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Date: Wed, 19 Mar 1997 08:07:11 -0800
To: am-her@juno.com (Rusty Lee)
From: Paul Andrew Mitchell [address in tool bar]
Subject: USDC v. DCUS (1 of 2)
Rusty and friends,
See if this helps. See also 28 U.S.C. 132,
Historical and Statutory Notes:
"... provisions of this title ... with respect
to the organization of the court, shall be
construed as a continuation of existing law ...."
Act June 25, 1948, Section 2(b).
/s/ Paul Mitchell
p.s. Part 1 of 2 follows:
Sheila Terese, Wallen, Sui Juris
c/o General Delivery
Tucson [zip code exempt]
ARIZONA REPUBLIC
In Propria Persona
Under Protest, Necessity, and
by Special Visitation Only
UNITED STATES DISTRICT COURT
JUDICIAL DISTRICT OF ARIZONA
UNITED STATES OF AMERICA, ) Case No. 95-484-WDB
)
Plaintiff, ) NOTICE AND DEMAND
) TO DISMISS FOR LACK
v. ) OF CRIMINAL JURISDICTION
)
Sheila Terese, Wallen, ) 28 U.S.C. 1359;
) FRCP Rules 9(b),
Defendant. ) 12(b)(1),(2), 12(h)(3)
________________________________)
COMES NOW Sheila Terese, Wallen, Sui Juris, Citizen of Arizona
state and Defendant in the above entitled matter (hereinafter
"Defendant"), to demand an immediate dismissal of the instant
criminal case, with prejudice, for lack of criminal jurisdiction
to proceed in the first instance, either over the subject matter
or over the Person or property of the Defendant, and to provide
formal Notice to all interested parties of same. Defendant
hereby incorporates by reference all authorities cited in Exhibit
"A": Federal Criminal Jurisdiction, and in Her MEMORANDUM OF LAW
IN SUPPORT OF CHALLENGE TO CRIMINAL JURISDICTION OF THIS COURT
[i.e. There is none.], Rules 301, 302: Federal Rules of
Evidence, as if all were set forth fully herein.
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 1 of 17
KNOW ALL BY THESE PRESENTS:
I, Sheila Terese, Wallen, Sui Juris, and Defendant in the
above entitled matter, hereby demand that this territorial
(legislative) tribunal dismiss the instant criminal case with
prejudice because it lacks exclusive jurisdiction over the exact
geographical location where the alleged criminal activity
mentioned in the indictment is alleged to have taken place. I
was not arrested in any fort, magazine, arsenal, dockyard,
"needful building", or other federal enclave within the Arizona
Republic, nor was My Person or My private property situated
within any of the aforementioned federal areas (a/k/a the federal
zone).
A very recent U.S. Supreme Court decision, dated April 26,
1995, addressed the issue of exclusive legislative jurisdiction
of the Congress, and the powers of the federal government.
Justice Thomas, in a concurring majority opinion in U.S. v.
Lopez, 115 S.Ct. 1624 (1995), 131 L.Ed.2d 626, very clearly says:
Indeed, on this crucial point, the majority and Justice
Breyer [dissenting] agree in principle: the Federal
Government has nothing approaching a police power. Id. at
page 64.
Justice Thomas went on to discuss "a regulation of police"
at page 86, wherein he stated as follows:
U.S. v. DeWitt, 76 U.S. 41, 9 Wall. 41, 19 L.Ed 593 (1870)
marked the first time the court struck down a federal law as
exceeding the power conveyed by the commerce clause. In a
2 page opinion, the court invalidated a nationwide law
prohibiting all sales of naptha, and illuminating oils. In
so doing, the court remarked that the commerce clause "has
always been understood as limited by its terms; and as a
virtual denial of any power to interfere with the internal
trade and business of the separate states." Id. at page 44.
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 2 of 17
The law in question was "plainly a regulation of police,"
which could have constitutional application only where Congress
had exclusive authority, such as the territories. Id. pp. 44-45.
Earlier in the text, Justice Thomas, Id. at page 85, said,
"Even before Gibbons, Chief Justice Marshall, writing for the
Court in Cohens v. Virginia, 19 U.S. 264, 6 Wheat 264, 5 L.Ed 257
(1821), noted that Congress had no general right to punish murder
committed within any of the states," and that Congress could not
punish felonies generally. However, Congress could enact laws
for places where it enjoyed plenary powers, for instance, over
the District of Columbia, and whatever effect ordinary murders,
or robbery, or gun possession might have on interstate commerce
was irrelevant to the question of Congressional power.
The first Federal Criminal Act did not establish a
nationwide prohibition against murder and the like. See Act of
April 30, 1790, Chapter 9 [1 Stat. 112]; rather, only when
committed in United States territories and possessions, or on the
high seas. With the single exceptions of treason and/or
counterfeiting, and notwithstanding any of the effects which
murder, robbery, and gun possession might have on interstate
commerce, Congress understood that it could not establish
nationwide prohibitions.
Justice Thomas summed up his opinion dramatically with the
statement quoted in part herein:
If we wish to be true to a Constitution that does not cede a
police power to the Federal Government ....
(1) "All federal crimes are statutory." Doble, "Venue and
Criminal Cases in the United States District Court," Virginia Law
Review, 287, 289 (1926). " ...[O]n the other hand, since all
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 3 of 17
Federal Crimes are statutory and all criminal prosecutions in the
Federal territorial courts are based on Acts of Congress,"
Federal Rules of Criminal Procedure Rule 26, in "taking of
testimony," notes of Advisory Committee on Rules, paragraph no.
2.
(2) Rule 54, Application and Exception, paragraph (c),
Federal Rules of Criminal Procedure, "Act of Congress" includes
any act of Congress locally applicable to and in force in the
District of Columbia, in Puerto Rico, in a territory or in an
insular possession.
(3) There is no presumption in favor of jurisdiction, and
the basis for jurisdiction must be affirmatively shown. Hanford
v. Davis, 16 S.Ct. 1051, 163 U.S. 273, 41 L.Ed. 157 (1896).
(4) See exact wording of Article I, Section 8, Clause 17,
Constitution for the United States of America, which grant of
authority does not extend over every square inch of the 48
contiguous Union States.
(5) In principle, the exclusive legislative jurisdiction of
the federal government is not addressed to subject matter, but to
geographical location. See U.S. v. Bevans, 16 U.S. (3 Wheat) 336
(1818).
(6) It is axiomatic that the prosecution must always prove
territorial jurisdiction over a crime in order to sustain a
conviction therefor. U.S. v. Benson, 495 F.2d 475 at 481 (1974).
The jurisdictional challenge issue can never be waived by the
Accused, nor acquiesced by the Accused, in the absence of a
positive showing upon the record that jurisdiction was clearly
and unambiguously established.
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 4 of 17
(7) Without proof of the requisite ownership or possession
by the United States, the crime has not been made out. U.S. v.
Watson, 80 Fed. Supp. 649 (1948, E.D. Va.). Only in America can
We be forced into the status of subjects of a foreign corporation
by fiat legislation, and the stroke of a CEO's pen, at the point
of a gun, and thereby be immediately divested of standing in
judicio, and declared to be debtors and enemies of our Own
government.
(8) In criminal prosecutions, where the federal government
is the moving party, it must not only establish ownership of the
property upon which the crime was allegedly committed, but it
must also produce documentation that the state has ceded to it
jurisdiction over that property. It was held by the U.S. Supreme
Court in the case of Fort Leavenworth Railway Co. v. Iowa, 114
U.S. 525 at 531 (1885):
Where lands are acquired without such consent, the
possession of the United States, unless political
jurisdiction be ceded to them in some other way, is simply
that of an ordinary proprietor.
(9) No jurisdiction exists in the United States to enforce
federal criminal laws until consent to accept jurisdiction over
acquired lands has been published and filed in behalf of the
United States, as provided in 40 U.S.C. 255, and the fact that
the state authorized the government to take and exercise
jurisdiction was immaterial. See Adams v. United States, 319
U.S. 312, 63 S.Ct. 1122, 87 L.Ed. 1421 (1943).
(10) All courts of justice are duty-bound to take judicial
notice of the territorial extent of jurisdiction, although those
acts are not formally put into evidence, nor in accord with
pleadings. Jones v. U.S., 137 U.S. 202, 11 S.Ct. 80 (1890).
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 5 of 17
(11) Where a federal court is without jurisdiction of the
offense, judgment of conviction of the court and/or the jury is
void ab initio, on its face. Bauman v. U.S., 156 F.2d 534 (5th
Cir. 1946).
(12) Federal criminal jurisdiction is never presumed; it
must always be proven; and it can never be waived. U.S. v.
Rogers, 23 Fed. 658 (D.C., W.D. Ark., 1885).
(13) The federal courts are limited both by the Constitution
and by Acts of Congress. Owen Equip. & Erection Co. v. Kroger,
98 S.Ct. 2396, 437 U.S. 365, 57 L.Ed.2d 274 (1978).
(14) The jurisdiction of federal courts is defined in the
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.
(15) 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. Sanders,
641 F.2d 659 (1981), cert. den. 101 S.Ct. 3055, 452 U.S. 918, 69
L.Ed 422.
The United States District Court creation and composition
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, previously
demonstrated herein, i.e. Chapter 85 of Title 28, lists civil,
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 6 of 17
admiralty, maritime, patent, bankruptcy, etc., and does not once
list, mention, or describe any criminal jurisdiction. It just is
not there, so don't bother looking for it!
(16) Acts of Congress creating the United States District
Courts do not vest said territorial tribunals with any 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.
(17) The United States District Court 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.
(18) It is apparent that the United States District Court
for the District of Arizona was created and established under 28
U.S.C. 132, and its jurisdiction is defined and limited by
Chapter 85 of Title 28, United States Code.
(19) The courts of appropriate jurisdiction for violations
of Title 18 U.S.C. are designated at Section 3231, specifically
naming them as "district courts of the United States" [sic].
(20) There is a distinct and definite difference between a
"United States District Court" and a "District Court of the
United States". The words "District Court of the United States"
commonly describe constitutional courts created under Article III
of the Constitution, not the legislative courts which have long
been the courts of the Territories. See International
Longshoremen's & Warehousemen's Union v. Juneau Spruce Corp., 342
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 7 of 17
U.S. 237 at 241 (1952), 72 S.Ct. 235, 96 L.Ed. 275, 13 Alaska
536.
(21) 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, 93 L.Ed 1121,
69 S.Ct. 936.
(22) 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, 258 U.S. 298 at 312 (1921), 42 S.Ct.
343, 66 L.Ed. 627. In Balzac, 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 amere
territorial court. [emphasis added]
The distinction within the dual nature of the federal court
system is also noted in Title 18 U.S.C. 3241, which states that
the United States District Court for the Canal Zone shall have
jurisdiction "concurrently with the district courts of the United
States, of offenses against the laws of the United States
committed upon the high seas."
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 8 of 17
This distinction is the reason why federal jurisdiction over
prosecutions is more than a technical concept; it is
Constitutional requirement. See U.S. v. Johnson, 337 F.2d 180,
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.
(23) Besides the recent Lopez decision, it is interesting to
note that at least two other courts, i.e. United States District
Courts, have come to the same or similar conclusions. See U.S.A.
v. Wilson, Stambaughr, Skott, Ketchum, Braun, and Ballin, Case
No. 94-CR-140 (March 16, 1995) (U.S.D.C. Wisconsin); and U.S. v.
Kearns, Case No. SA-95-CR-201 (October 6, 1995) (U.S.D.C.,
Texas).
(24) 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 "T-Code" on
someone's Individual Master File ("IMF").
In this way, the IRS/BATF used 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).
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 9 of 17
SUMMARY
The United States District Courts 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, until and unless Congress says so. Until and unless
the 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 United States District Courts
have no criminal jurisdiction whatsoever within the 50 Union
States. Not a single Act of Congress vests the United States
District Courts, as distinct from District Courts of the United
States, with anything but "civil" authority. There is absolutely
no criminal jurisdiction vested in said territorial tribunals.
REMEDY DEMANDED
Therefore, Defendant hereby demands that this Article IV
legislative tribunal establish exclusive 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 Arizona Legislature which
provides evidence of a cession by Arizona state surrendering
jurisdiction to the "United States" (federal government) over the
same 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 same geographical location as stated in (a) above, or,
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 10 of 17
========================================================================
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
========================================================================
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