Sherry Jackson's Appeal

[LPC]

There is a difference between the jurisdictional grants of Article I and Article III.

That is actually somewhat correct, for vulgar meanings of "jurisdictional."

Article III, section 2, states that the judicial power of the United States extends to all cases arising under "the Laws of the United States." So Article III jurisdiction can extend to all cases arising under any statute constitutionally enacted by Congress.

But Article III goes beyond that, and includes other kinds of cases, such as cases "between Citizens of different States," which creates the Erie Lackawanna Railroad v. Tompkins kind of situation in which federal courts are hearing cases in which there is no federal law at issue.

So all Article I powers could become Article III powers, but not all Article III powers are Article I powers.

Where Congress had exclusive legislative jurisdiction under Article I, Sec. 8, in those things granted by the States, the States retained jurisdiction in regard to the Trial of all Crimes, in Article III, Sec. 2, Cl. 3, where those crimes had been committed within the State.

Something you keep saying, but refuse to support by any coherent explanation.

For example, why would the people of the United States grant to Congress the power to provide for the "punishment of counterfeiting" in Article I, section 8, while simultaneously both granting the federal courts judicial power to hear the case under "the Laws of the United States" and denying to federal courts the ability to try the counterfeiter?

I can imagine why the Constitution might provide that a person accused of a crime committed in Georgia should be tried in Georgia, because moving lawyers and witnesses from one state to another would be burdensome in 1790, but I cannot conceive of any reason why the Constitution should provide that a person accused of a federal crime must be tried in a state court.

And I cannot imagine why the authors of the Constitution would write that a trial must be held "in the State" if what they meant was that the trial should be held in a state court.

[notorial dissent]

But then, you can read and comprehend plain and simple English, something that seems to elude certain “legal scholars” among those who haven't mastered the complexity of “includes” what else can you expect?

[DarkestBeforeDawn]

All I can say is that I haven't seen anything to date which would refute Jackson in this instance SO FAR either on this forum or by DOJ. It does seem people are trying to turn the point being made into something it is not, just an observation on my part.

To be honest -- DOJ isn't even addressing the matter at least to this point. I mean DOJ doesn't want to even say the crime happened in the State of Georgia or outside of the State of Georgia. If I read Article 3 as written, I would at this point say States kept all criminal prosecution exclusive to the States. However, I keep an open mind to some other points of view on the matter.

"Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."

The only power given in this instance that I can see is for Congress to make such laws to the Place of Trial if committed outside of "any State". I see no power given if committed within "the State". If Congress had the same power within and outside of the State there really would be no need for half the sentence. I am open to opinions on the the matter but to me I haven't seen anything that would clear this up.

Like I mentioned -- this is the first time I have seen this and it is quite interesting to me. I have seen my share PNJ material I am not 100% convinced this is one of them. The SC in BOWEN V. JOHNSTON don't seem to be confused on the matter. It could be I am reading some part of BOWEN v. JOHNSTON wrong but to me it says there is no jurisdiction unless the State released the jurisdiction themselves. "jurisdiction over the crimes there committed, depended upon the terms of the consent or cession given by the legislature of Georgia"

I really don't see how this could be any simplier -- I keep an open mind, right now this is very interesting to me.

Thank you Demo for the warm welcome.

[LPC]

To be honest -- DOJ isn't even addressing the matter at least to this point. I mean DOJ doesn't want to even say the crime happened in the State of Georgia or outside of the State of Georgia.

The DOJ directly addresses the issue at page 23 of the government's brief, which was filed on June 10.

[The Operative]

All I can say is that I haven't seen anything to date which would refute Jackson in this instance SO FAR either on this forum or by DOJ. It does seem people are trying to turn the point being made into something it is not, just an observation on my part.

You haven't? In my opinion, LPC has explained it very well.

To be honest -- DOJ isn't even addressing the matter at least to this point. I mean DOJ doesn't want to even say the crime happened in the State of Georgia or outside of the State of Georgia. If I read Article 3 as written, I would at this point say States kept all criminal prosecution exclusive to the States. However, I keep an open mind to some other points of view on the matter.

Does the DOJ have to respond to every frivolous argument presented by a tax protester? Anyway, LPC has pointed out that they did reply. I haven't read it yet though.

"Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."

The only power given in this instance that I can see is for Congress to make such laws to the Place of Trial if committed outside of "any State". I see no power given if committed within "the State". If Congress had the same power within and outside of the State there really would be no need for half the sentence. I am open to opinions on the the matter but to me I haven't seen anything that would clear this up.

Article III Sec. 2 Clause 3 states that trials of crimes are to be by jury. It also states that trials of crimes are to be in the state where the crime was committed or when it is not committed in a state, that Congress will set a place for the trial. The JURISDICTION is NOT SPECIFIED IN THAT CLAUSE. Jurisdiction is specified in Article III, Sec. 2 Clause 1 which states,

The judicial Power shall extend to ALL CASES, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

This is the clause that grants the power for federal cases to the federal judiciary. Notice the bold parts. The crime committed was a "law of the United States". The judicial power extends to ALL CASES. It is not necessary to make an additional proclamation for crimes committed in a state. It is therefore proper that it was held in a federal court.

Like I mentioned -- this is the first time I have seen this and it is quite interesting to me. I have seen my share PNJ material I am not 100% convinced this is one of them. The SC in BOWEN V. JOHNSTON don't seem to be confused on the matter. It could be I am reading some part of BOWEN v. JOHNSTON wrong but to me it says there is no jurisdiction unless the State released the jurisdiction themselves. "jurisdiction over the crimes there committed, depended upon the terms of the consent or cession given by the legislature of Georgia"

I really don't see how this could be any simplier -- I keep an open mind, right now this is very interesting to me.

Thank you Demo for the warm welcome.

As I already explained, BOWEN V. JOHNSTON was a case involving a murder on federal land within a state. In that situation, there are both STATE and FEDERAL laws concerning the crime. Basically, the Supreme Court ruled that unless the state ceded jurisdiction to the federal government in lands granted by the state to the federal government that the commission of a crime that was a violation of both state law and a federal law, that the state would have primary jurisdiction. The difference between that case and this one is there is no STATE law making the 'Willful failure to file a federal income tax return' a crime. There is only the federal law. Since the crime committed is strictly a violation of a federal law, the federal courts have jurisdiction. Consent and/or concession by the state legislature is not required.

'Willful failure to file a tax return' is a federal crime or a violation of a "law of the United States". Article III, Sec. 2, Clause 1 grants jurisdiction.

Tax returns are typically filed in the state where the person has a primary residence. Ms. Jackson's residence is in Georgia, so the crime was committed in Georgia. The trial was held in Georgia, so the requirement of Article III, Sec. 2, Clause 3 of where the trial was to be held was met.

The trial was by jury. Therefore, the additional requirement of a jury trial in Article III, Sec. 2, Clause 3 was also met.

[DarkestBeforeDawn]

I must be reading something else. On page 23, all DOJ does is rehash what Jackson argument is but they never address it, they keep going back to 3231 which according to Jackson is irrelevant. Jackson does not appear to be contesting that Congress can't determine places of Trial if committed outside of a State. I see nothing at all that would explain the Bowen decision. I would suggest you reread the Jackson appeal and go read the Bowen case and maybe what she is trying to say will become more clear. I see nothing on page 23 that really has anything to do with Jackson's appeal other than to try and change the issue, it clearly is not a response to Jackson's argument.

I would suggest you read the Bowen case. I don't have a horse in this race, I do find this to be a interesting approach which I have never seen before. I will say nothing on page 23 has made this case any less interesting. To me the argument seems pretty simple.

[DarkestBeforeDawn]

The Operative

I honestly don't see anything in Bowen that even comes close to what you are saying. USDC can't magically assume jurisdiction without the power given to it in the Constitution. In Bowen the SC says over and over that the States must give up the jurisdiction to the US. It (Bowen) nor the Constitution says anything about what you are suggesting but I keep an open mind.

What Jackson is saying appears to be in sync with the Constitution and Bowen. I haven't really seen anything from DOJ at this point. To be honest what you are saying isn't making any sense to me but I will reread it. I have no final judgment on the issue, I would like to see something from DOJ their current responses in a few cases don't even address the issue. I really fail to see what your point is, it seems like a mix match of ideas at best. No disrespect intended. As of right now I would extremely disagree with what you are saying. I keep an open mind and I have made no final judgment, after reading Bowen it doesn't appear to be frivolous to me at all, right or wrong.

[LPC]

I must be reading something else.

I still don't know what you're reading, but here's what I'm reading:

The defendant contends for the first time on appeal that Congress has no power "in Article III or anywhere else in the Constitution of the United States" to provide for a trial of offenses against the laws of the United States, unless the alleged offense was committed "outside of any State." The defendant argues that a person charged "in any State" with any crime "shall be delivered" to the "State having jurisdiction of the crime." Defendant's Brief at 51, 56. These contentions are frivolous.

The district courts of the United States have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States. 18 U.S.C. § 3231. Violations of Title 26, Section 7203, are offenses against the laws of the United States. 26 U.S.C. § 7203. The trial of offenses against the United States are required to be held in a district where the offense was committed. Fed. R. Crim. P. 18. Here, the defendant was properly tried for violations of 26 U.S.C. § 7203 that were committed in the Northern District of Georgia. (Doc. 42 and 45).

That clearly, succinctly, and effectively addresses her argument.

On page 23, all DOJ does is rehash what Jackson argument is but they never address it, they keep going back to 3231 which according to Jackson is irrelevant.

Unfortunately for Jackson, her saying that something is irrelevant doesn't make it so. It is the judges of the 11th Circuit who get to decide what is or is not relevant.

And, equally unfortunately for Jackson, the judges can all read the Constitution, section 3231, and the decisions of the Supreme Court for themselves and so they will be able to see that what Jackson says is wrong and what the government says is right.

I have explained why Jackson is wrong several times in this thread, and all I get from you and AIS is a repetition of the same conclusion without any explanation or rationalization. So I'm simply going to say again that you are wrong to believe that Jackson's arguments are anything but frivolous nonsense If you don't understand why, simply reread this thread. If you still don't understand after re-reading this thread, then you are hopeless.

[DarkestBeforeDawn]

I am not going to argue with you, I see nothing in the thread that even addresses Jackson's appeal nor Bowen. Just because you say you have addressed it doesn't make it so. Instead of insults maybe you could show us what you are saying. I can understand Jackson's appeal quite easily and I don't even have a horse in this race. If what you say were true DOJ could just as easily respond which to me is quite obvious they haven't but I don't call you "hopeless" because you don't agree.

I am open minded to this issue if you have something to add. There is no response from DOJ from the two cases I have been following, in my opinion. No disrespect intended but I just don't see it.

[Demosthenes]

Willful blindness is a strange bird.

[LPC]

USDC can't magically assume jurisdiction without the power given to it in the Constitution.

What part of "The judicial Power shall extend to all Cases ... arising under ... the Laws of the United States..." don't you understand?

In Bowen the SC says over and over that the States must give up the jurisdiction to the US.

No, the Supreme Court did NOT say that. You've fallen for the tax denier fallacy of believing that a statement implies the converse, which is false. The statement that "all poodles are dogs" does not in any way imply that all dogs are poodles.

Bowen was accused and convicted of violating a statute that refers to crimes committed "within or on any lands reserved or acquired for the exclusive use of the United States." The Supreme Court found that the park in which the crime was committed had in fact been acquired for the "exclusive use of the United States" and so AFFIRMED the denial of habeas corpus, effectively agreeing that the conviction was valid.

You want to believe that, because the Bowen case required "exclusive jurisdiction" then ALL cases require "exclusive jurisdiction," but the Supreme Court never said that.

The clearest distinction between the Bowen case and the Jackson case is that Bowen was convicted under a statute that SPECIFICALLY required that the crime be committed in a place over which the US has "exclusive jurisdiction. The statute under which Jackson was convicted did NOT require that she be in the "exclusive jurisdiction" of the United States.

It is implicit from the opinion, if not explicit, that the statutory "exclusive jurisdiction" requirement was necessary because the only way that murder could be a federal crime is if the murder were committed in an area within the exclusive legislative power of Congress granted by Article I, section 8, clause 17. But Jackson was convicted of a federal tax crime, and Congress has the power to impose taxes, and punish violations of the tax laws, under Article I, clause 8, clause 1, not clause 17.

So you've taken the Bowen case completely out of context, and are reading something into the decision that the court never said.

[LPC]

I am not going to argue with you,

And yet you continue to argue.

[The Operative]

The Operative

I honestly don't see anything in Bowen that even comes close to what you are saying. USDC can't magically assume jurisdiction without the power given to it in the Constitution. In Bowen the SC says over and over that the States must give up the jurisdiction to the US. It (Bowen) nor the Constitution says anything about what you are suggesting but I keep an open mind.

Right, the Bowen case determined whether the district court had jurisdiction of the person AND SUBJECT MATTER jurisdiction. ON THAT ISSUE, the court made its ruling. THE DIFFERENCE is in the Bowen case, the crime was a violation of a STATE law and a FEDERAL law. Both sovereignties had laws against murder. If the state had not ceded criminal jurisdiction over crimes committed on the federal lands, the state courts would have had the proper jurisdiction and not the district court. However, the court found that the state had ceded jurisdiction over those lands, which is why the judgment was affirmed.

In Ms. Jackson's case, the crime is strictly a federal law. To the best of my knowledge, the state courts do not have jurisdiction over federal crimes. Also, to the best of my knowledge, the State of Georgia does not have a law making the willful failure to file a federal income tax return a crime, so Ms. Jackson's acts were not crimes under state law, but her acts were crimes under "the Laws of the United States". Article III, Sec. 2, Clause 1 clearly is the basis for jurisdiction to the federal courts. 18 U.S.C. 3231 clarifies that.

The judicial Power shall extend to all Cases, in Law and Equity, ...the Laws of the United States, ...—to Controversies to which the United States shall be a Party;...

What part of that is not clear to you?

[ASITStands]

I see no reason to call anyone "hopeless" or "willfully blind."

First of all, there is a Georgia Statute making failure to file a tax return a misdemeanor.

TITLE 48.  REVENUE AND TAXATION  
CHAPTER 7.  INCOME TAXES  
ARTICLE 1.  GENERAL PROVISIONS
O.C.G.A. § 48-7-2  (2007)
§ 48-7-2.  Failure of person to pay tax, file return, keep records, supply information, or exhibit books under this chapter; penalty

   (a) It shall be unlawful for any person who is required under this chapter to pay any tax, make any return, keep any records, supply any information, or exhibit any books or records for the purpose of computation, assessment, or collection of any tax imposed by this chapter to fail to:

   (1) Pay the tax;

   (2) Make the return;

   (3) Keep the records; or

   (4) When requested to do so by the commissioner:

      (A) Supply the information; or

      (B) Exhibit the books or records.

(b) In addition to other penalties provided by law, any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor.

HISTORY: Code 1933, § 92-3217, enacted by Ga. L. 1937, p. 109, § 17; Code 1933, § 91A-9930, enacted by Ga. L. 1978, p. 309, § 2.

O.C.G.A. § 48-7-2

At the very least, that would invoke concurrent jurisdiction.

Secondly, Article III, Sec. 2, Cl. 1 confers subject-matter jurisdiction, as rightly claimed, but Cl. 3 confers venue, and I believe the challenge in Sherry Jackson's appeal is venue.

Thirdly, as I attempted to show earlier, nothing in the Judiciary Act of 1789 nor the predecessor of 18 U.S.C. § 3231 contradicted Article III, Sec. 2, Cl. 3. If somehow 18 U.S.C. § 3231 conferred jurisdiction contrary to Article III, Sec. 2, Cl. 3, it's unconstitutional.

I prefer to believe, as the Supreme Court stated in Pennsylvania v. Nelson, 350 U. S. 497 (1956), in discussing the two sentences of 18 U.S.C. § 3231, "The office of the second sentence is merely to limit the effect of the jurisdictional grant of the first sentence. There was no intention to resolve particular supersession questions by the Section."

Bowen was decided before 18 U.S.C. § 3231 and Pennsylvania after. In the first, the question of jurisdiction was determined by a consideration of whether the United States had exclusive jurisdiction over the land, or place, pursuant to Article I, Sec. 8, Cl. 17.

Exclusive jurisdiction turned on the question of territorial jurisdiction.

In the second, the question was determined by a consideration of where the act took place, but while the trial remained in federal district court, the decision points us to the question of a limitation on the jurisdiction of the State by supersession.

Pennsylvania did not overturn Bowen. It did not reach the same question.

In Article III, Sec. 2, Cl. 3, two venues are described - "in the State" and "such Place or Places as the Congress may by Law have directed." The Northern District of Georgia is such a Place, and the question is, "How is the Northern District of Georgia the State of Georgia?"

How can 18 U.S.C. § 3231 accomplish what Article III, Sec. 2, Cl. 3 forbids?

The only way would be if the crime was not committed within any State but committed in a Place where the United States had exclusive jurisdiction. Such was not so in Jackson.

The Supreme Court has consistently decided jurisdiction questions by a consideration of who, or what, has control over the land, or place, where the act was committed.

That appears to be the question in the Sherry Jackson appeal.

What crimes committed in a State would place the Trial of all Crimes in a State? And, we're not talking about crimes pursuant to State law but crimes pursuant to Article III, Sec. 2, Cl. 3.

Neither U.S. Attorney Langway, nor judges across the country, have been able to answer the question, "What words in Article III of the Constitution place the controversy between the United States, or United States of America, and the defendant in this district court?"

[Demosthenes]

First of all, there is a Georgia Statute making failure to file a tax return a misdemeanor.

Which has nothing to do with the fact that Jackson was convicted of not filing a federal tax return.

[LPC]

Basically, the Supreme Court ruled [in Bowen] that unless the state ceded jurisdiction to the federal government in lands granted by the state to the federal government that the commission of a crime that was a violation of both state law and a federal law, that the state would have primary jurisdiction.

Having now read the case, I disagree with your summary, and I want to offer a clarification for the benefit of AIS and DBD.

The statute Bowen was convicted of violating required that the land on which the crime was committed be under the *exclusive* control of the United States, and the Supreme Court held that the park in question qualified, so the conviction was valid.

So the crime in question was NOT a crime under state law because the state had ceded jurisdiction to the United States. As I noted above, the cession by the state seems to be necessary for the statute to be constitutional under Article I, section 8, clause 17.

And so the Supreme Court never addressed the issue of who would have "primary jurisdiction" over a crime that is a violation of both state law and federal law (such as a theft from a federally insured bank). I believe that, where jurisdiction is concurrent, both sovereigns can try and convict the defendant, but that federal power can trump state power (if the USA insists) because of the Supremacy Clause.

[DarkestBeforeDawn]

Man, you guys are making some big leaps here.

In the Bowen case, which was denied, so what. All the courts said that USDC only had jurisdiction if Georgia consented. Which Georgia had done. If Georgia had not consented than the guy would have been let go, possibly prosecuted by Georgia but they could have not even pressed charges.

"If the matter rested with these statutes, there would be no room for doubt that jurisdiction to punish for crimes committed on the lands within the Park remained with the State. See James v. Dravo Contracting Co., supra. But, in 1927, another cession act of a general character was passed by the state legislature, purporting to cede exclusive jurisdiction to the United States over any land

"which has been or may hereafter be acquired for custom-houses, post-offices arsenals, other public buildings whatever, or for any other purposes of government."

The SC does not mention anything about certain crimes being within it's jurisdiction and others ones not in this context at least in Bowen. Where you guys are getting this from I would like to know -- maybe show me instead of telling me.

The SC said in Bowen that the States must consent to giving up jurisdiction when it comes to criminal prosecution within the States boundaries. Location of the crime is the matter, not the type of crime. I don't know how someone can read Bowen and get these crazy theories. I remain open-minded but these crazy theories are actually strengthening what I think of the case already.

I generally agree with ASITstands based on what I have seen so far, to me though, 3231 is irrelevant as is and also whether or not Georgia has a law which makes it a crime not to file. I fail to see how that is relevant in this context. If someone has some cases on the matter than I am still open minded on the issues but as right now it just seems like a bunch of crazy theories.

[The Operative]

Basically, the Supreme Court ruled [in Bowen] that unless the state ceded jurisdiction to the federal government in lands granted by the state to the federal government that the commission of a crime that was a violation of both state law and a federal law, that the state would have primary jurisdiction.

Having now read the case, I disagree with your summary, and I want to offer a clarification for the benefit of AIS and DBD.

The statute Bowen was convicted of violating required that the land on which the crime was committed be under the *exclusive* control of the United States, and the Supreme Court held that the park in question qualified, so the conviction was valid.

I can agree with that. I may have simplified things a bit that may have clouded what the court actually ruled. Since I am not a lawyer, I will defer to the lawyer's opinion.

[ASITStands]

First of all, there is a Georgia Statute making failure to file a tax return a misdemeanor.

Which has nothing to do with the fact that Jackson was convicted of not filing a federal tax return.

Agreed that Sherry Jackson was convicted of not filing a federal tax return.

However, I made the observation because several had suggested Bowen turned on the fact there was both a State and federal law against the crime of murder which was violated, and one suggested there was no State law against failure to file a tax return.

Can a violation of federal law occur within the boundaries of a State? And, what does the word "Crime" mean in Article III, Sec. 2, Cl. 3? It seems to me those are relevant questions.

James Madison wrote, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The Federalist No. 45, pp. 292–293.

The States delegated legislative power to the United States under Article I and enumerated those things over which the United States had legislative jurisdiction. It includes taxation.

I am not suggesting Sherry Jackson did not violate federal law. Neither am I suggesting she did not have a requirement under federal law to file a return and pay a tax.

However, it appears from Article III, Sec. 2, the United States could only acquire subject-matter jurisdiction to try such a case if the "Crime" was NOT committed within the State.

You have to travel through the State of Georgia to arrive at that Place directed by Congress the Trial of all Crimes should be held when the "Crime" was not committed within any State.

That Place has exclusive Article I, Sec. 8, Cl. 17 jurisdiction, and that's Bowen.

Like others, I'll not argue further. I'm only posing questions of interest. Maybe I'm "hopeless" or "willfully blind," but I see something in Article III, Sec. 2, Cl. 3 that's not being addressed.

Edited: To insert the word NOT where it was intended.

[wserra]

USDC only had jurisdiction if Georgia consented. Which Georgia had done. If Georgia had not consented than the guy would have been let go, possibly prosecuted by Georgia but they could have not even pressed charges.

Correct. Dan already explained the reason for this conclusion, but let me try in other words. The federal government has no general police power in the states. The Constitution grants it no general power to criminalize rape, murder, arson, rape or spitting on the sidewalk anywhere that a State has jurisdiction. (Although certain cases under the Commerce Clause seem to come close to granting such power, but that's another subject.) It does have the police power anywhere it has exclusive jurisdiction. Hence the requirement of the federal murder statute at issue in Bowen that it only applied in federal areas. Otherwise it would have been unconstitutional as an exercise of federal power in excess of constitutional grant.

Federal tax crimes, in contrast, are not exercises of the police power. They are violations of a federal statute requiring the payment of federal taxes. It is state courts that have no jurisdiction over federal tax crimes because they are not violations of state law. Bowen is simply inapplicable because its premise - that there is no general federal police power - is irrelevant in a prosecution for non-payment or evasion of federal taxes.