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