Sheila Terese, Wallen, Sui Juris
c/o General Delivery
Arivaca [zip code exempt]
ARIZONA REPUBLIC
In Propria Persona
Under Protest, Necessity, and
by Special Visitation Only
UNITED STATES DISTRICT COURT
JUDICIAL DISTRICT OF ARIZONA
UNITED STATES OF AMERICA, ) Case No. 95-484-WDB
)
Plaintiff, ) NOTICE AND DEMAND
) TO DISMISS FOR LACK
v. ) OF CRIMINAL JURISDICTION
)
Sheila Terese, Wallen, ) 28 U.S.C. 1359;
) FRCP Rules 9(b),
Defendant. ) 12(b)(1),(2), 12(h)(3)
________________________________)
COMES NOW Sheila Terese, Wallen, Sui Juris, Citizen of Arizona
state and Defendant in the above entitled matter (hereinafter
"Defendant"), to demand an immediate dismissal of the instant
criminal case, with prejudice, for lack of 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 Her 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 17
KNOW ALL BY THESE PRESENTS:
I, Sheila Terese, Wallen, Sui Juris, and 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 indictment is alleged to have taken place. I
was not arrested in any fort, magazine, arsenal, dockyard,
"needful building", or other federal enclave within the Arizona
Republic, 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.
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 17
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,
or robbery, 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 territories and possessions, or on the
high seas. With the single exceptions of treason and/or
counterfeiting, and notwithstanding any of the effects which
murder, robbery, and gun possession might have on interstate
commerce, Congress understood that it could not establish
nationwide prohibitions.
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). " ...[O]n the other hand, since all
Federal Crimes are statutory and all criminal prosecutions in the
Federal territorial courts are based on Acts of Congress,"
Federal Rules of Criminal Procedure Rule 26, in "taking of
testimony," notes of Advisory Committee on Rules, paragraph 2.
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 3 of 17
(2) Rule 54, Application and Exception, paragraph (c),
Federal Rules of Criminal Procedure, "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.
(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,
Constitution for the United States of America, which grant of
authority does not extend over every square inch of the 48
contiguous Union States.
(5) In principle, the exclusive legislative jurisdiction of
the federal government is not addressed to subject matter, but to
geographical location. 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).
The jurisdictional challenge issue can never be waived by the
Accused, nor acquiesced by the Accused, in the absence of a
positive showing upon the record that jurisdiction was clearly
and unambiguously established.
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 4 of 17
(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.
(8) In criminal prosecutions, where the federal government
is the 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 the state has ceded to it
jurisdiction over that property. It was held by the U.S. Supreme
Court in the case of Fort Leavenworth Railway Co. v. Iowa, 114
U.S. 525 at 531 (1885):
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 in the United States 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, and the fact that
the state authorized the government to take and exercise
jurisdiction was 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 17
(11) Where a federal court is without jurisdiction of the
offense, judgment of conviction of the court and/or the jury is
void ab initio, on its face. Bauman v. U.S., 156 F.2d 534 (5th
Cir. 1946).
(12) Federal criminal jurisdiction is never presumed; it
must always be proven; and it can never be waived. U.S. v.
Rogers, 23 Fed. 658 (D.C., 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.
The United States District Court creation and composition
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 28, lists civil,
admiralty, maritime, patent, bankruptcy, etc., and does not once
list, mention, or describe any criminal jurisdiction. It just is
not there, so don't bother looking for it!
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 6 of 17
(16) Acts of Congress creating the United States District
Courts do not vest said territorial tribunals with any criminal
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.
(17) The United States District Court 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.
(18) It is apparent that the United States District Court
for the District of Arizona 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.
(19) 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].
(20) There is a distinct and definite difference between a
"United States District Court" and a "District Court of the
United States". 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.
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 7 of 17
(21) 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, 93 L.Ed 1121,
69 S.Ct. 936.
(22) 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 amere
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."
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 8 of 17
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.
(23) Besides the recent Lopez decision, it is interesting to
note that 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, Case
No. 94-CR-140 (March 16, 1995) (U.S.D.C. Wisconsin); and U.S. v.
Kearns, Case No. SA-95-CR-201 (October 6, 1995) (U.S.D.C.,
Texas).
(24) Interestingly enough, in a bankruptcy case in the U.S.
Bankruptcy Court, Middle District of Pennsylvania (Chapter 13),
Case No. 5-94-00839, titled In re: Francis Patrick Farrell v.
IRS/BATF, the alleged debtor sued out a compulsory counterclaim
against the IRS/BATF after the alleged creditor submitted its
proof of claim.
The counterclaim showed an extent of corruption unparalleled
in American history, to which agencies of the federal government
will often resort, specifically by placing a "T-Code" on
someone's Individual Master File ("IMF").
In this way, the IRS/BATF used Admiralty and Maritime
forfeiture laws to deprive a State Citizen of property and
assets, and to mis-classify Him as a "high level narcotics
trafficker." This occurred on November 17,1995! Why? See U.S.
v. Good, 114 S.Ct. 492 at 502, footnote 2 (1993).
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 9 of 17
SUMMARY
The United States District Courts have no criminal
jurisdiction whatsoever to prosecute a State Citizen within one
of the 50 States of the Union which comprises the United States
of America, until and unless Congress says so. Until and unless
the federal government can prove ownership over said geographical
land mass, particularly that parcel of land which is the private
real property of the Defendant, the United States District Courts
have no criminal jurisdiction whatsoever within the 50 Union
States. Not a single Act of Congress vests the United States
District Courts, as distinct from District Courts of the United
States, with anything but "civil" authority. There is absolutely
no criminal jurisdiction vested in said territorial tribunals.
REMEDY DEMANDED
Therefore, Defendant hereby demands that this Article IV
legislative tribunal establish exclusive jurisdiction by
producing certified documents consisting of the following:
(a) Documentation showing "United States" (federal
government) ownership of each and every geographical location
mentioned in the instant indictment, wherein the alleged criminal
activity took place;
(b) Documentation from the Arizona Legislature which
provides evidence of a cession by Arizona state surrendering
jurisdiction to the "United States" (federal government) over the
same geographical location as stated in (a) above;
(c) Documentation pursuant to Title 40 U.S.C. 255, wherein
the "United States" (federal government) accepted jurisdiction to
the same geographical location as stated in (a) above, or,
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.
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 10 of 17
Executed on August 13, 1996
/s/ Sheila Wallen
Sheila Terese, Wallen, Sui Juris
Citizen of Arizona state
/s/ Paul Andrew Mitchell
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
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.
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 12 of 17
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
(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.
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 13 of 17
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).
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 14 of 17
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
(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)).
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 15 of 17
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
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: _____________________________
/s/ Sheila Wallen
__________________________________________
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
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U.S.A. v. Wallen