the prosecutor introduced testimony that attempted to establish a common plan or scheme. The evidence - which neither established a common plan or scheme nor supported a conviction - was highly prejudicial and hardly probative. The evidence was also prejudicially cumulative. The trial court’s instruction admonishing the jury with respect to this immaterial and irrelevante evidence did not correct its prejudicial effect. It is reasonably probable apellant world have obtained a more favorable result if the evidence had been excluded. Because the error in admitting the prior bad acts evidence was not harmless, the trial court abused its discretion.
A defendant’s not guilty plea puts all the elements of a crime in issue, including intent as evidenced by a common scheme or plan. People v. Ewoldt (1994) 7 Cal.4th 380.
In People v. Ewoldt (1994) 7 Cal.4th 380, 401, the California Supreme Court held that evidence of a defendant’s uncharged misconduct is relevant where the uncharged misconduct and the charged offense are sufficiently similar to support the inference that they are manifestations of a common design or plan. The court distinguished between the nature and degree of similarity required in order to establish a common design or plan, as opposed to that required to prove intent or identity. The court found the least degree of similarity between the uncharged act and cargad offense is required to prove intent. (Id. at p. 402.) In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant “probably harbored the same intent in each instance.” (Ibid.)
A greater degree of similarity is required to prove existence of a common design or plan. “To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.” (Id. at p. 403.) Prior bad acts may be admitted if they demonstrate “circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts. Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense.” (Ibid.)
Before the trier of fact may consider evidence of an uncharged act pursuant to Evidence Code section 1101, subdivision (b), the prosecution must prove by a preponderance of the evidence that the defendant in fact committed the uncharged act(s) in question. People v.
Carpenter (1997) 15 Cal.4th 312, 382.
Importantly, the California Supreme Court has held that evidence that meets the requirements of Evidence Code section 1101, subdivision (b), must still be subjected to a weighing under Evidence Code section 352 prior to being admitted.
Ewoldt reasoned: “Evidence of uncharged offenses ‘is so prejudicial that its admission requires extremely careful analysis. [Citations.]’ People v. Smallwood (1986) 42 Cal.3d 415, 428, 228 Cal.Rptr. 913, 722 P.2d 197; see also People v. Thompson (1988) 45 Cal.3d 86, 109, 246 Cal.Rptr. 245, 753 P.2d 37.) ‘Since “substantial prejudicial effect [is] inherent in [such] evidence,” uncharged offenses are admissible only if they have substantial probative value.’ People v. Thompson (1980) 27 Cal.3d 303, 318, 165. Although the evidence of defendant’s uncharged criminal conduct in this case is relevant to establish a common design or plan, to be admissible such evidence ‘must not contravene other policies limiting admission, such as those contained in Evidence Code section 352. [Citations.]’ People v. Thompson, supra, 45 Cal.3d at p. 109, 246 Cal.Rptr. 245, 753 P.2d 37.) We thus proceed to examine whether the probative value of the evidence of defendant’s uncharged offenses is ‘substantially outweighed by the probability that its admission [would] ... create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.’ (Evid. Code, § 352.)”
The following factors should be considered when determining whether evidence otherwise admissible under Evidence Code section 1101, subdivision (b), should nonetheless be excluded pursuant to Evidence Code section 352: the materiality of the fact to be proved or disproved; the probative value of the other crimes evidence to prove or disprove the facts; the existence of any rule or policy requiring exclusion even if the evidence is relevant; and, the remoteness in time of the uncharged act(s).
On appeal, appellate courts review a trial court’s ruling under Evidence Code section 1101 for abuse of discretion. People v. Roldan (2005) 35 Cal.4th 646, 705.
Appellant claims that her constitutional right to a fundamentally fair trial as guaranteed by the Due Process Clause of the Fourteenth Amendment was violated. See Gideon v. Wainwright 372 U.S. 335 (1963). The prior bad act evidence was irrelevant and immaterial to any essential element in the prosecution’s case, and its admission rendered Lynch’s trial fundamentally unfair.
Pursuant to McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1385: Evidence is considered irrelevant if it fails to make any fact of consequence more or less probable. See Fed.R.Evid. 401. Irrelevant evidence may merely be a waste of time, may confuse the jury, or may cause serious prejudice to the defense. The argument regarding relevance in this case is different from that in Estelle v. McGuire 502 U.S. 62 (1991). In Estelle, the Supreme Court found that the “battered child syndrome” evidence was relevant to the intentional nature of the injuries that killed the child, a fact of consequence. The contested evidence in this case can loosely be termed “other acts” evidence. “Other acts” evidence may be relevant to a fact of consequence, or it may be relevant only insofar as it proves the character of the defendant in order to show action in conformity therewith, in which case it is a form of character evidence.
The use of "other acts" evidence as character evidence is not only impermissible under the theory of evidence codified in the California rules of evidence (Cal.Evid.Code § 1101 (West Supp.1993) and the Federal Rules of Evidence (Fed.R.Evid. 404(b)), but is contrary to firmly established principles of Anglo-American jurisprudence. Early American courts retained the rule against using "other acts" evidence as character evidence to show action in conformity therewith. See, e.g., Boyd v. United States, 142 U.S. 450, 458, 12 S.Ct. 292, 295, 35 L.Ed. 1077 (1892) (finding that admission of prior crimes committed by defendants so prejudiced their trial as to require reversal).
As elucidated by the Supreme Court in Brinegar v. United States, 338 U.S. 160, 174, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949): Guilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property.
The rule against using character evidence to show behavior in conformance therewith, or propensity, is one historically grounded rule of evidence.
The admitted evidence of “other acts” was irrelevant to a fact of consequence or was solely evidence of character. Under the historic rule against character evidence, such evidence is not relevant to any fact of consequence. No relevant inferences to a fact may be drawn from any particular piece of the prior bad acts evidence which lead only to impermissible inference’s about the appellant’s character.
The prior bad act evidence was indisputably irrelevant to any element of the prosecution’s case, including common plan and scheme, and is irrelevant to any argument that apellan acted willfully or with specific intent. The evidence thus was offered to prove character, give rise to a propensity inference, and did not tend to prove a fact of consequence. This evidence was totally irrelevant and more prejudicial than probative - thus, inadmissible under California evidence law. Its admission was in violation of the historically grounded rule against the use of “other acts” evidence to prove character.
As the U.S. Supreme Court noted in Dowling v. United States, 493 U.S. 342 (1990), when determining whether a due process violation has occurred, courts “are to determine only whether the action complained of … violates those fundamental conceptions of justice which lie at the base of our civil and political institutions, and which define the community’s sense of fair play and decency.”
Because of the lack of a case against appellant, and the pervasiveness of erroneously admitted evidence throughout the trial it is “highly probable that the error had substantial and injurious effect or influence in determining the jury's verdict.” Kotteakos, 328 U.S. at 776, 66 S.Ct. at 1253.
The basic prerequisites of admissibility are relevance, materiality, and competence. In general, if evidence is shown to be relevant, material, and competent, and is not barred by an exclusionary rule, it is admissible. Evid. Code § 351; Fed. Rules Evid. 402.
Appellant claims that she was denied her right to a fundamentally fair trial guaranteed by the due process clause due to the fact that the admission of evidence so fatally infected the proceedings as to render them fundamentally unfair.
1101 EVIDENCE CODE
The People’s theory with respect to admissible 1101(b) evidence appears to involves a narrative regarding appellant’s alleged conduct dating to 2005. The People, in establishing the common plan and scheme theory, raised issues relating to evidence involving an email Michelle Rice allegedly received; a young man - Jonathan Maihart - who stopped by Robert Kory’s office in the year 2005; Leonard Cohen’s publicly documented history of drug abuse; and, online posts appellant made while Leonard Cohen was on tour.
Specifiically, prosecutor Streeter in …. Closing … that apellant had a history that included misappropriating monies from Leonard Cohen - based on fraudulent misrepresentations in his retaliatory 2005 lawsuit (perjury, wilful disregard for corporate books and records, misrepresentations re. Appellant‘s personal management commissions) and - alter Cohen heard she was gong to the IRS regarding the allegations that he committed criminal tax fraude -attempted to harass him with respect to a 1099 the IRS requires him to provide her for the year 2004; illegal K-1s tax documents transmitted to the State of Kentucky and IRS for the years 2003-2004-2005; by reporting his probable criminal tax fraud to the Internal Revenue Service in 2005; continued with her attempts to annoy him by advising the District Attorney of Los Angeles that Cohen lies and fabricates stories about Phil Spector; filed a complaint with the DA’s Major Fraud Unit with respect to Cohen’s theft from her (millions), fraud, etc; raised his prior drug abuse as a possible explanation for his abusive, inconceivable, and outrageous conduct towards her; refuted his lies that she had sex with Oliver Stone; addressed his sexual harassment with respect to her - in particular, the fact that he would have her read legal and business documents to him while he bathed in a bubble bath; raised his daughter’s allegations that he molested her - as repeated by Freda Guttman to Ann Diamond; discussed the fact that alleged members of the Aryan Nation (or their relatives) helped her while she was homeless; addressed an incident that envolved a Dallas FBI investigation into a murder, the Aryan Nation, the Cartel, and meth labs; and, evidently further annoyed him with respect to her younger son’s custody matter and her older son’s Whole Foods accident. Add in Bob Dylan and Paul Shaffer. Dennis Riordan.
The prosecutor’s use of appellant’s alleged personal history constituted an impermissible use of evidence to prove character and propensity. California law bars any argument in this case that Lynch has a character or propensity to annoy or harass Leonard Cohen, particularly when these incidents primarily relate to his conduct and not hers. As the prosecutor should have understood, the evidence deemed admissible against Lynch has not been, and could not be, admitted to prove any character trait or propensity on appellant’s part. And yet that it is precisely how it was used.
Closing Argument - Prosecutor Sandra Jo Streeter: The case is not about -- about the unlawful -- whether or not Ms. Lynch was ever charged criminally with stealing from Mr. Cohen, although it does weigh a bit on her credibility issue. All right. (RT 562)
The prosecutor’s misconduct placed appellant in the untenable position of having to accept the prosecutor’s assertions regarding her character and personal history, which, under California evidentiary rules, opened the flood gates to the admission of additional prejudicial evidence. The prejudice to Lynch from the Deputy City Attorney’s misconduct throughout the trial is extraordinary and irremediable which should have resulted in a mistrial.
The trial court ruled that the Deputy City Attorney would be permitted to offer testimony and evidence with respect to incidents that were highly distorted in an atempt to present Ms. Lynch as an individual who intentionally set out to annoy or harass Leoanrd Cohen. In fact, it the Deputy City Attorney attempted to persuade the jurors that Lynch was a disgruntled ex lover who was already in possession of the tax documents she had requested.
On what precise “limited purpose” grounds the evidence was actually admitted - whether to prove Lynch’s motive or character - may never be fully determined, but there can be no doubt as to what this evidence was not admitted to prove. The trial court could not have admitted the evidence to prove that Lynch had a character trait of annoying or harassing people thereby supporting an inference that Ms. Lynch acted in conformity with those traits or propensity with respect to Leonard Cohen. The ban on character evidence under Evidence Code Section 1101 applies in this case, and it is absolute. People v. Alcala 1984 36 Cal.3d 604, 631 (“California’s codification of the common law rule … is absolute where it applies. However probative to common sense, evidence must be excluded under Section 1101(a) if the inference it directly seeks to establish is solely one of propensity to commit crimes in general, or of a particular class.”
Given the remarkable volume of uncharged offense evidence the court has ruled admissible in this case, the barrier between the limited purpose for which the evidence of uncharged acts was admitted and its use as character evidence was clearly not properly maintained. The trial court should have been particularly vigilant to avoid a violation of the structures of 1101 Evidence.
But throughout the trial, and in closing, that is precisely the end to which the prosecutor put the evidence. She did not limit her discussion to whether the past incidents prove Lynch had a common plan or scheme. Sandra Jo Streeter informed the jurors that Lynch had a history of harassing Leonard Cohen and others - such as District Attorney Steven Cooley and Spector prosecutor Alan Jackson who were evidently the latest victims of her so-called personality trait. The prosecutor thus made precisely the propensity/character use of the evidence that is prohibited by California law.
In this case, the prosecutor’s improper use of the uncharged incidents to prove character and propensity could not be clearer. Again, the prosecutor described - through misstatement and distortion of fact and evidence - Lynch’s supposed history of harassment and suggested the present offense was in keeping with the traits that, as her history proves, Lynch possesses. Such use of the 1101(b) and alleged threat evidence is barred by Califoirnia law.
Ms. Streeter’s comments throughout the trial not only amounted to misconduct, they fundamentally altered the landscape of the trial in a way that was exceedingly and unnecessarily prejudicial to the appellant. In order to counter Ms. Streeter’s improper characterization of the uncharged conduct evidence, Lynch would have been forced to offer evidence that she does not harass people. For example, District Attorney Steve Cooley could have testifed that Investigator William Frayeh personally hand delivered a letter Lynch wrote to Spector prosecutor Alan Jackson addressing very serious issues with respect to Phil Spector and Leonard Cohen. Should Lynch have introduced the affirmative character evidence, however, the prosecution may have then claimed that under the law it had the right to rebut Cooley’s testimony with its own negative character evidence proof that otherwise would have no place in this trial.
The prosecution sought to put appellant on trial based on a fictional theory of her life history rather than the evidence concerning the charged crime and its statements throughout this trial were simply a tactic to achieve that end. The prosecución treated Section 1101(b) as a hindrance to be over come and this court must view it as a rule of law to be respected and enforced. The appellant was placed in an entirely untenable position as a result of the City Attorney’s misuse of the prior incidents throughout the trial, and was disadvantaged in a manner that opened the door to extremely prejudicial allegad character evidence. The appropriate remedy at trial was to mistry the case and start over with jurors who had not been tainted by Ms. Streeter’s remarks. In addition, the prosecutor should have been strictly limited to using the Section 1101(b) and alleged threat evidence - in opening and closing argument and throughout the trial - for its proper purpose. For reasons unbeknownst to appellant, her public defenders did not file a Motion for a Mistrial.
In People v. Hernandez (1991) 231 Cal. App. 3d 1376 [283 Cal. Rptr. 81], the court said “In fact, it is difficult to imagine a situation in which an individual could engage in the specific conduct proscribed in subdivisions (a) and (b) and still enjoy constitutional protection.
COMMON PLAN AND SCHEME
Summarize the alleged plan and scheme scam
The evidence of the alleged prior bad acts in this case were introduced to prove intent and the existence of a common plan under Evidence Code Section 1101. Appellant contents the trial court abused its discretion in admitting this evidence because the existence of a common plan is nothing more than a fictional narrative and the evidence was more far more prejudicial than probative under Section 352.
Appellant maintains that: (1) the trial court erred in admitting evidence of the alleged uncharged acts; (2) even if viewed as individually harmless these errors were cumulatively and unduly prejudicial under Evidence Code Section 352; and (3) the allegad prior incidents were so inconceivably dissimilar from the charged offenses that the evidence was inadmissible.
Evidence of prior similar criminal acts is generally inadmissible to prove character or criminal disposition, but it may be offered to establish some other relevant fact such as the existense of a common plan or scheme. Evidence of crimes committed by a defendant other than those charged is inadmissible to prove criminal disposition or poor character. Evid. Code Section 1101, subd. (a). Such evidence is admissible to prove, among other things, the existente of common design or plan or the perpetrator’s intent in the commission of the charged offense. People v. Lenart (2004) 32 Cal.4th 1107, 1123; Evid. Code Section 1101, subd. (b).
Nevertheless, such evidence is admissible “‘only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent.’ ” (Lenart, supra, 32 Cal.4th at p. 1123.) Depending on the issue to which the evidence is relevant, a greater or lesser degree of similarity between the charged offense and the uncharged offense is required. The least degree of similarity is required to establish relevance to prove intent. (Ibid.) “To satisfy this theory of relevance, charged and uncharged crimes need only be sufficiently similar to support the inference that the defendant probably harbor[ed] the same intent in each instance.” (People v. Demetrulias (2006) 39 Cal.4th 1, 15 (Demetrulias), internal quotations and citations omitted; People v. Lewis (2001) 25 Cal.4th 610, 637.)
Even if relevant, “[e]vidence of an uncharged crime may be admitted only if its substantial probative value is not outweighed by a danger of undue prejudice, of confusion of the issues, or of misleading the jury. ‘On appeal, a trial court’s resolution of these issues is reviewed for abuse of discretion. A court abuses its discretion when its ruling “falls outside the bounds of reason.” People v. Catlin (2001) 26 Cal.4th 81, 122.
Over defense objections, the trial court concluded that the evidence was substantially more probative than prejudicial. Based on this ruling, the prosecutor introduced testimony that attempted to establish a common plan or scheme. The evidence - which neither established a common plan or scheme nor supported a conviction - was highly prejudicial and hardly probative. The evidence was also prejudicially cumulative. The trial court’s instruction admonishing the jury with respect to this immaterial and irrelevante evidence did not correct its prejudicial effect. It is reasonably probable apellant world have obtained a more favorable result if the evidence had been excluded. Because the error in admitting the prior bad acts evidence was not harmless, the trial court abused its discretion.
A defendant’s not guilty plea puts all the elements of a crime in issue, including intent as evidenced by a common scheme or plan. People v. Ewoldt (1994) 7 Cal.4th 380.
In People v. Ewoldt (1994) 7 Cal.4th 380, 401, the California Supreme Court held that evidence of a defendant’s uncharged misconduct is relevant where the uncharged misconduct and the charged offense are sufficiently similar to support the inference that they are manifestations of a common design or plan. The court distinguished between the nature and degree of similarity required in order to establish a common design or plan, as opposed to that required to prove intent or identity. The court found the least degree of similarity between the uncharged act and cargad offense is required to prove intent. (Id. at p. 402.) In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant “probably harbored the same intent in each instance.” (Ibid.)
A greater degree of similarity is required to prove existence of a common design or plan. “To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.” (Id. at p. 403.) Prior bad acts may be admitted if they demonstrate “circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts. Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense.” (Ibid.)
Before the trier of fact may consider evidence of an uncharged act pursuant to Evidence Code section 1101, subdivision (b), the prosecution must prove by a preponderance of the evidence that the defendant in fact committed the uncharged act(s) in question. People v.
Carpenter (1997) 15 Cal.4th 312, 382.
Importantly, the California Supreme Court has held that evidence that meets the requirements of Evidence Code section 1101, subdivision (b), must still be subjected to a weighing under Evidence Code section 352 prior to being admitted.
Ewoldt reasoned: “Evidence of uncharged offenses ‘is so prejudicial that its admission requires extremely careful analysis. [Citations.]’ People v. Smallwood (1986) 42 Cal.3d 415, 428, 228 Cal.Rptr. 913, 722 P.2d 197; see also People v. Thompson (1988) 45 Cal.3d 86, 109, 246 Cal.Rptr. 245, 753 P.2d 37.) ‘Since “substantial prejudicial effect [is] inherent in [such] evidence,” uncharged offenses are admissible only if they have substantial probative value.’ People v. Thompson (1980) 27 Cal.3d 303, 318, 165. Although the evidence of defendant’s uncharged criminal conduct in this case is relevant to establish a common design or plan, to be admissible such evidence ‘must not contravene other policies limiting admission, such as those contained in Evidence Code section 352. [Citations.]’ People v. Thompson, supra, 45 Cal.3d at p. 109, 246 Cal.Rptr. 245, 753 P.2d 37.) We thus proceed to examine whether the probative value of the evidence of defendant’s uncharged offenses is ‘substantially outweighed by the probability that its admission [would] ... create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.’ (Evid. Code, § 352.)”
The following factors should be considered when determining whether evidence otherwise admissible under Evidence Code section 1101, subdivision (b), should nonetheless be excluded pursuant to Evidence Code section 352: the materiality of the fact to be proved or disproved; the probative value of the other crimes evidence to prove or disprove the facts; the existence of any rule or policy requiring exclusion even if the evidence is relevant; and, the remoteness in time of the uncharged act(s).
On appeal, appellate courts review a trial court’s ruling under Evidence Code section 1101 for abuse of discretion. People v. Roldan (2005) 35 Cal.4th 646, 705.
Appellant claims that her constitutional right to a fundamentally fair trial as guaranteed by the Due Process Clause of the Fourteenth Amendment was violated. See Gideon v. Wainwright 372 U.S. 335 (1963). The prior bad act evidence was irrelevant and immaterial to any essential element in the prosecution’s case, and its admission rendered Lynch’s trial fundamentally unfair.
Pursuant to McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1385: Evidence is considered irrelevant if it fails to make any fact of consequence more or less probable. See Fed.R.Evid. 401. Irrelevant evidence may merely be a waste of time, may confuse the jury, or may cause serious prejudice to the defense. The argument regarding relevance in this case is different from that in Estelle v. McGuire 502 U.S. 62 (1991). In Estelle, the Supreme Court found that the “battered child syndrome” evidence was relevant to the intentional nature of the injuries that killed the child, a fact of consequence. The contested evidence in this case can loosely be termed “other acts” evidence. “Other acts” evidence may be relevant to a fact of consequence, or it may be relevant only insofar as it proves the character of the defendant in order to show action in conformity therewith, in which case it is a form of character evidence.
The use of "other acts" evidence as character evidence is not only impermissible under the theory of evidence codified in the California rules of evidence (Cal.Evid.Code § 1101 (West Supp.1993) and the Federal Rules of Evidence (Fed.R.Evid. 404(b)), but is contrary to firmly established principles of Anglo-American jurisprudence. Early American courts retained the rule against using "other acts" evidence as character evidence to show action in conformity therewith. See, e.g., Boyd v. United States, 142 U.S. 450, 458, 12 S.Ct. 292, 295, 35 L.Ed. 1077 (1892) (finding that admission of prior crimes committed by defendants so prejudiced their trial as to require reversal).
As elucidated by the Supreme Court in Brinegar v. United States, 338 U.S. 160, 174, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949): Guilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property.
The rule against using character evidence to show behavior in conformance therewith, or propensity, is one historically grounded rule of evidence.
The admitted evidence of “other acts” was irrelevant to a fact of consequence or was solely evidence of character. Under the historic rule against character evidence, such evidence is not relevant to any fact of consequence. No relevant inferences to a fact may be drawn from any particular piece of the prior bad acts evidence which lead only to impermissible inference’s about the appellant’s character.
The prior bad act evidence was indisputably irrelevant to any element of the prosecution’s case, including common plan and scheme, and is irrelevant to any argument that apellan acted willfully or with specific intent. The evidence thus was offered to prove character, give rise to a propensity inference, and did not tend to prove a fact of consequence. This evidence was totally irrelevant and more prejudicial than probative - thus, inadmissible under California evidence law. Its admission was in violation of the historically grounded rule against the use of “other acts” evidence to prove character.
As the U.S. Supreme Court noted in Dowling v. United States, 493 U.S. 342 (1990), when determining whether a due process violation has occurred, courts “are to determine only whether the action complained of … violates those fundamental conceptions of justice which lie at the base of our civil and political institutions, and which define the community’s sense of fair play and decency.”
Because of the lack of a case against appellant, and the pervasiveness of erroneously admitted evidence throughout the trial it is “highly probable that the error had substantial and injurious effect or influence in determining the jury's verdict.” Kotteakos, 328 U.S. at 776, 66 S.Ct. at 1253.
Kelley Lynch Vacates Her Appeal Due To Prosecutorial Retaliation
INTRODUCTION
Appellant Kelley Lynch was arrested on March 1, 2012. Her trial ended in a conviction ...
The prosecution’s theory of the legal issues in the case, stated during trial proceedings and announced in opening and closing statements at appellant Kelley Lynch’s trial, was straightforward: “One, whether or not there was a valid and lawfully issued restraining order and whether over approximately a 14-month period on several occasions Ms. Lynch violated that validly and lawful issued restraining order. Two, whether or not over a one-year period Ms. Lynch either via email or phone calls made annoying and harassing phone calls that included obscene language or threats for no good reason, not in good faith.” (RT 562)
Prosecutor Streeter thus informed the the jury in opening statements: “So the people believe that the evidence will show in the case of People of the State of California vs. Kelley Lynch that during the 80s, Mr. Leonard Cohen, who was a singer ... struck up a relationship with Ms. Lynch. They had a brief intimate relationship, and then at some point after that the relationship ended in the late 80s when Mr. Cohen’s business manager died, Mr. Cohen hired Ms. Lynch, first as his personal assistant, and then ultimately as his business manager. But unfortunately around 2004 or so, things started to go not very well between Mr. Cohen and (RT 37) Ms. Lynch. And Mr. Cohen ended the business relationship that he had with Ms. Lynch. Unfortunately, that was not the end of it for Ms. Lynch, the evidence will show. The evidence will show that shortly after the termination of the business relationship by Mr. Cohen that Ms. Lynch began an onslaught, a campaign of harassment on Mr. Cohen, and that harassment -- that harassment has continued or did continue up until February 29, 2012. (RT 38) But during this campaign, the evidence will show, that Ms. Lynch started against Mr. Cohen, she did not just limit her contact toward Mr. Cohen. (RT 38)
Ms. Rice, one of Mr. Cohen’s attorneys, decided to send out a letter, okay? Perhaps it might have appeared a bit forceful. But the evidence will show Ms. Rice has a job to do to protect her client’s interest, share a letter in February 2011 reminding Ms. Cohen [sic] that there’s a permanent Colorado restraining order. And that the California courts will enforce that restraining order. (RT 40-41)
Write a brief summary of the February 14, 2011 email thread, point out that Rice lied, and my comments about the restraining order having expired, pro per legal issues, etc.
http://www.scribd.com/doc/57415308/Kelley-Lynch-s-Conversation-With-Steven-Machat-Leonard-Cohen-and-Phil-Spector
http://www.scribd.com/doc/111041974/California-Registration-of-Leonard-Cohen-s-Restraining-Order-Against-Kelley-Lynch-Filed-May-2-2011
And indeed one of the things, the evidence will show, that she talks a lot about is tax fraud and the need to have the tax return. But the people will submit to you or show to you that this so-called business relationship, or not honoring their business relationship, indeed the most important thing that she mentions every so often the tax statement is merely a ruse. For example ... the evidence you will see ... that Ms. Lynch specifically asked for her K-1 form ... Let’s talk a little bit about Ms. Lynch’s need for the tax form or tax returns -- the evidence will show that Ms. Lynch was Mr. Cohen’s business manager. The evidence will show that Mr. [sic] Lynch -- Mr. Cohen has no clue as to what a W-2 form is, a 1099 9is, a K-1 form. The evidence will show that Ms. Lynch is the one that had all of that information, knew all that information. Mr. Cohen did not have it, does not have it and does not understand what it means. Okay. (RT 43)
Leonard Cohen Testimony: Q: Now, there is a mention of the K-1. The people ask you about some other documents. Do you know what a W-2 is? A: W-2? No, I don’t. Q: How about a 1099? A: A 1099, yes, is issued by an employer to an employee. Pages 83-84:
Page 280: Q: Okay. Now, do you know what a K-1 is now? A: I have a perfect -- a sense of what it is, but I wouldn’t be able to teach it. Q: Okay. And is it fair to say that you’ve gotten emails through the years referencing a K-1. A: That’s correct.
The defense’s theory of the case, stated during trial proceedings and announced in opening and closing statements at appellant Kelley Lynch’s trial, was equally straightforward: As Ms. Streeter mentioned, the relationship between Mr. Leonard Cohen and Ms. Kelley Lynch, it’s a long history. They started working together in 1988. (RT 44) Like Ms. Streeter mentioned, there were questions about the IRS and taxes. And so he panicked. (RT 45)
The plan was to get Ms. Lynch to work with Mr. Cohen and to pin the blame on his financial consultant. But Ms. Lynch refused to go along with that plan. 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. (RT 45) They said, 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 process. As Ms. Streeter mentioned, these are his attorneys. They have one job and one job only. To protect their client at all costs. That’s what the evidence is going to show happened here. (RT 45) Because if they ruin her credibility, well, that helps Mr. Cohen. And they have done everything in their power to hurt Ms. Lynch’s credibility. (RT 45) And yet they wanted to go and they went and tried to hurt her economically and to put a restraining order on her so they couldn’t have any contact during the litigation. That was their intent. That was their purpose. (RT 46) You’re going to see that a lot of this is asking for legitimate purposes to get legitimate information that she needed for her taxes, information that his attorneys did not want to give to her. (RT 46)
Ms. Lynch is presumed innocent. That means every single time she takes that chair she is presumed innocent. And it’s the burden of the prosecution -- Streeter: Objection; argumentative. Court: Overruled. (RT 47) You find out it’s their burden to prove her guilt beyond a reasonable doubt. That’s what their job is. And unless they can meet that job, you must go with that presumption. Streeter: Objection; argumentative. Court: This is argument. (RT 47)
He’s a celebrity. He’s a performer. He’s an entertainer. That means - that means he’s charismatic. He knows how to get people on his side. (RT 47) Because it’s their burden to prove every single element beyond a reasonable doubt. (RT 47)
The evidence will show that Ms. Lynch ... fought with the District Attorney’s to file charges against him. Was upset with the District Attorney, the L.A. County District Attorney’s didn’t file charges against Mr. Cohen. (RT 40)
When Mr. Cohen went on tour in 2010. No emails. No voice mails ... in 2011, when the emails and voice mails and onslaught started again, the evidence will show. Ms. Rice, one of Mr. Cohen’s attorneys, decided to send out a letter, okay? Perhaps it might have appeared a bit forceful. (RT 40) ... Share a letter in February 2011 reminding Ms. Cohen [sic] that there is a permanent Colorado restraining order. And that the California courts will enforce that restraining order. (RT 41)
My wages were garnished this past September, 2011, by the state. And they want my 2004 and 2005 tax returns, which is what I have been fearing. As does the IRS now. And what I am saying is that I said that I was confused about how to file my tax returns. (RT 457)
Let’s talk again about that Colorado restraining order that the evidence will show ... it’s not just that the Colorado court said ... it says, “Do not contact Mr. Cohen’s attorneys, Michelle Rice and Robert Kory.” That’s what it says. And she said okay. (RT 41)
Insert actual language from retraining order - also Kory’s address.
Okay, so once the letter was sent ... emails again to Steve Cooley, the FBI, Sopko. (RT 42)
Streeter is aware that the FBI and Agent Sopko/Treasury have been copied in on my emails ….
GET QUOTE FROM BAIL HEARING:
"I'm not accusing her of theft," he says of Lynch.
http://www.macleans.ca/article.jsp?content=20050822_110877_110877
The jurors were regaled with testimony admitted on a common design or plan theory to the effect that Lynch allegedly began a campaign to “annoy” Leonard Cohen that involved reporting his tax fraud to the Internal Revenue Service; meeting with agents from the U.S. Treasury; receiving an email from Agent Sopko/Treasury that Kory felt was a “game changer;" misappropriating funds from a corporation from which Cohen borrowed millions of dollars - based on lies that intentionally obfuscated her commissions while concealing other assets and a fraudulent expense ledger; requesting IRS form 1099 - that Cohen is obligated to provide Lynch; asking Cohen to rescind illegal K-1s that were transmitted to the IRS and State of Kentucky for the years 2003, 2004, and 2005; demanding an actual accounting that addressed corporate ownership interests, assets, liabilities, and equity; advising Cohen to cease and desist his ongoing campaign of harassment and slander against her - including his preposterous allegation (evidently one of his first lines of defense when he realized Lynch was intent on reporting his tax fraud to the IRS) that she had sex with Oliver Stone; addressing the fact that she was not served the complaint in his retaliatory lawsuit or the default judgment entered against her in May 2006; attempting to address the State wage garnishment after the FTB agreed to temporarily remove the lien against her salary; filing a Complaint with the District Attorney’s office with respect to Cohen’s theft from her in the millions - and directing them to evidence and witnesses; advising the District Attorney’s office that Leonard Cohen lies about Phil Spector; etc.
Remember what the People said the purpose of the opening statement is to give you an outline, an overview of what the People believe the evidence will show. Thank you very much. (RT 43-44)
Are the people ready to proceed? The Court: Will you call your first witness. Yes. People call Leonard Cohen to the witness stand. (RT 47)
In its closing argument, the prosecution proclaimed that “The case is not about -- about the unlawful -- whether or not Ms. Lynch was ever charged criminally with stealing from Mr. Cohen, although it does weigh a bit on her credibility issue. All right.” (RT 562) Ms. Lynch was a “con artist.” (RT 577) She expanded upon this argument by falsely stating that “This isn’t about Ms. Lynch being angry that she didn’t get her tax documents. This is Ms. Lynch being angry that Mr. Cohen figured out that she was his mark, that she was taking him to the cleaners before she could get out. That’s why she’s so angry ... And her fingers were just a bit too sticky or a bit too long before she could get her exit strategy before he found out. (RT 577) So what you have here, what this is proof of is not a woman who legitimately wants her IRS records or documents. It’s the unraveling of a con. (RT 577-578) This is a classic propensity argument. The admission of the Section 1101(b) Evidence on the highly disputed issue of a “plan” theory, the defective instructions given the jury ... are raised as claims of error in this appeal.
There is a wealth of evidence, much of it intentionally concealed or suppressed, supporting the conclusion that Ms. Lynch did not intend to annoy Leonard Cohen and did not willfully or knowingly violate a restraining order. As Ms. Lynch’s counsel told jurors in his opening statement: There were questions about the IRS and taxes. (RT 45) You’re going to see that a lot of this is asking for legitimate purposes to get information that she needed for her taxes. Information that he did not want her to have. Information that his attorneys did not want to give her. (RT 46)
Given the powerful proof that Ms. Lynch was retaliated against for reporting Cohen’s tax fraud to the IRS, and unconscionable and abusive legal tactics were used against her - including highly abused restraining orders, the prosecution was unwilling to rest its case on the evidence concerning the events that unfolded between Ms. Lynch and Mr. Cohen. Instead, they used classic character assassination and outright lies. Despite the statutory prohibition on character evidence (Evidence Code Section section 1101(a)), the prosecution sought to plug the critical gaps in its case with evidence of whom Ms. Lynch allegedly was -- evidence of her character and propensities. Much of the testimony at appellant’s trial concerned not the charges brought against Ms. Lynch, but those occurring in places as far-flung as New York and at times as distant as the mid-nineteen eighties. Throughout this trial, the court permitted the prosecution to do in its closing argument what it had been barred from doing in its opening statement: to assert that appellant had a common “plan” and scheme with respect to Leonard Cohen and thus should be convicted based on her bad character and evil propensities.
It is a testament to the strength of the exculpatory evidence the prosecution concealed through evidence suppression and the use of false testimony that, after being inundated with an avalanche of “bad character” allegations, the jury decided to convict. This situation was exacerbated by the erroneous jury instruction given by the trial court that failed to accurately provide jurors with the proper elements of the “intent to annoy” charges …
The cumulative prejudicial impact of the trial court’s errors in admitting and instructing on the evidence of uncharged offenses and acts cannot possibly be deemed harmless, particularly given the inflammatory and lurid manner in which the prosecution made use of the material throughout the trial and in closing argument. Furthermore, the prosecutor compounded the prejudicial effect of all of these errors with vituperative attacks on appellant‘s character, that included outright lies to judges and jurors, presenting perjured and false statements, concealing exculpatory evidence, and generally engaged in egregious prosecutorial misconduct that in no way resembled aggressive advocacy.
Appellant Kelley Lynch was arrested on March 1, 2012. Her trial ended in a conviction ...
The prosecution’s theory of the legal issues in the case, stated during trial proceedings and announced in opening and closing statements at appellant Kelley Lynch’s trial, was straightforward: “One, whether or not there was a valid and lawfully issued restraining order and whether over approximately a 14-month period on several occasions Ms. Lynch violated that validly and lawful issued restraining order. Two, whether or not over a one-year period Ms. Lynch either via email or phone calls made annoying and harassing phone calls that included obscene language or threats for no good reason, not in good faith.” (RT 562)
Prosecutor Streeter thus informed the the jury in opening statements: “So the people believe that the evidence will show in the case of People of the State of California vs. Kelley Lynch that during the 80s, Mr. Leonard Cohen, who was a singer ... struck up a relationship with Ms. Lynch. They had a brief intimate relationship, and then at some point after that the relationship ended in the late 80s when Mr. Cohen’s business manager died, Mr. Cohen hired Ms. Lynch, first as his personal assistant, and then ultimately as his business manager. But unfortunately around 2004 or so, things started to go not very well between Mr. Cohen and (RT 37) Ms. Lynch. And Mr. Cohen ended the business relationship that he had with Ms. Lynch. Unfortunately, that was not the end of it for Ms. Lynch, the evidence will show. The evidence will show that shortly after the termination of the business relationship by Mr. Cohen that Ms. Lynch began an onslaught, a campaign of harassment on Mr. Cohen, and that harassment -- that harassment has continued or did continue up until February 29, 2012. (RT 38) But during this campaign, the evidence will show, that Ms. Lynch started against Mr. Cohen, she did not just limit her contact toward Mr. Cohen. (RT 38)
Ms. Rice, one of Mr. Cohen’s attorneys, decided to send out a letter, okay? Perhaps it might have appeared a bit forceful. But the evidence will show Ms. Rice has a job to do to protect her client’s interest, share a letter in February 2011 reminding Ms. Cohen [sic] that there’s a permanent Colorado restraining order. And that the California courts will enforce that restraining order. (RT 40-41)
Write a brief summary of the February 14, 2011 email thread, point out that Rice lied, and my comments about the restraining order having expired, pro per legal issues, etc.
http://www.scribd.com/doc/57415308/Kelley-Lynch-s-Conversation-With-Steven-Machat-Leonard-Cohen-and-Phil-Spector
http://www.scribd.com/doc/111041974/California-Registration-of-Leonard-Cohen-s-Restraining-Order-Against-Kelley-Lynch-Filed-May-2-2011
And indeed one of the things, the evidence will show, that she talks a lot about is tax fraud and the need to have the tax return. But the people will submit to you or show to you that this so-called business relationship, or not honoring their business relationship, indeed the most important thing that she mentions every so often the tax statement is merely a ruse. For example ... the evidence you will see ... that Ms. Lynch specifically asked for her K-1 form ... Let’s talk a little bit about Ms. Lynch’s need for the tax form or tax returns -- the evidence will show that Ms. Lynch was Mr. Cohen’s business manager. The evidence will show that Mr. [sic] Lynch -- Mr. Cohen has no clue as to what a W-2 form is, a 1099 9is, a K-1 form. The evidence will show that Ms. Lynch is the one that had all of that information, knew all that information. Mr. Cohen did not have it, does not have it and does not understand what it means. Okay. (RT 43)
Leonard Cohen Testimony: Q: Now, there is a mention of the K-1. The people ask you about some other documents. Do you know what a W-2 is? A: W-2? No, I don’t. Q: How about a 1099? A: A 1099, yes, is issued by an employer to an employee. Pages 83-84:
Page 280: Q: Okay. Now, do you know what a K-1 is now? A: I have a perfect -- a sense of what it is, but I wouldn’t be able to teach it. Q: Okay. And is it fair to say that you’ve gotten emails through the years referencing a K-1. A: That’s correct.
The defense’s theory of the case, stated during trial proceedings and announced in opening and closing statements at appellant Kelley Lynch’s trial, was equally straightforward: As Ms. Streeter mentioned, the relationship between Mr. Leonard Cohen and Ms. Kelley Lynch, it’s a long history. They started working together in 1988. (RT 44) Like Ms. Streeter mentioned, there were questions about the IRS and taxes. And so he panicked. (RT 45)
The plan was to get Ms. Lynch to work with Mr. Cohen and to pin the blame on his financial consultant. But Ms. Lynch refused to go along with that plan. 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. (RT 45) They said, 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 process. As Ms. Streeter mentioned, these are his attorneys. They have one job and one job only. To protect their client at all costs. That’s what the evidence is going to show happened here. (RT 45) Because if they ruin her credibility, well, that helps Mr. Cohen. And they have done everything in their power to hurt Ms. Lynch’s credibility. (RT 45) And yet they wanted to go and they went and tried to hurt her economically and to put a restraining order on her so they couldn’t have any contact during the litigation. That was their intent. That was their purpose. (RT 46) You’re going to see that a lot of this is asking for legitimate purposes to get legitimate information that she needed for her taxes, information that his attorneys did not want to give to her. (RT 46)
Ms. Lynch is presumed innocent. That means every single time she takes that chair she is presumed innocent. And it’s the burden of the prosecution -- Streeter: Objection; argumentative. Court: Overruled. (RT 47) You find out it’s their burden to prove her guilt beyond a reasonable doubt. That’s what their job is. And unless they can meet that job, you must go with that presumption. Streeter: Objection; argumentative. Court: This is argument. (RT 47)
He’s a celebrity. He’s a performer. He’s an entertainer. That means - that means he’s charismatic. He knows how to get people on his side. (RT 47) Because it’s their burden to prove every single element beyond a reasonable doubt. (RT 47)
The evidence will show that Ms. Lynch ... fought with the District Attorney’s to file charges against him. Was upset with the District Attorney, the L.A. County District Attorney’s didn’t file charges against Mr. Cohen. (RT 40)
When Mr. Cohen went on tour in 2010. No emails. No voice mails ... in 2011, when the emails and voice mails and onslaught started again, the evidence will show. Ms. Rice, one of Mr. Cohen’s attorneys, decided to send out a letter, okay? Perhaps it might have appeared a bit forceful. (RT 40) ... Share a letter in February 2011 reminding Ms. Cohen [sic] that there is a permanent Colorado restraining order. And that the California courts will enforce that restraining order. (RT 41)
My wages were garnished this past September, 2011, by the state. And they want my 2004 and 2005 tax returns, which is what I have been fearing. As does the IRS now. And what I am saying is that I said that I was confused about how to file my tax returns. (RT 457)
Let’s talk again about that Colorado restraining order that the evidence will show ... it’s not just that the Colorado court said ... it says, “Do not contact Mr. Cohen’s attorneys, Michelle Rice and Robert Kory.” That’s what it says. And she said okay. (RT 41)
Insert actual language from retraining order - also Kory’s address.
Okay, so once the letter was sent ... emails again to Steve Cooley, the FBI, Sopko. (RT 42)
Streeter is aware that the FBI and Agent Sopko/Treasury have been copied in on my emails ….
GET QUOTE FROM BAIL HEARING:
"I'm not accusing her of theft," he says of Lynch.
http://www.macleans.ca/article.jsp?content=20050822_110877_110877
The jurors were regaled with testimony admitted on a common design or plan theory to the effect that Lynch allegedly began a campaign to “annoy” Leonard Cohen that involved reporting his tax fraud to the Internal Revenue Service; meeting with agents from the U.S. Treasury; receiving an email from Agent Sopko/Treasury that Kory felt was a “game changer;" misappropriating funds from a corporation from which Cohen borrowed millions of dollars - based on lies that intentionally obfuscated her commissions while concealing other assets and a fraudulent expense ledger; requesting IRS form 1099 - that Cohen is obligated to provide Lynch; asking Cohen to rescind illegal K-1s that were transmitted to the IRS and State of Kentucky for the years 2003, 2004, and 2005; demanding an actual accounting that addressed corporate ownership interests, assets, liabilities, and equity; advising Cohen to cease and desist his ongoing campaign of harassment and slander against her - including his preposterous allegation (evidently one of his first lines of defense when he realized Lynch was intent on reporting his tax fraud to the IRS) that she had sex with Oliver Stone; addressing the fact that she was not served the complaint in his retaliatory lawsuit or the default judgment entered against her in May 2006; attempting to address the State wage garnishment after the FTB agreed to temporarily remove the lien against her salary; filing a Complaint with the District Attorney’s office with respect to Cohen’s theft from her in the millions - and directing them to evidence and witnesses; advising the District Attorney’s office that Leonard Cohen lies about Phil Spector; etc.
Remember what the People said the purpose of the opening statement is to give you an outline, an overview of what the People believe the evidence will show. Thank you very much. (RT 43-44)
Are the people ready to proceed? The Court: Will you call your first witness. Yes. People call Leonard Cohen to the witness stand. (RT 47)
In its closing argument, the prosecution proclaimed that “The case is not about -- about the unlawful -- whether or not Ms. Lynch was ever charged criminally with stealing from Mr. Cohen, although it does weigh a bit on her credibility issue. All right.” (RT 562) Ms. Lynch was a “con artist.” (RT 577) She expanded upon this argument by falsely stating that “This isn’t about Ms. Lynch being angry that she didn’t get her tax documents. This is Ms. Lynch being angry that Mr. Cohen figured out that she was his mark, that she was taking him to the cleaners before she could get out. That’s why she’s so angry ... And her fingers were just a bit too sticky or a bit too long before she could get her exit strategy before he found out. (RT 577) So what you have here, what this is proof of is not a woman who legitimately wants her IRS records or documents. It’s the unraveling of a con. (RT 577-578) This is a classic propensity argument. The admission of the Section 1101(b) Evidence on the highly disputed issue of a “plan” theory, the defective instructions given the jury ... are raised as claims of error in this appeal.
There is a wealth of evidence, much of it intentionally concealed or suppressed, supporting the conclusion that Ms. Lynch did not intend to annoy Leonard Cohen and did not willfully or knowingly violate a restraining order. As Ms. Lynch’s counsel told jurors in his opening statement: There were questions about the IRS and taxes. (RT 45) You’re going to see that a lot of this is asking for legitimate purposes to get information that she needed for her taxes. Information that he did not want her to have. Information that his attorneys did not want to give her. (RT 46)
Given the powerful proof that Ms. Lynch was retaliated against for reporting Cohen’s tax fraud to the IRS, and unconscionable and abusive legal tactics were used against her - including highly abused restraining orders, the prosecution was unwilling to rest its case on the evidence concerning the events that unfolded between Ms. Lynch and Mr. Cohen. Instead, they used classic character assassination and outright lies. Despite the statutory prohibition on character evidence (Evidence Code Section section 1101(a)), the prosecution sought to plug the critical gaps in its case with evidence of whom Ms. Lynch allegedly was -- evidence of her character and propensities. Much of the testimony at appellant’s trial concerned not the charges brought against Ms. Lynch, but those occurring in places as far-flung as New York and at times as distant as the mid-nineteen eighties. Throughout this trial, the court permitted the prosecution to do in its closing argument what it had been barred from doing in its opening statement: to assert that appellant had a common “plan” and scheme with respect to Leonard Cohen and thus should be convicted based on her bad character and evil propensities.
It is a testament to the strength of the exculpatory evidence the prosecution concealed through evidence suppression and the use of false testimony that, after being inundated with an avalanche of “bad character” allegations, the jury decided to convict. This situation was exacerbated by the erroneous jury instruction given by the trial court that failed to accurately provide jurors with the proper elements of the “intent to annoy” charges …
The cumulative prejudicial impact of the trial court’s errors in admitting and instructing on the evidence of uncharged offenses and acts cannot possibly be deemed harmless, particularly given the inflammatory and lurid manner in which the prosecution made use of the material throughout the trial and in closing argument. Furthermore, the prosecutor compounded the prejudicial effect of all of these errors with vituperative attacks on appellant‘s character, that included outright lies to judges and jurors, presenting perjured and false statements, concealing exculpatory evidence, and generally engaged in egregious prosecutorial misconduct that in no way resembled aggressive advocacy.
Saturday, March 2, 2013
Kelley's Letter To IRS Transmitting Their Fraud Form 3949a With Respect To Leonard Cohen's Fraudulent Refund I Discovered At Trial
From: Kelley Lynch <kelley.lynch.2010@gmail.com>
Date: Sat, Mar 2, 2013 at 8:06 PM
Subject: IRS Form 3949a - Leonard Cohen's Fraudulent Refund and the Fraudulent Default Judgment
To: "*irs. commissioner" <*IRS.Commissioner@irs.gov>, Washington Field <washington.field@ic.fbi.gov>, ASKDOJ <ASKDOJ@usdoj.gov>, "Kelly.Sopko" <Kelly.Sopko@tigta.treas.gov>, "Doug.Davis" <Doug.Davis@ftb.ca.gov>, Dennis <Dennis@riordan-horgan.com>
To the IRS Commissioner's Staff,
Here is the IRS fraud Form 3949a relating to Leonard Cohen's fraudulent refund. This relates to Refund Application 1037704856 dated December 13, 2005. I have a great deal of evidence and have transmitted a great deal of evidence to IRS proving that Leonard Cohen willfully concealed corporate books and records when he obtained the fraudulent default judgment against me. That judgment wrongfully alters certain federal and state tax returns I have filed, including for the year 2003. See Traditional Holdings phantom income addressed on that return. I have no idea where that information was obtained. I did not receive a K-1 from TH. Leonard Cohen has stolen from me. He is not the sole beneficial owner of Traditional Holdings, LLC or Blue Mist Touring Company, Inc. He was well aware that the assignments re. the IP were non-revocable. He dictated language in the minutes. In any event, see attached. Leonard Cohen cannot stop lying, committing fraud, or stealing from what I can tell. I do indeed consider this taxpayer dangerous to me personally and I feel the same about his lawyers, Robert Kory and Michelle Rice, as well as prosecutor Sandra Jo Streeter, and because they seemed to be complicit with Leonard Cohen against me in the sham intent to annoy matter, I think it's safe to say that I find DA Steve Cooley, prosecutor Alan Jackson, and Investigator Jack Horvath personally dangerous to my welfare. It is obvious to me that they have all attempted to keep Leonard Cohen credible. In any event, that is how I feel. The recent attempt to retaliate against me by prosecutor Sandra Jo Streeter is a legal outrage. That involves the incident where she lied to Detective Viramontes/LAPD. Clearly, these people will do anything. That's why I am abandoning the appeal process although it's my legal right. I also am sick and tired of their lies. Please expain to me the City Attorney's obsession with my taxes, federal tax forms I need, the illegal K-1s, etc. What authority do they have?
For the record, this refund shocks the conscience.
All the best,
Kelley
Date: Sat, Mar 2, 2013 at 8:06 PM
Subject: IRS Form 3949a - Leonard Cohen's Fraudulent Refund and the Fraudulent Default Judgment
To: "*irs. commissioner" <*IRS.Commissioner@irs.gov>, Washington Field <washington.field@ic.fbi.gov>, ASKDOJ <ASKDOJ@usdoj.gov>, "Kelly.Sopko" <Kelly.Sopko@tigta.treas.gov>, "Doug.Davis" <Doug.Davis@ftb.ca.gov>, Dennis <Dennis@riordan-horgan.com>
To the IRS Commissioner's Staff,
Here is the IRS fraud Form 3949a relating to Leonard Cohen's fraudulent refund. This relates to Refund Application 1037704856 dated December 13, 2005. I have a great deal of evidence and have transmitted a great deal of evidence to IRS proving that Leonard Cohen willfully concealed corporate books and records when he obtained the fraudulent default judgment against me. That judgment wrongfully alters certain federal and state tax returns I have filed, including for the year 2003. See Traditional Holdings phantom income addressed on that return. I have no idea where that information was obtained. I did not receive a K-1 from TH. Leonard Cohen has stolen from me. He is not the sole beneficial owner of Traditional Holdings, LLC or Blue Mist Touring Company, Inc. He was well aware that the assignments re. the IP were non-revocable. He dictated language in the minutes. In any event, see attached. Leonard Cohen cannot stop lying, committing fraud, or stealing from what I can tell. I do indeed consider this taxpayer dangerous to me personally and I feel the same about his lawyers, Robert Kory and Michelle Rice, as well as prosecutor Sandra Jo Streeter, and because they seemed to be complicit with Leonard Cohen against me in the sham intent to annoy matter, I think it's safe to say that I find DA Steve Cooley, prosecutor Alan Jackson, and Investigator Jack Horvath personally dangerous to my welfare. It is obvious to me that they have all attempted to keep Leonard Cohen credible. In any event, that is how I feel. The recent attempt to retaliate against me by prosecutor Sandra Jo Streeter is a legal outrage. That involves the incident where she lied to Detective Viramontes/LAPD. Clearly, these people will do anything. That's why I am abandoning the appeal process although it's my legal right. I also am sick and tired of their lies. Please expain to me the City Attorney's obsession with my taxes, federal tax forms I need, the illegal K-1s, etc. What authority do they have?
For the record, this refund shocks the conscience.
All the best,
Kelley
--
The
Judge admonished the witness, “Do you understand that you have sworn to
tell the truth?” “I do.” “Do you understand what will happen if you are
not truthful?” “Sure,” said the witness. “My side will win.”
Kelley's Cover Letter To IRS Transmitting IRS Fraud Form Re. Illegal K-1s LC Investments LLC Transmitted To The IRS
NOTE: Leonard Cohen is the sole 100% owner of LC Investments, LLC. The only reason I would have received these forms would have to do with some type of fraudulent activity.
From: Kelley Lynch <kelley.lynch.2010@gmail.com>
Date: Sat, Mar 2, 2013 at 7:32 PM
Subject: Form 3949a - Leonard Cohen - Illegal K-1s Re. LC Investments, LLC
To: "*irs. commissioner" <*IRS.Commissioner@irs.gov>, Washington Field <washington.field@ic.fbi.gov>, ASKDOJ <ASKDOJ@usdoj.gov>, "Kelly.Sopko" <Kelly.Sopko@tigta.treas.gov>, "Doug.Davis" <Doug.Davis@ftb.ca.gov>, Dennis <Dennis@riordan-horgan.com>
To the IRS Commissioner's Staff,
I found a semi-competent fillable PDF form 3949a online. I want to simply submit this form as an attachment. I am working on way too many things that seem to involve the IRS. The form didn't hold certain information. Leonard Cohen is single from what I know. I believe this would be considered a false or fraudulent document and the use of my social security number seems to be identity theft among other things. I do believe this taxpayer is dangerous to me. The same goes for his two lawyers, Robert Kory and Michelle Rice. These people appear willing to do anything and everything in their ongoing attempts to blame Leonard Cohen's wrongdoing on others. He should simply have paid his taxes, paid his manager commissions, paid out the monies owed for the intellectual property I own (see the non-revocable assignments), and had he really been defrauded by his advisers, he should have gone into the IRS with me. I personally believe the tax fraud dates back to when he first obtained a green card.
This form relates to the K-1s. The next form will relate to the outrageous fraudulent refund this man applied for. I would assume he concealed all corporate books and records, ownership interest, and other material documents and facts. If he used the fraudulent ledger, please understand that I wasn't overpaid management fees. My ownership interest in various entities and assets was willfully neglected. I view Leonard Cohen as the alter ego of these entities. They would include Blue Mist Touring Company, Inc. (which is also LC Productions in another state), Traditional Holdings, LLC, and I would like an investigation into what happened when Richard Westin formed Old Ideas, LLC in Delaware and correctly assumed I had a 15% ownership interest in the publishing. I do.
A sentence in the second description box cut off. Richard Westin never told me to do anything with that particular form. Yes, these forms available and I would assume the IRS has them. I do have the Kentucky K-1s issued to me by LC Investments, LLC.
See attached.
All the best,
Kelley
Date: Sat, Mar 2, 2013 at 7:32 PM
Subject: Form 3949a - Leonard Cohen - Illegal K-1s Re. LC Investments, LLC
To: "*irs. commissioner" <*IRS.Commissioner@irs.gov>, Washington Field <washington.field@ic.fbi.gov>, ASKDOJ <ASKDOJ@usdoj.gov>, "Kelly.Sopko" <Kelly.Sopko@tigta.treas.gov>, "Doug.Davis" <Doug.Davis@ftb.ca.gov>, Dennis <Dennis@riordan-horgan.com>
To the IRS Commissioner's Staff,
I found a semi-competent fillable PDF form 3949a online. I want to simply submit this form as an attachment. I am working on way too many things that seem to involve the IRS. The form didn't hold certain information. Leonard Cohen is single from what I know. I believe this would be considered a false or fraudulent document and the use of my social security number seems to be identity theft among other things. I do believe this taxpayer is dangerous to me. The same goes for his two lawyers, Robert Kory and Michelle Rice. These people appear willing to do anything and everything in their ongoing attempts to blame Leonard Cohen's wrongdoing on others. He should simply have paid his taxes, paid his manager commissions, paid out the monies owed for the intellectual property I own (see the non-revocable assignments), and had he really been defrauded by his advisers, he should have gone into the IRS with me. I personally believe the tax fraud dates back to when he first obtained a green card.
This form relates to the K-1s. The next form will relate to the outrageous fraudulent refund this man applied for. I would assume he concealed all corporate books and records, ownership interest, and other material documents and facts. If he used the fraudulent ledger, please understand that I wasn't overpaid management fees. My ownership interest in various entities and assets was willfully neglected. I view Leonard Cohen as the alter ego of these entities. They would include Blue Mist Touring Company, Inc. (which is also LC Productions in another state), Traditional Holdings, LLC, and I would like an investigation into what happened when Richard Westin formed Old Ideas, LLC in Delaware and correctly assumed I had a 15% ownership interest in the publishing. I do.
A sentence in the second description box cut off. Richard Westin never told me to do anything with that particular form. Yes, these forms available and I would assume the IRS has them. I do have the Kentucky K-1s issued to me by LC Investments, LLC.
See attached.
All the best,
Kelley
I Have Requested A Formal IRS Opinion On The City Attorney's Conduct With Respect To Federal Tax Matters, Etc.
From: Kelley Lynch <kelley.lynch.2010@gmail.com>
Date: Sat, Mar 2, 2013 at 5:48 PM
Subject: My Tax Matters
To: "*irs. commissioner" <*IRS.Commissioner@irs.gov>, ASKDOJ <ASKDOJ@usdoj.gov>, Washington Field <washington.field@ic.fbi.gov>, "Kelly.Sopko" <Kelly.Sopko@tigta.treas.gov>, "Doug.Davis" <Doug.Davis@ftb.ca.gov>, Dennis <Dennis@riordan-horgan.com>
To the IRS Commissioner's Staff,
If the IRS can't discuss people's tax matters publicly, how can the City Attorney's office? Isn't this illegal - and they don't have any authority to speak about my federal or state tax matters, 1099, the illegal K-1s, etc. What is actually going on here? I think it just completely outrageous and illegal. And then Streeter is asking if the IRS wanted me to pay taxes before? What business is that of hers? She is talking to Cohen and his representatives about my taxes and tax payments? Do you think she was trying to get information? Why would she think the IRS wanted tax payments from me? She saw the IRS copied in. She knew Agent Tejeda might take the stand. My question is this - is this illegal activity? I was essentially prosecuted over a federal tax matter. And then there's Phil Spector. Are you telling me that my son is not entitled to his own opinion that he would be in college had Cohen not stolen from me? I have been prosecuted also for having my own opinions. Reading these people writing about my tax matters infuriates me and I want an investigation and I should have one. I think this is a highly illegal situation and I would like a formal IRS opinion on the matter. Also, I would like your opinion on why the DA didn't prosecute Cohen.
All the best,
Kelley
--
Date: Sat, Mar 2, 2013 at 5:48 PM
Subject: My Tax Matters
To: "*irs. commissioner" <*IRS.Commissioner@irs.gov>, ASKDOJ <ASKDOJ@usdoj.gov>, Washington Field <washington.field@ic.fbi.gov>, "Kelly.Sopko" <Kelly.Sopko@tigta.treas.gov>, "Doug.Davis" <Doug.Davis@ftb.ca.gov>, Dennis <Dennis@riordan-horgan.com>
To the IRS Commissioner's Staff,
If the IRS can't discuss people's tax matters publicly, how can the City Attorney's office? Isn't this illegal - and they don't have any authority to speak about my federal or state tax matters, 1099, the illegal K-1s, etc. What is actually going on here? I think it just completely outrageous and illegal. And then Streeter is asking if the IRS wanted me to pay taxes before? What business is that of hers? She is talking to Cohen and his representatives about my taxes and tax payments? Do you think she was trying to get information? Why would she think the IRS wanted tax payments from me? She saw the IRS copied in. She knew Agent Tejeda might take the stand. My question is this - is this illegal activity? I was essentially prosecuted over a federal tax matter. And then there's Phil Spector. Are you telling me that my son is not entitled to his own opinion that he would be in college had Cohen not stolen from me? I have been prosecuted also for having my own opinions. Reading these people writing about my tax matters infuriates me and I want an investigation and I should have one. I think this is a highly illegal situation and I would like a formal IRS opinion on the matter. Also, I would like your opinion on why the DA didn't prosecute Cohen.
All the best,
Kelley
--
The
Judge admonished the witness, “Do you understand that you have sworn to
tell the truth?” “I do.” “Do you understand what will happen if you are
not truthful?” “Sure,” said the witness. “My side will win.”
--
The
Judge admonished the witness, “Do you understand that you have sworn to
tell the truth?” “I do.” “Do you understand what will happen if you are
not truthful?” “Sure,” said the witness. “My side will win.”
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