UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

Shakti Patriot                        )
                                      )
                                      )     CASE NUMBER: MC-05
      PETITIONER                      )
                                      )
                                      )
   V.                                 )
                                      )
The United States, Wells Fargo Bank,  )  MOTION TO DISMISS
Bank of America, Northwest Bank       ) UNITED STATES' REPLY
                                      ) TO OPPOSITION TO MOTION TO DISMISS
     RESPONDENTS                      ) PETITION TO QUASH

MOTION TO DISMISS UNITED STATES' REPLY

Petitioner Shakti Patriot, pursuant to the Special Procedures for Third Party Summonses, 26 USC § 7609, hereby files this MOTION TO DISMISS “UNITED STATES' REPLY TO OPPOSITION TO MOTION TO DISMISS” and requests this court to proceed with Petition to Quash the above named third party record-keeper from revealing Petitioner's private records to the Internal Revenue Service, and to quash the summonses. The Petitioner respectfully moves this Court to disregard the government’s reply to the opposition motion to dismiss on the following grounds:

  1. The Respondents Replay has presented false facts.

  2. The Respondent replay lack merit for it is not focusing on the merit and issues of the case, but on non essential bickering.

  3. The respondent is wasting this Court’s and Petitioner’s time with frivolous arguments.

  4. Court has to make ruling who has the jurisdiction when records sought by the summons are in different state from where summons has been mailed to.

Arguments

  1. The Respondent has made this statement in the Reply to Petitioner Opposition:

“Petitioner filed his response on July 26th …”

Which is false statement. Petitioner filed the Opposition to Motion to dismiss on Monday July 25th, 2005 and not on July 26th as Respondent is falsely claiming. Below is the copy of the stamp from the court clerk from District of Oregon and it clearly shows it was filed on July 25th, 2005.

  1. Next the Respondent makes this claim:

“The United States sent its motion for filing on July 7, 2005, copying petitioner. Including three days for service by mail, petitioner was served on July 10, …”

Let it be noted that the July 10th, 2005 was a Sunday, and how could the Petitioner receive the Respondents reply on Sunday. Did Petitioner received the reply on Sunday July 10, 2005? Of course not! Petitioner received the reply on July 11th, 2005. From July 11th plus 11 days is July 22nd which was Friday. Taking into account that the Petitioner is responding from New Mexico the Petitioner Opposition to Dismiss was filed on Monday 25th, 2005 since obviously court was closed on Saturday 23rd and Sunday 24th.

Petitioner has observed numerous times the deceptive practices by U.S. Attorneys where they always “file” they briefs on Thursdays (observe that July 7th was Thursday), knowing that will go out next day Friday and since the weekend is next two days these is not way that the recipient is going to receive the brief in 3 days. The most optimistic would be to receive it on Monday, however, often that can be Tuesday or Wednesday. That makes minimum from 4 to 6 days for delivery and since U.S. Attorney always argues that only 3 days are allowed for delivery they very conveniently inroad from 1 to 3 day from a very short period of 11 days for the reply.

That same deceptive schema was used by Mr. Janik in this case and court can see how conveniently he claims that the Petitioner was served on July 10th, 2005 in spite of the fact that it was a Sunday. Further more Mr. Janik states false fact claming that the Petitioner response was filed later that it really was, thus playing the days number game.

Petitioner is requesting this court to put stop to this silly number game, since the response period is very short and since the mail delivery can not be guaranteed to be always exactly 3 days, then one to three day leeway is not unreasonable. Especially, in the case of pro se the Petitioner reminds the Court that US Supreme Court ruled in Haines vs. Kerner 404 US 519 (1972) that pro se litigants are to have a relaxed form of court procedure.

  1. The real issue here is why is Respondent focusing on this silly number game and not giving any opposing argument that have substance and merit. And the answer to that is because they do not have opposing argument of substance.

4. The Respondent argument (p. 2):

“II. THIS COURT LACKS JURISDICTION OVER THE NEW MEXICO
PETITION TO QUASH

Petitioner entire opposition argues matters solely at issue in his New Mexico petition to quash. See for example the Opposition at 6-9, where the petitioner is explicitly responding to arguments sets forth in a motion to dismiss filed by an Assistant United States Attorney in petitioner's New Mexico case. The exhibits and declarations attached to petitioner's opposition in this case are captioned as having been filed in the District of New Mexico. Petitioner's opposition does not address the motion to dismiss at issue in this case.”

Is absurd one for that is not the case here. The argument and exhibits are included to familiarize this court with the case in New Mexico and as a supporting document to show this Court clear reason way the Petitioner was forced to file Petition in Oregon in addition to one filed in New Mexico.

  1. Further Respondent statement (p. 2,3):

“It appears that petitioner's Opposition should have been filed in the District of New Mexico, not the District of Oregon. This Court does not have jurisdiction over matters currently proceeding in the United States District Court for the District of New Mexico.”

Is so meritless that is mind boggling. Opposition filed by the Petitioner is related to the Motion to Dismissed filed in US District Court for the District of Oregon by the Respondent and that is what the Petitioner is replying to. So how can any sane person say it should have been file in the District of New Mexico. And then the following sentence is even more absurd:

“This Court does not have jurisdiction over matters currently proceeding in the United States District Court for the District of New Mexico.”

There is no a shred of evidence that the Petitioner has requested or is expecting US District Court for the District of Oregon to make any ruling over the case in the District of New Mexico.

  1. Finally, the Respondent is just repeating the same argument from the Motion to Dismiss:

“Without restating the United States' argument in this reply, petitioner filed his petition to quash fifty-one days beyond the filing deadline for filing such petition.”

Which was address by the Petitioner and shown that that is not the case. The Respondent is just is rehashing same argument over and over again even though they do not apply here.

  1. This is a unique situation for the way the summons to Wells Fargo Bank was issues created a judicial uncertainty and challenge. The US Attorney in New Mexico claims that US District Court for the District of Oregon has the jurisdiction. The US Attorney in Oregon claims, that the US District Court for the District of New Mexico has the jurisdiction. That is what is at issue hear. Petitioner is not in the position to make decision or judgment which court has the jurisdiction for that must be decided by the courts in question. This all came upon as a consequences of one improperly issued summons for an illegal fishing expedition. And to be frank the Petitioner is tired of this childish bickering by US Attorneys from New Mexico and Oregon about jurisdiction while avoiding to addressing the real issues.

7. The questions in front of this Court are:

    1. Is the summons issued to Well Fargo Bank NA, administratively and judicially legal?

    2. In a case of such summons which court has the jurisdiction?

    3. How is party involved in such summons to approach 26 USC § 7609(b)(2) “right to proceeding to quash” when it is not clear who has the jurisdiction?

    4. Summons that requests recodes to be mailed, and not being brought to the hearing, bypasses the hearing in front of the hearing office and violates 26 USC § 7609(b)(1) the Right to Intervene. How can summons like that be legal?

  2. These are the real issue in this case and not did reply came 1 or 2 day late or early, or does court has jurisdiction or not. The Respondent has not addressed any of these issues. Obviously there is no reason to deny above question for they are real meters for this Court to address.

Conclusion

The Opposition to Motion to Dismiss has been filed on time. This is not a case of a simple summons issued to a third-party record-keeper. This is a summons that has been issued in a way that represents jurisdictional confusion and is not covered by 26 USC § 7609. There are important question raised by the Petition to Quash and Opposition to Motion the Dismiss which this Court has to address.

WHEREFORE, the Petitioner Shakti Patriot, respectfully requests that the Respondents Reply to Opposition to Motions to Dismiss be rejected for, as shown in the previous analysis, it does not show any new substantive issues or arguments and that the Petition to Quash Summons and the Opposition to Motions to Dismiss be honored, and that the Summon to Wells Fargo Bank be quashed, because the government has not made the necessary case to defend the summons.

CERTIFICATE OF SERVICE: I hereby certify that on or about this date a copy of this Motion to Dismiss the Reply to Opposition to Motion to Dismiss was mailed to opposing parties.


Date: 8/4/2005

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Petitioner, pro se Shakti Patriot
Address: