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Date: Fri, 04 Jul 1997 19:12:04 -0700
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From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: U.S.A. v. McDonald

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                     Unpublished Disposition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than opinions  or  orders  designated  for  publication  are  not
precedential and  should not  be cited except when relevant under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

       UNITED STATES of America, Plaintiff-Appellee,
          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.

Circuit Judges.


     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

     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.


     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

     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.


     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.


     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.


     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.

     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

     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.


     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:


     [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.

                             #  #  #

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

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