Академический Документы
Профессиональный Документы
Культура Документы
No 09-5080
Consolidating No. 09-5161
Appellant,
v.
Appellees.
of those three cases shows that they themselves are not relevant to the
and the case authority that they cite it is important to keep in mind that the
1
Case: 09-5080 Document: 1226668 Filed: 01/21/2010 Page: 2
dismissal below was a dismissal under Rule 12(b)(6) for failure to state a
allegations that the appellee Soetoro a/k/a Obama was not actually born in
Hawaii but rather outside of Hawaii. App. 12-15 This relates to the
born citizen as that term is used in Article II, Section 1, Clause 5 of the
just de facto.
they show that at the time of the birth of the appellee there was a gaping
loophole in that the statute did not provide for direct registration of birth
where a child was born outside of Hawaii by people living there even if the
still have obtained a Hawaii birth certificate. Further the territorial statue is
2
Case: 09-5080 Document: 1226668 Filed: 01/21/2010 Page: 3
relevant because it shows that such a document, even were the original
and examination.
When we look at the three cases cited by the appellees we see that
they are not relevant to the situation that we have just described in the
State, 565 F.3d 857, 870 (D.C.Cir.2009). The quote that the appellees take
from that opinion is” “We deny the plaintiffs’ request for judicial
them would not affect our opinion.” We submit that the comparison of the
two case situations is not an apt one and that the Larson case is not relevant
to this case. To begin with the Larson case does not involve a complaint in
the same sense as this case at all. It involves a request for information of a
U.S.C.A. § 552. The FOIA statute provides for the request by members of
the public but specifies specific exemptions that allow agencies to state that
that the agency need not release the information as being within those one or
3
Case: 09-5080 Document: 1226668 Filed: 01/21/2010 Page: 4
regard to a complaint such as the one in this case. The exemptions under
FOIA that were at issue in the Larson case were exemptions 1 and 3.
creates a danger that revealing the information will harm either national
creates the need to not reveal the information for similar purposes. In the
Larson case the statute in question was mostly the National Security Act
(NSA). That case involved a long discussion of national security and risks
were even revealed whether the Department of State had relevant documents
very end of the case, after an additional discussion in the lower court in that
4
Case: 09-5080 Document: 1226668 Filed: 01/21/2010 Page: 5
throwaway, made a brief statement that also it would not take judicial notice
of certain “articles.” It did not explain what the articles were. Presumably
they were from a newspaper or magazine. The court in that case said that it
would not take judicial notice of the “articles” because they would not affect
the lengthy analysis it had made of whether, under FOIA, the affidavits of
the Department of State entitled its entitlement to the two exemptions for the
can be seen that the holding in the Larson case did not involve statutes and
citation with regard to this case. It does not involve legislative enactments
appellees cite the case of Trans-Stirling, Inc. v. Bible, 804 F.2d 525, 528 (9th
Cir.1986). The appellees do not quote from the case. Instead they
case “noting that a court need not take judicial notice of irrelevant facts.” As
with the Larson case the Trans-Stirling case does not involve an issue of
whether, on a Rule 12(b)(6) motion to dismiss that has been granted, the
5
Case: 09-5080 Document: 1226668 Filed: 01/21/2010 Page: 6
complaint made assertions that were not taken as true or that were not
appellate level under Federal Rule of Appellate Procedure 28j, which is the
appellate proceedings. The 9th Circuit found that the device was being used
for judicial notice the motions still failed and in a single sentence said that in
any case the facts involved were not relevant. The lack of relevance thus
The federal case was a suit that had been brought under 42 U.S.C. §
1983 for violating allegedly the federal statutory and constitutional rights of
Commission and Board, state bodies which oversee and regulate the
6
Case: 09-5080 Document: 1226668 Filed: 01/21/2010 Page: 7
alleged “skimming” of funds from the casino in question which was owned
the properties in question as part of the settlement, pay a fine and take other
settlement it had entered into in the state proceeding and brought the federal
suit claiming improper coercion and use of the state’s investigative and
The district court granted summary judgment to the defendants and against
The case had gone beyond the pleading stage and evidence had been put in
the record. So the situation in the appeals court, unlike in this case, was one
where the appellants were seeking to put new evidence into the record.
The motions made, improperly, as the 9th Circuit held, under Rule 28j
put forward two pieces of such evidence. One was information from Las
Vegas newspaper articles that had been written after the state investigation
had gone forward. The second piece of information was the fact that federal
dismissed certain charges against Trans-Stirling. The 9th Circuit did not set
7
Case: 09-5080 Document: 1226668 Filed: 01/21/2010 Page: 8
out what those federal charges that were dropped were but simply held that,
were not in any case relevant. That is, these items of information were not
relevant to the gravamen of the 9th Circuit’s decision, which was that there
had been no coercion and bias or pre-judgment by the state authority based
on the evidence put forward. That newspaper articles after the fact of the
prosecutors were not relevant to these issues of coercion and bias and pre-
judgment in the state gaming commission and board proceedings are not
analogous too and do not relate to the relationship between the territorial
statute with regard to which we are requesting judicial notice and the
allegations in the complaint in this case about facts which indicate that the
appellant Soetoro a/k/a Obama was not a natural born citizen within the
The third case cited by the appellees in their opposition without much
explanation is United States v. Byrnes, 644 F.2d 107, 112 (2nd Cir.1981). It
is cited for the proposition that “a trial court properly refused to take judicial
opinion, which was in a criminal case, reveals that the comparison, again, is
not well-founded. The crime that was at issue in the Byrnes case was one of
8
Case: 09-5080 Document: 1226668 Filed: 01/21/2010 Page: 9
lying to a grand jury. The lie that the defendant Byrnes was accused of
telling the grand jury was that she had not possessed certain rare swans that
had been given to her by a Canadian man who was alleged to have been in
the business of illegally smuggling rare birds, in that case a kind of rare
swan in particular. The defendant claimed that the swans in question had
been dead when given to her and that she had thus not been in possession of
them as live swans. The evidence, however, had established that she not
only had received the swans alive but had transferred them alive to another
party to be taken care of by that party while their sale for a profit was
arranged. The court below had emphasized that one of the criteria for
determining that the lie to the grand jury was a crime was that it interfered
with the investigation in question. In that case the lie was found to have
interfered with finding out about and locating the witness to whom the lave
swans had been transferred to be taken care of. This was all affirmed by the
2nd Circuit.
The defendant Byrnes sought to get the court to take judicial notice of
rarity, required them to be registered. They had not been so registered and
the woman to whom they were transferred for safekeeping was not aware of
9
Case: 09-5080 Document: 1226668 Filed: 01/21/2010 Page: 10
Byrnes sought to advance for the court’s taking notice of taking judicial
notice of the regulations, which was an extremely strained one, was that if
the regulations required the swans to be registered and they were not so
registered then they were not actually in law ever in her possession since
they were not registered. The court quite sensibly took the position that
possession was possession. The woman had the swans and passed them on
and whether she registered them or not had nothing to do with whether or
not she actually had them in her possession and lied about it. Therefore the
regulations were not relevant to the question of whether or not she lied to the
grand jury when she said, falsely, that the swans were dead when she
received them.
highly relevant to the allegations of the complaint in this case because they
relate directly to the question of how, under that statute, a child born outside
of Hawaii might receive a birth certificate saying that he had been born in
Hawaii. Thus the Byrnes case has no relevance to this one, even less
relevance than the other two cases cited by appellees, if that’s possible.
Respectfully submitted,
/s/
10
Case: 09-5080 Document: 1226668 Filed: 01/21/2010 Page: 11
John D. Hemenway
Counsel for Appellants
4816 Rodman Street, NW
Washington, DC 20016
(202) 244-2819
(202) 538-0005
CERTIFICATE OF SERVICE
/s/
_______________________
John D. Hemenway
11