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],      ) NOTICE OF MOTION AND

                                ) MOTION TO DISMISS COUNTS

     v.                         ) FOUR THRU SEVEN OF INDICTMENT,

                                ) BY AFFIDAVIT:

DONALD E. WISHART [sic],        )

                                ) Rule 48: Federal Rules

          Defendant [sic].      ) of Criminal Procedure (“FRCrP”).

                                )

________________________________) Date: ________  Time: ________

 

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 present this, His AFFIDAVIT OF APPLICABLE LAW AND DENIAL OF SPECIFIC LIABILITY FOR FEDERAL INCOME TAXES DURING CALENDAR YEARS 1995 THRU 1998 INCLUSIVE, executed under 28 U.S.C. 1746(1), i.e. “outside” the United States;  to move this honorable Court for an ORDER dismissing COUNTS FOUR thru SEVEN of the instant “indictment” [sic] with prejudice;  and, to provide formal NOTICE to all interested Parties of same.

See 26 U.S.C. 7203 (not enacted into positive law, and no regs).

28 U.S.C. 1746(2) governs the perjury jurat on IRS Form 1040, i.e. “inside” the United States (no Notary Public required for 1040).

PREAMBLE

The undersigned Affiant, Donald E. Wishart, Sui Juris, is of majority age and of sound mind, and has researched the statutes and regulations as stated herein, and is fully competent to testify as to His Personal knowledge and belief of the truth of all the following:

 

AFFIDAVIT OF APPLICABLE LAW AND

DENIAL OF SPECIFIC LIABILITY FOR FEDERAL INCOME TAXES

DURING CALENDAR YEARS 1995 THRU 1998 INCLUSIVE

1.   That, during calendar years 1995 thru 1998 inclusive, Affiant was a Citizen of California State, which was one of the States of the Union of several States;  that, as such, His birth and declared political status placed Him in the class of natural born Persons who were non-immigrant “nonresident aliens” with respect to the “United States”, as those terms were defined by the Internal Revenue Code (“IRC”) §§ 865(g)(1)(B), 7701(b)(1)(B), 7701(a)(9) and 7701(a)(10);  see also the Qualifications Clauses and 28 U.S.C. 2201;  and,

2.   That Congress, acting in its municipal capacity, enacted IRC Subchapter N of Chapter 1, in order to separate the 50 Union States from the “United States” (i.e. the District of Columbia and its Territories, Possessions and Enclaves, a/k/a the federal zone);  and,

3.   That a cursory examination of said Subchapter N reveals that all “gross income” received from sources within the 50 Union States was defined at § 862 as “income from sources without the United States”;  that all income derived from sources within the District of Columbia (i.e. the “United States”), or “effectively connected with a United States trade or business”, was income from sources within the “United States” (i.e. the federal zone);  and,

4.   That everyone who inhabited the 50 Union States, who was neither a “citizen of the United States” nor a “resident alien”, was by definition a “nonresident alien”, as that term was defined at IRC § 7701(b)(1)(B);  see pleadings and opinion in Brushaber v. Union Pacific Railroad Company (“UPRR”), 240 U.S. 1 (1916), and Treasury Decision (“T.D.”) 2313, a true and correct copy of which is attached hereto and incorporated by reference, as if set forth fully herein;  as a Citizen of New York State living in Brooklyn, Frank R. Brushaber was the nonresident alien to which T.D. 2313 refers;  as for the UPRR, Congress can only create a corporation in its capacity as the legislature for the federal zone;  see Daly et al. v. The National Life Insurance Company of the USA, Indiana Supreme Court (1878);  and,

5.   That Affiant was not a “resident alien”, as that term was defined at IRC § 7701(b)(1)(A), because:  (i) He was never lawfully admitted for permanent residence, (ii) He did not satisfy the substantial presence test, and (iii) He never elected to be treated as a “resident” of the “United States” (i.e. the federal zone);  and,

6.   That all compensation received by Affiant from professional services during calendar years 1995 thru 1998 inclusive, was from sources without, and not effectively connected with, the “United States” (i.e. the federal zone);  see discussion of Sources at 26 CFR 1.861-1, Computation of taxable income from sources at 26 CFR 1.861-8, and Operative sections at 26 CFR 1.861-8(f)(1) et seq.;  during said calendar years, Affiant was not involved in any taxable activities governed by sections listed at 26 CFR 1.861-8(f)(1)(i) - (vi);  and,

7.   That Black's Law Dictionary, 6th Edition, defined the term “United States” to mean “the territory over which sovereignty of the United States extends”;  the term “sovereignty” in said definition means federal municipal jurisdiction, i.e. the federal zone;  and,

8.   That Citizens of ONE OF the several Union States were those who were born or naturalized within the “freely associated compact states” (i.e. 50 Union States a/k/a “countries”), as those terms were utilized by Congress at 28 U.S.C. 297, as lawfully amended;  and,

9.   That “citizens of the United States” [sic] (a/k/a federal citizens) were those persons who were citizens of the District of Columbia and resident any place in the world, and also those people who were residents of any territory which was subject to the exclusive legislative jurisdiction of the “United States”, which included only the Territories, Possessions, Enclaves and the “Federal States” [sic];  see Title 4, U.S.C., Chapter 4, § 110(d), for a definition of “Federal States” [sic];  California State is now, and was, during the calendar years in question, decidedly not a Federal State or Federal area; and,

10.           That, for purposes of subtitle A, Congress created a “word of art” definition for the terms “State” and “United States”;  said terms were defined at IRC §§ 7701(a)(9) and (10), then clearly amended to exclude Alaska and Hawaii when these Territories joined the Union:

 

(9)           United States. -- The term “United States” when used in a geographical sense includes only the States and the District of Columbia.

 

(10)      State. -- The term “State” shall be construed to include the District of Columbia, where such construction is necessary to carry out provisions of this title.

 

[bold emphasis added]

11.           That Congress imposed a tax on petroleum at IRC § 4612 (not subtitle F), and used a different “word of art” definition for the term “United States” in that section;  said “word of art” definition was found at IRC § 4612(a)(4)(A), to wit:

 

(4)           United States. –

 

(A)           In general. -- The term “United States” means the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, any possession of the United States, the Commonwealth of the Northern Mariana Islands, and the Trust Territory of the Pacific Islands.

[bold emphasis added]

12.  That Congress excluded the 50 Union States from the definition of “United States”, for purposes of subtitle A, and defined all “income” from these 50 States as “income from sources without [read ‘outside’] the United States”, at IRC § 862;  and,

13.  That Congress expressly stated at IRC § 864(c)(4)(A) that:

... no income, gain, or loss from sources without the United States shall be treated as effectively connected with the conduct of a trade or business within the United States.

 

14.           That, during calendar years 1995 thru 1998 inclusive, Affiant was neither a “citizen of the United States” nor was He a “resident” or inhabitant of the “United States”, i.e. the District of Columbia, its Territories, Possessions, Enclaves or Federal States, as those terms were defined supra;  and,

15.           That all compensation received by Affiant during calendar years 1995 thru 1998 inclusive, consisted of “compensation for labor or personal services performed without [outside] the United States”, as that term was defined by Congress at IRC § 862(a)(3);  and,

16.           That Congress treated “compensation for labor or personal services performed without the United States” as income from sources without the United States, at IRC § 862(a)(3);  and,

17.           That IRC § 864 “Definitions” stated:

 

(b)                                   Trade or Business within the United States. -- For purposes of this part, part II, and chapter 3, the term “trade or business within the United States” includes the performance of personal services within the United States at any time within the taxable year ...

 

(c)(4) Income from sources without the United States. --

 

(A)           ... no income, gain, or loss from sources without the United States shall be treated as effectively connected with the conduct of a trade or business within the United States.

 

[bold emphasis added]

18.           That the word “certain” was defined as:

 

Certain.  Ascertained; precise; identified; settled;  exact;  definitive;  clearly known;  unambiguous;  or, in law, capable of being identified or made known, without liability to mistake or ambiguity, from data already given.  Free from doubt.

[Black's Law Dictionary, Sixth Edition]

[bold emphasis in original]

19.           That the IRS Instructional Booklet for Form 1040, during various years in recent history, stated that “certain earned income” was “NONTAXABLE” [sic];  and,

20.           That, in general, Congress defined the term “earned income” to mean “wages, salaries, or professional fees ...” at  IRC § 911(d)(2)(A);  see IRS Form 2555;  OMB control number for 1040;  and,

21.           That Congress excluded from taxation certain “earned income”, as that term was defined at IRC § 911(d)(2)(A);  and,

22.           That there were two (2) classes of citizenship within the United States of America, as fully explained by the Supreme Court of the United States, and other American courts, in the following cases:

Before the 14th amendment [sic] in 1868:

 

... [F]or it is certain, that in the sense in which the word “Citizen” is used in the federal Constitution, “Citizen of each State,” and “Citizen of the United States***,” are convertible terms;  they mean the same thing;  for “the Citizens of each State are entitled to all Privileges and Immunities of Citizens in the several States,” and “Citizens of the United States***” are, of course, Citizens of all the United States***.

 

[44 Maine 518 (1859), Hathaway, J. dissenting]

[italics in original, underlines & C's added]

 

After the 14th amendment [sic] in 1868:

 

It is quite clear, then, that there is a citizenship of the United States** and a citizenship of a State, which are distinct from each other and which depend upon different characteristics or circumstances in the individual.

 

[Slaughter House Cases, 83 U.S. 36]

[(1873) emphasis added]

 

The first clause of the fourteenth amendment made negroes citizens of the United States**, and citizens of the State in which they reside, and thereby created two classes of citizens, one of the United States** and the other of the state.

[Cory et al. v. Carter, 48 Ind. 327]

[(1874) headnote 8, emphasis added]

 

We have in our political system a Government of the United States** and a government of each of the several States.  Each one of these governments is distinct from the others, and each has citizens of its own ....

 

[U.S. v. Cruikshank, 92 U.S. 542]

[(1875) emphasis added]

 

One may be a citizen of a State and yet not a citizen of the United States.  Thomasson v. State, 15 Ind. 449;  Cory v. Carter, 48 Ind. 327 (17 Am. R. 738);  McCarthy v. Froelke, 63 Ind. 507;  In Re Wehlitz, 16 Wis. 443.

 

[McDonel v. State, 90 Ind. 320, 323]

[(1883) underlines added]

 

A person who is a citizen of the United States** is necessarily a citizen of the particular state in which he resides.  But a person may be a citizen of a particular state and not a citizen of the United States**.  To hold otherwise would be to deny to the state the highest exercise of its sovereignty, -- the right to declare who are its citizens.

 

[State v. Fowler, 41 La. Ann. 380]

[6 S. 602 (1889), emphasis added]

 

The first clause of the fourteenth amendment of the federal Constitution made negroes citizens of the United States**, and citizens of the state in which they reside, and thereby created two classes of citizens, one of the United States** and the other of the state.

 

[4 Dec. Dig. '06, p. 1197, sec. 11]

[“Citizens” (1906), emphasis added]

 

There are, then, under our republican form of government, two classes of citizens, one of the United States** and one of the state.  One class of citizenship may exist in a person, without the other, as in the case of a resident of the District of Columbia;  but both classes usually exist in the same person.

[Gardina v. Board of Registrars, 160 Ala. 155]

[48 S. 788, 791 (1909), emphasis added]

 

There is a distinction between citizenship of the United States** and citizenship of a particular state, and a person may be the former without being the latter.

 

[Alla v. Kornfeld, 84 F.Supp. 823]

[(1949) headnote 5, emphasis added]

 

A person may be a citizen of the United States** and yet be not identified or identifiable as a citizen of any particular state.

[Du Vernay v. Ledbetter, 61 So.2d 573]

[emphasis added]

 

... citizens of the District of Columbia were not granted the privilege of litigating in the federal courts on the ground of diversity of citizenship.  Possibly no better reason for this fact exists than such citizens were not thought of when the judiciary article [III] of the federal Constitution was drafted.  ... citizens of the United States** ... were also not thought of;  but in any event a citizen of the United States**, who is not a citizen of any state, is not within the language of the [federal] Constitution.

 

[Pannill v. Roanoke, 252 F. 910, 914]

[dispositive case; emphasis added]

 

23.  That Affiant did not ever knowingly, intentionally, or voluntarily make any agreement to be partially liable [sic] for the federal debt, nor did He ever “elect” to be treated as a “resident” of the “United States” under 26 CFR part 5h and IRC §§ 6013(g) & (h), by the signing Form 1040 or any other related “U.S.” or “U.S. Individual” forms, and none of Affiant's compensation for professional services can be taxed under the provisions of 7 CFR Part 3;  and,

24.  That Affiant did not voluntarily agree to use the federal obligations of the “United States”, as those terms were defined at 18 U.S.C. 8;  and, if any such unknown contract was entered into, it was by means of deliberate deception and the withholding of pertinent and material facts, which deception and withholding of facts together constitute constructive fraud by agents of the United States and are, therefore, null and void ab initio, under all forms of Law;  and,

25.           That, at no time during calendar years 1995 thru 1998 inclusive, was Affiant ever a “Withholding agent”, as that term was defined at IRC § 7701(a)(16):

 

Withholding agent. -- The term “withholding agent” means any person required to deduct and withhold any tax under the provisions of section 1441, 1442, 1443, or 1461.

 

[bold emphasis added]

26.           That, to the best of Affiant's information, knowledge, and belief, the only IRC statutes which imposed a specific liability for subtitle A income taxes were those which were found in the IRC sections listed in the definition of “Withholding agent” supra, to wit:  §§ 1441, 1442, 1443, and 1461;  and,

27.           That, to the best of Affiant's knowledge, no penalties can attach to Affiant's conduct, in the absence of clear and specific expression(s) of liability by lawful Congressional statute(s);  and,

28.           That experts in the offices of the Legislative Counsel and the Congressional Research Service have advised Rep. Barbara Kennelly (D. Conn.) that the definition of the term “State” at IRC § 3121(e) expressly restricts the meaning of that term to the named federal Enclaves, Territories, and Possessions of the District of Columbia, Puerto Rico, the Virgin Islands, Guam, and American Samoa, and that all other land areas are intentionally excluded from said definition;

29.           That Affiant’s MOTION TO DISCLOSE INDICTING PANEL’S RECORD OF PROCEEDINGS, now filed, proves by means of verifiable analytical methods that no substantive, legislative regulations have been published in the Federal Register, implementing either 26 U.S.C. 7203, or IRC § 7203;  what implementing regulations do exist, appear to require activity governed by Title 27, U.S.C., i.e. alcohol, tobacco, and firearms;  Affiant specifically denies ever having been involved in alcohol, tobacco, firearms, or any other excise-taxable activities during the calendar years 1995 A.D. thru 1998 A.D. inclusive;  and,

30.           The public protection clauses in the Federal Register Act, and in the Administrative Procedures Act, make it very clear that no fine, penalty, or forfeiture can be imposed upon Affiant, absent regulations which have been duly promulgated and published in the Federal Register;  the “code” at 26 U.S.C. 7203 appears to have “general applicability” specifically because it prescribes a penalty;  any statute has general applicability if it prescribes a penalty;

31.           Moreover, IRS internal “housekeeping” regulations have no authority whatsoever in law, raising the possibility that cash rewards paid under the Performance Management and Recognition System (“PMRS”), under color of the IRS Internal Revenue Manual, did in fact violate the Anti-Kickback Act of 1986;  Congress repealed the PMRS in 1993;  see also all cases cited in Attachment “B” incorporated infra;  and,

32.           Offers or payments of cash, as incentives to indict “illegal tax protesters” [sic], constitute probable cause to charge the responsible person(s) also with jury tampering and misleading conduct, in violation of 18 U.S.C. 1513;  Affiant has been corruptly mis-classified as an “illegal tax protester” via a Transaction Code 148 (“TC-148”) in His Individual Master File (“IMF”), resulting in demonstrable prejudice that now manifests itself in the instant “criminal” (read “political”) prosecution;  see also Attachment “C”.

 

INCORPORATION OF ATTACHMENTS

Affiant hereby incorporates the following Attachments by reference, as if set forth fully herein, to wit:

 

Attachment “A”:

Treasury Decision 2313

Dated:  March 30, 1916

 

Attachment “B”:

Letter to Judge Alex Kozinski (9th Cir.)

Dated:  September 3, 1996

in re:

Performance Management and Recognition System

(“PMRS”)

 

Attachment “C”:

Reply from Mark L. Zolton,

IRS Tax Law Specialist

Dated:  September 12, 1996

in re:

FOIA Request for All PMRS Records

 

CONCLUSIONS

Accordingly, for all of the reasons stated above, Affiant specifically denies any obligation(s) or duty(s) to file returns, or to pay income taxes imposed by IRC subtitle A, for the period covered by calendar years 1995 Anno Domini thru 1998 Anno Domini, inclusive.

This Court has no original jurisdiction or authority to issue any relief, when no crime has been committed, or even properly alleged, due chiefly to the “indictment’s” failure to allege that Affiant had any income whatsoever from sources inside the United States [sic], or from sources effectively connected with the conduct of a United States trade or business, during calendar years 1995 thru 1998, inclusive.

For purposes of income taxes imposed by subtitle A, the term “United States” expressly excludes the 50 States;  for purposes of excise taxes imposed on petroleum, for example, the term “United States” expressly includes the 50 States.  Therein lies a major fraud.

Confer at “Inclusio unius est exclusio alterius” in Black’s Law Dictionary, Fifth Edition (With Pronunciations);  and IRC § 3121(e).

COUNTS FOUR THRU SEVEN cite a “code” [sic] which has never been enacted into positive law, and for which no substantive, legislative regulations have ever been published in the Federal Register.

COUNTS FOUR THRU SEVEN also fail to allege that Affiant was ever engaged in any excise-taxable activities or privileges, such as alcohol, tobacco, or firearms.

Therefore, Affiant had no legal obligation or duty to file any income tax return(s), following the close of said calendar years.

Said “indictment” is fatally defective on COUNTS FOUR THRU SEVEN.

Further Affiant sayeth naught.

 

REMEDY REQUESTED

All premises having been duly considered, Defendant moves this honorable Court for an ORDER dismissing COUNTS FOUR THRU SEVEN of the instant “indictment”, with prejudice, for failing to state any claims upon which relief can be granted, due in part to a demonstrated lack of substantive, legislative regulations for 26 U.S.C. 7203;  in part for failing to allege that Defendant had any income whatsoever from sources inside the United States (federal zone);  and in part for failing to allege that Defendant was engaged in any excise-taxable activities or privileges during calendar years 1995 thru 1998 A.D.

 

VERIFICATION

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 25, 2000 A.D.

 

 

Respectfully submitted,

 

/s/ Donald E. Wishart

 

Donald E. Wishart, Sui Juris

Citizen of California State,

Federal Witness and Victim (18 U.S.C. 1512, 1513)

(expressly not a “citizen of the United States” [sic])

 

All Rights Reserved without Prejudice

 

 

PROOF OF SERVICE

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 MOTION TO DISMSS COUNTS

FOUR THRU SEVEN OF INDICTMENT,

BY AFFIDAVIT:

Rule 48, Federal Rules of Criminal Procedure

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:

 

Robert S. Mueller III             John S. Gordon

Office of the U.S. Attorney       Office of the U.S. Attorney

280 S. First Street, Ste. 371     312 North Spring Street

San Jose [ZIP code exempt]        Los Angeles [ZIP code exempt]

CALIFORNIA, USA                   CALIFORNIA, USA

 

Thomas S. DiLeonardo              Ronald A. Cimino

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

 

John Paul Reichmuth               Billy Brown

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

Attention:  Legal Department

2121 South El Camino Real

San Mateo [ZIP code exempt]

CALIFORNIA, USA

 

 

Executed on September 25, 2000 A.D.

 

/s/ Donald E. Wishart

 

Donald E. Wishart, Sui Juris

Citizen of California State,

Federal Witness and Victim (18 U.S.C. 1512, 1513)

(expressly not a “citizen of the United States” [sic])

 

All Rights Reserved without Prejudice

 

 

Attachment “A”:

 

Treasury Decision 2313

dated:  March 30, 1916

 

 

Attachment “B”:

 

Letter to Judge Alex Kozinski (9th Cir.)

dated:  September 3, 1996

in re:

Performance Management and Recognition System

(“PMRS”)

 

 

Attachment “C”:

 

Reply from Mark L. Zolton,

IRS Tax Law Specialist

dated:  September 12, 1996

in re:

FOIA Request for All PMRS Records