Territorial Jurisdiction Challenge.
In The United States District Court
For The District Of Alaska
Case No.: No. 12-3-456789-1
Brief in Support of Motion to Dismiss Indictment
This brief will outline the reasons this Court should dismiss the Indictment in this matter.
The Government in this indictment failed to plead a violation of any statute or regulation that would trigger the punishment statues cited in the indictment. The Government plead violation of 26 U.S.C. §7201. Attempt to evade or defeat tax., §7206 and §7203 along with certain sets of actions and circumstances. There are no duties involved with these statutes, only penalties. These statutes by their plain language address “any tax imposed by this title”. Title 26 contains every type of tax that any person in any taxable activity could be libel for in the United States. Until the government pleads in particular and with specificity which statutes that impose a tax along with the regulations that give them force of law that imposes a legal duty on the Jensens, there would be no possible way the Jensens, could prepare a defense or even know the theory of the governments case.
A defendant is entitled to know the theory of the governments case.
“A defendant is not entitled to know all the Evidence the government intends to produce, but only the Theory of the government’s case.” Yeargain v. United States, 314 F.2d at 882 (9th Cir. 1963).
Until there is a statue and regulation plead that causes the actions and circumstances plead in the indictment to operate in violation of the law this court cannot find the Jensens guilty of any illegal act. This type of pleading, while being very convenient for the Government, is very prejudicial and operates to deny the Jensens the right of being informed of the basis for the charges against them. This set of circumstances also operates to deny this court jurisdiction over the indictment.
While the Government took the time to identify in Count 1 a tax allegedly owed by Jensen as “the tax, penalties and interest due and owing by him”. The Government never did take the time to plead or identify a taxing statute along with it’s implementing regulation that creates the legal duty to pay such tax or file some tax form. Because 28 U.S.C. 2201(a) prevents the court from making any determinations concerning the Jensens taxpayer status these glaring omissions operate to deny this Court the ability to provide Finality of Judgment.
Revenue cases are unique in the jurisprudence of the United States and need to be plead in a unique fashion. 28 U.S.C §2201(a) prevents the court from making any determinations concerning the taxable status of the Jensens. So the Jensens come to court in this matter with the presumption of innocence and that there is not even a legal relation between the Jensens and any of Title 26. The burden is on the Government to plead with particularity and then prove what the Jensens legal relations is with some specific statute and regulation in order to prove they violated some legal duty. The only authority who can make that taxpayer status determination is the Secretary of the Treasury or his delegate. Under the present set of circumstances the Secretary of the Treasury or his delegate could appear at the trial and declare that the Jensens were not “Taxpayer’s” as defined. At that time the Court would have no option but to dismiss the case for lack of jurisdiction. Well those same circumstances exist RIGHT NOW… before the trial starts. Until such time as the government either supplies the record with an affidavit from the Secretary of the Treasury outlining the legal relations that the Jensens have with Title 26 or pleads in their indictment the legal relations with a particular statute and regulation that imposes a legal duty this court does not have all the Jurisdictional Elements that would give the court jurisdiction over the indictment. Anytime before the end of this impending trial if these errors are not cured all the courts decisions could be overturned by a executive agency. Thereby, rendering this Court powerless.
The combination of 28 U.S.C. §2201(a) and the lack of the proper affidavits from the Secretary of the Treasury or his delegate, or a properly plead indictment outlining the Jensen’s legal relationship with Title 26 operates to deny the Court any Judicial power. See United States Constitution Annotated Art, III “Finality of Judgment as an Attribute of Judicial Power,” Page 633, 1982 ed.
The Government has worked a fraud on the Grand Jury and is attempting to work that same fraud on the Court and the Jensens. In order to meet the required jurisdictional elements that the illegal acts took place under the jurisdiction of this Court the Government pled that the Jensens committed the illegal acts alleged in the indictment “in the District of Alaska and elsewhere”.
One of the key jurisdictional elements of a Federal Crime is the place it was committed. Until the Government can plead unchallenged or prove the defendants where actually in some “District of Alaska” or some other place under exclusive Federal jurisdiction referred to as “elsewhere” this court does not have all the jurisdictional elements to provide for proper jurisdiction over the indictment. See United States v. Spinner, 180 F.3d 514 (3rd Cir. 1999).
The facts recited by the government state that the Jensens lived in Cordova Alaska. Cordova is a small isolated fishing town in Alaska and does not comprise any generally known Federal District. If the Government wants to plead that Cordova Alaska is included in some kind of generally unknown “District of Alaska” they need to plead the legal relation between the Jensens and said Federal District so that the Jensens can know the theory of the governments case, they can craft a proper defense and this Court will have proper jurisdiction.
The Court is well aware of what it takes to have proper jurisdiction. Jurisdiction over, the subject matter, the place, and the person. It takes all three for the court to have all the jurisdictional elements that grants jurisdiction over the indictment. As the court can see this indictment is fatally flawed in many respects. The Government Department of Justice wields great power and employs more well educated attorneys than any business in America. The Government knows how to do indictments correctly and its the Courts duty to force them to do their jobs correctly. This type of procedure is just one step from just having a government agency pick up a person and take them straight to jail without any due process or court process.
If the court dismisses this fatally flawed indictment nothing is stopping the Department of Justice from starting over and getting the process correct. For the foregoing reasons the Jensens ask that the indictment in this matter be dismissed.
Dated this 29th day of April, 2012