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Date: Thu, 29 May 1997 22:15:19 -0700
To: (Recipient list suppressed)
From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: U.S. v. Gaumer (fwd) 
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>Date: Fri, 30 May 1997 00:31:26 -0400
>From: "Dr. Braces" <drbraces@smart1.net>
>Organization: SouthFlorida Orthodontics
>To: pmitch@primenet.com
>Subject: us v gaumer
>
>We should contact Richard Gaumer
>
>972  FEDERAL REPORTER, 2d  SERIES  723  (6TH Cir,.  1992)
>UNITED STATES of America,
>Plaintiff-appellee,
>v.
>Richard G. GAUMER, Defendant-
>Appellant.
>No. 91-4179
>
>United States Court of Appeals,   Sixth Circuit.
>
>Submitted May 11, 1992  Decided Aug. 19, 1992
>
>	Defendant was convicted in the United States District Court for 
>the Northern District of Ohio, Sam H. Bell, J.,  of willful failure to 
>file income tax returns and he appealed,  The Court of Appeals held that 
>defendant was entitled to admit into evidence legal materials which he 
>claimed supported his belief that he was not required to file income tax 
>returns, which evidence was relevant to issue of willfulness. 
>	Vacated and remanded.
>	Siler, Circuit Judge, filed dissenting opinion.
>
>Internal Revenue  5294
>	Defendant charged with willfully failing to file income tax 
>returns was entitled to admit into evidence legal materials, including 
>court opinions and portions of the Congressional Record, which he 
>claimed supported his belief that he was not required to file income 
>tax, which evidence was relevant to issue of willfulness.  26  U.S.C.A. 
> § 7203.
>_______________
>	Gregory C. Sasse,  Asst.  U.S. Atty.  (briefed), Thomas E. Getz, 
>Office of the U.S. Atty., Cleveland, Ohio, for plaintiff appellee.
>
>Richard G. Gaumer, pro se  (Ed’s notes, way to go Richie, I think we 
>should all thank this fine American)
>
>Before NELSON AND SILER, Circuit Judges; and SPIEGEL, District Judge. 
>
>PER CURIAM
>	This is an appeal from a conviction for willful failure to file 
>income tax returns.  Concluding that the district court erroneously 
>excluded evidence offered by the defendant for the purpose of negating 
>willfulness, we shall vacate the conviction and  remand for a new trial.
>I
>	The defendant, Richard G. Gaumer, was indicted for violating  26 
> U.S.C.  § 7203 by willfully failing to file federal income tax returns 
>for 1983, 1984, and 1985.  Mr. Gaumer, appearing pro se, took the stand 
>at trial and attempted to persuade the jury that he sincerely believed 
>that he was not required to pay income taxes and that his failure to 
>file tax returns was therefore not "willful."  
>	During the presentation of his case, Mr. Gaumer identified as 
>Defendant’s Exhibit "A" a book entitled How Anyone Can Stop Paying 
>Income Taxes.  He testified that he read the book, that he went to a law 
>library and tried to verify some of the information it contained, and 
>that he attended a seminar given by the book’s author.  As a result of 
>his reading and seminar attendance,  Mr. Gaumer said, and through study 
>of various judicial decision, he came to believe that people in his 
>situation could not be required to file tax returns.
>	Mr. Gaumer then identified as Defendant’s Exhibits "B," "C," and 
>"D," photocopies of opinions in three court cases.  When he attempted to 
>introduce these materials in evidence, the judge made this suggestion:  
>"Unless there’s some special reason for that, why don’t you just wait 
>until the end of your case. Would you do that?  Mr.  Gaumer agreed.
>	At the conclusion of all the testimony the court heard argument 
>on the admissibility of the defense exhibits.  (In addition to those 
>described above, the exhibits included a Congressional Record excerpt 
>marked Defendant’s Exhibit "E.")  the government objected to the 
>introduction of the exhibits on the ground that "they’re not Mr. 
>Gaumer’s beliefs."  Mr. Gaumer responded that "since ....... one of the 
>issues in the crime is willfulness, it’s important that the jury be able 
>to know that I relied upon this information."  The court sustained the 
>government’s objection, noting that there might be some prejudice to Mr. 
>Gaumer if the jury were allowed to peruse these materials.  (Ed’s notes; 
>Tried to keep out the truth)
>	The jury ultimately returned a verdict of guilty on all counts. 
>Mr. Gaumer has perfected a timely appeal.
>
>II
>	In Cheek v.  United States,  498  U.S.  192,  111  S.Ct.  604,  
>112  L.Ed.2d 617  (1991), the Supreme Court held that a defendant may 
>not be convicted of willfully filing to file tax returns  if he held a 
>subjective belief that the law did not impose such a duty upon him.  The 
>Court noted that "it is not contrary to common sense, let alone 
>impossible, for a defendant to be ignorant of his duty based on an 
>irrational belief that he has no duty, and forbidding the jury to 
>consider evidence that might negate willfulness would raise a serious 
>question under the Sixth Amendment’s jury trial provision."
> Id. at ___ , 111  S.Ct.  at 611.
>	Under Cheek, as the Court of Appeals for the Ninth Circuit 
>recently noted, the district court.  
>	"Ordinarily cannot exclude evidence relevant to the jury’s 
>determination of what a defendant thought the law was in §7203  cases 
>because willfulness is an element if the defendant lays a proper 
>foundation which demonstrates such reliance."  United States v. Powell, 
>955 F.2d 1206, 1214 (9th Cir. 1992) (dictum) (citations omitted).
>	In United States  v.  Willie,  941  F.2d  1384  (10th Cir. 
>1991), cert. denied, --- U.S. ---, 112  S.Ct,  1200,  117  L.Ed.2d  440 
> (1992), however, the Court of Appeals for the Tenth Circuit held that a 
>defendant generally has no right to present otherwise excludable legal 
>documents offered to support a claim that he thought he was under no 
>obligation to file a tax return.  Judge Ebel dissented, suggesting that 
>if a defendant knew of data "in the constitution, statutes, legislative 
>history, or  the like" allegedly supporting a professed view that he was 
>not required to file a tax return, the material would be admissible to 
>negate willfullness as long as there was a "nexus" between the material 
>and the defendant’s stated views.  Id. At 1402 (Ebel, J., dissenting). 
>We find Judge Ebel’s dissent persuasive.  (Ed’s notes., hooray for the 
>judge)
>	In the case at bar, Mr. Gaumer testified that his study of 
>Defendant’s Exhibit A-- a book that purports to tell the reader "[w]hy 
>you are not legally required to file tax returns"--- led him to do 
>further to verify the author’s claims that people like himself had no 
>such obligation.  This research led him to Exhibits B and E, consisting 
>of photocopies of Brushaber v. Union Pacific R.R.  Co.,  240  U.S.  1,  
>36 S.Ct.  236,  60 L.Ed.  493  (1916),  Flint  v.  Stone Tracy,  20  
>U.S.  107,  31  S.Ct.  342,  55  L.Ed. 389  (1911), Stanton  v.  Baltic 
>Mining Co.,  240  U.S.  103,  36  S.Ct.  278,  60 L.Ed.  546  (1916), 
>and pages 2578-81 of the Congressional Record of March 27, 1943.  Gaumer 
>testified that he learned from Brushaber, and the Congressional Record 
>excerpt, that income taxes are excise taxes. He further testified that 
>his reading of Flint, plus further research, persuaded him that he was 
>not engaged in any excise-taxable activity.
>	As a legal matter, the exhibits do not validate Mr. Gaumer’s 
>views. (Ed’s notes, Noting that this bunch of nincompoops does not 
>validate that statement with any law???)  As a factual matter, however, 
>we think a jury might have discerned a nexus between these materials and 
>Mr. Gaumer’s stated belief that he was not required to file income tax 
>return’s.  Brushaber and the Congressional record excerpt "do indeed 
>state" that for constitutional purposes, the income tax is an excise 
>tax.  This statement is reiterated in Stanton, and Flint discusses the 
>scope of the "excise tax" in a way that could conceivably be thought to 
>provide some comfort to a person in defendant Gaumer’s station.  
>(boldface inserted)  Mr. Gaumer should therefore have been allowed to 
>present the contents of the exhibits to the jury to the extent the 
>material was relevant.
>	This not mean that the trial court was required to permit the 
>physical introduction of exhibits comprising hundreds of pages.  At a 
>minimum, however, defendant Gaumer should have been allowed to read 
>relevant excerpts to the jury.  And if the physical exhibits were to be 
>kept out, the defendant should have been so advised before it was too 
>late for him to introduce excerpts orally.
>	We therefore VACATE the conviction and REMAND  the case for a 
>new trial. SILER, Circuit Judge.  (Ed’s notes nincompoop dissenting.)
>
>	Although the majority opinion does not discuss all the points 
>raised on appeal, I would affirm the judgment of the district court in 
>all respects.  I dissent because I disagree with the majority’s 
>conclusion that is was error to have excluded five items of documentary 
>evidence, (Ed’s notes, God forbid, to have documentary evidence for the 
>defense) consisting of a book, three Supreme Court opinions, and 
>excerpts from the 1943 congressional Record.
>	Obviously, I agree that the defendant in this case could 
>lawfully raise the defense that he could not be convicted for willfully 
>failing to file his tax returns if he held a subjective belief (Ed’s 
>Notes, because there is no law that compels a person to pay a tax on his 
>labor)  that the law did not impose such a duty upon him.  See Cheek v. 
>United states, 498  U.S.  192,  111  S.Ct.  604,  112  L.Ed.2d  617  
>(1991).  "[I]n deciding whether to credit [defendant’s] good-faith 
>belief claim, the jury would be free to consider any admissible evidence 
>from any showing his awareness of the relevant provisions of the Code or 
>Regulations, of court decision rejecting his interpretation of the tax 
>law, of authoritative rulings of the Internal Revenue Service, or of any 
>contents of the personal income tax return forms and accompanying 
>instructions that made it plain that wages should be returned as 
>income." Id., at _____, 111 S.Ct. at 611.  However, Cheek, does not hold 
>that such evidence in documentary form is admissible in support of such 
>a defense, although the trial court allowed the defendant in that case 
>to introduce certain materials containing references to quotations from 
>opinions and statutes.
>	I agree that the defendant in this case at bar could testify as 
>to his subjective beliefs that he was not required to file an income tax 
>return, but the defendant was not precluded from testifying about that, 
>nor that he was basing it upon cases or books he had read.  However, I 
>believe that this is a mine field for confusing the jury. (Ed’s notes, 
>Yeah, maybe they will hear the truth and other statements),  if the 
>defendant in such a case could introduce the evidence referred to in 
>cheek.  ( Ed’s notes, I don’t think the evidence was the same).  
>Instead, the district court exercised its discretion in excluding the 
>evidence.  The district court did not cite any particular rule of 
>evidence, (because there wasn’t any) but it is obvious that its ruling 
>was based upon Fed.  R.  Evid.  403, because the exhibits were confusing 
>and misleading to the jury.  (Ed’s notes, Really now Judge!).  
>	The majority opinion discussed the decision in United States v. 
>Willie, 941 F.2d  1384  (10th Cir. 1991),  cert. denied, ----  U.S.  --- 
> ,  112  S.Ct. 1200,  117 L.Ed. 2d  440 (1992), but it finds the dissent 
>by Judge Ebel as persuasive. I would follow the majority opinion in that 
>case and in United States  v.  Hairston, 819 F.2d  971  (10th Cir.  
>1987), for the proposition that the discretionary with the trial court, 
>and that discretion was not abused.
>	I realize that there is dictum to the contrary in United States 
> v. Powell, 955 F.2d  1206, 1214  (9th Cir.  1992), but I foresee that 
>policy as a mistake in the law, for it would encourage tax protesters  
>(Ed’s notes or people that know the truth)  or others who wish to raise 
>a defense of willfulness, to introduce outdated documents or opinions in 
>support of their defenses, in order to confuse the issues at trial.  
>(Ed’s notes It seems to this nincompoop, that the Constitution and the 
>Supreme Court is outdated)  When the truth is relevant it will of course 
>confuse and enlighten the jury.
>
>ED’S REPORTING SERVICE 1 E.rs 1 (1995)
>
>
>
>-- 
>
>
>With Love, Liberty and Justice for All,    
>Alex                                      
>http://www.drbraces.com         
>e-mail: drbraces@drbraces.com
>
>"When the people fear their government you have tyranny.  
>When the government fears the People, you have liberty."
>                                        Thomas Jefferson
>
>Liberty is NEVER an option... only a condition to be lost!
>
>

========================================================================
Paul Andrew, Mitchell, B.A., M.S.    : Counselor at Law, federal witness
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