Unpublished Disposition
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other
than opinions or orders designated for publication are not precedential
and should not be cited except when relevant under the doctrines of law of
the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Richard J. McDONALD, Defendant-Appellant.
No. 88-5239.
United States Court of Appeals, Ninth Circuit.
Submitted Oct. 4, 1990. [FN*]
Decided Nov. 26, 1990.
Appeal from the United States District Court for the Central
District of California; William Matthew Byrne, Jr., District Judge,
Presiding.
C.D. Cal.
Before PREGERSON, REINHARDT and CYNTHIA HOLCOMB HALL,
Circuit Judges.
MEMORANDUM [FN**]
Richard J. McDonald appeals from the judgment of conviction
entered by the district court on three counts of willfully failing to file
federal tax returns in violation of 26 U.S.C. s 7203. McDonald seeks
reversal on the grounds that (1) the district court lacked jurisdiction;
(2) the indictment failed to adequately allege a criminal offense; (3) he
is not a "person" subject to federal tax laws; and (4) Congress did not
have the power to enact federal tax statutes because the Fourteenth
Amendment was never properly ratified. [FN1] We affirm.
I.
Appellant challenges the district court's jurisdiction by
contending that because he is a state citizen, the United States
government lacks the constitutional authority both to subject him to
federal tax laws and to prosecute him for failing to comply with these
laws. Citing to Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856),
appellant argues that as a white, natural born, state citizen, he is not
subject to the taxing power of Congress. This argument is completely
without merit.
As this court has made clear in the past, claims that a particular
person is "not a [federal] taxpayer because [he or] she is an absolute,
free-born and natural individual" constitutionally immune to federal laws
is frivolous and, in civil cases, can serve as the basis for sanctions.
United States v. Studley, 783 F.2d 934, 937 & n. 3 (9th Cir.1986).
Appellant cannot assert that his state citizenship is predominant, and his
United States citizenship subordinate, in order to escape his obligations
under federal tax statutes. Kantor v. Wellesley Galleries, 704 F.2d 1088,
1090 (9th Cir.1983) (the Fourteenth Amendment "broadened the national
scope of the Government ... by causing citizenship of the United States to
be paramount and dominant instead of being subordinate and derivative
...," quoting Colgate v. Harvey, 296 U.S. 404, 427-428 (1935), overruled
on other grounds, Madden v. Kentucky, 309 U.S. 83 (1940)).
Further, the district court's assertion of subject matter
jurisdiction was proper under the applicable statute. Federal district
courts have exclusive, original jurisdiction over "all offenses against
the laws of the United States." 18 U.S.C. s 3231. These offenses include
crimes defined in the Internal Revenue Code. United States v. Przybyla,
737 F.2d 828, 829 (9th Cir.1984), cert. denied, 471 U.S. 1099 (1985).
Indeed, as we have repeatedly held, the entire Internal Revenue Code was
validly enacted by Congress and is fully enforceable. Studley, 783 F.2d
at 940; Ryan v. Bilby, 764 F.2d 1325, 1328 (9th Cir.1985).
Thus, we reject appellant's claims and find that the district
court's assertion of jurisdiction was proper.
II.
Appellant also challenges the sufficiency of the indictment.
Appellant argues that (A) the indictment does not adequately inform him of
the charges against him; (B) the word "resident" as it is used in the
indictment is impermissibly vague; and (C) an indictment charging a
defendant with violating only 26 U.S.C. s 7203 is invalid. We do not find
any of the appellant's arguments persuasive.
A.
Fed.R.Crim.P. 7 states that an indictment must consist of a
"plain, concise and definite written statement of the essential facts
constituting the offense charged." The United States Supreme Court has
held that the indictment is constitutionally sufficient if it contains the
elements of the offense charged, fairly informs the defendant of the
charge against which he must defend, and enables him to plead an acquittal
or conviction to bar subsequent prosecutions for the same offense.
Hamling v. United States, 418 U.S. 87, 117 (1974). The offense of failure
to file an income tax return under section 7203 consists of three
elements. The government must prove that the taxpayer was required to
file a return, the taxpayer failed to file a return, and the failure was
willful. United States v. Poschwatta, 829 F.2d 1477, 1481 (9th Cir.1987),
cert. denied, 484 U.S. 1064 (1988).
In this case, the indictment set out the elements of section 7203
with sufficient clarity to apprise the appellant of the charges against
him and enable him to enter an appropriate plea. [FN2] Thus, we find that
the indictment fulfilled the constitutional requirements as defined by the
United States Supreme Court.
B.
The appellant also challenges the use of the word "resident" in
the indictment, which he contends violates the Hamling test because it is
unconstitutionally vague. "In construing the language of an indictment,
courts must be guided by common sense and practicality." United States
v. Christopher, 700 F.2d 1253, 1257 (9th Cir.), cert. denied, 461 U.S. 960
(1983). Our reading of the indictment does not reveal any vagueness
associated with the use of the word "resident." In the context of the
sentence in which it is used, there is no possibility that the word
"resident" could mean a young doctor or any of the other definitions that
the appellant suggests. Further, nothing in the wording of the indictment
indicates that the word "resident" means anything so out of the ordinary
that the appellant would have to speculate as to its meaning, and thus be
less than fully informed of the charges against him. Therefore, we find
that the word "resident" as it is used in the indictment is not
impermissibly vague.
C.
Appellant also argues that the indictment is insufficient because
it only cites to section 7203, and does not refer to any other criminal
statutes. We reject this argument.
As discussed above, the indictment met the standard set out in
Hamling. It specifically alleged that the appellant's earnings were
sufficient to require him to file a federal tax return, and that he failed
to do so. Since the indictment set forth the elements of the offense and
adequately informed the appellant of the charges against him, it was not
necessary for the Government to refer to any other statute in the
indictment.
III.
Appellant next argues that he is not a "person" as that word is
used in section 7203 and 26 U.S.C. s 7343, so that these statutes are not
applicable to him. [FN3] The appellant's contention has been repeatedly
rejected by this court. Studley, 783 F.2d at 937; United States
v. Romero, 640 F.2d 1014, 1016 (9th Cir.1981).
The term "person" as it is used in section 7203 and defined in
section 7343 is not limited to corporations, partnerships and their
employees, but also includes individuals. United States v. Condo, 741
F.2d 238, 239 (9th Cir.1984), cert. denied, 469 U.S. 1164 (1985). These
statutes clearly apply to the appellant. Further, as we have previously
held, the use of the word "person" in these statutes is not impermissibly
vague. United States v. Pederson, 784 F.2d 1462, 1463 (9th Cir.1986).
Thus, appellant's contention that he is not a person required to file
income tax returns within the meaning of sections 7203 and 7343 is simply
incorrect. Neither the definition in section 7243 nor the language of
section 7203 excuse the appellant from his obligations under the federal
tax laws.
IV.
Appellant's final argument consists of a claim that the Fourteenth
Amendment was never properly ratified, that fraud was committed during the
ratification process, so that the Amendment is void. We reject this
argument.
The issue of whether a constitutional amendment has been properly
ratified is a political question. Coleman v. Miller, 307 U.S. 433, 450
(1939). Political questions are those federal constitutional issues which
the courts do not address, but rather leave to the legislative and
executive branches of the federal government to resolve. Baker v. Carr,
369 U.S. 186, 217 (1962).
In a case that ultimately dealt with the ratification of the Child
Labor Amendment to the United States Constitution, the United States
Supreme Court, by way of example, discussed the ratification of the
Fourteenth Amendment. The Court stated that whether the Fourteenth
Amendment was properly ratified was a political question and hence was not
subject to judicial determination. Coleman, 307 U.S. at 450.
Because the ratification of a constitutional amendment is a
political question, the Secretary of State's certification that the
required number of states have ratified an amendment is binding on the
courts. See Leser v. Garnett, 258 U.S. 130, 137 (1922) (Secretary of
State's certification that the Nineteenth Amendment had been ratified by
the requisite number of state legislatures was conclusive upon the
courts); United States v. Stahl, 792 F.2d 1438, 1439 (9th Cir.1986)
(Secretary of State's certification that the Sixteenth Amendment was
properly ratified was conclusive upon the courts), cert. denied, 479
U.S. 1036 (1987).
In the case of the Fourteenth Amendment, Secretary of State
William J. Seward certified that the required number of states ratified
the Amendment on July 28, 1868. 15 Stat. 708 (1867-69). In accordance
with the authority cited above, we are bound by Secretary Seward's
finding. The fact that the appellant is alleging fraud in the
ratification process does not alter our conclusion. Stahl, 702 F.2d at
1440.
V.
Finally, the Government addresses the issue of venue in its brief.
As this court has previously held, the proper venue for a prosecution
under section 7023 is either the district in which the defendant's
residence is located, or the district which encompasses the collection
point where the return should have been filed. United States v. Clinton,
574 F.2d 464, 465 (9th Cir.), cert. denied, 439 U.S. 830 (1978). In this
case, the appellant resided in North Hollywood. Thus, in accordance with
our holding in Clinton, the Central District of California was the proper
venue for this action.
AFFIRMED.
FN* The panel finds this case appropriate for submission without
oral argument pursuant to Ninth Circuit Rule 34-4 and Fed.R.App.P. 34(a).
FN** This disposition is not appropriate for publication and may
not be cited to or by the courts of this circuit except as provided by 9th
Cir.R. 36-3.
FN1. We note that the appellant challenges the validity of the
Fourteenth Amendment, not the Sixteenth Amendment, as is common in tax
protester cases.
FN2. Count One of the indictment reads as follows:
COUNT ONE
[26 U.S.C. s 7203] During the calendar year 1982, defendant
RICHARD J. MCDONALD, who was a resident of North Hollywood, California,
had and received gross income of approximately $35,096.00. By reason of
having and receiving that amount of gross income, the defendant was
required by law, following the close of the calendar year 1982, and on or
before April 15, 1983, to make an income tax return to the District
Director of the Internal Revenue Service for the Internal Revenue District
at Los Angeles, in the Central District of California, or to the Director,
Internal Revenue Service Center, at Fresno, California, or such other
proper officer of the United States, stating specifically the items of his
gross income and any deductions and credits to which he was entitled. The
defendant, well knowing and believing these facts, willfully failed to
make an income tax return to the District Director of the Internal
Revenue, to the Director of the Internal Revenue Service Center, or to any
other proper officer of the United States. The other two counts differ
only as to the date of the offense and amount of income at issue.
FN3. 26 U.S.C. s 7343 defines the word "person" as it is used in
Chapter 75 of the Internal Revenue Code as a "person [which] ... includes
an officer or employee of a corporation, or a member or employee of a
partnership, who as such officer, employee, or member is under a duty to
perform the act in respect of which the violation occurs." Section 7203,
which contains the word "person," falls within Chapter 75.
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U.S.A. v. McDonald