Dr. Eugene Arthur, Burns, Sui Juris
Citizen of Arizona state
c/o 4500 East Speedway, Suite 27
Tucson [zip code exempt]
ARIZONA STATE
In Propria Persona
Under Protest and by Special Visitation
with explicit reservation of all rights
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE GRAND JURY SUBPOENA )
SERVED ON )
NEW LIFE HEALTH CENTER COMPANY )
)
________________________________)
)
UNITED STATES OF AMERICA, ) No. 96-16145
)
Plaintiff/Appellee, ) DC# GJ-95-1-6-JMR
) Arizona (Tucson)
vs. )
) PETITION FOR REHEARING
Eugene Arthur, Burns, Sui Juris ) EN BANC
)
Defendant/Appellant. )
________________________________)
PURPOSE OF PETITION
COMES NOW Dr. Eugene Arthur, Burns, Sui Juris, Citizen of Arizona
state (hereinafter "Petitioner") and Managing Director of New
Life Health Center Company, an Unincorporated Business Trust
domiciled in the Arizona Republic (hereinafter the "Trust"), to
petition this honorable Court of Appeals for a rehearing en banc
of His EMERGENCY MOTION UNDER CIRCUIT RULE 27-3 (hereinafter
"EMERGENCY MOTION") previously filed with this Court.
Petition for Rehearing En Banc:
Page 1 of 8
CAUSES FOR REHEARING
Petitioner hereby submits that material facts and laws were
overlooked by the Order of this Court, dated June 28, 1996,
dismissing His appeal for lack of appellate jurisdiction. These
material facts and laws are as follows:
1. Even though the notice of appeal in this action was not
signed by the Appellant or a licensed attorney admitted to
practice before this Court, Petitioner's EMERGENCY MOTION
contained two key paragraphs which amended all prior pleadings,
including the notice of appeal, by means of a nunc pro tunc
declaration made in propria persona. This declaration was made
on page 4, beginning at line 9 in said EMERGENCY MOTION, to wit:
Petitioner also wishes to incorporate by reference all
other pleadings which have already been submitted in the
instant case, and to certify that He personally authorized
all of said pleadings to be submitted by His Counsel of
choice, Paul Andrew, Mitchell, B.A., M.S., on behalf of the
Trust, and of which He is the General Manager.
Petitioner stands by those pleadings as if He
personally executed them Himself proceeding In Propria
Persona and Nunc Pro Tunc from the time and date of their
signing. Those pleadings which could be swiftly copied and
transmitted via fax to the Clerk of the Ninth Circuit Court
of Appeals are attached hereto and also incorporated by
reference as if set forth fully herein.
Counsel has been advised by Mr. Stephen Cassidy that
the rules prohibit the faxing of pleadings in excess of 40
pages. So, Petitioner has dispatched Counsel to hand-carry
the additional pleadings directly to the Clerk of the Ninth
Circuit with all deliberate speed. Counsel expects to
deliver said additional pleadings by noon on Tuesday, June
18, 1996. He is booked on America West flight #2604,
scheduled to leave Tucson, Arizona at 6:30 a.m. and to
arrive in San Francisco, California, at 10:39 a.m., at which
time he will take the first available bus to downtown San
Francisco, and then take a cab directly to the Clerk of the
Ninth Circuit Court, to serve the remaining pleadings upon
the Clerk in support of this EMERGENCY MOTION.
[emphasis added]
Petition for Rehearing En Banc:
Page 2 of 8
Petitioner submits that executing all prior pleadings nunc
pro tunc from the time and date of their signing had the effect
of submitting them with His own signature, proceeding in propria
persona. The authority for His position is found in the
definition of "nunc pro tunc" which is found in Black's Law
Dictionary, Fourth Edition with Guide to Pronunciation:
NUNC PRO TUNC. Lat. Now for then. In re Peter's Estate,
175 Okl. 90, 51 P.2d 272, 274. A phrase applied to acts
allowed to be done after the time when they should be done,
with a retroactive effect, i.e. with the same effect as if
regularly done. Perkins v. Hayward, 132 Ind. 95, 31 N.E.
670; Secou v. Leroux, 1 N.M. 388.
"Nunc pro tunc" entry is an entry made now of something
actually previously done to have effect of former date;
office being not to supply omitted action, but to supply
omission in record of action really had but omitted through
inadvertence or mistake. Mallory v. Ward Baking Co., 270
Mich. 94, 258 N.W. 414; People v. Rosenwald, 266 Ill. 548,
107 N.E. 854, 856, Ann.Cas.1915D, 688; Grizzard v. Fite,
137 Tenn. 103, 191 S.W. 969, 971, L.R.A.1917D, 652.
[emphasis added]
Accordingly, Petitioner submits that the Notice of Appeal in the
instant case was signed by the appellant nunc pro tunc.
2. Petitioner hereby challenges the constitutionality of
the Final Judgments Act, 28 U.S.C. 1291, as applied in the
instant case, because said statute results in imposing the
offense of barratry upon Him, to wit:
BARRATRY. In criminal law. Also spelled "Barretry." The
offense of frequently exciting and stirring up quarrels and
suits, either at law or otherwise. 4 Bla.Com. 134; State
v. Batson, 220 N.C. 411, 17 S.E.2d 511, 512, 513.
Common barratry is the practice of exciting groundless
judicial proceedings. Pen.Code Cal. Sec. 158; Lucas v.
Pico, 55 Cal. 128; Com. v. McCulloch, 15 Mass. 229; Ex
parte McCloskey, 82 Tex.Cr.R. 531, 199 S.W. 1101, 1102.
In maritime law. An act committed by the masters or
mariners of a vessel, for some unlawful or fraudulent
purpose, contrary to their duty to the owners, whereby the
latter sustain injury. It may include negligence, if so
gross as to evidence fraud. Hansen v. Barnard, C.C.A.N.Y.,
270 F. 163, 166.
Some fraudulent act of the master or mariners, tending
to their own benefit, to the prejudice of the owner of the
vessel, without his privity or consent. Kendrick v.
Delafield, 2 Caines N.Y. 67.
A generic term, which includes many acts of various
kinds and degrees. It comprehends any unlawful, fraudulent,
or dishonest act of the master or mariners, and every
violation of duty by them arising from gross and culpable
negligence contrary to their duty to the owner of the
vessel, and which might work loss or injury to him in the
course of the voyage insured. A mutiny of the crew, and
forcible dispossession by them of the master and other
officers from the ship, is a form of barretry. Greene v.
Pacific Mut. Ins. Co., 9 Allen, Mass., 217.
[Black's Law Dictionary, Fourth Edition]
Petition for Rehearing En Banc:
Page 3 of 8
This honorable Court of Appeals appears to have overlooked
more than 15 years of deliberate, criminal harassment which
Petitioner has suffered at the hands of the U.S. Department of
Justice and of the "Internal Revenue Service," which harassment
is amply documented in the affidavits and other pleadings which
He has submitted in support of His appeal and EMERGENCY MOTION.
Petitioner began deep in his own end zone, and struggled against
great odds, across 100 yards, to come within one foot of the goal
line, only to be told that He must go back and litigate further
still, because of some federal statute requiring "final
judgements" [sic]. This is barretry, in Petitioner's opinion.
Petitioner submits that the decisions by John M. Roll to
ignore some twenty-five (25) different pleadings submitted on
behalf of the Trust and the Petitioner, in blatant violation of
the Petition Clause in the First Amendment, amount to "final
judgments" because said decisions deprived Petitioner of due
process of law. Such deprivations are indeed within the
appellate jurisdiction of this honorable Court of Appeals,
whenever and wherever they might occur. See Fifth Amendment.
Petition for Rehearing En Banc:
Page 4 of 8
3. Petitioner hereby asserts His fundamental Right to know
why the Honorable Alex Kozinski's office informed Petitioner's
Counsel that the rules for appealing to specific judges on the
Ninth Circuit had "recently changed." Petitioner's Counsel made
a point of serving all pleadings in the instant case upon Judge
Kozinski, in order to provide him with adequate written notice of
probable mail fraud, jury tampering, and obstruction of justice
by federal officers in the instant case, and informally to
solicit his oversight of these crimes within the executive and
judicial branches of the United States (federal government).
When John M. Roll issued a bench warrant for the arrest of
Petitioner, after receiving notice of appeal in the instant case,
it was Petitioner's position that Roll had lost jurisdiction to
proceed any further, except to disqualify in forma pauperis
status because, in the opinion of the district court, the appeal
was being taken in bad faith. The opportunity for such a finding
was not available to John M. Roll, because Petitioner was not
proceeding in forma pauperis, rendering 28 U.S.C. 1915 irrelevant
to the instant appeal.
Petitioner's Counsel attempted to contact Judge Kozinski
immediately after the bench warrant was issued by John M. Roll,
in order to make a personal appeal to Judge Kozinski to quash or
otherwise vacate the bench warrant, for good causes which were
amply documented in all the prior pleadings which had already
been served upon Judge Kozinski, via first class United States
Mail. See Proofs of Service. Counsel was told that He could not
make such a personal appeal to Judge Kozinski, because the rules
for same had been changed. Counsel was not then, and is not now,
aware that the rules for making personal appeals to specific
Judges on the Ninth Circuit Court of Appeals have changed and,
accordingly, Petitioner asserts his Right to hear from Judge Alex
Kozinski in writing on this point.
Petition for Rehearing En Banc:
Page 5 of 8
4. Petitioner submits that requiring a notice of appeal to
be signed by an "attorney" admitted to practice before this Court
is a violation of the original Thirteenth Amendment, ratified in
the year 1819. Evidence of said amendment, and of its lawful
ratification, were made a permanent part of the record in the
instant case. This Court is under an affirmative obligation to
enforce all provisions of the Constitution for the United States
of America, as lawfully amended, pursuant to Article VI, Clause
3, in said Constitution:
The Senators and Representatives before mentioned, and the
Members of the several State Legislatures, and all executive
and judicial Officers, both of the United States and of the
several States, shall be bound by Oath or Affirmation, to
support this Constitution ....
[U.S. Constitution, Article VI, Clause 3]
[emphasis added]
The Court is directed to examine the English etymology of the
term "attorn" as documented in the COMPANY'S OPPOSITION TO
PLAINTIFF'S MOTION TO STRIKE, DEMAND FOR JURY TRIAL, AND
CHALLENGE TO CONSTITUTIONALITY OF "ILLEGAL TAX PROTESTOR"
CLASSIFICATIONS, previously filed in the instant case.
Petition for Rehearing En Banc:
Page 6 of 8
Petitioner also herein argues that it is quite simply
impossible for any public officials to perform, and it is quite
simply impossible for any Citizens to enforce, a solemn oath to
support the Constitution for the United States of America, as
lawfully amended, if the weight of material evidence should show
that the exact provisions of that Constitution are still in
doubt, for any reason whatsoever.
RELIEF SOUGHT
Wherefore, Petitioner respectfully requests a rehearing en
banc by the Ninth Circuit Court of Appeals and that the relief
sought in His EMERGENCY MOTION UNDER CIRCUIT RULE 27-3 be
granted.
Executed on July 10, 1996
Respectfully submitted,
______________________________________________
Dr. Eugene Arthur, Burns, Sui Juris
Citizen of Arizona state and Managing Director
New Life Health Center Company
An Unincorporated Business Trust
domiciled in the Arizona Republic
Petition for Rehearing En Banc:
Page 7 of 8
PROOF OF SERVICE
I, Paul Andrew, Mitchell, B.A., M.S., 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 and a Citizen of one of the United States of America, and
that I personally served the following document(s):
PETITION FOR REHEARING EN BANC
by placing said document(s) with exhibits in first class United
States Mail, with postage prepaid and properly addressed to:
ROBERT L. MISKELL [sic] John M. Roll [sic]
Acapulco Building, Suite 8310 U.S. District Court
110 South Church Avenue 55 E. Broadway
Tucson, Arizona Tucson, Arizona
JANET NAPOLITANO [sic] Clerk
Acapulco Building, Suite 8310 U.S. District Court
110 South Church Avenue 55 E. Broadway
Tucson, Arizona Tucson, Arizona
Grand Jury Foreperson Postmaster
In re: New Life Health Center Co. U.S. Post Office
55 E. Broadway Downtown Station
Tucson, Arizona Tucson, Arizona
Judge Alex Kozinski Evangelina Cardenas [sic]
Ninth Circuit Court of Appeals "Internal Revenue Service"
125 S. Grand Avenue, Suite 200 300 West Congress
Pasadena, California Tucson, Arizona
Attorney General Solicitor General
Department of Justice Department of Justice
10th and Constitution, N.W. 10th and Constitution, N.W.
Washington, D.C. Washington, D.C.
Special Agent William M. McCool [sic]
Federal Bureau of Investigation U.S. District Court
1 South Church Avenue 44 E. Broadway, Room 202
Tucson, Arizona Tucson, Arizona
Executed on July 10, 1996 Clerk of Court
Ninth Circuit Court of Appeals
121 Spear Street
San Francisco, California
____________________________________________
Paul Andrew, Mitchell, B.A., M.S.
Citizen of Arizona state and federal witness
All Rights Reserved without Prejudice
Petition for Rehearing En Banc:
Page 8 of 8
# # #
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In Re Grand Jury Subpoena