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United States of America v. James Kimsey

February 8, 2012

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JAMES KIMSEY, DEFENDANT-APPELLANT.



D.C. No.2:08-cv-00635- PMP-GWF Appeal from the United States District Court for the District of Nevada Philip M. Pro, District Judge, Presiding

The opinion of the court was delivered by: Berzon, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted August 31, 2011-San Francisco, California

Before: Marsha S. Berzon and Jay S. Bybee, Circuit Judges, and James L. Graham, Senior District Judge.*fn1

Opinion by Judge Berzon

OPINION

James Edward Kimsey ("Kimsey") has in the past engaged in the unauthorized practice of law as well as other dishonest activities involving the legal system. Alluding to his recent exploits, the government characterized Kimsey as a charlatan. Whether that is so or not, our legal system does not punish people simply because they have been proven unscrupulous in the past and are continuing to engage in dubious activities. That is why "the government may not . . . prove that the defendant is a bad person, simply to show that in all likelihood he acted criminally on the occasion at issue." United States v. Martinez, 182 F.3d 1107, 1111 (9th Cir. 1999). Rather, the legal system punishes people for proven violations of specific laws.

In the case before us, Kimsey was convicted of criminal contempt of court in violation of 18 U.S.C. § 402. The contemptuous act for which the district judge convicted Kimsey, who is not a lawyer, was the "ghostwriting" of eight pleadings for a pro se litigant in a civil lawsuit. Section 402 provides that any person who willfully disobeys a "rule . . . of any district court" shall be prosecuted for contempt if the contumacious act also constitutes "a criminal offense . . . under the laws of any [s]tate." 18 U.S.C. § 402. The district court premised Kimsey's § 402 conviction on its finding that Kimsey violated (1) Local Rules IA 10-1 and 10-2 of the U.S. District Court of Nevada, which govern the admission of attorneys seeking to practice law in the District; and (2) Nevada Revised Statute § 7.285, which prohibits persons from "practic[ing] law" if they are not members of the Nevada State Bar or have not gained admission to practice pro hac vice.

Kimsey now appeals his conviction on four grounds, contending that: (1) he was denied his statutory right to a jury trial; (2) he could not be prosecuted for criminal contempt under 18 U.S.C. § 402 on the basis that he did not comply with Local Rules 10-1 and 10-2; (3) § 7.285 is unconstitution-ally vague as applied to him; and (4) he did not violate § 7.285. We reverse Kimsey's conviction based on the first two points and so do not reach the latter two.

I. Background

A. "Ghostwriting"

In 2008, Frederick Rizzolo ("Rizzolo") became embroiled in a contentious, scorched-earth lawsuit, in which eighteen lawyers bombarded each other and the district court with over 500 pleadings. Plaintiffs Kirk and Amy Henry ("the Henrys") initiated the suit after Kirk's fateful visit to Rizzolo's Crazy Horse Too "gentleman's club" in Las Vegas, where Kirk was attacked so ferociously that he became a quadriplegic. The Henrys sued Rizzolo and others for damages, and sought attachment of assets that Rizzolo and his wife had allegedly concealed through a collusive divorce and through various cash transactions with third parties, involving millions of dollars.

On January 22, 2009, Rizzolo's attorneys withdrew from representing him. From then until October 6, 2009, Rizzolo proceeded without an attorney. During that period, Rizzolo initially filed documents that bore the stamp of a pro se litigant. For example, he submitted handwritten responses to interrogatories, producing such answers as, "I don't believe I am an heir to any other persons [sic] will. But not sure."

In July and August 2009, however, while still purportedly proceeding without a lawyer, Rizzolo filed eight documents that seemed to reflect somewhat more familiarity with the legal system than had his initial pro se efforts. Those documents, styled as filed by "Frederick J. Rizzolo, Pro Se," sought, among other things, stays of discovery, dismissal, summary judgment, and disqualification of the Henrys' attorney. A number of the filings raised legal arguments and cited precedent.

The Henrys' lawyers received the first of these documents, a motion to dismiss, by fax on July 9, 2009. Defending prop- erty transfers arising from Rizzolo's Nevada divorce, the motion advanced a series of contentions ranging from the supposed impact of Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), to the applicability of the domestic relations exception to federal diversity jurisdiction. The motion asserted, for example:

Begay v. Kerr-McGee Corp., 682 F.2d 1311 (9th Cir. 1982), citing Erie Railroad Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188 (1938) (the "Erie doctrine") brings forth a central issue in this case. Should this Court decline to dismiss for lack of personal and subject matter jurisdiction under the heretofore described theories of lack of complete diversity and the domestic relations exception to diversity, then the Erie doctrine requires that the federal court grant or withhold relief as if decided by the state courts.

Jack DeGree ("DeGree"), the Henrys' attorney, testified that the bottom of the fax they received had a tag line that appeared to identify the sender of the document as "Kimsey." Subsequently, DeGree received the official version of this motion through the district court's CM-ECF filing system. This version included an appendix of exhibits, one of which bore what appeared to be a computer file path containing the name "James Edward Kimsey."

Surprised by the motion and the more than 200 pages of exhibits, DeGree contacted Rizzolo on July 22, 2009 to request an extension of time for responding. DeGree found the ensuing conversation "rather odd," given his prior dealings with Rizzolo: In the past, Rizzolo had always been "very agreeable" in phone conversations; this time, Rizzolo replied that he wanted "to think about" DeGree's request and would return his phone call. About an hour later, DeGree did receive a return call, but not from Rizzolo. Instead, the caller "identified himself as James on behalf of Rick Rizzolo." James refused to agree to any extension unless the plaintiffs agreed to a stay of discovery. Although James provided DeGree with a return phone number at which he could be reached, he would not reveal his last name when asked, either then or in a later phone call DeGree instigated to decline the stay. DeGree also asked James whether he was an attorney, a question that apparently hit a raw nerve. At that point James yelled back, "I'm not answering your questions, Mr. DeGree."

B. "Ghost-busting"

Immediately after the second phone call with James, DeGree contacted Dave Groover, a private investigator. DeGree asked Groover to trace the phone number James had provided, which turned out to be registered to "James E. Kimsey." Given this information, as well as the faxed motion bearing the name "Kimsey" and the exhibit with the file path containing "James E. Kimsey," DeGree and Groover ascertained that Kimsey was likely the "ghostwriter" of the documents filed by Rizzolo.

DeGree proceeded to file with the district court on the Henrys' behalf a Motion to Reveal Pro Se Litigant Rick Rizzolo's Ghost Writer. He attached a declaration from Groover indicating that Kimsey was the probable author of Rizzolo's pleadings. DeGree also attached records showing that Kimsey had been convicted for unauthorized practice of law in Nevada in 1987.*fn2 The motion requested that Rizzolo be required to reveal ...


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