On August 26, 1996 at the sentencing proceeding of Edmond N. Gaudelli, Criminal No. 95-067, Judge D. Brooks Smith made the following statement, trial transcript, page 100:
Judge Smith ignores the perjury of a government witness. Such hypocrisy ill befits a federal judge who has sworn to judge impartially, see 28 U.S.C. § 453.
A judge like D. Brooks Smith contaminates everything and everyone with whom he comes in contact.
There is evidence that Federal Judge D. Brooks Smith is using his position as a federal district court judge to commit federal criminal offenses from the bench and act as an accessory after the fact for others committing related criminal acts.
In criminal case no. 95-067 Western District of Pennsylvania Edmond N. Gaudelli was charged in two counts of a multi-count indictment for "conspiracy" and "perjury" before the grand jury.
The government's "evidence" that Gaudelli committed perjury was a document allegedly signed by Gaudelli which was introduced at trial stating, "I paid commissions of $72,425.00 for the year 1985 to various people," known at trial as Government Exhibit 702, and "authenticated" by the government's star witness against Gaudelli, Milton Eisner. Whether the document was properly authenticated was a preliminary determination that was supposed to have been made by Judge Smith. United States v. Carriger, 592 F. 2d 312, 316 (6th Cir. 1979), Fed. R. Evid. 901 (a) advisory committee note.
It was later established by overwhelming forensic evidence (including a comparison of the alleged Gaudelli signature with other, legitimate Gaudelli signatures by internationally known graphologist Ann Mahoney) that the signature on Government Exhibit 702 was a forgery. Milton Eisner lied under oath.
I.e., defendant Edmond N. Gaudelli had been indicted and convicted on perjured testimony and a forged document.
These facts were brought to the attention of Judge D. Brooks Smith via a Motion For Bail Pending Appeal, Petition For Writ of Error Coram Nobis, and Motion to Convene a Grand Jury.
Judge D. Brooks Smith denied all three requests for relief stating,
ORDERED and DIRECTED that the said motions, docket no. 158, are DENIED.
BY THE COURT,
D. Brooks Smith
Judge Smith had spent pages denying a former motion for bail when the prosecution was in a more favorable legal position.
Judge Smith uses his authority to participate in criminal conduct which constitutes "conduct prejudicial to the effective and expeditious administration of the business of the courts."
First, as the overwhelming evidence in case no. 95-067 demonstrates, government witness Milton Eisner committed perjury, a violation of 18 U.S.C. § 1621 and § 1623.
Second, this perjury may have been part of a conspiracy in violation of 18 U.S.C. § 241. The defendants in the case were Democrats, including Joe Moses, an influential member of the Democratic party that had been in power for sixty years in Allegheny County. The prosecution was initiated by Republicans. The elements of a conspiracy under 18 U.S.C. § 241 are outlined in United States v. Ellis, 595 F. 2d 154, 161-162 (3rd Cir. 1979).
Both Judge D. Brooks Smith and the prosecutor who submitted the tainted evidence, James Garrett, were brought face-to-face with the fact that the government's star witness, Milton Eisner, committed perjury at the grand jury "investigation" and at the trial of Ed Gaudelli.
The behavior of Judge Smith in this affair consists of the following federal crimes:
18 U.S.C. § 3 Accessory after the fact
Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.
18 U.S.C. § 4 Misprision of felony
Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined not more than $500 or imprisoned not more than three years, or both.
See also Levy v. Parker, 478 F. 2d 772, 805 (3rd Cir. 1973) (misprision of felony requires positive act of concealment).
Altering or fabricating documents used or to be used in a judicial proceeding would fall within the obstruction of justice statute if the intent is to deceive the court. United States v. Craft, 105 F. 3d 1123, 1128 (6th Cir. 1997) (citations omitted) (discussion of 18 U.S.C. § 1503).
There has been much made of "public confidence in the judiciary." See e.g., Shawer v. Indiana University of Pennsylvania, 602 F. 2d 1161, 1165 (3rd Cir. 1979). Words like, "When somebody chooses to squish the Bill of Rights into the mud," United States v. Baird, 109 F. 3d 856, 861 (3rd Cir. 1997), and "[I]mportant as it was that people should get justice, it was even more important that they should be made to feel and see that they were getting it," Kramer v. Scientific Control Corp., 534 F. 2d 1085, 1088 (3rd Cir. 1976), make reassuring reading.
The problem is that when a judge acts as a common criminal, as in the case of Judge D. Brooks Smith, such words are rendered meaningless and the entire federal judiciary is held up to contempt.
This contempt will only deepen as federal judges and prosecutors go after corrupt state law enforcement personnel, see Baird, supra, while the federal courts themselves ignore crimes committed by their own.
Supposedly, an indictment based on perjured testimony cannot stand. United States v. Basurto, 497 F. 2d 781 (9th Cir. 1974).
Supposedly, judges are not above the law. United States v. Isaacs, 493 F. 2d 1124, 1143 (7th Cir. 1974).
In reality, an innocent man is imprisoned while federal judges commit crimes to keep him there. The defendant in this case brought this entire sordid affair to the attention of the Third Circuit Court of Appeals via an appeal of his Motion for Bail Pending Appeal.
Judge D. Brooks Smith had already contaminated the appeals court. In an order dated June 10, 1997 and signed by Walter K. Stapleton (whose scrambled signature indicates some serious medical problems) the cover-up continued. Judge Stapleton simply affirmed the lower court's Order.
Judge Stapleton had previously sat on the following cases with Judge D. Brooks Smith and had apparently formed a relationship with Judge Smith that caused him to acquiesce in his friend's criminal acts:
In re Graves, 33 F.3d 242 (3rd Cir. 1994)
Adams v. Trustees, N. J. Brewery Trust Fund, 29 F.3d 864 (3rd Cir. 1994).
It does not take a Nobel prize winner to figure out that there had to be an improper communication between Judge Smith and Judge Stapleton for this appeal to have been assigned to Judge Stapleton. There are thirteen (13) other judges to whom defendant Gaudelli's Motion could have been assigned. Hopefully the other Third Circuit judges have not been contaminated by Judge D. Brooks Smith as well.
What started out as perjury by a government witness now appears as a full-blown obstruction of justice conspiracy engaged in by at least two federal judges, a violation of 18 U.S.C. § 1503 and other criminal statutes.
Routine inquiries in the Pittsburgh area will reveal that Judge Smith is often contemptuously referred to by area attorneys as, "that little Nazi."
It is unfortunate that the federal judiciary is so inept at policing itself.
If federal judge D. Brooks Smith is not dealt with immediately (and severely) he will bring discredit upon the entire Third Circuit in particular and the federal judiciary in general.