NEW YORK, April 9, 2019 /PRNewswire/ -- The City of New York, Manhattan District Attorney, Seven New York State Court Justices and other officials were sued for deprivation of rights under the color of law a civil violation under the law (42 U.S. Code § 1983) and a criminal violation under the law (18 U.S. Code § 242). The Civil Rights Complaints, Penn v. City of New York, et. al., 19-cv-02106 (under 42 U.S. Code § 1983) and Penn v. Amelia Cottrell, et. al., 19-cv-02741 (under Bivens1) alleges that an indictment dated February 10, 2014 (New York Supreme Court Indictment #073/2014) and conviction of Lawrence E. Penn III, the Founder of Private Equity firm, The Camelot Group was unlawful from the very beginning. Civil Rights and Bivens actions allege that members of the Securities and Exchange Commission submitted a Complaint to the Manhattan District Attorney with false statements on January 30, 2014 resulting in an unlawful larceny-based indictment under the color of law in order to gain a civil case benefit by use of an unlawful conviction. The false statements included:
- "…representing that Penn received a master's degree from UMUC Europe when he did not." Penn clearly did receive the 3 master's degrees including the 2 in question as evidenced by the record.
- "CASO Management had precluded investors in the fund from redeeming their interests." According to the Partnership Agreement in which Penn operated as the General Partner (Document #122, Exhibit 3), there is no "redemption clause" and Mr. Penn actually approved a transfer on May 4, 2011.
COURT OF APPEALS OF THE STATE OF NEW YORK CLARIFIED LARCENY STATUE BY DECLARATORY DECREE TO JUDGES AND PROSECUTORS: JOINT OR COMMON OWNERS CANNOT BE CHARGED OR FOUND GUILTY OF LARCENY
The lawsuits allege that the top count of larceny and the associated counts which rely on larceny are in direct violation of statutory and common law as decided by the Court of Appeals of the State of New York (the highest court in New York State) which ruled by declaratory decree over 25 years ago in long-established law in People v. Zinke, 556 N.Y.S.2d 11, 76 N.W.2d 8 (1990), that a "general partner in limited partnership cannot be found guilty of larceny for misappropriating partnership funds" because they are joint or common owners. Specifically, it is unlawful to charge a joint or common owner with interests in rights to distributions in limited partnership with larceny.
Judge Judith Kaye, the first woman to serve as chief judge of the Court of Appeals of the State of New York, made several points clarifying the larceny statute in People v. Zinke, 76 N.Y.2d 8 (1990), (1) "general partner in a limited partnership cannot be found guilty of larceny for misappropriating partnership funds," (2) the Court specifically ruled "the subject of partnership defalcations to be addressed by any other penal provisions…..or by civil litigation," (3) the Court specifically ruled that the standard is "joint or common" owners….."could not be prosecuted for larceny even if he had misappropriated partnership property." (4) the Court specifically stated that "Commission that drafted article 155--the purpose of this provision was to continue in force what "has long been the law of New York" that "a partner who appropriates partnership property is not guilty of larceny from his co-partners," (5) the Court specifically stated that "Regularly a man cannot commit felony of goods, wherein he hath a property," (6) the Court specifically ruled in Zinke that "Thus, it is clear that, in New York, partners (because they are joint or common beneficial owners) cannot be charged with larceny for misappropriating firm assets," and (7) The Court specifically ruled in Zinke that "The important point is that limited partnerships are partnerships in the eyes of the law of this State, and as such they come within the rule that partners (joint or common beneficial owners) cannot be guilty of larceny when they steal from them."
MR. PENN WAS A JOINT AND COMMON BENEFICIAL OWNER OF RIGHTS TO DISTRIBUTIONS FROM THE LIMITED PARTNERSHIP AND ACTING GENERAL PARTNER BY VIRTUE OF HIS INVESTED CAPITAL AND MANAGEMENT RIGHTS SIMILARLY SITUATED TO OTHERS
Mr. Penn, a joint and common beneficial owner with interests in rights to distributions in the limited partnership and the sole acting General Partner in the Limited Partnership called Camelot Acquisitions Secondary Opportunities, LP. Like other General Partners around the country, Mr. Penn established the Partnership, raised all the money, invested the capital, and met the contractual essence of the Partnership Agreement. The Complaints allege that the larceny-based indictment has no basis in law, was used to justify an arrest warrant and a bail of $2.5 million at arraignment as evidenced by Hearing Minutes.
The Securities and Exchange Commission acknowledges in a February 22, 2019 letter that, "From 2007 through 2014, he [Mr. Penn] was the general partner of Camelot Acquisitions Secondary Opportunities, LP (the Fund)." As part of Mr. Penn's plea, he was required to forfeit his beneficial ownership in the partnership based on the money he put in the partnership. Obviously, you can't forfeit something you do not own. Complaints alleges that the courts knew Mr. Penn was an owner and that his money was in the partnership.
MR. PENN WAS KNOWN AS A COMMUNITY LEADER WITH A SPOTLESS RECORD, MODEL CITIZEN WHO SUPPORTED VETERANS, WOMEN AND MINORITY CAUSES
The lawsuits allege Mr. Penn was detained in Manhattan Detention Center (MDC) for 14 months under the color of state law from February 10, 2014 to at least March 16, 2015, where a plea under the color of state law was entered. Mr. Penn states, "his plea and conviction are unconstitutionally void and invalid" because he was not informed of the law after direct inquiries to his defense attorney Benjamin Brafman. Prior to his incarceration, Mr. Penn had never been arrested, let alone detained or incarcerated. On the contrary, Mr. Penn is a former military officer who served honorably in the U.S. Army after graduation from the United States Military Academy at West Point with 3 masters' degrees to include a Columbia MBA, executive education from Harvard, Peking, Oxford and Dartmouth, as well as 20 years of professional management, executive experience in private equity, mergers and acquisitions, and community leadership. He was one of the pioneer private equity secondary market.
NEW YORK STATE JUSTICES RELIED ON COERCED PLEA FROM ALLEGEDLY TORTURED VETERAN
Complaint alleges that a co-defendant was essentially tortured in Riker's Island based on statements in a related Civil Rights Complaint in the United States District Court in the Southern District of New York Case Number 1:17-cv-01116 (NRB) Document #1 (the "Related Civil Rights Complaint") and prior to these events, had never been arrested, let alone detained or incarcerated in any jail or correctional facility and was also a veteran who served honorably in the U.S. Army. Mr. Ewers, represented by Carmen Jack Giordano, Esq. was detained at Rikers Island, and transferred by Department of Corrections employees, officers, and administrators to George Motchen Detention Center which was described as a "gang house" with various gangs including "La Patria."
Mr. Ewers, as alleged in the Related Civil Rights Complaint, was targeted by "threats of physical violence" with a "shank" which resulted in an "attack" resulting in "severe" fractures and other injuries," and other traumatic injuries to include "blindness" nerve damage "behind his right eye" multiple "seizures" loss of balance and "control of his bowel and bladder functions." Related Complaint also alleges his "pleas" for medication were refused, and "employees and agents" at the facility pushed their hands inside of his rectum and "forced a catheter" into Mr. Ewers "urethra, causing excruciating pain." Complaints allege that Judge Laura Ward established an excessive bail to non-violent African-American veterans and successful businessmen, who honorably served in the U.S. Army, with no prior history in the criminal justice system.
As stated in the Civil Rights Complaint, Mr. Ewers "vehemently protested his innocence and plead guilty on or about December 18, 2014 due to "the inhumane lack of medical treatment" and his physical and medical injuries which are described as "catastrophic." Mr. Ewers as evidenced by Mr. Penn's Complaint (Exhibit E), entered a motion to withdraw his plea through his counsel David B. Krauss, Esq. on or about January 23, 2015 to Judge Ward. The reasons for withdrawing his plea to include, 1) that he did not enter into the plea "voluntarily," 2) On November 23, 2014 he was unjustifiably severely beaten, viciously attacked and 3) did not receive adequate medical attention or protection from corrections officials. In light of these circumstances Judge Ward denied the motion to withdraw his plea on February 17, 2015.
LAWSUITS ALLEGE RECORD, FACTS AND LAW ARE CLEAR: NEW YORK OFFICE OF PERKINS COIE, LLP REPRESENTED MR. PENN PRO BONO FOR 2 YEARS REFUTING THE VALIDITY OF THE CONVICTION
Lawsuits allege that Appellate Division First Department's ruling defies the record, facts, law and logic. as implied by. Mr. Penn was represented by Keith Miller, Esq. and Jalina Hudson, Esq. of the New York office of Perkins Coie, LLP who represented him in the appellate courts. On October 24, 2017, in a letter from Perkins Coie, LLP, his counsel specifically states, "Here, it is undisputed that Mr. Penn was the sole owner a single member LLC (SMLLC) that was named as the "general partner" of the limited partnership…the founding documents establish that 100% of the beneficial ownership partnership interest which was imputed to Mr. Penn. Thus, Mr. Penn owned everything that the LLC owned, including the ownership interest in the limited partnership. Indeed, as a result of his conviction Mr. Penn was required to forfeit his ownership interest in the limited partnership. As such, Mr. Penn's conviction of larceny should be vacated, just as the defendant in Zinke 's conviction of larceny was vacated by this Court."
Mr. Penn states that, "he is thankful for the support by Keith Miller, Esq. and Jalina Hudson, Esq. of the New York office of Perkins Coie, LLP who represented him in the appellate courts as well as West Point graduates and friends." Mr. Penn also states that "the facts and the law on the face of the court records are clear and require that the appellate courts, particularly, the Court of Appeals of the State of New York hear the case on the merits." The lawsuits allege that given the long-standing larceny exemption as clearly interpreted by the Court of Appeals of the State of New York, his answers in the plea could not constitute and were not sufficient to maintain a larceny-based conviction beyond a reasonable doubt. Mr. Penn was housed in MDC for 14 months even though he had never been in contact with the criminal justice system in his entire life and served 2 years. In an email, Judge Ward acknowledged to officers of the Court that Mr. Penn "clearly has touched a number of lives" but that "I do not think that Mr. Penn should be permitted to retain any interest in the Fund" and signed the email with her initials "LAW." The Complaint alleges that Judge Laura A. Ward actions were in direct conflict with the LAW.
JOINT AND COMMON OWNERS IN THE PARTNERSHIP REFUTE VALIDITY OF CONVICTION
Complaints allege that the conviction also defies what the investors (the head of the limited partner advisory board) wrote the Court in regarding the Limited Partnership Agreement, in a sworn affidavit March 28, 2018 states, "The $9.2 million in question is part of the $123 million of committed capital in the Partnership and my understanding of the LPA was that it should be interpreted taking the entire agreement…the $9.2 million were not ill-gotten gains and was to be used by Mr. Penn at his discretion."
LAWSUIT ALLEGES THAT MR. PENN'S PLEA DID NOT FORFEIT HIS RIGHT BY FEDERAL LAW TO APPEAL AND TO BE HEARD ON THE MERITS BY AN IMPARTIAL TRIBUNAL, BECAUSE CLAIMS IMPLICATE THE POWER OF THE STATE TO CONVICT
Mr. Penn's Civil Rights Complaint alleges that on March 16, 2015, Plaintiff was coerced to answer "yes" to plea questions at the threat of physical harm similar to his co-defendant Mr. Ewers. On April 20, 2015, the Complaint alleges Mr. Penn signed an insufficient forfeiture statement that required him to give up his interest in the Partnership based on a top charge of larceny in violation of a longstanding rule or custom under statutory and common law.
Judge Karla Moskowitz of the Appellate Division First Department which covers Manhattan certified that there were "questions of law or fact involved which ought to be reviewed" and her own colleagues (those getting sued) defied her and the U.S. Supreme Court by ruling that "By pleading guilty, [Mr. Penn] automatically forfeited appellate review of his claim that he was an owner of the stolen property and thus could not be guilty of larceny" quoting People v. Levin 57 NY2d 1008 (1982) which is impaired by U.S. Supreme Court rulings in Class v. United States, 583 U.S. ____ (2018) (quoting United States v. Broce, 488 U. S. 563 (1989), which states that the U.S. Supreme "Court repeated that a guilty plea does not bar a claim on appeal "where on the face of the record the court had no power to enter the conviction or impose the sentence" 488 U. S., at 569). U.S. Supreme Court stated that,
"When reversing the intermediary appellate court's decision in Class, the Supreme Court explicitly refers to, and re-affirms, its rulings in Blackledge v. Perry, 417 U.S. 21 (1974) and Menna v. New York, 423 U.S. 61 (1975), which both held that a defendant who pleads guilty can still raise on appeal any constitutional claim that does not depend on challenging his "factual guilt." Simply put, where the appellate claim implicates "the very power of the State" to prosecute the defendant, a guilty plea cannot by itself bar it. Blackledge, 417 U. S. at 30. Here, Mr. Penn argued precisely that on appeal-that the State did not have the authority to charge him with larceny in light of his joint or common ownership in the limited partnership at issue."
COMPLAINTS ALLEGE NON-JUDICIAL ACTIONS BY STATE JUDGES AND PROSECUTORS SHOWING THAT QUALIFIED AND ABSOLUTE IMMUNITY MUST FALL
The Complaints allege that both state and federal judges must uphold New York State law and declaratory decrees and that Federal Judges reliance on an unlawful conviction "on its face" is unconstitutional. Judge Valerie E. Caproni was assigned to both civil rights cases to include the Bivens action where she is a defendant in clearly conflict with law. Mr. Penn entered a motion for disqualification of Judge Caproni, a motion to e-File, and memorandum of law in response to Judge Caproni's order to show cause. Without answering either the motion for disqualification or motion to e-File, the case was transferred from Judge Caproni to Judge Jesse E. Furman the same day. In a rare move and within just hours, Judge Furman moved to dismiss the action by responding to Judge Caproni's order to show cause. Mr. Penn states that, "although I have been able to e-File in the past in SDNY based on completing requisite requirements, it appears the court is making it difficult for me by preventing equal access to electronic filing in this case." Mr. Penn states that unlike SDNY, "both New York State Courts and the United States Court of Appeals for the 2nd Circuit Court allow equal access to e-filing in a non-discriminatory manner
Mr. Penn states that, "I will submit the requisite motions to disqualify and appeal under Rule 60(b) and hope that this case receives the fair and appropriate attention from key leaders to include the general partners in limited partnership community, Governor Cuomo, state legislators, federal officials, Chief Judge Colleen McMahon of SDNY, Department of Justice Civil Rights Division and President Trump. The civil rights actions implicate clear violations of law under 42 U.S. Code § 19832 and 18 U.S. Code § 2423 by prosecutorial and judicial actors. Letters referring the cases to several federal and state officials were sent out to New York State legislators, Chief Judge Colleen McMahon of SDNY, U.S. Congressman Hakeem Jeffries of the Judiciary Committee, Department of Justice Civil Rights Division and President Trump.
The lawsuits bring to light unequal treatment of African-American litigants, wrongful convictions of U.S. veterans who honorably serve, the shortcomings of state level plea deals, unfair treatment of those who defend themselves, deprivations of immunities and privileges under long-established law as well as questions as to when immunity falls for state and federal prosecutorial and judicial officials.
1 Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 338 (1971)
2 42 U.S. Code § 1983. CIVIL ACTION FOR DEPRIVATION OF RIGHTS. Section 1983 of Title 42 states that "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated." See also, Section 309 of the Federal Courts Improvement Act of 1996.
3 18 U.S. Code § 242: DEPRIVATION OF RIGHTS UNDER THE COLOR OF LAW. Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States. For the purpose of Section 242, acts under "color of law" include acts not only done by federal, state, or local officials within their lawful authority, but also acts done beyond the bounds of that official's lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim. The offense is punishable by a range of imprisonment up to a life term, or the death penalty, depending upon the circumstances of the crime, and the resulting injury.
42 U.S. Code § 1983
CITY OF NEW YORK
SOURCE The Camelot Group