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
)
Plaintiff [sic], ) NOTICE OF MOTION AND
) MOTION TO DISMISS
v. ) DUE TO ILLEGAL GRAND JURY
) PROCEEDINGS:
EVERETT C. GILBERTSON [sic], ) 28 U.S.C. 1867;
) Rule 6(b)(2), Federal Rules
Defendant [sic]. ) of Criminal Procedure
________________________________)
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 move this honorable Court to dismiss the instant
case with prejudice, due to improper seating and improper conduct
of the federal grand jury which issued the indictment on which
the instant case is premised, and to provide formal Notice of
same to all interested party(s).
Motion to Dismiss for Illegal Grand Jury Proceedings:
Page 1 of 9
This honorable Court will please take formal judicial Notice
of the fact that Defendant is not a bar-licensed attorney, and
has not had the advantage(s) of formal education in an accredited
law school. For this reason, Defendant must learn and digest the
particulars of law and procedure independently, as time permits.
Therefore, this Motion is timely because the proper workings of
the federal grand jury system have only recently been deciphered.
The seven-day time limit for filing motions related to improper
grand jury procedure(s) does not apply in the instant case,
particularly when due process Rights guaranteed by the U.S.
Constitution are at issue. Even with the statutory time limit,
this Motion is timely because it is being filed as soon as
possible after discovery of the rules according to which a
federal grand jury is required to proceed. Moreover, related
statutory provisions have only recently been unraveled to clarify
the grounds and the precise manner in which this Motion is
required to be prepared and submitted to this honorable Court.
The key provision which demonstrates that Defendant should
have been notified of an investigation and proceedings, premised
upon allegations of complaint prior to the grand jury having been
convened, is found at Rule 6(b)(1) of the Federal Rules of
Criminal Procedure, to wit:
(1) Challenges. The attorney for the government or a
defendant who has been held to answer in district court may
challenge the array of jurors on the ground that the grand
jury was not selected, drawn or summoned in accordance with
law, and may challenge an individual juror on the ground
that the juror is not legally qualified. Challenges shall
be made before the administration of the oath to the jurors
and shall be tried by the court.
[emphasis added]
Motion to Dismiss for Illegal Grand Jury Proceedings:
Page 2 of 9
By failing properly to notify the Defendant of allegations
of complaint and intent to present matters to a grand jury for
consideration, the United States Attorney effectively deprived
Defendant of: (1) the Fourth Amendment Right to have access to
affidavits of complaint; (2) the Sixth Amendment Right to
interview witnesses against him; (3) the Sixth Amendment Right
to have the assistance of Counsel during the proceedings; and
(4) the Right to challenge the jury selection process and/or the
qualifications of individual jury candidates.
In the grand jury forum, prospective defendants enjoy Rights
articulated in Rule 5.1(a), Federal Rules of Criminal Procedure,
pertaining to preliminary examinations, to wit:
The defendant may cross-examine adverse witnesses and may
introduce evidence.
[Rule 5.1(a), Federal Rules of Criminal Procedure]
This Court will also please take formal Notice that the
Federal Rules of Evidence, which are otherwise restrictive, do
not apply to preliminary hearings or to grand jury proceedings.
See Rule 1101(d)(2) and (3), Federal Rules of Evidence.
Accordingly, the applicable elements of the common law and
constitutionally guaranteed Rights are both preserved in these
two forums. According to the U.S. Supreme Court's decision in
Blair v. United States, 250 U.S. 273, 282 (1919), the grand jury
retains common law powers and authority vested by common law of
English-American lineage prior to the ratification of the U.S.
Constitution. The reason for the preservation of the grand
jury's traditional authority, with the exclusion provision at
Rule 1101(d)(2), is found at 28 U.S.C. 2072, which conveys
authority for the U.S. Supreme Court to promulgate rules for
statutory courts of the United States, to wit:
(b) Such rules shall not abridge, enlarge or modify any
substantive right. All laws in conflict with such rules
shall be of no further force or effect after such rules have
taken effect.
Motion to Dismiss for Illegal Grand Jury Proceedings:
Page 3 of 9
Therefore, convening a grand jury in secret, without
affording Defendant an opportunity to challenge the jury
selection process or the qualifications of the individual jurors,
and to exercise Fourth and Sixth Amendment Rights to have access
to the substance of complaints, to interview adverse witnesses,
and either stand in Defendant's own stead or be represented by
counsel, defaults the alleged indictment into an action ultra
vires ab initio (without authority from the beginning). The
entire grand jury array must be defaulted, therefore, and the
indictment dismissed, pursuant to 28 U.S.C. 1867(d), to wit:
(d) Upon motion filed under subsection (a), (b), or (c) of
this section, containing a sworn statement of facts which,
if true, would constitute a substantial failure to comply
with provisions of this title .... If the court determines
that there has been a substantial failure to comply with the
provisions of this title in selecting the grand jury, the
court shall stay the proceedings pending the selection of a
grand jury in conformity with this title or dismiss the
indictment, whichever is applicable.
[emphasis added]
Where the instant case is concerned, the alleged indictment
must be dismissed because the entire selection and seating
process was conducted under the exclusive control of the United
States Attorney, without Defendant having had an opportunity to
participate in the selection and qualification process, as
prescribed by Rule 6(b)(1), Federal Rules of Criminal Procedure.
This, of necessity, defaults all members of the grand jury
responsible for the alleged indictment, because an a posteriori
position does not afford the opportunity to correct an error
which abridges the provisions of Rule 6(b)(1) of the Federal
Rules of Criminal Procedure.
Defendant's Affidavit of Facts, as required by 28 U.S.C.
1867(d), follows the PROOF OF SERVICE attending to this Motion.
Motion to Dismiss for Illegal Grand Jury Proceedings:
Page 4 of 9
REMEDY REQUESTED
Premises considered, Defendant moves this honorable Court to
dismiss the indictment with prejudice, said dismissal being
mandated by the operation of law.
VERIFICATION
Defendant hereby verifies, under penalty of perjury, under
the laws of the United States of America, without the "United
States", that the above statement of facts is true and correct,
and all matters of law addressed herein are accurate and true, to
the best of Defendant's current information, knowledge, and
belief, so help Me God, pursuant to 28 U.S.C. 1746(1).
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 Dismiss for Illegal Grand Jury Proceedings:
Page 5 of 9
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 TO DISMISS
DUE TO ILLEGAL GRAND JURY PROCEEDINGS:
28 U.S.C. 1867; Rule 6(b)(1),
Federal Rules of Criminal Procedure
AFFIDAVIT OF FACTS IN SUPPORT OF MOTION TO DISMISS
DUE TO ILLEGAL GRAND JURY PROCEEDING:
28 U.S.C. 1746(1), 1867(d)
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 Dismiss for Illegal Grand Jury Proceedings:
Page 6 of 9
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
)
Plaintiff [sic], ) AFFIDAVIT OF FACTS
) IN SUPPORT OF
v. ) MOTION TO DISMISS DUE TO
) ILLEGAL GRAND JURY PROCEEDING:
EVERETT C. GILBERTSON [sic], ) 28 U.S.C. 1746(1), 1867(d)
)
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 submit this, Defendant's AFFIDAVIT OF FACTS.
VERIFICATION
Defendant hereby verifies, under penalty of perjury, under
the laws of the United States of America, without the "United
States", that the following statement of facts is true and
correct, and all matters of law addressed herein are accurate and
true, to the best of Defendant's current information, knowledge,
and belief, so help Me God, pursuant to 28 U.S.C. 1746(1).
Motion to Dismiss for Illegal Grand Jury Proceedings:
Page 7 of 9
I am a Citizen of Minnesota state, which is one of the
several States party to the Constitution for the United States of
America, as lawfully amended (hereinafter "U.S. Constitution").
I inhabit and live in Battle Lake, Minnesota state, on
privately owned land which is not within any federal enclave or
federal area, as ceded to the United States (federal government)
in compliance with 40 U.S.C. 255. See also 18 U.S.C. 7(3).
As such, I am endowed by My Creator with certain unalienable
Rights, and I am entitled to all Rights secured by the U.S.
Constitution, particularly with respect to due process of law
provisions articulated in the Fourth, Fifth, Sixth, and Seventh
Amendments to said Constitution.
I attest that I was never served with actual notice of any
grand jury investigation concerning allegations made in the
alleged indictment(s) filed in the instant case.
I attest that I was never present, nor was I represented by
counsel, when the grand jury was drawn and seated and, therefore,
I did not have the opportunity to challenge the grand jury
qualification or seating process before the fact, as prescribed
by Rule 6(b)(1) of the Federal Rules of Criminal Procedure.
I attest that I was never provided with copies of any valid
affidavits of complaint, as required by the Fourth Amendment, nor
did I have an opportunity to confront witnesses against Me, as
assured by the Sixth Amendment.
I attest that I was never provided the opportunity to
present evidence to the grand jury once convened, nor to call
witnesses on My behalf.
Motion to Dismiss for Illegal Grand Jury Proceedings:
Page 8 of 9
I attest that the first knowledge I had of any such
proceedings was conveyed to Me by means of a "Warrant for Arrest"
[sic] which was delivered from the office of the Clerk of the
United States District Court [sic] by "IRS" agents [sic] and by
Ottertail County Sheriff's deputies, and by means of an alleged
"indictment" [sic] having been presented, unsigned, at the
"arraignment" [sic].
Further Affiant Sayeth Naught.
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 Dismiss for Illegal Grand Jury Proceedings:
Page 9 of 9
# # #
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U.S.A. v. Gilbertson, District Court