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 COURT OF APPEALS EIGHTH CIRCUIT UNITED STATES OF AMERICA [sic], ) Case No. 97-2099-MNST ) Plaintiff [sic]/ ) USDC Minneapolis #CR-4-96-65 Appellee, ) DCUS Minneapolis #4-96-65 v. ) ) MOTION FOR RELEASE EVERETT C. GILBERTSON [sic], ) PENDING APPEAL: ) Defendant [sic]/ ) FRAP Rule 9(a) Appellant. ) ) ________________________________) COMES NOW Everett C. Gilbertson, Sui Juris, Citizen of Minnesota state, expressly not a citizen of the United States ("federal citizen"), and Appellant in the above entitled matter (hereinafter "Appellant") to move this honorable Court, pursuant to Rule 9(a) of the Federal Rules of Appellate Procedure ("FRAP"), for an Order allowing Appellant to remain at liberty upon the same terms and conditions as His pretrial release, pending appeal of the substantial issues of law and fact which have arisen in the instant case, and in the related case of Gilbertson v. United States et al., DCUS Minneapolis, #4-96-65. Appellant is not a threat to abscond, nor has Appellant shown any likelihood of danger to others. Motion for Release Pending Appeal: Page 1 of 6 Appellant believes there is a substantial likelihood that this honorable Court will reverse the conviction, in part because of the specific issues which arose at the hearing in the district court on April 23, 1997, to consider Appellant's MOTION FOR RELEASE PENDING APPEAL. United States District Judge James M. Rosenbaum denied said MOTION at that hearing, on grounds which are recorded in the Reporter's Transcript of that hearing ("RT"). Appellant wishes to inform this honorable Court that an expedited copy of said RT has been requested from the district court reporter and will be filed, along with the instant MOTION, with all deliberate speed, pursuant to the requirements of FRAP Rule 9(a), to wit: An Appellant who questions the factual basis for the district court's order must file a transcript of any release proceedings in the district court or an explanation of why a transcript has not been obtained. The appeal must be determined promptly. Appellant wishes to bring squarely before this Court the related case of Gilbertson v. United States et al., DCUS Minneapolis case number #4-96-65. In that case, both the United States and James M. Rosenbaum are named respondents in a civil action to enjoin the improper withholding of Mr. Rosenbaum's Oath of Office and related credentials, and to compel discovery of said credentials, after they were properly, and timely, requested by means of a Freedom of Information Act ("FOIA") request and a separate NOTICE AND DEMAND for same. Appellant has openly and formally challenged the constitutionality of the blanket FOIA exemption for the federal judiciary, and Appellant has exhausted all administrative remedies available to Him under the FOIA. Appellant's NOTICE AND DEMAND also met with default. Motion for Release Pending Appeal: Page 2 of 6 Accordingly, Appellant submits that James M. Rosenbaum was prevented from presiding at the hearing on April 23, 1997, to consider Appellant's MOTION FOR RELEASE PENDING APPEAL, due to an adverse conflict of interest. The existence of such a conflict is sufficient ground for immediate and mandatory recusal from the instant case, pursuant to 28 U.S.C. 455(a), to wit: (a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might be reasonably be questioned. The term "shall" in 28 U.S.C. 455(a) denotes an imperative, mandatory meaning which prevented Mr. Rosenbaum from exercising any discretion whatsoever in the matter of presiding at Appellant's hearing on April 23, 1997. Moreover, the district court's decision to deny Appellant's MOTION FOR RELEASE PENDING APPEAL was predicated upon Mr. Rosenbaum's findings concerning Appellant's declared citizenship status. Appellant lays claim to the status of a Citizen of Minnesota state who is not also a federal citizen, by Right of Election, under the Tenth Amendment. See Gardina v. Board of Registrars, 160 Ala. 155, 48 S. 788, 791 (1909); State v. Fowler, 41 La. Ann. 380, 6 S. 602 (1889). Confer also at "Federal citizenship" in Black's Law Dictionary, Sixth Edition. (There is no comparable definition of state Citizenship in Black's Law Dictionary, Sixth Edition.) Motion for Release Pending Appeal: Page 3 of 6 Appellant argues that such an election is a political Right which is available to Him, regardless of whether the so-called 14th amendment was ratified or not. See Dyett v. Turner, 439 P.2d 266, 270 (1968) (begin reading where "General Lee had surrendered ..."); Full Faith and Credit Clause. Confer also at "Political rights" under "Right/Constitutional Rights" in Black's Law Dictionary, Sixth Edition, to wit: Political rights consist in the power to participate, directly or indirectly, in the establishment or administration of government, such as the right of citizenship, that of suffrage, the right to hold public office, and the right of petition. [emphasis added]. Mr. Rosenbaum disputed Appellant's claim to the status of a Citizen of Minnesota state who is not also a citizen of the United States, and concluded that Appellant's beliefs justified continued detention of Appellant, in violation of the First Amendment and of Appellant's immunity from Bills of Attainder. Appellant also believes that Mr. Rosenbaum's decision denying Appellant's MOTION FOR RELEASE is also based, in part, upon the prejudice which Mr. Rosenbaum has exhibited by failing to rule upon Appellant's MOTION FOR RECONSIDERATION of Appellant's previously filed MOTION TO STAY PROCEEDINGS FOR FAILING TO COMPLY WITH JURY SELECTION POLICY AND CHALLENGE TO CONSTITUTIONALITY OF FEDERAL STATUTE (28 U.S.C. 1865(b)(1)). Mr. Rosenbaum initially denied said MOTION TO STAY PROCEEDINGS, but failed to elaborate any basis for that denial, and also failed to provide Appellant with a written Finding of Facts and Conclusions of Law. Appellant submits that His MOTION TO STAY PROCEEDINGS was procedurally proper, and substantively correct with respect to matters of fact and law, and it deserved careful reconsideration by the district court, and it also deserved a written Finding of Facts and Conclusions of Law, in anticipation of a major appeal on Appellant's challenge to the constitutionality of the Jury Selection and Service Act ("JSSA"), section 1865(b)(1). Motion for Release Pending Appeal: Page 4 of 6 Appellant respectfully requests this honorable Court to take special Notice of the fact that the Office of the United States Attorney in Minneapolis failed to respond in writing to Appellant's MOTION TO STAY PROCEEDINGS. Appellant argues that the United States is now estopped, by its silence, from rebutting Appellant's challenge to the constitutionality of the JSSA. REMEDY REQUESTED Wherefore, all premises considered, Appellant moves this honorable Court for an immediate order releasing Appellant from detention, upon the same terms and conditions as his pretrial release, pending appeal and final resolution of the substantial issues of law and fact which have arisen in the instant case, and in the related case. VERIFICATION I, Everett C. Gilbertson, Sui Juris, hereby verify, under penalty of perjury, under the laws of the United States of America, without (outside) the "United States", that the above statement of facts and laws is true and correct, to the best of My 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) Motion for Release Pending Appeal: Page 5 of 6 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): MOTION FOR RELEASE PENDING APPEAL: FRAP Rule 9(a) 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: Attorney General James M. Rosenbaum Department of Justice United States District Court 10th & Constitution, N.W. 110 South Fourth Street Washington [zip code exempt] Minneapolis [zip code exempt] DISTRICT OF COLUMBIA MINNESOTA STATE Solicitor General Henry Shea Department of Justice United States Attorneys 10th & Constitution, N.W. 110 South Fourth Street Washington [zip code exempt] Minneapolis [zip code exempt] DISTRICT OF COLUMBIA MINNESOTA STATE Dated: __________________________________ /s/ Mrs. Everett C. Gilbertson __________________________________________ Mrs. Everett C. Gilbertson, Sui Juris Citizen of Minnesota state (expressly not a citizen of the United States) All Rights Reserved without Prejudice Motion for Release Pending Appeal: Page 6 of 6 # # #
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U.S.A. v. Gilbertson, District Court