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  • pg 1
									                           United States District Court
                             For The Southern District Of New York

-------------------------------------------x      (fax to 805-7912 Chambers Oct-30-2013 & pro-se-mail)

UNITED STATES OF AMERICA,                                     (03) 2001 Cr. 00571 (JGK)
                                Plaintiff,                        08 Civ. 7512 (JGK)

                                                  CONSIDERATION DE NOVO MOTION FOR DELIBERATE
                                                  FAILURE TO IMPARTIALLY ADDRESS §1341’S
                                                  JURISDICTIONAL PRONG ON CA2 REMAND [12-
                                                  231]; MOTION FOR NULLIFICATION OF A
                                                  MERITFREE, SELF-RIGHTEOUS AND PHARISAICAL
                                                  HAIL-MARY-OPINION MANIFEST IN ADVANCED
        v.                                        COGNITIVE IMPAIRMENT OF U.S. LAW & BY
                                                  HUBRISTIC1COLORING DUE ANGST FOR BRADY 2.0
                                                  & FOR ONE “PHANTOM MAIL” & CRIME-FREE
                                                  CARRIAGE BY LUFTHANSA AGENT APEX AIR
                                                  FREIGHT WHICH THE USANYS GARBED AS A BOGUS
                                                  INTERSTATE “WINK-WINK” CARRIER TO FOB OFF;
                                                  MOTION FOR VACATUR NUNC PRO TUNC; OR,
                                                  ALTERNATIVELY, FOR UNBIASED EVIDENCE
                                                  HEARING ON [LACK] OF §1341’S THIRD
                                                  JURISDICTIONAL PRONG BASED UPON GRANDJURY
                                                  RECORDS TO BE HEARD ONLY BY AN UNPREJUDICED
                                                  COURT UNCONDITIONALLY COMMITTED TO FOLLOW,

JOHN C. LEE, (nolled)

CHRISTIAN T VIERTEL,         Defendants                 [published: __ __]

        COMES NOW, Christian T. Viertel, Defendant – maioris pro se – respectfully prays,
signals, summons and urges this Court to “Consider de novo” , more pointedly to CONSIDER
21 @ 08-7512) on the guiding principal, that a FEDERAL COURT is deemed to foresee that

    ὕβρις : Aeschines Against Timarchus, where defendant Timarchus stands accused of
breaking the law of hubris by submitting to prostitution and buggering. Aeschines
sought to bar Timarchus from the rights to political office.[Thomas K. Hubbard]

frequent-filer Plaintiffs like UNITED STATES, game “their” Courts [the ogre does what ogres
can], have no pang to alter facts and exhibits, brand fugitives from whole cloth, disrespect
the Brady-Miranda- Apprendi-Morrison line of cases, and dupe Grand and Petite Jurors, while
coaching and luring witnesses with secret rewards. Branch II has established a history of
polluting Bench and Justice, worry-free, it seems. This Court conformed to pollution,
allowed facts to be poisoned. This Court furthered pollution for its own reasons, hardly
legitimate. The Court made up 137 flavors to DENY attempts to uncover this pollution. Now

      This was massive joint government pollution, rather than the “massive mail-crime-
Burda foreign scheme”, and it did not biodegrade, it flourished locally, intrastate chez
Moynihan. Thus, this Defendant reasonably requests a LEARNED REPLACEMENT OPINION, this
time not wholly merit-free, not patently manipulative, unpersuasive and not in pretense of
reputational judicial assets, long dispensed. Any such de novo OPINION shall consider the DE
304 “Fourth Cause Order Motion”, and DE 306 “Judicial Notice of Law”, including this
instant MOTION for forthrightness and honorability taking §1341’s words by word under
mandatory2 advisory, to arrive at a statutorily construction-proof result, unaltered law on
floor 12, and under careful review of plaintiff’s §1341’s charge language, not constructively
amended or beautified, word by word [Klieg-lights on “international”], and must be in
respect of MATERIAL FACTS, including that an only not-time-barred “routine mailing” of 34kg
Press-materials truly left Manhattan for Germany, albeit WITHOUT3 the June-96
Kassenbericht-documents which were HELD BACK UNDER ORDERS received from Burda’s

   No “private signature versions” of any U.S. law exist, although abuse by
U.S. Spin-Meister Courts who willfully misread, mal-characterize many a
Federal Law are notorious, as here in 01-571, were Weddle was anchorman. See
also CA2 11-1126 /Hon.Cote’s blunt abuse, favoring cash-rewards for BOP.

     The Court’s biased, unsupported TRIAL RUSE: “Was a fake Agate bill
shipped as charged original or as a copy” by APEX AIR FREIGHT?”, furthered
the hogwash and the judicial travesty and abused not real but fictitious
discretion, because discretion is incident to jurisdiction, learned jurists
of greater reason can confirm to this Court. And so is Sentencing.

German staff, and, these 34Kg were PRESS MATERIALS ONLY, and NEITHER BUSINESS
DOCUMENTS nor CO-MAIL [see also AIRWAYBILL]. They were exported without legal
STOPOVER in Newark Airport or JFK.

    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.den. 456 U.S. 929 (1982).

         Lebovitz instructs this Court to safe judicial resources by dropping incantations of
prior, slanted and dubious “opinions”, as “Law of the Case” doctrines never survive in a
TOTAL VACUUM of subject matter jurisdiction. Clerks can use a break from the high-floor

        This Court seems to practice a CRAFT reserved for Guantanamo Bay, Cuba, that

           remains inoperative in his own Southern District of ceremonial induction.

         Preliminary Statement on AWA Testing: DUE PROCESS, fail or pass

       The scope of a true AWA review for ERROR coram nobis duly covers a Court’s sober
      atonement without [xenophobic] blanco recertification of its own judicial conduct as
      immaculate. Faced with binding incontrovertibility over BMI-Kiefer`s June-96 REPORT
      which was a cogent consequence reacting to bogus payouts Blumenberg just created.
     Kiefer embargoed all June 96 records for local NY inspection4 by inbound forensics from
           Munich and therefore, these “bogus” records (Agate, Best Messenger, et al)

  The week-long inspection at BMI, beginning 7-9-1996 was notably pricey due
to ritzy attendances by Court Officers Pomerantz, Feldman, Anderson from
caliber firm Rogers & Wells marking territory for a major purloin. The Court
failed to wonder what the dream team inspected if documents had been
exported away by APEX? Sadly, this Court may have a knack for white shoe
porters eating “his lunch”.

          FOILED [antithetic to “caused”] the EXPORT SHIPMENT charged in tort.
    On 6/25/96 Mssrs. Bolls, Hirsch, Maginot directed Kiefer & Polacek to STOP SHIPPING
        ACCOUNTING REPORTS, which reveals that “Agate & Comingled papers” were


[This Court’s own novel “EWR-interstate-carrier” stratagem, as absurd, baseless as lawless,
     leaves no room for reasonable doubt, that Park Avenue trumps Pearl Street 7:0.]

      "It is our duty `to give effect, if possible, to every clause and word of a
statute.'" United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 99 L.Ed. 615 (1955)
(quoting Montclair v. Ramsdell, 107 U.S. 147, 152, 2 S.Ct. 391, 27 L.Ed. 431 (1883)), and "A
basic premise of statutory construction is that a statute is to be interpreted so that no
words shall be discarded as being meaningless, redundant, or mere surplusage." United
States v. Canals-Jimenez, 943 F.2d 1284, 1287 (11th 1991).


      Honor has a very steep threshold, and to gamble a heap of it away over some alien
pagan’s exposure that APEX AIRFREIGHT SYSTEMS, LTD. was unqualified and was kept extra-
Jury-Rooms, is unwise. APEX AIR FREIGHT did not hold a mandatory SURFACE FREIGHT
LICENSE (to deliver domestically by truck to a consignee like UPS Ground) stripped the last
veneer of impartiality off of this Court. Even, Hermes5, Götterbote, was expressly
excluded by Congress for lack of substantiality to interstate commerce.

      That´s how it works: Only Congress sets the Rules, not the Judiciary and certainly
not on the twelfth floor. A Judge must know how to deal with prosecutorial malpractice
without fear of risking a personal or parking privilege. Like Hydra slain by Hercules,

  Hermes,[gr. Ἑρµείας]was one of a dozen big ones in Greek mythology, an
intergalactic divine messenger that Congress excluded from §1341.

prosecutorial and judicial misconduct has many heads. Some are cataloged by Justice
Sutherland's classic opinion for the Court in Berger v. United States, 295 U.S. 78 (1935)6.

      Although motions to CONSIDER DE NOVO are available to correct manifest

                                     Errors of law and fact

      they are not expressly provided for by the Federal Rules of Criminal procedure, courts
have long recognized that litigants may properly file them and judges may properly rule
upon them [or file for recusal giving two new mortgage-free eyes at shot at it ] . See, e.g.,
United States vs. Dieter, 429 U.S. 6, 8n 3(1976) (referring to motions to reconsider in
criminal cases as a “traditional and virtually unquestioned practice”) (internal quotation
omitted); United States vs. Ibarra, 502 U.S. 1, 4-7(1991). See also United States vs. Clark,
984 F.2d 31, 33-34 (2nd Cir.1993).

       More specifically, motions for reconsideration in criminal cases are part of the
accepted practice in this District. See also : Haines vs Kerner , 404 U.S. 519, controls here
and restraints obstacles in the procedural arsenal Federal Courts may no longer employ in its
derailment of legitimate and substantial complaints as this one, which raise a very serious
jurisdictional defect and loss of the substantive MAILING to FICTION. See also : United States
v. Ford, Dkt.No. 03-1774 (2d Cir. 2006): "[R]estraint must be exercised in defining the
breadth of the conduct prohibited by a federal criminal statute."[Op.14 emph.added]
“Breadth” meant sine qua non shipped by licensed interstate carrier, Element No 3.

 More from SCOTUS: In US v. Mechanik, 475 U.S. 66(1986), we held that there
was "no reason not to apply [the harmless error rule] to `errors, defects,
irregularities, or variances' occurring before a grand jury just as we have
applied it to such error occurring in the criminal trial itself," id., at
71-72.See also: Moreover, in reviewing the instances of misconduct in that
case, we applied precisely the [504 U.S. 36, 65]    same standard to the
prosecutor's violations of Rule 6 of the Federal Rules of Criminal Procedure
and to his violations of the general duty of fairness that applies to all
judicial proceedings.

    Galileo to his procureur: “Listen to me: someone who still doesn´t know the truth is just
       thick-headed. But someone who does know it and still calls it a lie, is a criminal.7”

               Limited Jurisdiction to rule on this limited motion is continued

        The Court’s too apparent linguistic treachery [HLS peers sez:”remnant of HLS
indoctrinations”] was either for a pompous face-role-reputation-&-robe-savior experiment –
gone haywire, or, equally probable, caused by cognitive impairment, a pathological
condition requiring medical attention. Both options (a third option is currently under seal)
annihilate absurd Opinions ad hoc.

       This Court flopped intoning Rakoff’s “Stradivari Sound” with a K-Mart fiddle,

                                and then the peg box broke off.

     Unsurprisingly, this COURT rudely violated his federal judicial oath and turned this ONE
     The Holy Book provides compelling information on the Court’s supernaturalism:

               Luke 6, (King James Version) 37 Judge not, and ye shall not be judged:

                          condemn not, and ye shall not be condemned.

          [Defendant submits Luke’s line for subtitle to plaques on Courtroom walls.]

    The Life of Galileo, Brecht©1967/80, scene #9
  In 1776, the notion that no one is above the law was popular during the
founding of the United States. Thomas Paine wrote in his pamphlet Common
Sense that "in America, the law is king. For as in absolute governments the
King is law, so in free countries the law ought to be king; and there ought
to be no other." In 1780, John Adams enshrined this principle in
the Massachusetts Constitution by seeking to establish "a government of laws
and not of men."

        United States v. Gardner, 65 F.3d 82, 85 (8th 1995) is the LAW. It is no longer
facultative for this, or any COURT since August, 28, 1995 [Boy Scout Promise!] "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." A geared-up Court hit the ground running once Branch II propounded to re-
brand a “god dam interstate carrier” hurdle into the “any CARRIER hoax”. Well, Defendant

submits: this opnar has been called. [‫ר‬   ‫פּנ‬   ]

Belated is never too late when JURISDICTION was VOID, for JUSTICE to takes its ferocious
course, and ONCE JURISDICTION is challenged, the Burden of PROOF shifts to the Bench.

        “Getting the defense bar to comply is an easy task, and jurors are fools anyway” said
a very seasoned, learned member of the American Bar, who would not comment on the
bench. Defendant submits that such schemes are unlawful9 and turned the favorable lights
batteries off. Collodi10 went dark when the Pinocchio-phase of this proceeding began11.

  Price v. Time, Inc., 416 F.3d 1327,1336 (11th Cir. 2005) (“While the scope
of the ‘any’ adjective is plenty wide to sweep in all of the noun category
that follows, it ordinarily does not sweep beyond that category. The term
‘any dog’ does not mean ‘any dog or cat’ unless a cat is a dog. Likewise,
the term ‘any newspaper’ does not mean ‘any newspaper or magazine,’ unless a
magazine is a newspaper.
     Village in Italy near Florence where Pinocchio’s father carpentered
  Nor has prosecutorial misconduct been limited to judicial proceedings: The
reported cases indicate that it infected grand jury proceedings as well:
United States v. Basurto, 497 F.2d 781, 786 (CA9 1974), questioning a
witness outside the presence of the grand jury and then failing to inform
the grand jury that the testimony was exculpatory, United States v. Phillips
Petroleum, Inc., 435 F.Supp. 610, 615(ND Okla. 1977), failing to inform the
grand jury of its authority to subpoena witnesses, United States v. Samango,
             Federal Courts & Executive become enemy combatant vs. the LAW

     Four fundamental issues were systematically shirked or distorted by the COURT:

        o Whether Grand Jurors were defrocked 6-14-2001 by prosecutors knowingly and
           willfully manufacturing a fictitious international mailing of a charged June 96
           Document, contained in an innocent §1341-immune month-end routine , that
           was willfully hoaxed into an, equally jurisdiction-free, criminal charge12:
           “Delivery by international airfreight company ….to Offenburg, Germany”
           lacking the third prong of a bona fide interstate carrier company delivering any
           “thing” as marked and addressed to Germany and not to Newark

        o What is the address in New Jersey [?] and where was such verifiable delivery
           LABEL glued to the “bogus-interstate” - transit-for-export – air freight to New
           Jersey. The Jury is still puzzled. The “self-ordained error-free” Judge kept his
           secret NJ consignee Label under seal – hidden in chambers to date as our
           Rumpelstiltskin custodian & original crafter of his very own novel “Hail Mary”
           Newark tack, unsupported by case-law, unsupportable when a bona fide
           method is not dependent upon “ho and fro cross Hudson” but upon an
           established, certified, licensed, not-at-hoc interstate carrier company to be
           able to inaugurate jurisdiction without a reasonable doubt, and not be left to

607 F.2d 877, 884 (CA9 1979), operating under a conflict of interest, United
States v. Gold, 470 F.Supp. 1336, 1346-1351 (ND Ill. 1979), misstating the
law, United States v. Roberts, 481 F.Supp. 1385, 1389, and n. 10 (CDCal1980)

 Defendant withholds comments here re many other falsifications contained in

the indictment, and refers to the Judge who kindly safeguards a highlighted
S2 version in due course, which defendant noticed in 2004, by legal-
hoosegow-mail, to manifest that 82% of the incendiary indictment text was
fabrication. The judged ducked the issue ardently under shuffled papers
instead of gaining experience for his daily chores.

           judicial hankering without support in law or in fact, or helped along by a
           notoriously ruthless plaintiff who scoff at Professor Henning’s well grounded
           authoritative restrains but give Judges sugar13.

        o Where - on the record - did the Judge instruct the Jurors on Newark Airport to
           be or not to be the MAIL sufficiency criteria (he certainly kept clammed up14 in
           OPEN COURT during Blumenberg’s guilty colloquy, see also in APPENDIX), and
           where - on record – did this Judge pose the “interstate carrier” qualification15 ,
           Gretchen’s, question for a “without a reasonable doubt” test.

        o The Court’s precise phraseology on page 3 of the October Opinion is telling:

                 “The jury was instructed correctly that, with respect to the mail
                 fraud statute, the Government “must establish beyond a reasonable

  USANYS Michael Garcia/M.Cohen’s submission date 7-10-2008 is a prime
example for malpractice and malicious conduct, see page 4(B.)(1.) “Scheme to
defraud” is a FIVE pages rant, while federal law states that “the gist is
the mailing not the scheme to defraud”, but these two proctors waist 3 lines
(on page 9) to altogether skirt the third element as in “interstate carrier”
and the crucial fact that Ö’Sullivan and his bosses in the government knew
perfectly well, that “SHIPMENT” of GX 501 had equally been embargoed by
Kiefer “On or about June 28, 1996 Burda Media mailed the Agate Reality
Invoice”. Not so. Apex did not even make it on to Noah’s arch.

  tantamount to censorship of material law language by a Court who despair
that “Newark EWR” could and probably would fatally tip-off Lee`s and
Viertel’s defenders to weakness-in-chief, drowning future support for a
loaded judicial immunity claim in the Hudson near Hoboken.

 In 1994, Congress amended the mail fraud statute to include mail sent by

"private or commercial interstate carrier[s]." Violent Crime Control & Law
Enforcement Act of 1994, Pub.L.No.103-322,§ 250006,108 Stat.1796,2087. At
[a] trial, the parties stipulated that Federal Express was an interstate
carrier. We conclude that Congress properly exercised its power.

                         doubt . . . the use of the mails in furtherance of the scheme to
                         defraud. The use of the mails as I have used it here includes
                         material sent through either the United States Postal Service or a
                         private or interstate carrier.” (Trial Tr. 1992);

        The Court’s counterfeit quote using “or” furthered judicial fraud upon Jurors,

                      the key word “commercial” chopped off behind the bench

              Lapsus linguae judicis [hardly], rather deliberate deception16, scienter, and fearful
that the abusive enhancement17 scheme boomerang, and wanton knowledge that a plain Jury
       untrained in international logistics could effectively by poisoned and swayed by mal-
     instructions. Juries do understand what “or” meant or should mean, and, even if a Court
later corrected its verbal error - it did not - the damage was done, the milk spilled, the Jury
       ate the bench-con as in “an interstate carrier thingy could be a donkey”, arguendo.

         The government set the stage for these nefarious con-games18 in the Grand Jury
room, because United States Attorneys routinely trespass with loathe restrictive language

          When a [Art. III] commissioned Judge ponders that – arguendo - “a
         set of Bunny-Ears make play-girl” just as four worn tyres make an
         interstate carrier from a gypsy livery van, you are all in trouble
         when laws are scoffed, without a frog left to be kissed.
  a few - time-barred – month before these international air-freights of
Month-End-Kassen-Reports to Munich were equally “federal-crime-free” and
100% unfit for “judicial preponderance over [ir]relevant [mailing]conduct”
and even more unfit, in the tort sense, to enhance to $345.000 – extra-
verdict – for a profoundly injurious incarceration of a family man.
Unsurprisingly, after all ballyhoo baloney, it turned out that Kiefer
embargoed the “charged and crucial” June 1996 Report and all 69 flavors of
furtherance: DOA. Consequences for Judges are stern, but they are good
deterrents. Hamurabi spells it out.
  One must get the government to drink and their own potion?:see September
2011 USDOJ/USANYS umpteen’s self-congratulatory press release by NYSD U.S.
Congress planted, even when, as here in §1341, the DOJ was original drafter19 of these 27
(twenty seven) lexemes:

             Pub. L. 103-322, Sec. 250006, inserted "or deposits or causes to
            be deposited any matter or thing whatever to be sent or delivered
                by any private or commercial interstate carrier," after "Postal
           Service," and "or such carrier" after "causes to be delivered by mail".

                                       Who are “we” ?

        "We're a public institution, we're accountable to the public," Chief
D.C. Judge Lamberth very recently stated about Federal Courts: "We shouldn't
allow    this    to   happen."   See   also   344   F.3d   1089,   FN   12:   In   contrast,
"[a]llowing the government to meet the interstate commerce requirement
through only a nominal showing of a connection to interstate commerce would
do as much to `completely obliterate' the distinction between national and
local authority as if no jurisdictional requirement existed at all."United
States v. Odom, 252 F.3d 1289, 1296 (11th Cir.2001), cert. denied,535 U.S.
1058, 122 S.Ct. 1920, 152 L.Ed.2d 828 (2002).

Attorney PREETINDER BHARARA: “As he admitted today, Raymond 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 and bad Justin did it, Mark munching his nails bloody.
     Pursuant to budget authority to expand Postal to FedEx/UPS in 1992


         This challenged Court crossed all three “Red Lines” and can no longer rely upon
Pontius Pilatus20. This Court had distinguished scienter all along that the distant, foreign
based Defendant could not possibly have “caused” a thing in Manhattan, while “the objects”
were entirely unreachable, and are now, finally out in the open Court, PROVEN TO HAVE
BEEN as BOGUS a MAILING, and a furtherance-free bogus a WIRE (Denial is worthless, as facts
are out). And, the “Conspiracy” was a genuine dystopia with objects up in smoke, and overt
act untenable, because they were pure fabrication from the beginning, undisputed.

         The COURT had scienter, and was more probable than not personally involved in the
planning and execution of the TOTALITARIAN PLAY staged for the Jurors.

         These words below, actually gave it away, because the arguments made in
SUMMATION are an assembly of falsities, diversions and misguidance. To betray and lull the
jurors as to the standard of proof, the criminal object, Cohen steers clear of “6-28-1996
substantive MAILING” like Dracula from the Cross, and her structuring by Truth-Laundromat
uses preconceived careful words to complete the Justice-Miscarriage – and was indubitably
obvious to a scheming Presider “in-on-the-con” [and there is no other more benign
explanation any Court could propose] – Cohen´s generic platitudes as in “...reasonably
foreseeable to the Defendant that mailings took place...”.

         That isn’t so. ONE singular, non       disqualified mailing must be found to have
occurred, and not generic time-barred mailings on a routine schedule, that, as Court, Clerks,
Government, bench-buddy Feldman know well for long, was BROKEN UP, that monthly
ROUTINE WAS STOPPED before June 1996 ended, the JUNE REPORT was held back, and
obviously, this DEFENDANT had no clue either way, and more importantly, armed with the
standard dump-truck-CJA, had no prevoyance of the REPORT EMBARGO Kiefer followed on
orders from Germany. COHEN, direct:

     Pontios Pīlātos, Tiberius’ governor of Judea from 26 CE to 36 CE washed his hands of guilt
      But among all of the incredible falsifications the government produced, this one, in S1
is my favorite and must win the trophy: “via international commercial carrier”. What law
would that be, Mr. AG ?

                                Error Olympics in Judicial Denial

      But, this COURT, over and over COMMITTED ERROR ON ERROR to loiter on and to
cover dirty tracks and – according to sources that fear retribution – Warren Feldman’s

shadow-play-directions, and theses “CONTRA JUDICIAL” words explain a lot about the depth
of graft in Court play, unrelenting, even when fundamentally challenged over its own lack of
jurisdiction, the JUDICIAL OBSTRUCTIONS continue:

       1) (in yet another “Denial” Opinion of 5-4-2005 on @Page 5 scrivener states ) “There
          was evidence from which the jury in this case could have found, that
          the interstate carrier element was met, however, because there was
          evidence that showed that the fraudulent invoice[s] at issue were
          routinely sent by Burda’s New York City offices to the airport in
          Newark, New Jersey, using Apex”. [Underline added: Kiefer’s quotation
          omitted, see Tr.29V8VIE2 pg 100, Line 24: “I’m not sure who it was….”].

                          What a JURY “could have found” is not object of

                                Judge Koeltl’s subjective speculation.

       2) It is utterly irrelevant whether a petit jury can be finagled, second-guessed, left
          un-polled, to have somehow believed a camouflaged ugly gypsy livery truck could
          morph into a fully licensed interstate carrier beau, because initial jurisdiction was
          not on its MENU, deliberately. That JURISDICTION, the subject matter flavor not in
          reach, never brought onto the Juror´s plate. APEX AIR FREIGHT SYSTEMS, LTD. was
          factually not an “interstate carrier” APEX AIR FREIGHT was a LUFTHANSA IATA
          Agency and as such operated its SYSTEM for international air carriage. APEX did
          not hold a SURFACE FREIGHT LICENSE at any time (required under State Law), and
          stated that Interstate SURFACE CARRIAGE (i.e. Manhattan to EWR) was not its
          business, no single consignee received delivery from APEX AIR FREIGHT, except
          intrastate state tax-exempt deliveries from JFK to Burda in Manhattan. The THIRD
          MOST CRUCIAL AND CHALLENGED ELEMENT OF §1341, must, incontrovertibly as
          substantially be proven without any reasonable doubt to a jury and under a “lesser
          standard” to a Grand Jury. The requirement was killed by prosecutors and
          judicially dropped altogether, finagled, obscured with its shmutsik object to
          mislead a federal proceeding into a dark dead-end. Lux fiebat21.

     Genesis 1:3 (Hebrew: "‫)"אוֹר ְהי‬
     3) BMI’s-own-created “$8´120.00 Agate Fake” was not “mailed” at all, not anywhere
        and not anytime. That is another Brady fact, highly uncomfy for two branches,
        but so is Chancellor Angela Merkel’s cell-phone-gate for what remains of America’s
        reputation. BMI’s Agate Fake was HELD up by Ellen Kiefer and by Robert Polacek
        on ORDERS from Shareholder Burda GmbH by telephone 6-25/26-96, confirmed by
        two reliable witnesses to the German Central Authority, thus, any reliance upon
        “any mailing” were misplaced - ab ovo -, nefarious and impeachable. That HOLD
        embargoed all documents prepared for the June 1996 Kassenbericht Report was
        first noticed to this Court on Docket 112 in August 2004 including the POLICE
        INTERROGATION of Dr. Maginot. The two branches could not even dispute this
        fact. They procedurally derailed this valid issue – BRADY OR NO-NAME, when this
        Court should have taken it seriously. Double-Branch-Scienter in salute of the flag.
        Well, the flag could do without.

     4) But not only, “by mail or such carrier according to the direction thereon, or at
        the place at which it is directed to be delivered by the person to whom it is
        addressed”…is a federal crook, and is no federal crook if none applies. Factually
        the Court and his very own Newark RUSE22, who can´t pass statutory muster but
        is a total FAILURE for this Court, because, again, the delivery of 34kg of press
        materials (which were without June’s Kassenbericht Report) was addressed to
        MUNICH AIRPORT and for 2 BURDA companies (none of it for HOLDING, see
        http://bit.ly/15OMnoq ), and was not directed to any “Schniggo Burda of
        New Jersey” or to any US delivery address, person or consignee within the 50

  In fact, proctor Feldman gloated @ RW’s water-cooler, inter alia, of
successful imbuement upon 2 “foolish” branches by his superior guile, and
about R&W’s highballing Burda-fees their General Counsel Prof. Dr. Schweizer
was eager to disburse and his thank-you-share back; maybe Fordham U’s offal
facilities could be renamed: “Feldman’s Dreck” for memories how a Fordham
clown clone can´t perfect a CIVIL RULE 4 SUMMONS for Judge Sweet’s chambers
and can still bamboozle judgment clerks on Moynihan’s ground floor.

           States, but specifically to GERMANY, a sovereign country, 3500 miles east of
           the United States border coast line and its territorial waters, where §1341
           falls into that water and drowns. drowned before the government gave this
           Court docket’s-middle-finger, inside a Grand Jury room on 6-14-2001, where
           charges were orchestrated by a twofer of veritable ignoble United States
           representative proctors (Harris & “Bad Justin” Weddle), another Irish fool of FBI
           picciotto23 Ö’Sullivan24, and by absence of a corporate witness – no one cared to
           invite – a director of APEX AIR FREIGHT SYSTEMS, LTD. from and in Delaware25 who
           would surely destroy a contracted prosecution. What looked like corruption,
           walked like corruption, was corruption.

     5) Again, what a JURY “could have found” is not for THIS Court to second-guess, and as
        “coulda-woulda” an irrelevant argument, because the COURT did not care to instruct
        and did nothing to arm then intelligence of or alarm the JURORS [on urgent demand26
        by the plaintiff their no-longer-secret commercial puppeteers] whether an

  The two lowest ranks in a MAFIA family are those of picciotto liscio
and picciotto di sgarro, they respond on tip-hot-lines, at best.
  A selected GJ transcript established how Harris coaxed FBI O´Sullivan to
lie to the Grand Jurors in order to fabricate a more “incriminating”
timeline around the $8´120.00 disbursement (that was still $8´120.00 and
unaltered to $8´120,10 in September 2002 – just as printed in the “mail”
charge, in 2002, proctrix Cohen added 10cents by pen for Petite Jurors, and
plead her fabricated timeline in a corrupt brief to the Second Circuit

                                    Incorporation 01/22/1993
File Number:    2323368
                                           Date: (mm/dd/yyyy)
Entity Kind:    CORPORATION          Entity Type: GENERAL
Residency:      DOMESTIC                   State: DE (DELAWARE)

     Probably in camera, and pluribus violations of a fair trial

      INTERSTATE CARRIER was a real INTERSTATE CARRIER and in such quality actually
      involved on 6-28-199627. The famous TV show comes to mind: “What’s Your Line?” on
      the 12th floor. No-way-Jose. But more, the Court stated @ Page 23: “[t]he
      fraudulent scheme in this case worked because fraudulent invoices were
      air freighted from New York and because funds were wired from
      Germany”. Does this read like “interstate carrier business”?

                                         What nomocracy ?

      Basically, it is all about HONOR, REPUTATION and NOMOCRACY28, or at least the
perception of or deceit by either postulate, the luxurious dignity of cell-phone-free-NSA-
immune mahogany environments in Federal Courtrooms, Fletcher´s “loud bang on wood” for a
manful incantation of pure HONOR about to strut onto the bench, these ELEMENTS are missing
from this October “Opinion”. Instead, the DUTY to ADDRESS an quintexistential challenge
over structural error was transmogrified filler-up filled with and built on less than hearsay
over subject matter jurisdiction and dilatory vanities. “Reconsider” must lead here to a do-
over, do-a-lot-better opinion, and for the unlawful purpose of FOILING DETECTION.

   United States v. Castleberry, 116 F.3d 1384, 1389 (11th Cir.1997), is
pretty well written to highlight the problem. In that case the district
court defined the phrase "interstate commerce," not "facility in interstate
commerce." Moreover, the Castleberry court merely stated that "if you
believe beyond a reasonable doubt that the defendant committed extortion ...
and you believe that the Government's evidence regarding the impact on
interstate commerce beyond a reasonable doubt, then, as a matter of law, the
jurisdictional requirements of the Hobbs Act ... have been met." Id. This
instruction,   which    does not state   that   the    defendant's   conduct
constitutes, per se, interstate commerce, properly left it to the jury to
determine whether the interstate nexus had been proven beyond a reasonable

  Nomocracy: A system of government based on a legal code; the rule of law
in a community. http://www.wordinfo.info/words/index/info/view_unit/1406/3
Federal Court must divide controversies into “Jurisdictional Haves and Have-Not’s”, thus as
a matter of record, hundreds of thousands of cases are dismissed. Unless BIAS rules, in favor
of its king-maker and paymaster the judiciary can’t do without.

        1) The identifiable problem is between THE COURT and THE DOJ, and this alien is
           just an alien PEE-ON victim, but also a whistleblower, who assists and insists in the
           administration of justice for all. It comes at a time, when public opinion about
           RULE OF LAW in America is at its lowest, unsurprisingly. (UCLA research concluded
           that the Federal Government of the UNITED STATES violated during 2001 about
           sixteen thousand laws PER DAY, not a new record)

        2) Somehow this looks like “Rube Goldberg´s –School of Law29” rather than HLS´
           100%-completion-mill, where nobody dares to challenge any good´ol HLS alumni
           clone but bestow upon her the alumni clone exception, that is:       not to have to
           make sense,     not be honest or an honest trial exhibit custodian, nor     law-
           compliant,    not be moral     nor consistent. In many American Courts, contrary to
           the Founding Fatherly Ideas, exist an unwarranted presumption today of a pre-
           installed credit balance, a pre-loaded [if not pre-paid] CONFIDENCE KUDO at the
           start of a criminal controversy against an individual. Court´s are to calibrate the
           slant, but often fail, or felt Blofeldian pressures compelling failure, as here.

        3) This is no longer just a multi-year (2001 to 2013) multi bogus case, even over
           Restitution unlawfully decreed, which this Court, indubitably imbued by USANYS’
           false FLU affidavits and propagation, roguishly steered into a prejudicial “Diesel-
           Therapy” [Hon. Pitman as “relief” driver] to procrastinate its expected outcome,
           that has become a resounding defeat for the USANYS, amply certifying its history
           of abuse, obstruction, false victimization and perjury over fraud upon Courts.

     And some elective courses at Rube´s school of perennial economic sophistry

              Carriers are not couriers. Congress knows best and air freight is not interstate,

      and Lord and Behold, what made the Court drop his novel NEWARK ruse from these
      words above? The Court’s conception and conclusion was not of the immaculate

                Bad Faith on Juror Instruction, butchering the statute every time

i.    On August 14th 2002, Comey-Harris-Cohen submitted the “government’s” Rule 30
      request to charge the jury, inter alia, stating a “purpose” definition but definitely to
      prepare the stage for this Court’s creativity by not aggrandizing an APEX AIR FREIGHT
      SYSTEM’s gypsy livery truck, who had NO SURFACE FREIGHT LICENSE, as required, and
      won’t and didn’t fit the true bill and was not even under export contract by BMI, but
      by M&M AirCargo of Munich, Germany, a true international air freight forwarder, a
      type and method that Congress, for obvious reasons, excluded:

      i.      The Court shall notice that “other carriers”, above, was yet another fraudulent
      statement to mislead JURORS, see APPENDIX COLLECTION OF Snapshots.

ii.           Furthermore, and unsurprisingly, this Court’s “own lap-dog” Pretrial services
      Probation department unceremoniously buried the Court’s lack of “interstate carrier”
      criminal jurisdiction, and issued massively misleading REPORTS.

iii.         Further, on the subject of IAC, i.e. “Moskovitz-size” craving CJA defenders, it
       comes to mind that you country has come a long way from the early days of the mail
       fraud statute, when courts often restricted chargeable frauds to those necessarily
       dependent on the mails. But the need to prove a mailing beyond a reasonable
       doubts in the offense remains. If appellate courts are not closely supervising the
       nexus between a fraud and a interstate carrier or a gypsy truck and international air
       freight company utterly unconcerned with NEW JERSEY commerce, YOU should not
       expect a jury to give the matter much attention in its fact finding, which is more
       likely than not obstructed by the government. A defense lawyer will not likely get far
       arguing: “OK, perhaps the evidence against my client does suggest a scheme to
       defraud. But the most important thing, the key element, I submit, is that the charged
       transport s lacks an interstate carrier, and unless the JURY finds, on the presented
       evidence, that such carrier was a genuinely licensed commercial or private interstate
       carrier, the law was not broken.”

iv.          It is even more important to realize that branch II, Main Justice and “our”
       USAO had and still have a strong proclivity to misrepresent and misquote United
       States Code, inter alia 18 U.S.C. §1341, QED: as per “Request To Charge” (supra)
       aggravated below, by yet another COUNTERFEIT Statute, leaving the “interstate
       carrier” altogether in the dust:

                        We guessed it! The “interstate carrier” got lost above!

                                       LAW AND CONCLUSION

      “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 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 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.den. 456 U.S. 929 (1982).

    “Where there is no jurisdiction there can be no discretion, because discretion is
   incident to jurisdiction.” Piper vs Pearson, 2 Gray 120, cited in Bradley vs Fisher, 13
                                 Wall.335, 20 L.Ed.646 (1872)

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

      If the means used to commit an offense are deemed an element of the crime [and
they are in §1341], unanimity is required. The SUPREME COURT RULED LOUD AND CLEAR in
Richardson v. United States, 526 U.S. 813, 817 (1999) (plurality opinion), in which the Court
again distinguished the elements of a crime from the means used to commit the elements of

the crime. If a fact is an element, “a jury in a federal criminal case cannot convict unless it
unanimously finds that the Government has proved [it].”

This SUPREME law existed before Branch II began defrauding their GRAND JURY.

      Therefore, this Court shall finally 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 in a certified
LEMON-CASE and, equally over lack of an INTERSTATE CARRIER, and over the non-domestic
events which plainly did not arise from violation(s) of 18:§1341, 371, 1343.

      Shipments of this first and sole June-96 BMI-creation “Agate” [GX 501 & Co] were
embargoed and held back by Kiefer, is truly serendipitous. Defendant submits its
congratulations that at least three crimes30 did not happen in America.

      Hypothetical jurisdiction is no jurisdiction at all31. Executive privilege to derail
Justice does not apply to mail fraud controversies.

                                           Ultra vires 2.0.

      Therefore, applicant moves for consideration de novo based upon 1) the foregoing, 2)
the original motion, amendments and annexes, DE 307 and DE 308, 3) other uncontroverted
facts on record, 3) plain language of statute §1341, 4) the Affidavit in Support regarding
“APEX AIR FREIGHT SYSTEMS, LTD” filed herewith on this day under separate cover and 5)
for REVIEW of Grand Jury minutiae by the Court and seconded by an unclouded official with
cleanest hands to report on findings, whether publication could reasonably withheld.

   The Gloss is off, the color of law and color of jurisdiction was
identified, and the Court’s October integrity-free OPINION tells an
embarrassing tale and dysfunction of the Nation’s Rule of Law dream blown
away. The Courts Gat-Away-Car was stolen, the fellows on ROW ONE tries to
abscond to watched the color of their paint dry.It is HIGH NOON for Congress
to install a watchdog over Art. III position in each Circuit, a
whistleblower hotline, and to offer awards for ratting on judicial
malpractice, on backdating, on docket entry fraud, on honest judicial
service fraud, on “switcharoo” of submissions, and such watchdog shall
protect CLERKS from retaliation by those gotten caught, and by those who
compliantly enable the judicial abuse and threaten career failure.
   Such adjudications are “ultra vires” [Scalia, J.] in Steel Co. vs Citizens, 523 U.S.83(1998)
      If all before fails, an EVIDENTIARY HEARING must be held to 1) determine WHETHER
was not inside a charged 34kg international air freight “Export Shipment of Press-materials”
and whether Agate was factually held back under a corporate embargo issued 6/25/1996 [4
witnesses to be called].
      Apparently Kiefer misspoke once, and a Court can no longer rely on her quote.
      Otherwise, VACATUR and MISSIO of the Judgment of Convictions and underlying
indictment are de rigeur. And if all else fails, its RECUSAL TIME for this Court.

                                         Christian T Viertel, Defendant pro se
                                         9/18 v. delle Ballodole Firenze, ITALIA 50139 -
                                         viertel2005@aol.com N/A Tel +1 360 227 6326

CERTIFICATION of Service /s/
    by E-mail to U.S. Attorney Preetinder Bharara and Richard Zabel, Esq.
      By MAIL upon USDC NYSD, Pro Se Clerk Office pursuant to New ECF Rules 9.1 and 9.2
      Regarding Service of Documents by Filing on the Electronic Case Filing (ECF) System
      And by MAIL upon the Office of the Hon. Acting Surgeon General
      Rear Admiral (RADM) Boris D. Lushniak, M.D., M.P.H. for indication of MCI issues
      within a sister branch of government
      By email to Michael Garcia, at FIFA.com in Zürich, Switzerland

  In a governments “priority” fax broadcast from Squad- C12 dated 06/15/2001
branding Defendant Viertel as FUGITIVE, the FBI supports their defective,
unsigned A/W for their “Locate and Apprehend” request to MIAMI with these
words: “On 6/14/2001, a Federal Grand Jury returned an indictment [blank]
...Arrest warrants have been issued by the Southern District of New York.
This was the beginning of the constitutional violations for Defendant.
    Mailing to “Inspector General for the Federal Judiciary” failed on delivery as such
    a function remains fiction, just like Mickey Mouse, a figment of imagination.

                             APPENDIX FOLLOWS

    A Fine ART Collection of transcripts and snap-shots in support of the challenge

    The Original Indictment of June 14, 2001 is on Court file [unfortunately only a back-
    dated version missing the handwritten “A/W issued” notation], and Mary-Jo White
    signed off on “international air freight” language.

Page 1

Page 3

Page 4 Top

Page 6 bottom

Page 8

Page 9

Page 11

Page 12 con´t

Page 14

          Samples :

          AUSA Harris wrapped up the trial to pre-dislodge as he pre-empted what could
          be left for this Court’s ultra-late non sequitur opine, namely total absence of
          an unsanctioned local livery “carrier’s” river crossings. Foresee-ability was
          suggested only as to a certain international air-cargo delivery (in itself a D.O.A.
          hypothesis since outsiders could not have such suspicions), but the “delivery”
          of the TRUE BILL, intrinsically lacked interstate nexus rendering all “matter” in
          international air shipping an innocent, scheme-free, transatlantic delivery:

1) But, there is even more discretional abuse in the Court’s instant opinion, when
   it disrespected to address the “TRAVERSE’s” important “new jurisdictional
   evidence June Chase microfilm” annex that became yet another time for a
   “Brady meets Statutory Limits” party. Branch II withheld it from the defense,
   in fact admitted by AUSA Harris’ words [24] on July’s [1996] bank statement.
   Harris did not “unveil” the “key” June 1996 statement, the one this defendant
   finally retrieved and swiftly annexed to the “TRAVERSE” [see: Annex Chase
   Microfilm in May 6, 2012 filing]. This new “Brady violation” has again
   jurisdictional dimensions and is stated fact (“government” Agent O’Sullivan and

            both AUSAs had total BMI bank record access) and it sponges and entombs the
            government’s false “trigger point” allegation of Count 2 [averred by a forever-
            untenable overt act re §371] by demonstrating the June 1996 End-Of-Day
            balances, i.e., on 06/18 at $383 thousand, on 06/19 at $356 thousand and on
            06/20 at $270 thousand, non-sequitur “fat” levels claimed to have scared a
            cashier. But the Chase annex serves another purpose, and not just to newly
            litigate yet another constitutional Brady offense, but to prove really bad faith
            and allow the public a clearer view into the ethical standards its justice
            administration subscribes and what suppressions they suffer33:

          2) The words represents deliberate, if not malevolent obfuscation in addressing
             “controversies against 2 aliens34” by confusing a jury with ad nauseam
             deployed, anti-populus-obscure laws like “mail-fraud”, JohnDoeSixpack won’t
             understand and “American Government” HS classes must avoid. The
             government’s motive is rather evident: To Gain The Most Unfair Advantage.
             Obviously prohibited. See: “But while he may strike hard blows, he is not at
             liberty to strike foul ones.” ruled Justice Sutherland in Berger vs. United
             States, 295 U.S. 78, 88 (1935). There is no rescue coming from the favorable
             “lighting kits” less-impartial members of a tax-rebated bench carry along at all

          3) Lastly, and thanks to Blumenberg’s records, we view his April-5-2002 so-called
             “Guilty Plea35 allocation ” [unilaterally withdrawn 2010 by international
             certification] to scientifically gauge for a jurisdictional “Gypsy truck” credulity
             level that – in 2012 – riveted onto the “mailing” element to jack it up; and, lo
             and behold, the gauge reads at ZERO!

   [the sole native and sole citizen-defendant’ was miraculously nolled on 7-3-2002 from
similarly coined and structured mail frauds due to (secretly kept) lack of interstate nexus],
and lack of witnesses to show his character
   unilaterally withdrawn 2010 by international certification
       As any reasonable jurist will deduct upon transcript review that Blumenberg
did not get allocated, neither intelligently, willingly nor upon an independent basis in
fact as to the sufficiency of the elements for crimes under §§ 371, 1341 and 1343
(also, both tax counts were bogus, certifies Blumenberg, since both 1040’s were
truthful declarations under oath). It likely was due to the mock lighting kit that blinds
benches like headlights the deer. Even Phil Weinstein’s middle-finger on the cheat-
sheet (see below, colloquy) cannot help inculpate the defendant, Phil’s hand-
scribbled words were generically value-free for allocation purposes, venue was left
unclear or disputed, and while Blumenberg speaks “mail-order shopping”, the Court
fathoms “interstate”. It sounds like wishful to ‘n fro but in the end the Court water-
boarded a tongueless. Total disconnect ensued. But, that great federal qualifier
“interstate” is – again - missing altogether and all of the King’s horses can’t put it in
place to mutate this colloquy into a valid plea. See: even Pimentel’s mailing is faulty
(Tr.Pg. 7) as confessed by AUSO’s Weddle:

Even better, pg 18, the Court pronounced:

Or here, on page 24, the Court spoke again:

Blumenberg did not grasp much, but Gypsy Livery Trucks “enroute” to
Newark were left unchronicled [doth it matter in the wild-due-process-
West? It doth, actually] and when Blumenberg rattled off Weinstein’s
scribble, shock strikes:

Line 25 above reads:” The mails and wires…” obviously another case,
because in this case vs. Blumenberg, Lufthansa was used for Delivery
by international airfreight carrier. But, then again, the Court is
often on the wrong page, and the wrong proceeding:

AUSA Weddle recognizes the colloquy’s total disconnect:


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