Petition — Irwin v. United States

Supreme Court, U.S

FILED

OCT $ i977

IN THE SUPREME COURT OF TH

UNITED STATES OF AMERICA

‘MICHAEL

October Term RODAK, JR., CLERK

cueNo 7-505:

DONALD C. IRWIN,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO

THE UNITED STATES COURT OF APPEALS FOR

FOR THE TENTH CIRCUIT

Of counsel: Pro se:

Lowell G. Anderson Donald C. Irwin

P.O. Box 536 Star Route 2, Box 169

Mills, Wyoming ©" Green River, Wyoming

82644 82935

TABLE OF CONTENTS

PETITION FOR A WRIT OF CERTIORARI .......+++--

I. OFFICIAL & UNOFFICIAL

REPORTS OF OPINIONS

II. JURISDICTIONAL STATEMENT ..

IV. QUESTIONS PRESENTED FOR REVIEW ..........

V. STATEMENT OF THE CASE .....

VI. ARGUMENT:

A. ASSISTANCE OF COUNSEL

B. DISCRIMINATION

C. GOOD FAITH CLAIM OF PRIVILEGE ......

VII. CONCLUSION ..nccccccccccccccccccccccccecs

VIII. PRAYER ..cccccccccccccccccccccccccccccces

CERTIFICATE OF SERVICE .....seeeeeeees eocccece

APPENDIX:

JUDGMENT OF THE TENTH CIRCUIT ...........

ORDER, DENYING REHEARING

APPLICABLE LAW, ETC.

hat

oe

Cages

1.

IN THE SUPREME COURT OF THE

UNITED STATES OF AMERICA

Case No.

DONALD C. IRWIN,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO

THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

To: The Chief Justice, and, the Associate Justices

of the Supreme Court of the United States of

America.

Comes, now, Donald C. Irwin, petitioner pro se,

who petitions this Court to issue a writ of Certio-

rari to the U.S. Court of Appeals for the Tenth

Circuit.

As grounds, the Petitioner Irwin shows the

Court as follows:

I.

OFFICIAL AND UNOFFICIAL REPORTS

OF OPINIONS

The Opinion of the Court of Appeals for the

Tenth Circuit in U. S. v Irwin, decided and filed

August 8, 1977, Case No. 76-1933, and is attached

hereto as Appendix "A".

To Petitioner's knowledge there has been no

unofficial report made of the denial of Petition-

er's "Motion for a Rehearing" filed on the 6th of

September, 1977.

The Order of the Court of Appeals is attached

hereto as Appendix "B".

Il.

JURISDICTIONAL STATEMENT

Jurisdiction is obtained under Amendment I.,

U.S. Constitution - the right to petition the

Government for a redress of grievances, and, under

Amendment IX. - the right to have the issuance of

a writ of Certiorari under the Common Law.

Jurisdiction is also obtained under Statutory

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

Jurisdiction is further obtained under Stat-

utory 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 conflict with the

decision of another court of appeals on the same

matter; and has decided an important question of

Federal law which has not been, but should be,

settled by this Court; and has decided a Federal

question in a way in conflict with applicable de-

cisions of this Court; and has so far departed from

the accepted and usual course of judicial proceed-

ings, or so far sanctioned such a departure by the

District Court.

Ill.

JUDGMENT TO BE REVIEWED

The Judgment to be reviewed was decided and

filed on August 8, 1977, wherein the Tenth Circuit

Court of Appeals affirmed the judgment of convic-

tion. See attached Appendix "A".

The Order denying Petitioner's Motion for Re-

Hearing is dated September 6, 1977. See attached

Appendix "B".

IV.

QUESTIONS PRESENTED FOR REVIEW

A. ASSISTANCE OF COUNSEL:

Whether the Petitioner was denied his

right to defend in person, with assist-

ance of counsel; and whether the Peti-

tioner was denied the right to have the

assistance of counsel as guaranteed by

the Federal Constitution's Sixth Amend-

ment; and whether the word counsel, as

setforth in the Sixth Amendment, means

licensed attorney.

B. DISCRIMINATION:

C. GOOD

Whether the Court can allow Respondent's

layman representative, while at the same

time denying Petitioner's layman represent-

ative, without denying Petitioner equal

protection, due process and freedom from

discrimination.

FAITH CLAIM OF PRIVILEGE:

Whether a good faith claim of one's rights

can be converted into a crime, and can one

be penalized for exercising his rights

under the Constitution.

V.

STATEMENT OF THE CASE

On July 7, 1976 an Information was filed, and

a Summons directing Petitioner to appear was filed

on July 9, 1976.

The Information alleged that Petitioner had

violated the section under Title 26 of the Internal

Revenue Code 7203, Willful Failure to File Income

Tax Return for the calendar year 1974.

Arraignment was held on July 23, 1976. Peti-

tioner filed various motions and a hearing on

motions was held on July 30, 1976.

The Trial Court had entered an Order on July

26, 1976 holding that the Petitioner was not entitl-

ed to court-appointed counsel and that the Petition-

er may elect to appear pro se or through retained

counsel.

After a Preliminary Hearing held on July 30,

1976, Petitioner was bound over to U.S. District

Court and a one day trial was held on August 3,

1976, the Honorable Ewing T. Kerr presiding where

the Petitioner was convicted.

Various pre-trial motions were filed by the

Petitioner, among these were:

l. Motion For Preliminary Examination which

was granted, and at the preliminary hearing, Peti-

tioner's counsel was ordered removed from the pro-

ceedings.

2. Motion For A List Of Respondent's Witness-

es, which was granted.

3. Notice of Motion and Motion To Inspect

And Copy Records, Papers And Other Relevant Mate-

rial, re. Jury Selection Process, and the motion

was granted. However, the Judge would not grant

a Motion For Continuance of trial in order to give

Petitioner time to copy and inspect; therefore,

through the process of rushing the trial -- Peti-

tioner was in effect denied the motion at least

for the purpose of trial.

4. Petitioner filed a Motion To — based

1

on the Supreme Court's ruling in Garner; the motion

was denied.

5. Motion For A Change Of Venue was filed on

the 30th day of July which was denied.

1/ = Roy D. Garner v U.S. No. 74-100

6. Notice of Appointed Counsel or Co-Counsel,

which Petitioner had entered into a contractual agree-

ment with, to assist him at trial and the Court would

not let chosen counsel sit at the table with Petitioner

anytime during the trial.

7. Petitioner filed an affidavit showing he

felt himself imcompetent to put forth a good defense

without the help of counsel, and he contacted several

lawyers which would not take the case for various

reasons which Petitioner believes to be to shortness

of time to prepare for trial, and the fear lawyers

have of the Internal Revenue Service's retaliation.

Also, Petitioner believes religiously 2/ chet one

should not hire lawyers and the court in its attempt

to give court appointed lawyer sought to force Peti-

tioner to waive his right to remain silent in order

to obtain his right to counsel.

8. Petitioner filed various other motions

including a Motion For Continuance Of Trial. It

should be noted that ten (10) days after arraign-

ment, Petitioner was forced to trial and was denied

his chosen assistant even to sit with him at counsel

table.

2/ Volume I, Page 69.

ASSISTANCE OF COUNSEL

WHETHER THE PETITIONER WAS DENIED HIS RIGHT

TO DEFEND IN PERSON WITH ASSISTANCE OF COUNSEL,

AND WHETHER THE PETITIONER WAS DENIED THE

RIGHT TO HAVE THE ASSISTANCE OF COUNSEL AS

GUARANTEED BY THE FEDERAL CONSTITUTION'S

SIXTH AMENDMENT, 2/ AND WHETHER THE WORD

COUNSEL AS SETFORTH IN THE SIXTH AMENDMENT

MEANS LICENSED ATTORNEY.

Petitioner, Irwin, was denied his right to

defend in person by the fact that the court would

not let him have his chosen assistant sit at counsel

table with him.

The Supreme Court has recently ruled that a

defendant in a criminal trial has the right to

defend himseir. 2/

1/ The Sixth Amendment to the U.S. Constitution

states:

"In all criminal prosecutions, the accused

shall enjoy the right ... to have the as-

sistance of counsel for his defense.

2/ Faretta v California, supra.

How then, by any amount of reasoning, can Peti-

tioner be denied his planning through trusted help-

er and assistant -- the defense of his own trial.

The right to defend in one's own trial is

evidence enough to prove that he should be allowed

to plan his defense using anyone to assist him in

putting forth a good defense, subject only to the

orderly rules of the court.

The complete removal from Petitioner's side

his helper or assistant whom he haa relied upon

to assist him in defending himself in his trizl

was totally a denial of due process and a denial of

is own right to defend in person. This act smacks

the arbitrary injustice which followed the Crown

prior to the signing of the Declaration of Inde-

pendence.

On appeal the Tenth Circuit found that: (Ap-

pendix A, Page 2)

"...the Sixth Amendment does not provide

the right to representation by a lay

person. "Counsel" refers to a person

authorized to practice law.

Petitioner contends that this subject must

be cleared up, and that a great division among the

courts is causing uncertainty as to what rights

10.

defendants in criminal cases have in the area of

counsel, right to defend in person, etc.

Most all courts will admit that a defendant has

the right to defend himself; however, then they start

by interfering with that right when they deny the

defendant his chosen spokesman or representative.

They seem to be saying; yes, you can defend

yourself; however, I am not going to give you the

same advantage as I will a lawyer and you will have

to sit at counsel table alone unless you want to

hire one of my colleagues who is an officer of this

court.

It should be noted in this instant case that

Plaintiff had sitting at their counsel table lay-

3

man assistance. —

Is this the court's boasted declaration that

the defendant has the right to defend himself?

Petitioner contends the court denied his right to

defend himself by denying his planned defense and

the Tenth Circuit condoned this action without

blinking.

3/ Trial Transcript, Page 19 line 19, 20, 21

and 22.

ee

ll.

Petitioner contends that if he has the right

to defend himself in a criminal trial -- that the

judge in that trial can in no way interfere in that

right by restricting that planned defense by not

allowing assistance to sit at counsel table, irre-

gardless or authorization to practice law or not.

: The Court of Appeals disregarded the fact that

the word "assistance" is commonly understood to

mean help or aid by an auxiliary or subordiante.

As stated in the Sixth Amendment, the accused has

the right to the "assistance" of Counsel for his

defense -- meaning, of course, that Counsel is to

"assist" the accused. The very common practice to-

day, however, of an attorney "taking over" and "run-

ning" the defense entirely, with the accused acting

as “assistant,” is a reversal of the way things were

meant to be. Should the accused wish to allow the

attorney to "run" the case, he is free to do so,

but should he not wish to allow the attorney to “run”

the case, he -- the accused -- is protected by the

supreme Law of the Land from being forced to do so,

the Sixth Amendment directing that Counsel in all

criminal prosecutions assist the accused defendant.

The accused may also choose to raise "assistant"

Counsel to "co-Counsel" status, but the prerogative

is, by law, the accused's.

12.

It is particularly wortly of note that the Sixth

Amendment commands that the accused "shall enjoy" --

or take pleasure in -- all who assist him as Counsel;

and that any of the above-mentioned displeasures

which might evolve would be reason enought to dis-

miss that Counsel and replace him with someone else

more compatible with his designs who can and will

act in a constructive way. The Sixth Amendment places

this judgement squarely in the hands of the accused,

not the Court, and nowhere in the U.S. Constitution

is any specific power granted by We, the People, to

the Judiciary to control who shall or who shall not

act as Counsel for an accused. This Court is remind-

ed that, according to the Ninth and Tenth Amendments,

the United States and State governments have only

those powers delegated to it by the Constitution, and

that those ‘powers not delegated to the United States

by the Constitution, nor prohibited by it to the

States, are reserved to the States respectively, or

" and that "The enumeration in the

to the People,’

Constitution of certain rights, shall not be con-

strued to deny or disparage others retained by the

People."

Reference to the common law is both necessary

and desirable to proper understanding and interpreta-

tion of the U.S. Constition, especially the first

ten amendments, The Bill of Rights. We find one

expression of that common law in a citation from

13.

perhaps the most influential of the Colonial docu-

ments protecting human rights, The Pennsylvania

Frame of Government of 1682.4/ No limit of qualifi-

cation was intended to be put upon the right of an

accused to enjoy the assistance of Counsel for his

defense in the Sixth Amendment and Petitioner here-

in submits the word "Counsel" was used so as to keep

the way open for friends of the accused as well as

for lawyers, licensed or non-licensed.

The trial court plainly errored when it told

Petitioner that, "If you want to talk to him in

the halls during the trial of the case, you are at

liberty. He cannot sit at the table with you ." 3/

Such audacity, such tyranny and such discrim-

ination. The Petitioner had the right to defend

himself, and the court had no right or duty to

step in and attempt to hinder or abuse that right

by taking away Petitioner's helper, except in the

halls, and then in like circumstance allow Plaintiff-

Respondent layman “assistance” and layman “represent-

ative." $/

4/ The Pennsylvania Frame of Government of 1682.

"That, in all courts all persons of all per-

suasions may freely appear in their own way,

and according to their own manner, and there

personally plead their own cause themselves;

or, if unable, by their friends...."

5/ Hearing on Motions, Page 10 line 16, 17 and 18.

6/ Trial Proceedings, at Page 19 line 19, 20, 21, 22.

14.

The error of invidious discrimination is appar-

ent in this present action because Petitioner chose

to defend himself. The court evidently felt compell-

ed to punish him for that decision and the Appeals.

Court affirmed that error with an extremely short

amount of words. (Appendix A Page 2 and 3).

The District Court Record shows that Anderson

and Mason were not permitted to assist the Peti-

tioner -- not because they had "no training in law" 2/

but, rather, because they were "not members of the

Bar of this or any other Court" (R-24). Furthermore,

there was no hearing held by the District Court to

determine if they were or were not “learned in the

law" or, if they had had any training in the law".

Instead, assistance of Counsel was denied summarily.

Petitioner's Motion For Rehearing pointed out

to the Appeals Court that it was confusing "repre-

sentation", with "assistance" of counsel.

Petitioner did not ask for Anderson or Mason

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 present his

case, law and tradition may allocate to

7/ a determination made without the taking of

evidence.

—EEE ee

ee

a Sere

15.

the counsel the power to make binding deci-

sions of trial strategy in many cases.

(Citations omitted here).

Instead, Petitioner was only asking the Dist-

rict Court for the right to "plead and manage (his)

own cause () personally (with) the assistance of...

.-counsel". See Section 35, Judiciary Act of 1789

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

1654 (1970). 2/ :

As this Supreme Court further said in Faretta,

supra: (at___)

The Sixth Amendment does not provide mere-

ly that a defense shall be made'‘for the

accused; it grants to the accused personal-

ly the right to make his defense. It is

the accused, not counsel, who must be "in-

formed of the nature and cause of the ac-

cusation", who must be accorded"compulsory

process for obtaining witnesses in his

favor". Although not stated in the Amend-

ment in so many words, the right of self-

representation -- to make one's own de-

8/ 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, Sixth Amendment.

16.

fense personally -- is thus necessarily

implied by the structure oi the Amend-

ment. The right to defend is given direct-

ly 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

of Anderson and Mason -- to counsel him, “for it is

he (the Petitioner) who suffers the consequence if

the defense fails".

Petitioner further contends that by being de-

prived the active participation of his chosen “coun-

sel" he was deprived the right of making his own

defense from the Witness Stand - under Oath?

If he had taken the Witness Stand, there would

have been no one to object for him on cross-examina-

tion when the Prosecutor asked predictable self-in-

criminating questions for the purpose of prejudice

and conviction, whether admissible by the rules of

evidence or not.

While the Tenth Circuit asserts that "Counsel

refers to a person authorized to practice law”.

re ee, =

NS 2.

17.

The Sixth Circuit 2/

its circuit nor the Supreme Court has ever passed

judicially notes that neither

upon the precise question presented by Petitioner;

to-wit: Does the Sixth Amendment provide the unqual-

ified 10/ right to enjoy the assistance of counsel?

The Sixth Circuit goes on to state in U.S. v

Roger L. Whitesel that:

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-rep-

resentation, it employed language which

Suggests that there may well be a distinc-

tion between the term "counsel" as used in

the Sixth Amendment and the term "attorney-

at-law"

The colonists brought with them an appre-

ciation of the virtures of self-reliance

and a traditional distrust of lawyers.

When the Colonies were first settled, "the

lawyer was synonymous with the cringing

Attorneys-General or Solicitors-General of

9/ U.S. v Roger L. Whitesel, No. 75-1648 page 4

Sixth Circuit courts Opinion, "Nevertheless the

question posed by this appeal has never been passed

upon either by this Court or by the U.S Supreme

Court."

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

W..his right to be heard through his own counsel

is unqualified".

18. 19.

of the Crown and the arbitrary Justices of | own choosing

the King's Court, all bent on the conviction

' |

of those who opposed the King’s prerogatives, | WHEREFORE, PETITIONER REQUESTS THIS COURT TO

"

and twisting the law to secure convictions. | ISSUE A WRIT OF CERTIORARI TO THE UNITED STATES

This prejudice gained strength in the Col- COURT OF APPEALS FOR THE TENTH CIRCUIT.

onies where "“distruct of lawyers became an

institution". Several Colonies prohibited

pleading for hire in the 17th century. The

prejudice persisted into the 18th century

as "the lower classes came to identify law-

yers with the upper class." The years of

Revolution and Confederation saw an upsurge

of antilawyer sentiment, 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 Constitu-

tion was forged. Faretta v California, 422

U.S. 806, 826-27 (1975).(Footnotes omitted)

The Sixth Circuit ruled against Whitesel, pos-

sibly because unlike this case the court allowed

Whitesel to have a layman sit at counsel table with

him.

The denial of assistance to even sit at counsel

table was a denial of the right to enjoy the assist-

ance of counsel as set forth in the Sixth Amendment,

and the right to conduct one's own defense includes

the right to seek assistance from one of a Defendant's

20.

B.

DISCRIMINATION

WHETHER THE COURT CAN ALLOW RESPONDENT'S

LAYMAN REPRESENTATIVE, WHILE AT THE SAME

TIME DENYING PETITIONER'S LAYMAN REPRESENT-

ATIVE, WITHOUT DENYING PETITIONER EQUAL

PROTECTION, DUE PROCESS AND FREEDOM FROM

DISCRIMINATION.

Discrimination by the court and the Court

of Appeals tends to state that the judge in this

instant case had the authority to allow the

United States, as Plaintiff, the right to layman

representative and layman esstetanes. ehile

at the same time denying that same right to Peti-

tioner.

The opening statement by the prosecutor bears

this contention out:

1/ "present at counsel table with me is a

representative of the Government, Mr.

Ken Thomas. He will be assisting me

throughout the trial with the various

exhibits that we will offer into evidence.

Mr. Ken Thomas is a layman assistant and a

l/ Trial Transcript, Page 19 line 19, 20, 21, 22.

_

21.

layman representative.

There can be no doubt that the court carried

on discrimination 2/ against the Petitioner, and the

extent of discrimination constituted denial of due

process.

The fairness of procedure is due process 3/

and the court in no way was fair by treating Plain-

tiff different than Petitioner, and denying Peti-

tioner his chosen assistanct even to sit at the

table with him.

WHEREFORE, AS A CONSEQUENCE OF THE COURT'S

DENIAL OF DUE PROCESS AND THE SANCTIONING OF THE

ERROR BY THE TENTH CIRCUIT COURT, THIS COURT SHOULD

EXERCISE ITS POWER OF SUPERVISION AND GRANT THE

WRIT OF CERTIORARI.

2/ ="“Discrimination is the act of treating different-

ly two persons or things under like circumstances”.

Nat'l. Life Ins. Co. v U.S., 277 US 508, 630.

3/ “Fairness of procedure is ‘due process’ in the

primary sense". Justice Frankfurter - Joint Anti-

Fascist Ref. Comm. v McGrath, 341 U.S. 123, 161.

22.

Cc.

GOOD FAITH CLAIM OF PRIVILEGE

WHETHER A GOOD FAITH CLAIM OF ONE'S RIGHTS

CAN BE CONVERTED INTO A CRIME, AND CAN ONE

BE PENALIZED FOR EXERCISING HIS RIGHTS UNDER

THE CONSTITUTION.

Petitioner herein asserts that a good faith

claim of privilege, even if erroneous, cannot be

a basis for his conviction under 26 USC 7203; and

the Tenth Circuit Court of Appeals is erroneously

reading Garner LY and Sullivan 2/ and are overrul-

ing both with their application of Porth 2/

Petitioner filed his 1040 Return for the year

1974, and relying on this Court and various other

court cases he claimed his rights as to specific

questions on the form.

It seems entirely lost upon iar too many courts

that the 'Fifth' is for the innocent, as well as

the guilty.

l/ Garner v U.S., 424 U. S. 648 (1976)

2/ + Umnited States v Sullivan, 274 U.S. 259 (1927)

3/ United States v Porth, 462 F 2d 519 (10th Cir.

1970)

a

23.

"Recent re-examination of the history and

meaning of the Fifth Amendment has empha-

sized anew that one of the basic functions

of the privilege is to protect innocent

men. Too many, even those who should be

advised, view this privilege as a shelter

for wrongdoers. They too readily assume

that those who invoke it are either guilty

of crime or commit perjury in claiming the

privilege. The privilege serves to protect

the innocent who might otherwise be ensnar-

ed in ambiguous circumstances."" Gruenwald

v U.S., (1957) 353 U.S. 391, 1 L Ed. 2d 931,

952, 77 S. Ct. 963, 982, 62 ALR 2d 1344.

In 1964, this Court spoke of the right to be free

from self-incrimination as, “an important advance in

the development of our liberty" and that:

"...our sense of fair play which dictates

‘a fair state-individual balance, by re-

quiring the government in its contest with

the individual to sholder the entire load’:

our respect for the inviolability of the

human personality and of the right of each

individual ‘to a private enclave where he

may lead a private life’ ... and our real-

ization that the privilege, while some-

times ' a shelter t« the guilty’ is often

"a protection to the innocent.'" Murphy v

24.

Waterfront Com. of N.Y. Harbor, (1964) 378

U.S. 52, 12 L. Ed. 2d 678, 681-82, 84 S.

Ct. 1594.

And this Court has held that:

"This 'willful' qualification fully pro-

tects one whose refusal is made in good

faith and upon grounds which entitle him

to the judgment of the court BEFORE obedi-

ence is compelled." Federal Power Comm. v

Metropolitan Edison Co., 304 U.S. 375.

This Court has ruled in the Garner case (Garner v

U.S., 424 U.S., 424 U.S. 648) that:

"The information revealed in the prepara-

tion and filing of an income tax return

is, for the purpose of Fifth Amendment

analysis, the testimony of a 'witness'"

Garner, supra, (1976).

The Garner Court then went on to say that:

"... a valid claim of privilege cannot be

the basis for a Section 7203 conviction,.."

Petitioner believes that he did make a valid claim

of his Fifth Amendment privilege and that therefore,

his conviction should be reversed. He cannot be

forced to be a 'witness' against himself, and then

prosecuted when he takes the Fifth Amendment.

All Petitioner tried to do was to exercise his

constitutional rights as best he knew how, through

attachments submitted in support of his 1040 Return.

__— —~2~5y—

25.

The attempt is clear and should be honored. To an-

swer his attempt with arrest and prosecution is in

itself a violation of the law of the land, on which

Petitione relied in his attachments, and which all

agents of government are sworn to uphold.

"The claim and exercise of a constitutional

right cannot be converted into a crime."

Miller v U.S., 230 F. 2d 946 (1973).

Even persons suspected of subversion and of endanger-

ing the national security have their constitutional

rights honored. U.S. v U.S. District Court, (1972)

407 U.S. 297. Pettitioner is entitled to equal pro-

tection of his constitutional rights.

The Ninth Circuit declared in 1973 that:

" ... there can be no sanction or penalty

imposed upon one because of his exercise

of constitutional right.”

Considering that said tax ‘return’ is to be

signed under penalty of perjury, Petitioner had no

alternative to filing as he did. The slightest

error, even if made inadvertently, could be viewed

as fraud, if the government chose to view it that

way, making any filing, in the best of faith, risky

for people who have political and economic ideas

which may vary from the ‘party line’, i.e. govern-

ment policy.

26.

The Tenth Circuit Court of Appeals admits that

a "valid claim of privilege could be asserted as to

specific items of information requested" 4/ and they

go on to say that, "If such claim were valid, the

taxpayer could not be prosecuted for violating 26

USC Section 7203."

Nowhere inthe record did the courts rule that

Petitioner's claim was not valid, and even if held

invalid, a good faith assertion of the privilege is

5/

a defense to a §7203 prosectuion >.

Mr. Justice Marshall and Mr. Justice Brennan

both concurring in Garner with the other six judges

stated:

"This case ultimately turns on a simple

question - whether the possibility of

being prosecuted under 26 USC §7203 for

failure to make a return compels a tax-

pers to make incriminating disclosures

rather then claim the privilege against

self-incrimination on his return. In

. discussing this question, the court notes

that only a "willfull" failure to make a

return is punishable under §7203 and that"

4/ Appendix A Page 7 citing Garner v U. S. supra.

5/ Garner v United States US (1976) U.S.T.C. 1301,

44 USLW 4326 76-1

27.

a defendant could not properly be con-

victed for an erroneous claim of privilege

asserted in good faith.” ante at 15 n 18.

Since good faith erroneous assertion of the

privilege does not expose a taxpayer to

criminal liability, I would hold that the

threat of prosecution does not compel in-

criminating disclosures in violation of

the Fifth Amendment. The protection

accorded a good-faith assertion of the

privilege effectively preserves the tax-

payer's FREEDOM to choose between making

incriminating disclosures and claiming

his Fifth Amendment privilege, and I

would affirm the judgement of the Court

of Appeals for that reason’ (emphasis add-

ed).

Petitioner had attached to the motion to dis-

miss an affidavit asserting that the "questions

objected to on the form if answered could incriminate

and that "at all times Defendant was acting in good

faith". The government failed to file any opposing

affidavits and the failure to do so proved beyond

any reasonable doubt that at that time no crime had

been committed.

28.

VII.

CONCLUSION

Petitioner hereby invokes Rule 19, Rules of

the Supreme Court, in order to preserve those rights

which the Founding Fathers fought and died for, and

established for us by inserting them in our Constitu-

tion for all to know.

Petitioner asks the Court to take judicial

notice that The Bill of Rights only declares those

rights which Petitioner had before government was

instituted, and He who gave those rights can be

the only one who can take them away. We have creat-

ed a government for the sole purpose of preserving

those rights, and the Tenth Circuit has, as Peti-

tioner has shown:

l. Rendered a decision contrary to other

Circuits such as the Sixth Circuit.

2. Has decided an important question of

Federal Law such as -- that Petitioner

has no right to layman assistance or lay-

man counsel or layman co-counsel when

defending against a criminal action and

this question has not been, but should

be settled hb, this Court.

29.

3. Has decided that the word “willful" in

conflict to rulings by this Court.

4. Has attempted to overturn Sullivan and

Garner by using their erroneous decision

in Porth.

5. Has departed from the elementary standards

of due process to allow obvious discrimina-

tion by the lower court.

6. Has attempted to narrow the Fifth Amend-

ment to protect only criminals -- by de-

claring that the Petitioner needed to

show why disclosures would incriminate

while ignoring the fact that the record

reflects that Petitioner did make a show-

ing of how disclosures would incr ‘minate.

7. Has ignored the showing of good faith,

rendering Petitioner's trial a farse and

a tool of the lower court to help the

Interual Revenue Service in an attempt to

intimidate the populace in order to get

them to waive their rights.

American Justice cannot long tolerate one rule

of law to govern the prosecution and a different

rule of law to govern the defense. Decency alone

30.

requires that the defense should have the same

treatment as the prosecution.

The Petitioner in this case chose to defend

himself, and the court took it upon itself to make

it as hard as possible for the Petitioner. It is

hard enough for a pro se litigant to weave his way

through a maze of court rules, but when the judge

denies the defense a layman to sit at the table to

assist him in his defense the court becomes the

unfair umpire and justice falters and fades away.

Petitioner requests the Court to issue a Writ

of Certiorari and review the error in the courts

below -- the effect of which has been to deprive

Petitioner and others who may choose to defend

themseives of their inalienable right to defend and

conduct their own defense through and by the

assistance of whom they may choose subject of course

to the orderly conduct required by the Courts.

31.

VIII.

PRAYER

WHEREFORE, PETITIONER, IRWIN, PRAYS THAT THE

SUPREME COURT WILL ISSUE A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE TENTH

crncurr. Delp tobe

DONALD C. IRWI

Petitioner pro se

Star Route 2, Box 169

Green River, Wyoming 82935

Dated: September 30, 1977.

CERTIFICATE OF SERVICE

I certify that I have this 30th day of Sept-

ember, 1977, mailed, postage prepaid, three (3)

copies of this petition to the Solicitor General,

Department of Justice, Washington, D. C. 20530.

Signed Lhrabl c fi.

APPENDIX "A"

NOT FOR ROUTINE PUBLICATION mi, ; Donald C. Irwin appeals his conviction by a jury

UNITED STATES COURT OF APPEALS ms in the United States District Court for the District of

TENTH CIRCUIT

Wyoming for willful failure to make an income tax return for

the calendar year 1974, in violation of 26 U.S.C. § 7203.

The facts are brief and are not in dispute. The

UNITED STATES OF AMERICA, government presented evidence to establish that Irwin had

Plaintiff-Appellee, income during 1974 in excess of $22,000. Irwin's 1974 income

v. No. 76-1933 tax return was introduced into evidence. It contained

DONALD C. IRWIN, Irwin's name, address, and an entry indicating Irwin was

Defendant-Appellant. ) entitled to a refund of $4,694. The return otherwise showed

only Irwin's constitutional objections to the questions asked.

In response to all questions dealing with Irwin's income for

1974 was the entry “Object-Self-inérimination”. We will set

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING forth additional facts as they are pertinent to our discussion

(D.C. No. 76-64-K)

of the issues Irwin raises on appeal.

The first issue Irwin raises concerns his request for

Submitted on the briefs. . representation by lay counsel. Irwin represented himself at

trial as he does on this appeal. He argues that the trial judge's

Donald C. Irwin, Defendant-Appellant, Green River, Wyoming, denial of his request violated his Sixth Amendment right to

pro se.

Toshiro Suyematsu, United States Attorney; Jerome F. Statkus, counsel. We have previously addressed such a contention and

Assistant United States Attorney; Frederic C. Reed, Assis- ruin amendmen ovide the right

tant United States Attorney, Cheyenne, Wyoming, for Plaintiff- dete ed that the Sixth t does not pr e@ righ

Appellee. to representation by a lay person. “Counsel” refers to a

Before HILL, SETH, and McWILLIAMS, United States Circuit person authorized to practice law. United States v. Afflerbach,

Judges. 547 F.2d 522 (10th Cir. 1976); United States v. Grismore,

<2-

HILL, Circuit Judge.

546 F.2d 844 (10th Cir. 1976). The trial court did not err

in denying Irwin representation at trial by a layman.

Irwin next argues that the trial judge erred in

failing to recuse himself on the basis of Irwin's affidavit

of prejudice. Section 144, Title 28 U.S.C., provides that a

trial judge against whom a timely and sufficient affidavit is

filed in good faith by a party demonstrating bias or prejudice

against him or in favor of his adversary shall not hear the

proceeding. The bias charged must be of a personal nature

and must be such as would likely result in a decision on some

basis other than what the judge learned from his participa-

tion in the case. United States v. Grinnell Corp., 384 U.S.

563 (1966); Davis v. Cities Service Oil Co., 420 F.2d 1278

(10th Cir. 1970).

Irwin's affidavit of bias stated that he had pre-

viously filed an action for declaratory judgment on the

question of whether he could refuse to answer questions on

his 1974 income tax return on the basis of his Fifth Amendment

privilege. That action came on for hearing before the same

trial judge and was resolved against Irwin.

The fact that a judge has previously rendered a

decision against a party is not sufficient to show prejudice.

United Staces v. Goeltz, 513 F.2d 193 (10th Cir. 1975), cert.

denied, 423 U.S. 830; Knoll v. Socony Mobil Oil Co., 369 F.2d

425 (lOth Cir. 1966), cert. denied, 386 U.S. 977. Further, it

o9-

appears from the record that Irwin's declaratory judgment action

was resolved not on the merits but on the threshold considera-

tion that he failed to demonstrate the existence of a justi-

ciable controversy. Irwin's affidavit fell short of tie

required showing of bias, and the trial judge committed no

error in failing to withdraw from the proceeding.

Irwin sought to challenge the jury array pursuant

to 28 U.S.C. § 1867(a). On August 2, 1976, he moved to

compel disclosure of the jury selection materials and to

obtain a continuance pending his examination of the materials.

His motion for disclosure of the documents was granted; his

motion for continuance was denied, and the trial proceeded

August 3. He seeks reversal for the trial court's refusal to

grant the requested continuance. His argument is that he was

effectively denied an opportunity to examine the jury selec-

tion materials and prepare his motion for stay or dismissal

of the information.

Irwin must make a clear showing that the trial

court's refusal to grant the continuance constituted an abuse

of discretion and resulted in manifest injustice in order to

obtain a reversal on that ground. United States v. Hill,

526 F.2d 1019 (10th Cir. 1975), cert. denied, 425 U.S. 940.

We do not believe he has made such a showing. At best, had

the continuance been granted, Irwin could have filed his

abe

motion. His ground for challenge in the district court as

well as on appeal is that the use of voter registration lists

as a source for prospective jurors systematically excludes

large segments 2f the populace, in derogation of the policy

of the Jury Selection and Service Act of 1968, 28 U.S.C.

§ 1861 et seq. Although Irwin did not file a proper motion

challenging the jury array, the trial judge considered his

contention regarding the use of voter registration lists and

correctly rejected it. United States v. Grismore, supra;

United States v. Smaldone, 485 F.2d 1333 (10th Cir. 1973),

cert. denied, 416 U.S. 936. We must assume Irwin has now

had an ample opportunity to examine the jury selection material.

He cites no additional ground upon which to challenge the jury.

He cannot have been prejudiced by the court's refusal to grant

his continuance.

Irwin next argues that the trial judge erred in

informing the jurors, by means of a pamphlet regularly mailed

to prospective jurors before trial and also by jury instructions,

that they were to decide the factual questions on the evidence

presented but were to apply the law as the judge explained it

to them. He contends the jurors should be free to decide the

pertinent questions of law as well. His contention is simply

contrary to the law. United States v. Grismore, supra; Tyler

v. Dowell, Inc. 274 F.2d 890 (10th Cir. 1960), cert. denied

o$e

363 U.S. 812; Jones v. United States, 251 F.2d 288 (10th Cir.

1958), cert. denied, 356 U.S. 919.

Irwin argues that he committed no crime in filing

the 1974 tax return as he did, and therefore the judge improperly

denied his motion to dismiss. Irwin's argument is that he is

protected by the Fifth Amendment from disclosing the information

requested and may not be subjected to criminal prosecution

for the exercise of that right. Irwin places primary reliance

on Garner v. United States, 424 U.S. 648 (1976), in which the

Court held that a claim of privilege, if valid, could be made

as to specific items of information requested on an income tax

return. Garner dealt with a nontax prosecution for violation

of federal gambling laws. The government sought to introduce

the defendant's income tax return on which he listed his occu-

pation as a gambler. Irwin misreads @arrer to stand for the

proposition that no information need be supplied on a tax

return. A valid claim of privilege must be based upon a real

possibility that submitting answers will subject the taxpayer

to criminal prosecution. Irwin has made no showing which

would approach justifying his claim of privilege in not

supplying any information upon which the IRS can determine

his tax liability.

The requirement that an income tax return be filed

does not violate the Fifth Amendment because the information

we

is requested in a non-accusatorial setting. Pauldino v.

United States, 500 F.2d 1369 (10th Cir. 1974); United States

v. Smith, 484 F.2d 8 (10th Cir. 1973), cert. denied, 415

U.S. 978. It is possible that a valid claim of privilege

could be asserted as to specific items of information requested.

Garner v. United States, supra. If such claim were valid,

the taxpayer could not be prosecuted for violating 26 U.S.C.

§ 7203. However, it is well established that the Fifth

Amendment cannot be stretched so far as to absolve a taxpayer's

duty to file a return. United States v. Sullivan, 274 U.S.

259 (1927). Irwin's return, containing no information upon

which his tax liability could be determined, constituted no

return at all. Umited States v. Porth, 426 F.2d 519 (10th

Cir. 1970), cert. denied, 400 U.S. 824. We find no merit

in the contention that the present prosecution violates

Irwin's privilege against self-incrimination. California v.

Byers, 402 U.S. 424 (1971); Umited States v. Sullivan, supra;

United States v. MacLeod, 436 F.2d 947 (8th Cir. 1971), cert.

denied, 402 U.S. 907; Umited States v. Porth, supra.

Irwin's final contentions concern comments made by

the trial judge in ruling on evidence. We have examined his

contentions, and we find them to be without merit.

AFFIRMED.

>

APPENDIX "B"

JULY TERM- September 6, 1977

Before The Honorable David T. Lewis, Chief Judge,

The Honorable Delmas C. Hill, Senior Circuit Judge,

The Honorable Oliver Seth, Circuit Judge,

The Honorable William J. Holloway, Jr., Circuit Judge,

The Honorable Robert H. McWilliams, Circuit Judge,

The Monorable James E. Barrett, Circuit Judge,

The Honorable Wiliam E. Doyle, Circit Judge

UNITED STATES OF AMERICA, )

Plaintiff-Appellee, :

vs. : No. 76-1933

DONALD C. IRWIN,

A oO

This matter comes on for consideration of the petition

for rehearing and suggestion for rehearing en banc filed by

appellant in the captioned cause.

Upon consideration whereof, the petition for rehearing

is denied by Circuit Judges Hill, Seth and McWilliams to whom

the case was argued and submitted.

The petition for rehearing having been denied by the

original panel to whm the case was argued and submitted and

no member of the panel nor judge in regular active service

on the Court having requested that the Court be polled on

rehearing en banc, Rule 35, Federal Rules of Appellate

Procedure, the suggestion for rehearing enbanc is denied.

Howard K. Phillips

Clerk

APPENDIX “C*

1,

APPLICABLE LAW, ETC.

UNITED STATES CONSTITUTION:

AMENDMENT I ..ccccccccccccccccccccecccces 2

Congress shall pass no law respect~-

ing...the right of the people peace-

ably to assemble, and to petition the

government for a redress of grievances.

AMENDMENT Vi .cccccccccccccccccccccccccces 23

...-nor shall any person...be compel-

led in any criminal case to be a

witness against himself, nor be de-

prived of life, liberty, or property,

without due process of law;..

ADUEMIMEETT, Wc ccccccccccccccccccecesesecs 8,12

In all criminal prosecutions the

accused shall enjoy the right to a

.-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 .......ese0e- wre TETTTTT TTT 2

The enumeration in the onstitution,

of certain rights, « all not be con-

strued to deny or disparage others

retained by the people.

THE BILL OF RIGHTS ...... eeccccccces cocoe &2

STATUTE PROVISIONS AS FOUND IN THE U. S. CODE,

WE Ue ok seen annceds Pewee fae 5,22

28 USC 1254 .nccccccccccccvccccccccecs 3

28 USC 1651 .....00e- \eeeee cccccccccece 3

26 USC 3656 .nccces coecscces’ sodeddoce ° 15

and Judiciary Act of 1789,

(Chap. 20, §35, 1 Stat. 92)

28 USC Rules of the Supreme Court ..... 7

THE PENNSYLVANIA FRAME OF GOVERNMENT OF 1682: 13

That, in all courts all persons of

all persuasions may freely appear

in their own way, and according to

their own manner, and there person-

ally plead their own cause themselves:

or, if unable, by their friends...

RULES OF THE SUPREME COURT ..........ceseeee: 28

RULE 19

TABLE OF CASES:

Chandler v Fretag, 348 US 3 ............ 17

Faretta v California, supra. ..... 8,14.15.18

43 LW 5004 (at__—i+»)

422 US 806, 826-27 (1975)

Federal Power Comm. v Metropolitan

Be Gig cecbcncdcoccscceceuceetecece 24

304 US 375

Garner v U.S., No. 74-100 (1976).. 6.22,24,26

424 US 648 (1976); USTC 1301,

44 USLW 4326 76-1

Grose © BsBsn GHEE occcescecécccees 23

353 US 391, 1 L Ed. 2d. 931. 952,

77 S. Ct. 963, 982, 62 ALR 2d 1344.

Joint Anit Fascist Ref. Comm. v McGrath.. 21

(Justice Frankfurter) 341 U.S. 123,

161.

TABLE OF CASES Continued;

Miller v U.S., 230 F 2d 946 (1973)....... 25

Murphy v Waterfront Com. of N.Y. Harbor.23,24

(1964) 378 US 52, 12 L Ed 2d 678,

681-82, 84 S. Ct. 1594

Natl. Life Ins. Co. v U.S., ....cceeeee soe SS

277 US 508, 630

O.8. GO POGEMs ccccvcsceceescteoctoecsceos 22

462 F 2d 519 (10th Cir. 1970)

BoB. OG GUREBUEMs coccccctocecceseeseeete o ae

274 US 259 (1927)

U.S. v U.S. District Court, ............ 25

(1972) 407 US 297

U.S. v Roger L. Whitesel, ...........-.. 17

No. 75-1648, p 4