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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)
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!
>
>
========================================================================
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