MORE EVIDENCE OF PREJUDICE AGAINST HISPANICS. This is one of the pages of a deposition given by Supervisor Mr. P. Humburg from "Envirodyne Engineers" in Saint Louis, Missouri, stating under oath that in his past he did have a traumatic experience with some individuals of Mexican origin, which apparently had turned into a dislike for people of Hispanic heritage at some point in his life.
Saturday, November 27, 2004
- DO THESE TWO (2) LETTERS SET THE GROUND FOR MR. BU...
- A call to all reasonable people in the country.
- "Censorship and cover-ups are the best evidence of wrong doing by government officials...The fact is that history has always proven such."
- Where is Amnesty International? Where is Human Rights Watch or The U.N Commission on Human Rights? This case sets forth the worst violation of human rights ever perpetrated within the United States, and most likely anywhere else in the world; yet the representatives of these agencies are nowhere to be found. For twenty four (24) years Jesus Cabal’s legal and constitutional rights have been savagely suppressed by United States Government officials with the complicity of the International news media who literally has stood by while his good name has been slandered, defamed in what is clearly a conspiracy to dehumanize him. Is this a case of hypocrisy by the news media and the so called human rights organizations, or are these agencies nothing else but puppets of high ranking employees of the United States Government?
- I, Jesús Alberto Cabal, the “administrator” of this "blog" hereby grants the right to translate the contents of this site "A THREAT TO WORLD PEACE" into any foreign languages to anyone, as long as the person is willing and competent to do so. He or she must also be capable of undertaking the task at his/her own expense. By foreign language I do mean any internationally known idiom other than English. The authority to translate this web page is conditional to the following provisions: A. The basic meaning of each “Sentence”, “Post”, or “Exhibit” must not be changed in any form as to alter the true meaning of such. The translation must be made just for “General Information”, “Educational” and/or “Revisionary History” purposes. B. The translated contents must be posted in the internet as a “blog” or any other internet related “Web Page” in the language at issue. The administrator, Jesus Alberto Cabal, must be notified via "e-mail" of such translation and of your intent to “post” the translated version in the world wide web. C. Jesus Alberto Cabal does not waiver the full rights, copyrights, trade and/or commercial rights to any of the documents at issue, including exhibits or any other intelectual contents of this web page and translations. Such can not be sold for profit to any magazines, newspapers, book authors, film makers, or television stations without Jesus Alberto Cabal´s express written consent. D. The “translator” must accept responsibility and/or liability for documents “mistranslated” due to poor knowledge of either, English or the foreign language. The “translator” must also accept liability for deliberatedly made “bad translations” if it is proven that there was an attempt to deceive in the translated version.
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- From anyone, anywhere in the world who may sympathize with this cause in search of justice. It´s very well known that litigation costs plus website publishing are in fact expensive matters. If you wish to make a donation please e-mail me for further details at: "firstname.lastname@example.org" -or- Direct Deposits are accepted at BANCOLOMBIA,Cali, Colombia. Savings Account # 077-150222-35 (Jesus Alberto Cabal); Routing Number: COLOCOBM. -Thank you so much.
- On February the 4th of 2002, the Plaintiff-Appellant Jesus Alberto Cabal, did file in the United States District Court for the Western District of Texas in the city of San Antonio a 59-page complaint seeking declaratory and injunctive relief against several high ranking employees6 of the United States Government, and from the agencies which they lead and/or represent; namely, the Department of Justice (D.O.J.) and the Federal Bureau of Investigations (F.B.I.). (Appellant’s Exhibit-5 of the Appendix). The complaint which consisted of four (4) counts does describe in excruciating detail the terror and abuse of power to which Mr. Cabal has been subjected to since the year of 1982 at the hands of United States officials just for the simple fact that he is an alien of Colombian national origin, and therefore a Hispanic minority according with the Civil Rights Act of 1964. 6 The law suit against present and former U.S. Attorney Generals, and F.B.I. directors seeks relief on behalf of Mr. Cabal, in both, their official and private capacities. A.) The First Count of such complaint (Count-I), (Please, do refer to pages 1 through 9 of Appellant’s Exhibit-5 of the Appendix) is a petition under the F.O.I.P.A and the statute 5 U.S.C. 552(a)(4)(b) which requests from the District Court to compel all the defendants including, but not limited to the D.O.J.. and the F.B.I. to produce, and thereafter to allow duplication of all records in the possession of these defendants dealing with Mr. Cabal and gathered since the year of 1982 throughout the present. In particular, Mr. Cabal has stated in his pleadings that he is in immediate need of all audio and videotapes obtained from surveillance carried out at his place of residence in Seguin, Texas, during Saturday April the 28th of the year 2001 when the last overt act of the -11- conspiracy at issue did take place. (Please, refer to pages 6-9 of Appellant’s Exhibit-5 of the Appendix). It is essential that the court enter its order compelling government agencies, and officials to comply for the simple fact that the matter has been classified as “Top Secret” under the false pretense of protecting the national security of the United States. This is the reason why for the past twenty (20) years Mr. Cabal has met a wall of denials from all federal agencies that he has been in contact with since the nature of the classification given to this matter by Executive Orders does allow these agencies to deny even the existence of “any Executive Order tampering with Mr. Cabal’s rights”. The tremendous censorship imposed on the news media in this matter, plus the “gutsy acts” of a few journalists and private citizens who either directly or by innuendo have allowed Mr. Cabal to become aware of the existence of these Executive Orders aimed at suppressing his rights within the United States is the only way that he has been able to determine that such actions have in fact been taken at the presidential level against him. B.) The second count of Mr. Cabal’s complaint (Count-II) sets forth a conspiracy to obstruct justice under the federal statutes: 42 U.S.C. 1985 (a)(2)(3) and 42 U.S.C. 1981. This court must be made aware that on December the 10th, 1998, Mr. Cabal did file an Administrative Claim simultaneously with the Justice Department offices in San Antonio, Texas, and Washington, D.C., in compliance with the federal statutes 28 U.S.C. 2672, and 28 U.S.C. 2675; these statutes do require that prior to initiating a law suit against federal agencies or officials for monetary damages, such parties must be given a chance to examine the claims against them, and thereafter to respond or settle the matter out of court if they wish to do so. (Appellant’s Exhibit-3 of the Appendix). Within Count II of his complaint Mr. Cabal does relate to the court facts of law which overwhelmingly demonstrate that the actions taken by the Eastern District Court of Missouri in the city of Saint Louis could only be -12- explained as being taken in furtherance of a conspiracy. For instance: on page 11, paragraph 10 of such complaint Mr. Cabal describes how the district court of Missouri in a case of employment discrimination filed by Mr. Cabal against a former employer known as “Envirodyne Engineers” did appoint an all white jury, in spite of his objections, for the trial of a law suit in which all the allegations of harassment and abuse made by Mr. Cabal, a minority himself, were directed against his white co-workers. (Appellant’s Exhibit-8 of the Appendix). On page 13, paragraph 13A, of the complaint Mr. Cabal describes how his own supervisor at “Envirodyne”, an individual with the name of Paul Myers stated under oath during his deposition that the second person in the line of command in the laboratory where Mr. Cabal used to work at the time, a Mr. Paul Humburg, had stated to him that (quote): “He (Mr. Humburg)did not like people of Hispanic origin because in the past he had some bad experiences with Mexicans”. (Appellant’s Exhibits-9,10 of the Appendix).This individual who had expressed such prejudiced against Hispanics was also part of the management team at “Envirodyne”, and was in a position to prejudice his co-workers against Mr. Cabal, as was indeed the case in those days. In fact, further proof of prejudice against Hispanics at “Envirodyne Engineers”was discovered in a form known as EE0-1 and filed by such corporation with the E.E.O.C. in the early eighties in which its work force description by racial composition does show that among the dozens of workers at Envirodyne Engineers there were no employees of Hispanic heritage (male or female). (Appellant’s Exhibit-11 of the Appendix). Mr. Cabal who was a graduated chemist and who had been hired as a temporary worker by “Envirodyne” had also applied for permanent positions with this company as they became available, either as Chemist or as Q.A. Technician. (Appellant’s Exhibits-12, and 13 of the Appendix). He was denied either one in spite of the fact that his own supervisor had stated during his deposition, and later on during the trial -13- of the law suit that Mr. Cabal had done a good job while employed by “Envirodyne” (Appellant’s Exhibits-14,15 of the Appendix). Furthermore, and to show that Mr. Cabal was not only a good and responsible employee at “Envirodyne” who was denied full time permanent employment in an act of discrimination, and who was railroaded in the district court pursuant to a conspiracy by U.S. officials altogether with management at “Envirodyne”; an attorney for this corporation in a letter sent to Mr. Cabal’s attorney on August 18, 1982 clearly implies that Mr. Cabal had been a good worker whom “Envirodyne” would be willing to re-hire at a latter time should the economic situation in the St. Louis area were to show some improvement. (quote). (Appellant’s Exhibit-16 of the Appendix). Notwithstanding all of this massive evidence of employment discrimination, the “all white jury” chosen in this case returned a verdict against Mr. Cabal in all three counts, under a stiff censorship of the law suit in the Saint Louis metropolitan area during the year of 1986. Later on, when Mr. Cabal confronted a newsman in the city of St. Louis with the name of Tim Bryant about the stiff censorship surrounding his law suit and the fact that he had clearly been “railroaded” during the trial of his discrimination law suit, his reply was that he couldn’t help Mr. Cabal because (quote): “All seems to indicate that very powerful people in the federal government do not want this matter to become of public knowledge.” (Page 14 paragraph E of Appellant’s Exhibit-5 of the Appendix). The truth of the matter is that the evidence presented by the Plaintiff at the trial of the law suit Jesus Alberto Cabal vs. Envirodyne Engineers, Inc., during the year of 1986 was in simple words overwhelming to show that he had been the victim of employment discrimination and slander by his co-workers at “Envirodyne”. The court’s decision at the time not to allow the jury to rule on the -14- defamation count, and the appointment thereafter of an “all white jury” to decide a case of employment discrimination in which all of Mr. Cabal’s complaints were directed against his white co-workers was the judge’s way to let Mr. Cabal know that the court did not intend to play by the rules in his case. This fact is undisputable if one takes into account that at the time the population of the city of Saint Louis itself was over 80% African American; thus, the appointment of an all white jury under these conditions, plus the fact that the jury did rule contrary to the facts of the case can only be explained as an act in furtherance of a conspiracy. This incident alone is sufficient as to contradict U.S. Attorney’s Craig Gargotta’s statements set forth within his Motion to Dismiss on behalf of the U.S. government defendants, and filed with the District Court of Texas on June of 2002. Within such Motion Mr. Gargotta does argue that Mr. Cabal had no one to blame, but himself for the dismissal of his law suits because (quote):“ The law suits were factually or substantively defective” (page 11, paragraph 3 of the government’s Motion to Dismiss). In this regard the Fifth Circuit Court of Appeals must be made aware that the lawyers who prepared and tried the law suit “Cabal vs. Envirodyne”on behalf of Mr. Cabal, belonged to the law firm of Newman, Goldfarb, Freyman & Stevens which was reputed at the time to be one of the best law firms in the Saint Louis metro area; particularly, in matters dealing with civil rights litigation. In fact, the original complaint, plus the pleadings which they filed throughout the litigation on behalf of Mr. Cabal were legally flawless, factual, and well reasoned documents as was also their presentation during the trial of the case in which they refuted one by one each of Envirodyne’s arguments that there was not an attempt by this company to discriminate against Mr.Cabal. (7) As was told to Mr. Cabal by other civil rights attorneys in the St. Louis metro area who examined several of the pleadings just before he filed his appeal on that particular case. -15- (Appellant’s Exhibit-14 of the Appendix) . It is fair to say that the only way that the lawyers acting on his behalf could have lost that particular case was through tampering with the proceedings; through cheating sponsored by U.S. officials as was definitely the case at the time. All of the evidence and exhibits that Mr. Cabal has set forth in the previous paragraphs did entitled him to relief as a matter of law, and could only have been suppressed or nullified via an Executive Order aimed at tampering with Mr. Cabal’s legal rights to prevail on the merits of his claims. Not other logical explanation suffice or can be given to the actions taken by the court against him during the trial of the case Cabal vs. Envirodyne. In the case of the law suit Cabal vs. Private Label Cosmetics, Inc., which was filed in the state of New Jersey, similar violations took place. For instance: A few days after his hiring, an employee from “Private Labels”with the name of Barbara Zakaev, did contact the office of Envirodyne Engineers, Inc. in Saint Louis, Missouri to inquire about Mr. Cabal’s previous employment. Ms. Zakaev was told by Envirodyne’s officials that Plaintiff had in fact filed charges with the E.E.E.O.C against “Envirodyne” for employment discrimination. Other telephone calls did follow up among higher level officials of these two companies, and as a direct result of “Envirodyne” releasing the above referenced information to “P. L. C.” Plaintiff was subjected to tremendous harassment, to ostracism, and degradation at this employment. His co-workers openly used to tell him that they knew that he (Mr. Cabal) had filed charges of discrimination against “Envirodyne”, and that they wanted him to leave. Plaintiff was given “unsigned paychecks” on at least three occasions obviously in an attempt to intimidate him. (Appellant’s Exhibit-17 of the Appendix). Also, on/or about October the 9th , 1982 the owners of “Private Label Cosmetics” did issue a pay raise to all of its employees including those -16- who got hired after Mr. Cabal, except for Mr. Cabal himself. Some of his co-workers and supervisors used to approach him several times a day to laugh at him stating: (Quote) “Poor guy, he is the only one who did not get a pay raise, Ha! Ha! Ha!”. The pay raise eventually was made retroactive to the Plaintiff. (Appellant’s Exhibit-18 of the Appendix) After complaining on several occasions to the company’s vice-president, and president, about the intense harassment which Plaintiff was being subjected to by his co-workers and supervisors alike on November the 19th, 1982, a Mr. Michael Assante invited him to a meeting in an attempt to get Plaintiff to sign a statement purportedly acknowledging that: “ The harassment had stopped after Mr. Cabal had met with the company’s upper management to discuss the matter”. ( See Appellant’s Exhibit-19 of the Appendix) Mr. Cabal refused to sign such since the harassment never stopped, and by then management had prejudiced the work force against him to the point that the situation was basically spinning out of control. On/or about November 22, 1982 a Mr. Geoff Finkenauer on behalf of Private Label Cosmetics and the Plaintiff mutually agreed to sign a letter of dismissal after his supervisors acknowledged that Private Label Cosmetics had allowed the situation to deteriorate to the point that the trust between Plaintiff and most of his co-workers, and supervisors was basically non existent. The mutually signed statement of dismissal basically read that “..Due to the unforseen personnel difficulties and to the underlying tension there created we find it necessary to lay Alberto Cabal off ”. (Appellant’s Exhibit-20 of the Appendix). After Mr. Cabal filed his law suit in the District Court of New Jersey against “Private Label Cosmetics”the harassment and intimidation of Mr. Cabal continued this time at the hands of federal officials. In fact, on January the 20th, 1983, a Magistrate from the U.S. District Court of New Jersey -17- with the name of Serena Perretti wrote a letter to the Plaintiff declining to appoint him legal representation on the grounds that (Quote):” In a claim under Title VII for retaliatory dismissal the fact issues are not difficult and can be presented by a litigant without a lawyer. Therefore, I will exercise my discretion and decline to request counsel to represent you.” (Appellant’s Exhibit-21 of the Appendix). In other letters mailed to Mr. Cabal during the following months she does make other remarks which indicated to him that the Magistrate had been prejudiced against him, and/or told by higher officials of the Executive branch how to rule in the case of Cabal v. Private Labels Cosmetics, Inc. This claim is corroborated by the fact that the Magistrate in spite of asserting in her letter of January the 20th, 1983, that “retaliation facts are easy to present” went on thereafter to deny all of Plaintiff’s motions, including but not limited to his subpoena of documents from his employer in what appears to have been a clear attempt to prevent him from winning on the merits of the claim. To further show the U.S. Court of Appeals for the Fifth Circuit that contrary to the argument of the U.S. Attorney for the Western District of Texas that the “Plaintiff (Mr. Cabal) did not have a valid claim in any of the law suits he has filed since 1982 reason why the suits were dismissed", he also needs to discuss herein some of the evidence presented in the case of Cabal vs. Tetraplastics, Inc. et al, suit which was filed during the year of 1994 also with the Eastern District of Missouri. In fact, the evidence was also quite compelling in Cabal vs. Tetraplastics, et al to show that Mr. Cabal was the victim of employment retaliation, defamation, and a conspiracy by the co-Defendants altogether with state officials in Missouri to violate his civil rights under color of law. Once again, the proceedings were carried out under a stiff censorship since neither one of the Defendants could refute such compelling evidence indicating that a “meeting of the minds” took place among the -18- parties which aim was to injure Mr. Cabal in his trade. The following facts prove by the “preponderance of the evidence”that there was in fact a conspiracy involving employees of “Tetra” and “I T Corporation” with federal and Missouri state officials to deprive Jesus Cabal of his civil rights under the statutes 42 U.S.C 1983, and 42 U.S.C 1985(a)(2) and (3): 1. “Tetraplastics, Inc.” and “I T Corporation” were both located in the same industrial park at Earth City, Missouri, just a few blocks away from each other, at the time Mr. Cabal worked at “Tetra”. (This is an uncontested fact, and very critical evidence to this law suit). 2. Jesus Cabal was terminated from his employment with “Tetraplastics” on July the 2nd, 1994, which is just about a week after he filed a law suit against “I T Corporation” in St. Louis County Circuit Court on June the 22nd, 1994. (These two previously related facts are too much of a coincidence to be disregarded). 3. “I T Corporation” in its response to Plaintiff’s Interrogatory#19 clearly states that: “Contact between employees of these two companies have indeed taken place in the past”, although “IT” claims that it is not of the kind described by Plaintiff. (See Appl. Exhibit-22 of the Appendix.). 4. On Counts I through V of his Second Amended Complaint, Plaintiff sets forth statements made often by employees of “Tetraplastics” with the names of Mr. Tom Williams, Mr. Steve Hoff, and Mr. Craig McDonald, who stated on numerous occasions that Mr. James Hurley himself was a good friend of several officials of I T Corporation who released information to Mr. Hurley dealing with Mr. Cabal’s litigation against “I T”. In fact, one of Mr. Hurley’s relatives, a Dr. Andrew Hurley, is a professor at the University of Missouri (St. Louis), the same campus where the husband of Dr. Margaret Winter from “I T” is also an employee. (Appl. Exhibit-23of the Appendix). -19- 5. Mr. Gene Reim, the director of personnel for “Tetraplastics”, admitting during his deposition that his own sister is an employee of the Missouri Division of Child Welfare in Saint Louis County, (Appl. Exhibit-24 of the Appx.) (page 55 of his deposition); fact which might explain why a state official with the name of Mr. Paul Fox, the legal counsel for the St. Louis County Circuit Court told Mr. Cabal during the year of 1994 (quote): “I know who you are!”. 6. Mr. Paul Fox himself, the county’s legal counsel, within the Affidavit he submitted to the attorneys for the Defendants and referred to in Defendants’ Reply Brief has admitted that (quote): “The copy of the order signed by Judge Campbell and shown to me by Mr. Cabal, in fact seems to have been altered as to show a number seven(7) instead of a number one(1)”. Mr. Fox is relating to the dates of November 1, 1994 and November 7, 1994. 7. The record also shows that the conspiracy at issue includes at least two employees of Plaintiff’s next employer after Tetraplastics, namely: “Stellar Manufacturing Company”. Within his deposition Mr. Bob Page, a “Tetra” employee acknowledged that: “He and his family were friends with an employee of “Stellar” known as Ms. Velma Johnson” (Appl. Exhibit-25 of the Appendix), and go as far as saying that: ”Velma (Johnson) was visiting his house the same morning just before his deposition.” (Appl. Exhibit-25 of the Appendix). Ms. Johnson and Ms. Dwyer from “Stellar Manufacturing” appear to have been the recipients of a defamatory letter issued by Tetraplastics. 8. The director of human resources for “Stellar Manufacturing”, Ms. Dwyer, did let Mr. Cabal know that she was aware that he had been “railroaded” in previous litigation against former employers, and weeks later developed an incentives program at “Stellar” known as the “Stellar Safety Express”(See Appl. Exhibits-27, 28 of the Appendix), which as explained in the documentation attached thereto consisted of a train railroading throughout the Departments or -20- Divisions of this company with all the employees purportedly traveling aboard the train and earning vacation days and/or monetary incentives. 9. In fact, Ms. Dwyer did refuse to sign her own deposition and also refused to accept any of the certified letters mailed to her by Mr. Cabal, perhaps because she is aware that the conspiracy at issue had in fact been exposed. (See Appl.’s. Exhibits-29, 30 of the Appendix). 10. A Mr. James Hurley from “Tetra” did file an affidavit with the district court stating that employees of “Tetra” were concerned about Jesus Cabal’s performance and attendance; yet, the director of personnel for Tetra, a Mr. Gene Reim, has flatly denied in his deposition that he has any knowledge at all that complains were ever made about Jesus Cabal ( See Appl’s. Exhibit-33 of the Appendix). It just makes no sense that in any business, employees will complain all the way to the company’s vice-president about a co-worker who was doing janitorial type of work, without ever bringing the matter to the director of personnel himself as to create a record of the particular incidents. 11. Furthermore , at least two of the machine operators which Mr. Cabal was assigned to work with, did acknowledge in their own depositions that Plaintiff, Jesus Cabal, was in fact a good worker, and a responsible individual who was respectful of his co-workers. (Appellant’s Exhibits-31, and 32 of the Appendix). The irony of Judge Perry’s dismissal of Mr. Cabal’s claims for conspiracy in “Cabal v. Tetraplastics”, et al., lays in the fact that she believed that there is enough evidence for a jury to hear his claims for employment retaliation, which by the way, are directly relate to his allegations of conspiracy. However, she chose to dismiss the conspiracy claims on the grounds that (quoting her):“Such were nothing but a bunch of coincidences”. (Appellant’s Exhibit-34 of the Appendix). -21- Judge Perry undoubtedly created serious doubts about her impartiality not only by dismissing Plaintiff’s counts for “libel” and “conspiracy” when there was very compelling evidence supporting Mr. Cabal’s allegations, but for going as far as imposing upon him the payment to the defendants of Court costs and attorneys’ fees in excess of $30,000 dollars. This is very unfair because: 1st The evidence in this law suit can not be refuted by the defendants, nor explained in any way other than in favor of Mr. Cabal’s claims, and 2ndThe proceedings in the lower court were conducted under a tremendous censorship in which the news media was prohibited, once again, to report to the general public matters dealing with these proceedings. Such fact makes it perhaps criminal in nature to impose such outrageous fines upon a litigant who is being victimized simultaneously by the Defendants and by government imposed censorship which only goal was to cover up the truth. (Appl’s. Exhibit-35). Judge Perry of the District Court of Missouri should have taken into account when considering Defendants’ Motion for Summary Judgment under Rule 56, that the responsibility of the district judge is merely to determine that there are issues to be tried, rather than to try the issues herself via affidavits. Such has always been the contention of the Eighth Circuit Court of Appeals as shown in: U.S. v. Porter,, C. of App. 8th Circuit, 1978, 581 F.2d 698, also in Ozark Milling Co. v. Allied Mills, Inc., C.A.. 8th Circuit, 1973, 480 F.2d 1014. “Summary Judgment remedy is extreme and not to be used as a substitute for trial, and any doubt as to existence of triable issue of material fact must be resolved against movant”. Jacobson v. Maryland Cas. Co., C.A., 8th Circuit, Mo.336 F.2d 72, 1964. Appellant needs to remind the Fifth Circuit Court of Appeals, that his assignment at “Tetraplastics”in the state of Missouri was of a “janitorial nature”, in spite of the fact that he is a -22- graduated chemist who through the years has received excellent letters of recommendation from other employers. That is before and after his employment with “Tetra”. (See Appl’s. Exhibits-36 through 44). Furthermore, the Director of Personnel for Tetraplastics, and at least two of the machine operators which Mr. Cabal was assigned to work with, did acknowledge in their depositions that Plaintiff was in fact a good worker, and a responsible individual who was respectful of his co-workers. (Refer to Appl’s. Exhibits-31 through 33 of the Appendix). The statements made by these employees of “Tetraplastics” in their depositions should have been enough grounds for Judge Perry to allow Mr. Cabal’s claims of defamation and conspiracy to be presented to a jury; particularly, because Mr. Cabal had already presented evidence indicating that copies of the Service Letter published by a Mr. Hurley from “Tetraplastics” had in fact being released to employees of Stellar Chemical Company, which was Mr. Cabal’s subsequent employer8. 8The release of such derogatory service letter by Tetraplastics’ officials to personnel from “Stellar Chemical” was directly responsible for the fact that Mr. Cabal was kept as an hourly employee in spite of the fact that he had been promoted all the way to Plant Chemist, and eventually caused Mr. Cabal to lose his employment with “Stellar Chemical”of Hazelwood, Missouri. The Fifth Circuit Court of Appeals must also be reminded that Defendants “Tetra” and “I T Corp.” did file a Motion to Dismiss under Rule 56 of the F.R.C.P. The provisions of Rule-56 do not allow a District Judge to dismiss any claims when a Defendant seeking Summary Judgment is unable to refute and/or to contradict the evidence set forth by the Plaintiff within his pleadings. ( Mc Pherson v. Rankin, 736 F.2d 175, 178 (5th Circuit, 1984), see also Union Planters Nat. Leasing v. Woods, 687 F.2d. 117 (5th Circuit 1982). In this particular law suit, it can be said that after being confronted -23- with the compelling and unchallenged evidence in Mr. Cabal’s possession, Judge Perry had no alternative but to allow Mr. Cabal’s claims for “defamation of character” and “conspiracy” to proceed to trial before a jury altogether with Mr. Cabal’s claims of employment retaliation. In summary, the fact that judge Perry from the U.S. District Court for the Eastern District of Missouri did not choose to rule on Mr. Cabal’s favor on the three (3) critical counts of his complaint had nothing to do with Plaintiff lacking of evidence to support his allegations, nor with his pleadings being defective as Mr. Gargotta has argued in support of the U.S. defendants’ claims to dismiss. The case against “Tetraplastics, et al”is one in which the judge chose to ignore the evidence, it is as simple as that, and she did choose to ignore the facts of the case not because she was incompetent, nor because Mr. Cabal’s employers offered her a bribe. She did so because she was compelled by means of an Executive Order falsely arguing damage to the national security of the United States should Mr. Cabal had been granted an opportunity to prove his allegations before a jury as set forth in his complaint. The stiff censorship surrounding the law suit plus the fact that she fined Mr. Cabal in the amount of $30,000 when the evidence overwhelmingly supported his claims was the icing on the cake that U.S. Government officials were out to deny him Due Process of Law and the Equal Protection of the Laws through sheer intimidation.
- INTRODUCTION This is an appeal taken from a conviction entered by a jury in the 25th judicial district of Texas sitting in the city of Seguin, Guadalupe County, state of Texas. Defendant was charged under the Texas penal code 22.021(a)(1)(B)(3) with the aggravated sexual assault of a child which is a Class-I felony, and on April 2, 2003 after a secret trial in which the news media was banned from the proceedings in spite of the Defendant´s objections, he was found guilty after a mock trial and in total conflict with the evidence which did show that Mr. Cabal had been framed and/or was the victim of a conspiracy which involved at least officers of the Seguin Police Department and the District Attorney´s office for the 25th judicial district. The Defendant, Jesus Alberto Cabal was sentenced by judge Dwight Peschall on/or about June the 11 of 2003. This is an appeal from the conviction at issue. Mr. Cabal had a court appointed lawyer with the name of Mr. Robert Caine from Austin, Texas, however, his status in regard to Mr. Cabal´s representation has not been fully decided by this Court of Appeals which has ordered him to file some documents explaining why he neglected Mr. Cabal´s appeal for more than a year. Mr. Cabal has not terminated Mr. Caine´s employment as his attorney, Mr. Caine chose to withdraw as such. At the same time the Fourth Court of Appeals has ordered the Defendant, Mr. Cabal, to file a brief on appeal in this matter. This filing is submitted pursuant to such order. At the outset and regarding his legal representation the Defendant-Appellant needs to remind this court that he has requested that another attorney be appointed in his case for the simple fact that -7- attorney Robert Caine had abandoned his appeal as has been acknowledged by some of the orders entered by this court in the past few months. As previously stated, during the past year Defendant´s attorney Mr. Caine has not filed a brief on appeal on this case and had ignored Mr. Cabal´s letters inquiring about his case. Furthermore, the Fourth Court of Appeals must understand that it was Mr. Caine himself who chose to request from the court leave to withdraw as his legal representative. Mr. Cabal never terminated Mr. Cain`s employment it was a matter of his own choice to resign. Under these conditions it is fair to say that this case does not fall within the scope of Hill vs. State, 686 S.W.2d 184, 187 (Tex. Crim. App. 1985). Therefore, Mr. Cabal is filing this brief under protest since he believes that due to the seriousness of the case, and the fact that he is clearly the victim of a state sponsored conspiracy which aim is to destroy his moral character and ability to practice his trade, he is entitled as a matter of law to have an attorney appointed to represent him in his appeal of the illegally obtained conviction against him particularly since he was deported back to his country of South America on/or about August 30 of 2003. The record of the trial in this case not only shows that the statute used to prosecute and convict Mr. Cabal for the alleged Aaggravated sexual assault of a child is clearly unlawful and unconstitutional, but also that he was the victim of a state sponsored conspiracy which was started at the federal level during the year of 1983 when former president Ronald Reagan issued Executive Orders depriving him of his constitutional rights in the United States up to the present case which shows that the allegations of aggravated sexual assault of a child are nothing else than a fabrication aimed at destroying Mr. Cabal´s good name and ability to practice his trade. The complete lies and contradictions of the witnesses for the state including the alleged victim -8- herself, and the police officers who in numerous occasions gave conflicting testimony contradicting themselves and each other, plus the attempt by the prosecutor and the judge to protect said witnesses while tampering with the rules of evidence in an attempt to stop their testimony during cross examination each time they began to lie and to contradict their own records and each others is fundamental proof of a conspiracy against the Defendant. The actions of the district judge and the prosecutor´s office can be considered nothing but an outrageous violation of human rights, and of the laws and Constitutions of the state of Texas and the United States as well. In fact, these men ought to be ashamed of their outrageous conspiracy who undoubtedly must end at the desk of the president of the United States himself because the show they put on during the trial is nothing but a record of lies and contradictions clearly exposed by their own reports and affidavits which had been filed in earlier months during the beginning of the case. No wonder the judge and the prosecutor tried by all means to intimidate Mr. Cabal and to suppress his attempts to have those records entered as evidence before the jury. What is outrageous in this case, is that the judge and prosecutor argued that sworn affidavits given by police officers, the alleged victim and her partner in crime were not admissible because quote “Such were hearsay even if it showed conflicting testimony”. -9- JURISDICTION The jurisdiction of the Honorable Court of Appeal for the Fourth Judicial District of Texas is invoked herein under: the Texas Constitution, and the Rules of the Texas Supreme Court. Defendant also invokes the jurisdiction of this court under the United States Constitutional Amendments: 5, 6, 8, and 14. This Petition is taken from a final judgment entered on/or about June the 11 of 2003 by judge Dwight Peschall of the 25th judicial district of Texas, in the city of Seguin, Texas, county of Guadalupe. -10- CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED In this Appeal the Appellant who has been wrongfully convicted of the aggravated sexual assault of a child is also bringing a constitutional challenge to the Texas criminal statute: 22.021 (a)(1)(B)(3) which was the law invoked by the Guadalupe County District Attorney in the town of Seguin, Texas to prosecute him for the alleged aggravated sexual assault of a child, and to obtain thereafter an unjust conviction against Mr. Cabal. Since the Petitioner is aware that the 14th Amendment and Article- I Sections 9 (Cl.3), and 10 of the United States Constitution clearly prohibits tampering with the rights and immunities of anyone within the jurisdiction of the United States, he has decided to challenge the constitutionality of the statute since no one in this country can be compelled to face a jury in a criminal prosecution where his constitutional protected rights to a fair trial, to due process of law and to the equal protection of the laws intend to be infringed. The bill of rights of the United States Constitution does protect a person´s right to be treated equally before the law whether that person is 13 or 80 years old something that the Texas statute 22.021(a)(1)(B)(3) seems to suppress as to favor the alleged victim in the dispute. In fact, the jury instructions allowed by this law are so irrational, and/or unfair that it causes any reasonable person to question the purpose of having a trial when a jury can be instructed that a defendant “Does not have the right to plead any affirmative defenses to the charges at issue, and thereafter to prevail based on the merits of the case”. Petitioner respectfully submits that the rights granted by the bill of rights are inalienable, and can not be tampered with. U.S. Constitutional Amendment #14, Section I.; Tribe Constitutional Law -11- 11-2 (2d ed. 1988); 391 U.S. 145; also, please do refer to 389 U.S. 258. In summary, the Texas criminal statute at issue has been enacted in violation to the following United States Constitutional provisions and/or Amendments: A) Article- I, Sections: 9 (Cl.3), and 10; which clearly state that no Bills of Attainder tampering with a defendant´s right to plead affirmative defenses against the charges filed against him can be enacted by either a state or the Federal legislatures. In fact, Article-I further sets forth that no tampering with the rules of evidence is allowed by the United States Constitution. and B) United States Constitutional Amendments: 5, 6, 8, and 14, which clearly establish that in all criminal prosecutions the accused shall be entitled to a fair and/or an impartial trial. He or she shall have compulsory process to obtain witnesses in his favor; shall not be subjected to cruel and unusual punishment, and that the accused shall be entitled to the Equal Protection of the Laws. -12- STATEMENT OF THE CASE On/or about July the 6th of 2001 a Grand Jury in the county of Guadalupe, Texas, did return an indictment against the Appellant in this matter, Jesus Alberto Cabal. He was charged with the purported “Aggravated Sexual Assault of a Child” under the Texas statute 22.021 (a)(1)(B)(3). on April 2, 2003 after a secret trial in which the news media was banned from the proceedings, in spite of the Defendant´s objections, he was found guilty in total conflict with the evidence which did show that Mr. Cabal had been framed and/or was the victim of a conspiracy which involved at least officers of the Seguin Police Department and of the states District Attorney´s office for the 25th judicial district. The Defendant, Jesus Alberto Cabal was sentenced by judge Dwight Peschal on/or about June the 11 of 2003. To further support the argument that the Petitioner is the victim of a conspiracy at the hands of renegade government officials he submits the fact that all of the civil litigation that he has filed since the year of 1982 has been placed under a stiff censorship to ensure that the news media does not broadcast any matters dealing with Mr. Cabal¨s law suits. The same type of gag order was put in place during the criminal trial at issue and carried out under a tremendous censorship in total violation of the 6th Amendment to the United States Constitution which requires that for reasons of fundamental fairness all criminal trials be conducted in the open, and that the public be given a chance to hear all sides of the story. In the case of Texas vs. Cabal, Mr. Cabal has complained that members of the communities where he resides and works had been prejudiced against him since it was state officials which were controlling the information (or disinformation) being disseminated in the form of rumors, without allowing Mr. Cabal`s side of the story to be told. In his defense the Defendant has also argued that based on constitutional grounds and particularly -13- the Bill of Rights, no state of the Union has the legal authority to enact legislation depriving any one within the country of fundamental rights such as those protected by Section- I of the 14th Amendment to the United States Constitution which advocates the Equal Protection of the laws, and those protected by the 6th Amendment to receive a fair trial within state and federal courts alike. In fact, Article I sections: 9 (Cl.3) & 10, makes it clear that Bills of Attainder which tend to tamper with a defendant·s right to set forth affirmative defenses to the charges against him, or tend to suppress the rules of evidence as to deny the defendant his right to receive a fair trial, and thereafter to prevail on the merits of the case are in total conflict with the United States Constitution. This honorable Court needs to be aware that Mr. Cabal had been a lawful resident of the United States for 27 years and his record was spotless, before the dubious charges filed by the state of Texas against him, and also in the four years after the alleged incident. -14- REASONS FOR REVERSING THE CONVICTION AGAINST MR. CABAL AND/OR FOR ORDERING A NEW TRIAL IN THIS CASE Within this segment the Appellant respectfully submits to the Court of Appeals for the Fourth District of Texas the reasons to support his argument that he was unlawfully convicted since the statute 22.021(a)(1)(B)(3) is clearly unconstitutional, and the record of the trial shows that police officers from the city of Sequin and employees of the prosecutors office for the 25th judicial district engaged in a conspiracy against him aimed at obtaining an unlawful conviction against Mr. Cabal. THE CONVICTION OF MR. CABAL MUST BE REVERSED AND/OR THROWN OUT FOR THE FOLLOWING REASONS: A. Mr. Cabal requested from the court before trial to charge the jury with instructions dealing with ENTRAPMENT, something that judge Paschal did not do; yet, the record which has been generated during the trial in fact shows that Mr. Cabal had been the victim of entrapment by police officers, of a conspiracy which involved law enforcement officials at least at the state level, and most likely with the knowledge and approval of members of the state´s prosecutors office, reason which very well explains the stiff censorship surrounding this prosecution. In fact in addition to all the lies and contradictions by the police officers who testified on behalf of the state, a witness with the name of Toni Tristan who was with the alleged victim during the night of the alleged rape, and who on that night stole Mr. Cabal¨s automobile with the alleged victim, clearly and shamelessly bragged during the trial that a police officer stopped them with a stolen vehicle, did not arrest them, nor asked them for driving licenses, but that in fact “let them get away after warning them that they were being sought but the Texas authorities (D.P.S.”). In this regard please refer to pages 109 to -15- 111 of Mr. Tristans testimony before the jury. Also, On page 200 lines 1-9 of agent Olivera´s testimony he totally contradicts himself when admitting that Mr. Cabal had referred to the alleged victim and her friend as “individuals” and not “girls”as the prosecutor had been leading on the jury to believe in previous paragraphs of his testimony. On pages 207 through 209 of Mr. Olivera´s testimony the judge and the prosecutor trying to protect by all means agent Olivera in a cross examination which was leading to show that a conspiracy was unraveling which included police officers from Sequin and San Antonio aimed at “making up” a case against Mr. Cabal. On Page 217 and 218 lines 1-5 of officer Seidenberger he contradicts the statements of the prosecutor who was trying to lead him on to say that Mr. Cabal had referred to the alleged victim and her friend as “girls” and not young ladies. On Page 224 lines 1-15 officer Seidenberger again is contradicting the prosecutor who was leading him on to say to the jury that Defendant had began to volunteer information about having sex with the alleged victim without having been asked any questions when he met Mr. Cabal at the theater parking lot. On page 225 lines 11-25, and page 226, lines 1-6 officer Seidenberger is contradicting again the prosecutor who had been leading him on, and also agent Olivera´s previous testimony when stating that in fact Mr. Cabal had referred to the alleged victim and her friend as young ladies and not as “girls” as they were trying the make the jury believe. On Page 245 lines 11-25, and page 248 lines 1-7 officer Seidenberger is acknowledging once again in spite of the prosecutor´s attempt to say otherwise, that Mr. Cabal had mentioned the alleged victim and her friend as being “young ladies” of 19 and 20 years of age, and not “girls” as the prosecutor was trying to get him to say. On Page 13 lines 5-12 of detective de la Garza´s testimony the prosecutor and the judge prohibiting him from explaining to the jury why Tony Tristan had to be taken to a medical doctor -16- for gender determination. On page 13 and 14 lines 14-25 of De la Garza´s testimony the judge and the prosecutor again prohibiting the detective from explaining to the jury that the alleged victim and her friend Tony already had criminal records. On page 20 of detective San Miguel testimony he acknowledges to the jury that Mr. Cabal had in fact referred to the alleged victim and her friend as being “women” and “loose women” not “girls” as the prosecutor was leading him on to say. On pages 50 through 53 of detective·s San Miguel testimony he testifies before the jury that he did not know that Defendant had told him that he was born in South America and that he remained a Colombian citizen, yet when confronted with his own written record which he had tried to get Mr. Cabal to sign on the date of Mr. Cabal´s police interrogation he had to admit that in fact he knew Mr. Cabal´s origin and nationality. On page 62 lines 15-24 detective San Miguel contradicting himself once again before the jury when acknowledging that the day Mr. Cabal was summoned to the police station, he in fact had told Mr. Cabal before subjecting him to interrogation that his stolen car had been found, but that there was a problem in that the two females involved in the incident were minors, and one of them was claiming that she had been raped. Further proof of a vast conspiracy is given on Page 80 lines 7-17 of detective Gilbert Soliz·s testimony when judge Peschall was trying to intimidate Mr. Cabal when the prosecutor was clearly trying “to put words on Mr. Cabal¨s mouth” and clearly jumping to conclusions about Mr. Cabal¨s intentions and/or his state of mind when he was being interrogated by the police the day he was told that his car had been found and about the true identity and ages of the auto thieves. On page 82 lines 18 through 20 of detective Soliz´s testimony he contradicts his initial testimony to the jury and under cross examination and admits that in fact Mr. Cabal had stated during his -17- interrogation by him and detective San Miguel that “He had met two women who introduced themselves as adults who were 19 and 20 years old”. On page 83 lines 13-17 of his testimony detective Soliz fully contradicts his partner detective San Miguel when stating that the Defendant Jesus Cabal was in fact in a state of shock when he was told that the female who had stolen his car were minors of 13 and a half years of age. He went on to say that Defendant Jesus Cabal in no time had bragged about having sex with the alleged victim, as detective San Miguel had told the jury. On page 86 of his testimony before the jury detective Soliz again contradicting the prosecutor and his partner detective San Miguel, when admitting under cross examination that Mr. Cabal had been approached by two “young women” who were singing and dancing in front oh the bay where he was cleaning his car at the “car wash”in the city of Sequin. B. Mr. Cabal requested from the trial judge to charge the jury with instructions dealing with “MISTAKE OF FACTS” for the simple fact that as the medical records do show he is a legally blind person on his left eye from which he perceives multiple and distorted images. Also, the alleged victim and her friend Tony Tristan testified before the jury that they had approached Mr. Cabal all dressed up and wearing heavy make up, but the most important thing, that they had told him that they were adults of 18 and 17 years of age1. In this regard please do see page 50 lines 19-23 of Mr. Tristan´s testimony before the jury, and also see page 11 and 12 of detective De la Garza´s trial testimony corroborating that fact about the purported ages of these 2 individuals as was told to Mr. 1 This in spite of the fact that when Mr. Cabal was approached by the 2 juveniles they represented to him as being adult women of 19 and 20 years of age. Nonetheless, according with the trial record it was established that women of ages 18 and 17 are consider adults in the state of Texas. -18- Cabal on such night when they approached him. Nonetheless, the jury was not given instructions either for Mistake of Fact even if Mr. Cabal was entitled as a matter of law to have the jury receive such instruction due to the maturity and capacity of deception of these juveniles. Furthermore the trial record shows that on that night these 2 individuals were able to deceive much older people without raising doubts on any one that they were not the adults they were pretending to be. On pages 172 and 173 of the her testimony before the jury the alleged victim, Ms. Briones goes on to describe in detail how they got involved in an accident in San Antonio after stealing defendant´s car, and somehow “engaged in negotiations” with the driver of the other vehicles without raising any suspicion on the other parties about their true ages. On page 168 of her testimony before the jury Ms. Briones goes on to give further evidence of her precocity and maturity while stating that she had been drinking and smoking drugs since she was eight (8) years old. On page 181 lines 1 and 2 Ms. Nicole Briones explaining to the jury about her sexual promiscuity stating that “In the past before meeting Mr. Cabal she had watched porno movies.” On pages 170 and 171 of her testimony before the jury Ms. Samantha Nicole Briones, the alleged victim going into detail about the fact that she is a diagnosed schizophrenic, and that in fact all the members of her dysfunctional family take a variety of drugs which are prescribed for mentally ill people. She corroborates such fact in those 2 pages by stating that she used to turn into a “different person” when she was not taking said drugs, and that in fact a few days before approaching Mr. Cabal she had stopped taking the prescriptions at issue and was running wild. On page 109 lines 9 through 11 of his testimony before the jury, Ms. Briones´ partner in crime a Mr. Tony Tristan, admitting like if it was not a big deal, that in the past he had stolen other vehicles. Thus, the theft of -19- Defendant´s automobile had not been the first time that Toni had been involved in this type of crime. Given the fact that the alleged victim Ms. Briones and her friend were nothing but “classroom felons” as shown by the previously referenced facts Mr. Cabal was entitled as a matter of law to have the jury charged with instructions related to “MISTAKE OF FACT”. C. The trial record in this case appears to have been tampered with in the sense that many of Defendant´s objections to the conduct of the prosecutor who was putting words on Mr. Cabal´s mouth and/or leading on the state witnesses to make false statements do not appear on the transcripts in spite of the fact that Mr. Cabal had raised timely objections to the questions asked. Such was the case on pages 124 and 125 of a Ms. Monica Boone´s testimony. Page 237 of policeman Seidenberger´s testimony when prosecutor was trying to lead him on into saying that Mr. Cabal had referred to the alleged victim and her friend as “girls” and not young women. Page 20 and 21 of detective San Miguel testimony before the jury when the prosecutor was again trying to lead him on to say that Mr. Cabal had used the word “girls ” instead of “women” or “lose women”. Page 218 lines 1-25 shows the prosecutor again trying to lead on officer Seidenberger to say that Defendant had referred to the alleged victim and her friend as “girls” and not “young women”. Page 89 of detective Soliz´s testimony shows that when Mr. Cabal confronted the detective with his own affidavit exposing his contradictions then the prosecutor and the judge jumped in to protect him from further exposing his dual testimony. Page 83 lines 1-12 of Toni Tristan´s testimony shows the judge denying Mr. Cabal his right to impeach Tristan´s credibility with his own affidavit which had been given to the Sequin police department obviously under oath. Page 69 and 70 of Tony Tristan´s testimony show the judge and the prosecutor intimidating the Defendant about not to bring forward the sexual promiscuity history of the alleged victim and Tristan´s himself, or “else”, that is, to be -20- sent to jail. Page 20 of detective San Miguel´s testimony show that Mr. Cabal´s objections to the prosecutor´s attempt to lead the witness on to say things which were not corroborated by the record, and that already had been contradicted by the same police officers were completely overruled. D.) THE CHALLENGED TEXAS STATUTE 22.021(a)(1)(B)(3) IS PRIMA FACIE UNCONSTITUTIONAL, SUCH LAW DEPRIVES A DEFENDANT OF THE BASIC RIGHT TO RECEIVE A FAIR TRIAL. IT DENIES COMPULSORY PROCESS TO OBTAIN WITNESSES IN HIS FAVOR, AND NO LESS IMPORTANT, DEPRIVES A DEFENDANT OF HIS RIGHT TO THE EQUAL PROTECTION OF THE LAWS AND TO RECEIVE THE FULL PROTECTION OF THE CRIMINAL RULES OF EVIDENCE. The law at issue is unconstitutional as currently drafted since it deprives a defendant of his most basic human rights and constitutional protections something that the U.S. Constitution states can not be done no matter what. The “rules of evidence” and the “bill of rights” can not be bent or twisted in any shape or manner as to give more protection to one litigant over another and this principle is very well set forth in the Federal Constitution. The questions raised within this appeal are of extreme national importance since it deals with a state´s authority 2 or right to deprive an accused defendant of his most basic constitutional rights, as protected by the Federal Constitution, such as to set forth affirmative defenses against criminal charges filed against him by the state, and thereafter to prevail on the merits of the case: 2 In this case the State of Texas. The Appellant-Defendant, Jesus Alberto Cabal, is a person of Hispanic origin, and of Colombian national origin who at the time had been a lawful permanent resident of the United States for 28 years. He respectfully submits to this Court of Appeals for the Fourth District that the Texas Penal Code: 22.021 (a)(1)(B)(3) has been enacted in violation to the Equal Protection clause of the 14th -21- Amendment to the United States Constitution. Among other things, the bulk of the prison population of those individuals charged and convicted under this law are either Hispanics (mainly of Mexican origin), or African-Americans. Furthermore, the law is unconstitutional because it is also in conflict with the provisions of Article-I sections 9(cl.3) and 10 of the Constitution, which clearly outlaws Bills of Attainder, and any kind of tampering with a person´s right to set forth affirmative defenses to the charges at issue. Article-I also prohibits tampering with the rules of evidence in a criminal proceeding. The Texas statute unfairly allows a judge or a prosecutor to instruct the jury that there is no defense whatsoever to the charges of aggravated sexual assault of a child even in a situation when the evidence shows that the accused person is in fact the true victim in the whole affair. The law does allow a jury trial, yet, such fact becomes meaningless once the judge is allowed to instruct the jury in that there is no defense whatsoever to the charges at issue, and that any type of sexual contact even if it was initiated and/or welcomed by the alleged victim herself after deceiving the defendant about her true identity, are grounds for a conviction. In other words, defendant´s trial before a jury becomes a charade since due to the restrictions imposed as to deny a fair trial, it becomes really a “trial by the legislature” which is outlawed by Article-I sections 9(cl.3) and 10 of the Constitution as previously stated. In summary it appears that the reasoning behind not allowing “affirmative defenses” to the charges under this law is just a “gimmick” to ensure that the state can literally railroad any defendant belonging to a racial minority, and send him either to prison or to have deported from the United States. A good example that state officials do have a secret agenda when prosecuting cases under this law is given by Mr. Cabal´s case in which there was no prosecutorial discretion whatsoever before filing such charges. According with the prosecution they had to indict Mr. Cabal because the -22- law does not allow him to plead any affirmative defense to the charges at issue. Furthermore, Petitioner has alleged throughout this litigation that federal and state law enforcement officials do have videotaped evidence of what happened that evening in his home, given the fact that since the year of 1982 he has been involved in civil rights litigation against private corporations and officials of the Executive branch of the Federal Government alike. Plaintiff has been told during the past 20 years by close friends, acquaintances, and by former employers that in fact he has been kept under electronic surveillance around the clock. The wiretapping seems to have been carried out under the excuse of National Security by the F.B.I. and by the U.S. Secret Service not only at his place of residence, but also in his places of employment attempting to monitor his daily activities. As Petitioner has sets forth in his law suits filed against the U.S. Department of Justice et. al., such surveillance on several cases led to the loss of his employments in the state of Missouri, and of course in Texas since as a result of the charges of aggravated sexual assault of a child he lost his job at Daley International as a Production Manager and Plant Chemist. THE LAW: The Fourteenth Amendment to the United Constitution states in part: “ No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within his jurisdiction the equal protection of the laws.” Petitioner respectfully submits that the state of Texas already has a record of using state laws to suppress the rights of minorities. In a decision rendered by the United States Supreme Court in Batson v. Kentucky, (U.S. Supreme Court), 476 U.S. 79, 1986; Justice Powell in page 5 of his opinion does give as an example a case in Texas in which a book used by the prosecutor´s office in -23- Dallas County, explicitly advised prosecutors that they conduct jury selection as to eliminate “any member of a minority group”. He goes on to say about that Texas case that in 100 felony trials in Dallas County between 1983 and 1984, prosecutors peremptorily struck 405 out of 467 eligible black jurors; according with Justice Powell the chance of a qualified black sitting on a jury was 1 in 10 compared to 1 in 2 for a white. It is Appellant¨s understanding from conversations he had with many Texas residents who either have relatives or friends charged under the statute 22.021 (a)(1)(B)(3), that probably as much as 70% of the individuals charged and convicted under this law are indeed Blacks or Hispanics. Therefore, Mr. Cabal respectfully submits to this Honorable Court of Appeals that judge Peschall was in error when failing to instruct the jury that Mr. Cabal was entitled to have the jury charged with instructions for ENTRAPMENT, and also with instructions dealing with MISTAKE OF FACT as Mr. Cabal had requested. In summary, the law at issue is prima facie unconstitutional since it has tremendous conflict with the Equal Protection clause of the 14th Amendment to the U.S. Constitution reason why it can be challenged in federal court without proof of any special damages. Yick Wo vs. Hopkins, Sheriff, 118 U.S. 356 (1886); see Swain v. Alabama; also Strauder v. West Virginia, 100 U.S. 303 (1880); and United States vs. Carter (C.A. 8th Circuit), 1975. The clause of allowing no “affirmative defenses” to the charges at issue indeed appears to be a tool introduced to selectively persecute minorities and nothing else. Furthermore, Article 1 sections 9(cl.3) and 10 of the United States Constitution confirms the unconstitutionality of the Texas statute at issue when it sets forth that the states of the Union do not have the authority to pass any Bills of Attainder or Ex Post Facto laws. The Texas statute is very well known to deny the accused his most basic right to present a defense to the charges at issue and -24- thereafter to prevail on the merits of such defense. 404 U.S.496, 503, 504. Moreover, the law does not allow a defendant to depose the alleged victim, nor to depose potential witnesses whose testimony will clear him of the charges against him, and who could provide evidence thereafter that the alleged crime may actually have been a fabrication in furtherance of a conspiracy. In fact, such statute goes as far as stating that a defendant must be convicted if sexual intercourse has occurred, regardless of the facts of the case. In other words, if a legally blind man is seduced by a promiscuous young woman who claims to be 19 years old when in fact she is only 13 and 1/2 years old, he is not allowed under this law to establish an affirmative defense not even if the alleged victim is a promiscuous and rather deformed dwarf whose physical appearance causes her to look many years older than she actually is, and therefore impossible for the legally blind man to discern. This deprivation is indeed unconstitutional and in total violation to the rules of evidence since the person who really has been deceived and victimized is then made out to be the criminal by placing restrictions on the manner that the accused is allowed to proceed to trial, and to conduct his defense of the charges filed against him. This is something that the 5th, 6th, 8th, and 14th Amendments to the United States Constitution do prohibit, or outlaw. The state of Texas can not even argue that the greater good of the community has been taken into account when enacting this unconstitutional law because convicting innocent people of crimes for which they are not liable can hardly be considered an act that benefits a community. Particularly, during these times when on a monthly basis throughout the United States young men and women of 13 and 14 years old are tried as adults due to the severity of their crimes. -25- CONCLUSIONS For the reasons given by Mr. Cabal within this brief on appeal, he respectfully requests that the Court of Appeals for the Fourth District of Texas does reverse the conviction unlawfully obtained by a jury from the 25th judicial District of Texas in the case of the State of Texas vs. Jesus Alberto Cabal and entered on/or about April 2, of the year 2003 under the Texas penal code 22.021(a)(1)(B)(3) as currently drafted. The record of this trial does show that the Defendant Mr. Cabal is not guilty of the charges at issue, and that in fact he was the person victimized and deceived by the alleged victim and her friend during the night of April 28 of the year of 2001 when the prosecution alleged that a rape took place. The jury in this case was mislead and misinformed in regard to the law and the constitution as to force them to come up with a fraudulent conviction against Mr. Cabal in violation of Texas and Federal laws and also their respective Constitutions. The jury was given erroneous and unfair instructions in spite of Mr. Cabal´s objections that his rights were being violated because the evidence was in support of his argument that no rape had taken place, and that on the contrary the charges and the events surrounding the accusations were in furtherance of a conspiracy against him as shown by all the record in the case. .This fact is further corroborated by the stiff censorship which was imposed surrounding the trial of this case. This fact is just too much to be disregarded and proves that the judge and the prosecutor knew that the law at issue is in total conflict with Amendments 5, 6, 8, and 14th , and with Article-I, Sections 9(cl.3) &10 of the United States Constitution causing the conviction against Mr. Cabal to be void. Smith vs. State of Texas, 689 S.W.2d 227 (Texas Crim. App. 1985). -26- In fact, the mockery and injustice of the treatment received by the Defendant during the trial of this criminal case prove Mr. Cabal´s assertion that the statute at issue falls within the category of “Trial by legislature” as outlawed in U.S. vs. Brown, 381 U.S. 437 (1965), and Cummings vs. Missouri , 4 Wallace 277 (1866). This law without a doubt fails the “rational basis test” as defined in 220 U.S. 61, 78 since the state of Texas can not possibly explain in a logical manner how convicting an innocent person would be an act that benefits the community in this state. In summary, Mr. Cabal respectfully requests herein that the Court of Appeals for the Fourth District of Texas does reverse his conviction on the grounds that: A. the Texas penal code 22.021(a)(1)(B)(3) has been enacted by the Texas legislature in violation of the United States Constitutional Amendments 5, 6, 8, 14, and Article-I sections 9 and 10. The law in question represents nothing else than a “Bill of Attainder” as referred to in Ex Parte Garland, 4 Wallace 333 (1886); Cummings vs. Missouri (1866); U.S. vs. Brown, 381 U.S. 437 (1965); please, in this regard do refer as well to Lawrence H. Tribe, American Constitutional law s.10-4, at 642, n.9 (2nd ed. 1988). B. That The evidence supports Defendant¨s arguments that no rape took place as he was charged with, that there was ENTRAPMENT by police officers, that there was deception by the alleged victim and her friend and therefore MISTAKE OF FACTS, and C. That the jury was tampered with and/or was not properly instructed since the defendant Mr. Cabal was entitled as a matter of law to have the jury charged with instructions for ENTRAPMENT, and also instructions dealing with MISTAKE OF FACT based on fundamental fairness and impartiality. WHEREFORE, Petitioner respectfully prays that the Honorable Court of Appeals for the Fourth District of Texas based on the authorities and evidence submitted herein does reverse the conviction against him entered on/or about June 11 of the year 2003 by judge Dwight Paschal from the 25th judicial District of Texas. Respectfully submitted, Jesus Alberto Cabal . Jesus Alberto Cabal Appellant-Defendant, pro se; Colombia, South America. CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of this Brief on Appeal has been served on/or about September the 16th , 2004, via electronic mail at the office of the Texas attorney General as shown below: Guadalupe county district attorney at: Attn: Mr. W.C. Kirkendall 113 South River, Suite: 206 Sequin, Texas 78155 Jesus Alberto Cabal . Jesus Alberto Cabal Appellant
===RELEVANT HISTORICAL FACTS OF THE CASE AT ISSUE===