UNITED STATES OF AMERICA ] CAUSE NO. SA-95-CR-201 (2)

]

vs. ] SPECIAL APPEARANCE

]

MICHAEL J. KEARNS ] In Propria Persona

)

I, Michael Joseph Kearns, pro per, accused, and not the artifical entity known as MICHAEL J. KEARNS, do hereby demand of this tribunal to take Judicial Notice of this Legislatively created concurrent court, captioned above, and acting under Admiralty Jurisdiction, to cease and desist all actions in criminal case SA-95-CR-201. Michael Joseph Kearns has chosen the applicable law for the causes that he desires in Common Law. My sovereign freemen character as one of the posterity is exclusive to "We the People" and is proper for Michael Joseph Kearns to make thess claims.

COUNT ONE;

Accordingly, Michael Joseph Kearns in my common law activity necessary to provide food, shelter and sustinence to my family, did all of the "alleged acts" on solid ground known hereafter as "earth". The study and writings of Erastus C. Benedict, LL.D., established as an "Authority" on Admiralty Jurisdiction since 1870 in the Sixth Edition is quoted as reference herein; United States District Court according to Vol 1, Chap II Sect 5 reads as follows in Benedicts on Admiralty;

"The use of both terms admiralty and maritime excludes indeed that jurisdiction which the English admiralty anciently exercised over non maritime cases arising beyond the sea."

Thereby the United States District Court is an Admiralty jurisdiction and thereby denied access to freemen and freewomen characters that act on "earth", and not the sea, so that it, precludes any further criminal venue by that Court.

COUNT TWO

RESTATES AS THOUGH FULLY RE-WRITTEN ALL OF THE AVERMENTS OF COUNT 1; AND,

To corroborate and confirm COUNT ONE, I offer you again from Benedicts on Admiralty, Sect 2, Vol I;

"Admiralty jurisdiction, in contract cases, is dependent upon the maritime nature of the contract, and in tort, upon the maritime locality of the substance and consummation of the wrong,i.e. it must have taken place upon the high seas or other public navigable waters of the United States."

Thereby again the United States District Court is an Admiralty jurisdiction and thereby denied access to freemen and freewoman characters that were not "floating" as a "vessel", upon the sea but living on "terra firma", which would preclude any further criminal venue by the United States District Court.

COUNT THREE

RESTATES AS THOUGH FULLY RE-WRITTEN ALL THE AVERMENTS OF COUNTS 1 AND 2; AND,

The Court has denied every demand of this accused regarding jurisdiction and venue and those matters are substantiated in the record of this matter.

Three of three pages are hereby re-confirmed by Section l0 of Benedict on Admiralty, that there was no concurrence of the bodies as stated herewith;

"With the exception of the original jurisdiction of the Supreme court, an Act of Congress is necessary to vest in a Federal Court any part of the judicial power which the Constitution bestows upon the Federal Government; the Constitution and the statute must concur."

Thereby again the United States District Court is an Admiralty jurisdiction and without Congressional authority granting power over freemen and freewomen it can only act under "color of law" and not "in law". Michael Joseph Kearns does not grant this power by contract to the United States District Court, thereby nullifying the authority of the United States District Court, operating in Admiralty jurisdiction to hear the case known as SA-95-CR-201.

COUNT FOUR

RESTATES AS THOUGH FULLY RE-WRITTEN ALL OF THE AVERMENTS OF COUNTS 1,2, AND 3; AND,

To corroborate and confirm my position, I hereby quote from Benedict on Admiralty, Chap IV Sec 20 Vol I, as follows;

"The common law courts always had jurisdiction of a cause of action against a ship owner in contract or in tort, when he could be reached personally and money damages only were demanded. That right was not excluded by the Admiralty grant in the Constitution and the concurrent right also to hear such cases as well as other cases of admiralty jurisdiction was immediately given to the newly constituted Federal judiciary. The jurisdiction of the admiralty and of the common law courts is therefore to a certain extent concurrent. The common law jurisdiction, when concurrent with admiralty jurisdiction, may be exercised by State courts or, within the limitations of the Constitution and of the acts of Congress, by the United States District Court on the common law side."

Thereby again the United States District Court on the issue raised here must step aside, and cease and desist from any further hearings of this instant case SA-95-CR-201 as they are a Jurisdiction foreign to the common law venue that has been chosen as the proper forum, not admiralty, as this instant cause is not of Admiralty nature.

COUNT FIVE

RESTATES AS THOUGH FULLY RE-WRITTEN ALL THE AVERMENTS OF COUNTS 1,2,3, AND 4; AND,

Under Sect 2l of Chap IV of Vol I, of Benedict on Admiralty states the following;

"Concurrent Jurisdiction Under Act of Congress. The Judiciary Act, which in l789 established the United States courts and defined their jurisdiction, is a contemporaneous construction of the Constitution and confirmed the existing right of the common law courts by providing that the United States District Courts should have 'exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction' etc. saving to suitors, in all cases the right of a common law remedy, where the common law is competent to give it. The saving of common law remedies, however has not been allowed to permit the saving of remedies unknown to the common law, such as workmen's compensation remedies."

Under Sect 22 of Chap. IV of Vol I, of Benedict on Admiralty, states;

"Concurrent Remedy in Personam. The common law remedy saved to suitors is the right to proceed in personam against the defendant which remedy the common law is competent to give"

Thereby again the United States District Court on the Admiralty side of the Courtroom, must move over and grant the hearing of Michael Joseph Kearns, to the Common Law side of the same Courtroom, as this cause has been brought to the wrong side of the Court, as Common Law is the choice of the forum of the "sui generis" as stated by me constantly, as being not under the Admiralty jurisdiction. Exercising the common law checks and balances, in the Courts, established by the Constitution.

COUNT SIX

RESTATES AS THOUGH FULLY RE-WRITTEN ALL THE AVERMENTS OF COUNTS 1,2,3,4, AND 5; AND,

Under Sect 23 of Chap IV of Vol I, of Benedict on Admiralty;

" Exclusive Admiralty Jurisdiction in Rem....The savings clause of the Judiciary Act and of the Judicial Code, does not contemplate admiralty remedies in a common law court. Its meaning is that in cause of concurrent jurisdiction in admiralty and at common law, the jurisdiction in the latter is not taken away.The remedy which State courts may administer, though it may be subject of regulation and modification by State statute must be according to the general course of the common law.

Thereby again the United States District Court must cease and desist from the elimination of the power, and authority of the common law court to exist and administer justice to those freemen and freewomen that do not exercise domain to being a "vessel" of admiralty jurisdiction. Michael Joseph Kearns is just the opposite of that venue, and demands this cause be heard in common law venue, by a competent court of common law, learned in law.

COUNT SEVEN

RESTATES AS THOUGH FULLY RE-WRITTEN ALL THE AVERMENTS OF COUNTS 1,2,3,4,5, AND 6; AND,

Under Sect 26 of Chap IV of Vol I, of Benedict on Admiralty it states the following;

"Maritime Law, How far Applied in Common Law Action. Apart at least from an Act of Congress- and to avoid a question of its constitutionality, such an Act will be construed if possible to intend a uniform rule at law and in admiralty, the substantive rights conferred by maritime law must be recognized equally in an action brought at common law, whether in Federal or State Courts".

Thereby again the United States District Court does not have an authority or a license to deny access of freemen and freewomen to be brought at common law venue, irregardless of where the case originated. Michael Joseph Kearns is again that freeman that was recognized properly in the Common Law, and the Admiralty portion of the Courtroom must acknowledge that right and not a privilege.

COUNT EIGHT

RESTATES AS THOUGH FULLY RE-WRITTEN ALL THE AVERMENTS OF COUNTS 1,2,3,4,5,6,AND 7; AND,

Under Sect l22 of the IV Chap, of Vol I of Benedict on Admiralty it states the following;

The Judiciary Act of l789 established the United States Courts and defined their jurisdiction as a contemporaneous construction and implementation of the Constitution. It confirmed the jurisdiction of the common law courts by providing that the United States District Courts shall have "exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, saving to suitors, in all cases the right of a common law remedy, where the common law is competent to give it."

Thereby again the United States District Court is compelled to administer justice to the seafaring world of admiralty and maritime, and must allow freemen and freewomen grant of jurisdiction and adjudicate the case under the Doctrine of the Common Law on the Common Law side of the Court, and granted justice by the common law of contract. It is not an option of choice by the existing United States District Court, but a right that "we the People" can demand.

COUNT NINE

RESTATES AS THOUGH FULLY RE-WRITTEN ALL THE AVERMENTS OF COUNTS 1,2,3,4,5,6,7, AND 8; AND,

Again in the same section l22, I bring to this Admiralty Court's attention, in the United States District court the following;

"The saving to suitors of a common law remedy was not intended to inhibit the admiralty from taking cognizance of a case over which the common law courts had a concurrent jurisdiction. Conversely, in cases of concurrent jurisdiction in admiralty and common law, the jurisdiction of the common law courts is not taken away. The saving was for the benefit of suitors who sought to commence action. The provision gave the plaintiff and preserved for him the option to choose his forum if he sought a common law remedy. Although not free from doubt, it is generally thought that a plaintiff's choice of a state forum may not be defeated by removal to federal court where the only basis of federal jurisdiction is the admiralty nature of the case."

Thereby again the United States District Court over stepped its jurisdiction, and usurped its admiralty authority, and infringed on the rights of Michael Joseph Kearns et al, all American "freemen and freewomen" sui genesis, by removing me (us) from the authorities (Bexar County included) against my will, and by blatantly ignoring my attempts to be a plaintiff role, through nonfeasance, misfeasance, malfeasance by Magistrate Judge Norah King, U.S. Attorney Edmund Sargus jr. , and Asst. U.S. Atty Dale Williams Jr, among others.

RESTATES AS THOUGH FULLY RE-WRITTEN ALL THE AVERMENTS OF COUNTS 1,2,3,4,5,6,7,8, AND 9; AND,

According to Sect l23 of Chap IV Vol I, I quote the following;

"Concurrent Remedy in Personam. The remedies saved by the Savings to Suitors Clause are those which may be granted in an in personam action against the defendant as explained by the Supreme Court in 1918. Plainly, we think, under the saving clause a right sanctioned by the maritime law may be enforced through any appropriate remedy recognized at common law...More recently the Court has said, 'Admiralty jurisdiction is exclusive only to those maritime causes of action begun and carried on as proceedings in rem..."

Thereby this freeman known as Michael Joseph Kearns, et al, character recognized in the Savings to suitors Clause, so the specific remedy is not a part of the ability by the United States District Court to recognize or not to recognize, as it is in the venue of the common law jurisdiction, and outside the Admiralty jurisdiction of the United States District Court.

RESTATES AS THOUGHT FULLY RE-WRITTEN ALL THE AVERMENTS OF COUNTS 1,2,3,4,5,6,7,8,9, AND 10; AND,

Under Sect l50 of Chap IV Vol I it does state the following;

"There are no courts of the United States which are exclusively admiralty courts. The power to exercise admiralty jurisdiction is distributed by Acts of Congress, and the duty to administer law on maritime principles is imposed upon all judicial agencies alike by the general grants of judicial power."

Thereby the United States District Court must cease and desist from operating as a monopoly, in all matters heard by that side of the Courtroom. As stated earlier, the same Courtroom must offer the opportunity to hear the pleadings in the other venues of common law and equity. By the elimination of the common law side of the United States District Court the array of this Court is breaking the laws of this land, and forming a trust of "insiders" and allowing for two sets of laws one for the "knaves and one for the slaves", and this elimination of our venues must stop immediately.

COUNT TWELVE

RESTATES AS THOUGH FULLY RE-WRITTEN ALL THE AVERMENTS OF COUNTS 1,2,3,4,5,6,7,8,9,10 AND 11; AND,

According to Sect l52 of the same chap. and Volume, it does state the following;

"The District Courts have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, which jurisdiction extends to all navigable waters"

Thereby again the United States District Court in their capacity of Admiralty jurisdiction, can not enforce their will, dictates and decrees, on a freeman or freewoman that seeks their livelihood, and lifestyle on "terra firma or land", especially if these same freemen or freewomen seek a common law forum for their justice.

COUNT THIRTEEN

RESTATES AS THOUGH FULLY RE-WRITTEN ALL THE AVERMENTS OF COUNTS 1,2,3,4,5,6,7,8,9,10,11, AND 12; AND,

According to Sect l93 of the same Chap IV and Vol I of Benedict on Admiralty, it does state the following;

"Venue. The main purpose of the Acts is to place the United States on the same footing as a private party in respect to claims, whether in tort or upon contract, arising out of the operation of its government vessels but without actual arrest and seizure or requirements of bond or stipulation."

Thereby again the United States District Court can not in any way, shape, or form compel or force me into being one of their vessels. I am not "chattel property", but I am a child of the living GOD, created by HIM in HIS image, and there are no strings attached between the government benefits and myself a freeman sui generis. SO HELP ME GOD!!!

COUNT FOURTEEN

RESTATES AS THOUGH FULLY RE-WRITTEN ALL THE AVERMENTS OF COUNT 1,2,3,4,5,6,7,8,9,10,11,12,AND 13; AND,

According to Sect 2l3 of Chap XIX of Vol I it states the following;

"Suits by Private Parties Against States of the Federal Union. By virtue of its sovereignty, each of the States is immune from suit by its own citizens or other persons except by its own consent. By the eleventh amendment to the Constitution of the United States, the judicial power of the United States may not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State. The Amendment applies in the scope of its intent, though not by its express terms, to proceedings in admiralty."

Thereby, the United States District Court, under the authority granted through its connection with the "Ten Mile Sq." of Washington D.C. is definitely not included geographically within those mathematical limitations, as San Antonio, Bexar County, Texas, is far outside of the "ten mile" range of the Federal jurisdiction. And this freeman Michael Joseph Kearns, does not earn any benefits from the Federal government by which I am to be included into that State.

COUNT FIFTEEN

RESTATES AS THOUGH FULLY RE-WRITTEN ALL THE AVERMENTS OF COUNTS 1,2,3,4,5,6,7,8,9,10,11,12,13, AND 14; AND,

According to Sect 220, it states the following;

"How a Foreign Sovereign Raises Objection to the Jurisdiction. The foreign sovereign may take any of several courses in order to raise the question of his immunity from suit. He may appear in the suit, filing a special appearance which does not admit submission to the jurisdiction, claiming the vessel as his own, and raising the jurisdictional issue.

Thereby again the United States District Court was remiss from doing what the Section above states, as numerous times the freeman Michael Joseph Kearns pleaded "Coram non Judice" in front of Magistrates Primomo, and Stein, and in front of Judge H. F. Garcia and Edward C. Prado, to challenge the jurisdiction which that Court did not have over me. I am not a "chattel property" known as a "vessel of the United States", so as such it is an open and shut case that I do have a right to be heard in Common Law, SO HELP ME GOD!

COUNT SIXTEEN

RESTATES AS THOUGH FULLY RE-WRITTEN ALL THE AVERMENTS OF COUNTS 1,2,3,4,5,6,7,8,9,10,11,12,13,14 AND 15; AND,

Chapter 9, Section 122 of Benedicts on Admiralty, Seventh Edition, pages 9-44 et seq. , under "Maritime Crimes" states very clearly:

"The following statutes related specifically to Admiralty and Maritime Crimes. Those crimes evoking minor penalties have been omitted."

Following is then listed numerous "Admiralty and Maritime crimes", including but not limited to: 18 U.S.C. § 5, United States Defined, 18 U.S.C. § 7, Special Maritime and Territorial Jurisdiction of the United States Defined, 18 U.S.C. § 9, Vessel of the United States Defined, 18 U.S.C. § 13, Laws of States Adopted for Areas within Federal Jurisdiction, 18 U.S.C. § 81, Arson within Special Maritime and Territorial Jurisdiction, 18 U.S.C. § 371, Conspiracy to Commit Offense or to Defraud United States.

One of the "crimes" specifically I have been charged with is "Conspiracy to Commit Offense or to Defraud United States", per 18 U.S.C. § 371, and I never had a contract or dealing with the United States where I knowingly, intentionally, or voluntarily entered into any contract or agreement to place myself with the United States Admiralty or Maritime Jurisdicion.

THEREFORE, I demand this court stop the admiralty proceeding now undertaken and convene the common law side of this court, in the alternative, remand to this action to a common law court to hear the matter.

Presented without prejudice.

Respectfully

_______________________

Michael Joseph Kearns, sui juris

c/o P.O. Box 201525

San Antonio, Texas 78220

210-599-0789

Certificate of Service

I, Michael Joseph Kearns, hereby certify I have placed a copy of the above Demand to Take Judicial Notice in the first class mail or hand delivered on the 29th day of January, 1996, to the following:

Mr. Joe Mike Egan, Jr.

819 Water St.

Kerrville, Texas 78028

Mr. Bill Harris, Asst. U.S. Attorney

601 North West Loop 410, Suite 600

San Antonio, Texas 78216

____________________________

Michael Joseph Kearns