Case No.: 08-2102
UNITED STATES CIRCUIT COURT
FOR THE FOURTH CIRCUIT
An Appeal from the District Court for the
Western District of Virginia,
District Court Case No.: MC 00011-nkm-bwc
Thomas T. ----------,
Appellant’s Reply to Appellee’s Informal Brief
Thomas T. -------
Appellant, In Propria Persona
UNITED STATES CIRCUIT COURT
FOR THE FOURTH CIRCUIT
Thomas T. --------,
CASE NO.: 08-2102
Appellant’s Reply to Appellee’s Informal Brief
Appellant’s Reply to Appellee’s Informal Brief
This appeal is not based on the statutory arguments regarding income tax that were presented in the lower court in an effort to show to that court the exact reason why the actual language of the statutes so carefully implement a distinct, separate, and limited enforcement authority for employees of the IRS to possess under the different Subtitles, regarding the proper lawful use of the Summons authority and powers within each Subtitle. This appeal is based primarily:
<![if !supportLists]>1. <![endif]>on the improper actions of the Magistrate in improperly and unlawfully usurping the authority of the District Court to erroneously issue a final Order that he was not authorized to issue,
<![if !supportLists]>2. <![endif]>on the improper actions of the Magistrate in unlawfully altering the audio transcription files of the hearing by removing prejudicial statements plainly and loudly made by the Magistrate to the Appellant during the hearing just previous to ruling,
<![if !supportLists]>3. <![endif]>on the lack of the “appropriate process” required by statute, necessary for the District Court to possess jurisdiction to uphold the Magistrate’s actions,
<![if !supportLists]>4. <![endif]>on the wrongful invocation of the Powell case by the Magistrate as precedent to settle the matter without any additional consideration by the Magistrate for the 5th Amendment rights of the Appellant,
<![if !supportLists]>5. <![endif]>on the Appellant’s right, under the mandates of due process, to have the opportunity to correct, by the testimony of eye-witnesses to the event, the transcript of the hearing, and to cross-examine under Oath the witnesses against him (Revenue Agent Gayle Hunter). The Deputy Clerk of the District Court, Michelle Bottiglieri, as well as other easily identifiable witnesses, attorneys, government employees, and individual citizens, can all be called as an eye-witness to testify as to the accuracy of the allegation that material has been removed from the transcript of the hearing. She (Michelle) was the operator of the audio recording equipment in court for the hearing that day. Until a hearing is held, with testimony by eyewitnesses to the event, who are allowed to testify at the hearing to impugn the accuracy of the transcript, how is any transcription error ever to be identified and corrected? Or, do the courts just not care any more whether or not the transcriptions of its hearings are accurate? And routinely allow the judges to remove what-ever spoken text they choose or desire to remove from the transcript of the hearing? Without allowing a hearing, how can any error ever be corrected if the transcripts are merely assumed to be prima facie and accurate simply because they exist, and therefore cannot be challenged?
If the Appellee truly does not understand that Section 1 does not constitute a nonapportioned direct tax, but rather, was upheld as an indirect tax by the Supreme Court, in both the Brushaber v Union Pacific R.R. Co., 240 U.S. 1, and the Stanton v. Baltic Mining, 240 US 103 decisions in 1916;
If the Appellee
truly does not understand that
Section 1 is laid as part of the “income
tax provisions of the tariff act
If the Appellee truly does not know that a tariff is an indirect tax in the form of an impost;
If the Appellee truly does not understand, as stated by the Supreme Court in the Brushaber decision, that: “2. The act provides for collecting the tax at the source; that is, makes it the duty of corporations, etc.,”, who, acting as tax collectors in the form of Withholding Agents defined at 26 U.S.C. Sec. 7701(a)(16), collect tax by withholding it from subject persons;
If the Appellee truly does not understand that it is made the legal duty of the Withholding Agents “to retain and pay the sum of the tax”, by withholding money as tax from payments made to persons subject to the tariff under the provisions of §§ 1441, 1442 and 1443 as identified in § 7701(a)(16);
If the Appellee truly does not understand that it is the Withholding Agents who are made liable under 26 U.S.C. Section 1461 for the payment of only the income tax that they have collected from other persons by withholding;
If the Appellee truly does not understand that there is no other code section in Subtitle A that makes any person liable for the payment of the income tax because the tax is not direct, but is imposed as an indirect tax and collected indirectly;
If the Appellee truly does not understand that while Section 1 imposes a tax, it does not state how the tax is to be collected because that is provided by the definition of the authority of the Withholding Agent defined at § 7701(a)(16);
If the Appellee truly does not understand that Section 1 does not state who is to be liable for the payment of the income tax, because that is done in Section 1461;
If the Appellee truly does not understand that Congress took its cues in writing this legislation, on how to implement the income tax as a legitimate and constitutional indirect tax, directly from the Supreme Court in the Pollock v. Farmer’s Loan & Trust Co., 157 U.S. 429, (1895) decision at page 558, where the court wrote that “Ordinarily, all taxes paid primarily by persons who can shift the burden upon someone else, or who are under no compulsion to pay them, are considered indirect taxes;”;
If the Appellee truly does not understand that under the written provisions of the statutes as provided by Congress with this Pollock decision in mind, the Withholding Agents are the true tax payors, who, under the indirect scheme of the enacting legislation, are allowed through the withholding of tax to shift the burden of paying the tariff (tax) from themselves, to the intended subject taxpayers, those non-resident foreign persons properly subjected to the withholding of income tax from their pay under §§ 1441, 1442 and 1443;
If the Appellee truly does not understand that because there are no provisions in any other statute in all of Subtitle A authorizing the withholding of income tax from any other persons besides the non-resident aliens and foreign corporations identified in §§ 1441, 1442 and 1443, that, then there are no other persons defined in the statutes who are made subject by law to the collection of the tariff (tax);
If the Appellee truly does not understand that this legislatively enacted scheme of collection at the source, wherein tax collectors in the form of Withholding Agents collect income tax from subject foreign persons by withholding tax from all forms of payments identified in Section 1441(b), and then pay it over to the United States Treasury as payment of the tariff imposed on individuals in Section 1;
If the Appellee truly does not understand that all of these facts are clearly identified by the Supreme Court and still recognizable in the plain and simple provisions of the statutes, which clearly implement an indirect tax that is collected indirectly by third party Withholding Agents, both in 1916 when the enacting legislation was originally tested, and now in the year 2008 under the same unchanged statutory provisions that have existed since then;
If the Appellee truly does not understand any of these things, as it would appear from their arguments they do not, then perhaps the time has finally come for this Court to entertain oral arguments before the entire Fourth Circuit Court bench, en banc, to address the issue of whether the income tax is properly recognized by the courts as an INDIRECT tax under Article 1 Section 8, Clause 1 (in the form of a tariff), as it was recognized and stated to be by the Supreme Court in their honest and dejure assessment of the enacting legislation in 1916 in the controlling Brushaber and Stanton decisions, or if, as the government (Appellee) now erroneously argues, the income tax is a direct tax under the 16th Amendment, as it is now enforced by the IRS in its de-facto collection practices.
REPLY RESPONSE ARGUMENTS
JURISDICTION OF THE DISTRICT COURT
<![if !supportLists]>1. <![endif]>The statutory jurisdiction of the District Courts to enforce internal revenue Summons is not simply given to the court by the actual language of Title 26 U.S.C. Sections 7402(b) and 7604(a), as is repeatedly erroneously argued by the United States (as Appellee) in its Informal Brief. Title 26 U.S.C. Section 7604(a) clearly states:
§ 7604. Enforcement of summons
(a) Jurisdiction of district court
If any person is summoned under the
internal revenue laws to appear, to testify, or to produce books, papers,
records, or other data, the
<![if !supportLists]>2. <![endif]>And 26 U.S.C. Section 7402(b) also clearly states:
Jurisdiction of district courts
(b) To enforce summons
any person is summoned under the internal revenue laws to appear, to testify,
or to produce books, papers, or other data,
the district court of the
<![if !supportLists]>3. <![endif]>These statutes both make it absolutely clear that the jurisdiction of the District Court over the enforcement of an internal revenue Summons is NOT SIMPLY GRANTED as has been erroneously argued by the government, BUT MUST BE established by the accomplishment, and a demonstrated showing of the statutorily specified, and required, “appropriate process”. Both of these statutes invoke the same requirement of “appropriate process”, to be demonstrated.
<![if !supportLists]>4. <![endif]>That requirement of “appropriate process” cannot be accomplished unless all of the specific requirements of the controlling statutes regarding the issuance, service, and enforcement of a Summons are meticulously followed and obeyed by the United States, its agents and officers (the I.R.S.), and the Courts, throughout the Summons enforcement process.
<![if !supportLists]>5. <![endif]>In this matter, those requirements have not been met. In the instant matter the Summons has not been served by a person who is lawfully authorized by the statutes to serve a Summons enforcing or investigating alleged violations of Subtitle A provisions, which it has been averred by the Justice Department attorneys is the only Subtitle relevant to this particular dispute.
<![if !supportLists]>6. <![endif]>The true legal authority of Internal Revenue Service Agents, like Revenue Agent Hunter, to serve Internal Revenue Summons is clearly specified and spelled out in Title 26 U.S.C. Sec. 7608 (a).
§ 7608. Authority of internal revenue enforcement officers.
(a) Enforcement of subtitle E and other laws pertaining to liquor, tobacco, and firearms
Any investigator, agent, or other internal revenue officer by whatever term designated, whom the Secretary charges with the duty of enforcing any of the criminal, seizure, or forfeiture provisions of subtitle E or of any other law of the United States pertaining to the commodities subject to tax under such subtitle for the enforcement of which the Secretary is responsible may –
<![if !supportLists]>(1) <![endif]>carry firearms;
<![if !supportLists]>(2) <![endif]>execute and serve search warrants and arrest warrants, and serve subpoenas and summonses issued under authority of the United States; (emphasis added)
As an “agent”, Revenue Agent Hunter is only authorized by this statute to serve a Summons under Subtitle E investigations, enforcing the Subtitle E laws pertaining to liquor, tobacco, and firearms, commodities subject to tax.
<![if !supportLists]>7. <![endif]>The government may not like the limitation placed on the Revenue Agents by this statute; to only serve a Summons under Subtitle E, but the language of the statute is simple, and its command is clear. The courts have repeatedly, consistently, addressed the issue of statutory construction:
"In deciding a
question of statutory construction, we begin of course with the language of the statute." Demarest
v. Manspeaker, 498
"When the words
of a statute are unambiguous, the first canon of statutory construction--that courts must presume
that a legislature says in a statute
what it means and means in a statute what it says, there is also the last,
and judicial inquiry is complete." Connecticut National Bank v.
a federal statute, it is presumable that Congress legislates with knowledge of
the United States
Supreme Court's basic rules of statutory construction." McNary
v Haitian Refugee Center, 498
"We are not at liberty to construe any statute so as to deny effect to any part of its language. It is a cardinal rule of statutory construction that significance and effect shall, if possible, be accorded to every word. As early as in Bacon's Abridgment, § 2, it was said that 'a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word, shall be superfluous, void, or insignificant.' This rule has been repeated innumerable times." Justice Strong, United States v. Lexington Mill & E. Co., 232 US 399, pp. 409. (1914)
<![if !supportLists]>8. <![endif]>Conversely, the authority to serve Summons issued under Subtitle A of Title 26, which would be the applicable and relevant authority to the instant matter, is specified in Section 7608 (b). It plainly states:
§ 7608. Authority of
internal revenue enforcement officers.
(b) Enforcement of laws relating to internal revenue other than subtitle E
(1) Any criminal investigator of the Intelligence Division of the Internal Revenue Service whom the Secretary charges with the duty of enforcing any of the criminal provisions of the internal revenue laws, any other criminal provisions of law relating to internal revenue for the enforcement of which the Secretary is responsible, or any other law for which the Secretary has delegated investigatory authority to the Internal Revenue Service, is, in the performance of his duties, authorized to perform the functions described in paragraph (2).
(2) The functions authorized under this subsection to be performed by an officer referred to in paragraph (1) are –
(A) to execute and serve search warrants and
arrest warrants, and serve subpoenas and summonses issued
under authority of the United States;
<![if !supportLists]>9. <![endif]>Again, the government may not like the written requirement to have a “criminal investigator”, rather than any employee, like an Agent or an Officer, serve the Summons under Subtitle A, but that is what the statute clearly commands, and again, the courts have repeatedly affirmed the basic rules of statutory construction regarding the plain words written in a statute:
"As in all
cases involving statutory construction, "our starting point must be the language employed
by Congress," Reiter v Sonotone Corp., 442
clearly expressed legislative intention to the contrary, that language must ordinarily
be regarded as conclusive." Consumer Product Safety
Comm'n v GTE Sylvania, Inc., 447
"When the terms
of a statute are unambiguous, judicial inquiry is complete except in rare and
exceptional circumstances." Freytag v. Commissioner, 501
"In a statutory construction case, the beginning point must be the language of the statute, and when a statute speaks with clarity to an issue, judicial inquiry into the statute's meaning--in all but the most extraordinary circumstance--is finished; courts must give effect to the clear meaning of statutes as written."
Estate of Cowart
v. Nicklos Drilling
States Supreme Court cannot supply what
Congress has studiously omitted in a statute." Federal
Trade Com. v Simplicity Pattern Co., 360
<![if !supportLists]>10. <![endif]> Clearly and plainly, 26 U.S.C. Sec. 7608(b) specifies that only a criminal investigator of the Intelligence Division may serve a Summons outside of Subtitle E, i.e.: under Subtitle A, as in the instant matter. Agent Hunter is not a criminal investigator of the Intelligence Division and has therefore violated 26 U.S.C. Sec. 7608(b) by serving a Summons that only a criminal investigator is authorized to serve. Not surprisingly, since the law is consistent, she has also violated 26 U.S.C. Sec. 7608(a) by exceeding her true statutory authority as a Revenue Agent in serving a Summons that is not issued as part of a Subtitle E investigation or enforcement action.
<![if !supportLists]>11. <![endif]> The Authority that is actually possessed by Agent Hunter is that specified in Title 26 U.S.C. Sec. 7608(a), supra, to only serve a Summons regarding the “criminal, seizure, or forfeiture provisions of subtitle E” or “pertaining to the commodities subject to tax”.
"This fact only
underscores our duty to refrain from
reading a phrase into the statute when Congress has left it out. "
'[W]here Congress includes particular language in one section of a statute but omits it in another ..., it is generally presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.' " Russello v United States, 464
<![if !supportLists]>12. <![endif]>Subtitle E is not the stated basis for this investigation. Subtitle A is the averred basis for this investigation, nor does this action in any way pertain to “liquor, tobacco or firearms” or any other “commodities subject to tax” as required by the statute.
<![if !supportLists]>13. <![endif]> The Court should very carefully note the very specific distinction between the two very different authorities to serve Summons that is established in the written law for the enforcement of the two different subtitles, A and E under the true provisions of the statutes.
<![if !supportLists]>14. <![endif]>The limited authority that Agent Hunter actually possesses as a Revenue Officer under 26 U.S.C. Sec. 7608(a), is to serve summons related to the enforcement of Subtitle E provisions. That limited authority has been abused in the instant matter, being improperly used to serve a Summons concerning the investigation of Subtitle A provisions, not Subtitle E as required by the specific language of the code section, 7608(a).
<![if !supportLists]>15. <![endif]> The Justice Department has averred that Subtitle E is not a part of this action, but it was this Subtitle E authority, 26 U.S.C. Sec. 7608(a), that has been relied upon in this matter to have the Revenue Officer, instead of a “criminal investigator of the Intelligence Division”, improperly and unlawfully serve the Subtitle A Summons, by misusing her Subtitle E authority.
point for interpreting a statute is the language of the statute itself; absent
a clearly expressed legislative intention to the contrary, that language must
ordinarily be regarded as conclusive." Product
Safety Comm'n v. GTE
<![if !supportLists]>16. <![endif]> Therefore the “appropriate process” necessary for the Court to have jurisdiction under 26 U.S.C. Sec. 7604(a) and 26 U.S.C. Sec. 7402(b) has been violated and poisoned by the misfeasance of the Revenue Agent, who wrongfully misused her Subtitle E – Alcohol, Tobacco & Firearms authority to improperly serve a summons regarding a Subtitle A enforcement investigation.
<![if !supportLists]>17. <![endif]> On this matter, the government’s only reply is to argue judicial legislation. That is, the Appellee argues that previously issued opinions of the lower courts, i.e. United States v. Crum, 288 F.3d 332 334 (7th Circuit), have changed the written laws that are explicitly cited and relied upon by the Appellant, and that those circuit opinions should be relied on by the court in place of the written law, as the authority for allowing a Revenue Agent like Agent Hunter to serve a Summons under Subtitle A. The government should know better than to argue judicial legislation. It is erroneous, and in fact absurd to argue, that by virtue of the opinions of their decisions, the circuit court judges change the written law. No judge or circuit court decision may legitimately replace the written law, as, under the Constitution, courts do not write law, Congress does. Nor may the courts expand by opinion the clearly delineated limits of power and authority that are specified in the statutes. Any opinion that attempts to do so is obviously both erroneous and improper.
"...courts do not resort to legislative history to cloud a statutory text that is clear"
that this can be done as matter of law we deem to be pure judicial legislation.
We find no warrant for it in the Constitution or in the powers conferred upon this
court. It is true the non action of Congress may occasion a temporary
inconvenience; but it does not follow that courts of justice are authorized to
remedy it by inverting the ordinary meaning of words.” DeLima v. Bidwell, 182
<![if !supportLists]>18. <![endif]> The process of the Court is abused by the Revenue Agent’s misfeasance and blatant misuse of the statutory powers, and any hope of establishing the “appropriate process” that could establish jurisdiction for the District Court is destroyed. The lawful jurisdiction of these Courts to enforce the Magistrate’s improper Order after entertaining objections, as was erroneously done, was invalidated by this inappropriate process, and jurisdiction is now beyond reach of the Courts because there can be no proper showing of statutory authority for the issuance and service of this Summons under 7608(b), as required by law to establish “appropriate process” under 7604(a) and 7402(b) for jurisdiction of the district court to exist.
<![if !supportLists]>19. <![endif]> Jurisdiction of the District Court to enforce an internal revenue Summons can only be established by “appropriate process” under 26 U.S.C. Sec. 7604(a) and 26 U.S.C. Sec. 7402(b). “Appropriate process” cannot be established in this case because a “criminal investigator of the Intelligence Division” did not serve the Subtitle A Summons as required under 26 U.S.C. Sec. 7608(b)(1). “Appropriate process” has been poisoned because the authority of Revenue Agent Gayle Hunter to serve summons under Subtitle E was improperly used in the instant matter to wrongfully and improperly serve a Summons related to Subtitle A income tax. Agent Hunter does not possess the authority necessary under 26 U.S.C. Sec. 7608(b) to serve Subtitle A Summons because she is not a “criminal investigator of the Intelligence Division”.
<![if !supportLists]>20. <![endif]> Agent Hunter cannot misuse the authority of 26 U.S.C. Sec. 7608(a) – to serve a Summons under Subtitle E, to accomplish an end that is not authorized by Sec. 7608(a), and that is also not authorized under Sec. 7608(b) – i.e.: the service of a Subtitle A Summons by a Revenue Agent rather than by a criminal investigator.
"The starting point in any endeavor to construe a Statute is always the words of the Statute itself; unless Congress has clearly indicated that its intentions are contrary to the words it employed in the Statute, this is the ending point of interpretation." Fuller v. United States 615 F. Supp. 1054 (D.C. Cal 1985) , West’s Key 188 quoting Richards v. United States 369 US 1, 9, 82 S. Ct. 585, 590, 7 L.Ed. 2d 492 (1962)
<![endif]> Title 26 U.S.C. Sec. 7608(b) controls and
limits the enforcement authority of the
<![if !supportLists]>22. <![endif]> The “appropriate process” required under 26 U.S.C. Sec. 7604(a) and 26 U.S.C. Sec. 7402(b) for the District Court to obtain jurisdiction in this matter has not been observed and is not present or intact. In applying for enforcement of this improperly issued and served Summons, the process of the court is severely abused.
<![if !supportLists]>23. <![endif]> The Magistrate himself further invalidates the “appropriate process” required for the District Court to hold jurisdiction over these maters by failing to provide the pro se Appellant with the required Notice of the pro se Appellant’s rights to object within 10 days to the Magistrate’s decision, see Wells v. Shriners Hospital, 109 F.3d 198, 200-201 (4th Cir. 1997), and/or the consequences of failing to do so, see Wright v. Collins, 766 F.2d 841, 846-847 (4th Cir. 1985). Providing Notice of these rights is a well known and long established essential part of the necessary “appropriate process” that is required of the district court when dealing with pro se litigants. Providing these Notices was part of the necessary “appropriate process” required in order for the court to subsequently hold lawful jurisdiction over this matter. Failing to provide these required Notices to the pro se litigant, invalidated the “appropriate process” necessary for the district court to hold further jurisdiction.
<![if !supportLists]>24. <![endif]> The Magistrate himself further invalidates the “appropriate process” required for the District Court to hold jurisdiction by issuing an unauthorized and improper Order on August 23rd, instead of properly issuing a “proposed findings of fact and a proposed disposition” as required by Title 28 Sec. 636(b)(1)(B) and (C). The Magistrate himself failed to comply with this required “appropriate process” by exceeding his statutory authority to issue a report, and usurping the authority of the district court by issuing a purportedly final Order of the court, that was in fact enforced by the Magistrate as though it were a legitimate Order of the district court, without oversight or authoritative review by the court before enforcement was allowed to proceed, and consequently invalidated the District Court’s jurisdiction to proceed further with upholding the enforcement of the Magistrate’s improper Order.
<![if !supportLists]>25. <![endif]> The Magistrate himself, by usurping the authority of the District Court and issuing an improper and unauthorized Order, invalidated the required “appropriate process” from which the jurisdiction of the District Court would have been lawfully derived to further proceed with actions to enforce the Summons.
<![if !supportLists]>26. <![endif]> As a consequence, the District Court lost all of its jurisdiction in this matter to affirm, uphold, enforce, or entertain objections to the August 23rd Order of the Magistrate, or to proceed any further with any enforcement of the Summons, and should have recognized the improper nature of that Order on August 23rd and the inappropriate process that had occurred regarding it.
<![if !supportLists]>27. <![endif]> The provisions of these statutes are simple and clear, comprised of language without ambiguity or conflict. The laws simply mean what the words in them say. The courts cannot legitimately alter or expand their straight-forward application. The following U.S. Supreme Court cases below regarding statutory construction, clearly reveal this fact:
"Words used in the statute are to be given their proper signification and effect."
Washington Market Co. v. Hoffman, 101
"It is not a function of the United States Supreme Court to sit as a super-legislature and create statutory distinctions where none were intended."
American Tobacco Co. v Patterson, 456
construction of a statute by those charged with its execution should be followed
unless there are compelling indications that it is wrong, especially when
Congress has refused to alter the administrative construction, and such
deference is particularly appropriate where an agency's interpretation involves
issues of considerable public controversy and Congress has not acted to correct
any misperception of its statutory objectives." CBS, Inc. v FCC, 453
LEGISLATIVE HISTORY & CASE LAW
<![if !supportLists]>28. <![endif]> Legislative history and case law should not be used to overturn the specific written language of a statute, nor do they change the letter of the law written in a clear and unambiguous provision of the statutes, but, should only be resorted to in order to resolve any apparent ambiguity within the words of a law.
"(T)he court's task is to determine whether the language the
legislators actually enacted has a plain,
unambiguous meaning." Beecham v.
behind the plain language of a statute in search of a possibly contrary
congressional intent is "a step to be taken cautiously" even under
the best of circumstances." Piper v. Chris-Craft
Industries, Inc., 430
POWELL AS ERRONEOUS PRECEDENT
<![if !supportLists]>29. <![endif]> Powell v. United States was not the proper case for the Magistrate to adopt and apply as precedent to settle this matter, because Powell is an inappropriate and improper decision to apply to the circumstances present in this action. Powell was a decision taken through the absence of consideration for any Fifth Amendment rights of the parties involved in that dispute, because that case involved the compelled production of a corporation’s books and records, not an individual citizen’s.
<![if !supportLists]>30. <![endif]> In Powell, the court did not consider, and did not need to consider, any Fifth Amendment rights of the party whose books and records were being compelled to be produced for inspection, because it was a corporation, William Penn Laundry, Inc., that under Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538 (1911) did not possess any 5th Amendment right to a protection from self-incrimination.
<![if !supportLists]>31. <![endif]> In Powell the court properly ignored the issue of the Fifth Amendment Rights against self incrimination, and properly did not need to take those Rights into consideration in taking its decision, because corporations don’t possess a Fifth Amendment Right to any protection from self-incrimination, and this has been recognized by the courts as a legal fact since that 1911 Wilson decision.
<![if !supportLists]>32. <![endif]> However, in the instant matter, it is a citizen’s personal records that were sought to be compelled for production, not a corporation’s. Because this matter involves the compelled production of books and records of a citizen, not a corporation, it was necessary for the Court to address and assess the impact, or potential impact, of that compelled production on the citizen’s Fifth Amendment rights against self-incrimination. The Magistrate refused to even consider this possibility, and improperly avoided doing so by invoking the corporate Powell decision, where those 5th Amendment rights were never considered because they did not exist to be considered in that case. Effectively improperly circumventing all consideration for the Appellant’s 5th Amendment right in the instant matter.
<![if !supportLists]>33. <![endif]> By invoking the Powell corporate decision to decide this matter, the Magistrate improperly neglected and erroneously avoided addressing and dealing with any of the issues impacting, or potentially impacting, the fifth Amendment right of the Appellant as a citizen, that were properly raised beforehand as issues. The issue is not whether 5th Amendment rights are or would be deemed by the court to be superior to the government interests in discovering tax liability, but whether or not the Court erred in ruling after refusing to even consider that issue and possibility, and refusing to consider its potential impact on the constitutional rights of the Appellant.
<![if !supportLists]>34. <![endif]>It is entirely improper to use that corporate decision, where the corporation does not possess any Fifth Amendment right to a protection from self-incrimination to be considered, to control the actions, property, books and records, and compel the testimony of an individual, in circumstances where his or her Fifth Amendment rights do exist, are indeed applicable, and demanded addressing and consideration for the impact to them by the events in process. Instead of addressing and taking into consideration the impact of enforcement of the Summons on those rights, the Magistrate improperly Ordered Appellant to give up those rights or he would be indeterminately imprisoned.
<![if !supportLists]>35. <![endif]> The government has averred that the allegations being investigated are potentially criminal allegations that carry the possibility of criminal charges being filed against the Appellant as a result of the testimony, information, books, and records that the Appellant has been wrongfully forced to make and turn over to the Revenue Agent, under actual threat from the Magistrate of indeterminate imprisonment.
<![if !supportLists]>36. <![endif]> Protection from compulsory testimony designed to implicate an individual in a crime, has been secured through the Fifth Amendment and has been one of the most sacred principles known to American jurisprudence. This principle of the Fifth Amendment protection from compulsory testimony, absent a grant of immunity, has seen no erosion in its application since first expounded and requires but few citations to support it; see Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370 (1906), Blau v. United States, 340 U.S. 159, 71 S.Ct. 223 (1950), and Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814 (1951).
<![if !supportLists]>37. <![endif]> The question of Fifth Amendment protection for the books, records and personal documents of a witness who may be implicated in a crime was first considered in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524 (1886), where the Supreme Court expanded Fifth Amendment protection against compulsory testimony to include the production of books and records of the witness. In granting such protection, the Court held that:
"And any compulsory discovery by
extorting the party's oath, or compelling the production of his private books
and papers, to convict him of crime, or to forfeit his property, is contrary
to the principles of a free government. It is abhorrent to the instincts of
an Englishman; it is abhorrent to the instincts of an American. It may suit the purposes of despotic power, but it cannot abide
the pure atmosphere of political liberty and personal freedom," Boyd v. United States, 116
And further stated:
"And we are further of opinion that a compulsory production of the private books and papers of the owner of goods sought to be forfeited in such a suit is compelling him to be a witness against himself, within the meaning of the fifth amendment to the Constitution, and is the equivalent of a search and seizure -- and an unreasonable search and seizure -- within the meaning of the fourth amendment," Boyd v. United States, 116 U.S. 616, at 634-35 (1886).
<![endif]> Since the
decision in Boyd, the Supreme Court has on some occasions limited the
full import of that historic ruling. In Wilson v. United States,
221 U.S. 361, 31 S.Ct. 538 (1911), the Court held that the Boyd
principle did not apply to corporations; see also United States v. Peter, 479 F.2d
147 (6th Cir. 1973); and In Re Grand Jury Empanelled March 8, 1983, 722 F.2d
294 (6th Cir. 1983). It is through
<![if !supportLists]>39. <![endif]> The Fifth Amendment to the U.S. Constitution states that no person shall be compelled to be a "witness" against himself in a criminal prosecution or an investigation to collect evidence leading up to a criminal prosecution. Similar provisions exist in the constitutions of the various states of our nation.
<![if !supportLists]>40. <![endif]> What the Supreme Court has directed is that an accused cannot be compelled to produce his own incriminating books and records because such would involve to a degree an amount of authentication of such books and records on the part of the accused; such is tantamount to compelled testimony specifically proscribed by the Fifth Amendment.
<![if !supportLists]>41. <![endif]> In summary, what the Supreme Court has commanded is that if the government desires to obtain personal books and records and use the same against the accused, it must be done through witnesses other than the accused himself.
<![if !supportLists]>42. <![endif]> It was entirely improper, inappropriate and erroneous for the Magistrate to invoke United States v. Powell, a decision taken regarding the production of the books and records of a corporation that does not possess any Fifth Amendment rights, and to apply and use that decision to Order the production of a citizen’s personal books and records, and to compel him to provide testimony as well, under circumstances that indeed demanded that the Fifth Amendment rights of the individual, and the impact, or potential impact to them, be considered by the Court before issuing the Order.
STATUTORY AUTHORITIES OF THE MAGISTRATE
<![if !supportLists]>43. <![endif]> Internal Revenue Code restricts the power to enforce a § 7602 summons to the district courts. See I.R.C. §§ 7402(b), 7604(a); United States v. Wisnowski, 580 F.2d 149, 150 (5th Cir. 1978), reh. denied, 585 F.2d 521. Furthermore, a district court may not permit, and the parties may not consent to, extension of the power of the Magistrate to enter final judgment in an area where such power is restricted to the district courts. United States Steelworkers of America, AFL-CIO v. Bishop, 598 F.2d 408 (5th Cir. 1979). The power to issue an Order is denied to the Magistrate except under the very explicit circumstances specified under Title 7604(b).
<![if !supportLists]>44. <![endif]>The Magistrate’s true lawful authority to act to enforce a Summons is clearly identified in statute. Title 26 Sec. 7604 (b) clearly states
§ 7604. Enforcement of summons
(b) Enforcement. Whenever any person summoned under section 6420 (e)(2), 6421 (g)(2), 6427 (j)(2), or 7602 neglects or refuses to obey such summons, or to produce books, papers, records, or other data, or to give testimony, as required, the Secretary may apply to the judge of the district court or to a United States magistrate judge for the district within which the person so summoned resides or is found for an attachment against him as for a contempt. It shall be the duty of the judge or magistrate judge to hear the application, and, if satisfactory proof is made, to issue an attachment, directed to some proper officer, for the arrest of such person, and upon his being brought before him to proceed to a hearing of the case; and upon such hearing the judge or the United States magistrate judge shall have power to make such order as he shall deem proper, not inconsistent with the law for the punishment of contempts, to enforce obedience to the requirements of the summons and to punish such person for his default or disobedience. (emphasis added)
<![if !supportLists]>45. <![endif]> In the instant matter there is no evidence of neglect or refusal by Appellant on the record of the Court. There is no attachment for contempt. There is no record of any arrest. Appellant acted in a timely manner to answer the Summons as he was lawfully entitled to do.
<![if !supportLists]>46. <![endif]> Appellant answered the Summons without neglect or refusal. There has never been any attachment issued by any Court regarding Appellant for contempt, and there has never been any arrest of the Appellant made in these matters, as required under 7604(b) for the Magistrate to legitimately hold the power to issue an Order. In order for the Magistrate to hold a lawful authority to issue the Order that he issued, all of the preceding listed events must have occurred, and have not occurred. They are all pre-requisite to the issuance of any Order by the Magistrate regarding the enforcement of any Summons under these provisions of 7604(b).
<![if !supportLists]>47. <![endif]> According to Section 7604(b), without this entire chain of events in sequence – i.e.:
a. neglect or refusal by Appellant to respond to the Summons,
b. a warrant issued for contempt upon application by the Secretary for such,
c. an arrest of the Appellant by an authorized officer after
d. a finding of contempt by a judge (or Magistrate), and
e. the bringing of the arrested
subject before the Magistrate for a
then there can be no legal authority that is possessed by the Magistrate to issue any final Order regarding the enforcement of an IRS Summons. None of these required events ever occurred in this case, and none of these events are shown on the record of this Court for this case. The Magistrate’s Order of Aug. 23rd, enforcing the Summons, was clearly issued improperly and not lawfully under the authority of 26 U.S.C. Sec. 7604(b). This destroys the required “appropriate process” and removes jurisdiction over these matters from within reach of the district court.
<![if !supportLists]>48. <![endif]> Title 28 Section 636 provides the general authority of the Magistrate judges. Subsection (a) of that statute specifies:
§ 636. Jurisdiction, powers, and temporary assignment
(1) all powers and duties conferred or imposed upon
(2) the power to administer oaths and affirmations, issue orders pursuant to section 3142 of title 18 concerning release or detention of persons pending trial, and take acknowledgements, affidavits, and depositions;
(3) the power to conduct trials under section 3401, title 18, United States Code, in conformity with and subject to the limitations of that section;
(4) the power to enter a sentence for a petty offense; and
(5) the power to enter a sentence for a class A misdemeanor in a case in which the parties have consented.
<![if !supportLists]>49. <![endif]> Noticeably lacking here under subsection (a), is any authority to act under Title 26, and none specifically established to enforce an IRS Summons issued under Subtitle A of Title 26. That authority comes only from the satisfaction of the “appropriate process” required under 26 U.S.C. §§ 7402(b) and 7604(a), supra.
<![if !supportLists]>50. <![endif]>Subsection (b) of this section, 28 U.S.C. Sec. 636, further provides:
§ 636. Jurisdiction, powers, and temporary assignment
(1) Notwithstanding any provision of law to the contrary—
(A) a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judge’s order is clearly erroneous or contrary to law.
(B) a judge may also designate a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A), of applications for post-trial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement.
(C) the magistrate judge shall file his proposed findings and recommendations under subparagraph (B) with the court and a copy shall forthwith be mailed to all parties. Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. … (emphasis added)
<![if !supportLists]>51. <![endif]> Under subparagraph (b)(1)(B) of Sec. 636, the Magistrate is only authorized to conduct an evidentiary hearing, and is in fact required to afford an evidentiary opportunity to the Appellant through that hearing Rather than conduct an evidentiary or show cause hearing, the Magistrate conducted an unauthorized Summary Judgment Hearing, prejudicially favoring the government at every turn by denying all reasonable requests of the Appellant to procure evidence in his favor from the government’s own record systems on a number of issues and terminating the hearing prematurely in order to prevent the subpoenaed Revenue Agent from testifying concerning her perjury and false accusations.
<![if !supportLists]>52. <![endif]> Further: Appellant’s accusation that Agent Hunter committed perjury in her Statement to the Court was ignored as Appellant was denied the opportunity to question his accuser, by the Court’s stopping the summarily conducted hearing prematurely in order to declare it didn’t understand any of the arguments made and immediately issue, from a self-declared total lack of understanding, an improper and unauthorized final Order enforcing the Summons. Instead of issuing a report of “proposed findings of fact and a proposed disposition” as required by law after hearing all the evidence. Thereby again, further invalidating the statutory requirements of appropriate process necessary for District Court to hold jurisdiction.
<![if !supportLists]>53. <![endif]>The Magistrate further failed to notify Appellant as a pro se litigant of any right or requirement to object within 10 days of the Order, or of any legal consequences for failing to do so, again, further violating the required appropriate process by violating the well established and historically recognized duty of the courts when dealing with pro se litigants to inform them of their rights BEFORE ENFORCEMENT !
<![if !supportLists]>54. <![endif]> The Magistrate had no proper statutory authority at all to issue an Order of the court under the controlling circumstances, and in so doing, the Magistrate unlawfully usurped the authority of the District Court, violated appropriate process, and destroyed the court’s ability to take jurisdiction over the matter.
<![if !supportLists]>55. <![endif]> The Magistrate did not comply with the requirement to provide Appellant with the opportunity to introduce evidence in his favor, and did not conduct an evidentiary hearing. In fact, as the record of the Court in the form of the Docket Sheet for this case clearly shows, the Magistrate did everything in his power to ensure that no evidence at all could possibly arise out of the hearing that he conducted by denying every pre-hearing motion made by the Appellant in his efforts to exercise his rights to have compulsory process for obtaining witnesses, and to obtain evidentiary records relevant to the dispute, that operate in his favor. This was no evidentiary hearing or proceeding at all, by any stretch of the imagination. This was a summary judgment hearing, which the Magistrate was not authorized to conduct.
<![if !supportLists]>56. <![endif]> The Magistrate violated the rights of the pro se Appellant and the requirement for due process, because the Magistrate was required to notify the pro se Appellant of a right to object to the Magistrate’s action within 10 days, before any enforcement took place (see Wells v. Shriners Hospital, 109 F.3d 198, 200-201 (4th Cir. 1997)), and failed to notify Appellant of that right, thus violating the required appropriate process.
<![if !supportLists]>57. <![endif]> Additionally, the Magistrate failed to notify the pro se Appellant of the consequences of failing to object within 10 days, as he was required to do, see Wright v. Collins, 766 F.2d 841, 846-847 (4th Cir. 1985).
<![if !supportLists]>58. <![endif]> Finally, the Magistrate violated the 6th Amendment rights of the Appellant by denying him the opportunity to question his accuser, Revenue Agent Hunter, who had specifically been subpoenaed to the hearing by the Appellant to be called to testify under oath concerning statutory liability and allegations of perjury and false accusations made in the Revenue Agent’s sworn statement, and concerning the activities allegedly under investigation, alleged to have been committed by the Appellant.
<![if !supportLists]>59. <![endif]>The fact of the matter is the Revenue Agent had no complaint, no evidence, no facts, no witness, no victim, no complainant, no specific alleged criminal act, and no probable cause what-so-ever as lawful basis to conduct an investigation, and none was ever presented as evidence to these courts. The Revenue Agent was simply abusing the process of the court to GO FISHING for dollars to allege tax on, without any knowledge, evidence or testimony that Appellant ever engaged in any taxable or criminal activity, or that any such activity even ever actually occurred. The Revenue Agent possessed no facts or evidence what-so-ever of any illegal conduct at all, and was simply abusing the process of the court to go “fishing” for earnings to tax.
<![if !supportLists]>60. <![endif]> It is not a legitimate use of the Summons authority and powers, to go fishing for earnings to tax. The Summons is supposed to be reserved for legitimate investigations of real activity. It is not to be used to entertain “fishing” expeditions related to the unsubstantiated suspicions of the IRS employees. If there is no real world legitimate basis in the form of a factual probable cause to investigate a matter, then there is no justification for the invocation of the Summons authority and no legitimate cause to invoke the Summons powers, and it is an abuse of the process, a violation of appropriate process, and an abuse of the authority and process of the courts as well, to file for enforcement of a Summons that was issued in order to go “fishing” for dollars to tax, or to go looking, without factual evidence or probable cause, for a violation of law. The IRS is not allowed to issue a Summons to go “fishing” without probable cause, and this is exactly what the Revenue Agent has been allowed to do by the Magistrate.
<![if !supportLists]>61. <![endif]> In prematurely terminating the hearing, even as the Appellant was trying to ask questions of the Revenue Agent, the Magistrate denied the Appellant his 6th Amendment rights to both:
<![if !supportLists]>a. <![endif]>be confronted by and question the witnesses against him; and
<![if !supportLists]>b. <![endif]>to have compulsory process for obtaining witnesses in his favor
<![if !supportLists]>62. <![endif]> The compulsory process for obtaining witnesses in one’s favor is not satisfied merely by allowing an individual to Subpoena a witness to compel their appearance in court room. Defendant / Appellants must be allowed to actually call those subpoenaed witnesses to the stand, to be sworn in to be questioned and to testify under oath, before the Court issues any Order, in order for the constitutionally required “compulsory process” to be complete.
<![if !supportLists]>63. <![endif]> When it became apparent to the bench that the pro se Appellant wanted to question the Revenue Agent under oath on the witness stand, the Magistrate prematurely terminated the hearing, specifically in order to deny Appellant any opportunity to properly question under oath the Revenue Agent concerning the alleged probable cause for the investigation, and the perjury and false allegations made by the Agent in her statement regarding Appellant’s conduct.
<![if !supportLists]>64. <![endif]> The Magistrate failed his duty to do any of the acts known to be required, and then improperly deprived Appellant of his 4th Amendment right to be secure in his papers, houses and effects, and his 5th Amendment right to a protection from self-incrimination, by ordering him to give up those rights, under actual threat of indeterminate imprisonment, while intentionally and improperly circumventing consideration for Appellant’s 5th Amendment right to a guarantee of protection from self-incrimination, by invoking a corporate decision (Powell) where that right did not need to be considered because it did not exist in that case to be considered.
<![if !supportLists]>65. <![endif]> And finally, the district court violated the requirement to provide due process, by allowing the Magistrate to improperly issue and enforce a purportedly final Order without oversight of the district bench (see United States Steelworkers of America, AFL-CIO v. Bishop, 598 F.2d 408 (5th Cir. 1979)), rather than issue an interim report or proposed finding, as required by law.
PREJUDICAL EX-POST FACTO FALSE CONSTRUCTION
<![if !supportLists]>66. <![endif]> The Amended Order of the district court further constitutes reversible error because the proposed novel “construction” of events, as “construed” by the court in it own declaration, is a fictional interpretation of events that never occurred, and is egregiously prejudicial to the Appellant and his constitutional rights, which have clearly been improperly violated by the Magistrate’s usurping the Authority of the District Court in wrongfully and improperly issuing an Order enforcing the Summons and threatening the Appellant with imprisonment if he did not do provide books and records and give testimony as ordered.
<![if !supportLists]>67. <![endif]> That ex-post facto construction of events, “construed” by the district court as the basis for its Order, is pure fiction, constituting a direct contradiction to the facts of the case as shown on the record of the Court, and as such, is a clear violation of the requirements of Due Process under the 5th Amendment.
<![if !supportLists]>68. <![endif]> The requirements of Due Process do not allow the Court to invent by fiction a new case history, and to construe events in a non-factual manner. In a “construction” other than that which they actually occurred, one of pure fiction.
<![if !supportLists]>69. <![endif]> The government argues that under First Nat’l Bank of
<![if !supportLists]>70. <![endif]> Further, cite of First Nat’l Bank of Atlanta by the government is inappropriate and erroneous in the instant matter, because in that case the Magistrate’s error was discovered and corrected by the district bench before any enforcement of the Magistrate’s Order occurred, and before any production of books and records was compelled, and before any testimony was ordered to be made, UNLIKE THE CIRCUMSTANCES IN THIS CASE, where the unlawful nature of the Magistrate’s ORDER was not discovered and corrected before enforcement occurred, and books and records were wrongfully compelled to be produced and testimony was ordered to be given by a magistrate that usurped the authority of the district court.
<![if !supportLists]>71. <![endif]> In the instant dispute now before the court, quite a different set of circumstances are the controlling factual circumstances. In this dispute the district court did not discover and act to correct the error of the Magistrate before enforcement occurred, but over 12 months later. First Nat’l Bank of Atlanta is not an applicable authority because of the dissimilar circumstances of the two district bench’s timing in acting to correct the error. In First Nat’l the error was discovered before enforcement, and therefore is not relevant or applicable to the instant matter.
<![if !supportLists]>72. <![endif]> In one instance, no damage was actually done because the error was caught in time, before enforcement. In the other instance, this case, the illegal Order was wrongfully enforced by the Magistrate, whose improper act has seriously impacted and damaged Appellant’s constitutional rights. The damage has been done. The district bench cannot legitimately white-wash the Magistrate’s usurpation of the district court’s authority by construing a non-factual set of events into existence in order to rubber-stamp the obviously improper enforcement of the instant Summons.
<![if !supportLists]>73. <![endif]> The government’s only other reply is the argument that it is “specious” of the Appellant to expect the courts to rely on facts and written law to settle a dispute, rather than to rely on the invented fiction “construed” into existence by the creative imagination of a less than impartial district court judge. A fiction that the district court invents by false construction by construing events in a fictional manner, in order to attempt to fit them to an outcome for the dispute that has been pre-determined by the court, in complete disregard for the facts and true circumstances of the events that have actually, incredibly, transpired.
<![if !supportLists]>74. <![endif]> The requirements of Due Process do not allow the Court to pretend that events have occurred, when in fact they have not. No report or recommendation was ever written by the Magistrate as required by the statutes under Section 636(b)(1)(B), supra.
<![if !supportLists]>75. <![endif]>The requirements of Due Process do not allow the Court to pretend that violations have not occurred, when in fact they have. The Magistrate usurped the authority of the District Court and improperly issued an Order he was not authorized to make. The Court’s proposal to construe events, in an ex-post facto fashion, in a manner that never actually occurred, is incredibly improper, and is extremely prejudicial to Appellant and his Rights. The requirements of Due Process do not allow the Court to prejudicially alter the facts of a case as shown in the Court’s own records of the case, to suit the Court’s desired outcome in a case.
<![if !supportLists]>76. <![endif]> The requirements of Due Process do not allow the Court to cover up or white-wash the Magistrate’s error, or to inappropriately favor the government, or to “construe” a false set of facts into existence in order to effect a pre-determined result or outcome that is desired by a District Court that is obviously no longer impartial.
<![if !supportLists]>77. <![endif]> Through this novel construction, the Court attempts to invent a complete fiction that blatantly contradicts what is documented on the record of the District Court as this case’s true history of facts. Due Process requires that the Court not attempt to alter the facts of this case as they are actually documented on the written record of the Court in the case.
<![if !supportLists]>78. <![endif]> The record is clear. The face of the document itself is styled as an ORDER issued August 23rd by the Magistrate. The Court’s own Docket Sheet for this case is irrefutable and shows an Order emanating from the Court on August 23rd. It clearly shows the Magistrate issued an Order on August 23rd, not a recommendation or a report, or even a “proposed findings of fact and a proposed disposition” as required by law and necessary for “appropriate process” in order for the court to hold jurisdiction.
<![if !supportLists]>79. <![endif]> The Magistrate issued an improper Order, and as it has now been shown, it was in fact an unlawful Order that the Magistrate had no
authority to issue. The erroneous and
improper enforcement of that unauthorized and inappropriate Order has obliterated the Appellant’s 4th
and 5th Amendment rights, which were not properly taken into
consideration beforehand by the Magistrate in applying the decision taken in
the Powell case to inappropriately
decide this non-corporate matter on the nefarious issue of alleged, presumed liability that was never
identified in statute. That improper,
inappropriate, and unauthorized August 23rd Order of the Magistrate should
now be vacated, together with the Amended Order of the District Court of November 6th, and the
Final Order of the District Court as
<![if !supportLists]>80. <![endif]> The Magistrate himself invalidates the “appropriate process” required for the District Court to hold jurisdiction by usurping the authority of the Court and himself issuing an unauthorized and improper Order (of August 23rd), instead of merely issuing a report and recommendation or “proposed findings of fact and a proposed disposition” as required by Title 28 Sec. 636(b)(1)(B) and (C), the required “appropriate process”.
<![if !supportLists]>81. <![endif]> The Magistrate himself, by issuing the improper Order, acted to violate and in fact invalidated, the required “appropriate process” from which the jurisdiction of the District Court would have been lawfully derived to proceed further with enforcement. Consequently, the District Court had lost its jurisdiction to subsequently affirm, uphold, or enforce the improper August 23rd Order of the Magistrate, and this Circuit Court bench should now recognize the improper and inappropriate nature of the Magistrate’s action in usurping the authority of the District Court and improperly issuing an allegedly final Order. The Circuit Court should now restore and repair Appellant’s 4th and 5th Amendment rights, by declaring the Magistrate’s and the District Court’s actions erroneous, vacating the improper Orders, and reversing their damaging effects in order to restore Appellant’s constitutional rights and make Appellant whole again.
<![if !supportLists]>82. <![endif]> It was totally improper for the District Court to pretend to entertain written objections to the improper August 19th Order of the Magistrate, two months after the unlawful Order had already been wrongfully enforced as an Order of the Court. Is the District Court a mere rubber stamp to cover up the unlawful acts committed by the Magistrate?
<![if !supportLists]>83. <![endif]> Any hearing regarding objections to a report should have taken place before the Summons was improperly Ordered to be enforced by the Magistrate. Under 28 U.S.C. 636(b)(1)(B), supra, the Magistrate was required to file a report or “proposed findings of fact and a proposed disposition” to which objections could be made by the Appellant within 10 days. Instead, the Magistrate acted improperly, usurped the authority of the District Court and, in violating the limits of his legal authority, issued what amounts to nothing more than a counterfeited forgery, posing as an Order of the Court.
<![if !supportLists]>84. <![endif]> Neither the government, nor the Court, can now credibly or legitimately argue that this August 23rd Order issued by the Magistrate is, or ever was, anything other than an improper and inappropriate Order, issued by a Magistrate without proper legal authority to do so. The factual existence of the Order cannot now be denied, and it cannot now be legitimately construed in a prejudicial, ex-post facto, fictional manner by the Court as a mere “proposed findings of fact and a proposed disposition”.
<![if !supportLists]>85. <![endif]> Additionally, Appellant believes that the District Court has further acted prejudicially in summarily denying the Appellant’s Motion to Amend the Transcript of the August 23rd Hearing, without any additional hearing opportunity being afforded to the Appellant to demonstrate the accuracy of his assertions through corroborating testimony of eye witnesses to the hearing, regarding the removal of lines spoken by the Magistrate from the transcribed record of the hearing.
<![if !supportLists]>86. <![endif]> Appellant believes that he is entitled to a hearing with testimony by eye witnesses to establish the accuracy of his assertion that the transcript of the hearing held on August 23rd is not complete, having been edited to remove obviously prejudicial statements made by the Magistrate while ruling. Also, to finally be allowed to question the Revenue Agent under oath.
<![if !supportLists]>87. <![endif]> Appellant does not dispute what is shown on the transcript. He does however, dispute the completeness of that transcript, knowing for a fact that it is incomplete and has obviously been manipulated and altered in violation of the law, as the Magistrate’s loud declarations, made seconds before ruling, declaring that he did not understand a single word or argument that Appellant presented, has been prejudicially, magically, and illegally removed from the audio and written transcripts of the hearing.
<![if !supportLists]>88. <![endif]> It was entirely improper for the Magistrate to declare he didn’t understand the arguments, and then rule out of an admitted total lack of understanding. Now the Court tries to cover up both the prejudicial disconsideration, and the crime committed of manipulating the transcript and deleting spoken portions of the hearing from it. If the Magistrate didn’t understand the arguments presented, he should have taken time to consider them, or to ask questions in order to try to understand the issues and arguments presented, before ruling.
<![if !supportLists]>89. <![endif]> It is entirely prejudicial and improper for the bench to declare it does not understand a matter, and then nevertheless, issue a ruling to dispose of it. If the Court doesn’t understand a matter, then it cannot legitimately issue a ruling regarding it. Otherwise, it is not ruling from a proper understanding of the law, only out of admitted ignorance of it, and that is not justice, only INJUSTICE and TYRANNY, and obviously so.
<![if !supportLists]>90. <![endif]> Rule 10 of the Federal Rules of Appellate Procedure states:
(e) Correction or Modification of the Record.
(1) If any difference arises
about whether the record truly
discloses what occurred in the district court, the difference must
be submitted to and settled by that court and the record
(2) If anything material to
either party is omitted from or
misstated in the record by error or accident, the omission or
misstatement may be corrected and a supplemental record may
be certified and forwarded:
(A) on stipulation of the parties;
the district court before or after the record has been
(C) by the court of appeals.
(3) All other questions as to the form and content of the record
must be presented to the court of appeals.
Rule 10(e)(3) clearly places it within the power of this Court to investigate and correct the transcript to any hearing if necessary, in order to make it a complete and truly accurate record of events as they actually transpired in the courtroom.
SUMMARY AND CONCLUSION
<![if !supportLists]>91. <![endif]>The improper and inappropriate actions engaged in by both the Revenue Agent, as identified under 26 U.S.C. § 7608 (a) and (b) in serving a Summons that she is not authorized by law to serve under Subtitle A, and of the Magistrate, in usurping the authority of the District Court by improperly issuing a purportedly final Order, invalidated the jurisdiction of the District Court, which is dependent upon the “appropriate process” required by law under §§ 7604(a) and 7402(b). Without addressing and establishing jurisdiction through the ensured accomplishment of “appropriate process”, the District Court had no authority to continue with proceedings and entertain objections to, or Order the upholding of, the enforcement of the Summons.
<![if !supportLists]>92. <![endif]> A summons enforcement Order is a final dispositive and appealable order, Reisman v.
<![if !supportLists]>93. <![endif]>On August 23rd The Magistrate was required by law under 28 U.S.C. 636(b)(1)(B)to write a report or a “proposed findings of fact and a proposed disposition”, and was not authorized to issue an Order enforcing the Summons. Internal Revenue Code restricts the power to enforce an IRS Summons to the District Courts, see United States v. Wisnowski, 580 F.2d 149, 150 (5th Cir. 1978), and does not extend that authority to the Magistrate until after an arrest for contempt has been made, see 26 USC Sec. 7402(b).
<![if !supportLists]>94. <![endif]> The Magistrate was further required to notify the pro se Appellant of his rights to object to the Magistrate’s action within 10 days, before any enforcement took place, see Wells v. Shriners Hospital, 109 F.3d 198, 200-201 (4th Cir. 1997), and failed to do so, violating the well established history of carefully preserving the rights of pro se litigants, as the courts are both historically, and morally, required to do.
<![if !supportLists]>95. <![endif]> Additionally, the Magistrate failed to notify the pro se Appellant of the consequences of failing to object within 10 days to the Magistrates Order, rather than to Appeal the decision within the time frames provided by Rule 4 of the Rules of Appellate Procedure. The Magistrate is required to provide this notice, see Wright v. Collins, 766 F.2d 841, 846-847 (4th Cir. 1985). The Magistrate failed his known duty to do any of these required acts, and then acted improperly by usurping the authority of the district court and issuing a purportedly final Order instead of a report or proposed finding as required by law under 28 U.S.C. Section 636(b)(1)(B).
<![if !supportLists]>96. <![endif]>Finally, The Magistrate has improperly and erroneously invoked and
relied upon the United States v. Powell decision
to settle this matter. The District
Court bench specifically ordered the Appellant on
<![if !supportLists]>97. <![endif]>Powell was a
decision involving the compelled production
of a corporation’s books and records. In
that case the Fifth Amendment right to the protection from
self-incrimination was properly not considered by the Court, because the right did not exist to be considered
(see Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538 (1911). Corporations don’t possess a Fifth
Amendment right to a protection from self-incrimination, and since that
<![if !supportLists]>98. <![endif]> By erroneously invoking the Powell decision, the court conveniently circumvented and completely bypassed that Fifth Amendment right of the Appellant, and all consideration for it. The Court even fails to evaluate whether or not there is any possible potential impact to that right, in a dispute where that right does indeed exist, unlike in Powell, and under circumstances which indeed demanded that the right be taken into consideration by the Court before ruling. Consideration that should have been provided before the Court Ordered Appellant to give up his 4th and 5th Amendment rights under actual threat and pain of indeterminate imprisonment, and turn over to the Revenue Agent books and records, and to provide testimony.
<![if !supportLists]>99. <![endif]> The
<![endif]> Appellant never voluntarily gave up any of his constitutional rights.
Appellant was improperly and unlawfully ordered by the Magistrate on
district court even ignores its own initial summary of the limited powers of the
Magistrate under the known history of judicial rulings, delivered by the
District Court (Judge Moon) in his first Order
in this case, issued on
<![if !supportLists]>102. <![endif]>The Court clearly knows the truth about these matters, as it produced that honest history itself in the November 6th Order. The Court clearly knows the truth about the limited powers of the Magistrate to act, why does it now refuse to let the known truth and legitimate history of the law control the settlement of the dispute?
<![if !supportLists]>103. <![endif]> The District Court bench has obviously acted prejudicially to effect a pre-determined outcome of this matter in favor of the government, who the courts for some inexplicable reason have erroneously deemed infallible; regardless of the true facts of the dispute, regardless of the honest application of the actual written laws, regardless of the proper application of the known correct case law history, regardless of the proper application of the controlling Supreme Court decisions, and regardless for the constitutional Rights of the Appellant under the 4th and 5th Amendments. How much law can one court ignore and still claim credibly to be a court of law?
<![if !supportLists]>104. <![endif]>Ultimately, Appellant was forced, under actual judicial threat of indeterminate imprisonment, to turn over books and records, and give testimony, all in violation of his 4th and 5th Amendment rights, by a Magistrate who improperly invoked the corporate Powell decision in order to attempt to summarily dismiss the 5th Amendment issue, and who actually possessed no lawful authority what-so-ever to even issue such an Order under the instant circumstances. See Title 28 U.S.C. Sec. 636 (a) and (b), and Title 26 U.S.C. Sec. 7604(b), supra.
<![if !supportLists]>105. <![endif]> Under threat of arrest and prolonged, indeterminate imprisonment, the equivalent of being ordered at gunpoint, Appellant was wrongfully and improperly forced to give up his constitutional rights by a Magistrate who acted improperly, and in fact illegally, in violation of the law and its established standards, and in excess of his true authority to act as a Magistrate. The Court should now correct these egregious reversible errors committed by this Magistrate and the District Court Bench, and restore Appellant’s constitutional rights and make Appellant whole again.
<![if !supportLists]>106. <![endif]> The Order was improperly issued by the Magistrate, without true lawful authority to issue a purportedly final Order enforcing an Internal Revenue Summons, and without giving Appellant the required Notice of his rights as a pro se litigant to object within 10 days to the Magistrate’s action. Appellant’s 4th and 5th Amendment rights have been totally demolished and obliterated by the Magistrate’s action and the wrongful enforcement of the Summons, and these higher Courts now have a clear duty to repair and restore those constitutional rights and make whole the Appellant, and to correct the egregious reversible errors of the District Court and its Magistrate.
“There is no such thing in the theory of our national government as unlimited power of taxation in
congress. There are limitations, as
he justly observes, of its powers arising out of the essential nature of all
free governments; there are reservations
of individual rights, without which society could not exist, and which are
respected by every government. The right
of taxation is subject to these limitations. Citizens' Savings Loan Ass'n v.
<![if !supportLists]>108. <![endif]>The government’s entire response consists of arguing that the courts have changed the meaning of the written statutes, and changed the application of the written law, by judicial legislation. Effectively now authorizing things to happen, that are not actually specified in the law as being allowed to occur. The Constitution itself, at Article 1, Section 1, Clause 1, renders that legal argument worthless because it clearly states:
legislative powers herein granted shall be vested in a Congress of the
<![if !supportLists]>109. <![endif]>Courts and judges, the judicial branch of the government, possess no power to write, re-write, alter, or amend the written laws as they are enacted by Congress. They may strike clauses in their entirety for want of constitutionality, but they may not correct or change the law for the legislature. To attempt to exercise such a power is to violate the separation of powers between the branches of the government. This court should settle this dispute based on the written provisions of the statutes as they exist at this time, that have been identified by the Appellant in his briefs, and should utterly reject as ludicrous the Appellee’s contentions that the lower courts, by virtue of the opinions and rulings of their decisions, have altered not only the written law in the provisions of the statutes, but also their operation on the public as well.
<![if !supportLists]>110. <![endif]>The courts, through these wrongful and erroneous rulings regarding the collection and enforcement of income tax as a direct tax are improperly and wrongfully effecting the transformation of the American constitutional system of a republican form of government from a specific and limited government, of enumerated powers plainly written in the law, to a general and supreme one of assumed and unlimited authority not granted anywhere, but which, nevertheless, cannot be questioned.
PRAYER FOR RELIEF
<![if !supportLists]>111. <![endif]> The damage to the Appellant’s constitutional rights perpetrated by the Magistrate unlawful Order is done. The damage cannot be repaired without recognizing and now declaring that in usurping the authority of the district court bench to issue an Order, the Magistrate’s committed an egregious reversible error that should now be vacated.
<![if !supportLists]>112. <![endif]>Appellant prays this Appeals Court will now Order vacated the August 23rd Order of the Magistrate, the November 6th Amended Order of the District Court, and the final Order of the District Court issued Aug. 23rd, 2008.
further prays this Court to Order the
<![if !supportLists]>114. <![endif]>Appellant also prays this Court to Order sealed as poisoned fruit, that may never be used in any form in any action against Appellant at any time in the future, all records, documents, materials, notes, recordings, and all other materials and information that may have come into the possession or to the attention of the United States government as a result of this unlawful Order of the Magistrate being wrongfully enforced upon Appellant’s person.
Thomas T. -------.
Appellant, In Propria Persona
CERTIFICATE OF SERVICE
I, Thomas T. --------, certify that a true copy of the attached Appellant’s Reply to Appellee’s Informal Brief has been served via Certified Mail to the following:
Richard L. --------, Attorney
Thomas T. -------
Jeffersonton, VA 22724