1

14-2988

UNITED STATES COURTS OF APPEALS

FOR THE SECOND CIRCUIT

-------------------------------------------------

United States of America, Appellee

v. John Lee, Christian T. Viertel, Defendants,

Fritz G. Blumenberg, Defendant – Appellant.

------------------------------------------------- On Appeal from an evasive order by the U.S. District Court for the

Southern District of New York – 01-cr-00571 (JGK)

------------------------------------------------- Appellant’s OPPOSITON to “Affirmation” in support of Appellee’s

“MOTION for Summary Affirmance”, and CROSS-MOTION for

Summary Reversal, Vacatur of “Indictments/Convictions”, or, to not

expand Appellee’s briefing window farther than 30 days

------------------------------

Fritz G. Blumenberg, Appellant, Pro Se Am Hempberg 2, 21224 Rosengarten – GERMANY

�� +49-4108-590-535 [link ]

2

Introduction There is a famous proverb that “those who forget the past are condemned to repeat

it”. This saying has great significance in a case like this which involves a prejudicial

overdose, official fraudulence, and chronic docket doctoring that resulted in massive

discrimination against two aliens who were unconstitutionally prejudiced, deprived of

liberty, branded felons and deported for no reason.

These official acts must be seen in light of unfortunate history of discrimination

against non-citizens and “hyphenated”-Americans (Pres. Roosevelt).

“There is such a thing as due process of law!” Associate Justice A. Scalia

reminded the Federal Judiciary on January 21, 2014. Let’s see Appellee’s BRIEF.

Summary - Background

A first inspection of the “AFFIRMATION” [sic] reveals affirmant’s blaring [this

time] not untruthful avouchment on ¶ 2: “3. Indictment S1 01 cr. 571 (JGK) was

filed on February 14, 2002, in five counts.” [Bolding, underline added].

An overt crack at circumnavigating candor and the true inaugural procedural [bill]

history, which, to date, was willfully, knowingly and consistently misrepresented at each

level and to each Circuit Panel in each of multiple appellate proceedings by Appellant

and by his remaining Co-Defendant Viertel.

The government’s “en-passant” generic sounding, semi-official deceit was foul

and perpetual – in a variety of text-versions - as follows: “The Original Indictment

against Blumenberg, Lee and Viertel was filed on June 14, 2001”.

Absolutely, positively falsified.

3

The sole true FILING of a [signed] INDICTMENT bill occurred June 19, 2001, and was

filed in absence of a “SEAL”. On that day, unsurprisingly, case 01 cr. 571 (JGK) was in

fact “OPEN”. “JUDGE KOELTL” assigned, vel non,1 by a rubberstamp.

The novel “AFFIRMATION” language (supra) is an approach by not echoing

under oath those “calendaring” lies told a few dozen times before it. Proctrix Cohen’s

strategy thus evolved into affirmative damage-control. Proctrix tries to ditch the 600

pound gorilla at bar.

It took a 5 day ruse to maliciously inculpate for expired innocent acts

The novel practice won’t expunge old misrepresentations, but it very well co-

ministers as intrinsic CONFIRMATION of the solid “date-line” position both alien

defendants sustain in that USA’s pre-inaugural “June 14, 2001” delusion was just that, an

artifice. Facts are that Grand Jurors had not voluntarily concurred to play fast and loose

with prosecutors’ supposition neither on June 14, 2001 nor during 4 ensuing days.

Through a blatant backdate-lie, the United States recklessly heaped disgrace upon

Grand Jurors, a clear demonstration of arrogance and disrespect for what is hyped as its

own citizens’ “oversight powers”. Henceforth, Grand Jurors must take notice that the

Federal Government must face Grand Juries they get, not those they wish to get!

This pro se Defendant-Appellant presented, however inartfully, these issues to the

District and the District went into instant denial straying beyond the edges of strict rules,

including Haines v. Kerner2’s playbook judges must follow once a genuine verifiable or

1 In fact, learned clerks pointed out that this Judge was “shopped” by half (a CA2 issue in U.S.

v. Newman), and freely jumped NYSD’s criminal “wheel – cloaked, clutching his gavel”.

2 Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 595, 30 L.Ed.2d 652 (1972) (per curiam)

(allegations of pro se complaint are held to less stringent standard than formal pleading

drafted by lawyers, when court considers a motion to dismiss).

4

jurisdictional claim appears to have been made, even “out of” procedure, out of order or

time, or recuse once a judge has weighty personal scienter for participating in the

derailment of the Constitution. This Appeal followed.

Highest professional standards are missing

The alteration in procedural history selections for proctrix’ “AFFIRMATION”

demonstrate aggressiveness, a culture of deception to stay a “winner” at all costs, and

reveals how much [undeserved] deference courts ensign for determinations that should be

more blindly analyzed and adjudicated. The DOJ requires “federal prosecutors to

conduct themselves in a manner consistent with the highest professional standards when

they represent the U.S.”: in 01 cr.571 they failed to uphold these standards.

USA after USA pushed the envelope, most likely enabled by Appellant’s non-

combative defender having Appellant cooperate and plead guilty [A.713, more generic

than legally firm] despite what - at least on hindsight - seems to have been serious

questions of legal sufficiency, jurisdictional grounds and over “intentionally fraudulent

professional misconduct”.

Now that “reservoir of respect” hopefully shriveled to under nano-size. An

extraneous Magistrate’s “un-sealing of a hoax” [Br. 16] was less sorcery and more

villainous, till his own “un-seal & lies” collapsed last year [about the time NYSD’s

“Melanie L Lopez”-ink-swindle popped].

Now time has arrived to capitulate, that even an unelected United States’ actor

cannot make proof un-microfilmed, stamps un-inked, “FUGITIVES” un-branded, or,

3 “Br.” Refers to Appellant’s BRIEF on APPEAL; and “A.” refers to Appellant’s Appendix

5

twist phantom “Melanie L Lopez” into “Deputy Real McCoy” sworn to sign Arrest

warrants void of a judicial Order.

Appellant’s Affidavit of Fact follows this OPPOSITION.

Argument

This is a timely4 submitted OPPOSITION5 to a frivolous 8-page

“AFFIRMATION ” in lack of [DOJ mandated] necessity of authorization by the United

States Attorney for the SDNY [P. S. Bharara] for any legal “Motion”.

Appellant’s opposition rests upon three prongs, the first prong over procedural

objections, untimeliness et al; the second prong objecting to “merit” [or rather lack of

merit] the government posits and which must be deemed yet another quintessential

“ foul”6 attempt in furtherance of a continuous cover-up of what official actors planned

and operated as an Enterprise of backdating and docket doctoring; the tertial prong being

a Cross-Motion [upon Appellee’s straight failure to timely file its calendared BRIEF by

04/15/2015, in lieu of a written local rule that would grant a self-reset of a BRIEFING

deadline grounded on [too slick of a] motion practice, and cross-moving for SUMMARY

REVERSAL of ORDER and CONVICTION, EXCULPATION and VACATUR

INDICTMENT[s]” for good cause, or, in case the Panel rules to expand Appellee’s

4 On 04/17/2015 CA2-Case Manager A. Greenidge advised Appellant by email that an

OPPOSITION would be due for filing by 04/23/2015

5 (B) Request for affirmative relief. A response may include a motion for affirmative relief. The

time to respond to the new motion, and to reply to that response, are governed by Rule

27(a)(3)(A) and (a)(4). The title of the response must alert the court to the request for relief.

6 Anno 1935, when Justice Sutherland, in Berger v. U.S., held that prosecutors commit foul

strikes and are not licensed to lie nor promote lies of others

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expired BRIEF deadline ex-post-facto, any such gifted time be less than 30 extra days, in

the interest of speedy justice vs. more wiggle room.

1. The First Prong.

a) Courts are – prudently - loath to entertain late-filed motions for summary

disposition that abuse the judicial process or waste the court’s resources.

For example, in United States v. Fortner [455 F.3d at 752,53,54], the 7th

Circuit warned litigants against using motions for summary disposition

“We now explain why the government's litigation strategy—filing a

motion for summary affirmance days before its merits brief was due—is

problematic.7 "The strategy is this: instead of filing a brief on the due

date, the appellee files something else, such as a motion to dismiss. The

goal and often the effect is to obtain a self-help extension of time even

though the court would be unlikely to grant an extension if one were

requested openly."United States v. Lloyd, 398 F.3d 978, 980 (CA7

2005); see also Ramos v. Ashcroft, 371 F.3d 948, 949-50 (CA7 2004). As

we held in Lloyd and Ramos, a last-minute motion, if necessary, should

be filed along with a timely brief, not in place of it.”8

b) With breathtaking audacity, the government sought to arrogate to itself

the right to terminate or to expand an uncomfortable process. Affirmant

Cohen’s pseudo “DIY-Motion” was not simply untimely but contravenes

7 [The practice is widely used; anecdotally, this is the second such motion this motions panel has addressed (and denied) in a single week. (pulled from original for clarity)]

8 The CA7 subsequently clarified its position, limiting Fortner to "last-minute" summary

disposition motions, and not those that were filed "well before the appellant's brief was

due." Dupuy v. McEwen, 495 F.3d 807, 808 (CA7 2007).

7

Circuit law; see U.S. v. Davis, 598 F.3d 10, 13, 14 n. 3(CA2 2010). The

“AFFIRMATION” was jotted down less than 8 days before the due date

of USA’s merits BRIEF [DOC#409, now deemed expired upon no-good

cause]. The 11th-hour maneuver is unlikely to streamline this appeal but

rather to squander Circuit resources. The “Motion” “AFFIRMATION”

was an artifice to short-“circuit” appellate process, was not taken in good

faith and must fail if not because “" lady doth protest too much,

methinks"10.

c) Generally, panels must be satisfied to have thoroughly grasped all pro

se issues on Appeal arisen, inter alia, from the originating District

Motion and weigh [on an unbiased scale, blindly] whether merits existed

for its speedy denial below or suspicion of a second agenda appear

reasonable, like hinting at furtherance of cover up from felony backdate

violations to bogus “non-seals” of an pre-inaugural draft-bill.

d) The law was colored with 2 superseders in pretense of “relating back”

to an originally valid conspiracy charge. Unlawful extra-conviction on a

bogus – expired - §371 charge rigged to enhance, to over-incarcerate and

judicially counterfeit “preponderance” for expired “pseudo conduct”

[despite micro-economic insufficiency that Burda Media – as a net-

winner, not victim, of Appellant’s executive decisions – could not

demonstrate and had no intent to falsely verify to the Court’s Probation

9 40 SO-ORDERED SCHEDULING NOTIFICATION, setting Appellee USA

United States of America Brief due date as 04/15/2015,

FILED.[1421728] [14-2988] [Entered: 01/22/2015 04:07 PM]

10 William Shakespeare 1602, Hamlet

8

PSR authors]. In lieu of that verifiable, bona-fide “victim declaration”

[there is none] the District sought reliance upon an extrinsic pseudo

RICO proceeding [97-7167 RWS now CA2 14-2815]. All that maybe

PAR for a District Court, but in a fair supervisory REVIEW and for the

public interest, it must dissolve.

e) Appellant briefed timely by 01/14/2015 and, inter alia, submitted

questions of LAW, of FACT and of FIRST IMPRESSION, that require

full Appellee briefing, and an opportunity for Appellant’s REPLY. See,

Cascade Broad. Group, Ltd. v. FCC, 822 F.2d 1172, 1174 (D.C. Cir.

1987) (summary disposition is appropriate “only where the moving party

has carried the heavy burden of demonstrating that the record and the

motion papers comprise a basis adequate to allow the fullest

consideration necessary to a just determination”).

f) It has been established that a frivolous motion for summary

disposition, or one that is brought merely to cause delay or for another

improper purpose, will be “looked upon with great disfavor” and will do

nothing to serve the interests of justice, which should be of major

concern for the like-named “Justice” department moving on behalf of the

United States of America. [Fortner, supra at 754 denying the

government’s motion for summary affirmance and chastising the

government for “wast[ing] the resources of [the] court”.]

g) Contrary to Appellee’s “AFFIRMATION”, Appellant’s instant APPEAL

is certainly not abandoned or frivolous, and this Court should not

deviate from its ordinary procedures for allowing full merits briefing.

9

U.S. v. Davis, 598 F.3d 10, 13, 14 n.3 (CA2 2010) is on target in stating

"[T] he unique importance of criminal appeals makes the decision to

characterize one as frivolous particularly perilous," requiring "extreme

care" before "short-circuit[ing]" the appellate process.

h) Appellant submits, that the government failed on unclean hands and

must face consequences for its misconduct while its own affirmant is bar

of standing to “move” this Court in such manner.

2. The Second Prong.

A suitable, duly authorized USANYS MOTION for “Summary affirmance”

was not filed; DOC#50 [below] simply labels an 8-page “AFFIRMATION”

authored by a known revisionist [if not an ethically11 challenged] AUSA in

“support” of an [AWOL] motion we can’t find. Snail-mail to Germany is not

considered HONEST SERVICE, and has not yet arrived.

From the entry12 below, it appears that a real MOTION was filed, but is not

available online. Hyperlink 50 is simply an “AFFIRMATION” in which the

government posits that Appellant lacks jurisdiction to reach out to the Second

Circuit because “the bulk of defendant-appellant Fritz Blumenberg’s claims“ is

11 It is unquestionable, however, that constitutional protections in the criminal context serve a

fundamentally different purpose than disciplinary proceedings in the ethical context. See, e.g.,

US v. Agurs, 427 U.S. 97, 110 (1976) (noting a distinction between the character of the evidence

and the character of the prosecutor).

12 04/08/2015 50 MOTION, for summary affirmance, for full 91-day period to prepare

and file brief on the merits if motion is denied, on behalf of Appellee

USA United States of America, FILED. Service date 04/08/2015 by 3rd

party, CM/ECF. [1480461] [14-2988]--[Edited 04/09/2015 by AG]

[Entered: 04/08/2015 05:09 PM]

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arrogantly classified by the government as incongruent to unrelated issues denied

by the District Order dated 08/06/2015.

However, such incongruence between the District’s “instant DENIAL” and

Appellant’s issues raised below on 08/05/2015 in his pro-se-MOTION does not

exist13, and does not impugn appellate jurisdiction.

The government’s effort to rig confusion is superficial since Appellant

also filed an Appendix; the original District Motion is on A.32. Appeal was taken

from an “unsigned” ORDER dated August 6, 2014 (A.¶ 29, 30] and shuns many

duly presented and weighty and jurisdictional claims, also for the release of

pertinent [June 2001] Grand Jury records to fold open hidden cards14 covered by

the Confrontation clause.

A party has permission to raise jurisdiction at any time15, see (Br.¶11, ii))

“Where jurisdiction is challenged it must be proved.” Hagan vs. Lavine, 415 U.S.

528 (1974). If a District defaults thus “moon-walks” out with willful blindness to

steer clear of jurisdictional hurdles [presumed a protective move to hold onto his

own reputation and shield his accomplices at branch II and III] issues are not

13 Except for the IRS demand below: However, IRS Frankfurt is now in compliance with

Appellant’s “SEIZE and DESIST” demand dated 04/01/2012 after the issue was raised August

2014 below, and collection issues are currently moot, also since IRS failed to substantiate its

“calculations and claim” vs. BURDA’s facts and my net “income” truthfully declared for 95/96.

14 “The public’s business ought to be public” (Chief Judge DCCA) 15

US V. COTTON (01-687) 535 U.S. 625 (2002): “Because subject-matter jurisdiction involves

a court’s power to hear a case, it can never be forfeited or waived. Thus, defects require

correction regardless of whether the error was raised in district court”. See also: “Without

jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the

law, and when it ceases to exist, the only function remaining to the court is that of announcing

the fact and dismissing the cause.” (Exparte McCardle, 7 Wall.506,514 (1869)).

11

discharged, nor are they barred. The AUSA “AFFIRMATION” misses all points

and fails. To wit:

i.) Title of and NOA itself establish “JURISISDICTION under 28

U.S.C. §1291” [Br. ¶ 6, A. ¶ 31] indicating principal causes on

Appeal, namely the evidentiary deceptiveness of a District’s

[Final] Denial Order appealed from (the date, whether 6th or 7th

August is of no import, the Order is in A.29-30). Thus, not only,

but DECEPTIVE ORDERS in a criminal case are, while subject to

reversal, often abuse of judicial discretion and thus “a priori”

appealable to a Circuit under FRAP, in particular over a question

if discretion can even exist without jurisdiction. The gist of this

Appeal is well grounded upon my original MOTION (A.¶ 32)

denied in the District, but a District’s “denial dicta” is of no

consequence to appeal-ability, even if dicta missed or

unconscionable avoided targeted issues.

ii.) Appellant maintains that the District had no §371 jurisdiction for

the only two overt acts it abusively convicted on twice, first the

Appellant and then co-defendant Viertel, Lee was exculpated.

Which are these genuine jurisdictional issues the District strives to avoid?

iii.) “Bagley” materiality attributable to unlawful backdating of an –

pseudo-sealed - INDICTMENT can no longer be in dispute, but,

to the contrary, weighs in as I.E.D. which would have, if duly

disclosed at once or prior to conviction would have resulted in full

dismissal of Count One, the Conspiracy charge and would/should

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have unhinged the INDICTMENTs altogether, to fairly match

Lee’s nolle prosequi.[A.52-53]

iv.) Government proctors cannot dispute that section §3282 governs

all counts. With respect to “catch-all” conspiracy offenses, the

government must “allege and proof at least one overt act that

occurred” within the statute of limitations, see United States

v.Milstein, 401 F.3d 53, 72 (CA2 2005) (citing U.S. v. Ben Zvi,

242 F.3d 89, 97 (CA2 2001) “statute of limitations depends on

timely overt act by either defendant or a co-conspirator”. [Logic

might rarely find its way into cases, however, logically, culturally

and historically, [resident] alien Nationals of the EU16 cannot be

said to develop “propinquity mens rea to willfully commit an

offense against the United States’ domestic mail delivery or wire

fraud regimes” nor, under any conceivable scenario, would they

be physically positioned to “join” another alien overseas (Viertel

was in France) into common agreement to hurt domestic mail laws

with air-freight export activities. In the meantime it resolved that

all BURDA accounting transport to Germany was embargoed at

NY nullifying any version of a mail count.

16 Appellant was CEO of a profitable MEDIA CONTENT EXPORT business with 25+ EU clients

but no construable nexus to U.S. interstate domestic mail functionalities. This “domestic”

nexus was bogus and untenable for Appellant and safely unknown to Lee and Viertel and, as

the Indictments’ “mail” charge (A.65) demonstrates was deliberately falsified by USA Comey in

that air-freight shipments to Germany are never a domestic offense, and, as Burda certified, all

bookkeeper mail for June 1996 was embargoed to remain in the New York office for audit.

Jurors were not appraised that a gypsy livery van (APEX) has no status as an “Interstate

Carrier” to intelligently weigh the probability of the fourth “criminal element” in §1341. No

corporate (APEX) proof could be presented to the GJ, as Professor Henning stated in “The

Changing Nature of the Mail Fraud Statute, 36 B.C.L. Rev. 435, 473-77(1995), see USAM/CRM

952, requiring proof of a gypsy messenger van’s eligibility for interstate carrier status.

13

v.) Fortunately now for Appellant (as for Mr. Viertel) both overt acts

charged for 17 June and 18 June 1996 were not only bogus and

innocent, they expired by the time the INDICTMENT was filed on

06/19/2001 – see PACER headliner. Unfortunately for both that it

took 13 years to cut through malfeasance at the Courthouse.

vi.) The 06/19/2001 #2 Docket Entry (A.34) text is strikingly bogus:

“Sealed Defendant 1, Sealed Defendant 2, Sealed Defendant 3,

Unsealing Indictment (Signed by Magistrate Judge Henry B.

Pitman); Copies mailed (jm) (Entered 06/20/2001)

vii.) Defendant-Appellant did not enter into a plea-agreement or waiver

[but, as turned out, was coerced into unknowingly, unintelligently

“eat” the (corrupted S2) INDICTMENT, rendered defective

because counts must relate back to a valid timely count and not

one more with a 5-days backdate fiction. A June 14, 2001

INDICTMENT does not exists, and a June 19, 2001 one that does

exit, once cleansed off its Count One irregularities, would by

without “preponderance powers” to overreach and over-

incarcerate on a time-barred Conspiracy charge.

viii.) Facts and argument presented to the District in the substantive

Motion under Appeal dispute much of what the government

falsely posited as DUE PROCESS.

3. The Tertial Prong.

Appellant cross-moves this Court for SUMMARY REVERSAL concurrent to

VACATUR of CONVICTIONS and of all “four” INDICTMENT[s], the ugly fake draft

and three unsealed corrupted ones that followed.

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Summary Reversal “may also be appropriate in extremely rare cases where

there has been a clear denial of constitutional rights without a reasoned decision from

the court below.” 9th Cir. R. 3-6 (Summary reversal may be granted where “an

intervening court decision or recent legislation requires reversal or vacation of the

judgment or order appealed from or a remand for additional proceedings.”). Q.E.D.

If Domina Iustizia were truly blind, than every trespassing prosecutor must be in

constant fear of getting snagged and shackled or, Justice cannot be done. Anno Domini

MXMXXXV when Judge Sutherland, in Berger v. US, held that prosecutors are neither

licensed to lie nor to cause proxies to swindle on their behalves (see Magistrate HBP on

DOC#2 for a glaring example of such swindle) because such conduct is prohibited,

considered “foul strikes” and, as Appellant suggests, piled up huge societal debt the

United States must take responsibility and repay those who were violated by their actors

malicious conduct.

It is reasonable that GJ minutes shall be ordered opened for transparency (also in

view of another DOJ “Injustice” scandal this week) because letting DOJ/FBI getting

away with grand jury grandstanding and misconduct prejudicial to their targets results in

abuse of judicial process.

Now, the government affirmant request an alternative [¶ 8, FN 4]: “ In the event

that the motion is denied, the Government respectfully requests that it be afforded a full

91-day period to prepare and file its brief on the merits”.

That is a non-sequitur; the government fails to explain why they would need to

double dip and research for another 91 days, if their appellate jurisdiction argument could

have been timely made in a merits brief. FRAP Local Rule 27.1 stands in the way:

(f) Motion to Extend the Time to File a Brief.

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(1) Extraordinary Circumstance Required. Absent an extraordinary circumstance, such as serious personal illness or death in counsel's immediate family, the court will not grant a motion to extend the time to file a brief. A deadline for a brief remains in effect unless the court orders otherwise.

Appellant profoundly objects that 90 squandered days could be rewarded with 91

more days and submits that the government be held accountable for its conduct and

disarray, and be granted a prolongment of no more than 30 days maximum, on the

condition that candor is forthcoming.

Conclusion

Those who swore the constitutional oath in the Courthouse fabricated evidence they wish to have, tampered with jurors and dockets to ensnare aliens over foreign conduct without a nexus to an identifiable New York victim and without measurable intent to violate United States domestic laws or inflict pain upon the United States. The RULE OF LAW they abated shriveled into an empty slide in America’s Absolute Power Point presentation insulting the public.

The conclusion is that the government Motion was raised on fictitious and bad faith grounds and must fail. No party, including the United States should be allowed to borrow more undeserved time, thus, their proposal should be denied. Preet Bharara recently noted that: “It is unfair: it is offensive; it is unlawful; and it puts a black mark on the entire enterprise.” Let’s coequally apply his words to this matter on Appeal.

Respectfully submitted on this 22 April 2015, Hamburg, Germany by email

Appellant, Cross-Movant, Defendant Fritz G Blumenberg /s/

Affidavit ¶ 16 follows, Service Certificate ¶ 22 Exhibit I ¶ 23 adjoined.

16

UNITED STATES COURTS OF APPEALS FOR THE SECOND CIRCUIT ---------------------------------------------------------

United States of America, Appellee

v. Appellant’s Affidavit in Support of Opposition to

John Lee, Christian T. Viertel, Defendants, “Affirmation” for “ Summary Fritz G. Blumenberg, Defendant – Appellant Affirmance”, or for 91 extra days of underserved time ---------------------------------------------------------

I, Fritz G. Blumenberg swear this Affidavit under Title 28 U.S.C. §1746 under penalty of perjury “without” the United States in Hamburg, Germany and sayeth:

i) Up until about 09:30 A.M. on 06/19/2001, AUSAs and their Supervisors

[reporting to USA White], struggled to deliver “CPR” to what they labeled as

“key conspiratorial overt acts on June 17 &18 1996”. These two pseudo-acts

were fictional, illogically and untenable but somehow could be deemed

probable. These two rapidly expiring pseudo-acts17 were bread & butter for the

government’s illicit prosecution, and required “tolling” at any price, no matter

the Constitutions Due Process Clause.

ii) The tolling could not be stopped. The “acts” of 17/18th June 1996 expired.

iii) A fiction over “timely” Grand Juror consent was created by USA.

iv) Contrary to myriad false government representations, consciously bogus

assertions, fake “FUGITIVE” labeling, tolling did not stop until the

“INDICTMENT” was filed on 06/19/2001.

17 In 03-1364 USA Kelley, AUSAs Cohen and Neiman put it as a clear misrepresentation to

Second Circuit, see at this link http://bit.ly/1yR0FZl

17

v) The United States resorted to bad faith “CPR” delivery on 06/14/2001 as a

result of Grand Jurors not rushing to conclusions – on dicey probability and

because AUSA Mark Harris pushed his FBI witness-1 into a lie about a time

line of what became GX 501. Juror’s instinctive reluctance to readily consent –

Foreman Rehm is said to not recalling an advisory over “two looming acts

expiry” during a debriefing – to a speedy conclusion just to avoid expiry of 5

year old “overt” pseudo-acts18 that the government spun for the jurors.

(“Presider K” steadfastly refused for 14 years to release June 2001 GJ

records, another point raised below and on instant Appeal for judicial bias an

abuse)

vi) The government’s “CPR” procedures also featured an interstate “back-up-

scenario” for 06/15/2001, which, inter alia mensis rea, consisted of unlawfully

branding the 3 targets as “FUGITIVE [s]” (A. ¶ 49, 50, see Cross-Motion

Exhibit I ¶ 4,5 intra, for explanation), and interstate FBI transmission of three

fake arrest warrants plus an unsigned, un-returned, unfiled, unsealed

“INDICTMENT” draft, sent as bogus proof to several FBI residencies that day.

Arrogance has no limits.

vii) The government continues to pretend that the circumstances surrounding

Appellant’s false INDICTMENT backdate were legit. They were not. They

were Grandstanding, malicious dishonesty, lack of candor and not an act “in

the public interest”. Prosecutor after prosecutor gambled and gambled with

loaded dice, until their dice now melted.

viii) The USA misrepresented “factoids” as if a real “INDICTMENT” had been

“returned by Grand Jury” in the SDNY “on 06/14/2001”. In furtherance of their

18 Both fabricated acts (17/18th June 1996) were debunked as pseudo and untenable (A.¶ 41)

18

official – perchance un-American - ruse, three drafts “A/Warrants” were

counterfeit by AUSA Mark Harris, each contaminated with ink from a bogus

signature stamp19 (A. ¶ 42, FN7) [prosecutors had purloined earlier from Chief

Clerk J. Parkison20]. This issue is on instant Appeal under the Constitutions

Confrontation clause providing that a requested “Warrant” must be held for

post-arrest inspection and verification and may not be concealed by an

impartial District Judge who should – according to ethic rules – not have his

own dog in the fight. [Co-def’s Viertel’s fake A/W was recovered from FLSD]

ix) On 06/19/2001 the USA galvanized Judge Pitman to forge their alibi [DOC#2]

x) June 19, 2001 was a straightforward inauguration day of o1 cr. 571.

xi) Furthermore, a legitimate Magistrate “mj” Case was not opened in the SDNY

against Affiant or Lee, Viertel. Case 01-cr-571 was OPENED on June 19,

2001, evidenced by PACER’s uncorrupted Docket Record on undisputable

INDEX entry, facts the government can no longer controvert. Nota bene, that

the government thus far shunned to furnish a shred of stressable documentary

proof from the District’s or Magistrate’s certifiable Calendar, no tape nor

transcription, that they had entered, GJ-Foreman Rehm in tow, an OPEN

COURT room door on 06/14/2001, and fortuitously applied for FILING and

were either granted or not a SEAL in lieu of a duly “SIGNED” indictment

[Foreman’s & USA White’s ], because all they possessed up until 06/19/2001

19 “Melanie L. Lopez” was a phantom, a fiction not deputized to stamp “Arrest Warrants” on

June 15, 2001, see A. 42 FN7 for ink specimen

20 Who, upon information and belief, collected illusory signatures stamps of fictive clerk’s

as novelties for practical jokes.

19

was a blank draft proposal, a copy they had faxed around in vain and bad faith

in lieu of a “real” one. In fact, Appellant refers the Court to Exhibit 1 [intra21].

xii) On 06/19/2001 the firstever CASE v. Blumenberg [Affiant] was

inaugurated, “opened and filed” for its firstever time22 (A.¶ 40) rendering

prosecutorial struggles to re-design “tolling” for not yet time-barred §371

jurisdiction, null and void, and, yes, ultra vires at absolutum.

xiii) On 06/19/2001 the government set up for backwards bogus docket entries

(A.¶ 34) after the USAO elicited certified, albeit patently false judicial grade

testimony (Br.¶ 16” see DOC#2”) in which their “robed witness” prevaricated

about a 5-day earlier – albeit fictitious- “FILE & SEAL” [A.¶34) he had

“witnessed” somehow, despite his absence from the Courthouse. (Affiant’s

Defender Phil Weinstein was ineffective in failing to review of DOC#2’s

significance for my defense. Lee, instead, hired exquisite sharp-shooting

Esquires, Appellant and Viertel were handled ineffectively by what might as

well have been double agents. Weinstein to date refuses to whistle-blow over

this prima facie, more-than-leery judicial document accessible to him as

defender (but not scanned on Pacer), despite a heavily tortured false PACER

entry #2, SDNY clerk (jm) mis-phrased for what he should have known to be

highly dubious “goodfellas”, A.34 screenshot )

xiv) Affiant did not have a copy of DOC#2 until spring of 2014

xv) John Lee (3) was more effectively lawyered-up by [akingump’s] Richard

Zabel and obtained exculpatory nolle on the heels of his open threat to seek

21 In fact, Appellant refers the Panel to an email Exhibit 1 (with permission of author Viertel), in

which Viertel points out and underlines several issues raised.

22 Albeit – purposefully designed to not upset their prior ruse - not in OPEN COURT but by

USA staffer deposit through SDNY’s window to circumnavigate a conflict in the fake record the

government built with sophistication and brazen abuse of judicial process and Constitution.

20

Grand Jury Records in re dubious prosecutorial conduct before it (A.¶ 52-53;

see Ex. I ¶ 3 screenshot from an akingump Benjamin/Zabel Motion).

xvi) Such Grand Juror records were the government’s Achilles’ heel.

xvii) Hitherto, government actors, who sought to keep at least two badly lawyered

aliens on their “crooked hook”, employed atrocious force, boundless deception

and vast misrepresentations to avoid their detection. They arrogantly violated

the United States Constitution, Napue v. Il. (360 U.S. 264), Brady v. Md. (373

U.S: 83) and met the “foulness-standard” of Berger (295 U.S. 78), ad

infinitum.

xviii) Limitless deceptions targeted every Circuit Panel in Appellant’s [and

Viertel’s] long history of prior cases in plain judicative disrespect, regrettably

resulting in re-affirmance over a blunt, undetected, overlooked falsity: “On June

14, 2001, Indictment 01 Cr. 571 was filed charging defendants Blumenberg, Lee

and Viertel with one count of conspiracy…” was the government’s routinized lie,

with disastrous results for both alien defendants, for their families, properties.

xix) The federal government’s gross disdain in 01cr.571 of a publicly “hailed and

hyped” Grand Jury System, a promotional ruse, as if, hypothetically, a Grand Jury

shields some targets from authoritarian overreach, is of mind-blowing dimension.

[but so was this week’s FBI Forensic scandal structured to deceive the bench]

xx) This case is also of “First Impression” and shall serve the Circuit as an

opportunity to issue a stern democracy lesson by warning Jurors to never rush to

conclusions and be prudently suspicious of those who push for a rush and who

fabricate articulable suspicion for virtually every target [Ham-sandwich regime],

conduct, which in U.S. v. Blumenberg regrettably resulted in a decade of

catastrophic consequences, abuse of judicial process and textbook Due Process

violations.

21

xxi) Finally, despite the wide temporal separation, a legitimate opportunity arose

to prove that a strained justice system can work in the end and that “losers can

turn winners”, when stacked cards are revealed.

k) Appellant-Movant submits that the [Court] record is taken as judicial

appellate notice, that “Case-01-cr-571” OPEN DATE was - just as PACER

INDEX shows - June 19, 2001 and that inaugural entries (A.¶ 34, see docket text

DOC#1, DOC#2) were fake, and that they provide no reason to credit government

assertions and every reason to discredit them.

l) The counterfactual scenario the government posits is genuinely baseless,

meritless and must be stricken. Appellant’s unlawful 07:00 A.M. arrest and

shackled transport over the George Washington Bridge from another district (NJ)

was without consent, and without a warrant, because a proper warrant could not lay

at that early hour on 06/19/2001.

Further Affiant Sayeth Naught.

Certified on this 22 April 2015 in Hamburg, Germany

Affiant, Fritz G Blumenberg /s/

22

Certificate of Service

Fritz G Blumenberg deposes and says that on this day he served copy of his Opposition and Cross-Motion, his Affidavit and Exhibit I by PDF file upon:

Preetinder Sahib Bharara by email preet.bharara@usdoj.gov

Michael Levy by email michael.levy@usdoj.gov

Case Manager Anna Greenridge by email anna_greenidge@ca2.uscourts.gov

Movant Christian Viertel by email viertel2020@aol.com

And prosecases@ca2.uscourts.gov

I declare under penalty of perjury that the foregoing is correct.

April 22, 2015 Hamburg Germany

Appellant, Cross-Movant, Defendant Fritz G Blumenberg /s/

EXHIBIT I follows unnumbered (5 pages total)

Subject: Crying Wolf once too o�en, WHERE IS THE REAL MOTION ? I only have her affirma"on.

From: "Prof.C Viertel" <viertel2020@aol.com>

Date: 22.04.2015 18:59

To: "Fritz G. Blumenberg" <fritzblu@aol.de>, funaro.juris@fondapio.org

Fritz,

I received Wednesday's USANYS "Hail Mary Affirmatio n"without a MOTION. Apparently penned to - deja vue -short-circuit (pun intended) due process withprocedural trickery." They" probably yearn to target another favorableex-prosecutor panel which could rubber stampthe bejesus out of the RULE OF LAW and leaving thecards stacked." We" have to hope for at least two honorable panelistsfrom the "Kozinski-School-Of-Justice"who are unafraid of Preet Bharara's scorn.

1) Please remember that the Grand Juror Form AO 190must be on record but has been kept from usand our attorneys eyes. And this completed FORM wil l,if not counterfeit, will demonstrate ourbackdating charge once moreover.

CryingWolfoncetoooften,WHEREISTHEREALMOTION?Ionly...

1of4 22.04.201518:59

2) During t he last 5 weeks before John Lee was nolleprossed [“Br.” ¶ 52-53] Richard Zabel,

Lee’s AkinGumpStraussHauer counsel (today he isDeputy USA), cornered the prosecution toeither let Lee off the hook, or face moreembarrassment from the GrandJuror minutes of conduct that the gov't could notafford to be more candid about:

3) In 2006, when I filed - for the third time- a seriatim demandin the "OPEN COURT or NOT" issue, which wasintrinsically tied to GrandJuror Foreman, below is the missive thatbesieged due process, checksand balances of justice.Jurisdictional deficiencies are never waived,and never waivedby badly lawyered-up aliens.Here it seems " my fault and conjecture", butCohen failed tosimply submit the record of that "OPEN COURT"

CryingWolfoncetoooften,WHEREISTHEREALMOTION?Ionly...

2of4 22.04.201518:59

claim and letssee if it was factual, instead of smoke andmirrors and lackof candor and ethical conduct.

4) Promptly resulting in judicial evasivenessDOC#174

5) and so much for the FUGITIVE RUSE.Prejudice at itsBEST, alien-discrimination under color oflaw.

CryingWolfoncetoooften,WHEREISTHEREALMOTION?Ionly...

3of4 22.04.201518:59

Contact me if you have questions, you may use thisemail & materialfor your Opposition.

Best Christian

------------------------Furchtlos verfaßt auf dem ERIKA-Feldpost-Tipper "Tr euerPioneer"- mein Apfel unter die Kartoffeln: CryptologyEnigMa+Piu4*OKW

CryingWolfoncetoooften,WHEREISTHEREALMOTION?Ionly...

4of4 22.04.201518:59