Lindsey Springer's Supreme Court Petition - Part 2

[Bob Hurt]

-------- Original Message --------

Subject:	Springer's Supreme Court Petition - Part 2
Date:	Tue, 15 May 2012 02:11:24 -0500
From:	Lindsey Springer <gnut...@mindspring.com>
To:	Lindsey Springer <gnut...@mindspring.com>

II.  CONGRESS PLACES THE DUTY TO FILE TAX RETURNS AT SEC. 6091(b).

Congress places the duty to file "Tax Returns" at 26 U.S.C. Sec. 6091(b)(1)(A)(i) and 6091(b)(4).  App. U-3.  Petitioner moved to dismiss due to the President having not established "convenient" IRDs pursuant to 26 U.S.C. Sec. 7621. App. NN.  Petitioner claimed there IRDs had not existed since late 1999.  App. NN-4.  Prosecution agreed but argued the IRDs were not totally abolished until October, 2000.  App. OO-4.

Section 6091(b), subtitled "Tax Returns", reads in part:

     "In the case of returns of tax required under authority of Part II of this subchapter [26 U.S.C. Secs. 6011, et seq.] App.          U-3

The Prosecution alleged Secs 6011 and 6012, App. PP-2, and the Panel identified Sec. 6012.  App. A-8. This undeniably shows the "Tax Returns" were quired under Sec. 6091(b) only.  The Panel switched the requirement to Sec. 6091(a).  App. A-7.  The Panel's 6091(a) requirement regarding "Tax Returns" is in direct conflict with several Circuit Courts.  See Byers v. Intact, Inc., 600 F.3d 286, 293 (3rd Cir. 2009); U.S. v. Garmann, 748 F.2d 218, 219 (4th Cir. 1984); Allnutt v. CIR, 523 F.3d 406, 413-14(4th Cir. 2008); U.S. v. Calhoun, 566 F.2d 969, 973(5th Cir. 1978); U.S. v. Buga, App. Lexis 20967 (6th Cir. 1998); U.S v. Grabinski, 727 F. 2d 681, 684(8th Cir. 1983); U.S. v. Miller, App. Lexis 21468 (8th Cir. 2011); U.S. v. Stuckey, 646 F. 2d 1369, 1378 (9th Cir. 1980); U.S. v Brewer, 486 F.2d 507, 509 (10th Cir. 1973); U.S. v. Taylor, 828 F.2d 630, 634 (10th Cir. 1987).

In each case above, the Courts found Sec. 6091(b), and not 6091(a), the requirement to file "Tax Returns" directed by Congress.  "But if the indictment lay the offense...on an impossible day...the objection is fatal as if no time at all had been inserted."  Ex Parte Baine, 121 U.S. 1, 8 (1887). Without a place there is no failure to "file".  To punish Petitioner in this instance is cruel and unusual punishment.

III.    THE PANEL CHANGE TO SEC. 6091(a) VIOLATES THE FIFTH AND SIXTH AMENDMENTS AS WELL AS ART. III, SEC. 2,          CL.3 & ART. I, SEC. 9, CL.2

The Panel decision changing the Grand Jury's alleged requirement to "file a "Tax Return" under Sec. 6091(b)(1)(A)(i) and 6091(b)(4), to Sec. 6091(a), violates the Fifth Amendment Right not to be held "unless on a...indictment of a Grand Jury" and its prohibition against deprivation of liberty and property without due process.  Petitioner's Sixth Amendment Right to a Jury Trial on the Grand Jury's Indictment is also violated by the same chagne the Panel made from Sec. 6091(b) to 6091(a).  Congress has also provided Petitioner with the right to appeal any adverse decision to the United States Court of Appeals pursuant to Article III, Sec. 2,  Cl. 2, to which the Panel change to Sec. 6091(a), during appeal jurisdiction, does violence.

     A.  Fifth and Sixth Amendment Violations.

The Fifth Amendment prohibits any person be held to answer for any infamous crime unless presented by Grand Jury indictment.  Hamling v. U.S., 418 U.S. 87, 117 (1974).  "An indictment is amended when it is so altered as to charge a different offense from that found  by a grand jury."  U.S. v. Ballard, 322 U.S. 78, 90 (1944); citing Ex Parte Bain, 121 U.S. 1, 8 (1887).  "To uphold a conviction on a chareg that was neither alleged in an indictment nor presented to a jury at trial OFFENDS THE MOST BASIC NOTION OF DUE PROCESS."  Dunn v. U.S. 422 U.S. 100, 106(1979).

            (i)  Language of Grand Jury charges identifies "Tax Returns"

Count One alleges Petitioner was required to file "individual income tax returns" in Para. 6, App. JJ-2, and the object of the conspiracy was to impede, impair, obstruct, and defeat the IRS's "lawful functions" in their assessment and collection of "Federal Income Taxes."  App. JJ-3

The means alleged was premised upon the Grand Jury's claims over Springer's income (para. 10), "Springer's expeneses" (para. 11), "Springer's income" (para. 12 and 13), and that Springer refrained from filing Form 1040 with the IRS (para. 14)(Form 1099s were also alleged by the Grand Jury but conceded during Trial by the Prosecution.)  App. JJ-3

Count Two, Three and Four, allege evasion attempt of the Tax imposed by Title 26, describing the conduct in terms such as "taxable income," "substantial income tax due and owing", and "by failing to FILE a United States Individual Income Tax Return as required  by law."  App. JJ-8.  Count Five and Six allege failure to File "an income tax return" "required by law" at the "local office of the [IRS] at Tulsa, Oklahoma", or at the IRS Service Center at Austin, Texas.  App. JJ-13.

Petitioner was granted two Bills of Particulars.  The first explained the Grand Jury's meaning of "required by law" and the Second defined "regulations thereunder."  (First, App. PP)(Second, App. QQ). Petitioner moved to dismiss due to the impossibility of "filing" "as required by law", from  1999 to present, due to to the IRDs and each IRD's District Director, or designated office of the SOTT therein, being "defunct."  Allnutt, 523 F. 3d at 408 (n.1). App. NN.  Prosecution opposed but agreeing at all relevant times IRDs were "abolished."  App. OO-4

The Prosecution argued however that Sec. 6091(b)(1)(B)(i) governed Petitioner's duty to file Tax Returns since he did not live in any IRD.  App. OO-4.  The District Court held Sec. 6091(b)(1)(A)(i).  App. E-5.

Section 6091(b)(1)(A)(i) directs "filing" "Tax Returns" "in the internal revenue district" of "the legal residence...of the person making the return."  App. U-3; Brewer, 486 F.2d at 509; Taylor, 828 F.2d at 634.  Section 6091(b)(4) directs "Hand Carried returns" "be made in the [IRD] referred to in paragraph (1)(A)(i)...as the case may be."

Section 6091(b)(1)(B)(i) directs "Tax Returns" of "persons who have no legal residence...in any [IRD]...shall be made as such place as the Secretary may be regulation designate."  App. U-3; See Miller, App. Lexis 21468, App. XX (citing Sec. 6091(b)(1)(B)(i).  For calender years 2000 through 2004, a person who did not live in any IRD was to "file" their "Tax Returns" with the District Director in Baltimore, Md.  App. U-13.  Prosecution argued in opposition to dismissal that 26 CFR Sec. 1.6091-2(2005) controlled the requirement to file prior to the First and Second Bill of Particulars.  App. OO-5.  A Bill of Particulars "clarifies," See U.S. v. Hoy, 330 U.S. 724, 730 (1947) and is "amplifying."  U.S. v. Crescent Amusement, 323 U.S. 173, 180 (1945).

In its Second Bill of Particulars the Prosecution explicitly denounced any Treasury Regulations were involved in the requirement to file a Tax Return and omitted Sec. 1.6091-2 from the list of regulations.  App. QQ-3.  The Grand Jury indicted Petitioner under the belief that Petitioner was required to "file" a "Tax Return" without resorting to any Treasury Regulations. The Prosecution changing with the wind on this claim for dismissal shows the Panel's change to Sec. 6091(a) unconstitutional.  The Panel's changes to Sec. 6091(a) is not what the Grand Jury alleged in each Count.  Section 6091(b) is "divorced" from Sec. 6091(a).

Petitioner was not indicted in each Count "for failing to 'file tax returns'" required by Sec. 1.6091-2 in Baltimore, Md. for years 2000 through 2004.  The language the Prosecution uses shows it relied upon Sec. 1.6091-2(2005) for years 2000 through 2005. App. OO-5.  The fact the Grand Jury alleged "Tax Returns" places the requirement under "Part II" which unmistakably falls under Sec. 6091(b), and not 6091(a), as the Panel held. App. U-3.  The Panel's change to 6091(a) deprived Petitioner of his right to appeal the impossibility at issue below regarding Sec. 6091(b).

      (ii).  Due Process requires Notice of the Law and what is intended.

The "duty" or "obligation" the Panel affirmed requiring the "filing" of a "Tax Return" and payment of taxes shown therein owed was not the duty alleged by the Grand Jury.  The Fifth Amendment requires an indictment, Hamling v. U.S., 418 U.S. 87, 117 (1974), and the Sixth Amendment requires a trial and verdict on that indictment.  Booker v. U.S. 543 U.S. 220, 232 (2005).  The "Internal Revenue Code ties the duty to pay Federal Income Taxes to the duty to make an income tax return."  Hollywell v. Smith, 503 U.S. 47, 53 (1992).  The words of  a statute "must be read in their context with a view to their place in the overall statutory scheme."  Davis v. Michigan, 494 U.S. 803, 809 (1985).

The tax system is complex.  Bob Jones Univ. v. U.S., 461 U.S. 574, 596 (1983).  A Statute must be "explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties."  Connelly v. General Const. Co., 269 U.S. 385, 391 (1926).  Fair warning of the conduct prohibited is the test.  U.S. v. Harris, 347 U.S. 612, 617 (1954).  No one is "required...to speculate as to the meaning of penal statutes."  Bouie v. Columbia, 387 U.S. 347, 351 (1964).  The line must be clear.  McBoyle v. U.S., 283 U.S. 25, 27 (1931)

The line must be understandable.  Hill v. Colorado, 530 U.S. 703, 732 (2000).  No word is void.  Duncan v. Walker, 533 U.S. 167, 174 (2001).  There are no "common law crimes."  U.S. v. Easton, 144 U.S. 677, 687 (1892).  The "rule of strict construction [applies] when interpreting [a] regulation or a statute."  U.S. v. Mersky, 361 U.S. 431, 465 (1960).

This case involves multiple statutory construction and the begining is with the "language of the statute."  Estate of Coward v. Nichols Drilling Co., 505 U.S. 469, 475 (1992).  "The Place fixed for performance fixes the situs of the crime."  Johnston v. U.S., 351 U.S. 215, 220 (1956).

"An offense...means the transgression of law."  Moore v. Illinois, U.S. 14 How. 13, 14 L.Ed. 306 at 19 (1852).  The "proliferation of statutes and regulations has sometimes made it difficult for the average citizen to know and comprehend the extent of the duties and obligations imposed by the tax laws."  Cheek v. U.S., 498 U.S. 192, 200 (1991). Congress has made "specific intent to violate the law an element of certain federal criminal tax offenses."  Id.

Each Count alleges Petitioner acted willfully in conspiring to impede the IRS's "lawful functions", attempting to evade the tas imposed by Title 26 regarding taxes on adjusted gross income, and failing to file Form 1040 U.S. Individual Income Tax Returns "as required by law."  App. JJ.  Ignorance of the law is an excuse especially when it is not definite or knowable. Id. at 199.

Count Two, Three, and Four's alleged violation of Sec. 7201 is "calculated to induce...fulfillment of every duty under the income tax law."  Spies v. U.S., 317 U.S. 492, 497 (1943).  Section 7203's willful failure to file Form 1040s is a lessor included offense into each of the Six Counts.  The First Bill of Particulars identified 26 U.S.C. Secs. 6011, 6072, 6091, 6151, and 7203, defining "required by law."  App. PP-2  The Prosecution placed the obligation under Sec. 6091(b), and not 6091(a), as the Panel switched.  App. OO-4, compare App. A-7.

Petitioner had no duty under Sec. 6091(a) alleged in the indictment.  Tax Returns and Payment fall under Sec. 6091(b).  App. U-3.  Section 6091(b) required Petitioner to "file" any "required" "Tax Return" with the "place" in the "internal revenue district of Petitioner's residence.  See Sec. 6091(b)(1)(A)(i).  App. U-3.  This is essential to establishing "jurisdiction and venue."  Brewer, 486 F.2d at 509; see also Taylor, 828  F.2d at 634 ("matter of law"). See also Article III, Sec. 2, Cl. 3.

"A paper is filed when it is delivered to the proper official and by him received and filed."  U.S. v. Lombardo, 241 U.S. 73, 76 (1916).  A Federal Court is "constrained" by the words of a statute.Id. at 77

Besides having to prove a "tax deficiency" as to Counts One, Two, Three, and Four, the Prosection was required to prove to the jury:

    "that the law imposed a duty on defendant...defendant knew of this duty, and that he voluntaryily and intentionally     violated that duty."  Cheek, 498 U.S. at 201.

Section 6091(b)(1)(A)(i)'s "made to the Secretary...in the internal revenue district" is the duty and Sec. 6151's duty to pay is inexorably linked.  Hollywell, 503 U.S. at 53.  The Term "file" comes from the latin term "filum" and means to deliver.  Lombardo, Id. at 76.  Though Sec. 7203 references "file" in its heading it never mentions it in the statute's language.  "Failing to file a return is thus the same as-not broader than failing to 'make a return.'"  U.S. v. Street, 370 F. Appx. 343, 345 (2010); citing U.S. v. Dunkel, 900 F.2d 105, 108 (7th Cir. 1990).

Petitioner moved to dismiss and judgment of acquittal on grounds internal revenue districts and District Director offices no longer existed. App. NN. The Prosecution responded agreeing and that the duty to file and pay for all years thus derived from Sec. 6091(b)(1)(B)(i).  App. OO-4.  Accordingly, the duty to file and pay purportedly derived from "regulations" under 26 CFR 1.6091-2(2005).  App. OO-5 For years 2000 through 2005.  App. JJ.  The Court denied the Motion without making any formal findings or a merits based analysis.  App. D, App. E-7 & O-13

The Court's duty is to "enforce it according to its terms."  Carminetti v. U.S., 242 U.S. 470, 485 (1917).  It is the jury which must find "any particular fact that the law makes essential to a defendant's punishment."  Booker, 543 U.S. at 232.  The Panel switching to Sec. 6091(a) and its "any return" is not the law governing "tax returns."

On Appeal, Petitioner sought reversal as the Court's decision to deny Petitioner's Motion to Dismiss, allowing the charges to go forward to trial, was clearly erroneous.  At trial, the Court instructed the jury that if Petitioner lived in Creek County Oklahoma he was required to file a tax return and pay taxes in the Northern Judicial District. App. N-6.  Over Petitioner's numerous objections. App. O-5

The Panel switch to Sec. 6091(a), besides not being the law governing "Tax Returns", changed the entire charges to which Petitioner was to defend.  "The Federal Tax System is basically one of self assessment...whereby the taxpayer computes the tax due and filed the appropriate form of return along with the requisite payment."  U.S. v. Galletti, 541 U.S. 114, 122 (2004).  The "provision of information in 1040 is inexorably linked to the statutory requirement to pay taxes."  U.S. v. Collins, 920 F.2d 619, 630 (n.13)(10th Cir. 1990).  The system relies on self reporting and self assessment.  U.S. v. Rodger Young & Co., 465 U.S. 805, 816 (1984).  Where is self reporting to occur?

"The elements of a statutory offense may not be so changed by Judicial interpretation as to deny the accused defedants a fair warning of the crime punished."  Slawn v. California, 431 U.S. 595, 601 (1977).  A "statute which ...requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning...violates the first essential of due process of law."  Bouie, 378 U.S. at 351.  The phrase "Tax Return" is not defined at Sec. 6091 or 7203.  See U.S. v. Patridge, 507 F.3d 1092, 1094 (7th Cir. 2007).  Section 60111 requires every person use the "Forms...prescribed by the Secretary."  Otte v. U.S., 419 U.S. 43, 52 (1974).  "Congress has given discretion to the [CIR] to prescribe by regulation Forms of Return and has made it the duty of the taxpayer to comply.  CIR v. Lane-Wells, 321 U.S. 219, 223 (1944).  Prosecution expert agreed.  App. I-15; L-7

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