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