Former judge indicted

NONTAXPAYERS UNITED NEWSLETTER
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VOLUME I, No.6
'3S.GO/YR.
MAY-JUN, 1991
Common law copyright
1991
Vol. 131 No. 19
©1991, Donrey, Inc.
16 pages
Former judge indicted
By LOIS O'ROURKE
Journal staff writer
A former Ukiah Justice Court
judge pro tern Wednesday was
indicted by a federal grand jury in
San Francisco for income tax
evasion.
According to Assistant U.S. Dis­
trict Attorney Erik Doerring, Nor­
man L. Vroman. of Hopland. cur­
rently a deputy marshal for the ML
Sanhedrin MWlicipal Court, has
been indicted for one count of
file. federal income tax returns.
\! romari could not be reached for
comment this morning.
According to Doerring, the
indictment alleges Vroman failed
to file a return in 1985 tor an
income of $32,682 and failed to
pay an income tax of $6,499. Doer­
ring said the indictment also
alleges Vroman filed a false W4
Conn with his employer in 1985
Norman
Vroman
Arraignment
sel for May 29
felony income tax evasion and four
misdemeanor counts of failing to
See JUDGE, Back Page
/
HERE COMES THE
JUDGE
You can imagine my surprise when I received a call
from Norm Vroman. First, he told me he had been
indicted. That part wasn't any surprise. I often get
calls like that. But when he told me he was a
former California judge, and that he had not filed
for 15 years, I was indeed surprised; and to say the
least, quite excited. A very good patriot, Mitch M.,
had given Norm a copy of the Mar-Apr 1991 issue
of
the
NONTAXPAYERS
UNITED
NEWSLETTER. Norm indicated he was quite
impressed and wanted more information. Norm
obtained all back issues of the newsletter, plus a
copy of each book, TBKS and THE DEFENDANT.
Norm has since told me how impressed he is with
this material. Thanks, Norm. You make my day.
~.
Since it appears that Norm's case is going to be very
interesting, let me give you a bit more of his
background. He used to live in Southern California,
where, at various times, he had been a prosecutor, a
criminal defense attorney and also a municipal court
judge. In order to get out of the Southern California
NONTAXPAYERS UlOTED BEWSLETTER UPGRADED AS OF 1996
I
Judge,- - - - - - ­
Continued from Page 1
claiming he was exempt from
income laX.
Vroman had sufficient income to
require filing rcLums in the years
1986. 1987. 1988 and 1989 and
failed Lo do so, the indicunent also
alleges.
Vroman had an income of
S27,572in 1986.$15.022 in 1987,
i S11,502 in 1988 and $26.279 in
1989. Doerring said.
As a judge pro lem from 1985 10
1990. Vroman frequently heard
Iraffic and . other misdemeanor
case:s for Ukiah Justice Court Judge
Henry Nelson. He was known for
his liberal views on drug and search
and seizure cases and his hard line
on those convicted of drunken
driving.' , .
Vroman also was pan of the
defense team for convicted double
killer Robert Wayne Danielson in
1985.
Outspoken on the public's right
to own guns. Vroman also urged
the Board of Supervisors two years
ago not to suppon a movement to
ban the public from owning semiautomatic assault rines.
Doerring said Vroman is sche­
duled for arraignmenL in fedcr:al
coun in San Francisco before a fed·
eraJ magistrate May 29. If Vroman
pleads not guilty, U.S. District
Coun Judge Eugene F. Lynch will
preside over the case, Doerring
said.
If convicted of all five counts.
Vroman could receive a sentence
of nine years ~ prison and a fmc of
$200.000.
riat-race, he moved to Northern California where he
has been a judge pro tern, and is now a practicing
attorney as well as a deputy marshal for the Mt.
Sanhedrin Municipal Court in Ukia, CA. Not
exactly the "average" patriot, for sure.
Norm sent me his initial pleadings so that the
newsletter readers might benefit. He is attacking
VOLUME I, ISSUE RO. 6
COIOIOR LAW COPYRIGHT
During the calendar year 1985, Norman Leon
Vroman, defendant herein, then a resident of
Hopland, California, had and received income in the
sum of $32,682.31; that upon said income there was
owing to the United States of America an income
tax of $6,499.00; that well-knowing and believing
the foregoing facts, Norman Leon Vroman, on or
about the 15th day of April, 1986, in the Northern
District of California, did willfully attempt to evade
and defeat a large part of the income tax due and
owing by him to the United States of America for
. the calendar year 1985 by (1) failing to make an
income tax return on or before April 15, 1986, as
required by law, to any proper officer of the Internal
Revenue Service, (2) by failing to pay to the
Internal Revenue Service said income tax, and (3)
by filing with his employer during the calendar year
1985, in the Northern District of California, a Form
W-4,
Employee's
Withholding
Allowance
Certificate, in which he falsely claimed that he was
exempt from income tax withholding requirements.
the insufficiency of the indictment on the same
basic principles as did Sanocki, but is starting at a
lower rung of the ladder, so to speak. (See the
Sanocki Motion in the Exhibit in THE
DEFENDANT.)
Norm intends to make "case law" regarding the
insufficiency of the indictment. For the most part,
his "indictment" is quite similar to other indictments.
regarding this thing called the "income" tax. They
all, I submit, fail to alleged facts charging an
offense. They all, I submit, say that the defendant
had income, or "taxable income", and therefore, the
defendant knew he was required to file. But since
the income is not, and cannot be, the subject of the
tax, but is merely the yardstick used to measure
some tax, the indictments fail to allege facts
charging an offense.
The usual indictment or information will state that
the defendant violated Section 7201 and/or 7203.
But these sections only state the penalty which
would be applied if the person otherwise violated
the revenue laws.
In violation of Title 26, United States Code,
Section 7201.
It didn't take the information in my books or
COUNT TWO: (Title 26 U.S.C. 7203)
newsletters for Norm to recognize that the
indictment merely stated the penalty statutes and
failed to name any statute that could have been
violated. Any attorney should recognize that it is
impossible to violate a statute that ml~rely describes
the penalty for violating a law. For example,
Section 7203 talks about any person who is required
by the revenue code to make a return, and who
willfully fails to make such return, is guilty of a
misdemeanor. Section 7203 simply does not refer
to any particular statute or statutes that could be
violated.
The Grand Jury Charges:
During the calendar year 1986, Norman Leon
Vroman, defendant herein, then a resident of
Hopland, California, had and received gross income
of $27,572.05; that by reason of such gross income
he was required by law, following the close of the
calendar year 1986, and on or before April 15, 1987,
to make an income tax return to the District Director
of the Internal Revenue Service for the Internal
Revenue District of Sacramento, at Sacramento,
California, or to the Director, Internal Revenue
Service Center, at Ogden, Utah, or 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; that well-knowing
and believing all of the foregoing, he did willfully
fail to make an income tax return to said District
Director of the Internal Revenue Service Center, to
said Director of the Internal Revenue Service
Center, or to any other proper officer of the United
States.
For your review you will find retyped below
information from the indictment, Norm's Notice of
Motion and Motion to Dismiss with Points and
Authorities, and the government's Opposition to
Defendant's Motion.
THE INDICTMENT
COUNT ONE: (Title 26 U.S.C. 7201)
The Grand Jury charges:
NONTAXPAYERS UlOTED NEWSLETTER
In violation of Title 26, United States Code,
Section 7203.
2
VOLUJIE I, I88W NO.6
COIDIOllLAW COPYIUGBT
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Now let's see how Norm responded to this
insufficient indictment.
Counts Three-Five are for the years 1987-1989 and
are identical to Count Two (for supposedly
violating 7203, which is the "failure to file" penalty
statute).
NOTICE OF MOTION AND MOTION TO
DISMISS
Often times, people are charged with both "tax
evasion" and "failure to file". It is interesting to
note that the only year Norm was charged with 7201
("tmcevasion") is the year in which, he submitted a
W-4 form. And for this year, he was not charged
with "failure to file". One might surmise that the
only affirmative act of tax evasion the prosecution
could allege in Norm's case is the filing of the W-4
form claiming "exempt". To prove tax evasion, the
government must prove an affirmative act.
TO: The United States of America, Plaintiff, and to
the United States Attorney, Counsel for Plaintiff.
PLEASE TAKE NOTICE that on July 3, 1991
at 10:00 A.M. or as soon thereafter as counsel may
be heard, in the courtroom of the Honorable Eugene
F. Lynch, defendant Norman Lee Vroman will
move the court for an order dismissing all five
counts of the indictment herein for failure to contain
the elements of the offense intended to be charged
and sufficiently apprise the defendant of what he
must be prepared to meet.
But in the case reported in the last issue of the
newsletter, starting at page 4, the defendant was
charged with 7201 for all years, and the alleged
affirmative act for the years subsequent to the year
the W-4 exempt form was filed, was the supposedly
affirmative act of "allowing" the W-4 exempt form
to remain in effect. In that case, the prosecution got
by with supposedly proving an "affirmative act" of
doing nothing about the W-4 form. I haven't
researched this, but I would think the defendant in
that case might have an appealable issue in that the
government did not prove an affirmative act when
all they really proved is that he did nothing about
the W-4 form that was in effect. If that ever
happens to you, I think you would want to challenge
the claimed "affirmative act of doing nothing" both
before trial and during the trial proceedings.
This motion will be based on this Notice of
Motion and attachments thereto, the Memorandum
of Points and Authorities in support thereof and the
record, papers and files in the above-entitled matter.
MOTION TO DISMISS
COMES NOW the defendant, Norman Leon
Vroman, appearing specially and not generally, and
moves this court pursuant to Rule 12(b)(2) of the
Federal Rules of Criminal Procedure to dismiss the
instant case on the following grounds:
1. The indictment fails to set forth any statute,
code or regulation which imposes a liability upon
the defendant for the payment of said tax.
[See Note A-I below. Ed.]
At any rate, Norm also "allowed" a W-4 exempt
form to remain in effect, but I think the prosecution
might have been a bit reluctant to allege an
affirmative act of doing nothing against a former
judge.
r---.,
\
2. The indictment fails to set forth any statute,
code or regulation which imposes a requirement
upon defendant to file a return.
3. The indictment indicates the penalty statutes
under Title 26 U.S.C. Sections 7201 & 7203, which
refer to other unspecified statutes, codes or
regulations not discernible within the indictment.
If there is no affirmative act, I can understand why
the government would not attempt to prove tax
evasion. But when they have things such as a W-4
Exempt form as the alleged affirmative act of tax
evasion, ,I often wonder why the government
charges some defendants with failure to file and tax
evasion, and others with just one or the other.
Anyway, Norm has just one count for 7201 and 4
counts for 7203.
NONTAXPAYERS VNITED NEWSLETTER
WHEREFORE, defendant requests this Honorable
Court to dismiss the indictment.
Dated: June 20, 1991
lsi
Norman Leon Vroman
In Propria Persona
3
VOLUME I, ISSUE NO. 6
COllllllONLAW COPYRIGHT
Title 26 U.S.C. Section 7201 is quoted in its
entirety as follows:
SUMMARY
Defendant has been unable to enter a plea during
these criminal proceedings due to the vague and
indefinite indictment presented to him.
The
indictment is replete with conclusions, none of
which apprise the defendant of the nature and cause
of the accusation.
"Any person who willfully attempts in any
manner to evade or defeat any tax imposed
by this title or the payment thereof shall, in
addition to other penalties provided by law,
be guilty of a felony and upon conviction
thereof, shall be fined not more that
$100,000.00 ($500,000.00 in the case of a
corporation), or imprisoned not more than 5
years, or, both_together with the ,costs of
prosecution.
POINTS and AUTHORITIES
The 6th Amendment to the United States
Constitution requires that in all criminal
proceedings, the accused -shall have the right to be­
informed of the nature and cause of the accusation.
Sections 7201 and 7203 of Title 26 U.S.C. are
clearly penalty statutes relying on other regulations
or laws imposed by Title 26. Thus these Sections
must be read in conjunction with other sections
which impose liability or duty, to determine what
the nature of the offense might be.
This right has been upheld many times by the
United States Supreme Court as being fundamental
in the law of Criminal Procedure:
"...that the accused must be apprised by the
indictment with reasonable certainty of the
nature of the accusation against him, to the
end that he may present his defense..."
On its face the above statute does not proscribe
any specific act on part of the defendant, but merely
stipulates penalties when unspecified parts of the
Internal Revenue title have been violated. Thus,
one does not know the specific act one has violated
unless another statute or regulation is also referred
along with Section 7201. This argument holds true
for Title 26, Section 7203. This statute too, is only
a penalty statute that requires a violation of another
section of the code or that of a regulation which
would then invoke the liability of Section 7203
when a "person required under this title...fails...
make such return..." [Title 26 U.S.C. Section 7203]
The question becomes which return under which
section of the title?
"An indictment not so formed is defective,
although it may follow the language of the
statute."
us. v. Simmons, 96 U.S. 360, 362
[See Note A-2 below. Ed.]
"In an indictment upon a statute, it is not
sufficient to set forth the offense in the
words of the statute, unless those words of
themselves fully, directly, and expressly,
without any uncertainty or ambiguity, set
forth all the elements necessary to constitute
the offense intended to be punished..."
Us. V Carll, 105 U.S. 611, 612
None of the counts in the present indictment set
forth any duty "imposed by this Title" thus
rendering it defective. See Keck v. Us. 172 U.S
434, and Steiner v. Us. 229 F.2d 745 9th Circuit. It
is a long held principle that penal statutes must be
clear as: to their understanding. The Supreme Court
has helld that "it is a fundamental tenet of due
process that [n]o one may be subject to peril of life
or property as to [guess] the meaning of penal
statutes." Lanzetta v. New Jersey 306 U.S. 451, 453
(1939). The Court further explained that a statute is
"...invalid if it fails to give a person of ordinary
"Undoubtedly the language of the statute
may be used in the equal description of an
offense, but it must be accompanied with
such a statement of the facts and
circumstances as will inform the accused of
the specific offense, coming under the
general qescription with which he is
charged."
us. v. Hess, 124 U.S. 483, 487
See also:
US. v. Cruikshank 92 U.S. 542; Russell v.
Us. 396 U.S. 749
NONTAXPAYERS UNITED NEWSLETTER
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VOLUME I. ISSUE RO. 6
COlllMORLAW COPYRIGHT
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The concept that an affmnative act imposes the
criminal liability as imposed in the penalty
provision is stated in the case of People v. Clenney,
165 Ca2 241.
intelligence fair notice that his contemplated
conduct is forbidden."
v. Harriss 347 U.S.
612,617.
u.s.
~
Indeed, Section 7201 or Section 7203 do not
meet the criteria in Lanzetta, these statutes merely
stipulate a penalty and do not affirmatively
proscribe any action on the part of the defendant.
The Highest Court further explains any ambiguities
of a taxing statute specifically, are held to even a
higher standard as to vagueness and are to be
construed most favorably for the citizen. The Court
has stated:
It must follow that in cases where a violation
of the statute depends on the violation of
another section, the statute is in itself not
sufficient to defme the offense. The offense
consists of violating two statutes and both
must be set out to be sufficient.
People v. Clenney, Id.at 253.
The clearest example of a case that indicates the
penalty provision under Section 7203 must be
construed with other statutes is the case
v.
Menk, 260 F.Supp. 784. The court's words are most
enlightening to the defendant's position.
In interpreting a tax statute, the court must
not extend its provisions beyond the clear
import of the language employed. Such a
statute in case of doubt as to its scope,
"...should be construed most strongly in
favor of the citizen against the state."
Gould v. Gould, 245 US. 151.
~.
u.s.
It is immediately apparent that this section
alone does not define the offense as the
defendant contends. But rather, all three of
the sections referenced to the information ­
Sections 4461, 4901 and 7203 must be
considered together before a complete
definition of the offense is found. Section
4461 imposes a tax on persons engaging in a
certain activity; Section 4901 provides for
the payment of the tax and section 7203
makes it a misdemeanor to engage in the
activity without having first paid the tax, and
provides the penalty. It is impossible to
determine the meaning or intended effect of
anyone of these actions without reference to
the others.
[See Note A-3 below. Ed.]
Furthermore, if a statute is written in general
terms, there must be an implementing statute or
regulation to give meaning to the statute. Indeed,
cross reference to Section 7201 [Exhibit 1] indicate
the following statutes, Sections 5684, 6420, 6421,
6427 are linked to the penalty provisions of Section
7201, however, the government has failed to
indicate whether any of these statutes were the
affirmative acts the Petitioner committed.
Likewise, Section 7201 is cross referenced with
other statutes as noted in the Exhibit yet the
government has also failed to indicate whether if
any of these statutes are the affirmative acts that the
defendant has allegedly violated. These statutes
include Sections 6038, 6046, 6048, 6686, and 6698.
Menk makes it clear that the indictment must set
forth the precise statute imposing the tax or
imposing the requirement to pay the tax or make a
return as well as the statute making it a crime not to
do so and imposing the penalty. The indictment in
this case does not.
The Supreme Court has affirmed the need for
specific statutes or regulations to implement general
penalty provisions similar to Section 7201. Indeed,
if their is no provision for the act accused of, the
penalty provision is not applicable. For example in
the case of
v. Farrar, 281 U.S. 624, a case
concerning the prohibition era, alcohol was
forbidden by law. That penalty provision of the
law, however, was written in general terms and its
enabling statutes applied only to the sellers of
alcohol and not to a purchaser of alcohol like Mr.
u.s.
-~
WHEREFORE, it is respectfully requested that
this court dismiss the indictment in this action as
insufficient to give the accused, Norman Leon
Vroman, adequate notice of the nature and elements
of the accusations being brought against him, or in
the alternative certify the question regarding the
sufficiency of the indictment, regarding whether it
Farrar.
NONTAXPAYERS UNITED NEWSLETTER
5
VOLUME I, ISSUE RO. 6
COIDIORLAW.COPYRIGRT
GOVERNMENT'S RESPONSE
comports with the requirements of Amendment VI
of the United States Constitution, for an
interlocutory appeal to the United States Court of
Appeals for the Ninth Circuit.
UNITED STATES' OPPOSITION TO
DEFENDANT'S MOTION TO DISMISS
PRELIMINARY STATEMENT
Dated: June 20, 1991
Defendant has filed the instant motion
contending that the elements of the offense to be
charged so as to-sufficiently apprise him of what he
must be prepared to meet. Defendant's motion is
Respectfully submitted:
lsi
Norman Leon Vroman
without merit and should be denied.
DISCUSSION
Rule 7(c)(1) of the Federal Rules of Criminal
Procedure provides that an indictment shall be "a
plain, concise and definite written statement of the
essential facts constituting the offense charged."
The sufficiency of an indictment is measured by
determining whether the charging allegations
contain the elements of the crime alleged and
whether they sufficiently inform the defendant as to
what he must be prepared to meet and whether the
allegations present with sufficient clarity an issue
sufficient to be raised in bar to a subsequent
v. Buckner, 610 F.2d 570, 573
prosecution.
(9th Cir. 1979).
CERTIFICATE OF SERVICE
It is hereby certified that a true and correct copy
of the foregoing was hand delivered to the United
States Attorney, at his respective office, on this 21st
day ofJune, 1991.
lsi
Norman Leon Vroman
u.s.
Now the insufficiency of the indictment could not
have been explained in a much more simple and
direct manner. I talked to two of Norm's attorney
friends; both are heavy-duty criminal defense
attorneys. One is acting as Norm's "advisory
counsel". They both recognize the insufficiency of
the indictment. You and I can see that it is
insufficient. But does the Assistant United States
Attorney admit to its insufficiency. No. But look
how he tries to get around the truth. He first shows
what is required in an indictment, which is true
enough. He then essentially repeats the verbiage of
the insufficient indictment and talks about the
elements of the crime that must be proved at trial;
totally ignoring the fact that the indictment only
shows the penalty statutes, without showing any
statute that could have been violated. Is this AUSA
trying to see that justice is done, or is he just trying
to win a case? I'll let you be the judge.
Defendant is charged in Count One of the
indictment with income tax evasion for the tax year
1985 in violation of 26 U.S.C. 7201. Defendant is
charged in Counts Two-Five of the indictment with
willfully failing to file income tax returns for the
years 1986-1989 in violation of26 U.S.C. 7203.
The necessary elements of income tax evasion
under 26 U.S.C. 7201 are (1) willfulness, (2)
existence of a tax deficiency, and (3) an affirmative
act constituting an evasion or attempted evasion.
Sansone v. US., 380 U.S. 343 (1965). Count One
of the indictment charges that during the calendar
[Should be calendar year. Ed.] 1985 defendant had
and knew he received income of $32,682.31,
resulting in a tax deficiency of $6,499, that he failed
to file a federal income tax return for the year 1985,
and that in 1985 he filed a false Employee's
. Withholding Allowance Certificate, Form W-4,
with his employer claiming to be exempt from ~
income tax withholding requirements. The charges,
as such, contain the necessary elements of the crime
of income tax evasion and advise defendant of each
NONTAXPAYERS UlfITED BEWSLETTER
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VOLUME I, ISSUE BO. 6
COIOIOBLAW COPYRIGHT
would recognize the insufficiency of the indictment,
just as readily as did Norm and his attorney friends.
factJle must be prepared to meet. Us. v. Foster,
789 F.2d 457 (7th Cir. 1986); Us. v. Copeland, 786
F.2d 768 (7th Cir. 1985); Us. v. House, 617
F.Supp. 240 (W.D. Mich. 1985).
We went into the courtroom a bit early to hear the
preceding case. Norm wanted to get an idea of what
kind ofjudge he was going to be dealing with. The
case that was heard just before Norm's involved the
sentencing hearing of a man convicted of being
involved with drug dealing and using a firearm in
the commission of the crime. Judge Eugene F.
Lynch seemed to be very interested in discussing all
of the very. fine points .of law regarding this
convicted drug dealer. Good sign for Norm, right?
Well, not quite.
The necessary elements of the offense of failure
to file an income tax return under 26 U.S.C. 7203
are (1) the taxpayer was required to file an income
tax return (2) he failed to file a return, and (3) the
failure to file was willful. Us. v. Brodie, 858 F.2d
429, 497. Counts Two-Five of the indictment
charge that during the calendar. years 1986-1989
defendant had and knew he received income of
$27,572.02,
$ 15,{)22. 12,
$11,502.10
and
$26,279.42, respectively, that he failed to file
federal tax returns for the years 1986-1989, and that
he knew he was required by law to file returns for
the years 1986-1989. Willfulness under 26 U.S.C.
1203 is established where an individual failed to file
a return when he knew that a return was due. Us. v.
Evanko, 604 F.2d 21, 23 (6th Cir. 1979), cert.
denied, 444 U.S. 1024 (1980); Us. v. Hawk, 497
F.2d 365, 366-369 (9th Cir. 1974), cert. denied, 419
U.S. 838 (1974); Us. v. Brown, 600 F.2d 248,258
(9th Cir. 1979), cert. denied, 444 U.S. 917 (1979).
The indictment identifies and charges each element
of the offense of failure to file an income tax return
for the years 1986-1989. Defendant's challenge is
therefor without merit.
[See Note A-4 below. Ed.]
It seems Judge Lynch takes a whole different
approach to alleged violations of the Internal
Revenue Code than he does to drug related crimes.
Let's not worry about any important points of law
when in comes to these so-called "tax" crimes.
Essentially, the judge denied the motion to dismiss
in short order. Norm presented more of his oral
argument. The judge then reluctantly asked the
prosecuting attorney to submit papers showing the
actual statutes that had been violated. He then
changed his mind again and told Norm that he knew
Norm knew he was required to file and pay, and
then again stated he denied the motion. No point in
telling a defendant what law he supposedly violated.
Try him anyway. (Reminiscent of the 1670 trial of
William Penn.)
CONCLUSION
Judge Lynch also denied Norm's request to certify
the question to the Ninth Circuit. Seems this is a
discretionary decision for the judge to make. Force
the defendant to go through the trial and then ask if
thl~ obviously insufficient indictment is sufficient.
Good show, Judge Lynch.
Based on the foregoing, defendant's motion to
dismiss should be denied.
William T. McGivern, Jr.
United States Attorney
/s/
Erik P. Doerring
Assistant United States
Attorney
Tax Division
Well, Norm has not let Judge Lynch's denial go
unchallenged. He has submitted a Petition for Writ
of Mandate to the 9th Circuit which is to force
Judge Lynch to do the right thing regarding the
indictment. He has also submitted a motion for a
bill of particulars. A bill of particulars is another
means to attack certain short-comings in an
indictment. (See Mar-Apr 1991 issue, page 5
regarding the legal standard for a bill of particulars.)
Sooner or later, Norm should be able to force the
The hearing regarding this motion to dismiss was
set for July 3, 1991 in San Francisco. I just had to
see how a federal district court judge would treat the
indictment and motion to dismiss, so I flew up for
the day. Surely a responsible and competent judge
NONTAXPAYERS UNITED NEWSLETTER
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VOLUME I, ISSUE NO.6
COMMONLAW COPYRIGHT
almost-implies (and incorrectly so) that the income
is the subject of the tax.
government to take that "Journey Through the
Code." (See THE DEFENDANT, Chapter 2.)
My suggestion may be "picky", but I look for every -----­
possible opportunity to bring out the fact that
"income" is not, and cannot be, the subject of any
tax.
STAY TUNED
Norm is sending me transcripts of the hearing of
July 3, 1991 and a previous hearing in his case.
Also, copies of his petition for writ of mandate and
the. ~otion for a bill of particulars. At least portions
of these documents will appear in the next issue of
this newsletter.
NOTE A-2. Compare this motion to dismiss with
the legal standards regarding a bill of particulars
shown on pages 5-6 of the last issue of this
newsletter. Since both a motion to dismiss and a
motion for a bill of particulars seem to be tools to
,attack an indictment in one way or another, the
challenge seems to be to know which tool to use
and when and how to use it. Norm has used the
motion to dismiss first, and, since that has been
denied, a motion for a bill of particulars second.
In one way it is good that the federal district court,
judge denied Norm's motion to dismiss. This gives
Norm a chance to get the issue before the Ninth
Circuit Court of Appeals. A favorable decision at
that level will create "case law" which can then be
used by others to force the government to try to put
together sufficient indictments; if they can. (You
will remember that Sanocki's case was dismissed at
federal district court level, and therefore, did not
establish case law.)
NOTE A-3. The Menk case involved a tax on the
operation of gaming devices; not the so-called
"income" tax. The case is good in that it clearly
shows that Section 7203 does not define any
offense. Being a federal district court case, it is
persuasive on other courts, but not dispositive. In
other words, it is not considered "case law", but is
still usable for explanatory and persuasive purposes.
Stay tuned. I will try to keep you informed. And
don't forget. It is time to renew your subscription to
the newsletter.
NOTE A-4. Proving an individual received a -----­
certain amount of earnings is not the same thing as
proving the law makes him liable or proving the law
requires him to file tax returns. Seldom have
defendants ever tried to force the government to
prove the first major elements of the offense in
either 7201 or 7203 cases.
Usually, without
objection, the defendants allow the judge to give a
directed verdict. (See THE DEFENDANT, page
80.)
EDITOR'S NOTES A-I - A-4
NOTE A-l. Instead of saying "for the payment of
said tax", I think I would have said, "for the
payment of any tax whatsoever." The reason being,
is the so-called "income" tax is merely a name. The
word "income" is used in the name simply because
the income is used to measure a tax; on something.
But what is the something?
VICTORIES
I submit that no place in the Code will you find
where it imposes a tax on "income". (See THE
DEFENDANT, Chapter 2.) And we know that
taxes imposed on people (capitation taxes) and taxes
imposed on property must be apportioned among
the states, and the federal government has no such
tax at the present time. So a question is raised.
Upon what exactly is the tax supposedly imposed.
Until I learn the correct answer to that question, if
such an answer exists, I cannot understand what it
would be that would make one liable for a tax or
required to file a return. Therefore, I think by
saying "any tax whatsoever" will give a bit better
chance to open the door to raising the question as to
the exact subject of the tax. To say "said tax"
NONTAXPAYERS UNITED NEWSLETTER
ROY & DIXIE POWELL. I am particularly
pleased with this victory because it demonstrates
that if the defendants will get their act together, so
to speak, by being prepared to testify as to why they
determined they were not required to file at the time
they decided not to file, then they will at least have
a good chance to win by making it impossible for
the government to prove the third important element
of the alleged crime; willfulness. Granted, this is
winning by using the "ace in the hole" (not willful)
in the <:vent that the jury is led to believe that the
government "proved" that the defendant was
required to file, or that the defendant was liable.
Nevertheless, it is much better than getting
convicted.
8
VOLUIIE I. ISSUE NO.6
COMMONLAW COPYRIGHT
relied upon informing their belief. The court
refused to allow the Powells to read to the jury
Section 6020(b), which they said they had studied
in determining that the Service could file their
returns for them, which was the basis for
determining the filing of returns to be voluntary.
Of course I will be very happy when a jury leaves a
court-room saying the government never proved the
defendant was liable or required to file. When that
happens a few times, more Americans will start
questioning the so-called "income" tax. And that
won't happen until defendants are much better
prepared and defenses are more thoroughly
constructed.
JUDGES ERRORS. The judge gave the good
instructions to the jury on willfulness. The judge
told the jury willful means the voluntary intentional
violation of a known legal duty. The judge further
. told .$ejwy that if a person believe,S, in good faith,
that he or she has done all that the law requires, that
person cannot be guilty of criminal intent to
willfully fail to file a tax return. (O.K. so far.) But
then the judge qualified that statement by saying,
"[b]ut if a person acts without reasonable grounds
for belief that his or her conduct is lawful, it is for
you to decide whether the defendant acted in good
faith, or whether they willfully intended to fail to
file an income tax return."
For right now, hats off to the Powells. They were
prepared to testify as to why they determined they
were not required to _ file.
\Yhether their
determination was right or wrong, they were not
willful. They set up their defense accordingly.
Providing the federal district court judge did
everything he was supposed to according to law, the
Powells had a good chance of overcoming the
government's allegation of willfulness.
And if the judge did not do as he should according
to law, the Powells had their defense set up to
appeal at least some of the judge's errors. Did the
judge commit errors? You bet!
This is just another way of telling the jury that the
good-faith belief must be objectively reasonable.
This allows the jury to decide that if they don't think
the belief is reasonable, then the Powells would be
guilty regardless of what the Powells actually
believed. I personally believe the judges know that
they are adding some things to the instructions that
should not be added, and I believe they add such
things in order to manipulate the jury and to give
the government the edge in getting a guilty verdict.
You can bet that the judge was well aware of the
recent case of Cheek v. Us., and would certainly
know that "reasonable grounds" is not part of the
definition of willful. I believe the judges are hoping
the defendants are not sharp enough to catch these
things. And if a defendant does recognize the
judge's "error", then maybe the defendant won't be
able to properly or timely appeal the issue.
On March 8, 1989, the government filed an
indictment charging Roy and Dixie Powell with
willful failure to file tax returns in violation of 26
U.S.c. 7203 for the years 1982, 1983, and 1984.
Both had submitted W-4 forms to their employers
claiming exempt, and no money was withheld from
their pay. (Makes one wonder why they were not
also charged with willfully attempting to evade a
tax, since such W-4 forms are use against other
individuals as an alleged affirmative act of
attempting to evade a tax.)
The Powells testified regarding how they came to
the conclusion that they were not required to file.
They had researched the tax laws. They concluded
that wages and compensation are different from
income; and that according to Section 6020(b), the
IRS could file their returns for them and that their
filing was therefore voluntary. Roy testified that he
intended to obey the law as he understood it. Dixie
testified that she wanted to do what she is supposed
to do.
After the jury had deliberated for some time, it sent'
a note to the judge asking, "... can IRS file a 1040
wi1thout persons signing? ... In other words, can or
willI the IRS file a 1040 for a person who does not
file - this would be without taxpayer's request or
consent." The court then read to the jury 26 U.S.C.
6020(b), the statute that it had prohibited the
The district court allowed them to testify as to their
understanding of the law and its requirements on
Powells from introducing. The court explained the
filing a return. But the district court would not
statute as follows: "[T]he [Service] is permitted and
allow them to present the statutes or cases they
NONTAXPAYERS UNITED NEWSLETTER
9
VOLVllIE I, ISSUE NO.6
COIUIONLAW COPYRIGHT
The proper response to the jury's question regarding
the IRS's ability to file a tax return on behalf of a
taxpayer was that the actual law was irrelevant for -..,
purposes of the case; all that mattered was the
Powells' good faith understanding of the law. The
instruction constituted prejudicial error. The case
was also reversed on this ground.
not, required to prepare a return for a person who
fails to make any return required by law, .... This
section ... provides the [Service] with some recourse
should a taxpayer fail to fulfill his obligation to file
a return and does not supplant the taxpayer's
original obligation to file."
In ruling on the good-faith defense instructions, the
Ninth Circuit Court of Appeals relied on the,resent
case of Cheek v. Us.
The, Ninth Circuit's ruling regarding the admission
of evidence is something I have been waiting for;
for a long time. This would not have been possible
if the Powells had chosen not to testify in their own
. behalf. Many patriots have tried to get the law in
front of a jury so that the jury could be better
informed. Of course the source of the law to the
jury has always been from the judge's instructions
on the law; right or wrong. I have said that one can
get the law to the jury, but it must be done
indirectly, and not directly. In other words, the
defendant cannot instruct the jury as to the law or as
to court rulings on the law. But the defendant can
testify as to the documents he relied upon in making
his decision not to file returns. Getting these
documents entered as factual evidence as to what
the defendant relied on is getting the law to the jury
indirectly. (All is fair in love and war.) This
applies not only to court rulings; it applies to books
and other documents relied on as well.
If the defendant had a subjective good faith
belief, no matterhow.unreasonable, that he
was not required to file a tax return, the
government cannot establish that the
defendant acted willfully.....
The premise of Cheek is that a person cannot
be convicted of willful failure to file a tax
return if he subjectively believes in good
faith that the tax laws do not apply to him.
The test does not focus on the knowledge of
the reasonable person, but rather on the
knowledge of the defendant.
Given the emphasis in Cheek on the
defendant's subjective belief, and the
specific holding that the belief need not be
objectively reasonable, the district court's
reference to "reasonable grounds for belief'
was misplaced.
It is interesting to note that John Cheek did get court
cases and other documents admitted into evidence,
but "some how" this evidence "sort of got lost" on
its way to the jury. The Seventh Circuit ruled (since
they also held that John's belief wasn't "objectively
reasonable" anyway) that the loss of the evidence
was "harmless error". Folks, you have to get up
early just to barely keep even with the tyrants.
.... We reverse on this ground.
In ruling on the Section 6020(b) instructions, to
which the Powells had objected prior to the judge
giving the instructions, the Ninth Circuit Court of
Appeals agreed with the Powells that the lower
court's instruction on the law relating to 6020(b)
was improper. The instructions undermined the
Powells' good-faith defense.
Discussing the merits of the Powells' argument
regarding the admission of evidence, the Ninth
Circuit said:
The validity or invalidity of the Powells'
interpretation of Section 6020(b) was not at
issue. No purpose was served by informing
the jury that the Powells' interpretation was
incorrect. In context, the instruction was
tantamount to instructing the jury to
disregard evidence of the Powells'
understanding that they were not required to
file income tax returns.
NONTAXPAYERS UNITED NEWSLETTER
~
The Powells' argue that the jury could not
have assessed whether their intent to fail to
file income tax returns was "willful" because
they were not able to present evidence of
section 6020(b), which they consulted in
fomling their intent. ....
The Supreme Court in Cheek held that
"forbidding the jury to consider evidence
10
VOLUME I, ISSUE NO.6
COMMOHLAW COPYRIGHT
~
~
6th AMENDMENT RIGHTS
that might negate willfulness would raise a
serious
question
under
the
Sixth
Amendment's jury trial provisions." .... The
district court's exclusion of section 6020(b)
had the effect of forbidding the jury to
consider evidence that might negate
willfulness.
ASSISTANCE OF COUNSEL
WHAT DOES IT MEAN?
The Sixth Amendment to the United States
Constitution guarantees a defendant the right to
have the assistance of counsel for his defense.
The district court's .ruling constituted
prejudicial error. The general rule that the
district court does not abuse its discretion
when it does not allow, the_defendant to
present law to the jury must give way when
the defendant's sixth amendment rights
hinge on admission of the law..... We [also]
reverse on this ground.
If you check your dictionaries, you will find ~at.the
word "assistance" is defined as the act of asslstmg,
and that to assist means to help or aid or give
support In a subordinate capacity. I do not believe
that you will find anything in the dictionaries
defining "assistance" so as to preclude, defeat or
conflict with self-representation. To the contrary,
an assistant, that is, one who gives assistance, is
defined as one acting as a subordinate to, and not
replacing, the one whom he is assisting.
The Powells' conviction was vacated and the cause
remanded back to the district court for a new trial.
A new trial if the government wants to take them on
agam.
~
.~
You will remember from THE DEFENDANT,
pages 22-26, the U.S. Supreme Court ruled that the
right of self-representation is implied in the Sixth
Amendment. So how is it that the courts can
restrict a defendant to a choice between self­
representation or having an attorney to represent
him. Under the constraints of the "choice" given by
the judge, if the defendant chooses self­
representation, he gives up his right to have the aid
(assistance) of counsel as guaranteed by the Sixth
Amendment. If he chooses an attorney to represent
him, the judges are always quick to point out to the
defendant that the attorney is ,now in charge and the
defendant cannot say anything in the courtroom
except in the event he testifies on the witness stand.
With the attorney now in charge, the defendant no
longer has either the right of self-representation or
the subordinate aid of assistance of counsel. To get
counsel of any kind, he virtually has to give up both
the right of self-representation and the right to the
assistance of counsel.
RON PABISZ. Ron was tried in March of 1990.
He had requested the judge instruct the jurors to
apply a subjective standard of good faith. Instead,
Judge Leonard D. Wexler told the jury, "The issue
for you is was the defendant reasonable in having a
good faith belief that the income tax law did not
apply to him." Plain error on the part of the judge.
I have read a number of court transcripts from Judge
Wexler's court and I believe he is one of the most
prejudiced judges imaginable. It does my heart
good to have the Second Circuit Court of Appeals
reverse a conviction in a case handled by Wexler,
and I just know there will be more to come.
Congratulations to Ron.
BRUNO SINIGAGLIO. Getting the government
to disclose audit and other tax investigation history
of prospective jurors under 26 U.S.C. 6103(h)(5)
has been quite successful over the past few months.
(See Nov-Dec 1990 issue of this newsletter.) The
big problem has been to get the government to
reveal the entire investigative history.
The
government claimed it could only go back six years.
The Ninth Circuit said this was reversible error.
Hence, Bruno's case was reversed and remanded for
a new trial.
If a defendant chooses not to give up any rights, the
court will usually appoint an attorney to represent
th{~ defendant, and place a gag order on the
defendant. If the defendant tries to speak for
himself, the judge threatens him with contempt of
court. Many patriots have gone through this
experience. Such is a case of a friend of mine.
MORE VICTORIES. There are more victories to
report, but we just ran out of space. See next issue.
NONTAXPAYERS UNITED NEWSLETTER
11
VOLUME I, ISSUE RO. 6
COMMORLAW COPYRIGHT
Art's case started back in 1986 when he was charged
and convicted under the California Revenue and
Taxation Code, Section 19401. (Failure to file, with
or without intent.) This was before Art knew of my
then newly published book, TBKS.
Court of the South Bay· Judicial District in
Torrance, California to replace court-appointed
attorney, Seymour I. Cohen, with counsel who will ~.
protect Accused's rights with meaningful and
effective assistance of counsel.
I had met Art once before when few patriots met at
his house. I had not seen him again until he had
learned of my book and contacted me. He was "out
of jail" while appealing his conviction. Without
going into detail, he had used many of the frivolous
arguments, but he did do. a few things "right" in that
he had set a pretty good administrative record which
would at least demonstrate that he had not willfully
Of course, he had been
violated any laws.
convicted under the soon to be infamous "with or
without intent" language of 19401.
This motion will be based on this Notice of
Motion and attachments thereto, the Memorandum
of Points· and· Authorities in support thereof
included herein, and the records, papers and files in
the above-entitled matter.
- Dated: July22, -1991
Arthur H. Lawrence
In pro per - Sui Juris
MOTION
COMES NOW the Accused, Arthur H.
Lawrence, and moves this Court to replace court­
appointed attorney, Seymour I. Cohen, with counsel
who will protect Accused's rights with meaningful
and effective assistance of counsel, pursuant to the
Sixth Amendment to the United States Constitution,
on the following grounds:
Since that time, he has served over two years in jail,
and has been out on probation for some time. To
quote his "counsel" (recently appointed to handle a
probation violation hearing), Art "has inundated the
courts with pleadings" since he has been out. Art
did not waived any rights, so this "counsel" was
forced down his throat, and the resultant gag order
was imposed.
1. Accused is being deprived of his Sixth
Amendment right of self-representation as a result
of Attorney Cohen having been appointed by the
Court to represent the Accused over the Accused's
strenuous objections.
Since many patriots have suffered the same problem
that Art was facing, it was time to do a bit more
research to supplement the material in pages 22-26
of THE DEFENDANT, and a lot more work. The
following is the document recently submitted by
Art. Hopefully, it will help many patriots find the
way of retaining both the right of self-representation
and the right of assistance of counsel. His court­
appointed "counsel" did state in open court that this
document is, and I quote, " a scholarly written
memorandum of law."
3. Accused is embroiled in irreconcilable
conflict with Attorney Seymour I. Cohen, which
further deprives Accused of effective assistance of
counsel.
NOTICE OF MOTION AND MOTION
WHEREFORE, Accused requests that this
Court replace court-appointed attorney, Seymour I.
Cohen, with counsel who will, in truth, provide
meaningful and effective assistance of counsel
pursuant to the Sixth Amendment so Accused can
PLEASE TAKE NOTICE that Arthur H.
Lawrence, the Accused in the above entitled matter,
will move for an order before the Honorable
, or
as soon thereafter as may be heard, at the Municipal
NONTAXPAYERS lJIlllTED NEWSLETTER
~.
2. Accused is being deprived of his Sixth
Amendment right of assistance of counsel as a
result of Attorney Cohen having been appointed to
represent the Accused and who is now master of the
case, forging ahead with Attorney Cohen's defense
and not the Accused's defense, and consequently is
not providing the assistance of counsel to
supplement the Accused's right of self­
representation, all in violation of the language and
spirit of the Sixth Amendment.
The document will answer the question as to how
the courts can come to the erroneous "conclusion"
that they can restrict a defendant to such a "choice"
and how they have managed to covertly disregard
the true meaning of the word "assistance".
Thomas P. Allen, on July _, 1991 at
Is!
12
VOLUME I, ISSUE NO.6
COMJll[OltLAW COPYRIGHT
~
representation), or· waiving· . both rights by
acquiescing to the appointment of counsel to
represent him, and thus allowing court-appointed
counsel to become master of the case as opposed to
being the assistant. The express language of
Faretta, supra, clearly shows that the right of self­
representation is a coexistent right guaranteed by
the Sixth Amendment; and not merely one of two
disjunctive rights created by statute. Faretta clearly
shows that the right of self-representation is to be
supplemented by counsel; not replaced by counsel.
exerCIse his Sixth Amendment right of self­
representation.
This Notice of Motion and Motion have been
prepared without the assistance of counsel and is
subject to correction, where appropriate, when
of counsel
so
court-appointed
assistance
recommends. Therefore, Accused requests this
Court to appoint assistance of counsel to· aid the
Accused in presenting this motion in order for it to
be more favorably considered.
Dated: July 22, 1991
. /sl
The Sixth Amendment does not provide
merely that a defense shall be made for the
accused; it grants to the accused personally
the right to make his defense. It is the
accused, not counsel, who must be
"informed of the nature and cause of the
accusation," who must be "confronted with
the witnesses against him," and who must be
accorded "compulsory process for obtaining
witnesses in his favor." Although not stated
in the Amendment in so many words, the
right to self-representation - to make one's
own defense personally
is thus
necessarily implied by the structure of the
Amendment. The right to defend is given
directly to the accused; for it is he who
suffers the consequences if the defense fails.
Arthur H. Lawrence
In pro per - Sui Juris
POINTS and AUTHORITIES
I and II
SIXTH AMENDMENT RIGHTS VIOLATIONS
Contrary to the false "conclusions" of many
inferior courts, the Sixth Amendment rights of self­
representation and assistance of counsel are not
disjunctive, but rather are concurrent rights. The
assistance of counsel provision of the Sixth
Amendment is meant to be available as a defense
tool to supplement the natural right of self­
representation.
For example, Thomas Paine, arguing in
support of the
1776 Pennsylvania
Declaration of Rights, said:
The counsel provision supplements this
design. It speaks of the "assistance" of
counsel, and an assistant, however expert, is
still an assistant. The language and spirit of
the Sixth Amendment contemplates that
counsel, like the other defense tools
guaranteed by the Amendment, shall be an
aid to a willing defendant - not an organ of
the State interposed between an unwilling
defendant and his right to defend himself
personally. To thrust counsel upon the
accused, against his considered wish, thus
violates the logic of the Amendment. In
such a case, counsel is not an assistant, but a
master; and the right to make a defense is
stripped of the personal character upon
which the Amendment insists. It is true that
when a defendant chooses to have a lawyer
manage and present his case, law and
"Either party ... has a natural right to plead
his own cause; this right is consistent with
safety, therefore it is retained; but the parties
may not be able, ... therefore the civil right
of pleading by proxy, that is, by a council, is
an appendage to the natural right [of self­
representation] ...." Thomas Paine on a Bill
of Rights, 1777, reprinted in 1 Schwartz
316.
Faretta v. California, 422 U.S. 806, 830, n.
39.
Contrary to the false, the flawed, and the
tyrannical rulings and conclusions of many inferior
courts, an accused has more constitutionally secured
rights than just a choice of either going it alone
without the assistance of counsel (in order to
maintain his Sixth Amendment right of selfNONTAXPAYERS UNITED NEWSLETTER
13
VOLUME I, ISSUE NO.6
COIDIONLAW COPYRIGHT
tradition may allocate to the counsel the
power to make binding decisions of trial
strategy in many areas. [Citations omitted.]
This allocation can only be justified,
however, by the defendant's consent, at the
outset, to accept counsel as his
An unwanted counsel
representative.
"represents" the defendant only through a
tenuous and unacceptable legal fiction.
Unless the accused has acquiesced in such
representation, the defense presented is not
the defense guaranteed .him .by ·the
Constitution, for, in a very real sense, it is
not his defense.
In order to "justify" their erroneous conclusion
that "the two rights are disjunctive", the federal
appellate courts view the "or" language of the
federal statute, 28 U.S.C. 1654, asJf it merely gives
an accused a choice between going it alone without
counsel (in order to maintain his natural right of
self- representation), or acquiescing to the
appointment of counsel to represent him; thus
allowing court-appointed counsel to become the
master of the case as opposed to being the assistant.
The Sixth Amendment, when naturally read,
thus implies a right of self-representation.
This reading is reinforced by the
Amendment's roots in English legal history
The unwarranted reliance on the "or" language
of 28 U.S.C. 1654 (in order to "justify" forcing an
accused to make a choice between one thing QI
another, but not both) demonstrates that the federal
appellate courts ignore the history of 28 U.S.c.
1654. The origin of28 U.S.c. 1654 is Section 35 of
the Judiciary Act of 1789, 1 Stat. 73, 92, enacted by
the First Congress and signed by President George
Washington one day before the Sixth Amendment
~
was enacted. (See Faretta, supra.. 812-813.)
In all courts of the United States the parties
may plead their own cases personally or by
counseL..
28 US.c. 1654 (in part).
In the long history of British criminal
jurisprudence, there was only one tribunal
that ever adopted a practice of forcing
counsel upon an unwilling defendant in a
criminal proceeding. The tribunal was the
Star Chamber.
Faretta, supra, 819-821.
... in all courts of the United States, the
parties may plead their own causes
personally or by the assistance of ...
counseL..
1 Stat. 73, 92 (in part). (Also see Faretta,
supra, 812-813.)
Thus, both the right of self-representation and
the right of assistance of counsel are rights
guaranteed by the Sixth Amendment. The U.S.
Supreme Court, in Faretta, supra, has clearly
shown that the assistance of counsel provision of
the Sixth Amendment supplements the Sixth
Amendment's design of self-representation. Thus,
these two rights are not disjunctive, as is falsely
claimed in many inferior court decisions, but rather
the two rights are clearly concurrent rights, to be
simultaneously exercised and enjoyed together.
In spite of the fact that the word "assistance" has
been omitted from the present day 28 U.S.C. 1654,
Accused submits that the intentions of George
Washington and the Congress which enacted the
original statute in 1789 is still the substance of the
present day statute, and the Accused in this instant
case challenges any claim to the contrary. Since the
Sixth .Amendment adequately secures the right of
assistance of counsel, the word "assistance" in the
statute became redundant after the enactment of the
Sixth Amendment, and could, therefore, reasonably
be omitted from the statute, at a time when the
statutes were re-codified, without any change in
substance.
-----­
FATALLY FLAWED CONCLUSIONS AND
RULINGS OF INFERIOR COURTS. Granted,
many inferior courts imply that the two rights are
disjunctive. At least one federal appellate court
case expressly, (but erroneously) states that the two
rights are disjunctive. (See Us. v. Halbert, 640
F.2d 1000, 1009 (9th Cir. 1981, and cases cited
therein.) Halbert relies, in part, on Duke v. US.,
255 F.2d 721, 724, n. 3 (9th Cir. 1958), which pre­
dates Faretta, supra.
NONTAXPAYERS UNITED NEWSLETTER
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14
VOLUME I, ISSUE NO.6
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Therefore, the --. California courts are not only
following the erroneous conclusions of the federal
appellate courts, they are indirectly and
unjustifiably relying on a federal statute which, the
Accused submits, is not controlling in California
courts. The fact that 28 U.S.C. 1654 is not
controlling in state courts is indicated by the fact
that the constitutions of 26 states expressly provide
for a defendant to simultaneously exercise both the
right of self-representation .and the right of
assistance of counsel (see Faretta, supra, n. 10, at
-813;;.814); regardless of whatever interpretation of
28 U.S.C. 1654 has been made by federal appellate
courts.
In other words, the intentions of the founding
fathers, as expressed in both 1 Stat. 73, 92 and the
Sixth Amendment (that an accused may plead his
own cause personally or by the assistance of
counsel) is still substantially the same today as it
was in 1789; and,
... an assistant, however expert, is still an
assistant.
Faretta, supra, 820.
~
In this instant case, and over the strenuous
objections of the Accused, -Attorney -Seymour I.
Cohen was appointed by Judge Thomas P. Allen to
"represent" the Accused. Thus, instead of having
the aid of assistance of counsel to be used as a
defense tool, like other defense tools guaranteed by
the Sixth Amendment, "representation by counsel"
was forcibly interposed between the Accused and
his right to defend himself personally, denying the
Accused of both Sixth Amendment rights of
assistance of counsel and self-representation.
Attorney Seymour 1. Cohen, consequently
"represents" the Accused only through a tenuous
and unacceptable legal fiction. (See Faretta, supra,
820-821.) And by the "Star Chamber" tactics of
Judge Thomas P. Allen, the Accused is being
denied two of his Sixth Amendment rights.
Furthermore,
a
proper
and
realistic
interpretation of the Constitution of California
shows that an accused is guaranteed both (the
retention of) the natural right of self-representation
and the right of assistance of counsel.
The defendant in a criminal cause has the
right to a speedy public trial, to compel
attendance of witnesses in the defendant's
behalf, to have the assistance of counsel for
the defendant's defense, to be personally
present with counsel, and to be confronted
with the witnesses against the defendant.
The legislature may provide for the
deposition of a witness in the presence of the
defendant and the defendant's counsel.
ERRORS OF THE CALIFORNIA COURTS.
California courts are indirectly and unjustifiably
also relying on the "or" language of the federal
statute, 28 U.S.C. 1654. For example,
Persons may not twice be put in jeopardy for
the same offense, be compelled in a criminal
cause to be a witness against themselves, or
be deprived of life, liberty, or property
without due process of law.
Constitution ofCalifornia, Article I, Section
15.
The United States Court of Appeals for the
Ninth Circuit has recently unequivocally
refused to find a "right to both self­
representation and the assistance of
counsel," and has held the rights to counsel
and self-representation to be "disjunctive."
(United States v. Halbert (9th Cir. 1981) 640
F.2d. 1000, 1009 (and cases cited therein)
People v. Kurbegovic, 138 Cal.App.3d 731,
758 (Dec. 1982).
As shown by the U.S. Supreme Court in
Faretta, supra, an individual has a natural right of
sellf-representation, and both the Constitution of
California and the Constitution of the United States
expressly guarantee an individual the right of
assistance of counsel. Therefore, no person in
possession of all his faculties can honestly contend
the rights of assistance of counsel and self­
representation are disjunctive.
As shown above, the federal appellate court in
Halbert, supra, relied on the federal appellate court
case of Duke, supra (which pre-dates Faretta), and
both rely on the "or" language of the federal statute,
28 U.S.C. 1654, in order to come to the erroneous
conclusion that the two rights are disjunctive.
NONTAXPAYERS UBITED NEWSLETTER
15
VOLUME I, ISSUE RO. 6
COMMORLAW COPYRIGHT
of Appeals, Second· Appellate District (without
Accused's prior knowledge or approval), Mr. Cohen
asked, at page 8 of said petition, "3. Whether in a ~
state tax evasion prosecution, willfulness is also
disproved by a belief that the tax law itself is
unconstitutional; and 4. Whether in a state tax
evasion prosecution, "willful" requires a subjective
knowledge of the prohibition and accordingly
ignorance of the law is an excuse."
To force Attorney Seymour 1. Cohen upon the
Accused to "represent" the Accused, against the will
of the Accused and over the strenuous objections of
the Accused, as was done in this instant case on
June 25, 1991, is a clear violation of the Accused's
rights under both the Constitution of the United
States and the Constitution of California. Attorney
Seymour 1. Cohen presently "represents" the
Accused only through a tenuous and unacceptable
legal fiction. (See Faretta, supra, at 821.)
Tax evasion is not an issue in Accused's case.
Accused. was charged and convicted for failure to
fik. Mr. Cohen is either purposely intending to
damage the case by making false implications and
raising unrelated issues, or Mr. Cohen is so
incompetent that he does not know the difference
between "tax evasion" and "failure to file" (in spite
of the fact that Mr. Cohen also claims to be a
Certified Public Accountant). Regardless of the
reason, Mr. Cohen is demonstrating that he is not
providing Accused with meaningful and effective
counsel, and is forging ahead with "his" defense,
and not the defense of the Accused.
III
IRRECONCILABLE CONFLICT
WITH ATTORNEY
We think, however, that to compel one
charged with grievous crime to undergo a
trial with the assistance of an attorney with
whom he has become embroiled in
irreconcilable conflict is to deprive him of
the effective assistance of any counsel what
so ever.
Brown v. Craven, 424 F.2d 1166, at 1170
(9th Cir. 1970).
Additionally, Accused's "failure to file" defense
is not based on a belief that the tax laws are
unconstitutional. Accused's defense is based on a
belief that the tax laws do not apply to him. So,
once again, Mr. Cohen raises an unrelated issue, and
demonstrates an apparent ignorance of the issues
raised by the Accused and the defense position
relied upon by the Accused. Mr. Cohen had been
instructed during previous dealings with the
Accused to never state or imply anything to the
effect that Accused's reason for not filing was even
remotely based on any belief that the "tax laws are
unconstitutional". This instruction was triggered by
the fact that in one of the rough drafts regarding the
denial of a Petition for Writ of Error Coram Nobis,
Mr. Cohen had falsely stated that, "Accordingly he
[Accused] says the California State Income Tax is
unconstitutional." This was an inexcusable false
statement, and in view of the recent case of Cheek v.
U.S., 111 S.Ct. 604, of which Mr. Cohen is aware, a
belief that a law is unconstitutional does not
constitute a "good-faith misunderstanding of the
law" defense for a defendant. In the instant case,
the Accused believes that the law does not apply to
him, which has absolutely nothing to do with a
The attached letter from Accused to Attorney
Seymour 1. Cohen, dated 16 July 1991, marked as
"Exhibit" and attached hereto, details much of the
conflict between the Accused and Attorney Cohen.
Said letter details the fact that the Accused does not
trust Mr. Cohen's competence, professionalism, or
ethics. Accused's conflicts with Attorney Cohen are
based in part on the following personal experiences
he has had with this attorney.
INCOMPETENCE. In a previous case, as well
as the present case, the Accused has found
numerous false and/or otherwise improper
statements in both the rough drafts of Mr. Cohen's
legal briefs, as well as in the briefs he has filed "in
These false and/or
behalf' of the Accused.
otherwise improper statements include, but are not
limited, to those described below.
1. In legal briefs, Mr. Cohen has falsely
implied that the Accused has been convicted of "tax
evasion", when in fact the Accused was convicted
of "failure to file tax returns". For example, in a
recent Petition for Writ of Habeas Corpus (service
date 7-10-91), which Mr. Cohen filed in the Court
NONTAXPAYERS UNITED NEWSLETTER
16
VOLUJIE I, ISSUE RO. 6
COMMORLAW COPYRIGHT
~
~.
.---"
belief that a law is unconstitutional.
This
inexcusable false statement by Mr. Cohen could be
very damaging to the Accused in future litigation.
As shown in the attached letter, Accused had Mr.
Cohen delete such false statements from the rough
drafts when Accused was involved in previous
dealings with Mr. Cohen.
Yet, Mr. Cohen
continues to falsely imply that Accused is claiming
the "tax laws", per se, are unconstitutional; all in
direct disregard to Accused's prior instructions.
competent attorney should be able to make a
distinction between an individual who protests a
tax, as opposed to an individual who simply does
not believe the tax laws apply to him. For example,
an individual could protest what he believes is the
unlawful misapplication of the revenue laws against
one who is neither subject to such laws nor liable
for such tax, and still not be protesting any tax. Mr.
Cohen seems to be either unwilling or unable to
make this distinction.
Furthermore, subjective knowledge or _belief
(referred to in Mr. Cohen's questions above) v.
objective knowledge or belief is not an issue in
Accused's case. The issue that Accused would raise
in a Petition for Writ of Habeas Corpus is whether
the legislature can dispense with criminal intent as
an element of the crime regarding "failure to file"
under California Revenue & Taxation Code 19401.
Mr. Cohen is forging ahead as if he were insane, or
a man with a paper brain. At any rate, Mr. Cohen is
forging ahead with "his" defense, and not the
defense of, or with the permission of, the Accused.
He is truly operating as master of the case, and is
thus violating the Accused's right to make his own
defense personally. (See Faretta, supra, at 819.)
Nevertheless, the Accused believes that these
distinctions are extremely important to his defense
in the present case, which includes a possible
reversal of his sentence (which is the purpose of a
competently composed Petition for Writ of Habeas
Corpus), as well as any future litigation. Accused
finds it impossible to work with Attorney Cohen
who obstinately continues to include unnecessary,
and perhaps damaging verbiage into legal
documents ostensibly prepared for the benefit of the
Accused.
4. Mr. Cohen further provides reasons for the
Accused to totally lack confidence in Mr. Cohen's
competency, by virtue of the fact that in the recent
Petition for Writ of Habeas Corpus (service date 7­
10-91), at pages 19-20, Mr. Cohen spent
considerable verbiage discussing "strict rules of
objective reasonability", as....if such rules had been
applied to Accused's case. Of course, "strict rules
of objective reasonability" were never an issue in
Accused's case at all. The issue in Accused's case
(and what should be the primary issue in a
competently composed Petition for Writ of Habeas
Corpus) is whether the "with or without intent"
language of California Revenue & Taxation Code,
Section 19401, which dispenses with criminal intent
as an element of the crime, is constitutional. This
("with or without intent" language of 19401) has
nothing to do with the reasons Accused did not file.
But it does have a great deal to do with the trial
court refusing to allow evidence for the jury to
consider as to Accused's "good-faith belief'
defense, and whether in such a case a jury should be
- allowed to determine if the Accused "willfully"
violated the law. Apparently incompetent, Attorney
Cohen fails to realize that reasonability has
absolutely nothing to do with willful intent.
2. Mr. Cohen has repeatedly been instructed to
not refer to Accused as a "taxpayer", because
Accused believes he [Accused] does not come
within the definition of the term "taxpayer" as it is
strictly and narrowly defined by statute. (See
Economy Plumbing & Heating v. Us., 470 F.2d
585, n. 3 at 590.) Yet, Mr. Cohen continues to refer
to Accused as a "taxpayer", and does so against
Accused's instructions. Referring to Accused as a
"taxpayer", rather than as an individual, does not aid
the Accused's defense one iota, and Accused firmly
believes such reference can harm his defense. At
any rate, Mr. Cohen is obstinately stripping
Accused of the right to present his defense in terms
the Accused would choose to use. Thus, he is
stripping Accused of his right to make his defense
personally. (See Faretta, supra, at 819.)
3. Mr. Cohen has repeatedly been instructed to
not refer to Accused as a "tax protester", because,
and very specifically, Accused has not protested any
tax. Accused simply does not believe that he is
subject to or liable for the tax in question.
NONTAXPAYERS UNITED NEWSLETTER
Any
17
VOLUME I, ISSUE NO.6
COMMONLAW COPYRIGHT
of trust is based, in part, on the events explained
below.
Attorney Cohen should recognize that no matter
how unreasonable or irrational a good-faith belief
is, such good-faith belief is a valid defense if a jury
is to consider whether an accused "willfully"
violated a law. (See Us. v. Roy & Dixie Powell,
90-10060, 9th Cir. 6-13-91.) He should also realize
that whether Accused's good-faith belief was
reasonable or not was never an issue presented to
the jury. He should realize that the trial court jury
was not allowed to hear any evidence at all
regarding Accused's good-faith belief; thus,
reasonability was never an-issue.
1. In
Mr. Cohen's "Forward" for the -'\
"Attachment to Declaration And Order Re Fees"
which he submitted to the Appellate Department of
the Superior Court, Mr. Cohen falsely stated that the
Accused had demanded that Mr. Cohen "join his
particular group with regard to state income taxes,
" This statement by Mr. Cohen is not only
ludicrous, it is a bald-faced lie. Perhaps this attempt
to impress J4.e Court as to the "terribly difficult
time" he had in dealing with the Accused is Mr.
Cohen's way of collecting larger fees from the
courts.
Accused cannot be certain whether Attorney
Seymour I. Cohen is purposely obfuscating the
issues of Accused's case or whether the obfuscation
is due to incompetence of one form or another. But
Accused is certain that he has no faith in Attorney
Seymour 1. Cohen, and does not want him involved
in the case in any capacity whatsoever.
Nevertheless, Mr. Cohen has no honest reason
to make such a statement. He knows that no such
demands were made. Accused's case would not be
enhanced one iota as a result of any affiliation Mr.
Cohen would have with whatever "group" he has
created out of the figments of his imagination. And
even if Accused had a "group", he certainly would
not want the likes of Attorney Cohen to be even
remotely associated with it, let alone apply for
membership. Mr. Cohen's ludicrous and false ~
statement does, however, provide Accused with one
more reason not to trust Mr. Cohen.
5. Attorney Cohen further demonstrated his
incompetence at a hearing before the Appellate
Department of the Superior Court. His presentation
was ill-prepared, off-point, wordy to the point of
exasperation of the Appellate Court judges, all of
which resulted in several admonitions from the
judges to get to the point or stop talking. (See
attached letter, page 3.)
2. In the prior association with Mr. Cohen,
Accused did demand that Mr. Cohen not submit any
documents with Accused's name on them without
Accused's prior knowledge and consent. Again,
after Judge Allen summarily forced Mr. Cohen on
the Accused to IU>resent him, and over the
objections of the Accused, the Accused then again
demanded that Mr. Cohen not submit any
documents with Accused's name on them without
Accused's prior knowledge and consent. Mr. Cohen
agreed to this demand. Yet, on July 10, 1991, Mr.
Cohen filed a Habeas Corpus/Request for Stay
without the prior knowledge or consent of the
Accused. This breach of trust, alone, affirms
Accused's belief that Mr. Cohen is ethically and
professionally incapable of providing meaningful
and effective counsel.
6. Accused has been unable to carry on any
intelligent and beneficial discussion with Mr. Cohen
regarding various defenses, which is mainly the
result of the fact that Mr. Cohen provides non­
answers to the Accused's carefully worded
questions. Mr. Cohen was either unwilling or
unable to answer even the most basic questions
regarding the so-called "income" tax. (See attached
letter, pages 1-3.) Without being able to establish a
solid foundation as to the basic issues, the Accused
finds it impossible to discuss the more intricate
defense issues with Mr. Cohen.
DISHONESTY. Accused believes Mr. Cohen is
extremely dishonest and concludes that this lack of
honesty is reprehensible, and further concludes that
under such circumstance it is impossible for the
Accused have any faith in Mr. Cohen or obtain
effective counsel from Mr. Cohen. Accused's lack
NONTAXPAYERS UNITED NEWSLETTER
Accused further finds that said Habeas
Corpus/Request for Stay is a poorly composed
document, with the important issues obfuscated and
18
VOLUME I, ISSUE RO. 6
COMMORLAW COPYRIGHT
~
~
what was Judge Allen's excuse for proceeding as if
he had a perfect right to force Cohen upon the
defendant?
convoluted with unrelated, off-point, misleading,
and otherwise unnecessary issues and comments.
Accused believes that such poorly composed
pleadings could be damaging to this case, and
perhaps even carry over to future litigation. It
should be noted that said Habeas Corpus/Request
for Stay was subsequently denied by the Court of
Appeals without comment.
Judge Allen referred to a court appearance of about
a year ago when a public defender refused to
provide Art with assistance of counsel. The public
defender had presented a California case (Chaleff v.
Superior Court for Los Angeles County, 69
Cal.App.3d 728 (1977)) which supposedly "proved"
that a public defender did not have to provide
assistance of counsel, and therefore, the public
defender would only ~resent the accused. With
that reference as his supposed "legal basis", Judge
Allen proceeded to deny Art his dual rights; self­
representation and assistance of counsel.
Accused concludes that Attorney Seymour I.
Cohen, in his own way, is more of an adversary
than the prosecution in this~ case.__ . Ac~used also
concludes that his differences with Mr. Cohen are
truly irreconcilable and does not want Mr. Cohen
involved in his case in any capacity whatsoever. In
violation of Accused's Sixth Amendment rights, Mr.
Cohen "represents" the Accused only through a
tenuous and unacceptable legal fiction.
(See
Faretta, supra,_at 821.)
The flaw in Allen's "proof' is that the Chaleff case
is off point and involves an entirely different fact
situation.
Public defender Chaleff had been
appointed as advisory counsel for a John L. Miller
(People v. Miller, Los Angeles Superior Court No.
AOl6192 (1975)). Miller had admitted to killing his
parents, did not want to present a defense, would
not accept any defense strategy that Chaleff thought
available, was satisfied with his subsequent
conviction and death sentence, did not want any
appealable issues, and just wanted to get the whole
thing over. Chaleff wanted off the case because he
could not do his job properly under these
circumstance.
SUMMARY
~
For all the forgoing reasons, Accused requests
that this Court replace court-appointed attorney,
Seymour I. Cohen, with counsel who will, in truth,
provide meaningful and effective assistance of
counsel pursuant to the Sixth Amendment so
Accused can exercise his Sixth Amendment right of
self-representation.
Additionally, Accused requests this Court to
appoint assistance of counsel to aid the Accused in
presenting this motion in order for it to be more
favorably considered.
The Chaleff case certainly does not involve the
same fact situation as does Art's case. Art wants to
present every valid defense available, and wants to
have assistance of counsel to aid him in preparing
these defenses. He wants assistance of counsel, not
"advisory counsel" (whatever that might be
construed to be). Yet on the pretext that the Chaleff
case justifies his actions, Allen continues to deny
AIt his dual rights.
A denial of this motion to replace Seymour I.
Cohen with counsel who will protect Accused's
rights will be a knowing and intentional violation of
the Accused's Sixth Amendment rights.
Respectfully submitted,
Dated: July 22, 1991
sis
Even Attorney Cohen presented a case in court
(US. v. West, 877 F.2d 281) which supposedly
proved that Art had "lost" his Faretta rights. This
case also did not contain the same fact situation.
Arthur H. Lawrence
In pro per - Sui Juris
~
Did Judge Allen and Attorney Cohen proceed in
spite of the contents of this "scholarly written
memorandum of law"? You bet they did. And
NONTAXPAYERS UNITED NEWSLETTER
I believe that both the judge and the attorney are
concertedly depriving Art of his dual rights. (See
Counsel, page 20.)
19
VOLUME I, ISSUE NO.6
COMMONLAW COPYRIGHT
NONTAXPAYERS~TEDLEGALDEFENSESUPPORTPROGRAM
For information regarding NONTAXPAYERS UNITED LEGAL DEFENSE SUPPORT PROGRAM, contact ~
Otto Skinner, P.O. Box 6609, San Pedro, CA 90734.
*****
Books available:
THE BEST KEPT SECRET (1996 REVISED EDITION)
$24.95
IF YOU ARE THE DEFENDANT
Supplement to The Best Kept Secret
$24.95
Add $5.00 (flat rate for all orders) for postage and handling.
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$35.00
NONTAXPAYERS UNITED NEWSLETTER
Volumes I, II, III, and IV are available for $35.00 per volume.
I recommend you start with Volume I. The newsletters are
written in an ongoing format and run from July-August, 1990
through May-June, 1994.
NONTAXPAYERS UNITED NEWSLETTER
c/o Otto Skinner
P.O. Box 6609
San Pedro, CA 90734
(310) 515 33@124hrs 310835-3770
I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I
Counsel, from page 19
counsel" or "standby counsel". He only understood
what the word "assistance" meant, and he wanted
assistance of counsel as provide by the 6th Amend.
After a while the judge smiled and said he have his
assistance of counsel, and appointed a public
defender to assist.
Art is again incarcerated and needs some funds to
obtain certain court transcripts. The transcripts are
the only means he has of proving the flawed claims
of the public defender, his court appointed
"counsel" and the judge. He does not want to let
this issue rest. (If you can help,
)
Bob G. from up north tells me the judge appointed a
public defender to help him present the issue of his
refusal to provide a financial statement as a
condition of getting court-appointed counsel. In
other words, he got assistance of counsel to aid him
in presenting his issue regarding the conditions
imposed upon him to get assistance of counsel in
the first place. Bob also tells me the public
defender is very excited about the counsel issue and
is truly providing him with assistance.
It must be remembered that the State of California
went for a long time claiming an individual did not
have the right of self-representation; that is until
Faretta came along. It will probably take the U.S.
Supreme Court to set the California courts and
federal appellate courts straight.
It must also be remembered that the older a case is,
the harder it is to untangle. The sooner one jumps
on a solid issue, the better. I am told by Ron E. in a
Kansas City case that he just kept telling the judge
that he did not understand anything about "advisory
NONTAXPAYERS UNITED NEWSLETTER
STAY TUNED
THINGS ARE LOOKING UP
20
VOLUME I, ISSUE NO.6
COMMONLAW COPYRIGHf