Charles R. Pixley, Sui Juris
Citizen of New York state
c/o general delivery
Rochester [zip code exempt]
NEW YORK STATE

In Propria Persona

Under Protest and Without Prejudice
By Special Visitation Only





                 UNITED STATES COURT OF APPEALS

                         SECOND CIRCUIT


UNITED STATES OF AMERICA [sic], ) Case Number 96-1476
                                )
          Plaintiffs/Appellees, ) MOTION FOR STAY PENDING REVIEW
                                ) AND REQUEST FOR LEAVE TO FILE
     v.                         ) ENLARGED BRIEF:
                                )
CHARLES R. PIXLEY [sic],        ) Rule 18, Federal Rules
                                ) of Appellate Procedure
          Defendant/Appellant.  )
                                )
                                )
________________________________)


COMES NOW  Charles R.  Pixley, Sui  Juris, Citizen  of  New  York

state, expressly  not a  citizen of  the United  States ("federal

citizen"), federal  witness, and  Defendant in the above entitled

case (hereinafter  "Appellant"), to  move this  honorable  Court,

pursuant to  Rule 18  of the Federal Rules of Appellate Procedure

("FRAP"), for immediate review of this Court's failure to rule on

Appellant's  previously   filed  MOTION   TO  STAY   MANDATE  AND

PROCEEDINGS, PENDING  DISCOVERY OF  DOCUMENTS REQUESTED UNDER THE

FOIA, AND  FINAL RESOLUTION  OF CHALLENGE TO CONSTITUTIONALITY OF

THE JURY  SELECTION AND SERVICE ACT.  Appellant also respectfully

requests that  this honorable  Court vacate  the  ORDER  by  Hon.

Michael A.  Telesca, dated and filed on August 11, 1997, entering

judgment in the United States District Court against Appellant.


     Motions for Stay Pending Review and for Enlarged Brief:
                          Page 1 of 11


                   THIS COURT IS OUT OF ORDER

     For procedural  reasons which  Appellant argues are obvious,

this honorable  Court appears  to have made a reversible error by

failing to  rule on  Appellant's recently  filed MOTION  TO  STAY

MANDATE AND  PROCEEDINGS ("STAY MOTION").  Instead of hearing and

ruling upon  said STAY  MOTION, this  Court proceeded  to issue a

MANDATE that  the judgment  of the  United States  District Court

("USDC") for  the Western  District of  New York,  be affirmed in

accordance with the opinion of this Court.

     This Court's  MANDATE also  appears to have been issued on a

false premise  -- that  the cause  was "argued  by counsel" [sic]

-- in  view of  the fact  that Appellant  is  now  proceeding  In

Propria Persona  and did file Appellant's previous STAY MOTION in

that mode.  Appellant is decidedly not proceeding Pro Se [sic].

     Appellant submits  that  the  appropriate  remedy  for  this

obvious procedural  error is  to vacate  this Court's MANDATE and

the district  court's entry  of judgment, pending final review of

the substantial  issues of  law and  fact that  have arisen  as a

consequence of  Appellant's proper  and timely STAY MOTION, which

is now before this Court, and which warrants a ruling by same.


                INCORPORATION OF RECENT PLEADINGS

     Appellant also wishes to draw the specific attention of this

honorable Court  to Appellant's  NOTICE AND  DEMAND FOR MANDATORY

JUDICIAL NOTICE,  and to  Appellant's AFFIDAVIT  OF DEFAULT IN RE

DOCUMENTS  REQUESTED   UNDER  THE   FREEDOM  OF  INFORMATION  ACT

("FOIA"), both  filed and  served concurrently  with the  instant

MOTION.   Appellant hereby  incorporates the  latter pleadings by

reference, as if both were set forth fully herein.


     Motions for Stay Pending Review and for Enlarged Brief:
                          Page 2 of 11


     Appellant's NOTICE  AND DEMAND FOR MANDATORY JUDICIAL NOTICE

invokes Rule 201(d), Federal Rules of Evidence ("FREv"), to bring

to the  fore Appellant's  Petition  for  the  Issuance  of  Rules

promulgating the  federal statutes at 18 U.S.C. 371, 3231, and 28

U.S.C. 1861  et seq.  With all due respect, Appellant argues that

this Court  is mandated, under the imperative meaning of language

used in  FREv Rule  201(d), to  take formal  judicial  Notice  of

Appellant's Petition  for the Issuance of Rules, submitted to the

U.S. Department  of Justice ("DOJ") on Saturday, August 23, 1997,

via certified U.S. Mail, return receipt requested.

     Appellant's AFFIDAVIT  OF DEFAULT  IN RE DOCUMENTS REQUESTED

UNDER THE  FREEDOM OF  INFORMATION ACT  ("FOIA") commemorates and

testifies to  the failure by DOJ to issue regulations pursuant to

the administrative  procedures for  same which are enacted in the

Administrative Procedures  Act ("APA").   This  Court is bound to

take formal  judicial Notice  of  Appellant's  AFFIDAVIT  in  the

matter of  these controlling  regulations.  Title 5 of the United

States Code ("U.S.C.") has been enacted into positive law.

     Appellant has  made a  diligent and  good  faith  effort  to

locate  said   regulations  in  the  nearest  federal  depository

library, and was unable to locate any published references to the

regulations  in   question.    Appellant  then  submitted  proper

requests under the FOIA for certified copies of said regulations.

The agencies  failed to produce certified copies of the requested

regulations, on or before the statutory deadlines established for

producing  documents   properly   requested   under   the   FOIA.

Therefore, Appellant's administrative remedies under the FOIA are

now exhausted.  See 5 U.S.C. 552(a)(4)(B) in chief.


     Motions for Stay Pending Review and for Enlarged Brief:
                          Page 3 of 11


     It may appear that Appellant is now required to petition the

District Court  of the United States ("DCUS") for declaratory and

injunctive relief  in the  matter of  these FOIA  requests, which

have, to date, failed to yield the documents requested.  However,

Appellant's Petition  for the  Issuance  of  Rules  supra  should

demonstrate to  this honorable  Court  that  all  of  Appellant's

administrative remedies  have still  not been  exhausted.  Hence,

Appellant respectfully  argues that  this Court  is, once  again,

proceeding out of order, also for these reasons.

     Specifically, the two Public protection clauses found in the

Administrative Procedures  Act ("APA")  and Federal  Register Act

("FRA"), respectively,  provide ample  grounds for this honorable

Court to  conclude that  the issuance  of a  formal MANDATE,  and

entry of  judgment in  the USDC, constitute the end of a judicial

process which  should never  have started  in  the  first  place,

without first completing essential administrative processes which

are  imposed   upon  the  Executive  Branch  by  very  clear  and

undisputed provisions of the APA and FRA.  Appellant directs this

Court specifically to the statutes at 5 U.S.C. 552(a)(1), 553(e),

and 44  U.S.C. 1507,  all of  which are Acts of Congress rendered

supreme Law, pursuant to the Supremacy Clause in the Constitution

for  the   United  States   of  America,   as  lawfully   amended

(hereinafter "U.S. Constitution").  See Article VI, Clause 2.


     Motions for Stay Pending Review and for Enlarged Brief:
                          Page 4 of 11


      CHALLENGE TO JURY SELECTION AND SERVICE ACT ("JSSA")

     Appellant's  previously  filed  STAY  MOTION  has  raised  a

fundamental constitutional  challenge which  is,  by  definition,

non-trivial and  non-frivolous, notwithstanding  any arguments to

the contrary  which have been made, or will be made, by Appellees

or by  attorneys for  the United States.  Appellant has requested

this  honorable   Court  first  to  rule  on  Appellant's  formal

challenge to  the  obvious  and  prohibited  discrimination,  now

evident in  the JSSA,  against Citizens of the several states who

are not also federal citizens, by Right of Election.

     The existence  of the  "Right of Election" [sic] in American

Law never repealed, is a matter which this honorable Court should

deliberate, and  adjudicate, with  a complete  set  of  pertinent

historical details  and related  case holdings.    To  this  end,

Appellant is honored to bring to this esteemed panel's attention,

the rather  substantial body  of fact  and  law  which  has  been

assembled in the attached documentation.  See Exhibits "A" & "B".

     In  support  of  this  proposition,  Appellant  respectfully

requests leave  of this  Court to  file an  enlarged brief  which

incorporates into  the instant  MOTION the two (2) Exhibits which

are attached hereto.  Exhibit "A" is the MOTION FOR DISCRETIONARY

JUDICIAL NOTICE,  AND APPLICATION  FOR  LEAVE  TO  FILE  ENLARGED

BRIEF,  and  Exhibit  "B"  is  APPELLANT'S  FIRST  SUPPLEMENT  TO

APPLICATION FOR  LEAVE TO  FILE ENLARGED BRIEF, both submitted in

draft form  to the  defendant in the case of U.S.A. v. Gilbertson

and in Gilbertson v. U.S. et al., and both of which cases are now

before the  United States  Court of Appeals for the Eight Circuit

("8th Circuit"), in St. Louis, Missouri state.

     Appellant argues  that  the  proposed  construction  of  the

Qualifications Clauses  in the  U.S. Constitution,  as  developed

carefully and  methodologically in  said pleadings, is indeed the

correct one,  from which this Court should embark as a preferred,

if not necessary, point of analytical departure.


     Motions for Stay Pending Review and for Enlarged Brief:
                          Page 5 of 11


     Therefore, Appellant  now submits  said construction to this

Court, in support of Appellant's request, made hereby, for proper

judicial review of Appellant's challenge to the constitutionality

of the Jury Selection and Service Act ("JSSA").  Appellant argues

that the instant proceedings should be stayed indefinitely, until

the substantial  issues of law and fact which are raised in these

pleadings can be finally settled, either by this Court, or by the

Supreme Court  of the  United States on Applications for Writs of

Habeas Corpus or Certiorari.


                  90-DAY EXTENSION IS IN EFFECT

     Appellant submits  that yet another reason exists to support

the conclusion  that this  Court is  presently proceeding  out of

order.   Appellant respectfully  directs the  attention  of  this

Court to  its ORDER dated July 25, 1997, specifically granting to

Appellant leave  to proceed In Propria Persona.  In so doing, the

Hon. Fred  A. Parker  also granted  an extension  of ninety  (90)

days, for the purpose of allowing Appellant's new Counsel to come

up to speed with the complexities of the instant case.  See lines

15 thru 18 on page 2 of 3 in Appellant's MOTION for same.


     Motions for Stay Pending Review and for Enlarged Brief:
                          Page 6 of 11


         SEPARATE STAY/DISMISSAL MOTION IS STILL PENDING,
              TO RESOLVE A JURISDICTIONAL CHALLENGE

     And further,  Appellant respectfully  moved  this  honorable

Court for  a separate MOTION TO STAY PROCEEDINGS, OR DISMISS WITH

PREJUDICE,  pending   final  resolution   of  Appellant's  proper

challenge to the jurisdiction of the United States District Court

("USDC").   Said USDC  tried the  instant case on indictment by a

federal grand jury convened pursuant to an unconstitutional JSSA,

and without  any Acts  of Congress granting criminal jurisdiction

to that USDC in the first instance.

     Appellant argues  that said separate MOTION is still pending

before this  Court, and  deserves a  timely and  orderly  ruling,

regardless of whether this Court decides to rule upon Appellant's

JSSA challenge.   A  dismissal with  prejudice by  this honorable

Court would  render as  moot both  Appellant's challenge  to  the

constitutionality of  the JSSA,  and Appellant's  MOTION TO  STAY

further proceedings pending final review of the JSSA challenge.

     Irrespective of Appellant's challenge to the JSSA, Appellant

argues that  this honorable  Court can,  and should, dismiss with

prejudice, for  lack of  original jurisdiction  over the  subject

matter by the USDC, in the first instance.


             ADMINISTRATIVE DUE PROCESS HAS NOT RUN

     And further, pursuant to the Fifth Amendment and to 5 U.S.C.

552(a)(1), which  states in  pertinent part that a Person may not

in any  manner be required to resort to, or be adversely affected

by, a matter required to be published in the Federal Register and

not so  published, the  absence of duly published regulations for

18 U.S.C.  371, 3231, and the JSSA are more than adequate grounds

for this  honorable Court to hold that Appellant has been falsely

charged, and  that all  proceedings against  Appellant have  been

ultra vires (null and void) ab initio (from the beginning).


     Motions for Stay Pending Review and for Enlarged Brief:
                          Page 7 of 11


                       REMEDIES REQUESTED

     Wherefore, Appellant  respectfully requests indefinite stays

of final  mandate and  of the instant proceedings, pending formal

discovery of  documents  requested  under  the  FOIA,  and  final

resolution of  the constitutionality  of the  JSSA,  as  recently

challenged before  the 8th  Circuit,  which  challenge  Appellant

likewise brings now before this honorable Court.

     In support  of the  above requested remedies, Appellant also

requests that  this honorable  Court vacate  the interim  MANDATE

previously issued  by this  Court, and the corresponding entry of

judgment by  the USDC below, and also grant to Appellant leave to

file enlarged  briefs which  are necessary  to deliberate, and to

adjudicate properly, Appellant's instant challenge to the JSSA.


     In  the  alternative,  Appellant  respectfully  requests  an

immediate dismissal  with  prejudice,  because  the  trial  court

lacked all  original jurisdiction  over the subject matter of the

instant case, from the outset, quite apart from the JSSA defect.


     Thank you very much for your consideration.


                          VERIFICATION

     I, Charles  R. Pixley, Sui Juris, Citizen of New York state,

federal witness,  and expressly  not a  federal  citizen,  hereby

verify, under  penalty of  perjury, under  the laws of the United

States  of   America,  without   the   United   States   (federal

government), that  the above  statement of laws and facts is true

and correct,  according to  the best  of My  current information,

knowledge, and belief, so help Me God, per 28 U.S.C. 1746(1).


Executed on __________________________________


Respectfully submitted,

/s/ Charles R. Pixley
______________________________________________
Charles R. Pixley, Sui Juris
Citizen of New York state, federal witness
(expressly not a citizen of the United States)

All Rights Reserved without Prejudice


     Motions for Stay Pending Review and for Enlarged Brief:
                          Page 8 of 11


                        PROOF OF SERVICE

I, Charles R. Pixley, Sui Juris, hereby certify, under penalty of

perjury, under  the laws of the United States of America, without

the "United  States," that  I am  at least  18 years  of  age,  a

Citizen of  one of  the United  States of  America,  and  that  I

personally served the following document(s):

                    MOTION FOR STAY PENDING REVIEW
            AND REQUEST FOR LEAVE TO FILE ENLARGED BRIEF:
            Rule 18, Federal Rules of Appellate Procedure

by placing one true and correct copy of said document(s) in first

class U.S. Mail, with postage prepaid and properly addressed to:


Attorney General              Michael A. Telesca
Department of Justice         United States District Court
10th & Constitution, N.W.     100 States Street
Washington [zip code exempt]  Rochester [zip code exempt]
DISTRICT OF COLUMBIA          NEW YORK STATE

Solicitor General             Christopher Taffe
Department of Justice         United States Attorneys
10th & Constitution, N.W.     620 Federal Building
Washington [zip code exempt]  Rochester [zip code exempt]
DISTRICT OF COLUMBIA          NEW YORK STATE


Courtesy copies to:

William H. Rehnquist, C.J.    Judge Alex Kozinski (supervising)
Supreme Court of the U.S.     Ninth Circuit Court of Appeals
One First Street, N.E.        c/o P.O. Box 193939
Washington [zip code exempt]  San Francisco [zip code exempt]
DISTRICT OF COLUMBIA          CALIFORNIA STATE


[See USPS Publication #221 for addressing instructions.]


Dated:  ______________________________________


/s/ Charles R. Pixley
______________________________________________
Charles R. Pixley, Sui Juris
Citizen of New York state, federal witness
(expressly not a citizen of the United States)

All Rights Reserved without Prejudice


     Motions for Stay Pending Review and for Enlarged Brief:
                          Page 9 of 11


                          Exhibit "A":

                        NOTICE OF MOTION,
          MOTION FOR DISCRETIONARY JUDICIAL NOTICE, AND
          APPLICATION FOR LEAVE TO FILE ENLARGED BRIEF

                               in

                    U.S.A. v. Gilbertson and
                    Gilbertson v. U.S. et al.

                 Eight Circuit Court of Appeals
                    case number #97-2099-MNST

                           [D R A F T]


     Motions for Stay Pending Review and for Enlarged Brief:
                          Page 10 of 11


                          Exhibit "B":

                 APPELLANT'S FIRST SUPPLEMENT TO
                      APPLICATION FOR LEAVE
                     TO FILE ENLARGED BRIEF

                               in

                    U.S.A. v. Gilbertson and
                    Gilbertson v. U.S. et al.

                 Eight Circuit Court of Appeals
                    case number #97-2099-MNST

                           [D R A F T]


     Motions for Stay Pending Review and for Enlarged Brief:
                          Page 11 of 11


                             #  #  #
      


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U.S.A. v. Pixley