Ronald Ottaviano

Parvati
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Ronald Ottaviano

Post by Parvati »

Ottaviano is going it pro se, and so far, it has been hilarious. His motions are as lengthy as they are unintelligible. They're so convoluted that I can't even begin to choose a bit to quote for flavor. Instead, I'm going to quote the DoJ's response to Ottaviano's Motion to Dismiss for Lack of Subject Matter Jurisdiction.

Filed on 20 Jan 2011:
While the Government does not quarrel with the notion that pro se pleadings should be held to 'less stringent standards than formal pleadings drafted by lawyers,' Haines v. Kerner, 404 U.S. 519, 520 (1972), pro se pleadings must be held to some standard, and by any standard defendant Ottaviano's motion is woefully inadequate. The defendant seems to believe that there is little more to an effective motion than combining unrelated Supreme Court precedent, random federal statutes, and incoherent Latin phrases with a strong overlay of paranoia--'{i}n sum, this federal prosecution practice [sic] amounts to a criminal conspiracy among administrative and judicial officers.' Defendant's Motion at 8. The defendant is mistaken. Indeed, defendant Ottaviano's motion evokes images of the high school English student who, intent on impressing his teacher, ladens his essay with polysyllabic words at the cost of coherence.

As best the Government can discern, defendant Ottaviano advances several challenges to the Superseding Indictment, including: (1) proceeding by indictment rather than criminal complaint was improper and violative of Federal Rules of Criminal Procedure; (2) the grand jury was unconstitutionally composed; and (3) a defendant can only be charged criminally with violating a regulation, and not a criminal statute. The Government addresses each of these arguments in turn.
The US Attorney goes on to have a go at each of Ottaviano's arguments, ending with:
C. The Defendant Misapprehends Basic Constitutional Law

While the Government appreciates that defendant Ottaviano is not an attorney, a basic tenet of the most basic grade school civics course is that Congress, not the Executive, is responsible for defining criminal offenses and attendant punishments. See U.S. Constitution, Article I, Section 8. While Congress may delegate that authority to the Executive in limited circumstances, it need not, and delegation is certainly not a prerequisite -- as defendant Ottaviano asserts -- to a validly enacted criminal statute. See, e.g. Touby v. Unites States, 500 U.S. 160 (1991) (upholding Congress' delegation of authority to the Attorney general to classify controlled substances only because, in delegating that authority, Congress set forth an 'intelligible principle' to which the Attorney general was directed to conform). Simply, notwithstanding defendant Ottaviano's protestations, with or without implementing regulations, a validly enacted criminal statute has full legal effect. See, e.g. Defendant's Motion at 16 ('A Statute by itself has no legal effect.').
Is the tone of this response a tad unusual, or is the biting/bitchy quality an acceptable norm when responding to pompous windbags who spout 35+ pages of semi-literate, paranoid wingnuttery?

I have .pdf's of Ron's motions, but they're incredibly long and since I'm unable to cut-and-paste from them, I'm not inclined to spend a great deal of time typing it up. If anyone has PACER and wants a laugh, have a look at the motions filed at #s 84 (Dismiss/Jurisdiction), 89 (Discovery), and 92 (Speedy Trial).

Edited to add: If anyone has a file sharing site they recommend, I'd give it a try for the amusement of the PACER-deprived.
Last edited by Parvati on Fri Apr 01, 2011 2:01 pm, edited 2 times in total.
"The risk in becoming very intimate with a moldie Parvati is that she may unexpectedly become a Kali and take your head."--Rudy Rucker, Freeware
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Parvati
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Posts: 239
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Re: Ronald Ottaviano's going it pro se....

Post by Parvati »

Here's Ottaviano's Motion to Dismiss for Lack of Subject Matter Jurisdiction. (The government response to this motion is excerpted, above.) I added the formatting (bold, italics, underlines, etc.) and I believe it's accurate, but I could not match the fonts or the kerning/spacing irregularities. I didn't even bother to attempt the font color changes between black and gray.

When he goes on about the Constitution, he sounds like the TDers in many of the other posts I've read here on the boards. It's also fairly obvious that he's not any closer to comprehending it than the rest of them.
_______________________________________

UNITED STATES
Plaintiff
V.
RONALD OTTAVIANO
Defendant

Criminal No. 10-485 (WJM)
U.S. District Court Judge William F. Martini
________________________________________

MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

COMES NOW Defendant Ronald Ottaviano a resident of New Jersey and seeks declaratory judgment on Constitutional grounds, violations of Court rules and violations of statutes, who are not learned in the law and seek certain latitudes from this court based on; Haines v. Kerner, 404 U.S. 519, 92 S Ct. 594, 30 L. ed. 2d 652 (1972)

PLEASE TAKE NOTICE that on a date to be set by the court, Defendant Ronald Ottaviano, pro se, with the assistance of Michael V. Calabro, Esq., shall move before the Honorable William J. Martini, United States District Court Judge for the District of New Jersey for an order to:

(1) Dismiss the above captioned case for lack of subject matter Jurisdiction

It is hereby alleged and established by the defendant that the criminal case and the initial indictment at bar is defective pursuant to the rules of court, Federal rules of Criminal Procedure and the Constitution for the United States of America, Pursuant to Rule 12(a) & (b). to wit
(i) In this case an indictment was handed down by a grand Jury affording
the defendant no opportunity to challenge the array of the Grand Jury pool and voir dire individual Grand Jury Candidates prior to the Grand Jury being sworn in. (Rule 6(b), F.R.Crim,P. & 28 U.S.C. 1867).
In addition, the grand jury must return indictments in open court, and the grand jury foreman must file a letter or certificate of concurrence with the clerk of the court. (Rule 6(f), F.R.Crim.P.)
(ii) It appears that the Department of Justice and United States Attorney
have Convened the grand jury under auspices of the "special grand jury" provisions in Chapter 216 ( 3331-3334) of Title 18. However, this is misapplication of law as special grand jury investigation authority extends only to criminal activity involving government personnel, and the grand jury is limited to issuing reports. Defendants and prospective defendants are afforded the opportunity to rebut or correct the reports prior to public release. Although evidence unearthed by the special grand jury may be used as the basis of criminal prosecution, the special grand jury does not have indictment authority.

It appears that the first steps toward securing secret indictments were taken during prohibition days to shield grand jury members from reprisal. Although secret indictments were and are patently unconstitutional, the extreme remedy in the midst of highly volatile and dangerous circumstance was rationalized in the midst of what amounted to domestic war with organized crime. Unfortunately, as other such rationalizations, those who found the extraordinary process convenient incorporated it as routine practice. Rule 60(b) of the Federal Rules of Civil Procedure preserves causes to challenge judgments. They are as follows:

Mistake, inadvertence, surprise, or excusable neglect; newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;

If a defendant doesn't know a grand jury is investigating him, he doesn't have the opportunity to challenge the grand jury array, or individual grand jurors. Consequently, he has been deprived of substantive due process, which is expressly prohibited by 28 U.S.C. 2072(b).

We have an adversarial judicial system. All parties to any given action, the government included, stand on equal ground. The system isn't set up for convenience of the government. Government always has the burden of proof, whether in civil or criminal matters. The defendant has the right to challenge the qualifications and competency of everyone involved in the prosecution process, inclusive of grand and petit jurors selected from "peers" who ultimately have responsibility for determining indictable offenses and/or final liability. If and when government personnel deprive the Citizen of any of these rights, constitutionally secured due process of law is abridged. In that event, courts lose subject matter jurisdiction.

(iii) In the above captioned case, defendant was not made aware of the Grand
Jury investigation and therefore had no opportunity to challenge the grand jury array, or individual grand jurors. Consequently, he has been deprived of substantive due process, which is expressly prohibited by 28 U.S.C. 2072(b).

Furthermore, there was no affidavit of criminal complaint submitted under oath in a probable cause hearing in this case. (Rule 3, F.R.Crim.P.) A committing magistrate judge must issue a warrant or summons after finding probable cause. (Rule 4, F.R.Crim.P.)

The defendant in this case had no opportunity to cross-examine adverse witnesses and introduce his own evidence, whether the evidence is via witnesses or is documentary in nature. (Rule 5.1, F.R.Crim.P.) The preliminary examination may be bypassed only in the event that the defendant waives the right, or indictment issues subsequent to the initial appearance.

(iv) The defendant, or his counsel, has the right to challenge array of the
Grand Jury pool and voir dire individual grand jury candidates prior to the Grand Jury being sworn in. (Rule 6(b), F.R.Crim.P. & 28 U.S.C. 1867).

(v) The grand Jury must return indictments in open court, and the grand jury foreman must file a letter or certificate of concurrence with the clerk of the court. (Rule 6(f), F.R.Crim.P.) A warrant or summons may issue against additional parties joined to an original complaint under provisions of Rule 8 subsequent to grand jury deliberation and return of indictment in accordance with Rule 6. (Rule 9, F.R.Crim.P.)

(None of the fore mentioned has occurred in this case)

After all previous conditions are met, as applicable, a defendant may be arraigned and called on to plead. (Rules 10 & 11, F.R.Crim.P.)

(vi) Furthermore, what is the geographical application of any given law or set
of laws? In Foley Brothers v. Filardo (1948) 336 U.S. 281, we find that "It is a well established principle of law that all federal legislation applies only within the territorial
Jurisdiction of the United States unless contrary intent appears."

Congress has two distinct characters: Where States of the Union are concerned, Congress may legislate only within the framework of constitutionally enumerated powers, but where territory belonging to the United States is concerned, Congress operates with the combined authority of state and national governments much on the order of European governments, and may do whatever the Constitution does not expressly or implicitly prohibit. Where States of the Union are concerned, Congress' authority is restrictive; where the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, the Northern Mariana Islands, and smaller insular possessions are concerned, Congress has plenary or near-absolute power.

It may be that Congress exercises a general power enumerated in Article I sec 8 of the Constitution, but application is limited to the geographical United States, i.e., territory belonging to the United States. This, then, is another element of burden of proof, i.e., proof of subject matter jurisdiction. The advocate, in this case the Attorney General or U.S. Attorney, must prove the venue or geographical application of any given statute.

(vii) Furthermore, at 28 U.S.C. 2072(b) that Federal rules of procedure may
not deprive anyone of substantive rights. In a manner of speaking, rights secured by the Fourth, Fifth, and Sixth Amendments are carved in stone, and they are cumulative, they are not independent or elective unless someone knowingly chooses to forfeit one of the specified rights. If one of the constitutionally secured rights is bypassed, administrative offices including the Department of Justice and the U.S. Attorney and courts of the United States, lack or lose subject matter jurisdiction. This is the essence of the Fifth Amendment guarantee that no person shall be deprived of life, liberty or property without "due process of law."

The Fourth Amendment requirement for probable cause, "supported by Oath or affirmation," is the jumping-off point: “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.

Here are two secured rights: There must be an oath or affirmation, a complaint, that specifies key elements of a crime, and a committing magistrate must issue a warrant based on the complaint. The complaint is made in a probable cause hearing. Unless or until these threshold requirements are met, there can be no Federal prosecution.

In this case no actual complaint has been made, all we have is a grand jury indictment, and within a lot of accusations, allegations, and innuendo by the prosecutor.
There is no actual charges within this indictment.

"Rule 3. The Complaint "

The Complaint is a written statement of the essential facts constituting the offense charged. It shall be made upon oath before a magistrate judge."

We then go to Rule 4, "Arrest Warrant or Summons Upon Complaint".
Rules 3 through 9 of the Federal Rules of Criminal Procedure preserve the proper procedural sequence of the Fourth, Fifth and Sixth Amendments. If any portion of any of these rules, i.e., of any of the three amendments, is defective, Courts of the United States lose subject matter jurisdiction.

If a court lacks subject matter jurisdiction, the action, judgment, or whatever is void, it is a nullity, so where there is a judgment, it should be vacated.

When working within Federal rules of procedure, it is important to know that the rules preserve constitutionally secured rights. Authority for the Supreme Court to promulgate rules of procedure is at 28 U.S.C. 2072, and 2072(b) preserves rights: "(b) such rules shall not abridge, enlarge or modify any substantive right."

Where is the affidavit of complaint, probable cause hearing, et al? The defendant has not had the opportunity to examine witnesses and evidence against him, call his own witnesses and present contravening documentary or other evidence. This prosecution practice has trashed the Fourth, Fifth, and Sixth Amendment due process rights, and it employs the services of quasi-judicial officers who don’t have lawful authority to do what they are doing. In sum, this federal prosecution practice amounts to a criminal conspiracy among administrative and judicial officers.

(viii) Federal criminal prosecution must begin with the affidavit of criminal complaint required by the Fourth Amendment and Rule 3 of the Federal Rules of Criminal Procedure. Without the affidavit of complaint, courts of the United States do not have subject matter jurisdiction, so whatever ensuing verdict, judgment and/or sentence there might be is a nullity, it is void and should be vacated.

We then go to Rule 4, the warrant issued subsequent to the probable cause hearing. Warrants for seizure and/or arrest must issue following, they cannot issue without a probable cause hearing. There was no probable cause hearing in this case.

This Federal Court is presently relying on Rule 9(a), "Warrant or Summons Upon Indictment or Information". Rule 9(a), in relative part, stipulates that, "Upon the request of the attorney for the government the court shall issue a warrant for each defendant named in an information supported by a showing of probable cause under oath as is required by Rule 4(a), or in an indictment. More than one warrant or summons may issue for the same defendant. When a defendant arrested with a warrant or given a summons, appears initially before a magistrate judge, the magistrate judge shall proceed in accordance with the applicable divisions of Rule 5."
They then jump to Rule 10, the arraignment, rather than dropping back to Rule 5, as Rule 9 specifies. Rule 5 is "Initial Appearance before the Magistrate Judge."

(ix) Grand juries have certain investigative powers. If in the course of
Investigating a cause of action that is lawfully before them, grand jury members may find evidence sufficient to recommend additional charges, or name additional defendants, by way of presentment. However, if the original complaint against the primary defendant for a specific offense is not before it, the grand jury has no basis for initiating an investigation. There must be original probable cause determined by a committing magistrate, with the finding of probable cause being predicated on the antecedent complaint. (This is not the case in the application before us)

We're going to use Rule 6(b)(1) to demonstrate this point:
"(1) Challenges. The attorney for the government or a defendant who has been held to answer in the district court may challenge the array of jurors on the ground that the grand jury was not selected, drawn or summoned in accordance with law, and may challenge an individual juror on the ground that the juror is not legally qualified. Challenges shall be made before the administration of the oath to the jurors and shall be tried by the court."

(x) The right to challenge grand jury array (composition) and individual jurors is antecedent to individual jurors being administered the oath required prior to a grand jury being formally seated. The government attorney and the defendant, or the defendant's counsel, both have the right to challenge array and disqualify grand jury candidates prior to the grand jury being seated. If this right has been denied, there is a simple solution at Rule 6(b)(2):

"(2) Motion to Dismiss. A motion to dismiss the indictment may be based on objections to the array or on the lack of legal qualification of an individual juror, if not previously determined upon challenge. It shall be made in the manner prescribed in 28 U.S.C. 1867(e) and shall be granted under the conditions prescribed in that statute. An indictment shall not be dismissed on the ground that one or more members of the grand jury were not legally qualified if it appears from the record kept pursuant to subdivision (c) of this rule that 12 or more jurors, after deducting the number not legally qualified, concurred in finding the indictment." Rule 6(c) requires the grand jury foreman to record the vote, then, file a letter or certificate of concurrence with the clerk of the court.

(xi) If the original defendant or his counsel did not have the opportunity to challenge the grand jury array (composition selection process) and individual grand jurors prior to the grand jury being seated, they're all disqualified as the qualification process is among the defendant's constitutionally secured due process rights. By consulting Chapter 121 of Title 28 generally, and 28 U.S.C. 1867 specifically, we find that there is no distinction in the voir dire examination and other jury qualification process for grand juries or petit trial juries:

"(a) In criminal cases, before the voir dire examination begins, or within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds therefore, whichever is earlier, the defendant may move to dismiss the indictment or stay the proceedings against him on the ground of substantial failure to comply with the provisions of this title in selecting the grand or petit jury."

If a defendant doesn't know a grand jury is investigating him, he doesn't have the opportunity to challenge the grand jury array, or individual grand jurors. Consequently, he has been deprived of substantive due process, which is expressly prohibited by 28 U.S.C. 2072(b).

(xii)We have an adversarial judicial system. All parties to any given action, the government included, stand on equal ground. The system isn't set up for convenience of the government. Government always has the burden of proof, whether in civil or criminal matters. The defendant has the right to challenge the qualifications and competency of everyone involved in the prosecution process, inclusive of grand and petit jurors selected from "peers" who ultimately have responsibility for determining indictable offenses and/or final liability. If and when government personnel deprive the Citizen of any of these rights, constitutionally secured due process of law is abridged. In that event, courts lose subject matter jurisdiction.

(xiii) In addition, Title 18 Sections 371, 1341, 1343, 2, and title 26 section 7201 of this indictment have no implementing regulations in the Code of Federal Regulations. In California Bankers Ass. V. Schultz, 416 U.S. 21, 1974 the court said: "Statute without an Implementing Regulation has no full force and effect of law." And in;
.” U.S. v. Mersky, 361 U.S. 431, 4 L.Ed. 2d 423, 80 S.Ct. 459 (1960)
“An individual cannot be prosecuted for violating this Act unless he violates an implementing regulation … The result is that neither the statute nor the regulations are complete without the other, and only together do they have any force. In effect, therefore, the construction of one necessarily involves the construction of the other.”

The decision in Mersky was agreed with by 11 courts that have upheld this decision, seven Supreme Court cases and four Circuit court cases.


SUMMARY:

In this case an indictment was handed down by a grand Jury affording the defendant no opportunity to challenge the array of the Grand Jury pool and voir dire individual Grand Jury Candidates prior to the Grand Jury being sworn in. (Rule 6(b), F.R.Crim,P. & 28 U.S.C. 1867).

The grand jury must return indictments in open court, and the grand jury foreman must file a letter or certificate of concurrence with the clerk of the court. (Rule 6(f), F.R.Crim.P.) In this case the indictment was not returned in open court and no letter or certificate of concurrence was filed with the clerk.

Defendant was not afforded the opportunity to rebut or correct the reports prior to public release. Although evidence unearthed by the special grand jury may be used as the basis of criminal prosecution, the special grand jury does not have indictment authority.

In this case defendant was not aware that the grand jury was investigating him, he did not have the opportunity to challenge the grand jury array, or individual grand jurors. Consequently, he has been deprived of substantive due process, which is expressly prohibited by 28 U.S.C. 2072(b).

Furthermore, there was no affidavit of criminal complaint submitted under oath in a probable cause hearing in this case. (Rule 3, F.R.Crim.P.) A committing magistrate judge must issue a warrant or summons after finding probable cause. (Rule 4, F.R.Crim.P.)

The defendant in this case had no opportunity to cross-examine adverse witnesses and introduce his own evidence, whether the evidence is via witnesses or is documentary in nature. (Rule 5.1, F.R.Crim.P.) The defendant, or his counsel, was deprived of the right to challenge array of the grand jury pool and voir dire individual grand jury candidates prior to the grand jury being sworn in. (Rule 6(b), F.R.Crim.P. & 28 U.S.C. 1867).

The defendant has been deprived of his substantive rights in this case, at 28 U.S.C. 2072(b) that Federal rules of procedure may not deprive anyone of substantive rights.

In addition, there is no charge in the indictment only allegations given to the Grand Jury. Also, 18 U.S.C. §§371, 1341, 1343, 2, and title 26 section 7201 have no implementing regulations in the CFR.

"Statute without an Implementing Regulation has no full force and effect of law." Furthermore, that without such publishing of that particular type of regulation in the Federal Register, then no penalties can be imposed upon anyone according to the United States Supreme Court decision California Bankers Assn. v. Schultz, 39 L.Ed. 2d 812 at 820

.” U.S. v. Mersky, 361 U.S. 431, 4 L.Ed. 2d 423, 80 S.Ct. 459 (1960)
“An individual cannot be prosecuted for violating this Act unless he violates an implementing regulation … The result is that neither the statute nor the regulations are complete without the other, and only together do they have any force. In effect, therefore, the construction of one necessarily involves the construction of the other.”
, agreed with in Leyeth v. Hoey, supra, U.S. v. $200,00 in U.S. Currency, 590 F.Supp. 866; U.S. v. Palzer, 745 F.2d 1350 (1984); U.S. v. Cook, 745 F.2d 1311 (1984); U.S. v. Gertner, 65 F.3d 963 (1st Cir. 1995); Diamond Ring Ranch v. Morton, 531 F.2d 1397, 1401 (1976); U.S. v. Omega Chemical Corp., 156 F.3d 994 (9th Cir. 1998); U.S. v. Corona, 849 F.2d 562, 565 (11th Cir. 1988); U.S. v. Esposito, 754 F.2d 521, 523-24 (1985); U.S. v. Goldfarb, 643 F.2d. 422, 429-30 (1981).

Assn. v. Schultz, 416 U.S. 21, 1974. A Statute by itself has no legal effect.

No penalty can attach without an implementing regulation, the defendant must have violated the regulation.

Based on all of the foregoing defendant hereby demands the dismissal of the grand jury in this case, the indictment a nullity, and that the case at bar be dismissed for lack of subject matter jurisdiction.

Respectfully submitted this 30th day of December 2010

_\S\_Ronald Ottaviano_______________
Ronald Ottaviano, pro se
Last edited by Parvati on Mon Jan 24, 2011 3:00 am, edited 1 time in total.
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grixit
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Re: Ronald Ottaviano's going it pro se....

Post by grixit »

And the judge responded.

You say that you are "unlearned in law", that's pretty clear from this paper you turned in. I'm giving you a big "F" for Frivolous, and a fine of $2500. Call it a lab fee. Your homework is to rewrite your paper so that it is legally valid. You have two months. Oh, and whatever tutors or study buddies you've been using-- they aren't helping you.
Three cheers for the Lesser Evil!

10 . . . . . . . . . . . . . . . 2
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Parvati
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Posts: 239
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Location: USA

Re: Ronald Ottaviano's going it pro se....

Post by Parvati »

Ottaviano has now filed a Motion to Dismiss for Lack of Venue Authority. Given the DoJ responses to his last three motions, I can hardly wait to see what they'll have to say about this monstrosity. It stinks of the typical TP/sovereign attitude that the US government only has authority over a small patch of dead grass in DC that is populated by a small pigeon, a rat and three earthworms. I give it a 10 for generally deluded nutbagginess.

Ottaviano also "seeks certain latitudes" because he's pro se, but he's obviously not even proofreading his yammerings. I don't know how much sloppiness the judge will tolerate. (If Ottaviano can't be bothered to capitalize "New Jersey" properly in the *first sentence,* there's scant hope of a truly well-presented document.)

Filed on 31 Jan 2011:
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY


UNITED STATES: Plaintiff
V.
RONALD OTTAVIANO: Defendant

Criminal No. 10-485 (WJM)
U.S. District Court Judge: William F. Martini

________________________________
MOTION TO DISMISS FOR LACK OF VENUE AUTHORITY

COMES NOW defendant Ronald Ottaviano a resident of New jersey and seeks declaratory judgment on grounds that this court lacks venue authority pursuant to 4 USC § 72.
The defendant is pro se who are not learned in the law and seek certain latitudes fro this court based on; Haines v. Kerner, 404 U.S. 519, 92 S Ct. 594, 30 L. ed. 2d 652 (1972).

PLEASE TAKE NOTICE that on a date to be set by the court, Defendant Ronald Ottaviano, pro se, with the assistance of Michael V. Calabro, Esq., shall move before the Honorable William J. Martini, United States District Court Judge for the District of New Jersey for an order to:
quash the indictment, dismiss the complaint, and exonerate any and all bonds on grounds that this Court lacks subject matter jurisdiction based on venue.

1. 4U.S.C. § 72, which is positive law, mandates that all offices of government are restricted to ―the District of Columbia, and not elsewhere‖ unless Congress ―expressly‖ extends their granted authority to other geographical areas by United States law.
All offices attached to the seat of government shall be exercised in the District of Columbia, and not elsewhere, except as otherwise expressly provided by law. 4 U.S.C. § 72
2. United States law 4 U.S.C. § 72 provides the litmus test for the jurisdiction of every office attached to the seat of government; which includes the Secretary and his alleged Delegates.
3. 4 U.S.C. § 72 is concerned with the venue or ―WHERE‖ offices of the United States can exercise their authority and not WHAT said offices can do. The breakdown of this law is as follows:
a . ALL offices attached to the seat of government are contemplated in this law and not just some offices – this includes the Secretary, the IRS and the Department of Justice (―DOJ‖), etc.;
b. The provisions of 4 U.S.C. § 72 are mandatory by the use of the word ―shall‖ by Congress. In other words, this is not an optional consideration for any United States officer, Court or Agency;
c. The ―exercise‖ of ALL government offices is by default limited to ―the District of Columbia, and not elsewhere.‖ This means that ―the District of Columbia‖ is the starting place for jurisdiction not the exception;
d. An exception can be made to said limitations of ALL offices to ―the District of Columbia, and not elsewhere.‖ As set forth in 4 U.S.C. § 72, authority to act outside ―the District of Columbia‖ must be ―otherwise expressly provided by law.‖ This means that if Congress intends to extend the authority of a particular office of the United States to areas outside ―the District of Columbia,‖ it shall ―expressly‖ delegate, grant and extend said authority in United States law; and
e. Any ―expressly‖ delegated exception to the limitations of an officer’s authority to that of ―the District of Columbia, and not elsewhere‖ is to be authorized by Congress in ―law.‖ Since Congress (Legislative Branch) has the exclusive authority to create law for the United States (District of Columbia) and the territories and insular possessions, exceptions to the mandate of 4 USC § 72 shall be found only in United States law and not in Codes of Regulations or presidential executive orders (Executive Branch) or in Supreme Court rulings (Judicial Branch). Only Congress by United States law can authorize, grant or extend the authority of any government office outside ―the District of Columbia,‖ pursuant to 4 U.S.C. § 72.
4. 4. The Supreme Court agrees:
―Official powers cannot be extended beyond the terms and necessary implications of the grant. If broader powers be desirable, they must be conferred by Congress.”Federal Trade Commission v. Raladam Co., 283 U.S. 643, 51 S.Ct. 587 (1931)(Emphasis added)
5. One of the key words in 4 U.S.C. § 72 is the word ―expressly.‖ This means that when Congress extends the authority of any office or officer of the United States outside ―the District of Columbia, and not elsewhere,‖ Congress will do it by ―expressly‖ extending the Secretary’s authority and by leaving no doubt that said authority has been ―expressly‖ extended by Congress to a particular geographical area outside ―the District of Columbia.‖ The definition of ―expressly‖ from Black’s Law Dictionary, 6th Ed. is as follows:
―In an express manner; in direct and unmistakable terms; explicitly; definitely; directly. St. Louis Union Trust Co. v. Hill, 336 Mo. 17, 76 S.W.2d. 685, 689. The opposite of impliedly. Bolles v. Toledo Trust Co., 144 Ohio St. 195, 58 N.E.2d. 381, 396.” (Emphasis added)
6. Any exception to the limitations of 4 USC § 72 is to be authorized ―expressly‖ by Congress in United States ―law‖. The Courts are not empowered to extend the authority of the Secretary to any other place other than ―the District of Columbia‖ (see case cited in ¶ 20.c herein).
7. What follows are examples of United States by which Congress has ―expressly‖
extended the Secretary’s authority outside ―the District of Columbia:‖
a. 48 USC § 1612(a) is cited herein as follows:
Jurisdiction. The District Court of the Virgin Islands shall have the jurisdiction of a District Court of the United States, including, but not limited to, the diversity jurisdiction provided for in section 1332 of title 28, United States Code, and that of a bankruptcy court of the United States. The District Court of the Virgin Islands shall have exclusive jurisdiction over all criminal and civil proceedings in the Virgin Islands with respect to the income tax laws applicable to the Virgin Islands, regardless of the degree of the offense or of the amount involved, except the ancillary laws relating to the income tax enacted by the legislature of the Virgin Islands. Any act or failure to act with respect to the income tax laws applicable to the Virgin Islands which would constitute a criminal offense described in chapter 75 of subtitle F of the Internal Revenue Code of 1954 [26 USCS § § 7201 et seq.] shall constitute an offense against the government of the Virgin Islands and may be prosecuted in the name of the government of the Virgin Islands by the appropriate officers thereof in the District Court of the Virgin Islands
without the request or consent of the United States attorney for the Virgin Islands, notwithstanding the provisions of section 27 of this Act [48 USCS § 1617]. (Emphasis added)
and
b. 48 USC § 1397. Income tax laws of United States in force; payment of proceeds; levy of surtax on all taxpayers
The income-tax laws in force in the United States of America and those which may hereafter be enacted shall be held to be likewise in force in the
Virgin Islands of the United States, except that the proceeds of such taxes shall be paid into the treasuries of said islands: Provided further, That, notwithstanding any other provision of law, the Legislature of the Virgin Islands is authorized to levy a surtax on all taxpayers in an amount not to exceed 10 per centum of their annual income tax obligation to the government of the Virgin Islands.
and
c. 48 USC § 1421i. Income tax
Applicability of Federal laws; separate tax
The income-tax laws in force in the United States of America and those which may hereafter be enacted shall be held to be likewise in force in Guam: Provided, That notwithstanding any other provision of law, the Legislature of Guam may levy a separate tax on all taxpayers in an amount not to exceed 10 per centum of their annual income tax obligation to the Government of Guam.
and
d. 48 SC § 1801. Approval of Covenant to Establish Commonwealth of Northern Mariana Islands That the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America, the text of which is as follows [note to this section], is hereby approved.
and
e. the Covenant which was approved by Congress states in part:
―Article VI ―revenue and taxation ―Section 601. (a) The income tax laws in force in the United States will come into force in the Northern Mariana Islands as a local territorial income tax on the first day of January following the effective date of this Section, in the same manner as those laws are in force in Guam.‖ Under the NOTES under References in Text it states: ―The income-tax laws in force in the United States of America, referred to in text, are classified to Title 26, Internal Revenue Code.‖
8. In 55 Stat. 685, the War Department (later renamed to Department of Defense (―DOD‖)) was ―expressly‖ authorized by Congress to enter Arlington County, Virginia and occupy an office building on land which had already been designated and approved for the Department of Agriculture. This shows conclusively that even when the federal government has ―expressly‖ authorized one office of the government to operate and function outside the District of Columbia and within one of the several 50 union states (―several states‖) (Virginia) pursuant to 4 USC § 72, another office of the government seeking to operate in the same area outside the District of Columbia, obtains the ―expressly‖ granted authority by Congress for that specific office to operate in said specific geographical area outside the District of Columbia.
9. Unless Congress through United States law ―expressly‖ grants to the Secretary the authority to Act outside ―the District of Columbia‖ (the ―WHERE‖), any non-specific and general authority dealing with ―WHO‖ has authority or ―WHAT‖ authority is given to a particular office attached to the seat of government is to be construed as limited to and restricted to ―the District of Columbia, and NOT ELSEWHERE,‖ pursuant to 4 USC § 72.
10. Over 40 U.S. Attorneys have been unable to find and submit into evidence any such United States law by which Congress ―expressly‖ extends the authority of the Secretary to the several states1 in like manner as Congress has so ―expressly‖ extended the authority of the Secretary to the Virgin Islands, Guam and the Northern Mariana Islands; soil over which Congress has ―exclusive‖ legislative jurisdiction in contradistinction to the several states; soil over which Congress has ―limited‖ and NOT ―exclusive‖ legislative jurisdiction.
11. In addition to the mandates of 4 USC § 72, Congress has also enacted United States law which restricts the delegates of the Secretary and the Commissioner from leaving ―the District of Columbia‖ and entering the several states without designated authority from the Secretary and the Commissioner. In 1994, 26 USC § 7803(b)(1) stated in part the following: ―
(b) Appointment and supervision
―(1) Designation of Post of Duty
―The Secretary shall determine and designate the posts of duty of all such persons engaged in field work or traveling on official business outside the District of Columbia.‖ (Emphasis added)

12. The current rendition of the same law is now found in 26 USC § 7804(b)(1) and reads as follows:
―(b) Posts of duty of employees in field service or traveling ―Unless otherwise prescribed by the Secretary— ―(1) Designation of post of duty
1 Of Course, if said law did exist, why wouldn’t the Courts and U.S. Attorneys simply just present said law for all to see? What could be simpler? However, at least 40 U.S. Attorney’s have been asked to present said authority and not one has been able to bring forward any said ―expressly‖ delegated authority in United States law. Instead, they have claimed that claims based on 4 USC § 72 are frivolous without themselves offering any law in support of the notion that said jurisdiction claims are in fact frivolous or as in the case of Walden v. U.S., #A-05-CA-444-LY, U.S. District Court, Austin, TX, the Court issues a protective order so the United States does not have to expose the Material Fact that Congress has not so ―expressly‖ extended the authority of the Secretary to the several 50 union states. Courts which simply declare that the IRS or the Secretary can exercise their authority without at the same time substantiating said declaration with an ―expressly‖ extended authority granted by Congress in United States law is nothing more than an opinion and bears no weight when deciphering United States law 4 USC § 72 and determining if the Secretary has jurisdiction in the several states pursuant thereto. 2 Said field service personnel which have been so designated outside the District of Columbia by the Secretary or the Commissioner can be designated to work inside the District of Columbia and then Reassigned, by delegation of authority, to a designated post of duty back outside the District of Columbia after their work is done (See 26 USC § 7803(b)(1) (1994) (re-codified as 26 USC § 7804(b)(1)).
“The Commissioner shall determine and designate the posts of duty of all such persons engaged in field work or traveling on official business outside of the District of Columbia.‖2 (Emphasis added)
13. To confirm whether the Secretary, the Commissioner or their delegate IRS Agents have the authority to administer and enforce internal revenue laws within the several states, where is the delegation of authority from the Secretary to the Commissioner or other alleged delegates which ―designate‖ that IRS agents or delegates acting on behalf of the Secretary have a ―post of duty‖ in geographical areas ―outside the District of Columbia‖ and within the several states for the purpose of conducting ―official business‖ pursuant to 26 USC § 7803(b)(1) (1994) (re-codified as 26 USC § 7804(b)(1)) and 4 USC § 72? Since over 40 U.S. Attorneys cannot produce said law or said delegation of authority, it can only be concluded that no such delegation of authority exists in United States law. For this reason, no designation has been published in the federal register thereby giving notice to Citizens in the several states of the extended powers of the Secretary and his delegates. If no such United States law exists, then the Secretary has no authority ―expressly‖ granted to him by Congress which he can exercise with the several states.
14. This should remove all doubt and should confirm to the reader that Congress does in fact ―expressly‖ extend the authority of the Secretary to other locations outside ―the District of Columbia‖ in United States law when it intends to do so. In fact, if Congress follows the mandates of 4 USC § 72 with regard to the Virgin Islands, Guam and the Northern Mariana Islands— territories or insular possessions of the United States over which it has exclusive legislative authority—why shouldn’t Congress also follow the mandates of 4 USC § 72 with respect to the several states—areas over which it does NOT have exclusive legislative jurisdiction? There is no legal argument or basis in law by which one can sustain the contention that Congress follows the mandates of 4 USC § 72 in territories or insular possessions of the United States over which it has a greater ―exclusive‖ legislative authority and Congress ignores the mandates of 4 USC § 72 in areas such as the several states over which Congress has only a lesser ―limited‖ legislative or constitutional authority.
15. It has been long established by the Courts that in personam and subject-matter jurisdiction are paramount to an Agencies authority to act. The following ruling demonstrates that it is not frivolous for one to demand, from an Agent acting on behalf of the Secretary, what Act of Congress ―expressly‖ extends the authority of the Secretary outside ―the District of Columbia‖ to the several states pursuant to 4 USC § 72:
“The laws of Congress in respect to those matters do not extend into the territorial limits of the States, but have force only in the District of Columbia, and other places that are within the exclusive jurisdiction of the national government.” Caha v. United States, 152 US 211 (Emphasis added)
16. The location of ―United States‖, as defined by law, further confirms that the authority of the Secretary is restricted to ―the District of Columbia, and not elsewhere.‖ The Uniform Commercial Code at § 9-307(h) states:
―(h) The United States is located in the District of Columbia.‖
17. This exact provision is reflected in various state codes, including, but not limited to
California and Texas.3
18. Unless the Secretary or his delegates (IRS) as a complaining party in any action can establish that Congress has ―expressly‖ extended the authority of the Secretary outside ―the District of Columbia‖ to the several states, any Actions of any employee of the United States and delegate of the Secretary are null and void:
―Jurisdiction is essential to give validity to the determinations of administrative agencies [i.e., referrals to the DOJ] and where jurisdictional requirements are not satisfied, the action of the agency is a nullity...‖ City Street Improv Co. v. Pearson, 181 C 640, 185 P (1962); O’Neil v. Dept. of Professional & Vocational Standards, 7 CA2d 393, 46 P2d 234 (Emphasis added)
19. There is no law to rebut the facts and law as presented herein relative to 4 USC § 72. It is required that jurisdiction appear on the record pursuant to 4 USC § 72. Failure to do so is a denial of Petitioner’s rights to due process:
―The law requires proof of jurisdiction to appear on the record of the administrative agency and all administrative proceedings‖ Hagans v. Lavine, 415 US 533.
20. No one should not be deceived by the smoke and mirror tactics of U.S. Attorney’s, Non-responsive answers to inquiries to date. Some of these non- responsive answers are as
follows:
a. Treasury Order 150-10 (See ¶ 26) extends the Secretary’s authority to the
Commissioner.
i. This Treasury Order does not address the ―expressly‖ delegated authority of the Secretary;
ii. Furthermore, this is a general delegation of authority which addresses ―WHAT‖ the Commissioner can do and does not address ―WHERE‖ the Commissioner can exercise the Secretary’s authority pursuant to 4 USC § 72;
iii. Nothing in TDO 150-10 ―expressly‖ extends the authority of the Commissioner to the several states;
iv. Furthermore, this Treasury Order has not been published in the Federal Register, pursuant to 44 USC § 1505 and 5 USC § 553 and therefore it is not applicable to the Citizens in the several states. The Secretary admits this by his ruling in 1953, 4 where he requires all divisions or units of the IRS to publish in the Federal Register any item of concern to the American public. This was even more clearly stated in 1955 as follows:
―It shall be the policy to publish for public information all statements of practices and procedure issued primarily for internal use, and, hence, appearing in internal management documents, which affect rights or duties of taxpayers or other members of the public under the Internal Revenue Code and related statutes.‖
v. Since TDO 150-10 has not been published in the Federal Register, it is not applicable to Citizens in the several states; and
vi. Therefore, citing TDO 150-10 is non-responsive to the mandates of 4 USC § 72.
b. U.S. Attorneys have recently begun citing Hughes v. U.S., 953 F.2d 531, 542-43 (9th Cir. 1991) in response to the jurisdictional challenges regarding the Secretary. The Hughes ruling claims that ―4 USC § 72 does not foreclose the authority of the IRS outside the District of Columbia.‖ The only reason given by the Hughes Court is that the President in 26 USC § 7621 is authorized to establish internal revenue districts outside Washington, D.C.6 This argument fails every aspect of the 4 USC § 72 litmus test as follows:
i. Establishing internal revenue districts outside Washington, D.C. does not have the same effect in law as establishing internal revenue districts within the several states; especially in light of 4 USC § 72. It has been cited herein that the Secretary can indeed leave Washington, D.C. and enter The Virgin Islands,
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Guam and the Northern Marianas (to name three other geographical locations) The issue is can he enter the several states?;
ii. 4 USC § 72 mandates that ALL offices associated with the government that have jurisdiction within the several states shall be ―expressly‖ authorized by Congress to act within the several states in United States law. Authorizing the office of President in 26 USC § 7621 does not ―expressly‖ authorize the office of Secretary when the Secretary is not even mentioned;
iii. The term ALL OFFICES, whether defined or not, includes all offices associated with the seat of government. If this refers to buildings, then ALL BUILDINGS are to be in ―the District of Columbia, and not elsewhere‖ unless Congress ―expressly‖ provides otherwise in United States law. It is unlikely that Congress intended that the term ―offices‖ would refer to buildings since buildings cannot exercise any authority at all; only people can exercise authority and it is the authority of said offices which must be ―exercised‖ within only ―the District of Columbia, and not elsewhere‖;
iv. With few exceptions, it is the Secretary who is authorized by Congress to write all needful rules and regulations for the administration and enforcement of Title 26 (See 26 USC §§ 7801, 7805). Therefore it is that Office which must acquire express leave by Congress to act within
_______________________
6 Congress has ―expressly‖ extended the authority of the Secretary to the Virgin Islands with respect to 26 USC
Chapter 75 and this area is obviously outside ―the District of Columbia‖ but not remotely associated with the several states.
The several states not that of the President. The Hughes Court implies in error that 26 USC § 7621 is the ―expressly‖ stated grant of leave issued by Congress as required under 4 USC § 72, claiming that the office of the President of the U.S. is somehow the same office as that occupied by the Secretary.
v. The term ―State‖ as used in 26 USC § 7621 includes ―the District of Columbia‖ (see 26 USC § 7701(a)(10))7. Even if ―State‖ could be concluded to include the several states, this definition does not ―expressly‖ extend the office of Secretary to the several states when the several states are not ―expressly‖ mentioned in the meaning of ―State‖ as used in § 7621 (see § 7701(a)(10)). A ―definition‖ is a limitation upon the term defined and it excludes what is not specifically included (See any dictionary or Black’s Law Dictionary 6th Edition). Without rebuttal to the contrary, Congress has limited the Secretary’s authority to ―the District of Columbia,‖ the Virgin Islands, Guam and the Northern Marianas (see ¶¶ 7supra), never having ―expressly‖ granted the Secretary the statutory leave to exercise his authority in the several states.
vi. Moreover, there is no evidence in the Hughes case or in any other case to establish the material fact that the President has established said internal revenue districts8 in the several states9? However, there is evidence that the President established ―customs districts,‖ but no internal revenue districts have ever been established by the President within the several states.10 If one argues that the President has authorized the Secretary to create internal revenue districts, then what *
7 Under this definition, Alaska and Hawaii were removed from applicability upon receiving freely associated compact state status (See P.L. 86-624, § 18(j); P.L. 86-70, § 22(a)). The several states are “countries” (See 28 USC § 297(b)).
8 The Hughes Court implies that the President’s (Secretary’s alleged “implied”) authority outside Washington, D.C. pursuant to 26 USC § 7621 somehow means that the Secretary’s authority has been “expressly” extended to the several states when in fact all the Court said was that the IRS can act outside of Washington, D.C. Congress has indeed extended the Secretary’s authority (and presumably the IRS) to areas outside “the District of Columbia” but the several states is not one of those areas. As a result of this misleading description of the IRS (Secretary’s) authority, the Courts continue to promulgate the error thatH ugh es extends the authority of the IRS to the several states which violates the letter and spirit of 4 USC § 72. To date, no Court or U.S. Attorney has identified one U.S. law by which Congress has “expressly” extended the authority of the Secretary to the several states thereby forcing American Citizens to speculate that no said authority has been established by Congress for the Secretary in the several states.
9 In 1998, via Executive Order (“E.O.”) #10289, as amended, President William J. Clinton authorized the Secretary to establish revenue districts under authority of 26 USC § 7621. Although § 7621 is not listed in the Parallel Table of Authorities and Rules, E.O. #10289 is listed. The implementing regulations for said Executive Order are found in 19 CFR Part 101. Said regulation establishes “customs collection offices” in each of the several states; it does not establish “internal revenue districts”. A note at 26 CFR § 301.7621-1 confirms that E.O. #10289 is the only authority for establishing revenue districts.
10 The burden of proof that said districts have been established by the President within the several states is upon the Court and U.S. Attorneys if they hope to establish jurisdiction on the record. Without said evidence in the record, Respondent and the Courts cannot assume that
said districts exist and therefore cannot assume that Secretary has any authority in the several states.
*evidence can be entered into the record to show that the Secretary has by treasury order or regulation, created said internal revenue districts within the several states?
vii. If no internal revenue districts have been established in the several states by the President or even by the Secretary, then out of which internal revenue districts allegedly established by the President within the several states does the Secretary administer and enforce internal revenue laws?
c. Several Court rulings have stated that the IRS can exercise its authority outside
the District of Columbia.
i. Every case cited to date by any U.S. Attorney is off-point. 4 USC § 72 states that any ―expressly‖ granted exception to the limitations of ―the District of Columbia, and not elsewhere‖ as mandated, are to be found in United States law and NOT the Courts.
―Official powers cannot be extended beyond the terms and necessary implications of the grant. If broader powers be desirable, they must be conferred by Congress.‖ Federal Trade Commission v. Raladam Co., 283 U.S. 643, 51 S.Ct. 587 (1931)(Emphasis added)
ii. Generally, all cases cited to date have dealt with WHAT the Secretary can do and not WHERE he can do it. 4 USC § 72 is about the geographical location or WHERE the Secretary can exercise his authority and nothing else.
iii. Unless one can present the law which so ―expressly‖ extends the authority of the Secretary to the several states, said offices can only exercise their authority within the geographical areas ―expressly‖ authorized by Congress in law (See ¶ 7supra); and
iv. Therefore citing court rulings is a non-responsive answer.
d. Judges have recently attempted to protect U.S. Attorneys and the government by stating on the record and in orders that the Citizen is arguing that the Secretary cannot leave ―the District of Columbia.‖ Any argument to this effect is a falsification of the record. The contention has always been that he is restricted from ENTERING the several states unless Congress has ―expressly‖ authorized him to do so in United States law. No law, No Authority!
21. The Courts, U.S. Attorneys, the Secretary, the Commissioner and the IRS have a duty to address the issue of jurisdiction as cited herein. Neither the Courts nor the Secretary and his delegates can enforce internal revenue laws within the several states without the Secretary having a clear and ―expressly‖ granted authority to exercise his authority within the several states. To do so would be a denial of Petitioner’s rights to due process and his/her right to the protections afforded by United States law—4 USC § 72 and 26 USC § 7803(b)(1) (1994) (re- codified as 26 USC § 7804(b)(1)—to not be bothered by the government (See 18 USC § 242) and if said right is denied or ignored by more than two officers of the United States, said denial constitutes a denial of Petitioner’s rights pursuant to 18 USC § 241
22. There simply is no ―expressly‖, ―unmistakable‖ and ―explicitly‖ (see definition of ―Expressly‖ in ¶ 4supra) Act of Congress by which Congress has ―expressly‖ extended the authority of the Secretary or that of his alleged Delegates to administer and enforce internal revenue law outside ―the District of Columbia‖ and within the several states with regard to the personal income tax and withholding related thereto.
23. Moreover, the offices associated with the seat of government are foreign to the several states and this is precisely why the jurisdiction of the United States is restricted to ―the District of Columbia, and not elsewhere, except as otherwise expressly provided by law.‖
"The United States Government is a foreign corporation with respect to a state." Volume 20: Corpus Juris Secundum, (P 1785: NY re: Merriam 36 N.E. 505 1441 S.Ct. 1973, 41 L. Ed. 287)
24. The United States Supreme Court removes all doubt by stating this fact in no
uncertain terms:
"The laws of Congress...do not extend into the territorial limits of the states, but have force only in the District of Columbia, and other places that are within the exclusive jurisdiction of the national government." Caha v United States, 152 US, at 215 (Emphasis added)
25. It is not unreasonable to demand said ―expressly‖ delegated authority in light of the following Treasury Department/Delegation Orders (TDO) by which the Secretary ―expressly‖ authorized the Commissioner the authority to ACT in certain areas outside ―the District of Columbia‖:
a. The Commissioner's authority was published in the Federal Register via Treasury Department Order (TDO) 150-42 dated July 27, 1956, 21 Fed. Reg. 5852. It delegated to the Commissioner the following authority:
―The Commissioner shall, to the extent of authority vested in him, provide for the administration of the United States Internal Revenue laws in the Panama Canal Zone, Puerto Rico and the Virgin Islands.‖(Emphasis added)
b. TDO 150-105 of January 24, 1985, Designation of Internal Revenue Districts
states at paragraph 4, U.S. Territories and insular possessions:
―The Commissioner Internal Revenue Service shall, to the extent of authority otherwise vested in him, provide for the administration of the United States Internal Revenue laws in the U.S. territories and insular possessions and other authorized areas of the world. [areas authorized by other delegations of authority]‖11(Emphasis added)
c. TDO 150-104 of January 24, 1985, Designation of Internal Regions and Regional Service Centers, at paragraph 4. U.S. Territories and Insular Possessions:
“The Commissioner, Internal Revenue Service shall, to the extent of authority otherwise vested in him, provide for the administration of the United States Internal Revenue laws in the U.S. Territories and insular possessions:
___________________________
11TDO 150-105 of 1/24/85 was superseded by TDO 150-1 2/27/86.
26. In TDO 150-10 the Secretary delegates his authority to the Commissioner as
follows:
1. The Commissioner of Internal Revenue shall be responsible for the administration
and enforcement of the Internal Revenue laws.‖
27. Given the fact that TDO 150-10 seems to now give the Commissioner Authority to administer and enforce internal revenue law without any geographical limitations, it must be noted that the cancellation of TDO 150-01 by TDO 150-02 decommissioned the districts in the several states and located the 13 offices created by TDO 150-02 within the District of Columbia. In short, when districts existed within the several states, the Commissioner was authorized by the Secretary to act only outside the District of Columbia and within the Panama Canal Zone, Puerto Rico the Virgin Islands, U.S. territories and insular possessions; not within the several states. When the districts are decommissioned in the several states, the commissioner is given authority to act seemingly without any geographic limitations. By this action, one can only conclude that 4 USC § 72 now becomes the limiting factor since Congress has not ―expressly‖ extended the authority of the Secretary to the several states, and the Secretary therefore can only extend his authority granted by Congress to the Commissioner and other delegates in TDO 150-10 to the same geographical areas in which Congress has authorized the Secretary to enter (i.e., the District of Columbia, the Virgin Islands, Guam and the Northern Marianas pursuant to 4 USC § 72, 48 USC §§ 1612(a), 1397, 1421i, 1801 (citing Northern Marianas Covenant § 601), respectively).12
28. Since the Secretary on previous occasions has ―expressly‖ granted authority to the Commissioner, in accordance with the mandates of 4 U.S.C. § 72, in specific areas outside ―the District of Columbia‖ — namely ―Panama Canal Zone‖, ―Puerto Rico‖, ―the Virgin Islands‖ and ―U.S. territories and insular possessions‖ — it is not unreasonable for a Citizen to expect the
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12 There may be other geographical locations so authorized by Congress. However, the several states is not one of those geographical areas; at least 40 U.S. Attorneys have been unable to find said express grant by Congress.
Secretary to follow the same lawful protocol and mandate of 4 U.S.C. § 72 and ―expressly‖ grant the Commissioner the authority to administer and enforce internal revenue law outside ―the District of Columbia‖ to geographical areas which include the several states if he intends to grant said express authority to the Commissioner and his Delegates.
29. All one has to do is show one Act of Congress which ―expressly‖ extends the authority of the Secretary to the several states and this controversy would be over. What could be simpler?
30. It is criminal, in light of the above, for United States Courts and Agencies NOT to presume that the authority of the Secretary, the Commissioner and the IRS is limited and restricted to ―the District of Columbia, and not elsewhere‖ unless it can be shown that Congress has ―expressly‖ extended the authority of the Secretary in United States law to the several states.
31. In the recent confirmation hearings of Supreme Court Justices John G. Roberts, Jr. and Samuel Anthony Alito, Jr reiterated numerous times that this country operates under the rule of law and that it is the law and the intent of Congress when it writes said law that dictates the outcome of cases and not the arbitrary decisions of the Court. If this is true, then the rule of law mandates that no office of the government can exercise their authority outside ―the District of Columbia‖, pursuant to 4 USC § 72, unless Congress ―expressly‖ extends said authority as shown in ¶ 7supra. Following the rule of law in spite of decades of the People’s misconceptions and the governments misrepresentations and in spite of the consequences resulting from following the law, is what makes United States Courts honorable.
32. In footnote 16 of a 1980 case, U.S. v. Will, 449 U.S. 200, the court states:
“In another, not unrelated context, Chief Justice Marshall’s exposition in Cohens v. Virginia, 6 Wheat, 264 (1821), could well have been the explanation of the Rule of Necessity; he wrote that a court “must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by, because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid; but we cannot avoid them.”Id., at 404 (Emphasis added)
33. Finally, 4 USC § 73 states:
“In case of the prevalence of a contagious or epidemic disease at the seat of government, the President may permit and direct the removal of any or all the public offices to such other place or places as he shall deem most safe and convenient for conducting the public business.”
34. Can one presume that Congress intends to hereby grant the President the authority to remove any or all public offices to places outside the United States (i.e. other countries) or is this a grant by Congress to the President to remove offices of the government from ―the District of Columbia‖ and to exercise said offices within the surrounding several states which have not been affected by said epidemic disease? If a grant for offices attached to the seat of government is not required pursuant to 4 USC § 72 for the several states, then why did Congress make this grant in 4 USC § 73? Certainly one would not argue that the President was authorized to take our government to another country on another continent?
Questions Relevant to 4 USC § 72
Q1. Does 4 USC § 72 restrict the actions of the Secretary to ―the District of Columbia, and not elsewhere‖ unless Congress ―expressly‖ authorizes the Secretary to act in other specific geographical areas outside ―the District of Columbia‖ over which Congress has jurisdiction?
Q2. Can anyone point to ANY United States law by which Congress has ―expressly‖
extended the authority of the Secretary to administer and enforce internal revenue laws outside of ―the District of Columbia, and not elsewhere‖ and within the several states as mandated by Congress in 4 USC § 72?
Q3. If one cannot present any such law, then by what authority do the Secretary and the IRS justify their actions outside ―the District of Columbia, and not elsewhere‖ and within the several states?
Q4. Does the right to due process embrace or exclude one’s access to the letter of the
law?
The definition of ―expressly‖ from Black’s Law Dictionary, 6th Ed. is as follows: “In an express manner; in direct and unmistakable terms; explicitly; definitely;
directly. St. Louis Union Trust Co. v. Hill, 336 Mo. 17, 76 S.W.2d. 685, 689.
The opposite of impliedly.Bolles v. Toledo Trust Co., 144 Ohio St. 195, 58
N.E.2d. 381, 396.” (Emphasis added).
Q5. Does 26 USC § 7621 qualify as an ―expressly‖ granted authority to the Secretary to act in areas within the several states or does § 7621 at best present only an ―impliedly‖ granted authority (―the opposite of expressly‖)?
Q6. Does 26 USC § 7621 satisfy the following litmus tests of 4 USC § 72: 1. ―All offices‖ — the Secretary or just the President? 2. ―shall‖ — is this mandatory or can the Secretary ignore this law? 3. ―the District of Columbia, and not elsewhere‖ — is this a
restriction to the geographical area of the District of Columbia or not?
4. ―expressly‖ — does an implied grant of authority to the President
meet the ―expressly‖ criteria of 4 USC § 72?
Q7. If one cites Hughes v. United States, 953 F.2d 531, 542-43 (9th Cir. 1991) in response to inquiries regarding the jurisdictional authority of the Secretary in the several states, does the wording of 4 USC § 72 support the conclusion of the Hughes Court which claims that ―4 USC § 72 does not foreclose [restrict] the authority of the IRS [Secretary] outside the District of Columbia?‖ Is there anything in the English language that would support the conclusion of the Hughes Court? Especially when the IRS operates under the authority granted by Congress to the Secretary?

Q8. The only reason given by the Hughes Court for their rendition of 4 USC § 72
is that the President is authorized to establish internal revenue districts outside
Washington, D.C. Does this argument meet the 4 USC § 72 litmus test?
a. Is establishing internal revenue districts outside Washington, D.C. the same as ―expressly‖ establishing said districts within the several states; especially in light of 4 USC § 72 when it does not ―expressly‖ authorize where those districts are to be established.
b. 4 USC § 72 mandates that ALL offices be ―expressly‖ authorized by Congress to act within the several states. Does authorizing the office of President ―expressly‖ authorize the office of Secretary when the Secretary is not even mentioned in 26 USC § 7621?
c. Is the Hughes Court correct when it implies that 26 USC § 7621 ―expressly‖ extends the authority of the Secretary to the several states when § 7621 only authorizes the office of the President to act and not the office of the Secretary?
d. With few exceptions, it is the office of Secretary which is authorized by Congress to write all needful rules and regulations for the administration and enforcement of internal revenue laws (See 26 USC §§ 7801, 7805). Therefore, is it specifically the office of Secretary which must acquire ―express‖ permission from Congress to act within the several states pursuant to 4 USC § 72?
e. The term ―State‖ as used in 26 USC § 7621 includes ONLY ―the District of Columbia‖ (see 26 USC § 7701(a)(10)) (See Footnote7). Even if ―State‖ could be concluded to include the several states by implication only, does this definition ―expressly‖ extend the office of Secretary or does it allegedly extend the office of President and does it ―expressly‖ extend said authority to the several states when the several states are not ―expressly‖ mentioned in the definition of ―State‖ as used in § 7621 (see § 7701(a)(10))?
f. Has the President indeed established said internal revenue districts in the several states? Is there any evidence that the President established any other tax collection districts besides ―customs districts‖ within the several states? Can one present any Presidential Executive Order by which the President has established internal revenue districts within the several states?
g. If one argues that the Secretary has been given the authority to create internal revenue districts, can one present any evidence into the record to prove that the Secretary has created internal revenue districts within the several states pursuant to
4 USC § 72, 26 USC § 7621, Executive Order #10289 and/or 26 USC § 7803(b)(1) (1994) (re-codified as 26 USC § 7804(b)(1)?
h. If one cannot prove that either the President or the Secretary have established internal revenue districts within the several states, out of which non-existent internal revenue districts does the Secretary have the authority to administer and enforce internal revenue laws?
Q9. Explain the following in light of 4 USC § 72:
―It is well established principle of law that all federal legislation applies
only within the territorial jurisdiction of the United States unless a
contrary intent appears [see 4 USC § 72]‖ [Foley Brothers, Inc. v.
Filardo, 336 US 281 (1948)]
―The laws of Congress in respect to those matters do not extend into the territorial limits of the States, but have force only in the District of Columbia, and other places that are within the exclusive jurisdiction of the national government.‖ [Caha v. United States, 152 US 211](Emphasis
added).
―Official powers cannot be extended beyond the terms and necessary implications of the grant [by Congress]. If broader powers be desirable, they must be conferred by Congress.‖ Federal Trade Commission v. Raladam Co., 283 U.S. 643, 51 S.Ct. 587 (1931)(Emphasis added)
Q11. Does a Citizen have a right to see the law which ―expressly‖ extends the authority of the Secretary outside ―the District of Columbia‖ to the several states when he/she asks for said law or is it legally and morally right for the Secretary, several U.S. Attorneys and Courts to be completely silent in response to said questions?
Q12. When the federal and/or state governments and their agents refuse to show one law that satisfies the mandate of 4 USC § 72, is it a crime for one to be forced to speculate that no law exists, that Congress has not ―expressly‖ extended the authority of the Secretary to the several states and that there is no duty for one to file a return or pay any particular alleged tax allegedly made so by laws which have not been ―expressly‖ extended to the several states?

Q13. Why does the government refuse to show the law and choose instead to ask the Court for a protective order so they don’t have to reveal the truth about the authority of the Secretary within the several states? 3Wouldn’t it be easier to just show the law?
Q14. Is it reasonable for one to continue to act upon their understanding of the law until it is dispelled with open discussion and responsive answers from officers of the United States (i.e., the DOJ, the Secretary and the IRS) with logical application of the law to the contrary?
Q15. How can one avoid prosecution in the future if one believes the conclusions of law which the government cannot disprove?
If the issues raised herein are incorrect with regard to the operation of the law as briefed, the government would have a brief proving said errors and they would not require a protective order to conceal the fact that the Secretary is not “expressly” authorized by Congress to act within the several states. Until there is open discussion and responsive answers from officers of the United States (i.e., Federal Agents or Attorneys) with logical application of the law to the contrary, one cannot do anything other than continue to act upon their understanding of the law as briefed and order one’s life with the understanding that there is no law by which Congress has “expressly” extended the authority of the Secretary, the Commissioner and the IRS to the several states pursuant to 4 USC § 72.
________________________________________
13 In fact, in the case of Walden v. U.S., #A-05-CA-444-LY, U.S. District Court, Austin, TX, the government asked for a protective order so they did not have to answer the questions relative to 4 USC § 72. Moreover, Walden and others have filed a criminal complaint with over 80 members of Congress regarding said protective order and other issues, including, but not limited to, 4 USC § 72.
Conclusion and remedy sought
Whereas this Court is charged with the knowledge that the U.S. Attorney who likely lacks authority to appear in these proceedings for failure to comply with 5 U.S C. §§ 3331 & 2906 and the Court not having proper venue jurisdiction pursuant to 4 U.S.C. § 72, has failed to establish that ―UNITED STATES OF AMERICA‖ has standing to file this instant complaint, this Court has a non-discretionary duty to quash the so-called indictment, dismiss this instant complaint for lack of venue jurisdiction over the putative subject matter of this complaint, and exonerate any and all bonds encumbering Ronald Ottaviano, et al.

Prepared and submitted on this 11th day of January 2011
By: _\S\_Ronald Ottaviano_________
Ronald Ottaviano, pro se

Case 2:10-cr-00485-WJM Document 100 Filed 01/31/11 Page 23 of 23 PageID: 878
"The risk in becoming very intimate with a moldie Parvati is that she may unexpectedly become a Kali and take your head."--Rudy Rucker, Freeware
* * *
“Most men would kill the truth if truth would kill their religion.”--Lemuel K. Washburn.
Nikki

Re: Ronald Ottaviano's going it pro se....

Post by Nikki »

Ignoring the blatant waste of paper and electrons, the motion fails at #2.

Although the citation to 4USC72 is correct, the interpretation is laughable.

Somehow the sovereignoramus makes the epic mental leap from a law defining where the offices of the government shall be (and from where they exercise their authority) to a limitation of their jurisdiction .

Game, set, and match against Ottaviano

Now, he mentions the assistance of an attorney -- Calabro. Is the use of the name just pro forma, or is this another attorney wangling for sanctions?
LPC
Trusted Keeper of the All True FAQ
Posts: 5233
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Location: Earth

Re: Ronald Ottaviano's going it pro se....

Post by LPC »

Nikki wrote:Ignoring the blatant waste of paper and electrons, the motion fails at #2.
I agree, and any judge with any sense and experience will realize that the whole thing is a waste of time right there.

But will the judge keep reading? Does the judge have to allow for the possibility that the nutjob might have *accidentally* put something in the brief that is both accurate and relevant?

I suspect that the conscientious judges do keep reading, and I feel sorry for them.
Dan Evans
Foreman of the Unified Citizens' Grand Jury for Pennsylvania
(And author of the Tax Protester FAQ: evans-legal.com/dan/tpfaq.html)
"Nothing is more terrible than ignorance in action." Johann Wolfgang von Goethe.
Nikki

Re: Ronald Ottaviano's going it pro se....

Post by Nikki »

Unfortunately -- to avoid the slimmest grounds for reversal or remand on appeal -- the Judge will be required to address and refute every one of the inane arguments.

His clerks will be busy.
Parvati
Demigoddess of Volatile Benevolence
Posts: 239
Joined: Thu Jan 28, 2010 3:21 am
Location: USA

Ottaviano now accusing DoJ of prosecutorial misconduct.

Post by Parvati »

Ottaviano's latest filing is: "Defendant’s response to Government’s response to Defendants two Motions pursuant to Brady v. Maryland, and prosecutorial Misconduct."

It smells like the consulting attorney may've had a hand in this, here and there, but Ottaviano still claims the whole thing is a vendetta against him, and "trial by ambush." It sounds less batshit than the previous motions, but is just as poorly constructed, given the inconsistent formatting, changes in font and font color, alignment and kerning, which I am not going to try to duplicate here, although I'll fill in the basics to make it a bit easier to read. (If I received a student paper with random font and style changes like this, I'd be inclined to assume that the student had done a cut-and-paste job using material he'd found online.)

Looks like he's relying heavily on Brady v. MD, which may or may not be appropriate. (Of course, his interpretations tend to be self-serving to the point of distortion, so his approach might be so far off-base that they have bypassed the stands, left the arena entirely and now reside in the deserted outskirts of the stadium parking lot.)

The section headed "PRIOR UTILIZATION OF AND TESTIMONY BY INFORMANT" appears twice. This is exactly as it appears in the original document, and not a cut-and-paste error on my part.
Re: United States v. Ronald Ottaviano, et la, Crim. No. 10-485

Defendant’s response to Government’s response to Defendants two Motions pursuant to Brady v. Maryland, and prosecutorial Misconduct.

Dear Judge Martini:

I. Prosecutorial Misconduct

I will first visit the issue of prosecutorial misconduct in that Mr. Vartan charges in the first indictment that I told clients or prospective clients that with the Pure Trust they would not have to pay taxes, yet all the testimony in his investigations by witnesses testify that I never said that, when a recording by his own undercover agent when asking me that question I never stated that, when he has a copy of my DVD stating to an audience that “any funds you receive from the trust you must file a return and pay the taxes” when Mr.Vartan tells the Grand Jury something of this nature the Jurors believe he has evidence to the alleged facts he is reciting and therefore he has mislead the Grand Jury.

In addition, Mr. Vartan at three separate bail hearings argued that I was a flight risk and that if the Court released me I would flee. At the same time Mr. Vartan possessed a letter from my Attorney Frank Rubino stating that I guaranteed my surrender upon an indictment and that I wanted to go to trial, Mr. Vartan never disclosed that letter to the court which is exculpatory and I believe that even though the hearings were not a trial that this was a clear “BRADY” violation.

Mr. Vartan also denied my right to appear before the Grand Jury and testify as he did a codefendant one “Wilson Rodrigo Calle” he may state that at the time Mr. Calle was not a defendant, but in the beginning of his questioning in front of the Jury he told Mr. Calle that he was a target of the investigation and denied me my right to call witnesses of my own, cross examine the government’s witnesses, exhibit evidence to my innocence and challenge the array of the Grand Jury. Therefore the Grand Jury that Mr.Vartan convened under the law was a “Special Grand Jury” without indictment powers.

Mr. Vartan states that it is the Court that kept me in jail and not he or the government. To the contrary, while the court denied my bail it was based on the misleading arguments and hidden evidence of Mr.Vartan that caused that decision. Therefore Mr. Vartan mislead you your Honor when he stated furiously that I was a flight risk while all the time he had evidence to the contrary and therefore brought fraud upon this Honorable Court.

II Discovery

Mr. Vartan has provided witness testimony from his investigations and testimony of witnesses before the Grand Jury, much of the testimony is blacked out and especially on Susan McDermott’s testimony all is blacked out except one sentence. The defense believes that much of the hidden testimony is impeachable testimony and there is no way the defense can prepare for cross examination if they cannot see this testimony before trial, this amounts to trial by ambush.

In Brady it was said that exculpatory evidence and impeachable evidence are one in the same and must be turned over.

A. WHAT IS REQUIRED UNDER BRADY

Prosecutors are required to disclose to the defense evidence favorable to a defendant which is either exculpatory or impeaching and is material to either guilt or punishment. Evidence is "favorable" to the defendant if it either helps the defendant or hurts the prosecution. (In re Sassounian (1995) 9 Cal.4th 535, 543-544.) In Strickler v. Greene (1999) 527 U.S. 203, 280-281, the United States Supreme Court stated:

In Brady this Court held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, supra, 373 U.S. at 87. We have since held that the duty to disclose such evidence is applicable even though there has been no request by the accused, [United States v. Agurs (1976) 427 U.S. 97, 107], and that the duty encompasses impeachment evidence as well as exculpatory evidence, [United States v. Bagley, (1985) 473 U.S. 667, 676]. Such evidence is material "if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id at 682; see also [Kyles v. Whitley (1995) 514 U.S. 419, 433-434].

In order to ensure compliance with these rules, the United States Supreme Court on more than one occasion has urged the "careful prosecutor" to err on the side of disclosure. (Kyles v. Whitley, supra, 514 U.S. 419, 440; United States. v. Agurs, supra, 427 U.S. 97, 110.)
It is not the prosecutor's job to convict defendants; the prosecutor has an obligation to pursue the truth and further the interests of justice. Therefore, as set forth in Brady v. Maryland, 373 U.S. 83 (1963), the government has an obligation to provide the defense with any evidence it finds that tends to establish the innocence of the accused.

In addition to evidence that tends to establish the innocence of the accused, the government has an affirmative obligation to provide the defense with evidence that tends to undermine the credibility of their witnesses as set forth in Giglio v. United States, 405 U.S. 150 (1972). This is referred to as impeachment evidence.

In United States v. Bagley, 473 U.S. 667 (1985), the Supreme Court held that for Brady purposes, there is no difference between exculpatory evidence and impeachment evidence. Supreme Court Justice Harry Blackmun specifically stated:

"the Court of Appeals treated impeachment evidence as constitutionally different from exculpatory evidence . . . This Court has rejected any such distinction between impeachment evidence and exculpatory evidence." Id. at 676.

In addition to requesting exculpatory evidence and information that might adversely impact upon the credibility of any potential witnesses, the Defense is entitled to any information that could adversely impact upon the credibility of the law enforcement officers involved.
In U.S. v. Henthorn, 931 F.2d 29, the Ninth Circuit held that the government has a duty to make a pretrial examination of the personnel files of testifying law enforcement officers for Brady material. Although they subsequently held (in Jennings) that an Assistant U.S. Attorney (AUSA) could not be ordered by a district judge to conduct that examination personally, the subsequent decision in Kyles v. Whitley, 115 S.Ct. 1555 (1995):
"places squarely on the individual prosecutor the duty of personally becoming aware of Brady material in the possession of the government."
This position was further enforced in United States v. Alvarez, 86 F3d 901, 904 (9th Cir. 1996) where the Ninth Circuit reiterated that federal prosecutors have an affirmative responsibility to personally seek out Brady material rather than delegating responsibility for the search to investigators.

In other words, the Office of the United States Attorney has an affirmative responsibility to ferret out exculpatory evidence, impeachment material and derogatory information that may exist in the personnel files of the government agents involved.

Defendant,*, through counsel and pursuant to the dictates of Kyles v. Whitley, 115 S.Ct. 1555 (1995), Brady v. Maryland, 373 U.S. 83 (1963), United States v. Agurs,427 U.S. 97 (1976), United States v. Bagley, 473 U.S. 667 (1985), and Fed. R. Crim. P. 16, respectfully moves for an entry of an order requiring the government to disclose and provide the following specific information and material known or that with the exercise of due diligence should be known to the government. This information is favorable to the Defendant on the issues of guilt or punishment, including impeachment information and other material and evidence tending to discredit the government's witnesses, in addition to any other matters known to the government that may be exculpatory or otherwise favorable to the defendant.
The following documents and information regarding the cooperating witness(s) in this case are requested:

A. The name and address of each cooperating witness;
B. The case number and name of the prosecutions in which the cooperating witness utilized in this case has previously been utilized as a cooperating witness;
C. The case names and numbers of any trials or evidentiary hearings at which the cooperating witness has testified concerning his own prior criminal activity, payments or rewards provided him by the government, efforts made to induce others to participate in criminal activity, or other purported law enforcement-related matters;
D. Any ledger, sheet, or other document which details the sums paid or benefits provided to the cooperating witness or his family in this and other cases in which the informant assisted the government and the purpose of each such payment;
E. Any information, whether or not memorialized in a memorandum, agent's report or other writing, regarding promises of immunity, leniency, preferential treatment or other inducements made to the cooperating witness or any family member, friend or associate of the informant in exchange for the informant's cooperation, including the dismissal or reduction of charges, assisting in matters of sentencing or deportation, promises or expectancies regarding payments for expenses or testimony or eligibility for any award or reward; In addition to information regarding payments, promises of immunity, leniency, preferential treatment or other inducements made to the government witnesses, any records or information regarding payments, promises of immunity, leniency, preferential treatment offered or afforded to any family member, friend or associate of any prospective witness in exchange for said witness cooperation.
F. Any information or records concerning any actual or implied threats of investigation or prosecution (including deportation, exclusion, etc., by INS) made by the government to any prospective government witness or family member or associate of the witness, including information as to the underlying conduct precipitating such investigations.
G. Any statement made, information or document provided by a prospective government witness that conflicts in part or in whole with: (1) the statement of another prospective witness, (2) a prior statement made by the same government witness with regard to the subject matter of the expected trial testimony of witness, or (3) any other document or witness.
H. The name and current whereabouts of any witness to the underlying events of this case whom the government does not anticipate calling as a witness at trial and a copy of any statement made by or summary of an interview with such a witness.
I. Any report, document or information which details the criminal activities of the cooperating witness which were undertaken by him without the authority or approval of the government, but for which the government has elected, formally or informally, not to prosecute;
J. FBI rap sheet, NCIC printout, NADDIS, EPIC, NLETS, ATS, TECS, and any other records available to the government reflecting the arrest, conviction and investigative history of the cooperating witness;
K. Information concerning prior misconduct by the cooperating witness in the performance of his role as an informant including: any prior refusal of the informant to testify for or assist the government; any prior allegation that the informant entrapped another person to commit an offense or made false statements in connection with a criminal investigation; and any prior "blackballing" of the informant by any law enforcement agency;
L. Information concerning misconduct by the cooperating witness other than in his role as an cooperating witness, including misconduct that reflects a lack of candor, truthfulness or law-abiding character of the informant, such as uncharged criminal conduct or fraud;
M. All information, records and transcripts which in any way indicate or reveal that any prospective government witness, in connection with this or any other case, has provided untruthful, false, misleading, incomplete, or inaccurate information or testimony to:
1. Any state or federal law enforcement officer or agency,
2. Any state or federal grant jury,
3. Any state or federal trial court while testifying at trial and/or any related or preliminary proceeding;
N. Information reflecting the nature and extend of assets obtained by the informant in connection with his illegal activities over the past ten years;
O. Any "records" maintained by law enforcement agencies relating to the cooperating witness utilized in this case, including records that the witness was:
1. Given a code name,
2. Given assumed/false identify,
3. Reasons for cooperation,
4. Given a polygraph examination,
5. Briefed on entrapment,
6. Contracts executed with any law enforcement agency,
7. Any release forms executed by the witness,
8. Records revealing the witness was advised to pay Federal Income Taxes,
9. Records that he could not violate the law,
10. Records which require him to protect his false identity,
11. Records that the witness cannot use any illegal drugs,
12. Records that the witness consented to recording any conversation with any party;
P. If given a polygraph exam, the results of any polygraph examination performed on any potential government witness as well as any information concerning the failure of any potential government witness to submit to a polygraph examination;
Q. Any government agency files or other information revealing matters relevant to the cooperating witness' credibility, mental or physical health, narcotic or alcohol use, or any other dependency;
R. All information and records revealing any potential impairment of the capacity of any prospective government witness to observe, recollect and testify about the events giving rise to the charges filed in this case including impairments or sight, hearing, memory, language, or any other physical or psychological disability;
S. All information and records indicating that any prospective government witness (1) may have suffered from any mental or emotional disease, disorder, illness, or defect at any time during the time span alleged in the indictment filed in this case, or (2) sought or received treatment for any such mental or emotional disease, disorder, illness or defect at any time within the past five years;
T. All information and records indicating that the prospective government witness (1) may have used cocaine, marijuana, another controlled substance, used alcohol to excess at any time during the time span alleged in the indictment filed in this case, or (2) sought to received treatment for any substance abuse problem (including alcohol) at any time within the past five (5) years;
U. Applicable records of the United States Probation department if the witness has been placed on probation or a Pre-Sentence Investigation "PSI" has been conducted.

MEMORANDUM OF LAW

"[T]he use of informants to investigate and prosecute persons is fraught with peril." .... "By definition, criminal informants are cut from untrustworthy cloth and must be managed and carefully watched by the government and the courts to prevent them from falsely accusing the innocent, from manufacturing evidence against those under suspicion of crime, and from lying under oath in the courtroom."

United States v. Bernal-Obeso, 989 F.2d 331 (9th Cir. 1993).

Evidence which is material either to the guilt or punishment of the defendant must be disclosed to the defense in a timely manner. Brady v. Maryland, 373 U.S. 83, 87 (1963). Evidence that will "play a role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal" must be provided by the government. Unites States v. Lloyd, 992 F.2d, 348, 351 (D.C.Cir. 1993). See also United States v. Bagley, 473 U.S. 667 (1985).

"Taken together, this group of constitutional privileges delivers exculpatory evidence into the hand of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of the criminal justice system." California v. Trombetta, 467 U.S. 479, 485 (1984). If this material evidence exists in the hands of the government or an agent of the State, the failure to disclose this evidence is a violation of the precepts of Brady v. Maryland, supra; see also, Kyles v. Whitney, 115 S.Ct. 155, 157 (1995). "In fact, an individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." Id.

PRIOR UTILIZATION OF AND TESTIMONY BY INFORMANT

Information regarding the prior utilization of the witness is material and favorable within the terms of Brady v. Maryland, 373 U.S. 83 (1963), where it reveals the informant's modus operandi in setting up criminal transactions and in inducing other persons to participate in criminal activity. Johnson v. Brewer, 521 F.2d 556, 563 (8th Cir. 1975).

Experience has shown that where an informant utilizes undue persuasion in one case to induce an individual to participate in a criminal offense, he is likely to use the same tactic in other cases. United States v. McClure, 546 F.2d 670, 673 (5th Cir. 1977). In McClure, the conviction was reversed and remanded due to the trial court's exclusion of "Fed. R. Evid. 404(b) evidence of a systematic campaign" by the informant to induce other persons to engage in illegal activity. Id., 546 F.2d at 672, 673. "n the case before us it was the defendant who sought to introduce evidence of the informant's scheme. His right to present a vigorous defense required the admission of the proferred testimony. Id.

Evidence of the informant's offering the defendant an inducement to commit any offense or to effect the defendant's predisposition is evidence that directly substantiates an entrapment defense. United States v. Suarez, 939 F.2d 929, 932 (11th Cir. 1991). The Supreme Court, in Matthews v. United States, 485 U.S. 58 (1988) and more recently in Jacobson v. United States, 503 U.S. 540, 550 (1992), reaffirmed the traditional entrapment defense and held that the defendant may proceed with such a defense exclusively or in the alternative.

Such evidence is also discoverable, pursuant to Giglio v. United States, 405 U.S. 150 (1972) and United States v. Bagley, 473 U.S. 667 (1985), to aid in the impeachment of a witness. Similarly, the prior testimony of the informant on themes material to his service as an informant should be disclosed where the defense proposes to examine the informant as to those themes at trial. John v. Brewer, 521 F.2d at 563. In Unites States v. Cohen, 888 F.2d 770, 776-777 (11th Cir. 1989)., the Eleventh Circuit recognized the importance of such evidence, reversing the conviction where the trial court had excluded evidence offered under Fed. R. Evid. 404(b) that the primary informant had previously concocted and managed a fraudulent scheme.

In Mesarosh v. United States, 352 U.S. 1 (1956), the Supreme Court reversed the defendant's conviction and remanded for a new trial to allow the defendant to present previously undisclosed evidence that the government's key witness testified falsely in similar, but unrelated proceedings. The Eleventh Circuit reaffirmed the vitality of the Mesarosh decision in United States v. Espinosa-Hernandez, 918 F.2d 911, 914 (11th Cir. 1990), holding that the government may not withhold evidence that a witness has made prior false statements in a matter within the jurisdiction of a federal agency. Cr. United States v. Williams, 500 F.2d 105, 108 (9th Cir. 1974) (granting a new trial under Mesarosh to allow defendant to present to the jury evidence of a witness' previous false statements in other proceedings).

PRIOR UTILIZATION OF AND TESTIMONY BY INFORMANT

Information regarding the prior utilization of the witness is material and favorable within the terms of Brady v. Maryland, 373 U.S. 83 (1963), where it reveals the informant's modus operandi in setting up criminal transactions and in inducing other persons to participate in criminal activity. Johnson v. Brewer, 521 F.2d 556, 563 (8th Cir. 1975).

Experience has shown that where an informant utilizes undue persuasion in one case to induce an individual to participate in a criminal offense, he is likely to use the same tactic in other cases. United States v. McClure, 546 F.2d 670, 673 (5th Cir. 1977). In McClure, the conviction was reversed and remanded due to the trial court's exclusion of "Fed. R. Evid. 404(b) evidence of a systematic campaign" by the informant to induce other persons to engage in illegal activity. Id., 546 F.2d at 672, 673. "{I}n the case before us it was the defendant who sought to introduce evidence of the informant's scheme. His right to present a vigorous defense required the admission of the proferred testimony. Id.
Evidence of the informant's offering the defendant an inducement to commit any offense or to effect the defendant's predisposition is evidence that directly substantiates an entrapment defense. United States v. Suarez, 939 F.2d 929, 932 (11th Cir. 1991). The Supreme Court, in Matthews v. United States, 485 U.S. 58 (1988) and more recently in Jacobson v. United States, 503 U.S. 540, 550 (1992), reaffirmed the traditional entrapment defense and held that the defendant may proceed with such a defense exclusively or in the alternative.
Such evidence is also discoverable, pursuant to Giglio v. United States, 405 U.S. 150 (1972) and United States v. Bagley, 473 U.S. 667 (1985), to aid in the impeachment of a witness. Similarly, the prior testimony of the informant on themes material to his service as an informant should be disclosed where the defense proposes to examine the informant as to those themes at trial. John v. Brewer, 521 F.2d at 563. In Unites States v. Cohen, 888 F.2d 770, 776-777 (11th Cir. 1989)., the Eleventh Circuit recognized the importance of such evidence, reversing the conviction where the trial court had excluded evidence offered under Fed. R. Evid. 404(b) that the primary informant had previously concocted and managed a fraudulent scheme.
In Mesarosh v. United States, 352 U.S. 1 (1956), the Supreme Court reversed the defendant's conviction and remanded for a new trial to allow the defendant to present previously undisclosed evidence that the government's key witness testified falsely in similar, but unrelated proceedings. The Eleventh Circuit reaffirmed the vitality of the Mesarosh decision in United States v. Espinosa-Hernandez, 918 F.2d 911, 914 (11th Cir. 1990), holding that the government may not withhold evidence that a witness has made prior false statements in a matter within the jurisdiction of a federal agency. Cr. United States v. Williams, 500 F.2d 105, 108 (9th Cir. 1974) (granting a new trial under Mesarosh to allow defendant to present to the jury evidence of a witness' previous false statements in other proceedings).

PREFERENTIAL TREATMENT GIVEN AND THREATS
MADE TO INFORMANT, INCLUDING MONIES PAID
AND PROMISES OF FINANCIAL AWARD


The Standing Discovery Order, paragraph D, compels disclosure of the "existence and substance of any payments, promises of immunity, leniency, preferential treatment, or other inducements made to prospective government witnesses." By his request, the defendant seeks a full record of all considerations given to the informant and his family as a result of his cooperation in this case as well as any other case in which the informant has provided services.

Such detailed information and records are needed to demonstrate the motive of the witness and are discoverable. Giglio v. United States, 405 U.S. 150 (1992); United States v. Williams, 954 F.2d 668 (11th Cir. 1992).

The witness' motive to testify in favor of one party and against another is a matter open to discovery and introduction into evidence. Fed. R. Evid. 608. The Eleventh Circuit Pattern Criminal Jury Instructions, Special Instructions 1.1, 1.2 and 1.3, highlight the importance of such evidence in judging the credibility of the informant or witness.

For example, a paid informer, or a witness who has been promised he will not be charged or prosecuted, or a witness who hopes to gain more favorable treatment in his own case, may have a reason to make a false statement because he wants to strike a good bargain with the government.

Eleventh Circuit Pattern Criminal Jury Instructions, Special Instruction 1.1.

Evidence that the government has threatened a potential witness to obtain the witness' cooperation, is admissible, and may demonstrate unconstitutional interference with the defendant's right to free access to witnesses. United States v. Hendricksen, 564 F.2d 197, 198 (5th Cir. 1977); United States v. Heller, 830 F.2d 150, 154 (11th Cir. 1987).

The Defendant further seeks information as to threats or promises made to the witness or his family to motivate his cooperation. The threats/benefits evaluation is not limited to the informant alone. United States v. Partin, 493 F.2d 750, 757 (5th Cir. 1974). Such Giglio material is discoverable to allow defense counsel to establish possible bias or hostility of the informant. It is proper impeachment to question a cooperating witness about the dismissal of charges against his or other preferential treatment given t his family. United States v. Nickerson, 669 F.2d 1016, 1018 (5th Cir. 1982).

Similarly, unconsummated promises of financial or other awards or benefits are discoverable as to the informant. Thus, where the informant harbors an expectation of a future financial award of his services in obtaining a conviction, such evidence is crucially important to the defense. United States v. Williams, 954 F.2d 668, 672 (11th Cir. 1992). Defendant seeks disclosure of any promise, formal or informal, that would lead the informant to have an expectation of an award in the instant case. (1)

CONFLICTING WITNESS STATEMENTS

The conflicting statement of a witness must be turned over to the Defendant. Kyles v. Whitley, 115 S.Ct. 1155 (1995). In Schneider v. Estelle, 552 F.2d 593, 595 (5th Cir. 1977), the court held that the government's failure to disclose an eyewitness' prior statement that was inconsistent with the testimony of the government's key trial witness was reversible error. Also, in United States v. Martino, 648 F.2d 367, 384 (5th Cir. 1981), the court stated:

As impeaching evidence, the prior inconsistent statement would fall within disclosure requirements because Brady encompasses impeachment evidence as well as evidence favorable to the accused on the issue of guilt.

Additionally, the court in Jones v. Jago, 575 F.2d 1164, 1166 (6th Cir. 1978), cert. denied 439 U.S. 883 (1978), found that an eyewitness' statement to the government, while not expressly exonerating the defendant, and made no reference to the defendant's presence or participation in the offense, was Brady material and that the failure to disclose such a statement required the reversal of the conviction. Id. At 1164. This type of Brady material, though negative or neutral in character, may be the key to a favorable defense.

This court has held that a report of a witness interview that reveals circumstantial evidence that a person other than the defendant may have been the actual perpetrator of the offense is Brady material. Troedel v. Wainwright, 667 F.Supp. 1456 (S.D.Fla. 1986).

Even though such a defense-favorable or neutral statement may otherwise be protected from disclosure under the Jencks Act, the government is under a due process obligation to disclose the information to the defense before trial and in a timely manner. United States v. Campagnulo, 592 F.2d 852, 859 (5th Cir. 1979).

INFORMANT'S ARREST AND CONVICTION RECORD,
UNAUTHORIZED CRIMINAL ACTIVITY AND OTHER MISCONDUCT


An informant's history or criminal activity and other misconduct is relevant to the consideration of his credibility, bias, motive and modus operandi. It is part of the defense in this case that the informant improperly created a crime and lured the defendant into the alleged criminal activity. This case raises both the issue of entrapment and the defense of government overreaching. The question of who initiated the criminal activity and whether the defendant was misled are primary issues for the defendant.

The informant's history and pattern of criminal activity and misconduct serve to illustrate the methods normally employed by the informant to achieve his goals. Such evidence "might easily extend beyond that of mere impeachment." United States v. Espinosa-Hernandez, 918 F.2d 911, 914 (11th Cir. 1990). In Espinosa-Hernandez, the Eleventh Circuit reversed the district court's failure to grant full discovery as to an undercover agent's misconduct relating to the handling of informants. 918 F.2d at 914; Cf. Haber v. Wainwright, 756 F.2d 1520, 1523 (11th Cir. 1985) (prior criminal conduct relevant where witness may have been promised immunity).

Along the same line, the courts have held evidence of the unreliability of an informant witness to be discoverable and highly relevant information. For example, information regarding prior or contemporaneous perjury or bizarre testimony of an informant would be discoverable. United States v. Mesarosh, 352 U.S.1 (1956).

U.S. PROBATION RECORDS

The defendant has a due process right, to material contained in the files of the U.S. Probation Office if that material bears on the credibility of a significant witness. United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir. 1988), cert. denied, 489 U.S. 1032 (1989).

ASSETS OBTAINED BY AN INFORMANT
THROUGH CRIMINAL ACTIVITY


The discovery of any and all assets obtained by the witness through criminal activity is sought as verification of the extent of the informant's prior criminal activity and his motive to protect such assets from forfeiture and taxes. Further, it is submitted that this witness may have committed perjury by failing to report income from criminal activity in his prior income tax returns. Such perjury is relevant in the consideration of any evidence presented by the informant. United States v. Shearer, 794 F.2d 1545, 1551 (11th Cir. 1986), Seventh Circuit Pattern Criminal Instructions, 3.21 (modified).

REVIEW OF GOVERNMENT AGENT(S) AND
LAW ENFORCEMENT PERSONNEL FILES


The Government has a duty to examine the personnel files of all Federal agents and the files of any local, state or municipal law enforcement officer who will testify and must disclose information favorable to the defense for impeachment purposes. United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991) citing United States v. Cadet, 727 F.2d 1453 (9th Cir. 1984). "In the event that the Government is uncertain about the materiality of information in it's possession, it may submit the information to the trial Court for an in camera inspection and evaluation..." Id. at 1467-68. The Government has a duty to examine the personnel files upon a defendant's request for production. See id. at 1467. Absent such an examination, it cannot ordinarily determine whether it is obligated to turn over the files. Henthorn, at 31.

Additionally, in United States v. Deutsch, 475, F.2d 55, 58 (5th Cir. 1973), the court compelled disclosure of a postal employee's personnel file where these records revealed the government witness, may have had disciplinary problems. Similarly, in United States v. Garrett, 542 F.2d 23, 26 (6th Cir. 1976), the court reversed the defendant's conviction where the district court foreclosed discovery and cross-examination as to the personnel records of the law enforcement officer. This government witness acted in an undercover capacity. His disciplinary records evidenced suspected use of narcotics and failure to submit to a urinalysis. This court noted that such evidence was relevant because the undercover agent "might well have looked upon a successful prosecution of [the defendant] as a means of having his [own] suspension [from duty] lifted." Id.

IMPAIRMENT OF WITNESS BY PHYSICAL DISABILITY,
MENTAL DISABILITY OR SUBSTANCE ABUSE
PSYCHIATRIC TREATMENT


The Fifth Circuit, in United States v. Partin, 493 F.2d 750, 762 (5th Cir. 1974), 434 U.S. 903 (1977), explained why a witness' psychological history must be disclosed:

It is just as reasonable that a jury be informed of a witness mental incapacity at a time about which he proposes to testify as it would be for the jury to know that he then suffered an impairment of sight or hearing. It all goes to the ability to comprehend, know and correctly relate the truth.

Particularly relevant is evidence that a witness is undergoing psychiatric treatment. Id.

at 116. See United States v. Lindstrom, 698 F.2d 1154 (11th Cir. 1983), ("Denial of defendants' access to psychiatric materials is alone sufficient to constitute reversible error".) United States v. Collins, 472 F.2d 1017 (5th Cir. 1972); United States v. Fowler, 465 F.2d 664 (D.C. Cir. 1972).

POLYGRAPH RESULTS

The Eleventh Circuit in United States v. Piccinonna, 885 F.2d 1529, 1536 (11th Cir. 1989), recognized that polygraph examination results are admissible to impeach or bolster a witness' credibility. See Fed. R. Evid. 403, 608(b). Thus, polygraph results which tend to show that a witness has made false or conflicting statements to the government are relevant and discoverable. Id. United States v. Posada, 57 F.3d 428 (5th Cir. 1995). While admissibility issues may be resolved at trial, the underlying discovery material must be disclosed prior to trial to allow for adequate defense preparation. Giglio v. United States, 405 U.S. 150 (1972).

CREDIBILItY OF CO-CONSPIRATOR STATEMENTS

As to Fed. R. Crim. P. 12(d)(2), the government may be ordered to disclose specific items of evidence on which it intends to rely at trial. Disclosure of a co-conspirator's statements intended to be offered under Fed. R. Evid. 801(d)(2)(E) was ordered in United States v. Thevis, 84 F.R.D. 47, 56-57 (N.D. Ga. 1979) to allow the defense an opportunity to effectively meet and cross-examine such hearsay declarations. Evidence relating to the credibility of such statements should also be produced. In United States v. Enright, 579 F.2d 980, 989 (6th Cir. 1978), the court held that "retraction of a previously incriminating and inculpatory statement [which statement was offered at trial by the government under the co-conspirator exception to the hearsay rule] must indeed qualify as material and favorable to the defense."

In United States v. Christopher, 923 F.2d 1545, 1550-52 (11th Cir. 1991) and United States v. Allison, 908 F.2d 1531, 1533 (11th Cir. 1990), the Eleventh Circuit reiterated that the admissibility and weight to be given to a co-conspirator's hearsay statements are subject to challenge including; the true identity of the speaker, whether the speaker was a co-conspirator at the time the statement was made, whether the statement was made in furtherance of the conspiracy, and whether there are any indicia of reliability of the statement. Fed. R. Evid. 806 provides that a party may attack the credibility of the declarant of a statement offered under Fed. R. Evid. 801(d)(2)(E) "by any evidence which would be admissible for those purposes if the declarant had testified as a witness."

Thus, under Giglio, the government's duty to disclose "favorable" impeachment material extends to impeachment of the declarant when statements are offered pursuant to Fed. R. Evid. 801(d)(2)(E), 405 U.S. 150. Impeachment can only be prepared if the defendant is at least made aware of the identify of the declarant and the content of the statement. Cf. Thevis, 84 F.R.D. at 56; See also United States v. Kubiak, 704 F.2d 1545, 1549-1551 (11th Cir. 1983) (indicated co-conspirator's exculpatory statement in Brady material).

WITNESS' RECORD OF ARRESTS AND MISCONDUCT


Pursuant to Fed. R. Evid. 608(b) a witness may be cross-examined as to specific instances of conduct "concerning the witness' character for truthfulness or untruthfulness." Thus, some courts have held that in certain circumstances a witness may be questioned regarding prior arrests which have not led to a conviction. United States v. Croucher, 532 F.2d 1042, 1045 (5th Cir. 1976) (informant witness' full arrest record was relevant to demonstrate a possible motive to strike a good bargain with the government).

Similarly, uncharged misconduct of a witness is fair game for impeachment on cross-examination. United States v. Ray, 731 F.2d 1361, 1364-65 (9th Cir. 1984) (reversible error to refuse to permit cross-examination of a government witness as to alleged post-plea drug activities); United States v. Espinosa-Hernandez, 918 F.2d 911, 914 (11th Cir. 1990) (government witness' misconduct bears directly on credibility); United States v. Cohen, 888 F.2d 770, 776-777 (11th Cir. 1989) (conviction reversed where trial court excluded evidence offered under Fed. R. Evid. 404(b) that prosecution witness had previously concocted and managed a fraudulent scheme); United States v. McClure, 546 F.2d 670, 673 (5th Cir. 1977) (conviction reversed where trial court excluded evidence offered under Fed. R. Evid. 404(b) to show that informant had previously entrapped other defendants).

CONCLUSION

WHEREFORE, Defendant moves this Court for entry of an order requiring the Government to produce the described specific information and materials.

III Speedy Trial Motion

Defendant was arraigned before Your Honor on July 27, 2010 the Speedy trial act mandated a trial before October 5, 2010 barring a tolling event. Vartan states that a ends of justice continuance was filed by my court appointed counsel Michael Calabro, I was never informed of this and it was done without my signature which is required and it was done after I objected in court on the record to a continuance and made it known on the record that day that Mr. Calabro was fired and I would proceed pro se.
I made no pre-trial motions nor did I enter any continuances and no tolling event occurred prior to October 5, 2010.
This case against this defendant to date is so wrought with prosecutorial misconduct, violation of Brady and Giglio, violation of my right to speedy trial rights, defective search warrant, defective Grand Jury proceeding, hiding of the original affidavit of probable cause that this case against this defendant already has more appealable issues than would be expected.

WHEREFORE, defendant prays this Honorable court to dismiss the Grand Jury indictment and all charges related against defendant.

Submitted this 28th day of January 2010
_\S\ Ronald OTTaviano__
Ronald Ottaviano, pro se
"The risk in becoming very intimate with a moldie Parvati is that she may unexpectedly become a Kali and take your head."--Rudy Rucker, Freeware
* * *
“Most men would kill the truth if truth would kill their religion.”--Lemuel K. Washburn.
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Re: Ronald Ottaviano's going it pro se....

Post by LPC »

Nikki wrote:Unfortunately -- to avoid the slimmest grounds for reversal or remand on appeal -- the Judge will be required to address and refute every one of the inane arguments.
I must be persnickety today, because this seems wrong in several respects.

My understanding is that judges grant or deny motions all the time without written opinions, and I don't know why this motion would merit an opinion (or even an explanation).

And this motion really raises only one issue, which is whether "this court lacks venue authority pursuant to 4 USC § 72." An opinion stating that "defendant is wrong about the meaning of 4 USC 72" should be sufficient without refuting each of his case citations and other arguments in support of his motion. That's why courts often conclude opinions by stating that things like "We have considered all of the arguments raised by the parties and, to the extent not discussed above, we conclude they are irrelevant, moot, or without merit."

For these reasons, an appellate court will know what the trial judge did read and did consider, based on any written opinions, but the appellate court won't know (and can't assume) from the lack of a specific opinion on a specific argument that the lower court did NOT read something. And what the lower court didn't read isn't really relevant. What the appeals court wants to know is (a) what issues were raised and (b) how did the lower court rule. If the ruling of the lower court was wrong, it's wrong regardless of what the judge read or didn't read, and if the ruling was right it's right regardless of what the judge read or didn't read.

The bottom line is that I don't think I've ever read an appellate opinion that questioned a lower court opinion because the judge didn't specifically address an argument in a written opinion. Opinions regularly question whether an issue was *raised* by the parties, because an issue that's not raised may be waived, but I don't think I've ever see a court suggest that a trial judge must specifically address every argument made with respect to every issue.
Dan Evans
Foreman of the Unified Citizens' Grand Jury for Pennsylvania
(And author of the Tax Protester FAQ: evans-legal.com/dan/tpfaq.html)
"Nothing is more terrible than ignorance in action." Johann Wolfgang von Goethe.
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Re: Ronald Ottaviano's going it pro se....

Post by Parvati »

LPC wrote:My understanding is that judges grant or deny motions all the time without written opinions, and I don't know why this motion would merit an opinion (or even an explanation).
This popped up on PACER the other day:
NOTICE OF HEARING ON ALL MOTIONS in case as to RONALD OTTAVIANO, MICHAEL BALICE, HARRIET FOSTER, WILSON CALLE, ANGEL DONE: Motions set for 2/4/2011 at 10:30 AM before Judge William J. Martini.
Ottaviano filed 3 or 4 motions. (I forget how many, now...) Based on what you said about judges granting/denying motions all the time without issuing written opinions, is the hearing the traditional time for the judge to issue his opinions, or would he usually choose to ignore frivolity all together?
"The risk in becoming very intimate with a moldie Parvati is that she may unexpectedly become a Kali and take your head."--Rudy Rucker, Freeware
* * *
“Most men would kill the truth if truth would kill their religion.”--Lemuel K. Washburn.
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Re: Ronald Ottaviano's going it pro se....

Post by LPC »

The statute relied on by Ottaviano is weird, and somewhat interesting. 4 USC § 72 says:
All offices attached to the seat of government shall be exercised in the District of Columbia, and not elsewhere, except as otherwise expressly provided by law.
Notice that it does not say "all offices" of the federal government must be in DC, but only the offices "attached to the seat of government."

But what does that mean?

I ran a search for the phrase, and turned up two relevant cases, one of which is David Myrland's bankruptcy case (Now a major motion picture: "When Threads Collide"):
ISSUE (A) IRS LACKS REQUISITE STATUTORY LEAVE TO OPERATE[5].

Debtor's implicit premise that, under 4 U.S.C. § 72, all IRS offices (or at least those who have taken action in this case or with respect to his federal tax liability) must be "attached to the seat of government" and therefore located in Washington, D.C., is unsupported. In any event, I am bound to follow higher authority, and the Ninth Circuit has ruled to the contrary. Hughes v. U.S., 953 F.2d 531, 541-542 (1992).
In re David R. Myrland, 209 B.R. 524, 525 (1997) (footnote omitted).

From the Hughes decision:
The Hugheses do, however, launch several tangential attacks on the district court's decision. First, the Hugheses argue that the IRS has no authority outside of Washington, D.C. To support this contention, they rely on 4 U.S.C. § 72, which states that "[a]ll offices attached to the seat of governments shall be exercised in the District of Columbia, and not elsewhere, except as otherwise expressly provided by law." This section does not foreclose the exercise of authority by the IRS outside the District of Columbia. The President is authorized to establish internal revenue districts for the purpose of administering the internal revenue laws, and these districts can be created outside of Washington, D.C. See 26 U.S.C. § 7621. Furthermore, as we have held, the Secretary of the Treasury and the Commissioner of Internal Revenue have the authority to delegate tax collecting power to local IRS officers and employees throughout the country.
Hughes v. United States, 953 F.2d 531, 542-543 (9th Cir. 1992).

Of course, Springer (still another reference to another thread) would now chime in and point out that internal revenue districts have been abolished.

Still, the meaning (and purpose) of the phrase "attached to the seat of government" remains unclear to me.
Dan Evans
Foreman of the Unified Citizens' Grand Jury for Pennsylvania
(And author of the Tax Protester FAQ: evans-legal.com/dan/tpfaq.html)
"Nothing is more terrible than ignorance in action." Johann Wolfgang von Goethe.
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Ottaviano is now "Ronald George: Ottaviano"

Post by Parvati »

In his latest filing, Ottavaino refers to himself as both "Ronald George of the family Ottaviano" and Ronald George: Ottaviano.

Here's a link to his latest, which is a response to the DoJ's response to this Motion to Dismiss for Subject Matter Jurisdiction: http://www.scribd.com/full/48114266?acc ... n9dmdatgo1
Dear Judge Martini,

I will not be bothered with or bore you Sir with arguing the insults and slander towards me from Mr. Vartan, I will go right to the source of his response to my motion.
--->snip<---
2. MISAPPREHENDS BASIC CONSTITUTIONAL LAW
In the motion defendant never stated that the executive is responsible for defining criminal offenses, Mr. Vartan just wants to make me look stupid, but that's ok.
He then goes on about the geographical location thing again, "territories and enclaves" and the "sovereign state of New Jersey."

By the time you get to page 4 (Affidavit and Declaration of Defendant--dated 28 Dec 2010), you can really start to see that the Sovereign brainworms have been turning his grey matter into swiss cheese. The first list ("Maxims") begins with:
All men and women know that the foundation of law and commerce exists in the telling of the truth, the whole truth and nothing but the truth.
Truth as a valid statement of reality is sovereign in commerce.
An unrebutted affidavit stands as truth in commerce.
He, who does not deny, admits.
--->snip<---

Then he decides to throw in a bit of French for flavor:
A l'impossible nul n'est tenu.
And later, some Latin (with handy-dandy translations):
Culpa lata aequiparatur dolo. A concealed fault is equal to a deceit.
Ex malificio no oritur contractus. A contract cannot arise out of an act radically wrong and illegal.
Page 5 begins:
BE IT KNOW(sic) TO ALL MEN BY THESE PRESENTS that I Ronald George of the family Ottaviano a living breathing man being first duly sworn, depose and say and declare by my signature that the following facts are true to the best of my knowledge and belief.

THAT, I Ronald George: Ottaviano---->snip<----
He then goes on to declare that the Grand Jury was, in fact a "Special Grand Jury" and that it lacks indictment authority. He also says he was denied due process, and yammers some more.

The hearing on all his motions/responses is set for tomorrow.
"The risk in becoming very intimate with a moldie Parvati is that she may unexpectedly become a Kali and take your head."--Rudy Rucker, Freeware
* * *
“Most men would kill the truth if truth would kill their religion.”--Lemuel K. Washburn.
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DoJ's Motion in Limine

Post by Parvati »

The second document of the day is the DoJ's Motion in Limine, here:
http://www.scribd.com/doc/48131446

In essence, the case is going to boil down to whether or not the DoJ can prove that Ottaviano and Balice knew that the BICs, PTOs and etc. that they were selling were not legitimate.
"The risk in becoming very intimate with a moldie Parvati is that she may unexpectedly become a Kali and take your head."--Rudy Rucker, Freeware
* * *
“Most men would kill the truth if truth would kill their religion.”--Lemuel K. Washburn.
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Trial begins 4 March 2011.

Post by Parvati »

Trial begins 4 March 2011. They think it will take about 3 weeks, given that the attorneys for the other involved parties all need to have their say. That's a *whole* lotta lawyers.

(Edited to change date from "22 Jan 2011" to "22 Feb 2011." My bad. Then updated to 4 March 2011. Not my bad. :) )
Last edited by Parvati on Fri Feb 04, 2011 8:22 pm, edited 4 times in total.
"The risk in becoming very intimate with a moldie Parvati is that she may unexpectedly become a Kali and take your head."--Rudy Rucker, Freeware
* * *
“Most men would kill the truth if truth would kill their religion.”--Lemuel K. Washburn.
bmielke

Re: Trial begins 22 Jan 2011.

Post by bmielke »

Parvati wrote:Trial begins 22 Jan 2011.
Is the trial going on?
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Re: Trial begins 4 March 2011.

Post by Parvati »

bmielke wrote:
Parvati wrote:Trial begins 22 Jan 2011.
Is the trial going on?
Oops! My bad. Edited post to correct the date. Thanks. :)
Last edited by Parvati on Fri Feb 04, 2011 8:22 pm, edited 1 time in total.
"The risk in becoming very intimate with a moldie Parvati is that she may unexpectedly become a Kali and take your head."--Rudy Rucker, Freeware
* * *
“Most men would kill the truth if truth would kill their religion.”--Lemuel K. Washburn.
bmielke

Re: Trial begins 22 Feb 2011.

Post by bmielke »

Parvati wrote:
bmielke wrote:
Parvati wrote:Trial begins 22 Jan 2011.
Is the trial going on?
Oops! My bad. Edited post to correct the date. Thanks. :)
Hey no problem I was worried someone got their hands on SFB's time machine.
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Hearing on Pretrial Motions: Minutes

Post by Parvati »

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MINUTES OF PROCEEDINGS
Newark Date: 02/04/11
JUDGE WILLIAM J. MARTINI
Deputy Clerk: Gail Hansen
Court Reporter: Walter Perelli
Other:
Docket No. Cr. 10-485
TITLE OF CASE:
United States
v. Ronald Ottaviano, et al
Appearances:
AUSA Lee Vartan and Christopher Kelly
Michael Calabro, Stand-by Counsel for Ottaviano
Ronald Ottaviano
Joseph Donohue, Counsel for Balice
Gary Cutler, Counsel for Foster
Richard Verde, Counsel for Calle
Alexander Booth, Counsel for Done
NATURE OF PROCEEDINGS:
Hrg on pretrial motions:
Brady provided; Jenck’s & Giglio to be provided 10 days prior to trial;
Balice’s motion for a Bill of Particular’s - Denied;
Gov’ts in limine motion with respect to 404 b statements - Decision Reserved
All agents notes to be preserved;
Balice’s motion with respect to the Bruten issue - already provided by the gov’t;
Ottaviano’s motion for change of venue - Denied;
Ottaviano’s motion for dismissal for lack of subject matter is Denied;
Ottaviano’s motion for violation of the Speedy Trial Act- Decision Reserved;
Motions for severance - Denied;
Motions for suppression - Decision Reserved
Motions for gov’t witness list before trial - Denied
Ottaviano’s motion for prosecutorial misconduct - Denied
Gov’ts motion for reciprocal discovery 10 days before trial - Decision Reserved.
New Trial Date: 4/4/11
Time Commenced: 10:45 a.m.
Time Adjourned: 11:45 a.m.
Total Time: 1 hour
Gail A. Hansen, Deputy Clerk
"The risk in becoming very intimate with a moldie Parvati is that she may unexpectedly become a Kali and take your head."--Rudy Rucker, Freeware
* * *
“Most men would kill the truth if truth would kill their religion.”--Lemuel K. Washburn.
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Order on Omnibus Motion

Post by Parvati »

Judge's Order re: Omnibus Motion.

Doesn't sound very good for Ottaviano & Co.
"The risk in becoming very intimate with a moldie Parvati is that she may unexpectedly become a Kali and take your head."--Rudy Rucker, Freeware
* * *
“Most men would kill the truth if truth would kill their religion.”--Lemuel K. Washburn.
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Ottaviano's First Motion in Limine

Post by Parvati »

Note that Ottaviano has put "United States" in quotes. Sheesh.
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

Criminal No. 10-485 (WJM)
U.S. DISTRICT COURT JUDGE WILLIAM F. MARTINI

the “UNITED STATES” - Plaintiff
v.
RONALD OTTAVIANO - Defendant

DEFENDANT’S FIRST MOTION IN LIMINE

COMES NOW Defendant, Ronald Ottaviano, pro se, and requests this Court to enter an Order in Limine, to prevent any discussion in opening statement, questioning of witnesses or in argument concerning any of the following matters:
1. Testimony by Plaintiff’s witnesses that defendant defrauded or attempted to defraud clients or that defendant held himself out to clients to be an attorney or that defendant embellished his education to clients for the purposes of doing business with them.
2. Defendant has received information in discovery that Plaintiff will allege that defendant made guarantees to clients that the BIC process would work, and other information that may look to a jury as though Defendant was defrauding his clients. Defendant believes this information to be unfairly prejudicial, misleading, and irrelevant, due to defendant not being charged with defrauding clients. defendant is Case 2:10-cr-00485-WJM Document 112 Filed 02/21/11 Page 1 of 3 PageID: 960
charged with conspiracy to defraud the United states and unless any of these actions were directed to the United States and not clients they are prejudicial, misleading and irrelevant.
3. Testimony of DOL Special Agents Stephen Rodeschin and Joel Parisi whom interviewed defendant concerning Ed Dombrowski and an Insurance program. This interview was not connected with the BIC program or Pure Trusts and has nothing to do with any conspiracy to defraud the United States or this case. These agents did not tell defendant he was a target of any investigation and defendant was not read his rights by these agents.
4. Testimony of TIGTA Special Agents Mark Scrivanich and his investigator. This interview purpose according to the agents was about defendants use of IRS Form 2848 and a release of lien for a client, these agent’s never talked about Pure Trusts or BIC and did not seem to be interested in those subjects. Again, these agents did not tell defendant that he was a target of any Grand Jury investigation nor did they read defendant his rights before questioning.
5. Any evidence by its nature that would show that defendant may have defrauded clients or any evidence directed to clients that does not show a conspiracy to defraud the United States has no relevance to this case and any attempt to convey before the jury, at any time during these proceedings in any manner, ether directly or indirectly, the subject matters as stated above, and to instruct the parties to warn and caution all witnesses to follow these instructions.
6. Any evidence by its nature that would show that defendant had extra Case 2:10-cr-00485-WJM Document 112 Filed 02/21/11 Page 2 of 3 PageID: 961
marital affairs or any sexual liaisons, or any testimony to that fact would be extremely prejudicial and only serve to character assassination of the defendant and not relevant to this case.
6. Any relevance to a need to punish defendant, send defendant a message or similar comments because such would be irrelevant and unfairly prejudicial.
WHEREFORE, Defendant Ronald Ottaviano respectfully requests of the Court an order directing Plaintiff, not to mention, refer to or interrogate, concerning, or voluntarily answer or attempt to convey before the jury, at ant time during these proceedings in any manner, either directly or indirectly, the subject matters as stated and enumerated above, and to instruct the parties to warn and caution all witnesses to follow these instructions.
Respectfully submitted this 17th day of February 2011
___________________________________
Ronald Ottaviano, Defendant
Case 2:10-cr-00485-WJM Document 112 Filed 02/21/11 Page 3 of 3 PageID: 962
And Judge Martini's response:
IN THE UNITED STATE DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA - Plaintiff
vs.
RONALD OTTAVIANO - Pro Se Defendant

Criminal No. 10-485 (WJM)
U.S. DISTRICT COURT Judge William F. Martini


ORDER
This motion having come before the Court by Defendant Roanld Ottaviano, pro se in the above captioned matter and the Court having considered all papers in support and in opposition to that motion and after due deliberation
it is on this ___________ day of February 2011
ORDERED AND ADJUDGED THAT the First Motion in Limine in this case be and the same is hereby granted.
_________________________________
William F. Martini, U.S.D.C./J.

Case 2:10-cr-00485-WJM Document 112-1 Filed 02/21/11 Page 1 of 1 PageID: 963
His motion is granted. I can only imagine that this will be spun to indicate that Total Victory is His.
"The risk in becoming very intimate with a moldie Parvati is that she may unexpectedly become a Kali and take your head."--Rudy Rucker, Freeware
* * *
“Most men would kill the truth if truth would kill their religion.”--Lemuel K. Washburn.