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Unpublished Disposition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than opinions or orders designated for publication are not
precedential and should not be cited except when relevant under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