Time: Sat May 10 00:48:37 1997 by primenet.com (8.8.5/8.8.5) with ESMTP id TAA18930; Fri, 9 May 1997 19:26:58 -0700 (MST) by usr04.primenet.com (8.8.5/8.8.5) with SMTP id TAA28299; Fri, 9 May 1997 19:26:48 -0700 (MST) Date: Sat, 10 May 1997 00:48:19 -0700 To: (Recipient list suppressed) From: Paul Andrew Mitchell [address in tool bar] Subject: SLS: Allocution in U.S.A. v. Gilbertson [This text is formatted in Courier 11, non-proportional spacing.] Allocution at Sentencing Hearing scheduled for April 21, 1997 U.S.A. v. Gilbertson United States District Court District of Minnesota Fourth Division Case Number #CR-4-96-65 Allocution at Sentencing Hearing: Page 1 of 7 Allocution at Sentencing Hearing Beginning For the record, Mr. Rosenbaum, I am entering this Court expressly under protest, primarily due to a demonstrated lack of jurisdiction by the United States District Court ("USDC"). I also want the official record to show that Mr. Rosenbaum now has an adverse interest in this case, due to the First and Tenth Amendment petition which I have now served upon Mr. Rosenbaum and filed in the District Court of the United States. See 28 U.S.C. 455. To put it simply, Mr. Rosenbaum is no longer a neutral referee in a boxing match. He now wears boxing gloves in this contest, and a different neutral referee must be appointed. Until that happens, the United States federal government is depriving Me of My fundamental Right to due process of law, which is a criminal violation of 18 U.S.C. 242 and probably also 241, conspiracy to violate fundamental Rights. Furthermore, any appearance which I might give of "moving" this Court for any specific relief, and/or of "requesting" any specific relief, must be construed as a formal notice and demand upon all government actors associated with this case, whether present or not, in light of the proven lack of jurisdiction. My presence here will not be construed as a waiver of jurisdictional defects which are now plainly evident in the official record. Defects in jurisdiction cannot be waived, ever, because they can only be corrected by Acts of Congress, pursuant to the Constitution for the United States of America, as lawfully amended. Allocution All statements made by Me during this proceeding are being made under protest and under My Right of Allocution. This Right is protected by the Petition Clause of the First Amendment. I demand that all statements, made by Me here today, be entered into the record. Rule 32(a)(1) of the Federal Rules of Criminal Procedure states that the court must afford counsel for the defendant an opportunity to comment. However, Mr. Scott is presently working for the United States, quite literally, and not for Me. Therefore, he has an irreconcilable conflict of interest, not unlike that of Mr. Rosenbaum. Therefore, I am being denied effective assistance of Counsel and the fundamental Rights guaranteed by the Sixth Amendment. Allocution at Sentencing Hearing: Page 2 of 7 Based on the following facts, even if this Court had jurisdiction at some time or other, and I have proven that it does not have jurisdiction due to an unconstitutional Jury Selection and Service Act ("JSSA"), it ousted itself of jurisdiction in any event when: 1. Counsel failed to furnish Me with credentials when they were properly and timely requested by a Freedom of Information Act request for same. 2. The recent pleading entered by Mr. Scott -- Position of the Parties -- deprived Me of effective assistance of Counsel, because Mr. Scott made an unauthorized admission that betrayed Me without My permission. 3. I was denied the Right to bring in whomever I chose to be My Counsel. Mr. Scott knew, or should have known, that effective assistance of Counsel is a constitutional guarantee. When I commenced to file pleadings In Propria Persona, he should have known, at least from that point forward, that he had absolutely no power of attorney whatsoever to file pleadings under his signature, without My prior written authorization. As an officer of this Court, Mr. Scott's action in filing that unauthorized pleading was a breach of ethics and the canons of judicial conduct, and a clear violation of the law, because the record still fails to exhibit any liability statutes which applied to Me during the periods in question. Accordingly, the Supreme Court of the United States has ruled that, if effective assistance of Counsel is not provided, this Court ousts itself of jurisdiction. See Johnson v. Zerbst, 304 U.S. 458 at 468. I cannot be punished for relying upon the decisions of the Supreme Court. See U.S. v. Mason, 412 U.S. 391, 399-400 (1973). Therefore, I demand a dismissal of this case, with prejudice, for violating the clear holding of the Supreme Court of the United States in Johnson v. Zerbst supra. Nor can this Court attempt to "deny" any of the demands I do make here today, because demands are not motions, and demands go to fundamental Rights. Any attempt to "deny" any demand I make here today is practicing law, which is a high misdemeanor in violation of 28 U.S.C. 454. Criminal conduct by the presiding judge is yet another ground for dismissal, whether felony or misdemeanor. Credentials Of all the FOIA requests which I have submitted to date, not one was ever answered with certified copies of the requisite credentials of the government employees in question, or of other Allocution at Sentencing Hearing: Page 3 of 7 crucial documents requested, such as the regulations which have been published in the Federal Register, if any, for pertinent statutes as those statutes have been applied, under color of law, in the instant case. Even though I recognize that Congress has extended a blanket FOIA exemption to the entire judicial branch, I have properly challenged the constitutionality of this blanket exemption, for violating the Oath of Office provision in the U.S. Constitution. Moreover, in addition to proper FOIA requests, I have also submitted a timely Notice and Demand to Mr. Rosenbaum, to the Clerk of Court, and to the Administrative Office of the United States Courts, for the same credentials. To date, no judicial credentials have been produced either. Accordingly, I am entitled by Right to proceed on the basis of the conclusive presumption that the requisite credentials do not exist, pursuant to the doctrine of estoppel by acquiescence. See "acquiescence" and "estoppel" in Black's Law Dictionary. Silence activates estoppel, pursuant to Carmine v. Bowen, 64 A. 932 (1906). Likewise, silence in this matter is a fraud upon Me, pursuant to the case of U.S. v. Tweel, 550 F.2d 297, 299 (1977). Fraud is a cause of action for recovery of actual, compensatory, and exemplary damages, issued by a competent and qualified jury of My peers, namely, Citizens of Minnesota state who are not also citizens of the United States. Lack of Jurisdiction I have systematically tried to obtain from the United States, proof that the Plaintiffs of record have standing to sue, and they have failed to produce any proof of same. This alone is a ground to dismiss this case, with prejudice. I have systematically tried to obtain from the United States, proof that the Office of the United States Attorney has power of attorney to represent the Plaintiffs of record, and they have failed to produce any proof of same. This alone is a ground to dismiss this case, with prejudice. I have systematically tried to obtain from the United States, proof that this USDC has original jurisdiction to prosecute alleged criminal violations of Title 18, United States Code, and of the Internal Revenue Code, and they have failed to produce any proof of same. This alone is a ground to dismiss this case, with prejudice. I have testified to the absence of these crucial authorities, in My Affidavit of Default and of Probable Cause, and the United States is now estopped from producing said authorities, even if they do exist, because their window of opportunity passed, and their silence activates estoppel, and it also constitutes a fraud upon Me. See Tweel and Carmine supra. Allocution at Sentencing Hearing: Page 4 of 7 Proceeding as they have without jurisdiction gives Me verified, probable cause to complain and to charge all government actors associated with this case, whether present or not, with barratry and other applicable criminal violations of the laws of Minnesota state, specifically because these actors have not proven, as a matter of record, that they are, indeed, federal employees. See 18 U.S.C. 241, to wit: "If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States ... they shall be fined under this title or imprisoned not more than ten years or both ...." See also Title 18, United States Code, section 242 in chief. I submit to you that the demonstrated failure of these government actors to present certified evidence of their credentials, gives Me probable cause to proceed on the basis of the conclusive presumption that they do not have the requisite authorities and, therefore, I have probable cause to charge each and every one of them with violating 18 U.S.C. 241 and 242. Last but not least, the doctrines of absolute and qualified immunity only apply when these government actors proceed according to law. If this Court lacks original jurisdiction over the subject matter in the first instance, which has now been established beyond any shadow of a doubt, then such a defect cannot be waived by anything which any of the interested parties might do, or not do; and the actors in question are prevented, by law, from invoking immunity for their defense. They are, therefore, jointly and severally liable to Me for multiple violations of Title 18, and also pertinent state laws which remain unspecified at the present time. See Rankin v. Howard, 633 F.2d 844 (9th Cir. 1980). In the absence of all jurisdiction, the second prong essential to absolute judicial immunity is missing. See Stump v. Sparkman, 435 U.S. 349; Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872); Davis v. Burris, 51 Ariz. 220, 75 P.2d 689 (1938); Gregory v. Thompson, 500 F.2d 59 (C.A. Ariz. 1974). Numerous other authorities can be provided to the government actors in this case. Liability Statutes The record shows absolutely no evidence that I am a withholding agent, as that term is defined at IRC 7701(a)(16). Aside from the sections listed in this definition, the IRC has no other liability statutes for the income taxes imposed by subtitle A, in contrast to IRC sections 4401, 5005, and 5703, which do contain explicit liability provisions with respect to other taxes, for example, petroleum refiners and alcohol distillers. Allocution at Sentencing Hearing: Page 5 of 7 No lawful assessment was ever made pursuant to IRC section 6203, delegation of authority to assess. Jury Selection and Service Act I have already explained to this Court, in a filed pleading, that My first Motion to Stay Proceedings was based on incorrect information, due to errors committed by the paralegals I hired to assist Me. I have attempted to remedy these errors by re-filing the corrected pleadings, and by combining them with a proper Motion (read "Demand") for Reconsideration. I am entitled to a hearing, to reconsider My pivotal challenge to the constitutionality of the JSSA, for exhibiting class discrimination against Citizens of Minnesota state who are not also citizens of the United States, by Right of Election guaranteed by the Tenth Amendment. See Gardina v. Board of Registrars, 160 Ala. 155, 48 S. 788, 791 (1909) in particular. Moreover, I demand that this Court prepare proper and timely Findings of Fact and Conclusions of Law in the matter of My challenge to the JSSA, by way of perfecting the case file for the appeal which I plan, and fully intend, to bring in the instant case, on final judgment or upon leave to appeal interlocutory order(s). Withdrawal of Plea I hereby demand that the plea of "not guilty" be withdrawn in this case, because it was entered out of order and over My objections when Mr. Noel entered that plea for Me in a rude and disorderly fashion, while I was speaking. Notice of Appeal I hereby request that this Court immediately certify this case for appeal, pursuant to the Final Judgments Act, and instruct the Clerk of Court to prepare and file a proper Notice of Appeal, pursuant to Rule 32(c)(5) of the Federal Rules of Criminal Procedure, because I do intend to bring all major and minor issues before the United States Court of Appeals for the Eighth Circuit, in due time, and according to due process of law. Clarification of Terms My use of the phrase "Under Protest" during this proceeding indicates that I have explicitly reserved all of My Rights and: (1) that I explicitly reject any and all benefits of the Uniform Commercial Code, absent a valid commercial agreement which is in force and to which I am a party, and cite its provisions herein only to serve notice upon ALL agencies of Allocution at Sentencing Hearing: Page 6 of 7 government, whether international, national, state, or local, that they, and not I, are subject to, and bound by, all of its provisions, whether cited herein or not; (2) that My explicit reservation of Rights has served notice upon ALL agencies of government of the "Remedy" they must provide for Me under Article 1, Section 207, of the Uniform Commercial Code, whereby I have explicitly reserved My Common Law Right not to be compelled to perform under any contract or commercial agreement, that I have not entered into knowingly, voluntarily, and intentionally; (3) that My explicit reservation of Rights has served notice upon ALL agencies of government that they are ALL limited to proceeding against Me only in harmony with the Common Law and that I do not, and will not accept the liability associated with the "compelled" benefit of any unrevealed commercial agreements; and, (4) that My valid reservation of Rights has preserved all My Rights and prevented the loss of any such Rights by application of the concepts of waiver or estoppel. Thank you for your consideration. Dated: ______________________________________ Respectfully submitted, /s/ Everett C. Gilbertson ______________________________________________ Everett C. Gilbertson, Sui Juris Citizen of Minnesota state and federal witness (expressly not a citizen of the United States) All Rights Reserved without Prejudice Allocution at Sentencing Hearing: Page 7 of 7 # # # ======================================================================== 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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