Time: Sun Mar 09 22:44:46 1997
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Sun, 9 Mar 1997 17:29:04 -0700 (MST)
Date: Sun, 09 Mar 1997 22:42:00 -0800
To: (Recipient list suppressed)
From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: Notice and Demand to Dismiss IRS Conviction in USDC
This is part 2 of 2.
[This text is formatted in Courier 11, non-proportional spacing.]
(28) Interestingly enough, in a bankruptcy case in the U.S.
Bankruptcy Court, Middle District of Pennsylvania (Chapter 13),
Case No. 5-94-00839, titled In re: Francis Patrick Farrell v.
IRS/BATF, the alleged debtor sued out a compulsory counterclaim
against the IRS/BATF after the alleged creditor submitted its
proof of claim. The counterclaim showed an extent of corruption
unparalleled in American history, to which agencies of the
federal government will often resort, specifically by placing a
fraudulent "T-Code" on Individual Master File ("IMF") records.
(29) In this way, the IRS/BATF use Admiralty and Maritime
forfeiture laws to deprive a state Citizen of property and
assets, and to mis-classify Him as a "high level narcotics
trafficker." This occurred on November 17,1995! Why? See U.S.
v. Good, 114 S.Ct. 492 at 502, footnote 2 (1993). A similar mis-
classification -- "Illegal Tax Protester" -- is likewise an
oxymoron for violating the First Amendment (protest has never
been illegal in America) and for forcing a construction that
reveals an "illegal tax," for all the world to see!
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 10 of 18
SUMMARY
The United States District Courts ("USDC") have no criminal
jurisdiction whatsoever to prosecute a state Citizen within one
of the 50 states of the Union which comprises the United States
of America ("USA"), until and unless Congress says so.
Until and unless the United States (federal government) can
prove ownership over said geographical land mass, particularly
that parcel of land which is the private real property of the
Defendant, the USDC have no criminal jurisdiction whatsoever
within any of the 50 Union states.
Not a single Act of Congress vests the USDC, as distinct
from the DCUS, with anything but "civil" authority. There is
absolutely no criminal jurisdiction vested in said territorial
tribunals, authorized by Article IV in the U.S. Constitution.
Recent research has also proven that the federal judiciary
has sabotaged the U.S. Constitution and corrupted laws governing
the conduct of the federal courts. This has been done in part by
creating the false impression that the United States District
Court ("USDC") has territorial and subject matter jurisdiction
within the several states of the Union, particularly over
criminal prosecutions, when it does not.
The truth is that the USDC is designed to adjudicate matters
that arise within the federal zone, and the District Court of the
United States ("DCUS") is designed to adjudicate matters that
arise within the state zone. See U.S. v. Lopez supra.
On the face of the alleged indictment served upon Defendant,
the USDC is named. This is a fraud upon Defendant, and upon all
American People, who enjoy the fundamental guarantee of due
process of law. Sedition by syntax is not due process of law.
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 11 of 18
REMEDY DEMANDED
Therefore, Defendant hereby demands that this Article IV
legislative tribunal establish exclusive, original jurisdiction
by producing certified documents consisting of the following:
(a) Documentation showing "United States" (federal
government) ownership of each and every geographical location
mentioned in the instant indictment, wherein the alleged criminal
activity took place;
(b) Documentation from the Minnesota Legislature which
provides evidence of a cession by Minnesota state, surrendering
jurisdiction to the "United States" (federal government) over the
geographical location as stated in (a) above;
(c) Documentation pursuant to Title 40 U.S.C. 255, wherein
the "United States" (federal government) accepted jurisdiction to
the geographical location as stated in (a) above, or,
documentation showing concurrent jurisdiction with Minnesota
state over the geographical location as stated in (a) above;
Alternatively, absent the requisite documentation, Defendant
hereby demands that this USDC dismiss the instant case with
prejudice and in the interests of justice, pursuant to Rule
12(h)(3) of the Federal Rules of Civil Procedure. "Shall" as
used therein is mandatory. Confer in Black's Law Dictionary.
Dated: _______________________________________
Respectfully submitted,
______________________________________________
Everett C. Gilbertson, Sui Juris
Citizen of Minnesota state
(expressly not a citizen of the United States)
All Rights Reserved without Prejudice
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 12 of 18
Exhibit "A":
Federal Criminal Jurisdiction
It is a well established principle of law that "all federal
legislation applies only within the territorial jurisdiction of
the United States unless a contrary intent appears"; see Caha v.
United States, 152 U.S. 211, 215, 14 S.Ct. 513 (1894); American
Banana Company v. United Fruit Company, 213 U.S. 347, 357, 29
S.Ct. 511 (1909); United States v. Bowman, 260 U.S. 94, 97, 98,
43 S.Ct. 39 (1922); Blackmer v. United States, 284 U.S. 421,
437, 52 S.Ct. 252 (1932); Foley Bros. v. Filardo, 336 U.S. 281,
285, 69 S.Ct. 575 (1949); United States v. Spelar, 338 U.S. 217,
222, 70 S.Ct. 10 (1949); and United States v. First National
City Bank, 321 F.2d 14, 23 (2nd Cir., 1963). And this principle
of law is expressed in a number of cases from the federal
appellate courts; see McKeel v. Islamic Republic of Iran, 722
F.2d 582, 589 (9th Cir., 1983) (holding the Foreign Sovereign
Immunities Act as territorial); Meredith v. United States, 330
F.2d 9, 11 (9th Cir., 1964) (holding the Federal Torts Claims Act
as territorial); United States v. Cotroni, 527 F.2d 708, 711
(2nd Cir., 1975) (holding federal wiretap laws as territorial);
Stowe v. Devoy, 588 F.2d 336, 341 (2nd Cir., 1978); Cleary v.
United States Lines, Inc., 728 F.2d 607, 609 (3rd Cir., 1984)
(holding federal age discrimination laws as territorial); Thomas
v. Brown & Root, Inc., 745 F.2d 279, 281 (4th Cir., 1984)
(holding same as Cleary, supra); United States v. Mitchell, 553
F.2d 996, 1002 (5th Cir., 1977) (holding marine mammals
protection act as territorial); Pfeiffer v. William Wrigley,
Jr., Co., 755 F.2d 554, 557 (7th Cir., 1985) (holding age
discrimination laws as territorial); Airline Stewards &
Stewardesses Assn. v. Northwest Airlines, Inc., 267 F.2d 170, 175
(8th Cir., 1959) (holding Railway Labor Act as territorial);
Zahourek v. Arthur Young and Co., 750 F.2d 827, 829 (10th Cir.,
1984) (holding age discrimination laws as territorial);
Commodities Futures Trading Comm. v. Nahas, 738 F.2d 487, 493
(D.C.Cir., 1984) (holding commission's subpoena power under
federal law as territorial); Reyes v. Secretary of H.E.W., 476
F.2d 910, 915 (D.C.Cir., 1973) (holding administration of Social
Security Act as territorial); and Schoenbaum v. Firstbrook, 268
F.Supp. 385, 392 (S.D.N.Y., 1967) (holding securities act as
territorial). But, because of statutory language, certain
federal drug laws operate extra-territorially; see United States
v. King, 552 F.2d 833, 851 (9th Cir., 1976). The United States
has territorial jurisdiction only in Washington, D.C., the
federal enclaves within the States, and in the territories and
insular possessions of the "United States". However, it has no
territorial jurisdiction over non-federally owned areas inside
the territorial jurisdiction of the States within the American
Union. And this proposition of law is supported by literally
hundreds of cases.
As a general rule, the power of the United States criminally
to prosecute is, for the most part, confined to offenses
committed within "its jurisdiction". This is born out simply by
examination of Title 18, U.S.C. Section 5 which defines the term
"United States" in clear jurisdictional terms. Section 7
contains the fullest statutory definition of the "jurisdiction of
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 13 of 18
the United States" [sic]. The United States District Courts have
jurisdiction of offenses occurring within the "United States",
pursuant to Title 18, U.S.C., section 3231.
Examples of this proposition are numerous. In Pothier v.
Rodman, 291 F. 311 (1st Cir., 1923), the question involved
whether a murder committed at Camp Lewis Military Reservation in
the State of Washington was a federal crime. Here, the murder
was committed more than a year before the U.S. acquired a deed
for the property in question. Pothier was arrested and
incarcerated in Rhode Island and filed a Habeas Corpus petition
seeking his release on the grounds that the federal courts had no
jurisdiction over an offense not committed in U.S. jurisdiction.
The First Circuit agreed that there was no federal jurisdiction
and ordered his release. But, on appeal to the U.S. Supreme
Court, in Rodman v. Pothier, 264 U.S. 399, 44 S.Ct. 360 (1924),
that Court reversed; although agreeing with the jurisdictional
principles enunciated by the First Circuit, it held that only the
federal court in Washington State could hear that issue. In
United States v. Unzeuta, 35 F.2d 750 (8th Cir., 1929), the
Eighth Circuit held that the U.S. had no jurisdiction over a
murder committed in a railroad car at Fort Robinson, the state
cession statute being construed as not including railroad rights-
of-way. This decision was reversed in United States v. Unzeuta,
281 U.S. 138, 50 S.Ct. 284 (1930), the court holding that the
U.S. did have jurisdiction over the railroad rights-of-way in
Fort Robinson. In Bowen v. Johnson, 97 F.2d 860 (9th Cir.,
1938), the question presented was whether jurisdiction over an
offense prosecuted in federal court could be raised in a petition
for Habeas Corpus. The denial of Bowen's petition was reversed
in Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442 (1939), the Court
concluding that such a jurisdictional challenge could be raised
in a Habeas Corpus petition. But, the Court then addressed the
issue, and found that the U.S. both owned the property in
question and had a state legislative grant ceding jurisdiction to
the United States, thus there was jurisdiction in the United
States to prosecute Bowen. But, if jurisdiction is not vested in
the United States pursuant to statute, there is no jurisdiction;
see Adams v. United States, 319 U.S. 312, 63 S.Ct. 1122 (1943).
And the lower federal courts also require the presence of
federal jurisdiction in criminal prosecutions. In Kelly v.
United States, 27 F. 616 (D.Me., 1885), federal jurisdiction of a
manslaughter committed at Fort Popham was upheld when it was
shown that the U.S. owned the property where the offense occurred
and the state had ceded jurisdiction. In United States v. Andem,
158 F. 996 (D.N.J., 1908), federal jurisdiction for a forgery
offense was upheld on a showing that the United States owned the
property where the offense was committed and the state had ceded
jurisdiction of the property to the U.S. In United States v.
Penn, 48 F. 669 (E.D.Va., 1880), since the U.S. did not have
jurisdiction over Arlington National Cemetery, a federal larceny
prosecution was dismissed. In United States v. Lovely, 319 F.2d
673 (4th Cir., 1963), federal jurisdiction was found to exist by
U.S. ownership of the property and a state cession of
jurisdiction. In United States v. Watson, 80 F.Supp. 649
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 14 of 18
(E.D.Va., 1948), federal criminal charges were dismissed, the
court stating as follows:
Without proof of the requisite ownership or possession of
the United States, the crime has not been made out. 80
F.Supp., at 651.
In Brown v. United States, 257 F. 46 (5th Cir., 1919),
federal jurisdiction was upheld on the basis that the U.S. owned
the post office site where a murder was committed and the state
had ceded jurisdiction; see also England v. United States, 174
F.2d 466 (5th Cir., 1949); Krull v. United States, 240 F.2d 122
(5th Cir., 1957); Hudspeth v. United States, 223 F.2d 848 (5th
Cir., 1955); and Gainey v. United States, 324 F.2d 731 (5th
Cir., 1963). In United States v. Townsend, 474 F.2d 209 (5th
Cir., 1973), a conviction for receiving stolen property was
reversed when the court reviewed the record and learned that
there was absolutely no evidence disclosing that the defendant
had committed this offense within the jurisdiction of the United
States. And in United States v. Benson, 495 F.2d 475 (5th Cir.,
1974), in finding federal jurisdiction for a robbery committed at
Fort Rucker, the court stated:
It is axiomatic that the prosecution must always prove
territorial jurisdiction over a crime in order to sustain a
conviction therefor. 495 F.2d, at 481.
In two Sixth Circuit cases, United States v. Tucker, 122 F.
518 (W.D.Ky., 1903), a case involving an assault committed at a
federal dam, and United States v. Blunt, 558 F.2d 1245 (6th Cir.,
1977), a case involving an assault within a federal penitentiary,
jurisdiction was sustained by finding that the U.S. owned the
property in question and the state involved had ceded
jurisdiction. In In re Kelly, 71 F. 545 (E.D.Wis., 1895), a
federal assault charge was dismissed when the court held that the
state cession statute in question was not adequate to convey
jurisdiction of the property in question to the United States.
In United States v. Johnson, 426 F.2d 1112 (7th Cir., 1970), a
case involving a federal burglary prosecution, federal
jurisdiction was sustained upon the showing of U.S. ownership and
cession. And cases from the Eighth and Tenth Circuits likewise
require the same elements to be shown to demonstrate the presence
of federal jurisdiction; see United States v. Heard, 270 F.Supp.
198 (W.D.Mo., 1967); United States v. Redstone, 488 F.2d 300
(8th Cir., 1973); United States v. Goings, 504 F.2d 809 (8th
Cir., 1974) (demonstrating loss of jurisdiction); Hayes v.
United States, 367 F.2d 216 (10th Cir., 1966); United States v.
Carter, 430 F.2d 1278 (10th Cir., 1970); Hall v. United States,
404 F.2d 1367 (10th Cir., 1969); and United States v. Cassidy,
571 F.2d 534 (10th Cir., 1978).
Of all the circuits, the Ninth Circuit has addressed
jurisdictional issues more than any of the rest. In United
States v. Bateman, 34 F. 86 (N.D.Cal., 1888), it was determined
that the United States did not have jurisdiction to prosecute for
a murder committed at the Presidio because California had never
ceded jurisdiction; see also United States v. Tully, 140 F. 899
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 15 of 18
(D.Mon., 1905). But later, California ceded jurisdiction for the
Presidio to the United States, and it was held in United States
v. Watkins, 22 F.2d 437 (N.D.Cal., 1927), that this enabled the
U.S. to maintain a murder prosecution; see also United States v.
Holt, 168 F. 141 (W.D. Wash., 1909), United States v. Lewis, 253
F. 469 (S.D.Cal, 1918), and United States v. Wurtzbarger, 276 F.
753 (D.Or., 1921). Because the U.S. owned, and had a state
cession of jurisdiction for, Fort Douglas in Utah, it was held
that the U.S. had jurisdiction for a rape prosecution in Rogers
v. Squier, 157 F.2d 948 (9th Cir., 1946). But, without a
cession, the U.S. has no jurisdiction; see Arizona v. Manypenny,
445 F.Supp. 1123 (D.Ariz., 1977).
The above cases from the U.S. Supreme Court and federal
appellate courts set forth the rule that in criminal
prosecutions, the government, as the party seeking to establish
the existence of federal jurisdiction, must prove U.S. ownership
of the property in question and a state cession of jurisdiction.
This same rule manifests itself in state cases. State courts are
courts of general jurisdiction and in a state criminal
prosecution, the state must only prove that the offense was
committed within the state and a county thereof. If a defendant
contends that only the federal government has jurisdiction over
the offense, he, as proponent for the existence of federal
jurisdiction, must likewise prove U.S. ownership of the property
where the crime was committed and state cession of jurisdiction.
Examples of the operation of this principle are numerous.
In Arizona, the State has jurisdiction over federal lands in the
public domain, the state not having ceded jurisdiction of that
property to the U.S.; see State v. Dykes, 114 Ariz. 592, 562
P.2d 1090 (1977). In California, if it is not proved by a
defendant in a state prosecution that the state has ceded
jurisdiction, it is presumed the state does have jurisdiction
over a criminal offense; see People v. Brown, 69 Cal. App.2d
602, 159 P.2d 686 (1945). If the cession exists, the state has
no jurisdiction; see People v. Mouse, 203 Cal. 782, 265 P. 944
(1928). In Montana, the state has jurisdiction over property if
it is not proved there is a state cession of jurisdiction to the
U.S.; see State ex rel Parker v. District Court, 147 Mon. 151,
410 P.2d 459 (1966); the existence of a state cession of
jurisdiction to the U.S. ousts the state of jurisdiction; see
State v. Tully, 31 Mont. 365, 78 P. 760 (1904). The same applies
in Nevada; see State v. Mack, 23 Nev. 359, 47 P. 763 (1897), and
Pendleton v. State, 734 P.2d 693 (Nev., 1987); it applies in
Oregon (see State v. Chin Ping, 91 Or. 593, 176 P. 188 (1918) and
State v. Aguilar, 85 Or.App. 410, 736 P.2d 620 (1987)); and in
Washington (see State v. Williams, 23 Wash.App. 694, 598 P.2d 731
(1979)).
In People v. Hammond, 1 Ill.2d 65, 115 N.E.2d 331 (1953), a
burglary of an IRS office was held to be within state
jurisdiction, the court holding that the defendant was required
to prove existence of federal jurisdiction by U.S. ownership of
the property and state cession of jurisdiction. In two cases
from Michigan, larcenies committed at U.S. Post Offices which
were rented were held to be within state jurisdiction; see
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 16 of 18
People v. Burke, 161 Mich. 397, 126 N.W. 446 (1910) and People v.
Van Dyke, 276 Mich. 32, 267 N.W. 778 (1936); see also In re
Kelly, 311 Mich. 596, 19 N.W.2d 218 (1945). In Kansas City v.
Garner, 430 S.W.2d 630 (Mo.App., 1968), state jurisdiction over a
theft offense occurring in a federal building was upheld, and the
court stated that a defendant had to show federal jurisdiction by
proving U.S. ownership of the building and a cession of
jurisdiction from the state to the United States. A similar
holding was made for a theft at a U.S. missile site in State v.
Rindall, 146 Mon. 64, 404 P.2d 327 (1965). In Pendleton v.
State, 734 P.2d 693 (Nev., 1987), the state court was held to
have jurisdiction over a DUI ("driving under the influence")
committed on federal lands, the defendant having failed to show
U.S. ownership and state cession of jurisdiction.
In People v. Gerald, 40 Misc.2d 819, 243 N.Y.S.2d 1001
(1963), the state was held to have jurisdiction of an assault at
a U.S. Post Office since the defendant did not meet his burden of
showing presence of federal jurisdiction; and because a
defendant failed to prove title and jurisdiction in the United
States for an offense committed at a customs station, state
jurisdiction was upheld in People v. Fisher, 97 A.D.2d 651, 469
N.Y.S.2d 187 (A.D. 3 Dept., 1983). The proper method of showing
federal jurisdiction in state court is demonstrated by the
decision in People v. Williams, 136 Misc.2d 294, 518 N.Y.S.2d 751
(1987). This rule was likewise enunciated in State v. Burger, 33
Ohio App.3d 231, 515 N.E.2d 640 (1986), in a case involving a DUI
offense committed on a road near a federal arsenal.
In Kuerschner v. State, 493 P.2d 1402 (Okl.Cr.App., 1972),
the state was held to have jurisdiction of a drug sales offense
occurring at an Air Force Base, the defendant not having
attempted to prove federal jurisdiction by showing title and
jurisdiction of the property in question in the United States;
see also Towry v. State, 540 P.2d 597 (Okl.Cr.App., 1975).
Similar holdings for murders committed at U.S. Post Offices were
made in State v. Chin Ping, 91 Or. 593, 176 P. 188 (1918), and in
United States v. Pate, 393 F.2d 44 (7th Cir., 1968). Another
Oregon case, State v. Aguilar, 85 Or.App. 410, 736 P.2d 620
(1987), demonstrates this rule. And finally, in Curry v. State,
111 Tex. Cr. 264, 12 S.W.2d 796 (1928), it was held that, in the
absence of proof that the state had ceded jurisdiction of a place
to the United States, the state courts had jurisdiction over an
offense.
Therefore, in federal criminal prosecutions, the government
must prove the existence of federal jurisdiction by showing U.S.
ownership of the place where the crime was committed and state
cession of jurisdiction. If the government contends for the
power criminally to prosecute for an offense occurring outside
"its jurisdiction", it must prove an extra-territorial
application of the statute in question as well as a
constitutional foundation supporting the same. Absent this
showing, no federal prosecution can be commenced for offenses
committed outside "its jurisdiction", i.e. the federal zone.
# # #
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 17 of 18
PROOF OF SERVICE
I, Everett C. Gilbertson, 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):
NOTICE AND DEMAND TO DISMISS FOR
LACK OF ANY CRIMINAL JURISDICTION WHATSOEVER:
28 U.S.C. 1359; FRCP Rules 9(b), 12(b)(1),
12(b)(2), 12(h)(3)
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:
Henry Shea
United States Attorneys
110 South Fourth Street
Minneapolis [zip code exempt]
MINNESOTA STATE
Attorney General
Department of Justice
10th & Constitution, N.W.
Washington [zip code exempt]
DISTRICT OF COLUMBIA
Solicitor General
Department of Justice
10th & Constitution, N.W.
Washington [zip code exempt]
DISTRICT OF COLUMBIA
Dated: ______________________________________
______________________________________________
Everett C. Gilbertson, Sui Juris
Citizen of Minnesota state
(expressly not a citizen of the United States)
All Rights Reserved without Prejudice
[See USPS Publication #221 for addressing instructions.]
Notice and Demand to Dismiss for Lack of Criminal Jurisdiction:
Page 18 of 18
# # #
========================================================================
Paul Andrew, Mitchell, B.A., M.S. : Counselor at Law, federal witness
email: [address in tool bar] : Eudora Pro 3.0.1 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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