Michael E. Pohlable Reserved for Clerk’s Filing Stamp

453 E. Verdugo Ave. #103

Burbank, CA 91501

866-701-7714

mike@pohlable.com

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

DONALD F. GAFFNEY, et al

UNITED STATES OF AMERICA

Alleged Plaintiff without standing

v.

MICHAEL E POHLABLE

Innocent, Alleged Defendant,

Under Protest

Case # SA CR 07-0033-DOC

Honorable David O. Carter

Courtroom 9D

Special and Restricted Appearance

Without Counsel under Duress

Demand to Vacate Trial date

Demand for Prompt E-transcript of Every

Hearing by email to my address shown above

Demand for Discovery

Demand Recovery of Rights

Demand for Dismissal; Lack of Jurisdiction

Proof of Service

BRIEF MP002 Version 1 – Demand for Discovery, Demand for Prompt E-Transcripts, Demand to Vacate Trial Date, Demand to Repeal Plea, Demand for dismissal, Demand to quash.

“Good intention will always be pleaded for every assumption of power . . . The Constitution was made to guard the people against the dangers of good intentions. There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters.” Daniel Webster

“No person shall… be deprived of life, liberty, or property, without due process of law.” U.S. Constitution – 5^th Amendment

“… statutes which would deprive a citizen of the rights of personal property without a regular trial, according to the course and usage of common law, would not be the law of the land.” Hoke vs. Henderson,15, N.C.15,25 AM Dec 677 as quoted in Bouvier's Law Dictionary Pg. 947- Defining “Due Process of Law”

To all Parties;

I am making this motion on my own behalf without assistance of counsel as guaranteed by the 6^th Amendment of the Constitution. Because of this lack of assistance of counsel I am unable to make any legally binding waivers of any rights, and any rights waived thus far in the proceedings against me must be considered null and void.

The only right I am consenting to waive is my right to a speedy trial. No other oral waiver of rights may be considered, as I will need to verify that this waiver is in my best interest prior to waiving any such right, and being unlearned at the law, I must be able to research the possible consequences of my actions prior to making them.

I am making this motion under protest without having a stated cause of action brought against me. I demand a written cause of action be presented to me within 5 days.

As I do not have a cause of action, nor discovery/evidence/allegations of a plaintiff with standing, I demand this discovery from the prosecution as to the nature of the alleged injury or loss suffered by the unknown plaintiff posing as, “UNITED STATES OF AMERICA” within 5 days.

I also demand discovery as to the alleged connection between myself and the alleged plaintiff as I do not recall any contracts with the alleged plaintiff that are binding upon my free will or in waiver of my constitutionally protected unalienable rights. If this contract exists I demand it be presented as discovery so that I may recall this contract or dispute its authenticity.

I call into question the jurisdiction of this court, as I have not been made aware of any alleged criminal activity based upon the doctrine of Standing. If no plaintiff with standing exists, no case exists. With no case there is no jurisdiction. Within 5 days, if the prosecution has failed to produce evidence of a plaintiff with standing, either in writing or means of other non-oral communications, I demand dismissal of this case with prejudice.

For failing to state a cause of action, failure to bring charges in a court with subject matter jurisdiction, and other irreparable errors, I demand this court quash all evidence, allegations, and proceedings against me.

Table of Contents;

Demand for Prompt E-transcript of Every

Hearing by email to my address shown above Page 1

Special and Restricted Appearance Page 3

Without Counsel under Duress

Demand to Vacate Trial date Page 3

Demand for Discovery Page 4

Demand for Dismissal; Lack of Jurisdiction Page 6

Demand Recovery of Rights Page 6

Proof of Service Page 9

Special Restricted Appearance; Without Assistance Of Council

I am making this motion without assistance of counsel as defined in the Constitution. Legal representation is not assistance of counsel.

If the court insists that legal representation is assistance of counsel I contend that I am without effective assistance of counsel as council has refused to write or file motions in my defense, and has claimed that no cause of action is necessary in criminal proceedings; they only apply to civil proceedings.

I also question the authenticity of the representation appointed to me, as both have been members of the American Bar association which demands in their contract that when a conflict arises between their duty to my rights and a duty to the court system, that the duty to the court must take precedence over my rights. As the appointed representation is first and foremost an officer of the court, and as I, at this present time, believe that this court is party to a criminal conspiracy against my rights, I am loathe to accept this appointment.

I have requested of this court Advisory Council on multiple occasions and have been denied my rights of self representation and assistance of counsel, a potentially criminal denial of due process by this court. I cannot be forced to waive one right in order to exercise another; i.e. I cannot be forced to waive my right to assistance of counsel in order to represent myself. This is denial of due process, and is a complete waiver of jurisdiction.

"We find it intolerable that one Constitutional Right should have to be surrendered in order to assert another." Simons vs. United States, 390 US 389.

I also making this motion under duress as there is no alleged plaintiff with standing. There is no stated cause of action against me. Therefore there is no case and this court, in its full knowledge, is utterly without subject matter jurisdiction. My mandated appearances in this court, both present and all previous appearances, have been made without my consent under duress and do not in any way imply consent to jurisdiction of this court in this matter.

As I have been without assistance of effective counsel to this point, I demand that all waivers of rights be revoked, and all rights restored, to include;

The revocation of the not-guilty plea and the entry of a plea of “demurrer” into the record.

The restoration of all rights waived by entering a not-guilty plea, namely and specifically the right to challenge the laws facially, as this right was waived without my knowledge or consent.

The restoration of any rights not listed here that I am unaware of having waived, or have waived without effective assistance of counsel with the sole exception of the waiver of a right to a speedy trial, as I deem this a necessary concession to allow myself time to both build a case in my defense, and act not taken up by those appointed to me, and to adequately research the laws surrounding this case, or seek adequate assistance of counsel to aid me in these procedures.

Demand to Vacate Trial Date

As the Rules of Federal Criminal Procedure have denied all defendants the right to plea demurrer, the only remedy that can be met is a full dismissal of this case with prejudice. Failure to dismiss this case will result in application for writ from an interlocutory court of appeal.

Rule 54. Application and Exception (a) Courts. These rules apply to all criminal proceedings in the United States District Courts
The words ''demurrer,'' ''motion to quash,'' ''plea in abatement,'' ''plea in bar'' and ''special plea in bar,'' or words to the same effect, in any act of Congress shall be construed to mean the motion raising a defense or objection provided in Rule 12.

This rule abrogates my right to demur instead of plea.

General rule: Article 4, section 2 of the constitution: “Section 2. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.”

If I can demur in federal court and some of the states this is my right under Article 4, Section 2. To demur in a criminal case is a right; no state law or court rule may take away my unalienable right to demur without due process.

 Demand for Discovery

As all requests to my representation past and present in this matter have met with resistance to permitting my acquisition of discovery, and even allegations that certain elements of a crime are not necessary for criminal proceedings and only pertain to civil proceedings, I move the court to demand discovery from the prosecution for me, as a pro se litigant, to create a defense.

I also demand discovery on the identity of the alleged plaintiff, as well as discovery of all evidence of loss or harm suffered by the alleged plaintiff. The listed plaintiff is a corporation; corporate persons must be aggregates of natural persons whose property rights must have been infringed upon in order to convey either personal standing, or standing for the corporation.

I also demand discovery of the Corpus Delicti; a statement of actual loss or harm suffered because of my actions.

“A party has standing when he or she has a sufficient stake in a justiciable controversy.  Sierra Club v. Morton, 405 U.S. 727, 731…To establish standing it must be shown that the party suffered injury in fact (economic or otherwise) for which relief is likely to be addressed.  See Warth v. Seldin , 422 U.S. 490, 501…it may not be abstract, conjectural or hypothetical.  Allen v. Wright, 468 U.S. 737, 791…”  Peregard v. Cosmides, 663 So.2d 665, 668.

“Standing in no way depends on the merits of the plaintiff’s contention that particular conduct is illegal.”  Watkins v. Resorts Intern. Hotel & Casino, 591 A.2d 592, 601 (N.J. 1991).

As the corpus delicti is what must be proven for both standing, and proven beyond a reasonable doubt by the prosecution for a guilty verdict, and I have yet to see an allegation that the corpus delicti even exists, I cannot proceed further without this. Without this allegation, the court is utterly without jurisdiction as there is neither case nor controversy and this court cannot legally proceed.

“The right to adjudicate concerning the matter in the given case. To constitute this there are three essentials; First court must have cognizance of the class cases to which the one to be adjudicated second the proper parties must be and third the point decided upon be in substance and effect within the issue.” Reynolds v Stockton 140 U.S. 254 11 Sup Ct 773 35 L Ed 464 Bouvier's Law Dictionary and Concise Encyclopedia

"Proof of the corpus delecti is required in all criminal cases...There are three basic elements in the proof of a crime: (1) the occurrence of loss or injury, (2) criminal causation of that loss or injury and (3) the identity of the defendant as the perpetrator of the crime.  However, it is firmly established in this State that the term corpus delecti embraces only the first two of these elements-loss or injury and criminal causation."  State v. Hill, 221 A.2d 725, 728.

“The plaintiff must show that he himself is injured by the challenged action of the defendant.  The injury may be indirect, see United States v. SCRAP, 412 U.S. 669, 688, 93 S.Ct. 2405, 2416, 37 L.Ed.2d 254 (1973), but the complaint must indicate that the injury is indeed fairly traceable to the defendant’s acts or omissions.  Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42, 96 S.Ct. 1917, 1925-1926, 48 L.Ed.2d 450 (1976); O’Shea v. Littelton, 414 U.S. 488, 498, 94 S.Ct. 669, 677, 38 L.Ed2d 674 (1974); Linda R. S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973).”  Vil. of Arlington Hts. v. Metro Housing Dev., 429 U.S. 252, 262. 

“Component parts of every crime are the occurrence of a specific kind of injury or loss, somebody’s criminality as source of the loss, and the accused’s identity as the doer of the crime; the first two elements are what constitutes the concept of “corpus delecti.”  U.S. v. Shunk, 881 F.2d 917, 919 C.A. 10 (Utah). 

As well as failing to invoke jurisdiction, failing to present the corpus delicti to the defendant is a violation of the 6^th amendment.

“In all criminal prosecutions, the accused shall enjoy the …to be informed of the nature and cause of the accusation”

I also demand discovery on the statements and waiver of rights, both theirs and mine, by the Confidential Informant. I do not believe certain information gathered through the Confidential Informant was legally obtained and I need this information in order to properly challenge this evidence.

Demand for Dismissal with Prejudice

The prosecutor MUST establish standing for their client in this case. Failure to establish standing has resulted in a failure to invoke jurisdiction of this court.

Standing is the same wherever you go, the important elements are (1) the violation of a right; and (2) injury.  The only "authority" one should need is to look at the Declaration of Independence for the only reason for the establishment of an American government:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed..."

This is why standing and jurisdiction must always involve a plaintiff's rights.  

It's simple logic and common sense: 

(1) the government was established/instituted for one purpose i.e., to secure/protect rights;

(2) the courts being a part of the government have the same singular purpose i.e., to secure/protect rights;

(3) the courts' jurisdiction has one purpose i.e., to secure/protect rights;

(4) Standing to invoke a court's jurisdiction requires the allegation a right is being violated.

Standing applies in criminal cases as cited above. 

Government has one purpose

"governments ... are established to protect and maintain individual rights.”  Arizona constitution article II § 2. 

My alleged actions violate no one's rights and injure no one. 

The prosecutor has not claimed otherwise, and I demand dismissal of this frivolous case for failure to state a cause of action, failure to prove standing, and failure to invoke jurisdiction of this court.

This court, whatever it may be, has not acquired subject matter jurisdiction as there is no stated show of cause, no alleged victim, no alleged corpus delicti, and no stated claim of declaratory relief that may be met by a ruling in this court.

“The right to adjudicate concerning the matter in the given case. To constitute this there are three essentials; First court must have cognizance of the class cases to which the one to be adjudicated second the proper parties must be and third the point decided upon be in substance and effect within the issue.” Reynolds v Stockton 140 U.S. 254 11 Sup Ct 773 35 L Ed 464 Bouvier's Law Dictionary and Concise Encyclopedia

Without subject matter jurisdiction there can surly be no personal jurisdiction, and if there is a claim of personal jurisdiction it is irrelevant, as subject matter jurisdiction cannot be waived.

“[A] jurisdictional defect cannot be waived[.]” In State v. Dennis, 216 W .Va. 331, 607 S.E.2d 437

“As a prerequisite to issuing a valid order or judgment, a court must have both subject matter and personal jurisdiction”. Albrecht v. Metro Area Ambulance, 1998 ND 132, ¶ 10, 580 N.W.2d 583.

“The question of whether a court has subject matter jurisdiction can be raised at any time in the proceeding.” N.D.R.Civ.P. 12(h)(3).

"Issues involving subject matter jurisdiction cannot be waived and can be raised sua sponte at any time." Earnest v. Garcia, 1999 ND 196, ¶ 7, 601 N.W.2d 260.

I challenge the jurisdiction of this court and demand dismissal of these unfounded frivolous allegations, and the full and immediate restoration of all my liberties and rights to include;

The right to travel freely.

The right to associate with whom I please.

My passport.

Ability to enter public transit terminals.

Reside where and when I please without having to report to anyone.

Make a living on my own terms without reporting to anyone.

Property rights.

Contract rights.

Privacy rights.

2^nd Amendment Rights.

4^th Amendment Rights.

All other rights not listed that have been criminally usurped by this court in violation of U.S. Code Title 18 Chapter 13 Sections 241 and 242.

Judges Are Liable If Clear Absence of All Jurisdiction

As I am without Assistance of Counsel, there is no stated cause of action, there is no plaintiff with standing alleged, and therefore there is no case nor controversy for this court to preside over; I have relied upon the adjudged decisions of the Supreme Court of the United States, including but not limited to Johnson v. Zerbst supra., and said judges will be subject to liability if he acted in clear absence of jurisdiction. As held in the adjudged decision of the Supreme Court of the Unite States in Stump v. Sparkman, 435 U.S. 349, 356,357 (1978), to wit:

A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only *357 when he has acted in the "clear absence of all jurisdiction." [FN7] 13 Wall., at 351.

Should this court and the prosecutor proceed after having Notice of lack of jurisdiction of the subject matter, until a stated cause of action and a plaintiff with standing are produced, and personal jurisdiction until I can obtain Assistance of Counsel or feel comfortable waiving this right, then each will become personally liable as a minimum, to criminal charges under U.S. Code Title 18 Chapter 13 Sections 241 and 242 as well as civil charges under Title 42 Chapter 12 Subchapter I section 1983.

Judicial Lynching and Mock Trials.

And further, to continue against me without Assistance of Counsel, without jurisdiction, and to preside over a case where the only claim against me is for the claim and exercise of a constitutionally protected right is “judicial lynching.” Arising under the adjudged case of State v. Lattimar, 111 S.E. 510, 511 (1922): to wit:

But he is entitled to a fair and impartial trial, to the calm, deliberate, and uninfluenced judgment of his peers. Orderly and constituted government demands such trial. It is a safeguard in which all members of society are interested, and which should be jealously upheld and guarded. A judicial lynching is a graver and more startling crime than a lynching by the irresponsible rabble. It undermines the foundation of orderly government, and weakens respect for law and order. Much of the success of any form of government depends upon the opinion of those governed, of its power to protect them in the administration of the laws, and in the wisdom and integrity of those who govern. When the courts do not uphold the laws, respect for law and for government ceases. There should be no compromise with the spirit of lynching for any crime. The mob in Jerusalem was clamoring to Pilate to crucify the Savior. He "washed his hands" of guilt, and released the Christ to the "tender mercies" of his accusers, thereby perpetrating the greatest judicial crime of the ages. The representative of imperial Rome compromised with the congregated doers of evil. It is little wonder that the empire declined and fell. [Emphasis added]

This court shall take mandatory judicial notice of State v. Lattimar, 111 S.E. 510 (1922).

And further we find in McSwean v. State, 57 S. 732, to wit:

[W]hich the record fails to show that he so waived, and that his trial was in all things right; but, sitting here as a court, we can only look to the record, to this judgment and this record, which will be regarded as a precedent for all time, and, if we thus allow presumptions to be indulged, to supply omissions of these matters by the Constitution and the statutes required to be recorded, it will soon be deemed scarcely necessary to show by the record any of the important safeguards which the Constitution and statutes and the common law have so long and so strongly asserted as a shield of the liberty and life of the citizen. It will not do to say that these forms were intended only to protect the citizen against the despotism of crowns and tyrants; that he needs no such forms to protect him in this state during these times. It has been well said by a great jurist that there is no despotism so terrible, so cruel, and so unrelenting as that of the people themselves in times of great tumult and excitement, *739 when passion and rage are stirred. These safeguards, these stern and inflexible rules of law, are, during such times of excitement, the only protection that the accused citizen has against mock trials and judicial lynchings. In this connection it may be well to remember the words of Black-stone, when comparing the English law with that of other countries. He said: "It will afford pleasure to an English reader, and do honor to the English law, to compare it with that shocking apparatus of death and torment to be met with in the criminal codes of almost every other nation in Europe. And it is, moreover, one of the glories of our English law that the species, though not always the quantity or degree, of punishment is ascertained for every offense; and that it is not left in the breast of any judge, nor even of a jury, to alter that judgment, which the law has beforehand ordained for every subject alike, without respect of persons; for, if judgments were to be the private opinions of the judge, men would then be slaves to their magistrates, and would live in society without knowing exactly the conditions and obligations which it lays them under. And, besides, as this prevents oppression on the one hand, so, on the other, it stifles all hopes of immunity or mitigation, with which an offender might flatter himself, if his punishment depended on the humor or discretion of the court."

Verified Affidavit of Michael Eugene Pohlable

I, Michael Eugene Pohlable, do swear (or affirm) under the penalties of perjury that the forgoing and the following facts are true and correct.

1. My true name is Michael Eugene Pohlable.

2. I am a sovereign citizen of these united states of America

3. I am without effective Assistance of Counsel as secured in the Sixth Amendment of the Bill of Rights and case law defining effective counsel.

4. I have already been deprived of liberty without appointment of assistance of counsel by this court, and have suffered undue stress by being forced to proceed without proper, adequate council.

5. This court is knowingly operating without jurisdiction, and the deprivations of my liberty are, thus far, criminal acts against my person.

6. The limitations placed upon my by this court have created numerous conflicts between myself and my employer, resulting in my need to pursue other work.

7. This court’s apparently illegal confiscation of my passport has made obtaining work next to impossible.

8. I was not aware at the time of entry that entering a not-guilty plea with the court was a waiver of certain rights, and request that these rights be restored, namely the right to file motions to Quash and challenge the laws facially and constitutionally.

Further I sayeth naught until I have obtained assistance of council.

My Hand,

Michael Eugene Pohlable

Proof Of Service

I , Michael Eugene Pohlable, mike@pohlable.com hereby declare the following under penalty of perjury:

On, at I served this document #07-0033-002 upon the prosecutor in this case by

On, at This motion was filed at the filing window in court by

Signed:

Michael Eugene Pohlable

__________________ Date: ______________