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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA, 

vs. Case No. 4:89cr4006-WS

KENNETH GASTON, 

Defendant. 

 /

REPORT AND RECOMMENDATION

Defendant submitted a pleading titled:

Verified Notice of 

Acceptance for Value, Consideration and Honor 

Return for Value and Performance

Requests for Full Post Settlement and Closure 

Or Alternative Remedy

by Special Visitation

Doc. 761. He also filed two "Affidavit[s] of Mailing" with various attachments. Docs. 762

and 763. 

Defendant names himself as "'Kenneth Bernard; Gaston (c) 1979, All Rights

Reserved,' Secured Party," and names as Respondents the former United States

Attorney for this District, Michael Patterson, and Assistant United States Attorney

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Case No. 4:89cr4006-WS

Michael Simpson. Doc. 761, p. 1. Defendant submits, inter alia, his Uniform

Commercial Code (UCC) Financing Statement, Public Notice, an affidavit, his Notice

Declaration & Certificate of Sovereign Status, Formal Sovereign Oath of Renunciation,

Copyright Notice, and Power of Attorney in Fact. Doc. 761, Ex. A (composite). 

Defendant signs:

I Am.

 Kenneth Bernard; Gaston (c) 1979, All Rights Reserved, the living,

breathing, sentient Gensman known by the appellation "Kenneth Bernard;

Gaston (c) 1979, All Rights Reserved," Secured Party, Third Party

Intervener and Authorized Representative. 

Doc. 761, p. 9; doc. 762, p. 3; doc. 763, p. 2. 

Defendant asserts that the failure to return the cancellation of debt (COD) will be

taken as a dishonor, and a certificate of non-response or dishonor may be issued and

used as evidence. Doc. 761, p. 3. Defendant claims that in the event of dishonor,

Respondents thereby agree to a number of things, including Defendant's release by the

court. Id., pp. 3-7. Defendant claims he received a certificate of non-response or

dishonor. Doc. 762, attachment. Defendant submits a proposed order releasing him,

and an alternative proposed order directing the Government to show cause why it

should not be held in contempt and a tort claim should not issue. Doc. 763,

attachments. 

The court is unable to find a dictionary definition of the word "gensman;"

Petitioner presumably means gens man:

gens (jenz), n. [Latin] Roman Law. A clan or group of families who share

the same name and (supposedly) a common ancestor; extended family. 

Members of a gens are freeborn and possess full civic rights.

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 A copy of this and another unpublished case cited ahead will be attached to the

paper copy of this recommendation mailed to Defendant. 

Case No. 4:89cr4006-WS

Black's Law Dictionary (8th ed. 2004). A Westlaw search of all state and federal cases

uncovered only one use of Gens man or Gensman as a word (rather than a name), in

an unpublished case out of the Eastern District of Pennsylvania. United States v.

Ramos, Unpublished, 2004 WL 356412 (E.D. Pa. 2004).1 Some of the language used

by the pro se defendant there is remarkably similar to language used in this case. He

submitted an "Affidavit of the Living Breathing Gensman by Special Visitation," asserting

lack of jurisdiction because he was not a United States citizen but lived in "his own

skin;" made claims under the Uniform Commercial Code and other commercial statutes

and requested surety; filed "notices" of "dishonor;" and many claims "were purportedly

written by Defendant as an appointed representative for an entity named Mario G.

Ramos © 1982, a distinction also alleged to have legal significance." At pp. *1-2 and n.

5. The court found "nothing in this case involves or is governed by the provisions of the

Uniform Commercial Code or any other commercial statute or agreement, that surety is

not required in a federal criminal case, and that the remainder of Defendant's

allegations are equally meritless." Id., at *2. 

The UCC is inapplicable to criminal proceedings. United States v. Humphrey,

287 F.3d 422, 435 (6th Cir. 2002); overruled on other grounds, United States v.

Leachman, 309 F.3d 377 (6th Cir. 2002). See also United States v. Partida-Parra, 859

F.2d 629, 634 (9th Cir. 1998) ("formation of binding plea agreements is governed not by

the Uniform Commercial Code, but by the Federal Rules of Criminal Procedure . . . .);

Van Hazel v. Luoma, 2005 WL 2837356, slip opinion at *2 (E.D. Mich. October 27,

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Case No. 4:89cr4006-WS

2005) ("Petitioner cannot divest the State of Michigan of jurisdiction to prosecute him of

a criminal offense simply by declaring a security interest in himself pursuant to the

Uniform Commercial Code or having another person do so.") (collecting cases); United

States v. Ramirez, 291 F.Supp.2d 266, 268 (S.D. NY 2003). 

In Ramirez, a prisoner filed UCC liens against the federal judge who presided

over his criminal trial and the Assistant United States Attorney who prosecuted the

case. 291 F.Supp.2d at 267-268. The Government sought declaratory judgment and

injunctive relief voiding the liens and enjoining future attempts to create liens against the

judge or prosecutor. Id., at 268. "While the filing of a Financing Statement perfects a

security interest, a Financing Statement alone cannot create a valid security interest." 

Id. (citations omitted). Mr. Ramirez claimed a security interest derived from an

agreement, "which allegedly is 'self-executing' in that any party who uses his name – in

which he alleges to hold a common law copyright – 'consents' to become a debtor to

Ramirez under the draconian terms of the agreement." Id. He claimed this was violated

by the judge and prosecutor when they used his name during the criminal proceeding. 

Id. The court found "[t]his agreement lacks all of the basic necessities of a valid

contract, such as mutual consent and bargained for consideration," Id. Further, "the

system of common law copyright was substantially preempted by the Copyright Act of

1976. Moreover, a name is not a proper subject for copyright." Id. (citations and

footnote omitted). The liens were found "entirely without merit and were filed with the

intent to interfere with the enforcement of the criminal laws of the United States." Id. 

To the extent Defendant could be "claiming the right to be released upon the

ground that the sentence was imposed in violation of the Constitution or laws of the

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 The recommendation, addressing Defendant's motion to correct illegal sentence

purportedly pursuant to former Fed.R.Civ.P. 35, also noted that the Eleventh Circuit had

denied Defendant's application for authorization to file a second or successive motion. 

Doc. 745, p. 2, referencing doc. 737. 

Case No. 4:89cr4006-WS

United States, or that the court was without jurisdiction to impose such sentence, or that

the sentence was in excess of the maximum authorized by law, or is otherwise subject

to collateral attack," his remedy is under the plain language of 28 U.S.C. § 2255. 

Defendant was previously denied § 2255 relief and his remedy, if any, is by filing a

second or successive § 2255 motion with authorization from the court of appeals. Doc.

745, pp. 2-3 (report and recommendation, incorporated herein by reference, as adopted

by the court in doc. 748).2

Defendant's claims are not at all clear, but to the extent they could be construed

as seeking some kind of damages or injunctive relief against the individuals involved in

his criminal case, Defendant is in custody and a civil suit which necessarily implies the

invalidity of his confinement is not cognizable unless and until relief from the conviction

is granted. See Nelson v. Campbell, 541 U.S. 637, 646-647, 124 S.Ct. 2117, 2124,

158 L.Ed.2d 924 (2004) (discussing the "favorable termination" requirement of Heck v.

Humphrey, 512 U.S. 477 and its progeny) (other citations omitted); Abella v. Rubino, 63

F.3d 1063, 1065-66 (11th Cir. 1995) (applying Heck rationale to civil rights claim

brought by federal inmate who had not obtained § 2255 relief). 

Further, this court should not construe these filings as seeking anything other

than relief in the criminal case, given Defendant's failure to file an in forma pauperis

application or pay the $ 250.00 filing fee. See 28 U.S.C. § 1914(a) (the fee for

instituting any civil action or proceeding is $250.00, except that the fee for filing an

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Case No. 4:89cr4006-WS

application for writ of habeas corpus is $5.00). Should Defendant wish to file suit and

proceed in forma pauperis, he would be subject to the Prison Litigation Reform Act

(PLRA). Under the PLRA, even if leave to proceed in forma pauperis is granted the

court may still access a partial filing fee, and Defendant would be required to pay back

the entire fee of $250.00 in monthly installments. 28 U.S.C. § 1915(b)(1), (2). The

court would also have the authority to dismiss the case if it found the allegation of

poverty untrue, that the action was frivolous or malicious, or failed to state a claim upon

which relief may be granted, or sought monetary relief against a defendant with

immunity. 28 U.S.C. § 1915(e)(2). Following three such dismissals or "strikes," a

prisoner is precluded from proceeding in forma pauperis absent allegations of "imminent

danger of serious physical injury." 28 U.S.C. § 1915(g). 

For the foregoing reasons, it is clear that Defendant is not entitled to any relief in

his criminal case. It is therefore respectfully RECOMMENDED that the various notices

(docs. 761-763) be SUMMARILY DISMISSED.

IN CHAMBERS at Tallahassee, Florida, on March 3, 2006.

 S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10 days after

being served with a copy thereof. Failure to file specific objections limits the scope of

review of proposed factual findings and recommendations.

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