U.S. v. Kalash - Drug Law Constitutionality and Other Unconventional Defenses

Kalash With Constitution vs. U.S. Govt. With Guns

So...
My big thread is gone.
:(

There was a lot of research there - and a lot of information that I'd hope to keep.... links to resources, studies, etc.

Alas...
Starting over...


Briefly - I was arrested in Feb. 2007 for MDMA distribution along with 4 co-defendants (including my supplier, my investor, and 2 kids I hadn't ever met.)

The charges include 5 counts of actual sales - amounting to 1,857 pills, for a total amount of $12,890.

The conspiracy charge is for 4,857 pills (and includes 3,000 pills that the other 2 kids had when arrested).
As the charges are federal, this is converted into weight - and we're charged with 1,117g of MDMA.

The offense level is 28.


I fought to get rid of my attorney for about 3 months, finally succeeded, only to be given another one against my will.
After another 4 months, I finally won the "right" to represent myself in court - so that I could file a demurrer (motion to dismiss the case, because the charges do not cite an actual "crime").
I filed one on my own...
http://mike.revolutioni.st/docs/9007.pdf
The government's reply is here;
http://mike.revolutioni.st/docs/opposition.pdf
I followed up with a reply brief that introduced additional arguments - in violation of criminal procedure - this violation being voluntarily waived (permitted) by both the court and the prosecutor.
http://mike.revolutioni.st/docs/9007SR2.htm
Their follow up reply is here;
http://mike.revolutioni.st/docs/suppop.html

The court denied my motion;
http://mike.revolutioni.st/docs/motiondenial.html

I signed the 5th revision of the plea agreement offered by the prosecutor - a conditional plea putting me at offense level 23; this is about 46ish months, but I retain my right to appeal.
The court's denial of my motion has a lot of inconsistencies with the law, invalidates itself a few times over, and uses the effects of the law to justify the creation of the law.
The main objection I have to the court's ruling is that the court claims it is "hesitant" to recognize any property right not subject to governmental control.

This ruling - as worded by the court - invalidates any and all property rights of the people... claiming that there is no property government cannot seize and control, regardless of private ownership - and they may punish anyone for possessing their private property after government agents have taken this property by violent force.
The nature of the claim is that all property is "owned" by government and no one may use/possess/manufacture/distribute/destroy/buy/sell/etc. any property without first obtaining permission (license) from its true owner - government.
This means that there are no property rights at all, only the "privilege" of property "ownership" granted to the people by Government.
This is in direct opposition to the Constitution - particularly the 5th Amendment... And is one of the fundamental pillars of Communism.

The court also says that the government's statistics (from the 1980's - as well as 2001, based upon Dr. Ricaurte's fraudulent research) can be presented as fact, and no scientific evidence countering these statistics may be provided by myself in my defense.
This is paramount to permitting government to bear false witness/commit perjury with impunity, while I'm expected to defend myself against all their fictitious claims without resorting to any facts.

The court also claims that "crimes" do not require victims - and relies upon a gun possession case where a convicted felon is convicted of illegal possession of a gun.
The case quoted has no bearing upon the current situation because I was/am not a convicted felon that has had any right suspended or revoked by due process of law.
The government cannot charge me with the "crime" of exercising a Constitutionally protected right when this right has not been alienated via due process.
I maintain that I did nothing other than control my private property without governmental approval.
This is a fundamental exercise of my property rights - the right to control property regardless of the approval of others, so long as my control of the property in question does not violate the rights of any non-consenting person.

The court also claims that the federal prosecutor must press charges in all "crimes against the United States" yet waives the requirement that a crime must have taken place which causes "distinct and palpable harm" to the United States.
Here is where the court uses illogical circular reasoning (drug sales take money from legitimate commerce and put it into an illicit market - therefore drugs harm the economy and may - by means of "rational review" - be prohibited by Congress under their Interstate Commerce powers. Prior to the enactment of the law, however, drug sales WERE legitimate commerce. The law's existence justifies the creation of the law; without the law, the justification for the law dissolves.) to make the claim that Congress may violate ANY Constitutionally protected right if a "rational review" shows that this may assist Congress in achieving a "legitimate purpose" - i.e. fulfill one of their enumerated responsibilities/powers.
This ruling is in direct conflict with the Constitution - as well as the supreme court ruling in Schick vs. United States {(1904) 195 US 65, 49 L. Ed. 99, 24 S. Ct. 826}.
The 3rd district court has no authority to over-rule the Supreme court.

The court also makes a claim that violations of the drug laws are "malum in se" not "mala prohibita"
In other words, the drug laws cite an "actual wrong" that is not subject to review...
Drugs are BAD because they are BAD. Period. This is not subject to challenge.
Mala prohibita would mean that the drug laws made drugs bad... That drugs are BAD because they are prohibited.
The court relies upon 2 Circut court rulings to back its contention in this matter.
However, a Supreme court ruling from 1922 shows that the attempted regulation of "drugs" is not law that defines acts which are malum in se, but defines acts of a "police power" - power that does not exist within the federal government (as all powers of the Federal Government are enumerated within the Constitution) - that seek to punish a "social betterment"
The supreme court ruled, essentially, that drug laws are laws against class mobility... Laws of oppression that surely must be over turned if the Constitution is to remain the Supreme Law of the Land.
The court makes comment that the purpose of the bill of rights was to protect against oppressive legislation. I don't know how much more oppressive legislation can be than to "prohibit" and/or punish social betterment (ensure that the poor remain poor, the wealthy remain an elitist class that cannot be attained by means which have proved to elevate one from the "lower classes" to the ranks of the "upper classes" or wealthy - or punish one for having done so).



That's my current position (more or less) on my appeal.

I NEED HELP WITH THE APPEAL.
If anyone knows any Federal Appellate attorneys that want to take up a case against ever expanding government powers, as well as attempt to repeal the drug laws (Dec. 5th was the 75th anniversary of the repeal of the 18th amendment's prohibition of alcohol), PLEASE let me know!
My attorney has told me that no public defender (appointed counsel) is going to be able to (by Bar license restriction) make these arguments.
Therefore I MUST have some other source of counsel if I'm to proceed with the appeal (at the very least I need assistance of counsel to aide me with the procedural process.)
mike (at) revolutioni (dot) st


Update;

Sentencing is currently scheduled for Dec. 15th (pushed back from Oct. 20th) - but this is likely to be pushed back due to inconsistencies between what the prosecutor has agreed to with my attorney, and what they have actually filed.
Due to this inconsistency (as well as false information being in the prosecutor's recommendation, namely related to the monetary amounts), my attorney is requesting a delay in sentencing.
The prosecutor agreed to the postponement of sentencing - however the judge may deny this request.
I should find out by Wed. next week.
 
Thread merged with Kalash's new thread.

Kalash, keep us posted - and best of luck.
 
Sounds like you're pretty smart, maybe you should consider law school when you get out
 
Sounds like you're pretty smart, maybe you should consider law school when you get out

That's all well and good - except that a felony conviction prevents me from taking the bar exam in most states (moral review - you can't be a lawyer (or even take the test to become one) if the Bar Board doesn't believe you're "moral" enough).

We'll see where I end up after all this - but law school could be a complete waste of time if I can't take the bar exam...
Something I wouldn't know until after I'd completed law school...

Doesn't that seem to be how everything's working these days? Spend a couple (tens of) thousands of dollars and THEN we'll let you know if you can use what you spent your money on...


Last night I sent a letter to the ACLU, LEAP's organizer and my contact for when I spoke at the Charles C. Lynch protest downtown LA back in October;
http://www.youtube.com/watch?v=pUust8z0PU8

Which makes it blatantly obvious that I'm not a public speaker >_<

Hopefully one of those people will get me some kind of lead for help with the appeal.
 
Wow, I read the gov's response to your motion to dismiss and they lay it out like they knew how much you sold each day you sold some. Did you guys sell to a undercover or CI each time?
 
Let's not have any posted info here that is not part of the public record on this case. The safest assumption, seeing as there has not been a conviction or an accepted guilty plea, is that he did not at any time distribute controlled substances to anyone.
 
Well Good Luck Kalash, I hope everything works out for you,
Im glad somebody has taken a stand like this in the courts.

After the dust settles maybe you should consider having people fill out [way to tired right now, thing that a bunch of people sign to get stuff done] and consider suing the government for treason due to it not following the Constitution
 
Johnny - I have signed an accepted Conditional Guilty plea - giving me the right to appeal, but there is one of my co-defendants that has yet to plea...

Of course - with 3 pleas on the table, and 1 co-defendant left, there's not much of a case for them to make, but that's the way things are.

All that's left for me (at the district court level) is Sentencing - which has just been moved from Dec. 15th to March 9th.
I've got another 3ish months to work on/finish up my appeal.

So - to quickly clarify a few things, without exposing anything new, relevant to the remaining defendant - it was an FBI informant, not an undercover FBI agent, and yes, they knew exactly what we gave them - # of pills, weight of pills (required under the federal statutes) and the $ paid for the pills (though the prosecutor can't seem to get the $ amount right - he's exaggerated by over $3,000 in his sentencing recommendation... At least... he has according to the indictment and the case file and my recollection...)


I haven't questioned the "facts" of the case yet - only the law and the perspective. (The total sales price of the pills not withstanding, as that's an obvious error, not a statement of fact.)
There is no reason for me to question "facts" when there is video tape of every transaction we did with the informant - and the judge ruled that I had no right to privacy being in the informant's apartment behind closed doors (reasonable expectation of privacy is obviously no longer a factor in determining 4th amendment rights).

My issue is that the plaintiff - government - has made a false claim over my property... To control my private property without my consent, due process, nor just compensation.
Their claim is also retroactive - as I remained in control of my property only until I had been compensated for it (government recognized my right to the property in question and compensated me justly for it), and only after the fact raised issue to my having controlled my property (which is now theirs) prior to them coming into ownership of the property.

The Controlled Substances Act - whereby the Government's claim to "control" drugs originates - is written in the past tense, saying that "controlled substances" have - in the past while they are still legal - diverted legitimate commerce into illegitimate channels (i.e. the "black market" for drugs siphoned money away from LEGAL business, even while drugs were not sold on a black market because they WERE legal business), and caused other "ills" to society...
There is no "point" cited in the CSA by which government came to control the substances listed within it...
And without justifying the law by citing the harms caused by the law (i.e. the creation of the black market, and the harms associated with unregulated "black market" commerce) - the rational review basis for the creation of the law falls apart.
Retroactive rationalization based upon the problems associated with the creation of a law cannot justify the continuation of the law under rational review. (but that's my opinion...)

It gets fun when you start substituting things for "Ecstasy" - such as "Copies of the Bible"
The same reasoning works... Bibles are dangers - and a rational review can show that society would be better off if NO copies of the bible existed.
So... Congress bans bible manufacturing, possession, and distribution, and says that if you own a copy, you must destroy it - or go to prison (or be shot trying to keep your copy from government officials that know what's best for you - and how to protect you, even from yourself. That bullet hole in your back was for your own protection. Really.)

I get asked, by Government, for a few copies of the bible, and I provide them - at a consensual price. (And this is not entrapment due to some long winded explanation that doesn't make any sense, but holds up in court.)
Government AFTER THE FACT, arrests me for having had possession and the intent to distribute DANGEROUS copies of the bible... That it controls through the interstate commerce clause (which MUST yield to the bill of rights - namely the 5th amendment - according to Schick v. U.S.).
Copies of the bible that government did not own, and could not LEGALLY (Under the Constitution) control without first taking my right to own those bibles through due process of law, or by compensating me for them.

So we have an error in the time line...
I was compensated for the pills...
But the government claims that I had no right to control the pills prior to being compensated for them - that my "crime" was in controlling the pills that government retains all rights to regardless of my ownership...
Regardless of any "rights" claimed under the Constitution...
Because ALL RIGHTS must yield to governmental "control" (and the court defines "regulation" and "control" in an earlier page in its ruling to include prohibition... "You have no RIGHTS government cannot PROHIBIT (criminalize) you from exercising - so long as it comes up with a good excuse (rational review basis)) - no right may be exercised without express consent by government."

Somehow, Title 18 Chapter 13, Sections 241 and 242 of the U.S. code do not apply to government - neither do the restrictions on governmental authority written in the Bill of Rights.

So what good is the Constitution?
Is it REALLY still the "Supreme Law of the Land" - and is the court required - as it states in the Constitution - to judge the law according to the Constitution...
Or can they judge the Constitution according to the law, and alter its meaning so that it no longer PROTECTS the rights of the people, but tells government precisely where to strike in order to subjugate the once free people of this nation?


That's the question I mean to ask the 9th circuit court.
And Filkins - That would be a class action lawsuit - and YES, I want one filed under Title 42 Chapter 21 Sub-chapter I Section 1983.

I want this filed NOW - but I cannot - until after sentencing (and then I need to review the laws and statutes of limitations, and find out if I can file THEN, or if I have to wait until after the appeal has been heard...)
If you know people that have served time, and a class action attorney - GET THEM TOGETHER AND FILE THIS.
I'll sign on if/when I'm eligible.

In Los Angeles, it looks like a 1983 suit is going to be filed against local authorities that have helped with the medical marijuana dispensary raids.
I hope they do file it.
I hope they win.
The drug war is ending - the Government's army is tired and no longer believes in the cause of its Generals.
We can still win this war - if we fire precisely and accurately in a timely manner...

The economic collapse is in our favor as well.
Strike now, strike hard - and we'll see which way the battle goes.
 
Dude, I hope you win. I would love it, and I dont think its that far of to think you can. But, basicly your defence is that the feds had no right to control you, or influnece you when it came to the possetion and owenership of your "property" witch were e tabs(mdma pills). I dont know what outcome may happen for you, but I think you open the door for alot of lidigatin(sp) to come involving personel property and drug laws...........
 
Dude, I hope you win. I would love it, and I dont think its that far of to think you can. But, basicly your defence is that the feds had no right to control you, or influnece you when it came to the possetion and owenership of your "property" witch were e tabs(mdma pills). I dont know what outcome may happen for you, but I think you open the door for alot of lidigatin(sp) to come involving personel property and drug laws...........

Litigation - and yeah - that's the plan.
If this country is going to continue, the government needs firmly reigned in by the constitutional limitations on its power.

This isn't about drugs - it's not about the drug war...
It's about liberty, and respect for human life.

Without a government that respects the rights of its people, we have no freedom, no liberty, and our "free" society will collapse - as it is currently doing.

People talk about regulations on business being a "good thing" - and they have their points, however the over regulation of EVERYTHING has lead to stagnation in research, development, and industry.

Researchers in the past that have solved problems (like polio) have commented that TODAY, if they were to be faced with the same problems, they would NEVER be solved because of the restrictions and regulations.
It almost makes you wonder if AIDS could be cured if Government wasn't getting in the way. (Hypothetical comment only, not saying that it would...)

Edison and Tesla (the fathers of electricity use in the home) would NEVER have been able to bring electricity to the market under current regulatory schemes to "protect" people from things that MAY be useful, but have been proven to cause harm to some people - whether acting responsibly or not.

What one does with one's private property, so long as his use and control over that property does not infringe upon the rights of another, MUST be tolerated in a free society.
The supreme court has ruled upon this many times - and all times it has determined the outcome the same way; one's property rights are SACRED and undeniable by government.

Interstate commerce arguments against the drug laws are a dead end. There is no "right" to control interstate commerce inherent in the people - and no right by which government may inherit its powers over interstate commerce - however this has not prevented the courts from ruling that where there is no right, government may seize power for itself from nowhere - power without origin, and violate the fundamental tenements of our society; that the people retain all sovereign rights and that government's powers flow directly from the consent and gift of authority derived from the rights government is sworn to protect.


The strongest position in defiance of the drug laws comes from the ruling in UNITED STATES v. BALINT ET AL. - March 27, 1922

This ruling established that no "criminal intent" is necessary to be tried under the drug laws (then, the Harrison Narcotic's act), only that one be in possession of that which is "prohibited" under the "police powers" of the state.
There are no federal police powers enumerated within the Constitution; any exercise thereof is in excess of government's limited enumerated powers.

This ruling also states plainly that the drug laws are not laws against acts which are "malum in se" (inherently wrong) but are laws against "achieving a social betterment" (rising out of one's social class into a higher class).

Laws of oppression are prohibited by the Constitution - and in his ruling denying my motion, my judge comments that he believes in no "right to property" that is not subject to prohibition by government, as he believes that the Bill of Rights is only to serve as a "stop against oppressive legislation."
Legislation which prohibits climbing out of one's social class and entering into another is surely oppressive legislation.

This, combined with the lack of legitimate Federal Police powers, and the inability of ANY enumerated power to overcome ANY right protected in the Bill of Rights (Schick v. US), clearly terminates any claims to control the private property of any citizen without due process of law, or just compensation.


So it is irrelevant where the claim to "control" substances comes from; government MAY NOT prohibit, nor control, the exercise of one's fundamental property rights, so long as that control and exercise does not come in conflict with the rights of any non-consenting "victim" of his actions.



But I've said this before...
Rewording it can be helpful if anyone doesn't understand the way I've worded it before.

Anyone finding anything wrong with these arguments, PLEASE SPEAK UP!
I've got to get back to work...
 
More good stuff from the Supreme Court (received from a patriotic attorney that, without payment, will not take up my case >_<)

He named one of his favorite rulings to be U.S. v. Rock Island Armory.
From there, I ended up at Nigro v. U.S.
http://supreme.justia.com/us/276/332/case.html

"In interpreting the (Harrison Narcotics) Act, we must assume that it is a taxing measure, for otherwise it would be no law at all. If it is a mere act for the purpose of regulating and restraining the purchase of the opiate and other drugs, it is beyond the power of Congress, and must be regarded as invalid, just as the Child Labor Act of Congress was held to be, in Bailey, Collector v. Drexel Furniture Co., 259 U. S. 20. "

The court in my case (in his denial of my motion) makes the claim that regulation of Interstate Commerce amounting to prohibition is a valid exercise of congress's regulatory powers; he may be correct, but this power - per Nigro - exceeds Congressional powers and cannot be exercised under the Constitution.

My take;
If this ruling is correct, any enhancement of the Harrison Tax Act to make criminal the possession, manufacture, or distribution of any narcotic (drug) exceeds the power of Congress and must be held invalid. As the Controlled Substances Act vacates any pretense of taxation and moves to directly prohibit through a licensing statute (requirement of registration for the privilege to manufacture, purchase, possess, or distribute), claiming Federal powers to regulate and restrain the purchase and use of opiates and other drugs, the CSA must be struck down as unconstitutional.

Unconstitutional enactments are not laws at all, and are invalid from the date of their signing, not from the date they are ruled Unconstitutional.
As such, at the time I committed the acts for which I am being charged; the unlicensed exercise of Constitutionally protected property rights, and as determined in Shuttlesworth v. Birmingham, no legitimate law against my control over the property in question exists.
 
True as that may be, keep in mind that congress seems to have handed over legislative powers to a law enforcement agency--the DEA--in direct contradiction of the concept of checks and balances. Case in point: the placement of MDMA in Schedule I despite the ruling of DEA administrative law judge Francis Young.

My question has always been: who in the DEA has the power to trump a legislative entity such as judge Young? Constitutionally, all enactments by the DEA would seem to be invalid. :\
 
True as that may be, keep in mind that congress seems to have handed over legislative powers to a law enforcement agency--the DEA--in direct contradiction of the concept of checks and balances. Case in point: the placement of MDMA in Schedule I despite the ruling of DEA administrative law judge Francis Young.

Those are two separate things, both addressed by the court in it's ruling denying my motion.
Apparently, Congress can pass off certain powers - so long as it retains the ability to create laws, adding or removing items (MDMA) under defined powers within the law itself is a legitimate exercise of legislative power by the executive branch.

My question has always been: who in the DEA has the power to trump a legislative entity such as judge Young? Constitutionally, all enactments by the DEA would seem to be invalid. :\

The rulings by Judge Young were not BINDING on the DEA.

How can a judge's interpretation of the law not be binding? Good question. How can the judge interpret the law, explain that doing something is "illegal" or in violation of the laws, have that action done (By Administrator Lawn), and no one attempts to bring that person to justice?

How can a CRIME - as defined as exercising powers that do not legally exist as determined by a judge in an attempt to remove rights of the citizenry - be committed and ignored?
I don't know - but as Judge Young's ruling was "not binding" on Administrator Lawn, apparently the hearing was a mere triviality - something only to appease the protests of the people that accomplished nothing other than to financially harm those wishing to keep MDMA legal, and was never intended to accomplish anything beyond this.


It kind of gives a new meaning to the "right to petition" government for redress of grievances...
"Petition us if we've done wrong. We'll give you a trial, claim that its both fair and meaningful, then, when we rule in your favor - showing that we've done something wrong - we'll ignore the ruling, continue to oppress you, and move forward now that you're too broke to keep fighting us."
 
The huge problem I have with this is that congress appears to be passing legislative power to an executive entity that can enact laws perpetuating its own existence. Thus, the DEA's enactments are for its own benefit, while the public be damned. A very dangerous situation.
 
The huge problem I have with this is that congress appears to be passing legislative power to an executive entity that can enact laws perpetuating its own existence. Thus, the DEA's enactments are for its own benefit, while the public be damned. A very dangerous situation.

I'll agree with that, but the DEA is not enacting laws - it is "controlling" additional substances within it's delegated authorities under existing law.

As for enacting laws - or scheduling substances- for its own benefit, you're only partially correct...

The real problem is that by enforcing the laws ineptly, they justify their own existence.
If they were to succeed in their stated goal/purpose, they would put themselves out of a job.
This creates the conflict of interest I think you're getting at...
They do nothing to protect the people, because if they did (assuming that 100% enforcement of the laws would actually protect people - which is a stretch...) they wouldn't have the ability to claim their services were still needed.

It's one of those ironic quirks of government...
The better they perform, the less they require (in taxes, or public support).
The worse they perform, the more needy they become... requiring more money, more public effort to assist them, etc.

Politics is less about serving the people than it is serving the best interest of the politician, and all government officials, elected or not, are politicians. You cannot get a politician to do a good job if it will eliminate the power that office holds.
Law enforcement is the same way.
 
Yesterday I received an email from someone at SafeAccess.org in reply to my request for legal aide.

I updated him to my situation and expressed my need for assistance with procedure at the appellate level.
Hopefully I'll get a reply soon.
Sentencing is still scheduled for March 9th. I haven't heard anything from anyone in a while now.

Still waiting, reading, and preparing.
 
Kalash's sentencing has been pushed back to May 4.

He could use some encouragement so I'm bumping his thread. :)
 
So are you out of jail during this time?

I'm slightly confused as how someone can get busted and then be free for such a long time.
I hope things work out for you and I'm glad to hear that your not sentenced yet,

Please update us soon!
 
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