Kalash, you're my hero. I can't say I've read this whole thread, but I respect your willingness to do so much legwork on your own, and ever more so your willingness to attack the root of the problem (unjust laws), rather than just save your own skin. Good luck.
You needed some perspective, hence my comment that in another country, you'd be imprisoned for life or executed. So I probably wouldn't openly pray for anarchy, etc. because it ineviatably leads to a totalitarian state (I believe this was suggested in a previous post).
Here's my fundamental question: why in the Sam Hill did you cooperate with the Feds to begin with? Did you think that they would let you go if you did?
I can't find the answer to this question buried in any of your posts.
I hate to rain on your parade, but I think it's time for a little reality.
I agree, if the U.S. constitution were interpreted correctly drug laws would not exist. The problem with all this is that you assume you still live in a free country. You assume that the checks and balances still work and that the constitution still matters. You're wrong, it hasn't been like that for a long time. I can tell you with about 99.9999% certainty that you will lose this battle. You're going to end up in prison.
I think you should have taken Banquo's advice earlier when he said you should go into debt to get a decent lawyer. But it looks like you have decided to ignore that advice and fight the government so I'll give you some different advice.
If I were you, I would save up as much money as I could and try to escape to a third world South American country. Living in those kinds of countries is much cheaper than the U.S. so the money would go far. You could pay the locals to teach you Spanish once you get there. That would be very hard but not as hard as spending 3 years in prison.
I'm already in debt - I have no credit, so that wasn't a valid option.
Lawyers only want to discuss your specific case and how they can get you the least amount of time.
Not one of them that I talked to - and I talked to quite a few to get second opinions on things - said anything other than to take a plea, it doesn't matter if I'm right about the laws.
I know where I stand... In a real world where the Constitution has no authority... no power.
And I'm pushing for a world in which the government actually has legitimate Constitutionally granted authority.
Fortunately for me, the government BELIEVES itself to be part of this fantasy world, though they operate as though they were not.
They play the game under the illusion of Constitutional authority...
It's only a matter of playing the game and exposing the reality beneath the illusion.
I understand my chances, but also understand the real risks of giving up.
I will never be free unless I fight - as the government will continue in its pursuit of power, further depriving us of our rights till there is nothing left.
As for that 3rd world country...
It isn't an option yet.
This country's still worth fighting for.
If I fail in my quest to restore the Constitutional protections of our rights and liberties, then, and only then, will I consider flight.
I have a LONG LONG way to go before then though - as I can file for a writ if the court denied my motion...
Basically appeal before trial.
I don't know how all this works, but I'll find out and do it.
Either the court sides with me and dismisses the case on the 21st or I have a long battle left ahead.
You needed some perspective, hence my comment that in another country, you'd be imprisoned for life or executed. So I probably wouldn't openly pray for anarchy, etc. because it ineviatably leads to a totalitarian state (I believe this was suggested in a previous post).
Here's my fundamental question: why in the Sam Hill did you cooperate with the Feds to begin with? Did you think that they would let you go if you did?
I can't find the answer to this question buried in any of your posts.
I asked for a phone call after getting back to the station. The arresting agent told me, "This is Federal. You don't get a phone call."
I asked him, "Not even to get an attorney?"
He said, "No."
Then proceeded to question me.
I was of 2 minds.
1) They're not playing by any set of rules I know - cooperate or you don't know what the consequences will be.
2) You've asked for an attorney and they've denied you access to one. Anything you say must be dismissed.
It turns out that my word v. the FBI agent's isn't going to get me very far for scenario #2.
Scenario #1 still applies - as I was arrested for exercising my rights in spite of terrorist threats against me should I choose to exercise those rights.
They're not playing by any set of rules that I know.
And the rules they claim to follow they're in violation of.
So why?
I'm just a kid from a small town in Ohio.
I moved to LA. I love it here. But I'm still a little backwards (I went to college in Mississippi before Cali. That makes me think a little differently as well...)
But 20+ officers with guns pointed at you...
Not ever having been arrested before...
Asking for an attorney and being denied one...
What would you have done?
Honestly?
While they're still holding their guns - or at least making sure they're still visible?
And breaking all the rules of procedure that you know?
That isn't the time to stand up for yourself.
You stand up for yourself when there are witnesses and a sense of equality.
For me, this is in court - where the guns are posed, ready... but not actively pointed at me.
Of course - the court is an extension of the criminal attempts upon me, but it claims to be fair and just.
So we get back to my psychosis - where I believe that people really ALWAYS want to do what is for the best.
Their perspective of what's for the best is diverse - and occasionally conflicts with another's perspective, but no one is truly criminal by nature.
There are exceptions - but even serial killers and mass murderers believe there is some greater benefit (personal or otherwise) that is achieved from killing
their victims. Occasionally this is a believe in a benefit for the victims themselves.
A rational person cannot see how the victim could be helped by being slain, but this is where the origin of all our problems begins...
NO ONE.
No one may choose what is best for another - if that person does not consent and make a decision to go along with that choice.
Ever.
That's liberty. That's freedom.
And that's what we're supposed to have.
The government CANNOT choose what is best for its people. That's why we have the Constitution to ensure they don't - and cannot do so.
They have violated the Constit...
Ugh I think someone said a while back on this thread that it was like seeing a train wreck in slow motion...
Listen to yourself for a second:
Lawyers only want to discuss your specific case and how they can get you the least amount of time.
Not one of them that I talked to - and I talked to quite a few to get second opinions on things - said anything other than to take a plea, it doesn't matter if I'm right about the laws.
Okay... they want to discuss your specific case
---------------Good! You are defending *yourself* against *your* specific case!
They want to do what they can to get you the least amount of time
---------------Good again! More time in prison = bad, less time in prison = good!
Not one of the *laywers* wanted to do it your way, even if you're right about the laws
---------------Think about that one for a minute. Attorneys,... people who have had between 5-10 years more education than you and who have most likely seen this exact scenario play out dozens of times, won't do it your way, even if *you* are right about the laws... Is that arrogance? Ignorance? Some are saying balls?
When was the last time during this ordeal that you contemplated the possibility of doing what you can to salvage things, cop a plea, beg for another attorney,... do anything *other* than what you are attempting? Does it ever flash through your mind for even an instant (hmm,.. what if I just... ?)... If not, please when you're falling asleep tonight or whatever, just dream out that scenario. Imagine it and if you really have balls, write out a list of pros and cons to each.
Heck, if you want, write out here in your thread the pros and cons to continuing down the road you are on, and folding your hand, copping a plea, letting an attorney help you, etc. Be honest and include the likelihood in with your pros/cons. In other words, one of your pros for doing this really shouldn't be "because my case could end the war on drugs,..."
No prison time, a ruling invalidating the drug laws, standing up for my rights in the face of criminal oppression by the government, helping my friends remain/regain their freedom, and striking a major blow to the drug laws - while retaining my freedom so that I can keep hacking away at them until their dead and gone.
Cons... POSSIBLY more prison time, if the court gives it to me. This depends on how I play with the judge - not on any other factor, as the sentencing laws are arbitrary and non-binding.
The pros of pleaing... None. The sentencing guidelines are non-binding.
The plea is for a reduction on the sentencing guidelines, not a reduction in prison time. The plea is a farce, a non-binding contract between myself and the prosecution waiving the requirement for them to prove anything.
They can't prove standing to bring the charges. If they can't even prove a crime took place - at all - why would I agree that I committed a crime?
I can make a case asking for less than the guidelines prescribe, but I can do this anyway - even if I fight.
The prosecution guarantees me nothing for entering a plea - only that they will not appeal the case if the judge gives me a sentence equal to offense leve 23.
I'm starting at offense level 28.
Plea level is 46-57 months.
Actual level is 78-97 months.
21 months (2 years) to 51 months (4 years) difference.
But again - this is arbitrary and non-binding. The judge can impose whatever sentence he feels is proper for the specific case.
Here is where I argue the strongest - no crime, no time.
Either way though - fighting or not - I can make my case at sentencing.
That's what I'm risking.
At a minimum, 2 years additional time.
Maximum 4 years additional time.
Assuming I can't win, I've already lost the rest. (4 years anyway... Assuming sentencing within the guidelines recommended by the prosecution in the plea agreement.) T
Assuming I have a chance to win, I'm possibly gaining 4 - 8 years of "freedom"
And a right to vote. And the ability to fight this insanity from getting into public office.... or voting... teaching... and raising awareness of the criminal insanity possessed by the government.
So really - there is no reason to NOT try.
Attorney or no, I lose nothing by trying.
I still have an option to plea if my motion fails.
This isn't an either/or scenario.
This is a, "Make your case, and if you fail in your motion that everyone things is purely insane, then you can plea and still get just about the same deal as you would have before making your motion."
Does that make sense?
My risk of pursuing this course of action is essentially nothing.
My potential benefits are enormous and unlist-able.
There is no hand to fold. There is no plea to make that will ensure me anything.
The plea agreements don't promise anything - and if more people read them, no one would sign the things.
There is no plea offer.
It's a plea promise to not appeal if the court gives you less time than the sentencing level the prosecution asks for on the plea agreement.
The prosecution can still ask the court for a higher sentencing level.
The court can completely ignore the prosecution's requests - including those on the plea agreement.
They're promising me they'll let me to go prison and not appeal the sentence - so long as it's more than 4 years.
That's all the plea agreement gives me.
4 years is ridiculous for this case.
Better than 6?
Sure - but if they're really going to go for that much time I'm going to fight with everything I have.
INTRODUCTION
In his amended “surrebuttal” (i.e., reply brief), defendant raises a number of arguments that were not raised in his motion to dismiss. New arguments are not properly raised in a reply brief. Nonetheless, we thought it advisable to respond briefly to the new arguments, which are all devoid of merit.
ARGUMENT
I. DEFENDANT’S CORPUS DELICTI ARGUMENT LACKS MERIT
Defendant argues that “[a]ll crime requires a corpus delicti -- a body of crime,” which includes two parts: (1) “a loss or injury suffered by a party with standing”; and (2) “someone’s unlawful conduct resulting in the specific and palpable injury or loss.” (Reply at 15.) Defendant’s characterization of the corpus delicti rule is incorrect, and the rule -- properly construed -- does not warrant dismissal of the indictment.
The actual corpus delicti rule is nothing like defendant imagines. The corpus delicti rule stands for the simple proposition that the government needs some quantum of evidence beyond a mere confession to prove that a defendant has committed a crime. See United States v. Corona-Garcia, 210 F.3d 973, 978 (9th Cir. 2000) (“Although the government may rely on a defendant's confession to meet its burden of proof, it has nevertheless been long established that, in order to serve as the basis for conviction, the government must also adduce some independent corroborating evidence.”); Opper v. United States, 348 U.S. 84, 89-93 (1954) (establishing applicability of common law corpus delicti rule). “Under Opper, such corroborating evidence must ‘tend to establish the trustworthiness of’ defendant's admission.” Corona-Garcia, 210 F.3d at 978 (quoting Opper). “Although independent evidence is not necessary to establish the whole of the corpus delicti, such evidence must ‘support the essential facts admitted sufficiently to justify a jury inference of their truth.’” Id. “[T]he prosecution need not introduce independent evidence of every element of the crime.” Id. The prosecution must simply “introduce evidence ‘tending to establish the trustworthiness of the statement.’” Id. (quoting Opper).
The corpus delicti rule is not a proper basis for challenging an indictment. The rule’s focus is not the sufficiency of the indictment, but the sufficiency of the government’s evidence. Thus, as in Corona-Garcia, the argument is properly made at trial, after the government has rested its case. See generally Fed. R. Crim. P. 29.
As a preview, the government notes that it has plenty evidence the defendant committed the crimes with which he is charged in counts one through six of the indictment. The government’s evidence at trial will not rely on a mere post-arrest confession. It will include testimony of federal agents regarding meetings and telephone calls in which defendant and/or his accomplices discuss the delivery of MDMA pills to a CI; testimony regarding defendant’s actual delivery of such pills to the CI; audio and video recordings of such telephone calls and meetings; and expert testimony regarding the composition of the Ecstacy pills delivered by defendant and his co-conspirators.
II. DEFENDANT’S “STANDING” AND JURISDICTIONAL ARGUMENTS LACK MERIT
Defendant argues that the indictment must be dismissed because the government’s counsel has no “standing” to prosecute the charged offenses. (Reply Brief at 15-16, 18.) On a related note, defendant also argues that there is no “plaintiff” with standing to prosecute the case (i.e., a person who has suffered a specific and palpable injury), and this Court thus has no jurisdiction over the matter.
These arguments lacks merit. To the extent defendant relies on any legal authorities, it is inapposite case law dealing with principles of “standing” in civil cases and state cases dealing with state law doctrines. We will address each point in turn.
First, the government’s counsel has “standing” to prosecute all offenses against the United States, including the offenses alleged in the indictment on file in this case. See 28 U.S.C. § 547 (“each United States Attorney, within his district, shall -- (1) prosecute for all offenses against the United States”). Given the nature of defendant’s entire motion, we suppose it bears noting that the status and authority of United States Attorneys to prosecute federal crimes is also beyond doubt. See U.S. Const., Art. II, § 2 (authorizing President, upon advice and consent of the Senate, to appoint “all other Officers of the United States”); see also 28 U.S.C. § 541 (authorizing President to appoint United States Attorneys, with advice and consent of the Senate).
Second, in contrast to the cases cited by defendant, federal criminal cases do not require proof of an identifiable person who has suffered a “specific and palpable injury.” The Controlled Substances Act is premised on Congress’ finding that the distribution, possession, and improper use of controlled substances have “a substantial and detrimental effect on the health and general welfare of the American people.” See 21 U.S.C. § 801. In short, if a victim were needed, the victim of drug-trafficking offenses is the people of the United States.
Third, the district court has jurisdiction over this case pursuant to 18 U.S.C. § 3231. Section 3231 provides that “[t]he district courts of the United States shall have original jurisdiction . . . of all offenses against the laws of the United States.” Id.
CONCLUSION
For the foregoing reasons, the Court should deny defendant’s motion in its entirety.
So...
I have a little time to respond here.
I've asked Lawyerdude to come up with a reply for Monday.
I've already come up with a little something that just needs formatted...
They keep claiming that they have evidence I committed the crimes outlined in the indictment.
There is no CRIME in the indictment.
"Mere legislative fiat may not take the place of fact in the determination of issues involving life, liberty and property. Manley v. State of Georgia, 279 U.S. 1, 49 S.Ct. 215, 73 L.Ed. 575...The ultimate fact to be established here, is illegal possession of a gun. The fact proven would be merely the legislative presumption. There would be no actual proof...Under our law the corpus delecti must be proved; here it is presumed...The Legislature has no power to declare one guilty of a crime; that is the function of the court after due proof. It is Unconstitutional for the Legislature to presume the guilt of the accused. Under this section there is nothing against which to defend, because no crime has been proved." People v. Pinder, 9 N.Y.S.2d 311, 310-311.
A legislated presumption is not a criminal offense.
The prosecution's claim that CRIMES - a distinct and palpable harm suffered by a plaintiff raising the complaint - are only required in CIVIL cases and state cases is utterly ridiculous.
As the definition of CRIME involves the infringing upon another's rights, to waive the requirement that a CRIME must be committed for federal "CRIMINAL" cases makes no sense at all.
There is no criminal offense; there is no party with standing.
Crimes against the U.S. must still have a distinct and palpable harm, or they are not crimes as defined by case law.
I'm not aware that simply being a prosecutor for the Federal Government waives the requirement of CRIME to bring criminal charges.
The "Health and Welfare" of the American People at large cannot supersede the rights of an individual.
By depriving me of my rights - though unconstitutional licensing statutes which convert such rights into mere privileges to be granted or revoked at the whim of a criminal oppressor - Congress, in its findings, is violating the Constitution should it pass legislation usurping my fundamental rights of property and contract.
"If there be any conflict between these two provisions, the one found in the Amendments must control, under the well-understood rule that the last expression of the will of the lawmaker prevails over an earlier one." Schick vs United States [(1904) 195 US 65, 49 L.Ed. 99, 24 S. Ct. 826
This is point of contention # 1 in my surrebuttal.
The prosecution completely ignores the fact that the Amendments must control over the powers granted to Congress in the Articles.
Not to mention that touching upon 2 of my arguments... and only 2 out of the 10 main points - doesn't add up to dismissing the brief in entirety...
If it is grounds for dismissal of the arguments, that's fine. I have another 8 points to stand on.
Is it just me or are they reaching here?
It took me about 10 minutes to pull that stuff out of my original motion.
What... my caselaw doesn't matter because they believe their actions are just and righteous?
If case law is FACT they can't just dismiss the case law I quote unless all case law backing their opinions is dismissed as well.
I've come up with a ROUGH - and I mean ROUGH 8 page response to the tiny little 3 page supplemental opposition filed on Wed.
Looking into this further; the prosecution had dropped the Interstate Commerce argument completely.
They aren't defending their actions any more, and are trying to avoid the issue as it is the mainstay of the drug laws - and the weakest link in their validation of the drug laws.
They've moved on to "General Health and Welfare" which, according to Lawyerdude, is a last resort for the Government when all else has failed.
If we're not worried about commerce any more, then I think I can win this thing outright.
Drugs are not communicable.
Personal use does not endanger the health of the neighbor of the user.
Lawyerdude is working on a reply brief.
The prosecution dropping one argument completely in favor of another...
And they're getting defensive.
I think I'm getting the positioning I've wanted from day one.
Finally.
2 days till freedom...
Come Monday I'll be free again :D
(Positive thoughts, just in case all that, "The Secret" crap holds any bearing on Federal Court procedures )
Second, in contrast to the cases cited by defendant, federal criminal cases do not require proof of an identifiable person who has suffered a “specific and palpable injury.” The Controlled Substances Act is premised on Congress’ finding that the distribution, possession, and improper use of controlled substances have “a substantial and detrimental effect on the health and general welfare of the American people.” See 21 U.S.C. § 801. In short, if a victim were needed, the victim of drug-trafficking offenses is the people of the United States.
okay - then shouldn't they at least need to make the clear case that pretty much proves there's a 'substantial and detrimental effect' on health/welfare of the people? I think that'd be, of course biased here, but I think you'll have a hard time making a compelling case that ecstasy causes "substantial nad detrimental" effects to society. Shit, if they *can* make that stick, maybe I should sue to get cigarettes into the controlled substances act, as they certainly fit the bill! Heh, I have a bunch of buy one/get one cigs stockpiled, once they were illegal I'd be sitting on treasure!!
Second, in contrast to the cases cited by defendant, federal criminal cases do not require proof of an identifiable person who has suffered a “specific and palpable injury.” The Controlled Substances Act is premised on Congress’ finding that the distribution, possession, and improper use of controlled substances have “a substantial and detrimental effect on the health and general welfare of the American people.” See 21 U.S.C. § 801. In short, if a victim were needed, the victim of drug-trafficking offenses is the people of the United States.
okay - then shouldn't they at least need to make the clear case that pretty much proves there's a 'substantial and detrimental effect' on health/welfare of the people? I think that'd be, of course biased here, but I think you'll have a hard time making a compelling case that ecstasy causes "substantial nad detrimental" effects to society. Shit, if they *can* make that stick, maybe I should sue to get cigarettes into the controlled substances act, as they certainly fit the bill! Heh, I have a bunch of buy one/get one cigs stockpiled, once they were illegal I'd be sitting on treasure!!
"We're appointed by the president. We don't have to obey the rules. We're specifically in this office to viol ate your rights, Constitutional provisions not withstanding."
Yeah.
That's a rough one.
I don't even know where to start 8)
At least I got them to give up the Interstate Commerce argument. That one's harder.
After getting print outs of the 14 page document I wrote this morning - the printer was out of paper... and some other odd things happened...
I went to Judge ... you guys edit out his name, don't you?
Went to the judge's chambers to file it - as I file directly with judge's personal clerk, not the normal filing window - as I'm a special case. (Mandatory e-filing, but I can't access the system as I don't have a Bar number... The filing window isn't made to take in criminal motions any more - so I email them to the judge's clerk/assistant and she files them for me. She's on vacation until Wed.)
I'm told to go to the filing window downstairs.
I get there... they look at me for a moment, look at the motion for a couple minutes, and look at each other (there were 2 ladies there...) for another minute...
Then some guy walks in and asks if "That's the motion for Judge XXXX" and takes it as a "courtesy copy" for the court and ensures me it will be filed on Wed. when the clerk gets back.
Motion quasi-filed, I'm good to go with an hour to spare.
Check my email, post some stuff in CEP, and then head to court.
I'm, of course, near the end of the schedule.
There were a couple sentencing hearings - one that lasted over 40 minutes; drug charges, 188 month sentence - one that was dismissed for the defense attorney's medical issues, a change of plea on a mail theft case, and a couple short simple plea changes.
The 188 month drug case - over 17 million hits of PCP, 2nd offense (prior was distribution of cocaine) was REALLY interesting.
The judge talked about what his personal views were on the drug laws etc...
Brief summary;
He doesn't think that first time offenders get strong enough sentences in order to get the message into their head, "DON'T DO THAT AGAIN!" And generally he will give a strong sentence for first time offenders.
I knew he had a thing for being hard on drug offenders, but now I understand why - something I didn't understand because he teaches a college course on the international drug trade and how it affects our civil liberties. I thought for sure he would be against the drug laws because of this.
He also commented that his thoughts on the drug laws are irrelevant - and he would love to sit down and have a philosophic discussion on them, and finding a resolution to the problems raised by good kids/people becoming burdens on society and wasting away in prison rather than living their lives and contributing to society.
As long as Congress has enacted the laws and the president chooses to enforce them, he will rule over them and enforce them.
The play is that the judiciary has no power. Here is where I begin to get hopeful - as the judiciary DOES have the power to strike the laws down.
After sitting for about 2 hours, my case is called. My stand-by counsel tells the court we're present, the prosecutor says he's present, and the Judge looks at my attorney and says, "Proceed."
My attorney says it's my motion and hands the floor to me.
A moment of... "Now what?" And I tell the court I'm unsure how to proceed, and he says to make my argument.
So... Sticking with what I've read - I say why we're there. "Because of my motion to dismiss filed in Feb, document 9007, and my reply brief filed two weeks ago, and the document I filed today, 9008."
From there I rambled briefly about the laws being unconstitutional, the prosecution failing to establish standing, etc...
And then... the judge just stared at me...
And asked, "Is that all?"
Then turned things over to the prosecutor, and told me to sit down (as it was a little more than readily apparent that I was nervous....)
Then the prosecutor gets up, starts talking, and LIES twice (that I caught.)
(Paraphrased)
"I've taken a lot of time to respond to Kalash's (Banquo edits out my real name. I'm just doing this to make things easier. I should just call the judge Bob as well, but I won't ) arguments in depth, have spent a lot of time citing the reasoning against his arguments... blah, blah...
His standing arguments aren't valid and I've shown him that statutes establishing that federal prosecutors have standing for all suits to which the U.S. is a party.
I've shown him why we don't have to establish a loss or harm.
I've....."
And that was it.
Literally, in an exasperated voice, "I've show this kid stuff, and he just doesn't buy it." Without going into depth about what he's shown me. (Course... he didn't write the 2nd opposition brief anyway... so his ignorance of the actual things cited therein makes sense.)
Then we get to the lies.
“There is no
fundamental constitutional right to import, sell, or possess
marijuana.” as was determined in United States v. Fogarty, [692 F.2d 542, 547 (8th Cir. 1982) - for you wishing to do more research...]. As such, Kalash's claims must be dismissed."
While he's not exactly lieing here, he is being criminally manipulative of the facts.
As I stated in my reply brief, one cannot have the fundamental inherent right to possess or sell anything.
One must come into ownership of something before one can possess or distribute it.
No one is born in ownership of anything...
I.e. there can be no fundamental natural right to possess or sell anything.
Property rights though... that which you own you CAN both possess and distribute.
So far, he's doing ok... Borderline, but ok...
Here's where he crosses the line.
"Kalash contends that his possession and distribution of MDMA are rights - and he contends that these rights are God given. As Kalash would have it, we could all choose which rights we wanted to be God given, and exercise those rights.
We have rights established by the Constitution, and we have to have a common idea of what those rights are, and we get the common consensus on what those rights are by voting."
Lies. All lies.
Pick them out anyone? (Like I'll give you a chance.... how's that NSFWS thing work? Can I hide the answers? )
NSFW:
Rights are inherent and unalineable, given to us at birth - by God, or Nature - and all powers of government are derived FROM our rights, through the consent of the people.
They are NOT enumerated in the Constitution - the government has enumerated powers.
Our RIGHTS are NOT enumerated.
The 9th Amendment, which the Prosecutor obviously needs to read says this;
The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people.
Rights CANNOT be voted on. Rights cannot be granted by the government. Rights have never been granted by the government.
Any attempt to license a "right" to the people is to prohibit the exercise of that right, in violation of the Constitution - as all licensing laws assume the licencer has the power to prohibit that which they permit to take place with the issuance of a license.
Bouvier's Law Dictionary
7. Political rights consist in the power to participate, directly or indirectly, in the establishment or management of government. These political rights are fixed by the constitution. Every citizen has the right of voting for public officers, and of being elected; these are the political rights which the humblest citizen possesses.
8. Civil rights are those which have no relation to the establishment, support, or management of the government. These consist in the power of acquiring and enjoying property, of exercising the paternal and marital powers, and the like. It will be observed that every one, unless deprived of them by a sen-tence of civil death, is in the enjoyment of his civil rights, which is not the case with political rights; for an alien, for example, has no political, although in the full enjoyment of his civil rights.
9. These latter rights are divided into absolute and relative. The absolute rights of mankind may be reduced to three principal or primary articles: the right of personal security, which consists in a person's legal and uninter-rupted enjoyment of his life, his limbs, his body, his health, and his reputation; the right of personal liberty, which consists in the power of locomotion, of changing situation, or removing one's person to whatsoever place one's inclination may direct, without any restraint, unless by due course of law; the right of property, which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land. 1 Bl. 124 to 139.
Hoke v Henderson 15 N.C. 1 17 25 Am Dec 677
“Those terms ‘law of the land’ (meaning “due process of law”) do not mean merely an act of the General Assembly (congress). If they did, every restriction upon the legislative authority would be at once abrogated. For what more can a citizen suffer, than to be “taken, imprisoned, disseized of his freehold, liberties, and privileges; be outlawed, exiled, and destroyed; and be deprived of his property, his liberty and his life,” without crime? … In reference to the infliction of punishment and divesting of the rights of property, it has been repeatedly held in this state and it is believed, in every other of the Union, that there are limitations upon the legislative power, notwithstanding those words; and that the clause itself means that such legislative acts, as profess in themselves directly to punish persons or deprive the citizen of his property, without trial and before judicial tribunals, and a decision upon the matter of right, as determined by the laws under which it vested, according to the course, mode and usages of the common law as derived from our forefathers, are not effectually “laws of the land” for those purposes…
The sole inquiry that remains is whether the office of which the Act deprives… (office = object in question) is property. It is scarcely possible to make the proposition clearer to a plain mind, accustomed to regard things according to practical results and realities, than by barely stating it. For what is property; that is, what do we understand by the term? It means, in reference to the thing, whatever a person can possess and enjoy by his right; and in reference to the person, he who has the right to the exclusion of others, is said to have the property.”
Loan Association v. Topeka, 20 Wall. 655-662
It must be conceded that there are such rights in every free government beyond the control of the State. A government which recognized no such rights, which held the lives, the liberty, and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power, is, after all, but a despotism. It is true, it is a despotism of the many, of the majority, if you choose to call it so, but it is nevertheless a despotism. It may be doubted, if a man is to hold all that he is accustomed to call his own, all in which he has placed his happiness and the security of which is essential to that happiness, under the unlimited dominion of others, whether it is not wiser that this power should be exercised by one man than by many.
I contend that my rights of property include the rights of possession and distribution, regardless of the nature of the property which I wholly own.
The prosecution does not challenge my ownership of said property, only that I "criminally" possessed it.
As this property was wholly owned, without argument from the government, by myself, to deprive me of my ability to posses it in direct violation of the 5th Amendment.
To attempt to prohibit the exercise of my rights of property and contract with property which I own, unless I get the express permission (license) from the government to do so is unconstitutional and invalid.
I don't have to obey any such law (and neither do you...)
“And our decisions have made clear that a person faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license. . . . Given the absence of speedy procedures, the Reverend Shuttlesworth and his associates were faced with a serious dilemma when they received their notice from Mr. Connor. If they attempted to exhaust the administrative and judicial remedies provided by Alabama law, it was almost certain that no effective relief could be obtained by Good Friday. Since the right to engage in peaceful and orderly political demonstrations is, under appropriate conditions, a fundamental aspect of the "liberty" protected by the Fourteenth Amendment . . . the petitioner was not obliged to invoke procedures which could not give him effective relief. With fundamental rights at stake, he was entitled to adopt the more probable meaning of the ordinance and act on his belief that the city's permit regulations were unconstitutional.” - U.S. Supreme Court 1969 in Shuttlesworth v Birmingham.
After the prosecutor made his case (of not much weight or substance), the judge said he would rule on the motion in writing - to help me, as I'm representing myself, and to clarify his ruling for the benefit of the appellate court.
We scheduled the hearing for next Monday at 1:30PM again...
And I'll find out then if the court will rule in my favor, or in favor of the misguided (or lying) prosecutor.
And then I asked if I could challenge something the prosecutor had said.
After being told, "Yes." I said, "I'm not challenging that I have a fundamental right to possess and distribute MDMA, I just don't understand how Congress can place a label on something and suddenly take away my rights of possession and distribution."
Or something along those lines.
When I said it, the judge's eyes lit up.
That could either be a very good thing or a very bad thing.
The prosecution, when asked, said they had nothing further to add - and we were dismissed.
So... off to bed for now - I'm writing a brief to back up my oral arguments (as they were disjointed and incoherent - or at the very least I rambled a bit but didn't state many facts).
Big thanks to Chinaman for showing up and supporting me. Even though he says he didn't understand anything any of us said.
He did comment that the prosecutor didn't sound like he knew what he was talking about - he just kept repeating, "Because I said so, Kalash is wrong."
He wasn't impressed with the prosecution's presentation.
I don't have any more 3rd party commentary, and other than saying it was interesting that we could all be speaking English and he not be able to understand anything we were saying...
Nap time.
(Yeah - it's a little random and disjointed. I'm exhausted. And I wanted to get this stuff down so I don't forget it.)
Night.
I'm betting this is the most open public drug defense running commentary in the world.
Thanks guys for everything - beating me up when I needed it, questioning me when I went a little too far.
Without you to report to (it's one of the things that's kept me going) and without your input, I wouldn't have a case - or at least such a refined argument (that can be summarized in just 15 pages! )
It's been hard, fun work.
And I didn't do all of it - you helped out more than you know.
No matter what happens Monday, not much is going to change for me.
Either I'll have the case dismissed - and I'll be running around trying to help some of my friends get off - that have requested my help and said that they're willing to risk it all... Using my case as precedence...
Or they're going to plea - and I keep fighting.
Other than Jurisdiction, all these arguments can be appealed immediately (before trial.)
From here, it's on to the 9th Circuit on an interlocutory appeal if the judge rules against me.
If the case is dismissed... I have to hope the prosecution appeals so I can get a ruling from the higher court.
At this point, I think the prosecutor is just about as exhausted as I am. He sounded completely worn out in court.
The funny thing is that now that the hearing is over, I feel like I have energy again.
If this goes to appeal, I'm ready.
Just wanted to say, "Thanks" before things get crazy again.
-Kalash
"After the prosecutor made his case (of not much weight or substance), the judge said he would rule on the motion in writing - to help me, as I'm representing myself, and to clarify his ruling for the benefit of the appellate court."
That right there seems bad to me sounds like hes gonna rule against you and he is assuming your gonna appeal as far as possible. I dont share your optimism bro though I do wish tyou the best
"After the prosecutor made his case (of not much weight or substance), the judge said he would rule on the motion in writing - to help me, as I'm representing myself, and to clarify his ruling for the benefit of the appellate court."
That right there seems bad to me sounds like hes gonna rule against you and he is assuming your gonna appeal as far as possible. I dont share your optimism bro though I do wish tyou the best
You're right.
That wasn't boding well.
It was what happened moments later that gave rise to my confidence.
As for the appeal - it can go either way. If he dismisses the charges - and he is morally opposed to the drug laws, so this is a possibility - he would have to substantiate his ruling for the appellate court - and to assist me with proceeding upwards through the system.
If he was just making a ruling against me - and writing it all up for my benefit....
It's a toss up.
I think you're absolutely right. At that point he had made up his mind. What I said moments later grabbed his attention - and that's the turning point where my hopes began to soar.
We'll see.
I can't predict the future (accurately.)
Calling his attention to Congress prohibiting the exercise of my property rights when I was in ownership of the property in question - that's where the Unconstitutionality lays.
Fundamental rights of possession and contract? No. There are none. Until you come into ownership, through your own time, talents, and efforts, you do not OWN anything and have no natural inherent RIGHT to possess nor distribute anything.
No clue.
But... better to believe in the best and not worry about the worst - because worrying only draws it closer.
Consider it a victory - and let the good energy flow bring the best back.
:D
Your stamina and resolve is admirable, Kalash, even if your strategy not legally sound. Two things as this moves forward:
(1) Please keep an avenue open for a better plea deal whether offered or negotiated.
(2) Please keep an avenue open for more/some legal counsel. Is there anyone who will lend you legal services or money?
You still have some leverage in the current situation, namely the time, energy, and resources of the prosecutor. Eventually these factors will be taken out of the equation, and you will have very little left with which to bargain.
Your stamina and resolve is admirable, Kalash, even if your strategy not legally sound. Two things as this moves forward:
(1) Please keep an avenue open for a better plea deal whether offered or negotiated.
(2) Please keep an avenue open for more/some legal counsel. Is there anyone who will lend you legal services or money?
You still have some leverage in the current situation, namely the time, energy, and resources of the prosecutor. Eventually these factors will be taken out of the equation, and you will have very little left with which to bargain.
1. The plea is still available. I made sure of that before starting in on all of this.
2. I still have standby counsel - Mr. xx will represent me for plea bargaining, represent me at trial (if it comes to that), and I am always allowed to get new counsel of my choosing - that's a right the court cannot deny me.
Any plea would have to be conditional - permitting for an appeal.
I agree with Lawerdude on this - file interlocutory appeals...
Don't get found guilty then try to overturn the conviction... appeal the legal deficits prior to trial when you still hold some power.
The time and energy of the prosecutor shouldn't be bargaining tools - they should be able to prove I committed a crime beyond a reasonable doubt.
They can't - or haven't - done so.
At least, not to my satisfaction.
Waiving all the requirements of a crime - because it's NOT civil, and it's NOT a local or state matter...
That doesn't work for me.
Lawyerdude wants to go at it from a, "Federal police powers are not granted in the Constitution."
I'm still saying it doesn't matter if the federal police power exists or not - they cannot remove the "CRIMINAL" element from a "criminal act" and punish it.
For numerous Constitutional reasons.
If the prosecutor wasn't stuck on, "Drugs are a separate and specific RIGHT." rather than, "Drugs are property, and possession of my private property CANNOT be licensed to me, nor denied me under the constitution.
Who says what drugs are? The government? So the government, by legislative rulings, may prescribe what may and may not be property, after such items have been owned, possessed, and distributed in open commerce?
That isn't a regulation of something - that is an ex post facto law by which the fundamental property rights of the people are being sacrificed by the label applied by the government to a certain type of tangible good - "property"
The drug laws are forfeiture laws - whereby one's property is forfeit simply by one coming to possess it - ownership of the item is irrelevant.
I don't know why that isn't a sound legal argument.
Congress cannot deprive me of my property rights without due process of law.
Acts of the legislature are not due process (law of the land) as defined in the 5th Amendment.
Property rights include both possession and distribution of one's private property, so long as his use does not violate the rights of another, and his contracts are mutually agreeable.
So I have no right to possess nor distribute "prohibited property" because of a law, making the current exercise of one's fundamental property rights "criminal?" That's an ex post facto law - whereby something that IS property, and is being held and owned, with possession and distribution being fundamental aspects of one's rights to said property, is prohibited, making the currently common innocent act "criminal."
I have no rights of possession or distribution of my private property - because Congress, through an act, subject to the restraints of the amendments, deprives me of these fundamental property rights...
By labeling my property as "contraband"
I don't see it.
That's not a legitimate nor authorized use of Congressional power.
It's abuse of power. And it's criminal.
The Controlled Substances act is an unconstitutional licensing statute. One may ignore it and exercise their property rights without regard to the law, as it is no law at all.
Drug possession and distribution is now licensed through the DEA.
You must get "permission" - a license - in order to exercise your "rights" of possession and distribution of your private property.
“If the state converts a liberty into a privilege the citizen can
engage in the right with impunity” Shuttlesworth v Birmingham,
U.S. Supreme Court,[394 U.S. 147 (1969).]
So...
I'm curious Banquo...
How are my arguments not legally sound?
And if there is some fundamental flaw with my arguments that can be easily suppressed, why has the prosecution failed to find it and turn me from this path?
Instead, the prosecutor argues that rights are voted upon - subject to deprivation by a majority vote, are not unalienable but are mere privileges to be granted and revoked at the whim of the majority of Congress.
Why does the prosecutor persist in propping up these laws with obviously unconstitutional arguments (Provisions of powers over ride rights of the people), rather than pointing out the simple flaws with my own rendering them moot?
How are my arguments not legally sound?
And if there is some fundamental flaw with my arguments that can be easily suppressed, why has the prosecution failed to find it and turn me from this path?
Instead, the prosecutor argues that rights are voted upon - subject to deprivation by a majority vote, are not unalienable but are mere privileges to be granted and revoked at the whim of the majority of Congress.
Why does the prosecutor persist in propping up these laws with obviously unconstitutional arguments (Provisions of powers over ride rights of the people), rather than pointing out the simple flaws with my own rendering them moot?
Just a point.... the prosecutor is doing what he probably does best - getting a conviction. In his eyes, the facts of this case are cut dry - there are laws, and you violated them. He could care less if they are unconstitutional or a huge power trip - you broke the current laws, and he wants a conviction under those laws. He's not there to argue against your case - he's there to prove you broke X law in this way, Y law in this way, and so on...
For your case to really work...You'll either need a very loose judge - but, even that could be toppled by an appeal or something technical, or a trial by jury. The prosecutor isn't just going to stop and go - "Oh, wow. Kalash is right. These laws are bogus. I'mma drop this case like a fly!" You're probably just like every other druggie he's faced, nothing more than a far out nutjob. But judges and juries - those are people who might take your case a bit more seriously in your arguement.
^ This assumes the judge allows his arguments to reach a jury. The jury decides the facts; the judge decides the law. The judge can exclude irrelevant evidence from being presented to the jury during the trial, and the prosecution can (and will) move before trial to exclude evidence of his legal arguments that the drug laws are unconstitutional. This motion before trial is called a motion in limine, and would result in his legal arguments being dealt with before trial. If he lost the motion(s) on his legal arguments, the jury would not get to hear them.
I think jury nullification - the jury ignoring the law and the facts and, in essence, making their own law - in this case would require a very permissive judge. Judges are often more permissive if a defendant is acting as his or her own lawyer, so there might be a chance on that front (key word: "might").
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