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 )
NEW LIFE HEALTH CENTER COMPANY ) COMPANY'S OPPOSITION TO
) SECOND APPLICATION FOR ORDER
) TO SHOW CAUSE; PETITION FOR
) ORDER TO SHOW CAUSE; AND
) NOTICE OF CHALLENGE TO
) JURISDICTION, WITH
_______________________________) VERIFICATION
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 present this petition and brief opposing the
SECOND APPLICATION FOR ORDER TO SHOW CAUSE, signed by Robert L.
Miskell (hereinafter "Miskell") on May 23, 1996, improperly
served at a physical location which is not the "last known
address" for lawful service of process to the Company. The
Company hereby protests this defective service, for the following
reasons:
Opposition to 2nd Application for Order to Show Cause:
Page 1 of 15
(1) Miskell knows the correct physical location of the
Company's administrative offices, where Dr. Burns works.
(2) Counsel and the Company are alarmed by the pattern of
falsehoods being perpetrated by Miskell, even after he was
sanctioned $4,797 for lying to a federal court in Phoenix. The
relevant historical record suggests that Miskell will not stop at
lying repeatedly, even to a Court of law and even after sanctions
were imposed, in order to mislead this Court and obtain his ends,
such as they are.
(3) Miskell has most recently attempted to strike from the
official record of the instant case documentary evidence of his
misdeeds (see recent MOTION TO STRIKE addressed separately).
This attempt constitutes material evidence of his willingness
further to obstruct justice by suppressing material evidence.
This latter evidence is relevant and material to the charges of:
(a) perjury
(b) jury tampering
(c) mail fraud
(d) obstruction of justice, and
(e) contempt of court
which have now been properly placed before this honorable Court
and before the currently convened federal Grand Jury.
Counsel hereby reserves the Company's fundamental Right to
have such charges heard and decided by a qualified jury of Peers
(i.e. Citizens of Arizona state who are not also citizens of the
United States), who are empowered by Law to determine the
relevance and materiality of all evidence placed before them.
See U.S. v. Gaudin, 515 U.S. 132 (1995).
Opposition to 2nd Application for Order to Show Cause:
Page 2 of 15
Miskell's specific lies are now documented for the record,
as follows:
In his SECOND APPLICATION FOR ORDER TO SHOW CAUSE, Miskell
misquoted this Court's Order dated May 3, 1995 (see Minute Entry,
same date) as follows:
Over the objection of the government, Eugene
Burns' oral motion for a continuance to comply
with the documents subpoena [sic] is GRANTED. IT IS
ORDERED, that Mr. Burns appear before the
Grand Jury on Wed., May 22, 1996 at 9:10 a.m.
with copies of the requested documents [sic].
In contrast, the correct paragraph reads as follows:
Over the objection of the government, Eugene
Burns' oral motion for a continuance to comply
with the documents subpoena [sic] is GRANTED. IT IS
ORDERED, that Mr. Burns appear before the
Grand Jury on Wed., May 22, 1996 at 9:10 a.m.
with copies of the requested document.
[underlined emphasis added]
Miskell is mis-stating this Court's Order dated May 3, 1996,
by changing the phrase "requested document" (singular) to the
phrase "requested documents" (plural) There is a significant
grammatical difference between the singular form of nouns, and
the plural form of nouns, notwithstanding the provisions of Title
1, United States Code. Court orders are not statutes.
"Document" is the singular form of this noun; "documents" is the
plural form of this noun.
The record shows that the original Order did contain a
grammatical error in its use of the phrase "documents subpoena",
which error Miskell did quote correctly (but without "[sic]"), to
his credit. However, he is prevented, by applicable laws and
rules of judicial ethics, from misrepresenting any of the wording
of court orders, now and at all times in the future.
Opposition to 2nd Application for Order to Show Cause:
Page 3 of 15
This Court will kindly take formal judicial notice that the
Company has previously petitioned for clarification and
reconsideration of its Order of May 3, 1996. A hearing and
decision on this Petition have not yet been had. Specifically,
in the PRAYER of said petition, the Company requested this Court
to:
3. reconsider its order of May 3, 1996, "that Mr. Burns
appear before the Grand Jury on Wed., May 22, 1996 at
9:10 a.m. with copies of the requested document [sic]";
is appearance all that is required? which document?
how many copies?
The Company is entitled to clarification and reconsideration
of this Order, in order for it to be able to know whether this
was: (1) a typographical error, or (2) a specific intent to
limit the Order to a single document (i.e. "requested document").
If the latter, then the Company is entitled to obtain
clarification as to which specific document this Court intended
Dr. Burns to copy and to bring with Him during His required
appearance before the Grand Jury.
In either case, the Company and Dr. Burns are entitled to
know if, and how, they can be compelled to produce private books
and records without also violating the Fourth and Fifth
Amendments in the Constitution for the United States of America,
as lawfully amended (hereinafter "U.S. Constitution"). See line
15 on page 27 of 37 in the Company's Petition to Clarify,
Reconsider, Mandate and Order, in which the Company petitioned
this Court to:
6. order the office of the United States Attorney to
prepare a Memorandum of Points and Authorities
explaining how Dr. Burns can be compelled to deliver
the Company's books and records to the grand jury
without also violating any of His or the Company's
fundamental, unalienable Rights;
Opposition to 2nd Application for Order to Show Cause:
Page 4 of 15
Miskell goes on to state, "The Court's granting of the
continuance was a result of Mr. Burn's [sic] representation to
the Court that he would produce the records, but needed more time
to copy them." Although the Company does not dispute this
isolated statement, Miskell misrepresents the overall situation
by failing to recognize and incorporate the NOTICE OF OFFER
WITHDRAWAL which was subsequently made by the Company and
Counsel. This NOTICE was formally served upon Miskell and filed
in the official Court record. Concealing what should have been
disclosed is a fraud. See definition of "fraud" in Black's Law
Dictionary, fifth edition, to wit:
A false representation of a matter of fact, whether by words
or by conduct, by false or misleading allegations, or by
concealment of that which should have been disclosed, which
deceives and is intended to deceive another so that he shall
act upon it to his legal injury. ... It comprises all acts,
omissions, and concealments involving a breach of a legal or
equitable duty and resulting in damage to another.
[emphasis added]
Furthermore, Miskell now seeks to strike said NOTICE completely
from the court record, together with all of its attachments.
Specifically, prejudice upon the Company and upon Counsel
resulted from this Court's decision to deny Counsel an
opportunity to address the Court at the hearings on April 25,
1996, and on May 3, 1996. "Prejudice will be inferred from
denial of assistance of counsel." See Audett v. U.S., 265 F.2d
837 (emphasis added); also Johnson v. Zerbst, 304 U.S. 458, 468
(1938) quoted infra.
Opposition to 2nd Application for Order to Show Cause:
Page 5 of 15
A demonstrable consequence of this prejudice was the
reversible error which Dr. Burns committed by "offering" to
produce the subpoenaed books and records without first hearing
Counsel demonstrate how the Company, as an Unincorporated
Business Trust organization, enjoys all the same fundamental
Rights, Privileges, and Immunities enjoyed by all common law
Citizens of Arizona state who are not also citizens of the United
States. See Privileges and Immunities Clause; State v. Fowler,
41 La. Ann. 380, 6 S. 602 (1889). Said "offer" was, therefore,
not a knowing, intentional, and voluntary act done with
sufficient awareness of the relevant circumstances and likely
consequences. See Brady v. U.S., 397 U.S. 742 at 748 (1970).
Said NOTICE contained the following explicit reversal:
Dr. Burns erred, and hereby reverses the error which He
committed, by implying that He had, KIV [knowingly,
intentionally and voluntarily], chosen to waive His
fundamental, unalienable Immunities against unreasonable
search and seizure and against providing compelled testimony
against Himself. [citing Privileges and Immunities Clause,
Boyd v. U.S., 116 U.S. 746 (1886), 28 U.S.C. 453, State v.
Wilson, 519 P.2d 228]
[Petition to Clarify, Reconsider, Mandate and Order]
[Page 4 of 37, beginning at line 12]
Another demonstrable consequence of this prejudice is that
it ousts this Court of jurisdiction. Effective assistance of
Counsel is a fundamental Right which is guaranteed by the Sixth
Amendment in the U.S. Constitution. "If the state should deprive
a person [of] the benefit of counsel, it would not be due process
of law." Powell v. Alabama, 287 U.S. 45, 68-70. The Company
requires the guiding hand of counsel at every step in the
proceedings against it. Powell supra. "If this requirement of
the Sixth Amendment is not complied with, the court no longer has
jurisdiction to proceed." Johnson v. Zerbst, 304 U.S. 458, 468
(1938). The Sixth Amendment stands as a jurisdictional bar.
"... [C]ompliance with this constitutional mandate is an
essential jurisdictional prerequisite to a federal court's
authority to deprive an accused of his life or liberty." Johnson
v. Zerbst supra at 467.
Opposition to 2nd Application for Order to Show Cause:
Page 6 of 15
Miskell makes further false and misrepresentative statements
in his SECOND APPLICATION FOR ORDER TO SHOW CAUSE when he charges
that:
... [N]ew Life Health Center Company and its managing
director, Eugene Burns, have now violated two court orders:
(1) the original grand jury subpoena which required New Life
Health Center Company to provide certain financial records
to the grand jury on March 27, 1996 and (2) the Court's
order of May 3, 1996.
On behalf of the Company, Counsel strenuously objects to
this false and misrepresentative statement, because it calls for
a conclusion of Law which is supported neither by the record, nor
by the facts of this case as heretofore documented in the record.
The record in this case shows that the Company responded to the
original grand jury subpoena with its PRIVILEGED COMMUNICATION,
addressed to the Grand Jury Foreperson and sent via Registered
United States Mail, with Return Receipt and Restricted Delivery
both requested.
The Company cannot be faulted in the slightest for the
evident failure of this PRIVILEGED COMMUNICATION to arrive at its
intended destination, because the record now shows that it was
obstructed, most probably by the office of the United States
Attorney in Tucson, Arizona, in a knowing, intentional and
voluntary violation of applicable federal laws.
More specifically, in its AFFIDAVIT OF CAUSES AND OBJECTIONS
TO O.S.C., the Company argued that the alleged agents of the
United States who brought the instant action petitioned this
honorable Court with unclean hands and a fraud upon the Court by
misrepresenting that the Company failed to "appear" in response
to said subpoena:
Opposition to 2nd Application for Order to Show Cause:
Page 7 of 15
10. The Company argues from all of the above that the
agents of the United States who brought the instant action
petitioned this honorable Court with unclean hands and with
a fraud upon this Court, among other things by
misrepresenting to this Court that the Company had failed to
"appear" in response to said subpoena. It is well known
that "appearances" can be made in writing, because an answer
constitutes an "appearance." Wieser v. Richter, 247 Mich.
52, 225 N.W. 542, 543. See the several definitions of
"appearance" in Black's Law Dictionary, Fourth Edition with
Guide to Pronunciation. The Registered letter cited supra
was the Company's "answer" to said subpoena.
[AFFIDAVIT OF CAUSES AND OBJECTIONS TO O.S.C.]
[Page 5 of 13, paragraph 10, emphasis added]
Although it attempted to do so, the Company did not "appear"
before the grand jury because its written answer (read
"appearance") was not delivered to the grand jury Foreperson,
even though this answer was mailed via Registered United States
Mail, with Return Receipt and Restricted Delivery requested;
this answer, entitled PRIVILEGED COMMUNICATION, was, instead,
intercepted and obstructed, in felonious violation of applicable
federal laws. The answer's conspicuous title -- PRIVILEGED
COMMUNICATION -- should have been enough to warn Miskell of the
serious nature of the document he eventually admitted to having
in his possession.
Miskell also included a telling footnote to his false
accusation that Dr. Burns and the Company violated the original
grand jury subpoena (see footnote 1 on page 2 of his SECOND
APPLICATION FOR ORDER TO SHOW CAUSE). The following footnote
makes an erroneous conclusion of law because it is founded on a
false and rebuttable premise:
Opposition to 2nd Application for Order to Show Cause:
Page 8 of 15
It should be noted that as managing director, Mr. Burns
[sic] can be held responsible in a contempt proceeding for
New Life Health Center Company's failure to comply with the
subpoena. As the Ninth Circuit explained in a criminal
contempt case: "An order to a corporation binds those who
are legally responsible for the conduct of its affairs. ...
De facto as well as de jure officers are responsible for
enabling a corporation to comply with orders directed to
it." United States v. Laurins, 857 F.2d 529, 535 (9th Cir.
1988).
[emphasis added]
Miskell has been repeatedly presented with evidence that the
Company is an Unincorporated Business Trust domiciled in the
Arizona Republic: in spoken statements to this honorable Court,
in affidavits filed with this Court, and in the opening paragraph
of almost every pleading which has been filed in the instant case
and also served on Miskell via first class U.S. Mail (see Proofs
of Service). Miskell has failed to rebut said affidavits (e.g.
AFFIDAVIT OF CAUSES AND OBJECTIONS TO O.S.C.) Accordingly, they
have become the truth of the case (a maxim of common law).
Nevertheless, Miskell's only other response at present has
been to move this Court for an order to strike said affidavits
and pleadings for the only reason that Counsel is not a licensed
attorney. See Haynes v. Kerner, 404 U.S. 519. Such a motion is
founded on a false premise, and is being made for criminal
motives and without regard for the judicial policy applicable to
litigants proceeding in propria persona.
Miskell has argued that Counsel cannot "represent" the
Company, nor file such affidavits and pleadings, because the
Company is a "corporation" and only a licensed attorney can
"represent" a corporation. On behalf of the Company, Counsel
wishes to point out that the Ninth Circuit authority cited by
Miskell supra has no application whatsoever to the Company,
specifically because the Company is not a corporation. How many
times must the Company reiterate this point? On behalf of the
Company, Counsel hereby protests the barratry now evident in
Miskell's conduct. See State v. Batson, 17 S.E.2d 511, 512-513.
Opposition to 2nd Application for Order to Show Cause:
Page 9 of 15
With respect to Miskell's second allegation that the Company
and its managing director have also violated this Court's Order
of May 3, 1996, Miskell himself stated that "Eugene Burns
appeared before the grand jury." Miskell is objecting that Dr.
Burns did not, however, provide any of the financial records of
New Life Health Center Company requested by the subpoena. See
SECOND APPLICATION FOR ORDER TO SHOW CAUSE, page 2, paragraph 2.
A careful review of the Order of May 3, 1996, reveals that
Dr. Burns was not required by said Order to provide any of the
financial records of the Company requested by the subpoena.
Said Order contained no such language. It merely ordered
Dr. Burns to "appear," which He did, "with copies of the
requested document." Since Dr. Burns was unclear as to the
specific document with which this Court had ordered Him to
appear, and since the Company had previously requested
clarification of this specific point (i.e. which document), Dr.
Burns came with copies of this Court's Order, so as to make it
absolutely clear to the members of the Grand Jury, and to
Miskell, that He (Burns) was complying with the Order to the
best of His knowledge and ability, without also waiving any of
His fundamental Rights. See Fourth and Fifth Amendments.
At the same time, during His appearance Dr. Burns attempted
to exercise His Right to Petition the Grand Jury for a formal
investigation into His charges that Miskell has been involved in
mail fraud, jury tampering, and obstruction of justice in the
instant case. He did this by bringing copies of documentary
evidence proving that Miskell had committed the aforementioned
felonies, but Miskell prevented Him from presenting these
documents to the Grand Jury by ordering Dr. Burns not to give the
Grand Jury anything. Then, Miskell asked, "Dr. Burns, do the two
boxes contain the financial records of the Company?" Dr. Burns
answered, "No, I was not ordered to bring them." Then Miskell
asked, "What is in the boxes?" Dr. Burns answered, "I'll show
you."
Opposition to 2nd Application for Order to Show Cause:
Page 10 of 15
Dr. Burns then opened the top box and gave Miskell one copy
of a thick Velo-bound volume and left a second identical copy on
the top of the opened box for the Grand Jury, but nobody took it.
The thick, Velo-bound volume contained the Company's NOTICE OF
OFFER WITHDRAWAL; PETITION FOR CLARIFICATION, FOR
RECONSIDERATION, FOR WRIT OF MANDAMUS, AND FOR ORDERS TO SHOW
CAUSE; WITH POINTS AND AUTHORITIES, including all attached
exhibits.
To his credit, Miskell did enter the aforementioned volume
into evidence by giving it to an unidentified member of the
federal Grand Jury. However, while Dr. Burns was still present
in the Grand Jury room, Miskell did not deliver the remaining
eleven (11) copies of the volume to the Grand Jury. Counsel
argues that the controlling law in this situation holds that
Miskell commits a felony each and every time he attempts to
prevent the delivery of such evidence to a federal Grand Jury.
As Miskell frankly stated in the hearing on May 3, 1996, the
intercepted parcel contained the original FORMAL REQUEST that the
grand jury investigate possible violations of federal law by
Miskell himself. The thick Velo-bound volumes contained true and
correct copies of this FORMAL REQUEST, delivery of which to the
Grand Jury remains an open question.
Opposition to 2nd Application for Order to Show Cause:
Page 11 of 15
The Company reserves its fundamental Right to know if, and
when, the original FORMAL REQUEST, and the remaining eleven (11)
volumes, were ever delivered to the Grand Jury, because this
FORMAL REQUEST and these Velo-bound volumes constitute Petitions
to Government for Redress of Grievances, the delivery of which is
a sacred, fundamental Right protected and guaranteed by the
Petition Clause in the U.S. Constitution.
Miskell has also stated, on record, that a copy of the
transcript of Dr. Burns' appearance before the grand jury will be
provided to the Court for in camera review. The Company
strenuously objects to this statement and to this offer, because
Miskell's demonstrated habit of repeated prevarication provides
probable cause for this Court, and for the Grand Jury to suspect,
and to investigate, additional perjury and tampering with the
evidence such as that which is contained in said transcript.
The Company hereby demands an opportunity to review the
transcript, in closed hearing, in order carefully and critically
to review it for probable perjury by Miskell and his
accomplice(s), including Ms. Evangelina Cardenas, an alleged
"Special Agent" of the "Internal Revenue Service."
On behalf of the Company, Counsel hereby places all
interested parties on formal Notice of the Company's MEMORANDUM
OF POINTS AND AUTHORITIES, provided under separate cover,
supporting the Company's argument that this Court lost
jurisdiction when it denied the Company the assistance of Counsel
at the hearings on April 25, 1996, and on May 3, 1996.
Opposition to 2nd Application for Order to Show Cause:
Page 12 of 15
To this end, Counsel hereby petitions this honorable Court
for a supplemental Order to the Office of the United States
Attorney to show cause why this Court did not oust itself of
jurisdiction when it denied the Company the effective assistance
of its Counsel of choice at said hearings, ruling arbitrarily as
it did that Company officer Dr. Eugene A. Burns was permitted to
address the Court, but Paul Andrew Mitchell was not permitted to
address the Court, even after He (Mitchell) was appointed an
Officer of the Company (i.e. Vice President for Legal Affairs)
and even though the Company is not a corporation.
When jurisdiction is challenged in writing, it must be
demonstrated in writing, on the record. See Hagans v. Lavine,
415 U.S. 533; Maine v. Thiboutot, 100 S.Ct. 2502. The proponent
of a rule carries the burden of proving its application in the
instant case. See 5 U.S.C. 556(d).
RELIEF SOUGHT
On behalf of the Company, Counsel respectfully requests this
honorable Court:
(1) to deny Miskell's SECOND APPLICATION FOR ORDER TO SHOW
CAUSE, for the reasons stated above;
(2) to honor its demand for an opportunity carefully and
critically to review, in closed hearing, the transcript of Dr.
Burns' appearance before the Grand Jury for possible tampering
with evidence contained therein; and
(3) to grant this Petition for an Order to the Office of the
United States Attorney to show cause why this Court did not oust
itself of jurisdiction when it denied the Company the effective
assistance of its Counsel of choice during the hearings held in
the instant case on April 25, 1996, and on May 3, 1996.
Opposition to 2nd Application for Order to Show Cause:
Page 13 of 15
VERIFICATION
The undersigned hereby certifies, under penalty of perjury,
under the laws of the United States of America, without the
"United States," that the above statements of fact are true and
correct, to the best of his current information, knowledge, and
belief, so help Me God, pursuant to 28 U.S.C. 1746(1).
Executed on May 30, 1996
/s/ Eugene A. Burns
Dr. Eugene A. Burns, D.C., N.D.
Citizen of Arizona state
All Rights Reserved without Prejudice
/s/ Paul Andrew Mitchell
Paul Andrew, Mitchell, B.A., M.S.
Citizen of Arizona state
All Rights Reserved without Prejudice
Opposition to 2nd Application for Order to Show Cause:
Page 14 of 15
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:
COMPANY'S OPPOSITION TO
SECOND APPLICATION FOR ORDER TO SHOW CAUSE;
PETITION FOR ORDER TO SHOW CAUSE; and
NOTICE OF CHALLENGE TO JURISDICTION,
WITH VERIFICATION
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 30, 1996
/s/ Linda Burns
________________________________________
Linda H. Burns, Citizen of Arizona state
All Rights Reserved without Prejudice
Opposition to 2nd Application for Order to Show Cause:
Page 15 of 15
# # #
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In Re Grand Jury Subpoena