Asia Economic Institute et al v. Xcentric Ventures LLC et al

Filing 119

REQUEST FOR JUDICIAL NOTICE re MOTION for Reconsideration re Order,, 94 118 filed by Plaintiffs Asia Economic Institute, Iliana Llaneras, Raymond Mobrez. (Attachments: # 1 Exhibit A to Request for Judicial Notice - Jury Instructions in U.S. v. Sypher for extortion in violation of 18 U.S.C. 875(d), # 2 Exhibit B to Request for Judicial Notice - Order of Conviction in U.S. v. Sypher for extortion in violation of 18 U.S.C. 875(d))(Blackert, Daniel)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 DANIEL F. BLACKERT, ESQ., CSB No. 255021 LISA J. BORODKIN, ESQ. CSB No. 196412 Asia Economic Institute 11766 Wilshire Blvd., Suite 260 Los Angeles, CA 90025 Telephone (310) 806-3000 Facsimile (310) 826-4448 Daniel@asiaecon.org Blackertesq@yahoo.com lisa@asiaecon.org lisa_borodkin@post.harvard.edu Attorneys for Plaintiffs, Asia Economic Institute LLC, Raymond Mobrez, and Iliana Llaneras UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ) ) ) ) ) ) Plaintiffs, ) ) vs. ) ) XCENTRIC VENTURES, LLC, an ) Arizona LLC, d/b/a as BADBUSINESS ) BUREAU and/or ) BADBUSINESSBUREAU.COM ) and/or RIP OFF REPORT and/or ) RIPOFFREPORT.COM; BAD ) BUSINESS BUREAU, LLC, organized ) ) and existing under the laws of St. ) Kitts/Nevis, West Indies; EDWARD MAGEDSON an individual, and DOES ) ) 1 through 100, inclusive, ASIA ECONOMIC INSTITUTE, a California LLC; RAYMOND MOBREZ an individual; and ILIANA LLANERAS, an individual, Defendants. Case No.: 2:10-cv-01360-SVW-PJW The Honorable Stephen V. Wilson REQUEST OF PLAINTIFFS TO TAKE JUDICIAL NOTICE OF JURY INSTRUCTIONS AND CONVICTION IN UNITED STATES V. SYPHER, 09-CR-85 (W.D. KY. AUG 4-6, 2010) IN SUPPORT OF PLAINTIFFS' MOTION FOR RECONSIDERATION [FED. R. EVID. 201] Date: Time: Ctrm: September 20, 2010 1:30 p.m. 6 24 25 26 27 28 Judicial Notice - 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pursuant to Federal Rule of Evidence 201 and the inherent authority of this Court, Plaintiffs Asia Economic Institute, LLC, Raymond Mobrez, and Iliana Llaneras ("Plainitffs") respectfully request that the Court take judicial notice of the Jury Instructions [DN-109] and Order of Conviction [DN-115] entered in United States v. Karen Sypher, case 1:09-cr-85 in the Western District of Kentucky on August 4, 2010 and August 6, 2010 respectively. A true and correct copy of these documents are attached hereto as Exhibits "A" and "B" respectively. MEMORANDUM OF POINTS AND AUTHORITIES The Federal Rules of Evidence mandate that judicial notice be taken where it is "requested by a party and supplied with the necessary information," Fed. R. Evid. 201(d), and authorizes judicial notice "at any stage of the proceeding." Fed. R. Evid. 201(f). Moreover, "a judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). Here, the requested fact is "not subject to reasonable dispute" in that it is "capable of accurate and ready determination by" referring to the Seventh Circuit docket, a source "whose accuracy cannot reasonably be questioned." FRE 201(b). Thus, the documents are readily verifiable and the proper subject to judicial notice. Moreover, courts may take judicial notice of court filings and other matters of public record. Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n. 6 (9th Cir. 2006); see also Allen v. City of Los Angeles, 92 F.3d 842, 850 (9th Cir. 1992) (federal courts may take judicial notice of proceedings in other courts, both within and without federal judicial system, if those proceedings have a direct relation to matters at issue) (overruled on other grounds); Bryant v. Judicial Notice - 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Carleson, 444 F.2d 353, 357 (9th Cir. 1971) (court took judicial notice of proceedings and filings in other courts). These documents support Plaintiffs' allegations of extortion pursuant to 18 U.S.C. 875(d), which "makes it a federal crime for anyone to knowingly and willfully transmit in interstate commerce a threat to injure another person's reputation or a threat to accuse another person of a crime," as predicate acts of supporting Plaintiffs' claims for violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. 1962(c), (d). Plaintiffs respectfully request that this Court take judicial notice of the fact that the jury instructions used in United States v. Sypher, filed as DN-109, instructed the jury on the elements of a violation of 18 U.S.C. 875(d) as follows: "Count 1 First: That on or about February 26, 2009 and February 28, 2009, the defendant, Karen Cunagin Sypher, willfully caused another person to transmit a communication in interstate commerce containing a true threat to injure the reputation of Richard Pitino, or to accuse Richard A. Pitino of a crime; and Second: That the defendant did so with the intent to extort money or other thing of value to the defendant. Count 2 First: That on or about March 6, 2009, , the defendant, Karen Cunagin Sypher, willfully caused another person to transmit a communication in interstate commerce containing a true threat to injure the reputation of Richard Pitino, or to accuse Richard A. Pitino of a crime; and Second: That the defendant did so with the intent to extort money or other thing of value to the defendant. ... To `transmit a communication in interstate commerce' means to send the communication from a place in one state to a place in another state. It Judicial Notice - 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 does not matter whether the defendant intended or even knew that the communication would cross a state line. A `true threat' is a serious threat not idle talk, a careless remark, or something said jokingly that is made under circumstances that would lead a reasonable person to believe that the defendant intended to injure the reputation of another person, or to accuse another person of a crime. To act with `intent to extort' means to act with the purpose of obtaining money or something of value from someone by means of the wrongful use of a threat to injure someone's reputation or to accuse someone of a crime. When a threat of harm to a person's reputation, or to accuse a person of a crime involves a demand for money or property under circumstances where the threatener does not have, and cannot reasonably believe he or she has a claim of right to that money or property, the threat is inherently wrongful. The essence of the crime charged in Counts 1 [and] 2 is intentionally sending a communication in interstate commerce to extort something of value. The United States does not have to prove that the defendants intended to carry out the threat or succeeded in obtaining the money or any other thing of value." See Exhibit A. Plaintiffs also respectfully request that this Court take judicial notice of the fact that on August 6, 2010, defendant Karen Sypher was convicted on Counts 1 and 2, among others, in United States v. Sypher. See Exhibit B. As explained in greater detail in Plaintiffs' Motion for reconsideration, 18 U.S.C. 875(d) is a general intent crime, and that the threats can be made regarding the reputation of a third party and still be actionable. See United States v. Von Der Linden, 561 F.2d 1340, 1341 (9th Cir. 1977). Truth or falsity of the information threatened to be exposed is immaterial. See id. The extortion can consist of exposing information generated by third parties; it is not necessary that the defendant generated the content threatened with exposure itself. See United States v. Adjani, 452 F.3d 1140, 1143 (9th Cir. Cal. 2006). In Adjani, the defendants were accused of a plot to extort money by threatening to sell a database of sensitive financial information unless they were Judicial Notice - 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 paid $3 million; there was no allegation that the defendants had personally input the data into the database. See id. (holding it was error for Dsitrict Court to exclude evidence of email communications retrieved during search warrant pursuant to charge under 18 U.S.C. 875(d)). Therefore, the recent jury instruction in United State v. Sypher for violations of 18 U.S.C. 875(d) support Plaintiffs' causes of action for civil RICO and RICO conspiracy, 18 U.S.C. 1962(c) and (d) as it clarifies and provides an alternative ground for the elements of predicate acts of extortion supporting Plaintiffs' RICO claims. Pursuant to these rules, Plaintiffs request that this Court take judicial notice of the documents attached hereto as Exhibit A and Exhibit B filed with the United States District Court for the Western District of Kentucky on August 4 and 6, 2010 in United States v. Sypher, (W.D. Ky. Case No. 1:09-cr-85), respectively, and the contents thereof. CONCLUSION For all the reasons set forth above, the Plaintiffs respectfully request that the Court consider the documents filed herewith in connection with Plaintiff's Motion for Reconsideration. Dated: August 16, 2010 Respectfully Submitted, _/s/ Daniel F. Blackert______ Daniel F. Blackert, Esq. Lisa J. Borodkin, Esq. Attorneys for Plaintiffs Judicial Notice - 5

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