Donald E. Wishart, Sui Juris
Citizen of California State,
Federal Witness and Victim
c/o 5150 Graves Avenue, Suite 12-C
San Jose [ZIP code exempt]
CALIFORNIA, USA
In Propria Persona and
by Special Appearance Only
All Rights Reserved
without Prejudice
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA [sic],
) Case Number CR-00-20227-JF
)
Plaintiff [sic], ) FIRST
SUPPLEMENT TO MOTION
) TO DISMISS COUNTS ONE AND TWO:
v. )
)
18
U.S.C. 287, 1341;
DONALD E. WISHART [sic], )
IRC
7809
)
Defendant [sic]. )
________________________________)
COMES NOW Donald E. Wishart, Sui Juris, Citizen of California State and Defendant in the above entitled matter (“Defendant”), to submit this, His FIRST SUPPLEMENT TO MOTION TO DISMISS COUNTS ONE AND TWO, which MOTION was previously filed and served in the instant case.
Count ONE charges a false claim in violation of 18 U.S.C. 287. Plaintiffs are required to prove that Defendant filed, or conspired to file, multiple tax returns on behalf of Himself, or has filed or conspired to file multiple tax returns in the names of nonexistent taxpayers, or in the names of real taxpayers who did not intend the returns to be their own, with the intent of obtaining tax refunds to which they were not entitled, in violation of the law.
Defendant did not file multiple tax returns in the names of nonexistent taxpayers for any given calendar year, and the so-called indictment fails entirely to allege any facts which would support such a conclusion.
Thus, Plaintiffs (plural) fail to state a claim upon which relief can be granted under 18 U.S.C. 287.
This Court lacks subject matter jurisdiction where the government knew, or should have known, that it was required to comply with the Internal Revenue Manual (“IRM”), pursuant to section 1203 of the Internal Revenue Service Restructuring and Reform Act of 1998.
Section 1203 identifies acts constituting grounds for termination from employment with the Internal Revenue Service.
According to Section [9.5]2.3.1.4 of the IRM, titled “The Investigate Process, Grand Jury Investigations,” at paragraph 4:
All requests of the type described in Department of Justice, Tax Division, Directive No. 96, concerning investigation of false refund claims, in violation of 18 U.S.C. 286 or 287, may be referred by Counsel directly to the U.S. Attorney, if the request involved:
A. an individual,
B. who for a single year files or conspired to file multiple tax returns in the names of nonexistent taxpayers,
C. with the intent of obtaining tax refunds.
Department of Justice Tax Division Directive No. 96, paragraph 2, states, in pertinent part, that a charge under section 287 is brought when:
based upon the available evidence, … the case involves a situation where an individual … for a single tax year, has filed or conspired to file multiple tax returns on behalf of himself/herself, or has filed or conspired to file multiple tax returns in the names of nonexistent taxpayers or in the names of real taxpayers who do not intend the returns to be their own, with the intent of obtaining tax refunds to which he/she is not entitled.
[bold emphasis added]
There are no allegations in the so-called indictment that Defendant filed or conspired to file multiple tax returns on behalf of Himself; or that Defendant filed, or conspired to file, multiple tax returns in the names of nonexistent taxpayers, or in the names of real taxpayers who did not intend the returns to be their own, with the intent of obtaining tax refunds to which He was not entitled.
The U.S. Department of Justice (“DOJ”) concurs with these authorities, and delegations of authority, at Section 6-4.243 of Manual 2.00, DOJ Criminal Tax Practice and Procedure, Title 6.
DOJ Tax Division Directive No. 96 has been promulgated in compliance with the federal Administrative Procedures Act (“APA”).
Therefore, as interpreted and understood by the government, Defendant has committed no offense under 18 U.S.C. 287.
The government has not submitted any evidence or offer of proof supporting Count ONE of the so-called indictment, specifically that Defendant ever filed or conspired to file multiple tax returns on behalf of Himself; or that Defendant ever filed, or conspired to file, multiple tax returns in the names of nonexistent taxpayers, or in the names of real taxpayers who did not intend the returns to be their own, with the intent of obtaining tax refunds to which He was not entitled.
Notwithstanding the mandates given by Congress in the Internal Revenue Service Restructuring and Reform Act of 1998, it is axiomatic, and the courts have consistently held, that an agency’s interpretation of the law, through implementing rules and regulations, carries great weight. See Estate of Iverson v. Commissioner of Internal Revenue, 333 U.S. 496 (1958); United States v. Correll, 389 U.S. 299 (1967).
In similar cases, the government has been known to argue that internal policies of the U.S. Department of Justice, as set forth in their manuals and directives, confer no rights, benefits, or privileges upon defendants in criminal cases.
Defendant wishes to direct the Court’s attention to the change in the law in the year 1998. This change now requires employees of the IRS to follow the provisions of the IRM. As such, this change does confer a benefit or privilege upon Defendant, in His defense against the instant charge of violating 18 U.S.C. 287.
The pertinent portion of the IRM, defining when an offense has been committed under 18 U.S.C. 287, is in harmony with the interpretation given to it by Assistant Attorney General Shirley D. Peterson, in Department of Justice Tax Division Directive No. 96.
Further, we note that there is nothing in DOJ Tax Division Directive No. 96 which explicitly states, in writing, that it is not intended to confer any rights, privileges or benefits on prospective or actual witnesses or defendants (or any words to that effect).
Alternatively, the Court ought to require that the government prove at trial that Defendant filed multiple tax returns on behalf of Himself; or has filed, or conspired to file, multiple tax returns in the names of nonexistent taxpayers, or in the names of real taxpayers who did not intend the returns to be their own, with the intent of obtaining tax refunds to which He was not entitled, in violation of the law. See U.S. v. Omene, 143 F.3d 1167 (9th Cir. 1998).
In Omene, it is obvious that the IRS, and Tax Division of the Department of Justice, through the same IRM provision and directive, appropriately applied 18 U.S.C. 287 to the filing of multiple tax returns made by the defendant in that case.
The so-called indictment in the instant case alleges that Defendant made and presented to the United States Treasury Department, a claim against the United States for payment, by sending to the United States Treasury Department, through the Internal Revenue Service, a “Certified Bankers Check” “Comptroller Warrant” [sic] (hereinafter “the warrant”).
Defendant did not “make”, and never did anything to “make”, the warrant. The “maker”, in point of fact, was LeRoy Michael Schweitzer.
Defendant did not “present”, and never did anything to “present”, the warrant to the United States Treasury Department.
Defendant did not “make” or “present” any claim against the United States for payment.
Defendant did not “send”, and never did anything to “send”, said warrant to the United States Treasury Department.
These elements of the allegation all assume facts which are not in evidence and which cannot be in evidence, because such an event never happened, in point of fact.
The Internal Revenue Service is not a bureau or other department authorized to exist within the United States Treasury Department.
The Bureau of Internal Revenue is likewise not a bureau or other department authorized to exist within the United States Treasury Department.
See Title 31, in toto, and Defendant’s FIRST CROSS-COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, by which Defendant expressly intends to obtain final declaratory judgment on this very point, not only for His own benefit in the instant case, but also for the benefit of the entire Nation.
In their own pleading to a federal court in Idaho, served on November 18, 1993, a U.S. Attorney from the DOJ Tax Division, in Washington, D.C., stated clearly, and without any ambiguity, that the IRS is not an agency of the United States. In His pleading entitled UNITED STATES’ ANSWER AND CLAIM, DOJ Trial Attorney Richard R. Ward … “Denies that the Internal Revenue Service is an agency of the United States Government …”!!
Defendant attaches an uncertified photocopy of said ANSWER AND CLAIM as Attachment “A” and incorporates same by reference, as if set forth fully herein.
Defendant also wishes to advise the Court that He has now requested a quote from the U.S. National Archives and Records Administration, for a certified copy of said ANSWER AND CLAIM, as filed in the case of Diversified Metal Products, Inc. v. T-Bow Company Trust et al., USDC Idaho, Civil No. 93-405-E-EJL. See Attachment “A”.
The government said one thing in Idaho in the year 1993 A.D., and is now saying something else entirely different here in San Jose, California, in the year 2000 A.D.
Were they lying in Idaho but now they are telling the truth? Or, were they telling the truth in Idaho, but lying here and now?
Somebody must have graduated with honors from a Lie School.
The legal status and legal situs of the IRS have simply not changed one bit during the intervening 7 years.
Had Congress suddenly enacted a place for the IRS in the United States Treasury Department during those years, e.g. in a statute in Title 31, the prohibition against ex post facto laws would have caused a furor throughout America -– for admitting officially that IRS was not a federal agency from the start.
Defendant argues emphatically that the ANSWER AND CLAIM by Richard R. Ward, once certified, should provide conclusive evidence of the real truth of the matter, which truth in turn should forever estop the government from ever alleging anything else, ever again!
Count ONE is false on each and every essential element.
Moreover, the allegations in Count ONE are a fraud upon the Court, a fraud upon the panel of federal citizens, a fraud upon the Defendant, and a fraud upon the American People in general.
Clearly, the truth of the matter entirely belies the elements of the allegation in Count ONE.
Had the truth been divulged to that panel of federal citizens, it would have been eminently clear to them that Defendant did not make or present to the United States Treasury Department a claim against the United States for payment by sending to the United States Treasury Department the warrant in question.
Moreover, the warrant in question was never presented to the General Accounting Office (“GAO”), for that federal agency to make an administrative determination of its validity.
The GAO is an independent agency which serves as general agent for the Treasury of the United States. See IRC 7809.
A claim against the United States cannot be adjudicated in courts of the United States, until and unless it has first been submitted to, and rejected by, the GAO. Thus, the government has failed to exhaust its requisite administrative remedies in this regard.
Under the circumstances, such a presentment to the GAO would not have been appropriate, because the warrant in question was made payable to the Defendant AND to the Bureau of Internal Revenue, which is likewise not an agency of the United States.
EVIDENCE
OF CLEARED WARRANTS
AND
OTHER EXCULPATORY EVIDENCE
WERE NOT
PRESENTED TO THE PANEL
Defendant attaches a set of United States Treasury checks which were issued by the Treasury of the United States, after clearing similar warrants made payable to students of LeRoy Michael Schweitzer and their creditors. These cancelled Treasury checks are exculpatory evidence, admissible as evidence necessary to the instant defense.
In each case, said Treasury checks constituted the last step in a process of presenting and crediting the face value of said warrants to various accounts, such as the students’ taxpayer accounts with the Internal Revenue Service.
After said warrants were presented and paid, the accounts were adjusted accordingly, and refunds were issued in the form of valuable United States Treasury checks.
Those students took those Treasury checks to their banks, deposited them in their checking accounts, and spent the money. Also, as a direct result of tendering said warrants, IRS liens were discharged (in some cases).
Defendant also has, in His possession, a warrant issued by a trust fund managed by the County of Santa Clara, which reimbursed Him for professional services rendered to one of that trust fund’s beneficiaries (a disabled man). Defendant is familiar with warrants.
Prior to this incident, Defendant had worked at a commercial bank, where he learned about, and had professional contact with, warrants similar to the ones made by LeRoy Michael Schweitzer.
Furthermore, Defendant later transmitted a letter to the IRS, via certified U.S. Mail, clarifying the fact that He had no specific intent to defraud anyone and, instead of a refund, He was willing to accept a credit against His IRS taxpayer account.
Defendant specifically denies that any of this exculpatory evidence was ever presented to the panel of federal citizens who indicted Him.
RULES
GOVERNING RECEIPT OF PAYMENTS
AND “BAD CHECKS”
WERE VIOLATED
At 26 CFR 301.6311-1(a)(1)(i), the regulation governing receipt of payments states:
A check or money order in payment for internal revenue taxes or internal revenue stamps should be made payable to the Internal Revenue Service. … [T]he district director may refuse to accept any personal check whenever he has good reason to believe that such check will not be honored upon presentment.
The warrant in question was not made payable to the Internal Revenue Service [sic]; it was made payable to Defendant AND to the Bureau of Internal Revenue [sic]. The Internal Revenue Service and the Bureau of Internal Revenue are not one and the same.
There is serious doubt whether either entity was ever created by any organic Act of Congress. The instant record already contains abundant evidence constituting probable cause to justify such doubt.
Moreover, said regulation clearly violates the statutory mandate at IRC 7809, which requires that ALL collections be deposited into the Treasury of the United States, without exception.
See Cross-Plaintiff’s FIRST SUPPLEMENT TO CROSS-COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES, as lodged and served on all proper parties; and docket entry 50, entry date 10/10/00.
The very fact that the warrant in question was made payable to the Bureau of Internal Revenue [sic], and NOT to the Internal Revenue Service [sic] and NOT to the Treasury of the United States, should have given the district director good reason to believe that said warrant would not, should not, and could not be honored upon presentment.
Defendant hereby challenges
said regulation for violating the clear Congressional mandate found at IRC 7809.
The district director either knew, or should have known, that the regulation above contains a serious flaw for failing to reflect the clear statutory mandate which requires that all collections be deposited in the Treasury of the United States, and not anywhere else.
Further to the question of “bad checks”, the statute at IRC 6657 and corresponding regulations at 26 CFR 301.6657-1(a)–(b) are illuminating in the instant case. At paragraph (a), the regulation reads:
[I]f a check or money order is tendered in the payment of any amount receivable under the Code, and such check or money order is not paid upon presentment, a penalty of one percent of the amount of the check or money order, in addition to any other penalties provided by law, shall be paid by the person who tendered such check or money order.
[bold emphasis added]
At paragraph (b), the regulation reads:
If payment is refused upon presentment of any check or money order and the person who tendered such check or money order establishes to the satisfaction of the district director that it was tendered in good faith with reasonable cause to believe that it would be duly paid, the penalty set forth in paragraph (a) of this section shall not apply.
[bold emphasis added]
It is doubtful that the warrant in question was “receivable under the Code” specifically because it was made payable to the Bureau of Internal Revenue [sic], and NOT to the Treasury of the United States. As such, it was definitely NOT receivable under IRC section 7809!
Furthermore, since it was not receivable under IRC section 7809, it should never have been presented for payment.
Paragraph (b) supra makes it abundantly clear that the penalty(s) set forth in paragraph (a) shall not apply if the warrant was tendered in good faith and with reasonable cause to believe that it would be duly paid. These penalty(s) would, necessarily, also include “any other penalties provided by law”, specifically the penalty defined at 18 U.S.C. 287.
Defendant demonstrated good faith by bonding the warrant.
The cleared United States
Treasury Checks discussed above gave Defendant more than reasonable cause to
believe that the warrant He tendered would be duly paid, because similar
warrants made by LeRoy Michael Schweitzer had been duly paid – and
refunds were made and paid by the Treasury of the United States, no less!
Finally, Defendant argues that the district director had an obligation to present the warrant for payment upon a determination that it was receivable under the Code, and to return the warrant to its maker and to hold the maker liable, if payment was refused.
If the district director failed to present the warrant for payment, then the district director had an obligation to return the warrant to Defendant, to avoid unlawful conversion of same.
Similarly, Defendant argues that the district director had an obligation to return the warrant to Defendant, upon a proper determination that it was not receivable under the Code.
Under this latter condition, the district director would not have been obliged to present the warrant for payment, e.g. due to the wrong payee or similar reason why it was not receivable under the Code.
Under none of the above circumstances is a district director justified in retaining any instrument such as the warrant in question, because the instrument is not the property of the district director.
The act of retaining possession of a warrant which has not been presented for payment, or which has been presented for payment but payment has been refused, is tantamount to conversion.
Such conversion is prohibited by law and cannot be justified in the absence of an ORDER issued by a court of competent jurisdiction.
REMEDY REQUESTED
For all of the reasons stated herein, and in the original MOTION TO DISMISS COUNTS ONE AND TWO, this honorable Court should dismiss Counts ONE AND TWO, with prejudice as to the Plaintiffs, but without prejudice as to Defendant’s FIRST CROSS-COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, as now pending before this honorable Court, and without prejudice as to Cross-Plaintiff’s VERIFIED CROSS-COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND MONETARY DAMAGES, as currently lodged before the District Court of the United States under the instant docket number.
I, Donald E. Wishart, Sui Juris, hereby verify, under penalty of perjury, under the laws of the United States of America, without the “United States” (federal government), that the above statement of facts and laws is true and correct, according to the best of My current information, knowledge, and belief, so help Me God, pursuant to 28 U.S.C. 1746(1). See Supremacy Clause in pari materia with all provisions of Title 28, U.S.C. (Constitution, Laws and Treaties of the United States are supreme Law of the Land).
Dated: October 16, 2000 A.D.
Respectfully submitted,
/s/ Donald E. Wishart
Donald E. Wishart, D.M.D., Sui Juris
Citizen of California State,
Federal Witness and Victim
All Rights Reserved without Prejudice
I, Donald E. Wishart, Sui Juris, hereby certify, under penalty of perjury, under the laws of the United States of America, without the “United States” (federal government), that I am at least 18 years of age, a Citizen of ONE OF the United States of America, and that I personally served the following document(s):
FIRST SUPPLEMENT
TO MOTION
TO DISMISS COUNTS
ONE AND TWO:
by placing one true and correct copy of said document(s) in first class United States Mail, with postage prepaid and properly addressed to the following:
Office of the U.S. Attorney Office of the U.S. Attorney
280 South First St., Ste. 371 312 North Spring Street
San Jose [ZIP code exempt] Los Angeles [ZIP code exempt]
CALIFORNIA, USA CALIFORNIA, USA
Department of Justice, Tax Div. Department of Justice, Tax Div.
West. Criminal Enforcement Sec. West. Criminal Enforcement Sec.
600 “E” St., N.W., Room 5712 600 “E” St., N.W., Room 5712
Washington [ZIP code exempt] Washington [ZIP code exempt]
DISTRICT OF COLUMBIA, USA DISTRICT OF COLUMBIA, USA
Federal Public Defender’s Office Internal Revenue Service
160 W. Santa Clara St., Ste. 575 55 South Market Street
San Jose [ZIP code exempt] San Jose [ZIP code exempt]
CALIFORNIA, USA CALIFORNIA, USA
Paul Camacho Don Hallenbeck
Internal Revenue Service Internal Revenue Service
55 South Market Street 55 South Market Street
San Jose [ZIP code exempt] San Jose [ZIP code exempt]
CALIFORNIA, USA CALIFORNIA, USA
Mel Steiner Colbert Tang
Internal Revenue Service Internal Revenue Service
55 South Market Street 55 South Market Street
San Jose [ZIP code exempt] San Jose [ZIP code exempt]
CALIFORNIA, USA CALIFORNIA, USA
Brian
Watson Ken
Whitmore
Internal Revenue Service Internal Revenue Service
55 South Market Street 55 South Market Street
San Jose [ZIP code exempt] San Jose [ZIP code exempt]
CALIFORNIA, USA CALIFORNIA, USA
Dan Sutherland Solicitor General
Internal Revenue Service U.S. Dept. of Justice
55 South Market Street 10th & Constitution, N.W.
San Jose [ZIP code exempt] Washington [ZIP code exempt]
CALIFORNIA, USA DISTRICT OF COLUMBIA, USA
Bay View
Federal Bank Chief
Counsel
Attention: Legal Department Internal Revenue Service
2121 South El Camino Real 1111 Constitution Ave., N.W.
San Mateo [ZIP code exempt] Washington [ZIP code exempt]
CALIFORNIA,
USA DISTRICT OF
COLUMBIA, USA
Jeremy Fogel Patricia V. Trumbull
c/o Clerk of Court c/o Clerk of Court
280 South First Street, Rm. 2112 280 South First Street, Rm. 2112
San Jose [ZIP code exempt] San Jose [ZIP code exempt]
CALIFORNIA, USA CALIFORNIA, USA
Executed on October 16, 2000 A.D.
/s/ Donald E. Wishart
Donald E. Wishart, D.M.D., Sui Juris
Citizen of California State,
Federal Witness and Victim
All Rights Reserved without Prejudice
Attachment “A”:
(uncertified copy)
Diversified Metal
Products, Inc.
v.
T-Bow Company
Trust et al.
(USDC Idaho) Civil No. 93-405-E-EJL
Attachment “B”:
(uncertified)
Issued to Students of LeRoy Michael Schweitzer