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919 F2d 146 United States v. J McDonald

919 F.2d 146

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Richard J. McDONALD, Defendant-Appellant.

No. 88-5239.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 4, 1990.*
Decided Nov. 26, 1990.

Before PREGERSON, REINHARDT and CYNTHIA HOLCOMB HALL, Circuit Judges.

1

MEMORANDUM**

2

Richard J. McDonald appeals from the judgment of conviction entered by the district court on three counts of willfully failing to file federal tax returns in violation of 26 U.S.C. Sec. 7203. McDonald seeks reversal on the grounds that (1) the district court lacked jurisdiction; (2) the indictment failed to adequately allege a criminal offense; (3) he is not a "person" subject to federal tax laws; and (4) Congress did not have the power to enact federal tax statutes because the Fourteenth Amendment was never properly ratified.1 We affirm.

I.

3

Appellant challenges the district court's jurisdiction by contending that because he is a state citizen, the United States government lacks the constitutional authority both to subject him to federal tax laws and to prosecute him for failing to comply with these laws. Citing to Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856), appellant argues that as a white, natural born, state citizen, he is not subject to the taxing power of Congress. This argument is completely without merit.

4

As this court has made clear in the past, claims that a particular person is "not a [federal] taxpayer because [he or] she is an absolute, free-born and natural individual" constitutionally immune to federal laws is frivolous and, in civil cases, can serve as the basis for sanctions. United States v. Studley, 783 F.2d 934, 937 & n. 3 (9th Cir.1986). Appellant cannot assert that his state citizenship is predominant, and his United States citizenship subordinate, in order to escape his obligations under federal tax statutes. Kantor v. Wellesley Galleries, 704 F.2d 1088, 1090 (9th Cir.1983) (the Fourteenth Amendment "broadened the national scope of the Government ... by causing citizenship of the United States to be paramount and dominant instead of being subordinate and derivative ...," quoting Colgate v. Harvey, 296 U.S. 404, 427-428 (1935), overruled on other grounds, Madden v. Kentucky, 309 U.S. 83 (1940)).

5

Further, the district court's assertion of subject matter jurisdiction was proper under the applicable statute. Federal district courts have exclusive, original jurisdiction over "all offenses against the laws of the United States." 18 U.S.C. Sec. 3231. These offenses include crimes defined in the Internal Revenue Code. United States v. Przybyla, 737 F.2d 828, 829 (9th Cir.1984), cert. denied, 471 U.S. 1099 (1985). Indeed, as we have repeatedly held, the entire Internal Revenue Code was validly enacted by Congress and is fully enforceable. Studley, 783 F.2d at 940; Ryan v. Bilby, 764 F.2d 1325, 1328 (9th Cir.1985).

6

Thus, we reject appellant's claims and find that the district court's assertion of jurisdiction was proper.

II.

7

Appellant also challenges the sufficiency of the indictment. Appellant argues that (A) the indictment does not adequately inform him of the charges against him; (B) the word "resident" as it is used in the indictment is impermissibly vague; and (C) an indictment charging a defendant with violating only 26 U.S.C. Sec. 7203 is invalid. We do not find any of the appellant's arguments persuasive.

A.

8

Fed.R.Crim.P. 7 states that an indictment must consist of a "plain, concise and definite written statement of the essential facts constituting the offense charged." The United States Supreme Court has held that the indictment is constitutionally sufficient if it contains the elements of the offense charged, fairly informs the defendant of the charge against which he must defend, and enables him to plead an acquittal or conviction to bar subsequent prosecutions for the same offense. Hamling v. United States, 418 U.S. 87, 117 (1974). The offense of failure to file an income tax return under section 7203 consists of three elements. The government must prove that the taxpayer was required to file a return, the taxpayer failed to file a return, and the failure was willful. United States v. Poschwatta, 829 F.2d 1477, 1481 (9th Cir.1987), cert. denied, 484 U.S. 1064 (1988).

9

In this case, the indictment set out the elements of section 7203 with sufficient clarity to apprise the appellant of the charges against him and enable him to enter an appropriate plea.2 Thus, we find that the indictment fulfilled the constitutional requirements as defined by the United States Supreme Court.

B.

10

The appellant also challenges the use of the word "resident" in the indictment, which he contends violates the Hamling test because it is unconstitutionally vague. "In construing the language of an indictment, courts must be guided by common sense and practicality." United States v. Christopher, 700 F.2d 1253, 1257 (9th Cir.), cert. denied, 461 U.S. 960 (1983). Our reading of the indictment does not reveal any vagueness associated with the use of the word "resident." In the context of the sentence in which it is used, there is no possibility that the word "resident" could mean a young doctor or any of the other definitions that the appellant suggests. Further, nothing in the wording of the indictment indicates that the word "resident" means anything so out of the ordinary that the appellant would have to speculate as to its meaning, and thus be less than fully informed of the charges against him. Therefore, we find that the word "resident" as it is used in the indictment is not impermissibly vague.

C.

11

Appellant also argues that the indictment is insufficient because it only cites to section 7203, and does not refer to any other criminal statutes. We reject this argument.

12

As discussed above, the indictment met the standard set out in Hamling. It specifically alleged that the appellant's earnings were sufficient to require him to file a federal tax return, and that he failed to do so. Since the indictment set forth the elements of the offense and adequately informed the appellant of the charges against him, it was not necessary for the Government to refer to any other statute in the indictment.

III.

13

Appellant next argues that he is not a "person" as that word is used in section 7203 and 26 U.S.C. Sec. 7343, so that these statutes are not applicable to him.3 The appellant's contention has been repeatedly rejected by this court. Studley, 783 F.2d at 937; United States v. Romero, 640 F.2d 1014, 1016 (9th Cir.1981).

14

The term "person" as it is used in section 7203 and defined in section 7343 is not limited to corporations, partnerships and their employees, but also includes individuals. United States v. Condo, 741 F.2d 238, 239 (9th Cir.1984), cert. denied, 469 U.S. 1164 (1985). These statutes clearly apply to the appellant. Further, as we have previously held, the use of the word "person" in these statutes is not impermissibly vague. United States v. Pederson, 784 F.2d 1462, 1463 (9th Cir.1986). Thus, appellant's contention that he is not a person required to file income tax returns within the meaning of sections 7203 and 7343 is simply incorrect. Neither the definition in section 7243 nor the language of section 7203 excuse the appellant from his obligations under the federal tax laws.

IV.

15

Appellant's final argument consists of a claim that the Fourteenth Amendment was never properly ratified, that fraud was committed during the ratification process, so that the Amendment is void. We reject this argument.

16

The issue of whether a constitutional amendment has been properly ratified is a political question. Coleman v. Miller, 307 U.S. 433, 450 (1939). Political questions are those federal constitutional issues which the courts do not address, but rather leave to the legislative and executive branches of the federal government to resolve. Baker v. Carr, 369 U.S. 186, 217 (1962).

17

In a case that ultimately dealt with the ratification of the Child Labor Amendment to the United States Constitution, the United States Supreme Court, by way of example, discussed the ratification of the Fourteenth Amendment. The Court stated that whether the Fourteenth Amendment was properly ratified was a political question and hence was not subject to judicial determination. Coleman, 307 U.S. at 450.

18

Because the ratification of a constitutional amendment is a political question, the Secretary of State's certification that the required number of states have ratified an amendment is binding on the courts. See Leser v. Garnett, 258 U.S. 130, 137 (1922) (Secretary of State's certification that the Nineteenth Amendment had been ratified by the requisite number of state legislatures was conclusive upon the courts); United States v. Stahl, 792 F.2d 1438, 1439 (9th Cir.1986) (Secretary of State's certification that the Sixteenth Amendment was properly ratified was conclusive upon the courts), cert. denied, 479 U.S. 1036 (1987).

19

In the case of the Fourteenth Amendment, Secretary of State William J. Seward certified that the required number of states ratified the Amendment on July 28, 1868. 15 Stat. 708 (1867-69). In accordance with the authority cited above, we are bound by Secretary Seward's finding. The fact that the appellant is alleging fraud in the ratification process does not alter our conclusion. Stahl, 702 F.2d at 1440.

V.

20

Finally, the Government addresses the issue of venue in its brief. As this court has previously held, the proper venue for a prosecution under section 7023 is either the district in which the defendant's residence is located, or the district which encompasses the collection point where the return should have been filed. United States v. Clinton, 574 F.2d 464, 465 (9th Cir.), cert. denied, 439 U.S. 830 (1978). In this case, the appellant resided in North Hollywood. Thus, in accordance with our holding in Clinton, the Central District of California was the proper venue for this action.

21

AFFIRMED.

*

The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Fed.R.App.P. 34(a)

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

We note that the appellant challenges the validity of the Fourteenth Amendment, not the Sixteenth Amendment, as is common in tax protester cases

2

Count One of the indictment reads as follows:

COUNT ONE

[26 U.S.C. Sec. 7203]

During the calendar year 1982, defendant RICHARD J. MCDONALD, who was a resident of North Hollywood, California, had and received gross income of approximately $35,096.00. By reason of having and receiving that amount of gross income, the defendant was required by law, following the close of the calendar year 1982, and on or before April 15, 1983, to make an income tax return to the District Director of the Internal Revenue Service for the Internal Revenue District at Los Angeles, in the Central District of California, or to the Director, Internal Revenue Service Center, at Fresno, California, or such other proper officer of the United States, stating specifically the items of his gross income and any deductions and credits to which he was entitled. The defendant, well knowing and believing these facts, willfully failed to make an income tax return to the District Director of the Internal Revenue, to the Director of the Internal Revenue Service Center, or to any other proper officer of the United States.

The other two counts differ only as to the date of the offense and amount of income at issue.

3

26 U.S.C. Sec. 7343 defines the word "person" as it is used in Chapter 75 of the Internal Revenue Code as a "person [which] ... includes an officer or employee of a corporation, or a member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs." Section 7203, which contains the word "person," falls within Chapter 75