I've been advocating for the Article V Convention for some time. Part of this includes an instance two years ago where I went to Santa Cruz Island off the coast of Santa Barbara, and gathered the debris from a military plane crash into a sculpture. I did this in order to place before the Federal judiciary a violation of the Constitution by Congress. I coupled the crimes (Tampering and Memorialization) and evidence at trial with a necessity defense. On Friday I mailed an optional reply to the Government's answering brief in USA v. John De Herrera No. 09-50527
It's curious how it happened that the Government touched on the evidence for the defense, but it did, and I was finally able to articulate what I'd always had in mind in regards to the reasoning behind this action.
USA v. John De Herrera No. 09-50527
United States Court Of Appeals
For The Ninth Circuit
Optional Reply Brief
(informal)
In this case both the Government and district court claim I never provided evidence for my defense. Yet at trial, even before opening arguments and testimony, U.S. Attorney Williams moved to "...exclude and strike from the evidence the trial brief filed by the defendant in this matter." (Transcript 6, line 6) Presiding Judge Federman requested the issue be taken up after presentations to determine "...to what extent it’s going to be part of [the defense]...." (Transcript 6, line 17) After direct testimony Judge Federman ruled to "...deny the motion to strike on the basis that the brief does provide some context for understanding the defense of necessity.... So I’m going to allow the trial brief to stand as part of the record." (Transcript 100, lines 10-17)
The trial brief in question lists 500+ applications from all fifty states for the Article V Convention. The tables listing these applications were created by the American Bar Association, based on its findings from the Congressional Record. During direct testimony I also stated, and it was not disputed, that "...the Congressional Record shows 567 state applications are on record right now." (Transcript 91, line 7) Thus, contrary to claims by the Government and district court I did in fact enter evidence for my defense, both in the form of a supporting brief and direct testimony. Though the meaning of it was not understood in relation to the necessity defense, this evidence was provided and was never disputed.
In the opening brief at the district court level, I stated 700+ state applications are on record because in the interim between the trial and the matter on appeal, a new audit of the Congressional Record had taken place. I listed an Internet link to a newly created database of true and valid PDF files from the Congressional Record. (GER 45, lines 9-13). In the Government’s Answering Brief it never disputed statements made in testimony at trial, nor the link in the opening brief regarding this evidence. Instead the Government and district court simply focused on the crimes committed, never why they were committed and the evidence supporting their defense. (GER 52-58 & GER 30-37) The U.S. Attorneys and Judges seem to be claiming that because I did not go to Washington D.C. to personally make copies from the Congressional Record, and provide a taped recording of these officials taking the oath of office, that I failed to present "concrete evidence" in my defense.
Not once has the Government mentioned the convention applications as evidence for the defense of necessity in this case. In fact at trial the U.S. Attorney, in regards to the brief containing that evidence and its validity, stated "I’ve read it in a little bit of detail, and I’ll confess that I don’t fully understand [it]. But what I do know is that is has absolutely nothing to do with this case factually or legally." (Transcript 6, lines 8-12) And later again stated "I don’t see how factually and legally it applies to any part of this case." (Transcript 99, line 7) Yet only now, before this court, the Government finally touches upon that evidence, stating "...defendant said he believes that all 50 states have [cast applications]..." and, "Defendant claims that ‘all fifty states have cast applications for the Article V Convention....’" (GAB 5, 7) This evidence is not a belief or claim, but indisputable fact of public record.
What has happened in this case now before the court, is that because the necessity defense and evidence supporting it have been applied in such an unusual manner, the reasoning and meaning behind the causal relationship have flown right over the heads of the U.S. Attorneys and Judges assigned. Not because it’s incomprehensible, but because the gravity of the matter is so profound that apparently none of the officials involved could believe the verity of it. A reading of the transcript shows the U.S. Attorney openly stating they did not understand it, but also the Judge at trial stating "...I was unaware of this issue until you brought it to the court to be discussed." (Transcript 114, line 18) The U.S. Attorney and Judge did not understand what the evidence presented, combined with the law as written and their oaths of office, meant. It meant they had to begin taking legal action without reservation. Not because I said so, but because the rule of law mandates it. This misperception is again revealed when the Government asserts the evidence entered at trial is my personal belief or claim, not an indisputable fact of public record.
I fully admit I failed to be clearer at trial, but again, a reading of the transcript shows that no one was able to comprehend what was before the court, and being misperceived, was thus dismissed as an interesting political question. I did file a motion for a new trial (attached) and that was denied.
In the following I explain the reasoning why the necessity defense exonerates my actions on Santa Cruz Island.
That I was faced with a choice of evils and chose the lesser evil.
After years of raising awareness of this issue in public and on Internet forums, writing letters to congressional representatives, personally paying fees to get Walker v. Members of Congress (No. 05-35023 in the Ninth Circuit) from this court to the Supreme Court (where it was denied), I was faced with the evil of allowing the ongoing and continued violation of the U.S. Constitution by Congress, or clearing a field of unsightly and hazardous debris in a National Park without permission, in order to place the issue before the court.
That there were no other legal alternatives to violating the law.
The district court states "[H]e offered no proof that he made any attempt to remedy the situation through legal means." (GER 37, line 8) A distinction needs to be made: While I myself did not bring a suit in this matter, and while my name was not included in Walker v. Members of Congress, I was personally involved in getting it before the Supreme Court, and that was never disputed. That suit dealt with the specific issue of the state applications on record, and the violation of the Constitution by Congress. Thus, when the Supreme Court denied to hear that suit, the legal alternative was officially denied, and thus, at that point I was forced to act in civil disobedience in order to present the relevant evidence to the Federal judiciary in a defense of necessity.
That I acted to prevent imminent harm.
Since laws are written and enacted (or ratified) with the intent to prevent harm, violation of the highest law surely must be harm; though in this instance is not imminent, but current, ongoing, and compound in nature.
That I reasonably anticipated a causal relation between my conduct and the harm to be avoided.
Since Article VI of the Constitution in part states "...all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation, to support this Constitution...," and since title 18 U.S.C. 1918 states that the violation of oath of office carries a penalty of one year in prison and removal from office, I reasonably anticipated that my conduct would result in testimony before the Federal judiciary, where I could present evidence, which in turn would result in the judiciary taking legal action against Congress in violating the Constitution. In other words, if the oath of office is to protect and defend the Constitution, and all judicial officers are bound by that oath, and breaking it means one year in prison and removal from office, I reasonably anticipated that all that needed to be done was to get this matter before the court.
"Defendant’s final argument, that bringing this issue to the attention of the federal courts will force them to do what he says they should, is critical to defendant’s conception of his necessity defense. It allows him to assert that he personally faced a choice between two evils, because by committing criminal tampering and memorialization, he personally had the power to force the Federal judiciary to do his bidding." (GAB 6)
In this statement the Government reveals its misperception of this case and fails to make critical distinctions: The final argument is not that by bringing this issue to the attention of the federal courts it will force them to do what I say they should, but what the Constitution, oath of office, and rule of law mandates they must. I do not personally have the power to force the Federal judiciary to do my bidding, only the power as sovereign citizen, backed by a legal principle to exonerate my actions, to present evidence, which in turn causes it to do the bidding--not for me--but for the Constitution, rule of law, and thus all sovereign citizens.
Title 5 U.S.C. 3331 states that an individual elected or appointed to an office of honor or profit in the civil service takes an oath solemnly swearing they will support and defend the Constitution of the United States against all enemies, foreign and domestic; that they will bear true faith and allegiance to the same; that they take this obligation freely, without any mental reservation or purpose of evasion; and that they will well and faithfully discharge the duties of the office on which they entered, so help them God. This means the U.S. Attorneys and U.S. Judges assigned to this case, whether they think I met the criteria for a valid defense or not, have now been exposed to the indisputable fact that Congress is violating the convention clause of Article V, and thus the Constitution itself. Because the Constitution boils everything down to an absolute, and as Marbury v. Madison states, either something is constitutional or it is not --"there is no middle ground"-- leaves no choice or alternative to the Federal judiciary in this matter. Either immediate actions against members of Congress are taken to compel that branch to carry out its constitutional obligation to issue the call, or the federal officials assigned to this case violate their oath and federal law themselves. Nothing more than evidence presented in a federal court that 2/3 of the states have cast applications is required to make this so.
"[T]here is no evidence that the Government’s failure to call [the Article V Convention]...is imminently harmful." (GER 36, line 22)
According to the direct language of Article V, Congress "shall call a convention for proposing amendments" when 2/3 of the states cast applications. All fifty states have cast over 700 applications. The Constitution sets out two processes to propose amendments, Congress is vetoing one with its failure to issue the call for a convention and thus overthrowing our constitutional form of government by altering the form of amendment. How is that not imminently harmful and what evidence other than the state applications on record need be considered? The trial brief admitted into evidence for this case details why each and every one of the applications on record are as valid and binding as the Constitution itself because there are no laws stating that either the applications or the Constitution have an expiration date.
A symptom of this harm is that the public voting process has become privatized. ES&S/Diebold now tally 80%+ of all votes cast nationwide, all on proprietary source code. This has occurred because Congress has not only failed to protect the foundation of our freedom--The Vote--but has actually endangered it. If the Article V Convention were called, amendments towards electoral reforms will surely be on the table. Also, the sale of public broadcast frequencies to private interests is another symptom of this harm, and at the Article V Convention media reform would also likely be on the table.
Title 5 U.S.C. 7311 states that an individual may not accept or hold a position in the Government of the United States or the government of the District of Columbia if they advocate the overthrow of our constitutional form of government and shall be fined under this title or imprisoned not more than one year and a day or both. To advocate means to plead in favor of and/or defend by argument. Thus, the Government and district court and the U.S. Attorneys and Judges assigned to this case may argue that I failed to establish a sound defense, but may not argue the validity of the evidence presented, and are thus bound by their oath to take actions appropriate against the 111th Congress without delay.
Statement of Fact: A military plane crashed onto the eastern Santa Cruz Island in 1949. Today, the Montenyo Ridge on eastern Santa Cruz Island (the "crash site") is the only site on the island that contains wreckage from that crash. (GAB 3)
In the motion for a new trial I provided a photo copy of the front page of the Santa Barbara News Press dated March 5, 1949. This shows that the crash the National Park, the Government, and the courts believe they were talking about all along, actually happened on a 1900-foot peak on the northwestern end of the island. In other words I was charged with tampering and memorialization of a debris field from a military plane crash fifteen or twenty miles away (the pilot was Captain Jess Thierry Jr., and a topographical map shows exactly where it occurred). To my knowledge there has never been a verified record of the crash, the debris field of which, I utilized to bring this constitutional matter before the court.