In the September 25, 2000 federal court battle of Caryl Leventhal v. Janet Reno (99CIV.10405), Eric B. Fisher, Assistant US Attorney makes motion to suppress evidence of USDOJ inaction and support of terrorist friendly Corruption within the US Department of Justice Immigration and Naturalization Service.  Eric Fisher Attempts to keep jury from hearing facts in case in spite of safety to Americans.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

                                                                     99CIV.10405 (SAC)

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CARYL B. LEVENTHAL,

Plaintiff,

- against -

HON. JANET RENO, Attorney General

of the United States,

Defendant

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Defendant respectfully submits this memorandum of law in support of its motion to preclude any evidence at trial relating to (i) alleged threatening telephone calls to plaintiff and her husband and (ii) and alleged exacerbation of plaintiff' a multiple sclerosis as a result of alleged workplace harassment.

In this case, plaintiff claims that during her ten months of employment with the Immigration and Naturalization Service (the INS or defendant), she was discriminated against on account of her race, religion and disability. 

NOTE: This is absolutely incorrect. Plaintiff claims that not only was she discriminated against on account of her race, religion and disability but subsequently and throughout the Administrative Complaint Process (September 1996 - June 1999).  Plaintiff has repeated complained via Certified Mail to INS/EEO that she was being discriminated in a cover-up involving discrimination because of the nature of her complaint which involved her attempting to stop rampant corruption. She was a whistleblower to this allegation.  This involved the wholesale selling of Green Cards and processing visas without proper background checks.  It was further reiterated via Certified Mail to USEEOC Judge William Michael McCauley in numerous correspondences between March 20, 1998 and May 7, 1998. Via Certified mail, it is reaffirmed again to Mark Gross, USDOJ Adjudicator between May 21, 1998 and June 28, 1998. Thus, plaintiff alleges continuing discrimination from May 1995 through June 1998. In the testimony of Michael Leventhal, plaintiff's legal representative from September 1996 through June 1999, he clearly states on page 53 line 10-11 that [The Admin Process] "It is rigged. It only works if they want it to work."

Defendant anticipates that, at trial, plaintiff will seek to introduce evidence about an alleged telephone call in which she and her husband were threatened by an unidentified male caller, and other telephone calls that resulted in "hang-ups." As explained below, pursuant to Fed. R. Evid, 4011, 402 and 403, this Court should preclude evidence about such calls.

NOTE: The US Attorney will now attempt to make it seem as if nothing at all happened between plaintiff's termination without warning (and when she was critically ill) on August 8, 1996 and the April 26, 1998 recorded death threat. This is not true. The Admin Process page of www.Justice-Denied.net is replete with references to numerous Certified correspondences (in plaintiff's possession and in the possession of Eric Fisher, the lying US Attorney). These letters, written by plaintiff's designated legal representative Michael Leventhal, reveal a frequently claimed continuing battle to overcome obstructionism and coverup on the part of INS/EEO. In point of fact, when plaintiff and her husband received and recorded the anti-Semitic death threat, they were in a legal conflict with the Immigration and Naturalization Service in the court of the Hon. William Michael McCauley, USEEOC Administrative Law Judge.

According to plaintiff's husband, on April 26, 1998 -- more than twenty months after plaintiff was terminated from INS -- the following message was recorded on plaintiff's answering machine: "You don't know when to give up, you fucking Jew. You and your loony wife, we are going to get you Nazi style. "Michael Leventhal Tr. at 16:9-11. (Relevant excerpts from the deposition of Michael Leventhal are attached as Exhibit A to the Declaration of AUSA Eric Fisher ("Fisher Declaration)). Defendant expects plaintiff to contend at trial that the unidentified caller, who allegedly left the above message, called at the behest of an INS employee.

Defendant also expects that plaintiff will seek to introduce evidence of other telephone calls that resulted in hang-ups or during which plaintiff's husband claims to have heard "grunting." Id. at 17:6-18:2. Plaintiff likely will contend that these telephone calls also were made by INS employees or their agents.

There is no reliable evidence establishing any connection whatsoever between the above alleged telephone calls and the defendant. At his deposition, plaintiff's husband conceded, that his attribution of the April 26,1998 telephone call to "jerky friends" of plaintiff's former supervisors was "purely speculation."

NOTE: In Mr. Leventhal's deposition, (Pages 18 line 1 to 20 line 8) he uses "Speculation" in lieu of definite proof. Obviously, the recorded death threat did not begin by someone saying "Hi, I'm from the US Department of Justice.  You don't know when to quit, you fucking Jew... we're going to get you Nazi style."  But the call to their unlisted number did come in while the case was being reviewed by a USEEO Judge.

NOTE: You are now going to read another Eric Fisher US Attorney lie. This man couldn't tell the truth if he was staring G-d in the face. When Mr. Leventhal (plaintiff's husband) says "could have been [from] telemarketers" he is referencing the crank calls that began on July 11, 2000. This was the day before Brenda Grant was to give her deposition. On this day, Caryl Leventhal (plaintiff) received some seventeen hang-ups. It bears no relevance to the period of sadistic calls to her beginning in October 1997 during the Administrative Complaint process and continuing for months. It had the plaintiff so upset that Mr. Leventhal had to have a professional burglar alarm system installed in their apartment.  From late April 1998 when the Leventhal's received their death threat and were rebuffed by the INS Regional Counsel, to this very day... plaintiff has been haunted by fears of being killed.  She frequently tells her husband that she feels as if she is on "Death Row, awaiting execution."  She is fearful of leaving the house without her dog Lula (a half Rotweiler half Doberman).  And she can't get to sleep without her evening check:  Michael, is the door locked?  Michael, is the alarm on?  Michael, where's the dog?  Michael, are the trigger locks off the guns? All this because the USDOJ intentionally turned their back on her and made plaintiff feel as if they preferred her death.

Id. At 18:3-5. Plaintiff's husband identified the caller as purportedly having a "Bensonhurst Brooklyn" accent, but provided no additional identifying information Id. At 19:22-20:2. Plaintiff has posted a copy of a letter to INS's Regional Counsel Lawrence Zieff on the website, in which plaintiff's husband states: "I have no proof of who called because a quick *69 revealed that the call number was blocked." Fisher Dec., Exh. B. Plaintiff's husband also admitted that as far as he knew, the other calls, which resulted in hang-ups or grunting, "could have been [from] telemarketers." Michael Leventhal Tr. At 15:25-16:3. Furthermore, at the depositions of the INS witnesses, plaintiff's counsel did not inquire into any alleged connection between the above telephone calls and the INS.

When plaintiff's husband reported the alleged telephone calls to INS Regional Counsel Lawrence Zieff, Mr. Zieff told him that the INS does not "sanction this type of behavior." Id. at 16:20-23. Plaintiff's husband claims that the telephone calls stopped soon after he told Mr. Zieff: "Larry, I know what these people are thinking, middle age, urban, Jewish, punkie, but you better get on the horn to 26 Federal Plaza and stop them from upsetting my wife because if they go any further and get within legal range, I am going to shoot them." Id. at 16:23-17:5.

Any evidence about the alleged telephone calls to the Leventhals should be precluded as irrelevant and as heresay. There is no evidence linking the alleged telephone calls to defendant. Thus, they are "not logically probative of same matter to be proved" at trial. Weinstein's Federal Evidence, Second Edition (2000) 402.021]. The claim that plaintiff received harassing telephone calls from an unknown caller (or callers) more than twenty months after her termination from the INS has no bearing whatsoever on her claims of workplace discrimination. Accordingly, testimony about the alleged telephone calls should be precluded pursuant to Fed. R. Evid. 401 and 402, See e.g. Fox v. City Univ. of New York 1998 WL 283284, at *1 (S.D.N.Y. June 2, 1998) (granting motion in limine to preclude testimony about co-mingling of funds by employer as irrelevant to race discrimination claims.)

NOTE: The intimidating crank calls and death threat are not "irrelevant and here say" as claimed by the callous and lying Eric Fisher, Assistant US Attorney. This man is undermining the safety of America.  We have it on tape and Eric B. Fisher, Esq. has a copy.  Why is he placing America at risk?

In any event, even assuming arguendo the relevance of testimony about the telephone calls, such testimony still should be precluded because any probative value is substantially outweighed by the danger of unfair prejudice to the INS. Fed. R. Evid. 403. The hateful and vulgar language of the alleged telephone call is highly prejudicial, and there is no credible evidence linking it to an INS employee. See United States v. Tracy, 12 F.3d 1186, 1195 (2d Cir.1993) (when testimony about death threats is admitted, the "potential for inflaming the jury may be great") (citations omitted). Thus, even if testimony about the telephone calls were found to be probative of some fact of consequence to this case which it is not -- the testimony still should not be permitted. See Fed. R Evid. 403; Agron v. Trustees of Columbia Univ., 1997 WL 837187, at *4 (S.D.N.Y. Dec. 10, 1997) ("precluding testimony in employment discrimination case because Aeven if the [evidence] were of marginal relevance, the danger of unfair prejudice to [d]efendant substantially outweights its probative value"); Union Carbide Corp. v. Montell N.Y.: 28 F. Supp. 2d 833,838 (S.D.N.Y. 1998) (granting motion in limine to preclude evidence because "prejudice and confusion that would result from the admission of this evidence, which is only of the slightest relevance, outweighs its probative value")

NOTE: This is incredible. Such is the scorn of Eric Fisher, lying US Attorney that he feels a brutally sadistic Immigration and Naturalization Service and their legal department is above having their feet held to the fire of truth. And in a final insult to the people of America and the jury system, Eric Fisher makes a motion to exclude this information from the jury on the grounds that it would cause them "prejudice and confusion." Such is the contempt the US Attorney's Office has for our wonderful judicial system that he feels jurors are stupid and unworthy of hearing the facts of a case.

Defendant expects plaintiff to contend at trial that she suffered a "great exacerbation of her multiple sclerosis" as a consequence of workplace discrimination during her brief employment with the INS. See Complaint 66;69. Testimony or argument about any alleged exacerbation of multiple sclerosis ("MS") should be precluded because there is no medical evidence to support the contention and it is beyond the scope of proper lay testimony.

NOTE: Caryl Leventhal(s), plaintiff's medical condition and functioning in May 1995 was as follows: (1) She hadn't had an exacerbation of Multiple Sclerosis since her first in 1992. (2) between 1992 and her brutalization while working at INS, she was declared in "Remission" by Dr. Pincus, Neurologist and Dr. Kam C. Poon, her family physician. In medical terms, this means symptoms had subsided to virtually disappeared. (3) During her employment in INS where she held a "white collar" position, she was brutally harassed and forced into being a warehouseman. She was constantly mistreated and treated like a pack mule, in spite of constant pleas that these actions could give her an exacerbation of Multiple Sclerosis. (4) In June 1996, her family physician had written a note to INS stating that she was under extreme stress (hypertension) and was in the beginnings of an "Acute Exacerbation of Multiple Sclerosis." (5) A June 28, 1996 MRI brain scan (reviewed by Mukul P. Maheshwari, M.D. Neurologist) confirmed that her MS damage had significantly spread. (6) An examination by Dr. Pincus (Neurologist) stated that a woman, previously with MS in "Remission" had: a. memory loss, b. fatigue, c. difficulty concentrating, d. unsteady gait, e. difficulty sleeping f. become stiff legged and g. suffers from probabe depression. You don't have to be a neurologist to read plain English on a medical report. Dr. Pincus' July 25, 1996 medical report to Dr. Poon no longer evaluated Caryl Leventhals condition as in "Remission." He seriously downgraded it to "Seems Stable." In the medical world, "stable," means not obviously in decline. Someone can be designated in "serious but stable" condition which is far from promising. It just means they they would probably live another day. The term "Seems Stable" is the ultimate hedge. It simply means that in Caryl Leventhal's situation, things had gotten significantly worse, and that the Doctor is wary about the future prognosis.

Plainiff has supplied a statement drafted by her husband and signed by Dr. Kam Poon, plaintiffs internist, which states that in plaintiff's case "a high level of stress is a contributing factor in exacerbating her multiple sclerosis." Dr. Kam Poon Tr. at 38;24-39:3. (A copy of the statement is attached to the Fisher Declaration as Exhibit C and excerpts from Dr. Poon's deposition are attached a Exhibit D.) However, at Dr. Poon's deposition, he conceded that, Dr. Martin Pincus, the only neurologist who examined plaintiff throughout the relevant period, consistently diagnosed her MS as "stable." Dr. Poon Tr. at 19:5-18; 29:23-30:1; 30:11- 16;33:11-13;35;7-9;40:13-23.

NOTE: Eric Fisher, lying US Attorney has done it again. Dr. Poon's medical statement was not "drafted" by plaintiff's husband. It came out of the Federal Rules of Evidence for the way an analysis is presented by an "Expert Witness." Mr. Leventhal typed out the form in accordance with the Rules of Federal Evidence and Dr. Poon filled in the facts. And his main fact was a feeling that in Caryl Leventhal's case, high levels of stress can exacerbate her Multiple Sclerosis.

Dr. Poon also testified that the sole basis for his purported conclusion that plaintiff suffered an exacerbation of`the MS June 1995 was that plaintiff's husband told him so. Id. at 39:6-40:6, Dr. Poon did not examine plaintiff in June 1995, and he has no knowledge

of any other doctor examining her at that time. Id. With respect to plaintiff's claim that her MS was exacerbated in June 1996, Dr. Poon testified that he thought plaintiff's condition was "pretty stable" at that time. Id. At 33:11-17.

NOTE: Dr. Poon is of Asian background with some English comprehension problems when pounded away at for an answer by the US Attorney. During Dr. Poon's deposition, Eric Fisher pounded away at him with the same question until the poor man would say anything, just to shut him up. Through Discovery, the US Attorney has a medical note from Dr. Poon dated June 12, 1996. This medical note states unequivocally, that according to his examination of that day, the plaintiff, Caryl Leventhal was suffering from "hypertension and an Acute Exacerbation of Multiple Sclerosis."

And after much prodding and incessant badgering by the US Attorney, Dr. Poon did use the term "pretty stable" to describe Caryl Leventhal's condition. This is because the US Attorney asked Dr. Poon to work off of scrap notes from his medical records of Caryl Leventhal that were incomplete. In these notes, the word "stable" was scribbled on the edge. This one word scribble was made some FOUR YEARS prior to the good doctor's deposition. During his deposition, Dr. Poon had to reach back to dim memories in order to fill in the blanks. Dr. Poon told Eric Fisher (testimony page 10 line 20) "I have thousands of patients." Had Dr. Poon been given the benefit of Ms. Leventhal's full records, including the Dr. Pincus neurological report, his reaction would have been much different. But for some reason (not that the lying US Attorney would attempt to "cook the books" in a deposition) the medical analysis from Dr. Pincus was never presented to Dr. Poon.

Dr. Poon is not certified in the Field of neurology. He conceded at his deposition that neurology is the relevant specialty with respect to MS. Id. at 40; 19-23. Aside from plaintiff, Dr. Poon could not recall any other patients who he has treated for MS. Id. at 13:6-21. Dr. Poon has never written an article or paper about MS; nor has he ever taught the subject. Id. at 8:16-18; 15:23-16:3. He claimed not to remember the titles of articles that he purportedly has read about possible links between stress and the exacerbation of MS. Id. at 42:6-14. Plaintiff's website states plainly that Dr. Poon "is not a trained specialist" in the area. of MS. Fisher Dec., Exh. E.

NOTE: Dr. Poon is the only physician who has tracked the plaintiff, Caryl Leventhal's history since 1992. Of all physicians, he has an empirical knowledge based on observation. The only other individual who has observed Ms. Leventhal's medical condition more closely is her husband, Michael Leventhal. But alas... he is a layman and therefore too stupid and incompetent to testify as to the day to day health and progress of the woman he has devoted his life to keeping healthy and protecting (that's sarcasm, folks). In fact, Michael Leventhal, someone who has devoted the last decade to reading medical journals and caring for the plaintiff that he loves, is probably the most expert on the progress of her Multiple Sclerosis.  And let's not forget that the Social Security Administration (the federal government) has declared Caryl Leventhal TOTALLY DISABLED as of June 8, 1996.

Because plaintiff has proffered no credible medical evidence to support her claim that alleged workplace harassment causing an exacerbation of her MS, she should be precluded from testifying at trial that there is causal link between the two. Lay testimony as to the connection between stress and MS should not be admitted. See, e.g. Henry v. A/S Ocean, 512 F.2d 401, 408 (2d Cir. 1975) (Affirming trial court's exclusion of lay testimony by plaintiff as to claimed causal, link between accident and medical condition); Collins v. American Export Lines, 165 F. Supp. 256, 259-260 (S.D.N.Y.1958) (excluding lay testimony by plaintiff about causation of injuries.)

Furthermore, if plaintiff is allowed to refer to an alleged "exacerbation of her multiple sclerosis," her testimony will unjustifiably assume the veneer of scientific credibility. Such testimony would mislead and confuse the jury, and should thus be precluded pursuant to Fed. R. Evid. 403.

NOTE: This is pure baloney. Most anybody with Multiple Sclerosis will tell you that it is THEY who know their body best. It is they, who first feel sinking into an exacerbation, not a doctor. And it is they who are most qualified to explain their condition at any particular time. Neurologists know this. They know that speaking with a patient along with MRI's are where the bulk of their diagnosis' spring from.