forged signatures filing 12/20/10

CERT. MERRILL VER: JD

TO THE DEPUTY PRESIDENT OF THE PROVINCIAL COURT OF JUSTICE OF SUCUMBÍOS:

I, Adolfo Callejas Ribadeneira, Counsel of Record for Chevron Corporation, in summary verbal proceeding No. 002-2003, brought against my client by María Aguinda et al., respectfully state to you:

My client has obtained evidence of a forgery dating to the commencement of the lawsuit that renders this case null and void ab initio. Because of having recently become cognizant of evidence demonstrating that the plaintiffs’ lawyers submitted in this proceeding fraudulent expert reports, Chevron Corporation retained a specialist who has examined the signatures on the document whereby the plaintiffs attempted to ratify and appropriate the Complaint submitted on their behalf by Alberto Wray as counsel of record for Angel Justino Piaguage Lucitante, and also designate Dr. Wray as joint counsel of record for all plaintiffs.

The specialist, a highly regarded handwriting expert with over forty years of experience, has concluded that the signatures of twenty plaintiffs present on that document are not genuine (or were forged) and has issued a report, attached as Annex 1, detailing his significant conclusions.

In accordance with Ecuadorian law, Your Honor must declare this case null and void and lacking all value because a foundational document on which the proceeding as a whole was based, was forged, that is, that the entire proceeding was based upon an illegal act which renders it null and void in its totality. The entire proceeding is based on this illegal act, and consequently the proceeding lacks consent and validity. To the extent that you find the need for additional evidence before taking that step, Your Honor you have the power to appoint a technically qualified expert to analyze the attached report and the authenticity of the signatures in question, and to ratify or rectify said report. This without prejudice to your right to remand the proceeding to the Office of the Attorney General.

I. THE SPECIALIST REPORT OF GUS LESNEVICH CONCLUSIVELY PROVES THAT THE SIGNATURES OF TWENTY PLAINTIFFS ON AN ESSENTIAL CASE DOCUMENT ARE FORGERIES:

In light of recent evidence showing that the plaintiffs’ attorneys submitted fraudulent expert reports during this proceeding, my client commissioned Gus R. Lesnevich, a forensic document examiner, to examine the signatures allegedly belonging to the plaintiffs that appear on the motion ratifying the complaint filed by Albert Wray, with only his signature as legal representative of Angel Justino Piaguage Lucitante and that designates Dr. Wray as joint counsel of record for the plaintiffs, a key document in this case.

- 2 – CERT. MERRILL VER: JD

Mr. Lesnevich has completed his analysis of the signatures presented in the ratification of the Complaint and appointment of Alberto Wray as joint counsel of record filed along with the Complaint on May 7, 2003, and has conclusively determined that the purported signatures of twenty individuals on that document are forgeries.1

Mr. Lesnevich’s analysis is based on his extensive experience in the field of forensic document examination. In an unrelated case, the United States Court of Appeals for the Third Circuit has referred to Mr. Lesnevich’s experience and qualifications in this field as both “extensive” and “impressive.”2 The panel of that court, which included then-Judge and now- United States Supreme Court Justice Samuel Alito, detailed those qualifications:

The government's handwriting expert, Gus Lesnevich, testified that he had been employed as a forensic document examiner, or a handwriting expert, for approximately 34 years... He had testified as an expert for approximately 32 years in approximately 500 criminal and civil cases.

Lesnevich is a member of several professional associations and is certified by the Department of Defense and the American Board of Forensic Document Examiners. Lesnevich has analyzed documents for the governments of the United States, South Korea, South Vietnam, Australia, New Zealand, Great Britain, and France... Lesnevich testified about some of the prominent parties involved in cases he worked on as a handwriting expert: the Iran-Contra Affair, Oliver North, Richard Secord, Caspar Weinberger, Michael Milken, Leona Helmsley, Imelda Marcos, the office of Kenneth Starr, and organized crime cases.3

At my client’s request and based on this extensive experience, Mr. Lesnevich conducted an examination of the above-mentioned document and concluded that the signatures of twenty plaintiffs were not genuine. He arrived at this conclusion by comparing the plaintiffs’ purported signatures on this document with known copies of the plaintiffs’ signatures from their individual identity cards, or official identification documents.4 By way of this comparison, Mr. Lesnevich identified significant features of simulated signatures on the document presented at the beginning of the proceeding and has provided a comparison chart, attached as Annex 2,

1 Mr. Lesnevich’s analysis of other documents is ongoing, and both he and my client reserve the right

to supplement this motion as more evidence is uncovered. Nonetheless, Mr. Lesnevich has found preliminary indications of forgeries in other key case documents. See Lesnevich Report at 4. These preliminary findings heighten the need for Your Honor, at minimum, to appoint an expert to examine this issue.

2 United States v. Rutland, 372 F.3d 543, 544 (3d Cir. 2004).

3 Id.

4 Lesnevich Report at 8.


in order to demonstrate the similarities. In addition to his analysis of the signatures, Mr. Lesnevich also conducted an indentation analysis of the court document utilizing an electrostatic detection device, and the results of that testing revealed a text with legible outlines in the paper.5 Based on this analysis, Mr. Lesnevich concluded that the indentations in the paper are “consistent with someone practicing the writing of a signature before actually simulating the signature.”6 As this evidence makes clear, this lawsuit has been tainted with corruption from the very beginning and is absolutely null and void.

In light of the results of his visual and indentation analyses, Mr. Lesnevich concluded that “all twenty (20) questioned signatures appearing on [the document filed in this Court] are free-hand simulations (drawings) modeled after genuine signatures, were not written by 20 individual writers, and are not the genuine signatures of the individuals whose names appear on the document.”7

II. ANY JUDICIAL DOCUMENT BEARING ONE OR MORE FORGED SIGNATURES IS NULL AND VOID AND LACKS ANY VALUE AND THEREFORE DOES NOT FULFILL ANY FORMAL OR SUBSTANTIVE LEGAL REQUIREMENT:

Although it should not be necessary to cite any authority to support this allegation that a false document cannot satisfy the substantive and formal requirements of a valid text submitted within a proceeding, I would like to emphasize that this argument is so elementary that it is based on the Civil Code, the Judiciary Act, the Code of Civil Procedure and the Penal Code.

First, Article 9 of the Civil Code provides that “acts prohibited by law are null and void.”8 And Article 10 provides that “[i]n no case may the judge declare valid an act that the law orders to be null.”9 These other public policy norms are designed to guarantee good faith. A document produced through an illicit act is null and cannot be the basis to establish any right or obligation, let alone facts. Also, the nullity of a fraudulent act is supported by the settled universal legal principle that “nobody can benefit from his own fraud.”

Second, an attorney’s deceptive submission of forged signatures to a judge violates the obligations of the Judiciary Act. It cannot constitute a valid procedural formality.

5 Id.

6 Id.

7 Id. at 7-8.

8 Article 9, Civil Code.

9 Article 10, Civil Code.


Article 335(9) of that Code prohibits attorneys from “[e]xercising the right of action or refutation in unfair, malicious or reckless fashion, violating the principle of good faith and honesty by means of practices such as submission of distorted evidence, use of tricks, and bad faith.”10 This is the corollary of the duty that counsel act at all times “in keeping with the principles of integrity, truthfulness, honesty and good faith.”11 To enforce these provisions, the Code mandates that judges require attorneys to conduct themselves “in an ethical manner.”12 That mandate prevents any judge from accepting any document offered by an attorney that contains forged signatures.

Third, forged signatures may not legally serve as the manifestation of the purported signatories’ consent. Article 1461 of the Civil Code provides that, “[i]n order for a person to be bound by an act or statement of intent to another person,” “[h]e must consent to the act or statement.” An omission of this legal element of the essence of the judicial mandate occurs when signatures are forged, as forged signatures are not a legal way to state a party’s consent. That is, there is no consent when someone else’s appearance is fraudulently fabricated through an act that constitutes a criminal offense, such as the falsification of a signature in a judicial document. In this case there was no intent on the part of the [signing] party, that is: there is no [party with intent]. Lack of consent may not be overlooked, as acts that constitute a criminal offense may not be ratified. Anyone who does so becomes an accomplice in the criminal offense. Absolute nullity may not be cured. Article 1698 of the Civil Code provides that this defect results in “absolute nullity.” 13 Such nullity “may and must be declared by the judge” and “may not be cured by having the parties ratify the contract.14” Thus, a document bearing forged signatures is not a valid manifestation of the intent, and even less so the intent to file a claim, is itself null, and cannot fulfill any substantive or formal legal requirement. Forging signatures in a judicial document is an illegal act that makes them non-existent because there is no consent when the falsehood is in the signatures contained in them. There is no action without consent; and when an act lacks consent, this becomes absolutely null and void, or non-existing, because the act lacks one of the essential requirements for being born into the legal life.

Fourth, the forgery of these signatures also renders these documents an absolutely nullity because it goes against Public Law, such as the Code of Civil Procedure and the Organic Code of the Judicial Power. Pursuant Article 1478 of the Civil Code, “[a]nything that violates Ecuadorian Public Law constitutes an illegal object,” and Article 1698 of the Civil Code states that “[a]bsolute nullity includes (1) nullity resulting from an illegal object.”15

10 Art. 335 No. 9 of the Judiciary Act.

11 Article 330(2) of the Judiciary Act.

12 Article 130 of the Judiciary Act.

13 Article 1498 of the Civil Code.

14 Article 1699 of the Civil Code.

15 Articles 1678 1698 of the Civil Code.


Fifth, Article 339 of the Penal Code establishes that “any other person who committed a falsification of a public document will be sentenced to a term of from six to nine years in prison…in written documents or any other judicial proceeding. The same for forged signatures.”16 Consequently, anyone who forges signatures is subject to criminal sanctions. It is obvious that a crime may not satisfy any substantive or formal legal requirement: no crime has procedural value.

My client makes informs you of this “noticia criminis” which consists in a technical report that reveals that one of the ratification documents for the complaint and appointment to joint counsel of record of Alberto Wray, presented by the plaintiffs together with the complaint, contains twenty forged signatures. The crimes shaped by the falsification of the signatures written in those two texts would be at least: (1) for the perpetrators of the falsification, the one set forth in article 339 of the Penal Code, recently cited; and (2) for those who made use of those documents with forged signatures in the proceeding without being their authors, e the one set forth in article 341 of the Penal Code,: “In the cases expressed in the previous articles, the person who had made use, fraudulently of a false document, shall be punished as if he were the author of the falsification.”

In view of the above, and in compliance with article 292 of the Penal Code, you must make known to the Office of the public Prosecutor the “information” regarding which the offenses typified in articles 339 and 341 of the Penal Code could have been committed in this proceeding.

The Civil Code, the Judiciary Act, the Code of Civil Procedure, and the Penal Code all arrive at the same conclusion: If a judicial document is filled with forged signatures, it is neither substantively nor formally valid, and it has no value or legal effect, except for the sanction deriving from committing this crime. As a material violation of civil, procedural and criminal law, forgery strips a motion or a legal document of any juridical effect.

III. EXISTENCE OF FORGED SIGNATURES IN PLAINTIFFS’ RATIFICATION OF THE COMPLAINT AND APPOINTMENT OF ALBERTO WRAY AS COLLECTIVE JOINT COUNSEL OF RECORD RENDERS THIS ENTIRE PROCEEDING NULL:

The specialist report of Mr. Lesnevich establishes that the signatures of at least twenty plaintiffs ratifying the Complaint and at the same time appointing Alberto Wray joint counsel of record are forgeries. The impropriety of submitting documents with false signatures to this Court and basing a complaint on it speaks for itself. But apart from that misconduct, the forged document has no validity, meaning that that there is no complaint and no authorization for Alberto Wray to serve as joint counsel of record.

16 Articles 339 of the Penal Code.


This document is fundamental to this proceeding and all which derives from this fraudulent act, that is, the proceeding in its entirety, also is null and void and lacking any value because a procedure that began with fraud may not and should not be deemed valid at any point. Considering the more than seven years of litigation, the forgery I am denouncing caused both to this Court and my client irremediable prejudice, and Your Honor must declare the proceeding null.

Under number 3, Article 346, Code of Civil Procedure, the “[l]egitimacy of representation” is an essential procedural formality in all judicial proceedings.17 Article 344 of the Code of Civil Procedure provides that “a proceeding shall be null and void, in whole or in part, only when any of the essential procedural formalities set forth in this code have been omitted.” 18 This requirement embodies the bedrock principle that “forms ought to be observed generally and, if not, there may arise invalidity (nullity) or damaging consequences for the perpetrator.” In general formalities must be complied with and doing so may cause its invalidity (nullity) and cause damage and prejudice…to those who infringe it.”19

The document, analyzed by the Expert Witness, is the ratification of the Complaint and the appointment of Alberto Wray as joint counsel of record of the plaintiffs in this proceeding; it is the only statement to this Court whereby Alberto Wray was authorized to file this lawsuit in the name of these twenty individuals. The Supreme Court of Justice has ruled that “[i]llegitimacy of legal capacity [is] grounds for invalidation of the proceeding”. In another case, the Supreme Court explained that [i]f a party appears in court without capacity to do so or claiming a capacity he does not have, the proceeding shall be invalid because it lacks one of the procedural assumptions of the action, since not all the conditions have been met for the judge to hear the petition formulated to file the proceeding.”20 On that basis, Article 344 of the Code of Civil Procedure expressly requires a court to declare a nullity when this procedural formality was not properly followed.

Here, the document that contains the ratification of the Complaint and the appointment of Alberto Wray as joint counsel of record contains forged signatures, and this renders the Complaint itself null and devoid of any value. The forged document not only is an integral part of the Complaint, but it also affects it and conditions it. These plaintiffs jointly filed one complaint in common cause “as members of the affected communities and guarding our rights collectively recognized.”21 Article 43 of the Code of Civil Procedure required Alberto Wray to “document his standing with legal capacity as soon as he appears in the proceeding.” As the Code of Civil Procedure points out, the

17 Article 346 (No. 3) of the Code of Civil Procedure.

18 Article 346(3) of the Code of Civil Procedure.

19 Véscovi, Enrique, “Teoría General del Proceso,” 2d ed. Editorial Temis, Bogota, 2006, p. 218.

20 Plaintiffs’ complaint filed on May 7, 2003 at 11:30 AM, shown in the file on pages 73 to 80 v (page 79).

21 VI.1 of Complaint, Record at 79.


complaint and its ratification form a unitary act that cannot be half true and half fraudulent. It is therefore impossible to accept one part of it and reject another, and the document, in this case the complaint, is either legitimate in its entirety or a forgery in its entirety. In this case the Complaint is tainted by the forgery of its ratification, and it must be considered a nullity in its entirety.

Further, neither may filing the complaint be considered valid, because it ratification required at the proper time involved the use of a falsified document, a fact that in itself also involves committing a crime.

IV. NO DOCUMENT BEARING FORGED SIGNATURES CAN BE RATIFIED BY THE SUBSEQUENT RATIFICATION OF AN ILLEGAL ACT:

These forgeries, and the resulting nullity, cannot be ratified a posteriori and remedied because there is nothing valid to be ratified. Here, there is not simply a missing formality to be corrected, but rather an affirmative false representation and a fraudulent claim. Contrary to the law, the plaintiffs’ attorneys chose to inveigle the judicial administration and chose to carry out a substantial formality and an essential element in all voluntary agreements by committing a crime, that is, forgery of signatures. An eminent treatise explains that “[i]n procedural matters, the requirement of a signature in legal documents results in those documents giving shape to inexistent procedural acts when documents not signed or signed by third parties imitating the signature of the interested party—at his request—are attached to the case file. A ratification or subsequent authentication of the interested party is not relevant.”22

An Argentinean appeal court which was presented forged signatures recently refused to allow the guilty party to cure its defect, explaining that “[t]he signature of the litigant acting on his own rights is an essential formal requirement of a judicial document. The signature must be true and written by the interested party, and such conditions for its authenticity cannot be subject to subsequent manifestations or subsequent recognition by the person who alleges having signed the document.”23 The Argentinean Court rightly held that a legal document bearing a forged signature is nonexistent and “is not a procedural irregularity that can be validated.”24 This is because “if the signatures did not actually correspond to the person appearing as a party, the act was vitiated from its very beginning and no recognition or validation can give it the quality it lacked from the beginning.”25 Recognizing that “calligraphic proof is the most suitable” evidence of whether a signature is a forgery, the court also held that “[s]uch

22 Alberto J. Bueres, Elena I. Highton. “Código Civil y normas complementarias. Análisis

doctrinario y jurisprudencial,” cited by the Tribunal of the Chamber of Appeals for Civil and Commercial Matters of Posadas, Province of Misiones, Argentina, Division II, judgment passed on Feb. 23, 2006.

23 Court: Chamber of Appeals for Civil and Commercial Matters of Posadas, Division II, 23/2/2006, Parties: Esteva v. Saltos del Moconá S.A., Published in: LLLitoral.

24 Id.

25 Judgment issued by the National Chamber of Appeals for Labor Matters – Division VII No. 21,600 of Dec. 9, 1999: Plaintiff: Martínez, Adalberto. Defendant: Caja Nacional de Ahorro y Seguro.


condition of authenticity cannot be subject to subsequent manifestations or to a subsequent recognition of the person who claims having signed the document belonging to him.”26

Spanish and Mexican courts have reached the same conclusion in similar circumstances. When a Spanish court confronted the falsified signature of a plaintiff, it concluded that “the plaintiff did not file any proceeding.” 27 The court held that this was not merely a “procedural defect” and found that “it [was] not fitting to limit the victim’s rights” by simply demanding the other party to comply with the law and ratify the action. Likewise, a Mexican court held that “[t]he fact that the claimant acknowledges that before the judge the signature appearing as his own on the document demanding guarantees cannot have the significance of vanishing the possibility of the signature being false and makes unnecessary the incident filed by the other parties during the constitutional suit. In effect, since such acknowledgement is actually nothing more than a manifestation from the same individual whose signature has been doubted, it is evident that it cannot be used as proof of its authenticity and, therefore, it is not apt to prevent its processing or otherwise that the falsehood challenge may succeed.”28

The Supreme Court of Justice of Ecuador holds the same position with respect to nullity caused by forgery of a document. In appeal number 267, published in the Official Gazette of May 28, 2007, the following appeared: “With regard to the second of the charges which led to the appealed sentence, an erroneous interpretation of the legal principles applicable to assessing evidence, and evaluation of evidence; it should be mentioned that in settlement of the object of the cassation appeal, although referring to evidence that was operative within the proceeding in the third ratio decidenci, an actual thorough examination thereof is not carried out, avoiding acknowledgment of the acts that were proven by the plaintiff, with which the falsification of the signature of the challenged document is being demonstrated, thus not complying with the prescriptions of Article 1699 (formerly 1726) of the Civil Code, which stipulates that absolute nullity may and shall be declared by the Judge even in the absence of a party’s petition to do so”.

From the moment Alberto Wray filed the Complaint, this case has been proceeding in violation of Ecuadorian law and no act of the plaintiffs can now ratify it. Your Honor, you have no choice but to declare this lawsuit totally null and void since its beginning.

PETITIONS

Based on the information present in the case file and the evidence submitted with this motion, I hereby request:

26 Judgment issued by the National Chamber of Appeals for Labor Matters – Division VII No.

21,600 of Dec. 9, 1999: Plaintiff: Martínez, Adalberto. Defendant: Caja Nacional de Ahorro y Seguro. 27 Eighth Three-Judge Court for Civil Matters of the First Circuit, Mexico D.F., proceeding

331/2008. Eduardo Manuel Reyes Henonin. Dec. 3, 2008. 28


1. That the whole process, beginning with the filing of the claim, be declared null and void because at least twenty of the signatures of the purported plaintiffs are false.

2. Additionally, and if you deem it necessary, I request that, in compliance with article 118, Code of Civil Procedure, Your Honor appoint his own technically qualified expert witness in order to have him evaluate the alleged signatures of the plaintiffs found on the documents presented to this Court, so as to determine whether they are forgeries.

3. That as a consequence of the foregoing, Alberto Wray be declared a false legal representative for the plaintiffs.

4. Additionally, pursuant to the provisions of number 10 of 129 of the Judiciary Act and Article 292 of the Penal Code I request that you, the Subrogate President, order in the resolution of nullity for the necessary antecedents to be delivered to the Office of the General prosecutor, requesting a corresponding criminal investigation to be started.

As Your Honor now knows, this is a very serious matter that once again taints the entire lawsuit with corruption by the plaintiffs. If the Judge denies or ignores my petition, this will be committing the criminal offence set out in Article 292 of the Penal Code. Furthermore, your conduct would shape the offense set forth in article 292 of the Penal code and this will constitute denial of justice and denial of the constitutional right to be heard in a fair trial.

For the petitioner, duly authorized as counsel,

Dr. Enrique Carvajal S. Attorney

Pichincha Bar Association 2055

[Rectangular filing stamp] PROVINCIAL COURT OF JUSTICE OF SUCUMBIOS OFFICE OF THE PRESIDENT - RECEIVED in Nueva Loja on December 20, 2010, at 8:50 a.m. 4 copies and 285 pages attached [signature] CLERK

forged signatures filing 12/20/10

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