Misc RM 48    Misc reference material

Reference Material - For Information Only!

 

Over time we have collected a lot of reference material.

We figured it would be better to share with all rather than just delete it.

If you want it, keep it, otherwise just delete it. 

Due to the volume it will take more than one mailing.

 

 

 

 

Tenth Circuit Court of Appeals - Order & Judgment*

Ensminger v. Farm Credit Bank & First National Bank

Understanding the Decision

 

After reviewing the Ensminger case and discussing it with Mr. Ensminger, this narrative has been prepared to summarize the Ensminger case and the Tenth Circuit decision.

 

Mr. Ensminger, with a foreclosure case in progress in a state District court in Oklahoma, filed a suit in Federal District court for the Western District of Oklahoma to establish superior title to the property being foreclosed on. He was attempting to force the Federal District court to convene as a court "in" law for the purpose of establishing that he, through land patent, had the highest title to his property. It should be noted that this was an entirely new case and had nothing to do with the foreclosure case in the state court.

 

As a matter of strategy, the laws he cited to create a federal question for the Federal District court were the patent laws of the U.S. dealing with "intellectual patents", or patents on inventions. As expected, the two banks moved to dismiss for lack of subject matter jurisdiction because the laws cited had nothing to do with land patents. The District court agreed with the banks' motions and dismissed the case for lack of subject matter jurisdiction, again, as expected.

 

As soon as the District court dismissed the case Mr. Ensminger filed a notice of appeal. He did not, however, proceed with the appeal at that point and the time to File the appeal expired. He then received a letter from the Tenth Circuit court (on their own initiative) approximately two months later informing him that they were "extending his time to file an appeal." The Tenth Circuit court was, in essence, asking him to proceed with his appeal! This is unheard of in normal appellate procedure! So he proceeded with the appeal.

 

Prior to the appeal the case was heard in the court of die people, the Common Law Court, and this court's decision was filed with the appeal to the Tenth Circuit court. (NOTE: Mr. Ensminger first declared quiet title on himself, thereby extricating himself from the "federally privileged or 14th amendment citizen" status, allowing him to have his case heard in the proper venue.)

 

The Tenth Circuit court affirmed the ruling of the District court that it did not have subject matter jurisdiction to hear a case for higher title to land. They did not, however, leave it at simply affirming the decision. They issued an Order and Judgment which is almost unheard of for an appeals court. The key to understanding this as a victory as follows.

 

The Tenth Circuit decision, entitled ORDER AND JUDGMENT, contains three very important issues.

 

It is a fact by statute and by case law that a court of equity does not have jurisdiction to determine legal or highest title to property. It can only determine who has equitable interest. As stated on the second page of the order. Mr. Ensminger was trying to establish that he had the highest title and the court knew that it did not have jurisdiction on the title issue as it refused to convene as a court "in" law.

 

The order, on the second page, contains the phrase ".. the facts of the courts original jurisdiction, exclusive to the people, did speak, and was placed into evidence." By quoting this statement from the decision of the COMMON LAW COURT, the court of the people, the Tenth Circuit court recognized the decision, venue and jurisdiction of the COMMON LAW COURT!

 

Most important is to follow the asterisk behind the ORDER AND JUDGMENT* to the bottom of the first page to read the statement to which it refers. It says "This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel." (Emphasis added) This means that it is binding precedent for res judicata which means that it has already been decide by a court of competent jurisdiction and collateral estoppel which means the opponent cannot bring it up again.

 

What court of competent jurisdiction made a decision? The only court involved in this case that made any kind of decision was the Common Law Court. The District court dismissed for lack of jurisdiction and the Tenth Circuit affirmed. Therefore, the doctrine of res judicata in this case could only apply to the Common Law Court.

 

Since the Common Law Court cannot be reviewed, the Tenth Circuit could not state that they affirmed that decision. All they could do was to affirm the District court's dismissal for lack of jurisdiction. But, by quoting from the Common Law Court's decision and establishing that res judicata exists, the Tenth Circuit has agreed with the Common Law Court. The People Have Spoken! The implications of this are truly astounding!

 

Mr. Ensminger is now in the process of going back to the state court with the Common Law Court decision to remove the case from them and render their judgment null and void.

 

To add to the validity of this understanding of the Tenth Circuit decision it is important to note that there have been other successes incorporating this decision into a judicial notice to the other courts, and removing these cases to the venue of the Common Law Court. In one such case, James A. Elliott & United States Bankruptcy Court for the Western District of Oklahoma, the bankruptcy court agreed with the Common Law Court's decision and ordered that Mr. Elliott receive all of his property back even though it had been sold and taken from his possession.

 

It is clear that, as more people become involved with the Common Law Court and more cases are heard, we will see more and more success in being able to remove ourselves from the oppression and tyranny of the de facto U.S. "system" and more firmly establish the authority of the people through the Common Law.

 

Certification of Federally Privileged Status

Section 1 Instructions to Company or Organization

Under the provisions of the Internal Revenue Code of 1986, employers are required to make proper determination of the federally privileged status of certain employees. If Section 2 below has been completed, the worker named on line 1a has requested that you provide the information required by this form for the purpose of determination of federally privileged status. (This determination may also be proactively initiated by the company or organization on the worker's behalf.) Please complete and sign Section 3 below certifying the correct determination, positive or negative, of federally privileged status. Provide one signed copy of this form to the worker and retain one signed copy for the worker's permanent file.


DEFINITION OF "FEDERALLY PRIVILEGED WORKER":
The term "federally privileged worker" includes an officer, employee, or elected official of the United States, a federal territory, or any political subdivision thereof, or the District of Columbia, or any agency or instrumentality of any one or more of the foregoing. The term "federally privileged worker" also includes an officer of a corporation.

DEFINITION OF "FEDERALLY PRIVILEGED ACTIVITY": The term "federally privileged activity" means any service, of whatever nature, per-formed (1) within the federal territory, or under a contract which is entered into within the federal territory, or if the employee is employed on an American vessel or American aircraft; or (2) if it is service which is designated or recognized under an agreement entered into under section 233 ("International Agreements) of the Social Security Act; or (3) as an employee of a person who is, or for an employer which is, (a) the United States or any instrumentality thereof, (b) an individual who is a resident of the federal territory, (c) a partnership or a trust, if two-thirds or more of the partners or trustees are residents of the federal territory, or (d) a corporation organized under the laws of the federal territory or any federal territory.

DEFINITION OF "FEDERAL TERRITORY": The term "federal territory" includes and shall be construed to include the District of Columbia , the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa. (The term "includes" shall not be deemed to exclude other things, districts, possessions, territories, etc., otherwise within the meaning of the term defined.)

 

 

PERJURY TRAP

 

At this stage of my mission, I wish to disclose to each of you why the IRS cannot comply with the Paperwork Reduction Act of 1995. It is simple if you think about it it is a criminal perjury trap.

 

The Paperwork Reduction Act of 1995 requires that in order for a valid OMB control number issued in accordance with the Paperwork Reduction Act to be displayed, 44 U.S.C. 3506(4)(B)(i)(b) states that the Director is to "evaluate" fairly whether proposed collections of information should be approved under this chapter to:

"...ensure that each information collection-(1) is inventoried, displays a control number and, if appropriate, an expiration date; (2) indicate the collection is in accordance with the clearance requirements of section 3507; and (3) informs the person receiving the collection of information of - (I) the reasons the information is being collected; (II) the way such information is to be used; (Ill) an estimate, to the extent practicable, of the burden of the collection; (IV) whether the responses to the collection of information are voluntary, required to obtain a benefit, or mandatory; and (V) the fact that an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number.

 

The Fifth Amendment has always stood between the Citizens of this Great Country and the Government of both the United States and the State to which you and I live - 0 - those words, in part, say:

"No person . . . shall be compelled in any criminal case to be a witness against himself." U.S. Const., Amdt. 5.

See United States v. Hubbell, 53o U.S. 27, 29 (2000)

 

In Gouled v. United States, 255 U.S. 298, 311 (1921) the Supreme Court was address this question:

"If such papers so taken are admitted in evidence against the person from whose house or office they were taken, such person being then on trial for the crime of which he was accused in the affidavit for warrant, - is such admission in evidence a violation of the 5th amendment?"

 

The Supreme Court answered this question "Yes" by saying:

"The same papers being involved, the answer to this question must be in the affirmative for, they having been seized in an unconstitutional search, to permit them to be used in evidence would be, in effect, as ruled in the Boyd Case, to compel the defendant to become a witness against himself."

 

While addressing this issue further, the Supreme Court in United States v. Hubbell, 530 U.S. 27 (beginning at page 34) (2000) stated that:

"It is useful to preface our analysis of the constitutional issue with a restatement of certain propositions that are not in dispute. The term "privilege against self-incrimination" is not an entirely accurate description of a person's constitutional protection against being "compelled in any criminal case to be a witness against himself."

 

The word "witness" in the constitutional text limits the relevant category of compelled incriminating communications to those that are "testimonial" in character.[fn8]1 As JUSTICE HOLMES observed, there is a significant difference between the use of compulsion to extort communications from a defendant and compelling a person to engage in conduct that may be incriminating. Thus, even though the act may provide incriminating evidence, a criminal suspect may be compelled to put on a shirt, to provide a blood sample or handwriting exemplar, or to make a recording of his voice. The act of exhibiting such physical characteristics is not the same as a sworn communication by a witness that relates either express or implied assertions of fact or belief. Pennsylvania v. Muniz, 496 U.S. 582, 594-598 (1990).

 

Similarly, the fact that incriminating evidence may be the by product of obedience to a regulatory requirement, such as filing an  income tax return,[fn14]2 maintaining required records,[fn15]3 or reporting an accident,[fn416]4 does not clothe such required conduct with the testimonial privilege.[fn17]5

 

"More relevant to this case is the settled proposition that a person may be required to produce specific documents even though they contain incriminating assertions of fact or belief because the creation of those documents was not "compelled" within the meaning of the privilege." Hubbell, at 35

 

 

The Supreme Court's decision in "Fisher v. United States, 425 U.S. 391 (1976), dealt with summonses issued by the Internal Revenue Service (IRS) seeking working papers used in the preparation of tax returns. Because the papers had been voluntarily prepared prior to the issuance of the summonses, they could not be 'said to contain compelled testimonial evidence, either of the taxpayers or of anyone else.' Accordingly, the taxpayer could not 'avoid compliance with the subpoena merely by asserting that the item of evidence which he is required to produce contains incriminating writing, whether his own or that of someone else.' Fisher, at 409-410; see also United States v. Doe, 465 U.S. 605 (1984).

 

It is clear, therefore, that respondent Hubbell could not avoid compliance with the subpoena served on him merely because the demanded documents contained incriminating evidence, whether written by others or voluntarily prepared by himself." Hubbell, at 36

 

Then, the Supreme Court stated "[O]n the other hand, we have also made it clear that the act of producing documents in response to a subpoena may have a compelled testimonial aspect. We have held that "the act of production" itself may implicitly communicate "statements of fact." By "producing documents in compliance with a subpoena, the witness would admit that the papers existed, were in his possession or control, and were authentic."[fn19]6

 

"Moreover, as was true in this case [Hubbell], when the custodian of documents responds to a subpoena, he may be compelled to take the witness stand and "Compelled testimony that communicates information that may 'lead to incriminating evidence' is privileged even if the information itself is not inculpatory." Doe v. United States, 487 U.S. 201, 208, n. 6 (1988). It is the Fifth Amendment's protection against the prosecutor's use of incriminating information derived directly or indirectly from the compelled testimony of the respondent that is of primary relevance in this case." Hubbell, at 38

 

Remember the statement above in Hubbell where the Supreme Court said "Similarly, the fact that incriminating evidence may be the by product of obedience to a regulatory requirement, such as filing an income tax return,  maintaining required records, or reporting an accident, does not clothe such required conduct with the testimonial privilege."

 

The Supreme Court stated in Garner v. United States, 424 U.S. 648, 65o (1976) "In United States v. Sullivan, 274 U.S. 259 (1927), the Court held that the privilege against compulsory self-incrimination is not a defense to prosecution for failing to file a return at all. But the Court indicated that the privilege could be claimed against specific disclosures sought on a return, saying:

 

"If the form of return provided called for answers that the defendant was privileged from making he could have raised the objection in the return, but could not on that account refuse to make any return at all." Id., at 263.[fn3]

 

Garner, at 651

"Had Garner invoked the privilege against compulsory self-incrimination on his tax returns in lieu of supplying the information used against him, the Internal Revenue Service could have proceeded in either or both of two ways. First, the Service could have sought to have Garner criminally prosecuted under 7203 of the Internal Revenue Code of 1954 (Code), 26 U.S.C. 7203, which proscribes, among other things, the willful failure to make a return. Second, the Service could have sought to complete Garner's returns administratively 'from own knowledge and from such information as [it could] obtain through testimony or otherwise.' 26 U.S.C. 6020 (b) (1). Section 7602 (2) of the Code authorizes the Service in such circumstances to summon the taxpayer to appear and to produce records or give testimony. Page 652, 26 U.S.C. 7602 (2).

 

"Given Sullivan, it cannot fairly be said that taxpayers are "volunteers" when they file their tax returns. The Government compels the filing of a return much as it compels, for example, the appearance of a "witness"8 before a grand jury. The availability to the Service of 7203 prosecutions and the summons  procedure also induces taxpayers to disclose unprivileged information on their returns. The question, however, is whether the Government can be said to have compelled Garner to incriminate himself with regard to specific disclosures made on his return when he could have claimed the Fifth Amendment privilege instead." Garner, at 653

 

Next, the Supreme Court said to "start from the fundamental proposition:

[A] witness protected by the privilege may rightfully refuse to answer unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant Kastigar v. United States, 406 U.S. 441 (1972). Absent such protection, if he is nevertheless compelled to answer, his answers are inadmissible against him in a later criminal prosecution. Bram v. United States, [168 U.S. 532 (1897)]; Boyd v. United States, [116 U.S. 616 (1886)]." Lefkowitz v. Turley, 414 U.S. 70, 78 (1973). See Murphy v. Waterfront Comm'n, 378 U.S. 52, 57 n. 6 (1964)."

 

"Because the privilege protects against the use of compelled statements as well as guarantees the right to remain silent absent immunity, the inquiry in a Fifth Amendment case is not ended when an incriminating statement is made in lieu of a claim of privilege. Nor, however, is failure to claim the privilege irrelevant." Garner, at 653

 

The Supreme Court has held that an "individual under compulsion to make disclosures as a witness who revealed information instead of claiming the privilege lost the benefit of the privilege. United States v. Kordel, 397 U.S. 1, 7-10 (1970). Although Kordel appears to be the only square holding to this effect, the Court frequently has recognized the principle in dictum. 9 Maness v. Meyers, 419 U.S. 449, 466 (1975); Rogers v. United States, 340 U.S. 367, 370-371 (1951); Smith v. United States, 337 U.S. 137, 150 (1949); United States v. Monia, 317 U.S. 424, 427 (1943); Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 112-113 (1927). These decisions stand for the proposition that, in the ordinary case, if a witness under compulsion to testify makes disclosures instead of claiming the privilege, the government has not "compelled" him to incriminate himself." Garner, at 654

 

"The [fifth] Amendment speaks of compulsion. It does not preclude a witness from testifying voluntarily in matters which may incriminate him. If, therefore, he desires the protection of the privilege, he must claim it10 or he will not be considered to have been 'compelled' within the meaning of the Amendment.' United States v. Monia, supra, at 427 (footnote omitted)." Garner, at 655

 

"In their insistence upon a claim of privilege, Kordel and the older witness cases reflect an appropriate accommodation of the Fifth Amendment privilege and the generally applicable principle that governments have the right to everyone's testimony. Mason v. United States, 244 U.S. 362, 364-365 (1917); see, e. g., Branzburg v. Hayes, 408 U.S. 665, 688 (1972); Kastigar v. United States, 406 U.S. 441, 443-445 (1972). Despite its cherished position, the Fifth Amendment addresses only a relatively narrow scope of inquiries. Unless the government seeks testimony that will subject its giver to criminal liability, the constitutional right to remain silent absent immunity does not arise. An individual therefore properly may be compelled to give testimony, for example, in a noncriminal investigation of himself. See, e. g., Gardner v. Broderick, 392 U.S. 273, 278 (1968). Unless a witness objects, a government ordinarily may assume that its compulsory processes are not eliciting testimony that he deems to be incriminating. Only the witness knows whether the apparently innocent disclosure sought may incriminate him, and the burden appropriately lies with him to make a timely assertion of the privilege. If, instead, he discloses the information sought, any incriminations properly are viewed as not compelled." Garner, at 655

 

Amendment - the preservation of an adversary system of criminal justice. See Tehan v. United States ex rel. Shott, 382 U.S. 406, 415 (1966).That system is undermined when a government deliberately seeks to avoid the burdens of independent investigation by compelling self-incriminating disclosures. In areas where a government cannot be said to be compelling such information, however, there is no such circumvention of the constitutionally mandated policy of adversary criminal proceedings. Cf. Counselman v. Hitchcock, 142 U.S. 547, 562-565 (1892); California v. Byers, 402 U.S. 424, 456-458 (1971) (Harlan, J., concurring in judgment). Garner, at 656

 

"The information revealed in the preparation and filing of an income tax return is, for purposes of Fifth Amendment analysis, the testimony of a "witness," as that term is used herein. Since Garner disclosed information on his returns instead of objecting, his Fifth Amendment claim would be defeated by an application of the general requirement that witnesses must claim the privilege." Garner, at 656

 

"Garner, however, resists the application of that requirement, arguing that incriminating disclosures made in lieu of objection are "compelled" in the tax-return context. He relies specifically on three situations in which incriminatory disclosures have been considered compelled despite a failure to claim the privilege. But in each of these narrowly defined situations, some factor not present here made inappropriate the general rule that the privilege must be claimed. In each situation the relevant factor was held to deny the individual a 'free choice to admit, to deny, or to refuse to answer.' Lisenba v. California, 314 U.S. 219, 241 (1941). For the reasons stated below, we conclude that no such factor deprived Garner of that free choice." Garner, at 657 Garner relied on Mackey v. United States, 401 U.S. 667 (1971), the relevance of which can be understood only in light of Marchetti v. United States, 390 U.S. 39 (1968), and Grosso v. United States, 390 U.S. 62 (1968). In the latter cases the Court considered whether the Fifth Amendment was a defense in prosecutions for failure to file the returns required of gamblers in connection with the federal occupational and excise taxes on gambling. The Court found that any disclosures made in connection with the payment of those taxes tended to incriminate because of the pervasive criminal regulation of gambling activities. Marchetti, supra, at 48-49; Grosso, supra, at 66-67. Since submitting a claim of privilege in lieu of the returns also would incriminate, the Court held that the privilege could be exercised by simply failing to file.

 

As noted above, the Paperwork Reduction Act of 1995 requires the Government to inform the person answering the government's questions

 

II ...say that when we ask you for information we must first tell you our legal right to ask for the information, why we are asking for it, and how it will be used. We must also tell you what could happen if we do not receive it and whether your response is voluntary, required to obtain a benefit or mandatory under the law." See, 1040

 

Instructions for any yearn; see also, 44 U.S.C. 3506 and 3512.

 

Since 1995, Congress requires the person subject to the request to be given

notice that they are not required to provide and cannot be penalized for failure to comply with any information collection request unless the form of request displays a valid OMB control number issued in accordance with the Paperwork Reduction Act chapter.

 

The Commissioner tells you in the Instruction for Form 1040 that "...we ask for the information to carry out the tax laws" and even tells you that we "may give it to the Department of Justice and to other federal agencies, as provided by law." (They also give it to other cities and states to carry out their tax laws.)

 

If you do not provide the information or provide information the IRS is not satisfied with, they tell you in the instruction booklet that they may "charge" you with "penalties" and in certain cases, "you may be subject to criminal penalties."

 

The W-4 says routinely the IRS shares the information you provide on that form with the civil and criminal division of the Department of Justice. And do not forget that civil division can share your information with the in-house criminal division of the IRS.

 

Remember the quote from the Supreme Court's decision in Marchetti:

"...tended to incriminate because of the pervasive criminal regulation of gambling activities."

 

Hello! The IRS, on their collection of information forms, tells you that they are going to use the information provided by you to have a civil and criminal analysis done of your answers. That is more reason to remain silent than what was afforded Marchetti!

 

Next is the fact the IRS does not comply with the Paperwork Reduction Act of 1995 and tell you whether your response is voluntary or mandatory because if they tell you "mandatory" on the request it raises the Fifth Amendment to a new level and if they say "voluntary" who would do it? In 1992, the IRS told America in their instruction booklet that they "...were among the millions of Americans who comply with the tax law voluntarily." In 1993, the IRS said we had the "most effective system of voluntary compliance in the world."

 

I have said all this to say this The IRS collection of information form 1040 is a "perjury trap" and the Fifth Amendment provides you with the right to remain silent in lieu of answering the questions that subject the witness to threats of perjury and other criminal sanctions at the State and Federal level.

 

There is no statutory origin theory regarding an exemption for the IRS as given by some Courts regarding answering income questions or providing answers to income questions on any income tax form, not just Form 1040. The Supreme Court said in Hubbell, it was a "regulatory requirement" that required you to "file an income tax return."

 

The same reason the IRS tries to evade the PRA protection is the same reason the judges try to evade the Fifth Amendment protections. That is that before you have to answer the questions asked of you they are required to tell you what they can do with your answers. If they tell you they can use your answers against you, and you provide the answers anyway, they say you waived your Fifth Amendment rights. If they do not tell you what they can do with the information you provide and you provide it anyway, it would appear you have volunteered and absent some horrific revelation not disclosed, your voluntary compliance will sustain the use of those answers freely given against you.

 

If you remain silent then you cannot be seen to have waived your rights to the Fifth Amendment or any privilege extended therefrom.

 

I share this with you only to understand why the IRS cannot comply with the Paperwork Reduction Act of 1995 and why they cannot compel you to provide answers to them if they have not informed you as to what they are authorized to do with the answers once you provide those answers to their questions to the IRS.

 

What the IRS is doing is putting you into a "perjury trap."

 

 

Disclaimer: We are just people that get together and exchange information.
We are not a group or organization.
We are not a company or corporation or association. 
We sell nothing and we charge nothing.

To cancel your class e-mail click "reply" and type "stop messages".