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SDNY Recon Motion

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SDNY Recon Motion Powered By Docstoc
					                              United States District Court
                         For The Southern District Of New York

--------------------------------------------x       (fax to 805-7912 Chambers May-14-2012 & mail)

UNITED STATES OF AMERICA,

                                Plaintiff,                       (03) 2001 Cr. 00571 (JGK)
   v.                                                       MOTION FOR RECONSIDERATION

FRITZ G. BLUMENBERG, JOHN C. LEE,                                   08 Civ. 7512 (JGK)
CHRISTIAN T VIERTEL,         Defendants                            [___published____]
----------------------------------------------x

            COMES NOW, Christian T. Viertel, defendant – maioris pro se – respectfully prays this
Court to reconsider its recent Opinion DE 283, to reassess the charge word by word, the
deeds and omissions on record, i.e., Tr.245UBLUP pg.24(intra), and subsequently to
withdraw its opinion and to issue its amended opinion reflecting upon valid reason but
without invalid revisionism upon the jurisdictional basis of the June 14th, 2001 Grand Jury
pronouncement indubitably promulgated – as indicted1– whose words: “Delivery by
international freight company” prong the Court scorned, even worse, the Court harbored
as fugitive while carving its own, D-I-Y history. A Court is adjured to directly address an “AB
OVO LACK OF INTERSTATE JURISDICTION” on the record prima facie, which is utterly unfit
for apotheosis of Utopia, by its “flawed ultra-post-facto nativity” introduction of an




        1



                                                   1
uncharged “freight forwarder”. This Court’s arbitrary reliance upon syllogism has lead to
misplaced faith in lesser ignobility. Abuse of discretion is a huge harmful error, and is
preserved for an eventual appeal de novo.

       The basic question here is : Whether a charged “Delivery by international airfreight
company ….to Offenburg, Germany” can be bonafide interstate transportation.

       The Court proposes a new tack, but botched its response to whether “Delivery”
means actually “Pick-Up”, and whether “Offenburg, Germany” is near to Liberty Airport in
NJ, USA, whether Burda Media was even customer of the uncharged local gypsy freight
forwarder, and “never mind” Burda Holding getting the international delivery in Germany.

                  There is Jurisdiction to Rule on the Motion and to Vacate Ab Ovo

       Although motions to reconsider are available to correct manifest errors of law and
fact they are not expressly provided for by the Federal Rules of Criminal procedure, courts
have long recognized that litigants may properly file them and judges may properly rule
upon them. See, e.g., United States vs. Dieter, 429 U.S. 6, 8n 3(1976) (referring to motions
to   reconsider    in   criminal   cases   as   a       “traditional   and   virtually   unquestioned
practice”)(internal quotation omitted); United States vs. Ibarra, 502 U.S. 1, 4-7(1991). See
also United States vs. Clark, 984 F.2d 31, 33-34 (2nd Cir.1993). More specifically, motions
for reconsideration in criminal cases are part of the accepted practice in this District.
And: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. 2006): "[R]estraint must be exercised in
defining the breadth of the conduct prohibited by a federal criminal statute."[Op.14
emph.added]. Jurisdiction to rule on this limited motion is continued by statute and FRCrP.

                                           Arguments I

       A) Movant recognized that “Courts, whose jurisdiction are challenged or recusal
          demanded, darkly consider substantial risk of damage to their reputational
          assets     lightly   asserted    by       justice    administers”     [H.”Heinz”    Green,
          DJ,D.D.C.:“Federal Courts are not the Vatican”], while movant demands what
          impartiality commands and oaths prohibit, namely predilective preponderance of


                                                    2
   dystopian dimensions, and when fundamental adjudicatory questions are at bench
   and at stake, and when the government’s “historic charge” was cut in true stone
   and is no more fungible.

B) The Court’s utterly novel, uncharged and tangential “Hudson Crossing”
   considerations intrinsically concede that the previously challenged interstate
   element in Count 3 fatally relied upon an “international freight company” [sic] to
   “deliver [an] Agate Invoice to Germany” in June 1996, exactly how international
   carriers like Lufthansa could be foreseen, and be expected to perform. The
   defendant didn’t get to see “Agate’s” first invoice ever [printed ‘96 at BMI’s
   office laser] until discovery, “10¢ents” error and all, but was still baselessly
   accused to have caused “loss” in BMI’s books. However, the government’s charge
   excluded a “gypsy trucker” and excluded a “Pick-Up or placement moment” both
   items uncharged, and, most importantly, produced an indictment that was
   distinctly unqualified to serve as a valid sine-qua-non “Notice of Wrongdoing”
   against which defendants must defend [preferably though, blindfolded]. A Judge
   could have “helped out” its Grand Jury in ‘96, but did not. This Court, however,
   may not conquer these abandoned trucks and functions ultra post facto in 2012.
   [“No ticky no laundly”]

C) The opinion exercises in plain hypothesis, albeit hits auto-tilt instantly on its
   fallback methodology: “[Mailings] may be done by “others”, as long as [they]
   were foreseeable to a defendant”. When this Court now, 2012, presents a “gypsy
   livery truck”, it simultaneously throws all “prèvoyance under the bus”: A “gypsy
   truck” was [a] unforeseen, [b] unforeseeable and [c] exclusive of furtherance
   when stuck at Liberty Airport without address. Agate’s was addressed, but
   elsewhere: Manhattan, New York, un-prepped for voyage to nowhere:




                                      3
      D) The Court shall seek consolation from and may blame its own fellow branch II
         folk’s pronouncement precision [see:10-1-2002 Tr.1889-90]: “sent to Germany”
         [22], and branch II’s equally precise exclusions of an hint to “A gypsy’s Liberty
         Airport excursion and paper dump”, just déjà vue when the Court unconvincingly
         relied upon its own “self-sustenance2” analysis, hopelessly botched:




      E) The challenge in this MOTION AB OVO entirely relies upon the only true & clear
         language of its TRUE BILL’s accusations and the underlying statute, terms which
         must advise a defendant, more so any unsuspecting alien from a free democratic
         republic, of the official allegations against him, in particular when a Court might
         not have plans to grant a common right for a bill of particulars, rejecting the


2
  When the Court bungled BMI “audit’s” term “self-sustaining” for BMI’s independent stand
in its “Opine May 2005”, despite dictionaries @ NYU’s business library being free nearby.

                                             4
   demand forthwith, well noted by seasoned jurists. Bench diversions from the
   original TRUE BILL’s plain “jurisdictional element issue” to elsewhere into the
   future and micromanage backwards on hindsight are employing witchcraft. It is
   also true that Rube Goldberg doesn’t help out with jurisdictional prongs.



F) But, to be very clear and understood:

     i.   Kiefer, BMI’s bookkeeper, an “accounts payable clerk”, had no function in
          daily/monthly export-shipment logistics. Not her job. And BMI was not the
          exporter/shipper on any of those daily international airfreight bags!

    ii.   If Kiefer “would have said”, BMI was an “Export-Shipper” and caused
          daily/monthly “international deliveries” – she’d spoken untruth, but she
          did not speak the untruth. She was uninformed, and said so(see II,1.intra)

   iii.   But, Kiefer did receive an entirely unconnected statement then, which she
          “entered on June 28, 1996” and “paid on July 16, 1996”: a detailed
          “APEX” [see: gypsy livery trucker, supra] statement for $2,475, which
          listed just one lonely “outbound 65kg shipment” for $362.80 to Hamburg
          for “FRITA BLUMENVERG”; contents: Press Material, Personal Effects,
          shipped on 28-May-96, a month earlier, time-barred. [see proof on 3 pages
          EVIDENCE annexed]

    iv.   This APEX statement puts any averment to final rest that BMI was an
          exporter/shipper for those export-bags with “Agate’s Invoice” in question,
          and it voids all the “cause chatter” the government craved for. No carriage
          mandate, no issued carriage instructions, no addressed Onion Bags, no
          payment for carriage, no postage stamps (soto speak).

    v.    Consequently, the defendant could not have “caused” BMI, because they
          were not a shipment party. Shipper and consignee were others, and
          certainly not – at the delivery end - Burda Holding. The government just
          fabricated the whole crime. Cheney called this “hogwash”.




                                       5
             vi.   But, this distinguished Court can’t rely upon Pontius Pilatus3, this Court
                   had distinguished scienter all along, that the distant movant could not
                   possibly have “caused” a thing, while “the objects” were entirely
                   unreachable and bogus. Conspiracy is genuine dystopia.



                                              Arguments II



         1) Defendant’s respectful move for reconsideration has a simple reason in that it
            appears the Court lost track of its only operative “True Bill” which substantively
            charged: “Delivery by international freight company from New York to Burda
            Holding in Offenburg, Germany”[FN1] over hearsay reference to dubitable “trial
            truthiness”[ real facts’ ugly sister] (Op.@5) “There was evidence from
            which the jury in this case could have found, that the
            interstate carrier element was met, however, because there
            was evidence that showed that the fraudulent invoice[s] at
            issue were routinely sent by Burda’s New York City offices to
            the airport in Newark, New Jersey, using Apex”. [Kiefer’s quote
            omitted, but see Tr.29V8VIE2 pg 100, line 24: “I’m not sure who it was….”]



         2) This altogether novel “carrier language” was construed as a post factum
            transmogrification in dubius [fide] to ultra late-advance a bogus “delivery”
            logistics theory, far away from the true bill, far away from the statutes, far away
            from the jury instructions, and far away from Germany. In fact, [partial] Jury
            Instruction templates [see: #25, 29 appendices] direct from courtside on
            1.October 2002 demonstrate that this distinguished Court instructed the Jury to
            “follow the indictment” and did not instruct them to follow some untold “whacko
            gypsy conveyance” as the enabling, operative jurisdictional transporter.




3
    Pontios Pīlātos, Tiberius’ governor of Judea from 26 CE to 36 CE washed his hands of guilt

                                                 6
        3) This distinguished Court stated clearly in its lengthy “denial” opinion4 of May 4th,
            2005 dated “D.” @ 23: “[t]he fraudulent scheme in this case worked because
            fraudulent invoices were air freighted from New York and because funds were
            wired from Germany”. The Court’s current “Gypsy Theme” had, apparently, not
            yet been conceived during May 2005. Conception streamed in 2012 upon 500 Pearl
            Street, and it was not immaculate.



        4) “Delivery by international freight company” is evidently Lufthansa and only
            Lufthansa here as the lone principal carrier, because, logically, a second gypsy
            deliverer can’t simultaneously drop off “matter” on delivery in Offenburg,
            Germany. Lufthansa was the only operating carrier, but Lufthansa is not an
            interstate carrier, because it is “verboten5” for Lufthansa to carry matters
            interstate, and make such interstate deliveries, but Lufthansa is F.A.A. licensed
            to fly transatlantic outbound USA to Germany and off and away from §1341.
            DELIVERY into Germany was charged, not Hudson River crossings this Court
            propagates here, when it apotheosizes a “fiat interstate livery from thin air”,
            just as if branch III jurists became party buff to a criminal case. See also 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”) (emphasis, underline added). The
            creator’s exclusions are clear too.


        5) In fact, True Bills are not constructively amendable, either by prosecutor zeal or
            by court creativity, nor outside of time-bar and not after TRIAL, actually not even
            before trial if 5 years passed. Here, the 5-year-time bar guillotined down on June
            28, 2001 for this defendant [for the “innocent citizen, nolled-co-defendant 02-
            Lee”, limits got stretched first and then buried-ex-machina].




4
    Currently on Appeal for seriatim abuse of discretion, da novo
5
    War Department, Military Dictionary German-English, TM30-255(1941) : “prohibited”

                                                  7
    6) “Truly Unbilled Gypsies”, plugged sudden from nowhere by absurd averment that
       a Delaware-based shell company without Albany NY’s registration6 for lawfully
       operations of a NY livery messenger truck, can never morph and rise into
       interstate carrier heaven by steering 4 wheels across Hudson’s River to
       criminalize innocent conduct. Carriers are not couriers. Congress knows best.



    7) It is utterly irrelevant whether a petit jury could later be finagled, second-
       guessed, left un-polled, to have somehow believed a camouflaged gypsy livery
       truck could morph into a fully vested interstate carrier, because initial
       jurisdiction is not its business. That process went before voir dire.



    8) The real truth, not the “SDNY’s trial truthiness” is very well known to this
       distinguished Court: “Agate” was a unique item, never printed and tried before or
       after, and was sworn to by Maginot to have been hand carried by Maginot on July
       18th 1996 on Lufthansa 461 to Frankfurt. Maginot’s routine pre-exterminated all
       potential charges on that 7-18-take-off. No scheme and no check with a nexus
       here to be found.



    9) Whether a “photocopy” was delivered internationally by Lufthansa is “unclear”,
       but totally logic, as Kiefer could not recall, but Maginot did.



    10) A photocopy of a “fully paid out” voucher, however, is materially worthless
       (another elementary failure), because it has (a) null “inducement qualities”, (b)
       since it was paid and (c) and cannot reach operative document status a “genuine
       original note” would have had, and (d) could not reach “furtherance of a




6
                                                       Active and closed entities, NYS

                                            8
             replenishment scheme” that – by its intrinsic qualities - must exclusively be
             grounded upon “originals” (see S2 indictment pg 2: “..[via] an international
             freight company the original invoices..7”) to carry economic worthiness and
             possess “refund caliber” for a third party’s books overseas8.



                                 But there is more, even convincingly more



    I.    Viertel Trial Tr.: 28D8VIE2, page 100 lines 15-19: Kiefer [direct]: “..[at] month’s end
          we printed all of the reports...and then we sent them to Germany to the finance
          department”. Obviously, “Kiefer’s” [read BMI’s] “finance department” was not in NY.


    II.   Movant confirmed in the records with this Court, that, what Kiefer labeled: “finance
          department” was BMI's own, richly enumerated subcontractors in Germany: “Burda
          Verlagskoordinations GmbH” and “Burda Verlagsservices GmbH”, both logistics and
          financial services providers and recipients of at least $726,249.80 fees (1995/96)
          from BMI for services and staff provided to BMI-Client billing, BMI-collections and
          BMI-cost-distribution services. BMI paid generously to these billing contractors, but
          the government rather relied upon its favorite buddy “BRADY” to deep-six (CA2:11-
          5442) and further its bogus theory, its “NINJA9” theory.


III.      Subcontractor Burda Verlagskoordination GmbH was in the business to receive the
          monthly DELIVERIES from Lufthansa's agent “M&M Aircargo” with international
          paperwork from NY (which the government avers without any basis in reality-
          seriatim- included the "original Agate invoice” fraudulently "submitted") to sort and
          allocate production costs to BMI's clients, plug-in a hefty (100+%) mark-up and bill


7
    Eureka, “branch II” finally got one right!
8
    Maybe Courts learned by now that faked mortgage Notes schemes were perpetrated upon
hundreds of thousands of Americans by lender-attorneys (all Court officers), Notes that
weren’t original nor valid, and Courts waiving along the powerful betraying the public trust.
9
    NINJA= No Income No Job & Assets

                                                  9
      still grateful BMI-Clients on behalf of BMI and for BMI’s bottom line of $688,204.32.


IV.   These PAID VOUCHERS from NY were recorded pursuant to a dual book accounting
      standard and were "BMI's own records", as US [tax] law requires, inter alia. Burda
      Verlagskoordination operated as a financial accounting facilitator and as the Client-
      billing-Contractor. All vouchers were PAID vouchers, without furtherance or recourse
      or dispute. Whether hanky-panky was involved or sanctioned locally or by others
      overseas, it doesn’t matter. Burda was a “Billion-Dollar-Bordello” in the words of a
      longtime topper. The audit was certified in 1997. That’s all what counts and that’s
      why branch II kept the financial audit QT.


V.    Furthermore, Burda Holding was not ever “mail addressee” or destination consignee:
      Branch II just made that up repeatedly mis-indentifying BMI’s parent. Harris and
      Cohen even rubbed on Dr. Hubert Burda for good fit; Holding had little business with
      BMI other than interlocutor, minor Client and recipient of media information. $350k-
      Donor, Holding was not. The exclusive consignee was Burda Verlagskoordinations
      GmbH a loss-free big-time fee earner. Mail Fraud was always UNREACHABLE, AB OVO
      or postmortem.




                                            Bad Faith




 i.   On August 14th 2002, Comey-Harris-Cohen submitted the “government’s” Rule 30
      request to charge the jury, inter alia, copied to defendant’s CJA counsel, stating a
      “purpose” definition but definitely to prepare the stage for this Court’s creativity by
      not aggrandizing an Apex gypsy livery truck, who won’t and didn’t fit the true bill
      and was not under export contract by BMI, but by M&M Aircargo of Munich:




                                             10
ii.   It is even more important to realize that branch II, Main Justice and “our” USAO had
      and still have a strong proclivity to misrepresent and misquote United States Code,
      inter alia 18 U.S.C. §1341, QED: see “Request To Charge” (supra):




                                            11
iii.   6 days earlier, August 8th, Main Justice, shoved along by two SDNY10 AUSAs, known
       justice obstructers, wired, in violation of U.S. Code and Treaty-law, a blatantly
       fraudulent MLAT Request, from Washington, D.C. to a fax-terminal in Paris, France,
       Central Authority [which disclosed files to movant] and again in total disregard of §
       1341’s language and intent, disguising the operative jurisdictional element. The
       honorable Court shall ponder, why Main Justice refused to aid and abet USAO’s in
       pulling more wool over France’s face with a “Gypsy Livery Truck scam to NJ”:




             Fax continued on next page 4 (transmitted as page 6 due to coversheets)




10
   The USAO SDNY was recently held – seriatim - to have “abused judicial process, acted in
bad faith and submitted misleading documents to misstate facts” in a Bahamas MLAT
proceeding, that rendered the SDNY USAO career offenders “with unparalleled capacity for
lying, manipulation and fabrication”.[sic](see: HRM The Queen’s Privy Council)

                                              12
iv.   AUSA Harris wrapped up the trial to pre-dislodge as he pre-empted what could be
      left for this Court’s ultra-late non sequitur opine, namely total absence of an
      unsanctioned local livery “carrier’s” river crossings. Foresee-ability was suggested
      only as to a certain international air-cargo delivery (in itself a D.O.A. hypothesis
      since outsiders could not have such suspicions), but the “delivery” of the TRUE BILL,
      intrinsically lacked interstate nexus rendering all “matter” in international air
      shipping an innocent, scheme-free, transatlantic delivery:




v.    But, there is even more discretional abuse in the Court’s instant opinion, when it
      disrespected to address the “TRAVERSE’s” important “new jurisdictional evidence
      June Chase microfilm” annex that became yet another time for a “Brady meets

                                              13
      Statutory Limits” party. Branch II withheld it from the defense, in fact admitted by
      AUSA Harris’ words [24] on July’s [1996] bank statement. Harris did not “unveil” the
      “key” June 1996 statement, the one this defendant finally retrieved and swiftly
      annexed to the “TRAVERSE” [see: Annex Chase Microfilm in May 6, 2012 filing]. This
      new “Brady violation” has again jurisdictional dimensions and is stated fact
      (“government” Agent O’Sullivan and both AUSAs had total BMI bank record access)
      and it sponges and entombs the government’s false “trigger point” allegation of
      Count 2 [averred by a forever-untenable overt act re §371] by demonstrating the
      June 1996 End-Of-Day balances, i.e., on 06/18 at $383 thousand, on 06/19 at $356
      thousand and on 06/20 at $270 thousand, non-sequitur “fat” levels claimed to have
      scared a cashier. But the Chase annex serves another purpose, and not just to newly
      litigate yet another constitutional Brady offense, but to prove really bad faith and
      allow the public a clearer view into the ethical standards its justice administration
      subscribes and what suppressions they suffer11:




11
  http://www.guardian.co.uk/commentisfree/cifamerica/2012/apr/30/laissez-faire-with-
strip-searches-liberalism/print

                                             14
 vi.   The words represents deliberate, if not malevolent obfuscation in addressing
       “controversies against 2 aliens12” by confusing a jury with ad nauseam deployed,
       anti-populus-obscure laws like “mail-fraud”, JohnDoeSixpack won’t understand and
       “American Government” HS classes must avoid. The government’s motive is rather
       evident: To Gain The Most Unfair Advantage. Obviously prohibited. See: “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). There is no rescue
       coming from the favorable “lighting kits” less-impartial members of a tax-rebated
       bench carry along at all times.

vii.   Lastly, and thanks to Blumenberg’s records, we view his April-5-2002 so-called
       “Guilty Plea13 allocation ” [unilaterally withdrawn 2010 by international
       certification] to scientifically gauge for a jurisdictional “Gypsy truck” credulity level
       that – in 2012 – riveted onto the “mailing” element to jack it up; and, lo and behold,
       the gauge reads at ZERO!

              As any reasonable jurist will deduct upon transcript review that Blumenberg
       did not get allocated, neither intelligently, willingly nor upon an independent basis
       in fact as to the sufficiency of the elements for crimes under §§ 371, 1341 and 1343

12
   [the sole native and sole citizen-def’ was miraculously nolled on 7-3-2002 from similarly
coined and structured mail frauds due to (secretly kept) lack of interstate nexus]
13
   unilaterally withdrawn 2010 by international certification

                                               15
(also, both tax counts were bogus, certifies Blumenberg, since both 1040’s were
truthful declarations under oath). It likely was due to the mock lighting kit that
blinds benches like headlights the deer. Even Phil Weinstein’s middle-finger on the
cheat-sheet (see below, colloquy) cannot help inculpate the defendant, Phil’s hand-
scribbled words were generically value-free for allocation purposes, venue was left
unclear or disputed, and while Blumenberg speaks “mail-order shopping”, the Court
fathoms “interstate”. It sounds like wishful to ‘n fro but in the end the Court water-
boarded a tongueless. Total disconnect ensued. But, that great federal qualifier
“interstate” is – again - missing altogether and all of the King’s horses can’t put it in
place to mutate this colloquy into a valid plea. See: even Pimentel’s mailing is faulty
(Tr.Pg. 7) as confessed by AUSO’s Weddle:




Even better, pg 18, the Court pronounced:




                                        16
Or here, on page 24, the Court spoke again:




Blumenberg did not grasp much, but Gypsy Livery Trucks “enroute” to Newark were
left unchronicled [doth it matter in the wild-due-process-West? It doth, actually]
and when Blumenberg rattled off Weinstein’s scribble, shock strikes:




                                      17
Line 25 above reads:” The mails and wires…” obviously another case, because in this
case vs. Blumenberg, Lufthansa was used for Delivery by international airfreight
carrier. But, then again, the Court is often on the wrong page, and the wrong
proceeding:




AUSA Weddle recognizes the colloquy’s total disconnect:




                                      18
        Even better, no conspiracy:




        And, suddenly, 1-2-3 [§ 371, § 1343, § 1341] could not catch the prey, and its over:




viii.   Mr. Bernhard Rehm [see signature FN1], Grand Jury ex-foreman, adamantly recorded
        his specific recollections that “two government lawyers presented and pushed for
        the exact words and elements that were doubtlessly accepted by us as we
        subscribed to those in our true bill: “Delivery by international freight company ….to
        Germany”.




                                               19
                                       LAW AND CONCLUSION


        “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.at 453.
And : 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. C o. v. Swan, 111 U.S. 379, 382 (1884).
        See also CRM 950: The gist of the offenses is not the scheme to
defraud,        but     the     use     of     the        mails    or    interstate        wire
communication. See United States v. Garland, 337 F. Supp. 1, 3 (N.D. Ill.
1971); see also United States v. Gardner, 65 F.3d 82, 85 (8th Cir. 1995) ("The
use of the post office establishment in the execution of the alleged scheme
to obtain money by false pretenses is the gist of the offense which the
statute denounces, and not the scheme to defraud.") (quoting C ochran v.
United States, 41 F.2d 193, 197 (8th Cir. 1930)), cert. denied, 116 S.Ct. 748
and 116 S.Ct.1044 (1996); United States v. Lebovitz, 669 F.2d 894, 898 (3d
Cir.) ("The gist of the offense of mail fraud is the use of mails by someone to
carry     out    some     essential    element       of    the    fraudulent    scheme         or
artifice."), cert. denied, 456 U.S. 929 (1982).


        "The federal mail fraud statute does not purport to reach all frauds, but only those
limited instances in which the use of the mails is a part of the execution of the fraud,
leaving all other cases to be dealt with by appropriate state law." United States v.
Schmuck, 489 U.S. 705, 710 (1989) (quoting Kann v. United States, 323 U.S. 88, 95
(1944)); accord United States v. Coachman, 727 F.2d 1293, 1302 n. 43 (D.C. Cir. 1984) ("The
offense of mail fraud demands proof of a scheme to defraud which, at some point, is
intentionally furthered by use of the mails.").United States v. Alston, 609 F.2d 531, 538



                                               20
(D.C. Cir. 1979) ("For conviction under the mail fraud statute, the mails must be used 'for
the purpose of executing' the fraudulent scheme, and not merely 'as a result of' such
scheme.") (quoting Kann, 323 U.S. 88), cert. denied, 445 U.S. 918 (1980).



         Therefore, this Court shall declare itself in lack of – AB OVO - subject
matter jurisdiction under art.III, §2, 18 U.S.C. § 3231 et al. over the charged
conduct and over non-domestic events which plainly did not arise from
violation(s) of 18:§1341, 371, 1343. Hypothetical jurisdiction is no
jurisdiction at all 14.


         Therefore, applicant moves for reconsideration based upon 1) the foregoing, 2) the
original motion and annex, 3) other facts on record, 3) plain language of statute §1341, 4)
the resulting absence of jurisdiction ab ovo, and 5) for failure to state a claim and proceed
to adjudicate on the law: By a writ of VACATUR and MISSIO of the Judgment of Conviction
and underlying indictments.
         Respectfully submitted this great May 15, 2012




                                                         Christian T Viertel, pro se


         Service by e-mail to U.S. Attorney Preetinder Bharara

         CC: Robert Culp,Esq., on CA2 11-5442, and

         Office of the Hon. Surgeon General, Vice Admiral Dr. Regina M. Benjamin




14
     Such adjudications are “ultra vires” [Scalia, J.] in Steel Co. vs Citizens, 523 U.S.83(1998)


                                                  21