Time: Fri Nov 15 09:33:53 1996
To: BretCahill@aol.com
From: Paul Andrew Mitchell [address in tool bar]
Subject: Re: Legal Tactical Tips/Karma
Cc:
Bcc:
At 12:40 AM 11/15/96 -0500, you wrote:
>> Inclusio unius est exclusio alterius. The omission by
>>Congress of the USDC from 18 U.S.C. 3231 must have been
>>intentional; the maxim certainly allows us to infer that it was
>>intentional. Use of this maxim allows for us to exploit one of
>>the most powerful techniques in American jurisprudence. It is
>>called "collateral attack" -- a broadside, rather than a head-
>>on, collision.
>
>First, judges want a lot of supporting case law.
>Federal court isn't the patent office. They want
>to avoid novel arguments because that requires
>thought. Judges like to think about as much as
>the next guy. DeTocqueville said that the law,
>lawyers and judges are slow to change. They
>need precident to function. It's always been this
>way.
>
>Second, judges don't like a lot of highly legally
>technical arguments. Lawyers try this all the
>time and it really pisses judges off. Judges are
>like everyone else. They want something simple
>and entertaining -- KISS
>
>Third, while the idiots were saluting the Gipper,
>the Gip was putting idiots on the bench. (This
>may work in your favor if you don't have a good
>case.)
>
>I'd like to see the government's answer,
>however.
>
>Bret Cahill
Bret,
Here are just some of the cites on which
we are relying. There are many more
than this. Enjoy!
/s/ Paul Mitchell
[This text is formatted in Courier 11, non-proportional spacing.]
We begin with one of the great masters of Constitution, Chief
Justice John Marshall, writing in the year 1828. Here, Justice
Marshall makes a very clear distinction between judicial courts,
authorized by Article III, and legislative (territorial) courts,
authorized by Article IV. Marshall even utilizes some of the
exact wording of Article IV to differentiate those courts from
Article III "judicial power" courts, as follows:
These [territorial] courts then, are not Constitutional
courts, in which the judicial power conferred by the
Constitution on the general government can be deposited.
They are incapable of receiving it. They are legislative
courts, created in virtue of the general rights of
sovereignty which exists in the government, or in virtue of
that clause which enables Congress to make all needful rules
and regulations, respecting the territory belonging to the
United States. The jurisdiction with which they are
invested, is not a part of that judicial power which is
defined in the 3d article of the Constitution, but is
conferred by Congress, in the execution of those general
powers which that body possesses over the territories of the
United States. Although admiralty jurisdiction can be
exercised in the States in those courts only which are
established in pursuance of the 3d article of the
Constitution, the same limitation does not extend to the
territories. In legislating for them, Congress exercises
the combined powers of the general and of the State
government.
[American Insurance Co. v. 356 Bales of Cotton]
[1 Pet. 511 (1828), emphasis added]
Constitutional provision against diminution of compensation
of federal judges was designed to secure independence of
judiciary.
[O'Donoghue v. U.S., 289 U.S. 516 (1933)]
[headnote 2. Judges]
The term "District Courts of the United States," as used in
Criminal Appeals Rules, without an addition expressing a
wider connotation, had its historic significance and
described courts created under article 3 of Constitution,
and did not include territorial courts.
[Mookini et al. v. U.S., 303 U.S. 201]
[headnote 2. Courts, emphasis added]
Where statute authorized Supreme Court to prescribe Criminal
Appeals Rules in District Courts of the United States
including named territorial courts, omission in rules when
drafted of reference to District Court of Hawaii, and
certain other of the named courts, indicated that Criminal
Appeals Rules were not to apply to those [latter] courts.
[Mookini et al. v. U.S., 303 U.S. 201]
[headnote 4. Courts, emphasis added]
The following paragraph from Mookini is extraordinary for several
reasons: (1) it refers to the "historic and proper sense" of the
term "District Courts of the United States", (2) it makes a key
distinction between such courts and application of their rules to
territorial courts; (3) the application of the maxim inclusio
unius est exclusio alterius is obvious here, namely, the omission
of territorial courts clearly shows that they were intended to be
omitted:
Not only did the promulgating order use the term District
Courts of the United States in its historic and proper
sense, but the omission of provisions for the application of
the rules to the territorial courts and other courts
mentioned in the authorizing act clearly shows the
limitation that was intended.
[Mookini et al. v. U.S., 303 U.S. 201]
[emphasis added]
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.
[Int'l Longshoremen's and Warehousemen's Union et al.]
v. Juneau Spruce Corp., 342 U.S. 237 (1952)]
[emphasis added]
The phrase "court of the United States", without more, means
solely courts created by Congress under Article III of the
Constitution and not territorial courts.
[Int'l Longshoremen's and Warehousemen's Union et al.]
[v. Wirtz, 170 F.2d 183 (9th Cir. 1948), headnote 1]
[emphasis added]
United States District Courts have only such jurisdiction as
is conferred by an Act of Congress under the Constitution.
U.S.C.A. Const. art. 3, sec. 2; 28 U.S.C.A. 1344]
[Hubbard v. Ammerman, 465 F.2d 1169 (5th Cir., 1972)]
[headnote 2. Courts]
The United States district courts are not courts of general
jurisdiction. They have no jurisdiction except as
prescribed by Congress pursuant to Article III of the
Constitution. [many cites omitted]
[Graves v. Snead, 541 F.2d 159 (6th Cir. 1976)]
The question of jurisdiction in the court either over the
person, the subject-matter or the place where the crime was
committed can be raised at any stage of a criminal
proceeding; it is never presumed, but must always be
proved; and it is never waived by a defendant.
[U.S. v. Rogers, 23 F. 658 (D.C.Ark. 1885)]
In a criminal proceeding lack of subject matter jurisdiction
cannot be waived and may be asserted at any time by
collateral attack.
[U.S. v. Gernie, 228 F.Supp. 329 (D.C.N.Y. 1964)]
Jurisdiction of court may be challenged at any stage of the
proceeding, and also may be challenged after conviction and
execution of judgment by way of writ of habeas corpus.
[U.S. v. Anderson, 60 F.Supp. 649 (D.C.Wash. 1945)]
The United States District Court has only such jurisdiction
as Congress confers.
[Eastern Metals Corp. v. Martin]
[191 F.Supp 245 (D.C.N.Y. 1960)]
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