MOTION TO DISMISS INDICTMENT
FOR FAILURE TO CHARGE AN OFFENSE

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WHERE IS THE "KNOWN LEGAL DUTY"?

Claims that there is no law that establishes liability for an individual income tax have been made for years. Nevertheless, the courts have repeatedly ruled indictments for income tax prosecutions are valid with United States v. Vroman, 975 F.2d 669 (9th Cir. 1992) being a prominent example. A challenge to the indictment for failure to allege a crime has been formatted as a rebuttal to the Vroman opinion. The claims of the Vroman court are concluded to be spurious and do not comply with Supreme Court adjudication for Due Process or the requirements for a valid indictment.


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MOTION TO DISMISS INDICTMENT FOR FAILURE TO CHARGE AN OFFENSE

The defendant is aware that on numerous occasions in various income tax cases challenges that income tax indictments were flawed have been presented to their courts---and the courts have denied the motions as frivolous and have imposed sanctions. If this analysis is frivolous, the defendant is certain the court will identify the error in logic or law and properly chastise this imprudence.

Opinions by courts to uphold indictments are similar, as are the allegations made within the indictments. Indictments typically rely upon Internal Revenue code (IRC) § 7201 or § 7203 as imposing an income tax and make numerous conclusions of law. Because of the similarity, an appellate court Opinion will be examined as representative of the grounds this court might use to dismiss a challenge to the instant indictment.

A bellwether case that compiles considerable discussion is United States v. Norman Leon Vroman, 975 F.2d 669 (9th Cir. 1992). The grounds identified and analyzed by the Vroman court to uphold the conviction are similar to other circuits. But this is a colossal understatement. Vroman has been followed in the First Circuit, the Sixth Circuit, the Eighth Circuit, the Tenth Circuit, in IRS publications, along with copious citations in the Ninth Circuit as authority for the validity of an income tax indictment without the necessity of alleging a statutory duty. Vroman, supra, appears to be single-handedly negating an 800 year bulwark against government oppression, neutering Due Process, directly contradicting Supreme Court adjudication, and extending jurisdiction beyond the constitutional limits of a Case.

The points in Vroman include:

  1. the indictment alleged a known legal duty for an income tax by citing 26 U.S.C. § 7203;

  2. the defendant was proven to be a taxpayer required to file an income tax return;

  3. the defendant was not prejudiced by failure to cite 26 U.S.C. §6012; and

  4. F.R.C. P. 7(c)(3) condones an indictment that alleges an erroneous offense.

Item 1: IRC § 7203 identifies an income tax violation.

Quotes from Vroman, supra, include the indictment must "contain the elements of the offense charged and fairly inform a defendant of the charge…" and "The indictment here set(s) out the elements of section § 7203 with sufficient clarity to apprise Vroman of the charges against him and is drawn with sufficient specificity to foreclose further prosecution upon the same facts."

The requirements established for a valid indictment compose a long history. The essential object behind the evolved verbiage is the historical descendent of 800 years adjudicatory evolution. Few remaining clauses of King John’s forced acceptance of the Magna Carte are as lucid today as the provision within the 39th paragraph: "No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the law of the land." That provision terminated King John’s arbitrary confiscation of wealth under guise of taxation and incarceration under pretext of sedition. It is considered the origin of Due Process. Munn v. Illinois, 94 U.S.113, 123.

When our forefathers penned the Constitution of the United States, the provision was preserved in Article III, Section 2. "The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States…" Any document that does not present a Case to the court does not authorize a use of the power of the court. Muskrat v. United States, 219 U.S. 346. "A ‘case’ must be a form where judicial power is capable of acting on it." In Re Summers, 325 U.S. 561, 567 (1945). A "case" must identify a right of a party for the court to enforce. Calderon v. Ashmus, 523 U.S. 740. An indictment that does not identify a known legal duty to be enforced is not a case "capable of a court acting upon it" that can vest jurisdiction in a court. Osborn v. Bank of America, 22 U.S. 738, 819 (1824). "The question in each case is whether…there is a substantial controversy, between parties having adverse legal interests…" Preiser v. Newkirk, 422 U.S. 395, 401 (1995); Deakins v. Monaghan, 484 U.S. 195, 199 (1988); Lewis v. Continental Bank, 494 U.S. 472 (1990). A case for jurisdictional purposes must create a cause of action. Hill v. Marston, 13 F.3d 1548 (11th Cir. 1994). A case involves the violation of a federal statute. Jairath v. Dyer, 154 F.3d 1280 (11th Cir. 1998). An indictment without an offense does not identify adverse legal interests nor does it identify a putative violation of a federal statute.

A valid indictment is a fundamental component of Due Process. "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… 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 U.S. 196, 201 (1947). And again: "Conviction upon a charge not made would be sheer denial of due process." De Jonge v. Oregon, 299 U.S. 353, 362. (1937); Dunn v. United States, 442 U.S. 100, 106-107. Courts are not authorized to deny constitutional rights.

In addition, the Fifth Amendment also mandates indictments allege an offense for the court to proceed. Ex Parte Bain, 121 U.S. 1 (1887); Stirone v. United States, 361 U.S. 212 (1960).

Terminology has evolved over time. Whether it is called the Law of the Land, a Case, Due Process, a charge, an offense, liability, or a crime, it relates to the same objective. Current verbiage requires a government pursuing a tax obligation to identify a "known legal duty" beholding to the tax agency. Cheek v. United States, 498 U.S. 192 (1991).

Casual readers of the Vroman opinion sometimes believe the court declared a listing of elements eliminates the necessity of alleging a law of the required "known legal duty." Such a conclusion would be inane. Elements are used to prove a variance from a required duty. If no duty is identified, the listing of elements would have nothing to prove.

The term "element" is frequently accepted as synonymous with a fact. However, elements can include both facts and law as obliquely observed by the Vroman court: "26 U.S.C. § 7203 requires the government to prove three elements: (one) the taxpayer was required to file a return…" An object is not a taxpayer unless that status is established by law; any requirement to file a tax return must also be established by law.

Hamling v. United States, 418 U.S. 87, relied upon by Vroman, stated the situation: the indictment must "first contain the elements OF THE OFFENSE CHARGED and fairly informs a defendant OF THE CHARGE against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." id. 117 (emphasis added). And again: "An indictment must set forth each element OF THE CRIME IT CHARGES." Almendarez v. United States, 523 U.S. 224, 228 (1998). emphasis added. Hamling and other Supreme Court Opinions give no support for an indictment that relies exclusively upon elements without a charge being alleged.

A lengthy record of Supreme Court adjudication has unwavering requirement for a charge to be alleged for a valid indictment: Ex Parte Bain, 121 U.S. 1 (1887); Stirone v. United States, 361 U.S. 212 (1960); Russell v. United States, 369 U.S. 749 (1962); U.S. v. Miller, 471 U.S. 130 (1985). "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. United States, 442 U.S. 100, 106 (1979).

The Vroman court, along with numerous other court Opinions, would have us believe the lawful duty is alleged by citing 26 U.S.C. § 7201 or § 7203. Indeed, the Vroman court declared the "…offense of failure to file an income tax return under 26 U.S.C. § 7203 …" But how can § 7203 identify a required known legal duty for an income tax?

The Supreme Court, citing the Congressional Record, has observed Chapter 75, Part 1 (IRC § 7201 through § 7215) apply to all taxes. "Congress specifically stated that it placed all these provisions in the same part of the Code because it wished them to apply to taxes generally, including income taxes. See S. Rep. No. 1622, 83d Cong., 2d Sess., 147; H. R. Rep. No. 1337, 83d Cong., 2d Sess., 108." Sansone v. United States, 380 U.S. 343, 348 (1965).

In U.S. v. Farr, 536 F.3d 1174 (10th Cir. 2008), the Tenth Circuit labeled the provisions as generic. If they are generic and can apply to all taxes, they clearly cannot identify a duty for any specific tax.

But the question still remains: Where did the Vroman court identify the defendant had a duty as a "taxpayer"? Or had taxable income? Or was required to file forms?

Perhaps the uncertainty can be approached by considering the second assertion by the Vroman court.

Item 2: The defendant was proven to be a taxpayer required to file an income tax return.

The Vroman court declared the government must prove, as one of the elements, that "the taxpayer was required to file a(n income tax) return." In addition, the Vroman court declares "section 7203 sets out the elements with sufficient clarity to apprise [defendant] of the [income tax ] charges against him…"

The indictments on behalf of the IRS are repeated conclusions of law based upon assumptions of law, such as: the defendant becomes a "taxpayer" upon accusation; any money received from wages or money deposited in a bank is "taxable income"; that receiving wages or depositing money in a bank establishes a responsibility for an individual to file forms with the federal government. Assumptions or conclusions of law have no standing.

Rumor has it that the constitutional right of an individual to pursue a livelihood as secured within the clause of Liberty includes being paid for that labor and depositing such funds in a bank. Is the exercise of a constitutional right now subject to be purchased at a price or the object of an unidentified revenue tax? Is the exercise of a Constitutional Right now the grounds for incarceration and dispossession if the citizen does not submit to extortion? If that law exists, the element is not alleged and submitted to contestation.

Does receiving funds from exercising the constitutional right to pursue a livelihood become an event that requires forms be filed with the government? Or is such an action now the basis for a criminal act? That substantial element (that would be in direct conflict with the concept of a constitutional right) has not been alleged and submitted to contestation.

Rumor additionally has it that the courts are only concerned with the power to tax. If the power to tax exist, it is not a concern of the court if the tax destroys the object of taxation. As applied to the instant case, if the power to tax income exists then Congress can confiscate 100 percent of a citizen’s earnings and provide for the citizen’s existence only what pittance Congress bestows in their largess. A nation of free sovereign citizens has been reduced to a nation of slaves---by only one law.

If the act or event that makes an individual responsible for an income tax (the known duty) is not identified, the essential element of what must be proven has not even been alleged: By what law (element) has the defendant been alleged to have a legal duty as a "taxpayer"? By what law (element) has the defendant been required to have a legal duty to submit forms to the IRS?? By what law (element) has wages received, or a deposit made, become a taxable value initiating a legal duty to the IRS?? No legal requirement has been alleged that facts can prove. All evidence submitted at trial relate only to assumptions that have been made by the court.

An indictment must set forth each element of the crime that it charges. Almendarez v. United States, 523 U.S. 224 (1998); Russell v. United States, 369 U.S. 749. The Government must prove each element to a jury. Duncan v. Louisiana, 391 U.S. 145, 149 (1968). 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 F.2d 434, 437; O’Brien v. DiGrazia, 544 F.2d 543, 546 n.3. "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." U.S. v. Hooker, 841 F.2d 1225, 1232 (4th Cir 1988) emphasis in original. "The taxing statute must describe the transaction, service, or object to be taxed." U.S. v. Community TV, 327 F.2d 797, 800.

The Vroman court concluded the defendant was a "taxpayer" without any allegation, proof, or submission to contestation. "Taxpayer" is a legal term identifying the object as "subject" to a specific tax. Ref. IRC § 7701 (a)(14). A "subject" is an inferior position. The Supreme Court has declared taxation is a matter of sovereignty, and that over which an agency is not sovereign cannot be an object of taxation. Are the citizens of the United States no longer sovereign? Ref. Carlisle v. United States, 83 U.S. 147, 154 (1873).

Since taxes and legal responsibilities can only be imposed by statute, we must look to the indictment to find the statute alleged to impose that subservient status or a requirement to file forms. The only possible statute identified in the indictment is IRC § 7203. Indeed, the Vroman court identifies § 7203 as the responsible statute. But how can this be?

IRC § 7203 was used in Grosso v. United States, 390 U.S. 62, in the prosecution of gambling violations of IRC § 4401 and § 4411. "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 U.S.C. § 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.

IRC § 7203 was also used in Marchetti v. United States, 390 U.S. 39, for gambling violations. U.S. v. Knox, 396 U.S. 77, 82 (1969) also acknowledged IRC § 7203 could have been used to prosecute wagering violations.

IRC § 7201 and § 7203 were used in Ingram v. United States, 360 U.S. 672, in violations of § 4401, § 4411, and §4421 wagering tax provisions. Ref. 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.

IRC §§ 7201, 7203, and 7206 were also utilized in prosecutions of wagering tax violations by: U.S. v. Merlo, 704 F.2d 331 (6th Cir. 1983); U.S. v. Sheer, 278 F.2d 67; Burks v. United States, 287 F.2d 117; U.S. v. Shaffer, 291 F.2d 689; U.S. v. Minker, 312 F.2d 632; Bohn v. United States, 260 F.2d 773; U.S. v. Claney, 276 F.2d 617; U.S. v. Stoffey, 279 F.2d 924; Application of Leahy, 298 F.2d 233; George v. United States, 346 F.2d 137; Tyler v. United States, 397 F.2d 565; U.S. v. Stavros, 597 F.2d 108; Edwards v. United States, 321 F.2d 324; U.S. v. Sams, 340 F.2d 1014; Scaglione v. United States, 396 F.2d 219; U.S. v. Magliano, 336 F.2d 817; Rutherford v. United States, 264 F.2d 180; U.S. v. Gaydos, 310 F.2d 883; U.S. v. Sette, 334 F.2d 267; U.S. v. Simon, 241 F.2d 308; Clay v. United States, 246 F.2d 298; Merritt v. United States, 248 F.2d 19; Field v. United States, 263 758; Barnhill v. United States, 279 F.2d 105; Rosen v. United States, 293 F.2d 938; U.S. v. Woodson, 303 F.2d 49; U.S. v. Nicholson, 303 F.2d 330; U.S. v. Brooks, 303 F.2d 851; U.S. v. Marchointe, 309 F.2d 435; U.S. v. Whiting, 311 F.2d 191; U.S. v. Viale, 312 F.2d 595; U.S. v. Grossman, 315 F.2d 94; U.S. v. LaHaye, 548 F.2d 474; U.S. v. McGee, 572 F.2d 1097; U.S. v. Snyder, 549 F.2d 171; U.S. v. Dumaine, 493 F.2d 1257; Townsend v. United States, 253 F.2d 461; U.S. v. Kessler, 449 F.2d 1315; U.S. v. Haimowitx, 404 F.2d 38; U.S. v. Willoz, 449 F.2d 1321; U.S. v. Salerno, 330 F.Sup 1401; U.S. v. Wilson, 214 FSup 629, U.S. v. DiPrimio, 209 F.Sup 137; U.S. v. Nicholas, 224 F.Sup 310.

IRC § 7201, § 7202, § 7203, § 7204 or § 7210 were applied in violations of corporate/ employment tax requirements in: Ivan Allen Co, v. United States, 422 U.S. 617 (1975) [IRC § 7201 could be applied to IRC § 531-537, footnote 11]; Gundlach v. United States, 262 F.2d 72; U.S. v. Mollet, 290 F.2d 273; U.S. v. Stevedores, 310 F.2d 47; Botta v. Scanlon, 314 F.2d 392; Ryan v. United States, 314 F.2d 306; U.S. v. Becker, 259 F.2d 869; U.S. v. Rothbart, 723 F.2d 752; Huges v. United States, 899 F.2d 1495 (6th. Cir 1990); U.S. v. Gonzales, 58 F.3d 506, (10th cir 1995) ; U.S. v. Neal, 93 F.3d 219 (6th.Cir 1996); U.S. v. Mounkes, 204 F.3d 1024 (10th Cir 2000).

IRC § 7201, § 7203 or § 7206 were utilized in prosecutions for liquor law violations in: Wilson v. United States, 320 F.2d 493; U.S. v. Cook, 412 F.2d 293; U.S. v. One Ford, 304 F.2d 419; U.S. v. Champion, 387 F.2d 561; Benefield v. United States, 370 F.2d 912; U.S. v. Davis, 369 F.2d 775; U.S. v. Goss, 353 F.2d 671; Hyche v. United States, 286 F.2d 248; Ingram v. United States, 241 F.2d 708; Dowling v. United States, 249 F.2d 746; Brown v. United States, 253 F.2d 587; West v. United States, 259 F.2d 868; O’Neal v. United States, 273 F.2d 549; Tucker v. United States, 279 F.2d 62; King v. United States, 282 F.2d 398; Monnette v. United States, 299 F.2d 847; Blumenfield v. United States, 306 F.2d 892; U.S. v. Denton, 307 F.2d 336; U.S. v. One Pontiac, 308 F.2d 893; U.S. v. Lemons, 309 F.2d 168; U.S. v. Ivey, 310 F.2d 229; Davis v. United States, 385 F.2d 919; U.S. v. Rector, 488 F.2d 1079.

IRC 7203 was used for a violation of § 4461 involving coin operated gaming devices in U.S. v. Menk, 260 F.Sup 784.

IRC § 7201 and 7206 were applied in U.S. v. Pesaturo, 476 F.3d 60, (1st Cir. 2007), U.S. v. Wisenbaker, 14 F.3d 1022 (5th Cir. 1994), and U.S. v. Townsend, 31 F.3d 262 (5th Cir 1994) for violating sections 4041 and 4081 for excise taxes on petroleum products.

IRC § 7201 and 7202 were used for admission tax violations in U.S. v. Nigro, 262 F.2d 783, and U.S. v. H.J.K. Theatre, 236 F.2d 502.

IRC § 7201 and § 7202 were used in Reynolds v. United States, 288 F.2d 78 (1961) in connection with the selling of bolita tickets.

IRC § 7206 was used in violations of sections 4261 and 4291 for air transportation taxes in U.S. v. Nielsen, 1 F.3d 855 (9th Cir. 1993).

IRC § 7203 was used for a sugar tax violation in Call v. United States, 265 F.2d 167.

IRC § 7207 was used for an estate tax violation in U.S. v. Alker, 254 F.2d 292.

IRC § 7206 was used for a marijuana tax violation in U.S. v. Alvere, 470 F.2d 981.

IRC § 7206 was used for concealing property from levy in U.S. v. Bergman, 306 F.2d 653.

This list is not exhaustive.

It is manifestly obvious that the legal duty for each of the cases listed above was not found in Chapter 75. It is equally obvious that if Chapter 75 provisions do not identify the legal duty in the listed cases, neither can they identify a legal duty for an income tax issue.

Without a legal duty being identified in the instant indictment, the instrument is void from its inception and does not present a case to the court for adjudication.

Item 3: The defendant was not prejudiced by failure to cite 26 U.S.C. § 6012 in the indictment

The Vroman court along with other circuits and prosecutors have gone outside of the indictment and volunteered numerous additional statutes claimed to not be necessary. Since the original indictment does not identify a known legal duty, the practice is an attempt to put a putative charge in an invalid indictment. Ex Parte Bain, 121 U.S. 1 (1887) and Stirone v. United States, 361 U.S. 212 (1960) rejected that precise action. The practice further evidences the original indictment contained voids of putative applicable statutes.

It is well determined that courts or prosecutors are not at leisure to amend or add charges to indictments. "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 U.S. 749, 766. Citations omitted; Rabe v. Washington, 405 U.S. 313 (1972).

And again: "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." U.S. v. Miller, 471 U.S. 130, 142-143 (1985) internal citations omitted.

But the Vroman court explains: "Correct citation to the relevant statute, though always desirable, is not fatal if omitted." and also "errors in the citation or its omission shall not be grounds for dismissal of the indictment or reversal of the conviction if the error did not mislead the defendant to his prejudice."

There are several items that should be considered. First, by what authority does the Vroman court make the statement that omission of a statutory duty alleged is not a fatal error in an indictment?? The defendant finds NO support for that conclusion outside of recent appellate income tax prosecutions. In fact, it is directly in conflict with Ex Parte Bain, 121 U.S. 1, 13-14 (1887) and Stirone v. United States, 361 U.S. 212 (1960).

Revenue collection by the Federal government is not exempt from Due Process requirements including the non-broadening of indictments. In Boyd v. United States, 116 U.S. 616, the court rejected an appeal to apply the revenue statute beyond the clear reading of the law. In U.S. v. Carroll, 345 U.S. 457 (1953), the court dismissed the indictment that was not supported by a clear application of the alleged revenue statute: "(E)very citizen is entitled to fair warning of the traps which the criminal law lays." id p. 460.

In fact, the Ninth Circuit rejects its own concept in non-tax cases. In U.S. v. Lo, 231 F.3d 471 (9th Cir. 2000), the court declared: "Failure of an indictment to state an offense is never waived." id 481.

Second, the Vroman court is considering an indictment where the erroneous cited statutory duty is a slight variance. The status of prejudice as an issue relevant to an indictment without any identified offense has been declared a non sequitur. Harris v. United States, 149 F.3d 1304, 1308 (11th Cir 1998); Kelly v. United States, 29 F.3d 1107, 1113 (7th Cir. 1994); U.S. v. Milestone, 727 F.2d 264, 269 (3rd Cir. 1980). In U.S. v. Brown, 995 U.S. 1493 (10th Cir. 1994), the court held an indictment that did not allege essential elements such as not identifying a crime resulted in a void indictment. "The absence of prejudice to the defendant does not cure what is necessarily a substantive jurisdictional defect in the indictment." id 1505, and even the Ninth Circuit agrees in U.S. v. Broadwell, 959 F.2d 242 (9th Cir. 1992).

Jurisdictional errors and constructive amendments via substitution of alternative charges have similar fatal results: U.S. v. Patino, 962 F.2d 263 (2nd cir. 1992); Harris v. United States, 149 F.3d 1304, 1308 (11th Cir. 1998); U.S. v. Adamson, 291 F.3d 606, 616 (9th Cir. 2002); U.S. v. Collins, 350 F.3d 773, 775 (8th Cir. 2003); U.S. v. Narog, 372 F.3d 1243, 1247 (11th Cir. 2004); U.S. v. Mueffelman, 470 F.3d 33, 38 (1st Cir. 2006); U.S. v. Harrill, 877 F.2d 341 (5th Cir 1989). A constructive amendment, often by an erroneous jury instruction to convict a defendant of a crime not alleged, at least had a crime alleged in the indictment. In the instant case, there is NO crime alleged.

When faced with an indictment issued by a grand jury that did not allege a crime, but had been modified by the trial court to identify a crime, the Supreme court established a fundamental premise: "It is of no avail, under such circumstances, to say that the court still has jurisdiction of the person and of the crime for, though it has possession of the person, and would have jurisdiction of the crime, if it were properly presented by indictment, the jurisdiction of the offense is gone, and the court has no right to proceed any further in the progress of the case for want of an indictment. If there is nothing before the court which the prisoner, in the language of the Constitution, can be held to answer, he is then entitled to be discharged so far as the offense originally presented to the court by the indictment is concerned. The power of the court to proceed to try the prisoner is as much arrested as if the indictment had been dismissed or a nolle prosequi had been entered. There was nothing before the court on which it could hear evidence or pronounce sentence." Ex Parte Bain, 121 U.S. 1, 13-14 (1887). Jurisdictional negation removed. U.S. v. Cotton, 535 U.S. 625 (2002).

In Stirone v. United States, 361 U.S. 212 (1960), the supreme court applied the same result for the conviction of an offense not charged in the indictment. "If (the defendant) was convicted of a charge the grand jury never made against him, (it) was fatal error." id 217-219.

The Supreme Court nullified the conviction of a crime that was not charged in the indictment as a violation of Due Process. "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 U.S. 196, 201 (1947).

"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 (including habeas corpus)" U.S. v. White, 258 F.3d 374, 379 (5th Cir 2001), emphasis in original.

Item 4: F.R.Cr. P. 7(c)(3) authorizes an indictment that does not allege a statutory violation.

Vroman considers F.R.Cr. P. 7(c)(3) [herein after the Rule] only as it applies to prejudice from an erroneous cited statutory citation. That premise is not challenged. However, the Rule has been cited in other adjudication to uphold the validity of indictments to challenges of no alleged statutory duty.

It is submitted the instant indictment has been shown to be void of any statutory known legal duty. The Rule will be analyzed as potentially applied to the instant indictment.

F.R.Cr. P. 7(c)(3) reads: "Unless the defendant was misled and thereby prejudiced, neither an error in a citation nor a citation's omission is a ground to dismiss the indictment or information or to reverse a conviction."

By any objective reading, the Rule supports an indictment without any citation of a statutory duty or a known legal duty. The committee that formulated the Rule for Congressional approval relied upon U.S. v. Hutcheson, 312 U.S. 219 (1941) and Williams v. United States, 168 U.S. 382 (1897) to contend the prior cases established that provision. That was a misrepresentation. Both adjudications involved erroneous cited statutory duties.

U.S. v. Hutcheson, 312 U.S. 219 (1941) stated: "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.

In Williams v. United States, 168 U.S. 382 (1897), the court declared: "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.

The Rule is a negation of an 800 year old fundamental right which has been enshrined within our Constitution. The Rule’s destruction of our Right to be confronted with the law alleged to have been violated is in direct conflict with clear and unambiguous adjudication of the Supreme Court quoted herein. It is in conflict with provisions granting jurisdiction to a Case, it is in conflict with established Fifth Amendment requirements for an Indictment and of "Due Process of Law," it is in conflict with the Sixth Amendment provision "to be informed of the nature and cause of the accusation." It is an unacceptable method to amend the constitution and must be declared void.

As declared in Vroman, circuit precedent is not controlling where prior panel did not consider an argument the later panel finds persuasive. U.S. v. Faulkner, 952 F.2d 1066, 1071 n.3 (9th Cir 1991).

OVERVIEW

Let us not be mislead. The lack of a known legal duty within the indictment is not an accidental oversight. It is a deliberate institutional strategy that has been in place for decades. Section One of the 1939 IRC Code addressed "every individual." The 1954 rewriting addressed anyone with "taxable income." Anyone using the tabulated values invoked the implication they had taxable income. An individual’s concept of what the law might have been cannot be used against them. Prior acquiesce to government demands does not establish a legal requirement for an unidentified duty. Only a law can impose a tax, and Due Process requires the law be alleged and submitted to contestation.

It is well established a tax agency pursuing tax litigation has the burden of proof to not only evidence the statute that imposes the tax, but due process also requires the agency to submit it to contestation and to carry the burden of proof as to its validity. Speiser v. Randall, 357 U.S. 513, 529 (1958); Spreckles Sugar v. McClain, 192 U.S. 397. If the agency can avoid identifying putative authority for the tax, any challenge to the tax by the defendant inherently reverses the burden of proof. The court will require the defendant to prove there is no possible way the tax might be valid. That burden of proof is impossible to meet. The placement of the burden of proof may be decisive of the outcome. Cities Service Oil Co. v. Dunlap, 308 U.S. 208.

SUMMARY

A generic statute such as § 7201 or § 7203 cannot identify a known legal duty nor has it ever been so applied in numerous cases involving taxes other than income tax cases. The event that would impose the status of taxpayer on the defendant (an essential element) has never been alleged and put into contestation. Prejudice is an irrelevant consideration for an indictment that does not identify an offense. F.R.Cr. P. 7(c)(3) as written to permit an indictment without a crime alleged is in conflict with fundamental constitutional Due Process and must be declared null and void.

Without a charge in the indictment, the court has no authority to proceed and must dismiss the indictment.

DISCLAIMER: Let nothing written herein, or hereafter verbally presented to the court, be construed or implied that the defendant is making any challenge to the unidentified tax which might allow the court to reverse the burden of proof imposed upon the tax agency by Due Process. The exclusive purpose of this Motion is to determine the statutory "known legal duty" for which the accused is responsible and the consideration of any physical evidence, such as deposits, remuneration for physical services, the existence of government forms, etc., is irrelevant until such legal duty is identified WITHIN THE INDICTMENT and thereby submitted to contestation with the burden of proof as to its validity upon the movant.

John Doe
{address}
{phone number}
{date}
Notice of service


STUDY AIDS

A student of criminal law, familiar with writing and serving motions, might review:

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 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, FEDERAL PROCEDURE, LAWYERS EDITION {KF 8835 F43}
Volume 27, §§ 62.487 to 62.503. 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 Third Edition {KF8820 A313 M63}
§§607.04 and 612.04 are current and excellent.

2001 Criminal Tax Manual  10.00 FAILURE TO FILE, SUPPLY INFORMATION OR PAY TAX

United States v. Philip E. Roberts (8th Cir. 2001)


NOTICE: Unknown author is not affiliated with Freedom School.
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