STATE OF MISSOURI

]
COUNTY OF GREENE ]
SELF-EXECUTING AFFIDAVIT OF
PAUL BENTON WEEKS III
[28 U.S.C. § 1746]
My name is Paul Benton Weeks III. I am of majority age. I state the
following, based upon my personal knowledge and belief:
1. I am an attorney in Springfield, Missouri. I graduated from the
University of Virginia School of Law in 1981. I am a member of the
Missouri Bar.
2. This affidavit stems from routine work I performed becoming familiar
with a newly-assigned federal judge in the civil case of Murray et al. vs.
Scott & Sevier et al. ("the B.A.S.S. case") (No. 94-F-1266-N), currently
pending in the United States District Court for the Middle District of
Alabama, Northern Division. I am one of plaintiff Murray's attorneys. The
name of this federal judge is Mark Everett Fuller of Enterprise, Alabama.
Mr. Fuller was appointed federal judge on August I, 2002, confinned by the
U.S. Senate on November 14, 2002, and received his commission on
November 26,2002.
3. This affidavit identifies clear evidence of criminal misconduct by Mr.
Fuller - criminal acts which appear to have been committed by Mr. Fuller
both before and after becoming a United States judge. The evidence of
criminal wrongdoing identified in this affidavit implicates lying and perjury;
criminal conspiracy and criminal attempt to defraud the Retirement System
of Alabama (RSA) of approximately $330,000; and, misuse of the office of
district attorney and federal judge in furtherance of a criminal conspiracy
and criminal attempt to defraud. Mr. Fuller may have violated the federal
criminal mail fraud statute, 18 U.S.C. § 1341. Mr. Fuller may have also
misappropriated more than $70,000 in public funds while District Attorney
for Alabama's 12th Judicial Circuit - in furtherance of a conspiracy and
scheme to defraud the RSA. Finally, Mr. Fuller may have purposely
obstructed the background investigation conducted by the U.S. Senate and
the F.B.I. in connection with his judicial appointment.
4. Because this affidavit identifies evidence of misconduct by a federal
judge which may have occurred in the Alabama counties of Montgomery,
Coffee and/or Pike, copies of this affidavit and attached exhibits are being
submitted to the following federal and state agencies, governmental bodies .
and/or officials:
United States Department of Justice
Public Integrity Section - Criminal Division
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
Hon. Eleanor (Ellen) Idelle Brooks
District Attorney for the 15
th
Judicial Circuit
Post Office Box 1667
Montgomery, Alabama 36102-1667
HoD. Gary L. McAliley
District Attorney for the 12th Judicial Circuit
Post Office Box 1102
Enterprise, Alabama 36331-1102
Hon. F. James Sensenbrenner
U.S. House of Representatives - Committee on the Judiciary
Chairman-Ranking Republican Member
2138 Rayburn HOB
Washington, DC 20515
Hon. John Conyers, Jr.
U.S. House of Representatives - Committee on the Judiciary
Ranking Democratic Member
2138 Rayburn HOB
Washington, DC 20515
Hon. Orrin G. Hatch
U.S. Senate - Committee on the Judiciary
Chairman-Ranking Republican Member
224 Dirksen Senate Office Building
Washington, DC 20510
2
Hon. Patrick J. Leahy
U.S. Senate - Committee on the Judiciary
Ranking Democratic Member
224 Dirksen Senate Office Building
Washington, DC 20510
Eleventh Circuit Judicial Council
56 Forsyth St. N.W.
Atlanta, GA 30303
Hon. William Harold Albritton, Chief Judge
United States District Court for the Middle District of Alabama
P.O. Box 629 ·
Montgomery, Alabama 36101
The Retirement System of Alabama
135 South Union Street
Post Office Box 302150
Montgomery, AL 36130-2150
Affiant's Legal Background
5. I received my legal education and training at the University of
Virginia School of Law in Charlottesville, Virginia. At UV A, I was first in
my criminal law class - receiving the top grade in criminal law and an award
for excellence in criminal law. While in law school, I also worked for a
legal publisher, Michie Bobbs Merrill, updating the Criminal Code of
Georgia. I also worked with UV A's criminal law clinic. During my legal
career, I have worked with one of the world's leading authorities on white-
collar crime, G. Robert (Bob) Blakey, chief author of the federal
racketeering (RICO) laws and a law professor at Notre Dame School of
Law. In sum, my legal education and training have given me certain skills
in matters of criminal law - including detection and evaluation of criminal
evidence.
6. In my civil practice, I have demonstrated accuracy in detecting and
uncovering evidence of conduct contrary to law. In the seminal case of In
Re General Motors Corp. Pick-Up Truck Fuel Tank Products Liability
3
Litigation, 55 F.3d 768 (3rd Cir. 1995), cert. denied sub nom., General
Motors Corp. v. French et ai., 516 U.S. 824, 116 S.Ct. 88, 133 L.Ed.2d 45
(1995) ("GM Trucks"), I was one of several attorneys representing class-
member objectors. However, I was the only attorney to piece together the
fact that General Motors and the plaintiffs' class-action lawyers had entered
into an improper fee agreement. On appeal, the United States Court of
Appeals for the Third Circuit noted a "smoking gun" that supported my
assertion that GM's fee agreement was contrary to law. 55 F.3d at 810 n.
27.
7. In GM Trucks, I was also the only attorney who contended that at least
four federal appeals courts had misapplied Rule 23 of the Federal Rules of
Civil Procedure by relaxing class-certification standards in proposed class-
settlement cases. The Third Circuit agreed with my contention in a ruling
central to the court's holding. 55 F.3d at 778, 797-799. The important
class-action law I advocated in GM Trucks was subsequently adopted by the
Supreme Court of the United States· in another case, Amchem Products, Inc.
v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997).
8. In GM Trucks, I was also the only attorney who contended that some
federal district courts were incorrectly applying Rule 23 by failing to make
specific findings of fact to support class· certifications. The Third Circuit
expressly agreed with my contention - referring to my appellate brief in its
opinion ("Brief of French Objectors") and using my contention as a basis for
another essential holding in GM Trucks. 55 F.3d at 800.
9. In Adams v. St. Francis Regional Medical Center, 955 P.2d 1169
(Kan. 1998), the Supreme Court of Kansas ruled that a medical malpractice
plaintiff has a constitutional right to obtain and present evidence of his or her
medical care. In so ruling, the Adams court declared that a Kansas medical
peer review statute was unconstitutional as applied. I was the principal
author of the winning brief in Adams. I developed the constitutional issues
successfully presented in Adams. As a result of my work in Adams, we were
able to secure the first ruling by a state supreme court recognizing a
constitutional (due process/fair trial) right to obtain and present critical
evidence in a civil case. One of the nation's leading legal authorities on
evidence, Prof. Edward J. Imwinkelreid, has called Adams "a major
breakthrough" and "of tremendous importance" in extending the
constitutional right to obtain and present evidence in civil cases. See E.J.
4
Imwinkelreid, "The Blockbuster Adams Decision," TRIAL, pp. 26, 30
(October 1998).
10. In August 1997, a widow w o m a ~ Nancy Moore, asked me for help.
She claimed to be the victim of a false lawsuit filed by a rich and powerful
Missouri judge, Peter Rea of Taney County. Subsequently, I uncovered
compelling evidence that Judge Rea had indeed filed a false and fraudulent
lawsuit against Mrs. Moore and her husband, now deceased, in a scheme to
obtain a large judgment against the Moores so Judge Rea could then execute
the judgment and acquire the Moores' highly-coveted 476-acre farm. The
serious allegations of misconduct that I made against Judge Rea were
reported in the Springfield News-Leader on May 2, 1998. See Exhibit 1
attached.
11. On July 3, 2000, the Circuit Court of Pulaski County found the
allegations I had made against Judge Rea were true. The trial court
sanctioned Rea, finding that he had filed a false lawsuit, false affidavits and
false pleadings and committed perjury and fraud on the court. The
Springfield News-Leader reported the circuit court's decision against Judge
Rea the following day, July 4, 2000, in an article entitled "Rea Committed
Perjury, Judge Rules." See Exhibit 2 attached.
12. On appeal, the Missouri Court of Appeals affirmed the trial court's
judgment of sanctions against Judge Rea, ruling that my allegations against
Rea had been proved by clear and convincing evidence. Rea v. Moore, 74
S.W.3d 795, 801 (Mo. App. 2002), attached as Exhibit 3. In December
2002, the Missouri Lawyers' Weekly identified Rea v. Moore as one of the
most important judicial decisions in Missouri in 2002.
13. I was simply doing my job in the Rea v. Moore case when I came
across clear evidence of wrongdoing by Judge Rea. Likewise, I was simply
doing my job in the B.A.S.S. case when I came across clear evidence of
wrongdoing by federal judge- Mark Fuller. Lawyers have a duty to report
any apparent misconduct by a judge - especially when the evidence points to
criminal misconduct.
14. In a moment, I will identify compelling evidence that points to
criminal misconduct by Judge Fuller. However, before doing so, I should
provide more information about the B.A.S.S. case - the case that led me to
Judge Fuller. To understand the B.A.S.S. case is to understand why it was
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important to become familiar with Mr. Fuller when he was assigned to be
the new judge in the B.A.S.S. case.
The B.A.S.S. Case
(Murray et aL v. Scott & Sevier et aL)
15. In 1967, Ray Scott of Montgomery, Alabama, founded the Bass
Anglers Sportsman's Society of America (B.A.S.S. or the Society).
B.A.S.S. is a national association of bass fishermen founded to protect the
health of our nation's public fishing waters and to promote children's fishing
programs. By law, conservation and the promotion of children's activities
are charitable purposes. Also by law, any organization holding itself out for
a charitable purpose is required to operate and serve the public as a
charitable organization (i.e., constructive-charitable trust/duty).
16. In early 1968, newspapers reported the founding ofB.A.S.S., based on
a press release issued by Scott proclaiming B.A.S.S. to be a "national
organization" that would "serve to benefit this country's conservation
program, with particular efforts in conserving our bass fishing waters." See
"Based in Alabama, Bass Addicts Form Group," The State And The
Columbia Record (Columbia, S.C.), p. 6-D (Jan. 21, 1968).
17. Since B.A.S.S. was formed, the Society's BASS Master Magazine has
repeatedly proclaimed that the founding purposes of B.A.S.S. are to protect
the health of our nation's public waters and to promote children's fishing
programs - charitable purposes.
18. In 1970, B.A.S.S. filed antipollution suits in federal courts in
Alabama, Tennessee and Texas. In those suits, B.A.S.S. held itself out to be
a "national association" "existing primarily for the purpose of conserving .
rivers and streams for the benefit of the public generally and sportsmen in
particular." Bass Angler Sportsman Society v. United States Steel
Corporation et al., 324 F.Supp. 412, 414 n. 1 (M.D. Ala. 1971), affd sub
nom. Bass Anglers Sportsman Society of America v. Koppers Company, Inc.,
447 F.2d 1304 (5
th
Cir. 1971) (the federal court in Montgomery, Alabama
specifically noting that "Bass is a national association"); Bass Anglers
Sportsman's Society of America v. Scholze Tannery, Inc., 329 F.Supp. 339,
347 (E.D. Tenn. 1971) (Tennessee federal court accepting and reporting as
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true that the . "Bass Anglers Sportsman's Society of America, Inc., is a
society . . . existing primarily for the purpose of conserving rivers and
streams for the benefit of the public generally and sportsmen in
particular") (classic charitable-trust language used by a federal court to
described B.A.S.S. and its purpose). See Exhibits 4 and 5 attached.
19. In another B.A.S.S. antipollution suit, a Texas federal court described
B.A.S.S. as a "society" and "special interest group[]" apparently "dedicated
to achieving the abatement of water pollution." Bass Anglers Sportsman's
Society of America v. U.S. Plywood-Champion Papers, 324 F.Supp. 302,
303 (S.D. Tex. 1971). See Exhibit 6 attached.
20. In 1975, the Society's BASS Master Magazine announced a B.A.S.S.
membership dues increase, quoting B.A.S.S. founder and president Ray
Scott saying that, "It is our responsibility to continue to support conservation
and research projects, not hedge on our promises." In that same article,
Scott said to the national membership of B . A . S ~ S . , "With your continued
support, together we'll make ·BASS a stronger conservation group .... " See
Exhibit 7 attached.
21. Today, B.A.S.S. has more than 2,700 nonprofit B.A.S.S. chapters
(local B.A.S.S. clubs). B.A.S.S. also has more than 40 nonprofit state
B.A.S.S. federations.
22. In February 1992, Bradley Murray, a lifetime member of B.A.S.S.,
filed a lawsuit against Ray Scott and associates in federal court in Wichita,
Kansas. In 1995, Murray's suit was transferred to the federal court in
Montgomery, Alabama.
23. Mr. Murray's lawsuit alleges that Scott and and others devised a
deceptive scheme to loot (steal) all of the Society's membership dues and
BASS Master Magazine advertising revenues - money that should have been
used to accomplish the Society's charitable mission: clean-water efforts and
the promotion of children's fishing programs.
24. Mr. Murray's suit, filed on behalf of himself and all other members of
B.A.S.S. nationwide, alleges that Scott and others stole more than $75
million from the Society that should have been used for conservation and
children's fishing programs. As of today, the amount of money that Ray
Scott and his associates have allegedly looted from B.A.S.S. could top $150
7
million - making B.A.S.S. one· of the worst conservation and children's
frauds in U.S. legal history.
25. Mr. Murray's lawsuit describes the scheme Scott and his associates
have used to loot B.A.S.S. of its conservation and children's funds. In April
1969, nearly 1 ~ years after Scott formed B.A.S.S., he then fonned a for-
profit corporation with a name deceptively similar to that of the Bass
Anglers Sportsman Society of America. The name Scott chose for his for-
profit corporation: Bass Anglers Sportsman's Society of America, Inc. (later
changed to B.A.S.S., Inc.).
26. It is this deceptive similarity between B.A.S.S. and B.A.S.S., Inc. that
has allowed Scott and his associates to loot all of the Society's membership
dues and other revenues by way of a corporation with a name deceptively
similar to B.A.S.S. - BA.S.S., Inc. This looting scheme is based on a shell
game between B.A.S.S. (the Society) and B.A.S.S., Inc. (Scott's for-profit
corporation). B.A.S.S. membership dues and the Society's magazine
revenues come into B.A.S.S. (the Society), but instead of being spent on the
Society's conversation and children's programs, Scott and his associates
transfer all of the Society's funds from B.A.S.S. to B.A.S.S., Inc. and then
into their pockets.
27. Shortly after Murray filed that B.A.S.S. lawsuit, the Macon Telegraph
published an article about B.A.S.S. and Murray's lawsuit, entitled "Is There
Something Fishy at BASS?" See Exhibit 8 attached.
28. In December 1995, the Wall Street Journal published an extensive
article about the B.A.S.S. case. See Exhibit 9 attached. The WSJ article
reports Scott's claim (part of the cover-up) that B.A.S.S. was never really a
society but, rather, a for-profit business Scott claimed to own. However,
Scott's claim is contrary to more than 30 years of published statements by
Scott and his associates holding B.A.S.S. out to be a national association of
bass fishermen formed to serve two charitable purposes: conservation the
promotion of children's fishing programs.
29. In this same Wall Street Journal article, one of the world's leading
authorities on white-collar crime, G. Robert Blakey, chief author of the
federal RICO laws for Congress, is quoted as saying that the B.A.S.S. case
involves a "large, longtime massive fraud." See Exhibit 9 attached.
Convinced that the B.A.S.S. case involves a huge nationwide fraud on bass
8
fishennen, conservationists and children, Mr. Blakey agreed in 1992 to
become one of the attorneys for plaintiff Murray in the B.A.S.S. case.
30. The B.A.S.S. case also involves a huge fraud on the membership of
B.A.S.S., because many believe that B.A.S.S. is a conservation-fishing
society, not a for-profit business. Indeed, one of Scott's closest associates
and a co-defendant in the B.A.S.S. case (Helen Sevier) was quoted in
Success Magazine as saying that people look on B.A.S.S. as a "nonprofit-
type organization." See "Renegades: They Destroyed The Old To Create The
New: Artists Of The Impossible," Success Magazine (Feb. 1991) at 24.
And, the Virginia B.A.S.S. Federation specifically refers to the "non-profit"
purposes ofB.A.S.S. in its constitutionlby-Iaws. See Exhibit 10 attached.
31. A basic rule of association law is that association members are co-
owners of the association and its property. In fact, in the B.A.S.S. case, the
Kansas federal court (Judge Belot) has already ruled that associations are co-
owned by their members. See Murray v. Sevier, 156 F.R.D. 235, 244-45,
250 (D.Kan. 1994) ("each B.A.S.S. member is a tenant in common with
respect to B.A.S.S. property, and each holds a joint, common and undivided
interest in said property"). Judge Belot also ordered that the B.A.S.S. case
be certified as an association class action (Rule 23.2).
32. In effect, the B.A.S.S. case involves the theft by inside officials of a
national association, its magazine and all of its membership dues. It is no
different than if Charlton Heston stole the National Rifle Association (NRA)
and assets by way of a deceptively similar for-profit corporation named
NRA, Inc. Properly understood, what Ray Scott and his associates have
done to the Bass Anglers Sportsman's Society of America is no different
than insiders stealing Ducks Unlimited, the Sierra Club, the NRA or the
National Geographic Society.
33. The members of B.A.S.S., including Murray, are entitled to win their
lawsuit - based on undisputed public facts and universal rules of law. For
more than 30 years, Scott and his associates have publicly held B.A.S.S. out
to be an association. By law, an association is co-owned by its members. It
is undisputed that Ray Scott and his associates have pocketed all B.A.S.S.
funds as their own. Consequently, Scott and his associates have breached
their fiduciary duties to the association's members as a matter of law.
9
34. In addition, for more than 30 years, Scott and his associates have
publicly held B.A.S.S. out to be an organization founded primarily for two
charitable purposes. This charitable public holding out is undisputed.
Therefore, Murray and the membership of B.A.S.S. are entitled to win their
lawsuit as a matter of basic charitable law.
35. There is another reason Murray and the membership of B.A.S.S. are
entitled to win their lawsuit as a matter of law. B.A.S.S. is comprised of
more than 2,700 nonprofit B.A.S.S. chapters and more than 40 nonprofit
state B.A.S.S. federations. It is a legal impossibility to operate a nationwide
nonprofit organization as a for-profit business - which is precisely what
Scott and his associates claim the right to do. The operation of the Bass
Anglers Sportsman's Society of America as a for-profit business is
completely unlawful.
36. The point to my detailed discussion of the B.A.S.S. case is this: based
on more than 30 years of public facts that cannot be disputed, combined with
universal principles of association and charitable law, Mr. Murray and the
membership of B.A.S.S. are entitled to win the B.A.S.S. lawsuit and cannot
lose unless the judge in the case: (a) inadvertently or intentionally
disregards, or is unfaithful to, the universal rules of law that control the
outcome of the B.A.S.S. case; or (b) is dishonest and/or corruptible,
vulnerable or susceptible to improper influence.
37. In every lawsuit, the parties have a constitutional (due process) right
to a fair and honest judge above reproach. This core right to judicial
integrity is especially critical in a case such as B.A.S.S., where as much as
$150 million is at stake and the end result could expose a huge nationwide
conservation and children's fraud.
38. There are also politics at work in the B.A.S.S. case. Since the late
1970s, Ray Scott has used his (ill-gotten) wealth and prominence to align
with the Bushes. In a 1999 vanity-press biography, Scott repeatedly
mentions his connection with the Bushes. See R.H. Boyle, BASS BOSS: The
Inspiring Story of Ray Scott and the Sportfishing Industry He Created
(Whitetail Trail Press, Pintlala, AL) at 203, Exhibit 11 attached. Scott's
biography reports that both father and son Bush have helped Scott when
requested. Id. at 203, 263-264. Chapter 20 of Ray Scott's biography is
entitled, "The White House Connection." Id. at 232.
10
39. Scott's 1999 biography also suggests that Scott enjoys special access
with Gov. Bush, now President of the United States and a "life member of
B.A.S.S." ld. at 293. Scott is also quoted in this book as saying that:
"George W. told me that outside his father and family, the two men who had
had the most profound effect on his life were Billy Graham and Ray Scott.
One had taught him about faith and the other about bass fishing." ld. at 293.
40. Ray Scott's claim to enjoy a special connection with the Bush family
is not mere braggadocio. Former President Bush wrote a letter to the Wall
Street Journal in January 1996 criticizing the WSJ for publishing its
December 13, 1995 article about the B.A.S.S. case and its obvious merit.
41. Concerns that the B.A.S.S. case could be subject to political influence
are valid. For example, prominent Washington D.C. attorney Roger Mehle,
a longtime lawyer, fonner Reagan administration official and lifelong
Republican has charged the current Bush administration with attempting to
undermine a class-action fraud lawsuit filed on behalf of a federal employee
retirement fund against a "well-connected" computer software company.
See The Lawyer's Column, "Lawsuit Adds to Turmoil at Retirement Fund,"
The Washington Post (Feb. 10,2003) at page E01.
42. In fact, after the B.A.S.S. case was transferred to Alabama, someone
in the Montgomery federal court clerk's office confided in me that he/she
was "worried" about the B.A.S.S. case. The clear implication was that this
person, and perhaps others in the clerk's office, were "worried" that because
of the politics and the connections enjoyed by the B.A.S.S. defendants, the
B.A.S.S. case would not be decided on its merits. I should note, however,
that the conversation I had with this person occurred before Judge
Thompson was assigned to the B.A.S.S. case.
43. In sum, the political connections Ray Scott and the other B.A.S.S.
defendants enjoy have also made it necessary for Mr. Murray and his
attorneys to ensure that any judge appointed to the B.A.S.S. case is a person
of llllquestioned integrity who can transcend politics and any improper
influence.
44. The importance of becoming familiar with any judge assigned to the
B.A.S.S. case has already been illustrated in this case. In 1995, when the
B.A.S.S. case was transferred to the federal court in Montgomery, Alabama,
the case was assigned to Judge Ira DeMent.
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45. Simply doing my job, I researched Judge DeMent's background and
discovered that while serving as an Alabama U.S. attorney, Mr. DeMent was
involved in three of the 1970 B.A.S.S. antipollution suits and had been told
in a letter by a B.A.S.S., Inc. attorney (Morris Dees) that B.A.S.S. is a
"national association." See Exhibit 12 attached. My research and
investigation led to other information suggesting that Judge DeMent might
have knowledge of facts material to the B.A.S.S. case.
46. Based on my work, it became clear Judge DeMent was not qualified
to serve as a judge in the B.A.S.S. case. The federal court of appeals in
Atlanta agreed and ordered Judge DeMent removed from the B.A.S.S. case.
See Murray v. Scott, 253 F.3d 1308 (lIth Cir. 2001), Exhibit 13 attached. In
reaching its decision, the Eleventh Circuit relied on our background
investigation of Judge DeMent.
47. When the Eleventh Circuit sent the B.A.S.S. case back to
Montgomery, Judge Thompson was assigned to the case. We researched
Judge Thompson and concluded he was qualified to serve as the judge in the
B.A.S.S. case.
48. In December 2003, I was notified by Murray's counsel of record,
Randall E. Fisher, that Judge Fuller had been assigned judge in the B.A.S.S.
case. This was unexpected, because Judge Thompson: (a) had been the
judge in the B.A.S.S. case for well over a year; (b) had spent substantial time
mastering the case; and (c) had been asked by the parties to decide the case
without a jury.
49. After learning Judge Fuller would replace Judge thompson, I simply
did my job becoming familiar with Judge Fuller. I started by conducting
internet research. I discovered news reports and reference to an editorial in
the Montgomery Advertiser that raised disturbing questions about Mr. Fuller.
Background Information And
Evidence Of Wrongdoing By Mr. Fuller
50. The following are news articles I found that raised disturbing
questions about Mr. Fuller:
12
Phillip . Rawls, "Nearly Doubled Salary Won't Boost Investigator's
Pension," Associated Press (AP) (Dec. 4, 2002);
Editorial, "Backloading, Retirement Board Stops Pension Boost,"
Montgomery Advertiser (Dec. 5, 2002);
Kim Lewis, "Circuit Judge McAliley Applies For Position As District
Attorney," The Southeast Sun at lA (Dec. 11, 2003);
Stephen Stetson, "Judge Blasts DA's Office," The Messenger (Troy,
AL) (Dec. 13, 2002);
Editorial, "DA Office Comes Under Fire," The Messenger (Troy,AL)
(Dec. 15, 2002);
Kim Lewis, "Folmar Defends District Attorneys Office," The
Southeast Sun On Line Edition (Dec. 18, 2002); and
Nan Stinnett, "Siegelman Appoints New District Attorney," The
Enterprise Ledger (Dec. 24, 2002).
51. One of the first articles I came across was the Associated Press article
by Phillip Rawls, dateline Montgomery, Ala., December 4, 2002, entitled
"Nearly Doubled Salary Won't Boost Investigator's Pension." This article,
attached as Exhibit 14, reported in pertinent part:
A south Alabama investigator whose salary nearly doubled in one
year to $152,014 won't be allowed to use the skyrocketing income
to boost his state pension by $1,000 a month, despite a plea from a
new federal judge who approved the pay hike.
The board of the Employees Retirement System voted against Bruce
DeVane on Wednesday, turning aside arguments from his former
boss, new U.S. District Judge Mark Fuller.
. . . . De Vane is chief investigator for the district attorney of Coffee
and Pike counties. Fuller, who recently stepped down as district
attorney to become a U.S. district judge in Montgomery, appeared
before the retirement board Wednesday to support DeVane.
13
The fonner district attorney [Fuller] said he boosted DeVane's pay
from $80,307 in 1999 to $152,014 in 2000 to compensate him for
working nights and weekends on developing policies and
procedures manuals for the office.
. . .. Fuller said DeVane wants to retire because of health problems,
and his extra pay in 2000 should be considered nonnal compensation
in computing his pension.
Under state law, a retiree's pension is based on his best three years of
payout of the last 10. The staff of the state pension program has
refused to count DeVane's $152,014 salary because they consider the
extra income to be overtime, which is not used to calculate a pension.
DeVane appealed to the board of the Employees Retirement System,
which set up the hearing Wednesday.
Marc Reynolds, deputy director of the Retirement Systems of
Alabama, said that if the $152,014 salary was counted, it would boost
DeVane's pension by $1,000 a month.
If DeVane were to retire Feb. 1, his monthly pension would be $4,835
without the high year and $5,871 with it, Reynolds said. If the 49-
year-old investigator lives a nonnal life span, he would collect about
$330,000 extra by using the high year, Reynolds said .
. David Bronner, CEO of the Retirement Systems of Alabama, said the
pension program stays on the lookout for employees whose
compensation increases dramatically shortly before they retire.
"Spiking is something that can wipe out a pension fund," Bronner
said.
Reynolds said De Vane's 2000 salary was out of line with what
investigators for state agencies earn. Their pay range goes from
$40,000 to $83,000, he said.
But Fuller said state law gives a district attorney complete control
over his staff's salary. "What I have done is legal under the law," he
said.
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52. This AP article raised disturbing questions about Mr. Fuller. First, Dr.
Bronner (RSA CEO) reportedly used the word "spiking" in reference to Mr.
Fuller's attempt to obtain a higher pension for Mr. DeVane. Spiking is a
form of pension fraud - especially if accompanied by a false statement
of fact knowingly made in an attempt to obtain financial benefits.
Spiking is the manipulation of an employee's salary shortly before
retirement in a scheme to obtain higher retirement benefits than otherwise
pennitted. Spiking is a fraud on retirement funds and a fraud on honest
employees and retirees. For public retirement funds, spiking is also a fraud
on the government and taxpayers.
53. This AP article reported that Mr. Fuller, "a new federal judge,"
appeared before the RSA board of control ("appeal board") in an effort to
obtain substantially more retirement benefits for Mr. DeVane. Yet, the AP
article reported that the RSA appeal board rejected Mr. Fuller's statements
and unanimously ruled against the benefits increase. Because I correctly
asswned Judge Fuller was under oath in that proce"eding [see Code of Ala. §
36-27-27(a)], and because the RSA appeal board rejected DeVane's appeal,
it appeared to me that the appeal board did not believe Judge Fuller.
To me, it appeared that if the RSA appeal board had believed Judge
Fuller, the board would have approved (and indeed may have been
obligated to approve) DeVane's appeal for increased benefits.
54. This AP article also included information consistent with spiking and
a scheme to defraud a pension fund. The article reported that DeVane's
salary "nearly doubled in one year to $152,014" - also describing the salary
increase as "skyrocketing income." Such descriptions are strong
indications of a pension-spiking scheme. And the fact De Vane retired only a
year after Fuller spiked DeVane's salary strongly indicates a well-planned
conspiracy to defraud the Alabama public employees' retirement fund by
way of Fuller's spiking of DeVane's salary shortly before retirement.
55. This AP article also reported that Mr. Fuller represented to the RSA
that he [Fuller] paid DeVane $152,014 in 2000 to compensate DeVane for
also working nights and weekends "developing policies and procedures
manuals for the office." For reasons I will not discuss now, Mr. Fuller's
statement is not believable.
15
56. After reading this AP article, it appeared that the RSA appeal board
did not believe Mr. Fuller's testimony. For a new federal judge to appear
before a state agency and not be believed is a serious matter.
57. In addition, the AP article reported that Mr. Fuller claimed that the
law gave Fuller complete control to pay De Vane any salary amount Fuller
wanted to pay. See Exhibit 14 attached (at page 2).
58. Mr. Fuller's claim is an incorrect statement of the law. Government
officials may not authorize or pay salaries in excess of the fair and honest
value of actual services rendered to the government/public. This basic rule
of government and fiduciary law is also codified in 18 U.S.C. § 1346, which
makes it a federal crime for a state or local official to use the U.S. mails in
furtherance of a scheme to defraud the public of honest government services.
Federal and state law limits the compensation Fuller gave DeVane to the
fair and honest value of government services actually performed by Mr.
DeVane.
59. Ironically, Mr. Fuller's incorrect statement of the law, quoted in the
AP article, suggests the guilty state of mind (mens rea) under which
Fuller was operating when Fuller spiked DeVane's salary. In essence,
Mr. Fuller revealed that to his way of thinking, he could give his buddy
DeVane an extra $70,000+ in public funds and, even if their salary spiking
scheme failed, they would still enjoy complete immunity under the law. Mr.
Fuller's thinking is wrong. The law does not give immunity to those who
conspire or attempt to defraud a government agency or pension fund.
60. To conclude here, after I found and read this AP article, it appeared
that Mr. Fuller, the new federal judge appointed to the B.A.S.S. case, had
spiked De Vane's salary and lied to the RSA in a scheme to defraud the
Alabama public employees' retirement fund of some $330,000. Further
investigation confIrmed (and added to) my concerns.
61. During my research, I saw reference to an editorial published by the
Montgomery Advertiser on December 5, 2002. This editorial is about Mr.
Fuller's spiking of DeVane's salary and the attempt by these two men to use
the spiked salary to obtain $330,000 in extra retirement benefits. This
editorial was published one day after new federal judge Fuller testified
before the RSA appeal board. A copy of this editorial is attached as Exhibit
15. It states in pertinent part:
16
BACKLOADING
Retirement Board Stops Pension Boost
The taxpayers of Alabama owe the State Employment Retirement
System board and staff a note of gratitude for protecting the public
purse.
The attempted raid on the retirement system involved the chief
investigator for the district attorney of Coffee and Pike counties,
Bruce DeVane. Luckily for taxpayers, it was stopped by the RSA
board.
In 1999, DeVane was paid the handsome wage of $80,307. But in
2000, as he approached retirement, DeVane's pay was almost
doubled, zooming to $152,014.
Since state retirement pay is based on earnings in the highest three
years in the last 10 years of work, that huge increase would have
raised DeVane's retirement pay by $1,000 per month. If the
investigator, who is 49, lived the average life span expected for a man
of his age, retirement officials estimate this one-year pay boost
would cost a bout $330,000 extra.
DeVane's former boss, then-district attorney Mark Fuller, said he
raised DeVane's pay to compensate him for working nights and
weekends on developing policies and procedures manuals for the
district attorney's office. Fuller has since been named a U.S.
district judge in Montgomery ..•.
62. This Montgomery Advertiser editorial is telling. It describes the
activities of Fuller and De Vane as an "attempted raid on the retirement
system." It applauds the RSA for "protecting the public purse" and
taxpayers. It clearly suggests that Fuller's spiking of De Vane's salary was
bogus and for the improper purpose of obtaining extra retirement benefits to
which DeVane was not entitled. To me, this Advertiser editorial raised even
more disturbing questions about new federal judge Mark Fuller. For
history's sake, I should also note that on the date this editorial was published
(Dec. 5), Fuller had only been a new federal judge for nine (9) days. In only
17
. nine (9) days, Fuller had already brought the federal judiciary into public
disrepute, thus violating Canon 1 of the Model Code of Judicial Conduct
(1990).
63. On December 11,2002, The Southeast Sun (Enterprise, AL) published
an article by Kim Lewis headlined, "Circuit Judge McAliley Applies for
Position as District Attorney." See Exhibit 16 attached. It reports Judge
McAliley applied for the district attorney's position vacated after Mark
Fuller became federal judge. The article reports Judge McAliley was
prompted to apply because of "questionable practices" in the DA' s office
under Fuller. The article also reports McAliley wrote a letter to Governor
Siegelman saying "terrible things had come to exist" in the DA's office
under Fuller, including questionable financial dealings.
64. In this same edition of The Southeast Sun, a companion article was
published under the headline "RSA Denies Extra Retirement Funds For
DeVane." See Exhibit 16 attached. It reports the RSA denied DeVane's
appeal for higher. retirement benefits. The article explains that district
attorney Mark Fuller paid DeVane the "extraordinary compensation" and
quotes RSA official Don Nelson saying that the RSA "has received feedback
from taxpayers who were outraged at DeVane's compensation 'and
justifiably so. '" Mr. Nelson is also quoted saying that, "Taxpayers should
really be outraged if it were to stand."
65. On December 13, 2002, The Messenger (Troy, AL) published a front
page article headlined "Judge blasts DA's office." See Exhibit 17 attached.
The article details Judge McAliley's allegation that questionable financial
dealings had occurred while Mark Fuller was district attorney. The article
reports as "notable" the lack of any effort by Joel Folmar to defend Mark
Fuller for spiking DeVane's salary.
66. On December 15, 2002, The Messenger (Troy, AL) published an
editorial headlined, "DA office comes under fire." See Exhibit 18 attached .
. It says in pertinent part:
Practices and procedures in the District Attorney's Office have
come under fire in recent weeks, and the public is right to be
increasingly concerned.
18
Since Mark FuUer, district attorney for Pike and Coffee counties,
resigned Dec. 3 to accept a federal judgeship, a questionable pay
raise and challenges to the financial management of the office
have surfaced.
In the first instance, the state retirement board questioned a pay raise
that nearly doubled the salary of an investigator in one year - from
$80,000 to $152,000. Fuller said the raise was due the investigator
because of extra work done to complete manuals for the office.
The retirement board questioned its legitimacy, inferring that the
one-year raise was designed to skew the pension calculation for
the investigator.
Now, the circuit judge who works most closely with the office has
written a letter to Gov. Don Siegelman, challenging the fiscal
management of the office. Judge George McAliley - who
admittedly seeks the DA appointment - says employees in that office
were being given Christmas bonuses of up-to $4,000, while others
were asked to pay for office supplies with their own money. -
McAliley also hinted that the Child Support Unit was in danger of
being closed.
Now, the public is left wondering just what is taking place in the
District Attorney's office. _ ..
_ . _ . the governor needs to move quickly to appoint a new DA, and he
needs to press for accountability in that office. It is too important to
the people of Pike and Coffee counties to be caught in a firestorm of
allegations and controversy_
67. The Messenger's editorial described the story that Judge Fuller told
the RSA appeal board in an attempt to justify the huge increase in DeVane's
salary (i.e., that DeVane also worked nights and weekends on office
manuals). The Messenger editorial then made this compelling observation:
"The retirement board questioned its legitimacy, inferring that the one-
year raise was designed to skew the pension calculation for the
investigator. "
68. This illustrates that The Messenger inferred from the RSA's rejection
of Fuller's story the same thing I initially surmised: that the RSA believed
19
Fuller was not telling the truth and that Fuller had given De Vane an extra
$70,000+ in an attempt to "skew the pension calculation for the investigator"
to get an extra $330,000 in benefits.
69. On December 24, 2002, The Enterprise Ledger (Enterprise, AL)
published an article by Nan Stinnett headlined, "Siegelman appoints new
district attorney." It reported that Gov. Siegelman appointed Judge Gary
McAliley as the new district attorney for the 12th Judicial Circuit - the DA
position vacated by Mark Fuller. The article refers to the Montgomery
Advertiser's editorial of Dec. 5, 2002 that blasted DeVane and Fuller; refers
to alleged fmancial problems in the DA's office under Fuller; and reports
that Enterprise community leaders had "expressed concern about issues in
the district attorney's office" and had asked McAliley to become the new
DA in order to clean up the DA's office after Fuller's departure.
A Telepbone Call To Alabama
70. On or about January 30, 2003, I telephoned Judge McAliley in
Alabama. I introduced myself and explained the purpose for my call. I
explained that a new federal judge, Mark Fuller, had been assigned to the
B.A.S.S. case. I briefly explained the B.A.S.S. case and the importance of
having a judge of unquestioned integrity. I explained having found news
articles that raised disturbing questions about Mr. Fuller.
71. Most importantly, I told Judge McAliley that based on the news
articles that I had read, my impression was that the RSA did not believe
Judge Fuller at DeVane's appeal hearing. Judge McAliley said I had done
my homework and confinned that my impression was correct. Judge
McAliley then said that he had met with RSA officials and that an RSA
official told McAliley that every member on the RSA board believed
Mark Fuller had lied and that Fuller had lied under oath.
72. At that point, I realized the situation was serious. Because of the
gravity of the situation, I told Judge McAliley that I would schedule a trip to
Alabama to investigate further.
20
My Trip To Alabama
73. On Friday, February 21, 2003, I met Gary McAliley in his district
attorney's office in Troy, Alabama. I asked Mr. McAliley to prepare a self-
executing affidavit about the RSA official who said the board believed that
Judge Fuller had lied. Mr. McAliley agreed to do so. See Exhibit 19
attached.
74. Mr. McAliley's affidavit states in pertinent part:
I was a state judge for approximately 27 years. Recently, I was
appointed by the Governor of Alabama as District Attorney, 12th
Judicial Circuit, State of Alabama to fill a vacancy left by Mark Fuller
who was recently sworn in as U.S. District Judge, Middle District,
Alabama.
Several days before Christmas, 2002, I traveled to Montgomery,
Alabama and met with Retirement Systems of Alabama (RSA)
lawyers in reference to an investigator who had been paid by the prior
administration [Fuller] the highest pay in the state, i.e., $80,000 plus.
In addition to the investigator's salary, the investigator was also paid
an additional compensation by the prior administration of $70,770.
The investigator was trying to retire at a salary of $152,000 plus ....
One of RSA's two lawyers told me in the presence of RSA's other
top lawyer that Mark Fuller testified under oath before the RSA
Board in support of the investigator $152,000 salary and that not
one single Board member believed Mark Fuller was not lying.
I state under penalty of perjury that the foregoing is true and correct.
Date: 2/21103 Signed: Gary McAliley
75. The following Monday, February 24, 2003, I met with two RSA
officials in Montgomery, Alabama. To protect any government
investigation, I will not disclose here the identities of these two RSA
21
officials. In the future, however, I will do so if and when circumstances
reqUIre.
76. The first RSA official whom I met pulled no punches. This official
said that Fuller and DeVane had attempted to defraud the Retirement
System of Alabama. This official also showed me documentary evidence
that strongly suggests Judge Fuller knowingly lied to the RSA appeal
board when Judge Fuller testified at DeVane's appeal hearing on
December 4, 2002.
77. This RSA official showed me a letter Fuller had written the RSA,
dated January 2, 2002. See Exhibit 20 attached. In this letter, Fuller
specifically states that the additional compensation Fuller gave De Vane in
2000 (i.e., the additional $70,000+), was for additional duties that DA
Fuller had requested of DeVane "beginning January 1, 1997." Fuller's
letter also states that the DA's office did not have the money to pay DeVane
for this additional work until 2000.
78. However, when Judge Fuller testified before the RSA appeal board on
December 4, 2002, Fuller directly contradicted his prior letter of January 2,
2002. Judge Fuller testified that the extra $70,000+ he gave DeVane was for
additional duties DeVane performed in the year 2000 only.
79. Fuller's letter and his later testimony are in direct conflict.
Fuller's letter of January 2, 2002 plainly states that the extra money paid
De Vane in 2000 was for additional duties Fuller had requested that De V ane
perform "beginning in January 1, 1997." However, in his testimony, Judge
Fuller said that he assigned additional duties to DeVane to perform in the
year 2000 only. This is a huge inconsistency in Fuller's stories.
80. There's another huge hole in Fuller's conflicting stories. When Fuller
testified before the RSA appeal board, he testified that he and De Vane
specifically decided in 1999 that DeVane would perform these additional
duties in 2000. However, in Fuller's letter of January 2, 2002, Fuller was
very specific when he said that the additional duties were assigned to
DeVane "beginning in January 1, 1997." Which story is true?
81. Fuller claims that his conflicting stories are all part of a
"misunderstanding." This is simply another one of Fuller's lies. A common
defense for those caught lying is to say that their inconsistent statements are
22
simply part of a "misunderstanding." However, under the circumstances
here, there can be no misunderstanding. Fuller was very specific in his letter
of January 2, 2002, that the additional duties were assigned "beginning in
January 1, 1997." However, when Fuller testified before the RSA on
December 4, 2002, he specifically said that the additional duties were
assigned at the beginning of the fiscal year 2000 (1999) to be perfonned in
the year 2000 only. There's nothing to misunderstand here. Fuller is lying;
it's simply a matter of figuring out the extent to which Fuller is lying.
82. If Fuller cannot keep his stories straight, then perhaps these additional
duties were never actually assigned, or perfonned, and the additional
$70,000+ that Fuller gave DeVane in 2000 was simply a part of their scheme
to spike DeVane's salary in an attempt to then defraud the RSA out of an
additional $330,000 in pension benefits.
83. The first RSA official also explained that the RSA got "heartburn"
with Fuller's testimony that the extra $70,000+ was for work in 2000 only,
because it was obvious Judge Fuller had completely changed his story
and tailored his testimony to the calculation method that would best
serve DeVane. That is, if the entire $152,014 was paid for work in 2000
only, it would have substantially increased DeVane's average salary -
causing DeVane's retirement benefits to increase another $1,000 a month for
an estimated 330 months, or $330,000. However, if Fuller had stayed with
the story he told in his letter to the RSA dated January 2, 2002, his buddy
DeVane would have received less benefits because the RSA would have
averaged the $70,000+ over the years 1997, 1998, 1999 and 2000 -lowering
DeVane's final average salary for purposes of calculating benefits.
84. Simply stated, when Judge Fuller testified before the RSA appeal
board, he completely changed his story to fit the calculation method that
would maximize DeVane's retirement benefits.
85. The first RSA official offered another disturbing insight. He
explained that after Fuller was nominated to the federal bench (August
2002), DeVane delayed his appeal hearing. Then suddenly, when Fuller was
confirmed by the u.S. Senate and received his commission on November 26,
2002, Fuller and De Vane were ready for an appeal hearing.
86. If so, this would suggest Fuller and De Vane delayed the appeal
hearing to keep their scheme under the radar while Fuller was being
23
investigated by the United States Senate and the F.B.I. for a federal
judgeship. This would constitute fraud on the U.S. Senate and an
obstruction of the background investigation of a judicial nominee.
87. This would also explain the highly coincidental timing of two material
events. Fuller did not officially become a federal judge until November 26,
2002. Then, only days later (December 4, 2002), DeVane's appeal hearing
was held and new federal judge Fuller appeared and testified.
88. The advantage to Fuller from this coincidental timing is obvious. By
holding back on the appeal, Fuller and De V ane were able to lay low and
avoid drawing attention or negative publicity to the obvious fact that Fuller
had spiked DeVane's salary in a scheme to get DeVane an extra $330,000 in
RSA pension benefits.
89. Second, by waiting to press DeVane's appeal until after Fuller became
a new federal judge, Fuller and De Vane obviously intended to use the power
and prestige of Fuller's new position as a federal judge to steamroll the good
people at the RSA and cheat the Alabama public employees' retirement fund
out of an extra $330,000. Indeed, the tenor of the Montgomery Advertiser's
editorial of Dec. 5, 2002 is a congratulatory note that the RSA did not cower
to this new federal judge or allow this federal judge and his buddy to "raid"
the RSA pension fund.
90. The second RSA official I met in Montgomery was nervous
discussing Mr. Fuller. This second RSA official explained that the RSA had
lost a lot of money in the Enron scandal and that the RSA had filed a huge
lawsuit against Enron officials - and that the RSA's case was pending in
federal court before Judge Fuller.
91. This was shocking news. The first RSA official had told me,
pointblank, that Fuller and DeVane had tried to defraud the RSA. Now, the
second RSA official was telling me that the RSA had a huge case against
Enron pending in front of the very federal judge who had recently lied to and
attempted to defraud the RSA.
92. I then realized why the RSA had not filed a fonnal complaint against
Fuller for lying and attempting to defraud the RSA. Fuller is now a
powerful federal judge and the RSA is routinely involved in matters before
the courts. Understandably, the good people at the RSA do not want to
24
suffer retaliation for filing a formal complaint against Fuller - who is a
powerful federal judge. It is similar to stories that we've all heard about
wrongdoers who wield substantial power over their victims. As a new
federal judge, Fuller is now the 800-pound guerrilla and the good people at
the RSA are afraid of the enormous power Fuller now wields over them.
93. The second RSA official did confIrm that the RSA did not believe
Judge Fuller's testimony. During our meeting, I asked this second RSA
official: If the RSA appeal board had believed Fuller's testimony, would the
RSA have approved DeVane's request for additional benefits? The second
RSA official answered: "Probably." This official did not, however, dispute
the predicate to my question - that the RSA did not believe Fuller's
testimony.
94. My meetings with two RSA officials corroborated Mr. McAliley's
affidavit that an RSA official had told McAliley that RSA board members
believed that Judge Fuller had lied.
95. Finally, I later learned that the RSA requested that Judge Fuller recuse
himself from the RSA's lawsuit against Enron (hereinafter "RSA-Enron"
case). As I understand it, Judge Fuller refused to recuse himself from the
RSA-Enron case. This is a very troubling situation.
96. The evidence strongly suggests that Fuller and De V ane committed
serious crimes against the RSA. By refusing to recuse himself from the
RSA's case against Enroll, Judge Fuller is positioned to taint the RSA
and any RSA official who may testify against Fuller should Fuller ever
be prosecuted for his crimes against the RSA. In the RSA-Enron case,
Judge Fuller will rule against the RSA on some important issue. Then, if
Fuller is ever criminally prosecuted for his crimes against the RSA, Fuller
can claim that any RSA official who testifies against Fuller is doing so in
retaliation for a court ruling Fuller made against the RSA. In the 1980s and
early 1990s, all five of the corrupt federal judges prosecuted by the Reagan-
Bush Department of Justice claimed that they were the victims of "vindictive
prosecutions." In a similar way, by failing to recuse himself in the RSA-
Enron case, Judge Fuller is now positioned so he can later claim that the
RSA is vindictive, and out to get him, for a court ruling Judge Fuller made
against the RSA in the Enron case. As incredible and sinister as this may
seem, this is precisely why Judge Fuller refused to recuse himself from the
RSA-Enron case. Judge Fuller stayed in the RSA-Enron case (when clearly,
25
he should have recused himself) for the purpose of tainting RSA witnesses
who may someday be called to testify against him.
Other Information Acquired
During My Alabama Trip
97. I spoke with other people during my February 2003 trip to Alabama.
A common report I heard was that when Mark Fuller was District Attorney
for the 12th Judicial Circuit, he was frequently gone or out of the state. I also
heard Fuller was involved with some sort of aviation company with possible
military contracts. Sources also said that while district attorney, Fuller spent
a substantial amount of time in Colorado. I also heard that District Attorney
Fuller was rarely seen in court, although he was the district attorney in two
counties. A consistent theme to these reports: Fuller was an absentee district
attorney.
98. I asked the United States Senate to send me a copy of the
questionnaire Mr. Fuller completed as part of the Senate's confirmation
process. A copy is attached as Exhibit 21. On page 2 of this questionnaire,
Mr. Fuller states that from 1989 to the present (2002), Fuller held the
positions of "Chairman and CEO" (chief executive officer) of Doss
Aviation, Inc., headquartered at 3320 W. Carefree Circle, Colorado Springs,
Colorado 80917.
99. On page 23 of this questionnaire, Mr. Fuller states that Doss Aviation,
Inc. employs 300 people.
100. In other words, while Fuller was (supposedly) serving as a fulltime
district attorney for two Alabama counties between 1997-2002, he appears to
have also been serving as chairman and chief executive officer for a 300-
employee company headquartered in Colorado. This seems remarkable.
From 1997 to 2002, Mr. Fuller was a fulltime government employee serving
as district attorney for two Alabama counties.
101. Note that on page 3 of the "Financial Disclosure Report For
Nominees" attached to the completed questionnaire, Mr. Fuller states that
for the year 2000, he received from Doss A viation, Inc., the sum of
$58,972.56 in non-investment income. This suggests Fuller was doing
26
substantial work for Doss while supposedly servmg as a fulltime district
attorney in Alabama.
102. If Fuller was frequently gone, or in Colorado, instead of performing
his fulltime duties as an Alabama district attorney, this could explain why
Fuller paid questionable compensation and questionable bonuses to key DA
office employees. These employees may have covered for Fuller while he
was frequently out of the DA's office. In u.s. v. Lopez, 222 F.3d 428 (7th
Cir. 2000), a defendant was convicted of conspiracy to embezzle and
misapply credit union funds and conspiring to execute a scheme to defraud;
the scheme also involved paying certain employee what were called
"bonuses" that were in fact payoffs for staying quiet and covering up.
103. Any investigation of Fuller should include obtaining travel records
that would show how frequently Fuller was absent from Alabama while
supposedly serving as a fulltime district attorney. If so, Fuller may have also
deprived the citizens and taxpayers of Pike County and Coffee County of
their right to honest government services - a possible federal crime. See 18
U.S.C. § 1346. I should also note that ifDA Fuller had not been so busy in
2000 apparently earning nearly $60,000 in extra money from Doss Aviation,
then DA Fuller might have had no reason to use an extra $70,000+ in
Alabama public funds to pay De Vane for working on some office manual
that DA Fuller could have worked on himself. Apparently DA Fuller was
too busy in 2000 (making an extra nearly $60,000 from Doss), giving Fuller
the pretext to use $70,000+ in public funds to pay DeVane in 2000 for work
that DA Fuller could have done himself. Tills needs to be investigated.
104. Any investigation of Fuller should also determine whether DeVane,
who made his living investigating people and their crimes, had anything on
Fuller. If so, this would explain why Fuller did so much to put so much
public money into DeVane's pockets.
105. Also, any investigation of Fuller and his spiking of DeVane's salary
should focus on the apparent fact that the DA's office under Fuller was
having extreme fmancial difficulties during the same time Fuller handed
DeVane an extra $70,000+ in 2000 for supposed work on some silly office
manual. If Fuller's DA office was having financial difficulties, this
would suggest that Fuller and DeVane were handling the DA office
money for their own personal benefit, rather than for the benefit of the
citizens of Pike and Coffee counties. This, in turn, would support the
27
assertion that Fuller and DeVane grabbed the $70,000+ as a necessary part
of their scheme to defraud the RSA out of an additional $330,000 in pension
benefits - while the DA's office was struggling fmancially.
106. On another matter, while I was in Alabama in February 2003, I
learned that Judge Fuller had a spy in DA McAliley's office who reported to
Judge. Fuller in Montgomery that I was in Alabama investigating Fuller and
attempting to schedule a meeting with Mr. McAliley. Judge Fuller's spy
attempted to prevent me from meeting with Mr. McAliley.
107. Judge Fuller has yet to disclose to the parties in the B.A.S.S. case
that he is aware that I had been in Alabama investigating him. A judge
has a duty to disclose any fact or information that might suggest judicial
bias or hostility against any attorney or party. Judge Fuller has not
complied with this duty.
108. Finally, I know of other evidence and information that suggests
wrongdoing by Judge Fuller. To protect any investigation into these matters,
I will not discuss the details here.
Summary Analysis and Suggestions
109. Based on the evidence discussed above, it is my considered legal
opinion that a jury could fmd that Mr. Fuller lied to the RSA in violation of
Code of Ala. § 36-27-27. From the evidence, a jury could also fmd Mr.
Fuller guilty of criminal conspiracy (with DeVane) to defraud the RSA of
$330,000 and criminal attempt to defraud the RSA of $330,000. See, e.g. ,
Code of Alabama § 13A-4-3 (criminal conspiracy); Code of Alabama §
13A-4-2 (criminal attempt); Code of Alabama § 13A-8-2(2) (criminal theft
of property by deception).
110. Because Mr. Fuller also used the U.S. mails in furtherance of a
scheme to defraud the Alabama public employees' retirement fund, it is my
considered legal opinion that Fuller also may have violated the federal mail
fraud statute, 18 U.S.C. § 1341. Compare United States v. Tierney, 760 F.2d
382 (1 sl Cir. 1985) (defendant convicted of mail fraud in furtherance of a
scheme to defraud the StatelBoston Retirement System of pension benefits).
I should also note that the federal mail fraud statute makes it a crime to use
28
the U.S. mails in furtherance of an attempt to commit fraud. This means
Fuller could be convicted for mail fraud - even though he and De Vane did
not succeed in their scheme to defraud the Alabama public employees'
retirement fund.
Ill. Also troubling is that after Fuller became a federal judge, it appears
he used the power and prestige of his new federal office in furtherance of his
scheme to defraud the RSA. Federal Judge Fuller testified at the appeal
hearing on December 4, 2002, and all indications are that this federal judge
lied. If the RSA appeal board believed that Fuller lied, then perhaps a jury
in a criminal prosecution would too.
112. Among other things, it appears Judge Fuller has violated Canons 1
and 2 of the Model Code of Judicial Conduct (1990). Canon 1 states that
"an independent and honorable judiciary is indispensable to justice in our
society." Canon 2B states that a judge "shall not lend the prestige of judicial
office to advance the private interests of the judge or others." Regrettably,
all evidence points to Judge Fuller using the power and prestige of his
federal office to further a scheme to defraud the RSA pension fund.
113. Furthermore, if a jury found that Fuller committed any of the crimes
identified in ~ 109 and ~ 110 above, a jury could also fmd that in 2000,
Fuller simply gave DeVane the extra $70,000+ without DeVane actually
working all those nights and weekends supposedly completing office
manuals. If Fuller cannot keep his story straight as to what years DeVane
actually performed the extra work, then why should a jury believe that all of
this supposed extra work was actually performed?
114. If a jury fmds that DeVane did not actually perform all this extra
work, and Fuller knew it, then the extra $70,000+ that Fuller handed
DeVane in 2000 was embezzled and stolen government funds. If a
government official hands a buddy $70,000 for work that was not done, then
this money is simply embezzled and stolen government funds. Cf Us. v.
Gunby, 112 F.3d 1493 (11 th Cir. 1997) (state judge embezzled filing fees
from the county court; state judge convicted of mail fraud in connection with
embezzling filing fees from county court). Cf also u.s. v. Phillips, 219 F.3d
404 (5
th
Cir. 2000) (defendants convicted of several crimes for perpetrating
scheme of local corruption involving payment of salary kickbacks and
misuse of state government funds).
29
115. In 1999, DA Fuller submitted a formal request to the Attorney
General of Alabama asking for a legal opinion on the maximum fees the
district attorney's office could charge for bad checks. I have also heard that
the $70,000+ Fuller gave De Vane in 2000 may have come from the DA
office's bad check fund.
116. If so, this is what could have happened. Fuller and DeVane were
looking for more money to bring into the DA's office. Eventually, they
succeeded in acquiring more money. DeVane was planning to retire. So he
and Fuller cooked up a scheme to substantially increase DeVane's salary
shortly before retirement - so De Vane could get substantially more
retirement benefits ($330,000 more). So in 2000, Fuller agreed to give
DeVane an additional $70,000+ because the public money was available and
the two men called this money "compensation" for additional services. And
their scheme to defraud the RSA began.
117. If this is what happened (and it sure looks that way), then a jury could
find that District Attorney Fuller misappropriated the $70,000+ that was
given to De Vane so that Fuller and DeVane could then carry out their
scheme to defraud the RSA of $330,000 more. After all, DA Fuller could
not spike DeVane's salary without getting the money to spike from
somewhere. Keep in mind, it strongly appears Fuller lied to the RSA and
has told two conflicting stories as to what years De Vane supposedly did
additional work for this $70,000+.
118. Based on the evidence, it appears DA Fuller may have
misappropriated more than $70,000 in public funds in order that Fuller and
DeVane could then attempt to defraud the Alabama public employees'
retirement fund out of another $330,000. If so, this would be a classic
white-collar crime. Imagine: a public official steals $70,000+ in public
funds so he can then help his buddy defraud a state public employees'
pension fund out of another $330,000 in benefits.
119. On another matter, it is deeply disturbing that Judge Fuller did not
recuse himself from RSA' s lawsuit against Enron. Substantial evidence
plainly suggests the RSA is a victim of crimes attempted and committed
by Fuller; and certain RSA officials are witnesses to these crimes. I have
reason to believe there are RSA officials who would speak frankly against
Mr. Fuller if they were not so afraid ofhim in his capacity as a federal judge.
30
120. Also recently, I learned that DeVane has filed a lawsuit challenging
the RSA's decision rejecting his spiked salary and request for additional
retirement benefits. DeVane's lawsuit is a classic smoke screen -
designed to camouflage the crimes committed by Fuller and DeVane in
attempting to defraud the RSA.
121. Fuller and DeVane underestimated the RSA's commitment to
preventing fraud against the Alabama public employees' pension fund.
Fuller and De Vane also underestimated the courage of the Alabama media in
frankly reporting and condemning this blatant scheme to spike DeVane's
salary and "raid" the RSA pension fund. After the RSA appeal board
rejected Fuller's testimony on December 4, 2002, it became obvious Fuller
had lied to the RSA.
122. Afterwards, Fuller and DeVane (and perhaps an accomplice smarter
than they are) realized that the best way to cover their tracks would be to
make it appear that they really believed De Vane was entitled to the extra
$330,000 in retirement benefits. So DeVane (with the help of an attorney
close to Fuller) filed a lawsuit against the RSA, challenging the RSA' s
denial of DeVane's request for additional benefits based on DeVane's
spiked salary. Fuller and DeVane are hoping this lawsuit will make their
scheme to defraud look like an honest effort - even if De V ane loses the
lawsuit.
123. De Vane's lawsuit would also tend to keep the RSA quiet, because
parties in litigation tend not to speak publicly about a pending case. This, in
turn, would also silence RSA officials - which is exactly what Fuller and
DeVane want from the RSA: silence. DeVane's lawsuit would also delay or
prevent the RSA' s filing of any criminal complaint against Fuller and
De Vane, or any request by the RSA for a criminal investigation.
124. Also, by filing this lawsuit, DeVane and Fuller hope to obtain some
sort of absolution (or cover) from the judge. DeVane's lawsuit should be
watched closely. However, at the end of the day, the judge in DeVane's
lawsuit will not be able to influence or affect the outcome of any state or
federal criminal prosecution. Only a jury in a criminal case can decide
whether Fuller and De Vane committed crimes.
31
125. Finally, the timing of DeVane's lawsuit against the RSA is unusual.
Ordinarily, an appeal of an administrative or judicial ruling is made shortly
after the adverse decision. The RSA made its [mal adverse decision against
De Vane on December 4, 2002. It is my understanding De Vane waited
another six months before filing his lawsuit appealing the RSA. This
suggests that De Vane and Fuller were in a holding pattern during those six
month, desperately trying to assess the situation and determine if they should
go on the offensive to delay or impede any criminal investigation or
prosecution. This is because: since at least February 2003, Fuller has known
he was being investigated by me and perhaps others.
126. On another matter, I respectfully submit that the United State Senate
should investigate whether Fuller and De V ane purposely delayed the RSA
appeal hearing in order to impede the Senate's character and background
investigation of a judicial nominee. If so, the appeal delay by DeVane and
Fuller worked a fraud on the United States Senate and obstructed the
Senate's attempt to thoroughly investigate a judicial nominee. It is troubling
to think that while Fuller was being investigated for a federal judgeship, he
and De Vane kept their ongoing scheme to defraud the RSA under the
Senate's radar - only to return to their scheme and attempt to complete it
after Fuller was cleared by the Senate and confirmed to be a federal judge.
The Prosecution and RemQval of Bad Judges
127. Article In, Section 1 of the Constitution of the United States provides
that judges "shall hold their Offices during good Behaviour." In other
words, the Constitution calls for removal of any judge who commits any
crime - felony or misdemeanor.
128. In the 1980s and early 1990s, the U.S. Department of Justice, under
President Reagan and Vice-President Bush, fIled criminal charges against
five corrupt federal judges, obtaining four convictions. Eventually, all fIve
of those judges resigned or were impeached. T. Peterson, The Role of the
Executive Branch in the Discipline and Removal of Federal Judges, 1993
U.Ill.L.Rev. 809. Federal Judge Walter L. Nixon, Jr., of Mississippi, was
convicted and impeached for lying. Obviously, if Judge Fuller lied to the
RSA or committed any other crimes, he should be convicted of his crimes
and impeached and removed from office.
32
129. Courts have universally recognized that the only proper remedy for a
judge who has lied or engaged in deception is to remove the judge from
office. See, e.g., In re Inquiry Concerning a Judge No. 97-74, 730 So.2d
269 (Fla. 1999) (Supreme Court of Florida declaring that a judge who lied
and was dishonest should be removed because such misconduct "is
fundamentally inconsistent with the responsibilities of judicial office"; "the
judicial system can only function if the public is able to place its trust in
judicial officers"); Matter of Collazo, 691 N .E.2d 1 021 (N.Y. 1998) (Court
of Appeals of New York, the state's highest court, declaring that deception
by a judge is "antithetical to the role of a Judge who is sworn t6 uphold the
law and seek the truth").
130. In 1980, Congress enacted The Judicial Councils Reform and Judicial
Conduct and Disability Act ("the 1980 Act"). The debate over the 1980 Act
is "replete with testimony and comments concerning the growth of
corruption and abuse within the judiciary." Id. at 828.
131. U.S. lawmakers, including Senator Sessions, have insisted that
Congress strictly enforce the Constitution's Good Behaviour Clause and
impeach and remove any federal judge whose conduct does not meet
exacting standards. Senator Sessions wrote in a law review article that "for
the security of the rights of the people," judges hold their offices "as long
as they behave themselves." J. Sessions & A. Sigler, Judicial Independence:
Did The Clinton Impeachment Trial Erode The Principle, 29 Cumb.L.Rev.
489 (1998-99). (Emphasis added.) Senator Sessions has also said that
because federal judges have lifetime tenure, they must behave themselves
according to "a most exacting standard of public and private conduct." Id. at
519.
132. The evidence strongly suggests that Judge Fuller has failed Senator
Session's exacting standard of good conduct.
133. More than once, the venerated Judge Frank Johnson said that judges
must be held accountable. Judge Frank M. Johnson, Jr., Judicial
Independence, 40 Ala. Law. 15, 17 (1979). America's democracy is based
on the fundamental principle that no person is above the law. Judges are
not, and cannot, be immune from criminal prosecution or "the citizenry
would justifiably lose respect for and confidence in a system of government
under which judges were apparently held to be above the processes of the
33
criminal law." T. P e t e r s o ~ The Role of the Executive Branch in the
Discipline and Removal of Federal Judges, 1993 U.Ill.L.Rev. 809, 833.
134. Everyday across America, people are prosecuted and convicted for all
types of government fraud: welfare fraud, Medicare and Medicaid fraud,
pension fraud, unemployment fraud, government-programs fraud and so on.
Many of these fraud cases involve persons who have knowingly made false
statements in connection with an attempt to obtain fmancial benefits. In the
federal court in Montgomery, a man was prosecuted and convicted for
making false statements in connection with an attempt to obtain $870 in
unemployment benefits. U.S. v. Herring, 916 F.2d 1543 (11th Cir. 1990).
135. Our democracy is also based on the principle of equality under the
law. If we prosecute and convict people who lie for $870 in benefits, then
we must also prosecute and convict people who lie to obtain $330,000 in
state retirement benefits - even if one of them is a federal judge.
136. Moreover, if Mr. Fuller did commit crimes, he did so using positions
of public trust - both as district attorney and federal judge. In both positions
of public trust, Mr. Fuller apparently thOUght he could lie to the RSA and,
because of his public positions of trust, the RSA would simply take him at
his word and hand his buddy DeVane an extra $330,000. Fortunately, Mr.
Fuller was wrong. The evidence plainly suggests Fuller attempted to abuse
his positions of trust in an attempt to defraud the Alabama public
employees' retirement fund out of a huge amount of money.
137. Similarly, the case of Thornton v. Evans, 692 F.2d 1064 (7th Cir.
1982), involved an abuse of trust to steal from the public. In that case, the
federal court of appeals observed a pattern "distressingly prevalent" in
America today: "the savings of working men and women are pilfered,
embezzled, parlayed, mismanaged and outright stolen by unscrupulous
persons occupying positions of trust and confidence." ld. (Emphasis
added.) This quote acc.urately describes Judge Fuller and his attempt to help
his buddy De Vane raid the Alabama public employees' retirement fund.
34
Recommendations
138. Federal and state authorities should investigate Judge Fuller to
determine whether he has committed any crimes. The House Judiciary
Committee should also investigate. If the facts warrant, or if an Alabama
jury convicts Fuller of any crime, Congress should impeach and remove
Fuller from federal office. The United States Senate Judiciary Committee
should also conduct an investigation to determine whether Fuller purposely
obstructed the background investigation of a judicial nominee. If he did,
Fuller also committed a fraud on the United States Senate and he should be
punished accordingly.
139. Also, if Fuller lied to the RSA on December 4, 2002, then he
committed crimes only 9 days after becoming a federal judge (i.e., peIjury;
overt act in furtherance of criminal conspiracy; and criminal attempt to
defraud the RSA). If so, this would be judicial infamy of historic
dimension: a federal judge who waited only 9 days after taking office
before committing crimes and violating laws he swore to uphold
140. Article ITI, Section 1 of the Constitution of the United States requires
removal of any judge who violates the Good Behaviour Clause. All
Americans who claim to honor, support, protect and defend the Constitution
must obey its commands - even when it means applying the Good
Behaviour Clause to remove from federal office a member of your own
political party. It was a good day in America when members of Congress
set aside all partisan politics and unanimously voted, 417-0, to impeach
Mississippi federal judge Walter L. Nixon, Jr. for lying to a grand jury.
And, as Senator Sessions has said, the very security of the American people
requires that we vigilantly enforce the Constitution's Good Behaviour
Clause as it applies to all federal judges.
141. Government officials should also keep in mind that if Fuller and
DeVane did commit crimes, there are real victims of these white-collar
crimes. The RSA has expended substantial funds trying to protect the RSA
and its pension fund from Fuller's and DeVane's scheme to defraud the
RSA. In ~ the public employees of Alabama are also victims because it
is their hard-earned savings, currently held by the RSA, that have been used
(and continue to be used in DeVane's civil suit) to protect the RSA and its
pension fund from Fuller's and De Vane's scheme to defraud.
35
142. Furthermore, if the $70,000+ that Fuller gave DeVane in 2000 was
not actually earned by De Vane supposedly working all those nights and
weekends, then victims of that stolen money (public funds) include the
children and custodial parents in Pike and Coffee counties who suffered
because less public money was available to the DA' s office to enforce and
collect child support. Several months ago, I read on the 1 ih Judicial
Circuit's DA website of an e-mail complaint from a citizen whose daughter
suffered delay after delay in receiving help from the DA's child support
enforcement unit when Fuller was DA. Also, in any investigation of Fuller,
it should be detennined whether the $70,000+ that Fuller gave DeVane was
public money tied to any specific spending obligation - such as child-
support enforcement.
Final Matters
143. Because of my investigation and certain conversations I have had with
certain witnesses, I am a possible witness in any investigation or prosecution '
of Mr. Fuller and Mr. De Vane. Because evidence suggests that federal mail
fraud statutes may have also been violated, I could be a witness in federal
proceedings. Consequently, please be advised that anyone who attempts to
harass or retaliate against me could be subject to federal criminal sanctions,
including 18 U.S.C. § 1512(b). State criminal laws may also apply.
144. In the B.A.S.S. case, I have been harassed and my life threatened
twice by Ray Scott. One of Mr. Scott's attorneys asked a friend of mine
where my parents and sister lived.
145. I will no longer tolerate any harassment, intimidation or retaliation -
including veiled threats directed to me or my family. I will use the full force
of the law to protect and defend myself and my family against anyone who
harasses or retaliates against me or my family for doing my duty as an
attorney and officer of the court.
146. Also, be advised that any person or attorney who harasses me, or
retaliates against me, under pretense of civil process or suit in Alabama will
be sued immediately in a Missouri court for tortious abuse of process. This
warning should be heeded by Mr. Fuller's attorneys and any accomplices.
36
Among other things, I will rely upon the truth as an absolute defense. I will
present to a jury compelling evidence and witnesses to show reasonable
belief that Fuller and De Vane committed crimes. I also remind Fuller,
De Vane and any of their accomplices of the legal force of Judge McAliley's
affidavit recounting what an RSA attorney told Judge McAliley. And, I
remind Fuller and his accomplices that I previously proved that a Missouri
judge lied in judicial proceedings and attempted to commit fraud on a
Missouri court.
147. As an attorney and officer of the court, I have merely performed my
duty in preparing and submitting this affidavit to the appropriate
governmental authorities. No reasonable person can say that there is not
evidence that points to criminal misconduct by Messrs. Fuller and DeVane.
As one RSA official flatly told me, Fuller and DeVane tried to defraud
the RSA. And, Judge McAliley's affidavit confirms that the RSA board of
control concluded that Judge Fuller lied. See Exhibit 20 attached.
148. In 22 years as an attorney, several judges have complimented me on
my work. In my career, only once has a judge criticized me. When the
B.A.S.S. case was pending in Kansas, Judge Belot chastised Murray's
attorneys, including me, for suggesting that if the B.A.S.S. case was
transferred to Alabama, the B.A.S.S. case might be decided by politics and
influence and not on the facts and the law.
149. After the B.A.S.S. case was sent to Alabama, Judge DeMent ignored
30 years of public documents and universal rules of law by attempting to
rule, in 1999, that B.A.S.S. was not an association - a ruling later set aside
by the Eleventh Circuit when Judge DeMent was disqualified.
150. After Judge DeMent issued his plainly erroneous ruling, Kansas
federal judge Belot (who presided over the B.A.S.S. case for 3 years and
knew the case well) reportedly said that Judge DeMent's ruling was a "damn
shame" - or words to that affect.
151. Recently, another attorney told me that he also remembers hearing
that Judge Belot was critical of DeMent's ruling. This attorney says he
specifically recalls thinking Judge Belot was being "hypocritical" for
criticizing Judge DeMent's ruling when Judge Belot had previously
chastised Murray's attorneys for suggesting Alabama might be an unfair
venue for the B.A.S.S. case.
37
152. Ironically, as it now turns out, Judge Belot criticized me and other
Murray attorneys for accurately warning that it would be difficult, given the
politics and connections of the B.A.S.S. defendants, to obtain justice for the
B.A.S.S. case in Alabama. And now, the B.A.S.S. case faces yet another
obstacle to justice in Alabama: a new federal judge, Mark Fuller, who
plainly appears to have committed crimes, and, who plainly appears corrupt
and subject to improper influence.
153. For the record, Mr. Randall E. Fisher, lead counsel of record for
plaintiff Murray in the B.A.S.S. case, has not participated in my
investigation or preparation of this affidavit. I have infonned Mr. Fisher that
I had uncovered evidence of wrongdoing by Mr. Fuller. Understandably,
Mr. Fisher's concern is that Judge Fuller or perhaps others close to Fuller
will punish plaintiff Murray and his lawyers if I submitted this affidavit.
There is also concern that Judge Albritton, although a brilliant jurist, IS
reportedly close to Mr. Fuller.
154. In any event, I told Mr. Fisher that I had no choice but to do my duty
and prepare and submit this affidavit. I take full responsibility for this
affidavit and am saddened that Mr. Fuller's obvious disrespect for the law
and for other people - including the people of Pike and Coffee counties and
the public employees of Alabama - has required that I prepare and submit
this affidavit.
155. On July 24, 2003, as I was working to ftnish this affidavit, I learned
the RSA has published a front-page editorial in the August 2003 issue of the
RSA membership's periodical, ADVISOR. See Exhibit 22 attached. This
front-page editorial is entitled" A Federal Judge & Integrity, Part 1." It is
about Judge Fuller and begins with a quote from Mr. Mel Cooper, the first
director of the Alabama Ethics Commission, who said: "If it looks bad and
you do not want it on the front pages then do not do it!" The article then
discusses Judge Fuller and an adverse ruling Judge Fuller recently made
against the RSA in the RSA-Enron case. The last paragraph of the editorial
states:
Next month, we will discuss how Judge Fuller appeared before the
RSA Board of Control last December and failed to convince the ERS
Board of Control to give his friend a $330,000 boost in retirement
incomes, and how his "pay-back" affects every Alabamian.
38
156. This editorial is a positive sign that RSA officials are finding the
courage to speak candidly about Judge Fuller and his blatant scheme to
defraud the RSA. However, Fuller might now claim that anything bad the
RSA says about him is because of a court ruling Judge Fuller made against
the RSA in the Enron case. Fuller and his strategists, have been very clever
in their plan to taint RSA witnesses. However, the evidence of Fuller's
crimes against the RSA is so compelling that Fuller's attempt to taint RSA
witnesses will fail.
157. This affidavit is submitted pursuant to the First Amendment to the
Constitution of the United States. It is not being submitted pursuant to the
1980 Act, because that law limits judicial councils to discipline and not
impeachment and removal of federal judges - which are the exclusive
province of the U.S. House and Senate, respectively.
158. One of the frnest federal judges in U.S. history was Alabama's Judge
Frank Johnson. More than once, Judge Johnson said that judges are not
above the law and must be held accountable. If Judge Johnson were alive
today, he would say that if Judge Fuller lied to the RSA or violated any
criminal laws, then Fuller must be removed from federal office. Indeed, if
Fuller lied or has violated any criminal laws, then Article III, Section 1 of
the Constitution of the United States requires Fuller's removal from federal
office.
I STATE UNDER PENALTY OF PERJURY THAT TO THE BEST OF
MY KNOWLEDGE AND BELIEF, THE FOREGOING IS TRUE AND
CORRECT. 28 U.S.C. § 1746.
Respectfully submitted,
PAUL BENTON WEEKS ill
DATE: 07/25/03
39
EXHIBIT 1
EXHIBIT 1
ATTACHMENT TO:
SELF-EXECUTING AFFIDAVIT OF
PAUL BENTON WEEKS III
[28 U.S.C. § 1746]
.....) -.':'"
7 t . I '·
gpOD MORNING
Si:{,tUrday .
.. 1998
"ltTO' .... •. 'ft} ',"' -,a" >n' " ···s"""e·'s· ·R· ··e·a o··f ' ira' u' · ·d· ·
:: .; ,: .' ',' - .. ·' ... , ' ', : ' ' . ' , .
, . ". '. .. ' ",; ,':. .: , . :t,,', '. ' , ' , ' . I
·Th.e Moore's farm time I feel free in 11
to reclaim a debt fr6rri\ait unreso Ived 1987 . Rea
'. . . J
' . B.)' Rob.erit-Keyes ' .' . '. ,sale of Moore's· 476-acre fann near sued Nancy and
:; N,ews';Leader > • . ; .• , . '. 'r:;:;, Taneyville, court records show. - . . . Clovis 'Moore,
. . ' . " ' . , . ..... . ' .' " .' . .. j. " '/!'f:;t.' j 1" .. . . ' .. ... .,'. , . . .
. ,. " ... ::, .But the sale, scheduled f?r..F'r:iday, . claiming he .
'; l$ : on ·h.old. after a . SpecIal Judge . them money · as
. , app,ointedthis week set aside part ora proposed.
accused'oftrymg todefr:aud .' . ' . Rea land ventUre. The
• in a lawsttithe .filed llyearsago., . ' \ ' Moore/ 57, and her Wichita, Kan., ' Moores , say the
. .atto
I11
eY,Paul Weeks, saythejudge's .. ' money was paid ---:
Reaihas "ju!lfha,rassed-me to noendiW· t jJlirtg signals a recognition that n6t1oaned to them - as part of the
m' trYing. are at · the very least farm pUrchase,
10anedtheTarieyGoUrtty,'( "questionable. " The deal fell through 'when Rea
'. . . .'. ' . . , woman aridiler decea.sed' liusba:na( "I just want to be free of him,'; and . two business partners were
Moore walks at ., her 416-acre farm near Tane,yYJII e. In March.. . •. '. i ! •. '; Moore said Friday ,of He,a: .. "I j,ust .
J_udgePeter Rea moved to force the sale of the farm to,settlea"debt. . ' . InMarch,Reamoved to '. ,want to be free, and today IS the fIrst . See REA, Page9A
...... , -, ' " " . .
; .... . . .
. > ,.
- ! Page edited b'/ Chris Wrinkle; call 836-1199 after 5 p.m.
Saturday. May 2. 1998 News-Leader 9A
...... : !
_. I i
FROM PAGE ONE
'il ,,,i Real Moore hopes system will work for het
-.- " . :::::1 Continued from lA .... . . . . '. .
I

I
i
i
I
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. . .. . .'. . ... .
. ";' j
I
unable to complete the $250.000 pur-
chase. court records indicate.
But in 1994. after the Moores
refused to procluce income·tax
ree6rds to help settle the dispute, Rea
received a provis ional judgment
from Pulaski County Associate
Judge Arthur B. Cohn. The Case had
been moved to that county on a
change of venue from Taney County.
Cohn's ruling did not resolve all
issues in the case. Still, on March 24.
Rea moved to collect on the claimed
debt. which had grown to more than
., $11.2.000 with interest and fees. He
i flied court papers to execute the sale
of Moore's fann.
,
I
I
..•• .!... i
Enter attorney Weeks. Last
month. he began-fIling volumes of
docilments on Moore's behalf, call-
ing for Pulaski County Presiding
Judge Douglas E. Long J r. to quash
the execution and s top the sale.
. Weeks' argument: Since there
was no final judgment in the suit,
there could be no execution against
the Moores' land.
Weeks called Rea's actions fraud-
ulent and accused the judge and his
attorneys of trying to harass and
intimidate Moore.
Their motive. said Weeks. is that
Moore had been among 14 state's wit·
nesses named in a Feb. 26 felony sex-
ual·abuse charge against Rea, who
has been suspended with pay since
being charged.
Moore believes she was named a
wi because of a sexual pass she
claims Rea made at her during her
divorce 30 years ago. At the time. Rea
was her attorney.
After Weeks' nrst flling las t
month. Rea's attorney. Richard L.
Schnake. withdrew the execution,
but left open the option to refLIe in
the future.
Responding to Weeks' petition to.
quash the execution. Schnake did
not back off his assertion that Rea's
,
. ,
j
1
j
. )
1
j

,
1
)
,
)
:J


Nancy M09re says there are a lot of memories. at the farm nestled in a valley near Taneyville. The has
be€n her home since 1974. Rea moved to force the sale of the farm, but a special judge set aside the action.
actions were legitimate.
"I am not persuaded that the cases
(Weeks) cites ... apply in a case such
as this, in which the unresolved
claims are wholly unrelated to those
already adjudicated .... '. Schnake
wrote Judge Long.
Still. the SpringrIelct attorney said
Friday that he and his fum plalmed to
withdraw as Rea' s counsel. He would
not say why. "That's between my
client and me."
Weeks believes Rea and his attor·
neys pulled their eX8cution only after
Weeks argued it was unlawful. "Rea
and his att orneys have s uddenl y
decided to turn around and nm for
the woods." Weeks said. in court fll-
ings.
Because of his pending withdraw-
a1,Schnake had little to say about the
case. But "any allegation that Mrs.
Moore or her lawyer a re making
ahout me or my integrity or my pro-
fession are not true," he said.
Earlier this week, umg assigned
the case to Maries County Associate
Judge John A. Clayton. who set aside
the execution on Thursday.
Pulaski County court officials had
no explanation for the change of
jurlge. Long could not be reached for
comment' Friday.
Clayton has s<:heduled a Tuesday
afternoon conference call to cons ider
Schnake' s motion to . withdraw as
Rea' s counsel.
Rea has been asked to participate
in that meeting. He could not be
reached for comment Friday .
Schnake's withdrawal -would not
be the flfSt in recent days for Rea.


William Dillow, who has repre- ':
sented Rea in his Taney Courity sexu-
al-abuse charges. said Friday he with-
drew las t week as Rea's attorney.
"There was a difference between :
myself and my client." he said, wiih- ';
out elaboration. ,-
Court records indicate Rea has not
yet retained a new attorney for tJ:Jose ';
charges.
Meanwhile. with the provisional
judgment still pending against her,
Nancy Moore is not in the clear with
Rea.
But recent development s have
released an ll-year burden and given
her hope that the system can work,
she said.
"The legal system has finally given
me a chance at justice. I don't think
I'm going to lose."
' . ,
EXHIBIT 2
EXIDBIT2
ATTACHMENT TO:
SELF-EXECUTING AFFIDAVIT OF
PAUL BENTON WEEKS III
[28 U.S.C. § 1746]
Tuesday
July 4,2000
11'1
wWw.OzarksNow.com
Rea commifted perjury, judg.e rules
Former Taney County judge could
face charges over lawsuit filed in 1987.
By Kelly Heierman
News· Leader
Former Taney County
Judge Peter Rea could face
criminal charges after a judge
found Monday that he rued a
false lawsuit and false atTi·
davits and committed perjury.
Maries County Associate
Circuit Judge John A, Clayton,
who was speciaUy appointed to
the Pluaskl County case, dis·
mIssed the suit and ordered Rea
to pay $5,000 by Aug, 1 for "fu·
ing false pleadings, false affi·
davits and giving perjured testi·
mony."
"This is very important
because you're talking about
someone who not orLly flled a
false lawsuit in Missouri court
, for 12'/' years, but a person who
was' a lawyer and was a Mis·
souri judge, and what he
a (tempted to
do was use the
Missouri judi·
cial system as
a weapon
against Nancy
Moore and her
de<:eased hus· R
band, Clovis, ea
in order to
beat them out of money that
belonged to them," said Paul
Benton Wp.(!ks, an attorney who
along with Milte Dunbar repre-
sented the Moores, defendants
in the suit.
Rea and his attorney, Don·
ald Ingrum, de<:lined to com·
ment,
Clayton's nuing in the civU
case will be sent to Pulaski
County Prosecittor Michael
Headrick, who will consider
whether to file criminal
charges against Rea. Headrick
was unavaUable Monday
because of the holiday.
"It's like 100 years has been
lifted off me,'" said Nancy
Moore of Taneyville. "Fo'r 12
years and seven months , I've
be-en fighting this - eVery
dime, every dollar I could dig
out. l've been working two jobs
my whole life,"
In December 1987, Rea suecl
the Moores, alleging that the
couple owed him $49,000 on a
loan he gave them. The Moores
contended that the $49,000 they
received from Rea was initial
payment in a land.purchase
venture in which Rea intended
to buy the Moores' 476-acre
farm for $250,000, Weeks saId.
When Rea did not come up'
with the total amount due in the
time the contract tillow'l(!, he
demanded his money back,
Weeks said. After the Moores
refused because of the condi·
tions of the contract, Rea filed
the suit, alleging the money was
not part of the contract, but
rather a loan given to the
Moores In an effort to help them
save their farm, Weeks said.
"Supposedly they (Rea and
two business partners)' were
buying all the farms on Beaver
Creek and doing a Christian
Coalition camp for
See REA, Page 68
Real Ruling ends 12-year fight
Continued from 1 B
underprivileged kids," Nancy Moore
said. "The interest rates were really
high, and we had five children. We
just decided to sell it." .
In 1994, Rea recei ved a provisional
. judgment from
ciate Circuit Judge Arthur B. Cohn
saying the Moores owed Rea the
money. In March 1998, Rea moved to
collect the award, then $112,000 after
interest and fees.
Weeks then argued that since
there was no fmal judgment in the
suit, Rea could not collect.
Weeks said Rea's motive' in
attempting to collect the award was
that Moore was one of 14 state wit·
nesses in a sexual misconduct case in
which Rea later pleaded guilty.
Moore said she was a witness
because of a sexual pass Rea alleged·
ly made toward her during her
divorce proceedings in 1969, during
which Rea was her attorney.
On Friday, ruling on a motion by
Weeks, Clayton determined that the
suit was fraudulent.
"Plaintiff (Rea) knew at the time
he fLIed his petition that the allega·
tions set forth ... were false," the fmd·
ings of the judgment state.
The fmdings further state that
"This court finds that plaintiffs
answers were false and were made
with the intent and purpose that this
court rely on .said statements."
The decision ended the uncertaIn
future of Moore's farm and a long '
court battle.
"Independence Day came a day
early," Moore said. "I can't even tell
you how I feel 7"" relieved, happy. I
don't know - just elated."
In November 1998, Rea pleaded
guilty to four counts of misdemeanor
sexual misconduct. In a plea agree-
ment, he received a one-year SllS-
pended sentence on each charge. He
also is serving two years' unsuper-
vised probation, resigned his posi·
tion as as associate circuit judge and
surrendered his license to practice
law in Mi ssouri. Also ordered to pay
$11,631 in court costs, Rea fLIed a pay·
ment plan earlier this year, Mark
Orr, special prosecutor in the case,
said.
In 1997, Rea appointed special
prosecutors to investigate Taney
County Clerk Ron Houseman and
Collector Dwain Basham regarding
money they received for collecting
property taxes for several cities in
the County. A judge later ruled that
Rea did not have aulliority to appoint
the speCial prosecutors. The charges
of .stealing were dismissed and
defamation suits were filed against
Rea.
Moore does not want Rea to spend
time in prison if criminal charges are
filed against him. She says since her
husband forgave Rea before his death
in 1995, she could forgive him, too.
''I'm just grateful that this is over
and he can never do this again to any
other family," Moore said. "I never
gave up because I knew I was right
and I knew someone had to stand up
to Pete and no one else in the county
ever seemed to follow through or fin·
ish. [ knew Pete Rea before all this
and I guess that 's where my compas-
sion comes from. I can't see anything
I would gain by holding malice in my
heart."
EXHIBIT 3
EXHIBIT 3
ATTACHMENT TO:
SELF-EXECUTING AFFIDAVIT OF
PAUL BENTON WEEKS III
[28 U.S.C. § 1746]
REA v. MOOIU':

Cite as 74 S.W.3d 795 (Mo.App. S.D. 2002)
of $1,648.00 monthly; thereafter, the
Def shall pay the . sum. of $1827.00 '. '
monthly; Def shall be allowed to claim
the children as dependents for tax pur-
poses provided that Def has fully paid
his child support for the tax year. The
remainder of the Courts finding and
judgment remain as stated. JDW
Thomas appeals. In his four points re-
lied on, three of those points attack the
award of child support described in the
November 9, 2000, docket entry. The re-
maining point relates to the award of "per-
manent maintenance."
Rule 74.01(a),zin part, reads:
"Judgment" as used in these rules
includes a decree and any order from
which an appeal lies. A judgment is
rendered when entered. A judgment is
entered when .a writing signed by the
judge and de.rwminated "judgment" or
"decree" is filed:
(Emphasis addep.) ": .
The' docket . . satisfy
two requiremen:ts for 'a judgmeAt:' in Rule
74.01(a). Fil'st,the entr-yis not signed by
the judge.
3
Second, the entry is not de-
nominated a "judgment."
The word "judgment" is used twice in
the docket entry,,Qut each time the word is
used only with .reference to the original
judgment of dissolution of marriage. Un-
der identical circumstances, in Hoy v. Hoy,
961 S.W.2d 128 (Mo.App.1998), this Couri
held that a docket entry using the word
"ju9gment" only with reference to an ear'li-
er judgment "does not satisfy the require-
ment of Rule 74.01(a) that the be
denominated a 'judgment.' " [d. at 129.
2. Rule references are to Missouri Court Rules
(2001)
3. In Kessillger v. Kessinger, 935 S.W.2d 347.
349 (Mo.App.1996), this Court held that a
judge's handwritten initials satisfy the reo
See also City of St . . Louis v. Hughes, 950
S.W.2d 850, 853 (Mo. banc 1997).
Because the docket entry is not signed
by the judge and is not denominated a
"judgment," it is not a judgment as re-
quired by Rule 74.01(a). Consequently,
this Court lacks appellate jurisdiction and
must dismiss the appeal. Ball v. Shan-
non, 964 S.W.2d 858, 859 (Mo.App.1998).
Appeal dismissed.
SHRUM, P.J., and BARNEY, C.J.,
concur.
Peter H. Plaintiff-Appellant,
. v.
Nancy Individually and . as
Personal of the Estate
of Clovis M01te, Defendant-Respon-
dent.
No. 23795.

Missouri Court of Appeals,
Southern District,
Division Two . .
Jan. 25, 2002.
Motion for Transfer and Denied
Feb. 13, 2002.
Landowner tiled motion for sanctions
against neighbor for making false allega-
tion in petition relating to lawsuit neighbor
quirement of Rule 74.0 I (a) that the judgment
be "signed by the judge" However. neither a
signature nor handwritten initials appear on
the docket entry in this case.
796 Mo. 74 SOUTH WESTERN REPORTER, 3d SERIES
had brought against landowner, for perju-
I'y, and for making false ' statements in
affidavit The Circuit Court, Pulaski Coun-
ty, John A. Clayton, J.,granted
Neighbor appealed. The Court of Appeals,
held that; (1) trial court was justified in
imposing sanctions under court's inhet-
ent powers, and (2) court could not consid-
er claim that trial court abused its discre-
tion in setting aside the previ?usly entered
judgment by failing to identify good cause
for the action.
Affirmed.
1. Appeal and Error e:>984(1)
Court of Appeals reviews imposition
of sanctions under an abuse of discretion
standard, since trial court may, at its dis-
cretion, impose sanctions when they are
justified, considering the conduct of the
parties and counsel.
2. Appeal and Error e:>946
Abuse of discretion OCCUF.$ when the
court's order is clearly against the logic of
the circumstances and is so arbitrary and
unreasonable as to shock the sense of jus-
tice and indicate a lack of careful consider-
ation.
3. Appeal and Error e:>768
Scope of ' the issue for detennination
on appeal is that framed in the point relied
on.
4. Error e:>758;3(1)
Court of Appeal's review is restricted
to issue raised in point relied on, even if
appellant raises issues outside the scope of
the point relied on. ,
5. Costs e:>2 '
Record did not support neighbor's
claim that trial court abused its discretion
by invoking its inherent powers to impose
sanctions for flling a frivolous lawsuit,
where neighbor was not accused of filing a
frivolous lawsuit, there was no rmding that
neighbor had filed a frivolous lawsuit,'and
trial court imposed sanctions on neighbor
based on the false pleadings, false affifla-
vits, perjured testimony and fraud.
6. Costs e:>2
; " .
. '
Safe, harbor provision, which prohiQits
filing of motion for sanctions with trial
court before 30-days after serving motion
on the other party, is stringently
when sanctions are sought under rule goy,.,
erning parties' documentary
" , , - '
tions to the court. V.A.M.R. 55.03(b, c),
<. ". J :
7. Costs e:>2
Intention of the 30-day safe harbor
provision is to allow the , party ag;1,inst
whom sanctions are sought an opportunity
to correct violations of rule governing Pilr-
ties' documentary representations ' to · the
court, conse(Ving judicial re-
sources if such corrective action is taken.
V.A.M.R. 55.03(b).
8. Costs e:>2
Even though 30-day safe harbor
vision of rule governing parties' documen-
tary representations to the court was not
followed, trial court was justified in
ing sanctions under the court's inher,ent
powers, based on fraud, false pleadings,
false affidavits ,and perjured testimony
i '
found by trial comt.
9. Costs e:>2
!' t{ :
Any' sanctions imposed under
court's inherent powers should be
to those situations in which it is reasonably
necessary to preserve the courts'
and protect it in the orderly
of its business.
10. Costs e:>2
Clear and convincing standard of
proof was the appropliate standard of
proof in suit seeking sanctions for fljing
REA v. MOORE Mo. 797
Cite as 74 S.W.3d 795 (Mo.App. S.D. 2002)
false pleadings, false affidavits and per-
jured testimony.
11. Appeal and Error <&=>775
AppeUate courts favor a disposition on
the meril"\ where possible, particularly
when such disposition of the merits is not
hampered by violation of appellate rule.
12. Appeal and Error <&=>422
Missowi courts are , lenient with re-
spect to the failure of notice of appeal to
specify the judgment or order appealed
from, so long as the iack of specificity does
not prejudice the other party.
13. Appeal and Error <&=>422
Leniency with respect to the failure of
notice of appeal to specify the judgment or
order appealed from does not apply when
the ' notice , of appeal only lists one judg-
ment or order" but the points on appeal
refer to more than one judgment or order.
14. Appeal and Error <&=>422
Court of Appeals review was confined
to the judgment specified in the notice of
appeal, and thus, could not consider claim
that trial coUrt abused its discretion in
setting aside the previously entered judg-
ment by failing to identify good cause for
the action, where notice of appeal men-
tioned only judgment for sanctions, and
not earlier order granting motion to set
aside judgment.
Peter H. Rea, pro se.
Paul Benton Weeks, III, Springfield, for
respondent.
J. Unless otherwise noted, all references to
rules are to Missouri Rules of Civil Procedure
(200 l),
Before GARRISON, P.J., PREWITT,
J., and RAHMEYER, J.
PER CURIAM.
Peter H. Rea ("Appellant") contends on
appeal that the trial court abused its dis-
cretion by (1) entering a judgment against
him for , sanctions based on an inherent
power to do so, and failing to follow the
statutory requirements of Rule 55.03,1 and
(2) setting aside a previously entered judg-
ment without specifying good cause ' for
doing so. ' For the reasons outlined below,
we afflrm the trial court's decisions.
This case stems from an action fIled by
Appellant in December 1987 in which he
claimed, in pertinent part" that he had
loaned or advanced $49,000 to Clovis and
Nancy Moore ("Respondent,,).2 Respon-
dent maintained that the amounlc; paid by
Appellant were not loans, but rather mon-
eypaid for an option to purchase property
from Respondent. An. amended petition
fIled by Appellant on March 28, 1991 con-
tained five counts, three of which related
to the $49,000. The fourth count waS a
claim for trespass to personal property,
and the fifth count involved another
$25,000 debt Respondent allegedly owed
Appell::mt. Respondent's answer included
a counterclaim seeking damages resulting
from Appellant allegedly failing to keep a
bull fenced within his own property.
On January 13, 1994, the trial judge
entered what he termed a final judgment,
finding for Appellant on the three counts
involving the $49,000, which the cowt de-
termined was "as a result of loans." The
judgment also noted that Appellant dis-
missed the fourth count without prejudice.
Respondent appealed to this Court and
that appeal was dismissed for lack of ap-
2. Clovis Moore passed away in \994 or 1995
and thereafter Nancy Moore was li sted in the
litigation as an individual and personal repre-
sentative of the es tate of Clovis Moore ,
798 Mo. 74 SOUTH WESTERN REPORTER, 3d SERIES
pellate jurisdiction based on our determi-
nation that the order was not a final judg-
ment, in that neither Appellant's futh
count nor Respondent's counterclaim had
been resolved and there had been nO find-
ing of "there is no just reason for delay" as
authorized by Rule · 74.01(b). See Rea v.
Moore, 891 S.W.2d 874, 875 (Mo.App. S.D.
1995).
On April 17, 1998, Respondent . filed a
letter and supporting documents with the
trial court that AppelJant had
committed fraud on the court. She al-
leged that documents from another case in
which Appellant was a party indicated the
money Appellant claimed was paid to Re-
as loans was in fact Ap-
pellant had paid Respondent toward the
purchase of 'Respondent's property.
Based on that information, . Respondent
filed a motion on June 1,1998 to set aside
the judgment preViously entered in the
A hearing was held on August 26,
1998, and on September 22, 1998, the trial
court entered an order in which Appel-
lant's remaining unresolved count and Re-
spondent's counterclaim were dismissed
for failure to prosecute: The order also
granted Respondent's motion to set aside
the previously entered judgment that in-
volved the three counts relating to the
$49,000 in alleged loans:
. On September 28, 1998, Respondent
filed a motion for sanctions against Appel-
lant . "pursuant to [Rule] 55,03 and the
inherent powers of [the][cJourt." In the
motion, Respondent accused Appellant of
committing p.erjury and of attempting to
perpetrate a fraud on the court by fIling a
lawsuit that was "false, fraudulent . and.
without basis in fact." On APli16, 2000,
Appellant sought to di smiss all pending
claims without prejudice. AppeUant later
filed a petition for writ of prohibition with
this Court to prevent the triar court from
hearing Respondent's motion for sanctions.
AppelJant's petition was denied on June 27
. ,
2000. Appellant also filed a writ of pro hi-
bition with the Missouri Supreme Court,
which was denied on June 29,
The trial court held a hearing on the
motion for sanctions on June 30, 2000. On
July 3, 2000, the trial court entered · a
judgment for' sanctions· finding Appellant
made false allegations in his petition,
false statements in affidavits, and . gave
perjured testimony regarding the transac-
tions Appellant claimed were loans . . The
trial court concluded that given its
ent power, right and duty to take th'ai
action which is necessary to protect the
integrity of the judicial process['] ; .. ·: ,
[w]hen false pleadings are filed, false
davits are filed or perjured testimony [is)
given it is the duty of the [c]ourt to impose
sanctions on· the offending' P;3.rty or
participant." Further, the court ·
mined that although Respondent · did re-
ceive benefit from the money paid by Ap-
pellant, such did "not excuse or justify
[Appellant's] acts of fraud on the [c]ourt."
AppelJant was ordered to pay $5,000 to the
registry of the court as a ·sanction for the
false pleadings, false affidavits and
jured testimony. The court also rejected
Appellant's attempted voluntary dismissal
of his claims, instead dismissing all of
pellant's remaining claims With prejudice:
Here, Appellant identifies the judgment, or
order appealed from as the judgment . for
sanctions entered July 3, 2000.
AppeUant's flrst point on appeal charges
that the trial court abused its discretion by
invoking its inherent powers to impose
sanctions for filing a frivolous pleading
because Respondent initiated the sanctions
pursuant to Rule 55.03 and the
ments of that rule were not met. Specifl-
cally, Appellant claims that the trial court
did not have jurisdiction to impose sanc-
tions because the safe harbor provision of
Rule 55.03, under which a party must wait
- -_._- ---------------
REA v. MOORE
Mo. 799
Cite as 74 S.w.3d 795 (Mo.App. S.D. 2002)
thirty days after serving the motion on the
party against whom sanctions are sought
before filing the motion with the court, was
not met. See Rule 55.03(c)(1)(A); Robin
Farms, Inc. v. B artho lome, 989 S.W;2d
238, 250 (Mo.App. W.DJ999).
[1,2] We reView under an abuse of
discretion standard, since "{a] trial court
... may, at its discretion, impose sanctions
when they are justified, the
conduct of the and ·counsel." Fos-
ter v. Kohm, :661 S.W.2d 628,631 (Mo.App.
This is t,ne s:;tmestandard
used when a coUrt sanctions based
on Rule 55.03(c). See Brown v. Kirkham;
23 S.W.3d 880:882 (Mo.App.W.D.2000).
i'An abuse of discretion occurs the
court's order is clearly against the logic of
the circumstances and is so arbitrary and
unreasonable as to shock the sense of jus-
tice and indicate a lack of careful consider-
ation." ld: at 882-83.
[3, 4] Before discussing our analysis of
Appellant's first point, we note that the
. point itself defines the boundary of our
review. See State v. Stringer, 36 S.W.3d
821, 822 (Mo.App., S.D.Z001). "The scope
of the issue for determination on appeal is
that framed in the relied on." .Id.
Within the argument portion of his brief,
Appellant raises issues outside the scope of
the point relied on. ctOur review is re-
stricted to the issuers] raised in the point
relied on." State ex rel.Wilson v. Brown,
897 S.W.2d 171, 173 (Mo.App. S.D.1995).
(5] In Appellant's first point, he claims
that the trial coUrt abused its discretion by
invoking its inherent powers to impose
sanctions for filing a frivolous lawsuit.
However nowhere in the motion for sanc-
tions was Appellant accused of filing a
frivolous lawsuit and nowhere in the judg-
ment for sanctions did the trial court
clude that sanctions were necessary based
on Appellant's filing of a frivolous lawsuit.
In fact, there was no finding that Appel-
lant had fIled a frivolous lawsuit. ' Within
the judgment for sanctions" the trial court
rendered findIngs that had filed
false pleadings and false affidavits as well
as given perjured testimony. FUrther, the
trial court based the sanctions on the false
pleadings, false affidavits, perjured testi-
mony and Appellant's "acts of fraud:;
Therefore, there iSJlo support in the rec-
ord for Appellant's contention as stllted in
his point relied o/).
In addition, ' Appellant's claim
that only Rule 55.03 can be used by the
trial court in its imposition of sanctions or
that Rule 55.03 was the only basis on
which Respondent made its motion for
sanctions is incorrect. Appellant is correct
that Missouri law is stringent in itsre-
quirement that the safe harbor provision
of Rule 55.03(c) be followed when sanctions
are imposed for Violations of Rule 55.03(b).
Robin Farms, 989 S.W,2d at ' 250. "This
rule prohibits a movant for sanctions from
filing its motion with the . trial court before
the thirty"day period after serving the mo-
tionon the other party has expired." Jd.
The intention of the' safe harbor provision
is to allow the party against whom sanc-
tions are sought an opportunity to correct
violations of Rule 55.03(b), "thereby con-
serving judicial resources if such corrective
action , is taken." 'd. " Appellant is also
correct that the safe h;rrbor provision pf
that Rule was not followed here. Howev-
er, the first ,line of Respondent's motion
for sanctions states that the motion is
made to Rule 55.03 and the in-
herentpowers of the court. The judgment
for sanctions clearly indicates on its face
that the trial court was not proceeding
pursuant to Rule 55.03, but rather it was
relying on its· responsibility to impose
sanctions for false pleadings, false affida-
vits and perjured testimony on its "inher-
ent power, right and duty to take that
800 Mo.
74 SOUTH WESTERN REPORTER, 3d SERIES
action which is necessary to protect the
integrity of the judicial process."
[9] Although Missouri· cases do not
seem to address the issue of the appropri-
ateness of using the court's inherent power
to impose sanctions versus the use of Rule
55.03, Missouri case law does provide sup-
port for the use of a colirt's inherent pow-
ers to address particular issues before it.
See Higgins v . . Director of Revenue, 778
S.W.2d 24, 26 · (Mo.App. S.D.1989). Mis-
souri courts are cautioned to exercise their
inherent powers "sparingly, wisely,tem-
perately, and With judicial self-reptrainL"
Id. Any sanctions imposed under the
couri's inherent powers should be limiteg
to . those situations in which it is "reas</n-
ably necessary to preserve the courts' exis-
tence .and protect it in the orderly adminis-
tration of its business." ld.
Federal courts have addressed the inter-
play between Federal Rule of Civil . Proce-
dure 11 (2001) and a court's inherent pow-
er. . See Chambers v. NASCa, lne;,501
U.S. 32, 50, III S.Ct. 2123, 2136, 115
L.Ed.2d 27, 49 (1991);Popev. Federal
Express Corp., 138 . F.RD. 675,
CW.D.Mo.1990). Since . Federal Rule 11
and Missouri Rule 55.03 are nearly verba-
tim, the analyses and conclusions of these
cases are instructive to the analysis here.
In Chambers, the · United States Su-
preme Court foundlhat the district comt
did not abuse its discretion when it resort-
ed to its inherent powers to impose sanc-
tions for bad faith conduct: 501 U.S. at 50,
111 S.CL at 2136, 115 L.Ed.2dat 49. The
Court determined bad faith conduct was
not covered by the Federal Rule 11 sanc-
tioning provisions. Id.; see also Corley v.
Rosewood Care Ct'r., Inc., 142 F.3d 1041,
1058-59 (7th Cir.1998) (Court determined
no bad faith conduct and thus wasneces-
sary to impose any sanctions according to
Federal Rule 11 rather than inherent pow-
ers). The Court in Chambers went further
and noted that a federal court Was not
forbidden from using its inherent
rather than a statute or rule, even if SOnie
of the conduct was covered by a statute· or
rule. Id. 501 U.S. at 50, III S.Ct. at 213&
. ,
115 L.Ed.2d at 49. .. For example, the
Court noted Federal Rule 11 could have
been used to sanction the party for
and frivolous pleadings.''' I d.
ever, the Court determined that the "en-
tire course conduct throughout the
suit evidenced bad f:;lith and an
perpetrate a fraud, on the court,
conduct sanctionable under the
within conduct that only
. . . . . . . . . .'/ \
inherent power could address ." Id. 50i
U.S. at51, IiI S.Ct. at 2136, '115 L.Ed.2d
." .' ."'
at 49. 0
In Pope, the court found that the
of a party to the litigation
bad faith and abusive conduct . . .
attempt to perpetrate a fraud on
court." 138 F.RD. at 683. Therefore, the
court concluded it was appropriate for it to
"impose sanctions against plaintiff
ant to its inherent ' equitable 'power to do
so." Id. The court arrived at this
sian after analyzing the various Federal
Rules, including Federal Rule 11, under
which sanctions coUld be imposed. 14- at
681-82. ..
In Aoude v. ' MobilOil Corp., 892 F,2q
1115, 1118 (lst the coW"t defined
fraud . on the court as occumng when l'it
can be demonstrated, clearly and
ingly, that a party has sentiently set in
motion some unconscionable scheme calcu-
lated to interfere with the judicial system's
ability impartially to adjudicate a matter
by improperly influencing the trier or
fairly hampering . the presentation of
opposing party's claim or defense."
ther, the couri noted "that a federal dis;
trict court possesses the inherent power to
deny the court's processes to one who
defiles the judicial system by committing a
REA v .. MOORE
Mo. 801
Cite as 74 S.W.3d 795 (Mo.App. S.D. 2002)
fraud on the court." I d. Among the bad
faith conduct apparent in the case was the
flling of false pleadings and documents.
Id.
[10] In the instant caSe, the trial court
concluded the "[f]acts supporting sanctions
for filing false pleadings, false affidavits
and perjured testimony must meet the
cl ear and convincing' standard of proof."
We find that was the appropriate standard
of proof and that the evidentiary documen-
tation and testimony before the court met
that standard and provided substantial evi-
dence to support the judgm,ent in issue.
Additionally, we note that the actions
found by the trial court to have been com-
I' ,
mitted by Appellant were not fully covered
by Rule 55.03, and thus justified the impo-
sition of sanctions under the c.ourt's inber-
ent powers. See Foster, 661 S.W.2d at
631. ' Based on the fraud, false pleadings,
false . affidavits and perjured testimony
found by the trial court, the use of its
inherent power was appropriate as the "ju-
dicial function [was] integrally threat-
. ened." Higgins, 778 S.W.2d at 26. Appel-
lant's first point is denied.
Appellant's second point . charges that
the trial court abused its discretion in set-
ting aside the previously ehtered judgment
by failing to identify good cause for the
action. In Appellant's notice of appeal, the
only judgment or order from which he
appeals is the July 3, 2000 judgment for
sanctions. · The notice of appeal does not
list the September 22, 1998 order, which in
part granted Respondent's motion to set
asid.e the previously entered judgment.
[11-13] Pursuant to Rule 81.08, the
judgment or order from which ' the appeal
is made; is among the items that must be
specified in the notice of appeal. See Rule
81.08(a). Missouri appellate courts favor a
disposition on the merits where possible,
particularly when such "disposition of the
merits is not hampered by the rule viola-
tion." Williams v. MFA Mut. Ins. Co.,
660 S.W.2d 437, 439 (Mo.App. E.D.l983).
Further, Missouri cases have shown a le-
niency with respect to the failure to specify
the judgment or· order appealed from, so
long as the lack of specificity does not
prejudice the other party. See id, How-
ever, that leniency has occurred primarily
in cases where the appellant sought to
appeal one judgment or,' or<:ler; Missouri
appellate courts have nqt shown such le-
niency when the notice of appeal only list-
ed one judgment or order, but the points
on appeal refened to more than one judg-
ment or order. See Anderson v.
Anderson, 869, S.W.2d 289, 292 (Mo.App.
S.D.1994); Erickson v. Pulitze1' Pub. Co.,
797 S.W.2d 853, 858 (Mo.App. E.D.1990).
In Erickson, the appellant stated in his
notice of appeal that he was appealing
from a grant of summary judgment for the
respondent and attached the order grant-
ing the summary judgment motion to the
notice of appeal; however, he left the area
marked "Judgment or Order Appealed
From" blank. . 797 S.W.2d at 858. In ad-
dition, no reference was made in his notice
of appeal to an earlier judgment, although
an alleged enor in that judgment was the
basis for one of his points on appeal. fd.
The appellate court determined that since
the notice of appeal only refened to the
grant of the summary judgment, its review
was confined to that one judgment. fd.
In Anderson, the appellant's notice of
appeal only refened to the trial court's
depial of his motion to obtain relief pursu-
ant to Rule 74.06, and not to an earlier
default judgment entered by the court.
869 S.W.2d at 291- 92. Similar to Erick-
son, the appellant in Anderson complained
about the default judgment in some of his
points of alleged enor. [d. at 292. The
appellate court followed Erickson and de-
termined it must confIne "its review to the
802 Mo. 74 SOUTH WESTERN REPORTER, 3d SERIES
judgment specified in the notice of appeal."
ld.
[14] Our situation here tracks very
closely to the circumstances described in
Erickson and Anderson; thus, we will fol-
low their precedent. The judgment is af-
fInned.
In re the MARRIAGE OF lana Leigh
ECHESSA and Rajah Tongwa
Ethessa.
Jana Leigh Echessa, Respondent" ,
v.
Rajah Tongwa Echessa, Appellant.
No. 24307.
Missouri Court of' Appeals,
Southern District,
Division One.
March 12, 2002.
Motion for Rehearing or Transfer Denied
April 3, 2002.
Husband fued motions for new trial
and rehearing following judgment and de-
cree of dissolution of marriage. The Circuit
Court, Greene County, Don E. Burrell, Jr.,
J ., denied husband's motions. Husband ap-
pealed. The Court of Appeals, Robert S.
Barney, C.J., held that husband agreed to
tenns of stipulated settlement that was
incorporated into judgment, and thus he
could not appeal that judgment.
Appeal dismissed.
1. Pleading e=>4
A pleading is not judged by its
but by its substance and its content.
2. Appeal and Error e=>977(1)
New Trial
A trial ' is afforded broad discre':
tion in awarding a n'ew trial, and its rullIlg
will not be that
, ' , .." ' • .. ;J'
was abused. V.A.M.R. 78.01. "
3. Divorce e:=>146
A reheaTIng before a family coJf1
judge is discretionary; the statute
ing a rehearing before a family court judie
proVides no automatic right of '
, . , ', _if
V.A.M.S. § 487.30; VA.M.R. l29.11.
4. Appeal and Error e=>110
A denial of a motion for ne"" trial, i$
not' an appealable order, but appeal must
be taken from the judgment to which
tion was directed.
5. Appeal and Error e=>110
Denial of a motion for rehearing
fore trial court does not present an issue
for review on appeal.
6. Divorce e=;:>179
Husband agreed to tenns of
lated settlement that was incorporated jnW
judgment and decree of dissolution of
riage, and thus husband could not appeal
that judgment, although husband claimed
that settlement was procured by fraud of
his attorney, where husband waS able to
understand legal proceedings, husband
testified that he agreed to settlement, and
purported acts of attorney, being
gent, not fraudulent, were imputed' to
client.
7. Appeal and Error
The right to appeaJ In Missouri' is
statutory. VA.M.S. § 512,020.
EXHIBIT 4
EXHIBIT 4
ATTACHMENT TO:
SELF-EXECUTING AFFIDAVIT OF
PAUL BENTON WEEKS III
[28 U.S.C. § 1746]
412
324 FEDERAL SUPPLEMENT
BASS ANGLER SPORTSMAN SOCIETY,
Plaintiff,
v.
UNITED STATES STEEL CORPORA·
TION et al., Defendants.
Civ. A. No. 70-733, N. D. Ala., S. D.
BASS ANGLER SPORTSMAN SOCIETY,
Plaintiff,
v.
A VONDALE MILLS et aL, Defendants.
Civ. A. No. 3124-N, M. D. Ala., N. D.
BASS ANGLER SPORTSMAN SOCIETY, ·
Plaintiff,
v.
STAUFFER COMPANY
et al., Defendants.
Civ. A. No. 6290-7G-T, S. D. Ala.
United States District Court.
Feb. 8, 1971.
Proceeding on motions to dismiss
action wherein plaintiff sought imposi-
tion of fines against corporate defend-
an ts for alleged violations of statu te gov-
erning deposit of refuse in navigable wa-
ters and against governmental defend-
ants for aiding and abetting such viola-
tions. The District Court held that stat-
ute allowing a person furnishing infor-
mation leading to conviction for wrong-
fuldeposit of refuse in navigable waters
to share in any fine imposed is not a
basis for implying some private right of
enforcement with respect to depositing
of refuse in navigable waters; accord-
ingly, private plaintiff could not main-
tain action to recover fines against cor-
porate and governmental defendants,
even though action was designated as a
"qui tam action," since statutes govern-
ing offense create a criminal liability
and can only be enforced by government.
Motions granted.
1. Navigable Waters <&=>35
Statute allowing a person furnish-
ing information leading to conviction for
wrongful deposit of refuse in navigable
waters to share in any fine imposed is
not a basis for implying some private
right of enforcement with respect to
depositing of refuse in navigable waters.
Rivers and Harbors Appropriation Act
of 1899. §§ 9 et seq., 13, 16, 33 U .S.C.A.
§§ 401 et seq., 407, 411.
2. Action <&=>5
Criminal statutes cannot be enforced
by civil actions.
3. District and Prosecuting Attorneys
<&=>7 (1)
Criminal statutes can only be en-
forced by proper authorities of United
States Government; a private party has
no right to enforce such statutes.
4. Criminal Law <&=>4
District and Prosecuting Attorneys
<&=>8
Mandamus "G=>61
Executive Branch through Justice
Department and U. S. attorneys is charg-
ed with enforcement of federal criminal
law and in this area has broad discre-
tion in determining whether or not to
prosecute; in exercise of such discretion,
U. S. attorneys are immune from con-
trol or interference through mandamus
or otherwise by private citizens or by
courts.
5. Penalties e=>16
A "qui tam action" lies only when
expressly or impliedly authorized by
statute to enforce a penalty by civil ac-
tion, not a criminal fine.
See publication \Yords and Phras es
fo r 0 the r judicial const ructions and
definitions.
6. Action e=>13
Even where some statutory language
seems to grant a private · right of ac-
tion, if same or related statute also clear-
ly places enforcement in hands of gov-
ernmental authorities, right of action is
exclusively vested in such governmental
authority.
7. Navigable Waters
No authority existed for private
plaintiff to maintain an action against
corporate and governmental defendants
to recover fines provided by statutes
BASS ANGLER SPORTSMAN SOC. v. uNITED STATES STEEL CORP. 415
Cite as 324 F.Supp. 412 (1971)
mation which shall lead to conviction. are immune from control or interference
(emphasis added). through mandamus or otherwise by pri-
Beyond doubt, section 407 established vate citizens or by courts. Smith v.
a crime and section 411 establishes crimi- United States, 375 F.2d 243 (5th Cir.
nal sanctions to be imposed for its viola- 1967); United States v. Cox, 342 F.2d
tion. 167 (5th Cir. 1965).
[1] Plaintiff relies solely upon the [5,6J Plaintiff's denomination of
last phrase of section 411 allowing a per- this suit as a -"qui tam" action adds
son furnishing information leading to nothing to its right to enforce a criminal
conviction to share in any fine imposed statute such as § 407. Historically a qui
as a basis for implying some private tam action is one brought by an informer
right of enforcement. Such an implica- under a statute which establishes a pen-
tion runs counter to the clear import of alty or forfeiture for the commission or
the statute which establishes a reward omission of some act, and which addi-
but not a right of private enforcement. tionally provides for the recovery of the
Such an implication would also run con- same in a civil action with part of the
trary to fundamental principles of crimi- recovery to go to the person bringing
nal law. the action. None of the many cases cited
[2J First, criminal statutes cannot
be enforced by civil actions. United
States v. Claflin, 97 U.S. 546, 24 L.Ed.
1082 (1878); United States v. Jourden,
193 F. 986 (9th Cir. 1912). Serious con-
stitutional problems are encountered in
any attempt to impose criminal sanc-
tions by way of civil procedures. See
Helvering v. Mitchell, 303 U.S. 391, 58
S.Ct. 630, 82 L.Ed. 917 (1938), and Lipke
v. Lederer, 259 U.S. 557, 42 S.Ct. 549,
66 L.Ed. 1061 (1922) .
[3, 4J Equally important is the firm-
ly established principle that criminal
statutes can only be enforced by the
proper authorities of the United States
Government and a private party has no
right to enforce these sanctions. See
Keenan v. McGrath, 328 F.2d 610 (1st
Cir.1964), and Pugach v. Klein,193 F.
Supp. 630 (S.D.N.Y.1961). It has been
repeatedly held that the Executive Branch
through the Justice Department and U. S.
Attorneys is charged with enforcement
of federal criminal law and in this area
has broad discretion in determining
whether or not to prosecute. In the ex-
ercise of such discretion U. S. Attorneys
2. 33 l' .::-:.C. § 413 that "TIle
De!Jartment of "hall conduct till'
legal proc-eedings necessar.,· to rnforre
the provisions of sections • • • 407
,. 411 of tliis title
*' • *'''
in briefs approved a qui tam action to
collect a criminal fine. All involved civil
penalties or forfeitures. All of the qui
tam cases also recognize the statutory
'origin of the right of action. It arises
not from a statutory right to share in
. the penalty but from the express or im-
plied statutory grant of authority to
maintain the action. Confiscation Cases,
74 U.S. (7 Wall.) 454, 19 L.Ed. 196
(1868). A corollary to this principle is
that even where some statutory language
seems to grant a private right of action.
.if the same or a related statute also clear-
ly places enforcement in the hands of gov-
ernmental authorities the right of action
is exclusively vested in such govern-
mental authority.2 Williams v. Wells
Fargo & Express Co., 177 F. 352 (8th
Cir. 1910); Rosenberg v. Union Iron
Works, 109 F. 844 (N.D.Calif.1901).
[7,8] The court concludes that no
authority exists for plaintiff to maintain
this action to recover fines provided by
sections 407 and 411.
3
These sections
create a criminal liability. No civil ac-
tion lies to enforce it; criminal statutes
can only be enforced by the government.
3 . . In Durning ,'. ITT In<: .. CA
\'0.9070 (W.D.\\"a!'h. Oct. :>. rhe
only similar action of which ('oUr!
is aware. a motion to dismiss plaintiff's
complaint was granted 0n the ground
that there was no right of pri"ate a("
tion under 411 for II \'iolation of 407 .
. ",", .. ".
416
324 FEDERAL SUPPLEMENT
A qui tam action lies only when expressly
or impjiedlyauthorized by statute to en-
force a penalty by civil action, not a crim-
inal fine. The express mandate of sec-
tion 413 in placing enforcement of sec-
tions 407 and 411 in the Department of
Justice prevents any interpretation cre-
ating a private right of action to recover
the specified f i n ~ s .
[9-11] It is equally clear that under
the facts of this case plaintiff is entitled
to no injunctive relief. The only ground
alleged in support of plaintiff's prayer
for such relief is that the defendants
are guilty of violating a criminal stat-
ute. It is generally held that an injunc-
tion is not a proper remedy · for the en-
forcement of criminal laws. In re Debs,
158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092,
1094 (1895); United States v. Jalas,
409 F.2d 358 (7th Cir. 1969); Nasif v.
United States, 165 F.2d 119 (5th Cir.
1948). Because injunctions are extraor-
dinary rePledies they should be granted
sparingly, and under strict rules. Reli-
able Transfer Co. v. Blanchard, 145 F .2d
551 (5th Cir. 1944).
[12] An effort to restrain activities
of the defendants alleged to be in viola-
tion of section 407 is no less an enforce-
ment of that section than the imposition
of criminal sanctions. The language of
section 413 is unrestrictive in commit-
ting all enforcement powers exclusively
to the Department of Justice and bars
the injunctive aspect of this action as ef-
fectively as it bars the aspect in which
fines are sought to be imposed. The rea-
sons for placing exclusive enforcement of
criminal statutes in the pr.oper govern-
mental officials are even more applica-
ble to enforcement of such statutes by
injunction. Even assuming that, under
extraordinary circumstances not here
shown, the Justice Department could en-
force section 407 by injunction, this
plaintiff shows no interest in its en-
forcement different from that of the
public in general and, thus, has no right
to such relief.
The reasons hereinabove discussed re-
quiring dismissal of this action as to the
corporate defendants are equally applica-
ble to the relief sought against the gov-
ernmental defendants. Moreover, the re-
lief requested by the plaintiff against
the Secretary of the Army and Chief of
the Corps of Engineers, described as
group B defendants, was that a perma-
nent injunction issue requiring them to
establish and apply standards for the
issuing of permits allowing the dumping
of refuse into the navigable waters and
tributaries thereof within the State of
Alabama. Such request must be con-
strued as being for a writ of mandamus
under 28 U.S.C. § 1361 because the re-
lief sought would compel an officer of
the United States to perform an affirma-
tive action.
[13] Such writ will issue only if the
act to be compelled is ministerial and so
plainly prescribed as to be free from
doubt. United States v. Walker, 409 F.
2d 477 (9th Cir. 1969), and cases cited
therein.
[14J Examination 01'33 U.S.C. §§ 407
and 419 reveals that the establishing of
a permit program by the Secretary of the
Army and the Chief of the Corps of
Engineers is discretionary with them as
opposed to mandatory. Section 407
states:
That the Secretary of the Army, when-
ever in the judgment of the Chief of
Engineers anchorage and navigation
will not be injured thereby, may per-
mit the deposit of any material above
mentioned in navigable waters . * *
Section 419 authorizes and empowers the
Secretary of the Army to prescribe regu-
lations under the Act but does not re-
quire him to do so. Accordingly, a writ
of mandamus will not issue. Since 28
U.S.C. § 1361 does not authorize this
. action, it exists as a suit against the
sovereign to which the sovereign has not
consented, Dugan v. Rank, 372 U.S. 609,
83 S.Ct. 999, 10 L.Ed.2d 15 (1963);
Malone v.Bowdoin, 369 U.S. 643, 82 S.
Ct. 980, 8 L.Ed.2d 168 (1962); Larson
v. Domestic and Foreign Commerce Cor-
poration, 337 U.S. 682, 69 S.Ct. 1457,
93 L.Ed. 1628 (1949), and accordingly
UNITED STATES v. ORTIZ
Cite I\S 324 F.Supp. 41, (1971)
417
the motion to dismiss must be sustained
on all three grounds thereof.
For precisely the same reasons such
action is due to be dismissed as to the
State of Alabama Water Improvement
Commission and R. L. Meyers, its chair-
man. To the citations of cases in the
preceding paragraph are added Hans v.
Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33
L.Ed. 842 (1889); Simons v. Vinson,
394 F.2d 732 (5th Cir. 1968); Gardner
v. Harris, 391 F.2d 885 (5th Cir. 1968).
An order will be entered dismissing the
action and taxing costs against the plain-
tiff.
UNITED STATES of America
\'.
Arcadia ORTIZ and Margarita Martinez,
Defendants.
No. 68 CR. 3!Wi.
United States District Court,
S. D. New York.
Feb. 9, 1971.
Prosecu tion for uttering false or
forged postal money order. The District
Court, Tenney, J., held that defendant
charged in indictment with uttering
forged postal money orders knowing
that the signature of the purchaser on
each such money order was false and
forged and that material alteration had
been falsely made on each such money
order by the imprinting thereon of a
counterfeit issuing office stamp could
not be convicted on proof that she ut-
tered false and forged money orders
with knowledge that endorsements there-
on were forged, and court could not
amend indictment to conform to the evi-
dence on theory that discrepancy be-
tween evidence and indictment was only
an immaterial variance.
Defendant acquitted.
324
Forgery <t::=>34(2)
Indictment and Information
Defendant charged in indictment
with uttering forged postal money or-
ders knowing that the signature of the
purchaser on each such money order was
false and forged and that material alter-
ation had been falsely made on each
such money order by the imprinting
thereon of a counterfeit issuing office
stamp could not be convicted on proof .
that she uttered false and forged money
orders with knowledge that endorse-
ments thereon were forged, and court
could not amend indictment to conform
to the evidence on theory that discrepan-
cy between evidence and indictment was
only an immaterial variance. 18 U .S.C.
A. § 500.
Whitney North Seymour, Jr., U. S.
Atty., for S. D. N. Y., John W. Nields,
Jr., Asst. U. S. Atty., of counsel for
plaintiff.
Robert Mitchell, New York City, for
defendant Ortiz.
TENNEY, District Judge.
The defendant, Arcadia Ortiz, was
tried before this Court sitting without a
jury on December 14, 1970 and January
13, 1971. She was charged with violat-
ing Section 500 of Title 18 of the United
States Code which makes it a crime to
utter a false or forged postal money or-
der "knowing any material signature or
indorsement thereon to be false, forged,
or counterfeited, or any material altera-
tion therein to have been falsely made."
The instant indictment, however, specifi-
cally charged that the defendant uttered
the forged money orders "knowing that
the * * * signature of the pur-
chaser on each such money order was
false and forged and that a material al-
teration had been falsely made on each
such money order by the imprinting
thereon of a counterfeit issuing office
stamp." Although the Government has
proven that the defendant uttered false
and forged money orders with the
knowledge that indorsements thereon
EXHIBIT 5
EXHIBIT 5
ATTACHlVIENT TO:
SELF-EXECUTING AFFIDAVIT OF
PAUL BENTON WEEKS III
[28 U.S.C. § 1746]
BASS ANGLERS SPORTSMAN'S SOC. v. SCHOLZE TANNERY, INC. 339
Cite as 329 F.Su]'p. 339 (l9il)
not the right to hold office or employ- This Court in Antal v. Budzanoski,
ment but the infringement of the rights 320 F.Supp. 161, at page 163 (W.D.Pa.,
of plaintiff as a member of the union to 1970), stated:
freedom of speech in union affairs.
[6,7] It appears to us that Plaintiff
is attempting to litigate his title to of-
fice. As such he has no standing to sue.
The exclusive procedure governing elec-
tions to and removal from office are
those provided by Title IV, Sections 401
and 402 of the L.M.R.D.A. of 1959, (29
U.S.C.A. §§ 481, 482) where the only
party who had standing to sue in the
United States District Court is the Sec-
retary of Labor, after the exhaustion of
internal remedies and complaint by the
aggrieved party to the Secretary of La-
bor. Calhoon v. Harvey, 379 U.S. 134,
85 S.Ct. 292, 13 L.Ed.2d 190 (1964);
Mamula, cit. supra; Nelms v. United
Association of Journeymen and Appren-
tices of Plumbing and Pipe Fitting In-
dustry of U.S. and Canada (5th Cir.,
1968) 405 F.2d 715; Local 115, United
Brotherhood of Carpenters and Joiners
of America v. Vnited Brotherhood of
Carpenters and Joiners of America. 247
F.Supp. 660 (D.C.Conn., 1965); Gulick-
son, cit. supra.
Defendant also urges that Plaintiff
has failed to exhaust internal remedies
as required by Section 101(a) (4) of Ti-
tle IV of the L.M.R.D.A. of 1959 (29 U.
S.C.A. § 411 (a) (4). Plaintiff has filed
an affidavit that no internal remedy was
available under the Constitution or By-
Laws of the Defendant prior to the
opening of the convention on June 8,
1971. Plaintiff did file a notice of ap-
peal on June 2, 1971, with the Interna-
tional Secretary-Treasurer; on which no
action has been taken. Defendant has
filed an affidavit that Plaintiff made no
attempt to appear before the Credentials
Committee of the Convention on June 7,
1971, to contest his removal as a dele-
gate; and Defendant claims that the
Constitution of the Union provides' a
remedy in the form of an appearance be-
fore the Standing Committee on Appeals
with respect to Plaintiff's removal from
office.
"Statutory limitations and restrictions
were expressly imposed by Congress
to avoid as much as possible judicial
interference into the internal manage-
ment of labor organizations and to
compel, as far as possible, the parties
involved to seek their remedies
through the internal machinery of the
labor organizations."
Regardless of whether there are ap-
propriate and available internal reme-
dies in the Defendant's Constitution or
By-LaViS, the Plaintiff asserts no cause
of action under Title I of the Act and
the motion for summary judgment must
be granted. As previously discussed,
Plaintiff has no standing to sue under
Title IV; and the Plaintiff's proper
remedy is to file a complaint with the
Secretary of Labor in accordance with §
481 of Title IV.
BASS ANGLERS SPORTSMAN'S SOCI·
ETY OF AMERICA and Chatta·
nooga Bass Club
v.
SCHOLZE TANNERY, INC., et al.
Civ. A. No. 6009.
United States District Court,
E. D. Tennessee, S. D.
May 17, 1971.
Action by conservation groups
against alleged industrial polluters, the
Secretary of the Army, the Director of
the Corps of Engineers and the Depart-
ment of Justice for penalties and injunc-
tive relief arising out of alleged viola-
tions of the Rivers and Harbors Act of
1899. The District Court. Frank \V.
Wilson. Chief Judge, held that conserva-
tion organizations did not have standing
__ ".-' ......... ..,.. - ._ •• ~ -,. 0"'''''
340
329 FEDERAL SUPPLEMENT
to bring action against alleged industrial
polluters to recover penalties for the al-
leged violation of statutes relating to de-
posit of refuse in navigable waters; the
exclusive power of the Department of
Justice to enforce the statutes precluded
any private civil action, including qui
tam action, for recovery of informer's
moiety.
Dismissed.
1. Penalties ~ 2 4
A . "qui tam" action is action
brought by an informer, under statute
which establishes penalty for commis-
sion or omission of a certain act, and
provides that same shaH be recoverable
in civil action, part of the penalty to go
to any person who will bring such action
and the remainder to the state or some
other institution. Rivers and Harbors
Appropriation Act of 1899. §§ 13, 16, 17,
33 U.S.C.A. §§ 407,411.413.
See publication \Yords and Phrases
for other judicial constructions and
definitions.
2. Navigable Waters 935
For informer to recover in qui tam
action to recover one-half of fine im-
posed on polluter in prosecution for vio-
lation of statutes relating to deposit of
refuse in navigable waters, a criminal
proceeding must be instituted against
the polluter, a conviction obtained and a
fine imposed as punishment. Rivers and
Harbors Appropriation Act of 1899, §§
13, 16, .33 lJ .S.C.A. § § 407, 411.
3. Action €=>5
Criminal statutes cannot be en-
forced by civil proceedings.
4. Action €=>5
Alleged violations of criminal stat-
utes may be enforced only by the proper
prosecuting authorities and not by pri-
vate parties.
5. Attorney General 97
The Attorney General and his rep-
resentatives in the Department of Jus-
tice are vested with broad discretion in
determining whether to prosecute partic-
ular criminal violation and in determin-
ing how any such prosecution will be
maintained.
6. Mandamus C==>61
Mandamus will not lie to control ex-
ercise of Attorney General's disc retion
as to whether to prosecute particular
criininal violation nor may the court. or
private citizens otherwise interfere with
the free exercise of the discretionary
powers of the Attorney General and his
representatives in their consideration,
investigation and prosecution of crimi-
nal violations.
7. Navigable Waters e:>35
Conservation organizations did not
have standing to bring action against al-
leged industrial polluters to recover pen-
alties for the alleged violation of stat-
utes relating to dep0sit of refuse in nav-
igable waters; the exclusive power of
the Department of Justice to enforce the
statutes precluded any private civil ac-
tion, including qui tam action, for recov-
ery of informer's moiety. Rivers and
Harbors Appropriation Act of 1899, §§
13, 16, 17, 33 V.S.C.A. §§ 407, 411, 413.
8. Injunction €=>102
Generally, injunctive reiief is not
proper remedy for enforcement of crimi-
nal laws.
9. Injunction C==>102
When only ground for seeking in-
junctive relief is that criminal violation
has occurred, the courts will not inter-
fere by injunction; resort to extraordi-
nary remedy of injunction should not be
used for sole purposes of enforcing crim-
inallaws.
10. Injunction C==>102
Nuisance C==>80
Judicial reluctance to enjoin com-
mission of a crime is subject to the ex-
ceptions of national emergencies, wide-
spread public nuisance and when a spe-
cific statutory grant of power exists.
n. Na"igable Waters e:>35
District court had power to enjoin
industrial plants from violation of stat-
ute making it unlawful to deposit any
refuse in navigable waters of the United
States. Rivers and Harbors Appropria-
BASS ANGLERS SPORTSMAN'S SOC. v. SCHOLZE TANNERY, INC. 341
Cite a ~ 329 F-Il1PP. 33!l (l9:1l
tion Act of 1899, § 13, 33
407.
12. Navigable Waters C=>35
U.S.C.A. § would mandamus lie to require Depart-
ment of Justice to join wi th conserva-
tion groups in seeking injunctive relief
Conservation groups did not have
standing to seek injunctive relief
against violation by industrial plants of
statute which makes it unlawful · to de-
posit refuse in the navigable waters of
the United States. Rivers and Harbors
Appropriation Act of 1899, § 13, 33 U.
S.C.A. § 407.
13. InjllI1ction €=>U4(2)
Private indiyidual has no standing
to champion the rights of the public, ex-
cept where such private indi\' idual suf-
fers some special injury or damage.
Rivers and Harbors Appropriation Act
of 1899, § 13,33 U.S.C.A. § 407.
14. Mandamus €=>1, 10, 12
Mandamus is extraordinary writ
and prior to its issuance, party request-
mg it must establish that he had clear
and certain right and that the duties of
the defendant are plainly defined and
peremptory.
15. Mandamus €=>71, 72
. Mandamus is proper to command an
official to perform a ministerial or non-
discretionary act, but is not appropriate
to require an official to perform some
discretionary act.
16. Mandamus .G=;>99
District Court was without power
under the Rivers and Harbors Appropri-
ations Act of 1899 to compel the devel-
opment and implementation by the Sec-
retary of the Army and the Chief of
Army Corps of Engineers of permit sys-
tem for the discharge of refuse in the
navigable waters. Rivers and Harbors
Appropriation Act of 1899, §§ 9 et seq.,
13, 33 U.S.C.A. §§ 401 et seq., 407 and
419.
17. Mandamus C=>61, 99
The discretion of the A ttorney Gen-
eral in choosing whether to prosecute \ ' j-
olations of Act prohibiting the deposit
of refuse in navigable waters is absolute
~ n d mandamus would not lie to control
the free exercise of the discretion nor
against violation of the statute. Rivers
and Harbors Appropriation Act of 1899,
§§ 13, 17,33 U.S.C.A. §§ 407, 413.
18. United StatesC=>125 (28, 30)
Action by conservation groups
against Attorney General and Chief of
Corps of Engineers to compel the prose-
cution of alleged pollution of navigable
waters and to require issuance of regu-
lations governing the deposit of refuse
in navigable waters constituted action
against the United States to which it
had not consented and was subject to
dismissal. Rivers and Harbors Appro-
priation Act of 1899, §§ 13, 17, 33 U.S.
C.A. §§ 407, 413; 28 U.S.C.A. § 1361.
19. United States (::::>125(3)
Suit may be brought against the
Unl ted States without its consent where
the suit involves action by United States
officers beyond their statutory powers
or when the powers themselves or the
manner in which they are exercised are
constitutionally void even though the of-
ficers are acting within the scope of
their authority. 28 U.S.C.A. § 1361.
Finnell, Thompson & Scott, Cleveland,
Tenn., for plaintiffs.
Chambliss, Bahner & Crawford, Chat-
tanooga, Tenn., for defendants Swift
Edible Oil Co., Farmers Chern. Co. &
McKee Baking Co.
Ralph Shumacker, Chattanooga, Tenn.,
for Highway 58 Shopping Center.
Tanner & Jahn, Chattanooga, Tenn.,
for Selox Inc.
E. K. Meacham, Chattanooga, Tenn ..
for City of Chattanooga.
Morgan, Garner & Wood, Chattanooga,
Tenn., for Nation Hosiery Mills, Inc.
Bishop. Thomas, Leitner , Mann & l\1il-
burn, Chattanooga, Tenn. , for Chattam
Drug & Chemical Co.
R. Wayne Grant, Chattanooga, Tenn.,
for Industrial Plating Co.
342
329 FEDERAL SUPPLEMENT
Stophel, Caldwell & Heggie. Chatta-
nooga, Tenn .. for W. R. Grace & Co.
Witt, Gaither. Abernathy & Wilson,
Chattanooga, Tenn., for Wheland Found-
ry, Woodward Iron Co. & Ray Ser
Dyeing Co.
Miller, Martin, Hitching, Tipton, Len-
ihan & Waterhouse, Chattanooga, Tenn.,
for Bowaters Southern Paper Co., Al-
coa Chemical & Olin Mathieson Chern.
John L. Bowers, U. S. Atty .. for
Army.
Bass, Berry & Sims by Chas. Wray,
Nashville, Tenn., for Olin Corp.
OPINION
FRANK W. WILSON, Chief Judge.
This civil suit for penalties and in-
junctive relief arises out of alleged vio-
lations of 33 U.S.C. §§ 407 and 411 (the
Rivers and Harbors Act of 1899). The
plaintiff, Bass Anglers Sportsman's So-
ciety of America. Inc., is a society com-
posed of some 11,000 members whose
purpose is the furtherance of conserva-
tion interests and connected
with the overall use of waterways and
navigation throughout the · enited
States. The plaintiff, Chattanooga Bass
Club, Inc., is an affiliate of Bass An-
glers Sportsman's Society of America,
Inc., in its conservation programs. The
defendants are classified as Group A
.. a'nd Group B defendants. The Group A
defendants are composed of a number of
manufacturers and processors that are
allegedly polluting thewatenvays of
Tennessee. The Group B defendants are
the Secretary of the Army and the
Director of the Corps of Engineers re-
spectively, who allegedly ha\"e failed to
perform their duties as imposed by law.
Additionally and by motion to amend the
plaintiff seeks to add the Department of
Justice as a Group B defendant since it
also allegedly has failed to perform its
designated function pursuant to the Riv-
ers and Harbors Act of 1899.
The legal theory of the plaintiffs in
the instant case appears identical to the
theory of the. plaintiffs in the case enti-
• tied "Bass Anglers Sportsman's Society
of America. et al. v. United States Ply-
wood-Champion Papers. Inc., et a!.," 324
F.Supp. 302 (D.C.S.D.Texas 1971. Dock-
et 70-H-I004). Judge Seals there de-
fined the plaintiffs' theory in the follow-
ing terms:
The legal theory of the plaintiffs in
the present suit is that they have the
right to prosecute a qui tam action
pursuant to Sections 407 and 411 of
Title 33, U.S. C., to obtain an injunc-
tion prohibiting the industrial defend-
ants from dumping refuse into Texas
waterways without a permit in viola-
tion of § 407, to obtain penalties pro-
vided by § 411 for each such violation
of § 407, and to obtain an injunction
requiring defendant Stanley R. Resor,
Secretary of the Army. and defendant,
FrederickJ. Clark. Chief of Engi-
neers, United States Army Corps of
Engineers, to establish standards for
the issuing of permits allowing the
dumping of refuse into navigable wa-
terways and tributaries of navigable
waterways in the State of Texas and
to apply these standards, once formu-
lated, to anyone desiring to dump
refuse into those navigable Texas wa-
terways protected by 33 U.S.C. §§ 407
and 411. The plaintiffs have stated
their cause of action no broader than
§§ 407 and 411 of Title 33, U.S.C.
Thus, plaintiffs must establish that
they may, by this civil action, sue to
enforce sections 407 and 411, or else
the action must be dismissed for fail-
ure to state a claim upon which relief
can be granted.
Additionally and. by motion to amend,
the plaintiffs in the instant case seek to
obtain a writ of mandamus requiring
the Department of Justice to perform
mandatory duties imposed by 33 U.S.C.
§ 4i3 and specifically to join the plain-
tiffs in the prosecution of this action.
Before embarking upon a detailed
analysis of the legal issues for decision
by the Court, it is appropriate to set out
the provisions of each of the statutes
with which the Court will be concerned.
BASS ANGLERS SPORTSMAN'S SOC, v. SCHOLZE TANNERY, INC. 343
Cite as 329 F.Supp. 339 (19.1)
Section 407 of Title 33 C.S.C. provides Section 411 of Title 33, U.S.C., establish-
the following: es the following penalties for violation
Deposit of refuse in navigable waters
generaUy. It shall not be lawful to
throw, discharge, or deposit, or cause,
suffer, or procure to be thrown, dis-
charged, or deposited either from or
out of any ship, barge, or other float-
ing craft of any kind, or from the
shore, wharf, manufacturing ' estab-
lishment, or mill of any kind, any
refuse matter of any kind or descrip-
tion whatever other than that flowing
from streets and sewers and passing
therefrom in a liquid state, into any
navigable water of the United States,
Dr into any tributary of any navigable
water from which the same shall float
or be v.:ashed into such navigable wa-
ter; and it shall not be lawful to de-
posit, or cause, suffer, or procure to
be deposited material of any kind in
any place on the bank of any naviga-
ble water, or on the bank of any trib-
utary of any navigable water, where
the same s hall be liable to be washed
into such navigable water, either by
ordinary or high tides, or by storms
or floods , or otherwise, whereby navi-
gation shall or may be impeded or ob-
structed: Provided, That nothing
herein contained shall extend to, apply
to, or prohibit the operations in
connection with the improvement of
navigable waters or construction of
public works, ' considered necessary
and proper by the United States offi-
cers supervising such improvement or
public work: And Provided Further,
That the Secretary of the Army,
whenever in the judgment of the
Chief of Engineers anchorage and
navigation will not be injured thereby,
may permit the deposit of any materi-
al above mentioned in navigable wa-
ters, within limits to be defined and
under conditions to be prescribed by
him, pro\'ided applicat.ion is made tc
him prior to depositing such material;
and whene\'er any permit is so grant-
ed the conditions thereof shall be
strictly complied with, and any viola-
tion thereof shall be unlawful.
of § 407:
Every person and every corporation
that shall violate, or that shall know-
ingly aid, abet, authorize, or instigate
a violation of the provisions of sec-
tions 407, 408, and 409 of this title
shall be guilty of a misdemeanor, and
on conviction thereof shall be pun-
ished by a fine not exceeding $2,500
nor less than $500, or by imprison-
ment (in the case of a natural person)
for not less than thirty days nor more
than one year, or by both such fine
and imprisonment, in the discretion of
the court, one-half of said fine to be
paid to the person or persons giving
information which shall lead to convic-
tion.
Finally, section 413 of Title 33, U.S.C.,
provides that:
The Departmen t of Justice shall con-
duct the legal proceedings necessary
to enforce the provisions of sections
'* * '* 40'/ '* '* '* 411 * '* '*
of this title; and it shall be the duty
of United States Attorneys to vigor-
ously prosecute all offenders against
the same whenever requestec to do so
by the Secretary of the Army or by
any of the officials hereinafter desig-
nated '* '* '*"
Several observations are appropriate in
considering the applicability of the
aforementioned statutes to the instant
case. First of all, § 407 establishes and
defines a crime. Second, § 411 provides .
that violation of § 407 shall be a misde-
meanor. Further, § 407 de-
fines the punishment to be imposed "on
conviction." Finally, § 413 prcvides
that it is the responsibility of the De-
partment of Justice to conduct all the le-
gal proceedings necessary to enforce §
407.
[1 J Section 411 provides that upon
conviction of a violation of § 407, the
defendant shall be punished by "fine"
and/or "imprisonment." Further, the
statute states that if a fine is impos ed,
"one-half of said fine to be paid to the
344
329 FEDERAL SUPPLEMENT
person or persons giving information
which shall lead to conviction." This
provision of § 411 is crucial in the in-
stant case for the plaintiffs premise
their right to enforce the provisions of §
407 upon this phrase of the statute.
That is, the plaintiffs maintain that
they should be permitted to proceed with
this suit under § 407 and § 411 as a qui
tam action. A qui tam action is "an ac-
tion brought by an informer, under a
statute which establishes a penalty for
the commission or omission of a certain
act, and provides that the same shall be
recoverable in a civil action, part of the
penalty to go to any person who wiII
bring such action and the remainder to
the state or some other institution."
Black's Law Dictionary, 'p. 1414. Judge
Pollock in Williams v. Wells Fargo & Co.
Express, 177 F. 352 (8th Cir. 1910, de-
scribed the qui tam action as. follows:
It would seem at the common law ac-
tions to recover penalties
by law were often prosecuted by what
was known as "common informers."
Blackstone's Commentaries, Book 3
[Coolidge Ed.] 160, and when a por-
tion of the penalty recovered went to
the person or persons informing, and
a portion to the sovereign, the action
was styled a "qui tam action."
Judge Pollock also observed tha t:
While it has been held there must be
either express statutory authority au-
thorizing an informer to prosecute in
his own name, or such right must be
given by necessary implication (cases
cited), yet, on the contrary, it has
been ruled where a statute gives a
portion of the recovery to an informer
who prosecutes for the same 1(- 1(- *
such statute contains sufficient im-
plied authority to support a prosecu-
tion by an informer in his own name.
Adams, Qui Tam, v. Woods, 2 Cranch,
336, 6 U.S. 336, 2 L.Ed. 297; * 1(- ••
This observation was further considered
in United States ex reI. Marcus v. Hess,
317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443
(1943), where Justice Black noted in
footnote 4 that: "Statutes providing for
a reward to informers which do not spe-
cifically either authorize or forbid the
informer to institute the action are con-
strued to authorize him to sue. Adams
v. Woods, 2 Cranch 336, 6 U.S. 336, 2 L.
Ed. 297." Adams v. Woods, supra" was
an action of debt brought to recover a
penalty imposed by an act entitled "An
Act to prohibit the carrying on the slave
trade from the United States to any for-
eign place or country." The Court
applying rules of statutory construction
concluded that: "In this particular
case, the statute which creates the for-
feiture does not prescribe the mode of
demanding it; consequently, either debt
or information would lie."
[2] Turning to the circumstances of
the instant case, each of the District
Courts that have had occasion to consid-
er Justice Black's comments, have reject-
ed his analysis of the law. See Reuss v.
Moss. American, Inc., No. 70-C-485 (E.
D.Wisc. Feb. 23, 1971); Reuss v. Peter
Cooper Corp., No. 70-C-486 (E.D.Wisc.,
Feb. 23, 1971) 323 F.Supp. 848; Bass
Angler Sportsman's Society v. United
States Steel Corp., et al. Nos. 70-733
(N.D.Ala., Feb. 8, 1971), 3124-N (M.D.
Ala., Feb. 8, 1971), 6290-70-T (S.D.
Ala., Feb. 8, 1971), 324 F.Supp. 412;
Durning v. 1. T. T. Rayonier, No. 9070,
325 F.Supp. 446 (W.D.Wash., Oct. 5,
1970); Bass Anglers Sportsman's Socie-
ty of America, et al v. U. S. Plywood-
Champion Papers, Inc.: As stated in the
latter case:
Justice Black·s dictum would appear
to state the law too broadly. The qui
tam action depends entirely upon stat-
utory authorization, as it has never
found its way into the common law.
The action arises only upon a statuto-
ry grant. The fact that someone is
entitled by statute to share in some
penalty or forfeiture does not neces-
sarily also give such person the right
to bring an original action to recover
such penalty or forfeiture. There
must be statutory authority, either ex-
press or implied, for the informer to
bring the q7.1i tam action. When the
statute is silent as to whether the qui
tam action is authorized, and nothing
BASS ANGLERS SPORTSMAN'S SOC. v. SCHOLZE TANNERY, INC. 345
Cite as 329 F.Supp. 339 (19;ll
can be· gleaned concerning congres-
sional intent from the circumstances
surrounding the passage of the statute
then perhaps Justice Black's construc-
tion in favor of · the qui tam action
may be justified in many instances.
But Black's construction obviously is
inappropriate whenever the statute's
language by necessary implication pre-
cludes such a conclusion.
An examination and analysis of § 411
shows clearly that the criticism of Jus-
tice Black's dictum is well taken. First
of all, § 411 provides that every person
or corporation violating § 407:
' . ~ ... if (S) hall be guilty of a misde-
meanor, and on conviction thereof
shall be punished by a fine * * ...
or by imprisonment ... * *, or by
both such fine and imprisonment, in
the discretion of the court, one-half of
said· fine to be paid to the person or
persons giving information which
shall lead to conviction. (Emphasis
added)
Accordingly, the informer's rights de-
pend upon three prerequisites:
1) A criminal proceeding being insti-
tuted under § 411 ;
2) A conviction obtained in the crimi-
nal proceedi ng; and
3) The imposition of a fine as punish-
ment.
See Bass Anglers Sportsman's Society of
America, et al. v. U. S. Plywood-Champi-
on Papers, Inc., et aI., supra. The in-
fOl'mer's rights are dependent entirely
upon the successful prosecution of a
criminal action.
[3] Viewed in this light, several ad-
ditional observations are In order.
First, criminal statutes cannot be en-
forced by civil proceedings. United
States v. Claflin, 97 U.S. 546, 24 L.Ed.
1082 (1878). See also Helvering v.
Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82
L.Ed. 917; United States v. Regan, 232
U.S. 37, 34 S.Ct. 213, 58 L. Ed. 494;
Hepner v. United States. 213 U.S. 103,
29 S.Ct. 474, 53 L.Ed. 720.
329 F.Supp.-22l/z
[4-6] Second and more important,
case law indicates that alleged violations
of criminal statutes may be enforced
only by the proper prosecuting authori-
ties and not by private parties. See Pu-
gach v. Klein, 193 F.Supp. 630 (S.D.N.
Y.1961). In this regard, case law is
likewise clear that the Attorney General
and his representatives in the Depart-
ment of Justice are vested with broad
discretion in determining whether to
prosecute a particular criminal violation
and in determining how any such prose-
cution will be maintained. See Spillman
v. United States, 413 F.2d 527 (9th Cir.
1969) cert. den. 396 U.S. 930, 90 S.Ct.
265, 24 L.Ed;2d 228 ; Smith v. United
States, 375 F.2d 243 (5th Cir. 1967)
cert. den. 389 U.S. 841, 88 S.Ct. 76, 19
. L.Ed.2d 106; United States v. Cox, 342
F .2d 167 (5th Cir. 1965) cert. den. 381
U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700.
Indeed, in Smith v. United States, supra,
Judge Goldberg stated the principle in
the following terms:
The President of the United States is
charged in Article 2, Section 3, of the
Constitution with the duty to "take
care that the laws be faithfully exe-
cuted ., ., *" The Attorney Gen-
eral is the President's surrogate in
the prosecution of all offenses agai nst
the United States. 5 U.S.C.A. § 291
et seq., 28 U.S.C.A. § 507. The dis-
cretion of the Attorney General in
choosing whether to prosecute or not
to prosecute, or to abandon a prosecu-
tion already started, is absolute. Con-
fiscation Cases, 1869, 74 U.S. (7
Wall.) 454, 19 L.Ed. 196; Powell v.
Katzenbach, 1965, 123 U.S.App.D.C.
250, 359 F.2d 234, cert. den. 1966, 384
U.S. 906, 86 S.Ct. 1341, 16 L.Ed.2d
359, reh. den. 384 U.S. 967, 86 S.Ct.
1584, 16 L.Ed.2d 679 .
See also Newman v. United States, 127
U.S.App.D.C. 263, 382 F.2d 479 (1967);
Epperson \'. United States, 125 U.S.
App.D.C. 303, 371 F.2d 956 (D.C.Cir.
1967); In re Grand Jury January 1969,
315 F.Supp. 662 (D.Md.1970); United
States V. Interlake Steel Corp., 297 F.
346
329 FEDERAL SUPPLEMENT
Supp. 912 (N.D.I11.1969) [discussing
discretion exercised by United States
Attorney in prosecution under the Riv-
ers and Harbors ActJ; Shipman v.
United States, 309 F.Supp. 441 (E.D.
Va.1970). Moreover, mandamus will not
lie to con trol the exercise of this discre-
tion nor may the courts or private citi-
zens otherwise interfere with the free
exercise of the discretionary powers of
the Attorney General and his represent-
atives in their consideration, investiga-
tion and prosecution of criminal viola-
tions. See Peek v. Mitchell, 419 F.2d
575 (6th Cir. 1970); Smith v. United
States, supra; United States v. Cox, su-
pra.
[7J Accordingly under the circum-
stances of the instant case and the appli-
cable law the Court is of the opinion
that the plaintiffs have no standing to
maintain this action pursuant to §§ 407
and 411 nor to recover the penalty pro-
vided by § 411 short of a successful
criminal prosecution. These statutes
create and define crimes which may not
be prosecuted by private civil action.
The designation of the action as a qui
tam action does not circumvent the con-
clusions reached for § 413 provides ex-
plicitly · that the power to enforce the
provisions of §§ 407 and 411 lies exclu-
sively in the Department of Justice,
thereby precluding any private civil ac-
tion for the recovery of the informer's
moiety.
In addition to seeking recovery of the
fine provided in § 411, the plaintiffs
also seek injunctive relief against both
the Group A and Group B defendants.
Indeed, the injunctive relief is actually
the primary relief sought by the plain-
tiffs. As represented unto the Court at
the hearing in this case, the recovery of
the monetary fine provided in § 411 was
at best a secondary objective of the
plaintiffs. The plaintiffs' primary
objective has been and remains the
objective of preventing the defendants
from polluting the waterways of Tennes-
see.
[8- 10] As to the Group A defend-
ants, the plaintiffs seek a permanent in-
junction
"* * * prohibiting defendants
from depositing refuse or waste of
any kind or description into any navi-
gable waterway or tributary of any
navigable waterway, or to deposit any
such refuse or waste on the banks of
any navigable water or on the bank of
any tributary of any navigable water
in violation of 33U.S.C. Section 407,
without a permit from the Secretary
of the Army as provided by statute."
The Court has heretofore observed that
§ 407 is a statute defining a criminal vio-
lation. Accordingly, the plaintiffs seek
in this phase of the litigation to enjoin
activity that is held by § 411 to be a
crime. In this regard, the general rule
appears to be that injunctive relief is
not a· proper remedy for the enforcement
of criminal laws. See In re Debs, 158
U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092
(1895) . That is, where the only ground
for seeking injunctive relief is that a
criminal violation has occurred, the
Courts will not interfere by an injunc-
tion since resort to the extraordinary
remedy of injunction should not be used
for the sole purpose of enforcing the
criminal laws. As noted in United
States v. Jalas, 409 F.2d 358 (7th Cir.
1969), this reluctance by the Courts to
enjoin the commission of a crime is sub-
ject to the following three exceptions:
1) national emergencies, 2) widespread
public nuisance, and 3) where a specific
statutory grant of power exists. In
summary, the criminal nature of a par-
ty's action is not in and of itself deter-
minative of whether an injunction is
necessary or appropriate. That is, as
noted in 42 Am.Jur.2d, "Injunctions" §
157:
The remedy at law by criminal prose-
cution is not always efficacious and
adequate, and however reluctant equi-
ty may be to use the process of in-
junction against criminal and penal
acts, . it will not hesitate to do so
where the relief is necessary to pro-
BASS ANGLERS SPORTSMAN'S SOC. v. SCHOLZE TANNERY, INC. 347
Cite as 329 F.Supp. 339 ( l ! I ~ ! )
tect the rights of the public or of pri- concisely stated by Mr. Justice Fortas in
vate individuals. Thus, it is generally . the Wyandotte case, as follows:
held that an injunction will be granted The Federal Government is charged
to restrain acts amounting to a public with ensuring that navigable water-
nuisance if they affect the civil or ways, like any other routes of com-
property rights or privileges of the merce over which it has assumed con-
public or endanger the public health, trol, remain free of obstruction. Cf.
regardless of whether such acts are In re Debs, 158 U.S. 564, 586, 15 S.Ct.
denounced as crimes. 900, 907, 39 L.Ed. 1092, 1103 (1895).
The plaint.iffs contend in the instant The Rivers and Harbors Act of 1899,
case that the deposits of waste and an assertion of the sovereign power of
refuse into the streams of Tennessee the United States, Sanitary District
have had and will continue to have a of Chicago v. United States, 266 U.S.
detrimental effect upon the fish and 405, 45 S.Ct. 176, 69 L.Ed. 352 (1925)
wildlife frequenting these streams. was obviously intended to prevent 00-
Further, the plaintiffs contend that they structions in the Nation's waterv.·ays.
are aggrie\'ed parties entitled to seek in- Despite some difficulties with the
junctive relief since they are corpora- wording of the Act, we have consist-
tions existing primarily for the purpose ently found its coverage to be broad.
of conserving rivers and streams for the (cases cited)
benefit of the public generally and In both the Republic Steel case and the
sportsmen in particular. Wyandotte case the argument was ad-
Two issues require decision by the vanced that congressional authorization
Court upon this phase of the action. for injunctive relief under certain sec-
First, whether injunctive relief is prop- tions of the Act indicate a congressional
er or appropriate pursuant to §§ 407 and intent that such extraordinary relief is
411. Second, assuming that injunctive appropriate only in those circumstances
relief is permissible, whether the plain- where specifically authorized and in no
tiffs in this lawsuit have a sufficient in- other. The Supreme Court answered
terest to seek injunctive !'elief, that is, this argument in the context of § 10 of
whether these particular plaintiffs have the Act by stating:
standing to secure an injunction against Congress has legislated and made its
the actions herein complained of. purpose clear; it has provided enough
[l1J Returning to the first question.
being the propriety of injunctive relief
for alleged \' iolations of § ' 407, the re-
cent case United States of America v.
Florida Power & Light Company, 311
F.Supp. 1391 (S.D.Fla., 1970) holds that
"case law interpretation of Section 13,
although arguable, endows [theJ Court
with the authority to issue injunctive
relief for its violation." This conclusion
finds support in two Supreme COU!·t cas-
es dealing with civil relief under .the
"Refuse Act," being, United States of
America v. RepUblic Steel Corp., 362 U.S.
482, 80 S .Ct. 884, 4 L.Ed.2d 903 (1960)
reh. den. 363 U.S. 858, 80 S.Ct. 1605, 4
L.Ed.2d 1739 and Wyandotte Transpor-
tation Company v. United States. 389
U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407
(1967). The teachi ng of these cases is
federal law in § 10 from which appro-
priate remedies may be fashioned even
though they rest on inferences. Oth-
erwise we impute to Congress a futili-
ty inconsistent with the great design
of this legislation.
The Supreme Court in the Republic
Steel case did however clearly state that
§ 13 of the Act was likewise to be ac-
corded a broad interpretation:
The philosophy of the statement of
Mr. Justice Holmes in New Jersey v.
New York. 283 U.S. 336, 342, 51 S.Ct.
478, 479. 75 L.Ed. 1104, 1106, that,
"A rinr is more than an amenity, it is
a treasure," forbids a nano\\'.
cramped reading either of § 13 or of §
10.
Although the RepUblic Steel case in-
volved interpretation of § 10 of the Act
348
329 FEDERAL SUPPLEMENT
and the Wyandotte case was concerned
with available remedies under § 15 of
the Act, the principles of both cases
clearly favor and authorize the use of
injunctive relief, at least upon applica-
tion by the United States to prohibit vi-
olation of § 13 of the Act. See also
Sanitary District v. United States, 266
U.S. 405, 45 S.Ct. 176, 69 L.Ed. 352
(1925); United States v. San Jacinto
Tin Company, 125 U.S. 273, 8 S.Ct.. 850,
31 L.Ed. 747 (1888). This conclusion is
well founded for as noted in the Wyan-
dotte case, "* * * we have found that
a principal beneficiary of the Act, if not
the principal beneficiary, is the Govern-
ment itself." Under these circumstances,
it appears clear that this Court has au-
thority to grant injunctive relief for vio-
lation of § 13 (33 U.S.C. § 407) of the
Rivers and Harbors Act of 1899.
[12; 13J Turning to the second issue,
whether the plaintiffs in the instant
case have standing to seek injunctive re-
lief in this case, the simple answer is
that they do not. The following quota-
tion from Carolina Power and Light Co.
v. Sou th Carolina Public Service A uthor-
ity, 94 F.2d 520 (4th Cir . 1938) cert.
den. 304 U.S. 578, 58 S.Ct. 1048, 82 L.
Ed. 1541, offers the most concise reason
for this conclusion:
"* * * [IJt is perfectly well set-
tled that any unlawful obstruction of
a navigable stream or a public h i g h ~
way is a matter for the public author-
ities, not a matter of which private
individuals may complain, unless they
suffer some direct and special injury
to their rights not common to the pub-
lic. (cases cited) And, with respect to
obstruction of navigable waters, provi-
sion is expressly made by federal stat-
ute for the Attorney General of the ·
United States to institute proceedings
for the removal of such obstruction,
30 Stat. 1151, as amended 33 U.S.C.
A. § 406.
See also Northern P. R. Co. v. Whalen,
149 U.S. 157, 13 S.Ct. 822, 37 L.Ed. 686;
Georgetown v. Alexandria Canal Co., 12
Pet. 91, 37 U.S. 91, 9 L.Ed. 1012; Pacif-
ic Inter-ClUb Yacht Association v. H. A.
Morris, 197 F.Supp. 218 (N.D.Cal.
1960); Chitwood v. South Carolina
Electric & Gas Co., 51 F.Supp. 486 (E.
D.S.C.1943); 39 Am.Jur., "Nuisances" §
123 et seq. The general rule is clear
therefore that private individuals have
no standing to champion the rights of
the public except where such private in-
dividual suffers some special injury or
damage.
This lawsuit concerns alleged impair-
ment and pollution of the waterways of
the United States, specifically, in the
State of Tennessee. The plaintiffs rest
their case and their right to relief upon
the Rivers and Harbors Act of 1899 and
specifically the "Refuse Act" [33 U.S.C.
§ 407J therein contained. As noted in
the Wyandotte case: "The Rivers and
Harbors Act of 1899, an assertion of the
sovereign power of the United States
(cases cited) was obviously intended to
prevent obstructions in the Nation's wa-
terways." The Federal Government,
pursuant to Article I § 8 of the Consti-
tution, is responsible for overseeing and
protecting channels of commerce includ-
ing navigable waterways. The Rivers
and Harbors Act of 1899 is a statutory
assumption of that responsibility by
Congress. Section 413 of that Act vests
the Department of Justice with the re-
sponsibility of conducting those legal
proceedings necessary to enforce the
. provisions of the "Refuse Act." The al-
legations of the complaint herein reflect
that the plaintiffs, as private parties,
are concerned with the preservation of
the Nation's waterways and of the fish
and wildlife that are indiginous to these
waterways.
The plaintiffs' as special interest
groups, may indeed conceive of their in-
terest in conservation and the alleged
pollution of our waterways as a special
injury. However, the destruction or im-
pairment of our environment, through
water and/ or other forms of pollution, is
a blight upon the Nation and not merely
the concern of special interest groups
such as the plaintiffs. Technical profi-
ciency and progress has had an unex-
pected and unwanted byproduct, ecologi-
BASS ANGLERS SPORTSMAN'S SOC. v. SCHOLZE TANNERY, INC. 349
Cite as F.Supp. 33!) (1971)
cal erosIOn. The extent of this erosion guage which requires either the Secre-
is not fully known at this point in time. tary of the Army or the Director of the
But, realization by man that he is slowly Corps of Engineers to establish such
but certainly destroying not only the standards and issue permits pursuant to
aesthetics of his environment, but the these standards. Section 407 of the Act
life sustaining capacity of that environ- doe;> provide that:
ment has caused a public outcry that
sounds world wide. Human response to
this impending disaster has manifested
itself through legislation, executive fiat,
consideration by the judiciary and, most
importantly, through the response of the
citizens of the Nation in the reassess-
ment of and the reaction to the treat-
ment accorded the environment. Under
these circumstances, it is clear to this
Court that the plaintiffs, as private citi-
zens, have no special standing under the
Rivers and Harbors Act which would
permit them to seek injunctive relief
against the Group A defendants in lieu
of appropriate governmental officials or
agencies. The plaintiffs' concerns and
motivation in seeking this relief is in-
separable from the concerns of the gen-
eral public. Likewise, the injury and
damage sustained by the plaintiffs in
the instant case is indistinguishable
from the inj ury and damage suffered by
the public at large.
Additionally, the plaintiffs seek the
following injunctive relief against the
Group B defendants:
A) A permanent injunction requIring
said defendants to establish stand-
ards for the issuing of permits al-
lowing the dumping of refuse into
navigable water\\'ays and tributar-
ies of navigable waterways in the
State of Tennessee; and
B) A permanent injunction requIring
said defendants to apply said
standards, and formulated to any-
one desiring to dump refuse into
those navigable Tennessee water-
ways protected by 33 U.S.C. §§
407 and 41l.
The Rivers and Harbors Act of 1899 (33
U.S.C. §§ 401 et seq.), and more specifi-
cally, the "Refuse Act," contain no lan-
The Secretary of the Army, whenever
in the judgment of the Chief of Engi-
neers * * * may permit the de-
posit of any material above mentioned
in navigable waters, within limits to
be defined and under conditions pre-
scribed by him, provided application is
made to him prior to depositing such
material
* *
Additionally, § 419 authorizes the Secre-
tary of the Army to develop such a per-
mit system. In relevant part, this stat -
ute provides:·
The Secretary of the Army is autho-
rized and empowered to prescribe' reg-
u la tions to govern the transportation
and dumping into any navigable wa-
ter, or waters adjacent thereto, of
dredgings, earth, garbage, and other
refuse materials of every kind or de-
scription, whenever in his judgment
such regulations are required in the
interest of navigation.
These statutes clearly indicate that the
development and implementation of a
permit system by the Secretary of the
Army and the Chief of Engineers is dis-
cretionary as opposed to mandatory.
The . relief sought in this phase of the
action is in the nature of mandamus to
compel the Secretary of the Army
and/or the Chief of Engineers to estab-
lish and apply standards for the issu-
ance of permits allowing the deposit of
refuse in navigable waters.
[14-16] The writ of mandamus is an
extraordinary writ and prior to its issu-
ance , the party requesting it must estab-
lish that he has a clear and certain right
and that the duties of the defendant are
plainly defined and See Al -
bert v. United States District Court, 283
F .2d 61 ( 6th Cir. 1960) cert. den. 365
U.S. 828, 81 S.Ct. 713, 5 .L.Ed .2d 706,
-.- , , -. ..... "••>_•• .
' . .
350
329 FEDERAL SUPPLEMENT
and cases cited. Simply stated, manda-
mus is proper to command an official to
perform a ministerial or non-discretion-
ary act, United States v. Walker, 409 F.
2d 477 (9th Cir. 1969), but not appro-
priate to require an official to perform
some discretionary act. This Court is
without authority to require the Secre-
tary of the Army or the Chief of Engi-
neers to take any action which they have
discretion to perform or not perform as
they may determine. See McWhorter v.
Kennedy, 324 F.2d 793 (8th Cir. 1963);
Hudgins v. Circuit Court of Chesapeake,
Va., 294 F.Supp. 258 (E.D.Va.1968);
Commonwealth of Massachusetts v. Con-
nor, 248 F .Supp. 656 (D.Mass.1966)
aff'd per curiam 366 F.2d 778 (1st Cir.
1966 ).
It is clear under the applicable law
. and the statutes in the instant case that
this Court has no' authority to direct the
Secretary of the Army or the Chief of
Engineers to set standards for the issu-
ance of permits or to require the issu-
ance of permits. See Wilbur v. United
States ex reI. Kadrie, 281 U.S. 206, 50 S.
Ct. 320, 74 L.Ed. 809.
The plaintiffs have moved to amend
the complaint to join the Department of
Justice as a party defendant and to re-
quest a writ of mandamus requiring the
Department of Justice to perform man-
datory duties imposed by 33 U.S.C. §
413, speCifically, to join the plaintiffs in .
the prosecution of this action.
[17J As the Court has heretofore ob-
served, the discretion of the Attorney
General in choosing whether to prose-
cute or not to prosecute criminal viola-
tions is absolute and mandamus will not
lie to control the free exercise· of this
discretion. Likewise insofar as the
plaintiffs are seeking an order upon the
Department of Justice to require them
to join with the plaintiffs in seeking in-
junctive relief for violation of § 13 (33
U.S.C. § 407) of the Rivers and Harbors
Act of 1899, mandamus will not lie. Al-
though 33 U.S.C. § 413 provides that
"the Department of Justice shall conduct
the legal proceedings necessary to en-
force the provisions of sections * * *
407 * * * 411 of this title" and al-
though, as the Court has heretofore
held, injunctive relief is one tool availa-
ble for enforcement of the Act, there is
no mandatory duty or obligation upon
. the Department of Justice to seek either
a criminal or a civil remedy. Rather,
these are matters of discretion and the
Court is without 'authority to direct the
Department of Justice to join the plain-
tiffs in seeking injunctive relief for al-
leged violations of the Rivers and Har-
bors Act of 1899.
[18,19J FinalIy, since the plaintiffs
do not premise their cause of action
against these government officials upon
28 U.S.C. § 1361 and since HIe Court has
heretofore concluded that relief in the
nature of mandamus is not proper, the
Court is further of the opinion that it
lacks jurisdiction over the Group B de-
fendants, since this suit is in reality an
action against the sovereign to which it
has not consented and does not fall with-
in either of the recognized exceptions to
the doctrine of sovereign immunity,
being 1) action by officers beyond their
statutory powers, and 2) even though
within the scope of their authority, the
powers themselves or the manner in
which they are exercised are constitu-
tionally void. See Dugan v. Rank, 3/2
U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15,
(1963); Larson v. Domestic & Foreign
Commerce Corp, 337 U.S. 682, 93 L.Ed.
1628, 69 S .Ct. 1457, (1949); Malone v.
Bowdoin, 369 U.S. 643, 82 S.Ct. 980, 8
L.Ed.2d 168 (1962) . For the reasons
hereinabove stated, this lawsuit will ·
stand dismissed as to all parties defend-
ant. An order wiIl enter accordingly.
EXHIBIT 6
EXHIBIT 6
ATTACHMENT TO:
SELF-EXECUTING AFFIDAVIT OF
PAUL BENTON WEEKS III
[28 U.S.C. § 1746]
302
324 FEDERAL SUPPLEMENT
BASS ANGLERS SPORTSMAN'S SO-
CIETY OF A.l\-IERICA et aL
v.
U. S. PLYWOOD-{;HAMPION PAPERS,
INC., et al.
C. A. No.
United States District Court,
S. D. Texas,
Houston Division.
Feb. 10, 1971.
Action by private parties seeking
injunctive relief and damages from a
number of alleged industrial polluters of
waterways, and also naming as defend-
ants the Secretary of the Army and the
Chief of the Army Corps of Engineers.
The District Court, Seals, J., held that
private parties could not take it upon
themselves to obtain convictions under
statutes relating to deposit of refuse in
navigable waters since such statutes
were solely criminal statutes, and suit
could not be maintained as a qui tam ac-
tion on ground that one-half of fine im-
posed for violating statute '.vas to
be paid to persons giving information
leading to conviction, which allegedly
showed that there was congressional au-
thorization of qui tam action to enforce
the statute, since there was no statutory
authority, either express or implied, per-
mitting an informer to bring the qui
. tam. actWn. .
Judgment accordingly.
1. Constitutional Law e:>73
District and Prosecuting Attorneys

In the exercise of responsibility of
Department of Justice for prosecution of
federal crimes, neither private citizens,
the legislature nor the judiciary may in-
terfere.
2. Navigable Waters <$=>35
Private parties could not take it
upon themselves to obtain convictions
under statutes relating to deposit
of refuse in navigable waters since such
statutes were solely criminal statutes,
and suit · could not be maintained as a
qui tam action on ground that one-half
. of fine imposed for violating statute was
to be paid to persons giving information
leading to conviction, which allegedly
showed that there was congressional au- .
thorization of qui tam action to enforce
the statute, since there was no statutory
authority, either express or implied, per-
mitting an informer to bring the qui
tam action. Rivers and Harbors Appro-
priation Act of 1899, §§ 13, 16, 17, 33
U.S.C.A. §§ 407, 411,413.
3. Navigable Wat.ers e:>35
. Private parties bringing suit under
statutes relating to deposit of refuse in
navigable waters could not compel Secre-
tary of Army and Chief of Army Corps
of Engineers to set standards to require
permits under the provisions of such
statutes where there was no statutory
mandate requiring such officers to de-
velop and implement a set of pollution
standards governing emissions into navi-
gable waters; while statute providing
for regulation by Secretary of transpor-
tation and dumpings of dredgings and
refuse into navigable waters may pro-
vide adequate authority for Secretary to
develop and implement general standards
for a permit system, it in no manner
commands him to do so. Rivers and
Harbors Appropriation Act of 1899, §§
13, 16, 33 U.S.C.A. §§ 407, 411; 33 U.S.
C.A. § 419. ' .
4. United states C=>125(30)
Court lacked jurisdiction over Sec-
retary of Army and Chief of Army
Corps of Engineers since, unless acting
illegally under statu tory au thori ty vest-
ed in them, or unless statutes under
which they were acting were unconstitu-
tional, these governmental officers, as
agents and officers of United States,
were protected by doctrine of sovereign
immunity, and plaintiffs made no mate-
rial allegation that these officers exceed-
ed their authority and did not seek to
have statutes under which they were
acting declared unconstitutional.
..•.."
BASS ANGLERS SPORTS. SOC. v. U. S. PLYWOOD-CHAMPION PAPERS 303
Cite as 321 F.Supp. 302 (1971)
L. A. Greene, Jr., Houston, Tex., for
plaintiffs.
C. E. Nadeau, Legal Dept. , Shell
Chemical Co., Ben H. Rice, Vinson, Elk-
ins, Searls & Smith, Kenneth R. Wynne,
Joe Jaworski, Bracewell & Patterson,
Houston, Tex., Robert W. Alexander,
McCleod, Alexander, Powel & Apffel
Galveston, Tex., Jack Shepherd, Asst. U.
S. Atty., Houston, Tex., F. William Col-
burn, Asst. City Atty., City of Houston,
Houston, Tex., Levin & Dees, Montgom-
ery, Ala., G€orge Rice, Butler, Binion,
Rice, Cook & Knapp, Houston, Tex., for
defendants.
MEMORANDUM AND ORDER
SEALS, District Judge.
With the rarest of exceptions, the
progress of man has been tarnished by
the gradual degradation of his ecological
environment. Our surroundings have
been subjected to a continuous effluent
of pollutants; scenic and recreational
resources have been blighted and de-
spoiled-in many instances, obliterated;
species have been ignominiously driven
}nto extinction,while a growing number
of other endangered. species await the
same fate. Only recently has man be-
gun to appreciate the extent of the dam-
age he has wrought by his irresponsible
tampering with the interdependent com-
plex of climatic, edaphic and biotic pro-
cesses that act upon all organisms, and
ultimately determine their form and
survival. There is a growing realization
that the ecological scales are in danger
of being so uncontrollably tipped, if they
have not already been so disturbed, that
all life forms, including man, the archi-
tect of this destruction, will perish.
This envi ronmen tal crisis has generated
popular demand that the accelerating
trend of environmental degradation be
abated and, where feasible, reversed.
The efforts of most private citizens
concerned with the preservation of envi-
ronmental quality have been directed to-
ward the legislative and executive
branches of federal, state and local gov-
ernments including the myriad of rele-
vant administrative agencies. But many
environmentalists, dissatisfied with the
efforts of these governmental bodies,
have sought judicial relief, oftentimes
instituting suit against the very govern-
mental agencies charged with the re-
sponsibility of protecting the interests
of the public in these matters. Such is
the nature of the present suit.
The plaintiffs, Bass Anglers Sports-
man's Society of America, describing it-
self as a' society composed of some 11,- '
000 members, and the Baytown Bass
Club, describing itself as an organiza-
tion in Baytown, Texas, are special in-
terest groups apparently dedicated to
achieving the abatement of water pollu-
tion. Seeking injunctive relief, as well
as damages, plaintiffs have instituted
this civil suit against a number of al-
leged industrial polluters of Texas water-
ways and against the Secretary of the
Army and the Chief of Engineers of the
U. S. Army Corps.
The legal theories presented by the re-
cent surge of environmental quality
suits have been quite diverse, ranging
from grandiose claims of the right of
the general populace to enjoy a decent
environment [e. g. Environmental De-
fense Fund, Inc. v. Hoerner Waldorf,
Civil No. 1694 CD.Mont. filed Nov. 13,
1968); Fairfax County Fed'n of Citi-
zens Ass'ns v. Hunting Towers Operat-
ing Co., Civil No. 4963-A CE.D.Va., filed
Oct. 1, 1968) J, an embryonic concept
which perhaps offers environmentalists
the greatest promise (see, note, 56 Vir-
ginia L.Rev. 458 (1970), to less ambi-
tious and more narrow assertions that
the citizenry can obtain judicial direc-
tio)1 that governmental agencies meet
procedural requirements. E. g., D.C.
Federation of Civic Associations, Inc. v.
Airis, 129 U.S.App.D.C. 125, 391 F.2d
478 (1968) (failure to have public hear-
ings) . One commentator has suggested
that only the public trust doctrine has
the "breadth and substantive content
which might make it useful as a tool of
general application for citizens seeking
to develop a comprehensive legal ap-
proach to resource management prob-
304
324 FEDERAL SUPPLEMENT
lems." Sax, The Public Trust Doctrine
in Natural Resource Law: Effective Ju-
dicial Intervention, 68 Mich.L.Rev. 471,
474 (1970) . . The legal theory of the
plaintiffs in the present suit is that they
have the right to prosecute a qui ta7n ac-
tion pursuant to Sections 407 and 411 of
Title 33, U.S.C .. to obtain an injunction
prohibiting the industrial defendants
from dumping refuse into Texas water-
ways without a permit in violation of §
407, to obtain penalties provided by §
411 for each such violation of § 407, and
. to obtain an injunction requiring de-
fendant Stanley R. Resor, Secretary of
the Army, and defendant Frederick J.
Clark, Chief of Engineers, United States
Army Corps of Engineers, to establish
standards for the issuing of permits al-
lowing the dumping of refuse into navi-
gable waterways and tributaries of navi-
gable waterways in the State of Texas
and to apply these standards, once for-
mulated, to anyone desiring to d ~ m p
refuse into those navigable Texas water-
ways protected by 33 U.S.C. §§ 407 and
411. The plaintiffs have stated their
cause of action no broader than §§ 407
and 411 of Title 33. U.S.C. Thus, plain-
tiffs must establish that they may. by
this civil action, sue to enforce sections
407 and 411, or else the action must be
dismissed for failure to state a claim
upon which relief can be granted.
Section 407 of Title 33, U.S.C .. is a
part of the Rivers & Harbors Act of
1899 [March 3, 1899.c. 425, §13. 30
Stat:. 1152], and its provisions are as
follows:
It shall not be lawful to throw, dis-
charge, or deposit. or cause, suffer, or
procure to be thrown, discharged, or
deposited either from or out of any
ship, barge, or other floating craft of
any kind, or from the shore, wharf,
manufacturing establishment, or mill
of any kind, any refuse matter of any
kind or description whatever other
. than that flowing from streets and
sewers and passing therefrom in a liq-
uid state, into any navigable water of
the United States, or into any tribu-
tary of any navigable water from
which the same shall float or be
washed into such navigable water;
and it shall not be lawful to deposit,
or cause, suffer, or procure to be
deposited material of any kind in any
place on the bank of any navigable
water, or on the bank of any tributary
of any navigable water, where the
same shall be liable to be washed into
such navigable water, either by ordi-
nary or high tides, or by storms or
. floods, or otherWise, whereby naviga- ·
tion shall or may be impeded or ob-
structed: Provided,· That nothing
herein contained shall extend to, apply
to, or prohibit the operations in
connection with the improvement of
navigable waters or construction of
public works, considered necessary
and proper by the United States offi-
cers supervising such improvement or
public work :· And provided further,
That the Secretary of the Army,
whenever in the judgment of the
Chief of Engineers anchorage and
navigation will not be injured thereby,
may permit the deposit of any materi-
al above mentioned in navigable wa-
ters, within limits to be defined and
under conditions to be prescribed by
him, provided application is made to
him prior to depositing such material;
and whenever . any permit is so grant-
ed the conditions thereof shall be
strictly complied with. and any viola-
tion thereof shall be unlawful.
Section 411 of Title 33, U .S.C., pro-
. vides for the following penalties fO'r vio-
lations of section 407:
Every person and eVery c<;>rporation
that shall violate, or that shall know-
ingly aid, abet. authorize, or instigate
a · violation of the provisions of sec-
tions 407, 408, and 409 of this title
shall be guilty of a misdemeanor, and
on conviction thereof shall be pun-
ished by a fine not exceeding $2,500
nor less than $500, or by imprison-
ment (in the case of a natural person)
for not less than thirty days nor more
than · one year, or by both such fine
and imprisonment, in the discretion of
the court, one-half of said fine to be
.... , . ~ ........ ,.,., ...... -...... ,", . ". ..... .
. '.
BASS ANGLERS SPORTS. SOC. v. U. S. PLYWOOD-CHAMPION PAPERS 305
Cite liS 32-1 F.Supp. 302 (197l)
paid to the person or persons giving
information which shall lead to convic-
tion.
Section 413 of 33 U.S.C. provides that
"[t]he Department of Justice shall con- .
duct the legal proceedi ngs necessary
to enforce the provisions of sections
* * -II- 407 * * * 411 * * *
of this title; and it shall be the duty of
United States attorneys to vigorously
prosecute ... * *."
Clearly, §§ 407 and 411 are solely
criminal statutes. Section 411 makes
the acts proscribed in § 407 ".misde-
. meanor" offenses and provides that
upon "conviction" of such offense the
convicted person or corporation shall be
"punished" by "fine" or "imprisonment."
See, Shipman v. United States, 309 F.
Supp. 441 (D.C.E.D.Va.1970). Nothing
in these statutes intimates that a civil
enforcement procedure is authorized.
Under these circumstances, these sections
cannot be enforced by a civil action.
United States v. Clafiin,97 U.S. 546, 24
L.Ed. 1082 (1878).
. [1, 2J Section 413, Title 33. U.S.C.,
provides that the Department of Justice
"shall conduct the legal proceedings nec-
essary to enforce the provisions of sec-
tion ... * ... 407". No room remains
for implying that any others may sue to
enforce these statutes. In the exercise
of its responsibility for the prosecution
of federal crimes, neither private citi-
zens, the legislature nor the judiciary
may interfere. E.g., United States v.
Cox, 342 F.2d 167 (5th Cir. 1965);
Smith v. United States, 375 F.2d 243
(5th Cil'. 1967). Thus, plaintiffs may
not take it upon themselves to obtain
convictions under §§ 407 and 411.
The plaintiffs' theory of course is that
they may maintain the suit under §§ 407
and 411 as a qui tam. action. A qui tam.
action, or action by common informer, .
has been defined as a civil proceeding
brought "under a statute which imposes
a penalty for the doing or not doing an
act, and gives that penalty in part to
324 F.Supp.-20
whomsoever will sue for the same, and
the other part to the commonwealth, or
some charitable literary, or other insti-
tution, and' make it recoverable by ac-
tion." Bouvier's Law Dictionary (3d
ed). The action's appellation comes
from the Latin phrase "qui tam pro
domino rege quam pro se imposo sequi-
tur," meaning "who brings the action as
well for the king as for himseli." In
1905 the Supreme Court of the United
States observed in Marvin v. Trout,
199 U.S. 212, 225, 26 S.Ct. 31, 34, 50 L.
Ed. 157 that:
Statutes providing' for actions by a
common informer, who himself had no
interest whatever in the controversy
other than that given by statute, have
been in existence * * * in this
country ever since the foundation of
our government.
In 1943 the Court again recognized that
"Qui tam suits have been frequently
permitted by legislative action -II- -II- +:-"
United States ex reI. Marcus v. Hess.
317 U.S. 537, 541 63 S.Ct. 379, 383, 87
L.Ed. 443. Plaintiffs have cited a num-
ber of federal statutes which presently
authorize qui tam. proceedings by the
common informer.
The plaintiffs assert that the provi-
sion in § 411 that one-half of the fine
imposed for violating § 407 is "to be
paid to the person or persons giving in-
formation which shall lead to convic-
tion" is to be understood as a Congres-
sional authorization of qui tam actions
to enforce the Act. Although § 411 does
not specifically authorize the qui tam ac-
tion, plaintiffs argue that it. does not
specifically deny the action either and
under these circumstances. should be con-
strued to impliedly authorize such a
suit. Plaintiffs cite Justice Black's dic-
tum in United States ex reI. Marcus v.
Hess, 317 U.S. 537, 541, fn. 4, 63 S.Ct.
383, wherein he stated:
Statutes providing for a reward to in-
formers which do not specifically ei-
ther authorize or forbid the informer
306
324 FEDERAL SUPPLEMENT
to institute the [qui tam] action are
construed to authorize him to sue.
Justice Black's dictum would appear
to state the law too broadly. The qui
tam action depends entirely upon statu-
tory authorization, as it has never found
its way into the common law. The ac-
tion arises only upon a statutory grant.
The fact that someone is entitled by
statute to share in some penalty or for-
feiture does not · necessarily also give
such person the right to bring anorigi-
nal action to recover such penalty or for-
feiture. There must be statutory au-
thority; either express or implied, for
the informer to bring · the qui tam ac-
tion. When the statute is silent as to
whether the qui tam action is autho-
rized, . and nothing can be gleaned con-
cerning congressional intent from the
circumstances surrounding the passage
of the statute then perhaps Justice
Black's construction in favor of the qui
-tam action may be justified in many in-
stances. But Black's construction ob-
viously is inappropriate whenever the
statute's language, by necessary implica-
tion, precludes such a conclusion.
The Rivers and HFbors Act of 1899
contains no express statutory authority
for the qui tam action. To the contrary.
the language of § 411 of the Act by nec-
essary implication rules out the qui tam
proceeding, for the statute provides that
the informer is entitled to part of the
fine only upon the conviction of the per-
son or corporation accused of violating §
407. Without such a conviction, no fine
can be imposed in which the informer
can share. The informer's rights de-
pend upon (1) a criminal proceeding
being brought under § 411; (2) a con-
viction being obtained in the criminal
proceeding; and, (3) the convicting
court imposing the fine as punishment
for the offense. The informer's rights
therefor are en tirely dependent upon
and inseparable from the criminal pro-
ceeding brought by the Department of
Justice, the party authorized to institute
such suit. Clearly, then, the qui tam
civil action is not authorized.
[3] Nor may plaintiffs proceed in
this suit to compel the Secretary of the
Army and the Chief of Engineers, Unit-
ed States Army Corps of Engineers, to
set standards to require permits under
the provisions of 33 U.S.C. § 407. The
"Refuse Act" contains no statutory man-
date which requires these defendants to
develop and implement a set of pollution ·
standards governing emissions into the
navigable waters. Section 407 states
that the Secretary of the Army, when
the Chief of Engineers is in agreement,
may permit the deposit of refuse into
navigable waters, within limits to be de-
fined and under conditions to be pre-
scribed by him. There is no implication
that the Secretary of the Army or Chief
of Engineers must act except when a
permit has been applied for, and then it
is clear that the conditions to be pre-
scribed are to relate only to the particu-
lar permit for which the applicant seeks.
Section 419 of Title 33, U.S.C., does spe-
cifically refer to § 407 and authorizes the
Secretary of the Army to develop a per-
mit system. The relevant portions of §
419 are as follows :
The Secretary of the Army is autlw-
rized and empowered to prescribe
regulations to govern the transporta-
tion and dumping into any navigable
water, or waters adjacent thereto, of
dredgings, earth, garbage, and other
refuse materials of every kind or de-
scription, whenever in his judgment
such regulations are required in the
interest of navigation.
Emphasis added.
Although § 419 is adequate authority
for the Secretary of the Army to devel-
op and implement general standards for
a permit system, it in no manner com-
mands him to do so. His decision as to
whether or not to promulgate such regu-
lations must be considered discretionary.
Because the Secretary of the Army and
the Chief of Engineers, United States
Army Corps of Engineers, have no legal
duty to set comprehensive standards and
require permits under the provisions of
.......... _-,,-..... .. .. ,., ...... . .
UNITED STATES v. SARS OF LOUISIANA, INC.
307
Cite as 324 F.Supp. 30. (1971)
§ 407, this court has no authority to di-
rect them to do so. McWhorter v. Ken-
nedy ex reI. Settle, 324 F.2d 793 (8th
Cir. 1963); Hudgins v. Circuit Court of
Chesapeake, Virginia, 294 F.Supp. 258
(E.D.Va.1968). Accordingly, the plain-
tiffs have stated no claim against these
two governmental officials upon which
relief can be granted.
[4J The court is also persuaded that
it lacks jurisdiction over the person of
the two governmental defendants named
in this suit. Unless acting illegally un-
der the statutory authority vested in
them, or unless the statutes under which
they are acting are unconstitutional,
these governmental defendants, as agents
and officers of the United States of
America, are protected by the doctrine
of sovereign immunity. Dugan v. Rank,
372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15
(1963); Malone v. Bowdoin, 369 U.S.
643, 82 S.Ct. 980, 8 LEd.2d 168 (1962).
Plaintiffs make no material allegation
that these governmental officers exceed-
ed their authority and, of course, do not
seek to have the statutes under which
they are acting declared unconstitu-
tional.
The question posed earlier-whether
plaintiffs may by this civil action sue to
enforce §§ 407 and 411 of Title 33, U.S.
C.-having been answered in the nega-
. tive, it must also be concluded that ·
plaintiffs have failed to state a claim
upon which relief may be granted. For
. this reason, and because the court lacks
jurisdiction over the Secretary of the
Army and the Chief of Engineers, Unit-
ed States Army Corps of Engineers, the
case must be dismissed. Sections 407
and 411 of Title 33, U.S.C., may not, in
their present form, be added to the pub-
lic's growing arsenal of judicially recog-
nized causes of action in its continuing
struggle to obtain the abatement and re-
versal of environmental degradation by
court action. The court so orders.
Counsel for defendants are directed to
SUbmit an appropriate judgment.
UNITED STATES of America
v.
SARS OF LOUISIANA, INC., Gulf Soap
Corporation, George F. Theobald, Felix
R. Sapp, and Arnold Q. Ford.
Civ. A. No. 71-6.
United States District Court,
E. D. Louisiana,
Baton Rouge Division.
March 30, 1971.
Suit to restrain violations of Feder-
al Food, Drug, and Cosmetic Act. The
District Court, West, C. J., held that the
evidence established that defendants had
cured all of deficiencies which existed in
their animal food processing plant and
that there was no reason to expect that
they would commit violative acts in the
future.
Judgment accordingly.
1. Injunction <§:::>128
Evidence established that all of rec-
ommendations made by inspectors had
been carried out and that defendants
had made their animal food processing
plant a "safe" plant for production of
uncontaminated food products. Federal
Food, Drug, and Cosmetic Act, §§
301(a), 302(a), 21 U.S.C.A. §§ 331(a),
332(a) .
2. Injunction <&=>22
Injunction could issue if it was rea-
sonable to expect that defendants would
commit violative acts in future, despite
discontinuance of such illegal conduct at
time injunction was sought. Federal
Food, Drug, and Cosmetic Act, §§
201(f), 402(a) (1), 21 U.S.C.A. §§
321(f), 342(a) (1).
3. Injunction <&=>128
Evidence established that there was
no reason to believe that defendants
would commit in future acts violative of
Federal Food, Drug, and Cosmetic Act.
Federal Food, Drug, and Cosmetic Act,
§§ 301(a), 302(a), 21 U.S.C.A. §§ 331
(a), 332(a).
EXHIBIT 7
EXHIBIT 7
ATTACHMENT TO:
SELF-EXECUTING AFFIDA VIT OF
PAUL BENTON WEEKS III
[28 U.S.C. § 1746}
NOV.- DEC. '1974
I
M8STEH®
MaGaZINE
'. - ..... -... . ('. . _ .
'.::' . ". . - - . ~ .
Tournament Trail
John Farr Wins
Clark Hill Finals
• John Farr, a 35-year old Anderson,
S.c. music store operator, didn't have
the slightest idea about making the
Miller High Life BASS Masters Classic
when he entered the All-American
Tournament at Clark Hill Reservoir
Sept. 25 -27, near McCormick, S"c. '
His track record in national tourna-
ments was unimpressive to say· the least.
"Two years ago at Lake Kissimee in
. the Florida National, I didn'tget to make
a cast. My boat sank in rough water,"
Farr recalled.
"The next year in the Florida
tional, I was at the right place at the
wrong time,"· he said . Farr believes he
located the area in Rodman Pool where
Larry Hill caught 60 pounds of
bass In 60 minutes , but the school
moved in after Farr departed.
Farr figured his luck might improve
on a neighborhood lake, but he sold his
boat. The Farr family was busy building ·
a new home. A .friend loaned him a
boat. .
At the first at Hickory
Knob State Resort Park, Farr ranked
sixth in the field of 163. His ten bass
limit was 8 Ibs .. 3 oz . shy of leader Bill
Dance's 23-15.
. The next day, Farr climbed to fifth
with another limit and a two-day 25-8
score.
.Danny Whaley, a 28-year old
raIlroad .engineer from Abbeville, S.c.,
seemed In. the driver's seat with a rwo-
day creel of 37 -\. He had apparently
cornered the. fish on. a ledge along the
old Savannah River channel.
To everyone's surprise, Whaley and
tournament favorite Dance of Memphis,
Tenn: located very few fish in the finals .
AI Lindner, who had limited twice and
ranked second, failed to boat a keeper
12-inch bass. '
Farr had a 6 lb. 14 oz: largemouth.
He ended up with eight bass and 16 Ibs.
2 oz. at the final weigh-in. His 4 [ Ibs.
10 ozs. gave a [ lb. 3 oz. edge over
who could manage only two
. bass (3-6). Dance dropped to sixth
(33- [ [), and Lindner faded to ninth
(3[-7).
. "Ididn't have the slightest idea about
said parr. "My hope was that
It would be enough .tostay in the top
ten. "
6
Farr said , "I fish Clark H ill the
(Continued on page 74)
SCOTl

on the
By RAY SCOTT
Jan. I, 1975, mem-
bershIp in BASS will go from $10 to
$12 per year. This is a decision we have
making, and tried to avoid.
Tremen'dous cost increases, in every
phase of membership services, have
forced the decision.
Our goal been, and will con-
tinue to be, top quality BASSMASTER
Magazines and member services. BASS
is the finest organization of its t)1>e, and
we won't sacrifice your benefits and en-
by haphazard Iy slicing away
pIeces of the pie.
The cost of magazine publishing
has skyrocketed at an unbelieyable rate ·
Paper COSls alone for BASSMASTER
have increased 67%, since October
1970. Mailing costs jumped 57% in a
three-year span. The U.S. Post Office
has more uppercuts for staggering
publtshers. post office has imp[e-
mented step Increases that will escalate
postage costs 127% between January
1974 and July 1976. .
Many. alternatives to raising dues
were conSidered. We could eliminate
the "Tackle Test" program for renewing
members. A majority of the lure compa-
ny advertising space you see on these
pages is purchased In lures - not dol-
lars. From the letters and commentS
indicated that BASS
enJoy thIS cast" opportunity with
new lures: ThIS IS also a unique program
tackle manufacturers with
inSIde lOformation about bass fisher-
men's ideas and tackle needs . .
Another alternative suggested was
to reduce the number of pages from 96
to. 80. and eliminate the four-color
edltonal coverage. This is a route some
publications have· taken. It was tempt-
Ing. The cost of print i ng a single issue
of BASSMASTER (this does not cover
postage, composition, story-photo fees
etc.) has increased 52.4% . '
To me, thi s would have cut the
out of BASS. Instead of sacrific-
Ing BASSMASTER, it was our decision
to advance, not retreat. This issue of
BASSMASTER has 16 addiiional
pages, a majority of which are devoted
to editorial coverage. There is a wider
use of four-color art and illustrations.
.. It is our goal to continue to improve
member benefits; not reduce ser-
vices. It is our responsibility to continue
to support conservation and research
projects; not hedge on our promises. .
. . the $2 dues increase (the price
.of a Single lure); BASS can continue to
improve its benefits and s·ervices, sup-
port worthy conservation-research
programs, and fIght innation.
The organization of the Bass
Foundation is the greatest
to for bass fishing, since
the Don t KIll Your Catch" program.
The Bass Anglers Sport.sman Society has
contributed over $40,000 to helping
eSLablish the BRF.
With your continued support,
- together make BASS a stronger
conservatIOn group, and maintain our
as the best outdoor organiza-
tton In America.
" Here . is parting thought on
. cost cuttlOg. The expense of
109 a BASS member renewal for more
a single year is "[ess" than process-
109 a one-year renewal. It enables BASS
to pass this "savings" along to you. A
three-year renewal in 1975 will be
$29.95 . By takingthe three-year
renewal, rather thal1 year-to-year mem-
bership, you'll save $6. What's more
you'll actually be paying less than
prevIOus $ [0 per year membership:
There is one way you can help
reduce costs. That's to renew your mem-
bership promptly. On the average, each
member receives 3.5 notices before
renewing. .
BASS Chapters Growing
. BASS has passed another
mtlestone. That's the goal of more than
[,000 affiliated BASS Chapters. The
Chapter program should bea part of
your bassin' life style. If not, contact the
BASS Chapter Dept., P.O. Box 3044,
Montgomery, Ala. 36109, for details on
how to organize a Chapter. •
BASSMASTER MAGAZINE
. EXHIBIT 8
EXHIBIT 8
ATTACHMENT TO:
SELF-EXECUTING AFFIDAVIT OF
PAUL BENTON WEEKS m
[28 U.S.C. § 1746]
..
.. '.
".: :
:. ",", . :' ..
r.ucon. G.J.. 15. 1992
9 s«tJons - 158 pa(es -
-,. . . ... '. . . .
The basSlllaster
found Ray W. ·Scott·Jr.
to abas&-fishing $ociety
CopyTigltt ©1992, The Macon Telegraph
Editors note: 1hIs article got 'Its
start In 1.989 wDen Its author,
Beau became a member
of the Bass Anglers Sportsman
Society, That
summer, Cab-
ell attended a
BASS tourna-
ment and be-
dime . Intrigued .
by the organI-
zation. Over the
next few years,
he began to re-
search BASS
00 his own. His
research Included poring over
publicly available doa.rments and
Interviewing . various attorneys;
and others. .
He began . to wooder how a
group calling Itsetf a U socIety"
could be "owned" by any one
person or small group of people.
In the spOng of 1.991., Cabell
the results of his InquJ.
nes to the attention of editors' at
The Telegraph. A dedSlon
was made to form his ' research
Into a story. What follows Is the
result
The T elegtaph sent a pre-publJ.
catloo draft of this artlde to Ray
W. . Scott Jr. Which was received
on Feb. 1.8, according to a BASS
Inc. executive. A letter accompa-
nying the draft asked for a re-
sponse. The BASS Inc. executive
wrote that the organization would
like to respond and would do so
by Feb. 28. So far, however, no .
specific response has been re-
ceived A representative of BASS
Inc. has saId he Is worldng on a
response.
37, has been employed
by the Telegraph since 1.984.
. This series was edited by. assis-
tant metro editor Greg .!ones and
special projects editor Robin Sta-
cy.
By Beau Cabell .
The Macon TeIe(Iaph
'Ibe success of Ray WilsonSrott
Jr. just might be the ultiJ:nate fish
story. .
'Ibe 58-year-old Scott Is the char·
ismatic president of the Bass .An-
glers S{Xlrtsman Society - "'the
world's largest fishing organiza.
tion." .
How he made the· transformation
. from door-bxloor insur'aoce sales-
man to multimillionaire mOOia Il1O-
gul seems to epitomize an Ameri·
can dream. '
"Poverty in ' my case was my
greatest asset," Scott has said. '1
made it the hard way, the old·
fashioned way. I grew up and
scruffed and cooned and badgerOO
and begged antl pleaded ani r0-
manced and' I've used. every means
there was to make it happen. " .
, How Scott laid claim to a sub-
stantial fortune was fur more sim-
ple:
In l$7, he founded a fishing and
conservation society known as the
Bass Anglers Sportsman Society of
America, instaIIOO himse!f as presi.
· dent and began publishing Bass-
· master rttagazine. In 19ffi, he
formed a rorporatiDn called Bass
Anglers" SportSman . Society of
America Inc. Then, in Iml. without
an explanation or a vote by mem-
bers, Srott sold the rorpxation. in-
cludirig the magazine, for "'more
money tl)an I rou1d ever spend ...
In Websters dictionary, a society
is defined as "an organized group
that oomes together for the shared
pUi1Joses of its members." An unin-
rorporated society - its property
and its publications - belongs to its
· membership, acmrding toauthori·
ties on association law.
The . tim romplete niission state-
ment from BASS came in the
. Slring of in the very first issue
of Bassmaster magazine. '"The
membership of the BASs AngJers
S{xJrtsman Society (BASS) is 0l8l
. to anyone who loves bass fishing
and shares the desire to advaree
om- Bass fishing sport, and the Soc:i-
ety's IJUrP)ge, .. it said in part.
. The statro Included joining
for cooservation and the .
preservafun and improvement of
bass fishing.
. These . days, when &:ott . talks .
aOOut BASS's' origin, he says he
was just seIling a magazine. "Yeah,
it star1ed out as a society. 'That was
to get your attention. rn just be
very frank with you: 'Society'
sounded much more classical than
or 'entes:prise' or 'as-
sociates' or something of that. sort.
It was designed to get you in. I fig-
t.Ir6i if I coUld get yoo in by hook
or crook. rd keep you." he said duro
ing an August interview with The
Maron Te/.egraph at his Pintlala.
Ala . • home; .
In a Audu.lxJn magazine In-
teniew with baseball legend Ted .
Scott was quoted as say.
Ing. "'Every time I see one of those
patches, I get a lump, tight
ttl my wallet." Williams wrote that
"(Soott) has never pretended other-
,
'Swell that cry to 10,000 _'
BASS, so nameHor the predat0-
ry gamefish its members ared€di-
cated to pursuing and preserving,
was "founded primarily for the pur.
pose of ronserving our rivers and
streains lOr the benefit of the public
ani allSIXlr15men." according to a
1970 BASS legal brief filed in U.S.
District Court in Tennessee in an
suit.
.-....
. . ' : . . !
; ", .. "
:'" :
' ;
l
. . . . .
'The groqp was founded in l$7
by Scott, who Quickly set about re-
cruiting its first member. 'When he
pocketed Tulsa, Okla., fisherman
Don Butler's $100 for a lifetime
membership, BASS was born. Scott
would later say that he :1Jrobably
used it for an airlare home."
By spring &B, Bassmastermaga·
line lxlrn. The inaugtiral issue
.:_._- - - .- .
a:n1:aiooi many arOCles aM phoIx>-
graphs d:naIed by BASS members.
A staremm said 'the magazine Was
" "fush!merl to Serve the interest of
tile ,BASS ,lt1e'IllheClliP •• •. This is
your magazine."
, : Soott ooon parlayed his new vi-
sion for a group of angling (X)llS5"-
" vationists into 2,(0) memberships in
, BASS's first year. ' With,the fervor
of a fireand.brimsto mfuister, he
constantly' preachOO that an orga-
ni2lrl effiJrt was neOOed to save the
nation's waters from pollution.
"A lone voice roirrg out against
a polluter is la;t m the shufl1e. But
swell that cry info IO,ro> and rur in-
dividual ' wires will be heard am
our demands met," he was quoted
as saying in early 1$J by, TheSt.ate
neYf'SPillb: in Columbia; S. C_ ,
And the JDOCe be preoched. the
mere anglers ,lI11S'i'letOO with appli-
cations to the fledgling oociety, rev-
erence for Soott's leadership and
dollars for the cause. '. ,
"With membership in BASS,
a letter fir 10 lousy dollars for
Cl1rist sake," Scd:t sald in an iDlEr-
view with.the TeIRgraph. ou got
a pernonal letter from Ray Soot1
and I sald: 'I am 00 glad you bad
the wisdoot to berome a member of
our society. Fishing takes on an all
new meaning bocause you're' shar-
ing it with a fellowship, afratemity
of men who are involved in ' the
same eoc:leavQr.'
'-The key to it was, I Was wanting
hiri1 to renew. .. '
The society had . a pheoomenal
growth rate during its infancy and
in that followed.
the magazine w-..s growing," Srott
said. 'il1e next year (l!m), I had
'6,&X) 'total. And then the next year
25,OOJ, and that 64.,00), and then, I
forget, it just went - pow! - sky.
ward. , . ..
. 'Tm probably a goOO Iisherman,"
Soot! said, "but I'm better at catch-
ing fishermen. '" And they eat a
lot bette-, too, by the way. They'eat
a lot better than bass."
'Go for the nickels'
Flamboyant, taJkative, with a
selfo£tyled flair for promotion, Scott
looks and sounds like one of the
world's greatest salesmen.
"Ray could sell the pope, a double
bed," ·C. Boyd Pfeiffer, a IJassma.s.
ter rontributor. sald in a recent
Nei.asux?t?k magazine article. ,
are usually fu.scinatOO
by the man, wfn;e easy smile am
gift of gab rome right at you: '1
think my greatest ronfidence was
my ability to lmow that if I bad a
good proiud, that I rould sell , it
and create a market," Scott told the
Telegraph. '
Srott can come across like a n0n-
stop machine. "Every.
thing that rve done in my life, in-
cluding the insmance business, was
bocause fd developed a &f1eme and
a plan and a means by which I
rould sen you," he said. "And you
would, jn a convulsion-like' way,
Share' with " =_ .....
me your UJt:UD. • ••
"'Hey, the!re's no(bing new about
that," Scott said. "Olrist did it 2,OOJ
years didn't he? He started out
- same scheme, I didn't get it from
him, he didn't get it from me - but
my point is that if you've ('Pt, some.
t:hing that's goOO, poople want to
share it." ,
lfis salesmanship is deeply rooted
in his tamily heritage. Scott talks
fondly c{ his entrepreneurial father
and the lessons his da1 taught him
of his experience; during the De-
pression.
Ray W. Soott &., a part-tinie
postman and partner with his'
brothers in a dry-cleaning busiress,
"Was a fine Ouistian man wh<>
workOO like the deW," his son sald.
He owned three-wbeel ice<:ream
car1s, am paid about 15 men a c0m-
mission to jJeddIe his wareS aroum
Montgomery .
Scott 0"00its his sua:ess to his fa-
ther's advice. "He taught us you
don't have tQ go for the big kill,"
Scott said. "Daddy's line until he
died was: 'Nobody had any money
dtning the Depression, bj.l1 every.'
txxly had a nickel.' And Daddy
went afta- the n:ickel - Daddy
went after the nickel."
As a yomJg man. Ray Scott Jr.
worked to put his father's ' fonnuJa
for sua:ess into action.
At 19, he took a debit.insmance
(ro calIa! bocause premiums
m arrears are deducted from the
salesman's salary) and "wotmd up
bustling the ,alleys and back ...............
of Phenix Uty Ala ' oOU..1:I:X>
the
,., at that time,
gambling and underwotid
tal <X the South," Soott wrote
autobiography, and
Selling. • •
'The mob may have oontrolled.
the money machines of Phenix
City, but none of them stooped low
enough to venture Into
can and beer bottle jungle that be-
came my sales fenitoly," he wrote.
"In this'romer of Phenix City lxJth
sides of town were on the ,Wroog
side of the tracks. •.• '
'1 waIkOO the same black neigh-
route week after week, go-
mg from house house, ,building
to OOiIding" coIIedirig 10 to 15 cents
premium 'fi"Olli" everybody wID bad
our burial insurarx:e. I Was e:xpoo.
ted to bring in $2ro a week in pre-
miumS, then, in my spare tiine, sell
more policies.
"I bad mOre spare '
time," be wrote. , '
'1 was running, chasing that
money up one aI,ley lind down the
other, watching it sneak info one
beer joint, then creep out a tattoo
parlor. . . . '
,'The fellow that made it in debit
Was the fellow who coo.Id
get tI:JI:re folks wOO paid, to
pay. That testl;rl. yom- skill, sharp-
ened yom- reflex, kept you en the
move and kept taIidng."
The that got away
By 1974, BASs was reeling in
enough money for Scott to move in-
, to a new home in Monlgomery, one
that's appraised for lax purposes at
aOOut W,rm. Tharsame year, the
society bought an $00),00) Beech-
craft King Air. In his Bassn1aster
colwn,n, srott wrote that the bJrbo.
prop aircraft was fur takii1g mem-
bers to hot fishing holes in Mexico.
Please see lAWSUIT, llC ..
': .. , ........ .
Lawsuit: Scott, others have done
$75 million in damage to BASS
Continued from page 10C
But a back1ash was funning.
BASS charter member Qri-ge
Marzeck said he became disiIlu-
sionro with Scott in the early l!rns
because he thought Scott "u9:rl me
and dumped me. "
Marzeck, of WestBurlingtm, Io-
wa, rocalls that Scott's 00it0rials in
Bassmaster sounded like "John
Muir (fotmder cf the Sierra Dub)
and A,ldo LoopoJd (natur"alN am
author) rolled in1x> one;"
So "it didn't occur to me until
somewhat later •.. that this guy
wasn't all that gtmgbo alxxrt· fish-
ing .for the sake cf fishing a: to tro- .
mote for the p.tre sake cf tromOt·
ing a sport," Marzock. a retirOO
ei1gineer who he1pej Scott l"eQl.1it
new members during BASS's infun- .
cy, said in a telepOOne interview.
After giving Bas.smaster maga.
. -zinc free articles, am
paintings, MarzOOc said be realiml:
Th1 going to quit this because I've
helperl make an insurance man in-
to nmlfubilliooaire. "
Cllarles D. Kelley, the director of
the .A1abama Game and Fish Divi-
sion. was who was unhap-
py. "I never did join BASS," he
said. "I've got an hOnorary life
membership that just showro up in
the mail . Ai the time I was (listed
as being) on his board cf directors I
had never asked for a member·
sOip. "
Kelley said he fin;t thought BASS
was a non-profit growl for "ponu-
tion controI. to try to dean up the
waters ." He said he asked an a<>sis-
tant attorney to contact
Scott and insist that he remove his
name from the board of directors
listing on BASS stationery, "be-
cause I couldn't lend my name In
that private. profit rompany. Well,
we didn't bear a damn thing from
Ray."
Three or four months later, Kel·
l ey said he saw BASS's new letter·
head. '"The damn fool changa:l the
name to board of advisers. and still
had my name on there." Kelly
said. "We wrote the second letter
and demanded that he get my
name off as a member of his board
of advisers or anything else. . . . By
that time he'd gotten the use out of
us he wanted. "
Emory Josey, outdoor colunmist
for the Te1Rgraph. said Scott
"waIkOO.'on a lot of poople getting _
(where be is Way), and I was one
of thern. " -
Jooey said he gained wide' atten-
tion for catching the nation's largest
baSs of the year in uaJ. In 1970,
"Soot!: folmd rut about that and he
came to me and said. 'I want you to
help organize a BASS chapter in
Middle G€orgia,'" said. "And I
we did, a half dozen of us got to- '
gether and organzied the Middle
Georgia Bassmasters in Warner .
Robins ....
"He said. 'I 00:n you In help me
open up rome c:baptm; and then
I've got a job fur you in Montgom-
ery . N Jway rode the circuit for
aOOut three years preaching BASS,
attractirig members across the
state. -
But someone else got the pr0m-
ised job. He said, .. 'Enn"y, I don't
need you anymore. I've already
used you.'"
Jc:s!y agrred that Scott
BASS by saying .. -nus is a oociety
aM we are going to promote fish-
ing. It's going to belong to the
members .... We're going to make
sure that when our kids and our
graOOkids rome along tber'e's going
to be rome bass fir them to catch. '
"Of course, that not the No.
1 IrioritY," Ja:ey said. 'the No.1 .
priority - ana you have' to know · .
the man to know ex:oct1y where I'm
ooming from - was to line Ray
Scotfs pockets."
Scott said he isn't botherOO by his
detractors. "If I don't give him
what he wants for that $1.5 a year
. " in that magazine, he will leave
me," he said . . "Which is what he .
should do."
'A deceptively similar name'
On May 16, 1$), Scott - with his .
then-wife, Eunice, and /3assmiJSter
Managing Editor George Davidson
- filed articles cf inroqx>rafun for
the Bass Anglers S{x:Jtisman S0ci-
ety of Americ.it, Inc.
In documents filed in Montgom-
ery County probate court, the
Scotts and Davith>n declared their
shares in the organization were be---
ing paid for by ..... acrounts rereiv-
able, offire equipment, inventory,
fishing mailing lists am
. the IJa.ssmaster Magazine subject In
the unpaid obligations of Ray Scott,
D.B.A. (doing business as) Bass
Anglers Sportsman Society •. N
Acmrding' to court records, Ray
.. Scott owned 99.00 perrent of the .
ooqxration. and his wife and Da-
vidxJn each owned a · .01 percent
share.
Once thoc.e papers were of·
ficial by Probate Judge Perry Hoop-
er's signature. the new OOlpolation
assumed ownership of the society's
JnQ;t valuable asset, . BassmasIer-
magai:ine. But his editorials in that
publication. never mentipnI:id or ex·
plained the legal maneuver.
In Scotfs column in the summer
1900 OOition of Bassmaster, there
was no mention of incorporati£n;
more than half the colmnn was de-
voted to €21COtU'<Iging to
start local BASS clubs.
Scott wrote a: list of suggestOO by.
laws for the smaller associations
which woUld be affiliates of the
"National Society .. " These BAss-
sancfuned called for the h-
eal chapters to be and to
hold elections each December .
At the request of the Te1Rgruph,
William A. "Bill"
. ry, a law professor at GeOrgia State
University and a reoogni2OO authoc-
tty on agency and partnership law,
reviewed copies of early &zssmaster
magazines, oourt documents filed
by BASS, and articles with state-
ments by Scott as weD as his testi-
mony before the U.S. Senate:
"What (Scott) did, in legal throly,
is he SYPhoned off an opportunity
belonging to the society and he
gave it at no ro:;t to his, let's call it
his iocotporated {XX:ketbook, a 00('.
poration he owned 99 percent. Un-
der tmse circumstan.cei, doesn't he
have an obligation to account for
the rorporation? .. ,
"All cf this evidence," he said in
an interview :ll his office after his
review, "is oonsistent with the thoo-
ry that the magazine is owned by
the members - or the membership
- and not by anyone privately.
. .... : .. . .
!bey give the BASS Pt.ll1lOses
lJ:e"e (in the first issue of the maga-
All of these are oonsistent
with .. " a non-profit orgahilation. a
organization rather than
a pnvate organization to make
money for (its) oWners .. . .
"If the people l1.lI1Iling the unin.
asrriation use ass0cia-
tion assets. for private purposes,"
Gregory said, assets in law
belong to the members. Not to the
poople who ran off wiJh the mon-
ey ...
. In a •• . J
J,luavrw·m anu-
ary. Scott said the members did oot
vote to 'm did they
need to. 1t was just a
ship tbm," he said. ,
He said members Wffi! not enti-
tled to any sort of ownership.
'"There were members, per se, of
the society. But there was nothing
regarding ownership. They were
participating, duespaymi Ine!Ilbern
. . _ for the dues they tE:'reived cer-
tain .specified benefi1s and priviIeg.
es. That was quite clear'" &:ott
said. •
"Nothing beyond. that, there ' was
never any expression they would
rights or be able to par-
ticipate m coqxxate affairs or this
type of thing," Scott said. "Never.
Ever. Not Once. "
'1 think at the JXJint where he
started to solicit be then
has injected into his mIe propri.
e!orship' the q>eratim of whatever
the strtutes are hI respoct
to \D1lDCOrporated associations,"
said Syracuse Univm;ity law Pro-
fesror James K. Weeks in a tele-
phone interview with the TeJ.e.
groph. "'But if they're similar at all
to the New Yoric ones, obviously,
that vests rights in the member-
ship.
'"So whatever the assets of that
asoocia,tion were" despite the fact
that they starts:1 out as originally,
his brain<hild ... it can be-argued
this (Bassmaster magazine)
was. the principal asset of asso-
ciatkn and that re:iaiDly any fur·
ther . disposition Of that particular
asset '" was romething that would
have approval cf the mem-
bership."
Gregory agre:d; "BasOO on what
rve seen. like in this first issue (of
Bassmaster). at least it's a jury
questioo as to what are the rights
and priviledges of membership and
who owns the magazine. But, it's
ceriainIy not an obvious, d€cided is-
sue in favor of the guy who's nm-
ning the whole show now that . this
is his private property. In fad ev-
ery in1ication is to the axrtrary .
Jllere's nothing Wrong with
soIDelxxly Selling a fishing maga.
zinc," Gfega-y said. wbut the prob-
. lem here is this magazine has
blurred the. line between being a
nonprofit group and being a for-
profit group."
'1 debatOO: whether to make it a
profit nonprofit (organization):
Scott said. '1 rould have gone e·
way. '" A Writer friend of
I1lIf1C •.• tipped the scales towanl
b¢ng a profit <riented. And frank·
ly, he was so right bocause he said:
'Ray,' he said. What ditference does
it make?' He said, '1 don't particu-
larly like I1OOlX"Ofi.t organizations •
He said, "There's something , .
sinister about ,very
nonprofit. • ••
"In looking back at it, poople
don't join BAS') bocause we're prof..
it-making or 1lOrl-pI"dit. They join
. of what they get. Can't for-
get that. There's nothing noble
about it. I rould not live over the
pious few that live for conservation
and clean waters. That's baloney .
don't care aOOut that," Soot!
Weeks, who has taught nonprofit
and association law,' said Scott,
"seems to flpat in and out of the
coCporate designation whenever- it
suits his purposes.
"At one point, he calls it a society
- and this is all after that . _. in-
Weeks said after re'
VleWU1g, on request of the TeJ.e.
gro.ph. membership applications,
early editions of Bassmo.ster and
copies of BASS lawsuits filed in
oourt.
"Sometimes he taIks ahJut the
society, sometimes he fails to men-
. tion the c::apx-ate 'Ioc.' title. And
the CX>rJXXate des-
and the lOOety designation
i:nten:hangeabl," Weeks said.
. '1 think there's a poosible ronfu.
SlOll that can arise there. Whether
he does that inadvertantly or pur.
pooely is, <i" course, difficult to tell.
But it sure as hell is no not.for.pro{·
·it corporation as far as I can ooe.
"It appeai-ed to be an
rated association Irior to (the moor·
Weeks said. But, '1
don't think at any time it's reached
the level of a not.for profit corpora·
. tion.
"It's hard to telJ ' what exactly
(BASS members) are joining."
Weeks said. 1bey're not buying
any stock in a corporation. 'That's a
very closely held little thing that
(Scott) and his wife and editor got
together. I don't know how you'd
classify what the members actually
join here."
In a variety of publications which
print information they gather from
oompanies or groups, , including Dun
& Bradstreet and the Encyclopedia
of Associations, BASS Inc. 's foun-
ding date has been given as 1938, a
year earlier than the actual date of
incorwration.
is the only person that the
date of moorporation is real critical
f.c?? It's Ray Scott, who sold it," Geor·
gIa State's Gregory said. Lfheincor.
porated this I?ovate corporation,
a year earlier, before this associ-
anon ever started, he'd have a much
better theory of showing that the
magazine belonged to his private cor-
poration ." .
Asked for a response to the legal
experts' beliefs that he did not own
Bassmaster, Scott said. '1 don't have
one. 'That's the first I ever heard of
it ....
""The thought never even oc-
arrred to 1llC," he said. "If they have
a claim, of oourse, I guess somebody
oould go (through) the legal channels
and pursue it . " .
Investors '
Two life members of BAss from
Kansas, Bradley MtnTaY and Larry
Nett have filed a class-action lawsuit
against Scott, BASS Inc. and those
Scott to whom sold the oorporation.
The suit alleges that BASS Inc.,
Scott and the new owners "have
been and currently are engaged in a
scheme to defraud the members of
the Bass Anglers Sportsman Society
of their SUbstantial property rights.-
"Scott repeatedly represented the
Society's primary pUI1JOSe to be con-
servation of our nation's streams,
lakes, rivers and other public water·
ways," the lawsuit, filed in U.S. [)is..
trid Court in W1Chitl, Kan ., says.
At no time ... ," the lawsuit al-
leges, .Scott publicly reveal that
the Bass Anglers Sportsman Society,
. an unincorporated association, was
formed for Scotfs personal and pri-
vate financial eruichment and prof..
it. . . .
, "Plaintiffs allege that defendants
are guilty of fraud. breach of fiducia-
ry duties and oonversion (taking
funds intended for someone else as
your own)." the suit says.
U asks the rourt to ortler a full
of BASS Inc. 's i:'evenues
smce the time of the inoorporation.
'"They have caused damage to (the
excecling
$7S millio.n. the lawsuit says .
An. article in the June 5, 1!m, isSue
of Time magazine reported that
Bassmaste:r's advertising revenues
were about $12 million for 1988, and
that BASS Inc., as a whole, had reve-
nues of about n> million that year.
James Kobak, a Connecticut-
analyst,
projected ill October 1991 that BASS
Inc. 's annual profits milk! be as
as $S million a year. Kobak
said 8asSrnastRr acrounts for about
75 percent of 8 ASS Inc. 's revenues.
TIle lawsuit asks the oourt to turn
o:,er ownership of &ssmnster maga-
zme to the members of BASS and
asks that Scott and the current'own-
ers be forced to tum over all money
they've made from the organization
over the years . An election would be
held to select new leaders ,
.: ,
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The lawsuit also asks for punitive
damages from Scott and BASS Inc.
As of last week, neither Soott nor
BASS Inc. had filed a response to the
suit. They. have until March 30 to
respond.
In the first issue of Bassmaster,
Scott encouraged bass fishermen
'i'o be an 'investor in the fulfillmalt
of all the goals of the Bass Angler's
Sportsman Society ~ "
In the nearly two and a half de-
cades since, BASS's membership
rolls have swollen to more than
5OO,rol. Cotmted among its famous
.. members is President George Bush,
who has told reporters that Bassmas-
ter is his favorite magazine.
But members don't just include
the high and mighty, though law-
yers, bankers and business execu-
tives are among them. BASS patch-
es are prominently .. displayed on
windshields and· bumpers through-
out the South. New EngJ,and, the
Midwest and-the West.
Acmrding to a BASS sunrey pub-
lished in the magazine, the average
member · during the '00> was a 36-
. year-old, college-educated male who
earned $28.ax> a year, spent $350 a
. year on fishing gear, fished :rI . 2 days
a year and spent $15 a year to join
the oociety - $10 of which is for a
Bassmaster subscription ~
After 24 years of Scott's bass-fish-
ing evangelism, BASS is well known
for the nearly $3 million bass tourna-
mEnt trail and a weekly. cable TV.
program, 1be Bassmasters." And
Bassmaster, still published 10 times a
year, circulates to .542.Z79 . people,
with 21,539 of those in Georgia.
'1'he average guy out there is
wanting to lmow one thing: 'How in
the hell can I catch a bass?' All the·
rest is lip service and will leave his
lips as soon as you leave his sight,"
Scott said. .
Members keep casting their lines
and dollars,. and Scott continu.es to
. preach the cause.
EXHIBIT 9
EXHIBIT 9
ATTACHMENT TO:
SELF-EXECUTING AFFIDA VlT OF
. . .
PAUL BENTON WEEKS m
[28 U.S.C. § 1746]
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THE WALL STREET JOURNAL.
1995 Jonn & CDnrpmry. [,,'- tlU Ritlus R=nxd
., * * * EA.ST1ltN EDmON
i
WEDNESDAY, DECEMBER 13. 1995
· i
t.: ::.:'::.::: :::.::: I
-..... ..... .. '.;
i
Is There Something Fishy atBASSInc. ?
For-Profit Clu b Lures
Anglers by Appearing .
Nonprofit. Critics Say
'.':.
I RASS I pIIlches. I ret II lump righl In my
Wanel." ..
But roc- .decades. BASS's lop O(flclals
move to create an atmospll«e lite thosI!
rOlllld at In 1911.lor eumplt,
on \he IbIrd al\lliversary 01 BASS','ound-
In" Mr, ScaU wroIt In \he IOCic'Cy'1 Rass·
mut« •
.. By Gu:c JAnE nshlnc rroup we have acc""",11shc.d much
. .• Aqon.-r.,Two: w ....... ano".". .IoU""AL ·In alhon In thf Ilory, Mr. Scali .
Ute. the Nanri CouselYllley, the 8&ss Wtnl on 10 complaIn lhal 'IM' Sock-Iy',
AncIen Sportsman .SocIety Inc. bas be- eade&wrs In \he aitUpolluUon
. , corne a respected volu In \he nthl lor ItnIRIe and the BASS FIshInc
.:.::: ! deanet' ... procnrns reduce \he amounl oC time 10
.· ... ::: .. :··.:·:.: .. .. IltlOn, BASS Iponson blth'proflle \Duma. man.,e and host bass · fIsIIin, lourna·
ments lround \he COW\IIy. Uke the KIWI' menb;." Nowttere Is there a mention that
Dis Oub,lts memben leell boiu1. ,. ',; \he IOdeCy Is Ilor-prontcompany. .. .
. j. "Amu1can.s are·the ..... Iest Jolnea In Sven now, Helen Sn:kr, BASS', cur-
I .' - rent diId executive, &ctl1ow1ed(es· thaI
1 \he 'KWIc!." 18)'5 BASS louuder Ray SCott. . members lee "sodety" memberstI1p as
I
"U \hey don't haYe somethlnc to join, lantanlOllllt to JoIn\ric the
· sometbInc to join'. . "We wae awtetln&' I · _ of belon,·
i How, lOIIIe _mbe" are woOdertn, Inr," 1M.18JS.
I
' wb4t It II they joined. . . Settla(0at .
. TO the public, BASS, with . Ray Scott cutaInly bad \he 18VV)' and
ety lIIemben. " .. the MUon'1 brrelt nih- . cIw1m!a to mu1I:e\ ilia! _ 01 brodler-
i
inr dub, publliher of "'hlnr mall'Ulnu IIood. He Ht oul In \he bulllIeSI worid 1\
and host of the BASS C1U1lc, an Ire It u an llllurance Kleaman, plylnr:
1.I\l1ua1 Ihree-day event bOled as the Worid bII trade III Pbeatx Ctty, AIa.,In the eariy
, Series oC fIIblnf. EarlIer thlJ month, Field · liSOs. He aoId bur1allnsUr&nce, paid 011 In
I
"Strum marulne I'n'mled BASS', e(. dau·&ctIon IaWllllt III fedeni cOurt 1nWJ:' ·income and Increaslnrty are fl!t&r Into· 2kent-aoftelc lnat&Umenu,lo A1abaml'l
fOC'U to PfOIIIOte and protect bus IIshlllf . chlta, Kan .. aRqlnrthatllASS.Inc.dIqie'd "I8)'1.JtmeI poomt IUs YOW tocustomen:
by IWI\lnf Mr. Scott one 01 the 20 blue'lt nshermen by dII"tuIIlnr the • FIIhman, I proCessor It Pice Unmrslty .Our mves"are I foot deeper Ind a nickel
oa outdoor. lpOrU In this cen· as a nonprollt cotllenltlon·lllhlnr lOcI- School at Law In Whlle P1a1t11, N.Y" who cheaper." H1a ,aiel teclInIque olIen In·
)
' tury_&II bcmor be IbuH WIth Teddy Roo" . eCy, · .. ".. .,' ,. " ":-:-, .. . . _'., .1tUdIu ·lIOI1Prollt ':!t., be- .-olved leDlar, In Mr;. Sco\t'.-c,.,.n words.
leYelt &lid environmentalllt'luthor Rachel'.'rh1I II I '\aiTe;' loIirtbiIe-' masIIve come very bard It times to cIn w I '/takIs that weml't abl.ol\lldJ true. .. ·
Canon. . . . fraud," Stye G. Robert Blakey, . I Notre . Unelletween\hetwo..". . ' UwullllK7thatMr,&cottbcdwhathe
Indeed, lOr neaily" thi:ee deCides, BASS Dame law professor and'autbor of the led· . . The lltuatloa with BASs Iw la unUl1iaI ruen to In limO(( rel1(lous tmns as I vi·
· 'I'! Inc. /w thitfed In part oCC an tmafl! that.. enl'R&ckelcerlDfluenced andCortuptOr-. tWuc.18)'S Mr. Flsbman: U II llor-prolit IloII.Ly1nrOlllhotdbedInJacboIl,Mlss ..
It least -puttall)' nonprofit and pnlllllonllaw who .. I colllll1lant In the lllat often Ippelrl to be I lIOn' IlIslllldenrear, 14r, Scott 18)'1, be bll on
mentally consdous: But despite II! dub'-' case. "These people bou&tt Into what \hey 'proOl' . lUte Idd blU-flsbInr tour-
· . .... i. Ute IIIn. BASS Is • bud ness with . was I lOdety (or bf.sI en'f1ron- BASS Is ladllf the lawsuit al a time jnament. For a Sl00 eIItry ret, contestants
.
: ....J. IMuaI reYtnUt 01 $SO !DUHon to S60mll· mentalJrts."· .•. . .. when eq>nomIc !rom 10 dtles In . ;would earn the r1(IIt to compete lor I 15,000
1IoiI. that Ipel1ds some IU llUWon, or That'snot \0 l8y u.e-.c:OUipi,ny the SouthUd and Ftorlda are danCllllf In-. ,(T'IIId prize &lid I trip iii Acapuko. For-
,. rouiI1Jy", of reYeaue, on nonprolll con:. provide beDedl to· membm, . inaIIy of . eentlves to lure the eompaQy" new bead- . tI!ne cIa)'s, lie ICr&CdIed out the rules on I
lemtion act1Ylt1es, adiulnlJtet'lnr'locaI whom dearly I'tlish their part In the bl( quuten that would JQ- yellowleplpad&Rd\henhIUbeS1reets.
flshlnc' dubs and cblldl'tn's procnms. !!shIn, dub •. Morwm-•. 'Mr;&oott dlldedSO million theme park. outlet aWl.: He ItIr1ed with the n.ames o(four Ilsh-
And, eYen thoocflllle arranlllUon cays II menUy denlel Illal the company d=lved Ind aquarium. IU dedicated.to the out-- . In( bWdles WTltten on lour Indu cards.
been sucuSstuI In populartzlnt the Inyone. He says he bas made It DO secrel II-. and the basE. . .. '. - . Throuth 0( !IIOOth be built on thaI
_sport 01 bUs ftlihlnc ind proted1nr bass thnl helw made plenty 01· money !rom In_n tn·Ws wan· t" \. .. \ 'i:;:.' ;.' ;' list, l=ulaUnrlboutSOOJllllles. "Alter
habItats, only lbout U .mlUlon olthatSl.T BASS, Ind lie Isunapoloretlc. • ......... e. ' . .: .. (, .' .. ' tIrst (our Dames, I wt'O<e their
mmlon roes to environmental Issues. "Mate no'mlstake &bout It: I went Into Mr. Scott, who sold BASS fl1ends," Ays Mr. Scou. '11tTOte them I
BASS orndals aay. (Owner Je"'lson.... Illls 'fO'I1ll one Idea, and that i ... s to make . .son In 1936 but I'tmalns cbaJnn&II mien- .- ' letter,l8y1nf, 'Your It1end Is partld·
,.i YeStmeDt OJ.; 01 Blnn\n(tlani, deem't dIs. money ••• ," I&YS Mr. Scott, a . 1Iri, says he lIeYer InteDded lor \he Ioclety " , palin&' In the JJ1 American Bus Touma·
. lose n) . man with a penchanl lor III1Ctr-s!ze bell 10 be anythln,odIer than 1 bus1ntas.The :'. mentlndlleburecommendtdyou lobe In
.! t.
g
.-
TwO
Worlds buckles. "My mot1ns were alnys merce- . 'namboyant 62·7tar-old founder put lip bII,'; our ClImpeUt1on, dafmln, that you ao
aary." .. own money \0 liar! BASS, pald taxes OIl the .. Ivtd basdlsberman and renUeman of hlcfl
; : BASS', maddlr,;, 01 llle'lor-prorllIJId ExPerts say BASS tnc. Is an example 01 eompany from \he be(InnlllC aDd routfuely 1 ' stancs.rds.."
):::1 IIOIIpro(1t worlds has created ,mal could be · the IncreastnctY' blurry line between ·'or- boasted lbout praC11S. Indeed. In I quote , . than 100 flSbenMlI turned up lor
· . ,.: j I sI(nltlClllt .\.breat to Its Ofi8Dl%atloo. At· prolll and nonprotIt entities. "These da)'i, . from a 00 Audubon \IIIfIIIl1e article, Mi. ,the tooruameot. AiId' &I\bourh Mr. Soat1
· , .. ::' 1 tome)'1lortwoBASS have rued I 1I0nproats are IootIntCOI'Wlyeto reuerate SOJtt aaJd, ''Erny time I lee one of I· . nail /0 I'IIOC st, CblIOll" 1
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54 THE WALL STREET JOURNAL. SOtITHEAST·JOURNAL WEDNESDAY. DECEMBER 13. 1995
SOUTHEAST JOURNAL
BASS Inc. Creates False Critics Say
uys he even. he sensed anop-
portunlty 10 crute a soclety dedicated 10
the pumllt or a 'Ine1e of Rah. thc
btnck bll.SS. "There WAS I hut out therr
blrter than eYen Ith<X/lfll," he SlYS. '
So. Mr. Scott quit his job and
a Uny olllce In t.!ontCUmuy, AJL.,
a.cros.s the street h-om a shop that made
tom\mones. With the help of a friend. Mr.
Scotll4ld out the Orst luue of
mag-wne and out1lned the 10 roundlnr
COOls ol the soclety-nve of which related
to conRrYlIlion and the envlronmtnl.
No EnvtroDmeDtallst
Today In an IntttYiew, Mr, Scott says
he Is no environmentalist, nolInr that he
"desptus the word" ror Its antibusiness
connotations. But he says he knnr the ru-
,, ', lure or his dub depended on presemnr
bass habitats. He also knew thai conserva·
Uon was somethlnr that Interested his tel·
law nshermen and woold spur them 10 Join
BASS. ''TlIerr,wun't one In 100 !bas, nsh·
ermen! Interested In cany\ne I Iprot.estJ
placud In Iront or a nasty pollutu. h rays
Mr. Scott. "But they would 1fTft. that It
was a rood Idea. "
Mr. Scott beran ulllnr BASS member.
Ihlpa. In uchanre tor thdr membership
dUe1l- SlO a yur In the early days. 12O I
year now-Mr. Srou promised floh=en a
patch wtth the BASS \orO. They' a!ao
ttlved a lubao1pUon to BusmLSter map.·
dne. which rtlled on runbUnr 'maDu-
Knpu IwIdWT1tten Ind Rnt In almoct U· '
clUllvely by
BASS memben a1ao eamed,the r1JfIt to
Id up OT Join local dubs that wert &dm!n.
IIlered oul of !be central BASS BASS
,dub memben could par1Jdpalt In' BASS
tournamenll held 'around Ule country. AI
those tournamentr, )dr. Scoct, armed wtth
a bullhorn and I tlArter'1 plato!. rmceed
wtth the ual 01. a Baptist preacher. "He
COIIId !'tally rlte'up the mwes ror 1OIlle-
thlnr they had a tanatlcal Inttrett 10,"
members Steve Uthtloot, III outdoon;
writer Ind lpokuman ror Texu Pub
and Wlldllte
", But It wasn't the tournaments that
'tamed BASS national attentlon.,lt wa:. Mr.
Scott', e&Ils lor' cleaner I.a.ke$IlId rtre&.mi,
which tortultously coincided with In
emeJ'i1.nc national Interest In U1e eDl'1ron·
menL On a slncle day In 1970.1I1th the help
01 Montr-omery d11!·rirhts l"''Yer MotT1s
Otts, BASS rued more than 200 llIt1poUu-
lion Ia wsuUs. , ' ,
The lulu, which tarreted rompanles
acros.s the naUon ..... ere LS much theatr1·
' cal u a.nylhlnr else" and were all dis·
ml.s:sed. IIYS Mr. Scott. StJIt. Ule stunt
landed Mr. Scott an appearance on NBC's
"Today" show. BASS rot a bir boost, dri·
vtnr the SOCIety's membershlp rolls over
100,000 by the early 1970s. .
BASS tlshennen responded 10 the call
'ror cleaner wattrs by sendlnc checks to the
Montromery headquarters. In some
the dleeks were sent to BAss lor Its dean·
water drive. In others. Oshennen sent in
membership dues tliat they 10
think were used 10 tund BASS's fOOd
worts. "I hIIYe"hnltated llonr tI __ bM
Jolntne BASS. No wrote BASS
member Jim Rutherford In ' the
Jlnuuy/February 1J11 01 Bassmn·
Iu. hFor with alms like those at the Bus
An(krs Sportsman SocIety, no S)JQl1l1lWl
an alford not to join and do his bit Ihrourh
dues to help make a duner America . , .• '
Here's my ten bUCks."
Good·Works Promollon
As Mr. Scott tOllrtd the rountry to pro-
,mote the orpnlutton IJId oversee rlShlnr
contests. he conUnued to public\%e BASS's
, wort. In Wichita In I9n, he
,'" , .. :.: •. « ," .. ,.J". ," ..

foaOcitcl: 1969 :.
;' MIAtoa; PubrlShes six IN(J3lines and a :
IIlmsion show. Runs proresslollll
fisIIlng lOurrwnents.'
11I1a; for."nmt ,:,: '
i; AMU! RfTtnac; Estlinmd 150 mllAoQ
10$60 mlUlon " '. ,,,,,. " '
" '
FovadH: 1068 .
Mmlaa: ,To oroinlzi iia:ss (lshdnm"
IntO • R31IoIW 1UOdaIIon. pr'omot.
bul tIshIng Ind prQ\Ict bass lubltm.
aul1l,: BASS IraItIIIM lederadon U I
no!·lorl'rofH operation owntd by
romery firm. 10 belp
hIs nMellne orpniuUon. .
The early man 5OIkitatlons she 1VT'Ote
tor BASS the dUbby 01 tht
Jport. One or the musl wnt·
ien by Ms. says; "NOI. every fISher-
man wurs Ulls patch. DIn yoo! JoIn the
world', Ial"(ffi ruhlnc OIPJIlution to-
day." The ad. stili used loday, sells "a
sense ol pride that they art pUt ,ol an or'
ranlutlon Ulat Is bonded totnMT, not un·
llU the Smithsonian." she says.
Growtnc Rolls
As BASS membership roUs (l'tw. Its
tournaments. thaDIes to Mr. Sro!t's tireless
promotion, also were crowine In stature.
Mr. Scott nell'- outdoors Writers lrom
around Ule country to the BASS Masters
Oassic. By Ult mid·70s. the tournaments
were startinr to draw rnalex: sponsorships
lrom fishing- and boat
But In the late 19TOs, wmt tany BASS
members seemed to be (fOWine disap-
pointed by BASS's increaslnc locus on Its
tournamenU' lt the expense 01 the environ·
mental wort Ulat played such In imPortant
role In Its e&ny days. Are tournaments
"what BASS Is all about?" wrote BASS
" member Jim O'Qmnor In a !lin ts.ue 0( ,
, Bassmaster. know trom readlnc tM
lOUIId1nC coals or the Bass Anclers Sports.
man SocIety and the BASS (local c1ubsl •. •
that this Isn'l Ule InIe 1"011. 'nirn the q>oI.
, Urnl on youth I!shlnc'prorranu or environ·
mental proJtdI."
StUl, BASS'I membe.nhlp conUnued 10
JTI'W. hlttlnr M,ooo In IV8Q. ProItulonal
became And Bus·
BASS Inc. " '
Amlall Jp.adliG= 1f.S inttUon
foandtd; 1970 , ,_, '
: muter mapzJne III lmportant ad
vehlde tor boat and l!sb\of CXlIIIpaIlies. In
19M, Adweet rated Banmaster
DOe of the 10 hottest publla:llons In' the
coontry, bued on Increuu In advertlslnr
MIAlaa; To proWct lilt tmironmcnt. .'
IlItIIt: , 501(c)!3) noriprofH lounded by
BASS oIIIcbb ' I " , ,
Annlll IptadlllG; AVlraoe m,ooo
over P¥t 1M )'Wl
" <
placed an the toeal paper
ask1nc people to rive S2 al ,the cioor of a
BA.SS-spons«ed /!shInr demonstn Uoa. to ' '
help "BASS CODtlnue the ,PoUuUon Plcht
toraun Water."'tbe ad nc-ver mentlooed
BASS'I tor-prollt Jlatus ••
, And BASS did Indeed make the Wlln"s
better. Its policy oll'tleaslnc fuh once they
werf caurht. known IS "cltch ond
tellie," helped lin the bass species Iran
overfuhlnc. )lembers ol the local BASS
dubs. whose activities olten werr coordi·
nated out 01 the Monl{omery oltice, took to
ana lakes plcklnr up (II1>a.g-eand lobby·
inr local r-onrnment tor environmental
laws.
'By this time.. wlUl membership buildinr
rapidly, Mr. Srott had tapped Ms. Sevier,
who was selllnc rootbooks ror a )loDI'
parel and I't'ftnue. ,
But,as BASS expande4, tbere _med to
be InCrt&SlDC c:onIusIoo, mil ,"thin the
mety. about whlcb partJ of BASS were
lor-prolll and liblch nonpro!1t open.
tlons.
In 1988, when the company ber1n BASS
TImes. It sent !be weddy ,nenpapc:r out 10
BASS Federation club members at a mall·
fn$ rate resened for publlattOllS prodUttd
by'1lOllprollt tIrms. 'Four )'Un later, the
publication, which updates members on
toW-namenl Ind COIlIerntloll
nrttched 10 a ror-protll JnaIIllI( labeL At ftll
\be publlc.atJOn was owned by lor·
proOt BASS Inc., IIYS Xan Dabbs. BASS
1nc:s Yice prtSldent ol fInInce.
Mr. Dabln says the Mtch was made
because the newspaper otipn.ally served
pr1marily as a nC'WSletter tor the BASS
clubs-retarded as not·tor-proOt-but
later became I proOtablc'pubUcat1on. "We
continued to !send It at ' nonpronl postal
rates I unlil "'e realized It may not be the
rtrht thinClodo." says Mr, Dabbs. Technl·
cally, he says, the neW1p8per should hne
,been published by BASS's nonprofit tund,
Anriers ror Clean Water. Then. it BASS
Inc. >nnted to to a profit·matln!:
enterprise; It should have purchased the
pllhlicatlnn lrom,thr nUllpmOt mUll'. Mr.
[)Ilbbs now Jays.
Secrel to SUCttSS
In a 1991 Intuvltw wIth StlCCt'U map·
%lne. Ms. Sevltr explained the Reret 01
BASS Inc. 's fT'O'I1/I by Ayin,C, -We're ' l
pronl-mlklng- orpnilllUon. IMlt
loot OD us a.s a nonprollHYP<' OCl.nw.·
tlon." now says meant that • .... e do
Same 01 rood w-orts L< lhf Sierra
Club. but under a torl'rofit umbrtUa.-
That umbreUa appears to be a bit
opaque to members. Larry G. Williams, a
lrom Monroe Falls. W.VL, rom·
pares BASS with such nonprofits IS tht No·
tional ' RIOe Association and Vet.",ns 01
Fnrticn Wars. "BA..<;S Is not Just In It rOf"
tbe money." he SOj'S. Adds mcmberLonnie
Simmonds 01 McCoot. Neb .. "1 didn' t re-
ally knoIA' It was (lor-prolitl. 1 thoUrbt It
.. as the ,",me LS the NRA."
The contusion has propelled BASS Into
the middle 01 Ule dLSs'a(tion suit. Filed In
lederal district court In W1ch1t3 in 1992
Ind translerred to 1"&1111 dlStriCl COlIn in
Monl(Omery unler 'this the lult
contends that Mr. Scott acted lItecally
when he Incorporated the society In 1969
and awarded hlmseU 99'k o( the stock. It
s<d3 to rrtUrn ' to the socIel)' ail proOts
and a.suts that Mr. Scott . Ms. Sevier and
Jemlaon Investment earned lrom the en·
terpnle. The money, nUm.ted by the
plalntUls' I .. wye", to be over ns mWlon.
w-ould be ,wed 10 luJnllthe orielnal COllur-
nUon and rtshlnr-promotJon I"OIIs cit the
society, laYS Rlndall Flsher, the pllIn·
attorney, who IIYS that Utt/e 01
BASS', revenue went toward envlronmen·
til ca1L5CS.
Lawye", ror BASS. Mr. ' Scott. Ks. Se-
vier and Jemlson say that the natute ot
Ilmltattons h4s explied an Iny aUered
[raud. which they nhemenUy deny.
The lUI! appears to be doing Utile to
'low BASS down. Mr. Srott prt51ded In Au'
rust over this yeu', BASS Misters Clas·
lic. Tbe avwd of %3.000 traftled III aft!'-
are fO() mJle:s to attend the G=nsboro,
N.C., event.
The day belore the crowds COftTtired
therf ror the nnal welrh·ln. U.S. Interior
Secrtlary Brott Babbitt and some 50 rep-
rrsentaUve:s from the naUon's most influ-
ential environmental croups huddled
a.roond a' conlerence table to dl"",ss how to
mm protectJon or the country's natunl
Rsourtts an Issue In the 19%
RWU1lnr the m«tlne was Bruce Shupp.
ronservation director 1« BASS Inc.. the
only t<X'1lroOt corporation In attendance.
, lU-caHinc his croup's rood w-orts. he or·
Ie'" Inslcht Into BASS's
, times." he says, "I h2ve a dllllcult lime re-
membering we'rr a (tor· profit! corpon'
tion."
EXHIBIT ·10
EXHIBIT 10
ATTACHMENT TO:
SELF-EXECUTING AFFIDAVIT OF
PAUL BENTON WEEKS III
[28 U .S.C.§ 1746]
V lrglrua fj.A.0 .0.: lilt: v u D.l'""L0.0. l' CUCI ClllVU ..
Angler Profile
..- Sponsor Profile
Y Featured Column
http://www.vabass.coml
What's New· 12/1512001
Welcome to the Virginia B.A.S.S. Federation Web Site
The Virginia BAS.S. Federation strives to presefVe and promote the sport of bass fishing.
Federation activities include the introduction of sport fIShing to young people and the conservation of water c
natural resources. The 2,400 Virginia members support and cooperate with fishery management agencies a
educational institutions to develop and protect quality fisheries.
The state Federation and its nine regional divisions also organize and conduct competitive fishing events. TI
Federation was established in 1972 and has a proud history of accomplishments with youth, conservation al
community service. Please see the Federation Link for more information, including how to join .
Site Designed & Maintained by Peter R. Herbsl
Copyright 2001 R Herost All Rights Reserved Credits & Disclaimer
12/28/2001
t'age 1 ot 11
Federation
<back
Constitution and By-Laws
ARTICLE 1. NAMES, ADDRESSES AND MEETING LOCATION
1.1 NAMES
1.1-1 NAMES
The Virginia BAS.S. Chapter Federation, Inc., herein known as Ihe Federation, also known as the Virginia BAS.S. Federation, the Virginia
BAS.S. Chapter Federation, or any of several variations of the offICial corporate name which includes the term BAS.S. or BASS, the symbol
of the Bass Angler's Sportsman's Society of .America, Inc.
1.2 ADDRESS
1.2-1 PRINCIPAL ADDRESS.
The p'rincipal address of the Federation shall be. the residence of the President, or other address as he may select with the Board concurring.
1.2-2 OmER ADDRESS
Elected members of the Board, Committee Chairpersons, and olherofficials appointed by the President, may, as approved by the President,
establish other addresses necessary for the timely and efficient discharge of their duties.
1.3 MEETING LOCATlON
1.3-1 BUSINESS MEETING LOCATION.
The business meetings of the Board shall be convened at a site selected by the President with the Board cooaming. All Committee and other
official meetings shall be held at sites selected by the·chairperson or other presiding officials.
1.3-2 GENERAL MEMBERSHIP MEETING LOCATION.
An annual meeting, open to chapter presidents and the general membership, shall be held at a site selected by the President, which is
suitable and convenient for attendance, by a large number of rnerrbers.
ARTlCLE 2. PURPOSE AND GOALS
2.1 PURPOSE
2.1-1 PURPOSES OF mE FEDERATION.
The Federation is established to preserve and promote the sport of angling for largemouth bass (Micropterus Salmoides), smallmouth bass
(Micropterus Dolomieu), and spotted or Kentucky bass (Micropterus Punctulatus), herein known as bass; to introduce youth to the sport of
fishing; to COnsefVe water and other associated natural resouroes; towor1<. for an abundant, healthy and self-sustaining bass fishery where a
natural potential exists; and to support the local, state and national agencies which conserve and manage the fresh water sport fishery and
otherassociatl-ed __ re_s_o_u_rce __ s_. ________________ ~ ~ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - __ - - - - - - - - - - - - - - - - - - - - - - - - ~ - - ~ ~
2.2 GOALS L::.
2.2-1 GOALS OF THE FEDERATION
The Federation, shall, in its opecations, pursue the goals of organizing and conducting competitive fishing events which adequately provide for
the needs of the bass and the angier. to establish live release of bass to their habitat as an integral part of sport fishing; promote realistic
conservation of natural resources and causing adoption and enforcement of adequate water quality standards; of educating the membership in
http://www.vabass.com/federationlby laws.hlm 12/28/2001
citizen involvement in the processes of government; of supporting and cooperation with fishery management agencies and educational
institutions in development of good fisheries for the future; of encouraging youth involvement in sport fishery and leading the chapters in
organizing and conducting youth participation activities;· of promoting public awareness of the Federation's purposes, goals and activities; of
timely and efficient communications with the membership through a regularly published newsletter: of gaining new members and chapters to
BAS.S. and the Federation; to generate revenues sufficient to conduct the programs of the Federation; of reducing the hazards of boat
operation and sport fishing; of supporting the non-profit purposes and goals of B.AS.S. ; and other such goals as may be established for the
chapters and the committees of the Fegeration. .
ARnCLE 3. AFFILIATIONS, COOPERATIVE AGREEMENTS AND FACTS
3.1 AFFILlAnONS
3.1-1BAS.S. AFFILIATIONS
The Federation shall preserve and maintain in good standing its affiliation with the Bass Angler's Sportsman Society of America, Inc., herein
known as In the State of Alabama with it's principle office in
3.1-2 VIRGINIA REPRESENTATIVE OF BAS.S. CHAPTERS.
The Federation shall operate as the sole representative organization, other than BAS.S., of the various chapters, associations, clubs and
other organizations established in the Commonwealth of Virginia and duly chartered by BAS.S.
3.1-3 OTHER AFFILIATIONS
Affiliations with organizations othel" than BAS.S. may be initiated by the Federation to advance the purposes and goats of the Federation and
\he best interests of its members. Such affiliations shall not be maintained in conllict with the non-profil purposes and goals of BAS.S. A
written statement of conflict from BAS.S. shall be sufficient cause for dissolution of all such affiliations.
3.2 COOPERATIVE AGREEMENTS AND FACTS
3.2-1 AGREEMENTS, ETC. WITH ORGANIZATIONS OTHER THAN BAS.S.
Cooperative agreements, mutual aid pacts and other special agreements and joint operations may be initiated or agreed upon by the
Federation to adVance the purposes and goals of the Federation, the non-profit rposes and goals of B.AS.S. A written statement of confli ct
from BA.S.S: shall be sufficient cause for dissolution of all such agreements .
. ARTICLE 4. ORGANIZATION AND ADMINISTRATION
4.1 CONSTITUENCY
4.1-1 CONSmUENCY
The cons liluency of the Federation shall indude the citiz:ens of Virginia chapters who are members of B AS.S. The interests of the constituent
members shall, within the purposes and goals of the Federation, be fully represented by the Federation and its officials. BAS.S. membership
shall not alone constitute eligibility to hold elected or appointed offioe in the Federation.
4.1-2 MEMBERS
The members of the Federation are the members in good standing of any of the approved chapters of the Federation. In good standing shall
mean that the member satisfies all of the requirements for membership imposed by B.AS.S., the Federation and the member's chapter.
Members in good standing only shan be eligible to hold offioe in the Federation. E/igibilrty for offioe shall also be conditional upon satisfaction
of an the requirements and quarrfications ifll>05ed in the ConstiMion and By-laws.
4.1-3 CHAPTERS
The chapters of the Federation shall include all of the chapters, dubs, associations and other organizations in the Commonwealth of Virginia
which have been duly chartered byBAS.S. and which satisfies alt of the requirements for chapters imposed by BAS.S. and the Federation.
4.2 REGIONS
4.2-1 REGIONS ESTABLISHED
The area of the Commonwealth of Virginia shall be subdivided into regions suitable for efficient admini stration of the Federation. The Board, in
http://www.vabass.comlfederationlbylaws.htm 12/28/2JlD 1
EXHIBIT 11
EXHIBIT 11
ATTACHMENT TO:
SELF-EXECUTING AFFIDAVIT OF
PAUL BENTON WEEKS III
[28 U.S.C. § 1746]
Bass Boss
THE INSPIRING STORY OF
RAy SCOTT AND THE SPORT
. FISHING INDUSTRY HE CREATED
ROBERT H. BOYLE
Whitetail Trail Press
. Pintlala, Alabama
... ........- - .•.>--.•• .••• ~ - . , . - , ....
202 CHAPTERl7
and access programs. With passage of the amendments, Wallop-Breaux
monies increased from $35 million annually to $102 million annually.
The expansion program was the biggesr boon ever for anglers and has
allowed states to better protect and improve their fisheries.
Ray helped draft the legislation and took on the task of pushing the
amendments on behalf of B.A.S.S. and fishermen everywhere. He was
confident the task could be accomplished in a couple of visits to
Washington - he wasn't called silver-tongued for nothing.
He was wrong and the experience has made him leery of red tape and
bureaucrats to this day. "It took seven years," he says disbelievingly. «For
seven years, I would fly up to WashingtOn regularly, frequently with our
Federation Director Bob Barker. He had the patience oOob, thank God.
We also worked with a wonderful man named Carl Sullivan who was
head of the American Fisheries Sociecy. Sometimes he'd sleep in our
hotel room on the sofa instead of making a late commute to the suburbs.
1'd be' cussing out every polite, pass-the-buck bureaucrat 1'd talked to
that day. Carl really helped me hang in there. Finally, things began to
turn around when I had a friend in Vice President George Bush.
'Til never know for sure wharhappened. Doors were slammed in my
face again and again. For three weeks I tried to see Congressman John
Breaux, of Louisiana, chairman orthe House Subcommittee handling
the legislation. r couldn't even make it through the secretary. It was a
classic stonewall." Ray would later find oUt that the National Marine
Manufacturers Association (NMMA), which he promptly dubbed «en_
ema," was lobbying to block the legislation, fearful of additional taXes on
marine products.
Out of frustration and in a last-ditch effort, Ray called his buddy
George Bush and explained his dilemma. "Bush just said, 'Let me see
what I can do.' The next day I called Congressman's Breaux's office and
the secretary said, 'Oh, Mr. Score, when can you come by?' r immediately
wenr to the congressman's office and was cordially greeted. Over a cup of
coffee in his private office, r starred to explain the benefits of the
proposed legislation, which was then called Dingell-Johnson, and Breaux
said, '[ know all about iL' r asked, -'how do you know?' Breaux said,
i
· 1
FULL THROTTLE 203
'Because I was called Out of a committee meeting yesterday by Vice
President Bush. He told me all about the legislation. What can I do to
help?' From then on it was downhill toward passage. President Reagan
signed the legislation into law in 1984. Every fisherman in the country
owes a debt of gratitude to George Bush. This is juSt one of hundreds of
similar actions by George Bush that no one will ever know about."
RAY DOES NOT consider himself an internationalist but he did get
into another interesting bass battle in the 1970s. And although it's hard
to imagine that bass fishing could become an international political issue,
it did after Ray came face to face with the grim realities of Soviet
communism. Oddly enough, however, the actual battleground was an
ocean away from Russia, in Cuba, a historical fishing mecca.
Cuba has long had the reputation of having the biggest largemouths
on the planet, humongous fish that would top - even dwarf - the
world record twenty-two pound, four ounce fish caught in 1932 by
George Perry in Montgomery Lake, Georgia. Bass are not native to the
balmy, tropical island, but were first brought from Florida in 1915 and
then again in the 1930s, the latter time by the Texans who owned the
King Ranch and had extensive landholdings in Cuba.
In 1959, after Fidel Castro took power, the Eisenhower administra-
tion imposed travel restrictions to Cuba but that didn' t stop fishermen,
among them Ray Scott, from dreaming about fishing there. In the early
1970s, Ray, Bob Cobb, Harold Sharp, Dave Newton, and biologist Sam
Spencer got permission from the State Department to go to Cuba. Ray
was eager to find and to identify the sub-species of bass in Treasure Lake
- were they truly the Florida largemouth, Micropterus salmoides floridanus?
And he had written to Cuba's National Institute of SportS about the
possibility of breaking the world record. The Cuban government not
only failed to give its okay, it never even bothered to answer.
In 1977, the Carter administration eased the travel restrictions, and
Ray got a call from Dan Snow, who had been director of the shon-lived
B.A.S.S. tour enterprise in 1974-75 and who had since opened his own
Latin American fishing tour b\lsiness based in Houston .. Snow asked his
~ .. , , : ~ " - " .. : ..
ABOVE: Bill ·and
Meredith Schroeder
listen to Ray at the Eagles
of Angling Friday night
dinner with an amused
George W. Bush in the
background. Bill sug-
gested building the new
Pintlala Baptist Church
sanctuary.
LEFT: Susan greets
General Brent Scowcroft,
President Bush's friend
and National Security
Advisor, and one of her
iavorite visitors. He
fished as a guest con-
tender in several Eagles
of Angling Tournaments.
" ' ~ " " " " " •..- . , . , - . ~ ~ , ..... ... '.
Ray enjoys sighiseeing with Japanese bass fishing star and tackle shop
entrepreneur Ken Suzuki in Japan in 1995. They were introduced by
tackle manufacturer Bobby Dennis.
Texas Governor George W. Bush visits with Ray at the Governor's
Mansion in Austin on the eve of the demonstration of a mechanical
weed harvester at Lake Bastrop in 1998.
20
The White House Connection
I
T ISN'T EVERY DAY that a President-elect decides [Q go fishing a
, week before his inauguration, but that's what happened on Decem
' ber 29,1988. Vice President George Bush, already a lifer'nember of
B.A.S.S. for nearly ten years, landed in Air Force Two at Maxwell Air
Force Base in Montgomery to go fishing at the SCOtts.
It didn't surprise ,Ray because he knew Bush was an avid fisherman.
During his years in the White House there were those, especially in the
press, who were skeptical about Bush's professed love of fishing, consid-
ering it part of a public relations effort [Q portray him as an "average guy."
They were wrong then and are still wrong. He is an authentic bass fanatic
and general outdoorsman.
"Actually," says Bush. "['ve bee(1 a fisherman for quite a few years,
starting in Texas near Freeport in the early sixties. Ray's the one who gOt
me interested in B.A.S.S. and I bought a life membership. I liked the
magazine and I liked wh<lt the organization was doing for sound conser-
vation practices and fOf the sport of bass fishing in generaL"
As d malltf o((acr, when Bush was campaigning for the presidency in
1988, he was asked in a New York Times interview about his reading
habits, "Me. Bush, what is your favorite magazine)" Without a blink, he
said, "Bassmas.ter." Ray loved iL
Bush confesses, HI don' t get ro fish nearly enough. On a scale of one
232
BA TILE FO R BASS WATERS 261
milfoil and they must be managed very carefully. As a matter of fact, I
would never introduce foreign vegetation into any public waters. Bassmaster
used [Q run articles on ' the horrors of hydrilla, until the fish started
disappearing when it was chemically eradicated, and people began to
understand the intricate ecosystems that develop around this vegetation.
"And, it's not hard [Q understand once you stan investigating. Very
simply, this vegetation creates a rich but delicate ecosystem. Everything
feeds on everything else. Poisons can devastate entire ecosystems in a lake
beginning with the smallest micro-organism. It may take years to recover
and in the ineantime there is a crippled food chain [Q suppOrt a fish
population. And that means there is no quality fishing.
"Can you imagine living in a world with no living plant material? No
grass. No plants. No flowers. No trees. No birds or critters of any kind?
When you virtually destroy aquatic vegetation and habitat, that is what
you do [Q a fish's world.
"When you get down to it, aquatic vegetation is as much a natural
resource as our forests. Fishermen say it's habitat for fish. Naturalists say
it's habi tat for waterfowl. Biologists say it's habitat for both game fish and
waterfowl. Environmental·scientists say it's a narur;l.l filtration system for
lakes and rivers and that it's vital to clean waters.
"So how did we get in this predicament? It's simple" says Ray. "It's
spelled M-O-N-E-Y. Chemicals are big business, like the drug industry.
Some of these herbicides cost $1,000 a gallon. And a gallon doesn't go far
011 a big lake. And let's face it, it's a whole lot easier to put out herbicides
than sweat under the sun on a mechanical harvester.
"Here's how it works. Let's say you are in charge of marketing a new
aquatic weed killer produced by Tox.idync Solutions, a giant of the
chemical industry. Where and how are you going to get the product
introduced to the he asks. "You're not going [Q get the results
you need by advertising in Outdoor Life, or The American Water-Skier.
You may sell a little here and there to people who want to clean out
around the boat dock at their summer cabin, but that's not where the big
bucks are. The really big money for chemical weed-killers comes from
government, and quasi-government agencies and water resource au-
262
CHAPTER 22
chorities, and other agencies that control most of the nation's water-
ways. "
Chemical companies sponsor research by scientists who wind up
endorsing the chemicals under study, points out Ray. Research do.llars
are always hard [0 find, especially in low-prioriry areas. The sponsor
provides the dollars and hasa good chance [0 influence the parameters of
the research, and to get the label okay from the EPA: uThis product is safe
and effective when used according to the label instructions." That
blessing from the EPA is worth millions, maybe billions of dollars [0 the
company that gets it.
The connection between the chemical companies., research scientists,
and government agencies has existed for decades. Without it, most
chemical giants would be mom and pop operations, mixing up stuff on
the kitchen stove. The chemical company, in this case T oxidyne, gets a
good result from Professor Twitch at Kickapoo U., and this research
leads - many millions of dollars and many more hoops later - to the
official registration from EPA. The question now becomes how to sell it.
A chemical company doesn't necessarily call on the agency heads. It
can send its "detail men" to call on employees on the front lines, the
people who actually have to get out on the lake and get rid of the gras.s.
They show them all the paperwork: "EPA-registered," "just use as
directed," "spray it on and then go home."
Over the years, Toxidyne has learned just which bunons to push, just
how to presem its product in order to make the sale. It is worth it ro them.
Millions of dollars are at stake.
"There's no doubt," says Ray "that many times, surgical weed control
is necessary, but that does not justify wiping out the entire vegetated eco-
systems in a lake, down to the smallest micro-organism. When your grass
at home gets too long, you cut it, you don't kill it. Do YOll have to make
a cholce of getting a trim or being bald) Of course !lOt."
Ray thinks there is a better way, and he's giving this better way all the
suppOrt he can muster. For many years weed control has
been used. Lakeside cabin owners in the upper Midwest have employed
BATTLE FO R BASS WATERS 263
. mechanical currers for decades [Q clear the shallows around their docks,
and channels [Q open water.
The technology behind mechanical weed conrrol is clean and simple.
Visualiz.e awheat combine curring througha wheat field, then imagine
setting that currer mechanism on a barge instead of a wheeled chassis and
you've gOt the idea. Provide for raising and lowering the c u t t ~ r head in
the water and solve a few drive and lube problems, and you have a
functioning aquatic grass cutter or harvester. The difference is that a
cutter chops and drops the grass inro the water while, if circumstances
demand, a harvestet brings the grass aboard a trailing barge for shore
disposal.
By the time Ray decided to take up the Lake Bastrop issue, he was
pretty well up to speed on the situation. He was amaz.ed at the diversity
of his allies: everything from bass clubs to a mainline church. The
coalition called itself BAIT for "Bener Aquatics in Texas." Oldham
represented FISH (Fishermen Involved in Saving Habitat), which fit-
tingly joined with BAIT to batrie the threat to Lake Bastrop.
Ray decided there were at least two ways he could help the cause.
With his experience in gathering crowds and in raising money, he took
on those responsibilities. But more immediately he could also call on his
friend, Texas Governor George W. Bush. Ray had come to know the
governor well through his friendship with his father, the former Presi-
denr. Both Bushes are life members of B.A.S.S.
Ray called the Governor and said, "Governor, I'm calling to ask for
a stay of execution on Lake Bastrop." He explained the situation and
asked the governor to use his office to postpone the poisoning of Lake
Bastrop. "We just wanr the chance to demonstrate the effectiveness of
mechanical harvesting," Ray said. 'This way the lake could be managed
and trimmed with barber's dippers as opposed to being nuked."
Ray knew the evidence was mounring in support of mechanical
control over toxic chemicals. A new study in the February 1998 issue of
Fisheries, published by the American Fisheries Society, underscored his
point. A team of scienrists, led by Mark H. Olson of Cornell University
264 CHAPTER 22
and Stephen R. Carpenter of the Universiry of Wisconsin, found that
cutting a series of deep, evenly spaced channels in the near-shore grass of
four experimenrallakes - in contrast to nine control lakes - increased
the growth rates of bluegill sunfish and largemouth bass.
Governor Bush contacted the river authority, which immediately
granted the delay. With Harold Sharp's help, Ray borrowed a mechani-
cal harvester and its operator from TVA. It cost $8,000 to haul the
machine from Tennessee to Texas. With help from his friends in BAIT,
Ray organized a phone tree that quickly raised the money in donations of
$1 to $20 from hundreds of fishermen and others across the country.
In short order, the machine was afloat in Lake Bastrop. Finingly,
Governor Bush came over from Austin for the demonstration, climbed
aboard, got in the driver's seat, and piloted the harvester across the lake
clipping grass as he went. "It's very effective," he said, as the cameras
rolled. "We cut a lot of hydrilla in a very short time."
Shordy after this demonstration, the LCRA placed an order for a
$200,000 srate-of-th·e-art harvester of its own. "As the governor said,"
Ray commented, "it's time for new thinking."
New thinking indeed. Sparky Anderson of Clean Water Action, a
member of BAIT, says that as ofJanuary 31, 1999, "There has not been
a chemical sprayof significant size by any large river authoriry in the past
year." Furthermore, a new organization has sprung up to take BAIT's
message nationwide. [t is called SMART, for "Sensible Management of
Aquatic Resources Team."
Meanwhile, back home in Alabama, Ray staged a pre-emptive strike
against any further poisoning in rivers and lakes across the country. He
enlisted the help of Harold Sharp, who had organized a highly successful
1993 anti-herbicide parade in Chattanooga for the benefit of the TVA.
Ray and Harold organized a "Grass Parade" from Scottsboro to the
shores of Lake Guntersville that drew 731 boats from fourteen states. It
included a large contingent of Texans.
'The name of the game is education," Ray says. "We have to spread
the word. As more and more people understand that there's no need
risking destruction of fish habitat, drinking chemicals, swimming in
292 CHAPTER 24
home and told Susan what an incredible experience it was. I was so glad
co be there."
Ie was a parricularly emotional moment when California angler Mike
Folkestad, a former Classic contender and Eagles of Angling parricipant,
presented Ray with a plaque that read:
"With our deepest appreciation and warmest welcome to Ray SCOtt,
Founder, Bass Anglers Sportsman Society. Your inspiration, creativity
and leadership has brought America's finest fishermen into an arena of
competition and camaraderie that is unparalleled - anywhere. We are
forever grateful- forever loyal. From the bass fishermen of the West,
presenred at the B.A.S.S. California Delta Invitational, September 30,
1997."
B.A.S.S. was to discover not only avid fishermen in California, but
outstanding fishing as well. In the Aptil 1999 tournament, again at the
Delta, tournament records were broken. The largest one-day, five-fish
creel ofJhirry-four pounds, seven ounces was brought in by Mark Tyler
and included the largest tournament bass ever offourreen pounds, nine
ounces.
California also claims another record bass - a twenty pound, fifteen
ounce monster - caught by David Zimmerlee at San Diego's Lake
Miramar in 1973. Ray has a mounted replica in his office and has had
great fun with it. At Ol}e point he pulled it out of a boat while fishing with
President Bush. Several non-fishing reporrersexcitedly snapped pictures
and rook notes. However, skeptical heads prevailed and it made the
papers as a gag.
In 1997, Ray finally met Zimmerlee at a Triton Boat Show in Kansas
City. Follo\,/.ing an enjoyable conversation, Zimmerlee graciously sent
Ray the Zebco 33he caught the big fish with and it now sits in his office
near the mount of the fish.
Another tribute came Ray's way in 1998 when he was in Texas for the
weed harvester demonstration at Lake Bastrop. After Governor George
w. Bush rode the harvester, he invited Ray ro the Austin mansion for a
private supper with him and his chief of staff, Joe Allbaugh . .
Ray was srruck by the unpretentious warmrh of the Governor's
SAILING INTO THE SUNRISE 293
mansion. bur even more so by [he wonderful irony [hat he was with [he
son of a man he so admired. rwenry years after [he elder Bush had made
a run for [he presidemial nomination. And in 1999 his son was poised w
do [he same.
Governor Bush is an avid fisherman and a life member ofB.A.S.S. In
his swdy after dinner, he showed Ray a gubernarorial campaign video
commercial [hat opened with him fishing in his bass boar. When i[ was
over, Ray recoums. "George W. wId me [hat outside his father and
family, [he (wo men who had had [he most profound effect on his life
were Billy Graham and Ray Scon. One had [aught him about faith and
[he other about bass fishing.
"And [hey borh mean a lo[ in his life," says Ray. "When you get down
w it, fishing is a way of being close [0 God. It was one of [he highest
compliments I have ever been paid." Old friend Dave New[on says [he
accolade is well deserved. "How many men can say [hey rouched millions
of lives in such a positive way?"
And remarkably. j[ had all grown from Ray's rainy day vision, four
precious n;mesand a [hree-by-five metal file box of "hand-carved
names."
"I had so much help along [he way," says Ray. "There were many.
many fine people who extended a helping hand."
One of those helping hands came from Homer Circle. [he long[ime
angling editor of Sports Afield. He believed in Ray SCO[[
and B.A.S.S. from [he beginning. In 1967 Homer offered a benediction
a[ the conclusion of [he banquet a[ Ray's very first All-American Bass
Tournament a[ Beaver Lake. I [ was a riwal that would become a
cradition at the many Classics he attended through [he years.
A copy of this prayer is one of Ray's favorite keepsakes. And i[ sums
up much of his feelings for the spon and [he men and the faith [hat has
driven him since that rainy day in Mississippi . Here is what "Uncle
Homer" prays:
Almighty and all-loving father. we fishermen [hank Thee for
blessings of Thy great outdoors. especially [he privilege [0 pursue our
... _ '.r •. ". __ •• ", . •
" ".
EXHIBIT 12
EXHIBIT 12
. ATTACHMENT TO:
SELF-EXECUTING AFFIDAVIT OF
PAUL BENTON WEEKS III
[28 U.S.C. § 1746] .
) .
/
/
MORRIS DEES, .JR.
ATlO"""EV ""NO AT LAW
,lJJc ",TlAkfA H'CHwA'"
' . o . eO);; ').l 0 "6
MONTnOMERY.ALABAMA
July 9, 1970
Mr. Ira DcMent
United States District Attorney
Middle ·District of Alabama
Federal nuilding
Montgomery, Alabama
Dear Ira:
HI.£/'HOfolE 172
I represent the Bass Anglers Sportsman Society of America,
Inc. (DASS). this is a national association of bass fishennen
with over 11,000 members in all 50 states. Mr. Ray Scott is
national president. The national headquarters are located at
1616 Mt. Road, Montgomery, Alabama. . .
nASS respectfully infonns you, as United States District
Attorney, that the attached list of companies, and other entities,
are depositing refuse into navigable streams or their tributaries
wi thout a penni t from the Secretary of the Arrrly, and are in vio-
lation of Tit. 33, U.S.C. 407. (Exhibit A). president,
Mr. Ray Scott r s affidavit to this effect is also attached. (Exhi-
bit B).
BASS requests your office to take action at your earliest
convenience against these companies and other entities. BASS
hereby makes a claim for one-half of any fines that might be uiti-
mately levies against these offenders as authorized by Tit. 33, U.
S.C. 411.
Should your office need assistance in thiscGse, please contact
me . and I r 11 gladly make the information BASS has .avai1able to you.
Your attention is called to the case of United v. Standard
Oil Company, 304 U.S. 22
1
1, 16 L. ed. 2d·492, ·86 S. Ct.l427 (1966).
The gravamen of the crime is depositing refuse without a permit and
should be easy to prove.
cc: Col. Harry A. Gr{ffith
Corps of Engineers
StGnley Risor
Secre t<1ry of the Army
Sincerely,

Morris Dees
r X II I II I T
. -
EXHIBIT 13
EXHIBIT 13
ATTACHMENT TO:
SELF-EXECUTING AFFIDAVIT OF
PAUL BENTON WEEKS III
[28 U.S.C. § 1746]

1308
253 FEDERAL REPORTER, 3d SERIES
TAIL DEFENDANTS INCLUDING
THOSE THAT EMPLOY PHARMA-
CISTS WHO SELL CIGARETTES
FOR CLAIMS BROUGHT UNDER
THE ALABAMA EXTENDED MANU-
FACTURER'S LIABILITY DOC-
TRINE, OR PREMISED ON NEGLI-
GENCE, WANTONNESS, OR CML
CONSPIRACY UNDER ALABAMA
LAW.
[7] Our phrasing of the question is not
intended to restrict the scope or inquiry by
the Supreme Court of Alabama. As we
have stated recently in Spain v. Brown &
Williamson, 230 F.3d 1300 (2000):
[T]he particular phrasing used in the
certified question is' not to restrict the
Supreme Court's consideration of the
problems involved and the issues as the
Supreme Court perceives them to be in
its analysis of the record certified in this
case. This latitude extends to the Su-
preme Court's restatement of the issue
or issues and the manner in which the
answers are to be given, whether as a
comprehensive whole or in subordinate
or even contingent parts. Blue Cross &
Blue Shield of Alabama, 116 F.3d at
1414 (quoting Martinezv. Rodriquez,
394 F.2d 156. 159 n. 6 (5th Cir.1968)
(citations omitted». That means, among
other things, that if we have overlooked
or mischaracterized any state law issues
or inartfully stated any of the questions
we have posed, we hope the Alabama
Supreme Court ',\iJl feel free to make
the necessary corrections.
Spain, 230 F.3d at 1312.
The entire record, including the briefs of
the parties, is transmitted herewith.
QUESTION CERTIFIED.
Bradley MURRAY, as a member and
legal representative of the .Bass An-
glers Sportsman Society, Plaintiff-Ap_
pellant,
v.
Ray W. SCOTI', Jr., BA.S.S., Inc.,
et al., Defendants-Appellees.
No. 99-12194.
United States Court of Appeals,
Eleventh Circuit.
June 13, 200 1.
Member of unincorporated sporting
association brought class action against of-
ficers of similarly named corporation for
conversion and misappropriation. After ac.
tion was transferred on defendants' mo-
tion, plaintiff filed motion for recusal of
judge. The United States District Court
for the Middle District of Alabama, No. 94-
0l266-CV-D-N, Ira De Ment, J., 929
F.Supp. 1461, denied motion, and subse-
quently entered summary judgment for
defendants, 50 F.Supp.2d 1257. Plaintiff
appealed. The Court of Appeals,
Edmondson, Circuit Judge, held that Dis-
trict Court judge should have recused him-
self based on fact that, while serving as
government attorney, he had appeared as
counsel of rec-r)rd in action in which corpo-
ration was party, possibly giving him
knowledge of facts disputed in instant ac·
tion.
Vacated and remanded.
1. Judges <>51(4)
Under federal judicial disqualification
statute, benefit of doubt must be resolved
in favor of recusal. 28 U .S.C.A. § 455.
MURRA Y v. SCOTI'
1309
Cite as 253 F.3d 1308 (II tli Cir. 2001)
2. Federal Courts <&=>819
Court of Appeals re\iews for abuse of
discretion judge's decision ",hether to re-
cuse himself. 28 § 455.
3. Judges e=>5l(4)
Wben federal district court judge con-
siders recusal, he must consider his poten-
tial confljct with regard to overall case, not
just v:ith regard to each separate issue or
each stage of litigation. 28 U.S.C.A.
§ 455.
4. Judges e=>47(I)
Disqualification of federal district
court judge was required, in conver-
sion/misappropriation case brought by
member of unincorporated sporting associ-
ation officers of similarly named
corporation, where judge, while serving as
government attorney, had been counsel of
record in corporation's suit against govern-
ment and alleged industrial polluters;
judge's involvement in earlier action couJd
have .given him !mowledge of disputed
facts in suit, including whether
corporation was originally founded as unin-
corporated association. 28 U.S.C.A.
§ 455(b)(1, 3).
5. Judges e=>47(1)
Federal district court judge who pre-
yiously served as counsel of record for
related case may be disqualified on that
basis. 28 U.S.C.A. § 455(b)(1, 3).
6. Federal Courts <&=>541
Court of Appeals lacked jurisdiction to
review transfer decision made by district
court in another circuit.
* Honorable Norma L. Shapiro. U.S.' District
Judge for the Eastern District of Pennsylva-
Randall Fisher, Nev.rton, KS, for Plain-
tiff -Appellan t.
Letitia M. Brov"l1 , Joseph B. Haynes,
Michael R. Smith, King & Spalding, J.
Allen Maines, Eric C. Lang, G. Mark Cole,
Paul, Hastings, Janofsky & Walker, LLP,
Atlanta, GA, John H. Morrow, Matthew H.
Lembke, Bradley, Arant, Rose & White,
LLP, Jayna Partain Lamar, Maynard,
Cooper & Gale, PC, Birmingham, AL, C.C.
Torbert, Jr., Maynard, Cooper & Gale,
P.C., Montgomery, AL, for Defendants-
Aopellees.
Appeal from the United States District
Court for the Middle District of Alabama.
Before EDMONDSON and BIRCH,
Circuit Judges, and SHAPIRO*, District
Judge.
EDMONDSON, Circuit Judge:
This appeal is about judicial recusal.
Because we conclude that the district court
judge should have recused himself from
this case, we vacate the judgment and
remand for further proceedings.
I.
Plaintiff Bradley Murray, a member of
the Bass . Anglers Sportsman Society
(BASS), brought suit individually and on
behalf of approximately 500,000 other
BASS members against Bass Anglers
Sportsman Society, Inc. (BASS, Inc.) and
its officers, claiming that BASS, Inc.
fraudulently converted BASS funds and
nia, sitting by designation.
1310
253 FEDERAL REPORTER, 3d SERIES
property.1 Plaintiff initiated the litigation
in the district court of Kansas, but the
Kansasctistrict judge transferred the case
to the Middle District of Alabama. Mur-
ray v. Sevier, 156 F.R.D. 235, 257 (D.Kan.
1994). The case was assigned to Judge
Ira De Ment. Relying largely on some
acts that Judge De Ment had taken in
regard to BASS before he became a judge,
Plaintiff moved to recuse Judge De Ment;
the motion was denied.
In his fifth amended complaint, Plaintiff
claimed that when Defendant Ray W.
Scott, Jr. first formed BASS in 1967, it
was an unincorporated association dedicat-
ed to promoting conservation and bass
fishing. BASS sponsored bass fishing
tournaments and communicated with its
members through BASS Masters Maga-
zine. In 1969, Scott filed a certificate of
incorporation for BASS, Inc. under the
laws of Alabama. Plaintiff claims that
Scott convinced potential members that
they were joining a non-profit entity devot-
ed to promoting bass fishing, conservation,
and youth fishing when they were actually
joining BASS, Inc., a for-profit entity.
Plaintiff claims that under this "shell
game" Scott was siphoning off members'
dues for his own personal benefit. Defen-
dant responds that BASS was founded as a
membership club owned and operated for
profit by Scott.
Both sides filed summary judgment mo-
. tions on various grounds. The district
1. We may at times refer to BASS and BASS,
Inc. as BASS. But our reference
to BASS or BASS, Inc. in this opinion carries
no legal significance, and we make no legal
determination about the status of BASS or
BASS, Inc.
2. Judge De Ment characterized the threshold
issue as "whether Plaintiff has met his burden
and proven that BASS, prior to its incorpo-
ration in 1969, was created as an unincorpo-
rated association." Murrav v. Sevier, 50
F.Supp.2d. 1257, 1274 (M.D.Ala. 1999J. Thus,
court granted summary judgment for De-
fendants and certified the order for appeal
under Fed.R.Civ.P. 54(b).
II,
[1,2] Plaintiff argues that Judge De
Ment abused his discretion when he did
not recuse himself from this case under 28
U,S.C. § 455. Congress amended the re-
cusal statute in 1974, which "liberalize[d]
greatly the scope of disqualification in the
federal courts," United States v. State of
Alabama, 828 F.2d 1532, 1541 (lIth Cir.
1987). Under section 455, a judge has a
"self-enforcing obligation to recuse himself
where the proper legal grounds exist." I d.
at 1540. Most· important, the benefit of
the doubt must be resolved in favor of
recusaI. Id. We review a judge's decision
to recuse for abuse of discretion.
McWhorter v. City of Birmingham, 906
F.2d 674, 678 (11th Cir.1990):
A..
[3] AB an initial matter, both parties
have argued that the charac;terization of
the "threshold" issue of the merits portion
of the litigation is relevant to determine
whether Judge De Ment should have been
recused.
z
But when a district judge con-
siders recusal, he must consider his poten-
tial conflict with regard to the overall case,
to resolve the threshold issue, only evidence
before the 1969 incorporation was relevant,
and the later 1970 BASS lawsuit in which
Judge De participated was "'not relevant
to the present determination." [d. Because
Judge De Ment concluded that BASS was not
operating as an unincorporated association in
1967, he never reached the ultimate issue and
instead dismissed the case. So Judge De
Ment considered no evidence of which he
allegedly had prior knowledge or partie·
ipation.
',;' , .....
MURRA Y v. SCOrf
1311
Cite as 253 F.3d 1308 (111h Cir. 200 I) .
not just his potential conflict for each sepa-
rate issue or each stage of the litigation.
See United Statesv. Feldman, 983 F.2d
144, 145 (9th Cir.1992) ("[W]hen a judge
detennines that recusal is appropriate it is
not within his discretion to recuse by sub-
ject matter or only as to certain issues and
not others."). Thus, even though some
historical evidence . involving Judge De
Ment may not have been pertinent to re-
solye the threshold issue (whether BASS
was created as an unincorporated associa-
tion), such evidence-depending on how
De Ment resolved the threshold issue-
might become relevant to the ulti-
mate issue: whether BASS Inc. fraudu-
lentlyabsorbed the assets of BASS. So we
must review Judge De Ment's decision not
to recuse himself in the light of the ulti-
mate issue in the case at the time of
recusaL That Judge De Ment defined and
ruled on a potentially dispositive threshold
issue means nothing to our review of
Judge'De Ment's recusal decision.
3
B.
Plaintiff points to a series of facts that
Plaintiff says require Judge De Ment's
recusal in this case. First, in 1970, Morris
Dees, an attorney representing BASS,
mailed a letter to De Ment, then United
States District Attorney for Uie Middle
District of Alabama, informing De Ment
that some companies were depositing re-
fuse into streams without a permit, alleg-
edJy in violation of 33 U.S.C. § 407. Dees
referred to his client as "Bass Anglers
Sportsman Society of America, Inc." but
3. We note that Judge De Ment ruled on the
recusal issue in March, 1996, but did not
define or rule on the "threshold issue" until
June 1999.
4. The suit was ultimately dismissed for lack of
standing because the statute that plaintiffs
also described the entity as CIa national
association of bass ' fishermen." Plaintiff
argues that this letter shows that in 1970,
Defendant held itself out to De Ment as a
national association and failed to reveal its
for-profit status.
Second, De Ment, in 1970, was men-
tioned in the complaint . and served as
counsel of record in an unsuccessful civil
suit filed by BASS against industrial
plants and the government for dolation of
33 U.S.C. § 407. See Bass Angler Sports·
man Society v. United States Steel Corp.
324 F.Supp. 412, 413 (S.D.Ala.1971). At-
torney Dees' letter to De Ment served as
the prerequisite for the lawsuit and was
attached to the 1970 complaint in an effort
to establish standing to enforce the federal
statute.
4
Third, as counsel of record in the 1970
litigation, De Ment filed a brief on behalf
of the government defendants. The cap-
tion of that brief lists the plaintiff as "Bass
Anglers Sportsman Society, Inc.," but then
refers to the plaintiff as "Bass Anglers
Sportsman Society" in the body of the
brief. Plaintiff argues that this brief dem-
onstrates that De Ment, as counsel of rec-
ord in federal court, took the position that
BASS · and BASS Inc. existed as the same
entity.
Fourth, Plaintiff notes that during a sta-
tus conference in the present case, Judge
De Ment referred to BASSIBASS as a
business. Also, during the summary judg-
ment hearing, Defendant said that BASS
Inc. fIled the 1970 BASS lawsuits; but
sought to enforce provided only for criminal
sanctions: no civil action existed to enforce it.
BA.s.S., 324 F.Supp. at 415. The issues of
associational standing and the status of plain·
tiff as an unincorporated association or a for-
profit corporation were not litigated.
1312 253 FEDERAL REPORTER, 3d SERIES
Judge De Ment recalled seeing a television
interview where Scott and Dees claimed to
have filed the lawsuits.
Fifth, Plaintiff alleges that Judge De
Ment shares a 30-year friendship with
Dees and that he is associated with people ·
known to be politically associated with
Scott.
C.
Plaintiff says that these facts implicate
the federal recusal statute. 28 U.S.C.
§ 455. Section 455(b) requires disqualifi-
cation under for ex-
ample, when a judge has "personal knowl-
edge of disputed evidentiary facts,"
§ 455(b)(1), when a judge "served in gov-
ernmental employment and '. .. participat-
ed as counsel ... concerning the proceed-
ing," § 455(b)(3), or when a judge is "likely
to be a material witness in the proceed-
ing." § 455(b)(5)(iv).5 Under this provi-
siDn, recusal is mandatory. In such situa-
tions, "the potential for conflicts of interest
are readily apparent.'; State of Alabama,
828 F.2d at 154l.
[4, 5] Plaintiff argues that Judge De
Ment has personal knowledge of disputed
5. Plaintiff also relies on section 455(a). which
requires a federal judge to " disqualify himself
in any proceeding in which his impartiality
might reasonably he questioned ." 28 U.S.c.
§ 455(a). We do not rely on the appearances
test· to decide this case.
For a criticism of ;,; 'pearance ethics, see
P.W. Morgan & G.H. Reynolds. T/1e Appear-
ance of/mproprien' (1997).
6. Plaintiff also points to statements made by
Judge De Ment that he had observed pertinent
representations made by Scott and Dees on
television. But we doubt that Congress in-
tended to disqualify judges based on represen-
tations that a judge saw on television years
before the case was flied in his court .
Plaintiff also argues that Judge De Ment' s
associations with Dees and Scott create an
appearance of impropriety that warrants reo
evidentiary facts . based on his involve_
ment with the 1970 litigation, in which De
Ment participated · as counsel of record,
fJ.led a brief, and received a letter from a
BASSIBASS, Inc. attorney.6 A district
judge who previously served as counsel of
record for a related case may be disquali-
fied. State of Alabama., 828 F.2d at
1545-46. State of Alabama involved the
desegregation of Alabama's higher edu-
cation institutes under Title VI. The
case was assigned to Judge Clemon.
who-as a lawyer-had previously repre-
sented different plaintiffs in another Tille
VI desegregation case against some of
the same defendants. Although Judge
Clemon explained that his involvement
was limited to representing black high
school principals (who were not parties to
the State of A.labama litigation) in a race
discrimination suit,' we concluded that
U[e]ven this limited involvement . [] left
Judge Clemon with knowledge of facts
that were in dispute in the instant case."
Id. at 1545. Even though the underlying
issue in State of Alabama (desegregation
of state institutes of higher education)
was not about racial discrimination
cusaJ. Judge De Ment 's relations with these
persons, when viewed in the light of the over.
all circumstances. probably do riot creale
even an appearance of impropriety. We have
previoush' recognized that "an inescapabk
part of our S\'stem of government (is) that
judges are primarily from laWyers who
have participated in public and political af·
fairs ." Slate of Alabama, 828 F.2d at 1543
(quoting Curry I '. Baker, 802 F.2d 1302 (lIth
Cir.1986) (Vance, J . mem.»). And we cannot
expect, nor do \\'e require, judges to eliminat..:
all relations outside of their judicial roles .
7. The case on whi ch Judge Clemon worked
was one of many cases captioned Lee v .. A..Jv ·
call Coullly 3d. of Educ., some of which did
not include the claims against higher edu·
cation institutes.
.... ..... : ... :
;:
, .
MUR RA Y. v. SCOTI'
1313
Cite as 253 F.3d 1308 (II th Cir. 2001)
against high school principals, the ques-
tion of whether black ' high school princi-
pals suffered racial discrimination ulti-
mately became a factual issue in the case;
and the plaintiff presented testimony and
exhibits about the status of the state's
black high school principals. Thus, Judge
Clemon was confronted v.ith evidence
about which he had prior knowledge
based on his role as counsel of record in
a separate lawsuit.
Likev..ise, Plaintiff argues that represen-
tations made during the 1970 BASS litiga-
tion in which Judge De Ment was then
counsel of record may potentially become
an issue in the present litigation. This
contention seems plausible. If the district
court had concluded that BASS was an
unincorporated association in 1967, then
Plaintiff apparently would have used the
complaint in B.AS.S. v. United States
Steel Corp, the letter to then U.S. Attor-
ney De .. Ment, and the brief filed by De
Ment as eVidence that Defendant held it-
self . out as an association when it was
actually operating as a for-profit company.
The St.ate of Alabama decision leads us
to require recusal here. Because of Judge
De Ment's involvement in the earlier
BASS litigation, Plaintiff has shown that
Judge De Ment may have knowledge of
facts in dispute in the present case. That
the undedying issue in the present case
was not litigated in the 1970 litigation
makes no difference. Plaintiff hopes that
the evidence may show that in the 1970
BAss litigation, BASS represented 'itself
both as an unincorporated association and
a for-profit corporation to then U.S. Attor-
ney De Ment and that De Ment accepted
BASS and BASS, Inc. as the same entity.
8. Defendants suggest in a footnote that, even
if Judge De Ment should have disqualified
himself, any error was harmless. See Lilje-
berg v. Health Servs. Acquisilion Corp., 486
U.S. 847, 108 S.Ct. 2194, 2203-5, 100
LEd.2d 855 (J 988) ; Parker v. Connors Steel
/
And even if Judge De Ment cannot now
recall the specific facts about his involve-
ment in the 1970 BASS litigation, his mem-
ory might h,lVe sharpened as the litigation
advanced. More important, the record is
strong enough to presume personal knowl-
edge of facts by virtue of his having partic-
ipated as counsel of record in the 1970
BASS litigation, litigation that-given the
arguments of (that is,
might affect) this proceeding. Doubt must
be resolved in favor of recusal.
We appreciate that judges are often re-
luctant to recuse themselves and, thereby,
to send a tough or unpleasant case to a
colleague. Furthennore, we do not decide
or hint today that Judge De Ment either
has acted unfairly to the parties as he
ruled on this case or has utterly disregard-
ed his ethical duties. We also recognize
that this litigation spans nine years, two
states, and' numerous The record
as already developed is extensive. The
federal jucliciary has already devoted con-
siderable time and resources to resolve
this litigation. So, many factors make re-
cusal an unattractive course. But Con-
gress has directed federal judges to recuse
themselves in certain situations, and we
accept that guidance. Judges must not
recuse themselves for imaginary reasons;
judge shopping should not be encouraged.
Still, federal judges must early and often
consider potential conflicts that may ' arise
in a case and, in close cases, must err on
the side of recusal.
8
And if a judge must
step aside, it is better to do it sooner
instead of later.
III.
At oral argument, Plaintiffs counsel
suggested that we must still resolve the
Co., 855 F.2d 1510,1526-27 (11th Cir. 1988).
Because of the many rulings by Judge De
Ment that pre-dated the summary judgment
decision. see. e.g., Murray v. Sevier. 50
F.Supp.2d 1257 (M.D.Ala.1999); v.
Sevier, 993 F.Supp. 1394 (MD.Ala. 1997).
1314
253 FEDERAL REPORTER, 3d SERIES
transfer issue even if we concluded that
Judge De Ment should be recused. We
disagree.
[6] Both Plaintiff and Defendants have
spent a considerable portion of their briefs
arguing the merits of the Kansas court's
transfer order. But we "lack[] appellate
jurisdiction to review the decision of a
district court in another circuit," Roofing
& Sheet Metal Serv., Inc. v. La Quinta
Motor Inns, 689 F.2d 982, 986 (lIth Cir.
1982). See also Moses v. Business Card
Express, Inc., 929 F.2d 1131, 1136 · (6th
Cir.l991); Linnell v. Sloan, 636 F.2d 65,
67 (4th Cir.1980). Plaintiff followed the
proper avenue of review by filing a petition
for mandamus in the Tenth Circuit to en-
join the transfer. A two-judge panel from
the Tenth Circuit denied the writ of man-
damus. Further review of that decision
must be pursued to the Supreme Court.
. If our recusal decision had gone the
way, we would have jurisdiction to
review the Plaintiffs motion in the Middle
District of Alabama for transfer back to
the Kansas district court. See Roofing &
Sheet Metal, 689 F.2d at 989 ("[T]his court
would naturally have jurisdiction to review
the disposition of [a motion to retrans-
fer ]."). See also Brock v. Entre Computer
Ctrs., Inc., 933 F.2d 1253, 1257 (4th Cir.
1991); Moses, 929 F.2d at 1136. Becau;e
we conclude that Judge De Ment should
have recused himself. we will not review
the substance of his denial of Plaintiffs
motion to retransfer. But we note that
"[i]f the transferee court can find the
transfer decision plausible, its jurisdiction-
al inquiry is at an end." Christianson v.
Colt Indus. Operating Corp., 486 U.S. 800,
108 S.Ct. 2166, 2179. 100 L.Ed.2d 811
(1988) (concluding that adherence to law of
some of which involved exercises of discre-
tion, \'ie conclude that the harmless error
standard is practically unworkable and, thus,
inappropriate here. See Liljeberg, 108 S.Ct. at
the case docbine obviates the need to reo
view "every marginal jurisdictional di.'i-
pute."); see also Doko Farms 11. United
States, 861 F.2d 255, 256-57
("[Appellee]'s argument persuades us that
the [transfer] question is close. Under
such circumstances, to engage in a full
review would be contrary to law-of-the-
case principles.").
VACATED and REMANDED for a..'i-
signment to another district judge in lh(.
Middle Disbict of Alabama and for further
proceedings.
Herbert H. DAVIS, Plaintiff-Appellee,
v.
NATIONAL MEDICAL
ENTERPRISES, INC.,
Defendan t-Appe llan t.
National Medical Enterprises, Inc., a
foreign corporation authorized to do
business in the State of Florida.
Plaintiff-Appellant,
v.
Susan Da"is., Bessemer Trust, personal
representatives of the estate of the
"Herbert Davis Marital Trust 'B' Un-
der Agreement Dated January 10,
1991", Defendants-Appellees.
\" o. 00-1218l.
United States Court of Appeals,
Eleventh Circuit.
June 15, 2001.
Post-tlial motions for attorney f€es
arising out of indemnification claim under
2205 C[Harmless error] relief is [1 neither
categorically available nor categorically un·
available for all § 455(a) violations. ").

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