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Menu ******** Federal Law on Substances (including Marijuana) Attorney Allison Margolin's Motion on Jurisdiction Menu |
SAMPLE OF MOTION TO DISMISS FOR LACK OF JURISDICTION FOR U.S. DISTRICT COURT NOTE: See Instructions following the Motion.
Click here for Motion and Instructions for easy emailing as pdf
Joe Prisoner, #111222 Name County or Federal jail 111 Main St. Jailtown, CA 99999 IN
THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
MOTION TO DISMISS FOR LACK OF JURISDICTIONDefendant Joe Prisoner_______________________ hereby moves this Court to dismiss charges for lack of jurisdiction. THE PRECEDENT UPON WHICH THE FEDERAL GOVERNMENT’S ABILITY TO GOVERN
INTERSTATE COMMERCE, WICKARD V. FILBURN, 317 U.S. 111, IS PREMISED UPON THE FACT
THAT THE PLAINTIFF IN THAT CASE REGISTERED IN A FEDERAL PROGRAM; BECAUSE
DEFENDANT NEVER TOOK ADVANTAGE AS A REGISTRANT OR RECIPIENT OF BENEFITS OF A
FEDERAL PROGRAM, THE WICKARD BASIS OF JURISDICTION IS INAPPLICABLE HERE. Wickard
v. Filburn,
317 U.S. 111 (1942), is considered to be the controlling precedent upon which
Congress has relied to expand the definition of interstate commerce. The common
notion is that nearly any aspect of commerce can be regulated if a piece of
wheat could be governed by the federal government. In fact, in that case, the
federal government had developed a subsidy system to help farmers in a
particular field, that of wheat farming. One farmer, the plaintiff in the Wickard,
317 U.S. 111, filed a complaint asking to enjoin enforcement of the Agricultural
Adjustment Act of 1938. The Act set up quotas for farmers and imposed penalties
for farmers who while taking advantage of the federal subsidies dolled out by
the agency, wanted to be immunized from the penalties associated from not
following the conditions required to take advantage of these benefits. Defendant never registered nor received benefits from
any federal agency regulating controlled substances.
Therefore, the federal government lacks the jurisdictional basis asserted
in Wickard, 317 U.S. 111. As the Wickard court wrote,
acknowledging the role the plaintiff had in bringing about federal jurisdiction
over his activity: We
can hardly find a denial of due process in these circumstances, particularly
since it is even doubtful that appellee’s burdens under the program outweigh
his benefits. It is hardly lack of due process for the Government to regulate
that which it subsidizes. 317 U.S.
111 at p. 130. The Supreme Court clearly states that unregulated
“others” exist outside the jurisdiction of the administrative agency. It is of the essence of regulation
that it lays a restraining hand on the self-interest of the regulated and
that advantages from the regulation commonly fall to others.
Ibid. at p. 129
Defendant is one of the “others”, as defendant has never
registered for benefit or received benefit from any federal agency
regulating controlled substances.
THEREFORE, defendant asks the court to dismiss all charges against
defendant and return all property seized or attached in this case. Respectfully
submitted, __
Joe
Prisoner
___________,
____November
7, 2006
Instructions
for Prisoners filing the Motion to Dismiss for Lack of Jurisdiction in
the Federal District Court We
are freely offering this information on jurisdiction gleaned from our research.
We are not attorneys and are not offering this as legal advice or legal counsel.
The Motion is based on the motion filed by Attorney, Allison Margolin.
First, ask your attorney to file the motion. You may have to do it
yourself as pro se, if your attorney refuses to do it. If you have
signed a plea agreement, use the 3-page motion, which has the first argument
dealing with the plea, followed by the simple motion to dismiss for lack of
jurisdiction. If no plea agreement has been signed, use the simpler 2-page
motion that only addresses the Motion to dismiss for lack of jurisdiction.
You
fill in the Motion brief with type or pen (see condensed sample motion filled in
with italics) -
replace the italics with your own information (there are about 10
entries) -
Don’t forget to enter your case number followed by initials of your judge -
Notice it for hearing on page 1 with date and time.
Your judge’s Motion and
Hearing day, is the day and time you have generally gone for hearing.
Add at least 2 weeks (14 days) to this weeks Motion and Hearing Day. Send
Clerk: Most
important to at least
send the Clerk one original motion if you cannot make copies. -
if you can make copies: -
1 Original and 1 copy of completed and signed Motions -
Clerk cover note / Dear Clerk, please return file-stamped copy to me in SASE.
(Include folded self-addressed stamped envelope – 1 first class stamp
will do.) -
Proof of Service original (if you have copy of motion available to send to AUSA) You
fill in Proof of Service template or make your own: (see sample below filled in
with italics) -
replace the italics with your own information (there are about 8 entries) If
you have enough copies of motions: Send
the Assistant US Attorney (AUSA) prosecuting your case: -
Copy of filled-in and signed Motion Keep
for yourself: -
1 filled out Motion copy for your record.
-
Proof of
Service copy for your record. (if
you have enough copies of motions)
PROOF
OF SERVICE I,
__Joe
Prisoner
________________________________________, hereby certify that I properly
placed Joe
Prisoner’s_______________________
MOTION TO DISMISS
FOR LACK OF JURISDICTION, in
an envelope, sealed the envelope and mailed it with First Class postage at
___Name
of County or Federal Jail _______________________________,
in
__Jailtown,
California 99999 __________ on
_November
7, 2006_____. The letter was addressed as follows: _Your Prosecuting Attorney’s Name_____________, Assistant U. S. Attorney A.U.S.A. Office Address _600
Main Street___ Metropolis, California
99999________________________ Server’s Address: Joe
Prisoner, #111222 Some
County or Federal jail 111
Main St. Jailtown, CA 99999 _ Joe Prisoner ____________________
November
7, 2006__ SIGNATURE
DATE
We want to hear from
you, contact us (for mailed response include SASE)
email: commonsenselaw @ yahoo.com Check out www.commonsenselaw.com
for updates on this issue.
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Federal Law on Substances (including Marijuana) Attorney Allison Margolin's Motion on Jurisdiction Motions for Pro Se Defendants Due Process Court Filings California Drug Law Immigration Federal Gun Law Reward re. Substances Reward re. Marijuana Urgent Action Events Download Articles All information on the site is provided for educational purposes only. Common Sense Law does not provide legal advice. The authors are not attorneys and not officers of a court of law. If you are seeking legal counsel, contact an attorney and/or do your own due diligent research. Send e mail to: commonsenselaw @ yahoo.com (remove spaces before copying to email program) with
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