1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

William McPike State Bar #95869 257 East Bellevue Road, # 188 Atwater, CA 95301 (559) 841-3366 Email: mcpike@netptc.com Attorney for Acacia Corporate Management, LLC Michael Scott Ioane, & Mariposa Holding Inc.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

United States, Plaintiff, v. Vincent Steven Booth, Louise Q. Booth, Michael Scott Ioane, Acacia Corporate Management, LLC. and Mariposa Holdings, Inc., Defendants. Please take notice that Defendants Michael Ioane, Mariposa Holding Inc., and Acacia Corporate Management, LLC, herein after, Defendants, by and through their Attorney of record move this court for a Protective Order before the Honorable United States Magistrate Judge Gary S. Austin in Courtroom 10 of the United States District Court for the Eastern District of California, Fresno Division, on October 12, 2012, AT 9:30 AM. Pursuant to Fed. R. Civ. P. 26 and the inherent power of the court the Defendants hereby moves this Court for the issuance of a Protective Order preventing Plaintiff United States from seeking confidential client information, information subject to illegal search and seizure, information pending before the Ninth Circuit Court of Appeals, Criminal matNotice of Motion and Motion with points and authorities for protective order Date October 12, 2012 Time: 9:30 Pm Dept: 10 Judge Gary Austin Case No. 1:09-cv-01689-AWI-GSA

Page 1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ter regarding (Michael Ioane), and attorney client information or further depositions or discovery. FACTS ( UNDISPUTED) This is an action involving a purchase of three pieces of real property purchased by Acacia Corporate Management, LLC from Bakersfield Properties and Trust Company, a California irrevocable trust, on December 5, 2005, whose beneficiaries are minor children of Dr. Vincent Steven Booth, the only relation to Bakersfield Properties and Trust Company that Dr. Vincent Steven Booth has is that his minor children are the owners/beneficiaries. In the year of 2000, Bakersfield Properties and Trust Company purchased from Alpha Omega and Aligned the three separate pieces of real estate subject of this litigation and the Booth Minor children where owners of those entities also, Dr. Vincent Booth and His Wife Louise Booth, in 1995 entered an arrangement with their then CPA James Baker and Attorney John Reedy; whereas they alienated their ownership interest in two of the subject properties 5707 Murifield Drive, Bakersfield, CA and 5717 Roundup Way, Bakersfield, CA, by transferring first one to the other all ownership interest and then transferring all rights, title and interest of the two real properties into Alpha Omega Trust, an irrevocable California trust, dated sometime in 1995, whose beneficiaries are the minor children of the booth. The property known as 1927 21st Street, Bakersfield, CA was purchased by Aligned Enterprises Trust, also an irrevocable California trust, in 1996. As of today No Guardian Ad Lituim has been appointed to represent the minor childrens interest in the subject real properties and trusts. Currently Mariposa Holding Inc.,

Page 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

and Acacia Corporate Management, LLC owes Southern Financial Trust and Bakersfield Properties a combination of approximately $900,000, because of the various purchases contract agreements, deeds of trust and promissory notes. Mariposa Holding Inc., and Acacia Corporate Management, LLC since about 2006 have been stopped from paying the $ 900,000.00 owed those entities because of the wrongfully filed Nominee Liens, Levies and because of pending litigation not excluding this case. The IRS justify their interference in the performance of the agreements/payment by claiming the transactions were fraudulent transfers intended to avoid paying an alleged IRS debt of Dr. Booth. The Government further argues Acacia Corporate Management, LLC does not own the real property, and most recently have claimed that Acacia Corporate Management, LLC is some sort of fake entity designed to hide Dr. Booth assets. These arguments are of course without foundation, preposterous and contradicted other judicial positions the government and IRS have taken, ( next, if the court allows, the government will argue that Mr. Ioane is an alien from Mars, not a human being, and has not rights on the planet earth). If the Plaintiffs would allow Mariposa Holding Inc., and Acacia Corporate Management, LLC to pay the estimated $900,000 to Southern Financial Trust and Bakersfield Properties (who are allegedly the alter egos of Dr. Booth), then the stipulated tax liability of $207,000 plus penalties and interest could be paid. [Acacia Corporate Management, LLC, Mariposa Holding Inc., and Michael Ioane prior to this litigation and prior to any of the criminal allegations; have desperately attempted to pay off the deeds of trust and promissory notes, alleged in this case to be bogus,to Bakersfield Properties and Southern Financial, but, for some reason someone at the IRS refuses to allow those payments, contin-

Page 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ues with the bizarre and unfounded allegations of conspiracy to defraud, fraudulent transfer of real property, and now that Acacia does not exist, what is next?. This non-sense has gone on now for almost 6 years. The IRS placed nominee liens and levies on Mariposa Holding Inc., and Acacia Corporate Management LLCs real property and cash making such payment impossible, just so they could prove something that did not exist. I guess this wasted time and effort does not matter, since the USA tax payer is paying the bill for this frivolous litigation, the attorneys get their federal pay check and pension while the American people stand in unemployment lines] The Plaintiffs brought this action alleging that the transaction made between Acacia Corporate Management, LLC and Bakersfield Properties and Trust Company was fraudulent. This is the major issue in this case. It is not an IRS audit or an investigation into the

affairs of Acacia Corporate Management, LLC or its business activity. Thus, the disclosure should be limited to the issue of the transaction between those two parties and should not be so broad as to bring in all of Acacia Corporate Management, LLCs clients and should not amount to an audit of Acacia Corporate Management, LLC and its clients. Defendants appeared at a deposition on August 29th and 30th, 2012 in response to a demand by plaintiffs. At the deposition plaintiff presented questions to defendants that went far beyond the real estate transaction with Dr. Vincent Steven Booth, Bakersfield Properties and Trust Company, and Acacia Corporate Management, L.LC., which is where this litigation stems. Plaintiffs presented questions relating to Acacia Corporate Management, L.LC., (Acacia) and its other business affairs involving clients and business that is not relevant nor parties to this litigation.

Page 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Further, Acacia Corporate Management, LLC clients are covered by an attorneyclient privilege, being that Attorney Steve F. Stucker a partner and member of the Acacia Corporate Management, LLC acted as the attorney for the clients. Furthermore, governments request for clients list raises serious first amendment issues, which can be fully briefed if this court feels that is necessary. Furthermore, many of the documents that were reviewed at the depositions were objected to because they are part of the illegal search litigation currently pending before the Ninth Circuit, Ioane criminal matter case number 12-10068. One of the partners in Acacia Corporate Management, LLC., ( Ioane), was subjected to an illegal search. The documents they referred to at the depositions were fruits of that illegal search. This issue is currently under appeal, therefore, this court should strike all that testimony and all those documents based on the issue of illegal search or at the very least stay any discovery related to those documents pending the outcome of the appeal. The governments attempt to have this court adjudicated the issues of the search warrant could be interpreted as interfering in the jurisdiction of the Ninth Circuit and at the very least is disrespectful to that court. Furthermore, at the depositions Plaintiffs asked questions pertaining to issues of a nature of an IRS audit, which is not what this case is about, Acacia has filed its taxes and has done so consistently every year that it has been in business. Further, Acacia Corporate Management, LLC is the party in this litigation there are several other Acacia entities that are not related to this litigation one example of which is Acacia, Inc., thus any disclosure for this litigation should only be provided by Acacia Corporate Management, LLC the party to this action.

Page 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Defendant hereby request that a Protective Order be issued limiting the Plaintiffs from conducting any further depositions and from seeking disclosure pertaining to other Acacia business and striking any testimony at the depositions related to documents obtained through the illegal search. This is not a general investigation of Acacia and its clients in general, but rather is an investigation into the real estate transactions. Defendant has no issue with submitting copies of its past tax returns, (available to it), to establish that it is a long standing business, however, Defendants are opposed to handing over a broad range of sensitive client information pertaining to clients who are not a party to this litigation being that this litigation especially since the clients are protected by the attorney-client privilege. Additionally, all tax returns would need to be delivered under a protective order of confidentiality; specifically not to be used for improper purposes, as indicated, was the intent during the depositions. ARGUMENT Under Rule 26(c)(1), any person from whom discovery is sought may move for a protective order in the court where the action is pendingor as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. On such motion, [t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including (A) forbidding the disclosure or discovery. Fed. R. Civ. P. 26(c). Under Rule 26, courts are authorized to limit discovery to that which is proper and warranted in the circumstances of the case. Katz v. Batavia Marine & Sporting Supplies, Inc., 984 F.2d 422, 424 (Fed. Cir. 1993) (citation omitted). Discovery is constrained by rel-

Page 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

evance. If information is irrelevant, mandating that discovery be taken regarding that irrelevant information is a per se abuse of discretion. Cacique, Inc. v. Robert Reiser & Co., Inc., 169 F.3d 619, 622 (9th Cir. 1999) (vacating discovery order mandating discovery of irrelevant information). See also Surfvivor Media, Inc. v. Survivor Productions, 406 F.3d 625, 635 (9th Cir. 2005) (upholding order limiting discovery based on relevance). Federal courts in this District and elsewhere have long recognized that the Federal Rules of Civil Procedure do not permit a party to utilize the discovery process to conduct a fishing expedition. See, e.g., Sathianathan v. SmithBarney, Inc., 2007 WL 2417370, at *6 (N.D. Cal. 2007) (granting protective order against document requests [that] are nothing more than a fishing expedition). This is particularly true when discovery is sought from nonparties to the litigation. It iswell established that nonparties to litigation enjoy greater protection from discovery than normal parties, and [t]he standards for nonparty discovery require a stronger showing of relevance than for simple party discovery. Laxalt v. McClatchy, 116 F.R.D. 455, 458 (D. Nev. 1986). See also Dart Industries Co. v. Westwood Chemical Co., 649 F.2d 646, 649 (9th Cir. 1980) (holding that discovery should be limited in order to protect nonparties from harassment, inconvenience, or disclosure of confidential documents) (citation omitted). Under these standards, district courts have granted, and appellate courts have affirmed, protective orders precluding depositions and limiting disclosure in a wide variety of circumstances. See, e.g., Celerity, Inc. v. Ultra Clean Holding, Inc., 2007 WL 205067, at *1 (N.D. Cal. 2007); United States v. U.S. Currency in the Amount of $228,536.00, 895 F.2d

Page 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

908, 920-21 (2d Cir. 1990); Berning v. UAW Local 2209, 2007 WL 1385367, at *3 (N.D. Ind. 2007); Sam v. Reich, 2006 WL 319259, at *7 (N.D. Ga. 2006); Brill-Edwards v. Ryder Truck Rental, Inc., 2003 WL 23511733, at *1 (D. Conn. 2003). Here the Plaintiff seeks disclosure and deposition testimony regarding non-party clients of Acacia. This disclosure would have no bearing on the case at hand. This litigation is solely pertaining to a real estate transaction with Bakersfield Properties and Trust Company, a California irrevocable trust, whose owners/beneficiaries are Dr. Booths minor children. That is the only Acacia client, assuming he ever was an Acacia Client, that disclosure should be sought and provided. Other Acacia clients who are not a party to the litigation or at issue in the litigation are not relevant to the litigation, thus a protective order should be granted preventing plaintiffs from seeking further disclosure not specifically related to the real estate transaction Bakersfield Properties, Dr. Booth, or related entities to the transaction barring disclosure with respect to other Acacia or Attorney Steven F. Stucker clients. Defendant additionally request that the court stay any further discovery and depositions until the Franchise Tax Board can properly be joined and notified in order that they may participate. Defendant further requests that the courts order include language protecting the integrity of the pending Ninth Circuit Appeal in the criminal matter related to this case and not allow any inquires that could jeopardize that Appeal or any future potential new criminal trial, Alternatively, that the court stays all discovery until the criminal matter, is finalized, as determined once already in this case and related cases by Judge Anthony Ishii.

Page 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Wherefore, Defendants respectfully requests that its Motion for Protective Order be granted in its entirety, defendants have provided separate proposed order for the court. Dated:______________________________ Date: September 7, 2012 Submitted by, /s/____________________________ William McPike, Attorney for Acacia Corporate Management, LLC, Mariposa Hold ing Inc. and Michael Ioane Certificate of Service It is hereby certified that on September 7, 2012, I electronically filed the foregoing: Protective order and proposed order, with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: G Patrick Jennings Trial Attorney Tax Division US Dept of Justice P.O. Box 683 Ben Franklin Station Washington, D.C. 20044-0683 And Randolf Krbechek, Attorney for Booths 9477 N. Fort Washington Road, Suite 104 Fresno, CA 93730 By:/s/ William McPike /s/ William McPike

Page 9