FRAUD ON—and in—THE COURT

Copyright © 2022 D’Arcy Straub

All rights reserved. This book or any portion thereof may not be reproduced or used in any manner whatsoever without the express written permission of the publisher except for the use of brief quotations in a book review.

Print ISBN: 978-1-66781-830-6

eBook ISBN: 978-1-66781-831-3

FRAUD ON—and in—THE COURT

Preface

Chapter 1 My Troubled Teen Years

Chapter 2 I Like Mountains and Science

Chapter 3 The Colorado Mountain Club and PeakRegister.com

Chapter 4 A Virtual Peak Register and Law School

Chapter 5 An Attorney Who Represents Himself Has a Fool for a Client

Chapter 6 Law School Taught Me Nothing about This

Chapter 7 A Judicial Misconduct Complaint and a Motion for Fraud on the Court

Chapter 8 Introducing Arnie Zaler

Chapter 9 Let’s Try Some 2255 Motions

Chapter 10 Justice Gorsuch’s Bias for His Hero

Epilogue What About Arnie?

Preface

Years ago, I discovered evidence involving the corruption of federal judges, including Supreme Court Justice Neil Gorsuch. Believing people still care about the integrity of their government, I wrote FRAUD ON—and in—THE COURT to detail my allegations. But given today’s caustic society that routinely fosters allegations of corruption against high-ranking government officials, perhaps people have become indifferent to the never-ending stream of accusations.

During the course of writing this book, I often wondered, for whom am I writing this book? Am I writing the book so that I can cast yet one more accusatory stone and avenge the federal judges who ruled against me? Or am I writing the book so that society can maintain the strictest ethical standards at the highest levels of government?

Only recently did I realize that my story isn’t actually about FRAUD ON—and in—THE COURT. Rather, on the deepest thematic level, this book addresses human bias. If the seven deadly sins are wrath, avarice, sloth, pride, lust, envy, and gluttony, then the eighth sin is the bias for one’s self. And perhaps each of the capital vices finds its origin in this innate, inescapable bias.

People loathe admitting to their bias. Acknowledging a bias indicates a weakness in one’s opinion and conceding the appalling possibility that one could be wrong. Worse yet, a biased opinion suggests that contrasting viewpoints should be considered to gain a more complete understanding of the issue. With that said, one readily grasps that it’s far better to dismiss and ignore one’s bias and conclude a priori that others need not be heard because they are dead wrong. And probably stupid, too.

America stands divided, and the calls for unity seem unrealistic—how can a largely heterogenous population with vastly different opinions be united? Expecting the emergence of a Utopia free of conflict is not realistic. Nonetheless, a sense of unity can emerge through this single act—people admit to their personal bias.

Metaphorically, we’ve become a nation of biased heads-callers and tails-callers. People have flipped their coins and convinced themselves that their particular experience of observing heads or tails after a single flip represents the truth about the probability of a coin-flipping outcome. To support their favored view, they surround themselves with others who shared the same experience—everybody else had heads, so that’s the only possible outcome. Human bias fools a person into relying upon a sample size of one—themself—and only considering the outcome they desire.

The Dunning–Kruger effect hypothesizes that incompetent people are overly confident in their abilities, which is a consequence of inferior cognitive skills to assess one’s true ability. That makes sense, and it follows that many people lack the mental acuity to recognize, and thus acknowledge, their personal bias. People will persist with their biased opinion for they cannot escape the effect of their poor cognitive skills.

While intelligence suppresses the negative aspects of the Dunning–Kruger effect, intelligence can perniciously reinforce human bias. Rather than spawning recognition and admission to a bias, intelligence can justify a position through logical reasoning. The reliance upon logic blinds the individual to their bias, and perhaps Richard Feynman, who won the Nobel Prize in physics in 1965, may have summed it up best: The first principle is that you must not fool yourself—and you are the easiest person to fool.

Failure to recognize one’s bias is not without consequence. Consider two coin-flippers with these contrasting views: I wanted heads, but I understand the opposing outcome. Or, it should’ve been heads, and this is WRONG! Unfortunately, the incorrigible bias of the latter frequently instigates the deadly sin of wrath and all its ugliness, including inward woe and outward hatred.

Acknowledging a bias will rarely change one’s belief. Visceral feelings lead people to believe what they want to believe. While considering another viewpoint may occasionally lead to compromise, the real value of acknowledging one’s bias rests in the realization of one’s shortcomings as a human being. People who acknowledge their own faults to each other achieve unity, and consequently they are more likely to treat each other with civility.

And then there’s reality. Human bias is as devastating to the world as the worst virus—no vaccine can cure this blight on humanity. While I offer a few suggestions in this book for combating human bias within society, I’m more concerned with my own bias—what facts or events within this book am I misinterpreting or misrepresenting because of the human bias I cannot escape?

With that acknowledgment of bias, here is my story.

Chapter 1

My Troubled Teen Years

The law. Within the realm of human experience, little else possesses as many facets as the law. The law can secure a citizenry’s freedom or fortify a dictator’s oppression. It can catalyze human ingenuity or stifle a person’s ambition. It can provide a sense of security that legislation will remedy a societal issue, or cultivate hopelessness among citizens who await their country’s collapse. The law can buttress morality or foster depravity. It can impose the religious beliefs of a powerful majority, or crush the political beliefs of a beleaguered minority.

On a personal level, the law possesses the ability to simultaneously terrify, comfort, and entertain. An innocent man standing trial for a high-profile murder is terrified. Upon hearing guilty in the courtroom, the faulty verdict comforts the victim’s family members, who erroneously believe that justice has been served. And the media entertains the general public by debating the evidence that may not satisfy the legal burden of reasonable doubt. All of the above spring from the same source—the law.

The law defines people. Does one value and respect the law? Or is the law something that one usually skirts, and only supports hypocritically, when it aligns with a personal interest? My observations in Colorado, where I live, suggest that most drivers routinely exceed the speed limit. I believe this behavior subtly erodes our country’s values, as we convince ourselves that the law need only be followed when we agree with it.

I’m a cyclist, and I’ll admit to cruising through stop signs when it’s safe to do so. While my illegal cycling doesn’t affect other motorists or pedestrians, I occasionally draw a disapproving glare from a driver who thinks I’m a corrupt lawbreaker. As they speed away, I think, and you similarly respect the law by holding to the speed limit?

I’m an advocate for traffic laws that reflect drivers’ typical habits. Perhaps speed limits are rarely enforced because the speeders create a dynamic traffic flow that facilitates its movement. Imagine the difficulty of changing lanes on a congested road if every vehicle traveled at the same speed. The variable velocity of cars facilitates traffic flow, but the commonplace lawbreaking reinforces the philosophy that it’s acceptable to break the law if we disagree with it.

This kind of routine lawbreaking reminds me of a metaphor I first heard from a federal judge who was lecturing law students on ethics. As the metaphor goes, a person has two choices in cooking a frog. One can toss a frog into a pot of boiling water, but it will instinctively react to the heat and jump out to cheat death. Alternatively, one can place a frog in a pot of warm water and slowly turn up the heat. The frog experiences no initial discomfort, and as the heat is gradually increased, it becomes lethargic and fails to detect the deadly change in temperature. The judge used this metaphor to caution the students to heed their everyday conduct as attorneys, lest one day they find themselves imperceptibly changed from honest to unethical people.

Like the frog that fails to detect the gradual changes that ultimately destroy it, we are slowly becoming—or have already become—a society that accepts disrespect for the law, and I suggest that some of this starts with our driving habits. I see it in myself as I rationalize the legitimacy of my illegal conduct as both a cyclist and motorist. To remedy the problem, new traffic laws are needed that transform a vast amount of illegal conduct into legal conduct, accommodate the complexities of traffic flow, and are easily understood by motorists.

Perhaps, at the time of issuing or renewing a driver’s license, the state charges $5 to allow a driver or cyclist to break traffic laws within reason—for example, to drive 10 miles over the speed limit, but not drive under the influence. In essence, it’s a license to substitute personal judgment over rigid traffic laws while preventing the disparagement of the law. The $5 fee is optional to gauge society’s respect for the law, as a person who values $5 more than the law has little regard for the latter. People who refuse the $5 fee can expect a $250 fine for any traffic offense. Sometimes education comes at a cost.

The law permeates people’s lives every day, and the happy person minimizes their interaction with it. My first direct contact with the law occurred as a teenager, and it was an unwelcome experience. I was a conservative soul in high school but felt the temptation to mess around and have some fun, like many teens. But if one makes a habit of playing with matches, an attorney might soon be called upon to extinguish a fire.

I attended Littleton High School, which was one of the larger high schools in the Denver metropolitan area in the early 1980s. I had a great group of guy friends in high school, and we have largely stayed in touch into our 50s. We represented the nerd chapter of LHS, the ones who went from advanced placement class to advanced placement class our senior year. Nonetheless, through some act of God we had girlfriends in our senior year, though most of them attended different schools. The local girls knew better. My girlfriend Wendy went to Estes Park High School, Mark’s girlfriend went to Brush High School, and Chris’s girlfriend went to Columbine High School.

Having a long-distance girlfriend typically created a void in my life on Friday and Saturday nights. Attempting to fill a need for weekend entertainment, my friends and I developed what we called a 7-Eleven, after the convenience store known for its Slurpee. I have no idea how we came upon this idea of a 7-Eleven, but it went something like this.

One of my buddies runs into a 7-Eleven in the quiet suburb of Littleton, with a little dirt on his face and a black winter hat on his head, giving the impression that the local posse is in hot pursuit. Looking nervously over his shoulder, he hands the clerk a $20 bill and asks for two tens. After receiving the bills, he darts out of the store.

About 15 minutes later, my remaining friends and I drive into the store’s parking lot, jump out of the car, and sprint inside with a score to settle. In a rush, I leave the driver’s door ajar and the engine running. Inside, we question the clerk: Hey, have you seen a guy about six feet tall, wearing a black hat? He stole $20 from us.

Every clerk that we targeted for our weekend entertainment jumped into the developing fracas. While $20 isn’t much money, our theatrics provided far more excitement than the humdrum request, Pack of Camels.

The clerk replies, He was in here 15 minutes ago and shaking like a leaf!

The climax of the theatrical production comes when the clerk spots my buddy sneaking up to the car with its engine running and exclaims, Hey, there he is now! He’s stealing your car! Yes, we had a reason to leave the engine running and the driver’s door open.

As my buddy jumps into the car and peels out of the parking lot, we burst from the store and run after him. A block or so later, out of view of the clerk, we catch up to our friend, parked and waiting for us. We’d share cheery laughter and high-fives. Good innocent fun, staging the crime of auto theft. What could possibly go wrong?

The 7-Eleven show traveled well. While visiting crosstown friends on a fall Friday night, I explained the idea and they were game for a little fun. With my experience, I took the role of the auto thief and all was going according to plan as I jumped into my car to steal it. Unfortunately for me, there are Good Samaritans in society, and I happened to cross paths with one on that particular night. As a guy saw me pulling out of the parking space, he strategically positioned his car behind mine and I was boxed in. Panicking because I didn’t want to go to jail for the theft of my own car, I backed into his car. Not too smart.

The conversation with my parents the next day was interesting. Mom, Dad, I need a couple hundred bucks… to fix some guy’s car I banged up while doing a 7-Eleven.

What?

So ended my days of 7-Elevens.

But that didn’t deter my friends. Home from college for Christmas break years later, my buddies decided it was time for a 7-Eleven for old times’ sake. Not too enthused with the idea, I agreed to go along but limited my participation to that of a bystander outside the 7-Eleven. I would play neither pursuer nor thief.

Things varied a bit from our past productions, as some friends in our company didn’t know how to execute a 7-Eleven. Three of them elected to remain in the car. That was of no concern to my friend Stu, who always relished the role of car thief. As he had done many times before, he leapt into the car, which on this particular evening was my mother’s Cadillac, at the appropriate moment as the thief. Laying down a little rubber as he sped out of the 7-Eleven parking lot, Stu was a spectacularly convincing thief. Indeed, it didn’t take but a second for a patrol car parked a few hundred feet away to flash its lights and begin pursuit.

The chase didn’t last long. As I walked up to the scene a moment later, I saw my friends in the car with their hands in the air. Well, this was certainly a spicy twist. Let’s toy with the local police as well, I thought.

I introduced myself. Hello, Officer, let me explain. This is actually my mother’s car, and these are my friends, who are only pretending to steal a car during a 7-Eleven.

What?

Somewhat perplexed, the officer radioed his supervisor. All of us got off scot-free, except for Stu, who received a ticket for reckless driving. And so ended all of my friends’ participation in 7-Elevens, but I’d say we finished on a strong note.

But keep in mind that through all of my 7-Elevens, I never needed an attorney.

My friends and I weren’t so bored that we played Grand Theft Auto every weekend. We also liked to bowl. Bowling is a good, clean sport, and it’s hard to fathom how high school students could get in trouble by bowling. But again, creative mischief was the goal.

After leaving a bowling alley one evening, we found ourselves with one of the house bowling balls in our car. Naturally, returning it would have been the right thing to do, but we came up with an alternate plan—we decided to leave the ball in my neighbor’s mailbox. There was nothing special about this neighbor; they just happened to have a mailbox large enough to accommodate a bowling ball. Imagine the surprise when they opened their mailbox the next day.

We liked to bowl and did so quite frequently, so we had plenty of opportunities to gift bowling balls to my neighbor. Over the course of our years in high school, we left three more bowling balls at his residence. Although my friends and I thought this good, clean fun—except for the petty crime of stealing the balls—apparently the unwanted gifts took an emotional toll on him. When we tried to leave our fourth and final bowling ball, we discovered that he had downsized his mailbox so that he would no longer be victimized. We left the last ball on his porch and called it good.

Again, note that I successfully navigated repeated bowling-ball thievery without ever needing an attorney.

My brother Derek is six years my senior. My father introduced him to electronics at a young age, and he naturally gravitated to computers beginning in the mid-70s. As a high school student, Derek built an Altair 8800 home computer kit, complete with a bountiful 4KB of memory. (Yes, you read that correctly.) He attended Cal Tech, and during one summer vacation, my father hired Derek as a computer programmer for his accounting business, a job that frequently required long hours.

My brother came home near midnight one Friday evening as I watched Fridays, a short-lived attempt by ABC in the early 80s to capture the same magic as NBC’s Saturday Night Live. We discussed a pile of topsoil that one of our neighbors had left sitting on the street for a month. It wasn’t so much the topsoil on the street, but its position at the apex of a gradual turn prevented my brother from taking the corner like an Indy 500 driver. That was annoying, so the topsoil needed to go.

We knew we couldn’t open the automatic garage door lest the grinding of the motor wake our parents. Taking a wheelbarrow, shovels, and brooms from the garage and leaving through the family room door, we were soon shoveling dirt in the middle of the night. We deposited the topsoil about 100 feet away in another neighbor’s yard, figuring his xeriscape garden could take it without issue. We recognized the need to remain quiet to let people sleep, but we couldn’t help scraping the shovels on the pavement. After an hour or so, we finished the job. We envisioned our neighbor waking up in the morning and upon not seeing his topsoil wondering, what?

Unfortunately, we made one mistake. When we exited our house, we took the wheelbarrow across a couple of lawns, and when making our way home, we noticed an easily identifiable track in the lawn leading to our house. Of course, this would allow our neighbor to deduce who had removed his topsoil. To remedy this error, I jumped into the wheelbarrow and Derek pushed me around many of our neighbors’ lawns to create a confusing maze of tracks. A good idea, we thought, until a patrol car pulled up and an officer asked us what we were doing. We had no good answer and should perhaps have exercised our right to remain silent.

Although we tried to be quiet, our efforts awakened a neighbor. He said he watched us for quite a while and couldn’t figure out why we were removing dirt from the street so early in the morning. Eventually, he called the police to get to the bottom of the issue.

My parents received a phone call from the police near 2:00 am, and an officer explained to my father that his two sons were being detained down the street for moving dirt.

What?

My father soon arrived to talk with the police, but essentially that was all that came of the incident. In the end, my brother and I did nothing more than do our neighbor a favor, for he no longer had any use for the topsoil. Our parents weren’t too happy with us, but removing topsoil from the street late at night isn’t the type of thing that precipitates a life of crime.

But again, take note that I had no need for an attorney. I might have been grounded, but I can’t remember for sure. Let’s say that my parents grounded me, so that you don’t think less of their parenting skills. After all, some readers might be thinking, where were this kid’s parents?

I attended the Frontiers of Science Institute (FSI) at the University of Northern Colorado before my senior year in the summer of 1983. FSI was a ten-week science-based program attended by about 30 high school students from across Colorado. It was there that I met Wendy, a proper girl from Estes Park. Wendy was the type of girl who could keep a guy from 7-Elevens or bowling-ball thievery, but only if she were around to steer him in the right direction. The two-hour drive between Littleton and Estes Park meant we could see each other only on occasion.

During one visit to Estes Park near my birthday in October 1983, Wendy handed me a present. I immediately recognized it as a book, but only upon unwrapping it did I see what I have come to regard—for better or for worse—as one of my more memorable birthday gifts. During the summer at FSI, Wendy had frequently overheard me and my friend talk about The Anarchist Cookbook. Thanks to my thoughtful girlfriend, I now had my own copy. What a gift! What a girl! Just as Ralphie wanted a Red Ryder Air Rifle in A Christmas Story, D’Arcy wanted The Anarchist Cookbook.

For those unfamiliar with The Anarchist Cookbook, a cursory review of its primary sections indicates the nature of the book: 1) Drugs; 2) Electronics, Sabotage, and Surveillance; 3) Natural, Nonlethal, and Lethal Weapons; and 4) Explosives and Booby Traps. Wendy had ordered a copy from her small-town bookstore without truly understanding what she was ordering. When the book arrived, the owner, who knew her as a proper girl, phoned her somewhat bewildered to ask, "Wendy, did you order The Anarchist Cookbook?"

There was some dark stuff in The Anarchist Cookbook that wasn’t suitable for a proper girl from Estes Park, and the author, William Powell, later renounced the book. The original version is no longer available to anybody. Try to order it on Amazon. It can’t be done. However, I did see an original copy for sale on eBay for $500.

I have never used drugs, but I found the section on drugs to be entertaining. Apparently, banana peels possess a psychedelic effect, and Powell gives a recipe for bananadine. The recipe calls for 15 pounds of ripe yellow bananas and to peel all 15 lbs. and eat the fruit. Save the peels. I always got a chuckle out of the stoned idiot who would try to eat all of those bananas. Perhaps I’m not a nice person.

My favorite subject in high school was chemistry, and the Cookbook’s section on explosives fascinated me. For better or for worse, one of our FSI instructors taught us how to make an extremely unstable explosive called nitrogen tri-iodide, or NI3, that can spontaneously explode soon after synthesis. The Anarchist Cookbook states, Probably the most hazardous explosive compound of all is nitrogen tri-iodide. Strangely enough, it is very popular with high school chemists, who do not have the vaguest idea of what they are doing. Yes, that would have been me, but Wendy inscribed the inside front cover of the book with sound advice: Live long and prosper, but above all…please be careful! Just as Ralphie didn’t shoot his eye out, I didn’t blow myself up. It all turned out okay.

And nothing in The Anarchist Cookbook ever led me to needing an attorney.

So far, so good, but now we come to the strike of my last match where fate catches up to me. It was a pleasant fall morning during my senior year at Littleton High, and a couple of my friends and I decided to leave campus between classes. I have long since forgotten why. But I do remember cruising around a nearby neighborhood and trying to see how close I could come to hitting the trash cans sitting on the curb.

A lady took note and, displaying an utter lack of appreciation for my driving skills—I didn’t hit one can—called the police. As we were leaving the neighborhood, the police caught up with me, and I received a ticket for reckless driving. Thus began my unwelcome foray into the legal system, where I might need the aid of an attorney to put out a legal flare-up.

As luck would have it, my friend Mark’s father practiced law. When you’re 17, a lawyer is a lawyer is a lawyer. I don’t even know how he came to represent me. Perhaps a phone call from my father, but there was Mark’s father, helping me out while I made my appearance. The passage of time has eroded my memories of the day, but I do remember him giving me a little talk on safe driving. Fair enough, and my court appearance soon ended with a few points on my driving record. A month later, near Christmas, I received a bumper sticker from Mark’s father that read, If you don’t like the way I drive, stay off the sidewalks.

Years later, my friends and I were watching TV in Mark’s basement. It was summer and we had recently graduated from college. Mark decided to follow his father into the law, and as he explained it to us, the top four law schools were generally regarded as Harvard, Michigan, Yale, and Stanford. He would be studying law at Stanford in the fall, while his father was a Michigan alumnus. Mark also mentioned that his father had graduated at the top of his class. A class rank of one at Michigan can open the door to great opportunities.

In Mark’s father’s case, he clerked for Supreme Court Justice Byron White in 1965 and 1966 and left private practice in 1988 to sit on the Tenth Circuit Court of Appeals as Judge David Ebel. For those unfamiliar with the legal system, the federal judiciary consists of district courts, appellate courts, and the Supreme Court. Each state has at least one district court where trials are held. The appellate courts hear appeals from the district courts, and the federal judiciary has thirteen appellate courts. And finally, everybody has heard of the Supreme Court because their cases are reported in the news, as their rulings can greatly impact society. Sitting on the Tenth Circuit is one level below that of a Supreme Court justice, and that’s not too bad a feather to stick in one’s cap. I always revered my friend’s father, who became a federal appellate judge.

Looking back now, I chuckle to think that I pulled one of Colorado’s finest attorneys from his office for a mere driving ticket. Had I known any better, I might have told Mark’s father, Sure, I’m guilty as sin, but with you, we can beat this thing!

As noted earlier, the law has many facets. It can terrify, it can entertain… and it can be dreadfully boring. To tell the story of FRAUD ON—and in—THE COURT, I must rely upon the legal arguments presented in the related briefs and court opinions, and almost nobody reads these documents for entertainment. To provide a little flavor and explore the effects of human bias upon our society, I’ll occasionally discuss contemporary issues and thought-provoking topics that may seem to have little relevance to my primary story. Nonetheless, when a topic holds little interest to the reader, please feel free to skim the material—no hard feelings on my end.

Several years ago, while I was still a fan of Saturday Night Live, I’d occasionally watch the beginning of Your Move with Andy Stanley, a show that immediately followed SNL in the Denver market. Stanley is a pastor at North Point Community Church, a non-denominational, evangelical Christian megachurch near Atlanta. He is a gifted speaker, and his sermons would initially capture my attention, but being spiritual but not religious, I’d soon opt for sleep. One night, however, Andy successfully set the hook when—as best as I can recall—he began his show with the question, Do you think Christians are hypocrites? Intrigued, I finally watched an entire episode of Your Move, and every episode thereafter in the associated series, Christianity.

The Christianity series sparked my interest in religion, and I learned more about Christianity and the Bible through