Petition for Writ of Certiorari — David Jah, Sr., Petitioner v. United States

V

I

22~TSLg)3 ORIGIN

No.

FILED

APR 1 8 2023

IN THE

SUPREME COURT OF THE UNITED STATES

David Jah Sr.

— PETITIONER

(Your Name)

vs.

United States

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

NINTH CIRCUIT

United States Court Of Appeals

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

David Jah Sr.

(Your Name)

P.O. Box 3725

(Address)

Adelanto, CA. 92301

(City, State, Zip Code)

FCI #1 Victorville Medium

(Phone Number)

received

APR 1 8 2023

jliyisigul

QUESTIONS PRESENTED

1) Will the theory of the government, assisted by their witnesses, known to be

fabricated, asserted to be harmful and outreagous conduct, be enough to reverse a

conviction?

2) Based on the evidence, was the subject property in commerce to be applicable

for Congress's Commerce Clause jurisdiction? See U.S. v. Mennuti, 487 F.Supp 544 (1980)

3) Is the property in connection to interstate commerce "too attenated to rationally

qualify as 'substantial.'" to be applicable to the 844(i) statute?

4) Is it a material variation, by eliminating a element in the indictment, jury

instruction, and statute in order to answer a jury's question?

5) Does a defendant's right to defend themself become a structural error, when

the court allows the jury to determine a element of the statute in a way different

than the element's definition? (in Re: interstate commerce)

6) Did the Court commit a plain error, by stating the government will use tricks,

to deter the defendant from acting in pro se, then allow the government to prevail

on the cliam during trial that the interstate commerce element did not need to be

proven? (based upon a per se rule applicable to hotels, resturants, bars, and rental

property.)

7) Did the Court violate defendant's Sixth Amendment Right to represent himself at first

and'.second1 request before having him be subjected to a violation of his Speedy Trial Act

and Right.?

8) Did the Court Order for a competency evaluation preventing a Speedy Trial Act

right violate defendant's Constitutional due process when no where in the record

showed that dedendant was not competent and pro se filings were filed in an attempt

to raise claims in his defense?

9) Did the final jury instruction alter the charging terms of the indictment that

the possibility of the grand j,ury would not have indicted?

10) Is it a constitutional violation for a District Court to disallow evidence to

show innocence of the alleged crime by their denial of subpoena's of buisness and

personal records to rebut the claim the property was being used for a commercial

purpose?

QUESTIONS PRESENTED CONT.

11)

Before denying a rehearing request, that a counsel failed to advise of, did

the appeal court violate due process, by ruling before the petitioner (allowed to

proceed in pro se) whom was awaiting their case files and court records hindered

from raising issues for the first time en banc?

12) Did the appellate court abuse it's discretion~

by not analyzing plain errors

raised by appellate counsel in regards to Speedy Trial Act and Rights violation,

jury pool and selcection process that did not produce any African-Americans?

13) Is it unconstitutional for merits sought to be raised by counsel filed in

Pro Se ignored?, j

14) Can a property not open to the public, advertised, licensed, claimed or used

for buisness tax write off purposes be deemed used for a commercial purpose by a

rational jury? (As stated by defendant a "jury of my peer" would need that evidence)

15) Does a California licensed attorney 'per s|' affect interstate commerce when

they specialize in State matters?

16) Can the United States have jurisdiction over a property allegedly used for a

commercial purpose that does not affect interstate commerce?

17) Did the appeallate Court depart from the accepted and usual course of judicial

proceedings by not analyzing the jury being deliberately misled as to matters of .which

the prosecutors had personal knowledge?

18) Is it a denial of due process vhen the prosecution did not correct false testimony it vas a^aoce of it?

19) Was the failure to correct misrepresentation as to substance of plea bargin made with witness grounds

to .merit a reversal?

20) Vlas there a 5th Amendment Violation vhan the Federal Gavernmant gained a conviction by use of perjured

testimony?

LIST OF PARTIES

[X] All parties appear in the caption of the case on the cover page.

[ ] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

TABLE OF CONTENTS

OPINIONS BELOW

A

JURISDICTION

B

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

TABLE OF AUTHORITIES CITED

C

STATEMENT OF THE CASE..........................................................

D

1-2

REASONS FOR GRANTING THE WRIT......................

3-8

CONCLUSION

9-10

INDEX TO APPENDICES

APPENDIX A

MEMORANDUM DENIAL OF DIRECT APPEAL.^/U.S.C.O.A. (9th Cir.)

CASE # 21-10213

APPENDIX B

EN BNNC DENIAL

APPENDIX C

Trial Transcripts Of Perjured Testimony Known: To Be False By The

United States Government

APPENDIX D

APPENDIX E

APPENDIX F

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[jd For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

A

to

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[X] is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

[ ] reported at

5 or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix-------- to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the _

appears at Appendix

court

to the petition and is

[ ] reported at

or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

1.

to

JURISDICTION

[X] For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was November 30, 2022

[ ] No petition for rehearing was timely filed in my case.

[x] A timely petition for rehearing was denied by the United States Court of

Appeals on the following date: February 09, 2023_____ _ , and a copy of the

order denying rehearing appears at Appendix R

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including______

(date) on

(date)

in Application No. __ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix_______

[ ] A timely petition for rehearing was thereafter denied on the following date:

and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including____

(date) on

_ (date) in

Application No.__ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S.ct. 2781 (1979)

Due Process Clause of the Fourteenth Amendment

Commerce Clause Powers

Interstate Commerce Act

Jones v. United States, 529 U.S. 848 (2000)

18 U.S.C. § 844(i»

87 L Ed 2d 802

Brady v. Maryland-(1963) 373 US 83, 10 L Ed. 2d 215, 83 S. Ct. 1194

TABLE OF AUTHORITIES CITED

CASES

United States v. Lopez, 514 U.S. at 558 -59 S. Ct. (1995)

Blount v. Rizzi, 400 US 410 > 91 S. Ct. 423 (1971)

United States v. Henderson, 721 F.2d 662 (9th Cir. 1983)

United States v. Morse, 785 F.2d 771, 775 (9th Cir 1986)

United States v. Kenny, 645 F.2d 1323 (9th Cir. 1981)

Stirone v. United States, 361 U.S. 212, 218-19 S. Ct (1960)

PAGE NUMBER

1

2

2-4

2

2

2

Gibbons vs. Ogden, 6 L Ed 23

United States v. Morrison, 529 U.S. 598, 607,120 S. Ct 1740 (2000) 4

United states v. Holston, 343 F.3d 83, 88 (2nd Cir. 2003)

Jones v. United States, 529 U.S. 848 (2000)

Ex parte Bain, 121 U.S. 1, 30 (1887)

Boagv. Raines, 769 F.2d 1341, 1344 (9th Cir. 1985)

United States v. Espino, 892 F.3d 1051 (9th Cir. 2018)

United States v. Hugs, 384 F.3d at 768 (9th Cir. 2003)

4;’

4

3

5

5

5

6

'6

6

6

6

Van Nguyen v. Curry, 736 F.3d 1287 (9th Cir. 2013)

McCleskey v. Zant, 499 U.S. 467 111 S.Ct 1454 (1991)

Henera v. Collins, 506 U.S. 390, 404, 113 S.Ct 853, 122 L.Ed 2d. 303 (1991)

Jackson v. Virgina, 443 U.S. 307, 99 S.Ct 2781, 61 L.Ed 560 (1979)

Lewis v. Jeffers, 497 U.S. 764, 781, 110 S.Ct 3092 (1990)

United States v. Olano, 507 U.S. 725, 734, 123 L.Ed 2d 508, 113 S.Ct 1170 (1993) 7

.7

United States v. Gonzalez, 786 F.3d 714, 718-19 (9th Cir. 2015)

8

Af-Cap Inc. v. Chevron Overseas (Congo) Ltd., 475 F.3d at 1088-89 (2007)

9

Wilborg v. United States, 163 U.S. 632, 16 S.Ct 1127, 41 L.Ed 289 (1896)

9

Clyatt v. United States. 197 U.S. 25 S.Ct 429, 49 L.Ed 726 (1905)

9

Napue v. Illinois (1959) 360 US 264, 3 L Ed 2d 1217, 79 S. Ct 1173)

STATUTES AND RULES

18 U.S.C. § 844 (i)

Commerce Clause Powers

Interstate Commerce Act

49 U.S.C.A. § 10101 et seq.

1-2

1

2-4

.3.

OTHER

Definition Of Interstate Commerce

Definition Of Interstate Commerce Act

.United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392 (1976)

Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005)

4

4

10

10

STATEMENT OF THE CASE

The subject property, a private residence with a bedroom used as a home

office did not have a sufficient connection with interstate commerce to support

commerce clause jurisdiction. The home office was not open to the public

for buisness purposes, nor advertised for buisness. The room in question

nor the home was used for buisness tax write off purposes. The home owner a

California licensed attorney rented a seperate office space and utilized it to

use as an location to provide proof of service under the penalities of perjury,

and meet with clients. This place was also advertised as his buisness location.

An interstate nexus is required to find jurisdiction under 18 U.S.C. § 844(i)

which this case is based upon.

This case presents an issue of importance

beyond the particular facts involved. During deliberations a jury asked the

court "in order to prove the [interstate commerce] element, does the building

need to be used in a commercial use and interstate commerce or does the

building only need to be used for commercial purpose".

The district court

responded it would be sufficient to prove the [interstate commerce] element if

the property was only used for a commercial purpose.

The issue is, the indictment and the jury instruction both stated the

building was used in interstate commerce. The 18 U.S.C. § 844 (i) states that

a building must be used in interstate commerce or activity affecting such. Is

it constitutional for a material variation of an indictment, jury instruction

and statute to occur during deliberations? Is it a violation of due process

to eliminate a element of a statute one has been indicted under?

Congress has the authority to legislate within the confines of the Commerce

Clause powers in three contexts: First, Congress may regulate the use of the

channels of interstate commerce... Second, Congress is empowered to regulate

and protect the instrumentalities of interstate commerce, or persons or things

in interstate commerce, even though the threat may come only from intrastate

activities... Finally, Congress commerce authority includes the power to

regulate those activities that substantially affect interstate commerce. See

Lopez, 514 U.S. at 558-59, 115 S. Ct. at 1629-30 (citations omitted).

18 U.S.C. § 844(i) states Whoever maliciously damages or destroys, or

attempts to damage or destroy, by means of fire or an explosive, any building,

vehicle, or other real personal property used in interstate or foreign commerce

or in any activity affecting interstate commerce... shall be in violation of

the statute.

1 of 10

By enacting 18 U.S.C. § 844 Congress intended to protect buisness properties

engaged in interstate commerce or in activities affecting interstate commerce.

§ 844(i) when enacted the legislation made clear the requirement of interstate

and foreign commerce affect in order for the statute to be applicable to the

subject property. Thus, § 844(i) applies only to the destruction to interstate

property contrary to the appellate courts decision that it only needs to used

for a commercial purpose.

Judges are supposed to review the text of statutes rigorously, Laws are

not ambiguous in most cases, to allow the government to arrogate to themselves

and court the legislative and judicial authority to re-write and interpret laws.

Members of the Court abdicate their constitutional duty to interpret statutes

when the arrogate to themselves.

The existence of a conflict between the decision by the Northern District

and Circuit Court's are contrary to the text of the 844(i).statute and the

United States Supreme Court whom have ruled the material variation of any of

the aforementioned is unconstitutional. See United States v. Morse, 785 F.2d 771

775 (9th Cir. 1986)(citing United States v. Kenny, 645 F.2d 1323 (9th Cir. .1981)

Variance between an indictment and the proof presented at trial is a violation c

of due process and is unconstitutional thus requires a new trial.

Prejudice is shown by the variance because the opportunity to prepare a

defense was not allowed and that the right to be tried only by the.charges

presented*in an indictment returned by a grand jury was violated. Also see

United States Supreme Court decision in Stirone v. United States, 361 U.S. 212,

218-19, 80 S. Ct. 270, 4 L, Ed 2d 252 (1960)

It is for Congress, not the United States Supreme Court to re-write a

federal statute nor a District Court. Blount, 91 S. Ct 423, 27.(1971). Chief

Justice Marshall's description of commerce was adopted by Chief Justice

Rehnquist in United States v. Lopez, U.S. 549, 115 S. Ct. 1624 (1995).

"Commerce, undoubtedly, is traffic, but it is something more: it is intercourse.

It describes the commercial intercourse between nations,: and parts of nations,

in all its branches, and is regulated by prescribing rules for carrying on

that intercourse," id at 553 (quoting Gibbons, 22 U.S. at 189-90).

2 of 10

REASONS FOR GRANTING THE PETITION

The Supreme Court's unamious decision in Jones v. United States, 529

US 848 (2000) stated that 18 USCS § 844(i) is applicable to buildings used in

interstate or foreign commerce it made it clear that interstate commerce was

the jurisdictional hook for Federal prosecution. For purposes of determining

whether a building affects commerce under 18 USCS § 844(i) the late Justice

Ginsburg held that the proper inquiry if the statute was applicable first

is into the function of the building and then whether that function affects

interstate commerce. "And" means "and" and not or.

The charge that interstate commerce is involved is critical since the ^

Federal Government's jurisdiction rests only on that inference. It is the

important function of the Supreme Court to resolve disagreements among lower

courts about specific legal questions, The legal questions are did the courts

fail to apply the legal standard to its analysis properly in the underline

case to determine if the 18 U.S.C. 844(i) is applicable? Was it a harmless

error for the jury to be advised that despite the grand jury s findings, the

statute, and the indictment charging the defendant with conspiracy to damage

or destroy a building used in - interstate commerece - and then advise^in.a

that a building is used in an activity affecting interstate

jury instruction

commerce if the building is used for a commercial purpose? Was the defendants

due process rights denied by not having specific notice that the 844 § could

be altered at trial preventing the preperation of his defense?

The errors cannot be deemed to be merely an insignificant variance between

the allegation thus be harmless, when the crime charged being a felony and

the Fifth Amendment requiring that prosecution be begun by indictment

which commenced at the grand jury stage. After an indictment has been returned

its charges may not be broadend except by the grand jury. The court held in

Bain "that after the indictment was changed it was no longer the indictment

of the grand jury who presented it. see Ex parte Bain, 121 U.S. 1, 30 (1887)

An additional reason granting this petition is the deprivation of being able

to subpoena buisness records by the district court of the law office to prove

no interstate commerce affect excisted and infact if a commecial activity

was taking place at the subject property. Albeit when one particular kind

commerce is charged to have been burdened a conviction must rest on that

charge and not another, The charge on its own judgment is a substantial

right which cannot be taken away with or without court amendment.

3 of 10

By altering the meaning of interstate commerce a doubt was created in the

integrity of the judicial process. The Ninth Circuit has held whether

property i:s interstate commerce is a fact for the jury to determine under

all circumstances. See Henderson, 721 F.2d 662, 666 n.3 (9th Cir. 1983)

(revised 2019). The district court also ruled when denying defendants

Motion To Dismiss, the issue on interstate commerce is for the jury to decide

yet this was not the case based on the jury instruction and answer to the

jury's question.

Black's Law Dictionary Sixth Edition

Interstate Commerce. Traffic, intercourse, commercial trading, or the

transportation of persons or property between or among the several States

of the Union, or from or between points in one State and points in another

State; commerce between two States or between places lying in different:

States.

Interstate commerce Act. The Act of Congress of February 4th, 1887

( 49 U.S.C.A. § 10101 et seq.) designed to regulate commerce between the

States, and particularly the transportation of persons and property, by

carriers, between interstate points.

The Supreme Court has said that "a jurisdictional element may establish

that the enactment is in pursuance of Congress' regulation if interstate

commerce. See Morrison, 529 U.S. at 612. (emphasis added). As stated in

Patton, " The ultimate inquiry is whether the prohibited activity has a

substantial effect on interstate commerce." 451 F. 3d at 632. The afore­

mentioned is in line with the two part inquiry requirement mentioned in

Jones, 529 U.S. at 848. The mere existence of jurisdictional language is not

to be relied on solely puporting to tie criminal conduct to interstate

commerce. See United States v. Holston, 343 F. 3d 83, 88 (2nd Cir 2003)

As stated in Morrison, 529 U.S. at 615 there should at the least be

evidence, not just speculation, of a direct not " attenuated", effect on

commercial activity. The subject property broken outter pane of a.double

pane window did not even effect the sleeping person in the bedroom to awake

them. See Sentencing transcripts Cross Examination of Lauren Dodson.

4 of 10

By failing to assert actual innocence based on the theory of the government

that co-defendant's Dennis Williams and Kristopher Alexis-Clark filled up a

bottle with gasoline and threw it at the subject property as they testified

created the presumtion that a molotov cocktail was utilized. Albeit no test

results supported that claim any flammable fluid or compounds were detected

on the bottle fragments nor the label that held the fragments together.

Because the 844(i) statute requires the prosecutor to establish a connection

to interstate commerce and that infact the overt act equating to vandalism

was not indeed what it was. Should the aforementioned had been raised they

would have been grounds for reversal, thus not harmless. See Boag v. Raines,

769 F.2d 1341, 1344 (9th Cir. 1985)(failing to raise meritless argument on

appeal does not constitute ineffective assistance of counsel). This is not

the case at hand, The evidence and the record does not reflect that the

government proved the material elements of the charged offense.

A jury instruction error does not amount to plain error unless it could

have ment the difference between acquittal and conviction, Clearly if the

interstatescommerce element was not found to be proven then an acquittal was

the outcome of the trial, Although the appellate attorney failed to argue

issues that the appellant desired and attempted to file with the court upon

review that ineffective assitance can be reviewed de novo. The court is also

able to view the claim of what is ultimately a constructive amendment de novo,

as well as a variance claim, The appellant substantial rights were affected

and is clear because as stated the jury submitted a question and the court

utilized a theory that demonstrated an affect on the outcome of the trial. It

is obvious if the used in interstate commerce question was raised and the

answer diverted from the text of the 18 U.S.C.:§ 844(i) statute, what was

before the grand jury, and the indictment which the charge begun thus a

harmful error occurred warranting a reversal of the conviction.

Although an objection was made of the jury answer the instruction itself

was not because the appellant acting in pro se at trial did not see the error

thus should not be deemed as waived argument, The court has the authority to

and should exercise their authority and reverse the conviction since the

record demonstrates a plain error affected a defendant's substantial right.

See United States v. Espino, 892 F.3d 1051 (9th Cir. 2Q18)see also United

Sates v. Hugs, 384 F.3d at 768(9th Cir. 2003). Herein "the.crime charged"

[in the indictment] was substantially altered during deliberations, The

chance to prepare for such altering was not allowed, the record shows that

a request to obtain buisness records and tax records was denied.

5 of 10

In Van Nguyen v. Curry, 736 F.3d 1287 (9th Cir. 2013), the Ninth Circuit

found the holding of Martinez v. Ryan,_U.S._, 132 S.Ct. 1309, 1315 (2012), when

Supreme Court announced that ineffective assistance of counsel claims deserves

to heard.and applies to all Sixth Amendment ineffective assistance claims,

both trial and appellate, that have been procedurally defaulted by ineffective

counsel in the initial-review proceedings." Id. at 1295-96.

The court is to apply a four-part test showing grounds to establish cause

to overcome procedural default under Martinez, one that the ineffective

assistance is "substantial" in essence a claim that demonstrates that if the.

court fails to consider the claim it would result in a "fundamental

miscarriage of justice. " McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454

(1991). A miscarriage of justice means that a constitutional violation has

probably resulted in the conviction of someone who is actually innocent. See

Carrier, 477 U.S. at 496. To show a miscarrage of justice, it is required

that.a colorable showing of ‘factual innocence be made. Henera v. Collins, 506

U.S. 390, 404, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993).

Nguyen v. Curry, 736 F.3d 1287 (9th Cir.12:013 )is the Ninth Circuit precedent .

which concerned the ineffectivness of an appellate counsel, The evidence is

clearly established by the United States government which supports the law on

sufficiency see Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L. Ed. 560

the test is "whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319;

see also Lewis v. Jeffers, 497 U.S. 764, 781, 110 S. Ct. 3092 (1990). Thus,

only if "no rational trier of fact" could have found proof of guilt beyond a

reasonable doubt will a petitioner be entitled to relief, Jackson, 443 U.S.

at 324, n. 16.

Herein the building must have been proven to be used in interstate commerce

to sustain a conviction. The court must presume that congress adopted the

common-law definition of that term and not adopt the common-law meaning of the

term if they are not instructed to do so by congress. Thus, by the jury being

allowed to make a determination granted by the court to find the;element of the

interstate commerce be proven if the building was used for a commercial purpose

was a plain error, Should the adoption of such a theory been congress intent

clearly the interstate commerce element would have been excluded and a

commercial purpose inserted in its place.

6 of 10

The government possessed evidence that clearly showed that they were misleading

the jury and allowed their witnesses to use perjured testimony without correcting

them.

Plain error is an error that is clear, pLain or obvious.

United States v.

Olano, 507 U.S. 725, 734, 123 L.Ed. 2d 508, 113 S. Ct. 1170 (1993).

By law, even if

there was a failure to raise an objection at trial, in regards to the governments

actions and false assertions a fire-bomb/ Molotov cocktail was used, in an attempt

to cornu t arson at the subject property 126 Rassani Drive; Equal protection of the

laws allows this plain error to be recognized.

The Equal protection clause is a

provision in the Fourteenth Amendment to United States Constitution which guarantees

prevention of persons to enjoy the same protection of the laws which is enjoyed by

others, and that no person should be liable to no other greater burden and charges

than such as are laid upon others.

Surely a greater burden was forced upon the

petitioner as a pro se litigant by the governments misconduct, which affected his

"substantial rights", that was an error that affected the outcome of the District

Court proceedings,

The showing of a jury being misled is clear, the error is a ground

that supports a reversal of the judgement with prejudice.

In the present case, the governments theory and witnesses testimony cannot be

seen as a mere inadvertent slip of the tounge.

necessary.

existed.

The concerted acts were not even

As a matter of law the jury only needed to be convinced a conspiracy

The juors did not need to agree on the particular facts satisfying the overt

act element of the conspiracy charged.

See United States v. Gonzalez, 786 F.3d 714,

718-19 (9th Cir 2015). [BECAUSE THE OVERT ACT WAS IN FACT ONLY VANDALISM.] The theory

chose by the government was to fabricate a false narrative that the co-conspirators

made an attempt to commit arson by using a Molotov cocktail in gross detail that the

witnesses testified they believed the targeted window was selected because they believed

someone was sleeping in the room.

It can not be proven beyond a reasonable doubt that

the fabricated theory supported by perjured testimony did not influence the jury to

believe that the co-conspirators did fill a bottle with gasoline lite it and throw it

at the subject property. The government was aware of laboratory results that disputed

the theory and testimony.

7 of 10

The testing of the bottle and label still attached did not detect any flammable

fluids or compounds for the bottle evidence to be defined as a Molotov.

The error was

plain, and obvious to allow perjured testimony in order to mislead a jury thus it is

clearly demonstrated

"substantial rights" were violated and affected.

The assertion by the petitioner is that he was prejudiced by the governments

conduct and did not recieve a fair trial.

Material e/idence was fabricated that was

introduced to strengthen the governments case.

The fabricated theory and testimony

was directly relevant to the crime charged and to 'other crimes' that the government

used to support its case, which consisted all of undisputable evidence of arson attempts

except the subject property, which this case is based.

The cumulative effect affected

the outcome of the District Court proceedings. Errors were plain and strightforward,

fitting the defintion of outrageous and prosecutorial misconduct.

The aforementioned has been articulated solely by a pro se litigant, unlettered

in the law. I am relying upon the United States Constitution the fairness and the

integrity of the judicial system.

Surely, I may not have formulated a perfect petition

for Writ of Certiorari, but for being denied the attempt ty the court and counsel to

raise issues during the direct appeal process, and [pjrevented by the Circuit Court

from doing so at the En Banc rehearing stage because no stay would be granted as the

Law office of Beles & Beles withheld petitioners case file and records, the denial for

rehearing was made as an attempt was made to retain never provided records.

Highest Court in the land reviews my petition on its Merits.

I pray the

My attempt is to show

that the cumulative effect of the errors committed with malice by the government and

by the Ninth Circuit affirming the Distrcit Court judgment departs from the accepted

and usual course of judicial proceedings thus equating to a compelling reason for a

Writ of Certiorari to be granted.

Furthermore in an attempt to show the alleged

conduct was not subject to Federal prosecution, the petitioner requests that the

Highest Court Of The Land take judicial notice of the Ninth Circuits decision it now

ignores see Af-Cap Inc. v. Chevron Overseas(Congo) Ltd., 475 F.3d at 1088-89 (2007).

8 of 10

The Ninth Circuit Held that it construes property used for a commercial activity

in the United States when it is put into action, pat into service, or employed for a

commercial activity. Not in connection with a commercial activity or in relation to

such.

Id. at 1091; see also id. at 1089.

Af-Cap Inc. v. Chevron Overseas (Congo).

In conclusion [reason] to grant this writ is because in Jones v. United States,

529 U.S. 848 (2000) the Justices in the unanimous decision in the Federal Arson

precedent case did not express a view on the question whether the Federal Arson Statute

18 U.S.C. § 844(i), is constitutional in its application to all buildings used for

commercial purposes as alleged in this case.

Twenty Three Years later, The Highest

Court In The Land is requested to find because the District Court denied subpoenas

requested by petitioner for buisness and tax records dealing with the subject property

this case can only fit the genre to the law enforcement authorities of the State thus

warranting the request to vacate the conviction and reverse the judgment of the Court

of Appeals with prejudice.

Citing Wilborg v. United States, 163 U.S. 632, 16 S. Ct.

1127, 41 L. Ed. 289 (1896); Clyatt v. United States, 197 U.S. 207, 25 S. Ct. 429, 49

L. Ed. 726 (1905).

The Supreme Court is at liberty to correct the plain errors

committed in the case at hand, as well as to expand on the Jones ruling and answer if

the subject property [as]: what the record reflects applidablerito the § 844 (i) "statute.

Furthermore correct the violation of the due process clause of the Fourteenth Amendment

for the government did not correct the testimony of principal witnesses that was false.

Lauren Dodsen stating that glass from the broken window was in her room when she awaken

the next morning when in fact the doubles pane window on the bedroom side did not break,

Kristopher Alexis-Clark and Dennis Williams testimony that they threw a Molotov cocktail

(a bottle filled with gasoline) at the subject property when the lab results showed that

was not the truth, and testimony of Special Agent Buenaventura that she requested the

casino footage after the 30 day window that the casino perserved its surveillance

footage when she did not do so and the false allegations made by Assistant United States

Attorney Kevin Rubino telling the court the government did not possess any casino footage

when the defendant filed a Bill of Particular's Motion.

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Pursuant to Napue v. Illinois,

even when the co-defendant's promise of consideration denial went uncorrected as with

the other false testimony uncorrected, because the government was aware that each false

statement under oath made was contrary to the evidence it possesed the setting aside the

conviction is warranted as held in an opinion by the Supreme Court of the United States

see Napue v. Illinois; ,'360 US 264, 3 L Ed 1217, 79 S.Ct 1173 and 2 L Ed 2d 1575 and

3 L. Ed 2d 1991. The Napue violation occurred an the results of such violation is deemed

a constituitional violation, making the conviction obtained by the use of known perjured

testimony fundamently unfair, and grounds for.the conviction to be set aside. There is a

likelihood that the false testimony could have affected the judgment of the jury.

United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct 2392, 49 L.Ed. 2d 342 (1976).

See

The

evidence in question was false aforementioned, the prosecutors representing the United

States government knew or should have known the testimony and remarks made to the court

and or jury were false based upon the discovery and the false testimony and evidence was

material. Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005). .Even a honest mistake gives

testimony "the ring of truth," making it all the more likely to affect the jury's decision.

In conclusion the Court of Appeals may not avoid to discipline the prosecutorial

misconduct ty presenting a false narrative to the jury in regards to a material aspect

of the case nor for allowing their witnesses to go un-corrected when they were under oath

and did not tell the truth as they swore to do infront of the court, jury and before God.

The acts were not harmless and require an automatic reversal. Each assertion is a part of

the record and should a evidentary hearing be granted will be made clear to the reviewing

court beyond a reasonable doubt. The overwhelming evidence of the defendants' guilt is

evident that the cumulative errors resulting in a 18 year sentence for a conspiracy to

commit arson when no fire occurred and [a] overt act as a matter of law beyond a reasonable

doubt was merely vandalism not applicable to the crime charged under 18 U.S.C. § 844 (i).

Based upon the merits and the petitioners presentation in pro se the Highest Court in the

Land is requested to grant the petitioners' writ of certiorari to the United States Court

of Appeals for the Ninth Circuit as well as the Motion of petitioners' leave to proceed

in forma pauperis, and Vacate the Judgment of conviction with prejudice as a prayer if ....

not at the least remand to the United States Court of Appeals for the Ninth Circuit for

further consideration to the aforementioned and notwithstanding;the Courts recommendations.

a:

T

David Jah, Sr. MSW In Pro Se

DATED IN APRIL 2023

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