Time: Thu May 29 22:22:09 1997 by primenet.com (8.8.5/8.8.5) with ESMTP id WAA11999; Thu, 29 May 1997 22:10:22 -0700 (MST) by usr02.primenet.com (8.8.5/8.8.5) with SMTP id WAA25136; Thu, 29 May 1997 22:10:14 -0700 (MST) 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) Content-Transfer-Encoding: 8bit >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 email: [address in tool bar] : Eudora Pro 3.0.2 on Intel 586 CPU web site: http://www.supremelaw.com : library & law school registration ship to: c/o 2509 N. Campbell, #1776 : this is free speech, at its best Tucson, Arizona state : state zone, not the federal zone Postal Zone 85719/tdc : USPS delays first class w/o this ========================================================================
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