No Jurisdiction QED

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					                          United States District Court
                     For The Southern District Of New York

------------------------------------------------x     (faxed to Chambers @ 805-7912 on 5/06/2012 & by mail)

                                Plaintiff,                              03 Cr 00571 (JGK)

v.                                              Traverse to the United States’ partial
                                                submission that thwarts an unclouded
                                                response to D.E. 281’s directive given to
                                                address whether an ignored elementary
                                                jurisdictional prong, the interstate
                                                carriage     under     18:§134,     dictates
                                                VACATUR & MISSIO on these structural
                                                challenges that “Lufthansa’s air-cargo
                                                carriage flight 043 was exclusive to
                                                transport “mail-matters away” from
                                                United States’ departure point Newark,
                                                NJ for arrival at Frankfurt Airport,
                                                Germany”, as an international carrier
                                                unlicensed to transport cargo on domestic
                                                U.S. routes, in lack of standing as a §1341
                                                elementary interstate carrier, codified as
                                                “cardinal” anchor for criminal charges
                                                under federal law
CHRISTIAN T VIERTEL, Pro se Defendants

        COMES NOW, Christian T. Viertel, petitioner pro se, to traverse a “letter in
response” dated 4-23-2012 by plaintiff United States, “pursuant” to a Court directive to
state its position on two separate issues.

      Primarily, the United States’ proctrix defaults to a sole response, the “picnic issue”,
whether the instant petition under §28:1651 for a writ of VACATUR and MISSIO is
procedurally well anchored in view of “Kaminsky’s-Defendant-In Custody Rule1” [or, some
niche remains for a BOP curry & courtesy derailment. The BOP couldn’t deliver, this time2].

      An earlier 12/31/11 Petition, similarly anchored, was subject to an upwards transfer
[CA2:12-0231] seeking authorization to decide. Appellate decision is in pendency, whether
to mandate the District to decide the merits of a structural jurisdictional challenge, to wit,
an overt lack of “stating a valid claim of mail fraud” without the “interstate” element. An
appellate analysis issued recognizing petitioner’s position per his submission/application,
namely, issue a mandate to the District to decide the merits, or to be decided by the CA2
directly. AEDPA remains uninvolved here.

      The government laments whether “coram nobis3” is a just vehicle in brushing aside
Kaminsky’s clear language at 23 “When [instead] custody is not at stake, challenges can
only be made through the use of extraordinary writs like coram nobis”. But not only, this
proctrix brought no alternative avenue to reach the ultimate constitutional goal, that
justice for all shall be done as fiat justitia ruat caelum commands.

      If the “Second Branch” desires to fiddle with 28 U.S.C. §1651, it must rely upon Main
Justice and promulgated procedure, and may not impose imbroglio onto citizens and aliens
by violating separation of powers along its zealous miscarriage.

 Kaminsky v.United States,339 F.3d, 84,91(2nd Circuit,2003) at 23: “When [instead] custody
is not at stake, challenges can only be made through the use of extraordinary writs like
coram nobis…”
 This government previously branded petitioner with three separate & three false fugitive-
escapee labels, 3 out of 3, by malicious database fraud caused by persons under its direct
control using interstate wires and unauthorized access. BOP, at least under Lappin - since
canned – is a career offender for manipulation of “IN-Custody” “Out-Custody” designators.
 “Such a motion is a step in the criminal case and not, like habeas corpus where relief is
sought in a separate case and record, the beginning of a separate civil proceeding.” Kurtz
v. Moffitt, 115 U.S. 487, 494. While at common law the writ of error coram nobis was issued
out of chancery like other writs, Stephens, Principles of Pleading (3d Amer. ed.), 142, the
procedure by motion in the criminal case is now the accepted American practice.
      In a similar vein, government’s proctrix seeks to paper over fundamental problems of
responsibility over abuse of judicial resources, of tax payers assets and 10 plus years
abusing petitioner’s life, liberty, family and career, in tort. Proctrix, and proctrix’s bosses
had scienter of injurious materiality caused by government’s unlawful trespass, inter alia,
into forbidden territory beyond statutes, namely, in charging4 and over-litigating innocent
conduct that did not constitute a federal crime. Congress said so very clear, and said so by
exclusion of this “f-word” in §1341 and by inclusion of this “f-word” elsewhere inside Code
18. These proctors “economical view of the truth” (Kaplan,DJ.) is well noted on record .

               All U.S. attorneys must strictly vindicate the laws they have,
                              But not laws they wish they had.

      This generally accepted principle was abandoned, but here, five USA’s and three
AUSA’s also tossed aside their USM-Attorney Manuals teaching them about “interstate” and
about “foreign”, and all 8 failed miserably to make a “true legal audit” of § 1341’s reach.

      Similarly, added to that government’s misreading of §1651 [supra], if for “One of the
Nation’s [self- aggrandized] premier legal institutions” [see SDNY’s USA Office webtext @ ] 18: § 1341 is not expansively border-&-
ocean-crossing enough, it must route a complaint to the “First Branch” first (and be

  An isolated count of “mail fraud” was averred as a false “invoice-mailing via air freight”,
insubstantial and isolated as in “first and last time”. Petitioner sufficiently demonstrated
his total unattainability to prevoyance and remote-powers over “a third party’s
transatlantic transport” 3500+ miles easterly at his Mediterranean residence. It was a trial-
established true fact, that a “$8,120.00 Agate” bill was unforeseeably self-printed by Burda
Media Inc, who as a self-elected invoicee-payor, disbursed - three days earlier - an almost
identical amount of $8120.10 to Viertel’s real estate company account as payee by a
generic draft down-paying, unsolicited and non-stated, a revolving loan balance Burda
Media’s CEO maintained. Burda Media staff, all alone sans VIERTEL in France, self-
addressed, then self-directed their office printout to the intramural accounting office (of E.
Kiefer) on top of Sixth Avenue, exactly where Burda Media’s HP-Laser-printer was wired.
Even the single letter-size-paper sheet was Burda Media’s own stock unforeseeably
imprinted with “fake and unapproved Agate Information”. The sheet was fingerprinted,
scanned and analyzed by FBI’s Lab without a trace of VIERTEL, but Burda staff. Today,
Cohen’s prints can be found.

derailed, just as every time in a 100 plus years). However, as long as Courts assure that
official labels fit their contents, “The [SDNY USA-] Office prosecutes cases involving
violations of federal laws” Mr. John C. Lee shall no longer remain the lonely “nolled”
defendant pre-chosen over equals to taste justice’s sweetness.

                    Fictio cedit veritati. Fictio juris non est ubi veritas.

       “Fiction yields to truth. Where there is truth, fiction of law exists not” (11 Co. 51.)
signifies a false averment on the part of a [government] plaintiff ...the object of the
fiction is to give a court jurisdiction (emphasis added; see Black’s Law Dictionary 489).

                         Government’s seriatim Failure to follow directions

       This honorable Court’s directive was indubitable [D.E. 281]: “The Government shall
also respond to the petitioner’s argument with respect to the Court’s jurisdiction in this
case”. Evidently the United States “hypothesized” other, chimerical instructions like: “The
Government may rant whether it can find historical allusiosn for trespassing statutory language
even far away from legal precedencia and maybe at pre-trial motion practice, maybe in dicta, or
somewhere unmeasured by appellate review, as long as petitioner’s valid claim is disfigured.”

       What proctrix’s labeled “discussion” fails. Fitting words ring loud across state lines,
as Hon. Marcia Cook wisely stated: “Methinks the lady doth protest too much”[sic].

       As the government failed to grapple meaningfully with this “jurisdictional” and
wholesomely structural “interstate versus overseas foreign problem” it rather offers an
obtuse, puerile and conclusory diversion into la-la-land. Hon. Crotty’s respectable opinion
remains outside §1341’s scope challenged here, while “ex post facto” strikes out reliance
upon such new viewpoint.

       “Interstate” is the one crucial empowering element of §1341, without it, the law’s
application fails here, and not only because a non-scheming or scheming “public” was not
[law]fully pre-warned.

                                    No Precedential Exceptions

      exist, demonstrated by the government’s failure to located one citation, thus, let’s
stick along with the Hon. AJUSSC Scalia: “always tightly to the language of the statute”.
Stretching remains impermissible. Noteworthy is the government’s inability to identify a
single “private or commercial interstate carrier” affecting interstate commerce that would
nonetheless fly and arrive overseas in foreign lands ‘and not be excluded by virtue of the
statute’s limiting language’.

      This February, U.S. vs. Aleynikov 11-1126 (CA2, 2012) was decided, quoting:”see
generally Fed.Commc’ns Comm’n vs. A T & T Inc., 131 S. Ct. 1177,1184 (2011)
(“[C]onstruing statutory language is not merely an exercise in ascertaining the ‘outer
limits of [a words] definitional possibilities’….” (quoting Dolan vs. U.S. Postal serv., 546
U.S. 481, 486 (2006) [sic].

                                     No Substitute for foreign

      A stroll into U.S. Code reveals, that, throughout, interstate means never “overseas”
and never “foreign” but, instead, is very distinctly different : i.e. 14 C.F.R.–Title 14-Aero.&
Space, § 253.2 “This rule applies to all scheduled direct air carrier operations in interstate
and overseas air transportation.”[Emphasis added].

      Jones vs. U.S., 527 U.S. 373,389 taught in 1999, pre-indictment, that a statutory
phrase “gathers meaning from the words around it” inferring that valid meaning is perfectly
and coequally gathered from excluded words, like the missing “f-word” as in “foreign”.
Both U.S. attorneys, PB&MC [but also MH&JW et al], have collective scienter by use of key
words; i.e. in S1:07cr1079, where our duo triple-replayed “..means of interstate and
foreign..”, but here our duo seeks to game the Courts perpetually. If our duo claims
interstate is foreign, why bother to type out both words?

                                        Evidentiary hearing

      Furthermore, arguendo, if a proctor claimed that Lufthansa was an “interstate”
carrier, any Court must schedule, on shortest notice, an evidentiary hearing in public.

                      Recent Decision in Aleynikov 11-1126 cr (CA2) controls

       The distinguished Second Circuit reminded District Courts in Aleynikov, page 24 and
recalls Jones v. United States (2000), as controlling law:

                                       Obstruction of Justice

       All three defendants in U.S. vs. Blumenberg suffered from immeasurable government
recidivism by purposeful failure to consider law-text, “misconstruing” economic axioms and
facts, purblindness to certified registered corporate realities (a NY for-profit-corporation)
and “deep six” exculpatory matter as financial audits. Today, the “government’s premier”
USAO5 - still seems to unwisely rely upon already compromised unofficial imposters it
handpicked, and those it coached to misrepresent as real sources. Ex-Proctor Harris
“smoked” FBI’s Connor 0’Sullivan without hesitation [see GJ Tr.], who remembers those
low points of his career. Historic revisionism [“fictio”, supra] is exemplified in the clip

           It has not remained unnoticed that Blumenberg’s unique nexus to Aleynikov [aside
from uniform USAO for uniform plaintiff] lies in the offensive government trespass beyond
strict statutory limits. Both cases subsisted upon prosecutorial poisoning and serial
tomfoolery officiated by one AUSA Justin Weddle, nine years apart and full of twaddle.

below, self-evident, and perfectly fit to cement petitioner’s “lack of interstate carrier”
argument: “Germany via air freight” excludes all carriages by any possible “interstate
private or commercial carrier”. Q.E.D.

[underlines added].

                                             More Law

      Equally relevant here is Stoll vs.Gottlieb, 305 U.S. 165, 171(1938): “A court does not
have the power, by judicial fiat, to extend its jurisdiction over matters beyond the scope
of the authority granted to it by its creators”, and “Without jurisdiction the court cannot
proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to
exist, the only function remaining to the court is that of announcing the fact and
dismissing the cause.” Ex parte McCardle, 7 Wall. 506, 514 (1869).

      “On every writ of error or appeal, the first and fundamental question is that of
jurisdiction, first, of this court, and then of the court from which the record comes. This
question the court is bound to ask and answer for itself, even when not otherwise
suggested and without respect to the relation of the parties to it.” Great Southern Fire
Proof Hotel Co. v. Jones,177 U.S., supra, at 453.

      The requirement that jurisdiction be established as a threshold matter “spring[s]
from the nature and limits of the judicial power of the United States” and is “inflexible
and without exception.” Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 382(1884).

                                           Fiat ut petitur

      Therefore, petitioner prays, that this honorable Court recognizes plaintiff’s failure to
state a valid claim, grants the WRIT for VACATUR and MISSIO nunc pro tunc and orders all
such further relief this Court deems appropriate and in the interest of justice.

      Respectfully submitted this 6th day of May, 2012

                                                      Christian T Viertel, PETITIONER pro se
                                                      Ist. Di Torre Di Monterrivecchi
                                                      9/18 v. delle Ballodole Firenze, ITALIA
                                                      I- 50139 -
                                                      N/A Tel +1 360 227 6326

Copies of this submission were emailed to USAO for Preetinder Bharara, Esq., Appellate
Counsel Robert Culp, Esq., and airmailed to the SDNY Pro Se Clerk.

                                                      Pro se Office: Please file on DOCKET

Post Scriptum on COLORS OF LAW 2 pages follows:

Ps: To gauge the government’s full COLOR OF LAW spectrum, the “2004 letter clip” on
page 6 is well noteworthy [as gargantuan, unconscionable fallacies come and go]: an
entirely bogus averment from a “learned” USAO proctrix, who in 2004 and to this date,
deceptively maintains against much better - albeit vindicating insight - that “BMI’s checking
balance fell below a [certain] level” supporting a cadaverous theorem, propagating
malevolence: [this] “Agate check lowered the balance level causing the wire”.

    “This transfer on 6/24/96 came from Burda Holding”, is yet more U.S. hogwash
economizing on truth. Thus, no “substantive” wire fraud charge was actionable or
substantive at all but was made under darkest color of law, willfully in bad faith, at best.
Last month, petitioner pulled [after years of unsuccessfully attempts to glean Chase
banking files] from Polizei-archives relevant end-of-day June 1996 “valuta” balances BMI’s
(checking) on Chase account 038-1- 3801796 attached [last page], to wit: EOD balance
6/19 = $356,169.43. On that day, Agate Check #864077 had hit. $356k does nowhere
supported a “liquidity-wolf-cry” nor supported a “causation” from a “$8,120.10” check – at
less than 2.3% of BMI’s balance . The USAO manufactured this criminal charge accordingly
and on hyperbole, calculating that “Brady would never use his stick” reveal the
obstruction, and that truth would not disturb their con. Wrong. It did come out.

      Aside “Burda Holding’s” zero nexus to the “substantive wire” [Holding was but
“minor” client of BMI, never a “donor to BMI” (as the USAO bedizened), an anathema of
dangerous tax-exposure Burda group was too sophisticated to avoid], the “funds” were
BMI’s property inbound by wire from Burda GmbH, Offenburg, custodian of BMI’s German
wealth. The wire was a simple internal “spare liquidity call” of an entirely intra-mural
forex trade utterly unfit to turn into a federal charge under § 1343. This wire did neither
cause a loss in German Marks nor in NY dollars [but was a standard treasury procedure
triggered by what was believed to be a favorable USD/DEM exchange rate scenario].
Petitioner’s check cashing was uninvolved.

      Government’s proctors suffer from pathological denial of fiscal realities and that
Burda Media Inc. was turned into a “Profit Center” on 1-1-1992. BMI was a U.S. media
producer in full economic sense, and under double taxation treaty’s common rules that
“income is earned where value is created”.

      Petitioner could have smelled “hanky-panky” at BMI – even 3000+ miles away – and in
spite decade long assurances that the CEO is also President, thus BMI’s Commander in Chief
had the highest authorities to slice and dice and lend, borrow and spend, but petitioner
could not have known that Burda Media’s imperatorial, world-wide M.O. offended United
States criminal laws or this particular sovereign.      And, in fact, it never did.

      [1 pg. attached: June 1996 CHASE Bank document]

  These high Balances – of heavy exculpatory inconvenience – were certainly discovered,
subpoenaed and ascertained by FBI/SA O’Sullivan and he disclosed the balances to his
clients: AUSAs Harris, Weddle, and Cohen in 2001.
  1 of 431 check cleared in June 1996 for a total debit of $379,103.99 = 2,1% was Agate

Description: REPLY Traverse to Government