Jerome Theodore, Schiefen, Sui Juris
Citizen of South Dakota state
c/o General Delivery
Hudson, South Dakota state
In Propria Persona
Under Protest and
By Special Visitation Only
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
UNITED STATES OF AMERICA [sic], ) Case Number CR-96-40003
)
Plaintiff [sic], )
) NOTICE OF PLEA AND
v. ) PLEA IN ABATEMENT;
) NOTICE OF MOTION AND
JEROME T. SCHIEFEN [sic], ) MOTION TO STAY PROCEEDINGS
) FOR FAILING TO COMPLY WITH
Defendant [sic]. ) GRAND JURY SELECTION POLICY;
) AND NOTICE OF CHALLENGE AND
) CHALLENGE TO
) CONSTITUTIONALITY OF STATUTE:
) 28 U.S.C. 297, 517, 518,
) 1861, 1865, and 1867(d),(e);
) F.R.Cr.P. Rule 6(b)(2);
) F.R.Evid. Rule 201(d);
) Full Faith and Credit Clause
________________________________)
COMES NOW Jerome Theodore, Schiefen, Sui Juris, Citizen of South
Dakota state and Respondent in the above entitled matter
(hereinafter "Respondent"), to reserve His fundamental Right to
abate all jury actions in the instant case, and to Petition this
honorable Court for a stay of the instant proceedings, pursuant
to the provisions of 28 U.S.C. 1867(d), pending proper review of
the Respondent's challenge to the constitutionality of 28 U.S.C.
1865, and to provide notice of same to all interested parties.
The offensive statute follows:
Plea in Abatement, Motion to Stay, Challenge to Statute:
Page 1 of 9
1865. Qualifications for jury service
(a) The chief judge of the district court, or such other
district court judge as the plan may provide ... shall
determine solely on the basis of information provided
on the juror qualification form and other competent
evidence whether a person is unqualified for, or
exempt, or to be excused from jury service. ...
(b) In making such determination the chief judge of the
district court, or such other district court judge as
the plan may provide, shall deem any person qualified
to serve on grand and petit juries in the district
court unless he --
(1) is not a citizen of the United States eighteen
years old who has resided for a period of one
year within the judicial district; ....
[28 U.S.C. 1865, emphasis added]
In stark contrast, it is the policy of the United States
that all citizens shall have the opportunity to be considered
for service on grand and petit juries in the district courts of
the United States. To be constitutional, and to be consistent
with its legislative intent, the term "all citizens", as that
term is used in 28 U.S.C. 1861, must be construed to include
also Citizens of the freely associated compact states who are
not also citizens of the United States (a/k/a "federal
citizens"):
1861. Declaration of policy
It is the policy of the United States that all litigants in
Federal courts entitled to trial by jury shall have the
right to grand and petit juries selected at random from a
fair cross section of the community in the district or
division wherein the court convenes. It is further the
policy of the United States that all citizens shall have
the opportunity to be considered for service on grand and
petit juries in the district courts of the United States,
and shall have an obligation to serve as jurors when
summoned for that purpose.
[28 U.S.C. 1861, emphasis added]
Plea in Abatement, Motion to Stay, Challenge to Statute:
Page 2 of 9
Respondent hereby gives notice to all interested parties of
His sworn (verified) statement of law and facts which constitute
a substantial failure to comply with the Constitution for the
United States of America, as lawfully amended (hereinafter "U.S.
Constitution"), and with the provisions of Title 28, United
States Code, Section 1861: Declaration of Policy. See 28
U.S.C. 1867(d) and (e). The grand and petit juries consisted of
members all of whom were citizens of the United States, not
necessarily Citizens of South Dakota state. See Dyett v. Turner
and State v. Phillips infra; Right of Election; voter
registration affidavits; U.S. v. Griffith, 2 F.2d 925 (1924).
By way of introduction to the crucial matters of fact and
law which are discussed at length in Respondent's sworn
(verified) statement, which is hereby incorporated by reference
as if set forth fully herein, this honorable Court is hereby
respectfully requested to take formal judicial notice of the
additional standing authorities on this question:
We have in our political system a Government of the United
States and a government of each of the several States.
Each one of these governments is distinct from the others,
and each has citizens of its own .... Slaughter-House
Cases
[United States v. Cruikshank, 92 U.S. 542 (1875)]
[emphasis added]
A person who is a citizen of the United States** is
necessarily a citizen of the particular state in which he
resides. But a person may be a citizen of a particular
state and not a citizen of the United States. To hold
otherwise would be to deny to the state the highest
exercise of its sovereignty, -- the right to declare who
are its citizens.
[State v. Fowler, 41 La. Ann. 380]
[6 S. 602 (1889), emphasis added]
There are, then, under our republican form of government,
two classes of citizens, one of the United States and one
of the state. One class of citizenship may exist in a
person, without the other, as in the case of a resident of
the District of Columbia; but both classes usually exist in
the same person.
[Gardina v. Board of Registrars, 160 Ala. 155]
[48 S. 788, 791 (1909), emphasis added]
There are over 100,000 elementary and secondary schools in
the United States. ... Each of these now has an invisible
federal zone extending 1,000 feet beyond the (often
irregular) boundaries of the school property.
[U.S. v. Lopez, 115 S.Ct. 1624 (1995)]
Plea in Abatement, Motion to Stay, Challenge to Statute:
Page 3 of 9
As a Party to the instant case, the Respondent hereby
challenges the indicting grand jury, and the convicting petit
jury, on the ground that such juries were not selected in
conformity with section 1861 of Title 28, because Citizens of
South Dakota state who are not also citizens of the United
States (a/k/a federal citizens) are disqualified from serving by
virtue of their chosen Citizenship status. See 28 U.S.C.
1867(e); Right of Election; 15 Statutes at Large, Chapter 249
(Section 1), enacted July 27, 1868; jus soli; jus sanguinis.
Specifically, the offensive statute forces the following
unconstitutional result upon Citizens of South Dakota state who
choose not also to be citizens of the United States (a/k/a
federal citizens):
citizen of Citizen of Qualified
United States South Dakota to serve
Yes Yes Yes
Yes No Yes
No No No
No Yes No **
This result ("**") violates the Tenth Amendment by disqualifying
Citizens of South Dakota state from serving on federal grand and
petit juries when they are not also federal citizens, thus
denying to accused Citizens of South Dakota state a grand jury
of Their Peers when a grand jury consists of federal citizens
only.
Plea in Abatement, Motion to Stay, Challenge to Statute:
Page 4 of 9
An intentional discrimination against a class of persons,
solely because of their class, by officers in charge of the
selection and summoning of grand and petit jurors in a criminal
case, is a violation of the fundamental Rights of an accused.
See Cassell v. Texas, 339 U.S. 282; Atkins v. Texas, 325 U.S.
398; Pierre v. Louisiana, 306 U.S. 354. Such a violation is
not excused by the fact that the persons actually selected for
jury service otherwise possess the necessary qualifications for
jurors as prescribed by statute. State v. Jones, 365 P.2d 460.
Discrimination in the selection of grand and petit juries,
as prohibited by the U.S. Constitution, means an intentional,
systematic noninclusion because of class. There are two (2)
classes of citizenship in America. E.g. Gardina supra. The
statute 28 U.S.C. 1865(b)(1) specifically excludes those classes
of Citizens who are not mentioned. Inclusio unius est exclusio
alterius. The following statute dramatically demonstrates that
Congress appreciates the difference between the two classes, and
knows how to discriminate between "white citizens" (read "state
Citizens") and "citizens of the United States" (a/k/a federal
citizens). The Civil Rights Act, 14 U.S. Statutes at Large, p.
27, which was the forerunner of the so-called 14th Amendment,
amply shows the intent of Congress, as follows:
... [A]ll persons born in the United States and not subject
to any foreign power, excluding Indians not taxed, are
hereby declared to be citizens of the United States; and
such citizens, of every race and color ... shall have the
same right, in every State and Territory in the United
States ... to full and equal benefit of all laws and
proceedings for the security of person and property, as is
enjoyed by white citizens.
[emphasis added]
Plea in Abatement, Motion to Stay, Challenge to Statute:
Page 5 of 9
Once a prima facie case for the existence of purposeful
discrimination is made out, the burden shifts to the prosecution
to prove otherwise. See Whitus v. Georgia, 385 U.S. 545.
Reliance on the so-called Fourteenth Amendment to resolve this
matter is moot, because the Fourteenth Amendment was never
lawfully ratified, and because the authorities cited supra allow
for the possibility that a Person can be a state Citizen without
also being a federal citizen, whether or not the Fourteenth
Amendment was lawfully ratified. See State v. Phillips, 540 P.2d
936, 941 (1975); Dyett v. Turner, 20 Utah 2d 403, 439 P.2d 266,
270 (1968); Full Faith and Credit Clause; 28 Tulane Law Review
22; 11 South Carolina Law Quarterly 484; House Congressional
Record, June 13, 1967, p. 15641 et seq.
As such, there is no constitutional provision which makes a
federal citizen also a citizen of the Union state in which s/he
resides, nor is there any constitutional provision which states
that the validity of the public debt shall not be questioned.
The judicial history of American citizenship is a subject
which is rich in nuance and detail, as demonstrated in
Respondent's sworn (verified) statement. For example, at a time
when those Islands were in the federal zone, the Supreme Court
of the Philippine Islands found that "citizenship," strictly
speaking, is a term of municipal law and, according to that
Court, it is municipal law which regulates the conditions on
which citizenship is acquired:
Citizenship, says Moore on International Law, strictly
speaking, is a term of municipal law and denotes the
possession within the particular state of full civil and
political rights subject to special disqualifications, such
as minority, sex, etc. The conditions on which citizenship
are [sic] acquired are regulated by municipal law. There
is no such thing as international citizenship nor
international law (aside from that which might be contained
in treaties) by which citizenship is acquired.
[Roa v. Collector of Customs]
[23 Philippine 315, 332 (1912)]
Plea in Abatement, Motion to Stay, Challenge to Statute:
Page 6 of 9
Indeed, international law is divided roughly into two groups:
(1) public international law and (2) private international law.
Citizenship is a term of private international law (also known
as municipal law) in which the terms "state", "nation" and
"country" are all synonymous:
Private international law assumes a more important aspect
in the United States than elsewhere, for the reason that
the several states, although united under the same
sovereign authority and governed by the same laws for all
national purposes embraced by the Federal Constitution, are
otherwise, at least so far as private international law is
concerned, in the same relation as foreign countries. The
great majority of questions of private international law
are therefore subject to the same rules when they arise
between two states of the Union as when they arise between
two foreign countries, and in the ensuing pages the words
"state," "nation," and "country" are used synonymously and
interchangeably, there being no intention to distinguish
between the several states of the Union and foreign
countries by the use of varying terminology.
[16 Am Jur 2d, Conflict of Laws, Sec. 2]
[emphasis added]
Congress does refer to the Union states as "countries." See 28
U.S.C. 297.
RELIEF SOUGHT
Wherefore, Respondent petitions this honorable Court for an
indefinite stay of the proceedings in the instant case, pending
proper review of the substantial issues of law and fact which
are alleged in this Motion and which are contained in
Respondent's sworn (verified) statement which is attached hereto
and incorporated by reference as if set forth fully herein. In
the event that Respondent should prevail on said issues,
Respondent reserves His fundamental Right to abate all jury
action(s) in the instant case, because of the unlawful class
discrimination which is exhibited by the Jury Selection and
Service Act, 28 U.S.C. 1861 et seq.
Executed on: _________________________
Plea in Abatement, Motion to Stay, Challenge to Statute:
Page 7 of 9
Respectfully submitted,
/s/ Jerome Theodore Schiefen
Jerome Theodore, Schiefen, Sui Juris
Citizen of South Dakota state
All Rights Reserved without Prejudice
/s/ Paul Andrew Mitchell
Paul Andrew, Mitchell, B.A., M.S.
Citizen of Arizona state, federal witness
and Counselor at Law
Plea in Abatement, Motion to Stay, Challenge to Statute:
Page 8 of 9
PROOF OF SERVICE
I, Jerome Theodore, Schiefen, 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):
NOTICE OF PLEA AND PLEA IN ABATEMENT;
NOTICE OF MOTION AND MOTION TO STAY PROCEEDINGS
FOR FAILING TO COMPLY WITH GRAND JURY SELECTION POLICY;
AND NOTICE OF CHALLENGE AND
CHALLENGE TO CONSTITUTIONALITY OF STATUTE:
28 U.S.C. 297, 517, 518, 1861, 1865, and 1867(d),(e),
F.R.Cr.P. Rule 6(b)(2); F.R.Evid. 201(d);
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:
Office of the United States Attorney
United States Department of Justice
Federal Building
Sioux Falls, South Dakota state
Attorney General
Department of Justice
10th and Constitution, N.W.
Washington
DISTRICT OF COLUMBIA
Solicitor General
Department of Justice
10th and Constitution, N.W.
Washington
DISTRICT OF COLUMBIA
Executed on: _____________________________
/s/ Jerome Theodore Schiefen
__________________________________________
Jerome Theodore, Schiefen, Sui Juris
Citizen of South Dakota state
All Rights Reserved without Prejudice
Plea in Abatement, Motion to Stay, Challenge to Statute:
Page 9 of 9
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U.S.A. v. Jerome T. Schiefen