Impartiality Test by ProfessorViertel


									                                 United States District Court
                                For The Southern District Of New York
----------------------------------------------------x   (fax to Chambers @ 805-** on 5-14-2013 & mail)

UNITED STATES OF AMERICA,                                           03 Cr 00571 (JGK)

                                    Plaintiff,                          [08 civ 7512]

                                                            MOTION FOR 3 ORDERS TO SHOW CAUSE

  v.                                                           in compelling SUPPORT of a remanded
                                                                 Petition pursuant to the All Writs Act
                                                                          during the pendency thereof


 JOHN C. LEE,                 exclusive Nollee                      [for publication ]


         Upon the Court´s direction, the USANYS was ordered to RESPOND to this
defendant´s AWA Petition.

       Regrettably, the USANYS failed [albeit timely] to reasonably produce such
RESPONSE to the issued raised by the AWA Petition, but has, alternatively, resorted to -
familiar - avoidance therapy harped with the apparent intend to further obstruct justice,
misguide and deceive the judicial process and show contempt for this honorable Court, by
further abuse of the judicial process and by further putrid, if not intentionally corrupted
argumentation, which cannot be permitted nor can it be supported by any reasonable fact-
finder, any reasonable jurist or by a Court in lucid possession of evidentiary elements this
defendant has filed since 2004, all of which remained uncontroverted and rendered this
[nut-]case a blatant USANYS fabrication in favor of a shebang of hourly schemesters –
fellow “officers” of this ⌧Court - to the wholesome detriment of the clueless taxpayers
in the Southern District of New York, and of this defendant and his family.

1) The unresolved problem here remains unchanged, in that the USANYS changes “bib
   and tucker” garb each time they offer a new pretense (intra and record) for their own
   out lawful creation of a defective charge, foul at that, by inapposite use of the domestic
   §1341 law, an off-outer-limit Criminal Code, as amended, that Congress wanted to

      exclusively control INTERSTATE mails or INTERSTATE carriers deliveries that could
      inflict harm upon on-shore American victims in another state of the Union. The law
      does not, should not, cannot and won’t protect aliens or non-American consignees in
      foreign lands via international air freight (as was factually charged in 01-571Count
      8=3, see Appendix, intra).

                            In fact, USANYS´proctors had no clothing,
                   they were nude all along, just like Andersen´s Emperor ,

            “invisible to those unfit for their positions, stupid, or incompetent”.

2) In order to permit this Court to make the necessary AWA integrity review with any
   meaningful, lawful and sustainable outcome, Defendant moves hereby, pro se, for 3
   ORDERS to SHOW CAUSE, orders which have a reasonable chance of establishing
   plaintiff´s standing, the USANYS´ current and prior positions and conflicts over the
   jurisdictional interstate element of the mail fraud codex, plaintiff´s true or false
   injuries, if any, and permit the Court and the SDNY public to gauge and weigh whether
   plaintiff acted previously in bad faith, how many times over, and whether the USANYS
   continues obstructive tort patterns to date.

3) The THREE SHOW CAUSE ORDERS are required, sine qua non, to compel the
   USANYS to produce either verifiable evidence, if any, and/or valid legal arguments
   supported by true law to permit for this AWA-INTEGRITY-REVIEW phase during the
   ongoing adversary process to come to a worthy, logical, lawful, indisputable and
   honorable conclusion, whether the exclusive properties of the INTERSTATE element
   of the Mail-1341-Code were met, were properly and lawfully investigated, not deep-
   sixed, and presented first to the Grand Jury without a ham-sandwich-deception, then
   upon this defendant, then upon this this Court whose “jurisdictional accoutrements
   they were desiring” , then the Petit Jury and the Appellate panels to rely upon without
   fraudby branch 2, or, whether the USANYS holds “interstate” as a secret hood-winked
   trump-card, as their exclusive fiefdom freely expansive at their power and will.

    “Kejserens nye Klæder“, Eventyr, fortalte for Børn. Første Samling. Tredie Hefte. 1837
  Jury foreman Bernhard Rehm confirmed that the grand jury was kept in the dark over interstate issues,
which are really the one fundamental criteria for a Grand Jury, and he felt, as often, bulldozed over
“…more than a decade ago, but a young nail-biter-lawyer seemed a tad too nervous for my taste,
something had to be fishy, because most often witnesses are in shambles, not prosecutors… ”.

4)   Therefore, let them FIRST SHOW CAUSE: how the government (S/A O´Sullivan, we
     can presume) investigated, deposed or not investigated and not deposed persons with
     knowledge whether:
     a) “Apex airfreight systems Ltd” was a Delaware domiciled shell corporation ( see
        Appendix, intra),
     b) Apex´s NY “rep” Mr. Howard Barmard, described the services Apex rendered,
        whether lawful or not, and what entities, foreign and domestic Apex served,
     c) Apex rose to become AGENT of foreign carrier Lufthansa German Airlines,
        with explicit authority to issue international air transport documentations,
     d) Apex collected fee & commissions from Lufthansa, but not from Burda Media
        (10% IATA, as marked on airbill),
     e) Apex exclusively used the Agent Code issued by the International Air
        Transport Association of Geneva, Switzerland and Montreal (33-5-3698/013),
     f) APEX registered elsewhere as an interstate carrier within the regulations of
        the Transportation Department of the United States, or did not register,
     g) Apex was unlicensed on 6-28-1996 oto transport goods as a bona-fide
        interstate carrier across state lines under CFR regulations,
     h) the government ascertained or not that Apex held a valid business
        license from the State of New York to operate a transport business for hire, and
        whether Apex was hired on 6-28-1996 by any entity owned or controlled by Burda
     i) Apex transported other stuff on 6-28-1996 apart from the licensed export shipment
        on LUFTHANSA for which it produced carriage papers for EXPORT

5)   Therefore, let them also SECONDLY SHOW CAUSE: How an INTERTSTATE
     CARRIER, private or commercial, is able and empowered to deliver “goods” to a
     foreign destination, namely to Germany, and to demonstrate how, if such a
     transportation would be possible, whether such a transport infringes on the
     immaculate domestic mail reservoir Congress protected with §1341, and how the
     United States´ legitimate concerns for a fraud-free mail transport system were
     violated, when things, matters or stuff fly away to a foreign destination, like in this
     case by the international carrier Lufthansa licensed to carry goods and persons
     between i.e. Liberty Airport, JFK, Boston and Frankfurt on 6-28-1996.

6)   Therefore, let them also TERTIALLY SHOW CAUSE: whether an (U.S.) export
     licensed commodity shipment prepaid by and on behalf of LUFTHANSA by its own
     AGENT “Apex Air Freight systems Ltd” on W30th Street in Manhattan to Munich,

    Germany, consisting of 34 kilos of paperwork on 6-28-1996, was an INTERSTATE
    transport, and whether Munich or Offenburg, Germany are within one of the 50 United
    States to be considered an INTERSTATE destinations, or are unreachable by §1341.

7) The defendant submits that the original fundamental defect was, inter alia, Count 8=3
    charge, which, like many classic jurisdictional VOIDs over charged conduct, where
    presented to a clueless Grand Jury, and an error prone District Court who seemed in
    dire want of juridique powers, and who received “in-chamber-talk and support” from
    other Court officers, to waive concern over such defect and to bury it, despite being
    effectively mistaken, because these type of jurisdictional defects are never ever
    waived or cleared, could never be too late, or tossed out under the “tough luck
    scheme of 2255 et al” or blocked by law of the case.

8) It was Hon. Scalia in Morrison who CLEARIFIED resoundingly in 2010, and carries a
   big stick. The USANYS´ proctrix shall gauge “Scalia vs. Crotty”, who wins in the end?

                   "ignoranti quem portum petat nullus suus ventus est."
                               (Seneca to Lucilius, VIII, LXXI, 3)


       In the May-8 “Response”, the USANYS fails to state a sound explanation for the
INTERSTATE character and attributes of its blunt “DELIVERY TO GERMANY” charge
No#3 which could clarify the discrepancy over the USANYS´ previously adopted position,
namely that Hon-Judge Crotty (09-662) got it all perfectly figured out, and that §1341 is
also another law that can reaches overseas, if only the USANYS wishes so, despite
Scalia´s teachings to the Second Circuit in Morrison, “that ain´t so”. A specific question
over the applicability of domestic laws to – in certain cases - reach international conduct
(the additional criteria of American victims overseas left aside) with which two Second

 In its May-8-13 “Response”, USANYS-Bharara-Cohen dropped an earlier mid-2012 reliance upon Hon-
Crotty´s dubious pro-career-wisdom, which is now safe on its hearse to the cemetery of mistaken believes.


Circuit panels in Vilar [CA2:10-521] and in Mandell [CA2:12-1967] grapple, both having
given some clear indications “how substantial” territorial jurisdictional limits can be.

      Furthermore, the USANYS now, somehow measly, attached its torn flag to an –
equally inapposite - flagpole this Court erected – and which was not at all reviewed by any
appellate argument or opinion, and which, seeks to top lunacy – by a sudden claim - that
Newark Airport was really, truly, no-kidding the ultimate foreseeable destination for the
criminal mailing caused by defendant´s [albeit not by Lee, who was exculpated from
foreseeability accusations and had the best lawyer in town].

                 "non est magnus pumilio licet in monte constiterit."
                           Seneca to Lucilius, IX, LXXVI, 31

      The District Court dropped this sudden bombshell, which consequently and
logically – under its “personal robe-saver but branch-cutter” claim for a “private JGK
signature version” of §1341, offers and proposes a clandestine traffic split that
transmogrified on 6-28-1996 during an officially “U.S. licensed commodity transport for
the ultimate destination GERMANY” into a two-legged, back-to-back ONE-WAY transport
affair, just as a type of parthenogenesis. Defendant rejects this proposal.

      It represents an amazing phantasm, that renders the EXPORTERS=Shippers
declaration, as stated in the substantive airway-bill (Appendix intra) issued by Lufthansa,
binding. Once a transport is licensed for EXPORT it is no longer in domestic carriage.

   a) Besides the fact, that none of the newly crafted judicial pretentions were
      established below, found at an earlier time in the record, or in a manner that
      criminal defendants would have been able to exercise their constitutional right to
      confrontation (of the gypsy livery van or of Lufthansa), nor could be viewed as a
      Constructive amendment of the mail charge a decade later by the presider,
      amending what was international to Germany into Interstate to Newark, and that,

       intrinsically, throws the try and the crime elements and theory into the gutter. The
       new judicial version Is without merit4.

    b) Foreseeability OUT THE WINDOW: that additional defect not to have any Hudson-
       crossing evidence to chew on was, fatal though, auto-inflicted by the Court´s
       honorary self on 7-15-2002 in its DENIAL of a BILL of particulars, which would
       have included the BILL OF LADING and the AIRWAY BILL, which would have
       exposed exact GPS tracking features of the 34 kilos of packages, and could have,
       most likely, invalidated the USANYS claim to prévoyance by the German Defendant
       [probably sunbathing on 6-28-1996 in France next to his huge piscine, a fancy
       accoutrement the USANYS unsuccessfully sought to smear this defendant for our
       peerless and middle-class jury). Brecht´s basic rule applies: When an [Art. III]
       Judge really believes that a “set of Bunny-Ears could make a play-girl”[ and that
       four worn tyres can make an interstate carrier out of gypsy livery van], the
       “greatest power on earth” is poorly staffed to respect the country´s laws, without a
       frog to kiss.

    c) The law is clear for a while, but the USANYS prefers to vindicate laws the wish they
       had, rather than the ones on the books: "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)

       Actually, this defendant presents below an almost classic dichotomy arising from
       the District Court´s new “mail usage” THEORY versus earlier USANYS positions:

4 Arguendo, if in such a new two-legged scenario proposal could ever exist, a criminal mail act would
depend upon whether the gypsy livery van finds the Hudson tunnel blocked and diverts to Route 2, via the
Third Avenue Bridge to the LIE to reach JFK and to Lufthansa´s departure terminal in the USANYE Queens
section of the State of New York, no state-lines were crossed, no §1341 violated, and no trial and
conviction would have taken place. Obviously this hypothesis further invalidates the District´s cop-out.
 “07/15/2002 55 OPINION AND ORDER# 87156 as to Christian T. Viertel /// under 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 Judge John G. Koeltl; Copies mailed. (jb) (Entered: 07/15/2002)”

ONE: The USANYS (Professor J.Weddle of Aleynikov fame) stated on 4-05-2002
during Blumenberg´s guilty allocation [@ 245UBLUB pg 51]:

TWO: A few years later, on 3-24-2004, USANYS´ crackerjacks Kelley-Cohn-Neiman
forged another version on page 6/7 in brief 03-1364 to swindle the Second Circuit:

      “2. The Use Of Mails And Wires To Further The Scheme: Burda
      Media, the direct victim of the fraud, had no revenue of its own. It
      served simply as the New York press office for Burda Holding, a
      magazine and newspaper publisher in Germany. Burda Holding funded
      Burda Media by wiring money from Germany to Burda Media´s New York
      bank account whenever that account fell below a certain level. To
      document its expenses, Burda Media on a monthly basis transmitted by
      air freight its paid invoices from New York to Germany. Thus, the
      fraudulent invoices created by Viertel and Blumenberg were, sent by
      interstate carrier from New York to Germany. Similarly, regular interstate
      wires from Germany to New York, funded the payments…///...the scheme
      could not have continued and succeeded without these wirings and
      mailings. Burda Media lacked the funds to pay phony invoices but for

             the wires from Germany, and the German parent, Burda Holding, surely
             would not have continued to replenish Burda Media´s accounts had it not
             the regular mailings containing the invoices documenting Burda Media´s

                            (Internal references omitted; brief´s pages in Appendix intra).

       Apart from the obviously pathological governmental fascination above, actually a
serious type of paranoia to be impotent, thus the harping of the term “interstate”, a term
the USANYS doesn´t find weighty any longer (in its meager 2013 response downgrading a
key element of the domestic mail law and in violation of Morrison), the fallacies presented
to the Circuit are simply mindboggling, especially when the statements are compared with
a truthful account given by the former CEO of Burda Media:

Therefore, Movant prays to grant an expedited ORDER TO SHOW CAUSE detailed above
primarily in the interest of justice, to meet the ends of justice and to enable a reasonable
AWA Petition to remain within the due process terms afforded by the Constitution of the
United States but without regard to consequences, to relevant conduct, and his alienage.

Respectfully submitted this 14 day of May 2013

                                    Christian T Viertel, MOVANT pro se
                                    9/18 v. delle Ballodole Firenze, ITALIA I- 50139 -
                           N/A Tel +1 360 227 6326


Copies of this submission were emailed to USANYS Preetinder Bharara, Esq.,
and to the SDNY Pro Se Clerk.

   a) Indictment 01 571 (excerpt)
   b) USANYS brief to the USCA (excerpt)
   c) Apex corporate information DELAWARE
   d) AUSA Weddle on INTERSTATE
   e) Lufthansa Air Way Bill for 6-28-1996
   f) Jury Instruction 25) on MAIL FRAUD

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