Loading ...
Sorry, an error occurred while loading the content.


Expand Messages
  • rebel382003
    (CAPTION) MOTION TO SET ASIDE THE VERDICT FOR FAILURE TO CHARGE AN OFFENSE The Defendant, _____________________, by and through counsel, respectfully Moves the
    Message 1 of 1 , Dec 5, 2007


      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
      an accusation.

      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,
      unidentified requirement.

      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
      7203." ?

      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
      FSup 310.

      Liquor law violations were punished by §7201, §7203 or §7206 in
      prosecutions for untaxed distilled spirits in Wilson v US, 320 F2d
      493; US v Cook, 412 F2d 293; US v One Ford, 304 F2d 419; US v
      Champion, 387 F2d 561; Benefield v US, 370 F2d 912; US v Davis, 369
      F2d 775; US v Goss, 353 F2d 671; Hyche v US, 286 F2d 248; Ingram v
      US, 241 F2d 708; Dowling v US, 249 F2d 746; Brown v US, 253 F2d 587;
      West v US, 259 F2d 868; O'Neal v US, 273 F2d 549; Tucker v US, 279
      F2d 62; King v US, 282 F2d 398; Monnette v US, 299 F2d 847;
      Blumenfield v US, 306 F2d 892; US v Denton, 307 F2d 336; US v One
      Pontiac, 308 F2d 893; US v Lemons, 309 F2d 168; US v Ivey, 310 F2d
      229; Davis v US, 385 F2d 919; US v Rector, 488 F2d 1079. The "known
      legal duties" are found in Chapter 51. Chapter 75 does not identify
      that responsibility.

      §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
      F2d 981.
      A violation of concealing property from levy was punished by §7206
      in US v Bergman, 306 F2d 653.

      This list is not exhaustive. 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
    Your message has been successfully submitted and would be delivered to recipients shortly.