MOTION TO SET ASIDE THE VERDICT FOR FAILURE TO CHARGE AN OFFENSE
The Defendant, _____________________, by and through counsel,
respectfully Moves the court pursuant to FRCrP 12(b)(2) to set aside
the Verdict for failure of the Information to charge an offense.
It is established that an indictment for a tax issue must identify
a "known legal duty" to be valid. United States v. Pomponio, 429
US 10; Cheek v US, 498 US 192. The requirement of a known legal duty
is jurisdictional that can never be waived. Freytag v CIR, 501 US
868, 896; Bowen v Johnston, 306 US 19, 24; Machibroda v US, 368 US
487; Kaufman v US, 394 US 217, 222. Legal process that does not
identify a crime is void from its inception . Moore v Dempsey, 261
US 86; Patton v US, 281 US 276. "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." US v
White, 258 F3d 374, 379 (5th Cir 2001). An information has no less
requirement for the averment of a legal duty to have been violated
than does an indictment; a violation of a law is indispensable for
It is additionally established that the defendant has no necessity
to discredit potential inferences or presumptions of
responsibility. Due Process requires the plaintiff in a criminal
proceeding to carry the burden of proof of a valid established
authority duly legislated, succinctly and clearly averred in the
pleading, and submitted to contestation.
"Convictions generally have been sustained as long as the proof upon
which they are based corresponds to an offense that was clearly set
out in the indictment
Deprivation of such a basic right (to be
tried only on charges presented in an indictment) is far too serious
to be treated as nothing more than a variance and then dismissed as
harmless error." US v Miller, 471 US 130, 136, 140 (1985); Russell v
US, 369 US 749, 770-771;
Cole v Arkansas, 333 US 196; Speiser v Randall, 357 US 513, 529;
First Unitarian Church v Los Angeles, 357 US 545.
And where in the instant Information have the requirements of Due
Process to identify an offense been manifested ???
The Plaintiff avers in each of the four courts that the
defendant "was required by Title 26, United States Code, and by
regulations made under the authority thereof, to make a federal
income tax return." This declaration is multiple self-serving
conclusions of law that has no standing. Fernandez-Montes v Allied
Pilots Ass'n, 987 F2d 278, 284 (5th. Cir. 1993); Ryan v Scoggin, 245
F2d 54; Blackburn v Fisk Univ, 443 F2d 121; Pauling v McElroy, 278
F2d 252; Columbia v Tatum, 58 F3d 1101; Wag-Aero v US, 837 FSup
1479, affm. 35 F3d 569. Moreover, any regulation, even if
identified, does not establish a legal requirement.
Each count additionally alludes to a "minimum filing requirement"
which is another self-serving conclusion of law. It has no
standing. If such a requirement exists, Due Process requires the
plaintiff to aver the statutory requirement and submit it to
contestation with the plaintiff carrying the burden of proof. A
defendant has no necessity to assume and defend from a nebulous,
The paragraph continues to again claim the defendant failed to file
a return "as required by such law and such regulation." Again, this
is a legal conclusion that has no standing. Or is this a reference
to the hanging phrase that is projected to constitute a subsequent
paragraph: "In violation of Title 26, United States Code, Section
Is the plaintiff attempting to infer Section 7203 establishes a
legal requirement for the defendant to file a return for an income
tax ? Assuming this is what the plaintiff intends, such an
conclusion cannot be supported. Section 7203 does not mention an
income tax, a filing requirement, or even who---upon what conditions-
-- might be required to perform such an act. The courts have further
repeatedly evidenced a conclusion of such a requirement would be
In reviewing whether 26 USC §7207 could be applicable to the
offense at bar, the Supreme Court declared, upon review of the 1954
Congressional Record legislation of Part I of Chapter 75: "Congress
specifically stated that it placed all these provisions (26 USC
§7201 through §7217) in the same part of the Code because it wished
them to apply to taxes generally, including income taxes." Sansone
v United States, 380 US 343, 348 citations omitted. By the words of
the Supreme Court and Congress itself, a citation of Part I of
Chapter 75 does not identify a specific tax the defendant can
violate. The citation in the instant information therefore cannot
identify a "known legal duty" for any tax.
Concurring evidence abounds in case law.
In Grosso v US, 390 US 62, the Supreme Court addressed an issue of
willful failure to pay a wagering tax (IRC §4401) and willful
failure to pay a gambler's occupational license tax (IRC §4411).
Willful failure is not mentioned in either of the two cited
statutes. Willful failure came from §7203. "Those LIABLE for
payment of that tax are REQUIRED to submit each month Internal
Revenue Service Form 730 . . . failure to pay the excise tax and to
FILE A RETURN are separately punishable under 26 USC §7203." id 65,
emphasis added. Notice should be taken that the known legal duties
of those "required, liable" and the requirement to "file a return"
are identified within Chapter 35 (§4401 to §4424) while punishment
is established by §7203.
Marchetti v United States, 390 US 39, also involved an offense
punishable by §7203 for violations of gambling tax statutes. "The
second indictment included two counts: the first alleged a willful
failure to pay the occupational tax, and the second a willful
failure to register, as required by 26 U.S.C. 4412, before engaging
in the business of accepting wagers." id, 40-41. Note that the
statutory requirements of a "known legal duty" are again "required"
within the gambling tax statutes. Willful failure as a conditional
requirement for imposition of a specific punishment comes from §7203.
In Ingram v US, 360 US 672, the Supreme Court reviewed utilization
of §7201 and §7203 to punish violation of §4401, §4411, and §4421
wagering tax provisions. id, Footnote #1. The court
declared: "Liability for the federal tax is imposed by §4401 and
4411 of the IRC
" id 675. The "known legal duty" was within Chapter
35; it was not in Chapter 75.
Punishment via §§7201, 7203, and 7206 for violations relating to
wagering taxes was also imposed in US v Sheer, 278 F2d 67; Burks v
US, 287 F2d 117; US v Shaffer, 291 F2d 689; US v Minker, 312 F2d
632; Bohn v US, 260 F2d 773; US v Claney, 276 F2d 617; US v
Stoffey, 279 F2d 924; Application of Leahy, 298 F2d 233; George v
US, 346 F2d 137; US v DiPrimio, 209 FSup 137; US v Nicholas, 224
Liquor law violations were punished by §7201, §7203 or §7206 in
prosecutions for untaxed distilled spirits in Wilson v US, 320 F2d
493; US v Cook, 412 F2d 293; US v One Ford, 304 F2d 419; US v
Champion, 387 F2d 561; Benefield v US, 370 F2d 912; US v Davis, 369
F2d 775; US v Goss, 353 F2d 671; Hyche v US, 286 F2d 248; Ingram v
US, 241 F2d 708; Dowling v US, 249 F2d 746; Brown v US, 253 F2d 587;
West v US, 259 F2d 868; O'Neal v US, 273 F2d 549; Tucker v US, 279
F2d 62; King v US, 282 F2d 398; Monnette v US, 299 F2d 847;
Blumenfield v US, 306 F2d 892; US v Denton, 307 F2d 336; US v One
Pontiac, 308 F2d 893; US v Lemons, 309 F2d 168; US v Ivey, 310 F2d
229; Davis v US, 385 F2d 919; US v Rector, 488 F2d 1079. The "known
legal duties" are found in Chapter 51. Chapter 75 does not identify
§7201, §7203, or §7206 were used to punish the failure to file
excise tax returns on wagers required by §4401 and §4411 in Tyler v
US, 397 F2d 565; US v Stavros, 597 F2d 108; Edwards v US, 321 F2d
324; US v Sams, 340 F2d 1014; Scaglione v US, 396 F2d 219; US v
Magliano, 336 F2d 817; Rutherford v US, 264 F2d 180; US v Gaydos,
310 F2d 883; US v Sette, 334 F2d 267; US v Simon, 241 F2d 308; Clay
v US, 246 F2d 298; Merritt v US, 248 F2d 19; Field v US, 263 758;
Barnhill v US, 279 F2d 105; Rosen v US, 293 F2d 938; US v Woodson,
303 F2d 49; US v Nicholson, 303 F2d 330; US v Brooks, 303 F2d 851;
US v Marchointe, 309 F2d 435; US v Whiting, 311 F2d 191; US v
Viale, 312 F2d 595; US v Grossman, 315 F2d 94; US v Wilson, 214 FSup
629. The "known legal duties" are found in Chapter 35. Punishment
was imposed as authorized by Chapter 75.
Violations of the required filing of race track forms could have
been charged with a misdemeanor under §7203 or a felony under §7206
according to the court in US v LaHaye, 548 F2d 474. Similar gambling
violations used the same punishments in US v McGee, 572 F2d 1097; US
v Snyder, 549 F2d 171; US v Dumaine, 493 F2d 1257; US v Kessler, 449
F2d 1315; US v Haimowitx, 404 F2d 38; US v Willoz, 449 F2d 1321; US
v Salerno, 330 FSup 1401.
A violation of §4461 coin operated gaming devices statute was
punished by §7203 in US v Menk, 260 FSup 784. The "known legal duty"
is found in Chapter 36.
Violations of corporate/employment tax requirements resulted in
punishment by §7201, §7202, §7203 or §7210 in Van Allen Co, v US,
422 US 617; Gundlach v US, 262 F2d 72; US v Mollet, 290 F2d 273; US
v Stevedores, 310 F2d 47; Botta v Scanlon, 314 F2d 392; Ryan v US,
314 F2d 306; US v Becker, 259 F2d 869; US v Rothbart, 723 F2d 752.
Tax preparer violations were punished by §§ 7201, 7203, and 7206 in
US v Mesheski, 286 F2d 345, and US v Barnes, 313 F2d 325.
A sugar tax violation was punished by §7203 in Call v US, 265 F2d
An estate tax violation was punished by §7207 in US v Alker, 254 F2d
A marijuana tax violation was punished by §7206 in US v Alvere, 470
A violation of concealing property from levy was punished by §7206
in US v Bergman, 306 F2d 653.
This list is not exhaustive. Its purpose is to merely show that the
provisions of Chapter 75, and specifically §7203, have been
utilized for the prosecution of a multitude of Title 26 offenses
other than what the prosecution would have this court assume and
apply. The "known legal duties" for the offenses within the above
list have not been contained within Chapter 75, nor can Chapter 75
be used to identify any legal duties specifically for an income
tax. A conclusion that Chapter 75 identifies the required "known
legal duty" for an income tax, as contended by the prosecution, is
totally incompatible with the above case law.
It is a "well-settled rule that the citizen is exempt from taxation
unless the same is imposed by CLEAR AND UNEQUIVOCABLE language, and
that where the construction of a tax law is doubtful, the doubt is
to be resolved in favor of those upon whom the tax is sought to be
laid..." Spreckles Sugar v McClain, 192 US 397 emphasis added. And
again: "The (revenue) statute was evidently drawn with care. Its
language is plain and unambiguous. What the government asks is not a
construction of a statute, but, in effect, an enlargement of it by
the court, so that what was omitted, presumably by inadvertence, may
be included within its scope. To supply omissions transcends the
judicial function." Iselin v U.S., 270 US 245, 250-251; West
Virginia University Hospital v Casey, 499 US 83, 101 (1991). In the
instant case, the prosecution does not want the court to merely
construct an ambiguous statute in a favorable manner or enlarge a
statute that might be overly restrictive, but wants the court to
conjure and assume numerous statutes in their entirety for multiple
legally imposed responsibilities---after the trial where the
prosecution has been relieved of the burden of proof and the
assumptions cannot be contested. Such an act is not supported by any
holding, or dicta, of the supreme court. No appellate court condones
such an action except for income tax cases.
All we have in the instant case is a naked accusation without any
statutory foundation. If the only thing necessary for establishing
the existence of a legal responsibility is the whim of the
prosecutor, there is no reason for a judicial proceeding. The whim
can equally prearrange requirements of culpability even to where an
accusation is conclusive evidence of guilt. Due Process would be
set back 2000 years to Roman law.
The necessity of being informed of a known legal duty has been
expressed by the court.
"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). In the instant
information, we are not faced with a lack of a statute that gives
notice of a lawful duty before an act is done; we are instead
looking for a law that describes a mandatory responsibility before
conviction. The prosecution implicitly asks the court to assume
such a law exists but refuses to identify it and submit it to
contestation. And again: "Conviction upon a charge not made would be
sheer denial of due process." De Jonge v Oregon, 299 US 353, 362.
(1937); Dunn v US, 442 US 100, 106-107. "If doubt exists as to the
construction of a taxing statute, the doubt should be resolved in
favor of the taxpayer." Hassett v Welch, 303 US 303, 314. Again,
a request for construction by the Hassett court must rest upon an
identified tax statute that has previously been averred, which has
not been done in the instant case.
This is not a situation were a defendant has been accused of one
crime and convicted of another with "prejudice" being required to
set aside the verdict. Where NO crime has been averred, prejudice
is a non sequitur. Patton v US, 281 US 276, 292; Harris v US, 149
F3d 1304, 1308; Kelly v US, 29 F3d 1107, 1113-1114.
Nor can the prosecutor rely upon the provision of FRCrP 7(c)(3) that
authorizes criminal process without a statutory citation. The
committee that wrote the provision in 2002 relied upon the two cases
of Williams v US, 168 US 382 (1897) and US v Hutcheson, 312 US 219
(1941) as supporting authority for the provision. Scrutiny of the
two cases reveal each case involved the averring of one crime with
the conviction of another crime, and the origin of the prejudice
requirement. They do not support the validity of process that has
NO statutory duty averred. Eight hundred years evolution of Due
Process that no man shall be punished for a crime except "by the law
of the land" cannot properly be reversed by a misleading
representation made by a committee rewriting procedural rules.
The responsibility for a tax can only be imposed by a statute. 26
USC §7203 is the only statute identified in the information and the
above analysis conclusively shows §7203 can apply to numerous
different taxes and to many acts forbidden within each tax. The
citation therefore cannot identify a "known legal duty" that the
defendant may have violated and the information therefore does not
charge an offense.
Without a crime being presented to the court in the information, the
court does not have a "case" before it and the verdict must be set