UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

xxNOxx xxxxxx xxxxxxx                                         9^th Circuit Case No.    09-15562

Appellant,                     vs,                                        No. 1:08-CV-1538 AWI GSA

FEDERAL ELECTIONS COMMISSION,

Appellee

PETITION FOR REHEARING IN BANC

1.   The proceeding involves a question of exceptional importance and substantially affects a rule of national application in which there is an overriding need for national uniformity. FRCP 12 (d); Result of Presenting Matters Out-side the Pleadings: If, on a motion under Rule 12 (b) (6) or 12 (c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.

2.  This En Banc “Rehearing Suggestion” is the most important matter on any court calendar, the outcome whether in or out of court will affect the world at large.

3.  Acts as they are described herein demonstrate the planned failure of key federal agencies of Government, "within the meaning of 28 U.S.C. 2674”. In the absence of the performance of their statutory duty each tortfeasor did willfully assist the delivery of criminally financed propaganda. That established a coup d’état and toppled the legitimate United States Government from within. Typically a coup d’état uses the existent government’s power to assume political control of the country. “This coup d’état consisted of the infiltration of a small, but critical, segment of the federal apparatus, which was then used to displace the influence of law from the control of the remainder”, thus, armed force (either military or paramilitary) is not the defining feature of this coup d’état. The Federal Elections Commission “FEC” participated in qualifying the deposing operation by allowing their (strategic, tactical, political) consolidation and expects to continue receiving the deposed government’s judicial surrender to further affect interstate commerce. Therefore the need to review the Court Rules and Federal Codes in light of 28 U.S.C. Sections 1331 ~ 1332 and 18 U.S.C. Sections 1964 (a) (b) (c) (d) will identify specific “per se” violations of law.

4.  Although I am not an attorney I am literate and by this En Banc rehearing suggestion I do pray to influence the reestablishment of a law abiding civil society.

5.    § 25.701 of Title 47 Code of Federal Regulations Public interest obligations. (b) Political broadcasting requirements (4) (iv) Burden of proof. A candidate requesting equal opportunities of DBS providers or complaining of noncompliance to the Commission shall have the burden of proving that he or she and his or her opponent are legally qualified candidates for the same public office.

6.   Under no set of publicly known circumstances could Appellant being a legally qualified candidate ever prove AKA [?] OBAMA to also be a legally qualified candidate for the office of President of the United States, AKA/Obama would need a mother at the time of his birth that was of legal age, he would need a father who was a citizen Of the United States.

7.   No hand that is placed on any of these documents can point to one single piece of evidence supported by signature or affirmation given under the penalty of perjury to refute the claim that on January 20, 2009. The Chief Justice of the United States Supreme Court stood before the assembled host to swear or affirm into office an AKA/illegal alien as President of the United States.

8.   At the time Direct Broadcast Satellite “DBS” license holders Direct TV and Dish Network first began transmitting paid advertising on behalf of Candidates seeking public office. They were obligated to inform the public of the true identity of the advertisers. Title 47 C.F.R. §73.1212 Sponsorship identification 2 (e) fully and fairly disclose the true identity of the person. All commercial broadcast stations licensed through Federal Communication Commission “FCC” have the same license obligation including and not limited to Walt Disney Company, News Corporation, Viacom, Time Warner and all other legally bound broadcast stations that received money for transmitting an advertisement message.

9.   When called in early January 2009, to come before the Supreme Court of the United States in Berg  v. Obama No.08-570 to defend the Rule of Law, neither the FEC nor the Solicitor General provided a legal comment or attempted to show any concern for statutory law whatsoever.

10.  Upon information and belief, the FEC further concealed AKA/campaign fraud, wire fraud, mail fraud, money laundering and foreign government aid.

11.  As yet, no agency of government has been separated from this open-ended fraud placed before the nation. The Solicitor General also represents the FCC and the oversight responsibility of the commercial broadcasters to verify candidate qualifications. Which during the 2008 election cycle did not happen, FCC has the regulatory responsibility Title 47 Code of Federal Regulations §73.1940 To legally qualify candidates for public office.

Further more, TITLE 18 > PART I > § 2

12.  §2. Principals (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, or induces or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

TITLE 18 > PART 1 > CHAPTER 96 > §1962

13.  §1962 Prohibited activities (a) It shall be unlawful for any person who has received any income derived directly or indirectly, from a pattern of racketeering activity. It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.

14.   (c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.

15.  (d) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section.

TITLE 18 > PART 1 > CHAPTER 96 > §1964

16.  §1964. Civil remedies (a) The district court of the United States shall have jurisdiction to prevent and restrain violations of section 1962 of this chapter by issuing appropriate orders, (c) Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefore in any appropriate United States district court and shall recover three fold the damages he sustains and the cost of the suit.

17.   Appellant’s message conflicted with the full implementation of the totalitarian bureaucratic agenda. Where-in only anti-American programs worthy to stir a perpetual attack against truth; justice and the American way are deemed fit to be advertised. What matters most to totalitarian bureaucrats is destroying how people make a living and piling an even greater cost of living upon them. Legislation should have by now been given to all vehicle manufactures that once a proper solution is proven [which can be done by Appellant see http://RunWith.info] to work: no new cars or trucks are to be sold in the United States requiring fuel for operation this would inspire manufactures and most importantly not cost taxpayers. Here in the absence of the opposition having a legally justifiable defense, Appellant is suggesting that the Court for all recipients and heirs of the Constitution of The United States: Call for a vote to reestablish the republic by first weighing the merits of this case and then follow each detailed prescription in law.

FACTUAL BASIS FOR CLAIM

18.   Conspirators knew they were using the goodwill and legitimacy associated with a government commodity (the right to broadcast media content) to further their conspiracy. Each fraudulent omission or commission helped to bring about their planned coup d’état. The failure of government to regulate DBS License Holders and their contracted media counter-parts, who knowingly maintain their fraudulent alliance, which also fully involves their professional trade groups and associations: The activities of which further affect interstate and foreign commerce thereby they do extend and by way of third party support the further concealment of their separate and independent responsibilities to make known the material fact “that of” the AKA/Illegal Alien broadcaster’s true identity.

19.  The FEC chose to further benefit each of the entangled co-conspirators by threatening Appellant and that act was the catalyst for the Ex Parte Application to all 50 States filed in the District Court October 14, 2008. The FEC willfully ignores statutory law, the Bill of Rights and the Constitution of the United States to promote this coup d’état. Information concerning: Beverly v. FEC is not a part of FEC’s public notice postings. Terminology specific to sponsorship identification offered by FEC promotes a convent supply of “A” typical election topic misnomers for the FEC to inject while the FCC conceals the commercial broadcasters responsibility to legally qualify all candidates for public office.

20.   Based upon information and belief concerning FEC’s failure to condemn AKA/Obama’s entire campaign as it was known to be a fraud, to the FEC and all who profited from the collecting of over three quarter billion dollars of fraudulently solicited contributions, in addition to the numerous statutory violations committed while receiving illicit bundles of criminally financed set-asides to fuel the un-track-able illegal support, multi millions in undocumented small money sources and foreign government aid.

21.  The FEC submitted to the Court’s jurisdiction and venue when the FEC raised a defense by providing material to the Court containing matter outside the pleadings. FEC [Defendant’s Exhibit 1] placed before the District Court and not excluded.

22.  Jurisdiction and venue are proper due to Common and Federal Law, the FEC is an independent administrative agency vested with exclusive jurisdiction over civil enforcement of the Federal Election Campaign Act. The FEC’s exclusive jurisdiction includes the authority to litigate in the Court without the prior approval of the Solicitor General.

23.  This Court’s jurisdiction is based upon 28 U.S.C. §§ 1331, 1332: 18 U.S.C. § 1964 (a) (b) (c) (d) and the failure to perform statutory duties on the part of federal agencies of Government," within the meaning of 28 U.S.C. 2674.

24.  In light of Title 47 Code of Federal Regulations §73.1940 To legally qualify candidates for public office.

25.  Broadcast Satellite “DBS” license holders and their contracted station counterparts have no legitimate government defense of immunity. Each organization consciously and voluntarily made an intentional decision to disregard their verification duty over the run of the longest campaign in U.S. History. In exchange, each setup their separate facilities, staff, agents and trade associations to be available and did use them in this open-ended fraud. Each broadcast enterprise continues to coordinate their federally licensed enterprises in defiance of their duties or consequences, deliberately flouting their reckless disregard for the rule of law at Appellant’s expense.

26.  Title 47 USC - § 312. Administrative sanctions (a) Revocation of station license…The Commission may revoke any station license …(3) for willful or repeated failure to operate substantially as set forth in the license; (4) for willful or repeated violation of, or willful or repeated failure to observe any provision of this chapter or any rule or regulation of the Commission authorized by this chapter .

27.    FRCP Rule 67. Deposit into Court (a) Depositing Property. If any part of the relief sought is a money judgment or the disposition of a sum of money or some other deliverable thing, a party – on notice to every other party and by leave of court – may deposit with the court all or part of the money or thing, whether or not that party claims any of it.

TITLE 2–CHAPTER 14–FEC SUBCHAPTER I –

28.   § 441f. No person shall knowingly accept a contribution made by one person in the name of another person.

29.  § 441h. Fraudulent misrepresentation of campaign authority (a) In general
No person who is a candidate for Federal office or an employee or agent of such a candidate shall--

(1) fraudulently misrepresent himself or any committee or organization under his control as speaking or writing or otherwise acting for or on behalf of any other candidate or political party or employee or agent thereof on a matter which is damaging to such other candidate or political party or employee or agent thereof; or

(2) willfully and knowingly participate in or conspire to participate in any plan, scheme, or design to violate paragraph (1).

(b) Fraudulent solicitation of funds. No person shall--

(1) fraudulently misrepresent the person as speaking, writing, or otherwise acting for or on behalf of any candidate or political party or employee or agent thereof for the purpose of soliciting contributions or donations; or

(2) willfully and knowingly participate in or conspire to participate in any plan, scheme, or design to violate paragraph (1).

30.    Appellant requests Partial Summary Judgment under Rule 56 and expedited Order transferring relevant portions of this petition to the District of Columbia to further petition officials on Appellant’s behalf.

31.   District of Columbia. Code Sections 16-3501, 16-3502, and 16-3503 Quo Warranto are the Constitutional means available to see a usurper removed or to have a alleged usurper face an inquiry as to his eligibility.

32.  If anything delights or instructs in history, it is that which is described in detail; and if any lesson is useful to the citizens who govern republics, it is that which demonstrates the cause of the hatreds and dissensions in the republic, so that, having learned wisdom from the perils experienced by others, they may maintain themselves united. And if the divisions of any republic were ever noteworthy, these today in America certainly are so. The greater part of the other republics of which we have any knowledge were content with one division, by which, in the final result, they either increased or ruined their estates.

33.  The Secret Service is authorized by law to protect: The president, the vice president, or other individuals next in order of succession to the Office of the President and the immediate families of the above individuals

34.  The mission of the United States Secret Service is to safeguard the nation's financial infrastructure and payment systems. To preserve the integrity of the economy, protect national leaders, visiting heads of state, government designated sites and National Special Security Events “NSSE”.

35.  Signed on December 19, 2000 was an amendment to Title 18, USC § 3056 which codified PDD-62. Now, with the support of federal law, the Secret Service is authorized to participate "in the planning, coordination and implementation of security operations at special events of national significance."

36.  May it please the Court to request the Secretary of Homeland Security to designate 9^th Circuit Case No. 09-15562 a National Special Security Event (NSSE), and that the Secret Service assume its mandated role as the lead agency for the design and implementation of the operational security plan, to protect a national leader next in succession to the Office of President of the United States.

37.  A judge is in a unique position to contribute to the improvement of the law, the legal system and the administration of justice, including revision of substantive and procedural law. Judicial deliberation is Appellant’s right under FRCP 12 (d). Rules become meaningless when justice becomes an arbitral grant that must follow a survival of irrelevant case law where-in a reasonable person would have observed in the original panel herring the cases cited where the government clamed immunity there actually was a legitimate government interest to protect. Holding factually unrelated issues up to twist a procedural subversion cannot be made valid to obtain a pretrial dismissal when those seeking immunity from a contracted obligation are cloaked entirely in their internationally planned breach of the Nations communications monopoly to commit this high crime of fiduciary fraud. A fiduciary cannot have a conflict of interest. The overriding duty of a fiduciary is the requirement of undivided loyalty.

38.  Parties may not be immune from jurisdiction when there is no valid government interest to protect by doing so and should be repudiated in light of the astoundingly obvious argument before the Court. The Federal Courts have ultimate power to resolve questions of “Constitutional Fact”. Inter-system transfer has been codified under the federal transfer statute. Having four basic elements for removal and Defendant-Appellee has the Burden of proving all four elements before a transfer can occur.

39.   The duty to promote public confidence in the integrity and impartiality of the government applies to all including the discharge of the judge’s administrative responsibilities.

43. En banc rehearing consideration is suggested.

Respectfully submitted, July 31, 2009   _________________________________

                                                                       xxNOxxxx xxxxxx xxxxxxx ~ Pro Se

Natural = Not produced or changed artificially; Honest original, Not altered, treated or disguised, genuine, bona fide, authentic, real, true, unquestionable, Not counterfeit, fake, illegitimate or bogus.

UNITED STATES LAW INCLUDES A PRESUMPTION THAT THE NATURAL BORN CITIZEN CLAUSE HAS A UNIQUE EFFECT OTHER THAN THAT OF A 14TH AMENDMENT CITIZEN.

Chief Justice Marshall delivered the opinion of the Court in Marbury v. Madison.  His “form without substance” quote truly made me wonder what he would say about the natural born citizen clause.

As I thought about it, Chief Justice Marshall’s voice came to me right from the pages of that opinion and I realized suddenly that he did address the issue when he said:

“It cannot be presumed that any Clause in the Constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.”

This kills the argument that being “a 14th Amendment citizen” has the same effect on Presidential eligibility as being a “natural born citizen”.  If being a “citizen” had the same exact effect as being a “natural born citzen” then the clause would have no effect.  As stated by Chief Justice Marshall, “such a construction is inadmissible.”

Holy Cow.  It’s more like the elephant in the room.

The 14th Amendment only mentions the word “citizen”.  It does not use the words “natural born citizen”.  And it makes no distinction between a “citizen” born in the US and a “citizen” naturalized in the US.  Under the 14th Amendment, they are equals.  The 14th Amendment certainly does not state that being a “citizen” satisfies the qualification of Article 2  Section 1 Clause 5.

Those who are trying to read such an interpretation into the 14th Amendment do so at the ignorance of Chief Justice Marshall’s landmark opinion in Marbury v. Madison. Those cunning arguments would leave the “natural born citizen” clause without effect.  Such a construction is inadmissible.

Chief Justice Marshall provided only one exception to this rule, “such construction is inadmissible, unless the words require it”. The words “natural born citizen” don’t require the clause to be construed to mean the same thing as the word “citizen”.  The exact opposite is true. The plain text of the Constitution shows that the framers allowed persons to become Senators and Representatives if they were “Citizens”, but as to the office of President they required a “natural born citizen”.  So the exception is irrelevant here.

Marbury v. Madison creates a standing presumption against any interpretation that would render the “natural born citizen” clause to have no effect independent of being a “citizen”. Chief Justice Marshall insisted such a construction is inadmissible.

INADMISSIBLE.

Inadmissible in this context means such an argument is not competent to be considered.  It’s essentially no different from the situation where a piece of evidence is excluded from trial.  It means you can’t even argue such a thing before the court.  Please think about this carefully.  This means any argument that a “14th Amendment citizen” is the same as a “natural born citizen” - for purposes of  effecting POTUS eligibility - is not competent to be considered by the court.

If the natural born citizen issue were ever heard on the merits, the court hearing the case must recognize that a presumption exists requiring the natural born citizen clause to have independent effect from all clauses which just refer to “citizen”.

Effect is the key.

What is the independent effect attributed to the “natural born citizen” clause?  The effect  is that just being a “citizen” isn’t enough to satisfy the requirement of Article 2 Section 1 Clause 5 which demands that the President of the United States be a “natural born citizen”.

This means that under current United States law, the “natural born citizen” clause is presumed to mean something other than a “14th Amendment citizen”.  And no other construction is even admissible.
 

You can take all the law review articles, emotional pleas claiming the natural born citizen clause is obsolete, the 14th Amendment arguments, Wong Kim Ark, and every main stream media barker, throw them before the SCOTUS altar, and make them kneel to Chief Justice Marshall and the framers.

SCOTUS has spoken on this issue, and it said the “natural born citizen” clause, being a clause directly written into the text of the Constitution, is presumed to have a unique and independent effect.

Of course it’s well known that each Constitutional clause must have an independent effect.  But I don’t believe any other commentary has been published exposing this legal presumption in favor of the “natural born citizen” clause which also renders other arguments inadmissible.  By other arguments, I refer to all theories claiming that a 14th Amendment “citizen” born on US soil satisfies the Constitutional qualifications for President.

Regardless,  I must give credit to my sister (an ex prosecutor) for having brought the independent legal effect argument to my attention while Donofrio v. Wells was still pending with SCOTUS.  But without having Chief Justice Marshall’s brilliant opinion from Marbury v. Madison in front of me, I didn’t grasp the spectacular power of the presumption.  So I’ll leave you with those words once more.  Please give them your utmost concentration:

“It cannot be presumed that any clause in the Constitution is intended to be without effect; and therefore such construction is inadmissible…”

Leo C. Donofrio 03.16.2009

* If Obama would have been a U.S. citizen, 8 USC §1481(a)(2) provides loss of nationality by native born citizens upon "taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state ... after having attained the age of eighteen years," in violation of 8 U.S.C. §1401(a)(1). Since Indonesia did not allow for dual citizenship, when Obama got that Indonesian passport in 1981, when he was 20 years old, he effectively renounced any U.S. citizenship he may have had.

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