Freaks Macintosh Archive/Freaks Macintosh Archive.bin/Freaks Macintosh Archives/Textfiles/zines/DNA/DNAV1I4.sit/DNAV1I4/ARTICLE.017

Text File | 1993-09-06 | 27KB | 668 lines

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                            -= The Sixth Column =-

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                        Federal Court Indirectly Proves
                     No Law Requires A Person To File/Pay
                            the Federal Income Tax
                     ------------------------------------

What you are about to read is excerpted from Irwin Schiff's book "The Federal
Mafia".  Please take careful note of how the Federal Magistrate Judge (court
clerk) desperately tries to trick Schiff into giving the court jurisdiction in
the case.

This article might be a little long, but please take some time to read it, it
will shock you.

<<Beginning Excerpt>>
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-

Proof that no "liability"
for income taxes exists
anywhere in the internal
revenue code

     While I stated in The Great Income Tax Hoax that no section of the Code
made anyone liable for income taxes, I was asking my readers to take my word
for it - or to check the Code out for themselves.  But now, thanks to my
latest criminal prosecution and to my two civil law suits, my readers won't
have to do either.  As a result of that litigation, the government has
supplied me with all the information that anybody should need.

                        A U.S. Arraignment - Nazi Style

     On April 5, 1985, while on a media tour to promote my recently released
book, The Great Income Tax Hoax, three IRS agents pounced upon me as I was
about to enter the studios of radio station KFBK, Sacramento, California, for
a scheduled talk show appearance.  They pinned me against the wall, handcuffed
and arrested me.  They all carried concealed pistols, which they were not
authorized to carry (per section 7608) except in connection with the
"enforcement of Subtitle E and other laws pertaining to liquor, tobacco, and
firearms."  But what does violating one more law mean to the IRS?

     I was subsequently released on bond, and on April 17, I appeared for
arraignment before Magistrate Owen Eagan in Connecticut Federal District Court
in Hartford.  The government had charged me with three counts of tax evasion
for the years 1980, 1981 and 1982 and one count of failing to file a corporate
tax return for 1980.  However, on April 8th, approximately 10 days prior to my
arraignment, I submitted a written motion to the court asking it to dismiss
the indictment due to the court's lack of subject matter jurisdiction.  I
supported this motion with two memorandums of law.  One memorandum cited
sufficient case law to remind the court of two things it already knew, (1)
that whenever a federal court's jurisdiction is challenged the party invoking
its jurisdiction (in this case the federal government) must prove it by clear
and convincing evidence, and (2) that a federal court's jurisdiction can never
be assumed by the court.  The two short excepts from two of the cases in my
Memorandum of Law illustrate this:


              Jurisdiction cannot be assumed by a District Court
              nor conferred by agreement of the parties, but it is
              incumbent upon plaintiff to allege in clear terms, the
              necessary facts showing jurisdiction which must be
              proved by convincing evidence.

              -Harris v. American Legion, 162 F. Supp. 700


              The authority which the statute vests in the court to
              enforce the limitations of its jurisdiction precludes the
              idea that jurisdiction may be maintained by mere
              averment or that the party asserting jurisdiction may
              be relieved of his burden by any formal procedure.  If
              his allegation of jurisdictional facts ARE CHALLENGED BY
              HIS ADVERSARY in any appropriate manner, HE MUST
              SUPPORT THEM BY COMPETENT PROOF.  And where they are
              not so challenged, the court may still insist that the
              jurisdictional fats be established or the case
              dismissed, and for that purpose the court may demand
              that the party alleging jurisdiction justify his
              allegations by a preponderance of the evidence.
              [emphasis added]
              -The Supreme Court
              McNutt v. General Motors Acceptance, 56 S. Ct. 780


     There is ample case law to support this principle that once jurisdiction
is challenged the court hs no authority to do anything but take action on that
motion.  As the Supreme Court held in The Statute of Rhode Island v. The State
of Massachusetts, 37 U.S. 709 once the question of jurisdiction is raised "it
must be CONSIDERED AND DECIDED, before any court can move one step further."
With this in mind let us see how a Connecticut District Court delt with this
issue in my case.  My motion claimed that the court lacked subject matter
jurisdiction to try me for alleged income tax crimes because:

     1. The indictment failed to identify the statute that required the filing
        of a corporate income tax return, and thus failed "to state a charge
        cognizable in the courts of the United States."

     2. "No section of the Internal Revenue Code (erroneously referred to in
        my indictment as 26 USC 7201 and 7203) makes individuals liable for
        the payment of income taxes" and so I was not required to file a
        return or pay the tax purely as a matter of law.

     3. "Section 7402 specifically grants civil jurisdiction only." I pointed
        out to the court that it was never given jurisdiction by Congress to
        conduct a criminal tax trial, because "Title 26" only conferred civil,
        not criminal jurisdiction on federal courts.  What could be plainer
        than that!

     4. The court had no jurisdiction to prosecute me (either for evasion or
        for not filing) for a tax which was not imposed pursuant to any of the
        taxing clauses in the Constitution.  That since the income tax was
        imposed neither as "a uniform excise tax in accordance with Article I,
        Sec 8, Clause 1 nor as an apportioned direct tax pursuant to Article
        1, Sect 2, Clause 3 and Article 1, Sect 9, Clause 4," a criminal
        prosecution pursuant to such a tax would be manifestly
        unconstitutional.

     I supplied the court with an eighteen page Memorandum of Law just to
support that last contention.


                          Government Fails To Respond

     In total violation of the principle explained in the three cases cited
above, both the prosecution and the courts paid absolutely no attention to my
jurisdictional claim - as shown by the following excerpts from the arraignment
tape that was supplied to me by the court.


Magistrate Eagan:
It is my understanding this morning that we were taking the criminal docket.
The first matter will be criminal number N-85-20.  This is a case that is
assigned to the Honorable Peter C. Dorsey for trial.  It is the matter of the
United States of America vs. Irwin A. Schiff.  Is that correct?

M. Hartmere, Asst. U.S. Attorney:
That's correct, your Honor.

Eagan:
And this matter is here on indictment?

Hartmere:
yes, it is your Honor.

Eagan:
And has a copy of this indictment been given to Mr. Schiff?

Hartmere:
Yes, your Honor I believe he has been provided with a copy.

Eagan:
All right, fine...

Schiff:
Your Honor, I submitted last Monday to this court and to the U.S. Attorney, a
Motion to Dismiss the indictment on four grounds of lack of jurisdiction.  So
far the government hasn't responded to that motion.  Therefore, I move for a
summary judgement on the grounds that since I filed a motion that this court
has no jurisdiction, because the income tax falls into none of the taxing
clauses of the Constitution, and because I have no liability for the tax; and
since the government hasn't responded to the contrary, I move that the
procedure here be dismissed.  However, if the government wants more time to
respond, I'll agree to giving it a continuance.

Eagan:
All right, Mr. Schiff, if you'll excuse me, we'll be seated for a minute.
I'll go through the whole procedure with you and I'll explain it to you.  [He
totally ignores the jurisdictional issue I raised in my written motion, and
which I just orally re-urged.]

Schiff:
Well before we can proceed, your Honor, I think what we have to ESTABLISH is
whether or not you have ANY JURISDICTION TO PROCEED.  Now, it's very simple.
I have in front of me Section 7402 and it very clearly says, "For general
jurisdiction of the district courts of the United States in CIVIL actions
involving internal revenue, see section 1340 or Title 28 of the United States
Code."  Now if I can show the court where it has CIVIL jurisdiction, I think
it's appropriate for the government to show the court where it has criminal
jurisdiction...

Eagan:
All right, Mr. Schiff, if you'll sit down for just a second please.  Mr.
Schiff this is a preliminary hearing, this is not a trial of the matter nor am
I here to hear motions addressed to jurisdiction.  I will give you sufficient
time to address your motion to the trial judge and he will be the one...Mr.
Schiff, please...

     [Eagan again totally ignores my claim that the court lacks jurisdiction
to continue, even though the government has yet to utter a single word in its
own behalf.  If Eagan had no authority to address this issue, then he should
have re-scheduled it before someone who did.  But my written motion was
submitted to the court days before my "arraignment," so the Honorable Peter C.
Dorsey obviously knew that it had to be held before someone who could deal
with the subject.  The reason that the court CHOSE THIS METHOD TO AVOID
DEALING WITH THIS ISSUE, will soon become apparent.  But let's continue with
my "arraignment."]

Schiff:
Your Honor, are you going to ask me to plead?

Eagan:
Yes, I am.

Schiff:
You'll be asking me to plead to a legal fiction...to plead to something that's
not a crime...Suppose Michael Hartmere indicted me for eating a banana, would
you expect me to plead guilty or not guilty to that?  And if I pleaded not
guilty, would I not be suggesting that I believed that eating a banana was a
crime?  Before we continue...

Eagan:
No, before we continue you will sit down and you will listen to my explanation
of what we are doing.  Please be seated, Mr. Schiff.


     [The court and the prosecutor (actually, in this case, one in the same)
were conspiring against me to plead to a legal fiction so that the United
States could illegally prosecute me.  For example, suppose that Michael
Hartmere, the U.s. prosecutor who fraudulently engineered my indictment, was
similarly able to pull the wool over the grand jury's eyes and get it to
indict me for having eaten a banana.  Suppose further, that I had never eaten
a banana in my life.  Would that mean that because of that fact at any
subsequent arraignment, I should simply plead not guilty, or that I could be
"required" to EVEN ENTER A PLEA for that "crime"?  Why should I needlessly
have to defend myself (which takes both time and money) from charges that I
was guilty of doing something that I didn't do, but which was not a crime
anyway?  By pleading "not guilty," one also subjects himself to the authority
of (and in this case a hostile one) a federal judge who, once he has you in
his clutches, (ie. become subject to his "jurisdiction") can exercise
arbitrary and awesome power over you.  He can establish unrealistic bail
requirements, decide that you should be confined right through your trial and
keep you in jail - WITHOUT A TRIAL - by holding you in continuous contempt of
court.  And once you are under the court's jurisdiction (which we can only
occur after you submit to its jurisdiction by refusing to challenge it [and
possibly prevailing] by simply entering a standard plea) you can indeed be
found guilty of something you never did and which is not even a crime.  This
can occur because once the court assumes jurisdiction, it is in a position to
make false rulings on matters of law (in which defendants are also denied oral
argument) and falsely charge the jury on the law itself - which occurs all the
time in tax cases.

     In addition, the prosecutor can totally fabricate its prosecution by
using perjurous testimony - a perfectly routine procedure in all "tax
protestor" cases.  To put it in the context of my banana example (though a
better illustration might be, being accused of speaking ill of the President),
once you plead not guilty to eating a banana, the government is now in a
position to get witnesses to falsely testify that you did, while the court is
now in a position to falsely instruct the jury that eating a banana is a
crime.  Since a jury is made up of individuals who generally know ABSOLUTELY
NOTHING ABOUT TAX LAW, they can be made to believe anything the "judge"
decides to tell them.  So, in case you thought my banana illustration was a
little far fetched, this is PRECISELY what happens in all "tax protestor"
cases.  Such people are all tricked at their arraignments, and then
fraudulently prosecuted for doing something that is no more illegal than
eating a banana.  But let's leave the subject of bananas and get back to my
"arraignment."]


Eagan:
Now, before we continue you will sit down and you will listen to my
explanation of what we are doing.  Please be seated Mr. Schiff.

Schiff:
Well, I think that jurisdiction has to be established your Honor...

Eagan:
All right...

Schiff:
And I think the record ought to show...

Eagan:
The record is going to show everything that should be shown.  Mr. Schiff, my
name is Owen Eagan.  I am the United States magistrate.  I am here for the
preliminary purposes of taking a plea in this case.

Schiff:
May I just ask is this an adversary...

Eagan:
You may shut up for just a second and let me finish.  I'm here to take a plea
to this particular case.  The only plea that I can and will accept is a plea
of not guilty.


     [In the above exchange I sought to get Eagan to admit that an arraignment
is an adversary proceeding between me and the government, with the court
merely "judging" between us, based upon the legal arguments we make.  I had
already made (and legally supported) an argument that the court had no
jurisdiction - which ALSO INCLUDED EAGAN'S AUTHORITY TO ARRAIGN ME!
Obviously, that authority had to be established before Eagan could utter ONE
ARRAIGNMENT WORD!  The court was thus duty bound to hear contrary arguments
from my adversary (the government) and to render its decision accordingly.
But it is clear from the arraignment tape (as my trial itself would prove)
that my adversary WAS ALSO THE COURT!  Note Eagan's comment that he was only
there to take "a plea of not guilty."  But the court was on notice that I
intended to argue jurisdiction.  So why wasn't it prepared to hear it?  But
you already know the answer to that.  So the court concocted a ruse to avoid
addressing the issue as the law required it to do.]

     Continuing with the "arraignment"...

Schiff:
I'm perfectly willing to plead guilty.  I will plead guilty.  Can I plead
guilty?

Eagan:
No, you may not.

Schiff:
Why can't I?

Eagan:
Because I have no authority to take a guilty plea.

Schiff:
Well then let's get a judge in here who can accept a guilty plea.

Eagan:
Mr. Schiff, please sit down at this time...please.

Schiff:
I'M PERFECTLY WILLING TO PLEAD GUILTY TO SAVE THE UNITED STATES AND MYSELF THE
EXPENSE OF THE TRIAL.  I ADMIT, YOUR HONOR, THAT I HAVEN'T FILED AND I HAVEN'T
PAID, AND IF I HAVE A TAX LIABILITY AND IF MR HARTMERE WILL SHOW THIS COURT
WHERE I CAN HAVE A TAX LIABILITY (AS A MATTER OF LAW) I'M PREPARED TO PLEAD
GUILTY.

Eagan:
All right, now I've given you your opportunity to talk so you please sit down
and listen...

Schiff:
But I'm prepared to plead guilty.  [Can you believe that this is actually
happening in an American court?]

Eagan:
Please sit down.


     [Suppose I had been charged with murder, rape, bank robbery,
counterfeiting, arson, mail fraud or any other crime you can think of and I
asked the court, "Look, just show me the law which makes what I'm charged with
a crime, and I'll plead guilty."  Don't you think that under those
circumstances any LEGITIMATE court would have produced the law?  In my case,
"the law" was the Code section that made me "liable" for the tax.  Yet neither
the government nor the court COULD or would produce the law!!!]

Eagan (continuing):
It's my obligation today to take a plea to an indictment that was handed down
by a grand jury on April 3 of this year in New Haven.  The only authority I
have is the authority to accept a plea of not guilty...and that is the only
authority I have.  My other OBLIGATIONS ARE TO MAKE SURE that you get a copy
of the charging documents; THAT YOU UNDERSTAND WHAT THE CHARGE IS; and you
understand what the maximum penalty might be.  Now the way that I accomplish
this is to have the U.S. Attorney explain to you and to me what the charges
are and what the maximum possible penalty is.  After that, I must advise you
of what your rights are.  [But apparently not of my right to be tried only by
a court that has jurisdiction]


     [Additional explanation followed in which Eagan explained that he would
cover such things as: the Speedy Trial Act, the filing of pre-trial motions,
my competency to stand trial, whether I had an attorney, and whether he had
any conflict of interest.  Following that, I again asked of the court...]


Schiff:
Is this an adversary or inquisitory proceeding?

Eagen:
Well, the procedure is a preliminary procedure in a criminal process.  All
criminal process is adversary in nature.

Schiff:
Well, who is my adversary in this courtroom, your Honor?

Eagan:
Your adversary is the United States government.

Schiff:
Is that Mr. Hartmere?

Eagan:
Hartmere is only an agent of the government.  He is not your adversary.

Schiff:
But he represents my adversary, is that correct?

Eagan:
He represents the government.

Schiff: Therefore, I assume that if I raise an issue, before you can judge, my
adversary would have to respond?

Eagan:
No, that's not so.  Dispositive motions - and that's what you are talking
about, have a time and a place.  [I hadn't the vaguest idea what he meant by a
"dispositive motion"  But I knew that Eagan wasn't telling the truth about the
issue of jurisdiction which I knew was validly before the court.]  Once the
plea is entered, dispositive motions may be filed and they will be addressed
to the trial judge.

Schiff:
If you are telling me that you can only take a not guilty plea, I could have
mailed it on a postcard.

Eagan:
No, the rules require that a personal appearance...Rule 10...

Schiff:
Why?

Eagan:
That's the way Congress deems it legal.

Schiff:
But this is supposed to be my hearing, isn't that right?  It's not a court
martial?

Eagan:
This is a preliminary hearing for the purpose of taking a not guilty plea.

Schiff:
But it's also a hearing to see if you have the jurisdiction to take a plea.

Eagan:
There's no question in my mind whether I have jurisdiction or not.  I have
jurisdiction.


     [So here the court, without any shame at all, openly violates a
fundamental principle of federal law - it ASSUMES jurisdiction and without the
plaintiff being asked to offer any comment at all (let alone assume its burden
of proof) on the matter!]


Schiff:
Where do you have it from?

Eagan:
I don't think I have to sit here and explain it to you Mr. Schiff.  Mr.
Schiff, please sit down and we're going to go through the normal procedure...

Schiff:
Your Honor, the courts have ruled that when the issue of jurisdiction is
raised...the jurisdiction facts must be established or the case
dismissed..."Jurisdiction can not be assumed but must be clearly shown"
Brooks v. Yalkie 200 F2d 663.  Sir, you cannot assume jurisdiction.  When I
raise the issue of jurisdiction, the government (my adversary) must prove you
have it.  [So far the government, my adversary, hasn't uttered one word in
opposition to my four claims, yet Eagan decided the matter in its favor!  Talk
about having a friend in court!]

Eagan:
For the preliminary purpose of this hearing I am denying your motion, if
that's what you want.  I have jurisdiction.  I will proceed...

Schiff:
You haven't proven it.  On what basis do you have it?

Eagan:
I don't have to prove anything to you, Mr. Schiff.

Schiff:
Your Honor, if I can prove that you have CIVIL jurisdiction pursuant to
section 7402, why don't you simply ask Mr. Hartmere to tell you where you have
CRIMINAL jurisdiction?  ISN'T THAT SIMPLE ENOUGH?

Eagan:
I think I explained this to you before.  The dispositive motions must go to
the trial judge.  The trial judge is the only one who can rule on...

Schiff:
Well, then let's get a judge in here.

Eagan:
Mr. Schiff, you are not running this court.  We will run the court in the
normal way that it has always been run, under the laws and under the
Constitution of this country.  [It's a good thing that Eagan pointed this out,
otherwise no one would have guessed it!]

Schiff:
Your Honor, I wasn't...

Eagan:
Mr. Schiff, SIT DOWN!


     [This should give you a rough idea of how justice "works" in federal
courts, as opposed to how it supposedly works in theory.  It is clear that the
court was willing to proceed even though it obviously knew it had no
jurisdiction (otherwise the court and/or the prosecutor would have offered
some proof) to do so.]

     My willingness to immediately plead guilty came up AGAIN as follows...

Schiff:
I am willing to plead guilty.

Eagan:
I don't want a guilty plea.

Schiff:
Why not?

Eagan:
Because I cannot accept a guilty plea.


     [Therefore, I should have insisted that, that was the plea I wanted to
make.  This would have forced a rescheduling of my arraignment before the
judge.  Then I could have undergone a change of heart and forced oral
argument on each of the jurisdictional issues I raised.  This is what Judge
Dorsey wanted to avoid - oral argument.  In that situation the government
would have to support its baseless jurisdictional claims in open debate, where
its reasoning could be challenged and where both its answers and the court's
would be recorded.  Judge Dorsey, for obvious reasons, wanted to make any
jurisdictional claims and statements from within the safety of his own WRITTEN
decision.  By employing that technique, both his and the government's answers
to my jurisdictional question wouldn't have to be DEFENDED IN OPEN COURT.  By
contract the court, by limiting its remarks and answers to its own written
opinion, could with relative safety and impunity, base its decisions on
arguments that were patently false, incomplete and invalidly supported.]


Schiff:
Well then let's get a judge in here who can accept a guilty plea.  Why should
I be put to the expense of a trial?  I can't afford a trial.

Eagan:
Do you want to plead guilty?

Schiff:
I WILL PLEAD GUILTY, IF THE GOVERNMENT WILL ONLY SHOW ME WHERE THE CODE MAKES
ME LIABLE FOR THE TAX.

Eagan:
NO.  You don't want to plead guilty.  What you want to do is argue.  [Can you
believe this?]

Schiff:
I don't want to argue.  I'm perfectly willing to plead guilty.  [Here, I
further reminded the court, that none of the Code sections I was charged with
violating even mention income taxes, and that the government had also refused
to address that issue too.]  Does Mr. Hartmere suggest that I am evading an
alcohol tax?

Eagan:
Mr. Schiff, you are just back at the same thing all over again.

Schiff:
Well why don't you ask him where in the (Code I am required to file an income
tax return and pay an income tax.)

Eagan:
No, I'm not going to ask him anything about that.


     And further on...

Schiff:
You want me to give jurisdiction to the court by entering a not guilty plea?
Not guilty to what?  Where's the crime?

Eagan:
Mr. Schiff, you're arguing the case.

Schiff:
I'm not arguing.

Eagan:
The proper place to argue that defense, is to Judge Dorsey and it's through a
Motion to Dismiss (which I had already filed but which the court was now
ignoring!)  Let me get on with this.  I will give you the dates where you can
argue it and to whom you can argue it.


     [First of all, I wasn't "arguing" the case.  I wasn't arguing whether I
had filed tax returns or not, or whether I had paid the taxes or not (as a
matter of fact I had already admitted to not doing either) or whether or not I
"concealed" any income that would have been "arguing the case."  I was only
arguing the issue of jurisdiction, not the case."  And an ARRAIGNMENT IS JUST
THE PLACE TO MAKE THAT ARGUMENT.  Eagan's claim that I would have an
opportunity to "argue it" later was another sham.  Once the court got by the
"arraignment" with its "magistrate" ploy, it refused to grant me oral argument
on the issue as Eagan falsely claimed it would do.  The reasons for this have
already been explained.]


Schiff:
This is the proper place to argue jurisdiction.

Eagan:
This particular proceeding is not the proper place.  [Eagan's statement was a
blatant lie as my next statement and his response prove.]

Schiff:
Jurisdiction can be raised during any part of the judicial process.

Eagan:
You raised it.  I've denied your Motion to Dismiss this case.


     [A moment before he instructed me to submit my Motion to Judge Dorsey.
Now he denies the Motion he just told me to submit.  And if Eagan only had the
authority to accept a not guilty plea, (as he repeatedly claimed) then where
did he get the authority to deny my Motion to Dismiss For Lack of Subject
Matter Jurisdiction?]


Schiff:
Without hearing from my adversary?

Eagan:
Without hearing from your adversary.

Schiff:
Then this is not an adversary proceeding?

Eagan:
I don't need to hear from your adversary to know that I have jurisdiction to
take your not guilty plea and send you on to Judge Dorsey for the trial to
take place.

Schiff:
Is this a star chamber proceeding or is this an American court where I am
supposed to have a hearing?

Eagan:
It is a courtroom where you will have a hearing.  It is not a political podium
for you to give addresses to the court.


     [Eagan's statements and admissions prove him to be wrong on all counts.
This was no "courtroom."  I was not to be given a "hearing"  And his comment
that I was turning his "courtroom" into a "political podium" was Freudian:
reflective of his obvious understanding that my "trial" was really political
in nature.]


-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
<<End of Excerpt>>


    Well there you have it, another example of "star chamber" justice -federal
style (or Nazi, have your pick).

    Remember that "Eagen" the Magistrate (court clerk) would not take a plea
of "guilty"...why?  Because they could not come up with a law that makes
anyone liable for the tax.  This is just another example of how the "Cult of
the Black Robe" (as they are commonly referred to today) covers the IRS's
proverbial ass.

    As stated before, "The Federal Mafia" and all other Schiff books will be
available at "below retail" price through DnA Systems shortly.  We will also
make available, the court recording of the above exchange for those who are
not easily convinced.




[EOF]