Unpublished Disposition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than opinions or orders designated for publication are not precedential 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, 
                   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, 

        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.


        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.


        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 (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.


        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 


        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 

        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 


        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.

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U.S.A. v. McDonald