Petition — Whitesel v. United States

Supreme Court brief1977

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IN THE SUPREME COURT OF THE

UNITED STATES OF AMERICA

October Term

Case noi 5h" 1378

ROGER L. WHITESEL, Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

THE UNITEDSTATES COURT OF AFPEALS FOR

THE SIXTH CIRCUIT

Of counsel: Pro se:

Robert Muncaster Roger L, Whitesel

Esther Muncaster

2709 Fleming Road

Deatsville, Alabama 30022 Middletown, Ohio 45042

BOE w hd CLO AHS

TABLE OF CONTENTS

PETITION FOR A WRIT OF CERTIORARI ----- l

Il,

Vu,

OFFICIAL AND UNOFFICIAL

REPORTS OF OPINIONS -------------- 2

JURISDICTIONAL STATEMENT ------- 2

JUDGMENT TO BE REVIEWED ------- 3

QUESTIONS PRESENT FOR REVIEW -- 3

APPLICABLE LAW, etc, ------------- 4

(see Appendix ''F'')

STATEMENT OF THE CASE ---------- 5

ARGU MENT:

A. ASSISTANCE OF COUNSEL ------- 13

B, ELECTION OF COUNTS ---------- 25

C, ILLEGAL JOINDER -------------- 31

D, DUPLICITOUS COUNTS I & III ---- 46

E, TAX LIABILITY/COUNTS I & IIl-- 56

F, TAX LIABILITY/COUNT V ------- 58

G. FAIR TRIAL & TAX LIABILITY --- 60

H, WILLFULNESS/COUNT V, ------- 64

—

WILLFULNESS/COUNTS I & III, --- 69

TABLE OF CONTENTS - continued IN THE SUPREME COURT OF THE

UNITED STATES OF AMERICA

VIL, CONCLUSION eWcnnnnnnnnnnnnnnncccns 75

Case No,

IX, PRAYER cecwwm concen ccc wccecccces - 76 |

Certificate of Service <<<<<<<ncnncnnccccccccs 76

: | ROGER L, WHITESEL,

APPENDIX: Petitioner,

Judgment of the 6th Circuit ----------- — v.

Order , denying Rehearing ---...-..... "Br

UNITED STATES OF AMERICA,

Affidavit of Gordon C. Peterson ------- no"

Respondent.

American Colonial Charters ---------- "p"

Intelligence Memorandum -IRS -------- —" PETITION FOR A WRIT OF CERTIORARI

Applicable Law, etc, <<<<--<<-------- ope THE UNITEDSTATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

To: The Chief Justice, and, the Associate

\ Justices of the Supreme Court of the United

States of America.

Comes, now, Roger L, Whitesel, peti-

tioner pro se, who petitions this Court to issuea

writ of Certiorari to the U.S, Court of Appeals

for the Sixth Circuit,

As grounds, the Petitioner Whitesell shows

the Court as follows:

2. 3.

L on the same matter; and has decided an important

OFFICIAL AND UNOFFICIAL REPORTS question of Federal law which has not been, but

OF OPINIONS should be, settled by this Court; and has decided

a Federal question in a way in conflict with appli-

The unofficial report of the Opinion of the cable decisions of this Court; and has so far de-

Court of Appeals for the Sixth Circuit in U.S. v., parted from the accepted and usual course of judi-

Whitesel, decided and filed October 22, 1976, cial proceedings, or so far sanctioned such a de-

Case No, 75-1648, may be found in 543 F2d 1176. | parture by the District Court.

The decision of the Court of Appeals is

attached hereto as Appendix "'A", | III.

JUDGMENT TO BE REVIEWED

To Petitioner's knowledge there has been

no unofficial report made of the denial of Peti- The Judgment to be reviewed was decided

tioner's ''Motion for a Rehearing" filed on Febru- and filed on October 22, 1976, wherein the Sixth

ary 7, 1977. Circuit Court of Appeals vacated the sentence on

The Order of the Court of Appeals is Counts Il. and IV. and affirmed the judgment of

attached hereto as Appendix ''B", conviction on Counts I., IIIl., and V. See attached

Appendix "A", .

Il,

JURISDICTIONAL STATE MENT The Order denying Petitioner's Motion for

ReHearing is dated February 7.1977. See attached

Jurisdiction is obtained under Amendment Appendix ''B"'

I,, U.S, Constitution - the right to petition the

Government for a redress of grievances, and,

under Amendment IX, - the right to have the issu-

ance of a writ of Certiorari under the Common

Law.

IV.

QUESTIONS PRESENTED FOR REVIEW

A. ASSISTANCE OF COUNSEL:

Whether the Petitioner was fatally preju-

diced by his being denied assistance of

counsel,

—-

Jurisdiction is also obtained under Statu-

tory Law as set out in 28 U,S,C, 1651 and 1254,

B. ELECTION OF COUNTS:

Whether the Government was bound by Law

to make an election whetherto prosecute on

Counts I. and III. or on Counts II. and IV.

prior to Trial.

C. ILLEGAL JOINDER:

Whether the Petitioner was fataily and er-

roneously prejudiced by the joinder of

Counts 1, Il., Ill.,IV. and V.

Jurisdiction if further obtained under Sta-

tutory Law as set out in 28 U.S.C. allowing

the Supreme Court to make their own Rules.

Rule 19 is invoked requiring the Court's

power of supervision over the Courts of Appeals

when such Court has rendered a decision in con-

flict with the decision of another court of appeals

D. DUPLICITOUS COUNTS IL. and III:

Whether Counts I. and III. (failure to make

a tax return) were duplicitous.

E. TAX LIABILITY / COUNTS I, and III.

Whether ''tax liability'"’ was material to the

offense charged in Counts I, and III.

F. TAX LIABILITY / COUNT V,:

Whether "tax liability'' was material to the

offense charged in Count V. ("false''W-4E).

G. FAIR TRIAL & TAX LIABILITY:

Whether a determination of Petitioner's

"tax liability'' was necessary - if any

there was - to assure a fair trial.

H WILLFULNESS / COUNT V.,:

Whether the Instructions to the Jury were

in conformance with the Garner Decision

and the Bishop Decision.

I. WILLFULNESS / COUNTS I, & IIL:

Whether the Instructions to the Jury were

in conformance with the Garner Decision

and the Bishop Decision.

APPLICABLE LAW, ETC,

See Appendix '" F "

STATEMENT OF THE CASE

On October 7, 1974, a five-Count INDICT-

MENT was filed against the Petitioner in the U.S.

District Court for the Southern District of Ohio,

Western Division. Case No. 75-1638, U.S. v.

Roger L. Whitesel.

Count I. and Count Il. of the INDICTMENT

charged the Petitioner respectively with:

- - « willfully and knowingly fail-

(ing) to make (an) income tax return (for

the Year 1972)

and, for the same Year 1972 with:

- « « willfully and knowingly fail-

(ing) to supply. . . information ona

Form 1040, other than his name, address,

social security number, and the statement,

"under protest, I plead the Fourth and

Fifth Amendments to the United States

Constitution".

Counts III, and IV. of the INDICTMENT

charged the Petitioner respectively with:

. « » willfully and knowingly fail-

(ing) to make (an) income tax return (for

the Year 1973)

and, for the same Year, with:

. « willfully and knowingly fail-

(ing) to supply. . . information ona

Form 1040, other than his name, address,

social security number, occupation, num-

ber of exemptions, signature, and the

statement, "Object, See Attachments".

Counts I., Il, Ul. and I1V. are offenses

under 26 U.S.C 7203.

Count V. of the INDICTMENT charged

that the Petitioner had, on or about August, 1972:

. « « willfully suppl(ied) a false

and fraudulent statement by submitting an

EXEMPTION FROM WITHHOLDING CERTIFICATE

Form W-4E to Valley Sheet Metal Works, Inc.,on

which he claimed that he incurred no liability for

Federal income tax for the year 1971 and that he

anticipated he would incur no liability for Federal

income tax for the year 1972, whereas, ... he

inccured a Federal income tax liability of

$3316.21 for the year 1971 and that he wouid in-

cur a similar Federal income tax liability for the

year 1972.

Count V. is an offense under 26 U.S.C.

7205.

. Arraignment was held on October 15, 1974.

Petitioner appeared with his Counsel of his

1/ The Government had originally proceeded

against the Petitioner by INFORMATION but only

on Count V.- false and fraudulent W-4E Form.

However, on motion of the Petitioner, the Court

dismissed the Case since the INFORMATION

failed to be supported by Oath in accordance with

the 4th Amendment. See U.S. v. Whitesel, Case

No. CR 174-25, D.C. ,So. Dist. Ohio.

choice, whom the Court forbid to speak for the

Petitioner. The court entered a plea of ''Not

guilty'' since the Petitioner declined to plead.

Various pre-Trial motions were filed by

the Petitioner. Among these were:

1. Motion to Quash Indictment by the

Grand Jury , in which the Petitioner, in part,

moved the Court to sever the Counts stating,

"That to include Count(s) IIl., l.,1IV. and V. with

Count I. constitutes a misjoinder of actions, and

as such would be extremely oppressive in nature".

(R-13) £/ and (PT-3:3 and PT-26:11) 3/

On October 24, 1974 District Judge Hogan

denied this Motion. (R-14)

2. Motion to Dismiss Criminal Charges

on Constitutional Grounds the substance of which

required a Hearing by the Court on Petitioner's

Constitutionally guaranteed rights including but

not limited to the 5th Amendment protection which

he had invoked on his 1972 and 1973 Tax Returns -

the Returns for which he stood charged for not

making in Counts I. and III, (R-16)

On October 30, 1974, the Court denied

this Motion. (R-17)

2/ The letter "R" of (R-13) refers to the Record

of the Case. The numerals refer to the pagination

of the Record.

3/ The letters ''PT"' refer to the Pre-Trial Hear-

ing. The numerals preceding the colon refer to

the page number, and, the following numerals

refer to the line number.

3. Motion for Court to Recognize Consti-

tutional Right to Enjoy Assistance of Counsel,

Licensed or un-Licensed, (R-20) and Memoran-

dum, (R-22).

On November 18, 1974, the Court denied

this Motion. (R-24)

On Tuesday, February 4, 1975, a Pre-

Trial Hearing was had on "preliminary matters"

During this Hearing, the Petitioner moved

the Court to dismiss the charges on the grounds

that he had relied in good faith upon his rights as

guranteed by the U.S Constitution, and upon pre-

vious decisions of this Supreme Court as well as

other decisions of Federal Courts and on state-

ments made by Federal Judges and other Govern-

ment Officials. (PT-18:4through PT-21:11)

This motion was denied by the Court on the

grounds that his good faith challenge would go to

the question of "willfulness". (PT-21:12, 19)

During this same Hearing, the Trial Judge

informed the Petitioner that Counts II. andIV. -

failure tosupply information upon an IRS Form

1040 would be alternate charges to Counts I. and

Ill. - failure to make a tax return.

The Petitioner renewed his motion to

sever the Counts stating: ". . . if willfulness is

a jury question, shouldn't these Charges be sepa-

rated?" (PT-26:11)

However, the Trial Judge refused by stat-

ing: ''They will be separated. This Jury will be

told to consider each of these separately . .”

(PT-26: 13)

On Wednesday, February 5, 1975, the

Jury Trial commenced and continued all day. The

Judge then continued the Trial on Friday, Febru-

ary 7th, at which time the Prosecution and the

Defense rested. The Jury was charged.

On this day, February 7th, the Petitioner

filed a Motion to Dismiss (R-45). Later onthe

Same day in Open Court, the Petitioner renewed

this Motion and was overruled by the Court.

The Jury started its deliberation after re-

turning from the Weekend, on Monday, February

10th at 9:30 a.m. The Jury continued its delibera-

tion all day, returning the next day at 9: 30 a. m.

At 10:42 a.m. on this Tuesday, the Jury returned

a verdict of "Guilty" on all 5 Counts of the INDICT-

MENT.

On Feb. 20th Whitesel filed some motions;

one, being a Motion to Arrest Judgment. (R-51)

The Docket Sheet #/ shows that this

Motion was denied by the Court. (R-52)

Sentencing was held on Friday, February

28, 1975. The Court made the following sentence:

Count V. - 1 year and a fine of $500. 00;

Count I. - 6 months consecutive to Count

V. and $500. 00 fine;

Count II. - 6 months consecutive to Count

V. and concurrent with Count I. and $500. 00 fine;

Count III. - 6 months consecutive to Counts

I. and V. and $500. 00 fine in addition to Counts I

and V. ;

Count IV. -6 months concurrent with Count

III. and consecutive to Counts I. and V. and

$500. 00 fine, remitted.

On March 7, 1975, the Petitioner timely

filed his Notice of Appeal.

The Case was docketed in the Sixth Circuit

Court of Appeals as case no, 75-1648. The BRIEF

OF APPELLANT was due on July 19, 1975.

However, twelve days before the BRIEF

was due, the Petitioner submitted various motions

to the Court - all seeking relief necessary to the

filing of his BRIEF. One of these motions was the

the Motion to Withdraw the Record and Exhibits,

which the Court denied, As a consequence, the

BRIEF OF APPELLANT was filed without a com-

plete record of the case on August 24, 1975.

Other motions were filed on July 14, 1975.,,

which were also denied by the Court.

On August 5, 1975, the U.S. Attorney filed

a Motion to Dismiss on the grounds that the Peti-

tioner had failedtofile a timely brief.

In response, On August 11, 1975, the Peti-

tioner filed his Answer to Motion to Dismiss &

Motion and a Motion to Strike.

On the latter Motion, the Petitioner prayed

that the Sixth Circuit would strike the Motion to

Dismiss from the Record and the name of the U. §.

Attorney as counsel for the United States on the

grounds that the Code of Federal Regulations re-

quired all Tax appeals to be handled by the Tax

Division, Department of Justice, Washington,D.C.

By the time of Petitioner's filing the

BRIEF OF APPELLANT none of these motions

had been disposed of by the Court.

The Court continues to ignore Petitioner's

Pleadings.

On October 8, 1975, the U.S. Attorney,

contrary to law, fileda BRIEF OF THE UNITED

STATES OF AMERICA, DEFENDANT-APPEL-

LEE (sic)

On January 21, 1976, the Petitioner time-

ly filed his REPLY BRIEF OF APPELLANT, after

being granted an extension of time.

In February, 1976, an oral Hearing was

had before the Sixth Circuit Court of Appeals at

which Petitioner appeared pro se.

Later on in the Year, on October 22, 1976,

the Sixth Circuit filed its Opinionin which it vacated

the convictions on Counts Il. and IV, ''on the

grounds of merger" and affirmed the convictions

on Counts I., Il., and V. See Appendix ''A"'

On December 2, 1976, Petitioner timely

filed his Motion for Rehearing with accompany-~

ing Arguments.

Then, on February 7, 1977, this Motion

was denied by the Court of Appeals, however,

erroneously stating in its Order that:

Noting in said motion no argument

which had not been previously considered

by the panel which decided the appeal,

Said motion is hereby denied.

See Appendix,''B"'

On February 9, 1977, the Petitioner filed

his Motion to S

Time in the Court of Appeals. In this Motion the

Petitioner informed the Sixth Circuit that he in-

tended to apply to this Court with a Petition for a

writ of certiorari,

Following, the Petitioner moved this Court

for an extension of time in which to file his Peti-

tion, which was granted by Justice Stewart to

April 8, 1977. (No, A-705)

A. 1/

ASSISTANCE OF COUNSEL |

Whether the Petitioner was fatally

prejudiced by his being denied

assistance of counsel.

Petitioner Whitesel was denied by the

Trial Judge assistance of counsel in violation

of his Sixth Amendment right 1/ during Arraign-

ment and during the entire Proceedings. (See

Pre-Trial Motions (R-22) and the Court's denial

(R-24),

This District Judge permitted an Account-

ant to "'advise'' the Petitioner by permitting him

to sit at the Counsel Table with the Petitioner.

(PT-6:23). However, the Accountant was not

allowed to assist by speaking or objecting,or to

participate in any way in the Trial Proceedings.

On Appeal, the Court of Appeals for the

Sixth Circuit ruled that: (Appendix''A"', at 8)

. We find no abuse of Appel-

lant's Sixth Amendment rights.

Earlier, the Sixth Circuit had opined:(at 3)

. » It is Appellant's contention,

however, that the Sixth Amendment right

1/ The 6th Amendment to the U.S, Constitution

states:

"jn all criminal prosecutions, the accused

shall enjoy the right. . . to have the assistance

of counsel for his defense,

to "counsel" did not in 1789, and does not

now, pertain to members of the Bar, but

should be construed as allowing for the

advice and participation of a friend of the

accused who is not a lawyer.

The Court of Appeals erroneously claimed

that: (at 3, Appendix ''A"')

This argument has decisively been

rejected by three of the Courts of Appeals

which have considered the issue.

The three Courts of Appeals to which the

Opinion refers are the Fifth, District of Colum-

bia and the Seventh Circuit. All the Cases cited

are distinguished from the Petitioner's. The

Sixth Circuit misapprehended the law.

In the Petitioner's Argument contained

in his Motion for Rehearing to the Court of Appeals

the Petitioner brought to the attention of the Court

that they had misapprehended the law and facts on

the issue of Counsel - that the Cases cited by the

Sixth Circuit were not in point or totally void of

"authority in support of its holding". 3/

In answer to Petitioner's Motion for Re-

hearing, the Sixth Circuit failed and refused to

consider the new and original arguments present-

2/ See The First, Sixth and Ninth Amendment

Right to Assistance of Counsel,p, 1, Argument,

3/ quoted from the Opinion of U.S, District Court

Chief Judge Garza in Turner v. American Bar

Ass'n, 407 FSupp 451, at 472, footnote 12.

ed in Petitioner's Motion for Rehearing and total-

ly ignored the attached Affidavit of Gordon C

Peterson - "'counsel"' for Thomas Stockheimer 4/.

which showed that Peterson had participated fully

throughout the Trial Proceeding as ''counsel".

for Stockheimer, See Appendix ''C"

AFFIDAVIT

STATE OF MINNESOTA

COUNTY OF HENNEPIN

GOR DON C, PETERSON, being

first duly sworn upon oath, deposes and

says: That he is the Gordon C, Peterson

who acted as assistant to Thomas Stock-

heimer in the Trial before James E Doyle

Federal District Judge for the United States

District Court for the Western District of

Wisconsin, Case No, 74-CR-72 (United

States vs Thomas F. Stockheimer, 74 CR

72: That Affaint (sic) acted as such assis-

tant to Thomas Stockheimer pursuant to

an Order of Judge Doyle dated December

4. 1974.

As such assistant Affiant was per-

mitted to make the Opening Argument to

the Jury; Affiant sat at the Counsel Table

with the Defendant’ conducted the cross

examination of the Government Witnesses;

made objections to the Court on improper

testimony conducted the examination of

the Defendant and all of the Defendant's

Witnesses; made the closing argumentin

4/ U.S. v. Stockheimer, 385 F.Supp 979, (1974)

fact Affiant did everything that any lawyer

would do but with this distinction, Affiant

was Only an assistant, was only the Defend-

ant's spokesman, At no time would Judge

Doyle speak to Affiant without the Defend-

ant Stockheimer being present. Stockhei-

mer was present at all discussions at the

Bench during the Trial; and at all confer-

ences in Court Chambers. Judge Doyle

considered Affiant not as Stockheimer's

attorney nor even his agent, as no agency

was created; Affiant was only doing what

Stockheimer would do in defending himself

as his own attorney pro se. Stockheimer

was speaking and conducting his own Trial

through the person of Gordon Peterson as

his spokesman; his voice, his mind, and

the conveyor. It was if Stockheimer was

speaking and acting throught (sic) his own

shadow who was Gordon Peterson,

Further Affiant Sayeth Not.

s/ Gordon C, Peterson

Subscribed and sworn to before

me this 24th day of Nov. 1976

s/ Kurt F, Walther

Notary Public

("seal'' of Notary Public)

Instead, the Sixth Circuit Opinion said that

the manner in which Peterson had counseled was

the ''same arrangement allowed by the District

Judge in our Case,''(see footnote 3, at 8)

This was not a correct statement. The

‘arrangement’ was notthe same. The Sixth Cir-

cuit errs, and, the Affidavit of Peterson proves

it. Petitioner's Counsel was muzzled; Stockhei-

mer's Counsel was not. 2/

Yet, the Sixth Circuit, in error, denied

Petitioner's Motion for aring stating: (Appen-

dix "BY

Noting in said motion no argument

which had not been previously considered

by the panel which decided the appeal.

Said motion is hereby denied.

The Court of Appeals further stated in its

Opinion that there was: (at 6)

. « « No suggestion of conflict be-

tween the meaning of the Sixth Amendment

and Section 35 is advanced in the briefing

of this appeal, nor has our research devel -

opedany. ... First, since in the Statute

the terms ''counsel or attorneys at law"’

are employed alternately, it seems proba-

ble that the proposers of the Sixth Amend-

ment did not mean to limit representation

exclusively to ‘attorneys at law''. Second,

the Statute clearly provides for the rules

of the courts of the United States to deter-

mine who shall ''be permitted to manage

and conduct causes therein’. By this lan-

guage Congress recognized the Constitu-

tional power given the Federal Judiciary by

by the then recently adopted Constitution,

Article Ill.

5/ Asa result of the Stockheimer Case, Peterson

was prosecuted and convicted in Federal Court.

On appeal the conviction was recently reversed.

See U.S. v. Peterson, Fd (C.A.7,19__)

Where Peterson was exonerated of the conviction

of practicing law without a license.

As a consequence of this holding, the

Sixth Circuit looked to the Rules of the United

States District Court in which Petitioner had been

tried and opined that the phrase '(u)nless other-

wise ordered" found in Rule 3.0.1 gave the Dis-

trict Judge the ''discretion to deal appropriately

with any extraordinary case". The Sixth Circuit

continued in this Opinion stating: (at 8)

. But for a District Judge to

exercise his discretion to allow a person

to try a case who was not a member of the

Bar of the Court and who had not qualified

by taking the required examination, would

at a minimum require a showing that such

person was sufficiently learned in the law

to be able adequately to represent his

client in court. In our instant case the

District Judge was asked to allow an

Accountant with no training in law to try

the case, In denying that request he allow-

ed Appellant to exercise his right to try the

case himself, with the Accountant seated

at the Counsel Table to advise with him

throughout the trial. We find no abuse of

Appellant's Sixth Amendment rights.

(underlining added for emphasis)

Petitioner, however, argues that the Dis-

trict Judge abused his discretion, failing and re-

fusing to consider any factual test of competence

but formal admission to the Bar, and the Court of

Appeals compounded the District Court error in

finding ''no abuse of discretion".

The Court of Appeals erroneously found

that Petitioner had asked to have an Accountant

"with no training in the law to try the case", that

is, to represent him as do members of the Bar -

licensed lawyers. (at 8, quoted above)

The District Court Record shows that

Thiel,the accountant,was not permitted to assist

the Petitioner -not because he had ''no training in

law''©/but, rather, because Thiel was "not a

member of the Bar of this or any other Court"

(R-24). Furthermore, there was no Hearing held

by the District Court to determine if Thiel wasor

was not "learned in the law" or, if he had had any

training in the law". Instead, assistance of Coun-

sel was denied summarily.

Petitioner's Motion for Rehearing pointed

out to the Appeals Court that it was confusing

"representation: with "assistance" of counsel.

Petitioner did not ask for Thiel to "'try the

case"'. As this Supreme Court said in Faretta v.

California, 43 LW 5004: (at )

It is true that when a defendant

chooses to have a lawyer manage and pre-

sent his case, law and tradition may allo-

cate to the counsel the power to make bind-

ing decisions of trial strategy in many

cases. (Citations omitted here)

Instead, Petitioner was only asking the District

Court for the right to '' plead and manage (his)

own cause( ) personally (with) the assistance of

.. . counsel". See Sec. 35, Judiciary Act of 1789

(Chap. 20, §35, 1 Stat. 92, now codified as 28 USC

6/ a determination made without the taking of

evidence.

1654 (1970)2/

_ As this Supreme Court further said in

Faretta, supra: (at )

The Sixth Amendment does not pro-

vide merely that a defense shall be made

for the accused; it grants to the accused

personally the right to make his defense.

It is the accused, not counsel, who must

be informed of the nature and cause of the

accusation", who must be accorded "'com-

pulsory process for obtaining witnesses in

his favor"'. Athough not stated in the

Amendment in so many words, the right

of self-representation -- to make one's

own defense personally -- is thus neces-

sarily implied by the structure of the

Amendment. The right to defend is given

directly to the accused; for it is he who

suffers the consequence if the defense

fails.

Petitioner contends that if this Court, in

Faretta, supra, held that a State could not force a

lawyer upon a Defendant Party since '(t)he right

to defend is given directly to the accused", then,

Petitioner should have been granted the assistance

7/ The amendment to this Section alters the phrase

"by the assistance of such counsel or attorney at

law'' to read only"'by counsel'"'. This alteration is

repugnant to the U.S.Constitution, Amendment Six.

of Thiel - to counsel him, "for it is he (the Peti-

tioner) who suffers the consequence if the defense

fails".

Petitioner further contends that by being

deprived the active participation of the Accoun-

tant "counsel" 8/he was deprived the right of mak-

ing his own defense from the Witness Stand -

under Oath!

If he had taken the Witness Stand, there

would have been no one tc object for him on

cross-examination when the Prosecutor asked

predictable self-incriminating questions for the

purpose of prejudice and conviction, whether ad-

missible by the rules of evidence or not. 9/

The District Judge had previously warned

the Petitioner on the Record that the public looked

unfavorably on anyone who would exercise his

8/ The Trial Judge said, during the Pre-Trial

Hearing that: (PT-6:23)

"So that while you are going tobe permitted

during this Trial to have the benefit of an advisor

at the Counsel Table with you, the purpose of that

is so that you can seek on-the-spot advice at the

Table. Youradvisor will not be permitted tospeak

in this Courtroom, address either this Court, the

Jury or any Witness.

9/ See Brief of Appellant, II1-Relevancy of Evi-

dence, wherein the Petitioner argued that the U.S

Attorney not only presented evidence which was

inadmissible but conducted his Opening Statement

in an unprofessional and fatally prejudicial man-

ner.

Fifth Amendment privilege when he said in the

Pre-Trial Hearing that: (PT-8:18)

THE COURT: You are also aware,

Iam sure, of the Fifth Amendment That

is the ''do-nothing" part that most people,

lawyers or not lawyers, are aware of,

You have an absolute right as the defendant

to withhold yourself from the Witness

Stand in this Case, and you are entitled to

have this Jury told that that is the exer-

cise of your right and that the Jury is not

to take that into consideration in passing

on your guilt or innocence -- the fact that

you have exercised your Fifth Amendment

rights. The Fifth Amendment has gotten

sO unpopular in recent years that some-

times people don't want Juries told that,

SO we will leave that entirely up to you,

The Trial Judge was aware of the Fifth

Amendment peril and deliberately deprived the

Petitioner of counsel who could have exercised

the privilege by objection for the Petitioner,

If the exercise of privilege is potentially

prejudicial with counsel to assert it, how much

more would it have been if the Petitioner had

taken the Witness Stand in his own defense, and,

On cross-examination, vocally exercised his

Fifth Amendment right? Petitioner could not

afford to take that risk without counsel to object,

and the Trial Judge knew it

As a consequence, Petitioner could not

take the Witness Stand in his own defense since

his "counsel: had been muzzled -

prohibited from objecting on cross-examination

to the predictable inadmissible and self-incrimi-

nating questions raised by the Prosecutor

The proximate result was abject denial of

Due Process to the Petitioner: He was deprived

of the right to effectively manage and conduct his

own defense. He was denied his Ninth Amend-

ment right to justice without purchase or delay 10;

He was denied his First Amendment right to

assemble peaceably with George Thiel, his choice

of counsel; to petition the Government for redress

of grievances, and assert his Fifth and Sixth

Amendment rights.

The Sixth Circuit judicially notes that

neither its Circuit nor the Supreme Court has

ever passed upon the precise question presented

by Petitioner; to wit: Does the Sixth Amendment

provide the unqualified _!!/ eight to enjoy the assis-

tance of counsel? The Opinion states: (at 4)

Nonetheless, the question posed

by this Appeal remains open for our con-

sideration, since it has never been passed

upon either by this Court or by the United

States Supreme Court,

Petitioner contends that under the facts and

circumstances of this Case that the Sixth Circuit

erred in finding no abuSe of discretion by the Dis-

10/ See Magna Charta, (40 and see also 45) which

is protected by the Ninth Amendment.

1/ See Chandler v. Fretag, 348 US 3. which states:

res ". , his right to be heard thraugh his

own counsel is unqualified. "'

trict Court. The Court of Appeals has erroneous-

ly ruled in conflict with Federal Law and also the

U.S. Constitutionally protected rights of the Peti-

tioner, The Appeals Court has so departed from

the accepted and usual course of judicial proceed -

ings by reading "assistance of counsel'but of its

historical context 12/ and upholding the error of

the District Court in this matter, that the Supreme

Court must supervise their actions and correct

the injustice done to Petitioner Whitesel.

Petitioner 80 moves.

12/ See Reply Brief of Appellant, I, Right of

Counsel, pp. 1-10, wherein Petitioner presented

the Sixth Circuit Court of Appeals American

Colonial Charters which proved that "assistance

of counsel'' could mean a friend or neighbor

See Appendix ''D"'

B 1/

ELECTION OF COUNTS _

Whether the Government was bound |

by Law to make an election whether

to prosecute on Counts |. and III or

on Counts II. and IV, pror to trial.

The Indictment in Petitioner's Case was

returned on October 7, 1974, charging the Peti-

tioner, first with FAILURE TO MAKE a tax

return at the times prescribed by law (Counts I.

and III.) and, secondly, with FAILURE TO

SUPPLY information upon an IRS Form 1040

(Counts Il. and IV,) for the Years 1972 and 1973,

respectively.(26 USC 7203)

Petitionercontends that the Government

had no lawful authority to charge him and simul-

taneously try him for both the FAILURE TO

MAKE and FAILURE TO SUPPLY information

after his timely objection noted in the Record

(R-13) see also (PT-3:3), Petitioner further con-

tends that these Charges were intentionally and

willfully combined to prejudice and confuse the

Jury into returning a conviction against the Peti-

tioner. The unlawful combination of Counts did not

come by accident or ignorance. The facts bear out

this contention, to wit:

1/ "Election of counts'' means: ''The doctrine un-

der which the prosecution may be required to

elect on which charge it will proceed to the trial

under an indictment which is in two or more

counts for separate and distinct offenses. 27AmJ Ist

Indict 8133. . . . Ballentine's Law Dictionary.

At the time the Indictment was returned

against the Petitioner, on October 7, 1974, the

question of election on these IRS Charges had

been raised and settled for more than a year in

the case of U.S. v Radue, 486 F2d 220(C.A.5,

1973) where the Fifth Circuit Court of Appeals

wisely said: (at 222)

Radue's most substantial conten-

tion is the second, namely that the two

Counts contained in the Information were

duplicitous. Because Radue filed a blank

form 1040 as a protest, the Government

was faced with a dilemma. Sincea "blank"

1040 form does not constitute a return,

. » » the Government could elect to pro-

secute for failure to file. Conversely,

since a blank form obviously omits certain

information, the Government could elect

to prosecute for failure to supply informa-

(underlining added for emphasis)

The Radue case, supra, should have set-

tled the matter for the Prosecutor and the Court.

The Fifth Circuit Court of Appeals told the Gov-

ernment that it had to make an election, i.e.

whether to prosecute for FAILURE TO MAKE a

return or, whether to prosecute for FAILURE TO

SUPPLY information. The refusal of the Prose-

cutor to do so in Petitioner's case was a deliber-

ate attempt by the Government to flaunt the law,

prejudice the Jury, and insure conviction with the

active participation of the Trial Judge. 2/

2/ Let this Court take Judicial Notice that the IRS

instructs Federal Judges how to punish "'tax pro-

testors'' and stresses the ''compliance problem"

in our ''voluntary" income tax system. See Appen-

dix vom fe

Obviously, the Prosecutor was retaliating

against the stinging legal defeat he had suffered

at the hands of the Petitioner, acting pro se with

George Thiel's help, to wit:

Petitioner had successly attacked a prior

criminal Information pending against him and

forced its dismissal, This single count Informa-

tion filed on April 12,1974, 2’ charged the Peti-

tioner with making a false and fraudulent state-

ment upon the IRS Form W-4E, "Exemption from

Withholding Certificate" (26 USC 7205). There

was no sworn Affidavit supporting this criminal

Information to show Fourth Amendment authority

for the Petitioner's illegal arrest at the instiga-

tion of the vindictive U.S. Attorney. and, conse-

quently, the District Judge was forced to grant the

Petitioner's motion to dismiss, Later on, in this

case at Bar, this dismissed Charge became Count

V. of the massive, prejudicial Indictment returned

against the Petitioner to punish him for his legal

prowess.

After the landmark Jury acquittal of Alvin

Borchardt 4/on an identical charge in Miami,Flor-

ida the prosecution policy of the Government

shifted radically to guarantee confusion, preju -

dice and conviction by the addition of counts of

failure to make a return (26 USC 7203) and of

failure to supply information (26 USC 7203) joined

S. v Whitesel, Case No. CR 174-25,

, So. Dist. Ohio.

3/ See

U.S. D.

4/ See U.S. v. Borchardt, Case No.

U.S.D.C., So. Dist. Florida.

with the false’ W-4E count (26 USC 7205), 5/

in an Indictment against Whitesel, the Petitioner,

It has also been the policy of the Govern-

ment to prejudicially charge Tax defendants with

both failure to make a return and with failure to

supply information if the evidence of the one is

considered insufficient to obtain a conviction from

the Jury.

Proof of these tactics is revealed in an

Official letter from Henry C. Stockell, Jr., IRS

Regional Counsel to Scott P. Crampton, Asst, Atty,

General, Tax Division, Washington, D.C. , dated

October 2, 1972, recommending criminal prose-

cution in the H. Byron Gaar Tax case. 6/ A portion

of this Letter follows:

In transmitting the Case to this

office, the District Director also recom-

mended that Taxpayer be prosecuted for

willful failure to supply information invio-

lation of Code, 6 7203, for the Years 1966

through 1971. This office is of the opinion

that the evidence of failure to file is so

clear and convincing that there is no need

to include the willful failure to supply infor-

mation charges. The Government has en-

5/ A mountainous obstacle, when under the legi-

timate rules of evidence and case law, the issue

of ''tax liability’ is material to one count and im-

material to the other count. See Argument, here,

entitled: ‘Illegal Joinder"

6/ See U.S. v. Gaar, Case No. 73-B-394, U.S. D

C., So. Dist. Texas

countered some difficulty in attempting to

combine charges of failure tofile with fail-

ure to supply information. See the recent

case of Dr, William C, Douglass, ATL-E-

1531, 2/

(underlining added for emphasis)

The Radue case, supra, should have settled

the matter once and for all, but the Prosecutor

and the Trial Judge ignored it.

The matter of election is pursued further in

in U.S. v. Chrane, 529 F2d 1236 (CA5, 1976)

where the Fifth Circuit said: (at 1237)

Chrane's final contention is substan-

tial. He argues that Counts One and Three,

charging failure to file 1040 Returns, and

Counts Two and Four, charging failure to

supply information on the Form 1040's for

the same Years, were multiplicitous and

prejudicial, . .. We agree with Chrane,

and continuing, where Judge Godbold rightfully

states: (at 1238)

. The two offenses here are co-

terminous, in effect one offense with two

labels. Defendant cannot be convicted of

both, and the conviction should be on only

Counts One and Three or Counts Two and

Four. The Case must be remanded, On

remand the Government must elect whether

7/ See U.S. v, Douglass, 476 F2d 260(C.A 5,

1973).

it wishes to leave in effect the convictions

on Counts One and Three or those on

Counts Two and Four. The Government

having elected, the Court must then vacate

the convictions on the other two Counts

and resentence the Defendant.

The Petitioner's case, here, is slightly

distinguished from Chrane's, supra: Chrane did

not seek separate trial of the Counts. The Dis-

trict Judge in Chrane's case did not promise to

treat the harges "in the alternate". When

Whitesel 8 raised the issue of the prejudicial join-

der the Court said: (PT-3:3)

THE COURT: Now, there are four

Charges under that Section (7203) in this

Indictment, They are alternate, however,

The Counts with respect to failure to give

information, in respect of each of those,

two years are alternate charges, .. .

(underlining added for emphasis)

Did the Petitioner's Trial Judge instruct

the Jury that Counts Il. and IV. were "alternate

charges'' to Counts |. and III, ? No! Asa direct

consequence of the lawless joinder, the Jury re-

turned a verdict of conviction on all four Counts

(I.- IV.), and the Trial Judge sentenced on all

four Counts.

In the Opinion of the Court of Appeals in

8/ Petitioner Whitesel had moved the Trial Court

to sever the Counts, The Court denied this motion.

(R-14). See following Argument, entitled, ''Joinder"’

pp. 31-45

30a

Petitioner's case, the Court vacated the Sentence

for Counts II. and IV. but failed to remand the

Case for a new Trial. The vacation of the Counts

at this late date does not cure the substantial pre-

judice which guaranteed conviction on Counts I.

and III. by refusal to sever prior to Trial.

Petitioner contends that the Sixth Circuit

Court of Appeals requires the supervision of this

Court in this Case for rendering this Whitesel de-

cision in conflict with the law as stated in Radue,

supra, and with Chrane, supra, and for its erron-

eously affirming the actions of the District Court.

Election prior to Trial was required by

Law. The District Court's failure to do so fatally

prejudiced the Petitioner as will be shown in the

following Argument, entitled, ‘Illegal Joinder"'

ILLEGAL JOINDER

Whether the Petitioner was fatally

and erroneously prejudiced by the

joinder of Counts 1, II., III, ,Iv

and V,

Petitioner Whitesel entered a Pre-Trial

motion to quash the Indictment, meeting the re-

quirements of Rule 12(b), F.R.C.P. In this Mo-

tion to Quash Indictment by the Grand Jury, the

Petitioner said: (R-13)

That to include Count(s) II., III. ,

IV., and V. with Count I., constitutes a

misjoinder of actions, and as such would

be extremely oppressive in nature.

The District Judge denied this Motion, sta-

ting: (R-14)

4. The motion to quash indictment

by the Grand Jury on the ground of repug-

nancy between Count I, and Counts II, thru

V. is denied. If there be any need for any

ele-iing in this Case, the subject will be

1/ "Misjoinder of causes of action" means: ''The

impropriety in joining in one complaint,. . . dis-

tinct causes of action which should not be joined

because of the want of consistency between them,

. because they do not arise out of the same

transaction, or because of other circumstance

precluding joinder under the practice in the parti-

cular jurisdiction. 1 AmJ2d Actions §§ 100 et seq.

. .'' Ballentine's Law Dictionary.

dealt with at the proper time.

During the Pre-Trial Hearing, one. day be-

fore the Trial started, Petitioner, again, brought

up the severance of the Counts, stating: (PT-26:12)

DEFENDANT WHITESEL: ...

shouldn't these Charges be separated?

In answer, the Trial Judge Hogan said: (PT-26:13)

THE COURT: They will be separa-

ted. This Jury will be told to consider

each separately, ...

However, there was no instruction given by

the Court to the Jury that Counts II. and IV. were

to be treated by them in the alternative to Counts

I. and IIl., although Judge Hogan had assured the

Petitioner during the Pre-Trial Hearing that they

would be, to wit: (PT-3:3)

THE COURT: Now, there are four

Charges under that Section of the Indict-

ment. They are alternate, however. The

Counts withrespect to failure to give infor-

mation, in respect of each of those, two

Years are alternate charges, so that even

assuming a conviction across the board on

those four Charges, the maximum penalty

that would be involved in the aggregated of

those four Charges would be uptoa

$20, 000 fine or up to two years imprison-

ment.

Furthermore, when the Jury returned a

verdict of "Guilty" on all five Counts, the District

Judge sentenced the Petitioner on each Count

separately.

On Appeal, the Sixth Circuit merely

brushed aside the District Court's error by

vacating the convictions on Counts II, and IV.and

failing to consider the fatal prejudice which the

Petitioner had suffered by the misjoinder of a}l

five Counts. The Court of Appeals erred by

dismissing the matter by "merger''£’, to wit:

(see Appendix '"'A"', Opinion, at 8)

Appellant also complains that the

Counts on which he was convicted are du-

plicitous and that they are fatally at vari-

ance. The two arguments, of course, are

contradictory but it does become obvious

that Count | and 3, and 2 and 4 charge

much the same offense and would be estab-

lished by the same proofs. Doubtless, for

that reason the District Judge made the

sentences concurrent. Our review of this

Record convices us that what was proved

was failure to file 2 and, as a consequence,

that the convictions on Counts 2 and 4 per-

2/ The doctrine of merger is not applicable in

this Case: There was no felony charged.

"Merger of offenses"' means: ''The common

law doctrine that if a misdemeanor is an integral

part of the felony and prosecution can only be for

the f@iony, 21AmJ2d Crim. L. §9. .. ."'Ballentine's

Balentine''s Law Dictionary.

3/ Petitioner's comment: But only with the fatal

prejudice of the other Counts hanging over Whitesel

to insure conviction, The Jury deliberated fora

full day and part of the next morning.

taining to failure to supply information

should be stricken on grounds of merger, £/

(underlining added for emphsis)

The Sixth Circuit initially erred by making

a finding of fact - that ''what was proved was failure

to file'’, That was a factual finding to*have been

made by the Jury but the Trial Court erred by fail-

ing - at the very least - to instruct on the "alter-

nate'' Charges.

Because of this and what the Petitioner will

show this Court later it is Petitioner's contention

that certiorari should be granted. The Sixth Cir-

cuit has not only rendered this decision in conflict

with the decisons in other courts of appeals on the

same matter, but it has also so far departed from

the accepted and usual course of judicial proceed-

ings as well as sanctioning the departure by the

District Court that it calls for an exercise of this

Court's power of supervision.

The Petitioner was fatally prejudiced by

this misjoinder which the Sixth Circuit totally ig-

nored, contrary to law, to wit:

In Drew v U.S., 331 F2d 85(CA . 1964)

‘the Circuit Court said: (at 88)

The justification for a liberai rule

on joinder of offense appears to be the

economy of a single trial.

The Circuit Court in Drew, supra, also stated

that: (at 90)

If, then, under the rules relating

to other crimes, the evidence of each of

the crimes on trial would be admissible in

a separate trial for the other, the possibi-

lity of "criminal propensity" prejudice

would be in no way enlarged by the fact of

joinder. When, for example, the two

crimes arose out of a continuing transac-

tion or the same set of events, the evi-

dence would be independently admissible

in separate trials. ... In such cases

the prejudice that might result from the

jury's hearing the evidence of the other

crime in a joint trial would be no different

from that possible in separate trials.

Was there erroneous and fatal prejudice

caused by joinder in this Case?

The Drew Court lists what evidence of

other crimes are admissible, stating that if they

are relevant to: (at 90)

. . « (1) motive, (2) intent, (3)

the absence of mistake or accident, (4) a

common scheme or plan embracing the

commission of two or more crimes so re-

lated to each other that proof of the one

tends to establish the other, and (5) the

identity of the person on trial. ,

then, joinder is permissible - absent prejudice.

The Court of Appeals added that ''(w)hen the evi-

dence is relevant and important to one of these

five issues, it is generally conceded that the pre-

judicial effect may be outweighed by the probative

value",

Petitioner contends that there was no ''sub-

stantial, legitimate purpose''for joinder (Drew, at

90); that, instead, the Prosecutor's purpose was

to so prejudice and confuse the Jury that it would

return a conviction on all five Counts. 4/

The Drew Court sets out the following rea-

sons aS argument agairst joinder: (at 88)

. the Defendant may be preju-

diced for one or more of the following rea-

sons: (1) he may be come embarrassed or

confounded in presenting separate defenses;

(2) the jury may use the evidence of one of

the crimes charged to infer a criminal dis-

postion on the part of the defendant from which

which is found his guilt of the other crime

or crimes charged; or (3) the jury may cu-

mulate the evidence of the various crimes

charged and find guilt when, if considered

separately, it would not sc find. A less

tangible, but perhaps equally persuasive,

element of prejudice may reside in a latent

feeling of hostility engendered by the charg-

ing of several crimes as distinct from only

one. ...

Was the Petitioner prejudiced according to

one of these reasons against joinder?- or more

than one reason? Let us examine the four major

points with respect to joinder in this Case:

Point (1): Was Petitioner "EMBARRASSED

(and) CONFOUNDED IN PRESENTING SEPARATE

DEFENSES"? .

First of all, there was the question of "'tax

4/ See preceding Argument, entitled ''Election of

Counts'"'which substantiates this contention

liability'' which Petitioner contended was a mate-

rial issue for Counts V. as well as Counts II, and

IV, which the District Court erroneously denied >/

and the Court of Appeals ignored in its Opinion,

The Petitioner argues that ''tax liability'’ was not

a material issue on Counts I, and III, (even as to

willfulness under the facts and circumstances pre-

vailing).©/

Secondly, the Petitioner was faced with

the multiplicitous Counts of II. and IV. (which the

Court of Appeals vacated). If the Petitioner testi-

fied in his defense on Counts I. and III. (failure to

make a Return) then, he would have been incrimi-

nating himself on the multiplicitous Counts of II,

and IV, (failure to supply information on an IRS

5/ During the entire Trial the District Judge fail-

ed and refused to permit the Petitioner to cross-

examine or defend on''tax liability". For example:

_ When the Petitioner cross-examined the IRS Spe-

cial Agent (who had recommended prosecution) if

he had determined the Petitioner's tax liability,

the Agent failed to answer the question;then, the

Trial Judge interjected with: (T-187:11)

THE COURT:"His answer is he didn't. He

didn't because this Case involves a failure to file

or failure to furnish financial information. This is

not an evasion case, This case is based ona law

which requires people if their gross income ex-

ceeds a certain amount, to file a tax return and ona

a law which requires people to furnish financial in-

formation as required by law. This is not a tax

evasion case. '' The Judge failed to recognize the

existance of Count V. !

6/ See the following Argument entitled, ''Tax

Liability/Counts I. and III. "' pp,56-57

BEST COPY AVAILABLE

1040) since the exercise of his Constitutionally

protected rights were not recognized by the Pro

secutor, the IRS, or the District Court as accep-

table information on Petitioner's IRS 1040 Form.

Thirdly, the Petitioner was faced with the

duplicitous Counts I. and III. which charged him

with FAILURE TO MAKE a return (at the time

prescribed by law) in which one of the factual ele-

ments of the offense charged was his failure to

supply information, "stating specifically the items

of deductions and credits to which he is entitled".

If the Petitioner had testified that he was invoking

his Constitutionally protected rights on his Tax

Returns (Counts I. and III.) and that he was also

relying on previous decisions of this Supreme

Court in accordance with U.S. v Sullivan, 274 US

259, and U.S. v. Bishop, 412 US 346, respective-

ly, then, he would be incriminating himself and

convicting himself for having failed to supply in-

formation "'stating specifically the items of deduc-

tions and credits to which he is entitled"’". The

Trial Court erroneouly failed to take Judicial No-

tice as to whether the Petitioner had properly in-

voked his Constitutionally protected rights as to

each individual question on the Returns, relying

on the Court to make a determination after a hear-

ing in accordance with the Heligman doctrine See

Heligman v U.S., 407 F2d 448(CA 8, 1969)

Lastly, if the Petitioner testified that he

did not and could not "anticipate a tax liability''for

the Year 1972 (Count V.) and submitted numerical

and financial evidence to that effect to convince

the Jury, then, the Petitioner would have had to

surrender his Constitutionally protected rights

which he had originally claimed on his Tax Returns

for the Years in question, 1972 and 1973 (Counts

I. and III. ), in spite of the fact that the Trial Judge

had given him no legitimate or meaningful hearing

on this issue in accordance with the Heligman doc-

trine, supra.

In Cross v. U.S. ,335 F2d 987 (CADC 1964)

Chief Judge Bazelon stated in respect to improper

joinder of offenses: (at 989)

Prejudice may develop when an ac-

cused wishes to testify on one but not the

other of two joined offenses which are

clearly distinct in time, place and evi-

dence. His decision whether to testify

will reflect a balancing of several factors

with respect to each count: the evidence

against him, the availability of defense

evidence other than his testimony, the

plausibility and substantiality of his testi-

mony, the possible effects of demeanor,

impeachment, and cross-examination. But

if the two charges are joined for trial, it

impossible for him to weigh these factors

separately as to each count. If he testifies

On one count, he runs the risk that any ad-

verse effects will influence the jury's con-

sideration of the other count. Thus he

bears the risk on both counts, although he

may benefit on only one. Moreover. a de-

fendant's silence on one count would be

damaging in the face of his express denial

of the other. Thus he may be coerced into

testifying on the count upon which he wish-

edto remain silent, It is not necessary

to decided whether this invades his Consti-

tutional right to remain silent, since we

think itconstitues prejudice within the

meaning of Rule 14

- SE <P -

In Cross, supra, Chief Judge Bazelon had

stated the following: (at 989)

Rule 14 provides:

"If it appears that a defen-

dant * * * is prejudiced by a join-

der of offenses * * * for trial to-

gether, the court may order an

election or separate trials of —

counts * * * or provide whatever

other relief justice requires. "'

"Therefore, if because of the * * * (join-

der) prejudice developed and was not

cured by requiring an election or by other

relief, material error afflicted the trial.

Prejudice has consistently been held to

occur when * * * (joinder) embarrasses or

confounds an accused in making his de -

fense. Pointer v United States, 1894, 151

US 396, 403, . Kidwell v United States,

1912, 38 App D C.566, 570 See also,

McElroy v United States, 1896, 164 US 76,

78, . . .'' Dunaway v United States,

205 Fed 23, 24 (1953). See also Drew v

United States, . 331 F2d 85.

Point (2): DID THE JURY USE THE EVI-

DENCE OF ONE OF THE OFFENSES CHARGED

TO INFER A CRIMINAL DISPOSITION ON THE

PART OF THE PETITIONER FROM WHICH IT

FOUND GUILT OF THE OTHER OFFENSES

CHARGED?

In the context of time, the Petitioner's al-

leged offense (Count V. ) MAKING A FALSE AND

FRAUDULENT STATEMENT on an IRS W-4E

("Exemption from Withholding Certificate" sub-

mitted to his Employer on August 1972) came

first intime. Then, Petitioner's alleged offenses

of FAILURE TO MAKE a Tax Return (Count I. )

and FAILURE TO SUPPLY information on that

Return (Count II.) followed some 7 months later

(Calendar 1972). Then, Petitioner's second alleg-

ed offenses of FAILURE TO MAKE a Tax Return

(Count III.) and FAILURE TO SUPPLY informa-

tion on that Return (Count IV.) for the following

(Calendar) Year 1973.

Because the District Judge failed to per-

mit the Petitioner to introduce evidence going to

the material issue of "'tax liability" ?/and because

the District Judge permitted an "expert" IRS Wit-

ness to testify that the Petitioner had a ''tax liabi-

lity” for both Sascediied yee 7" the District

Judge forbid Whitesel to argue2 e>/"tax liability",

there was the inevitable and predictable result:

The Jury had to conclude that the Petitioner had

made a false and fraudulent statement as charged

in Count V—- They were forced to do so by the

errors of the Trial Judge. Consequently, the

Jury was fatally prejudiced into believing that the

Petitioner's invocation of his Constitutional. pro-

tections on the IRS Form 1040 as to the other

7/ The alleged false and fraudulent statement as

charged in Count V. is found on the IRS W-4E

Form. It states:''Under penalties of perjury, I

certify that I incurred no liability for Federal in-

come tax for 1971 and that I anticipate that I will

incur no liability for federal income tax for 1972.

8/ The IRS ''Chart Witness''-"Expert" testified:

(Te 224:2) ''They (the computations) represent the

tax liability basedupon the evidence inthis Case."

four Counts (I., II], and IV, ) was just''cover

up". The Jury was ae to believe that the Peti-

tioner was indeed "Criminally disposed". The

means of forcing the Jury into a prejudiced verdict

was illegal and prejudicial joinder.

The statements made by the Prosecutor in

his Opening Statement and his line of examination

of his Witnesses would lead the Jury to mistaken-

ly believe that the Petitioner was charged with re-

fusal or failure to pay taxes and that he had plenty

of money with which to pay these taxes -and, that

the real charge laid against the Petitioner was tax

evasion.

For example, look at the testimony of

David Izor and of Terrance Wyatt relating to what

the Petitioner had told them (presumably going to

intent): That testimony and the events it described,

on or about November 14, 1973, and within the

period of 10 weeks, between June through August

of 1973, respectively - was not material or

relevant even as to willfulness. Consequently,

their testimony was not admissible for Counts I.

and II, and Count V. since the events occurred

after the fact, and were not legally probative

Predictably, the Prosecutor had everything

"going for him" as he deliberately stacked up the

damaging testimony and evidence for all five

Counts of the Indictment in a confusing and preju-

dicial package. Predictably for the Petitioner, a

tinner by trade (sheetmetal worker), the attempt

to defend against the prejudice of five misjoinder

major criminal Counts was just too much for any

9/ All inadmissible.

defendant to handle.

Point (3): THE RESULT WAS THAT THE

JURY ACCUMULATED THE EVIDENCE OF THE

VARIOUS OFFENSES CHARGED (two of which

were later vacated by the Sixth Circuit) AND

FOUND THE PETITIONER GUILTY.

If the Charges had been presented separa-

tly and legitimately with the inadmissable evi-

dence and testimony properly prohibited by the

Judge, with proper instructions to the Jury on the

Law, the Jury could never have returned the

verdicts of guilty.

Point (4): WAS THE PETITIONER PRE-

JUDICED AND SEPARATED FROM THE JURY

WITH INADMISSABLE AND PREJUDICAL TES-

TIMONY AS TO WHITESEL'S FAMILY ASSESTS -

THAT THE PETITONER HAD $28. 000 IN A SAV-

INGS ACCOUNT?

The Jury had to feel covetous, envious or

jealous toward the Petitioner for having such a

large sum of money in the Bank. None of them

could ever expect to accumulate such a sum in

their lifetime, especially with the burden of in-

come taxes to cope with. The Petitioner's ab-

sence from the Witness Stand only increased the

hostility and prejudice of the Jury. He had no

chance to explain the legitimate reasons for the

$28,000 family savings, wherein the Lord Jesus

had prospered Whitesel's wife and children.

The evidence of each Offense could not

possibly be simple or distinct, nor could the

District Judge give a proper Jury charge There

was uncontrollable confusion and prejudice build-

. =< -

ing continually throughout the Trial to the fatal

prejudice of the Petitioner.

Common Justice, the rules of evidence,

Due Process, the Law and the Cases demanded

election by the Prosecutor prior to trial on

Counts I. and III. (failure to make a Return) or

on Counts II. and IV. (failure to supply informa-

tion), and a separate trial on Count V.

The Law demanded that the Trial Judge

sever the Counts since "'tax liability'' was a mate-

rial issue for Count V. (and for Counts II. and

IV.) and "'tax liability'"’ was not a material issue

on the others (Counts I. and III. ) 6/

The Law required that the Trial Judge

give proper instructions on material evidence as

to the various Counts which he failed and refused

to do.

Predictably, the joinder of offenses was

fatally prejudicial to the Petitioner. Justice de-

manded the Court of Appeals to vacate the convic-

tion on Counts II. and IV. and also required that

the Court of Appeals reverse or remand the Case

to the District Court for separate, new trials on

the remaining offenses-the one trial on Count V.

where "'tax liability'' was a materia! issue, and,

the other on Counts I. and III where ''tax liability"'

was not a material issue. The Court of Appeals

failed and refusedtodoso. The injustice remain-

ing cannot be tolerated in a free country.

It is the solemn duty of the U.S, Supreme

Court to take jurisdiction in this Case,so that

Petitioner Whitesel, living in the Sixth Circuit

can enjoy the same and equal protection of the

Law (forbidding misjoinder) as citizens of other

Judicial Circuits enjoy.

Petitioner so moves

D. 1

DUPLICITOUS COUNTS I. & III.

Whether Counts I. and III (failure to

make a tax return) were duplicitous

Count I. and III of Petitioner's Indictment

charged him with a willful and knowing failure to

make a return £/ forthe “Years 1972 and 1973, re-

spectively. (26 USC.7203)}

The elements of these offenses of omission

were described in the following manner in the In-

dictment: (R- 1 ) «

1. that Petitioner Whitesel "had and re-

ceived a gross income" of $22, 946. 52 (Count I. )

and of $21. 068.58(Count III. )

2. "that by reason of such income, he was

required by law 3/, following the close of the close

of the calendar year'"'1972 (Count I.) 4nd 1973

(Count III.) ''to make an income tax return 2/to

the District Director of Internal Revenue for the

Internal Revenue District of Cincinnati at Cincin-.

1/ 'Duplicity'"means the joining in single count

of two or more separate offenses". U.S v Chrane,

529 F2d 1236, 1237 f.n.(CA5 1976).

2/ The word''knowingly''is not found inthe Statute

provision (26 USC 7203), thus it is surplusage and

fatally prejudicial to the Petitioner.

3/ No law is cited, thus, Petitioner was deprived

of knowing the''nature and cause of the accusation "'

made against him in violation of Amendment Six,

U.S. Constitution.

nati, Ohio, 2! i in the Southern Judicial District of

Ohio, or to the Director, Internal Revenue Ser-

vice Center, Central Region, Covington, Kentucky2!

3. "stating specifically the items of his

gross income and any deduction and credits to

which he was entitled;""=

26 USC 7203 sets out the offense as ''fail-

ure to make a return at the time prescribed by

law",

Petitioner contends, however, that he was

charged by the Indictment,(and, the Trial Judge

instructed the Jury accordingly)with both FAIL-

URE TO MAKE areturn and FAILURE TO SUPPLY

information in each and both of Counts I. and III,

notwithstanding the multiplicitous charging of

FAILURE TO SUPPLY in Counts II and IV,

The Trial Judge's charge to the Jury was

as follows: (T-279:19)

THE COURT: ... Let's take this

Return one first That is Count I. and III,

First, that the Defendant was required by

law to make a return in the year in ques-

tion; that is to say, did he have enough

gross income to require a return? Second, Ny

did he fail to file within the time within the :

subsequent April, the 15th -- before the :

subsequent April the 15th? Did he fail to

file a Return which constitutes a legal re-

turn at the time required by Law? And,

third, was that failure, if any, to file such

a return wilifui? Those are the essential

elements of the crime in these failure to

file offenses.

(at T-282:7)

THE COURT: Now, as to any pos-

sible problem or claim that what was filed

on April the 15th, on or about April the

15th in 1973 and 19743; that is to say, whgt is i

is in evidence here as Exhibit 64/ and 132

the one being "I protest'' written on a return

blink4/ except for the name and so on be-

ing the blank return,-/ mostly blank which

contains all the attachments, references

to various provisions, whether that consti-

tuted a return as required by law, is: The

Returns were compietely devoid of informa-

tion concerning his i income or deductions

or exemptions required. A taxpayer's re-

turn which does not contain any information

relating to his income, deductions or

choice of deductions or exemptions from

which a tax can be computed is nota return

within the meaning of the law. So, your

first and second are failure to file charges

-- your first and third Counts.

(underlining added for emphasis)

The Trial Judge, therefore, ruled that the

failure to make a return had to be premised upon

a Return which did not "'contain any information

relating to his income, deductions or choice of de-

ductions or exemptions from which a tax can be

computed",

In other words, even though the Petitioner

4/ Count 1. - Year 1972

5/ Count II. - Year 1973

had invoked his Constitutionally protected rights -

rather than give numbers, i.e. supply numerical

or financial information - the Judge charged that

such was not a Return "within the meaning of the

law", Therefore, the Supreme Court must con-

clude that in these Counts that the Petitioner was

actually being simultaneously charged with FAIL-

URE TO MAKE a return at the time prescribed by

law and with FAILURE TO SUPPLY INFORMA-

TION on that same Return considered in Count I.

and the Return considered in Count III.

Is this conclusion correct? The 5th Cir-

cuit Court of Appeals seems tothink so. See

U.S. v Chrane, 529 F2d 1236 (1976), to wit: (at

1237)

. . . For each year in question the

Internal Revenue Code required the Defen-

dant to file a Return and to supply the in-

formation requested thereon if he had a

gross income of more than $600, 26 USC

§§6012(a)(1), 6011l(a) and (e), as amended,

26 USC $8$6012(a)(1)(A), 6011(a) and (f),

(Supp. III. , 1973). ...

. . . The government does not

claim that Chrane violated any legally-

imposed duty to supply information that is

broader than the obligation to supply the

information called for by ‘the Form 1040's.

(at 1238) . . . The Statutory scheme contem-

plates that the form for a Return will be

filed with appropriate information noted

thereon. If the form is filed in blank it is

not a Return. Radue, supra, The failure

which causes a filed but blank form not to be

be a return is the omission of information

therefrom, ...,

(underlining added for emphasis)

As we can see, the Fifth Circuit in Chrane's

case, supra, has ruled that when one invokes his

Constitutionally protected rights upon his Return

in accordance with this Court's decisions in U.S

v Sullivan, 274 US 259, and U.S. v Garner, 44

LW 4323, it has often been ruled a "blank'' Form

1040 because of ''the omission of information

therefrom". In other words, the FAILURE TO

SUPPLY information upon the Form 1049 Return

(an offense under 26 USC 7203) makes one, simul-

taneously guilty of FAILURE TO MAKE a Return

at the time prescribed by Law (also an offense

under 26 USC 7203).

Petitioner contends that the Sixth Circuit

erred in its Opinion when it judicially coupled

two Internal Revenue Statute Provisions (66012

and § 6011) without authority in order to affirm

Whitesel's conviction as to Counts I. and III.

26 USC 6012(a) states that a person mak-

ing a gross income over a certain amount is re-

quired to make a return, to wit:

(a) General Rule. Returns with

respect to income taxes under subtitle A

shall be made by the following:

For the Year 1972:

(1)(A) Every individual having for

the taxable year a gross income of $600

or more,...

For the Year 1973:

(1)(A) Every individual having for

the taxable year a gross income of $750

Or more, ...

In the Code of Federal Regulations perti-

nent to this Section 6012, the following statement

is found: 26 CFR 1. 6012(a)(6)

(6) Form of Return. Form 1040

is prescribed for general use in raking

the return required under this paragraph.

In other words, the only requirement set out by

Statute or by IRS Regulation is that an individual

is required to make a return upon an IRS Form

1040. No provisionof this Regulation section re-

quires the supplying of information upon that IRS

Form 1040.

The language of 26 USC 6011 requires in-

formation only from those who are liable for a

tax,— to wit:

(a) General rule. Every person

subject to any tax, . . . under subtitle A

6/ The Fifth Circuit was in error in the Chrane

decision, supra, when it stated that subsection(f)

of 6011 was applicable, however, it only refers

one to 6012. It uphold$ instead, Petitioner's con-

tention that a return must be filed under 6012

"whether or not there is tax liability", to wit:

'(f) For requirement that returns of income,

. . . be made whether or not there is tax liability,

see sections 6012...

of the Code shall make such returns, . ,

as are required by the regulations in this

chapter. The return. . . shall include

therein the information required by the ap-

plicable regulations or forms.

(underlining added for emphasis)

When is an individual liable for a tax?(or

subject to a tax?) The answer is either when he

assesses himself an income tax by filling ina

1040 Form— or when the judgment of an Article

III. Court if final determining that the person is

liable for a tax. (See 26 USC 7422 or 6213, 7441,

and 7482, see also 7481)

It necessarily follows that if one does not

choose to assess himself a tax upon a Form 1040

(by invoking his Constitutionally protected rights

a la Chrane and Whitesel, the Petitioner here)then

he cannot be liable for a tax until the tax is law-

fully determined by a "'final assessment" ina

Court of Law. Therefore, Section 6011 and its

provisions cannot apply to the Petitioner because

there is no tax liability lawfully assessed against

him. Judicially speaking, the Petitioner is not’

liable for any tax unless the Courts are making ex

parte findings without the consent of the tax payers.

Let us assume arguendo, that the Govern-

ment Establishment was attempting to apply 26

USC 6001 without letting the Petitioner in on the

secret. Maybe it could apply to those persons who

had not invoked their Constitutionally protected

7/ which establishes the amount of the''voluntary"

self-assessed tax to become official when it is re-

corded by the IRS. See 26 USC 6201, 6203.

rights upon their Return in accordance with

Sullivan, supra, and Garner, supra - but, does it

apply to the Petitioner Whitesell?

Section 6001 demands the supplying of in-

formation upon a Return if Notice is given to do so,

to wit:

. . . Whenever in the judgment of

Secretary or his delgate it is necessary, he

may require any person, by notice served

upon such person or by regulations, to make

such returns, . . . as the Secretary or his

delegate deems sufficient to show whether

or not such person is liable for tax under

this title.

When the District Director served such

"Notice'' (Govt. Exs.9 & 10) on Whitesell, the Peti-

tioner responded to the IRS District Director as

follows: (Govt. Ex. 11)

Dear Sir:

Since receiving your letter stating

that my Tax Return was not accepiable, I

have read and studied the Constitution of

the United States of America, which I'm

sure you will agree is the foundation of all

the laws of the United States of America.

In so doing I find that it is impossible to

fill out a 1040 Form without giving up my

Constitutional rights.

If I may direct your attention to the

following sections of the Constitution of the

United States of America: Article I, Section

9; Article I. , Section 10; Article III , Sec-

tion 2; Article IV., Section 2; Article IV ,

Section 4; Article VI., Section 1; Amend-

siete eee

—

ments I,,IV.,V.,VI.,IX.,X., XL. XI

and XIII,

I would like to comply to Internal

Revenue Service's Rules if you could show

me how to do so without giving up the afore-

mentioned Constitutional sections.

If I don't receive a reply to this let-

ter within ten days I will assume that you

can't advise me how to fill out your 1040,

without giving up my Constitutional rights

and that I don't have any tax liability for

any of the tax years in question or for any

furture years.

Constitutiorally yours,

s/ Roger L. Whitesel

(notarized)

The District Director failed and refused to

offer the Petitioner any assistance with the prepar-

ation of his Tax Return in clear violation of the

Congressional mandate of ''Taxpayer Assistance"

for which great sums of money are annually appro-

priated.

The District Director "assisted'' Whitesel

by attacking him like some sort of criminal - first

by inquisition, then, by Indictment!

The Indictment in Counts I. and III. charged

the Petitioner with failure to make a Return''stating

specifically the items of his gross income and any

deductions and credits to which he was entitled" 8/

8/ A.search of old Tax.Laws shows that this phrase

was limited to corporations, and, consequently it

is not only not lawful for use 9n an Indictment again-

st an individual but such use must be fatally preju-

dicial - as it was to Petitioner.

that is, with failure to supply information - both

separate offenses under 26 USC 7203.

The Trial Court charged the Jury for Counts

I. and III. that: (T-282:17)

. A... Return which does not

contain any information relating to his in-

come, deductions or choice of deductions

or exemptions from which a tax can be com-

puted is not a return within the meaning of

the law. . .

Again, the Trial Judge was charging the Jury that

the Petitioner had not only FAILED TO MAKEa

return but had also FAILED TO SUPPLY informa-

tion. And, in view of the Fifth Circuit's decision

settling the law on this subject rationally (Chrane,

supra,), the Supreme Court should rule that

'(t)he failure which causes a filed but blank Form

not to be a return is the omission of information

therefrom". This determination would admit that

the offense is both one of failure to make a return

and failure to supply information, both separate

offenses under 26 USC 7203 and the joinder must

be Judicially Noticed.

The Petitioner argued this matter on appeal.

Naturally, the Court of Appeals ignored the chal-

lenge - failing and refusing to make a ruling in

this matter. Consequently, it is necessary for

this Court to supervise the Sixth Circuit in this

matter since, by its silence, the Court of Appeals

has decided an important question of Federal law

which has not been, but shouid be, settled by this

Court.

Petitioner so moves.

ees

C—O —— ——

TAX LIABILITY / COUNTS I, & III.

Whether "'tax liability'' was material

to the offense charged in Counts I.

and III.

Petitoner has already presented to this

Court the question of whether Count I. and III.

are duplicitous in which the Chrane case, supra,

was cited as controlling in the Court of Appeals

for the Fifth Circuit.

In the Chrane case, the 5th Circuit ruled

that both Sections 6012 and 6011 are invdved in an

offense of failure to make a return at the time

prescribed by law (26 USC 7203) in which the

Court of Appeals stated: (at 1238)

The Statutory scheme con-

templates that the form for a Return will

be filed with appropriate information noted

thereon. If the Form is filed in blank it is

not a Return. Radue, supra. The failure

which causes a filed but blank form not to

be a return is the omission of information

therefrom. Sie = pedal

(underlining added for emphasis)

and (at 1237)

. For each year in question the

Internal Revenue Code required the Defen-

dant to file a Return and to supply the in-

formation requested thereon if he had a

gross income of more than $600. 26 U.S.C.

§§ 6012(a)(1), 60ll(a) and (e), as amended,

Petitioner has shown this Court that 26

USC 6011 requires information only from one who

is ‘subject to any tax''. Consequently, if the

Chrane Court is correct in its finding that Sections

6012 and 6011 must be read together, then Peti-

tioner contends that "'tax liability" was material

to the charges of Counts I. and III. Therefore,

The Trial Court erred to the fatal preju-

dice of the Petitioner in his failing and refusing

to permit evidence going to ''tax liability" to be

entered into the Trial by the Petitioner. Like-

wise, the Sixth Circuit Court of Appeals erred by

remaining silent on this matter and affirming the

convictions on Counts I, and III. Justice would

have required either a reversal on these Counts

or remand to the District Court for a new trial

where ''tax liability'' would have been a material

fact for the Jury to determine.

By the silence of the Sixth Circuit, that

Court has decided an important question of Fed-

eral law which has not been, but should be,

settled by this Court, thus, requiring the exercise

of this Court's power of supervision.

Petitioner so moves.

TAX LIABILITY / COUNT V.

Whether ''tax liability'' was material

to the offense charged in Count V.

(''false'' W-4E)

In Count V. of the Indictment, Petitioner

was charged with making a false and fraudulent

statement upon an IRS Form W-4E, "Exemption

from Withholding Certificate" on which he claimed

that he incurred no liability for Federal income

tax for the Year 1971 and that he anticipated he

would incur no liability for Federal Income Tax

for the Year 1972. (26 USC 7205)

Is ''tax liability''a material issue? Peti-

tioner contends that it is: - that he was charged

with telling a lie regarding his ''tax liability''for

the Years 1971 and 1972. That is what the Indic-

ment says.

Petitioner was strictly forbidden to intro-

duce any evidence going to "'tax liability" by the

Trial Judge - claiming that "tax liability" was not

material. 1/ The Jury was not instructed about

"tax liability", in spite of the fact that the Prose-

cution kept shouting ''tax liability" to Petitioner's

prejudice throughout the Trial, 2/

After the Petitioner argued this issue in

his BRIEF OF APPELLANT the Court of Appeals

refused to acknowledge or recognize the issue of

1/ See for example, footnote 5/, p 37

2/ See for example. footnote 8/, p. 41

"tax liability" as it applied to Count V. in its

Opinion. Instead, it affirmed the conviction on

Count V.

The question of tax liability is a vital issue

which the Supreme Court has not considered, and

should be settled as to the facts and circumstances

of this Case. The Court of Appeals, by its silence

sanctioned the District Court's totally illegal de-

parture from the accepted and usual course of ju-

dicial proceedings by affirming the Conviction on

Count V. where the only material issue of the

charge was forbiddent to be entertained by the Peti-

tioner, ic ''tax liability". Such actions requires the

exercise of this Court's power of supervision.

The Petitioner so moves.

4 acl wich neni eles

FAIR TRIAL & TAX LIABILITY

Whether a determination of Petitioner's

"tax liability'' was necessary ~ if any

there was, - to assure a fair trial.

It is the Government's policy to prosecute

a person criminally before civil action is initiated

in Tax Cases. See U.S v.Brodson, 155 FSupp

407 (Dist. Ct. E. D. Wisconsin).

In Brodson, however, the District Court

ruled that a fair trial was more important than

Government policy, to wit: (at 408)

This Court cannot pass upon the

desirability of that Government policy, It

is the duty of this court to see that tne De-

fendant has a fair trial, Where the enfor-

cement of the Government Policy would de-

prive the Defendant of a fair trial, it is

the duty of the Court to give precedence

to the right of the Defendant to have a fair

trial over and above the Government policy,

Although Petitioner's case is distinguished

from that of Brodson's, a just court would have

decided for the fair trial over Government policy.

In Brodson, supra, '‘fairness'' revolved

around the releasing of assets seized by the IRS

so that Brodson could "use them in the prepara-

tion and defense" of his tax criminal case. The

use of these assets was "in the preparation and

defense of this case''. This is what the District

Court determined whould make for a fair trial -

the settlement of the civil liability before proceed-

ing with the criminal trial.

Here, in Petitioner's case, "fairness" re-

volved around a more substantial issue, to wit:

Was there a tax liability? This was a material and.

substantial issue for all five Counts of the Indict-

ment. As a consequence, there could be no just

determination of the innocence or guilt of the Peti-

tioner on the Charges until the question of whether

Petitioner did or did not have a tax liability had

been settled in accordance with law instead of the

unlawfully given opinion given by the IRS "'chart-

witness''-"expert"’.

Is the Government Policy to proceed with

prosecution on criminal charges before civil action

is pursued lawful?

The Sixteenth Amendment says, "No'!. The

power is given to ''lay and collect taxes on incomes".

The Case law holds that the proper purpose

of the Tax Laws is to raise legitimate revenue -

not to foster criminal prosecutions.

Whereas Petitioner suffered criminal pro-

secution when there had never been a civil deter-

mination - in accordance with law - whether or not

he had a tax liability, other American citizens are

afforded Due Process by the IRS not recommending

criminal prosecution but rather proceeding against

the individuals with the filing of a Statutory Notice

of Deficiency (26 USC 6212) resulting ina civil

determination - via the Tax Court - as to whether

or not there was a tax liability.

Two recent Tax Court Petitioners,

almost identical with Petitioner in the manner in

which they made their Tax Returns - They are Ed-

ward A. Cupp {see 65 T.C.6) and Raymond M. Hart-

man, 65 T. a filed December 15, 1975),

Both Cupp and Hartman invoked the protec-

tions afforded them by the Bill of Rights upon their

IRS Form 1040; both of them relied on previous de-

cisions of this Court for making their returns in the

manner in which they did, both of them believed that

they had not earned Dollars, yet neither of them

have been prosecuted before the IRS had determined

their lawful tax liability.

Why was Whitesel, the Petitioner, here,

treated differently than were Cupp and Hartman?

Why was the Government Policy to prose-

cute first followed with the Petitioner and not follow-

ed with Cupp and Hartman?

Why was Brodson allowed to proceed with

his civil action, whereas, the IRS failed and refused

to initiate civil action with the Petitioner ?

Why was Brodson granted a ''fair trial",

whereas Whitesel was deprived of everything guar-

anteed by the U.S. Constitution including an im-

partial Jury?

The answers are not available to this writer.

However the facts in this case are: The Sixth Cir-

cuit Court of Appeals departed so far from the ac-

cepted and usual course of judicial proceedings when

it failed and refused to recognize in its Opinion

the error committed by the Trial Court on the issue

of ''tax liability" and affirmed the convictions on

Counts I., III. and V. instead of reversing them

or remanding them to the District Court for new

trials, after ''tax liability'' had been or not been

established in accordance with the law.

The failure to so act requires this Court

to exercise its power of supervision in order that

the Petitioner may havea "fair trial'' as did Brod-

son, supra.

The Petitioner so moves.

ee eee ee oe |

elle it A el le EA RO te

ee oe |

WILLFULNESS / COUNT V,

Whether the Instructions to the Jury

were in conformance with the Garner

Decision and the Bishop Decision.

The Petitioner was charged in Count V.

with making a false and fraudulent statement upon

an IRS Form W-4E, Exemption from Withhoid-

ing Certificate". (26 USC 7205)

The alleged false and fraudulent state -

ment is as follows: (Govt. Ex. 14)

Under penalties of perjury, I certi-

fy that I incurred no liability for Federal

income tax for 1971 and that I anticipate

that I will incur no Liability for Federal in-

come tax for 1972.

The facts in the Case show that the Peti-

tioner had atax refund of $41. 19 for the Year 1971

and that the Petitioner had $2, 185.90 withheld in

taxes for the Year 1972 up to the time on August

4, 1972. when he submitted the W-4E form to his

employer.

The Internal Revenue Law, 26 USC 3402(a)

describes the funds withheld from wages by an

employer as "income tax''. See Tablesl, et seq

It would have been Petitioner's defense if

he had been permitted to take the Witness Stand

in his own defense, that he believed that by his

receiving a tax refund of $41. 19 for the Year 1971

that he had not "incur(red)'' a "liability for Fed-

eral income tax for 1971'' and because of his hav-

ing had $2, 185.20 withheld in income tax for the

Year 1972 that such amount would be sufficient

for any taxes due for that Year - thus, he did not

"anticipate that (he would) incur (a) liability for

Federal income tax for 1972, since it had already

been paid.

The facts show that at the time he submit-

ted this W-4E Form to his employer he also sub-

mitted a paper entitled, ''Notice to Stop Withhold-

ing'' to his employer (see Govt. Ex 15). In this

"Notice'' the Petitioner invoked his Fourth and

Fifth Amendment protections. and concluded by

stating:

13) I hereby agree to pay my equi-

table share of taxes only for constitutional

expenses of a patriotic government which

obeys The UnitedStates Constitution. I am

NOT refusing to pay a lawful tax, lawfully

imposed, when I am paid in iawful money and

and/or legal tender which is U.S. Notes,

and/or gold and silver coins.

There was no attempt by the IRS to notify

the Petitioner that his W-4E form was not entirely

satisfactory, even though the IRS was immediately

notified of Petitioner's actions by the Employer

It wasn't until the U.S. Attorney filed a Bill

of Information against the Petitioner on April 12,

1974, that the Petitioner was notified of the IRS's

objection to his W-4E Form The charge was the

same as that found, here, in Count vi

1/ See footnote 3/, p 27

The Petitioner contends that the District

Judge's instructions to the Jury were erroneous

and fatally prejudicial to him;- The Judge failed

entirely to define "'tax liability'"' and the instruc-

tion on willfulness failed to follow the criteria as

set out in U.S. v Bishop, 412 US 346 (1973), to

wit: (T-286-18)

THE COURT: Now, willfully here

has a slightly different meaning. Willfully

means simply that the Defendant knew the

requirement of telling the truth and inten-

tionally and with a bad purpose didn't tell

the truth, told a falsehood, if that be the

case.

The good faith does not come into

this fifth Charge in this sense. There is

no such thing as knowingly and intentional-

ly and willfully making a false statement

knowing it to be false intending for some-

body to rely on it and act in a certain way,

there is no such thing as doing that and be-

ing in good faith about it. If a person knows

whathe is saying is false, and it is not cor-

rect in fact, and says it intending for an-

other person to act on it, all the good faith

in the world can't make what is false in

fact true. So, in that sense good faith is

not included in willfulness in respect of

that requirement of the fifth Charge.

Under the facts of the Case, where there was evi-

dence offered by testimony showing his good faich

intentions and by exhibits showing his invocation

of his Constitutional protections and his reliance

on law - whether they were valid or erroneous,

then, good faith should have been part of the Judge's

instruction.

Athough Garner v U.S., 44 Lw 4323( 1973)

was in reference to a 26 USC 7203 offense, Peti-

tioner contends that the doctrine set out there,

should be equally applicable to this 7205 offense

of Count V.

This Court said that: (at 4328)

. . . The Fifth Amendment itself

guarantees the taxpayer's insulation again-

st liability imposed on the basis of a valid

and timely claim of privilege, a protection

broadened by § 7203's statutory standard

of ''wilfuiness".

In the accompanying footnote to this statement,

this Court said: (f. n. 18)

Because § 7203 proscribes "willful"

failure to make returns, a taxpayer is not

at peril for every erroneous claim of privi-

lege. The Government recgonizes that a

defendant could not properly be convicted

for an erroneous claim of privilege assert-

ed in good faith. ...

Petitioner had in good faith made out the

W-4E Form. Petitioner had in good faith submit-

ted his ''Notice'"' to his employer at the same time

setting out his understanding of the law and invok-

ing his Fourth and Fifth Amendment protections in

a timely fashion.

It was up to the Jury whether they wanted

to believe what he had done was or.was not done

in good faith, however erroneous and invalid it

may have been (or not been). However, the Judge

"shut the door'' in their face. The instructions

prohibited them from making any determination

on Count V. since "'tax liability'' was never defined

and the Judge had already, in substance, made the

factual determination that ''good faith does not come

into this. . . Charge".

On appeal, the Sixth Circuit held that there

was ''no error prejudicial to Appellant's rights"

by the Judge's instructions to the Jury. (at 10)

In Petitoner's Motion for Rehearing, Peti-

tioner argued using the Garner case, supra, for

the first time.

In the Order denying this Motion the Sixth

Circuit stated that such Motion was denied since

"no argument which had not been previously con-

sidered by the Panel which decided the Appeal"

The Court of Appeals erred in its Opinion

when it upheld the Instructions of the Judge; and

the Court erred also when it failed to take notice

of the Garner cage on Rehearing.

As a consequence of the Sixth Circuit's

sanctioning the errors of the Trial Judge in his

Instructions, and as a consequence of the Sixth

Circuit's ignoring this Court's decision in the

Garner and Bishop cases, these errors call for

the exercise of this Court's power of supervision.

Petitioner so moves.

WILLFULNESS / COUNTS I, & III,

Whether the Instructions to the Jury

were in conformance with the Garner

Decision and the Bishop Decision

The Petitioner was charged in Counts I.

and III. with failure to make a tax return. (26

USC 7203)

Petitioner timely filed his IRS Form 1040

Individual Income Tax Return for the Year 1972

and invoked his Constitutional rights, saying:

(Govt Ex. 6)

Under protest, I plead the Fourth

and Fifth Amendment to the United States

Constitution.

No financial information was given upon

the Return by the Petitioner, and he took exception

to each individual question thereon.

Petitioner timely filed his Income Tax Re-

turn-tor the Year 1973 wherein he took exception

to each individual question. Attached to this Re-

turn was a Petition of 111 pages for redress of

grievances in which the Petitioner showed: that

he was relying on previous Decisions of this Su-

preme Court; that he was invoking his Constitu-

tional rights for his own protection; and that he

believed on the basis of his reading and know-

ledge of the laws as they pertained to the Ameri-

can money and tax system that some were Consti-

1/ on which he printed: ''Object, see attach-

ments",

tutional while others were not. He asked in the

Prayer that he be given both an administrative and

judicial determination on his Fifth Amendment ob-

jections where he would "be given the benefit of his

full Constitutional rights",

On April 9, 1974, the IRS mailed the Peti-

tioner a Notice/Letter in which Petitioner was ad-

vised that his Return was not acceptable since a

return which had no figures upon it from whicha

tax could be computed was nota return ''within the

meaning of the law'' and also advising him to sub-

mit a new return, otherwise, he could be prosecu-

ted under 26 USC 7203. This was for the Return

for 1972.

The following July 29, 1974, the Petitioner

received the identical Notice/Letter for the Return

for 1973.

Three days after the first Notice/Letter

was sent, the U.S. Attorney, by Information,

charged the Petitioner with making a false and

fraudulent statement on a W-4E Form - later that

Year the Charge was dropped (and reinstituted

by Grand Jury Indictment as Count V. of this Case).

A month after the second Notice/Letter was

sent to Petitioner, in August 1974, the IRS started

investigation of the Petitioner although the Chief

of the IRS Intelligence Staff, Central Region, testi-

fied that no investigations were initiated for 45

days of mailing such Notice/ Letter.

On September 20, 1974, the Petitioner

answered this Notice/Letter stating in part that:

(Govt Ex. 11)

I find that it is impossibleto

fill out a 1040 Form without giving up my

Constitutional rights.

I would like to comply to Internal

Revenue Service's Rules if you could show

me how to do so without giving up the afore-

mentioned Constitutional sections.

Instead of an answer from the IRS, the Petitioner

was Indicted on October 7, 1974.

During the course of the Trial proceedings,

there was testimony entered substantiating Peti -

tioners reliance on his Constitutional protections

and his belief that the only Dollars which were law-

ful and Constitutional were gold and silver coins

and U.S. Notes. Other testimony (which Petitioner

contends was inadmissible and so argued on appeal)

would place the Petitioner's motive elsewhere

All the Exhibits entered, again, showed

his reliance on his Constitutional protections and

his reliance on Supreme Court decisions and on

the Law as he understood it regarding taxes and

money.

The Petitioner contends that the Instructions

given by the Ccurt to the Jury were fatally preju-

dicial - absolutely closing the door to any determi-

nation by the Jury as to willfulness wherein his

good faith assertion of his rights and his reliance

on Supreme Court decisions and on the Law. whe-

ther they right or erroneous.

The Trial Court instructed the Jury that:

(T-282:17)

A taxpayer's return which does not

contain any information relating to his in-

come, deduction or choice of deductions or

exemptions from which a tax can be compu-

ted is not a return within the meaning of the

law. ...

Petitioner had relied for. his Return for Year 1973

upon this Court's decision in U.S. v Sullivan, 274

US 259 in which this Court said that if the return

called:

. for answers that the Defendant

was privileged from making, he could have

raised the objection in the return, but could

not on that account refuse to make any re-

turn at all.

Sullivan, supra, was further negated by the Judge

when he had previously instructed the Jury as fol-

lows: (T-281:15)

Now, this Court states to you as a

matter of law that there was and is no basis

in either fact or law for the reasons assigned

by the Defendant in Exhibit 13 and referred

to in the arguments inthis Case. The ques-

tion of Constitutionality of the Federal in-

come tax system insofar as this Case is con-

cerned, as well as the question of Constitu-

tionality of the Federal Reserve System of

the United States under which every curren-

cy bill any of us have in our pockets was is-

sued, as well as the Constitutionality gener-

ally of the income tax system, vis-a-vis or

as opposed to either or both the Fifth or

Fourth Amendments of the Constitution or

any other parts of the Constitution of the

United States, those questions have repe-

tively through many years been questioned

before the Supreme Court of the United

States insofar as the questions in this case

are involved or as applied to the facts of

this Case; and those laws have been uniform-

ly upheld.

These instructions further negated the previous in-

struction on willfulness when the Trial Judge stated

(above) that ''there was and is no basis in either .

fact or law for the reasons assigned by the Defen-

dant'. This statement made "good faith misunder-

standing of the requirements of the law'"' and the

Petitioner's ''reasons" for "his refusal, if any, to

file an income tax return in the manner required

by law" ''were in good faith and based on his actual

belief'' meaningless. (see T-280:5-281:14)

The form of an instruction on willfulness

was there, but the substance had been yanked out

by the Judge who not only instructed the Jury on

the Law, but in so doing - in error - he made the

determination of the factual issues for the Jury.

In truth the Jury was only the ''mouth-piece" for

the Judge!

In Garner v U.S., supra, this Court said

that a Defendant deprived of a hearing on whether

he had invoked his privilege rightly would not be

prejudiced since he would be insulated by the stan-

dard of ''willfulness", to wit: (at 4328)

The Fifth Amendment itself

guarantees the taxpayer's insulation again-

st liability imposed on the basis of a valid

and timely claim of privilege, a protection

broadened by §7203's statutory standard of

wilfulness".

and(at f. n. 18)

Because § 7203 proscribes "willful"

failure to make returns, a taxpayer is not

at peril for every erroneous claim of privi-

lege. The Government recognizes that a

defendant could not properly be convicted

for an erroneous claim of privilege assert-

ed in good faith. ...,

But, Whitesell, the Petitioner was convicted be-

cause the Trial Judge set the instructions to do

just that.

Where was the instruction fromU.S v,

Bishop, 412 US 346(1973) wherein the Supreme

Court said that if one were relying on previous

decisions of the Supreme Court that willfulness

could not be proven? There was none.

The Petitioner was denied an impartial

Jury and was fatally prejudiced by the error of

the Judge's instructions tothe Jury. He was

denied Due Process of Law.

On appeal the Sixth Circuit affirmed the

convictions stating that they could''find no error

prejudicial to Appellant's rights" by the Judge's

instructions. (at 10)

On Rehearing the Court of Appeals noted

that it was denied because ''no argument which

had not been previously considered by the Panel

which decided the appeal" (Appendix ''B")

Petitioner had set out the doctrine set by

Garner, supra, and as argued above, as a new

argument (with others) on Rehearing, therefore

the Court of Appeals erred for the second time

As a consequence of the Sixth Circuit's

sanctioning the error of the Trial Judge in his

Instructions, and as a consequence of the Sixth

Circuit's ignoring this Court's decision in the

Garner and Bishop cases, these errors call for

the exercise of this Court's power of supervision.

Petitioner so moves.

Vill

CONCLUSION

Petitoner has invoked the provisions of

Rule 19, Rules of the Supreme Court, to guarantee

his enjoyment of rights protected by the Constitu-

tion.

This Petition has shown that in Roger L.

Whitesel's case, the Sixth Circuit Court of Appeals:

1. Has rendered a decision on joinder and

election in conflict with the Fifth Circuit.

2. Has decided the issue of counsel as an

important question of Federal Law which has not

been, but should be settled by this Court.

3. Has decided the issue of willfulness in

conflict with Decisions of this Court, and

4. Has so far departed from elementary

standards of Due Process and a fair trial by affirm-

ing Conviction on two mutally exclusive Counts of

the Indictment, the proof of which is utterly im-

possible in simultaneous trial under prevailing

and accepted rules of evidence.

The Trial Court excluded evidence pro-

ferred by the Petitioner as to "'tax liability" and

accepted immaterial evidence by the Prosecutor

as to "'tax liability".

American Justice cannot tolerate one rule

of law to govern the Prosecuion and a different

rule of law to govern the defense. That kind of

"Justice'' was meted out by the Sixth Circuit Court

of Appeals in the Whitesel Case, here.

The U.S. Supreme Court must issue its

writ of certiorari and accept the Case of Roger L

Whitesel for plenary trial reviewing the error in

the Court(s) below - the effect of which has been

to deprive the Petitioner Whitesel of his Liberty

freely granted to him by his Saviour, Jesus Christ,

the Living God of Israel, won by bloodshed of his

Christian Forefathers in the American Revolution

and secured by the Declaration of Independence as

well as the U.S. Constitution and the Bill of Rights.

Simple Justice demands issuance of the writ.

PRAYER

WHEREFORE, Petitioner Whitesel prays

that the U.S. Supreme Court will issue its writ of

certiorari to the U.S. Court of Appeals for the

Sixth Circuit.

ROGER L, WHITESEL

Petitioner pro se

2709 Fleming Road

April 7, 1977 Middletown, Ohio

Certificate of Service:

I certify that I have this 8th day of April, 1977,

mailed - hand delivered 3 copies of this Petition

to the Solicitor Genera partment of Justice.

Washington, D.C.

Appendix ''A''

No. 75-1648

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UniTep STATES OF AMERICA,

Plaintiff-Appellee,,; APPEAL from the

. United States District

Court for the South-

Rocer L. WHIrEsEL, ern District of Ohio.

Defendant-Appellant.

Decided and Filed October 22, 1976.

Before: Epwarps, McCree and Live y, Circuit Judges.

Epwarps, Circuit Judge. Appellant Whitesel appeared be-

fore this court pro se to argue his appeal from conviction

for failure to file income tax returns for the years 1972 and

1973, in violation of 26 U.S.C. § 7203 (1970), and for failure

to supply information to the Internal Revenue Service for the

same years, in violation of 26 U.S.C. § 7203 (1970), and for

supplying false and fraudulent information about withholding

exemptions to his employer, in violation of 26 U.S.C. $7205

(1970). The case was tried to a jury before a District Judge

in the United States District Court for the Southern District

of Ohio and defendant was found guilty on all counts.

Appellant was sentenced to a total of two years imprison-

ment and a total fine $1,500. The sentences by count were

as follows :

2 United States v. Roger L. Whitesel No. 75-1648

Count 5: One year and $500 fine. ~

Count 1: Six months and $500 fine. Both consecutive

to Count 5.

Count 2: Six months — consecutive to Count 5 and

concurrent with Count 1 = and a fine of $500 remitted.

Count 3: Six months — consecutive to Counts 1 and

5 — and a fine of $500 in addition to Counts 1 and 5.

Count 4. Six months — concurrent with Count 3 and

consecutive to Counts 1 and 5 — and a fine of $500

remitted.

The facts proved before the District Court established that

in 1972 Whitesel filed an IRS 1040 Individual Tax Return

containing on page 1 of the return: “Under protest. I plead

the Fourth and Fifth Amendments and the United States

Constitution.” In 1973 no financial information was provided,

but on the form defendant printed: “Object, see attachments,”

and submitted 170 pages of protest material concerning the

income tax system. Defendant's wife filed separate returns.

On August 4, 1972, defendant filed with his employer, Valley

Sheet Metal Works, Inc., an exemption from withholding Form

\W-4(e) in which he stated that he had incurred no liability

for a federal income tax for 1971 and anticipated incurring no

income tax liability for 1972. Thereupon the employer stopped

withholding sums from defendant's pay check but also con-

sulted the Internal Revenue Service about the matter which

led to this prosecution.

The government also introduced W-2 forms showing de-

fendant’s gross wages for 1971 to have been $16,634.56; for

1972, $19,403.42; and for 1973, $19,868.58. An IRS accountant

testified that assuming these gross wages, defendant should

have paid a tax of around $4,500 for 1972 and something over

$5,090 for 1973, these figures apparently being based on stan-

dard deductions. Actually, in 1971 the government record

shows that $3,357.40 was withheld for that year, and after

filing a return, the defendant received a refund of $41.19.

No. 75-1648 United States v. Roger L. Whitesel 3

The issues in this taxpayer protest suit represent an attack

on the present tax system of the United States, its monetary

system, and its system of justice.

First, and of principal concern to this court, appellant con-

tends that he has been deprived of his Constitutional right to

chosen counsel by the District Judge’s refusal to allow him to

be represented at his trial by an accountant, not a lawyer or

a member of the bar, named George W. Thiel. The District

Judge did, however, inform appellant that if he didn’t have the

funds, counsel would be appointed for him and that under the

recent decision of the United States Supreme Court in Faretta

v. California, 422 U.S. 806 (1975), he had the right to represent

himself and if he chose to do so, he could have Mr. Thiel at the

counsel table with him advising him, but Mr. Thiel would not

be allowed to participate in the trial. It is appellant's conten-

tion, however, that the Sixth Amendment right to “counsel”

did not in 1789, and does not now, pertain to members of the

bar, but should be construed as allowing for the advice and

participation of a friend of the accused who is not a lawyer.

This argument has decisively been rejected by three of the

Courts of Appeals which have considered the issue.

The Fifth Circuit dealt with his issue in United States v.

Cooper, 493 F.2d, 473 (5th Cir.), cert. denied, 410 U.S. 859

(1974), where the court stated:

There is no colorable merit in the proposition that a

criminal defendant (especially one who has twice rejected

the services of qualified and competent court-appointed

counsel) is constitutionally vested with the right of assis-

tance or representation by a lay person.

United States v. Cooper, supra at 474.

The same result was reached by the D. C. Circuit in even

stronger language in Harrison v. United States, 387 F.2d 203

(D.C. Cir. 1967), rev’d on other grounds, 392 U.S. 219 (1967):

The Sixth Amendment pledges that “[i]n all criminal

prosecutions, the accused shall enjoy the right ° * ° to

4 United States v. Roger L. Whitesel No. 75-1648

have the Assistance of Counsel for his defence.” This

adjuration necessitates the guiding hand of counsel at

every step in the proceedings against him,” including

“the giving of effective aid in the preparation and trial

of the case.” It is clear that these demands are not

satisfied when the accused is “represented” by a layman

masquerading as a qualified attorney; it is unthinkable

that so precious a right, or so grave a responsibility, can

be entrusted to one who has not been admitted to the

practice of the law, no matter how intelligent or well

educated he may be. This is particularly so where, as

here, the accused is on trial for an offense upon conviction

of which his very life could become forfeit.

Harrison v. United States, supra at 212.

Similar results were reached in United States v. Jordan, 508

F.2d 750 (7th Cir.), cert. denied, 423 U.S. 842 (1975), and

McKinzie v. Ellis, 287 F.2d 549 (5th Cir. 1961). See also

Turner v. American Bar Ass'n, 407 F. Supp. 451, 477-78 (W.D.

Wis. 1975).

Nonetheless, the question posed by this appeal remains

open for our consideration, since it has never been passed upon

either by this court or by the United States Supreme Court.

In fact, as appellant points out, in the Supreme Court's most

recent construction of the Sixth Amendment, wherein it upheld

a criminal defendant's right to self-representation, it employed

language which suggests that there may well be a distinction

between the term “counsel” as used in the Sixth Amendment

and the term “attorney-at-law.”

The colonists brought with them an appreciation of

the virtues of self-reliance and a traditional distrust of

lawyers. When the Colonies were first settled, “the law-

yer was synonymous with the cringing Attorneys-General

and Solicitors-General of the Crown and the arbitrary

Justices of the King’s Court, all bent on the conviction of

those who opposed the King’s prerogatives, and twisting

the law to secure convictions.” This prejudice gained

No. 75-1648 United States v. Roger L. Whitesel 5

strength in the Colonies where “distrust of lawyers be-

came an institution.” Several Colonies prohibited plead-

ing for hire in the 17th century. The prejudice persisted

into the 18th century as “the lower classes came to identify

lawyers with the upper class.” The years of Revolution

and Confederation saw an upsurge of antilawyer senti-

ment, a “sudden revival, after the War of the Revolution,

of the old dislike and distrust of lawyers as a class.” In

the heat of these sentiments the Constitution was forged.

Faretta v. California, 422 U.S. 806, 826-27 (1975). (Foot-

notes omitted. ) |

‘We do not read these words (as appellant would have us

do) as determining that any defendant can choose any person

he wishes, regardless of qualification, to be his counsel in the

trial of a criminal case. But they do suggest our’ careful

examination of the issue.

The Sixth Amendment provides in part that in all criminal

~ prosecutions “the accused shall enjoy the right . . . to have

the Assistance of Counsel for his defence.” Critical to any

interpretation of this language is Section 35 of the Judiciary

Act of 1789 (1 Stat. 73) which was adopted by Congress almost

contemporaneously with its proposal of the Sixth Amendment.'

Sec. 35. And be it further enacted, That in all the

courts of the United States, the parties may plead and

manage their own causes personally or by the assistance

of such counsel or attorneys at law as by the rules of the

said courts respectively shall be permitted to manage and

conduct causes therein.

Judiciary Act of 1789 (Ch. 20, § 35, 1 Stat. 92 (Now codi-

fied as 28 U.S.C. § 1654 (1970) ).

This statute has recently been cited and relied on by the

United States Supreme Court in upholding the Sixth Amend-

1 President Washington signed the Judiciary Act of 1789 one day

tefore Congress proposed the Bill of Rights to the states.

6 United States v. Roger L. Whitesel No. 75-1648

ment right of an accused to elect to defend himself. Faretta

v. California, supra. No suggestion of conflict between the

meaning of the Sixth Amendment and Section 35 is advanced

in the briefing of this appeal, nor has our research developed

any. Assuming, as we do, that the Sixth Amendment was

adopted to make constitutionally secure in criminal cases

rights already existing in the recently adopted statute, two

applicable principles emerge from construction of the “assis-

tance of counsel” guaranteed by the Sixth Amendment. First,

since in the statute the terms “counsel or attorneys at law”

are employed alternatively, it seems probable that the pro-

posers of the Sixth Amendment did not mean to limit repre-

sentation exclusively to “attorneys at law.” Second, the statute

clearly provides for the rules of the courts of the United States

to determine who shall “be permitted to manage and conduct

causes therein.” By this language Congress recognized the

constitutional power given the federal judiciary by the then

recently adopted Constitution, Article ITI.

Interestingly enough, the rules of the United States District

Court which tried this case provide as follows:

2.4.1 Roll of Attorneys

The bar of this court shall consist of those attorneys

heretofore and those hereafter admitted to practice

in this court.

2.4.2 Eligibility

Any member in good standing of the bar of the

Supreme Court of Ohio who resides in or maintains

an office for the practice of law in this district, is

eligible for admission to the bar of this court.

2.4.3 Application for Admission

All candidates for admission to the bar of this court

shall file with the clerk, at least twentv(20) davs

prior to the examination, an application on the

form provided by the Clerk. Said application shall

contain a certificate of two (2) members of the

No. 75-1648 United States v. Roger L. Whitesel 7

bar of this court, vouching for the good moral

character and professional reputation of the appli-

cant. Each candidate shall present himself for

examination at the next examination after the filing

of his application. If he fails to do so, it will be

necessary for him to file a new application

2.4.4 Examination for Admission

Unless otherwise ordered by a judge of this court, —

no applicant shall be admitted except upon suc-

cessful completion of a written examination.

Under the direction of the chief judge, or his

designee, the bar committees at Cincinnati, Colum-

the above named cities on the first Tyesday in

June and December, or at such other times as may

be ordered.

3.0.1 Designation and Responsibility |

Unless otherwise ordered, in all actions filed in or

removed to this court, all parties not appearing

in propria persona shall be represented of

by a trial attorney who is a member of the bar of

this court and who maintains an office for the

private practice of law within this district. When

two or more parties join in a singJe pleading only

one trial attorney shall be designated. Thereafter,

until such designation is changed by order of the

court, upon motion, said trial attorney shall be re-

sponsible for the action and shall! attend all hear-

ings and conferences and the trial

Rules of the United States District Court, Southern Dis-

trict of Ohio, 2.4.1, 2.4.2, 2.4.3, 2.4.4, 3.0.1 (1975).

These rules provide a scheme for the qualification of trial

counsel by examination and admission to the bar of the United

States District Court for the Southern District of Ohio. But

the term “Unless otherwise ordered” employed in 3.0.1 appears

8 United States v. Roger L. Whitesel No. 75-1648

to us to retain in the hands of the District Judge discretion

to deal appropriately with any extraordinary case.2_ We do

not need in this present appeal to spell out what such a case

might be. But for a District Judge to exercise his discretion

to allow a person to try a case who was not a member of the

bar of the court and who had not qualified by taking the

required examination, would at a minimum require a showing

that such person was sufficiently learned in the law to be able

adequately to represent his client in court. In our instant case

the District Judge was asked to allow an accountant with no

training in law to try the case. In denying that request he

allowed appellant to exercise his right to try the case himself,

with the accountant seated at the counsel table to advise with

him throughout the trial. We find no abuse of appellant's

Sixth Amendment rights.®

Appellant also complains that the counts on which he was

indicted are duplicitous and that they are fatally at variance.

These two arguments, of course, are contradictory but it does

seem obvious that Counts 1 and 3, and 2 and 4 charge much

the same offense and would be established by the same proofs.

Doubtless, for that reason the District Judge made the sen-

tences wholly concurrent. Our review of this record convinces

us that what was proved was failure to file and, as a conse-

quence, that the convictions on Counts 2 and 4 pertaining to

failure to supply information should be stricken on grounds of

merger.

2 Cf. Turner v. American Bar Ass'n, 407 F. Supp. 451, 477-78 (W.D.

Wis. 1975).

3 Appellant relies on United States v. Stockheimer, 385 F. Supp. 979

(W.D. Wis 1974), where a District Judge in the United States District

Court for the Western District of Wisconsin held that he had the

discretion to allow a person who was not a member of a bar associa-

tion to advise a defendant in a criminal case. The person involved

had had legal training and the District Judge held he was qualified

to sit with the defendant in court and advise hirn while he represented

himself. This is the same arrangement allowed by the District Judge

i» our case. We do not consider this case authority for a result

opposite to that which we have reached above.

No. 75-1648 United States v. Roger L. Whitesel 9

Repeatedly during the trial and at argument before our

court appellant sought to contend that he was not due to pay

any taxes because he had never received any “legal dollars.”

He argues that only money which is coined from either gold or

silver or immediately backed by gold or silver constitute legal

dollars and as a consequence, since he was not paid in any

such during 1972 and 1973, he is exempt from taxation under

the federal income tax laws. The Eighth Circuit has dealt with

this contention in United States v. Daly, where the court said:

Defendant's fourth contention involves his seemingly

incessant attack against the federal reserve and monetary

system of the United States. His apparent thesis is that

the only “Legal Tender Dollars” are those which contain a

mixture of gold and silver and that only those dollars may

be constitutionally taxed. This contention ‘is clearly

frivolous.

United States v. Daly, 481 Pas Sh 5 ae cert.

denied, 414 U.S. 1064 (1973).

While we agree with this conclusion, we point out that

both the Sixteenth Amendment and the Internal Revenue Code

deal not with “legal tender” but with taxation of “income.”

This record is replete with proof that appellant did receive

“income” during the years 1972 and 1973.

Appellant also argues that the trial judge, all members of this

court, and all members of the United States Supreme Court

are disqualified and should recuse themselves because all are

named in the civil action in the United States District Court

for the Western District of Pennsylvania in which he is a plain-

tiff. This action has now been dismissed by the United States

District Court, although doubtless it is in the appellate process.

More importantly, we do not think that the United States

courts are so fragile as to be subject to being put out of

existence by a civil suit which names all sitting judges. We

believe that the District Judge and the members of this court

who partciipated in this case are correct in refusing to recuse

themselves.

10 United States v. Roger L. Whitesel No. 75-1648

While appellant has many other complaints about the

Judge's exclusion of his evidence (designed, for example, to

prove that plaintiff was the subject of selective and discrimina-

tory prosecution) and the admission or exclusion of certain

other evidence, we have reviewed these complaints and have

been able to find no legal merit to them.

We have reviewd the Judge’s instructions to the jury and

find no error prejudicial to appellant's rights.

Finding no reversible error in the rulings of the court below,

and no abuse of appellant's legal or constitutional rights, we

affirm the judgment of conviction. On grounds previously

stated, we vacate the sentence under Counts 2 and 4. Any

suggestion for reduction of sentence must be addressed to the

District Court under a Rule 35 motion at the completion of

the appellate process in this case.

Appendix '"'B"

Ho. 75-1648

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT FllLEu

UNTTED STATES OF AMERICA, )

Plaintiff-Appellee, ; WNP HERS

ve. } ORDER

ROGER L. WHITESEL. }

Defendant -Appellant .

)

Before: SDWARDS, McCREE and LIVELY, Circuit Judges.

On receipt and consideration of a motion for

rehearing filed in the above-styled case; and

Noting in said motion no argument which had

not been previously considered by the venel which

decided the appeal.

5aid motion is hereby denied.

Entered by order of the Court

Clerk

Appendix "C"

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Appendix ''D"

]

Argument: RIGHT TO COUNSEL, pp5,6 and 7

from: REPLY BRIEF OF APPELLANT

The Supreme Court of the United States says

that the word "'counsel" is not limited to mean a

“"lawyer'' or someone "'licnesed'"' to practice law

by a State. See Faretta v. California, 43 LW 5004,

5008, US » 95 SCt 2525, 45 LEd2d 562 (1975)

where the Court pointed out in footnote 16:

. . . The first lawyers were per-

sonal friends of the litigant, brought into

court by him so that he might "'take’ coun-

sel' with them" before pleading. 1 Pollack

& Maitland, History of English Law 211

(190F). « « «

The Colonial Charters did not limit "coun-

sel'' to that of a ''licensed" lawyer, to wit:

"In Pennsylvania the Frame of Government

of 1683 had contained this clause concerning coun-

sel:

In all courts all persons of all per-

Suasions may... personally plead their

own cause themselves, or if unable, by

their friend, . ."' 4/

In Rhode Island, ''(t)he Constitution of 1792

provided:

"In all criminal prosecutions the ac-

cused hath a right to be heard by himself

4/ Quoted from: The Right to Counsel in American

Courts, Wm. M. Beaney, Univ. Mich. Press, 1955.

Appendix ''D"

and his counsel. "' 4/

"The New York Constitution of 1777 simply

stated that

"in every trial or impeachment for

crimes or misdemeanors, the party im-

peached or indicted shall be allowed coun-

sel, as in civil actions. '' 4/

The Fundamental Constitution for the Pro-

vince of East Jersey (1683) states:

. . . And in all courts persons of

all perswasions (sic) may freely appear in

their own way, and according to their own

manner, and there personally plead their

own causes themselves, or if unable, by

their friends, no person being aliowed to

take money for pleading or advice in such

cases. 5/

'In both parts of (New) Jersey, East and

West, trial by jury found recognition in the early

fundamental laws. In West Jersey, where Quaker-

ism predominated and Penn's influence was strong,

the charter provisions demonstrate clearly the

popular aversion to the legal profession; thus

Chapter XXII of the Charter of Fundamental Laws

of 1676 reads:

"That the tryals of all causes, civil

and criminal, shall be heard and decided by

the virdict (sic) or judgment of twelve hon-

5/ Quoted from: The Sixth Amendment in the Con-

stitution, Francis H. Heller.

Appendix ''D"'

est men of the neighborhood, only to be

summoned and presented by the sheriff of

that division, or propriety where the fact

or trespass is committed;"

and continues immediately with:

''that no person or persons shall be

compelled to fee any attorney or councillor

to plead his cause, but that all persons

have free liberty to plead his (sic) own

cause, if he please, . ."' 5/

"In the New Jersey Constitution of 1776. .

extended a guarantee that

"all criminals shall be admitted to

the same privileges of witnesses and coun-

sel, as their prosecutors are, or shall be

entitled to, "' 4/

"The Massachusetts Constitution of 1780

declared that

"every subject shall have a right to

. . . be fully heard in his defense by him-

self or his counsel, at his election, "' 4/

"The Maryland Constitution of 1776 was

hardly less explicit in its provision that

"in all criminal prosecutions, every

man hath a right. . , to be allowed coun-

sel, . ."' 4/

"The New Hampshire Constitution of 1784

stated that

Appendix ''D!'

"every subject shall have the right

. . . to be fully heard in his defense ”

himself; and counsel. '' 4/

"The Independent Republic of Vermont in

its Constitution of 1777 declared simply that

"in all prosecutions for criminal

offenses, a man hath a right to be heard,

by himself and hisscounsel. . ."' 4/

The only time the phrase "'counsel learned

in the law"' appeared in these early American Do-

cuments was e.g. "treason, murder, felony, or

other capital offense". See Act of South Carolina,

1731. In other words, if your head was at stake,

someone "learned in the law'' seemed to be guaran-

teed. The axiOm "The exception proves the rule"

is applicable here: If counsel "learned in the law"

was intendet, or an "attorney" or "councillor''were

intended, then, it was stated; otherwise, as it is

used in Amendment Six, ''counsel'' means that per-

son in whom the accused chooses to "assist"' him.

Appendix "E"

Cc: aTi-cr

Peres

Regional Cowmee] - Seuthecst Regieg nus § 974

Reterally, the deciviee wrether te iavesti or eet is eatirely

thet of the Diecrict Directer; however, it certainly appeare that this

cone fa the package will naturally heve to be

legally prebetive aud aeet the eteaderd of prosecution of thie office;

based on prier package experience end Cale? Comecl guidelises, «

pechere generally consists of anywhere free five te ten cases; it fe

slee best, however, net specifically required, thet o11 cases ia the

peckare be from the seme judictel district se thet the coupiience

prebles can be caphasised through D.J. te the U. 8. Attormey, aad the

trial judge hinself.

Thies office fe evallable fer direct and indirect sesietance is

connection with further efforts ia thie project.

jaf terry ¢. sreekell, =

Beary C. Steckell, Jr.

Regione! Counsel

ERNAL REVE,

Paccklven

ce! Dietrict Pirecter, Siretuches, Ale.

Atta: Chief, Latelligence Divisios

BEST COPY AVAILABLE

Appendix '"'F"'

APPLICABLE LAW, etc.

MAGNA CHARTA:

40. To none will we sell, to none deny or

delay, right or justice.

45. We will not make men justices, con-

stables, sheriffs, or bailiffs, unless they are such

as know the law of the realm, and are minded to

observe it rightly.

CONSTITUTION OF THE UNITED STATES OF

AMERICA:

Amendment L Congress shall pass no

law respecting. . . the right of the people peace-

ably to assemble, and to petition the Government

for a redress of grievances.

Amendment IV. The right of the people to

be secure in their persons, papers, and effects,

against unreasonable searches and seizures, shall

not be violated, and no warrants shall issue, but

upon probable cause, supported by oath or affirma-

tion, and particularly describing the place to be

searched, and the persons or thins to be seized.

Amendment V. .. . nor shall any person

. . be compelled in any criminal case to bea

witness against himself, nor be deprived of life,

liberty, or property, without due process of law;

Amendment VI. In all criminal prosecutions

the accused shall enjoy the right toa. . . public

trial, by an impartial jury. . . and to be informed

of the nature and cause of the accusation;. .. to

have... witnesses in his favor, and to have the

assistance of counsel for his defense.

Amendment IX. The enumeration in the

Constitution, of certain rights, shall not be contrued

to deny or disparage others retained by the people.

Amendment XVI. The Congress shall have

power to lay and collect taxes on incomes, .. .

Appendix "'F"'

STATUTE PROVISIONS as found in the U.S. Code:

26 USC 6001

6011

6012

6201

6203

6213

7203

7205

7422

7441

7481

7482

28 USC 1654 and Judiciary Act of 1789,

Sec. 35: And be it further enacted, That in all the

courts of the United States, the parties may plead

and manage their own causes personally or by the

assistance of such counsel or attorneys at law as

by the rules of the said courts respectively shall be

permitted to manage and conduct causes therein.

Federal Rules of Criminal Procedure: (FRCP)

Rule 12(b)

Rule 14

Rules of the District Court, Southern District, Ohio

Rule 3.0, 1

Code of Federal Regulations: (CFR)

26 CFR 1.6011

26 CFR 1.6012

Balentine's Law Dictionary

TABLE OF CASES:

“

Chandler v Fretag, 348 US 3

Cross v U.S., 335 F2d 987 (CADC 1964)

U.S.

Appendix "'F"'

Drew v U.S., 331 F2d 85(CA 1964)

Faretta v California, 43 LW 5004

Heligman v U.S., 497 F2d 448 (CA8 1969)

Turner v Amer. Bar. Assn, 407 FSupp 451

U.S. v Bishop, 412 US 346

.C.

.C,

.S.

o Be

, So. Dist. Ohio

5 *%

5S.

., So. Dist. Texas

.S.

Ss.

v. Brodson, 155 F2d 407

S. v Borchardt, Case No. ,

So. Dist, Florida

v Chrane, 529 Fed 1236 (CA5 1976)

v Douglass, 476 F2d 260, (CA5 1973)

v Gaar, Case No

v Garner, 44 LW 4323

v Peterson, ia ___(CA7 1977)

v Radue, 486 F2d 220 (CA5 1973)

v Stockheimer, 385 FSupp 979 (Wis. 1974)

v Sullivan, 274 US 259

v Whitesel, Case No. 174-25,

v Whitesel, 543 F2d 1176 (CA6 1976)

Cupp v. Com. Internal Rev. ,65 T.C. 6

Hartman v. Com. Internal Rev. 65 T. Cc.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.