Everett C. Gilbertson, Sui Juris
Citizen of Minnesota state
and federal witness
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
Appellees, )
v. )
)
EVERETT C. GILBERTSON [sic], )
)
Defendant [sic]/ )
Appellant. )
________________________________)
)
Everett C. Gilbertson, ) DCUS Minneapolis #4-96-65
)
Plaintiff/Appellant, )
)
v. ) APPELLANT'S OPENING BRIEF
)
United States, ) (first impression)
James M. Rosenbaum, )
and Does 2-99, ) ON APPEAL FROM CONVICTION
) AND JUDGMENT IN THE USDC
Respondents. )
________________________________)
Prepared
on Behalf of Appellant
by
Paul Andrew Mitchell, B.A., M.S.
Counselor at Law, federal witness
and Counsel to Appellant
Appellant’s Opening Brief: Cover Page
Everett C. Gilbertson, Sui Juris
Citizen of Minnesota state
and federal witness
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
Appellees, )
v. )
)
EVERETT C. GILBERTSON [sic], )
)
Defendant [sic]/ )
Appellant. )
________________________________)
)
Everett C. Gilbertson, ) DCUS Minneapolis #4-96-65
)
Plaintiff/Appellant, ) APPELLANT’S OPENING BRIEF:
)
v. ) (first impression)
)
United States, ) ON APPEAL FROM CONVICTION
James M. Rosenbaum, ) AND JUDGMENT IN THE USDC
and Does 2-99, )
)
Respondents. )
________________________________)
COMES NOW Everett C. Gilbertson, Sui Juris, Citizen of Minnesota
state, federal witness, expressly not a citizen of the United
States (hereinafter "federal citizen"), and Appellant in the
above entitled matter (hereinafter "Appellant") to submit this,
His OPENING BRIEF on first impression in the above entitled
cases, and respectfully to request full appellate review of all
proceedings below, with emphasis on the issues discussed herein.
Appellant’s Opening Brief: Preface Page
(1) Summary
The USDC erred by denying both a motion to stay proceedings
and a motion to reconsider same. Appellant's challenge to the
Jury Selection and Service Act ("JSSA") had serious implications
for the legality of the indicting grand jury, and the convicting
petit jury. This challenge deserved final review before trial.
The judge of the USDC committed serious errors by alleging
to preside over sentencing and by alleging to deny Appellant's
MOTION FOR RELEASE PENDING APPEAL, due to an obvious, adverse
conflict of interest, in violation of 28 U.S.C. 455.
Appellant's civil case in the DCUS should be allowed to
proceed, to obtain pivotal declaratory relief from a competent
and qualified federal petit jury concerning several substantive
questions of law and fact which arose in the record below.
A three-judge federal panel presiding over the DCUS should
be convened, enjoined from issuing summary remands of the cases
back to the USDC, and mandated to proceed to trial on the merits.
All of Appellant's constitutional challenges should also be
decided finally by this honorable Court, or the U.S. Supreme
Court, before any further proceedings occur in either the USDC,
or the DCUS, due to their obvious impact on matters to be decided
in those two forums.
Request for Oral Argument
Appellant hereby requests leave for Appellant's Counselor,
Paul Andrew Mitchell, to present oral arguments to this honorable
Court, by allocating at most five (5) minutes to each of the
seven (7) major issues which are itemized infra. Such a schedule
would require a maximum of thirty-five (5 x 7 = 35) minutes of
oral arguments by Appellant's Counselor, who authored this Brief.
Appellant’s Opening Brief: Page 1 of 50
(2) Table of Contents
Page
(1) Summary .................................................. 1
(2) Table of Contents (this page) ............................ 2
(A) Table of Cases ...................................... 3
(B) Statutes ............................................ 4
(C) Other Authorities ................................... 5
(3) Preliminary Statement .................................... 7
Verification by Appellant ........................... 7
(4) Statement of Issues: ..................................... 8
(A) Jury Selection and Service Act ("JSSA") ............. 8
(B) Minnesota Voter Registration Practices ............. 11
(C) Apportionment of Congressional Districts ........... 15
(D) Blanket FOIA Exemption for Judiciary ............... 19
(E) Federal Removal Statutes ........................... 27
(F) Downes Doctrine Revisited .......................... 40
(G) Vagueness in the Internal Revenue Code ("IRC") ..... 44
(5) Statement of the Case ................................... 48
(6) Summary of Argument ..................................... 49
(7) Proof of Service ........................................ 50
(8) Appendices, by docket date/entry (under separate cover):
5/16/97 MOTION FOR REHEARING EN BANC (8th Circuit)
4/17/97 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
4/17/97 AFFIDAVIT OF APPLICABLE LAW & DENIAL OF LIABILITY
4/14/97 PETITION FOR WARRANT OF REMOVAL BY 3-JUDGE PANEL
4/09/97 AFFIDAVITS OF DEFAULT AND OF PROBABLE CAUSE
4/02/97 MOTION FOR RECONSIDERATION OF STAY MOTION (2 of 3)
4/02/97 VERIFIED STATEMENT IN SUPPORT OF CHALLENGE TO JSSA
3/20/97 NOTICE & DEMAND FOR PROOF OF POWER, STANDING, JURISDIC.
3/20/97 NOTICE & DEMAND TO DISMISS FOR LACK OF CRIMINAL JURIS.
3/20/97 MEMORANDUM IN SUPPORT OF CHALLENGE TO CRIMINAL JURIS.
2/18/97 NOTICE & DEMAND FOR MANDATORY JUDICIAL NOTICE (FOIA)
10/31/96 MOTION TO STAY PROCEEDINGS/CHALLENGE TO JSSA (1 of 3)
10/31/96 MEMORANDUM IN SUPPORT OF MOTION TO STAY PROCEEDINGS
7/17/96 MEMORANDUM: CITIZENSHIP STATUS OF USDC JURORS
6/06/96 STATUS REPORT & CITIZEN'S GUIDE TO THE FOIA/PRIVACY ACT
library The Federal Zone: Cracking the Code of Internal Revenue
Appellant’s Opening Brief: Page 2 of 50
(A) Table of Cases
U.S. Supreme Court:
American Insurance Co. v. 356 Bales of Cotton:........ 30, 31, 33
Akins v. Texas:............................................... 10
Baker v. Carr:................................................ 13
Balzac v. Porto Rico [sic]:............................... 31, 33
Brushaber v. Union Pacific Railroad Company:.................. 25
Cassell v. Texas:............................................. 10
Cohen v. Beneficial Industrial Loan Corp.:..................... 7
Connally v. General Construction Co.:......................... 45
Downes v. Bidwell:................................ 12, 26, 40, 42
Evans v. Gore:............................................ 40, 41
Gregory v. Ashcroft:.......................................... 12
Helstoski v. Meanor:........................................... 7
Hooven & Allison v. Evatt:................................ 24, 43
International Longshoremen's & Warehousemen's Union
v. Juneau Spruce Corp.:..................................... 31
Marbury v. Madison:........................................... 13
Miranda v. Arizona:........................................... 13
Mookini v. U.S.:.............................................. 28
New York v. United States:.................................... 12
Norton v. Shelby County:...................................... 13
O'Donoghue v. U.S.:........................................... 28
O'Malley v. Woodrough:........................................ 41
Pierre v. Louisiana:.......................................... 10
Slaughter House Cases:......................................... 8
South Carolina v. Katzenbach:................................. 13
Spreckles Sugar Refining Co. v. McLain:....................... 46
U.S. v. Cruikshank:........................................ 8, 44
U.S. v. Lopez:..................................... 9, 30, 42, 43
U.S. v. Wigglesworth:......................................... 45
Waltz v. Tax Commission of New York City:..................... 27
U.S. Court of Appeals:
Denison v. Commissioner (8th Cir.):........................... 23
Graves v. Snead (6th Cir.):................................... 29
Hubbard v. Ammerman (5th Cir.):............................... 29
International Longshoremen's and Warehousemen's Union
v. Wirtz (9th Cir.):........................................ 31
Lively v. Commissioner (8th Cir.):............................ 23
U.S. v. Griffin (9th Cir.):.................................... 7
U.S. v. Hicks (9th Cir.):..................................... 40
U.S. v. Johnson (4th Cir.):................................... 32
U.S. v. Layton (9th Cir.):..................................... 7
U.S. v. Saunders (9th Cir.):.................................. 29
U.S. v. Tweel (5th Cir.):..................................... 20
U.S. v. Woodley (9th Cir.):................................... 27
U.S. v. Yellows Freight Systems, Inc. (9th Cir.):.............. 7
Valley Broadcasting Co. v. USDC (9th Cir.):................... 20
Federal District Courts:
In Re Grand Jury Subpoena Served on New Life Health Center,
(USDC, D. Arizona):..................................... 18, 43
Lord v. Kelley (USDC, D. Massachusetts):...................... 41
U.S. v. De Cadena (USDC, N.D. California):.................... 44
U.S. v. One 1972 Cadillac Coupe de Ville (USDC, E.D.Ky.):..... 28
Appellant’s Opening Brief: Page 3 of 50
State Courts:
Alexander v. R.D. Geier & Sons Co. (Maryland Appeals):........ 14
Carmine v. Bowen (Maryland Appeals):...................... 17, 20
Carter v. Commission on Qualifications (California Supreme):.. 13
Crosse v. Board of Supervisors (Maryland Appeals):............. 8
Dyett v. Turner (Utah Supreme):............................... 24
Erdahl v. Spannaus (Minnesota District):...................... 11
Ex parte Knowles (California Supreme):......................... 9
Fort v. Civil Service Commission: (California Supreme):....... 13
Gardina v. Board of Registrars (Alabama Supreme):.......... 8, 10
People v. Boxer (California Supreme):..................... 23, 27
People v. Pablo De La Guerra (California Supreme):............. 9
People v. Washington (California Supreme):................. 13-14
Respublica v. Wray (Pennsylvania Supreme):.................... 20
State v. Bernoudy (Missouri Supreme):......................... 20
State v. Christensen (Utah Supreme):.......................... 20
State v. Fowler (Louisiana Supreme):........................... 8
State v. Jones (Hawaii Supreme):.............................. 10
Other Courts:
Roa v. Collector (Philippine Supreme):........................ 11
(B) Statutes
Federal Statutes:
1 U.S.C.:.................................................... 44
1 U.S.C. 1:.............................................. 28, 32
5 U.S.C. 551(A), (B):........................................ 20
5 U.S.C. 552 et seq.:........................................ 35
5 U.S.C. 552(a)(4)(B):........................... 18, 35, 36, 38
5 U.S.C. 552(f):............................................. 19
5 U.S.C. 3331:........................................... 20, 38
18 U.S.C. 241:................................................ 14
18 U.S.C. 1962:............................................... 32
18 U.S.C. 1964:............................................... 32
18 U.S.C. 3241:............................................... 31
26 U.S.C.:............................................ 29, 44, 45
26 U.S.C. 7206(1):............................................. 7
26 U.S.C. 7401:............................................... 28
28 U.S.C.:........................................ 17, 29, 30, 45
28 U.S.C. 132:............................................ 29, 45
28 U.S.C. 297:................................................ 12
28 U.S.C. 453:............................................ 20, 38
28 U.S.C. 951:............................................ 20, 38
28 U.S.C. 1291:................................................ 7
28 U.S.C. 1346(1):............................................ 22
28 U.S.C. 1441 et seq.:................................... 32, 33
28 U.S.C. 1441(a):............................................ 35
28 U.S.C. 1441(b):.................................... 34, 35, 39
28 U.S.C. 1441(e):.................................... 27, 38, 39
28 U.S.C. 1443:............................................... 37
28 U.S.C. 1446(c)(1):......................................... 36
28 U.S.C. 1447(d):............................ 27, 36, 37, 38, 39
28 U.S.C. 1451(2):........................................ 34, 39
28 U.S.C. 1631:........................................... 22, 39
28 U.S.C. 1652:............................................... 40
28 U.S.C. 1738-1742:.......................................... 19
28 U.S.C. 1746(1):......................................... 7, 21
Appellant’s Opening Brief: Page 4 of 50
28 U.S.C. 1861:............................................... 16
28 U.S.C. 1865(b)(1):............................... 8, 9, 10, 16
28 U.S.C. 1867(d):........................................ 16, 45
28 U.S.C. 2284:............................................... 15
28 U.S.C. 2402:............................................... 22
Act June 25, 1948, 62 Stat. 895:.......................... 29, 30
Act November 13, 1963, 77 Stat. 331:.......................... 29
Act September 13, 1994:....................................... 14
Civil Rights Act (1866):....................................... 9
Expatriation Statute:......................................... 12
Freedom of Information Act ("FOIA"):....................................................18, 19, 21, 27, 33, 35, 36, 37, 38, 39, 40
Internal Revenue Code ("IRC"):.................... 23, 24, 44, 46IRC section 1(c):............................................. 23
IRC section 7206:............................................. 44
IRC section 7401:......................................... 27, 44
IRC section 7402:..................................... 28, 29, 44
IRC section 7851(a)(6)(A):.................................... 44
IRC subtitle F:............................................... 44
Jury Selection and Service Act ("JSSA"):.................. 11, 15P.L. 92-310, P.L. 103-322:................................ 28, 14
State Statutes:
Minnesota Statute 201.014:.................................... 11
(C) Other Authorities
Federal Constitution:
U.S. Constitution:.10, 14, 18, 19, 20, 21, 24, 28, 29, 40, 42, 43
Article I:................................................ 28, 41
Article I, Section 2, Clause 2 ("1:2:2"):...................... 9Article I, Section 2, Clause 3 ("1:2:3"):................. 23, 24Article I, Section 3, Clause 3 ("1:3:3"):...................... 9Article I, Section 8:......................................... 23
Article I, Section 8, Clause 17 ("1:8:17"):............ 9, 40, 43Article I, Section 9, Clause 4 ("1:9:4"):................. 23, 24Article II, Section 1, Clause 5 ("2:1:5"):..................... 9Article III:.............................. 18, 28, 29, 30, 31, 32
Article III, Section 1 ("3:1"):................... 40, 41, 42, 43Article III, Section 2, Clause 1 ("3:2:1"):.................... 9Article IV:........................................... 28, 32, 41
Article IV, Section 1 ("4:1"):............................ 10, 19 Full Faith and Credit Clause ("4:1"):.................. 10, 19Article IV, Section 2, Clause 1 ("4:2:1"):................. 9, 41 Privileges and Immunities Clause ("4:2:1"):............. 9, 41Article IV, Section 3, Clause 2 ("4:3:2"):............. 9, 31, 34 Territory Clause ("4:3:2"):......................... 9, 31, 34Article IV, Section 4 ("4:4"):.................... 11, 12, 13, 15 Guarantee Clause ("4:4"):...................... 11, 12, 13, 15Article VI, Clause 2 ("6:2"):..................... 12, 13, 19, 20 Supremacy Clause ("6:2"):...................... 12, 13, 19, 20Article VI, Clause 3 ("6:3"):..................... 19, 20, 21, 38 Oath of Office Clause ("6:3"):................. 19, 20, 21, 38Preamble, Bill of Rights:..................................... 14
First Amendment:.......................................... 11, 15
Petition Clause:....................................... 19, 34
Fifth Amendment:...................................... 21, 34, 37
Due Process Clause:.................................... 27, 37
Appellant’s Opening Brief: Page 5 of 50
Sixth Amendment:.............................................. 44
Nature and Cause Clause:................................... 44
Seventh Amendment:............................................ 22
Ninth Amendment:.......................................... 21, 43
Tenth Amendment:.......................... 11, 15, 16, 21, 34, 43
Thirteenth Amendment (1819):.............................. 10, 20
Fourteenth amendment (1868):.......................... 13, 23, 24
Sixteenth amendment (1913):................... 23, 24, 40, 46, 47
Declaration of Independence:.................................. 14
United States Treaties:............................... 27, 35, 40
International Covenant on Civil and Political Rights:..... 27, 40
Universal Declaration of Human Rights:.................... 27, 40
State Constitutions:.......................................... 21
Minnesota state Constitution:............................. 11, 15
Article VII, Sections 1, 6:................................ 11
Code of Federal Regulations:
26 CFR 1.1-1(a)(1):........................................... 23
26 CFR 1.1-1(a) thru (c):..................................... 23
31 CFR 51.2:.............................................. 34, 37
31 CFR 52.2:.............................................. 34, 37
Federal Rules of Procedure:
Federal Rules of Appellate Procedure, Local Rule 28A(j):...... 25
Federal Rules of Civil Procedure, Rule 38:.................... 22
Federal Rules of Evidence, Rule 201(d):....................... 19
U.S. Treasury Decisions:
Treasury Decision 2313:................................... 24, 25
Legal Maxims/Doctrines:
Downes Doctrine:...................................... 24, 40, 43
Equal Footing Doctrine:....................................... 13
Inclusio unius est exclusio alterius:.............. 9, 10, 29, 35
In pari materia:.............................................. 22
Lex non cogit impossibilia:................................... 25
Nunc pro tunc:................................................ 22
Reductio ad absurdum:.......................................... 9
Other Sources:
A Citizen's Guide on Using the Freedom of Information Act
and the Privacy Act of 1974 to Request Government Records,
1993 Edition, H. Rep. 103-104, 103rd Cong., 1st Sess.:...... 18
American Digest System:....................................... 21
American Jurisprudence:....................................... 13
Black's Law Dictionary, Sixth Edition:.. 8, 9, 10, 12, 13, 14, 29
Corpus Juris:................................................. 20
Corpus Juris Secundum:........................................ 20
The Federal Zone: Cracking the Code of Internal Revenue:.........
............................................... 9, 24, 25, 42, 47
Merritt, "The Guarantee Clause and State Autonomy: Federalism
for a Third Century," 88 Columbia Law Review 1 (1988):...... 12
Sutherland, Statutes and Statutory Construction:.............. 45
UCLA Law Review, Vol. 24, No. 2, Dec. 1976:................... 41
Appellant’s Opening Brief: Page 6 of 50
(3) Preliminary Statement
i. The instant appeal is taken from conviction and
judgment by Mr. James M. Rosenbaum, claiming to preside
on the United States District Court, District of
Minnesota, Fourth Division, at Minneapolis, Minnesota
state, for two counts of violating 26 U.S.C. 7206(1).
ii. Appellant alleges, and herein proves, that the United
States District Court ("USDC") which prosecuted Appellant lacked any jurisdiction whatsoever, civil or
criminal, over the subject matters which arose in the
instant cases.
iii. This United States Court of Appeals for the Eighth
Circuit has appellate jurisdiction of the instant
Criminal Case [sic], pursuant to the Final Judgments
Act at 28 U.S.C. 1291.
iv. This Court also has appellate jurisdiction of the
instant Civil Case, pursuant to decisions of the U.S.
Supreme Court in Cohen v. Beneficial Industrial Loan
Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528
(1949); Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct.
2445, 2449, 61 L.Ed.2d 30 (1979); U.S. v. Griffin, 617
F.2d 1342, 1345-46 (9th Cir. 1980), cert denied, 101
S.Ct. 167, 66 L.Ed.2d 80; and U.S. v. Yellows Freight
Systems, Inc., 637 F.2d 1248 (9th Cir. 1981). See also
U.S. v. Layton, 645 F.2d 681, 682-683 (9th Cir. 1981),
citing Cohen supra at 682-683.
(A) Verification by Appellant
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" (federal government), that
the following 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, federal witness
(expressly not a citizen of the United States)
Appellant’s Opening Brief: Page 7 of 50
(4) Statement of Issues
Appellant hereby gives appropriate priority to the following
challenges to the constitutionality of certain federal statutes,
to wit:
(A) The Jury Selection and Service Act, Title 28, United
States Code (hereinafter "U.S.C."), section 1865(b)(1),
is unconstitutional for exhibiting class discrimination
against Citizens of Minnesota state who are not also
federal citizens, in violation of the First and Tenth
Amendments, and the Guarantee Clause.
There are two (2) classes of citizenship under American law
never repealed, not one (1). See Gardina v. Board of Registrars,
160 Ala. 155, 48 S. 788, 791 (1909). A Person may be a Citizen
of a particular state, and not a federal citizen. Confer at
"Federal citizenship" in Black's Law Dictionary, Sixth Edition.
To hold otherwise would be to deny to Minnesota state the highest
exercise of its sovereignty -- the Right to declare who are its
Citizens. See State v. Fowler, 41 La. Ann. 380, 6 S. 602 (1889);
Crosse v. Board of Supervisors of Elections, 243 Md. 555, 221
A.2d 431, 434 (1966). Confer at "Right" and "Election" in
Black's supra, to derive "Right of Election" [sic].
We have in our political system a government of the United
States (federal government), and a government of each of the
several states of the Union. Each of these 51 governments is
distinct from the others, and each has citizens of its own. See
United States v. Cruikshank, 92 U.S. 542 (1875). It is quite
clear, then, that there is a citizenship of the United States
("federal citizenship"), and a Citizenship of Minnesota state
("state Citizenship"), which are distinct from each other, and
which depend upon different characteristics or circumstances in
the individual. See Slaughter House Cases, 83 U.S. 36 (1872).
Appellant’s Opening Brief: Page 8 of 50
The prohibited class discrimination in the Jury Selection
and Service Act ("JSSA") results in a demonstrably absurd
consequence. A Citizen of Minnesota state, who is not also a
federal citizen by Right of Election, is not a "resident alien"
by any stretch of the imagination. A Citizen of Minnesota state
is a nonresident alien with respect to the municipal jurisdiction
of the District of Columbia, also known as "the federal zone".
See Kennedy concurring in U.S. v. Lopez, 115 S.Ct. 1624 (1995);
1:2:2, 1:3:3, 1:8:17, 2:1:5, 3:2:1, 4:2:1 and 4:3:2 in the U.S.
Constitution; T.D. 2313; The Federal Zone: Cracking the Code of
Internal Revenue, electronic Seventh Edition (1997).
Prior to the 1866 Civil Rights Act, there was no such thing
as a "citizen of the United States" [sic]. See Ex parte Knowles,
5 Cal. 300 (1855). The qualifications for serving in the U.S.
Senate, U.S. House of Representatives, and the White House, all
refer to Citizens of one of the several states of the Union, and
not to federal citizens; these provisions have never been
amended; they retain today the meaning which they had when the
U.S. Constitution was first enacted into the supreme Law. See
People v. Pablo De La Guerra, 40 Cal. 311, 337 (1870); Jus soli.
Therefore, the federal JSSA is unconstitutional for
deliberately excluding those very People who are eligible to
serve in the highest elective offices in the federal government;
this result is absurd. Confer at "Reductio ad absurdum" in
Black's supra. The omission of state Citizens from the JSSA was
intentional. Confer at "Inclusio unius est exclusio alterius" in
Black's supra. An irrefutable inference must be drawn that what
was omitted or excluded was intended to be omitted or excluded.
Appellant’s Opening Brief: Page 9 of 50
Similarly, since federal citizenship did not even exist, as
such, prior to 1866, the U.S. House, Senate, and White House must
have been occupied entirely by impostors between 1789 and 1865 --
a period of some 77 years. This result is also absurd, absent
further authoritative proof. See original Thirteenth Amendment
(1819); Full Faith and Credit Clause; Acts of the Virginia
Legislature circa 1819; Colorado state Records Custodian.
An intentional discrimination against a class of Persons,
solely because of their class, by officers in charge of the
selection and summoning of grand or petit jurors in a criminal
case, is a violation of the fundamental Rights of the Accused.
See Cassell v. Texas, 339 U.S. 282 (1950); Akins v. Texas,
325 U.S. 398 (1945); Pierre v. Louisiana, 306 U.S. 354 (1939).
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.
See State v. Jones, 365 P.2d 460 (1961).
Discrimination in the selection of a grand or petit jury, as
prohibited by the U.S. Constitution, means an intentional,
systematic non-inclusion because of class. There are two (2)
classes of citizenship in American Law never repealed. E.g.
Gardina supra. The statute at 28 U.S.C. 1865(b)(1) specifically
excludes those classes of Citizens who are not mentioned. Confer
at "Inclusio unius est exclusio alterius" in Black's supra.
Therefore, Appellant was neither indicted by a legal body,
nor was Appellant convicted by a legal body, thereby depriving
the trial court of jurisdiction over the subject matter in the
first instance.
Appellant’s Opening Brief: Page 10 of 50
(B) The statutes and practices of Minnesota state, and of
all other 49 states by logical extension, are likewise
unconstitutional for requiring that all registered
voters be federal citizens before they are eligible to
vote in general elections of U.S. Representatives, U.S.
Senators, and the President of the United States, in
violation of the First and Tenth Amendments and also
the Guarantee Clause.
For reasons which are identical to the reasons why the JSSA
is unconstitutional, the corresponding constitutional provisions,
statutes, and practices of Minnesota state are likewise
unconstitutional for requiring that all registered voters be
federal citizens before they are eligible to vote in general
elections of U.S. Representatives, Senators, and the President.
A Minnesota state district court has ruled that a person who
is eighteen years old, a citizen of the United States [sic], and
a resident of Minnesota for twenty days, is qualified to vote.
The decision was not appealed. See Erdahl v. Spannaus et al.,
No. 393442, Ramsey District court, May 9, 1974; Minnesota
Statute 201.014 (Eligibility to Vote); Minnesota Constitution,
Article VII, Section 1, notes thereunder, and Section 6.
Congress therefore erred by adjudging Minnesota's state
constitution to be Republican in Form when Minnesota was first
admitted to the Union, and by neglecting to oversee subsequent
amendments to Minnesota's state constitution, because such a
restriction on voter eligibility is a clear violation of the
First and Tenth Amendments and also the Guarantee Clause ("4:4").
Citizenship, strictly speaking, is a term of municipal law.
See Roa v. Collector of Customs, 23 Philippine 315, 332 (1912).
Since the federal zone is, by definition, not a Union state,
there is no constitutional requirement that its municipal laws
and government(s) be Republican in Form [sic].
Appellant’s Opening Brief: Page 11 of 50
Federal citizens are members of a political community who
owe their allegiance to a government which is not Republican in
Form, at present; it is an absolute legislative democracy. See
Downes infra, Harlan dissenting. To force Citizens of Minnesota
state into this allegiance, as a condition precedent to electing
their Representatives in the U.S. Congress, is to force a
violation of the Guarantee Clause, at its most basic level.
The Guarantee Clause must be construed by this honorable
Court to enforce the Right of Election among Citizens of the
several states, and among federal citizens as well. See
Supremacy Clause; Jus soli; Act July 27, 1868, 15 Statutes at
Large, Chapter CCXLIX (i.e. 249), Section 1; 28 U.S.C. 297
(Union states are "countries"). Confer at "Expatriation" in
Black's supra (i.e. one's "country" [sic]).
Speaking through Justice O'Connor, the Supreme Court of the
United States ("U.S. Supreme Court") has raised without deciding
the possibility that the Guarantee Clause is justiciable and is a
constraint upon Congress' power to regulate the activities of the
several states. See New York v. United States, 112 S.Ct. 2408,
2432-2433 (1992); Gregory v. Ashcroft, 501 U.S. 452, 463 (1991).
These opinions draw support from a powerful argument for
utilizing the Guarantee Clause as a judicially enforceable limit
on federal power. See Merritt, "The Guarantee Clause and State
Autonomy: Federalism for a Third Century," 88 Columbia Law Review
1 (1988). The restriction that Citizens of Minnesota state
cannot vote unless they also declare, under penalty of perjury,
that they are federal citizens, is a justiciable violation of the
Guarantee Clause ("4:4"). See also Supremacy Clause.
Appellant’s Opening Brief: Page 12 of 50
Congress should be barred permanently from admitting any new
states into the Union, and from ignoring amendments to their
constitutions, if said constitutions exhibit such a restriction.
Moreover, unconstitutionality dates from the moment of enactment,
not from the first decision so branding the act. See 16 Am. Jur.
2d, Sec. 177, p. 568; Marbury v. Madison, 5 U.S. (2 Cranch) 137,
174-176 (1803); Miranda v. Arizona, 384 U.S. 436 at 491 (1966);
Norton v. Shelby County, 118 U.S. 425 at 442 (1886).
All states must be admitted to the Union on an equal footing
with the original Thirteen Colonies. The Equal Footing Doctrine
is a limitation only upon the terms by which Congress admits a
state into the Union. See South Carolina v. Katzenbach, 383 U.S.
301 at 328-329 (1966). There is a broader implication, however,
in Baker v. Carr, 369 U.S. 186 at 226, n. 53 (1962).
The so-called Fourteenth amendment is irrelevant to this
discussion, and to the instant cases, because the existence of
two (2) classes of citizenship was upheld by courts after its
enactment was declared, as was the Right to choose (read "elect")
state Citizenship without also becoming a federal citizen, as a
necessary legal consequence of that election. Confer at
"Right/Constitutional Rights/Political rights" in Black's supra:
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]
The Rights to vote and to hold public office are fundamental
Rights. See Fort v. Civil Service Commission of County of
Alameda, 392 P.2d 385 (1964); Carter v. Commission on
Qualifications, 14 Cal.2d 179, 182, 93 P.2d 140 (1939); People
Appellant’s Opening Brief: Page 13 of 50
v. Washington, 36 Cal. 658, 662 (1869). Deprivations of
fundamental Rights are felony violations of 18 U.S.C. 241; the
term "inhabitant" (later "person") as used therein was never
intended to exclude state Citizens who are not also federal
citizens. See Act of September 13, 1994, P.L. 103-322.
If only federal citizens can vote and serve on grand and
petit juries, then state Citizens have thereby been deprived of
all three (3) voices in the management of their state and federal
governments. This deprivation results in taxation without
representation, in violation of the Declaration of Independence.
Confer at "Jury trial" in Black's supra:
The right to "jury trial" of controverted issues implies a
trial by an impartial and qualified jury. Alexander v. R.D.
Grier & Sons Co., 181 Md. 415, 30 A.2d 757, 759 [1943].
[emphasis and year added]
Whenever any form of government becomes destructive of these
ends, it is the fundamental Right of all state Citizens to alter
or abolish that form, and to institute a new government, laying
its foundation on such principles, and organizing its powers in
such form, as to Us, the People of the United States of America,
shall seem most likely to effect Our safety and Our happiness.
These Guarantees are fundamental, inherent, and unalienable. See
Declaration of Independence and Preamble to the original Bill of
Rights, missing from most of the official, published versions of
the U.S. Constitution, to wit:
The conventions of a number of the States having at the time
of their adopting the Constitution, expressed a desire, in
order to prevent misconstruction or abuse of its powers,
that further declaratory and restrictive clauses should be
added: And as extending the ground of public confidence in
the Government, will best insure the beneficient ends of its
institution.
[Preamble, Bill of Rights, emphasis added]
Appellant’s Opening Brief: Page 14 of 50
(C) The apportionment of congressional districts within
Minnesota state is also unconstitutional, by virtue of
the prohibited, class-based discrimination which is
exhibited by the Minnesota state constitution and by
related statutes and practices, all of which require
that registered voters be federal citizens in Minnesota
state, in violation of the First and Tenth Amendments
and the Guarantee Clause.
For all the reasons stated above, Appellant sought to
convene a District Court of three (3) qualified federal judges,
in order to challenge the constitutionality of the apportionment
of congressional districts within Minnesota state and, by logical
extension, throughout the other 49 states of the Union.
Appellant submits that the obvious discrimination against
state Citizens extends from jury selection, to voting booth,
outwards to every Union state which utilizes voter registration
forms requiring registrants to certify, under penalty of perjury,
that they are federal citizens. In other words, state Citizens
must commit perjury if they attempt to vote, by first registering
pursuant to the requirements of unconstitutional state statutes.
Appellant sought to convene a District Court of the United
States (hereinafter "DCUS"), pursuant to 28 U.S.C. 2284, in order
to adjudicate the full implications of Appellant's claim to
having been victimized by such an unconstitutional practice in
Minnesota state. Appellant sought thereby to convene a competent
and qualified federal petit jury, to issue declaratory relief;
but this worthy goal brought Appellant squarely back to the
obvious and unconstitutional class discrimination which is
exhibited by the JSSA. NO STATE CITIZENS ALLOWED!
Ever conscious of this fundamental problem, Appellant
submitted a third MOTION TO STAY PROCEEDINGS FOR FAILING TO
COMPLY WITH THE JURY SELECTION POLICY AND CHALLENGE TO THE
Appellant’s Opening Brief: Page 15 of 50
CONSTITUTIONALITY OF FEDERAL STATUTE (28 U.S.C. 1865(b)(1)). The
first such motion was denied by Mr. Rosenbaum in the instant
case. The second such motion was submitted to the USDC in the
form of a MOTION FOR RECONSIDERATION, because Appellant's
paralegal assistant had committed a small, but very serious,
clerical error in Appellant's first STAY MOTION. Instead of
displaying the following correct version of this crucial table:
citizen of Citizen of Qualified
United States Minnesota state to serve
Yes Yes Yes
Yes No Yes
No No No
No Yes No **
This result ("**") violates the Tenth Amendment by disqualifying Citizens of Minnesota state from serving on
federal grand and petit juries when they are not also
federal citizens, thus denying to accused Citizens of
Minnesota state a jury of Their Peers when a jury consists
only of federal citizens. [sic]
Appellant's paralegal assistant produced the following incomplete
version of the above table instead, in which the two asterisks
"**" were missing:
citizen of Citizen of Qualified
United States Minnesota state to serve
YES YES YES
YES NO YES
NO NO NO
NO YES NO
Appellant's paralegal assistant allowed other serious
typographical errors to creep into said pleading as well.
Appellant submits that Mr. Rosenbaum erred when he denied
two (2) separate motions to stay proceedings for failing to
comply with the federal jury selection policy at 28 U.S.C. 1861.
Appellant properly challenged compliance with the juror
selection procedures, pursuant to 28 U.S.C. 1867(d), in which the
Appellant’s Opening Brief: Page 16 of 50
duty of the trial court is made abundantly clear, to wit:
If the court determines that there has been a substantial
failure to comply with the provisions of this title [Title
28, U.S.C.] in selecting the grand jury, the court shall
stay the proceedings pending the selection of a grand jury
in conformity with this title [Title 28, U.S.C.] or dismiss
the indictment, whichever is appropriate.
[emphasis and brackets added]
If the court determines that there has been a substantial
failure to comply with the provisions of this title [Title
28, U.S.C.] in selecting the petit jury, the court shall
stay the proceedings pending the selection of a petit jury
in conformity with this title [Title 28, U.S.C.].
[emphasis and brackets added]
The term "shall" as used therein has a mandatory, imperative
meaning. The attorneys alleging to represent the Appellees
failed to rebut Appellant's sworn statement of facts which
provided an abundance of evidence proving a substantial failure
to comply with the intent of Congress. That failure -- to
prepare and submit any rebuttal -- resulted in presenting the
USDC with a clear and unmistakable preponderance of evidence to
justify granting the requested stay. Silence activates estoppel,
pursuant to Carmine v. Bowen, 64 A. 932 (1906).
Appellant's third MOTION TO STAY PROCEEDINGS was submitted
to the DCUS, but no valid ruling was ever issued upon this third
STAY MOTION, because no competent or qualified federal judges
were ever appointed to preside upon the three-judge panel which
Appellant requested for that forum. Nor were any Findings of
Fact or Conclusions of Law ever prepared by either forum (USDC or
DCUS) nor by Mr. Rosenbaum, thereby denying to this honorable
Court any authoritative guidance whatsoever as to the reason(s)
why Mr. Rosenbaum denied Appellant's other 2 STAY MOTION's.
Appellant’s Opening Brief: Page 17 of 50
Appellant also invoked judicial power available to Appellant
by Right under Article III of the U.S. Constitution, in order to
compel production of documents properly requested under the FOIA,
and to enjoin the improper withholding of same. The federal
court of original jurisdiction to enforce the FOIA is the DCUS.
See 5 U.S.C. 552(a)(4)(B) and the ORDER by U.S. District Judge
John M. Roll, dated May 21, 1996, In Re Grand Jury Subpoena
Served on New Life Health Center Company, USDC Arizona, Tucson,
case number #GJ-95-1-6 (JMR), to wit:
[T]his [USDC] is not the proper forum to bring a request
under the Freedom of Information Act. [!!!]
[emphasis and brackets added]
Appellant hereby specifically complains that Congress knew,
or should have known, that the federal court of original
jurisdiction to enforce the FOIA is the DCUS, not the USDC, when
Congress published A Citizen's Guide on Using the Freedom of
Information Act and the Privacy Act of 1974 to Request Government
Records, First Report by the House Committee on Government
Operations, Subcommittee on Information, Justice, Transportation,
and Agriculture, 1993 Edition, House Report 103-104, 103rd
Congress, 1st Session, Union Calendar No. 53 (hereinafter
"Citizen's Guide"). See Appendix "O" (under separate cover).
Said Citizen's Guide incorrectly cited the USDC as the
federal court of original jurisdiction for judicial enforcement
of FOIA requests. Compare 5 U.S.C. 552(a)(4)(B) in pari materia.
There is no statute of limitations on fraud, whether actual or
constructive. Specifically, said Citizen's Guide contains the
following statement about judicial appeals:
Appellant’s Opening Brief: Page 18 of 50
I. Filing a Judicial Appeal
When an administrative appeal is denied, a requester
has the right to appeal the denial in court. An FOIA appeal
can be filed in the United States District Court [sic] in
the district where the requester lives. The requester can
also file suit in the district where the documents are
located or in the District of Columbia. When a requester
goes to court, the burden of justifying the withholding of
documents is on the government. This is a distinct
advantage for the requester.
[emphasis and brackets added]
It is very sad that this Citizen's Guide is no longer being
published by the U.S. Government Printing Office ("GPO").
(D) The blanket exemption for the entire judicial branch of
the United States ("federal government") in the Freedom of Information Act ("FOIA") at 5 U.S.C. 551(A), (B), and 552(f), is unconstitutional for being overly broad
and conflicting with the Oath of Office provision in
the Constitution for the United States of America, as
lawfully amended ("U.S. Constitution"), Article VI, Clause 3 ("6:3"), in violation of the Supremacy Clause.
After finding new Counsel, Appellant prepared a
comprehensive set of FOIA requests for certified copies of the
official credentials of all government actors who had touched the
instant case in any way, specifically including employees of the
judicial branch of the United States (federal government).
Uncertified documents are not admissible. See Full Faith and
Credit Clause; 28 U.S.C. 1738-1742; Federal Rules of Evidence.
Certified copies of said FOIA requests were entered into
evidence, in Appellant's NOTICE AND DEMAND FOR MANDATORY JUDICIAL
NOTICE, pursuant to Rule 201(d) of the Federal Rules of Evidence.
Again, the term "shall" as used therein has a mandatory,
imperative meaning, over which the USDC could exercise no lawful
discretion whatsoever, except to rule upon a proper and timely
motion to strike, submitted by opposing party(s). See Petition
Clause. No motion to strike was ever made by opposing party(s).
Appellant’s Opening Brief: Page 19 of 50
All FOIA requests for the credentials of judicial branch
employees took careful note of the so-called blanket exemption
for the federal judiciary which is found at 5 U.S.C. 551(A) and
(B) (i.e. not an "agency"), and Appellant timely challenged same.
Appellant's challenge is based, in part, upon Appellant's
construction of the original Thirteenth Amendment (1819), which
bars federal officers and employees from exercising privileges
which are not specifically enumerated in the U.S. Constitution,
and, in part, upon Appellant's belief that the blanket FOIA
exemption for the Judiciary is overly broad and violates the Oath
of Office, and Supremacy Clause, provisions in the U.S.
Constitution. See Article VI, Clauses 2 and 3 ("6:2", "6:3");
Article V; 28 U.S.C. 453, 951; 5 U.S.C. 3331 in pari materia.
There is a strong presumption in favor of public access to
judicial records. See Valley Broadcasting Co. v. USDC, 798 F.2d
1289 (9th Cir. 1986). Silence activates estoppel, Carmine supra;
silence is also a fraud, where there is a legal or a moral duty
to speak. See U. S. v. Tweel, 550 F.2d 297, 299 (5th Cir. 1977).
Appellant argues that the Oath of Office is a matter of
constitutional importance, and 6:3 activates said legal and moral
duties to exhibit requisite credentials, when properly requested.
Moreover, failure to qualify by filing a bond and taking the oath
of office is ground for ouster [sic] by Quo Warranto. See 51
C.J. p. 319, n. 65; 74 C.J.S. p. 193, n. 11; State v. Bernoudy,
36 Mo. 279 (1865); Respublica v. Wray, 2 Yeates (Pa.) 429 (1799);
State v. Christensen, 35 P.2d 775 at 782, 84 Utah 185 (1934).
In general, the presiding judge of any district court is
presumed to have executed the solemn Oath of Office required of
Appellant’s Opening Brief: Page 20 of 50
him (her) by Article VI, Clause 3 ("6:3") and by 28 U.S.C. 453.
This Oath is like an on-off light switch in that, per force, its
execution activates all the guarantees in the federal and state
constitutions, without exception. Fiat lux et lux erat in mundo.
This causal connection between those guarantees and a judge's
Oath of Office is tersely expressed as follows:
A district judge is bound by oath of office to uphold the
Constitutions of the United States and the State of Hawaii;
rule excluding illegally seized evidence falls within scope
of such oath as such rule is a sanction essential to
upholding federal and state constitutional safeguards
against unreasonable searches and seizures. State v.
Wilson, 519 P.2d 228 [1974].
[emphasis and year added]
[American Digest System, Eighth Decennial Digest]
["Judges", page 969, Section 5: "Qualifications"]
Therefore, using this elegant logic, all Rights which are
guaranteed by the state and federal constitutions are sanctions
which fall within the scope of the Oath. The guarantee of Due
Process of Law, as found in the Fifth Amendment, is a Right which
is on a par with a multitude of all other Rights guaranteed by
those constitutions, whether or not they are enumerated.
Together, the 9th and 10th Amendments provide explicit guarantees
for that multitude, without any need to enumerate them.
Applying these principles to the instant case is not
difficult. Appellant designed a single deadline for exhaustion
of all FOIA administrative remedies, and for production of all
certified documents demanded in Appellant's NOTICE AND DEMAND FOR
PROOF OF POWER, STANDING, AND JURISDICTION IN THE PARTICULARS.
When this deadline passed without exhibition by any
government actors of any of the documents requested, Appellant
testified to this default in His AFFIDAVITS OF DEFAULT AND OF
PROBABLE CAUSE. See 28 U.S.C. 1746(1) (the "outside" option).
Appellant’s Opening Brief: Page 21 of 50
Appellant submits that the passage of this deadline provided
Appellant with sufficient probable cause to remove the Criminal
Case from the USDC into the DCUS, whereupon Appellant petitioned
a three-judge DCUS panel for a Warrant of Removal.
See Appellant's VERIFIED PETITION FOR WARRANT OF REMOVAL BY
THREE-JUDGE PANEL: JURY TRIAL DEMANDED; all other authorities
therein; FRCP Rule 38 in chief; Seventh Amendment. See also 28
U.S.C. 1631 and 2402, in pari materia. Appellant's PETITION FOR
WARRANT OF REMOVAL properly and timely demanded a jury trial, in
view of the exception which is found in 28 U.S.C. 2402, to wit:
[A]ny action against the United States under section 1346(1)
shall, at the request of either party to such action, be
tried by the court with a jury.
The corresponding section of 28 U.S.C. 1346, United States as
defendant, reads as follows:
(a) The district courts shall have original jurisdiction,
concurrent with the United States Court of Federal Claims,
of:
(1) Any civil action against the United States for the
recovery of any internal-revenue tax alleged to have been
erroneously or illegally assessed or collected, or any
penalty claimed to have been collected without authority or
any sum alleged to have been excessive or in any manner
wrongfully collected under the internal-revenue laws; ....
[28 U.S.C. 1346(a)(1), emphasis added]
Appellant committed a harmless error by failing to cite 1346
in His PETITION FOR WARRANT OF REMOVAL, and hereby respectfully
requests leave of this Court to amend same nunc pro tunc.
At this crucial juncture, Appellant respectfully directs the
attention of this Court to the following pivotal paragraph from
the REPORT & RECOMMENDATION prepared and filed in the instant
case by Mr. Franklin L. Noel on August 9, 1996, quoting verbatim:
Appellant’s Opening Brief: Page 22 of 50
9. Defendant challenges the authority of the United States
government to collect income taxes from its citizens [sic].
Section 1 of the Internal Revenue Code imposes a tax on the
income of "every individual" (e.g. I.R.C., Section 1 (c)),
which applies to "every individual who is a citizen or
resident of the United States." (Treas.Reg. Sec. 1-1-
1(a)(1) [sic]). See, e.g., Denison v. Commissioner, 751
F.2d 241, 242 (8th Cir. 1984), cert. denied, 471 U.S. 1069
(1985); Lively v. Commissioner, 705 F.2d 1017 (8th Cir.
1983). This is done under the authority of Congress "to lay
and collect taxes". U.S. Const., Art. 1, Sec. 8; Id.,
Amend. XVI. Defendant is a citizen of, and resides within,
the United States. See U.S. Const. Amend. XIV Sec. 1. The
Sixteenth Amendment of the United States Constitution and
the tax laws pursuant to it represent the law of the land to
which the defendant, as a citizen of the United States
[sic], is subject. His motion to quash fails on this ground.
Appellant submits this paragraph as pivotal evidence of the
requisite "authority" which the federal judiciary have formally
claimed in the instant case. Appellant will now demonstrate
numerous fatal errors which were made in said paragraph:
(1) Appellant is not a citizen of the United States [sic],
by Right of Election (see thorough discussion supra);
(2) the regulations at 26 CFR 1.1-1(a) thru (c) are overly
broad for creating specific liabilities which are not
authorized by any statutes within the Internal Revenue
Code ("IRC");
(3) IRC section 1(c) does not create a specific liability
either for "citizens of the United States" or for
"residents of the United States", nor does said section
impose any specific liabilities upon Citizens of the
several states of the Union, as such;
(4) Appellant is not a resident of the United States,
because the term "United States" as used in 26 CFR 1.1-
1(c) means the federal zone;
(5) the regulations at 26 CFR 1.1-1(a) thru (c) are overly
broad for creating specific liabilities which are not
authorized by any statutes within the IRC;
(6) the authority at Article I, Section 8, cannot be
exercised in violation of other provisions which govern
the imposition of direct federal taxes within the
several states of the Union, at 1:2:3 and 1:9:4;
(7) the so-called 16th amendment [sic] was never lawfully
ratified, as proven by conclusive, unrebutted evidence
filed in the case of People v. Boxer, California
Supreme Court, case number #S-030016, December 1992;
Appellant’s Opening Brief: Page 23 of 50
(8) even if it had ever been lawfully ratified, the so-
called 16th amendment [sic] did not repeal the
prohibitions against direct federal taxes within the
several states of the Union at 1:2:3 and 1:9:4, and
repeals by implication are not favored;
(9) the so-called 14th amendment [sic] was never lawfully
ratified either, as proven by conclusive, unrebutted
evidence filed and judicially recognized in the case of
Dyett v. Turner, 439 P.2d 266, 270 (1968) (begin
reading where "General Lee had surrendered ....");
(10) although the IRC embraces tax laws which appear to have
been enacted pursuant to the so-called 16th amendment,
the constitutional restrictions on direct and indirect
taxes do not operate upon taxes which Congress imposes
within the federal zone, pursuant to the Downes
Doctrine infra;
(11) under the Downes Doctrine, the Constitution of the
United States, as such, does not extend beyond the
limits of the states which are united by and under it;
(12) the Downes Doctrine was further extended in Hooven &
Allison v. Evatt, 324 U.S. 652 (1945), when the Supreme
Court ruled that the guarantees of the Constitution
extend to the federal zone only as Congress makes those
guarantees applicable, by statutes;
(13) by opting to create a legislative democracy within the
federal zone, as opposed to a Constitutional Republic,
Congress has intentionally avoided extending into the
federal zone, and to all federal citizens who owe
allegiance to that zone, the apportionment and
uniformity restrictions which apply within the several
states and immunize Citizens of the several states;
and,
(14) for all of these reasons, and for many others which
Appellant has thoroughly documented in the official
record of the trial court below, the IRC is a municipal
Code which is enforceable within the federal zone, and
upon the citizens and residents of that zone, but only
within the questionable rubric of the Downes Doctrine,
or special cases as described in T.D. 2313.
The final proof of point 14 above is found in the exhaustive
analysis of the IRC which was accomplished, and published, in the
work entitled The Federal Zone: Cracking the Code of Internal
Revenue. See Appendix "P" (under separate cover). An electronic
Seventh Edition is submitted as an essential Exhibit appended to
Appellant’s Opening Brief: Page 24 of 50
this Opening Brief, to save paper, to demonstrate Appellant's
good faith, and respectfully to honor 8th Circuit local Rule
28A(j): Incorporation by Reference, in the instant cases, to wit:
(j) Incorporation by Reference. A party may not
incorporate by reference the contents of a brief filed
elsewhere.
Appellant has no other efficient, or more respectful, way to
demonstrate the vast preponderance of conclusive evidence which
has been amassed in The Federal Zone, particularly as that book
addresses the pivotal decision of the U.S. Supreme Court in
Brushaber v. Union Pacific Railroad Company, 240 U.S. 1 (1916),
and the all important Treasury Decision ("T.D.") 2313 which
followed immediately upon the decision in Brushaber supra.
Appellant submits that the vagueness and ambiguities which
were introduced deliberately into the federal income tax system
have resulted in a set of laws, statutes, regulations, rules,
forms, practices, policies, procedures, and customs which are so
terribly complex and intentionally deceptive, that the average
federal citizen is very far from ever being able to understand,
or decipher, the real meaning and intent of it all. These were
the very same persons who were asked to render a verdict against
Appellant in the instant case. Lex non cogit impossibilia.
The combined result of this massive fraud is a travesty and
a tragedy of the worst kind, because Appellant has succeeded in
proving herein that there are, in fact, more than two hundred
million Americans who find themselves situated in exactly the
same position as Appellant. And that position is one in which
the American People must now struggle daily, hourly, sometimes
minute-by-minute, in the face of an ugly and premeditated
Appellant’s Opening Brief: Page 25 of 50
extortion racket which now pervades the entire Land (both zones),
in blatant violation of the fundamental principles which were set
down more than two centuries ago in the supreme Law of this Land.
Those principles have withstood every single challenge which
has been mounted against their supremacy since they were first
consecrated into Law on June 21, 1788, the first day of summer,
the longest day of the year, Counselor's birthday, and the first
day on which freedom had, at long last, become The Primary
Principle upon which Our unique government was founded and
dedicated, the day on which God's generous light from His intense
burning Sun would shine the longest, and remain that way forever.
Freedom. Oh, Freedom! Quo vadis, Freedom? Quo vadis?
As against these immensely moving principles, which federal
government employees now shirk at their own great loss, Appellant
returns to the incredibly accurate prediction in Justice Harlan's
courageous protest to the dangerous perils of the Downes Doctrine
in Downes v. Bidwell infra. Long live protest! Quoting now:
The idea prevails with some -- indeed, it found expression
in arguments at the bar -- that we have in this country
substantially or practically two national governments; one,
to be maintained under the Constitution, with all its
restrictions; the other to be maintained by Congress
outside and independently of that instrument, by exercising
such powers as other nations of the earth are accustomed to
exercise.
[Downes v. Bidwell, 182 U.S. 244 at 380 (1901)]
[Harlan dissenting, emphasis added]
To appreciate how alarmed Justice Harlan had become as a result
of this new "theory", consider the following from His dissent:
I take leave to say that if the principles thus announced
should ever receive the sanction of a majority of this
court, a radical and mischievous change in our system of
government will be the result. We will, in that event, pass
from the era of constitutional liberty guarded and protected
by a written constitution into an era of legislative
absolutism. ...
Appellant’s Opening Brief: Page 26 of 50
It will be an evil day for American liberty if the theory of
a government outside of the supreme law of the land finds
lodgment in our constitutional jurisprudence. No higher
duty rests upon this court than to exert its full authority
to prevent all violation of the principles of the
Constitution.
[Downes v. Bidwell, 182 U.S. 244 at 379-382]
[(1901), Harlan dissenting, emphasis added]
The United States will now take careful note that We, the
People of the United States of America, will not sit idly by, and
witness the systematic destruction and premeditated violation of
everything which We hold most dear. The principles We uphold
herein, have been upheld by many courts of this great Nation;
they were reiterated in People v. Boxer supra as follows:
A practice condemned by the Constitution cannot be saved by
historical acceptance and present convenience.
[U.S. v. Woodley, 726 F.2d 1328, 1338 (9th Cir. 1984)]
[emphasis added]
It is obviously correct that no one acquires a vested or
protected right in violation of the Constitution by long
use, even when that span of time covers our entire national
existence and indeed predates it.
[Walz v. Tax Commission of New York City,]
[397 U.S. 664 at 678 (1970), emphasis added]
(E) The federal removal statutes at 28 U.S.C. 1441 et seq.
are unconstitutional as a group for commingling
references to the United States District Court ("USDC") with the District Court of the United States ("DCUS"). The summary remands authorized by 28 U.S.C. 1447(d) are
likewise unconstitutional for being overly broad, for
conflicting with 28 U.S.C. 1441(e), and for depriving
litigants of an essential remedy, when a federal cause
of action is clearly present by virtue of the FOIA, in
violation of the Due Process Clause of the Fifth
Amendment, and two international human Rights treaties
which guarantee courts of competent jurisdiction and
judicial officers with requisite qualifications.
The USDC lacked jurisdiction over the subject matter because
the record does not exhibit the authorizations required by IRC
7401. Because specific FOIA requests were not answered, there is
no conclusive evidence on the record that the U.S. Attorney
Appellant’s Opening Brief: Page 27 of 50
General, the Secretary of the U.S. Department of the Treasury, or
their lawful delegates, authorized or sanctioned Appellant's case
in the USDC. No such evidence was ever served on Appellant:
Thus, where the Congress prohibits the commencement of a
civil action unless certain specific acts are performed,
this Court has no jurisdiction over the subject matter until
the requisite conditions are met in fact and such compliance
is shown by the pleadings and, where necessary, established
by proof. ... [B]ut the mere allegation of facts necessary
for jurisdiction without supporting proof is fatally
defective. ... This Court holds that 26 U.S.C. Section 7401
requirements constitute facts essential to jurisdiction.
The failure to prove jurisdictional facts when specifically
denied is fatal to the maintenance of this action.
[U.S.A. v. One 1972 Cadillac Coupe De Ville]
[355 F.Supp. 513, 515 (1973), emphasis added]
Likewise, even if IRC 7402 had ever taken effect, it clearly
grants specific authorities to the "district courts of the United
States" [sic] ("DCUS") at 7402(a), 7402(b), 7402(c), and 7402(f).
The USDC is only mentioned at 7402(e):
(e) To quiet title.
The United States district courts [sic] shall have
jurisdiction of any action brought by the United States
[sic] to quiet title to property if the title claimed by the
United States [sic] to such property was derived from
enforcement of a lien under this title. [emphasis added]
IRC 7402(d) was repealed by P.L. 92-310, title II, section
230(d), June 6, 1972. See 1 U.S.C. 1 et seq.
The jurisdiction of federal courts is defined in the U.S.
Constitution at Article III for judicial courts; in Article I
for legislative courts; and in Article IV for territorial
courts. Some courts created by Acts of Congress have been
referred to as "Constitutional Courts", whereas others are
regarded as "Legislative Tribunals". O'Donoghue v. U.S., 289
U.S. 516 (1933), 77 L.Ed. 1356, 53 S.Ct. 74; Mookini v. U.S.,
303 U.S. 201 at 205 (1938), 82 L.Ed. 748, 58 S.Ct. 543.
Appellant’s Opening Brief: Page 28 of 50
The USDC is a legislative, territorial tribunal.
Legislative court judges do not enjoy Article III guarantees;
"inherently judicial" tasks must be performed by judges deriving
power under Article III. See U.S. v. Saunders, 641 F.2d 659
(1981), cert. den. 101 S.Ct. 3055, 452 U.S. 918, 69 L.Ed. 422.
Creation and composition of the USDC were accomplished by
Acts of Congress on June 25, 1948 [62 Stat. 895], and November
13, 1963 [77 Stat. 331], currently codified at 28 U.S.C. 132;
and the jurisdiction thereof is strictly limited by IRC 7402 to
actions brought by the United States [sic] to quiet title to
property if the title claim by the United States to such property
was derived from enforcement of a lien under Title 26, U.S.C.
Acts of Congress creating the USDC do not vest said
territorial tribunals with general criminal jurisdiction; these
courts have only such jurisdiction as is conferred upon them by
Act of Congress under the Constitution. See Hubbard v. Ammerman,
465 F.2d 1169 (5th Cir. 1972), cert. den. 93 S.Ct. 967, 410 U.S.
910, 35 L.Ed.2d 272. See IRC 7402(e) quoted supra, Page 28.
The USDC is not a court of general jurisdiction, and has no
other power bestowed upon it, except as prescribed by Congress.
See Graves v. Snead, 541 F.2d 159 (6th Cir. 1976), cert. den. 97
S.Ct. 1106, 429 U.S. 1093, 51 L.Ed.2d 539. Confer at "Inclusio
unius est exclusio alterius" in Black's supra.
It is apparent that the USDC for the District of Minnesota
was created and established under 28 U.S.C. 132, and its
jurisdiction is defined and limited by Chapter 85 of Title 28,
U.S.C. The Historical and Statutory Notes under 28 U.S.C. 132
contain the following important qualification, in the section
Appellant’s Opening Brief: Page 29 of 50
entitled "Continuation of Organization of Court", to wit:
Section 2(b) of Act June 25, 1948, provided in part that the
provisions of this title [sic] as set out in section 1 of
said Act June 25, 1948, with respect to the organization of
the court, shall be construed as a continuation of existing
law ....
[emphasis added]
The distinction between the USDC and the DCUS dates at least
from American Insurance infra in the year 1828, and Title 28,
U.S.C., expressly continues that law. The Act of June 25, 1948,
contains the following corresponding language, to wit:
(b) The provisions of title 28, Judiciary and Judicial
Procedure, of the United States Code, set out in section 1
of this Act, with respect to the organization of each of the
several courts therein provided for ... shall be construed
as continuations of existing law. ... 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. [emphasis added]
Appellant submits the following construction of this provision of
the Act of June 25, 1948:
No loss of rights shall result from its enactment;
No interruption of jurisdiction shall result from its
enactment; and,
No prejudice to matters pending in any of such courts on the
effective date of this Act shall result from its enactment.
The truth is that the United States District Court ("USDC")
is designed to adjudicate matters that arise within the federal
zone, and the District Court of the United States ("DCUS") is
designed to adjudicate matters that arise within the state zone.
See U.S. v. Lopez, 115 S.Ct. 1624 (1995), Kennedy concurring.
There is a distinct and definite difference between a
"United States District Court" ("USDC") and a "District Court of
the United States" ("DCUS"). The words "District Court of the
United States" commonly describe constitutional courts created
under Article III of the Constitution, not the legislative courts
Appellant’s Opening Brief: Page 30 of 50
which have long been the courts of the Territories. See
International Longshoremen's & Warehousemen's Union v. Juneau
Spruce Corp., 342 U.S. 237 at 241, 96 L.Ed. 275 (1952).
The term "District Court of the United States" commonly
describes Article III courts, or "courts of the United States",
and not legislative courts of the territories. See American
Insurance Co. v. 356 Bales of Cotton, 1 Pet. 511 (1828), 7 L.Ed.
242; International Longshoremen's and Warehousemen's Union v.
Wirtz, 170 F.2d 183 (9th Cir. 1948), cert. den. 336 U.S. 919, 93
L.Ed. 1082, 69 S.Ct. 641, reh. den. 336 U.S. 971, 69 S.Ct. 936.
Though the judicial system set up in a territory of the
United States is a part of federal jurisdiction, the phrase
"court of the United States", when used in a federal statute, is
generally construed as not referring to "territorial courts".
See Balzac v. Porto Rico [sic], 258 U.S. 298 at 312 (1922), 42
S.Ct. 343, 66 L.Ed. 627. In Balzac supra, the high Court stated:
The United States District Court is not a true United States
court established under Article III of the Constitution to
administer the judicial power of the United States therein
conveyed. It is created by virtue of the sovereign
congressional faculty, granted under Article IV, Section 3,
of that instrument, of making all needful rules and
regulations respecting the territory belonging to the United
States. The resemblance of its jurisdiction to that of true
United States courts in offering an opportunity to
nonresidents of resorting to a tribunal not subject to local
influence, does not change its character as a mere
territorial court.
[emphasis added]
The distinction within the dual nature of the federal court
system is also noted in 18 U.S.C. 3241, which states that the
United States District Court ("USDC") for the Canal Zone shall
have jurisdiction "... concurrently with the district courts of
the United States [sic], of offenses against the laws of the
United States committed upon the high seas" [emphasis added].
Appellant’s Opening Brief: Page 31 of 50
Singular and plural refer to one and the same entities. See
1 U.S.C. 1 et seq. for rules of Title construction.
This distinction is the reason why federal jurisdiction over
prosecutions is more than a technical concept; it is a
Constitutional requirement. See U.S. v. Johnson, 337 F.2d 180
(4th Cir. 1964), aff'd 383 U.S. 169 (1966), 86 S.Ct. 749, 15
L.Ed.2d 681, cert. den. 87 S.Ct. 44, 134, and 385 U.S. 846, 17
L.Ed.2d 77, 117.
The distinction between the "district courts of the United
States" and "United States district courts" is also readily
apparent in the section of Title 18 dealing with civil remedies
for activities prohibited by 18 U.S.C. 1962 (i.e. racketeering).
Subsection (a) of 18 U.S.C. 1964 makes explicit reference to the
Article III "district courts of the United States", as follows:
(a) The district courts of the United States shall have
jurisdiction to prevent and restrain violations of section
1962 of this chapter by issuing appropriate orders ....
[emphasis added]
Subsection (c) of 18 U.S.C. 1964 makes explicit reference to the
Article IV "United States district court", as follows:
(c) Any person injured in his business or property by
reason of a violation of section 1962 of this chapter may
sue therefor in any appropriate United States district court
.... [emphasis added]
The language of these two subsections is almost identical in
scope, with the important difference resulting from an apparent
need to legislate separate and distinct court authorities for the
Article III and for the Article IV forums, respectively.
Inclusio unius est exclusio alterius. See also 28 U.S.C. 1441 et
seq., in which Congress appears to have confused the USDC with
the DCUS throughout the removal statutes codified therein.
Appellant’s Opening Brief: Page 32 of 50
This finding, again, raises the all important question of
original jurisdiction. The USDC could not sentence Appellant
without subject matter jurisdiction. Appellant was under duress
of incarceration when Appellant petitioned the USDC for a release
pending appeal. Mr. Rosenbaum evidently ignored, or deferred,
Appellant's PETITION to the DCUS for a WARRANT OF REMOVAL BY A
THREE-JUDGE PANEL. The record shows that Mr. Rosenbaum did,
finally, acknowledge Appellant's FOIA suit, which specifically
named Mr. Rosenbaum as one of several Respondents in the DCUS.
Appellant hereby protests the great lengths to which Mr.
Rosenbaum evidently went to ignore the removal statutes which are
found at 28 U.S.C. 1441 et seq. By way of demonstrating newly
found evidence of confusion and duplicity in the federal laws in
question, Appellant submits the following specific citations for
the careful consideration of this honorable Court:
28 U.S.C. 1441(a) "district court of the United States"
28 U.S.C. 1441(d) "district court of the United States"
28 U.S.C. 1442(a) "district court of the United States"
28 U.S.C. 1443 "district court of the United States"
28 U.S.C. 1444 "district court of the United States"
28 U.S.C. 1445(a) "district court of the United States"
28 U.S.C. 1445(b) "district court of the United States"
28 U.S.C. 1445(c) "district court of the United States"
28 U.S.C. 1445(d) "district court of the United States"
28 U.S.C. 1446(a) "district court of the United States"
28 U.S.C. 1446(c)(1) "United States district court" [sic]
28 U.S.C. 1446(c)(2) "United States district court" [sic]
28 U.S.C. 1446(c)(4) "United States district court" [sic]
28 U.S.C. 1446(c)(5) "United States district court" [sic]
28 U.S.C. 1448 "district court of the United States"
28 U.S.C. 1449 "district court of the United States"
28 U.S.C. 1450 "district court of the United States"
Appellant hereby challenges all federal removal statutes, as
a group, for being void for vagueness in violation of the Sixth
Amendment, Nature and Cause Clause. See 28 U.S.C. 1441 thru 1452
[emphasis added supra]; Balzac supra; American Insurance supra.
Appellant’s Opening Brief: Page 33 of 50
Said statutes also evidence negligence and fraud on the part
of Congress. The fraud is demonstrated by an unlawful intent to
extend the territorial and subject matter jurisdictions of the
USDC into the several states of the Union, over which the DCUS
has original jurisdiction with respect to said territory and
subject matters. The removal statutes evidence the fraud, in
violation of the Petition Clause, the Fifth and Tenth Amendments.
Recent research has also proven that the federal judiciary
has also sabotaged the U.S. Constitution and corrupted laws
governing the conduct of the federal courts. This has been done
in part by creating the false impression that the USDC has
territorial and subject matter jurisdiction within the several
states of the Union, particularly over criminal prosecutions,
when it does not. See Supremacy Clause; human Rights treaties.
The truth is that the USDC is designed to adjudicate matters
that arise within the federal zone, and the DCUS is designed to
adjudicate matters that arise within the state zone (not the
"State" zone). See 31 CFR 51.2 and 52.2 ("State" and "state").
Pursuant to the definition at 28 U.S.C. 1451(2), the USDC is
a "State" court as defined therein, because said USDC is a
legislative tribunal domiciled in the District of Columbia and
convened under authority of 4:3:2 (i.e. a territorial court).
Appellant respectfully requests this honorable Court to
compare two important removal statutes which are available to all
civil litigants. 28 U.S.C. 1441(b) contains a clear, general
restatement of the original jurisdiction of the DCUS, without any
requirement that the removing party(s) be defendant(s) or
plaintiff(s), to wit:
Appellant’s Opening Brief: Page 34 of 50
(b) Any civil action of which the district courts have
original jurisdiction founded on a claim or right arising
under the Constitution, treaties or laws of the United
States shall be removable without regard to the citizenship
or residence of the parties.
[28 U.S.C. 1441(b), emphasis added]
The above statute makes absolutely no mention whatsoever of
a "defendant", "defendants", "plaintiff", or "plaintiffs". In
clear contrast to the above statute, the companion statute at
section 1441(a) does explicitly restrict its availability to
civil defendant(s) only, to wit:
(a) Except as otherwise expressly provided by Act of
Congress, any civil action brought in a State court of which
the district courts of the United States have original
jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for
the district and division embracing the place where such
action is pending.
[28 U.S.C. 1441(a), emphasis added]
Appellant relies heavily upon the rule of construction:
Inclusio unius est exclusio alterius, in order to show that
Congress omitted any references to the "defendant", "defendants",
"plaintiff", or "plaintiffs" in section 1441(b), because the
omission was intentional; specifically, it is the intent of
Congress to allow plaintiffs and defendants to remove civil
action(s) from "State" courts into the DCUS, particularly when
the DCUS has original jurisdiction that is founded on a claim or
right arising under a "law of the United States" [sic]. See the
Freedom of Information Act ("FOIA") at 5 U.S.C. 552 et seq.
The FOIA is a law of the United States. Specifically, see
the grant of original jurisdiction to the DCUS (not to the USDC)
at 5 U.S.C. 552(a)(4)(B), to enjoin the withholding of documents
properly requested under FOIA, and to order the production of
documents improperly withheld.
Appellant’s Opening Brief: Page 35 of 50
The major problem which Appellant wishes this honorable
Court to remedy is that there appears to be no statutory
authority for a Citizen of Minnesota state to remove a criminal
prosecution into the DCUS, particularly when the USDC whence it
originated does not have any criminal jurisdiction whatsoever.
See 28 U.S.C. 1446(c)(1) thru (5) supra.
It was for this reason that Appellant invoked the original
jurisdiction of the DCUS under the FOIA, specifically 5 U.S.C.
552(a)(4)(B), and petitioned the DCUS for a warrant of removal of
a "criminal" case which began in a court which evidently could
not demonstrate any criminal jurisdiction in the first instance.
See Appellant's AFFIDAVITS OF DEFAULT AND OF PROBABLE CAUSE.
Furthermore, Appellant requests this honorable Court to
enjoin any future summary remand by the DCUS of Appellant's FOIA
suit(s) back to the USDC. A summary remand would effectively
deny a judicial remedy which is Appellant's Right in the instant
cases, because the FOIA creates a federal cause of action in the
case of all documents properly requested under the FOIA, and
improperly withheld by the government actor(s) and agency(s) in
question. The burden is on these same government actor(s) and
agency(s) to justify the withholding (in more ways than one:).
Moreover, the USDC has no jurisdiction whatsoever, either
original or appellate, to enjoin the withholding of documents
properly requested by Appellant under the FOIA, and/or to order
the production of documents improperly withheld from Appellant by
the government actor(s) and agency(s) in question.
Appellant also specifically challenges the constitutionality
of 28 U.S.C. 1447(d), to wit:
Appellant’s Opening Brief: Page 36 of 50
(d) An order remanding a case to the State court from which
it was removed is not reviewable on appeal or otherwise,
except that an order remanding a case to the State court
from which it was removed pursuant to section 1443 of this
title shall be reviewable by appeal or otherwise.
Appellant hereby denies any reliance whatsoever upon section
1443, thus rendering moot the second half of section 1447(d).
However, Appellant argues that the first half of said section is
overly broad for permitting arbitrary, capricious, erroneous,
and/or injurious orders to be sustained artificially, and for
depriving litigants of remedies which are Their fundamental
Right, under the Due Process Clause of the Fifth Amendment.
It was only after the instant case was filed in the USDC,
that Appellant then decided to submit proper FOIA requests to the
U.S. Department of Justice ("DOJ"), to the Administrative Office
of the U.S. Courts in Washington, D.C., to the U.S. Department of
the Treasury, and to other agencies, for the credentials of all
government actors who had touched the instant cases in any way.
When DOJ, the Judiciary, Treasury, and all other actors and
agencies failed to produce certified copies of the requested
documents, after receipt of proper FOIA requests and appeals for
same, and after expiration of the statutory deadlines for same,
Appellant had then exhausted all administrative remedies, and was
then faced with an immediate need to invoke the court of original
jurisdiction over the FOIA. That court is the DCUS; no other
court fits the bill. See 31 CFR 51.2 and 52.2 (pre-E.O.).
Accordingly, Appellant now faces the very real prospect of
being forever deprived of Appellant's procedural Right to enforce
the FOIA upon DOJ, the Judiciary, and all other FOIA recipients.
Should a summary remand be permitted to stand and thereby to
remove the instant case back to the USDC, there will have been,
Appellant’s Opening Brief: Page 37 of 50
in that event, no litigation whatsoever on the federal questions
which arose from the original FOIA requests and appeals. This
result directly contravenes the explicit legislative intent of
the FOIA and of 28 U.S.C. 1441(e), to wit:
(e) The court to which such civil action is removed is not
precluded from hearing and determining any claim in such
civil action because the State court from which such civil
action is removed did not have jurisdiction over that claim.
Appellant submits, for the careful consideration of this
honorable Court, that section 1441(e) applies directly, and
unequivocally, to the instant cases, particularly with respect to
judicial enforcement of the FOIA. This is so, precisely because
the USDC from which Appellant sought to remove the instant case
does not have any jurisdiction whatsoever over FOIA enforcement.
Therefore, the DCUS is not precluded from hearing and
determining Appellant's claim upon judicially compelled discovery
of the documents requested in the original FOIA requests and
appeals, e.g. credentials, such as Appointment Affidavits, Oaths
of Office, and delegations of authority to the offices claimed.
See, in particular, 6:3; 28 U.S.C. 453, 951; and 5 U.S.C. 3331.
When examined against this clear and unequivocal Right,
which is enforceable by the FOIA, the restriction found at
section 1447(d) cannot stand on its own, nor can it be applied in
the instant cases, because said section confounds, if it does not
directly contradict, the procedural Right(s) which are recognized
by section 1441(e), and by 5 U.S.C. 552(a)(4)(B).
Section 1447(d) is particularly offensive in that it
prohibits review on appeal or otherwise. Appellant submits that
this additional qualifier -- "or otherwise" -- would logically
prohibit further judicial review of Appellant's STAY MOTION,
Appellant’s Opening Brief: Page 38 of 50
should the three-judge DCUS panel decide, under authority of
section 1447(d), to remand instead of ruling on the STAY MOTION
now pending before that panel.
Appellant is now entirely confident that Appellant, as
Plaintiff in the DCUS case, has every Right under section 1441(b)
to remove the instant proceedings into the DCUS, to enforce FOIA,
if nothing else, and to do so without regard to the citizenship
(or residence) of any of the real parties of interest.
The second half of section 1441(b) is particularly
noteworthy for containing a rare statutory reference to a
"citizen of the State [sic] in which such action is brought". In
federal laws which are replete with references to federal
citizens (i.e. "citizens of the United States"), such a reference
is rare indeed. See definition at 28 U.S.C. 1451(2), however.
It is also clear that section 1441(e) contemplates cases in
which the DCUS is empowered to remove and hear Minnesota state
cases in which there is a federal cause of action over which the
DCUS has original jurisdiction, and to transfer all other causes
of action which properly belong in a Minnesota state court, if
any. See 28 U.S.C. 1631: Transfer to cure want of jurisdiction.
As applied to the instant cases, it would be proper, for
example, for the DCUS to transfer certain judicial remedies to
the proper Minnesota state court, with a recommendation to stay
that proceeding, pending final judgment in the matter of
compelling discovery of the credentials and all other documents
which Appellant has properly requested. See 28 U.S.C. 1631.
In that way, the outcome of the instant cases could then
pivot on whether, or not, the requested credentials existed in
Appellant’s Opening Brief: Page 39 of 50
the first instance and, if they did, whether or not said
credentials should be enforced in equity; if they did not exist,
then a Minnesota state court would then be the proper forum to
adjudicate probable violations of applicable Minnesota state
criminal laws, e.g. trespass, extortion, kidnap, perjury, and
impersonating an officer, under legal standing expressly granted
to "localities" (e.g. Minnesota state) by the reservations which
Congress attached to two international human Rights treaties --
the International Covenant on Civil and Political Rights, and the
Universal Declaration of Human Rights. See 28 U.S.C. 1652.
But, such a pivotal determination would necessarily be
required to await FOIA enforcement in the DCUS, in any event, if
not also the other relief for which Appellant petitioned the DCUS
(e.g. to review the apportionment of congressional districts and
state voter registration practices).
(F) The Downes Doctrine [sic], established by a minimal
majority of the Supreme Court of the United States in
Downes v. Bidwell, 182 U.S. 244 (1901), is obsolete and
unconstitutional, for the prescient reasons stated by
Justice Harlan in His eloquent dissent in that case.
The limitations of the U.S. Constitution extend to the
farthest reaches of the known Universe, as far as
United States (federal government) officers, employees,
and contract agents are concerned. The term
"exclusive" at 1:8:17 does not mean "unrestricted."
Appellant expressly claims the fundamental Right to courts
of competent jurisdiction, with presiding judge(s) who qualify by
Law. The prohibition against taxing judicial pay is one such
qualification. See 3:1. Evans v. Gore, 253 U.S. 245 (1920), is
now controlling, notwithstanding the so-called 16th amendment,
because said "amendment" never repealed 3:1. Repeals by
implication are not favored. See U.S. v. Hicks, [cite omitted]
Appellant’s Opening Brief: Page 40 of 50
(9th Cir. 1991). The only reference to "Immunity", as such, is
found in the Clause which guarantees Privileges and Immunities to
Citizens in the several states, like Appellant. See 4:2:1.
Appellant argues that no federal judge is presently
qualified to preside on the instant cases, even for
preliminaries, whose pay is being diminished by federal income
taxes. See also Lord v. Kelley, 240 F.Supp. 167, 169 (1965),
which admitted undue influence upon federal judges by the IRS.
Evans has never been overturned (see Shepard's Citations),
notwithstanding a UCLA Law Review article which alleges the
contrary: "The Constitutional Guaranty against Diminution of
Judicial Compensation," Vol. 24, Dec. 1976, p. 308 at 332, n. 94.
C.J. William H. Rehnquist has argued, before the University of
Arizona Law School in January of 1997, that Evans supra was
overturned by O'Malley v. Woodrough, 307 U.S. 277 (1939).
Appellant disputes the main holding in O'Malley supra, for being
predicated upon the following two false and rebuttable premises:
(1) there is only one class of citizens (there are 2); and,
(2) all federal judges are citizens of either class (but no
federal law requires judges to be citizens at all).
The authority in Evans supra is particularly poignant. It
is apparent to Appellant, because of exhaustive research which
His Counselor has shared with Him, that all sitting U.S. District
Judges are appointed to serve in either an Article I, or in an
Article IV, capacity at the present time. In either capacity,
said judges do not enjoy the explicit prohibition at 3:1, to wit:
The Judges, both of the supreme and inferior Courts, shall
hold their Offices during good Behaviour, and shall, at
stated Times, receive for their Services, a Compensation,
which shall not be diminished during their Continuance in
Office.
[Article III, Section 1, emphasis added]
Appellant’s Opening Brief: Page 41 of 50
Appellant argues that the major reason why federal judges do
not now enjoy the explicit prohibition at 3:1 is the doctrine of
territorial heterogeneity. Confer in The Federal Zone: Cracking
the Code of Internal Revenue, electronic Seventh Ed.; see also
U.S. v. Lopez, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995):
Each of these [schools] now has an invisible federal zone
[sic] extending 1,000 feet beyond the (often irregular)
boundaries of the school property.
[emphasis added]
Here, the U.S. Supreme Court utilized this term as a common noun,
without any citations or footnotes. As a consequence of Lopez
supra, the term "federal zone" now has a permanent place in the
history of American constitutional jurisprudence. The doctrine
of territorial heterogeneity, as such, is summarized as follows
in the Conclusions of the book The Federal Zone, to wit:
In exercising its exclusive authority over the federal zone,
Congress is not subject to the same constitutional
limitations that exist inside the 50 States. For this
reason, the areas that are inside and outside the federal
zone are heterogeneous with respect to each other. This
difference results in a principle of territorial
heterogeneity: the areas within the federal zone are
subject to one set of rules; the areas without (or outside)
the federal zone are subject to a different set of rules.
The Constitution rules outside the zone and inside the 50
States. The Congress rules inside the zone and outside the
50 States. The 50 States are, therefore, in one general
class, because all constitutional restraints upon Congress
are in force throughout the 50 States, without prejudice to
any one State. The areas within the federal zone are in a
different general class, because these same constitutional
restraints simply do not limit Congress inside that zone.
[The Federal Zone, electronic Seventh Edition, Conclusions]
In the pivotal case of Downes v. Bidwell, 182 U.S. 244
(1901) (discussed supra at Page 26 et seq. and at several places
in the book), the U.S. Supreme Court established a doctrine
whereby the Constitution of the United States, as such, does not
extend beyond the limits of the states which are united by and
Appellant’s Opening Brief: Page 42 of 50
under it. This doctrine of territorial heterogeneity is now
commonly identified as the "Downes Doctrine" [sic].
This doctrine has been reinforced by subsequent decisions of
the U.S. Supreme Court, notably, the case of Hooven & Allison v.
Evatt, 324 U.S. 652 (1945), in which the high Court ruled that
the guarantees of the U.S. Constitution extend to the federal
zone only as Congress has made those guarantees applicable.
The one basis remaining for taxing the pay of federal judges
is the Downes Doctrine, which cannot be extended into the state
zone, nor to the judges who preside on federal courts established
for the state zone. See 3:1; Ninth and Tenth Amendments.
The Downes Doctrine is obsolete and unconstitutional.
Harlan was correct in his eloquent dissent; the limitations of
the U.S. Constitution extend to the farthest reaches of the known
Universe, as far as United States (federal government) officers,
employees, and contract agents are concerned.
The Downes Doctrine has also permitted a serious tear to rip
the entire fabric of the Republic. See Lopez supra, Kennedy
concurring. This rip is manifest in the controversy now swirling
about the proper distinction between the USDC and the DCUS, their
respective subject matter(s) and territorial jurisdiction(s).
The Downes Doctrine was attacked properly In re Grand Jury
Subpoena Served on New Life Health Center Company supra, but U.S.
District Judge John M. Roll exceeded his discretion in that case
by failing to rule on numerous proper and timely motions,
including a formal challenge to the constitutionality of the
Downes Doctrine. Appellant now brings the same challenge here.
The term "exclusive" at 1:8:17 does not mean "unrestricted".
Appellant’s Opening Brief: Page 43 of 50
(G) The Internal Revenue Code ("IRC") as a whole is unconstitutional and void for exhibiting deliberate
vagueness with respect to its territorial application.
IRC 7851(a)(6)(A) is likewise void for vagueness, for
exhibiting a recursive self-reference, and for leaving
doubt as to the meaning of the term "this title" with
respect to the legal force and effect of all provisions
within subtitle F: Procedure and Administration, of
Title 26, U.S.C., notably sections 7206, 7401, and 7402
in chief. Such doubt should be resolved in favor of
those upon whom the tax is sought to be laid. See
Nature and Cause Clause in the Sixth Amendment.
Appellees allege original jurisdiction pursuant to 26 U.S.C.
sections 7401 and 7402 [sic]. Title 26, U.S.C., and the Internal
Revenue Code ("IRC") are not one and the same, because Title 26
as such has never been enacted into positive law. See pertinent
rules for prima facie and conclusive evidence of the law, as
defined in Title 1, U.S.C. Both sections 7401 and 7402 fall
within subtitle F, which contains all the enforcement mechanisms
of the IRC. As such, said sections have never taken effect,
because IRC 7851(a)(6)(A) is controlling, to wit:
General rule. The provisions of subtitle F shall take
effect on the day after the date of enactment of this title
[sic] ....
[emphasis added]
To make matters worse, IRC 7851(a)(6)(A) also falls within
subtitle F, raising the specter of vagueness for exhibiting a
recursive self-reference. It takes effect when it takes effect!
Appellant enjoys and hereby asserts His fundamental Right to
clear and unambiguous laws. See "Void for Vagueness" doctrine;
Cruikshank supra. U.S. v. De Cadena, 105 F.Supp. 202, 204 (1952)
lists a number of excellent authorities for the origin of this
doctrine (see Lanzetta v. New Jersey, 306 U.S. 451 (1939)) and
for its development (see Screws v. United States, 325 U.S. 91
(1945), Williams v. United States, 341 U.S. 97, and Jordan v. De
George, 341 U.S. 223 (1951)). Connally infra sets the rule:
Appellant’s Opening Brief: Page 44 of 50
And a statute which either forbids or requires the doing of
an act in terms so vague that men of common intelligence
must necessarily guess at its meaning and differ as to its
application, violates the first essential of due process of
law.
[Connally et al. v. General Construction Co.]
[269 U.S 385, 391 (1926), emphasis added]
Appellant reminds this honorable Court of the discussion
supra concerning the term "this title" at 28 U.S.C. 1867(d) and
in the Historical and Statutory Notes after 28 U.S.C. 132 (see
Page 30 et seq.). There is no question but that the consistent
legislative practice is to use the term "this title" to refer to
Titles of the United States Codes (whether enacted or not).
The average American cannot be expected to have the skill
required to navigate the journey We just took through the verbal
swamps in Titles 26 and 28, U.S.C., nor does the average American
have the time and motivation required to make such a journey.
Chicanery does not make good law. The rules of statutory
construction fully support this unavoidable conclusion:
... [I]f it is intended that regulations will be of a
specific and definitive nature then it will be clear that
the only safe method of interpretation will be one that
"shall suppress the mischief, and advance the remedy, and to
suppress subtle inventions and evasions for the continuance
of the mischief ...."
[Statutes and Statutory Construction, by J. G. Sutherland]
[3rd Edition, Volume 2, Section 4007, page 280 (1943)]
The Supreme Court has also agreed, in no uncertain terms, in
Cruikshank supra (a seminal authority in at least two respects),
and as follows:
In the interpretation of statutes levying taxes it is the
established rule not to extend their provisions, by
implication, beyond the clear import of the language used,
or to enlarge their operations so as to embrace matters not
specifically pointed out. In case of doubt they are
construed most strongly against the Government, and in favor
of the citizen.
[United States v. Wigglesworth, 2 Story 369]
[emphasis added]
Appellant’s Opening Brief: Page 45 of 50
... [K]eeping in mind the well settled rule, that the
citizen is exempt from taxation, unless the same is imposed
by clear and unequivocal language, and that where the
construction of a tax law is doubtful, the doubt is to be
resolved in favor of those upon whom the tax is sought to be
laid ....
[Spreckels Sugar Refining Co. v. McLain]
[192 U.S. 397 at 416 (1904), emphasis added]
On what basis, then, should the Internal Revenue Service be
allowed to extend the provisions of the IRC beyond the clear
import of the language used? On what basis can the IRS act, when
that language has no clear import? On what basis is the IRS
justified in enlarging their operations so as to embrace matters
not specifically pointed out? The answer is tyranny. The
"golden" retriever has broken his leash and is now tearing up the
neighborhood -- to fetch the gold. What a service!
Consider for a moment the sheer size of the class of People
now affected by the fraudulent 16th amendment. First of all,
take into account all those Americans who have passed away, but
paid taxes into the Treasury after 1913. How many of those
correctly understood all the rules, when People like Frank R.
Brushaber were confused as early as 1914? Add to that number all
those Americans who are still alive today, and who have paid
taxes to the IRS because they thought there was a law, and they
thought that law was the 16th amendment. After all, they were
told as much by numerous federal officials, and possibly also
their parents, friends, relatives, school teachers, scout
masters, colleagues, and news anchors. Don't high school civics
classes now spend a lot of time teaching students how to complete
IRS forms and schedules, instead of teaching the Constitution?
Donald C. Alexander, when he was Commissioner of Internal
Revenue, published an official statement in the Federal Register
Appellant’s Opening Brief: Page 46 of 50
that the 16th amendment was the federal government's general
authority to tax the incomes of individuals and corporations.
See Chapter 1 and Appendix J in The Federal Zone. Sorry, Donald,
you were wrong. At this point in time, it is impossible for Us
to determine whether you were lying, or whether you too were a
victim of the fraud. Just how many People are in the same
general class of those affected by the fraudulent 16th amendment?
Is it 200 million? Is it 300 million? Whatever it is, it just
boggles the imagination. It certainly does involve also a very
large number of federal employees who went to work for Uncle Sam
in good faith. The tax is voluntary! Ask Senator Barbara Boxer.
It is clear, there is a huge difference between the area
covered by the federal zone, and the area covered by the 50
states. Money is a powerful motivation for all of us. Congress
had literally trillions of dollars to gain by convincing most
Americans they were inside its revenue base when, in fact, most
Americans were outside its revenue base, and remain outside even
today. This is deception on a grand scale, and the proof of this
deception is found in the Code itself. It is no wonder why
public relations "officials" of the IRS cringe in fear when
dedicated Americans admit, out loud and in Person, that They have
read the law. It is quite stunning how the carefully crafted
definitions of "United States" do appear to unlock a Code that is
horribly complex and deliberately so. As fate would have it,
these carefully crafted definitions also expose perhaps the
greatest fiscal fraud that has ever been perpetrated upon any
People at any time in the history of the world. It is now time
for a shift in the wind. Amen.
Appellant’s Opening Brief: Page 47 of 50
(5) Statement of the Case
Appellant, a Citizen of Minnesota state and expressly not a
federal citizen, was indicted by a federal grand jury of federal
citizens on two counts of filing a false federal income tax
return, alleging violations of 26 U.S.C. 7206(1).
Prior to trial, Appellant filed a proper and timely MOTION
TO STAY PROCEEDINGS, with the requisite verified statement. This
MOTION was denied. Appellant was then convicted on both counts.
Appellant then appealed to the 8th Circuit, but that appeal
was denied for lack of jurisdiction.
Appellant then retained new Counsel, who assisted Appellant
in submitting requests under the Freedom of Information ("FOIA")
for the requisite credentials of government actors, and for other
relevant evidentiary documents, to confirm requisite authorities.
Appellant also submitted a FINAL NOTICE AND DEMAND FOR PROOF
OF POWER, STANDING, AND JURISDICTION, IN THE PARTICULARS, to
which all government actors fell silent. At that moment,
Appellant testified to their default, petitioned the DCUS for a
warrant of removal by a 3-judge panel, and sued these government
actors under the FOIA for their failure to exhibit credentials.
Appellant also requested the DCUS to adjudicate Appellant's
formal challenges to the voter registration practices, and to the
apportionment of congressional districts, within Minnesota state.
Appellant was sentenced and incarcerated, despite government
attempts to bring the FOIA suit to the attention of the presiding
judge, who had already been named as a Respondent in that suit!
Jurisdiction of these two cases was transferred from the
district courts to this honorable U.S. Court of Appeals, which
now proceeds with full appellate review of all proceedings below.
Appellant’s Opening Brief: Page 48 of 50
(6) Summary of Argument
The USDC erred by denying both a motion to stay proceedings
and a motion to reconsider same. Appellant's challenge to the
Jury Selection and Service Act had serious implications for the
legality of the indicting grand jury, and the convicting petit
jury. This challenge deserved final review before trial.
Appellant was also correct to request credentials of all
government actors who touched the Criminal Case, under FOIA.
Their total silence gave Appellant probable cause to presume that
the requisite credentials did not exist, and to remove the
proceedings into the DCUS, in order to compel production of
documents improperly withheld, and to enjoin the withholding of
documents properly requested. See 5 U.S.C. 552(a)(4)(B); 6:3.
Mr. Rosenbaum also committed two serious errors: (1) by
alleging to preside over sentencing, and (2) by alleging to deny
Appellant's MOTION FOR RELEASE PENDING APPEAL, when an obvious,
adverse conflict of interest existed, violating 28 U.S.C. 455.
Appellant's civil case in the DCUS should be allowed to
proceed, to obtain pivotal declaratory relief from a competent
and qualified federal petit jury, concerning several substantive
questions of law and fact which arose in the record below.
A three-judge federal panel presiding over the DCUS should
be convened, enjoined from issuing summary remands of the cases
back to the USDC, and mandated to proceed to trial on the merits.
All of Appellant's constitutional challenges should also be
decided finally by this honorable Court, or the U.S. Supreme
Court, before any further proceedings occur in either the USDC,
or the DCUS, due to their obvious impact on matters to be decided
in those two forums.
Appellant’s Opening Brief: Page 49 of 50
(7) 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):
APPELLANT'S OPENING BRIEF
by placing one true and correct copy of said document(s) in first
class U.S. Mail, with postage prepaid and properly addressed to:
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
Courtesy copies to:
William H. Rehnquist, C.J. Clarence Thomas, J.
U.S. Supreme Court U.S. Supreme Court
One First Street N.E. One First Street N.E.
Washington [zip code exempt] Washington [zip code exempt]
DISTRICT OF COLUMBIA DISTRICT OF COLUMBIA
Paul Andrew Mitchell Alex Kozinski (supervising)
Counselor at Law, federal witness Ninth Circuit Court of Appeals
c/o 2509 N. Campbell Ave., #1776 125 S. Grand Avenue, Suite 200
Tucson [zip code exempt] Pasadena [zip code exempt]
ARIZONA STATE CALIFORNIA STATE
[See USPS Publication 221 for addressing instructions.]
Dated: __________________________________
/s/ Everett C. Gilbertson
__________________________________________
Everett C. Gilbertson, Sui Juris
Citizen of Minnesota state, federal witness
(expressly not a citizen of the United States)
All Rights Reserved without Prejudice
Appellant’s Opening Brief: Page 50 of 50
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U.S.A. v. Gilbertson, 8th Circuit