Time: Sat May 31 13:11:02 1997 by primenet.com (8.8.5/8.8.5) with ESMTP id HAA23710 for [address in tool bar]; Sat, 31 May 1997 07:32:12 -0700 (MST) by usr09.primenet.com (8.8.5/8.8.5) with SMTP id HAA29674; Sat, 31 May 1997 07:27:21 -0700 (MST) Date: Sat, 31 May 1997 08:08:18 -0700 To: (Recipient list suppressed) From: Paul Andrew Mitchell [address in tool bar] Subject: SLS: Rebuttal in U.S.A. v. Knudson [This text is formatted in Courier 11, non-proportional spacing.] Vance E. Knudson, Sui Juris Citizen of Nebraska state c/o General Delivery Hastings [zip code exempt] NEBRASKA STATE In Propria Persona All Rights Reserved without prejudice UNITED STATES DISTRICT COURT DISTRICT OF NEBRASKA UNITED STATES OF AMERICA [sic], ) Case No. 4:CV96-3275 ) Plaintiff [sic], ) DEFENDANT'S REBUTTAL TO ) PLAINTIFFS' BRIEF v. ) IN OPPOSITION TO MOTION ) FOR RELIEF FROM JUDGMENT; AND VANCE E. KNUDSON [sic], ) NOTICE OF INTENT TO TRANSFER ) CASE TO COURT OF COMPETENT Defendant [sic]. ) JURISDICTION: 28 U.S.C. 1631, ________________________________) 5 U.S.C. 552(a)(4)(B) COMES NOW Vance E. Knudson, Sui Juris, Citizen of Nebraska state, expressly not a citizen of the United States ("federal citizen"), and Defendant in the above entitled matter (hereinafter "Defendant"), to submit this, Defendant's REBUTTAL TO PLAINTIFFS' BRIEF IN OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT. Defendant herein addresses issues in the order of their appearance in Plaintiffs' BRIEF IN OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT, as follows (quotes in bold): Defendant has not proffered any legitimate reason for a stay of the April 8, 1997 Judgment. Defendant argues that the value judgment implied by the term "legitimate" is controverted by the evidence already on record, and will be further controverted by testimony and additional evidence to be newly discovered during trial by jury. Rebuttal to Brief Opposing Stay and Relief from Judgment: Page 1 of 13 [D]efendant has seized upon this opportunity to reargue a number of tired, stale, tax protestor arguments [sic]. Defendant submits that the evidence recently filed in the instant case is not only new (not tired or stale), but protest has never been illegal, inappropriate, or a cause to ignore the substance of that protest. The Petition Clause in the First Amendment is rooted in protest, and the U.S. Supreme Court has already held that the Petition Clause is the Right conservative of all other Rights. See Chambers v. Baltimore & Ohio R.R., 207 U.S. 142, 148 (1907). Defendant's pleadings are petitions to government which exercise a fundamental Right not allowing dubious intrusions of any kind whatsoever. To the extent Plaintiffs seek to gag, muffle, infringe, or otherwise disparage Defendant's fundamental Right to protest government misconduct, criminal or otherwise, they deprive Him not only of a fundamental Right which is guaranteed by the First Amendment; they also deprive Defendant of all other Rights. Exposing such a consequence can hardly be considered tired, stale, illegal, obsolete, improper, frivolous (or other similar diminutive). Matters arising under the federal and state constitutions are never frivolous. See 28 U.S.C. 1652. Defendant's motion for relief from Judgment should be denied in the absence of any showing of mistake or other reason justifying relief. Defendant has made a proper showing of mistake or other reasons justifying relief. Defendant appreciates the attention which Plaintiffs have directed to FRCP Rule 38(d), which states that the failure of a party to serve and file a demand for trial by jury constitutes a waiver by the party of trial by jury. It was never Defendant's knowing or voluntary intention to waive a Rebuttal to Brief Opposing Stay and Relief from Judgment: Page 2 of 13 fundamental Right in this fashion, however. Defendant argues that this Rule must be viewed against the statute which specifically authorizes the U.S. Supreme Court to promulgate such rules. Although the U.S. Supreme Court shall have the power to prescribe general rules of practice and procedure for cases in the United States district courts [sic] (hereinafter "USDC"), pursuant to 28 U.S.C. 2072(a), compare section 2072(b) which clearly prohibits the U.S. Supreme Court from promulgating any rules which might abridge, enlarge, or modify any substantive right: 2072. Rules of procedure and evidence; power to prescribe (b) Such rules shall not abridge, enlarge or modify any substantive right. [28 U.S.C. 2072(b)] Evidently, Congress has failed to authorize the U.S. Supreme Court to promulgate corresponding rules for the District Court of the United States ("DCUS")! Confer at "Inclusio unius est exclusio alterius" in Black's Law Dictionary, Sixth Edition. Omission of the DCUS was intentional. The Right to trial by jury is a substantive, fundamental Right. See Seventh Amendment. Moreover, waivers of fundamental Rights can never be presumed by the United States (federal government), and particularly not by this USDC, nor by the DCUS. Acquiescence in the loss of fundamental Rights will not be presumed. See Ohio Bell v. Public Utilities Commission, 301 U.S. 292. Competent waivers of fundamental Rights must be knowing, intelligent, affirmative acts done with sufficient awareness of the relevant circumstances and likely consequences. See Brady v. U.S., 397 U.S. 742 at 748 (1970). Defendant has made no such Rebuttal to Brief Opposing Stay and Relief from Judgment: Page 3 of 13 waivers, notwithstanding Defendant's failure to date properly to demand trial by jury, pursuant to the provisions of Rule 38. Statutes Involved: Section 7402, Title 26, United States Code Defendant is extremely disappointed that Plaintiffs should summarily gloss over Defendant's detailed analysis of 26 U.S.C. 7402 [sic]. This provision falls within subtitle F and, as such, has never taken effect, because "this title" [sic] (Title 26, U.S.C.), has never been enacted into positive law. For proof, see Internal Revenue Code ("IRC"), section 7851(a)(6)(A). Title 26, U.S.C., and the IRC are not one and the same. See also Title 1, U.S.C., section 1 et seq. Defendant's construction of IRC 7851(a)(6)(A) is correct, because the exact same construction has already been demonstrated for the term "this title" [sic] in the Historical and Statutory Notes after 28 U.S.C. 132, to wit: ... [T]he provisions of this title 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 .... [West Publishing Co., emphasis added] Compare said language with the corresponding language from the Act of June 25, 1948, 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 .... [Act June 25, 1948, C. 646, Sections 2 to 39] [62 Stat. 985 to 991, emphasis added] Even if Title 26, U.S.C., had been enacted into positive law (which it has not), section 7402 exhibits the all important distinction between the USDC and the DCUS. Compare 7402(a), (b), Rebuttal to Brief Opposing Stay and Relief from Judgment: Page 4 of 13 (c), and (f) (which authorize only the DCUS), with 7402(e) (which authorizes only the USDC). Under IRC 7402, quiet title relief is the only subject matter of which the USDC has any jurisdiction. The instant action was not instituted in order to quiet title. Therefore, this honorable USDC has no subject matter jurisdiction whatsoever pursuant to 26 U.S.C. 7402 [sic]. [T]he pro se plaintiff, Vance E. Knudson, served his ... Motion for Stay of Execution ... and Motion for Relief from Judgment .... Vance E. Knudson is the Defendant in the instant case! As a Citizen of Nebraska state who is expressly not a citizen of the United States, by Right of Election, Defendant is now proceeding In Propria Persona, not Pro Se [sic]. "Se" is a neuter Latin pronoun which refers to objects and/or fictitious entities; Defendant is none of these. Confer at "In propria persona" in Black's Law Dictionary, Sixth Edition (with pronunciations). In pari materia, Defendant hereby enters a standing objection to the habitual use, by employees of the U.S. Department of Justice, of fictitious nommes de guerre to name the parties of interest in all civil and criminal actions which are brought before this honorable Court. Defendant does not now use, and never has used, all CAPITAL LETTERS to write or print His Proper Name. Misnomer is a plea in the nature of abatement. [D]efendant was not entitled to a jury trial in this case because this civil action, which was commenced by the United States [sic] .... [D]efendant was not entitled to a jury trial in this action brought by the United States [sic] for declaratory and injunctive relief. [T]here is no constitutional right to a jury trial in a suit against the United States [sic]. Rebuttal to Brief Opposing Stay and Relief from Judgment: Page 5 of 13 The instant case was brought by the Plaintiffs "UNITED STATES OF AMERICA" [sic], not by the "United States" [sic]. The United States of America are synonymous with the Union of several states which are united by, and under, the Constitution for the United States of America, as lawfully amended (hereinafter "U.S. Constitution"). See Preamble; confer at "Union" in Bouvier's Law Dictionary (1856). The "United States" is a term which has three (3) separate and different meanings. See Hooven & Allison Co. v. Evatt, 324 U.S. 652 (1945); confer at "United States" in Black's Law Dictionary, Sixth Edition. The United States of America have never been granted standing to sue, or be sued, in this honorable USDC. In contrast, the United States [sic] has been granted standing by Congress to sue as a civil plaintiff, pursuant to 28 U.S.C. 1345; and the United States [sic] has been granted standing by Congress to be sued as a civil defendant, pursuant to 28 U.S.C. 1346. Since the United States is not a named defendant in the instant case, the opposition brief which Defendant hereby rebuts exhibits a serious error for attempting to argue that there is no constitutional Right to a jury trial in a suit against the United States. See 28 U.S.C. 2402. This point is totally irrelevant, because the United States is neither a plaintiff nor a defendant in the instant case. Accordingly, Defendant argues that such misconduct by attorneys, alleging falsely to represent the United States of America (hereinafter "federal attorneys"), is sufficient ground to sanction said federal attorneys. Confer at "Attorn" in Black's Law Dictionary, Fourth Edition (1951). Rebuttal to Brief Opposing Stay and Relief from Judgment: Page 6 of 13 [N]o genuine issues of material fact remain for trial. On the contrary, the federal attorneys are attempting, by this statement, to sweep under the rug a total of eleven (11) fully documented demands for mandatory judicial notice, filed and served pursuant to Rule 201(d) of the Federal Rules of Evidence. This documentation was verified by Defendant, under penalty of perjury, pursuant to 28 U.S.C. 1746(1), which rendered said documentation the highest form of truth. The federal attorneys in the instant case have failed to rebut this evidence, point-for-point. Accordingly, their silence activates estoppel, pursuant to Carmine v. Bowen, 64 A. 932 (1906), and it also constitutes fraud, because their requisite oaths of office create legal and moral duties to speak, and silence can be equated with fraud where such duties exist, pursuant to U.S. v. Tweel, 550 F.2d 297, 299 (1977). To argue that no genuine issues of material fact remain for trial, is to sweep the entire expanse of American History under the rug as well, and to substitute in its place a veritable host of fictions and fictitious nonsense, of which the American People now have had about all They are willing to take. See Dyett v. Turner, 439 P.2d 266, 270 (1968), where "General Lee had surrendered ...."; Full Faith and Credit Clause. Defendant will illustrate with but one of the eleven demands for mandatory judicial notice, previously filed. United States Representative Barbara B. Kennelly has admitted, on official stationery of the U.S. House of Representatives, that the term "State" in 26 U.S. Code 3121(e) specifically includes only the named U.S. territories and possessions of the District of Columbia, Puerto Rico, the Virgin Islands, Guam and American Rebuttal to Brief Opposing Stay and Relief from Judgment: Page 7 of 13 Samoa. Rep. Kennelly made this statement, after consulting with experts in the offices of the Legislative Counsel and the Congressional Research Service. Defendant hereby expressly reserves His fundamental Right to convene a qualified and competent federal trial jury, in order to compel testimony from said experts on this very question. To say that this admission is earth-shaking is an understatement, pursuant to applicable rules of compulsory discovery. But, of course, the federal attorneys would have Us believe that this is a "specious assertion" [sic]. We say, let the jury decide! The burden of proof is now upon these same federal attorneys to prove otherwise, because the proponent of a rule has the burden of proving its application in the instant case. See, in particular, 5 U.S.C. 556(d). Moreover, if these startling revelations do not constitute "exceptional circumstances," then Defendant is at a total loss to conceive what, on Earth, would qualify as such in the minds of federal attorneys who have failed, to date, to exhibit any of the lawful credentials required by Article VI, Clause 3, in the U.S. Constitution, and also by 5 U.S.C. 3331. Defendant offers to prove that brainwashing is the better, and more likely, diagnosis: Words "learned in the law" were omitted as unnecessary. Such requirement is not made of United States judges and no reason appears to make a distinction respecting United States attorneys. [28 U.S.C. 541, Historical and Statutory Notes] [Federal Civil Judicial Procedure and Rules] [West Publishing Company, 1996 Edition] [emphasis added] Rebuttal to Brief Opposing Stay and Relief from Judgment: Page 8 of 13 This Court had subject matter jurisdiction of this action pursuant to 28 U.S.C. Secs. 1340 and 1345 and Sections 7401 and 7402(a) of the Internal Revenue Code (26 U.S.C.). 28 U.S.C. 1340 grants original jurisdiction to this USDC over any civil action arising under any Act of Congress providing for internal revenue. This case does not arise under any Act of Congress providing for internal revenue; it was brought to declare Defendant's "Claim of Commercial Lien and Affidavit" to be null and void, when said Claim arose under Nebraska state law. Affidavits cannot be declared null and void by this honorable Court, because to do so would constitute a clear and present deprivation of the Petition Clause. See Chambers supra. Moreover, the instant case was also brought to obtain an injunction prohibiting Defendant from publishing or filing any "Claim of Commercial Lien and Affidavit" or other such common law lien. Once again, such a goal is a direct violation of the Petition Clause, because said claim(s) by Defendant constitute petitions to government for redress of grievances, which are to be afforded special constitutional protection, avoiding dubious intrusions whenever possible. See Chambers supra. 28 U.S.C. 1345 grants original jurisdiction to the district courts over all civil actions, suits, and proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress. However, section 1345 is totally irrelevant, because the "United States" [sic] is not the named Plaintiffs in the instant case; the United States of America are the named Plaintiffs in the instant case. IRC 7401 does not grant jurisdiction to this USDC either, because the requisite jurisdictional facts are not exhibited in the official record, when they have already been specifically Rebuttal to Brief Opposing Stay and Relief from Judgment: Page 9 of 13 denied. See U.S.A. [sic] v. One 1972 Cadillac Coupe De Ville, 355 F.Supp. 513, 515 (1973). More to this point, Ms. Janet Reno has failed to exhibit her Oath of Office required by Article VI, Clause 3, and by 5 U.S.C. 3331. Delegation of authority from Ms. Reno downwards is now impossible. Lex non cogit impossibilia. Therefore, there can be no authorizations required by IRC 7401, none, until and unless a qualified Attorney General is properly appointed who has executed a valid and lawful Oath of Office. IRC 7402(a) has been disposed supra. This Court also properly exercised in personam jurisdiction over the defendant. In the Memorandum and Order entered in this case on April 8, 1997, this Court determined that defendant had been properly served with process in this civil action. The federal attorneys have again missed the boat (and the dock) on this point. As a Citizen of Nebraska state who is expressly not a citizen of the United States, by Right of Election, the Proper Person of the Defendant cannot be subjected to the municipal jurisdiction of the USDC, absent a valid contract to the contrary which is in effect and also in evidence, because the constitutional origins of the USDC are those which grant plenary, municipal authority to the United States (federal government). See Article IV, Section 3, Clause 2; American Insurance Co. v. 356 Bales of Cotton, 1 Pet. 511 (1828), 7 L.Ed. 242; Balzac v. Porto Rico [sic], 42 S.Ct. 343, 258 U.S. 298 at 312, 66 L.Ed. 627 (1921); 5 U.S.C. 552(a)(4)(B). Defendant is domiciled outside the municipal jurisdiction of Congress. Citizenship, strictly speaking, is a term of municipal law. See Roa v. Collector of Customs, 23 Philippine 315, 332 (1912). Rebuttal to Brief Opposing Stay and Relief from Judgment: Page 10 of 13 NOTICE OF INTENT TO TRANSFER CASE Pursuant to 28 U.S.C. 1631, Defendant hereby provides formal written Notice to all interested party(s), and demands mandatory judicial notice by this honorable USDC, of Defendant's intent to petition the DCUS for review of all administrative action(s), specifically including, but not limited to, the improper withholding of certain documents already requested of federal officers, employees, and/or agents who have touched this case, pursuant to the Freedom of Information Act, 5 U.S.C. 552 et seq. The USDC in the instant case clearly suffers from a demonstrated want of jurisdiction over the subject matter, and over the Proper Person of the Defendant. REMEDY DEMANDED In the interests of justice, this honorable USDC is required by law to transfer the instant action to the DCUS, in which the instant action should have been brought at the time it was first filed or noticed; and the action shall proceed as if it had been filed in, or noticed for, the DCUS to which it is transferred on the date upon which it was actually filed in, or noticed for, this USDC. See 28 U.S.C. 1631. The term "shall" as found in section 1631 has a mandatory, imperative meaning, under which this USDC has no discretion whatsoever. VERIFICATION I, Vance E. Knudson, Sui Juris, hereby verify, under penalty of perjury, under the laws of the United States of America, without (outside) the "United States", that the above 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). Rebuttal to Brief Opposing Stay and Relief from Judgment: Page 11 of 13 Dated: ______________________________ Respectfully submitted, /s/ Vance E. Knudson _____________________________________ Vance E. Knudson, Sui Juris Citizen of Nebraska state (expressly not a citizen of the United States) All Rights Reserved without Prejudice Rebuttal to Brief Opposing Stay and Relief from Judgment: Page 12 of 13 PROOF OF SERVICE I, Vance E. Knudson, 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): DEFENDANT'S REBUTTAL TO PLAINTIFF'S BRIEF IN OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT; AND NOTICE OF INTENT TO TRANSFER CASE TO COURT OF COMPETENT JURISDICTION: 28 U.S.C. 1631, 5 U.S.C. 552(a)(4)(B) 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: SALLY R. JOHNSON THOMAS J. MONAGHAN Office of U.S. Attorney United States Attorney 487 Federal Building U.S. Department of Justice 100 Centennial Mall North c/o P.O. Box 7238 Lincoln [zip code exempt] Ben Franklin Station NEBRASKA STATE Washington [zip code exempt] DISTRICT OF COLUMBIA ROBERT D. METCALFE Trial Attorney, Tax Division U.S. Department of Justice c/o POB 7238 Ben Franklin Station Washington [zip code exempt] DISTRICT OF COLUMBIA [See USPS Publication #221 for addressing instructions.] Dated: __________________________________ /s/ Vance E. Knudson __________________________________________ Vance E. Knudson, Sui Juris Citizen of Nebraska state (expressly not a citizen of the United States) All Rights Reserved without Prejudice Rebuttal to Brief Opposing Stay and Relief from Judgment: Page 13 of 13 # # # ======================================================================== Paul Andrew, Mitchell, B.A., M.S. : Counselor at Law, federal witness email: [address in tool bar] : Eudora Pro 3.0.2 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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