# Petition — Whitesel v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1510%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 431 U.S. 967 ## Text 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 TO 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 I, 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 ii 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 / 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 38 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 39 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 /"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." 42 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. 43 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- . =" y C JA Latte me dyC eo or New. I rer fee tee Oy Come i m f em ee BEST COPY AVAILABLE 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" 2 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"' 3 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!' 4 "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"' l 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"' 2 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. U.S. Appendix "'F"' 3 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 U U. .C. U. = .C, U .S. .S. » .S. .S. o Be , So. Dist. Ohio 5 *% S. 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1510%3A1. Public record. Not legal advice.