In the United States Court of Appeals s2

IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

PHILIP E ROBERTS APPELLANT

VS. No. 00-3405WAFS

UNITED STATES OF AMERICA APPELLEE

AN APPEAL FROM THE ORDER OF JUDGMENT AND SENTENCING IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FORT SMITH DIVISION

THE HONORABLE ROBERT DAWSON PRESIDING

***********************************

APPELLANT’S BRIEF

*******************************

By: Oscar Stilley, Attorney for appellant Central Mall Plaza Suite 516 5111 Rogers Avenue Fort Smith, Arkansas 72903-2041 (501)452-3714 (501)452-5387 FAX Bar # 91096 [email protected] SUMMARY OF THE CASE AND REQUEST FOR ORAL ARGUMENT

This is an appeal from a conviction for wilful failure to make a tax return.

Appellant, Dr. PhilipE. Roberts claims that the 5th Amendment prohibits the government from compelling him from making a return where, as here, the very making of the return is testimonial in nature. The fact of the making or filing of a certain returns was the sole evidence of the knowledge element of the criminal charge. If Dr. Roberts had filed the returns for which he was charged, those returns would have been used to establish the knowledge element and negate claims of good faith.

Dr. Roberts has thrice asked the District Court for a ruling upon his claims.

Thrice he has been denied on grounds of sovereign immunity. The last lawsuit is on appeal at the 8th Circuit Court of Appeals.

The indictment did not cite any statute thought to require the filing of a return. This information was denied to Dr. Roberts. The record in this case is littered with uncontrovertibly reversible error and prejudicial rulings against Dr.

Roberts.

Due to the many major issues in this case, Dr. Roberts requests oral argument of 30 minutes per side.

-i- TABLE OF CONTENTS

SUMMARY OF THE CASE AND REQUEST FOR ORAL ARGUMENT....-i-

TABLE OF CONTENTS...... -ii-

TABLE OF AUTHORITIES...... -vi-

JURISDICTIONAL STATEMENT...... -xiii-

ISSUES PRESENTED...... -xv-

STATEMENT OF THE CASE...... -xvii-

STATEMENT OF MATERIAL FACTS...... -xix-

SUMMARY OF APPELLANT'S ARGUMENTS...... -xxv-

APPELLANT’S ARGUMENT...... 1

Summary of the case...... 1

I The District Court erred in denying Dr. Roberts Motion to Dismiss, holding that the United States could on the one hand require Dr. Roberts to make and file a written sworn tax statement for the years ending 1993 and 1994, on threat of criminal sanctions, while on the other hand permitting the use of previously or subsequently filed forms as evidence of an element of the crime, namely knowledge of a legal duty to “make” or “file” “forms.”...... 3

A. The making of the tax form itself, by Appellant, for the years 1993 and 1994, would have been inherently and inescapably incriminating...... 3

B. Any mandatory requirement that Appellant make a federal income tax form for the years 1993 and 1994, which is only deemed complied

-ii- with if signed pursuant to or under penalty of perjury, would have subjected Appellant to an appreciable possibility of prosecution, pursuant to 26 U.S.C. § 7206, and thus forbidden pursuant to the Fifth Amendment and plain error by the District Court...... 10

C. Requiring Dr. Roberts to make a document every year on April 15, that is likely to be construed as a confession of a specific element of a crime, and a voluntary waiver of the Fifth Amendment, with threat of prison for failure to act, amounts to compelled document production and testimony in violation of the fourth and fifth amendments...... 15

II The District Court erred in holding that a grand jury indictment, claiming violation of a punishment statute, need not specify the underlying law thought to have been violated, nor to specify the form of return thought to have been required but not filed, particularly so in this case where the District Court refused to inform Dr. Roberts of the nature and cause of the accusation, cited fictitious statutory authority and repeatedly refused to provide or compel the Government to provide a list of statutes thought to be a “true, correct, and complete” list of the statutes the alleged violation for which Dr. Roberts was held to answer...... 17

III. The District Court erred in denying a motion for its recusal, after having stated the District Court was going to put Dr. Roberts in jail, and after committing Dr. Roberts to jail in violation of clearly established 8th Circuit precedent, where the District Court repeatedly made rulings and orders which clearly demonstrated prejudice and rendered it impossible to receive a “fair trial.”...... 26

IV The District Court erred in relying on the testimony of a witness who proclaimed ignorance of the laws relating to tax assessments, ignoring official assessment records showing that no unpaid assessment was outstanding, and enhancing the sentence and compelling restitution without a specific finding of tax loss, and without any authority whatever to support the finding of tax loss...... 31

V The District Court erred in denying Dr. Roberts his right to confront his accusers, compel witnesses and testimony to aid in his defense, to a

-iii- fair and impartial jury, present evidence to the jury, to have the jury instructed according to current federal laws, and failing to have venue of this alleged crime, all in violation of the sixth amendment...... 41

A. Dr. Roberts was denied his secured right to compel witnesses...... 41

B. Special Agent Laura Blackorby, the Prosecutor’s wife, should have been allowed to give her testimony before the Jury involving her involvement in the case against Dr. Roberts...... 41

C. Dr. Roberts should have been allowed to interrogate the government’s chief witness...... 41

D. The District Court intervened in every aspect of Dr. Roberts right to ask questions of witnesses called by the government by making the structure of asking questions so impossible that the Jury was sure to grasp the message the Court intended to convey...... 41

E. The District Court erred by allowing the jury to consider a revenue agent as expert in tax laws...... 41

F. The District Court erred in instructing the jury as to the law...... 42

G. The District Court lacked venue over the charges alleged in the indictment...... 42

H. The District Court incorrectly instructed jury the term “make” and “file” were of the same meaning...... 43

I. Changing the jury list the morning of trial to include jurors who had recently ruled in a case tangentially involving perjury on tax forms was a manifest abuse of discretion...... 43

J. When one juror admitted prejudice against the political activities of defense counsel, due to his involvement in an attempt to abolish the Arkansas property tax and sales taxes on used cars, the District Court should have asked other jurors about the same bias...... 45

-iv- K. The District Court refused to allow Dr. Roberts to identify which of the jurors relied upon a pay check from the government in order to enquire whether this connection was sufficient enough to strike these persons from the jury...... 46

CONCLUSION...... 46 ADDENDUM PAGES Indictment...... Addendum page 1 Order and recommendation denying bill of particulars...... Addendum page 3 Order referring motion to dismiss to magistrate...... Addendum page 6 June 14 Order...... Addendum page 7 Order re motion to compel...... Addendum page 19 Order denying recusal...... Addendum page 21 Order sustaining magistrate’s order...... Addendum page 22 Judgment...... Addendum page 24 Amended Judgment...... Addendum page 31 Tendered Jury Instruction 3...... Addendum page 38 Tendered Jury Instruction 4...... Addendum page 39 Court’s Jury Instruction 8...... Addendum page 40 Court’s Jury Instruction 9...... Addendum page 42

-v- TABLE OF AUTHORITIES

CASELAW

Liparota v. United States, 471 U.S. 419, 441 (1985) (WHITE, J., dissenting)...... 12

Russell v. United States, 369 U.S. 749, 764-66, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962)...... 20

United States v. Denmon, 483 F.2d 1093 (8th Cir. 1973)...... 21

Ballman v. Fagin, 200 U.S. 186...... 10

Baltimore v. Bouknight, 493 U.S. 549, 555(1990)...... 16

Begnaud, 783 F.2d at 148...... 25

Boomer v. United States, 755 F.2d 696, 697(8th Cir. 1985)...... 11

Boyce Motor Lines, Inc. v. United States, 342 U.S. 337 (1952)...... 12

Bryan v. United States, 524 U.S. 184 (1998)...... 4, 21

Bull v. United States, 295 U.S. 247 (1935)...... 38

Burnham v. Superior Court of Cal., Marin County, 495 U.S. 604 (1990)...... 40

-vi- Cheek v. United States, 498 U.S. 192, 201 (1991)...... 5, 12, 13, 21

Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948)...... 19

DeJonge v. Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 81 L.Ed. 278 (1937)...... 19

Dutiel v. State, 135 Neb. 811, 284 N.W. 321 (1939)...... 20

Dyas v. Lockhart, 705 F.2d 993 (8th Cir. 1983)...... 46

Ex parte Irvine, 74 Fed. 954...... 8

Garner v. St. Louis Southwestern Railway Company, 676 F.2d 1223, 1228 (8th Cir. 1982)...... -xvi-, -xxviii-, 32

Garner v. United States, 424 U.S. 648, 653(1976)...... 7, 10, 11, 14, 18

Goodloe v. Parratt, 605 F.2d 1041 (8th Cir. 1979)...... 19-21

Grand Jury Subpoenas Duces Tecum, 85 F.3d 372 (8th Cir. 1996)...... 31

Grosso v. United States, 390 U.S. 62 (1968)...... 9

Hale v. Carlson (In re Hale), 980 F.2d 1176, 1178 (8th Cir. 1992)...... 26

-vii- Hamling v. United States, 418 U.S. 87, 119-124 (1974)...... 12, 19

Hamling v. United States, 418 U.S. at 117, 94 S.Ct. 2887...... 19

Hillhouse v. Harris, 715 F.2d 428 (8th Cir. 1983)...... 31

Hoffman v. United States, 341 U.S. 479, 486(1951)...... 12

In re The Grand Jury Subpoenas, 191 F.3d, 173(2nd Cir. 1999)...... 16

Internal Revenue Agent v. Sullivan, 287 Fed. 138...... 10

International Shoe Co. v. Washington, 326 U.S. 310 (1945)...... 40

Kansas Public Employees Retirement Sys., 85 F.3d 1353 (8th Cir. 1996)...... 29

Keck v. United States, 172 U.S. 434, 437, 19 S.Ct. 254, 43 L.Ed. 505 (1899)...... 20

Lambert v. California, 355 U.S. 225, 228 (1957)...... 12

Lisenba v. California, 314 U.S. 219, 241(1941)...... 11

Lunde v. Helms, 29 F.3d 367, 370 (8th Cir. 1994), cert. denied, 115 S.Ct. 1111 (1995)...... 29

Mackey v. United States, 401 U.S. 667 (1971)...... 9

-viii- Marchetti v. United States, 390 U.S. 39 (1968)...... 9

Mason v. United States, 244 U.S. 362...... 8

Mckesson Corp. v. Florida Alcohol & Tobacco Div., 496 U.S. 18 (1990)...... 39

Mitchell v. United States, 526 U.S. 314 (1999)...... 10

Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948)...... 19

Ouachita Nat. Bank v. Tosco Corp., 686 F.2d 1291, 1300 (8th Cir. 1982)...... 27

Podolin v. Lesher Warner Dry Goods Co., 210 Fed. 97...... 8

Russell v. United States, 369 U.S. 749, 770 (1962)...... 26

Salinger v. United States, 272 U.S. 542, 548-549 (1926)...... 26

Spies v. United States, 317 U.S. 492, 496 (1943)...... 13

State v. Abraham, 189 Neb. 728, 729-30, 205 N.W.2d 342, 343-44 (1973)...... 19

State v. Harig, 192 Neb. 49, 56-57, 218 N.W.2d 884, 889 (1974)...... 19

-ix- Stirone v. United States, 361 U.S. 212, 217 (1960)...... 25

Tanner, 107 S.Ct. at 2753...... 23

Tate v. Weyerhaeuser Co., 723 F.2d 598 (8th Cir. 1983)...... -xix-, 32

U.S. v. Cloyd, 819 F.2d 836 (8th Cir. 1987)...... -xxviii-, 32

U.S. v. Emery, 186 F.3d 921 (8th Cir. 1999)...... 24

U.S. v. Fleming, 8 F.3d 1264(8th Cir. 1993)...... 24

U.S. v. Huntsman, 959 F.2d 1429(8th Cir. 1992)...... 23

U.S. v. Minarik, 875 F.2d, 1186(6th Cir. 1989)...... 23

U.S. v. Novak, ___ F.3d ___ (8th Cir. 2000)...... 23

U.S. v. Ross 210 F.3d 916 (8th Cir. 2000)...... 25

U.S. v. Tucker, ___ F.3d ___ (8th Cir. 2000)...... 26

U.S.A. v. Troescher. 99 F.3d 933, 936(9th Cir. 1996)...... -xvi-, 33

United States ex rel. Vajtauer v. Comm'r of Immigration, 273 U.S. 103...... 14

-x- United States v. Anderson, 567 F.2d 839 (8th Cir. 1977)...... 8

United States v. Begnaud, 783 F.2d 144, 147 n. 4 (8th Cir. 1986)...... 27

United States v. Bishop, 412 U.S. 346, 360-361 (1973)...... 24, 25

United States v. Brown, 540 F.2d 364, 371 (8th Cir. 1976)...... 13

United States v. Burnett, 582 F.2d 436, 438 (8th Cir. 1976)...... 19

United States v. Camp, 541 F.2d 737 (8th Cir. 1976)...... 26

United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1882)...... 25

United States v. Cruikshank, 92 U.S. 542, 565-66, 23 L.Ed. 588 (1875)...... 19, 20

United States v. Dolan, 120 F.3d 856 (8th Cir. 1997)...... 20

United States v. Emery, 186 F.3d 921, 927 (8th Cir. 1999)...... 22

United States v. Helmel, 769 F.2d 1306, 1322 (8th Cir. 1985)...... 25

United States v. Hess, 124 U.S. 483, 487, 8 S.Ct. 571, 31 L.Ed. 516 (1888)...... 22

United States v. Hudson, 129 F.3d 994, 994-95 (8th Cir. 1997)...... 20

-xi- United States v. International Minerals & Chemical Corp., 402 U.S. 558 (1971).34

United States v. Kahl, 583 F.2d 1351 (5th Cir. 1978)...... 12

United States v. Kordel, 397 U.S. 1, 7-10 (1970)...... 30

United States v. Moore, 627 F.2d 830, 834 (7th Cir. 1980)...... 8

United States v. Murdock, 284 U.S. 141 (1931)...... 11

United States v. Murdock, 290 U.S. 389 (1933)...... 10

United States v. Nattier, 127 F.3d 655, 657 (8th Cir. 1997), cert. denied, 118 S.Ct. 1398 (1998)...... 12

United States v. Poludniak, 657 F.2d 948, 954 (8th Cir. 1981)...... 3

United States v. Ramirez, 196 F.3d 895, 898-99 (8th Cir. 1999)...... 29

United States v. Shoff, 151 F.3d 889, 892-93 (8th Cir. 1998)...... 34

United States v. Smith 171 F.3d 617, @ 619 (8th Cir. 1999)...... 34

United States v. Sullivan, 274 U.S. 259 (1927)...... 3

-xii- United States v. Vroman, 975 F.2d 669, 670(9th Cir. 1992)...... 7, 11, 14

United States v. Young, 618 F.2d 1281, 1286 (8th Cir.), cert. denied, 449 U.S. 844, 101 S.Ct. 126, 66 L.Ed.2d 52 (1980)...... 19

US v. Vroman, 975 F.2d 669, (9th Cir. 1992)...... 23

Watson v. Jago, 558 F.2d 330, 338 (6th Cir. 1977).[fn12]...... 30

Weigland v. United States, 455 U.S. 940 (1982)...... 19

Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975) 29

-xiii- -xiv- -xv- -xvi- -xvii- STATUTORY AUTHORITY/RULES

Federal Criminal Rule 7(c)...... -xvi-, 46

18 U.S.C. Appx. 2T3.2...... 32

18 U.S.C. § 3664 (e)...... 39

26 U.S.C. § 6203...... 35

26 U.S.C. § 6204...... 35

26 U.S.C. § 6211...... 36, 38

26 U.S.C. § 6212...... 36, 38

26 U.S.C. § 6213...... 35, 36, 38

26 U.S.C. § 6702...... 14

26 U.S.C. § 7203...... 9, 17, 18, 20, 23, 24, 37

26 U.S.C. § 7206...... 10, 14

28 U.S.C. Section(s) 455(a)...... 28

-xviii- 28 USC 636...... 28

Fed.R.Ev. Rule 404(b)...... 11

Nebraska Constitution art. 1, § 11...... 19

U.S. Constitution Amend. VI...... 19

-xix- BOOKS/TREATISES

MISCELLANEOUS AUTHORITY

18 U.S.C. Appendix § 2T1.1(c)(1)...... 34

18 U.S.C. § 2T1.1...... 37

18 U.S.C. § 2T1.1(c)(2)...... 34, 35, 37

18 U.S.C. § 2T1.1(c)(3)...... 34, 35, 37

-xx- JURISDICTIONAL STATEMENT

1 This is a criminal appeal from an indictment allegedly brought pursuant to

certain unspecified federal statutes. Neither the government nor the District

Court would say what was believed to be a “true, correct, and complete” set

of statutes thought to have been violated by Dr. Roberts.

2 Jurisdiction to appeal to the Eighth Circuit Court of Appeals is found in 28

USC 1291, for appeal from a final decision of the United States District

court.

3 A Judgment and Commitment Order was entered in the District Court on

September 26, 2000. Notice of appeal was filed on September 29, 2000.

Defense counsel informed the Court that the judgment referenced statutes

wholly unrelated to any issue in this case, in support of the order of

restitution. On October 4, 2000, the District Court simply filed an amended

judgment and commitment order which omitted all authority cited in support

of the order of restitution, and which furthermore contained no specific

finding of any tax loss. An amended Notice of Appeal was filed on October

12, 2000. According to the briefing schedule, the opening brief is due on the

17th day of November, 2000.

-xxi- 4 This appeal is from a final order of the District Court finding Appellant

guilty of a crime, committing him to prison, and levying a $30,000 fine,

restitution of $58,868.18, and a tax of $50 per count.

-xxii- ISSUES PRESENTED

I The District Court erred in denying Dr. Roberts Motion to Dismiss, holding that the United States could on the one hand require Dr. Roberts to make and file a written sworn tax statement for the years ending 1993 and 1994, on threat of criminal sanctions, while on the other hand permitting the use of previously or subsequently filed forms as evidence of an element of the crime, namely knowledge of a legal duty to “make” or “file” “returns.”

Marchetti v. United States, 390 U.S. 39 (1968)

Grosso v. United States, 390 U.S. 62 (1968)

U.S.A. v. Troecher. 99 F.3d 933, 936 (9th Cir. 1996)

II The District Court erred in holding that a grand jury indictment, claiming violation of a punishment statute, need not specify the underlying law thought to have been violated, nor to specify the form of return thought to have been required but not filed, particularly so in this case where the District Court refused to inform Dr. Roberts of the nature and cause of the accusation, cited fictitious statutory authority and repeatedly refused to provide or compel the Government to provide a list of statutes thought to be a “true, correct, and complete” list of the statutes the alleged violation for which Dr. Roberts was held to answer.

Goodloe v. Parratt, 605 F.2d 1041 (8th Cir. 1979)

Cheek v. United States, 498 U.S. 192, 201 (1991)

III. The District Court erred in denying a motion for its recusal, after having stated the District Court was going to put Dr. Roberts in jail, and after committing Dr. Roberts to jail in violation of clearly established 8th Circuit precedent, where the District Court repeatedly made rulings and orders which clearly demonstrated prejudice and rendered it impossible to receive a “fair trial.”

-xxiii- Lunde v. Helms, 29 F.3d 367, 370 (8th Cir. 1994), cert. denied, 115 S.Ct. 1111 (1995)

United States v. Poludniak, 657 F.2d 948, 954 (8th Cir. 1981)

IV The District Court erred in relying on the testimony of a witness who proclaimed ignorance of the laws relating to tax assessments, ignoring official assessment records showing that no unpaid assessment was outstanding, and enhancing the sentence and compelling restitution without a specific finding of tax loss, and without any authority whatever to support the finding of tax loss.

U.S. v. Tucker, ___ F.3d ___ (8th Cir. 2000)

Tate v. Weyerhaeuser Co., 723 F.2d 598 (8th Cir. 1983)

Garner v. St. Louis Southwestern Railway Company, 676 F.2d 1223, 1228 (8th Cir. 1982).

V The District Court erred in denying Dr. Roberts his right to confront his accusers, compel witnesses and testimony to aid in his defense, to a fair and impartial jury, present evidence to the jury, to have the jury instructed according to current federal laws, and failing to have venue of this alleged crime, all in violation of the sixth amendment.

U.S. v. Holden, 963 F.2d 1114 (8th Cir. 1992)

Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975)

United States v. Warfield, 97 F.3d 1014, 1024 (8th Cir.)

-xxiv- STATEMENT OF THE CASE

Dr. Roberts is a chiropractor practicing in Fort Smith, Arkansas. He was charged with wilful failure to make an income tax form. The indictment didn’t specify the form thought to have been required or the statute thought to require the filing of the return. Dr. Roberts repeated requests that the Court compel the

Government to disclose the statutes thought to require the allegedly omitted conduct were denied.

Roberts filed motions to dismiss and motions to quash the indictment. The

Government feigned an intention to call Magistrate Beverly Jones as a witness, in order to secure her recusal. Magistrate Bobby Shepherd then heard certain proceedings, including challenges to the indictment for failure to cite the statutes thought violated. Magistrate Shepherd denied the motion on the basis of outdated and overruled decisions from the 9th Circuit and 5th Circuit. The District Court summarily denied the objections to the orders of the magistrate.

Roberts filed a motion for the recusal of the Magistrate and District Court.

Both motions were denied.

The cause was tried to a jury on June 27, 2000, through June 29, 2000. The jury returned a verdict of guilty. Immediately after the hearing, David Blackorby,

Assistant US Attorney, stated that Dr. Roberts had by the conviction waived his 5th

-xxv- Amendment rights.

The District Court then held a sentencing hearing. On the issue of tax loss, the only witness was Tom Bryan, who admitted that he knew little about civil tax matters. All parties agreed that there were no tax assessments outstanding, and furthermore that the government holds $12,000 in tax payments made by Dr.

Roberts, which have not been applied to any tax debt.

The District Court entered a judgment and commitment order, sentencing

Roberts to a fine of $30,000, restitution of $58,868.18, sixteen months in prison, two years of probation, and a tax of $50 per count. When confronted with the fact that the District Court’s cited authority for the restitution made no sense whatever, the District Court simply omitted all reference to authority, and furthermore omitted any specific finding of tax loss.

Due to an extremely large number of prejudicial and reversible errors,

Appellant sought permission to file an overlength brief. The motion was denied.

Therefore, some of the points herein have been shortened or omitted altogether.

This appeal follows.

-xxvi- STATEMENT OF MATERIAL FACTS

10 No immunity has been offered by the United States government to Appellant for his testimony at any time.

20 Appellant ceased making and filing federal 1040 tax forms in 1990.

30 As a result, Appellant was in contact with the IRS by letter since 1990.

40 Appellant filed suit not once but three times in the Western District of

Arkansas, asking for a declaratory judgment concerning whether or not he could be compelled to make or file a tax written tax statement, where an appreciable possibility existed that such testimony would and could be used against him in any criminal case. The filing of these lawsuits began in 1999. The District Court dismissed all these cases on grounds of sovereign immunity. In the last case,

Appellant filed an appeal with the 8th Circuit Court of Appeals, which has been fully briefed in this Court for more than 6 months. Roberts v. United States, 8th

Circuit Case No. 00-1121

50 The only evidence that the Government used to establish the claim that

Appellant had knowledge of a specific legal duty requiring him to make or file federal 1040 tax forms, was forms made by a preparer and signed by Appellant for other years and then filed.

60 Appellant had not made federal income tax forms for 1990, 1991, and 1992.

-xxvii- 70 There was a substantial probability that Appellant would be charged for the

“crime” of failing to file returns for one or more of the years 1990-1992.

80 There was a substantial probability that Appellant would be charged for the crime of perjury or tax fraud if the IRS deemed Appellant’s signed tax forms to be false or unsupported by existing law in any material matter.

90 Dr. Roberts was charged in this case by indictment with two counts of wilful failure to make income tax returns, covering the years 1993 and 1994.

100 The indictment simply charged a violation of 26 U.S.C. § 7203, which prescribes punishment for the violation of any of a number of other statutes.

110 Repeated requests by Dr. Roberts for a true, correct, and complete recitation of the statutes that the government claimed supported its allegation Dr. Roberts was “required by law,” was rebuffed. (Arraignment transcript p. 5 - 15) The statute was never sent to him, nor has anyone claimed to have sent him the statute or statutes.

120 At June 14th pretrial, the Trial Court refused to answer a question regarding whether a recitation of statutes in the order of June 14, 2000, contained a true, correct, and complete list of the statutes the violation of which Dr. Roberts stood accused. (Trial transcript p. 7)

130 In the June 14, 2000 Order, the Trial Court recited certain statutes, which

-xxviii- demonstrated his incorrect understanding that 26 U.S.C. § 6012 is in the same chapter of Title 26 as Section 1 of Title 26.

140 Dr. Roberts was never informed, either in the indictment or in any other pleading or proceeding, by the Trial Court or the government, of a list of statutes the Grand Jury relied upon to allege Dr. Roberts “was required by law,” which were, would or could be represented as a true, correct, and complete list of the statutes the violation of which Dr. Roberts was accused and for which he was held to answer.

150 Dr. Roberts was never informed that he was charged with wilful failure to pay any tax.

160 The indictment of Dr. Roberts was fatally defective.

170 A jury returned a guilty verdict on both counts on June 29, 2000, and the sentence was imposed pursuant to the “Sentencing Reform Act of 1984.”

180 Judgment was originally entered on September 26, 2000, and then as amended on October 4, 2000, wherein Dr. Philip E. Roberts is ordered to pay a special tax assessment of $ 50.00 (25 x 2 Counts), a fine of $ 30,000 and restitution in the amount of $ 58,868.18.

190 On the facts of this case, all agree that if the Trial Court had found no tax loss, the offense level would have been 6. Under offense level 6, sentencing

-xxix- guidelines would have provided for a sentence of 0 - 6 months confinement, and

$500 to $5,000 fine.

200 On the facts of this case, if the tax loss were determined to be $40,000 to

70,000, the offense level would be 13.

210 The Trial Court sentenced Dr. Roberts based on an offense level of 13.

220 The Trial Court first entered a judgment finding a tax loss on the statutory authority of Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or after September 13, 1994, but before April 23, 1996.

230 On October 3, 2000, Dr. Roberts informed the Court that these chapters deal with sexual abuse (109A), sexual exploitation of children (110), domestic violence and stalking (110A), and telemarketing fraud (113A).

240 On October 4, 2000, the Court entered an amended judgment which completely left off any finding of tax loss or authority for a finding of tax loss in this case. The amended judgment still required restitution of $58,868.18.

250 On October 10, without explanation, the Trial Court denied a stay or release pending appeal.

260 At sentencing, Special Agent Tom Bryan admitted there was no outstanding and unpaid tax assessment. (Sentencing transcript p. 35) Dr. Roberts cited statutory authority prohibiting any assessment of a tax prior to compliance with

-xxx- statutorily guaranteed due process, save for exceptions not relevant here. See

270 Tom Bryan, the sole “expert” for the government at the Sentencing phase admitted that he had little understanding of statutory assessment procedures.

(Trial transcript p. 38)

280 Tom Bryan admitted that he did not know if an income tax would be owed on the day of assessment. (Sentencing transcript p. 36) This indicates that he does not know when an income tax is “owed” and the legal acts which must occur before an income tax is “owed.”

290 Tom Bryan also tacitly admitted that there was $12,000 paid into Dr.

Roberts account which was at the present time not credited to any tax liability.

(Sentencing transcript p. 35)

300 The sole “expert” for the government at Sentencing presented no delegation of authority. At trial, the request to see any delegation of authority to Tom Bryan, the chief IRS investigator and witness, the subpoena commanding the production of the delegation of authority was summarily quashed on the Trial Court’s own motion. (Trial transcript p. 453) The same documents were subpoenaed to the sentencing hearing. The Trial Court asked what a “delegation of authority” was, then cut off counsel in mid sentence. The government falsely claimed that the issue was previously decided, whereupon the Trial Court sustained the objection to

-xxxi- any questioning about any delegation of authority. (Sentencing transcript p. 43)

310 Later questioning failed to disclose any delegation of authority. (Sentencing transcript p. 53)

320 The Trial Court refused to allow any questioning concerning whether or not the IRS would accept Mr. Bryan’s figures as a correct assessment. (Sentencing transcript p. 52)

330 On the one hand the District Court found section 7203 a command of the government to make a tax form to Dr. Roberts, which it clearly is not, and on the other hand, failed to comply with the maximum fine provided in section 7203.

340 Make and File have distinct different meanings both in statute and at the common law.

350 Neither a Revenue Agent nor a Special Agent of the I.R.S. qualify as

“experts” without a proper foundation.

360 Federal Law does not specify any “exempt amount” as set forth in Court’s

Jury instruction # 8 and # 9.

-xxxii- SUMMARY OF APPELLANT'S ARGUMENTS

I The District Court erred in denying Dr. Roberts Motion to Dismiss,

holding that the United States could on the one hand require Dr.

Roberts to make and file a written sworn tax statement for the years

ending 1993 and 1994, on threat of criminal sanctions, while on the

other hand permitting the use of previously or subsequently filed forms

as evidence of an element of the crime, namely knowledge of a legal duty

to “make” or “file” “returns.”

In this case, the only evidence that the Government could use to establish knowledge of the specific legal requirement is previously or subsequently made and signed under penalty of perjury tax forms.

Therefore, the filing of tax forms in 1993 and 1994 uncontrovertibly would have constituted testimony in the nature of a confession admitting to an element of

“crimes” committed in 1990, 1991, and 1992.

This Court cannot punish Appellant for refusing to submit testimony, under penalty of perjury, which would have incriminated him regardless of the substance of the testimony given. Appellant could not have protected his privilege against self incrimination in any way except by refusing to file the form. A filed form,

-xxxiii- any form, would have been just as incriminating on the issue of knowledge fo the law as any other form, regardless of the answers given.

The grand jury indictment did not contain a citation to the statute thought to have been violated. This citation is required by FRCP 7(c)(1), by 8th Circuit caselaw, and by US Supreme Court caselaw.

Despite repeated attempts, the District Court would not provide or compel the Government to provide a “true, correct, and complete” list of statutes thought to have been violated by Dr. Roberts.

Where an indictment cites a statute which in turn references another statute as the basis for the prohibition, the indictment must also cite the underlying substantive statute. That was not done in this case, nor was the Appellant ever informed of the nature and cause of the charges against him.

III. The District Court erred in denying a motion for its recusal, after

-xxxiv- having stated the District Court was going to put Dr. Roberts in jail, and after committing Dr. Roberts to jail in violation of clearly established 8th Circuit precedent, where the District Court repeatedly made rulings and orders which clearly demonstrated prejudice and rendered it impossible to receive a “fair trial.”

The District Court stated that he was going to put Dr. Roberts in jail, early on in the proceedings. Throughout the proceedings, the District Court ruled against Dr. Roberts which had no basis in law or fact.

The District Court put jurors into the pool without notice to defense counsel, and refused to ask questions about bias on taxes even after a venireman volunteered bias against the legitimate attempts at tax reduction engaged in by defense counsel.

The District Court first cited authority for a finding of tax loss and restitution which was clearly inapplicable. When informed that the authority was wholly inapplicable, the District Court entered an amended order which removed all reference to legal authority, made no express finding of tax loss, yet enhanced

-xxxv- the sentence and ordered restitution on the basis of the phantom tax loss.

This action violates all standards of common sense and decency. The recent case involving Jim Guy Tucker, former Arkansas Governor, demonstrates that the government must prove tax loss. Therefore, where the District Court is embarrassed to even make an express finding of tax loss, and where as here no evidence supports the finding of tax loss, the restitution and enhancement are illegal.

Where the District Court makes no specific findings, the appellate court simply wants "the assurance that the trial court has come to grips with apparently irreconcilable conflicts." See Tate v. Weyerhaeuser Co., 723 F.2d 598 (8th Cir.

1983); See also Garner v. St. Louis Southwestern Railway Company, 676 F.2d

1223, 1228 (8th Cir. 1982). In this case the District Court has shown studied indifference to irreconcilable conflicts with respect to the claimed tax loss.

V The District Court erred in denying Dr. Roberts his right to confront his accusers, compel witnesses and testimony to aid in his defense, to a fair and impartial jury, present evidence to the jury, to have the jury instructed according to current federal laws, and failing to have venue

The District Court refused to allow the testimony of Laura Blackorby, wife of the US Attorney prosecuting the case, and the testimony of Magistrate Judge

-xxxvi- Beverly Jones, a client and acquaintance of Dr. Roberts. This is especially pernicious since the government used the pretext that they would be calling

Magistrate Jones to force her recusal, then blocked her testimony on behalf of Dr.

Roberts.

The Government got free rein for anything that happened in the past 20 years. They showed a picture of a yacht, as if a yacht has anything to do with any of the elements of this case. The Defendant was rigidly limited to events happening in 1993 or 1994, or up to April 15, 1995. Proof of good faith attempts to ascertain the law were suppressed.

-xxxvii- APPELLANT’S ARGUMENT

Summary of the case

Appellant was charged with failure to make a tax form for the years 1993 and 1994. The indictment did not specify what statute required the making of a form, nor did it specify the form thought to have been required.

At arraignment, Appellant repeatedly asked the District Court to specify the statute the violation of which he was charged. The District Court refused to state what statute was thought to require the omitted conduct, or to compel the government to disclose that statute or statutes, saying that these matters would be addressed later. Appellant offered to plead if he was informed of the nature and cause of the accusation, or at least a citation of the list of statutes thought to have been violated. The District Court refused, and entered a not guilty plea on

Appellant’s behalf.

On June 14, 2000, the District Court entered an order purportedly summarizing the case, with citation to certain statutes. The District Court refused to say that the statutes set forth in that order were the “true, correct, and complete” set of statutes thought to have been violated by Appellant. At no time would the

District Court commit to a specific statute or set of statutes as the “true, correct, and complete” set of statutes thought to form the basis for this prosecution, or

1 require the Government to say which statutes formed the basis for its prosecution.

Dr. Roberts was denied a motion for a bill of particulars.

Appellant had discussed his tax situation with Magistrate Beverly Jones prior to the years for which the indictment was brought. The District Court refused to allow Appellant to call her to obtain testimony as to his good faith. The District

Court also refused to allow Appellant to call Laura Blackorby, wife of Assistant

US Attorney David Blackorby. The District Court also refused to allow Appellant to elicit testimony from Charles Leflar on the ground that the events for which testimony was sought took place outside the 1993-1994 time frame.

Yet the District Court allowed the Government to elicit testimony, over objection, of events ranging from 1980 through 2000, much of it on subjects that had no purpose whatever other than to inflame the passion and prejudice of the jury.

The District Court required defense counsel to clear questions from the bench before asking them, for a substantial part of the trial. (Trial transcript at

164, 239, 361, 362, 363) The District Court objected for the Government or invited the Government to object at times.

After a jury verdict of guilty, the District Court took testimony from Tom

Bryan concerning the claim of tax loss. Mr. Bryan confessed that he knew very

2 little about civil assessment procedures, and admitted that the IRS held $12,000 in funds paid to the IRS by Dr. Roberts but not applied to any account.

The District Court entered a judgment and commitment order, sentencing

Roberts to a fine of $30,000, restitution of $58,868.18, sixteen months in prison, two years of probation, and a tax of $50 per count. When confronted with the fact that the District Court’s cited authority for the restitution made no sense whatever, the District Court simply omitted all reference to authority, and furthermore omitted any specific finding of tax loss.

I The District Court erred in denying Dr. Roberts Motion to Dismiss, holding that the United States could on the one hand require Dr. Roberts to make and file a written sworn tax statement for the years ending 1993 and 1994, on threat of criminal sanctions, while on the other hand permitting the use of previously or subsequently filed forms as evidence of an element of the crime, namely knowledge of a legal duty to “make” or “file” “forms.”

A. The making of the tax form itself, by Appellant, for the years 1993 and 1994, would have been inherently and inescapably incriminating.

The 8th Circuits standard for reviewing the district court's denial of Dr.

Roberts motions to dismiss the indictment is de novo. See United States v.

Nattier, 127 F.3d 655, 657 (8th Cir. 1997), cert. denied, 118 S.Ct. 1398

(1998)United States v. Smith 171 F.3d 617, @ 619 (8th Cir. 1999)

This appeal raises the question whether the government can compel

3 Appellant by unspecified law to answer, sign under penalty of perjury, and submit to the United States, a written tax statement (“form”) for any given year on the one hand; and then on the other hand to use the fact of the making of forms for previous years as evidence (in this case the sole evidence) of an element of this alleged crime.

The answer to this question must be no.

The term “form” or “tax form” is substituted for the term “form” because of the issues raised in this appeals demands as much.

In this case, the Government introduced previously made tax statements as evidence against Appellant, over objection that the forms used were ruled compelled by the Court. The purpose of the admission of the completed tax forms was not to show any falsehood or perjury. The purpose of the admission of the forms was to establish knowledge of a statutory duty to make or file a separate form for either 1993 and or 1994. This knowledge is an element of the crime, even under the instructions set forth in the District Court’s instruction # 8. This principle is derived from the statutes and caselaw. See Bryan v. United States,

524 U.S. 184 (1998), where the Court said:

.. In certain cases involving willful violations of the tax laws, we have concluded that the jury must find that the defendant was aware of the specific provision of the tax code that he was charged with violating. See, e.g., Cheek v. United States, 498 U.S. 192, 201 (1991).

4 (Emphasis added)

It would seem that such a requirement would be the easiest of all requirements to satisfy. If any person failed to file or make “any” tax form, the

IRS could simply send a copy of the pertinent statutes by certified mail.

Thereupon, one could scarcely deny knowledge, unless one were illiterate.

Appellant ceased making and filing federal 1040 tax forms in 1990. As a result, he was in contact with the IRS by letter since 1990. Appellant never refused to perform any act required by law. In fact, Appellant repeatedly asked for a copy of the statute requiring him to make or file any specific tax form[s]. The statute was never sent to him, nor has anyone claimed to have sent him the statute.

Furthermore, Appellant filed suit not once but three times in the Western

District of Arkansas, asking for a declaratory judgment concerning whether or not he could be compelled to make or file a tax form, where an appreciable possibility existed that such testimony would be used against him in a criminal case. The filing of these lawsuits began in 1999. The District Court dismissed all these cases on grounds of sovereign immunity. In the last case, Appellant filed an appeal with the 8th Circuit Court of Appeals, which has been fully briefed in this Court for more than 6 months.

The Government has both informally and for the purposes of this proceeding

5 refused to cite any statute or regulation requiring the making or filing of a federal

1040 income tax forms. Rather, the Government chooses to rely exclusively upon circumstantial evidence both as to the existence of the statutory requirement, and as to Appellant’s knowledge of that requirement. When Appellant sought disclosure of the statutory basis for the requirement at trial, the District Court threatened to declare a mistrial.

Under the Government’s theory, if Appellant ever made or filed a tax form, signed under penalty of perjury, that is independent admissible evidence that

Appellant was required to make and file a form, not only for that year, but for all other years. Furthermore, so the theory goes, that making or filing of a tax form is the only evidence needed to show that Appellant had actual knowledge of the specific law requiring the filing of those tax forms regardless of whether Appellant claims no such requirement exists under any set or sets of statutes in the Internal

Revenue Code.

The facts of this specific case must be carefully laid out. Appellant had not made forms for 1990, 1991, and 1992. Therefore, one can safely assume that there was a substantial probability that he would be charged for the “crime” of failing to make forms for those years. The only evidence that the Government would use to establish knowledge of the specific legal requirement is previously or subsequently

6 made and signed under penalty of perjury tax forms.

Therefore, the filing of tax forms in 1993 and 1994 uncontrovertibly would have constituted testimony in the nature of a confession admitting to an element of

“crimes” committed in 1990, 1991, and 1992.

Fundamentally, the first question the 8th Circuit must answer in this case is whether the United States can punish Appellant for refusing to submit testimony, under penalty of perjury, which would have incriminated him regardless of the substance of the testimony given. It is extremely important to note that the contents of the written form is immaterial, for 5th Amendment analysis, on this subpoint.

Appellant might have pleaded the 5th Amendment to every question, without in any way protecting his right not to be a witness against himself, or his privilege against self incrimination. A form that claimed the 5th Amendment at every possible opportunity would have been just as incriminating as one that answered every question fully and accurately.

In this case, we must examine the principles of United States v. Sullivan, 274

U.S. 259 (1927), and compare those principles to the principles announced in

Garner v. United States, 424 U.S. 648, 653(1976), and the cases embedded therein.

In Sullivan, the Court stated:

... In determining the nice balance that exists between the constitutional rights of the individual and the sovereign's right to compel information

7 necessary for governmental purposes the courts will go as far "as may be consistent with the liberty of the individual." This is illustrated in Mason v. United States, 244 U.S. 362, and Ex parte Irvine, 74 Fed. 954. The taxpayer will not be permitted to set himself up as the judge of his rights under the Fifth Amendment. He must comply with the Government's demand on him for information at least to the point where the information would tend to incriminate. Podolin v. Lesher Warner Dry Goods Co., 210 Fed. 97. In this case respondent failed to raise any claim of immunity he might have had under the Fifth Amendment in the proper manner and form, and in the failure to do so his privilege must be deemed to be waived. United States ex rel. Vajtauer v. Comm'r of Immigration, 273 U.S. 103. (Emphasis added)

Next one must examine the holding of Garner v. United States, where the

Court said:

The 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).

The information revealed in the preparation and filing of an income tax form is, for purposes of Fifth Amendment analysis, the testimony of a "witness," as that term is used herein.

Finally, we must examine three cases embedded in Garner, for guidance in circumstances where the very act of making of the form, signed under penalty of perjury constitutes a testimonial and incriminating act. The Garner Court said, at

Garner relies next on Mackey v. United States, 401 U.S. 667 (1971), the relevance of which can be understood only in light of Marchetti v. United

8 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 forms 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 forms also would incriminate, the Court held that the privilege could be exercised by simply failing to file.

Appellant could not by the omission of any statement or information requested on the tax forms for the years 1993 and 1994 negate this implied testimony of knowledge of the “requirement” to make and file tax forms in 1992 and previous years. Perhaps Garner could have omitted the admission that he was a gambler, or claimed the 5th on his form as to his occupation. No such option existed for Appellant. The omission for which Appellant is incarcerated was the only option save the admission, by Appellant, of an essential element or at least evidence of an element of, another completely independent “crime” for which the Government could have prosecuted him, under the Government and the

District Court’s theory of 26 U.S.C. § 7203 prosecutions.

In fact, for every year except the first year of failure to make, the nonfiler is necessarily brought within circumstances under which Garner plainly states that nonfiling necessarily constitutes a valid claim of the 5th Amendment privilege.

Appellant’s situation is uncontrovertibly one where the courts must sustain his

9 claim of privilege. See United States v. Murdock, 284 U.S. 141 (1931), where the

Court said:

...The courts should sustain the witness's claim of privilege unless it is clear that the evidence obtainable from his testimony could not by any possibility incriminate him. Ballman v. Fagin, 200 U.S. 186; Internal Revenue Agent v. Sullivan, 287 Fed. 138.

Pursuant to the rulings of the District Court in Appellant’s trial, tax forms made by a CPA and signed under penalty of perjury by Appellant (whenever filed) are proof of an element of the offense, namely knowledge of legal duty to make a form. The Government cannot compel that information from Appellant. The

Government is duty bound to prove its case by the independent labor of its own officers, not by the simple but cruel expedient of forcing the information from the defendant’s own lips. Mitchell v. United States, 526 U.S. 314 (1999)

B. Any mandatory requirement that Appellant make a federal income tax form for the years 1993 and 1994, which is only deemed complied with if signed pursuant to or under penalty of perjury, would have subjected Appellant to an appreciable possibility of prosecution, pursuant to 26 U.S.C. § 7206, and thus forbidden pursuant to the Fifth Amendment and plain error by the District Court.

Under section 6702, failing to sign a federal income tax form has been held by the 8th Circuit to be sufficient cause to uphold a $ 500.00 penalty. See Boomer v. United States, 755 F.2d 696, 697(8th Cir. 1985). In a similar case at the 7th

Circuit Court of Appeals, the court said that “an unsigned form does not qualify as

10 a form as a matter of law.” See United States v. Moore, 627 F.2d 830, 834 (7th Cir.

1980).

Federal income tax forms are signed under penalty of perjury. If the form is not legally and factually correct, as may be adjudged by the courts, the signer is subject to felony prosecution for tax evasion or tax fraud.

The Sullivan Court appears to address answering certain questions on a tax form and the relevance of claiming the Fifth Amendment as to some of the questions. The Garner court clearly is determining that a Tax Form, which is signed voluntarily under penalty of perjury and is the testimony of a witness, is admissible evidence under Fed.R.Ev. Rule 404(b) against the Defendant in that case. In Garner, the Defendant is the person who “voluntarily signed” his own confession. “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). “To sustain the privilege, it need only be evident from the implications of the questions, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosures could result.” Hoffman v. United States,

341 U.S. 479, 486(1951)

Under this “rule of law” which is well established and well known, a person

11 could simply refuse to make or file a written statement under penalty of perjury because the government could use any written statement to establish “knowledge of the [hypothetical] law” test for prosecution for other tax years.

The general rule that ignorance of the law or a mistake of law is no defense to criminal prosecution is deeply rooted in the American legal system. See, e.g.,

Lambert v. California, 355 U.S. 225, 228 (1957); Liparota v. United States, 471

U.S. 419, 441 (1985) (WHITE, J., dissenting). Based on the notion that the law is definite and knowable, the common law presumed that every person knew the law.

This common law rule has been applied by the Court in numerous cases construing criminal statutes. See, e.g., United States v. International Minerals & Chemical

Corp., 402 U.S. 558 (1971); Hamling v. United States, 418 U.S. 87, 119-124

(1974); Boyce Motor Lines, Inc. v. United States, 342 U.S. 337 (1952).Cheek v.

United States, 498 U.S. 192, 1999 (1991)

This is not true in wilful failure to file cases. In United States v. Murdock,

290 U.S. 389 (1933), the Court recognized that:

"Congress did not intend that a person, by reason of a bona fide misunderstanding as to his liability for the tax, as to his duty to make a form, or as to the adequacy of the records he maintained, should become a criminal by his mere failure to measure up to the prescribed standard of conduct." Id., at 396.

Id @ 200.

12 The test in Appellants case involved the term “willfulness.” The Supreme

Court established this “rule of law” by stating “[w]illfulness, as construed by our prior decisions in criminal tax cases, requires the Government to prove that the law imposed a duty on the defendant, that the defendant knew of this duty, and that he voluntarily and intentionally violated that duty. Id @ 201

The Supreme Court also said in Cheek that “the Murdock-Pomponio line of cases does not support such a position. Those cases construed the willfulness requirement in the criminal provisions of the Internal Revenue Code to require proof of knowledge of the law. This was because in "our complex tax system, uncertainty often arises even among taxpayers who earnestly wish to follow the law" and "`[i]t is not the purpose of the law to penalize frank difference of opinion or innocent errors made despite the exercise of reasonable care.'" United States v.

Bishop, 412 U.S. 346, 360-361 (1973) (quoting Spies v. United States, 317 U.S.

492, 496 (1943)). Id @ 205

There is also no question that any Fifth Amendment claims made by

Appellant must also be construed to have been made with “knowledge.” “A witness who revealed information instead of claiming the privilege lost the benefit of the privilege.” U.S. v. Kordel, 397 U.S. 1, 7-10(1970)

It is also well established that there “is no ‘tax crime exception’ to the Fifth

13 Amendment.” U.S.A. v. Troescher. 99 F.3d 933, 936(9th Cir. 1996) 26 U.S.C. §

6702 directs Congress will “judge” the correctness of any written statement made and submitted under penalty of perjury. 26 U.S.C. § 7206 makes any information submitted on any written statement subject to criminal penalties.

This Court cannot dispute Appellant’s claim that written statements submitted can and will be used against the submitting person in a criminal case.

The District Court is well aware of Appellant’s stance on signing written statements under penalty of perjury, or for that matter signing any written statement at all which he does not agree with in form or substance, or the verity of which he is uncertain.

The Sullivan decision is said to stand for the proposition that a person cannot simply fail to make or file a tax statement with the United States based upon Fifth

Amendment implications involving testimony. The Garner Decision says any person who does make and submit a tax statement has waived the Fifth

Amendment Privilege against Self-Incrimination as to the information revealed under penalty of perjury. Based on the Government’s theory in Appellant’s case,

Appellant is unable to refuse to make a tax statement under penalty of perjury on the one hand, and at the same time is said to have waived the Fifth Amendment as to all tax statements he had, will or should have made. This cannot be the law.

14 Because the criminal conduct alleged against Appellant was protected by the

Fifth Amendment to the Constitution, namely, the compelled mandatory requirement to make a written tax statement, signed pursuant to or under penalty of perjury, on or before April 15, 1994, for the year ending 1993, and on or before

April 15, 1995, for the year ending 1994, any claimed requirement, by the government or the Grand Jury, that Appellant failed to make a form for the either years ending 1993 or 1994, as a crime, are directly forbidden pursuant to the direct language of the Fifth Amendment and the law of the case. This is regardless of whether Congress mandated any specific requirement to act, which they have not so done.

C. Requiring Dr. Roberts to make a document every year on April 15, that is likely to be construed as a confession of a specific element of a crime, and a voluntary waiver of the Fifth Amendment, with threat of prison for failure to act, amounts to compelled document production and testimony in violation of the fourth and fifth amendments.

Dr. Roberts can not be compelled to produce a “signed under penalty of perjury form” and surrender it to the United States. That is in the realm of

Document Production. The Fifth Amendment is valid when exercised with respect to a compelled document production that is testimonial and incriminating. In re

The Grand Jury Subpoenas, 191 F.3d, 173(2nd Cir. 1999). Because the act of complying with the government’s demands testifies to the existence, possession, or

15 authenticity of the things produced, “such production may implicate the Fifth

Amendment right against self-incrimination.” Baltimore v. Bouknight, 493 U.S.

549, 555(1990)

Petitioner cannot be compelled to answer questions under penalty of perjury, knowing that no immunity has been offered and knowing that the United

States plans to “judge” the answers to the questions answered under penalty of perjury. Dr. Roberts had real concerns before he was indicted and has evidence that those concerns were not imaginary but real and substantial at present. He now has been found guilty of Wilful failure to make and sign a Federal Income Tax

Form to the United States for the years 1993 and 1994 and has lost his liberty. The conviction should be reversed.

The Indictment claims Dr. Roberts violated 26 U.S.C. § 7203 by failing to make a federal income tax form for the years 1993 and 1994.

26 U.S.C. § 7203 merely says that if any of a certain class of laws are

16 violated, (those laws in Title 26 requiring the making of a form, list, or statement) then the lawbreaker shall be liable to punishment as set forth in 26 U.S.C. § 7203.

26 U.S.C. § 7203 does not specify what statutes are covered by 7203. It merely prescribes the punishment for the violation of other unnamed statutes.

The indictment fails to identify which particular law the Grand Jury found required Dr. Roberts to make a form and submit it to the United States

Government. The indictment is clearly deficient for failure to identify the law allegedly violated.

Dr. Roberts could not find any such statute. Neither the Court nor the

Government would direct Appellant to any particular law, or set of laws, thought to be a true, correct, and complete set of the laws the violation of which Dr. Roberts was charged. After repeated attempts to obtain this information, the Court, in its

June 14, 2000 order, set forth an incorrect list of statutes.

Furthermore, the Court studiously disclaimed any responsibility for the list, steadfastly refusing to say that the list was true, correct, or complete. Thus neither the Court, the Government, nor the words of the Grand Jury identified the laws the violation of which Dr. Roberts was held to answer. Yet the Court found the ethereal and ever shifting claims of the Government to be “the law,” however the

Government might define the law at a given time.

17 If the government was to prove that “the law” required Dr. Roberts to make or file a signed form with the United States, under penalty of perjury, and to construe said act as a waiver of his Fifth Amendment rights under the Garner decision, then at minimum, the United States, through the grand jury, must be required to allege with specificity each and every section in each and every statute upon which they rely to claim a section 7203 violation against Dr. Roberts.

Dr. Roberts moved for a Bill of Particulars which the Court Granted in part and denied in part. The Court ordered the government to provide the specific form

Dr. Roberts failed to make or file. The government tendered to Defense Counsel copies of a generic blank 1040 Form for the years 1993 and 1994. The Court went on to rule that the indictment need not contain citation to the statute which requires a tax form to be filed, saying that it is sufficient if the indictment cites only 26

U.S.C. § 7203.

Lacking any 8th Circuit caselaw to support the position, the Government and the Court cited United States v. Vroman, 975 F.2d 669, 670(9th Cir. 1992).

Such a vague, nonspecific indictment fails to meet the requirements of due process, and furthermore violates both 8th Circuit caselaw, and United States

Supreme Court caselaw subsequent to Vroman. See Goodloe v. Parratt, 605 F.2d

1041 (8th Cir. 1979), where the Court said:

18 [9] The fundamental right "to be informed of the nature and cause of the accusation," guaranteed criminal defendants by both the Nebraska and United States Constitutions, U.S.Const. Amend. VI; Neb.Const. art. 1, § 11, is implemented primarily by charging papers which contain the elements of the offense so as to fairly inform a defendant of the charge against which he must defend. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); United States v. Brown, 540 F.2d 364, 371 (8th Cir. 1976); State v. Harig, 192 Neb. 49, 56-57, 218 N.W.2d 884, 889 (1974). This most basic ingredient of due process, a person's right to reasonable notice of the charge against him, is incorporated in the Fourteenth Amendment to the United States Constitution and thus cannot be abridged by the states. See In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948); Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948); DeJonge v. Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 81 L.Ed. 278 (1937); Watson v. Jago, 558 F.2d 330, 338 (6th Cir. 1977).[fn12]

[10] An information in the words of the statute creating the offense will generally suffice, Hamling v. United States, 418 U.S. at 117, 94 S.Ct. 2887, but the requirement of fair notice is only met if "those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished." Id. (quoting United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1882)); see also State v. Abraham, 189 Neb. 728, 729-30, 205 N.W.2d 342, 343-44 (1973).

[11] The indictment upon which Goodloe was tried charged that he did, in the words of the statute, "unlawfully operate a motor vehicle to flee in such vehicle in an effort to avoid arrest for violating any law of this State." There is no indication from this statutory language that, as the trial court held and instructed the jury, an additional element must be proven for conviction: actual commission of the violation of state law for which the defendant fled arrest. Once prior violation of a specific state statute became an element of the offense by virtue of the trial court ruling, Goodloe was entitled not only to notice of that general fact, but also to specific notice of what law he was alleged to have violated. See Keck v. United States, 172 U.S. 434, 437, 19 S.Ct. 254, 43 L.Ed. 505 (1899); United States v. Cruikshank, 92 U.S. 542, 565-66, 23 L.Ed. 588 (1875).[fn13] As the trial court's exclusion of evidence pertaining to the suspended license charge illustrated, whether

19 Goodloe had violated a specific state statute was a crucial factual determination. In such a situation, an information which describes the offense in generic terms fails to adequately inform of the specific offense charged so as to allow preparation of a defense. Russell v. United States, 369 U.S. 749, 764-66, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Hess, 124 U.S. 483, 487, 8 S.Ct. 571, 31 L.Ed. 516 (1888). Thus the information, while couched in the language of the statute, nevertheless failed to adequately describe the offense charged because it did not allege an essential substantive element. See United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1882); see also Dutiel v. State, 135 Neb. 811, 284 N.W. 321 (1939).

(Emphases added)

This case is squarely within the parameters of Goodloe. 26 U.S.C. § 7203 provides punishment only for persons who violate some other law. It is therefore mandatory that said law be cited in the indictment. Appellant asked for this information many times, but was rebuffed each time.

United States Supreme Court precedent imposes the same requirement. Bryan v. United States, 524 U.S. 184 (1998):

.. In certain cases involving willful violations of the tax laws, we have concluded that the jury must find that the defendant was aware of the specific provision of the tax code that he was charged with violating. See, e.g., Cheek v. United States, 498 U.S. 192, 201 (1991). (Emphasis added)

The indictment is therefore fatally defective. When an essential element of an offense has been omitted from the indictment, a violation of the Fifth

Amendment's grand jury requirement ensues. This legal principle is separate and

20 distinct from the 6th Amendment right to be informed of the nature and cause of the accusation, and the 5th Amendment’s restriction against double jeopardy. The grand jury requirement is ably discussed in United States v. Denmon, 483 F.2d

1093 (8th Cir. 1973), where the 8th Circuit reversed a conviction for an insufficient indictment, instructing that the conviction be set aside and the indictment be quashed. Certainly, such an indictment cannot support the incarceration of any person.

Here, the indictment clearly fails to allege the statute requiring the making of any income tax statement, and fails to allege the form of return allegedly required.

Both omissions are fatal to the indictment. Goodloe v. Parratt, supra, is a classic and unassailable precedent for the proposition that an indictment must include not only citation to a statute requiring or prohibiting specific conduct, but furthermore specific citation to and notice of the precise statute or part thereof thought to have been violated, and the conduct violative thereof. Federal Criminal Rule 7(c) also requires the citation of the statute alleged to have been violated.

The 8th Circuit can sustain the conviction of Appellant only at the expense of disregarding its own precedent, US Supreme Court precedent, and the requirements of the Federal Rules of Criminal Procedure. To sustain the conviction in this case, the 8th Circuit would have to seize upon older case law

21 from another circuit, now vitiated by US Supreme Court precedent, in order to inflict punishment on Appellant for an as yet undisclosed law.

The indictment cannot be fixed by a “telephone conference” or by the

“United States Attorney Michael Yurkanin” where the omitted allegation is of a material fact or element required to be determined by the trier of fact. See United

States v. Dolan, 120 F.3d 856 (8th Cir. 1997); quoting United States v. Helmel, 769

F.2d 1306, 1322 (8th Cir. 1985) ("While a bill of particulars cannot save an otherwise invalid indictment, it can cure deficiencies as to form.") In this case, the government refused to even file a “Bill of Particulars” as to the Magistrate’s

Report and Recommendation ordering such, to which the Government failed to timely object.

An indictment is legally insufficient on its face if it does not contain all of the essential elements of the offense charged, fails to fairly inform the defendant of the charges against which he must defend, and fails to allege all the sufficient information to allow a defendant to plead a conviction or acquittal as a bar to a subsequent prosecution. U.S. v. Fleming, 8 F.3d 1264(8th Cir. 1993); quoting

United States v. Young, 618 F.2d 1281, 1286 (8th Cir.), cert. denied, 449 U.S. 844,

101 S.Ct. 126, 66 L.Ed.2d 52 (1980).

The filing of a bill of particulars is not equivalent to the filing of a

22 “superceding indictment.” U.S. v. Huntsman, 959 F.2d 1429(8th Cir. 1992). "A criminal statute, after if not before it is judicially construed, should have a discernible meaning." Tanner, 107 S.Ct. at 2753. U.S. v. Minarik, 875 F.2d,

1186(6th Cir. 1989). Under section 7203, the phrase “...make a form,...” does not specify which form the statute is seeking to reach or for that matter what the meaning of the term “form” means. Since this statute does nothing to clarify this issue, the indictment at minimum should specify some other statute and the specific form of form the law required to be made or filed by that statute. The indictment in this case fails to allege any specific form required made and then filed by Dr. Roberts. Likewise, the Magistrate’s Report and Recommendation clearly finds, with no objection by the government, that the indictment fails to properly allege which form of return the Grand Jury found Dr. Roberts was required to make or file.

The indictment omits the bare essential elements of a section 7203 charge.

Appellant is unable to plead the convictions as a bar to a subsequent prosecution, violating the constitutional proscription of double jeopardy.

Also, Federal Criminal Rule 7(c) requires the citation of the statute alleged to have been violated. The government embarked upon this Kafkaesque prosecution knowing that its omissions would be violative of the Rule, and

23 furthermore exceedingly prejudicial to Dr. Roberts.

The indictment either stands or falls upon its own merits. Any change in the language of the indictment may be made only by a grand jury, not the US Attorney or the Court. In fact, a constructive amendment of an indictment is reversible error per se. U.S. v. Emery, 186 F.3d 921 (8th Cir. 1999)

[18] Mr. Emery contends that the trial court's jury instructions operated as a

constructive amendment to the indictment. A constructive amendment,

which is reversible error per se, "occurs when the essential elements of the

offense set forth in the indictment are [in effect] altered . . . by the

prosecutor or the court after the grand jury has passed upon them." United

States v. Begnaud, 783 F.2d 144, 147 n. 4 (8th Cir. 1986). Jury instructions

are usually found to have caused a constructive amendment only if they "in

effect allowed the jury to convict the defendant of an offense different from

or in addition to the offenses alleged in the indictment." Id. at 147.

See also U.S. v. Cloyd, 819 F.2d 836 (8th Cir. 1987), where the Court said:

[12] An indictment which fails to allege an essential element, however,

cannot be saved by judicial construction and, though challenged for the first

time on appeal, will not support a conviction for an offense which requires

the missing element. United States v. Camp, 541 F.2d 737 (8th Cir. 1976).

24 It is axiomatic that a defendant may not be tried on charges that were not made in the indictment. See Stirone v. United States, 361 U.S. 212, 217 (1960).

"A constructive amendment, which is reversible error per se, `occurs when the essential elements of the offense set forth in the indictment are [altered, either actually or in effect,] by the prosecutor or the court after the grand jury has passed upon them.'" United States v. Emery, 186 F.3d 921, 927 (8th Cir. 1999) (quoting

United States v. Begnaud, 783 F.2d 144, 147 n. 4 (8th Cir. 1986)) (alterations restore original Begnaud quotation), cert. denied, 120 S.Ct. 968 (2000). By contrast, "[a] variance between the indictment and proof at trial requires reversal of a conviction only if the variance actually prejudiced the defendant. The primary consideration in this determination is whether the indictment fully and fairly apprised the defendant of the charges he or she must meet at trial." Begnaud, 783

F.2d at 148 (citation omitted). U.S. v. Novak, ___ F.3d ___ (8th Cir. 2000)

It is further instructive to consider the analysis set forth in United States v.

Camp, 541 F.2d 737, 740 (8th Cir. 1976). For reasons of length the quotes are not set forth herein.

As a general rule, an indictment may not be amended. See United States v.

Burnett, 582 F.2d 436, 438 (8th Cir. 1976). The court may, however, amend an indictment by striking language that is "`merely a matter of form,'" id. (quoting

25 Russell v. United States, 369 U.S. 749, 770 (1962)), or where the language omitted is surplusage and nothing is thereby added to the indictment and the remaining allegations state the elements of an offense. Id. (citing Salinger v. United States,

272 U.S. 542, 548-549 (1926)).U.S. v. Ross 210 F.3d 916 (8th Cir. 2000)

Please note that Rule 7 does not require a citation of the statute fixing punishment for the violation of the statute violated. It requires citation of the statute “which the defendant is alleged therein to have violated.”

The District Court and the Government have wholly disregarded the 5th amendment right not to be tried except on a grand jury indictment. The conviction must be reversed, and the indictment quashed, on this ground.

III. The District Court erred in denying a motion for its recusal, after having stated the District Court was going to put Dr. Roberts in jail, and after committing Dr. Roberts to jail in violation of clearly established 8th Circuit precedent, where the District Court repeatedly made rulings and orders which clearly demonstrated prejudice and rendered it impossible to receive a “fair trial.”

The standard of review on appeal from a recusal order is abuse of discretion.

See Hale v. Carlson (In re Hale), 980 F.2d 1176, 1178 (8th Cir. 1992). Since judicial impartiality is presumed, a party seeking recusal bears a heavy burden.

Ouachita Nat. Bank v. Tosco Corp., 686 F.2d 1291, 1300 (8th Cir. 1982). The movant must identify specific behaviors which reasonably suggest judicial bias. Id.

26 at 1301.

Unfortunately, Appellant has been denied leave to file an overlength brief.

Therefore, Appellant cannot properly brief the Court on this issue, despite his best efforts. A review of the record will show that the District Court.

• Denied Roberts bail until a petition for writ of habeas corpus was

filed, then released him to avoid answering the questions raised.

• The imprisonment clearly and unmistakeably violated the law of the

8th Circuit as well as the Eighth Amendment. See United States v.

Anderson, 567 F.2d 839 (8th Cir. 1977)

• Dismissed two civil suits by Roberts requesting a determination of the

legal obligation of Roberts to file tax returns, yet kept that fact from

the jury.

• Cast himself in the role of accuser by attempting to put forth an

incomplete and inaccurate list of the statutes Roberts was thought to

have violated, in an order of 6-14-00.

• Counsel asked if the order contained a “true and correct and complete

list of the statutes thought to require Dr. Roberts to make a form.” Id

@ pg. 6, ln18 The Court responded “Well, it is – this in – the order

I think is pretty self-explanatory. And I don’t want to delay this

27 trial....” Id @ pg6, ln 21

• The District Court said its list is a “capsule” of the case or statutory

framework, obviously to keep from committing itself or the

government to any specific statute or set of statutes, and/or

implementing regulations, as requiring Dr. Roberts to make any form.

• The District Court stated to undersigned counsel at the “arraignment”

that “I’m gonna put your client in jail.”

• The time for objections was shortened from 10 days to 2.5 days.

• The de novo review of magistrates’ orders guaranteed by 28 USC 636

was reduced to a meaningless exercise. The District Court

theoretically conducted the de novo review between noon on Monday

June 26 and the next morning.

A United States judge must "disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. Section(s) 455(a).

Under Section(s) 455(a), the 8th Circuit considers whether the judge's impartiality might reasonably be questioned by the average person on the street who knows all the relevant facts of a case. Lunde v. Helms, 29 F.3d 367, 370 (8th Cir. 1994), cert. denied, 115 S.Ct. 1111 (1995); United States v. Poludniak, 657 F.2d 948, 954 (8th

Cir. 1981), cert. denied sub nom, Weigland v. United States, 455 U.S. 940 (1982).

28 In re Kansas Public Employees Retirement Sys., 85 F.3d 1353 (8th Cir. 1996)

How can anyone argue that the Court has not shown deep-seated favoritism in refusing to require the government to give a true, correct, and complete recitation of the statutes upon which the Grand Jury relied to establish a duty on the part of Dr. Roberts? Apparently the District Court knew the government could not commit to a fixed set of statutes and win. The following colloquy took place at the hearing on motions in limine:

20 MR. BLACKORBY: No, Your Honor, I don't. They're 21 very plain, even if he didn't see them in our office, they're 22 very plain in the Internal Revenue Code. They're very easy to 23 pick out.

24 MR. STILLEY: Judge, if he's got them right now, I'd 25 like to see them right now. 35 1 MR. BLACKORBY: It's not my duty to give them to him 2 now, Judge.

3 MR. STILLEY: I have not gotten them. They have not 4 been provided to me. That is a fact.

5 THE COURT: Well, the Internal Revenue Code, we've 6 got those in our chambers. If you need to look at those, you 7 can, but I'm not real sure he needs to --

8 MR. STILLEY: Well, then the question would arise, is 9 he accused of violating every statute of the Internal Revenue 10 Code?

11 MR. BLACKORBY: Your Honor, if I could cut to this, 12 we have to prove three things.

29 13 THE COURT: And hopefully Mr. Stilley know (sic) that, but 14 tell me what those three are.

15 MR. BLACKORBY: We have to prove he had a duty to 16 file a Federal Income Tax Form; i.e., he had sufficient 17 gross receipts to cause him to file a form; two, that he 18 knew he had to file a form; i.e., he had sufficient income 19 to cause him to file a form; and, three, that his failure to 20 do so was willful; that he knowingly or with bad intent 21 decided not to file a form. That's what we have to prove, 22 Your Honor, and that's what we charged in the Indictment, and 23 that --

24 THE COURT: And if you don't prove all of those 25 three, then you've not made your case.

(Emphasis added)

The government could not find any binding authority to refute Goodloe v.

Parratt, 605 F.2d 1041 (8th Cir. 1979) cited by Dr. Roberts, requiring that the indictment cite the statute thought to have been violated. The Magistrate, on his own motion, raised the US v. Vroman, 975 F.2d 669, (9th Cir. 1992) and United

States v. Kahl, 583 F.2d 1351 (5th Cir. 1978) cases, both from other Circuits, for the purpose of trying to find something to hang his hat on to deny Dr. Roberts of the relief to which he was legally entitled. This is compelling evidence of prejudice for several reasons.

Decisions from other circuits are not binding caselaw. In re Grand Jury

Subpoenas Duces Tecum, 85 F.3d 372 (8th Cir. 1996) The 8th Circuit has in the

30 past demanded the proper respect for its decisions. See Hillhouse v. Harris, 715

F.2d 428 (8th Cir. 1983) Justice McMillian of the 8th Circuit stated his feelings as to the appropriate treatment of those who decline to follow the law of the 8th

Circuit within the 8th Circuit. He said, in his concurrence to Hillhouse:

[11] McMILLIAN, Circuit Judge, concurring specially.

[12] While I concur wholly in everything said in the majority opinion, I think more is needed to be expressed. I have no wish to invite a confrontation with the Secretary. Yet, if the Secretary persists in pursuing her nonacquiescence in this circuit's decisions, I will seek to bring contempt proceedings against the Secretary both in her official and individual capacities.

Where the District Court makes no specific findings, the appellate court simply wants "the assurance that the trial court has come to grips with apparently irreconcilable conflicts." See Tate v. Weyerhaeuser Co., 723 F.2d 598 (8th Cir.

1983); See also Garner v. St. Louis Southwestern Railway Company, 676 F.2d

1223, 1228 (8th Cir. 1982). In this case the District Court has shown studied indifference to irreconcilable conflicts with respect to the claimed tax loss.

The whole underpinning of the judgment is the enhancement of points

31 arising from the claimed tax loss. If there is no tax loss, then the offense level is 6, which according to 18 U.S.C. Appx. 2T3.2. With an offense level of 6, the sentence of confinement is 0 - 6 months, and the maximum fine is $5,000.

With a tax loss of $58,000, the offense level is 13. This offense level is necessary to support the judgment of the Trial Court fixing a sentence of 16 months incarceration.

The original September 26, 2000, judgment of the Court provides on page 5 that “Findings for the total amount of losses are under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or after September 13, 1994, but before April 23, 1996.

These statutes do not remotely stand for the proposition that a “tax loss” may be assessed by this Court. These chapters deal with sexual abuse (109A), sexual exploitation of children (110), domestic violence and stalking (110A), and telemarketing fraud (113A). None of these chapters can be said, under any stretch of the imagination, to authorize a federal court to collect unassessed taxes alleged to be due.

Undersigned counsel, thinking that this statement of authority might be a scrivener’s error or language improperly borrowed from another judgment, brought the matter to the attention of the drafter of the order. She stated that she thought

32 the citations were intentional.

Upon the filing of a supplemental brief in support of motion for stay, the

Trial Court entered an amended judgment. The amended judgment contains a column for “Total Amount of Loss.” This column is blank. There is no express finding of a tax loss.

The dignity of the courts of the United States demands that a judgment at least allege that a tax loss occurred, if a citizen is to be ordered to make restitution of the loss, and subjected to additional penalties on account of the loss. If it was the finding of the Court that a tax loss occurred, then the judgment must so state, with the statutory basis for the finding. If there is no proof of tax loss, then the judgment is uncontrovertibly illegal. U.S. v. Tucker, ___ F.3d ___ (8th Cir. 2000)

The 8th Circuit has held in numerous cases that a presentence report (PSR) is not evidence, and the government has the burden at sentencing to prove fact- intensive issues such as tax loss by a preponderance of the evidence. See, e.g.,

United States v. Ramirez, 196 F.3d 895, 898-99 (8th Cir. 1999); United States v.

Shoff, 151 F.3d 889, 892-93 (8th Cir. 1998); United States v. Hudson, 129 F.3d

994, 994-95 (8th Cir. 1997)

Tax Loss is not universally defined to be “the total amount of loss that was the object of the offense” as the sentencing guidelines, 18 U.S.C. Appendix §

33 2T1.1(c)(1) states. Subsection (c)(1) says “If the offense involved tax evasion or fraudulent or false forms, statements, or other documents, the tax loss is the total amount of loss that was the object of the offense ( i.e. the loss that would have resulted had the offense been successfully completed). (Emphasis added)

Subsection 18 U.S.C. § 2T1.1(c)(2) deals with “willful failure to file tax form.” For purposes of that subsection, tax loss means “the amount of tax that the taxpayer owed and did not pay.” Therefore, it must be proven that Dr. Roberts owed a tax, and that he failed to pay the tax, at a minimum, to consider any enhancement for tax loss.

The note to 18 U.S.C. § 2T1.1(c)(2) purports to determine that the tax loss can be treated as 20% of gross income. This whole concept is fraught with error.

For one thing, why is the pretended “rule” put in a note, rather than in the sentencing guidelines themselves?

Section 18 U.S.C. § 2T1.1(c)(3) provides “If the offense is willful failure to pay tax, the tax loss is the amount of tax that the taxpayer owed and did not pay.”

Why no note about fabricating a liability that either does not exist or cannot be proven? Because a prosecution for failure to pay tax requires proof that the taxpayer was assessed for the tax and statutorily liable for the tax, but refused to pay the tax. Only after the taxpayer was afforded due process rights concerning

34 the potential liability could a criminal case be filed.

Congress spells out the procedures by which an assessment is authorized.

See 26 U.S.C. § 6201. Currently, there is no record of assessment of Dr. Roberts recorded with the office of the secretary pursuant to 26 U.S.C. § 6203 or 26 U.S.C.

§ 6204. (Sentencing transcript p. 34)

26 U.S.C. § 6213 provides that “no assessment of a deficiency in respect of any tax imposed by Subtitle A or B...and no levy or proceeding in court for its collection shall be made, begun, or prosecuted until such notice has been mailed to the taxpayer nor until the expiration of 90-day or 150-day period, as the case may be, nor if a petition has been filed....” None of these procedures have been commenced in Dr. Roberts’ case. The only notice is an indictment. Section 6012 does not carve out a exception being unless “indicted by a Grand Jury.”

The indictment would most certainly not even qualify under the standards of a notice pursuant to 26 U.S.C. §§ 6212 and 6213. If the government could not prevail pursuant to the contents of the allegations in the indictment, regarding proper notice and proper assessment, a tax loss would surely not be allowable unless satisfying the mandates of section 6213.

The Trial Court is therefore prohibited from ordering restitution or enhancing sentence on the basis of a tax loss which plainly does not exist. This is

35 especially true where the Trial Court cites no authority for a tax loss, and appears unwilling to commit to any written finding of a tax loss.

During Sentencing, the Court received testimony from the Government’s

Witness, Agent Tom Bryan, that the government lost $ 58,868.18 because of Dr.

Roberts willful failure to make a Federal Income Tax Form signed under penalty of perjury. Mr. Bryan testified he found the Government had never issued any assessments against Dr. Roberts and that he was not authorized to assess for the

I.R.S. Counsel for Dr. Roberts requested an inquiry as to the procedures of assessment and Agent Bryan testified he was unfamiliar with the procedures.

26 U.S.C. § 6213 provides that “no levy or proceeding in court for its collection shall be made, begun, or prosecuted until such notice has been mailed to the taxpayer, ...” Section 6211 provides a Definition of a Deficiency. Section

6212 provides the manner of a Notice of Deficiency. The required notice has never been mailed to Appellant, nor is there any proof suggesting that such notice has been given. There are no exceptions which apply or have applied in this case.

Therefore, the attempt to collect the alleged tax loss by this “proceeding in court” is unquestionably unlawful and in flagrant violation of pertinent statutes.

Appellant has been denied his right of a hearing under regular proceedings in conformity with the law.

36 The Sentencing Guidelines provide under 18 U.S.C. § 2T1.1 that if there is no tax loss, the point level is 6. Under the special instructions, the meaning of tax loss applies to every subsection, save “Willful failure to File Form (which is

“make”).

Section 7203 provides a separate charge for “willful failure to pay a tax.”

Under the Sentencing Commissions notes, paragraph (2) they direct that “if the offence involved failure to file a tax form, the tax loss is the amount of tax that the taxpayer owed and did not pay.’” The Commission leaves off the term “willful.”

Under subsection (3) the Commission writes “If the offense involved willful failure to pay tax, the tax loss is the amount that the taxpayer owed and did not pay.” The omission in note (2) of the term “willful” was not an oversight. Note (3) clearly provides guidance on the term. The reason why “willful” is not in note (2) is because “willful” is a term for a Jury to decide beyond a reasonable doubt. If a person was found of “willful failure to pay a tax” there would be no problem finding as note (3) provides.

Since the procedures in the law provide the due process for taking property regarding taxation, the District Court erred in skirting clearly established legal principles involving due process under 6211, 6212 and 6213. Assessment is predicate to liability for a tax. See Bull v. United States, 295 U.S. 247 (1935)

37 A tax is an exaction by the sovereign.... The statute prescribes the rule of taxation. Some machinery must be provided for applying the rule to the facts in each taxpayer's case, in order to ascertain the amount due. The chosen instrumentality for the purpose is an administrative agency whose action is called an assessment. ... Once the tax is assessed the taxpayer will owe the sovereign the amount when the date fixed by law for payment arrives.... In recognition of the fact that erroneous determinations and assessments will inevitably occur, the statutes, in a spirit of fairness, invariably afford the taxpayer an opportunity at some stage to have mistakes rectified..... If that which the sovereign retains was unjustly taken in violation of its own statute, the withholding is wrongful. Restitution is owed the taxpayer...

Since no assessment has been made, then no tax can be owed. Since no tax is owed, then no tax loss can be established. Since no Tax Loss can be established, the Court’s enhancement from 6 to 13 is unsupported by the law and the facts of the case. Tom Bryan said he was not authorized to assess nor does he know of any existing assessment against Dr. Roberts.

The Government and Court may suggest a subsequent action to recover any overcharge. In fact, Tom Bryan recognized that a civil proceeding in compliance with law might be brought to collect taxes. However, Mr. Bryan pleaded ignorance to virtually all questions of when the liability became due and whether the liability was correct.

18 U.S.C. § 3664 (e) provides that:

A conviction of a defendant for an offense involving the act giving rise to restitution under this section shall estop the defendant from denying the essential allegations of that offense in any subsequent Federal civil

38 proceeding or State civil proceeding, to the extent consistent with State law, brought by the victim.

When a State penalizes taxpayers for failure to remit their taxes in timely fashion, thus requiring them to pay first before obtaining review of the tax's validity, federal due process principles long recognized by our cases require the

State's postdeprivation procedure to provide a "clear and certain remedy," for the deprivation of tax moneys in an unconstitutional manner. Mckesson Corp. v.

Florida Alcohol & Tobacco Div., 496 U.S. 18 (1990)

In this case, the action of the District Court uncontrovertibly destroyed the statutory rights of Dr. Roberts in any subsequent civil proceedings. Therefore, the judgment of the District Court determining the the tax liability of Appellant by the testimony of one professing ignorance of such matters,1 if allowed to stand, prevents Appellant from later challenging those findings in the manner guaranteed to him by statute. The Court’s seizure of jurisdiction upon that question violates all notions of substantial justice and fair play, and thus deprive Appellant of substantive due process. Burnham v. Superior Court of Cal., Marin County, 495

U.S. 604 (1990) International Shoe Co. v. Washington, 326 U.S. 310 (1945)

There is no question the Government has not sustained any actual loss as a

1The District Court actually prohibited defense counsel from testing the mathematical abilities of Mr. Bryan. (Trial Transcript at 377) Appellant was precluded from even the most rudimentary defense of the claimed tax debt.

39 result of Dr. Roberts remaining silent with regard to the making of any Federal

Income Tax Forms. For this reason the order of restitution is untenable, and must be reversed. Appellant cannot be punished either by incarceration or by order of restitution upon the unqualified testimony presented by the Government.

Where the District Court is ashamed or otherwise unwilling to make a specific finding of tax loss, and furthermore wholly incapable of finding any authority for ordering restitution, this Court should refuse to uphold the enhancement of the sentence or fine, or the order of restitution.

V The District Court erred in denying Dr. Roberts his right to confront his accusers, compel witnesses and testimony to aid in his defense, to a fair and impartial jury, present evidence to the jury, to have the jury instructed according to current federal laws, and failing to have venue of this alleged crime, all in violation of the sixth amendment.

The proper standard of review under this heading is whether the District

Court abused its discretion. U.S. v. Molina, 172 F.3d 1048 (8th Cir. 1999)

1. Dr. Roberts was denied his secured right to compel witnesses.

Due to the truncation of the brief for the purpose of maintaining the brief length limits Appellant cannot elaborate on this issue.

2. Special Agent Laura Blackorby, the Prosecutor’s wife, should have been allowed to give her testimony before the Jury involving her involvement in the case against Dr. Roberts.

40 Due to the truncation of the brief Appellant cannot elaborate on this issue.

3. Dr. Roberts should have been allowed to interrogate the government’s chief witness.

Due to the truncation of the brief Appellant cannot elaborate on this issue.

4. The District Court intervened in every aspect of Dr. Roberts right to ask questions of witnesses called by the government by making the structure of asking questions so impossible that the Jury was sure to grasp the message the Court intended to convey.

5. The District Court erred by allowing the jury to consider a revenue agent as expert in tax laws.

6. The District Court erred in instructing the jury as to the law.

The District Court erroneously instructed the Jury with regard to “instruction

No. 8" and “9.” The District Court directed the jury that there were three essential elements to the “crime” of “failure to make a tax form as charged in Count 1" and

“Count 2" of “the indictment.”

The District Court instructed the jury “a single person under sixty-five years old was required to make a Federal Income Tax Form for 1993 (and 1994) if he had Gross Income in excess of $ 6050 ($ 6250 for 1994).

This was erroneous. No statute or set of statutes says any such thing.

41 If the government is going to continue to claim support for the District

Court’s instruction in this regard, the government must be directed and should show the 8th Circuit Court of Appeals, in the record, what specific code section says what the District Court said in instruction # 8 and # 9.

7. The District Court lacked venue over the charges alleged in the indictment.

Furthermore it is extremely difficult to argue the issue of venue without a “true, correct, and complete” list of the statutes thought to have been violated.

8. The District Court incorrectly instructed jury the term “make” and

“file” were of the same meaning.

9. Changing the jury list the morning of trial to include jurors who had recently ruled in a case tangentially involving perjury on tax forms was a manifest abuse of discretion.

The District Court released a updated Juror list the day the jury was to be selected. The problem with this list is that the jurors summoned certainly were

42 required to be notified prior to the day of the selection. Instead, the Court informed Counsel for Dr. Roberts, right before selection was to begin, that some jurors not on the original list were being called. The addition of new veniremen without the knowledge of defense counsel is at best suspicious and at most scandalous.

Apparently some of the new jurors had sat on a case in which a party had allegedly committed perjury on his tax statements. There was no need for the additional jurors.

Defendant objected to 3 jurors on the ground that they were not on the original list. The District Court explained why some people could be taken off the list, but did not explain how people could get onto the list. (Trial Transcript at

101-104)

It is manifestly unfair to call in jurors who do not appear on the list given to counsel before trial. This gives the appearance of unfairness, and opens the door for mischief and prejudice against disliked parties.

The Ninth and the Eleventh Circuits have concluded that access to the jury list must be given to taxpayer defendants who apply to the district court for early release of the list and make clear the list is necessary to obtain section 6103(h)(5) information. United States v. Schandl, 947 F.2d 462, 466-67 (11th Cir. 1991),

43 petition for cert. filed, (U.S. Mar. 17, 1992)

The 8th Circuit addressed the question in U.S. v. Holden, 963 F.2d 1114 (8th

Cir. 1992). There the Court concluded that access should have been given, but refused to require reversal because the District Court allowed a thorough questioning of the jurors. This brings us to the next subpoint.

10. When one juror admitted prejudice against the political activities of defense counsel, due to his involvement in an attempt to abolish the Arkansas property tax and sales taxes on used cars, the District Court should have asked other jurors about the same bias.

Not only were unknown jurors sneaked in on the day of trial, the District

Court absolutely refused to ask any questions about the initiatives that were being promoted by Defense counsel. (Trial Transcript at 92-96)

The request for that line of questioning was precipitated by William

Gathright, who volunteered that he did not like the fact that Oscar Stilley had promoted an initiative amendment to abolish the property tax in Arkansas, and an initiative to abolish the used car tax. (Trial Transcript at 90) He was excused for cause.

The District Court then stolidly refused to allow any questions that might have exposed the same bias in other jurors. The District Court’s questioning did

44 not elicit Mr. Gathright’s testimony, and Mr. Gathright was not dishonest or less than forthright. His volunteered admission was at the bench after the initial questions were over. The District Court’s questions simply did not call for an answer where the venireman held prejudice on the basis of these political activities of defense counsel.

11. The District Court refused to allow Dr. Roberts to identify which of the jurors relied upon a pay check from the government in order to enquire whether this connection was sufficient enough to strike these persons from the jury.

If Dr. Roberts was charged with robbing 1st National Bank, would this Court sanction the seating of substantial numbers of persons who hold stock in 1st

National, or who bank there, as jurors? Certainly not.

In Dr. Roberts case, people who get paid every month by the government, were allowed to fill the jury seats in this case. A proposed question to obtain this information was refused and rejected by the District Court. It is uncontrovertible that a juror in such a compromised position cannot be presumed impartial. Nor does the service of such jurors appear impartial to the community at large.

Dr. Roberts was denied the right to even ask this question. This in itself is reversible error. The Supreme Court has recognized, "[n]ot only is a biased

45 decisionmaker constitutionally unacceptable but `our system of law has always endeavored to prevent even the probability of unfairness.'" Withrow v. Larkin, 421

U.S. 35, 47, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975). See also Dyas v.

Lockhart, 705 F.2d 993 (8th Cir. 1983)

CONCLUSION

Based upon the foregoing, Appellant requests that this Court reverse and dismiss the conviction, return all monies or property taken, and discharge all sureties in this case.

Respectfully submitted,

Oscar Stilley

CERTIFICATE OF COMPLIANCE

I, Oscar Stilley, certify by my signature above that I have performed a word count and that the brief in chief herein does not exceed 14,000 words.

I, Oscar Stilley, certify by my signature above that this document was created on Wordperfect 8, and that I am providing a true, correct, complete, and

46 uncorrupted copy of the file created to the Eighth Circuit Court of Appeals, and to each of opposing counsel by diskette or by e-mail. I further certify that each diskette was scanned for viruses and that no viruses were present thereon, and that any files transmitted to counsel by e-mail were free of any viruses.

CERTIFICATE OF SERVICE

I, Oscar Stilley, by my signature above certify that I have this April 5, 2018 served the Appellees with a copy of this pleading by placing same in the US mail, postage prepaid to:

Michael Yurkanin, C/O P.K. Holmes,III, United States Attorney, PO Box 1524,

Fort Smith, AR 72902-1524; Robert Lindsay, Meghan Skelton, and Alan

Hechtopf, Tax Division, Department of Justice, PO Box 502, Washington, DC

20044. D:\Docs\2017-12-15\02d1d88aa5124d3572bd150a4e475773.doc