LIBERTY -- YOUR RIGHT TO MAKE A LIVING

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LIBERTY -- YOUR RIGHT TO MAKE A LIVING

Copyright© 2004, Jim Carter

PART 6:

CORAM NOBIS

The question can be asked:

Is there any way to challenge a conviction on a willful failure to file charge (26 USC 7203) after completion of sentence to remove probation requirements/restrictions, eliminate payment of court imposed fines, restore voting rights and gun ownership, remove a public stigma, improve employment and credit potential, etc.?

Using the legal issues of Part 1 and the analysis of Parts 4 and 5, the answer appears to be ‘yes’ and without any filing fee involved. Even a guilty plea can be challenged if the court did not have jurisdiction. Machibroda v. US, 368 US 487. A motion in nature of Coram Nobis can be filed in the court that sentenced the defendant but would be limited to correcting errors “of the most fundamental character” to “achieve justice” where “no other remedy” is available. The action is authorized pursuant to the All Writs Act, (28 USC 1651(a)), and would be “of the same general character” as one that would be a ground for relief under 28 USC 2255 for Habeas Corpus. US v. Morgan, 346 US 502 (1954).

A form motion could be as follows:

[motion style with district court case number]

MOTION TO VACATE AND SET ASIDE JUDGMENT
AND TO EXPUNGE THE RECORD
IN NATURE OF CORAM NOBIS

The defendant Moves this court to vacate and set aside the judgment and sentence of _____ months imposed by this court on [month, day, year]; to restore full civil rights; and to have notice that the conviction has been vacated and set aside to be published in all legal publications that display a permanent record of this conviction, and to expunge all other records of this conviction; for the good and sufficient cause that the court was without jurisdiction to impose such sentence.

Upon review, the indictment for 26 USC §7203, commonly identified as a charge of willful failure to file, is found to be without any claim the defendant had a statutory duty to the plaintiff and defendant is therefore not charged with violating any legal requirement imposed by law. Without a claim of a statutory duty being violated by the defendant, no crime has been charged (there is no cause stated). The Fifth Amendment mandate that judicial actions shall proceed against a citizen only by due process (the law of the land) has therefore been violated, and since any procedure which violates the constitution is not a government action, jurisdiction has not been vested.

Under penalty of perjury, all statements of fact in this motion and the attached memorandum are declared to be true and correct.

[signed and dated with address and phone number]


[motion style with district court case number]

POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO VACATE AND SET ASIDE JUDGMENT
AND TO EXPUNGE THE RECORD
IN NATURE OF CORAM NOBIS

This Motion is filed pursuant to statutory provisions of 28 USC §1651(a) , the All Writs Act, and FRCrP 12(b)(2) authorizing a challenge to the jurisdiction of the court at any time. US v Stoneman, 870 F2d 102; US v Folak, 865 F2d 110; Telink v. US, 24 F3d 42.

The court will take judicial notice the defendant was sentenced to ____months incarceration for violating Title 26, United States Code, Section 7203, by this court on [month, day, year] and that the sentence was completed on ________.

Coram nobis will lie to “achieve justice” and to correct errors “of the most fundamental character…if the record makes plain a right to relief” when there is “no other remedy available…without limitation of time.” The relief sought should follow in the general manner as in the provisions of 28 USC §2255, and a delay in filing does not deny relief. US v Morgan, 346 US 502 (1954).

It is submitted that a question of jurisdiction being vested in the court during trial is of a “most fundamental character”. The determination of that question could negate the judgment of the court and would, in the opinion of the defendant, “achieve justice.”  There is “no other remedy” available at this time to present the question to the court.

Proceedings in other cases have formulated three conditions for acceptance of coram nobis motions. One condition is that the movant must continue to suffer adverse consequences of the conviction.  It is concluded by some circuit courts that any criminal conviction has inherent adverse consequences.  US v Walgren, 885 F2d 1217; US v Mandel, 862 F2d 1067; Hirabayashi v US, 828 F2d 591. The denial of voting privileges and loss of civil rights, the denial of gun ownership, adverse employment reactions, denial of occupational licenses, the probation restrictions/requirements { etc. } are all adverse consequences that justify coram nobis. Blanton v US, 94 F3d 227; Sibron v New York, 392 US 40; Kyle v US, 288 F2d 440, US v Osser, 864 F2d 1056..

Another condition is that the error complained of must be of a fundamental character. It is submitted that whether the court was legally competent to conduct the judicial proceeding and impose sentence is of a most readily apparent fundamental character.

The third condition is a reasonable explanation why relief was not sought earlier. After recognizing the flaws in the indictment, it does strike this party that professionals reviewing the document should have readily observed the flaws. Why and how the government has been able to obtain convictions with indictments of this form that blatantly violate the requirements of due process---for 40 years and more---is beyond the comprehension of this layperson. Denial of effective counsel has been repeatedly declared to justify an action in coram nobis. If professionals have overlooked the defect for 40 years, it is submitted that this layperson is justified in not seeing the flaw previously.

There are a couple of cases where a superficial reading might suggest a coram nobis action will not lie to challenge a flawed indictment. In Gajewski v US, 368 F2d 533, a coram nobis action challenging a flawed indictment was denied. A reading of the case reveals the same challenge was made during trial proceedings and was rejected. Coram nobis will not lie to relitigate trial issues. In US v Sakamoto, 145 FSup 90, a coram nobis action in the district court of Guam challenging the lack of an indictment was denied. The legislation empowering the district court in Guam, 48 USC §1424, specifically declared the laws of Guam were to be applied and those laws did not include provisions for an indictment.

It may additionally be suggested coram nobis will address “errors in matter of fact only, and not in point of law.” The quotation, from footnote 9, US v Morgan, 346 US 502, continues to declare “if there be error in the process … it may be reversed … by coram nobis.”

Coram nobis actions challenging the adequacy of the indictment were made in US v Norman, 391 F2d 212, and in Sepulveda v US, 244 F.Sup 598. The merits were not persuasive.

Coram nobis can be used to expunge the record. US v Travers, 514 F2d 1171, and may be used to refund a fine. US v Danks, 357 FSup 193.

The court will take judicial notice that the indictment filed on ____________claims the defendant violated Title 26, United State Code, Section 7203 by reason that he had gross income of $_________ and that he did willfully fail to make a tax return “as required by law.” There is no other statute from Title 26 mentioned in the indictment.

The court will also notice that §7203 is an administrative procedure in Subtitle F, PROCEDURE AND ADMINISTRATION that is applicable to all 80 or so taxes the IRS collects. It does not identify what tax is being enforced.

There is no statute/law cited that imposes any type of legal responsibility on the defendant. The only law cited (§7203) is that the IRS/DOJ is empowered to punish individuals who are required to pay taxes. This premise is not challenged.

It appears from a generous reading of the indictment that an income tax has been pursued. The adjective ‘income’ is found before the noun ‘tax.’ Is the defendant supposed to make some legal assumption from that phrase? Defendants cannot be required to make legal assumptions from criminal process.

In brief, the indictment does not charge the defendant with being legally responsible for any tax. This position has been obliquely observed in recent adjudication that might be best to review.

In US v Moore, 692 F2d 95, pro se Moore suggested IRC §7203 was unconstitutionally vague and additionally failed to specify who has to pay an income tax. The trial court prevented such arguments from being made to the jury and the appellate court declared IRC §l and §6012(a) made the defendant responsible for the income tax.

In three appeals by the same lawyer from tax court, the court in Lively v CIR, 705 F2d 1017 declared a claim of “no law imposing an income tax on (Lively)” was without merit while in Ficalaro v CIR, 751 F2d 85 and Charczuk v CIR, 771 F2d 471 the court declared §§1 and 61 made the taxpayers liable for the income tax. Since all three citizens had petitioned tax court, there was no indictment served nor did the 'taxpayer' have standing to challenge the legality of the income tax. A petitioner to tax court cannot make such a challenge. To file a petition in non judicial tax court inherently assumes jurisdiction of the legislative Article I 'court' (not an Article III judicial court) and the legal position of a taxpayer. This is the Roman civil law procedure that is applicable in administrative tax court. To challenge liability for the income tax in appellate court after acquiescence to the status of taxpayer in tax court is an absurd appeal that justified personal sanctions on the lawyer. It might be in the public’s interest to revoke his license. The circuit courts only address error in the trial court (or in the case of tax court, the hearing); appeals are not trial de nova.

In Stelly v CIR, 761 F2d 1113, the court declared §61(a) made the defendant responsible for the income tax.

In US v Pederson, 784 F2d 1462 (1986), the court declared liability was imposed by §§1 and 6012.

In US v Bowers, 920 F2d 220, the court declared IRC §6012 requires payment of taxes.

This list is not exhaustive.

While not holding on this court, we can observe the Treasury Department has recently suggested several statutes impose liability on the taxpayer.  At website "http://treas.gov/irs/ci/tax_fraud/docnonfilers.htm," we find: “The Truth: The tax law is found in Title 26 of the United States Code.  The requirement to file an income tax return is not voluntary and it is clearly set forth in the Internal Revenue Code (IRC) Sections 6011(a), 6012(a), et seq., and 6072(a).” id 7-8. {Earlier editions were at page 4}  At IRS website "http://www.irs.gov/pub/irs-utl/friv_tax.pdf," the publication THE TRUTH ABOUT FRIVOLOUS TAX ARGUMENTS , subsection B. ContentionPayment of Tax is Voluntary declares "the requirement to pay taxes is not voluntary and is clearly set forth in section 1 of the Internal Revenue Code, which imposes a tax …" on page 4 of 32.

It can additionally be shown that the Congressional Research Report titled "FREQUENTLY ASKED QUESTIONS CONCERNING THE FEDERAL INCOME TAX" prepared for members of Congress declares IRC §§1, 61, 63, 6012 and 6151 "working together, make an individual liable for income taxes."  Page numbers vary in different publication dates.

Since different statutes are claimed by various sources to impose legal responsibility, is there any justifiable reason why legal liability was not declared in the indictment? Of more importance, is the indictment in this case, which does not include a statute declaring legal responsibility for a tax, consistent with fundamental requirements of due process as adjudicated by the Supreme Court to confer jurisdiction upon this court?

The inescapable conclusion is that various sources recognize the requirement that legal responsibility for a tax must be made by statute, and they all offer their favorite statute as the authority. It is a violation of due process if a taxpayer has to guess what law makes him responsible for a tax. "(A) statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." Connally v General Construction Co., 269 US 385, 391 (1926). But the quotation almost misses the real point.  We are not addressing a vague statute.  There is no ‘statute which requires the doing of an act’ averred in the instant indictment, and that “violates the first essential of due process of law.”

It is manifestly obvious the defendant cannot violate IRC §7203.  The section reads: "Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof …" [emphasis added].  The requirement is clearly outside §7203; the defendant cannot violate §7203.  If the defendant is required "under/by this title," then the punishment of §7203 can be pursued by the prosecutor.  §7203 is statutory authorization to prosecute putative taxpayers.  What law "under/by this title" requiring the payment of a tax and making the defendant into a 'taxpayer' has been violated?  The indictment gives no answer.  Concurrence that the legal requirement for the doing of an act is acknowledged to be outside §7203 is evidenced in the circuit court opinions, Congressional Report, and government websites listed above.

Federal Rules of Criminal Procedure 7(c)(1) requires the indictment to “state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated.”  Criminal process must allege every essential element of the offense.  Evans v US, 153 US 584; Hagner v US, 285 US 427; Hamling v US, 418 US 87.  Notification of legal responsibility is "the first essential of due process of law."  Connally v General Construction Co., 269 US 385, 391 (1926).  The notification of legal responsibility "or other provision of law which the defendant is alleged therein to have violated" is not found in the indictment.

The phrase “as required by law” within the indictment is a conclusion of law that is unacceptable in criminal process. In Boyd v US, 116 US 616 (1886), the court observed the succinct statement by Lord Camden: "If it is law, it will be found in the books; if it is not to be found there, it is not law." id 627.  The statement in the indictment, "as required by law," is an implicit acknowledgment that responsibility for an income tax is not within §7203.  All the IRS must do is cite their favorite statute.

"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).

Without a statutory claim that the defendant is legally responsible for paying a tax, the defendant has not been charged with the performance of a legal duty.  If he is not charged with violating a legal duty, no crime has been alleged.  If no crime is alleged, there is no case.  If there is no case, there is nothing for this court to have jurisdiction over.  The above steps are fundamental requirements of due process.  If due process is not followed, the court does not have jurisdiction. "A judgment rendered in violation of due process is void." World Wide Volkswagen v Woodsen, 444 US 286, 291 (1980); National Bank v Wiley, 195 US 257 (1904); Pennoyer v Neff, 95 US 714 (1878).

Due process requires the government 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 §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 legal responsibility on the defendant, which is far less than the required averment of constitutional authorization.

The Supreme Court, in reversing a conviction, stated: "It is beyond question, of course, that a conviction based on a record lacking any relevant evidence as to a crucial element of the offense charged violates due process." Vachon v New Hampshire, 414 US 478 (1973).  The instant application is not to mere evidence as in the Vachon case; it is to accusing the defendant of violating a law, and that accusation is never made.  It is inconceivable that there is a more 'crucial element of the offense.'  Without a claim of a lawful duty being violated, there is no offense; the requirement for evidence is superfluous.

The Supreme Court again reversed a 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.

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 an income 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).  "Conviction upon a charge not made would be sheer denial of due process."  De Jonge v Oregon, 299 US 353, 362. (1937).

Would the lack of a statute averring legal liability constitute harmless error?  Again, let the Supreme Court address the issue.  In Smith v US, 360 US 1, the court held the Fifth Amendment right to an indictment for a capital offense, as restated in Federal Rule of Criminal Procedure 7(a), could not be waived by the defendant and that a proceeding in violation of this constitutional requirement negated the jurisdiction of the court.  (The Supreme Court could not have returned the case for a new trial if jeopardy had attached in the first trial.)  The constitutional right to be left alone unless charged with violating a law (the essence of due process) is no less a constitutional right than being indicted for an infamous crime.  The Magna Carta’s declaration of protection by “law of the land” (the evolutionary origin of due process) can arguably predate 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; 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.  This reversal of our traditional placement of the burden of proof is impossible to overcome; a negative cannot be proven.  It is a violation of due process to require a defendant to prove exclusion from a tax. Unitarian Church v Los Angeles, 357 US 545.  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).

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.  The IRS has a lengthy and consistent track record of refusing to declare in court documents, in correspondence to private citizens, and to members of Congress, a law that imposes an income tax and exposing it to a challenge in court while carrying the burden of proof as required by due process.  "... 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].  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.

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.

"If this requirement of the (Bill of Rights) is not complied with, the court no longer has jurisdiction to proceed.  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, 468 (1938).  Since the indictment failed to state an offense and a crime has not been charged, the judgment must be vacated and set aside.  US v Osiemi, 980 F2d 344 (1993).  A challenge to the jurisdiction of the court is not waived by failure to raise the issue in trial court or on direct appeal. id 345.  Nor is the challenge waived by lack of an appeal.  FRCrP 12(b)(2).

Coram nobis will lie to grant relief available by habeas corpus when lack of custody prevents habeas actions.  Habeas corpus will lie where no offense has been committed.  Strauss v US, 516 F2d 980; Martency v US, 216 F2d 760; Robinson v US, 313 F2d 817; Roberts v US, 331 F2d 502; Martyn v US, 176 F2d 609.  An indictment that does not charge an offense can be discharged by habeas corpus.  Roberts v Hunter, 140 F2d 38; Brock v Hudspeth, 111 F2d 447; White v Levine, 40 F2d 502.  Lack of a valid indictment is cause for release by habeas corpus.  Ex parte Bain, 121 US 1; Ex parte Wilson, 114 US 417.

[signed and dated]


COMMENTS AND NOTATIONS

The 1946 legislative revision of FRCvP 60(b) abolished the coram nobis writ.  The lifeless form was resurrected for criminal post-conviction relief by the 1954 Supreme Court adjudication of US v Morgan, 346 US 502 (1954).  Almost all procedural rules of civil procedure apply to coram nobis actions.

Coram nobis actions are guided by the provisions of 28 USC 2255 for habeas corpus.  Extensive analysis can be found in Federal Practice and Procedure by Wright {KF9619, W7} Criminal Procedure, volume 3, Habeas Corpus §589-602. The one hundred pages include copious annotations.  Federal Procedure, Lawyers Edition {KF 8835, F43} volume 16 Habeas Corpus §§41.372 to 41.544 is also informative, with coram nobis at §§41.545 to 41.576.  Hard core students will find Moore's Federal Practice {KF8820, A313} volume 28, chapter 672.02[2][c] contains detailed citations.  More information is at 39 AmJur2d Habeas Corpus §§145-154 {KF154 A42} with coram nobis at §§227 - 273.  Also see 34 ALR3d 1; 38 ALR Fed 617-677; 53 ALR Fed 762 {KF105, A54}.

Photocopies of the government websites and of the Congressional Report mentioned can be attached as exhibits for the convenience of the court if they are available.  Any attachments should be footnoted in the Motion and the number of pages should be identified; i.e., 1 of 15, 2 of 15, etc., to prevent inadvertent loss.

Coram nobis actions are discretionary for the court.  In legal parlance, the motion is a petition requesting the court to grant a review of the alleged error.  If the motion meets the standards established to authorize coram nobis (review is granted), there will be a hearing on the motion.  If the motion for coram nobis review is denied, the denial (i.e., the motion does not meet standards for review) can be appealed to challenge the ruling.

If the court grants coram nobis review but denies the relief (that the merits of the case do not justify relief), that action can also be appealed.  A Certificate of Appealability is not required to appeal a denial of coram nobis relief.  US v Baptiste, 223 F3d 188.   Notice of Appeal will be filed in district court.  Check the rules.  If denials persist through the circuit court, a Petition for Certiorari may lie with the supreme court, either to compel a review or to reverse an adverse review.

Habeas corpus actions filed under 28 USC 2255 are submitted to the clerk of the court with two copies.  The clerk serves the prosecutor.  It might be wise to confirm this procedure for coram nobis with the clerk.

Coram nobis actions do not have a statute of time limitation; they can be filed any time after release from custody.

DISCLAIMER

This article is not to be considered as legal advice. The case analysis is considered to be accurate but the writer is not responsible for any use made of the information.

This document is copyrighted.

Forward as you wish. Permission is granted to circulate among private individuals and groups, to post on all Internet sites that are not password protected and to publish in full in all not-for-profit publications.

Contact author for all other rights, which are reserved.

jcarter@snappyisp.com

Introduction  | Part 1  | Part 2  | Part 3  | Part 4

Part 5  | Part 7  | Part 8


NOTICE: Jim Carter is not affiliated with Freedom School.
NOTICE: If anything in this presentation is found to be in error a good faith effort will be made to correct it in timely fashion upon notification.
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We may assign, or modify, alter, change this contract, in whole or in part, at any time with or without notice to you. You may not assign this contract, or any part of it, to any other person. Any attempt by you to do so is void. You may not transfer to anyone else, either temporarily or permanently, any rights to use the Freedom-School.com site or material contained within.


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