Martin Cain's Amicus Curiae Brief in Support of Neither Party - Cox v. Obsidian

In theUnited States Court of Appeals

for the Ninth Circuit

Nos. 12-35238, 12-35319

OBSIDIAN FINANCE GROUP LLC, ET AL.,

Plaintiffs-Appellees and Cross-Appellants,

v.

CRYSTAL COX,

Defendant-Appellant and Cross-Appellee.

FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF OREGON

Case No. 3:11-CV-00057-HZHonorable Marco A. Hernandez

BRIEF OF AMICUS CURIAE MARTIN CAININ SUPPORT OF NEITHER PARTY

Allan B. Gelbard, Esq.Law Offices of Allan B. Gelbard15760 Ventura Blvd., Suite 801Encino, CA 91436(818)[email protected] for Amicus Curiae, Martin Cain

Case: 12-35238 02/26/2014 ID: 8994409 DktEntry: 55-1 Page: 1 of 16 (1 of 39)

TABLE OF CONTENTS

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

I STATEMENT OF INTEREST .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II INTRODUCTION AND SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . 2

III ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A The Montana Board of Realty Regulation Found Cox Engaged . . . . . 5In Extortionate Behavior.

B The MBRRs Final Decision is Judicially Noticeable. . . . . . . . . . . . . . . . 8

IV CONCLUSION .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 DECLARATION OF ALLAN B. GELBARD, ESQ. .. . . . . . . . . . . . . . . . . . . . . . . . . . 11

Certificate of Compliance .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

EXHIBIT A - Findings if Fact, Conclusions of Law and Final Order . . . . . . . . . . . 14

EXHIBIT B - Notice of Proposed Board Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

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TABLE OF AUTHORITIES

Cases

Mack v. S. Bay Beer Distrib. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9(9th Cir. 1986) 798 F.2d 1279

Mir v. Little Co. of Mary Hosp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9(9th Cir. 1988) 844 F.2d 646

Statutes

Federal Rules of Evidence 201(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Federal Rules of Evidence 201(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

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ISTATEMENT OF INTERESTS

Amicus Curiae Martin Cain (Amicus) hereby moves for leave to file this brief

because counsel for Appellant Crystal Cox refused to consent to its filing. David

Aman, counsel for Appellees Obsidian Finance Group LLC and Kevin Padrick has

consented to its filing. 1

No partys counsel authored any portion of this brief, and no party has

contributed money intended to fund the preparation or submission of this brief. No

person other than Amicus contributed money intended to fund the preparation or

submission of this brief.

Amicus is the president of Dylan Energy, Inc., and a victim of an extortion plot

by Appellant Crystal Cox (Cox). In apparent retaliation for Amicus decision not

to hire her as a real estate broker, Cox purchased the domain name

and used it to engage in defamatory and extortionate conduct

identical to her actions against Appellees in this case. Worse yet, Cox egregiously

used information that Amicus had provided to her, in confidence, in violation of her

Amicus acknowledges that this brief may be untimely pursuant to 9 Cir Rule 29-1 th2(e)(1). Amicus requests the Court permit the untimely filing as the Final Orderfrom the Montana Board of Realty Regulation, the central holdings of which beingthe principal reason for the filing of this brief, was not issued until February 8,2014. Therefore, compliance with Rule 29-2(e)(1) was not possible.

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duty of confidentiality as a licensed real estate broker. Cox then demanded

payment of $550,000 for the domain which she was using to

defame Amicus.

It is important to Amicus that Coxs extortionate conduct be adequately

described in the Courts opinion. Should the Court decide that Coxs argument has

merit, Amicus submits that the Court should cite to the judicially noticeable public

records provided herein, rather than the New York Times, as a source for

describing Coxs conduct. If Coxs petition for rehearing is granted, the Ninth

Circuit should cite to the final decision of the Montana Board of Realty Regulation

(MBRR) regarding Coxs extortion of Amicus to its opinion.

II

INTRODUCTION AND SUMMARY OF ARGUMENT

Amicus submits this proposed brief in light of the procedural events which have

taking place subsequent to the Courts entry of its Opinion on January 17, 2014.

Amicus has reviewed both Coxs motion for rehearing, filed by Professor Volokh,

Mr. Randazzas motion to appear as amicus curiae, Coxs opposition to the motion

and Mr. Randazzas reply. Having reviewed these documents, Amicus is compelled

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to provide this Court with judicially noticeable evidence as to Coxs extortionate

conduct, that of which he was the actual victim.

Cox seeks to have the embarrassing factual context stricken from the Ninth

Circuits opinion. Coxs opposition to Mr. Randazzas brief infers that his input is

not helpful and/or important enough to warrant amicus intervention. Yet Cox

submitted her motion - and her Opposition to Mr. Randazzas brief - at least in part

to remove certain crucial underlying context from the Ninth Circuits opinion; that

Ms. Cox has a history of behavior that can only be described as extortionate.

Amicus believes that this statement is truthful, important to the decision, and

should be more thoroughly supported. Further, Amicus contends its inclusion is

imperative to the First Amendment implications of the Courts otherwise correct

opinion.

In attempting to excise the Courts reference to her underlying extortionate

conduct from the opinion (Petition for Rehearing), Cox apparently provoked Mr.

Randazza to provide the Court with more definitive evidence as to her conduct,

directed at himself and at others. In her opposition, Cox asserts that the MBRR

findings presented by Mr. Randazza - as they were at the time - were merely

proposed and thus should be disregarded. (Cox Opp. to Mot. for Leave to File

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Amicus Brief) Amicus hereby seeks to present this Court with the MBRRs final

Findings of Fact, Conclusions of Law, and Final Order (Order).2

Amicus here is the actual victim referred to in the MBRRs proposed finding of

facts and conclusions of law (Randazza amicus Brief, Exhibit. B). While it is true

that those were merely proposed findings of facts and conclusions of law,

Amicus is in possession of the final Order (a true and correct copy of which is

attached hereto as Exhibit A ). 3

The MBRRs Order is even harsher than the proposed findings, to which Cox

and her counsel objected. (Exhibit A, pages 1-3) In fact, the MBRR found that the

proposed findings were too generous to Ms. Cox. They adopted all of the factual

findings but imposed an even harsher penalty upon her; revoking her real estate

license for a full six months, and imposing continuing education duties and other

restrictions upon her that virtually ensure that she will never again hold a real

estate license in Montana (and/or possibly anywhere else). (See Exhibit A, at 2)

Irony is a disciplinarian feared only by those who do not know it, but cherished2by those who do. (Sren Kierkegaard, Irony as a Mastered Moment: The Truth ofIrony," pt. 2, The Concept Of Irony (1841, trans. 1966)). The Findings of Fact, Conclusions of Law, and Final Order are at Exhibit A,3Pages 1-3. The Proposed Findings of Fact and Conclusions of Law were referredto in, and attached to, the final order and are included in Exhibit A at pages 5-13.

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Cox argues that the Court should have not have cited to The New York Times,

perhaps the most well known, well respected, and definitive news source in the

United States (if not the world). She is, perhaps, within her rights to so argue.

Having taken issue with the Courts choice of sources, she received an unwelcome

answer from Mr. Randazza, one of her other victims, in the form of a proposed

amicus brief citing four definitive sources to support the Courts description of Ms.

Coxs behavior. Cox then decided to argue the point as to the sufficiency of at least

one of those sources, an issue that Amicus here is in a unique position to bring

before the Court. Having raised the issue, Cox has opened the door to allow the

Ninth Circuit to take into account the judicially noticeable final Order of the

MBRR and include it in the record in this case.

III

ARGUMENT

The Courts current opinion accurately reflects Coxs history of extortionate

conduct. If anything, the current opinion is too soft in that area. However, to the

extent the Court wishes to supplement its citation to The New York Times with

judicially noticeable documents, the MBRRs final Order is the most appropriate

document to cite.

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A The Montana Board of Realty Regulation Found Cox Engaged In

Extortionate Behavior.

Amicus complaint with the MBRR arose from his decision not to do business

with her (Exhibit A at 6-7, Exhibit B at 3-4). Based on Amicus complaint, the

MBRR initiated an action finding:

Cox created a web site named www.martincain.comand, according to the complainant, posted a number ofwhat Mr. Cain considered to be libelous and defamatorycomments, messages, and threats.

In the blog posts, Ms. Cox insinuated that Mr. Cain wasattempting to have her assassinated.

Ms. Cox offered to sell the web site to Mr. Cain. Heindicated that he believed this was an attempt at extortionon the part of [Cox].

(Exhibit A, at 7-8) Cox did not deny Cains allegations. She admitted to

creating the domain name and writing its content. (Exhibit B at

4) Cox responded to the complaint stating that she is an investigative blogger and

that this matter has nothing to do with her real estate broker license. (Exhibit A at

7, Exhibit B at 4) Upon a screening panels review of Amicus allegations and

Coxs response, it found that there was reasonable cause to believe that Ms. Cox

violated one or more Montana statutes or rules. (Exhibit B at 1) The disciplinary

proceedings, evinced in Exhibit A, then proceeded to their conclusion.

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After providing Cox an ability to be heard, the MBRRs adjudication panel

unanimously voted to adopt the proposed findings of fact developed by the MBRR

during its investigation of Cox and Amicus complaint. (Exhibit A at 1-2) Within

the findings of fact they adopted, the MBRR found that Cox published

defamatory statements about Amicus on , based on information

she obtained from Amicus by violating his confidences (Exhibit A at 7, 9-10). The

MBRR further adopted this finding of fact:

O n her F eb ru a ry 1 7 , 2 01 1 b lo g on thewww.martincain.com website, [Cox] pos[ted] MontanaMan Admits to Working With Martin Cain to Set Me Up,Harm me, Kill me. [] Afterwards, the licensee deletedthe February 17, 2011 blog and then sent an e-mail toCain telling him that he could purchase thewww.martincain.com website and domain name for$550,000.

(Exhibit A at 7-8) These final findings dovetail with those in Mr. Randazzas

actions against Cox before the United States District Court for the District of

Nevada and World Intellectual Property Organization (see Randazza amicus Br.).

Nearly identical to the facts of Mr. Randazzas cases, and the facts of the case

before the Court, Cox purchased Amicus name as a domain name and used it to

distribute false and defamatory statements about him (Id). Once Cox had saturated

the site (and all Internet search results for Amicus name) with her untrue claims,

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she offered to sell it to Amicus and cease the damage she caused for the fee of

$550,000. (Id.)

The MBRRs findings in Amicus case are yet another instance of an

adjudicative body reviewing Coxs conduct, and thereafter holding that she

engaged in the extortionate practice of seeking payment for retraction of her own

false and harmful statements.4

B The MBRRs Final Decision is Judicially Noticeable.

As written, the Courts January 17, 2014 Opinion is correct. Though the Court

cited an article by The New York Times to support the position that Cox has a

history of seeking payments in exchange for retraction of her defamatory

statements, the facts underlying the Courts observation are never-the-less

accurate. However, should the Court grant Coxs petition for rehearing, the

MBRRs final decision should be reflected in the Courts updated opinion. As Cox

objects to the Court using The New York Times as a basis for finding she seeks

As a penalty for her improper conduct, the MBRR punished Cox by 1)4suspending her real estate license for 6 months; 2) placing Coxs license onprobation for 2 years; 3) requiring Cox to complete 8 hours of approved ethicseducation before returning to practice; 4) fining Cox $1,000 before returning topractice; 5) requiring Cox to practice under the supervision of a licensed real estatebroker, approved by the MBRR adjudication panel; 6) prohibiting Cox fromsupervising other licensed brokers during her probation; and 7) barring Cox fromapplying for any other real estate license. (Exhibit A at 2)

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payments for retraction, the Court should use the MBRRs attached decision to

support its findings. (Exhibit A)

Federal Rules of Evidence 201(b) and (c) allow the Court to take notice of the

MBRRs final decision. Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th

Cir. 1988), citing Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir.

1986) (taking judicial notice of records in state administrative proceeding).

Counter to Coxs brief opposing Mr. Randazzas efforts to inform the Court of

Coxs extortionate activities (Coxs Opp. to Mot. for Leave to File Amicus Brief),

Amicus does not ask for these findings to be binding on the Court, or to have

preclusive effect. Amicus simply wishes to provide the Court with admissible

evidence that they exist, and that its assertion that Cox has a history of extortionate

activity is well-founded. In addition to the instances Mr. Randazza referenced in

his brief (Randazza Amicus Brief), Amicus seeks to bring to this Courts attention

the MBRRs final decision regarding Cox (which did not yet exist at the time Mr.

Randazzas filed his brief) which further confirms her history of extortionate

conduct.

///

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IV

CONCLUSION

Coxs history of seeking exorbitant payments in return for her retraction of her

own intentionally harmful and defamatory postings constitutes extortion.

The MBRRs final decision completely justifies this Courts decision to state

Cox has a history of extortionate conduct.

If the Courts opinion is revisited, the Court should specifically include the

MBRRs final decision, and the findings of other bodies identified by other amici,

in discussing Coxs history of unlawful conduct.

Dated: February 25, 2014 Respectfully submitted:

s/Allan B. Gelbard, Esq.Allan B. Gelbard, Esq.Law Offices of Allan B. Gelbard15760 Ventura Blvd., Suite 801Encino, CA 91436(818)[email protected] for Amicus Curiae, Martin Cain

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DECLARATION OF ALLAN B. GELBARD, ESQ.

I, Allan B. Gelbard, Esq.,having personal knowledge of the matters set forth

herein, having obtained 18 years of age, and of sound mind and body, state as

follows:

1 I am an attorney, admitted to practice before this Court. I am counsel for

Martin Cain in this matter, and prepared the motion for leave to file an amicus

curiae brief, as well as the proposed amicus curiae brief, that this declaration

accompanies.

2 David Aman, counsel for Appellees Obsidian Finance Group LLC and

Kevin Padrick, confirmed by e-mail on February 25, 2014 to the filing of my

proposed amicus curiae brief.

3 On February 25, 2014, I contacted Professor Eugene Volokh, counsel for

Appellant Crystal Cox, by telephone to request his consent to my filing of my

amicus curiae brief.

4 On behalf of Appellant Crystal Cox, Mr. Volokh contacted me by e-mail

on February 24, 2014, refusing to consent to me filing this amicus curiae brief.

5 Attached hereto as Exhibit A is a true and correct copy of the Findings of

Fact, Conclusions of Law, and Final Order issued by the Montana Board of Realty

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Regulation on February 14, 2014 (at pages 1-4) including the Proposed Findings of

Fact and Conclusions of Law, issued on July 5, 2013 (at pages 5-13).

6 Attached hereto as Exhibit B is a true and correct copy of the Notice of

Proposed Board Action issued by the Montana Board of Realty Regulation on

October 12, 2012.

I declare under penalty of perjury that the foregoing is true and correct to the

best of my knowledge.

Executed on February 26, 2014 in Encino, California.

s/Allan B. Gelbard, Esq. Allan B. Gelbard, Esq.

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CERTIFICATE OF COMPLIANCEPURSUANT TO CIRCUIT RULE 32-1

I hereby certify that pursuant to Federal Rule of Appellate Procedure 29(d) and

32(a)(7)(B) and (C), and Ninth Circuit Rule 31-1, the following brief is

proportionately spaced, has a typeface of 14-point Times New Roman font,

including footnotes, and contains approximately 2721 words. I rely on the word

count of Word Perfect, the computer program used to prepare this brief.

Dated: February 25, 2014 Respectfully submitted:

s/Allan B. Gelbard, Esq. Allan B. Gelbard, Esq.Law Offices of Allan B. Gelbard15760 Ventura Blvd., Suite 801Encino, CA 91436(818)[email protected] for Amicus Curiae, Martin Cain

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12-3523855 Main Document - 02/26/2014, p.155 Exhibit 1 - 02/26/2014, p.1755 Exhibit 2 - 02/26/2014, p.30

Martin Cain's Amicus Curiae Brief in Support of Neither Party - Cox v. Obsidian

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Transcript of Martin Cain's Amicus Curiae Brief in Support of Neither Party - Cox v. Obsidian