United States District Court
for the District of Massachusetts

UNITED STATES,         )
- Vs - )   Criminal Docket
  )   #98-10079-REK
JOHN F. SWEENEY, JR.)
Defendant.                      )


AFFIDAVIT OF LINDA THOMPSON
IN SUPPORT OF MOTION
FOR RETURN OF PROPERTY AND
TO SUPPRESS EVIDENCE AND
MOTION TO DISMISS FOR LOSS AND DESTRUCTION
OF AND FAILURE TO PRODUCE EXCULPATORY EVIDENCE

        1. I am an attorney admitted to practice in the Courts of the State of Georgia.

        2. I have been counsel to John, Rhetta and Faith Sweeney since July 1, 1998. I submit this affirmation in support of JOHN F. SWEENEY's Motion for Return of Property and to Suppress Evidence and to Dismiss the Indictment for Loss and Destruction of and Failure to Produce Exculpatory Evidence.

        3. The assertions contained in the following paragraphs are stated from my own personal knowledge and based on information and belief, the basis for the belief being information received from the defendant, other persons, and from documents and other tangible items as identified herein and as set forth at the Exhibits Filed in Support of February 19, 1999 Motions and in Support of Motion to Dismiss for the Loss and Destruction of and Failure to Produce Exculpatory Evidence.

        4. As regards the evidence tendered herein, U.S. v. Matlock, 415 U.S. 164, 94 S.Ct. 988 (1974) held that hearsay statements could be admitted, not only on the issue of probable cause to search, but on other issues as well. The Supreme Court noted that a provision in the federal evidence rules specifically provided that on a preliminary question, the trial court "is not bound by the rules of evidence except those with respect to privileges." Fed. R. Evid. 104(a).
As regards the standard of review:

Payton v. New York, 445 U.S. 573 (1980), held that the Fourth Amendment prohibits the police from making a warrantless and nonconsensual entry into a suspect's home to make a routine felony arrest.

Coolidge v. New Hampshire, 403 U.S. 443, 474-475 (1971) (footnote omitted), declared that "a search or seizure carried out on a suspect's premises without a warrant is per se unreasonable, unless the police can show that it falls within one of a carefully defined set of exceptions based on the presence of 'exigent circumstances." Id. See also United States v. United States District Court, 407 U.S. 297, 313 (1972) ("physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed"); United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976) ("the sanctity of private dwellings ordinarily afforded the most stringent Fourth Amendment protection").

  1. "Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed. 2d 142 (1964), in which the Court concluded that 'the record . . . does not contain a single objective fact to support a belief by the officers that the petitioner was engaged in criminal activity at the time they arrested him.' Id., at 95, 85 S.Ct., at 227. Although the Court was willing to assume that the arresting officers acted in good faith, it concluded that: '[G]ood faith on the part of the arresting officers is not enough." Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134. If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate and the people would be 'secure in their persons, houses, papers, and effects,' only in the discretion of the police.' Id., at 97, 85 S.Ct. at 228. We adhere to this view and emphasize that nothing in this opinion is intended to suggest a lowering of the probable-cause standard. On the contrary, we deal here only with the remedy to be supplied to a concededly unconstitutional search."]

U.S. v. Leon, 468 U.S. 897,917-918, 104 S.Ct. 3405, 3418-3419 (1984), quoting from Illinois v. Gates, 462 U. S. 213, 238-239, 103 S.Ct. at 2332-2333 (1983).

"At the core of the Fourth Amendment, whether in the context of a search or an arrest, is the fundamental concept that any governmental intrusion into an individual's home or expectation of privacy must be strictly circumscribed (see, e. g., Boyd v. United States, 116 US 616, 630; Camara v. Municipal Ct., 387 US 523, 528). To achieve that end, the framers of the amendment interposed the warrant requirement between the public and the police, reflecting their conviction that the decision to enter a dwelling should not rest with the officer in the field, but rather with a detached and disinterested Magistrate (McDonald v. United States, 335 US 451, 455-456; Johnson v. United States, 333 US 10, 13-14). Inasmuch as the purpose of the Fourth Amendment is to guard against arbitrary governmental invasions of the home, the necessity of prior judicial approval should control any contemplated entry, regardless of the purpose for which that entry is sought. By definition, arrest entries must be included within the scope of the amendment, for while such entries are for persons, not things, they are, nonetheless, violations of privacy, the chief evil that the Fourth Amendment was designed to deter (Silverman v. United States, 365 US 505, 511)." Id., at 320-321, 380 N. E. 2d, at 235-236 (Cooke, J., dissenting)."

Payton v. New York, 445 U.S. 573 (1980).

        5. I submit that the seizure of persons, including John Sweeney himself, and all real and personal property, including all tangible items of evidence seized or which portray conditions existing or persons located at 776 Bay Road or 24 Meyer Lane between May 29, 1997 to March 1, 1998, and the testimony of all witnesses whether underlying the indictment herein or to be offered by the government at trial in its case in chief or for rebuttal purposes or otherwise, and all tape recording, videotaping, thermal imaging, aerial surveillance records and photography, notes, diagrams, or other items of tangible evidence taken from or concerning 776 Bay Road or 24 Meyer Lane between May 29, 1997 to March 1, 1998, were unlawful and in support submit the facts and totality of the circumstances for the court's consideration as follows:

I. FACTS SUPPORTING DISMISSAL
FOR LOSS AND DESTRUCTION OF AND FAILURE TO PRODUCE EXCULPATORY AND POSSIBLY EXCULPATORY EVIDENCE:

        1. On February 27, 1998, the United States government, by the U.S. Marshals Service, after being warned repeatedly in writing against trespassing, nonetheless entered John and Rhetta Sweeney's property at 776 Bay Road and 24 Meyer Lane, without an arrest or search warrant, and proceeded to seize 14 acres of land, several cars on the land including a car belonging to John Sweeney. ("Mr. Sweeney) and one home and all the contents therein belonging to Mr. Sweeney at 776 Bay Road.

        2. The US Marshals occupied the 776 Bay Road house ("the Bay Road house") continuously from approximately 9:30 p.m. on February 27, 1998, to at least 5:30 p.m. February 28, 1998, and controlled all the property until at least 11:30 a.m. on March 1, 1998 [See Exhibits 13 and 14, Returns of Service filed by the US Marshals, which read

"Seizure completed 2/28/98, property turned over to FDIC 3/1/98 11:00 a.m. to John Gilpatrick."

        Exhibits 13 and 14; Returns of Service filed by U.S. Marshals; and see also Exhibits 2, Entries 27 and 41, and Exhibit 3, Entries 29, and 44. (Dockets); see also Exhibit 7, Suffolk County Storage Non-Commercial Storage - Notice of Claim, dated 7/24/98 which states that the goods were left with the storage company by a Deputy U.S. Marshal on March 1, 1998.]

        3. The US Marshals forcibly broke and entered the 776 Bay Road home to seize it. They commandeered this home and physically occupied the 776 Bay Road home, using the telephones, furniture, and bathroom facilities there at least until approximately 20 hours later. The home was full of possessions belonging to the Sweeneys and other occupants. The contents belonging to the Sweeneys included dozens of boxes of files accumulated through the course of litigation in the cases underlying the alleged orders Mr. Sweeney is alleged to have violated in this case, so they are records clearly relevant to this case and potentially exculpatory on the issue of the lawfulness of the underlying order and the lawfulness of the arrest and seizure. The material also included contemporaneous notes, drawings, photographs, audio and video tape recordings, two computers and computer records, a fax machine and faxes, all of which included exculpatory and possibly exculpatory, relevant, probative material, a great deal of which were clearly in plain view as shown by the inventory videotape produced by the government. None of this material can be reproduced from another source and some of it cannot even be identified other than as general records relevant to the underlying civil cases, due to the sheer overwhelming volume of the material (see videotape showing dozens of boxes of records, for example, in both houses on the Sweeneys' property, as well as the computer, faxes, tape recorders, cameras and video cameras). The video cameras filmed entries to the house including the lawless entry made by law enforcement. Audio tapes recorded events throughout the day of John Sweeney's arrest. These would be exculpatory on the issue of the lawlessness of the government actors, as well as on the issue of mens rea of John Sweeney on the day of the raid.

        4. On February 28, 1999, at approximately 5:15 p.m., the Marshals broke a window and forcibly entered the 24 Meyer Lane home. The Marshals broke other interior doors to reach Mr. Sweeney, arresting him on an unspecified charge. The Marshals then seized the 24 Meyer Lane home and the Sweeney's household contents, all without an arrest warrant or search warrant.

        5. As shown in the Affidavit of Deputy U.S. Marshal Anthony Visalli, the siege on the Sweeney property began on February 27, 1998, when the Marshals seized several cars, and occupied all the land and the house at 776 Bay Road and its contents. [Affidavit of Anthony Visalli, para. 9]. The U.S. Marshals occupied the Bay Road house until the following day, using the furniture, TV, and telephones and toilets, until the following day, when they also seized the 24 Meyer Lane house by breaking into it, where they found John Sweeney and arrested him at approximately 5:15 p.m. In other words, the US Marshal's Service had possession and control of the Bay Road house, its contents, all the grounds, and several cars on the grounds, from February 27, 1998 to March 1, 1998.

        6. Since it was too dark to videotape anything at by the time Marshals broke into the 24 Meyer Lane house and arrested John Sweeney (5:15 p.m.), the government's videotape could not have been made until (at the earliest) the next day, March 1, since it was made during daylight hours.


        7. Within an hour of Mr. Sweeney's arrest, US Marshall Nancy McGillivray appeared on television announcing that Mr. Sweeney had been arrested in his home for "Contempt of Court." The videotape of this news broadcast in which Nancy McGillivray appears is contained in a videotape copy ("news broadcast videotape) recently provided to the Defendant's counsel by the government after nearly a one year delay.

        8. Mr. Sweeney was denied the use of a telephone to call counsel or his family for hours while in custody. Mr. Sweeney was later charged on March 2, 1998, by complaint with "Criminal Contempt of Court" for allegedly failing to vacate the property after allegedly being served with a lawful order to do so.

        9. As set forth in the Defendant's Motion to Suppress Evidence and Affidavit and Memorandum of Law in Support filed contemporaneously herewith, and incorporated by reference herein as if fully set forth, the arrest of Mr. Sweeney and the seizure of the land, vehicles, houses, personal property, at Bay Road and Meyer Lane, on February 27 and February 28 were wholly without warrant and were wholly unlawful, even if the US Marshals had in fact been serving a lawful eviction notice or order to vacate as they claimed.. However, even this claim by the US Marshals was false. The underlying "order" which the Marshals claimed to be either serving or executing was not lawful. The US Marshals knew that the order was not lawful and had been put on notice of the unlawfulness of the orders, in writing, by counsel Linda Thompson at least one dozen times from September, 1997, to February, 1998.

        10. The U.S. Attorney for Massachusetts interjected himself into the two underlying civil cases, absent any standing to do so, and in February, 1998, filed several motions on behalf of the U.S. Marshals Service, who also lacked standing in the underlying civil case. [See Exhibit 2, Docket in USDC Mass. Civil Docket #96-11864-EFH, FDIC v. Sweeney, and Exhibit 3, Docket in USDC Mass. Civil Docket #96-11866-EFH, FDIC v. Sweeney, entries for February 19, 1998.]

        11. The Court had no jurisdiction to act on the Motions filed by the U.S. Attorney as "attorney" for the U.S. Marshals. Article III of the Constitution limits federal courts to "deciding cases or controversies arising between opposing parties." Muskrat v. United States, 219 U. S. 346, 362 (1911); Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992).

        To have standing, a party must show that they have

        "[S]uffered an "injury in fact" -- an invasion of a legally-protected interest which is (a) concrete and particularized, see Allen v. Wright, 468 U.S. 737, 756 (1984); Warth v. Seldin, 422 U.S. 490, 508 (1975); Sierra Club v. Morton, 405 U.S. 727, 740-741, n. 16 (1972); and (b) "actual or imminent, not 'conjectural' or 'hypothetical,'" Whitmore, supra, at 155 (quoting Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)). Second, there must be a causal connection between the injury and the conduct complained of -- the injury has to be "fairly . . . traceable to the challenged action of the defendant, and not . . . the result the independent action of some third party not before the court." Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41-42 (1976). Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision." Id., at 38, 43."

Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992).

"The party invoking federal jurisdiction bears the burden of establishing these elements. See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990); Warth, supra, at 508.. See Lujan v. National Wildlife Federation, 497 U.S. 871, 883-889 (1990); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 114-115, and n. 31 (1979); Simon, supra, at 45, n. 25; Warth, supra, at 527, and n. 6 (Brennan, J., dissenting)."

Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 112 S. Ct. 2130, 119 L. Ed. 2d 351, 60 U.S.L.W. 4495 (1992).

        12. One of the Motions filed by the U.S. Attorney, which was granted by Judge Harrington on February 19, essentially duplicated the order of May 29, 1997, ordering the Sweeneys to leave their home, so it is, in effect, an admission that the May 29, 1997 order was invalid. The February 19, 1998 order obtained by the U.S. Attorney, however, is even worse.

        13. Obviously the US Attorney's office is well aware that even a temporary restraining order requires notice to the party to be restrained, in this case, the utility companies and John and Rhetta Sweeney (and other persons on the property), all of whom were to be affected by these orders and none of whom were given any notice of the hearing or application for the restraining order. John Sweeney was given no notice or opportunity for hearing when the U.S. Attorney applied for an ex parte, sealed order to order him off his property.

        14. "Due process requires that a party be given notice "reasonably calculated, under all of the circumstances, to apprise that party of the pendancy of the action and afford her an opportunity to present her objections." Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 70 S.Ct. 652). However, "[t]his right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest." Mullane, 339 U.S. at 314, 70 S.Ct. at 657. Furthermore, the "notice must be of such a nature as reasonably [sic] to convey the required information . . . and it must afford a reasonable time for those interested to make their appearance." Id.

        15. There is also no authority in law to "seal" anything whatsoever in a civil case, again, absent hearing and notice to parties affected. Holding secret hearings with no notice was plainly unlawful and violates the limits of the governments authority as set forth in the Constitution and violated John Sweeney's rights protected by the Fifth and Sixth Amendments to due process, to hearing and notice, to confront witnesses and to present evidence. There can be no question that this was not mere negligence or innocent error, because the U.S. Attorney's office well knew what it was doing.

        16. The fact is, the U.S. Attorney's actions belie a deliberate effort to subvert the Fourth Amendment's constraints and a total disregard for his oath and duties of office.

        "No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law."

Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891).
        "I had thought it self-evident that all men were endowed by their Creator with liberty as one of the cardinal unalienable rights. It is that basic freedom which the Due Process Clause protects, rather than the particular rights or privileges conferred by specific laws or regulations."

Meachum v. Fano, 427 U.S. 215, 230 (1976) (STEVENS, J., dissenting); Hewitt v. Helms, 459 U.S. 460 , 484 (1983).
        17. The AUSA was required by Fed.R.Crim.P. Rule 41 and the Fourth Amendment to the Constitution to get a warrant to arrest John Sweeney, and to get a warrant to search John Sweeney's property, see, e.g., Payton v. New York, 445 U.S. 573 (1980); Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), reh'g denied, 396 U.S. 869, 90 S. Ct. 36, 24 L. Ed. 2d 124 (1969).

        18. The U.S. Attorney also knew that the underlying May 29, 1997 order was illegal because under the law, the Sweeneys and any Massachusetts resident, were entitled to a jury trial on the issue of eviction, which they never received, which the U.S. Attorney knew because the U.S. Marshals office and the U.S. Attorneys office had been sent a letter concerning this by attorney Linda Thompson. Under the Erie doctrine, federal courts sitting in diversity apply state substantive law and federal procedural law. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). See Exhibit 18, copy of Massachusetts law requiring jury trial.
        "As a starting point, it is to be recognized that Massachusetts has long accorded tenants both a constitutional and a statutory right to a jury trial in eviction cases. Davis v. Alden, 2 Gray 309, 312 (1854). It is familiar law that the right of trial by jury secured by art. 15 of the Declaration of Rights is sacred and must be sedulously guarded against every encroachment, yet it may be regulated as to the mode in which the right shall be exercised so long as such regulation does not impair the substance of the right." H. K. Webster Co. v. Mann, 269 Mass. 381, 385 (1929). Fratantonio v. Atlantic Refining Co. 297 Mass. 21, 24 (1937)."

Kargman v. Marjorie E., 359 N.E.2d 971, 5 Mass. App. Ct. 101 (1977); and see Pernell v. Southall Realty, 416 U.S. 363 (1974) ["The United States Supreme Court has held that the Seventh Amendment to the Federal Constitution guarantees the right to a trial by jury in an action brought in the District of Columbia for the recovery of possession of premises." Id.]

        19. The U.S. Attorneys office and U.S. Marshal, Nancy McGillivray, had been provided proof that the underlying orders were unlawful and proof that each of them had a legal duty to determine that any order they sought to enforce was legal. I had sent letters reciting the law, as above, to each of them and reciting the facts concerning the unlawful conduct of Judge Harrington, including the facts that:

        Edward F. Harrington, at all times knew or should have known that he had multiple bases upon which his disqualification was and remains mandatory by law. 28 U.S.C. 455. In the underlying case, U.S. District Court #91-10098WD, which forms the basis for the continuing orders in the underlying cases of USDC Mass. #96-11864EFH and #96-11866EFH, which were heard before Judge Edward F. Harrington, the following bases for mandatory disqualification existed and now exist, and all of which Judge Harrington knew at all times and all of which precluded Judge E. F. Harrington from exercising authority at the inception of the underlying case, and at all times subsequently:

        John Hanify, the lawyer for the Defendant, ComFed Bank, in the underlying case, and then for the Resolution Trust Company, brought this case to the Federal Court through procedurally illegal mechanisms, by literally taking the physical state court file, after a jury verdict and judgment had been entered, and his own client had an appeal pending in the state appellate court, and waltzing the physical file right out of the State Court (destroying the record of a judgment by Judge Izzo) and presenting the case to a federal judge as if it were properly removed. The case was transferred to Judge Harrington, John Hanify's former associate and friend, and Judge Harrington accepted a provably perjured affidavit, that was otherwise wholly inadmissible because it contains hearsay attributed to multiple employees of John Hanify (who could have, but did not, provide testimony or affidavits). The unbelievable circumstances surrounding the removal have never been reviewed by any other court, owing to the fact that the Sweeneys were pro se at the time this occurred. Even a seasoned attorney would have had serious difficulty keeping up with the incredibly lawless conduct that worked the so-called "removal" of a case that had already been to trial and judgment, awarding the Sweeney's $4 million, over to a federal court to be summarily "dismissed." [Without getting into more detail here about the underlying cases, to illustrate just one reason why the order from Judge Harrington dismissing the Sweeney's $4 million judgment was bogus is facially apparent in the Full Faith and Credit Act, 28 U.S.C. §1738, "mandate[s] that the "judicial proceedings' of any State "shall have the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such State ... from which they are taken.' " Matsushita Elec. Indus. Co., Ltd. v. Epstein, 516 U.S. 367, 373, 116 S.Ct. 873, 877, 134 L.Ed.2d 6 (1996) (quoting 28 U.S.C. § 1738). Accordingly, "[f]ederal courts may not employ their own rules ... in determining the effect of the state judgment, but must accept the rules chosen by the State from which the judgment is taken." 516 U.S. at 373, 116 S.Ct. at 877 (internal quotation omitted).]

        Federal Judge Edward F. Harrington formerly worked with John Hanify in the U.S. Attorney's office in Boston and continued to work in the U.S. Attorney's office, when Hanify became involved in this case, and then became the judge in the case, with Hanify appearing before him representing the RTC.

        John Hanify, the lawyer opposing the Sweeneys in the underlying civil case, was a material witness at the critical hearing on the issue upon which the Court's sole basis for jurisdiction was determined, which was the illegal removal of the underlying State Court cause to Federal Court, by John Hanify. Judge Harrington had a clear and mandatory disqualification on this basis that was not waiverable. 28 U.S.C. 455.

        Demonstrating the clear bias resulting from Judge Harrington's failure to disqualify, even though an evidentiary hearing was held on the issue of John Hanify's removal of the Middlesex Court file, Edward Harrington accepted a "group affidavit" from Hanify that was wholly deficient under Fed.R.Civ.P. 56 on its face, in lieu of testimony by John Hanify, who was present for hearing and was not allowed to be subjected to cross-examination.

        Additionally, John Hanify is the original lawyer for ComFed Savings Bank (who the FDIC later claimed to succeed), who then represented the government's Resolution Trust Corp. (RTC), the agency that took over the failed bank and was supposed to investigate the fraud of the bank's officers and lawyers, a clear conflict of interest of interest for Hanify, the bank's lawyer, who himself was subject to investigation.. Disciplinary Rule 5-102(A), 359 Mass. 796 (1972), provides that an attorney who learns that he 'ought to be called as a witness on behalf of his client . . . shall withdraw from the conduct of the trial . . . .' One of the reasons for this rule is that if a lawyer appears both as an advocate and witness, 'he becomes more easily impeachable for interest and thus may be a less effective witness." Borman v. Borman, 378 Mass. 775, 786, 393 N.E.2d 847, 855 (1979) (relied upon in Siguelan v. Allstate, unpublished First Circuit Opinion, March 10, 1995.)

        Judge Harrington knew this conflict clearly existed, that Hanify's conduct and self-serving testimony and perjured affidavit were in fact the linchpin of the "lawfulness" of the removal action, and the sole basis upon which the Court's purported jurisdiction derived, but allowed John Hanify to continue in this representation.

        Edward Hanify is John Hanify's father. Edward Hanify's lawfirm is Ropes and Gray. Ropes and Gray also appeared in the Sweeney cases before Judge Harrington, after Hanify took it to Judge Harrington.

        Judge Harrington was nominated to his current position by Ted Kennedy (who is represented by Edward Hanify's lawfirm, Ropes and Gray).

        Edward Hanify (John Hanify's father), a partner in Ropes and Gray, testified before Congress on behalf of Judge Harrington's nomination to rescue the nomination after the Massachusetts. Bar Association testified against Harrington's nomination.

        Ed Hanify's lawfirm, Ropes and Gray, represented Ted Kennedy in the Chappaquidick litigation. Kennedy owes his career to Ropes and Gray, and Judge Harrington owes his Federal Judgeship to both Kennedy and to Ropes and Gray.

        Every one of the above is reasons Harrington was disqualified from acting in the two underlying civil cases and why every "order" issued by him was without authority..

        "28 U.S.C. § 455, "Disqualification of justice, judge, or magistrate," provides in relevant parts:

        "(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

        "(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
        (i) Is a party to the proceeding, or an officer, director, or trustee of a party;
        (ii) Is acting as a lawyer in the proceeding;
        (iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
        (iv) Is to the judge's knowledge likely to be a material witness in the proceeding.

        "(c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.
28 U.S.C. § 455 (emphasis added)."

        However, finally, Judge Ed Harrington's son, WILLIAM T. HARRINGTON, two years ago, went to work for John Hanify's lawfirm while the Sweeneys' case was before Judge Harrington. (John Hanify is the lawyer who was opposing the Sweeneys in State Court, illegal removed the case and accomplished a false substitution of parties).

        Judge Harrington's son continued to work for Hanify for two years, and was still working there on the day Judge Harrington issued the Feb. 19, 1998 "ex parte" order on application of non-parties.

"18 U.S.C. § 201, "Bribery of public officials and witnesses," provides in relevant part:

"(b) Whoever -

        "(1) directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official, or offers or promises any public official or any person who has been selected to be a public official to give anything of value to any other person or entity, with intent -

        (A) to influence any official act; or

[. . .]

        "(2) being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for:

        (A) being influenced in the performance of any official act;
[. . .]

"shall be fined under this title or not more than three times the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States."

18 U.S.C. § 201.

        20. Judge Harrington has heard other cases presented by Hanify during this same period and it is clear that Harrington's son was given a job, right out of law school, by Hanify, while these cases were pending, and that Hanify and Harrington know one another, both from past work associations, as well as presently. There is no basis upon which Judge Harrington can deny that his duty to disqualify was mandatory, nor that the employment of his son by Hanify gives the clear appearance that felonious conduct, to wit, bribery, has in fact occurred.

        21. It was far easier, then, in this framework, for the U.S. Attorney to present secret petitions to a rubber-stamp Judge, Judge Harrington, who could be relied upon to do whatever was necessary to try to silence the Swine's, who by this point had already obtained Congressional hearings into some of the underlying criminal fraud and conduct rampant in this case.

        22. The unlawful proceedings by which the U.S. Attorney claimed to have entered the case, absent any standing whatsoever, and to have obtained orders on February 19, 1998, ex parte, without hearing or notice to anyone affected, and to have then moved to seal the motions and orders, again without hearing or notice, all before Judge Edward F. Harrington, and the fact that Judge Harrington not only entertained these facially defective motions, he granted them, demonstrates further nothing more than one more transgression in a long series by Judge Harrington in this case. The U.S. Attorney's office well knew, and very clearly relied upon, Judge Harrington's bias and willingness to wholly ignore the Constitution and laws of this country, and his oath of office. (Judge Harrington was also formerly the U.S. Attorney for Massachusetts and an Assistant U.S. Attorney).

23. The US Marshals also had purposely refused to serve any of the alleged orders to vacate the property upon Mr. Sweeney at any time for nearly a year, from May, 1997, until February, 1998, although, as noted in the affidavit of Deputy US Marshal Anthony Visalli, they had time to send letters to counsel Steve Gordon setting forth threats and demands upon John Sweeney. In fact, the US Marshals had completely avoided serving a copy of any order on all of John Sweeney's various Counsel of record, as shown by the affidavits of all these attorneys, plus others, appended hereto at Exhibits 11, 12, 15 and 17.

24. Attorney Steve Gordon had written to the District Court Clerk, requesting to be served with a copy of the May 29, 1998 order (pointing out that local rule required the Clerk to serve the order on Counsel of record.) Steve Gordon was never served either by mail or by delivering a copy to his office (Fed.R.Civ.P. 4) of either the May 29 or February 19 order, as set forth in his Affidavit at Exhibit 17 and see Exhibit 12.. Steve Gordon also had filed a Motion with the District Court in cause number 96-11864-EFH and 96-11866-EFH, FDIC v. Sweeney, to obtain a copy of the February 19 (or any other) sealed order. This motion was denied by Judge Harrington, who had sealed the February 19, 1999 orders.

25.         Both Attorney John Andrews and I appeared at mediation hearings between August, 1998 and December 1998, and neither of them was ever served at these meetings with a copy of either order (including the first meeting at which US Marshal Nancy McGillivray and US Deputy Marshal Timothy Bane were present) [Affidavits of John Andrews, Esq., Exhibit 11; Affidavit of Linda Thompson, Esq., Exhibit 12], nor at any time by mail or by delivery of a copy to either of their offices. Clearly, this could easily have been done and would have been legal service on John Sweeney by service on his counsel of record. (Fed.R.Civ.P. 4). I contacted the Marshals service about this on at least two occasions by phone and at least one occasion in writing between September, 1998 and February, 1999. Id.

24.        The US Marshals had five different mailing addresses (four attorneys and John Sweeney) to which they could have sent a certified letter with a copy of either or both orders and five different locations (four lawyer offices and John Sweeney's residence) at which they could have delivered a copy of the order, and they would have had good service of the order by federal law (Fed.R.Civ.P. 4), yet they did not ever, not once, do this, in nearly a year, and in the face of verbal and written requests.

25. The only reasonable conclusion to be drawn from these facts is that the US Marshals Office purposely did not serve either of the two orders on John Sweeney or his counsel.

26. That the US Marshals service not only failed to serve the orders but clearly refused to serve the orders on John Sweeney or his counsel for eight months, shows a willfulness and purposeful course of conduct, intended to defeat, not advance, the course of justice in this case.

27. Instead, the US government, at the eleventh hour, claims it "tacked a copy" of one of the orders on the door to one of the residences on John Sweeney's property, on February 23, four days before the February 27-March 1 lawless raid began. This is not and never has been good service.

28. Most noticeably, the second order of February 19, 1998 was obtained without lawful authority, in clear contravention of existing law, without notice to Mr. Sweeney or his counsel, and ex parte as to John Sweeney, all in secret, by the US Marshals office itself who had no standing in the case whatsoever. The order itself was sealed. This is a matter of record. It could therefore not be lawfully "served" at all, because it was in fact impounded and sealed, secret. [Docket, Docket in USDC Mass. Civil Docket #96-11864-EFH and 96-11866-EFH, FDIC v. Sweeney, Exhibit 2.] However, as otherwise briefed herein, notice on the door is not good service, particularly not when there were five different people and addresses who could have been served by mail or in person -- four attorneys and Mr. Sweeney -- that would have effected service on Mr. Sweeney [Fed.R.Civ.P. 4].

29. In other words, John Sweeney stands charged with violating unlawful and illegally obtained secret, sealed orders, which the government refused to serve upon him and his attorneys, and refused to allow him to know about by refusing to give him notice or an opportunity to be heard at hearing, even keeping the hearing they held without him secret from the world and sealing the order he is charged with "knowingly" violating, which was obtained by persons who were not parties to the underlying civil lawsuit and who had no standing to request any relief in the suit whatsoever.

        30. I had sent the U.S. Marshals Massachusett's Law on Eviction and Process, demonstrating that the Sweeneys were entitled to a jury trial they never got, and also showing that Massachusetts law required notice before an execution was served and that executions could not be served on weekends, holidays, or before 9:00 or after 5:00. [See Exhibit 18]. I asked to be notified if the Marshals planned to go to the Sweeneys' property. Yet, when the Marshals went to the Sweeneys' property on February 27, 1998, it was 9:30 p.m. Friday night. The remained at the property through Sunday. John Sweeney was arrested on Saturday evening at 5:15. All of these circumstances, too, show the blatant disregard the Marshals had for the law, and for Mr. Sweeney's rights.

31. In the Sweeney case, a day didn't go by that the media were not spouting stories of "paramilitary" activity at the Sweeney property, yet these stories were not coming from the Sweeneys who consistently maintained they were unarmed, peaceful people, as anyone who has met them can attest, including the US Marshals.

32. US Marshal Timothy Bane seemed to be a major source for inflammatory news stories. Bane was quoted in one story saying that the Marshals would be going to the Sweeney's property with guns. While this is true, it was purely inflammatory, particularly in the context of the other wild "paramilitary" stories that were being circulated.

33. While mediation was scheduled to occur (September to December), and after the order keeping the Marshals back was lifted, US Marshal Nancy McGillivray was requested repeatedly to advise whether or not the Marshals were going to "move in" as they continuously threatened, often via the media, to do. The Sweeneys lived under threat of armed siege daily, from June, 1997 to February 1998. These threats were directed at them from the FDIC, Joe Shea, and the US Marshals. The Sweeneys were also very much aware that this was the same US Marshals office that had already been responsible for a siege of another family in which the unarmed young mother, holding her baby, and her 14 year old son were murdered by government snipers (who were never charged with the murders).

34. In September, 1998, as the Defendant's counsel was telling the storage company it had a duty to preserve the evidence (the contents of John Sweeney's homes), AUSA Sheila Sawyer told the storage company's attorney by letter September 8, 1998 that she understood the storage company intended to dispose of all the property immediately and that it was the government's position that the property was "of no relevance whatsoever to the pending criminal contempt case." [September 8, 1998 letter from AUSA Sheila Sawyer to Richard Connors, Exhibit 7.]

35. So the government took all Mr. Sweeney's belongings, worth over $2 million, including his clothes, antique furniture, his children's pictures, family memorabilia, rugs, quilts, carpets, hand crocheted lace canopies, and a lifetime of household furnishings, worth over $2 million, as well as boxes and boxes of files and other relevant, probative, exculpatory and potentially exculpatory material, packed it up into two semi-trailers, told somebody else to feel free to sell it, because it has "no possible relevance to this case," and continues to prosecute John Sweeney with a straight face, as if he were the criminal here.

36. The videotape inventory recently provided to Defendant's counsel after nearly a one year delay shows that the government, at the time the two houses were seized by US Marshals (who maintained control over the properties for at least 36 hours), knew the property contained items that any person with even a modicum of intelligence would deduce may contain material, relevant, probative, exculpatory or possibly exculpatory evidence, which the US Marshals had a legal duty to preserve.

37. The plainly visible items included dozens of boxes of files, photographs, videotapes, audio tapes, answering machines, fax machines and faxes, tape recorders, computers and disks, and most especially, video cameras with videotapes in them, set up at the doorways that filmed the unlawful break-ins by the US Marshals, as well as audio tapes made by Mr. Sweeney throughout the day of his arrest, taken off his person, and off the desk in the office. US Marshal Anthony Visalli attested in his affidavit in support of the original complaint that he saw a copy of a memo sent to Steve Gordon on the kitchen counter [Visalli Affidavit, appended to the complaint, docket Entry #1, paragraph 12 of the affidavit, line 8], which formed part of the basis or innuendo that John Sweeney had "notice" at least of a letter sent to his attorney. However, Anthony Visalli did not preserve the documents on the kitchen counter, and had he preserved these documents, en toto, they would have proven that Anthony Visalli fabricated this claim (which is indicated by the fact that he failed to preserve the evidence that supposedly would have demonstrated it), and the documents which were on the kitchen counter, which Visalli did not preserve, could have been used for impeachment purposes of Visalli's credibility.

38. The inventory videotape also shows that AUSA Sheila Sawyer had padded her letter of October 9, 1998 to the defendant's counsel in which she reveals the videotape, with some gratuitous, wholly fabricated, sensationalistic claims. AUSA Sheila Sawyer said that Marshals had seized "a couple of 'smoke sticks' which your client apparently contemplated using as an accelerant, and two gas cans located in the basement which appeared to have been rigged to disseminate gas around the perimeter of Sweeney's house," As shown in the government's inventory videotape, the "gas cans" are ordinary propane tanks, the size used for charcoal grills and indoor propane heat. Shown nearby are two hookups to hoses that go to fireplaces inside the house. The fireplaces themselves, with ashes in them (in the dead of winter), are also clearly shown throughout the videotape. These were part of the ordinary equipment in the house and they were not connected to anything nor "rigged" to disseminate anything whatsoever, as can plainly be seen in the videotape. Additionally, if the government did in fact "seize" these items as "evidence," then why were they not revealed in discovery and why wasn't Defendant's counsel allowed to view and inspect them?

39. This is but one small way that a defendant's right to trial can be impaired by the government. The gratuitous and false remarks in the Nov. 9, 1998 letter were intended to be inflammatory and to taint these proceedings, if the letter were ever introduced by the Defendant (as it has been for Brady purposes) on the issue of the inventory videotape, and also to impair Mr. Sweeney's right to effective assistance of counsel by slandering him to his attorney, since the AUSA knew the remarks to be false when she made them, as the circumstances demonstrate. The videotape inventory proves that there was nothing "rigged" to the propane tanks.

40. However, since the Marshals were plainly conducting a lawless search of the basement of the property (where the propane tanks were located), two stories below where John Sweeney was found, they were also quite able to see the exculpatory material immediately adjacent to the propane tanks, that included boxes and boxes of files, photographs, property development plans, and other items clearly relevant to these proceedings.

41. While the US Marshals were camping out in the Bay Road property, they doubtlessly observed the dozens of boxes of files, photos, faxes, audio and videotapes, and computer records, (which are plainly visible, out in plain view, as shown on the government's videotape inventory) nearly all on the subject of the underlying litigation, and should have had no doubt of their duty to preserve this material.

42. At a minimum, the following plainly visible items: a computer, fax machine, faxes (concerning matters herein), tape recorder, tape recordings (next to a device to record telephone conversations, also filmed by the US Marshals), more than 100 plainly visible boxes of files and file folders, audio tapes, video tapes, video cameras with videotapes at the doorway which were recording the entry of the US Marshals into the property and the forcible entry, contemporaneous handwritten notes that were in many rooms, were plainly visible, and obviously pertained to this case, and were obviously possibly exculpatory and much of it, such as the videotapes of the lawless entry, and the recordings seized from Mr. Sweeney's possession and out of tape recorders in the house, were clearly exculpatory, by depicting the lawless nature of the conduct of the US Marshals, Mr. Sweeney's state of mind (mens rea) at the time of the alleged offense, and the papers on the kitchen counter which would have impeached Anthony Visalli's claim that he saw a letter on that counter that was the same as letter sent to attorney Steve Gordon. The videotape inventory itself is very obvious exculpatory, in that it shows the

43. At a hearing on April 20, 1998, AUSA Timothy Feely falsely represented in open court that the US Department of Justice never took possession, control or exercised any dominion or control over the household goods on the property. [EXHIBIT 5, Transcript of April 20, 1998 hearing, page 12, lines 10-12].

44. At the hearing on April 20, 1998, however, the AUSA agreed to allow counsel for JOHN F. SWEENEY to view the contents of the trailers. [April 20, 1998 transcript, page 17, lines 20-23].

45. The US Attorney's office at the April 20 hearing mislead the Court and the Defendant that any issue of gaining access would have to be taken up as a civil matter with the FDIC or an independent contractor. [Transcript of April 20, 1998, hearing, page 18, lines 20-25 continuing to page 19, lines 1-2.]

46. Subsequently, as a result of these false statements, Mr. Sweeney's counsel did file a civil suit against the independent contractor [Suffolk Superior Court, JOHN SWEENEY v. GRANITSAS, #SUCV98-04607, filed September 10, 1998, see Docket, Exhibit 16], however, by this time, the contents of one or both of the two trailers had been sold at auction on or about September 1, 1998.

47. At no time was Mr. Sweeney or his counsel given access to those trailers as the government represented in open court on April 8 would be allowed. [Transcript, page 17, lines 20-24]. Further, the contractor hired by the government to store the possessions who sold the two trailers of possessions at auction was well aware of Mr. Sweeney's and his counsel's efforts to view the items inside the trailer, having been contacted by the Sweeneys, Mr. Sweeney's counsel, and Joe Shea of the FDIC, yet refused to allow Mr. Sweeney or his counsel to view the contents of the trailers at any time, unless Mr. Sweeney signed a blanket release of all liability for any and everything associated with the removal and storage of the property. [EXHIBIT 8 - Release demanded by James Granitsas, the owner of the Moving and Storage Company.]. This was an extortionate and wholly illegal, self-serving demand and Mr. Sweeney was advised by counsel not to sign the release.

48. In its response to the Defendant's Motion to Preserve Exculpatory Evidence [Entry 23], the government insisted it had not had control of the items inside the trailers containing Mr. Sweeney's possessions that were seized by the US Marshals service "since" February 28 1998 [and see Magistrate's Order of September 29, 1998, pg. 2, para. 4, Entry #26, "The government understands its obligation to preserve and produce all exculpatory evidence within the meaning of Giles v. Maryland, 386 U.S. 66 1967), Brady v. Maryland, 373 U.S. 83 (1963 and Giglio v. United States, 405 U.S. 150 (1972). However, the government takes the position that since it does not have custody or control of the property removed by the FDIC from Mr. Sweeney's former residence, it has no obligation or duty to either preserve or produce exculpatory evidence from that source . . . ."]        It is clear from the Court's order of September 29, 1998, by the careful, and misrepresentative wording of representations made by the United States to the Court, specifically, saying that "since February 28" the government did not have control of the property, that the Court was mislead.

49. The government's duty to preserve exculpatory evidence began on February 28, 1998, when US Marshals did in fact break into both houses, arresting Mr. Sweeney and seizing both houses and all the contents of both houses [as shown by the videotape, EXHIBIT B]. The duty to preserve exculpatory evidence began the moment the US Marshals entered the property and continued from every moment since.

50.         To claim that the property was "secured for" the FDIC and "turned over to" a private contractor (by the US Marshals) did not relieve the AUSA or the Marshals of responsibility for locating the exculpatory evidence. Instead, it is another admission that the US Marshals had control and dominion over the property at the time Mr. Sweeney was arrested on February 28, 1998, and that they simply failed to preserve the evidence. Certainly the US Marshals knew of the duty to preserve exculpatory and potentially exculpatory evidence at the time they arrested Mr. Sweeney, which occurred before the property was turned over to the FDIC.

51. The Affidavit of Probable Cause filed by US Marshal Anthony F. Visalli in support of the original complaint filed in this cause (Entry #1) asserts that the government posted a copy of "the Second Order" on the main door of the property at 226 Meyer Lane on February 23, 1998 (Numbered Paragraph 7) and that Mr. Sweeney was subsequently seen by U.S. Marshals on the property holding a press conference at approximately 12:00 noon on February 27 (Numbered Paragraph 9). This affidavit also admits that Mr. Sweeney was not seen on the day of his arrest and in fact had not been seen in more than 29 hours, until after U.S. Marshals had broken a window and forcibly entered the house and then forcibly entered a locked room in which Mr. Sweeney was located (Numbered Paragraph 12). The sworn statements by Anthony F. Visalli of the U.S. Marshals Service thereby admit that the government did not see any crime take place contemporaneous to Mr. Sweeney's arrest without warrant for "Criminal Contempt of Court." Mr. Sweeney was not given any opportunity to leave when he was seen, he was simply arrested.

52. On the evening of Mr. Sweeney's arrest on February 28, 1999, Nancy McGillivray, U.S. Marshal appeared on television and announced that Mr. Sweeney had been arrested for "Criminal Contempt of Court." The video of this newscast is part of videotapes which were only recently released by the U.S. government to the Defendant's counsel and which are themselves one basis for this present Motion to Dismiss.

53. This videotape inventory of the property that was seized by US Marshals was not disclosed to the Defendant's counsel until November 9, 1998, when AUSA Sheila Sawyer responded to a letter from William Korman, an associate of John McBride, Mr. Sweeney's counsel, in which the US (once again) misrepresents that the US Marshals "did not seize anything belonging to your client on the day of his arrest other than a couple of 'smoke sticks' . . ." (these "smoke sticks" are standard smoke signals, the kind used by hikers, but Sawyer then gratuitously adds that "your client apparently contemplated using as an accelerant" which shows the desperation inherent in this prosecution. [Exhibit 10]

        54. However, since the government claimed some criminal intent on the part of John Sweeney associated with the propane tanks and smoke sticks, it had a corresponding duty to preserve the exculpatory items, such as the wires, that were antenna and TV cable wires, the gas nozzles and lines that were for the fireplaces in the house and which could not be rigged up to "spray" anything, the propane tanks and the smoke sticks themselves..

55. The Nov. 9, 1998 letter from AUSA Sheila Sawyer [Exh. 10] also represents that the videotape inventory was made by a private contractor, however, matters filmed on the tape indicate that this tape was made more in the nature of finding evidence than in making an inventory, such as the fact that the cameraman stops and zooms in on things that are small and electronic, such as a telephone recording device that is a small black suction cup, several remote controls (such as for TV), cell phones, tape recording devices, and so on, while spending very little time showing priceless antiques and their contents. The camera man at one point zooms in on a portable radio sitting on a table, in order to show what channel the radio was set to; and zooms in on some binoculars sitting on a sink and then to the window immediately left of the sink to show the "view" that would have been seen with the binoculars; at both houses, the CB radio antennas on the houses were filmed slowly, up and down. The cameraman inadvertently captured himself in a mirror however, and he is a heavyset white male with white hair and should be identifiable. If he is not a US Marshal, it is clear from the manner of the videotaping that he was acting as an agent of the government.

56. The government was under a legal duty to identify the "independent contractor," who allegedly filmed the videotape, both to authenticate this tape and so that he could be examined by the Defendant on his knowledge of what items he saw that may or may not have been filmed that were exculpatory or possibly exculpatory to the Defendant, but the government has not identified the person who made the tape and in fact, as the letter of November 9, 1998, from AUSA Sheila Sawyer to Defense Counsel William Korman demonstrates, the government has been evasive on this point..

57. In the letter of November 9, 1998, AUSA Sheila Sawyer states that "US Deputy Marshal Anthony Visalli has advised me that the premises were videotaped by a private contractor, prior to the removal of your client's possessions from the property." AUSA Sawyer does not state when she learned that Visalli knew of the tape nor when Visalli learned of the tape; however, in his affidavit in support of the original complaint, Visalli states he was present the day of the raid (February 27, 1998).

58. On February 28, 1998, the US Marshals service seized everything in the house and on the property, including approximately $2 million dollars in contents of the house that included priceless portraits, paintings, and charcoal sketches of the Sweeney's children, antique wool carpets, antique buffets, china cabinets, tables, Victorian couches, wardrobes, bookcases, and all manner of household goods, all the Sweeneys' personal clothing, hundreds of leather bound books, antique quilts, and other furnishings.

59. Also included were a computer, monitor, printer, answering machine, tape recorder and tapes, and more than 100 boxes of files and records JOHN SWEENEY had accumulated over 10 years. Most of these boxes and even the file names and files themselves are shown on the videotape only recently released by the government.

60. The contents of the computer, tape recordings, and more than 100 boxes of files and records contain exculpatory information including transcripts of original court proceedings, the original (and irreplaceable) Development Plan for the Subdivision, photographs, videotapes, and audio tapes and contemporaneous records and notes regarding the unlawful conduct of the Resolution Trust Corporation and the Federal Deposit Insurance Corporation, and officers of several Savings and Loan Banks, and acts of at least one Federal Judge and two attorneys acting in conspiracy and collusion therewith, to unlawfully take control of Mr. Sweeney's property, all of which records are exculpatory to Mr. Sweeney on the issue of the lawfulness of the alleged orders to vacate. Additionally, tape recordings recovered on Mr. Sweeney's person are exculpatory on the issue of lack of service of any order.

61. Also shown on the videotape from the government of the contents of the property when it was seized are cameras that were running when the unlawful entry into the property was made and which are exculpatory, pursuant to U.S. v. Leon, on the issue of the lawlessness of the US Marshals in making a forcible entry into the home without a warrant.

62. The government had ample time (and, if the assertions that an Order to Vacate had been served on Mr. Sweeney and he was subsequently seen on the property were true), then the government should have been able to make a showing of probable cause to a magistrate in order to obtain a warrant and thereby lawfully arrest Mr. Sweeney, but the government did not seek any arrest warrant or search warrant.. U.S. Marshals simply broke in the house, arrested Mr. Sweeney, and seized all of his belongings, two houses, several cars, and fourteen acres of land, and portrayed him in the media as the scofflaw in this case.

II. HISTORY LEADING TO FEDERAL LITIGATION:

63. I prepared the following summary of the history of this case in preparation for mediation in 1998, from extensive investigations of the court files and records developed in this case and my findings are reproduced below. The Sweeneys records which the government seized included all the documentary evidence that was cited as "Tab" in an accompanying volume that supports each of the allegations below.

A. HISTORY LEADING TO LITIGATION


        August 27, 1987, the Sweeneys borrowed 1.6 million dollars from ComFed Savings Bank against two properties ("the mortgaged properties") they own in order to develop a subdivision. The financing was to continue as the Sweeneys completed each stage of the development plan. Each stage of the development would increase the value of the mortgaged property. Based upon the increased value at each stage of the development, ComFed was to advance funds for the next stage of the development. The terms of this agreement are reflected in the underlying mortgage notes. [TAB 1 - Judge Izzo, Middlesex Order of January 30, 1991, pg. 12, para. 44-52, pg. 25, para 85-86].

        The Sweeneys completed the first stage of development, increasing the value of the mortgaged property in 1988. By this time, ComFed Savings Bank, one of the parents of ComFed Mortgage, was in the throes of failure, with widespread public scandal concerning mortgage lending fraud by its officers. [TAB 1, Judge Izzo, Middlesex Order of January 30, 1991, pgs. 17-19, paras. 56-60; TAB 2 - Form 8-K filed by ComFed Savings Bank with the Securities and Exchange Commission; see narrative leading to settlement agreement.; TAB 8 - Newspaper article concerning Investigation of ComFed fraud].

        ComFed refused the Sweeneys' offers to pay back the loan and reneged on its promise to advance funds to the Sweeneys for the future development, forcing the Sweeneys into default. [TAB 1, Judge Izzo, Middlesex Order of January 30, 1991, pg. 28, paras. 94-98].


B. COMFED SALEM FORECLOSURE CASES

        ComFed Savings Bank filed two separate actions for foreclosure (one for each property) against the Sweeneys in Salem in November, 1988 ("the ComFed Salem cases") [TAB 3, Docket in ComFed Salem Case #88-3163, and TAB 4, Docket in ComFed Salem Case #88-3166.].

        By this time, the property was worth substantially more than its mortgaged amount and the Sweeneys had overcome numerous obstacles to obtain a subdivision plan and approval from the Town Planning Board. By foreclosing and obtaining the property, ComFed Savings bank would gain a substantial windfall from the now-increased value of the property that would reflect favorably on their books (at a time when the officer of the bank knew it was failing).

        The Sweeneys learned of the ComFed Salem cases in March and hired an attorney, James Frieden, who has since moved to California. Frieden apparently entered an appearance in both of the ComFed Salem foreclosure cases and did nothing else whatsoever in the Salem cases. [TAB 3, Docket in ComFed Salem Case #88-3163, and TAB 4, Docket in ComFed Salem Case #88-3166.]

C. SWEENEYS FILE SUIT - MIDDLESEX CASE

        Frieden filed suit on behalf of the Sweeneys in Middlesex ("Sweeney Middlesex case") on April 14, 1989 for damages against ComFed Savings Bank, ComFed Mortgage, Inc., ComFed Advisory Co., and a mortgage officer, Furey. The suit also sought an order permanently enjoining all ComFed defendants from foreclosing on the properties. [TAB 5 - Complaint in Sweeney Middlesex Case #MACV89-2424].

        The claims in the Sweeney Middlesex case against the ComFed entities included:

Count I: Breach of contract;

Count II: Specific performance of contract to give partial releases against defendant ComFed Savings Bank;

Count III: Fraud in connection with $1.6 million loan against defendants ComFed and Furey;

Count IV: Breach of fiduciary duty with respect to $1.6 million dollars against defendants ComFed and Furey [this count was waived by plaintiffs prior to submission of case to jury.]

Count V: Breach of contract relating to the forward commitment in relation to the payment of $65,000.00 in interest against defendant ComFed;

Count VI: Breach of fiduciary duty with respect to the forward commitment in relation to the payment of $65,000.00 in interest; constructive trust against defendants ComFed and Furey. [This count was waived by plaintiffs prior to submission of case to the jury.]

Count VII: Interference with advantageous business relation against ComFed and Furey;

Count VIII: Unfair and deceptive trade practices under Massachusetts Deceptive Trade Practices Act against all ComFed Defendants;

Count IX: Intentional infliction of emotional distress by plaintiff Rhetta Sweeney against ComFed and Furey;

        ComFed's attorney in both the ComFed Salem cases and in the Sweeney Middlesex case was John Hanify of Hanify & King. [TAB 6 - Docket in Sweeney Middlesex Case #MACV89-2424, entry].

        ComFed's Salem cases for foreclosure were not consolidated with the Sweeneys' Middlesex case against ComFed.[TABS 3 & 4 Salem docket sheets; TAB 5 Sweeney Middlesex Complaint; TABS 6, Sweeney Middlesex Docket; TAB 7, Answer of Defendants except Furey.].

        On April 11, 1989, four days before Frieden had filed the Sweeney Middlesex Case, ComFed Savings Bank had been awarded a judgment of foreclosure against one of the properties in ComFed Salem Case #88-3166. [TAB 4 - Docket in ComFed Salem Case #88-3166.]

        A Temporary Restraining Order enjoining ComFed from foreclosing on the two properties apparently issued from the Middlesex Court when the Complaint was filed. [TAB 6 - Middlesex Docket, second entry under #3 on Apr. 14, 1989, "Summons issued with interlocutory order returnable Thursday, April 27, 1989 at 2:00 p.m., in Courtroom 7A."] However, on April 25, 1989, ComFed obtained a default judgment for failure to answer in ComFed Salem Case #88-3163.

D. FAILURE TO RAISE SALEM FORECLOSURE JUDGMENTS

        (1) COMFED'S ATTORNEY, JOHN HANIFY: Hanify, as all the Comfed Defendants' attorney at that time in the Sweeney Middlesex case and as ComFed Savings Bank's attorney in the Salem cases, did not mention the foreclosure judgments from the ComFed Salem cases in the Sweeney Middlesex case, ever. (The Salem foreclosure petitions were evidentiary exhibits in the Sweeney Middlesex case, but the fact that ComFed Savings bank actually held judgments resulting from those petitions was never raised nor mentioned.)

        At the time ComFed brought its action in the ComFed Salem Cases, ComFed was required to bring all claims against the Sweeneys it could have brought. Thus, the default judgments work an estoppel against ComFed Savings bank itself in any future litigation involving these parties.

        The Sweeneys' attorney, Frieden, had entered an appearance in both of the ComFed Salem cases, but had failed to answer or file any counter-claim on behalf of the Sweeneys in either Salem case. At the least, Hanify also had a duty to his ComFed clients to have raised the Salem judgments as res judicata on behalf of ComFed Savings Bank in the Sweeneys' Middlesex case. This could have been raised as a 12(b)(6), affirmative defense or counter-claim in the Middlesex case to estop what could have been counter-claims by the Sweeneys in the Salem cases. The Sweeneys had failed to answer the Salem cases but then filed a complaint in Middlesex raising issues that could have been counter-claims in the Salem cases. [TAB 7 - Answer of ComFed Defendants in Sweeney Middlesex Case #MACV89-2424; TAB 6 - Docket in Sweeney Middlesex Case #MACV89-2424].

        Hanify also did not offer the Salem judgments as an affirmative defense, offset, or counter-claim in the Answer filed for the ComFed defendants, nor in a Rule 12(b)(6) Motion to Dismiss on behalf of his ComFed clients in the Sweeney Middlesex case. [TAB 7 - Answer of ComFed Defendants in Sweeney Middlesex Case #MACV89-2424.]

        For ComFed's attorney, Hanify, this failure to mention, much less argue, the pre-existing ComFed Salem judgments in the Sweeney Middlesex case and pursuing a money judgment on a promissory note, which was secured by a mortgage for which he had already obtained an order of foreclosure, must be viewed with suspicion, at best. It may also have been the result of willful concealment, as further set forth below.

        NOTE 1: Even though ComFed's attorney in both of the ComFed Salem cases and in the Sweeney Middlesex case was technically John Hanify, Barabara Wegener and Gerard Richer, two of Hanify's associates, filed the Salem foreclosure actions. Hanify and David McCarthy appeared in the Sweeney Middlesex case. Thus, it would appear that these preliminary problems in the ComFed Salem cases and the Sweeney Middlesex case, occurred because the right hand didn't know what the left hand was doing at the Hanify firm, and because Hanify failed to supervise the associates in the ComFed Salem cases for foreclosure.

        It is also possible that Hanify obtained the ComFed Salem case foreclosures by purposely failing to serve notice of various pending actions on the Sweeneys or their attorney. This appears likely, based upon the Sweeneys' attorney's conduct which indicates he simply did not know about these judgments (see below) and by Hanify's own otherwise unexplainable failure to mention these judgments in the Middlesex action.

        Based on the interlocutory order (TRO) in the Sweeney Middlesex case temporarily restraining ComFed Bank from pursuing its foreclosure issued on April 14 [TAB 6, Docket in Sweeney Middlesex Case #MACV89-2424, Second Entry below #3.], Hanify apparently obtained the April 25 judgment of foreclosure in ComFed Salem case #88-3163, in defiance of the Middlesex Interlocutory Order. He could only have accomplished this by failing to mention the pending litigation in Middlesex to the Salem court, and vice versa. This may also explain why Hanify never mentioned the judgments to the Middlesex Court.

        Hanify had failed to disclose the ComFed Salem judgments in the Sweeney Middlesex Case, which would have estopped his clients' counterclaims, and he had failed to raise the issues of res judicata and collateral estoppel on behalf of his clients. This failure to disclose these judgments later became significant in depriving the Sweeneys of due process and to a full and fair hearing as set forth below. Two trusts who were also plaintiffs in the Sweeney Middlesex case, Maple Leaf Trust and Canadian Realty Trust, were thus similarly deprived of due process.

        (2) SWEENEY ATTORNEY, JAMES FRIEDEN: The Sweeneys' attorney, Frieden, may not yet have known of the April 11 foreclosure judgment in the Salem case on April 14 when he filed the Sweeney Middlesex case. However, by June, when the parties were arguing in the Sweeney Middlesex case over whether ComFed could be enjoined from foreclosing [TAB 6, Middlesex docket, entries 7, 8, 9], Frieden should have inquired into the status of the ComFed Salem Cases.

        For Frieden to not know ComFed had already obtained judgments in both the ComFed Salem cases by that time would have been negligent on his part. If Frieden did know of both ComFed Salem judgments, he, too, failed to tell either the Sweeneys or the Middlesex Court. So Frieden's failure to disclose the judgments indicates either negligence, in that he did not know, or an intentional concealment, perhaps stemming from his own failure to answer the foreclosure actions in Salem that had resulted in the default judgments against the Sweeneys in the ComFed Salem cases. [TAB 9 - Lynn Inst. v. Taff, 314 Mass. 380, 50 N.E.2d 203 (1943) (holding that a party may file a counterclaim to a foreclosure action brought to satisfy the Soldiers and Sailor's Civil Relief act); see also Mass.R.Civ.P. 13(a), 365 Mass. 758 (1974), mandating compulsory counter-claims and 12(b)(9), 365 Mass. 755, completed litigation; but see State Realty Co. v. Macneil, 334 Mass. 294; 135 N.E.2d 291 (1956) (holding that the failure to file an answer or counter-claim to a foreclosure did not prevent the defendant from filing a separate suit for redemption and accounting).]

        The Sweeneys (and apparently FDIC) learned of the Salem foreclosure judgments on Friday, August 15, 1997, six years later when undersigned counsel found them.

        Either way, at a minimum, both attorneys were negligent. Frieden had failed to answer the ComFed Salem Cases and had failed to learn of or disclose the subsequent ComFed Salem judgments against his clients to either the Middlesex Court or the Sweeneys and in the Middlesex Court, he had failed to raise the issue of accord and satisfaction and res judicata presented by the ComFed Salem Judgments. He also failed to press a contempt action against ComFed for proceeding in the second foreclosure in the face of the restraining order.

E. HANIFY'S TANGLED WEB #1: CONFLICT AND CONCEALMENT LEAD TO FRAUD

        Hanify represented ComFed Savings Bank in the ComFed Salem Actions, and represented ComFed Savings Bank, ComFed Mortgage Co., and ComFed Advisory in the Sweeney Middlesex action.

        Defendant Furey originally was defaulted in the Sweeney Middlesex action. [TAB 6 - Docket in Sweeney Middlesex Case #MACV89-2424, entry 40 Default of Furey, on September 28, 1989, five months after the case was filed]. Hanify did not represent Furey originally and had not joined Furey in the answer he filed on behalf of the ComFed Defendants, but Hanify later ended up representing Furey, in what was a very clear conflict of interest by that time.

        The Sweeneys' claims, which included allegations of breach of fiduciary duty and deceptive trade practices, had been filed against these Defendants, jointly and severally. When the Sweeneys' claims were brought in April, 1989, ComFed Savings Bank was under criminal investigation [TAB 8 - Newspaper articles concerning Investigation of ComFed fraud].

        Under these circumstances, it should have been obvious to Hanify that at the very least, ComFed Mortgage, Inc., ComFed Advisory, and Furey, would hope to point the finger of blame in the direction of ComFed Savings Bank, if possible. In fact, all of the Defendants would have defenses against the interests of the others, creating a clear conflict between these Defendants' positions.

        NOTE 2: Multiple representation is barred when there is a conflict of interest among clients by S.J.C. Rule 3:07, DR 5-105(A), 382 Mass. 781 (1981); however, a conflict of interest does not arise solely because there is joint representation. Commonwealth v. Soffen, 377 Mass. 433, 438 (1979). Commonwealth v. Davis, 376 Mass. 777, 781 (1978). Rather, a conflict exists whenever there is tension between the interests of one client of an attorney and those of another. See S.J.C. rule 3:22, DR 5-105, 359 Mass. 796, 816 (1972), "when there is a conflict of interests among the potential clients." Id.

        "DR 5-105 Refusing to Accept or Continue Employment if the Interests of Another Client May Impair the Independent Professional Judgment of the Lawyer.

        "(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-105(C).

        "(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under DR 5-105 (C).

        "(C) In the situations covered by DR 5-105 (A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each."

DR 5-105.

        In cases of joint representation there "is an actual, relevant conflict of interests if, during the course of the representation, the defendants' interests do diverge with respect to a material factual or legal issue or to a course of action." Cuyler v. Sullivan, 446 U.S. 335, 356 n.3 (1980) (Marshall, J., dissenting). A.B.A. Canons of Professional Ethics, Canon 6 (1965) ("lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend that which duty to another client requires him to oppose"). Commonwealth v. Geraway, 364 Mass. 168, 178 (1973) (Tauro, C.J., and Braucher, J., dissenting), quoting from ABA Canons of Professional Ethics No. 6, "[A] lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose." Id.

        The duty of counsel is to represent a "client zealously within the bounds of the law," A.B.A. Code of Professional Responsibility, Canon 7 (1969); Rule 3:22 of the Rules of the Supreme Judicial Court, 359 Mass. 787, 818 (1971); to treat all persons involved in the legal process with consideration, A.B.A. Code of Professional Responsibility, EC 7-10 (1969); and to uphold the integrity and honor of the legal profession, A.B.A. Code of Professional Responsibility, EC 9-6 (1969).

        Based upon the filings of ComFed Bancorp, the parent of ComFed Savings Bank, with the Securities and Exchange Commission [TAB 2 - Extracts of Forms 8-K, 10-K and 10-Q filed by ComFed Savings Bank with the SEC, which never mention the Sweeney litigation], there is every indication that Hanify never advised ComFed Savings Bank, much less ComFed Mortgage, Inc., ComFed Advisory Co., or Furey, of either of the two Salem actions. If ComFed were aware of the Sweeney litigation, its parent, ComFed Bancorp, would have been required to disclose the Sweeney lawsuit in its Form 10 filed with the Security and Exchange Commission and did not. [TAB 2 - Extracts of Forms 8-K, 10-K and 10-Q filed by ComFed Bancorp with the SEC].

        These early and seemingly minor oversights, bloomed into gargantuan issues of legal malpractice by the time Judge Izzo issued her order awarding the Sweeneys $4 million dollars in the Sweeney Middlesex case (discussed below). These issues and Hanify's need to conceal his own conduct from his clients, provide the motive that fuelled Hanify's conduct throughout the remainder of his involvement in these cases.

F. SWEENEY MIDDLESEX CASE JURY VERDICT

        The Sweeneys' Middlesex case was tried to a jury from February 16 to March, 1990. The Sweeneys' claims for ComFed's violation of the Massachusetts Deceptive Trade Practices Act and for specific performance, were reserved for ruling by Judge Izzo.

        On the counts tried to the jury, the Jury awarded Rhetta Sweeney $65,000 for intentional infliction of emotional distress and found that the Sweeneys remained obligated to pay ComFed the $1.6 million mortgage.

        The Jury's verdict was entered of record on March 19, 1990. [TAB 6 - Docket in Sweeney Middlesex Case #MACV89-2424, entry #130].

        NOTE 3: Since ComFed's foreclosure was not consolidated with the Sweeney Middlesex case, and ComFed filed no counter-claim for foreclosure (but had already obtained a judgment of foreclosure), there was no lawful basis upon which the jury could try ComFed's foreclosure action or award a money judgment on the mortgage contract, other than allowing ComFed to claim an offset for damages awarded to the Sweeneys. It was not and could not have been a judgment of foreclosure because ComFed already had judgments of foreclosure from the Salem cases. ComFed never raised the issue of foreclosure in its answer in the Sweeney Middlesex case. ComFed was not entitled to a money judgment, since it already had satisfaction of the promissory notes secured by the property, by the earlier foreclosure judgments (but had not foreclosed). However, this finding alone, and that this issue was allowed to go to the jury, implicates Hanify in fraud and Frieden in malpractice for failing to disclose the underlying Salem foreclosure judgments, and implicates the Sweeneys' attorney at trial, Axelrod, in malpractice for failing to determine the disposition of the Salem cases and in failing to raise res judicata and estoppel to prevent this issue from going to the jury at all.

G. PROCEEDINGS FOLLOWING JURY VERDICT IN SWEENEY MIDDLESEX CASE:

        Following the jury verdict in March, the Judge retained two of the claims tried in the case for judgment by the Court.

        Numerous post-trial motions were heard from March 1990 through January 14, 1991 and taken under advisement by the Massachusetts Court. [TAB 6, Middlesex Docket entries #135-149 and TAB 1, Judge Izzo's Order, page 3, numbers 1-4].

        In the midst of these various motions, on December 13, 1990, the Resolution Trust Corporation was made conservator of ComFed Savings Bank. [TAB 14 - RTC appointment as conservator, December 13, 1990].

        Based upon this appointment, John Hanify claims that he embarked upon proceedings to remove the case from the Middlesex Court to Federal Court in January, 1991.

        Hanify apparently believed he had 30 days to perfect a removal, following the appointment of the RTC as Conservator on December 13, 1990. However, he did not file to substitute the RTC for the ComFed defendants, nor did he inquire about obtaining certified copies of the Court file during this time.

        At the eleventh hour, on January 10, 1991, Hanify filed a motion for substitution of the RTC for all the ComFed Defendants. This was not granted because Hanify had failed to provide proof of the appointment of RTC as conservator [TAB 6 - Middlesex Court docket, Entry 149]. On January 11, the Court, apparently believing Hanify had filed the necessary proof, granted Hanify's motion. However, a hearing was held by Judge Sullivan on January 15, 1991, at which Hanify appeared, and the Court vacated its earlier order, and granted substitution only as to ComFed Savings Bank, but not as to ComFed Mortgage Corporation, ComFed Advisory Corporation, or Defendant Furey.

        On January 14 or 11, 1991, Hanify did apparently file something with the Federal Court. In his affidavit [TAB 12], Hanify claims it was a notice of removal, though that is contradicted by the Federal Court docket [TAB 20 - Entry for "January 11, 1991" which shows the entry was made on January 14, 1997]. What Hanify apparently filed on January 14, 1991 in the State Court was simply a copy of the conservatorship papers which Hanify claims in his affidavit were filed by McCarthy on the 11th; however, the 14th is more likely because there is a docket entry to this effect in both the State and Federal courts and it apparently precipitated the hearing the next day in front of Judge Sullivan.) This is discussed in detail at II.E. Clear Fraud, below.

        Hanify called the Middlesex Court, daily, to see if Judge Izzo's order had issued on the remaining two issues tried in March. [TAB 23 - Excerpt of Congressional testimony of Senator Cohen, January 31, 1995, Senate Record, page 47, attesting that he spoke to Judge Izzo and that Hanify had called the court daily to see if Judge Izzo's order had issued yet.]

        On January 30, 1991, Judge Izzo issued a written order finding that ComFed was liable to the Sweeneys for $4 million plus pre- and post-judgment interest. Judge Izzo also added $250,000 to the $65,000 jury verdict award to Rhetta Sweeney. The order also awarded $97,000 in attorney fees to the Sweeneys.

        Hanify was given a powerful $4 million dollar incentive to get that judgment extinguished any way he could.

        On January 31, 1991, Hanify literally removed the entire original Court file, including the only existing copy of Judge Izzo's order and the docket, and kept it at his office [admitted in Hanify's affidavit, see TAB 12 - Hanify's affidavit].

        Hanify was in a position to control the circumstances that followed, personally.

        The Sweeneys were not.

III. UNLAWFUL REMOVAL

        The claim that "the case was removed on January 11, 1991" is factually and fatally wrong on several points. Owing to Judge Harrington's less than illuminating order of June 7, 1991 [TAB 15 - Order of June 7, 1997 by Judge Harrington, #91-10098], and to the allegations for the basis of removal contained in Hanify's purported Notice of Removal [TAB 16 - Notice of Removal], and as further shown in Hanify's Emergency Motion to Substitute [TAB 17 - Emergency Motion for Substitution], it is necessary to demonstrate and address the fact that Hanify and Harrington raised every possible basis for removal, except for the proper basis (which did not exist and thus, was not raised as set forth in 12 U.S.C. § 1819 and 1821, et. seq., and all without supporting law or findings).

A. FAILURE TO PERFECT REMOVAL UNDER GENERAL REMOVAL STATUTE:

        Hanify invoked the provisions of 28 U.S.C. § 1446 which governs actions removable, generally, in his "Notice of Removal," [TAB 16] . Even assuming, arguendo only, that this statute was applicable, he never accomplished the removal, much less on January 11, 1991, as he claimed.

        The provisions of 28 U.S.C. § 1446 require that to effect a removal, several conditions must be met:

        "(a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.

        "(b) The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

        "If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action."

        [. . . ]

        "(d) Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded."

28 U.S.C. § 1446 (emphasis added).

        For Hanify to have perfected a removal by January 12, 1991 he was required to:

        (1) To remove ComFed Savings Bank, the RTC had to prove its conservatorship and be substituted in the action for ComFed Savings Bank. It then had to satisfy the requirements of 12 U.S.C. 1821 and provide this proof with its Notice of Removal. (RTC had not complied with 12 U.S.C. 1821 and had nothing to provide). On this basis alone, the removal of ComFed Savings Bank was not and could not have been effected. (28 U.S.C. 1446)

        (2) Even if RTC had complied with 12 U.S.C. § 1821, to remove ComFed Savings Bank, Hanify was required to file a certified copy of the order substituting RTC, as well as a certified copy of RTC's appointment as conservator were required to be filed with the State and Federal Notices of Removal, and did not. (28 U.S.C. § 1446).

        (3) To remove the state-chartered Defendants (all defendants other than ComFed Savings Bank), RTC had to be substituted in the action for those Defendants. RTC obviously could not be substituted for Furey. To substitute for the state-chartered defendants, ComFed Mortgage or ComFed Advisory, RTC was first required to (1) comply with all requirements of HOLA to exercise conservatorship over these Defendants; (2) be substituted in the State action, and (3) provide proof of the substitution and compliance with HOLA with its Notice of Removal. [see TAB 14, page 2, regarding RTC's inability to supervise state-chartered institutions absent specific prerequisites]. RTC never did assert nor exercise such authority and these requirements were never met. Thus, there was never a basis for removing the State defendants at all. Otherwise, the only basis for removal would have required the Court to exercise its supplemental jurisdiction, which it could not do, because ComFed Savings Bank itself was never properly before the Court.

        (4) The Notice of Removal was not promptly filed with the State Court as required by 28 U.S.C. § 1446(a) and (c). What was filed was deficient because it was late and it was missing all the same things required of a Notice of Removal to have been perfected in the Federal Court, set forth above at 1-3. As shown by the State Court docket, there was no "Notice of Removal" filed with the State Court on January 11 [Tab 6, entry #149]. In fact, no notice was filed with the State Court until January 30, 1991, as shown by the Docket [Tab 6]. The State Court file Stamp on Hanify's Notice of Removal {TAB 16] also reads January 30.

        (5) Opposing parties were required to be served with a copy of the removal action ostensibly filed on January 11, but they were not.

(6) The consent of all defendants to the removal had to be obtained and shown on the face of the removal petition, which Hanify did not do (this is a fatal defect).

        (7) Subsequent to properly filing the Notice of Removal with appropriate proofs, Hanify was required to file certified copies of the State Court record with the Federal Court within 30 days, but never did.

        (8) Hanify completely missed the 30 day deadline to perfect the removal.

        (9) Hanify never filed a certified copy of the appointment of the RTC's conservatorship which formed the basis for the removal with the Notice of Removal (or otherwise, in the federal court), within the 30 day time limit. In Hanify's affidavit, [see TAB 12, paragraphs 14 and 15, where Hanify admits he obtained the entire original Court file on January 31, 1991. Oddly, he mentions that the last entry on the docket at that time read "Jan. 30, removal done." This refers to the date Hanify's Notice of Removal was file-stamped with the Court, as shown by the file-stamped copy, TAB 16, and the Middlesex docket, TAB 6, last entry under #149 on Jan. 30, 1991.]

         Thus, Hanify's "Notice of Removal" to the State Court was not effective. Even assuming arguendo only, that the removal was docketed either on January 14 (the altered entry to which he refers) or on January 30, 1991, as shown by the Court stamp, either way, he had missed the 30 day deadline for removal which had passed on January 12, 1991. However, Hanify insists he did, in fact, perfect his removal on January 11, and that the Middlesex Court Clerk never docketed his Notice. [TAB 12, paras. 7 and 31]. He offers no proof whatsoever of these claims and has no file-stamped copy of his notice to the Middlesex Court to support his claims, either.

        Hanify's "affidavit" concerning removal in itself is a hodge-podge of inadmissible hearsay and claims lacking any evidentiary foundation whatsoever that should never have seen the light of day. It wholly fails to comply with the requirements that an affidavit set forth affirmatively that the affiant is competent to testify and that his statements are made under penalty for perjury. It also demonstrates on its face that statements within it could not possibly be based upon personal knowledge. For example, Hanify attests to "personal knowledge" of events which occurred wholly outside his sight or hearing and which are clearly inadmissible hearsay, i.e., attesting to what McCarthy and various others from his office did while over at the Middlesex Court; attesting what Judge Sullivan said to McCarthy, which is hearsay on hearsay; offering a completely hearsay, unauthenticated Courier service receipt to "prove" that a copy of the Notice of Removal was "delivered" to the court (also inadmissible for improper foundation, violation of the best evidence rule).

        (9) The affidavit otherwise fails to satisfy the Federal Rules of Evidence for admissibility on several bases,. such as improper foundation, best-evidence rule, and hearsay-on-hearsay. For example, the "delivery receipt" referenced in Hanify's affidavit is a record compiled by someone else, somewhere else, from facts clearly outside Hanify's knowledge. Even if the receipt were authenticated and supported, it proves nothing more than that something was delivered by a courier to the business office of the Middlesex Court, not that any written copy of a Notice of Removal was filed with the Middlesex Court..

IV. NO JURISDICTION, EVER, NOT THEN, NOT NOW

        64. The following is a summation that in one form or another I have presented (except the "More New Evidence" section, which is recent) to both the US Attorneys Office and to Nancy McGillivray in efforts to show them that the entire proceeding had been unlawful and there was no basis to serve any orders on the Sweeneys:

I. BACKGROUND: UNDERLYING STATE COURT PROCEEDINGS

        There are two underlying state court cases, one in Essex and one in Middlesex, that are critical to the Court's understanding of why the Federal Court not only did not, but could not have had jurisdiction over the current case at any time.

        The federal government was not a party at the inception of either the Essex or Middlesex case at their inception. There was no federal question involved in either case, there was no federal agency involved, and no basis whatsoever for any party to remove either case to federal court nor any basis upon which the Federal Court could have exercised jurisdiction.

        In December, 1991, ComFed Savings bank failed and the RTC became its receiver. The RTC was eligible to be substituted into any underlying state court action by law. If it were substituted as a party in either or both actions, because it was a federal agency (and because there was also a federal statute applicable to the RTC), the RTC could then invoke the Federal Court's jurisdiction and remove the case.

        The threshold question the Federal Court was required to address in USDC Mass. Civil Cause number #91-10098WD, and upon which every order in the subsequently filed cases of USDC Mass. Civil Cause #96-11866EFH, and #96-11864 were derived was: Jurisdiction.

        It is critical for the court to examine the status of both these underlying cases (only one has been partially examined before and that was not presented clearly) to recognize the grievous errors committed in removing the Middlesex action to Federal Court. It is also critical for the Court to pay close attention to the named parties in the two separate cases in Middlesex and Essex, to understand why the removal was unlawful. It is also critical for the Court to examine the nature of the complaints and counter-claims, and the parties, in both cases, to understand why there was never any lawful removal to the Federal Court.

        In 1989, ComFed Savings Bank sued Rhetta Sweeney as Trustee of two trusts in Essex Superior Court. The trusts held title to two properties ("the properties"). ComFed Savings Bank sued the two trusts for foreclosure of the properties and was awarded judgments of foreclosure in both those cases in 1989. Thus, any action for foreclosure was res judicata as to the two trusts as of the date of the Essex judgment of foreclosure in 1989 against the trusts. Neither of these actions was ever removed to federal court at any time. Rhetta and John Sweeney were not the holders of the titles to the properties, the trusts were. This is a critical issue.

        John Hanify's associates in Hanify and King were attorneys of record for ComFed in the Essex cases and this is an important point, too, since John Hanify later represented ComFed Savings Bank in Middlesex Court, which formed the basis for the subsequent underlying cause #91-10098WD in Federal Court, in which he also represented ComFed, so he can't claim he did not know about the Essex judgments.

        While the Essex cases were pending, Rhetta Sweeney and John Sweeney, individually, and Rhetta Sweeney as trustee of the trusts, sued ComFed Savings Bank, a federally chartered national savings bank, ComFed Advisory Co., Inc. and its state-chartered subsidiary mortgage company, ComFed Mortgage Co. ("The ComFed Defendants") and one of the mortgage company's officers, Furey, in Middlesex Court for fraud, intentional infliction of emotional distress, and violation of the Massachusetts Deceptive Trade Practices Act.

        Default judgment was awarded against Furey, an officer of ComFed Mortgage for failing to answer and this was entered of record in the Middlesex docket, entry #40, September 28, 1989.
        ComFed Bank, ComFed Mortgage and ComFed Advisory filed an answer and a counter-claim to the Middlesex action, in which they sued Rhetta and John Sweeney, individually, and Rhetta Sweeney as Trustee of the trusts, for breach of contract and for a money judgment on a mortgage note for their failure to pay payments on the mortgage note; however, this was the same mortgage and note upon which ComFed Savings Bank had already been awarded a judgment of foreclosure the same year in Essex Superior Court against the two Trusts.

        Thus, in the Middlesex Case, as to the Trusts, all the ComFed Defendants were estopped from counter-claiming against the trusts for a money judgment, by virtue of res judicata.

        At best, the ComFed Defendants in their Middlesex counter-claims would have been entitled to a deficiency judgment against the trusts, after their foreclosure judgments were executed, but ComFed Savings Bank never attempted to execute its foreclosure judgments from the Essex Court.

        In the counter-claims in Middlesex, the ComFed Defendants were not suing for foreclosure, they were suing for a money judgment and they were only entitled to a money judgment against John and Rhetta Sweeney, who did not hold title to the properties, and thus, any subsequent "foreclosure" awarded against the properties as to John and Rhetta Sweeney individually would not only be absurd, but clearly void.

        ComFed took an interlocutory appeal in the Middlesex Case which is reflected in the Docket. This appeal was denied and ComFed appealed to the full panel of the Massachusetts Appellate court. This appeal remained pending when ComFed Savings Bank purports to have "removed" the case from the lower court (but not from the Appellate Court) on January 11, 1991, based upon the RTC becoming Conservator of ComFed Savings bank on December 12, 1990.

        Based upon this conservatorship, the RTC was entitled to substitute itself into the case for ComFed.

        If and only if, the RTC was substituted into the case, however, was a federal agency suddenly a party, and this would be the sole basis upon which the case could be removed to federal court.

        If and only if the RTC was substituted into the case, would there be a "federal party" that would have standing to invoke FIRREA, either. There was no party with standing to invoke FIRREA if the RTC were not a party to the case.

        The federal removal statute requires that a party remove a case within 30 days of learning the basis for the removal. This meant that the RTC had to first be substituted before removal could occur and the removal had to occur on or before January 11, 1991.

        Accepting ComFed's assertion that it filed its notice of removal on January 11, 1991, with the Federal Court as true, that assertion is an admission that defeated the Federal Court's exercise of jurisdiction.

        There is no question that no subsequent notice of removal was ever filed.

        On January 11, 1991, the last day the RTC could have removed this case, the RTC was not a party in the Middlesex case and thus, the "Notice of Removal" filed on January 11, 1991, was void.

        It is a matter of record (and subsequently further admitted by ComFed itself in a motion filed in Federal Cause #91-10098WD on August 31, 1993) that the RTC was not substituted in the Middlesex case until January 14, 1991 -- three days too late for the RTC to remove the case. It also never filed a subsequent notice of removal on any other basis.

        On January 14, a hearing was held on the removal that centered on the issue of what was done on January 11 but which completely overlooked the fact that anything that did occur on January 11 was irrelevant because as of January 11, no substitution had occurred, no federal party was involved, and the Federal Court had no authority nor jurisdiction to make any further determination whatsoever.

        The "changes" in the docket raised by Hanify as if they were made in the Middlesex Docket to aid Judge Izzo's order, were in fact changes in the docket that aided Hanify, by making it appear that an order of removal had issued, when it had not, from Judge Sullivan's court. This did not occur because ComFed had failed to demonstrate on January 11 that there was a basis for removal to the Court's satisfaction.

        Proof that it did not is that there was a subsequent hearing on January 14, attended by Hanify and King, at which substitution was granted only as to ComFed Savings Bank and this is in fact reflected in the Court's docket and mentioned in Hanify's own affidavit (in which he attests that DiMao was an assistant clerk, but in fact, he was the lowest echelon docket clerk in the Middlesex Court at the time. This attestation is material to other assertions in Hanify's affidavit that proves there are perjured statements in the affidavit, as well, but which are not necessary to this present issue).

        Further proof that there was no federal party involved in the Middlesex case on January 11, 1991 is found in the admission by ComFed Savings Bank, filed as a "Motion for Substitution" on August 31, 1993, in USDC Mass. Civil Case # 91-10098WD.

        There is no possibility that the case was removed within 30 days, as required by law, on January 11, 1991, as purported, because there was no legal basis upon which the Federal Court's jurisdiction could have been invoked, and there is no possibility the Federal Court acquired any jurisdiction over the case at all. EVERYTHING WHICH FOLLOWED WAS VOID AB INITIO.

        Without any dispute over what date Judge Izzo's order issued (whether January 30 or 31) on the Sweeney's claims in the Middlesex case, the following situations also precluded the Court's exercise of jurisdiction at the time ComFed purported removed this case:

        1. The Essex case had already been to judgment, awarding foreclosure to ComFed. It was not appealed by either party. Subsequent proceedings had to remain in state court unless removed on some basis, which was never done at all. This worked an estoppel in both the Middelesex case, as to ComFed Savings Bank and any claims against the Trusts, as well as in any subsequent removal to federal court, as to the trusts, who held title to the properties.

        2. A default judgment against ComFed's officer Furey, had been awarded in 1989 and thus, Furey could not have been removed with the Middlesex case because it was a final judgment, which was not appealed, and the Sweeneys were entitled to proceed with execution of that judgment in State Court.

        3. A jury verdict had been entered in the Middlesex case for a money judgment against the Sweeneys in November, 1990 and for a money judgment of $65,000 against ComFed in favor of the Sweeneys. [These judgments were in fact entered as reflected in the Docket in November, 1990, contrary to the Court's finding in US District Court case ##91-10098WD].

        Additionally, even assuming arguendo only, that the case was legally removed, the Court failed to follow the law on many bases in the subsequent proceedings:

        1. In the US DC Mass Civil Case, #91-10098WD, based on the Middlesex action, ComFed improperly requested a "foreclosure" based on the Middlesex jury verdict because only a money judgment was at issue or awarded.

        2. Only a money judgment against John and Rhetta Sweeney could have been awarded, no money judgment could have been awarded against the Trusts, because ComFed already had a foreclosure judgment against the Trusts from the Essex action.
        3. John and Rhetta Sweeney did not hold title to the properties, so the Court could not issue a judgment of foreclosure against the properties as to John and Rhetta Sweeney, either.

        4. In execution of the money judgment, the Court was required to allow the Sweeneys to exempt statutorily mandated exemptions from execution, and failed to do so.

        5. In execution of any foreclosure (though it is clear the federal court had no foreclosure issue before it), the Court was also required to follow Massachusetts law, which required the Court to hold a jury trial on the issue of evicting the Sweeneys which it never did do, either.

        The only thing the court could have entertained as a judgment against the Sweeneys or the Trusts in this case would have been a money judgment against John and Rhetta Sweeney, and to do that, the Court was required to follow Massachusetts and federal law, to afford the Sweeneys a jury trial on the issue of eviction, and to observe their statutorily accorded rights to exempt property from execution.

        The Sweeneys were further prevented from executing their judgment against Furey because the entire original state Court file was literally taken from the State Court to the federal court by John Hanify, where it has remained variously impounded and sealed, depriving the Sweeneys of the ability to execute their judgment of $4 million against Furey and from which they could have easily paid any money judgment which was awarded against them.

        The unlawful physical removal of the file absent compliance with strictly construed removal guidelines, by John Hanify, was plainly and openly unlawful. He was aided in this endeavor by his personal friend, Judge Edward F. Harrington, who has acted unlawfully throughout the course of these cases before him as further set forth below at part III, Duty to Recuse.

II. UNLAWFUL REMOVAL - NO FEDERAL JURISDICTION
USDC Mass. #91-10098WD
(upon which the subsequent cases of
USDC Mass. #96-11866EFH, and 96-11864 rely
and which are therefore also void ab initio)

        'Defendants generally may remove 'any civil action brought in a State court of which the [federal] district courts . . . have original jurisdiction.' 28 U. S. C. Section 1441(a). The district courts' original jurisdiction encompasses cases 'arising under the Constitution, laws, or treaties of the United States,' Section 1331, and an action satisfies this requirement when the plaintiff's well-pleaded complaint raises issues of federal law, Metropolitan Life Ins. Co. v. Taylor, 481 U. S. 58, 63.

Chicago v. International College of Surgeons ("ICS"), slip. op., Oct. Term 1997 (U.S.)

        All of the Sweeney's claims in their original state complaint were state law claims, against a bank, a mortgage company, and a bank officer, all residents of Massachusetts.

        Thus, the only basis upon which the Federal court could have obtained jurisdiction in this case would be the substitution of the RTC as a party , which would thereby create the necessary standing to invoke a "law of the United States" (the Firrea Statute), which would be the only basis upon which the Federal Court could assume jurisdiction.

        Contrary to the FDIC's claims of "it's res judicata" or "it's been up to the Supreme Court and back," no court has reviewed this issue. The trial Court and the court of appeals reviewed only an issue of "venue," however, the issue of Jurisdiction arises only under the authority of the U.S. Constitution. It is not waiverable. U.S. Const. Art. III, Sec. 2, Cl 1. and see 28 U.S.C. 1441. Jurisdiction was a threshold issue that was never addressed at all. Jurisdiction is a Constitutionally limited issue that either exists or does not. If the federal court had no jurisdiction, nothing that occurred in the federal court subsequently has any legal standing whatsoever, it is void.

        The State Court docket and John Hanify's affidavit demonstrate that the RTC was not a party on January 11, 1991, the last date to remove, and thus, any "notice of removal" filed on that date, was void and without effect, because there was no party with standing to invoke the federal court's jurisdiction. The RTC did not become a party, if at all, until January 14, 1991.

        ADMISSION BY RTC/FDIC: The RTC, in its belated motion for substitution filed on August 31, 1993, with the federal court, admits that no substitution of the RTC ever occurred.
        If no substitution occurred, there was absolutely no basis for removal and no party to the removal had any standing to invoke the federal court's jurisdiction.

        Additionally, all the defendants must consent to the removal at the time of the removal and this consent must be apparent in the removal paperwork, yet it was not.

        The lack of jurisdiction occurred because under 28 U.S.C. § 1446,5 the RTC had 30 days to remove, when a basis for federal jurisdiction became known. That basis occurred when the RTC was appointed Conservator of ComFed on December 12, 1990. A federal statute allows the RTC to elect to proceed in federal court, thereby invoking 28 U.S.C. § 1441 and removing according to § 1446. Therefore, the RTC had 30 days to remove once RTC became a party to the case. The RTC did not become a party to the case until January 14, 1991 -- more than 30 days after it could have removed. Subsequently, John Hanify, the RTC's attorney, engaged in an elaborate charade, which has involved record tampering and obstruction of justice -- both of which are federal crimes -- by a Federal Court clerk, as well as John Hanify, who physically removed the entire original State Court file and secreted it in his office, and presented less than all of it to the federal Court.

        A file stamped copy of Hanify's "Notice of Removal," dated January 30, 1991, by the Middlesex (State) Court, also demonstrates that the RTC's removal did not occur by January 11, 1991 (within 30 days). This notice to the Court was required by § 1441 to be served "promptly" upon filing a notice of removal with the Federal Court, 28 U.S.C. § 1441 (and within 30 days or by January 11, 1991). Not only does the file-stamp on the date this notice was provided to the State Court show the notice was not served before January 11, the case could not have been removed since the RTC was not a party, if it ever was, before January 14, 1991, the date Judge Sullivan of the Middlesex Court granted RTC's motion to substitute.

        In fact, the only contemporaneous evidence that even gives the appearance that a removal occurred on January 11, 1991, is a federal court file-stamped "Notice of Removal" stamped as "received" on January 11, 1991, but even this "Notice of Removal" was not actually entered in the federal court until February, which the Federal Court's own computer records show.

        The January 11 file stamp, however, raises the issues of obstruction of justice and tampering with official records, not some mere clerical correction, since the RTC was not substituted into the case on January 11 and could not have removed nor could Hanify have filed a notice of removal on that date. In other words, it is evidence of criminal conduct that to date has gone unprosecuted.

        The existing Court dockets plainly show this case was not removed from the State Court and could not have been because the RTC was never a party before the removal deadline of January 11, 1991.

        The case had already been to trial and judgment in the State (Middlesex) Court before the unlawful removal occured. The State Court had awarded the Sweeneys in excess of $2 million dollars in the underlying case in 1991. The manifest injustice results from the very fact that the rule had no application in this case whatsoever, when no federal party had been substituted into the action, and the removal which was accomplished unlawfully, was done for the express purpose of seeking the Court's application of this doctrine to the case, in order to foreclose the $2.3 million judgment (now work in excess of $7 million) in favor of the Sweeneys.

        Judge Harrington adopted the judgment in favor of ComFed, but failed to instate the judgments in favor of the Sweeneys, while at the same time, failing to hold any evidentiary hearing on these issues, but declaring in his written order that he was "familiar with the facts." This could only have occurred through ex parte, and therefore, unlawful familiarity with those facts, and denied the Sweeneys the opportunity for hearing and notice and to thorough and sifting cross examination. Further, in a recent decision by the Court of Appeals for the First Circuit, Harrington's actions were inconsistent, in that if he had jurisdiction at all, his duty was to bind the case for appeal to the Circuit Court of Appeals, on the underlying Middlesex Decisions.

        NEW EVIDENCE: A final proof that this case was not removed to federal court is that ComFed, by its attorney, John Hanify, took an appeal of the State Court case to the Massachusetts Appellate Court. This state court Appeal was pending in the Massachusetts Appellate Court in January 1991 when Hanify claimed to have "removed" the case from the trial court to the Federal Court. In January, contemporaneous to his claimed date of "removing" the action to federal court, John Hanify filed a motion with the Massachusetts Appellate Court to extend the time to file the brief in the pending appeal. On February 15, 1991, after his claimed "removal" to federal court, Hanify filed a motion to dismiss the appeal, which was denied. The appeal was not dismissed until April, 1991 -- months after the supposed so-called "removal" to federal court. Hanify never even attempted to remove the case from the Massachusetts Appellate Court, either. Attached hereto is a copy of the State Appellate Court's docket.

        MORE NEW EVIDENCE: The IRS has demanded the Sweeneys pay 1/2 million in taxes, claiming that the government abandoned the debt (the one the FDIC and US Marshals seized the Sweeneys houses for) in 1994 and that this means the "debt" was forgiven so it is income to the Sweeneys and they must pay taxes on it. This demonstrates that the FDIC new it was committing fraud in proceeding with its so-called "foreclosure." This, too, proves that the FDIC had no authority to seize the properties in this case.

III. DUTY TO RECUSE:

        The Judge in this case, Edward F. Harrington, at all times knew or should have known that he had multiple bases upon which his disqualification was and remains mandatory by law. 28 U.S.C. 455. In the underlying case, U.S. District Court #91-10098WD, which forms the basis for the continuing orders in the cases of 96-11864EFH and 96-11866EFH, and all of which were heard before Judge Edward F. Harrington, the following bases for mandatory disqualification existed and now exist, and all of which Judge Harrington knew at all times and all of which precluded Judge E. F. Harrington from exercising authority at the inception of the underlying case, and at all times subsequently:

        John Hanify, the lawyer for the Defendant, ComFed Bank, in the underlying case, and then for the Resolution Trust Company, brought this case to the Federal Court through procedurally illegal mechanisms, as further set forth below under "Jurisdiction," appearing before Judge Harrington on the threshold issue of "jurisdiction."

        Federal Judge EDWARD HARRINGTON formerly worked with John Hanify in the U.S. Attorney's office in Boston and continued to work in the U.S. Attorney's office, when Hanify became involved in this case, and then became the judge in the case, with Hanify appearing before him representing the RTC.

        JOHN HANIFY was a material witness at the critical hearing on the issue upon which the Court's sole basis for jurisdiction was determined, which was the illegal removal of the underlying State Court cause to Federal Court, by John Hanify. Judge Harrington had a clear and mandatory disqualification on this basis that was not waiverable. 28 U.S.C. 455.

        Demonstrating the clear bias resulting from Judge Harrington's failure to disqualify, even though an evidentiary hearing was held on the issue of John Hanify's removal of the Middlesex Court file, Edward Harrington accepted a "group affidavit" from Hanify that was wholly deficient under Fed.R.Civ.P. 56 on its face, in lieu of testimony by John Hanify, who was present for hearing and was not allowed to be subjected to cross-examination.

        Additionally, JOHN HANIFY is the original lawyer for ComFed Savings Bank, who then represented the government's Resolution Trust Corp. (RTC), the agency that took over the failed bank and was supposed to investigate the fraud of the bank's officers and lawyers, a clear conflict of interest. Disciplinary Rule 5-102(A), 359 Mass. 796 (1972), provides that an attorney who learns that he 'ought to be called as a witness on behalf of his client . . . shall withdraw from the conduct of the trial . . . .' One of the reasons for this rule is that if a lawyer appears both as an advocate and witness, 'he becomes more easily impeachable for interest and thus may be a less effective witness." Borman v. Borman, 378 Mass. 775, 786, 393 N.E.2d 847, 855 (1979) relied upon in Siguelan v. Allstate, unpublished First Circuit Opinion, March 10, 1995.

        Judge Harrington knew this conflict clearly existed, that Hanify's conduct and self-serving testimony and perjured affidavit were in fact the linchpin of the "lawfulness" of the removal action, and the sole basis upon which the Court's purported jurisdiction derived, but allowed John Hanify to continue in this representation.

        EDWARD HANIFY is John Hanify's father. Ed Hanify's lawfirm is ROPES and GRAY. Ropes and Gray also appeared in the case after Hanify took it to Judge Harrington.
        Judge Harrington was nominated to his current position by Ted Kennedy. Ed Hanify (John Hanify's father, of ROPES and GRAY) testified before Congress on behalf of Judge Harrington's nomination to rescue the nomination after the Massachusetts. Bar Association testified against Harrington's nomination.

        Ed Hanify's lawfirm, Ropes and Gray, represented Ted Kennedy in the Chappaquidick litigation. Kennedy owes his career to Ropes and Gray, and Judge Harrington owes his Federal Judgeship to both Kennedy and to Ropes and Gray.

        Every one of the above is reasons Harrington was disqualified from acting in this case.
        However, finally, Judge Ed Harrington's son, WILLIAM T. HARRINGTON, two years ago, went to work for John Hanify's lawfirm while the Sweeneys' case was before Judge Harrington and has worked there for the past two years until last week, including on the day Judge Harrington issued the Feb. 19, 1998 "ex parte" order on application of non-parties.

[Here, 28 U.S.C. § 455, "Disqualification of justice, judge, or magistrate," and 18 U.S.C. § 201, "Bribery of public officials and witnesses," reproduced above, were inserted and are not reproduced here for brevity.]

        Judge Harrington has heard other cases presented by Hanify during this same period and it is clear that Harrington's son was given a job, right out of lawschool, by Hanify, while these cases were pending, and that Hanify and Harrington know one another, both from past work associations, as well as presently. There is no basis upon which Judge Harrington can deny that his duty to disqualify was mandatory, nor that the employment of his son by Hanify gives the clear appearance that felonious conduct, to wit, bribery, has in fact occurred.

IV. EFFECT OF UNLAWFUL CONDUCT:

        More than $4 million dollars was at stake in the Sweeney case, because Hanify learned that the State Court judge had issued a judgment awarding $4 million against his client, at which point it became imperative that he try to make the void January 11, 1991 "notice of removal" stick one way or another, and concocted his elaborate smokescreen over the issue of whether Judge Izzo's order issued on January 30 or 31 as a way to cover up docket entry changes that had nothing to do with Judge Izzo's order, but which in fact, made it appear Hanify had gotten his substitution on January 11, so that the "notice of removal" was not void.

        Judge Harrington allowed John Hanify to appear as a material witness before him, allowed Ropes and Gray to appear to represent Hanify, and then accepted a wholly facially deficient affidavit, in lieu of allowing Hanify to be cross-examined on the witness stand on the issue of the lawfulness of the removal of the case to Federal Court from state court, an issue that was absolutely critical to the Court's determination of jurisdiction.

        Only by a hearing before Judge Harrington were these procedural deficiencies ratified. Falsified evidence, much of it contained in the Affidavit of John Hanify, was admitted and ratified. The entire matter was submitted to the Federal Appellate Court in a misrepresentative manner, by the language of the order issued by Harrington, which wholly failed to address the issue of which parties, if any, were removed in the case, what issues were res judicata resulting from the Essex case, and what issues were res judicata resulting from the Middlesex case, and what effect the failure to remove either the Essex case or the pending Appeal in the Massachusetts State Court had on any attempted removal of the Middlesex case.

        The resulting order of 1991, granting summary judgment to ComFed/RTC, wholly failed to determine the mandatory, Constitutionally limited, threshold issue of jurisdiction, while addressing, instead, an issue of "venue."

         It was the jurisdictional issue which was the motivation and purpose behind Hanify's fraudulent conduct taken to avoid the consequences of his failure to timely substitute the RTC into this action, as well as the Judge's participation in the ratification and furtherance of that fraud. At all times in the underlying case and subsequently, Judge Edward Harrington knew or should have known the removal was unlawful and that the Federal Court's jurisdiction could not have been and was not invoked. If the Federal Court had no jurisdiction, everything which occurred in this case subsequently was void ab initio.

IV. FUNDAMENTAL DEFECTS:

        The Sweeneys were entitled to a jury trial on the issue of eviction. No hearing, much less a jury trial, on the issue of eviction has ever been held. They were further entitled to exempt property from execution. 28 U.S.C. 3014 and 11 U.S.C. 522, and pursuant to Massachusetts law.

        "As a starting point, it is to be recognized that Massachusetts has long accorded tenants both a constitutional and a statutory right to a jury trial in eviction cases. Davis v. Alden, 2 Gray 309, 312 (1854). It is familiar law that the right of trial by jury secured by art. 15 of the Declaration of Rights is sacred and must be sedulously guarded against every encroachment, yet it may be regulated as to the mode in which the right shall be exercised so long as such regulation does not impair the substance of the right." H. K. Webster Co. v. Mann, 269 Mass. 381, 385 (1929). Fratantonio v. Atlantic Refining Co. 297 Mass. 21, 24 (1937)."

Kargman v. Marjorie E., 359 N.E.2d 971, 5 Mass. App. Ct. 101 (1977).

        "The United States Supreme Court has held that the Seventh Amendment to the Federal Constitution guarantees the right to a trial by jury in an action brought in the District of Columbia for the recovery of possession of premises."
Pernell v. Southall Realty, 416 U.S. 363 (1974).

V. STANDING

(affecting both the Court's lack of jurisdiction for lack of standing to invoke it at the time of the purported removal, as well as the lack of standing of either the Marshals or the US Attorney to ask for any relief in this case):

        The merits of a claim are preceded in court by the threshold question of standing. Standing is similar to, though not identical with, the real party in interest requirement of Fed.R.Civ.P. 17(A). The point of both requirements is to insure that the party before the court has a substantive right to enforce the claim that is being made in the litigation. The doctrine of standing is "an essential and unchanging part of the case-or-controversy requirement of Article III," Lujan v. Defenders of Wildlife, 504 U.S. ___ (1992), which itself "defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded," Allen v. Wright, 468 U.S. 737, 750 (1984).

        It has been established by a long line of cases that a party seeking to invoke a court's jurisdiction must demonstrate three things: (1) "injury in fact," by which we mean an invasion of a legally protected interest that is "(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical," Lujan 504 U.S. at ___ ; (2) a causal relationship between the injury and the challenged conduct, by which we mean that the injury "fairly can be traced to the challenged action of the defendant," and has not resulted "from the independent action of some third party not before the court," Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41-42 (1976); and (3) a likelihood that the injury will be redressed by a favorable decision, by which we mean that the "prospect of obtaining relief from the injury as a result of a favorable ruling" is not "too speculative," Allen v. Wright, 468 U.S. at 752.

        These elements are the "irreducible minimum," Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982), required by the Constitution. Assoc. Gen. Contractors v. City of Jacksonville, No. 91-1721 (1993).

        The U.S. Marshals and U.S. Attorney had no legal standing in this case and the Court had no jurisdiction to entertain any motion from them whatsoever. In issuing these ex parte orders to persons not a party to the case, the Court acted wholly without jurisdiction; in the face of the Court's further duty to disqualify, the Court acted completely without authority as well.

VI. Ex Parte Application for any sort of Injunction, TRO, or "Eviction" Order
        "For more than a century the central meaning of procedural due process has been clear: 'Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.' Baldwin v. Hale, 1 Wall. 223, 233. See Windsor v. McVeigh, 93 U.S. 274; Hovey v. Elliott, 167 U.S. 409; Grannis v. Ordean, 234 U.S. 385. It is equally fundamental that the right to notice and an opportunity to be heard 'must be granted at a meaningful time and in a meaningful manner.' Armstrong v. Manzo, 380 U.S. 545, 552." Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972).

        "This is no new principle of constitutional law. The right to a prior hearing has long been recognized by this Court under the Fourteenth and Fifth Amendments. Although the Court has held that due process tolerates variances in the form of a hearing "appropriate to the nature of the case," Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 313, and "depending upon the importance of the interests involved and the nature of the subsequent proceedings [if any]," Boddie v. Connecticut, 401 U.S. 371, 378, the Court has traditionally insisted that, whatever its form, opportunity for that hearing must be provided before the deprivation at issue takes effect, e. g., Bell v. Burson, 402 U.S. 535, 542; Wisconsin v. Constantineau, 400 U.S. 433, 437; Goldberg v. Kelly, 397 U.S. 254; Armstrong v. Manzo, 380 U.S., at 551; Mullane v. Central Hanover Tr. Co., supra, at 313; Opp Cotton Mills v. Administrator, 312 U.S. 126, 152-153; United States v. Illinois Central R. Co., 291 U.S. 457, 463; Londoner v. City & County of Denver, 210 U.S. 373, 385-386. See In re Ruffalo, 390 U.S. 544, 550-551. 'That the hearing required by due process is subject to waiver, and is not fixed in form does not affect its root requirement that an individual be given an opportunity for a hearing before he is deprived of any significant property interest, except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.' Boddie v. Connecticut, supra, at 378-379 (emphasis in original)."

Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972).

        In issuing the ex parte orders to persons without standing in this case, and without hearing or notice to the Sweeneys, the Court acted completely in violation of the Due Process mandates of the Constitution of the United States and therefore acted unlawfully. The Court, the U.S. Marshal's Service and U.S. Attorney's office also thereby acted in the face of clear notice to them of these unlawful activities and in willful violation of 18 U.S.C. § 241, acting in concert and secrecy to use unlawful Court process to deprive the Sweeneys of due process of law and to the equal protections of the law.

VII. INJUNCTION OVERBROAD AND UNCONSTITUTIONAL

        Aside from the fact that the February 19, 1998 order was issued on the secret application of persons who have no standing in this case, it is unConstitutional on its face in that:

        The order, which is clearly an injunction, has the effect of a prior restraint upon the Constitutionally protected rights of the Sweeneys as well as a broad range of unnamed persons, preventing them from exercising their Constitutionally protected right to travel, the right to peaceably assemble, the right to free speech, and the right of free association, in the face of the threat of unlawful arrest for "contempt of court" on an order which none of them was presented an opportunity to challenge in any manner.

         The U.S. Marshals service has gone to the homes and businesses of people who are not named in the injunction, but who obviously could have been, in order to serve them and in order to simultaneously intimidate and terrorize their business associates and families by their mere presence with this supposedly .

        Even though the order was impounded and sealed, and therefore cannot even lawfully be publicized, it is being used to threaten anyone who comes near the property with arrest for "contempt of court" and it is being used to frame a criminal charge, which otherwise does not and could not exist, against the Sweeneys in order to then give the Marshals an arrest warrant and powers to be on the property that they otherwise did not have. This is in fact how the order was recently used in arresting John Sweeney on the property on a charge of "Contempt of Court," 18 U.S.C. 401, in violation of this order, even though the order itself was issued secretly and unlawfully and was sealed and could not have been served in the face of the impoundment and sealing.

        Neither ComFed Bank nor the FDIC made application for this order and there are no posted "no trespassing" signs on the property. There is no federal law against trespassing applicable to this case or the private property in question, and there are no laws being violated by any person coming to or leaving that property. There has been no noise, violence or other basis upon which any person could seek to restrain the conduct of anyone in coming to or from the property or going upon it, and certainly not upon the application of persons not party to the case.

        There was no authority for this injunction to issue in any form, but in the manner it has issued, it works in violation of the rights of all persons present on the property to due process (U.S.Const.Amend. V), to notice and hearing, id., to confront witnesses against them, id., to be free of unreasonable search and seizure, id., and to freely associate (U.S. Const. Amend. I), to freely travel, all as protected by the U.S. Constitution (Art.6, Sec. II). Conducted in secret, the hearing on the injunction itself denied any person who should have been accorded notice and hearing the right to confront the evidence presented against them to obtain this relief.

VIII. Manifest injustice

        Relief may be accorded at any time on the basis of manifest injustice. The passage of time is of no moment, having been applied to cases over 10 years old and further finding neither stare decisis nor res judicata applicable in the face of manifest injustice, fraud, and new evidence, see, e.g., Simon v. Southern Railway Company, 236 U.S. 115, 59 L. Ed. 492, 35 S. Ct. 255 (1915); Indian Head Nat'l Bank Nashua v. Brunelle, 689 F.2d 245 (1st Cir. 1982); Geo. Reintjes Co. v. Riley Stoker Corp., slip. op. No. 95-1552 (1st Cir. December 7, 1995); Bradley v. School Board of Richmond, 416 U.S. 696, 711, 40 L. Ed. 2d 476, 94 S. Ct. 2006 (1974); New England Power Co. v. United States, 693 F.2d 239, 244 (1st Cir. 1982); Agostini v. Felton, slip. op. 96-552, heard with No. 96-553, Chancellor v. Felton et al., (U.S., June 23, 1997).

        There could not be a clearer case of manifest injustice, when the Sweeneys have been deprived of a State Court judgment in excess of $4 million dollars, by a Court assuming jurisdiction it had no lawful authority to assume, and by a judge exercising authority in a case in which he had multiple mandatory bases to disqualify, and by failing to observe clear issues of res judicata and estoppel already existing from State Court decisions which were never removed.

FURTHER AFFIANT SAYETH NOT this 19th day of February, 1999.


                             
                                Linda Thompson
                                200 Reynolds St.
                                Brundidge, AL 36010
                                (334) 735-9050