Moose v. Krueger
Filing
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ORDER & OPINION entered by Judge Joe Billy McDade on 12/20/2016. For the foregoing reasons, Petitioner's Motion for Leave to Appeal In Forma Pauperis (Doc. 15 ) is DENIED. Pursuant to Federal Rule of Appellate Procedure 24(a)(4) the Clerk is or dered to immediately notify the parties and the Seventh Circuit Court of Appeals that this Court has denied Petitioners motion and hascertified that the appeal is not taken in good faith because it is without merit. SEE FULL WRITTEN ORDER & OPINION. (JS, ilcd)
E-FILED
Wednesday, 21 December, 2016 10:02:55 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
THIRPLUS MOOSE,
Petitioner,
v.
J.E. KRUEGER, Warden,
Respondent.
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Case No. 1:16-cv-01403-JBM
ORDER & OPINION
This matter is before the Court on Petitioner Thirplus Moose’s Motion for
Leave to Appeal in forma pauperis. (Doc. 15). For the reasons that follow, Petitioner’s
motion is denied.
BACKGROUND
Petitioner pleaded guilty to conspiracy to commit bank robbery (Count 1),
armed bank robbery with forcible restraint (Count 2), and using and carrying a
firearm during and in relation to a crime of violence (Count 5). Petitioner was
sentenced by the United States District Court for the Western District of Missouri to
a total of 420 months of incarceration. Under the terms of the plea agreement,
Petitioner waived his right to appeal his conviction or sentence, and the waiver was
upheld on direct appeal.
On August 9, 2016, Petitioner filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241. Moose v. United States, No. 16-cv-01296-JES (C.D. Ill.
Aug. 19, 2016). The petition raised several challenges to the jurisdiction of the United
States to indict, sentence, or imprison him; all of the challenges were based on his
status as a “Private Aboriginal Indigenous Moorish American National . . . of sentient
capacity . . . .” Id. On August 19, 2016, the Court denied Petitioner’s frivolous petition,
because the laws of the United States apply to all persons within its borders. Id.
(citing United States v. Phillips, 326 F. App’x 400 (7th Cir. 2009) (noting that district
courts have jurisdiction over defendants brought on charges of violations of federal
law and rejecting “sovereign citizen” arguments as frivolous)).
On September 15, 2016, less than a month after the court rejected Petitioner’s
§ 2241 claim, Petitioner filed an “Emergency Petition for Constitutional Writ of
Habeas Corpus” pursuant to 28 U.S.C. § 2242. Compl., Moose v. United States, No.
16-cv-01347 (C.D. Ill. Sept. 28, 2016). Again, Petitioner made frivolous “sovereign
citizen”1 claims, which primarily consisted of random legal quotations without
explanation or legal argument. See id. The Court deciphered from the quotations that
Petitioner’s main argument was that there was no jurisdiction over the land where
petitioner was arrested. Id. at 7. Specifically, Petitioner argued that the government
did not have jurisdiction over the land where he was arrested because the Governor
Although Petitioner did not use the term “sovereign citizen” the Court labeled his
claim as such because of the substance of Petitioner’s argument. “Sovereign citizens
believe the government is operating outside of its jurisdiction and generally do not
recognize federal, state, or local laws, policies, or government regulations.” Federal
Bureau of Investigations, Sovereign Citizens: An Introduction for Law Enforcement
1
(2010),
available
at:
http://www.mschiefs.org/wpcontent/uploads/2012/05/Sovereign_Citizens_Intro_For_LE.pdf. Petitioner’s main
argument is that the federal government was operating outside its jurisdiction
because the Missouri governor did not cede jurisdiction over the land where he was
arrested to it and, therefore, the government did not have jurisdiction to arrest him.
The Court labeled it a “sovereign citizen” argument based on its substance and not
the technically language Petitioner employed.
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of Missouri did not cede jurisdiction to the federal government pursuant to 40 U.S.C.
§ 3112. Id. at 12.
Again, the Court denied Petitioner’s claims. The Court explained that the laws
of the United States apply to all persons within its borders, including Petitioner. Op.,
Moose, No. 16-cv-01347, at 5 (citing United States v. Phillips, 326 F. App’x 400 (7th
Cir. 2009)). The Court explained that it considered these types of claims to be
“sovereign citizen” arguments and that they have no merit. Id. Furthermore, the
Court warned Petitioner that making future “sovereign citizen” claims would result
in the type of sanctions imposed by the Seventh Circuit Court of Appeals in Alexander
v. United States, 121 F.3d 312, 315 (7th Cir. 1997). Moose, No. 16-cv-01347, at 5.
On October 17, 2016, just nineteen days after receiving his warning from the
Court, Petitioner filed another habeas corpus Petition. (Doc. 1). Again, Petitioner
brought forth the same claims that he had brought the two previous times. Id. at 1.
Petitioner claimed again that there was no jurisdiction over the land where he was
arrested because the Governor of Missouri did not cede jurisdiction to the federal
government pursuant to 40 U.S.C. § 3112. Id. This was identical to the argument the
Court had previously rejected and that the Court had warned Petitioner from making
again.
Again, the Court rejected the argument. (Doc. 2 at 4). Because Petitioner chose
to ignore the Court’s warning and file another habeas petition, which brought forth
the same frivolous arguments that had already been rejected twice, the Court
sanctioned Petitioner with the same sanctions imposed by the Seventh Circuit Court
of Appeals in Alexander, 121 F.3d at 315. (Doc. 2 at 5).
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On November 7th, Plaintiff filed a Motion for Reconsideration. (Doc. 4).
Petitioner argued that he did not file another “sovereign citizen” petition; rather, he
only argued that there was no jurisdiction over the lands where he was arrested
pursuant to 40 U.S.C. § 3112 because the Governor of Missouri had not ceded
jurisdiction of that land. Id. at 1.
The Court denied Petitioner’s Motion for Reconsideration, because Petitioner
was not arguing that the Court had made a manifest error of law or fact. (Doc. 5 at 35). Nor was Petitioner arguing that there was newly discovered evidence. Id. Rather,
Petitioner was making the same argument that the Court had rejected three previous
times and that the Court had warned Petitioner against making again. Id. The Court
explained, again, that 40 U.S.C. § 3112 was not the applicable statute, because § 3112
establishes the law for creating federal land and plaintiff was not arrested on federal
land. Id. Therefore, the Court rejected Petitioner’s Motion for reconsideration. Id.
On November 18, 2016, Petitioner filed a Notice of Appeal. (Doc. 6). Petitioner
is appealing the Court’s decision in its rejection of his Petition for Habeas Corpus. Id.
Petitioner is also appealing the denial of the Motion for Reconsideration and the
sanctions the Court imposed. Id.
On December 9, 2016, Petitioner filed a Motion for Leave to Appeal in forma
pauperis. (Doc. 15).
LEGAL STANDARDS
Under 28 U.S.C. § 1915(a), an indigent prison litigant may pursue an appeal
by filing an affidavit that includes a statement of all assets such prisoner possesses,
and affirms that the prisoner is unable to pay court fees or provide security therefor.
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The affidavit must also state the nature of the appeal and the affiant’s belief that he
is entitled to redress. The prisoner must also submit a certified copy of his trust fund
account statement (or institutional equivalent) for the six month period immediately
preceding the filing of the complaint or notice of appeal, obtained from the
appropriate official of each prison at which the prisoner is or was confined. Section
1915(a)(3) also explicitly provides an “appeal may not be taken in forma pauperis if
the trial court certifies in writing that it is not taken in good faith.” An appeal is taken
in good faith if “a reasonable person could suppose that the appeal has some merit.”
Walker v. O’Brien, 216 F.3d 626, 632 (7th Cir. 2000).
DISCUSSION
Although Petitioner has complied with a number of the requirements of §
1915(a), his motion does not fully comply with all of them. He has prepared the
necessary affidavit affirming that he is unable to pay court fees, he has provided a
statement of all of his assets, and he has indicated the nature of his appeal and stated
his belief that he is entitled to redress. Petitioner has not, however, attached a
certified copy of his trust fund account statement for the six months preceding the
appeal. He has failed to attach any documentation about his trust fund account. (See
Docs. 15 & 16).
Ordinarily, the Court would direct the Clerk to request a certified copy of
Petitioner’s prison trust fund account statement, and defer ruling on the Motion for
Leave to Proceed in forma pauperis until it received such a copy. Here, however, it is
prudent to consider first whether Petitioner’s appeal is taken in good faith. See 28
U.S.C. § 1915(a)(3).
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The Court finds that Petitioner’s appeal is not taken in good faith because he
seeks to argue the same sovereign citizen argument that the Court has now rejected
four times and for which no reasonable person could find merit. Petitioner argues
again that the government did not have jurisdiction over the land where he was
arrested pursuant to 40 U.S.C. § 3112 because the Governor of Missouri did not cede
jurisdiction. (Doc. 15 at 2). Petitioner also argues that because of this, the Western
District of Missouri was without jurisdiction to try and sentence him. Id. at 4.
The Court has rejected Petitioner’s § 3112 argument four times now because it
is meritless. Section 3112 establishes the procedure for the federal government to
acquire specifically identifiable land from states. In acquiring the identifiable land,
the federal government also acquires the residual powers, which usually belong to
the states, when the state cedes jurisdiction. United States v. Kahn, 304 F. Supp. 2d
1353, 1357-58 (M.D. Fla. 2004). Therefore, 40 U.S.C. § 3312 affects “only the manner
in which the federal government acquires some or all of the residual powers normally
exercised by the state with respect to a particular piece of land. It does not, as
[Petitioner contends], affect the federal government’s ability to exercise the
enumerated powers constitutionally delegated to it by each of the several states with
respect to any land anywhere within these states, that is to say the United States.”
Kahn, 304 F. Supp. 2d at 1358.
Congress’s power to enact federal criminal law comes from the Constitution.
Article I, Section 8, the “Necessary and Proper Clause,” gives Congress the power to
“make all laws which shall be necessary and proper for carrying into execution the
foregoing powers, and all other powers vested by this Constitution in the government
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of the United States . . . .” U.S. Const. art. I, § 8. This gave Congress the authority to
laws that create, define, and punishing crimes, irrespective of where they were
committed. Congress then created 18 U.S.C. § 3231, which gives the district courts
original jurisdiction over “all offenses against the laws of the United States.” United
States v. Owens, No. 1:08CR89, 2009 U.S. Dist. LEXIS 7945, at *12-13 (N.D. W.V.
Jan. 23, 2009) (“There is no basis for the claim that federal criminal jurisdiction is
limited to the District of Columbia and United States territorial possessions and
ceded territories.”); see also United States v. Jerdine, No. 1:08-CR-00481, 2009 U.S.
Dist. LEXIS 132021, at *18 (N.D. Oh. Feb. 18, 2009) (citation omitted) (“Moreover,
Article I, Section 8 of the United States Constitution grants Congress the power to
create, define, and punish crimes irrespective of where they are committed.”).
Congress has also passed 18 U.S.C. § 3041, which states that for “any offense against
the United States, the offender may . . . be arrested” and allows for various federal or
state officials to arrest the offender. These statutes show that Congress has used its
Constitutional power to create, define, and punish crimes. They also provide the basis
for Petitioner’s arrest, plea hearing, and sentencing. Petitioner’s arguments to the
otherwise are meritless.
Petitioner also argues that a 1947 United States Supreme Court case provides
precedent for his interpretation of § 3112. (Doc. 15 at 3). The Court disagrees and
finds the case distinguishable. In Adams v. United States, the Supreme Court was
asked to determine the narrow issue of whether there was jurisdiction for the trial of
three soldiers accused of raping a civilian woman on a military base. 319 U.S. 312,
312 (1943). However, because Petitioner was not convicted of a maritime crime nor
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did he commit his offense on a military base, Petitioner’s argument is meritless. See
Abril-Pérez v. United States, Nos. 14-1350 (JAF), 10-251-26, 2014 U.S. Dist. LEXIS
88159, *3-4 (D.P.R. June 25, 2014) (“This reliance is misplaced. Adams is about the
narrow issue of whether a rape that occurred at a government military camp could
be tried as a federal crime, although the government had not accepted jurisdiction
over the camp as was required by statute. Unlike Adams, Abril-Pérez’s case does not
involve military property or property over which the government was required to
formally accept jurisdiction.”); United States v. Genard, No. 07-136, 2007 U.S. Dist.
LEXIS 62635, at *2 n.1 (E.D. La. Aug. 16, 2007) (rejecting the application of Adams
to a criminal trial for failure to file income tax returns); Taylor v. United States, Nos.
1:09-cv-24; 1:04-cr-177, 2009 U.S. Dist. LEXIS 55334, at *7 (E.D. Tenn. June 29,
2009) (“Adams has no applicability to the instant case involving an indictment for a
federal offense which occurred in the State . . . .”); United States v. Whitlow, No. 4:14CR-3015, 2016 U.S. Dist. LEXIS 144054, at *3-4 (D. Neb. Oct. 18, 2016) (“But this
case does not deal with property over which the government was required to accept
jurisdiction, and the Court has original jurisdiction over all violations of federal law.
Adams is not applicable here.”).
It is clear that there was jurisdiction over Petitioner both when he was arrested
and while he was sentenced. Therefore, Petitioner’s argument must be rejected as
meritless. Furthermore, this argument has been rejected as meritless not just in this
Court, but in courts around the country. Kahn, 304 F. Supp. 2d at 1358 (explaining
that the “Government is not required to obtain a ‘notice of acceptance’ with respect to
the land on which the prohibited activity occurred for jurisdiction to inure . . . .”);
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United States v. Perkins, Nos. 1:05-CR-135 & 1:07-CV-679, at * 11-20, 2008 U.S. Dist.
LEXIS 125093 (N.D. Oh. July 24, 2008) (finding that any argument that there was
no jurisdiction over the land where a federal crime was committed or with the courts
because of 40 U.S.C. § 3112 is meritless); United States v. Hornback, Nos. 3:10-CR13-DCR-REW, 3:13-CV-7296-DCR-REW, 2014 U.S. Dist. LEXIS 83586, *24 (E.D. Ky.
May 6, 2014) (citing United States v. Sitton, 968 F.2d 947, 953 (9th Cir. 1992)) (“This
argument is patently meritless. Federal courts have exclusive jurisdiction over
offenses against the laws of the United States under 18 U.S.C. § 3231 and the
permission of the states is not a prerequisite to that jurisdiction.”); Thomas v. United
States, Nos. 8:13-CV-215-T-15Map, 8:07-CR-203-T-27MAP, 2013 U.S. Dist. LEXIS
130123, at *2 (M.D. Fla. Sept. 11, 2013) (finding a similar claim “completely frivolous”
and explaining that § 3112 has “nothing to do” with cases, like here, whose
jurisdiction rests on § 3231); Aquino v. United States, Nos. 12-CV-4964, 09-CR-555,
2013 U.S. Dist. LEXIS 64471, at *7 (S.D.N.Y. May 6, 2013) (rejecting as frivolous an
argument that New York and New Jersey were not subject to federal criminal
statutes because the government did not follow § 3112).
Therefore, no reasonable person could suppose that Petitioner’s habeas corpus
argument could have merit. Because a reasonable person could not suppose that the
appeal has some merit, the Court concludes that Petitioner’s appeal is not taken in
good faith. See Walker, 216 F.3d at 632; 28 U.S.C. § 1915(a)(3).
CONCLUSION
For the foregoing reasons, Petitioner’s Motion for Leave to Appeal In Forma
Pauperis (Doc. 15) is DENIED. Pursuant to Federal Rule of Appellate Procedure
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24(a)(4) the Clerk is ordered to immediately notify the parties and the Seventh
Circuit Court of Appeals that this Court has denied Petitioner’s motion and has
certified that the appeal is not taken in good faith because it is without merit.
Entered this _20th__ day of December, 2016.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
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