Motion And Memorandum In Support Of Motion To Strike Complaint For Protection From Harassment And To Strike Any Subsequent Order(s) On Account Of Fraud On The Court
Page 1
Aaron Greenspan (Pro Se)
956 Carolina Street
San Francisco, CA 94107-Phone: +1 415 670 Fax: +1 415 373 E-Mail: aaron.greenspan@plainsite.org
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss.
SUPERIOR COURT
CIVIL ACTION NO. 1981CV
DIEGO MASMARQUES, JR.,
Petitioner,
v.
AARON GREENSPAN,
Respondent.
MOTION AND MEMORANDUM IN SUPPORT OF MOTION TO STRIKE
COMPLAINT FOR PROTECTION FROM HARASSMENT AND TO STRIKE ANY
SUBSEQUENT ORDER(S) ON ACCOUNT OF FRAUD ON THE COURT
Respondent Aaron Greenspan respectfully moves the Court to strike, or in the alternative,
to dismiss and seal, the complaint of Petitioner Diego MasMarques, Jr. in the above case, as well
as any subsequent resulting order(s). This Motion is supported by the following memorandum.
I.
Introduction
Respondent is a data journalist and a former CodeX Fellow at Stanford Law School.
Following more than two years of sustained telephone, e-mail and internet harassment by
Petitioner Diego MasMarques, Jr., on November 15, 2018, the Marlborough, Massachusetts
Police Prosecutor brought charges against Petitioner of Criminal Harassment in violation of Mass.
MOTION TO STRIKE COMPLAINT FOR
PROTECTION FROM HARASSMENT AND
SUBSEQUENT ORDER(S)
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General Laws Chapter 265 § 43A(a) and Harassment in Violation of a Prevention Order in
violation of Mass. General Laws Chapter 258E § 9. On November 28, 2018, the Marlborough
District Court found probable cause for both of those offenses, and a criminal complaint issued
against Petitioner with Docket No. 1821CR001157. The matter is presently pending.
Petitioner murdered his ex-girlfriend in Spain in 1999 and was convicted of murder by a
Spanish jury in 2000, after which Petitioner was extradited to the United States to serve time in
federal prison. Now free, Petitioner wishes for all records of his extensive criminal history to
vanish forever from the internet. But this is not to be, as four judges (two federal judges and two
state judges or magistrates) have now denied Petitioner’s attempts to seal his many cases and to
exact retribution against those who dare to publish public records involving them. These
proceedings are nothing more than Petitioner’s latest attempt to retaliate against Respondent,
whose company and non-profit organization work to publish court records.
Previously, on July 3, 2018, Petitioner filed a fraudulent and baseless cross-request for a
restraining order against Respondent because Respondent secured a five-year restraining order
against him based in Santa Clara County, California on June 19, 2018. After over ten hours of
hearing testimony over ten months, Petitioner’s cross-request was finally denied on August 30,
2019 by Santa Clara Superior Court Judge Carol Overton. A new two-year restraining order was
imposed against him. In addition, after the Marlborough Police prosecutor filed the
aforementioned criminal charges against Petitioner on November 15, 2018, for which probable
cause was found on November 28, 2018, Petitioner himself fraudulently applied for criminal
charges to be lodged against Respondent on April 8, 2019. No probable cause for charges against
Respondent was found, and on May 15, 2019, Petitioner’s application was summarily dismissed.
See Exhibit B.
Petitioner, who has continued harassing Respondent even since the criminal complaint
against him was issued, has now filed this duplicative cross-request for a restraining order against
MOTION TO STRIKE COMPLAINT FOR
PROTECTION FROM HARASSMENT AND
SUBSEQUENT ORDER(S)
1981CV02204Page 3
Respondent in an effort to undermine the authority of Judge Overton in California, who just
ruled against him. This is part of a pattern, as all of these myriad proceedings represent
Petitioner’s fundamental yet unattainable desire to undermine the federal judiciary, which
repeatedly denied his baseless motions to seal his criminal cases. Petitioner’s complaint here—one
of numerous baseless and vexatious complaints Petitioner has filed with various government
agencies regarding Respondent—is completely unfounded. Petitioner has left no “stone unturned
which he could possibly move.” Commonwealth v. Edgerly, 6 Mass. App. Ct. 241, 266 (1978).
“An examination of the history of this litigation as disclosed in the pleadings and docket
entries...shows an undue multiplicity of [filings] pursued to unreasonable lengths,” Boyagian v.
Hart, 312 Mass. 264, 266 (1942). Accordingly, the complaint should be summarily dismissed,
struck, and expunged (or in the alternative, sealed), for failure to state a claim, lack of jurisdiction,
lack of service of process, and/or res judicata.
II.
Argument
A. Judge Carol Overton Has Already Ruled Against Petitioner
Petitioner had a complete opportunity to make his case in the Superior Court of Santa
Clara County. Petitioner flew from the Boston area to San Jose, California three times to appear in
person for three different hearings: on December 12, 2018; on February 28, 2019; and finally on
May 2, 2019. He appeared at additional hearings telephonically. During these hearings, in the
course of his testimony Petitioner perjured himself no fewer than thirty (30) times. Ultimately,
he lost when his cross-request was firmly denied on August 30, 2019. As Judge Overton wrote,
“[T]he Court notes that [Petitioner] conceded during his hearing testimony that information
[Respondent] published concerning his criminal record had not been sealed. Thus, such
information was a matter of public record. [Petitioner] did not otherwise persuasively establish by
clear and convincing evidence that [Respondent] engaged in unlawful harassment warranting
issuance of a further restraining order after hearing.” See Exhibit A.
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PROTECTION FROM HARASSMENT AND
SUBSEQUENT ORDER(S)
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“‘The doctrine of claim preclusion makes a valid, final judgment conclusive on the parties
and their privies, and bars further litigation of all matters that were or should have been
adjudicated in the action.’ Heacock v. Heacock, 402 Mass. 21, 23 (1988). Claim preclusion has
three elements: ‘(1) the identity or privity of the parties to the present and prior actions, (2)
identity of the cause of action, and (3) prior final judgment on the merits.’ DaLuz v. Department
of Correction, 434 Mass. 40, 45 (2001).” Decoulos v. O’Keefe, 18-P-376, at *2 (Mass. App. Ct. Mar.
7, 2019). All three elements of the claim preclusion test are met in this case. There are no
underlying factual differences between the Santa Clara proceedings and these proceedings
whatsoever.
B. Petitioner’s Complaint Is Entirely Based Upon an Invalid, Unenforceable,
and Expired Counter-Temporary Restraining Order
Petitioner’s complaint in this case, dated July 29, 2019, requests a restraining order under
Massachusetts General Laws Chapter 258E, specifically as a derivative of Case No. 18CHin the Superior Court of Santa Clara County, California—the “CALIFORNIA RESTRAINING
ORDER” referred to in the complaint. The alleged dates when offenses were committed are
“10/8/2019” (as of this moment, in the future), “11/6/19” (also in the future)” and “3/2/19.”
Petitioner has a documented history of mental illness and his complaint is a confabulatory
mess. Respondent lives thousands of miles from Petitioner, and no contact of any kind took
place between Respondent and Petitioner on any of the above dates. Nor did Respondent
author any harassing or intimidating content on any of these dates or any other dates. Rather,
Petitioner persistently misconstrues any discussion of him whatsoever, by anyone—even a
reference to a public domain newspaper article, for example—to be “harassing” and “terrorizing,”
presumably because of his illness, and for these supposed crimes he blames a small group of
individuals who publish court cases, including Respondent.
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SUBSEQUENT ORDER(S)
1981CV0220Page 5
The specific “CALIFORNIA RESTRAINING ORDER” document cited by Petitioner
in his complaint is a counter-Temporary Restraining Order (the “Counter-TRO”) that
Petitioner applied for in an earlier act of retribution, after Respondent initially secured a five-year
permanent restraining order against Petitioner effective on June 19, 2018. Petitioner’s Counter-
TRO was automatically granted on July 3, 2018 by submitting Judicial Council of California
Form CH-100 on that same day. Based on the false representations made in Petitioner’s Form
CH-100, Superior Court Judge Deborah Ryan (who was unfamiliar with the case) granted
Petitioner’s request and waived his filing fee.
1. The Now-Expired Counter-TRO Was Invalid Because Petitioner Did
Not Pay The Requisite Filing Fee
California courts waive filing fees for restraining order applications where the applicant
warrants that any of three conditions are true:
a.
“There should be no filing fee because the [Respondent] has used or threatened
to use violence against me, has stalked me, or has acted or spoken in some
other way that makes me reasonably fear violence.”
b.
“The sheriff or marshal should serve (notify) the [Respondent] about the orders
for free because my request for orders is based on unlawful violence, a credible
threat of violence, or stalking.”
c.
“There should be no filing fee and the sheriff or marshal should serve the
[Respondent] for free because I am entitled to a fee waiver. (You must
complete and file form FW-001, Application for Waiver of Court Fees and
Costs.)”
California Code of Civil Procedure § 527.6(y); Judicial Council of California Form CH-100.
On page 5 of Form CH-100, Petitioner checked the boxes corresponding to (a) and (b)
above, despite the fact that Respondent has never used or threatened to use violence against him,
and has never stalked Respondent (and unlike Petitioner, has no criminal record or history of
violent acts). Accordingly, Petitioner was and is required to pay the filing fee by law.
“Stalking” in the context of California Code of Civil Procedure § 527.6, which governs civil harassment restraining
orders, is defined in California Penal Code § 646.9(a), and does not apply to routine publication of public records.
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He did not. To reiterate, Petitioner has a documented tendency to misconstrue the
availability of any information about him on the internet—even public record information—as
“harassing, stalking, terrorizing, and online bullying” by whomever the publisher happens to be.
Respondent’s company and non-profit organization jointly run a website called PlainSite that lists
several of Petitioner’s federal civil and criminal court cases among millions of others.2 Petitioner
has attempted to seal his cases in court repeatedly, and each motion to seal has been firmly denied.
See Exhibits C and D. Rather than honor the decision of United States District Court Judge
Mark L. Wolf, or the decision of United States Court of Appeals for the First Circuit Judge
Sandra L. Lynch—both of whom denied his motions to seal—Petitioner decided to do an end-
run around the federal courts by lying his way to a nominal restraining order in state court against
one publisher of the content instead: Respondent Aaron Greenspan.
As a direct result of those falsehoods, Santa Clara County Superior Court Judge Deborah
Ryan granted Petitioner’s improper request for a fee waiver, tainting the resulting Counter-TRO
and rendering it invalid until at least such time as the proper filing fee is paid.
2. The Now-Expired Counter-TRO Was Invalid Because Respondent
Did Not Reside in Santa Clara County When It Was Applied For or
Issued
The Santa Clara County Superior Court lacked jurisdiction to issue the Counter-TRO,
but issued the invalid order nonetheless. In large part due to Petitioner’s harassment, Respondent
moved on June 26, 2018, leaving Santa Clara County. Respondent spent the remainder of June,
July, August, and part of September with his family in Ohio. When Respondent returned to
California on September 5, 2018, he lived in San Francisco County. Nonetheless, in response to
the “Venue” question, “Why are you filing in [Santa Clara] county?” Petitioner indicated on
page 2 of Form CH-100 that as of June 28, 2018, “[Respondent] lives in [Santa Clara] county;”
PlainSite is not the only website that has listed Petitioner’s public record cases. In addition, Leagle.com,
CourtListener, and UnitedStatesCourts.org have indexed or currently index Petitioner’s cases. According to its
founder, UnitedStatesCourts.org is no longer operational in part because of Petitioner’s relentless harassment.
MOTION TO STRIKE COMPLAINT FOR
PROTECTION FROM HARASSMENT AND
SUBSEQUENT ORDER(S)
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that “[Petitioner] was harassed by [Respondent] in this county” and “AARON JACOB
GREENSPAN IS USING COMPUTERS BASED OUT OF THIS COUNTY.” None of
those statements were true as of the date of filing, and the second statement was never true.
Furthermore, PlainSite’s servers are not based in Santa Clara County.
3. Petitioner Made Numerous False Claims Under Penalty Of Perjury
To Deceive The Court Into Granting His Now-Expired CounterTRO
Petitioner signed his name on page 6 of Form CH-100 on June 28, 2018 just after the
statement, “I declare under penalty of perjury under the laws of the State of California that the
information above and on all attachments is true and correct.” Nonetheless, several of the
representations made by Petitioner, in Petitioner’s handwriting, are false. Specifically:
a) Respondent is “selectively downloading legal documents from PACER.”
(Form CH-100, Page 1)
This is false. Petitioner is a criminal defendant in numerous court dockets across
the country, many of which are not even posted on PlainSite. Respondent has
made no effort to selectively post dockets related to Petitioner and prior to his
harassment campaign, Respondent had no idea who he even was. Furthermore,
documents on PACER not already under seal are in the public domain.
Respondent has a First Amendment right to publish, through Think Computer
Corporation, Think Computer Foundation, or any other entity, any public
domain materials. Petitioner’s allegations about “sealed” documents stem from his
own confusion or deliberate lying.
b) “…he is sending selective documents to people and agencies where I have filed
complaints against him.”
(Form CH-100, Page 1)
This is false. Nonetheless, Respondent has a First Amendment right to
communicate with law enforcement agencies about Petitioner’s unlawful behavior,
especially insofar as it is harassing and violates the initial restraining order against
him.
c) “3/17;08/17;03/29/18;04/01/18 and many calls”
(Form CH-100, Page 2)
This is false; it is unclear what Petitioner is referring to on (presumably)
March 17, August 17, March 29, and April 1, 2018. Respondent did not
place any outgoing calls to Petitioner, and has refused to speak with him when
Petitioner has called repeatedly. (Petitioner or someone acting on his behalf once
MOTION TO STRIKE COMPLAINT FOR
PROTECTION FROM HARASSMENT AND
SUBSEQUENT ORDER(S)
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called from an alternative phone number and just before identifying himself as
“Diego MasMarques,” began the call with, “Shalom, Aaron,” an inappropriate and
possibly anti-Semitic reference to Respondent’s Jewish religion.) Petitioner sent
scores of e-mails, including threats, to PlainSite both using his own name and
several false names; Respondent responded only to a select few, and reasonably
each time, including on May 3, 2017 when Respondent declined Petitioner’s
attempted bribe.
d) “Mary Mas Marques who has witnessed annoying phone calls with hang ups and
an individual requesting money on behalf of Aaron Jacob Greenspan to remove
URL’s [sic] from the search engines.”
(Form CH-100, Page 2)
This is false; while it is conceivable that Petitioner’s wife may have
witnessed annoying phone calls, they had no relation to Respondent
whatsoever. Respondent has never called or authorized anyone else to call
Petitioner or his relatives, besides which no one calling on behalf of Respondent
would use his middle name in typical conversation. On the other hand,
Respondent has received several harassing phone calls and threats from Petitioner
and individuals making the same exact allegations as Petitioner.
e) “This individual has somehow gained access to sealed documents from DOJ and
unlocked sensitive documents, then uploads these documents in a selective
manner.”
(Form CH-100, Page 3)
This is false. Neither PlainSite nor Respondent has posted any sealed documents
concerning Petitioner, let alone documents from the United States Department of
Justice. In court in Santa Clara County, California on February 28, 2019,
Petitioner for the first time identified what he meant by “sealed documents:” the
docket in Massachusetts District Court Case No. 1:12-cv-11100, which is not sealed
(and is not a “DOJ” document). None of the sealed court documents linked to
that specific docket are posted at all on PlainSite. February 28, 2019 Transcript at
20:17-24:28; 82:6-12; 91:4-18.
f) “Did the person in [2] use or threaten to use a gun or any other weapon? Yes.”
(Form CH-100, Page 3)
This is completely false. Respondent does not own a gun or weapon and made
no such threat. Nor does Respondent have any history of violence or threats of
violence whatsoever (unlike Petitioner). Petitioner’s argument that Respondent’s
weapon “is his computer” is ludicrous.
g) “This individual’s weapon is his computer and hacking skills that he uses in a
malicious manner, in order to harass, stalk, terrorize, shame and defame any one at
his whim.”
(Form CH-100, Page 3)
This is false. Respondent’s computer is not reasonably classified as a “weapon.”
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PROTECTION FROM HARASSMENT AND
SUBSEQUENT ORDER(S)
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The posting of public domain materials similarly cannot be reasonably construed as
harassing, stalking, terrorizing, shaming, defamatory, or malicious.
h) “This individual has been harassing and stalking my family non-stop since March
of 2017. He has somehow gained access to sealed documents from the federal
database PACER that he selectively is [sic] uploads online.”
(Form CH-100, Page 3)
This is false. Again, Petitioner apparently regards anyone publishing information
regarding his serious crimes as “harassing, stalking, terrorizing, [and] online
bullying,” which it is not. All that transpired in March of 2017 is that Petitioner
received a notice that PlainSite would not suppress his public domain court cases.
i) “At the end of March 2018 I explained to Aaron Jacob Greenspan that if he did
not stop with the harassment that I was moving forward with a restraining order.
That was the second and last call.”
(Form CH-100, Page 5)
This is false and a complete fabrication. No such call took place. No such
advisement took place. Upon information and belief, Petitioner projects his own
thoughts and experiences onto others, including his crimes. In this case, because
Respondent obtained a restraining order against him, Petitioner now insists that he
originally warned Respondent that he would obtain a restraining order. He did
not.
j) “The Proof of Service was faulty, as the wrong person was served the court
documents on May 19, 2018.”
(Form CH-600, Page 2)
Upon information and belief, this is false. Plaintiff confirmed with the
Middlesex County Sheriff’s Office that the correct individual, Petitioner Diego
MasMarques, Jr. was served, based upon multiple photographs. Furthermore, if
the wrong individual had been served, that individual should not have accepted
the court papers from the process server.
k) “Aaron Jacob Greenspan has blatantly committed perjury at this Santa Clara
Superior Court and has lied under Oath…”
(Form CH-600, Page 2)
This is false.
l) “Aaron Jacob Greenspan then proceeded to upload a few more URL’s and has
even gone so far as to repeat the uploading of these legal documents on other
websites that this individual has created and uploaded these same documents o [sic]
third party websites.”
(Form CH-600 / Form MC-025, Page 4)
This is false. As a technical matter, URLs are not “uploaded.” Respondent has
not uploaded Petitioner’s case documents to other websites.
MOTION TO STRIKE COMPLAINT FOR
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SUBSEQUENT ORDER(S)
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m) “This entire 501(c)(3) was at first For Profit when it started in 1998 and then
changed to a Non Profit in the year 2000 and consequently was transferred to the
State of Delaware, in order to avoid turning in yearly earnings reports.”
(Form CH-600 / Form MC-025, Page 4)
Every part of this statement is false.
n) “Attorney’s Fees: 7,500; Court Costs: 2,000”
These amounts are false. On the first day he began filing in Case No.
18CH008067, Petitioner claimed that he had already paid $7,500.00 in attorney’s
fees and $2,000.00 in court costs. In fact, in connection with the case, he had paid
no attorney’s fees (Petitioner was and is not represented by an attorney in
California) and no court costs (which were waived based on his false
representations about Respondent owning a weapon, as described above).
Petitioner was simply attempting to extract $9,500.00 from Respondent using the
legal system as a vehicle for extortion.
In summary, Petitioner perjured himself no fewer than fifteen (15) times when he filed
Form CH-100 on July 3, 2018.
4. Petitioner’s Now-Expired Counter-TRO Was Never Served on
Respondent
Respondent was never served with Petitioner’s Counter-TRO. Rather, Respondent
waived service of the Counter-TRO at a court appearance on October 9, 2018 for the limited
and express purpose of contesting its many false statements. October 9, 2018 Transcript 2:21-25,
3:9-13. Consequently, even if this Court were to somehow deem the Counter-TRO valid,
which it was not, it would only be binding starting on October 9, 2018 at the point when
Respondent waived service.
5. Petitioner’s Counter-TRO Is Unconstitutional on Multiple Grounds
Petitioner’s Counter-TRO ultimately sought to enjoin Respondent from making use of
his First Amendment rights, rendering the Counter-TRO unconstitutional. “[S]peech cannot be
restricted simply because it is upsetting or arouses contempt.” Snyder v. Phelps, 131 S. Ct. 1207,
1219 (2011). Indeed, “the point of all speech protection... is to shield just those choices of
content that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay,
MOTION TO STRIKE COMPLAINT FOR
PROTECTION FROM HARASSMENT AND
SUBSEQUENT ORDER(S)
1981CV02204Page 11
Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 574, 115 S.Ct. 2338, 132 L.Ed.2d
(1995).
Furthermore, the Counter-TRO sought to enjoin Respondent from performing tasks that
are functionally impossible and/or pointless, such as “uploading” URLs to search engines for
indexing, rendering the Counter-TRO unconstitutional and moot. “It is axiomatic that this
Court cannot order a party to perform an impossible task.” United States v. Silvio, 333 F. Supp.
264, 266 (W.D. Mo. 1971). It follows that no Court can order a party to refrain from performing
an impossible task, and then subject that party to criminal penalties when someone wrongly
alleges that the impossible task was somehow performed anyway.
On May 2, 2019, Judge Overton realized that the now-expired Counter-TRO was
unconstitutional and modified it to restrict its scope to specific activities that Respondent was
already not doing. Below is a true and correct excerpt of the Counter-TRO issued May 2, 2019,
upon which all subsequent Counter-TROs were based. Note Judge Overton’s handwriting:
MOTION TO STRIKE COMPLAINT FOR
PROTECTION FROM HARASSMENT AND
SUBSEQUENT ORDER(S)
1981CV02204Page 12
Once that iteration of the Counter-TRO expired, due to space limitations on the form, it appears
that the court clerk—without checking with anyone—summarized this specific restriction with
the broader, and again unconstitutional, “not to obtain addresses, phone numbers, or any personal
data/not to upload on search engines.” Yet the court transcript from May 2, 2019 reflects Judge
Overton’s true intent. As Judge Overton admonished Petitioner, “You have to understand even
if Judge Ryan issued an order, if this Court issues an order that is overly broad in terms of
Constitutional protections, it’s going to be invalidated. You could only violate an order that is
lawful. The order has to be lawful in order to be violated.” May 2, 2019 Transcript, 119:19-23.
C. Petitioner’s Complaint In These Proceedings Is Factually False and
Misleading
Petitioner’s complaint before this Court also contains numerous false and misleading
statements. In the first place, no allegations involving the Counter-TRO can be brought for any
date prior to October 9, 2018, a fact which Petitioner has himself acknowledged in the past by
writing “HE WAS FINALLY SERVED THE R/O ON 10/09/2018” in his now-dismissed
application for criminal charges against Petitioner. (In fact, formal service was waived solely to
contest the Counter-TRO.) Petitioner has not engaged in any campaign of harassment against
Respondent, nor has Respondent ever posted on datingpsychos.com, reportcheater.com,
reportcheatingonline.com, exposecheaters.com, internetcheaters.com, badbizreports.com,
cyberextortioner.com, reportmyex.com, or reportcheatingwife.com. To the contrary,
Respondent has multitudes of evidence that Petitioner has used these and many other sites to post
thousands of harassing entries about Respondent and his family members and co-workers—which
is one of the reasons why a restraining order was granted against Petitioner. In summary,
Petitioner’s statements are the opposite of “reasonably trustworthy information…sufficient to
warrant a prudent man in believing that the defendant had committed…an offense.”
Commonwealth v. Stevens, 362 Mass. 24, 26 (1972).
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Furthermore, Petitioner checked a box on the form entitled “Defendant Information
Form As Provided By Plaintiff” indicating an answer of “yes” to “DOES DEFENDANT HAVE:
Psychiatric/emotional problems?” This is entirely false. Respondent has never been diagnosed
with any mental, psychiatric or other sort of emotional illness. Petitioner has absolutely no
evidence of any such “problems” other than his own, which are documented in the public
record, and likely have some role in his history of harassment, alleged rape, attempted murder,
and murder. Nonetheless, however false, the mere record of such an allegation against
Respondent is likely to harm Respondent and was likely intentionally made to further Petitioner’s
harassment, which weighs heavily in favor of these proceedings being expunged, or in the
alternative, sealed.
D. Petitioner’s Complaint In These Proceedings Lacks Any Evidence
Whatsoever
Like all of Petitioner’s fraudulent, vexatious and baseless complaints, the copy of
Petitioner’s complaint provided by the Court to Respondent via e-mail does not include any
evidence of the assertions made therein. That is because no such evidence exists, or to the extent
that it does exist but has not been provided, Petitioner has wildly misinterpreted the facts (or
simply lied about them) to fit his own pre-conceived and delusional narrative.
E. Petitioner Has a Documented History of Mental Illness, Harassment and
Violent Criminal Activity
Petitioner has a documented history of mental illness. When released from federal prison
in 2008, the United States Parole Commission mandated that Petitioner be subject to the “Special
Mental Health Aftercare Condition that requires you participate in an in-patient or an out-patient
mental health program as directed by your U.S. Probation Officer.” USA v. MasMarques, Case
No. 1:09-cr-10304-MLW, Document 1-2 at 5 (D. Mass., October 15, 2009).
Numerous individuals consider themselves victims of Petitioner, have at some point
considered themselves victims, or would consider themselves victims, were they still alive:
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1. Petitioner’s wife, Mary Bulman, who formally accused Petitioner of assault;
2. An unnamed person or persons who charged Petitioner with two counts of rape in
South Boston District Court in 1994;
3. Tatiana Vasic, whom Petitioner was convicted of murdering in Caliu, Spain in late
1999;
4. The parents of Tatiana Vasic, themselves the victims of unrelenting harassment by
Petitioner, who left them with a significant long distance telephone bill after
murdering their daughter;
5. An unnamed woman quoted in Ultima Hora on December 12, 1999, who stated
with regard to Petitioner (based on translation from Spanish to English), “the
madness of the same man turned our lives into an ordeal,” after having suffered
“physical and mental aggressions, harassment and persecution;”
6. The at least two women that are the subject of the December 20, 1999 report in
Periódico de Ibiza y Formentera that (based on translation from Spanish to English),
“when the defendant lived in Boston (Massachusetts), the police arrested him
twice, for hitting two young people who were his fellow sentimental
[companions]. These people claim that, afterwards, Diego Mas[Marques] had
problems of the same characteristics in Miami (Florida);”
7. An unnamed man whom Petitioner attacked with a motor vehicle in Palma, Spain,
for which Petitioner was subject to criminal proceedings and found guilty on
November 30, 1998. According to the same translated December 20, 1999 report,
“The events occurred on October 16, 1997. The ruling states that Diego
Mas[Marques] was driving with his car when he noticed the presence of his former
partner. The woman was driving in a car driving by another man. Diego
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Mas[Marques] started a persecution. Mas[Marques] rammed the man with his car
and caused erosions and bruises on his right hand and left thigh;”
8. Jeffrey Steinport, an American lawyer, who wrote to and called the Federal Bureau
of Investigation and numerous police departments after Petitioner began
relentlessly harassing him for publishing public domain court records that
happened to include Petitioner’s cases, forcing him to shut down his business;
9. Lisa Dubé, Petitioner’s federal probation officer in Massachusetts, about whom
Petitioner authored an anonymous harassing post on the now-defunct gripe site
BlackListReport.com on January 20, 2018, calling her a “hypocrite who’s [sic]
moral compass is totally out of whack” and a “control freak” while criticizing her
“feminist viewpoints;”
10. “John Fuenchem,” a Canadian lawyer using a pseudonym who supports PlainSite’s
efforts with regard to the publication of public records. Respondent does not
know this individual’s true identity. Petitioner has repeatedly and falsely accused
Respondent of masquerading as John Fuenchem, whose pseudonym now appears
in dozens of harassing on-line posts targeting Respondent;
11. Respondent’s family members: his father, mother, brother, uncle, and cousins;
12. Respondent’s female professional colleague.
In sum, Petitioner has left in his wake roughly twenty victims, not including those with
whom Petitioner has had civil court disputes (of which there are several). When weighing the
legitimacy of Petitioner’s complaint and the Counter-TRO it is based upon, this context should
be a factor.
F. The Middlesex County Superior Court Lacks Jurisdiction and Authority to
Overrule a California State Judge
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Even presuming that the now-expired Counter-TRO was valid, which it was not; that
Petitioner’s representations giving rise to the Counter-TRO were true, which they were not; and
that the representations in Petitioner’s application for a restraining order are true, which they are
not; the Middlesex County Superior Court lacks jurisdiction to hear this matter. Respondent is a
full-time resident of the State of California. Nor can a Massachusetts Superior Court judge
overrule a California Superior Court judge.
G. No “Harassment” Has Taken Place Under Mass. General Laws Chapter
258A
Petitioner seeks a restraining order against Respondent under Chapter 258E. Chapter
258E concerns “harassment,” which is defined in § 1 as “(i) 3 or more acts of willful and
malicious conduct aimed at a specific person committed with the intent to cause fear,
intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or
damage to property; or (ii) an act that: (A) by force, threat or duress causes another to
involuntarily engage in sexual relations; or (B) constitutes a violation of section 13B, 13F, 13H,
22, 22A, 23, 24, 24B, 26C, 43 or 43A of chapter 265 or section 3 of chapter 272.” Respondent
has never committed even one of these acts, with regard to Petitioner or anyone. Therefore, no
“harassment” by Respondent could have occurred.
H. Respondent Has Not Been Served
Respondent was never notified of these proceedings in any formal capacity and has not
been served as of the drafting of this motion. Respondent did not know of or participate in any
of the hearings that apparently took place in this case on July 29, 2019, August 6, 2019, or August
27, 2019. Respondent’s only hint that these proceedings existed—as they are not even available
electronically—was a single “Clerk’s Notice” that arrived via First Class Mail on the afternoon of
September 3, 2019. This supposed Notice failed to mention the existence of yet another hearing
that had already been scheduled, without Respondent’s knowledge or input, for September 5,
MOTION TO STRIKE COMPLAINT FOR
PROTECTION FROM HARASSMENT AND
SUBSEQUENT ORDER(S)
1981CV02204Page 17
2019 at 2:00 P.M. Eastern Time. The Court’s willingness to proceed with so many hearings
without Respondent even being aware suggests a gross violation of Respondent’s due process
rights. “[T]he remedy mandated by the Due Process Clause of the Fourteenth Amendment is ‘an
opportunity to refute the charge.’ 408 U. S., at 573. ‘The purpose of such notice and hearing is
to provide the person an opportunity to clear his name,’ id., at 573 n. 12.” Codd v. Velger,
U.S. 624, 627 (1977).
III.
Conclusion
Journalism is not a crime, as the Marlborough District Court has already affirmed. Nor is
it a reasonable cause for the issuance of a restraining order, as the Superior Court of Santa Clara
County has also affirmed. These proceedings are the result of a vexatious and increasingly costly
litigation campaign by a very unwell man. For all of the foregoing reasons, Respondent
respectfully requests that this Court strike, dismiss, and expunge (and/or seal) Petitioner’s above
complaint and any subsequent orders that may have issued from it, and at the Court’s discretion,
enter a gatekeeping order to prevent further frivolous filings by Petitioner.
Respectfully submitted this 4th day of September, 2019.
Aaron Greenspan
956 Carolina Street
San Francisco, CA 94107-Phone: +1 415 670 Fax: +1 415 373 E-Mail: aaron.greenspan@plainsite.org
MOTION TO STRIKE COMPLAINT FOR
PROTECTION FROM HARASSMENT AND
SUBSEQUENT ORDER(S)
.Zip:
-_
.
Relationship t0 Protected Person: none
Additional Protected Persons
GD E addition to the person named 1n the following family or household members of that person are protected by
'In
<1),
the orders indicated below:
Full
Name
Age
_S_e_x
Lives with
vo_u_?
How
are theV related t
you?
_
D
E
N
mother
L] Yés L]
No
tafher
'
Judith Keene Greenspan
F
'
M
'
'
'
Neil Sanford Greenspan
E
~
.
I
Yes
Check here ifthere are additionalpersons. List them 0n an attached sheet ofpaper and write ”Attachment
Additional Protected Pelsons' ’as a title. You may useform 1 [C 025, A‘. ‘ chment
3-
>
Expiration Date
This Order, exceptfor any
'
Timez‘llz
_If
PM
no expiration date
is
award oflawyer’sfees,
D
am.
E
p.m.
D
expires at
midnight 0n (date): 08/30/
written here, this Order expires three years from the date 0f issuance.
’
This
m Mandamm
Judicial Council of California.
Rewsedmuam
www.courracagov
-Code of Civil Procedure §§ 527. 6 and 527. Approved by DOJ
Civil
is
a Court Order.
Harassment Restraining Order‘After Hearing
(CLETS-CHO)
'
I
_
'(Civil
Harassment Prevention)
CH-130, Page
‘
°f
aPage 21 Case Number:
18CH00806'
Hearing
I
~
I
-a.
May 2,
There was a hearmg on (date)
'at
309m
(time)
made thé
(Name ofjudicial officer). Hon. Carol Overton
b.
These people were
E
E
(1)
(2)
c.
D
D
(3)
in®-
(4)
D The lawyer for the personm @
D The lawyer for the
is
continued.
The
at the
parties
must return
The Court has granted the orders checked below.
and charged with a crime. You may be sent to jail
a.
to court
If
in
on
,.
.
,-
,
‘
'
5,.
,
at (time):
(date):
you do not obey these orders, you can be arrested
up to one year, pay_ a fine of up to $1, 000, or both.
for
Personal Conduct Orders
You must not do
l
and
E
(1)
the following things to the person
to the other protected persons listed 1n
E
(2)
0f,
named
in
®
®.
strike, stalk, threaten
Harass intimidate, molest, attack,
destroy personal- property
a'ssault (sexually
or disturb the peace of the person.
or otherwise),
hit',
abuse;
-
_
Contact the person, either directly or indirectly, 1n any way, including, but not limited to, in person, by
telephone, in writing, by public 0r private mail, by interoffice mail by e— mall, by text message, by fax,
or
-
electronic means.
by other
I
(3)
D
Take any action to obtain the person’ s address or location
found good cause not t0 make this order.
(4)
D
Other
D
b.
heanng
M.
{ransv
end of this Order on Attachment
Tb the‘Persoh
E
orders at thé
person..in....@.‘:(na1~ze),..=:-.=..e.y
Additional persons present are listed
The hearing
Room:
i
at the hearing:
Th? Person in®The
Dept;
in
If this item (3) ls not checked, the court has
(specifil).
Other personal conduct orders are attached
at the
end 0f this Order on Attachment 6a(4)
Peaceful written contact through a lawyer 0r process sewer or othel person for service of legal papers related to
a court case
is
allowed and does not violate
E
Stay-Away Orders:
a-
You must
(1)
The person
(2)
Each person
(3)
(4)
stay at least
'
in
®
in
yards
away from (check
D
(7)
.
@.
this Order.
all that apply):
'
The place of child
t_he
person
.
_
V
IThe home of the persoh in G).
E The job or workplace of the person
(8)
(9)
care of the children of
m®
IThe vehicle of the person in®
D Other (specifi)
in®.
(5)
(6)
D
D
The school ofthe person
The school of the
in
®.
Children of the
personin@.
'
‘
b.
This stay-away order does not prevent you from going to or frorfi
Sioux;
home'fifpface of employfnenf.
"
This"‘i§‘566ii‘r‘f Oiaje'r.’
JZ'
Revised Janualy
1,
Civil
mmwmmn‘wuzL
CH-
Harassment Restraining Order After Hearing
(-CLETS CHO)
(Civil
Harassment Prevention)
'
'
'
u... '.‘
Nun.
P'age 2 of
-_
‘
a
'Page 22 Case Number:
.
18CH
O
Guns
No.
or Other Firearms and Ammunition
You cannot own, possess,
a
other firearms,
If you
b.
or—
buy or
have,
any other way get guns,
ammunition.
have not already done
so,
you must:
Within 24 hours of being served with
-
try to buy, receive or try t0 receive, or in
this
Order,
or store with a licensed
sell t
law enforcement agency, any guns or other firearms
1n
gun
dealer, or turn in to a
your immediate possession 0r control.
'
File a receipt with the court within 48 hours of receiving this
-
have been turned
1n, sold,
or stOred. (You
'
Ordér that proVes that your guns or'firearm's
may useform CH- 800, Proof of Firearms Turned In,
Sold, or
Stored ,for the receipt.)
0D
The
Court has received information that
you own or possess
a firearm.
D The coun has made the necessary findings and applies the firearm relinquishment exemption under Code 0f
d
Under Califomia law, the person
make, model, and serial number oszrearm(s))
Civil Procedure section 527. 9(f).
firearm
The_
(Speczfiz
firearm must be
and from
in C2)
is
not required to relinquish this
in his or-her physical possession only during scheduled
his-or her place 0f employment.
Even
work hdurs and during
exempt under California law, the person
if
in
travel to
® may
be
subject tQ federal prosecution for possessing 0r controlling a'firearm.
D
Lawyer's Fees a_nd Costs
The person
D
_Ifiust pay to the person in __
in
D
lawyer’sfee—s
the following
ambunts
for
'
costs:
.
'
Amount
It_em
Amount
I'Item
,
'
‘
_$
,
._
$
D
®D D
G
Additional items and amounts are attached
end of this Order on Attachment
at the
9.“
Possession and Protection of Animals
a.
The person
in
@is
given the sole pOssession, care, and
owned, possessed, leased, kept, or held by him or
(Identifii ariimals by,
D
b.
e..,g
The person in®' must
her,
cont_rol
of t_he animauls listed below, whlch are
reside 1n
o_r
h_is
or
he_r
hou'sehold.
type bleed, name, color sex.)
'
stay at least
_
yards
away from, and not
take;
'sell,
transfer,
encumber, bonccal,
molest, attack, strike, threaten, harm, or otherwise dispose of, the animals listed above.
69%
Othe‘r
Orders
'
-
(speéifiz):
7~At
‘
_
(LouA'f SAQN- Aen‘a/n 1‘f(xe G70/we//CULL [@QrIOd'
‘
75:
KAdditional
Revised January
1,
orders are attached at the end of this Order
Civil
on Attachment
ExAcé‘fl
Harassment Prevention)
nfi
Gr L
W
’
OTHem
/_/
'
'
.Jzzdiéi'alfOflicé
v
‘.
V
"
Carol Overton
This'is a CoUrt Order
o’cagler
_
N.
'
R9““"”””a’“_'2°”
v
_
'
Civil
Harassment Restraining Order After Hearing
(CLETs--CHO)
..
(Civil
Harassment Prevention)
C”'-13°:Page4°fr
-
">Page 24 Case Number:
18CH
You Cannot Have Gu‘ns
or Firearms
.
_
Unless item 8d
is
checked, you cannot own,
ha've, possess,
guns, other firearms; or ammunition while this Order
must
sell'
t0 or store with a licensed
you have 0r control
gun
as stated in item
buy or
is in effect.
dealer, or turn in to a ilaw
try to buy, receive or try to receive, or othelwise get
you can go
If you do,
to jail
and pay a $1,000 fine. You
enforcement agency, any guns or other firearms
that
above. The court Will require you to prove that you did so.
‘
3'.
,v
_
:
v33.
“um.“
.
43,»
‘..y-.'v:'<=--
lfiéfrfi.étiofi5‘f¢r_fLa
Enforcing the Restraining Order
This Order
1s
has verified
enforceable
its
by any law enforcement agency
shoWn a copy of the Order or
(CARPOS). If the law enforcement
restrained person was not present at the court
that has received the Order, is
existence on the California Restraining and Protective Order System
agency has not received proof of service on the restrained person, and the
t_he agency must advise the restrained person of the terms of the Order and then must enforce
this Order are subj ect to eliminal penalties.
hearing,
Start Date
it.
Violations of
and End Date of Orders
@on page
This Order starts 0n the date next to the judge’ s signatule on page 4 and ends 0n the expiration date 1n item
Arrest Required
If
If
Order
Is
1.
Violated
an officer has probable cause to believe that the restrained person had notice of the order and has disobeyed
it,
the
A
Officer must arrest the restrained person. (Pen. Code, §§ 836(c)(1), 13701(b).)
violation of the order may be a violation
of Penal Code section 166 or 273.6. Agencies are encogfagéd to enter Violation messages into CARPOS.
Notice/Proof of Service
The law enforcement agency must
person “served” (given notice)
j
first determine if the restrained person
if (Pen.
Code,
had notice
O_f
the order. Consider
the_
rpstrained-
§ 836(c)(2)):
he officer sees a C_opy of the Proofof Service or confirms that the Proof 0f oervz'ce is on tlle; 0r
restrained person was at the restraining order hearing or Was informad of th? order by an officer.-
The
An
officer can obtain information about the Contents of the order and proof of service in
‘the restrained
person cannot be verified and the restrained person was not present
a
C ARPOS.
If proof
of service on
the court hearing, the agency must
advise the restrained person of the terms of the order and then enforceit.
If
the Protected Person Contacts the Restrained Person
Even if the protected pelson invites 0r consents to contact with the restrained person, this Order remains in efl'ect and
must be enforced. The protected person cannot be arrested for inviting or consenting to contact with the restrained person.
The
elders can be Changed only
Revised January
1,
by another
Civil
court order. (Pen. Code,
§_
13710_(b). )
Harassment Restraining Order After Hearing
(CLETs CHO)
CH-130. Pége
.
..
_
(Civil
Harassment PreVention)
r
.
.
.
.
s
a
.
5 of
9Page 25 Case Number:
_18CH
Conflicting Orders—Priorities of Enforcement
restraining order has been issued, the orders? must b‘e e'nforc'ed acwrdmg to
a
.-~--the following priorities: (See Pen Code, § 136.2 Fam Code, §§ 63. 83(1- (2.}, 6 '05/5).-,
otheI
1. EPO If one 0f the orders 1s an Emergency Pr otective Order (form EPO— 001) and ls more restrictive than_
if
mare than one
‘
lestraining or protective orders,
No- Contact Order.
2.
precedence
3.-
ove'r
If there
ls
it
has precedence 1n enforcement over
no EPO, a no--contact order
that
ls
all
-
.
other orders.
included 1n a lestraining or protective order has
any other restraining or protective order.
Criminal Order: If noné of the orders includes a no contact order, a domestic Violence protective order issugd
in a
I
v
criminal case takes precedence in enforcement over any conflicting civil court order.
Any
nonconflicting terms of
I
the civil restraining order remain in effect and enforceable.
4_.
A
Family, Juvenile, 0r Civil Order. If more than one family, juvenile,
has been issued, the one that was issued
last
other civil restraining or protective order
must be enforced
Clerk's Certificate
(Clerk willfill out this part.)
[seal]
—C|erk's Certificate—
-
o‘r
x
I
certify that this Civil
correct
copy of the
Harassment Restraining Order After Hearing 1s
original
on file
a true
and
1n the court
'
Date:
‘RevisedJanuém'M
,
Civil
,
Clerk,
_
by
.
Harassment Restraining Order After Hearing
(CLETS- CHO)
(Civil
Harassment Prevention)
,
Deputy
CH-1‘30» Page 6 °f5Page 26 Attachment #3 Additional Protécted Péféons
05/02/'
-
8CH
Greenspan
vs.
MasMarques
r
11min;
Simon Keene Gréenspan
-
Sex-
Age
M
,
HouseholdMember
Relationto Protected {Person
NO
Brother
'Page 27 OTHER ORDERS
With regard to Respondent’s cross—request for a restraining order
Petitioner, the request
conceded during
his
his criminal record
record.
is
after hearing against
denied. In this regard, the Court notes that Respondent
hearing testimony that information Petitioner published concerning
had not been sealed. Thus, such information was
Respondent did not otherwise persuasively
evidence that Petitioner engaged
in
establish
a
matter of public
by clear and convincing
unlawful harassment warranting issuance of a
further restraining order after hearing.
The Court hereby orders sealed that portion of the record of these proceedings
containing Respondent’s personal information included within otherwise public
documents,
IT IS
specifically:
Respondent’s social security and driver’s license numbers.
SO ORDERED.
Dated:
August
30,
fiL
WWW
(1997)
(emphasis
in
In
determining
whether a government action is "punishment" for purposes of the
Double
Jeopardy
Clause,
courts
examine
the
totality
of
the
circumstances to determine whether its objectives or effects are
"punitive" in nature.
The
public
conviction
See Stoller, 78 F.3d at 721.
availability
under
the
PACER,
of
the
CORI,
records
and
NCIS
of
MasMarques's
system
is
"punishment" in violation of the Double Jeopardy Clause.
courts
have
public
recognized
record
criminal
information
activities
holds
negative consequences."
(3d
Cir.
1997).
information
that
"[t]he
dissemination
concerning
"the
an
of
for
a
Many
accurate
individual's
potential
not
past
substantial
E.B. v. Verniero, 119 F.3d 1077,
"Nevertheless,
regarding
criminal
our
laws'
proceedings
insistence
be
that
publicly
disseminated is not intended as punishment and has never been
regarded as such."
Id. at 1100.
The purpose of these systems
is "regulatory," and they, therefore, are "not punishment even
though it may bear harshly on one affected."
Doe v. Pataki,
F.3d 1263, 1279 (2d Cir. 1997) (quoting Flemming v. Nestor, U.S.
603,
(1960).
Furthermore,
the
negative
effects
of
publicly disseminating criminal records do not "implicate any
interest
of
fundamental
Verniero, 119 F.3d at 1103.
constitutional
magnitude."
See
Therefore, the availability of the
4Page 39 PACER
records,
the
NCIC
alerts,
and
the
resulting
negative
effects do not constitute a second punishment in violation of
the Double Jeopardy Clause.
B.
Sealing MasMarques's Court Records
In the United States, there is a common law presumption of
public
access
Commc'ns,
to
Inc.,
judicial
U.S.
records.
589,
See
(1978);
Kravetz, 706 F.3d 47, 62 (1st Cir. 2013).
Nixon
v.
Warner
United
States
v.
This presumption
"stems from the premise that public monitoring of the judicial
system fosters the important values of 'quality, honesty and
respect for our legal system.'"
Siedle v. Putnam Investments,
Inc., 147 F.3d 7, 9-10 (1st Cir. 1998).
has
recognized
a
"compelling
records publicly available.
court
record,
the
court
need"
to
keep
criminal
United States v. Schnitzer,
F.2d 536, 539 (2d Cir. 1977).
a
public
Furthermore, Congress
When evaluating a motion to seal
"carefully
balances
the
interests that are at stake in the particular case."
competing
Siedle,
147 F.3d at 10.
MasMarques contends that it is unfair to allow the record
of his case to be publicly accessible through the court's PACER
system because public availability of the record has made it
difficult for him to find a job.
If courts were to allow the
stigma resulting from the public record of a case to outweigh
the public right of access, then virtually all criminal records
5Page 40 would be sealed.
The balance might lean more in MasMarques's
favor if he had been acquitted or exonerated of the charges in
Spain.
See Diamond v. United States, 649 F.2d 496, 499 (7th
Cir. 1981).
However, the presumptive public right of access to
court records is not outweighed solely because the record has an
adverse effect on the defendant's livelihood, as such rule would
vitiate the presumptive public right of access.
must
be
reluctant
to
substitute
their
Indeed, "courts
judgment
for
that
of
employers, legislators, and others in whom the discretion to
give second chances is more properly vested."
United States v.
Barrow, 06-Cr-1086(JFK), 2014 WL 2011689, at *2.
Consequently,
the court is denying MasMarques's request to seal the record of
this case.
C.
Removing the "Alert" from the NCIC Database
28 U.S.C. §534 directs the Attorney General to maintain a
criminal
records
database.
MasMarques
complains
criminal record is accessible in this database.
that
his
However, courts
are without authority to order removal of a criminal record from
the NCIC database.
See Carter v. United States, 431 Fed. Appx.
104, 105-06 (3d Cir. 2011); United States v. Lucido, 612 F.3d
871,
(6th
Cir.
2010).
Therefore,
MasMarques's request.
the
court
must
denyPage 41 D.
Expunging MasMarques's Criminal Record
MasMarques also appears to request that the court expunge
the
American
However,
court
federal
records
courts
lack
of
his
subject
convictions
matter
in
Spain.
jurisdiction
to
expunge criminal records based solely on "equitable reasons,"
meaning "grounds that rely only on notions of fairness and are
entirely divorced from legal considerations."
Coloian, 480 F.3d 47, 52 (1st Cir. 2009).
no legal basis to expunge his record.
United States v.
MasMarques provides
The court does not have
jurisdiction to expunge his record on these grounds.
III.
See id.
ORDER
In
view
of
the
foregoing,
it
is
hereby
ORDERED
that
Defendant's Motion to Seal (Docket No. 4) is DENIED.
/s/ Mark L. Wolf
UNITED STATES DISTRICT JUDGE
7
PDF Page 1
PlainSite Cover Page
PDF Page 2
1
2
3
Aaron Greenspan (Pro Se)
956 Carolina Street
San Francisco, CA 94107-3337
Phone: +1 415 670 9350
Fax: +1 415 373 3959
E-Mail: aaron.greenspan@plainsite.org
4
5
COMMONWEALTH OF MASSACHUSETTS
6
MIDDLESEX, ss.
SUPERIOR COURT
CIVIL ACTION NO. 1981CV02204
7
8
DIEGO MASMARQUES, JR.,
9
Petitioner,
10
v.
11
AARON GREENSPAN,
12
Respondent.
13
14
15
16
MOTION AND MEMORANDUM IN SUPPORT OF MOTION TO STRIKE
COMPLAINT FOR PROTECTION FROM HARASSMENT AND TO STRIKE ANY
SUBSEQUENT ORDER(S) ON ACCOUNT OF FRAUD ON THE COURT
17
Respondent Aaron Greenspan respectfully moves the Court to strike, or in the alternative,
18
to dismiss and seal, the complaint of Petitioner Diego MasMarques, Jr. in the above case, as well
19
as any subsequent resulting order(s). This Motion is supported by the following memorandum.
20
I.
Introduction
21
Respondent is a data journalist and a former CodeX Fellow at Stanford Law School.
22
Following more than two years of sustained telephone, e-mail and internet harassment by
23
Petitioner Diego MasMarques, Jr., on November 15, 2018, the Marlborough, Massachusetts
24
Police Prosecutor brought charges against Petitioner of Criminal Harassment in violation of Mass.
25
26
MOTION TO STRIKE COMPLAINT FOR
PROTECTION FROM HARASSMENT AND
SUBSEQUENT ORDER(S)
1
1981CV02204
PDF Page 3
1
General Laws Chapter 265 § 43A(a) and Harassment in Violation of a Prevention Order in
2
violation of Mass. General Laws Chapter 258E § 9. On November 28, 2018, the Marlborough
3
District Court found probable cause for both of those offenses, and a criminal complaint issued
4
against Petitioner with Docket No. 1821CR001157. The matter is presently pending.
5
Petitioner murdered his ex-girlfriend in Spain in 1999 and was convicted of murder by a
6
Spanish jury in 2000, after which Petitioner was extradited to the United States to serve time in
7
federal prison. Now free, Petitioner wishes for all records of his extensive criminal history to
8
vanish forever from the internet. But this is not to be, as four judges (two federal judges and two
9
state judges or magistrates) have now denied Petitioner’s attempts to seal his many cases and to
10
exact retribution against those who dare to publish public records involving them. These
11
proceedings are nothing more than Petitioner’s latest attempt to retaliate against Respondent,
12
whose company and non-profit organization work to publish court records.
13
Previously, on July 3, 2018, Petitioner filed a fraudulent and baseless cross-request for a
14
restraining order against Respondent because Respondent secured a five-year restraining order
15
against him based in Santa Clara County, California on June 19, 2018. After over ten hours of
16
hearing testimony over ten months, Petitioner’s cross-request was finally denied on August 30,
17
2019 by Santa Clara Superior Court Judge Carol Overton. A new two-year restraining order was
18
imposed against him. In addition, after the Marlborough Police prosecutor filed the
19
aforementioned criminal charges against Petitioner on November 15, 2018, for which probable
20
cause was found on November 28, 2018, Petitioner himself fraudulently applied for criminal
21
charges to be lodged against Respondent on April 8, 2019. No probable cause for charges against
22
Respondent was found, and on May 15, 2019, Petitioner’s application was summarily dismissed.
23
See Exhibit B.
24
25
Petitioner, who has continued harassing Respondent even since the criminal complaint
against him was issued, has now filed this duplicative cross-request for a restraining order against
26
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Respondent in an effort to undermine the authority of Judge Overton in California, who just
2
ruled against him. This is part of a pattern, as all of these myriad proceedings represent
3
Petitioner’s fundamental yet unattainable desire to undermine the federal judiciary, which
4
repeatedly denied his baseless motions to seal his criminal cases. Petitioner’s complaint here—one
5
of numerous baseless and vexatious complaints Petitioner has filed with various government
6
agencies regarding Respondent—is completely unfounded. Petitioner has left no “stone unturned
7
which he could possibly move.” Commonwealth v. Edgerly, 6 Mass. App. Ct. 241, 266 (1978).
8
“An examination of the history of this litigation as disclosed in the pleadings and docket
9
entries...shows an undue multiplicity of [filings] pursued to unreasonable lengths,” Boyagian v.
10
Hart, 312 Mass. 264, 266 (1942). Accordingly, the complaint should be summarily dismissed,
11
struck, and expunged (or in the alternative, sealed), for failure to state a claim, lack of jurisdiction,
12
lack of service of process, and/or res judicata.
13
II.
Argument
14
A. Judge Carol Overton Has Already Ruled Against Petitioner
15
Petitioner had a complete opportunity to make his case in the Superior Court of Santa
16
Clara County. Petitioner flew from the Boston area to San Jose, California three times to appear in
17
person for three different hearings: on December 12, 2018; on February 28, 2019; and finally on
18
May 2, 2019. He appeared at additional hearings telephonically. During these hearings, in the
19
course of his testimony Petitioner perjured himself no fewer than thirty (30) times. Ultimately,
20
he lost when his cross-request was firmly denied on August 30, 2019. As Judge Overton wrote,
21
“[T]he Court notes that [Petitioner] conceded during his hearing testimony that information
22
[Respondent] published concerning his criminal record had not been sealed. Thus, such
23
information was a matter of public record. [Petitioner] did not otherwise persuasively establish by
24
clear and convincing evidence that [Respondent] engaged in unlawful harassment warranting
25
issuance of a further restraining order after hearing.” See Exhibit A.
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“‘The doctrine of claim preclusion makes a valid, final judgment conclusive on the parties
2
and their privies, and bars further litigation of all matters that were or should have been
3
adjudicated in the action.’ Heacock v. Heacock, 402 Mass. 21, 23 (1988). Claim preclusion has
4
three elements: ‘(1) the identity or privity of the parties to the present and prior actions, (2)
5
identity of the cause of action, and (3) prior final judgment on the merits.’ DaLuz v. Department
6
of Correction, 434 Mass. 40, 45 (2001).” Decoulos v. O’Keefe, 18-P-376, at *2 (Mass. App. Ct. Mar.
7
7, 2019). All three elements of the claim preclusion test are met in this case. There are no
8
underlying factual differences between the Santa Clara proceedings and these proceedings
9
whatsoever.
10
B. Petitioner’s Complaint Is Entirely Based Upon an Invalid, Unenforceable,
and Expired Counter-Temporary Restraining Order
11
Petitioner’s complaint in this case, dated July 29, 2019, requests a restraining order under
12
Massachusetts General Laws Chapter 258E, specifically as a derivative of Case No. 18CH008067
13
in the Superior Court of Santa Clara County, California—the “CALIFORNIA RESTRAINING
14
ORDER” referred to in the complaint. The alleged dates when offenses were committed are
15
“10/8/2019” (as of this moment, in the future), “11/6/19” (also in the future)” and “3/2/19.”
16
Petitioner has a documented history of mental illness and his complaint is a confabulatory
17
mess. Respondent lives thousands of miles from Petitioner, and no contact of any kind took
18
place between Respondent and Petitioner on any of the above dates. Nor did Respondent
19
author any harassing or intimidating content on any of these dates or any other dates. Rather,
20
Petitioner persistently misconstrues any discussion of him whatsoever, by anyone—even a
21
reference to a public domain newspaper article, for example—to be “harassing” and “terrorizing,”
22
presumably because of his illness, and for these supposed crimes he blames a small group of
23
individuals who publish court cases, including Respondent.
24
25
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The specific “CALIFORNIA RESTRAINING ORDER” document cited by Petitioner
2
in his complaint is a counter-Temporary Restraining Order (the “Counter-TRO”) that
3
Petitioner applied for in an earlier act of retribution, after Respondent initially secured a five-year
4
permanent restraining order against Petitioner effective on June 19, 2018. Petitioner’s Counter-
5
TRO was automatically granted on July 3, 2018 by submitting Judicial Council of California
6
Form CH-100 on that same day. Based on the false representations made in Petitioner’s Form
7
CH-100, Superior Court Judge Deborah Ryan (who was unfamiliar with the case) granted
8
Petitioner’s request and waived his filing fee.
9
1. The Now-Expired Counter-TRO Was Invalid Because Petitioner Did
Not Pay The Requisite Filing Fee
10
California courts waive filing fees for restraining order applications where the applicant
11
warrants that any of three conditions are true:
12
a.
“There should be no filing fee because the [Respondent] has used or threatened
to use violence against me, has stalked me, or has acted or spoken in some
other way that makes me reasonably fear violence.”
b.
“The sheriff or marshal should serve (notify) the [Respondent] about the orders
for free because my request for orders is based on unlawful violence, a credible
threat of violence, or stalking.”
c.
18
“There should be no filing fee and the sheriff or marshal should serve the
[Respondent] for free because I am entitled to a fee waiver. (You must
complete and file form FW-001, Application for Waiver of Court Fees and
Costs.)”
19
California Code of Civil Procedure § 527.6(y); Judicial Council of California Form CH-100.1
13
14
15
16
17
On page 5 of Form CH-100, Petitioner checked the boxes corresponding to (a) and (b)
20
21
above, despite the fact that Respondent has never used or threatened to use violence against him,
22
and has never stalked Respondent (and unlike Petitioner, has no criminal record or history of
23
violent acts). Accordingly, Petitioner was and is required to pay the filing fee by law.
24
25
1
“Stalking” in the context of California Code of Civil Procedure § 527.6, which governs civil harassment restraining
orders, is defined in California Penal Code § 646.9(a), and does not apply to routine publication of public records.
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He did not. To reiterate, Petitioner has a documented tendency to misconstrue the
2
availability of any information about him on the internet—even public record information—as
3
“harassing, stalking, terrorizing, and online bullying” by whomever the publisher happens to be.
4
Respondent’s company and non-profit organization jointly run a website called PlainSite that lists
5
several of Petitioner’s federal civil and criminal court cases among millions of others.2 Petitioner
6
has attempted to seal his cases in court repeatedly, and each motion to seal has been firmly denied.
7
See Exhibits C and D. Rather than honor the decision of United States District Court Judge
8
Mark L. Wolf, or the decision of United States Court of Appeals for the First Circuit Judge
9
Sandra L. Lynch—both of whom denied his motions to seal—Petitioner decided to do an end-
10
run around the federal courts by lying his way to a nominal restraining order in state court against
11
one publisher of the content instead: Respondent Aaron Greenspan.
12
As a direct result of those falsehoods, Santa Clara County Superior Court Judge Deborah
13
Ryan granted Petitioner’s improper request for a fee waiver, tainting the resulting Counter-TRO
14
and rendering it invalid until at least such time as the proper filing fee is paid.
15
16
2. The Now-Expired Counter-TRO Was Invalid Because Respondent
Did Not Reside in Santa Clara County When It Was Applied For or
Issued
17
The Santa Clara County Superior Court lacked jurisdiction to issue the Counter-TRO,
18
but issued the invalid order nonetheless. In large part due to Petitioner’s harassment, Respondent
19
moved on June 26, 2018, leaving Santa Clara County. Respondent spent the remainder of June,
20
July, August, and part of September with his family in Ohio. When Respondent returned to
21
California on September 5, 2018, he lived in San Francisco County. Nonetheless, in response to
22
the “Venue” question, “Why are you filing in [Santa Clara] county?” Petitioner indicated on
23
page 2 of Form CH-100 that as of June 28, 2018, “[Respondent] lives in [Santa Clara] county;”
24
2
25
PlainSite is not the only website that has listed Petitioner’s public record cases. In addition, Leagle.com,
CourtListener, and UnitedStatesCourts.org have indexed or currently index Petitioner’s cases. According to its
founder, UnitedStatesCourts.org is no longer operational in part because of Petitioner’s relentless harassment.
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that “[Petitioner] was harassed by [Respondent] in this county” and “AARON JACOB
2
GREENSPAN IS USING COMPUTERS BASED OUT OF THIS COUNTY.” None of
3
those statements were true as of the date of filing, and the second statement was never true.
4
Furthermore, PlainSite’s servers are not based in Santa Clara County.
5
6
7
3. Petitioner Made Numerous False Claims Under Penalty Of Perjury
To Deceive The Court Into Granting His Now-Expired CounterTRO
Petitioner signed his name on page 6 of Form CH-100 on June 28, 2018 just after the
8
statement, “I declare under penalty of perjury under the laws of the State of California that the
9
information above and on all attachments is true and correct.” Nonetheless, several of the
10
11
representations made by Petitioner, in Petitioner’s handwriting, are false. Specifically:
a) Respondent is “selectively downloading legal documents from PACER.”
(Form CH-100, Page 1)
12
13
14
15
16
This is false. Petitioner is a criminal defendant in numerous court dockets across
the country, many of which are not even posted on PlainSite. Respondent has
made no effort to selectively post dockets related to Petitioner and prior to his
harassment campaign, Respondent had no idea who he even was. Furthermore,
documents on PACER not already under seal are in the public domain.
Respondent has a First Amendment right to publish, through Think Computer
Corporation, Think Computer Foundation, or any other entity, any public
domain materials. Petitioner’s allegations about “sealed” documents stem from his
own confusion or deliberate lying.
17
18
b) “…he is sending selective documents to people and agencies where I have filed
complaints against him.”
(Form CH-100, Page 1)
19
20
21
22
This is false. Nonetheless, Respondent has a First Amendment right to
communicate with law enforcement agencies about Petitioner’s unlawful behavior,
especially insofar as it is harassing and violates the initial restraining order against
him.
c) “3/17;08/17;03/29/18;04/01/18 and many calls”
(Form CH-100, Page 2)
23
24
25
This is false; it is unclear what Petitioner is referring to on (presumably)
March 17, August 17, March 29, and April 1, 2018. Respondent did not
place any outgoing calls to Petitioner, and has refused to speak with him when
Petitioner has called repeatedly. (Petitioner or someone acting on his behalf once
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2
3
4
5
6
called from an alternative phone number and just before identifying himself as
“Diego MasMarques,” began the call with, “Shalom, Aaron,” an inappropriate and
possibly anti-Semitic reference to Respondent’s Jewish religion.) Petitioner sent
scores of e-mails, including threats, to PlainSite both using his own name and
several false names; Respondent responded only to a select few, and reasonably
each time, including on May 3, 2017 when Respondent declined Petitioner’s
attempted bribe.
d) “Mary Mas Marques who has witnessed annoying phone calls with hang ups and
an individual requesting money on behalf of Aaron Jacob Greenspan to remove
URL’s [sic] from the search engines.”
(Form CH-100, Page 2)
7
8
9
10
This is false; while it is conceivable that Petitioner’s wife may have
witnessed annoying phone calls, they had no relation to Respondent
whatsoever. Respondent has never called or authorized anyone else to call
Petitioner or his relatives, besides which no one calling on behalf of Respondent
would use his middle name in typical conversation. On the other hand,
Respondent has received several harassing phone calls and threats from Petitioner
and individuals making the same exact allegations as Petitioner.
11
12
13
14
15
16
17
e) “This individual has somehow gained access to sealed documents from DOJ and
unlocked sensitive documents, then uploads these documents in a selective
manner.”
(Form CH-100, Page 3)
This is false. Neither PlainSite nor Respondent has posted any sealed documents
concerning Petitioner, let alone documents from the United States Department of
Justice. In court in Santa Clara County, California on February 28, 2019,
Petitioner for the first time identified what he meant by “sealed documents:” the
docket in Massachusetts District Court Case No. 1:12-cv-11100, which is not sealed
(and is not a “DOJ” document). None of the sealed court documents linked to
that specific docket are posted at all on PlainSite. February 28, 2019 Transcript at
20:17-24:28; 82:6-12; 91:4-18.
18
19
20
21
f) “Did the person in [2] use or threaten to use a gun or any other weapon? Yes.”
(Form CH-100, Page 3)
This is completely false. Respondent does not own a gun or weapon and made
no such threat. Nor does Respondent have any history of violence or threats of
violence whatsoever (unlike Petitioner). Petitioner’s argument that Respondent’s
weapon “is his computer” is ludicrous.
22
23
24
25
g) “This individual’s weapon is his computer and hacking skills that he uses in a
malicious manner, in order to harass, stalk, terrorize, shame and defame any one at
his whim.”
(Form CH-100, Page 3)
This is false. Respondent’s computer is not reasonably classified as a “weapon.”
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The posting of public domain materials similarly cannot be reasonably construed as
harassing, stalking, terrorizing, shaming, defamatory, or malicious.
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
h) “This individual has been harassing and stalking my family non-stop since March
of 2017. He has somehow gained access to sealed documents from the federal
database PACER that he selectively is [sic] uploads online.”
(Form CH-100, Page 3)
This is false. Again, Petitioner apparently regards anyone publishing information
regarding his serious crimes as “harassing, stalking, terrorizing, [and] online
bullying,” which it is not. All that transpired in March of 2017 is that Petitioner
received a notice that PlainSite would not suppress his public domain court cases.
i) “At the end of March 2018 I explained to Aaron Jacob Greenspan that if he did
not stop with the harassment that I was moving forward with a restraining order.
That was the second and last call.”
(Form CH-100, Page 5)
This is false and a complete fabrication. No such call took place. No such
advisement took place. Upon information and belief, Petitioner projects his own
thoughts and experiences onto others, including his crimes. In this case, because
Respondent obtained a restraining order against him, Petitioner now insists that he
originally warned Respondent that he would obtain a restraining order. He did
not.
j) “The Proof of Service was faulty, as the wrong person was served the court
documents on May 19, 2018.”
(Form CH-600, Page 2)
Upon information and belief, this is false. Plaintiff confirmed with the
Middlesex County Sheriff’s Office that the correct individual, Petitioner Diego
MasMarques, Jr. was served, based upon multiple photographs. Furthermore, if
the wrong individual had been served, that individual should not have accepted
the court papers from the process server.
k) “Aaron Jacob Greenspan has blatantly committed perjury at this Santa Clara
Superior Court and has lied under Oath…”
(Form CH-600, Page 2)
This is false.
l) “Aaron Jacob Greenspan then proceeded to upload a few more URL’s and has
even gone so far as to repeat the uploading of these legal documents on other
websites that this individual has created and uploaded these same documents o [sic]
third party websites.”
(Form CH-600 / Form MC-025, Page 4)
This is false. As a technical matter, URLs are not “uploaded.” Respondent has
not uploaded Petitioner’s case documents to other websites.
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2
3
m) “This entire 501(c)(3) was at first For Profit when it started in 1998 and then
changed to a Non Profit in the year 2000 and consequently was transferred to the
State of Delaware, in order to avoid turning in yearly earnings reports.”
(Form CH-600 / Form MC-025, Page 4)
4
Every part of this statement is false.
5
n) “Attorney’s Fees: 7,500; Court Costs: 2,000”
6
7
8
9
These amounts are false. On the first day he began filing in Case No.
18CH008067, Petitioner claimed that he had already paid $7,500.00 in attorney’s
fees and $2,000.00 in court costs. In fact, in connection with the case, he had paid
no attorney’s fees (Petitioner was and is not represented by an attorney in
California) and no court costs (which were waived based on his false
representations about Respondent owning a weapon, as described above).
Petitioner was simply attempting to extract $9,500.00 from Respondent using the
legal system as a vehicle for extortion.
10
In summary, Petitioner perjured himself no fewer than fifteen (15) times when he filed
11
Form CH-100 on July 3, 2018.
12
13
14
4. Petitioner’s Now-Expired Counter-TRO Was Never Served on
Respondent
Respondent was never served with Petitioner’s Counter-TRO. Rather, Respondent
15
waived service of the Counter-TRO at a court appearance on October 9, 2018 for the limited
16
and express purpose of contesting its many false statements. October 9, 2018 Transcript 2:21-25,
17
3:9-13. Consequently, even if this Court were to somehow deem the Counter-TRO valid,
18
which it was not, it would only be binding starting on October 9, 2018 at the point when
19
Respondent waived service.
20
5. Petitioner’s Counter-TRO Is Unconstitutional on Multiple Grounds
21
Petitioner’s Counter-TRO ultimately sought to enjoin Respondent from making use of
22
his First Amendment rights, rendering the Counter-TRO unconstitutional. “[S]peech cannot be
23
restricted simply because it is upsetting or arouses contempt.” Snyder v. Phelps, 131 S. Ct. 1207,
24
1219 (2011). Indeed, “the point of all speech protection... is to shield just those choices of
25
content that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay,
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1
Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 574, 115 S.Ct. 2338, 132 L.Ed.2d 487
2
(1995).
3
Furthermore, the Counter-TRO sought to enjoin Respondent from performing tasks that
4
are functionally impossible and/or pointless, such as “uploading” URLs to search engines for
5
indexing, rendering the Counter-TRO unconstitutional and moot. “It is axiomatic that this
6
Court cannot order a party to perform an impossible task.” United States v. Silvio, 333 F. Supp.
7
264, 266 (W.D. Mo. 1971). It follows that no Court can order a party to refrain from performing
8
an impossible task, and then subject that party to criminal penalties when someone wrongly
9
alleges that the impossible task was somehow performed anyway.
10
On May 2, 2019, Judge Overton realized that the now-expired Counter-TRO was
11
unconstitutional and modified it to restrict its scope to specific activities that Respondent was
12
already not doing. Below is a true and correct excerpt of the Counter-TRO issued May 2, 2019,
13
upon which all subsequent Counter-TROs were based. Note Judge Overton’s handwriting:
14
15
16
17
18
19
20
21
22
23
24
25
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Once that iteration of the Counter-TRO expired, due to space limitations on the form, it appears
2
that the court clerk—without checking with anyone—summarized this specific restriction with
3
the broader, and again unconstitutional, “not to obtain addresses, phone numbers, or any personal
4
data/not to upload on search engines.” Yet the court transcript from May 2, 2019 reflects Judge
5
Overton’s true intent. As Judge Overton admonished Petitioner, “You have to understand even
6
if Judge Ryan issued an order, if this Court issues an order that is overly broad in terms of
7
Constitutional protections, it’s going to be invalidated. You could only violate an order that is
8
lawful. The order has to be lawful in order to be violated.” May 2, 2019 Transcript, 119:19-23.
9
C. Petitioner’s Complaint In These Proceedings Is Factually False and
Misleading
10
Petitioner’s complaint before this Court also contains numerous false and misleading
11
statements. In the first place, no allegations involving the Counter-TRO can be brought for any
12
date prior to October 9, 2018, a fact which Petitioner has himself acknowledged in the past by
13
writing “HE WAS FINALLY SERVED THE R/O ON 10/09/2018” in his now-dismissed
14
application for criminal charges against Petitioner. (In fact, formal service was waived solely to
15
contest the Counter-TRO.) Petitioner has not engaged in any campaign of harassment against
16
Respondent, nor has Respondent ever posted on datingpsychos.com, reportcheater.com,
17
reportcheatingonline.com, exposecheaters.com, internetcheaters.com, badbizreports.com,
18
cyberextortioner.com, reportmyex.com, or reportcheatingwife.com. To the contrary,
19
Respondent has multitudes of evidence that Petitioner has used these and many other sites to post
20
thousands of harassing entries about Respondent and his family members and co-workers—which
21
is one of the reasons why a restraining order was granted against Petitioner. In summary,
22
Petitioner’s statements are the opposite of “reasonably trustworthy information…sufficient to
23
warrant a prudent man in believing that the defendant had committed…an offense.”
24
Commonwealth v. Stevens, 362 Mass. 24, 26 (1972).
25
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Furthermore, Petitioner checked a box on the form entitled “Defendant Information
2
Form As Provided By Plaintiff” indicating an answer of “yes” to “DOES DEFENDANT HAVE:
3
Psychiatric/emotional problems?” This is entirely false. Respondent has never been diagnosed
4
with any mental, psychiatric or other sort of emotional illness. Petitioner has absolutely no
5
evidence of any such “problems” other than his own, which are documented in the public
6
record, and likely have some role in his history of harassment, alleged rape, attempted murder,
7
and murder. Nonetheless, however false, the mere record of such an allegation against
8
Respondent is likely to harm Respondent and was likely intentionally made to further Petitioner’s
9
harassment, which weighs heavily in favor of these proceedings being expunged, or in the
10
11
alternative, sealed.
D. Petitioner’s Complaint In These Proceedings Lacks Any Evidence
Whatsoever
12
Like all of Petitioner’s fraudulent, vexatious and baseless complaints, the copy of
13
Petitioner’s complaint provided by the Court to Respondent via e-mail does not include any
14
evidence of the assertions made therein. That is because no such evidence exists, or to the extent
15
that it does exist but has not been provided, Petitioner has wildly misinterpreted the facts (or
16
simply lied about them) to fit his own pre-conceived and delusional narrative.
17
18
E. Petitioner Has a Documented History of Mental Illness, Harassment and
Violent Criminal Activity
19
Petitioner has a documented history of mental illness. When released from federal prison
20
in 2008, the United States Parole Commission mandated that Petitioner be subject to the “Special
21
Mental Health Aftercare Condition that requires you participate in an in-patient or an out-patient
22
mental health program as directed by your U.S. Probation Officer.” USA v. MasMarques, Case
23
No. 1:09-cr-10304-MLW, Document 1-2 at 5 (D. Mass., October 15, 2009).
24
25
Numerous individuals consider themselves victims of Petitioner, have at some point
considered themselves victims, or would consider themselves victims, were they still alive:
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1. Petitioner’s wife, Mary Bulman, who formally accused Petitioner of assault;
2
2. An unnamed person or persons who charged Petitioner with two counts of rape in
3
4
5
6
South Boston District Court in 1994;
3. Tatiana Vasic, whom Petitioner was convicted of murdering in Caliu, Spain in late
1999;
4. The parents of Tatiana Vasic, themselves the victims of unrelenting harassment by
7
Petitioner, who left them with a significant long distance telephone bill after
8
murdering their daughter;
9
5. An unnamed woman quoted in Ultima Hora on December 12, 1999, who stated
10
with regard to Petitioner (based on translation from Spanish to English), “the
11
madness of the same man turned our lives into an ordeal,” after having suffered
12
“physical and mental aggressions, harassment and persecution;”
13
6. The at least two women that are the subject of the December 20, 1999 report in
14
Periódico de Ibiza y Formentera that (based on translation from Spanish to English),
15
“when the defendant lived in Boston (Massachusetts), the police arrested him
16
twice, for hitting two young people who were his fellow sentimental
17
[companions]. These people claim that, afterwards, Diego Mas[Marques] had
18
problems of the same characteristics in Miami (Florida);”
19
7. An unnamed man whom Petitioner attacked with a motor vehicle in Palma, Spain,
20
for which Petitioner was subject to criminal proceedings and found guilty on
21
November 30, 1998. According to the same translated December 20, 1999 report,
22
“The events occurred on October 16, 1997. The ruling states that Diego
23
Mas[Marques] was driving with his car when he noticed the presence of his former
24
partner. The woman was driving in a car driving by another man. Diego
25
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Mas[Marques] started a persecution. Mas[Marques] rammed the man with his car
2
and caused erosions and bruises on his right hand and left thigh;”
3
8. Jeffrey Steinport, an American lawyer, who wrote to and called the Federal Bureau
4
of Investigation and numerous police departments after Petitioner began
5
relentlessly harassing him for publishing public domain court records that
6
happened to include Petitioner’s cases, forcing him to shut down his business;
7
9. Lisa Dubé, Petitioner’s federal probation officer in Massachusetts, about whom
8
Petitioner authored an anonymous harassing post on the now-defunct gripe site
9
BlackListReport.com on January 20, 2018, calling her a “hypocrite who’s [sic]
10
moral compass is totally out of whack” and a “control freak” while criticizing her
11
“feminist viewpoints;”
12
10. “John Fuenchem,” a Canadian lawyer using a pseudonym who supports PlainSite’s
13
efforts with regard to the publication of public records. Respondent does not
14
know this individual’s true identity. Petitioner has repeatedly and falsely accused
15
Respondent of masquerading as John Fuenchem, whose pseudonym now appears
16
in dozens of harassing on-line posts targeting Respondent;
17
11. Respondent’s family members: his father, mother, brother, uncle, and cousins;
18
12. Respondent’s female professional colleague.
19
In sum, Petitioner has left in his wake roughly twenty victims, not including those with
20
whom Petitioner has had civil court disputes (of which there are several). When weighing the
21
legitimacy of Petitioner’s complaint and the Counter-TRO it is based upon, this context should
22
be a factor.
23
F. The Middlesex County Superior Court Lacks Jurisdiction and Authority to
Overrule a California State Judge
24
25
26
MOTION TO STRIKE COMPLAINT FOR
PROTECTION FROM HARASSMENT AND
SUBSEQUENT ORDER(S)
15
1981CV02204
PDF Page 17
1
Even presuming that the now-expired Counter-TRO was valid, which it was not; that
2
Petitioner’s representations giving rise to the Counter-TRO were true, which they were not; and
3
that the representations in Petitioner’s application for a restraining order are true, which they are
4
not; the Middlesex County Superior Court lacks jurisdiction to hear this matter. Respondent is a
5
full-time resident of the State of California. Nor can a Massachusetts Superior Court judge
6
overrule a California Superior Court judge.
7
G. No “Harassment” Has Taken Place Under Mass. General Laws Chapter
258A
8
Petitioner seeks a restraining order against Respondent under Chapter 258E. Chapter
9
258E concerns “harassment,” which is defined in § 1 as “(i) 3 or more acts of willful and
10
malicious conduct aimed at a specific person committed with the intent to cause fear,
11
intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or
12
damage to property; or (ii) an act that: (A) by force, threat or duress causes another to
13
involuntarily engage in sexual relations; or (B) constitutes a violation of section 13B, 13F, 13H,
14
22, 22A, 23, 24, 24B, 26C, 43 or 43A of chapter 265 or section 3 of chapter 272.” Respondent
15
has never committed even one of these acts, with regard to Petitioner or anyone. Therefore, no
16
“harassment” by Respondent could have occurred.
17
H. Respondent Has Not Been Served
18
Respondent was never notified of these proceedings in any formal capacity and has not
19
been served as of the drafting of this motion. Respondent did not know of or participate in any
20
of the hearings that apparently took place in this case on July 29, 2019, August 6, 2019, or August
21
27, 2019. Respondent’s only hint that these proceedings existed—as they are not even available
22
electronically—was a single “Clerk’s Notice” that arrived via First Class Mail on the afternoon of
23
September 3, 2019. This supposed Notice failed to mention the existence of yet another hearing
24
that had already been scheduled, without Respondent’s knowledge or input, for September 5,
25
26
MOTION TO STRIKE COMPLAINT FOR
PROTECTION FROM HARASSMENT AND
SUBSEQUENT ORDER(S)
16
1981CV02204
PDF Page 18
1
2019 at 2:00 P.M. Eastern Time. The Court’s willingness to proceed with so many hearings
2
without Respondent even being aware suggests a gross violation of Respondent’s due process
3
rights. “[T]he remedy mandated by the Due Process Clause of the Fourteenth Amendment is ‘an
4
opportunity to refute the charge.’ 408 U. S., at 573. ‘The purpose of such notice and hearing is
5
to provide the person an opportunity to clear his name,’ id., at 573 n. 12.” Codd v. Velger, 429
6
U.S. 624, 627 (1977).
7
III.
8
Conclusion
Journalism is not a crime, as the Marlborough District Court has already affirmed. Nor is
9
it a reasonable cause for the issuance of a restraining order, as the Superior Court of Santa Clara
10
County has also affirmed. These proceedings are the result of a vexatious and increasingly costly
11
litigation campaign by a very unwell man. For all of the foregoing reasons, Respondent
12
respectfully requests that this Court strike, dismiss, and expunge (and/or seal) Petitioner’s above
13
complaint and any subsequent orders that may have issued from it, and at the Court’s discretion,
14
enter a gatekeeping order to prevent further frivolous filings by Petitioner.
15
16
Respectfully submitted this 4th day of September, 2019.
17
18
Aaron Greenspan
956 Carolina Street
San Francisco, CA 94107-3337
Phone: +1 415 670 9350
Fax: +1 415 373 3959
E-Mail: aaron.greenspan@plainsite.org
19
20
21
22
23
24
25
26
MOTION TO STRIKE COMPLAINT FOR
PROTECTION FROM HARASSMENT AND
SUBSEQUENT ORDER(S)
17
1981CV02204
PDF Page 19
CERTIFICATE OF MAILING AND SERVICE
I, Aaron Greenspan, hereby certify that this document has been e-mailed to the Court. It
has not been communicated to Petitioner Diego MasMarques, Jr. due to the nominal counterrestraining order imposed by the Court.
Aaron Greenspan
aaron.greenspan@plainsite.org
PDF Page 20
EXHIBIT A
Santa Clara County Superior Court Case No. 18CH008067
Judicial Council of California Form CH-130
Civil Harassment Restraining Order After Hearing, Dated August 30, 2019
Case Number:
18CH00806'7
Hearing
I
~
I
-a.
May 2,
There was a hearmg on (date)
2019
'at
309m
(time)
made thé
(Name ofjudicial officer). Hon. Carol Overton
b.
These people were
E
E
(1)
(2)
c.
D
D
(3)
in®-
(4)
1363011
D The lawyer for the personm @
D The lawyer for the
is
continued.
The
at the
parties
must return
The Court has granted the orders checked below.
and charged with a crime. You may be sent to jail
a.
to court
If
in
on
,.
.
,-
,
‘
'
5,.
,
at (time):
(date):
65
you do not obey these orders, you can be arrested
up to one year, pay_ a fine of up to $1, 000, or both.
for
Personal Conduct Orders
You must not do
l
and
E
(1)
the following things to the person
to the other protected persons listed 1n
E
(2)
0f,
named
in
®
®.
strike, stalk, threaten
Harass intimidate, molest, attack,
destroy personal- property
a'ssault (sexually
or disturb the peace of the person.
or otherwise),
hit',
abuse;
-
_
Contact the person, either directly or indirectly, 1n any way, including, but not limited to, in person, by
telephone, in writing, by public 0r private mail, by interoffice mail by e— mall, by text message, by fax,
or
-
electronic means.
by other
I
(3)
D
Take any action to obtain the person’ s address or location
found good cause not t0 make this order.
(4)
D
Other
D
b.
heanng
M.
{ransv
end of this Order on Attachment
Tb the‘Persoh
E
orders at thé
person..in....@.‘:(na1~ze),..=:-.=..e.y
Additional persons present are listed
The hearing
Room:
i
11
at the hearing:
Th? Person in®The
Dept;
in
If this item (3) ls not checked, the court has
(specifil).
Other personal conduct orders are attached
at the
end 0f this Order on Attachment 6a(4)
Peaceful written contact through a lawyer 0r process sewer or othel person for service of legal papers related to
a court case
is
allowed and does not violate
E
Stay-Away Orders:
a-
You must
(1)
The person
(2)
Each person
(3)
(4)
300
stay at least
'
in
®
in
yards
away from (check
D
(7)
.
@.
this Order.
all that apply):
'
The place of child
t_he
person
.
_
V
IThe home of the persoh in G).
E The job or workplace of the person
(8)
(9)
care of the children of
m®
IThe vehicle of the person in®
D Other (specifi)
in®.
(5)
(6)
D
D
The school ofthe person
The school of the
in
®.
Children of the
personin@.
'
‘
b.
This stay-away order does not prevent you from going to or frorfi
Sioux;
home'fifpface of employfnenf.
"
This"‘i§‘566ii‘r‘f Oiaje'r.’
JZ'
Revised Janualy
1,
2018
Civil
mmwmmn‘wuzL
CH-
Harassment Restraining Order After Hearing
(-CLETS CHO)
(Civil
Harassment Prevention)
'
'
'
u... '.‘
Nun.
P'age 2 of6
-_130
‘
a
'
PDF Page 23
Case Number:
.
18CH008067
O
Guns
No.
or Other Firearms and Ammunition
You cannot own, possess,
a
other firearms,
If you
b.
or—
buy or
have,
any other way get guns,
ammunition.
have not already done
so,
you must:
Within 24 hours of being served with
-
try to buy, receive or try t0 receive, or in
this
Order,
or store with a licensed
sell t0
law enforcement agency, any guns or other firearms
1n
gun
dealer, or turn in to a
your immediate possession 0r control.
'
File a receipt with the court within 48 hours of receiving this
-
have been turned
1n, sold,
or stOred. (You
'
Ordér that proVes that your guns or'firearm's
may useform CH- 800, Proof of Firearms Turned In,
Sold, or
Stored ,for the receipt.)
0D
The
Court has received information that
you own or possess
a firearm.
D The coun has made the necessary findings and applies the firearm relinquishment exemption under Code 0f
d
Under Califomia law, the person
make, model, and serial number oszrearm(s))
Civil Procedure section 527. 9(f).
firearm
The_
(Speczfiz
firearm must be
and from
in C2)
is
not required to relinquish this
in his or-her physical possession only during scheduled
his-or her place 0f employment.
Even
work hdurs and during
exempt under California law, the person
if
in
travel to
® may
be
subject tQ federal prosecution for possessing 0r controlling a'firearm.
D
Lawyer's Fees a_nd Costs
The person
D
_Ifiust pay to the person in __
in
D
lawyer’sfee—s
the following
ambunts
for
'
costs:
.
'
Amount
It_em
Amount
I'Item
,
'
‘
_$
,
._
$
D
®D D
G
Additional items and amounts are attached
end of this Order on Attachment
at the
9.“
Possession and Protection of Animals
a.
The person
in
@is
given the sole pOssession, care, and
owned, possessed, leased, kept, or held by him or
(Identifii ariimals by,
D
b.
e..,g
The person in®' must
her,
cont_rol
of t_he animauls listed below, whlch are
reside 1n
o_r
h_is
or
he_r
hou'sehold.
type bleed, name, color sex.)
'
stay at least
_
yards
away from, and not
take;
'sell,
transfer,
encumber, bonccal,
molest, attack, strike, threaten, harm, or otherwise dispose of, the animals listed above.
69%
Othe‘r
Orders
'
-
(speéifiz):
7~At
‘
_
(LouA'f SAQN- Aen‘a/n 1‘42
f(xe G70/we//CULL [@QrIOd'
‘
75:91
KAdditional
Revised January
1,
2018
orders are attached at the end of this Order
Civil
on Attachment
ExAcé‘fl
Harassment Prevention)
nfi
11
Harassment Restraining Order After Hearing
(CLETs-CHO)‘
(Civil
p
CH-1 30, Page
3 of 6
—>
Case Number:
18CH008067
You Cannot Have Gu‘ns
or Firearms
.
_
Unless item 8d
is
checked, you cannot own,
ha've, possess,
guns, other firearms; or ammunition while this Order
must
sell'
t0 or store with a licensed
you have 0r control
gun
as stated in item
buy or
is in effect.
dealer, or turn in to a ilaw
try to buy, receive or try to receive, or othelwise get
you can go
If you do,
to jail
and pay a $1,000 fine. You
enforcement agency, any guns or other firearms
that
above. The court Will require you to prove that you did so.
‘
3'.
,v
_
:
v33.
“um.“
.5
43,»
‘..y-.'v:'<=--
lfiéfrfi.étiofi5‘f¢r_fLa
Enforcing the Restraining Order
This Order
1s
has verified
enforceable
its
by any law enforcement agency
shoWn a copy of the Order or
(CARPOS). If the law enforcement
restrained person was not present at the court
that has received the Order, is
existence on the California Restraining and Protective Order System
agency has not received proof of service on the restrained person, and the
t_he agency must advise the restrained person of the terms of the Order and then must enforce
this Order are subj ect to eliminal penalties.
hearing,
Start Date
it.
Violations of
and End Date of Orders
@on page
This Order starts 0n the date next to the judge’ s signatule on page 4 and ends 0n the expiration date 1n item
Arrest Required
If
If
Order
Is
1.
Violated
an officer has probable cause to believe that the restrained person had notice of the order and has disobeyed
it,
the
A
Officer must arrest the restrained person. (Pen. Code, §§ 836(c)(1), 13701(b).)
violation of the order may be a violation
of Penal Code section 166 or 273.6. Agencies are encogfagéd to enter Violation messages into CARPOS.
Notice/Proof of Service
The law enforcement agency must
person “served” (given notice)
j
first determine if the restrained person
if (Pen.
Code,
had notice
O_f
the order. Consider
the_
rpstrained-
§ 836(c)(2)):
he officer sees a C_opy of the Proofof Service or confirms that the Proof 0f oervz'ce is on tlle; 0r
restrained person was at the restraining order hearing or Was informad of th? order by an officer.-
The
An
officer can obtain information about the Contents of the order and proof of service in
‘the restrained
person cannot be verified and the restrained person was not present
a1
C ARPOS.
If proof
of service on
the court hearing, the agency must
advise the restrained person of the terms of the order and then enforceit.
If
the Protected Person Contacts the Restrained Person
Even if the protected pelson invites 0r consents to contact with the restrained person, this Order remains in efl'ect and
must be enforced. The protected person cannot be arrested for inviting or consenting to contact with the restrained person.
The
elders can be Changed only
Revised January
1,
2018
by another
Civil
court order. (Pen. Code,
§_
13710_(b). )
Harassment Restraining Order After Hearing
(CLETs CHO)
CH-130. Pége
.
..
_
(Civil
Harassment PreVention)
r
.
.
.
.
s
a
.
5 of6
9
PDF Page 26
Case Number:
_18CH008067
Conflicting Orders—Priorities of Enforcement
restraining order has been issued, the orders? must b‘e e'nforc'ed acwrdmg to
a
.-~--the following priorities: (See Pen Code, § 136.2 Fam Code, §§ 63. 83(1- (2.}, 6 '05/5).-,
otheI
1. EPO If one 0f the orders 1s an Emergency Pr otective Order (form EPO— 001) and ls more restrictive than_
if
mare than one
‘
lestraining or protective orders,
No- Contact Order.
2.
precedence
3.-
ove'r
If there
ls
it
has precedence 1n enforcement over
no EPO, a no--contact order
that
ls
all
-
.
other orders.
included 1n a lestraining or protective order has
any other restraining or protective order.
Criminal Order: If noné of the orders includes a no contact order, a domestic Violence protective order issugd
in a
I
v
criminal case takes precedence in enforcement over any conflicting civil court order.
Any
nonconflicting terms of
I
the civil restraining order remain in effect and enforceable.
4_.
A
Family, Juvenile, 0r Civil Order. If more than one family, juvenile,
has been issued, the one that was issued
last
other civil restraining or protective order
must be enforced
Clerk's Certificate
(Clerk willfill out this part.)
[seal]
—C|erk's Certificate—
-
o‘r
x
I
certify that this Civil
correct
copy of the
Harassment Restraining Order After Hearing 1s
original
on file
a true
and
1n the court
'
Date:
‘RevisedJanuém'M
7
,
Civil
,
Clerk,
_
by
.
Harassment Restraining Order After Hearing
(CLETS- CHO)
(Civil
Harassment Prevention)
,
Deputy
CH-1‘30» Page 6 °f5
PDF Page 27
Attachment #3 Additional Protécted Péféons
05/02/2019
'
-
1
8CH008067
Greenspan
vs.
MasMarques
r
11min;
Simon Keene Gréenspan
-
Sex-
Age
M
32
,
HouseholdMember
Relationto Protected {Person
NO
Brother
'
PDF Page 28
OTHER ORDERS
With regard to Respondent’s cross—request for a restraining order
Petitioner, the request
conceded during
his
his criminal record
record.
is
after hearing against
denied. In this regard, the Court notes that Respondent
hearing testimony that information Petitioner published concerning
had not been sealed. Thus, such information was
Respondent did not otherwise persuasively
evidence that Petitioner engaged
in
establish
a
matter of public
by clear and convincing
unlawful harassment warranting issuance of a
further restraining order after hearing.
The Court hereby orders sealed that portion of the record of these proceedings
containing Respondent’s personal information included within otherwise public
documents,
IT IS
specifically:
Respondent’s social security and driver’s license numbers.
SO ORDERED.
Dated:
August
30,
fiL
0
WWW
2019
/_
Judge of the Superior Court
##QQ/AMGA7L
//
PDF Page 29
EXHIBIT B
Marlborough District Court Case No. 1921AC000120
Letter Finding No Probable Cause, Dated May 15, 2019
PDF Page 30
MARLBOROUGH DISTRICT COURT
45 Williams Street
Marlborough, MA 01752
Tel: 508-485-3700 / Fax: 508-485-1575
Michael Fabbri, Presiding Justice
Paul F. Malloy, Clerk Magistrate Darryl S. Whitney, First Assistant Clerk Magistrate
May 15, 2019
Aaron J. Greenspan
956 Carolina Street
San Francisco,CA 94107
RE: Diego MasMarques v Aaron J. Greenspan
Dkt #1921AC000120
Dear Mr. Greenspan:
After complete review of the above matter, I find there is No Probable Cause for the complaint to
issue.
If you have any further questions, please don’t hesitate to contact me.
Sincerely,
[nih
Darryl Whitney
First Assistant Clerk Magistrate
508-485-3700 x204
PDF Page 31
EXHIBIT C
First Circuit Court of Appeals, Case No. 15-2402: In Re: MasMarques
Order Denying Emergency Motion to Seal Case, Dated December 28, 2015
Case: 15-2360
Document: 00116937571
Page: 1
Date Filed: 12/28/2015
United States Court of Appeals
For the First Circuit
_____________________
No. 15-2360
UNITED STATES,
Appellee,
v.
DIEGO MASMARQUES, a/k/a Diego Mas Howard,
Defendant, Appellant.
______________________
No. 15-2402
IN RE: DIEGO MASMARQUES,
Petitioner.
_____________________
ORDER OF COURT
Entered: December 28, 2015
The "emergency motion to seal case" is denied.
By the Court:
/s/ Margaret Carter, Clerk
cc:
Diego MasMarques
Dina Chaitowitz
Entry ID: 5965125
PDF Page 34
EXHIBIT D
Massachusetts District Court, Case No. 1:09-cr-10304: USA v. MasMarques
Memorandum and Order Denying Motion to Seal, Dated September 22, 2015
Case 1:09-cr-10304-MLW Document 7 Filed 09/22/15 Page 1 of 7
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
UNITED STATES OF AMERICA
)
)
)
)
)
)
v.
DIEGO MASMARQUES,
Defendant.
Cr. No. 09-10304-MLW
MEMORANDUM AND ORDER
WOLF, D.J.
September 22, 2015
Defendant
Diego
MasMarques
has
filed
a
Motion
to
Seal,
asking the court to seal the record of this case on the PACER
system
and
to
Investigation's
remove
the
("FBI")
record
National
from
the
Criminal
("NCIC") database (the "Motion").
Federal
Bureau
Information
of
Center
The Motion is being denied
for the reasons explained below.
I.
BACKGROUND
On July 17, 2000, MasMarques, who is an American citizen,
was convicted of two counts of burglary and one count of willful
homicide in Spain.
The Spanish court sentenced him to one year
in prison on the first burglary count, two years in prison on
the second burglary count, and twelve years in prison on the
homicide count.
In 2005, pursuant to a Transfer Treaty, he was
transferred to the United States to serve the remainder of his
sentence.
Prior
to
his
transfer
to
the
United
States,
MasMarques
signed a form consenting to serve the remainder of his sentence
PDF Page 37
Case 1:09-cr-10304-MLW Document 7 Filed 09/22/15 Page 2 of 7
according to the laws of the United States.
By signing the
form, he agreed that his "conviction or sentence can only be
modified or set aside through appropriate proceedings brought by
me or on my behalf in Spain."
See Feb. 13, 2006 Verification of
Consent to Transfer (Docket No. 1-4).
MasMarques's
District
of
case
was
Wisconsin
initially
for
assigned
performance
of
to
the
the
Eastern
verification
proceedings required by 18 U.S.C. §4108.
On August 20, 2008,
MasMarques
term
was
released
to
a
three-year
release in the Southern District of New York.
of
supervised
On June 2, 2009,
with the permission of the Probation Office, MasMarques moved to
Woburn, Massachusetts.
As a result, his case was transferred to
this court for supervision during the remainder of his period of
supervised release.
See 18 U.S.C. §4106A(b)(3).
On January 18, 2013, MasMarques, acting pro se, filed a
motion
requesting
that
conviction in Spain.
remove
a
database.
negative
He
the
court
seal
the
record
of
his
In addition, he requests that the court
"alert"
claims
that
that
the
appears
in
availability
record has harmed his ability to find a job.
the
of
FBI's
his
NCIC
criminal
He maintains that
allowing this criminal record to be publicly accessible violates
his rights under the Double Jeopardy Clause.
2
PDF Page 38
Case 1:09-cr-10304-MLW Document 7 Filed 09/22/15 Page 3 of 7
II.
DISCUSSION
MasMarques's
Motion
to
Seal
presents
four
issues:
(1)
whether public availability of his criminal record constitutes a
second punishment in violation of the Double Jeopardy Clause of
the
Fifth
Amendment;
(2)
whether
the
court
should
seal
the
record of his conviction; (3) whether the court has authority to
order the removal of the negative "alert" based on his case that
appears in the FBI's NCIC database; and (4) whether the court
has authority to expunge MasMarques's criminal record.
MasMarques is proceeding pro se.
will be construed liberally.
89, 94 (2007).
Therefore, his motion
See Erickson v. Pardus, 551 U.S.
Nevertheless, there is no legal basis to grant
the relief that he requests.
Therefore, his Motion is being
denied.
A.
The
Double Jeopardy
Double
Jeopardy
Clause
"safeguards
an
individual
against (1) a second prosecution for the same offense, following
an acquittal; (2) a second prosecution for the same offense,
following a conviction; and (3) multiple punishments for the
same offense."
United States v. Stoller, 78 F.3d 710, 714 (1st
Cir. 1996) (quoting United States v. Rivera-Martinez, 931 F.3d
148, 152 (1st Cir.), cert. denied, 502 U.S. 862 (1991)).
"The
Clause protects only against the imposition of multiple criminal
punishments for the same offense . . . and then only when such
3
PDF Page 39
Case 1:09-cr-10304-MLW Document 7 Filed 09/22/15 Page 4 of 7
occurs in successive proceedings."
Hudson v. United States, 522
U.S.
original).
93,
99
(1997)
(emphasis
in
In
determining
whether a government action is "punishment" for purposes of the
Double
Jeopardy
Clause,
courts
examine
the
totality
of
the
circumstances to determine whether its objectives or effects are
"punitive" in nature.
The
public
conviction
See Stoller, 78 F.3d at 721.
availability
under
the
PACER,
of
the
CORI,
records
and
NCIS
of
MasMarques's
system
is
"punishment" in violation of the Double Jeopardy Clause.
courts
have
public
recognized
record
criminal
information
activities
holds
negative consequences."
(3d
Cir.
1997).
information
that
"[t]he
dissemination
concerning
"the
an
of
for
a
Many
accurate
individual's
potential
not
past
substantial
E.B. v. Verniero, 119 F.3d 1077, 1099
"Nevertheless,
regarding
criminal
our
laws'
proceedings
insistence
be
that
publicly
disseminated is not intended as punishment and has never been
regarded as such."
Id. at 1100.
The purpose of these systems
is "regulatory," and they, therefore, are "not punishment even
though it may bear harshly on one affected."
Doe v. Pataki, 120
F.3d 1263, 1279 (2d Cir. 1997) (quoting Flemming v. Nestor, 363
U.S.
603,
613
(1960).
Furthermore,
the
negative
effects
of
publicly disseminating criminal records do not "implicate any
interest
of
fundamental
Verniero, 119 F.3d at 1103.
constitutional
magnitude."
See
Therefore, the availability of the
4
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Case 1:09-cr-10304-MLW Document 7 Filed 09/22/15 Page 5 of 7
PACER
records,
the
NCIC
alerts,
and
the
resulting
negative
effects do not constitute a second punishment in violation of
the Double Jeopardy Clause.
B.
Sealing MasMarques's Court Records
In the United States, there is a common law presumption of
public
access
Commc'ns,
to
Inc.,
judicial
435
U.S.
records.
589,
597
See
(1978);
Kravetz, 706 F.3d 47, 62 (1st Cir. 2013).
Nixon
v.
Warner
United
States
v.
This presumption
"stems from the premise that public monitoring of the judicial
system fosters the important values of 'quality, honesty and
respect for our legal system.'"
Siedle v. Putnam Investments,
Inc., 147 F.3d 7, 9-10 (1st Cir. 1998).
has
recognized
a
"compelling
records publicly available.
court
record,
the
court
need"
to
keep
criminal
United States v. Schnitzer, 567
F.2d 536, 539 (2d Cir. 1977).
a
public
Furthermore, Congress
When evaluating a motion to seal
"carefully
balances
the
interests that are at stake in the particular case."
competing
Siedle,
147 F.3d at 10.
MasMarques contends that it is unfair to allow the record
of his case to be publicly accessible through the court's PACER
system because public availability of the record has made it
difficult for him to find a job.
If courts were to allow the
stigma resulting from the public record of a case to outweigh
the public right of access, then virtually all criminal records
5
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Case 1:09-cr-10304-MLW Document 7 Filed 09/22/15 Page 6 of 7
would be sealed.
The balance might lean more in MasMarques's
favor if he had been acquitted or exonerated of the charges in
Spain.
See Diamond v. United States, 649 F.2d 496, 499 (7th
Cir. 1981).
However, the presumptive public right of access to
court records is not outweighed solely because the record has an
adverse effect on the defendant's livelihood, as such rule would
vitiate the presumptive public right of access.
must
be
reluctant
to
substitute
their
Indeed, "courts
judgment
for
that
of
employers, legislators, and others in whom the discretion to
give second chances is more properly vested."
United States v.
Barrow, 06-Cr-1086(JFK), 2014 WL 2011689, at *2.
Consequently,
the court is denying MasMarques's request to seal the record of
this case.
C.
Removing the "Alert" from the NCIC Database
28 U.S.C. §534 directs the Attorney General to maintain a
criminal
records
database.
MasMarques
complains
criminal record is accessible in this database.
that
his
However, courts
are without authority to order removal of a criminal record from
the NCIC database.
See Carter v. United States, 431 Fed. Appx.
104, 105-06 (3d Cir. 2011); United States v. Lucido, 612 F.3d
871,
875
(6th
Cir.
2010).
Therefore,
MasMarques's request.
6
the
court
must
deny
PDF Page 42
Case 1:09-cr-10304-MLW Document 7 Filed 09/22/15 Page 7 of 7
D.
Expunging MasMarques's Criminal Record
MasMarques also appears to request that the court expunge
the
American
However,
court
federal
records
courts
lack
of
his
subject
convictions
matter
in
Spain.
jurisdiction
to
expunge criminal records based solely on "equitable reasons,"
meaning "grounds that rely only on notions of fairness and are
entirely divorced from legal considerations."
Coloian, 480 F.3d 47, 52 (1st Cir. 2009).
no legal basis to expunge his record.
United States v.
MasMarques provides
The court does not have
jurisdiction to expunge his record on these grounds.
III.
See id.
ORDER
In
view
of
the
foregoing,
it
is
hereby
ORDERED
that
Defendant's Motion to Seal (Docket No. 4) is DENIED.
/s/ Mark L. Wolf
UNITED STATES DISTRICT JUDGE
7