Lawyerdude's Demurrer and or Motion to Quash by ikn20172

VIEWS: 245 PAGES: 33

									 1   Michael Pohlable with Stand-by counsel                         This space reserved for filing stamp.
     453 East Verdugo Avenue #103
 2   Burbank, California 91501
     kalash@kalash.ws
 3   949-280-7333
     800-610-0081
 4

 5   The unalienable rights of the people can not succumb to the limited and privileged
     powers of a constitutionally established government.
 6   This document is published at http://mike.revolutioni.st/9007SR.pdf , http://mike.revolutioni.st/9007SR.htm and
             http://mike.revolutioni.st/9007SR.wpd
 7

 8               In the United States District Court for the Central District of California
                 Southern Division: 411 W est Fourth Street, Room 1053, Santa Ana, California, 92701-4516
 9                                         Judge David O. Carter – Room 9D
                                                     Hours: 10-4 - M-F
10                                            http://www.cacd.uscourts.gov/
     United States                         Case Number: sacr 07 0033
11   v
     Michael Pohlable,                     Surrebuttal to Prosecution’s Untimely Opposition to defendant’s
12   et. al.                               1 st Substantive Motion; Document #9007 Version 1.003.

13                                         This Document is Labeled #9007SR
                                           Table of Contents
14
                                           Introduction
15                                         Statement of Facts
16                                         Argument/ Memorandum of Points and Authorities.
                                           Conclusion
17
                                           Proof of Service.
18
                                           Proposed Venue for hearing:
19                                         Date: Monday 17 March              2008.
                                           Time: 1:30 pm
20                                         Place: Courtroom 9d.

21                    Notice of Surrebuttal. Petition for Relief of Unconstitutional Claims.
22              To the court: At the venue designated in the caption or at such other venue as the court shall designate
     due to issues of timeliness, I will appear and demand the relief set forth herein and such other relief as may be
23
     appropriate. Rule 12: “A party may raise by pretrial motion any defense, objection, or request that the court
24   can determine without a trial of the general issue.” This motion can be dispositive. As this document is wordy

25   enough, any appearance of admissions of guilt are to be construed as hypothetical in nature for the sake of
     clarifying my points - all admissions or inferences are to be read amended with, “As alleged” - or otherwise per
26
     context.
27   Signed _________________________M ichael Pohlable. Monday, March 17th, 2008

28


                                          Surrebuttal #9007SR - Dem urrer Motion Surrebuttal by Michael Pohlable
 1   Contents of this Surrebuttal:

 2

 3   Notice of Surrebuttal. Petition for Relief of Unconstitutional Claims.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-

 4
     Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
 5

 6   Summary of Surrebuttal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-

 7
     STATEMENT OF FACTS/SUMMARY OF CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-
 8

 9   ARGUMENTS/MEMORANDUM OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-

10               Origin of Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
                 Powers Of Congress/Government. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -17-
11
                 Criminal Acts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -23-
12

13   Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -31-


14
     Proof of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -33-
15

16   Individuals have international duties which transcend the national obligations of obedience...
     Therefore citizens have the duty to violate domestic laws to prevent crimes against peace and
17
     humanity. - Nuremberg War Crimes Tribunal, 1950
18

19   Unconstitutionality is illegality of the highest order. --(Board of Zoning Appeals V. Decatur
20   Company of Jehovah's Witnesses, 233 Ind. 83, 117 NE 2nd. 115)

21

22                                                                          Introduction
23

24           On Feb. 20th I filed a motion to dismiss 6 counts of an indictment which I believe to
     be a criminal attempt upon my rights of property and contract. I agree with the prosecution
25
     that the motion was lacking in clarity, and I hope to provide much needed clarification in
26   this rebuttal to their untimely response, which was not filed nor served until 2:42AM on
27   March 10th, a full 9 days past their ordered time to respond, and coincidentally the very date

28


     -2-                                                Surrebuttal #9007SR - Dem urrer Motion Surrebuttal by Michael Pohlable
     my surrebuttal was also ordered due by the court, as agreed to by both the prosecution and
 1
     myself in January.
 2
             In their opposition, the prosecution argues trivialities and ignores the greater concepts
 3   presented, as well as making absurd assertions that the constitutional limitations on the
 4
     government may be waived at the government’s leisure in complete absence of due process,
     in violation of any amendment the government deems an obstacle in their pursuit of
 5
     absolute power. The prosecution also heavily relies upon personal attacks and their claim
 6   that I am not an attorney to discredit me.
 7           I find this to be a diversionary tactic and hope that the court will not be swayed by
     their open contempt of an American citizen desperate to see his Constitutional Republic
 8
     restored.
 9
             Two nights ago I received another notice whereby the prosecution attacks the
10   integrity of my counsel while making statements that show the prosecution to believe the
11   state to be all-powerful, wherein without governmental consent, one cannot even offer the
     services of his knowledge to one who has requested them, nor even attain knowledge
12
     without the government’s recognition of their attainment.
13
             I do not recognize, nor consent to the formation of this all-powerful state that the
14   prosecutor appears to represent, and believe this belief to be the source of our
15   communicative disconnect; the prosecution’s belief in an all-powerful government of no
     limitations, and my belief in the constitutional establishment of government through
16
     privileged consent, with powers derived from my natural unalienable rights.
17

18                                        Summary of Surrebuttal
19

20

21           The prosecution has a valid point in recognizing that I may not have a strong grasp of
     the intricate legal system or its nearly limitless rules, however I have a reasonable
22
     understanding of them after a year of study and practice within them.
23
             I do not find it necessary to understand the legal system or its rules in order to
24   differentiate between right and wrong. Any common layman has this intrinsic knowledge
25   from birth to death..

26
            An honestly represented consensual act cannot be criminal in nature, as there is no
     party suffering injury or loss with which to raise standing in order to bring charges. To claim
27
     standing without a loss or harm being suffered by the person raising the claim is a fraudulent
28   claim which fails to raise jurisdiction of any court.

     -3-                          Surrebuttal #9007SR - Dem urrer Motion Surrebuttal by Michael Pohlable
              The usurpation of another’s rights by simply labeling their private property as
 1
     something other than “property” is an act of enslavement, theft, or at a minimum, an attempt
 2   to defraud. The use of deceit and threat of force to deprive another of his constitutionally
 3   protected rights, while hiding behind the authority, or color, of law, is criminal in nature, and
     is, in fact, a crime under U.S. Code Title 18 Chapter 13 Section 242. Civil remedies may also
 4
     be sought for this criminal deprivation of rights under Title 42 Chapter 21 Subchapter I
 5   Section 1983.
 6

 7           As the very nature of the claims against me is criminal in its attempt to punish me for
     the free exercise of certain unalienable rights for which I did not first seek permission to
 8
     execute, I am incapable of accepting that they have any merit. I am inclined to believe that
 9
     the prosecution, in a clouding of his common sense and reason by his attainment of a
10   privileged office of authority, is criminally involved, either knowingly or unknowingly, in a
     conspiracy against the rights of not only myself, but all of the American people. I do not
11
     believe he is aware of the nature of his actions, nor is he aware that he is being used to further
12
     the communist principal of State-Proprietorship.
13

14           One need not understand the manipulations of language and expression used by
15   attorneys to comprehend the simple positions I intend to raise. A legal background seems to
     have obscured the simple concepts presented in my original motion with exceedingly long
16
     definitions, labels, communist activist’s opinions, minor technicalities diverting away from
17   the major issues raised, and manipulations of facts in an effort to pervert my demand for
18   equal protection of certain unalienable rights and a distribution of justice into a merit-less
     legal catastrophe.
19
            I appreciate the court’s willingness to hear my reply, and its acceptance of my
20
     dissenting beliefs.
21

22           As this is a rebuttal to the prosecution’s opposition, I will copy the enumeration from
23   their response for clarity;

24
             (1)The prosecution is correct in its determination that I believe the statues alleged to
     be in excess of the constitutional grants of power afforded to Congress. I find this to be a fact
25
     not subject to great debate. They are arguing technicalities while the obvious facts, and my
26   rights, are being over looked and trampled through unconstitutional exercise of limited
27
     constitutionally established powers of government..
            This is further explained on pages 9 through 19.
28


     -4-                          Surrebuttal #9007SR - Dem urrer Motion Surrebuttal by Michael Pohlable
 1          (2)The prosecution is also correct in its determination that the delegation of the power
 2   to prohibit MDMA by the DEA is an unconstitutional delegation of congressional power,
     however due to a lack of clarity in my initial motion they have misconstrued this point, and
 3
     again I hope to clarify with my comments found on page 13.
 4

 5
             (3) I was willing to concede on the vagueness argument as it was not my own and I
 6   was uncertain of its strength and validity, however a clarification of my argument on page 21,
     backed by the conflict between the prosecution’s actions and their own statements in their
 7
     opposition seem to show that the statute is, indeed, invalid under the vagueness doctrine. As
 8
     such, I would be loathe to abandon it, as the prosecution has made my case for me in this
 9   instance.
10

11           (4) The prosecution is again, correct, that I believe the Controlled Substances Act is in
     direct violation of the 5th amendment. Regardless of their numerous quotations of Judicial
12
     Activists promoting the Communist concept of “state owned” property and “state supremacy”
13   over the rights of the common man, common sense dictates that my argument is both solid
14   and backed by the constitution; the prosecution erroneously claims this document grants
     Congress unlimited powers to strip every American of his unalienable rights, should the mood
15
     of the majority swing in that direction.
16
            This is addressed with contention #1 on pages 9-19, and is an underlying theme of this
17   surrebuttal; the unalienable rights of the people are greater than the limited privileged
18
     powers of government.

19
            To further clarify my point I have a few other arguments to make, in light of the
20
     prosecution’s insistence upon citing details and ignoring the obvious issues, as well as their
21   fraudulent assertion that I have enumerated constitutional rights.
22           The prosecution’s allegation that I am not being charged with “possession” of my
23
     private property but am being charged with “distributing” my private property is ridiculous
     and inane, a mere technicality while ignoring the greater issue of my unalienable rights in an
24
     effort to divert attention from them. Property rights include the right to contract with one’s
25   private property, and to dispose of it at one’s will. I will address this on page 11.
26

27          They are also incorrect in their reading of the statute as it clearly states the alleged
     offense is “possession with intent to distribute.” I am indeed being charged with the mere
28


     -5-                            Surrebuttal #9007SR - Dem urrer Motion Surrebuttal by Michael Pohlable
 1   “possession” of my private property and committing a thought crime in violation of their
 2
     alleged right to control me, my actions, and my state of mind.

 3
             An act of congress is not due process, and the entire Controlled Substances Act, is void
 4
     ab initio, for being unconstitutional.
 5
             The CSA is based entirely upon the communistic idea of “State-sole-proprietorship”
 6   established as operating procedure of Congress by Senate resolution 63 from April 24th,1933.
 7
     Congressional resolutions are not law, not due process, and cannot effect the court’s in any
     way.
 8
              The slow encroachment and usurpation of the rights of the people through the
 9
     communist principles established with Senate Resolution 63, and the idea of societal “rights”
10   superior to the rights of an individual, have lead us to forsake our freedoms and constitutional
     foundations. If the government insists on portraying itself as a constitutionally established
11
     public servant, it must be reigned in by the provisions of the amendments, and begin to do the
12
     job it is contracted to do by swearing to uphold and protect the constitution.
13          This oath, to protect and defend the constitutionally established limitations upon the
14   government, supreme in authority to all other oaths, is all that differentiates our nation from a
     nation of subservient subjects.
15
           Violations of this oath are not to be taken lightly, as they lead us towards a despotic
16
     government that completely disregards the rights of the individual citizenry.
17
             No measure of ingenuity or misconstrued efforts to protect the PEOPLE of the nation
18   will be tolerated under the constitutional provisions ensuring a limited government of
     enumerated powers. The government’s purpose is not to protect the people of this nation,
19
     particularly from the people’s own acts proving to be detrimental to themselves, but their
20
     purpose is to protect the indefeasible RIGHTS of the people, ensuring their ability to choose
21   for themselves what is best for themselves. People will undoubtedly make mistakes and suffer
     at times for their actions. This is not the province of the state, and the state must remain
22
     neutral and passive at these junctures, or it will become destructive of the very rights it is
23
     sworn to protect.
24

25          Criminals need to make excuses for their actions. This is all the prosecution appears
26   to have accomplished with their untimely response; justification of their criminal attempts
     upon my life, liberty, and property.
27
            They have not dismissed the accusations against them, but have accepted them and
28
     credited their actions to be valid under constitutional provisions without reservation or
     respect for the amendments. It appears they have done this in an attempt to convince the

     -6-                           Surrebuttal #9007SR - Dem urrer Motion Surrebuttal by Michael Pohlable
     court to join in their criminal conspiracy, punishable under U.S. Code Title 18 Chapter 13
 1
     sections 241 and 242.
 2
             My actions, freely taken with other consenting adults, with a reasonable expectation
 3   of privacy; simple exercises of my constitutionally protected rights, do not need to be
 4
     excused, nor must I seek permission from the government (DEA licenses, Bar licenses,
     business licenses, etc.) prior to exercising these rights.
 5
             To claim otherwise is to completely deprive me of my rights and criminally convert
 6
     these fundamental rights into mere privileges through unconstitutional licencing statutes.
 7   Any statute requiring a license by which one may exercise his unalienable rights is
     unconstitutional and must not be obeyed.
 8
             The prosecution, however, claims that I have no rights - that the government can do
 9
     what it wishes and dictate acceptable conduct. Specifically, they claim that I only have rights
10   issued to me by the government - mere privileges granted to me from an ultimate state-
11   derived source of power with the right to grant and revoke all such privileges.

12           The prosecution is incorrect in their arguments as my rights are unalienable,
     indefeasible, and protected by the constitution, not enumerated within it, and are not mere
13
     privileges bestowed upon me by the privileged government carefully constructed in the
14   constitution with powers derived from the consent and rights of the people.
15          If, indeed, congress and the courts have co-conspired over decades to undermine the
     protections of the rights of the American people through a slow steady encroachment, this
16
     does not excuse the continued criminal usurpation of the people’s rights.
17
            To violate the constitutional protections of the people’s rights is to breach the contract
18   with the American people, waiving any and all implied powers or authority derived from the
19   constitutional contract each public official swears to uphold. Through such a claim, one
     invalidates the very foundation of the office from which they speak.
20
            This motion is not being made in reference to a personal matter; it is not a personal
21
     vendetta against the controlled substances act. While it may have begun that way, it is now a
22   desperate fight for liberty, a fight in which I am willing to give my life should it become
23   necessary, as I have never rescinded my oath of Enlistment to the U.S. Airforce, an oath by
     which I swore to protect and defend the Constitution of the United States from all threats,
24
     foreign and domestic, at whatever cost necessary.
25
            The prosecution’s actions and assertions are direct threats to the constitutional
26   protections of the rights of the American people. I cannot stand by idly, consent to their
27
     mistreatment of myself and my co-defendants, and retroactively waive my rights of property
     and contract so that I may be tried for the “crime” of exercising my rights without express
28
     consent from the government.



     -7-                          Surrebuttal #9007SR - Dem urrer Motion Surrebuttal by Michael Pohlable
            This surrebuttal is but a request for the privileged and limited constitutional
 1
     government to recognize the origin of its authority, and be bound by the contract it has taken
 2   with the people who’s rights and consent grant all powers to which the government may lay
 3   claim.

 4
             All crime requires a corpus delicti - the body of a crime, to be defined as consisting of
 5
     2 parts, a) loss or injury suffered by a party with standing, and b) someone’s unlawful conduct
 6
     resulting in the specific and palpable injury or loss expressed by the plaintiff with standing.
 7   As only the second aspect of the corpus delicti is alleged by the prosecution, no crime exist.
     This case is invalid on its face for failure to state a claim for which relief may be acquired.
 8

 9
             The allegations raised against me are for the allegedly “criminal” act of possession
10
     and intent, as well as actual entry into a consensual contract, to distribute my private
11   property.
12           I find the nature of this property to be irrelevant, as property rights are immutable and
     indefeasible. Rights do not get more fundamental than the basic right to possess the property
13
     which one owns. That which one exchanges one asset in a mutually consensual contract
14
     with another is the only honest way to come into the ownership of property. Possession may
15   be either be by ownership or consent of the owner; consent of the owner amounts to
     privileged use. This is not being debated here, as no claim of ownership is being raised, only
16
     the issue that I possessed the property in question.
17
            Possession by ownership is by divine right.
18
             No allegation is made that the prosecution or undefined plaintiff has a higher claim to
19   this property. Because of this, they lack standing to raise complaint of my possession or the
20   manner in which I may have chosen to discard of the property in question.

21
            If there is no plaintiff with standing, the very jurisdiction of this court is called into
22
     question, and if it is to be shown that this court is without jurisdiction, my presence here is
23   not an act of consent, but is an act of self preservation made under duress.
24          I do not believe the court is willingly involved in the conspiracy against me. I believe
     the court has been deceived in the same manner as the prosecution into acting in a manner
25
     inconsistent with the constitution while believing firmly that their actions were just,
26   necessary, and proper.
27           The prosecution’s claim of legitimacy in the usurpation of my inalienable property
28   rights is utterly without merit, as no limited enumerated power of congress may supercede



     -8-                           Surrebuttal #9007SR - Dem urrer Motion Surrebuttal by Michael Pohlable
     the unalienable rights of any minority group or individual, judicial rulings not-withstanding,
 1
     as they are over-ruled by the Constitution itself, the Supreme Law of the Land.
 2
             My experiences over the last year have shown me that the federal government no
 3   longer respects the rights of the people, rights which it is sworn to protect. The government
 4
     has no place nor duty to defend the people from themselves, and it is a direct violation of
     their oath to protect the rights of the people should they propose measures which do so.
 5
            It is my intent to rectify the wrongs against the American people and restore freedom
 6
     and liberty to this nation that is suffocating in their absence.
 7

 8          I find the statement above to be correct and true. These words, by my own hand,
 9   express my views and my contentions of the exercise of the prosecution in this case. The
     statements above are validated through case law as cited and expressed in depth below,
10
     precluding their dismissal as being frivolous or unfounded.
11

12

13          ______________________
14          Michael Eugene Pohlable                                      March 17th, 2008
15
                         STATEMENT OF FACTS/SUMMARY OF CASE
16

17
            I have unalienable rights of property and contract.
18
                           “That property which a man has honestly
19
                   acquired he retains full control of, subject to these
20
                   limitations: First, that he shall not use it to his
21                 neighbor's injury, and that does not mean that he must
                   use it for his neighbor's benefit; second, that if the devotes
22
                   it to a public use, he gives to the public a right to control
23
                   that use; and third, that whenver the public needs require,
24                 the public may take it upon payment of due
                   compensation.” BUDD v. PEOPLE OF STATE OF
25
                   NEW YORK, 143 U.S. 517 (1892)
26
            I do not have constitutional rights, nor rights granted by the constitution.
27

28




     -9-                          Surrebuttal #9007SR - Dem urrer Motion Surrebuttal by Michael Pohlable
                              “WHEREAS the powers granted under the
 1
                      proposed Constitution are the gift of the people, and
 2                    every power not granted thereby, remains with them,
 3                    and at their will; No right therefore of any
                      denomination, can be cancelled, abridged, restrained
 4
                      or modified by the Congress, by the Senate or House of
 5                    Representatives, acting in any capacity, by the President,
 6                    or any department or officer of the United States”
                      Continental Congress WEDNESDAY, the 25th of
 7
                      JUNE, 1788.
 8

 9
              Congress cannot create rights, as rights are pre-existent to the creation of Congress.
10

11
                             Men are endowed by their Creator with certain
12                    unalienable rights,-'life, liberty, and the pursuit of
13                    happiness;' and to 'secure,' not grant or create, these
                      rights, governments are instituted.” BUDD v.
14
                      PEOPLE OF STATE OF NEW YORK, 143 U.S. 517
15                    (1892)
16

17            Congress cannot criminalize the claim nor exercise of a constitutionally protected
18   right.
19                          "The claim and exercise of a constitutional right cannot
                     be converted into a crime." Miller v. US, 230 F 486, at 489.
20
              The government’s powers are derived from my rights and consent.
21

22

23
             No powers of government may supersede the rights of myself, nor another person, as
      those powers are not vested in the person attempting to grant those powers to the
24
      government.
25
                             "If there be any conflict between these two
26                   provisions, the one found in the Amendments must
27
                     control, under the well-understood rule that the last
                     expression of the will of the lawmaker prevails over an
28
                     earlier one." Schick vs United States [(1904) 195 US 65,
                     49 L.Ed. 99, 24 S. Ct. 826

      -10-                          Surrebuttal #9007SR - Dem urrer Motion Surrebuttal by Michael Pohlable
            No party with standing has made a claim against myself or my actions.
 1
                           “Standing in no way depends on the merits of the
 2
                    plaintiff’s contention that particular conduct is illegal.”
 3                  Watkins v. Resorts Intern. Hotel & Casino, 591 A.2d 592,
 4                  601 (N.J. 1991).

 5                           “There are three requirements for Article III
                    standing: (1) injury in fact, which means an invasion of
 6
                    a legally protected interest that is (a) concrete and
 7                  particularized, and (b) actual or imminent, not
 8                  conjectural or hypothetical; (2) a causal relationship
                    between the injury and the challenged conduct, which
 9
                    means that the injury fairly can be traced to the challenged
10                  action of the defendant, and has not resulted from the
11                  independent action of some third party not before the
                    court; and (3) a likelihood that the injury will be redressed
12
                    by a favorable decision, which means that the prospect of
13                  obtaining relief from the injury as a result of a favorable
14                  ruling is not too speculative.” Lujan v. Defenders of
                    Wildlife, 112 S. Ct. 2130, 2136 (1992)
15
            There is no “crime” with which I am being charged, no allegations for which I must
16
     defend myself;
17
                            "Mere legislative fiat may not take the place of
18                  fact in the determination of issues involving life, liberty
19                  and property. Manley v. State of Georgia, 279 U.S. 1, 49
                    S.Ct. 215, 73 L.Ed. 575...The ultimate fact to be
20
                    established here, is illegal possession of a gun. The fact
21                  proven would be merely the legislative presumption.
22                  There would be no actual proof...Under our law the
                    corpus delecti must be proved; here it is presumed...The
23
                    Legislature has no power to declare one guilty of a
24                  crime; that is the function of the court after due proof. It is
25                  unconstitutional for the Legislature to presume the guilt
                    of the accused. Under this section there is nothing
26
                    against which to defend, because no crime has been
27                  proved." People v. Pinder, 9 N.Y.S.2d 311, 310-311.
28


            A legislated presumption is not a criminal offense.

     -11-                          Surrebuttal #9007SR - Dem urrer Motion Surrebuttal by Michael Pohlable
 1          Congress has no power to create rights, as rights are pre-existent to the formation of
     government. As congress cannot create rights, to include “rights of society,”, statutory
 2
     standing is a myth created by the prosecution in an attempt to legitimize their criminal actions
 3   against myself, and others.
 4                           “Standing in no way depends on the merits of
 5                  the plaintiff’s contention that particular conduct is
                    illegal.” Watkins v. Resorts Intern. Hotel & Casino, 591
 6
                    A.2d 592, 601 (N.J. 1991).
 7

 8
                            Unconstitutionality is illegality of the highest order. --
 9                   (Board of Zoning Appeals V. Decatur Company of Jehovah's
10                   Witnesses, 233 Ind. 83, 117 NE 2nd. 115)

11
                            “An unconstitutional statute is an utter nullity, is void
12                   from the date of its enactment, and is incapable of creating
13                   any rights.” - Probst V. Board of Education Lands and Funds,
                     DC Neb 103 F
14

15

16

17                                ARGUMENTS/MEMORANDUM OF
                                      AUTHORITIES
18

19                   A.      Origin of Rights
20          The founding documents of our nation, both the Declaration of
     Independence and the Constitution, provide for rights that are pre-
21
     existent to the creation of the government, that are unalienable, and
22   cannot be breached without consent, compensation, or due process of
23   law.
                           "We hold these truths to be self-evident, that all men are
24
                   created equal, that they are endowed by their Creator with certain
25                 unalienable Rights, that among these are Life, Liberty and the
26                 pursuit of Happiness. — That to secure these rights, Governments
                   are instituted among Men, deriving their just powers from the
27
                   consent of the governed..." Declaration of Independence.
28




     -12-                          Surrebuttal #9007SR - Dem urrer Motion Surrebuttal by Michael Pohlable
 1          It may be argued that the Declaration of Independence has no legal bearing, and I use it
     only to reiterate a point. Caselaw also prescribes for the protection of man’s unalienable rights,
 2
     not their creation by the government;
 3

 4                           “Surely the matters in which the public has the most interest
                    are the supplies of food and clothing; yet can it be that by reason of
 5
                    this interest the state may fix the price at which the butcher must
 6                  sell his meat, or the vendor of boots and shoes his goods? Men are
 7                  endowed by their Creator with certain unalienable rights,-'life,
                    liberty, and the pursuit of happiness;' and to 'secure,' not grant
 8
                    or create, these rights, governments are instituted.”
 9

10         In a continuance of this ruling, it is established that no man’s property may be taken
     without due compensation, so long as he does not injure his neighbor with its use,
11

12                          “That property which a man has honestly acquired he
13                  retains full control of, subject to these limitations: First, that he
                    shall not use it to his neighbor's injury, and that does not mean
14
                    that he must use it for his neighbor's benefit; second, that if the
15                  devotes it to a public use, he gives to the public a right to control
16                  that use; and third, that whenver the public needs require, the
                    public may take it upon payment of due compensation.” BUDD
17
                    v. PEOPLE OF STATE OF NEW YORK, 143 U.S. 517 (1892)
18

19           I find it contemptible that the prosecution claims Congress may deprive a man of his
     RIGHT to possess his private property, then deprive that man of his property should he choose
20
     to possess it because of his ownership thereof. This injury, suffered by all people of this nation,
21   is an injury of fundamental right, not merely the loss of one’s property, but the loss of one’s
22   basic liberties.
             If congress indeed possesses this authority, there is no protection from the majority
23
     opinion. If one’s right to property can be revoked with the stroke of a pen, what is to prevent
24   Congress from striking down one’s right to life with the same pen?
25
             There is no contention of theft nor of property being seized without compensation in
26
     this case while speaking strictly of myself and my involvement with the prosecution and its
27   agents. There is only the contention that I possessed something to which the government had a
28   higher claim than myself. As the government consented to contract with me, compensate me
     for handing over ownership rights of the property itself, I do not understand their allegation


     -13-                          Surrebuttal #9007SR - Dem urrer Motion Surrebuttal by Michael Pohlable
 1   that I possessed the property without their permission, prior to the right of possession being
     handed, through consensual contract, to them.
 2

 3          No injury from my possession or distribution is specified nor alleged to my knowledge.
 4   I am still seeking the presentation of a plaintiff with standing in this case.
            The property in question was not given for public use, and the public may make no
 5
     claim over it. As such, the government has no intrinsic right to control the property in
 6   question; no claim against its possession or manner of distribution.
 7          No man, nor group, may choose to waive the rights of another. The prosecution
     claims that a majority vote of Congress chose to waive my property rights, converting them
 8
     into mere privileges to be granted or revoked at whim. This is a false claim against my rights.
 9          The 9th amendment makes it abundantly clear than rights are not enumerated.
10
                           “The enumeration in the Constitution, of certain rights
11
                    shall not be construed to deny or disparage others retained by the
12                  people.”
13
             And yet the prosecution claims that I have no “fundamental right” to possess
14
     property which I came by through mutual consent and honest transaction.
15           Property rights are held to be sacred and unalienable, as one without the right to
16   possess or own property is nothing but property himself; a slave, incapable of pursuing
     happiness for himself.
17
             The allegations that MDMA is not property are preposterous, as is the allegation
18   that I may not contract freely and consensually with my private property with another
19   adult. The prosecution’s claim that dispensing of one’s private property is not equal to
     mere possession lacks merit, as property rights include the right to dispose of one’s property
20
     as they see fit.
21                        “All things are not the subject of property the sea, the air, and
22                    the like, cannot be appropriated; every one may enjoy them, but he
                      has no exclusive right in them. When things are fully our own, or
23
                      when all others are excluded from meddling with them, or from
24                    interfering about them, it is plain that no person besides the
25                    proprietor, who has this exclusive right, can have any, claim
                      either to use them, or to hinder him from disposing of them as,
26
                      he pleases; so that property, considered as an exclusive right to
27                    things, contains not only a right to use those things, but a right
28                    to dispose of them, either by exchanging them for other things,
                      or by giving them away to any other person, without any


     -14-                          Surrebuttal #9007SR - Dem urrer Motion Surrebuttal by Michael Pohlable
 1                 consideration, or even throwing them away. Rutherf. Inst. 20;
                   Domat, liv. prel. tit. 3; Poth. Des Choses; 18 Vin. Ab. 63; 7 Com.
 2
                   Dig. 175; Com. Dig. Biens. See also 2 B. & C. 281; S. C. 9 E. C. L.
 3                 R. 87; 3 D. & R. 394; 9 B. & C. 396; S. C. 17 E. C. L. R. 404; 1 C. &
 4                 M. 39; 4 Call, 472; 18 Ves. 193; 6 Bing. 630.”
                   (http://legal-dictionary.thefreedictionary.com/property)
 5

 6           Rights exist in an unchecked manner until the rights of another are violated without
 7   their consent (Constitutional Common Law).

 8
                           “To gain standing to bring an action, a plaintiff must
 9                 allege a distinct and palpable injury. Warth v. Seldin, 422
10                 U.S. 490, 501.” Sears v. Hull, 961 P.2d 1013, 1017 (1998).

11
             Unless the rights of another are violated, no standing exists, and no court at any level
12   has jurisdiction to hear such a case or controversy.
13
                              "In essence the question of standing is whether the
14
                  litigant is entitled to have the court decide the merits of the
15                dispute or of particular issues. Standing doctrine embraces...
16                the general prohibition on a litigant's raising another
                  person's legal rights, the rule barring adjudication of
17
                  generalized grievances more appropriately addressed in the
18                representative branches, and the requirement that a
19                plaintiff's complaint fall within the zone of interests
                  protected by the law invoked. The requirement of
20
                  standing, however, has a core component derived directly
21                from the Constitution. A plaintiff must allege personal
22                injury fairly traceable to defendant’s allegedly unlawful
                  conduct and likely to be redressed by the requested relief."
23
                  Allen v. Wright, 468 U.S. 737 (1984)
24

25           A further reading of Allen V. Wright will reveal that the loss or harm suffered by
     the plaintiff must be specific and actual, not hypothetical nor conjectural.
26
             The claim that the possession of MDMA leads to an injury suffered by “interstate
27   commerce” is both hypothetical and conjectural, and extremely vague and abstract.
28                          “the constitutional component of standing
                    doctrine incorporates concepts concededly not susceptible


     -15-                         Surrebuttal #9007SR - Dem urrer Motion Surrebuttal by Michael Pohlable
 1                 of precise definition. The injury alleged must be, for
                   example, "‘distinct and palpable,'" Gladstone, Realtors v.
 2
                   Village of Bellwood, 441 U.S. 91, 100 (1979) (quoting
 3                 Warth v. Seldin, supra, at 501), and not "abstract" or
 4                 "conjectural" or "hypothetical," Los Angeles v. Lyons,
                   461 U.S. 95, 101-102 (1983); O'Shea v. Littleton, 414 U.S.
 5
                   488, 494 (1974). The injury must be "fairly" traceable to the
 6                 challenged action, and relief from the injury must be
 7                 "likely" to follow from a favorable decision. See Simon v.
                   Eastern Kentucky Welfare Rights Org., 426 U.S. at 38, 41.”
 8

 9           I might also point out that the invisible injury, as claimed by the prosecution, is
10   held to be suffered by the public. To rule in favor of the prosecution in this case will place
     a further burden on society, those making the claim via the prosecutor, as well as all trade,
11
     intrastate, interstate, and foreign, as the cost to taxpayers will be increased $85,000-
12   $90,000 per year in order to compensate for my imprisonment.
13           If society is to be punished for creating a demand in the delivery of a product the
     government does not believe to be property, a ruling in favor of the prosecution is required.
14
     If society is NOT on trial here, I cannot see how relief is likely to be granted by ruling in
15   favor of the prosecution, as the “relief” only places a further burden upon the society the
16   prosecution claims to be protecting; a society to which no actual harm is alleged from in
     the case of the prosecution.
17

18          A ruling in favor of the prosecution may be a moot issue, as without standing, the
19   prosecution fails to raise jurisdiction of the court.
                         "Lack of standing is a potential jurisdictional defect,
20
                  which may not be waived and may be raised at any stage
21                of the proceedings, even sua sponte by the appellate
22                court." Gunaji v. Macias, 31 P.3d 1008.

23
                       "Standing is an aspect of subject matter jurisdiction."
24                Transcontinental Gas Line Corp. v. Calco Enterprises, 511
25                S.E.2d 671.

26
                      "Standing is an aspect of justiciability which may not
27                be waived." Strank v. Public Employees Retirement
28                Board, 108 P.3d 1058.



     -16-                         Surrebuttal #9007SR - Dem urrer Motion Surrebuttal by Michael Pohlable
 1           The people may not hold a claim against the government without personal injury or
     loss in violation of the individual’s rights. The raising of 3rd party rights is prohibited to
 2
     every American. The government should be held to the same standard, especially when
 3   the rights being raised are hypothetical rights of society, mere allegations of conjectural
 4   harm to a collective group of individuals who are each capable of raising their own rights
     should they, indeed be harmed by another’s actions.
 5
             Congress has no enumerated power to create rights. As such, the concept of
 6   statutory standing, raised by the prosecution on January 11th at the last hearing before this
 7   court, is in conflict with the constitution.
             Case law also nullifies such a claim;
 8

 9                          “Standing in no way depends on the merits of the
10                   plaintiff’s contention that particular conduct is illegal.”
                     Watkins v. Resorts Intern. Hotel & Casino, 591 A.2d 592,
11
                     601 (N.J. 1991).
12

13          I do not have the “right” to prohibit you from contracting with your private
     property.
14
            I do not have the “right” to gather a group of like minded men to prohibit you from
15   contracting with your private property.
16          I do not have the “right” to restrain your from using your private property so long
     as I am not injured from its use.
17

18          Neither do you possess similar “rights” to restrict nor prohibit my private conduct.
19   Neither can you pass a power you do not retain yourself onto another (grant such
     authority to congress).
20

21

22             B. Powers Of Congress/Government
               (1) the government was established/instituted for one purpose i.e., to secure/protect
23
     rights;
24                          “Men are endowed by their Creator with certain
25                    unalienable rights,-'life, liberty, and the pursuit of
                      happiness;' and to 'secure,' not grant or create, these rights,
26
                      governments are instituted.” BUDD v. PEOPLE OF STATE
27                    OF NEW YORK, 143 U.S. 517 (1892)
28




     -17-                           Surrebuttal #9007SR - Dem urrer Motion Surrebuttal by Michael Pohlable
 1          (2) the courts being a part of the government have the same singular purpose i.e., to
     secure/protect rights;
 2
            (3) the courts' jurisdiction has one purpose i.e., to secure/protect rights;
 3          (4) Standing to invoke a court's jurisdiction requires the allegation a right is being
 4   violated.
                            "An analysis of standing begins with a determination
 5
                    of whether the party seeking relief has sustained an injury
 6                  (see Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d
 7                  761, 772-773, 570 N.Y.S.2d 778, 573 N.E.2d 1043 [1991])."
                    Mahoney v. Pataki, 772 N.E.2d 1118, 1122 (N.Y. 2002).
 8

 9                         “We examined, accordingly, the substance of the
10                 plaintiff’s constitutional and civil rights claims, concluding
                   that they implicated no legally protected right under the
11
                   constitution. We affirmed, therefore, the trial court’s
12                 dismissal both on lack of standing and on the merits.” Daye
13                 v. State, 769 A.2d 630, 633 (Vt. 2000).

14
                          “To satisfy the standing requirement, a plaintiff
15                 must show (1) injury-in-fact, (2) causation, and (3)
16                 redressibility; thus, the plaintiff must allege a personal
                   injury traceable to the defendant’s conduct that the court
17
                   can remedy…” Brigham v. State, 889 A.2d 715.
18

19                         “Component parts of every crime are the occurrence of
                   a specific kind of injury or loss, somebody’s criminality as
20
                   source of the loss, and the accused’s identity as the doer of the
21                 crime; the first two elements are what constitutes the concept
22                 of “corpus delecti.” U.S. v. Shunk, 881 F.2d 917, 919 C.A. 10
                   (Utah).
23
            (5) No rights are alleged to have been violated by my consensual acts.
24

25          As found in the constitution, the government has only enumerated powers derived
     from the RIGHTS of the people.
26

27                       “WHEREAS the powers granted under the proposed
28                 Constitution are the gift of the people, and every power not
                   granted thereby, remains with them, and at their will; No


     -18-                         Surrebuttal #9007SR - Dem urrer Motion Surrebuttal by Michael Pohlable
 1                 right therefore of any denomination, can be cancelled,
                   abridged, restrained or modified by the Congress, by the
 2
                   Senate or House of Representatives, acting in any capacity, by
 3                 the President, or any department or officer of the United States”
 4                 Continental Congress WEDNESDAY, the 25th of JUNE,
                   1788.
 5

 6           As I do not have the right to prohibit another from entering into a consensual
 7   contract with a 3rd party,
             As I do not have the right to get together a group and prohibit another from entering
 8
     into a consensual contract with a 3rd party,
 9           As any majority group does not have the right to deprive a minority group of their
10   rights,

11
            We, as a people, cannot collectively give this authority to Congress, as it is not a
12   power inherent in ourselves, nor in a majority group. No such authority exists for us to
13   grant to Congress, and Congress has no inherent RIGHTS by which they may make
     such a claim.
14

15           The prosecution ignores this argument by making the claim that it is constitutional
16   for Congress to divert its interests and hand certain powers over to others, in this particular
     case, the ability to amend the CSA and schedule other substances. Congress itself cannot
17
     possess such authority, so the constitutionality of congress passing on such authority is
18   moot. Congress cannot pass on powers which it, itself cannot possess.
19
             The enumerated powers are a list of specific responsibilities found in Article 1 Section
20
     8 of the United States Constitution, which enumerate the authority granted to the United
21   States Congress. Congress may exercise only those powers that are stated in the
22   Constitution, limited by the Bill of Rights and the other protections found in the
     Constitutional text.
23
                           The Constitution creates a Federal Government of enumerated
24                  powers. See U.S. Const., Art. I, 8. As James Madison wrote, "[t]he
25                  powers delegated by the proposed Constitution to the federal
                    government are few and defined. Those which are to remain in the
26
                    State governments are numerous and indefinite." The Federalist No. 45,
27                  pp. 292-293 (C. Rossiter ed. 1961). This constitutionally mandated
28                  division of authority "was adopted by the Framers to ensure



     -19-                         Surrebuttal #9007SR - Dem urrer Motion Surrebuttal by Michael Pohlable
 1                 protection of our fundamental liberties." U.S. v. Lopez 14 U.S. 549
                   (1995)
 2

 3           While Congress may indeed regulate interstate commerce, they may not, by any
 4   means, deprive any individual of their rights of property and contract without due process of
     law (5th Amendment).
 5

 6                          “...The commerce power "is the power to regulate; that
 7                 is, to prescribe the rule by which commerce is to be governed.
                   This power, like all others vested in Congress, is complete in
 8
                   itself, may be exercised to its utmost extent, and acknowledges
 9                 no limitations, other than are prescribed in the
10                 constitution.” U.S. v. Lopez 14 U.S. 549 (1995)

11
                          "Mere legislative fiat may not take the place of fact in
12
                  the determination of issues involving life, liberty and
13                property. Manley v. State of Georgia, 279 U.S. 1, 49 S.Ct. 215,
14                73 L.Ed. 575...The ultimate fact to be established here, is
                  illegal possession of a gun. The fact proven would be merely
15
                  the legislative presumption. There would be no actual
16                proof...Under our law the corpus delecti must be proved; here
17                it is presumed...The Legislature has no power to declare one
                  guilty of a crime; that is the function of the court after due
18
                  proof. It is unconstitutional for the Legislature to presume
19                the guilt of the accused. Under this section there is nothing
20                against which to defend, because no crime has been proved."
                  People v. Pinder, 9 N.Y.S.2d 311, 310-311.
21

22

23           The claim that my exercise of these rights was lawfully suspended when I was the age
     of 4, because of a 16 word clause in the constitution which the prosecution and activist
24
     judges have in the passed interpreted to be excluded from all Constitutional restrictions on
25   congressional power, is frivolous and invalid pursuant to this ruling;
26
                          "If there be any conflict between these two provisions, the one
27
                  found in the Amendments must control, under the well-understood
28                rule that the last expression of the will of the lawmaker prevails over



     -20-                        Surrebuttal #9007SR - Dem urrer Motion Surrebuttal by Michael Pohlable
 1                an earlier one." Schick vs United States [(1904) 195 US 65, 49 L.Ed.
                  99, 24 S. Ct. 826
 2

 3         The opinion of the court in Schick is expanded to reiterate their reasoning why no
 4   power granted in the articles of the constitution may supercede any rights protected by the
     amendments; the last expression of the will of the lawmaker prevails over an earlier one.
 5
           The prosecution’s claim that the “Necessary and proper” clause or the “Interstate
 6   Commerce Clause” create the power of Congress to violate the 5th Amendment with
 7   impunity fails under the simplest scrutiny.

 8
                            “...The commerce power "is the power to regulate; that is, to
 9                 prescribe the rule by which commerce is to be governed. This power,
10                 like all others vested in Congress, is complete in itself, may be exercised
                   to its utmost extent, and acknowledges no limitations, other than are
11
                   prescribed in the constitution.
12                          “...When cases involving these laws first reached this Court, we
13                 imported from our negative Commerce Clause cases the approach
                   that Congress could not regulate activities such as "production,"
14
                   "manufacturing," and "mining." See, e.g., United States v. E. C.
15                 Knight Co., 156 U.S. 1, 12 (1895)” U.S. v. Lopez 14 U.S. 549 (1995)
16
             I would like to make a quick comment that in violation of U.S. v. Knight Co. The
17
     CSA claims to prohibit both the production and manufacture of products.         If U.S. v.
18   Lopez does provide for the CSA’s existence, nearly 20 years of unconstitutional oppression
19   arose from this statute, and the courts have unceremoniously justified this criminal
     usurpation of the rights of the common man through frustration, not through judicial enquiry
20
     and enforcement of the constitutional protections as required by their oaths of office.
21

22         In order for my rights to possess my private property to have been abridged, there
     must be due process of law. An act of congress does not stand as due process.
23

24                         “Those terms ‘law of the land’ (meaning “due
25                 process of law”) do not mean merely an act of the General
                   Assembly (congress). If they did, every restriction upon the
26
                   legislative authority would be at once abrogated. For what
27                 more can a citizen suffer, than to be “taken, imprisoned,
28                 disseized of his freehold, liberties, and privileges; be outlawed,
                   exiled, and destroyed; and be deprived of his property, his


     -21-                         Surrebuttal #9007SR - Dem urrer Motion Surrebuttal by Michael Pohlable
 1                 liberty and his life,” without crime? … In reference to the
                   infliction of punishment and divesting of the rights of
 2
                   property, it has been repeatedly held in this state and it is
 3                 believed, in every other of the Union, that there are
 4                 limitations upon the legislative power, notwithstanding
                   those words; and that the clause itself means that such
 5
                   legislative acts, as profess in themselves directly to punish
 6                 persons or deprive the citizen of his property, without trial
 7                 and before judicial tribunals, and a decision upon the
                   matter of right, as determined by the laws under which it
 8
                   vested, according to the course, mode and usages of the
 9                 common law as derived from our forefathers, are not
10                 effectually “laws of the land” for those purposes…
                            The sole inquiry that remains is whether the office of
11
                   which the Act deprives… (office = object in question) is
12                 property. It is scarcely possible to make the proposition
13                 clearer to a plain mind, accustomed to regard things according
                   to practical results and realities, than by barely stating it. For
14
                   what is property; that is, what do we understand by the
15                 term? It means, in reference to the thing, whatever a
16                 person can possess and enjoy by his right; and in reference
                   to the person, he who has the right to the exclusion of
17
                   others, is said to have the property.”Hoke v Henderson 15
18                 N.C. 1 17 25 Am Dec 677
19
             If that which I bought with the fruits of my labor is NOT my property, as the
20
     prosecution would have us believe, what is it? By what power of due process were the fruits
21   of my labor, my time, talents, and efforts converted into barter currency, then traded for
22   goods which I came to own without question or challenge...
             At what point did my property fail to be my property and become the ward of the
23
     state, which I am being tried for possessing without their consent? At what point did my
24   rights convert into privileges by which I must attain consent (license) from the government in
25   order to exercise them?

26

27         It is also not unreasonable to take the position that Congress may only prescribe
28   punishments for activities which severely effect Interstate commerce in a negative manner,



     -22-                         Surrebuttal #9007SR - Dem urrer Motion Surrebuttal by Michael Pohlable
 1   not prohibit interstate commerce itself, as to do so is not regulation but de-regulation of
     interstate commerce.
 2
             Congress is tasked with the regulation of interstate commerce. Prohibition is de-
 3   regulation and requires a constitutional amendment (see the 18th and 21st amendments) in
 4   order to take effect.
             The Controlled substances Act is an attempt of Congress to shirk their responsibility to
 5
     regulate commerce by turning it over to a black/unregulated/unpoliced market, thus
 6   endorsing the allegedly “criminal” industry Congress itself, through a fraudulent claim by
 7   which they state they will stamp out such commerce, has created by unconstitutionally
     forgoing its responsibilities.
 8

 9          C. Criminal Acts
10
             For a four month duration, agents of the federal government contracted with and
11
     monitored the actions of defendants Pohlable and others through the fraudulent and
12   deceptive use of an informant and non-consensual, undisclosed, hidden video and audio
13   monitoring equipment inside of a private apartment in violation of defendant’s protected 4th
     amendment right to privacy where it is reasonably expected.
14
             During this time no charges were pressed against the defendant, any of the co-
15   defendants in this case, nor were any criminal complaints filed related to the conduct of
16   defendant Pohlable, nor any other co-defendant in this alleged case.
             There was no pending warrant for the arrest of defendant Pohlable at this time.
17
     Defendant Pohlable had never been charged with a crime, nor arrested prior to the issuance
18   of a warrant based upon the prosecution’s claim, without standing nor allegations of a
19   plaintiff, that the defendant was conducting unlawful activities.
             As no plaintiff is alleged to have been harmed or suffered from the alleged acts, the
20
     prosecution fails to invoke jurisdiction of this or any court.
21

22                        “There are three requirements for Article III standing:
                  (1) injury in fact, which means an invasion of a legally
23
                  protected interest that is (a) concrete and particularized, and (b)
24                actual or imminent, not conjectural or hypothetical; (2) a causal
25                relationship between the injury and the challenged conduct, which
                  means that the injury fairly can be traced to the challenged action
26
                  of the defendant, and has not resulted from the independent action
27                of some third party not before the court; and (3) a likelihood that
28                the injury will be redressed by a favorable decision, which means
                  that the prospect of obtaining relief from the injury as a result of a


     -23-                         Surrebuttal #9007SR - Dem urrer Motion Surrebuttal by Michael Pohlable
 1                  favorable ruling is not too speculative.” Lujan v. Defenders of
                    Wildlife, 112 S. Ct. 2130, 2136 (1992)
 2

 3          In stark contrast to Mr. Keenan’s allegations that the statute provides
 4   standing in this case, the courts have ruled otherwise.

 5
                              “Standing in no way depends on the merits of the
 6                     plaintiff’s contention that particular conduct is illegal.”
 7                     Watkins v. Resorts Intern. Hotel & Casino, 591 A.2d 592,
                       601 (N.J. 1991).
 8

 9          Also;
10                             "Proof of the corpus delecti is required in all
                       criminal cases...There are three basic elements in the proof
11
                       of a crime: (1) the occurrence of loss or injury, (2)
12                     criminal causation of that loss or injury and (3) the
13                     identity of the defendant as the perpetrator of the crime.
                       However, it is firmly established in this State that the term
14
                       corpus delecti embraces only the first two of these
15                     elements-loss or injury and criminal causation." State v.
16                     Hill, 221 A.2d 725, 728.

17
             As well as;
18                             “Component parts of every crime are the occurrence
19                     of a specific kind of injury or loss, somebody’s
                       criminality as source of the loss, and the accused’s identity
20
                       as the doer of the crime; the first two elements are what
21                     constitutes the concept of “corpus delecti.” U.S. v. Shunk,
22                     881 F.2d 917, 919 C.A. 10 (Utah).

23
            And;
24                         “The plaintiff must show that he himself is injured by
25                  the challenged action of the defendant. The injury may be
                    indirect, see United States v. SCRAP, 412 U.S. 669, 688, 93 S.Ct.
26
                    2405, 2416, 37 L.Ed.2d 254 (1973), but the complaint must
27                  indicate that the injury is indeed fairly traceable to the
28                  defendant’s acts or omissions. Simon v. Eastern Ky. Welfare
                    Rights Org., 426 U.S. 26, 41-42, 96 S.Ct. 1917, 1925-1926, 48


     -24-                          Surrebuttal #9007SR - Dem urrer Motion Surrebuttal by Michael Pohlable
 1                  L.Ed.2d 450 (1976); O’Shea v. Littelton, 414 U.S. 488, 498, 94
                    S.Ct. 669, 677, 38 L.Ed2d 674 (1974); Linda R. S. v. Richard D.,
 2
                    410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973).”
 3                  Vil. of Arlington Hts. v. Metro Housing Dev., 429 U.S. 252, 262.
 4

 5
            Even Further;
 6                          “First we must address the issue of standing, a judge-made
 7                  doctrine based on the idea that ‘[a] court may and properly
                    should refuse to entertain an action at the instance of one who
 8
                    rights have not been involved or infringed.’ 59 AmJur.2d
 9                  Parties § 30 (1987). In state law it parallels the constitutional
10                  restriction on federal court jurisdiction to “cases and
                    controversies.” U.S. Const. Art. 3 § 2. It has been said that no
11
                    case or controversy is presented where the plaintiff lacks standing
12                  to sue. Gilligan v. Morgan, 413 U.S. 1…“In determining
13                  whether the plaintiff has a personal stake sufficient to confer
                    standing, the focus should be on whether the complaining party
14
                    has alleged an injury in fact, economic or otherwise…” Mayhew
15                  v. Wilder, 46 S.W.3rd 760, 767.
16
             The prosecution fails to allege an injury or harm has even taken place, let alone one
17
     which is distinct and palpable.
18           Their accusation that by exercising my rights of property and contract, i.e. engagement
19   in commerce, is an act for which Congress has the authority to prohibit outright as it “severely
     effects (interstate) commerce”, is nonsensical and circular.
20
             The effects of my actions on interstate commerce are both hypothetical and
21   conjectural. “Severely effects” interstate commerce... HOW?
22
                           “In order to establish standing, a party must demonstrate three
23
                    essential elements. Metropolitan Air Research Testing Auth. Inc., v.
24                  Metropolitan Gov’t of Nashville and Durston County, 842 S.W.2d 611,
25                  615…First, the party must demonstrate that it has suffered an injury
                    which is ‘distinct and palpable,’…and not conjectural or
26
                    hypothetical…Second, the party must establish a causal connection
27                  between the injury and the conduct of which he complains…Third, it
28                  must be likely that a favorable decision will redress the injury…These
                    elements are indispensable to the plaintiff’s case, and must be


     -25-                          Surrebuttal #9007SR - Dem urrer Motion Surrebuttal by Michael Pohlable
 1                   supported by the same degree of evidence at each stage of litigation
                     as other matters on which plaintiff bears the burden of proof. Lujan,
 2
                     504 U.S. at 560…” Petty v. Daimler/Chrysler Corp., 91 S.W.3d 765.
 3

 4          The prosecution’s claim that Congress may prohibit that which they are tasked with
     regulating, so that they are no longer required to regulate it, is a criminal act of negligence on
 5
     behalf of congress, as the constitutional clearly prescribes this as one of the duties and
 6   obligations of Congress.
 7          If Congress does not wish to fulfil the duties they have been contracted through the
     constitution to do, there is no reason to consent to their existence, and Congress ought to be
 8
     abolished as it no longer protects the rights of, nor serves the people as it is sworn by oath to
 9   do.
10
             After contracting with the informant, funding the informant, and consenting to permit
11
     the informant to act on their behalf, demanding the informant commit what the prosecution
12   alleges as “criminal conduct” and a “dire threat” to interstate commerce, for a period of four
13   months, did an consenting and co-conspiring observer deem it important enough to file what
     they allege is a criminal complaint against my consensual conduct.
14
             As precedence for providing for the prohibition of such conduct by Agent James
15   Donovan - as he was a contributing co-conspirator in these alleged “criminal” acts,
16
                             “Here we are concerned with neither eavesdroppers nor
17
                     thieves. Nor are we concerned with the acts of private
18                   individuals. . . . We are concerned only with the acts of
19                   federal agents whose powers are limited and controlled by
                     the Constitution of the United States.
20
                             The Eighteenth Amendment has not, in terms,
21                   empowered Congress to authorize anyone to violate the
22                   criminal laws of a State. And Congress has never purported
                     to do so. Compare Maryland v. Soper, 270 U.S. 9. The terms of
23
                     appointment of federal prohibition agents do not purport to
24                   confer upon them authority to violate any criminal law.
25                   Their superior officer, the Secretary of the Treasury, has not
                     instructed them to commit crime on behalf of the United
26
                     States. It may be assumed that the Attorney General of the
27                   United States did not give any such instruction.” Olmstead v.
28                   United States 277 U.S. 438



     -26-                           Surrebuttal #9007SR - Dem urrer Motion Surrebuttal by Michael Pohlable
 1           As a co-conspirator in these acts, Agent Donovan was in violation of both Federal and
     State laws. There is no statutory provision for an agent of the government to persist in the
 2
     allegedly criminal activities prohibited outright by the statute. Even if he is granted immunity
 3   to the federal laws from his position in the federal government, a blatant act of favoritism and a
 4   violation of the equal protections clause, he is not made immune from state statues also
     claiming to prohibit such conduct.
 5

 6            There is also no statutory provision allowing for the employ or utilization of private
 7   citizens to commit these acts at the behest of government agents. To do so imposes the very
     void for vagueness doctrine the prosecution claims does not exist. By their own admission, the
 8
     statue is invalid as it is void under the concept of arbitrarily discriminatory and selective
 9   enforcement. If the state may consent and encourage such conduct and grant immunity from
10   enforcement of this statute, it is being discriminatory and selective in its enforcement.
              The case for vagueness was provided by the prosecution in their attempt to discredit it;
11
     I’ll not quote all of their case law, but here is an example;
12

13                          “The void-for-vagueness doctrine requires that a penal
                    statute define the criminal offense with sufficient definiteness
14
                    that ordinary people can understand what conduct is
15                  prohibited and in a manner that does not encourage arbitrary
16                  and discriminatory enforcement.” Kolender v. Lawson, 461
                    U.S. 352, 357 (1983).”
17

18           If certain conduct is illegal, one may not be licenced to do it (If one can imagine a
19   license to rob banks...). The vagueness doctrine is backed again by the governments use of,
     encouragement of, and consent to breech the law by the informant, who was given
20
     discriminatory immunity to the laws. Agent James Donovan was also granted discriminatory
21   immunity.
22
                           “We are concerned only with the acts of federal
23
                    agents whose powers are limited and controlled by the
24                  Constitution of the United States.
25                         The terms of appointment of federal prohibition
                    agents do not purport to confer upon them authority to
26
                    violate any criminal law” Olmstead v. United States 277 U.S.
27                  438
28




     -27-                          Surrebuttal #9007SR - Dem urrer Motion Surrebuttal by Michael Pohlable
 1           It is both arbitrary and discriminatory to enforce a statute against those the government
     fraudulently seeks out in what is perceived as a mutually consensual contract, yet they fail to
 2
     enforce the law against those that know they are contracting with the government.
 3           Unless both Agent James Donovan, the mastermind and instigator of the entirety of
 4   the allegedly criminal conduct, and the informant, who is not licensed by the DEA and
     committed the exact same consensual transactions I am being tried for, have identical charges
 5
     pressed against them as co-defendants in this case, the prosecution is discriminating against
 6   my rights and the rights of my co-defendants by enforcing this statute only against us.
 7
             Agent James Donovan, while being in contact with, contracting with, and funding the
 8
     informant to purchase, possess, and distribute the property in question, is also a co-conspirator
 9   in this case, equally liable for his conduct under Title 21, United States Code, Section
10   841(a)(1) and 846.
             The informant is also equally liable under these same statutes for conspiring to,
11
     possessing, possessing with intent to distribute, and distribution of the allegedly “controlled
12   substance.”
13           The prosecution is choosing where and when to enforce these laws in order to serve
     purposes unknown to myself.
14

15          The manner in which the prosecution chooses to discriminate against those they will
16   charge with these crimes and which ones they will endorse and reward for their continued
     criminal conduct is in direct conflict violation of the vagueness doctrine.
17

18

19           After four months of invading the defendant’s privacy without probable cause and
     without a warrant, FBI Agent James Donovan filed an alleged “complaint”. For this
20
     “complaint” to have merit and provide standing, Agent James Donovan must allege personal
21   loss or injury suffered from the actions listed in the complaint. Without such allegations, this
22   “complaint” is nothing more than an “information” attained through an observing party - a
     potential witness of an actual crime, and in this case, the questionable word of a co-
23
     conspirator.
24           Agent James Donovan did not allege personal injury or loss. Agent James Donovan
25   failed to provide standing to file a complaint against my consensual actions with a third party.
             Agent James Donovan has no right to raise the rights of another to attain standing.
26

27

28




     -28-                          Surrebuttal #9007SR - Dem urrer Motion Surrebuttal by Michael Pohlable
 1                         “The plaintiff must show that he himself is injured by
                    the challenged action of the defendant.” Vil. of Arlington Hts.
 2
                    v. Metro Housing Dev., 429 U.S. 252, 262.
 3

 4                          “To gain standing to bring an action, a plaintiff must
                    allege a distinct and palpable injury. Warth v. Seldin, 422 U.S.
 5
                    490, 501.” Sears v. Hull, 961 P.2d 1013, 1017 (1998).
 6

 7                          "When a party without standing purports to commence
                    an action, the trial court acquires no subject matter jurisdiction.
 8
                    Barshop v. Medina County Underground Water Conservation
 9                  District, 925 S.W.2d 618, 626…(‘standing is a necessary
10                  component of subject matter jurisdiction’). See also Rames v.
                    Bryd , 521 US 811…(‘“standing is perhaps the most important
11
                    of [the jurisdictional] doctrines’”); National Organization for
12                  Women, Inc., v. Scheidler , 510 US 249…(‘standing represents
13                  a jurisdictional requirement which remains open to review at all
                    stages of the litigation’)…(‘standing is a jurisdictional
14
                    prerequisite to every case and may be raised at any stage of the
15                  proceedings’)…” Ex parte James, 836 So2d 813, 871, 872-873.
16

17
             The only person with standing to make a complaint would be the informant, however
18   the prosecution’s case is more confounded by their use of the informant.
19           The informant’s false representation as a private entity is an intentional act of criminal
     fraud. The government’s informant committed commissioned acts of fraud when falsely
20
     representing his interests and intentions and engaging in otherwise consensual contracts.
21           These contracts should be governed under the Uniform Commercial code, and I have
22   yet to find any provisions of the UCC by which my actions were in violation of any governing
     statute.
23
             However, as the informant accepted the goods after inspecting them then resold
24   them/re-distributed them, and after having another party verify that the products were as
25   claimed, neither myself nor my co-defendants can be held liable for any complaints raised at
     this point.
26

27         The matter of establishing standing of the informant is immaterial as his consent alone
28   would over rule any allegations of loss or injury - as only an individual may choose to waive



     -29-                          Surrebuttal #9007SR - Dem urrer Motion Surrebuttal by Michael Pohlable
 1   his rights, and to what extent he chooses to waive them. A consensual waiver of one’s rights
     cannot be used to later criminalize another’s acts committed with one’s consent.
 2
             If this were not the case, piercings, tattoos, and other voluntary harm suffered at the
 3   consent and will of the party being injured would be criminal as well.
 4
            The prosecution alleged in court on January 11th that they had statutory standing, and
 5
     did not have to prove that a “crime” - corpus delicti - had been committed.
 6

 7           The allegations are that a “crime” must only be proven to have taken place in civil suits,
     not in criminal cases, and I find this rather disturbing, as only crimes should be punished
 8
     through criminal court proceedings, and only in execution of common law crimes are the
 9   courts constitutionally permitted to deprive one of his life or liberty without his consent.
10           Again, the corpus delicti includes a specific loss or harm suffered by a party with
     standing, and someone’s unlawful acts resulting in such injury or loss.
11

12           The prosecution also seems to fail to understand the derivation of rights as he
13   consistently claims that I have no “fundamental constitutional right” to possess “prohibited”
     property.
14
             I agree fully with the prosecution that I have no fundamental constitutional right to
15   possess MDMA.
16           However I find his position to be wholly in error.
             I have no fundamental constitutional rights to do anything.
17
             I have no constitutional rights at all, nor do I make such a claim. Only the prosecution
18   claims that I have rights established by state constitutions, and he is, again, in error. Rights are
19   not created by government, they are pre-existent to it.
             What I do have, and lay claim to, are unalienable rights protected by the amendments
20
     of the constitution.
21           As is made clear in the 9th amendment, rights are not enumerated, nor granted by the
22   constitution. The prosecution’s allegation that a label derived from congress may be placed
     onto one’s private property and thus deprive him of his constitutional right to possess it
23
     consumes me with utter dread.
24           If the prosecution firmly believes that my rights are derived from the constitution; i.e.
25   mere privileges granted to me after the creation of an all powerful state, then the prosecution
     and myself are not operating under the same Constitution, do not have the same definition of
26
     “freedom,” and I worry that his definition of “liberty” is the ability to do that which I am told
27   to do.
28           My mother makes similar arguments stating that she is, “Free enough” and does not see
     the need to question authority - even when she feels strongly that it is being abused and needs


     -30-                          Surrebuttal #9007SR - Dem urrer Motion Surrebuttal by Michael Pohlable
 1   reformed. This, I believe, is Stockholm Syndrome, where the victim begins to side with the
     criminal agents that have wronged them through a constant barrage of criminal idealism
 2
     numbing the good sense and character of the victim.
 3           I apologize, but I cannot adopt the reverse mind set that it is better to be “Free Enough”
 4   while being victimized through the unconstitutional usurpation of my unalienable rights
     through licensing laws and the use of regulatory powers that are supposed to be limited by the
 5
     amendments of the constitution.
 6           The call for all Americans throughout history has been, “Liberty or Death!” In this case
 7   it is “Liberty or free housing, free food, free education, and free clothing!” There is no
     incentive for me to back down, other than that I do not believe I am entitled to these benefits to
 8
     the cost of my countrymen, tax payers, who would be billed in excess of $85,000 per year for
 9   such entitlements.
10           I cannot accept the allegations and allow these criminal attempts to overthrow the
     constitutional constraints upon government to go unchallenged. To do so would be entirely
11
     un-American, and in violation of my Oath of Enlistment in the U.S. Air Force - to protect the
12   constitution from all threats, foreign and domestic.
13           The prosecutor is not alone in his belief that the constitution grants rights, however a
     quick glance at the declaration of Independence and the constitution itself will quickly resolve
14
     this issue in my favor.
15

16
             If one has property rights, they have the right to contract with their property. To claim
17
     that congress may prohibit contracts with one’s property is to claim that congress can prohibit
18   one’s right to possess or own property. If the prosecution’s opinion is correct, the
19   constitutional protections of the rights of the people are completely meaningless, the 9th
     amendment is utterly null and void, and the “few,” “limited,” enumerated powers of Congress
20
     have become so numerous and undefined that no one knows their limitations.
21

22

23
                                           Conclusion
24

25           I have no doubts that the prosecution believes they are upholding the best interests of
     society, but one cannot protect society by punishing it, or discriminating specifically whom to
26
     punish and whom to endorse in their allegedly criminal conspiracies. If an act is criminal, the
27   state may not sponsor it nor license its practice.
28           They have done both in their attempts to suppress my rights, leading me to believe that
     the actions themselves are not criminal in nature; it is only in a pursuit to control the minds


     -31-                          Surrebuttal #9007SR - Dem urrer Motion Surrebuttal by Michael Pohlable
 1   and actions of the people that the government makes such frivolous claims against the
     citizenry.
 2
             Their allegations and continued actions are nothing more than criminal attempt to
 3   control myself, and my countrymen in violation of the constitutional provisions protecting our
 4   unalienable rights. The prosecution’s arguments would thrive and flourish in a country of
     subjects; we do not live in such a country. I am not a subject of Congress, nor must I obey
 5
     their whims should their acts violate my protected rights.
 6

 7
                           'The principles laid down in this opinion affect the very
 8
                   essence of constitutional liberty and security. They reach
 9                 farther than the concrete form of the case there before the
10                 court, with its adventitious circumstances; they apply to all
                   invasions on the part of the government and its employee of
11
                   the sanctities of a man's home and the privacies of life. It is
12                 not the breaking of his doors, and the rummaging of his
13                 drawers, that constitutes the essence of the offense; but it is
                   the invasion of his indefeasible right of personal security,
14
                   personal liberty and private property, where that right has
15                 never been forfeited by his conviction of some public
16                 offense-it is the invasion of this sacred right which underlies
                   and constitutes the essence of Lord Camden's judgment.
17
                   Breaking into a house and opening boxes and drawers are
18                 circumstances of aggravation; but any forcible and compulsory
19                 extortion of a man's own testimony or of his private papers to
                   be used as evidence of a crime or to forfeit his goods, is within
20
                   the condemnation of that judgment. In this regard the Fourth
21                 and Fifth Amendments run almost into each other.'           U.S.
22                 Supreme Court Boyd v. United States, 116 U.S. 616 , 627-630,
                   6 S. Ct. 524
23

24                        The Boyd case has been recently reaffirmed in
25                 Silverthorne Lumber Co. v. United States, 251 U.S. 385, in Gouled
26                 v. United States, 255 U.S. 298, and in Byars v. United States, 273
27                 U.S. 28.
28




     -32-                         Surrebuttal #9007SR - Dem urrer Motion Surrebuttal by Michael Pohlable
 1

 2           As the prosecution claims only the following; that the powers of government are

 3
     unrestrained by the amendments; that I have no rights which Congress may not violate at their
     will, I come to the following conclusions:
 4
             1. No due process of law exists as a former conviction of a public exists on my record
 5
     by which I may have forfeited my rights of property and contract, and;
 6
             2. No due process of law exists as a constitutional amendment usurping my rights of
 7
     property and contract, and;
 8
             3. No claim is made by a party with personal standing, and;
 9           4. Congress has no enumerated power to create rights through statute by which the
10   government may claim standing on behalf of society, or some furtherance of governmental
11   power protected by the creation of such rights, and;
12           5. The rulings of the courts used by the prosecution in defense of his position seek to

13   undermine the judicial requirement of standing they are unconstitutional and of negligible

14
     weight.

15
             As the charges against me are for the claim and exercise of my constitutionally
16
     protected rights which I have not lost through due process nor my knowing consent, I request
17
     the court dismiss this alleged claim against me with prejudice.
18
             ______________________
19
             Michael Eugene Pohlable             March 17th, 2008
20

21           Proof of Service

22                    I served the prosecutors whose nam es are Donald Gaffney and Robert Keenan by em ail as
     they requested.. I also served m y stand-by counsel by em ail. I send the em ail around 10:30 am on 17
23
     March to "John D. Early" <earlylaw@ cox.net>, "Gaffney, Donald (USACAC)" <Donald.Gaffney@ usdoj.gov>,
24   "Keenan, Rob (USACAC)" <Rob.Keenan@usdoj.gov> . Thereafter today, 17 Mar, I sent this m otion by

25   em ail to the clerk Kristee Hopkins at Kristee_Hopkins@ cacd.uscourts.gov per the request of the court and
     prosecution that all filing be done electronically..
26
             Signed ______________________ Michael Pohlable. Mon. 17 Feb. 2008.
27

28




      -33-                               Surrebuttal #9007SR - Dem urrer Motion Surrebuttal by Michael Pohlable

								
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