Writ for LACK of subject matter JURISDICTION by ProfessorViertel


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									                             United States District Court
                             For The Southern District Of New York

                                                    (by fax to Chambers @ 805-7912 on 4/8/2012 & mail)

                        Plaintiff,               2001 Criminal Case 00571 (JGK)

                                              Motion pursuant to 28 USC §1651 for an
                                             expedited writ of VACATUR & MISSIO of a
                                                Judgment of Conviction grounded upon
                                               deficit ab ovo of interstate jurisdiction
 v.                                          [§1341] over a international deliverance
                                                 by a bonafide non-interstate, private
                                                 courier [LH-German-Air-Cargo-Export
                                                 from Newark], and upon overt lack of
                                                venue, divesting this Court - ipso latæ
                                            sentenciæ - of art.III adjudicatory powers
                                                                             [ex parte]

                Defendants, pro se

        COMES NOW, Christian T. Viertel, a “hold-over” criminal pro se defendant, who, in
here, does not act as “involuntary plaintiff character” in a distinctly separate Prisoner
Habeas procedure he was justified to object to, thus, COMES to file an ex parte eo ipso
MOTION for a writ in criminal case 01-cr-571, to be recognized exactly under 28 U.S.C.
§1651 and for nothing more or less.

        THERE are no realistic limits to fundamental jurisdictional challenges to subject
matter neither on timing nor on seriality as these challenges can be “brought at any time
at any level of the proceedings” (see XV. below).

          Adjudicary powers of an art. III. Court to hear and to promptly decide – sua sponte
with or without notice - such challenges is mandatory and appropriately relied upon, thus,
the “transfer” or “rebrand” transmogrification into adjunctive or disjunctive civil (2255)
proceedings was inapposite, inter alia, pursuant to Kaminsky v. United States, 339 F.3d 84,
911 (2nd Cir.2003) for apparent absence of a sine-qua-non “defendant in custody”

          The District Court preferenced – sua sponte – in January to re-brand a
application for HABEAS” despite being nowhere close nor anywhere near AEDPA2. “Liriano”
inspissation tracks, interlocutory in nature, do not delimitate a District’s adjudicary powers
to decide this instant motion, inter alia, for simple “procedural” moves.

     i.     The District shall review whether the government falsely claimed law violations
            by the defendants under color of federal law, and take notice of defendant’s
            earlier submission – post trial – having a foundation in evidence, that this key
            transport document “Lufthansa Airway-Bill” [Appendix 3, page 16] was within the
            government’s reach at New Jersey Airport Liberty and elsewhere, and was a
            fundamentally requirement for a FBI “mail” investigation in cases when U.S.
            Postal Inspectors lack jurisdiction or refuse to act. The government knew of the
            transport details, knew the substantial exculpatory value of the transport details,
            but withheld the document in dishonor of Brady.
                 ii.   Haines vs Kerner , 404 U.S. 519, controls here and restraints obstacles
            in the procedural arsenal Federal Courts may no longer employ in its derailment
            of legitimate and substantial complaints as this one, which raise a very serious
            jurisdictional defect. See also : United States v. Ford, Dkt No. 03-1774 (2d Cir.
 at 23: “When [instead] custody is not at stake, challenges can only be made through the
use of extraordinary writs like coram nobis…” At 24 supra: "In order to invoke habeas corpus
review by a federal court, the petitioner must satisfy the jurisdictional `in custody'
requirement of 28 U.S.C. § 2255." Scanio, 37 F.3d at 860. “Because Kaminski was not in
custody in relation to the claims against his order of restitution, the court below lacked
subject matter jurisdiction to review them…”[emphasis added]
 The Districts “TRANSFER” is currently held in abeyance by the Second Circuit (12-231),
pending, inter alia, a government explanation of “in custody” conditions therein.
              Jan. 19, 2006) (Winter, Katzmann, Raggi): "[R]estraint must be exercised in
              defining the breadth of the conduct prohibited by a federal criminal
              statute."[Op.at 14, emphasis added]

       iii.   There is little inherently wrong with zealous prosecutorial charges as long as that
              zeal does not cross the line into violating defendant’s constitutional rights or
              trespasses those jurisdictional interstate requirements set by strict congressional
              zoning law’s as set in stone in § 1341’s statutory language. Here, the mail charge
              is off by miles never reaching the legal definition of the statute: “But while he
              may strike hard blows, he is not at liberty to strike foul ones.” Ruled Justice
              Sutherland in Berger vs. United States, 295 U.S. 78, 88 (1935).

       iv.    “There is a canon of legislative construction which teaches Congress that, unless
              a contrary intent appears, is meant to apply only within the territorial
              jurisdiction of the United States”. U.S. v. Spelar, 338 U.S. 217 at 222[emphasis
              added]. Here, in §1341, Congress attached no modifiers but instead spelled out
              the historically grounded “any private or commercial interstate carrier” limit of
              this statute, in reiteration of its settled intent on the statute’s clean and strictly
              domestic limitation demonstrated by subsequent use of the words “such carrier”.
              The “wider” option, argumendo, as in: “interstate and foreign commerce” was
              deliberately left untouched by Congress in §1341 thus specifically barring the
              Judicial Branch from reviewing any aspect of the international deliverance or
              transport away from the United States under §1341. Transcripts demonstrate,
              Congress was not intended on other “larger” option. We do not require assistance
              from any Federal Court precedent when analyzing the plain meaning of the terms
              used by the government in its third count: “international carrier”, as this a
              definitive clue, that “we ain’t close” to §1341.

        v.    §13413 : “Whoever, having devised or intending to devise any scheme or artifice
              to defraud, or for obtaining money or property by means of false or fraudulent

             pretenses, representations, or promises, or to sell, dispose of, loan, exchange,
             alter, give away, distribute, supply, or furnish or procure for unlawful use any
             counterfeit or spurious coin, obligation, security, or other article, or anything
             represented to be or intimated or held out to be such counterfeit or spurious
             article, for the purpose of executing such scheme or artifice or attempting so to
             do, places in any post office or authorized depository for mail matter, any matter
             or thing whatever to be sent or delivered by the Postal Service, or deposits or
             causes to be deposited any matter or thing whatever to be sent or delivered by
             any private or commercial interstate carrier, or takes or receives therefrom,
             any such matter or thing, or knowingly causes to be delivered by mail or such
             carrier according to the direction thereon, or at the place at which it is directed
             to be delivered by the person to whom it is addressed, any such matter or thing,
             shall be fined under this title or imprisoned not more than five years, or both. If
             the violation affects a financial institution, such person shall be fined not more
             than $1,000,000 or imprisoned not more than 30 years, or both.” (June 25, 1948, ch.
             645, 62 Stat. 763; May 24, 1949, ch. 139, §34, 63 Stat. 94; Pub. L. 91–375, §(6)(j)(11), Aug. 12,
             1970, 84 Stat. 778; Pub. L. 101–73, title IX, §961(i), Aug. 9, 1989, 103 Stat. 500; Pub. L. 101–647,
             title XXV, §2504(h), Nov. 29, 1990, 104 Stat. 4861; Pub. L. 103–322, title XXV, §250006, title
             XXXIII, §330016(1)(H), Sept. 13, 1994, 108 Stat. 2087, 2147.)   [emphasis added]

      vi.    Section §1341 (in all earlier versions and the 2001 version cited above, or in its
             current version) is inoperative and inapplicable to international deliverance that
             occurs “without” the United States into and in a sovereign foreign country
             [Germany] and §1341 is equally inoperative when “such” a non-interstate
             “carrier” was alleged to have made transport and any allegation to cause such
             transport is innocent. It is equally inoperative when “such” non-interstate carrier
             was drafted, as follows: Indictment page 14 [see: COUNT ONE: Conspiracy , “2.)
             …At the end of each month, Burda Media sent to Burda Holding, via an

    Original, partial view of indictment text :

            international freight company, the original invoices submitted by the
            vendors.”(emphasis added)]

    vii.    And on page 11 [see Appendix for Indictment pages 1 & 11: “such matters and
            things, to wit, FRITZ G.BLUMENBERG, JOHN C. LEE, and CHRISTIAN T. VIERTEL,
            the defendants, caused Burda Media to send from New York, New York to Burda
            Holding in Offenburg, Germany, via an international freight company, phony and
            inflated invoices that BLUMENBERG, LEE and VIERTEL submitted to Burda
            Media.”(emphasis added)] As charged in Count THREE [18 U.S.C. §1341, §1346
            and §2] in the June 14, 2001original indictment. The conduct charged above (and
            below repeated) was outside the truth and the statute’s territorial limit without
            conferring rights or imposing duties.

    viii.   And on page 1, 11, 12 of JAMES B. COMEY’s “S1” indictment of Feb.14, 2002
            which added other counts for two accused, but not for this movant.

     ix.    And on “S2” for this applicant the substantive “international type mailing” was
            “dated and limited” to a single item : [Agate Invoice for] $8,1205:

 The District Court resorted to DENIAL, a regression into those dark ages
which had deemed genuine and new information as sinful and as a punitive
attack on intellectual rulers, even if axiomatic proof, exculpatory
documents and sworn statements point otherwise to contradict fabricated
   x.   Equal importance to zee U.S. people and to non-residents and occasional alien
        visitor’s has an understanding what “duties” hundred thousands of public laws
        create. As U.S. diplomatic posts overseas issue VISAS, just a few allow access to
        its “public” libraries stocking less than 1% of currently valid public laws in
        documented format, but often point to internet resources like
        http://www.gpoaccess.gov/plaws/, a site, which expired. However, some concerned

evidence presented at trial by the ruling branch, presided by unelected
dot.gov-lifetime-appointees. Such a Court’s seriatim DENIAL to accept
driven, underscores that mail-count-#3 was still borne through total
corruption and reached Kafkaesque levels to consciously avoid destruction
of a house of biased government cards:
a) an unidentified “international freight company” was, in fact, LUFTHANSA
“Luftfrachtführer” entirely immune to §1341 engulfment or transport.
b) DEPARTURE AIRPORT EWR was BEYOND the Southern District of New York in
c) DEPARTURE DATE 6/28/1996 WAS CHARGED in Error: LH Flight 403 operating
June 29th, 1996 carried “substantive BURDA document” air-cargo transatlantic
to Frankfurt and reloaded onto Munich on LH Flight 142/30th June 1996
d) ARRIVAL AIRPORT DESTINATION was botched - not “as marked”- in the
government charge, as the factual arrival was NOT “Offenburg”, but Munich
Airport, in Germany,
e) addressee was NOT Burda Holding in Offenburg but M&M Air-Cargo in Munich
Airport, Germany,
f) Upon foundation in evidence, the charged “original invoice” as a $8,120
(Agate Invoice) – was not exported “to Germany” and was “undelivered”,
because this lonely original “Agate” unikat printed after June 20 directly
at BMI’s office laser by BMI’s scriveners. This ORIGINAL and certain other
ORIGINALS were decidedly kept at BMI’s office in NY awaiting forensic staff
auditor Dr.Maginot upon telephone instructions around June 24/25 to Kiefer
at home in Lindenhurst (NY). Bookkeeper Kiefer attached an “Agate”
photocopy but not the charged ORIGINAL to her monthly Cash-Run-Report air-
shipped to BMI’s own billing subcontractor “BURDA Verlagsservices GmbH” in
Offenburg. These “reports” were not ever shipped to Burda Holding (as
deceptively charged), a Holding company without nexus to operations.
        public officials at outposts point to Congress, where another newer site:
        www.crs.gov reports for “The People”. http://opencrs.com/document/94-
        166/2010-03-26/ is such a site, which openly excludes 18 U.S.C. §1341 from its
        analysis of “Extraterritorial Application of American Criminal Law, March
        26, 2010 - 94-166”. A proper source for a future USAManual.

 xi.    Applicant– is a non-immigrant ex-visitor pro se and not lawyer’d-up – has had
        warranted reliance upon congressional declarations. American Jurisprudence
        reality is hopelessly kept treacherous on “Staatsraison” grounds, and whether
        local defense counsel competes for the ineffectiveness [IAC] trophy, or CJAs are
        in a venal panic over poverty from less or no future CJA-jobs, or are spell-bound
        rent seekers under hyped-up toxic “air of kowtow to federal almightiness”, fact
        remains that 2-branch-rich hydras constitute an adversarial government
        apparatus, which in this case played “clueless” what “interstate commerce”
        really defines, or, argumendo, those two dot.gov branches were the type of
        “scienter” Justice Sutherland calls “foul” actors [supra] whose bad faith resulted
        in powerful malfeasance.

xii.    The Supreme Court issued its conclusions which Justice Scalia’s taught to the
        Second Circuit in Morrison vs National Australia Bank Ltd. Et al , SCOTUS 08-1191
        of June 24, 2010: “It is a "longstanding principle of American law 'that legislation
        of Congress, unless a contrary intent appears, is meant to apply only within the
        territorial jurisdiction of the United States.' ". EEOC vs. Arabian American Oil
        Co., 499 U. S. 244, 248 : “When a statute gives no clear indication of an
        extraterritorial application, it has none “(emphasis added).

xiii.   "The intention of the legislature is to be collected from the words they employ.
        Where there is no ambiguity in the words, there is no room for construction. The
        case must be a strong one indeed, which would justify a Court in departing from
        the plain meaning of words ... in search of an intention which the words
        themselves did not suggest." United States v. Wiltberger, 18 U.S. 76, 95-96, 5 L.

            Ed. 37 (1820) (Marshall, C.J.) as comfortably relied upon by the Second Circuit in
            Trapilo, 130 F.3d 547 (1997).

     xiv.   Once, as in this motion, the Court’s jurisdiction over a charged “international”
            deliverance on June 28, 1996 to Offenburg, Germany is challenged under §1341’s
            interstate limits, Courts have “no discretion to ignore the jurisdictional
            challenge” and, moreover, when at any point in time the charging language
            states claims that are plainly recognizable from afar to have crossed the sacred
            line of the statute’s jurisdictional fundamental boundaries of the domestic
            territory of the Continental United States, it is incumbent on a Court to take
            action upon such discovering notice, even if previously neglected, willfully
            ignored or just overlooked, or to act sua sponte in order to preserve the sanctity
            of constitutional rights and to insure that a conviction is not the product of any
            jurisdictional transgression, in particular when a case had multiple “learned”
            judges who either failed to detect, chose to noiselessly countenance or willingly
            ignored jurisdictional trespass at earlier stages. There are no time limits for
            jurisdictional challenges. “Law of the case” is equally void as res judicata does
            not survive to trump facts and a jurisdictional defeat, which by itself may be
            brought at any time, like right now.

                       Historical Background – sans – official revisionism

      a) This applicant (03) was indicted6 jointly with Fritz G. Blumenberg (01), who, as the
         transcript revealed, was not only an alien in a slowly imploding state of mind but a

    Circumstances and timeline inside the Pat Moynihan U.S. Courthouse on June 14, 2001
were – unreassuringly - more than murky, as Magistrate Dollinger and peers were
unavailable, unwilling or unable to “accept a BILL for filing” or unready to render process
to a putative “TRUE BILL” was ducking from OPEN COURT proceedings recordable by SDNY
reporter(s) and became a non-event without a calendar call ledger entry. Furthermore, due
to this procedural blunder OPEN COURT PROCESS became a structural error that caused
         blatantly unconvinced allocator who was being coaxed in 2002 into an imperfect
         guilty plea to “violations” of federal criminal laws he was unaware and untrained to
         even grasp, nor did profit from VI. Amendment protections for effective legal help by
         a sufficiently professional guide competent to grasp law-texts and detect whether
         jurisdiction, materiality and these other elements of each “crime charged” were
         satisfied or were not. His plea, in which he was free not to cop acceptance of guilt
         for any conspiracy charge, inter alia, was an actual constitutional nullity and as he
         learned later, also violating “Padilla’s” IAC rules for alien plea limits in cases that
         entail unpronounced, covertly undisclosed collateral extra-judicial and extra-
         Pimentel punishment and hide preordained “Rumpelstiltskin” forfeiture of
         substantial old-age-Social-Security-benefits. Blumenberg’s 2010 unilateral plea-
         withdrawal was consequential for the factual innocence of violations of federal laws
         discovered after he had recuperated and regained intellect, memory, facts and
         Burda records. From his German home, he effectively and irrevocably declared
         unilateral withdrawal of his 2002 guilty plea for good cause, et ne bis in idem7.

     b) Defendant (02) was the sole American, John C. Lee, charged in conspiratorial
         “overt” acts and charged to have caused more overseas deliverances that (01) and
         (02), but Lee was unpremeditatedly nolled on July 3rd, 2002 under a veil of patriotic

more structural errors impugning defendant’s substantial constitutional protections when
magistrates are foreclosed from picking a random Art. III. presider from the spinning barrel-
‘o-chance courts require to be used. “Pre-ordainment” is often government’s preference
[see DJ Moore at SDFL]. The pretense that at one D.J. is just as impartial or biased as
another is simply not true. That’s what the barrel teaches. This barrel stood frozen on
June-14-2001 afternoon as court reporters reported to this defendant on a calendar page
inspection to prove.
    Blumenberg was convicted 1998 in Germany for 5 single violations of executive trust
positions to a 12 months term of unsupervised probation, a $3’000.00 fine – sans – Burda
restitution, highlighting his “singlehanded Agate Invoice-manipulation” of June 21, 1996,
which was resurrected as - cause célèbre – for an untrue 2001 bill in apriority violations of
double jeopardy treaty perverting §1341’s promulgated statutory limits.
       secrecy to conceal magic wand waiving by his competent counsel off stage
       (jurisdiction shortage, time-bars and constructed amends) and to avoid that the two
       putative co-conspirators discover the legal invalidity and keep the government in
       game, in power and under color of law. (“Equal Justice for All” was just dyed un-

    c) An original June 14, 2001 indictment hastily charged a “conspiratorial triple ham
       sandwich team” during its final hour and beyond, inter alia, with federal criminal
       pseudo conduct for a “vintage June 1996 interstate mail violation” pursuant to
       section §1341; subsequent super-indictments maintained this bogus charge while
       constructively amending additional charges for Lee and Blumenberg [nil for this
       applicant], and simultaneously expunging the bogus three-way conspiracy charge.
       Other collateral “charges” under §371/§2/§1343/§1346 were simple “USAM
       boilerplate” window dressing exercises to disguise time-barred conduct and
       legitimate NY-State activity and are insignificant in this application.

    d) The federal government’s authority to charge material pecuniary fraud claims
       require a fundamental prong: FEDERAL JURISDICTION. Also required are venue and a
       local loss by a “domestic” complainant (a “referral”). Upon review of corporate
       documents, the government found neither, because the conduct was international in
       nature and lacked a genuine local victim and an airport located inside the SDNY. The
       official efforts to fabricate under Color of law commenced.

    e) The government supplicated an entirely untenable “micro-economic theory”
       pursuant to which a “thirty plus year old New York domestic business corporation,
       named Burda Media Inc.8 [BMI] conducted entirely “charitable” news-gathering just

 a 100% subsidiary of an un-disclosed German corporation which uncomfortably disturbed
the prosecutions perverted theories, was later discovered to have been Burda GmbH,
holder of all 200 “$100 par-value-shares” issued January 27, 1978. Burda Holding
GmbH&Co. K.G. held no shares at any time. It is still dark why the government “botched”
these material facts in a white-collar-accounting case. However, government reliance upon
distorted and worthless advice from biased white-shoe bar members is a classic admiration
syndrom that tends to mistake high hourly-billing rates for integrity.
      like a “hobby” from luxury headquarters in Rockefeller Center. With a staff of 30,
      this $8+ million [$9,8 million turnover in 1995] output-worthy BMI “Boutique” was
      colored by the government as a “Not-for-Profit” outfit – some unidentifiable “magic
      branch construct”, despite apparent lack of a charitable NY business license or a
      corporate NFP resolution to fit its product output and billing. Rube Goldberg Esq.
      helped prepping these embezzlements for a dazzled Grand Jury, and post-conviction,
      in Appellee USA’s surfeit of frivolously claims [FN 9 next page] crafted to pass a
      conceivably disinterested or inattentive panel’s muster. These factual mutilations [in
      FN 9] demonstrate a scary caliber of prosecutorial terrorism, pathological typhlosis
      disorder and blunt propensity to deceive juries, defendants and courts altogether for
      outright malfeasance. Noteworthy9 is Appellee’s power-hungry “interstate”
      obsession bluntly prostrating [utterly immaterial] transnational German bank wires10
      into “domestic cables” in shocking disrespect of geopolitical boundaries.

      FN 9 : Government Reply Brief in 03-1364 (2nd.Circuit) on direct Appeal [at Page 6]

  Burda group’s forensic auditors certified in 1995/1996, that “every wire-transfers to NY”
was an “intramural” non-event lacking economic consequence to beneficial ownership and
thus “immaterial” [Mssrs. Maginot, Dr. Flatter in June 1997]. A justice system’s disrepair is
exposed when the adversary in the process auto-determinates exculpatory evidence, audits
and document materiality whether to allow Brady discovery to the defense bar, or naught.

      f)     The interstate commerce aspect of this case arises as the main prong of

a section §1341 offense which Congress limited to domestic transportation. If that

prong cannot be satisfied – and here it is unreachable - then all three defendants

were innocent of breaking federal law §1341. The fact of hand-picking the sole

American - John Lee - while being luxuriously armed with caliber-celebrè-counsel –

just one out of three defendants - is constitutionally untenable and posits those

dysfunctional CJA-hires [ those VI.Amend. graced bar-card-holders] directly into

Strickland’s IAC-bannered penalty corner.

      g)     Also, a legislature could not plausibly be understood to have used the

loaded term “interstate” [without any other modifier in §1343] if it had not meant to

refer to specific domestic boundaries within these interstate carriers, couriers,

transporters, like USPS and UPS operate and within Congress’ dominion. Congress

well understands its lack of authority over Universal Postal Union [www.utu.int ], a

United Nations agency, which manages exclusively international mail matters for 191

member Nations from Bern, Switzerland. “This is not a circumstance,” law professor

L.H. Tribe at Harvard stated “in which our courts have any plausible point of entry.”

      h)      Therefore, this Court shall hold itself in lack of – nunc pro tunc - subject

matter jurisdiction under art.III, §2, 18 U.S.C. § 3231 et al. over the charged conduct

         and non-domestic events which plainly did not arise from violation(s) of §134111 of

         U.S.Code #18. Hypothetical jurisdiction is no jurisdiction at all12.

         Therefore, applicant moves based upon 1) the foregoing, 2) all facts on record, 3)

plain language of statute §1341 and 4) resulting absence of jurisdiction ab ovo for VACATUR

and MISSIO of the Judgment of Conviction and underlying indictments.

         Respectfully Submitted April 8th 2012
                                                          Christian T Viertel, Def. 003, pro se
                                                                Torre Di Monterrivecchi
                                                                9/18 via delle Ballodole
                                                                Firenze, TO ITALIA 50139
                                                                +1 360 227 6326

Copies of this submission were courtesy emailed to USAO of Mr. Preetinder Bharara,
Appellate Counsel Robert Culp, Esq., mailed to the SDNY Pro Se Clerk and to the Hon.
Associated Justice Scalia [FYHI] by delivery.

Please file on DOCKET                                     Appendices: pages 14, 15, 16

   The federal mail-fraud statutes are "our Stradivarius, our Colt .45, our Louisville Slugger,
our Cuisinart—and our true love," wrote former Assistant U.S. Atty. Jed S. Rakoff. "We may
flirt with [other laws] and call the conspiracy law `darling,’ but we always come home to
the virtues of [mail fraud], with its simplicity, adaptability and comfortable familiarity,"
Rakoff wrote. "It understands us and, like many a foolish spouse, we like to think we
understand it." And sometimes, nobody does. More by Rakoff: “I don't have any respect for
judges who arrive at the result first, and then try to figure out some way they can bend the
law to reach their particular predilections.".

     Such adjudications are “ultra vires” [Scalia, J.] in Steel Co. vs Citizens, 523 U.S.83(1998)
First and Last Page of the “Indictment” as filed in “closed Court”:

Page (11) of the Indictment:

Appendix 3 page 16: LUFTHANSA transport lading bill #020-9231-8074 of June 28, 1996


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