FEDERAL JURISDICTION & RELATED
ISSUES
Article I, Section 8, Clause 17, provided Congress
exclusive federal legislative jurisdiction, municipal plenary (absolute)
powers, to exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may,
by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the
United States [Washington, D.C], and
to exercise like Authority over all Places purchased by the Consent off
the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards,
and other needful Buildings.
Pursuant to Article VI, Clause 2,
Congress's municipal legislative police powers do not apply within the boundaries of the
states of the Union, but they Do apply to the citizens of the District of Columbia and any federal
territory that is not within the jurisdiction of one of the several states of
the union of several
states, which is confirmed under Title 18 Criminal Code at Sections 5 and 7,
per definition of
territorial jurisdiction of the United States as follows:
18 U.S.C. Sec. 5. -
United States defined
The term "United
States", as used in this title in a territorial
sense, includes
all places and waters,
continental or insular, subject to the jurisdiction of the United
States, except the Canal
Zone
18 U.S.C. Sec. 7. - Special
maritime and territorial jurisdiction of
the United States defined
(3) Any lands reserved or acquired for the use
of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired
by the United States by consent of the
legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful
building.
The above is confirmed in the
Department of Justice's, United States Attorney's Manual, Title 9 Criminal Resource Manual, Section 662 through 666, so
they do in fact have knowledge of these facts. At the end of Section 664 the
following appears:
COMMENT: In summary, the United States may exercise
plenary criminal jurisdiction over lands within state borders:
A. Where it reserved such jurisdiction upon entry of the
state into the union;
B. Where, prior to February 1, 1940,
it acquired property for a purpose enumerated in the Constitution with the consent of the state;
C. Where it acquired property whether by purchase,
gift or eminent domain, and thereafter,
but prior to February 1, 1940, received a
cession of jurisdiction from the state; and
D.
Where it
acquired the property, and/or received the state's consent or cession of jurisdiction after February 1, 1940, and has filed the
requisite acceptance.
It is also confirmed under Article IV, Section 3, Clause
2 of the Constitution of the United States, where Congress shall have power to dispose of and make all
needful rules and regulations respecting the territory or other property belonging to the United
States. Applicability of those rules and the areas it shall apply in a criminal
proceeding is defined under the Federal Rules of Criminal Procedure Rule 54 (c)
by the statement
"as used in these rules an "Act of Congress" includes any act of
Congress locally applicable to and in
force in the District of Columbia, in Puerto Rico, in a territory or in an
insular possession", and is further
confirmed at Code of Federal Regulations (Internal Revenue Service) 26 CFR Section 31.3121 (e)-1, (a) and (b) as follows:
Sec. 31.3121(e)-1 State, United States, and citizen.
(a) When used in the regulations in this subpart, the term "State" includes the District of Columbia, the Commonwealth of
Puerto Rico, the Virgin Islands, the Territories of Alaska and Hawaii before their admission
as States, and (when used with respect
to services performed after 1960) Guam and American Samoa.
(b) When used in the regulations in this subpart, the term "United
States", when
used in a geographical sense, means the several states (including the
Territories of Alaska and Hawaii before their admission as States), the District of Columbia, the
Commonwealth of Puerto Rico, and
the Virgin Islands. When used in the regulations in this subpart with respect to services
performed after 1960, the term "United States" also includes Guam and
American Samoa when
the term is used in a geographical sense. The term "citizen of the United States" includes a citizen of the
Commonwealth of Puerto Rico or the Virgin Islands, and, effective January 1, 1961, a citizen of Guam or American
Samoa.
Cases, in Law and Equity, arising and this
Constitution other then municipal laws of Congress shall arise under Article III, Section 2, Clause 1, The judicial Power
shall extend to all Cases, in Law and Equity, (issues i.e. Taxes) arising
under this Constitution, the Laws of the United States (Title 26 Internal Revenue Code), and Treaties made, or which shall
be made, under their Authority;--to Controversies (whether you owe a tax or not) to which the United States shall be a Party.
Under the
Supremacy Clause Article VI, Clause 2, This Constitution, and the Laws of the
United States which
shall be made in Pursuance thereof, and all Treaties made, or which shall be
made, under the Authority
of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any
Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The
Constitution of North Carolina Article I, Section 19 mandates that No person
shall be taken, imprisoned,
or disseized of his freehold, liberties, or privileges, or outlawed, or exiled,
or in any manner deprived of his life,
liberty, or property, but by the law of the land.
In order for the Judicial Power to extend to controversies
to which the United States shall be party, the law must arise under the Constitution, Laws of
the United States, and Treaties made under their authority, and within their jurisdiction. 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 affecting Citizens in the
several 50 states of the Union. Caha v. United States, 152 U.S. 211, 215, 14 S.Ct. 513 (1894). This principle was perhaps best
expressed in Caha v. United States where the Court declared:
"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."
In
United States v. Benson, 495 F.2d 475 (5'hCir.
1974), in finding federal jurisdiction for a robbery committed at Fort Rucker, the court held:
"It is axiomatic that the prosecution must always
prove territorial jurisdiction over a crime in order to sustain a conviction herefor."
Finally, in Curry v. State, 111 Tex. Cr. 264, 12
S.W.2d 796 (1928), it was held that, in the absence
of proof that the state had ceded jurisdiction of a place to the United States,
the state courts had jurisdiction over
an offense.
Therefore, in federal criminal prosecutions involving
jurisdictional type crimes, the government must
prove the existence of federal jurisdiction by showing U.S. ownership of the
place where the crime was committed and state cession of jurisdiction. If the
government contends for the power to criminally prosecute for an offense
committed outside "its jurisdiction," it must prove an
extra-territorial application of the statute in question as well as a
constitutional foundation supporting the same. Absent this showing, no federal
prosecution can be commenced for offenses committed outside "its
jurisdiction."
In
the case of the United States v. Erie R.R. Co., 106 U.S. 327, 333, 1 S.Ct. 223
(1882) Justice Field wrote in his dissent:
"The power of the United States to tax is limited to
persons, property, and business within their jurisdiction, as much as that of a state is
limited to the same subjects within its jurisdiction."
The municipal jurisdiction of Congress only extends to
the limits as defined in the Constitution itself (see "1:8:17" and "4:3:2").
"No sanction can be imposed absent proof of
jurisdiction" [Stanard v. Olesen, 74 S. Ct.768]
"Once challenged, jurisdiction cannot be `assumed',
it must be proved to exist." [Stuck v. Medical
Examiners, 94 Ca2d 751.211 P2s 389]
"Jurisdiction,
once challenged, cannot be assumed and must be decided." [Maine v. Thiboutot, 100 S. Ct. 250]
"...
Federal jurisdiction cannot be assumed, but must be clearly shown." [Brooks v. Yawkey, 200 F. 2d 633]
"The law requires proof of jurisdiction to appear
on the record of the administrative agency and all administrative proceedings"
[Hagans v. Lavine, 415 U.S. 533]
"If any tribunal finds absence of proof of
jurisdiction over person and subject matter, the case must be dismissed."
[Louisville R.R.
v. Motley, 211 U.S. 149,29 S. Ct.
42]
Title 18, Section 7, Federal
Crimes & Criminal punishment specifies that the Òterritorial jurisdictionÓ
of the United States extends only outside the boundaries of lands belonging to
any of the 50 states, and Title 40, Section 255 specifies the legal conditions that must be fulfilled for the United
States federal government to have exclusive or shared jurisdiction within the area of lands belonging to the States of
the Union.
Under the Administrative Procedures
Act Title 5 Section 552 describes
in particular detail various items which must be published by federal agencies in the
Federal Register:
(E) each amendment, revision or repeal of the
foregoing. Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort
to, or be adversely affected by, a matter required to be published in the
Federal Register and not so published.
For the purpose
of this paragraph, matter reasonably available to the class of persons affected thereby is deemed
published in the Federal Register when incorporated by reference therein with
the approval of the Director of the Federal Register."
A "rule" for publication purposes is certainly
an agency requirement imposed on the public which implements or prescribes law. Pursuant to Section 552(a)(1)(D), "substantive
rules of general applicability"
[applicable to the general public in the 50 States] must be published in the Federal Register; an omission in this
respect means that the unpublished
rule is unenforceable against one without
notice:
(D)
substantive rules of general applicability adopted as authorized by law, and
statements of general policy or
interpretations of general applicability formulated and adopted by the agency;
One must also consider Code of Federal Regulations
(Internal Revenue Service) 26 CFR Section 601.702 (a)(1)
Publication in the Federal Register. Requirement,
which reads in part "the Internal Revenue Service" is required
under 5 U.S.C. 552 (a)(1) to separately state
and currently publish in the Federal
Register for the guidance of the public the following information:
(iv) "Substantive rules of general applicability
adopted as authorized by law..."
A closer look at the Implementing Regulation found at
Internal Revenue Service 26 CFR 601.702(2)(ii),
one finds the Effect of Failure to Publish:
"Except to the extent that
a person has actual and timely notice of the terms of any matter referred to in subparagraph (1) of this
paragraph which is required to be published in the Federal Register, such person is not required in any
manner to resort to, or be adversely affected by, such matter if it is not so published or is not
incorporated by reference therein pursuant to subdivision (i) of the subparagraph. Thus, for example, any such matter which imposes an obligation and which is not
so published or incorporated by reference
will not adversely change or affect a person's lights."
The
U.S. Government Printing Office has published a booklet entitled "How
Our Laws Are Made"
a product of the 105`h
Congress, 1st Session Document
105-14 published in 1998. On review of the part titled "Enacted Law"
one finds the following to wit:
"One off the important steps in the enactment of a valid law [versus prima facie invalid law is the requirement that
it shall be made known to the
people who are to be bound by it.
There would be no justice if the state were to hold its people responsible for
conduct
before it made known to them the unlawfulness of such
behavior. In practice, our laws are
published [in the
Federal Register] immediately upon their
enactment so that the public will be aware of them." [Clarification added]
Twenty-two
of the 50 titles of the U.S. Code have been revised and enacted into positive
law, and two have been eliminated by
consolidation with other titles. Titles that have been enacted into positive law are legal evidence of the law, and the courts
receive them as proof of those laws. A `positive law' as defined in Black's is a "law actually and specifically enacted or
adopted by proper authority_ for use by the government.
We now turn to Public Law 591, 83d Congress, approved
August 16, 1954, referred to in Code of Federal
Regulations (Internal Revenue Service) 26 CFR 1.0-1 as follows:
(a)
Enactment of law. The Internal Revenue Code of 1954 which became law upon
enactment of Public Law 591, 83d Congress, approved August 16, 1954, provides
in part as follows:
(a)(1)
The provisions of this Act set forth under
the heading "Internal Revenue Title" may be cited as the "Internal Revenue Code of
1954"
(d)
Enactment of Internal Revenue Title into law. The Internal Revenue Title
referred to in subsection
(a)(1) is
as follows: In general, the
provisions of the Internal Revenue Code of 1954 are applicable with respect to taxable years
beginning after December 31, 1953, and ending after August 16, 1954.
(b) Scope
of regulations. The regulations in this part deal with (1) the income taxes
imposed under subtitle A of the Internal Revenue Code of
1954, and (2) certain administrative provisions contained in subtitle
F of such Code
relating to such taxes.
For applicability of revenue laws we turn to Title 26
Internal Revenue Code, Section 7851 where we fmd the following:
(a) Subtitle A (1)(A)
Chapters 1, 2, 4, and 6 of this title shall
apply only with respect to taxable years beginning after December 31,
1953, and ending after the date of
enactment of this title,
(6)
Subtitle F (A) General rule - The provisions of subtitle F shall take effect on
the day after the date of enactment
of this title and shall be applicable with respect to any tax imposed by this
title. [Other than Subtitle A income
taxes]
It appears the construct of the
provisions in 26 CFR and 26 U.S.C. reads: The
Congress enacted the Internal Revenue
Code of 1954 on August 16th, 1954, and then about 14.7 nanoseconds later [or sometime during the day] terminated the
enactment on the very same day. The question for the courts now begs to be asked. How can an "invalid law
be a positive law" if a law actually and specifically enacted or adopted by proper authority for use by
the government is not listed in the Federal Register as legal evidence having force and effect.
The "assumptions" of
facts seem to gain strength over people when the `assumption' has been ongoing for a long period of time.
How can
this be, one might ask? The answer lies in letter drafted by former President
William H. Taft
requesting that the Congress create a new piece of legislation and proposed an
amendment to the Constitution.
The document has been published in the
Congressional Record-Senate June 16, 1909 Pages
3344-3345, and is the legislative intent and backbone of the creation of the 16th
Amendment. It states, in part:
"... it is now proposed to make up the deficit by the
imposition of a general income tax, in form and substance of almost exactly the same character as, that which in the
case of Pollock v. Farmers' Loan
and Trust Company (157 U. S.,
429) was held by the Supreme Court to be a direct tax [Unconstitutional], and therefore not within the power of the Federal
Government to Impose unless apportioned
among the several States
according to population." [Emphasis added] [Clarification added]
"The
decision of the Supreme Court in the income tax cases deprived the National
Government of a
power which, by reason of previous decisions of the court, it was generally
supposed that Government
had." [Emphasis added]
"I therefore recommend to the Congress that both
Houses, by a two-thirds vote, shall propose an amendment to the Constitution conferring the power
to levy an income tax upon the
National Government without apportionment among the
States in proportion to population." [Emphasis added]
"This course is much to be
preferred to the one proposed of reenacting a law once judicially declared to
be unconstitutional." [Emphasis added]
"Second, the decision in the Pollock case left power in the National
Government to levy an excise tax, which accomplishes the same purpose as a corporation income tax...
" [Emphasis added]
"I
therefore recommend an amendment to the tariff bill Imposing upon all [Federal]
corporations and
[Federal] joint stock companies for profit, except national banks (otherwise
taxed), savings banks, and building and
loan associations, an excise tax measured by 2 per cent on the net income of
such corporations. This is an excise tax upon the privilege of doing business
as an artificial entity and of freedom from
a general partnership liability enjoyed by those who own the stock." [Emphasis added] [Clarification added]
"The decision of the Supreme
Court in the case of Spreckels
Sugar Refining Company vs. McClain (192 U. S., 397), seems clearly to establish the principle that such a
tax as this is an excise tax upon
privilege and not a direct tax on property... "
When a Judicial Court needs to understand any law, one of
the first steps taken is to review what the legislature was seeking to achieve and the reasons
behind the law being created. President
Taft directed Congress to place an income
tax upon the `employees, officers, and elected officials of the `United States' [federal government] under federal
exclusive legislative jurisdiction. Pursuant to the Federal Rules of
Criminal Procedure Rule 54 (c) "Act of Congress" is defined as
follows:
"Act of Congress" includes any act of Congress
locally applicable to and in force in the District of Columbia, in Puerto Rico, in a
territory or in an insular possession. [Emphasis added]
The definition of an "Act of Congress" is in
line with President Taft's request above, where any act is applicable only to the
employees, officers and the elected official of the United States federal government and in force in the
District of Columbia where the seat of the National government lies, in
Puerto
Rico, in a territory or in an insular possession all under the exclusive
legislative jurisdiction of the federal
government under the plenary (or absolute) power of Congress.
A committee
was assembled by Attorney General Herbert Brownell, Jr.. Their detailed study
was reported in a
publication entitled ÒJurisdiction over Federal Areas within the States,Ó
April, 1956 (Volume I) and June, 1957 (Volume II). The committee's report demonstrates, beyond
any doubt, that the sovereign States and their laws are outside the legislative and territorial
jurisdiction of the United States, federal government. They are totally outside
the federal zone. A plethora of evidence is found in the myriad of cited court cases (700+) which
prove that the United States cannot exercise exclusive legislative jurisdiction outside territories
or places purchased from, or ceded by, the 50 States of the Union. Attorney General Brownell described the
committee's report as an "exhaustive and analytical exposition of the law in this hitherto little explored
field". In his letter of transmittal to President Dwight D. Eisenhower, Brownell summarized the two
volumes as follows:
Together, the two parts of this Committee's report and the
full implementation of its recommendations will provide a basis for reversing in many areas the
swing of "the pendulum of power *
* * from our states to the central government" to which you referred in
your address to the Conference of State Governors on June 25, 1957.
THE FINAL KEY ÉÉÉÉÉÉ.. YOU DECIDE .
26 U.S.C. Sec. 7441. - Status
There is hereby established,
under article I of the Constitution of the United States, a court of record to be known as the United
States Tax Court. The members of the Tax Court shall be the chief judge and the judges of the
Tax Court.
COMMENT AND EXPLANATION:
Tax Court is not an Article
III Judicial Court, it is an Article I Legislative Court without judicial power. Tax Court will not rule on constitutional
issues regarding taxation, because they have no judicial authority (power). Tax Court can only decide how much taxes
you owe, not whether you owe it or not. The issue of taxation is a constitutional issue: "Article 3, Section 2, Clause 1, The Judicial Power
shall extend to all Cases,
in Law and Equity, (Issues) arising under this Constitution (such as
taxation), the Laws of the United States (Title 26 Internal Revenue Code), and
Treaties made, or which shall be made, under
their authority; É. to Controversies (such as whether you owe a tax or not) to which the United States shall
be a Party.
26 U.S.C. Sec. 7442. - Jurisdiction
The Tax Court and its divisions
shall have such jurisdiction as is conferred on them by this title, by chapters 1, 2, 3, and 4
of the Internal Revenue Code of 1939, by title II and title III of the Revenue Act of 1926 (44 Stat. 10-87), or by laws
enacted subsequent to February 26, 1926
COMMENT AND EXPLANATION:
The Tax Court does not have jurisdiction conferred on
them by the "Abolished" Chapters 1, 2, 3, and 4 of the Internal Revenue
Code of 1954 (MISSING ABOVE) to hear cases regarding how much tax you owe. There are no issues to resolve
regarding how much taxes are owed, because the law does not exist.
[Code of Federal Regulations]
[Title 26, Volume 19]
[Revised as of April 1, 2001]
From
the U.S. Government Printing Office via GPO Access [CITE: 26CFR601.102]
CHAPTER I--INTERNAL REVENUE
SERVICE, DEPARTMENT OF THE TREASURY-
PART 601--STATEMENT OF PROCEDURAL
RULES--Table of Contents
Subpart
A--General Procedural Rules
Sec. 601.102 Classification of taxes collected by the
Internal Revenue Service.
(a)
Principal divisions. Internal revenue taxes fall generally into the following
principal divisions: (1) Taxes collected by assessment.
(2) Taxes collected by means of
revenue stamps.
(b) Assessed taxes. Taxes collected principally by
assessment fall into the following two main
classes: (1) Taxes within
the jurisdiction of the U.S. Tax Court. These include:
(i) Income and profits taxes
imposed by Chapters 1 and 2 of the 1939 Code and taxes imposed by subtitle A of the 1954 Code, relating to income taxes.
(ii)
Estate taxes imposed by Chapter 3 of the 1939 Code and Chapter 11 of the 1954
Code. (iii) Gift tax imposed by Chapter 4 of the 1939 Code and Chapter 12 of
the 1954 Code. (iv) The tax on generation-skipping
transfers imposed by Chapter 13 of the 1954 Code. (v) Taxes imposed by
Chapters 41 through 44 of the 1954 Code.
FOR CLARIFICATION PURPOSES:
These mandatory taxes are imposed by the 1939 and 1954 Code, upon the employees,
officers, and elected officials of
the United States federal government and locally applicable to and in force in
the District of Columbia, in Puerto Rico, in a territory or in an insular
possession under the federal exclusive legislative jurisdiction of Congress's
plenary (absolute) municipal power.
(2)
Taxes not within the jurisdiction of the U.S. Tax Court.
Taxes not imposed by Chapter 1, 2, 3, or 4 of the 1939
Code or Subtitle A or Chapter 11 or 12 of the 1954 Code are within this class, such
as:
(i) Employment taxes.
(ii) Miscellaneous excise taxes
collected by return.
FOR CLARIFICATION PURPOSES:
Taxes not imposed by Chapter 1 - Normal Taxes, Chapter 2 - Tax on self-employment
income, Chapter 3 - withholding of
tax on non-resident aliens and foreign corporations, Chapter 4 - Abolished of the 1939 Code because they never
imposed in the first place since they are considered an excise tax,
which was declared unconstitutional by the Supreme Court; "or Subtitle A
or Chapter 11 - estate tax, Chapter 12 - gift tax of the
1954 Code. Removed with the belief that, "we better remove these, before the public catches on and find out
Congress has been collecting an illegal tax all these years." The
above can not be within the jurisdiction of the Tax Court, because you never owed any taxes to begin with.
(i)
Employment taxes = voluntary
withholding W-2 at source by employer.
(ii) Miscellaneous
excise taxes collected by return = voluntarily filed
1040 return, where such excise tax has been
declared unconstitutional unless it was apportioned among the states according
to the population. Therefore it can
not be mandatory, but strictly voluntary for it not to be unconstitutional.
(3) The difference between these
two main classes is that only taxes described in subparagraph (1) of this paragraph, i.e., those within the jurisdiction of the Tax Court, may be contested before
an independent tribunal prior to
payment. Taxes of both classes may be contested by first making payment, filing
claim for refund, and then bringing suit to recover if the claim is disallowed
or no decision is rendered thereon within
six months.
[32
FR 15990, Nov. 22, 1967, as amended at 35 FR 7111, May 6, 1970; 46 FR 26053, May 11, 1981; T.D. 8685, 61 FR 58008,
Nov. 12, 1996]
FOR
CLARIFICATION PURPOSES:
Anytime
someone receives a deficiency notice from the
Internal Revenue Service demanding a tax due, the IRS gives everyone the opportunity to
go to Tax Court within 90 days, otherwise you are at their mercy. This is why no-one can go to Tax Court
if they voluntarily filed, because Tax Court does not have jurisdiction to
decide how much you owe, when you didn't owe it in the first place. You also cannot take it to a United States District Court until you have
resolved all your
remedies at the administrative level by going to Tax Court. So it would appear
in the wise old words, Òyou are stuck my friend.Ó
IS
THE ANSWER IS TO STOP FILING Ð YOU
MUST MAKE UP YOUR OWN MIND Ð This is not a legal opinion, designed to have,
foster, or encourage anyone to stop filing. It is merely the law, as
published. YOU MUST MAKE YOUR OWN DECISIONS IN THIS REGARD. For further
information go to the contact / home page of this site.
DEFINITIONS
Federal Register Bulletin board for the public of "Federal
Statutes at Large, United States Code, Code
of Federal Regulations, Public Laws, Congressional Record, Treaties,
Presidential Executive Orders, Proclamations, anything that has to do with the Constitution of the United States of
America and a lot more from the day
the Constitution was written to the present".
U.S.C. United
States Code
CFR Code of Federal Regulations
5 U.S.C. Government Organization and Employees (Administrative
Procedures Act)
18 U.S.C._________ Crimes and Criminal
Procedure (Federal Criminal Code)
26
U.S.C. Internal
Revenue Code
Subtitle
A Income Taxes - Abolished
Chapter I Normal Taxes and Surtaxes
Chapter
II Tax on Self-Employment Income
Chapter
IV Abolished
Chapter VI Consolidated Returns
Conclusion
It is a 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 Caha v. United States, 152 U.S. 211, 215, 14 S.Ct. 513 (1894); American Banana Company v. United Fruit
Company, 213 U.S. 347, 357, 29 S.Ct. 511
(1909); United States v. Bowman, 260
U.S. 94, 97, 98, 43 S.Ct. 39 (1922); Blackmer
v. United States, 284 U.S. 421,
437, 52 S.Ct. 252 (1932); Foley
Bros. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575 (1949); United
States v. Spelar, 338 U.S. 217, 222,
70 S.Ct. 10 (1949); and United States v.
First National City Bank, 321 F.2d 14, 23 (2nd Cir. 1963). This
particular principle of law is expressed
in a number of cases from the
federal appellate courts; see McKeel v. Islamic Republic of Iran, 722 F.2d 582, 589 (9th Cir.
1983) (holding the Foreign Sovereign Immunities Act as territorial); Meredith v. United States, 330 F.2d 9, 11 (9th Cir. 1964)
(holding the
Federal Torts Claims Act as territorial); United States v. Cotroni, 527 F.2d 708, 711 (2nd Cir. 1975)
(holding federal wiretap laws as territorial); Stowe v. Devoy, 588 F.2d 336, 341 (2nd Cir. 1978); Cleary v. United States Lines,
Inc., 728 F.2d
607, 609 (3rd Cir. 1984) (holding federal age discrimination laws as territorial); Thomas v. Brown
& Root, Inc., 745 F.2d 279, 281 (4th Cir. 1984) (holding same as Cleary, supra); United States v. Mitchell, 553 F.2d 996, 1002 (5th Cir. 1977) (holding marine mammals protection act as territorial); Pfeiffer v. William Wrigley,
Jr., Co., 755 F.2d 554, 557 (7th Cir.
1985) (holding age discrimination laws as territorial); Airline Stewards & Stewardesses Assn. v. Northwest Airlines,
Inc., 267 F.2d 170, 175 (8th Cir. 1959) (holding Railway Labor Act as
territorial); Zahourek v.
Arthur Young and Co., 750 F.2d 827, 829 (10th Cir. 1984) (holding age
discrimination laws
as territorial); Commodities Futures Trading Comm. v. Nahas, 738 F.2d 487, 493 (D.C.Cir. 1984) (holding commission's subpoena power under federal law as territorial);
Reyes v.
Secretary of H.E. W, 476 F.2d 910, 915 (D.C.Cir. 1973) (holding
administration of Social Security Act as territorial);
and Schoenbaum v. Firstbrook, 268 F.Supp. 385, 392 (S.D.N.Y. 1967)
(holding securities act as territorial). This principle was perhaps best expressed in Caha v. United States, 152 U.S., at 215, where
the Court declared:
"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."
However,
because of treaties as well as express statutory language, the federal drug
laws operate extraterritorially; see United States v. King, 552 F.2d 833, 851 (9th Cir. 1976). The United States has territorial
jurisdiction only in Washington, D.C., the
federal enclaves within the States, and in the territories and insular
possessions of the United States. However, it has no territorial jurisdiction
over non-federally owned areas inside the
territorial jurisdiction of the States within the American Union, and this
proposition of law is supported by literally hundreds of cases.
As a general rule, the power of the United States to
criminally prosecute is, for the most part, confined to offenses committed
within "its jurisdiction" in the absence of treaties. This is born
out simply by 18 U.S.C. section 5 which defines the term "United
States" in clear Jurisdictional terms. Further. ¤7 of the same federal criminal code contains the fullest statutory
definition of the "jurisdiction of the United States." The U.S. district courts have
jurisdiction of offenses occurring within the "United States" pursuant to 18 U.S.C. ¤3231.
DRAW YOUR OWN CONCLUSIONS
THIS IS THE LAW OF THE LAND
DO YOU STILL BELIEVE IN THE TAX
SYSTEM Ð IT IS A VOLUNARY SYSTEM, MANDATORILY ENFORCED. THIS IS MEAN TO
INFORMM ONLY, AND IS NOT INTENDED TO BE AN EXHAUSTIVE EXAMINATION OF THE LAW,
NOR IS IT DESIGNED TO APPLY TO ANYONEÕS PARTICULAR CIRCUMSTANCES. TAKING
ACTION WITHOUT COUNSEL IS NOT PRUDENT, BUT YOU MUST MAKE YOUR OWN DECISIONS
BASED ON YOUR RESEARCH OF THE LAW.
THIS IS A WAIVER PLEASE READ IT CAREFULLY, AND SEEK LEGAL COUNSEL WITH ANY
QUESTIONS BEFORE TAKING ANY ACTION. COLLATERAL RESEARCH IS ENCOURAGED.
CONCLUSIVE, UNDENIABLE FACTS Ð YOU MAKE THE
DETERMINATION
The following was copied and pasted from the
Department of Justice web site. It confirms that the Department of Justice has knowledge of everything
discussed above regarding Congress's exclusive legislative jurisdiction, where and to whom it shall apply.
Department of Justice > USAM > Title
9 > Criminal Resource Manual prey I next
http://www.usdoj.gov/usao/eousa/foia reading
room/usam/title9/erm00662.htm 662 Maritime, Territorial and Indian Jurisdiction -- Generally
Jurisdiction
over most personal and property crimes within our Federal system is vested in
the states. The Federal government enacts
criminal laws primarily for the protection of its own functions (e.g., 18
U.S.C. ¤ 1001); personnel (e.g., 18
U.S.C. ¤ 1114); and property (e.g., 18
U.S.C. ¤ 641). It intrudes into the area generally left to the states only where special circumstances warrant its
providing auxiliary law enforcement
assistance to the states unable to act beyond their borders (e.g., 18 U.S.C. ¤¤ 659 [Interstate or foreign shipments by carrier; State
prosecutions], 2113 [Bank robbery and incidental crimes], 2314 [Transportation of stolen goods, securities,
moneys, fraudulent State tax stamps, or articles used in counterfeiting]). For Federal jurisdiction to
exist, the underlying conduct must be based upon or linked to some "nexus," such as use of the mail,
18 U.S.C. ¤ 1341, interstate commerce, 18 U.S.C. ¤ 2314, or Federal insurance, 18 U.S.C. ¤ 2113.
There are, in addition, certain
instances in which the special relationship the United States Government bears to the site of the offense provides the
rationale and basis for the exercise of plenary criminal jurisdiction.
It is with this latter class of offenses that this chapter is concerned.
663 Special Maritime and Territorial Jurisdiction
A number of Title 18 sections
specifically declare certain conduct to be a Federal crime if committed "within the special maritime and territorial
jurisdiction of the United States." See, e.g., murder, 18 U.S.C. ¤ 1111. In some instances, the Assimilative Crimes
Act, 18 U.S.C. ¤ 13, is also applicable. See
also, 15 U.S.C. ¤ 1175, [Specific jurisdictions within which
manufacturing, repairing, selling, possessing, of gambling devices]; 15 U.S.C.
¤ 1243, [Manufacture, sale, or possession of switchblade knifes]; 16 U.S.C. ¤ 3372 [fish or wildlife or plants were
taken, possessed, transported, or sold].
The
term "special maritime and territorial jurisdiction of the United
States" is defined in eight subsections of 18 U.S.C. ¤ 7. These
subsections relate to maritime jurisdiction, 18 U.S.C. ¤¤ 7(1), 7(2); lands and buildings, 18 U.S.C. ¤ 7(3); Guano Islands, 18 U.S.C.
¤ 7(4); aircraft, 18 U.S.C. ¤ 7(5); spacecraft,
18 U.S.C. ¤ 7(6); places outside the
jurisdiction of any nation, 18 U.S.C. ¤ 7(7); and foreign vessels en
route to and from the United States, 18 U.S.C. ¤ 7(8).
664 Territorial Jurisdiction
Of
the several categories listed in 18 U.S.C. ¤ 7, Section 7(3) is the most
significant, and provides:
The term "special maritime and territorial
jurisdiction of the United States," as used in this title, includes:
(3) Any
lands reserved or acquired for the use of the United States, and under the
exclusive or concurrent jurisdiction
thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which
the same shall be, for the erection of a fort, magazine, arsenal,
dockyard, or other needful building.
As is readily apparent, this subsection, and particularly
its second clause, bears a striking resemblance to the 17th Clause of Article I, Sec. 8 of the
Constitution. This clause provides:
The
Congress shall have power. . . To exercise exclusive Legislation
in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, be Cession
of particular States, and the acceptance of Congress, become the Seat of the Government of the
United States, and to exercise like
Authority over all Places purchased by
the Consent of the Legislature o f the State in which the Same shall be, for the Erection of
Forts, Magazines, Arsenals, dock-Yards, and other needful
Buildings. (Emphasis
added.) The constitutional phrase "exclusive legislation" is the equivalent of the statutory
expression "exclusive jurisdiction." See James v. Dravo Contracting Co., 302 U.S. 134, 141 (1937), citing, Surplus Trading Co. v.
Cook, 281 U.S. 647, 652 (1930).
Until the
decision in Dravo,
it had been
generally accepted that when the United States acquired property with the consent of the state for
any of the enumerated purposes, it acquired exclusive jurisdiction by operation
of law, and any reservation of authority by the state, other than the right to
serve civil and criminal process, was
inoperable. See Surplus Trading Co. v. Cook, 281 U.S. at 652-56. When Dravo held that a state might reserve
legislative authority, e.g., the right to levy certain taxes, so long as that
did not interfere with the United States' governmental functions, it became
necessary for Congress to amend 18 U.S.C. ¤ 7(3), by adding the words "so as," to restore
criminal jurisdiction over those places previously believed to be under exclusive Federal legislative
jurisdiction. See H.R. Rep. No. 1623, 76th Cong., 3d Sess. 1 (1940); S. Rep. No. 1788, 76th Cong., 3d
Sess. 1 (1940).
Dravo also settled that the phrase
"other needful building" was not to be strictly construed to include
only military and
naval structures, but was to be construed as "embracing whatever
structures are found to be necessary in the performance of the function of the Federal
Government." See James v. Dravo Contracting Co., 302 U.S. at 142-43. It therefore
properly embraces courthouses, customs houses, post offices and locks and dams for navigation purposes.
The "structures"
limitation does not, however, prevent the United States from holding or
acquiring and having jurisdiction over land
acquired for other valid purposes, such as parks and irrigation projects since Clause
17 is not the exclusive method of obtaining jurisdiction. The United States may
also obtain jurisdiction by reserving it
when sovereign title is transferred to the state upon its entry into the Union
or by cession of jurisdiction after
the United States has otherwise acquired the property. See Collins v.
Yosemite Park Co., 304 U.S. 518, 529-30 (1938); James
v. Dravo Contracting Co., 302 U.S. at
142; Surplus Trading Co. v. Cook, 281 U.S. at 650-52; Fort
Leavenworth R.R. Co. v. Lowe, 114 U.S. 525, 52627, 538, 539 (1885).
The United States may hold
or acquire property within the borders of a state without acquiring
jurisdiction. It may acquire title to land necessary for the performance of its
functions by purchase or eminent domain without the state's consent. See Kohl v. United States, 91 U.S. 367, 371, 372 (1976). But it does
not thereby acquire legislative jurisdiction by virtue of its proprietorship.
The acquisition of jurisdiction is dependent on
the consent of or cession of jurisdiction by the state. See Mason Co. v. Tax Commission,
302 U. S. 97 (1937); James v. Dravo Contracting Co., 302 U. S. at 141-42.
State
consent to the exercise of Federal jurisdiction may be evidenced by a specific
enactment or by general
constitutional or statutory provision. Cession of jurisdiction by the state
also requires acceptance by the United
States. See Adams v. United States, 319
U.S. 312 (1943); Surplus Trading Co. v.
Cook, 281 U.S. at 651-52. Whether
or not the United States has jurisdiction is a Federal question. See Mason Co. v. Tax Commission, 302
U.S. at 197.
Prior to
February 1, 1940, it was presumed that the United States accepted jurisdiction
whenever the state offered it because the donation was deemed a benefit. See
Fort Leavenworth R. R. Co. v. Lowe, 114 U. S. at 528.
This presumption was reversed by enactment of the Act of February 1, 1940,
codified at 40 U.S.C.
255. This statute requires the head or authorized officer
of the agency acquiring or holding property to file with the state a formal acceptance of such
"jurisdiction, exclusive or partial as he may deem desirable," and further
provides that in the absence of such filing "it shall be conclusively
presumed that no
such jurisdiction has been acquired." See Adams v. United States, 319 U.S. 312 (district court is without jurisdiction to prosecute
soldiers for rape committed on an army base prior to filing of acceptance prescribed by statute). The
requirement of 40 U.S.C. ¤ 255 can also be fulfilled by any filing satisfying state law. United
States v. Johnson, 994 F.2d 980,
984-86 (2d Cir. 1993). The enactment of 40 U.S.C. ¤ 255 did not
retroactively affect jurisdiction previously acquired. See Markham v. United States, 215 F.2d 56 (4th Cir.), cert. denied, 348 U.S. 939 (1954); United States v. Heard, 270 F. Supp.
198, 200 (W.D. Mo. 1967).
COMMENT:
In summary, the United States may exercise plenary criminal jurisdiction over
lands within state borders:
Where it reserved
such jurisdiction upon entry of the state into the union;
Where, prior to February 1, 1940,
it acquired property for a purpose enumerated in the Constitution with the
consent of the state;
Where it acquired property whether
by purchase, gift or eminent domain, and thereafter,
but prior to February 1, 1940, received a cession of jurisdiction from the
state; and
Where it acquired the property,
and/or received the state's consent or cession of jurisdiction after February
1, 1940, and has filed the requisite acceptance.
665 Determining Federal
Jurisdiction
When instances are reported to the United States Attorney
of offenses committed on land or in buildings occupied by agencies of the Federal government -- unless the crime reported is a Federal offense regardless of where committed,
such as assault on a Federal officer or possession of narcotics -- the United States has jurisdiction only if the land or building
is within the special territorial jurisdiction of the United States.
PRACTICE
TIP: A convenient method of determining the jurisdictional status is to contact
an appropriate attorney at or with the Agency having custody of the
land. If the land is other than a military
base, the regional counsel's office of the General Services Administration
usually has the complete roster of all
Federal lands and buildings in its region and can frequently provide a list if
requested to do so.
If the land in question is part
of a military base, contact with the post
Staff Judge Advocate may be helpful. If the military personnel in the field or
the field attorneys of the agency having responsibility for the land are
unable to render assistance, the Office of
Enforcement Operations of the Criminal Division should be called. Each United
States Attorney would be well advised to request from each agency within
the district a report on the jurisdictional
status claimed for each of its facilities and assurance that documentation is available.
666 Proof of Territorial
Jurisdiction
There has
been a trend to treat certain "jurisdictional facts" that do not bear
on guilt (mess
rea or actus
revs) as
non-elements of the offense, and therefore as issues for the court rather than
the jury, and to
require proof by only a preponderance that the offense was committed in the territorial jurisdiction of the court to establish
that venue has been properly laid. See
United States v. Bowers, 660 F.2d
527, 531 (5th Cir. 1981); Government
of Canal Zone v. Burjan, 596
F.2d 690, 694
(5th Cir, 1979); United
States v. Black Cloud, 590 F.2d 270 (8th Cir. 1979) (jury question);
United States v. Powell, 498 F.2d 890, 891 (9th Cir. 1974). The court in Government
of Canal Zone v. Burjan, 596 F.2d at 694-95, applied the preponderance test to
determinations of whether or not the
offenses took place within the Canal Zone which established not merely proper venue but subject matter jurisdiction as
well. Other cases, however, hold that the issue of whether the United States has jurisdiction over the
site of a crime is a judicial question, see United States v.
Jones, 480 F.2d 1135, 1138 (2d
Cir. 1973), but that the issue of whether the act was committed'within the
borders of the Federal enclave is for the jury and must be established beyond a reasonable doubt. See United States v. Parker, 622 F.2d 298 (8th Cir. 1980); United States v. Jones, 480 F.2d at 1138. The law of your Circuit must be
consulted to determine which approach is followed in your district.
The decision
in Burjan should be viewed with caution. The analogy between
territorial jurisdiction and venue has much
to recommend it. Nevertheless, it is important to recognize that the two are not of equal importance. As the Burjan court noted, citing Fed. R. Crim. P. 12, subject matter
jurisdiction is so important that it cannot be waived and may be noticed at any
stage of the proceeding, see Government
of the Canal Zone v. Burjan, 596
F.2d at 693, whereas the Ninth
Circuit in Powell rested its ruling that venue need be proved by only a
preponderance on the
relative unimportance of venue as evidenced by its waivability. There is a
clear distinction between
the question of which court of a sovereign may try an accused for a violation
of its laws and
whether the sovereign's law has been violated at all.
Proof of territorial jurisdiction may be by direct or
circumstantial evidence, and at least at the trial level may be aided by judicial notice. See United States v. Bowers, 660 F.2d at 530-31; Government
of Canal Zone v. Buijan, 596 F.2d at 694. Compare Government of Canal Zone v. Bur/an, 596 F.2d 690 with United
States v. Jones, 480 F.2d 1135, concerning the role judicial notice may play on appeal.
