Vance E. Knudson, Sui Juris Citizen of Nebraska state c/o General Delivery Hastings [zip code exempt] NEBRASKA STATE In Propria Persona All Rights Reserved without prejudice UNITED STATES DISTRICT COURT DISTRICT OF NEBRASKA UNITED STATES OF AMERICA [sic], ) Case No. 4:CV96-3275 ) Plaintiff [sic], ) NOTICE OF MOTION AND ) MOTION FOR RELIEF v. ) FROM JUDGMENT: ) VANCE E. KNUDSON [sic], ) FRCP Rule 60(b), 62(b), 38 ) Defendant [sic]. ) ________________________________) COMES NOW Vance E. Knudson, Sui Juris, Citizen of Nebraska state, expressly not a citizen of the United States ("federal citizen"), and Defendant in the above entitled matter (hereinafter "Defendant"), to move this honorable Court, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure ("FRCP"), for relief from this Court's ORDER and JUDGMENT dated April 8, 1997, and to provide Notice of same to all interested party(s). A motion under Rule 60(b) does not affect the finality of a judgment or suspend its operation, however. Defendant therefore also requests formal Notice by this Court, and by all interested party(s), of Defendant's MOTION FOR STAY OF EXECUTION AND FOR STAY OF PROCEEDINGS TO ENFORCE JUDGMENT, which is filed separately and concurrently with the instant Motion. Notice of Motion and Motion for Relief from Judgment: Page 1 of 16 According to FRCP Rule 60(b), Defendant may seek relief from a final judgment, order, or proceeding within a reasonable time, and not more than one year after the judgment, order, or proceeding was entered or taken, for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party. Defendant will also show infra that: (4) the judgment is void; and, (5) other reasons justify relief from the operation of the judgment (see Rule 60(b)(6)). This Court's ORDER and JUDGMENT, both dated April 8, 1997, (hereinafter "ORDER of April 8") both make a number of plain and prejudicial errors, which Defendant will now enumerate in the sequence of their appearance in same. The ORDER of April 8 alleges that the instant case is a civil action brought by the United States of America [sic]. The term "United States of America" is a plural, collective noun which identifies the Union of several states which are united by and under the Constitution for the United States of America. Confer at "Union" and "United States of America" in Bouvier's Law Dictionary (1856). The "United States of America" have never been granted standing as such, by Act of Congress, to bring a civil action before the United States District Court ("USDC"). Notice of Motion and Motion for Relief from Judgment: Page 2 of 16 The "United States", on the other hand, has been expressly authorized to commence a civil action, suit, or proceeding, pursuant to 28 U.S.C. 1345: United States as plaintiff. See the companion statute at 28 U.S.C. 1346: United States as defendant. Accordingly, the "United States of America" could not have brought the instant civil action, because they have no standing. For further authorities as to standing, confer in Defendant's third NOTICE AND DEMAND FOR MANDATORY JUDICIAL NOTICE filed separately and concurrently with the instant Motion. The ORDER of April 8 alleges that the Plaintiffs seek declaratory and injunctive relief pursuant to 26 U.S.C. 7401 and 7402. Title 26, U.S.C., and the Internal Revenue Code ("IRC") are not one and the same, because Title 26 as such has never been enacted into positive law. See pertinent rules for prima facie and conclusive evidence of the law, as defined in Title 1, U.S.C. Both sections 7401 and 7402 fall within IRC subtitle F, which contains all the enforcement mechanisms of the IRC. As such, said sections have never taken effect, because IRC 7851(a)(6)(A) is controlling, to wit: General rule. The provisions of subtitle F shall take effect on the day after the date of enactment of this title .... To make matters worse, IRC 7851(a)(6)(A) also falls within subtitle F, raising the specter of vagueness for exhibiting a recursive self-reference. Defendant enjoys and hereby asserts His fundamental Right to clear and unambiguous laws. See "Void for Vagueness" doctrine. In U.S. v. De Cadena, 105 F.Supp. 202, 204 (1952), the U.S. District Court listed a number of excellent authorities for the origin of this doctrine (see Lanzetta v. New Jersey, 306 U.S. 451) and for the development of the doctrine Notice of Motion and Motion for Relief from Judgment: Page 3 of 16 (see Screws v. United States, 325 U.S. 91, Williams v. United States, 341 U.S. 97, and Jordan v. De George, 341 U.S. 223): ... [A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. [Connally et al. v. General Construction Co.] [269 U.S 385, 391 (1926), emphasis added] Even if section 7401 had taken effect, by some magical or fictional presumption, it likewise controls for requiring that civil actions for the collection or recover of internal revenue taxes, or of any fine, penalty, or forfeiture, must first be authorized by the Attorney General (or his delegate) and the Secretary of the Treasury (or his delegate). This Court lacks jurisdiction over the subject matter because the record does not exhibit the authorization required by IRC 7401. There is no evidence on the record that the United States Attorney General, the Secretary of the United States Department of the Treasury, or their lawful delegates, authorized or sanctioned these proceedings. No such evidence was ever served on Defendant: Thus, where the Congress prohibits the commencement of a civil action unless certain specific acts are performed, this Court has no jurisdiction over the subject matter until the requisite conditions are met in fact and such compliance is shown by the pleadings and, where necessary, established by proof. ... [B]ut the mere allegation of facts necessary for jurisdiction without supporting proof is fatally defective. ... This Court holds that 26 U.S.C. Section 7401 requirements constitute facts essential to jurisdiction. The failure to prove jurisdictional facts when specifically denied is fatal to the maintenance of this action. [U.S.A. v. One 1972 Cadillac Coupe De Ville] [355 F.Supp. 513, 515 (1973), emphasis added] Notice of Motion and Motion for Relief from Judgment: Page 4 of 16 Likewise, even if section 7402 had taken effect, it clearly grants specific authorities to the "district courts of the United States" [sic] ("DCUS") at 7402(a), 7402(b), 7402(c), and 7402(f). This honorable USDC is only mentioned at 7402(e): (e) To quiet title. The United States district courts [sic] shall have jurisdiction of any action brought by the United States [sic] to quiet title to property if the title claimed by the United States [sic] to such property was derived from enforcement of a lien under this title. [emphasis added] IRC 7402(d) was repealed by P.L. 92-310, title II, section 230(d), June 6, 1972. The jurisdiction of federal courts is defined in the Constitution at Article III for judicial courts; in Article I for legislative courts; and in Article IV for territorial courts. Some courts created by Acts of Congress have been referred to as "Constitutional Courts," whereas others are regarded as "Legislative Tribunals." O'Donoghue v. U.S., 289 U.S. 516 (1933), 77 L.Ed 1356, 53 S.Ct. 74; Mookini v. U.S., 303 U.S. 201 at 205 (1938), 82 L.Ed 748, 58 S.Ct. 543. The USDC is a legislative, territorial tribunal. Legislative court judges do not enjoy Article III guarantees; "inherently judicial" tasks must be performed by judges deriving power under Article III. See U.S. v. Sanders, 641 F.2d 659 (1981), cert. den. 101 S.Ct. 3055, 452 U.S. 918, 69 L.Ed 422. Creation and composition of the USDC were accomplished by Acts of Congress on June 25, 1948 [62 Stat. 895], and November 13, 1963 [77 Stat. 331], currently codified at 28 U.S.C. 132; and the jurisdiction thereof is strictly limited by IRC 7402 to Notice of Motion and Motion for Relief from Judgment: Page 5 of 16 actions brought by the United States [sic] to quiet title to property if the title claim by the United States to such property was derived from enforcement of a lien under this title (i.e. Title 26, U.S.C.) Acts of Congress creating the USDC do not vest said territorial tribunals with general civil jurisdiction; these courts have only such jurisdiction as is conferred upon them by Act of Congress under the Constitution. See Hubbard v. Ammerman, 465 F.2d 1169 (5th Cir., 1972), cert. den. 93 S.Ct. 967, 410 U.S. 910, 35 L.Ed.2d 272. See IRC 7402(e) quoted supra. The USDC is not a court of general jurisdiction, and has no other power bestowed upon it, except as prescribed by Congress. See Graves v. Snead, 541 F.2d 159 (6th Cir., 1976), cert. den. 97 S.Ct. 1106, 429 U.S. 1093, 51 L.Ed.2d 539. Inclusio unius est exclusio alterius. It is apparent that the USDC for the District of Nebraska was created and established under 28 U.S.C. 132, and its jurisdiction is defined and limited by Chapter 85 of Title 28, U.S.C. The Historical and Statutory Notes under 28 U.S.C. 132 contain the following important qualification in the section entitled "Continuation of Organization of Court", to wit: Section 2(b) of Act June 25, 1948, provided in part that the provisions of this title as set out in section 1 of said Act June 25, 1948, with respect to the organization of the court, shall be construed as a continuation of existing law .... [emphasis added] The distinction between the USDC and the DCUS dates at least from American Insurance infra in 1828, and Title 28 expressly continues that law. The Act of June 25, 1948, contains the following corresponding language, to wit: Notice of Motion and Motion for Relief from Judgment: Page 6 of 16 (b) The provisions of title 28, Judiciary and Judicial Procedure, of the United States Code, set out in section 1 of this Act, with respect to the organization of each of the several courts therein provided for ... shall be construed as continuations of existing law. ... No loss of rights, interruption of jurisdiction, or prejudice to matters pending in any of such courts on the effective date of this Act shall result from its enactment. [emphasis added] Defendant submits the following construction of this provision of the Act of June 25, 1948: No loss of rights shall result from its enactment; No interruption of jurisdiction shall result from its enactment; and, No prejudice to matters pending in any of such courts on the effective date of this Act shall result from its enactment. The truth is that the United States District Court ("USDC") is designed to adjudicate matters that arise within the federal zone, and the District Court of the United States ("DCUS") is designed to adjudicate matters that arise within the state zone. See U.S. v. Lopez, 115 S.Ct. 1624 (1995), Kennedy concurring. There is a distinct and definite difference between a "United States District Court" ("USDC") and a "District Court of the United States" ("DCUS"). The words "District Court of the United States" commonly describe constitutional courts created under Article III of the Constitution, not the legislative courts which have long been the courts of the Territories. See International Longshoremen's & Warehousemen's Union v. Juneau Spruce Corp., 342 U.S. 237 at 241 (1952), 72 S.Ct. 235, 96 L.Ed. 275, 13 Alaska 536. The term "District Court of the United States" commonly describes Article III courts, or "courts of the United States", and not legislative courts of the territories. See American Notice of Motion and Motion for Relief from Judgment: Page 7 of 16 Insurance Co. v. 356 Bales of Cotton, 1 Pet. 511 (1828), 7 L.Ed 242; International Longshoremen's and Warehousemen's Union v. Wirtz, 170 F.2d 183 (9th Cir., 1948), cert. den. 336 U.S. 919, 93 L.Ed. 1082, 69 S.Ct. 641, reh. den. 336 U.S. 971, 69 S.Ct. 936. Though the judicial system set up in a territory of the United States is a part of federal jurisdiction, the phrase "court of the United States", when used in a federal statute, is generally construed as not referring to "territorial courts". See Balzac v. Porto Rico, 258 U.S. 298 at 312 (1921), 42 S.Ct. 343, 66 L.Ed. 627. In Balzac, the High Court stated: The United States District Court is not a true United States court established under Article III of the Constitution to administer the judicial power of the United States therein conveyed. It is created by virtue of the sovereign congressional faculty, granted under Article IV, Section 3, of that instrument, of making all needful rules and regulations respecting the territory belonging to the United States. The resemblance of its jurisdiction to that of true United States courts in offering an opportunity to nonresidents of resorting to a tribunal not subject to local influence, does not change its character as a mere territorial court. [emphasis added] The distinction within the dual nature of the federal court system is also noted in Title 18 U.S.C. 3241, which states that the United States District Court for the Canal Zone shall have jurisdiction "... concurrently with the district courts of the United States, of offenses against the laws of the United States committed upon the high seas." [emphasis added] This distinction is the reason why federal jurisdiction over prosecutions is more than a technical concept; it is Constitutional requirement. See U.S. v. Johnson, 337 F.2d 180, aff'd 383 U.S. 169 (1966), 86 S.Ct. 749, 15 L.Ed.2d 681, cert. den. 87 S.Ct. 44, 134, and 385 U.S. 846, 17 L.Ed.2d 77, 117. Notice of Motion and Motion for Relief from Judgment: Page 8 of 16 The distinction between "district courts of the United States" and "United States district courts" is also readily apparent in the Section of Title 18 dealing with civil remedies for activities prohibited by 18 U.S.C. 1962 (i.e. racketeering). Subsection (a) of 18 U.S.C. 1964 makes explicit reference to the Article III "district courts of the United States", as follows: (a) The district courts of the United States shall have jurisdiction to prevent and restrain violations of section 1962 of this chapter by issuing appropriate orders .... [emphasis added] Subsection (c) of 18 U.S.C. 1964 makes explicit reference to the Article IV "United States district court", as follows: (c) Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court .... [emphasis added] The language of these two subsections is almost identical in scope, with the important difference resulting from an apparent need to legislate separate and distinct court authorities for the Article III and for the Article IV forums, respectively. Inclusio unius est exclusio alterius. See also 28 U.S.C. 1441 et seq., in which Congress appears to have confused the USDC with the DCUS throughout the removal statutes codified therein. For the edification of this honorable Court, Defendant directs its attention to the essay entitled "Karma and the Federal Courts," which has been filed concurrently with the instant motion and separately in Defendant's fifth NOTICE AND DEMAND FOR MANDATORY JUDICIAL NOTICE. Notice of Motion and Motion for Relief from Judgment: Page 9 of 16 The ORDER of April 8 goes on to mention "employees of the Internal Revenue Service of the United States (hereafter IRS)" [sic]. The IRS is not a department or bureau authorized to exist within the executive branch of the United States. The IRS is an alias for Trust #62, domiciled in Puerto Rico under the Federal Alcohol Administration which was declared unconstitutional in the year 1935 by the U.S. Supreme Court. See the document entitled "BATF/IRS -- Criminal Fraud," by author William Cooper (hereinafter "The Cooper File"), filed concurrently with the instant motion and separately in Defendant's first NOTICE AND DEMAND FOR MANDATORY JUDICIAL NOTICE. As such, employees of the IRS have, at best, extremely limited authorities which do not extend into the geographic territory bounded by the state lines surrounding Nebraska state. The ORDER of April 8 makes frequent reference to "acts performed by them as part of their official IRS offices, under their authority as IRS officers, or under the direction of officers of the United States of America" [sic]. Even a cursory glance at The Cooper File belies these references; all the more so do these revelations cast the colorable claims of IRS employees into a completely different light. More to the point, Defendant has now submitted proper requests, under the Freedom of Information Act ("FOIA"), for the lawful credentials of all IRS agents who have come in contact with the instant case. Copies of said FOIA requests have been filed concurrently with the instant Motion and separately in Defendant's eleventh NOTICE AND DEMAND FOR MANDATORY JUDICIAL NOTICE. Notice of Motion and Motion for Relief from Judgment: Page 10 of 16 Defendant argues that He is entitled to a stay of execution, and a stay of further proceedings to enforce the ORDER of April 8, pending final judicial determination of the existence and validity of said credentials, by jury trial. See FRCP Rule 38. For these many reasons, the ORDER of April 8 makes a severe and prejudicial error to hold, against the evidence plainly on record, that there is no genuine issue as to any material fact in the instant case, and that the moving party was entitled to summary judgment. It is obvious to any casual reader that Defendant properly challenged the government actors in the instant case to establish and demonstrate their authority, jurisdiction, and venue. See Defendant's RESERVATION OF RIGHTS AND DISCLAIMER, in which Defendant responded to the United States Attorney's MOTION FOR SUMMARY JUDGMENT (hereinafter "Special Appearance"), to wit: ... [T]hey routinely refuse and fail to establish any authority, jurisdiction or venue for their action within the Defendants [sic] country of Nebraska. Now their [sic] seeking to involve a federal court and a judge to further extend their fraud, deception, collusion and conspiracy over the American People, and the inhabitants of the country of Nebraska in particular. [Page #3, Special Appearance] This honorable Court will please take formal judicial notice of the law at 28 U.S.C. 297, in which Congress refers to the freely associated compact states as "countries", to wit: (b) The Congress consents to the acceptance and retention by any judge so authorized of reimbursement from the countries referred to in subsection (a) .... [emphasis added] The ORDER of April 8 also makes an isolated reference to "U.S. Const. amend. XVI" [sic]. This so-called "amendment" was never lawfully ratified. See evidence documented in People v. Notice of Motion and Motion for Relief from Judgment: Page 11 of 16 Boxer, California Supreme Court case number S-030016; plaintiffs' pleadings in People v. Boxer supra are filed concurrently with the instant Motion and separately in Defendant's fourth NOTICE AND DEMAND FOR MANDATORY JUDICIAL NOTICE. The manifold implications of the failed ratification of the so-called 16th amendment are detailed in Defendant's eighth NOTICE AND DEMAND FOR MANDATORY JUDICIAL NOTICE, filed separately and concurrently with the instant Motion. Without belaboring all other plain and prejudicial errors which are evident in the ORDER of April 8, Defendant has sufficiently established that the instant case exhibits a record which now proves that: (1) this Court does not have proper jurisdiction over the subject matter; (2) Defendant is not subject to this Court's jurisdiction in personam; (3) venue is not proper; and, (4) service of the complaint was not effective, since there is no verified complaint on record. As further proof of this claim, Defendant hereby incorporates the following additional documents, as if all were set forth fully herein, which documents are filed separately in the instant case and concurrently with the instant Motion, to wit: 1. eleven (11) separate pleadings entitled NOTICE AND DEMAND FOR MANDATORY JUDICIAL NOTICE; 2. MEMORANDUM OF POINTS AND AUTHORITIES PROVING THE VOLUNTARY NATURE OF FEDERAL INCOME TAXES; and, 3. NOTICE OF MOTION AND MOTION FOR STAY OF EXECUTION AND FOR STAY OF PROCEEDINGS TO ENFORCE JUDGMENT. Notice of Motion and Motion for Relief from Judgment: Page 12 of 16 Defendant admits to having made a mistake with respect to His political status in previous pleadings. Having studied the pertinent laws and court cases, Defendant now lays claim to the status of a Citizen of Nebraska state who is not also a citizen of the United States ("federal citizen"). See Gardina v. Board of Registrars, 160 Ala. 155, 48 S. 788, 791 (1909). Defendant also alleges misrepresentation by the United States Attorneys assigned to the instant case, because they do not have any powers of attorney to represent the plaintiffs United States of America. Only the respective Attorneys General of the several states are authorized to represent the United States of America. The United States Attorneys are only authorized to represent the United States, provided that they can demonstrate the requisite credentials for said office, including but not limited to the Oath of Office and delegation of authority from the President of the United States. The federal judge currently presiding over the instant case is also paying federal income taxes upon his judicial pay, in violation of fundamental guarantee found at Article III, Section 1, and the holding of the U.S. Supreme Court in Evans v. Gore, 253 U.S. 245 (1920) (never overturned). Subsequent decisions of the high court were based on the false premises that there is only one class of citizenship (there are two classes), and that all judges are citizens (there is no such requirement). See O'Malley v. Woodrough, 307 U.S. 277 (1939); UCLA Law Review, Vol. 24, No. 2, December 1976, p. 308. Notice of Motion and Motion for Relief from Judgment: Page 13 of 16 Defendant is guaranteed an independent and unbiased judiciary, as explained in Evans supra. Federal judges who pay taxes upon their judicial compensation are subject to the undue influence of the IRS. See Lord v. Kelley, 240 F.Supp. 167, 169 (1965), which contains a written admission of undue influence. Accordingly, all premises considered, and all mistakes, newly discovered evidence, fraud, misrepresentation, and other reasons having been duly considered also, Defendant thereby shows that the judgment of this Court is void as to its MEMORANDUM AND ORDER, and its separate JUDGMENT, both dated April 8, 1997, and both should be vacated so as to relieve Defendant from the operation of said ORDER and JUDGMENT. REMEDY REQUESTED Wherefore, Defendant respectfully requests that the ORDER of April 8, 1997, be vacated, for all the reasons stated above, pending declaratory relief from a competent and qualified federal trial jury, pursuant to FRCP Rule 38, and final judicial determination of the existence and validity of requisite employee credentials and of all other authorities and prerequisites which are necessary for this Court to pronounce final judgment in the instant case. VERIFICATION I, Vance E. Knudson, Sui Juris, hereby verify, under penalty of perjury, under the laws of the United States of America, without (outside) the "United States", that the above statement of fact and law is a true and correct, to the best of My current information, knowledge, and belief, so help Me God, pursuant to 28 U.S.C. 1746(1). Notice of Motion and Motion for Relief from Judgment: Page 14 of 16 Dated: ______________________________ Respectfully submitted, /s/ Vance E. Knudson _____________________________________ Vance E. Knudson, Sui Juris Citizen of Nebraska state (expressly not a citizen of the United States) All Rights Reserved without Prejudice Notice of Motion and Motion for Relief from Judgment: Page 15 of 16 PROOF OF SERVICE I, Vance E. Knudson, 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): NOTICE OF MOTION AND MOTION FOR RELIEF FROM JUDGMENT: FRCP Rules 60(b), 62(b), 38 by placing one true and correct copy of said document(s) in first class United States Mail, with postage prepaid and properly addressed to the following: SALLY R. JOHNSON Office of U.S. Attorney 487 Federal Building 100 Centennial Mall North Lincoln [zip code exempt] NEBRASKA STATE ROBERT D. METCALFE Trial Attorney, Tax Division U.S. Department of Justice c/o POB 7238, Ben Franklin Station Washington [zip code exempt] DISTRICT OF COLUMBIA Dated: __________________________________ /s/ Vance E. Knudson __________________________________________ Vance E. Knudson, Sui Juris Citizen of Nebraska state (expressly not a citizen of the United States) All Rights Reserved without Prejudice [See USPS Publication #221 for addressing instructions.] Notice of Motion and Motion for Relief from Judgment: Page 16 of 16 # # #
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U.S.A. v. Knudson