LIBERTY -- YOUR RIGHT TO MAKE A LIVING

Copyright© 2004, Jim Carter

PART 7:

PETITION FOR CERTIORARI

The habeas corpus action of Part 5 has been field tested and has been declared by the court to not present a constitutional question. The district court denied a certificate of appealability.  The circuit court, after three months and the submitting of two mandamus actions to the supreme court, also denied the COA.
Will certiorari be granted?  The possibility is very remote.  Only a massive number of litigants, exposing their awareness that it is the judicial system that is breaking the law, may eventually compel the supreme court to consolidate the cases and address the issue.
Consolidation was successful in removing segregation in schools. Brown v. Topeka Board of Education. Several individuals have expressed interest in filing habeas actions and others have indicated an interest in filing motions to dismiss indictments for failure to state a cause of action.  The number completing the actions is not known to be adequate.
The following article is the ARGUMENT section from the petition for certiorari.

PETITIONER’S ANALYSIS (ARGUMENT)

The Circuit Court denied the Application for a Certificate of Appealablity with the statement “Petitioner failed to make a substantial showing of the denial of a federal constitutional right.” (Exhibit __ ) The brevity of the Order requires that we utilize the district court’s Order of denial for what must be assumed to be the detailed basis for the denial.

The District Court’s Order Denying a Writ of Habeas Corpus with Memorandum (Exhibit __ ) made two declarations to justify the denial. The first point chided the prisoner for asserting the indictment did not aver a statute imposing liability upon the accused--that "an indictment, citing 26 USC #7203 (or #7201), fails to identify the statute that makes an individual liable for an income tax." (paraphrased slightly for clarity). This court has consistently declared that an accused must have a legal duty imposed upon him, and to have violated that legal duty, before he can be considered a putative criminal. Smith v. O’Grady, 312 US 329 (1941). Additionally, notice of those conditions must be made in the indictment or the indictment is fatally flawed. Cole v. Arkansas, 333 US 196 (1947); Jordan v. De George, 341 US 223 (1951).

The district court’s conclusion that liability is expressed in the indictment contrasts with numerous holdings of various appellate courts.

In Ficalaro v. CIR, 751 F.2d 85, the 2nd Circuit declared IRC #1 and #61 was responsible for liability.

In US v. Bowers, 920 F.2d 220, the 4th. Circuit declared #6012 requires payment.

In Stelly v. CIR, 761 F.2d 1113, the 5th. Circuit declared #61(a) made the individual responsible.

In US v. Pederson, 784 F.2d 1462, the 9th. Circuit relied upon #1 and #6012 to make the individual liable. In US v Vroman, 975 F.2d 669, the 9th. Circuit declared it was not necessary to cite IRC §6012 to impose liability.

In US v. Moore, 692 F.2d 95, the 10th. Circuit declared IRC #1 and #6012(a) made the defendant responsible for the income tax. In Charczuk v. CIR, 771 F.2d 471, the 10th. Circuit declared #1 and #61 made the taxpayers liable for the income tax.

This list of court declarations is surely not exhaustive. The limited access by the prisoner to source data and the ‘not for publication' of almost all income tax cases, in addition to removal of criminal cases by the Justice Department from PACER availability, unquestionably curtails the list. Numerous defendants have voiced similar challenges in court; many, including at least one lawyer, are now in confinement.

While not conclusive in 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. Contention: Payment 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.

In the Congressional Research Report FREQUENTLY ASKED QUESTIONS CONCERNING THE FEDERAL INCOME TAX prepared for members of Congress, it is declared IRC §§1, 61, 63, 6012 and 6151 "working together, make an individual liable for income taxes." Page number varies on different publications.

In a current action by the Disciplinary Board of the Internal Revenue Service to remove the privilege of Mr. Joseph Banister to represent citizens before the IRS, the Amended Complaint declares “(Mr. Banister) was required by 28 USC.## 1, 6011(a), 6012(a) et seq., 6013, and/or 6072(a) to file an individual Federal income tax return (Form 1040)…”

Mr. Dick Simkanin is currently being prosecuted in Fort Worth federal court for income tax violations. The court has adamantly refused to allow or hear any challenge to the legal adequacy of the indictment to be presented to the court or to the jury. This is the modus operandi of a multitude of income tax cases. Lawyers are threatened with sanctions if they present questions about the statutory liability for an income tax. Mr. Irwin Schiff fired his lawyer after the lawyer was intimidated by the judge and refused to challenge liability. At least one lawyer is now incarcerated without an answer; another lawyer is facing criminal charges. A senior representative for the IRS declared during a September 19, 2003 press conference that individuals who question the statutory source of legal liability for an income tax should anticipate criminal charges.

The appellant repeatedly questioned IRS witnesses during trial as to what law made him legally responsible for the income tax. No answer was forthcoming. The exasperated judge finally queried the prosecutor what law imposed liability. The prosecutor responded: “Section 6012(a) imposes liability.” This court has declared indictments that require substantive averments to be filled in after issuance are invalid. Russell v United States, 369 US 749, 766; Rabe v. Washington, 405 US 313 (1972).

None of the various statutes declared to impose liability in the above listing are found in the indictment. The Memorandum by the trial court that the indictment contains a statute that imposes liability/legal responsibility on the appellant does not concur with the above sources.

The  MEMORANDUM of the district court continues, after reproducing #7203, and declares an indictment must contain the "statute, rule, regulation, or other provision of law that the defendant is alleged to have violated," and concludes #7203 informs the petitioner of "his specific tax obligation (required to pay income tax)." Such a position is untenable.

In Grosso v. US, 390 US 62, the Supreme Court addressed an issue of willful failure to pay wagering tax (IRC 4401) and willful failure to pay an occupational license tax (IRC 4411). ‘Willful failure' is not described in either of the two cited statutes. Willful failure came from 7203.

In Ingram v. US, 360 US 672, the Supreme Court case utilized #7201 and #7203 to punish
violators of #4401, #4411, and #4421. Ref. footnote #1.

In Tyler v. US, 397 F.2d 565, #7203 was used to convict the defendant of willful failure to file excise tax returns required by #4401 and #4411. The same or similar result is in US v. Stavros, 597 F.2d 108; Edwards v. US, 321 F.2d 324; US v. Sams, 340 F.2d 1014; Scaglione v. US, 396 F.2d 219; US v Magliano, 336 F.2d 817; Rutherford v. US, 264 F.2d 180; US v. Gaydos, 310 F2d 833; US v. Sette, 334 F.2d 267; US v. Simon, 241 F.2d 308; US v. Wilson, 214 FSup 629.

In US v. Willoz, 449 F.2d 1321, #7206 was relied upon for a conviction of willfully making a false statement on a wagering form required by #4412 and #4401.

But wagering forms and occupational licenses are not the only past application of §7203 or §7206. In US v. Cook, 412 F.2d 293, both statutes were addressed by the court in a prosecution for untaxed distilled spirits. Similar applications are found in US v. Champion, 387 F.2d 561; Benefield v US, 370 F.2d 912; US v. Davis, 369 F.2d 775; US v. Goss, 353 F.2d 671; Hyche v US, 286 F.2d 248; Ingram v. US, 241 F.2d 708.

In US v. LaHaye, 548 F.2d 474, the court declared the required filing of race track forms could have been charged with a misdemeanor under §7203 or a felony under §7206. Similar gambling regulations used the same statute in US v. McGee, 572 F.2d 1097; US v. Snyder, 549 F.2d 171; US v. Dumaine, 493 F.2d 1257; US v. Kessler, 449 F.2d 1315; US v Haimowitx, 404 F.2d 38; US v. Salerno, 330 F.Sup 1401.

Are wagering, occupational licenses, distilled spirits, or race track forms the only tax violations that can be brought by provisions of Chapter 75, including §7201 through §7209 ? Of course not. §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 §7203 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.

It is submitted a lone citation of Section 7203, or 7201, or 7209, within an indictment has been conclusively confirmed by federal appellate courts, by IRS documents, and by Department of Treasury documents, to not include the statute imposing liability for an alleged income tax. It is further conclusively evidenced by federal adjudication that Section 7203, or 7201, does not identify what tax of many potential taxes is being pursued. The question becomes one of the legal standing of an indictment that does not aver a statute that imposes liability or identify what tax is being pursued.

CONSTITUTIONAL RIGHTS VIOLATED BY AN
INDICTMENT WITHOUT AN AVERMENT OF LIABILITY

The Fifth Amendment mandates that all judicial proceedings proceed by due process, and judges take an oath of office to uphold the constitution. Any government employee who breaks the law, or violates their oath of office, does not act as a government employee but acts only as a private citizen. Any action taken by a government employee during the violation of their oath of office, or of the law, is not a government action and has no legal affect.

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 the fundamental elements 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).

“(T)he record of his conviction should show distinctly, and not by inference merely, that every step involved in due process of law, and essential to a valid trial, was taken in the trial court; otherwise, the judgment will be erroneous.” Crain v. US, 162 US 625, 645.

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 statutory responsibility on the defendant, which is far less than the required averment of constitutional authorization.

The Supreme Court, in reversing a conviction that did not identify the defendant as the guilty culprit, 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) citations omitted. 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. A substantive violation of due process nullifies any claim to lawful action.

In condemning an ambiguous 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. We have seen the circuit courts in the income tax cases listed above cite whatever statute they choose to ‘fill in the gaps’ and conclude a law has been violated. The practice is not compatible with Supreme Court holdings.

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). “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). 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; Thornhill v. Alabama, 310 US 88, 96.

In the Vachon v. New Hampshire case, the court determined that a substantive violation of due process merely invalidated the judgment of the court. Other cases cited above involve the lack of a law in the indictment and 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. 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.

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 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 ruling was incorporated into Federal Rule of Criminal Procedure 7(a). In US v. Miller, 471 US 130, at 140, the court quoted approvingly: “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.” from Stirone v. US, 361 US 212, 217.

Would an individual wish to suggest the contemporary claim that a minor irregularity, in the eye of a skeptic beholder, would not ‘prejudice’ the petitioner? The status of ‘prejudice,’ as an issue relevant to a challenge to jurisdiction, has already been declared a non sequitur. Kelly v. US, 29 F3d 1107, 1113-1114; Harris v. US, 149 F3d 1304, 1308; Patton v. US, 281 US 276, 292.

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 as in the Smith case. The Magna Carta’s declaration of protection by “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 there is no law requiring an affirmative declaration of the law imposing the tax, 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; it is impossible to prove that a law 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. 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). 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 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. “The power to create presumptions is not a means of escape from constitutional restrictions.” Bailey v. Alabama, 219 US 219, 239.

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 adamant refusal to declare in court documents and in testimony, 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. The statutes, prior to the 1954 revision, repeatedly required the accused be shown “liable by law.” It is not mere oversight on the part of the IRS to not allege a statute that imposes a legal liability on the citizen. It is a deliberate and premeditated institutional practice of more than 40 years.

"...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.

If we were to conclude that no law 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 concur should be the duty of the accused then becomes sufficient authority to imprison the accused? Is this not an obvious case of a “government of men” and not a “government of 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 sentences 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).

Today, the crisis is not between blacks and whites; it has been replaced with the IRS against those who are informed they are taxpayers---but no 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.

"…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).

The right to be notified of a law allegedly violated and the opportunity to defend against the charge is of no less constitutional moment than the right to counsel in the Zerbst case. Since the indictment failed to state an offense and a crime has not been charged, the judgment must be vacated and set aside. Cole v. Arkansas, 333 US 196; US v. Osiemi, 980 F.2d 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. Kaufman v US, 394 US 217, 222. Nor does a guilty plea confer jurisdiction upon a court. Machibroda v. US, 368 US 487; Albrecht v. US, 273 US 1. Jurisdiction is acquired by statutory authorization and valid process but not by a plea.

Courts indulge every reasonable presumption against waiver of fundamental constitutional rights. Aetna Insurance Co. v. Kennedy, 301 U.S. 389, 393; Hodges v. Easton, 106 U.S. 408, 412. Nor do they presume acquiescence in the loss of fundamental rights. Johnson v. Zerbst, 304 US 458; Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292, 307.

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). There may be a heavy presumption against validity where a right is explicitly secured by the constitution. Harris v. McRae, 448 US 297 (1979); Capital Cities Media v. Toole, 463 US 1301 (1983).

CONCLUSIONS

It is submitted the constitutional right to due process as adjudicated and established by this court has been conclusively evidenced to have been violated to incarcerated the appellant, and similar violations are being widely condoned by appellate courts through out the United States. The violation is submitted to be readily apparent to knowledgeable jurists and non-professionals and clearly fulfills the requirement described in Slack v. McDaniel, 529 US 473.

The only fair procedure would be for this court to issue a Writ of Habeas Corpus pursuant to 26 USC #2241. INS v. St.Cyr, 121 SCt 2279; Ex parte Republic of Peru, 318 US 578, 583; Ex parte Bollman & Swartwout, 8 US 75, 100.

In the alternate, this court should remand the case to the circuit court with instructions to issue a certificate of appealability pursuant to 28 USC ##1254 (1) and 2255 with a release of the prisoner pending review instanter.

Are pro se habeas actions still reviewed with greatest liberality? Boag v. MacDougall, 454 US 364.

I affirm under penalty of perjury that all facts stated herein are true and correct to the best of my knowledge.

I. R. Prisoner , No:____ s/ date

Address,

City.

Phone

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.

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jcarter@snappyisp.com

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

Part 5  | Part 6  | Part 8