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 TO DISCLOSE
v. ) INDICTING PANEL’S
) RECORD OF PROCEEDINGS
DONALD E.
WISHART [sic], )
) Rule 6(e)(3)(C):
Federal Rules
Defendant [sic] ) of 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
compelling the Office of the United States Attorney to serve upon Defendant a
certified copy of any recording, or reporter’s notes, or any transcript
prepared therefrom, of all proceedings of the panel
alleged to be a lawfully convened federal grand jury in the instant case, and
to provide formal NOTICE to all interested Party(s) of this MOTION TO DISCLOSE.
Pursuant
to FRCrP Rule 6(e)(1), “The recording or reporter’s notes or any transcript
prepared therefrom shall remain in the custody or
control of the attorney for the government unless otherwise ordered by
the court in a particular case.” [bold emphasis added]
Furthermore, pursuant to FRCrP
Rule 6(e)(3)(C)(ii), “Disclosure … may also be made … when permitted by a court
at the request of the defendant, upon a showing that grounds may exist for a
motion to dismiss the indictment because of matters occurring before the grand
jury.” [bold
emphasis added]
Defendant hereby testifies that grounds do exist
for a motion to dismiss the instant indictment, with prejudice, because
of matters which occurred before the panel of federal citizens alleged to be a
lawfully convened federal grand jury in the instant case.
The grounds for a
motion to dismiss include, but are not limited to, probable fraud, perjury, and
misprision of perjury by omission upon the panel, by one or more witnesses and
attorneys for the government.
Also, conspiracy, deprivation of Defendant’s fundamental
Rights, retaliation against a Federal Witness, and racketeering have already
occurred, prior to their testimony, all of which were systematically and
fraudulently concealed from said panel.
Last but not least, Defendant hereby offers to prove
major fraud against the United States, by the witness(es) who allegedly testified before said panel, and/or by
the attorney(s) for the government.
To illustrate just a few of the many reasons why fraud
upon the panel was probable, Defendant offers the following as proof:
(1)
Defendant
is charged with violating four separate federal statutes, to wit: (a) 18 U.S.C. 287, (b) 18 U.S.C. 1341, (c) 26 U.S.C. 7203, and
(d) 26 U.S.C. 7212. There are no substantive, legislative
regulations in the Parallel Table of Authorities and Rules implementing
the statutes (a), (b), and (c) above.
See attached Exhibit “A”.
Moreover, Defendant has conducted His own extensive analysis, and
search, of the Code of Federal Regulations (“CFR”) for any substantive,
legislative regulations implementing the above statutes. The following summarizes that analysis.
(2)
As
for 26 U.S.C. 7212,
Defendant confirmed that regulations have been published only for Title
27, Parts 170 (Miscellaneous Regulations Relating to Liquor), 270 (Manufacture
of Tobacco Products), 275 (Importation of Tobacco Products, Cigarette Papers
and Tubes), 290 (Exportation of Tobacco Products and Cigarette Papers and
Tubes, without Payment of Tax, or with Drawback of Tax), 295 (Removal of Tobacco
Products and Cigarette Papers and Tubes, without Payment of Tax, for Use of the
United States), and 296 (Miscellaneous Regulations Relating to Tobacco Products
and Cigarette Papers and Tubes). During
the calendar years in question, Defendant was not involved in any of
these activities. It is highly likely
that the panel was not informed of this fact; nor was the panel informed that Title
27 activities were necessary to trigger a filing requirement. This is fraud upon the panel.
(3)
Defendant
has studied the CFR for the Internal Revenue Code, and discovered that there
are no substantive, legislative regulations implementing IRC section 7203. However, under the CFR for Title 27 of the
United States Code, at Section 70.42, i.e. Returns Prepared or Executed
by Regional Directors (Compliance) or by other ATF Officers, at subsection (c),
i.e. Cross References, subsection (9), it is stated: “For criminal penalties for willful failure
to make returns, see sections 7201, 7202, and 7203 of the Internal
Revenue Code.” 27 CFR 70.42(c)(9). There are,
evidently, no implementing regulations for said IRC sections (see Exhibit
“A”).
(4)
At IRC 7806(a), the
point is made that “cross references to other provisions of law, where the word
‘see’ is used, are made only for convenience, and shall be given no legal
effect.” Note the use of the word “see”
at 27 CFR 70.42(c)(9) supra (which is also
headed “Cross references”). Therefore,
Defendant is entitled to conclude that IRC sections 7201, 7202, and 7203 have no legal effect whatsoever in the instant case.
(5)
There
are very clear public protection provisions in the Administrative Procedures
Act, in the Federal Register Act, and also in pertinent case law, which make it
impossible for any penalty to be imposed upon Defendant, when a positive
showing has been made that the required regulations have never been
promulgated, either in the Federal Register, or in the CFR (which is
legally considered a Supplement to the Federal Register). See 5 U.S.C. 552(a)(1), and 44 U.S.C. section 1505 and 1507, in chief. The transcript of testimony given to the
panel, under oath, is very likely to show that none of the above facts and laws
was ever presented to that panel.
Accordingly, the allegation that Defendant was involved in alcohol,
tobacco, or firearms, assumes facts not in evidence, and is hereby
formally rebutted by Defendant; or, in the alternative, perjury has
been committed in the presence of the panel by one or more witnesses, and/or
the attorneys for the government.
Misprision of perjury by omission is actionable, as is any conspiracy to
commit misprision, whether or not in the presence of a lawfully convened
federal grand jury. See 18 U.S.C. 4.
(6)
For
the edification of this Court, Defendant hereby requests discretionary judicial
notice of the pertinent discussion entitled “Types of Rules,” at 2 Fed. Proc. L.Ed., section 2:75, to wit: “The Administrative Procedure Act (APA)
recognizes the existence of legislative rules (sometimes referred to as
substantive rules), interpretive rules, procedural rules, and general
statements of policy. However, these
various types of rules are not defined in the APA, and we are forced to rely on
judicial definitions of these terms” citing Chrysler Corp. v. Brown. 441
U.S. 281, 60 L.Ed.2d 208, 99 S.Ct. 1705 (1979). “A legislative rule has the force and effect
of law if promulgated in accordance with a delegation of power by
Congress.” op
cit., page 87. Moreover, many
statutes in IRC Subtitle F fall within the category of Housekeeping Statutes, i.e.: “… rules relating to agency employees and
records promulgated under the Housekeeping Statute are rules of agency
organization, procedure, or practice, and are not intended to be
substantive.” op
cit., page 88.
(7)
Defendant
hereby offers to prove that He has been frequently mis-classified
as an “Illegal Tax Protester” [sic], via a “TC-148” designation in
Defendant’s Individual Master File (“IMF”).
Pursuant to the 6209 Manual from the IRS, Defendant also offers
to prove that such a designation results in prejudicial and discriminatory
treatment by the government and its alleged agents. This honorable Court is hereby respectfully
requested to take formal judicial notice of the IRS Restructuring and Reform
Act of 1998, at section 3707 (Illegal Tax Protester (“ITP”) Designation), by
which the IRS was mandated to remove existing ITP designations from the
IMF. IRS personnel must also disregard
any such designations as of the date of enactment of that law. Finally, as of the date of enactment, IRS personnal cannot describe people in written documents as
“illegal tax protesters”. It is a
fundamental Right, protected by the First Amendment, to protest any government
action. Defendant demands to know if the
panel which issued the instant indictment was deliberately misinformed that
Defendant properly belonged to such a suspect class. The premeditated and protracted misuse of
this suspect classification constitutes probable cause to charge the
responsible parties with one or more violations of 18 U.S.C. 242, and 241, for depriving,
and conspiring to deprive, Defendant of His fundamental Rights to freedom of
expression, as guaranteed by the First Amendment, and to due process of law, as
guaranteed by the Fifth Amendment. See
also pertinent provisions in the Universal
Declaration of Human Rights and the International
Covenant on Civil and Political Rights, both rendered supreme Law by the Supremacy Clause in the U.S. Constitution.
(8)
Defendant
could never have been compelled to testify against Himself, in violation of the
Fifth Amendment. A completed federal tax return, of any kind,
has been recognized by many courts as testimony admissible in civil and
criminal proceedings. As such, a
completed tax return cannot be compelled without also violating the Fifth Amendment guarantee
against self-incrimination. The panel
was not presented with this constitutional guarantee, immunizing Defendant from
being a witness against Himself.
(9)
The
only known statutes which create a specific liability for taxes imposed by
Subtitle A of the IRC are those which are imposed upon federal employees and
upon withholding agents. See list of
statutes itemized at IRC
7701(a)(16), e.g. IRC 1461. Defendant was not a federal
employee nor a withholding agent [sic] during the calendar years
in question. Section 1 of the IRC
does not create a specific liability for taxes imposed by Subtitle A. The regulations at 26 CFR 1.1-1(b) are overly
broad extensions of the underlying statutory authority, because they do
create a specific liability, when no such liability is created by the
underlying statute.
Provided that any can be confirmed by careful inspection
of the record of proceedings, all of the above constitute grounds to file
criminal complaints of tampering, and/or intent to tamper, with a federal grand
jury; conspiracy
to tamper, and/or being an accessory to tampering, with a panel of federal
citizens alleged to be a federal grand jury, all in violation of the pertinent
statutes in 18 U.S.C.
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 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 10, 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
RECORD OF
PROCEEDINGS:
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 Street, Suite 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
Western 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 10, 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
Exhibit
“A”:
Excerpts
from Parallel Table of Authorities and Rules