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UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

!

MARTIN A. ARMSTRONG

Plaintiff

- v -

09 - 5370

HARLEY LAPPIN ,et al

DIRECIDr OF FEDERAL BUREAU OF PRISONS Respondent

MOTION TO SUPPLEMENT AND EXPEDITE THE PENDING MOTION FOR BAIL, CHANGE IN CUSTODY TO HOME CONFINEMENT, OR TO STAY THE EXECUTION OF THE SENTENCING PENDING APPEAL IN LIGHT OF

A CHANGE IN CONSTITUTIONAL LAW BY THE SUPREME COURT

I, Martin A. Armstrong, pro se (herein "Armstrong"), respectfully move to

secure LIBERTY that is the most precious fundamental right in light of a arbitrary

nonstatutory imprisonment that is contrary to law and the federal constitution.

Armstrong respectfully submits that (1) there is absolutely no statutory authority

to deny credit whatsoever under 18 USC §3585(b) for there is no grant of discretion

to Harley Lappin to create a Program Statement 5880.28 to carve out any exception

when he and the Bureau of Prisons ("BOP") are confined

by 18 USC §4001(a) to

imprison anyone with statutory authority from ONLY Congress, 18 USC §3621(c) requires

the production of a commitment order showing statutory authority to exclude 7.5

years which cannot be produced, and 18 USC §3621(a) prohibits the BOP from imprisoning

anyone beyond the "expiration of the term imposed',' which was 5 years, not 15 years,

(2) that the BOP has persistently denied Armstrong the ability to print out any

discovery from about 130 computer CD-ROMS that constitute new exculpatory material

in light of Morrison v National. Australia Bank, 561 US - (2010), since the government

has conceded that nothing was solicited in the United States, nor was there a listed

American security, and the CD-ROMS contain a wealth of documents showing that the

private notes had to be individually approved by the Japanese Ministry of Finance

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BEFORE any note could issued meaning there could have been NO Securities violation,

nor a Commodity Violation, or any conspiracy whatsoever, and (3) Armstrong is

seriously ill and is being denied medical care as a personal conflict with a Doctor

A. Lopez and the BOP insists that there is no right for a prisoner to obtain a second

opinion, pay for his own medical care, or be taken to an independent doctor insisting

there is no absolute right to medical care when a lab report taken by the BOP and

two other staff members tried to prescribe medical antibiotics and Dr. Lopez refuses

medical care and says she is the boss and she "will not be intimidated" by anyone

else including medical staff.

Armstrong thus seeks to supplement and expedite the pending motion for bail

pending appeal, change in custody to home confinement, or to stay the execution of

the sentence he contends he has already served two times over. In light of the new

Supreme Court case Morrison, Armstrong is being denied his access to the courts by

the BOP and urgently needs to address the issues to enable Armstrong to gain access

to his exculpatory material that has now changed in light of Morrison, and now

constitutes a serious violation of Brady v Maryland, 373 US 83 (1963). It is now BOP

policy that inmates cannot use a computer at Fort Dix for legal writing, printing,

or preparing discovery to access the courts (Exhibit &). Armstrong thus moves for

relief by bail pending appeal, change in custody allowing the sentence to run in

home confinement, or to stay the execution of the sentence to allow Armstrong to

freely access the courts at last and to seek emergency medical care,denied by the

BOP.

THER IS NO STATUTORY AUTHORITY TO IMPRISON

ARMSTRONG AND THE BOP REFUSES TO COMPLEY WITH THE PLAIN LANGUAGE OF A NON DISCRETIONARY STATUTE VIOLATING THE

NON-DETENTION ACT AND THE EIGHTH AMENDMENT

It is beyond question that there is no such arbitrary power to imprison citizens.

The Eighth Amendment Cruel and Unusual Punishment Clause has defined that such a

violation takes place when there is no statutory authority constituting an "UNUSUAL"

Punishment Harmelin v Michigan, 501 US 957, 974-75 (1991). Congress itself has also

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enacted 18 USC ~4001(a) known as the Non-Detention Act stating "No citizen shall be

imprisoned or otherise detained by the United States except pursuant to an Act of

Congress." Yet, no matter what Armstrong has said, presented, or objected to, the

presumption of arbitrary power to imprison at will by the Respondent supersedes even

the oath of office that he swore to defend the very instrument he ignores. The

Respondent has has had the audacity to presume unlimited power to imprison anyone

and has no commitment order authorizing the denial of 7.5 years of civil contempt

confinement post-indictment that is clearly within the scope of 18 USC §3585(b)(2)

and the fact that the contempt was related to the very case and charged in the

indictment as an obstruction of justice (Exhibit A) that was dropped, it is also

within the plain language of §3585(b)(I). Without any statutory authority whatsoever,

the Respondent has created an exception to §3585(b) to ignore civil contempt and thus

has ignored §4001(a) and the Eighth Amendment that both require statutory authority

to imprison a citizen. The Respondent has made his own exception absent any statutory

authority whatsoever that is entirely contrary to the foundation of the Constitution.

"In our society liberty is the norm." US v Salerno, 481 US 739, 755 (1987).

"Detention beyon the expiration of court-imposed sentences occurs

in Communist China where 'public security organs [have] the authority to impose as well as administer punishment' and 'the discretionary power to extend the duration of imprisonment beyond the original sentences."

McNeil v Patuxent Institution, 407 US 245, 254 n.3 (1972)(concurring opinion)

The Respondent has simply dictated his policy in a Program Statement and will

not listen to any reason and adopts the position that he can imprison beyond a

court sentence as was done in Communist China on pure personal discretion.

PROGRAM STATEMENT 5880.28

Time spent serving a civil contempt sentence prior to trial and/or sentencing does not constitute presentence time credit toward the sentence that is eventually imposed.

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The Respondent insisted that Armstrong had to Exhaust Administrative remedies

knowing full well there were no such remedies. The Remedy Process does not allow for

staff to overrule a Program Statement and the Supreme Court held that one cannot be

forced to exhaust administrative remedies that are unconstitutional, Green v Inmates

of the Nebraska Penal & Correctional Complex, 442 US 1, 4 (1979). The Third Circuit

likewise held that same position stating that a prisoner was "not challenging the

application of the BOP regulations, but their validity." Woodall v Federal Bureau of

Prisons, 432 F3d 235 (3rd Cir 2005). Recently, the Third Circuit reversed and remanded

when a judge dismissed a action for failure to exhaust stating that it was the validity

of the poillicy-being challenged as unconstitutional, Montcreifee v Yost, 2010 US App

LEXIS 4567 (3rd Cir 2010).

The Respondent has used the Prisoner Litigation Reform Act ("PLRA") as a shield to now overrule every constitutional duty whatsoever. He has used the PLRA to create arbitrary

imprisonment without statutory authority. This is the very tyranny against which the

the this country rose up. Alexander Hamilton wrote in the Federalist Papers:

"[T]he practice of arbitrary imprisonments have been in all ages the favourite and most formidable instruments of tyranny."

Federalist No 84

It is very clear that Program Statements are only a statement of the policy.

It is by no means entitled to any deference whatsoever and certainly can neither

overrule a statute or the Constitution.

"Program Statements are not entitled to Chevron deference .•. because they are not 'subject to the rigors of the [APA], including public notice and comment."

Strong v Schultz, 2009 WL 485287, p7 n.3 (D NJ 2009)

The Respondent has assumed tyrannical power not permitted under the Federal

Constitution claiming "discretion" that cannot exist.

Discretion "means a sound discretion, that is to say, a discretion exercised not arbitrarily or willfully, but with regard to what is right and equitable under the circumstances and the law, and directed by reason and conscience .•• to a just result."

Langnes v Green, 282 US 531, 541 (1931)

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The Non-Detention Act affords no such presumed discretion. §4001(a) "proscrib[es]

detention of any kind by the United States." Howe v Smith, 452 US 473, 479 n.3 (1981)

(emphasis in original). The legislative history demonstrated it was intended to

prevent precisely what has been done to Armstrong, "arbitrary" imprisonment 117 Cong

Rec. 31544 (1971). A punishment becomes "unusual" when there is no statutoryauth-

ority and it is "imposed by 'Pretence to a discretionary Power. "' Harmelin, 501 US

at 974-975.

The Respondent has simply ignored the plain language of the statute and decided

to assume and usurp discretion that was not created by Congress.

18 USC §3585(b)

Credit for prio custody. A defendant shall be given credit toward the service of a term of imprisonment for any time he has

spent in official detention prior to the date the sentence commences -

(1) as a result of the offense for which the sentence was imposed; or (2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed;

that has not been credited against another sentence. (emphasis added)

The Supreme Court has interpreted this statute and clearly~tated that credit

is no longer limited to related imprisonments.

"Under the new law, a defendant may receive credit both for this time [related to the offense] and for time spent in official. detention in connection with 'any other charge for which the defendant was arrested after the commission of the offense for

_which the sentence was imposed."

US v Wilson, 502 US 329, 117 LEd2d 593, 602 (1992)

There is NO discretion granted to the Respondent whatsoever. He is commanded

by the non-discretionary use of the word "shall" in BOP statutes creates a "discretion-

less obligation[]" Lopez v Davis, 531 US 230, 148 Led2d 635, 646 (2001). Yet, the

BOP will not releage Armstrong. Lappin claims a discretion to create excepts at will

violating §3585(b) when §4001(a) requires a statute to create any imprisonment.

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THE RESPONDENT HAS TURNED THE CONSTITUTION

ON ITS HEAD CHANGING IT FROM NEGATIVE TO POSITIVE IN DIRECT VIOLATION OF SUBSTANTIVE DUE PROCESS AND PROCEDURAL DUE PROCESS

The BOP and Mr. Lappin have no authority whatsoever to carve out exceptions

to the plain language of the §3585(b) and arbitrarily imprison Armstrong shifting

the burden to him to prove he has any rights under the Constitution whatsoever.

Thus, the Constitution has no real force of law under the constant presumption of

discretion. The Constitution was intended to be a NEGATIVE restraint upon the

Government, but it has been turned on its head and converted into a POSITIVE

instrument whereby the burden has been shifted to the citizen to prove beyond a

shadow of a doubt that he has such a constitutional right. The Supreme Court has

rejected this construction stating it is NEGATIVE not POSITIVE that would then

require Government to create programs for the benefit of citizens, Harris v McRae,

448 US 297 (1980). The Government simply acts as it desires BEFORE establishing

if it has no restraint, inflicts the constitutional deprivation shifting the burden

to the citizen to prove he has any rights at all. Thus, there is no longer any such

restraint for the Government acts at all times in its own self-interest until it

is compelled to cease its unconstitutional action. Thus, there is no real liberty

when the Government ignores Article II, §3 that authorizes it to only "faithfully"

execute the laws but instead it exercises a "hydraulic pressure inherent within

each of the branches to exceed the outer limits of its power." Bowsher v Synar, 478

US 714, 727 (1986).

This case demonstrates how impossible it is to obtain constitutional relief.

This is precisely the same violation for which the Writ of Quo Warranto was created

by King Edward I to compel an official to produce upon what authority he claims to

be acting. This violates Substantive Due Process.

"[T]he Due Process Clause contains a substantive component that bars certain arbitrary, wrongful government actions, 'regardless of the fairness of the procedures used to implement them. III

Zinermon v Burch. 494 US 113, 125 (1990)

quoting: Daniels v Williams, 474 US 327, 331 (1986) ~

This Substantive Due Process claim that bars "arbitrary" government action, Foucha v Louisiana, 504 US 71 (1992). There can be nothing more fundamental than

to be free from arbitrary, non-statutory imprisonment. When a right is "fundamental" the government MUST then View any regulation as "narrowly tailored to serve a compelling state interest." Reno v Flores, 507 US 292, 302 (1993). "Rights are fundamental when they are 'implicit in the concept of ordered liberty. '" Immediate

v Rye Neck School Dist, 73 F3d 454, 460-61 (2d Cir 1996) quoting Palko v Connecticut, 302iUS 319, 325-26 (1937), or is "deeply rooted in this Nation's history and tradition.'" Ibid quoting Moore v East Cleveland. 431 US 494,503 (1977). This is a fundamental right not to be arbitrarily imprisoned without statutory authority from Congress. It cannot get any more "deeply rooted" than just that!

Armstrong has been denied his liberty without any Procedural Due Process at all. "The loss of liberty produced by an involuntary commitment is more than a loss of freedom from confinement." Vitek v Jones, 445 US 48, 492 (1980). "Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action." Foucha v Louisiana, 504 US 71,

80 (1992).

Wlien Cubans were held and there was an order to deport them but Cuba would not that them back, a constitutional crisis took place. 0 The Supreme Court made it clear "We cannot find here however, any clear indication of Congressional intent to grant the Attorney General the power to hold indefinitely in confinement an alien ordered removed." Zadvydas v Davis. 533 US 678, 696 (2001). Yet here also, §3585(b) makes no exception for civil contempt that was even included in the indictment as an obstruction of justice and then dropped at sentencing. This post-indictment imprisonment has no exception under ~3585(b)(2) unless it has been credited toward something else, which it has not taken place. Thus, Lappin and the BOP presume discretion to do as they like, even though §3585(b) uses the word "shall" bestowing no discretion. Still, Lappin and the BOP have violated Atrmstrong's Civil Rights and assumed "unlimited discretion." Id./533 US at 697.

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The Zadvydas Court made it perfectly clear that Due Process forbids what has

been done to Armstrong. Lappin and the BOP have denied any Procedural Due Process

since their Adminjstrative Remedies procedure does not even allow a challenge to

the policy statements of the BOP approved by Mr. Lappin. Consequently, the BOP

and Lappin choose to arbitrarily imprison Armstrong and shift the burden to him

rather than petition a court to verify its non-statutory assumption of raw power.

"The Fufth Amendment's Due Process Clause forbids the Government to 'depriv[e]' and 'person •.. of ... liberty ... without due process of law.' Freedom from imprisonment-from Government custody, detention, or other forms of physical restraint-lies at the heart of the liberty that Clause protects."

Zadvydas, 533 US at 690

There is no possible way to vindicate the protection of the Due Process Clause

when the BOP and Lappin arbitrarily refuse to follow the non-statutory command of

§4001(a) in the Non-Detention Act in its application of §3585(b). Clearly, simply

imprisoning Armstrong without even a prior hearing and using a Program Statement

to trump the statutes and the Constitution, is an arbitrary act of imprisonment

that constructively repeals §4001(a) and the Eighth Amendment. The actions in this

case have been arbitrary and violated the civil rights of "Armstrong and every just

and decent principle upon which a free society is established since Magna Carta.

"No free man shall be seized, or imprisoned, or disseised, or outlawed, or exiled, or injured in any way, nor will we enter on him or send against him except by the lawful judgment of his peers, or by the law of the land."

Magna Carta, Chapter 39

"The history of American freedom is, in no small measure, the history of pro-

cedure." In re Gault, 387 US 1, 21 (1967). Yet, Lappin and the BOP have denied any

right to meaningful due process of law. Even "courts should be particularly sensitive

of, and have a special obligation to respect, the demands of due process." Willner

v Committee' on Character, 373 US 96, 106 (1963). Justice Cardozo in his celebrated

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and often cited decision, Snyder v Mass, 291 US 97 (1934), made it perfectly clear

that there must be "fundamental justice" provided by the Due Process Clause, id.1

291 US at 108. The BOP and Mr, Lappin have denied Armstrong the simple right to be

heard for they refuse to listen to anything he has to say right down to medical

attention that as a matter of policy, they presume all inmates are liars and that

conveniently allows them to save money and deny medical attention. But the denial

of affording any right to be heard, violates Due Process, which "includ(es] the

right to be heard where liberty or property is at stake, •• " Ownbey v Morgan, 256 US

94, 111 (1921); Grannis v Ordean, 234 US 385, 394 (1914). Yet, the simply exercise

of power PRIOR to a right to be heard is unconstitutional.

ANY novel "construction of the Due Process Clause which would place any impossible or impractical obstacles in the way could not be justified."·

Mullane v Central Hanover Trust, 339 US 306, 313-314 (1950)

The Mullane Court, which held the seminal right to notice, is applicable in

its reasoning today, for Armstrong has been arbitrarily imprisoned without any

statutory authority, denied medical attention, and there is no procedural process

to even challenge anything that Lappin and the BOP has done.

"The requirements of procedural due process apply only to the deprivations of constitutionally protected liberty ... interests Board of ~egebts v Roth, 408 US 564, 569 ••• (1972). If the plaintiff satisfies this threshold requirement by showing that

he has been deprived of such an interest, the court must then determine whether the plaintiff was afforded sufficient· procedural protection. Morrissey v Brewer, 408 US 471, 481 ... (1972)

Yashod v Hunt, 696 F2d 468, 46~ (6th Cir 1983)

Armstrong maintains there was no procedure and that Lappin and the BOP simply

calculate the sentence and afford no procedural protection against mistakes at all.

This is turn:ng the Con3titution on its head transforming it from NEGATIVE to

POSITIVE shift the burden to Armstrong allowing arbitrary deprivation of liberty

without any showing whatsoever of their statutory authority as required by ~4001(a).

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DELIBERATE DENIAL OF THE RIGHT TO ACCESS THE COURTS THAT DENY THE RIGHT TO PRINT OUT ANY DISCOVERY PROVIDED BY THE COURTS ON COMPUTER CD-ROM

THAT CONSTITUTES A BRADY VIOLATION IN LIGHT OF MORRISON

Armstrong has about 130 CD Roms of discovery supplied by the New York court.

However, they are locked up in a BOP Safe and Armstrong is not allowed to possess

any CD-ROM overhight in his locker. Moreover, he is denied the right to print any

document from the CD-ROMs to access the courts (Exhibit B). Because of the holding

in Morrison et a1 v National Australia Bank Ltd, 561 US - 130 SCt 2861), 177 LEd2d

.

535, 3010 US LEXIS 5257 (June 24, 2010), what is now exculpatory material under

Brady v Maryland, 373 US 83 (1963), has been changed in the case at bar for there

is no dispute that the private notes issued overseas by foreign corporations and

given to Japanese corporations in exchange for (1) purchasing toxic portfolios of

Japanese stocks or (2) borrowing Japanese yen at fixed rates, were solicited in

Japan as conceded by the Government in both the civil and criminal aases, and there

was no purchase or sale of a listed Amwrican security on any exchange. Thus, there

was no jurisdiction or standing to bring the civil or criminal actions in the

United States~ As in Morrison, there was never any intent to own anything on a

American exchange and the notes were simply unsecured private transactions.

The Morrison decision has had profound effects nationwide. It has rejected the

Conduct & Effects Test established by the Second Circuit and set up a new "transact-

ional" rule for determining the extraterritorial application of the Securities '

Exchange Act. The Surpreme Court held that ~10(b) applies to "only .•• [1] the pur-

chase or sale of a security listed on an American stock exchange, and [2] the pur-

chase or sale of any other security in the United States." Id./at 2888. Thus, courts

have now held that sales of securities listed on a foreign exchange, even if purchased

by US residents, and not actionable under §10(b), Cornwell v Credit Suisse Group,

No. 08 Civ 3758, 2010 U.S. Dist LEXIS 76543, 2010 WL 3069597 (SDNY July 27, 2010).

Where all the activity related to purchases of securities occurred off-shore, it is

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clear there is no jurisdiction under ~10(b) of the Securities Exchange Act, In re

Banco Santander Sec-Optimal Litigation, 2010 WL 3036990, at ~~5-7 (SD FIa July 30,

2010). Judge Rakoff od the SDNY dismissed the attempt to apply RICO outside the

United States applying Morrison, Eligio Cedeno et al v Intech Group. Inc et aI,

2010 US Dist LEXIS 88026 (August 25, 2010). Judge Sweet clarified Morrison also in

the SDNY making it clear there must be listed American securities on an exchange

in the United States and the solicitation must take place in the United STates.

"Morrison states that §10(b) applies to securities transactions in the United States or transactions involving securities listed on an American exchange ••• "

SEC v CRED BANKCORP, LTD etal, (99-Civ-11395) ((/28/2010)

Directly in Armstrong's criminal plea written by the government, which he

was compelled to read before the press no different than some hostage denied the

dignity to plead in his own words, the Government had Armstrong state that indeed

the solicitations took place in Japan and had to take that position for they were

made by an alleged wholly owned Japanese registered broker-dealer, Cresvale, Ltd,

not by Armstrong personally, nor even by Princeton Economics International, Ltd.

I) •

ARMSTRONG: Among the things that were represented 'to investors by my agents in Japan on my behalf and with my knowledge when the investments were solicited •••

(Tr; 8/17/06, p20, L7-14)(SDNY 99-Cr-997)

The Government also had Armstrong state that any accounts in Philadelphia, not

even New York, were "trading accounts I opened and which were maintained at Republic

New York Securities based in New York City." (Tr 8/17/06, p19-20)(SDNY 99-Cr-997).

Even in the Civil Case, it was admitted that the notes were solicited in Japan.

O'KEEFE [CFTC COUNSEL]: Our focus is slightly different. It focuses on the fact that futures trading is done in those accounts at Republic that you have heard about after the notes were solicited in Japan So our focus is on what happened to the money after it got to the United States.

(SDNY 99-CIV-9667+69)(Tr; 10/14/99, p33, L6-14)(emphasis added)

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Even under Commodities Law, prior to Morrison it was well established that

the Commodities Law cannot be applied constructively. There has to be a contract

soliciting an investment in commodities, which simply did not exist, Tatum v Legg

Mason Wood Walker, Inc, 83 F3d 121 (5th Cir 1996). The Government conceded in the

criminal complaint that there were only two notes issued, a variable and a fixed

rate note. There were no contracts nor solicitation to invest in futures. The notes

were UNSECURED and thus no accounts in the United States belonged to any such note

holder. There was no solicitation in the United States, nor was a contract to at

any time invest in commodities, and there was no trading that flowed to a note holder

positive or negative since (1) the variable rate note purchased portfolios and (2)

the fixed rate notes simply borrowed yen paying an interest rate. If one borrows from

a bank and trading commodities, he is not constructively managing money for the

bank that merely lent money at a fixed rate. The Criminal Complaint stated clearly:

[5] c. Some of the notes are issued in the name of the purchasers and others are issued in the name of Cresvale-Tokyo as a nominee for the purchaser. Some of the notes pay fixed and others pay variable rates of interest. Some of the notes pay fixed and others pay variable rates of interest. Although all of the documents I have reviewed to date indicate that the notes are unsecured, repayment of some of

the notes are guaranteed by PEl.

(Criminal Complaint 9/13/99)

The fact that the notes were UNSECURED, established that there was no title

to any assets that belonged to a noteholder, and as such, this was purely a right

a jury trial that was ignored from the outset, Grupo Mexicano v Alliance Bond Fund,

527 US 308 (1999). There is no right to seize "substitute" assets, In re Assets of

Martin, 1 F3d 1351, 1356 (3rd Cir 1993); US v Razmilovic, 419 F3d 134, 141 (2d Cir

2005). This is why the Government in the criminal plea "I did conduct trading in

commodities futures contracts for the benefit of mote holders generally." (Tr; 8/17/06

p19-20)(SDNY 99-Cr-997). There was no contra~t to invest in commodities, not profits

or losses that flowed to a noteholder directly, and whether PEl made money to enable

it to repay its notes constituting "generally" is insufficient for commodity fraud.

12

Therefore, now in light of Morrison, there was no fraud that could be alleged

under the Securities or Commodities Acts when (1) all solicitation took place in

Japan, (2) there were no listed American securities on an American exchange, (3)

there was no contract soliciting investing in commodity futures, which is required

as a matter of law since there is no constructive crimess nor civil actions, and

(4) the CD-ROMS contain a wealth of exculpatory documentation that proves that each

note had to be individually approved by the Japanese Ministry of Finance.

The Criminal Complaint states clearly that most of the notes "are issued in the

name of Cresvale-Tokyo as a nominee for the purchaser." Id./§5c. This means that

the majority of the notes were simple book entries in Japan and were in "street

name" meaning that they were not formally issued to a noteholder. They were simply

journal entries on the books of the Japanese broker-dealer that was regulated by

Japan, and the Government merely alleged Armstrong wholly owned. Thus, there were

not even physical notes for most alleged noteholders and these were book entries in

Japan, further supporting that there was not jurisdiction nor standing to bring

such an action in the United States.

The refusal to allow access to the CD-ROMS is preventing Armstrong from accessing

the courts and withholding Brady material to deny Armstrong from presenting the

facts as they now stand under Morrison.

ARMSTRONG IS BEGING DELIBERATELY DENIED MEDICAL CARE AS A MATTER OF POLICY

Armstrong has been in constant pain and has lost most of his sight in his left

eye. He is suffering what he belies is a Staphylococcus inflection he got from the

showers that has invaded his body and the medical staff Mr. Esposeto and then Mr. Ibe

attempted to treat the problem giving Armstrong antibiotics. A lab report was taken

(Exhibit C) but a Dr Lopez, retaliating against Armstrong for going to the Executive

Assistant to the Warden, Steven Wagner, when she refused to resume the treatment,

13

Dr. Lopez told Armstrong she "will not be intimidated" and refuses to address any

problem and has arrogant stated that Armstrong has to get a court to overrule her.

There is no Administrative Remedies in medical for the BOP Policy that Dr Lopez

relies on takes the position that confined citizens are NOT entitled to any second

opinion. Thus, Dr. Abi~ale Lopez has made this a personal issue of retaliation for

Armstrong trying to get someone to simply order the antibiotics recommended in

the BOP's own lab report. Armstrong sent the lab report to his family doctor,

Michael C. DiMarcangelo, Hr. DO, and he replied that Armstrong needs urgent care

and Dr. Lopez has grown even more adamant as this is an affront to her authority

and has retaliated by refusing any such medical attention. Armstrong has shown

the letter (Exchibit D) to other staff members, but there is no procedural due

process in matters of medical care. They state there is no right to any second

op±nion. Armstrong ebelieves he will be blind by year-end and he already cannot

read with his left eye that is starting to appear like he is looking through a fish

bowl. He is in pain throughout his body that he is now concerned that this form of

Staphulococcus is aggressive and is attacking allithe muscles in his body. Dr.

Lopez simply said she never heard of such a thing and investigates nothing. The

lack of any procedural due process in medical matters is unconstitutional with no'

opportunity for relief at all.

PRAYER FOR RELIEF

Armstrong respectfully pleads for bail pending appeal, a change in custody to

home confinement, or to stay the execution of the sentence pending litigation and

appeal.

Respectfully submitted;

Dated: October 28th, 2010 Fort .Pix, New Jersey

Martin A. Armstrong #12518-050

FCI Fort Dix Camp PO Box 2000

Fort Dix, NJ 08640

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