AFFI to support Lack-of-Jurisdiction

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        [11-5442cr(L), 12-0231(CON), 12-0389cr(CON)]

         United States Court of Appeals
                      for the   Second Circuit
                      *   *      *    *    *           *   *   *
                                Christian Viertel,

                                                               -Appellant, pro se

                                      -   v.       –

                       UNITED STATES OF AMERICA,

                  *        *         *         *           *       *   *
 Court Amended Nature of Suit: “2440 CIVIL RIGHTS-Other” from the United
   States District Court of the SDNY (JGK) [Case Nr. 01-cr-571/08-civ-7512]


Appellant´s affidavit in supplemental support of VACATUR for jurisdictional
      §1341 void ab ovo and for prima facie adjudicatura ultra vires over
 intercontinental mail deliveries in exportation from the United States by
                      foreign international cargo carriers

                                      TABLE OF CONTENTS

TABLE OF CONTENTS                                                                        2

PRELIMINARY STATEMENT                                                                    3

PROCEDURE                                                                                5

JUSTICE MANAGEMENT                                                                       7

ARGUMENT 1 A, B, C                                                                       8

ARGUMENT 2                                                                               9

ARGUMENT 3                                                                               11

FICTIO STATEMENT                                                                         16

MORE RELEVANT LAW                                                                        16
“On every writ of error or appeal the first and fundamental question is that of jurisdiction, first, of
this court, and then of the court from which the record comes. This question the court is bound to
ask and answer for itself, even when not otherwise suggested and without respect to the relation
of the parties to it.” [emphasis added]. This rule was adopted in Capron v. Van Noorden, 2
Cranch, 126, decided in 1804;

U.S. v. Ford, 03-1774 (2ndCir 2006) (Winter, Katzmann, Raggi):“[R]estraint must be exercised in
defining the breadth of the conduct prohibited by a federal criminal statute”[Op. at 14]

Morrison v. National Australia Bank Ltd., 130 S. Ct. 2869 (2010)

CONCLUSION – FIAT UT PETITUR                                                             18

CERTIFICATION 28 U.S.C. § 1746 (1)                                                       19

CERTIFICATE OF SERVICE                                                                   20

CA2: 12-1967(L) (Doc # 115) by the NY BAR Ass                                    ADDENDUM

                                      Preliminary Statement

         This Affidavit is certified pursuant to 28 U.S.C. § 1746(1) by pro-se-Appellant-

Defendant filed under penalty of perjury without the territory of the United States of


         This action timely1 commenced [NOA D.E. #286] from a 28 U.S.C. §1651 Motion for

VACATUR (DE 281/282) on 4-9-2012. The DENIAL without relevant textual support and

a seriatim DENIAL of a RECONSIDERATION MOTION without relevant textual

support by the Presider in criminal proceeding 01-cr-571 caused this instant action. Both

DENIALS, Appellant submits, were in abuse of discretion, in violation of power-

separation-constraints and were dysfunctional in giving a statute (§1341) the effect its

language suggest, and “not to extend it to admirable purposes it might be used to achieve”,

Justice Scalia to the Second Circuit in Morrison, 130 S. Ct. at 2886, and U.S. v. Ford,

03-1774 (2ndCir 2006)(Winter, Katzmann, Raggi):“[R]estraint must be exercised in

defining the breadth of the conduct prohibited by a federal criminal statute”[Op. at 14]

         Appellant submitted his “genuinely criminal procedural” WRIT OF (structural)

ERROR SEEKING VACATUR AB OV, grounded upon a fundamental challenge to the

District Court’s exercise of subject matter jurisdiction. Congress codified §1341, later

revised §1341 and promulgated explicit interstate strictures criminalizing only those

mailings by protected interstate carriers, which terminate and must logically complete in

another State of the Union after crossing at least one State Lines to qualify.

1   No time limits apply for a presentment of a structural jurisdictional challenge

         INTERNATIONAL or INTERCONTINENTAL borders are excluded from the mail

statute [§1343, the wire statute, included “foreign” due to a “crime-free phone-call” from

Mexico reversal). Here, the substantive international delivery to Germany, that mail

fraud count “3” cannot be gamed to reach jurisdiction [intrinsically obliterating – ipso

frivolous - §§371, 1343 charges for lack of causality, facts and botched theory]. Basically,

this honorable panel is petitioned to review for judicial abuse of discretion as in this ultra

vires act beyond a statute confederated with seriatim appearance of partisanship favoring

the advocacy department of a certain sovereign; [a separate Brady challenge is at core of

proceeding U.S.C.A. 11-5442-cr (L). Also, Co-defendant Blumenberg is believed to be in

appellate pendency under U.S.C.A. 11-3300.]

         Jurists of reason cautioned affiant, that when judicial less-than-authentic denial

arsenal is employed over years it is rarely not grounded upon 1) faulty fact finding

partially harmed by 2) unfairness in Brady disclosure violations2, 3) predilections and 3)

conflicting with the “faithful and impartial discharge” the law commands(28:§453).

         Affiant respectfully submits that earlier rulings, including his direct Appeal [CA2:

03-1364] were wrongly decided based upon faults and errors below and must be reviewed

for vacatur pursuant to lack of jurisdiction ab ovo, trumping “law of a case” methodology.

2   A 2012 act is to be codified, in essence, to finally bring DOJ, which wrongly contends that reform
is unnecessary since there has been “no showing” of the current system’s systemic failure denying
exculpatory evidence to defendants, into line to tiptoe towards democratization.


         Pro se defendants often have no certainty how their submissions are labeled since

Courts – post filing - are to “look behind” the label and to recognize a colorable claim

regardless of procedural obstacles, Haines vs. Kerner, 404 US 519. In the event, that this

panel reviews under the U.S. v. Morgan “coram nobis test”, the defendant submits, that

he surmounts all three test prongs:

      1) the “why not earlier” explanation is a combination of non-resident alien’s

          unfamiliarity with unclear federal domestic laws complicated by more than 1000

          precedents seasoned jurists still charge $5000+ to advise a worried-postal-client.

          The lack of a clear and comprehensive penal code book available for consultation

          at a U.S. embassy or consulate being a book that stands on its own without

          further commentary ado3. The well known problem that aliens generally receive

          inferior, if not sub-Strickland legal advice from practitioners whose livelihood

          depends upon their ability to procure CJA panel assignments and to not anger the

          mighty branch on row 1, but comply4. And the often expressed unwillingness by

          FD/CJA’s to raise fundamental federal powers issues for “just” any always-surely

          deportable alien. And last, even a good part of the American ius academia tip-toes

          around in fear; Judge Andrew Young, i.e., does not, but his Honor is still far from

          retainable by an accused.

3   Defendant’s 28 U.S.C. §1651 ALL WRITS submission to the District Court – DE 281/282/284 –
illustrates that §1341 is repeatedly mutilated by branch II at will, truncated by Main Justice to
deceptively appear actionable (§1341 is neither extraterritorial nor valid under MLAT’s
“comparable law” prong), or is deliberately misquoted to confuse the public and undermine trust.
4   District Courthouse slang: “CJA dump-trucks”

      2) The consequences of the challenged convictions are open-ended, demonstrated by

          an unjustifiable exclusion from visits for private, business reasons, media or

          academic work in the United States (that the verdict’s $8’120 charge, besides its

          frivolousness, is below the $10k administrative ICE removal trigger is

          inconsequential because “judicial preponderance” fixes any shortage), the

          mounting opprobrium, not only from unresolved fraudulent private data entries by

          persons under direct control of plaintiff aggravating the ongoing tort5.

      3) The fundamentality of the error – some willful - cannot be profounder and more

          overt. Adjudications without any statutory jurisdiction over “intercontinental

          mailings” are ultra vires per se, unreachable and should be reviewed for

          sanctionability inter pares.

      Additionally, credibility of a claim of actual innocence rests upon the (low) quality of

the three charges detailing an extreme void of verifiable criminal acts this defendant

could have been accused of.

      What was raised here was all the government could muster, fabricate and bogey, and

it never made sense in the first place, but from the get-go circumnavigating Magistrate

hurdles (no “mj“ docket exists here), branch II was allowed to hand-pick a “procedurist” to

aid in a conviction procurement, sadly, yet another “rare systemic failure”(as the DOJ

calls such events), Appellant submits. Branch II did suddenly noll identical bogus-

quality charges against defendant John Lee, sole U.S. citizen, but pushed harder to

5   ICE HQ deliberately tried deception upon Germany’s public-TV-envoy who pressed my release
from ICE’s-hoosegow, claiming falsely, that VIERTEL “was a predator”, a tape-recorded ruse ICE
(S/A Mark Butterfield) concocted.

“embezzle” two unprotected – less prominently6 lawyered-up - aliens. Stalin’s

Dr.Lavrentiy Pavlov Beria seems Professor J.Weddle’s idol; see his “Aleynikov” trespass,

inter alia, and at the genesis of 01-cr-571. Weddle is on record for the United States until

summer 2002, when he pulled away over internal disputes Lee´s nolle presented and

Blumenberg´s worthless plea endangered (see 11-3300cr). The prosecution team was

effectively polluting the aura of fair play.

                               Justice Management vel non

       Thus, this action concerns inglorious detail of retail “justice” mis-management,
extra-legal Brady scoff7, pretense of bogus macro-economics: “[when] district judges’
factitiousness hinder proper administration of justice” [Green, J. DCDJ]. Here, “Trier´s”
appointment was by sponsors H.E. Daniel Patrick Moynihan, who popularized Baruch’s
‘50ties imperative: “Everyone is entitled to his own opinion, but is not entitled to his own
facts [sic]”, a U.N. ambassador and N.Y. senator lending his good name to the Manhattan
U.S. Court House where the “Presider” chambers and what Moynihan later [mockingly]
branded as: “Hamster wheels on Pearl”. The Presider swiftly denied several demands for
bills of particulars to all defendants, an extra-lawful message raising a yellow card for
judicial predilection in the coming. Aliens do not know that.

       Aliens like me, who grew up in post-nazi-post-war Germany, a genuine democracy,
are untrained to smell approaching judicial skullduggery violations coming from under
the solemn oath of office.

       Therefore the Presider’s results were wrong ab ovo upsetting the fundamental
notion of democracy that judicial branch III exists also to enforce the constitutional rights
of the people, and that the express [interstate] limits Congress set were ignored, those

6 Richard Zabel, Rusty Wing, Esquires
7 Sen. Murkowski 6/6/2012 at SJC pressing for legislation on Brady “rules” requiring prosecutors
to disclose any exculpatory evidence or be punished.

limits set by the people’s elected representatives. Ronald Reagan’s cynical “regurgitated
prosecutors” appointment mock comes into mind.

         Importantly, it is well established that courts “have an independent obligation to
consider the presence or absence of subject matter jurisdiction sua sponte.” Joseph vs.
Leavitt, 465 F.3d 87,89 (2d. Circuit 2006); see Fed.R.C.P 12(h)(3). Also: “On every writ of
error or appeal the first and fundamental question is that of jurisdiction, first, of this
court, and then of the court from which the record comes. This question the court is bound
to ask and answer for itself, even when not otherwise suggested and without respect to the
relation of the parties to it.” [Emphasis, underline added]. This rule was adopted in
Capron v. Van Noorden, 2 Cranch, 126, decided in 1804; see also Great Southern Fire
Proof Hotel Co. v. Jones, 177 U.S. 453.

                                               Argument 1

                                                  Part A

         Below, the government argued [Gov-Letter to JGK 4-23-2012, pg 4, 5, 6:“GovL”
intra] straight from whackosphere8. Admitting openly that “purely Intrastate carriers”
are a failing catch under §1341 (presumably because Congress lacks State powers), but
(“somehow, somewhere, when you least expect it”9) Intercontinental carriers shall become
great catch, never minding that §1341 reads otherwise, and, unsurprisingly, supportive
case law is left out by branch II, and – as a matter of probability – cannot be found to
glean from.

                                                  Part B

         Syllogism continues in rampant mode, because next, they claim that somehow
material mailed must not really remain inside the United States, because there is

8   GovL Pg4 has a nonsense claim in endless pursuit to paper over: “(2) material deposited with a
“private or commercial interstate carrier” 18 U.S.C. §1341 (emphasis added). Depositing
material with a purely intrastate carrier would not suffice for purposes of the statute”.
9   Candid Camera´s popular Slogan

“nothing in the language”(id *4). The government acts like a contortionist and obviously
bends over to make “interstate” vanish from the text. But, nevertheless, they now relay
what is properly not texted by Congress as being “Fatal to Viertel´s claim” (id.).

         Let´s just say, arguendo, that any “incomplete” interstate mailing is a postal
absurdity and deadly end to §1341, and nothing further ado. Moreover, a “deposit” was
not on trial and left un-charged. Instead, “DELIVERY” was charged: to Offenburg,
Germany (original clip intra). The government´s “arguments” and “construction” fail.

                                                  Part C

         On *5, the government enters more slippery terrain by focusing on Appellant´s
original Morrison (intra) Argument10. In GovL *6 the United States´ advocacy “submits”
that “it does not apply” to criminal statutes, par for their course. For simplicity and
clarity, Appellant hereby adopts and relies upon expert legal analysis by the NY Bar
Association´s AMICUS CURIAE Brief11, which is (in excerpts) attached as Addendum.

                                               Argument 2

         Appellant submits that the District Court failed to exercise judicial diligence on
many aspects of 01-cr-571, - which commenced on a side-bar hoodwink sans Magistrate
tombola´s roll of fairness for all on Flag Day12 2001 – to harbor this case upon
revealingly open conflicts, vertical and horizontal associations, loyalties and quid-pro-quo
traps it was bound to steer into; see U.S. v. Gottlieb, 738 F.Supp. 1174, 1181 (N.D.Ill,
1990) A court must look past the indictment’s legal characterization of a scheme and
determine whether the “specific conduct alleged in the indictment is clearly proscribed by
the mail fraud statute.” Appellant submits that abuse of judicial discretion is intrinsic
with abuse by post facto judicial fabrication onto unlawful statutory expansionism.

10   By driving as far off-course as to rely upon S1 09 Cr. 0662 (PAC), 2011 WL 924891 at *5
11   CA2: 12-1967(L) (Doc # 115)
12   June 14, 2001 was United States FLAG DAY, like every June 14

      A federal defendant’s alleged clairvoyance ( which the “Sheppard” somehow
detected) about international carriage of material is a) causation-free, and b) crime-free
[as crime-free as are all potential mail-fraud “schemes” that lack substantive and
successful domestic interstate mail/carrier delivery in pursuit].

      Early this year, 2012, when the Presider coined the newest “judicial ruse” [see 5-8-
2012 Op & Order DE 1:08-cv-07512 D.E #12, 01-571 D.E. #28313] seeking lagniappe
rescue for a fictitious “interstate” mail fraud prong, judicial effort failed miserably for at
least six reasons:

      1) the record below does not support the novel judicial ruse,

      2) the Grand Jury was left unaware

      3) Grand Jury witness Blumenberg [Def:1] or FBI’s S/A witness Connor O’Sullivan
were both unaware, nor

      4) did any trial actor understood or hold “Apex”, the BMI cost-free gypsy livery
truck, as that almighty jurisdictional vehicle competent enough to criminalize an alleged
transport event (in itself absurdly harmless and crime-free), nor

      5) can a gypsy livery truck be capable of terminating an INTERNATIONAL
AIR FREIGHT DELIVERY into Germany for completion, and


             283 MEMORANDUM OPINION AND ORDER # 101779 as to (01-Cr-571-
                 03) Christian T. Viertel. This is an application for a writ of error coram
                 nobis brought by the defendant, Christian Viertel ("Viertel"), pursuant to
                 28 U.S.C. Section 1651. Viertel asserts that the jurisdictional element of
                 the wire fraud charge for which he was convicted on October 2, 2002
                 was never established, and therefore that the conviction must be vacated.
                 For the reasons explained below, the application is denied.... Conclusion:
                 The Court has considered all of the arguments raised by the parties. To
                 the extent not specifically addressed, the arguments are either moot or
                 without merit. Viertel's application for a writ of error coram nobis is
                 denied. The Clerk is directed to close Docket No. 282. SO ORDERED.
                 (Signed by Judge John G. Koeltl on 5/8/2012)

          6) did branch II neither promote this “gypsy” theory in its submissions, arguments,
summation nor did branch II support the “gypsy” ruse in any later submission nor could
branch II miraculously muscle or transbobulate gypsy trucks into magical interstate
carriers, if ever pressed to show cause. The government remains silent.

          Chief Postal Inspector Guy J. Cottrell knows best with 1000+ arrested suspects on
§1341 mail fraud charges FY2010 [all of them exclusively domestic deliveries] in misuse
[of USPS mails] “to defraud, endanger and otherwise threaten the American Public14”,
a purely domestic malfeasance, since Benjamin Franklin was British Postmaster.

          Bogus consignee “Burda Holding”, a putative but not bona fide victim in
Germany, cannot qualify for protections U.S. mail recipient enjoy, nor is Burda
Holding a member of the “American Public”.

                                                Argument 3

          relies on defendant’s claim below, now at bar, that Count 3 (§1341) had - prima
facie15 - a fatal “birther” flaw that turned incurable due to the statute’s time-bar
guillotine falling on 6/28/2001, one day prior to this defendant’s initial SDNY court
arraignment. Subsequent [S1; S2] gov’ment patchwork was locked out for interstate
revisionism, but that’s how, why and when judicial craftiness transmogrified into denial
of blatant jurisdictional nirvanae porting covert partisanship into rigueur.

15 “interstate” is exactly not “international, intercontinental or foreign”, but are mutually exclusive
to another

     a) International freight delivery to Germany is not moiety of federally sanctionable
        interstate facilities Congress enacted to protect16. “S2” indictment officially notified
        this defendant and specifically charged the substantive dated “Delivery by
        international freight company” limited to a single item : [Agate Invoice for] $8,12017,
        and, moreover, the parenthesized title (18) or sections (1341,1346,2) do not match
        the charge above but represent a type of harmful transgression “Aleynikov” error,
        this Court well recognized in U.S.C.A. 11-1126

16 The “Trier” of facts (JGK) last month – 11 years post-facto – tried a new fact on its own, inflating
its “unindicted, alternative transportation” buoy from thin air: a sudden unlicensed gypsy livery
truck’s Hudson crossing was called to judicial duty for a novel ruse under a theory not argued pre
or at trial, and, surprisingly, not even concocted by USAO’s “constructive transgression team”[sic].
Even assuming – arguendo - a gypsy livery could [lawfully] pick up a package for a final crossing
over the Hudson, that movement falls under Beech-Nut’s [871 F.2d 1190ff] “prior and
                                                                        conclude delivery”
preparatory” exemption, because NY gypsy trucks can’t fly and can’t “conclude delivery in

17The “Mail” count – a must-see visual intra- was fatally corrupted to Kafkaesque heights
dependent on branch III’s scienter not to annul branch II’s card-house:
          a. unidentified “international freight company” was, in fact, LUFTHANSA GERMAN
              AIRLINES – FAA licensed - INTERNATIONAL AIRCARRIERS are prohibited from
              international cargo “Luftfrachtführer” is entirely immune to §1341 engulfment];
          b. Departure Airport: was outside the SDNY but inside NEWARK NJ. @ Justice & Liberty
              Airport; [venue errors raise questions of law]
   c. Departure Date 6/28/1996 was botched: LH Flight 403 operating June 29, 1996 possibly
      carried a crime-free copy of the substantive “fake Agate voucher” via Frankfurt to Munich
      on LH Flight 142/30 June 1996 [at trial that single voucher was, if anything, a proforma
      voucher without documentary or face value to fool a soul];
   d. Arrival Airport Destination was botched as well and not statutorily “as marked”, as the
      factual arrival was not “Offenburg”, but MUNICH AIRPORT = EDDM.
   e. Addressee was M&M Air-Cargo in Munich and not “Burda Holding, Offenburg”, eviscerating
      branch II & III of a genuine domestic “locus delicti”.
   f. “original invoice”, charged as a $8,120 (Agate) – was not content of the export shipment,
      because this one & only “Agate” fake [printed by Burda Media’s own scriveners] was kept
      locally with other ORIGINALS at Burda Media Manhattan, where such documents rightfully
      belong under tax rules, and specifically during the expectancy period for senior audit
      examiners to arrive by July 9, 1996, and to perform a first partial year audit.


c) It is an almost established fact, that gypsy livery trucks, “batmobiles”, space-
     shuttles and local messengers cannot pass the interstate carrier smell test (see:
     Prof. Henning/US Atty.Manual and (01-Cr-571-03) MEMORANDUM OPINION
     AND ORDER # 101779), in particular when any wheels plainly fail to in-State
     register, fail to in-State license, and fail to pay for the mandatory UCR program
     (Congress’ Unified Carrier Register: ), they are simply excluded.
     The Court’s “gypsy” stilt was also too short of a local, domestic client-payee-shipper
     [gypsy’s client was M&M in Munich as evidence showed, and “APEX” was an
     “agent” of Lufthansa, nothing else], under §1341’s exclusory “foreign commerce”
     disabler [contrasted to §1343’s “foreign” enabler). Congress concluded long ago it
     neither has authority nor inclination to shelter “international, foreign or overseas”
     consignees from stateside hanky-panky and popular lottery fraud; and neither have

        U.S.P.I.S [supra] mail-fraud jurisdiction over internationally destined mail,
        globalmail, or airmail passing18 through any sorting hub, i.e. JFK.

     d) “Pecuniary Loss” to U.S. “citizenry” was zero, offense-free “sufferance” to a certain
        sovereign syllogistic, and nil “losses” recorded at New York´s German owned Burda
        Media Inc., a [NYS domestic for profit] business corporation with a thick sideline for
        intramural accounting fourberie, a massive DIY Pro-forma self-print-shop, but with
        really big revenue from really big media clients, all of which branch II concocted to
        obscure from the trial of this alien Burda outsider, turning judicial proceedings into
        official travesty. If the USAO was really benevolent (Gov.MOL 12-13-2002 a Comey-
        Cohen-production) to worry that a foreign owned ”Burda Media paid almost a
        million dollars for work that was never performed” (emphasis underlining added),
        that same proctor-team should have realistically been revolted over Burda Media´s
        ($3+ million) Roger & Wells Über-fee overcharges19 that did not create a shred of a
        counter value, if they were even rendered ad absurdum. Selective worries come
        always with a reason, one can assume. But Roger W´s bogus bills equally travelled
        crime-free by Lufthansa.

     e) Burda’s genuine profit-centre was deceptively colored by prosecutors whose zeal to
        masquerade up a righteous [FBI] “victim” in absence of any officer-director certified
        “verifiable loss claim”. The bogus show was wholesomely contrary to a wholesome

19      Jander of Roger & Wells: „to make them [the courts] owe us”

        set of certified exculpatory financials -10 years worth of - prosecutors20 swiftly
        “Brady-buried” 3 weeks before trial, and when caught inflagranti in false denials –
        evasive even before this Court’s distinguished panel in 05-5012, they muddied that
        last shallow justice puddle “their” compliant bench can apportion.

     f) Newark Airport did not make it into the Grand Jury “true bill” instead Offenburg,
        Germany did. Thus, Newark Airport cannot function as “termination” of the
        “charged delivery to Germany”, see 420 F.3d 134; and that [copy of a] fake Burda-
        printed invoice fully paid-out by the payors turned into a dead leaf after fruition, in
        fact, irreversible fruition was plainly allocated [characterized] as a local overhead
        cost item booked by Burda Media NY and not some third-party loss, when an
        international air-cargo-trip occurred, vel non.

     g) Also, mail fraud’s transport causation trigger failed, because no dead or living could
        reasonably be held to clairvoyance into, or to willfully and “knowingly” cause such
        “whacko” [gypsy] events from far [France is 3’500 miles East], placing these
        Presidential agents as pathological power-trippers in paranoia-land. Mens rea was a
        non sequitur. Motives for a German in France for violating a distant countries
        mail/wire/371 laws are absurd, as lack of gain in any “wrongly prepondered”
        transaction was evident. Appellant’s restitution was eventually lifted by “hand
        endorsement” on 12/23/2012 sans payment of a single “comp dollar” by this innocent
        defendand, who is still owed funds by Burda and Blumenberg.

     h) More to wit: The “placing in” section failed as well, as there is no “placing“ charge21,
        venue remains cloudy and very debatable, because New York’s Southern District
        was not [and cannot be] departure airport for any international airfreight carrier

20   Mark Harris, Justin Weddle, Marcia Cohen plus their supervisors and USA’s
21   However, branch II or III are unable to point to any trial record to support the bald assertion that
Viertel had knowledge that the [proforma] document would be forwarded to Offenburg, Germany.
The government has thus failed to meet its burden, again.

        wide-body (JFK is located in EDNY, Newark in EDNJ), and “passing through
        Newark” remains unavailable due to the simple fact that mail fraud is unitary and
        not a continuing offense, and Offenburg is not “within a judicial district” of the
        United States, and Lufthansa is not an interstate carrier unfitting for the mail
        fraud statute. A “DELIVERY” must terminate in one of the States of the UNION
        to be validly considered, defined and considered interstate.

                    Fictio cedit veritati. Fictio juris non est ubi veritas.

         “Fiction yields to truth. Where there is truth, fiction of law exists not” (11 Co. 51.)
signifies a false averment on the part of a [government] plaintiff ...the object of the
fiction is to give a court jurisdiction (emphasis added; see Black’s Law Dictionary
489)22. When a conflicted decider was torn between what was right and what was done,
any number of missteps is bound to bedevil an introspection-free bench’s reputational
liability weighing down and out its manicured perception. Bias and ideology in this public
line of work ruins lives, on all sides. [see also:
03-26/ is such a Congressional Research Site, which openly excludes 18 U.S.C.§1341]

                                             More relevant Law

         Playwright Molière’s: 'It infuriates me to be wrong, when I know I'm right' has
relevance here, but equally – more legally - relevant is Stoll vs.Gottlieb, 305 U.S. 165,
171(1938): “A court does not have the power, by judicial fiat, to extend its jurisdiction over
matters beyond the scope of the authority granted to it by its creators”, and “Without
jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare

22   Manufactured federal jurisdiction is even more offensive in criminal than in civil proceedings, cf.
28 U.S.C. Sec. 1359. As late Hon. Judge Freedman said with respect to civil actions in McSparran
v. Weist, 402 F.2d 867, 873 (3 Cir. 1968) (en banc), cert. denied, 395 U.S. 903, 89 S.Ct. 1739,
23 L.Ed.2d 217 (1969), manufactured jurisdiction "is a reflection on the federal judicial system
and brings it into disrepute."

the law, and when it ceases to exist, the only function remaining to the court is that of
announcing the fact and dismissing the cause.” Ex parte McCardle, 7 Wall. 506,514(1869).

                i.     In MANSFIELD, C. & L. M. RY. CO. et al v. SWAN et al, 111 U.S.
           379 (4 S.Ct. 510, 28 L. Ed. 462)(1884) states “but the rule, springing from the
           nature and limits of the judicial power of the United States, is inflexible and
           without exception which requires this court, of its own motion, to deny its own
           jurisdiction, and, in the exercise of its appellate power, that of all other courts of
           the United States, in all cases where such jurisdiction does not affirmatively
           appear in the record on which, in the exercise of that power, it is called to act. On
           every writ of error or appeal the first and fundamental question is that of
           jurisdiction, first, of this court, and then of the court from which the record
           comes. This question the court is bound to ask and answer for itself, even when
           not otherwise suggested and without respect to the relation of the parties to it.”
           [emphasis added]. This rule was adopted in Capron v. Van Noorden, 2 Cranch,
           126, decided in 1804; see also Great Southern Fire Proof Hotel Co. v. Jones, 177
           U.S. 453.

     ii.   See also: United States v. Ford, Dkt No. 03-1774 (2d Cir. Jan. 19, 2006)(Winter,
           Katzmann, Raggi): "[R]estraint must be exercised in defining the breadth of the
           conduct prohibited by a federal criminal statute."[ 14, emphasis added].
           And: “There is a canon of legislative construction which teaches Congress that,
           unless a contrary intent appears, is meant to apply only within the territorial
           jurisdiction of the United States”. U.S. v. Spelar, 338 U.S. 217 at 222[emphasis

    iii.   The Supreme Court issued its conclusions when Justice Scalia’s taught the
           Second Circuit again in Morrison vs National Australia Bank Ltd. Et al ,
           SCOTUS 08-1191 of June 24, 2010: “It is a "longstanding principle of American
           law 'that legislation of Congress, unless a contrary intent appears, is meant to
           apply only within the territorial jurisdiction of the United States.' ". EEOC vs.

           Arabian American Oil Co., 499 U. S. 244, 248: “When a statute gives no clear
           indication of an extraterritorial application, it has none “(emphasis added). And
           BOWMAN, 26 U.S.94 (1922) doesn´t move the goal posts.

                            Conclusions to be drawn from a trial quote

       Hindsight is 20/20, and, given the revelations that BMI NY was in fact not at all
in forms pauperis [as branch II deceptively decreed and relentless promoted to this day
against contrarian knowledge and against their own FBI S/A investigations – O´Sullivan
was a CPA by training –] but was oppositely a very fulgurating 20-head-strong and well-
sold media producer for the benefit of its 25 overseas customers, and, in fact, without
unlawfully “bradied” BMI financial books [those relevant 5+ years old exercises that
counted the income into many millions] branch II concealed nervously under tight
safelock23, the government scam could have blown up, when bookkeeper Kiefer testified
[at Viertel Trial Tr.: 28D8VIE2, page 100 lines 15-19:] as Appellant well noted below24:
       Kiefer [direct]:“..[at] month’s end we printed all of the reports…..and then
       we sent them to Germany to the finance department”.
Obviously, Kiefer’s [read: BMI’s] “finance department” existed elsewhere, but:
               a) was not located in NY
               b) was inside Germany operated by a subcontractor (BVServices GmbH)
               c) was definitely, positively not Burda Holding and
               d) was neither a third-party donor where international “DELIVERY”
               could further anything bad, good, or whether PAID vouchers, post-cash-out-
               receipts [like a “$8,120.00 Agate” sheet] for cloud services were of concern

But regrettably, nobody but branch II was permitted to find out, until early 2004,
when German international airmail landed at my hoosegow [FCC COA] branch II
regularly overcrowds25, but not yet screens for German official language mail content.

   ex-FBI S/A is not whistleblower but still full of regret for his ignoble compliance with superiors
  May 15 2012 Recon Motion to Judge Koeltl *9 under “I”

                                              Fiat ut petitur

         Therefore, Appellant prays, that this honorable Panel grants a Writ for VACATUR
AB OVO based upon the records and the submissions in all of Appellant´s cases on hand
or as separately argued for, and does so in equitable view of Morrison, and the
Congressional Research determination, that §1341 is not applicable to intercontinental
mailings, and thus, exonerate the Appellant in toto; and, that this honorable Panel
decrees all such further relief this Court deems appropriate and in the interest of justice.

         Defendant respectfully submits that previous decisions were wrongly decided in as
much as some deciders were likely summarily disinterested in alien gravamen, genuinely
unaware of facts branch II withheld26 and/or unaware of the extent President’s agents
trespass to pervert [not only corporate] reality to make conduct appear criminal. At least
since 1986, branch II began to “run [our] federal criminal justice system”              27[sic].   That
must end, and Aleynikov (CA2:11-1126pr) raised some hopes that the Second Circuit
accepted the honorable task to do just that.

         I certify and verify under penalty of perjury under the laws of the United States of

America that the foregoing is true and correct [28 USC §1746(1)], as well as reasonable

within an effort to terminate a most unjust opprobrium any jurist of reason can detect.

Executed and Respectfully Submitted on this 17th day of October 2012

                               -Appellant-Defendant-pro-se             Christian T Viertel,
                                                                              9/18 v. delle Ballodole,
                                                                         Firenze, ITALIA I- 50139 –
                                                  /    +1 360 227 6326

26   just like the less than microscopic nexus this defendant had at all times to a NY company that
counterfeit hundreds of sheets of his stationary for intramural trickery
27   Hon. Andrew Young, J,D.MA