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
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”:
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”:
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.
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.
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
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):
AND MOTION
TO DISMSS COUNTS
FOUR THRU
SEVEN OF INDICTMENT,
BY
AFFIDAVIT:
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 S. First
Street, 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
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”:
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”:
IRS Tax
Law Specialist
dated: September 12, 1996
in re:
FOIA
Request for All PMRS Records