UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA no 99 ~ Gr ~ 997 (JEK) MARTIN A. ARMSTRONG REPLY TO FOVERNMENT'S OPPOSITION ‘TO DEFENDANT'S MOTION FOR EMERGENCY BAIL OR TRANSFER TO HALFWAY HOUSE I, Martin A. Armstrong, hereby reply to the Government's Opposition to effectively obtain medical care although titled opposition to motion for Fmergency Bail or Transfer to Halfway Mouse, The Government has both misrepresented the facts and the law rendering its opposition frivolous. PRELIMINARY STATEMENT As will be demonstrated, the Supreme Court has clearly and directly held that any petition filed concerning prison conditions that do not effect the fact or the duration of the sentence, is outside the scope of habeas corpus and this vas taken clearly by Congress in exempting habeas corpus concerning the fact or duration of @ criminal sentence was NOT within the scope of the PLRA (Prisoner Litigation Reform Act). Consequently, the argument that jurisdiction lies in Canden, New Jersey only under 28 USC $2241, is completely a misstatement of law and frivolous. Secondly, the claim that Judge Bunb denied the relief again misrepresents the facts. Judge Bunb issued her opinion WITHOIT PREJUDICE on November 17th, 2010. That was the precise day that the Bureau of Prisons ("ROP") finally brought in a outside doctor Patel who confirmed Armstrong was not a liar, directed the BOP to provide an antibiotic for his eye, informed Armstrong he MIGHT have glaucoma only because the pressure in the eye was abnormal, and informed him he vas recommending hin for eye surgery. Judge 1Bumb dismissed NOT based upon the facts, but based upon the fact that Armstrong was pending Injunctive Relief in Washington, DC, and adopted the Government's claim Armstrong was forum shopping. However, it has been the Government who has spread Armstrong out over three circuits ensuring he cannot obtain a single proceeding to resolve any issue. Prom the outset, the Government filed the criminal charges FIRST, and then once he had self-surrendered in Trenton, New Jersey, only then the SEC & CFIC filed for a TRO in the SDNY before Judge Kaplan failing to then inform him that the US Attorney secretly had filed a Civil Asset Forefeiture in rem 10 days before and thus there was NEVER any jurisdiction to have sought a receiver nor create even the contempt, for the Supreme Court made that perfectly clear that once @ in rem seizure is filed, NO OTHER COURT may seek jurisdiction over the same assets, Republic National Bank v US, 506 US 80 (1992). Thus ANY JURISDICTION over the assets was ALWAYS and EXCLUSIVELY within the criminal court. They also failed to inform Judge Kaplan that equitable jurisdiction is confined to the territorial Jurisdiction of the court, precisely as also stated in Morrison v National Austra! Bank, 561 US - (08-1191)(6/24/10), There could have been NO jurisdiction whatsoever to seize a foreign corporation employing over 200 people outside the United States and direct a equity receiver to then run the corporation from the United States. It is black letter law that ONLY the court where a corporation was chartered has any such control over the internal management of the corporation, Rogers v Guaranty Trust Co, 288 US 123, 130 (1933), This was an illegal seizure under the Fourth Amendment that also "applies in a civil context." Soldal v Cook County, 509 US 56, 121 Led2d 450, 462 (1992). ‘The Government used the parallel SEC proceeding that was NEVER authorized to file AFTER a criminal case begins using equity to circumvent the Grand Jury, for NDICTWENT authorizing it to gather Congress limited the SEC jurisdiction to PRI evidence and "transmit" it to the US Attorney only to "institute" a criminal case, 15 USC 878u(4)(1). Congress could not, and did not authorize what has been done in 2the case at har for Article III established a STRUCTURAL subordination of equity to law maintaining that English subordination of Chancery to the King's Bench. "Under the constitution and laws of the United States, the distinction between common law and equity, as existing in England at the time of the separation of the two countries has been maintained ... The office and jurisdiction of a court of equity, unless enlarged by express statute, ... has no jurisdiction over the prosecution, the punishment, or the pardon of crimes ... [and t]o assume such a jurisdiction ... is to invade the domain of the courts of common law ... Any Jurisdiction over criminal matters that the English court of chancery ever had became obsolete long ago ...” In re Sawyer, 124 US 200, 209-210 (1888) "[T]he jurisdiction of the courts of the United States in chancery is bounded by that of the chancery in England." Ankenbrandt v Richards, 504 US 689, 119 LEd2d 468, 479 (1992), ALL EQUITY JURISDICTION IS CONFINED TO THE KNOWN REMEDIES AS IT EE CONE EE OO RES AS IT STOOD _IN 1789, Grupo Mexicano v Alliance Bond Fund, 527 US 308, 318-19 (1999), At no time could a parallel chancery court EVER assist a criminal prosecution at any time, nor could the grand jury be circumvented by appointing a receiver in chancery and then use that receiver to feed evidence to the criminal prosecution at the King's Bench, Blum y State of Maryland, 56 LRA 322, %4 Ma 375, 51 Atl 26 (1902)(collecting English case law). Indeed, this is a STRUCTURAL JURISDICTIONAL RESTRAINT UNDER Article IIT and it can neither be waived, rior defaulted upon, nor go uncorrected. This is why the Covernnent has spread Armstrong out over 80 many courts to PREVENT one court from addressing a serious issue that will overturn the issues in all courts. ‘This is the very SAME problem now arising from the Morrison decision holding that “{wJhen a statute gives no clear indication of an extraterritorial application, it has none," Id./Slip at 6. This charge of forum shopping shows the audacity that the Government adopts desperately preventing counsel of choice at every stage to ensure there would be no court that listens to a pro ge defendant to cover-up what they have done before the eyes of the whole world. Could Japan install a Receiver to run General Motors from Tokyo? Neither could the SEC in the case at bar. 3"[Clourts of equity can no more disregard statutory and constitutional re~ quirenents and provisions than can courts of law." INS v Pangilinana, 486 US 875 883 (1988). "A court of equity cannot, by avowing that there is a right but no remedy known to the law, create @ remedy in violation of law." Ibid. The Governnent knew the lav, but chose to ignore it. The Supreme Court had just come down with Grupo Mexicano against the Second Circuit and the SDNY in June of 1999, stating that there could be no freezing of assets where there was NO secured interest, for to establish a right to such assets, that was to be determined by a jury. The Government admitted directly in the criminal complaint that the notes were UNSECURED §5c and reaffirmed that in ite 2006 reply to the petition for a Declaratory Judgment to establish that fact. This meant that (1) there was no equitable jurisdiction to have frozen the assets, (2) no basis to have installed a equity receiver over UNSECURED assets, Shapiro v Wilgus, 287 US 348, 355 (1932), (3) no basis to have filed the civil contempt to compel the turnover of UNSECURED assets to which a right to trial by jury existed to determine that fact, and (4) that there could have been no crime as alleged since NO account belonged to a noteholder in the United States, that the notes were simply PURCHASING pre-existing portfolios or borrowing Japanese yen at fixed rates WITH NO SOLICITATION for managed accounts. Hence, the seminal case on the appointment of equity receivers states clearly, "the court of chancery has no Power directly to affect property out of the bounds of its jurisdiction." Booth v Clark, 58 US 322, 333 (1855). Yet, because Armstrong has been pro se, courts have turned a blind eye and a deaf ear. Nonetheless, this renains a serious SUBJECT MATTER JURISDICTIONAL ISSUE under Article III in addition to the entire Morrison ruling that strikes down the extraterritorial application of the Securities, Commodities, and Conspiracy Laws to Japan. This is a criminal matter, and any "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity." Skilling v US, 561 US ~ , 130 SCt 2896 (6/24/10); quoting: Cleveland v US, 531 US 12, 25 (2000). There was no notice 4that the purchase of a portfolio in Japan would somehow create a crime in the United States merely by investing in US Government securities. The Securities, Commodities, Conspiracy statutes all involve mens rea, and the lack of such notice further makes it clear there could be no crime. All of these statutes have a "mens rea requirement” raises a serious “notice concern” Skilling, supra. If two American corporations entered a transaction in New York, how is it possible that Japan could allege that this somehow violates its laws merely because one party purchases Japanese bonds? In the instant case, the headquarters was in Hong Kong, the foreign corporation was in compliance with its regulatory obligations in those countries, and under Morrison as well as Article III limitation upon equity jurisdiction, there was no standing in the United States to seize a foreign corporation nor charge anyone in the United States when there was no acts in the United States nor even a solicitation for any managed account with some limited power of attorney. RESPONSE TO_ARCUMENTS ‘The Government claims that the petition simply seeking to be taken to a hospital for medical treatment should be taken as a habeas corpus citing Second Circuit authority from 1997, The Government has misstated the law again arguing "he is challenging the execution, as to the imposition, of his sentence, which is cognizable only as a challenge to the conditions of his confinement under 28 U.S.C. §2241." Id./p2 This is simply erroneous. The Supreme Court has made this perfectly clear, that when challenging the execution of a sentence, that may in fact be presented by a civil rights suit or other equitable relief. When prisoners challenging their lethal injection to impose a death penalty, it was made quite clear that the writ of habeas corpus is to challenge the validity of the sentence be it the fact or duration as precisely stated in 18 USC §3626(g)(2). Therefore, when challenging the EXECUTION of a sentence, a prisoner may use civil rights suit, mandamus to compel a duty oved 28 SC $1361, or move for other equitable relief as Armstrong has done before this Court, Nelson v Campbell, 541 US 637 (2004); Hill 5vy McDonough, 547 US 573 (2006). The Government's argument for the dismissal is frivolous. The Government constantly misrepresents the law atall times to achieve whatever arbitrary action it desires at that moment. The DC Court of Appeals made it very clear that habeas corpus concerns the fact of or duration of a sentence. This has been made so clear by the Supreme Court it is unbelievable the Government still to this day argues otherwise. Since Preiser v Rodriguez, 411 US 475 (1973), the Supreme Court has distinguished between suits concerning prison conditions that are properly addressed inacivil rights suit from those that would effect the fact or duration of the sentence and would "necessarily imply" a conviction is invalid. This was reaffirmed in Heck v Humphrey, 512 US 477 (1994) holding that civil rights cannot be used to overtutn a conviction for that is habeas corpus. In Edwards v Balisok, 520 US 641 (1997) it was held Heck applied to prison disciplinary actions effecting good-time and thus required habeas corpus. In Sandin v Conner, S15 US 472 (1995), the DC Gourt of Appeals noted that the Suprene "Court also did not question the plaintiff's invocation of section 1983 in Sandin, a case in which the underlying prison disciplinary proceeding affected only the plaintiff's conditions of confine ment, not the duration of his sentence." Brown v Plaut, 131 F3d 163, 168 (DC Cir 1997) 515 US at 487. Seeking medical is no habeas. citing: Sandin Armstrong has simply asked that this court direct the BOP to take Armstrong to the hospital for medical attention that is a duty OWED and could even be addressed by mandamus 28 USC §1361. This is, like Sandin, and is “atypical” for the refusal to provide medical care violates the Bighth Amendment, but it also encounters numerous other violations of law. The noted historian Charles Hibbert, wrote The Roots of Evil (1963) that plagues normally began in London prisons and judges were dieing as well as the Lord Mayor. Healthcare began to protect the community and judges, not the prisoners. The policy of Dr Abigail Lopez de Lasalle refusing medical care to save money places the entire community at risk, If the BOP tries to save money in this way, bringing foreign offenders here and ignoring healthcare risks the entire nation, 6All the authority cited by the Government predates the holdings in Nelson and Hill, no less is entirely inconsistent with the entire Line of case law that starts with Preiser and is codified in §3626(g)(2). The Government constantly argues every which way from Sunday flipping the law to always claim there is NEVER any jurisdiction in any court to ever address the arbitrary desires of the Executive. THE DISTRICT OF NEW JERSEY DID NOT REJECT THE RELIEF SOUGHT ‘The Government has argued it serves no purpose to transfer this petition to the District of New Jersey as a habeas corpus for that district has already in fact rejected the relief. To set the record straight, the Government argued the flip-side that habeas corpus should be treated within the PLRA as‘if it vere a suit concerning prison conditions and be dismissed for failure to exhaust Administrative ronedies even those Congress expressed exempted habes corpus in 18 USC §3626(g)(2). It then cites Armstrong v Zickefoose, No 10-Cv-4388, 2010 WL, 4810654 (DNJ 11/17/10), and fails to point out that November 17th, was precisely the same day that the BOP had finally brought in Dr. Patel to examine Armstrong's eye, who inmediately disagreed with the BOP Dr, Abigail de Lasalle who had claimed she "saw" nothing, denied any medical treatment, was not qualifies as a eye doctor, and used no instrument nor would she take and culture to verify what Armstrong had complained of for nearly one year. Thus, the facts presented to this Court because it was the sentencing court and what the Government omits, is that the claims from the attack in New York and the problems with the same eye, the district of New Jersey refused to address stating they are cognizable only in the SDNY. The dismissal was without prejudice and the subsequent facts arose after the decision. Moreover, it was this Court that denied the bail on the basis that the BOP would provide medical care and they did not, so it was THIS Court's order that was ignored. The Government has cleverly accused Armstrong of forum shopping. The SEC filed against Armstrong in Washington violating the settlement agreement that was suppose to end all litigation, That is now pending before the Court of Appeals in the District 7of Columbia (Armstrong v SEC 09-1260), This Court at sentencing stated I had to seek credit for the contempt from the BOP pursuant to 18 USC §3585(b). When that was filed, the Government then argued (1) it should be dismissed for failure to Exhaust Administrative Remedies when that was contrary to the plain language of the statute 18 USC $3626(g)(2) that states habeas corpus is excluded when challenging the fact or duration of the sentence. ‘The government effectively suspended the writ of habeas corpus contrary to the Constitution. They took the Exhaustion, which was for prison conditions in a civil rights suit, and applied this to habeas corpus that would be indistinguishable from a $2255. They directed Judge Bunb to refuse to hear the habeas and dismiss it on a failure to exhaust despite the plain language of §3626(g)(2) that reflected the distinction first established in Preiser, holding that a civil rights suit could not be used as a habeas. So the Government flipped everything upside down and prevailed constructively amending §3626(g)(2) and ignoring Preiser, Heck, Edwards and Sandin. The habeas corpus structural right was denied erroneously, Armstrong v Grondolsky, 2008 US Dist Lexis 46206 (DNS 6/12/08) af£"d 2009 IIS App Lexis 17557 (3rd Cir 8/4/09), The Supreme Court subsequently came out and overruled what was done stating that not even Congress could legislate to delay or deny the right to file a writ of habeas corpus, for it was a structural right included in the Constitution rather than the later Bill of Rights, Boumediene v Bush, 548 US - , 128 SCv 1168 (2008). ‘The Government successfully managed to get Judge Bumb to just ignore not merely §3626(g)(2), but the record, Armstrong had previously moved against the BOP for other issues while in MCC NewYork. Chief Judge Mukasy on a motion for recon~ sideration, reversed himself ruling that Armstrong was correct that a civil contempt §1915(h). is outside of the PLRA and need not exhaust anything, as set forth in 28 US "[Z]t appears that [Armstrong] is not subject to the PLRA ... and the judgment dismissing [his] complaint ... is hereby vacated." Armstrong v USA, 03-Civ-4801 (NBM).To date, Judge Mukasey has been the only judge to comply with the plain language of a statute. Since this is a criminal case, the Rule of Lenity is suppose to apply. ‘The Government in arguing to this Court that it lacked the jurisdiction to Provide “credit” for the civil contempt pursuant to 18 USC §3585(b), violated Armstrong's Due Process Rights for it then (1) argued in Camden that S3584(a) controlled and that your silence should be read as consecutive. They succeeded in keeping the Court silent and then switched statutes to use that silence. This bait & switch was clever for this succeeded in creating arbitrary imprisonment under §3584(a) covering “multiple sentences of imprisonment” that are multiple convictions (Pub L. 98-473, Title TI, §212(a)(2), Oct 12, 1984, 98 State 2000). Additionally, the term "imprisonment" is defined by Congress as a criminal penalty 18 USC §4101(b), as is a "sentence" §4101(h) and this is further confirmed by 18 USC 83586 that states the “implementation of a sentence of imprisonment is governed by the provisions of subchapter C of chapter 229..." Indeed "imprisonment" means a criminal penalty and "detention" is non-criminal confinement, US v NoralesAlejo, 193 F3d 1102, 1105 (9th Cir 1999), Clearly, the Government misled Judge Bumb and any reliance upon §3584(a) would convert the civil contempt into criminal contempt necessitating the criminal conviction be vacated for the Supreme Court also made clear, "today [we] hold, that the protection of the Double Jeopardy Clause likewise attaches to contempt prosecu- tions." UD v Dixon, 509 US 688, 125 Led2d 556, 568 (1993), The Government CANNOT use §3584(a) to justify 12 years on a 5 year statute for that converts the civil contempt into a criminal penalty, though Judge Bumb did not decide the credit issue. While §3585(b) states that the BOP is to calculate the sentence and automatically epply the credit that is within the plain language of §3585(b), the Government has used that to overturn the entire Fourth Amendment illegal seizure. By arguing that Armstrong could not even then file a habeas corpus, they also violated the Fourth 9Amendment, for ANYTIME someone is to be detained, he MUST have a hearing which is to be prompt, pursuant to Gerstein v Pugh, 420 US 103 (1975). The Supreme Court the decided was is "prompt" within the Fourth Amendment prohibition against illegal seizures. That was held to be 48 hours in County of Riverside v McLaughlin, 500 US 44 (1991). The Supreme Court later clarified this holding regarding the Fourth Amendment. stating that in Gerstein; "ye held that the Fourth Amendment's shield against unreasonable seizures requires a prompt judicial determination of probable cause following an arrest made vithout a warrant ..." [In County of Riverside that Court held] "that 'prompt' generally means within 48 hours of the warrantless arrest, absent extraordinary circum- stances, a longer delay violates the Fourth Amendment." Powell v Nevada, 511 US 79, 80 (1994) In the instant case, there is no warrant, statute, or Judicial determination that the time spent in civil contempt is outside the plain language of §3585(b) when the contempt was included in the indicted and was imposed entirely post~indictment, for a restitution that was never owed and was part of the criminal sentence. The clear application of §3585(b) was unconstitutional. To comply with 18 USC §3621(a) the BOP cannot imprison someone beyond the sentence imposed, which was 5 years. They must produce a commitment order as proof of their authority to imprison a citizen as per §3621(c). They MUST have statutory authority exclusively from Congress under the Separation of Powers for not even a Judge can order someone to just be taken away without statutory authority. The BOP had to conduct the calculation within 48 hours and when it wanted to imprison Armstrong for another 5 years, he had to conduct a prompt Judicial hearing. It failed on both scores and thus it has imprisoned Armstrong under a UNCONSTITUTIONAL APPLICATION of §3585(b). The construction that has been applied allove for a minimum illegal seizure of a citizen for at least ONE YEAR because it took them about 6 months to calculate the sentence, and then they argued Armstrong was NOT ENTITLED to file a structural right to habeas corpus and had to exhaust administrative remedies contrary to §3626(g)(2). This amounts to a 10a warrantless arrest that is where the Executive simply locks-up people without any Due Process of Law whatsoever. The BOP then tries to claim that civil contempt can be imposed indefinitely by using the criminal contempt statute 18 USC §401 as contrasted to the civil contempt statute 28 USC §1826, which caps the terms of imprisonment at 18 months. This absurd interpretation found in Program Statement 5140.38 §7 claiming that the criminal contempt statute can be used for civil contempt has been squarely rejected by the Supreme Court: "[1]f a statute has criminal application, 'the rule of lenity applies! to the court's interpretation of the statute [blecause we must interpret the statute consistently, whether we encounter its application in a criminal of noncriminal context Clark v Martines, 543 US 371, 160 Led2d 734, 746 (2005) ‘The renown Circuit Judge Posner of the Seventh Circuit made it perfectly clear collecting all authorities that civil contempt is purely an equitable remedy, and it is NOT the inherent power of contempt, for that is restricted to criminal contempt that controls the behavior in a courtroom, not civil contempt. ""The power to punish for contempts is inherent in all courts,’ ... but this was caid with reference to criminal contempt. Rather than being deemed an inherent power of all courts, civil contempt ... originated like so many other devices operating on the person directly rather than on his assets, in equity, as a device enforcing compliance with equitable decrees. ... It is still an equity procedure, ... and its remedies, such as incarceration, are subject to equitable defenses. ..." Matter of Grand Jury Proc. Bmpanelled May 1988, 894 F2d 881, 884 (7th Cir 1989) Criminal contempt under 18 USC §401 is a misdemeanor, and the statute is just a revision of §17 of the Judiciary Act of 1789 authorizing criminal contempt, but the penalty was located in §9 maximum being 6 months. This is no different from the Drug laws were the offense is defined in one statute and the penalty in another. Merely because S401 fails to state any Limitation does not mean it can be construed to allow Life imprisonment. The Sentencing Guidelines lists contempt as a misdemeanor in S41. 42(c)(1). Disobeying a court order is a misdemeanor, 18 USC §1509, All such contempts are only misdemeanors that cannot exceed 6 months without trial by jury that was never provided, 18 USC 83559. Consequently, the BOP Program Statesment 5140.38 is patently unconsitutional. Congress prohibits the BOP from imprisoning anyone without statutory authority, 18 USC §4001(a)("No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress). This is also prohibited under the Separation of Powers that delegates ONLY to the people to create crimes and define penalties. When it was claimed that courts could make common law crimes as did the courts of England, that was rejected under our Constitution, US v Hudson & Goodwin, 11 US 32 (1812). Moreover, the Righth Amendment Cruel and Unusual Punishnent, Clause prohibits the imposition of any non-statutory penalty under the "[p]retence to a discretionary Power." Harmelin v Michigan, 501 US 957, 973-974 (1991). "Courts may not prescribe] greater punishment than the legislature intended." Rutledge v US, 517 US 292, 134 Led2d 419, 425-26 (1996). Since no judge could have ordered 12 years imprisonment on a 5 year statute, neither could the Executive. In fact, the BOP may not hold someone beyond their statutory maximum 18 USC §3621(a) nor without a court order §3621(c), and the BOP has cleverly avoided ever allowing Armstrong to even petition the court by habeas corpus, denied any right to be heard under the Fourth Amendment and Gerstein, and has acted arbitrarily in direct violation of their oath to defend the Constitution, no less S4001(a). ‘The BOP has stood the law on its head and done everything within its power to deny access to the courts, This lastest attempt to dismiss this simple request is indicative of the abuse of power. Denying the right to even file a habeas corpus or to ever explain why and how it has imprisoned Armstrong and refused to provide medical care as if this vere some third world country, is a international disgrace. The BOP has simply refused to provide credit even when the contempt was POST- INDICIMENT and was for the purpose to force a turnover for a future possible Criminal 12Restitution, that was part of the same criminal sentence. The Government admitted to Judge Oven that the contempt was presented to the Grand Jury and was included in the indictment as an obstruction of justice. Once that was dropped, they still have bee forum shopping between so many courts to ensure that no court will want to get involved fearing it might prejudice another, The Government has reduced the Judiciary to the sidelines. There is ABSOLUTELY no statutory authority to carve out any exception for civil contempt that is imposed POST-INDICIMENT under §3585(b)(2). ‘The Supreme Court has Continually varned the lower courts that they CANNOT read into statutes whatever they want to ensure that the Government always wins. When a "statute says nothing about the appropriate sentences within these brackets, and we decline to read any implicit directive into that congressional silence." Kimbrough v US, 532 US ~ , Slip at 14 (2007); citing: Jama v Inmigration & Customs Enforcement, 543 US 335, 341 (2005)(Mie do not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply..."). The Government has argued the Congress intended to exclude civil contempt, but just didn't bother to mention that. Yet once again, the Supreme Court has struck down the international application of statutes stating that if a statute DOES NOT expressly state it applies outside the USA, it does NOT, Morrison y National Australia Bank, 130 SCt 2869 (2010). Yet here, the Government went against the plain language of §3584(a), §3585(b), §3626(g)(2), and the Securities, Commodities, and Conspiracy statutes, refusing at any time to comply with the plain language of Congress. They MUST have a statute to deny the "credit" for the 7.5 years of contempt, yet they do not have one. All they have is a Program Statement that simply says they refuse to provide credit for civil contempt. However, "Program Statements are not entitled to Chevron deference." Strong v Schultz, 2009 WL 485287, p7 n.3 (DNJ 2009). Civil contempts that are not related are not under $3585(b)(1), and if they took place PRIOR to any indictment, are also not within 13,§3585(b)(2). Where a civil contempt had been imposed BEFORE indictment, there the court vacated the contempt for it was not appropriate to coerce an indicted defendant on the same allegations pending trial, Tankersley v Fisher, 2008 WL 275878 (ND Fla 2008). In the instant case, the contempt was imposed 4 months AFTER the criminal case began making it squarely within §3585(b)(2). NEVER has any other indicted defendant been subjected by the SEC post-indictment to civil contempt to compel the turnover of assets for a future criminal prosecution penalty of restitution. It is BLACK-LETTER-LAW that once a common law judiciary remedy is codified by Congress, the common law equitable remedy ceases to be available as per S16 of the Judiciary Act of 1789, "[Flederal common law applies '[uJntil the field has been made subject of comprehensive legislation ..." Milwaukee v Illinois, 451 US 304, 314 (1981). Once "Congress has enacted a new statute ... that fact makes all the differ~ ence." US v Billy Jo Lara, 541 US 193, 158 Led24 420, 433 (2004). Once Congress codified restitution as a criminal penalty, 18 USC $3663-64, there was no longer any equitable power in a parallel SEC proceeding to seek the same identical relief. “[W]here @ statute creates 2 right and provides a special remedy, that remedy is exclusive." US v Babcock, 250 US 328, 331 (1919), There could be no parallel equitable remedy seeking restitution or disgorgement, for once restitution was made @ criminal penalty, it was exclusive to this Court an none other. "[TJhe punishment or the renedy " Wilder Mfg Co_v Corn Products Co, 236 US 165, 174-75 (1915)(collecting cases). No doubt the Government will try to argue can be only that which the statute prescribes the contempt was for disgorement, not restitution, The ONLY equitable remedy in 1789 was restitution, All equitable remedies are confined to those known to have existed in 1789, Grupo Mexicano v Alliance Bond Fund, 527 US 308, 318-19 (1999). There was no separate remedy of disgorgement and the Supreme Court has already held that there is no difference between them for “Is]uch an action [for disgorgement] is a remedy only for restitution ~ a more Limited form of penalty than 4 civil fine." Tull v US, 481 US 412, 424 (1987), 14CONCLUSION Armstrong has merely sought that he be taken to the hospital for the BOP refuses to provide medical care that isa deliberate indifference if not a First Amendment Retaliation Claim. The BOP refuses to spend money on medical care putting the community and public health at risk in direct violation of the the Department of Health and Human Services, noteably the Centers for Disease Control and Prevention who if were aware of the BOP practices of Dr. Abigail de Lasalle at Fort Dix, would, most Likely, result in her termination if not violating the criminal law herself. The Government's argument that this is a habeas corpus is contrary to recent Supreme Court authority, and its claims of forum shopping are the direct result of arguing that there is never a right to access the courts no matter what the issue subordinating the Judiciary to the inconvienent pleasure of the Executive, Armstrong respectfully seeks relief by the Court ordering by Mandamus if it 80 desires statutory authority under 28 USC §1361 as a matter of public health, that Armstrong be taken to the hospital and be given a full check-up that should have been done from the outset after the attack when he was in New York. Respectfully submitted; Martin A. Armstrong Dated: __January 19th, 2011 #12518-050 Fort Dix, New Jersey FCI Fort Dix Camp PO Box 2000 Fort Dix, NJ 08640 15CERTIFICATE OF SERVICE {Martin A. Armstrong, hereby declare under penalty of perjury pursuant to 28 USC $1746, that a true and correct copy of this motion has been served upon the following parties hy first class mail postage prepaid. Andrew D. Goldstein, AUSA US Attorney Office One Saint Andrew's Plaza New York, NY 10007 Respectfully submitted; Martin A, Armstrong #12518-050 FCI Fort Dix Camp PO Box 2000 Fort Dix, NJ 08640 Dated: _ January 19th, 2011 Fort Dix, New Jersey