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Keel v. Schwarzenegger

May 19, 2009


The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge


On December 8, 2008, Kenneth G. Keel, (hereafter referred to as "Plaintiff"), a state prisoner proceeding pro se, filed a "Civil RICO Complaint," pursuant to 18 U.S.C. §1964(c), accompanied by "Plaintiff's Notice and Request for Judicial Notice," which contained Appendices A through L. The Complaint purports to allege claims under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §1964. Plaintiff has named as Defendants Governor Arnold Schwarzenegger; Henry T. Nicholas III; Pete Wilson; Todd Spitzer; Justice for Homicide Victims, Inc., and Does 1-30.

Plaintiff alleges that Defendants have used "income derived from a pattern of racketeering activity to form and operate a public policy enterprise, which has caused, and continues to cause Plaintiff to be 'injured in his business or property' within the meaning of 18 U.S.C. §1964(c)." Plaintiff also alleges claims entitled "federal due process, conspiracy against rights" and "common law conspiracy." (Complaint at ¶¶ 1 and 2.) Plaintiff alleges that from January 1999 continuing through 2006, Defendants have continuously engaged in wrongful acts. (Id. at ¶ 5.)

Plaintiff contends that Proposition 184, the Three Strikes Law, has led to sentences that are grossly disproportionate to the triggering offense. (Id. at ¶ 37.) Plaintiff alleges that on October 15, 1997, he was arrested for petty theft. After being convicted by a jury, Plaintiff received an indeterminate sentence under California's Three Strikes Law of 25 years. (Id. at ¶ 38.)

Plaintiff alleges that in approximately January 1999 through early 2006 Defendant Nicholas directed and caused Broadcom employees to obtain controlled substances. Defendant Nicholas allegedly orchestrated and perpetuated a massive scheme that involved fraudulent stock options backdating, falsifying corporate records, intentionally falsifying accounting and lying to shareholders. (Id. at ¶¶ 40, 41.) Plaintiff alleges that Defendant Nicholas laundered proceeds derived from the activities described above and that Orange County and state officials protected Defendant Nicholas from arrest and criminal prosecution. (Id. at ¶¶42-43.)

Plaintiff alleges in early 2002 he formed an activity group named INSIDE FACTS ("IF-FSP") which had a membership of approximately 50 similarly situated individuals who endorsed and joined the "Amend California's Three Strikes" ("ACTS") campaign to pass a 2004 ballot measure. In early 2004, supporters to amend the Three Strikes Law announced that Proposition 66 would be placed on the ballot, which would allow resentencing of nonviolent individuals currently serving a 25-year sentence. (Id. at ¶ 48; see Appendix "D.") Plaintiff, currently serving an indeterminate life term for one count of petty theft, alleges he would have been eligible for a resentencing hearing within 180 days after this measure took effect and qualified for release forthwith. (Id. at ¶ 49.) Plaintiff alleges that inside the 2004 official voter handbook distributed to the public the argument against Proposition 66 contained material misrepresentations of fact and deceptive statements. Plaintiff alleges the ballot argument, signed by Defendants Arnold Schwarzenegger, Bill Lockyer and Harriet Salarno, inaccurately stated that Proposition 66 would "flood our streets with thousands of dangerous felons, including rapists, child molesters and murderers." (Id. at ¶ 50.)

Plaintiff alleges in late October 2004 Defendant Wilson contacted Defendant Nicholas via telephone and requested that Defendant Nicholas join a group of individuals, including Defendants Wilson, Schwarzenegger and Spitzer, to defeat Proposition 66. Plaintiff alleges Defendant Nicholas agreed to participate in defeating Proposition 66 by "financing the scheme to deceive likely voters, using nearly $4 million dollars derived from allegedly unlawful activities." (Id. at ¶ 54.)

On November 2, 2004, Proposition 66 was defeated. (Id. at ¶ 58.) In late 2007, Defendant Nicholas helped underwrite two crime initiatives for the November 2008 ballot, Proposition 6 ("Safe Neighborhoods Act") and Proposition 9 ("Marsy's Law"). Plaintiff alleges Defendant Nicholas invested $5.9 million dollars to qualify both measures for the November 4, 2008 election. (Id. at ¶ 68.)

On May 14, 2008, the Securities and Exchange Commission ("SEC") filed a complaint against Defendant Nicholas and Broadcom officers Henry Samueli, William J. Ruehle and David Dull wherein Broadcom officers were "alleged to have orchestrated and perpetuated the largest-ever scheme that involved fraudulent stock options backdating, falsifying corporate records, intentionally false accounting and lying to shareholders, for personal gain." (Id. at ¶ 70.)

On June 4, 2008, a federal grand jury indictment against Defendant Nicholas was filed which charged him with conspiracy to distribute and possess with intent to distribute controlled substances; conspiracy to acquire controlled substances by fraud and deception; and maintaining and using a place for the purpose of distributing and using controlled substances. (Id. at ¶ 72.)

Plaintiff alleges that Defendant Nicholas gave $25 million dollars derived from illegal activities to Defendant Justice for Homicide Victims to finance Defendant Nicholas' ongoing public policy enterprises and objectives. (Id. at ¶ 73.)


Plaintiff's first claim for relief is a civil RICO claim "Investment of Racketeering Income" in violation of 18 U.S.C. §1962(a) by Defendant Nicholas. Plaintiff alleges that Defendant Nicholas through the enterprise of his company Broadcom conspired to distribute narcotics. Plaintiff alleges various predicate acts to further the narcotics conspiracy and then alleges unlawful investment of racketeering income in violation of 18 U.S.C. §1962(a). (Id. at ¶¶ 80-92.) Plaintiff alleges that Defendant Nicholas used part of his racketeering income (approximately $3.5 million dollars) in the formation and operation of a public policy enterprise which is comprised of a group of individuals associated for a common or shared purpose of knowingly influencing California's public policy, which was to defeat Proposition 66, a Three Strikes reform initiative, and prevent resentencing hearings for qualified individuals including Plaintiff. (Id. at ¶ 100.)

Plaintiff alleges in 2006 Defendant Nicholas used $157,000 of his racketeering income to fund Proposition 83 ("Jessica's Law"). In 2007, Defendant Nicholas authored Proposition 9 ("Marsy's Law") and in 2008 Defendant Nicholas used his racketeering income to collect signatures to qualify Proposition 6 ("Safe Neighborhoods Act") for the November 4, 2008 ballot. (Id. at ¶ 102.)

Plaintiff alleges as a proximate result of Defendant Nicholas' unlawful investment, Plaintiff has been directly "injured in his business or property" within the meaning of 18 U.S.C. ยง1964(c). Specifically, Plaintiff alleges he was directly and distinctly injured by being deprived of a resentencing hearing and immediate release from prison under Proposition 66, which would have resulted in gainful employment as a paralegal and/or self-employment opportunities, to wit, ...

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