Opinion
Case No. 02-40072-01-RDR
September 18, 2003
ORDER
This order is issued to record the court's rulings upon various issues defendant raised orally or in writing at a hearing conducted September 17, 2003, the day before trial was scheduled to begin in this matter.
"MOTION FOR DISMISSAL FOR LACK OF JURISDICTION, IN THE ALTERNATIVE WRIT OF HABEAS CORPUS RE NUNC PRO TUNC"
Defendant filed a 26-page motion with this title during the hearing. The court has attempted to read and understand the document, although it is difficult. Most of the document challenges the jurisdiction of this court to hear and decide the criminal charges in the indictment against defendant.
It is very clear that the statute granting this court jurisdiction is 18 U.S.C. § 3231 which states: "The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States." This is a district court of the United States. See 28 U.S.C. § 96 (establishing the District of Kansas). Congress established the Supreme Court, the Circuit Court, and the District Court by the Judiciary Act of 1789. Surrency, "Federal District Court Judges and the History of Their Courts" 40 F.R.D. 139, 140 (1967). The district court of the federal judiciary has exercised criminal jurisdiction since at least 1815. Id. at 141. Kansas was admitted as a state in 1861 and was constituted as a single judicial district with a district court judge who exercised full federal jurisdiction. Id. at 205 (citing Act of January 29, 1861, 12 STAT. 128).
Arguments of the kind defendant is attempting to make here have been firmly and repeatedly denied by the Tenth Circuit Court of Appeals. For example, in U.S. v. Brown, 2002 WL 31745057 (10th Cir. 2002), the court stated: "[Defendant's] contention that the district court lacked jurisdiction is frivolous. See 18 U.S.C. § 3231."
In U.S. v. Frech, 1998 WL 317472 (10th Cir. 1998), the Court stated:
Defendants claim that they are not subject to the United States criminal statutes under which they were convicted because the federal government and the District Court for the Western District of Oklahoma have no jurisdiction over them. . . . Defendants also argue that the capitalization of their names in court documents constitutes constructive fraud and, therefore, the federal courts do not have jurisdiction over them. . . .
Defendants' arguments that the federal courts have no jurisdiction over them are similar to those labeled "frivolous" and "silly" by this court. . . . Defendants "blithely ignore 18 U.S.C. § 3231 which explicitly vests federal district courts with jurisdiction over `all offenses against the laws of the United States.'" Defendants' assertion that the capitalization of their names in court documents constitutes constructive fraud, thereby depriving the district court of jurisdiction and venue, is without any basis in law or fact.(Quoting U.S. v. Collins, 920 F.2d 619, 629-30 (10th Cir. 1990).
In U.S. v. Lampley, 127 F.3d 1231, 1245-46 (10th Cir. 1997), the Court stated:
Finally, Defendants Mr. Lampley and Mrs. Lampley challenge, pro se, the original jurisdiction of the federal district court to prosecute crimes committed within the States. Their principal argument is that the States are sovereign and the federal government is not authorized to prosecute crimes committed within their borders. The Supremacy Clause, the Civil War, the decisions of the Supreme Court, and acts of Congress make it clear that so long as there is a constitutionally authorized federal nexus, the federal government is free to act anywhere within the United States. See U.S. Const. art. VI, cl.2; 18 U.S.C. § 3231; Abbate v. United States, 359 U.S. 187, 192-94 . . . (1959); Moore v. Illinois, 55 U.S. (14 How.) 13, 20 . . . (1852); United States v. Hudson, 11 U.S. (7 Cranch) 32, 33-34 . . . (1812).
To the extent that Defendants' pro se briefs, can be read to raise a nexus based jurisdictional issue . . . the indictment and the record clearly establish the allegation of interstate commerce.
(Emphasis added).
In U.S. v. Collins, 920 F.2d 619, 629 (10th Cir. 1990), the Tenth Circuit stated:
Dickstein's motion to dismiss advanced the hackneyed tax protester refrain that federal criminal jurisdiction only extends to the District of Columbia, United States territorial possessions and ceded territories. Dickstein's memorandum blithely ignored 18 U.S.C. § 3231 which explicitly vests federal district courts with jurisdiction over "all offenses against the laws of the United States." Dickstein also conveniently ignored article I, section 8 of the United States Constitution which empowers Congress to create define and punish crimes, irrespective of where they are committed. See United States v. Worrall, 2 U.S. (2 Dall.) 384, 393, 1 L.Ed. 426 (1798)(Chase, J.).
See also, U.S. v. Leroy, 2002 WL 1614203 (10th Cir. 2002)("District Courts are clearly given jurisdiction over the laws of the United States.").
There are some references to the flag in defendant's lengthy motion. To the extent defendant is asserting that the flag in the courtroom provides a basis to challenge jurisdiction, we reject this argument. The Tenth Circuit has termed similar claims to be "indisputably frivolous."U.S. v. Mackovich, 209 F.3d 1227, 1233 (10th Cir. 2000).
Defendant's motion contains many other assertions which are unsubstantiated or lack any supporting law or authority. Defendant asserts that the grand jury acted illegally. No grounds or evidence is provided for this claim. Defendant makes the ridiculous contention that because attorneys are "officers of the court" there is a conflict of interest or illegal collaboration between the court and counsel in this matter. Defendant falsely equates the operation of the grand jury to embracery. He asserts that U.S. Magistrate Judge stated that there was no claim against defendant in this case, when Judge Sebelius actually stated that neither he nor anyone else in the courtroom had a "personal" claim against defendant. Obviously the criminal charges in this case are not "personal" claims. Defendant asserts that there is no evidence of interference with interstate commerce. That is a matter of proof at trial. The grand jury apparently found sufficient evidence to establish probable cause, which is all that is necessary until trial. These and the other arguments made in defendant's motion are clearly invalid.
"ADDICTIONAL (sic) CHALLENGES SUBMITTED"
This document contains more of the same, and to some extent more bizarre arguments, regarding jurisdiction. For example, defendant states that statutes are not laws, that all bar associations are operating on American soil illegally, that the U.S. Government is incorporated as a for-profit commercial enterprise, and that America is currently under military occupation by the conquering foreign creditors of the Federal Reserve Bank and the International Monetary Fund.
To reiterate, the controlling law of the Tenth Circuit firmly establishes the jurisdiction of the court in this matter. Defendant's "additional challenges" shall be denied.
AFFIDAVIT OF GWYNDELL B. DECLERK, BY SPECIAL VISITATION
This document restates defendant's claim to trademark or copyright protection of this name. Defendant asserts that he is not a "juristic" person.
No legal defense is stated in this affidavit. We remind defendant that we have stated previously:
[T]he civil law is clear that a person's name is not subject to copyright protection. Downing v. Abercrombie Fitch, 265 F.3d 994, 1005 (9th Cir. 2001); Brown v. Ames, 201 F.3d 654, 658 (5th Cir.) cert. denied, 531 U.S. 925 (2000). This is because a person's name does not constitute an original work of authorship or a derivative work as defined in 17 U.S.C. § 102 and 103. Nor does defendant have a claim under the tort of misappropriation. Again, this is a civil action, not a criminal defense. In addition, no action has been taken which attempts to obtain value from the use of defendant's name without his consent; that is a requirement for the tort of misappropriation. See Brown, 201 F.3d at 657-58 (construing Texas law on misappropriation).
Doc. No. 179.
The court also went into some detail in this document to explain the jurisdictional predicate for the Hobbs Act and § 924(c) charges in this case.
REQUEST FOR A BILL OF PARTICULARS
Defendant orally renewed his claim for a bill of particulars. We have denied that claim previously in writing. To repeat, where as here there has been full disclosure prior to trial and there appears to be no potential for unfair surprise, a bill of particulars need not be granted.U.S. v. Jenkins, 313 F.3d 549, 558 (10th Cir. 2002). "`A bill of particulars is not necessary if the indictment sets forth the elements of the offense charged and sufficiently apprise[s] the defendant of the charges to enable him to prepare for trial.'" U.S. v. Ivy, 83 F.3d 1266, 1281 (10th Cir. 1996)(quoting, U.S. v. Levine, 983 F.2d 165, 167 (10th Cir. 1992)). There is no grounds for a bill of particulars given the indictment and the full disclosure done in this case.
REQUEST FOR GRAND JURY MINUTES OR TRANSCRIPT
Defendant also orally renewed his request for grand jury minutes or transcripts. As before, we shall deny this request. Defendant must demonstrate a "particularized need" for such minutes or transcripts.U.S. v. Troutman, 814 F.2d 1428, 1453 (10th Cir. 1987). "A defendant is not permitted to probe aimlessly for conjectured error behind a facially valid indictment." Id. That appears to be defendant's tactic here. However, a "general claim that disclosure of Grand Jury transcripts will possible reveal exculpatory evidence is not enough to demonstrate `particularized need.'" U.S. v. Rising, 867 F.2d 1255, 1260 (10th Cir. 1989).
Defendant's request is denied.
REQUEST TO REOPEN SUPPRESSION HEARING
Defendant orally renewed his request to reopen the suppression hearing. The court has reopened the suppression hearing once at defendant's request. The court has been faced with several requests to reopen the record again. The court has rejected these requests in writing. Defendant has failed to support these requests with any evidence, proffer or argument which establishes that there is good cause to reopen the record. Defendant suggested at the hearing on September 17 that evidence from the reports of Lawrence Police Officers Tyson Randall and M. Weidl supports his claim of racial profiling as developed in the motion to suppress. The court has reviewed the reports and shall direct that the reports be made a part of the record in this case. We find nothing in the reports which supports reopening the suppression hearing or altering the court's prior rulings.
MOTION TO RECUSE
During the September 17 hearing, the court denied defendant's motion to recuse. At that time the court make the following comments.
Defendant's motion to recuse lists numerous grounds. We note that under 28 U.S.C. § 455(a), a judge should disqualify himself "in any proceeding in which his impartiality might reasonably be questioned."
The Tenth Circuit has further stated:
The test in this circuit is whether a reasonable person, knowing all the relevant facts, would harbor doubts about the judge's impartiality. . . . The standard is purely objective. The inquiry is limited to outward manifestations and reasonable inferences drawn therefrom. In applying the test, the initial inquiry is whether a reasonable factual basis exists for calling the judge's impartiality into question.
[S]ection 455(a) must not be so broadly construed that it becomes, in effect, presumptive, so that recusal is mandated upon the merest unsubstantiated suggestion of personal bias or prejudice.
[T]his and other courts have identified various matters arising in cases . . . which will not ordinarily satisfy the requirements for disqualification under § 455(a):
(1) Rumor, speculation, beliefs, conclusions, innuendo, suspicion, opinion, and similar non-factual matters; . . . (2) the mere fact that a judge has previously expressed an opinion on a point of law; . . . (3) prior rulings in the proceeding, or another proceeding solely because they were adverse. . . . . Finally, we have emphasized that there is as much obligation for a judge not to recuse when there is no occasion for him to do so as there is for him to do so when there is."U.S. v. Cooley, 1 F.3d 985, 993-94 (10th Cir. 1993) (citations omitted).
Examining the grounds mentioned in defendant's motion, the court does not believe they present a reasonable factual basis for questioning my impartiality.
The first grounds mentioned refers to a statement made during a hearing in late November of last year where the court permitted the Federal Public Defender to withdraw as defendant's counsel. The exact statement is not recounted in the motion. No excuse is mentioned for the delay in bringing this motion so many months after the alleged statement. Finally, the court has reviewed a transcript of the hearing in question. I find no statement in the transcript which would be considered evidence of bias or prejudice. At one point in the hearing, I state that "there's no magic wand that an attorney can wave to cleanse your problems . . ." I see nothing in this statement which can reasonably be construed as indicating bias or prejudice against defendant. The court made statements to the effect that it was a mistake to attempt to represent oneself in a criminal trial and that the Federal Public Defender was highly competent counsel. The court makes this type of statement frequently in many cases in which defendants discharge the Public Defender and talk about representing themselves.
Several other grounds listed in defendant's motion argue that I'm biased because I have not ruled in defendant's favor with regard to various motions, requests for subpoenas, and other matters. These matters include defendant's "demand for rebuttal" in certain affidavits and motions filed with the court. As stated before, prior rulings in a proceeding are not evidence of bias solely because they are adverse. These rulings do not support recusal in this case.
Defendant asserts that the court permitted government witnesses to testify without being sworn. There is no evidence other than the defendant's assertion to support this contention. The record in this case indicates that the witnesses were sworn.
Defendant also asserts that the court has demonstrated bias and prejudice against other defendants. These persons are not listed and there is nothing other than defendant's bald claim to support this contention. It does not provide grounds for recusal.
Finally, defendant seeks the appointment of an investigator to help support defendant's claims of bias and prejudice. There have been no reasonable grounds presented to justify the appointment of an investigator in this case.
For these reasons the motion to recuse shall be denied.
IT IS SO ORDERED.