Donald E. Wishart, Sui Juris
Citizen of California State
and Federal Witness [sic]
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], ) NOTICE OF
MOTION AND
) MOTION FOR BILL OF
PARTICULARS
v. )
ON COUNTS THREE THRU SEVEN:
)
DONALD E. WISHART [sic], )
) Rule 7(f): Federal Rules of
Defendant [sic] ) Criminal Procedure (“FRCrP”);
)
________________________________)
COMES NOW Donald E. Wishart, Sui Juris, Citizen of California State, expressly not a “citizen of the United States” [sic], and Defendant in the above entitled matter (hereinafter “Defendant”), to move this honorable Court for an ORDER directing the prosecution to file and serve upon Defendant a written Bill of Particulars, setting out in sufficient detail information which is absolutely required for Defendant adequately to prepare His defense.
Counts Four thru Seven all state that Defendant “was required by law … to file an income tax return”, but that “law” is never cited. Defendant specifically denies that any such “law” required Him to file an income tax return for any of the calendar years in question.
Accordingly, the Bill of Particulars must set forth, in sufficient detail, all of the following information, which is absolutely required for Defendant adequately to prepare His defense against Counts Three thru Seven:
1. the statute(s), if any, which created a specific liability in
Defendant for taxes imposed by Subtitle A of the Internal Revenue Code for each
calendar year in question;
2. all published regulation(s) which implemented the statute(s)
identified in point 1 above;
3. the statute(s), if any, which created a specific legal duty for
Defendant to file an income tax return for each calendar year in question;
4. all published regulation(s) which implemented the statute(s)
identified in point 3 above;
5. the specific form(s) which Defendant is alleged to have failed to
make;
6. the specific and relevant authority(s) that would authorize the
Director, or District Director, of the IRS to require Defendant to make a
return; see 26 CFR 1.6001-1(d)
[conditions precedent:] “… by notice served upon him, to make such returns,
render such statements, or keep such specific records as will enable the
district director to determine whether or not such person is liable for
tax under subtitle A of the Code, including qualified State individual income
taxes …” [bold emphasis added], so as to determine if Defendant had ANY
Subtitle A personal income tax liability under the Internal Revenue
Code;
7. the Office of Management and Budget (“OMB”) control number(s)
assigned to the regulation(s), form(s), e.g. 1040, 720, 2555, etc., and
instruction(s) for completing said returns, as required by 44 U.S.C. 3501 thru 3520, inclusive;
8. with respect to the allegations that Defendant received “gross
income”, state in concise and particular detail the exact source(s) of
same, and indicate whether or not those sources were inside the “United States”
or outside the “United States”, as required by IRC 861 and 862, as implemented by
substantive, legislative regulations found at 26 CFR 1.861-1, to wit: “Income
from sources within the United States [sic] – (a) Categories of
income. Part 1 (section 861 and
following), subchapter N, chapter 1 of the Code, and the regulations thereunder
determine the sources of income for purposes of the income tax”; see also 26 CFR 1.861-8(a): “The rules contained in this section apply
in determining taxable income of the taxpayer from specific sources and
activities under other sections of the Code, referred to in this section as operative
sections [sic]”; and 26 CFR
1.861-8(e)(11)(f): “Miscellaneous matters -– (1) Operative
sections. The operative
sections of the Code which require the determination of taxable income
of the taxpayer from specific sources or activities and which give
rise to statutory groupings to which this section is applicable include the
sections described below” (i.e. subsections (i) thru (vi)(M)) [bold emphasis added];
9. state, in concise and particular detail, the taxable activity(s)
from item 8 supra, and from (i) and (vi)(M) supra, in which it is
alleged that Defendant was engaged;
10. state, in concise and particular detail, the
statute(s) and corresponding published regulation(s) that levy a tax upon the
taxable activity(s) in which it is alleged that Defendant was engaged (see
points 8 and 9 supra);
11. state in concise and particular detail the
statute(s) and corresponding regulations which create a specific liability for
taxes levied upon said activity(s).
POINTS AND AUTHORITIES I. DEFENDANT WILL BE UNABLEADEQUATELY TO DEFEND AGAINSTTHE INSTANT CHARGES WITHOUTFURTHER PARTICULARIZING OF ALLEGATIONS
Rule 7(f) of the Federal Rules of Criminal Procedure provides that the Court may direct the filing of a Bill of Particulars upon a Motion by the Defendant.
The functions of such a Motion are to provide a defendant with information about the details of the charges necessary to the preparation of the defense, avoid prejudicial surprise at trial, and protect against a second prosecution based upon the same set of facts. See Yeargain v. United States, 314 F.2d 881, 882 (9th Cir.1963); United States v. Bearden, 423 F.2d 805, 8098 (5th Cir.1970), cert. denied, 400 U.S. 836.
As originally promulgated, Rule 7(f) required a showing of cause before a Bill would lie. That requirement was stricken by the amendment of 1966, which was expressly designed "to encourage a more liberal attitude by the courts towards bills of particulars." See Rule 7(f), Advisory Committee note to the 1966 amendment.
The granting, or refusal to grant, a Bill of Particulars is a matter within the discretion of the trial court. See United States v. Dreitzler, 572 F.2d 539, 553 (9th Cir. 1978).
The test in ruling on such a Motion as this, is whether deprivation of the information sought will render the Defendant unable to prepare a defense, avoid surprise, or avoid later risking double jeopardy. See United States v. Addonizio, 451 F.2d 49, 63-64 (3d Cir.1971), cert. den. 405 U.S. 936.
A defendant should not be deprived of information needed to prepare a defense, simply because the information might be used by the government as evidence. See United States v. Crisona, 271 F.2d 156 (S.D.N.Y.1967).
The simple fact that an indictment may be sufficient is not an argument against granting a Bill of Particulars. See Gisport v. United States, 445 U.S. 946 (1980).
Moreover, a Motion for Bill of Particulars cannot be denied on the theory a defendant "knows" what he or she "did." Such a ruling effectively stands the presumption of innocence on its head, in assuming a defendant has knowledge of his or her own acts, which were in fact "guilty." See United States v. Tanner, 279 F.Supp. 683, 695-696 (D.Del.1971).
Although a defendant may not use a Bill of Particulars to ascertain all of the evidence which the government intends to produce, a defendant is entitled to know the theory of the government's case as to each count. See Yeargain v. United States, supra, 314 F.2d at 882.
As noted in the Opinion of Judge Whittaker, cited with approval in the advisory committee note to the 1966 amendment to Rule 7(f):
It seems quite clear that where charges in an indictment are so general that they do not sufficiently advise the defendant of the specific acts with which he is charged, a bill of particulars should be ordered.
United States v. Smith, 16 F.R.D. 372, 375
(W.D.Mo.1954)
Moreover, because a Bill of Particulars has a fundamental connection to the Sixth Amendment Right to defend, doubt must be resolved in favor of disclosure and the public interest, in giving the accused the Right to mount a defense. See United States v. Tanner, supra, 279 F.Supp. at 474; United States v. Manetti, supra, 323 F.Supp. at 696.
Notably, prejudice to a defendant has been defined by Chief Justice William H. Rehnquist to be the "impairment of the ability to mount a defense." See United States v. Valenzuela-Bernal, 458 U.S. 858, 869 (1982) [bold emphasis added].
The instant indictment contains the very form of generalized charges against which a Bill of Particulars is designed to protect. Without further particularization, Defendant will not be able fully to exercise His fundamental Right to a fair trial, under the Fifth and Sixth Amendments.
Defendant’s ability to mount a defense will be irreparably impaired.
II.
THE INDICTMENT
DOES NOT ADEQUATELY APPRISE
THE DEFENDANT OF
THE NATURE AND CAUSE
OF THE CHARGES AGAINST HIM.
The charges in the indictment herein are glaringly void of requisite information concerning the specific acts involved.
The charges in no way enable the preparation of a defense.
All information requested herein is essential to remedy the indictment's deficiencies, by allowing Defendant to prepare a defense.
In evaluating any motion for a Bill of Particulars, the Court is called upon to make a "particularized decision" which takes into account the amount of facts stated in the indictment. See United States v. Thevis, 474 F.Supp. 117, 123 (N.D.Ga. 1979); United States v. Barket, 380 F.Supp. 1018, 1021 (W.D.Mo. 1974).
It is well established that a defendant should not be deprived of a Bill of Particulars simply because he requests information which might be used by the government as evidence. See United States v. Crisona, supra, 271 F.Supp. at 156.
III.
THE SIXTH AMENDMENT MANDATES
DISCLOSURE
OF THE FACTUAL INFORMATION SOUGHT HEREIN.
A Bill of Particulars, unlike most criminal discovery devices, directly implicates the Sixth Amendment's guarantee of the Right to make a vigorous and prepared defense in a criminal case. See United States v. Tanner, supra, 279 F.Supp. at 473-74.
When the charging document lacks sufficient particularity to allow a defendant to prepare a defense, as here, the Defendant's ability to confront adverse witnesses and to use compulsory process is seriously inhibited, if not irreparably obstructed.
Obviously, due process requires that an accused enjoy the opportunity to defend, including being able to examine witnesses, offer evidence in defense, and be represented or assisted by a fully prepared trial counsel. See In re Oliver, 333 U.S. 257 (1948).
Denial of the Right to defend is an error of constitutional magnitude, requiring proof that the error involved was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 23-24 (1967).
Therefore, any judicial doubt concerning Defendant's Motion herein must be resolved in favor of disclosure, due to the fundamental public interest in giving the accused a right to mount a defense. See United States v. Manetti, supra, 323 F.Supp. at 696. Any impairment of the ability to mount a defense constitutes prejudice. United States v. Valenzuela-Bernal, supra, 458 U.S. at 869.
Any attempt to defend against the charges in the instant indictment, without further particularization, will result in manifest prejudice to Defendant. For all the reasons stated above, this Court is respectfully requested to grant this Motion for a complete Bill of Particulars, to avoid all prejudice and a violation of Defendant's fundamental Right to a fair trial, as guaranteed by the Sixth Amendment. Defendant also asserts a right to a complete Bill of Particulars under the principle of reciprocal discovery. (See: Rule 16(b)(1); Defendant’s FIRST CROSS-COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, filed in part formally to discover the law(s), if any, which require IRS employees to execute and file a valid Oath of Office.)
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).
Dated: September 17, 2000 A.D.
Respectfully submitted,
/s/ Donald E. Wishart
Donald E. Wishart, Sui Juris
Citizen of California State and
Federal Witness (18 U.S.C. 1512, 1513)
(expressly not a “citizen of the United States” [sic])
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):
NOTICE OF MOTION
AND
ON COUNTS THREE
THRU SEVEN:
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
U.S. Department of Justice U.S. Department of Justice
West. Criminal Enforcement Sec. West. Criminal Enforcement Sec.
P.O. Box 972, Ben Franklin Stn. P.O Box 972, Ben Franklin Stn.
Washington [ZIP code exempt] Washington [ZIP code exempt]
DISTRICT OF COLUMBIA, USA DISTRICT OF COLUMBIA, USA
Federal Public Defender’s Office
160 West Santa Clara Street, Suite 575
San Jose [ZIP code exempt]
CALIFORNIA, USA
Executed on September 17, 2000 A.D.
/s/ Donald E. Wishart
Donald E. Wishart, Sui Juris
Citizen of California State and
Federal Witness (18 U.S.C. 1512, 1513)
(expressly not a “citizen of the United States” [sic])
All Rights Reserved without Prejudice