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], ) REPLY TO
GOVERNMENT’S RESPONSE
)
TO DEFENDANT’S FIRST CROSS-
v. )
COMPLAINT FOR DECLARATORY AND
)
INJUNCTIVE RELIEF
DONALD E. WISHART [sic], )
)
Defendant [sic]. )
________________________________)
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 (“Defendant”), to reply to the government’s response to Defendant’s FIRST CROSS-COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (hereinafter “FIRST CROSS-COMPLAINT”).
Defendant is quite saddened to learn that it is difficult for the government to respond to Defendant’s FIRST CROSS-COMPLAINT. The eight specific conclusions requested by Defendant are clear, unambiguous, and straightforward. Defendant’s request, and meaning, are also clear, unambiguous, and straightforward, unlike numerous provisions in the Internal Revenue Code which is entirely void for vagueness.
If the government is responding “as best as it can,” then the following is, evidently, the very best Defendant, or anyone else, can expect from the government on the following points:
1. Defendant did ask whether the U.S. Department of Justice (“DOJ”) has any powers of attorney to represent the Internal Revenue Service (“IRS”) in federal courts. The government answer is yes, citing the regulations at 28 CFR 0.70 and 0.13; but, the government cites no statutes, or constitutional provisions whatsoever.
Neither regulation cited supra grants any power(s) of attorney to DOJ, or to the Office of the U.S. Attorney (“OUSA”), to represent IRS, or IRS personnel, in federal courts. The only mention of IRS therein is the explicit exclusion at 28 CFR 0.70(b), to wit:
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 the misconduct of Internal Revenue Service personnel ….
[emphasis added]
Neither IRS, nor any IRS personnel, can be represented by DOJ or OUSA under authority of this regulation, because said regulation expressly excludes from its scope criminal proceedings pertaining to the misconduct of IRS personnel. Simply put, the one and only one place where IRS is even mentioned, specifically excludes IRS.
Similarly, 28 CFR 0.13 entirely fails even to mention IRS and, thus, cannot be either a general, or a limited, power of attorney to represent IRS, or IRS personnel, in federal courts.
Inclusio unius est exclusio alterius. Black’s Law Dictionary.
Paragraph 1. of the government’s response fails even to mention any federal statutes, as such, which the government might allege as authority(s) to represent IRS, or IRS personnel, in federal courts.
Defendant agrees that no federal statute(s) grant any power(s) of attorney to DOJ, or to OUSA, to represent IRS, or IRS personnel, in federal courts. Silence activates estoppel.
Defendant has now proven that
U.S. Attorneys are not authorized by Law to conduct legal proceedings on behalf
of IRS or IRS personnel.
2. As for the government’s paragraph numbered 2., the government merely alleges that IRS is an “agency” as that term is used in the Freedom of Information Act (“FOIA”). In support of their allegation, the government cites 5 U.S.C. 511(1), implying without further proof that IRS is an “authority of the Government of the United States, whether or not it is within or subject to review by another agency ….” Such an implication is false and erroneous.
Defendant specifically denies the faulty premises that IRS is an authority of the Government of the United States, and that IRS is an authority of the Governments of the United States of America.
All court authority(s) predicated on these demonstrably incorrect premises were plainly in error. All of the cases cited in the government’s paragraph 2., assume the exact same, albeit faulty premises. Confer at “Plain error rule” in Black’s Law Dictionary.
The United States is not a Proper Party to the instant action. See caption page supra, on the “indictment”, and 28 CFR 0.70(b), (c)(2).
The United States of America are Proper Parties (plural) to the instant action. Neither DOJ nor OUSA have any powers of attorney to represent the Plaintiffs prosecuting the instant action. Op. cit.
In Donald Wishart v. C.I.R., 84 A.F.T.R.2d 99-6886 (9th Cir. 1999), Defendant likewise erred by assuming the exact same, albeit faulty premises. Defendant now relies on newly found evidence, i.e.:
See Chrysler Corp. v. Brown, 441 U.S. 281 (1979), footnote 23; and 31 U.S.C. in toto. IRS was never created by any organic Act of Congress. IRS is not a bureau or other department authorized by Law to exist within the U.S. Department of the Treasury.
In 1972, Internal Revenue Manual
1100 was published in both the Federal Register and Cumulative
Bulletin (see 37 Fed. Reg. 20,960;
1972-2 Cum. Bul. 836).
The very first page of the Bulletin's "Statement of Organization
and Functions" includes the following admission concerning the origins of
the IRS:
(3) By common parlance [sic] and understanding of the
time, an office of the importance of the Office of Commissioner of Internal
Revenue was a bureau. The Secretary of
the Treasury, in his report at the close of the calendar year 1862 stated that
"The Bureau of Internal Revenue has been organized under the Action of the
last session ...." Also it can
been seen that Congress intended to establish a Bureau of Internal
Revenue, or thought they had, from the act of March 3, 1863, in
which provision was made for the President to appoint with Senate confirmation
a Deputy Commissioner of Internal Revenue "who shall be charged with the
duties in the bureau of internal revenue as may be prescribed by the Secretary
of the Treasury, or as may be require by law, and who shall act as Commissioner
of Internal Revenue in the absence of that officer, and exercise the privilege
of franking all letters and documents pertaining to the office of internal
revenue." In other words,
"the office of Internal Revenue," was the "Bureau of Internal
Revenue," and the act of July 1, 1862, is the organic act of today's
Internal Revenue Service.
[emphasis added]
This statement clearly admits the absence of any specific
statute or other legislation creating the Bureau of Internal Revenue and its
present day alter ego -- the IRS -- as a duly constituted bureau,
department, or agency of the United States (federal government).
The Act of 1862 cited supra only created the Office of
the Commissioner, not the Bureau of Internal Revenue, nor the IRS. Agencies and offices are not one and the
same.
3. Defendant specifically denies that IRS employees are mandated by Law to execute the Oath of Office required by Article VI, Clause 3, in the Constitution for the United States of America, as lawfully amended (hereinafter “U.S. Constitution”).
The U.S. Constitution supra and the United States Constitution [sic] are one and the same, containing exactly the same provisions, without any exceptions whatsoever. See Supremacy Clause.
IRS employees are not Senators or Representatives.
IRS employees are not Members of the several State Legislatures.
IRS employees are not executive or judicial Officers of the United States (federal government).
IRS employees are not executive or judicial Officers of the several States (i.e. United States of America [sic]).
5 U.S.C. 3331 does not pertain to IRS employees.
28 U.S.C. 453 does not pertain to IRS employees.
28 U.S.C. 547 does not pertain to IRS employees.
28 U.S.C. 951 does not pertain to IRS employees.
4 U.S.C. 101 does not pertain to IRS employees.
The government errs by alleging that Article VI, Clause 3, requires IRS employees to execute the Oath of Office.
Article VI, Clause 3, does not require IRS employees to execute the Oath of Office.
Accordingly, all Oaths of Office which might have been executed by IRS personnel, e.g. Form 61 Appointment Affidavits, are counterfeit documents, for bearing the signature(s) of people who occupy none of the de jure offices itemized above. See also Paperwork Reduction Act.
4. Defendant’s request for interlocutory ORDER is appropriate, for all of the reasons stated in Defendant’s FIRST CROSS-COMPLAINT, and for all of the reasons stated herein.
Defendant has now cited numerous authorities supporting the requested conclusions, specifically all of the federal statutes which are correctly enumerated in His FIRST CROSS-COMPLAINT.
Defendant’s conclusions do not misstate the Law.
In particular, the explicit exclusion at 5 U.S.C. 551(1)(C) makes it very clear that the governments of the federal Territories are not “agencies” as that term is defined in the FOIA.
IRS is an alias for Trust #62, domiciled in Puerto Rico under color of the Federal Alcohol Administration, declared unconstitutional by the U.S. Supreme Court in the case of U.S. v. Constantine, 296 U.S. 287, 294, 56 S.Ct. 233, 226, 80 L.Ed. 233 (Dec., 1935); see also 31 U.S.C. 1321(a)(62); 31 CFR 51.2, 52.2 (pre-E.O.).
To repeat, Defendant specifically denies that employees of the IRS are “collectors, or other officers of the revenue or customs”, as those terms are used at 28 U.S.C. 547(3).
The government has now entirely failed to rebut the latter statement, by not offering any factual or legal evidence to the contrary, and by failing completely even to mention 28 U.S.C. 547.
Therefore, IRS employees are not collectors or other officers of the revenue or customs, as those terms are used at 28 U.S.C. 547(3).
Defendant is correct to request immediate relief, by way of proving criminal tampering with, and conduct misleading the panel of federal citizens alleged to be a grand jury in the instant case.
The requested interlocutory ORDER is also a prerequisite before Defendant can file and serve a correctly amended VERIFIED CROSS-COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES in the District Court of the United States. See 5 U.S.C. 552(a)(4)(B).
If IRS personnel are not required to execute an Oath of Office, all Form 61 Appointment Affidavits executed by IRS personnel are necessarily counterfeit documents. See 18 U.S.C. 1001.
If IRS personnel are required to execute an Oath of Office, the absence of a Form 61 Appointment Affidavit for any given employee is grounds for charging same with impersonating a federal officer.
Because of this Court’s ORDER SETTING BRIEFING SCHEDULE FOR ALL PENDING MOTIONS, filed September 20, 2000, Defendant simply ran out of time available to rebut any of the government’s other responses. All of the latter were received by Defendant at 12:00 noon on 10/3/2000!
NOTICE OF
RELATED CASES
Defendant respectfully requests this honorable Court to take formal notice of the following related cases, which will be directly affected by the remedy requested herein, to wit:
(1) Wishart v. United States et al., DCUS, N.D. Calif. (San Jose, California), currently lodged in Clerk’s docket number CR-00-20227-JF supra; and,
(2) Donald Wishart, Whistleblower v. Paul Camancho [sic] and Brian Watson, DCUS, N.D. Calif. (San Jose), Clerk’s docket number C-97-20389-JW (now filed as Defense Exhibit “H”).
REMEDY REQUESTED
All premises have been duly considered, Defendant respectfully requests an immediate interlocutory ORDER declaring, as a matter of Law, that:
(1) Internal Revenue Service was never created by any specific Act of Congress, either in Title 31, U.S.C., or elsewhere;
(2) United States Department of Justice enjoys no general powers of attorney to represent IRS, or IRS employees, in any federal courts;
(3) Internal Revenue Service is not an “agency” as that term is used in the Freedom of Information Act at 5 U.S.C. §§ 551(1) and 552(f);
(4) Internal Revenue Service employees are not required to execute the Oath of Office mandated by Article VI, Clause 3, in the U.S. Constitution;
(5) Internal Revenue Service employees are not required by any existing federal statutes to execute the Oath of Office mandated by Article VI, Clause 3, in the U.S. Constitution;
(6) the President has appointed, by and with the advice and consent of the Senate, an Assistant General Counsel who is presently the Chief Counsel for Internal Revenue Service;
(7) the Internal Revenue Service Chief Counsel has no authority to re-delegate general power(s) of attorney to the United States Department of Justice, or to the Office of the United States Attorney, for purposes of appearing in federal court on behalf of the Internal Revenue Service, or Internal Revenue Service employees;
(8) Internal Revenue Service employees are not “collectors, or other officers of the revenue or customs” [sic], as those terms are used at 28 U.S.C. 547(3);
and all other relief which this honorable Court deems just and proper, under the circumstances.
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, and that the attached documents are true and correct copies of their corresponding originals, 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 3, 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])
See Pannill v. Roanoke, 252 F. 910, 914; 42 USCS 1983;
and Wadleigh v. Newhall, 136 F. 941 (CC Cal, 1905)
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):
TO DEFENDANT’S
FIRST CROSS-
COMPLAINT FOR
DECLARATORY AND
INJUNCTIVE RELIEF
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
Executed on October 3, 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