Time: Sun Mar 09 22:44:39 1997
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Date: Sun, 09 Mar 1997 22:39:12 -0800
To: (Recipient list suppressed)
From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: Notice and Demand to Dismiss IRS Conviction in USDC
This is part 1 of 2.
[This text is formatted in Courier 11, non-proportional spacing.]
Everett C. Gilbertson, Sui Juris
c/o Rural Route 1, Box 140
Battle Lake [zip code exempt]
MINNESOTA STATE
In Propria Persona
Under Protest and
by Special Visitation
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
FOURTH DIVISION
UNITED STATES OF AMERICA [sic], ) Case No. CR-4-96-65
)
Plaintiff [sic], ) NOTICE AND DEMAND TO DISMISS
) FOR LACK OF ANY CRIMINAL
v. ) JURISDICTION WHATSOEVER:
) 28 U.S.C. 1359;
EVERETT C. GILBERTSON [sic], ) FRCP Rules 9(b), 12(b)(1),
) 12(b)(2), 12(h)(3)
Defendant [sic]. )
________________________________)
COMES NOW Everett C. Gilbertson, Sui Juris, Citizen of Minnesota
state, expressly not a citizen of the United States ("federal
citizen") and Defendant in the above entitled matter (hereinafter
"Defendant"), to demand an immediate dismissal of the instant
criminal case, with prejudice, for lack of any criminal
jurisdiction to proceed in the first instance, either over the
subject matter or over the Person or property of the Defendant,
and to provide formal Notice to all interested parties of same.
Defendant hereby incorporates by reference all authorities cited
in Exhibit "A": Federal Criminal Jurisdiction, and in His
MEMORANDUM OF LAW IN SUPPORT OF CHALLENGE TO CRIMINAL
JURISDICTION OF THIS COURT [i.e. There is none.], Rules 301, 302:
Federal Rules of Evidence, as if all were set forth fully herein.
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 1 of 18
KNOW ALL BY THESE PRESENTS:
(preamble to numbered paragraphs)
I, Everett C. Gilbertson, Sui Juris, Defendant in the above
entitled matter, hereby demand that this territorial
(legislative) tribunal dismiss the instant criminal case with
prejudice because it lacks exclusive jurisdiction over the exact
geographical location where the alleged criminal activity
mentioned in the so-called indictment is alleged to have taken
place. Defendant was not arrested in any fort, magazine,
arsenal, dockyard, "needful building", or other federal enclave
within Minnesota state, nor was My Person or My private property
situated within any of the aforementioned federal areas (a/k/a
the federal zone).
A very recent U.S. Supreme Court decision, dated April 26,
1995, addressed the issue of exclusive legislative jurisdiction
of the Congress, and the powers of the federal government.
Justice Thomas, in a concurring majority opinion in U.S. v.
Lopez, 115 S.Ct. 1624 (1995), 131 L.Ed.2d 626, very clearly says:
Indeed, on this crucial point, the majority and Justice
Breyer [dissenting] agree in principle: the Federal
Government has nothing approaching a police power. Id. at
page 64.
[emphasis added
Justice Thomas went on to discuss "a regulation of police"
at page 86, wherein he stated as follows:
U.S. v. DeWitt, 76 U.S. 41, 9 Wall. 41, 19 L.Ed 593 (1870)
marked the first time the court struck down a federal law as
exceeding the power conveyed by the commerce clause. In a
2 page opinion, the court invalidated a nationwide law
prohibiting all sales of naptha, and illuminating oils. In
so doing, the court remarked that the commerce clause "has
always been understood as limited by its terms; and as a
virtual denial of any power to interfere with the internal
trade and business of the separate states." Id. at page 44.
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 2 of 18
The law in question was "plainly a regulation of police,"
which could have constitutional application only where Congress
had exclusive authority, such as the territories. Id. pp. 44-45.
Earlier in the text, Justice Thomas, Id. at page 85, said,
"Even before Gibbons, Chief Justice Marshall, writing for the
Court in Cohens v. Virginia, 19 U.S. 264, 6 Wheat 264, 5 L.Ed 257
(1821), noted that Congress had no general right to punish murder
committed within any of the states," and that Congress could not
punish felonies generally. However, Congress could enact laws
for places where it enjoyed plenary powers, for instance, over
the District of Columbia, and whatever effect ordinary murders,
robberies, or gun possession might have on interstate commerce
was irrelevant to the question of Congressional power.
The first Federal Criminal Act did not establish a
nationwide prohibition against murder and the like. See Act of
April 30, 1790, Chapter 9 [1 Stat. 112]; rather, only when
committed in United States (federal government) territories and
possessions, or on the high seas. With the single exceptions of
treason and counterfeiting, and notwithstanding any of the
effects which murder, robbery, or gun possession might have on
interstate commerce, Congress understood that it could not
establish nationwide prohibitions. Period.
Justice Thomas summed up his opinion dramatically with the
statement quoted in part herein:
If we wish to be true to a Constitution that does not cede a
police power to the Federal Government ....
(1) "All federal crimes are statutory." Doble, "Venue and
Criminal Cases in the United States District Court," Virginia Law
Review, 287, 289 (1926), quoting: " ...[O]n the other hand,
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 3 of 18
since all Federal Crimes are statutory and all criminal
prosecutions in the Federal courts are based on Acts of
Congress," Rule 26, Federal Rules of Criminal Procedure, Taking
of Testimony, Advisory Committee Notes, 1944 Adoption, paragraph
2 (emphasis added).
(2) Rule 54, Federal Rules of Criminal Procedure, paragraph
(c), Application of Terms, to wit: "Act of Congress" includes
any act of Congress locally applicable to and in force in the
District of Columbia, in Puerto Rico, in a territory or in an
insular possession. [emphasis added]
(3) There is no presumption in favor of jurisdiction, and
the basis for jurisdiction must be affirmatively shown. Hanford
v. Davis, 16 S.Ct. 1051, 163 U.S. 273, 41 L.Ed. 157 (1896).
(4) See exact wording of Article I, Section 8, Clause 17,
in the Constitution for the United States of America, which grant
of authority does not extend over every square inch of the 48
contiguous Union states or over the 50 Union states.
(5) In principle, the exclusive legislative jurisdiction of
the United States (federal government) is not addressed to
subject matter, but to specific geographical locations. See U.S.
v. Bevans, 16 U.S. (3 Wheat) 336 (1818).
(6) It is axiomatic that the prosecution must always prove
territorial jurisdiction over a crime, in order to sustain a
conviction therefor. U.S. v. Benson, 495 F.2d 475 at 481 (1974).
A jurisdictional defect can never be waived by the Defendant, nor
acquiesced by the Defendant, in the absence of a positive showing
upon the record that jurisdiction was clearly and unambiguously
established. It takes an Act of Congress!
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 4 of 18
(7) Without proof of the requisite ownership or possession
by the United States, the crime has not been made out. U.S. v.
Watson, 80 Fed. Supp. 649 (1948, E.D. Va.). Only in America can
We be forced into the status of "subjects" of a foreign
corporation, by fiat legislation and the stroke of a CEO's pen,
at the point of a gun, and thereby be immediately divested of
standing in judicio, and declared to be debtors and enemies of
our Own government. See 12 U.S.C. 95(a) and (b).
(8) In criminal prosecutions, where the United States
(federal government) is a proper moving party, it must not only
establish ownership of the property upon which the crime was
allegedly committed, but it must also produce documentation that
Minnesota state has ceded to it jurisdiction over that property.
In the case of Fort Leavenworth Railway Co. v. Iowa, 114 U.S. 525
at 531 (1885), the U.S. Supreme Court held as follows:
Where lands are acquired without such consent, the
possession of the United States, unless political
jurisdiction be ceded to them in some other way, is simply
that of an ordinary proprietor.
(9) No jurisdiction exists for the United States (federal
government) to enforce federal criminal laws, until consent to
accept jurisdiction over acquired lands has been published and
filed in behalf of the United States, as provided in 40 U.S.C.
255. The fact that a state may have authorized the United States
to exercise jurisdiction is immaterial. See Adams v. United
States, 319 U.S. 312, 63 S.Ct. 1122, 87 L.Ed. 1421 (1943).
(10) All courts of justice are duty-bound to take judicial
notice of the territorial extent of jurisdiction, although those
acts are not formally put into evidence, nor in accord with
pleadings. Jones v. U.S., 137 U.S. 202, 11 S.Ct. 80 (1890).
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 5 of 18
(11) Where a federal court is without jurisdiction over the
offense, a judgment of conviction by the court and/or by the jury
is void ab initio, on its face. Bauman v. U.S., 156 F.2d 534
(5th Cir. 1946). [emphasis added]
(12) Federal criminal jurisdiction is never presumed; it
must always be proven; and it can never be waived. See U.S. v.
Rogers, 23 Fed. 658 (USDC, W.D. Ark., 1885).
(13) The federal courts are limited both by the Constitution
and by Acts of Congress. Owen Equip. & Erection Co. v. Kroger,
98 S.Ct. 2396, 437 U.S. 365, 57 L.Ed.2d 274 (1978).
(14) 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.
(15) 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.
(16) Creation and composition of the United States District
Court ("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, previously demonstrated herein, i.e. Chapter 85 of Title
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 6 of 18
28, lists civil, admiralty, maritime, patent, bankruptcy, etc.,
and does not once list, mention, or describe any criminal
jurisdiction. It is not there, so don't bother looking for it!
(17) Acts of Congress creating the United States District
Courts ("USDC") do not vest said territorial tribunals with any
criminal jurisdiction whatsoever; 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.
(18) The United States District Court ("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.
(19) It is apparent that the United States District Court
for the Judicial District of Minnesota was created and
established under 28 U.S.C. 132, and its jurisdiction is defined
and limited by Chapter 85 of Title 28, United States Code. 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]
(20) The courts of appropriate jurisdiction for violations
of Title 18 U.S.C. are designated at Section 3231, specifically
naming them as "district courts of the United States" [sic].
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 7 of 18
(21) 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.
(22) 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
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.
(23) 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]
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 8 of 18
(24) 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]
(25) 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.
(26) The distinction between "district courts of the United
States" and "United States district courts" is 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
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 9 of 18
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.
(27) Besides the Lopez decision, at least two other courts,
i.e. United States District Courts, have come to the same or
similar conclusions. See U.S.A. v. Wilson, Stambaughr, Skott,
Ketchum, Braun, and Ballin, USDC, Wisconsin, Case Number 94-CR-
140 (March 16, 1995); and U.S. v. Kearns, USDC, Texas, Case
Number SA-95-CR-201 (October 6, 1995).
========================================================================
Paul Andrew, Mitchell, B.A., M.S. : Counselor at Law, federal witness
email: [address in tool bar] : Eudora Pro 3.0.1 on Intel 586 CPU
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ship to: c/o 2509 N. Campbell, #1776 : this is free speech, at its best
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