Vazrik A. Makarian, Sui Juris
c/o Forwarding Agent
8617 Raindrop Canyon Avenue
Las Vegas 89129
NEVADA, USA
All Rights Reserved
Without Prejudice
UNITED STATES COURT OF APPEALS
NINTH CIRCUIT
UNITED STATES OF AMERICA, ) Case No. 01-50422
)
Plaintiffs/Appellees, ) NOTICE OF CHALLENGE
) TO THE CONSTITUTIONALITY
v ) OF AN ACT OF CONGRESS AND
) REQUEST FOR APPROPRIATE
VAZRIK A. MAKARIAN, ) PROCEDURAL RELIEF:
)
Defendant/Appellant. ) Petition Clause;
) International Covenant on
) Civil and Political Rights;
_________________________________) FRAP Rule 44
COMES NOW Vazrik A. Makarian, Citizen of Nevada State and alleged Defendant in the above entitled matter (hereinafter “Appellant”), to question the constitutionality of the Act of June 25, 1948, 62 Stat. 869, and to provide timely written notice of same to the Circuit Clerk, pursuant to Rule 44 of the Federal Rules of Appellate Procedure (“FRAP”).
Appellant also respectfully requests specific and appropriate procedural relief, as a direct consequence of the NOTICE and discussion provided herein.
PROCEDURAL
SETTING
On September 14, 2001 A.D., this Court issued a routine procedural ORDER in the instant case; the pertinent paragraphs follow:
Within 21 days after entry of this order, appellant shall move for voluntary dismissal of the appeal or show cause why it should not be dismissed for lack of jurisdiction.
If appellant elects to show cause, appellee may respond within 10 days after service of appellant’s memorandum.
If appellant does not comply with this order, the Court will consider appellant’s motion for permission to appeal an interlocutory order.
Appellant understands this ORDER to provide 3 broad options:
(1) move for voluntary dismissal;
(2) show cause, in a memorandum, why the instant appeal should not be dismissed for lack of jurisdiction; and,
(3) do neither, in which case this Court will consider Appellant’s motion for permission to appeal an interlocutory order.
If Appellant’s understanding is incorrect in any way, this Court is respectfully requested to provide immediate clarification, to prevent Appellant from going too far in the wrong direction.
OPTION
1:
VOLUNTARY
DISMISSAL
Voluntary dismissal is governed by FRAP Rule 42(b). The pertinent part reads:
An appeal may be dismissed on the appellant’s motion on terms agreed to by the parties or fixed by the court.
For all the reasons stated below, Appellant in good faith and realistically does not expect that all proper Parties can or will agree to terms of voluntary dismissal, particularly in light of the problems that Appellant has now discovered, and confirmed, in the Act of June 25, 1948 supra.
Option
2:
Show
Cause Why Instant Appeal
Should
Not be Dismissed for
Lack of Appellate
Jurisdiction
The pertinent law governing appellate jurisdiction of interlocutory decisions is 28 U.S.C. 1292(a)(1):
Except as provided by subsections (c) and (d) of this section, the courts of appeals shall have jurisdiction of appeals from:
(1) interlocutory orders of the district courts of the United States .... [bold emphasis added]
Although Appellant was initially prepared to submit a memorandum detailing several reasons why the instant appeal should not be dismissed for lack of appellate jurisdiction, newly found evidence has given Appellant dramatic pause for reconsidering this original intent.
On the one hand, the matter of jurisdiction can be raised at any time, and this Court has demonstrated a remarkable body of case law on the question of jurisdiction. In fact, it has been said that the Ninth Circuit has issued more decisions on federal jurisdiction than all the other circuits combined. Appellant offers to prove, on terms fixed by this Court, that certain district court orders -- denying motions to dismiss -- should be reviewed here, before trial and final judgment are reached.
On the other hand, Appellant now calls into question the constitutionality of the Act of June 25, 1948. The discussion which follows below may well prove that this Court does not have appellate jurisdiction of the USDC’s interlocutory decision. In that event, it would be improper, and possibly even disingenuous, for Appellant to submit a memorandum detailing all the reasons why the instant appeal should not be dismissed for lack of jurisdiction.
Option
3: Do Neither, and
This
Court Will Consider Appellant’s Motion
for Permission to Appeal Interlocutory Order
Appellant understands Option 3 to provide an opportunity for Appellant to choose neither Option 1 nor Option 2, without prejudice to any of His substantive and procedural rights. For example, Appellant is not risking contempt by opting against Options 1 and 2. By doing so, it is clear from this Court’s ORDER of September 14 that Appellant is, in effect, consenting to litigate His MOTION FOR PERMISSION TO APPEAL INTERLOCUTORY ORDER.
In light of what follows, Option 3 is clearly preferred, provided that Appellant will be permitted to litigate His challenge to the constitutionality of the Act of June 25, 1948. Once the pertinent laws have been properly and fully elucidated, Appellant expects that appropriate remedies will be succinctly clarified, if not also compelling.
After appropriate appellate review of the jurisdictional issues raised herein, and in subsequent briefs, published findings of fact and conclusions of law should enumerate the exact reasons why this Court is not authorized by 28 U.S.C. 1292(a)(1) to entertain appellate review of interlocutory orders of the United States District Courts (“USDC”).
Jurisdiction may be challenged at any stage of a proceeding. U.S. v. Anderson, 60 F.Supp. 649 (DCUS Wash. 1945). Jurisdiction is never presumed, must always be proven, and cannot be waived by a defendant. U.S. v. Rogers, 23 F. 658 (DCUS Ark. 1885).
Issue
Number One:
The
“United States of America”
and the “United States”
Are Not
One and the Same
This Court will please confirm that the term “United States of America” is a term of art with a meaning that has been fixed by two centuries of American history. It appears in the Preamble; in Article II, Section 1, Clause 1 (“2:1:1”); and in Article VII, of the Constitution for the United States of America, as lawfully amended (hereinafter “U.S. Constitution”). That term means and includes the 50 States which are united by, and under, the U.S. Constitution; it can not and does not mean anything else.
Moreover, in a standing decision of the U.S. Supreme Court, Congress was told, in no uncertain terms, that it cannot re-define any terms found in the U.S. Constitution. This is so because “Congress ... cannot by legislation alter the Constitution, from which alone it derives its power to legislate, and within whose limitations alone that power can be lawfully exercised.” Eisner v. Macomber, 252 U.S. 189 (1920); see also Hooven & Allison v. Evatt, 324 U.S. 652 (1945) (“United States” has 3 meanings.)
Appellant submits that this prohibition (hereinafter the “Eisner Prohibition”) is controlling in the instant appeal.
As a general rule, in the U.S. Constitution the term “United States” refers most often to the federal government and not to the 50 States. See the Guarantee Clause, for an excellent example which clearly distinguishes the “United States” (federal government) from the 50 States (also known as the several States).
Another place where this distinction is emphatically made is in the federal statute at 28 U.S.C. 1746 (Unsworn declarations under penalty of perjury). The term “United States of America” is conspicuously absent from all pertinent federal statutes.
The Qualifications Clauses are an exception to this general rule: the term “United States” in these Clauses means “States United”. People v. De La Guerra, 40 Cal. 311, 377 (1870). Those who are qualified to make federal laws, and to serve in the Office of President, must be Citizens of ONE OF the United States of America. See 7 Words and Phrases 281 (1952); and Pannill v. Roanoke, 252 F. 910, 914, for a case that is definitive and dispositive on this point (federal citizens were not even contemplated when Article III was being drafted).
Setting aside these important and well documented exceptions, the “United States” must have the meaning assigned to this term in Article II of the Articles of Confederation: “... the United States, in Congress Assembled.” It is a singular noun which refers to the federal government. The term “United States of America” is a plural noun which refers to the 50 States.
For this reason alone, this Court’s ORDER of September 14 made a subtle typographical error by referring to the “United States of America” as the “appellee” (a singular noun), when it would be grammatically proper to refer to the United States of America as the Appellees (a plural noun).
This Court will please take notice of the fact that Appellant correctly refers to the United States of America as the Appellees [sic] in His MOTION FOR PERMISSION TO APPEAL INTERLOCUTORY ORDER, and also in His MOTION TO STAY EXECUTION OF ARREST WARRANT, both previously filed in the instant appeal.
Issue
Number Two:
When
the “United States” is a Plaintiff,
A Constitutional
Court is Required
Plaintiff argues, and is prepared to present a comprehensive proof, that the “United States” can only prosecute a criminal case against a Citizen of ONE OF the United States of America in a constitutional court convened under Article III of the U.S. Constitution –- read “judicial mode”.
That constitutional court, for more than two centuries, has been the district court of the United States (“DCUS”).
The United States District Court (“USDC”), on the other hand, is a legislative court created under Article I and convened under Article IV of the U.S. Constitution –- read “legislative mode”.
In the latter mode, the USDC has no criminal jurisdiction whatsoever. When the “United States of America” are Plaintiffs in the USDC, that court is proceeding in legislative mode.
When the “United States” is Plaintiff in the DCUS, that court is proceeding in judicial mode.
The “United States” cannot convene the USDC in judicial mode, because the USDC is a legislative court which can only operate in legislative mode, and which cannot operate in judicial mode.
Thus, the conclusion is unavoidable that federal government employees now claim to represent the “United States of America” in order to invoke legislative mode in the USDC, and in order to avoid judicial mode in a constitutional court.
Appellant’s earnest search for the truth resulted in requiring Him to wade through a difficult series of court cases that are decidedly confusing, contradictory and controversial. To illustrate the controversy now before us, in Northern Pipeline Company v. Marathon Pipe Line Company, 458 U.S. 50 (1982), as recently as 1982 A.D. the high Court’s dissenters in that decision wrote as follows:
... [T]he plurality must go on to deal with what has been characterized as one of the most confusing and controversial areas of constitutional law. [458 U.S. 50, 93]
The concept of a legislative, or Art. I, court was introduced by an opinion authored by Chief Justice Marshall. Not only did he create the concept but at the same time he started the theoretical controversy that has ever since surrounded the concept .... [458 U.S. 50, 105]
[bold emphasis added]
In a concurring opinion, Justice Rehnquist echoed similar sentiments, as follows:
... [I]n an area of constitutional law such as that of “Art. III Courts,” with its frequently arcane distinctions and confusing precedents .... [458 U.S. 50, 90]
The cases dealing with the authority of Congress to create courts other than by use of its power under Art. III do not admit of easy synthesis. [458 U.S. 50, 91]
[bold emphasis added]
It is utterly amazing to Appellant that the high Court has been unable to settle this controversy, particularly when so many years have passed since the controversy first erupted in 1828. See American Insurance v. 356 Bales of Cotton, 1 Pet. 511, 7 L.Ed. 242 (1828) (C.J. Marshall’s seminal ruling, still standing); and Balzac v. Porto Rico, 258 U.S. 298, 312 (1922) (The USDC is not a true United States court established under Article III.)
Appellant’s breakthrough came in the course of receiving insights into the enormous and far-reaching implications of Williams v. United States, 289 U.S. 553 (1933). Without belaboring here the essential logic of that decision, it is obvious to Appellant that the following conclusion must be drawn from the holding in Williams:
The “United States” has
standing to prosecute a criminal case against a Citizen of ONE OF the 50 States
only when it proceeds in a constitutional court convened in judicial
mode under Article III of the U.S. Constitution.
The U.S. Constitution provides the primary support for this conclusion: “The judicial Power shall extend ... to Controversies to which the United States shall be a Party.” See 3:2:1.
Further support for this conclusion can be found in the Miscellaneous Provisions of the Act of June 25, 1948. At Section 17 in those Miscellaneous Provisions, the Act approved February 11, 1903, was amended to read as follows:
“Sec. 2. In every civil action brought in any district court of the United States under any of said Acts, wherein the United States is complainant, an appeal from the final judgment of the district court will lie only in the Supreme Court.” [bold emphasis added]
Clearly, this statute recognizes that the “United States” is authorized to proceed as a Plaintiff in the district court of the United States –- a constitutional court.
Academic scholars have come to the very same conclusion. In the Harvard Law Review, author Henry M. Hart posed the following “dialectic”:
Q: Does the Constitution give people any right to proceed or be proceeded against, in the first instance, in an inferior federal constitutional court rather than a federal legislative court?
A: As to criminal defendants charged with offenses committed in one of the states, surely.
[“The Power of Congress to Limit the Jurisdiction]
[of Federal Courts: An Exercise in Dialectic,”]
[Henry M. Hart, Jr., 66 Harvard Law Review 1365 (1953)]
And, in the Encyclopedia of the American Constitution, UCLA Law Professor Emeritus Kenneth L. Karst writes:
In essence a legislative court is merely an administrative agency with an elegant name. While Congress surely has the power to transfer portions of the business of the federal judiciary to legislative courts, a wholesale transfer of that business would work a fundamental change in the status of our independent judiciary and would seem vulnerable to constitutional attack.
[Encyclopedia of the American Constitution]
[New York, MacMillan Publishing Co. (1986)]
[volume 3, page 1144]
It necessarily follows, therefore, that the federal government is attempting to proceed on the basis of several rebuttable assumptions, each of which is demonstrably false, to wit:
1. that the United States of America have standing to sue (when no federal statute grants them standing as such). Compare 28 U.S.C. §§ 1345, 1346.
2. that the U.S. Department of Justice and the Offices of the U.S. Attorney have powers of attorney to represent the United States of America (when they do not). See 28 U.S.C. §§ 530B (remedy for willful misrepresentation), and 547.
3. that the United States District Courts have criminal jurisdiction (when they do not). Compare 18 U.S.C. 3231 (which clearly vests criminal jurisdiction in the DCUS).
4. that the United States District Courts (“USDC”) can proceed in judicial mode when the United States of America are Party Plaintiffs (when the USDC are incapable of receiving or exercising the judicial Power of the United States in the first instance).
Issue
Number Three:
The
Act of June 25, 1948, 62 Stat. 869,
Is Vague and
Therefore Unconstitutional
Appellant trembles at the mere thought of challenging a comprehensive revision, codification, and enactment of all laws which have governed the conduct of the federal courts in this great nation for 53 years. However, a careful review of the relevant evidence, as found in various sections of Title 28, U.S.C., has rendered that challenge necessary and inevitable. This Court will please afford Appellant, proceeding In Propria Persona, the latitude mandated by Haines v. Kerner, 404 U.S. 519, 520 (1972).
It is evident to Appellant, and Appellant hereby offers to prove: that the district courts of the United States (“DCUS”) were never expressly abolished by Congress; that Congress knows how to abolish courts when it intends to do so; and, that the Act of June 25, 1948, attempted fraudulently to conceal the Article III district courts of the United States, and to create the false impressions that they had been re‑defined as, replaced by, and/or rendered synonymous with, the United States District Courts. See 28 U.S.C. §§ 132, 451, 610. It is a cardinal rule of statutory construction that repeals by implication are decidedly not favored. U.S. v. United Continental Tuna, 425 U.S. 164, 168 (1976); U.S. v. Hicks (9th Cir. 1991).
As of this writing, Appellant’s Counsels are assembling an exhaustive list of all statutes in Title 28 which expressly mention either the USDC, the DCUS, or both. Appellant is advised that the results of this research will be published on the Internet forthwith.
In any Act of Congress, words importing the plural include the singular, and words importing the singular include and apply to several persons, parties, or things. 1 U.S.C. 1. Therefore, the rules of statutory construction strictly bar intermingling of “United States District Courts” with “district courts of the United States”.
On the other hand, the term “district courts” does embrace both the DCUS and the USDC, since there appears to be a hierarchical relationship between this term and the courts constituted by Chapter 5 of Title 28. See 28 U.S.C. 451.
Without enumerating all other essential steps in Appellant’s proof here, this Court is respectfully requested to recognize, and take formal judicial notice, that the ex post facto restriction in the U.S. Constitution (“1:9:3”) emphatically bars Congress from retroactively re-defining the meaning of “district court of the United States” as that term was used in all federal legislation prior to June 25, 1948 A.D. See, for example, the Sherman Antitrust Act, and the Securities and Exchange Act. Appellant’s Immunity from ex post facto legislation is a fundamental Right. See Privileges and Immunities Clause (“4:2:1”).
Moreover, in the opinions of recognized constitutional scholars, such as Justice Story, the Congress has affirmative obligations to create and to maintain constitutional district courts, proceeding in judicial mode. The reason for this is simple, if not immediately obvious:
The original jurisdiction of the U.S. Supreme Court is quite limited under Article III, as compared to its appellate jurisdiction under Article III. The Supreme Court’s appellate jurisdiction under Article III embraces matters that arise under the Supremacy Clause (Constitution, Laws and Treaties of the United States). See Arising Under Clause at Article III, Section 2, Clause 1 (“3:2:1”), and 28 U.S.C. 1331 (Federal question).
Cases that arise under the Supremacy Clause, as mirrored by 3:2:1 and 28 U.S.C. 1331, would need to originate first in an inferior constitutional court, before those cases could ever reach the U.S. Supreme Court on appeal. The exact same argument can be extended to this Court’s appellate jurisdiction: specifically, a criminal prosecution against a Citizen of ONE OF the United States of America must first originate in an inferior constitutional court, before such a case could ever reach the Ninth Circuit on appeal!
The conclusion is inescapable, therefore, that Congress must first create constitutional courts proceeding in judicial mode, and then it must also perpetuate them, in order to satisfy the Fifth Amendment. To do otherwise would constitute a clear violation of the Fifth Amendment, which mandates due process of law (among other things).
This mandate is also embodied in numerous provisions of the International Covenant on Civil and Political Rights, a United States treaty rendered supreme Law by the Supremacy Clause. See Article 14 in that Covenant, for example.
The entire thrust of that Covenant is to guarantee independent, impartial and qualified judicial officers presiding upon courts of competent jurisdiction (and not Star Chambers or other tribunals where summary proceedings are the norm, and where due process is not a fundamental Right but a privilege granted at the discretion of those tribunals).
Appellant therefore enjoys a fundamental Immunity from summary criminal proceedings.
In pari materia, compare the language in Rules 201(c) and 201(d) of the Federal Rules of Evidence: the former is discretionary (“may”); the latter is mandatory (“shall”).
Confer at “Fundamental right” in Black’s Law Dictionary, Sixth Edition. (Appellant is protesting the Seventh Edition of Black’s, because it has conspicuously omitted any definition of the term “United States” –- a term which figures prominently throughout federal laws and throughout the U.S. Constitution!)
The district courts of the United States (“DCUS”) are constitutional courts vested by law with competent jurisdiction to entertain criminal prosecutions of Citizens of ONE OF the United States of America. See 18 U.S.C. 3231. Statutes granting original jurisdiction to federal district courts must be strictly construed [numerous cites omitted here].
The United States District Courts (“USDC”) are not constitutional courts vested by law with competent jurisdiction to entertain criminal prosecutions of those Citizens. Confer at “Inclusio unius est exclusio alterius” in Black’s Sixth Edition.
To the extent that the Act of
June 25, 1948, was written and enacted to justify or otherwise foster the
assumption that the United States of America have standing to institute
criminal proceedings in United States District Courts –- courts that were broadcasted
from the federal Territories into the several (48) States on June 25, 1948 A.D.
-- that Act is demonstrably unconstitutional for exhibiting vagueness on this
obviously important point.
The 50 States of the Union are not “United States Districts”; they are judicial districts! Federal municipal law does not operate, of its own force, inside those judicial districts. Even though the District of Columbia and Puerto Rico are likewise judicial districts, federal municipal law can operate there because neither is a Union State. 28 U.S.C. §§ 88, 119.
Nevertheless, federal municipal law is likewise bound by all restrictions in the U.S. Constitution, because the U.S. Constitution was expressly extended into D.C. in 1871, and into all federal Territories in 1873. See 16 Stat. 419, 426, Sec. 34; 18 Stat. 325, 333, Sec. 1891, respectively.
Appellant alleges that the nomenclature “United States District”, as found on the caption pages of all federal court pleadings, is now being used to trigger legislative mode without adequate notice to criminal defendants, in violation of the Fifth and Sixth Amendments. This dubious mechanism is called “silent judicial notice” [sic] -- surely a misnomer, if ever there was one. It would be entirely more accurate to call it “silent legislative notice”, since the practice is now rampant within legislative courts, and the DCUS are currently vacant.
But, has Congress been silent, or merely vague?
Vagueness, once fully documented wherever it occurs, will be shown to conflict directly with the stated legislative intent of the Act of June 25, 1948, to wit: “The provisions of title 28, Judiciary and Judicial Procedure, of the United States Code, set out in section 1 of this Act, ... shall be construed as continuations of existing law ....” Moreover, “No loss of rights, interruption of jurisdiction, or prejudice to matters pending in any of such courts on the effective date of this Act shall result from its enactment.” [bold emphasis added] See Miscellaneous Provisions, Act of June 25, 1948, C. 646, sections 2 to 39, 62 Stat. 985 to 991, as amended.
In good faith, Appellant constructs these Miscellaneous Provisions to read: “No loss of Rights and no interruption of jurisdiction shall result from its enactment.” If Congress had intended to abolish the DCUS, they would (and should) have said so. The period between 1789 A.D. and 1948 A.D. spans 159 years of judicial history! Hiding a herd of elephants under a rug would be easier than hiding the DCUS under a pretense. To reiterate an all important point: throughout America, repeals by implication (or magic carpets) are decidedly not favored. See United Continental Tuna and Hicks supra.
The law of jurisdiction is fundamental law, not allowing dubious intrusions of any kind.
RELIEF SOUGHT
All premises having been duly considered, Appellant respectfully requests that this honorable Court now proceed to a proper consideration of His MOTION FOR PERMISSION TO APPEAL INTERLOCUTORY ORDER.
Appellant also requests that this Court lift the stays on briefing, and on the briefing schedule, respectively, so as to afford Appellant ample opportunity to prepare a proper, timely and complete OPENING BRIEF on all the issues discussed above.
In particular, Appellant seeks a published opinion affirming:
(1) that this United States Court of Appeals is authorized by 28 U.S.C. 1292(a)(1) to entertain appellate review of interlocutory orders issued by district courts of the United States within the Ninth Circuit; and,
(2) that this United States Court of Appeals is not authorized by 28 U.S.C. 1292(a)(1) to entertain appellate review of interlocutory orders issued by United States District Courts within the Ninth Circuit.
Lastly, Appellant respectfully requests all other relief which this honorable Court deems just and proper, under the circumstances.
VERIFICATION
I, Vazrik A. Makarian, hereby verify, under penalty of perjury, under the laws of the United States of America, without the “United States” (federal government), that the above statement of facts and laws is true and correct, according to the best of My current information, knowledge, and belief, so help me God, pursuant to 28 U.S.C. 1746(1) supra. See Supremacy Clause.
Dated: September 20, 2001 A.D.
Signed: /s/ Vazrik A. Makarian
______________________________________________
Printed: Vazrik A. Makarian
I, Alan Wu, Sui Juris, hereby certify, under penalty of perjury, under the laws of the United States of America, without the “United States” (federal government), 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 CHALLENGE TO THE CONSTITUTIONALITY
OF
AN ACT OF CONGRESS AND
REQUEST
FOR APPROPRIATE PROCEDURAL RELIEF:
Petition Clause;
International Covenant on Civil and Political Rights;
FRAP Rule 44
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:
United States Attorney Clerk of Court
Attention: Miriam A. Krinsky Attention: Kathy A. Catterson
United States Courthouse United States Court of Appeals
312 North Spring Street P.O. Box 193939
Los Angeles 90012 San Francisco 94119-3939
CALIFORNIA, USA CALIFORNIA, USA
Hon. John Ashcroft Office of the Solicitor General
Attorney General U.S. Department of Justice
U.S. Department of Justice 950 Pennsylvania Avenue, N.W.
10th and Constitution, N.W. Room 5614
Washington 20530 Washington 20530-0001
DISTRICT OF COLUMBIA, USA DISTRICT OF COLUMBIA, USA
Courtesy copies:
Hon.
George W. Bush
President of the United States of America (2:1:1)
The White House
1600 Pennsylvania Avenue
Washington 20500
DISTRICT OF COLUMBIA, USA
Lonnie G. Schmidt Prof. Emeritus Kenneth L. Karst
Private Attorney General UCLA School of Law
11230 Gold Express Dr., #310-188 P.O. Box 951476
Gold River 95670 Los Angeles 90095-1476
CALIFORNIA, USA CALIFORNIA, USA
Dated: September 21, 2001 A.D.
Signed: /s/ Alan Wu
______________________________________________
Printed: Alan Wu, Sui Juris
