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