LIBERTY
YOUR RIGHT TO MAKE A LIVING
Copyright
© 2008, Jim Carter
PART 4: MOTION TO DISMISS INCOME TAX INDICTMENT
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.
**********************************************************************
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
Contact author for all other rights, which are reserved.
Part 4 (Archive 1)
Part 5 (Archive 1)
Part 5 (Archive 2)
Introduction
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Part 5
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8