Leo is not accusing the judge of _intentional_ fraud, but with what amounts to fraud. The judge himself acted with such “reckless disregard for the truth” that it amounted to the judge committing a fraud on his own court! The judge's reckless disregard was to characterize in a footnote testimony of a witness as having the exact opposite meaning of what the witness intended, which Leo says is clear from the record.
Before turning to our legal analysis of the elements necessary to establish fraud on the Court under FRCP Rule 60(d)(3), we should state that Movants do not allege Judge Gonzalez intentionally perpetrated a fraud on the Court. Regardless, we respectfully submit that the assertion wielded by Judge Gonzalez in Footnote 21 is fraudulent on its face and as such it exhibits a reckless disregard for the truth which is enough under controlling precedent to establish fraud on the court under Rule 60(d)(3).
"Ahem ...,. your honor may have been misled .... b-b-by this witness' incoherent remarks ... we pray the court reconsider the actual import of the witness' remarks ... in this here motion, which we in no way wish to be construed as critical of your honor's previous opinions ... coulda happened to anybody. "
Judge Gonzalez was born in Brooklyn, New York in 1947. Judge Gonzalez received an undergraduate degree in accounting from Fordham University in 1969 and a masters degree in education from Brooklyn College in 1974. He received a J.D. from Fordham University School of Law in 1982. He also received an L.L.M. in taxation from New York University School of Law in 1990. Judge Gonzalez was an attorney in the Office of Chief Counsel of the Internal Revenue Service and earned the Chief Counsel's Special Achievement Award for three consecutive years. Thereafter, he practiced with the firms of Pollner, Mezan, Stolzberg, Berger & Glass, P.C. and Gaston & Snow in New York City. Judge Gonzalez was appointed Assistant United States Trustee in the Southern District of New York in 1991. He was appointed United States Trustee for Region 2 (Second Circuit) in 1993 and served in that position until his appointment to the United States Bankruptcy Court for the Southern District of New York in 1995.
To my jaundiced old eye it appears that Gonzalez is probably not a total AAA* dummy and at least knows the ropes. However, Gonzalez is a complete government man. At least Donofrio is not attacking him publicly as a certain Russian Dentist of my acquaintance would have done by now.
A Federally Protected species: The Affirmative Action Anus.