Petition For A Rehearing

QUESTIONS PRESENTED

1. Should the production of papers, books, records, and testimony be compelled by the federal judiciary without any consideration for a citizen’s Fifth Amendment Right to a protection from self-incrimination?

2. Do Magistrate judges have authority to issue and enforce Final Orders of the District Courts?

3. Is the Magistrate judge required to inform a pro se litigant of his or her rights within the I.R.S. Summons enforcement process?

4. Is “appropriate process” required for the District Court to hold jurisdiction to enforce a Summons issued by the Internal Revenue Service?

5. What establishes “appropriate process” if controlling statutes are not obeyed and applicable precedents are not followed?

LIST OF PARTIES

All parties are listed on the cover page

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . i

LIST OF PARTIES . . . . ii

TABLE OF CONTENTS . . . . iii

TABLE OF STATUTES . . . . iv

TABLE OF AUTHORITIES . . . . v

OPINIONS BELOW . . . . . 1

JURISDICTION . . . . . 1

STATUTORY PROVISIONS . . . . 1

STATEMENT OF THE CASE . . . 7

ARGUMENTS . . . . . 8

Proper Line Of Applicable Precedents . . . 8

Statutory Construction . . . . . 9

Jurisdiction By “Appropriate Process” . . . 16

Authority Of The Magistrate . . . . 17

Powell As Erroneous Precedent . . . 19

Fifth Amendment Rights Issues . . . . 21

First National As Erroneous Precedent . . 23

SUMMARY AND CONCLUSION . . . 26

PRAYER FOR RELIEF . . . . 28

TABLE OF AUTHORITIES

Case Page

American Tobacco Co. v Patterson............................................... 14

Beecham v. United States............................................................... 12

Blau v. United States...................................................................... 22

Boyd v. United States............................................................... 22, 23

Busse v. Commissioner of Internal Revenue................................... 13

CBS, Inc. v FCC............................................................................. 13

Citizens' Savings Loan Ass'n v. Topeka.......................................... 28

Commonwealth Natural Resources, Inc. v. Commonwealth,......... 15

Connecticut National Bank v. Germain......................................... 10

Consumer Product Safety Comm'n v GTE Sylvania, Inc............... 11

DeLima v. Bidwell,.......................................................................... 24

Demarest v. Manspeaker................................................................ 10

DeSoto Securities Co. v. Commissioner......................................... 15

Estate of Cowart v. Nicklos Drilling Co....................................... 11

Federal Trade Com. v Simplicity Pattern Co................................. 12

First Nat’l Bank of Atlanta....................................................... 24, 25

Freytag v. Commissioner............................................................... 11

Fuller v. United States.................................................................... 11

Gould v. Gould............................................................................... 15

Greyhound Corp. v. United States................................................. 16

Hale v. Henkel................................................................................ 22

Hassett v. Welch............................................................................. 15

Hoffman v. United States............................................................... 22

In Re Grand Jury Empanelled March 8, 1983................................ 23

Keene Corp. v United States.......................................................... 13

McNary v Haitian Refugee Center................................................. 10

Oneale v. Thornton......................................................................... 10

Parkersburg v. Brown.................................................................... 28

Piper v. Chris-Craft Industries, Inc................................................ 14

Pollock v. Farmer’s Loan & Trust Co........................................... 28

Powell v. United States.................................................................. 27

Powell v. United States,................................................................. 19

Product Safety Comm'n v. GTE Sylvania...................................... 12

Case (cont.) Page

Ratzlaf v. United States.................................................................. 14

Reisman v. Caplin....................................................................... 8, 26

Reiter v Sonotone Corp.................................................................. 10

Richards v United States................................................................ 11

Richards v. United States............................................................... 11

Ron Pair Enterprises....................................................................... 10

Rubin v. United States.................................................................... 10

Russello v United States................................................................. 13

Sutherland Statutory Construction................................................. 15

United States Steelworkers of America, AFL-CIO v. Bishop..... 8, 26

United States v. Calamaro............................................................. 14

United States v. First Nat'l Bank................................................ 8, 26

United States v. Goldenberg...................................................... 9, 10

United States v. Lexington Mill & E. Co........................................ 12

United States v. Peter..................................................................... 23

United States v. Powell.................................................... 2, 8, 23, 27

United States v. Ron Pair Enterprises, Inc..................................... 10

United States v. Wisnowski........................................................ 8, 26

Washington Market Co. v. Hoffman.............................................. 12

Water Quality Ass'n v. United States.............................................. 15

Wells v. Shriners Hospital..................................................... 9, 18, 26

Wilson v. United States....................................................... 19, 23, 27

Wright v. Collins................................................................... 9, 18, 26

TABLE OF STATUTES

Statute Page

26 USC § 7402. Jurisdiction of district courts..... 1, 2, 5, 8, 16, 19, 25, 26

26 USC § 7602. Examination of books and witnesses..... 8, 25

26 USC § 7604. Enforcement of summons......... 1, 5, 8, 9, 16, 18, 25, 26

26 USC § 7608. Authority of officers..... 2, 3, 4, 5, 9, 15, 16, 17, 26

28 USC § 636. Jurisdiction, powers, assignment 5, 6, 7, 18, 19, 23, 25

28 USC § 1254. Courts of appeals; certiorari; certified questions............ 7

OPINIONS BELOW

United States v. Thomas T. Scambos, Jr., (U.S. District Court for the Eastern District of Virginia), No. 3:07-MC-00011, and United States v. Thomas T. Scambos, Jr., Court of Appeals for the Fourth Circuit, 08-2102.

JURISDICTIONAL STATEMENT

This Petition for certiorari, filed pursuant to 28 U.S.C. § 1254(1), seeks review of the Fourth Circuit of Appeals Opinion in this case, filed on March 19^th, 2009, reported as Case No. 08-2102.

STATUTORY PROVISIONS

This case involves the violations of the lower courts of the clear provisions of the statutes and the proper applicable precedents, providing for the “appropriate process” by which jurisdiction of the District Courts is legitimately established and preserved over the enforcement of an Internal Revenue Service Summons served on an individual citizen.

This case also involves the Magistrate’s erroneous reliance on the United States v. Powell, 379 U.S. 48 (1964) decision, as the applicable precedent under which to dispose of this dispute.

The statutory jurisdiction of the District Courts to enforce internal revenue Summons is identified in Title 26 U.S.C. Sections 7402(b) and 7604(a). Title 26 U.S.C. Section 7604(a) 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 United States district court for the district in which such person resides or is found shall have jurisdiction by appropriate process to compel such attendance, testimony, or production of books, papers, records, or other data.

(emphasis added)

And Title 26 U.S.C. Section 7402(b) similarly states:

§ 7402. Jurisdiction of district courts
….

(b) To enforce summons

If 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 United States for the district in which such person resides or may be found shall have jurisdiction by appropriate process to compel such attendance, testimony, or production of books, papers, or other data.

(emphasis added)

These statutes both make it absolutely clear that the jurisdiction of the District Court over the enforcement of an internal revenue Summons is only established by the accomplishment of the specified “appropriate process”. Both of these statutes invoke the same requirement of “appropriate process”, made necessary for the Court to hold jurisdiction.

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 of the I.R.S., and the Courts, throughout the Summons enforcement process.

The legal authority of Internal Revenue Service Agents, like the Agent in this case, to serve Internal Revenue Summons, is clearly specified and spelled out in Title 26 U.S.C. Section 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 –

(1) carry firearms;

(2) execute and serve search warrants and arrest warrants, and serve subpoenas and summonses issued under authority of the United States;

…

(emphasis added)

This statute is clearly an authority for any IRS employee to serve a Summons in the pursuit of investigations being conducted only under Subtitle E, “pertaining to the commodities subject to tax”.

Conversely, we see in Title 26 U.S.C. Section 7608(b) that the only employee of the Internal Revenue Service who is authorized to serve a Summons in pursuit of an investigation outside of Subtitle E, which would include Subtitle A, which is the relevant subject of the instant dispute, is a “criminal investigator of the Intelligence Division”.

§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;
…. (emphasis added)

The clear distinction in authorities under the (two) different subtitles, established and granted by the two separate code sections is undeniable. Subsection (a), establishing the authority to investigate under Subtitle E states that “Any … agent, or other internal revenue officer by whatever term designated…”.

Subsection (b), on the other hand, providing the authority outside of Subtitle E, only authorizes “Any criminal investigator of the Intelligence Division of the Internal Revenue Service”, and does not include the “by whatever term designated” language, necessary to include other employees of the Service within the authority granted by this statute, as in Subsection (a).

This case involves the misuse of the statutes by an unauthorized IRS employee (agent), who is not a “criminal investigator of the Intelligence Division”, who improperly issued and served a Subtitle A Summons, operating outside of her Subtitle E authority as an “agent”, and therefore exceeded and violated the authority provided under Section 7608(a), supra, and also violated the specific requirements of the authority granted under Section 7608(b). For this reason, the “appropriate process” necessary for the District Court to hold jurisdiction over these matters to enforce the Summons never existed in this case.

Title 28 U.S.C. Section 636 provides the general authority of the Magistrate judges. Subsection (a) of that statute specifies:

§ 636. Jurisdiction, powers, and temporary assignment

(a) Each United States magistrate judge serving under this chapter shall have within the district in which sessions are held by the court that appointed the magistrate judge, at other places where that court may function, and elsewhere as authorized by law—

(1) all powers and duties conferred or imposed upon United States commissioners by law or by the Rules of Criminal Procedure for the United States District Courts;

(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.

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.

Subsection (b) of this section, 28 U.S.C. § 636, further provides:

§ 636. Jurisdiction, powers, and temporary assignment

(b)

(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)

Under subparagraph (b)(1)(B) of Sec. 636, the Magistrate is only authorized to conduct a preliminary evidentiary hearing, after which a report of proposed findings is to be prepared and submitted.

In this Petition for certiorari the Petitioner believes that material facts, applicable statutes, and appropriate court precedents have been ignored, and were erroneously discounted or disregarded by the lower courts. Additionally, the District and Appeals Court Opinions conflict with the well established line of applicable precedents controlling these matters.

STATEMENT OF THE CASE

This case is on appeal from a Final Order of the District Court upholding the actions of a Magistrate judge who improperly issued and enforced an Order of the Court without oversight by the District bench, as though he himself (the Magistrate) possessed the authority of the District Court to issue and enforce “Orders” as Final Orders of the District Court. Additionally, the Magistrate never provided the pro se Litigant with the required legal “notice” of his objection and appeal rights within the Summons enforcement process.

Eleven months after the Magistrate’s Order had already been enforced as a Final Order of the District Court, the district court bench refused to address the identified jurisdictional issues raised in objection by Petitioner, refused to address the objection regarding the alleged improper invocation and reliance on an inappropriate precedent (Powell) by the Magistrate to improperly dispose of the dispute, refused to address the fifth amendment rights issues raised in objection, and abused the discretion of the court by altering the facts of the case as documented on the court’s own docket sheet, in order to “construe” the Magistrate’s enforced Order as a mere “report and recommendation”, rather than as an Order of the District Court that had already been enforced, as shown on the Docket Sheet for the case, in order to “rubber stamp” and improperly uphold the Magistrate’s unauthorized Order that had been issued at the preliminary hearing and that had already been wrongfully enforced by the Magistrate on the Petitioner without the Magistrate providing the pro se litigant any notice of his objection or appeal rights within the Summons enforcement process.

The Magistrate further erroneously relied on the United States v. Powell, 379 U.S. 48 (1964) decision as the only applicable precedent necessary to invoke to Order an individual citizen, the Petitioner in this case, to produce books and record for inspection by the government, and to provide testimony to the I.R.S. Powell was a corporate matter, and was not a dispute in which any 5^th Amendment rights existed to be considered by the Court in its ruling. In this case, the Petitioner does possess 5^th Amendment rights that should have been considered before the Order was issued by the Magistrate settling the dispute.

ARGUMENTS

Proper Line Of Applicable Precedents

In order to avoid addressing the legal issues raised in this dispute, the lower courts have invoked an erroneous line of precedents that conflicts with the long established and well known proper line of precedents applicable to this matter. The proper line of applicable precedent is simple and clear.

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. A summons enforcement Order is a final dispositive and appealable order, Reisman v. Caplin, 375 U.S. 440, 449 (1964), beyond the authority of a magistrate judge to issue. United States v. First Nat'l Bank, 628 F.2d 871, 873 (5th Cir. 1980); United States v. Wisnowski, 580 F.2d 149 (5th Cir. 1978). 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 a Final Order is not granted to the Magistrate, and is in fact denied to the Magistrate except under the very explicit circumstances specified under Title 7604(b) requiring the arrest of the summoned party.

Additionally, the district court Magistrate intentionally avoided and completely failed the legal duty to provide the pro se litigant with the required Notice of the pro se’s rights to object within 10 days to the Magistrate’s decision, see Wells v. Shriners Hospital, 109 F.3d 198, 200-201 (4^th Cir. 1997), and also failed to notify the pro se litigant of the consequences of failing to do so (object), see Wright v. Collins, 766 F.2d 841, 846-847 (4^th Cir. 1985).

All of these controlling precedents and authorities have been overlooked or ignored by both the District and Circuit courts in their Orders in this dispute, and this obvious conflict with the courts’ true holdings in similar matters has not been addressed in their Opinions.

Statutory Construction

The language of code sub-sections 7608(a) and (b) is perfectly clear. They establish separate and distinct authorities for the issuance and service of Internal Revenue Service Summons under the two separate Subtitles of Title 26, A and E. In order to accommodate the convenience of the government, the lower courts have failed to hold the government to the law as written, and have extended to the Internal Revenue Service agent by implication, an authority that is not actually provided for, or granted in statute for the agent to exercise.

In examining the issues of statutory construction and the power of the Court to change the law from what is written to something deemed by the court to be more desirable than what Congress has provided, the Court has repeatedly been quite consistent in its holdings. In United States v. Goldenberg, 168 U.S. 95, the court held:

“The primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he has used. He is presumed to know the meaning of the words and the rules of grammar"

In Demarest v. Manspeaker, 498 US 184, 112 L Ed 2d 608, 111 S Ct. 599, (1991), the court held:

"In deciding a question of statutory construction, we begin of course with the language of the statute."

In Connecticut National Bank v. Germain, 503 US 249, p. 253-254, 117 L.Ed 2nd 91(1992), the court identifies that:

" a court should always turn first to one cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. See, e.g., United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241 -242 (1989); United States v. Goldenberg, 168 U.S. 95, 102 -103 (1897); Oneale v. Thornton, 6 Cranch 53, 68. When the words of a statute are unambiguous, then this first canon is also the last: "judicial inquiry is complete." Rubin v. United States, 449 U.S. 424, 430 (1981); see also Ron Pair Enterprises, supra, at 241"

In McNary v Haitian Refugee Center, 498 US 479, 112 L Ed 2d 1005, 111 S Ct. 888, (1991), the court invokes these basic standards of statutory construction again:

"In construing a federal statute, it is presumable that Congress legislates with knowledge of the United States Supreme Court's basic rules of statutory construction."

In Reiter v Sonotone Corp., 442 US 330, 337, 60 L Ed 2d 931, 99 S Ct. 2326 (1979), the court again recognizes its duty to begin with the specific words of the statute:

"As in all cases involving statutory construction, "our starting point must be the language employed by Congress,",

And again, in Richards v United States, 369 US 1, 9, 7 L Ed 2d 492, 82 S Ct. 585 (1962), the court indicates that:

“we assume that the legislative purpose is expressed by the ordinary meaning of the words used."

In Consumer Product Safety Comm'n v GTE Sylvania, Inc., 447 US 102, 108, 64 L Ed 2d 766, 100 S Ct. 2051 (1980), the court again recognizes:

"…absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive."

And in Freytag v. Commissioner, 501 US 115 L Ed 2d 764, pp. 767 – 973, the court simply states:

"When the terms of a statute are unambiguous, judicial inquiry is complete except in rare and exceptional circumstances."

In 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), the court expands on this point:

"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."

This is echoed in Estate of Cowart v. Nicklos Drilling Co., 505 US 120 L Ed 2d 379, 112 S Ct. 2589 (1992), the court wrote:

"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."

And again in Washington Market Co. v. Hoffman, 101 U. S. 112, 115, 25 L. Ed. 782, 783:

"Words used in the statute are to be given their proper signification and effect."

And again in Beecham v. United States, 511 US 128 L Ed 2d 383 (1994):

"The court's task is to determine whether the language the legislators actually enacted has a plain, unambiguous meaning."

And in recognition of the lack of judicial power to alter written law, in Federal Trade Com. v Simplicity Pattern Co., 360 US 55, p. 55

"The United States Supreme Court cannot supply what Congress has studiously omitted in a statute."

And continuing, from Product Safety Comm'n v. GTE Sylvania, 447 US 102, 64 L Ed 2d 766, 100 S Ct. 2051 (1980), the court again, consistently holds:

"The starting 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."

In United States v. Lexington Mill & E. Co., 232 US 399, pp. 409. (1914), the court reiterates:

"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."

In Busse v. Commissioner of Internal Revenue, 479 F2d 1143, the court again is consistent in its recognition of both its own duty, and the limits of its own power to create effect with its rulings:

"Courts have no power to rewrite legislative enactments to give effect to their ideas of policy and fitness or the desirability of symmetry in statutes."

And, in CBS, Inc. v FCC, 453 US 367, p. 367, 69 L Ed 2d 706, p. 709, the court commands:

"The 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."

In Russello v United States, 464 US 16, 23, 78 L Ed 2d 17, 104 S Ct. 296 (1983) (citation omitted), and Keene Corp. v United States, 508 US 124 L Ed 2d 118, 113 S Ct. (1993), the court recognizes that:

"This fact only underscores our duty to refrain from reading a phrase into the statute when Congress has left it out. Where 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."

And in American Tobacco Co. v Patterson, 456 US 63, 71 L Ed 2d 748, 102 S Ct. 1534, the court again confirms it impropriety of adding to legislation, that which is not there.

"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."

In Ratzlaf v. United States, 510 US 135, 126 L Ed 2d 615 (1994), the court declares that:

"...courts do not resort to legislative history to cloud a statutory text that is clear"

In Piper v. Chris-Craft Industries, Inc., 430 US 1, 26, 51 L Ed 2d 124, 97 S Ct. 926 (1977) the court declares:

"Going 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."

And in United States v. Calamaro, 354 U.S. 351, 1 L. Ed. 2d 1394, 77 SCt 1138 (1957), the court held in response to the government’s argument that regulations may serve as the sole founding source of authority for it’s collection actions, that:

"In construing federal revenue statute, Supreme Court gives no weight to Treasury regulation which attempts to add to statute something which is not there."

Subsequently, in Water Quality Ass'n v. United States, 795 F.2d 1303 (7th Cir. 1986), where, citing and quoting Calamaro, the court added at p. 1309:

"It is a basic principle of statutory construction that courts have no right first to determine the legislative intent of a statute and then, under the guise of its interpretation, proceed to either add words to or eliminate other words from the statute's language. DeSoto Securities Co. v. Commissioner, 235 F.2d 409, 411 (7th Cir. 1956); see also 2A Sutherland Statutory Construction § 47.38 (4th ed. 1984). Similarly, the Secretary has no power to change the language of the revenue statutes because he thinks Congress may have overlooked something."

(emphasis added)

In Commonwealth Natural Resources, Inc. v. Commonwealth, 219 Va. 529, 536, 248 S.E. 2d 791 (1978), at pg. 795, the court writes:

"A cardinal rule of statutory construction is that a statute be construed from its four corners and not by singling out a particular word or phrase.”

Petitioner simply argues that Section 7608, subsections (a) and (b), should be applied by the courts as written. The lower courts inexplicably reject that truth.

In Gould v. Gould, 245 U.S. 151, 38 S.Ct. 53, 153 (1917), the court held:

“But in statutes levying taxes the literal meaning of the words employed is most important, for such statutes are not to be extended by implication beyond the clear import of the language used. If the words are doubtful, the doubt must be resolved against the Government and in favor of the taxpayer”. (emphasis added)

In Hassett v. Welch., 303 US 303, pp. 314 - 315, 82 L Ed 858. (1938), the court again affirms the concept of a limited government, of clearly established powers, that if not specific and clear, should not be allowed to operate in favor of the government, to the disadvantage of the taxpayer:

"In view of other settled rules of statutory construction, which teach that a law is -presumed, in the absence of clear expression to the contrary, to operate prospectively; that, if doubt exists as to the construction of a taxing statute, the doubt should be resolved in favor of the taxpayer..."

And finally, in Greyhound Corp. v. United States, 495 F2d 863, the Court similarly commands,

"Doubt relative to statutory construction should be resolved in favor of the individual, not the government"

It is the Petitioner’s belief and legal argument, that the federal courts should simply apply Title 26 USC Section 7608 as it is actually written.

Jurisdiction By “appropriate process”

The jurisdiction of the district courts to enforce internal revenue Summons is established under Title 26 U.S.C. Sections 7402(b) and 7604(a). Both of these statutes provide that the “district court … shall have jurisdiction by appropriate process”. The requirement for “appropriate process” to be established under these sections, in order for the district court to hold jurisdiction over the enforcement of a Summons issued by an Internal Revenue Service employee, is undeniable.

Under Title 26 U.S.C. Section 7608(a), any Internal Revenue Service agent, like Agent Hunter in the instant dispute, is authorized to issue and serve a Summons, but only in regards to Subtitle E investigations pertaining to commodities subject to tax.

Under 7608(b), only “criminal investigators of the intelligence division” are authorized to issue and serve Summons under Subtitle A. In the instant dispute, Agent Hunter, who is not a “criminal investigator”, improperly issued and served an unauthorized Subtitle A Summons not related to the investigation of liability derived from or relating to commodities subject to tax under Subtitle E.

The required “appropriate process” was violated by the Revenue Agent’s misuse of statutory authority, who unlawfully issued and served a Subtitle A Summons that she is not authorized in law to issue and serve.

This improper misuse of the statutes by the agent, destroying the appropriate process necessary for the district court to hold jurisdiction over these matters, has been overlooked, or has been erroneously ignored, in the Orders and Opinions of this case.

Authority Of The Magistrate

The Magistrate himself invalidated the required “appropriate process” necessary for the District Court to hold jurisdiction, by usurping the authority of the District Court, and issuing a purportedly final Order to conclude the initial hearing (before the Magistrate) on Aug. 23, 2007. Again, rather than properly issuing a report and recommendation in the form of a “proposed findings of fact and a proposed disposition” as required under Title 28 Section 636(b)(1)(B) and (C), the magistrate instead issued an Order of the District Court, as shown on the docket sheet of the case, that he proceeded to enforce himself without further review by the district court before enforcement took place. By exceeding his statutory authority and usurping the authority of the district court, the Magistrate judge completely invalidated the “appropriate process” necessary, and required, for the Court to subsequently hold jurisdiction over the dispute. This fact has been overlooked and ignored by the lower courts.

The Magistrate himself further invalidated the “appropriate process” required for the District Court to subsequently hold jurisdiction over these matters to enforce the Magistrate’s action, by failing to provide the pro se litigant with the required Notice of his rights to object within 10 days to the Magistrate’s decision, see Wells v. Shriners Hospital, 109 F.3d 198, 200-201 (4^th Cir. 1997), and/or the consequences of failing to do so, see Wright v. Collins, 766 F.2d 841, 846-847 (4^th Cir. 1985). This requirement, laid on the courts, to give Notice of objection and appeal rights to pro se litigants, has long been recognized by the courts as part of the “appropriate process” necessary to the administration of justice when dealing with these issues in this type of dispute between an individual citizen and the government.

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 magistrates when dealing with pro se litigants within IRS summons enforcement proceedings. Providing these Notices was part of the necessary “appropriate process” required to be established in order for the district court to subsequently hold lawful jurisdiction to uphold the actions of the Magistrate. These facts have been overlooked and ignored by the court.

Noticeably lacking under Title 28 U.S.C section 636 (a), granting the Magistrates authority and legal powers to act on behalf of the district courts, is any authority to act under Title 26, and none specifically established there to enforce an IRS Summons issued under Subtitle A of Title 26. The authority to enforce the Summons comes only from the establishment of the required “appropriate process”, specified as necessary under Title 26 U.S.C. §§ 7402(b), 7604(a), and Title 28 U.S.C Section 636 (b).

The Order issued by the Magistrate on Aug. 23^rd, usurping the authority of the district court, and improperly ordering the Summons to be enforced on Petitioner without further court review, done without giving any required Notice of appeal rights to the pro se litigant, was clearly issued improperly by the Magistrate, and not lawfully under the authority of 26 U.S.C. Sec. 7604(b). This again, further destroyed the required “appropriate process”, and should have been recognized by the lower courts as acting to subsequently remove jurisdiction over these matters from within reach of the district court bench. This fact has been overlooked or ignored by the court.

Powell As Erroneous Precedent

Additionally, Powell v. United States, 379 U.S. 48 (1964), was not the proper precedent for the Magistrate to adopt and apply to settle this dispute, because Powell is an inappropriate and improper decision to apply to the circumstances present in this action.

In Powell, the court did not consider, BUT 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. Since Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538 (1911), it has been consistently recognized by the courts that corporations do not possess any 5^th Amendment right to a protection from self-incrimination.

Therefore, 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 to compel the production of books and records and testimony, 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 v. United States decision.

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. The Magistrate refused to even take these issues into consideration, and improperly avoided doing so by invoking the corporate Powell decision where those 5^th Amendment rights were never considered, because they did not exist to be considered in that case.

In so doing, the Magistrate thereby effectively circumvented all consideration for the Petitioner’s 4^th and 5^th Amendment rights in the instant matter, while also refusing to consider whether or not it was even possible that those rights would somehow be impacted or affected by the Order being issued.

By invoking the corporate Powell 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 Fourth and Fifth Amendment rights of the Petitioner as a citizen (rather than a corporation as in Powell).

The Court should note that the issue is not whether 4^th or 5^th Amendment rights are, or would be, deemed by the Court to be superior to the government’s interests in discovering tax liability, but simply whether or not the Court erred in ruling while refusing to even consider any potential constitutional issues that might arise or be touched by the Order, and while refusing to assess the potential “impact” of the ruling and Order on those Amendments’ rights of the Petitioner. Keeping in mind the fact that a 5^th Amendment right did not exist to be considered in the Powell precedent invoked by the Magistrate, but which right does exist, and should have been recognized and assessed by the court in its decision in the instant dispute.

It is erroneous for the lower court to use that corporate precedent, where the corporation did not possess any Fifth Amendment rights to take into consideration, to compel the production of the books and records and the testimony of an individual citizen, like the Petitioner, under circumstances where his or her Fourth and Fifth Amendment rights do exist, are indeed applicable, and did indeed demand addressing and consideration for the impact to them by the events in process before any ruling was made or Order was issued. These facts and this Wilson decision have been overlooked or ignored by the lower courts in this case.

Instead of addressing and considering further the impact that the enforcement of the Summons might have on those constitutional rights of the Petitioner, the Magistrate declared he didn’t understand the Petitioner’s objections, but nevertheless, immediately ruled against Petitioner on the spot, ordering him to give up those constitutional rights or face pain of indeterminate imprisonment. For the Magistrate to rule while admitting that he did not understand the issues raised and presented, and without making or taking further consideration for the issues raised in objection concerning the constitutional rights of the Petitioner, was reversible error.

The government has averred from the beginning that the allegations being investigated are potentially criminal allegations that carry the possibility of criminal charges being filed against the Petitioner as a result of the testimony, information, books and records that the Petitioner has been forced to make and provide, and turn over to the Revenue Agent under the Magistrate’s Order.

Fifth Amendment Rights Issues

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).

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 U.S. 616, at 631-32 (1886).

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).

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 this Wilson decision that Powell was decided on the basis of liability alone, without consideration for the Fifth Amendment rights of the summoned party to a protection from self-incrimination, or the Fourth Amendment’s guarantee of security for “papers”.

Ultimately, what the Supreme Court has directed in matters of this nature, 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. 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.

It was improper, inappropriate, and erroneous for the Magistrate to invoke United States v. Powell, a decision taken regarding the compelled 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 effectively seize control of the Petitioner’s constitutionally secured papers, and Order the production of his personal books and records, and to compel his testimony 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 making any ruling or issuing any Order, and subsequently ordering its enforcement without further judicial review or appeal. These facts have been overlooked or ignored by the court in its rulings in this case.

First National As Erroneous Precedent

The government argues that under First Nat’l Bank of Atlanta, 628 F.2d at 873, “it is within the court’s discretion to treat a magistrate’s order as a proposed disposition where the magistrate entered a final judgment without authority”, but that is not provided for in written law and directly contradicts the true line of applicable precedents as established and shown herein. Because it is not explicitly provided for in the actual written words and language of the statutes (see Title 28 U.S.C. Section 636), it thereby constitutes only pure judicial legislation. As regards judicial legislation, the Supreme Court has made it clear:

“To hold 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 US 1, pp.196-198, 45 L Ed l041

Further, the cite and invocation of the First Nat’l Bank of Atlanta case by the government and the district court bench in this matter is inappropriate because of the dissimilarity of circumstances between that case and this one, and is therefore erroneously invoked in the instant matter. In that case (First Nat’l) the Magistrate’s error was DISCOVERED AND CORRECTED by the district court bench within 10 days, 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. Most importantly, and critically, before any real damage had been done by the Magistrate’s error to the litigant’s rights or case. UNLIKE THE CIRCUMSTANCES IN THIS CASE, where the unlawful nature of the Magistrate’s ORDER was not discovered and corrected before enforcement occurred, but nearly three months after it was enforced by the Magistrate and Petitioner’s testimony was compelled and his books and records were ordered by the Magistrate to be turned over to the government at the Ordered enforcement appointment, under threat of pain of indeterminate imprisonment.

In the instant dispute now before the court, the controlling factual circumstances are quite a different set of circumstances than were present then in First Nat’l. In this dispute the district court did not discover, and act to correct the allegedly harmless error of the Magistrate before enforcement occurred and irreparable damage had been done, but nearly 3 months later. First Nat’l Bank of Atlanta is not an applicable authority because of the dissimilar circumstances within the two district court’s bench’s timing in acting to correct the Magistrates’ errors. In First Nat’l the magistrate’s error was discovered before enforcement occurred, and therefore that case is not relevant or properly applicable to the instant dispute, where discovery of the Magistrate’s error did not occur until after enforcement had already been completed and irreparable damage to the Petitioner’s rights was inflicted. This was a further violation of the statutorily required “appropriate process”, necessary for the district court to possess in order to subsequently hold jurisdiction.

The legal record of this case is clear and well documented by the court’s own records, which are inexplicably ignored within the district court’s holdings. The face of the document issued August 23^rd, 2007 by the Magistrate is itself styled as an ORDER of the District Court. The district court’s own Docket Sheet for this case is irrefutable, and also shows an Order emanating from the Magistrate on August 23^rd, 2007. It clearly shows the Magistrate issued an Order on August 23^rd, 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 district court to subsequently hold jurisdiction to uphold the Magistrate’s action.

By this act alone, of usurping the authority of the district court and himself issuing an unauthorized and therefore improper Order, 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 Magistrate himself invalidated the “appropriate process” required for the District Court to subsequently hold jurisdiction to act further. All of these facts have been overlooked or ignored by the courts in their rulings.

SUMMARY AND CONCLUSION

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. A summons enforcement Order is a final dispositive and appealable order, Reisman v. Caplin, 375 U.S. 440, 449 (1964), beyond the authority of a magistrate judge to issue. United States v. First Nat'l Bank, 628 F.2d 871, 873 (5th Cir. 1980); United States v. Wisnowski, 580 F.2d 149 (5th Cir. 1978). 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). All of these conflicting precedental holdings have been erroneously ignored by the lower and Circuit Court benches, and have not been addressed by the Circuit bench members in their Opinion.

Additionally, the district court Magistrates have a legal duty, that was failed in this case, to provide the pro se litigant with the required Notice of the pro se litigant’s rights to object within 10 days to the Magistrate’s decision, see Wells v. Shriners Hospital, 109 F.3d 198, 200-201 (4^th Cir. 1997), and to notify the pro se litigant of the consequences of failing to do so, see Wright v. Collins, 766 F.2d 841, 846-847 (4^th Cir. 1985).

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 and himself enforcing an Order as a final Order of the District Court, without oversight or review by the district bench before enforcement of the Order, and without giving required notice of appeal rights to the pro se litigant, invalidated the subsequent jurisdiction of the District Court, which is dependent upon “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 lawful jurisdiction or authority to continue with proceedings and subsequently entertain objections to the Magistrate’s action, or to issue any other Order upholding the Magistrate’s ruling or actions.

Finally, the Magistrate has erroneously invoked and relied upon the Powell v. United States case as precedent to settle this matter. Powell was a decision involving the compelled production of a corporation’s books and records that did not constitute a citizens constitutionally “secure” “papers” as in the instant matter. Additionally, 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 because corporations don’t possess a Fifth Amendment right to a protection from self-incrimination (see Wilson v. United States, supra).

The Petitioner in the instant matter however, a citizen, unlike the corporation in Powell, does possess a 5^th Amendment constitutional right to a protection from compelled self-incrimination, and his personal “papers” are “secured” under the 4^th Amendment, and the District Court inexplicably refused to address or even acknowledge the difference between the two sets of facts and circumstances in the two different cases, ignoring even its own invocation of the proper controlling precedents (recounted herein) made in its first Order of November 6^th, 2007.

The Supreme Court has long held that:

“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. Topeka, 20 Wall. 655, and Parkersburg v. Brown, 106 U.S. 487, 1 Sup. Ct. 442.” Pollock v. Farmer’s Loan & Trust Co., 157 U.S. 429, 599 (1895)

It would appear from the events that have transpired in the instant matter that the lower courts have lost sight of this constitutional reality. They appear to no longer believe in the rule of law, the proper invocation of applicable precedent, or the constitutional philosophy providing for a representative government of limited, specifically enumerated powers that are written in law and that are not to be exceeded, abused, or misused by members of the government or its employees.

PRAYER FOR RELIEF

The foregoing considered, the Petitioner prays this Honorable Court will grant this Petition for Certiorari.

Respectfully submitted,

________________________

Thomas T. Scambos, Jr.

Jeffersonton, VA 22724

Petitioner, Pro Se