Everett C. Gilbertson, Sui Juris
c/o General Delivery
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
) NOTICE OF MOTION AND MOTION
Plaintiff [sic], ) FOR RECONSIDERATION;
) NOTICE OF EXPLICIT RESERVATION;
v. ) NOTICE OF MOTION AND MOTION
) TO STAY PROCEEDINGS FOR
EVERETT C. GILBERTSON [sic], ) FAILING TO COMPLY WITH
) JURY SELECTION POLICY; AND
Defendant [sic]. ) NOTICE OF CHALLENGE AND
) CHALLENGE TO CONSTITUTIONALITY
) OF FEDERAL STATUTE:
) 28 U.S.C. 297, 517, 518, 1861,
) 1865, 1867(d), (e);
) F.R.Cr.P. Rule 6(b)(2);
) F.R.Evid. Rule 201(d);
________________________________) Full Faith and Credit Clause
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 reserve His fundamental Right to abate all jury
actions in the instant case; to Petition this honorable Court to
reconsider Defendant's previously filed Motion to stay the
instant proceedings, pursuant to the provisions of 28 U.S.C.
1867(d), pending final review of Plaintiff's proper challenge to
the constitutionality of 28 U.S.C. 1865; and to provide notice of
same to all interested parties. The offensive statute follows:
Motion to Stay Proceedings, Challenge to Statute :
Page 1 of 11
1865. Qualifications for jury service
(a) The chief judge of the district court, or such other
district court judge as the plan may provide ... shall
determine solely on the basis of information provided
on the juror qualification form and other competent
evidence whether a person is unqualified for, or
exempt, or to be excused from jury service. ...
(b) In making such determination the chief judge of the
district court, or such other district court judge as
the plan may provide, shall deem any person qualified
to serve on grand and petit juries in the district
court unless he --
(1) is not a citizen of the United States eighteen
years old who has resided for a period of one year
within the judicial district; ....
[28 U.S.C. 1865, emphasis added]
In stark contrast, it is the policy of the United States
that all citizens shall have the opportunity to be considered for
service on juries in the district courts of the United States.
To be constitutional, and to be consistent with its legislative
intent, the term "all citizens", as that term is used in 28
U.S.C. 1861, must be construed to include also Citizens of the
freely associated compact states who are not also citizens of the
United States (a/k/a "federal citizens"):
1861. Declaration of policy
It is the policy of the United States that all litigants in
Federal courts entitled to trial by jury shall have the
right to grand and petit juries selected at random from a
fair cross section of the community in the district or
division wherein the court convenes. It is further the
policy of the United States that all citizens shall have the
opportunity to be considered for service on grand and petit
juries in the district courts of the United States, and
shall have an obligation to serve as jurors when summoned
for that purpose.
[28 U.S.C. 1861, emphasis added]
Motion to Stay Proceedings, Challenge to Statute :
Page 2 of 11
Plaintiff hereby provides notice to all interested parties
of His verified statement of law and facts which constitute a
substantial failure to comply with the Constitution for the
United States of America, as lawfully amended (hereinafter "U.S.
Constitution"), and with the provisions of 28 U.S.C. 1861:
Declaration of Policy. See 28 U.S.C. 1867(d) and (e). The
indicting Grand Jury and the convicting Petit Jury consisted of
members all of whom were citizens of the United States, not
necessarily Citizens of Minnesota state. See Dyett v. Turner and
State v. Phillips infra; Right of Election; voter registration
affidavits; U.S. v. Griffith, 2 F.2d 925 (1924). Also confer at
"Federal citizenship" in Black's Law Dictionary, Sixth Edition.
By way of introduction to the crucial matters of fact and
law which are discussed at length in Plaintiff's verified
statement, which is incorporated by reference as if set forth
fully herein, this honorable Court is hereby requested to take
formal judicial notice of the following standing authorities:
We have in our political system a Government of the United
States and a government of each of the several States. Each
one of these governments is distinct from the others, and
each has citizens of its own .... Slaughter-House Cases
[United States v. Cruikshank, 92 U.S. 542 (1875)]
[emphasis added]
A person who is a citizen of the United States** is
necessarily a citizen of the particular state in which he
resides. But a person may be a citizen of a particular
state and not a citizen of the United States. To hold
otherwise would be to deny to the state the highest exercise
of its sovereignty, -- the right to declare who are its
citizens.
[State v. Fowler, 41 La. Ann. 380]
[6 S. 602 (1889), emphasis added]
There are, then, under our republican form of government,
two classes of citizens, one of the United States and one of
the state. One class of citizenship may exist in a person,
without the other, as in the case of a resident of the
District of Columbia; but both classes usually exist in the
same person.
[Gardina v. Board of Registrars, 160 Ala. 155]
[48 S. 788, 791 (1909), emphasis added]
There are over 100,000 elementary and secondary schools in
the United States. ... Each of these now has an invisible
federal zone extending 1,000 feet beyond the (often
irregular) boundaries of the school property.
[U.S. v. Lopez, 115 S.Ct. 1624 (1995)]
[emphasis added]
Motion to Stay Proceedings, Challenge to Statute :
Page 3 of 11
As a Party to the instant case, Plaintiff hereby challenges
both the Grand and Trial Juries on the ground that such juries
was not selected in conformity with section 1861 of Title 28,
because Citizens of Minnesota state who are not also citizens of
the United States (a/k/a federal citizens) are disqualified from
serving by virtue of their chosen Citizenship status. See
28 U.S.C. 1867(e); Right of Election; 15 Statutes at Large,
Chapter 249 (Section 1), enacted July 27, 1868; jus soli; jus
sanguinis. Specifically, the offensive statute forces the
following unconstitutional result upon Citizens of Minnesota
state who choose not also to be citizens of the United States
(a/k/a federal citizens), by Right of Election:
citizen of Citizen of Qualified
United States Minnesota state to serve
Yes Yes Yes
Yes No Yes
No No No
No Yes No **
This result ("**") violates the Tenth Amendment by disqualifying
Citizens of Minnesota state from serving on federal grand and
petit juries when they are not also federal citizens, thus
denying to accused Citizens of Minnesota state a jury of Their
Peers when a jury consists only of federal citizens.
An intentional discrimination against a class of persons,
solely because of their class, by officers in charge of the
selection and summoning of grand jurors in a criminal case, is a
violation of the fundamental Rights of an accused. See Cassell
v. Texas, 339 U.S. 282; Atkins v. Texas, 325 U.S. 398; Pierre
v. Louisiana, 306 U.S. 354. Such a violation is not excused by
the fact that the persons actually selected for jury service
otherwise possess the necessary qualifications for jurors as
prescribed by statute. See State v. Jones, 365 P.2d 460.
Motion to Stay Proceedings, Challenge to Statute :
Page 4 of 11
Discrimination in the selection of a grand jury, as
prohibited by the U.S. Constitution, means an intentional,
systematic non-inclusion because of class. There are two (2)
classes of citizenship in America. E.g. Gardina supra. The
statute 28 U.S.C. 1865(b)(1) specifically excludes those classes
of Citizens who are not mentioned. Inclusio unius est exclusio
alterius.
The following statute dramatically demonstrates that
Congress appreciates the difference between the two classes, and
knows how to discriminate between "white citizens" (read "state
Citizens") and "citizens of the United States" (a/k/a federal
citizens). The Act of Congress called the Civil Rights Act, 14
U.S. Statutes at Large, p. 27, which was the forerunner of the
so-called 14th Amendment, amply shows the intent of Congress, as
follows:
... [A]ll persons born in the United States and not subject
to any foreign power, excluding Indians not taxed, are
hereby declared to be citizens of the United States; and
such citizens, of every race and color ... shall have the
same right, in every State and Territory in the United
States ... to full and equal benefit of all laws and
proceedings for the security of person and property, as is
enjoyed by white citizens.
[emphasis added]
Motion to Stay Proceedings, Challenge to Statute :
Page 5 of 11
Once a prima facie case for the existence of purposeful
discrimination is made out, the burden shifts to the prosecution
in a criminal case to prove otherwise. See Whitus v. Georgia,
385 U.S. 545. Reliance on the so-called Fourteenth Amendment to
resolve this matter is moot, because the Fourteenth Amendment was
never lawfully ratified, and because the authorities cited supra
allow for the possibility that a Person can be a state Citizen
without also being a federal citizen, whether or not the
Fourteenth Amendment was lawfully ratified. See State v.
Phillips, 540 P.2d 936, 941 (1975); Dyett v. Turner, 20 Utah 2d
403, 439 P.2d 266, 270 (1968); Full Faith and Credit Clause; 28
Tulane Law Review 22; 11 South Carolina Law Quarterly 484;
House Congressional Record, June 13, 1967, p. 15641 et seq.
As such, there is no constitutional provision which makes a
federal citizen also a citizen of the Union state in which s/he
resides, nor is there any constitutional provision which states
that the validity of the public debt shall not be questioned.
The judicial history of American citizenship is a subject
which is rich in nuance and detail, as demonstrated in
Plaintiff's verified statement. For example, at a time when
those Islands were in the federal zone, the Supreme Court of the
Philippine Islands found that "citizenship," strictly speaking,
is a term of municipal law and, according to that Court, it is
municipal law which regulates the conditions on which citizenship
is acquired:
Citizenship, says Moore on International Law, strictly
speaking, is a term of municipal law and denotes the
possession within the particular state of full civil and
political rights subject to special disqualifications, such
as minority, sex, etc. The conditions on which citizenship
are [sic] acquired are regulated by municipal law. There is
no such thing as international citizenship nor international
law (aside from that which might be contained in treaties)
by which citizenship is acquired.
[Roa v. Collector of Customs]
[23 Philippine 315, 332 (1912)]
Motion to Stay Proceedings, Challenge to Statute :
Page 6 of 11
Indeed, international law is divided roughly into two groups:
(1) public international law and (2) private international law.
Citizenship is a term of private international law (also known as
municipal law) in which the terms "state", "nation" and "country"
are all synonymous:
Private international law assumes a more important aspect in
the United States than elsewhere, for the reason that the
several states, although united under the same sovereign
authority and governed by the same laws for all national
purposes embraced by the Federal Constitution, are
otherwise, at least so far as private international law is
concerned, in the same relation as foreign countries. The
great majority of questions of private international law are
therefore subject to the same rules when they arise between
two states of the Union as when they arise between two
foreign countries, and in the ensuing pages the words
"state," "nation," and "country" are used synonymously and
interchangeably, there being no intention to distinguish
between the several states of the Union and foreign
countries by the use of varying terminology.
[16 Am Jur 2d, Conflict of Laws, Sec. 2]
[emphasis added]
Congress does refer to the Union states as "countries." See
28 U.S.C. 297.
GROUNDS FOR RECONSIDERATION
Plaintiff only recently discovered that the counsel on whom
Plaintiff relied for paralegal assistance in preparing the first
such motion, failed to transmit all text properly via counsel's
electronic mail ("email") system. This meant that Plaintiff's
Motion to Stay Proceedings, as previously submitted to this
honorable Court, was incomplete and missing important (even
crucial) information. Plaintiff desires this honorable Court to
have the best information available to reconsider said Motion.
Plaintiff now attaches the essay entitled "Juries in Check Around
the Nation" by Paul Andrew Mitchell, not previously submitted,
and incorporates it by reference as if set forth fully herein.
Motion to Stay Proceedings, Challenge to Statute :
Page 7 of 11
RELIEF SOUGHT
Wherefore, Plaintiff petitions this honorable Court for
reconsideration of Plaintiff's proper Motion for an indefinite
stay of proceedings in the instant case, pending proper review of
the substantial issues of law and fact which are alleged in this
Motion and which are contained in Plaintiff's sworn (verified)
statement which is submitted concurrently with this Motion, and
which is incorporated by reference as if set forth fully herein.
In the event that Plaintiff should prevail on said issues,
Plaintiff explicitly reserves His fundamental Right to abate all
jury action(s) in the instant case, and to dismiss the instant
case with prejudice, because of the unlawful class discrimination
which is exhibited by the current Jury Selection and Service Act,
28 U.S.C. 1861 et seq.
Dated: _______________________________________
Respectfully submitted,
/s/ Everett C. Gilbertson
______________________________________________
Everett C. Gilbertson, Sui Juris
Citizen of Minnesota state
(expressly not a citizen of the United States)
All Rights Reserved without Prejudice
Motion to Stay Proceedings, Challenge to Statute :
Page 8 of 11
PROOF OF SERVICE
I, Everett C. Gilbertson, 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 RECONSIDERATION;
NOTICE OF EXPLICIT RESERVATION;
NOTICE OF MOTION AND MOTION TO STAY PROCEEDINGS
FOR FAILING TO COMPLY WITH JURY SELECTION POLICY;
AND NOTICE OF CHALLENGE AND CHALLENGE TO
CONSTITUTIONALITY OF FEDERAL STATUTE:
28 U.S.C. 297, 517, 518, 1861, 1865, 1867(d), (e);
F.R.Cr.P. Rule 6(b)(2); F.R.Evid. Rule 201(d);
Full Faith and Credit Clause
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:
Henry Shea
United States Attorneys
110 South Fourth Street
Minneapolis [zip code exempt]
MINNESOTA STATE
Attorney General
Department of Justice
10th & Constitution, N.W.
Washington [zip code exempt]
DISTRICT OF COLUMBIA
Solicitor General
Department of Justice
10th & Constitution, N.W.
Washington [zip code exempt]
DISTRICT OF COLUMBIA
Dated: _________________________________
/s/ Everett C. Gilbertson
__________________________________________
Everett C. Gilbertson, Sui Juris
Citizen of Minnesota state
(expressly not a citizen of the United States)
All Rights Reserved without Prejudice
See USPS Publication #221 for addressing instructions.
Motion to Stay Proceedings, Challenge to Statute :
Page 9 of 11
For Immediate Release July 27, 1996
Juries in Check Around the Nation
Payson, Arizona
The founders of a new legal cooperative -- the Supreme Law
Firm -- have just issued a ground-breaking formal challenge to
the process of selecting grand and trial juries everywhere in
America.
Paul Mitchell, one of the co-founders, has recently
documented a serious flaw in the laws enacted by Congress to
select jurors for grand and trial jury service. These laws are
found in Title 28, United States Code, Sections 1861 and 1865,
the federal Jury Selection and Service Act.
On the one hand, Congress has said that all citizens should
have the opportunity to serve on both kinds of juries (section
1861). On the other hand, Congress has also said that jury
candidates must be federal citizens (section 1865). Citizens of
the several Union states are not mentioned in these Acts of
Congress, and the omission was intentional.
Grand juries are convened to consider probable cause for
issuing indictments, or formal charges, against people suspected
of criminal behavior. Trial juries are convened to try those
people and to determine their guilt or innocence. Both kinds of
juries are now assembled entirely from voter registration lists,
which consist of federal citizens only. In many states, it is a
felony to falsify information on a voter registration affidavit.
Ever since the Civil War, Congress has been pushing hard,
through force and fraud, to get all Americans into a second,
inferior class of citizenship known as federal citizenship. This
class did not exist in the law before the Civil War.
Prior to that war, there was only one class of citizenship,
a class which today is called state Citizenship. This is the
class that is mentioned in the qualifications for serving in the
Congress and the White House. The term "United States" in those
provisions means "states United", and the "C" in Citizen is a
capital "C", not a lower-case "c" as in the case of federal
citizens.
Unfortunately for Congress, the U.S. Supreme Court has
ruled, several times, that class discrimination in the selection
of grand or trial jurors is a ground for proving that a jury is
not a legal body. This means that any jury which exhibits class
discrimination cannot issue lawful indictments, nor can it issue
lawful verdicts. There are two "classes" of citizens in America.
In fact, several courts have already ruled that one can be a
state Citizen without also being a federal citizen, regardless of
the Civil War and its ugly aftermath.
Motion to Stay Proceedings, Challenge to Statute :
Page 10 of 11
"We are prepared to stipulate that federal citizens have no
standing to challenge the obvious conflict between these two
statutes," says Paul Mitchell, the author of several court briefs
which are racing through the Internet at present. "But, when it
comes to Sovereign state Citizens, the class discrimination is
unmistakable, and unconstitutional."
At an introductory lecture last week in Mesa, Arizona,
members of the audience were enthralled by the prospect that
government indictments against state Citizens will soon be thrown
out. "The correct procedural move is to petition the court for a
dismissal, or a stay of proceedings, pending final resolution of
the challenge," explained Mitchell. A stay is a procedural
"freeze" on any further hearings, until the controversy is
settled.
Final resolution means that the matter will be finally
decided by the United States Supreme Court, probably after two or
more federal appeals courts decide the matter with opposite
results. This will almost guarantee a hearing before the Supreme
Court.
Sample briefs can be obtained from the Supreme Law Firm by
contacting founder Paul Mitchell at supremelawfirm@altavista.net.
With minor changes, the two briefs can be adapted to any state or
federal prosecution, no matter at what step in the proceedings.
Mitchell is even prepared to utilize their logic in habeas corpus
petitions, in order to release state Citizens from federal
prisons. Their indictments and convictions were decided by
juries that were not legal bodies.
Contact: Paul Mitchell, Mail: c/o 2509 N. Campbell, #1776
Counselor at Law Tucson [zip code exempt]
Supreme Law Firm ARIZONA STATE
email: supremelawfirm@altavista.net
website: http://supremelaw.com
Motion to Stay Proceedings, Challenge to Statute :
Page 11 of 11
# # #
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U.S.A. v. Gilbertson, 8th Circuit