Sherry Jackson's Appeal

[DarkestBeforeDawn]

wserra

I actually like your post for the most part, much easier to understand your thoughts on the subject. However, it seems you are taking a leap of sorts to get to that conclusion, I am not saying you are wrong. I don't really see in the Constitution where there is separation between different crimes other than impeachment and piracy which don't seem relevant to this discussion. I mean what we are doing if we go this route is to rewrite what was given, in my opinion to get to the desired conclusion.

I actually agree with much of your post and I actually think we could have a reasonable debate on the issue/s. If you have some SC cases on some what you say I will be glad to look at it. My mind is open on the subject. However, interesting to note, nothing in any of DOJ responses to Jackson and the other case has mentioned anything like you have said. I see nothing in the Constitution making a distinction between Crimes but like I said if you have more information I am very much open on the subject.

"If the matter rested with these statutes, there would be no room for doubt that jurisdiction to punish for crimes committed on the lands within the Park remained with the State."

As of right now I see not distinction between different types of crimes. Jackson maybe wrong but to me this is not frivolous at all. Section 3231 would only be relevant if jurisdiction were already given as I see it. You must first have the authority via the Constitution, DOJ is only pointing to 3231 which is exactly what ASITStands is saying, the issue isn't being addressed.

I think your post is excellent although I don't think we are completely eye to eye on the matter. If you have SC case that make a distinction between police and non-police powers in this context than I am more than interested. I mean the US could have a statute against jaywalking whether or not there is a statute or not has little to do with it from what I can tell. You either have jurisdiction or you don't first via the Constitution.

[Demosthenes]

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

You were responding to this, no?

the State of Georgia does not have a law making the willful failure to file a federal income tax return a crime

There is no state law regarding the failure to file a federal tax return. Failing to file a state tax return is a state law issue and failing to file a federal tax return is a federal law issue -- the two are completely separate laws with no overlap. Contrasting that to the murder example is therefore appropriate.

[Demosthenes]

nothing in any of DOJ responses to Jackson and the other case has mentioned anything like you have said.

It isn't the DOJ's job to educate a defendant. Jackson should have her own attorney for that purpose. The motion is written for the judge to read and it's written in a kind of legal-speak shorthand.

[The Operative]

It does have the police power anywhere it has exclusive jurisdiction. Hence the requirement of the federal murder statute at issue in Bowen that it only applied in federal areas. Otherwise it would have been unconstitutional as an exercise of federal power in excess of constitutional grant.

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

Which is basically the point I was trying to make. I guess I wasn't as eloquent. I believe Pennsylvania V. Nelson is also similarly inapplicable because of its premise.

While I have not located a case that clearly states my contention on jurisdiction concerning federal crimes, I will point to the dissenting opinion of Mr. Justice McLean in Fox vs. Ohio, 46 U.S. 410

It would seem, therefore, that the power to punish for passing counterfeit coin is clearly in the federal government.

Can this same power be exercised by a State. I think it cannot. Formerly Congress provided that the State courts should have jurisdiction of certain offences under their laws, and in several States indictments were prosecuted, and to a limited extent the laws of the Union were enforced by the States. But some States very properly refused to exercise the jurisdiction in such cases, and it was too clear for argument that Congress could not impose such duties on State courts. And this doctrine is now universally established. Consequently no State court will undertake to enforce the criminal law of the Union, except as regards the arrest of persons charged under such law. It is therefore clear, that the same power cannot be exercised by a State court as is exercised by the Courts of the United States, in giving effect to their criminal laws.

I know it is a dissenting opinion and he did not provide citations. However, he was obviously of the opinion that state courts could not and should not enforce the criminal laws of the Union.

[triumphguy2]

I think the discussion with AIS and DBD, as well as SteveSys's frequent rants, reflect a persistent tactic of tax deniers and those who support them: reading a single phrase from an opinion without regard to the factual context in which it arose, and then applying that phrase to factually dissimilar cases as if it were gospel. DBD's take on the Bowen case is a perfect example of this trait.

All of which is simply an opportunity for me to introduce an excerpt from one of my favorite opinions, penned by Justice Arthur Gilbert of the 2d District Court of Appeal in California:

"A short digression on the subject of what cases mean-obligations of the writer and the reader

…An opinion ought to be written so that a reasonably intelligent reader knows what it means. The opinion ought to be concise and clear, not vague and obscure. The holding of a case should state a principle of law with sufficient clarity so that persons can carry on their affairs with reasonable predictability as to the legal consequences of their actions. If, however, an opinion be reasonably susceptible to different interpretations, then the writer may have failed to meet his or her obligation.

On the other hand, if the reader lets the wish for a particular result color the meaning of an opinion, then the reader has not met his or her obligation. It is understandable that lawyers often view a case only from the perspective that favors their client. Lawyers, however, should not practice “... the art of proving by words multiplied for the purpose, that white is black, and black is white, according as they are paid.” (Swift, Gulliver's Travels (1726) A Voyage to the Country of the Houyhnhnms, ch. five.)

This approach is unproductive because “ ‘[a] litigant cannot find shelter under a rule announced in a decision that is inapplicable to a different factual situation in his own case, nor may a decision of a court be rested on quotations from previous opinions that are not pertinent by reason of dissimilarity of facts in the cited cases and in those in the case under consideration…

Even “[t]he devil can cite scripture for his purpose....” (Shakespeare, Merchant of Venice, act I, scene 3, line 99.) Counsel must therefore not misconstrue the holding of an opinion in order to make it applicable to the facts of his or her client's cause. “ ‘It is the general rule that the language of an opinion must be construed with reference to the facts presented by the case, and the positive authority of a decision is coextensive only with such facts.’ ” …

Even the dispassionate critic must take heed. “[S]ome misimpressions are created by the reader or critic who takes a sentence or paragraph from an opinion, sometimes out of context, and analyzes it as a Shakespeare scholar would, or as though it were a verse from Holy Writ, discovering hidden meanings, innuendoes, and subtleties never intended.”…

In an attempt to extract legal principles from an opinion that supports a particular point of view, we must not seize upon those facts, the pertinence of which go only to the circumstances of the case but are not material to its holding. The Palsgraf rule, for example, is not limited to train stations…The reader who distinguishes between facts germane to the holding, and those that are not, can assess the reasonable extensions of the holding. A reader must realistically appraise what he or she reads and resist the temptation to see a grin without a cat. (Carroll, Alice's Adventures in Wonderland, ch. VI.) Ultimately this approach is more effective to advance a client's cause and the cause of justice.

We writers and readers of opinions should heed the admonition of Voltaire. “Let all the laws be clear, uniform and precise: to interpret laws is almost always to corrupt them.” (A Dictionary of Legal Quotations (1987) p. 18.)"

Harris v. Superior Court (Cal. App. 2d Dist. 1992, BO60023), 3 Cal.App.4th 661, 4 Cal.Rptr.2d 564.


Re-engaging lurking device…

Patrick Cherry
Ventura, CA

[Quixote]

Section 3231 would only be relevant if jurisdiction were already given as I see it. You must first have the authority via the Constitution, DOJ is only pointing to 3231 which is exactly what ASITStands is saying, the issue isn't being addressed.

No, Section 3231 is clearly relevant, because it addresses jurisdiction. I assume you meant to write that Section 3231 would only be valid if jurisdiction were already given. Lawyers and judges assume that an unchallenged statute is valid. Jackson never challenged the validity of 3231, as she could not. It is simply a restatement of the jurisdictional clause in the constitution.

[wserra]

I don't really see in the Constitution where there is separation between different crimes

There clearly is such a distinction, based on a common-law concept known as the police power.

If you have some SC cases on some what you say I will be glad to look at it. My mind is open on the subject... If you have SC case that make a distinction between police and non-police powers in this context than I am more than interested.

Ask, and ye shall receive.

The Constitution requires a distinction between what is truly national and what is truly local. [Citations omitted.] In recognizing this fact we preserve one of the few principles that has been consistent since the [Commerce] Clause was adopted. The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States. See, e.g., Cohens v. Virginia, 6 Wheat. 264, 426, 428, 5 L.Ed. 257 (1821) (Marshall, C.J.) (stating that Congress “has no general right to punish murder committed within any of the States,” and that it is “clear ... that congress cannot punish felonies generally”). Indeed, we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.

United States v. Morrison, 529 U.S. 598, 617-618 (2000) (emphasis supplied).

This is why, without the element of exclusive federal jurisdiction, the Bowen murder statute would have been unconstitutional - and why Bowen is no help to Jackson.

[Kimokeo]

May I ask?

If illegal immigrants exist in your State, who has to deal with it?
Every time I hear some State trying to pass a law to deal with illegal immigrants, it's considered unconstitutional.

So, the States can't pass laws to evict them.

That leaves the Fed to enforce the law. A law the Federal gov't has.

So, if you enforce Federal law and you arrest the illegal alien, is this going to a Federal Court or a State Court?

And, if you are at Guantanamo Bay, which isn't in any State, that leaves only Federal Court.

[DarkestBeforeDawn]

No, Section 3231 is clearly relevant, because it addresses jurisdiction. I assume you meant to write that Section 3231 would only be valid if jurisdiction were already given. Lawyers and judges assume that an unchallenged statute is valid. Jackson never challenged the validity of 3231, as she could not. It is simply a restatement of the jurisdictional clause in the constitution.

What?

Jurisdiction flows from the Constitution first and foremost, not from Section 3231 in this case. Jackson in essence is saying Congress has no ability to make a law for prosecution within a State. I don't know how to make that any simpler.

triumphguy2

Ok, so unless I just agree for the sake of just agreeing than I am a tax denier. Why do you even come to this forum, you don't want to hear anything other than what you want to hear.

[DarkestBeforeDawn]

wserra

Again, an excellent post, I can have a reasonable discussion with you. I am not so sure I agree with the use of that case with the Article 3 cases but I do see your point as to regulation of interstate commerce but the question of jurisdiction of criminal prosecution like Jackson has brought up isn't even addressed. I understand that was not the purpose of your post.

Again, nice post I don't know if that addresses the question though. I don't see a distinction in the Constitution when it comes to "Crimes" although there are some exception impeachment, piracy, etc. I haven't seen a case that has addressed the question of Article 3 in the same context as the Jackson appeal, I would say Bowen is the closest I can find.

The court shouldn't be in a position to question location if both parties agree that USDC has jurisdiction. I mean what we are doing is saying these cases are relevant but the subject that Jackson has brought up isn't even mentioned.

I don't think anyone is right or wrong about anything, I think the case is interesting. That is all.

[Famspear]

The court shouldn't be in a position to question location if both parties agree that USDC has jurisdiction.

As a matter of law, I believe that a federal court has both the power and (probably) the responsibility for determining whether that court has subject matter jurisdiction in each case, and to dismiss the case where the court determines that it has no subject matter jurisdiction -- even if the parties "agree" that the court has jurisdiction.

[DarkestBeforeDawn]

The court shouldn't be in a position to question location if both parties agree that USDC has jurisdiction.

As a matter of law, I believe that a federal court has both the power and (probably) the responsibility for determining whether that court has subject matter jurisdiction in each case, and to dismiss the case where the court determines that it has no subject matter jurisdiction -- even if the parties "agree" that the court has jurisdiction.

I generally agree but you probably won't see a court disagree with much when you have two willing players, generally. I mean if one party said this event happened here and the other party doesn't disagree or refute than the court could assume jurisdiction but in the end subject matter jurisdiction can't be waived where as personal jurisdiction can be.

I'll leave it at that or I will be taking us way off topic. In the end I agree with you on this but it doesn't always play out that way.

[ASITStands]

May I ask?

If illegal immigrants exist in your State, who has to deal with it?

Every time I hear some State trying to pass a law to deal with illegal immigrants, it's considered unconstitutional.

So, the States can't pass laws to evict them.

That leaves the Fed to enforce the law. A law the Federal gov't has.

So, if you enforce Federal law and you arrest the illegal alien, is this going to a Federal Court or a State Court?

And, if you are at Guantanamo Bay, which isn't in any State, that leaves only Federal Court.

Excellent questions which I believe illustrate the federal/state question under discussion.

How can the United States bring charges against an illegal immigrant when it has no address? How can it allege a crime occurred within a federal district without an address in a State?

Subject-matter jurisdiction proceeds from venue and standing.

If venue at Article III, Sec. 2, Cl. 3 is challenged, subject-matter jurisdiction is not acquired until answered, and that's not happening in the response made by U.S. Attorney Langway.

The court shouldn't be in a position to question location if both parties agree that USDC has jurisdiction.

As a matter of law, I believe that a federal court has both the power and (probably) the responsibility for determining whether that court has subject matter jurisdiction in each case, and to dismiss the case where the court determines that it has no subject matter jurisdiction -- even if the parties "agree" that the court has jurisdiction.

Another excellent observation which appears to be the challenge made by Sherry Jackson.

[Famspear]

Subject-matter jurisdiction proceeds from venue and standing.

I'm not really following this thread very closely, but with all due respect that doesn't look correct. Subject matter jurisdiction does not proceed from either venue or standing.

If venue at Article III, Sec. 2, Cl. 3 is challenged, subject-matter jurisdiction is not acquired until answered, and that's not happening in the response made by U.S. Attorney Langway.

A challenge regarding venue would affect the presence or absence of subject matter jurisdiction? I think we're getting into a weird area here.

[Prof]

Standing and venue have exaction "0" to do with subject matter jurisdiction. Subject matter jurisdiction is conferred on the Courts of the U. S. by either the Constitution or by statute. Federal courts are said to be be courts of limited jurisdiction because their subject matter jurisdiction is limited by the Constitution and statute.

Venue is merely the place of trial; standing is merely the right to bring a cause of action. A federal court has bankruptcy jurisdiction because the Constitution gives exclusive bankruptcy power to Congress and Congress has vested that power in the federal courts at title 28, sec. 1334.

A bankruptcy may only be filed in the federal district court of the residence, etc., of the debtor (28 U.S.C. 1408)-- that is venue -- not subject matter jurisdiction. Venue, unlike subject matter jurisdiction can be waived, and is waived all of the time.

Standing is "who can." For example, an involuntary bankruptcy, says 11 U.S.C. 303, can only be filed by one or more unsecured creditors. If one or more SECURED creditors try to file, they have no standing to be heard -- they cannot file. Standing can also be waived in some instances.

However, if you were to file a bankruptcy of any kind in state court, the matter would be dismissed for lack of subject matter jurisdiction because of the Constitution and federal statutes.

The same is true of federal crimes. Congress passes a law making something a crime. (Assume that this falls within the Congressional powers of Art. 1; call this law a "bankruptcy crime").

See, e.g., title 18 sec. 153, embezzlement against a bankruptcy estate.

Subject matter jurisdiction is vested by title 28 in the US District Court; venue, according to title 28, is in the district where the bankruptcy was filed (i.e., where the crime took place).

Nowhere does a state court play.

Now, go back and read Art. III using this template.

[ASITStands]

Subject-matter jurisdiction proceeds from venue and standing.

I'm not really following this thread very closely, but with all due respect that doesn't look correct. Subject matter jurisdiction does not proceed from either venue or standing.

If venue at Article III, Sec. 2, Cl. 3 is challenged, subject-matter jurisdiction is not acquired until answered, and that's not happening in the response made by U.S. Attorney Langway.

A challenge regarding venue would affect the presence or absence of subject matter jurisdiction? I think we're getting into a weird area here.

Not being an attorney, I stated it incorrectly. I'm still learning.

If a federal district court is found not to have subject-matter jurisdiction, because the Trial of all Crimes is dependent on whether the crime is committed within the boundaries of a State or not committed within said boundaries [which I believe is venue], then subject-matter jurisdiction is not acquired, and the case, and/or its outcome, must be dismissed.

I was responding to your comment that federal district courts have a responsibility to prove, or acquire, subject-matter jurisdiction, or the case must be dismissed.

I see 'Prof' has corrected me.

Bankruptcy Court, as well as Tax Court, are Article I Courts. And, on that basis, I can see how the "trials" of all bankruptcy and tax court issues take place in federal courts.

However, as 'Prof' correctly suggests, "Subject matter jurisdiction is conferred on the Courts of the U. S. by either the Constitution or by statute." My question is, "How can any statute granting jurisdiction to federal district courts violate Article III, Sec. 2, Cl. 3?"

[DarkestBeforeDawn]

However, in the case of a bankruptcy case you willingly entered Federal court(Federal property). If you lie on your bankruptcy petition or statements you are on Federal property, which if you go back to the Jackson appeal and Bowen would be or could be criminal chargeable offense by the US if it happened on property consented by the State or outside of any State.

Do I think a person can go into bankruptcy court and start doing whatever they want without penalty? No in most cases based on what I am reading in Bowen.

ASITStands loses me in certain parts, the Jackson case is mostly about subject matter jurisdiction but standing was brought up. I will stick to the subject matter issues.

"How can any statute granting jurisdiction to federal district courts violate Article III, Sec. 2, Cl. 3?"

I don't see how it violates Article 3 at all. They are simply setting up districts for civil and criminal proceedings. If you read what is in Bowen than you will see that criminal and civil cases still arise within the district but outside of the State's jurisdiction.

[Dr. Caligari]

My question is, "How can any statute granting jurisdiction to federal district courts violate Article III, Sec. 2, Cl. 3?"

It doesn't. Article III, section 2, cl. 3 says that if a federal crime is committed within a state, the trial of that crime will be in that state. It says nothing about whether it is to be in a state court or a federal court, only that the trial be geographically within that state. Here, Sherry Jackson was in Georgia when she committed the federal crime of failure to file a tax return. Therefore, the Constitution requires that the trial that crime must be in Georgia-- it doesn't say that the trial must be in a state court of Georgia, only that it be in Georgia. Here, Sherry jackson was tried in a federal court located in Georgia.

What would violate Article III, Sec. 2, Cl. 3 would be if Congress passed a law that said that if anyone in Georgia failed to file a tax return they would be tried in the federal court in Alaska.

[DarkestBeforeDawn]

It doesn't. Article III, section 2, cl. 3 says that if a federal crime is committed within a state, the trial of that crime will be in that state. It says nothing about whether it is to be in a state court or a federal court, only that the trial be geographically within that state. Here, Sherry Jackson was in Georgia when she committed the federal crime of failure to file a tax return. Therefore, the Constitution requires that the trial that crime must be in Georgia-- it doesn't say that the trial must be in a state court of Georgia, only that it be in Georgia. Here, Sherry jackson was tried in a federal court located in Georgia.

What would violate Article III, Sec. 2, Cl. 3 would be if Congress passed a law that said that if anyone in Georgia failed to file a tax return they would be tried in the federal court in Alaska.

I agree with part disagree with part.

If what you said were true than the Bowen case would not exist as is, the federal government could charge for murder anywhere in the State of Georgia without consent. What is interesting about that case is their was a dispute as to jurisdiction over land acquired by the US. I see no distinction between crimes in Art. 3, unless it's piracy on the high seas or impeachment, etc.

The Jackson case is not about venue at least to me, it's all subject matter jurisdiction. I mostly respectful disagree.

[Prof]

First, I mentioned nothing about the jurisdiction of Art. 1 Bankruptcy Courts. Title 28, at 1334, vests all bankruptcy trial jurisdiction in the US District Courts. There is a complicated dance to get to the Art. 1 Courts that we do not need to consider. All bankruptcy crimes, at title 18, are tried in US District Court.

Then, you start talking about being in a bankruptcy voluntarily -- not so under cases filed under sec. 303, title 11.

Second, you need to learn to read in context. Here are the relevant Constitutional provisons from Art. III:

Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;11--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.11

Clause 2:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Clause 3:

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

Clause 1 vests the subject matter jurisdiction in the courts of the US under certain circumstances, including federal crimes.

Clause 3 states, among other things, the venue of criminal trials. Venue is the State in which the crime (federal crime) was committed. As someone pointed out, this Constitutional protection prevents a federal criminal who acted in Ga. from being tried in NY -- a very important protection in 1789.

Go back to title 18, 154 -- a federal bankruptcy crime is committed -- it can only be tried in a federal court -- title 28 -- and the venue is located in the State where the crime was committed.

There is nothing wrong with that analysis and the analysis is simple as long as you keep in mind that jurisdiction -- subject matter jurisdiction -- and venue are two different things.

This really is simple unless there is concurrent jurisdiction which in the case of bankruptcy there is not; and, there is also no concurrent jurisdiction over federal tax crimes. States have no such jurisdiction. The criminal code of Ga. may make it a crime to file fraudulent Ga. tax returns. You will find nothing in Ga. law -- statutory or otherwise -- whereby Ga. has made federal tax fraud, etc., a crime. The simple fact is that Ga. has no subject matter jurisdiction; only the federal courts have subject matter jurisdiction over tax crimes, just like federal courts have exclusive subject matter jurisdiction over bankruptcy.

By the way, modern venue statutes under title 28 limit venue to the districts within a State which has multiple districts to the district in which the act, etc., happened or in which the person filing a civil action resides, in order to avoid a criminal prosecution for a Houston crime being tried in El Paso (S.D. and W.D. Tex., respectively). This doesn't help in Alaska, with only one district in the State.