Petition — Bomher v. United States

IN THE SUPREME COURT OF THE UIMICRAR AUBAXTRE CLERK

October Term, 1578

No. 78-1678

GEORGE A. BOMHER, Petitioner Pro Se

versus

UNITED STATES OF AMERICA, Respondent

PETITION FOR WRIT OF CERTIORARI

TO

THE UNITED STATES COURT OF APPEALS

FOR

THE THIRD CIRCUIT

George A. Bomher

P. QO. Box 186

Glenside, PA 19038

Tele: 215-887-2576

May, 1979. Petitioner Pro Se

BOMHER v. U.S.; Petition for Writ of Certiorari

TABLE OF CONTENTS

Item

Table of Authorities

Opinion/ Judgments Below

Jurisdiction

Questions Presented

l.

2.

3.

4.

Constitutional and Statutory

Provisions Involved

Statement of the Case

Reasons for Granting the Writ

Preface

1.

Conclusion

13.

17.

18.

19.

21.

22.

Appendices; A, B, and C (see Page A-1) A-1-A-16.

TABLE OF AUTHORITIES

Cases

BOZZA v. U.S. (1947) 330 US 160

DAVIS v. U.S., 160 US 469

THOMPSON v. LOUISVILLE (1960) 362 US 199

U.S. ex rel TOTH v. QUARLES

(1955) 350 US 11

Page

15.

22.

15.

16.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1978

No.

GEORGE A. BOMHER, Petitioner Pro Se

versus

UNITED STATES OF AMERICA, Respondent

PETITION FOR WRIT OF CERTIORARI

TO

THE UNITED STATES COURT OF APPEALS

FOR

THE THIRD CIRCUIT

To the Honorable Chief Justice and Associate

Justices of the Supreme Court of the United States:

George A. Bomher, Petitioner herein, prays

that this Court will issue a Writ of Certiorari

to the U.S. Court of Appeals for the Third Cir-

cuit to review their Judgment entered in this

case on January 23, 1979.

OPINIONS/ JUDGMENTS BELOW

The Opinion/Judgment of the U.S. Court of Ap-

peals for the Third Circuit (USCA3) sought to be

reviewed is, to the best of Petitioner's know-

ledge, unreported and is printed in Appendix Al,

infra. The Findings of Fact, Conclusions of Law

and Order of the U.S. District Court for the East-

ern District of Pennsylvania (USDC ED PA) denying

Petitioner's Motions for Judgment of Acquittal

and for New Trial is printed in Appendix A2, in-

fra. Timely Petition for Reconsideration of Post-

trial Motions was denied. The Order denying Pe-

tition for Reconsideration is printed in Append-

ix A3, infra. The Judgment of USDC ED PA is

printed in Appendix A4, infra.

_exa_

y

JURISDICTION

The Opinion/Judgment of USCA3 (Appendix Al,

infra) was entered on January 23, 1979. A timely

Petition for Rehearing was denied on March 7,

1979. The Order denying Petition for Rehearing

is printed in Appendix Bl, infra. Stay of Man-

date was granted by USCA3 on March 27, 1979. The

Order granting Stay of Mandate is printed in Ap-

pendix B2, infra.

On April 4, 1979, Mr. Justice Brennan entered

an Order extending the time for the filing of

this Petition to and including May 6, 1979. Mr.

Justice Brennan's Order is printed in Appendix

B3, infra.

The jurisdiction of this Court is invoked

pursuant to 28 USC Sec. 1254(1).

QUESTIONS PRESENTED

1. Whether it is a denial of procedural due

process of law for a defendant in a criminal case

to be denied timely-requested particulars essen-

tial to preparing a proper defense and without

which defendant was found "guilty" having been

unable to present any defense at all.

2. Whether it is a denial of procedural due

process of law for a defendant in a criminal case

to be caused to suffer trial and "conviction"

based entirely on "evidence" founded upon a pre-

sumption which defendant was precluded from re-

butting by denial of timely-requested particulars.

3. Whether it is a denial of procedural due

process of law for a defendant to be caused to

suffer "conviction" in a criminal case in which

the government was not held to its burden of

proof, i.e., its burden of proving beyond reason-

able doubt each essential element of the offense

charged in the Indictment and each essential sub-

element as would necessarily be included within

each essential element.

2.

4. Whether it is a denial of procedural due

process of law for a defendant to be caused to

suffer "conviction" in a criminal case in which

the government failed to establish the "

delicti.” pitas

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Following are the constitutional and statu-

tory provisions involved herein, the applicable

text of each being printed in Appendix C, infra:

U.S. Constitution, Article I, Section 8.

U. S. Constitution, Article VI.

U. S. Constitution, Amendment Five.

U.S. Constitution, Amendment Six.

U. S. Constitution, Amendment Nine.

Title 26, United States Code, Section 6012.

Title 26, United States Code, Section 7203.

Statute I, Chapter XVI.

Public Law 89-81.

STATEMENT OF THE CASE

Petitioner moved from Chula Vista, California

to Glenside, Pennsylvania, in September of 1976. ;

On December 21, 1976, he was indicted by the

federal Grand Jury at Los Angeles, California

charging four counts of willful failure to file

income tax returns for 1970, 1971, 1972, and 1973

in violation of 26 USC Section 7203. ;

The jurisdiction of the court of first in-

stance, the U.S. District Court for the Central

District of California (USDC CD CA), was most

probably assumed pursuant to 18 USC Section 3231

although Petitioner is unable to find in his re-

cords of this case any specific invocation of

jurisdiction by the government or the Court.

Petitioner was arraigned in USDC CD CA where

his Motion to Transfer Case from District was

granted whereupon this case was transferred to

the U.S. District Court for the Eastern District

of Pennsylvania (USDC ED PA).

EEO OOOO ee

The four-count Indictment charged that Peti-

tioner in each of four years “had and received a

gross income of" a specified number of "$'s" and

"that by reason of such income he was required by

law . . . to make an income tax return... ."

To determine specifically "what" those "$'s"

were which the government had charged him with

having “had and received" in sufficient number so

as to be “required by law to make an income tax

return," Petitioner timely filed a pre-trial Mo-

tion for Bill of Particulars in which, among

other things, he asked for the precise definition

of the symbol, the dollar sign, as used by the

government in the Indictment and where such pre-

cise definition of that symbol (and the word it

represents) is to be found in the United States

Code. Petitioner stated that the definition of

the "$" was needed to prepare to defend; that it

was material to such preparation; and that he did

not know "what" it is he was alleged to have "had

and received." The government opposed granting

Petitioner the definition of the "$" and the

trial Court, sustaining the government's position,

denied the motion.

It is worthy of this Court's notice that, from

this point forward, the outcome of the proceed-

ings in the trial Court and in the Court of Ap-

peals was based upon the presumption that:

1. A valid Congressional definition of

the "S$" actually existed for the years in ques-

tion; and

2. The Congressionally-defined "$" was

actually made into a material object capable of

being "had and received;" and

3. Such material objects were actually

circulated throughout the United States in large

enough quantity during the years in question so

that everyone could "have and receive" those

"$'s" they had earned and to which they were en-

titled.

It is also worthy of this Court's notice that,

because he was denied the precise definition of

the "S$" as used by the government in the Indict-

ment, Petitioner was precluded from rebutting the

presumption relied upon by his adversary through-

out these proceedings.

Without the precise definition of the "$'s"

he was alleged to have "had and received" in suf-

ficient number to be "required by law to make an

income tax return," Petitioner was unable to pre-

pare any defense.

Although he had stipulated that certain docu-

ments were the business records they were purport-

ed to be, Petitioner objected at trial to the ad-

mission of all documentary "evidence" on the

grounds that none of it showed with any degree of

certainty whatsoever that he had "had and receiv-

ed" any "$'s" at all and was therefore irrelevant

and inadmissible. All of his objections were

overruled.

The government introduced four witnesses, one

of whom was an IRS Revenue Agent, their "expert

witness."" The testimony of two of these witness-

es showed that Petitioner had earned and was en-

titled to a given number of "$'s" during each of

the years in question. None of the witnesses,

however, could testify of his own personal know-

ledge that Petitioner had ever "had and received"

any of those "$'s" he had earned and to which he

was entitled. Furthermore, the government intro-

duced NO affidavit, deposition, or investigative

report of any other witness having personal know-

ledge of, or of having personally witnessed, the

receipt by Petitioner of the given number of

"$'s" alleged in the Indictment (or of any other

number of "$'s").

At the close of the government's case-in-

chief Petitioner moved for a judgment of acquit-

tal on the grounds that the testimonial and docu-

mentary "evidence" presented by the government

was insufficient to support the charges as alleg-

ed in the Indictment but, after some discussion,

this motion was denied.

Without any defense and with no evidence to

present, Petitioner then closed his case and a-

gain moved for a judgment of acquittal on the

grounds that the government failed to carry

its burden of proof with respect to the charges

as alleged in the Indictment. This motion, too,

was denied.

On April 28, 1977, the case was submitted to

the Jury. At no time before, during, or after

the trial did the government provide the lawful

definition of the "$" to the Petitioner, the

Judge, or the Jury. The Jury, therefore, had no

certain knowledge of "what" it was that Petition-

er was alleged to have "had and received" in suf-

ficient number to be "required by law to make an

income tax return" and the admitted "evidence"

alone did not provide the full truth for their

consideration. The Jury's verdict was "Guilty"

as to each count.

Post-trial Renewal of Motion for Judgment of

Acquittal and Motion for New Trial were each

timely filed. Memoranda in support of post-trial

motions were timely filed and oral argument on

the motions was held on October 21, 1977, after

which the motions were taken under advisement.

The issue raised in Renewal of Motion for

Judgment of Acquittal was:

"The evidence was insufficient to sustain

a conviction."

The issues raised in Motion for New Trial were:

1. "The Court erred in denying Defend-

ant's Motion for Bill of Particulars."

2. "The Court erred in denying Defend-

ant's Motion to Suppress Evidence."

3. "The Court erred in admitting into

evidence the government's exhibits all of which

were inadmissible."

4. "The Court erred in denying/overrul-

ing Defendant's repeated objections as to the ad-

missibility of the government's exhibits."

5. "The verdict is contrary to the

weight of the evidence and is not supported by

the evidence."

6. "The verdict is contrary to law."

On June 2, 1978, following an evidentiary

hearing on the issue of suppression of evidence

6.

(one of seven issues raised in post-trial motions),

the trial Court issued its Findings of Fact, Con-

clusions of Law (addressed only to the suppres-

sion of evidence issue) and Order (Appendix A2,

infra) denying Petitioner's post-trial motions.

Petitioner then petitioned the trial Court for

reconsideration of post-trial motions asking for

Findings of Fact and Conclusions of Law re each

of the other issues. His petition was denied

(Appendix A3, infra).

Sentencing took place on June 26, 1978. Al-

though Petitioner had been free on his own recog-

nizance and had in good faith timely appeared and

attended every scheduled hearing before the trial

Court during the preceding eighteen months and

although the trial Judge had no reason to believe

that he would flee or pose a danger to any other

person or to the community Petitioner was never-

theless immediately incarcerated for a period of

thirty-one days (during which time he was unable

to proceed with perfecting his appeal because of

lack of necessary federal legal reference mater-

ials at Berks County Prison, Reading, PA) before

being released on July 26, 1978, on his Motion

for Stay of Execution of Sentence (of imprison-

ment) Pending Appeal.

Petitioner's Notice of Appeal was timely fil-

ed and the fine imposed per the Judgment (Append-

ix A4, infra) was timely paid.

Petitioner's Brief for Appellant was timely

filed in USCA3. The issues raised in this Brief

were:

1. May certain particulars which were

timely requested and which were essential to pro-

perly prepare a fair defense against the charges

stated in the Indictment be denied the Defendant?

2. May evidence, over Defendant's objec-

tions, be admitted which, in the absence of cert-

ain requested essential particulars, was adverse-

ly prejudicial to the defense?

3. May the trial Court deny Defendant's

Motion for Judgment of Acquittal where, in the

absence of certain requested essential particu-

lars, the evidence was insufficient to sustain a

conviction?

4. May the trial Court deny Defendant's

Motion for New Trial where the previous denial of

his request for certain essential particulars es-

tablished reasonable probability that a miscar-

riage of justice had taken place?

The gist of Petitioner's contentions re these

issues can be stated briefly as follows:

1. Petitioner cannot be expected to pro-

perly prepare a fair defense against the charges

when he is denied the precise lawful definition

of the material object he is alleged to have "had

and received" in sufficient number to be "requir-

ed by law" to perform a certain act.

2. Absent the precise lawful definition

of the material object Petitioner was alleged to

have "had and received" in sufficient number to

be "required by law" to perform a certain act and

without any showing by the government that such

lawfully-defined material objects actually exist,

the admitted "evidence" alone was adversely pre-

judicial to the defense by making it appear to

the Jury, without any basis in fact, that Peti-

tioner should have done what the law required.

3. Without the precise lawful definition

of the material object which the Indictment al-

leged Petitioner had "had and received" in suf-

ficient number to be “required by law" to make an

income tax return and without any proof that such

material objects actually exist, the "evidence"

alone was insufficient to sustain a conviction

because the government failed to prove at all

that Petitioner had "had and received" so much as

one of those material objects and thereby failed

to prove beyond reasonable doubt the first essen-

tial element of the offense charged, i.e., that

he was a person required by law to make an income

tax return and as a consequence of the govern-

ment's failure to carry its burden of proof the

trial Court should have granted Petitioner's mo-

tion for judgment of acquittal.

4. The denial by the trial Court of Pe-

titioner's request for certain essential particu-

lars precluded him from properly preparing a fair

defense and without those certain essential parti-

culars being made known the admitted "evidence"

alone did not provide the full truth for the Jur-

y's consideration thereby depriving Petitioner of

the fair trial required by due process of law and

establishing the reasonable probability that a

miscarriage of justice had taken place which the

trial Court should have corrected by granting Pe-

titioner's motion for new trial.

The government filed their Brief for Appellee

in which they answered Petitioner's issues and

contentions. The government's contentions can be

briefly stated thusly:

1. The dollar sign and term "$" refer to the

basic monetary unit of the United States and is

the established and generally understood measure

of value; that the meaning of the term "S$" is

clear and unambiguous; and that defendant's ap-

parent position that the plaintiff must, in every

case in which money, income, or value of property

is involved, provide some sort of detailed defi-

nition of the term "$" to every defendant's satis-

faction would turn all tax litigation and most _

other litigation into absurd exercises in seman-

tics.

a. Defendant had all the information he

needed to prepare to defend; that he did not show

what aid his requested definition could have pro-

vided him at trial or any way in which its denial

would be prejudicial to him; and that, therefore,

his motion for bill of particulars was properly

denied.

b. Evidence admitted over defendant's

objections was properly admitted because it show-

ed that he had earned and was entitled to a cer-

tain number of "$'s" and therefore logically tend-

ed to point to a conclusion that he had received

sufficient "$'s" to be required by law to file an

income tax return; that much of the disputed evi-

dence was also relevant to the element of will-

fullness, tending to show that he knew of his

duty to file income tax returns; and that, even

without the definition of the "$" being made

known, the jury could clearly understand what de-

fendant had received, and determine that receipt

of "$'s" constituted income.

c. Even though the government did not

define the "$," they proved that defendant had

received sufficient "$'s" to require him to make

an income tax return; that it is clear, without

any need of pro:“*, that a "S$" is the basic mone-

tary unit of the United States; that there was no

more need to supply a definition for "$" to com-

plete the proof in this case than there was need

to define any other word used in the course of

the evidence; and that, therefore, the evidence

was sufficient.

d. Defendant's contention that denial of

his pre-trial motion for bill of particulars cre-

ated a “miscarriage of justice" at the trial con-

cerns the exact same denial of his motion for a

bill of particulars which is the subject of his

first issue and is without merit for the reasona

discussed in a. above.

Petitioner then filed his Reply Brief for Ap-

pellant in which he replied to the government's

contentions set forth in their answering brief.

Concisely stated, Petitioner's reply was as fol-

lows:

l. Petitioner agrees that the dollar sign

and the term "$" refer to the basic monetary unit

and posed the question, "However, IF the ‘dollar'

is the 'established' measure’ of value as the gov-

ernment contends, WHO ‘established’ it and WHAT

is it?" It would seem logieal that Congress es-

tablishes what the "$" is, defines it, and pub-

lishes that definition in an appropriate law duly-

enacted. Petitioner then posed the question, "Is

it ‘frivolous and entirely without merit' to con-

tend that the government ought to be required to

produce the lawful definition cf the material ob-

ject upon which their entire case is based?" Pe-

titioner then explained that the government's

statement, "The meaning of the term "$" is clear

10.

eed

and unambiguous," could only have been true and

valid from the year 1792 through 1964, a period

of one hundred and seventy-two years during which

the term "$" was clearly and unambiguously defin-

ed in the laws of the United States, made into

the material object defined, and circulated in

large quantities throughout the United States for

use; that Congress, in 1965 by Public Law, dis-

continued the making of such clearly and unambi-

guously defined "$'s;" and that soon after 1965

those material objects, the "$'s" which actually

existed, were withdrawn from circulation so that

during those years involved in this case, 1970,

1971, 1972, and 1973, NO such "$'s" were in cir-

culation. Since there were NO lawfully-defined

"S's" in circulation during the years in question,

WHAT were those "S's" Petitioner was alleged in

the Indictment to have “had and received?" Pe-

titioner then again posed the question he had

originally asked in his Motion for Bill of Parti-

culars, "What is the precise definition of the

'S' as used by the government in the Indictment?"

Petitioner also pointed out that he had askea for

that definition not for "defendant's satisfaction"

but in the interest of fairness and justice so

that the whole truth of this matter could be as-

certained and to allow him to prepare a proper

defense based on truth.

; a. In the instant case, where the govern-

ment relied almost exclusively upon the term "$"

at trial, tue judge may not properly deny a mo-

tion for bill of particulars where the facts re-

quested were relied upon by the government at

trial; and that denial of Petitioner's request

for a definition of the "Thing" he is alleged to

have "had and received" in sufficient quantity to

bring him within the operation of a specific law

is obviously adversely prejudicial to the defense.

b. The government's statement that the

admitted evidence was relevant could only be true

and valid IF the government had conclusively

shown what the "$" is defined as and that such

"S's" actually existed and were in circulation in

ll.

great enough quantity during the prosecution

years so that there was a very high probability

Petitioner could have “had and received" at least

a sufficient number of those "$'s" to be required

by lawto file a return; and that the government's

contention that much of the disputed evidence was

relevant to the element of willfullness because

it showed that Petitioner knew of his duty to

file income tax returns was without substance be-

cause of their reference to a single exhibit

which concerned Petitioner's discussion with his

employer's legal counsel on the subject of with-

holding tax from an employee's wages.

c. When it is well-known that, in all

criminal cases where it is alleged that the de-

fendant "had and received" some Thing (some mat-

erial object or substance, the Corpus Delicti)

upon which the crime is based, that Thing, the

material object or substance, must be defined

and/or identified beyond reasonable doubt, it is

wholly incongruous for the government to contend

that in criminal cases involving "$'s" they need

not provide the lawful definition of what a "$"

is - and is especially incongruous in the instant

case where it is reasonably possible that one or

more of three lawful definitions of the "$" could

apply; and that because the lawful definition of

the term "$" as used by the government in the In-

dictment was withheld the admitted evidence alone

was insufficient to sustain a conviction.

Although Petitioner had timely requested oral

argument, USCA3 took the appeal under considera-

tion on the briefs only, without oral argument,

on January 9, 1979.

On January 23, 1979, USCA3 issued their Judg-

ment Order without opinion (Appendix Al, infra)

affirming the USDC ED PA Judgment (Appendix A4,

infra).

Petitioner timely filed in USCA3 his Petition

for Rehearing in which he pointed out that the

Court had overlooked or misapprehended a most im-

portant and fundamental point of law, to wit, a

conviction for crime cannot be had unless the

12.

“corpus delicti," that is, the fact that the

crime charged has been actually perpetrated, is

first established, and the very important fact

that the government failed to establish the "cor-

pus delicti" in the instant case because of their

exclusive reliance upon a presumption which was

erroneously allowed to stand.

Petition for Rehearing was denied on March 7,

1979, (Appendix Bl, infra), but Petitioner did

not receive his copy of this Order until March 15,

1979, the very same day the USCA3 Judgment Order

in lieu of formal mandate was sent to the trial

Court.

Petitioner's Motion for Stay of Mandate and

to Remain Free on Own Recognizance was filed in

USCA3 on March 19, 1979, and was granted on March

27, 1979 (Appendix B2, infra).

Petitioner then made.application to Mr. Just-

ice Brennan of this Court for extension of time

in which to file his Petition for Writ of Certio-

rari which Mr. Justice Brennan granted on April

4, 1979 (Appendix B3, infra), and this Petition

was then timely filed.

REASONS FOR GRANTING THE WRIT

Preface

.

The Bill of Rights of aur federal Constitu-

tion provides specific due process safeguards to

protect defendants charged with crime in United

States courts. Among the accused's Bill of

Rights' guarantees are:

1. The right not to be compelled to be

a witness against himself;

2. The right not to be deprived of life,

liberty, or property without due process of law;

3. The right to trial by an impartial

jury;

4. The right to be informed of the na-

ture and cause of the accusation;

5. The right to compulsory process for

obtaining witnesses in his favor; and

13.

6. The right to justice fairly and hon-

estly administerec by all executive and judicial

officers pursuant to their Oath of Office whereby

they have sworn to support the U.S. Constitution.

The foregoing rights are among those set for-

th in our Bill of Rights and which a defendant

charged with crime must be accorded if justice is

to be fairly and honestly administered.

Our Jonstitution was established to perpetu-

ate liberty and justice by ~ 7rking clear, expli-

cit, and lasting constitu -onal boundaries for

trials and we need look no further than the lang-

uage of that revered document itself to be assur-

ed that defendants charged with crime are to be

accorded due process of law - i.e., they are to

be tried as the Constitution and the laws made in

pursuance thereof prescribe and not under some

arbitrary procedure that a particular judge, or

judges sitting as a panel, may see fit to pre-

scribe on the spur of the moment or because of

fear that the fair, honest, and just course of

action would, as the trial Judge in this case

expressed in open court during the hearing on

post-trial motions, "create chaos."

The fundamental constitutional principle is

that the accused is presumed innocent until he is

proved guilty and that the government, BEFORE a

conviction can be secured, MUST demonstrate be-

yond reasonable doubt each essential element of

the alleged offense. This basic principle is

clearly reflected in several provisions of our

Bill of Rights. The Fifth and Sixth Amendments

provide that as a part of due process of law the

accused shall not be compelled to be a witness

against himself; that he shall have a trial by an

impartial jury; that he shall be informed of the

nature and cause of the accusation; and shall

have compulsory process for obtaining witnesses

in his favor. The purpose of these requirements

is obviously to compel the government to state

and define specifically what it must prove in or-

der to convict the accused so that he can intel-

ligently prepare to defend himself. And to aid

14.

the accused in making his defense to the charges

thus defined, our Bill of Rights provides the ac-

cused explicit guarantees - all designed to as-

sure that the jury will, as nearly as humanly

possible, be able to consider fully ALL the evi-

dence and determine the TRUTH of every case.

‘In the instant case, the government failed to

meet its burden of proof at trial on the first

essential element of the offense charged. The

government failed to introduce any evidence to

prove (1) that there actually exists a lawful de-

finition of "$;" (2) that such a lawfully-defined

"$" was made into a material object capable of

being “had and received;" (3) that such a mater-

ial object actually existed and was in circula-

tion throughout the United States in large enough

quantity so that a very high probability existed

that Petitioner could have "had and received" at

least a sufficient number of them to bring him

within the operation of the law; or (4) that he

had actually "had and received" a sufficient num-

ber of such material objects to be "required by

law" to make an income tax return. It follows

logically, therefore, that failure by the govern-

ment to introduce sufficient evidence to prove

the first essential element of the offense charg-

ed makes the second and third essential elements

IMPOSSIBLE to prove. The case was submitted to

the jury without any evidence having been intro-

duced by the government that such a lawfully-

defined material object (the "$") capable of be-

ing “had and received" actually exists. The jury,

therefore, did not have before it ALL the evi-

dence required to fully consider and thereby de-

termine the TRUTH in this case. How can a jury

be "impartial" when it is deprived of certain es-

sential information vital to its determination of

TRUTH? The jury, of course, brought in a verdict

of "Guilty."

A reviewing court should not permit a convic-

tion to stand which is as wholly lacking in evi-

dentiary support as is the instant case. BOZZA

v. U.S. (1947) 330 US 160. See also THOMPSON v.

15.

LOUISVILLE (1960) 362 US 199.

When evidence of a crime is insufficient as a

matter of law, as the evidence in this case plain-

ly is, a reversal of conviction is in accord with

the historic principle that "independent trial

judges and independent appellate judges have a

most important place under our constitutional

plan since they have the power to set aside con-

victions." U.S. ex rel. TOTH v. QUARLES (1955)

350 US ll, 19.

To the extent that the courts below acquiesce in

and condone the government's reliance upon a pre-

sumption to bring about a conviction is each of

the guarantees set forth in our Bill of Rights

nullified. Of what use are Bill of Rights' guar-

antees to the accused if the government, in order

to secure a conviction, is not required to intro-

duce any evidence to support essential allega-

tions of the indictment it has brought? It would

be senseless and stupid to believe that our Con-

stitution would set forth all those precautions

(guarantees) to protect the accused from govern-

mental abuses if the government could by some le-

gerdemain with a presumption make nullities of

such precautions. Such a result would completely

frustrate the purpose of our Founders to estab-

lish a system of justice in which the accused -

even the poorest and most humble - would be able

to protect himself from wrongful charges by a big

and powerful government. There can be no doubt,

therefore, that constitutional due process of law

requires the government to prove beyond reason-

able doubt each element of the offense charged in

its indictment. There can be no doubt, either,

that constitutional due process of law must apply

equally to ALL criminal prosecutions - and that

defendants in criminal cases involving "$'s" are

as equally entitled to due process of law as de-

fendants in any other criminal case.

In the instant case, denial of Petitioner's

right to due process of law by the trial court

and the sanction thereof by the appellate court

evidences such a departure from the accepted and

16.

usual course of judicial proceedings based on con-

stitutional principles as to call for an exercise

of this Court's power of supervision.

1. It is a denial of procedural due process of

law for a defendant in a criminal case to be de-

nied timely-requested particulars essential to

preparing a proper defense and without which he

was found "guilty' having been unable to present

any defense at all.

Petitioner was (and still is) ignorant of the

precise lawful definition for the symbol "S$" upon

which the government relied in alleging in the

indictment that he had "had and received a gross

income" of a sufficient number of "$'s" during

the specified years to be "required by law to

make an income tax return" for those years.

Petitioner, in his timely-filed Motion for

Bill of Particulars, asked for such precise de-

finition and where it could be found in the Unit-

ed States Code so that he could properly prepare

his defense against such charges.

The government opposed giving him such defi-

nition and the trial court denied his Motion.

Such definition was not contained in the in-

dictment and the government did not otherwise

provide such definition. Petitioner was there-

fore deprived of the sure and certain knowledge

of precisely WHAT the government was charging him

with having "had and received" in sufficient quan-

tity so as to render him a person “required by

law'"' to make income tax returns.

Petitioner, by being thus deprived of such

sure and certain knowledge so that he would know

what the government intended to prove, was total-

ly unable to prepare any meaningful defense as is

evidenced in the trial transcripts.

The jury's verdict of "Guilty" was arrived at

without the jury itself having been apprised of

just exactly WHAT those "$'s" were Petitioner had

been charged with having "had and received" - the

government having introduced NO evidence to sub-

17.

stantiate the actual existence of any sort of $'s.

Petitioner, at this point, requests this

Court to take Judicial Notice of Statute I, Chap-

ter XVI, Section 9 (Appendix C8, infra) which

sets forth the original definition of the "$."

That definition, with minor variations, remained

valid for one hundred and seventy-two years dur-

ing which period the defined "S$" was made into a

material object capable of being "had and receiv-

ed" and issued into circulation in large quanti-

ties through out the United States for use as law-

ful money. Petitioner further requests this Court

to take Judicial Notice of Public Law 89-81, Sec-

tion 101(c) (Appendix C9, infra) which discontin-

ued the making of the lawfully-defined "$" for a

period of time. Whether such "$'s" were ever

made again Petitioner does not know - but he can

state positively that since 1965 he has not "had

and received" any of them if they were made.

It is, therefore, a denial of Petitioner's

Fifth Amendment right to due process of law and

his Sixth Amendment right to be informed of the

nature and cause of the accusation to be denied

timely-requested particulars essential to prepar-

ing a proper defense and this Court ought to is-

sue a Writ of Certiorari to review the judgment

of the appellate court because of their affirma-

tion of such denial.

2. It is a denial of procedural due process of

law for a defendant in a criminal case to be

caused to suffer trial and conviction based en-

tirely on "evidence" founded upon a presumption

which defendant was precluded from rebutting by

denial of timely-requested particulars.

In the instant case, the outstanding presump-

tion relied upon by the government and upheld by

the trial court was that such Things as "$'s"

actually existed during the years at issue.

Petitioner's request, in his Motion for Bill

of Particulars, for the lawful definition of the

"S$" was to clear up such presumption by making

18.

known to all concerned the truth of WHAT Congress

intended the "S$" to be. His request for such de-

finition was denied. Furthermore, the government

produced no evidence whatsoever to establish this

one most basic fact necessary to prove commission

of the crime charged and the outcome of this case

in the trial court was predicated upon the pre-

sumption that such Things as "$'s" actually exis-

ted during the years at issue.

And furthermore, because the reasonable pos-

sibility exists that one or more of three lawful

definitions could apply in the instant case, Pe-

titioner, not knowing which definition/s the gov-

ernment was relying upon, was precluded from re-

butting the presumption.

It is, therefore, a denial of Petitioner's

Fifth Amendment right to due process of law to be

caused to suffer trial and conviction based en-

tirely on "evidence" founded upon a presumption

and this Court ought to issue a Writ of Certio-

rari to review the judgment of the appellate

court because of their affirmation of such denial.

3. It is a denial of procedural due process of

law for a defendant to be caused to suffer con-

viction in a criminal case in which the govern-

ment was not held to its burden of proof, i.e.,

its burden of proving beyond reasonable doubt

each essential element of the offense charged in

the indictment and each essential sub-element as

would necessarily be included within each essen-

tial element.

At trial the government introduced document-

ary "evidence" which showed Petitioner had earned

and was entitled to a given number of "$'s" dur-

ing each of the years in question.

None of the four government witnesses intro-

duced at trial was able to testify of his own

personal knowledge the Petitioner had actually

received any of those "S's" he had earned and to

which he was entitled.

The government introduced NO affidavit, de-

19.

position, or investigative report of any other

witness having personal knowledge of, or of hav-

ing personally witnessed, the receipt by Peti-

tioner of the given number of "$'s" alleged in

the indictment - or of any other number of "$'s."

The three essential elements of the offense

charged, each of which the government had the

burden of proving beyond reasonable doubt, were

explained to the jury by the trial judge. The

first of the three essential elements being, "that

the defendant was a person required by law to

make a return of his income for the year in ques-

tion."

Included within that first essential element

are four essential sub-elements as follows:

First, that there actually exists an of-

ficial definition of the symbol "$" and the word

it represents - as defined in the laws of the

United States by the U.S. Congress pursuant to

its authority granted by Article I, Section 8, of

the U.S. Constitution; and

Second, that such a lawfully-defined "$"

actually exists as a material object capable of

being "had and received;" and

Third, that such a lawfully-defined "$"

is actually in circulation in the United States

in sufficent quantity so as to be readily avail-

able for use as money; and

Fourth, that Petitioner actually "had and

received" a sufficient number of such lawfully-

defined "S's" during the years in question so as

to be "required by law" to make an income tax

return.

In order for the government to prove beyond

reasonable doubt the first essential element of

the offense charged it must also prove beyond

reasonable doubt each of the four included sub-

elements. How did they do?

Taking each of these four sub-elements in

order:

First, the government submitted NO evi-

dence that a lawful Congressional definition for

the symbol "S$" actually exists - the government

20.

cited NO law of the United States which defines

the "S$;" and

Second, the government submitted NO evi-

dence that any such Thing as a lawfully-defined

"S$" actually exists; and

Third, the government submitted NO evi-

that any such Thing as a lawfully-defined "$" is

actually in circulation in the United States in

sufficient quantity so as to be readily available

for use as money; and

Fourth, the government submitted NO evi-

dence that Petitioner had actually "had and re-

ceived" a sufficient number of such lawfully-

defined "$'s" in each of the years in question to

be "required by law" to make an income tax return.

Thus, the government's failure to submit ANY

evidence which could prove beyond reasonable

doubt each and every one of the four included

sub-elements of the first essential element of

the offense charged in the indictment negates any

inference that Petitioner was "required by law"

to make an income tax return.

It is, therefore, a denial of Petitioner's

Fifth Amendment right to due process-of law and

of his Ninth Amendment right to justice fairly

and honestly administered by all executive and

judicial officers concerned by being caused to

suffer conviction in a criminal case in which the

government was not held to its burden of proof

and this Court ought to issue a Writ of Certio-

rari to review-the judgment of the appellate

court because of their affirmation of such denial.

4. It is a denial of procedural due process of

law for a defendant to be caused to suffer con-

viction in a criminal case in which the govern-

failed to establish the "corpus delicti."

It is too well-known to require any elabora-

tion that "corpus delicti" consists of all the

basic facts necessary to prove the commission of

the crime charged; and the fact that a crime has

been committed, or "corpus delicti," cannot be

Bhs

established by a presumption.

In the instant case Petitioner was charged

with having “had and received" a sufficient num-

ber of "$'s" during each of four years so as to

be "required by law" to make an income tax: return

and that he willfully and knowingly failed to

make said return. The "corpus delicti," there-

fore, ‘would consist of two sections, first, the

"corpus," that he had actually "had and received"

a sufficient number of "$'s" during each,to trig-

ger the requirement that he make an income tax

return and that no returns were made, and second,

the “delicti (or delict)," that with knowledge he

was required to make an income tax return he will-

fully and knowingly (with criminal intent) failed

to do so.

The government, in failing to introduce any

evidence that lawfully-defined "$'s" actually ex-

ist but relying upon the presumption that they

did, failed to prove the "corpus" of the crime

charged - and, of course, by failing to prove the

"corpus," the "corpus delicti" was not proved.

It is, therefore, a denial of Petitioner's

Fifth Amendment right to due process of law to be

caused to suffer conviction in a criminal case in

which the government failed to establish the “cor-

pus delicti" and this Court ought to issue a Writ

of Certiorari to review the judgment of the ap-

pellate court because of their affirmation of

such a denial.

year

CONCLUSION

Probably the most outstanding fact which con-

nects all the. proceedings in this case is that

the government failed to carry its burden of

proof and the lower courts did not hold them to

it. This Court succinctly set forth the princi-

ple of "burden of proof" in DAVIS v. U.S., 160 US

469, where it said:

"Strictly speaking, the ‘burden

of proof,’ as these words are under~

22.

stood in the criminal law, is never

upon the accused to establish his

innocence or to disprove the facts

necessary to establish the crime

for which he is indicted. It is on

the prosecution from beginning to

end, and applies to every element

necessary to constitute the crime."

Upon its objective consideration of the facts

set forth in the Statement of the Case and under

Reasons for Granting the Writ and of the informa-

tion contained in the Appendices, infra, Petition-

er prays that this Court will recognize that the

denial by the trial court of Petitioner's right

to due process of law and the affirmation by the

appellate court of that denial is such a depart-

ure from the accepted and usual course of judici-

al proceedings based on constitutional principles

as to call for an exercise of this Court's power

of supervision and that a Writ of Certiorari is-

sue to review tle judgment of the U.S. Court of

Appeals for the Third Circuit.

Respectfully submitted,

GEORGE A. BOMHER

P. O. Box 186

Glenside, PA 19038

Tele; 215-887-2576

May, 1979. Petitioner Pro Se

23,

BOMHER v. U.S.; Petition for Writ of Certiorari

APPENDICES

Al: USCA3 Judgment Order

~A2: USDC ED PA Findings of Fact, Conclu-

sions of Law and Order

A3: USDC ED PA Order Denying Petition for

Reconsideration of Post-trial Motions

A4: USDC ED PA Judgment

Bl: USCA3 Order Denying Petition for

Rehearing

B2: USCA3 Order Granting Stay of Mandate

B3: Mr. Justice Brennan's Order Granting

Extension of Time to File Petition

Cl: U.S. Constitution, Article I, Sec. 8

C2: U.S. Constitution, Article VI

C3: U. S. Constitution, Amendment Five

C4: U.S. Constitution, Amendment Six

C5: U.S. Constitution, Amendment Nine

C6: Title 26 USC Section 6012

C7: Title 26 USC Section 7203

C8: Stainen I, Chapter XVI

C9: Public Law 89-81

PAGE

A-2

UNITED STATES COURT OF APPEALS for judgment of acquittal where, in

FOR THE THIRD CIRCUIT ° ‘ the absence of certain requested es-

sential particulars, the evidence was

No. 78-1924 insufficient to sustain a conviction;

UNITED STATES OF AMERICA, Appellee 4. In denying appellant's motion

for a new trial where the previous de-

Ee nial of his request for certain essen-

BOMHER, GEORGE A., Appellant tial particulars established reason-

able probability that & miscarriage of

Appeal from the United States District Court justice had taken place;

for the Eastern District of Pennsylvania

D.C. Crim. No. 77-00065 It is ADJUDGED and ORDERED that the judgment

of the district court be and is hereby affirmed.

Submitted under Third Circuit Rule 12(6)

on January 9, 1979 By the Court,

Before HUNTER, GARTH, Circuit Judges, and LAYTON* . /s/

District Judge James Hunter, III,

° Circuit Judge

*Honorable Caleb R. Layton, 3rd, United States Attest:

District Judge for the District of Delaware,

sitting by designation. . Dated: /s/

January 23, 1979. Thomas F. Quinn, Clerk

JUDGMENT ORDER

APPENDIX A2

After consideration of all contentions raised

by appellant, to wit, that the Court erred: - IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

1. In ruling that certain parti-

eculars which were timely requested and Criminal Action No. 77-65

which were essential to properly pre-

pare a fair defense against the charges UNITED STATES OF AMERICA

stated in the Indictment could be denied io

appellant; ; GEORGE A. BOMHER

2. In admitting evidence, over ap- 3 FINDINGS OF FACT, CONCLUSIONS OF LAW

pellant's objections, which, in the ab- AND ORDER

sence of certain requested essential . °

particulars, was adversely prejudicial HUYETT, J. June 2, 1978

to appellant's defense;

Defendant.was convicted of four counts of

3. In denying appellant's motion willful failure to file tax returns in violation

A-2 A-3

of 26 USC Sec. 7203. Prior to trial defendant

had filed a motion to suppress bank records which

the Internal Revenue Service had obtained from

the Bank of America, 3rd and K Branch, Chula Vis-

ta, California through the use of a summons is-

sued pursuant to 26 USC Sec. 7602. Defendant's

motion to suppress was denied by the Court with-

out holding an evidentiary hearing and the bank

records were admitted into evidence at trial. In

his motion for a new trial, defendant renewed

his objection to the use of a civil summons to

obtain his bank records for what ,defendant alleg-

ed to have been either primarily or solely a cri-

minal investigation. In light of the Court of

Appeals for the Third Circuit's recent opinion in

United States v. Lester Genser and Lawrence For-

man, Nos. 76-2623 and 76-2624 (3rd Cir., filed

February 23, 1978), we reconsidered our earlier

rulin; and held an evidentiary hearing on defend-

ant's motion to suppress on May 18, 1978. Having

carefully considered the testimony and exhibits

introduced at that hearing and the memoranda of

law submitted by defendant and the Government, we

now make the following findings of fact and con-

clusions of law.

FINDINGS OF FACT

1. Tedd A. Boomershine has been a Special A-

gent with the Intelligence Division of the Inter-

nal Revenue Service from August, 1973 until the

present. Boomershine was transferred to San Diego,

California in June 1974.

2. In August, 1974, Boomershine was assigned

to investigate the case of George A. Bomher. At

that time, there had been no recommendation with-

in the Internal Revenue Service (IRS) for crimi-

nal prosecution of defendant.

3. Boomershine's primary purpose in under-

taking the investigation was to determine whether

there had been any ‘criminal violation of the In-

ternal Revenue Code. A determination of possible

criminal violations was not the sole purpose un-

derlying Boomershine's investigation. Boomer-

shine also undertook the investigation with the

A-4

aim of ascertaining and establishing defendant's

civil tax liability.

4. On October 10, 1974, Boomershine wrote to

defendant to inform him that the Intelligence Di-

vision of the Internal Revenue Service had initi-

ated a criminal investigation into defendant's

tax affairs for the years 1970-73. Exhibit A-1l

to Defendant's Memorandum of Points and Authori-

ties in Support of Defendant's Motion for a New

Trial.

5. On October 25, 1974, an administrative

summons was issued pursuant to 26 USC Sec. 7602

to the Bank of America, 3rd and K Branch, Chula

Vista, California requiring the bank to produce

bank records of the defendant before Boomershine

on November 8, 1974. Exhibit 1 from the Suppres-

sion Hearing. The bank produced the records re—-

quested and at least some of these records were

produced at defendant's trial. Trial Exhibits

VII-1 through VII-10. At the time the summons

issued and the records were produced, Boomershine

had not formed a firm purpose to recommend de-

fendant for criminal prosecution.

6. Administrative summons issued pursuant to

26 USC Sec. 7602 and requiring the production of

defendant's records before Boomershine were also

issued to the San Diego Navy Federal Credit Union

on October 30, 1974, and to the Pacific Telephone

Company in San Diego, California on November 26,

1974. Exhibits 2 and 3 from the Suppression Hear-

ing. At the time these summons issued and the

records were produced, Boomershine had not formed

a firm purpose to recommend defendant for crimi-

nal prosecution.

7. In December, 1974, Internal Revenue Agent

Walter Lee Ayling joined Boomershine in the in-

vestigation of defendant's tax affairs. Ayling

continued to assist Boomershine in that investi-

gation until a recommendation for prosecution was

made. Ayling Affidavit.

8. Boomershine did not form a firm purpose

to recommend Bomher for criminal ‘prosecution un-

til late in January, 1975. In the middle of Feb-

A-5

ruary , 1975, Boomershine made his formal report

to his superiors recommending that Bomher be cri-

minally prosecuted.

9. The only documents obtained through the

use of administrative summons issued October 25,

1974 to the Bank of America and utilized at trial

were Exhibits VII-1l through VII-10. The bank re-

cords did not lead to the discovery of any other

documents or evidence used at trial. All the

government's trial exhibits, other than Trial Ex-

hibits VII-1 through VII-10, were discovered in-

dependently from the bank records.

CONCLUSIONS OF LAW

1. Defendant has standing to raise a viola-

tion of 26 USC Sec. 7602 and, if such violation

is established, suppression of the improperly ob-

tained evidence and its fruits is the appropriate

remedy. United States v. Genser and Forman, sup-

ra.

2. An administrative summons is issued il-

legally under 26 USC Sec. 7602 where:

a. The only purpose of the Agent's in-

vestigation is to gather material for a criminal

investigation. Donaldson v. United States, 400

US 517, 536 (1971); or

b. The Intelligence Division of the In-

ternal Revenue Service has already recommended

criminal prosecution. Id.; United States v.

Friedman, 532 F2d 928, 932 (3rd Cir. 1976); or

c. Even though there is a civil side to

the investigation, "the investigating agent has

. . . already formed gq firm purpose to recommend

prosecution." Id. (FN 1)

(FN 1: In Friedman, the court noted two further

purposes which would be impermissible under 26

USC Sec. 7602: 1. to harass the taxpayer, and

2. to obtain material which has previously been

inspected by the Government. United States v.

Friedman, supra at 932. There is no suggestion

that either of these theories apply to the con-

duct of the agents in this case.) :

3. "(A) mere showing that a Special Agent of

the Service's Intelligence Division was the only

person assigned to investigate the (taxpayer's)

liability" is not sufficient to make out a viola-

tion of 26 USC Sec. 7602. United States v. Fish-

er, 500 F2d 683, 688 (3rd Cir. 1974), aff'd 425

US 391 (1976); see United States v. McCarthy, 514

F2d 368, 374 n. 8 (3rd Cir. 1975).

4. There was no violation of 26 USC Sec.

7602 in the administrative summons issued on Oct-

ober 25, 1974 to the Bank of America, 3rd and K

Branch, Chula Vista, California. Therefore, the

evidence obtained by that summons and introduced

at trial need not be suppressed. Therefore, the

Court*was correct in denying defendant's pretrial

motion to suppress.

5. Even if the October 25, 1974 summons was

issued illegally, the remainder of the Govern-

ment's exhibits and evidence at trial were dis-

covered independently from the bank records and

therefore need not be suppressed. United States

v. Genser and Forman, supra at 3l.

6. Even if the bank records should have been

suppressed, the admission of Exhibits VII-1l thro-

ugh VII-10 constituted harmless error under Fed.

R.Crim. P. 52(a). United States v. Vallejo, 482

F2d 616, 618 (3rd Cir. 1973), cert. denied, 416

US 940 (1974). Since the alleged illegality on

the part of the Special Agent involves no consti-

tutional provision, the proper standard to apply

is whether we can conclude "with fair assurance,

after pondering all that happened without strip-

ping the erroneous action from the whole, that

the judgment was not substantially swayed by the

error... ." Kotteakos v. United States, 328

US 750, 764-65 (1946). The remaining documents

and testimony, other than the bank records, con-

stituted overwhelming evidence of the defendant's

guilt and, therefore, any error with respect to

the bank records did not influence the jury's

verdict.

7. We have reviewed the remainder of defend-

ant's contentions including:

a. The evidence was insufficient to sus-

tain a conviction. |

b. Denial of defendant's motion for a

bill of particulars.

c. The admission into evidence of the

Government's exhibits over the defendant's ob~

jections.

d. The verdict was contrary to the

weight of the evidence and not supported by the

evidence.

e. The verdict is contrary to law.

We find that these contentions have no merit.

Therefore, defendant's motion for a judgment of

acquittal and motion for a new trial will be

denied.

/s/

ORDER

Now, June 2, 1978, upon consideration of de-

fendant's motion for judgment of acquittal and

motion for a new trial, memoranda submitted, and

oral argument, IT IS ORDERED that the motions

shall be DENIED for the reasons stated in the ac-

companying Findings of Fact and Conclusions of

Law; defendant shall report for sentencing on

June 26, 1978 at 9:30 A.M., Courtroom 12-A.

/s/

Daniel H. Huyett, III

APPENDIX A3

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Criminal Action No. 77-65

UNITED STATES OF AMERICA

Vv .

GEORGE A. BOMHER

ORDER

Now, June 23, 1978, upon consideration of de-

fendant's motion for reconsideration of the Court's

Order of June 2, 1978, IT IS ORDERED that the mo-

tion is DENIED. Prior to ruling on the conten-

tions advanced in support of defendant's post-

trial motions, the defendant's arguments were

considered carefully and fully. As we noted on

page 6 of the Order dated June 2, 1978, "(W)e

have reviewed the remainder of defendant's con-

tentions . .. (and) (w)e find that these conten-

tions have no merit."

- /s/

APPENDIX A4

UNITED STATES DISTRICT COURT

FOR EASTERN DISTRICT OF PENNSYLVANIA

Docket No. 77-65

JUDGMENT AND PROBATION/COMMITMENT ORDER

Counsel: Pro Se Date: June 26, 1978

Plea: Not Guilty

Finding and Judgment: Guilty. Defendant has

been convicted of the offense of willfully and

knowingly failed to file income tax returns in

violation of Title 26 USC Sec. 7203.

Sentence: The court asked whether defendant had

anything to say why judgment should not be pro-

nounced. Because no sufficient cause to the con-

trary was shown, or appeared to the court, the

court adjudged the defendant guilty as charged

and convicted and ordered that: The defendant

is hereby committed to the custody of the Attorn-

ey General or his authorized representative for

imprisonment for a period of six (6) months and

fined the sum of one thousand ($1,000.00) dollars,

A-9

to be paid within ten (10) days of this date, on

Count I.

On Count II and III the same sentence is in-

posed on each Count ason Count I to run concur-

rent with the sentence on Count I, except no ad-

ditional fines.

On Count IV imposition of sentence is hereby

suspended and the defendant is placed on proba-

tion for a period of five (5) years, to commence

upon the date of release from period of imprison-

ment, subject to following conditions of proba-

tion.

Defendant to obtain employment so he can dis-

charge his federal income tax liabilities to the

U. S. Government.

Defendant is to enter into a suitable agree-

ment with the U.S. Treasury Department on a sched-

ule of payments of federal income taxes, penal-

ties and interest owing.

Signed by U.S. District Judge

/s/ Daniel H. Huyett, III Date 6/26/78

APPENDIX Bl

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 78-1924

UNITED STATES OF AMERICA

BOMHER, ‘GEORGE A.

SUR PETITION FOR REHEARING

Present: Seitz, Chief Judge, Aldisert, Adams,

Gibbons, Rosenn, Hunter, Weis, Garth,

Higginbotham, Circuit Judges.

The petition for rehearing filed by GEORGE A.

BOMHER, Appellant, in the above entitled case

having been submitted to the judges who partici-

A-10

pated in the decision of this court and to all

the other available circuit judges of the circuit

in regular active service, and no judge who con-

curred in the decision having asked for rehear-

ing, and a majority of the circuit judges of the

circuit in regular active service not having vot-

ed for rehearing by the court in banc, the peti-

tion for rehearing is denied.

Dated: By the Court,

/s/

James Hunter, III

Circuit Judge

March 7, 1979.

APPENDIX B2

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 78-1924

UNITED STATES OF AMERICA

V.

BOMHER, GEORGE A.

Present: Hunter and Garth, Circuit Judges and

Layton, District Judge

1. Motion by appellant for Stay of Mandate

Pending Application to the U.S. Supreme Court for

Writ of Certiorari and to Remain Free on Own Re-

cognizance, which the Court may wish to treat as

a Motion to Recall the Mandate.

2. For your information the Judgment Order

was entered in this appeal on January 23, 1979,

and an order was filed on March 7, 1979, denying

the Petition for Rehearing. The Certified Judg-

ment Order in Lieu of Formal Mandate timely is-

sued on March 15, 1979.

In the above-entitled case. Any answer which

would be due by March 28, 1979, will be forwarded

to you upon receipt of same.

A-11

Respectfully,

/s/ T. F. Quinn

Clerk

The foregoing Motion is granted. If a petition

for writ of certiorari is timely filed in the

Supreme Court, the reissuance of the mandate will

be continued until final disposition by the Sup-

reme Court.

By the Court,

Dated: /s/ James Hunter, III

March 27, 1979. Judge

APPENDIX B3

SUPREME COURT OF THE UNITED STATES

No. A-865

GEORGE A. BOMHER, Petitioner

Vv.

UNITED STATES, Respondent

ORDER EXTENDING TIME TO FILE

PETITION FOR WRIT OF CERTIORARI

Upon consideration of the application of petition-

er, IT IS ORDERED that the time for filing a pe-

tition for writ of certiorari in the above-entit-

led cause be, and the same is hereby, extended to

and including May 6, 1979.

/s/ William J. Brennan, Jr.

Dated Associate Justice of

this 4th day the Supreme Court of

of April, 1979. the United States

APPENDIX Cl; U.S.Const., Art. I, Sec. 8:

The Congress shall have Power * * * To coin

Money, regulate the Value thereof, and of foreign

A-12

Coin, and fix the Standard of Weights and Meas-

ures; * *% ,

APPENDIX C2; U.S. Const., Article VI:

This Constitution, and the Laws of the United

States which shall be made in Pursuance thereof;

x * * , shall be the supreme Law of the Land; * 4

* and all executive and judicial Officers, both

of the United States and of the several States,

shall be bound by Oath or Affirmation, to support

this Constitution; * * * ,

APPENDIX C3; U.S. Const., Amendment Five:

No person * * * shall be compelled in any

criminal case to be a witness against himself,

nor be deprived of life, liberty, or property,

without due process of law; * * * ,

APPENDIX C4; U.S. Const., Amendment Six:

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury * * * , and to be in-

formed of the nature and cause of the accusation;

to be confronted with the witnesses against him;

to have compulsory process for obtaining witness-

es in his favor; * * *,

APPENDIX C5; U.S. Const., Amendment Nine:

The enumeration in the Constitution, of cer-

tain rights, shall not be construed to deny or

disparage others retained by the people.

APPENDIX C6; Title 26 USC Section 6012:

(a) General Rule. Returns with respect to

income taxes under subtitle A shall’ be made by

the following:

(1) (A) Every individual having for the

taxable year a gross income of $(see Note below

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for sums applicable to years involved in this

case) or more, * * * ,

NOTE: In the years 1970 through 1972 defendant

was married, in 1973 he was single. For calendar

years 1970 and 1971, Section 6012(a) required ev-

ery married individual under the age of 65 to

make a return if he had a gross income of $2,300

or more for his taxable year. For the calendar

year 1972 the figure was $2,800 or more. For the

calendar year 1973, Section 6012(a) required eve-

ry single individual under the age of 65 to make

a return if he had gross income of $2,050 or more

for his taxable year.

APPENDIX C7; Title 26 USC Section 7203:

WILLFUL FAILURE TO FILE RETURN, SUPPLY INFORMA-

TION, OR PAY TAX. Any person required under this

title to pay any estimated tax or tax, or requir-

ed by this title or by regulations made under au-

thority thereof to make a return * * * , keep any

records, or supply any information, who willfully

fails to pay such estimated tax or tax, make such

return, keep such records, or supply such inform-

ation, at the time or times required by law or

regulations, shall, in addition to other penal-

ties provided by law, be guilty of a misdemeanor

and, upon conviction thereof, shall be fined not

more than $10,000, or imprisoned not more than

1 year, or both, together with the cost of pro-

secution.

APPENDIX C8; Statute I, Chapter XVI:

April 2, 1792. An Act establishing a Mint, and

regulating the Coins of the United States. * * *

Sec. 9. And be it further enacted, That

there shall be from time to time struck and coin-

ed at said mint, coins of gold, silver, and cop-

per, of the following denominations, values, and

descriptions, viz, EAGLES - each to be of the

value of ten dollars or units, and to contain two

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hundred and forty-seven grains and four eighths

of a grain of pure, or two hundred and seventy

grains of standard gold. HALF EAGLES - each to

be of the value of five dollars, and to contain

one hundred and twenty-three grains and six eigh-

ths of a grain of pure, or one hundred and thirty-

five grains of standard gold. QUARTER EAGLES -

each to be of the value of two dollars and a half

dollar, and to contain sixty-one grains and seven

eighths of grain of pure, or sixty-seven grains

and four eighths of a grain of standard gold.

DOLLARS or UNITS - each to be of the value of the

Spanish milled dollar as the same is now current,

and to contain three hundred and seventy-one gra-

ins and four sixteenth parts of a grain of pure,

or four hundred and sixteen grains of standard

silver. HALF DOLLARS - each to be of half the

value of the dollar or unit, and to contain one

hundred and eighty-five grains and ten sixteenth

parts of a grain of pure, or two hundred and ei-

ght grains of standard silver. QUARTER DOLLARS -

each to be of one fourth the value of the dollar

or unit, and to contain ninety-two grains and

thirteen sixteenth parts of a grain of pure, or

one hundred and four grains of standard silver.

DISMES - each to be of the value of one tenth of

of a dollar or unit, and to contain thirty-seven

grains and two sixteenth parts of a grain of pure,

or forty-one grains and three fifth parts of a

grain of standard silver. HALF DISMES - each to

be of the value of one twentieth of a dollar, and

to contain eighteen grains and nine sixteenth

parts of a grain of pure, or twenty grains and

four fifth parts of a grain of standard silver.

CENTS - each to be of the value of one hundredth

part of a dollar. and to contain eleven penny-

weights of copper. HALF CENTS - each to be of

the value of half a cent, and to contain five

penny-weights and half a penny-weight of copper.

APPENDIX C9; Public Law 89-81

July 23, 1965. An Act to provide for the coinage

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of the United States. Be it enacted by the Sen-

ate and House of Representatives of the United

States in Congress assembled, That this Act may

be cited as the "Coinage Act of 1965."

&)

TITLE I - AUTHORIZATION OF ADDITIONAL COINAGE

Sec. 101. * * *

(c) No standard silver dollars may be

minted during the five-year period which begins

on the date of enactment of this Act. ** * ,

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