                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          JUL 1 1999
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


LEWIS THEODORE WACKER;
JOHN LEE WACKER; EDITH FAYE
WACKER,

          Plaintiffs-Appellants,

v.

SAM A. CROW, Judge; RONALD C.
NEWMAN, Magistrate Judge;
RANDALL RATHBUN, U.S.                                  No. 99-3071
Attorney; JACKIE N. WILLIAMS,                       (District of Kansas)
U.S. Attorney; GREGORY HOUGH,                     (D.C. No. 98-CV-3349)
U.S. Assistant Attorney; WILLIAM
HALVORSON, KBI Agent; RICKY
ATTEBERRY, DEA Agent; JEFFERY
BRANDAU, KBI Agent; JOHN AND
JANE DOES, Federal and Ellsworth
County, Barton County, Lincoln
County, Osborne County, Russell
County, Kansas Officers,

          Defendants-Appellees.




                             ORDER AND JUDGMENT *




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before TACHA, McKAY, and MURPHY, Circuit Judges.


      After examining Plaintiffs’ brief and the appellate record, this court has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

The case is therefore ordered submitted without oral argument.

      Proceeding pro se, Plaintiffs, each incarcerated in separate penal

institutions, brought a civil rights action seeking monetary damages in excess of

$5,000,000 payable in gold coin. Construed liberally, Plaintiffs’ complaint

ostensibly alleged several violations of their civil rights. Plaintiffs’ main claims

revolved around their allegation that the United States District Court for the

District of Kansas had no jurisdiction over Plaintiffs because the American flag

displayed in the federal courtroom was adorned with a yellow fringe. Plaintiffs

claimed the inclusion of the yellow fringe on the flag effectively commuted the

district court into a foreign power. Plaintiffs’ complaint also included a claim

that two of the defendants, a federal district judge and a federal magistrate judge,

engaged in constructive treason because they presided in a courtroom that

displayed the yellow-fringed flag. Although Plaintiffs’ complaint also provides

full or partial citations to a plethora of statutes, the remainder of the complaint is

indecipherable.

      The district court held that Plaintiffs’ complaint failed to state a claim upon

which relief may be granted and dismissed the complaint with prejudice. In its
Order, the district court adequately and coherently set forth the reasoning

underlying the dismissal. The district court denied Plaintiffs’ subsequent motion

for reconsideration.

       In their appellate brief, Plaintiffs purport to reassert the same allegations

first appearing in their complaint. In addition, Plaintiffs attempt to add a claim

that their Constitutional rights have been violated by the capitalization of their

names in court documents. The remainder of Plaintiffs’ appellate brief contains

pages of desultory verbiage that has no application to either their original

complaint or their appeal of its dismissal.

       Upon de novo review of Plaintiffs’ complaint, the district court’s Order,

and the entire record on appeal, this court concludes   that Plaintiffs’ appeal is

frivolous and malicious. Accordingly, this court dismisses Plaintiffs’ appeal

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).

       The district court’s dismissal of Plaintiffs’ complaint for failure to state a

claim counts as a “prior occasion” for purposes of 28 U.S.C. § 1915(g). Our

dismissal of Plaintiffs’ appeal also counts as a “prior occasion” for purposes of 28

U.S.C. § 1915(g).




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Plaintiffs’ appeal is DISMISSED.

                                     ENTERED FOR THE COURT:



                                     Per Curiam




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