1 Michael Pohlable with Stand-by counsel This space reserved for filing stamp.
3836 Lomitas Dr.
2 Los Angeles, California 90032
5 The unalienable rights of the people can not succumb to the limited and privileged
powers of a Constitutionally established government.
6 This document is published at http://mike.revolutioni.st/9007SR2.pdf , http://mike.revolutioni.st/9007SR2.htm
8 In the United States District Court for the Central District of California
Southern Division: 411 West Fourth Street, Room 1053, Santa Ana, California, 92701-4516
9 Judge David O. Carter – Room 9D
Hours: 10-4 - M-F
United States Case Number: sacr 07 0033
Michael Pohlable, Surrebuttal to Prosecution’s Untimely Opposition to
12 et. al. defendant’s
1st Substantive Motion; Document #9007 Version 1.003.
This Document is Labeled #9007SR2
14 Table of Contents
Statement of Facts
Memorandum of Points and Authorities.
18 Proof of Service.
19 Proposed Venue for hearing:
Date: Monday 21 April 2008.
20 Time: 1:30 pm
Place: Courtroom 9d.
Notice of Surrebuttal. Petition for Relief of Unconstitutional Claims.
To the court: At the venue designated in the caption or at such other venue as the court shall designate
23 due to issues of timeliness, I will appear and demand the relief set forth herein and such other relief as may be
24 appropriate. Rule 12: “A party may raise by pretrial motion any defense, objection, or request that the court can
determine without a trial of the general issue.” This motion can be dispositive. As this document is wordy
enough, any appearance of admissions of guilt are to be construed as hypothetical in nature for the sake of
26 clarifying my points - all admissions or inferences are to be read amended with, “As alleged” - or otherwise per
Signed ______________________ Michael Pohlable. Monday, April 08th, 2008
Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 Contents of this Surrebuttal:
2 Notice of Surrebuttal. Petition for Relief of Unconstitutional Claims.. . . . . . . . . . . . . . . . . . . . . . . . 1
3 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4 Brief overview. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Summary of Surrebuttal.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Points. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
6 (1) Prohibition of The Exercise of Property Rights is Unconstitutional. .. . . . . . . . . 10
7 (2) Congress May not Delegate Authorities it does not have.. . . . . . . . . . . . . . . . . . 11
(3) Statute is Void for Vagueness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(4) Amendments Supersede Grants of Authority.. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
9 (5) Possession and Distribution are Inherent Property Rights.. . . . . . . . . . . . . . . . . 12
10 (6) Controlled Substances Act is Void Ab Initio... . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(7) Protecting Society is not Justification for Criminal Acts.. . . . . . . . . . . . . . . . . . . 14
(8) No Corpus Delicti, No Standing, No Plaintiff, No crime.. . . . . . . . . . . . . . . . . . 15
12 (9) Woes of Society. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
13 (10) No Plaintiff, No Jurisdiction.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SUMMARY OF CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
16 Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
MDMA Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
18 ARGUMENTS/MEMORANDUM OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
19 Origin of Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Powers Of Congress/Government.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Argument of Disputes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
22 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
24 Federal Statutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
25 Federal Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Fundamental Things/Other Sources. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
U.S. Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
28 Proof of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
2 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
3 Unconstitutionality is illegality of the highest order. --Board of Zoning Appeals V. Decatur Company of
Jehovah's Witnesses, 233 Ind. 83, 117 NE 2nd. 115
6 This is the entirety of the matter at hand; the prosecution claims my rights of property and
contract have been revoked through an Unconstitutional statute that does not regard my rights as
unalienable. Because I chose, despite violent criminal, terrorist threats to my life and liberty by a
8 government that rules only through my privileged consent, to exercise my rights of property and
9 contract with another consenting adult, the prosecution claims that I must be deprived of other rights
to include my: liberty, property, and right to vote or hold office to challenge the criminal protection
racket to which I have fallen victim.
The prosecution makes many claims placing the limited powers of congress above my
12 unalienable, fundamental, natural, self-evident, God-given rights of property and contract, but fails to
13 provide a source of authority greater than God or Nature by which my rights were granted, and as
such, its arguments are invalid, and the charges must be dismissed.
If the legislature may suspend my rights at any time, I have no rights; I have government
15 granted privileges. This is the opposite of what the constitution established, as such is
16 Unconstitutional, and is criminality of the highest order. Any such enactment is void ab initio, and
17 the charges against me based on this principal must be immediately dismissed.
As the founding documents make abundantly clear, the individual citizen has fundamental
unalienable rights from which all limited and privileged powers of the government are consensually
19 derived. The prosecution claims the government, though the U.S. and State Constitutions, has
20 granted me my rights and may revoke them if it deems this suspension prudent to some greater
cause. The prosecution is incorrect in this presumption, and as this is the most fundamental aspect of
their argument, their entire opposition motion is invalid.
While I will discuss in greater depth the inadequacies of the prosecution’s arguments, this is
23 the basic underlying truth; all individuals are created with equal rights, and when one individual, or a
24 group of individuals, attempts to deprive another of their unalienable rights through force, threat of
force, even under false color of legitimate authority, a crime has been committed.
I may be the one who’s liberties are at stake, but I am not the criminal in these proceedings; I
26 am the victim of criminal oppressors who demand I pay them to protect my rights of life, liberty,
27 property, and others, yet continually threaten me should I choose to exercise any of these supposed
28 rights without their express consent and prior licensing of such a “right” to me.
3 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 If the prosecution’s accusations hold, our government has become nothing more than a
2 Racketeer Influenced and Corrupt Organization.
It is plainly clear that the government’s actions are criminal under Title 18 Part 1 Chapter 95
§ 1951,and include acts of fraud, acts of terrorism, kidnaping, theft, extortion, and others.
By bringing baseless charges against me without standing, for exercising my rights despite the
5 government’s threats of violence and enslavement, the prosecution is in further violation of Title 18
6 Chapter 13 § 241, and is attempting to join this court in its criminal conspiracy in violation of § 242.
The prosecution’s claim that the government’s criminal actions are legitimate and
Constitutional is nothing more than an act of self preservation of the criminal RICO Act the
8 prosecution benefits and is paid from. Laws of prohibition do not grant powers to federal agents or
9 agencies to violate other laws, and there is no immunity from these other statues granted by the
10 Unconstitutional implementation of the CSA, or it’s unlawful enforcement.
The CSA is a criminal attack upon the citizenry that is furthered by RICO means to ensure
their power remains unchallenged, as the victims of this fraud, theft, and violence, are silenced
12 politically by depriving them of their right to vote and hold public office.
13 These actions of the prosecution and the government are distinct crimes resulting in palpable
14 injuries and losses, to either myself, my co-defendants, or the entire populace.
15 The prosecution claims these truly criminal actions are justified because I chose to disobey an
unlawful order from an agency legally recognized as my servant by exercising rights this agency,
16 without Constitutional authority, believes itself to have suspended without due process. No other
17 claim against me has been made.
18 The prosecution, by its own admission, believes its actions to have been righteous and just,
and does not deny its clearly criminal acts, but defends them with long winded explanations and
I ask the court to look through the illusions of words the prosecution presents and see the
21 base acts for what they are, as only by uncovering the acts beneath the labels can justice be found and
4 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 On Feb. 20th I filed a motion to dismiss 6 counts of an indictment which claims only that I
2 exercised my rights of property and contract, to the detriment of no one, without first attaining a
license from the government.
The prosecution responded on March 10th , 11 days late, resulting in the continuance of the
hearing set for March 17th to April 21st, and an extension of time for the filing of this surrebuttal due
5 on April 8th.
6 In its opposition, the prosecution argues trivialities and ignores the greater concepts
7 presented, as well as making absurd assertions that the Constitutional limitations on the government
may be waived at the government’s leisure in complete absence of due process; the government may
invalidate any amendment the government deems an obstacle in their pursuit of absolute power with
9 complete disregard to the rights of the people. The prosecution also heavily relies upon personal
10 attacks and its claim that I am not an attorney to discredit me.
I find this to be a diversionary tactic and hope that the court will not be swayed by their open
contempt of an American citizen desperate to see his Constitutional Republic restored.
13 There is no crime alleged by the prosecution. The prosecution does not claim otherwise in its
14 opposition. They merely claim that the exercise of my rights may be denied me without due process
because the provisions of the Constitution enable Congress to do whatever it pleases regardless of the
amendments if it is for the furtherance of some greater cause labeled as a “legitimate governmental
16 interest.” Yet the prosecution’s explanation of this supposedly legitimate interest is based on
17 invalidated scientific data from over 20 years ago.
18 The prosecution has yet to state a claim for which relief may be granted, has yet to establish
standing, has yet to accuse me of a criminal act, and is in violation of federal law in its attempt to
deprive me of my rights for choosing to exercise these rights in the first place.
20 The prosecution accuses me of possessing items which I owned. The prosecution does not
21 challenge my ownership of these items, nor does it claim that my ownership of the items in question
was illegal, nor that these items were criminally obtained.
The prosecution accuses me of no crime, only of disobedience to an authority that it believes
to hold all power over myself and my personal property. The prosecution condemns me for choosing
24 to possess and distribute property which I owned, through consensual. The prosecution’s claims
25 seem to me to claim we have communist state holdings of all property, by which the people are
privileged to use any property the people appear to own themself. Communism is clearly
Unconstitutional as it is in violation of the 5th amendment, and undermines the very rights of the
27 people that the government is tasked with protecting.
5 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
The prosecution claims that I did not receive a license permitting me to possess private
2 property which I owned, alleging the state has some higher claim to my personal property than I do
3 myself. I find this claim to be fraudulent and criminal in nature; an attempt to deprive me, and the
citizenry, of their property through robbery and extortion as defined in § 1951
“(1) The term “robbery” means the unlawful taking or
obtaining of personal property from the person or in the presence of
6 another, against his will, by means of actual or threatened force, or
7 violence, or fear of injury, immediate or future, to his person or
property, or property in his custody or possession, or the person or
property of a relative or member of his family or of anyone in his
9 company at the time of the taking or obtaining.
10 (2) The term “extortion” means the obtaining of property from
another, with his consent, induced by wrongful use of actual or
threatened force, violence, or fear, or under color of official right”
The prosecution also claims that it, or Congress, may make it unlawful for me to possess my
13 private property, and also unlawful for me to dispose of it, by prohibiting my relinquishment of
14 ownership through consensual contracts with another adult. The prosecution claims that any such
property, regardless of ownership, is forfeit, along with the rights and privileges secured to those
desiring to possess such property, should they actually come to possess it. The prosecution claims that
16 robbery and extortion are legitimate functions of the government if they serve a further interest of the
18 Contract rights are a fundamental aspect of property rights, as the rights of property would be
meaningless if one could not utilize his property for his own benefit. I see no difference between
possession and distribution to another private entity.
20 Nothing the prosecution claims I have done is criminal, or even allegedly criminal. The
21 prosecution claims only that my claim and exercise of my basic fundamental property rights was
unlawful. This claim does not provide standing, and the allegations against me are not allegations
that I have committed a crime. There is nothing to defend against, as no crime exists in the
23 indictment, resulting in my confusion and grasp to dismiss the allegations for being vague.
24 The prosecution’s claim that their allegations must be considered criminal despite there being
25 no party with standing showing or claiming personal injury or loss is nothing more than an attempt to
defraud the court into taking action in this matter. Without a corpus delicti, no party with standing
exists, or, in this case, is even alleged. As such, the prosecution has failed to invoke jurisdiction of this
27 court, and continues to attempt to use fraud to endorse its criminal attacks upon me.
6 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 The exercise of my unalienable rights cannot be a crime despite any attempt of the legislature
2 to make them licenced privileges. No criminal allegation is laid against me. No plaintiff with
standing has been presented, and the prosecution makes no claim to the contrary.
As such, I request immediate dismissal with prejudice of these meritless allegations.
7 Summary of Surrebuttal
8 An honestly represented consensual act cannot be criminal in nature, as there is no party
suffering injury or loss with which to raise standing in order to bring charges. To claim standing
without a loss or harm being suffered by the person raising the claim is a fraudulent claim which fails
10 to raise jurisdiction of any court. The prosecution claims it does not need a party with standing to raise
11 jurisdiction of the court, and I question this claim.
12 The accusations of the prosecution claim that I was in possession of my own private property.
They also claim that my possession coupled with intentions to distribute my private property were
criminal. No claim is made that I did not own the property in question. No claim is made that I
14 infringed upon another’s rights, nor placed another party under duress to ensure my transaction was
15 made. No criminal allegations exist in the indictment, nor have been raised since.
The prosecution is attempting to deprive me of my property, and rights associated with my
ownership thereof, by using emotionally driving terminology, threats against my person, and claiming
17 that I have no right to possess that which I own. By choosing to ignore the violent threats of the state
18 and its agents and exercising my fundamental property rights, and aiding others in the free exercise of
the same rights, the prosecution claims that I have “severely affected interstate commerce” and must be
Their vague notion of “affecting interstate commerce” is hypothetical, conjectural, and vague,
21 and cannot establish standing for them to bring charges against me. I have done nothing to affect
22 interstate commerce in violation of Title 18 Part 1 Chapter 95 § 1951, but the very statues raised
against me are directly in violation of that section.
The prosecution speaks as if I had severely wronged the government; those threatening my life,
liberty, and property, as well as society by merely possessing and consensually contracting with my
25 private property. The prosecution can provide no victims, nor parties with standing raising complaint
26 against my actions. The prosecution relies solely upon the mandates of Congress which it believes to
be superior to the 5th Amendment, to provide the basis for its standing, calling this, “Statutory
27 Standing” in violation of the case or controversy clause establishing the Judiciary.
28 All rights are inherent in the individual and cannot be taken through legislation nor majority
decision. The purpose of the Amendments was to ensure that the rights of even one individual could
7 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 not be forsaken for the sake of the majority. The purpose of government is to protect the rights of the
The prosecution claims the State may serve its own interests and ignore the rights of the people,
then punish the people for exercising rights it had prohibited in violation of the Amendment’s restraints
4 upon the provisional powers granted in the Constitution.
6 The usurpation of another’s rights by simply labeling their private property as something other
7 than “property” is an act of enslavement, theft, or at a minimum, an attempt to defraud. The use of
deceit and threat of force to deprive another of his Constitutionally protected rights, while hiding
8 behind the authority, or color, of law, is criminal in nature, and is, in fact, a crime under U.S. Code
9 Title 18 Chapter 13 Section 242. Civil remedies may also be sought for this criminal deprivation of
10 rights under Title 42 Chapter 21 Subchapter I Section 1983.
As no claim that I have committed a crime by violating the rights of another has been raised, I
wonder why I am placed in a position where I must defend my actions; the innocent exercise of
12 fundamental unalienable rights. I wonder what claims I am to defend against, as no criminal
13 allegations have been raised.
14 Not only am I placed in the position of attempting to defend innocent actions, I must also
defend myself from those accosting my life and liberty while the government pays them to
aggressively pursue further suspensions of my rights, and ensure my political silence should I ever
16 become free from their unlawful restraints.
17 As no due process of law has taken my rights of property, the very nature of the claims against
18 me are criminal their attempt to punish me for the free exercise of my fundamental rights, I am
incapable of accepting they have any merit. If one must seek permission to exercise his fundamental
19 property rights, he has no rights at all.
20 As no right may be licenced to the people, the statutes claiming to permit one to possess and/or
21 distribute that which he owns are Unconstitutional, and must not be obeyed.
22 “And our decisions have made clear that a person faced with
such an Unconstitutional licensing law may ignore it and engage with
impunity in the exercise of the right of free expression for which the law
24 purports to require a license. "The Constitution can hardly be thought to
25 deny to one subjected to the restraints of such an ordinance the right to
attack its Constitutionality, because he has not yielded to its demands."
Jones v. Opelika, 316 U.S. 584, 602 (Stone, C. J., dissenting), adopted
27 per curiam on rehearing, 319 U.S. 103, 104 . [394 U.S. 147, 152]”
28 Shuttlesworth v. Birmingham (1969) 22 L Ed 2d 162, 394 U.S. 147, 89 S
8 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
2 The prosecution also claims that the statutes waive the Standing requirement of the courts,
and as such, are Unconstitutional. The prosecution also claims that the provisions of the Articles
supercedes the authority of the Amendments when the exercise of the privileged authority is
4 rationally related to a government interest. This argument renders the Amendments null and void,
5 as such, is both Unconstitutional as well as ignorant of prevailing case law.
6 The prosecution defends this position by claiming that the Constitutions of the States grant
specific enumerated rights to the people. This is flawed reasoning, and is in conflict with the
Constitution of the United States.
8 The sole purpose of the Constitutionally established government is to protect the rights of
9 the people, not to destroy them in furtherance of its own devised plans. If the government has a
legitimate interest, it must be the protection of individual liberty, not the undermining of it through
licensing statutes which expressly forbid the exercise of an individual’s unalienable rights. Our
11 Declaration of Independence was written because of this very type of oppression, and the
12 Constitution written to ensure the rights of the people were not violated by their limited and
The prosecution also appears to have a difficult time understanding the difference between a
right and a privilege, as it argues that I have no fundamental right to distribute a controlled
15 substance. The prosecution is correct in its vague statement, as one only has a fundamental right to
16 distribute property which he owns and ownership of any specific property is not universally
bestowed upon anyone at birth, there can be no fundamental right to distribute anything. The
prosecution’s claim states that because one is not born with the right to distribute property which he
18 comes to own later in life, such a right is waved or invalidated for not being “fundamental”.
19 If what the prosecution claims is true, there can be no rights of property, religion, speech,
20 contract, liberty, travel, etc. as one waives such rights at birth because he is incapable of exercising
them at birth. This being understood, the only fundamental rights anyone may have are to life and
expression, as living and crying are all a newborn is capable of doing of its own volition.
22 This reasoning undermines the Constitutional protections of the unalienable rights of a free
23 people. No authority to dictate moral codes, nor prescribe prohibitions on the exercises of one’s
rights without first attaining permission through a government license, exists within the
Constitutional American government.
The only way for the prosecution to raise challenge to my possession of this property is for
27 me not to have been the owner of the property.
28 The prosecution fails to challenge the ownership of the property in question. The
prosecution makes no claim that the ownership of the property was illegal. As such, its arguments
9 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 are moot, as one does indeed have a fundamental right to possess and distribute his private property.
The prosecution’s claim to the contrary comes off as a criminal attempt to control another
through use of force and threats of force. If one deems it prudent to abandon one’s rights for his
4 own safety that is one thing. For the state to threaten a free citizen’s life and liberty for choosing to
5 exercise his rights of property and contract, that is another entirely.
6 This is the entirety of the matter at hand; my rights of property and contract have been
revoked through an Unconstitutional statute that does not regard my rights as unalienable. Because
I chose, despite the duress imposed by a government that rules only through my privileged consent,
8 to exercise my rights of property and contract with another consenting adult, the prosecution claims
9 that I must be deprived of other rights, and be politically silenced so that I may not work to change
or speak out against this criminal oppression.
One need not understand the manipulations of language and expression used by attorneys to
12 comprehend the simple positions I intended to raise. A legal background seems to have obscured
13 the simple concepts presented in my original motion with exceedingly long definitions, labels, the
opinions of communist leaning activist judges, minor technicalities diverting away from the major
issues raised, and manipulations of facts in an effort to pervert my demand for equal protection and
15 justice into a merit-less legal catastrophe.
16 I appreciate the court’s willingness to hear my reply, and its acceptance of the Constitution
17 as the Supreme Law of the Land.
Points of Contention
As this is a rebuttal to the prosecution’s opposition, I will copy the enumeration from their
response for clarity;
(1) Prohibition of The Exercise of Property Rights is Unconstitutional.
22 The prosecution is correct in its determination that I believe the statues alleged to be in
23 excess of the Constitutional grants of power afforded to Congress. I find this to be a fact not
subject to great debate. They are arguing technicalities while the obvious facts, and my rights, are
being over looked and trampled through Unconstitutional exercise of the Constitutionally limited
25 and established powers of government..
26 Relevant authorities are on pages 30-33
28 (2) Congress May not Delegate Authorities it does not have.
10 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 The prosecution is partially correct in its determination that the delegation of the power to
prohibit MDMA by the DEA is an Unconstitutional delegation of congressional power, however
due to a lack of clarity in my initial motion they have misconstrued this point, and again I hope to
3 clarify with my comments found herin. What is Unconstitutional is the prohibition of the
4 possession of private property. Congress cannot delegate such authority, nor exercise it itself.
5 As for petitioning the legislature for a change in the laws claiming to prohibit the possession
of MDMA, the DEA violated the law to place MDMA into schedule I. This was done in defiance
of the rulings of Administrative Judge Young. According to Young, MDMA could not legally be
7 prohibited; not be legally placed into schedule I or schedule II.
8 Congress may only delegate powers afforded it, and once delegated must be strictly adhered
9 to. Congress ignored the Amendments when creating the CSA. The DEA ignored the law, the
limitations upon its powers, and Judge Young’s rulings against it twice in order to unlawfully
schedule MDMA. Both actions render any enactments under them void ab initio.
11 The prosecution claims the legislature is not bound by the Amendments, no limitations
12 upon delegated powers are to be enforced, and the courts will not rise up to strike down such
blatantly Unconstitutional exercises of limited, privileged, enumerated powers. If the purpose of
the courts is not to ensure the legislature does not exceed its authority, and strike down enactments
14 that violate the rights of the people, yet the courts cannot or will not do so, what is the purpose of
15 the courts?
16 If we have no rights which Congress cannot take away because of a “rational
Governmental interest,” that is vague and hypothetical, how can we possibly petition Congress to
restore rights it has already taken, as to do so would be seen as an uprising, and immediately
18 condemned and prohibited by the unrestrained powers seeking to protect themselves, as self-
19 preservation is a legitimate interest of any party?
20 The picture the prosecution paints of the government is very different from that painted in
the Constitution, and it is my belief that the Constitution still remains supreme over any laws or
rulings either invalidating it or contrary to it. If I am correct in this assumption, the prosecution’s
22 arguments must be dismissed for frivolity and Unconstitutionality, and the allegations against me
(3) Statute is Void for Vagueness
I was willing to concede on the vagueness argument as it was not my own and I was
uncertain of its strength and validity, however a clarification of my argument on page 21, backed
27 by the conflict between the prosecution’s actions and their own statements in their opposition seem
28 to show that the statute is, indeed, invalid under the vagueness doctrine. As such, I would be
11 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 loathe to abandon it, as the prosecution has made my case for me in this instance. This is further
2 addressed on page 21.
4 (4) Amendments Supersede Grants of Authority
The prosecution is again, correct, that I believe the Controlled Substances Act is in direct
violation of the 5th amendment. Regardless of their numerous quotations of Judicial Activists
6 promoting the Communist concept of “state owned” property and “state supremacy” over the
7 rights of the common man, common sense and a cursory reading of the Constitution show that my
claim is both solid, and sounded upon the constitution itself. The prosecution erroneously claims
this document grants Congress unlimited powers to strip every American of his unalienable rights,
9 should the mood of the majority swing in that direction, negating the intent of the founders, and
10 opposing case law prohibiting this very conduct.
11 This is addressed in the authorities below, and is an underlying theme of this surrebuttal;
the unalienable rights of the people are greater than the limited privileged powers of
government. The caselaw backing this statement may be found on page 44.
As the enactments used to bring the charges against me are void, the charges must be
16 To further clarify my point I have a few other arguments to make, in light of the
prosecution’s insistence upon citing details and ignoring the obvious issues, as well as their
fraudulent assertion that I have enumerated Constitutional rights.
19 (5) Possession and Distribution are Inherent Property Rights.
20 The prosecution’s allegation that I am not being charged with “possession” of my private
21 property but am being charged with “distributing” my private property is ridiculous and inane, a
mere technicality while ignoring the greater issue of my unalienable rights in an effort to divert
attention from them. Property rights include the right to contract with one’s private property, and
23 to dispose of it at one’s will. I will address this on page 11.
24 They are also incorrect in their reading of the statute as it clearly states the alleged offense is
25 “possession with intent to distribute.” I am indeed being charged with the mere “possession” of
my private property and committing a crime by intending violation of their alleged right to control
me, my actions, and my state of mind.
27 This entire argument is moot, however, as one cannot be deprived of his rights of property
28 without due process, and the prosecution makes no claim that I did not have ownership of the
property in question. Therefore the charges must be dismissed.
12 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 (6) Controlled Substances Act is Void Ab Initio.
2 An act of congress is not due process, and the entire Controlled Substances Act, is void ab
3 initio, for being Unconstitutional.
4 The CSA is based entirely upon the communistic idea of “State-sole-proprietorship”
established as operating procedure of Congress by Senate resolution 63 from April 24th,1933.
Congressional resolutions are not law, not due process, and cannot affect the court’s in any way.
6 The slow encroachment and usurpation of the rights of the people through the communist
7 principles established with Senate Resolution 63, and the idea of societal “rights” superior to the
rights of an individual, have lead us to forsake our freedoms and Constitutional foundations. If the
government insists on portraying itself as a Constitutionally established public servant, it must be
9 reigned in by the provisions of the amendments, and begin to do the job it is contracted to do by
10 swearing to uphold and protect the Constitution.
11 This oath, to protect and defend the Constitutionally established limitations upon the
government, supreme in authority to all other oaths, is all that differentiates our nation from a
nation of subservient subjects.
Violations of this oath are not to be taken lightly, as they lead us towards a despotic
14 government that completely disregards the rights of the individual citizenry.
15 No measure of ingenuity or misconstrued efforts to protect the PEOPLE of the nation will
be tolerated under the Constitutional provisions ensuring a limited government of enumerated
powers. The government’s purpose is not to protect the people of this nation, particularly from the
17 people’s own acts proving to be detrimental to themselves, but their purpose is to protect the
18 indefeasible RIGHTS of the people, ensuring their ability to choose for themselves what is best for
Yet the prosecution claims that this is a legitimate government interest; to revoke personal
liberty for the good of the individual.
“Section 841(a)(1)’s prohibition on the distribution,
22 and possession with intent to distribute, MDMA is rationally
23 related to the interest in minimizing the use of MDMA.”
[Page 19 Line 18 of Opposition]
People will undoubtedly make mistakes and suffer at times for their actions. This is not the
25 province of the state, and the state must remain neutral and passive at these junctures, or it will
26 become destructive of the very rights it is sworn to protect. The state has not done so, and has
become criminally involved in the usurpation of the very rights it is sworn to protect.
These criminal enactments against the citizenry must be reversed, and all charges
originating from these Unconstitutional and void enactments must be dismissed.
13 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
2 (7) Protecting Society is not Justification for Criminal Acts.
3 Criminals need to make excuses for their actions. This is all the prosecution appears to have
4 accomplished with their untimely response; justification of their criminal attempts upon my life,
liberty, and property.
They have not dismissed the accusations against them, but have accepted them and credited
6 their actions to be valid under Constitutional provisions without reservation or respect for the
7 amendments. It appears they have done this in an attempt to convince the court to join in their
criminal conspiracy, punishable under U.S. Code Title 18 Chapter 13 sections 241 and 242.
My actions, freely taken with other consenting adults, with a reasonable expectation of
privacy; simple exercises of my Constitutionally protected rights, do not need to be excused, nor
10 must I seek permission from the government (DEA licenses, Bar licenses, business licenses, etc.)
11 prior to exercising these rights.
12 To claim otherwise is to completely deprive me of my rights and criminally convert these
fundamental rights into mere privileges through Unconstitutional licencing statutes. Any statute
requiring a license by which one may exercise his unalienable rights is Unconstitutional and must not
14 be obeyed.
15 The prosecution, however, claims that I have no rights - that the government can do what it
wishes and dictate what is to be acceptable conduct, and threaten the populace with force and
violence if they fail to comply with the State’s demands. This is the very definition of Terrorism, and
17 cannot be tolerated by a privileged government.
18 Specifically, they claim that I only have rights issued to me by the government - mere
19 privileges granted to me from an ultimate state-derived source of power with the right to grant and
revoke all such privileges.
The prosecution is incorrect in their arguments as my rights are unalienable, indefeasible, and
protected by the Constitution, not enumerated within it, and are not mere privileges bestowed upon
22 me by the privileged government carefully constructed in the Constitution with powers derived from
23 the consent and rights of the people.
If, indeed, congress and the courts have co-conspired over decades to undermine the
protections of the rights of the American people through a slow steady encroachment, this does not
25 excuse the continued criminal usurpation of the people’s rights.
26 To violate the Constitutional protections of the people’s rights is to breach the contract with
27 the American people, waiving any and all implied powers or authority derived from the
Constitutional contract each public official swears to uphold. Through such a claim, one invalidates
the very foundation of the office from which they speak, rendering both the office and it’s enactments
14 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 This motion is not being made in reference to a personal matter; it is not a personal vendetta
2 against the controlled substances act. While it may have begun that way, it is now a desperate fight
for liberty, a fight in which I am willing to give my life should it become necessary, as I have never
rescinded my oath of Enlistment to the U.S. Airforce, an oath by which I swore to protect and defend
4 the Constitution of the United States from all threats, foreign and domestic, at whatever cost
6 The prosecution’s actions and assertions are direct threats to the Constitutional protections of
the rights of the American people. I cannot stand by idly, consent to their mistreatment of myself
and my co-defendants, and retroactively waive my rights of property and contract so that I may be
8 tried for the “crime” of exercising my rights without express consent from the government.
10 This surrebuttal is but a request for the privileged and limited Constitutional government to
recognize the origin of its authority, and be bound by the contract it has taken with the people who’s
rights and consent grant all powers to which the government may lay claim.
(8) No Corpus Delicti, No Standing, No Plaintiff, No crime.
14 All crime requires a corpus delicti - the body of a crime, to be defined as consisting of 2 parts,
15 a) loss or injury suffered by a party with standing, and b) someone’s unlawful conduct resulting in the
specific and palpable injury or loss expressed by the plaintiff with standing. As only the second
aspect of the corpus delicti is alleged by the prosecution, no crime exist. This case is invalid on its
17 face for failure to state a claim for which relief may be acquired.
19 The allegations raised against me are for the allegedly “criminal” act of possession and
20 intent, as well as actual entry into a consensual contract, to distribute my private property.
I find the nature of this property to be irrelevant, as property rights are immutable and
indefeasible. Rights do not get more fundamental than the basic right to possess the property which
22 one owns. That which one exchanges, one asset, in a mutually consensual contract with another is
23 the only honest way to come into the ownership of property. Possession may be either be by
ownership or consent of the owner; consent of the owner amounts to privileged use.
The possession I am alleged to have committed was of my own property, which I had by
right of ownership the ability to both possess and distribute as I saw fit.
This is not being debated here, as no claim of ownership is being raised, only the issue that I
27 possessed the property in question.
28 Possession by ownership is by divine or natural right.
15 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 No allegation is made that the prosecution or undefined plaintiff has a higher claim to this
2 property. Because of this, they lack standing to raise complaint of my possession or the manner in
which I may have chosen to discard of the property in question.
(9) Woes of Society
The prosecution claims that uninhibited flow of MDMA to society would cause undo woes
6 and dilemmas with which society would not be able to cope. This is an erroneous claim based on
7 outdated science that was inconclusive at the time and called for more in-depth research, not
prohibition, as the findings were too inconclusive.
The intervening time between the addition of MDMA, unlawfully, to the CSA, and today,
the government has funded and influenced much research of this chemical. The majority of the
10 negative findings were from government sponsored facilities or grants, and nearly all of them have
11 been proved fraudulent or flawed.
12 The claim that the use of a product with reduces depression in nearly 30% of its occasional
users, reduces violent tendencies in occasional users, has shown to cause no brain damage or other
physiological harm in recreational doses, increases empathy, is non-addictive, non-lethal in
14 recreational dosages, and other than through adulterants, is otherwise safe will cause undo societal
15 woes, creating a need for congress to deprive the citizenry of their unalienable rights in an effort to
prevent its use is preposterous.
Without the laws prohibiting the possession or distribution of MDMA, no criminal elements
17 are implicated in its use or distribution. MDMA reduces the likelihood of violent crime in users, and
18 users are generally self supportive, stable members of the community with full time jobs.
19 Without the laws prohibiting the possession or distribution of MDMA, ecstasy pills would
not come in unknown potencies, or with adulterants.
Every pill the prosecution alleges I possessed without their permission was tested as positive
for MDMA and negative for any dangerous adulterant.
22 The prosecution claims I should be punished for seeking to provide a demanded service to
23 my friends in an effort to ensure their safety, by ensuring a clean and tested source for their chosen
vice. This claim has no merit as no one was harmed by my actions against their will. No crime has
been committed. No complaint has been filed against me.
If the prosecution can present a party willing to file suit against me I will accept whatever
26 punishment they request for my crimes against them. As no party exists, I request dismissal of the
27 false allegations of criminal activity to be dismissed.
16 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 If Congress or the state had any initiative to protect society from the woes associated with
2 drug use, they would ensure safe environments for such use knowing that they will never eliminate
drug use completely.
Many police officers, prosecutors, and judges have stepped up and said, “NO!” to
prohibition. I have done a 2 hour interview with Howard Wooldridge, an officer of over 16 years
5 and one of the speakers of LEAP, and we agreed on nearly every point. This interview may be found
6 at http://mike.revolutioni.st/ffr/.
7 They cite the problems of prohibition, the redundancy and pointlessness of the
execution of the laws of prohibition, and the unnecessary risks the laws create for both users,
society, and law enforcement that cannot be rationalized by a reduction in use because the
9 laws do nothing to reduce the use of the drugs they seek to prohibit.
10 I take their contention further by exposing the criminal nature of the laws, the
Unconstitutional deprivation of the individual’s rights by the government thought unlawful
The only benefactors of prohibition are 1) the pharmaceutical companies that outlaw
13 unpatentable drugs from competing in a closed market, and 2) the street dealers who rely
14 upon the fear of the populace to prevent competition in an artificially inflated monopolistic
The truest woes of society are that the state, in its efforts to protect the people from
their own desires, criminally depriving them of their right to pursue happiness, have only
17 benefitted those most likely to cause society harm.
18 The words of the founders come to mind here;
19 “Those who would give up essential Liberty, to purchase a
little temporary Safety, deserve neither Liberty nor Safety.”
I refuse to relinquish my liberty to attain some vague notion of security offered by
22 the State wherein I am free to exercise certain rights, but if I choose to exercise many of
23 these rights without permission, my rights will be violated through use of violent force by
the state itself.
The laws create more problems than they solve. I will cover this in more depth on page
17 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 (10) No Plaintiff, No Jurisdiction.
2 As there is no plaintiff with standing, the very jurisdiction of this court is called into
3 question, and if it is to be shown that this court is without jurisdiction, my presence here is not an
act of consent, but is an act of self preservation made under duress.
I do not believe the court is willingly involved in the conspiracy against me. I believe the
court has been deceived in the same manner as the prosecution into acting in a manner inconsistent
6 with the Constitution while believing firmly that their actions were just, necessary, and proper.
7 The prosecution’s claim of legitimacy in the usurpation of my inalienable property rights is
utterly without merit, as no limited enumerated power of congress may supercede the unalienable
rights of any minority group or individual, judicial rulings not-withstanding, as they are over-ruled
9 by the Constitution itself, the Supreme Law of the Land.
10 My experiences over the last year have shown me that the federal government no longer
11 respects the rights of the people, rights which it is sworn to protect. The government has no place
nor duty to defend the people from themselves, and it is a direct violation of their oath to protect
the rights of the people should they propose measures which do so.
It is my intent to rectify the wrongs against the American people and restore freedom and
14 liberty to this nation that is suffocating in their absence.
15 I find the statements above to be correct and true. This document, both above and below,
by my own hand with exception of those quoted, express my views and my contentions of the
exercise of the prosecution in this case. I swear under penalty of perjury that these statements are
17 both nice and accurate. The statements above are validated through case law as cited and
18 expressed in depth below, precluding their dismissal for being frivolous or unfounded.
"The best way to get a bad law repealed is to enforce it strictly."
"The probability that we may fail in the struggle ought not to deter us
from the support of a cause we believe to be just."
22 "I am not bound to win, but I am bound to be true. I am not bound
23 to succeed but I am bound to live the best life that I have. I must stand
with anybody that stands right and part from him when he goes
wrong." Abraham Lincoln
28 Michael Eugene Pohlable April 08th, 2008
18 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
2 SUMMARY OF CASE
3 For a four month duration, agents of the federal government contracted
with and monitored the actions of defendants Pohlable and others through the
fraudulent and deceptive use of an informant and non-consensual, undisclosed,
5 hidden video and audio monitoring equipment inside of a private apartment in
6 violation of defendant’s protected 4th amendment right to privacy where it is
During this time no charges were pressed against the defendant, any of
the co-defendants in this case, nor were any criminal complaints filed related to
9 the conduct of defendant Pohlable, nor any other co-defendant in this alleged
11 There was no pending warrant for the arrest of defendant Pohlable at
this time. Defendant Pohlable had never been charged with a crime, nor
arrested prior to the issuance of a warrant based upon the prosecution’s claim,
13 without standing nor presentation of a plaintiff, that the defendant was
14 conducting unlawful activities.
15 As no plaintiff is alleged to have been harmed or suffered from the
alleged acts, the prosecution fails to invoke jurisdiction of this or any court.
“There are three requirements for Article III standing:
19 (1) injury in fact, which means an invasion of a legally
20 protected interest that is (a) concrete and particularized, and (b)
actual or imminent, not conjectural or hypothetical; (2) a causal
relationship between the injury and the challenged conduct, which
22 means that the injury fairly can be traced to the challenged action
23 of the defendant, and has not resulted from the independent action
of some third party not before the court; and (3) a likelihood that
the injury will be redressed by a favorable decision, which means
25 that the prospect of obtaining relief from the injury as a result of a
26 favorable ruling is not too speculative.” Lujan v. Defenders of
Wildlife, 112 S. Ct. 2130, 2136 (1992)
19 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 In stark contrast to Mr. Keenan’s allegations that the statute provides
2 standing in this case, the courts have ruled otherwise.
4 “Standing in no way depends on the merits of the
plaintiff’s contention that particular conduct is illegal.”
Watkins v. Resorts Intern. Hotel & Casino, 591 A.2d 592,
6 601 (N.J. 1991).
9 "Proof of the corpus delecti is required in all
10 criminal cases...There are three basic elements in the proof
11 of a crime: (1) the occurrence of loss or injury, (2) criminal
causation of that loss or injury and (3) the identity of the
12 defendant as the perpetrator of the crime. However, it is
13 firmly established in this State that the term corpus delecti
embraces only the first two of these elements-loss or
injury and criminal causation." State v. Hill, 221 A.2d 725,
17 As well as;
“Component parts of every crime are the occurrence
19 of a specific kind of injury or loss, somebody’s criminality
20 as source of the loss, and the accused’s identity as the doer
of the crime; the first two elements are what constitutes the
21 concept of “corpus delecti.” U.S. v. Shunk, 881 F.2d 917,
22 919 C.A. 10 (Utah).
25 “The plaintiff must show that he himself is injured by
26 the challenged action of the defendant. The injury may be
indirect, see United States v. SCRAP, 412 U.S. 669, 688, 93 S.Ct.
2405, 2416, 37 L.Ed.2d 254 (1973), but the complaint must
28 indicate that the injury is indeed fairly traceable to the defendant’s
acts or omissions. Simon v. Eastern Ky. Welfare Rights Org., 426
20 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 U.S. 26, 41-42, 96 S.Ct. 1917, 1925-1926, 48 L.Ed.2d 450 (1976);
2 O’Shea v. Littelton, 414 U.S. 488, 498, 94 S.Ct. 669, 677, 38
L.Ed2d 674 (1974); Linda R. S. v. Richard D., 410 U.S. 614, 617,
93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973).” Vil. of Arlington
4 Hts. v. Metro Housing Dev., 429 U.S. 252, 262.
6 Even Further;
7 “First we must address the issue of standing, a judge-made
8 doctrine based on the idea that ‘[a] court may and properly
should refuse to entertain an action at the instance of one who
rights have not been involved or infringed.’ 59 AmJur.2d
10 Parties § 30 (1987). In state law it parallels the Constitutional
11 restriction on federal court jurisdiction to “cases and
controversies.” U.S. Const. Art. 3 § 2. It has been said that no
case or controversy is presented where the plaintiff lacks standing
13 to sue. Gilligan v. Morgan, 413 U.S. 1…“In determining whether
14 the plaintiff has a personal stake sufficient to confer standing, the
focus should be on whether the complaining party has alleged an
injury in fact, economic or otherwise…” Mayhew v. Wilder, 46
16 S.W.3rd 760, 767.
18 The prosecution fails to allege an injury or harm has even taken place,
19 let alone one which is distinct and palpable.
20 Their accusation that by exercising my rights of property and contract,
i.e. engagement in commerce, is an act for which Congress has the authority to
prohibit outright as it “severely affects (interstate) commerce”, is to claim that
22 Congress is capable of committing crimes.
23 “Whoever in any way or degree obstructs, delays, or
24 affects commerce or the movement of any article or commodity
25 in commerce, by robbery or extortion or attempts or conspires so
to do, or commits or threatens physical violence to any person or
26 property in furtherance of a plan or purpose to do anything in
27 violation of this section shall be fined under this title or
imprisoned not more than twenty years, or both.” Title 18 Part 1
Chapter 95 § 1951 of the U.S. Code.
21 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 The affects of my actions on interstate commerce are both hypothetical and conjectural.
2 “Severely affects” interstate commerce... HOW? If the affects of my actions severely affect
interstate commerce there should be distinct and palpable evidence of this affect.
The actions of the Government and the prosecution DO affect interstate commerce in a
criminal manner, as they commit and threaten physical violence, robbery, and extortion under
5 false color of authority in order to obstruct commerce. They make no claim otherwise, but seek to
6 justify their actions under Unconstitutional statutes and unlawful seizures of authority over the
unalienable rights of the American public.
There is a continual threat of physical violence imposed by the very statute raised against
me, which falsely grants authority to agents of the state to steal rightfully owned property from
9 individuals for merely possessing it. We are supposed to be a free people in a free country, but
10 our own government terrorizes us, commits crimes against us, and keeps us under duress.
11 These laws are a travesty upon the American people as they undermine the Constitutional
securities of their freedoms and make the exercise of fundamental property rights allegedly
criminal acts. Any law which deprives the individual of his fundamental rights is a criminal
13 enactment, not a valid law, and no one must be required to obey it, nor any court to enforce it. For
14 a court to do so is to operate without jurisdiction, as no plaintiff exists in the case. If there is no
plaintiff with standing, jurisdiction cannot be established.
The general rule is that an Unconstitutional statute, though
having the form and the name of law, is in reality no law, but is wholly
17 void and ineffective for any purpose since Unconstitutionality dates
18 from the time of its enactment and not merely from the date of the
decision so branding it; an Unconstitutional law, in legal
contemplation, is as inoperative as if it had never been passed ... An
20 Unconstitutional law is void ab initio. (16 Am. Jur. 2d, Sec. 178)
22 The very laws the prosecution raises against me are in violation of federal law, and I
23 am a victim with standing to raise claims against them. My actions, however, do not provide
standing for the government at all, and the false charges raised on the fictitious concept of
“Statutory Standing” must be dismissed.
“In order to establish standing, a party must
26 demonstrate three essential elements. Metropolitan Air
27 Research Testing Auth. Inc., v. Metropolitan Gov’t of
Nashville and Durston County, 842 S.W.2d 611,
615…First, the party must demonstrate that it has
22 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 suffered an injury which is ‘distinct and palpable,’…and
2 not conjectural or hypothetical…Second, the party must
establish a causal connection between the injury and the
conduct of which he complains…Third, it must be likely
4 that a favorable decision will redress the injury…These
5 elements are indispensable to the plaintiff’s case, and
must be supported by the same degree of evidence at each
stage of litigation as other matters on which plaintiff
7 bears the burden of proof. Lujan, 504 U.S. at 560…”
8 Petty v. Daimler/Chrysler Corp., 91 S.W.3d 765.
9 The prosecution’s claim that Congress may prohibit that which they are tasked
with regulating, so that they are no longer required to regulate it, is a criminal act of
negligence on behalf of congress, as the Constitutional clearly prescribes this as one of
11 the duties and obligations of Congress.
12 If Congress does not wish to fulfil the duties they have been contracted through
13 the Constitution to do, there is no reason to consent to their existence, and Congress
ought to be abolished as it no longer protects the rights of, nor serves the people as it is
sworn by oath to do.
After contracting with the informant, funding the informant, and consenting to
17 permit the informant to act on their behalf, demanding the informant commit what the
18 prosecution alleges as “criminal conduct” and a “dire threat” to interstate commerce, for a
period of four months, did an consenting and co-conspiring observer deem it important
enough to file what they allege is a criminal complaint against my consensual conduct.
21 As precedence for providing for the prohibition of such conduct by Agent James
22 Donovan - as he was a contributing co-conspirator in these alleged “criminal” acts,
24 “Here we are concerned with neither eavesdroppers nor
25 thieves. Nor are we concerned with the acts of private
individuals. . . We are concerned only with the acts of federal
26 agents whose powers are limited and controlled by the
27 Constitution of the United States.
28 The Eighteenth Amendment has not, in terms,
empowered Congress to authorize anyone to violate the
23 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 criminal laws of a State. And Congress has never purported
2 to do so. Compare Maryland v. Soper, 270 U.S. 9. The terms of
appointment of federal prohibition agents do not purport to
confer upon them authority to violate any criminal law.
4 Their superior officer, the Secretary of the Treasury, has not
5 instructed them to commit crime on behalf of the United States.
It may be assumed that the Attorney General of the United
States did not give any such instruction.” Olmstead v. United
7 States 277 U.S. 438
8 As a co-conspirator in these acts, Agent Donovan was in violation of both Federal and
9 State laws. There is no statutory provision for an agent of the government to persist in the
allegedly criminal activities prohibited outright by the statute. Even if he is granted immunity
to the federal laws from his position in the federal government, a blatant act of favoritism and
11 a violation of the equal protections clause, he is not made immune from state statues also
12 claiming to prohibit such conduct.
13 There is also no statutory provision allowing for the employ or utilization of private
citizens to commit these acts at the behest of government agents. To do so imposes the very
void for vagueness doctrine the prosecution claims does not exist. By their own admission,
15 the statue is invalid as it is void under the concept of arbitrarily discriminatory and selective
17 If the state may consent and encourage allegedly unlawful conduct, punish those that
interact with the state’s agents being granted immunity from enforcement of the statute they
are violating, the state is being discriminatory and selective in its enforcement of the law.
The case for vagueness was provided by the prosecution in their attempt to discredit it;
20 I’ll not quote all of their case law, but here is an example;
22 “The void-for-vagueness doctrine requires that a penal
statute define the criminal offense with sufficient definiteness
that ordinary people can understand what conduct is prohibited
24 and in a manner that does not encourage arbitrary and
25 discriminatory enforcement.” Kolender v. Lawson, 461 U.S.
352, 357 (1983).”
If certain conduct is criminal, one may not be licenced to do it (If one can imagine a
license to rob banks, commit murder, or rape...). The state has no rights greater than those of
28 the individual, and each claim above another’s rights is a crime. The state is not above
24 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 committing crimes, as is evident of the last 40+ years of oppression under these
2 Unconstitutional statutes.
3 The vagueness doctrine invalidates these statutes again by the governments use of,
encouragement of, and consent to breech the law by the informant, who was given
discriminatory immunity to the laws. Agent James Donovan was also granted
5 discriminatory immunity.
7 “We are concerned only with the acts of federal agents
8 whose powers are limited and controlled by the Constitution
of the United States.
The terms of appointment of federal prohibition
agents do not purport to confer upon them authority to
11 violate any criminal law” Olmstead v. United States 277 U.S.
13 It is both arbitrary and discriminatory to enforce a statute against those the
14 government seeks out through fraudulent misrepresentation in what is perceived as a
mutually consensual contract, yet they fail to enforce the law against those that know they
15 are contracting with the government in violation of the same law. This is an act of fraud to
16 deprive another of his property and freedom. This is an act of extortion leading to robbery as
defined in U.S. Code Title 18 section 1951.
18 Unless both Agent James Donovan, the mastermind and instigator of the entirety of
the allegedly criminal conduct, and the informant, who is not licensed by the DEA and
19 committed the exact same consensual transactions I am being tried for, have identical charges
20 pressed against them as co-defendants in this case, the prosecution is discriminating against
21 my rights and the rights of my co-defendants by enforcing this statute only against us. This
discriminatory enforcement is not isolated to this particular case, it is widespread and
22 commonplace, showing that the law is, indeed, executed in a discriminatory way.
23 Agent James Donovan, while being in contact with, contracting with, and funding
24 the informant to purchase, possess, and distribute the property in question, is also a co-
25 conspirator in this case, equally liable for his conduct under Title 21, United States Code,
Section 841(a)(1) and 846.
The informant is also equally liable under these same statutes for conspiring to,
27 possessing, possessing with intent to distribute, and distribution of the allegedly “controlled
25 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 The prosecution is choosing where and when to enforce these laws with complete
2 disregard to the 8 amendment, and upholding the invalidity of the laws under the vagueness
After four months of invading the defendant’s privacy without probable cause and
without a warrant, FBI Agent James Donovan filed an alleged “complaint”. For this
6 “complaint” to have merit and provide standing, Agent James Donovan must allege personal
7 loss or injury suffered from the actions listed in the complaint. Without such allegations, this
“complaint” is nothing more than an “information” attained through an observing party - a
potential witness of an actual crime, and in this case, the questionable word of a co-
10 Agent James Donovan did not allege personal injury or loss. Agent James Donovan
11 failed to provide standing to file a complaint against my consensual actions with a third
Agent James Donovan has no authority to raise the rights of another to attain
“The plaintiff must show that he himself is injured
15 by the challenged action of the defendant.” Vil. of Arlington
16 Hts. v. Metro Housing Dev., 429 U.S. 252, 262.
18 “To gain standing to bring an action, a plaintiff must
19 allege a distinct and palpable injury. Warth v. Seldin, 422 U.S.
490, 501.” Sears v. Hull, 961 P.2d 1013, 1017 (1998).
"When a party without standing purports to
commence an action, the trial court acquires no subject
23 matter jurisdiction. Barshop v. Medina County Underground
24 Water Conservation District, 925 S.W.2d 618, 626…(‘standing
is a necessary component of subject matter jurisdiction’). See
also Rames v. Bryd , 521 US 811…(‘“standing is perhaps the
26 most important of [the jurisdictional] doctrines’”); National
27 Organization for Women, Inc., v. Scheidler , 510 US
249…(‘standing represents a jurisdictional requirement which
28 remains open to review at all stages of the
litigation’)…(‘standing is a jurisdictional prerequisite to
26 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 every case and may be raised at any stage of the
2 proceedings’)…” Ex parte James, 836 So2d 813, 871, 872-873.
3 The only person with standing to make a complaint would be the informant, however
the prosecution’s case is more confounded by their use of the informant. The informant, while
committing other known crimes, has not only been granted immunity from prosecution for
5 these crimes, but has also been encouraged and one can reasonably believe rewarded either
6 monetarily or otherwise for committing these criminal acts.
7 The informant’s false representation as a private entity is an intentional act of criminal
fraud amounting to extortion. The government’s informant committed commissioned acts of
fraud when falsely representing his interests and intentions and engaging in otherwise
9 consensual contracts.
10 These contracts should be governed under the Uniform Commercial code, and I have
11 yet to find any provisions of the UCC by which my actions were in violation of any governing
However, as the informant accepted the goods after inspecting them then resold
them/re-distributed them, and after having another party verify that the products were as
14 claimed, neither myself nor my co-defendants can be held liable for any complaints raised at
15 this point.
17 The matter of establishing standing of the informant is immaterial as his consent alone
18 would over rule any allegations of loss or injury - as only an individual may choose to waive
his rights, and to what extent he chooses to waive them. A consensual waiver of one’s rights
19 cannot be used to later criminalize another’s acts committed with one’s consent.
20 If this were not the case, piercings, tattoos, and other voluntary harm suffered at the
21 consent and will of the party being injured would be criminal as well. If voluntary harm can
22 be criminalized it is reasonable to expect the government to prohibit fast food as it is
detrimental to the health of the public, and for the greater good needs to be stopped.
There are some that make this case, but they are opponents of liberty, as are those
24 championing the laws prohibiting ones free choice with regards to MDMA and other items
25 listed in the Controlled Substances Act.
27 The prosecution alleged in court on January 11th that they had statutory standing, and
28 did not have to prove that a “crime” - corpus delicti - had been committed in order to bring
criminal charges against me.
27 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 The prosecution claims that a “crime” must not be proven for statutes falling under the
2 Controlled Substances act. They claim that in this case for there to be criminal charges
brought against me, no crime must be proved, nor even alleged. I find this rather disturbing,
as only crimes should be punished through criminal court proceedings, and only in execution
4 of common law crimes are the courts Constitutionally permitted to deprive one of his life or
5 liberty without his consent.
6 Again, the corpus delicti includes a specific loss or harm suffered by a party with
standing, and someone’s unlawful acts resulting in such injury or loss.
The prosecution also seems to fail to understand the derivation of rights as he
consistently claims that I have no “fundamental Constitutional right” to possess “prohibited”
11 I agree fully with the prosecution that I have no fundamental Constitutional right to
12 possess MDMA.
13 However I find his position to be wholly in error, flawed in it’s conclusion, and
14 fraudulently misleading in its use.
15 For a fact I have no fundamental Constitutional rights to do anything.
16 I have no Constitutional rights at all, fundamental or otherwise, nor do I make such a
claim. Only the prosecution claims that I have rights established by Constitutions of the
17 states, and it is, again, in error. Rights are not created by government, they are pre-existent to
19 What I do have, and lay claim to, are unalienable rights protected by the amendments
20 of the Constitutions; natural rights which may not be taken from me even if I should wish to
give them up myself .
As is made clear in the 9th amendment, rights are not enumerated, nor granted by the
“The enumeration in the Constitution, of certain rights
24 shall not be construed to deny or disparage others retained by
25 the people.”
26 The prosecution’s allegation that a label derived from congress may be placed onto one’s
private property and thus deprive him of his Constitutional right to possess it consumes me with utter
dread. The 5th amendment provides the only manner by which Congress my take away one’s rights of
28 property and liberty; through due process of law. No clause nor provision elsewhere may over ride
this amendment for any reason, contrary to the prosecution’s claim.
28 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 "If there be any conflict between these two provisions, the
2 one found in the Amendments must control, under the
well-understood rule that the last expression of the will of the
lawmaker prevails over an earlier one." Schick vs United States
4 [(1904) 195 US 65, 49 L.Ed. 99, 24 S. Ct. 826
5 If the prosecution firmly believes that my rights are derived from the Constitution; i.e. mere
6 privileges granted to me after the creation of an all powerful state, then the prosecution and myself are
not operating under the same Constitution, do not have the same definition of “freedom,” and I worry
that its definition of “liberty” is the ability to do that which I am told to do.
My mother makes similar arguments stating that she is, “Free enough” and does not see the
9 need to question authority - even when she feels strongly that it is being abused and needs reformed.
10 This is a prime example of Stockholm Syndrome, where the victim begins to side with the criminal
agents that have wronged them through a constant barrage of criminal idealism numbing the good
sense and character of the victim.
I apologize, but I cannot adopt the reverse mind set that it is better to be “Free Enough” while
13 being victimized through the Unconstitutional usurpation of my unalienable rights through licensing
14 laws and the use of regulatory powers that are supposed to be limited by the amendments of the
Constitution. This is a criminal protection racket, and I refuse to give in to criminal threats of force.
For over a year I have been denied my rights by the court and the prosecution with no
legitimate criminal claim against me. I have lost my housing and job due to travel restrictions
17 arbitrarily imposed upon me preventing travel 20 miles outside of a restricted privileged area of
18 freedom so that I may go to my employer’s 2nd home and fulfil my duties as his assistant.
19 I have spent more time fighting against my own counsel, demanding my rights be recognized,
than I have appealing to the court for relief.
I have asked continually for someone to tell me who’s rights I have violated so that I may offer
up sufferance for the crimes I have committed against him, but have continually been told that I
22 committed no “crime” but must be punished for the good of society, which I have wronged
23 hypothetically, vaguely, and under a conjectural theory based upon flawed science that is outdated
and incorrect. This is but another subject that is moot, as my rights of property are unalienable, but I
will cover it again in depth on page 30.
The call for all Americans throughout history has been, “Liberty or Death!” In this case it is
26 “Liberty or free housing, free food, free education, and free clothing!” There is no incentive for me to
27 back down, other than that I do not believe I am entitled to these benefits to the cost of my
28 countrymen, tax payers, who would be billed in excess of $85,000 per year for me to receive such
29 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 If I have, indeed, wronged society in some way, then I am sorry, however I do not see
2 removing me from the workforce and bestowing me with benefits resulting from an increase in tax-
payer resources of over $80,00 per year as enabling me to work off the debt to society I may have
As the prosecution has failed to convince me, however, that any crime has been committed, I
5 cannot permit the prosecution to continue in their attempts upon my liberty and commit a distinct and
6 palpable financial harm to society on my behalf. The figure of $85,000 per year for a federal prisoner
is a low average. I would not wish to impose such a penalty upon the American people for no good
cause, and desire strongly to avert inflicting this additional financial burden upon the tax payers.
I cannot accept the allegations and allow these criminal attempts to overthrow the
9 Constitutional constraints upon government to go unchallenged. To do so would be entirely un-
10 American, and in violation of my Oath of Enlistment in the U.S. Air Force - to protect the
Constitution from all threats, foreign and domestic.
The prosecutor is not alone in his belief that the Constitution grants rights, and commonly
held belief is a dire threat to our rights, and the Constitutional foundations of this nation. A quick
13 glance at the declaration of Independence and the Constitution itself will quickly resolve this issue if it
14 is called into question.
15 If one has property rights, they have the right to contract with their property. To claim that
congress may prohibit contracts with one’s property is to claim that congress can prohibit one’s right
to possess or own property. If the prosecution’s opinion is correct, the Constitutional protections of
17 the rights of the people are completely meaningless, the 9th amendment is utterly null and void, and
18 the “few,” “limited,” enumerated powers of Congress have become so numerous and undefined that
no one knows their limitations.
Unless the prosecution can state a claim for which relief may be granted, present a plaintiff
with standing, and explain how my actions were criminal in nature and not mere exercises of my
21 rights in defiance of Unconstitutional licencing laws, then I must continue to fight these false
22 allegations, through either writs or other forms of appeal should these allegations not be dismissed.
26 Statement of Facts
27 I have unalienable rights of property and contract.
28 “That property which a man has honestly acquired he
retains full control of, subject to these limitations: First, that he
30 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 shall not use it to his neighbor's injury, and that does not
2 mean that he must use it for his neighbor's benefit; second, that
if the devotes it to a public use, he gives to the public a right to
control that use; and third, that whenver the public needs
4 require, the public may take it upon payment of due
5 compensation.” BUDD v. PEOPLE OF STATE OF NEW
YORK, 143 U.S. 517 (1892)
I do not have Constitutional rights, nor rights granted by the Constitution.
“WHEREAS the powers granted under the proposed
Constitution are the gift of the people, and every power not
9 granted thereby, remains with them, and at their will; No
10 right therefore of any denomination, can be cancelled,
abridged, restrained or modified by the Congress, by the
Senate or House of Representatives, acting in any capacity, by
12 the President, or any department or officer of the United
13 States” Continental Congress WEDNESDAY, the 25th of
Congress cannot create rights, as rights are pre-existent to the creation of Congress.
Men are endowed by their Creator with certain
unalienable rights,-'life, liberty, and the pursuit of
17 happiness;' and to 'secure,' not grant or create, these rights,
18 governments are instituted.” BUDD v. PEOPLE OF STATE
OF NEW YORK, 143 U.S. 517 (1892)
Congress cannot criminalize the claim nor exercise of a Constitutionally protected right.
"The claim and exercise of a Constitutional right cannot
be converted into a crime." Miller v. US, 230 F 486, at 489.
The government’s powers are derived from my rights and consent.
No powers of government may supersede the rights of myself, nor another person, as those
powers are not vested in the person attempting to grant those powers to the government.
27 "If there be any conflict between these two provisions,
28 the one found in the Amendments must control, under the
well-understood rule that the last expression of the will of the
31 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 lawmaker prevails over an earlier one." Schick vs United States
2 [(1904) 195 US 65, 49 L.Ed. 99, 24 S. Ct. 826
3 No party with standing has made a claim against myself or my actions.
4 “Standing in no way depends on the merits of the
plaintiff’s contention that particular conduct is illegal.”
Watkins v. Resorts Intern. Hotel & Casino, 591 A.2d 592, 601
6 (N.J. 1991).
7 “There are three requirements for Article III standing:
8 (1) injury in fact, which means an invasion of a legally
protected interest that is (a) concrete and particularized, and (b)
actual or imminent, not conjectural or hypothetical; (2) a causal
10 relationship between the injury and the challenged conduct, which
11 means that the injury fairly can be traced to the challenged action
of the defendant, and has not resulted from the independent action
of some third party not before the court; and (3) a likelihood that
13 the injury will be redressed by a favorable decision, which means
14 that the prospect of obtaining relief from the injury as a result of a
favorable ruling is not too speculative.” Lujan v. Defenders of
Wildlife, 112 S. Ct. 2130, 2136 (1992)
There is no “crime” with which I am being charged, no allegations for which I must defend
18 "Mere legislative fiat may not take the place of fact in
19 the determination of issues involving life, liberty and property.
Manley v. State of Georgia, 279 U.S. 1, 49 S.Ct. 215, 73 L.Ed.
575...The ultimate fact to be established here, is illegal
21 possession of a gun. The fact proven would be merely the
22 legislative presumption. There would be no actual proof...Under
our law the corpus delecti must be proved; here it is
presumed...The Legislature has no power to declare one guilty
24 of a crime; that is the function of the court after due proof. It is
25 Unconstitutional for the Legislature to presume the guilt of the
accused. Under this section there is nothing against which to
defend, because no crime has been proved." People v. Pinder, 9
27 N.Y.S.(2d) 311, 310-311.
28 Further upheld in 1998;
32 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 "Mere legislative fiat may not take the place of fact in the
2 determination of issues involving life, liberty, or property."
Childress, 78 Ariz. at 4-5, 274 P.2d at 335 (quoting Manley v.
Georgia, 279 U.S. 1 1929)) State v. Klausner
A legislated presumption is not a criminal offense.
The presumption that the possession of one’s private property can be criminal is directly
6 Unconstitutional and irrational.
7 Congress has no power to create rights, as rights are pre-existent to the formation of
8 government. As congress cannot create rights, to include “rights of society,”, statutory standing is a
myth created by the prosecution in an attempt to legitimize their criminal actions against myself, and
“Standing in no way depends on the merits of the
11 plaintiff’s contention that particular conduct is illegal.”
12 Watkins v. Resorts Intern. Hotel & Casino, 591 A.2d 592, 601
Unconstitutionality is illegality of the highest order. --(Board of
15 Zoning Appeals V. Decatur Company of Jehovah's Witnesses,
16 233 Ind. 83, 117 NE 2nd. 115)
“An Unconstitutional statute is an utter nullity, is void from the
date of its enactment, and is incapable of creating any rights.” - Probst
19 V. Board of Education Lands and Funds, DC Neb 103 F
20 MDMA Facts
21 MDMA (Ecstasy) is more severely punished than heroin on a dose per dose basis because of
22 a bill passed in 2001 on the now retracted science of Dr. Ricaurte which falsely showed toxicity of
24 1 pill of ecstasy = 25 doses of heroin = 4.4oz (>1/4 pound) marijuana 
26 A lethal dose of MDMA is 1.6 times a lethal dose of caffeine (Caffeine ~200mg/kg,
MDMA ~325mg/kg [4 - under section V]
145 CAFFEINE pills would be lethal - at 100mg per pill.
188 ecstasy pills for a lethal dose at 125mg per pill.
33 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 (325 * 72.5 (body weight in KG)) / 125 = 188.5
3 325 = mg/kg = lethal dose of MDMA
4 72.5kg=160 pound (typical body weight)
5 125 = mg per pill.
6 188.5 = total pills in a lethal dose assuming 125mg MDMA per pill.
7 235.6 = total MDMA pills in a lethal dose at 100mg per pill (identical to caffeine)
MDMA related deaths are not due to overdose as the prosecution claims.
MDMA is not addictive. This makes it have little to no abuse potential in the clinical sense
11 of “drug abuse.”
13 You are more likely to be murdered than die from illicit drug use.
14 Illicit drug use deaths also include deaths from taking legal drugs in a manner other than as
17 You are more likely (by a measure of nearly 10) to die from "adverse effects" of legally
prescribed drugs in normal doses (106, 000 deaths/year) than you are from ANY illicit drug use
(including DUI accidents, overdoses, etc...)(see)
Ecstasy REDUCES "actual crime" i.e. crimes with victims, by about 50% with just one use
21 per year.
22 Young men who didn't use 'ecstasy' in the past year were 36% more likely to have been
23 arrested for a crime than those who had used the drug. Among those who had been arrested, those
without a history of 'ecstasy' use were 42% more likely to have committed assault, 58% more likely to
have committed robbery, and 67% more likely to have committed burglary.
MDMA does not produce rampant increases in core body temperature resulting in
27 hyperthermia related death. 
28 MDMA is currently safely being used by MAPS to treat PTSD successfully in just 5 doses
(Average cost ~$20 over the course of a year), with much more noticeable results than Zoloft (daily,
34 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 permanently prescribed - average cost of ~$300 per month), currently the only prescribed medication
2 for PTSD. MDMA has been established to be safe in a clinical environment, non-toxic in
therapeutic or recreational doses, non-addictive, promote empathy (caring nature towards others),
and create a lingering happiness and peace in those treated. 
MDMA reduces rates of depression by around 28% compared to non-users, data does not
5 support the concern that incidental ecstasy use leads to extensive axonal(brain) damage. 
6 MDMA risks are exaggerated by government officials in an attempt to instill fear in the
7 people creating support of prohibition in defiance of scientific research (terrorism) 
8 The DEA was told twice by Administrative Judge Young that MDMA could not legally be
placed higher than schedule III, but administrator Lawn ignored these rulings and the scientific
community, as well as the medical community that requested to continue using it in their practices
10 (medical use precludes Schedule I status) 
11 An in depth study of the actual harms caused by drug abuse has been done in the UK. The
12 study shows that MDMA is the least dangerous of all scheduled drugs, and is much safer than
Alcohol or tobacco. 
MDMA is not Scheduled in California.
17 Prohibition without the elimination of public demand creates a government sanctioned black
market and artificial monopoly on an unregulated supply. There is no quality assurance, no police
enforcement against theft, debt collection, or other disputes.
This unpoliced, unregulated market leads directly to gang related violence, violent retribution
20 where no civil relief may be found.
21 The idea that one may be criminally in possession of one’s own property leads to police raids
22 on innocent people resulting in hundreds of deaths each year.
23 Regulation of these controlled substances would ensure a police presence and eliminate “drug
induced” crime, ensure clean supplies of known quality and potency, and reduce the unnecessary
deaths and risks that the laws cause.
The surest way to endanger society is to break up parties because of suspected drug use
26 placing drivers in the position to choose between driving intoxicated or being arrested.
27 The majority of all illicit drug related deaths are because of the drug laws, not the drugs
28 themselves; seeking treatment for overdoses of others will land you in prison for contributing to the
overdose, or under conspiracy charges, just for knowing that the person was using drugs. This means
35 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 that drug users will not rely upon the safety and emergency services that could prevent deaths. 
3 ARGUMENTS/MEMORANDUM OF AUTHORITIES
A. Origin of Rights
5 The founding documents of our nation, both the Declaration of Independence and the
6 Constitution, provide for rights that are pre-existent to the creation of the government, that are
unalienable, and cannot be breached without consent, compensation, or due process of law.
"We hold these truths to be self-evident, that all men are created
8 equal, that they are endowed by their Creator with certain unalienable
9 Rights, that among these are Life, Liberty and the pursuit of Happiness. —
That to secure these rights, Governments are instituted among Men, deriving
their just powers from the consent of the governed..." Declaration of
It may be argued that the Declaration of Independence has no legal bearing, and I use it only
to reiterate a point. Caselaw also prescribes for the protection of man’s unalienable rights, not their
14 creation by the government;
“Surely the matters in which the public has the most interest are
the supplies of food and clothing; yet can it be that by reason of this interest
17 the state may fix the price at which the butcher must sell his meat, or the
18 vendor of boots and shoes his goods? Men are endowed by their Creator
with certain unalienable rights,-'life, liberty, and the pursuit of
happiness;' and to 'secure,' not grant or create, these rights,
20 governments are instituted.”
In a continuance of this ruling, it is established that no man’s property may be taken without
due compensation, so long as he does not injure his neighbor with its use,
24 “That property which a man has honestly acquired he retains
full control of, subject to these limitations: First, that he shall not use it
to his neighbor's injury, and that does not mean that he must use it for
26 his neighbor's benefit; second, that if the devotes it to a public use, he
27 gives to the public a right to control that use; and third, that whenver the
public needs require, the public may take it upon payment of due
compensation.” BUDD v. PEOPLE OF STATE OF NEW YORK, 143
U.S. 517 (1892)
36 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 I find it contemptible that the prosecution claims Congress may deprive a man of his
2 RIGHT to possess his private property, then deprive that man of his property should he choose to
possess it because of his ownership thereof. This injury, suffered by all people of this nation, is an
injury of fundamental right, not merely the loss of one’s property, but the loss of one’s basic
5 If congress indeed possesses this authority, there is no protection from the majority opinion
or whim of Congress. If one’s right to property can be revoked with the stroke of a pen, because of
some perceived benefit to the state, what is to prevent Congress from striking down one’s right to
7 life with the same pen for the same vague reasons?
There is no contention of theft nor of property being seized without compensation in this
case while speaking strictly of myself and my involvement with the prosecution and its agents.
10 There is only the contention that I possessed something to which the government had a higher claim
11 than myself. As the government consented to contract with me, compensate me for handing over
ownership rights of the property itself, I do not understand their allegation that I possessed the
property without their permission, prior to the right of possession through ownership being handed,
13 through consensual contract, to them.
No injury from my possession or distribution is specified nor alleged to my knowledge. I am
still seeking the presentation of a plaintiff with standing in this case.
16 The property in question was not given for public use, and the public may make no claim
17 over it. As such, the government has no intrinsic right to control the property in question; no claim
against its possession or manner of distribution.
No man, nor group, may choose to waive the rights of another. The prosecution claims that
19 a majority vote of Congress chose to waive my property rights, converting them into mere privileges
20 to be granted or revoked at whim. This is a false claim against my rights.
The 9th amendment makes it abundantly clear than rights are not enumerated.
22 “The enumeration in the Constitution, of certain rights shall not
23 be construed to deny or disparage others retained by the people.” U.S.
Constitution, 9th Amendment
25 And yet the prosecution claims that I have no “fundamental right” to possess property
26 which I came by through mutual consent and honest exchange of my property for the property of
Property rights are held to be sacred and unalienable, as one without the right to possess or
28 own property is nothing but property himself; a slave, incapable of pursuing happiness for himself.
37 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 The allegations that MDMA is not property are preposterous, as is the allegation that I may
2 not contract freely and consensually with my private property with another adult. The
prosecution’s claim that dispensing of one’s private property is not equal to mere possession lacks
merit, as property rights include the right to dispose of one’s property as they see fit.
5 “All things are not the subject of property the sea, the air, and the like,
cannot be appropriated; every one may enjoy them, but he has no exclusive
right in them. When things are fully our own, or when all others are
7 excluded from meddling with them, or from interfering about them, it is
8 plain that no person besides the proprietor, who has this exclusive right,
can have any, claim either to use them, or to hinder him from disposing
of them as, he pleases; so that property, considered as an exclusive right
10 to things, contains not only a right to use those things, but a right to
11 dispose of them, either by exchanging them for other things, or by giving
them away to any other person, without any consideration, or even
throwing them away. Rutherf. Inst. 20; Domat, liv. prel. tit. 3; Poth. Des
13 Choses; 18 Vin. Ab. 63; 7 Com. Dig. 175; Com. Dig. Biens. See also 2 B. &
14 C. 281; S. C. 9 E. C. L. R. 87; 3 D. & R. 394; 9 B. & C. 396; S. C. 17 E. C.
L. R. 404; 1 C. & M. 39; 4 Call, 472; 18 Ves. 193; 6 Bing. 630.”
17 Rights exist in an unchecked manner until the rights of another are violated without their
consent (Constitutional Common Law).
19 “To gain standing to bring an action, a plaintiff must allege
20 a distinct and palpable injury. Warth v. Seldin, 422 U.S. 490,
501.” Sears v. Hull, 961 P.2d 1013, 1017 (1998).
22 Unless the rights of another are violated, no standing exists, and no court at any level has
23 jurisdiction to hear such a case or controversy.
"In essence the question of standing is whether the
25 litigant is entitled to have the court decide the merits of the dispute
26 or of particular issues. Standing doctrine embraces... the general
prohibition on a litigant's raising another person's legal rights,
the rule barring adjudication of generalized grievances more
28 appropriately addressed in the representative branches, and the
requirement that a plaintiff's complaint fall within the zone of
38 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 interests protected by the law invoked. The requirement of
2 standing, however, has a core component derived directly from
the Constitution. A plaintiff must allege personal injury fairly
traceable to defendant’s allegedly unlawful conduct and likely to
4 be redressed by the requested relief." Allen v. Wright, 468 U.S.
5 737 (1984)
A further reading of Allen V. Wright will reveal that the loss or harm suffered by the
7 plaintiff must be specific and actual, not hypothetical nor conjectural.
8 The claim that the possession of MDMA leads to an “affect” on “interstate commerce” is
both hypothetical and conjectural, and extremely vague and abstract. It does not define a harm or
loss, nor does it even claim that the affect is necessarily negative.
10 No relief can be granted to Interstate Commerce as it is an abstract idea, not an entity with
“the Constitutional component of standing doctrine
incorporates concepts concededly not susceptible of precise
13 definition. The injury alleged must be, for example, "‘distinct
14 and palpable,'" Gladstone, Realtors v. Village of Bellwood, 441
U.S. 91, 100 (1979) (quoting Warth v. Seldin, supra, at 501), and
not "abstract" or "conjectural" or "hypothetical," Los Angeles v.
16 Lyons, 461 U.S. 95, 101-102 (1983); O'Shea v. Littleton, 414 U.S.
17 488, 494 (1974). The injury must be "fairly" traceable to the
challenged action, and relief from the injury must be "likely" to
follow from a favorable decision. See Simon v. Eastern Kentucky
19 Welfare Rights Org., 426 U.S. at 38, 41.”
I might also point out that the invisible injury, as claimed by the prosecution, is held to be
suffered by the public. To rule in favor of the prosecution in this case will place a further burden
22 on society, those making the claim via the prosecutor, as well as all trade, intrastate, interstate,
23 and foreign, as the cost to taxpayers will be increased $85,000-$90,000 per year in order to
compensate for my imprisonment.
If society is to be punished for creating a demand in the delivery of a product the
25 government does not believe to be property, a ruling in favor of the prosecution is required. If
26 society is NOT on trial here, I cannot see how relief is likely to be granted by ruling in favor of the
prosecution, as the “relief” only places a further burden upon the society the prosecution claims to
be protecting; a society to which no actual harm is alleged from in the case of the prosecution.
39 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 A ruling in favor of the prosecution may be a moot issue, as without standing, the
2 prosecution fails to raise jurisdiction of the court.
"Lack of standing is a potential jurisdictional defect, which
may not be waived and may be raised at any stage of the
4 proceedings, even sua sponte by the appellate court." Gunaji v.
5 Macias, 31 P.3d 1008.
"Standing is an aspect of subject matter jurisdiction."
7 Transcontinental Gas Line Corp. v. Calco Enterprises, 511 S.E.2d
"Standing is an aspect of justiciability which may not be
10 waived." Strank v. Public Employees Retirement Board, 108 P.3d
The people may not hold a claim against the government without personal injury or loss in
13 violation of the individual’s rights. The raising of 3rd party rights is prohibited to every American.
14 The government should be held to the same standard, especially when the rights being raised are
hypothetical rights of society, mere allegations of conjectural harm to a collective group of
individuals who are each capable of raising their own rights should they, indeed be harmed by
16 another’s actions. If society were to file a complain
17 Congress has no enumerated power to create rights. As such, the concept of statutory
standing, raised by the prosecution on January 11th at the last hearing before this court, is in
conflict with the Constitution.
19 Case law also nullifies such a claim;
“Standing in no way depends on the merits of the
plaintiff’s contention that particular conduct is illegal.”
22 Watkins v. Resorts Intern. Hotel & Casino, 591 A.2d 592, 601
23 (N.J. 1991).
I do not have the “right” to prohibit you from contracting with your private property.
25 I do not have the “right” to gather a group of like minded men to prohibit you from
26 contracting with your private property.
I do not have the “right” to restrain your from using your private property so long as I am
not injured from its use.
40 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 Neither do you possess similar “rights” to restrict nor prohibit my private conduct.
2 Neither can you pass a power you do not retain yourself onto another (grant such authority to
5 B. Powers Of Congress/Government
(1) the government was established/instituted for one purpose i.e., to secure/protect rights;
“Men are endowed by their Creator with certain unalienable
7 rights,-'life, liberty, and the pursuit of happiness;' and to 'secure,'
8 not grant or create, these rights, governments are instituted.”
BUDD v. PEOPLE OF STATE OF NEW YORK, 143 U.S. 517
11 (2) the courts being a part of the government have the same singular purpose i.e., to
(3) the courts' jurisdiction has one purpose i.e., to secure/protect rights;
13 (4) Standing to invoke a court's jurisdiction requires the allegation a right is being violated.
"An analysis of standing begins with a determination of
whether the party seeking relief has sustained an injury (see Society
16 of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 772-773, 570
17 N.Y.S.2d 778, 573 N.E.2d 1043 )." Mahoney v. Pataki, 772
N.E.2d 1118, 1122 (N.Y. 2002).
19 “We examined, accordingly, the substance of the plaintiff’s
20 Constitutional and civil rights claims, concluding that they
implicated no legally protected right under the Constitution. We
affirmed, therefore, the trial court’s dismissal both on lack of
22 standing and on the merits.” Daye v. State, 769 A.2d 630, 633 (Vt.
“To satisfy the standing requirement, a plaintiff must show
25 (1) injury-in-fact, (2) causation, and (3) redressibility; thus, the
26 plaintiff must allege a personal injury traceable to the defendant’s
conduct that the court can remedy…” Brigham v. State, 889 A.2d
41 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 “Component parts of every crime are the occurrence of a
2 specific kind of injury or loss, somebody’s criminality as source of
the loss, and the accused’s identity as the doer of the crime; the first
two elements are what constitutes the concept of “corpus delecti.”
4 U.S. v. Shunk, 881 F.2d 917, 919 C.A. 10 (Utah).
5 (5) No rights are alleged to have been violated by my consensual acts.
As found in the Constitution, the government has only enumerated powers derived from the
7 RIGHTS of the people.
“WHEREAS the powers granted under the proposed
Constitution are the gift of the people, and every power not granted
10 thereby, remains with them, and at their will; No right therefore of
11 any denomination, can be cancelled, abridged, restrained or
modified by the Congress, by the Senate or House of Representatives,
acting in any capacity, by the President, or any department or officer of
13 the United States” Continental Congress WEDNESDAY, the 25th of
14 JUNE, 1788.
As I do not have the right to prohibit another from entering into a consensual contract with
a 3 party,
17 As I do not have the right to get together a group and prohibit another from entering into a
consensual contract with a 3rd party,
As any majority group does not have the right to deprive a minority group of their rights,
We, as a people, cannot collectively give this authority to Congress, as it is not a power
inherent in ourselves, nor in a majority group. No such authority exists for us to grant to
22 Congress, and Congress has no inherent RIGHTS by which they may make such a claim.
The prosecution ignores this argument by making the claim that it is Constitutional for
25 Congress to divert its interests and hand certain powers over to others, in this particular case, the
26 ability to amend the CSA and schedule other substances. Congress itself cannot possess such
authority, so the Constitutionality of congress passing on such authority is moot. Congress cannot
pass on powers which it, itself cannot possess.
42 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 The enumerated powers are a list of specific responsibilities found in Article 1 Section 8 of
2 the United States Constitution, which enumerate the authority granted to the United States
Congress. Congress may exercise only those powers that are stated in the Constitution, limited by
the Bill of Rights and the other protections found in the Constitutional text.
5 The Constitution creates a Federal Government of enumerated powers. See U.S.
Const., Art. I, 8. As James Madison wrote, "[t]he powers delegated by the proposed
Constitution to the federal government are few and defined. Those which are to remain in
7 the State governments are numerous and indefinite." The Federalist No. 45, pp. 292-293 (C.
8 Rossiter ed. 1961). This Constitutionally mandated division of authority "was adopted by
the Framers to ensure protection of our fundamental liberties." U.S. v. Lopez 14 U.S. 549
11 While Congress may indeed regulate interstate commerce, they may not, by any means,
deprive any individual of their rights of property and contract without due process of law.
13 “No person shall be held to answer for a capital, or otherwise
14 infamous crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or in the
Militia, when in actual service in time of War or public danger; nor
16 shall any person be subject for the same offence to be twice put in
17 jeopardy of life or limb; nor shall be compelled in any criminal case to
be a witness against himself, nor be deprived of life, liberty, or
property, without due process of law; nor shall private property be
19 taken for public use, without just compensation.” 5th Amendment
20 “...The commerce power "is the power to regulate; that is, to
21 prescribe the rule by which commerce is to be governed. This power,
like all others vested in Congress, is complete in itself, may be exercised
to its utmost extent, and acknowledges no limitations, other than are
23 prescribed in the Constitution.” U.S. v. Lopez 14 U.S. 549 (1995)
25 "Mere legislative fiat may not take the place of fact in the
determination of issues involving life, liberty and property. Manley
v. State of Georgia, 279 U.S. 1, 49 S.Ct. 215, 73 L.Ed. 575...The
27 ultimate fact to be established here, is illegal possession of a gun.
28 The fact proven would be merely the legislative presumption. There
would be no actual proof...Under our law the corpus delecti must be
43 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 proved; here it is presumed...The Legislature has no power to
2 declare one guilty of a crime; that is the function of the court after due
proof. It is Unconstitutional for the Legislature to presume the guilt
of the accused. Under this section there is nothing against which to
4 defend, because no crime has been proved." People v. Pinder, 9
5 N.Y.S.2d 311, 310-311.
The claim that my exercise of these rights was lawfully suspended when I was the age of 4,
7 because of a 16 word clause in the Constitution which the prosecution and activist judges have in
8 the passed interpreted to be excluded from all Constitutional restrictions on congressional power, is
frivolous and invalid pursuant to this ruling;
10 "If there be any conflict between these two provisions, the one found
11 in the Amendments must control, under the well-understood rule that the
last expression of the will of the lawmaker prevails over an earlier one."
Schick vs United States [(1904) 195 US 65, 49 L.Ed. 99, 24 S. Ct. 826
14 The opinion of the court in Schick is expanded to reiterate their reasoning why no power
granted in the articles of the Constitution may Supersede any rights protected by the amendments;
the last expression of the will of the lawmaker prevails over an earlier one.
16 The prosecution’s claim that the “Necessary and proper” clause or the “Interstate Commerce
17 Clause” create the power of Congress to violate the 5th Amendment with impunity fails under the
19 “...The commerce power "is the power to regulate; that is, to prescribe
20 the rule by which commerce is to be governed. This power, like all others vested
in Congress, is complete in itself, may be exercised to its utmost extent, and
acknowledges no limitations, other than are prescribed in the Constitution.
22 “...When cases involving these laws first reached this Court, we
23 imported from our negative Commerce Clause cases the approach that
Congress could not regulate activities such as "production,"
"manufacturing," and "mining." See, e.g., United States v. E. C. Knight Co.,
25 156 U.S. 1, 12 (1895)” U.S. v. Lopez 14 U.S. 549 (1995)
I would like to make a quick comment that in violation of U.S. v. Knight Co. The CSA
claims to prohibit both the production and manufacture of products.
28 If U.S. v. Lopez does provide for the CSA’s existence, nearly 20 years of Unconstitutional
oppression arose from this statute, and the courts have unceremoniously justified this criminal
44 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 usurpation of the rights of the common man through what may be attributed to frustration, not
2 judicial enquiry and enforcement of the Constitutional protections as required by their oaths of
4 In order for my rights to possess my private property to have been abridged, there must be
5 due process of law. An act of congress does not stand as due process.
“Those terms ‘law of the land’ (meaning “due process of
7 law”) do not mean merely an act of the General Assembly
8 (congress). If they did, every restriction upon the legislative
authority would be at once abrogated. For what more can a citizen
suffer, than to be “taken, imprisoned, disseized of his freehold,
10 liberties, and privileges; be outlawed, exiled, and destroyed; and be
11 deprived of his property, his liberty and his life,” without crime? …
In reference to the infliction of punishment and divesting of the rights
of property, it has been repeatedly held in this state and it is believed,
13 in every other of the Union, that there are limitations upon the
14 legislative power, notwithstanding those words; and that the
clause itself means that such legislative acts, as profess in
themselves directly to punish persons or deprive the citizen of his
16 property, without trial and before judicial tribunals, and a
17 decision upon the matter of right, as determined by the laws under
which it vested, according to the course, mode and usages of the
common law as derived from our forefathers, are not effectually
19 “laws of the land” for those purposes…
20 The sole inquiry that remains is whether the office of which
the Act deprives… (office = object in question) is property. It is
scarcely possible to make the proposition clearer to a plain mind,
22 accustomed to regard things according to practical results and
23 realities, than by barely stating it. For what is property; that is, what
do we understand by the term? It means, in reference to the thing,
whatever a person can possess and enjoy by his right; and in
25 reference to the person, he who has the right to the exclusion of
26 others, is said to have the property.”Hoke v Henderson 15 N.C. 1
17 25 Am Dec 677
28 If that which I bought with the fruits of my labor is NOT my property, as the prosecution
would have us believe, what is it? By what power of due process were the fruits of my labor, my time,
45 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 talents, and efforts converted into barter currency, then traded for goods which I came to own without
2 question or challenge...
At what point did my property fail to be my property and become the ward of the state, which
I am being tried for possessing without their consent? At what point did my rights convert into
4 privileges by which I must attain consent (license) from the government in order to exercise them?
It is also not unreasonable to take the position that Congress may only prescribe punishments
7 for activities which severely affect Interstate commerce in a negative manner, not prohibit
8 interstate commerce itself, as to do so is not regulation but de-regulation of interstate
Congress is tasked with the regulation of interstate commerce. Prohibition is de-
10 regulation and requires a Constitutional amendment (see the 18th and 21st amendments) in
11 order to take effect.
The Controlled substances Act is an attempt of Congress to shirk their responsibility to
regulate commerce by turning it over to a black/unregulated/unpoliced market, thus
13 endorsing the allegedly “criminal” industry Congress itself, through a fraudulent claim by
14 which they state they will stamp out such commerce with force, threats of force, robbery, and
extortion in violation of U.S. code section 1951. Congress has created a criminal racket by
Unconstitutionally forgoing its responsibilities and creating laws by which the state may
16 commit crimes against the people for exercising their rights and freedoms.
C. Argument of Disputes
1. Prohibition of The Exercise of Property Rights is Unconstitutional.
19 The cases cited by the prosecution in its opposition did not rule upon the validity of the
20 laws of prohibition, but only ruled upon the scope of their ability to be enforced.
The prosecution claims that the upholding of the broad reach of a law is upholding the law
itself, and this is simply not true. The judiciary is known to rule upon the smallest aspects of all
22 cases coming before it and rarely over rules a law unless it has no other avenue for remedy.
23 Their continued contention that Prohibition in a lucrative and established interstate market
is a reasonable regulatory measure is ludicrous. Prohibition is not a power of Congress, as it
deprives the individual of his rights of property, and this can only be done through due process of
25 law; either a criminal conviction or a Constitutional Amendment such as the 18th. As neither
26 exists here, the attempt to obstruct commerce through the use of threatened force and violence is
nothing more than organized crime under section 1951, and the RICO act.
These laws establish nothing other than a criminal deprivation of the rights of the
28 citizenry, and a criminal corrupt organization seeking to monopolize on these products to a
furtherance of it’s own agenda.
46 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 The purpose of the courts is to balance the powers of the legislature and ensure they do not
2 trample upon the rights of the individuals. The prosecution’s claim that I must address the
criminals seeking to deprive me of my rights in request of relief of these rights is ludicrous. The
powers of the federal government were separated so that each branch could hold the others in
4 check, not to wave matters away and force the citizenry to petition the branch which is wronging
5 them for relief.
As is shown above in case law, property and contract rights are unalienable, and
insurmountable to the limited, privileged powers of Congress. They are not granted by the State
7 Constitutions, nor the U.S. Constitution. They are pre-existent to the government and may not be
8 taken through any privileged power granted to the government though the Constitution.
Any attempt to deprive the people of their rights of property or contract are criminal
attempts upon the people and must be void for Unconstitutionality. As was ruled in Lopez, the
10 limits to the powers of Congress’s ability to regulate commerce are established by the
“...The commerce power "is the power to regulate; that is, to
prescribe the rule by which commerce is to be governed. This
13 power, like all others vested in Congress, is complete in itself, may
14 be exercised to its utmost extent, and acknowledges no limitations,
other than are prescribed in the Constitution.
“...When cases involving these laws first reached this Court,
16 we imported from our negative Commerce Clause cases the
17 approach that Congress could not regulate activities such as
"production," "manufacturing," and "mining." See, e.g., United
States v. E. C. Knight Co., 156 U.S. 1, 12 (1895)” U.S. v. Lopez 14
19 U.S. 549 (1995)
Basic rights were the reason for the ruling in States v. E.C. Knight Co. Production and
manufacturing were the exercise of property rights, pre-existent to commerce. Prohibition deprives
22 the citizenry of their basic fundamental property rights. As such, it is not a legitimate use of
Prohibition cannot be equal to regulation, as regulation assumes that a commodity is already
entered into commerce, and the obstruction of this commerce through prohibition is to deprive
25 customers of their property regardless of commerce. It also inhibits customers from receiving orders,
26 and penalizes distributers for doing nothing more than providing voluntary services to their
customers. There is no core criminal element. Commercial activity is not criminal in our capitalistic
society. Grievances of customers must be taken up in civil courts, not brought by the state on behalf
28 of a people who may or may not even be customers of the supplier. This is an attempt to raise
unconcerned 3rd party rights that have not been violated, other than hypothetically and conjecturally.
47 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 The only criminality here rests in the acts of terrorism carried out by the State in an attempt
2 to control the actions of a free people, and deny them the free exercise of their rights without due
process or Constitutional Amendment.
4 2. Congress May not Delegate Authorities it does not have.
5 If Congress may not prohibit the possession of one’s private property, Congress cannot
bestow this authority upon a lesser agency.
Congress cannot possess this power as it is not within the scope of the rights of the people
7 from which Congress derives its lawful authorities. As such, this authority does not exist, and any
8 claim to it under color of official right is criminal under numerous state and federal statutes. No
lawful authority can permit the commission of crimes.
The statutes cited attempt to grant Federal Agents the ability to commit robbery and
10 extortion against the citizenry because the citizen has chosen to exercise his immutable rights of
11 property and contract. No such authority is lawful, Constitutional, nor just, as it is purely criminal in
nature and fact.
I also do not call into question Congress’s ability to delegate it’s powers, but challenge that
13 the scheduling of MDMA was not done legally, using both rulings of Administrative Judge Young
14 against the DEA in its effort to place MDMA into schedule I. Judge Young claimed the DEA could
not legally do so, yet they did so anyway.
Administrator Lawn rejected the court’s opinion and placed MDMA into Schedule I
16 anyway. The court then reversed this action.
17 Without further Adjudication, Administrator Lawn re-instated MDMA into Schedule I
Congress may delegate its authorities, but must keep a watchful eye on those delegated with
19 such authority, especially when the agencies receiving the authority to create laws are also those
20 responsible for enforcing them, and profiting from the seizures made under the laws they make.
22 3. Statute is Void for Vagueness
23 As stated by the prosecution, a statute is void for vagueness if it is worded so as to be
enforced arbitrarily. I do not know if the fault lies with the statute itself or if it merely being
arbitrarily enforced due to some hidden agenda.
25 The prosecution admittedly has shown bias in its enforcement of these statutes in this case
26 alone, rendering the actions against me in violation of the Equal Protection clause.
4. Amendments Supersede Grants of Authority
28 Any attempt to violate the Amendments to further a cause of the state is clearly
Unconstitutional, invalid, and void ab initio.
48 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 No power granted to the government in the Constitution may overcome the prohibitions of
2 their exercise expressed in the amendments.
Our society is based upon the concept of individual liberty and personal rights. Again, I
believe the prosecution fails to grasp the difference between a right and a privilege and for examples I
4 request the court and prosecution review the videos at http://revolutioni.st/liberty.html and
The prosecution continues to pursue a collectivist agenda while undermining my rights, the
rights of my co-defendants, and claims that the Constitution enables these collectivist ideas to be put
7 into practice in spite of the Amendments.
8 It’s position is clearly flawed as the Amendments must control the authorities granted in the
If there be any conflict between these two provisions, the
10 one found in the Amendments must control, under the
11 well-understood rule that the last expression of the will of the
lawmaker prevails over an earlier one." Schick vs United States
[(1904) 195 US 65, 49 L.Ed. 99, 24 S. Ct. 826
14 5. Possession and Distribution are Inherent Property Rights
The prosecution makes no claims that I was in possession of stolen, or unlawfully acquired
property. They claim only that my possession and intent to distribute my property were criminal.
16 They produce no evidence of wrong-doing. They produce no criminal element. They
17 produce no party with standing.
Their only claim is that the fundamental rights of property may be altered by Congress to
preclude their exercise entirely.
19 Such a position cannot be upheld under our rigid Constitution, as these rights are
20 fundamental and protected, as ruled;
“That property which a man has honestly acquired he
retains full control of, subject to these limitations: First, that he
22 shall not use it to his neighbor's injury, and that does not
23 mean that he must use it for his neighbor's benefit; second, that
if the devotes it to a public use, he gives to the public a right to
control that use; and third, that whenever the public needs
25 require, the public may take it upon payment of due
26 compensation.” BUDD v. PEOPLE OF STATE OF NEW
YORK, 143 U.S. 517 (1892)
It is reasonable to claim that the agents of the state did require my property
28 and did compensate me for it. That is permissible. Persecuting me for owning
49 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 property that they desired, after consenting to give it to them for compensation is
2 not reasonable.
4 6. Controlled Substances Act is Void ab Initio
5 It can only be concluded that any act seeking to deprive the citizenry of their fundamental
rights in an effort to afford them a safety of some kind is a criminal encroachment upon the very
rights the government is sworn to protect.
7 The claims that a collectivist “greater good” may deem it necessary for the government to slip
8 the confines of the Constitutional restrictions of their powers is irresponsible, unconstitutional, and
does not deserve a response.
Collectivism is forbidden under the Constitution, and it is not just the CSA that is in violation
10 of these protections. All malum prohibitum crime is an affront to our personal liberty. There can be
11 no greater purpose that of the assurance that the rights of every citizen remain firm no matter the
endless number of attempts of the government to dispose of those rights in order to make a collective
group perceive itself to be better off.
13 Only in a truly free society, where one’s actions are decided solely based upon his own
14 decisions, past experiences, and abilities, so long as he does not impose upon the rights of anther or
attempt to deprive them of their own personal decisions, can anyone have the freedom promised
under our Constitution.
16 To deprive another of their fundamental rights of property and decision making is an act of
Congress has no power to create slaves, and the CSA and other malum prohibitum crimes
prescribe for the enslavement of the American people who must obey the will of Congress who
19 proclaims itself above their rights, in possession of all authority of decision making for every person
20 in this country under threat of violent force.
The CSA is legislated terrorism, confining the minds of the people to a strict adherence to an
imposed moral code that serves no further state interest than to control the will of the people,
22 ensuring its continued dominance over their lives.
23 Any such enactment is criminal in nature, Unconstitutional in breadth and purpose, and has
no lawful authority over anyone. Any charges raised under such an enactment are criminal acts of
the individuals purporting to carry out the will of the legislature.
25 When such a law comes into existence it is the duty of each individual to disobey such a law,
26 refuse its enforcement, and to rebel against its restraints.
“Individuals have international duties which transcend
the national obligations of obedience... Therefore citizens have
28 the duty to violate domestic laws to prevent crimes against peace
and humanity.” Nuremberg War Crimes Tribunal, 1950
50 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
2 7. Protecting Society is not Justification for Criminal Acts
The rulings cited above make it clear that at no time may Congress overstep
the Amendments in an effort to further some state interest.
4 The purpose of government is clear, to protect the rights of the individual free
5 citizens. There is no other state interest. Whenever a government becomes destructive
of these rights it is the duty of the people to abolish the government that infringes upon
their liberties and rights.
7 The prosecution claims I am to appeal to the legislature to resolve the dispute
8 between their enactments and my rights. The prosecution claims the courts refuse to
resolve this dispute and refer the citizenry back to the legislature to seek relief from the
10 It is not the CSA with which I take offense, it is the entirety of the unrestrained
11 government that disrespects its citizens, violates their rights, threatens and intimidates
the citizenry so that they no longer attempt to exercise their rights out of fear, and
claims that its citizens are the freest on this earth while keeping them from making
13 decisions based upon their own research and knowledge in their pursuit of happiness.
14 If this nation has truly sunk to the level where one’s rights are arbitrarily
disposed of by their government and all manner of recourse for offenses committed by
the government have been cut off, then it is not time to be arguing over the trivilities of
16 the CSA, but is the proper time to throw off our oppressive government and reclaim
17 our liberties.
“We hold these truths to be self-evident, that all
men are created equal, that they are endowed by their
19 Creator with certain unalienable Rights, that among these
20 are Life, Liberty and the pursuit of Happiness. — That to
secure these rights, Governments are instituted among
Men, deriving their just powers from the consent of the
22 governed, — That whenever any Form of Government
23 becomes destructive of these ends, it is the Right of the
People to alter or to abolish it, and to institute new
Government, laying its foundation on such principles and
25 organizing its powers in such form, as to them shall seem
26 most likely to effect their Safety and Happiness.”
Declaration of Independence
8. No Corpus Delicti, No Standing, No Plaintiff, No Crime
51 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 I have requested time and again for the prosecution to show me what harm my
2 actions have cause and have not once received an answer.
If I have indeed committed a crime there will be a party with standing which
can show a distinct and palpable loss or injury. If the prosecution presents such a
4 party I will vacate this motion and face the consequences of my criminal acts.
5 If no party exists or cannot be produced, under the Constitution I have not
committed a crime and I will continue to pursue a dismissal of these frivolous
8 9. Woes of Society
Society has no greater rights than those of the individual. The purpose of the
Amendments was to ensure that no minority, down to a single individual, would be
10 deprived of his rights without his having violated the rights of another.
11 Congress may not legislate away things to which one takes offense, or they
could legislate religion out of the country as well as private property.
Ultimately there is no difference; as the rights of property and personal belief
13 are held to be unalienable and are immune to degradation by the legislature without
14 Constitutional amendments.
The prosecution’s list of societal distraught are based on outdated data, a
strong desire to remain ignorant of the harms of prohibition, which remain clouded by
16 emotion today but are historically present because of alcohol prohibition in the 1920s.
17 No societal woes befallen from the use of MDMA can justify the criminal
onslaught of our liberties, dehumanizing of people exercising their rights of personal
liberty and property, armed robbery, and extortion being committed by the state or its
20 Law enforcement officers have risen up to disband prohibition for being
ineffective and morally corrupt.
Those seeing the affects of the laws desire to dismantle these laws in order to
22 prevent the societal woes they impose.
23 If the state is to choose its own criminal actions over the rights of the citizenry,
knowing there will be risks and consequences either way, we, as a society cannot claim
to be free, nor claim a legitimate governmental authority existent by grant of
25 consensual privilege through the Constitution.
10. No Plaintiff, No Jurisdiction
As the prosecution has failed to present a case for which relief may be granted,
28 failed to allege that a criminal act has taken place, and refuses to present a plaintiff
with standing established by caselaw as having sustained a personal injury or loss due
52 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 to my unlawful acts, then there is no subject matter jurisdiction for this case to even be
The requirement of standing cannot be waived, and is an integral part of the
constitutional grants of authority to the Judiciary. Without standing, without
4 jurisdiction, this court is without authority.
5 Because of the frivolous nature of the prosecution’s claim that the law provides
standing; i.e. establishes rights of Congress that it must be obeyed or the individual will
suffer, I request the court to seriously consider the nature of the issue before it.
7 It is not my desire to seek retribution for the wrongs against me, as personal
8 vendettas will provide no protection for the rights of my countrymen, but I do seek to
have this fictitious claim against me dismissed so that I may affect changes within the
government to protect the rights of my countrymen.
10 I humbly request the court to consider the weight of the prosecution’s
11 argument that Congress’s dictates are to be upheld as orders of a supreme master of an
I cannot envision any way in which such a provision would be Constitutional
13 under the powers of the legislature, but attempting to also waive the standing
14 requirement of the Judiciary by making a claim that Congress has insurmountable
rights to be obeyed strikes down the Constitutional foundations of two branches of the
16 If the prosecution can provide standing in this case and show the distinct and
17 palpable loss or harm suffered by my actions by a plaintiff raising issue with my
actions then I will submit to this court’s decisions and accept the consequences of such
19 Without this party present, I do not understand what charges I am to defend
20 against, as there is no crime of which I am accused.
If I have committed no crime I cannot accept the allegations against me, nor
the jurisdiction of this court, as there is no complaining party.
22 I understand the seriousness of this claim, and remind the court that the
23 burden of proof lay upon the prosecution to provide this party with standing. As the
prosecution have been reluctant, and even refused to do so, I have no choice but to call
the jurisdiction of the court into question.
I have no doubts that the prosecution believes they are upholding the best interests of society,
28 but one cannot protect society by punishing it, or discriminating specifically whom to punish and
whom to endorse in their allegedly criminal conspiracies. If an act is criminal, the state may not
sponsor it nor license its practice.
53 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
1 They have done both in their attempts to suppress my rights, leading me to believe that the
actions themselves are not criminal in nature; it is only in a pursuit to control the minds and actions of
2 the people that the government makes such frivolous claims against the citizenry.
Their allegations and continued actions are nothing more than criminal attempt to control
3 myself, and my countrymen in violation of the Constitutional provisions protecting our unalienable
rights. The prosecution’s arguments would thrive and flourish in a country of subjects; we do not live
4 in such a country. I am not a subject of Congress, nor must I obey their whims should their acts
violate my protected rights.
'The principles laid down in this opinion affect the very essence
6 of Constitutional liberty and security. They reach farther than the
concrete form of the case there before the court, with its adventitious
7 circumstances; they apply to all invasions on the part of the
government and its employee of the sanctities of a man's home and
8 the privacies of life. It is not the breaking of his doors, and the
rummaging of his drawers, that constitutes the essence of the offense;
9 but it is the invasion of his indefeasible right of personal security,
personal liberty and private property, where that right has never been
10 forfeited by his conviction of some public offense-it is the invasion of
this sacred right which underlies and constitutes the essence of Lord
11 Camden's judgment.' U.S. Supreme Court Boyd v. United States, 116
U.S. 616 , 627-630, 6 S. Ct. 524
13 The Boyd case has been recently reaffirmed in Silverthorne Lumber
Co. v. United States, 251 U.S. 385, in Gouled v. United States, 255 U.S. 298,
14 and in Byars v. United States, 273 U.S. 28.
15 As the prosecution claims only the following; that the powers of government are
unrestrained by the amendments; that I have no rights which Congress may not violate at their will,
16 I come to the following conclusions:
1. No due process of law exists as a former conviction of a public exists on my record by
17 which I may have forfeited my rights of property and contract, and;
18 2. No due process of law exists as a Constitutional amendment usurping my rights of
property and contract, and;
19 3. No claim is made by a party with personal standing, and;
4. Congress has no enumerated power to create rights through statute by which the
20 government may claim standing on behalf of society, or some furtherance of governmental power
protected by the creation of such rights, and;
21 5. The rulings of the courts used by the prosecution in defense of his position seek to
undermine the judicial requirement of standing they are Unconstitutional and of negligible weight.
22 6. No crime is alleged to have taken place.
23 7. No jurisdiction exists without a complaining party with standing.
8. The charges against me amount to nothing more than a claim that I exercised my rights of
24 property and contract without permission from the state.
25 For these reasons, and others cited within this document, I request the court dismiss this
alleged claim against me with prejudice.
Michael Eugene Pohlable April 8th, 2008
54 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
5 Table of Authorities
6 Federal Statutes
TITLE 18 > PART I > CHAPTER 13 > § 241. . . . . . . . . . . . . . . . . . . . . . . . 4, 14
8 Title 18 Part 1 Chapter 95 § 1951. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6, 7, 21, 25
TITLE 18 PART I CHAPTER 13 § 242. . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 8, 14
11 Title 42 Chapter 21 Subchapter I Section 1983.. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
13 Federal Cases
Allen v. Wright, 468 U.S. 737 (1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
15 Board of Zoning Appeals V. Decatur Company of Jehovah's Witnesses.. . . . . . . . . 33
Boyd v. United States, 116 U.S. 616 , 627-630, 6 S. Ct. 524 . . . . . . . . . . . . . . . . 47
18 Brigham v. State, 889 A.2d 715.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
BUDD v. PEOPLE OF STATE OF NEW YORK, 143 U.S. 517 (1892).31, 36, 40
Daye v. State, 769 A.2d 630, 633 (Vt. 2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
22 Definition of Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Ex parte James, 836 So2d 813, 871, 872-873.. . . . . . . . . . . . . . . . . . . . . . . . . . . 27
25 Gunaji v. Macias, 31 P.3d 1008.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
26 Hoke v Henderson 15 N.C. 1 17 25 Am Dec 677. . . . . . . . . . . . . . . . . . . . . . . . 45
Jones v. Opelika, 316 U.S. 584, 602.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Kolender v. Lawson, 461 U.S. 352, 357 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . 24
55 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2136 (1992). . . . . . . . . . . . 19, 32
Mahoney v. Pataki, 772 N.E.2d 1118, 1122 (N.Y. 2002). . . . . . . . . . . . . . . . . . 41
4 Mayhew v. Wilder, 46 S.W.3rd 760, 767.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Miller v. US, 230 F 486, at 489.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
7 Olmstead v. United States 277 U.S. 438. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25
8 People v. Pinder, 9 N.Y.S.(2d) 311, 310-311.. . . . . . . . . . . . . . . . . . . 32, 43
. W .d . . .
Petty v. Daimler/Chrysler Corp., 91 S.. . .3 . 765. . . . . . . . . . . . . . . . . . . . . . . . 23
11 Probst V. Board of Education Lands and Funds, DC Neb 103 F. . . . . . . . . . . . 33
Schick vs United States [(1904) 195 US 65, 49 L.Ed. 99, 24 S. Ct. 826]. 29, 32, 43
Sears v. Hull, 961 P.2d 1013, 1017 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 38
15 SHUTTLESWORTH v. BIRMINGHAM (1969) 22 L Ed 2d 162, 394 U.S. 147,
16 89 S Ct 935. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
17 State v. Hill, 221 A.2d 725, 728.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
State v. Klausner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
20 Strank v. Public Employees Retirement Board, 108 P.3d 1058.. . . . . . . . . . . . . 40
Transcontinental Gas Line Corp. v. Calco Enterprises.. . . . . . . . . . . . . . . . . . . 39
23 U.S. v. Lopez 14 U.S. 549 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 44
24 U.S. v. Shunk, 881 F.2d 917, 919 C.A. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 41
Vil. of Arlington Hts. v. Metro Housing Dev., 429 U.S. 252, 262. . . . . . . . 21, 26
27 Watkins v. Resorts Intern. Hotel & Casino, 591 A.2d 592, 601 (N.J. 1991).
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 32,
56 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
2 Fundamental Things/Other Sources
3 Abraham Lincoln. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4 Benjamin Franklin. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Continental Congress WEDNESDAY, the 25th of JUNE, 1788.. . . . . . . . 31, 42
7 Declaration of Independence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36,51
Senate resolution 63 from April 24th,1933. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
[Page 19 Line 18 of Opposition]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
12 U.S. Constitution
9th Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 37
57 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable
Proof of Service
I served the prosecutors whose names are Donald Gaffney and Robert Keenan by email
3 as they requested.. I also served my stand-by counsel by email. I send the email around 3:50pm
4 on 08 April to "John D. Early" <firstname.lastname@example.org>, "Gaffney, Donald (USACAC)"
<Donald.Gaffney@usdoj.gov>, "Keenan, Rob (USACAC)" <Rob.Keenan@usdoj.gov> .
Thereafter today, April 8th, I sent this motion by email to the clerk Kristee Hopkins at
6 Kristee_Hopkins@cacd.uscourts.gov per the request of the court and prosecution that all filing be
7 done electronically.
Signed ______________________ Michael Pohlable. Tuesday April 8th 2008.
58 Surrebuttal #9007SR2 - Demurrer M otion Surrebuttal by Michael Pohlable