Time: Wed Mar 19 08:24:03 1997
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Delivered-To: liberty-and-justice-outgoing@majordomo.pobox.com
Date: Wed, 19 Mar 1997 08:09:47 -0800
To: am-her@juno.com (Rusty Lee)
From: Paul Andrew Mitchell [address in tool bar]
Subject: L&J: USDC v. DCUS (2 of 2)



documentation showing  concurrent jurisdiction with Arizona state

over the geographical location as stated in (a) above;

     (d)   Alternatively,  absent  the  requisite  documentation,

Defendant hereby  demands that  this United States District Court

vacate the  jury's guilty  verdict and  dismiss the  instant case

with prejudice and in the interests of justice.


Executed on August 13, 1996




Sheila Terese, Wallen, Sui Juris
Citizen of Arizona state




Paul Andrew, Mitchell, B.A., M.S.
Counselor at Law, federal witness,
and Citizen of Arizona state


 Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
                          Page 11 of 17

             Exhibit "A":  Federal Criminal Jurisdiction

     It is  a well established principle of law that "all federal
legislation applies  only within  the territorial jurisdiction of
the United States unless a contrary intent appears";  see Caha v.
United States,  152 U.S. 211, 215, 14 S.Ct. 513 (1894);  American
Banana Company  v. United  Fruit Company,  213 U.S.  347, 357, 29
S.Ct. 511  (1909);  United States v. Bowman, 260 U.S. 94, 97, 98,
43 S.Ct.  39 (1922);   Blackmer  v. United  States, 284 U.S. 421,
437, 52  S.Ct. 252 (1932);  Foley Bros. v. Filardo, 336 U.S. 281,
285, 69 S.Ct. 575 (1949);  United States v. Spelar, 338 U.S. 217,
222, 70  S.Ct. 10  (1949);   and United  States v. First National
City Bank,  321 F.2d 14, 23 (2nd Cir., 1963).  And this principle
of law  is expressed  in a  number  of  cases  from  the  federal
appellate courts;   see  McKeel v.  Islamic Republic of Iran, 722
F.2d 582,  589 (9th  Cir., 1983)  (holding the  Foreign Sovereign
Immunities Act  as territorial);   Meredith v. United States, 330
F.2d 9, 11 (9th Cir., 1964) (holding the Federal Torts Claims Act
as territorial);   United  States v.  Cotroni, 527  F.2d 708, 711
(2nd Cir.,  1975) (holding  federal wiretap laws as territorial);
Stowe v.  Devoy, 588  F.2d 336,  341 (2nd Cir., 1978);  Cleary v.
United States  Lines, Inc.,  728 F.2d  607, 609  (3rd Cir., 1984)
(holding federal age discrimination laws as territorial);  Thomas
v. Brown  & Root,  Inc., 745  F.2d  279,  281  (4th  Cir.,  1984)
(holding same  as Cleary, supra);  United States v. Mitchell, 553
F.2d  996,  1002  (5th  Cir.,    1977)  (holding  marine  mammals
protection act  as territorial);   Pfeiffer  v. William  Wrigley,
Jr., Co.,  755 F.2d  554,  557  (7th  Cir.,  1985)  (holding  age
discrimination  laws   as  territorial);     Airline  Stewards  &
Stewardesses Assn. v. Northwest Airlines, Inc., 267 F.2d 170, 175
(8th Cir.,  1959) (holding  Railway Labor  Act  as  territorial);
Zahourek v.  Arthur Young  and Co., 750 F.2d 827, 829 (10th Cir.,
1984)  (holding   age  discrimination   laws   as   territorial);
Commodities Futures  Trading Comm.  v. Nahas,  738 F.2d  487, 493
(D.C.Cir.,  1984)  (holding  commission's  subpoena  power  under
federal law  as territorial);   Reyes v. Secretary of H.E.W., 476
F.2d 910,  915 (D.C.Cir., 1973) (holding administration of Social
Security Act  as territorial);  and Schoenbaum v. Firstbrook, 268
F.Supp. 385,  392 (S.D.N.Y.,  1967) (holding  securities  act  as
territorial).    But,  because  of  statutory  language,  certain
federal drug laws operate extra-territorially;  see United States
v. King,  552 F.2d  833, 851 (9th Cir., 1976).  The United States
has  territorial  jurisdiction  only  in  Washington,  D.C.,  the
federal enclaves  within the  States, and  in the territories and
insular possessions  of the  "United States".  However, it has no
territorial jurisdiction  over non-federally  owned areas  inside
the territorial  jurisdiction of  the States  within the American
Union.   And this  proposition of  law is  supported by literally
hundreds of cases.

     As a general rule, the power of the United States criminally
to  prosecute  is,  for  the  most  part,  confined  to  offenses
committed within  "its jurisdiction".  This is born out simply by
examination of Title 18, U.S.C.  Section 5 which defines the term
"United  States"  in  clear  jurisdictional  terms.    Section  7
contains the fullest statutory definition of the "jurisdiction of


 Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
                          Page 12 of 17

the United States" [sic].  The United States District Courts have 
jurisdiction of  offenses occurring  within the  "United States", 
pursuant to Title 18, U.S.C., section 3231.

     Examples of  this proposition  are numerous.   In Pothier v.
Rodman, 291  F. 311  (1st  Cir.,  1923),  the  question  involved
whether a  murder committed at Camp Lewis Military Reservation in
the State  of Washington  was a  federal crime.  Here, the murder
was committed  more than  a year  before the U.S. acquired a deed
for  the   property  in  question.    Pothier  was  arrested  and
incarcerated in  Rhode Island  and filed a Habeas Corpus petition
seeking his release on the grounds that the federal courts had no
jurisdiction over  an offense not committed in U.S. jurisdiction.
The First  Circuit agreed  that there was no federal jurisdiction
and ordered  his release.   But,  on appeal  to the  U.S. Supreme
Court, in  Rodman v.  Pothier, 264 U.S. 399, 44 S.Ct. 360 (1924),
that Court  reversed;   although agreeing with the jurisdictional
principles enunciated by the First Circuit, it held that only the
federal court  in Washington  State could  hear that  issue.   In
United States  v. Unzeuta,  35 F.2d  750 (8th  Cir.,  1929),  the
Eighth Circuit  held that  the U.S.  had no  jurisdiction over  a
murder committed  in a  railroad car  at Fort Robinson, the state
cession statute being construed as not including railroad rights-
of-way.   This decision was reversed in United States v. Unzeuta,
281 U.S.  138, 50  S.Ct. 284  (1930), the  court holding that the
U.S. did  have jurisdiction  over the  railroad rights-of-way  in
Fort Robinson.   In  Bowen v.  Johnson, 97  F.2d 860  (9th  Cir.,
1938), the  question presented  was whether  jurisdiction over an
offense prosecuted in federal court could be raised in a petition
for Habeas  Corpus.   The denial of Bowen's petition was reversed
in Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442 (1939), the Court
concluding that  such a  jurisdictional challenge could be raised
in a  Habeas Corpus  petition.  But, the Court then addressed the
issue, and  found that  the  U.S.  both  owned  the  property  in
question and had a state legislative grant ceding jurisdiction to
the United  States, thus  there was  jurisdiction in  the  United
States to prosecute Bowen.  But, if jurisdiction is not vested in
the United  States pursuant to statute, there is no jurisdiction;
see Adams v. United States, 319 U.S. 312, 63 S.Ct. 1122 (1943).

     And the  lower federal  courts also  require the presence of
federal jurisdiction  in criminal  prosecutions.    In  Kelly  v.
United States, 27 F. 616 (D.Me., 1885), federal jurisdiction of a
manslaughter committed  at Fort  Popham was  upheld when  it  was
shown that the U.S. owned the property where the offense occurred
and the state had ceded jurisdiction.  In United States v. Andem,
158 F.  996 (D.N.J.,  1908), federal  jurisdiction for  a forgery
offense was  upheld on a showing that the United States owned the
property where  the offense was committed and the state had ceded
jurisdiction of  the property  to the  U.S.   In United States v.
Penn, 48  F. 669  (E.D.Va., 1880),  since the  U.S. did  not have
jurisdiction over  Arlington National Cemetery, a federal larceny
prosecution was  dismissed.  In United States v. Lovely, 319 F.2d
673 (4th  Cir., 1963), federal jurisdiction was found to exist by
U.S.  ownership   of  the   property  and   a  state  cession  of
jurisdiction.   In  United  States  v.  Watson,  80  F.Supp.  649


 Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
                          Page 13 of 17

(E.D.Va., 1948),  federal criminal  charges were  dismissed,  the
court stating as follows:

     Without proof  of the  requisite ownership  or possession of
     the United  States, the  crime has  not been  made out.   80
     F.Supp., at 651.

     In Brown  v. United  States, 257  F. 46  (5th  Cir.,  1919),
federal jurisdiction  was upheld on the basis that the U.S. owned
the post  office site  where a murder was committed and the state
had ceded  jurisdiction;   see also England v. United States, 174
F.2d 466  (5th Cir., 1949);  Krull v. United States, 240 F.2d 122
(5th Cir.,  1957);   Hudspeth v. United States, 223 F.2d 848 (5th
Cir., 1955);   and  Gainey v.  United States,  324 F.2d  731 (5th
Cir., 1963).   In  United States  v. Townsend,  474 F.2d 209 (5th
Cir., 1973),  a conviction  for  receiving  stolen  property  was
reversed when  the court  reviewed the  record and  learned  that
there was  absolutely no  evidence disclosing  that the defendant
had committed  this offense within the jurisdiction of the United
States.   And in United States v. Benson, 495 F.2d 475 (5th Cir.,
1974), in finding federal jurisdiction for a robbery committed at
Fort Rucker, the court stated:

     It is  axiomatic that  the  prosecution  must  always  prove
     territorial jurisdiction  over a crime in order to sustain a
     conviction therefor.  495 F.2d, at 481.

     In two  Sixth Circuit cases, United States v. Tucker, 122 F.
518 (W.D.Ky.,  1903), a  case involving an assault committed at a
federal dam, and United States v. Blunt, 558 F.2d 1245 (6th Cir.,
1977), a case involving an assault within a federal penitentiary,
jurisdiction was  sustained by  finding that  the U.S.  owned the
property  in   question  and   the  state   involved  had   ceded
jurisdiction.   In In  re Kelly,  71 F.  545 (E.D.Wis.,  1895), a
federal assault charge was dismissed when the court held that the
state cession  statute in  question was  not adequate  to  convey
jurisdiction of  the property  in question  to the United States.
In United  States v.  Johnson, 426  F.2d 1112 (7th Cir., 1970), a
case  involving   a   federal   burglary   prosecution,   federal
jurisdiction was sustained upon the showing of U.S. ownership and
cession.   And cases  from the Eighth and Tenth Circuits likewise
require the same elements to be shown to demonstrate the presence
of federal jurisdiction;  see United States v. Heard, 270 F.Supp.
198 (W.D.Mo.,  1967);   United States  v. Redstone,  488 F.2d 300
(8th Cir.,  1973);   United States  v. Goings,  504 F.2d 809 (8th
Cir., 1974)  (demonstrating loss  of  jurisdiction);    Hayes  v.
United States,  367 F.2d 216 (10th Cir., 1966);  United States v.
Carter, 430  F.2d 1278 (10th Cir., 1970);  Hall v. United States,
404 F.2d  1367 (10th  Cir., 1969);  and United States v. Cassidy,
571 F.2d 534 (10th Cir., 1978).

     Of  all  the  circuits,  the  Ninth  Circuit  has  addressed
jurisdictional issues  more than  any of  the rest.    In  United
States v.  Bateman, 34  F. 86 (N.D.Cal., 1888), it was determined
that the United States did not have jurisdiction to prosecute for
a murder  committed at  the Presidio because California had never
ceded jurisdiction;   see also United States v. Tully, 140 F. 899


 Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
                          Page 14 of 17

(D.Mon., 1905).  But later, California ceded jurisdiction for the
Presidio to  the United  States, and it was held in United States
v. Watkins,  22 F.2d  437 (N.D.Cal., 1927), that this enabled the
U.S. to maintain a murder prosecution;  see also United States v.
Holt, 168  F. 141 (W.D. Wash., 1909), United States v. Lewis, 253
F. 469  (S.D.Cal, 1918), and United States v. Wurtzbarger, 276 F.
753 (D.Or.,  1921).   Because the  U.S. owned,  and had  a  state
cession of  jurisdiction for,  Fort Douglas  in Utah, it was held
that the  U.S. had  jurisdiction for a rape prosecution in Rogers
v. Squier,  157 F.2d  948 (9th  Cir.,  1946).    But,  without  a
cession, the U.S. has no jurisdiction;  see Arizona v. Manypenny,
445 F.Supp. 1123 (D.Ariz., 1977).

     The above  cases from  the U.S.  Supreme Court  and  federal
appellate  courts   set  forth   the  rule   that   in   criminal
prosecutions, the  government, as  the party seeking to establish
the existence  of federal jurisdiction, must prove U.S. ownership
of the  property in question and a state cession of jurisdiction.
This same rule manifests itself in state cases.  State courts are
courts  of   general  jurisdiction   and  in   a  state  criminal
prosecution, the  state must  only prove  that  the  offense  was
committed within  the state and a county thereof.  If a defendant
contends that  only the  federal government has jurisdiction over
the offense,  he, as  proponent  for  the  existence  of  federal
jurisdiction, must  likewise prove U.S. ownership of the property
where the crime was committed and state cession of jurisdiction.

     Examples of  the operation  of this  principle are numerous.
In Arizona,  the State has jurisdiction over federal lands in the
public domain,  the state  not having  ceded jurisdiction of that
property to  the U.S.;   see  State v.  Dykes, 114 Ariz. 592, 562
P.2d 1090  (1977).   In California,  if it  is not  proved  by  a
defendant in  a  state  prosecution  that  the  state  has  ceded
jurisdiction, it  is presumed  the state  does have  jurisdiction
over a  criminal offense;   see  People v.  Brown, 69 Cal. App.2d
602, 159  P.2d 686  (1945).  If the cession exists, the state has
no jurisdiction;   see  People v. Mouse, 203 Cal. 782, 265 P. 944
(1928).   In Montana, the state has jurisdiction over property if
it is  not proved there is a state cession of jurisdiction to the
U.S.;   see State  ex rel Parker v. District Court, 147 Mon. 151,
410 P.2d  459 (1966);   the  existence  of  a  state  cession  of
jurisdiction to  the U.S.  ousts the  state of jurisdiction;  see
State v. Tully, 31 Mont. 365, 78 P. 760 (1904).  The same applies
in Nevada;  see State v. Mack, 23 Nev. 359, 47 P. 763 (1897), and
Pendleton v.  State, 734  P.2d 693  (Nev., 1987);   it applies in
Oregon (see State v. Chin Ping, 91 Or. 593, 176 P. 188 (1918) and
State v.  Aguilar, 85  Or.App. 410, 736 P.2d 620 (1987));  and in
Washington (see State v. Williams, 23 Wash.App. 694, 598 P.2d 731
(1979)).

     In People  v. Hammond, 1 Ill.2d 65, 115 N.E.2d 331 (1953), a
burglary  of   an  IRS   office  was  held  to  be  within  state
jurisdiction, the  court holding  that the defendant was required
to prove  existence of  federal jurisdiction by U.S. ownership of
the property  and state  cession of  jurisdiction.   In two cases
from Michigan,  larcenies committed  at U.S.  Post Offices  which
were rented  were held  to be  within state  jurisdiction;    see


 Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
                          Page 15 of 17

People v. Burke, 161 Mich. 397, 126 N.W. 446 (1910) and People v.
Van Dyke,  276 Mich.  32, 267  N.W. 778  (1936);   see also In re
Kelly, 311  Mich. 596,  19 N.W.2d  218 (1945).  In Kansas City v.
Garner, 430 S.W.2d 630 (Mo.App., 1968), state jurisdiction over a
theft offense occurring in a federal building was upheld, and the
court stated that a defendant had to show federal jurisdiction by
proving  U.S.   ownership  of  the  building  and  a  cession  of
jurisdiction from  the state  to the  United States.   A  similar
holding was  made for  a theft at a U.S. missile site in State v.
Rindall, 146  Mon. 64,  404 P.2d  327 (1965).   In  Pendleton  v.
State, 734  P.2d 693  (Nev., 1987),  the state  court was held to
have jurisdiction  over a  DUI ("driving  under  the  influence")
committed on  federal lands,  the defendant having failed to show
U.S. ownership and state cession of jurisdiction.

     In People  v. Gerald,  40 Misc.2d  819,  243  N.Y.S.2d  1001
(1963), the  state was held to have jurisdiction of an assault at
a U.S. Post Office since the defendant did not meet his burden of
showing  presence   of  federal  jurisdiction;    and  because  a
defendant failed  to prove  title and  jurisdiction in the United
States for  an offense  committed at  a  customs  station,  state
jurisdiction was  upheld in  People v. Fisher, 97 A.D.2d 651, 469
N.Y.S.2d 187  (A.D. 3 Dept., 1983).  The proper method of showing
federal jurisdiction  in  state  court  is  demonstrated  by  the
decision in People v. Williams, 136 Misc.2d 294, 518 N.Y.S.2d 751
(1987).  This rule was likewise enunciated in State v. Burger, 33
Ohio App.3d 231, 515 N.E.2d 640 (1986), in a case involving a DUI
offense committed on a road near a federal arsenal.

     In Kuerschner  v. State,  493 P.2d 1402 (Okl.Cr.App., 1972),
the state  was held  to have jurisdiction of a drug sales offense
occurring  at  an  Air  Force  Base,  the  defendant  not  having
attempted to  prove federal  jurisdiction by  showing  title  and
jurisdiction of  the property  in question  in the United States;
see also  Towry v.  State,  540  P.2d  597  (Okl.Cr.App.,  1975).
Similar holdings  for murders committed at U.S. Post Offices were
made in State v. Chin Ping, 91 Or. 593, 176 P. 188 (1918), and in
United States  v. Pate,  393 F.2d  44 (7th  Cir., 1968).  Another
Oregon case,  State v.  Aguilar, 85  Or.App. 410,  736  P.2d  620
(1987), demonstrates  this rule.  And finally, in Curry v. State,
111 Tex.  Cr. 264, 12 S.W.2d 796 (1928), it was held that, in the
absence of proof that the state had ceded jurisdiction of a place
to the  United States,  the state courts had jurisdiction over an
offense.

     Therefore, in  federal criminal prosecutions, the government
must prove  the existence of federal jurisdiction by showing U.S.
ownership of  the place  where the  crime was committed and state
cession of  jurisdiction.   If the  government contends  for  the
power criminally  to prosecute  for an  offense occurring outside
"its  jurisdiction",   it   must   prove   an   extra-territorial
application  of   the  statute   in  question   as  well   as   a
constitutional foundation  supporting  the  same.    Absent  this
showing, no  federal prosecution  can be  commenced for  offenses
committed outside "its jurisdiction", i.e. the federal zone.

                             #  #  #


 Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
                          Page 16 of 17


                        PROOF OF SERVICE

I, Sheila  Terese,  Wallen,  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 AND DEMAND TO DISMISS
               FOR LACK OF CRIMINAL JURISDICTION:
                28 U.S.C. 1359;  FRCP Rules 9(b),
                     12(b)(1),(2), 12(h)(3)

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:


Office of the United States Attorney
110 South Church Avenue, Suite 8310
Tucson [85701]
ARIZONA REPUBLIC

Attorney General
Department of Justice
10th and Constitution, N.W.
Washington
DISTRICT OF COLUMBIA

Solicitor General
Department of Justice
10th and Constitution, N.W.
Washington
DISTRICT OF COLUMBIA



Executed on: _____________________________





__________________________________________
Sheila Terese, Wallen, Sui Juris
Citizen of Arizona state
all rights reserved without prejudice







 Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
                          Page 17 of 17


========================================================================
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
web site:  http://www.supremelaw.com : library & law school registration
ship to: c/o 2509 N. Campbell, #1776 : this is free speech,  at its best
             Tucson, Arizona state   : state zone,  not the federal zone
             Postal Zone 85719/tdc   : USPS delays first class  w/o this
========================================================================

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