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In the United States Court of Appeals for the Ninth Circuit

Nos. 12-35238, 12-35319

OBSIDIAN FINANCE GROUP LLC, ET AL ., Plaintiffs-Appellees and Cross-Appellants, v. CRYSTAL COX, Defendant-Appellant and Cross-Appellee.

FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON Case No. 3:11-CV-00057-HZ Honorable Marco A. Hernandez

BRIEF OF AMICUS CURIAE MARTIN CAIN IN SUPPORT OF NEITHER PARTY

Allan B. Gelbard, Esq. Law Offices of Allan B. Gelbard 15760 Ventura Blvd., Suite 801 Encino, CA 91436 (818)386-9200 XXXEsq@aol.com Counsel for Amicus Curiae, Martin Cain

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TABLE OF CONTENTS

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii I II III STATEMENT OF INTEREST .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 INTRODUCTION AND SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . 2 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 A The Montana Board of Realty Regulation Found Cox Engaged . . . . . 5 In Extortionate Behavior. The MBRRs Final Decision is Judicially Noticeable. . . . . . . . . . . . . . . . 8

B IV

CONCLUSION .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

DECLARATION OF ALLAN B. GELBARD, ESQ. .. . . . . . . . . . . . . . . . . . . . . . . . . . 11 Certificate of Compliance .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 EXHIBIT A - Findings if Fact, Conclusions of Law and Final Order . . . . . . . . . . . 14 EXHIBIT B - Notice of Proposed Board Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

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TABLE OF AUTHORITIES

Cases Mack v. S. Bay Beer Distrib. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 (9th Cir. 1986) 798 F.2d 1279 Mir v. Little Co. of Mary Hosp . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 (9th Cir. 1988) 844 F.2d 646

Statutes Federal Rules of Evidence 201(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Federal Rules of Evidence 201(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

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I STATEMENT OF INTERESTS Amicus Curiae Martin Cain (Amicus) hereby moves for leave to file this brief because counsel for Appellant Crystal Cox refused to consent to its filing. David Aman, counsel for Appellees Obsidian Finance Group LLC and Kevin Padrick has consented to its filing.1 No partys counsel authored any portion of this brief, and no party has contributed money intended to fund the preparation or submission of this brief. No person other than Amicus contributed money intended to fund the preparation or submission of this brief. Amicus is the president of Dylan Energy, Inc., and a victim of an extortion plot by Appellant Crystal Cox (Cox). In apparent retaliation for Amicus decision not to hire her as a real estate broker, Cox purchased the domain name <martincain.com> and used it to engage in defamatory and extortionate conduct identical to her actions against Appellees in this case. Worse yet, Cox egregiously used information that Amicus had provided to her, in confidence, in violation of her

Amicus acknowledges that this brief may be untimely pursuant to 9 th Cir Rule 292(e)(1). Amicus requests the Court permit the untimely filing as the Final Order from the Montana Board of Realty Regulation, the central holdings of which being the principal reason for the filing of this brief, was not issued until February 8, 2014. Therefore, compliance with Rule 29-2(e)(1) was not possible. -1-

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duty of confidentiality as a licensed real estate broker. Cox then demanded payment of $550,000 for the <martincain.com> domain which she was using to defame Amicus. It is important to Amicus that Coxs extortionate conduct be adequately described in the Courts opinion. Should the Court decide that Coxs argument has merit, Amicus submits that the Court should cite to the judicially noticeable public records provided herein, rather than the New York Times, as a source for describing Coxs conduct. If Coxs petition for rehearing is granted, the Ninth Circuit should cite to the final decision of the Montana Board of Realty Regulation (MBRR) regarding Coxs extortion of Amicus to its opinion.

II INTRODUCTION AND SUMMARY OF ARGUMENT Amicus submits this proposed brief in light of the procedural events which have taking place subsequent to the Courts entry of its Opinion on January 17, 2014. Amicus has reviewed both Coxs motion for rehearing, filed by Professor Volokh, Mr. Randazzas motion to appear as amicus curiae, Coxs opposition to the motion and Mr. Randazzas reply. Having reviewed these documents, Amicus is compelled

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to provide this Court with judicially noticeable evidence as to Coxs extortionate conduct, that of which he was the actual victim. Cox seeks to have the embarrassing factual context stricken from the Ninth Circuits opinion. Coxs opposition to Mr. Randazzas brief infers that his input is not helpful and/or important enough to warrant amicus intervention. Yet Cox submitted her motion - and her Opposition to Mr. Randazzas brief - at least in part to remove certain crucial underlying context from the Ninth Circuits opinion; that Ms. Cox has a history of behavior that can only be described as extortionate. Amicus believes that this statement is truthful, important to the decision, and should be more thoroughly supported. Further, Amicus contends its inclusion is imperative to the First Amendment implications of the Courts otherwise correct opinion. In attempting to excise the Courts reference to her underlying extortionate conduct from the opinion (Petition for Rehearing), Cox apparently provoked Mr. Randazza to provide the Court with more definitive evidence as to her conduct, directed at himself and at others. In her opposition, Cox asserts that the MBRR findings presented by Mr. Randazza - as they were at the time - were merely proposed and thus should be disregarded. (Cox Opp. to Mot. for Leave to File

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Amicus Brief) Amicus hereby seeks to present this Court with the MBRRs final Findings of Fact, Conclusions of Law, and Final Order (Order).2 Amicus here is the actual victim referred to in the MBRRs proposed finding of facts and conclusions of law (Randazza amicus Brief, Exhibit. B). While it is true that those were merely proposed findings of facts and conclusions of law, Amicus is in possession of the final Order (a true and correct copy of which is attached hereto as Exhibit A 3). The MBRRs Order is even harsher than the proposed findings, to which Cox and her counsel objected. (Exhibit A, pages 1-3) In fact, the MBRR found that the proposed findings were too generous to Ms. Cox. They adopted all of the factual findings but imposed an even harsher penalty upon her; revoking her real estate license for a full six months, and imposing continuing education duties and other restrictions upon her that virtually ensure that she will never again hold a real estate license in Montana (and/or possibly anywhere else). (See Exhibit A, at 2)

Irony is a disciplinarian feared only by those who do not know it, but cherished by those who do. (Sren Kierkegaard, Irony as a Mastered Moment: The Truth of Irony," pt. 2, The Concept Of Irony (1841, trans. 1966)). The Findings of Fact, Conclusions of Law, and Final Order are at Exhibit A, Pages 1-3. The Proposed Findings of Fact and Conclusions of Law were referred to in, and attached to, the final order and are included in Exhibit A at pages 5-13. -4-

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Cox argues that the Court should have not have cited to The New York Times, perhaps the most well known, well respected, and definitive news source in the United States (if not the world). She is, perhaps, within her rights to so argue. Having taken issue with the Courts choice of sources, she received an unwelcome answer from Mr. Randazza, one of her other victims, in the form of a proposed amicus brief citing four definitive sources to support the Courts description of Ms. Coxs behavior. Cox then decided to argue the point as to the sufficiency of at least one of those sources, an issue that Amicus here is in a unique position to bring before the Court. Having raised the issue, Cox has opened the door to allow the Ninth Circuit to take into account the judicially noticeable final Order of the MBRR and include it in the record in this case.

III ARGUMENT The Courts current opinion accurately reflects Coxs history of extortionate conduct. If anything, the current opinion is too soft in that area. However, to the extent the Court wishes to supplement its citation to The New York Times with judicially noticeable documents, the MBRRs final Order is the most appropriate document to cite.

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The Montana Board of Realty Regulation Found Cox Engaged In Extortionate Behavior.

Amicus complaint with the MBRR arose from his decision not to do business with her (Exhibit A at 6-7, Exhibit B at 3-4). Based on Amicus complaint, the MBRR initiated an action finding: Cox created a web site named www.martincain.com and, according to the complainant, posted a number of what Mr. Cain considered to be libelous and defamatory comments, messages, and threats. In the blog posts, Ms. Cox insinuated that Mr. Cain was attempting to have her assassinated. Ms. Cox offered to sell the web site to Mr. Cain. He indicated that he believed this was an attempt at extortion on the part of [Cox]. (Exhibit A, at 7-8) Cox did not deny Cains allegations. She admitted to

creating the <martincain.com> domain name and writing its content. (Exhibit B at 4) Cox responded to the complaint stating that she is an investigative blogger and that this matter has nothing to do with her real estate broker license. (Exhibit A at 7, Exhibit B at 4) Upon a screening panels review of Amicus allegations and Coxs response, it found that there was reasonable cause to believe that Ms. Cox violated one or more Montana statutes or rules. (Exhibit B at 1) The disciplinary proceedings, evinced in Exhibit A, then proceeded to their conclusion.

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After providing Cox an ability to be heard, the MBRRs adjudication panel unanimously voted to adopt the proposed findings of fact developed by the MBRR during its investigation of Cox and Amicus complaint. (Exhibit A at 1-2) Within the findings of fact they adopted, the MBRR found that Cox published defamatory statements about Amicus on <martincain.com>, based on information she obtained from Amicus by violating his confidences (Exhibit A at 7, 9-10). The MBRR further adopted this finding of fact: O n her F ebruary 17, 2011 blog on the www.martincain.com website, [Cox] pos[ted] Montana Man Admits to Working With Martin Cain to Set Me Up, Harm me, Kill me. [] Afterwards, the licensee deleted the February 17, 2011 blog and then sent an e-mail to Cain telling him that he could purchase the www.martincain.com website and domain name for $550,000. (Exhibit A at 7-8) These final findings dovetail with those in Mr. Randazzas actions against Cox before the United States District Court for the District of Nevada and World Intellectual Property Organization (see Randazza amicus Br.). Nearly identical to the facts of Mr. Randazzas cases, and the facts of the case before the Court, Cox purchased Amicus name as a domain name and used it to distribute false and defamatory statements about him (Id ). Once Cox had saturated the site (and all Internet search results for Amicus name) with her untrue claims,

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she offered to sell it to Amicus and cease the damage she caused for the fee of $550,000. (Id .) The MBRRs findings in Amicus case are yet another instance of an adjudicative body reviewing Coxs conduct, and thereafter holding that she engaged in the extortionate practice of seeking payment for retraction of her own false and harmful statements.4

The MBRRs Final Decision is Judicially Noticeable.

As written, the Courts January 17, 2014 Opinion is correct. Though the Court cited an article by The New York Times to support the position that Cox has a history of seeking payments in exchange for retraction of her defamatory statements, the facts underlying the Courts observation are never-the-less accurate. However, should the Court grant Coxs petition for rehearing, the MBRRs final decision should be reflected in the Courts updated opinion. As Cox objects to the Court using The New York Times as a basis for finding she seeks
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As a penalty for her improper conduct, the MBRR punished Cox by 1) suspending her real estate license for 6 months; 2) placing Coxs license on probation for 2 years; 3) requiring Cox to complete 8 hours of approved ethics education before returning to practice; 4) fining Cox $1,000 before returning to practice; 5) requiring Cox to practice under the supervision of a licensed real estate broker, approved by the MBRR adjudication panel; 6) prohibiting Cox from supervising other licensed brokers during her probation; and 7) barring Cox from applying for any other real estate license. (Exhibit A at 2) -8-

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payments for retraction, the Court should use the MBRRs attached decision to support its findings. (Exhibit A) Federal Rules of Evidence 201(b) and (c) allow the Court to take notice of the MBRRs final decision. Mir v. Little Co. of Mary Hosp ., 844 F.2d 646, 649 (9th Cir. 1988), citing Mack v. S. Bay Beer Distrib ., 798 F.2d 1279, 1282 (9th Cir. 1986) (taking judicial notice of records in state administrative proceeding). Counter to Coxs brief opposing Mr. Randazzas efforts to inform the Court of Coxs extortionate activities (Coxs Opp. to Mot. for Leave to File Amicus Brief), Amicus does not ask for these findings to be binding on the Court, or to have preclusive effect. Amicus simply wishes to provide the Court with admissible

evidence that they exist, and that its assertion that Cox has a history of extortionate activity is well-founded. In addition to the instances Mr. Randazza referenced in his brief (Randazza Amicus Brief), Amicus seeks to bring to this Courts attention the MBRRs final decision regarding Cox (which did not yet exist at the time Mr. Randazzas filed his brief) which further confirms her history of extortionate conduct. ///

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IV CONCLUSION Coxs history of seeking exorbitant payments in return for her retraction of her own intentionally harmful and defamatory postings constitutes extortion. The MBRRs final decision completely justifies this Courts decision to state Cox has a history of extortionate conduct. If the Courts opinion is revisited, the Court should specifically include the MBRRs final decision, and the findings of other bodies identified by other amici, in discussing Coxs history of unlawful conduct.

Dated: February 25, 2014

Respectfully submitted:

s/Allan B. Gelbard, Esq. Allan B. Gelbard, Esq. Law Offices of Allan B. Gelbard 15760 Ventura Blvd., Suite 801 Encino, CA 91436 (818)386-9200 XXXEsq@aol.com Counsel for Amicus Curiae, Martin Cain

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DECLARATION OF ALLAN B. GELBARD, ESQ.

I, Allan B. Gelbard, Esq.,having personal knowledge of the matters set forth herein, having obtained 18 years of age, and of sound mind and body, state as follows: 1 I am an attorney, admitted to practice before this Court. I am counsel for

Martin Cain in this matter, and prepared the motion for leave to file an amicus curiae brief, as well as the proposed amicus curiae brief, that this declaration accompanies. 2 David Aman, counsel for Appellees Obsidian Finance Group LLC and

Kevin Padrick, confirmed by e-mail on February 25, 2014 to the filing of my proposed amicus curiae brief. 3 On February 25, 2014, I contacted Professor Eugene Volokh, counsel for

Appellant Crystal Cox, by telephone to request his consent to my filing of my amicus curiae brief. 4 On behalf of Appellant Crystal Cox, Mr. Volokh contacted me by e-mail

on February 24, 2014, refusing to consent to me filing this amicus curiae brief. 5 Attached hereto as Exhibit A is a true and correct copy of the Findings of

Fact, Conclusions of Law, and Final Order issued by the Montana Board of Realty

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Regulation on February 14, 2014 (at pages 1-4) including the Proposed Findings of Fact and Conclusions of Law, issued on July 5, 2013 (at pages 5-13). 6 Attached hereto as Exhibit B is a true and correct copy of the Notice of

Proposed Board Action issued by the Montana Board of Realty Regulation on October 12, 2012.

I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.

Executed on February 26, 2014 in Encino, California.

s/Allan B. Gelbard, Esq. Allan B. Gelbard, Esq.

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CERTIFICATE OF COMPLIANCE PURSUANT TO CIRCUIT RULE 32-1 I hereby certify that pursuant to Federal Rule of Appellate Procedure 29(d) and 32(a)(7)(B) and (C), and Ninth Circuit Rule 31-1, the following brief is proportionately spaced, has a typeface of 14-point Times New Roman font, including footnotes, and contains approximately 2721 words. I rely on the word count of Word Perfect, the computer program used to prepare this brief.

Dated: February 25, 2014

Respectfully submitted: s/Allan B. Gelbard, Esq. Allan B. Gelbard, Esq. Law Offices of Allan B. Gelbard 15760 Ventura Blvd., Suite 801 Encino, CA 91436 (818)386-9200 XXXEsq@aol.com Counsel for Amicus Curiae, Martin Cain

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