UNITED STATED DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

 

 

EDMUND B. HEIMLICH,                                             $

                                                                             $       

                                      Plaintiff                           $

                                                                             $

V.                                                                          $                           CIVIL ACTION NO.

                                                                             $

THE STATE OF TEXAS AND                                     $

HARRIS COUNTY, TEXAS, ET AL                    $                 

HARRIS COUNTY, TEXAS, ET AL                                 $                  ________________

JOHNNY B. HOLMES, Individually                              $

CHARLES (CHUCK) ROSENTHAL, Individually               $

JOHN BOONE, Individually                                        $

MILTON OJEMAN, Individually                                   $

                                                                             $

                                                Defendants.            $

 

 

___________________________________________________________________________

 

PLAINTIFFS’ ORIGINAL COMPLAINT and JURY DEMAND

_____________________________________________________

 

3.0

BACKGROUND

3.01.                              Plaintiff had a 20 year career in the Real Estate Profession. Beginning in 1976 when licensed as a Real Estate Agent in the State of Ohio and as an Appraiser under contract for a County government in that State. Plaintiff graduated with honors with a four year degree in Finance with a concentration in the study of Real Estate from Wright State University. While there Plaintiff was awarded the prestigious Thomas Welsh Real Estate award “for his fine academic performance in the area of Real Estate”.

3.02.                              In 1980 Plaintiff relocated to Texas where he distinguished himself in the employment as a manager of large commercial Real Estate for National Companies. In this capacity he was entrusted with over $50,000 per month in rental receipts. Much of which was in the form of cash. He enjoyed an honorable reputation and the trust of his employers.

3.03.                              In 1980 he satisfied the requirements to became a licensed Real Estate agent in the State of Texas. In 1988 he satisfied the state’s requirements for licensure as a Real Estate Broker and established his own firm in August of that year. For the five years of it’s existence his brokerage business was located at 10375 Richmond Avenue in Houston, Texas. During this time he was the sponsoring broker of over 40 real estate agents and was responsible for the actions of as many as 21 full time agents operating from his facilities at one time.

3.04.                              The suit arises out of the improper and unwarranted seizure of funds from the business account of Heimlich and criminal prosecution of Heimlich in a criminal case instituted in 1993. The subsequent indictment was ruinous to Heimlich and caused him to feel compelled to leave the Real Estate business never to return. His experience with the Harris County District Attorney’s office has made him reluctant to ever do business again in the State of Texas.

3.05.                              He was forced by their action to maintain his residence in Texas and was unable to clear his name until March 11, 1999. On that day his long awaited vindication was provided by the Opinion of the Fourteenth Court of Appeals for the State of Texas. The Court ordered the judgment against Heimlich be reversed, the indictment be dismissed, and Heimlich acquitted.

3.06.                              The indictment of Heimlich mean that even well-established economic transactions, fully in compliance with contracts promulgated by the Texas Real Estate Commission, create unpredictable prospects of criminal prosecution, which undermine, among others, the business judgment rule and constitutional provisions against the impairment of contracts.

3.07.                             The success of the Harris County District Attorney’s Office in seizing funds from the business account of Heimlich’s brokerage sends a destructive message to businesspeople exercising normal and necessary business judgment. It means that they can be transformed unexpectedly into jailbirds by a combination of illogic and speculation. Above all, if one engages in transactions that state law declares are lawful, one is subject to implication of crimes based on speculation of “intent” when utilizing privileges provided by contract and no crime has been committed.

3.08.                              This action of Harris County’s District Attorney has real consequences to people who will take this case as an example of how their own transactions may later be distorted in criminal prosecutions. It is not just conviction of a crime that businesspeople must fear. A prosecution such as this one, even if it terminates in acquittal, is ruinous; mere designation as a target is disastrous. Businesspeople cannot afford to risk even the possibility that their actions will be viewed as unlawful. Instead, they will, as Heimlich has done, seek safe harbors. All incentive for innovation, entrepreneurial enterprise, and productivity will be lost.

3.09.                              Evidently, one cannot use such sources as, well established commercial law, The Texas Real Estate licensing act, and even contracts promulgated by the State’s own attorneys, because those sources were knowingly disregarded by the defendants' actions here. Laws and contracts are commonly relied upon to resolve the numerous issues of ambiguous fact that inevitably arise in even the simplest transactions. Now law and contracts are meaningless when they can be overruled by the arbitrary judgment of a investigator or prosecutor. Thus, the result of this conviction will be to stifle business transactions and indeed the result will be to stifle even necessary and well-established kinds of economic transactions. It therefore becomes necessary for Heimlich to seek redress and remedy from this court.

4.0

FACTS - I

 

4.01.                  A competent white-collar defense lawyer in 1993 would have advised Plaintiff that his actions were lawful. In fact; the State Attorney General’s office and the Department of Justice in Washington DC did just that. They advised Heimlich his actions were lawful and that the actions of the Assistant District Attorney were not within legal bounds or the realm of his authority. Heimlich relayed this information to Assistant DA Boone and to his superior Assistant Attorney (DA Holmes’ “number two man”) Charles “Chuck” Rosenthal. Their response was a vindictive and aggressive ‘win at all costs’ prosecution of Heimlich.  They became intent upon ‘showing Heimlich’ they, of the Harris County District Attorney’s Office, are above the law and answerable to no higher authority.

4.02.                  The seizure, indictment, and conviction perpetrated by the Harris County District Attorney’s office against Heimlich threatens the business judgment rule and the Rule of Law upon which this nation prides itself.

4.03.                  John Boone, Assistant District Attorney and chief of the Check Fraud Division, and Milton Ojeman, investigator in the District Attorny’s office working under the direction of John Boone, intentionally and knowingly, denied Heimlich his Constitutional rights. Boone, while acting in the role of a law enforcement officer, and his investigator Ojeman, utilized their positions, under color of authority, to seize property and charge Heimlich with a crime they knew was a legal impossibility. On March 11, 1999 the Fourteenth Court of Appeals for the State of Texas acknowledged that Heimlich had committed no crime. The judgment of conviction of Edmund B. Heimlich was ordered to be reversed, the indictment be dismissed, and the appellant (Heimlich) acquitted. A true and correct copy of Opinion is attached as Exhibit A.

4.04.                  Heimlich was the Broker/Owner of a Real Estate Brokerage. Under his sponsorship was Eric Pettorino, a licensed Real Estate agent and Independent Contractor of Heimlich’s Brokerage. There was a contractual agreement between Heimlich and Pettorino detailing the terms and conditions of Heimlich’s sponsorship of Pettorino (Exhibit B).  This contract was drafted by a staff of attorneys working with the State and promulgated by the State Agency the Texas Real Estate Commission under the auspices of the Texas Real Estate Licensing Act!!

4.05.                  In the Course of their business Heimlich placed a stop-pay on a post-dated check issued to Pettorino (Exhibit C). The stop-pay was lawful and consistent with the terms of the contract between Heimlich and Pettorino, the commercial laws and statues of the State of Texas.

4.06.                  Pettorino made complaint to John Boone alleging Heimlich was “trying” to steal his money. The complainant never accused Heimlich of a crime. His only statement was he “suspected” a ‘bad intent’. Pettorino did not sign the affidavit in support of the warrant to seize the funds.

4.07.                  Pettorino testified he was instructed by Boone to send Heimlich a 10 day demand letter (Exhibit D). As to John Boone’s conduct during the investigative stage of this proceeding, Boone clearly went beyond his duties as an investigator when he initiated an unlawful seizure, in violation of Heimlich’s Constitutional right, by instructing Heimlich’s bank to freeze his account.

4.08.                  When Heimlich discovered the freeze he was told to call John Boone. Heimlich made repeated calls to John Boone’s office but was told Boone was "out-to-lunch" or "training a class". Without a discussion with the District Attorney’s office and a release of the hold on the funds at the bank it was impossible for Heimlich to make settlement with Pettorino. Heimlich then called the State of Texas Attorney Generals office and spoke to Mr. Shane Phelps. He advised Heimlich a stop pay was not a criminal offense. Exhibit E is attached as evidence of Heimlich’s phone call to the Texas State Attorney General at 512-463-2191 and 512-320-5370.

4.09.                  Heimlich then called the Department of Justice in Washington D.C and spoke to Joseph Gangloff of the office of Public Integrity.  Heimlich was, likewise, informed that no District Attorney, of any County, within the United States had the authority to instruct Heimlich’s bank to place a freeze or hold on his account. Exhibit E is attached as evidence of Heimlich’s call to The Department of Justice at 202-514-2000.

4.10.                  Heimlich again called for Boone. When told he was unavailable Heimlich asked for John Boone’s superior and was referred to Chuck Rosenthal. Only then did Boone return Heimlich’s calls. Heimlich expressed his displeasure with the hold that prevented him from settling his affairs with Pettorino. Heimlich conveyed to Boone that both the Attorney General’s Office and the Department of Justice advised Heimlich that Boone had no authority to instruct Heimlich’s Bank place to place a hold on his account. Boone became agitated upon hearing Heimlich had spokent to the State Attorney General and the Department of Justice and hung up on Heimlich.

4.11.                  Boone’s vindictive response was the next day when Boone prepared and presented a misleading, fraudulent, affidavit to a magistrate, secured a warrant, and had the money seized from Heimlich’s account and moved to the county registry.

4.12.                  Boone testified he drafted and reviewed the affidavit attached to the warrant to seize the disputed funds (see Exhibit F , copy of pg 113 of trial transcripts). Boone knew the affidavit to be fraudulent by the very contradictions between the statements in the affidavit and the contract (Exhibit B) Boone attached to the affidavit. Ojeman, the investigator in Boone’s office, clearly went beyond his duties as an investigator when applied his signature to the lies in his affidavit, drafted by Boone, and presented in support of the Search Warrant.  The seizure warrant caused Heimlich’s wrongful indictment and trial. Ojeman clearly went beyond his duties when he, NOT the complainant Pettorino, sign it.

Lies and Fraudulent Errors in Affidavit for Search Warrant

Attached as Exhibit G

 

1)     The affidavit begins with “Your Affiant has spoken with Eric Pettorino….employed as a real estate salesman”. Boone knew or should have known from this very first statement that title to the money he sought to seize belonged to the Broker (Heimlich) under which Pettorino was sponsored according the Texas Real Estate Licensing Act.

 

2)     First sentence continues with “under the license of a man by the name of Edmund Bryan Heimlich” the Plaintiff. Here, again, Boone knew, or should have known, the title to the money he sought to seize belonged to Plaintiff as the sponsoring broker by law of the Texas Real Estate Licensing act.

 

3)     Second sentence states “Mr Pettorino further informed your affiant that his contract with Mr Heimlich…”. Here Boone knew, or should have known, the money he sought to seize was the subject of a civil, not a criminal, dispute.

 

4)     “…provides that he pay Mr. Heimlich three hundred dollars per month as a “Broker’s Management Charge…” indicating Boone knew Pettorino had, or could have, contractual debt obligations to Heimlich.

 

5)     Second paragraph of the affidavit begins with “Mr. Pettorino told your affiant that on August 25, 1993, he completed the sale of some real estate from the Veterans Adminstration to a private buyer and received, as commission, a United States Treasury check made payble to “Edmund B. Heimlich C O Agent Cashier”. This is intentionally misleading. The check, attached as Exhibit H, is payable to Edmund B. Heimlich. The C O Agent Cashier is under Edmund B. Heimlich’s name and part of a PO address for the Veterans Administration. It refers to the VA as the “Agent Cashier”. The check, a copy of which Boone possessed, was clearly payable to Edmund B. Heimlich, the Plaintiff, and NOT to the complainant Pettorino for whom Boone was allegedly seizing the funds. 

 

6)     This paragraph also states that Pettorino submitted the check to Heimlich on August 25, 1993 and at the same time received a check dated August 26, 1993. Here Boone acknowledges in the affidavit the request for seizure is based on a post-dated check. Boone knew the penal code in effect at that time precluded prosecution on post-dated checks.

 

7)     Affidavit states “Mr. Pettorino stated to Affiant that he inquired of Edmund B. Heimlich to find what reason he had for stopping payment on the check, but that Mr. Heimlich refused to give him any reason.” This is heresay. Pettorino did not sign this affidavit and no such affidavit by Pettorino has ever been produced. This is also false. Pettorino had a copy of the stop-pay order and the affidavit even states the stop-pay order shows “cover charge due”. A review of the contract shows that, in fact, a cover charge was due from Pettorino as well as other potential charges. It is also notable that there is no statement suggesting Heimlich made refusal to settle his dispute with Pettorino.

 

8)     The fourth paragraph is most telling of all. It states: “Affiant has reviewed the original check presented to the bank returned marked “stop payment”, a copy of the “Broker and Salesperson Agreement (Independent contractor)”, a receipt for Mr. Pettorino’s August Broker ‘s Management Charge” and has found them to be consistent with Mr. Pettorino’s statements set forth above.”  Here again this is heresay as Pettorino did not sign this or any other affidavit. And a cursory review of the “Agreement” shows this to be patently false. The Agreement is a contract drafted by attorneys working for the state and promulgated by a state agency, The Texas Real Estate Commission, in accordance with the Texas Real Estate Licensing Act and clearly states:

*   3(b) In no case shall Broker be personally liable to Salesperson for any fees not collected, nor shall Salesperson be liable to Broker for any fees not collected.

Heimlich, as Broker, never collected the fees. Obviously; Boone’s actions prevented him from doing so.

*   3(c) The division and distribution of earned fees as set out herein shall take place as soon as practicable after collection and receipt of such fees. The parties agree that Broker is authorized to deduct amounts due Broker from Salesperson from any fees payable to Salesperson hereunder.

Broker, Heimlich, was blocked from ‘collection and receipt of such fees’ by Boone’

 

*   3(d) All fees and other sums earned by or through the efforts of Salesperson shall be payable to and are and shall remain the sole and exclusive property of Broker, and Salesperson shall have not direct interest whatsoever in any such fees or the collection thereof and shall look solely to Broker for payment of sums due Salesperson under the terms of this Agreement.

Heimlich had legal titled to the funds

 

*   14(a) Neither party shall be liable to the other for any commission not collected.

Heimlich had no debt to Pettorino therefore no theft had occurred.

 

*   14(g) Broker may deduct any part or all past due charges, late charges, management fees coming due within the next 10 days, and expenses due Broker, from commissions payable to Salesperson and/or forfeit all or part of Salesperson’s Security Deposit.

Heimlich had a contractual right to collect any and all charges coming due. Pettorino was able to avoid his obligations to Heimlich, steal from Heimlich, with the aid of John Boone and the Harris County District Attorney’s Office acting under color of law.

 

9)     This affidavit was submitted to, and signed by, the Magistrate on September 1, 1993 based on dispute over check written just a few days before on August 27, 1993. On that date Boone had in his possession a written statement (titled ‘Memorandum’) he had requested from the bank. Dated August 31, 1993 it states “If payment had not stopped, the check No. 1088 payable to Eric Pettorino whould have been honored on 08/26/93” signed by Betty Kristoffersen of the Bank (see Memorandum attached hereto as Exhibit I). Boone knew, as Kristoffersen latter testified, that if Pettorino could have cashed the check on the 26th then likewise Heimlich could have withdrawn the funds on the 26th which he surely would have done if his intention had been theft which was alleged as the cause for the warrant to seize the money. True and correct copy of trial transcript is attached hereto as Exhibit J.

 

10) Not only had Heimlich NOT committed any theft; the affidavit states “affiant has obtained copies of the records of Bank Texas, N.A. ….”. Boone and Ojeman knew the account held sufficient funds to cover the check and therefore Heimlich was not even subject to penal code provisions for even a bad check charge.

 

FACTS OF LAW

 

It is a Judicial fact that The Uniform Commercial Code and Texas Business and Commerce Code, Section 4.403(a), was a valid and enforceable statue in the State of Texas, on the days in question, entitled CUSTOMER’S RIGHT TO STOP PAYMENT, and did read as follows:

(a) A customer may by order to his bank stop payment of any item payable for his account but the order must be received at such time and in such manner as to afford the bank a reasonable opportunity to act on it prior to any action by the bank with respect to the item described in Section 4.303.

AND;

That on August 26, 1995, The Uniform Commercial Code and Texas Business and Commerce Code, Section 3.409(a), was a valid and enforceable statute in the State of Texas, entitled DRAFT NOT AN ASSIGNMENT, and did read as follows:

          (a) A check or other draft does not of itself operate as an assignment of any funds in the hands of the drawee available for its payment, and the drawee is not liable on the instrument until he accepts it.

 

AND;

That on August 26, 1995, The Uniform Commercial Code and Texas Business and Commerce Code, Section 3.601(b), was a valid and enforceable statute in the State of Texas, entitled DISCHARGE OF THE PARTIES, and did read as follows:

          (b) Any party is also discharged from his liability on an instrument to another party by any other act or agreement with such party which would discharge his simple contract for the payment of money.

 

1.     Article 1, Section 9, of the Texas Constitution provides:

The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person o thing, shall issue without describing them as near as may be, nor without probable cause, unsupported by oath or affirmation.

2.     Article 18.01(b) of the Tex CCP  requires:

“A sworn affidavit setting forth substantial facts establishing probable cause shall be filed in every instance in which a search warrant is requested. The affidavit is public information if executed.”

 

4.13.                  A seizure warrant issued on the basis of a misleading presentation is a violation of Heimlich’s Constitutional Rights and is not protected by immunity defense (Burns v. Reed, 500 US 478 [991]). Boone’s legal advice to his investigator Ojeman is not protected by immunity defense (Kalina v Fletcher, 522 US 118 [1997]).

4.14.                  Boone presented this affidavit to a Magistrate, just 2 days after Boone had instructed Eric of the required 10-day demand period (which was the day after the stop-pay). Evidence Boone knew the law but chose to disregard it to ‘show Heimlich’. This was just 4 business days after the stop-payment order. This is evident by the attached Exhibit G copy of the warrant and affidavit with the contract attachment submitted to the Magistrate. It is apparent to any objective party reviewing the evidence that the Boone’s intention was to color, otherwise lawful conduct, as being sinister and improper.

4.15.                  The initial seizure via bank hold, at Boone’s instruction, was a seizure without warrant or affidavit in violation of Heimlich’s Constitutional Rights. Any reasonably objective attorney would have recognized the dispute between Heimlich and complainant as a civil, not a criminal, matter. As the Appellate Court pointed out, the seizure precluded Heimlich from settling this dispute, and/or satisfying the demands of Boone or Pettorino.

4.16.                  The seizure of property is a drastic action that should only be taken after a reasonable and objective investigation. A reasonably objective investigator would have taken a moment to check the property records. A reasonably objective Assistant District Attorney would have recognized Heimlich owned a home, in addition to owning a business, and had family living and owning homes in Houston. Heimlich’s office was well furnished with substantial value in office equipment, furniture and fixtures. These easily attainable facts show Boone had no reason to assume Heimlich would withdraw the money and leave the complainant without possibility remedy in the civil courts. Reasonably objective Assistant District Attorney would have allowed Heimlich an opportunity to settle his affairs with the complainant before blocking any means for Heimlich to do so.

4.17.                  Boone knew, or should have known by reasonably objective inquiry and observation, that Pettorino’s complaint was on a post-dated check. Exhibit C. . Failure to do so was intentional or unexcusable ignorance.

4.18.                  A reasonable and objective investigation would have noticed the stop pay was for "cover charge due" Exhibit K and recognized this was for the month due to start in 3 days. The contract between Pettorino and Heimlich clearly states Heimlich’s right to deduct charges due or coming due within the next 10 days Exhibit B. A reasonable and objective investigator would have read the contract and recognized this. Failure to do so was intentional or unexcusable ignorance.

4.19.                  A reasonable investigator would have asked Pettorino if his management fee (cover charge) had been previously deducted from commission checks that came in prior to the end of the month. This was easily observable by looking at the receipt Pettorino showed Boone as proof his August payment was paid Exhibit L. It shows a deduction from a commission check on July 27th for the August Management fee. Simple, basic, questioning would have revealed the Exhibits M & N showing this was customary practice between Heimlich and Pettorino. . Failure to do so was intentional or unexcusable ignorance.

4.20.                  Boone’s presentation of this affidavit to a Magistrate is a travesty. As an Assistant District Attorney he had a duty to be truthful and forthright to the Magistrate. Boone and Ojeman’s factual and legal misrepresentations, innuendoes, conclusory comments and opinions utilized to secure the indictment of Heimlich were clearly improper and illustrate that the prosecution of Heimlich was indeed malicious.

 

 

5.0
FACTS – II.

5.1.                      In his attempt to “get” Heimlich, Boone suborned Ojeman and together they crossed the line from their discretionary duties as investigator and prosecutor and commenced down a path of conduct that was so improper that it became actionable.  Heimlich files this 42 U.S.C. 1983 claim, in part, under Texas law as a tort action for Malicious Prosecution.

5.2.                      Heimlich filed his Motion to Set Aside and his attorney filed his Motion to Quash. Within three months Heimlich had presented the District Attorney’s office with Exhibit O proving Pettorino’s indebtedness to Heimlich in the minimum of $900. Funds for which Heimlich has never been paid. In arrogant disregard for the law, to cover their own mistakes, the District Attorney’s office persisted in the prosecution of Heimlich and, in the process, knowingly aided Pettorino in theft of services from Heimlich. In doing so Boone and the District Attorney’s office clearly crossed the line from their discretionary duties and commenced down a path of conduct that was so improper it became actionable.

5.3.                      Within three months of the seizure Pettorino and the Bank Officer gave sworn testimony that gave Boone and Harris County District Attorneys Office additional information showing the legally impossible nature of their charge against Heimlich. However; Boone and the Harris County District Attorneys office continued to withhold the funds from both Heimlich and, the alleged victim, Pettorino, for another 2 years while attempting to strong-arm Heimlich into releasing them from liability for their violations of his Constitutional Rights. In doing so Boone and the District Attorney’s office clearly crossed the line from their discretionary duties and commenced down a path of conduct that was so improper it became actionable.

5.4.                      Heimlich made repeated attempts to secure release, directly through his own motions, and through his attorney, so he could settle the civil dispute. The District Attorneys office ignored all attempts of reasonableness. Heimlich was already under arrest and bond. It is clearly reasonably objective that, had a release of the seized funds not resulted in settlement of the civil dispute, the District Attorney’s office could have proceeded with a charge against Heimlich. The District Attorney’s office stubbornly persisted in their violation of Heimlich’s Constitutional Rights and maintained their hold on the funds so as to maintain the illusion of a theft when they knew no theft by Heimlich had occurred. To the detriment of the alleged victim, Pettorino, as well as to Heimlich.

5.5.                      The Court set a hearing to determine ownership but at the request of the District Attorneys office canceled it (Exhibit P). Heimlich made written request to the Court for release of the money so he could settle with Pettorino in 1993 (Exhibit Q). Heimlich then filed a civil case against Pettorino and again made request for release of the money in 1995 (Exhibit R). Now requesting the funds be transferred to the civil court # 157 where dispute mediation had been schedule on the civil case. The District Attorneys office refused to allow it. Dispute mediation was scheduled but the District Attorneys office intervened and prevented it’s occurrence before a criminal trial.

5.6.                      At one point Heimlich had agreement with the Prosecutor to allow the funds to be released directly to Pettorino in exchange for dismissal of the charges against him. The District Attorney’s office cancelled the agreement when Heimlich would not agree to their demand that Heimlich release them from any liability for their actions. It is apparent to any objective party reviewing this evidence the District Attorney’s office was not acting out of concern for Pettorino as an alleged crime victim. Their only desire was to ‘show Heimlich’ they were above the law. The District Attorney’s office then orchestrated a sham trial to secure Heimlich’s conviction. The sham trial was an attempt to cover John Boone and Milton Ojeman’s violation of Heimlich Constitutional Rights and obstruct justice.

5.7.                      It is apparent to any objective party reviewing these events that the District Attorney’s office was to oppress Heimlich in order to suppress his ability to petition the government for redress. These actions illustrate that the prosecution of Heimlich was indeed malicious, was an abuse of process, and an obstruction of justice. Heimlich files this 42 U.S.C. 1985 claim, in part, under Texas law as a tort action for abuse of process.

6.0

MALICIOUS PROSECUTION

 

6.1.                      Heimlich files this 42 U.S.C.1983 claim, in part, under Texas law as an action for malicious prosecution.

6.2.                      Malicious prosecution claims require proof of the following elements:

                                                             i.      the institution or continuation of proceedings against the party;

                                                          ii.      by or at the insistence of the opposing party;

                                                        iii.      malice in the commencement of the proceeding;

                                                        iv.      lack of probable cause for the proceeding;

                                                           v.      termination of the proceeding in plaintiffs favor; and

                                                        vi.      special damages.

 

6.3.                      Harris County, through its agents, Boone and Ojeman, instituted and Prosecuted a criminal action and investigation against Heimlich. But for Boone and Ojeman’s conduct during the investigative stage of this proceeding and before the Magistrate Heimlich would never have been indicted.

6.4.                      Harris County, through its agents, Boone and Ojeman, acted with malice towards Heimlich. They acted with reckless disregard of the rights of Heimlich and in a wanton and willful fashion. Their conduct was knowingly done and was unreasonable under the circumstances. They were indifferent as to the injury they were inflicting upon Heimlich

6.5.                      No probable cause existed for the prosecution of the criminal action against Heimlich or the indictment of Heimlich.

6.6.                      The criminal case was terminated in Heimlich's favor. The Order of the Fourteenth Court of Appeals will be binding in this case on this issue.

6.7.                      The special injury requirement for malicious prosecution must be in the form of some physical interference with a patty's person or property in the form of an arrest, attachment, injunction or sequestration. Attachment was made to Heimlich’s bank account, his property was sequestered, and after Heimlich was indicted, he was arrested and later confined for five months.

7.0
42 U.S.C.1983

7.1.                      As a result of their concerted unlawful and malicious prosecution of Heimlich, Defendants intentionally, or with deliberate indifference and callous disregard of Heimlich’s rights, deprived Heimlich of his right to equal protection of the laws and impeded the due process of justice, in violation of the fourteenth Amendment of the Constitution of the United States and 42 U.S.C. & 1983.

7.2.                      Further, Defendants’ approval of investigator Ojeman’s and Boone’s seizure of Heimlich’s bank account constitute a violation of the Fourth Amendment of the Constitution of the United States and 42 U.S.C. & 1983.

7.3.                      Acting under color of law and pursuant to official policy or a persistent and widespread practice, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom, Defendant DA Holmes and Assistant DA Rosenthal knowingly, recklessly, or with deliberate indifference and callous disregard of Heimlich’s rights failed to instruct, supervise, control and discipline on a continuing basis Assistant DA Boone and Investigator Ojeman in their duties to refrain from unlawfully and maliciously harassing and prosecuting a citizen who was acting in accordance with his constitutional and statutory rights, privileges, and immunities.

7.4.                      Acting under color of law and pursuant to official policy or a persistent and widespread practice, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom, Defendant DA Holmes and Assistant DA Rosenthal knowingly, recklessly, or with deliberate indifference and callous disregard of Heimlichs’ rights, failed to instruct, supervise, control and discipline on a continuing basis ADA Boone in his duties to refrain from unlawfully and falsely arresting and imprisoning a citizen who was acting in accordance with her constitutional and statutory rights, privileges and immunities.

7.5.                      Acting under color of law and pursuant to official policy or a persistent and widespread practice, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom, District Attorney Johnny Holmes and Supervising Assistant District Attorney Rosenthal knowingly, recklessly, or with deliberate indifference and callous disregard of Heimlich's rights, failed to instruct, supervise, control and discipline on a continuing basis Boone and/or Ojeman in their duties to refrain from unlawfully, maliciously, wantonly and oppressively seizing the private property of citizens.

 

Evidence of these alleged customs and practices of the DA in Harris County is clearly evident by the uncontovertable facts of law, evidence, and the transcript of the trial  of cause No. 674066 in the 248th District Criminal Court of Harris County.

8.0

ABUSE OF PROCESS

 

8.1                         Heimlich files this 42 U.S.C.1985 claim, in part, under Texas law as an action for abuse of process.

8.2                         Abuse of Process claims require proof of the following elements:

                                                             i.      the use of process

                                                          ii.      the existence of an ulterior motive

                                                        iii.      a misuse of the process in question

                                                        iv.      injury or damage resulting from defendant’s conduct

8.3                         Heimlich seeks redress in this court on the ground that he has been denied, in the Courts of the State of Texas, and particularly in the District Court for the County of Harris, rights guaranteed and secured to him under the Sixth Amendment to the United States Constitution which states:

8.4                         “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with witnesses against him; to have compulsory process for obtaining witnesses in his favor and to have the assistance of Counsel for his defense.”

8.5                         These rights are further remunerated in the Texas Constitution, Article 1 entitled “Bill of Rights”, Section 10. AND;

8.6                         Article 2.03 of the Texas Code of Criminal Procedure provides:    

“It is the duty of the trial court, the attorney representing the accused, the attorney representing the state and all peace officers to so conduct themselves as to insure a fair trial for both the state and the defendant, not impair the presumption of innocence, and at the same time afford the public the benefits of a free press.”

 

8.7                         Art. 2.01 of the Texas Code of Criminal Procedures provides:

 

“It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.”

 

9.0

CONSPIRACY

TITLE 42 U.S.C. 1985

 

9.1                         Acting under color of law and pursuant to official policy or a persistent and widespread practice, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom, Supervising Assistant District Attorney Rosenthal knowingly, recklessly, or with deliberate indifference and callous disregard of Heimlich’s rights, conspired with Boone and Ojeman to violate the rights, privileges and immunities guaranteed to Heimlich by the Constitution and laws of the United States and the State of Texas.

9.2                         Acting under color of law and pursuant to official policy or a persistent and widespread practice, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom, DA Holmes and Supervising Assistant District Attorney Rosenthal knowingly, recklessly, or with deliberate indifference and callous disregard of Heimlich’s rights, failed to instruct, supervise, control and discipline on a continuing basis Boone and/or Ojeman in his duties to refrain from otherwise depriving Heimlich of his constitutional and statutory rights, privileges, and immunities.

9.3                         Beginning in 1993, and continuing through this day, in the County of Harris, State of Texas, the defendants, in violation of Title 42 USC 1985(2), did conspire and agree between themselves and with other person or persons, for the purpose of impeding, hindering, obstructing, or defeating the due course of justice in the State of Texas, and with intent to deny to Heimlich Edmund Heimlich his rights under the Constitution and laws of the United States.

9.4                         In furtherance of the objective of said conspiracy, one or more of said defendants did do or cause to be done the acts set forth in this complaint and, in violation of Title 42, USC 1985, did thereby injure Heimlich in his person and deprive him of having and exercising his rights and privileges under the Constitution and laws of the United States and the Constitution and laws of the State of Texas as set forth in this complaint to Heimlich’s detriment in an amount within the jurisdictional limits of the court.

9.5                         Evidence of these alleged customs and practices of the DA in Harris County is clearly evident by the uncontovertable facts of law, evidence, and the transcript of the trial  of cause No. 674066 in the 248th District Criminal Court of Harris County.

 

10.0

NEGLECT TO PREVENT

TITLE 42 U.S.C. 1986

 

10.1         DA Holmes and Assistant District Attorney Rosenthal knew or, had they diligently exercised his duties to 'instruct, supervise, control, and discipline on a continuing basis, should have known that the wrongs conspired to be done, as heretofore alleged, were about to be committed. DA Holmes and Supervising Assistant District Attorney Rosenthal had power to prevent or aid in preventing the commission of said wrongs, could have done so by reasonable diligence, and knowingly, recklessly, or with deliberate indifference and callous disregard of Heimlich’s rights failed or refused to do so. Furthermore, Rosenthal, directly or indirectly, under color of law, approved or ratified the unlawful, deliberate, malicious, reckless, and wanton conduct of Boone and Ojeman heretofore described.

10.2         Because making and securing warrants for the seizure of property is a crucial component in the daily activities of the Harris County District Attorney’s Office ("HCDA OFFICE"), the need for training in these areas is obvious. On information and belief, DA Holmes and Supervising Assistant District Attorney Rosenthal gave little or no direction relating to the proper use of affidavits and the issuance of warrants. Prosecutors and Investigators were discouraged from seeking out supplementary training courses; background checks of prospective prosecutors and investigators were deficient; discipline was handed out haphazardly, inconsistently, and infrequently; there had been requests to improve training and organization; and there were warnings that if the instruction, training, supervision, and discipline situation did not improve, the consequences would be serious.

10.3         As the ‘number two man’ in the District Attorney’s office the actions or failures to act, set forth in ¶¶ 4.1-4.20 and 5.1-5.6 above, were personal because he has the responsibility to prevent the abuses described herein.

10.4         Further, inadequate training in these areas is almost certain to result in violations of constitutional rights and has caused widespread, persistent instances of misconduct and incompetence on the part of HCDA personnel. As a result, authorization of and adoption of an inadequate training program and procedures in these areas amounts to a deliberate indifference on the part of DA Holmes and Assistant District Attorney Rosenthal to the safety of citizens and the people with whom the HCDA personnel come into contact.

10.5         In spite of the fact that defendants knew, or should have known, of the fact that this pattern of conduct was being carried out by their agents and employees, the Harris County District Attorney’s office, defendant Johnny Holmes, and the other defendants, have taken no step or effort to order a halt to this course of conduct, to make redress to these Heimlichs or other citizens injured thereby, or to take any disciplinary action whatever against any of their employees or agents.

10.6         Defendants have in fact praised themselves and commended their agents and employees. Such praise having the effect of encouraging their agents and employees to continue this pattern of conduct.

10.7         As a result of the actions of the defendants Heimlich was subjected to an assault and battery, false arrest, false imprisonment, illegal search and seizure, excessive use of force, deprivation of liberty and property, invasion of privacy , and serious mental anguish and emotional pain and suffering. Defendant County, as a matter of policy and practice, has failed to properly train it’s police officers and assistant district attorneys, including the defendants, with respect to constitutional, statutory, and departmental limits of their authority.

10.8         Defendant State of Texas, as a matter of policy and practice, has failed to properly train its judicial officers and agents of the courts.

 

Evidence of these alleged customs and practices of the DA in Harris County is clearly evident by the uncontovertable facts of law, evidence, and the transcript of the trial  of cause No. 674066 in the 248th District Criminal Court of Harris County.

 

11.0

SELECTIVE AND DISCRIMINATORY PROSECUTION

11.1         Under the peculiar circumstances of this case, the filing of this charge against Mr. Heimlich constitutes selective and discriminatory enforcement of and prosecution under the penal law of the state of Texas. The act of theft for which he was charged was nothing more than placing a stop pay on a check. The very act for which Mr. Heimlich has been criminally charged is engaged in on a repeated and daily basis throughout the city of Houston to the knowledge of the city’s law enforcement agencies and prosecutorial departments. However; no other criminal prosecutions have been undertaken, save this one.

11.2         Arbitrary, selective and discriminatory enforcement or prosecution under the penal law is an unconstitutional abridgment of an accused’s Fourth and Fourteenth Amendment right to due process and equal protection under the laws.

11.3         The Due Process and Equal Protection Clauses of the Fourteenth Amendment prevent the State from singling out a person or class of persons for purposeful and intentional prosecution in bad faith.

11.4         Here, the prosecution is improperly and unconstitutionally selectively, arbitrarily and invidiously discriminating between Mr. Heimlich and those hordes of others committing, on a daily basis, the very act for which Mr. Heimlich has been criminally charged. The decision to charge Mr. Heimlich was wholly without legal foundation.

11.5        The instant case is a palpable and classic instance of selective and discriminatory enforcement of and prosecution under the laws.

12.0

MALICE AND IMPROPER MOTIVE

 

12.1         It is apparent to any objective party reviewing the following events that the District Attorney’s office motive was to oppress Heimlich in order to punish him form his calls to the very agencies citizens expect are there to protect us. It is ludicrous to think a thief, or person with bad intent, would call the highest law enforcement agency in the nation, the Department of Justice, for advice while in the commission of a felony. Heimlichs’ request for protection from the unlawful acts of Boone only served to make him a target of official oppression. The purpose, the motive, behind Defendants actions was to suppress Heimlich’s ability to petition the government for redress. Defendant’s have succeeding in doing so for the past seven (7) years. These actions illustrate that the seizure of Heimlich’s property and the indictment and prosecution that followed was indeed malicious and the motive improper.

12.2         Further; Harris County, by and through DA Holmes, Assistant District Attorney Rosenthal, ADA John Boone, and Investigator Ojeman individually, have with specific malicious intent, libeled and persecuted Heimlich for attempting to petition the government for change and protest their mistreatment.

12.3         This persecution has continued through this day with the aid of the State of Texas and gives cause for Heimlich to name the State of Texas as Defendant.

12.4         During the Christmas holiday Heimlich was watching Channel 11 KHOU, a major television broadcaster in the Houston, Texas region. The leading story was the “Texas Sex Offenders Database” mandated by Texas House Bill 1176 that allows citizens to utilize the internet to search conviction records held by the Texas Department of Public Safety. Heimlich went to the channel 11 website and directed, followed the links to the Texas Department of Public Safety, and for $3.50 found himself listed as a convicted felon. This is over 9 months after the Court of Appeals acquitted him of the unjust charges to which he had been subjected to over 7 years before. Any employer, any prospective business partner, any prospective mate can, for $3.50 be told by whom that assume to be a legitimate authority, that Heimlich is a convicted felon. Heimlich joins the State of Texas as Defendant in the defamation of his character. See Exhibit S.       

12.5         This conduct has caused much of the Heimlichs’ mental anguish.

12.6         For the reasons expressed in ¶¶ above, Defendants’ conduct constitutes intentional infliction of emotional distress to Heimlich and request exemplary and punitive damages in addition to compensatory damages and all further relief available.

13.0

DAMAGES

13.1         Plaitiff Heimlich incorporates the foregoing and incorporates same by reference herein.

13.2         The pattern of activity of the Defendants was intended to cause Heimlich economic and emotional distress. Defendants conduct was extreme and outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, as to be regarded as atrocious and utterly intolerable in a civilized community. In particular, the Defendant’s conduct was outrageous because of the misuse of public trust and public funds in their activities.

13.3         Heimlich was accused by lies and convicted with false testimony of criminal intent, has had his property searched and seized, his business and professional career maligned and destroyed, his reputation impugned irrevocably. In particular, the Defendant’s conduct was the direct and proximate cause of severe disappointment, indignation, wounded pride, shame, despair, and public humiliation.

13.4         As a direct and proximate result of Defendant’s actions Heimlich suffered severe humiliation, embarrassment, fear, frustration and general intense mental anguish, and in all reasonable likelihood will continue to do so for a long time into the future and for the balance of his natural life.

13.5         As a direct and proximate result of the aforesaid acts of the defendants, and each of them, Edmund Heimlich suffered tremendous emotional turmoil and great mental anguish, from then until now, and he will continue so to suffer in the future; and he has lost and will in the future lose large sums of money by reason of having been greatly humiliated and held up to public scorn and derision as a result of the foregoing acts f the defendants.

13.6         Heimlich was forced to incur substantial obligations for attorney’s fees, court reporter’s fees, investigation expenses, and other expenses in the defense of himself against the unfounded and unwarranted prosecution by the defendants, which have been a serious burden to him.

13.7         All of the foregoing actions and failures to act by Defendants have resulted in serious emotional distress to Heimlich in connection with the deprivation of his constitutional and statutory rights guaranteed by the First, Fourth, Fifth, Sixth, and Fourteenth Amendments to; the Constitution of the United States and protected by 42 U.S.C. §1983, 42 U.S.C. §1985, and 42 U.S.C. §1986.

13.8         Heimlich also seeks an award of special damages that, as a proximate result of the acts of defendants, Heimlich suffered damages to his property and business in the course of his arrest and prosecution amounting to unspecified damages and that Heimlich, by the lose of his professional license and reputation suffered loss of earnings amounting to unspecified damages.

13.9         Heimlich sustained injuries and as a result of his injuries he should be compensated for each and all of the following elements of damage, both in the past and those which in reasonable probability he will sustain into the future:

a.     Physical pain and mental anguish;

b.     Emotional distress;

c.     Shame and embarrassment;

d.     Humiliation;

e.     Lost business and professional reputation;

f.      Lost wages, benefits, profits and economic opportunities;

g.     Medical expenses;

h.     Lost personal financial resources; and

i.       Unnecessary legal fees for criminal defense.

13.10     Additionally, Heimlich requests that this Court award his reasonable and necessary attorney's fees incurred in the investigating, filing and prosecution of this suit as permitted by 42 U.S.C. § 1983.

13.11     Plaintiff demands judgment against all Defendants jointly and severally, for the compensatory damages listed above and further demand judgment against each of said Defendants jointly and severally, for punitive damages in the amount of $ 5 million.

13.12     The law also entitles Plaintiffs to recover pre-judgment interest on the amount outstanding and post judgment interest on any judgment at the highest rate allowed by law.

 

Plaintiff hereby demands a jury to hear the facts of his case.

                                                             

 

 

 

14.0

PRAYER

 

WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully pray that the Court order Defendants, The State of Texas, Harris County, District Attorney Johnny Holmes, Assistant Attorney Charles “Chuck” Rosenthal, Assistant District Attorney John Boone, and Investigator Milton Ojeman to appear and answer in this case, and that, upon final hearing, Plaintiffs have judgment against Defendants for the following relief:

 

(1)  Actual damages in an amount exceeding the minimum jurisdictional limits of this Court;

 

(2)  Special damages, as set forth in this complaint, in an amount exceeding the minimum jurisdictional limits of this Court;

 

(3)  Pre-judgment interest at the maximum rate allowed by law;

 

(4)  Punitive damages in an amount exceeding the minimum jurisdictional limits of this Court;

 

(5)  Exemplary damages in an amount exceeding the minimum jurisdictional limits of this Court;

 

(6)  All costs of Court;

 

(7)  Post-judgment interest at the maximum legal rate from the date of judgment until paid;

 

(8)  Attorneys' fees; and

 

(9)  Such other and further relief, at law and in equity, to which Plaintiffs may show themselves justly entitled.

         

                                      Respectfully Submitted;