Sherry Jackson's Appeal

[Dr. Caligari]

Her pro se brief to the 11th Circuit is here:

http://www.scribd.com/doc/3434432/11thJ ... al1-Final2

This is unusually incoherent even for a pro se. Not only are her arguments not meritorious, most of the time I cannot even figure out what it is she thinks she is arguing.

[ASITStands]

The docket shows the Appellee Brief has been filed as well.

The first question appears to be a jurisdictional challenge.

Oops! Just saw the eighth question which appears to expand on the first.

The last ten pages describe the jurisdictional challenge.

[The Observer]

And it's only 72 pages! That's got to be thrilling some law clerk somewhere.......

Apparently TPs never heard of the old adage about being big is not necessarily best...

[Dr. Caligari]

The docket shows the Appellee Brief has been filed as well.

Anybody got a link?

[LPC]

Not only are her arguments not meritorious, most of the time I cannot even figure out what it is she thinks she is arguing.

I scanned some of the arguments, and I think they seem incoherent because of fundamental misunderstandings of criminal law, criminal procedure, and constitutional law.

It's kind of like one of those "Roseanne Roseannadanna" schticks from SNL where it takes you awhile to realize that she's talking about the "eagle rights amendment" and not the "equal rights amendment" or the "endangered feces act."

So, for example:

1. Jackson does not understand that the requirement of a grand jury indictment only applies to felonies, and not misdemeanors.

2. She does not understand that Article III jurisdiction applies to ALL cases under federal law, regardless of the nature of the parties.

3. She has apparently bought into the "standing" argument of Marc Stevens, who believes that governments have no standing to prosecute crimes unless they can show some kind of "injury" from the crime. Even if this were true (which it is not), it would have no relevance to tax crimes, in which the government is obviously harmed by the lack of tax revenue.

Other arguments seem incoherent because they are actually incoherent. For example, the entire argument about the meaning of "penitentiary" (pages 42-50) can only be explained as a side-effect of a past (or current) misuse of hallucinogens.

[ASITStands]

The docket shows the Appellee Brief has been filed as well.

Anybody got a link?

It's available on Pacer.

[The Observer]

It's kind of like one of those "Roseanne Roseannadanna" schticks from SNL where it takes you awhile to realize that she's talking about the "eagle rights amendment" and not the "equal rights amendment" or the "endangered feces act."

Actually, it was the "Emily Litella" schtick, where the character was a little old lady who suffered from hearing impairment, causing her to believe that there were burning issues as the "deaf penalty" and "oppression of Soviet jewelry", that required her commentary.

[Paul]

"Never mind."

[notorial dissent]

You just have have to know that any brief that starts out with “Who is the party ‘United States of America’” has got to be a load of codswallop from beginning to end. I really do pity the clerk who has to slog though that collection of nonsense, although I would suspect that most of it is pretty readily disposed of as being out and out nonsense. I wonder if she will garner her first of many frivolous appeal fines for this one. I would think that any appeals to ignorance would be pretty well overridden by the fact that she had been an IRS agent. I would also suspect that we can look forward to the plaint of “but they didn’t rule on the issues and merits of the appeal”, that are sure to issue forth once this is bounced as it so rightly deserves. I suppose it is too much to hope for that her attorneys will get sanctioned for participating in a waste of the court’s time?

[Dr. Caligari]

I wonder if she will garner her first of many frivolous appeal fines for this one.

I have never seen a sanction for a frivolous appeal of a criminal case.

I suppose it is too much to hope for that her attorneys will get sanctioned for participating in a waste of the court’s time?

No attorneys were involved--her brief was filed pro se.

[Famspear]

[ . . ]No attorneys were involved--her brief was filed pro se.

She could have put a disclaimer at the end: "No attorneys were injured in the writing of this brief" (kinda like "no animals were harmed in the making of this film").

[LPC]

I wonder if she will garner her first of many frivolous appeal fines for this one.

I have never seen a sanction for a frivolous appeal of a criminal case.

I thought of one: Larry Becraft. See In re Lowell H. Becraft (United States v. Nelson), 885 F.2d 547 (9th Cir. 1989). Becraft was appealing a criminal conviction, argued that the federal income tax didn't apply outside of the District of Columbia and federal territories, and got sanctioned $2,500.

[ASITStands]

It appears Sherry Peel Jackson is making a distinction between the terms "United States of America" and "United States." If the "United States," as represented by the "U.S. Attorney," who answers to the Executive Power at Article II, is the proper Party, Jackson appears to argue, "Why is the 'United States of America' listed as the Plaintiff?" Interesting.

I presume she's arguing the "United States" represents the national government created by the Constitution, while the "United States of America" represents the fifty States in total.

She argues 18 U.S.C. § 3231, "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," with an emphasis on "exclusive of the courts of the States."

She places an emphasis on the second sentence, "Nothing in this title shall be held to take away or impair the jurisdiction of the courts of the several States under the laws thereof," by citing, Pennsylvania v. Nelson, 350 U.S. 497, 512 (1956), "the 'office of the second sentence is merely to limit the effect of the jurisdictional grant of the first sentence.'”

It's interesting that the "U.S. Attorney" argues nothing but, "The district courts of the United States shall have original jurisdiction," and switches the words "courts of the States" to "State courts," placing no emphasis on the second sentence or the meaning of "exclusive."

Sherry Jackson appears to argue according to Article III of the Constitution, the "courts of the States" have original jurisdiction when the acts of an alleged crime were committed within a State, and the "district courts of the United States" have original jurisdiction when those acts were not committed within a State, as when committed on a federal enclave.

In other words, in what part of the judicial district of the Northern District of Georgia did Sherry Peel Jackson commit the alleged crime? That appears to be her question.

It could be phrased differently, "What acts of the alleged crime were committed outside the State of Georgia, or, committed on a federal enclave or interstate?" I think that's it.

It's an interesting argument. I don't think I've seen it before, and it's going to be interesting to see how the Eleventh Circuit Panel receives it. The U.S. Attorney certainly didn't answer.

[Dezcad]

It could be phrased differently, "What acts of the alleged crime were committed outside the State of Georgia, or, committed on a federal enclave or interstate?" I think that's it.

It's an interesting argument. I don't think I've seen it before, and it's going to be interesting to see how the Eleventh Circuit Panel receives it. The U.S. Attorney certainly didn't answer.

AFAIR, that argument is similar to one that Becraft made (and was sanctioned for) as well as the basis of Dogwalker's Habeus Corpus (and as continually pushed further by Joe Haas - one of the Brown and Brown 4 supporters).

[LPC]

It appears Sherry Peel Jackson is making a distinction between the terms "United States of America" and "United States."

Which is an issue addressed in my FAQ: http://evans-legal.com/dan/tpfaq.html#US-USA

Sherry Jackson appears to argue according to Article III of the Constitution, the "courts of the States" have original jurisdiction when the acts of an alleged crime were committed within a State, and the "district courts of the United States" have original jurisdiction when those acts were not committed within a State, as when committed on a federal enclave.

The word "appears" is very important, because by the time she got to pages 50-57 she was clearly running out of steam, and she seems to have simply thrown together whatever sentences and paragraphs she had left over.

It looks to me as though she has confused the venue provisions of Article III, which require that federal trials for federal crimes take place in the state in which the crime is alleged to have been committed, and the extradition provisions of Article IV, which requires a state to turn over to another state someone who has been charged with a crime in (and by) the other state.

In other words, in what part of the judicial district of the Northern District of Georgia did Sherry Peel Jackson commit the alleged crime? That appears to be her question.

And a question that she appears to answer herself, on pages 51-52, recognizing that the crime of failing to file a return occurs in the state in which the taxpayer has a legal residence.

[ASITStands]

AFAIR, that argument is similar to one that Becraft made (and was sanctioned for) as well as the basis of Dogwalker's Habeus Corpus (and as continually pushed further by Joe Haas - one of the Brown and Brown 4 supporters).

Becraft challenged jurisdiction, for sure, but he challenged the authority of Congress to write a law that imposed a tax on residents or Citizens of the States. His challenge was an Article I challenge based on a reading of Article I, Sec. 8, Cl. 17, and the ten miles square.

In other words, because of the difference between union States and those places over which Congress exercised exclusive jurisdiction, could Congress write law imposing a tax.

At least that's my reading of it, and such a challenge will always fail, as one of the powers enumerated by the States in the Constitution was the authority of Congress to write laws affecting Citizens of the States, including laws that imposed taxes on incomes.

The States enumerated or "gave" that Power to Congress in Article I of the Constitution.

That means the income tax cannot be challenged on constitutionality, or legality, as though Congress did not have authority to enact a law that imposed a tax on incomes.

But that's a challenge of Article I Jurisdiction, or the Legislative Power, and what appears to be happening in the Sherry Peel Jackson case, is a challenge of Article III Jurisdiction, or the Judicial Power, as to which "court" has original jurisdiction to try the case.

The U.S. Attorney argues, pursuant to 18 U.S.C. § 3231, the "district courts of the United States" have "original jurisdiction," ignoring "exclusive of the courts of the States," while Sherry Jackson appears to suggest the State has jurisdiction over the scene of the crime.

By asking, "What part of the judicial district of the Northern District of Georgia lies within the State of Georgia, or what part of the State of Georgia lies within the judicial district?" Sherry Jackson appears to be challenging the Article III Jurisdiction of the District Court.

That's much different than what Becraft challenged, and Dog-Walker has no idea.

It can be succinctly framed, "What words in Article III of the Constitution brings the controversy between the United States, or United States of America, and Sherry Peel Jackson into the judicial district of the Northern District of Georgia?" It's that simple.

Edit: As Dan has responded to my earlier remarks, I'll leave this post to ponder the words of the Supreme Court in Nevada v. Hicks, 533 U.S. 353 (2001), at pg. 14, III:

It is certainly true that state courts of “general
jurisdiction” can adjudicate cases invoking federal statutes,
such as § 1983, absent congressional specification to the contrary.
“Under [our] system of dual sovereignty, we have
consistently held that state courts have inherent authority,
and are thus presumptively competent, to adjudicate claims
arising under the laws of the United States,” Tafflin v.
Levitt, 493 U. S. 455, 458 (1990). That this would be the
case was assumed by the Framers, see The Federalist No. 82,
pp. 492–493 (C. Rossiter ed. 1961). Indeed, that state courts
could enforce federal law is presumed by Article III of the
Constitution, which leaves to Congress the decision whether
to create lower federal courts at all. This historical and constitutional
assumption of concurrent state-court jurisdiction
over federal-law cases is completely missing with respect to
tribal courts.

As 'Famspear' says, bolding added.

Why would Congress create lower courts except in answer to Article III, Sec. 2, Cl. 3, in the case of crimes "not committed within any State?" This clause in Article III gives the reason why Congress would be called upon to create lower federal courts. Article I, Sec. 8, Cl. 9 gave them the authority to do so, but Article III, Sec. 2, Cl. 3 gave them the reason.

There's plenty of other Supreme Court law on Article III and State courts.

[LPC]

It can be succinctly framed, "What words in Article III of the Constitution brings the controversy between the United States, or United States of America, and Sherry Peel Jackson into the judicial district of the Northern District of Georgia?" It's that simple.

And the answer is that Article III, section 2, allows federal courts jurisdiction over all cases arising under "the Laws of the United States" AND 18 U.S.C. § 3231 states that the federal district courts have "original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States."

Jackson was accused of an offense against a law of the United States, 26 USC 7203, so the federal district courts, and ONLY the federal district courts, have jurisdiction. It's that simple.

Only federal courts have jurisdiction over prosecutions of federal crimes because 18 U.S.C. § 3231 states that federal courts have jurisdiction "exclusive of the courts of the States," which means that state courts do not have jurisdiction.

I emphasized the word "and" in my first sentence above, because both are necessary. To hear a case, the case must be within the powers of federal courts under Article III *and* there must be a federal statute giving the federal court jurisdiction. There is no federal statute giving federal courts jurisdiction over all cases described in Article III, so to be in federal court you have to find a statute that allows you to be there.

I believe I have seen instances in which Congress has created civil remedies and failed to give the federal courts jurisdiction to enforce those remedies, in which case there will be no jurisdiction in the federal courts unless there is some other statutory basis for jurisdiction (such as diversity of citizenship, or the United States is a party) and it may be that *only* the state courts will have jurisdiction to enforce the Congressional statute.

Why would Congress create lower courts except in answer to Article III, Sec. 2, Cl. 3, in the case of crimes "not committed within any State?" This clause in Article III gives the reason why Congress would be called upon to create lower federal courts. Article I, Sec. 8, Cl. 9 gave them the authority to do so, but Article III, Sec. 2, Cl. 3 gave them the reason.

There are lots of good reasons for Congress to create federal courts, but Article III, Section 2, clause 3 is not one of them.

That clause does not address the question of jurisdiction, but the question of *venue*, which is different. The clause does not give federal courts jurisdiction to decide criminal cases, because that authority was given by the first clause. The third clause simply says that, when federal court have jurisdiction, the jurisdiction must be exercised by a federal court in the state in which the crime occurred. It's not a question of deciding between federal court or state court, but among different federal courts.

And crimes "not committed within any State" are crimes like piracy, which are committed on the high seas and outside the borders of any state. Another example is that of John Walker Lindh, who was tried and convicted in the US of violating US laws while fighting for the Taliban in Afghanistan. In both those types of cases, Congress can by statute decide the location of the federal court in which to conduct the trial.

You seem to believe that, until Congress created federal courts, no state court could have tried or punished anyone for piracy on the high seas, but I don't know why that would be true. I am sure that the states had the power to punish piracy before the ratification of the Constitution, and I see nothing in the Constitution that would deprive them of that power *except* as Congress might deprive them of that power by statute.

[DarkestBeforeDawn]

I have been reading this appeal and also some motions to dismiss on a few other cases with the same argument recently. The argument to me has nothing to do with venue, it is about subject matter jurisdiction, at least that is my opinion on the matter. Jackson is saying it's not within the power of Congress per Article 3 as given up by the States.

"The 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."

I would have to agree with ASITStands on this. It seems like a pretty simply argument to me and it is not one I have ever seen argued in this manner. It does seem like DOJ is not really addressing this matter in this Appeal or in their other replies to other MTD in other cases that I have seen. They keep going back to the crime was committed in the "District of ....", when the argument is whether or not it was committed in the State or outside the State. DOJ keeps referring back to 3231 but that section would be rendered moot by Jackson's claim if it were committed in the "State". This has nothing to do with venue, IMHO, the correct label would be lack of subject matter jurisdiction.

I have seen many idiotic arguments on jurisdiction, I don't know if this would be one of them. Long time lurker, first time poster, I tried to register a few months ago with but there was a problem with the database.

[Demosthenes]

Welcome to Quatloos, DBD.

[Nikki]

I have been reading this appeal and also some motions to dismiss on a few other cases with the same argument recently. The argument to me has nothing to do with venue, it is about subject matter jurisdiction, at least that is my opinion on the matter. Jackson is saying it's not within the power of Congress per Article 3 as given up by the States.

"The 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."

I would have to agree with ASITStands on this. It seems like a pretty simply argument to me and it is not one I have ever seen argued in this manner. It does seem like DOJ is not really addressing this matter in this Appeal or in their other replies to other MTD in other cases that I have seen. They keep going back to the crime was committed in the "District of ....", when the argument is whether or not it was committed in the State or outside the State. DOJ keeps referring back to 3231 but that section would be rendered moot by Jackson's claim if it were committed in the "State". This has nothing to do with venue, IMHO, the correct label would be lack of subject matter jurisdiction.

I have seen many idiotic arguments on jurisdiction, I don't know if this would be one of them. Long time lurker, first time poster, I tried to register a few months ago with but there was a problem with the database.

Does the word "concurrent" mean anything to you?

Would you care to explain exactly how federal laws are somehow not applicable within any one of the 50 states, territories, possessions, or the District of Columbia?