Paul Andrew, Mitchell, B.A., M.S.
Counselor at Law and federal witness
c/o 2509 N. Campbell, #1776
Tucson, Arizona state
zip code exempt
Under Protest and by Special Visitation
with explicit reservation of all rights
UNITED STATES DISTRICT COURT
JUDICIAL DISTRICT OF ARIZONA
IN RE GRAND JURY SUBPOENA ) Case No. GJ-95-1-6
SERVED ON ) NOTICE OF MOTION AND
NEW LIFE HEALTH CENTER COMPANY ) MOTION TO STAY PROCEEDINGS
) FOR FAILING TO COMPLY WITH
) GRAND JURY SELECTION POLICY,
) AND NOTICE OF CHALLENGE AND
) CHALLENGE TO
) CONSTITUTIONALITY OF STATUTE
) 28 U.S.C. 297, 517, 518,
_______________________________) 1861, 1865, and 1867(d)
COMES NOW Paul Andrew, Mitchell, Sui Juris, Sovereign Arizona
Citizen (hereinafter "Counsel") and Vice President for Legal
Affairs of New Life Health Center Company, an Unincorporated
Business Trust domiciled in the Arizona Republic (hereinafter
the "Company"), to Petition this honorable Court for a stay of
the instant proceedings, pursuant to the provisions of 28 U.S.C.
1867(d), pending proper review of the Company's challenge to the
constitutionality of 28 U.S.C. 1865, to wit:
1865. Qualifications for jury service
(a) The chief judge of the district court, or such other
district court judge as the plan may provide ... shall
determine solely on the basis of information provided
on the juror qualification form and other competent
evidence whether a person is unqualified for, or
exempt, or to be excused from jury service. ...
(b) In making such determination the chief judge of the
district court, or such other district court judge as
the plan may provide, shall deem any person qualified
to serve on grand and petit juries in the district
court unless he --
(1) is not a citizen of the United States eighteen
years old who has resided for a period of one
year within the judicial district; ....
[28 U.S.C. 1865, emphasis added]
Motion to Stay Proceedings:
Page 1 of 9
In stark contrast, it is the policy of the United States
that all citizens shall have the opportunity to be considered
for service on grand juries in the district courts of the United
States. To be constitutional, and to be consistent with its
legislative intent, the term "all citizens", as that term is
used in 28 U.S.C. 1861, must be construed to include also
Citizens of the freely associated compact states who are not
also citizens of the United States (a/k/a "federal citizens"):
1861. Declaration of policy
It is the policy of the United States that all litigants in
Federal courts entitled to trial by jury shall have the
right to grand and petit juries selected at random from a
fair cross section of the community in the district or
division wherein the court convenes. It is further the
policy of the United States that all citizens shall have
the opportunity to be considered for service on grand and
petit juries in the district courts of the United States,
and shall have an obligation to serve as jurors when
summoned for that purpose.
[28 U.S.C. 1861, emphasis added]
Counsel hereby provides notice to all interested parties of
His sworn (verified) statement of law and facts which constitute
a substantial failure to comply with the Constitution for the
United States of America, as lawfully amended (hereinafter "U.S.
Constitution"), and with the provisions of Title 28, United
States Code, Section 1861: Declaration of Policy. See 28
U.S.C. 1867(d). The presently convened Grand Jury consists of
members all of whom are citizens of the United States, not
necessarily Citizens of Arizona state. See Dyett v. Turner and
State v. Phillips infra; 52 Stat. 1034, Chapter 644, June 24,
1938, in pari materia with the Tenth Amendment; Right of
Election; voter registration affidavits.
Motion to Stay Proceedings:
Page 2 of 9
By way of introduction to the crucial matters of fact and
law which are discussed at length in Counsel's sworn (verified)
statement, which is hereby incorporated by reference as if set
forth fully herein, this honorable Court is hereby respectfully
requested to take formal judicial notice of the additional
standing authorities on this question:
We have in our political system a Government of the United
States and a government of each of the several States.
Each one of these governments is distinct from the others,
and each has citizens of its own .... Slaughter-House
Cases
[United States v. Cruikshank, 92 U.S. 542 (1875)]
[emphasis added]
A person who is a citizen of the United States** is
necessarily a citizen of the particular state in which he
resides. But a person may be a citizen of a particular
state and not a citizen of the United States. To hold
otherwise would be to deny to the state the highest
exercise of its sovereignty, -- the right to declare who
are its citizens.
[State v. Fowler, 41 La. Ann. 380]
[6 S. 602 (1889), emphasis added]
There are, then, under our republican form of government,
two classes of citizens, one of the United States and one
of the state. One class of citizenship may exist in a
person, without the other, as in the case of a resident of
the District of Columbia; but both classes usually exist in
the same person.
[Gardina v. Board of Registrars, 160 Ala. 155]
[48 S. 788, 791 (1909), emphasis added]
There are over 100,000 elementary and secondary schools in
the United States. ... Each of these now has an invisible
federal zone extending 1,000 feet beyond the (often
irregular) boundaries of the school property.
[U.S. v. Lopez, 115 S.Ct. 1624 (1995)]
Motion to Stay Proceedings:
Page 3 of 9
As a Party to the instant case, which is presently a civil
action proceeding under the Federal Rules of Civil Procedure,
with the possibility of a criminal indictment issuing from it,
the Company hereby challenges the presently convened Grand Jury
on the ground that such jury was not selected in conformity with
section 1861 of Title 28, because Citizens of Arizona state who
are not also citizens of the United States (a/k/a federal
citizens) are disqualified from serving by virtue of their
chosen Citizenship status. See 28 U.S.C. 1867(e); Right of
Election; 15 Statutes at Large, Chapter 249 (Section 1),
enacted July 27, 1868; jus soli; jus sanguinis. Specifically,
the offensive statute forces the following unconstitutional
result upon Citizens of Arizona state who choose not also to be
citizens of the United States (a/k/a federal citizens):
citizen of Citizen of Qualified
United States Arizona state to serve
Yes Yes Yes
Yes No Yes
No No No
No Yes No **
This result ("**") violates the Tenth Amendment by disqualifying
Citizens of Arizona state from serving on federal grand juries
when they are not also federal citizens, thus denying to accused
Citizens of Arizona state a grand jury of Their Peers when a
grand jury consists only of federal citizens.
An intentional discrimination against a class of persons,
solely because of their class, by officers in charge of the
selection and summoning of grand jurors in a criminal case, is a
violation of the fundamental Rights of an accused. See Cassell
v. Texas, 339 U.S. 282; Atkins v. Texas, 325 U.S. 398; Pierre
v. Louisiana, 306 U.S. 354. Such a violation is not excused by
the fact that the persons actually selected for jury service
otherwise possess the necessary qualifications for jurors as
prescribed by statute. See State v. Jones, 365 P.2d 460.
Motion to Stay Proceedings:
Page 4 of 9
Discrimination in the selection of a grand jury, as
prohibited by the U.S. Constitution, means an intentional,
systematic noninclusion because of class. There are two (2)
classes of citizenship in America. E.g. Gardina supra.
28 U.S.C. 1865(b)(1) specifically excludes those classes of
Citizens who are not mentioned. Expressio unius est exclusio
alterius. The following statute dramatically demonstrates that
Congress appreciates the difference between the two classes, and
knows how to discriminate against "citizens of the American
republics" (a/k/a State Citizens) in favor of "citizens of the
United States" (a/k/a federal citizens):
AN ACT
To authorize the President to permit citizens of the
American republics to receive instruction at professional
educational institutions and schools maintained and
administered by the Government of the United States or by
departments or agencies thereof.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That
the President be, and he hereby is, authorized, in his
discretion and under such regulations as he may prescribe
by Executive order, to permit citizens of the American
republics to receive instruction, with or without charge
therefor, at professional educational institutions and
schools maintained and administered by the Government of
the United States or by departments or agencies thereof:
Provided, That such citizens shall agree to comply with all
regulations for the government of the institutions and
schools at which they may be under instruction and to exert
every effort to accomplish successfully the courses of
instruction prescribed:
And provided further, That the regulations prescribed by
the President under the authority of this Act shall contain
provisions limiting the admission of citizens of the
American republics to primary schools maintained and
administered by the Government of the United States so that
there will under no circumstances be any curtailment of the
admission of citizens of the United States eligible to
receive instruction therein and not more than one citizen
of any American republic shall receive instruction at the
same time in the United States Military Academy and not
more than one in the United States Naval Academy.
Approved, June 24, 1938.
[52 Stat. 1034, Chapter 644, June 24, 1938]
[Seventy-Fifth Congress, Third Session]
[bold emphasis added]
Motion to Stay Proceedings:
Page 5 of 9
Once a prima facie case for the existence of purposeful
discrimination is made out, the burden shifts to the prosecution
to prove otherwise. See Whitus v. Georgia, 385 U.S. 545.
Reliance on the so-called Fourteenth Amendment to resolve this
matter is out of the question, because the Fourteenth Amendment
was never lawfully ratified. See State v. Phillips, 540 P.2d
936, 941 (1975); Dyett v. Turner, 20 Utah 2d 403, 439 P.2d 266,
270 (1968); Full Faith and Credit Clause; 28 Tulane Law Review
22; 11 South Carolina Law Quarterly 484; House Congressional
Record, June 13, 1967, p. 15641 et seq.
As such, there is no constitutional provision which makes a
federal citizen also a citizen of the Union state in which s/he
resides, nor is there any constitutional provision which states
that the validity of the public debt shall not be questioned.
The judicial history of American citizenship is a subject
which is rich in nuance and detail, as demonstrated in Counsel's
sworn (verified) statement. For example, at a time when those
Islands were in the federal zone, the Supreme Court of the
Philippine Islands found that "citizenship," strictly speaking,
is a term of municipal law and, according to that Court, it is
municipal law which regulates the conditions on which
citizenship is acquired:
Motion to Stay Proceedings:
Page 6 of 9
Citizenship, says Moore on International Law, strictly
speaking, is a term of municipal law and denotes the
possession within the particular state of full civil and
political rights subject to special disqualifications, such
as minority, sex, etc. The conditions on which citizenship
are [sic] acquired are regulated by municipal law. There
is no such thing as international citizenship nor
international law (aside from that which might be contained
in treaties) by which citizenship is acquired.
[Roa v. Collector of Customs]
[23 Philippine 315, 332 (1912)]
Indeed, international law is divided roughly into two groups:
(1) public international law and (2) private international law.
Citizenship is a term of private international law (also known
as municipal law) in which the terms "state", "nation" and
"country" are all synonymous:
Private international law assumes a more important aspect
in the United States than elsewhere, for the reason that
the several states, although united under the same
sovereign authority and governed by the same laws for all
national purposes embraced by the Federal Constitution, are
otherwise, at least so far as private international law is
concerned, in the same relation as foreign countries. The
great majority of questions of private international law
are therefore subject to the same rules when they arise
between two states of the Union as when they arise between
two foreign countries, and in the ensuing pages the words
"state," "nation," and "country" are used synonymously and
interchangeably, there being no intention to distinguish
between the several states of the Union and foreign
countries by the use of varying terminology.
[16 Am Jur 2d, Conflict of Laws, Sec. 2]
[emphasis added]
Congress does refer to the Union states as "countries." See 28
U.S.C. 297. The reference to "citizens of the United States" at
26 C.F.R. 1.1-1(b) and (c) is material evidence that the
Internal Revenue Code ("IRC") is a municipal law. See also IRC
3121(e). Furthermore, a leading legal encyclopedia leaves no
doubt that the terms "municipal law" and "internal law" are
equivalent:
Motion to Stay Proceedings:
Page 7 of 9
International law and Municipal or internal law.
... [P]ositive law is classified as international law, the
law which governs the interrelations of soverign states,
and municipal law, which is, when used in contradistinction
to international law, the branch of the law which governs
the internal affairs of a sovereign state.
However, the term "municipal law" has several
meanings, and in order to avoid confusing these meanings
authorities have found more satisfactory Bentham's phrase
"internal law," this being the equivalent of the French
term "droit interne," to express the concept of internal
law of a sovereign state.
The phrase "municipal law" is derived from the Roman
law, and when employed as indicating the internal law of a
sovereign state the word "municipal" has no specific
reference to modern municipalities, but rather has a
broader, more extensive meaning, as discussed in the C.J.S.
definition Municipal.
[52A C.J.S. 741, 742 ("Law")]
[emphasis added]
RELIEF SOUGHT
Wherefore, Counsel petitions this honorable Court, on
behalf of the Company, for an indefinite stay of the proceedings
in the instant case, pending proper review of the substantial
issues of law and fact which are alleged in this Motion and
which are contained in Counsel's sworn (verified) statement
which is attached hereto and incorporated herewith.
Respectfully submitted on May 24, 1996.
/s/ Paul Andrew Mitchell
Paul Andrew, Mitchell, B.A., M.S.
Citizen of Arizona state
All Rights Reserved without Prejudice
Motion to Stay Proceedings:
Page 8 of 9
PROOF OF SERVICE
I, Linda H. Burns, 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 and a Citizen
of one of the United States of America, that I am not currently
a Party to this action, and that I personally served the
following document:
NOTICE OF MOTION AND
MOTION TO STAY PROCEEDINGS FOR FAILING TO COMPLY WITH
GRAND JURY SELECTION POLICY,
AND NOTICE OF CHALLENGE AND CHALLENGE TO
CONSTITUTIONALITY OF STATUTE
by placing said document in first class U.S. Mail, with postage
prepaid and properly addressed to the following individuals:
ROBERT L. MISKELL John M. Roll
Acapulco Building, Suite 8310 U.S. District Court
110 South Church Avenue 55 E. Broadway
Tucson, Arizona Tucson, Arizona
JANET NAPOLITANO Clerk
Acapulco Building, Suite 8310 U.S. District Court
110 South Church Avenue 55 E. Broadway
Tucson, Arizona Tucson, Arizona
Grand Jury Foreperson Postmaster
In re: New Life Health Center Co. U.S. Post Office
55 E. Broadway Downtown Station
Tucson, Arizona Tucson, Arizona
Judge Alex Kozinski Evangelina Cardenas
Ninth Circuit Court of Appeals "Internal Revenue Service"
125 S. Grand Avenue, Suite 200 300 West Congress
Pasadena, California Tucson, Arizona
Attorney General Solicitor General
Department of Justice Department of Justice
10th and Constitution, N.W. ! 10th and Constitution, N.W. !
Washington, D.C. Washington, D.C.
Dated: May 24, 1996
/s/ Linda Burns
________________________________________
Linda H. Burns, Citizen of Arizona state
All Rights Reserved without Prejudice
Motion to Stay Proceedings:
Page 9 of 9
# # #
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In Re Grand Jury Subpoena