Allocution at Sentencing Hearing
Scheduled for April 21, 1997
U.S.A. v. Gilbertson
United States District Court
District of Minnesota
Fourth Division
Case Number #CR-4-96-65
Allocution at Sentencing Hearing:
Page 1 of 7
Allocution at Sentencing Hearing
Beginning
For the record, Mr. Rosenbaum, I am entering this Court
expressly under protest, primarily due to a demonstrated lack of
jurisdiction by the United States District Court ("USDC").
I also want the official record to show that Mr. Rosenbaum
now has an adverse interest in this case, due to the First and
Tenth Amendment petition which I have now served upon Mr.
Rosenbaum and filed in the District Court of the United States.
See 28 U.S.C. 455.
To put it simply, Mr. Rosenbaum is no longer a neutral
referee in a boxing match. He now wears boxing gloves in this
contest, and a different neutral referee must be appointed.
Until that happens, the United States federal government is
depriving Me of My fundamental Right to due process of law, which
is a criminal violation of 18 U.S.C. 242 and probably also 241,
conspiracy to violate fundamental Rights.
Furthermore, any appearance which I might give of "moving"
this Court for any specific relief, and/or of "requesting" any
specific relief, must be construed as a formal notice and demand
upon all government actors associated with this case, whether
present or not, in light of the proven lack of jurisdiction.
My presence here will not be construed as a waiver of
jurisdictional defects which are now plainly evident in the
official record. Defects in jurisdiction cannot be waived, ever,
because they can only be corrected by Acts of Congress, pursuant
to the Constitution for the United States of America, as lawfully
amended.
Allocution
All statements made by Me during this proceeding are being
made under protest and under My Right of Allocution. This Right
is protected by the Petition Clause of the First Amendment. I
demand that all statements, made by Me here today, be entered
into the record.
Rule 32(a)(1) of the Federal Rules of Criminal Procedure
states that the court must afford counsel for the defendant an
opportunity to comment.
However, Mr. Scott is presently working for the United
States, quite literally, and not for Me. Therefore, he has an
irreconcilable conflict of interest, not unlike that of Mr.
Rosenbaum.
Therefore, I am being denied effective assistance of Counsel
and the fundamental Rights guaranteed by the Sixth Amendment.
Allocution at Sentencing Hearing:
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Based on the following facts, even if this Court had
jurisdiction at some time or other, and I have proven that it
does not have jurisdiction due to an unconstitutional Jury
Selection and Service Act ("JSSA"), it ousted itself of
jurisdiction in any event when:
1. Counsel failed to furnish Me with credentials when they
were properly and timely requested by a Freedom of
Information Act request for same.
2. The recent pleading entered by Mr. Scott -- Position of
the Parties -- deprived Me of effective assistance of
Counsel, because Mr. Scott made an unauthorized
admission that betrayed Me without My permission.
3. I was denied the Right to bring in whomever I chose to
be My Counsel.
Mr. Scott knew, or should have known, that effective
assistance of Counsel is a constitutional guarantee. When I
commenced to file pleadings In Propria Persona, he should have
known, at least from that point forward, that he had absolutely
no power of attorney whatsoever to file pleadings under his
signature, without My prior written authorization.
As an officer of this Court, Mr. Scott's action in filing
that unauthorized pleading was a breach of ethics and the canons
of judicial conduct, and a clear violation of the law, because
the record still fails to exhibit any liability statutes which
applied to Me during the periods in question.
Accordingly, the Supreme Court of the United States has
ruled that, if effective assistance of Counsel is not provided,
this Court ousts itself of jurisdiction. See Johnson v. Zerbst,
304 U.S. 458 at 468. I cannot be punished for relying upon the
decisions of the Supreme Court. See U.S. v. Mason, 412 U.S. 391,
399-400 (1973).
Therefore, I demand a dismissal of this case, with
prejudice, for violating the clear holding of the Supreme Court
of the United States in Johnson v. Zerbst supra.
Nor can this Court attempt to "deny" any of the demands I do
make here today, because demands are not motions, and demands go
to fundamental Rights. Any attempt to "deny" any demand I make
here today is practicing law, which is a high misdemeanor in
violation of 28 U.S.C. 454.
Criminal conduct by the presiding judge is yet another
ground for dismissal, whether felony or misdemeanor.
Allocution at Sentencing Hearing:
Page 3 of 7
Credentials
Of all the FOIA requests which I have submitted to date, not
one was ever answered with certified copies of the requisite
credentials of the government employees in question, or of other
crucial documents requested, such as the regulations which have
been published in the Federal Register, if any, for pertinent
statutes as those statutes have been applied, under color of law,
in the instant case.
Even though I recognize that Congress has extended a blanket
FOIA exemption to the entire judicial branch, I have properly
challenged the constitutionality of this blanket exemption, for
violating the Oath of Office provision in the U.S. Constitution.
Moreover, in addition to proper FOIA requests, I have also
submitted a timely Notice and Demand to Mr. Rosenbaum, to the
Clerk of Court, and to the Administrative Office of the United
States Courts, for the same credentials. To date, no judicial
credentials have been produced either.
Accordingly, I am entitled by Right to proceed on the basis
of the conclusive presumption that the requisite credentials do
not exist, pursuant to the doctrine of estoppel by acquiescence.
See "acquiescence" and "estoppel" in Black's Law Dictionary.
Silence activates estoppel, pursuant to Carmine v. Bowen, 64 A.
932 (1906).
Likewise, silence in this matter is a fraud upon Me,
pursuant to the case of U.S. v. Tweel, 550 F.2d 297, 299 (1977).
Fraud is a cause of action for recovery of actual, compensatory,
and exemplary damages, issued by a competent and qualified jury
of My peers, namely, Citizens of Minnesota state who are not also
citizens of the United States.
Lack of Jurisdiction
I have systematically tried to obtain from the United
States, proof that the Plaintiffs of record have standing to sue,
and they have failed to produce any proof of same. This alone is
a ground to dismiss this case, with prejudice.
I have systematically tried to obtain from the United
States, proof that the Office of the United States Attorney has
power of attorney to represent the Plaintiffs of record, and they
have failed to produce any proof of same. This alone is a ground
to dismiss this case, with prejudice.
I have systematically tried to obtain from the United
States, proof that this USDC has original jurisdiction to
prosecute alleged criminal violations of Title 18, United States
Code, and of the Internal Revenue Code, and they have failed to
produce any proof of same. This alone is a ground to dismiss
this case, with prejudice.
I have testified to the absence of these crucial
authorities, in My Affidavit of Default and of Probable Cause,
and the United States is now estopped from producing said
authorities, even if they do exist, because their window of
opportunity passed, and their silence activates estoppel, and it
also constitutes a fraud upon Me. See Tweel and Carmine supra.
Allocution at Sentencing Hearing:
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Proceeding as they have without jurisdiction gives Me
verified, probable cause to complain and to charge all government
actors associated with this case, whether present or not, with
barratry and other applicable criminal violations of the laws of
Minnesota state, specifically because these actors have not
proven, as a matter of record, that they are, indeed, federal
employees. See 18 U.S.C. 241, to wit:
"If two or more persons go in disguise on the highway, or on
the premises of another, with intent to prevent or hinder
his free exercise or enjoyment of any right or privilege
secured to him by the Constitution or laws of the United
States ... they shall be fined under this title or
imprisoned not more than ten years or both ...."
See also Title 18, United States Code, section 242 in chief.
I submit to you that the demonstrated failure of these
government actors to present certified evidence of their
credentials, gives Me probable cause to proceed on the basis of
the conclusive presumption that they do not have the requisite
authorities and, therefore, I have probable cause to charge each
and every one of them with violating 18 U.S.C. 241 and 242.
Last but not least, the doctrines of absolute and qualified
immunity only apply when these government actors proceed
according to law. If this Court lacks original jurisdiction over
the subject matter in the first instance, which has now been
established beyond any shadow of a doubt, then such a defect
cannot be waived by anything which any of the interested parties
might do, or not do; and the actors in question are prevented,
by law, from invoking immunity for their defense. They are,
therefore, jointly and severally liable to Me for multiple
violations of Title 18, and also pertinent state laws which
remain unspecified at the present time.
See Rankin v. Howard, 633 F.2d 844 (9th Cir. 1980). In the
absence of all jurisdiction, the second prong essential to
absolute judicial immunity is missing. See Stump v. Sparkman,
435 U.S. 349; Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646
(1872); Davis v. Burris, 51 Ariz. 220, 75 P.2d 689 (1938);
Gregory v. Thompson, 500 F.2d 59 (C.A. Ariz. 1974). Numerous
other authorities can be provided to the government actors in
this case.
Liability Statutes
The record shows absolutely no evidence that I am a
withholding agent, as that term is defined at IRC 7701(a)(16).
Aside from the sections listed in this definition, the IRC
has no other liability statutes for the income taxes imposed by
subtitle A, in contrast to IRC sections 4401, 5005, and 5703,
which do contain explicit liability provisions with respect to
other taxes, for example, petroleum refiners and alcohol
distillers.
No lawful assessment was ever made pursuant to IRC section
6203, delegation of authority to assess.
Allocution at Sentencing Hearing:
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Jury Selection and Service Act
I have already explained to this Court, in a filed pleading,
that My first Motion to Stay Proceedings was based on incorrect
information, due to errors committed by the paralegals I hired to
assist Me.
I have attempted to remedy these errors by re-filing the
corrected pleadings, and by combining them with a proper Motion
(read "Demand") for Reconsideration.
I am entitled to a hearing, to reconsider My pivotal
challenge to the constitutionality of the JSSA, for exhibiting
class discrimination against Citizens of Minnesota state who are
not also citizens of the United States, by Right of Election
guaranteed by the Tenth Amendment. See Gardina v. Board of
Registrars, 160 Ala. 155, 48 S. 788, 791 (1909) in particular.
Moreover, I demand that this Court prepare proper and timely
Findings of Fact and Conclusions of Law in the matter of My
challenge to the JSSA, by way of perfecting the case file for the
appeal which I plan, and fully intend, to bring in the instant
case, on final judgment or upon leave to appeal interlocutory
order(s).
Withdrawal of Plea
I hereby demand that the plea of "not guilty" be withdrawn
in this case, because it was entered out of order and over My
objections when Mr. Noel entered that plea for Me in a rude and
disorderly fashion, while I was speaking.
Notice of Appeal
I hereby request that this Court immediately certify this
case for appeal, pursuant to the Final Judgments Act, and
instruct the Clerk of Court to prepare and file a proper Notice
of Appeal, pursuant to Rule 32(c)(5) of the Federal Rules of
Criminal Procedure, because I do intend to bring all major and
minor issues before the United States Court of Appeals for the
Eighth Circuit, in due time, and according to due process of law.
Clarification of Terms
My use of the phrase "Under Protest" during this proceeding
indicates that I have explicitly reserved all of My Rights and:
(1) that I explicitly reject any and all benefits of the
Uniform Commercial Code, absent a valid commercial agreement
which is in force and to which I am a party, and cite its
provisions herein only to serve notice upon ALL agencies of
government, whether international, national, state, or local,
that they, and not I, are subject to, and bound by, all of its
provisions, whether cited herein or not;
Allocution at Sentencing Hearing:
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(2) that My explicit reservation of Rights has served notice
upon ALL agencies of government of the "Remedy" they must provide
for Me under Article 1, Section 207, of the Uniform Commercial
Code, whereby I have explicitly reserved My Common Law Right not
to be compelled to perform under any contract or commercial
agreement, that I have not entered into knowingly, voluntarily,
and intentionally;
(3) that My explicit reservation of Rights has served notice
upon ALL agencies of government that they are ALL limited to
proceeding against Me only in harmony with the Common Law and
that I do not, and will not accept the liability associated with
the "compelled" benefit of any unrevealed commercial agreements;
and,
(4) that My valid reservation of Rights has preserved all My
Rights and prevented the loss of any such Rights by application
of the concepts of waiver or estoppel.
Thank you for your consideration.
Dated: ______________________________________
Respectfully submitted,
/s/ Everett C. Gilbertson
______________________________________________
Everett C. Gilbertson, Sui Juris
Citizen of Minnesota state and federal witness
(expressly not a citizen of the United States)
All Rights Reserved without Prejudice
Allocution at Sentencing Hearing:
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U.S.A. v. Gilbertson, District Court