Case 8:14-cv-00623-VMC-TBM Document 5 Filed 02/19/14 Page 1 of 6 PageID 45

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SCOTT ALLAN BENNETT,

PLAINTIFF

V. CASE NO.: C14-00440 NC

UNITED STATES DEPARTMENT OF JUSTICE, ET AL

DEFENDANT(S)

AMENDED GENERAL PLEADING:

PLAINTIFF’S 28 U.S.C. §2241 MOTION
CHALLENGING CONFINEMENT OF MILITARY OFFICER ON CONSTITUTIONAL
GROUNDS AND DEMANDING HABEAS CORPUS HEARING
______________________________________________________________________________

COMES NOW, Scott Allan Bennett, plaintiff, pro se, and files his AMENDED 28 U.S.C.

§2241 Motion Challenging Confinement of Military Officer on Constitutional Grounds and

Demanding a Habeas Corpus Hearing, for the following reasons:

1. The original version of this §2241 motion was handwritten. This new typed version

amends the original motion and abrogates it. The original exhibits remain the same.

2. Scott Allan Bennett is currently a United States 2LT Army Officer (Reserve, Active-

List Status) assigned to the 11th Psychological Operations, U.S. Civil Affairs-

Psychological Operations Command. See Exhibit D (part 2-4), and Exhibit 6-B, 6-C,

6-D.
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3. 2LT Bennett is being held in custody by the Department of Justice, Bureau of Prisons

(B.O.P.) at a Residential Reentry Center at 205 MacArthur Blvd., Oakland, CA

94610. This facility is controlled by GEO Services, a contractor under the B.O.P.

4. 2LT Scott Bennett was charged by the civilian Department of Justice for activities he

performed in uniform, on a military base, as a function of his military duty, as an

Officer of the United States Army. 2LT Bennett was prosecuted in a civilian court,

before a civilian jury, and not given any military defense counsel as he had requested.

5. The civilian charges were: 18 U.S.C. § 1001 (Making a false statement to a military

housing contractor on a military base, while in uniform, to facilitate his transfer to a

new base); 18 U.S.C. § 702 (wearing a military uniform without authority); and 50

U.S.C. § 797(a)(1) (violating a defense property security regulation). See Exhibit 2,

page 3.

6. Bennett’s sentencing guideline range was 1-7 months, but he was instead given an

“enhancement” increasing his range, and giving him a term of thirty-six (36) months

imprisonment. This is being appealed as a violation of the Supreme Court’s ruling in

Alleyne vs. U.S., 4th Cir (2013) ) which held:

“Because mandatory minimum sentences increase the penalty for a crime, any fact that

increases the mandatory minimum is an “element” of the crime that must be submitted to

the jury.”

7. These charges are currently on Appeal as a violation of military jurisdiction,

prosecutorial misconduct, violation of Posse Comitatus act, ineffective assistance of

counsel, and other constitutional violations against Bennett. See Exhibit 2, page 3.

8. The military has conducted a “Military Board of Officers” hearing on this matter and

determined 2LT Bennett was never charged with a crime by the military, nor was he

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discharged, or reprimanded. In fact not a single piece of evidence of any misconduct

was ever presented to the Military Board. Yet he remains incarcerated by the Justice

Department through their unconstitutional application of a civilian statute to a

military officer making his military activities a crime. 2LT Bennett has contacted the

Judge Advocate General to challenge jurisdiction of all civilian charges and court

jurisdiction over this matter. See Exhibit 5.

9. The Department of Justice, a civilian Administrative Agency of the Executive

Branch, instead charged, prosecuted, and incarcerated 2LT Bennett, which violated

2LT Bennett’s rights as a military officer, his right to military immunity, as well as

his right to military administrative and legal representation, and his Constitutional

Right of Due Process.

10. This action against a military officer creates new law and establishes a precedent

which can be used to prosecuted other service members for actions performed as a

function of their duty, in uniform, and on a military base. This precedent also

threatens every military service member who wears his uniform upon returning from

duty and reuniting with his family by surprising his children at school, visiting his

mother in hospital, and a host of other “unofficial” activities the military not only

allows, but strongly encourages.

11. This action also violates 19 U.S.C. § 1385 (Posse Comitatus Act) prohibiting military

assumption of police power over U.S. citizens without Presidential approval. See

Exhibit 2, page 2.

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CONCLUSION

12. Plaintiff requests this Honorable Court find that subject matter jurisdiction of 2LT

Bennett’s charges belong to the military, and not to the civilian court or Department

of Justice.

13. Plaintiff requests this Court follow the recent precedent established in U.S. v.

Wilfredo Santiago, 2013 (Southern District Court of New York), which prohibited

prosecution of a military service member in a civilian court for military duties, in

accordance with past Supreme Court rulings.

14. Plaintiff requests this Court rule that since 2LT Bennett was, and remains to this day,

a military officer, and since the military 1) has jurisdiction over its own matters, 2)

declined to charge 2LT Bennett with a crime, and 3) never claimed his activities

constituted any kind of misconduct or actions unbecoming an officer, the civilian

court cannot use civilian statutes to translate military activities into a civilian crime

and thereby prosecute 2LT Bennett for said activities.

15. Plaintiff requests this Court rule in accordance with U.S. v. Wilfredo Santiago and

uphold the constitutional rule of military jurisdiction separate from civilian, and

affirm that because civilian courts are not trained in military law, customs, policies,

regulations, and traditions, they are constitutionally barred from opining on them.

16. Plaintiff requests that this Court order that 2LT Bennett be immediately released from

all control and custody of the Bureau of Prisons, and the U.S. Probation Office, so

that he may interface with Congressional and military Judge Advocate General

agencies involved in this matter, and travel to Washington DC if required.

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17. 2LT Bennett has served over thirty (30) months in a minimum security camp while

engaged in the appeal process of his case, and now served over twenty (20) days in a

half-way house. He has had no visits from anyone, including his family, since he was

remanded at trial in July 2011. See exhibit 1.

18. Plaintiff was eligible for Home Confinement as of January 18, 2014, but has, for

some unknown reason, been held against his will in a Residential Reentry Center by

the B.O.P. contractor, GEO Services Half-way House, which is in violation of the

original recommendation of the B.O.P. This may represent contractor fraud.

19. In the alternative, Plaintiff requests this court order him to be immediately released

from the Residential Reentry Center (GEO Services Half-way House) and ordered to

“Home Confinement” in order to allow him to facilitate his ongoing Appeal.

20. Due to the Top Secret/Sensitive Compartmentalized Information military matters, and

since 2LT Bennett is still a military officer, and has come from a “Camp”, the

RRC/Half-way house is not 1) conducive to 2LT Bennett’s legal needs; and 2) not a

safe environment, due to certain “prejudices” against military members—especially

those who have worked in counterterrorism, as 2LT Bennett did for three years at the

highest levels of government and the intelligence community (State Department

Coordinator for Counterterrorism, U.S. Special Operations Command, and U.S.

Central Command).

21. 2LT Bennett has been advised by GEO Services (B.O.P.) that they will not allow him

to return to San Francisco District Court while in custody, nor will they allow him to

perform his necessary legal work or military related work while at the Half-way

House. Therefore 2LT Scott Bennett requests this Honorable Court to intervene.

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22. 2LT Bennett requests an oral hearing before this court on this instant motion and

pleading, and requests from the court any and all relief it deems fair in this matter.

WHEREFORE, it is respectfully requested that this Honorable Court rule 2LT

Bennett’s incarceration a constitutional violation under §2241, and order 2LT Bennett to

be immediately released from B.O.P. and U.S. Office of Probation Custody; or in the

alternative ordered immediately released from confinement at the GEO Services

Residential Reentry Center at 205 MacArthur, Oakland, CA 94610, and sent to “Home

Confinement” and allowed to prepare his legal military appeal work and travel as

necessary.

Respectfully submitted,

____________________

Scott Bennett, Plaintiff, Pro Se

Fed No.: 29418-016

205 MacArthur Blvd, Oakland, CA 94610

CERTIFICATE OF SERVICE

I hereby certify that a copy of this Amended Pleading of Plaintiff’s 29 U.S.C.

§2241 Motion Challenging Confinement of a Military Officer on Constitutional Grounds and
Demanding a Habeas Corpus Hearing, was filed with the San Francisco District Court Clerk on
this 12 day of February, 2014.

__________________________
Scott Bennett

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Case 8:14-cv-00623-VMC-TBM Document 5-1 Filed 02/19/14 Page 1 of 1 PageID 51

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SCOTT ALLAN BENNETT,

PLAINTIFF

V. CASE NO.: C14-00440 NC

UNITED STATES DEPARTMENT OF JUSTICE, ET AL

DEFENDANT(S)

ORDER

UPON CONSIDERATION, and it appearing to the court that good cause is shown why

Plaintiff’s AMENDED 28 U.S.C. §2241 Motion Challenging Confinement of Military Officer on

Constitutional Grounds and Demanding a Habeas Corpus Hearing should be granted, it is hereby

on this _____ day of ______, 2014, ordered that the Plaintiff’s motion is GRANTED; and it is

further,

ORDERED, that Plaintiff is immediately released from custody of the Department of

Justice, Bureau of Prisons, Office of Probation, and GEO Services; and

ORDERED, that Plaintiff be allowed to engage in all legal work and travel associated

with the military and his case;

ORDERED, any and all relief granted to Plaintiff as this court deems fair.

____________________________
JUDGE, U.S. DISTRICT COURT
cc: Scott Bennett, plaintiff

U.S. Department of Justice, Bureau of Prisons

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