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LIBERTY
YOUR RIGHT TO MAKE A LIVING

Copyright © 2008, Jim Carter 

 

PART 4: MOTION TO DISMISS INCOME TAX INDICTMENT

(updated version)

 

 

HEADNOTE:

 

MTD written for a IRC #7202 charge (adaptable to other charges) on the grounds no crime is alleged.  Has over 90 cases of  26 USC #720x convictions other than income tax; i.e., 720x does not identify an income tax violation.   Sansone v United States, 380 US 343 declares #720x does not identify an income tax violation.    Salted with 5th. Circuit appellate cases for easy research.   Requests the court to declare FRCrP 7(c)(3) is unconstitutional and void.

 

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After reading the first three Parts of LIBERTY --- YOUR RIGHT TO MAKE A LIVING, interested individuals have inquired how such a defense could be presented to the court. A student of criminal law, familiar with writing and serving motions, might study FEDERAL PROCEDURAL FORMS, LAWYER’S EDITION by Lawyers Cooperative Publishing {KF 8836, F4}. Volume 7 on Criminal Procedure includes §20:212 Defects in the Indictment or Information, §20:217 is Failure to Charge Offense. Volume 9 includes §22:801 regarding citation of laws, §22:927 Defects in the Indictment, and §22:938 Failure to Charge Offense. [Also see volume 27 Federal Procedure, Lawyers Edition, ## 62.487 to 62.503,  KF 8835  F43]  Conviction of a crime by an indictment that does not charge an offense can be challenged even after completion of sentence. See the above. Presentation forms are described in West Federal Forms, volume 5 {KF8836 W4}. §7302 is titled Motion by Defendant to Dismiss Indictment. §7308 has a motion for failure to state a crime. Moore’s Federal Practice (KF8820 A313 M63 Third Edition) #607.04 and 612.04 are current and excellent.

 

Any motion must be adapted to the individual case. The following motion was written for a well-known Fifth Circuit post-trial, pre-sentence, 26 USC §7202 conviction Docket entry numbers are for that case and documents were available on the internet In keeping with the venue, the motion is salted with Fifth Circuit appellate cases for easy research by digest codes.  Adverse court rulings always generate improvements to the motion. (Counsel for the involved defendant declined to file this motion, which has been further expanded.)

 

It is the government that is breaking the law and the perfidy is becoming more obvious.  If the occasion to pursue a livelihood is a suitable object for taxation, the U.S. citizen has become a slave of the government; i.e., the constitution has become an instrument of oppression.

 

There are two underlying legal threads mandated by due process that form the basis of the motion.  One, the indictment does not aver a constitutionally required statutory known legal duty; i.e., a crime. Two, the burden of proof must be upon the government ANY MODIFICATION BY THE DEFENDANT TO CLAIM HE IS NOT RESPONSIBLE FOR A TAX ALLOWS THE COURT TO REVERSE THE BURDEN OF PROOF AND WILL DEFEAT THE ENTIRE MOTION. The challenge is to the indictment, not to the unidentified tax.

 

Any effort by a defendant to contend the government has acted fraudulently or that section 1 or 6001 or 6011 or 861 or SSN or whatever imposes responsibility for an income tax has opened the door for the court to presume the defendant has accepted the burden of proof, and the court’s standard of proof is far beyond a reasonable doubt; i.e., there must be NO way the tax MIGHT be valid.  The effort is self-defeating; this burden of proof is impossible to meet. The court will declare the defendant’s position is frivolous (read ‘impossible to prove’ ) and deny the motion.

 

There may be an inclination to claim the court made a “presumption” in the reading of the indictment or in the mental analysis by the court. Such an approach would remove the focus of attention from the indictment to a nebulous, arguable issue of procedure.  It requires the defendant to prove the presumption occurred The defendant is assured of loss. Due Process requires a clear and unequivocal imposition of a tax.

 

Federal Rule of Criminal Procedure 7 (c)(3) providing an indictment that does not contain a statute averred to be violated need not be grounds to invalidate the indictment is challenged as unconstitutional. The cases relied upon by the Congressional committee to support the new rule are analyzed to be misrepresented.

 

WARNING !!!  Challenges to the validity of the indictment have been presented to the courts for many years as any lawyer will inform you.  The courts have consistently denied the challenges and have even imposed personal sanctions/incarcerated lawyers who have presented them. The DOJ/IRS is fully aware that if they are required to identify a law that imposes an income tax on an individual, AND TO CARRY THE BURDEN OF PROOF THAT IT IS A VALID (not merely legislated) TAX against a challenge that it is an improper infringement on the constitutional right of a citizen to pursue a livelihood secured within the ambit of Liberty, the income tax is finished.  The Mafia does not lightly suffer protests from patsies.

 

 

{court caption}

MOTION TO DISMISS THE INDICTMENT

FOR FAILURE TO CHARGE AN OFFENSE

 

The defendant moves this court to dismiss the indictment for failure to charge an offense on the following grounds:

 

1)  It is expressly requested the court declare the Federal Rule of Criminal Procedure 7 (c)(3)  provision that  “a citation’s omission is (not) a ground to dismiss the indictment or information or to reverse a conviction.” to be repugnant to the constitution and consequently null and void.

 

2)  The failure to allege a known legal duty the defendant has violated does not present a “case” over which the court can exercise jurisdiction.

 

3)  The failure to identify a known legal duty the defendant has violated is not in accord with Due Process requirements of the Fifth Amendment.

 

4)  The failure to identify a known legal duty the defendant has violated is not in accord with the mandate of the Sixth Amendment “to be informed of the nature and cause of the accusation” of a crime.

 

5)  The constructive amendment to the indictment by evidence permitted and denied by the court during trial is a further violation of the Fifth Amendment guarantee to be tried only on charges presented by a grand jury. [Supportive facts and analysis are eliminated for this exercise]

 

Signed (In Propria Persona), dated, served

 

 

 

{court caption}

MEMORANDUM IN SUPPORT OF

MOTION TO DISMISS THE INDICTMENT

FOR FAILURE TO CHARGE AN OFFENSE

 

Upon review of the superseding Indictment filed December 17, 2003 (Docket No. 221) in accordance with FRCrP 12 (b)(2), the defendant moves this court to dismiss the superseding Indictment for failure to charge an offense.  “ It is well settled that (even) the entry of a guilty plea does not act as a waiver of jurisdictional defects such as an indictment’s failure to charge an offense and the defendant may raise such failure at ANY time (even by habeas corpus or by corum nobis).” US v White, 258 F3d 374, 379 (5th Cir 2001); Bowen v Johnston, 306 US 19, 24; Machibroda v US, 368 US 487; Kaufman v US, 394 US 217, 222; Moore v Dempsey, 261 US 86; Patton v US, 281 US 276.  Emphasis in original, quotes and citations omitted. A jurisdictional defect can never be waived. Freytag v CIR, 501 US 868, 896.

“However late this objection (for want of jurisdiction) has been made, or may be made in any cause, in an inferior or appellate court of the United States, it must be considered and decided, before any court can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction. Jurisdiction is the power to hear and determine the subject matter in controversy between parties to a suit, to adjudicate or exercise any judicial power over them; the question is, whether on the case before a court, their action is judicial or extra-judicial; with or without the authority of law, to render a judgment or decree upon the rights of the litigant parties.  If the law confers the power to render a judgment or decree, then the court has jurisdiction; what shall be adjudged or decreed between the parties, and with which is the right of the case, is judicial action, by hearing and determining it.”  State of Rhode Island v State of Massachusetts,  37 US 657, 718 (1838). citations omitted; US v Osiemi, 980 F2d 344   Without jurisdiction, all orders are void (not merely voidable) and fines, penalties, restitution, etc., are refundable.

In ruling on a question of jurisdiction, the Supreme Court declared: “The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution.”  Cohens v Virginia, 19 US 264, 404 (1821).

 

The party asserting the federal court has jurisdiction has the burden of proving it.  FW/PBS v Dallas, 493 US 215.

 

The defendant has been found guilty of violations related to withholding of various taxes from employees and failure to turn over and account for such taxes to the federal government Where in the indictment is he charged with these crimes and been confronted with the statutory lawful duties that he has been convicted of violating?

 

It is observed paragraphs 1, 2, and 3 of the initial indictment (Docket #1) declare employers/persons are required/ responsible for doing certain described acts; i.e., pay/collect/account for FICA, income taxes, Medicare taxes, etc.  The second superseding indictment (Docket # 221) claims “The Internal Revenue Code requires employers to pay… and… withhold FICA, Medicare, and income taxes” in paragraphs 1 and 2. These are self-serving conclusions of law. Where in “The Internal Revenue Code” are these statutory requirements identified?  The indictment has no answer.

 

Nowhere is there any statutory authority offered in support for the legal conclusions that the defendant has a requirement to collect taxes from employees or to pay any money to the federal government. It is beyond comprehension to believe the prosecution would rely upon nebulous conclusions of law such as this.   This court is aware legal conclusions do not have standing even in civil cases.   “Conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.”  Fernandez-Montes v Allied Pilots Ass’n, 987 F2d 278, 284 (5th. Cir. 1993); Ryan v Scoggin, 245 F2d 54; Blackburn v Fisk Univ, 443 F2d 121; Pauling v McElroy, 278 F2d 252; Atlanta Gas Light v Southern Natural Gas, 338 FSup 1039;  Columbia v Tatum, 58 F3d 1101; Wag-Aero v US, 837 FSup 1479, affm. 35 F3d 569;  Sogevalor v Penn Central, 771 FSup 890, 893.  Criminal cases are held to a much higher standard than civil actions  Speiser v Randall, 357 US 513, 525. These paragraphs should have been stricken from the indictment. Isbrandtsen-Moller v US, 300 US 1139.

 

The prosecutor has acknowledged that a criminal case requires the defendant be proven to have violated a “known legal duty.”   Ref. Prosecutor’s Brief filed on or about July 14, 2003 (docket #49) citing United States v. Pomponio, 429 US 10 and Cheek v US, 498 US 192. The prosecutor is clearly mistaken if it is contended that paragraphs 1, 2, or 3 identify any statutory duty imposed upon the defendant.  The defendant does not have to search through Title 26 and assume some statute imposes a duty upon him; the government is required to confront the defendant with the legal duty and to carry the burden of proof of a lawful duty. Cole v Arkansas, 333 US 196. The burden of proof must be on the party levying the tax to comply with due process. Speiser v Randall, 357 US 513, 529 (1958); First Unitarian Church v Los Angeles, 357 US 545. It is the responsibility of government to prove the existence of a tax; a citizen is not required to prove the nonexistence of a tax.  Spreckles Sugar v McClain, 192 US 397. "…the taxpayer must be liable for the tax. Tax liability is a condition precedent to the demand. Merely demanding payment, even repeatedly, does not cause liability.”  Terry v. Bothke, 713 F.2d 1405, at 1414 (1983).

Self-serving conclusions of law do not suffice nor do they have any status in criminal prosecutions.

 

The violation of a “known legal duty” is synonymous with a “criminal offense.” Clarification of what must be conveyed in a “known legal duty” can be observed in adjudication of void for vagueness cases Endless citations can be given where the court has related a “penal statute (must) define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v Lawson, 461 US 352, 357 (emphasis added); Grayned v Rockford, 408 US 104; US v Tidwell, 191 F3d 976; US v Harris, 185 F3d 999.  The Kolender court continues: “Although the (vagueness) doctrine focuses both on actual notice to citizens and arbitrary enforcement, we have recognized recently that the more important aspect of the vagueness doctrine is not actual notice, but the other principal element of the doctrine---the requirement that a legislature establish minimal guidelines ( i.e., criminal statutes) to govern law enforcement.  Where the legislature fails to provide such minimal guidelines, a criminal statute may permit a standardless sweep that allows policemen, prosecutors, and juries (and the IRS) to pursue their personal predilections (which is not acceptable).” id 358, citations and internal quotes omitted, emphasis added. And again; “It is impermissible to define a criminal offense so vaguely that an ordinary person is left guessing about what is prohibited and what is not.“  Free Speech v Janet Reno, 198 F3d 1083, 1095.  The cases repeatedly declare a statute must impose and clearly identify the required known legal duty In the instant case the prosecutor declines to convey the mystical statute known only in his imagination.

 

The courts have additionally declared that criminal provisions must be held to higher standards of clarity than economic provisions.  Woodis v West Arkansas Comm. College, 160 F3d 435.  Where in the indictment do we find a statute ---in any degree of clarity---identifying what action on the part of the defendant compels him to forfeit the earnings from the sweat of his brow to the government or face incarceration? Or the requirement that calculations and payments of value pursuant to social security taxes, employment taxes, or income tax provisions are required of a citizen or risk a loss of liberty?  Or where is the constitutional authorization for such fiscal demands?  The search has been diligent but has been unsuccessful; there is none in the indictment.  The required statute is not merely vague---it is not visible

 

Paragraphs 3 and 4 of the superseding indictment do not identify any statutory duty imposed upon the defendant.

 

Paragraphs 5 through 16 contain factual allegations about the defendant’s actions  They do not aver any statutory legal duty the defendant has to the government

 

On pages 6 and 7 of the Indictment, the prosecutor avers in counts 1 through 12 the defendant did “willfully fail to collect, truthfully account for, and pay over to the Internal Revenue Service the federal income taxes, Medicare taxes, and Federal Insurance Contributions Act taxes due and owing…All in violation of Title 26, United States Code, Section 7202.”  Section 7202 does not mention income, Medicare, or FICA taxes nor does it impose any duty upon the defendant to “collect, account, and pay over“ any taxes.

 

The listing of taxes claimed to be “due and owing” is again a legal conclusion   Conclusions of law such as these have no standing in civil or criminal process; they identify no legal duty. NAAP v California Board, 228 F3d 1043; General Contractors v Water District, 159 F3d 1178; Parrino v FHP, 146 F3d 699; Pareto v FDIC, 139 F3d 696; In re Syntex Securities, 95 F3d 922; In re Stac Electronics, 89 F3d 1399; In re DeLorean Motor, 991 F2d 1236; Brown v Hot, Sexy, 68 F3d 525; Leed v Meltz, 85 F3d 51. Scheid v Fanny Farmer Candy, 859 F2d 434, 436; Lewis v ACB Business Services, 135 F3d 389, 406; SmileCare Dental v Delta Dental, 88 F3d 780; Car Carriers v Ford Motor, 745 F2d 1101; In re Plywood Antitrust, 655 F2d 627. There is no statutory duty identified.

 

The prosecutor would have this court conclude 26 USC §7202 imposes the legal duty that was violated by the defendant. In addition to the superseding indictment relying upon section 7202, the prosecutor’s Brief filed on or about July 14, 2003 (docket #49) makes the declaration: “To establish a violation of section 7202...”   Perhaps we should examine previous adjudication.

 

In US v HJ.K. Theatre, 236 F2d 502 (1956), charges were brought under §7202 for violation of an admissions tax. In Townsend v US, 253 F2d 461, charges were brought under §7202 and §7201 for violation of wagering and gambling taxes detailed in §4401 and §4411.  In Gundlach v US, 262 F2d 72, §§ 7202 and 7203 were use in a violation of corporate employment taxes Similar results are in Botta v Scanlon, 314 F2d 392, and Ryan v US, 314 F2d 306

 

In Reynolds v US, 288 F2d 78 (1961), the court reviewed a habeas corpus denial for a sentence involving both §7201 and §7202.  Mr. Reynolds had been convicted of not paying an excise tax on wagers for the selling of bolita tickets. Ref. US v Reynolds, 213 FSup 917.

 

It is manifestly obvious §7202 does not identify the “known legal duty” for the above listed convictions nor does it identify a duty required of the instant defendant. As succinctly stated in US v Community TV, 327 F2d 797:  “The taxing statute must describe the transaction, service, or object to be taxed” id. 800.

 

The history of sections 7201 through 7210 reveals the 1954 rewriting of the 1939 Code collected criminal punishments into Chapter 75 from several different sources to eliminate repetition.  The 1939 provisions included §153 for tax exempt organizations, §340 for foreign personal holding companies, §894 and §937 for the estate tax, §1024 for the gift tax, §1718 for admissions and wagering taxes, §1821 for a stamp tax on stocks, bonds and playing cards, §2557 for opium and coca leaves, §2656 for white prosperous matches, §2707 for pistols and revolvers, §3604 on foreign corporations Accepting the similar origin of sections 7201 through 7210, it can be observed Chapter 75 provisions have been applied to numerous different taxes.

 

Numerous defendants in contemporary tax cases prosecuted pursuant to §§ 7201, 7202, 7203, or 7206 have read the statutory “Any person required under this title …” and suggested to their court the legal requirement is outside of Chapter 75. The position has not been persuasive in their courts. It is conceded many appellate court opinions include a declaration that defendants in various cases have violated §7201, or §7202, or §7203, or §7206 and the indictment is valid with that citation. It is submitted the statements are technically imprecise, legally inaccurate, inconsistent with Supreme Court adjudication, and in conflict with constitutional provisions.

 

Undoubtedly the words of the Supreme Court are more persuasive than those of the defendant.  In Sansone v United States, 380 US 343, the court was reflecting on whether §7207 did, or did not, apply to income tax cases. The court identified the 1954 Congressional Record to have legislated specific application of Part I of Chapter 75. “Congress specifically stated that it placed all these provisions (of Part I) in the same part of the Code because it wished them to apply to taxes generally, including income taxes.” id 348, citations omitted.  By the words of the Supreme Court and Congress itself, the citation of Part I of Chapter 75 does not identify any specific tax duty the defendant can violate.

 

The prosecutor’s Brief (docket #49) in comparing the ‘willful’ element in §7202 with §7201 and §7203, has observed the similarity of sections in Chapter 75.  The similarity is suggested within the prosecutor’s brief to allow flexibility in comparing adjudication of the various sections The defendant, relying upon the Sansone court’s statement, concurs.

 

In Grosso v US, 390 US 62, the Supreme Court addressed an issue of willful failure to pay a wagering tax (IRC §4401) and willful failure to pay a gambler’s occupational license tax (IRC §4411). Willful failure is not mentioned in either of the two cited statutes. Willful failure came from §7203.  “Those liable for payment of that tax are required to submit each month Internal Revenue Service Form 730...failure to pay the excise tax and to file a return are separately punishable under 26 USC §7203.” id 65.  Notice should be taken that those “required” and “liable” are identified within Chapter 35 (§4401 to §4424) while punishment is established by §7203. cf. US v Knox, 396 US 77.

Marchetti v United States, 390 US 39,  also involved an offense punishable by §7203 for violations of gambling tax statutes.  “The second indictment included two counts: the first alleged a willful failure to pay the occupational tax, and the second a willful failure to register, as required by 26 U.S.C. 4412, before engaging in the business of accepting wagers.”   id, 40-41.  Note that the statutory requirement of a lawful duty is again “required” within the gambling tax statutes.  “Willful failure,” as a conditional requirement for imposition of a specific punishment, comes from §7203.


In Ingram v US, 360 US 672, the Supreme Court reviewed utilization of §7201 and §7203 to punish violation of §4401, §4411, and §4421 wagering tax provisions. id, Footnote #1. The court declared:  “Liability for the federal tax is imposed by §4401 and 4411 of the IRC…” id 675. The “known legal duty” was within Chapter 35; it was not in Chapter 75.

Punishment via §§7201, 7203, and 7206 for violations relating to wagering taxes was also imposed in US v Sheer, 278 F2d 67; Burks v US, 287 F2d 117;  US v Shaffer, 291 F2d 689; US v Minker, 312 F2d 632; Bohn v US, 260 F2d 773;  US v Claney, 276 F2d 617; US v Stoffey, 279 F2d 924; Application of Leahy, 298 F2d 233; George v US, 346 F2d 137; US v DiPrimio, 209 FSup 137; US v Nicholas, 224 FSup 310.

 

Liquor law violations were punished by §7201, §7203 or §7206 in prosecutions for untaxed distilled spirits in Wilson v US, 320 F2d 493; US v Cook, 412 F2d 293; US v One Ford, 304 F2d 419; US v Champion, 387 F2d 561; Benefield v US, 370 F2d 912; US v Davis, 369 F2d 775; US v Goss, 353 F2d 671; Hyche v US, 286 F2d 248; Ingram v US, 241 F2d 708; Dowling v US, 249 F2d 746; Brown v US, 253 F2d 587; West v US, 259 F2d 868;  O’Neal v US, 273 F2d 549; Tucker v US, 279 F2d 62; King v US, 282 F2d 398; Monnette v US, 299 F2d 847;  Blumenfield v US, 306 F2d 892;  US v Denton, 307 F2d 336; US v One Pontiac, 308 F2d 893; US v Lemons, 309 F2d 168; US v Ivey, 310 F2d 229; Davis v US, 385 F2d 919; US v Rector, 488 F2d 1079. 


Failure to file excise tax returns on wagers required by §4401 and §4411 were punished with §7201, §7203, or §7206 in Tyler v US, 397 F2d 565; US v Stavros, 597 F2d 108; Edwards v US, 321 F2d 324; US v Sams, 340 F2d 1014;  Scaglione v US, 396 F2d 219; US v Magliano, 336 F2d 817; Rutherford v US, 264 F2d 180; US v Gaydos, 310 F2d 883; US v Sette, 334 F2d 267; US v Simon, 241 F2d 308; Clay v US, 246 F2d 298; Merritt v US, 248 F2d 19;  Field v US, 263 758; Barnhill v US, 279 F2d 105; Rosen v US, 293 F2d 938; US v Woodson, 303 F2d 49; US v Nicholson, 303 F2d 330; US v Brooks, 303 F2d 851; US v Marchointe, 309 F2d 435;  US v Whiting, 311 F2d 191; US v Viale, 312 F2d 595; US v Grossman, 315 F2d 94; US v Wilson, 214 FSup 629.  

 

Violations of the required filing of race track forms could have been charged with a misdemeanor under §7203 or a felony under §7206 according to the court in US v LaHaye, 548 F2d 474. Similar gambling violations used the same punishments in US v McGee, 572 F2d 1097; US v Snyder, 549 F2d 171; US v Dumaine, 493 F2d 1257; US v Kessler, 449 F2d 1315; US v Haimowitx, 404 F2d 38; US v Willoz, 449 F2d 1321; US v Salerno, 330 FSup 1401. 

 

A violation of §4461 coin operated gaming devices statute was punished by §7203 in US v Menk, 260 FSup 784.


Admissions tax violations were punished with §7201 in US v Nigro, 262 F2d 783, and with §7202 in US v H.J.K. Theatre, 236 F2d 502.

 

Violations of corporate/employment tax requirements resulted in punishment by §7201, §7202, §7203, §7204 or §7210 in Van Allen Co, v US, 422 US 617; Gundlach v US, 262 F2d 72; US v  Mollet, 290 F2d 273; US v Stevedores, 310 F2d 47; Botta v Scanlon, 314 F2d 392; Ryan v US, 314 F2d 306; US v Becker, 259 F2d 869; US v Rothbart, 723 F2d 752; Huges v US, 899 F2d 1495; US v Gonzales, 58 F3d 506; US v Neal, 93 F3d 219 (6th. Cir 1996); US v Mounkes, 204 F3d 1024 (10th. Cir 2000).

 

Tax preparer violations were punished by §§ 7201, 7203, and 7206 in US v Mesheski, 286 F2d 345, and US v Barnes, 313 F2d 325.

 

A sugar tax violation was punished by §7203 in Call v US, 265 F2d 167.

An estate tax violation was punished by §7207 in US v Alker, 254 F2d 292.

A marijuana tax violation was punished by §7206 in US v Alvere, 470 F2d 981.

A violation of concealing property from levy was punished by §7206 in US v Bergman, 306 F2d 653.

 

This list is not exhaustive.

 

Do the above cases evidence all potential uses of Chapter 75 punishments?  Of course not Section 4071 imposes a tax on manufacturing of tires, §4081 imposes a tax on gasoline and diesel fuel production, §4091 imposes a tax on manufacturing aviation fuel, §4121 imposes a tax on coal mining, §4161 imposes a tax on sporting goods, but the entire list would be very lengthy. The statutory provisions in §7201 through §7210 that apply to “Any person required under this title to…” authorizes punishment for violators of sections listed in this paragraph and other tax violations or there is otherwise no penalty for such offense---with a few specific exceptions. The criminal penalties of Chapter 75 for the above mentioned taxes may be seldom filed, but if there were no penalties, the manufacturers would surely cease paying the taxes.

 

The legal duties of a tax are located in the chapters detailing provisions of the tax, and the defendant has not been confronted with any of those statutory legal duties. He has not been charged with violating a law.  There has been no crime averred. The terms of a statute control where the incidence of the tax falls.   US v Lohman, 74 F3rd 863, 866  (8th. Cir   1996).  A defendant cannot violate a punishment provision in Chapter 75. Chapter 75 details no action that would constitute a crime; it merely establishes mental or physical predilection of the defendant’s actions that authorize a specific statutory punishment

 

A citation from Chapter 75 does not identify a “known legal duty.”   Chapter 75 can be applied to “legal duties” related to alcohol violations, to wagering tax violations, to occupational license tax violations, to marijuana violations, to sugar law violations, to estate tax violation, to tax preparer violations, to corporate tax violations, and to admissions tax violations.  The legal duty violated in those cases was clearly not found in §720x, nor does §720x present a legal duty for an income tax or for FICA taxes. A lawful duty is not averred by citing an allowable punishment.

 

Do the charges in counts 13 through 27 present a different conclusion?  The indictment, in counts 13 through 27, claims the defendant has violated 18 USC #287 relating to “False, fictitious or fraudulent claims” and again makes declarations that FICA, Medicare and income taxes are being pursued. Ref. Amended Indictment, pages 8 and 9.   Legal conclusions that the defendant violated FICA, Medicare and income taxes have no standing in criminal process; they identify no statutory duty. 

 

In addition, without establishing a lawful requirement, the term ‘false’ or ‘fraudulent’ is without a standard of comparison. It is irrational to aver a false claim when an established lawful duty is not identified. With the government’s adamant refusal to identify and expose a specific statutory tax requirement to contestation, the blank tax-forms could be evidence of fraud and extortion by the government. Is there any lawful tax that is due?  If so, the prosecution has consistently refused to expose it to contestation. The burden of proof of showing a lawful tax due is upon the government.

 

In addressing an appeal from tax court, the circuit court declared: “Fraud is intentional wrongdoing on the part of the taxpayer with the specific intent to avoid a tax known to be owing.”  Estate of Trompeter v CIR, 279 F3d 767, 773; quoting Conforte v Comm’r, 692 F2d 587. The status of whether a tax is “owing” has been recognized by the prosecution as a major element in question Nowhere in the indictment has any statute been identified that imposes a lawful tax. Even in civil actions, the absence of an essential element being claimed by the petitioner is taken as evidence that the element is non-existent.  Scheid v Fanny Farmer, 859 F2d 434, 437; O’Brien v DiGrazia, 544 F2d 543, 546 n.3.  Since the government has refused to identify ANY statutory tax claimed to be due and owing, it follows that we should conclude the statute making a tax mandatory does not exist. Only a statutory tax imposes a duty upon a citizen, and no statutory duty is identified in the indictment. Could it be that the IRS is attempting to conceal fraud?

 

Prosecutors have claimed §7201 through §7210 have been violated by defendants facing income tax charges for decades.  The statutes are, in reality, authorization of power/punishment the IRS can utilize to coerce the payment of taxes. They have been confused with the authorized purpose for which the IRS was established; i.e., the collection of taxes. The difference between a power and an authorized purpose was eloquently distinguished in Boyd v US, 116 US 616.  The difference between unrestrained power and use of power only for authorized purposes is the difference between tyranny and freedom. 

 

"Law is something more than mere will exerted as an act of power...Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law...the limitations imposed by our constitutional law upon the action of the governments...are essential to the preservation of public and private rights..the enforcement of these limitations by judicial process is the device of self-governing communities to protect the rights of individuals and minorities... against the violence of public agents transcending the limits of lawful authority, even when acting in the name and wielding the force of the government.”  Hurtado v California, 110 US 516, 536 (1884).

 

Due process requires the prosecutor to affirmatively evidence their authority to tax "...jurisdiction of the Courts of the United States means a law providing in terms of revenue; that is to say, a law which is directly traceable to the power granted to Congress by Section 8, Article I, of the Constitution, 'to lay and collect taxes, duties, imposts, and excises.'" US v Hill, 123 US 681, 686 (1887). US v Hill, read simply, declares the court does not have jurisdiction unless the law cited in the indictment reflects a constitutional authorization. In the instant case, there is no law cited that claims to impose statutory responsibility on the defendant, which is far less than the required averment of constitutional authorization

 

The Supreme Court nullified the conviction of a crime that was not charged in the indictment "No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal. If, as the State Supreme Court held, petitioners were charged with a violation of 1 [and convicted of 2], it is doubtful both that the information fairly informed them of that charge and that they sought to defend themselves against such a charge; it is certain that they were not tried for or found guilty of it. It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made." Cole v Arkansas, 333 US 196, 201 (1947), citations omitted. "A judgment rendered in violation of due process is void."  National Bank v Wiley, 195 US 257 (1904); Pennoyer v Neff, 95 US 714 (1878); Hovey v Elliott, 167  US 409, 414-415.

 

The present situation is not of charging the defendant under one statute and convicting him under another as in the Cole case; it is a situation of convicting him under an unidentified statute---of "a charge that was never made." The IRS has not charged the defendant with being legally responsible for any tax. The present situation is precisely the example envisioned by the court as a most egregious violation of due process. Defendant must be given adequate notice of the offense charged against him and for which he is to be tried.  Smith v O’Grady, 312 US 329 (1941). “This Court has repeatedly stated that criminal statutes which fail to give due notice that an act has been made criminal before it is done are unconstitutional deprivations of due process of law.” Jordan v De George, 341 US 223, 230 (1951). Here we are faced with a complete lack of any statute that gives notice of a lawful duty. And again: "Conviction upon a charge not made would be sheer denial of due process." De Jonge v Oregon, 299 US 353, 362. (1937); Dunn v US, 442 US 100, 106-107.

 

Would the lack of a statute averring legal liability constitute harmless error? Again, let the Supreme Court address the issue.  “Deprivation of such a basic right (to be tried only on charges presented in an indictment) is far too serious to be treated as nothing more than a variance and then dismissed as harmless error.” US v Miller, 471 US 130, 140; Stirone v US, 361 US 212, 217.

 

Even in civil proceedings, the right to be confronted with the law imposing a legal responsibility is well established.  The constitution commands “that all available defenses may be presented to a competent tribunal before extraction of the tax and before the command of the state to pay it becomes final and irrevocable.”  Nickey v Mississippi, 292 US 393, 396 (citations omitted).  And again:  The constitution requires a taxpayer must have “an opportunity to question the validity or the amount of (the tax) either before that amount is determined, or in subsequent proceedings for its collection.”  Winona v Minnesota, 159 US 526, 537 (citations omitted). These civil action standards are not diminished in criminal prosecutions. Is it not obvious that the opportunity to present a defense or to question the validity of a tax is never available if the conditions of why an individual might be legally responsible for the tax is never established ??

 

Perhaps the declaration in US v Hutcheson, 312 US  219 (1941) involving a labor dispute under the Sherman Act might be suggested to allow flexibility in--- or to even negate the necessity of--- identifying a statute violated by the accused:   “In order to determine whether an indictment charges an offense against the United States, designation by the pleader of the statute under which he purported to lay the charge is immaterial.  He may have conceived the charge under one statute which would not sustain the indictment but it may nevertheless come within the terms of another statute.  (A statute other than the one cited)  may draw the sting of criminality from the allegations.” id, 229.  [This case was cited as supportive during the modification of FRCrP 7 (c) (3).]

 

It is noteworthy the Supreme Court has never relied upon this passage nor have they supported it in any subsequent case involving the sufficiency of an indictment.  It is conspicuously absent from US v Miller, 471 US 130 (1985); Dunn v US, 442 US 100; Hamling v US, 418 US 87 (1974); Russell v US, 369 US 749 (1962); and Stirone v US, 361 US 212 (1960).

 

The appellate courts that have referred to the Hutcheson case on this point have involved statutes averred in the indictment that was not the specific statute violated by the accused A consistent qualifier added in those cases was that the substitution did not “prejudice” the defendant.  US v Calabro, 467 F2d 973, 981 (2nd cir 1972);  US v Kahn, 472 F2d 272, 284 (2nd cir 1973); US v Chestnut, 533 F2d 40, 45 (2nd cir 1976); US v Bethany, 489 F2d 91, 93 (5th cir 1974);  US v Stone, 954 F2d 1187, 1191-1192 ( 6th Cir. 1992); US v Bonallo, 858 F2d 1427, 1431 (9th. Cir 1988); US v Chatham, 677 F2d 800, 803 (11th. Cir 1982).  The “prejudicial” proviso was incorporated into Federal Rule of Criminal Procedure 7 many years ago

 

After considering the Hutcheson statement, one appellate court dismissed the indictment.  “Because the missing element in the present case was essential, its complete absence …is a fatal defect…The first four elements…do not by themselves state ANY federal crime.  The court thus had no jurisdiction to try (defendant) under that count…and its judgment must be vacated”  US v Hooker, 841 F2d 1225, 1232 (4th cir 1988) emphasis in original. If the absence of a mere fact is sufficient reason to declare jurisdiction is void, the lack of a statute that the fact is to evidence was violated is a much more profound reason.

 

It is sometimes contended “elements” relate exclusively to facts and eliminates the requirement a law be averred in an indictment, or in an information. Elements historically included provisions of law. The Supreme Court has declared:  “Our prior cases indicate that an indictment is sufficient if it, first, contains the elements of the offense charged AND fairly informs a defendant OF THE CHARGE which he must defend…”  Hamling v US, 418 US 87, 117 (1974),  emphasis added.    The charge---in addition to the elements--- must be presented in the indictment. A “charge” is an alleged violation of a statute. The supreme court imposed no qualification of prejudice.

 

 

Compare the above with FRCrP, 7 (c) (1): “The indictment or information must be a plain, concise, and definite written statement of the essential facts constituting the offense charged…”  The “essential facts” do not replace the requirement that a statutory legal duty must be averred; they are used to describe why the actions of the accused varied from the mandatory duty and constitute “the offense charged.”  Without identifying a mandatory duty imposed by statute, all facts are irrelevant; there is nothing to prove.

 

Endless recent appellate citations can be offered that include the statement  “elements of the offense” or “elements of the charge” or  “elements of the crime charged” are required for a valid indictment.  Ref. West’s Federal Procedure Digest, Indictment & Information, Key 60. A variance from a statutory duty, alleged elsewhere, is implicit within these statements. The elements are required in addition to the identification of a mandatory duty to prove the variance from the known legal duty imposed by a statute. Elements are of no value if they do not describe how the action of the defendant varied from a statutory required duty.

 

As a representative case, US v Vroman, 975 F2d 669 (9th. Cir 1992) relies upon Hamling v US., 418 US 87 (1974) to contend mere elements without the identification of a statutory duty is sufficient for a valid indictment.  Hamling states: “Our prior cases indicate that an indictment is sufficient if it, first, contains the elements of the offense charged AND FAIRLY INFORMS A DEFENDANT OF THE CHARGE AGAINST WHICH HE MUST DEFEND… id 117 emphasis added.  Hamling certainly does not negate the mandate that an indictment must clearly identify a “known legal duty”

 

The writers of FRCrP 7 (c)(3) provision eliminating the necessity of presenting a violated statutory citation in an indictment also relied upon Williams v US, 168 US 382 (1897).  “It is wholly immaterial what statute was in the mind of the district attorney when he drew the indictment, if the charges made are embraced by some statute in force…We must look to the indictment itself, and, IF IT PROPERLY CHARGES AN OFFENSE under the laws of the United States, that is sufficient to sustain it, although the representative of the United States may have supposed that the offense charged was covered by a different statute.”  id 389, emphasis added. It must be noted there is no implication in Williams or in the Hutcheson case that an indictment without an alleged statutory violation could be considered valid.

 

But the discussion of Hutcheson and Williams is missing the entire point of this Motion to Dismiss  Those cases focused on an issue of whether the statute cited is different from the crime of which the defendant was convicted---and whether the difference is “prejudicial” to the defendant.  The status of “prejudice” as an issue relevant to an indictment without any identified offense has already been declared a non sequitur.  Harris v US, 149 F3d 1304, 1308; Kelly v US, 29 F3d 1107, 1113-1114; Patton v US, 281 US 276, 292.

 

The instant indictment does not aver/charge a violation of a known legal duty---a federal crime---and does not present a case for adjudication; the challenge is jurisdictional

 

Numerous opinions after trial have declared either IRC §§ 1, 61, 63, 6011(a), 6012, 6012(a), et seq., 6072(a), or 6151 or even the 16th. Amendment impose liability (a legal duty) for an income tax. Ref. US v Moore, 692 F2d 95; Ficalaro v CIR, 751 F2d 85; Charczuk v CIR, 771 F2d 471; Stelly v CIR, 761 F2d 1113; US v Pederson, 784 F2d 1462 (1986); US v Bowers, 920 F2d 220; US v Vroman, 975 F2d 669; Coleman v CIR, 791 F2d 68.  These declarations not only evidence the indictments did not include the statute the courts have concluded impose liability (without an opportunity to confront the premise in violation of the Sixth Amendment), but they additionally evidence the filling in of voids within the indictment after trial---a practice rejected by the supreme court. It must be noted those statutes are never cited in an indictment.

 

In condemning a nebulous indictment, the court declared: “A cryptic form of indictment in cases of this kind requires the defendant to go to trial with the chief issue undefined. It enables his conviction to rest on one point [law] and the affirmance of the conviction to rest on another. It gives the prosecution free hand on appeal to fill in the gaps of proof [law] by surmise or conjecture. The Court has had occasion before now to condemn just such a practice.” Russell v United States, 369 US 749, 766. citations omitted. 

 

The conclusion by the appellate courts that the above statutes were believed to impose liability constitute an acknowledgment that the issue of liability was never submitted to the court for contestation.  "The court in effect rendered judgment against him upon a matter that was not within the pleadings and was not in fact litigated To do this without his consent---and the record shows no consent---is contrary to fundamental principles of justice." Coe v Armour Fertilizer, 237 US 413, 426 (1915).

 

And again the court reversed a conviction: “There was a discrepancy between the basis on which the jury rendered its verdict and that on which the Court of Appeals sustained petitioner’s conviction…appellate courts are not free to revise the basis on which a defendant is convicted simply because the same result would likely obtain on retrial…To uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury at trial offends the most basic notions of due process.  Few constitutional principles are more firmly established than a defendant’s right to be heard on the specific charges of which he is accused.”  Dunn v US, 442 US 100, 106 (1979); Thornhill v Alabama, 310 US 88, 96.  Naked facts do not present a charge, nor do conclusions of law, nor does the citation of a permissible punishment

 

And what is the status of an indictment that does not aver a crime??  The constitution authorizes the federal courts to have jurisdiction of “cases.”  If an indictment does not aver a crime, there is no case. “If an indictment does not charge a cognizable federal offense, then a federal court lacks jurisdiction to try a defendant for violation of the offense…Matters of jurisdiction may be raised at any time, because if a court lacks subject matter jurisdiction, it does not have power to hear the case.”  US v Adesida, 129 F3d 846, 850 (6th. Cir 1997); US v Armstrong, 951 F2d 626, 628 (5th cir. 1992); US v Hughey, 147 F3d 423, 436  (5th. Cir 1998); US v Dabbs, 134 F3d 1071 (11th.Cir. 1998); Thor v US, 554 F2d 759, 762 (5th. Cir 1977). 

 

 “If (the defendant) was convicted of a charge the grand jury never made against him, (it) was fatal error.”  Stirone v US, 361 US 212, 217-219 (1960).  "Conviction upon a charge not made would be sheer denial of due process." De Jonge v Oregon, 299 US 353, 362. (1937); Thornhill v Alabama, 310 US 88, 96 (1939).

 

“Convictions generally have been sustained as long as the proof upon which they are based corresponds to an offense that was clearly set out in the indictment… Deprivation of such a basic right (to be tried only on charges presented in an indictment) is far too serious to be treated as nothing more than a variance and then dismissed as harmless error.” US v Miller, 471 US 130, 136, 140 (1985); Russell v US, 369 US 749, 770-771.

 

“We cannot affirm a criminal conviction on the basis of a theory not presented to the jury.”  Chiarella v US, 445 US 220,  236 (1980).   “To properly proceed with a prosecution, the government must allege conduct violative of a federal statute. An indictment must include all of the essential elements OF THE CRIME ALLEGED therein…”  US v Palumbo Bros, 145 F3d 850, 860 (7th. Cir 1998) emphasis added;  US v Hooker, 841 F2d 1225,1232 (4th cir 1988). In addition to the elements, the crime must be alleged.  Jurisdictional defects  “CANNOT be procedurally defaulted …(nor) waived or conferred by the consent of the parties…(nor must a defendant) show ‘cause’ to justify his failure to raise such a claim (in trial court).”  Harris v US, 149 F3d 1304, 1308 (11th. Cir 1998) emphasis in original.

 

The Supreme Court’s addressing the sufficiency of an indictment is relevant:  “If it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which the common law attaches to an indictment by a grand jury, as a prerequisite to a prisoner’s trial for a crime, and without which the Constitution says ‘no person shall be held to answer,’ may be frittered away until its value is almost destroyed…(this court’s unanimous opinion has been) that a court cannot permit a defendant to be tried on charges that are not made in the indictment against him.”  US v Miller, 471 US 130, 142-143 (1985) internal citations omitted

 

The requirement of a charge is maintained as recently as 1998.  “An indictment must set forth each element OF THE CRIME IT CHARGES.”   Almendarez v US, 523 US 224, 228 (1998). emphasis added.  Note the charge is a separate entity from the elements set forth. Even the IRS is required to conform their prosecutions to actions that are clearly defined in the statutes or face dismissal of indictments US v Carroll, 345 US 457 (1953).

 

“The Sixth Amendment requires that an indictment (1) enumerate each prima facie element of the charged offense; (2) fairly inform the defendant of the charges filed against him…The purpose of the indictment is to provide the defendant with notice of the offense with which he is charged.”   Almendarez v US, 523 US 224, 228 (1998); Hamling v US, 418 US 87, 117; US v Miller, 471 US 130, 136; US v Wicks, 187 F3d 426 (4th. Cir 1999); US v Gaytan, 74 F3d 545, 551-552 (5th. Cir. 1996); US v Cavalier, 17 F3d 90 (5th. Cir 1994); Separate v Rees, 909 F2d 1234 (9th. Cir 1989); US v Scott, 993 F2d 1520 (11th. Cir 1993). Notification of legal responsibility is "the first essential of due process of law." Connally v General Construction Co., 269 US 385, 391 (1926). Conformance with that requirements has clearly not been made.

 

“The starting place for any determination of whether the charged conduct is proscribed by a criminal statute is a reading of the language of the charging instrument and the statute itself…(and if there is) lack of adequate notice of the crime alleged…(then) it is so defective that by any reasonable construction, it fails to charge the offense for which the defendant is convicted (and it must be set aside).” US v White, 258 F3d 374, 381 (5th Cir. 2001). Citations and quotations omitted.  Again, the required “criminal statute” has not been found in the instant indictment.

 

In reviewing an indictment that failed to aver a required statutory element of a crime, the court declared: “Only the appearance in the indictment of all of the offense’s elements meets this (jurisdictional) requirement.” US v Cabrera-Teran, 168 F3d 141, 145  (5th Cir. 1999).  The lack of the required element in the indictment required the court to conclude: “Because of this omission, the indictment fails to charge an offense, leaving the district court without jurisdiction.” id. 147. US v Adesida, 129 F3d 846, 850 (6th. Cir. 1998); US v Armstrong, 951 F2d 626, 628 (5th. Cir.)  “An indictment must include all of the essential elements of the crimes alleged therein.. To properly proceed with a prosecution, the government must allege conduct violative of a federal statute.“  US v Palumbo, 145 F3d 850, 860;  US v Miller, 471 US 130; US v Sloan, 939 F2d 499; US v Mallen, 843 F2d 1096, 1102 (8th. Cir 1988); US v Adkinson, 135 F3d 1363 (11th cir 1998). In the instant case, we are not faced with the mere omission of an element of a crime; we are faced with the omission of a crime; of “conduct violative of a federal statute.”

 

In US v Haga, 821 F2d 1036 (5th. Cir 1987) the court reviewed an indictment with the declaration: “This is not a case of citing the wrong statute…the indictment…plainly allege one offense, while appellant was convicted of another and different offense.”  id 1045-1046.   The court set aside the conviction with the declaration:  “A conviction for an offense not alleged in the indictment or presented at trial offends the most basic notions of due process.  Few constitutional principles are more firmly established than a defendant’s right to be heard on the specific charges of which he is accused.” id. 1046, citing Dunn v US, 442 US 100.

 

“The Fifth Amendment guarantees that a criminal defendant will be tried only on charges alleged in a grand jury indictment…the indictment cannot be broadened or altered except by the grand jury…A constructive amendment occurs when the trial court, through its instructions and facts it permits in evidence, allows proof of an essential element of a crime on an alternative basis permitted by the statute but not charged in the indictment …a constructive amendment is considered prejudicial per se and grounds for reversal of a conviction.” US v Threadgill, 173 F3d 357, 370 (5th. Cir 1999); US v Hornung, 848 F2d 1040, 1046 (10th. Cir. 1988); US v Hathaway, 798 F2d 902, 910 (6th. Cir. 1986).

 

"…compliance with this constitutional mandate is an essential jurisdictional prerequisite to a federal court’s authority to deprive an accused of his life or liberty. If this requirement of the (Bill of Rights) is not complied with, the court no longer has jurisdiction to proceed.  If  …petitioner …did not competently and intelligently waive his right to counsel (and was therefore denied a constitutional right), it will follow that the trial court did not have jurisdiction to proceed to judgment and conviction of petitioner…The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release by habeas corpus.”   Johnson v Zerbst, 304 US 458, 467, 468 (1938); Burgett v. Texas, 389 US 109 (1967). The Fifth Amendment right to be notified of a law allegedly violated and the opportunity to defend against the charge, secured by due process, is of no less constitutional moment than the Seventh Amendment right to counsel in the Zerbst case.

 

In Smith v US, 360 US 1, the court held the Fifth Amendment right to an indictment for a capital offense could not be waived by the defendant and that a proceeding in violation of this constitutional requirement negated the jurisdiction of the court.  The ruling was incorporated into Federal Rule of Criminal Procedure 7(a).

 

Nor can an invalid indictment be modified by the prosecutor.  An indictment that does not charge a crime can not have substantive issues modified by the prosecutor; an indictment is an emissive of a grand jury. Rabe v Washington, 405 US 313 (1972).

 

The instant action involves the lack of a law identifying a known legal duty in the indictment and the failure to allege a crime. The courts therein made a clear usurpation of power by wrongfully extending its jurisdiction beyond the scope of their authority Stoll v Gottlieb, 305 US 165, 171. That renders the adjudication a nullity and void, not merely voidable. Lubben v Selective Service Board, 453 F2d 645; Vallely v Northern Ins., 254 US 348, 353-354. A void judgment, as opposed to an erroneous one, is one that from its inception was legally ineffective. Williams v North Carolina, 325 US 226; Kalb v Feuerstein, 308 US 433.

 

“Where there is clearly no jurisdiction over the subject-matter, any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible.”  Bradley v Fisher, 80 US 335, 352 (1871); Rankin v Howard, 633 F2d 844.

 

There is no known legal duty averred to be violated (a charge) in the instant indictment.  The indictment must be dismissed for failure to state a crime.

 

Does the requested relief run counter to the Federal Rule of Criminal Procedure 7 (c)(3) declaration as amended in 2002 that “a citation’s omission is (not) a ground to dismiss the indictment or information or to reverse a conviction”  (hereafter the ‘Rule’)  unless the judge, in his sole opinion, declares the omission works to “prejudice” the defendant?    It does indeed.  Prejudice is inherent when a defendant is not accused of violating a statute.

 

There is NO court adjudication found prior to 2002 that has even considered the Rule’s position acceptable, including the US v Hutcheson  and Williams v US cases (supra) cited as supportive by the advisory committee during the establishment of the Rule.  Not only is the Rule in irreconcilable contrast with all court adjudication discussed herein, the Rule is directly in contrast with constitutional covenants the decisions have adjudicated during the past 200 years.  In fact, it is in conflict with FRCrP 7 (c)(1): “…the indictment or information must give the official or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated.”

 

The Rule is contrary to the Fifth Amendment covenant that “No person shall be…deprived of life, liberty, or property, without due process of law…”  The 800 years evolution of “due process” from the Magna Carta’s provision that “No free man shall be taken or imprisoned or disseized or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the…law of the land.” is totally annihilated by the provision. Dent v West Virginia, 129 US 114; Hovey v Elliott, 167 US 409; Ref. CONSTITUTION OF THE UNITED STATES OF AMERICA,  U.S. Government Printing Office, p 1137,  1973.   

 

In addition, the Sixth Amendment provision that the accused shall “be informed of the nature and cause of the accusation” is also made conditional upon the whim of a judge.  The Rule, in effect, would negate two of the most fundamental bedrock Constitutional protections the citizens have from oppressive government  It leaves to the imagination of the prosecutor and the court an unchallengeable discretion to accuse without identification of the violative act.  Incarceration could be ordered until the accused confesses to some crime and then the accusation commences. It inherently shifts the burden of proof from the prosecutor to the accused; it is impossible for an accused to prove they are innocent of an unidentified crime. It would prevent any defense from being presented since there is no identification of what act is supposedly forbidden. Appeals, as a method of verifying a law was violated, would be a hollow ritual; the issue was never addressed in trial court nor submitted to contestation. 

 

The Rule is an instrument worthy only of a tyrant in the image of Saddam Hussein. Should we count the days before midnight arrests, incommunicado confinement, and a silent permanent removal from society in a police state will become commonplace? All in the interest of protecting the people, of course. A “crime” of being politically incorrect would expeditiously remove an irritant from society into a memory hole.

 

The court has said it very well: “It is not permissible to shift the burden by arbitrarily making one fact, which has no relevance to guilt of the offense, the occasion of casting on the defendant the obligation of exculpation.”  Tot v US, 319 US 463, 469. Applied in the instant case, it could be read: The acknowledgement that the IRS collects taxes cannot be automatically converted into indisputable proof that anyone accused by the IRS is inherently legally responsible for an unidentified tax.  Due process does not condone guilt by mere accusation; guilt of a crime requires the violation of a statute. “The power to create presumptions is not a means of escape from constitutional restrictions.” Bailey v Alabama, 219 US 219, 239.

 

Further, the constitution has provided “Judicial Power shall extend to all Cases…arising under this Constitution, the Laws of the United States…”   Article III,  Section 2.       Federal courts have only jurisdiction authorized by Article III of the Constitution and the federal statutes enacted pursuant thereto.  Bender v Williamsport School, 475 U.S. 534, 541-543 (1986).  “This clause (Article III, Section 2) enables the judicial department to receive jurisdiction to the full extent of the constitution, laws, and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on it.  That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law.  It then becomes a case.”  Osborn v Bank of the United States, 22 US 738, 819 (1824). And what is a “form prescribed by law”?

 

An indictment is defined as: “An accusation in writing found and presented by a grand jury…that a person therein named has done some act, or been guilty of some omission, which by law, is a public offense, punishable on indictment.” Black’s Law Dictionary, Fourth Edition.  If a form does not identify a public offense by law, it is not an indictment. An indictment that does not identify a public offense is an oxymoron.

 

The Rule attempts to authorize an expansion of jurisdiction to adjudicate a form (labeled an indictment) that does not identify a case arising under the laws of the United States.  The Rule is therefore an attempt to amend the constitution that has not followed the established methods for amendment and is consequently null and void “A court does not have the power, by judicial fiat, to extend its jurisdiction over matters beyond the scope of the authority granted to it by its creators.”  Stoll v Gottlieb, 305 US 165, 171. A fundamental constitutional right cannot be negated by a mere procedural alteration.   “Nothing can destroy a government more quickly than its own failure to observe its own laws or worse, its disregard of the charter of its own existence.”  Mapp v Ohio, 367 US 643, 659 (1961).

 

It is established that an act of congress repugnant to the constitution is null and void Marbury v Madison, 5 US 137. "The courts are not bound by mere form, nor are they to be misled by mere pretenses. They are at liberty -- indeed they are under a solemn duty -- to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority If, therefore, a statute purported to have been enacted to protect...the public safety, has no real or substantial relation to
those objects or is a palpable invasion of Rights secured by the fundamental law, it is the DUTY of the courts to so adjudge, and thereby give effect to the Constitution." Mulger vs. Kansas, 123 US 623, 661.

 

Rules of court hold less stature than a law and must be similarly treated.  "An unconstitutional act is not law; it confers no rights, it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed." Norton v. Shelby County, 118 US 425. It is the duty of the court to uphold the constitution they have sworn to support, not the rules of procedure. US v Fisher, 6 US 358; Williams v Louisiana, 103 US 637.  The court cannot decline to rule on a constitutional challenge.   Shelley v Kraemer, 334 US 1; Scott v Sandford, 60 US 393.
"Because of what appears to be a lawful command on the surface, many citizens, because of their respect for what only appears to be the law, are cunningly coerced into waiving their rights due to ignorance." US v. Minker, 350 US 179, 187.

 

And again:  “This court, as is the case with all federal courts,  has no jurisdiction to (address and proceed) except as it is called upon to adjudge the legal rights of litigants in actual controversies.”  US v Raines, 362 US 17, 21 (1960). In the instant case, there is no “legal right of a litigant” brought before this court, yet the Rule would condone the indictment. It is elementary that a citizen has no responsibility to pay a tax unless the tax is statutorily imposed. As affirmed by the court in Boyd v US, 116 US 616:  “If it is a law, it is in the books; if it is not in the books, it is not a law.”

 

Would a claim by the prosecutor that the unidentified tax is beyond a viable challenge be sufficient to sustain the flawed indictment?  Again, the court has responded  "...notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused..." Cole v Arkansas, id 201, emphasis added.  The court has reiterated that the indictment must be valid on its face to satisfy the Fifth Amendment requirement of due process.  Lawn v US, 355 US 339, 349.  Conviction without a criminal charge violates the first principle of due process.  Thornhill v Alabama, 310 US 88, 96.

 

In addressing a tax issue, the Supreme Court was quite lucid in a civil case.  “It is enough that all available defenses may be presented to a competent tribunal before exaction of the tax and before the command of the state to pay it becomes final and irrevocable.” Nickey v Mississippi, 292 US 393, 396; Security Trust v Lexington, 203 US 323. The forum to present all available defenses is of no less moment in this criminal proceeding than in a civil case. 

 

Would the nebulousness of a specific statute that imposes a tax be sufficient to waive a formality of specifying the tax?  The court has responded to that question. “Keeping in mind the well-settled rule that the citizen is exempt from taxation unless the same is imposed by clear and unequivocal language, and that where the construction of a tax law is doubtful, the doubt is to be resolved in favor of those upon whom the tax is sought to be laid.”  Spreckels Sugar v McClain, 192 US 397, 416 (1903).  And again:  “In the interpretation of statutes levying taxes it is the established rule not to extend their provisions, by implication, beyond the clear import of the language used, or to enlarge their operations so as to embrace matters not specifically pointed out.  In case of doubt they are construed most strongly against the government, and in favor of the citizen.”  Gould v Gould, 245 US 151, 153; Hecht v Malley, 265 US 144, 156; Hassett v Welch, 303 US 303, 314; White v Aronson, 302 US 16, 20.  In the instant case, we have enlarged a statute that we have not seen.

 

The Rule undercuts all protections and positions identified in Opinions in the above six paragraphs.

 

If we were to conclude that no law imposing a tax is required to be averred, with a claim the statute has been violated by the accused, is it not obvious that the need for the unidentified law to exist is superfluous?  Is it not apparent that whatever the prosecutor and the magistrate agree should be the duty of the accused then becomes sufficient authority to imprison the miscreant?  Is this not an obvious case of a “government of men” and not a “government of law”?

 

The constitutional right to be left alone unless accused of violating a law has been declared to be “the most comprehensive of rights and the right most valued by civilized men.” (Olmstead v US, 277 US 438, 478 dis op.) and is the essence of due process. The Magna Carta’s declaration that “No free man shall be taken or imprisoned or disseized or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the…law of the land.” (the historic origin of due process) arguably predates the origin of the indictment

 

While all legal theory and case history given herein focus on the absence of a law within the indictment, a reflection on the history of the Magna Carta's protection in the frame of the instant application underscores why the safeguard was demanded by the Barons so many years ago. Without a requirement that the law be cited to justify the King's seizure of the peasant's goodies, there can be no meaningful defense to arbitrary confiscation under color of law. If an affirmative declaration of the law imposing the tax is not mandatory, the dispossessed must carry the burden of proof to show the theft is illegal; i.e., that the seizure cannot be justified under some unidentified law. A threat of criminal prosecution---and confinement---rather than an outright seizure by King John’s minions only increases the severity of devastation to the citizen. This proviso in the Magna Carta reversed the Roman law maxim of guilt by accusation and has become a bed-rock foundation of Anglo jurisprudence.

 

A reversal of our historic placement of the burden of proof is impossible to overcome; it is impossible to prove that a law that MIGHT impose a tax does not exist. It is plain that where the burden of proof lies may be decisive of the outcome. Cities Service Oil Co v Dunlap, 308 US 208. The burden of proof is upon the taxing entity; it is a violation of due process to require a defendant to prove exclusion from a tax.  First Unitarian Church v Los Angeles, 357 US 545.

 

To be denied the opportunity to present a defense to a (supposed) criminal charge is a reversion to the barbaric days of the Salem (and continental) witch trials and the Inquisitions wherein any individual defending the accused became another accused The IRS has a lengthy and consistent track record of adamant refusal to declare in court documents and in testimony, in correspondence to private citizens, during press conferences, and to members of congress, a law that imposes an income tax and risk exposure to a challenge in court while carrying the burden of proof as required by due process.

 

In fact, a senior representative of the IRS declared during a September, 2003 press conference that individuals who demand to know the law that imposes an income tax should expect to face criminal charges. The citizen must acquiesce to legal responsibility for any tax conjured by the IRS or face the awesome wrath of limitless funding behind criminal prosecution and the destruction of that individual‘s life. [One method of avoiding a presentation of a liability statute is for the prosecutor to introduce evidence the accused signed and filed tax forms in earlier years.  Similar evidence that an accused burglar had prior convictions for robbery would not be allowed in a criminal prosecution.] It can only be concluded that the absence from all judicial process is an institutional policy to prevent a challenge to any tax with the requirement the government carry the burden of proof. 

 

An income tax may, or may not, be involved in the instant indictment.  Discussion of that particular tax is used to show the documented institutional position of the IRS toward any person that presents a legal challenge to a tax.  The relevant statutes in Title 26, prior to the 1954 revision, repeatedly required the citizen be shown “liable by law” before a summons to appear would be enforced by a court. Those provisions were omitted in the revision. It is not mere oversight on the part of the IRS to not aver a statute that imposes a legal liability on the citizen. It is a deliberate and premeditated institutional practice of more than 50 years.

 

Various court opinions and government sources have listed a variety of statutes suggested to impose liability for an income tax.  They include IRC §§1, 61, 63, 6011(a), 6012, 6012(a), et seq., 6072(a), and 6151 and even the 16th. Amendment. It is observed that none of these statutes have ever been averred in any complaint, indictment, or information where the government would have to carry the burden of proof and expose the statute to contestation as required by due process.

 

In reflecting on Star Chamber proceedings, the Supreme Court quoted J. Stephen: "There is something specially repugnant to justice in using rules of practice in such a manner as to (prevent a defendant) from defending himself, especially when the professed object of the rules so used is to provide for his defense." Faretta v. California, 422 U.S. 806, 822-823 (1975). The object in the instant procedure of the IRS "to prevent a defendant from defending himself " may be even less meritorious: to expedite the confiscation of revenue by preventing a challenge to the law.

 

This nation has had occasion to witness the flagrant violation of procedural safeguards of due process in judicial proceedings.  The practice is identified as judicial lynching  In reviewing a case in which a black defendant, to appease a mob of white citizens, was arrested, indicted, convicted, and sentenced to death in less than two days after a young white girl was reportedly raped, the Supreme Court of Appeals for the State of West Virginia declared: “A judicial lynching is a graver and more startling crime than a lynching by the irresponsible rabble.  It undermines the foundation of orderly government, and weakens respect for law and order.  Much of the success of any form of government depends upon the opinion of those governed, of its power to protect them in the administration of the laws, and in the wisdom and integrity of those who govern.  When the courts do not uphold the laws, respect for law and for government ceases.  There should be no compromise with the spirit of lynching for any crime.”  State v Lattimar, 111 S.E. 510, 90 W.Va. 559. (1922).

 

Concurrence with this conclusion is found in the archives of the Supreme Court:  "In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher For good or for ill, it teaches the whole people by its example. Crime is contagious If the Government becomes a lawbreaker, it breeds contempt for law: it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means - to declare that the Government may commit crimes in order to secure the conviction of a private criminal - would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face." Olmstead v US, 277 US 438, 485. (dis op 1928).  This dissenting opinion was a significant factor in the adjudication of Katz v US, 389 US 347 when Olmstead was held in disfavor.

 

Today, the crisis is not between blacks and whites; it has been replaced with the IRS demanding punishment upon those who are informed they are taxpayers---but no accusatory law will be cited in the indictment by those who so vociferously clamor for the incarceration of the avowed miscreant.  And the federal courts are making a standing practice of the lynching.

 

The ultimate question before this court is whether 800 years advancement of civilized jurisprudence must yield to the whim of the IRS for expedited extortion of revenue under color of law. We cannot use the phrase "collection of taxes" until the citizen is confronted with a statutory duty to pay a tax and an opportunity to challenge that contention The only difference between organized crime and the IRS is that the IRS has the blessing of the courts.

 

SUMMARY

 

Since there is no statute identifying a lawful duty in the indictment as required by:

            1) due process of the 5th. Amendment;  

            2) the “nature and cause of the accusation” clause of the 6th. Amendment and by;   

            3) Article III, section 2 of the Constitution extending jurisdiction to cases,

it is conclusive the defendant has not been charged with the violation of a lawful duty. If the defendant has not been charged with violating a lawful duty, there has been no crime charged.  If there is no crime charged, there is no criminal case.  If there is no criminal case, there is nothing before this court to exercise jurisdiction over Therefore the indictment must be dismissed for failure to charge an offense.

 

It is further requested this court declare the FRCrP 7 (c)(3) provision that “a citation’s omission is (not) a ground to dismiss the indictment or information or to reverse a conviction.” and authorizes a judge to exercise jurisdiction from a form identified as an indictment that does not cite a statute imposing a legal duty upon the defendant is an unconstitutional and an unenforceable provision.

 

 

Signed (In Propria Persona), dated, served