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Case: 09-5080 Document: 1226668 Filed: 01/21/2010 Page: 1

No 09-5080
Consolidating No. 09-5161

IN THE UNITED STATES COURT OF APPEALS


FOR THE DISTRICT OF COLUMBIA CIRCUIT

GREGORY S. HOLLISTER, Case Below 08-2254 JR

Appellant,

v.

Barry Soetoro, in his capacity as a natural


person; de facto President in posse; and as
de jure President in posse , also known as
Barack Obama, et al.

Appellees.

APPELLANTS’ REPLY TO THE OPPOSITION TO THEIR


MOTION TO TAKE JUDICIAL NOTICE OF
HAWAIIAN TERRITORIAL STATUTES

The appellees oppose our motion to take judicial notice of the

Hawaiian territorial statute on vital statistics as in effect in the state in the

early 1960’s principally on grounds of relevance. They cite three cases as

the authority to support their contention of an irrelevance. An examination

of those three cases shows that they themselves are not relevant to the

inquiry that would be in order under the motion as filed.

In examining the contentions of irrelevance advanced by the appellees

and the case authority that they cite it is important to keep in mind that the

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dismissal below was a dismissal under Rule 12(b)(6) for failure to state a

claim. The appellees themselves have acknowledged that in considering

whether a dismissal under Rule 12(b)(6) is in order all of the factual

allegations of the plaintiff must be taken as true and inferences must be

drawn in the plaintiff’s favor. Here the complaint contains substantial

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

allegations of the complaint that the appellee Soetoro/Obama is not a natural

born citizen as that term is used in Article II, Section 1, Clause 5 of the

Constitution to establish the eligibility of a President to be de jure and not

just de facto.

The territorial statutes are relevant because, as stated in our motion,

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

birth outside of Hawaii was attended by a foreign doctor in a hospital outside

of Hawaii. In such a situation as is alleged in the complaint, the birth couild

have been reported, according to the territorial act by an interested person or

relative through an informal supplying of information and the child could

still have obtained a Hawaii birth certificate. Further the territorial statue is

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relevant because it shows that such a document, even were the original

shown, would not be court evidence without being subjected to inspection

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

complaint in this case.

The opposition to our motion cites the case of Larson v. Dep’t of

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

notice…because those articles are irrelevant to our inquiry; taking notice of

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

government agency under the Freedom of Information Act (FOIA) 5

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

the requested information falls under one or more of those exemptions so

that the agency need not release the information as being within those one or

more exemptions. Under FOIA practice the agency establishes its

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entitlement to the exemption or exemptions by filing an affidavit about the

information requested. There is no comparable practice and procedure with

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.

Exemption 1 allows non-disclosure of information when there is an

Executive Order which, in the name of national security or foreign policy

creates a danger that revealing the information will harm either national

security or foreign policy. Exemption 3 is for where there is a statute that

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

to such things as compromising our intelligence capabilities and assets if it

were even revealed whether the Department of State had relevant documents

(The so-called Glomar response). There is nothing comparable to those

kind of issues in this case. In Larson, after several pages of lengthy

discussion of these intelligence and security issues with regard to anti-

communist struggles in Guatemala during the days of the U.S.S.R., at the

very end of the case, after an additional discussion in the lower court in that

case of the court’s discretion in deciding not to conduct an in camera review

of some of the documents that were at issue, the court, almost as a

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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

numerous documents and items of information that were at issue. Thus, it

can be seen that the holding in the Larson case did not involve statutes and

concerned issues that have no relevance to this case at all. It is an irrelevant

citation with regard to this case. It does not involve legislative enactments

and facts relating to allegations in a complaint dismissed for failure to state a

claim under 12(b)(6) in any way.

In conjunction with the Larson case in their opposition (p.2) the

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

parenthetically note that their assertion concerning its relevance is that it is a

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

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complaint made assertions that were not taken as true or that were not

inferred in favor of the plaintiff.

Instead, the Trans-Stirling case concerns motions made at the

appellate level under Federal Rule of Appellate Procedure 28j, which is the

rule that provides for introducing by letter supplemental authority during

appellate proceedings. The 9th Circuit found that the device was being used

to attempt to “backdoor” new factual evidence into the record. As an

afterthought the 9th Circuit found that considered alternatively as a request

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

found was not explained. To understand it at all it is necessary to examine

the factual background of the case.

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

the plaintiffs, including the Trans-Stirling company, under color and

authority of state law, Nevada, in that case. Trans-Stirling owned, among

other assets, a hotel-gambling casino in Las Vegas. There Casino had

undergone an investigation and prosecution by the Nevada Gaming

Commission and Board, state bodies which oversee and regulate the

gambling industry in Nevada. The investigation and charges concerned

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alleged “skimming” of funds from the casino in question which was owned

by Trans-Stirling. As a result of that investigation and prosecution Trans-

Stirling arrived at a settlement of the charges under which it agreed to sell

the properties in question as part of the settlement, pay a fine and take other

measures. Subsequently, Trans-Stirling had second thoughts about the

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

prosecutorial power, including charges of bias and pre-judgment of the case.

The district court granted summary judgment to the defendants and against

Trans-Stirling and Trans-/Stirling appealed to the 9th Circuit. Thus, in that

case it was not a situation of treating allegations in the complaint as true.

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

prosecutors, who had been also investigating Trans-Stirling, had voluntarily

dismissed certain charges against Trans-Stirling. The 9th Circuit did not set

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out what those federal charges that were dropped were but simply held that,

considered alternatively as the objects of a request for judicial notice, they

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

state investigation and unspecified charges dropped by federal criminal

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

meaning of the constitutional requirement.

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

notice of regulations that were irrelevant.” An examination of the Byrnes

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

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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

certain regulations applying to one species of swan which, because of their

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

the regulations requiring registration. The argument that the defendant

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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.

As we have pointed out the Hawaii territorial statute in question is

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.

Thus, the pattern of inapplicable references continues.

Respectfully submitted,

/s/

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John D. Hemenway
Counsel for Appellants
4816 Rodman Street, NW
Washington, DC 20016
(202) 244-2819
(202) 538-0005

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I have caused the foregoing to be served


electronically upon counsel of record this 21st day of January, 2010.

/s/

_______________________
John D. Hemenway

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