Professional Documents
Culture Documents
---------------------------------------------------------------
- v. –
DANIEL B. KARRON,
Defendant.
---------------------------------------------------------------
D B Karron
Pro Se
348 East Fulton Street
Long Beach, NY 11561
Voice: 212 686 8748
Cell: 917 674 0828
Email: drdbkarron@gmail.com
Page 1 of 41
Contents
1) Preliminary Statement ........................................................................................................................... 6
2) Background ......................................................................................................................................... 11
3) Argument ............................................................................................................................................ 12
Overview of Complaint Claims .............................................................................................................. 12
1st Claim: FALSE CLAIMS ACT, 31 U.S.C. § 3729(a)(l)[Pre-FERA False Claim] .................. 12
2nd Claim: FALSE CLAIMS ACT, 31 U.S.C. § 3729(a)(2)[Pre-FERA False Record] ............... 12
3rd Claim: CONVERSION [of misappropriated funds to personal gain] ..................................... 12
4th Claim: UNJUST ENRICHMENT ........................................................................................... 12
5th Claim: FRAUD ....................................................................................................................... 12
6th Claim: PAYMENT MADE UNDER MISTAKE OF FACT .................................................. 12
Overview of Opposing Points of Argument ........................................................................................... 13
Point I. Karron Overfunding and Cofounding render moot Plaintiff’s claims. Declaration of
Dunlevy Exhibit 1. In main part the governments underlying accounting is false; being copied from
Hayes, and or being made up. Karron’s bona fide tax paid salary and project funding vitiate the
allegations of fraud. ............................................................................................................................ 13
Point II. There exists no Common Law Fraud elements in the BEA conviction; The Plaintiff fails
to aver the full particulars in the Complaint or Memorandum of Law. .............................................. 13
Point III. Incongruent Mens Rea Elements of § 666 BEA conviction and § 3729 FCA precludes §
3731 FCA Procedure for Statutory Collateral Estoppel. Summary Judgment by Res Judicata and
Civil Collateral Estoppel are impossible. The single element of conviction, knowing misapplication
of grant funds, without a finding of fraud, for purposes otherwise benefiting the Plaintiff are not the
same issues, elements, allegations, or claims, or transactions required by the law. ........................... 13
Point IV. Monstrous Civil Penalties and Damages demanded (as much as $5M+) are 42 X the
criminal restitution, significantly greater than the Campbell rule. The civil penalty is criminal. This
is a constitutional challenge because it infringes on the Defendant’s rights under the 5th Double
Jeopardy and Due Process (Summary Judgment short circuits Due Process) , Eminent Domain
(failure to Just Compensate Defendant for seized real and intellectual property), 8th Amendment
(Cruel and unusual punishment s) ....................................................................................................... 13
Point V. Other issues raised by Plaintiff and answered as space permits. .................................... 13
Point VI. Non Movants evidence is admissible at trial, must be considered as true for deciding
eligibility of summary judgment, and, interpretation of law must be considered in light most
beneficial to non-movant; there is no remaining basis for Summary Judgment. ................................ 13
Point I. Karron Funding of Project makes all fiscal reporting errors harmless to Plaintiff. .................... 14
Page 2 of 41
a) Karron’s Salary ................................................................................................................................ 14
b) Karron’s contribution ...................................................................................................................... 14
c) Overfunding and FCA ...................................................................................................................... 14
Point II. No Common Law Fraud Basis ................................................................................................ 15
A. Elements of fraud ............................................................................................................................ 15
i. Definitions of Fraud .................................................................................................................... 15
ii. The particulars of Common Law fraud consist of nine elements ............................................... 16
B. Plaintiff does not specify required elements of fraud to allege Common Fraud. .......................... 16
i. Common Law Estoppel cannot apply without full particulars. ................................................... 16
ii. “Benefit of the Bargain” fraud damages. .................................................................................... 17
C. CUNY CISDD Subcontract: Option or Obligation? ........................................................................... 19
1. CUNY CISDD NYUMC and KEY CASI TEAM MEMBERS ................................................................. 21
Point III. Incongruent Mens Rea Elements between Criminal and Civil Statutes Preclude Collateral
Estoppel and Summary Judgment ............................................................................................................... 21
a) Taking refuge in ALLISON Wonderland ........................................................................................... 22
b) FERA Retroactively Amends FCA 2009 ............................................................................................ 22
c) FERA Retroactivity Unconstitutional ............................................................................................... 23
d) FERA retroactivity Applies to Claims, Not Cases ............................................................................. 23
e) Retroactivity, Legally False from Kirk v. Schindler also false .......................................................... 24
f) FCA Claims Disputed ..................................................................................................................... 25
g) 31 USCS § 3731 (e) FCA Statutory CE Procedure ......................................................................... 25
h) The Mickman and Lamanna Limitation .......................................................................................... 26
i) Liability Does Not Equal Damages ................................................................................................ 27
j) The Defendant’s Conviction under 18 U.S.C. §666(a)(1)(A) [BEA] .................................................. 28
a) 2. Intent to Defraud Is Not An Element Of Section 666(a)(1)(A) … ............................................. 29
b) Section 666(a)(1)(A) prohibits embezzling, stealing, obtaining by fraud, converting, or
intentionally misapplying funds. The first four prohibitions cover any possible taking of money for
one’s own use or benefit. Intentional misapplication, in order to avoid redundancy, must mean
intentional misapplication for otherwise legitimate purposes. ......................................................... 30
Point IV. Monstrous Civil Penalties and Damages Unconstitutional ..................................................... 31
1. A 42 times damages and punitive ratio .......................................................................................... 32
2. Double Jeopardy and the BEA and the FCA .................................................................................... 32
3. Forensic Accounting does not support the Plaintiff’s loss contention ........................................... 33
Page 3 of 41
4. The TENENBAUM precedent ........................................................................................................... 34
5. Large Punitive Damages and Fines CASE LAW ................................................................................ 34
Point V. Other Issues Raised and Answered ......................................................................................... 35
s) OMB Circulars advice to Agencies ................................................................................................ 35
t) Revision of budget and program plans: 15 CFR §14.25 .................................................................. 35
u) ATP was tacitly or minimally responsive. ...................................................................................... 36
1. Cooperative Agreement requires CASI Substantial Involvement ................................................... 36
a) Kickoff Memo from Orthwein (Karron Declaration Exhibit 5) shows early significant
involvement. ....................................................................................................................................... 36
Point VI. No grounds for Summary Judgment ....................................................................................... 37
1) No Uncontested Material Issues for Partial Summary Judgment. .................................................. 38
The auditors conspired to make materially false audit in ignoring Karron’s contribution. ................ 39
Inventory of Facts, Claims, Refutations of Facts, Arguments to Claims ............................................. 40
4) Conclusion; No grounds for Civil or FCA Statutory Estoppel, Full or Part Summary Judgment. ..... 40
Table of Authorities
Cases
31 U.S.C. § 3729 .......................................................................................................................................... 25
Allison Engine Co. v. US Ex. rel. Sanders, No. 07‐214, 553 U.S. (2008) ....................................................... 22
Allison Engine Co. v. US ex. rel. Sanders, No. 95‐cv‐970 6th Cir(2009 ........................................................ 23
Allison Engine Co. v. US ex. rel.Sander (No. 07‐214) 471 F. 3d 610 ............................................................ 38
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247‐48 (1986) .................................................................... 37
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) ......................................................................... 37
Barrett v. Holland & Hart (1993), 845 P.2d 714, 717 .................................................................................. 16
Batten v. Watts Cycle & Marine (1989), 783 P.2d 378, 381, cert. denied, 494 U.S. 1087, 110 S.Ct. 1826,
108 L.Ed.2d 955 (1990) ........................................................................................................................... 16
BMW of North America, Inc. v. Gore (1996) ............................................................................................... 33
Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ............................................................................................. 37
First National Bank of Arizona v. Cities Service Co.391 US 253,391 US 289(1968) .................................... 37
Hopper v. Solvay Pharms, 588 F.3d 1318, 1327 n.3, 2009 cert. pet’n filed, 78 U.S.L.W. 3531 (U.S. Mar. 3,
2010) (No. 09‐1065); ............................................................................................................................... 23
Lee v. Armstrong 798 P.2d 84, 87; Batten, 783 P.2d at 380‐81. (1990) ..................................................... 16
Matsushita, 475 U.S. at 586, (1986) ............................................................................................................ 37
Page 4 of 41
Mikes v. Straus, 274 F. 3d 687 ‐ Court of Appeals, 2nd Circuit 2001 .......................................................... 24
Morlan v. Kelly, No. 2009‐UP‐002, SC Supreme Court, 2009 ..................................................................... 16
Schnellmann v. Roettger, 373 S.C. 379, 382, 645 S.E.2d 239, 241 (2007 ................................................... 16
Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal. 4th 111182 ......................................................... 33
SIMON v. San Paolo, 35 Cal. 4th at 1182 .................................................................................................... 10
SONY v. TENENBAUM , 03‐cv‐11661‐NG, 2010 US District Court Massachusetts. ..................................... 34
STATE FARM MUT. AUTOMOBILE INS. CO.V. CAMPBELL (01‐1289) 538 U.S. 408 (2003)P.3d .................. 33
Taylor v. State Compensation Insurance Fund, 175 Mont. 432, 913 P.2d 1242 (1996) ............................. 16
TROP v DULLES 356 U.S. 86 (1958) ............................................................................................................. 34
U S v Karron BRIEF FOR THE US OF AMERICA July 21, 2009 Karron’s Declaration Exhibit 6 ........................ 6
U S v. Karron UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 08‐5287‐cr of October 7,
2009 .......................................................................................................................................................... 7
U S. v. Sazama,88 F. Supp.2d 1270 (D. Utah 2000) ..................................................................................... 25
U S.v. Kanelos, 1994 WL 148655 (N.D. Ill. April 20, 1994) .......................................................................... 25
U.S. Ex. rel. Longhi v. Lithium Power Techs. Inc.,513 F.Supp.2d 866 (S.D. Tex. 2007), 2008 WL 62207(S.D.
Tex. Jan. 3, 2008)..................................................................................................................................... 21
US ex rel. Parato v. Unadilla Health Care, No. 5:07‐CV‐76(HL), 2010 WL 146877, at * 4 n.4 (M.D. Ga.),
2010) ....................................................................................................................................................... 23
US ex rel. ROGER L. SANDERS, et al., ‐v‐ ALLISON ENGINE COMPANY, INC., et al.,, Case No. 1:95‐cv‐970
(US DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON October 27, 2009)
................................................................................................................................................................ 23
US ex. rel. Kirk v. Schindler Elevator 601 F. 3d 94 (2d Cir. 2010) ................................................................ 24
US v. Bajakajian, 524 U.S. 321 (1998) ......................................................................................................... 10
US v. Bajakajian, 524 U.S. 321 (1998), ........................................................................................................ 34
US v. Halper, 490 U.S. 435, 448‐49 (1989).143 ........................................................................................... 32
US v. Karron (2008) Amended Judgment in a Criminal Case. Karron Declaration Exhibit 65 ..................... 40
US v. KARRON Civil Complaint, 08 CV 10223 US SDNY, November 24, 2008. ............................................ 24
US v. Karron, On Appeal, Brief for the United States(2009) at Point 1(B)(2) ............................................. 38
US v. Lamanna, 114 F. Supp. 2d 193 (E.D.N.Y. Sept. 26, 2000) ................................................................... 26
US v. Mickman, 1993 WL 541683 (E.D. Pa. Dec. 22, 1993), 52 F.3d 318 (1995) ......................................... 26
US v.Aguillon, 628 F.Supp.2d 542 Dist. Court, D. Delaware , June 24, 2009 .............................................. 23
US v.Science Applications International Corp., 2009 WL 2929250, D.D.C. Sept. 14, 2009 ......................... 23
Statutes
15 § 278n. ................................................................................................................................................... 33
15 CFR § 14.25 .............................................................................................................................................. 7
15 CFR § 14.25 (4) ....................................................................................................................................... 36
15 CFR §14.25(m) ........................................................................................................................................ 37
18 U.S.C. § 666 ............................................................................................................................................ 30
18 U.S.C. § 666(a)(1)(A) ............................................................................................................................... 30
18 U.S.C. §666(a)(1)(A) .................................................................................................................................. 6
18 USC §666(a)(1)(A) ..................................................................................................................................... 8
Page 5 of 41
31 U.S.C § 3729(a)(1) .................................................................................................................................... 8
31 U.S.C § 3729(a)(2) .................................................................................................................................... 8
31 U.S.C § 3731(e) ....................................................................................................................................... 26
31 U.S.C. § 3731(e) ................................................................................................................................ 22, 23
31 U.S.C. 3729 et seq .................................................................................................................................. 23
31 USC § 3731 (e) .......................................................................................................................................... 8
31 USC § 3731(e) ........................................................................................................................................... 8
31 USCS § 3729 As Amended 1986 ............................................................................................................... 8
31 USCS § 3729(a)(2)................................................................................................................................... 22
Other Authorities
ATP Proposal Ex. 14 Instructions, 2001 ....................................................................................................... 37
OMB Circular A‐122 .................................................................................................................................... 36
OMB Circulars A‐21 ..................................................................................................................................... 36
Public Law No: 111‐21 ................................................................................................................................ 23
Public Law No: 111‐21, Section 4(f)(2). ....................................................................................................... 24
Treatises
Cooper, Neal A. (1995‐1996) Third Party Liability or the False Claims Act: It Is Time for Consultants to
Pay the Price for Their Bad Advice 29 J. Marshall L. Rev. 923 ................................................................ 12
Federal Summary Judgment Doctrine: A Critical Analysis; Louis, Martin B. 83 Yale L.J. 745 (1973‐1974) . 16
Smith, Lionel D.; (1997)The law of tracing CLARENDON PRESS • OXFORD ................................................ 39
1) Preliminary Statement
The Defendant opposes the Plaintiffs’ motion for a summary judgment based on
significant issues of specific material fact in the Defendant’s Opposing 56.1 Statement of
The law of conviction here are not vague: a conviction under 18 U.S.C. §666(a)(1)(A)
(Bribery, Embezzlement Act or “BEA”) does not require a finding of fraud as convincingly
argued by the Government in its opposing brief to Karron’s Appeal1. The US Court of Appeals
for the Second Circuit has spoken as well: The element of conviction under BEA is one of
1
U S v. Karron BRIEF FOR THE US OF AMERICA July 21, 2009 Karron’s Declaration
Exhibit 6
Page 6 of 41
“Knowing Misapplication of Funds outside of authority to do so”. The Defendant is not claiming
innocence in this criminal matter, and has accepted the final Judgment of the Courts2.
The total spending on the project, direct and indirect, federal and non-federal share, was
$1,524,264, of which the Defendant contributed $178,764. Dunlevy Decl. Ex.AA001C, AAC109,
BAC227, CAC221, If the project is restarted tomorrow, no budget changes would be required to
complete the project. 15 CFR § 14.25 Karron Decl. Ex. 309, The Prosecution also could not
have said it better “Your Honor, because almost every single expenditure has some benefit to the
The allegation of common law fraud because the Defendant did not subcontract in the
first year of the project with CUNY CISDD is preposterous; there was no contractual obligation
to do so. Karron Decl. Exhibit Group 4. The cooperative agreement does not specify a
subcontract start date, duration, or any details that could be remotely make it an obligation: it is
permission to do so, not a specification to do so. Karron Decl. Ex. 28. When CASI won the
award, to everyone’s surprise, (Karron Decl. Ex. 9) The CUNY faculty rejected working through
CUNY CISDD; there was no economic incentive. Karron Decl. LEGAL ARTICLES Ex. 522.
They would not have earned an increment to work for CASI’s ATP project. ibid. ATP frowns
on excessive subcontracting. Eisen Decl. Ex. 124, ATP Proposers Conference Video at 2:28:27.
Instead they consulted directly with CASI, with full agreement of CUNY, and NIST, directly
2
U S v. Karron US COURT OF APPEALS FOR THE SECOND CIRCUIT 08-5287-cr of
October 7, 2009.
3
Sentencing Transcript Page 22 Line 22.
4
Sentencing Transcript Page 23, Line 10-22
Page 7 of 41
A 18 USC §666(a)(1)(A) BEA misapplication of funds conviction is not a qualifying 31
U.S.C § 3729(a)(1) and 31 U.S.C § 3729(a)(2) False Claims Act [FCA] fraudulent false
transaction as defined by the version of the statute effective at the date of the alleged claims. A
“BEA” conviction does not, prima facie, guarantee that all, or any, of the requisite elements for a
FCA conviction are met5. In the Defendant’s conviction, the Jury did not specify any particular
specific transactions on which to base its finding of a restitution amount; only ill-defined classes
of transactions taken from GX1146, without specific reference back to a schedule revealing
individual transactions: therefore there are no transactions identified as requisite element for
FCA liability. GX114 has problems. The Criminal Court complained bitterly about the lack of
definition, precision, and accuracy of the numbers and their classification on GX114, including
and the lack of backup schedules showing specific transactions used for each class. That is
because there is no backup. There is no way to “reverse engineer” these numbers. There is no
way to identify the transactions on which these sums are totaled. The Court could not have said
31 USC § 3731(e)8 False Claims procedure for invoking the statutory bar of Estoppel is
not automatically triggered because of the lack of any specific “transaction” element cited as
5
31 USCS § 3729 As Amended 1986, Karron Decl. LAW Ex. 335.
6
Karron Decl. Ex. 46
7
Sentencing Transcript Page 16 Line 14-15, Karron Decl. Ex. 46, 82
8
31 USC § 3731 (e) [Pre FERA] Notwithstanding any other provision of law, the Federal Rules
of Criminal Procedure, or the Federal Rules of Evidence, a final judgment rendered in favor of
the US in any criminal proceeding charging fraud or false statements, whether upon a verdict
after trial or upon a plea of guilty or nolo contendere, shall estop the defendant from denying the
essential elements of the offense in any action which involves the same transaction as in the
criminal proceeding and which is brought under subsection (a) or (b) of section 3730. [Emphasis
Added]. Karron Decl.LAW Ex. 337.
Page 8 of 41
fraudulent in the criminal case. The Plaintiff here brings forward some “‘at least twenty’”9, not
previously alleged as fraudulent in the criminal case 10. The Defendant disputes, as a matter of
fact, that the SF 269A short form, or SF270 submitted are knowingly false. Dunlevy Decl.
Ex. AA-001-A. The documents are as fraught with uncaught technical errors, and other mistakes,
despite being vetted, redacted and initialed by ‘HS’. Karron Decl. Ex. 134. Therefore, the
documents, amongst other reasons, are meaningless. Ibid. The Defendant clearly did not know
what he was doing, and HS, or whoever was reviewing the forms, did not care enough to bounce
them back for revision and correction. Indeed, there are enough arithmetic and math errors on
every step of the procedure on both sides to obviate anyone “knowing” anything at all. Clearly,
ATP did not think these important enough to hold up progress. Karron Decl. Ex. 307. The
Defendant submits “ground truth” verified figures prepared by the Defense forensic bookkeeper
who has thoroughly and completely analyzed CASI spending. Dunlevy Decl. The Defendant
disavows the unauthorized revisions of the SF269 Long Form made in good faith by her then
business managers Bob Benedict and auditor Hayes, who made exculpatory affirmations about
Karron as they submitted yet even more erroneous and a different replacement forms on
Finally, the forms in question, SF 269A and SF27011, are not unique qualifying fraud
claims, but rather quarterly financial forms and requests for advances that are a cash machine
receipt, showing balances remaining and spent, rather than forged checks or fraudulent invoices
9
The SF272 forms were voided in Amendment 4, and 4 SF269. See Defendants 56.1 response to
Plaintiff’s Paragraph #24 regarding counting unique and qualifying claim documents.
10
Some 4 SF269 documents being unauthorized revisions of previous submitted SF269(a) forms
by possibly well-meaning CASI business staff while Karron was in Canada. Karron Decl. Ex. 59
and Trial Transcript Pages 1313 et seq. starting at line 8.
11
Form SF272 was voided by Cooperative Agreement 4. Karron Decl. Ex. 15.
Page 9 of 41
or reimbursement demands. The money was in the bank, it was already allocated, and it was
already sequestered for the project. There was no quid-pro-quo claim for payment, no sine-qua-
non signature for any particular cash advance or drawdown12. Karron spent the money to the
best of her knowledge and ability, with the full knowledge, explicit and implicit and tacit
blessing of the ATP management. Karron Decl. Exhibit Group 3, Karron Decl. Ex. 500, 503.
The Defendant’s main evidence is forensic analysis of hard numbers taken from the criminal
trial. Karron Decl. Ex. 72,73. Dunlevy Decl. The Plaintiff’s exhibits are innumerate. Karron
Decl. Ex. 46, 47,48, 82, 505 . The numbers do not add up, are made up, and it took until now to
Plaintiff seeks punitive damages that are so enormous being 42 times ratio of punitive
fines to restitution, so clearly and significantly greater than the Campbell standard for “Single
Digits Ratio Rule” the Constitutional issues cannot be avoided by Summary Judgment. Karron
Decl. Ex.517, 519. US v. Bajakajian, 524 U.S. 321 (1998), SIMON v. San Paolo, 35 Cal. 4th at
1182 STATE FARM MUT. AUTOMOBILE INS. CO.V. CAMPBELL (01-1289) 538 U.S. 408
(2003)P.3d
The Defendant has raised significant matters of material fact in opposition to the
Plaintiffs’ Statement of Material Facts. If the Plaintiff wishes to challenge these facts, then it is
the job of the jury, as finders of fact. Without Mistake of Fact (obviated by correct fiscal facts,
Dunlevy Decl.), and full allegation of Fraud, no remaining unchallenged matters that can be
summarily judged without trial. FRCP 9(b). Karron Decl. LEGAL ARTICLES Ex. 512, 530, 533,
534.
12
For a counter example, consider a construction loan payable, where a payment is contingent on
submission of invoices and proof of work done.
Page 10 of 41
2) Background
In May 18 2001, the Defendant, then an adjunct faculty member at the City College of
the City University of New York (CCNY), and Founder/President of Computer Aided Surgery,
Inc. (CASI) attended a faculty solicitation for ATP proposals given my Marc Stanley, ATP
Program Director, at the CUNY Graduate Center on 34th Street and 5th Avenue. Karron Decl.
Ex. 6, 39. Stanley suggested to Karron that he attend the 2001 NIST ATP Annual Meeting in
Baltimore. He (then) actively participated in the June 3rd convention and he had extensive
discussion with various ATP personnel about how to win and manage an ATP grant for CASI.
Karron wrote and submitted a winning four “Gate” proposal to ATP that resulted in the
October 1 2001 award of a cooperative agreement for 2 million dollars direct funding for
Karron’s DMT image analysis algorithm. Karron Decl. Ex. 136. The novel concept was to do a
definitive “map”, much like the Human Genome Project “map”, of the Visible Human Project
Data, and to develop the idea of ‘computer anatomy and surgery’ a goal to which Karron is
The 9/11/2001 attacks here in NYC caused many people to rethink their lives. Longtime
Karron / CASI accountant Jill Feldman C.P.A. decided to retire from accountancy and sold her
practice to Joan Hayes C.P.A in the winter of 2001. Hayes thought she had much experience
with audit, corporate accountancy, and the federal cost principles. Karron Decl. Ex. 41, 52, 61,
62, 111,112,113. As it turned out, Hayes was perhaps the worst accountant ever to meddle in a
business and government project. Karron Decl. Ex. 40 ,54, 56, 121, 127, 128. She wore too
many hats; she lacked even a pretense of auditor independence. Karron Decl. Ex. 61,62, 505.
Page 11 of 41
She gained the confidence of Karron and the Department of Commerce and then proceeded to
make a train wreck of an otherwise promising research project and career13. Hayes lied to
Karron, lied in her audit of CASI, lied to the ATP, OIG, and IRS Special Agents investigating
ATP payroll taxes from which all that remains are IRS tax liens on Karron. Ibid. Dunlevy Decl.
3) Argument
The central allegation of the government six claims made November 24, 200914 are
founded in elements of common law Fraud and “Benefit of the Bargain” theory.
The central element of fraud in First, Second and Fifth Claim above requires the Plaintiff
to aver full FRCP 9(b) particulars and all of the nine elements of each instance of alleged fraud.
Claims Fraud targeted by the False Claims Act (FCA) requires establishment of which version of
the statute the alleged claim violates. Karron Declaration Exhibits 136, 170, 207, 208, 209.
Conversion requires funds tracing ibid Ex. 215, as does Unjust Enrichment. ibid Ex. 214
Mistake of fact requires identification of the exact facts relied upon by ATP are actually proven
13
Cooper, Neal A. (1995-1996) Third Party Liability or the False Claims Act: It Is Time for
Consultants to Pay the Price for Their Bad Advice 29 J. Marshall L. Rev. 923
14
Karron Declaration Exhibit 69
Page 12 of 41
Overview of Opposing Points of Argument
Point I. Karron Overfunding and Cofounding render moot Plaintiff’s claims. Declaration
of Dunlevy Exhibit 1. In main part the governments underlying accounting is false; being
copied from Hayes, and or being made up. Karron’s bona fide tax paid salary and project
Point II. There exists no Common Law Fraud elements in the BEA conviction; The
Plaintiff fails to aver the full particulars in the Complaint or Memorandum of Law.
Point III. Incongruent Mens Rea Elements of § 666 BEA conviction and § 3729 FCA
precludes § 3731 FCA Procedure for Statutory Collateral Estoppel. Summary Judgment by Res
Judicata and Civil Collateral Estoppel are impossible. The single element of conviction,
knowing misapplication of grant funds, without a finding of fraud, for purposes otherwise
benefiting the Plaintiff are not the same issues, elements, allegations, or claims, or transactions
Point IV. Monstrous Civil Penalties and Damages demanded (as much as $5M+) are 42 X
the criminal restitution, significantly greater than the Campbell rule. The civil penalty is
criminal. This is a constitutional challenge because it infringes on the Defendant’s rights under
the 5th Double Jeopardy and Due Process (Summary Judgment short circuits Due Process) ,
Eminent Domain (failure to Just Compensate Defendant for seized real and intellectual
Point VI. Non Movants evidence is admissible at trial, must be considered as true for
deciding eligibility of summary judgment, and, interpretation of law must be considered in light
Page 13 of 41
Point I. Karron Funding of Project makes all fiscal reporting errors harmless to Plaintiff.
a) Karron’s Salary
The ATP project was co-funded and over funded by the Defendant The total cost of the
project is $1,524,264, of which the Federal Share is $1,345,500 and the CASI contribution was
$178,764. Dunlevy Decl., Karron Decl. Ex. 17. The Government cites salary figures ranging
from a low of $ 35,293.58. 1516, $175,000 (Hayes audit), $200,488(OIG), to $253,913 from the
CASI Payroll Tax Returns prepared by Hayes. Hayes prepared the Defendants 2002 Tax return,
but abruptly quit and it was completed by Solomon and Schwartz17 Finally, completed forensic
analysis shows Karron’s total Tax Paid salary for the entire project period of $334,004.12 in the
b) Karron’s contribution
Karron has the right to fund her grant out of her tax paid salary. This is not ‘double
dipping’18. because it is bona fide after tax paid funds. Dunlevy Decl.
15
THE COURT: She[RILEY] has got a salary category. She shows it. Go on a couple of pages.
Payroll, next page, $35,293.58.
Sentencing Transcript Page 9 Line 18-19.
16
MR. RUBINSTEIN: and you see his payroll checks which I put into evidence as P-1 through
P-6, where his total amount for the year is about $35,000. Ask yourself, he gets $175,000, how
does he only have $35,000?
Trial Transcript Page 1293 Lines 20-24
17
Hayes completed Karron’s 2002 tax return in July 2003, but refused to file it; she returned it to
Karron but signed the extension request and completed the W2 forms before she “submitted” the
ATP audit report in August 2003.
Karron Declaration Exhibit 110.
18
Trial Transcript Page 1066 Line 22 et seq. Benedict Cross, See Karron Declaration Exhibit
57.
Page 14 of 41
Because the project was overfunded, the government sponsor cannot be harmed. The
funding reports that contains harmless errors to NIST but could only “harm” Karron by
understating Karron’s contribution. Clearly, if Karron had not contributed to the project, then
the first dollar of indirect costs might be problematic. Dunlevy Decl. Ex. BAC-301 shows Karron
made significant contributions, out of after tax salary. By Karron’s turning back so much after
tax salary, there is no liability for NIST being harmed by understated total grant spending. There
is adequate ‘slop’ in the gears benefiting NIST, such that the errors in the ‘false’ statements do
not materially harm the government sponsor in any way. The alleged “56.1” claims of Paragraph
#30 reflect GX114. The issues raised are matters of fact and math, not law. GX114 reclassified
A. Elements of fraud
i. Definitions of Fraud
induce another to act to his or her detriment.” 2021 Federal Rules of Civil Procedure, Rule 9(b)
states in relevant part: “In all averments of fraud or mistake, the circumstances constituting
fraud or mistake shall be stated with particularity”. The rule states that to allege a fraud or
mistake, a party must state "with particularity" the circumstances which would constitute the
fraud or mistake, failure to do so explicitly is grounds for dismissal of the charge despite
overwhelming evidence.
19
Black’s Law Dictionary, 5th ed., by Henry Campbell Black, West Publishing Co., St. Paul, Minnesota, 1979.
20
Black’s Law Dictionary, 7th ed., by Bryan A. Garner, editor, West Group, 1999
21
Law.com Dictionary http://dictionary.law.com/Default.aspx?selected=785. Retrieved Aug 13, 2010
Page 15 of 41
ii. The particulars of Common Law fraud consist of nine elements2223242526
Fraud can never be presumed but must be proved by a preponderance of the evidence.27
FRCP Rule 9(b) requires that each element be pled with particularity and be proved with clear,
cogent, and convincing, very probable evidence to establish a claim of fraud. This includes False
Claims Act (FCA) liability, as derived from common law fraud, as a specialized kind of fraud.
B. Plaintiff does not specify required elements of fraud to allege Common Fraud.
Fraud can never be blithely presumed; even in the shadow of the Defendant’s criminal
conviction. Failure of the Plaintiff to meet their burden of proof in all particulars is grounds to
deny Summary Judgment28. The single element of the BEA conviction is not the same as
22
http://en.wikipedia.org/wiki/Fraud
23
Morlan v. Kelly, No. 2009‐UP‐002, SC Supreme Court, 2009
24
Schnellmann v. Roettger, 373 S.C. 379, 382, 645 S.E.2d 239, 241 (2007)
25
Taylor v. State Compensation Insurance Fund, 175 Mont. 432, 913 P.2d 1242 (1996)
26
Lee v. Armstrong 798 P.2d 84, 87; Batten, 783 P.2d at 380‐81. (1990),
27
Barrett v. Holland & Hart (1993), 845 P.2d 714, 717 (citing Batten v. Watts Cycle & Marine (1989), 783 P.2d 378,
381, cert. denied, 494 U.S. 1087, 110 S.Ct. 1826, 108 L.Ed.2d 955 (1990)).
28
Federal Summary Judgment Doctrine: A Critical Analysis; Louis, Martin B. 83 Yale L.J. 745 (1973‐1974)
Page 16 of 41
Without a complete allegation of the full nine particulars, enumerated for each claim of
fraud, Common Law Estoppel cannot be applied. Even if a allegation of full particulars been
provided in the preceding criminal case, any non-movant answer that raises substantive issues of
The Third Circuit Court of Appeals has adopted the following test for civil collateral
(1) the issue sought to be precluded must be the same as that involved in the prior
action;
(2) that issue must have been actually litigated;
(3) it must have been determined by a valid and final judgment; and
(4) the determination must have been essential to the prior judgment.29 [emphasis
rearranged]
This standard fails in the Plaintiff’s civil case here because it contradicts the Plaintiff’s
own argument against the Defendants criminal appeal specifically that Fraud was not proved or a
required element for the Defendant’s criminal BEA conviction. The Plaintiff cannot have it both
ways, especially now that the second circuit court of appeals have made a final ruling. If the
Plaintiff has argued, and the courts agreed and upheld the Defendants conviction without a
finding of Fraud, then the Plaintiff it themselves are estopped from referring to the criminal case
for elements of Fraud to estop. It was not an element in the criminal trial and, at the very least,
The measure of damages in fraud can be computed by the "benefit of bargain" rule,
which is the difference between the value of the property had it been as represented, and its
29
Bower v. O'Hara, 759 F.2d 1117, 1125 (3d Cir. 1985)
Page 17 of 41
actual value. Karron Decl. Ex. 514, 537. The Plaintiff attempts to argues here that because the
defendant’s acts had not resulted in a “tangible benefit to the government and the intangible
benefit is impossible to calculate.” a full refund is due. Ibid Ex. 70, See Longhi below. This is not
true in this case because the Cooperative Agreement explicitly prices out incremental milestones.
Karron Decl. Ex. 8,14. Because all of the milestones in progress were achieved prior to funding
suspension and beyond, the 5th circuit argument of ‘intangible product’ does not hold. Six
detailed quarterly technical reports were submitted and accepted. Karron Decl. Exhibit Group 3.
The work product was a quarterly technical report and a tangible milestone, achievement of
which was never questioned, reported in the quarterly technical reports, and make concrete the
abstract nature of the research. Therefore for each milestone payment was due and duly paid, as
opposed to a grant activity with no deliverable product, for which only costs are reimbursed.
Additional benefit accrued to the government with each paper research published. Karron Decl.
Statements. The state of the art was advanced, and other colleagues around the world built on the
research foundation laid here. Karron Decl. Exhibit Group 21, Ex. 103 in particular.
The Longhi30 District court identifying what it considered a “novel issue of law,”
addressed for the “proper way to calculate damages for a fraudulently induced research grant.”
Only there is no fraud proven in the Defendant’s case. See Point III Below. Without a finding of
fraud, the Longhi analysis fails here, despite the Plaintiff’s criminal conviction.
The FCA Relator, Alfred Longhi, left the company 2002 because of his observations
“pertaining to duplicative research and work, and the fraudulent billing related to that duplicative
research and work.” Ultimately, the U.S. Attorney’s Office elected not to pursue criminal
30
U.S. ex. rel. Longhi v. Lithium Power Techs. Inc.,513 F.Supp.2d 866 (S.D. Tex. 2007), 2008 WL 62207 (S.D. Tex.
Jan. 3, 2008), cert granted
Page 18 of 41
charges against LPT or any of its employees. If the government wishes to pursue its theory of
damages, it must do so in a civil trial, and not attempt to make a cheap win of monumental
punitive damages by Summary Judgment. Implication of unlimited culpability for all the myriad
allegations is unwarranted and unfounded by the fact found at the criminal trial.
The Plaintiff alleges that because “agency anticipates substantial involvement, the agency
is to use a cooperative agreement”. They imply Karron lied and hid substantial issues from ATP
management. The only issue that Karron hid was her transsexuality, because it was not an
appropriate matter for a research sponsor. However, ATP seemed interested in many matters
of CASI business that the PI felt were not its business. The evidentiary trail shows Karron
discussing each and every material issue with the ATP management team, starting with the Gate
III oral examination, Gate IV cooperative agreement vetting, the Kickoff Orthwein Agenda
memo, and the Gurfein conversion to contractor request denial being honored. Problems started
when Hayes started interfacing with ATP and meddling with both sides.
The Plaintiff seems imply that because the cover sheet 3 of the proposal Gate 1 cited
CUNY CISDD as subcontractor, CASI was obligated to subcontract with CUNY CISDD as a
material specification for the project. The justifications cited on the form are the Key Faculty
and mathematical and software talent that such a subcontract would bring to bear on the project,
to the benefit of the government. That CASI did not, in the first 18 months of the project,
execute a subcontract with CISDD might conceivably be taken as evidence of a material false
statement in its Gate 1 proposal. Further, conceivably it might be that the ATP SEB evaluators
materially relied on CASI suggestion of a subcontract with CUNY to induce it to fund CASI. By
Page 19 of 41
CASI not fulfilling its implied “promise of a CISDD subcontract”, an observer ignorant of the
facts of the situation might conclude that CASI deprived the project of the mathematical and
software talent only available from CISDD as a sole source of this resource. Because of this, the
plaintiff argues that the entire funding for the ATP project would be better spent on a more
trustworthy steward, and that CASI, by its fraud, deprived a more worthy recipient from doing
the research on DMT ATP desired funded. Like ex. rel Longi, the implication is ‘you lie, you
lose- it all’.
However, there was no lie; the proposal cover sheet was not a specification to CASI, it
was an option. ATP was apprised of the issue, and gave consent. CUNY CISDD was not sine
qui non to the project, the key people were. CISDD was immaterial to the project. The venue
was immaterial. It was the involvement of the key faculty and students who participated directly
with CASI, some paid, many not. Karron was CUNY faculty and had full access to CUNY
without CISDD, and the CUNY faculty and students made use of ATP funding and computer
resources through CASI. The government got the better of the bargain for less cost as there was
The ATP proposal cover sheet page 3 calls out a subcontract with CISDD for $420,000.
It does not specify a start date or duration or other actionable details. It does not say “not to
exceed $240,000”, nor does it obligate that amount to CISDD in the approved budget(s). In the
Defendant’s “56.1” response to Paragraph #31, it becomes clear from the prima facie facts that
there was no contractual obligation to engage CUNY CISDD at the onset of the project, and that
the key CUNY faculty did in fact replace CUNY CISDD by consulting directly for CASI.
Page 20 of 41
1. CUNY CISDD NYUMC and KEY CASI TEAM MEMBERS
As soon as the project was funded, the CUNY and NYUMC faculty team members
clamored to contract directly with CASI. This issue was presented at the Kickoff meeting at
NIST in November. Karron Decl. Ex.10. All of the ‘Key CASI Team Members’ were engaged
directly to CASI, instead of as CUNY chattel. Both Cox and Wolberg obtained requisite
departmental and institutional permissions. Ibid Exhibit Group 4. There was no change in the
budget line item assignment, and key team members were unchanged except for the mitigation of
CUNY overhead. There was no need to remove the subcontractor proposal cover page to limit
In U.S. Ex. rel. Longhi v. Lithium Power Techs. Inc.,513 F.Supp.2d 866 (S.D. Tex. 2007),
2008 WL 62207(S.D. Tex. Jan. 3, 2008),,Defendant had multiple simultaneous SBIR grants and
have for lab space, a material misrepresentation. They were doing electrochemical research and
needed wet lab space. Their research could not be done in a home office. CASI’s could. CUNY
CISDD was not material to the conduct of the research; it was not material in the cooperative
agreement award, it was not a secret, it was approved by ATP, and was not an inducement to
Point III. Incongruent Mens Rea Elements between Criminal and Civil Statutes
Preclude Collateral Estoppel and Summary Judgment
The underlying elements of the Defendant’s criminal conviction under 18 U.S.C.
§666(a)(1)(A) [BEA] for knowing misapplication of funds are different and distinct from the
31 USCS § 3729(a)(2) [FCA] application standard for false claims, precluding 31 U.S.C. §
Page 21 of 41
The criminal conviction did not identify a required element of specific transactions, only a
‘same transactions’ 31 U.S.C. § 3731(e). Because no specific knowing fraudulent claim was
identified at least one material false claim would have to be proven in a trial. Finally the
court must examine the contradictions between the applicable FCA, BEA and ATP statutes
The Allison Engine Co. v. US Ex. rel. Sanders, No. 07-214, 553 U.S. (2008) by the
Supreme Court of the United States challenged previously accepted broad reach of the elements
of the FCA as unconstitutional. The Supreme Court held that plaintiffs under the ALLISON case
ruling of FCA must prove that the false claim made specifically “intended ‘to defraud the
Government.’ ”. Additionally “a plaintiff must prove that the defendant intended that the false
statement be material to the Government’s decision to pay or approve the false claim.” a
defendant is not answerable for anything beyond the natural, ordinary, and reasonable
Public Law No: 111-21 Fraud Enforcement and Recovery Act of 2009 (FERA) on March 23,
2009. Karron Declaration Exhibit 69, 12. In an unusual effort to re-broaden the reach of the
FCA, Congress attempted to make the FERA retroactive take effect as if enacted on June 7,
2008, and apply to all claims under the False Claims Act (31 U.S.C. 3729 et seq.) that are
31
$120,000 was lost through inappropriate expenses, Sentencing Transcript Page 90 Line 13‐14.
Page 22 of 41
pending on or after that date;. The stated legislative intention was to overturn the ALLISON
ruling of the Supreme Court. Public Law No: 111-21, Section 4(f)(2). Karron Decl. Ex. 336,
338,339.
The Supreme Court Decision remanded ALLISON 471 F. 3d.back to the District Court32,
where Judge Rose33 held that the retroactive application of amendments to the FCA set forth in
FERA with punitive damages violated the Ex. Post Facto Clause of the clause 3 of Article I,
section 9 of the U.S. Constitution. In this case the penalty sought at 42 X restitution is punitive
The District Court on remand further found that FERA supported the its application to
pending “claims”, not pending “cases”. Because the ALLISON defendants did not have any
claims pending at the time of enactment into law or its retroactive effective date, the court
determined that the FERA amended version of 31 U.S.C did not apply. U.S. v. Aguillon 34, and
U.S. v. Science Applications International Corp35 Hopper v. Solvay Pharms36, (claims for
reimbursement pending on that date), Ex. rel. Parato v. Unadilla Health37 similarly found the
32
Allison Engine Co. v. US ex. rel. Sanders, No. 95-cv-970 6th Cir(2009)
33
US ex. rel. ROGER L. SANDERS, et al., -v- ALLISON ENGINE COMPANY, INC., et al.,, Case No. 1:95-cv-
970 (US DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON October
27, 2009).
34
US v. Aguillon, 628 F.Supp.2d 542 Dist. Court, D. Delaware , June 24, 2009.
35
US v. Science Applications International Corp., 2009 WL 2929250, D.D.C. Sept. 14, 2009
36
Hopper v. Solvay Pharms, 588 F.3d 1318, 1327 n.3, 2009 cert. pet’n filed, 78 U.S.L.W. 3531 (U.S. Mar. 3, 2010)
(No. 09-1065);
37
US ex. rel. Parato v. Unadilla Health Care, No. 5:07‐CV‐76(HL), 2010 WL 146877, at * 4 n.4 (M.D. Ga.), 2010)
Page 23 of 41
The Plaintiff was served with the Civil Complaint on this action on November 24, 2009,
and refers to allegedly false claims made in 2001-2002, some 9 years past. All references to 31
U.S.C. § 3729 refer to the version of the FCA in force at the time of the putative false claim(s),
not this case. US v. KARRON Civil Complaint, 08 CV 10223 US SDNY, November 24, 2008..
One cannot automatically assume, even in the dim light of US ex. rel. Kirk v. Schindler
Elevator 601 F. 3d 94 (2d Cir. 2010) that the present case falls under the dark shadow of FERA.
Using the second circuits’ analysis of liability under Mikes v. Straus, 274 F. 3d 687 -
Court of Appeals, 2nd Circuit 2001 the Kirk court found the Materiality element hinged on the
This case regards conduct from 1997 to 2004, and the government has not identified any
claims for payment pending in 2008. Alleged false claims must satisfy the Allison Engine
materiality standard which calls for non-statutory language finding of fraud. In any event, they
must satisfy FERA or ALLISON, but not both. Karron Decl. Ex. 502, If the Plaintiff desires to
argue its complaint under FERA, it must restate its claims in a new complaint using the post
FERA FCA statute numbers explicitly, not en passant by footnote in the Plaintiffs Memorandum
Kirk also hinges on the issues of implied false certification is based on the express
clauses of the applicable statute to deny payment for vendors not in compliance. This stricture is
simply not in place with the ATP and other statutes. Karron Decl. Ex. 303 ATP simply does not
cut off awardees for technical issues of non-compliance, they work with awardees to bring them
Page 24 of 41
into compliance. Karron Decl. Ex. 301,307. They hate to say no, they are always willing to work
with awardees to fix problems, not impales them on it. Eisen Decl.119. That function seems to
The Plaintiff asserts that “...there is no dispute that the FCA claims here meet the
38
threshold requirements of 31 U.S.C. § 3729.” . This is incorrect. Additionally, there is no way
31 U.S.C § 3731(e) FCA Procedure Collateral Estoppel can be applied to “Same Transactions” if
they are not identified in the criminal case. The Defendant’s conviction was based on events that
occurred after the alleged claims were made and paid. The conviction was based on intentionally
incorrect, or unauthorized, as discussed in detail below. See Plaintiff’s Rule 56.1 Statement, §§
28-31.
The CE bar issue arises when the government moves for summary judgment. The
statutory CE standard are typically more stringent than the application of civil CE without the
statutory standard of ‘same transaction’ in ibid. The typical case scenario is modeled by U S. v.
1) First the court discusses the factual background on the criminal conviction or plea.
2) The court then moves on to outline the criteria for granting summary judgment under
Rule 56,i.e., the typically the absence of any genuine issue of material fact.
3) Next, the court juxtaposes the factual predicate of the criminal FCA complaint's
allegations to determine whether the “same transaction” is involved. U S.v. Kanelos, 1994
WL 148655 (N.D. Ill. April 20, 1994)
38
Memorandum of Law In Support Of Plaintiff’s Motion for Summary Judgment at 13
Page 25 of 41
4) The court then concludes that the collateral estoppel bar has been triggered.
5) Summary judgment must be granted if the Defendant if estopped from denying all of the
allegations of the FCA complaint.
US v. Sazama ibid does not apply here because Sazama pled guilty to Medicaid fraud,
which is what the FCA combats. Application of FCA collateral attack to a BEA finding of
The reach of FCA CE, however, is not without boundaries, recognized most prominently
in US v. Mickman, 1993 WL 541683 (E.D. Pa. Dec. 22, 1993), 52 F.3d 318 (1995) The
government argued that the nonjury findings of fact made by the district judge for sentencing
purposes should be included in the “essential elements” of the underlying offense to which the
guilty plea was entered. The FCA court rejected this interpretation:
[T]he preclusive effect of Section 3731(d) of the False Claims Act with respect to guilty
pleas extends only so far as the conduct described in the count or counts to which the
guilty plea applies. Section 3731(d) does not apply to conduct or counts alleged in the
indictment to which no plea of guilty or judgment of conviction is entered and to which
the charges are dismissed.”
disability checks in addition to the check that served as the basis for the plea should be included
within the reach of the collateral estoppel bar. However, because the defendant was convicted of
making a false statement on only one compensation form, summary judgment could not be
Page 26 of 41
i) Liability Does Not Equal Damages
The False Claims Act Collateral Estoppel bar does not obviate the government obligation
“Thus, it is incumbent on the United States to come forward with evidence of the
amount of damages to which it claims entitlement, and the fact that the issue of damages
was not before the jury in the criminal trial does not preclude the government from
introducing an affidavit in support of [its] motion.” 39
Conversely, even should the criminal sentencing court order restitution, that does not as a
matter of law establish the extent of FCA damages that could be awarded in a later civil
proceeding. A finding of criminal restitution does not limit, cap, or set a floor for FCA damages.
This indicates that the two systems of calculation of damages are separate and
independent. Therefore, it is incumbent in a FCA trial to establish its own finding of damages,
and not rely exclusively, or independently on the criminal trial findings. This works against CE,
in that CE would have to automatically find maximal damages and run into the Double Jeopardy
Limit of damages. In US v. Heart Trace of Nashua,40 defense counsel successfully argued that
the government could not claim greater FCA single damages than it had admitted in sentencing
stipulations regarding the amount of loss occasioned by the offenses underlying the conviction.
The greater amount sought in the FCA case would have to be proved by the government and
could be contested by defendants. Only the facts absolutely “material and necessary” to the
criminal conviction are embraced within the FCA CE ban – all other facts have to be proven by
the government at trial.41 In U.S. v. Emergency & Patrol Air Services, the defendant is estopped
only from arguing facts related to the “same transaction” as was the basis for the criminal
39 US v. Nardone, 782 F. Supp. 996, 998 (M.D. Pa. 1990)
40
US v. Heart Trace of Nashua, Inc., 2001 WL 274804 (D.N.H. Jan. 10, 2001)
41
US v. Boutte, 907 F. Supp. 239, 241 (E.D. Tex. 1995), aff'd, 108 F.3d 332 (5th Cir. 1997).
Page 27 of 41
conviction42. That said, Seiffert v. Green found the purported criminal court finding must be
“directly at issue and essential to the criminal judgment.”43 Allegations to which the government
seeks to apply the CE bar must be part of “the same transaction” as that recounted in the
conviction44. If the criminal conviction is for the general crime of conspiracy, without a finding
of specific actions taken in pursuance of the conspiracy, then CE can be invoked only for
proffered and accepted by the court in the criminal trial. There are none. The only evidence as
to improper spending in project year 1 was GX114, and it does not point to any individual
transaction. The Plaintiff’s “56.1” Statement, Paragraph 30 Response and the Declaration of
Dunlevy delve into a detailed analysis of GX114. From the analysis we must raise significant
While 18 § 666 [BEA] covers a wide swath of territory, the Defendant was convicted
specifically under subsection (a)(1)(A) above, and specifically the clause that prohibits
42
US v. Emergency & Patrol Air Services, Inc., 1988 WL 107576 (E.D. Pa. Oct. 13, 1988).
43
Seiffert v. Green, 1987 WL 26670 (E.D. Pa. Dec. 8, 1987).
44
US v. Ford, 19 F.3d 20 (6th Cir. 1994).
45
. US ex. rel. Miller v. Bill Harbert International Construction, Inc., 2007 WL 851857 (D.D.C. March 14, 2007)
46
Government’s Rule 56.1 Statement, § 1.
Page 28 of 41
Indeed, in its brief to the Second Circuit on the appeal from the criminal verdict47, the
Government specifically argued that fraud was no part of the elements of 18 U.S.C. § 666. The
only relevant point, according to the prosecution, was whether she knew that the monies were
applied incorrectly to categories of expenditure not authorized by the Government, even without
intent to defraud, and even if used for otherwise legitimate purposes. Here is the pertinent
In contrast to the bank embezzlement statute, 18 U.S.C. § 656, which requires the
Government to prove the additional element that “the defendant intended to injure or
defraud the bank,” see United States v. Docherty, 468 F.2d 989 (1972); Sand, Instr. 24-2,
there is no legal authority of which the Government is aware — and none that Karron has
cited — imposing an analogous specific intent-to-defraud element for Section
666(a)(1)(A).48
Thus, in the above section of the U.S. Criminal Appeal Brief, the Government argues that
Karron’s conviction under 18 U.S.C. § 666(a)(1)(A) BEA do not have as an element any intent
to commit fraud. In addition, the Government also argued that Karron’s conviction does not
misuse of federal funds “for otherwise legitimate purposes”. The Court explained its reasoning
as follows:
47
Karron Declaration Exhibit 68.t
48
U.S. v. Karron, US Court of Appeals For The Second Circuit, Brief for the U. S, No. 08-5287-
Cr, “U.S. Criminal Appeal Brief (2009), Karron Declaration Ex 68, at 25.
49
US v. Urlacher, 979 F.2d at 938 “Otherwise Lawful purpose”, Karron Declaration Exhibit 172
50
US v. Urlacher, 979 F.2d at 938
Page 29 of 41
b) Section 666(a)(1)(A) prohibits embezzling, stealing, obtaining by fraud, converting,
or intentionally misapplying funds. The first four prohibitions cover any possible
taking of money for one’s own use or benefit. Intentional misapplication, in order to
avoid redundancy, must mean intentional misapplication for otherwise legitimate
purposes51.
Thus, the Government itself has acknowledged that Karron’s conviction under 18
U.S.C. § 666 was not obtained on the basis of fraud or false statements, but rather
misapplication of funds received. The conviction does not mean that Karron made knowingly
false statements. Rather, the most that can be said is that after Karron received money from the
Government, she intentionally applied those funds to expenditures that she knew to be outside
the budget or that she intentionally categorized those funds incorrectly. While the Government
may attempt to prove that false statements were made, that proposition cannot be established by
Unlike its previous argument in the criminal case, where the Government argued that the
only relevant question was whether funds were intentionally misapplied, the Government is now
arguing that the criminal conviction under 18 U.S.C. §666 included a scienter requirement with
regard to claims.
The Government itself cites in its brief a case which demonstrates that FCA claims must
There is an important distinction here between Karron’s knowing that monies expended
involved goods and services that had been incorrectly categorized, and Karron’s knowledge of
51
U.S. Criminal Appeal Brief Karron Declaration Ex 68 at 32
52
U.S. ex. rel. Mikes v. Straus, 84 F.Supp.2d 427, 433 (S.D.N.Y. 1999) (professional negligence does not meet the scienter
requirement, even though the Medicaid claims to the Government may have been medically unnecessary or improperly
performed)
Page 30 of 41
the falsity of her claims. The first, i.e., knowledge that monies were incorrectly categorized, was
a required element of the criminal offense under which Karron was convicted. The second, i.e.,
knowledge that a claim was false, was not an element of the BEA offense, but is an element of
an FCA suit. That difference creates a large gulf between the criminal verdict and the present
lawsuit.
The Government is required to prove the element of scienter as to the claims that were
not part of the criminal case. The Defendant disputes that the element of scienter as to the
claims exists in this case, and is entitled to bring evidence to demonstrate the non-existence of
that fact.
Significantly, in its Rule 56.1 Statement submitted in support of this motion, the
Government nowhere makes specific reference to anything indicating that Karron did, in fact,
have knowledge of the falsity of claims. Indeed, Benedict clearly knew what he meant by what
he wrote when he exonerated Karron in submitting restated SF270’s. Karron Decl. Ex. 59.
Rather, the Government’s Rule 56.1 Statement states that expenditures are allegedly
“personal,” “unallowable, unallocable or [in excess of] budget limitations,” and “unauthorized.”
Nowhere is there any statement that claims submitted by Karron to the Government for the
purpose of drawing down funds were false and that Karron knew them to be false. With the
forensic proof that Karron had significant personal funding in play, Karron’s funding of
overhead and otherwise necessary disallowed costs out of pocket does not imply
Page 31 of 41
Even assuming arguendo that Karron is liable for damages, the full amount CASI
received from the ATP under the Cooperative Agreement is not the appropriate basis
This implies that all other costs did appear on the ‘budget’. How can the government be
The summary judgment in this case, as demanded by the Plaintiff, would result in a
monumental civil fine, which, if left uncontested by a trial, would amount as much as 5 million
dollars and ‘go to the [defendant’s] grave’. Given collapse of the Defendant’s income earning
ability, this would amount would be uncollectable to the Government. This is especially cruel
and unusual punishment without a deterrent effect; it has a chilling effect on creative researchers
seeking federal funding, the opposite of the intentions of the ATP statute. 15 § 278n.. A civil
punitive judgment of 5 million dollars on an already criminal judgment of 120 thousand dollars
US v. Halper53 raised the issue of Double Jeopardy in FCA collateral attacks after
criminal convictions. When does a monumental civil fine approach Constitutional borders of
Page 32 of 41
In response to judges and juries which award high punitive damages verdicts, the
Supreme Court of the United States has made several decisions which limit awards of punitive
damages through the due process of law clauses of the Fifth and Fourteenth Amendments to the
United States Constitution. In a number of cases, the Court has indicated that a 4:1 ratio between
constitutional impropriety (The Single Digit Ratio Rule)and that any ratio of 10:1 or higher is
almost certainly unconstitutional BMW v. Gore 54 the Court ruled that punitive damages must be
reasonable, as determined based on the degree of reprehensibility of the conduct, the ratio of
punitive damages to compensatory damages, and any criminal or civil penalties applicable to the
conduct. In CAMPBELL55, the Court held that punitive damages may only be based on the acts
of the defendants which harmed the plaintiffs. In Simon v. San Paolo 56, the California Supreme
Court addressed Campbell “[T]hat "few awards" significantly exceeding a [A] single-digit ratio
What is the purpose of the Plaintiff’s pursuit of this FCA collateral attack against the
plaintiff? It is punitive or compensatory The defense never proffered forensic evidence to the
54
BMW of North America, Inc. v. Gore (1996)
55
STATE FARM MUT. AUTOMOBILE INS. CO.V. CAMPBELL (01‐1289) 538 U.S. 408 (2003)P.3d
56
Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal. 4th 111182
Page 33 of 41
4. The TENENBAUM precedent
Massachusetts. Karron Decl. Ex 130. the court accepted the Constitutional challenge to a
monstrous jury award for the relatively minor crime of downloading songs from the internet.
In U.S. v. Bajakajian57 the Supreme Court ruled that it was unconstitutional to take
$357,144 from a person who failed to report his taking of more than $10,000 in U.S. currency
out of the U.S. In what was the first case in which the Supreme Court ruled a fine violated the
Excessive Fines Clause, the Court ruled that it was "grossly disproportional" to take all of the
money which Bajakajian attempted to take out of the U.S. without reporting trying to do so. In
describing what constituted "gross disproportionality," the Court could not find any guidance
from the history of the Excessive Fines Clause and so relied on Cruel and Unusual Punishment
Clause case law. The Supreme Court has used the “Evolving Standards of Decency” standard
not only to say what punishments are inherently cruel, but also to say what punishments that are
not inherently cruel are nevertheless cruelly disproportionate to the offense in question 58 The
crime is not reprehensible. The damages are Draconian and do not serve the purpose of
Perhaps had the ATP program had known that Karron was going to be convicted of a
felony, or that Karron was a Transsexual, perhaps they would have passed over her(then him) for
the award to a ‘more responsible and eligible’ recipient. Karron Decl. Ex. 515. However, the
standards of the ATP award not based on the awardee, but on the quality of the proposal. Eisen
57
US v. Bajakajian, 524 U.S. 321 (1998),
58
TROP v. DULLES 356 U.S. 86 (1958)
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Decl. Ex.122 Karron did not lie during the awardee vetting process. Karron Decl. Ex. 3; ATP
knew who (but not what) they were getting into bed with in this award.
OMB Circulars A-21 and OMB Circular A-122 intentions are “ Federal Government
bear its fair share of total costs, determined in accordance with generally accepted
individual items of cost. …., such cost sharing or matching shall not be accomplished
Permission is not required for many budget and program plans : 15 CFR § 14.25 (4) “the
prior approval requirements described in paragraph (e) of this section are automatically waived
(i.e., recipients need not obtain such prior approvals) .” “(f) The recipient may not transfer
funds among direct cost categories [if the] cumulative amount of such transfers exceeds or is
expected to exceed 10 % of the total Federal and non-Federal funds authorized … This does
not prohibit the recipient from requesting Grants Officer approval for revisions to the
budget… (g) … do not require prior approval.” … . “revision is still under consideration
at the end of 30 calendar days, the Grants Officer shall inform the recipient in writing of
the date when the recipient may expect the decision”. ATP does not care about the budget
except to be assured that the public money it is entrusted with is spent wisely, not wasted, and
for the purpose intended, not slavish adherence to budgets just to expend money with no benefit
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u) ATP was tacitly or minimally responsive.
The ATP project management were required to respond to budget amendment requests in
30 days. If the ATP representative was unable to respond in 30 days then it she was obligated by
under 15 CFR §14.25(m) to make written commitment for a definitive answer date. At no point
during the grant was a written response made on this topic. At all times, the ATP program
management, to their credit, was working toward find a way to say ‘Yes’. Eisen Decl. Because
of this lack of an affirmative negative, and given Karron’s overfunding of the project, Karron
had in fact justification to continue. Karron Decl. Ex. 17. The only risk would be that Karron
would have to pay for some activities instead of ATP; the justification was there from the
program management proud of how ‘un bureaucratic’ an agency it was. Eisen Decl. Ex.119.
a) Kickoff Memo from Orthwein (Karron Declaration Exhibit 5) shows early significant
involvement.
Karron Declaration Exhibit 1-6 shows, quarterly technical reports were submitted and
accepted. These reports not only detail the technical progress and scientific difficulties, but also
the contractual and business issues faced by the CASI startup. Ex. 14 (ATP Proposal Ex. 14
Instructions, 2001), Karron Decl. Ex. 98, has a cover instruction page that contains this
disclaimer:
We recognize that unexpected events occur frequently in R&D projects, and that
budgets may need to be changed as a project proceeds. Don’t fear that by providing a
multi-year budget beyond the first year, you will be locked into those details. ATP
allows a certain amount of flexibility in moving funds from one line item to another as
circumstances change. …[Emphasis Added]
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Lide, in direct examination apparently incorrectly answers the question of which Rule
rules: A. "Regardless of whether they are allowable under the federal cost principles, the
following are unallowable under ATP:" Q. What does the first of that phrase mean, "Regardless
of whether they are allowable under the federal cost principles."? A. It means what's stated here
overrules any other federal cost principles. Trial Transcript Pages 232 et seq. Lines 16-et seq.
But the federal cost principles say that they cannot be arbitrarily overruled; they rule, not the
"[T]he mere existence of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment; the requirement is that there be
no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)
[emphasis removed]. A dispute is considered to be genuine only if "the evidence is such that a
reasonable jury could return a verdict for the nonmoving party." Id. Celotex Corp. v. Catrett,
477 U.S. 317 (1986).First National Bank of Arizona v. Cities Service Co.391 US 253,391 US
289(1968)To avoid summary judgment, the nonmoving party "must do more than simply show
that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586,
(1986)
A District Court may not resolve disputed factual issues on Summary Judgment if the
nonmoving party presents more than a “Scintilla of Evidence”. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252 (1986). In this case, the pro se Defendant Karron has refuted or shown moot
31 of 31 of the movants “56.1” statements of material fact. The Defendant presents Karron
59
Karron Decl. Ex. 512.
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Decl. Ex. 17, and the Dunlevy Declaration Exhibits provides comprehensive forensic analysis.
The moving party cannot now show conclusively that there is no genuine issue of material fact;
The Plaintiff has failed to show an undisputed qualifying fraud transaction , the sine qua
non for a FCA conviction. Karron Decl. Ex. 501, 513. There was no fraud transaction proven in
the Defendant’s BEA criminal conviction. This lack of a fraud requirement was sustained on
appeal. US v. Karron, On Appeal, Brief for the United States(2009) at Point 1(B)(2). Summary
Judgment cannot be granted in this case because the Fraudulent Transaction standard required
for a FCA summary conviction is not established. Karron Decl. Ex. 510. Allison Engine Co. v.
US ex. rel.Sanders (No. 07-214) 471 F. 3d 610,(vacated and remanded). . At the very least, a
jury is required to establish knowing fraud transaction de novo. Karron Decl. Ex. 512, 530,514,
515.
leave any alleged genuine undisputed issues of material undisputed, the court may invoke FRCP
56(d) “Case Not Fully Adjudicated on the Motion”, (1) ”Establishing Facts” and (2)
“Establishing Liability”. All 6 Claims are addressed above, and all 31 Items in the Movants
“56.1” statement are answered. Because the Defendant has presented full panoply of counter
evidence, and argument, there do not exist gaps of agreed no material dispute, into which a
(1) With respect to “Establishing Facts”, The Defendant has rebutted, with copious
specific citation to evidence admissible at trial, each and every “material fact[s] [are not]
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genuinely at issue” of those raised by the Movant. Rule 56(d)(1) advises “The court should so
determine by examining the pleadings and evidence and by interrogating the attorneys. The
court “should then issue an order specifying what facts [if any remain] — including items of
damages or other relief — are not genuinely at issue” The surviving facts so specified must be
extremely important that the Non Movant not leave any material facts at issue uncontested, and
those that are contested with references to evidence that would be admitted at trial. This
effectively means that the Non Movant case-in-chief must be successfully argued such that the
court is convinced that there exists a significant probability of success at a trial. Karron Decl. Ex.
512, 530,533.
(2) With respect to “Establishing Liability”, The Defendant is in a situation whereby they
are estopped from arguing no liability, yet in (1) above the Defendant will introduce convincing
material evidence, necessary for evaluating damages, yet also revealing Plain Error in the
The auditors conspired to make materially false audit in ignoring Karron’s contribution.
The government’s audits were copied from the CASI hostile audit, ignoring basic
principles of Auditing: Completeness, Independence, and OMB Cost Principles. Karron Decl.
Ex. 61,62, 135, 505. The defendant’s tax paid salary, turned back to the project, was willfully
ignored, by refusing to trace funds60. Karron Decl. Exhibit Group 22. The Defendant’s criminal
liability was for spending funds that were her property with which to spend as she pleased,
60
Smith, Lionel D.; (1997)The law of tracing CLARENDON PRESS • OXFORD
http://www.questia.com/read/55471201
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obviating all of the testimony that the Defendant willfully ignored ATP spending rules: because
she was spending her own money to pay program and non-program bills. Dunlevy Decl.
The Movants complaint raised 6 claims in its initial complain. The Movant’s “56.1”
statement raised 31 items with issues of alleged uncontested fact that the Defendant has
assiduously rebutted with references to evidence admissible at trial. Complaint 6 claims are
The Defendant has raised significant issue with the government’s evidence used to
convict the Defendant in the Criminal Trial with prima facie evidence that the audit numbers
alleging misappropriation just don’t add up, are made up, and otherwise just in themselves
mistakes of fact by the Plaintiff. Karron Decl. Ex. 17, 82. The only fact found by the jury was
some amount of funds greater than five thousand dollars, unspecified in detail, was misapplied.
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iv) 42x penalty is second punishment;
Digitally signed
LLC
o=CASI LLC,
cn=CASI LLC
Date: 2010.09.29
16:35:51 -04'00'
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