Time: Wed Jun 11 05:54:45 1997
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	Wed, 11 Jun 1997 05:54:34 -0700 (MST)
Date: Wed, 11 Jun 1997 05:53:40 -0700
To: (Recipient list suppressed)
From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: IRS Summons/5th Amendment (fwd)

>Date: Tue, 10 Jun 1997 23:35:31 -0700
>From: Harold Thomas <harold@halcyon.com>
>To: Jus Dare <jus-dare@freedom.by.net>
>Subject: IRS Summons/5th Amendment
>>>Following are excerpts of a recent case from the District Court, 
>>>Southern District of Ohio Western District in Cincinnati, Ohio.
>>>This Citizen successfully beat a challenge by the U.S. attorney for
>>>a copy of his books and records, using the 5th Amendment!
>>>    Plaintiff 
>>>    Defendant         
>>>Cincinnati, Ohio
>>>Thursday,  May 30, 1996 10:09 a.m.
>>>Civil No. C-1-95-461
>>>MR. COOMBE: (James M. Coombe, Esq., Assistant United States
>>>Attorney) Essentially, your Honor, what we're asking for is 
>>>for the Court to enforce its order because Mr. Mercer was 
>>>previously ordered by this Court on February 21st, 1996 to 
>>>appear on March 8th before the IRS and give testimony 
>>>and bring any books and records in his possession that 
>>>would allow the Internal Revenue Service to prepare a 
>>>1040, for the tax year 1992.
>>>THE COURT: Now that isn't exactly what the order said, is it? ...
>>>It's my understanding that from the transcript that's been 
>>>supplied me. that when asked, Mr. Mercer said he had no records.
>>>MR. COOMBE: Your Honor, I think the problem we're dealing with 
>>>here is not whether or not he had records, but that he was 
>>>also asked questions; so he could testify; so they could get 
>>>relevant information...
>>>THE COURT: Now stop right there.  Now, he did appear, and he gave 
>>>MR. COOMBE: I would dispute that, your honor.
>>>THE COURT: Well, he did give testimony-you gave me the transcript.
>>>MR. COOMBE: He didn't provide any testimony.
>>>THE COURT: I hold that he did give testimony.
>>>MR. COOMBE: Okay
>>>THE COURT: Now proceed.
>>>MR. COOMBE: I really can't proceed, then, Your Honor.
>>>THE COURT: Now are you here because he didn't give the testimony 
>>>you wanted?
>>>MR. COOMBE: Well, Your Honor, my understanding is that the whole 
>>>purpose of this procedure is for the IRS to be able to enforce 
>>>the summons where it could get the testimony it needed to prepare 
>>>a tax return.
>>>THE COURT: The whole purpose of this proceeding is to determine 
>>>whether Mr.Mercer deliberately and intentionally violated the 
>>>order of this Court -- and I say that he did appear and he did 
>>>MR. COOMBE: I don't think he answered the questions ... For 
>>>example, they asked him about his personal expenses and he said.  
>>>THE COURT: That's right, 'ditto.' means he is referring back 
>>>to his claiming of the Fifth Amendment.  He said that he would
>>>perjure himself if he answered the question. and then he said, 
>>>'Ditto, Ditto, Ditto, Ditto, Ditto.'
>>>MR. COOMBE: That's correct.
>>>THE COURT: To me, he claimed, the Fifth Amendment.
>>>MR. COOMBE: Your honor, under the Powell decision, all the 
>>>United States has to do to have a Summons enforced is to 
>>>provide four' pieces of information, which we have done 
>>>countless times before...
>>>THE COURT: In other words, you say he has no right to claim 
>>>the Fifth Amendment?
>>>MR. COOMBE: Well, Your Honor, I don't think that's been 
>>>accepted by anybody concerning a civil summons enforcement.  
>>>I am not aware of a case that allows him to do that. 
>>>[Note: Where did Mr. Coombie get his degree, at the "Government 
>>> Lies Law School'?  How about a Supreme court case?  'The fifth 
>>> amendment's protection applies in any type of proceeding whether 
>>> civet, criminal, administrative, investigatory, or adjudicatory. 
>>> ' Maness v. Mceym, 419 U.S. 449 (1975).]
>>>THE COURT: You mean to tell me that you believe a witness 
>>>cannot claim the Fifth Amendment in a Civil Case?
>>>MR. COOMBE: ... Let's ask a rhetorical question. If every single 
>>>person decides to take the Fifth Amendment on a Tax Return, the
>>>tax is never going to be collected.
>>>THE COURT: That's exactly what they can do as I understand it! 
>>>[I like this judge! He's upholding his oath to defend the
>>> Constitution and the rights o the people from government 
>>> abuse! - Lynxes]
>>>THE COURT: ... [ To William Mercer] In the brief you filed with 
>>>me, you did claim your Fifth Amendment Right, is that correct?
>>>MR. MERCER: Yes.
>>>THE COURT: [To Mr. Coombe] Any witness or evidence you wish to 
>>>present, Mr. Coombe?
>>>MR. COOMBE: In light of your holding, your Honor, I don't think 
>>>there's anything I could put on that would change that.
>>>THE COURT: Let the record show that Mr. Mercer stated that he 
>>>wanted to cooperate.  Is that correct, Mr. Mercer?
>>>MR. MERCER: Yes, sir.
>>>THE COURT: That he did appear as ordered by the Court on March 
>>>the 8th, 1996 at 10 a.m. That he did give testimony; that he 
>>>stated at the time of the hearing before the Internal Revenue 
>>>officer and that he reiterated in this court, that he has no 
>>>records ... Going further he has invoked the Fifth Amendment 
>>>as to certain questions that were asked at the Internal      
>>>Revenue Hearing.  It's the opinion of this Court that, the fact 
>>>that we have a tax code does not take away our rights as citizens 
>>>to claim the fifth when we feel we will be incriminated by the 
>>>statements we give. In view of the situation.  I dismiss the 
>>>show cause or contempt order against Mr. Mercer and find that 
>>>he has answered the questions under oath and according to his 
>>>testimony, he has no records.  Mr. Coombe, I've tried to make 
>>>the record as clear and concise as I can on this particular 
>>>issue ... This case is dismissed.

Paul Andrew Mitchell                 : Counselor at Law, federal witness
B.A., Political Science, UCLA;  M.S., Public Administration, U.C. Irvine

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