DnA 4-17: Irwin Schiff's Inquisition: Court Transcript
Federal Court Indirectly Proves
No Law Requires A Person To File/Pay
the Federal Income Tax
What you are about to read is excerpted from Irwin Schiff's book "The Federal Mafia". Please take careful note of how the Federal Magistrate Judge (court clerk) desperately tries to trick Schiff into giving the court jurisdiction in the case.
This article might be a little long, but please take some time to read it, it will shock you.
<<Beginning Excerpt>>
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Proof that no "liability"
for income taxes exists
anywhere in the internal
revenue code
While I stated in The Great Income Tax Hoax that no section of the Code made anyone liable for income taxes, I was asking my readers to take my word for it - or to check the Code out for themselves. But now, thanks to my latest criminal prosecution and to my two civil law suits, my readers won't have to do either. As a result of that litigation, the government has supplied me with all the information that anybody should need.
A U.S. Arraignment - Nazi Style
On April 5, 1985, while on a media tour to promote my recently released book, The Great Income Tax Hoax, three IRS agents pounced upon me as I was about to enter the studios of radio station KFBK, Sacramento, California, for a scheduled talk show appearance. They pinned me against the wall, handcuffed and arrested me. They all carried concealed pistols, which they were not authorized to carry (per section 7608) except in connection with the "enforcement of Subtitle E and other laws pertaining to liquor, tobacco, and firearms." But what does violating one more law mean to the IRS?
I was subsequently released on bond, and on April 17, I appeared for arraignment before Magistrate Owen Eagan in Connecticut Federal District Court in Hartford. The government had charged me with three counts of tax evasion for the years 1980, 1981 and 1982 and one count of failing to file a corporate tax return for 1980. However, on April 8th, approximately 10 days prior to my arraignment, I submitted a written motion to the court asking it to dismiss the indictment due to the court's lack of subject matter jurisdiction. I supported this motion with two memorandums of law. One memorandum cited sufficient case law to remind the court of two things it already knew, (1) that whenever a federal court's jurisdiction is challenged the party invoking its jurisdiction (in this case the federal government) must prove it by clear and convincing evidence, and (2) that a federal court's jurisdiction can never be assumed by the court. The two short excepts from two of the cases in my Memorandum of Law illustrate this:
Jurisdiction cannot be assumed by a District Court nor conferred by agreement of the parties, but it is incumbent upon plaintiff to allege in clear terms, the necessary facts showing jurisdiction which must be proved by convincing evidence.-Harris v. American Legion, 162 F. Supp. 700
The authority which the statute vests in the court to enforce the limitations of its jurisdiction precludes the idea that jurisdiction may be maintained by mere averment or that the party asserting jurisdiction may be relieved of his burden by any formal procedure. If his allegation of jurisdictional facts ARE CHALLENGED BY HIS ADVERSARY in any appropriate manner, HE MUST SUPPORT THEM BY COMPETENT PROOF. And where they are not so challenged, the court may still insist that the jurisdictional fats be established or the case dismissed, and for that purpose the court may demand that the party alleging jurisdiction justify his allegations by a preponderance of the evidence.
[emphasis added]-The Supreme Court
McNutt v. General Motors Acceptance, 56 S. Ct. 780
There is ample case law to support this principle that once jurisdiction is challenged the court hs no authority to do anything but take action on that motion. As the Supreme Court held in The Statute of Rhode Island v. The State of Massachusetts, 37 U.S. 709 once the question of jurisdiction is raised "it must be CONSIDERED AND DECIDED, before any court can move one step further." With this in mind let us see how a Connecticut District Court delt with this issue in my case. My motion claimed that the court lacked subject matter jurisdiction to try me for alleged income tax crimes because:
- The indictment failed to identify the statute that required the filing of a corporate income tax return, and thus failed "to state a charge cognizable in the courts of the United States."
- "No section of the Internal Revenue Code (erroneously referred to in my indictment as 26 USC 7201 and 7203) makes individuals liable for the payment of income taxes" and so I was not required to file a return or pay the tax purely as a matter of law.
- "Section 7402 specifically grants civil jurisdiction only." I pointed out to the court that it was never given jurisdiction by Congress to conduct a criminal tax trial, because "Title 26" only conferred civil, not criminal jurisdiction on federal courts. What could be plainer than that!
- The court had no jurisdiction to prosecute me (either for evasion or for not filing) for a tax which was not imposed pursuant to any of the taxing clauses in the Constitution. That since the income tax was imposed neither as "a uniform excise tax in accordance with Article I, Sec 8, Clause 1 nor as an apportioned direct tax pursuant to Article 1, Sect 2, Clause 3 and Article 1, Sect 9, Clause 4," a criminal prosecution pursuant to such a tax would be manifestly unconstitutional.
I supplied the court with an eighteen page Memorandum of Law just to support that last contention.
Government Fails To Respond
In total violation of the principle explained in the three cases cited above, both the prosecution and the courts paid absolutely no attention to my jurisdictional claim - as shown by the following excerpts from the arraignment tape that was supplied to me by the court.
Magistrate Eagan: It is my understanding this morning that we were taking the criminal docket. The first matter will be criminal number N-85-20. This is a case that is assigned to the Honorable Peter C. Dorsey for trial. It is the matter of the United States of America vs. Irwin A. Schiff. Is that correct?
M. Hartmere, Asst. U.S. Attorney: That's correct, your Honor.
Eagan: And this matter is here on indictment?
Hartmere: yes, it is your Honor.
Eagan: And has a copy of this indictment been given to Mr. Schiff?
Hartmere: Yes, your Honor I believe he has been provided with a copy.
Eagan: All right, fine...
Schiff: Your Honor, I submitted last Monday to this court and to the U.S. Attorney, a Motion to Dismiss the indictment on four grounds of lack of jurisdiction. So far the government hasn't responded to that motion. Therefore, I move for a summary judgement on the grounds that since I filed a motion that this court has no jurisdiction, because the income tax falls into none of the taxing clauses of the Constitution, and because I have no liability for the tax; and since the government hasn't responded to the contrary, I move that the procedure here be dismissed. However, if the government wants more time to respond, I'll agree to giving it a continuance.
Eagan: All right, Mr. Schiff, if you'll excuse me, we'll be seated for a minute. I'll go through the whole procedure with you and I'll explain it to you. [He totally ignores the jurisdictional issue I raised in my written motion, and which I just orally re-urged.]
Schiff: Well before we can proceed, your Honor, I think what we have to ESTABLISH is whether or not you have ANY JURISDICTION TO PROCEED. Now, it's very simple. I have in front of me Section 7402 and it very clearly says, "For general jurisdiction of the district courts of the United States in CIVIL actions involving internal revenue, see section 1340 or Title 28 of the United States Code." Now if I can show the court where it has CIVIL jurisdiction, I think it's appropriate for the government to show the court where it has criminal jurisdiction...
Eagan: All right, Mr. Schiff, if you'll sit down for just a second please. Mr. Schiff this is a preliminary hearing, this is not a trial of the matter nor am I here to hear motions addressed to jurisdiction. I will give you sufficient time to address your motion to the trial judge and he will be the one...Mr. Schiff, please...
[Eagan again totally ignores my claim that the court lacks jurisdiction to continue, even though the government has yet to utter a single word in its own behalf. If Eagan had no authority to address this issue, then he should have re-scheduled it before someone who did. But my written motion was submitted to the court days before my "arraignment," so the Honorable Peter C. Dorsey obviously knew that it had to be held before someone who could deal with the subject. The reason that the court CHOSE THIS METHOD TO AVOID DEALING WITH THIS ISSUE, will soon become apparent. But let's continue with my "arraignment."]
Schiff: Your Honor, are you going to ask me to plead?
Eagan: Yes, I am.
Schiff: You'll be asking me to plead to a legal fiction...to plead to something that's not a crime...Suppose Michael Hartmere indicted me for eating a banana, would you expect me to plead guilty or not guilty to that? And if I pleaded not guilty, would I not be suggesting that I believed that eating a banana was a crime? Before we continue...
Eagan: No, before we continue you will sit down and you will listen to my explanation of what we are doing. Please be seated, Mr. Schiff.
[The court and the prosecutor (actually, in this case, one in the same) were conspiring against me to plead to a legal fiction so that the United States could illegally prosecute me. For example, suppose that Michael Hartmere, the U.s. prosecutor who fraudulently engineered my indictment, was similarly able to pull the wool over the grand jury's eyes and get it to indict me for having eaten a banana. Suppose further, that I had never eaten a banana in my life. Would that mean that because of that fact at any subsequent arraignment, I should simply plead not guilty, or that I could be "required" to EVEN ENTER A PLEA for that "crime"? Why should I needlessly have to defend myself (which takes both time and money) from charges that I was guilty of doing something that I didn't do, but which was not a crime anyway? By pleading "not guilty," one also subjects himself to the authority of (and in this case a hostile one) a federal judge who, once he has you in his clutches, (ie. become subject to his "jurisdiction") can exercise arbitrary and awesome power over you. He can establish unrealistic bail requirements, decide that you should be confined right through your trial and keep you in jail - WITHOUT A TRIAL - by holding you in continuous contempt of court. And once you are under the court's jurisdiction (which we can only occur after you submit to its jurisdiction by refusing to challenge it [and possibly prevailing] by simply entering a standard plea) you can indeed be found guilty of something you never did and which is not even a crime. This can occur because once the court assumes jurisdiction, it is in a position to make false rulings on matters of law (in which defendants are also denied oral argument) and falsely charge the jury on the law itself - which occurs all the time in tax cases.
In addition, the prosecutor can totally fabricate its prosecution by using perjurous testimony - a perfectly routine procedure in all "tax protestor" cases. To put it in the context of my banana example (though a better illustration might be, being accused of speaking ill of the President), once you plead not guilty to eating a banana, the government is now in a position to get witnesses to falsely testify that you did, while the court is now in a position to falsely instruct the jury that eating a banana is a crime. Since a jury is made up of individuals who generally know ABSOLUTELY NOTHING ABOUT TAX LAW, they can be made to believe anything the "judge" decides to tell them. So, in case you thought my banana illustration was a little far fetched, this is PRECISELY what happens in all "tax protestor" cases. Such people are all tricked at their arraignments, and then fraudulently prosecuted for doing something that is no more illegal than eating a banana. But let's leave the subject of bananas and get back to my "arraignment."]
Eagan: Now, before we continue you will sit down and you will listen to my explanation of what we are doing. Please be seated Mr. Schiff.
Schiff: Well, I think that jurisdiction has to be established your Honor...
Eagan: All right...
Schiff: And I think the record ought to show...
Eagan: The record is going to show everything that should be shown. Mr. Schiff, my name is Owen Eagan. I am the United States magistrate. I am here for the preliminary purposes of taking a plea in this case.
Schiff: May I just ask is this an adversary...
Eagan: You may shut up for just a second and let me finish. I'm here to take a plea to this particular case. The only plea that I can and will accept is a plea of not guilty.
[In the above exchange I sought to get Eagan to admit that an arraignment is an adversary proceeding between me and the government, with the court merely "judging" between us, based upon the legal arguments we make. I had already made (and legally supported) an argument that the court had no jurisdiction - which ALSO INCLUDED EAGAN'S AUTHORITY TO ARRAIGN ME! Obviously, that authority had to be established before Eagan could utter ONE ARRAIGNMENT WORD! The court was thus duty bound to hear contrary arguments from my adversary (the government) and to render its decision accordingly. But it is clear from the arraignment tape (as my trial itself would prove) that my adversary WAS ALSO THE COURT! Note Eagan's comment that he was only there to take "a plea of not guilty." But the court was on notice that I intended to argue jurisdiction. So why wasn't it prepared to hear it? But you already know the answer to that. So the court concocted a ruse to avoid addressing the issue as the law required it to do.]
Continuing with the "arraignment"...
Schiff: I'm perfectly willing to plead guilty. I will plead guilty. Can I plead guilty?
Eagan: No, you may not.
Schiff: Why can't I?
Eagan: Because I have no authority to take a guilty plea.
Schiff: Well then let's get a judge in here who can accept a guilty plea.
Eagan: Mr. Schiff, please sit down at this time...please.
Schiff: I'M PERFECTLY WILLING TO PLEAD GUILTY TO SAVE THE UNITED STATES AND MYSELF THE EXPENSE OF THE TRIAL. I ADMIT, YOUR HONOR, THAT I HAVEN'T FILED AND I HAVEN'T PAID, AND IF I HAVE A TAX LIABILITY AND IF MR HARTMERE WILL SHOW THIS COURT WHERE I CAN HAVE A TAX LIABILITY (AS A MATTER OF LAW) I'M PREPARED TO PLEAD GUILTY.
Eagan: All right, now I've given you your opportunity to talk so you please sit down and listen...
Schiff: But I'm prepared to plead guilty. [Can you believe that this is actually happening in an American court?]
Eagan: Please sit down.
[Suppose I had been charged with murder, rape, bank robbery, counterfeiting, arson, mail fraud or any other crime you can think of and I asked the court, "Look, just show me the law which makes what I'm charged with a crime, and I'll plead guilty." Don't you think that under those circumstances any LEGITIMATE court would have produced the law? In my case, "the law" was the Code section that made me "liable" for the tax. Yet neither the government nor the court COULD or would produce the law!!!]
Eagan (continuing): It's my obligation today to take a plea to an indictment that was handed down by a grand jury on April 3 of this year in New Haven. The only authority I have is the authority to accept a plea of not guilty...and that is the only authority I have. My other OBLIGATIONS ARE TO MAKE SURE that you get a copy of the charging documents; THAT YOU UNDERSTAND WHAT THE CHARGE IS; and you understand what the maximum penalty might be. Now the way that I accomplish this is to have the U.S. Attorney explain to you and to me what the charges are and what the maximum possible penalty is. After that, I must advise you of what your rights are. [But apparently not of my right to be tried only by a court that has jurisdiction]
[Additional explanation followed in which Eagan explained that he would cover such things as: the Speedy Trial Act, the filing of pre-trial motions, my competency to stand trial, whether I had an attorney, and whether he had any conflict of interest. Following that, I again asked of the court...]
Schiff: Is this an adversary or inquisitory proceeding?
Eagen: Well, the procedure is a preliminary procedure in a criminal process. All criminal process is adversary in nature.
Schiff: Well, who is my adversary in this courtroom, your Honor?
Eagan: Your adversary is the United States government.
Schiff: Is that Mr. Hartmere?
Eagan: Hartmere is only an agent of the government. He is not your adversary.
Schiff: But he represents my adversary, is that correct?
Eagan: He represents the government.
Schiff: Therefore, I assume that if I raise an issue, before you can judge, my adversary would have to respond?
Eagan: No, that's not so. Dispositive motions - and that's what you are talking about, have a time and a place. [I hadn't the vaguest idea what he meant by a "dispositive motion" But I knew that Eagan wasn't telling the truth about the issue of jurisdiction which I knew was validly before the court.] Once the plea is entered, dispositive motions may be filed and they will be addressed to the trial judge.
Schiff: If you are telling me that you can only take a not guilty plea, I could have mailed it on a postcard.
Eagan: No, the rules require that a personal appearance... Rule 10...
Schiff: Why?
Eagan: That's the way Congress deems it legal.
Schiff: But this is supposed to be my hearing, isn't that right? It's not a court martial?
Eagan: This is a preliminary hearing for the purpose of taking a not guilty plea.
Schiff: But it's also a hearing to see if you have the jurisdiction to take a plea.
Eagan: There's no question in my mind whether I have jurisdiction or not. I have jurisdiction.
[So here the court, without any shame at all, openly violates a fundamental principle of federal law - it ASSUMES jurisdiction and without the plaintiff being asked to offer any comment at all (let alone assume its burden of proof) on the matter!]
Schiff: Where do you have it from?
Eagan: I don't think I have to sit here and explain it to you Mr. Schiff. Mr. Schiff, please sit down and we're going to go through the normal procedure...
Schiff: Your Honor, the courts have ruled that when the issue of jurisdiction is raised...the jurisdiction facts must be established or the case dismissed..."Jurisdiction can not be assumed but must be clearly shown" Brooks v. Yalkie 200 F2d 663. Sir, you cannot assume jurisdiction. When I raise the issue of jurisdiction, the government (my adversary) must prove you have it. [So far the government, my adversary, hasn't uttered one word in opposition to my four claims, yet Eagan decided the matter in its favor! Talk about having a friend in court!]
Eagan: For the preliminary purpose of this hearing I am denying your motion, if that's what you want. I have jurisdiction. I will proceed...
Schiff: You haven't proven it. On what basis do you have it?
Eagan: I don't have to prove anything to you, Mr. Schiff.
Schiff: Your Honor, if I can prove that you have CIVIL jurisdiction pursuant to section 7402, why don't you simply ask Mr. Hartmere to tell you where you have CRIMINAL jurisdiction? ISN'T THAT SIMPLE ENOUGH?
Eagan: I think I explained this to you before. The dispositive motions must go to the trial judge. The trial judge is the only one who can rule on...
Schiff: Well, then let's get a judge in here.
Eagan: Mr. Schiff, you are not running this court. We will run the court in the normal way that it has always been run, under the laws and under the Constitution of this country. [It's a good thing that Eagan pointed this out, otherwise no one would have guessed it!]
Schiff: Your Honor, I wasn't...
Eagan: Mr. Schiff, SIT DOWN!
[This should give you a rough idea of how justice "works" in federal courts, as opposed to how it supposedly works in theory. It is clear that the court was willing to proceed even though it obviously knew it had no jurisdiction (otherwise the court and/or the prosecutor would have offered some proof) to do so.]
My willingness to immediately plead guilty came up AGAIN as follows...
Schiff: I am willing to plead guilty.
Eagan: I don't want a guilty plea.
Schiff: Why not?
Eagan: Because I cannot accept a guilty plea.
[Therefore, I should have insisted that, that was the plea I wanted to make. This would have forced a rescheduling of my arraignment before the judge. Then I could have undergone a change of heart and forced oral argument on each of the jurisdictional issues I raised. This is what Judge Dorsey wanted to avoid - oral argument. In that situation the government would have to support its baseless jurisdictional claims in open debate, where its reasoning could be challenged and where both its answers and the court's would be recorded. Judge Dorsey, for obvious reasons, wanted to make any jurisdictional claims and statements from within the safety of his own WRITTEN decision. By employing that technique, both his and the government's answers to my jurisdictional question wouldn't have to be DEFENDED IN OPEN COURT. By contract the court, by limiting its remarks and answers to its own written opinion, could with relative safety and impunity, base its decisions on arguments that were patently false, incomplete and invalidly supported.]
Schiff: Well then let's get a judge in here who can accept a guilty plea. Why should I be put to the expense of a trial? I can't afford a trial.
Eagan: Do you want to plead guilty?
Schiff: I WILL PLEAD GUILTY, IF THE GOVERNMENT WILL ONLY SHOW ME WHERE THE CODE MAKES ME LIABLE FOR THE TAX.
Eagan: NO. You don't want to plead guilty. What you want to do is argue. [Can you believe this?]
Schiff: I don't want to argue. I'm perfectly willing to plead guilty. [Here, I further reminded the court, that none of the Code sections I was charged with violating even mention income taxes, and that the government had also refused to address that issue too.] Does Mr. Hartmere suggest that I am evading an alcohol tax?
Eagan: Mr. Schiff, you are just back at the same thing all over again.
Schiff: Well why don't you ask him where in the (Code I am required to file an income tax return and pay an income tax.)
Eagan: No, I'm not going to ask him anything about that.
And further on...
Schiff: You want me to give jurisdiction to the court by entering a not guilty plea? Not guilty to what? Where's the crime?
Eagan: Mr. Schiff, you're arguing the case.
Schiff: I'm not arguing.
Eagan: The proper place to argue that defense, is to Judge Dorsey and it's through a Motion to Dismiss (which I had already filed but which the court was now ignoring!) Let me get on with this. I will give you the dates where you can argue it and to whom you can argue it.
[First of all, I wasn't "arguing" the case. I wasn't arguing whether I had filed tax returns or not, or whether I had paid the taxes or not (as a matter of fact I had already admitted to not doing either) or whether or not I "concealed" any income that would have been "arguing the case." I was only arguing the issue of jurisdiction, not the case." And an ARRAIGNMENT IS JUST THE PLACE TO MAKE THAT ARGUMENT. Eagan's claim that I would have an opportunity to "argue it" later was another sham. Once the court got by the "arraignment" with its "magistrate" ploy, it refused to grant me oral argument on the issue as Eagan falsely claimed it would do. The reasons for this have already been explained.]
Schiff: This is the proper place to argue jurisdiction.
Eagan: This particular proceeding is not the proper place. [Eagan's statement was a blatant lie as my next statement and his response prove.]
Schiff: Jurisdiction can be raised during any part of the judicial process.
Eagan: You raised it. I've denied your Motion to Dismiss this case.
[A moment before he instructed me to submit my Motion to Judge Dorsey. Now he denies the Motion he just told me to submit. And if Eagan only had the authority to accept a not guilty plea, (as he repeatedly claimed) then where did he get the authority to deny my Motion to Dismiss For Lack of Subject Matter Jurisdiction?]
Schiff: Without hearing from my adversary?
Eagan: Without hearing from your adversary.
Schiff: Then this is not an adversary proceeding?
Eagan: I don't need to hear from your adversary to know that I have jurisdiction to take your not guilty plea and send you on to Judge Dorsey for the trial to take place.
Schiff: Is this a star chamber proceeding or is this an American court where I am supposed to have a hearing?
Eagan: It is a courtroom where you will have a hearing. It is not a political podium for you to give addresses to the court.
[Eagan's statements and admissions prove him to be wrong on all counts. This was no "courtroom." I was not to be given a "hearing" And his comment that I was turning his "courtroom" into a "political podium" was Freudian: reflective of his obvious understanding that my "trial" was really political in nature.]
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<<End of Excerpt>>
Well there you have it, another example of "star chamber" justice -federal style (or Nazi, have your pick).
Remember that "Eagen" the Magistrate (court clerk) would not take a plea of "guilty"...why? Because they could not come up with a law that makes anyone liable for the tax. This is just another example of how the "Cult of the Black Robe" (as they are commonly referred to today) covers the IRS's proverbial ass.
As stated before, "The Federal Mafia" and all other Schiff books will be available at "below retail" price through DnA Systems shortly. We will also make available, the court recording of the above exchange for those who are not easily convinced.
[EOF]
