NORMAN L. VROMAN
Lawyer
c/o General Delivery
Hopland, California

IN PROPRIA PERSONA









                 UNITED STATES COURT OF APPEALS

                     FOR THE NINTH CIRCUIT


In Re NORMAN LEON VROMAN           )    No.:
          Petitioner,              )
___________________________________)
                                   )    District Court Number:
UNITED STATES DISTRICT COURT       )       CR 91 0213 EFL
FOR THE NORTHERN DISTRICT OF       )
CALIFORNIA                         )    PETITION FOR WRIT OF
          Respondent,              )          MANDATE
                                   )
UNITED STATES OF AMERICA,          )
          Real Party in Interest.  )
___________________________________)


                  Petition for Writ of Mandate:
                          Page 1 of 13


                       TABLE OF CONTENTS

Statement of Facts.....................................1

Statement of Issues....................................4

Relief Sought..........................................4

Reasons Why Writ Should Issue..........................5

Statement of Related Cases.............................9

Conclusion.............................................9

Excerpted Record.......................................10


                  Petition for Writ of Mandate:
                          Page 2 of 13


                      TABLE OF AUTHORITIES

Cases:

Russell v. United States
     369 U.S. 772 (1962)...............................6,7

Steiner v. United States
     229 F.2nd 745 (9th Cir., 1956)....................6

United States v. Menk
     260 F.Supp. 784, 787 (S.D. Indiana, 1966).........6

Statutes:

Title  2 U.S.C. §192...................................6
Title 18 U.S.C. §545...................................6
Title 26 U.S.C. §7201..................................1,4,5,6
Title 26 U.S.C. §7203..................................1,4,5,6
Title 26 U.S.C. §4461..................................5
Title 26 U.S.C. §4901..................................5

Rules:
Circuit Rule 28-2.6....................................9

Constitution:
United States Constitution, 5th Am.....................8
United States Constitution, 6th Am.....................8


                  Petition for Writ of Mandate:
                          Page 3 of 13


NORMAN L. VROMAN
Lawyer
c/o General Delivery
Hopland, California

IN PROPRIA PERSONA









                 UNITED STATES COURT OF APPEALS

                     FOR THE NINTH CIRCUIT


In Re NORMAN LEON VROMAN           )    No.:
          Petitioner,              )
___________________________________)
                                   )    District Court Number:
UNITED STATES DISTRICT COURT       )       CR 91 0213 EFL
FOR THE NORTHERN DISTRICT OF       )
CALIFORNIA                         )    PETITION FOR WRIT OF
          Respondent,              )         MANDATE
                                   )
UNITED STATES OF AMERICA,          )
          Real Party in Interest.  )
___________________________________)


                       STATEMENT OF FACTS

     Petitioner  Norman   Leon  Vroman   has  been   charged  by

indictment in  the United States District Court for the Northern

District of  California with  one felony  count of  tax  evasion

(Title 26  U.S.C. §7201), and four misdemeanor counts of failing

to file  a tax  return (Title  26 U.S.C. §7203).  The indictment

was filed  on May  8, 1991, and Petitioner first appeared before

the District  Court on June 14, 1991.  (A copy of the indictment

is attached in the Excerpted Record as Exhibit A.)


                  Petition for Writ of Mandate:
                          Page 4 of 13


     Petitioner indicated  to the court (on June 14) that he was

unable to  enter a plea because the indictment failed to apprise

him of  the charges  against him.    (Reporter's  Transcript  of

6/14/91 appearance  is  attached  in  the  Excerpted  Record  as

Exhibit B.)  Petitioner indicated to the court that he could not

enter a  plea because  the indictment  alleges  violation  of  a

penalty statute only, and does not inform him of the substantive

statutes or  regulations with  which he  has allegedly failed to

comply.  (RT 6/14/91:5)1  Petitioner expressed a desire to demur

to the  charges, and  the court  set a  date for  hearing on his

motion, indicating  that "The  United States  Attorney would  be

happy to  point you  out to the appropriate law" (RT 6/14/91:5),

and, "As soon as you file the demurrer, they'll be happy to bang

out the  word processor  and  tell  you  exactly  what  law  you

violated".  (RT 6/14/91:8)

     On June  21, 1991, Petitioner filed a motion to dismiss (in

the nature  of a  demurrer) pursuant to F.R.C.P. 12(b).  (A copy

is attached in the Excerpted Record as Exhibit C)  The basis for

the motion  was that  the indictment  fails  to  set  forth  any

statute, code  or  regulation  which  requires  payment  of  the

alleged  unpaid   taxes,  or  which  impose  on  Petitioner  any

obligation to  file the  alleged unfiled  returns.    Petitioner

pointed out  that he  cannot prepare a defense to the charges if

he has  not  been  informed  of  what  laws  he  is  accused  of

violating.

____________________

1....Hereinafter "RT"  shall designate references to a reporters
     transcript of proceedings, by date and page number.


                  Petition for Writ of Mandate:
                          Page 5 of 13


     On June  28, 1991,  the government  filed its  response  to

Petitioner's motion  to dismiss.   (Attached  in  the  Excerpted

Record as  Exhibit D)   The government did not inform Petitioner

of the  laws that  he has  allegedly  violated.    Instead,  the

government reiterated  in its  papers  the  factual  allegations

contained in  the indictment  without addressing the question of

what laws  Petitioner violated  by doing  (or failing to do) the

alleged acts.

     The matter  was heard July 3, 1991.  (Reporter's Transcript

attached in the Excerpted Record as Exhibit E)  The court denied

Petitioner's motion,  and entered  a plea of "not guilty" on his

behalf.   Petitioner stated  that he was not refusing to enter a

plea, but  he had  no idea  what laws he had allegedly violated.

The court  responded, "...  I think  you know  what the  charges

are". (RT  7/3/91:7)  When Petitioner responded that he honestly

did not  know the  charges the  court directed the U.S. Attorney

to, "...  file a  brief and show him what you're going to charge

him with."   The  Assistant United  States Attorney  replied, "I

shall, Your Honor."  (RT 7/3/91:7)  As a date for filing of pre-

trial motions was being set by the court, Petitioner pointed out

that he  would like  to receive the government's brief informing

him of  the charges  prior to  filing of his motions.  The court

indicated that  its order  that  the  government  file  a  brief

informing Petitioner  of the  charges was  "... just a favor I'm

doing you." (RT 7/3/91:10)  Petitioner asked if he could rely on

what the  government said  in the  brief,  and  the  court  then

directed the  government not  to file  the brief  at all.    (RT

7/3/91:10)

     Trial of  this matter is currently set for August 28, 1991,

at 9:00 a.m.


                  Petition for Writ of Mandate:
                          Page 6 of 13


                      Statement of Issues

     The problem  is that  each count  of the  indictment states

only that Petitioner violated 26 U.S.C. §7201 or §7203 by doing,

or failing  to do,  various stated acts (e.g., filing of returns

and payment  of taxes)  which are  "required by  law".   Neither

§7201 nor  §7203 impose any obligation to file a return or pay a

tax.   The indictment  does not  charge an  offense against  the

United States  because it  fails to  specify what  law (or laws)

Petitioner violated  by doing  (or  failing  to  do)  the  facts

alleged in each count.

     Since no  offense against the United States is contained in

the indictment the District Court has no jurisdiction to conduct

criminal  proceedings   under  the  indictment.    Additionally,

continued criminal proceedings would deny Petitioner Due Process

of Law,  since Petitioner  has not  been informed of the charges

against him,  and consequently  has no  opportunity to prepare a

defense.

                         Relief Sought

     1.   Petitioner requests  that this  court issue  a Writ of

Mandate, directing the District Court to dismiss the proceedings

under this indictment.

     2.   Petitioner further  requests that  this court issue an

order staying  all further  proceedings in  the  District  Court

relating to the indictment, pending resolution of this Petition.


                  Petition for Writ of Mandate:
                          Page 7 of 13


                 Reasons Why Writ Should Issue

     Title 26  U.S.C. §7201  by its  own terms penalizes willful

evasion of  taxes "...  imposed by this title".  The language of

26 U.S.C. §7203 is similar.  As such, these are penalty statutes

and they  do not  of themselves create any tax liability, or any

duty to file returns or pay taxes.  Therefore, Petitioner cannot

know what substantive crime he has been accused of, and which he

must defend  against,  unless  the  indictment  also  refers  to

another statue,  code or  regulation creating  an obligation  to

file a return and pay a tax.

     Petitioner  incorporates   by  reference   the  Points  and

Authorities included  in his  Motion to Dismiss (attached in the

Excerpted Record as Exhibit C) as if set forth in full.  Without

repeating  the   contents  of   that  motion  in  its  entirety,

Petitioner would  like to  draw this  court's attention  to  the

Menk, and Steiner cases.

     In Menk  the defendant  was accused (under 26 U.S.C. §7203)

of maintaining coin operated gaming devices on premises operated

by him,  without first paying the taxes required by 26 U.S.C. §§

4461 and 4901.  In that case all three statutes were referred to

in the  information.   In the  course of  its ruling  the  court

discussed how  such an  offense must be defined in an indictment

or information:


     [A]ll three  of the sections referred to in the information
     - Sections  4461,  4901  and  7203  -  must  be  considered
     together before  a complete  definition of  the offense  is
     found.  Section 4461 imposes a tax on persons engaging in a
     certain activity; Section 4901 provides that payment of the
     tax shall  be a  condition precedent  to  engaging  in  the
     activity subject  to the  tax; and  Section 7203 makes it a
     misdemeanor to  engage in the activity without having first
     paid the  tax, and  provides the penalty.  It is impossible
     to determine  the meaning  or intended effect of any one of
     these sections  without reference  to the  others."  United
     States v.  Menk, 260 F.Supp. 784, 787 (S.D. Indiana, 1966).

                                                (emphasis added)


                  Petition for Writ of Mandate:
                          Page 8 of 13


     The Ninth  Circuit has  addressed the  issue here raised by

Petitioner in Steiner v. United States, 229 F.2nd 745 (9th Cir.,

1956).   The Defendants in Steiner contended that certain counts

of the  indictment failed to state an offense against the United

States.   The Defendants were charged in several counts under 18

U.S.C.  §545,   with  knowing  and  fraudulent  importation  and

transportation of  certain birds,  "contrary to  law".   Like 26

U.S.C. §§7201 and 7203, that section provides criminal penalties

for violation of other provisions of law.  The court held that,


     ...[E]ach of counts 8, 9, 10 and 11  attempted to  charge a
     violation of 18 U.S.C.A. §545 and did not charge or attempt
     to charge any other offense.  However, each of counts 8, 9,
     10 and  11 failed to state what law (other than 18 U.S.C.A.
     §545) the importation mentioned therein was contrary to, or
     in what  respect such importation was contrary to such law.
     Thus each  of counts  8, 9,  10 and  11 failed  to charge a
     violation of  18 U.S.C.A.  §545 and  failed  to  charge  an
     offense against the United States.  Steiner, supra, at 748.


     The  significance   of  sufficiently   specific  notice  of

criminal accusations  is discussed  in Russell v. United States,

369 U.S.  772 (1962).  In that case Defendants were charged with

refusal to  answer questions  of a Senate subcommittee, pursuant

to 2  U.S.C. §192.   The  statute only  criminalized refusal  to

answer questions  which were  "pertinent  to  the  matter  under

inquiry," yet  the indictment  only stated  this element  of the

offense in conclusory terms, and did not specifically inform the

Defendants what the specific "matter under inquiry" was.


                  Petition for Writ of Mandate:
                          Page 9 of 13


     The Supreme Court held that, "The vice of these indictments

... is that they failed to satisfy the first essential criterion

by which the sufficiency of an indictment is to be tested, i.e.,

that they  failed to sufficiently apprise the defendant 'of what

he must  be prepared  to meet'."   Russell,  supra at  764.  The

court further held that where the definition of a crime includes

generic terms, it is not sufficient for the indictment to charge

the offense  in the  same generic  terms. Instead, it must state

those particulars  which  are  necessary  "...  to  apprise  the

defendant 'with  reasonable certainty,  of  the  nature  of  the

accusation against  him'".   Russell, supra at 765. The court in

Russell pointed  out that  the government's  theory of  what the

"pertinent matter  under inquiry"  was changed  from  the  trial

stage to  the appellate  stage of  that case.   This,  the court

pointed out,  is precisely  one of the reasons that sufficiently

specific pleading is required.  Russell, supra 767- 768.

     Petitioner  stands   before  this   court  unaware  of  the

substantive law,  codes  or  regulations  which  the  government

claims that he has violated, and for which he will shortly stand

trial.   Petitioner does  not know  what laws  the government or

trial court  will tell the jury that he violated, so it is quite

impossible  for  him  to  prepare  a  defense  to  the  charges.

Petitioner cannot  make any  pretrial motions  which require  an

understanding of the theory upon which the government intends to

proceed against him, nor can he make requests as to how the jury

should be  instructed in  this regard.   The  indictment in this

case clearly,  and concededly,  notifies Petitioner of the dates

of the  alleged offenses,  the amounts  of  Petitioner's  income

claimed by  the government,  and the  amount of  taxes allegedly

owing.

                  Petition for Writ of Mandate:
                          Page 10 of 13


     However, the  indictment equally  clearly does  not  notify

Petitioner  of   what  statute,  code  or  regulation  that  the

government will  argue (either to the trial court, or to a jury)

allegedly imposes a liability on Petitioner for payment of those

taxes.   Nor does  the indictment set forth any statute, code or

regulation which imposes a requirement upon Petitioner to file a

return, or  which particular  return the government will contend

he was obligated to file with respect to each (or any) count.

     Petitioner respectfully  submits that  the District Court's

"judicial instincts"  were to  require notice  of these matters.

The court  indicated to  Petitioner that the government would do

so in  response to  his demurrer  (RT 6/14/91:5 and 8), and once

again after  the court denied Petitioner's motion. (RT 7/3/91:7)

In each  instance, however,  the court eventually ruled that the

government was not obligated to inform Petitioner of the charges

against him,  apparently because, in the court's own words, "...

I think you know what the charges are".  (RT 7/3/91:7)

     Petitioner stands  before this  court earnestly  contending

that he  does not,  and cannot  possibly,  know  what  laws  the

government contends  that he violated until the government tells

him.   He cannot  proceed to prepare a defense to the indictment

because the  indictment fails  to state  an offense  against the

United States  with sufficient  specificity to inform him of the

nature of  the accusation  against him as is required by the 5th

and 6th Amendments of the United States Constitution.


                   Statement of Related Cases

     Other than  9th Circuit  cases cited  as authority  in this

petition and  brief, Petitioner knows of no related cases within

the meaning of Circuit Rule 28-2.6.


                  Petition for Writ of Mandate:
                          Page 11 of 13


                           Conclusion

     For the  foregoing reasons Petitioner believes that each of

the counts  in the  indictment fail to state a criminal offense.

As a  result the  District Court  has no jurisdiction to conduct

further proceedings  under this indictment, and such proceedings

would violate Petitioner's right to due process of law.


Dated: July 23, 1991


Respectfully Submitted,


/s/ Norman Vroman
______________________________
Norman Leon Vroman

In Propria Persona


                  Petition for Writ of Mandate:
                          Page 12 of 13


                        Excerpted Record

                            CONTENTS

Exhibit A..........................Indictment

Exhibit B..........................Reporter's Transcript 6/14/91

Exhibit C..........................Motion to Dismiss

Exhibit D..........................Government's Opposition

Exhibit E..........................Reporter's Transcript 7/3/91


                  Petition for Writ of Mandate:
                          Page 13 of 13


                             #  #  #
      


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U.S.A. v. Vroman