Time: Tue Nov 12 20:14:30 1996
To: libertylaw@www.ultimate.org
From: Paul Andrew Mitchell [address in tool bar]
Subject: Re: LLAW: WARWICK CASE: APPEAL
Cc:
Bcc:
Paul Mitchell's comments
are embedded below:
<snip>
>>> - PETITION -
>>>
>>> Pursuant to [Title 28, United States Code, =A7 1292 (this is only good in
>>>federal courts)] Petitioner seeks leave to appeal from order(s) entered on
>>>[date], in [NAME OF LOWER COURT] case number [xxxx], specifically: The
>>>order of entry of a plea.
>
>
>
> Would this be a good place to insert quote from us and Okla const.
>preseving my right to know nature & cause of the accusation; or is there
>another statute I should look for, Tom.
It is probably not codified in
a state statute, so don't waste
your time. Look in your state
constitution first, until you
find it (or fail to find).
>Should I look up the USC Title 28-1292?
Yes, this would be an excellent place
to do that, because the state constitution
is the supreme law of your state, and
the Sixth Amendment usually applies
only to federal litigation and the actions
of federal officers.
BTW, the correct way to cite the U.S.
Codes is "28 USC 1292" for short,
or "28 U.S.C. 1292" for long.
/s/ Paul Mitchell
>
> Also, seeking leave to appeal? Does this mean I would be asking them
>(higher court) for their permission to appeal the (lower court judge's)
>emtry of a plea?
Yes: seeking leave to appeal
is the same as asking their
permission to appeal the lower
court's decision. It is
"interlocutory" because appellate
courts normally only have jurisdiction
over final judgments. See Final
Judgments Act in Title 28.
Here, however, you need an "intermediate"
appellate ruling, before the proceeding
can proceed any further. "Interlocutory"
means "in the middle of locution" or
"in the middle of the proceeding, before
it has reached final judgment."
We faced this on an Emergency Motion
to the Ninth Circuit once, but we
were appealing an Order to Show Cause,
and the matter had not proceeded to
a contempt citation, which would have
been a "final judgment" giving the
Ninth Circuit full appellate jurisdiction.
They rejected the Emergency Motion because
the Ninth Circuit did not have jurisdiction
over a matter which had not reached final
judgment; however, our remedy at that
point would have been to do exactly what
Tom is suggesting here: go back and
Petition the Ninth Circuit for Leave
to Appeal Interlocutory Order, i.e.
the Order to Show Cause.
The client in our case was not willing to let the
matter go all the way to a contempt citation;
he, however, failed to obey the Order to
appear and Show Cause, thinking that the
district court had lost jurisdiction when
the Notice of Appeal was filed that morning.
He did so against my better judgment, and
against my repeated recommendations that
he appear, despite the Notice of Appeal.
So, the judge issued an Order for his arrest,
because he had failed to appear as ordered.
That, then, led to the Emergency Motion,
which the Ninth Circuit did NOT want to
hear, because of the fabulous foundation
we had already built in the case (Ninth
Circuit was also desirous of scuttling the
case). So, there you have it:
proper procedure, on the one hand, and
political reality, on the other hand.
In our case, the FBI won because they
were under orders to scuttle the case.
I am still looking at ways to resurrect
all of that work. I just don't have
anybody to pay expenses, after the FBI
persuaded the client that I was the only
one to blame for the fact that the judge
was angry. We had only caught that judge
in the act of committing 27 counts of mail
fraud, 27 counts of obstruction of justice,
27 counts of jury tampering, and 27 counts
of conspiracy to commit all of the above.
THAT was the reason why the judge was angry.
So, you can see how the judge was very
anxious to slam-dunk the whole matter.
The IRS was about to be blown to the four
winds by this case, however, since the
defendant was a trust, and we had just begun
to enter evidence that IRS is also a trust --
Trust #62 in Puerto Rico. The AUSA kept
trying to create the "fiction" that the
defendant trust was a corporation; in fact,
the judge even referred to it as a corporation.
We objected and briefed the court on that point,
even making an offer of proof. Now I understand
why they were trying like mad to move the
case onto different grounds, namely, corporate
rules, since the "trust character" of the parties
was going to lead us straight away to Trust #62
domiciled in Puerto Rico under color of the
Federal Alcohol Act which was declared unconstitutional
by the U.S. Supreme Court in 1935. So, there were
some very heavy forces at work in that grand jury
case. The AUSA will be very lucky if he succeeded
in keeping himself out of federal prison, because
of all the felonies he committed just on that one
case; the judge is also in very deep trouble at
the present time, because he ordered the mail to
be intercepted and given to the AUSA. This mail
was all intended for the federal grand jury foreperson.
The fat lady has still not sung yet, however.
If I were to do anything at this point in the
matter, I would go back to the Ninth Circuit
with a Mandamus to order the district court
judge to rule on our motion for clarification
of his Order that the USDC "is not the proper
forum to bring a request under the Freedom
of Information Act." That one Order is worth
its weight in uranium 238, given the massive
collateral attack I am planning against the
entire federal judiciary, on the strength of
that one Order. Actually, I can use it without
the clarification, but it would be neat to
litigate the whole thing up at the Ninth Cicuit,
which has issued more rulings on jurisdiction
than all the other circuits combined.
/s/ Paul Mitchell
>
>
>
>Another dumb question for the list:
>
>
> Whenever I execute an affidavit; do I have to have witnesses EVERY
>time; even if I have already submitted affidavit(s) to the court in the
>instant case(s).
No, you can certify documents under
penalty of perjury pursuant to
28 U.S.C. 1746(1) -- certifications
under penalty of perjury "outside"
the United States, without needing
any witnesses. Congress did this
to eliminate the need for witnesses,
as long as you are willing to certify
the document(s) under penalty of
perjury, e.g. Proof of Service.
/s/ Paul Mitchell
>
>(The court split this in to two separate cases...2 case numbers.)
>
> God Bless America!
> Dave in Tulsa
>
>
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