UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Sean David Morton
Plaintiff/Petitioner – Appellant,
Case No. 17-50351
expedited emergency motion for summary disposition
lack of jurisdiction –
18 usc 514, 2b
demand for equity and common law like powers in the interest of justice
EXPEDITED MOTION FOR SUMMARY DISPOSITION
Comes now Sean David Morton, one of the people of California and in this court of record demands expedited summary disposition of the case and judgment against him based on judicial estoppel. There is no reason to do a full appeal and brief because this case should be tossed out based on simple issues that are full bars and not on the merits. Justice delayed is justice denied.
Because this case was brought as part of the DoJ and IRS targeting scandal to suppress Sean’s 1st amendment rights to free expression, right to associate and right to be non-commercial media justice should not be delayed. This court is empowered to use it’s equity or common law like powers to restore Sean’s life, property, rights and interests taken in error with no due process.
Article III standing
- Not once was a real and articulate injury alleged, only hypothetical injury was alleged
- The non injury was not caused by Sean
- The court did not redress any injury or make any victim whole.
To prove standing:
- What specific and articulate fact of an injury is stated in the indictment for this offense?
- What facts in the indictment support causality that Sean and Melissa caused the harm associated with this offense?
- What relief did the victim ask for in the indictment and what did the court do to redress each injury by granting the victim a judgment in their favor for this offense?
- What personal interest does the United States have to sue for the class of victim in each offense and where in the indictment is the victim even named?
Lack of subject matter jurisdiction
Judge questions jurisdiction
pg 43 Sentencing: THE COURT: But how does this court have criminal jurisdiction over a claim to the state Franchise Tax Board? …. (subsequent colloquy ensued justifying that CA-FTB is an alleged after the fact victim)
THE COURT: Ms. Makarewicz, does that count affect any of the calculations in and of itself?
- MAKAREWICZ: It would because it would affect the base offense level. It would drop it two points. If you look at —
THE COURT: It seems unusual to me — I’m not prepared to say more than that now to charge someone with making a false statement to a state agency as contrasted to a false civilian, false document to a commercial entity. How would you comment? Are you saying they’re both just part of the same scheme?
- MAKAREWICZ: They are but I just did the math quickly, Your Honor, in taking the bond that Mr. Morton sent to the California Franchise Tax Board and subtracted it from our total and, it would not affect. It would still be the seven plus18. So you—if you wish to—
THE COURT: All right. Let me see if I had any other questions.
18 usc 514 (counts 6,7,9-32)
- The IRS is specifically excluded from the delegated authority to investigate 514 offenses. IRS exceeded jurisdiction to investigate. To overcome this bar written into the statute the government must provide the delegated authority of IRS-CI and special agents to investigate 514 offenses in general and 514 offenses that have nothing to do with taxes.
- The Congress power to regulate 514 offenses is limited to conduct in United States, or, [which is disjunctive] by, through or to United States using interstate commerce. Sean is sued under the section of the statute that requires the conduct to be in United States. The indictment is controlling so this is an absolute bar to subject matter jurisdiction that is impossible to overcome. Counts 6,7,9-32 exceed the scope of the statute.
- Even if the conduct was in the scope of the statute, which it is not, the judge never defined the essential element of ‘issued under the authority of United States’ therefore Sean was denied due process and is convicted by a jury on less than all elements
- Even if the conduct was in the scope of the statute, which it is not, the conduct never made it into the stream of commerce to regulate.
- Even if the conduct was in the scope of the statute, which it is not, the court erred by not considering the safe harbor exception written into the Securities Act and did not consider the exceptions in UCC Article 3 that defines instrument; in this governing statute Congress expressly excludes instruments that conspicuously say non negotiable and excluded documentary drafts. Conspicuous as defined in UCC must be determined by a judge and the judge was not shown the instruments until trial then he excluded the exceptions that the instruments fall under. The court erred by assuming subject matter jurisdiction that Congress expressly excluded from the scope of the statutes that govern the instruments.
- It is axiomatic that Sean could not defraud without knowledge or deceit. Sean had no knowledge and gave no guarantees so he’s not a fraudster and deceived no one.
JURISDICTION NEEDS PERSONAL INTEREST TO SUE
Prosecutor concedes counts 9-32 do not involve IRS and are treated as 514 and 2b causing an act to be done offenses against private victims. See Lujan v Defenders of Wildlife. To sue the plaintiff must show personal interest to sue for that class of victim.
The Federal government has no interest in protecting private victims of fraud in California. This is well settled. Fraud is a traditionally private matter where the victim must sue their defrauder and is traditionally governed by state police power.
There are 2 separate limitations Congress needs this court to enforce as far as the face of 514 offenses:
First, Congress limited delegated authority to secret service to investigate 514 offenses.
Second, Congress limited the subject matter of 514 offenses by territorial jurisdiction and commerce power.
The trial court erred by failing it’s duty to consider the limits of the statute.
Doc 50 pg 6: Fictitious Financial Instruments In order for a defendant to be guilty of a violation of Title 18, United States Code, Section 514, the government must prove the following elements beyond a reasonable doubt:
(1) That defendant passed, uttered, presented, or offered a false or fictitious instrument within the United States, or attempted to do the same;
(2) That the instrument purported or contrived through scheme or artifice to be an actual security or other financial instrument issued under the authority of the United States; and
(3) That defendant did so with the intent to defraud.
Prosecutor is well aware the ingredient or element of location in United States is part of the nature of the offense. Sean who has a right to be informed the nature was never told this, which he would have gladly challenged had he realized the issue. The record shows Sean insisted he had never been to District of Columbia when he challenged subject matter/territorial jurisdiction (even if inartfully challenged), which was denied in error with no explanation and yet it is essential to consider.
CONDUCT NOT IN THE SCOPE OF THE 18 usc 514 STATUTE
18 usc 514 – factitious instruments is a pretty unique statute in which Congress stretched the limits of their powers even further than 18 usc 513, which was already at the tipping point.
In order for Congress to keep the statute within it’s power to enact Congress included strict limitations on who can investigate within the wording of the statute itself. Because the statute does not draw upon Congress power to regulate United States coins and securities counterfitting, the statute was created using two different powers delegated to Congress.
Under Article 1 section 8 the authority that gives 18 usc 514 validity is narrow and limited by Congress power to regulate all laws of the United States defined as 10 square miles (UCC 9-302 – United States is in District of Columbia) or Congress power to regulate interstate commerce between states. The keystone here that is rarely considered is that trade is intrastate and commerce is interstate, Congress can only regulate commerce. This case commandeers traditional state police power and is attempting to regulate trade not in Congress power to regulate. A lengthy debate on Federalism, while enlightening is not required because the facts that show lack of jurisdiction are so simple. Congress did not give IRS authority to investigate this offense and the conduct was not in United States. Period. Case closed. The 514 offenses are void.
NO SUBSTANTIAL EFFECT ON COMMERCE
Id., 276, 277. The scope of review is restated in Preseault v. ICC, 494 U.S. 1, 17 (1990). Then-Justice Rehnquist, concurring in the two Hodel cases, objected that the Court was making it appear that no constitutional limits existed under the commerce clause, whereas in fact it was necessary that a regulated activity must have a substantial effect on interstate commerce, not just some effect. In this case the documents never made it into the stream of commerce. United States v. Lopez, 514 US 549 – Supreme Court 1995 Congress could not regulate activities such as “production,” “manufacturing,” and “mining.” See, e. g., United St/tes v. E. C. Knight Co., 156 U. S. 1, 12 (1895) (“Commerce succeeds to manufacture, and is not part of it”); Carter v. Carter Coal Co., 298 U. S. 238, 304 (1936) (“Mining brings the subject matter of commerce into existence. Commerce disposes of it”).
The words present, utter, offer and present are all words that define a broker activity in regards to marketable securities and Sean was incapable of doing any of those 4 words. Merely showing or preparing instruments is not in the scope of the statute. The warrant to search has no probable cause because it alleges Sean “used” instruments and “prepared” instruments. The warrant never used the words in the statute: present, utter, offer and present and probable cause to get the evidence in counts 9-32 is from an invalid warrant. The problem here is Congress commerce power is exceeded which is jurisdictional.
NO ROOM FOR DEBATE BECAUSE CONGRESS SPOKE TO THE ISSUE
The 514 statute is relatively new, therefore very few cases have been brought under the statute to date. Of the cases that have made up the interpretation of the statute only a few opinions actually consider the entirety of Congress intent that location (in United States) is an essential ingredient or element of the charge.
This situation has resulted in courts quoting other courts opinion and entirely bypassing the duty to first look at the entire statutory construction as Congress wrote it to ensure that every single word and limitation on the government is strictly construed and recognized.
Diligent adherence to the constraints of the statute is essential to the court having proper jurisdiction to enforce the statute. Failure to first consider the limits of Federal power that was written into the statute is disastrous because it has created a de facto expansion of Congress powers and has the unintended result of allowing the judicial branch to make law rather than Congress. At the same time it allows the judicial branch to deprive Congress of an effective means of enforcing it’s exact intent thus taking Congress power from Congress and depriving Congress of it’s authority to enforce limits it created into the statutes.
FIRST ERROR – SUBJECT MATTER JURISDICTION/TERRITORIAL OVER INVESTIGATIONS
Prosecution comes in different stages. First in order to investigate the offense there must be jurisdiction proved by proper delegation of authority.
514 is a very precise limbo where there is no wiggle room to interpret. Congress does not ordinarily write investigative delegations of authority into the statute itself. Congress provided a specific instruction that secret service is supposed to investigate and their delegated authority was given to Homeland Security. Sean is not aware of any delegated authority given by secret service to IRS-CI or special agents to investigate 514 offenses with no tax nexus and therefore he denies any exists.
Prosecution was asked numerous times and expressly declines to inform Sean the purported delegation of the authority for IRS-CI to investigate.
With no known delegated authority given to IRS-CI to investigate 514 offenses in this case Sean raises a 9th and 10th amendment claim that he has the right to demand the court use its equity and common law like powers to restrain exercise of power that is not delegated to IRS-CI, which is harming him. Obviously if IRS got a warrant in excess of authority to investigate the evidence is gained from a void warrant in excess of jurisdiction. The evidence obtained is fruit of the poisoned tree and must be suppressed in order to deter future witch hunts in excess of authority causing illegal no knock terrifying armed raids into peoples private homes in a foreign sovereignty, looking for 514 offenses that interfere with private contracts.
Prosecutor has stubbornly refused to provide any evidence of IRS-CI delegation of authority to investigate 514 offenses, yet it is an essential ingredient or essential element Congress expressly spoke to and defined in the statutory construction.
After diligent search Sean has found no case law that the court can adequately draw from on this topic. Congress wrote 514 c as both a verified pass to proceed for secret service to investigate 514 offenses as well as a strict limit and warning to any other entity that may attempt to proceed in error. It’s saying, “If you are not secret service or delegated secret service authority then do not dare investigate 514 offenses”.
Congress limited this authority because counterfeiting is secret service jurisdiction and 514 closed a hole in the counterfeiting of coins and securities of the United States. Congress does not intent to give debt collectors or random entities jurisdiction to investigate 514 offenses because that power is easily abused. DoJ attorneys and IRS agents are defined as debt collectors.
By allowing any entity other than secret service to investigate 514 would fail to function properly as intended by Congress.
It is Sean’s wish the 514 offenses are dropped because the investigation is in excess of IRS delegated authority.
SECOND ERROR – SUBJECT MATTER JURISDICTION/TERRITORIAL – LOCATION MUST BE SET OUT AS IN UNITED STATES
The indictment is controlling and alleges the conduct for all 514 offenses is entirely within California, therefore the court exceeded statutory authority and jurisdiction. Simply put, the purely intrastate California conduct is subject to a safe harbor clause in the Security Act and exempted from Federal jurisdiction. Without an indictment that alleges 514 offenses occurred in United States there is no subject matter jurisdiction or Congress power to regulate the purely intrastate trade or purported frauds between private people in California.
229- Particular allegations – Place of offense Under early English law, when jurors were also witnesses summoned from the vicinage, the sheriff needed to know where the crime was committed in order to summon the proper jury. However, under current Federal law, the indictment or information need not allege a place where the offense occurred. Uniformly indictments allege that the crime took place “in the . . . District of . . .” but omit any reference to such particulars as State, county, city, or township. “Most authorities assume that an allegation is sufficient after verdict which shows it (the crime) to have been done within the jurisdiction of the court.” See Ledbetter v. United States, 170 U.S. 606, 613 (1898).
Where place is an element of the offense, however, it must be set out. For example, in an indictment under 18 U.S.C. § 2312, interstate transportation of a stolen motor vehicle, the State from which the vehicle was taken and into which it was transported should be named, these being essential to the offense.
THIRD ERROR – DISQUALIFYING CONSPICUOUS MARK
The court got it wrong when it said, “We decline to adopt Salman’s reading of Howick because it would unnecessarily limit the scope of § 514, contrary to what Congress said in its statutory language, and would reopen a loophole in the counterfeit statute that Congress purposely closed when it enacted § 514.” Congress does not make unecessary limits, and in this case three very important limits are not considered which is an oft-repeated error by the courts: 1. Secret service investigation authority 2. location in United States or to, from or through United States using interstate commerce and 3. Statutory exceptions such as non negotiable documentary drafts and the definition of security excluding certain debt instruments are never considered as far as Sean knows, and are usually if not always bypassed by the courts.
The court in the case against Sean took the same position as in Salman interpreting 514 to include both non-negotiable and negotiable instruments. Despite the court in Salman providing the origin of the statute, and despite the fact the statute is in fact intended to close a loophole in counterfitting the court erred by presuming that non-negotiable instruments are indeed applicable to 514 offenses. There is a conflict in the case law so far, even within this circuit. The court has left the situation unresolved by deciding in Salman that Congress statutory language can be interpreted to want a court to include non-negotiable instruments as part of the subject matter of 514 offenses so the counterfitting loophole doesn’t close.
It is error to presume that the non-negotiable instrument exception (disqualifying mark) would “unnecessarily limit the scope of § 514, contrary to what Congress said in its statutory language, and would reopen a loophole in the counterfeit statute that Congress purposely closed when it enacted § 514.”
The court in this case as well as Salman totally failed to consider that UCC is adopted by Congress and is the proper statutory language. Its also what these people who make the instruments rely on so it should be safe to read, rely on and these definitions shouldn’t change after a criminal case commences to exclude Congress express exceptions written into the UCC.
The judge in the case against Sean usurped Congress jurisdiction to make a totally new law by combining 2 portions of two separate UCC definitions (Art 3 and Art 9) and basically decreed a new definition of instrument that includes non-negotiable instruments and omitted the express words of Congress that give an exception for the exact instruments in question. A court must interpret the actual body of laws as Congress said in it’s statutory language which is highly relevant to Sean because Congress said that under UCC Article 3 non negotiable documentary drafts are not an instrument. The court in Salman assumes Congress intent is to include non-negotiable instruments, citing the basis of that conclusion on Congress statutory language not wanting to reopen the counterfeiting loophole.
Congress statutory language is not open for debate. Under UCC Article 3 Congress absolutely said in its statutory language that if an instrument conspicuously says non-negotiable it is intended by Congress to fall under a distinct express exception and is not an instrument.
The court got it wrong when it held that a non negotiable instrument could be passed if you “know how to play by the rules”. ICC or banker rules are not law and that sounds like the exact type of loophole the Congress wanted to close by excluding non negotiable documentary drafts, which are defined as factitious. The word factitious is not an error, it refers to indenture securities which are defined as “by covenant allows what is normally not allowed”. Congress does not want them passed by “playing by a rule”. The covenant documents do not allow them to be passed, uttered, offered or presented on the stock market. Period. The court needs to hold that Congress spoke to an exception of instrument in UCC Article 3 that excludes non negotiable instruments and the courts need to construe Congress words exactly as written rather than quote expert comptrollers who tell the court about some “rules you can learn to play by if you know how” that allow non negotiable instruments to be passed.
The instruments in this case could never fall under the scope of 514 because they are not negotiable and non-negotiable instruments are incapable of being passed. Opinion is not law. Rules are not law. Law says non-negotiable instruments can not be passed.
514 OFFENSE DOES NOT MEET THE REQUIREMENTS OF FRAUD:
It is well settled the common law elements apply even if not written into the statute
common law generally identifies nine elements needed to establish fraud: (1) ‘ representation of fact; (2) its falsity; (3) its materiality; (4) the representerʼs knowledge of its falsity or ignorance of its truth; (5) the representerʼs intent that it should be acted upon by the person in the manner reasonably contemplated; (6) the injured partyʼs ignorance of its falsity; (7) the injured partyʼs reliance on its truth; (8) the injured partyʼs right to rely thereon; and (9) the injured partyʼs consequent and proximate injury. See, e.g., Strategic Diversity, Inc. v. Alchemix Corp., 666 F.3d 1197, 1210 n. 3, 2012 U.S. App. LEXIS 1175, at *25 n.3 (9th Cir. 2012)
To successfully allege a claim for common law fraud, a plaintiff must plead each element with specificity and particularity. See, e.g., Baron v. Pfizer, Inc., 820 N.Y.S.2d 841, 12 Misc. 3d 1169(A) (N.Y. App. Div. 2006) (holding that New York law requires a cause of action for fraud be pled with greater specificity than other causes of action (citing Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 57, 720 N.E. 2d 892, 898 (N.Y. 1999))) California courts quote the above fraud elements and cases as the rule of decision in Sean’s domicile.
CALIFORNIA LETTER ABOUT BOND PROVES NO KNOWLEDGE
The prosecutors falsely allege Sean had knowledge the instruments in the 514 offenses were fictitious because of a single letter from California warning Sean the instrument was not a proper instrument. The same letter tells Sean if he believes he researched the law in depth and believes is correct he could sue and if he prevails to prove he is correct he would be refunded.
Sean is not given adequate warning because:
- California didn’t criminalize the instrument, they gave due process and discussed them and simply asked for a different payment method.
- Sean expected that like any ‘bad check’ if it truly is ‘bad’ the issue could be resolved with due process and discussion
- The contradictory nature of the statements, “its not a proper instrument” and “if you prevail” and win in court are confusing and don’t warn of a final determination or where the line is crossed into criminality.
- A letter from California is not sufficient to warn of Federal criminal statutes he may be violating
- Sean expected that due process notice and the ability to respond would be given in all cases like California did, after all the Governor specifically asked Shelly Clark from the CA-FTB to write and help Sean, not arrest him
The documents are a hodgepodge of laws and opinions of laws. The record shows Sean and Melissa rescinded every single document and instrument for possible mistake of law before sentencing. The government concedes the instruments are governed by UCC, therefore the charges are moot because the subject matter ceased to exist when Sean rescinded the documents and instruments for mistake of law. No one contested the rescissions and Sean relies on his equitable and lawful right under UCC and California law to rescind all the documents.
- 1-103. Construction of Uniform Commercial Code to Promote its Purposes and Policies: Applicability of Supplemental Principles of Law.
(a) The Uniform Commercial Code must be liberally construed and applied to promote its underlying purposes and policies, which are: (1) to simplify, clarify, and modernize the law governing commercial transactions; (2) to permit the continued expansion of commercial practices through custom, usage, and agreement of the parties; and (3) to make uniform the law among the various jurisdictions.
(b) Unless displaced by the particular provisions of the Uniform Commercial Code, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, and other validating or invalidating cause supplement its provisions.
The indictment does not inform Sean the nature of the charge as mandated by the Sixth amendment, and is not a proper accusation in common law as required by the constitution, customs of men for centuries and Hamdi v Rumsfield, a Supreme court ruling that explains the accused has the right to a traditional common law criminal proceeding with a proper accusation, under oath of a good cause certain.
SUPERIOR COURT OF RECORD
INFERIOR COURT NOT OF RECORD
ARTICLE III JURISDICTION TO FINE AND IMPRISON EXCEEDED
THE COURT NOT OF RECORD EXCEEDED JURISDICTION
A court not of record proceeds by statutes and not by the common law. This is common knowledge yet the prosecutors ridicule this basic rule of law. The inferior court not of record has no power to fine or imprison.
Because no injured party with standing was given redress for a real and articulate injury the court exceeded jurisdiction by using Article III power in a case where there is no Article III standing and no right to use the inherent judicial power of the courts of record to fine or imprison.
To overcome this it’s law 101 and the prosecutors know or should know this is the first step before merits. See the Steelco holding, jurisdiction must always be solved before the merits even if the merits seem easily resolved.
The prosecutors must prove exactly how an inferior court has judicial power to fine or imprison with no Article III standing and no victim who states a proper claim under oath of a good cause certain that the court makes whole?
If the prosecutors want an extension they need to provide an affidavit signed under oath of why these simple issues cannot be answered in a timely manner of seven days. The least the prosecutors can do is to sit down, focus and explain why they should prevail and why this motion should not be granted. If the case against Sean is so airtight and Sean should be imprisoned then it does not take long to explain why.
A man is in prison totally unfairly and impermissibly. Even one second of loss of a constitutionally protected right is irreparable injury. This expedited motion for summary disposition is about restoring the balance of equity and quickly in the interest of justice. The issues are not rocket science, and the government has had years to become familiar with every fact and the laws. The case against Sean is fully barred due to these issues therefore this motion should be resolved in Sean’s favor without delay. Justice delayed is justice denied.
First, Sean is clearly be entitled to relief on the merits. There is no “substantial” question for the court to decide. The merits of the case are “so clear” that “plenary briefing, oral argument, and the traditional collegiality of the decisional process will not affect [the] decision.”
Second, there is only one question of first impression in this court, or conflict among the courts on a controlling legal principle, and the issue is not a lynchpin, it could be omitted. The question is if non-negotiable is an exception to the definition of instrument in 514 and technically it could be resolved by simply referring to Congress definition of instrument in UCC Article 3. If that issue were to be an impediment to summary disposition then ignore it, because it’s a mere supporting issue that can be a bar to the 514 charges, but is not the main jurisdictional bar and can be easily omitted to focus on speedy remedy.
Third, the record before the court is sufficient to allow meaningful consideration of the appeal. Although the facts may not be entirely simplistic, the court can thoroughly grasp the issues without full briefing or oral argument.
Fourth, Sean has made a showing of exigency. A delay will substantially further harm Sean who claims he is entitled to have his life, property and rights restored. An expedited schedule for briefing an oral argument will be insufficient to prevent that harm. This is especially true because Sean’s free speech, media, loss of life and property considerations are at stake. Sean’s imprisonment causes an avalanche of irreparable injury including injuring the public right to have Sean be protected media. The longer the delay the more the public has cause to distrust the government and think the IRS targeting scandal is above reproach and the courts are not protecting the peoples rights to be free of oppression. Expediting remedy will restore trust in the courts and government after deep abuse and fractures in the system.
Finally, it is efficient and equitable to resolve the case through summary disposition instead of a “traditional” appellate process “with all the trappings.” Sean believes the courts strained resources are better expended on other cases, and that Sean will still receive all of the consideration that it is due on appeal.
United States v. Fortner, 455 F.3d 752, 754 (7th Cir. 2006) (“Summary disposition is appropriate in an emergency, when time is of the essence and the court cannot wait for full briefing and must decide a matter on motion papers alone.”); Groendyke Transp., 406 F.2d at 1162 (summary disposition may be warranted “where time is of the essence,” including “situations where important public policy issues are involved or those where rights delayed are rights denied”).
I verify the foregoing is true and correct, with firsthand knowledge.
The ninth day of the eleventh month of the year two thousand eighteen
In the interest of justice,
Sean David Morton, all rights reserved