STEPHEN P. PINGREE
RICHARD P. MCCLELLAN III
Of Counsel: WILLIAM K. AMONA
7 Waterfront Plaza 400
500 Ala Moana Blvd.
Honolulu, Hawai`i 96813
Telephone: (808) 599-5911
Fax: (808) 377-5057
Attorneys for Defendant
John W. Marsh
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I
UNITED STATES OF AMERICA, ) CR. NO. 94-00749 ACK
)
Plaintiff, ) DEFENDANT'S RESPONSIVE
) MEMORANDUM TO PLAINTIFF'S
vs. ) OPPOSITION TO DEFENDANT'S
) MOTION TO DISMISS FOR LACK
JOHN W. MARSH, ) OF JURISDICTION;
) CERTIFICATE OF SERVICE
Defendant. )
) Date: November 21, 1994
) Time: 1:30 P.M.
) Judge: Alan C. Kay,
__________________________________________) U.S. District Court Judge
DEFENDANT'S RESPONSIVE MEMORANDUM TO PLAINTIFF'S OPPOSITION
TO DEFENDANT'S MOTION TO DISMISS FOR LACK OF JURISDICTION
(received 10/24/94)
Plaintiff has failed to rebut or even address the international and national
legal principles as well as the historical evidence propounded by the Defendant in
his motion to dismiss for lack of jurisdiction. Plaintiff's derogation of those
arguments as being frivolous, without any supporting basis for that remark is
unfortunate. Plaintiff uses one of the avoidance techniques employed by those in
positions of dominance against those on the ethical and moral high ground. In the
face of this failure to contest such principles of international and national law or
historical evidence when the opportunity to do so was available, this failure must
be taken as a concession to these principles and evidence.
Among those principles set forth in the Defendant's earlier memorandum on
this subject was that a state in international law may not excuse itself for
violations of international law on the basis that its municipal or internal
constitution or laws permitted such violations. It is clear why the Plaintiff would
like to have the court accept this principle as frivolous. It is by Plaintiff's use of the
internal laws of the United States of America that the Plaintiff is now attempting to
justify the violations of international law. Beware the thief in judgment of itself!
Those internal laws cited by Plaintiff are two congressional acts, the
Newlands Resolution and the Admissions Act, and three cases, Shively v. Bowlby,
152 U.S. 1 (1894), Hawaii v. Mankichi, 190 U.S. 197 (1902), and U.S. v.
Lorrenzo, 995 F.2d 1448 (9th Cir. 1993). Even if those internal laws were valid
and applicable to the case at bar (which they are not), they should still not be
followed in violation of international law.
Let us address Plaintiff's restricted view of law as being only those which
arise out of the U.S. Congress or the U.S. judicial system. At the least, we should
take one further step and bring into consideration the U.S. constitution. Certainly,
Plaintiff would not consider it frivolous too. Let us consider the Plaintiff's
reference to the Newlands Resolution in light of the U.S. Constitution.
In our original memo, we stated:
Article II, 2 of that fundamental document requires all treaties to be
ratified by 2-thirds of those present in the U.S. Senate. It made no exception for
the Mckinley Administration, it made no exception for Hawai`i, it made no
exception for special opportunities of thievery, it made no exceptions at all! The
Newland's Resolution, through which the treaty of annexation between the United
States of America and that fraudulent puppet government, the Republic of
Hawai`i, glided through the U.S. Congress, never received the requisite vote of
the U.S. Senate. It failed to pass the requirement of the Constitution of the United
States of America. (at page 18)
Apparently, by Plaintiff's silence on this point, it must have conceded the
existence of Article II, 2 of the U.S. Constitution and its violation by the
Newlands Resolution. Thus, this court should give no validity to that resolution.
The Plaintiff's second "authority" is the Admissions Act in which the U.S.
Congress simply took Hawai`i as a U.S. territory and now elevated it to a full
fledged "State" of the U.S. union of States. The Admissions Act simply built upon
illegal grounds starting with the Newlands Resolution. The U.S. could not admit
into its union territory it had never properly held! Plaintiff has completely ignored
this point.
The Plaintiff's third "authority" is the case of Shively v. Bowlby, 152 U.S. 1
in which the Plaintiff attributed a quote by the U.S. Supreme Court regarding the
annexation of Hawai`i. This 1894 case had nothing to do with the question of
Hawai`i, the matter of Hawai`i's annexation not arising until 1898! The subject of
the propriety of Hawai`i's invasion and overthrow by the United States, or of the
applicability of U.S. jurisdiction over Hawaiian citizens was simply not at issue in
that case. The Plaintiff obviously had not read the case when it cited and attributed
its quote to it.
The Plaintiff's fourth "authority" is the case of Hawai`i v. Mankichi, 190
U.S. 197 (1902). It is questionable whether Plaintiff took the time to read this case
as well! The issue in this case is Congress' authority to extend the protection of the
U.S. Constitutional provisions to territories which it annexes. The case did not
deal with the validity of the Newlands Resolution as measured against
international law or against the U.S. Constitution. Those matters were not placed
in issue by the parties and the court never properly addressed the subject.
The Plaintiff's final "authority" is U.S. v. Lorrenzo, 995 F.2d 1448 (9th Cir.
1993) in which Defendants Lorrenzo and Brown used the U.S. mail to
communicate into the U.S., spoke on the telephone with co-conspirators living
within the U.S., made false statements to the IRS, intimidated U.S. citizens
regarding their reportable income, obtained funds through FHA, etc. The
defendants asserted themselves into U.S. subject-matter jurisdiction.
Here, defendant is a Hawaiian citizen who acted totally within the territory
of the nation of Hawai`i and committed no act upon which the U.S. could assert
jurisdiction by virtue of the subject matter. In the Lorrenzo case, the 9th Circuit, in
dicta, stated that the defendants presented no evidence that the federal government
currently recognize the Kingdom of Hawai`i or received any immunity arising from
the existence of the Kingdom. That may have been the situation in the Lorrenzo
case. But here, the defendant has cited and provided the court with much more
than what the 9th Circuit claimed was missing in Lorrenzo. Here, we provide the
U.S. Congressional Apology signed by the President of the United States of
America, incorporating U.S. President Grover Cleveland's Address to the joint
houses of Congress on December 18, 1893, in which a clear confession is made of
the U.S. complicity in the overthrow of an independent nation. Here is an
admission that the U.S. recognized the Kingdom of Hawai`i, which recognition
was interrupted by the illegal acts of the U.S. agent to Hawai`i, U.S. Minister
Plenipotentiary, John L. Stevens.
Furthermore, the defendants in the Lorrenzo case appears to have raised a
defense of immunity. In this case, the defense is not immunity, this is a case of
simple lack of jurisdiction where the question of immunity is not relevant.
The holding in Lorrenzo simply does not apply here.
CONCLUSION
Plaintiff's opposition memo is completely off the mark. Not one of the
Defendant's points on why this case should be dismissed on jurisdiction grounds
has been controverted. Yet, the cavalier air in which the Plaintiff addresses this
issue and proceeds with the current prosecution suggests another reason for his
confidence. It must be because there's another game being played upon Hawaiian
citizens. That is that their claims to Hawaiian sovereignty, as a matter of custom
which now underlies an implicit judicial policy and not law, must be simply
shunted aside, demeaned as frivolous, lest it shakes the very foundation upon
which the U.S. government has established themselves as legitimate in Hawai`i.
To that extent, the Defendant is a mere puppet, victim of an American game
of hypocrisy, in a society where America's words and creed counts for nothing if it
interferes with entrenched American interests. Trapped in this situation, what can
we do? One thing is to take counsel in the words of our latest Queen, Lili`uokalani
to you:
Oh, honest Americans, as Christians hear me for my down-trodden
people! Their form of government is as dear to them as yours is precious to
you. Quite as warmly as you love your country, so they love theirs. [D]o
not covet the little vineyards of Naboth's so far from your shores, lest the
punishment of Ahab fall upon you, if not in your day in that of your
children, for "be not deceived, God is not mocked." The people to whom
your fathers told of the living God, and taught to call "Father," and whom
the sons now seek to despoil and destroy, are crying aloud to Him in their
time of trouble; and He will keep His promise, and will listen to the voices
of His Hawaiian children lamenting for their homes. (Liliuokalani,
Hawai`i's Story, Tuttle Press, Tokyo p.373-374)
Dated: Honolulu, Hawai`i. 1994.
_____________________________
William K. Amona
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document shall be served upon
the office of the United States Attorney by depositing said document in the U.S.
Mail, postage prepaid, on November 8, 1994, addressed to:
Leslie E. Osborne, Jr.
Ass. U.S. Atty.
Room 6100, PJKK Federal Building
30 Ala Moana Blvd., Box 50183
Honolulu, Hawai`i 96850
Dated: 7 November 1994
______________________________
WILLIAM K. AMONA
See PL 103-150, S.J. Res. 19 consisting of an apology for the overthrow of the
Kingdom of Hawai`i, SJ 19 IS version, 107 Stat. 1510, hereafter Apology Bill, at p. 5.