Debtor

GLENN BARTON

Plaintiff,

vs.

GRAHAM E. BERRY

Defendant.

)

Case No.: No. LA 99-32264 ER

Adv. No: ADV 00-02817-ER

Honorable Ernest Robles

Ctrm. 1568

DEFENDANT’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO FILE MOTIONS UNDER SEAL AND TO CONTINUE THE TRIAL DATE.

Date: None

Time: None

Courtroom: None

Trial Date: January 28, 2002

Time: 10:00 a.m.

Place: Courtroom 1568

[Filed Concurrently With Notice of Lodging and Lodged Heads of Agreement]

)

COMES NOW Defendant Graham E. Berry and submits his opposition memorandum, supporting declaration and exhibit in opposition to plaintiff’s ex parte application to file a motion under seal to enforce a purported concluded settlement agreement and a motion to continue the trial date of January 28,2001 herein.

This Opposition is based upon the annexed Memorandum of Points and Authorities, the accompanying Declaration of Graham E.Berry, the Exhibits attached thereto and the tentative Heads of Agreement lodged separately herewith.

January 10, 2002

Respectfully Submitted,

_________________

Graham E. Berry

Debtor/Defendant

TABLE OF CONTENTS

MEMORANDUM OF POINTS AND AUTHORITIES……………………………………………..…4

I. INTRODUCTION……………………………………………………………………………………….4

II. PLAINTIFF’S COUNSEL CONTINUES TO MISLEAD THIS COURT……………………………..5

III. PLAINTIFF MISREPRESENTS FACTS IN REQUESTING TRIAL CONTINUANCE…………….7

IV. THE REQUESTED CONTINUANCE MAY PREJUDICE DEFENDANT………………………... 10

V. PLAINTIFFS PRINCIPAL AUTHORITY IS MISREPRESENTED…………………………………..11

VI. PLAINTIFFS BAD FAITH CLAIMS ARE MATERIAL MISREPRESENTATIONS………………14

VII. SEALED MOTIONS AND CLOSED HEARINGS -AN ATTEMPT TO OBSTRUCT JUSTICE.14

A. The First Amendment Grants The Public And Press A Right To Court Records………………………17

B. The Common Law Grants The Public And The Press A Right to Court Records ……………………. 18

C. Federal Rules Of Civil Procedure Grant Public And Press A Right To Court Records………………..20

VIII. CONCLUSION…………………………………………………………………….21

DECLARATION OF GRAHAM E. BERRY………………………………………….22

AUTHENTICATION OF EXHIBITS HERETO………………………………….….23

REQUEST FOR JUDICIAL NOTICE………………………………………………..26

REBUTTAL OF CERTAIN REPRESENTATIONS BY MOVANT PLAINTIFF…..26

EXHIBIT A…………………………………………………………………..………….30

EXHIBIT B……………………………………………………………………………...44

EXHIBIT C………………………………………………………………………………51

EXHIBIT D……………………………………………………………………………...53

EXHIBIT E………………………………………………………………………………59

EXHIBIT f…………………………………………………………………………….…95

[HEADS OF AGREEMENT LODGED SEPERATELY]

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Plaintiff’s pending Ex Parte Application herein, full of much wailing and gnashing over self-inflicted wounds and exposures, should receive no more consideration by the Court than would a plea for sympathy by Osama Bin Laden because he can no longer travel freely to the United States. See generally, attached supporting Declaration of Graham E. Berry (“Berry Dec.”) Exhibits E and F. Indeed, this comparison to Osama Bin Laden’s attack upon western democracies is well founded. Berry Dec. Exhibits E and F. Significantly, as recently as October 9, 2001, the Moxon & Kobrin law office, through Ava Paquette, Esq., wrote to a Netherlands resident threatening to enforce the Church of Scientology’s copyrights in connection with the very terms “Dead Agenting” and “Targets Defense” activities used by Moxon & Kobrin in their “investigations” and “handling” of regular opposing counsel such as I. The seditious contents of the “Targets Defense” document that the Moxon & Kobrin October 9, 2001, letter refers to include the Church of Scientology’s “vital targets” of,

“T1 Depopularizing the enemy to a point of total obliteration; T2 Taking over the control or allegiance of the heads or the proprietors of all news media; T3 Taking over the control or allegiance of key political figures; T4 Taking over the control or allegiance of those who monitor international finance and shifting them to a less precarious finance standard.” emphasis added

Berry Dec., Exhibit F, pages 105-106 [12-13]. (Note [_] herein refers to a docs. Internal page number.)

Indeed, “the Church of Scientology is America’s own Taliban.” Berry Dec., Exh. E, pp 78 [20] et seq. Significantly for the current proceedings, the available evidence herein now establishes that putative plaintiff Barton herein is no more than a pawn, puppet and shill of the Church of Scientology. For example, Berry Dec, paras.15 and 22. In addition to this fraud upon the Court, both the non-confidential and the confidential provisions of what was only a tentative

and provisional settlement herein are also at odds with both the Plaintiff’s allegations and claims for relief herein and the purposes and provisions of the Bankruptcy Code (11 U.S.C.). Clearly, Plaintiff and his attorney’s herein, are shills of the Church of Scientology that has perpetuated an attempted charade upon this Court as part of a demonstrable conspiracy to abuse process dating back to 1993. Berry Dec. Exhibit F, pp. 95 [1] et seq. Amended Defendant’s: (1) Response To Plaintiff’s Undisputed Facts: (2) Separate Statement of Genuine Issues; In Support of Defendant’s Opposition to Plaintiff’s Motion For Summary Judgment, etc., pages 42 to 83, filed July 6, 2001 (“Berry MSJ Opp. pp. _ ”). Moxon, Ingram and the Church of Scientology (through Lyn Farny) have all sworn declarations admitting their roles in the initiation of this “haunting” “investigation.” Berry Dec. Exhibit F, pp. 104 - 111 [13 - 18]. That and the following scorched earth litigation tactics intentionally perpetrated upon Defendant by Scientology and others including the Plaintiff and his counsel herein, is being increasingly recognized by the Courts as the type of conduct constituting the abuse of process and deprivatation of constitutional rights. See generally: Church of Scientology v. Wollersheim (1996) 42 Cal.App.4^th 628, 648-649 (approx.$500,000 costs order affirmed against Moxon & Kobrin); David Hechler, Arizona Jury Finds Allstate Liable For Abuse of Process, National Law Journal, October 15, 2001. http://biz.yahoo.com/law/011015/98663-5.html

II. PLAINTIFF’S COUNSEL CONTINUES TO MISLEAD THIS COURT

On or about June 8, 2001, Plaintiff filed an unsuccessful motion for summary judgment herein. Among other things, Defendant filed a Rebuttal Declaration on July 9, 2001 and a Post- Oral Argument Evidentiary Submission on July 11, 2001. Both documents contained evidence of

major material misrepresentations herein by Plaintiff’s counsel. On August 14, 2001 the Court filed and entered its Memorandum of Decision Re Plaintiff’s Motion for Summary Judgment. The Court denied Plaintiff’s motion “because of inaccuracies in the [Plaintiff’s] allegations and the existence of genuine issues of material fact.” Id. pp. 7: 5-8, 9:10-14.Significantly, California Rule of Professional Conduct Rule 5-200 provides that a California lawyer may use “such means

Only as are consistent with truth” and “[s] hall not intentionally seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law.” Similarly, California Business and Professions Code Section 6068 (d) (“the State Bar Act”) provides that an attorney shall “employ, for the purposes of maintaining the causes confided to him or her such means only as are consistent with truth and never to seek to mislead the judge by any or any judicial officer by an artifice or false statement of fact or law.” Furthermore, Title 18, U.S.C. Section 1001 makes it a crime to: (1) knowingly and willfully; (2) make any materially false, fictious or fraudulent statement or representation; (3) in any matter within the jurisdiction of the executive, legislative or judicial branch of the United States. See generally: United States v. Gaudin, 515 U.S. 506, 510 (1995); United States v. Yermian, 468 U.S. 63, 69 (1984). Clearly, this criminal statute has been violated herein. Plaintiff now continues a litany of “Material Misrepresentations to the Federal Government”, through this Court, in connection with his application for continuance of the trial date herein.

III. PLAINTIFF MISREPRESENTS FACTS IN REQUESTING TRIAL CONTINUANCE.

Throughout this litigation Plaintiff has repeatedly castigated Defendant for suggesting that this is other than a simple brief matter requiring the briefest of trials, only several witnesses

and a mere handful of documents. Logically, as alleged by Plaintiff, such a simple brief proceeding should require little or minimal preparation by any trial counsel. Particularly, as here, where the matter is a non-jury (bench) trial before a Court which has handled all aspects of the proceedings and an extensively briefed motion for summary judgment. It is therefore fallacious for Plaintiff to now claim that a trial continuance is required (three weeks before trial) because she “suspended all preparations for trial” over eight weeks before trial. Plaintiff’s pending Ex Parte Application 4., p 3:3-6; supporting memorandum p.2: 14-16; Paquette sworn declaration, para.6, p.2: 12-16.

In addition, Plaintiff’s counsel swears that “ Mr. Moxon of Moxon & Kobrin was to try this matter. Likewise, under the belief that this matter had settled, he calendared another matter for that time period and will not be available until April 2002 or thereafter.” Paquette Dec. para 7 (pp.2: 17-20). See also, Plaintiff’s pending Ex Parte Application 4., p 3:6-9; supporting memorandum p.2: 17-21. However, Plaintiff’s counsel is either lying to the Court or she has fatally ignored the applicable rules of procedure which include the F.R.Civ.P. and the local Central District Court Rules. Local Bankruptcy Rule 1002-3 (1). Significantly, and to the best of Defendant’s recollection, Mr.Moxon has not participated in any of the Status Conferences or Pre-Trial Conferences herein. Berry Dec. para.21; Local Bankruptcy Rule 7016-1(a)(1); Local Central District Rules 6.9.1 and 9.9.Moreover, Mr.Moxon is one of the central participants of the

seven year saga of demonstrable R.I.C.O. conduct herein. See generally, Berry Dec., Exhibits A, B, D, E and F. At all material times he has been listed as a material witness herein. See: Berry MSJ Opp. Pp.41-83; Berry Dec.herein, Exh. pp 95-163 [2-70]; Berry Dec., para..20. In addition, he has numerous non-waivable multiple layers of conflicts of interest which fall within the supervisory ambit and jurisdiction of the Court as part of it’s duty to ensure the doing of justice according to the proper application of law and equity. See generally: 11 U.S.C.§ 105 (a); Berry Dec: paras.12, 13; Exh. A, pp. 40-41[11-12]; Exh. D; Exh. F, p. 117 [24], pp 120-121 [27-28], 149 [56]. See generally, California Rules of Professional Rules 3-210 (prohibited objectives of employment), 300-300 (avoiding interests adverse to a client), 300-310 (avoiding the representation of adverse interests), 5-210 (member as witness). Moxon should not, and as a matter of law cannot, use client and/or party representation as an “artifice” to defeat the express and applicable provisions of law.

Plaintiff’s counsel blatantly and materially misrepresents the actual written record in these proceedings. This is even more egregious having occurred after the filing and service of the Court’s Memorandum of Decision Re Plaintiff’s Motion for Summary Judgment entered August 14,2001 denying Plaintiff’s motion “because of inaccuracies in the [Plaintiff’s] allegations and the existence of genuine issues of material fact” (Id. pp. 7: 5-8, 9:10-14).

Plaintiff’s counsel swears, under penalty of perjury, that a trial continuance is now required (three weeks before trial) because she “suspended all preparations for trial” over eight weeks before trial. Plaintiff’s pending Ex Parte Application 4., p 3:3-6; supporting memorandum p.2: 14-16; Paquette sworn declaration, para.6, p.2: 12-16. However, in a letter dated December

12, 2001 from Ava Paquette to Graham E. Berry, Plaintiff’s counsel states her intention to anticipatorily repudiate the provisional Heads of Agreement and states, in pertinent part:

notice to the Court that trial of this matter shall go forward as scheduled on January 28, 2002.” Emphasis added.

Berry Dec. Exhibit C hereto.

Subsequently, and in a letter dated December 14, 2001 from Graham E. Berry to Ava Paquette, Defendant accepted Ms. Paquette’s anticipatory repudiation of the provisional but uncompleted settlement and settlement process. The letter also dealt with Plaintiff’s amazing claims that it is Defendant who has acted in “bad faith” in these various matters. It merely states facts and contentions. The letter also requested Plaintiff to provide a copy of the letter to the Court when Plaintiff gave “notice to the Court that trial of this matter shall go forward as scheduled on January 28, 2002.” Berry Dec., Exhibit D hereto.

Following Plaintiff’s written representation that “trial of this matter shall go forward as scheduled on January 28, 2002” Plaintiff did nothing for three weeks until the pending Ex Parte application was filed on January 7, 2002. If the facts were other than represented by Plaintiff in the December 12, 2001 letter then the applicable Ex Parte rules required a motion to be made immediately. In fact, the fatal passage of time has been such that Plaintiff could have had an ordinary motion filed, heard and determined in the intervening period.

Tellingly, nearly two weeks after the break-down of the settlement process herein, and the parties mutual repudiation and rescission (Berry Dec. Exhibits C, D), Plaintiff gave notice of an

Ex Parte application to simply continue the trial date herein because “on November 28,2001 she had suspended her preparation for trial herein, had lost the subsequent three weeks in which she could have been continuing to prepare for trial herein and thus was unable to prepare this case for trial in the five to six weeks remaining before the trial date of January 28, 2002 herein.” Berry Dec., para.17. Again, plaintiff fatally did nothing and failed to act expeditiously and at the first available opportunity. On January 2, 2002, Plaintiff telephoned Defendant and gave notice of another Ex Parte Application herein. Plaintiff stated it was to continue the trial date and to enforce the settlement agreement. No further information, or filing information was given. On January 8, 2002 Defendant received the pending Ex Parte Application by mail. Berry Dec. para.18.

IV. THE REQUESTED CONTINUANCE MAY PREJUDICE DEFENDANT

One of the only witnesses Defendant has been permitted to call at trial herein is Ms. Jane Scott. Ms. Scott has advised Defendant that she may be absent from the country during the early May to late July time period. Berry Dec., para. 26. The potential unavailability of Defendant’s most material witness may be fatal to his defense herein. Furthermore, this matter has been pending for a substantial period of time. Failure to proceed as scheduled prejudices Defendant and further deprives him of his constitutional rights.

V. PLAINTIFFS PRINCIPAL AUTHORITY IS MISREPRESENTED

In requesting enforcement of the tentative “Heads of Agreement” signed November 28,2001,

Plaintiff primarily upon Alipio v. Secretary of the Army, 1998 WL 231021 (N.D. Cal.). However, it is distinguishable upon both the applicable facts and law. Notwithstanding, Plaintiff argues that

the facts in Alipio were “almost the identical facts as those which occurred between the parties here.” Plaintiff’s Moving Memorandum, p.3: 18-20. Plaintiff then continues to argue: “Thereafter, the defendant sent the plaintiff a draft written settlement agreement reflecting what had been agreed to at the settlement conference. After delaying, plaintiff indicated that he changed his mind, he did not want to settle the case. … The facts in Alipio are virtually identical to what occurred here.” Plaintiff’s Moving Memorandum, p.3: 25 - 4:8. However, Plaintiff has filed no evidence to support his Ex Parte Application and conclusionary arguments. In addition, nowhere does any applicable law or authority provide that a motion such as this may be granted upon a naked unsubstantiated allegation of “circumstantial evidence” that is neither filed nor provided to the opposing party. Moving Memorandum, p.2: 9-12, Ex Parte Application para.2, p.2: 14-3:2, Paquette declaration, para. 5, p.2: 5-11. See page 15:5-21 below. Indeed, the only admissible evidence herein (other than Ms. Paquette’s unsupported declaration) is the Berry Dec. and Exhibits A to F thereto. Plaintiff cannot submit evidence with any Reply brief.

Defendant has lodged the tentative Heads of Agreement in a closed envelope with the Notice of Lodging filed concurrently herewith. Defendant sets forth the pertinent non-confidential facts in the supporting Berry Dec. paras. 4 C and 4D, para. 7 A, paras. 8 to 16 and Exhibits C and D thereto. There is absolutely no evidence to support Plaintiff’s claim that, as in

Aleppo, there was an “authorized” and “completed settlement. On the contrary, there was no “completed agreement.” Alipio at * 3. The document was tellingly titled “Heads of Agreement.” It was expressly not a “completed agreement.” In that regard, paragraph (7) provided for Plaintiff to “prepare the initial draft of the Settlement and related documents” and paragraph (9) provided

for the continuing involvement of the mediator in connection with the “finalization and execution of the settlement & related documents.” Berry Dec. para .10. This conclusion is further evidenced by the skeletal release provisions of the Heads of Agreement and the actual scope of the releases required to effectuate the express intent, exclusions and reservations of the parties and course of dealing between the parties. Berry Dec. paras. 8 - 14. Indeed, the contemporaneous correspondence of the parties evidences Defendants submissions herein. Berry Dec. paras. 4 C and 4 D, Exhibits C and D. Moreover, paragraph 8 provided a drop-dead settlement date of December 7, 2001. Berry Dec. Exh. C, Plaintiff’s own letter of anticipatory repudiation, evidences that that date came and went without a “finalization” and “execution” of “the agreement and related documents on or before December 7, 2001.Heads of Agreement, para. (8).

The real, apparent and continuing settlement problem is the non-waivable and irreconcilable conflict of interest between Plaintiff, his counsel herein and his former counsel, the law firm of Paul, Hastings, Janofsky & Walker, Samuel D. Rosen, Barbara Reeves, Michael Turrill and others. The avoidance of such conflicts of interest is the purpose of the California Rules of Professional Rules 3-210 (prohibited objectives of employment), 300-300 (avoiding interests adverse to a client) and 300-310 (avoiding the representation of adverse interests). On November 28,2001 Plaintiff’s counsel was already engaged in numerous conflicts of interest

engaged in by Plaintiff’s counsel as explained herein. Berry Decl., Exhibits A, B, D and E. Plaintiff’s counsel created and engaged in a further non-waivable conflict of interest as soon as soon as Plaintiff signed the tentative Heads of Agreement. This provided for further documentation as to the limited releases and necessary waivers of the excluded potential

defendants. Heads of Agreement paras. (3), (7) and (9). This process created and evidenced the impossible and serious continuing conflict of interest between Plaintiff and his lawyers herein. The real party in these proceedings is the Church of Scientology. Berry Dec.para.22, Heads of Agreement, paras. (1), (2), (4) and (5). The Church of Scientology employs both Plaintiffs counsel. Either it or its related and tax exempt International Association of Scientologists paid for or arranged the payment of Plaintiffs numerous counsel at the Paul, Hastings, Janofsky & Walker law firm. As a Scientology Sea Organization staffer he is paid less than $50.00 per week and Samuel D. Rosen of Paul, Hastings, Janofsky & Walker was charging him $495 per hour “no discounts to anyone.” Plaintiff Barton’s proper interests were to be released from this litigation with as little consequent liability as possible. That required his past and present lawyers, and their other agents (such as Eugene Ingram) to “fall upon their swords” and to execute appropriate “waivers of certain potential defenses” as part of the finalized settlement agreement contemplated by the Heads of Agreement. In light of the December 8, 2001 drop dead date for the settlement agreement and related documents to be drafted, and the other provisions of the Heads of Agreement, Plaintiffs counsel herein are in an impossible and extremely egregious position of being in a conflict of interest diametrically opposed to that of their client Barton whose interests are also being demonstrably subordinated to Plaintiff’s counsel’s other client the

Church of Scientology. Accordingly, and unlike the controlling facts in Alipio, a ‘further writing’ was expressly required by the Heads of Agreement. Alipio at *3 (Applicable Law and Analysis) Plaintiff has ignored and/or misrepresented these matters in filing it’s defective and duplicitous Ex Parte Application to seek to enforce an alleged completed settlement agreement with sealed

filings and in closed proceedings that smack of Star Chamber tactics.

VI. PLAINTIFFS BAD FAITH CLAIMS ARE MATERIAL MISREPRESENTATIONS

In fact, the blatantly evident abuse of process herein, and in the related parallel and underlying matters [Berry Dec. Exhibit F], mandate that this Court now exercise and implement, upon its own motion, the powers and procedures set forth in 11 U.S.C. Section 105.

VII. SEALED MOTIONS AND CLOSED HEARINGS -AN ATTEMPT TO OBSTRUCT JUSTICE.

The Bankruptcy Code provides for public access to court documents. 11 U.S.C. Section 107 provides:

(a) Except as provided in subsection (b) of this section, a paper filed in a case under this title and the dockets of a bankruptcy court are public records and open to examination by an entity at reasonable times without charge.

(b) On request of a party in interest, the bankruptcy court shall, and on the bankruptcy court’s own motion, the bankruptcy court may -

(1) protect an entity with respect to a trade secret or commercial research, development, or commercial information; or

(2) protect a person with respect to a scandalous or defamatory matter contained in a paper filed in a case under this title. Emphasis added.

Moving plaintiff does not cite to this limited statutory provision, makes no arguments

and provides no evidence to support any reliance upon this express and limited statutory provision within the Bankruptcy Code.

Plaintiff claims to have “circumstantial evidence that [defendant] disseminated the terms of the Agreement to his Internet friends which resulted in detriment to the Plaintiff.” Moving Memorandum, p.2: 9-12, Ex Parte Application para.2, p.2: 14-3:2, Paquette declaration, para. 5, p.2: 5-11. Fatally, Plaintiff fails to provide any such evidence in any admissible or other manner. Moreover, Defendant denies the allegation. Berry Dec., para. 29. If any such “circumstantial

evidence” actually existed it should have been filed or lodged herein. Nowhere does any applicable law or authority provide that a motion such as this may be granted upon a naked unsubstantiated allegation of “circumstantial evidence” that is neither filed nor provided to the opposing party. Plaintiff himself provides no evidence as to his alleged “detriment.” Indeed, and contrary to applicable rules, Plaintiff himself did not even attend and participate in the Court ordered mediation herein. On the other hand, and contrary to 11 U.S.C. section 105, this proceeding is Defendant’s in name only. The real Plaintiff herein is the Church of Scientology. Berry Dec. paras. 15 and 22.

Plaintiff also seeks a sealing order because of alleged threats allegedly made by Defendant. Ex Parte Application para 2,p.2: 18-23, Memorandum pp. 2:2-8, Paquette Dec.para.6, p.2: 2-4. Again, Plaintiff fatally fails to support his claims, made under penalty of perjury with any admissible or other evidence. Apparently, the motion must be filed under seal because Defendant’s alleged Internet friends (members of the public), “all of whom are openly hostile to

plaintiff” and who Defendant has been “inciting… to take actions against plaintiff, plaintiff’s counsel and plaintiff’s law firm.” Movant’s Memorandum pp.1: 26-28, 5: 4-9. Again, absolutely no evidence is provided to support these allegations. They are denied by Defendant. Berry

Dec. 29. In fact, Plaintiff reveals the truth with an unintentional slip of the tongue. Obviously, the Plaintiff being referred to at this point of Barton’s Ex Parte Application is his employer, the Church of Scientology and it’s in-house lawyers Moxon & Kobrin. Such “truth revealed” is a blatant 11 U.S.C. § 105 violation. Moreover, and despite the absolute lack of any evidence by Plaintiff to support his shrill invective, Defendant deals extensively with Plaintiff’s allegation in

his supporting declaration hereto. Berry Dec., paras. 4A, 4B and 4D and Exhibits A, B and D thereto.

Amazingly, it is Plaintiff’s implicit contention that the Internet newsgroup in which Defendant participates along with members and shills of the Church of Scientology is neither comprised of members of “the public” or constitutes a recently evolved definition of “the press.” The relevant Internet newsgroup is alt. religion scientology. It is also colloquially known as ARS. Plaintiff’s counsel reads it too! Berry Dec. para. 27. Plaintiff’s counsel probably disagrees with comments made by many of the newsgroups participants. However, the alt.religion.scientology Internet newsgroup is one of the top five most read newsgroups on the Web with over 380,000 regular reporters and readers following these matters. ARS Week In Review summarizes the most significant postings from this Usenet group. However, because of Scientology’s “psycho terrorism” [Berry Dec. Exhibit E, p.178 [20] et. seq.,] the vast majority of readers are silent lurkers, scared of Scientology “Fair Game” retaliation if they speak out

critically. ARS Week In Review is archived at:

http://www.xenu.net/archive/WIR/ and http://www.uni-bonn.de/~uzs1dc/scientology/wir.html and http://www.religio.de/publik/arsfaq.html

In Crowley v. Pulsifer, 137 Mass. 392 (1884) Justice Holmes remarked:

It is desirable that the trial (s) … should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed. Id. at 394.

Attached to the supporting Berry Declaration are Exhibits A to F. For all the reasons readily apparent from said Exhibits A to F, it is all the more important in the specific circumstances of this particular litigation saga, commencing in 1991, that nothing in these proceedings, or in connection with the pending Ex Parte Application, be down other than in open court or upon the open court record. See generally, Exhibits F and G hereto.

A. The First Amendment Grants The Public And Press A Right To Court Records.

The public (which includes the Internet) has a first Amendment right to access civil trials and trial records. Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 7-10 (1986); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). The right extends to the inspection of public records. In re Reporter’s Commission For Freedom of the Press, 773 F.2d 1325 (D.C. Cir. 1985). Surely, written pre-trial documents and correspondence between opposing counsel in litigation is included, where released. Significantly, the Ninth Circuit has held that the First

Amendment grants the public a right of access to pre-trial documents. Associated Press v. District Court, 705 F. 2d 1143, 1145 (9^thCir. 1983). Relying upon the Supreme Court’s holding in Richmond Newspapers, 448 U.S. at 569, that there is a right of access to criminal trials, a

number of lower courts hold that the First Amendment also grants a right of access to civil trials and trial records. Publisher Indus. Inc. v. Cohen, Inc., 733 F 2d 1059, 1071 (3^rd Cir. 1984) (“[T] he public and the press possess a First Amendment … right of access to civil proceedings; indeed, there is a presumption that these proceedings will be open.”); In Re Continental Illinois Securities Litigation, 732 F.2d 1302 (7th. Cir. 1984); Brown Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1178-79 (6^th Cir. 1983). See also Westmoreland v. Columbia Broadcasting System, 752 F. 2d 16, 23 (2d Cir. 1984).)

B. The Common Law Grants The Public And The Press A Right to Court Records

The public also has a common law right to access trials and trial records. Nixon v. Warner Communications, 435 U. S. 589, 597-99 (1978). See Press-Enterprise Co. v. Superior Court, 478 U.S. 1,14 (1986); Globe Newspapers Co. v. Superior Court, 457 U.S. 596, 606-10 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569 (1980); Nebraska Press Ass’n. v. Stuart, 423 U.S. 1327, 1328-1329 (1975); United States v. Corbitt, 879 F.2d 224,228 (7^th Cir. 1989);In Re Reporter’s Comm. For Freedom of the Press, 773 F.2d 1325,1332-36 (D.C. Cir. 1985). In Warner - Communications, the Supreme Court declared: “It is clear that the courts of this country recognize a general right to inspect and copy public records and documents.” 435 U.S. at 597 (footnotes omitted). This right exists to enhance popular trust in the fairness of the justice system, to promote public participation in the workings of government, and to protect the

constitutional guarantees. Richmond Newspapers., 448 U.S. at 571 -572 (1980) (plurality opinion). The common law right to access trials and trial records applies to civil cases as well. Westmoreland v. Columbia Broadcasting System, 752 F. 2d 16, 22-23 (2d Cir. 1984), cert.

denied, 472 U.S. 1017 (1985); Publicker Indus. v. Cohen, 733 F. 2d 1059, 1067-71 (3^rd Cir. 1984); Brown & Williamson Tobacco Corp. v. FDIC, 710 F.2d 1165, 1177-79 (6^th Cir. 1983). Finally, the common law right to access includes access to pre-trial documents such as statements, briefs, summary judgment motions, and supporting affidavits and exhibits. In re Coordinated Pretrial Proceedings In Petroleum Prods. Antitrust Litig. 101 F.R.D. 34, 41-43 (C.D. Cal. 1984) .See In re Continental Ill. Sec. Lit., 732 F. 2d 1302, 1308-09 (7^th Cir. 1984); Joy v. North, 692 F.2d 880, 893-94 (2d Cir. 1982), cert. denied, 460 U.S. 1051 (1983).

In addition, the California courts have recognized this common law right of access: “ The law favors maximum access to judicial proceedings and records. Judicial records are historically and presumably open to the public and there is an important right of access which should not be closed except for compelling countervailing reasons.” Champion v. Superior Court, 201 Cal. App. 3d 777, 788, 247 Cal. Rptr. 624 (1988). Another case is particularly on point in light of the matters set forth in Exhibits A to F hereto. See generally, Exhibit p.101 [8]. In Church of Scientology v. Armstrong, 232 Cal. App. 3d 1060, 283 Cal. Rptr. 917 (1991), the court stated:

If the public court business is conducted in private, it becomes impossible to expose corruption, incompetence, inefficiency, prejudice, and favoritism. For this reason traditionally Anglo-American jurisprudence distrusts secrecy in judicial proceedings and favors a policy of maximum public access to proceedings and records of judicial

tribunals. Thus, in Shepard v. Maxwell (1966) 384 U.S. 333, 350 [16 L.Ed.2d 600,613, 86 S. Ct. 1507], the court said it is a vital function of the press to subject the judicial process to “extensive public scrutiny and criticism.” And the California Supreme Court has said, ‘it is a first principal that the people have a right to know what is done in their courts…’

Id. at 1068 (citations omitted in part).

C. Federal Rules Of Civil Procedure Grant Public And Press A Right To Court Records

Federal Rules of Civil Procedure 5 (d) and 26 (c) grant the public a presumptive right of access to trial records. Rule 5 (c) requires that the parties file all papers with the court. Rule 26 (c) requires that “upon a party’s motion and when good cause is shown, the court may make any order which justice requires to protect a party or a person from annoyance or undue burden.” No such showing has been made herein.

The courts have interpreted these requirements as creating a presumptive right of access to trial records. D’ Ambrosio v. City of Concord, 1990 U.S. Dist. LEXIS 8256 at * 2 (N.D. Cal. 1990). (Rule 26 (c) create [s] a presumptive right of access to discovery material ….”); In re Agent Orange Product Liability Litigation, 821 F. 2d 139, 145-47 (2d Cir. 1987). In particular, courts have focused on Rule 26 (c) s good cause requirement: “) s good cause requirement means that, ‘ [a] s a general proposition, pretrial discovery must take place in the public unless compelling reasons exist for denying the public access to the proceedings.’” Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 789 (1^st.Cir. 1988) (quoting American Telephone & Telegraph Co. v. Grady, 594, 596 (7^th Cir. 1980); In re Coordinated Pretrial Proceedings in Petroleum Products Antitrust Litigation, 101 F.R.D. 34, 38-41 (C.D. Cal. 1984).

VIII. CONCLUSION

In 1914, Justice Louis Brandeis wrote:

“Publicity is justly recommended as a remedy for social and industrial disease. Sunlight is said to be the best of disinfectants, the electric light the most effective of policemen.”

Apparently, Plaintiff, his counsel and his employer (the Church of Scientology) would

divert responsibility for the pain of illumination to their victim, the Defendant. However, their shocking duplicitous, deceptive and downright dishonest misrepresentations should be rejected out of hand and sanctioned appropriately. Plaintiff’s pending Ex Parte Application should be denied in its entirety as lacking in good faith, good cause and the deemed Rule 11 representations of counsel filing them.

Dated: January 11, 2001 Respectfully submitted,

_____________________________

Graham E. Berry, Defendant/Debtor Pro Per

DECLARATION OF GRAHAM E. BERRY

I, Graham E. Berry, hereby declare and state as follows:

1. I am an attorney at law duly admitted to practice before all the courts of the States of California and New York, the State of New South Wales, Australia and the Dominion of New Zealand. I am currently of inactive status in the State of California. I am the Debtor/Defendant herein, appearing pro per. I have personal knowledge of the matters set forth herein. As to those matters herein stated to be upon information and belief I believe them to be true. If called upon to do so, I believe I could and would competently testify thereto under oath.

2. This Declaration is submitted in opposition to Barton’s Ex Parte Application To File Motions Under Seal And To Continue The Trial Date herein, etc. With regard to any technical defects in these papers I request the Court’s indulgence. I am now “a one man band” with regard to the research, writing, word processing, copying, assembling, filing and service of litigation papers including these herein.

3. Contrary to paragraph 5 of the Ava Paquette declaration under response, and page 2 lines 18 through 23, I have never ‘threatened” Ms.Paquette with the alleged conduct. Indeed, if I had so “threatened” Ms.Paquette as alleged, and on the basis of her conduct to date, I have no doubt she would not have lost one minute in initiating appropriate action with the appropriate agencies.

AUTHENTICATION OF EXHIBITS HERETO

4. Attached hereto are true and correct copies of the following documents:

A. EXHIBIT A: Letter dated October 7, 1999 from Graham E. Berry to Ava Paquette.This letter was written to Ms. Paquette to ensure that she realized the extent of the criminal and RICO conspiracy and enterprise she was stepping into. As stated on page 13 therein:

Accordingly, I did not want any of the contents of this letter (and the evidence referred to) to come as an epiphany to you when you read it for the first time in court papers filed by me. Furthermore, since you were not involved as an attorney in these

matters, earlier than 18 months ago, I wanted you to have notice of the above events and the light in which I contend they should be cast. I know your OSA superiors will disagree, but at least I have placed you upon "inquiry" or "investigation" notice, if only as far as the non-Scientology or "Wog" courts are concerned.

In addition, upon information and belief, and as explained in Exhibit F hereto, the Church of Scientology is a totalitarian “psycho-terrorist” political movement that is structured like the Nazi, Communist and Taliban organizations. Accordingly, information is provided to staffers such as the Moxon & Kobrin section of the OSA Legal Unit upon a ‘need to know’ basis only. If her OSA superiors permitted Ms.Paquette permitted to review the entirety of this letter, and to conduct an appropriate independent investigation, she would have seen the exposure to criminal, civil and disciplinary action that the deposition, declaration and documentary evidence in these various inter-related matters now establishes according to all appropriate evidentiary standards.

B. EXHIBIT B: Letter dated July 27, 2002 from Graham E. Berry to Ava Paquette. This letter also merely details the multitude of demonstrable criminal, civil and ethical violations that the Plaintiff’s in the various inter-related Adversary proceedings herein have littered about the litigation landscape in these and the related underlying proceedings where they were defendants. Again, the letter does not “threaten” Ms.Paquette as she alleges without providing any evidential support.

C. EXHIBIT C: Letter dated December 12, 2001 from Ava Paquette to Graham E. Berry.

This letter is an anticipatory repudiation of the Heads of Agreement and states, in pertinent part:

“Please let me know, by 5:00 p.m. on Friday, December 14, 2001, if you agree to this agreement. If you do not, this will give me enough time to inform the Court and the mediator of what has occurred here and to give notice to the Court that trial of this matter shall go forward as scheduled on January 28, 2002.”

D. EXHIBIT D: Letter dated December 14, 2001 from Graham E. Berry to Ava Paquette.

This four-page letter accepted Ms. Paquette’s anticipatory repudiation of the provisional but uncompleted settlement and settlement process. It also dealt with her amazing claims that it is I who has acted in “bad faith” in these various matters. It merely states facts and contentions. Again, the letter does not “threaten” Ms.Paquette as she

alleges without providing any evidential support. In the letter, I also request Ms.Paquette to provide a copy of the letter to the Court when she gave “notice to the Court that trial of this matter shall go forward as scheduled on January 28, 2002.”

E. EXHIBIT E: A copy of a document entitled (herein) THE INSTITUTIONAL BASIS FOR SCIENTOLOGY “PYSCHO-TERRORISM. ” This document provides an analysis of the institutional policies, procedures and practices that spawned the underlying litigation (s), this litigation and the pending ex parte application before this Court.

F. EXHIBIT F: A copy of a document entitled (herein) FACTUAL SUMMARY. This document provides a factual summary of the underlying litigation (s) and aspects of the litigation pending herein. It can be read in conjunction with Amended Defendant’s: (1) Response To Plaintiff’s Undisputed Facts: (2) Separate Statement of Genuine Issues; In Support of Defendant’s Opposition to Plaintiff’s Motion For Summary Judgment, etc., pages 42 to 83, filed July 6, 2001. The chronological history and reference to supporting evidence has been considerably expanded since then and continues to be updated. An updated version is already with the State Bar of California and is part of the documentation referred to in the immediately following paragraph.

5. Exhibits E and F are portions of a much larger document. Before this and the next week are out, this much larger document will be circulating at the very highest levels of the federal executive and legislative branches of the United States government, the highest level of the California State judiciary, high levels of certain foreign allied governments and certain

international and geographic organizations. Among other things, as set forth in Exhibits E and F, the matters for broad review also include those in the underlying, related and current proceedings.

REQUEST FOR JUDICIAL NOTICE

6. The Court is requested to take judicial notice of it’s own files in this and the related Adversary actions. In particular, judicial notice is requested of the moving papers, amended opposition papers, reply papers and memorandum of decision (filed and dated August 14, 2001) re Plaintiff’s Motion for Summary Judgment herein. In particular, the Amended Defendant’s: (1) Response To Plaintiff’s Undisputed Facts: (2) Separate Statement of Genuine Issues; In Support of Defendant’s Opposition to Plaintiff’s Motion For Summary Judgment, etc., pages 42 to 83, filed July 6, 2001.

REBUTTAL OF CERTAIN REPRESENTATIONS BY MOVANT PLAINTIFF

7. This section of my declaration is in rebuttal of:

A. Bad Faith Allegations. Plaintiff’s Ex Parte Application page 2 lines 4-13, Plaintiff’s Memorandum page 1 lines 4-19 and Ms. Paquette’s declaration paragraph 3;

B. Request For Sealed Filings And Closed [secret] Hearings. Plaintiff’s Ex Parte Application page 2 line 14 to page 3 line 2, Plaintiff’s Memorandum page 1 line 21 to page 2 line 12 and Ms. Paquette’s declaration paras. 4 and 5;

C. Request For Trial Continuance. Plaintiffs Ex Parte Application page 3 para. 4, Plaintiff’s Memorandum page 2 lines 14-21, page 5 lines 10 -16 and Ms. Paquette’s declaration para. 6.

8. As this Court is aware, this case is related to the two Hurtado v. Berry lawsuits. One was filed in Los Angeles Superior Court [LASC Case No. BC 208227] and the other was filed as a related proceeding herein. Case no. LA 99-32264 ER / Adversary No. AD 99-02559 ER. In particular, in

the Hurtado v. Berry Adversary Proceeding previously pending before this court, the Court is referred to Defendant’s Response to Plaintiff’s Motion To Dismiss, paragraph 9, filed on or about June 28,2001.

“…Plaintiff Hurtado dismissed the State Court suit on February 6,2001 - less than one month before the scheduled State Court trial date. Pending before the State Court trial judge was Defendant’s motion to waive the attorney client privilege between Hurtado, Don Wager, Esq., Thomas Byrnes, Esq.. Moxon, Kobrin, Paquette, Elliot Abelson, Esq., the Church of Scientology and others. The motion followed a retired “discovery” judge ruling that the crime-fraud exception to the attorney - client privilege (Cal. Evidence Code § 956) applied to the identical proceedings in the State Court case. Hurtado also faced a motion to compel the deposition of Moxon & Kobrin “chief investigator” Eugene Ingram and a battery of other motions to compel discovery refused by Hurtado and Moxon & Kobrin.”

When it became apparent that Hurtado, through Scientology, Moxon, Kobrin and Paquette, no longer intended to/were able to prosecute the Hurtado v. Berry Adversary proceeding, this Court ordered them to file a motion to voluntarily dismiss the case. On July 10, 2001, this Court granted Plaintiff’s Motion to Dismiss the Hurtado v. Berry adversary proceeding pursuant to F. R. Civ. P. Rule 41 (a). F.R.Civ.P.Rule 41(a) expressly provides “ that a motion for dismissal operates as an adjudication upon the merits when filed by a plaintiff who

has once dismissed [as here] in any court of the United States or of any state [as here] an action based on or including the same claim [as here].” This Court dismissed the case with prejudice.

Consequently, I now have a very strong case, among other things, for malicious prosecution and abuse of process, against Moxon, Kobrin, Paquette, Hurtado and others. Of course, there are other continuing causes of action relating to the continuing defamatory publications and abuse of process that were the subject of the Berry v. Cipriano, Barton, Miscavige, Church of Scientology, Moxon, Abelson, Ingram, et al cases and the conduct that Moxon, Kobrin, Paquette, Ingram and others engaged in therein. See generally, Amended Defendant’s: (1) Response To Plaintiff’s Undisputed Facts: (2) Separate Statement of Genuine Issues; In Support of Defendant’s Opposition to Plaintiff’s Motion For Summary Judgment, etc., pages 42 to 83, filed July 6, 2001.

9. In my non-confidential mediation statement dated November 20, 2001, and served on Plaintiff (Barton did not serve one) I stated on pages 1-3:

“As you will read, the Barton v. Berry matter is only a part of a much bigger picture. I am currently interviewing counsel in connection with a malicious prosecution and abuse of process case against the Moxon & Kobrin law firm, Ava Paquette, Elliot Abelson, Donald Wager, and certain other entities, law firms and individuals. In that regard, I point out that juries in two analogous but less egregious cases (one 23 years ago and one 15 years ago) each returned trial court verdicts and awards of $30M against the Church of Scientology. However, even if the Church and the other culpable parties were to offer me an inflation-adjusted settlement of $30M

net (after taxes) I would probably not accept it. If I did so, I would be walking away from other victims

and the governments now being successfully persuaded that now is the time to move against the criminal excesses of the Church of Scientology and the associated Church leaders, lawyers, private investigators and corrupted public officials.

Accordingly, and because of the matters set forth herein, there will be “not one thin dime to” the cult of crime, fraud and fair game. Moreover, there are no present circumstances in which I could execute a general release in favor of Barton because he may be a defendant in the malicious prosecution/abuse of process case referred to above.

…The evidence in the Hurtado v. Berry case is unusually damning because it is corroborated by a lawyer’s testimony/confession (a former Los Angeles County Criminal Courts Bar Association President), over ten different witnesses as well as over sixty different documents - many of which

NOTE: Paragraphs 10 - 14 and pages 28:15 to 31:28 intentionally deleted from version not being filed.

14. On December 12, 2001, Ms. Paquette responded with her letter of anticipatory repudiation attached hereto as Exhibit C and described in Paragraph 4 C above.

15. Referring to the substantive provisions of the Heads of Agreement, the primary and tentative settlement provision was expressly not confidential:

“(1) The settlement shall be confidential except that Berry may state the fact of his stipulated stay-away from the defined portion of L.Ron Hubbard Way, Los Angeles, California.”

L. Ron Hubbard Way was formerly known as Berendo Street. It contains a number of Scientology buildings. Occasionally, myself and others exercise out first amendment rights of freedom of association, expression and speech on L.Ron Hubbard despite an attempt to run me down with a motor vehicle. The Church of Scientology is not an actual party to these proceedings. The complaint herein was for money and not the curtailment of Defendant’s constitutional rights under the first amendment to the United States Constitution.

16. On December 14, 2001 I accepted Ms. Paquette’s anticipatory repudiation of the tentative settlement, due to “finalization and execution issues” [Heads of Agreement para. 9]. See Exhibit D hereto and paragraph 4D above.

17. Sometime subsequently, either just before or just after the Christmas holiday, Ms.Paquette telephoned me and gave me notice of an Ex Parte Application to Continue The Trial Date herein. The reason she expressed was that on November 28,2001 she had suspended her preparation for trial herein, had lost the subsequent three weeks in which she could have

been continuing to prepare for trial herein and thus was unable to prepare this case for trial in the five to six weeks remaining before the trial date of January 28, 2002 herein.

Ms.Paquette neither filed that Ex Parte Application nor communicated any withdrawal of notice.

18. On January 2, 2002 Ms.Paquette telephoned me and gave notice of another Ex Parte Application herein. She told me it was to continue the trial date and to enforce the settlement agreement. No further information, or filing information was given. On January 8, 2002 I received the pending Ex Parte Application by mail. It was not personally served as required by the rules. Plaintiff has regularly refused to enter into stipulations providing for fax service by the

parties herein. At approx. 9-40 am on Wednesday January 9, 2002 I telephoned the chambers of the Court herein and advised a representative of the Court that: (1) Plaintiff had filed this Ex Parte application on Monday January 7,2002; (2) It was not hand-served. It was served by mail and received Tuesday January 8, 2002; Defendant would file opposition; (3) Defendant’s opposition would be filed no later than noon Thursday January 10, 2002 (courtesy copy to chambers).

19. I have twice been flown to Germany in connection with the provision of information to the German Government, which deems Scientology to be a psycho-terrorist organization, a criminal enterprise and a totalitarian threat to democracy. See generally, Exhibit E hereto, pages 20 -30. On each occasion, I have been provided with Secret Service protection. In addition, a senior Los Angeles Sheriffs officer has cautioned me that my life may be in danger at the hands of the Church of Scientology and/or it’s agents despite my high Internet profile. I have adopted a high public profile in these and the related and associated matters believing that such provides me

with better security and safety against the Church of Scientology and it’s covert operatives. See Exhibit F, page 156 herein. The following passage of mine is illustrative of this:

“CNN Cross Fire Co-Host Bill Press has said that the Church of Scientology is, “Very clever, very skilled at media harassment. I was not prepared for that kind of harassment. I never ever received anything like that before from any other source. They’re an untold story. They’ve scared a lot of news off. They’re getting away with murder. I say put on your asbestos suit and charge.” emphasis added

http://www.lermanet2.com/cos/index.html

Commentator Bill Press’s words were closer to the truth than he may have realized. In writing on Church of Scientology “ethics,” Scientology’s “spiritual” founder L. Ron Hubbard stated:

“…in any command of mine, you can wear horns and grow a tail if you do your job. If you don’t do your job, you can’t even think sideways without getting disciplined, transferred or demoted.”

Flag Order 4, 13 August 1967, by L.Ron Hubbard.

Similarly, L.Ron Hubbard wrote:

“In short, a staff member can get away with murder so long as his statistic is up and can’t sneeze without a chop if it’s down. To do otherwise is to permit some suppressive person to simply Ethics chit every producer in the org out of existence.” emphasis added

HCOPL, 1 September 1965, Ethics Protection.

The Church of Scientology has a policy and practice, instituted on February 16,1969, entitled “Confidential: Battle Tactics” which requires the Church to use military tactics and strategy in dealing with the “enemy” which is defined to include American citizens such as I. The Church, and the individuals subject to the criminal complaint that is this letter, are ordered to conduct

“… wars of attrition on the basis of total attrition of the enemy. So never get reasonable about them. One cuts of enemy communications, funds, connections. He raids and harasses. Seeing it as a battle one can apply battle tactics to thought actions. Intelligence identifies targets and finds out enemy plans and purposes, enemy connections, dispositions, etc. Never treat a war like a skirmish. Treat all skirmishes like war.” emphasis added

Similarly, a Hubbard Communications Office Policy Letter of December 2,1969 entitled “Confidential: Intelligence-Actions: Covert Intelligence: Data Collection, states that:

“Essentially a covert operation is intended to embarrass, discredit or overthrow or remove an actual or probable opponent. It is a small war carried on without its true source being disclosed. It follows all the rules of war but uses propaganda, psychological effect, surprise, shock, etc., to achieve its ends.” emphasis added

See in particular: Exhibit F page 107 attached hereto.

20. At all material times I have listed Kendrick L. Moxon as a material witness herein. I believe he was listed on my own trial witness list herein. He was to be a defendant in the underlying case but abused process as explained in Exhibit F in order to force me out of the underlying litigation (Berry v. Barton) where he and Barton obtained the prevailing party

costs order at issue herein (after my forced voluntary dismissal). See Exhibit F, pages 120 - 125 attached hereto.

21. To the best of my knowledge, none of Plaintiff’s relevant recent filings herein have identified Kendrick L.Moxon as trial counsel herein. Significantly, he has not participated in these proceedings for over 12 months and did not attend any of the pre-trial conferences herein and he did not seek to be excused there from. Ms. Paquette who has never advised

the Court that she would not be trial counsel herein herein has attended all pre-trial conferences.

22. Plaintiff Barton did not attend the court ordered mediation herein. Instead, Ms.Paquette appeared alone However, I did observe that she was accompanied by one Lynne Shipe. Lynne Shipe is a senior officer within the Church of Scientology’s Office of Special Affairs, which is the Church’s massive intelligence, intimidation and “psycho-terrorism” Department 20 on the Church of Scientology Organization Board. I understand and believe that Ms. Shipe reports directly to Captain David Miscavige, the totalitarian Church’s “ecclesiastical leader”. She was in a separate room to which Ms.Paquette would retire whenever she expressed a wish to “consult with her client” or while Defendant was meeting with the mediator. Ms. Shipe has been recently

identified in other court proceedings (Wollersheim v. Church of Scientology) as a person engaged in alleged evidence tampering and destruction.

23.This is a no asset bankruptcy. I am partially and temporarily disabled by severe depression caused by seven years of outrageous conduct against me by Moxon, Abelson, Ingram and others. The publication, and continuing publication, by Barton and others, of the First Cipriano Declaration (now recanted) has totally destroyed any reasonable employment prospects that I would otherwise have had. In addition, Scientology and its agents continue to defame me on various Internet sites such as http://www.parishioners.org. I receive no income other than California General Relief payments and food stamps. I have no non-exempt assets. I survive through the kindness of friends and strangers outraged by what has been allowed to happen in the underlying, related, these and similar proceedings in which Moxon, et al. are involved. In short, these Adversary actions filed by Moxon, Kobrin, and Paquette et al have deprived me of my

career, condo and car and any reasonable employment or retirement prospects. However, Moxon, Kobrin, Paquette et al. remain frustrated because I am not yet living in the streets and have not yet allowed them to drive me to suicide which others have stated is their intention. The

filing of action after action, and motion after motion, against myself and other no-asset victims of Moxon, Kobrin, Paquette, Barton, Chait, Ingram and their church is intended to ensure there is never a window of opportunity for a fresh start. See generally Exhibit E.

24. Finally, and as I have submitted before, it is painfully apparent that Moxon, Kobrin, Paquette and the ‘adversaries’ herein are burdening this court with a multiplicity of actions for purposes not primarily related to the objectives of the Bankruptcy Code, and the function of the

Bankruptcy Courts. In this regard, Defendant concedes that our judicial system is properly premised upon officers of the court, and litigants, playing by the rules. However, our judicial

system has great difficulty dealing with those whose modus operandi is to ignore the rules on a massive scale, and to terrorize those who would otherwise enforce the rules. Moxon, Kobrin, Paquette, Barton and Hurtado have blatantly ignored the rules in both the underlying matters and in these proceedings. This Court possesses equitable jurisdiction. It is time to end the travesty by also dismissing the Barton Adversary Proceeding sua sponte and entering an order of discharge. Monetary sanctions have no teeth here. Although Moxon, Kobrin and Paquette require Defendant to be engaged in litigation most of these days of his life, Defendant appears pro se. He cannot claim an hourly billing rate in connection with sanctions that might otherwise deter the Moxon, Kobrin and Paquette abuses of process.

25. On information and belief it is my understanding that the Church of Scientology and it’s various culpable attorneys are aware that at least four Los Angeles law enforcement agencies at medium and high levels have been reviewing these matters during the past few weeks and that a

recommendation has been made to me and which I am now following at the highest national and international levels.

26. One of the only witnesses I have been permitted to call at trial herein is Ms. Jane Scott. Upon information and belief I am advised by Ms.Scott that her plans may call for her to be out of the country at various times between early April and late July, 2002.

27. The Church of Scientology controls and attempts to eliminate the access of all Scientologists to any information that is critical of, or adverse to, the Scientology enterprise. Information is therefore Entheta (to be censored and suppressed) or non-entheta (permitted). The Church of Scientology distributes a censoring computer software program publicly referred to as the Scientology Net Nanny. Unbeknownst to most Scientologists, the “net nanny” is bundled with free software distributed to Scientologists and required to be installed on their computers in connection with the Church of Scientology’s Internet spamming activities. With my knowledge of this Scientology Net Nanny, on several occasions I have challenged Ava Paquette’s knowledge of Internet newsgroup postings such as on the alt. Religion Scientology newsgroup known as ARS. It is unlikely that Plaintiff himself is permitted to read ARS. However, on each occasion, Ms.Paquette has advised me that she personally reads and follows the ARS Newsgroup.

28. On January 19, 2001, Donald Wager, Esq. testified in Hurtado v. Berry, before a retired superior court judge, that he had unlawfully solicited the representation of Hurtado (away from me) and had engaged in witness tampering in connection with both Hurtado and Apodaca. Consequently, Retired Los Angeles Superior Court Judge Stephen Lachs, acting as discovery referee in Hurtado v. Berry, ruled that there was no attorney-client privilege protection as to any of the communications between then Los Angeles County Criminal Bar Association President Wager, Hurtado, Moxon, Kobrin, Paquette, Abelson, Byrnes and the Church of Scientology. Cipriano had already waived his attorney-client privilege. Judge Lachs ruled that, pursuant to Cal. Evidence Code § 956, the services of the lawyers (expressly including Wager, Moxon, Abelson and Byrnes) had been sought or obtained (by Scientology and Hurtado) to enable the commission of a crime or fraud. The judge also noted the deceptive misrepresentations, by counsel, that Scientology had nothing to do with the Hurtado v. Berry cases.

29. I deny Plaintiff’s unsubstantiated claims of circumstantial evidence that I have violated the terms of the Heads of Agreement dated November 28, 2001 and lodged separately herewith. However, in the past, and on at least two demonstrable occasions I have previously testified to, Abelson, and Ingram (hired by Moxon) have engaged in illegal wiretapping of my telephones.

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

Executed this 10^th day of January 2002 at Los Angeles, California.

_________________________________

Graham E.Berry, Declarant/Defendant/Debtor