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Case: 12-231 Document: 25 Page: 1 06/19/2012 642204 16
12-231 op
United States Court of Appeals
for the
Second Circuit
* * * * * * * *
UNITED STATES OF AMERICA,
Appellee
- v. –
Christian Viertel,
Defendant-Appellant,
pro se
* * * * * * *
Mandamus type – “transfer” - from the United States District Court of
the Southern District of New York [Case Nr. 01-cr-571/08-civ-7512]
=========================================
Affidavit in Support of VACATUR for
jurisdictional void ab ovo or for a
dispositive remand to an alternate
impartial court below
1
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TABLE OF CONTENTS
TABLE OF CONTENTS 2
PRELIMINARY STATEMENT 3
PROCEDURE FOR CORAM NOBIS 4
JUSTICE MANAGEMENT 6
ARGUMENT 1 7
ARGUMENT 2 8
ARGUMENT 3 9
FICTIO STATEMENT 13
MORE RELEVANT LAW 14
CONCLUSION 15
CERTIFICATION 28 U.S.C. § 1746 (1) 16
2
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Preliminary Statement
This is an Affidavit certified pursuant to 28 U.S.C. § 1746(1)
by pro-se-Petitioner-Appellant-Defendant-involuntary-Transferee filed
under penalty of perjury without the territory of the United States
of America.
This action initiated sua sponte in the SDNY from a re-
characterization-transfer by the Presider of 01:5711 in dystopian-
like reach for a mandamus whether vel non to adjudicate a WRIT OF (a
structural) ERROR MOTION SEEKING VACATUR AB OV, grounded upon a
fundamental – and timely2 - challenge to the District Court’s subject
matter jurisdiction caused by explicit interstate strictures of the
mail fraud statute [consequentially obliterating – ipso frivolous -
§§ 371, 1343 charges]. Basically, this honorable panel is petitioned
to review for judicial abuse of discretion – for ultra vires acts -
confederated with seriatim appearance of partisanship; a separate
Brady challenge is at core of proceeding U.S.C.A.11-5442-cr(L). Co-
1
SDNY 08-civ-7512 was a parallel, involutional “2255” action insignificant for its
procedural flaws and plain absence of US vs. Kaminsky’s “in custody” requirement;
see: Gov’t Affidavit Doc. 12 in #12-231 filed 4-26-2012 and base case D.E. 144:
2
No time limits apply for a presentment of a structural jurisdictional challenge
3
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defendant Blumenberg is also in pendency under U.S.C.A.11-2300 due to
for two District Court denials, DE: 247,250. This defendant filed a
28 USC §1651 Motion for VACATUR (DE 281/282)4-9-2012, which the DC
denied and which was timely NOTICED for APPEAL (DE 286).
Procedure
Pro se defendants have no certainty how their submissions are
labeled since Courts are to “look behind” the label and to recognize
a colorable claim regardless of procedural obstacles, Haines vs.
Kerner, 404 US 519. In the event, that this panel reviews under the
U.S. v. Morgan “coram nobis test”, the defendant submits, that he
surmounts all three test prongs:
1) the “why not earlier” explanation is a combination of non-
resident alien’s unfamiliarity with unclear federal domestic
laws complicated by more than 1000 precedents seasoned jurists
still charge $5000+ to advise a worried-postal-client. The lack
of a clear and comprehensive penal code book available for
consultation at a U.S. embassy or consulate being a book that
stands on its own without further commentary ado3. The well
known problem that aliens generally receive inferior, if not
sub-Strickland legal advice from practitioners whose livelihood
depends upon their ability to procure CJA panel assignments and
3
Def’s 28 U.S.C. 1651 ALL WRITS submission to the District Court – DE 281/282/284 –
illustrated that § 1341 is repeatedly mutilated by branch II at will, truncated by Main
Justice to deceptively appear actionable (1341 is neither extraterritorial nor valid under
MLAT’s “common prohibition” prong), or is deliberately misquoted to confuse the public.
4
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not anger the mighty, but comply. And the often expressed
unwillingness by FD/CJA’s to raise fundamental federal power
issues for a deportable alien. And last, even academia tip-toes
around in fear of reprisal; Judge Andrew Young does not, but he
is still unavailable for hire.
2) The consequences of the challenged convictions are open-ending,
demonstrated by an unjustifiable exclusion from visits to the
United States ($8’120 “bogus” charge is well below the $10K
administrative removal trigger), the mounting opprobrium not
only from unresolved fraudulent data entries by persons under
direct control of plaintiff aggravating tort4.
3) The fundamentality of the error cannot be greater. Adjudication
without jurisdiction is void.
Additionally, the credibility of a claim of actual innocence rests
upon the quality of three bogus charges, which demonstrate an extreme
void of verifiable criminal acts this defendant could have
“preferably” been accused of. That’s all they could fabricate, it
made no sense, but after circumnavigating the Magistrate Judge hurdle
(no “-mj-“docket can be located) branch II picked a “procedurist” to
help them out to convict. They did drop identical bogus charges
against the only U.S. citizen defendant (Lee), but they embezzled two
aliens. Stalin’s Lavrentiy Pavlov Beria is AUSA Weddle’s idol.
4
ICE HQ lied to Germany’s public tv envoy who pressed for my release, that I was
actually a “predator” ICE (S/A Butterfield) held to harass.
5
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Justice Management
Thus, this action concerns inglorious detail of retail “justice”
management, extra-legal Brady scoff5, pretense of bogus macro-
economics “[when] district judges’ factitiousness hinder proper
administration of justice”[Green,J. DCDJ]. The District’s “Trier’s”
appointment was by sponsorship from H.E. Daniel Patrick Moynihan, who
popularized Baruch’s ‘50ties imperative: “Everyone is entitled to his
own opinion, but is not entitled to his own facts [sic]”, a U.N.
ambassador and N.Y. senator lending his good name to the Manhattan
U.S. Court House where the “Trier” chambers and what Moynihan later
[jokingly] branded as: “Hamster’s wheels on Pearl”.
5
Sen. Murkowski 6/6/2012 at SJC pressing for legislation on Brady “rules” requiring
prosecutors to disclose any exculpatory evidence or be punished.
6
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Argument 1
The decision in the instant matter was temporarily DEFERRED by
ORDER of the distinguished panel on April 2, 2012 pending the
resolution of defendant’s Appeal 11-5442(L). Defendant respectfully
submits that the issues raised here caused by the Liriano-transfer
from the District Court are independent and unique from the [Brady]
issues raised in 11-5442. More importantly, it is well established
that courts “have an independent obligation to consider the presence
or absence of subject matter jurisdiction sua sponte.” Joseph vs.
Leavitt, 465 F.3d 87,89 (2d. Circuit 2006); see Fed.R.C.P 12(h)(3).
Also: “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.” [Emphasis,
underline added]. This rule was adopted in Capron v. Van Noorden, 2
Cranch, 126, decided in 1804; see also Great Southern Fire Proof
Hotel Co. v. Jones, 177 U.S. 453.
Therefore defendant respectfully submits to reconsider and forgo
its temporary deferral in the interest of speedy justice and based
upon judicial economy.
7
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Argument 2
The District Court failed to exercise minimal diligence on many
aspects of 01-cr-571 while agreeing -extra-Magistratial-tombola– to
harbor this case upon revealingly open conflicts, vertical and
horizontal loyalties and quid-pro-quo traps it was bound to steer
into; see U.S. v. Gottlieb, 738 F.Supp. 1174, 1181 (N.D.Ill, 1990) A
court must look past the indictment’s legal characterization of a
scheme and determine whether the “specific conduct alleged in the
indictment is clearly proscribed by the mail fraud statute.” Any
defendant’s clairvoyance about international mails is crimefree, as
crimefree as mailfraud’s “schemes” are without the substantive and
successful and domestic and interstate mail delivery in pursuit.
8
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Argument 3
relies on defendant’s claim below, now at bar, that Count 3
(§1341) had - prima facie6 - a fatal “birther” flaw that turned
incurable due to the statute’s time-bar falling on 6/28/2001, one day
prior to this defendant’s initial SDNY arraignment. Subsequent [S1;
S2] gov’ment patches were locked out for interstate revisionism, but
that’s how, why and when judicial craftiness transmogrified into
denial of blatant jurisdictional nirvanae porting covert partisanship
into rigueur.
a) International freight delivery to Germany is not moiety of
federally sanctionable interstate facilities Congress enacted to
protect7. “S2” indictment officially notified this defendant and
specifically charged the substantive dated “Delivery by
international freight company” limited to a single item : [Agate
Invoice for] $8,1208, and, moreover, the parenthesized title (18)
6
“interstate” is exactly not “international or foreign”, but mutually exclusive to another
7
The “Trier” of facts (Koeltl,J.) last month – 11 years post-facto – tried a new fact on its
own, inflating its “unindicted, alternative transportation” buoy from thin air: a sudden
unlicensed gypsy livery truck’s Hudson crossing was called to judicial duty for a novel
ruse under a theory not argued pre or at trial, and, surprisingly, not even concocted by
USAO’s “constructive transgression team”[sic]. Even assuming – arguendo - a gypsy
livery could [lawfully] pick up a package for a final crossing over the Hudson, that
movement falls under Beech-Nut’s [871 F.2d 1190ff] “prior and preparatory” exemption,
because NY gypsy trucks can’t fly and can’t “deliver” into Germany.
8
The “Mail” count – a must-see visual intra- was fatally corrupted to Kafkaesque heights
dependent on branch III’s conscious avoidance to annul branch II’s card-house:
a) unidentified “international freight company” was, in fact, LUFTHANSA GERMAN
AIRLINES – FAA licensed INTERNATIONAL AIRCARRIERS are prohibited from
providing UNITED STATES DOMESTIC & INTERSTATE CABOTAGE CARRIAGE [an
international cargo “Luftfrachtführer” is] entirely immune to §1341 engulfment;
9
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or sections (1341,1346,2) do not match the charge above but
represent a type of harmful transgression “Aleynikov” error, this
Court well recognized in U.S.C.A. 11-1126:
b) It is an established fact, that gypsy livery trucks, “batmobiles”
and local messengers cannot pass the interstate carrier test (see:
Prof. Henning/US Atty.Manual;(01-Cr-571-03) MEMORANDUM OPINION AND ORDER #
101779), in particular those wheels whose failure to in-State
register, failure to in-State license, and failure to pay for the
mandatory UCR program (Congress’ Unified Carrier Register:
www.ucr.in.gov ) are excluded. The Court’s “gypsy” stilt was also
b) Departure Airport: was outside the SDNY but inside NEWARK NJ. @ Liberty
Airport (no pun intended); [venue errors raise questions of law]
c) Departure Date 6/28/1996 was also botched: LH Flight 403 operating June 29,
1996 possibly carried a copy of the “substantive fake Agate voucher” via Frankfurt
to Munich on LH Flight 142/30 June 1996 [the trial established that this single
voucher was, if anything, a proforma voucher without documentary value];
d) Arrival Airport Destination was botched and not statutorily “as marked”, as the
factual arrival was not “Offenburg”, but MUNICH AIRPORT = EDDM.
e) Addressee was M&M Air-Cargo in Munich and not “Burda Holding, Offenburg”,
eviscerating branch II & III of a genuine domestic “locus delicti”.
f) “original invoice” charged as a $8,120 (Agate) – was not inside the export
shipment at all, because this one & only “Agate” fake [printed by Burda Media’s
scriveners] was retained locally with other ORIGINALS at Burda Media Manhattan,
where such documents rightfully belong under taxation rules, and specifically
during the expectancy period for senior audit examiners to arrive by July 9, 1996.
10
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too short of a local, domestic client-payee-shipper [gypsy’s
client was M&M in Munich], under §1341’s exclusory “foreign
commerce” disabler [contrasted to §1343’s “foreign commerce”
expander). Congress concluded it neither has authority nor has
inclination to shelter “international, foreign or overseas”
consignees from stateside hanky-panky; neither have U.S. Postal
Inspectors mail-fraud jurisdiction over internationally destined
airmail/global/mail passing9 through any sorting hub, i.e. at JFK.
c) “Pecuniary Loss” to U.S. “citizenry” was at zero, offense-free
“sufferance” to a certain sovereign is syllogistic, and nil
“losses” recorded at German owned Burda Media Inc., a [domestic
NY for profit] business corporation with a thick sideline for
intramural accounting fourberie, massive [“proforma”] voucher
self-print but big revenue from real media clients, branch II
conspired to obscure from the trial of this Burda outsider,
turning the proceedings into official mockery by plaintiff.
d) This genuine profit-centre was deceptively colored by prosecutors
whose zeal to masquerade up a righteous [FBI] “victim” in absence
of an officer-director’s “verifiable loss claim”. The basic facts
were wholesomely contrary to a set of certified exculpatory
9
11
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financials prosecutors10 swiftly “Brady-buried” 3 weeks before
trial, and when caught inflagranti in false denials – evasive
also before this Court’s distinguished panel in 05-5012, to muddy
that last shallow justice puddle compliant bench-work can
apportion.11
e) Newark Airport did not make it into the “true bill” instead
Offenburg, Germany did [truthfully at least]. Thus, Newark
Airport’s function cannot “complete” the “charged delivery to
Germany”, see 420 F.3d 134; and a [copy of a] fake invoice fully
paid-out by the payor-fakers turned into a dead leaf after
fruition, in fact, irreversible fruition plainly allocated
[characterized] as a local overhead cost item booked at Burda
Media NY, when an international air-cargo-trip occurred, vel non.
f) Also, mail fraud’s transport trigger failed, if not, arguendo,
factually at ipso, because no dead or living could reasonably be
suspected to have had clairvoyance into, or to willfully and
“knowingly” cause such “whacko” [gypsy] events from far [France
is 3’500 miles East], bordering on pathological power-trip
paranoia by the President’s agents. Mens rea becomes a non
sequitur. Motives for violating a distant countries mail/wire/371
laws are absurd, as lack of gain in any “wrongly prepondered”
transaction was obvious and defendant’s restitution was very
belatedly lifted by “hand endorsement” on 12/23/2012 sans payment
of a single “comp dollar” by this innocent defendant.
10
Mark Harris, Justin Weddle, Marcia Cohen plus their supervisors and USA’s
11
The most recent federal sentencing guideline conference noted a) that prosecutors are
trained to increase the loss figure, and b) to look at lack of gain as a mitigating factor
warranting logical downward movements.
12
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g) More to wit: The “placing in” section failed as well, as there is
no “placing“ charge12, venue remains cloudy and very debatable,
because New York’s Southern District was not [and cannot be]
departure airport for any international airfreight carrier wide-
body (JFK is located in EDNY, Newark in EDNJ), and “passing
through Newark” remains unavailable due to the simple fact that
mail fraud is unitary and not a continuing offense, and Offenburg
is not “within a judicial district” of the United States, and
Lufthansa is not an interstate carrier.
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)13. When a conflicted decider was torn between what was right and
what was done, any number of missteps is bound to bedevil a
introspection-free bench’s reputational liability weighing down and
out its manicured perception. Bias and ideology in this public line
of work can ruin lives, on all sides.
12
However, branch II or III are unable to point to any trial record to support the bald
assertion that Viertel had knowledge that the [proforma] document would be forwarded
to Offenburg, Germany. The government has thus failed to meet its burden, again.
13
Manufactured federal jurisdiction is even more offensive in criminal than in civil
proceedings, cf. 28 U.S.C. Sec. 1359. As late Hon. Judge Freedman said with respect to
civil actions in McSparran v. Weist, 402 F.2d 867, 873 (3 Cir. 1968) (en banc), cert.
denied, 395 U.S. 903, 89 S.Ct. 1739, 23 L.Ed.2d 217 (1969), manufactured jurisdiction
"is a reflection on the federal judicial system and brings it into disrepute."
13
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More relevant Law
Playwright Molière’s: 'It infuriates me to be wrong, when I know
I'm right' has relevance here, but equally – more legally - relevant
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).
i. In MANSFIELD, C. & L. M. RY. CO. et al v. SWAN et al,
111 U.S. 379 (4 S.Ct. 510, 28 L. Ed. 462)(1884) states “but
the rule, springing from the nature and limits of the
judicial power of the United States, is inflexible and
without exception which requires this court, of its own
motion, to deny its own jurisdiction, and, in the exercise of
its appellate power, that of all other courts of the United
States, in all cases where such jurisdiction does not
affirmatively appear in the record on which, in the exercise
of that power, it is called to act. 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.” [emphasis added]. This rule was adopted in Capron v.
Van Noorden, 2 Cranch, 126, decided in 1804; see also Great
Southern Fire Proof Hotel Co. v. Jones, 177 U.S. 453.
14
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ii. See also: United States v. Ford, Dkt No. 03-1774 (2d Cir.
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].
And: “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].
iii. The Supreme Court issued its conclusions when Justice
Scalia’s taught the Second Circuit again 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).
Fiat ut petitur
Therefore, defendant-appellant-deferree prays, that this
honorable Panel lift the deferral to grants a Writ for VACATUR AB OVO
based upon the records with all its procedural consequences, or,
alternatively, remands the jurisdictional challenge to an alternate
Presider below for an conflicted-free adjudication and decrees all
such further relief this Court deems appropriate and in the interest
of justice.
Defendant respectfully submits that previous decisions were
wrongly decided in as much as some deciders were summarily
disinterested in alien gravamen, genuinely unaware of facts branch II
15
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withheld14 or unaware of the extent president’s agents trespass to
pervert corporate reality to make conduct appear criminal. At least
since 1986, branch II began to “run [our] federal criminal justice
15
system” [sic]. Experiments failed when only wardens cheer.
I certify and verify under penalty of perjury under the laws of
the United States of America that the foregoing is true and correct
[28 USC §1746(1)], as well as reasonable within an effort to
terminate most unjust opprobrium a jurist of reason can detect.
Executed and Respectfully Submitted on June 10, 2012
Defendant-deferree-appellant-pro-se
Christian T Viertel,
9/18 v. delle Ballodole,
Firenze, ITALIA I- 50139 –
viertel2005@aol.com
N/A Tel +1 360 227 6326
Certification: 3249 Words
I also certify hereby that copies of this submission were emailed to
Preetinder Bharara,USAO SDNY , CJA-Counsel Robert Culp,
U.S.C.A.Pro Se Clerk: Please file on DOCKET 12-231 OP
14
just like the less than microscopic nexus this defendant had at all times to a NY
company that counterfeit hundreds of sheets of his stationary for intramural trickery
15
Hon. Andrew Young, J,D.MA http://www.nytimes.com/2012/06/02/opinion/a-jury-
draws-a-line-on-sentencing.html
16
