Documents
Resources
Learning Center
Upload
Plans & pricing Sign in
Sign Out

Lack of Jurisdiction

VIEWS: 36 PAGES: 16

									      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
      Case: 12-231   Document: 25   Page: 2   06/19/2012   642204   16




                            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
           Case: 12-231     Document: 25     Page: 3     06/19/2012     642204        16




                                   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
        Case: 12-231     Document: 25     Page: 4     06/19/2012     642204     16




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
        Case: 12-231    Document: 25    Page: 5    06/19/2012     642204    16




      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
        Case: 12-231    Document: 25     Page: 6    06/19/2012    642204     16




                                   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
      Case: 12-231   Document: 25   Page: 7   06/19/2012   642204   16




                                    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
      Case: 12-231   Document: 25   Page: 8   06/19/2012   642204   16




                                    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
           Case: 12-231     Document: 25     Page: 9     06/19/2012     642204      16




                                             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
    Case: 12-231    Document: 25     Page: 10    06/19/2012     642204     16




  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
        Case: 12-231   Document: 25   Page: 11   06/19/2012   642204   16




      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
          Case: 12-231    Document: 25     Page: 12     06/19/2012     642204      16




        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
          Case: 12-231     Document: 25      Page: 13     06/19/2012     642204     16




     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
     Case: 12-231   Document: 25     Page: 14   06/19/2012   642204   16




                                   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
        Case: 12-231   Document: 25     Page: 15     06/19/2012      642204     16




  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
          Case: 12-231     Document: 25     Page: 16     06/19/2012     642204     16




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

								
To top