Donald E.
Wishart, Sui Juris
Citizen of California State,
Federal Witness and Victim
c/o 5150
Graves Avenue, Suite 12-C
San Jose [ZIP
code exempt]
CALIFORNIA, USA
In Propria Persona and
by Special
Appearance Only
All Rights
Reserved
without
Prejudice
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
UNITED STATES
OF AMERICA [sic],) Case Number CR-00-20227-JF
)
Plaintiff [sic], ) NOTICE OF
MOTION AND
) MOTION TO
DISMISS COUNT
v. ) THREE OF
INDICTMENT:
)
DONALD E.
WISHART [sic], ) Rule 48: Federal Rules
) of Criminal
Procedure (“FRCrP”).
Defendant [sic]. )
) Date:
_________ Time: __________
_______________________________)
COMES
NOW Donald E. Wishart, Sui Juris, Citizen of California State, expressly
not a “citizen of the United States” [sic], and Defendant in the above
entitled matter (hereinafter “Defendant”), to move this honorable Court for an
ORDER dismissing COUNT THREE of the instant indictment [sic], with
prejudice, and to provide formal NOTICE to all interested Parties of
same. See 26 U.S.C. 7212(a) [sic].
During a Meeting of
Creditors held in Defendant’s bankruptcy proceeding, held in July 1994 A.D.,
Defendant specifically demanded Messrs. Colbert Tang (“Tang”) and Daniel
Sutherland (“Sutherland”) to produce their lawful delegation(s) of authority,
if any, to be present at said Meeting as representatives or agents of the
United States.
Neither Tang nor
Sutherland ever produced any delegation(s) of authority to represent, or
act as agents for, the United States.
Moreover, Sutherland even refused to provide a standard business card.
Defendant hereby specifically denies that
Tang and Sutherland are now, or ever were, officers or employees of the United
States acting in any official capacity whatsoever. See Chrysler Corp. v. Brown, 441 U.S.
281 (1979), fn. 23; Act of July 1, 1862,
ch. 119, 12 Stat. 432.
Defendant hereby specifically denies that
Tang and Sutherland are now, or ever were, “collectors, or other officers of
the revenue or customs”. See 28 U.S.C. 547(3), as
discussed in Defendant’s FIRST
CROSS-COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, previously filed
in the instant case, and now pending before this Court.
Defendant hereby specifically denies that
Internal Revenue Code (“IRC”) § 7212, and 26 U.S.C. 7212, are
one and the same.
Defendant hereby specifically denies that 26 U.S.C 7212 has ever
been enacted into positive law, as such.
Defendant hereby specifically denies that any
of the provisions of IRC subtitle F have ever
taken effect. See IRC § 7851(a)(6)(A).
Defendant hereby specifically denies that
IRC § 7212 has ever
taken effect, because it falls within subtitle F.
Defendant hereby specifically denies that
IRC § 7851 has ever
taken effect either, because it also falls within subtitle F!
The consistent federal legislative
practice is to utilize the term “this title” [sic] to refer to a Title
of the United States Code (“U.S.C.”), whether enacted into positive law, or
not. See Act of June 25, 1948, as
amended, enacting Title 28,
U.S.C., into positive law; the term
“this title” therein refers to Title
28, U.S.C.
Defendant specifically denies that the
above stated provisions of Title
26, U.S.C., and of the IRC, are clear and unambiguous enough to
survive the test for vagueness established by the U.S. Supreme Court. See Connally v. General Construction
Company, 269 U.S. 385, 391 (1926): guess
at its meaning, and differ as to its application.
The income tax provisions of the IRC are
void for deliberate and premeditated vagueness. See Nature and Cause Clause, Sixth Amendment.
Defendant specifically denies that any
substantive, legislative, implementing regulations have ever been
promulgated for IRC § 7212. See alleged authority to issue regulations,
in general, at IRC § 7805,
which falls entirely within subtitle F (roughly
§§ 6000 thru 8000).
Defendant specifically denies ever having
authored or issued, whether in writing or verbally, any threats of bodily harm
to either Tang or Sutherland.
Defendant specifically denies ever corruptly
endeavoring to intimidate or impede any officer or employee of the United
States, acting in any official capacity under “this title” [sic].
Defendant specifically denies ever by
force endeavoring to intimidate or impede any officer or employee of the
United States, acting in any official capacity under “this title”.
Defendant specifically denies ever by
threats of force endeavoring to intimidate or impede any officer or
employee of the United States, acting in any official capacity under “this
title”.
Defendant specifically denies that Tang
and Sutherland ever executed lawful Appointment Affidavits. See Standard Form 61, U.S. Office of Personnel
Management, FPM Chapter 296 (61-108:
Prior Edition Usable); 5 U.S.C. 3331.
Appointment Affidavits properly executed
by Tang and Sutherland do not, and cannot, exist as a matter of Law. See related statute at 5 U.S.C. 2903, as
cited on Standard Form 61 supra.
Defendant specifically denies that Tang and
Sutherland, as employees of the Internal Revenue Service (“IRS”), were ever delegated
any lawful authority(s) to administer the United States internal
revenue laws within the territory known as California State.
Defendant
argues, on the basis of demonstrable and
unrebutted evidence, which has already been admitted into evidence in numerous
federal and State courts, that the terms “internal” and “Internal” mean “municipal”,
i.e. limited to the territory and other property over which the United
States (federal government) has exclusive legislative jurisdiction. See 1:8:17 and 4:3:2 in the U.S. Constitution; and 52A C.J.S. "Law",
pages 741, 742.
Pursuant to 1:8:17 and 4:3:2 supra, Defendant
specifically denies that the United States (federal government) has exclusive
legislative jurisdiction within the territory known as California State, with
the sole exception of federal enclaves lawfully ceded to the United States
(federal government) by Acts of the California Legislature and of the Congress
of the United States.
Defendant specifically denies that any
Agreement on Coordination of Tax Administration (“ACTA”), consummated between the
Commissioner of Internal Revenue and the California Franchise Tax Board, is or
ever was a lawful contract authorizing the IRS to administer internal
revenue laws within the territory known as California State. See Title 31, U.S.C., in toto,
which has been enacted into positive law; 5 U.S.C. 556(d): burden of proof falls upon the proponent of
any rule.
Defendant specifically denies that Tang
and Sutherland ever enjoyed lawful delegations of authority to
administer “this title”, whether said term refers to Title 26, U.S.C., or to the
IRC proper, for all of the above stated reasons.
INCORPORATION OF EXHIBITS
Defendant hereby incorporates by
reference, as if set forth fully herein, the two (2) documents styled “State of
California Uniform Commercial Code -– Form UCC-1” and “Private Security
Agreement ‘True Bill’” transmitted via Certified U.S. Mail to Tang and Sutherland,
respectively, on or about July 21, 1996.
See Defense Exhibits
“I” and “J” filed concurrently herewith;
and Craig v. Missouri, 29 U.S. (IV Pet.) pages 410, 433-436
(1830). See also “indictment” at page 4,
lines 12-13.
SPECIFIC DENIALS
Defendant specifically denies that
Exhibits “I” and “J” supra are “lien documents” [sic] because
Defendant never executed them, nor did Defendant ever file them in any public
record before now, nor do they exhibit either the form or the substance
required to perfect a lien.
Furthermore, Tang and Sutherland could
have escaped any and all liability(s) simply by rebutting said documents,
point-by-point; but, they both chose
instead not do so, and to fall silent, thus activating estoppel as to the
contents of said Exhibits. See U.S.
v. Tweel, 550 F.2d 297, 299 (5th Cir. 1977) and Carmine v.
Bowen, 64 A. 932 (1906) (silence is fraud; silence activates estoppel.)
Defendant also specifically denies that
Exhibits “I” and “J” ever caused any real damage(s) or injury(s), monetary or
otherwise, to the respective personal or property rights of Tang and
Sutherland, and Defendant denies that said Exhibits ever could have done
so, by law.
Defendant hereby offers to prove -- upon
discovery of a certified transcript of the panel’s proceedings -- that persons
alleging to be attorneys for the government did perpetrate a fraud upon this
Court, and also upon a panel of federal citizens, first by stating that “these
are lien documents” (or words to that effect), and then by indicting Defendant
on the basis of documents which said persons knew, or should have known,
were NOT “lien documents” [sic].
Lastly, Defendant specifically denies that
said documents, in and of themselves, caused any damage(s) or injury(s) that
obstructed or otherwise impeded -- corruptly, by force, or by threats of
force [sic] -- the due administration of the IRC, or of 26 U.S.C.
CONCLUSIONS
COUNT THREE of the document alleged to be
the “indictment” in the instant case, assumes facts not in evidence, and also
facts which do not exist, and can not exist, for all of the above
stated reasons.
Lex non cogit ad
impossibilia. The Law does not, and cannot, compel the doing of any
impossibilities. Confer at same in Black’s
Law Dictionary, Fifth Edition (With Pronunciations).
Tang and Sutherland’s silence, in the face
of Defendant’s lawful demands for their delegation(s) of authority, constituted
fraud and activated estoppel. U.S. v.
Tweel supra. Both Tang and
Sutherland had legal and moral duties to answer, and leaving Defendant’s
inquiry unanswered was intentionally misleading.
Therefore, neither Tang nor Sutherland can
now submit any delegation(s) of authority as admissible evidence in this
case, because they are estopped from doing so. Carmine v. Bowen supra.
The consequence is that, since 1994,
neither Tang nor Sutherland can operate as agents for the United States
(federal government), notwithstanding any Law, statute or regulation to the contrary
which may be, or already has been, asserted as being applicable hereto by any
proponent whatsoever. See 5 U.S.C. 556(d), in
chief.
REMEDY REQUESTED
All premises having been duly considered,
Defendant moves this honorable Court for an ORDER dismissing COUNT THREE of the
instant indictment [sic], with prejudice, for failing to state
any claims upon which relief can be granted.
This Court has no original jurisdiction or authority to issue any
relief, when no crime has been committed, or even properly alleged.
I,
Donald E. Wishart, Sui Juris, hereby verify, under penalty of perjury,
under the laws of the United States of America, without the “United States”
(federal government), that the above statement of facts and laws is true and
correct, according to the best of My current information, knowledge, and
belief, so help Me God, pursuant to 28 U.S.C. 1746(1). See Supremacy Clause in pari
materia with all provisions of Title 28, U.S.C. (Constitution, Laws and Treaties).
Dated: September 25, 2000 A.D.
Respectfully
submitted,
/s/ Donald
E. Wishart
Donald E.
Wishart, Sui Juris
Citizen of
California State,
Federal
Witness and Victim (18
U.S.C. 1512, 1513)
(expressly
not a “citizen of the United States” [sic])
All Rights
Reserved without Prejudice
I,
Donald E. Wishart, Sui Juris, hereby certify, under penalty of perjury,
under the laws of the United States of America, without the “United States”
(federal government), that I am at least 18 years of age, a Citizen of ONE OF the United States of
America, and that I personally served the following document(s):
NOTICE OF
MOTION AND
THREE OF
INDICTMENT:
by
placing one true and correct copy of said document(s) in first class United
States Mail, with postage prepaid and properly addressed to the following:
Office of the U.S. Attorney Office of the U.S. Attorney
280 S. First Street, Ste. 371 312 North Spring Street
San Jose [ZIP code exempt] Los Angeles [ZIP code exempt]
CALIFORNIA, USA CALIFORNIA, USA
Department
of Justice, Tax Div. Department of
Justice, Tax Div.
West. Criminal Enforcement Sec. West. Criminal Enforcement Sec.
600 “E” St., N.W., Room 5712 600 “E” St., N.W., Room 5712
Washington [ZIP code exempt] Washington [ZIP code exempt]
DISTRICT OF COLUMBIA, USA DISTRICT OF COLUMBIA, USA
Federal Public Defender’s Office Internal Revenue Service
160 W. Santa Clara St., Ste. 575 55 South Market Street
San Jose [ZIP code exempt] San Jose [ZIP code exempt]
CALIFORNIA, USA CALIFORNIA, USA
Paul Camacho Don Hallenbeck
Internal
Revenue Service Internal Revenue
Service
55 South Market Street 55 South Market Street
San Jose [ZIP code exempt] San Jose [ZIP code exempt]
CALIFORNIA, USA CALIFORNIA, USA
Mel Steiner Colbert Tang
Internal
Revenue Service Internal Revenue
Service
55 South Market Street 55 South Market Street
San Jose [ZIP code exempt] San Jose [ZIP code exempt]
CALIFORNIA,
USA CALIFORNIA, USA
Brian
Watson Ken
Whitmore
Internal
Revenue Service Internal Revenue
Service
55 South Market Street 55 South Market Street
San Jose [ZIP code exempt] San Jose [ZIP code exempt]
CALIFORNIA,
USA CALIFORNIA, USA
Dan
Sutherland Solicitor
General
Internal
Revenue Service U.S. Dept. of
Justice
55 South Market Street 10th & Constitution,
N.W.
San Jose [ZIP code exempt] Washington [ZIP code exempt]
CALIFORNIA,
USA DISTRICT OF
COLUMBIA, USA
Bay View
Federal Bank
Attention: Legal Department
2121 South
El Camino Real
San Mateo
[ZIP code exempt]
CALIFORNIA, USA
Executed on September 25, 2000 A.D.
/s/ Donald E. Wishart
Donald E. Wishart, Sui Juris
Citizen of California State,
Federal Witness and Victim (18 U.S.C. 1512, 1513)
(expressly not a “citizen of the United
States” [sic])
All Rights Reserved without Prejudice