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THE 7 ELEMENTS OF JURISDICTION
In
order for any government agency, subsidiary or law to be applied to an
individual American Citizen, it must be first proved or assumed that
the government has jurisdiction in this matter over that particular
individual for that time. Specifically, before an individual can be
charged and convicted with a crime, the government official or agency
must prove jurisdiction. This is seldom accomplished, and many
individuals lose a case and even go to jail when no one has proved this
legally essential issue.
No
where
is
this more common than in Internal Revenue Service cases
against so-called tax protesters. The IRS almost never attempts to
prove jurisdiction. In fact, jurisdiction is almost never even
addressed. If the individual is correct in his/her claims that he/she
is not a taxpayer as defined in the Internal Revenue Code, then the IRS
HAS NO JURISDICTION! With no jurisdiction comes no case and no
conviction! But to win, jurisdiction MUST be challenged by the
individual, and if challenged successfully, the case is dismissed.
There
are
seven
elements of jurisdiction, all of which must be proved
by the prosecution if challenged. If not challenged, it will ALWAYS be
assumed by the court that competent jurisdiction is proved and accepted
by all parties. If any element of the seven is not proved, the case
must be dismissed. The normal process in a case against a so-called tax
protester is to ignore the jurisdiction issue altogether, or else to
challenge jurisdiction while at the same time conforming to procedures
and requirements that assume jurisdiction. In other words, one cannot
allege the IRS has no jurisdiction over one while at the same time one
continues to file a Form 1040 each year.
In
the
very
few IRS cases where jurisdiction is challenged, almost
always the judge will proclaim jurisdiction from the bench. ["It is the
opinion of this court that the prosecution has jurisdiction in this
case, and exercises it regularly, almost every day. I don't think we
need to go through all that today."] This is a total violation of law
and accepted court procedures. But most federal judges won't let that
stop them! But the one alleging jurisdiction must prove jurisdiction if
jurisdiction is challenged. Usually the defendant charged with a crime
is too intimidated or ignorant to successfully challenge a judge on
this, but the judge MUST be challenged if he/she proclaims that the
prosecution (IRS) has jurisdiction in this case. If he/she is not
successfully challenged, almost always the individual will lose the
case.
One
of
the
easiest and most common means of alleging jurisdiction on
the part of the prosecution (IRS) is to refer to the accused as a
"taxpayer." If that word is ever used in reference to the so-called tax
protester," it MUST be immediately challenged. [“I object, your Honor.
The prosecution has just labeled me a taxpayer. Whether or not I am a
taxpayer is the very root issue in this case, and has not been proven
by the prosecution. I respectfully request that the word 'taxpayer' be
stricken from the record and that the prosecution be instructed to not
use that word again until it has proven that I am indeed a taxpayer.”]
If the defendant does not challenge that word, and similar techniques
used by the IRS, the judge will have legal justification to assume
jurisdiction. Of course, if the defense has done its job, the issue of
taxpayer and jurisdiction would already be established. The time to
challenge jurisdiction is at the beginning of the trial, not at the end
when it looks like the individual is
about
to
lose.
If jurisdiction is to be successfully challenged, it must be at
the very beginning of the trial. To allow the trial to continue at all
is to admit to jurisdiction. Below are the seven issues of jurisdiction
in any and every court case. Remember, if any one of these seven
are not proven beyond a reasonable doubt, the case cannot continue.
1.
The
accused must be properly identified; identified in such a fashion there
is no room for mistaken identity. The individual must be singled out
from all others; otherwise, anyone could be subject to arrest and trial
without benefit of "wrong party" defense. Almost always the means of
identification is a person's proper name, BUT, any means of
identification is equally valid if said means differentiates the
accused without doubt. (By the way, there is no constitutionally valid
requirement that you must identify yourself to the judge or to anyone.)
For stop and identify issues (4th Amendment) see Brown v. Texas, 443 US
47 and Kolender v Lawson, 461 US 352.
2.
The
statute of offense must be identified by its proper or common name. A
number is insufficient. Today, a citizen may stand in jeopardy of
criminal sanctions for alleged violation of statutes, regulations, or
even low-level bureaucratic orders (example: Colorado National Monument
Superintendent's Orders regarding an unleashed dog, or a dog defecating
on a trail). If a number were to be deemed sufficient, government could
bring new and different charges at any time by alleging clerical error.
("I'm sorry, your Honor. I assumed that the regulation indicated by
that number was a legitimate statute. My secretary must have made an
error.") For any act to be triable as an offense, it must be declared
to be a crime. Charges must negate any exception forming part of the
statutory definition of an offense, by affirmative non-applicability.
In other words, any charge must affirmatively negate any exception
found in the law. Example of exception from a case where someone was on
trial for Section 7203, Willful Failure to File(a Form 1040): "...
thereof to make a return (other than a return required under authority
of 6015)... Indictment or information is defective unless every fact
which is an element in a prima facie case of guilt is stated. The
assumption of an element is not lawful. Otherwise, the accused will not
be thoroughly informed. 26 USC 6012 is a necessary element of the
offense. Since 6012 isn't cited, the information is fatally defective.
Additionally, the information did not negate the exception (other than
required under authority of section 6015)." After reading 6012 and
6015, and knowing that the essential section 7203 elements are: A.
Required to perform. B. Failed to perform. C. Failure was willful you
may wish to ask, "how often is a valid Section 7203 indictment or other
information or indictment brought? Very seldom. How many citizens have
been convicted on a fatally defective process? Perhaps thousands, all
with the knowing or willing participation of a federal judge. It is the
judge's job to assure that justice is accomplished. But the judge will
almost always stop short of doing
his/her
job
and
wait until the defense takes the important steps. The fact that
most defense attorneys don't know how to fight a case against the IRS
doesn't seem to matter to the judges. Nor does it seem to matter to the
judge.
3.
The
acts of alleged offense must be described in non- prejudicial language
and detail so as to enable a person of average intelligence to
understand nature of charge (to enable preparation of defense); the
actual act or acts constituting the offense complained of. The charge
must not be described by parroting the statute; not by the language of
same. The naming of the acts of the offense describe a specific offense
whereas the verbiage of a statute describes only a general class of
offense. Facts must be stated. Conclusions cannot be considered in the
determination of probable cause.
4.
The
accuser must be named. He may be an officer or a third party. Some
positively identifiable person (human being) must accuse. Some certain
person must take responsibility for the making of the accusation, not
an agency or an institution. This is the only valid means by which a
citizen may begin to face his accuser. Also, the injured party (corpus
delicti) must make the accusation. Hearsay evidence may not be
provided. Anyone else testifying that he heard that another party was
injured does not qualify as direct evidence.
5.
The
accusation must be made under penalty of perjury. If perjury cannot
reach the accuser, there is no accusation. Otherwise, anyone may accuse
another falsely without risk.
6.
To
comply with the five elements above, that is for the accusation to be
valid, the accused must be accorded due process. Accuser must have
complied with law, procedure and form in bringing the charge. This
includes court-determined probable cause, summons and notice procedure.
If lawful process may be abrogated in placing a citizen in jeopardy,
then any means may be utilized to deprive a man of his freedom. All
political dissent may be stifled by utilization of defective process.
7.
The
court must be one of competent jurisdiction. To have valid process, the
tribunal must be a creature of its constitution, in accord with the law
of its creation, i.e. (article III judge).Without the limiting factor
of a court of competent jurisdiction, all citizens would be in jeopardy
of loss of liberty being imposed at any bureaucrat's whim. It is
conceivable that the procedure could devolve to one in which the
accuser, the trier of facts, and the executioner would all be one and
the same.
The
first
six
elements above deal primarily with the issue of personal
jurisdiction. The seventh element (also element #2) addresses subject
matter and territorial jurisdiction. Subject matter jurisdiction is
conferred by acts controlled by law; territorial jurisdiction attaches
by venue of the parties in relation to the court and to any trans-
jurisdictional acts and/or activities of the parties (extended
territorial jurisdiction is conferred by controversial long-arm
statutes).
SUMMING
UP
the
LAW
and the POLITICS
Lacking
any
of
the seven elements or portions thereof, (unless waived,
intentionally or unintentionally) all designed to ensure against
further prosecution (double jeopardy); to inform court of facts alleged
for determination of sufficiency to support conviction, should one be
obtained. Otherwise, there is no lawful notice, and charge must be
dismissed for failure to state an offense. Without lawful notice, there
is no personal jurisdiction and all proceedings prior to filing of a
proper trial document in compliance with the seven elements is void. A
lawful act is always legal but many legal acts by government are often
unlawful. Most bureaucrats lack elementary knowledge and incentive to
comply with the mandates of constitutional due process. They will make
mistakes. Numbers beyond count have been convicted without benefit of
governmental adherence to these seven elements. Today, informations are
being filed and prosecuted by "accepted practice" rather than due
process of law.
See
Corpus
Juris
Secundum (CJS), Volume 7, Section 4, Attorney &
client: The attorney's first duty is to the courts and the public, not
to the client, and wherever the duties to his client conflict with
those he owes as an officer of the court in the administration of
justice, the former must yield to the latter. Clients are also called
"wards" of the court in regard to their relationship with their
attorneys. After you have read the foregoing, ask your attorney to see
a copy of "regarding Lawyer Discipline & other rules" Also Canons 1
through 9.
Corpus
Juris
Secundum
assumes courts will operate in a lawful manner.
If the accused makes this assumption, he may learn, to his detriment,
through experience, that certain questions of law, including the
question of personal jurisdiction, may never be raised and addressed,
especially when the accused is represented by the bar. (Sometimes
licensed counsel appears to take on the characteristics of a fox
guarding the hen house.)
Jurisdiction,
once
challenged,
is to be proven, not by the court, but
by the party attempting to assert jurisdiction. The burden of proof of
jurisdiction lies with the asserter. The court is only to rule on the
sufficiency of the proof tendered. Se McNutt v. GMAC, 298 US 178. The
origins of this doctrine of law may be found in Maxfield's Lessee v
Levy, 4 US 308.
NOTE: Today the courts
are unconcerned with questions such as whether or not the 16th or 17th
amendments were ever lawfully ratified. If the courts were to address
this type of question honestly, the government, with its huge
bureaucracy and patron special interests would be placed in jeopardy.
This potential threat is not allowed nor will it ever be. It is much
easier for the courts to label such potential threats as political
questions, point to the lateness of the clock and refuse to hear or
rule. Whatever the political jugernaut does, it uses the facade of law
to justify or reconcile it. The only way such questions will have force
and effect is if the general public becomes aware and concerned with
justice being based upon law and not just policy based on a facade of
law.
If
you
doubt
such words, please be assured that they are not just words
but are, in fact, and articulation of the unwritten, unspoken, present
public policy, as enforced by the courts in dealing with challenges to
governmental acts and authority. For documentation, see US v WAYNE
WOJTAS, 85 CR 48 in the US District Court for the Northern District of
Illinois, Eastern Division and Judge Shadur's opinion on the 16th
Amendment. You will see the beginnings and threat of disbarment of a
certain "aggressive" licensed attorney.
To
be
truly
effective in the courts in any challenge to governmental
power and authority, the challenger must possess a good understanding
of politics. This is especially so since government and the courts are
primarily concerned with a public perception of the balancing of the
scales of justice rather than the attainment of true justice under the
law.
Once
it
is
realized that the court is primarily concerned with
politics, it then becomes necessary for any challenger to become
proficient in the political arena. By politics, we speak not of the
electoral process, but of the politics of association.
Keeping
this
in
mind, and truly understanding the concept, a man
accused of breaking a "rule" for which he may suffer penalties of
imprisonment, fine and costs without benefit of trial or Constitutional
safeguards, may very will consider bringing a criminal charge against
himself
directly
in
court and thereby blunt his adversaries' attack. To the
uninitiated, this may sound like madness, but to the political scholar
destined to appear before a "master" to answer to alleged rule
violation of the unauthorized practice of law, the self-accusatory route
to
the
courts may be the only hope of victory; both legal and political.
Author
Unknown
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