Time: Sun Mar 09 22:44:46 1997 by primenet.com (8.8.5/8.8.5) with SMTP id RAA10946; Sun, 9 Mar 1997 17:29:04 -0700 (MST) Date: Sun, 09 Mar 1997 22:42:00 -0800 To: (Recipient list suppressed) From: Paul Andrew Mitchell [address in tool bar] Subject: SLS: Notice and Demand to Dismiss IRS Conviction in USDC This is part 2 of 2. [This text is formatted in Courier 11, non-proportional spacing.] (28) Interestingly enough, in a bankruptcy case in the U.S. Bankruptcy Court, Middle District of Pennsylvania (Chapter 13), Case No. 5-94-00839, titled In re: Francis Patrick Farrell v. IRS/BATF, the alleged debtor sued out a compulsory counterclaim against the IRS/BATF after the alleged creditor submitted its proof of claim. The counterclaim showed an extent of corruption unparalleled in American history, to which agencies of the federal government will often resort, specifically by placing a fraudulent "T-Code" on Individual Master File ("IMF") records. (29) In this way, the IRS/BATF use Admiralty and Maritime forfeiture laws to deprive a state Citizen of property and assets, and to mis-classify Him as a "high level narcotics trafficker." This occurred on November 17,1995! Why? See U.S. v. Good, 114 S.Ct. 492 at 502, footnote 2 (1993). A similar mis- classification -- "Illegal Tax Protester" -- is likewise an oxymoron for violating the First Amendment (protest has never been illegal in America) and for forcing a construction that reveals an "illegal tax," for all the world to see! Notice and Demand to Dismiss for Lack of Criminal Jurisdiction: Page 10 of 18 SUMMARY The United States District Courts ("USDC") have no criminal jurisdiction whatsoever to prosecute a state Citizen within one of the 50 states of the Union which comprises the United States of America ("USA"), until and unless Congress says so. Until and unless the United States (federal government) can prove ownership over said geographical land mass, particularly that parcel of land which is the private real property of the Defendant, the USDC have no criminal jurisdiction whatsoever within any of the 50 Union states. Not a single Act of Congress vests the USDC, as distinct from the DCUS, with anything but "civil" authority. There is absolutely no criminal jurisdiction vested in said territorial tribunals, authorized by Article IV in the U.S. Constitution. Recent research has also proven that the federal judiciary has 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 United States District Court ("USDC") has territorial and subject matter jurisdiction within the several states of the Union, particularly over criminal prosecutions, when it does not. The truth is that the 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 supra. On the face of the alleged indictment served upon Defendant, the USDC is named. This is a fraud upon Defendant, and upon all American People, who enjoy the fundamental guarantee of due process of law. Sedition by syntax is not due process of law. Notice and Demand to Dismiss for Lack of Criminal Jurisdiction: Page 11 of 18 REMEDY DEMANDED Therefore, Defendant hereby demands that this Article IV legislative tribunal establish exclusive, original jurisdiction by producing certified documents consisting of the following: (a) Documentation showing "United States" (federal government) ownership of each and every geographical location mentioned in the instant indictment, wherein the alleged criminal activity took place; (b) Documentation from the Minnesota Legislature which provides evidence of a cession by Minnesota state, surrendering jurisdiction to the "United States" (federal government) over the geographical location as stated in (a) above; (c) Documentation pursuant to Title 40 U.S.C. 255, wherein the "United States" (federal government) accepted jurisdiction to the geographical location as stated in (a) above, or, documentation showing concurrent jurisdiction with Minnesota state over the geographical location as stated in (a) above; Alternatively, absent the requisite documentation, Defendant hereby demands that this USDC dismiss the instant case with prejudice and in the interests of justice, pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure. "Shall" as used therein is mandatory. Confer in Black's Law Dictionary. Dated: _______________________________________ Respectfully submitted, ______________________________________________ Everett C. Gilbertson, Sui Juris Citizen of Minnesota state (expressly not a citizen of the United States) All Rights Reserved without Prejudice Notice and Demand to Dismiss for Lack of Criminal Jurisdiction: Page 12 of 18 Exhibit "A": Federal Criminal Jurisdiction It is a well established principle of law that "all federal legislation applies only within the territorial jurisdiction of the United States unless a contrary intent appears"; see Caha v. United States, 152 U.S. 211, 215, 14 S.Ct. 513 (1894); American Banana Company v. United Fruit Company, 213 U.S. 347, 357, 29 S.Ct. 511 (1909); United States v. Bowman, 260 U.S. 94, 97, 98, 43 S.Ct. 39 (1922); Blackmer v. United States, 284 U.S. 421, 437, 52 S.Ct. 252 (1932); Foley Bros. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575 (1949); United States v. Spelar, 338 U.S. 217, 222, 70 S.Ct. 10 (1949); and United States v. First National City Bank, 321 F.2d 14, 23 (2nd Cir., 1963). And this principle of law is expressed in a number of cases from the federal appellate courts; see McKeel v. Islamic Republic of Iran, 722 F.2d 582, 589 (9th Cir., 1983) (holding the Foreign Sovereign Immunities Act as territorial); Meredith v. United States, 330 F.2d 9, 11 (9th Cir., 1964) (holding the Federal Torts Claims Act as territorial); United States v. Cotroni, 527 F.2d 708, 711 (2nd Cir., 1975) (holding federal wiretap laws as territorial); Stowe v. Devoy, 588 F.2d 336, 341 (2nd Cir., 1978); Cleary v. United States Lines, Inc., 728 F.2d 607, 609 (3rd Cir., 1984) (holding federal age discrimination laws as territorial); Thomas v. Brown & Root, Inc., 745 F.2d 279, 281 (4th Cir., 1984) (holding same as Cleary, supra); United States v. Mitchell, 553 F.2d 996, 1002 (5th Cir., 1977) (holding marine mammals protection act as territorial); Pfeiffer v. William Wrigley, Jr., Co., 755 F.2d 554, 557 (7th Cir., 1985) (holding age discrimination laws as territorial); Airline Stewards & Stewardesses Assn. v. Northwest Airlines, Inc., 267 F.2d 170, 175 (8th Cir., 1959) (holding Railway Labor Act as territorial); Zahourek v. Arthur Young and Co., 750 F.2d 827, 829 (10th Cir., 1984) (holding age discrimination laws as territorial); Commodities Futures Trading Comm. v. Nahas, 738 F.2d 487, 493 (D.C.Cir., 1984) (holding commission's subpoena power under federal law as territorial); Reyes v. Secretary of H.E.W., 476 F.2d 910, 915 (D.C.Cir., 1973) (holding administration of Social Security Act as territorial); and Schoenbaum v. Firstbrook, 268 F.Supp. 385, 392 (S.D.N.Y., 1967) (holding securities act as territorial). But, because of statutory language, certain federal drug laws operate extra-territorially; see United States v. King, 552 F.2d 833, 851 (9th Cir., 1976). The United States has territorial jurisdiction only in Washington, D.C., the federal enclaves within the States, and in the territories and insular possessions of the "United States". However, it has no territorial jurisdiction over non-federally owned areas inside the territorial jurisdiction of the States within the American Union. And this proposition of law is supported by literally hundreds of cases. As a general rule, the power of the United States criminally to prosecute is, for the most part, confined to offenses committed within "its jurisdiction". This is born out simply by examination of Title 18, U.S.C. Section 5 which defines the term "United States" in clear jurisdictional terms. Section 7 contains the fullest statutory definition of the "jurisdiction of Notice and Demand to Dismiss for Lack of Criminal Jurisdiction: Page 13 of 18 the United States" [sic]. The United States District Courts have jurisdiction of offenses occurring within the "United States", pursuant to Title 18, U.S.C., section 3231. Examples of this proposition are numerous. In Pothier v. Rodman, 291 F. 311 (1st Cir., 1923), the question involved whether a murder committed at Camp Lewis Military Reservation in the State of Washington was a federal crime. Here, the murder was committed more than a year before the U.S. acquired a deed for the property in question. Pothier was arrested and incarcerated in Rhode Island and filed a Habeas Corpus petition seeking his release on the grounds that the federal courts had no jurisdiction over an offense not committed in U.S. jurisdiction. The First Circuit agreed that there was no federal jurisdiction and ordered his release. But, on appeal to the U.S. Supreme Court, in Rodman v. Pothier, 264 U.S. 399, 44 S.Ct. 360 (1924), that Court reversed; although agreeing with the jurisdictional principles enunciated by the First Circuit, it held that only the federal court in Washington State could hear that issue. In United States v. Unzeuta, 35 F.2d 750 (8th Cir., 1929), the Eighth Circuit held that the U.S. had no jurisdiction over a murder committed in a railroad car at Fort Robinson, the state cession statute being construed as not including railroad rights- of-way. This decision was reversed in United States v. Unzeuta, 281 U.S. 138, 50 S.Ct. 284 (1930), the court holding that the U.S. did have jurisdiction over the railroad rights-of-way in Fort Robinson. In Bowen v. Johnson, 97 F.2d 860 (9th Cir., 1938), the question presented was whether jurisdiction over an offense prosecuted in federal court could be raised in a petition for Habeas Corpus. The denial of Bowen's petition was reversed in Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442 (1939), the Court concluding that such a jurisdictional challenge could be raised in a Habeas Corpus petition. But, the Court then addressed the issue, and found that the U.S. both owned the property in question and had a state legislative grant ceding jurisdiction to the United States, thus there was jurisdiction in the United States to prosecute Bowen. But, if jurisdiction is not vested in the United States pursuant to statute, there is no jurisdiction; see Adams v. United States, 319 U.S. 312, 63 S.Ct. 1122 (1943). And the lower federal courts also require the presence of federal jurisdiction in criminal prosecutions. In Kelly v. United States, 27 F. 616 (D.Me., 1885), federal jurisdiction of a manslaughter committed at Fort Popham was upheld when it was shown that the U.S. owned the property where the offense occurred and the state had ceded jurisdiction. In United States v. Andem, 158 F. 996 (D.N.J., 1908), federal jurisdiction for a forgery offense was upheld on a showing that the United States owned the property where the offense was committed and the state had ceded jurisdiction of the property to the U.S. In United States v. Penn, 48 F. 669 (E.D.Va., 1880), since the U.S. did not have jurisdiction over Arlington National Cemetery, a federal larceny prosecution was dismissed. In United States v. Lovely, 319 F.2d 673 (4th Cir., 1963), federal jurisdiction was found to exist by U.S. ownership of the property and a state cession of jurisdiction. In United States v. Watson, 80 F.Supp. 649 Notice and Demand to Dismiss for Lack of Criminal Jurisdiction: Page 14 of 18 (E.D.Va., 1948), federal criminal charges were dismissed, the court stating as follows: Without proof of the requisite ownership or possession of the United States, the crime has not been made out. 80 F.Supp., at 651. In Brown v. United States, 257 F. 46 (5th Cir., 1919), federal jurisdiction was upheld on the basis that the U.S. owned the post office site where a murder was committed and the state had ceded jurisdiction; see also England v. United States, 174 F.2d 466 (5th Cir., 1949); Krull v. United States, 240 F.2d 122 (5th Cir., 1957); Hudspeth v. United States, 223 F.2d 848 (5th Cir., 1955); and Gainey v. United States, 324 F.2d 731 (5th Cir., 1963). In United States v. Townsend, 474 F.2d 209 (5th Cir., 1973), a conviction for receiving stolen property was reversed when the court reviewed the record and learned that there was absolutely no evidence disclosing that the defendant had committed this offense within the jurisdiction of the United States. And in United States v. Benson, 495 F.2d 475 (5th Cir., 1974), in finding federal jurisdiction for a robbery committed at Fort Rucker, the court stated: It is axiomatic that the prosecution must always prove territorial jurisdiction over a crime in order to sustain a conviction therefor. 495 F.2d, at 481. In two Sixth Circuit cases, United States v. Tucker, 122 F. 518 (W.D.Ky., 1903), a case involving an assault committed at a federal dam, and United States v. Blunt, 558 F.2d 1245 (6th Cir., 1977), a case involving an assault within a federal penitentiary, jurisdiction was sustained by finding that the U.S. owned the property in question and the state involved had ceded jurisdiction. In In re Kelly, 71 F. 545 (E.D.Wis., 1895), a federal assault charge was dismissed when the court held that the state cession statute in question was not adequate to convey jurisdiction of the property in question to the United States. In United States v. Johnson, 426 F.2d 1112 (7th Cir., 1970), a case involving a federal burglary prosecution, federal jurisdiction was sustained upon the showing of U.S. ownership and cession. And cases from the Eighth and Tenth Circuits likewise require the same elements to be shown to demonstrate the presence of federal jurisdiction; see United States v. Heard, 270 F.Supp. 198 (W.D.Mo., 1967); United States v. Redstone, 488 F.2d 300 (8th Cir., 1973); United States v. Goings, 504 F.2d 809 (8th Cir., 1974) (demonstrating loss of jurisdiction); Hayes v. United States, 367 F.2d 216 (10th Cir., 1966); United States v. Carter, 430 F.2d 1278 (10th Cir., 1970); Hall v. United States, 404 F.2d 1367 (10th Cir., 1969); and United States v. Cassidy, 571 F.2d 534 (10th Cir., 1978). Of all the circuits, the Ninth Circuit has addressed jurisdictional issues more than any of the rest. In United States v. Bateman, 34 F. 86 (N.D.Cal., 1888), it was determined that the United States did not have jurisdiction to prosecute for a murder committed at the Presidio because California had never ceded jurisdiction; see also United States v. Tully, 140 F. 899 Notice and Demand to Dismiss for Lack of Criminal Jurisdiction: Page 15 of 18 (D.Mon., 1905). But later, California ceded jurisdiction for the Presidio to the United States, and it was held in United States v. Watkins, 22 F.2d 437 (N.D.Cal., 1927), that this enabled the U.S. to maintain a murder prosecution; see also United States v. Holt, 168 F. 141 (W.D. Wash., 1909), United States v. Lewis, 253 F. 469 (S.D.Cal, 1918), and United States v. Wurtzbarger, 276 F. 753 (D.Or., 1921). Because the U.S. owned, and had a state cession of jurisdiction for, Fort Douglas in Utah, it was held that the U.S. had jurisdiction for a rape prosecution in Rogers v. Squier, 157 F.2d 948 (9th Cir., 1946). But, without a cession, the U.S. has no jurisdiction; see Arizona v. Manypenny, 445 F.Supp. 1123 (D.Ariz., 1977). The above cases from the U.S. Supreme Court and federal appellate courts set forth the rule that in criminal prosecutions, the government, as the party seeking to establish the existence of federal jurisdiction, must prove U.S. ownership of the property in question and a state cession of jurisdiction. This same rule manifests itself in state cases. State courts are courts of general jurisdiction and in a state criminal prosecution, the state must only prove that the offense was committed within the state and a county thereof. If a defendant contends that only the federal government has jurisdiction over the offense, he, as proponent for the existence of federal jurisdiction, must likewise prove U.S. ownership of the property where the crime was committed and state cession of jurisdiction. Examples of the operation of this principle are numerous. In Arizona, the State has jurisdiction over federal lands in the public domain, the state not having ceded jurisdiction of that property to the U.S.; see State v. Dykes, 114 Ariz. 592, 562 P.2d 1090 (1977). In California, if it is not proved by a defendant in a state prosecution that the state has ceded jurisdiction, it is presumed the state does have jurisdiction over a criminal offense; see People v. Brown, 69 Cal. App.2d 602, 159 P.2d 686 (1945). If the cession exists, the state has no jurisdiction; see People v. Mouse, 203 Cal. 782, 265 P. 944 (1928). In Montana, the state has jurisdiction over property if it is not proved there is a state cession of jurisdiction to the U.S.; see State ex rel Parker v. District Court, 147 Mon. 151, 410 P.2d 459 (1966); the existence of a state cession of jurisdiction to the U.S. ousts the state of jurisdiction; see State v. Tully, 31 Mont. 365, 78 P. 760 (1904). The same applies in Nevada; see State v. Mack, 23 Nev. 359, 47 P. 763 (1897), and Pendleton v. State, 734 P.2d 693 (Nev., 1987); it applies in Oregon (see State v. Chin Ping, 91 Or. 593, 176 P. 188 (1918) and State v. Aguilar, 85 Or.App. 410, 736 P.2d 620 (1987)); and in Washington (see State v. Williams, 23 Wash.App. 694, 598 P.2d 731 (1979)). In People v. Hammond, 1 Ill.2d 65, 115 N.E.2d 331 (1953), a burglary of an IRS office was held to be within state jurisdiction, the court holding that the defendant was required to prove existence of federal jurisdiction by U.S. ownership of the property and state cession of jurisdiction. In two cases from Michigan, larcenies committed at U.S. Post Offices which were rented were held to be within state jurisdiction; see Notice and Demand to Dismiss for Lack of Criminal Jurisdiction: Page 16 of 18 People v. Burke, 161 Mich. 397, 126 N.W. 446 (1910) and People v. Van Dyke, 276 Mich. 32, 267 N.W. 778 (1936); see also In re Kelly, 311 Mich. 596, 19 N.W.2d 218 (1945). In Kansas City v. Garner, 430 S.W.2d 630 (Mo.App., 1968), state jurisdiction over a theft offense occurring in a federal building was upheld, and the court stated that a defendant had to show federal jurisdiction by proving U.S. ownership of the building and a cession of jurisdiction from the state to the United States. A similar holding was made for a theft at a U.S. missile site in State v. Rindall, 146 Mon. 64, 404 P.2d 327 (1965). In Pendleton v. State, 734 P.2d 693 (Nev., 1987), the state court was held to have jurisdiction over a DUI ("driving under the influence") committed on federal lands, the defendant having failed to show U.S. ownership and state cession of jurisdiction. In People v. Gerald, 40 Misc.2d 819, 243 N.Y.S.2d 1001 (1963), the state was held to have jurisdiction of an assault at a U.S. Post Office since the defendant did not meet his burden of showing presence of federal jurisdiction; and because a defendant failed to prove title and jurisdiction in the United States for an offense committed at a customs station, state jurisdiction was upheld in People v. Fisher, 97 A.D.2d 651, 469 N.Y.S.2d 187 (A.D. 3 Dept., 1983). The proper method of showing federal jurisdiction in state court is demonstrated by the decision in People v. Williams, 136 Misc.2d 294, 518 N.Y.S.2d 751 (1987). This rule was likewise enunciated in State v. Burger, 33 Ohio App.3d 231, 515 N.E.2d 640 (1986), in a case involving a DUI offense committed on a road near a federal arsenal. In Kuerschner v. State, 493 P.2d 1402 (Okl.Cr.App., 1972), the state was held to have jurisdiction of a drug sales offense occurring at an Air Force Base, the defendant not having attempted to prove federal jurisdiction by showing title and jurisdiction of the property in question in the United States; see also Towry v. State, 540 P.2d 597 (Okl.Cr.App., 1975). Similar holdings for murders committed at U.S. Post Offices were made in State v. Chin Ping, 91 Or. 593, 176 P. 188 (1918), and in United States v. Pate, 393 F.2d 44 (7th Cir., 1968). Another Oregon case, State v. Aguilar, 85 Or.App. 410, 736 P.2d 620 (1987), demonstrates this rule. And finally, in Curry v. State, 111 Tex. Cr. 264, 12 S.W.2d 796 (1928), it was held that, in the absence of proof that the state had ceded jurisdiction of a place to the United States, the state courts had jurisdiction over an offense. Therefore, in federal criminal prosecutions, the government must prove the existence of federal jurisdiction by showing U.S. ownership of the place where the crime was committed and state cession of jurisdiction. If the government contends for the power criminally to prosecute for an offense occurring outside "its jurisdiction", it must prove an extra-territorial application of the statute in question as well as a constitutional foundation supporting the same. Absent this showing, no federal prosecution can be commenced for offenses committed outside "its jurisdiction", i.e. the federal zone. # # # Notice and Demand to Dismiss for Lack of Criminal Jurisdiction: Page 17 of 18 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): NOTICE AND DEMAND TO DISMISS FOR LACK OF ANY CRIMINAL JURISDICTION WHATSOEVER: 28 U.S.C. 1359; FRCP Rules 9(b), 12(b)(1), 12(b)(2), 12(h)(3) by placing one true and correct copy of said document(s) in first class United States Mail, with postage prepaid and properly addressed to the following: Henry Shea United States Attorneys 110 South Fourth Street Minneapolis [zip code exempt] MINNESOTA STATE Attorney General Department of Justice 10th & Constitution, N.W. Washington [zip code exempt] DISTRICT OF COLUMBIA Solicitor General Department of Justice 10th & Constitution, N.W. Washington [zip code exempt] DISTRICT OF COLUMBIA Dated: ______________________________________ ______________________________________________ Everett C. Gilbertson, Sui Juris Citizen of Minnesota state (expressly not a citizen of the United States) All Rights Reserved without Prejudice [See USPS Publication #221 for addressing instructions.] Notice and Demand to Dismiss for Lack of Criminal Jurisdiction: Page 18 of 18 # # # ======================================================================== Paul Andrew, Mitchell, B.A., M.S. : Counselor at Law, federal witness email: [address in tool bar] : Eudora Pro 3.0.1 on Intel 586 CPU web site: http://www.supremelaw.com : library & law school registration ship to: c/o 2509 N. Campbell, #1776 : this is free speech, at its best Tucson, Arizona state : state zone, not the federal zone Postal Zone 85719/tdc : USPS delays first class w/o this ========================================================================
Return to Table of Contents for
Supreme Law School: E-mail