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 COUNT THREE:
v. )
) 26 U.S.C. 7212(a) [sic]
DONALD E. WISHART [sic], )
)
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 COUNT THREE, which MOTION was previously filed and served in the instant case.
Count THREE charges Defendant with violating 26 U.S.C. 7212(a) [sic]. Defendant did not violate any of the duly promulgated regulations implementing section 7212(a) of the Internal Revenue Code (“IRC”). IRC section 7212 and 26 U.S.C. 7212 are not one and the same, because the latter has never been enacted into positive law.
Confer at “obligation” in Black’s Law Dictionary, Fifth Edition, to wit:
Perfect or imperfect obligation. A perfect obligation is one recognized and sanctioned by positive law; one of which the fulfillment can be enforced by the aid of the law. But if the duty created by the obligation operates only on the moral sense, without being enforced by any positive law, it is called an “imperfect obligation,” and creates no right of action, nor has it any legal operation.
[bold emphasis added]
And, to understand this definition, it is necessary also to confer at the definition of “positive law”, to wit:
Positive law. Law actually and specifically enacted or adopted by proper authority for the government of an organized jural society.
[Black’s Law Dictionary, Fifth Edition]
[With Pronunciations, bold emphasis added]
Defendant has already submitted a
proper and lawful request, under the FOIA, for a certified
copy of the Act of Congress, if any, specifically enacting Title 26, U.S.C., into
positive law. Defendant has received no
reply or response whatsoever to said FOIA request. Silence
activates estoppel, Carmine v. Bowen, 64 A.
932 (1906); silence
is also a fraud, whenever there is a legal or a moral duty to speak. U.S. v. Tweel, 550 F.2d 297, 299 (5th Cir. 1977).
Title 26, as such, is not
legal evidence of the general and permanent laws of the United States of
America.
In support of Defendant’s claim that Title 26, U.S.C., has never been enacted into positive law, Defendant attaches a true and correct photocopy of a key page from the United States Code, 1976 Edition, Supplement V, as published by the U.S. Government Printing Office, Volume Three, Title 21 -– Food and Drugs to Title 26 -– Internal Revenue Code. Titles of the U.S.C. which are shown with an asterisk “*” have been enacted as positive law; titles of the U.S.C. which are not shown with an asterisk, have not been enacted as positive law. There are no asterisks printed next to Titles 26, 27 or 36 of the United States Code! See Attachment “A” infra; 36 U.S.C. 1101.
The government consistently fails to understand, or appreciate, the magnitude of major frauds which have been perpetrated upon the United States, and upon the People of the United States of America, by the Internal Revenue Code. See 18 U.S.C. 1031.
Defendant argues that none of the provisions found in subtitle F of the Internal Revenue Code has ever taken effect, simply because Title 26 was never enacted into positive law, as such. Here is the plain reason why:
General rule. -- The provisions of subtitle F shall take effect on the day after the date of enactment of this title and shall be applicable with respect to any tax imposed by this title.
[IRC 7851(a)(6)(A)]
The consistent federal legislative practice is to use the term “this title” to refer to a Title of the United States Code. For example, throughout Title 28, which has been enacted into positive law and which contains the laws which govern the federal courts, the term “this title” therein refers to Title 28, consistently and clearly.
In other Titles as well, the term “this title”, as used therein, refers to the corresponding Title of the United States Code. See, for example, Title 31, U.S.C. (also enacted into positive law).
Defendant has queried a number of Americans with common intelligence, and some with above-average intelligence. Those who know anything about federal law all agree that the term “this title” at IRC 7851(a)(6)(A) refers to Title 26. If it refers to something else, that “something else” is simply not defined in the IRC, and necessarily renders the term “this title” null and void for vagueness.
Defendant argues that the term “this title” at IRC 7851(a)(6)(A), as understood by men (and women) of common intelligence, refers to Title 26 of the United States Code.
The latter Code has not been enacted into positive law, as such, pursuant to the requirements for same as found in Title 1, General Provisions, of the United States Code (which has been enacted into positive law). See 1 U.S.C. 204(a). Title 26 is not positive law.
The provisions of subtitle F range roughly from sections 6000 thru 8000. Section 7212 obviously falls within this range.
Even though most federal judges may have no difficulty understanding section 7851(a)(6)(A), they are often men and women of uncommon intelligence. The test for vagueness supplied to us by the U.S. Supreme Court is that “men of common intelligence must necessarily guess at its meaning and differ as to its application.” Connally v. General Construction Company, 269 U.S. 385, 391 (1926).
Defendant relies upon this test to prove that the legal force and effect of all provisions in subtitle F is in serious doubt, specifically (but not only) because of IRC section 7851(a)(6)(A).
Moreover, the U.S. Supreme Court has also held that no one should be punished for relying upon decisions of that Court of Law.
If the doctrine of stare decisis has any meaning at all, it requires that People in their everyday affairs be able to rely on decisions of the U.S. Supreme Court and not be needlessly penalized for such reliance. See U.S. v. Mason, 412 U.S. 391, 399-400 (1973).
The vagueness surrounding all of subtitle F, because of the problems discussed above, is exacerbated by the fact that section 7851 itself falls within subtitle F.
In other words, it goes into effect when it goes into effect. When is that? Answer: when it goes into effect, and not before then!
Since Title 26 has never been
enacted into positive law, we cannot even rely upon section 7851 to know
if or when subtitle F
might become law, because section 7851 has
never “taken effect” either!
Do you stop for red, and go for green, when you travel on the highways and by-ways in your own home town? Is there any debate, or confusion, about this clear common law? Answer: NO! Even color-blind people can distinguish “go” from “stop” -- by the position of the traffic lights. The Internal Revenue Code should be comparably clear, and it is demonstrably NOT!
Perhaps THE most damning evidence, and proof, of irremediable vagueness in the IRC is to be found in a careful comparison of state and federal court decisions, on various key aspects of this Code. To his enormous credit, attorney Lowell H. (Larry) Becraft has written a brilliant essay entitled “Uncertainty of the Federal Income Tax Laws,” last updated September 1, 1999. Defendant incorporates a true and correct copy of that update as Attachment “B”, with all citations as if set forth fully herein, and as published on-line at Internet URL:
http://givemeliberty.org/features/taxes/oklahoma/uncertain.htm
It is rather shocking to discover that judges -– men and women of uncommon intelligence -– have disagreed so diametrically on basic issues of statutory construction, meaning, and application.
These disagreements have not been isolated incidents, over arguable points of questionable significance. See Date Certain Tax Code Replacement Act, H.R. 4199: “to terminate the Internal Revenue Code of 1986,” approved by the House on 4/13/2000 (“Sunset the Code”):
Section 4. National Commission on Tax Reform and Simplification
(a) Findings – The Congress finds the following:
(1) The Internal Revenue Code of 1986 is overly complex, imposes significant burdens on individuals and businesses and the economy, is extremely difficult for the Internal Revenue Service to administer, and is in need of fundamental reform and simplification.
(2) Many of the problems encountered by taxpayers in dealing with the Internal Revenue Service could be eliminated or alleviated by fundamental reform and simplification.
(3) The Federal Government’s present fiscal outlook for continuing and sustained budget surpluses provides a unique opportunity for the Congress to consider measures for fundamental reform and simplification of the tax laws.
(4) Recent efforts to simplify or reform the tax laws have not been successful due in part to the difficulty of developing broad-based, non-partisan support for proposals to make such changes.
(5) Many of the problems with the Internal Revenue Service stem from the overly complex tax code the agency is asked to administer.
On the contrary, this complexity goes to the very heart of the Code, bearing as it does on matters of legislative intent, territorial application, jurisdiction, authority, and fundamental Rights. For example, see 18 U.S.C. 241, 242 in the context of fundamental Rights.
When the President complains that even He cannot decipher the IRC’s complicated convolutions, you have therein enough to conclude that the real reason, but not the only reason, why judges disagree so consistently and diametrically, is the fundamental vagueness inherent in the complex language found throughout the Internal Revenue Code.
Moreover, the historical record provides further shocking proof that this vagueness was intentional.
President Andrew Johnson’s 3-man commission, convened after President Abraham Lincoln’s assassination, issued a set of municipal codes with a territorial scope that was nation-wide (read “lies”).
On December 5, 1898, Mr. Justice Cox lectured the D.C. Historical Society, that Congress has no authority whatsoever to extend its municipal laws into the several States of the Union, in violation of the Tenth Amendment. Congress is without any such authority.
To do so invades the province of the 50 States, expressly reserved to them, and to their People, by the Tenth Amendment. Compare the federal U.C.C., enacted as municipal law, with their own municipal versions enacted by each of the 50 States (e.g. UCCA 1207).
This federal judge’s admission is a smoking gun, to put it mildly. Obviously, the real intent was deception.
This is fraud! Confer at “Fraud” in Black’s Law Dictionary.
Tang and Sutherland have now been formally charged with conspiracy to deprive Defendant’s fundamental Rights, racketeering and conspiracy to engage in a pattern of racketeering activity. Defendant had a legal obligation to report these felonies. 18 U.S.C. 4, 1962. Defendant also had a moral obligation to obstruct an extortion racket and money laundry, particularly when it victimized Him directly.
PUBLISHED REGULATIONS REQUIRE
INTERFERENCE
WITH ATF OFFICERS
Defendant did not violate any of the duly promulgated regulations implementing IRC section 7212(a). As mandated by Acts of Congress in the Federal Register Act and in the Administrative Procedure Act, the Secretary of the Treasury has delegated his authority to enforce IRC section 7212, such as it is, by publishing in the Federal Register a set of regulations codified in the Code of Federal Regulations at 27 CFR sections 270.43, 275.24, 290.71, and 295.24.
Defendant wishes, at the outset, to object formally to the fact that the regulations for Title 26 statutes have “crossed over” into the domain of Title 27, Intoxicating Liquors. Why? Such a cross-over is strictly forbidden at 1 CFR 21.21, to wit:
(c) Each agency shall publish its own regulations in full text. Cross-references to the regulations of another agency may not be used as a substitute for publication in full text, unless the Office of the Federal Register finds that the regulation meets any of the following exceptions:
(1) The reference is required by court order, statute, Executive order or reorganization plan.
(2) The reference is to regulations promulgated by an agency with the exclusive legal authority to regulate in a subject matter area, but the referencing agency needs to apply those regulations in its own programs.
(3) The reference is informational or improves clarity rather than being regulatory.
(4) The reference is to test methods or consensus standards produced by a Federal agency that have replaced or preempted private or voluntary test methods or consensus standards in a subject matter area.
(5) The reference is to the Department level from a subagency.
[bold emphasis added]
Assuming for the moment that one of these exceptions might apply, the regulation at 27 CFR 270.43 clearly states, in pertinent part:
270.43 Interference with administration
Whoever, corruptly or by force or threats of force, endeavors to hinder or obstruct the administration of this part, or endeavors to intimidate or impede any ATF officer acting in his official capacity, or forcibly rescues or attempts to rescue or causes to be rescued any property, after it has been duly seized for forfeiture to the United States in connection with a violation of the internal revenue laws, shall be liable to the penalties prescribed by law. (68A Stat. 855; 26 U.S.C. 7212)
[bold emphasis added]
The only other published regulation with reference to 26 U.S.C. 7212 [sic] is found in 27 CFR, subpart 296.80, which relates to the penalty for perjury in any false or fraudulent claim made under 26 U.S.C. sections 7206 and 7207 (also in subtitle F). Defendant has not been charged with perjury or with violating sections 7206 or 7207.
Historically, the regulations promulgated and implemented under 26 U.S.C. 7212 [sic] have remained substantially unchanged, and have not been altered by Congressional action. As such, they should be given considerable weight by this Court; they are deemed to have received Congressional approval, and have the force and effect of law. See Estate of Iverson v. Commissioner of Internal Revenue, 333 U.S. 496 (1958); United States v. Correll, 389 U.S. 299 (1967).
“It is the province of the Congress and the Commissioner of Internal Revenue, not the courts, to make appropriate adjustment in rules and regulations for enforcement of the Internal Revenue Code, 26 U.S.C.A. section 7805(a).” United States v. Correll supra; also United States v. Mersky, 361 U.S. 431 (1960).
“Once promulgated these regulations, called for by the statute itself, have the force of law, and violations thereof incur criminal prosecutions, just as if all the details had been incorporated into the congressional language. The result is that neither the statute nor the regulations are complete without the other, and only together do they have any force.” United States v. Mersky, supra at 438.
Further, we note that the Supreme Court has relied upon regulations, stating that “… this Court customarily defers to regulation, which, if found to implement the congressional mandate in some reasonable manner, must be upheld … Congress has delegated to the [Secretary of the Treasury and his delegate, The] Commissioner [of Internal Revenue] not the courts, the task of prescribing all needful rules and regulations for the enforcement of the Internal Revenue Code, 26 U.S.C. section 7805(a) …. It also helps guarantee that the rules will be written by the masters of the subject, who will be responsible for putting the rules into effect.” National Muffler Dealers Association v. United States, 440 U.S. 472 at 477 (1979).
The regulations
cited above have been written by the masters of the subject, and it is
not within the authority and purview of this Court, or the prosecution, to
fudge or change the language of the regulations implementing 26 U.S.C. 7212(a).
Defendant has now accurately characterized the charge in Count THREE of the so-called indictment. Plaintiffs (plural) have failed to state a claim upon which relief can be granted.
This Court may not interpret the terminology of the indictment as law. This Court must apply the law itself to the facts of the case.
It is not within the authority or province of this Court to re-characterize the terminology of the indictment as the law, in order to legislate and violate the Separation of Powers Doctrine, simply to obtain a conviction against Defendant.
The U.S. Constitution mandates that: (1) all legislative power shall be vested in the Congress; (2) Congress shall make all Laws necessary and proper for carrying into execution Powers vested by the Constitution in the general government, or any Department or Officer thereof; and (3) the Judges in every State shall be bound thereby. See Article I, Section 8, Clause 18; Article VI, Section 2.
“Since Congress could delegate its authority, it could also delegate the manner in which that authority is to be exercised.” Hotch v. United States, 212 F.2d 280, 283 (9th Cir. 1954).
In this case,
Defendant has shown, by evidencing the federal regulatory process, delegated to
the United States federal government by Congressional mandate, that Defendant
committed no such offense.
For example, we note that the Tax Division of the U.S. Department of Justice is clearly prohibited, and lacks any authority, to bring a charge under 26 U.S.C. 7212(a) by its own regulatory and Congressionally mandated process, which this Court is bound thereby to observe and to effect.
For all federal tax purposes, federal regulations govern. Dodd v. United States, 323 F.Supp. 785 (1963). Was the panel of federal citizens who “indicted” Defendant ever shown any of the regs for 7212?
In this case, 26 U.S.C. 7212(a) can only apply upon violations of regulations promulgated by the Secretary and, if the Secretary were to do nothing, the statute would impose no penalties on anyone. See, In pari materia, California Bankers Association v. Schultz, 416 U.S. 21, 26 (1974).
The court’s interpretation of the statute is so inextricably intertwined with the regulations, that an interpretation of the regulations necessarily is a construction of the statute in question. United States v. Mersky, 361 U.S. 431 (1960).
Alternatively, the government should be ordered to prove each element of the offense charged under 26 U.S.C. 7212(a), namely, that Defendant interfered with an ATF officer acting in his official capacity. But, this would require Plaintiffs to amend the so-called indictment.
This Court will also please take careful note of 28 CFR, Subpart N –- Tax Division, section 0.70 (General functions) which states that the following functions are assigned to, and shall be conducted, handled, or supervised by, the Assistant Attorney General, Tax Division:
(b) Criminal proceedings arising under the internal revenue laws, except the following: Proceedings pertaining to misconduct of Internal Revenue Service personnel, to taxes on liquor, narcotics, firearms, coin-operated gambling and amusement machines, and to wagering, forcible rescue of seized property (26 U.S.C. 7212(b)), corrupt or forcible interference with an officer or employee acting under the Internal Revenue laws (26 U.S.C. 7212(a)) …
[bold emphasis added]
Thus, it is indisputable that the “Tax Division” cannot, and is not authorized to, charge or prosecute an alleged violation of 26 U.S.C. 7212(a); such a charge or prosecution is expressly excluded from those criminal proceedings which DOJ Tax Division is authorized to conduct.
Defendant has demonstrated by the record, and in this brief, that the charging statute is being unconstitutionally applied to Defendant.
Count THREE should be dismissed with prejudice and without delay.
REMEDY
REQUESTED
For all of the supplemental reasons stated herein, and in the original MOTION TO DISMISS COUNT THREE, this honorable Court should dismiss Count THREE 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 17, 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 COUNT THREE:
26 U.S.C. 7212(a) [sic]
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 St., 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
17, 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”:
United States Code, 1976 Edition
Supplement V
Volume Three:
Title 21 – Food and Drugs
to
Title 26 – Internal Revenue Code
U.S. Government Printing Office
Washington : 1982
Attachment “B”:
“Uncertainty
of the Federal Income Tax Laws”
by
Lowell H. (“Larry”) Becraft
from Internet URL:
http://givemeliberty.org/features/taxes/oklahoma/uncertain.htm