All Writs Act: coram nobis by ProfessorViertel

VIEWS: 3 PAGES: 29

									                        United States District Court
                   For The Southern District Of New York

----------------------------------------------------x   (fax to Chambers @ 805-7912 on 4-9-2013 & mail)


UNITED STATES OF AMERICA,                                          03 Cr 00571 (JGK)

                                    Plaintiff,                        [08 civ 7512]

                                                            AMENDED and ADJUNCTIM AWA(18:§1651)

        v.                                     for VACATUR of Judgment of Conviction grounded
                                                         upon ab ovo deficit of interstate-§1341-
                                                          jurisdiction over charged international
                                                      deliverance [via-non-interstate, foreign air
                                                      cargo carrier], divesting Federal Courts of
                                                          adjudicatory powers, for Conviction by
                                                       absentia of uncorrupted evidence and for
                                                       other good causes, factual innocence, for
                                                          arrant judicial partisanship, numerous
                                                     ERRORS, favoritism at bar and for ultimate
                                                                 Expungement of Convictions and
                                                        intentionally fallacious, database entries
F. BLUMENBERG,

CHRISTIAN T. VIERTEL, Defendants

    JOHN C. LEE,              exclusive Nollee                     [PURSUANT TO MANDATE 4-5-2013
                                                                        and for publication]

--------------------------------------------------------x




         COMES NOW, Christian T. Viertel, movant pro se, to record and file an
ADDENDUM-ADJUNCTIM to an original, “undecided coram nobis” motion filed 12-31-
2011, which the Court first: too hastily reclassified, second: mis-docketed and third:
up-beamed by “Transmittal” [Dkt:2071] to higher authority for permission to deny




1



                                                              1
pursuant to an unsuitable procedure [2255] “diabolically crafted to give false hope”
to prisoners inside a hamster-wheel but routinely dead-ended by judicial derailment
from a case-catalogue prisoners can´t buy from. The Court´s grounds were
repugnantly shaky reaching judicial emergency levels.

       “Order of Transfer” #101274 turned “transformer” into a “boomerang” during
a year of appellate abeyance, and has now landed to be rescinded pursuant to a
RETRANSFER MANDATE by the Second Circuit [12-231] to this Court2 that issued
February 7, 2013 for a Title 18: §1651 AWA “coram nobis“ decision on the merits”.

             HURRIED DENIAL cheats the 6th Amendment CONFRONTATION CLAUSE

       Movant´s original 12-31-2011 Motion is herewith adopted in its entirety, with
Petitioner´s Affidavit and meritorious arguments in CA2:12-231 are equally adopted
in their entirety as is a 21-page RENEWAL MOTION TO COMPELL filed 4-1-2013
[Dkt:#292], which hereby becomes an integral part of this PETITION, regardless of
whether the District´s willingness was perfectly foreseeable ad infinitum - ad
nauseam to result in yet another disrespect of the 6th Amendment´s
CONFRONTATION CLAUSE in efforts to never shed proper light onto the accusations
and behavioral pattern and character of the “official” accusers who surrogated for yet
other commercially motivated proctors, the Court planned to shield from grief and
liability.


              01/09/2012 270 MEMORANDUM OPINION AND ORDER OF TRANSFER:#101274
                             as to Christian T. Viertel: The Clerk of the Court is directed to
                             transmit this Order and the attached motion to the Court of
                             Appeals for the Second Circuit pursuant to 28 U.S.C. § 1631.
                             (Signed by JGK on 1/6/2012) Modified on 1/12/2012.


2
 USCA2 in its decision: “[Instead] the court should have construed his submission as a
petition for a writ of error coram nobis pursuant to the All Writs Act, 28 U.S.C. § 1651, and
considered the motion on the merits. See Fleming v.United States, 146 F.3d 88, 89-90 (2d
Cir. 1998) (per curiam) (“Coram nobis is essentially a remedy of last resort for petitioners
who are no longer in custody pursuant to a criminal conviction and therefore cannot pursue
direct review or collateral relief by means of a writ of habeas corpus.”).”


                                                     2
      The hurried DENIAL [Dkt:#291] fits the pattern, the judicial ostrich pattern of
this case, and was a partial “Pavlovian” response to be considered erroneous during
fore-play to a coram nobis procedure, which allows rightful development and
presentation of logical grounds and established facts in the interest of justice.




                                           HIT JOB

      The DENIAL cheated and obstructed justice seriatim, temporarily. Results from
Court documents, specimen, and responses sought by MOTION do not vanish,
evaporate or clean the CHEAT because they remain mandatory noticed , even, to the
truly un-American distress that expected results might topple if not devastate
plaintiff´s insupportably stubborn positions and disaffirmations, reaffirm plaintiff´s
career amorality, lurid gamesmanship, lack of integrity and king-pin-misconduct
violating so many laws in intentional tort in far extension from “just” misconduct.

            “Criminal case fixing cartels” are a serious attack on the RULE OF LAW
and onto the perception thereof, onto the public at large and onto targets in
particular. These cartels are hard to both find and to punish. They act with
enhancing sophistication, brotherhood omertå and they scoff investigations.
DENIALS are key tools in the interplay.

      Courts are NOT THE PROTECTORS of the “crown´s” misconduct, just the
opposite holds true and valid, and they are not the henchmen of bar fellows, the
other court officers, and if a Court, like in this case “should have known” with certain
foreseeablility, that the gang on first row is coloring law like PLAY-DOH, any Court
was obliged to call them out.


      Federal Black robes are unelected, picked through a “system” of not only
gerrymandering selection procedures and silly Florida recount scenarios, and
demand an even higher standard of INTEGRITY and IMPARTIALITY that must be
OPENLY VERIFIABLE and FORSEEABLE:



                                           3
      George Washington wrote to AG Edmund Randolph on September 28, 1789:
             “Impressed with a conviction that the due administration of justice is
             the firmest pillar of good Government, I have considered the first
             arrangement of the Judicial department as essential to the happiness of
             our Country, and to the stability of its political system; hence the
             selection of the fittest characters to expound the laws, and dispense
             justice, has been an invariable object of my anxious concern.”



      Therefore, and in view of George Washington´s concern, all other, Petitioner´s
earlier submissions, whether denied or not, are validly RENEWED and must be taken
under advisement together with the instant filing to achieve a just result.

      Because subject-matter jurisdiction involves a court's power to hear a case, it
can never be forfeited or waived. Thus, defects require correction regardless of
whether errors were raised or not.

                                   PRO SE statement

      for just cause as detailed below, in the interest of fair and equal justice, and
pursuant to Haynes vs Kerner , 404 U.S. 519, et al, which allows a pro se litigant not
to be held to stringent technicalities nor confusing labels complicating simple
judicial actions that could correct injustice.

                                        1. PRÆAMBLE

      The U.S. Supreme Court stated emphatically in Bousley v. United States, a
“conviction and punishment …for an act that the law does not make criminal
results in a complete miscarriage of justice” 523 U.S. 614, 620-621(1998), and
this case´s “Conviction and Punishment” conflicts, inter alia, with the principle, that a
[mail fraud §1341] statute can only have one authoritative meaning: interstate is
simple an interstate commerce issue and only between two or more States of
the Union, and was not intended to be between other places on earth by the United
States Congress at every §1341 amendment henceforth. There is no wiggleroom.


                                             4
Burda´s business was not interstate.
Period.
End of discussion.


      Law Lord Justice Kenneth Baron Diplock, the longest serving Lord of Appeals
and a life peer remarked: “The most herculean challenge for any lower judge is to
gauge the truthfulness of the parties. Bench-Bias favoring those carving official legal
careers out of dishonesty surely degrades the process, rendering it undue,
undignified. Betrayal of public’s expectation that government must act honorably,
but gets off free and otherwise, burns our branch into the ashes.”


      At least one judge, U.S. Magistrate Judge Stephen Smith of the Southern
District of Texas, has spoken out:

             “We diminish our legitimacy when we do things under a blanket of
             secrecy,” Judge Smith said in an interview. “The only way people can get
             confidence in what we’re doing is if they can get access3 to what we are
             doing and know why we are doing it.”

      Liars of the State coloring the law shall enjoy no protection from the last
branch or RECUSAL will be the only and final solution, if personal allegiances hinder
integrity pursuit.

      Manhattan U.S. Attorney PREET BHARARA recently said: “As he admitted today,
Maguire corrupted the federal judicial system. Our system of justice, and the grand
jury’s search for the truth, depends on people being honest rather than providing the
grand jury with phony documents. No one, least of all a public official, can be
permitted to hide the truth from the grand jury.” Well, Mark Harris, Justin Weddle
AUSAs did it anyway.

                                     Fiat ut petitur


3
 4-4-2013: Police and prosecutors increasingly are working to clear the names of the
wrongly convicted, according to a report released on Wednesday by a law school consortium.

                                            5
              2. EVIDENCE LACKS THAT RULES OF LAW PREVAILED

      Movant respectfully submits, that this entire proceeding 01-cr-0571 [and the
specially coined off-side track 08-cv-7512] has very little to do with a lawful
vindication effort in favor of United States Codes, nor with sufferance a certain
“captioned” sovereign was made to endure from the acts of the defendants. The
coram nobis Motion, therefore, was very timely when filed in 2011, because accused
aliens are unfamiliar with so many nationwide skullduggeries U.S. government
agents dare, commit, disguise, deny and sit out in hopes of immunity and forborne
judicial expungement. Aliens are left with the humongous task of discovering4
malfeasance. Games prosecutors play are manifest5, and not in Brady alone, but
probably everywhere, as the BMI- profit-centre truth vs. pauper con [intra]
demonstrated. These were charedim prosecutors, they annihilate respect for the
“system”, and they consistently pervert any claim to a RULE OF LAW SOCIETY.


      Movant submits that décor plaques in Courtrooms: “IN GOD WE TRUST”
camouflages more truthy graffiti: “BLASPHEMY WE PRACTICE HERE. WE WIN, YOU




4
 Over the years and to this day, I and my collaborators debriefed many active and retired
court staffers, judges and attorneys, including many, who as officers of those courts, were
not authorized to speak either on direct issues nor “on background”, all of them knew
internal secretive policies, white-shoe-skullduggeries and power and career plays, most
suffered from lack of support by higher ups not shielding many from aggressive attorney-
conduct and a disturbing level of compliant judicial enablers “oogling that windowed gratis
corner office overlooking the Park”[sic].
5
 LITIGATING BRADY: GAMES PROSECUTORS PLAY (pg 531 ff. CASE WESTERN RESERVE LAW
REVIEW [Vol. 57:3] “By any measure, Brady v. Maryland has not lived up to its expectations.
Brady's announcement of a constitutional duty on prosecutors to disclose exculpatory
evidence to defendants embodies, more powerfully than any other constitutional rule, the
core of the prosecutor's ethical duty to seek justice rather than victory. Nevertheless,
prosecutors over the years have not accorded Brady the respect it deserves. Prosecutors
have violated its principles so often that it stands more as a landmark to prosecutorial
indifference and abuse than a hallmark of justice. Moreover, as interpreted by the judiciary,
Brady actually invites prosecutors to bend, if not break, the rules, and many prosecutors
have become adept at Brady gamesmanship to avoid compliance.”

                                              6
LOOSE, OR WE FIXED IT” is hypocrisy unveiled undermining Americans´ loss of faith
in its institutions and furthers their distance from the joys of democracy.


      Judicial “discretion” can only go so far, discretion is no secret yarn sewn into
black robes worn also at Movant’s 2002 trial [a “trial” as “justified” as the bogus war
on Iraq], and worn over during the “vaporware-special”, the blindfold preponderance
phase that debased the fairness and legitimacy of sentencing. “It was not right”.

      Movant concedes that the District Court was probably and initially disrobed by
proctor´s CON games of its most relevant Rule 29 and sentence “loss” measuring
tool, followed after prior disrobements of the most relevant trial exhibits, the [QT]
Bilanzbücher, which witness Kiefer, lackluster local BMI bookkeeper, “coulda-woulda-
shoulda” laid out for the jury as “BMI´s local 1996 financial audit”, but she was
heinously retracted, re-diverted – unlawfully prepped like marionettes are power-
tutored by presidential zealots – never permitted to refer to a better-known existence
of 5 years of local audits, substantial local earnings since 1992 or rich billing
contract services by Burda Verlagskoordination GmbH with assistance from Burda
Dienstleitungs GmbH, BMI´s accountancy contractor, but to promote the
prosecution´s “commercial and corrupt” adoption of an absurd BMI-pauper scheme
(getting off scot-free).

                       United Daisy Chain litigators of America

      Prosecutors “became shamelessly infatuated” with Warren Feldman´s cunning
pilferage of Burda´s rich coffers while concocting a bogus RICO6 claim: “It is a tale.
Told by an idiot, full of sound and fury. Signifying nothing. (Macbeth, soliloquy Act 5,
Scene 5).




6
 Feldman´s ineptness duly kept Senior Judge Sweet from advancing to jurisdiction heaven
due to his defective SUMMONS in 97-cv-7167, and this belated hood-winked criminal referral
was his personal requital doubling as a horrid scheme to cover wimpy tracks, and, moreover,
to shield his “dishonest servicers team” at Rogers & Wells. It did happen, because the Federal
legal system is said to be an amoral buddy network, fueled with dishonesty and greed [sic].


                                              7
        SDNY U.S. attorneys White, Comey et.al. all had scienter of Feldman´s scheme
and of his juicy pilferage from “BURDA”, they aided and abetted their “dearest
colleague” by making it rain Grand Jury subpoenas upon “BURDA-BMI” the local
stooge, in turn, requiring “BURDA-BMI” to endure more of Feldman´s “expert” billing
scams. A billing so bloated, extra retro-bonus-commission became foreign
recompense practice to BURDA´s own Board member Robert Karl Werner Schweizer
and his law-LLP in Munich for approving the payments for Feldman against “BURDA-
BMI”.

        Movant submits, that smell testing must become 101 judicial course material
and when “In God We Trust” is no longer popular a business model at bar, oaths
become meaningless, robes just a fashion statement.

        Rogers & Wells, Feldman and others stand accused of trying and succeeding to
reap financial capital from a self-coined but counterfeit “BURDA” criminal case and
are not the first bogus accuser in history conducting a smear campaign, fabricate
appearance of substantive criminal acts, counterfeit, conceal and pervert “BURDA
MEDIA” business records to easier persuade friendly prosecutors in the pursuit of
charges just to assure continued reaping of dishonest fees from client “BURDA”.

                             Suppressio veri expressio falsi

        This gaming “seriously affect[ed] the fairness, integrity, or public reputation of
the judicial proceedings” (canonized) and conflicted with “faithful and impartial
discharge” the law commands (28:§453), until peripeteia strikes with a WRIT of
coram nobis grant.

        And below is a perfect sample of gaming passed off by an “impartial” Court,
who sat quietly through these words to the Jury, words which have no trace of gypsy
livery, Newark Airport or New Jersey across the Hudson. In fact, it is all about
GERMANY in this Courtroom, see below [page 1889] line 22 “- and then all of that
was sent to Germany”. [Hello, is that an interstate mail to Germany?]

        What happened to Newark´s vanished LIBERTY AIRPORT in the scheme?


                                             8
      And more, right below [intra] on line 25(id.) and page 1890 line 1 twice about
“reasonably foreseeable”, that wonderful segment burns and buries the Court´s
2013 gypsy-livery-ruse, a ruse unsupported by the charging record, and unsupported
by the government indictments, superseders, or arguments. ZILCH.




      If, arguendo, a defendant could be criminally liable [under the precondition of
furtherance having been established], if it could be proven beyond a reasonable
doubt that he could have foreseen an international mailing to [or wire from]
Germany, as the government ventilates above, how can that same defendant, come
2013, in the Court´s novel fantasy, have simultaneously foreseen a gypsy livery
truck crossing the Hudson on June 28 1996, far away in France by his big pool, the
government lusted for. There goes credibility for judicial neutrality.


                                            9
                  3. Presumption of Impartiality must be evident

      Furthermore, just as an accused rarely profits from the presumption of
innocence,    Courts    must    suffer   equally   as   all   are   equal   before   the   law.
Presumptionwise, that is. Movant respectfully submits that a fact-finding-Court must
retackle all issues and arguments presented with the utmost exercise of judicial

obligo impartialis, any shortage, or the appearance thereof, would results in
malum prohibitum in se.

      Previous “opinions”, fore-telling JURY instructions, and a dizzying flurry7 of
judicial DENIALS – early and in the “presumptive innocence” phase [Hello, this phase,
logically, demands a view of issues in the light most favorable to the accused] of this
case - which could very well indicate a measurable degree of impartiality [and well
alter the pro-peer benevolent declaration honorably noted by the Second Circuit in its
LATEST decision, albeit dicta, sans weightiness of valid historic review, supra] must
be, inter alia, subject to sua sponte review for correction or mea culpa declarations
that, in hindsight appear utterly predilective if not outright deleterious, forbearing
the intentional conviction apparatus games on a tilted playing field so many
respected jurists of reason find lugubrious and shameful.

              HAM SANDWICH NATION: Veritas liberabit or unkosher?

7
 Dkt: 55 OPINION AND ORDER# 87156 as to Christian T. Viertel, For the foregoing reasons:
1. All of the motions by Lee are DENIED as Moot, with respect to Lee, in light of the
government's filing of a nolle prosequi with regard to him. 2. Viertel's motion to sever his
trial from Lee's pursuant to Rules 8(b) and 14 of the Federal Rules of Criminal Procedure
is DENIED as Moot in light of the fact that there is only one defendant remaining in this
case. 3. Viertel's motion to dismiss count one of the First Superseding Indictment as
duplicitous is DENIED as moot with respect to Vierel in light of the government's filing of the
Second Superseding Indictment. 4. Viertel's motion to dismiss the conspiracy charged
against him in the Second Superseding Indictment on statute of limitations grounds is
DENIED. 5. Viertel's motion to dismiss those portions of the charges against him in the
Second Superseding Indictment that allee a scheme to deprive another of the intangible right
of honest services is DENIED. 6. Viertel's motion to compel production of any materially
exculpatory materials under Brady is DENIED. 7. Viertel's motion pursuant to Rule 7(f) of the
Federal Rules of Criminal Procedure for a bill of particulars is DENIED. ( Signed by JGK);
(Entered: 07/15/2002)

                                              10
         Therefore, the Court shall nobly strive to decide unencumbered in granting
this coram nobis MOTION, as amended, without appliance of any undemocratic,
tendentious “favorable lighting sets”, and nobly do so without prejudice, without pre-
mindset and without respect for ignoble allegiances in full comfort of the prospect of
immunity judges enjoy since Hammurabi´s Babylonian Codex was suspended.

         The Court shall honorably and impartially step out of the dark-side and come
forward to finally acknowledge, that it is truly “unable” or rather unwilling to identify
a bona-fide crime or victim at my sentencing and even years later in its “amended”
judgment (with idem victim´s identity botch) and at any time since (especially since
Movant submission of BMI´s 1996 audit retro-rendered any “fictitious loss oracle”
based sentencing scheme ultra vires) this audit became the record in this Court,
albeit a consciously avoided record. The Court´s lasting unease over dealing with
fundamental “Restitution” issues became evident to a few puzzled CJA´s [Kluger,
Dunn, Nelson] during a recent multiyear dilatorily protracted R&R agony, that
resulted unsurprisingly in Movant “WAS RIGHT ALL ALONG” in his demand over
seven years for an ORDER for “freedom from Restitution-nunc-pro-tunc” and such
despite without a DIME paid to fake victims: Burda Inc et al. (So measly JUST
ORDERED after 7 years government-court skullduggery: 12-23-2011).

         Movant submits to this Court8 that a survival of a proctor/proctrix´ legal
career may not be cause for injustice and for undue process to an accused.
Accountability trumps the buddy-codex and photo-shopping crimes and trumps
Vatican-Style adjudications9, that subsequently, and inadvertently, became a well
directed, coordinated effort by Rogers & Wells to curry favor with Burda Germany to
squash discovery and obstruct investigation of substantial money laundering activity
at several Burda Group companies (Verlagskoordination GmbH was a principle


8
 The Center for Public Integrity dug through disclosure forms judges filed during the past 4
1/2 years and found that 185 federal district and appeals court judges — 11 percent of
federal judges — reported attending at least one seminar at which foundations or
corporations paid for air fare, hotel stays and meals.

9
    Vatican Rule: when thinking like a Pope, knowing when to quit, is the moral consequence.
                                               11
player), a continuing enterprising activity to which Blumenberg [or Lee/Viertel] were
clear outsiders, and Hubert Burda and his managers (those superior to Blumenberg)
were the insiders. It has become clear over these years, that the District Court Judges
involved here were at least “played” as a piano by those proctors, who according to
one: “[knew] how to make “them” owe us” [ http://bit.ly/Qqs4oM ].

      Movant’s arguments are additionally supported by the rule of lenity applicable
to criminal statutes, see generally Chapman v. United States,500 U.S. 453, 463, 111
S.Ct. 1919, 114 L.Ed.2d 524 (1991), and the policy that penal statutes ought to be
construed in accordance with their plain meaning, so that the least sophisticated
citizen (and aliens) may read the statute and regulate his or her conduct consistently
therewith. (Beatification of an unregistered gypsy livery truck is beyond logic,
honesty, amorality and far beyond the statute). Not even the know-all prosecution
could or would point to a single instance, where §1341 was successfully charged or
litigated under a out-of-country mail delivery scenario, or even to a foreign address
(which was botched here because the delivery was proven to have been effected into
Munich, Germany the airport of Lufthansa arrival). The government did not even try,
to locate support for a judicial “gypsy van to Newark” ruse the fact-finder ultimately
carved from rotten wood in early 2012: Ignorantia judicis est calamitas innocentis



      Movant strongly objects to this Court´s staggering attempts to impinge upon
the sovereign prerogative of Germany, the Nation where the valid with some invalid
BMI-vouchers were successfully delivered to the accounting subcontractor for
ultimate processing [bypassing Newark Airport in New Jersey], and were MEDIA
services billings to 25+ European foreign customers were handled exclusively by
BMI´s subcontractor to generate revenue for BMI. For a Federal Court to act in this
manner would be trespass to super-power-impose the domestic U.S. mail fraud act in
order to govern conduct all over this planet and would also plainly trample
CONGRESSIONAL will and the United Postal Unions jurisdiction. In short: ultra vires.

       A Court which permits a jury to convict for a §1341 mailing upon foreign
delivery has committed grave ERROR, severe and not harmless by any measure, and

                                           12
such ERRORS (what a benign word among buddies) are really STRUCTURAL ERRORS
and must be reversed in a coram nobis.



      Therefore, alien-Movant prosecuted in a “F³” case, respectfully submits that
this Court respects the urging recommendation to steer perfectly clear of the “foul
scent of bias” [sic] and equally recognizes that ignorantia iuris nocet, also harms the
Court itself and its reputation. Therefore, the Court shall:

      (a) Nobly seek expert guidance on the materiality of financial accounting
results in the micro-economic corporate arena of a foreign owned NY based entity,
its assembly of certified records and “books”: “Bilanzbücher” are meant. In particular
seeking professional advisories in an evidentiary quality, what 1996 BMI “bradied”10
financial audit disclosed and what the records unavailability at trial meant for the
administration of justice, because these “books” would have not only debunked
“foreseeable economic harm” – a claim so outrageous, as if movant was seeking to
harm a victim, who was a great customers of his studios - , once obtained from
Germany – in 2004 while incarcerated by other president´s agents - were indubitably
material, and not only for the Supreme Court´s McNally materiality test of 1987 (sic),
a sine qua non requirement, that this Court has botched – seriatim – in abuse of a
discretional authority, that cannot stand unqualified but raises – on this coram nobis
review – catastrophic dimensions. A BMI-audit Immateriality holding lies outside of
an unlearned Court´s white-collar hide-and-seek a victim domain.

      (b) Nobly seek qualified advisory [R&R procedure type] on the §1341statutory
territorial LIMITS in view of a overreaching mail-fraud charge against Petitioner with
an allegation [see Appendix to 12-31-2011 Motion submission] to have “caused use
of an international airfreight company for an transatlantic delivery to Offenburg,
Germany of a $8,120 invoice document”, and by


10
  “bradied” signifies a term for unlawful prosecutorial conduct by withholding material
exculpatory evidence from a defendant, and is, pursuant to its prohibition pronounced in
Brady v. Maryland, a dirty game played in Courtrooms the land over.

                                             13
      (c) “expressly stating why those prior decisions were not predicated on an
unwarranted judicial injection of an extraterritorial offense element that” is not in the
statute, and by

      (d) directing the government to file a SWORN brief as to all issues with this
Court in detail and specifically upon mail-fraud precedent involving international
deliveries and all aspects of this motion, in particular

      (e) the jurisdictional importance of the clear exclusion of the word “foreign” in
§1341 vis-à-vis inclusion of “foreign” in §1343], and whether “Manufactured federal
jurisdiction is even more offensive in criminal than in civil proceedings, cf. 28 U.S.C.
Sec. 1359. As the late 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."

      (f) directing the government to thoroughly explain why the “gypsy livery van”
transportation crossing the Hudson River to Newark airport was not charged in my
indictment, and why a “gypsy livery van” while a NY unlicensed business operator
would qualify as a codified interstate carrier, without such notice to the accused; and
furthermore directing the government to explain on what safe legal grounds a
domestic “leg” [unqualified at that] of an otherwise international transaction can
expand11 a statutes reach beyond its “interstate limit”, and whether there was any

11
  Movant submits that it cannot expand the reach, as Congressional action was required to
INCLUDE “foreign” in the Wire-Fraud statute clearly demonstrated. Congress was prompted
by an international fraudulent telephone-call from Mexico to a “victim” inside the United
States, that, after reaching the U.S. inbound gateway travelled onwards on interstate wires to
the victim-respondent, but was still properly rendered non-criminal conduct prior to the
amendment of §1343, because wire communications just like international mailings must be
viewed as exclusively INTERNATIONAL and may not be chopped up in segments or Postal
hubs (and certainly disqualify EWR Liberty airport as a destination, when EWR was never
charged nor would have survived a challenge). Like treatment exists in international air-travel
involving a domestic airport hub prior to connecting to the international flight, that is
considered a Warsaw convention travel and no U.S. ticket tax may be charged for the
domestic, interstate flight sector.


                                              14
proof that the defendant could anticipate, would have a motive, mens rea, or could
even know or cause a movement by a “gypsy livery van”, while it is well known and
proven, that the van was not hired and paid for by BMI but by a Munich based Cargo
handling company [A&M], whose activities neither the defendant nor alleged
conspirators could have known about, and furthermore provide evidence, that a
(Munich, Germany) based transport customer implicates federal law.

      (g) the charging decision on §1341, the absurdity of §1343 and the two
dismantled bogus overt acts of §371 were an objectively supportable (while the
government was in indubitable possession of information about the profitability of
BMI and the missing nexus to Burda Holding) prosecution during the dying moments
before time-bar in 2001 and whether the charges were properly edited by one-two-or
three persons with a financial interest in the proceeds of the prosecution [and a
deeper financial interest by assisting Clifford Chance to keep on fleecing Burda´s
coffers ho and fro].

                                     Unrevised history

      It began on Flag-day 2001, when a fax wired an unsigned “arrest” warrant
template kicked off outrageous prosecutorial fraud upon movant and the
“unsuspecting” agencies12 in Palm Beach. No honest arrest warrant could possibly lay
prior to a “real” open-court filing procedure of an indictment {the Court may review
the bogus docket entries, search for a procedure, query a magistrate schedule,
compare its own calendar, search for the barrel draw, and movant could furnish a
pen-marked signed “Indictment cover” pulling the rug on the ruse at 500 Pearl}.

      And, furthermore, to direct the government (h) to explain why the uncharged
defendant was reclassified a FUGITIVE on 6-14-2001 and what applications –
undocketed- were made to this Court which permitted the government to abstain




12
  Factually, the FBI Palm Beach crowd is very familiar with dirty, unconstitutional “shortcuts”
coming from the SDNY; while Chief-magistrate Vitunac (ret.) saw my “Indictment” as lunacy.


                                               15
from the RULE OF LAW13, in blatant obstruction. The government shall be directed to
show cause on all these issues, and on its understanding and depth of respect for
the Innocence presumption since June 2001.

     Substantial gauges of impartiality are transparency and resolve to resolve.

       To be sure, the District Courts previous gender changing character-expedition
into yet another re-characterization, namely to introduce a wanton gypsy livery truck
into the Interstate Carrier Hall of Fame, has been in vain, and cannot be relied
upon for two reasons: 1) the USCA did not and would not bless a District´s unlawful
effort with approval and 2) did not elevate the trial-room-balloon with supplemental
heat , nor 3) did Branch II even comment or applaud this latest judicial solo-effort,
nor punt or support this Courts extraterrestrial transgression into legal Nirvana.

                      4. On causation and the independent Judiciary

       Movant submits, that he became a pawn, because Warren Feldman botched a
RICO SUMMONS in 97-7167 [RWS], but proceeded anyway to defraud the SDNY´s R.
Workman Sweet to obtain his signature without INQUEST of a defective “RICO default
judgment” against this alien movant (funds Burda Holding stated lately, they were
never entitled to) – maybe the first such RICO scam collaboration with a Senior Judge
against a single person (“Telecommunication Partners” was a fictional defendant
created by Feldman from whole cloth) over who personal jurisdiction could not be
obtained with faulty SUMMONS legal-work.

       Feldman urgently craved Burda´s funds (pilfering the prosecution´s pauper),
and proctor Claus Jander (yet another Clifford Chancer14) told Burda´s Gerd Bolls that

13
  It took six years, but the lawsuit filed after the raids finally ended last week, with a
settlement approved by a federal district judge in New York. Under the agreement, ICE
agents will now have to honor some elementary norms of the Fourth Amendment, which
bars unreasonable searches. Its agents will be forbidden to invade private homes without “a
reasonable, articulable suspicion of danger.” When they have no warrant and need consent to
enter a private home, they will have to ask permission in a language the resident
understands, “whenever feasible.” They must also get permission to enter yards and other
private areas adjoining homes. The federal government will pay $1 million in damages and
fees, including $36,000 to each of 22 plaintiffs.

                                            16
“we at Rogers and Wells make judges owe us” to get the first mandate in May 1006 to
settle with Blumenberg. My prosecution was overdone while a real-world continuing
criminal enterprise went to silence me, to pilfer me, to obstruct my ability to
investigate and to uncover the monumental accounting frauds going on at BURDA
GROUP since 1992 in Germany crafted and executed by Bolls, Schweizer,
Todenhöfer, Hirsch et al that a more thorough spotlight into Blumenberg´s nano-
sized self-invoicing-scheme could have intrinsically blown up the bigger gravy-train, a
much, much larger fraud. Feldman and Jander also managed to scare Burda with dire
NY/US income tax consequences, if truthfulness would rule, but Burda lawyer-liars
accusations against Movant served a “higher cause”.

      Survival of the equity partners, the top law-crooks. Law firm leaders call it a
leveraged pyramid. Most associates call it a living hell. Burda calls it rip-off.

                                      5. AWA Statement



      The principle charge on AWA grounds are: The flawed DISCOVERY, the flawed
TRIAL on bogus theories and suppressed evidence, the surprising DENIAL of the
RULE 29 Motion in view of what jurists of reason view as gross government
misconduct within ample retrospect of corruption and favor-trading, the judicial
conviction without an identifiable victim or interstate mail jurisdiction, a debunked
conspiracy, untenable acts and a money-wire charge tacked onto post 6-18-96
payout date (of $8´120.10) and unconscionable preponderance enhancement for
time-barred “mailings with Lufthansa” at sentencing, plus the post-trial flurry of
DENIALS when this Court faced reversal motions that were mocked with ERROR and
DECEIPT.
      As mock trials go, this was a “well staged” travesty, complete with [ex-parte
proctor] “Warren Feldman inside forbidden Chambers”, and a career-greedy liar-team




14
  Webster Hubbell, a former AK Supreme Court justice and associate AG for President Bill
Clinton, was caught billing clients for time that he never worked. He went to prison.

                                             17
on first row15. Movant experienced the worst kind imaginable for an alien disarmed
by some CJAs.
      See also: “Prosecutors’ dishonest conduct or unwarranted concealment
should attract no judicial approbation.” (Banks v. Dretke, 540 U.S. 668, 124 S.Ct.
1256, 157 L.Ed.2d 1166 (2004))


      A) The AWA provides in totality: “The Supreme Court and all Courts
          established by Act of Congress may issue all writs necessary or appropriate
          in aid of their respective jurisdictions and agreeable to the usages and
          principles of law.”
      B) The AWA was initially codified in the Judiciary Act of 1789 and has been
          described by Justice O’Connor as “the last of the triad of founding
          documents, along with the Declaration of Independence and the
          Constitution itself,” {The Judiciary Act of 1789 and the American Judicial
          Tradition} and by Justice Brown as “probably the most important and most
          satisfactory Act ever passed by Congress.” {New Light on the History of the
          Federal Judiciary Act of 1789, 37 HARV. L. REV. 49, 52 (1923)}.
      C) Section 14, which became known as the “all-writs” provision, contains what
          has been described as “[t]he most expansive and open-ended language” in
          the Judiciary Act. {W. Holt: “To Establish Justice”: Politics, the Judiciary Act
          of 1789, and the Invention of the Federal Courts, 1989 DUKE L.J. 1421,
          1507}. The language grants courts power to issue “necessary or
          appropriate” writs, and thus operates as a gap-filler for the casus omissus—
          the unprovided-for case. {W.N. Eskridge, Jr., All About Words: Early
          Understandings of the “Judicial Power” in Statutory Interpretation, 1776–
          1806, 101 COLUM. L. REV. 990, 995–96 (2001).

      D) The Second Circuit reviews de novo the standards that a District Court
          applied in considering the writ of error coram nobis and reviews for abuse



15
  Gov.-Proctor Justin Weddle in his role as statutory trespasser [see US v.Aleynikov] pre-trial
replaced by Marcia Sue “pants on fire” Cohen armed with ink and pen.
                                               18
            of discretion a District Court's final decision to deny the writ. Fleming v.
            United States, 146 F.3d 88, 90 (2d Cir.1998).


      E) Coram nobis is an "extraordinary remedy" authorized under the All Writs
            Act, 28 U.S.C. § 1651(a), generally sought to review a criminal conviction
            where a motion under 28 U.S.C. § 2255 is unavailable because petitioner is
            no longer serving a sentence. United States v. Morgan, 346 U.S. 502, 511,
            74 S.Ct. 247, 98 L.Ed. 248 (1954).


      F) To obtain coram nobis relief, a petitioner must demonstrate continuing
            legal consequences of the petitioner's conviction. Fleming, 146 F.3d at 90.
            To do so, petitioner must show a concrete threat of serious harm. Id. at 91.


                                       6. MORE ARGUMENT


      Motion for VACATUR and EXPUNGEMENT is grounded, inter alia, upon ab ovo
lack of interstate [§1341] jurisdiction over a non-domestic [rather an international
document deliverance to and inside Germany and other, albeit time-barred, “un-
touchable-accounting document-exportations” abusively relied upon by this Court as
“relevant     conduct”    during   a   still   disputed,   unwarranted     huge    sentence
“enhancement”, which harmfully negated and venomously trespassed the jury
verdict´s sentencing guideline limit of 0-6 months or PROBATION, which the
government carefully coaxed into its SUMMARY as “only one single false Invoice of
$8´120.10 is required for conviction16”. A strikingly false conviction, movant is




16
  The jury requested the “Original Exhibit of AGATE´s invoice” into the jury room,
but the Court acted heedless, and sans judicial attention to precise INDICTMENT
numbers charged in Count §1341, namely $8,120, thus neither a Dime or 10 Cents
more, and permitted a counterfeit Exhibit to be supplied by Deputy Fletcher:



                                               19
seeking to expunge on this basis of multiple Fraud upon this Court, undue process,
and statutory lack of judicial jurisdiction over any international delivery (a domestic
delivery did not occur and was not charged and no Court may feel unbridled by the
presumption against extraterritoriality, a §1341 trespass Congress denied to this
statute over and over) and ultimately, in the interest of justice, a fundamental
protection even PEON aliens deserve in all judicial Districts.




Regrettably, a jejune presider´s disinterest can easily grow into a catastrophic “jury
deceit” when well-identified Branch II gamers – certainly not by mishandling - alter an
EXHIBIT by “INK & PEN JOB”. This FORGERY of the “1996 Original $8,120.00 proforma
voucher BMI self-printed days post-payout (OYEZ: to the §371 “overt Act” ruse) that
was originally supplied unaltered in DISCOVERY to the Grand Jury and presented
during FBI´s O´Sullivan Grand Jury testimony. This KEY unaltered document was
used by Harris/Weddle as BASIS in their “mail” COUNT”. Sadly, the Jury was turned
dupe in their room as a now altered EXHIBIT [a Dime more to “match a pre-issued BMI
check] was slipped inside to mislead and game for a “WIN at all costs”. Despite
dubious unsworn denial, Branch II proctrix COHEN or O´Sullivan, were the Dime-
forger [according to creditable witness accounts) intending the Dime-Con to
underpin a false Jury believe that “Agate´s proforma bill” caused the subsequent
Check payment, when, in fact, the “original Agate amount was below the check
amount $8´120.10“ [for the plain reason that the “Agate-print” was produced by
BMI´s staff after-payout as Kiefer stated] to cover BMI´s bookkeeping games, albeit
– inadvertently - with a “DIME” below the printed TOTAL [no cents here]. That fact
well voiced at trial, Cohen punted on to mislead the Second Circuit away from her
rotten tracks: In 03-Appellee´s Brief on page ___ , Cohen falsely states: “03-----
Zeitplan”

                                            20
      That some Federal judges utterly disrespect Juries and unwisely rely upon
amoral and dubious “intrinsic” powers to surpass Jury verdicts during sentencing is
ample proof that no Hamlet smell in Denmark was as foul as that smell in America.

      May it happen out of unholy alliances, out of honest oversight in overdone
respect for the Captioned or out of protective instincts to spare branch II
embarrassment, defeat and recompense, not to forget sparing them from a
incriminating response to incontrovertible arguments that could easily tear down the
last veneer of a “Ministers of Justice” function and lay bare a nasty criminal
enterprise, a conviction-incarceration machinery all for the ultimate goal to maintain
underserved power over individual targets and install fear.

      An INTERSTATE mailing between two states is the actual criminal act, but
where, why and how was that furthering a method to embezzle? Circuits have long
emphasized that the responsibility for determining the factual sufficiency of fraud
allegations remain with the fact-finder. In this case, though, the allegations against
Blumenberg et al simply contain no indication of the elements the mail fraud statute
required.

                           Vanitas vanitatum omnia vanitas.



Since June-18-96, Defendant VIERTEL already possessed $8´120,10 which (at a
  dime less at $8´120) he was incomprehensibly convicted to have schemed to
            acquire by mail and wire frauds, both “acts” dated afterwards.

      It is still highly noteworthy – particularly to this coram nobis Court - that BMI
honored its 6/18/96 check-payment of $8´120.10 without contacting the
Payee/Endorsee, Agate Realty Corporation, for a dispute/refund. If, arguendo, BMI
had taken a position in June-July-August-1996 that the check could have been issued
a) in “error” [it was not], or b) under false pretense [it was not, BMI retro-printed its
own pretense] or c) was “otherwise” reversible.




                                             21
        BMI maintained the “general overhead” classification on its books, maintained
subaccount and safe-kept its original BMI printout of the Agate transaction [Maginot
testified he hand-carried the Agate document 7/19 in his carry-on back to
Schutterwald on Lufthansa] for an ongoing audit by Maginot/Flatter. BMI passed that
review with flying colors, and Burda GmbH, Germany, its sole shareholder, had
obtained 500´000 German Marks as a “refund” from Fritz Blumenberg on July 15,
1996, which did specifically include BMI´s intramural-Agate transaction for
$8´120,10 and probably other tainted disbursements by BMI´s Blumenberg/Kiefer
team.

        The simple fact, that N.Y. Banking law permits reversal of check-payments for
almost any reason (“other”/”endorsement”/etc) for a full 3 months, meant a term of
two months post-Blumenberg-resignation and refund by its CEO.

        BMI did knowingly and willfully took no action to bounce and can´t “run and
cry wolf” to Mary Jo White in May 2001, five years later.

        Furthermore, by sufficient and repetitive mandatory Court Notices this Movant
evidenced since 2004 [incontrovertible by proctor-team Harris/Cohen] that BMI could
not and did not act to mitigate a “loss”, because BMI was without loss at all times.
BMI was a net-gainer on its own Agate intramural transaction, without involvement,
approval or collaboration by the Movant, who, under any light, cannot be accused of
a motive to fudge with BMI´s books.

        This Court is very well aware, that Blumenberg BMI´s CEO owed a small
mountain of debt to Viertel [and still does today claiming poverty ], but whether
Blumenberg violated trust by causing his dependants to pay off part the debt with
corporate funds, remains a totally captive corporate issue (as a German criminal
violation of TRUST, he was convicted in 1998 to ONE year probation].

        That is the only immaculate TRUTH and no DENIAL can stand anylonger!
        Subsequently, that generic payout [the Agate paper was not created yet] was




                                           22
neither in error nor a fraudulent scheme, as BMI´s silence and inaction attests17, as
BMI´s disinterest in an utterly immaterial expense (0.001% of gross) attests. BMI was
content that their intramural “Agate-transaction” would and did eventually raise their
earnings via its margin-profit-formula by a factor of 2.2(x), grossing BMI about
$17´500 from its 25+ satisfied Clients of BMI´s Media Services, whose dinghies were
left intact. Also, a “counterfeit” ratio of 5% at BMI morally trumps Rogers-Wells-
Clifford Chance´s counterfeit billing ratio of 45% [confirmed by informed insiders,
clients seeking claw-back, and by BMI].

              Any paranoid Court must ask: Aren´t the real crooks on First ?

        Not a wire scheme to deprive a victim of a property right that is vested, 1
under the prosecution theory, the property was not BMI´s , nor was it reduced by the
alleged scheme. No harm, no crime. Future harm, highly potential, is inapplicable,
and the BALANCE issue is flatly wrong, confirmed by Kiefer, who couldn´t even say
what checking-account-balance-formula had triggered the wire request. It wasn’t the
balance: also there was no materiality to be found, a requirement under McNally.

        Kiefer stated flatly that she “doesn´t know which expense caused the wire on 6-
        20-1996”. Who can believe that a $8,120.10 check-debit caused havoc and
        fears of poverty in that Chase account (there was no online banking in 1996 at
        Chase), when on that same day $85+K worth of checks hit Chase, but:
        proctrix Cohen (not Kiefer at trial) claimed the “drawdown-effect” at my
        criminal expense and my super-natural-magical trigger powers for funds to
        safely arrive afterwards :
                  CHASE End-of-        Debits       115% avg. BMI     Loss to   Loss to
       Date
                   Day Balance        (Checks)      Earnings/Margin    BMI       U.S.
     6-18-1996     $383.231,28       -$62.865,51       $72.295,34      $0,00     $0,00
     6-19-1996      $356.169,43      -$27.061,85        $31.121,13    $0,00     $0,00
     6-20-1996      $270.658,67      -$85.510,76        $183.848,13   $0,00     $0,00
     6-21-1996      $161.911,71   -$108.746,96          $125.059,00   $0,00     $0,00
     6-24-1996      $476.754,30   $314.842,59           $40.413,77    $0,00     $0,00


17
 much stronger than the mumbo-jumbo of peon witnesses the government coached and
exhibited during its mock-trial
                                                   23
      The argument was made about “getting the account back up”, now let us
review the real numbers. The jury´s REQUIRED finding that the wire mail were in
furtherance are now GONE, also because pouring $350k extra into a Chase balance
(above) is hardly furthered by a $8,120.10 check 18. Nor can a international mailing to
an uninvolved third party, a subcontractor, do federal tricks.


                                       Fiat ut petitur


18
  The Court shall recall that the “Agate Reality Media Services” invoice was rather unique BMI-
self-styled printout to paper over a disbursement Blumenberg ask Kiefer to absorb into
BMI´s overhead. Movant was uninvolved outside the country in France. For one thing, it was
the only one printed up in that company name. Secondly, it was another one made out to a
totally fictitious corporate name (Agate Reality was the creation of Blumenberg’s active
imagination while Agate Realty was the name of a real estate holding company owned by
Mr. Viertel), similarly to TelCopa, Eurocast USA and other printed as look-alikes. And finally,
when Kiefer cut a $8´120.10 check to pay Blumenberg´s handwritten note, Kiefer did just
that, she cut a check against an handwritten order from her boss Blumenberg:




                                                               ,
Kiefer stamped the handwritten requisition “PAID”, because she did not have any other
“invoice” when she issued this check. There is, logically, no invoice number marked on check
86407, confirming the nonexistence of AGATE “GX 501” document at that time (five days
later Kiefer backdated her PAID-Stamp for what became a “tamper-free” GX 501). Although
there is no testimony that Movant did pick up this check – he did not - the check deposited-
properly endorsed per NY banking law - into a real Agate Realty’s real Chase account in
partial down-payment of a revolving debt Blumenberg owed to Movant, a fact repeatedly
declared and left unchallenged , under oath and sworn in Germany, including to a Grand Jury
on 6-6-2002, before Movant´s mock trial. There was no evidence at trial that Movant asked,
knew or ever discussed that or whether Blumenberg submitted self-designed “invoices” to
BMI in order to reach checks from Kiefer for the down-payment of his debt owed to Movant,
nor was there any evidence at trial that Movant knew Blumenberg was creating, printing and
submitting numerous pro-forma invoices over years to a compliant Kiefer, a direct
dependent of the CEO, against CASH Kiefer procured from BMI´s Chase account to fund his –
admitted - private shopaholic and divorce paranoia.


                                              24
        The Court shall exercise utmost prudence in directing the government to
RESPOND and not to AVOID before deciding this PETITION.

     a) The federal government’s authority to charge material pecuniary fraud claims
        require a fundamental prong: FEDERAL JURISDICTION which also requires the
        showing of INTERSTATE COMMERCE. Also required are venue and a local loss
        by a “domestic” complainant (a “referral”). Upon review of corporate
        documents, the government found neither, because the conduct was
        international in nature and lacked a genuine local victim. The official efforts to
        fabricate under Color of law commenced.


     b) The government supplicated an entirely untenable “micro-economic theory”
        pursuant to which a “thirty plus year old New York domestic business
        corporation, named Burda Media Inc.19 conducted entirely “charitable” news-
        gathering just like a “hobby” from luxury headquarters in Rockefeller Center.
        With a staff of 30, this $6+ million output-worthy Burda Media Boutique was
        colored to be hailed by the government as a “Not-for-Profit” outfit, despite lack
        of a charitable business license and a corporate NFP resolution to fit. Rube
        Goldberg, Esq. helped prepping these machinations for a Grand Jury.
     c) The interstate commerce aspect of this case arises as the main prong of
        section §1341 offense. If that prong cannot be satisfied – and here it is
        unreachable - then all three defendants are not guilty. A nolle prosequi of just
        one out of three – a hand picked, lawyered up, rich American– is
        unconstitutionally unfair.




19
  a 100% subsidiary of a non-disclosed German corporation, uncomfortable for the
prosecutors, which was later discovered to have been Burda GmbH, holder of all 200 “no par
value shares” issued January 27, 1978. Burda Holding GmbH & Co.K.G. held no shares at any
time, while it remains in the dark when the government decided to “botch” this material fact
other than for clueless reliance upon foreseeably worthless advise by biased fellow bar
members. The government often mistakes high hourly rates for integrity.

                                             25
     d) d) Also, a legislature could not plausibly be understood to have used the
        specific term of “interstate” [without any other description as in §1343, or like
        “foreign” or “international”] if it had not meant to refer only to the specific
        domestic boundaries of interstate carriers, couriers or transporters, like the
        USPS, over which Congress does have dominion. Congress well understood
        that it holds no authority over the Universal Postal Union [www.utu.int ] which,
        as a United Nations agency, manages exclusively international mail matters for
        191 member Nations from Bern, Switzerland. “This is not a circumstance,” said
        Laurence H. Tribe, a law professor at Harvard “in which the courts have any
        plausible point of entry.”


     e) Idea for the Court: FOCUS ON FACTS NOT ALLEGIANCES
        Too much unnecessary drama resulted from bad math, ink and dropped
        numbers, reports, summaries and audits and, MOVANT submits, that an
        ACCUSATION followed by TRIAL is not a game of chance but a game of
        accuracy, during which the Court´s benchwork must be kept free of
        whisperers, An idea worth pondering as a courtesy to the bench.


              Therefore the district court had no, and will never have §134120
              jurisdiction under 18 U.S.C. §3231 et al.




20
   The federal mail-fraud statutes are "our Stradivarius, our Colt .45, our Louisville Slugger,
our Cuisinart—and our true love," wrote former Assistant U.S. Atty. Jed S. Rakoff. "We may
flirt with [other laws] and call the conspiracy law `darling,’ but we always come home to the
virtues of [mail fraud], with its simplicity, adaptability and comfortable familiarity," Rakoff
wrote. "It understands us and, like many a foolish spouse, we like to think we understand it."
And sometimes, nobody does. More by Rakoff: “I don't have any respect for judges who
arrive at the result first, and then try to figure out some way they can bend the law to reach
their particular predilections.".


                                              26
                                        7. MORE LAW



      “On every writ of error or appeal, the first and fundamental question is that of
jurisdiction, first, of this court, and then of the court from which the record comes.
This question the court is bound to ask and answer for itself, even when not
otherwise suggested and without respect to the relation of the parties to it.” Great
Southern Fire Proof Hotel Co. v. Jones, 177 U.S.at 453. And : The requirement that
jurisdiction be established as a threshold matter “spring[s] from the nature and limits
of the judicial power of the United States” and is “inflexible and without
exception.” Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 382 (1884).


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


      "The federal mail fraud statute does not purport to reach all frauds, but only
those limited instances in which the use of the mails is a part of the execution of the
fraud, leaving all other cases to be dealt with by appropriate state law." United States
v. Schmuck, 489 U.S. 705, 710 (1989) (quoting Kann v. United States, 323 U.S. 88,
95 (1944)); accord United States v. Coachman, 727 F.2d 1293, 1302 n. 43 (D.C. Cir.
1984) ("The offense of mail fraud demands proof of a scheme to defraud which, at
some point, is intentionally furthered by use of the mails.").United States v. Alston,
609 F.2d 531, 538 (D.C. Cir. 1979) ("For conviction under the mail fraud statute, the
mails must be used 'for the purpose of executing' the fraudulent scheme, and not

                                           27
merely 'as a result of' such scheme.") (quoting Kann, 323 U.S. 88), cert. denied, 445
U.S. 918 (1980).




                                             8. CONCLUSION


          Therefore, this Court shall declare itself in lack of – AB OVO - subject matter
jurisdiction under art.III, §2, 18 U.S.C. § 3231 et al. over the charged conduct and
over non-domestic events which plainly did not arise from violation(s) of 18:§1341,
371, 1343.


                  Hypothetical jurisdiction is no jurisdiction at all 21.


          Therefore, MOVANT respectfully submits that the COURT eventually grant the
coram nobis PETITION, also because allowing several statements to be made, the
Court knew were false, and allowed its own Mr. Fletcher to carry a corrupted AGATE
GX 501 exhibit into the jury room and the Court did not interdict the government to
present falsities and fiction to the Grand jury (transcripts were on hand,
compromising Harris and O´Sullivan) and allowed the Petit Jury to be exposed to an
"alternate, highly fabricate version conflicting with reality," and allowed the jury to
falsely conclude that the prosecution were not the liars they were. The grant shall be
in its entirety after a formal response by the government has been received and
Petitioner´s REPLY has docketed, and additionally undertake a thorough “INTERNAL
INTEGRITY REVIEW” whether " the basic integrity of the trial was corrupted" or
alternatively, designate a competent, authoritative impartial INSPECTOR who is far
from the vicinity to either Branch to conduct such 1) review, 2) internal audit and 3)
anti-corruption risk assessment and 4) to what degree Branch II acted in contempt of
Court, thus, report upon each of the unresolved issues, before the Court decides
these issues and before the coram nobis ERROR review concludes.

21
     Such adjudications are “ultra vires” [Scalia, J.] in Steel Co. vs Citizens, 523 U.S.83(1998)


                                                   28
             The request respectfully includes an exercise of its ancillary jurisdiction
to expunge Movant´s criminal records, which flows from the congressional grant to
hear cases involving offenses “against” the United States [whereby it is Movant´s
position that the Court lacked jurisdiction AB OVO] pursuant to 18 USC §3231, and
to order expungement of the criminal records, including those held by Branch II, the
NCIC, the BOP and its custody records, the ICE and DHS records (including clearly
falsified ICE records pertaining to Movant´s removal proceeding, copy of which are
available to this Court under seal), and also expunge Movant´s classification as
“predator22”, inter alia, to “preserve basic legal rights”, see also U.S. vs. Schnitzer,
567 F.2d 536 (2d. Cir., 1977) (court has equitable authority to expunge).



Respectfully submitted and sworn to as truthful statements by this Petitioner under
USC28:§1746 on this 9th day of April 2013, pursuant to CA2 Mandate of 4-5-2013
[898588]




                                 Movant, Petitioner pro se
                                 9/18 via delle Ballodole, 50139 FIRENZE, ITALIA
                                 Tel: *1 360 227 6326 / Fax: *1 801 346 7954



Service Confirmation for this submission:

      by e-mail: U.S. Attorney SDNY Preetinder Bharara

      Consulate General of the Federal Republic of Germany, New York

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


 ICE´s public press spokesperson „Nina Doe“, D.C., designated Movant as a “predator” to
22


mislead Germany public TV network and to intentionally libel Movant.

                                             29

								
To top