# Petition for ReHearing — Patridge v. United States (No. 07-1045)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for ReHearing
- **Published:** January 1, 2007

## Text

2
a\ 07-1045

OFFI

FILED
APR 17 2008

CE OF THE CLERK
SUPREME COURT, U.S.

In the

SUPREME COURT OF THE UNITED STATES

Denny R. Patridge

Petitioner,

UNITED STATES

Respondent.

On Petition for Writ of Certiorari
to the United States Court of Appea
the Seventh Circuit

PETITION FOR REHEARING

Denny R. Patridge

c/o Inmate # 14267-026
P.O. Box 206

Strasburg, lilinois 62465
(217)644-3108

ls for

(812)238-1531 (prison phone)

CONCLUSION

CERTIFICATE OF PETITIONER

-|- page #
TABLE OF CONTENTS
INTRODUCTION .

Article Ill, Section 2, Clause 3 says the “irial”
of all “crimes” committed with any State
shall be held in that State unless the crime
alleged was not alleged to have been
committed within any State and then
Congress shall provide the place for such
trial. .

A Judgment is by person and not judge if
there is no territorial jurisdiction for the
United States to stand in adjudication of
any crime committed within the territorial
jurisdiction of a State pursuant to Article Ill,
SOCTION 2 Skuse 3. oa eee 13

-\i- page #
TABLE OF AUTHORITIES -continued

Burnham v. Superior Court of Cal., Marin

Gouriy, 475 U.S. 604 606 (1990) 2... wc cece cen 14
EEOC v. Arab Am. Oil Co., 499 U.S. 244,(1991) 12
Foley Bros., Inc. v. Filardo, 336 U.S. 281,{1949}) 12
Heath v. Alabama, 474 U.S. 82, 88 (1985) ..... 8
Moore v. Illinois, 14 How. 13, 19 (1852) ........ 8
Ngiraingas v. Sanches, 495 U.S. 182, 189 (1990)11
Pennoyer v. Neff, 95 U.S. 714 (1878) ...... 11,14
Pennsylvania v. Nelson, 350 U.S. 497, 512 (1956) 8
Stewart & Co. v. Sadrakula, 309 U.S. 94(1940) 8.9

Tafflin v. Levitt, 493 U.S. 455, 458 (1990) ....... 7
ws. ¥. Lanza, 260 U.S. 377, 382 (1922) ......... 8
U.S. v. Morton, 467 U.S. 822, 836 (1984) ....... 2

ADDITIONAL MATERIAL

E. Pomeroy, The Territories and the United States

1861-1890, Studies in Colonial Administration 51

INTRODUCTION

Thus far Petitioner has been indicted by a
United States of America “Grand Jury” sitting in
the United States Central District for the United
States District of Illinois. That indictment
amended by the District Court without any Grand
Jury knowing it. Purportedily given a “trial”
wherein the key defense witness was an attorney
who the Chief Judge assigned to the case was
the key witness in a criminal! complaint filed
against this defense witness but nobody knew this
but the prosecutor and the Judge. Because of
the other witnesses, as attorneys, were threatened
with being investigated, the U.S. Attorney
successfully prevented any of the people
Petitioner relied upon from testifying as to
Petifioner’s reliance in good faith on those
attorneys. Then, Petitioner was prevented by the
District Court, same Chief Judge who both began
the criminal case against a key defense witness

and who prevented the same witness from

]

testifying because of such investigation without

disclosing that such Chief Judge was the reason
for such investigation, from presenting this
evidence inhis defense to the charges. Petitioner
was denied key jury instructions involving federal
law which were sanctioned by words from this
very Court such as Cheek, Bryan and Ratzlaf.
Petitioner was denied the jury being given the
meaning to “evade and avoid" when asked.
Petitioner, found guilty by this United States of
America jury, was then delayed for 15 months
from “sentencing” so the tax loss could be
determined for judge found fact sentencing,
even though the Grand Jury alleged a much
smailer amount of fax loss only to be struck by the
same Chief Judge. Let us not forget that the ©
facts found by the Jury provided fora deprivation
of liberty no more than 12 months and the facts
found by the District Court extended such to 5
times that or 5 years.

Then there was the appeal to the 7" Circuit

2

which every indication was given to Petition he

had a “right” to do. See FRAP 3 and 4
Petitioner's attorney raised 18 out of 30 possible
issues on appeal, to which each issue was
determined “frivolous” even though each issue
was well supported by decisions by this Court,
numerous laws, and even decisions from the 7"
Circuit. Rejecting each of them, the 7™ Circuit
threatened, in a published decision, to disbar
Petitioner’s attorney, and further penalize him
$10,000 for appealing the numerous and
erroneous decisions by the Circuit Judges.

After showing cause why he should not be
threatened, the 7™ Circuit, faced with having to
go on the record with a hearing under Rule 46 of
the Federal Rules of Appellate Procedure and
knowing issues would come up as to why Counsel
was wrong for relying on specific words of this
Court, discharged that part of the rule to show
cause, and instituted a $ 10,000 penalty under

Rule 38 without explaining how much of the

ie
J

penalty was for what part of the claim of
impropriety made by the 7™ Circuit for the first
time in their decision on the merits. This penalty
was ordered to be paid to the Court itself.
Petition calls this sandbagging.

Next, Petitioner Petitions to this Court called
a “writ of certiorari” and even files for a stay
because it was so biatantly clear Petitioner was
currently incarcerated entirely upon the advice
of attorneys, or decisions made by attorneys, or
because Petitioner is not an attorney. All of
which, save Mr. Barringer, not one of those
“attorneys” was willing to stand good for any of
there advice by remaining silent or previous
decisions they had authored for this Court.

For instance, the attorneys Petitioner relied
upon were prohibited under the Fifth Amendment
and Sixth Amendment from giving testimony as to
the advice they gave Petitioner. Certainly, such
testimony would have demonstrated reliance

Petitioner intended. That was not allowed to

4

happen.

Then there is the attorneys, as Judges,
Petitioner is led to believe will right a wrong made
by lower Court Judges, that happened to be an
attorney. That did not happen.

Then there is Petitioner's attorney being
able to explain why he should not be disbarred
after the 7™ Circuit libel and slandered him for no
good reason. That was not allowed to happen.

Then finally, Petitioner gets to this Court and
presents the learned words of Justice Stevens in
the Bryan decision at 194, Justice Ginsberg in the
Ratzlaf decision at 141, and Petitioner is certain
each Justice of the Supreme Court is aware of
Justice White's “Cheek” decision at 200-202.

Yet, no Justice, not even one, voted to
consider orreview all the above even though it is
overwhelming that the Constitutional Rights
violations levied upon Petitioner and his liberty by
the United States and its attorneys, in what ever

official position, seems to be the standard and

5

not the exception of expectation.

Petitioner even thought about asking for
review of the 7" Circuit's decision by explaining
how wonderful it was fo enjoy the confidence the
United States tenders every time it writes
something in this criminal tax case. And that is
the issue. A Criminal Tax Case for violating laws
written by Congress.

¥; Article ill, Section 2, Clause 3 says the “trial”
of all “crimes” committed with any State
shall be held in that State unless the crime
alleged was not alleged to have been
committed within any State and then
Congress shall provide the place for such
trial.
Article lll, Section 2, Clause 3, mandates the
“trial of all Crimes, except in Cases of
Impeachment, shall be by Jury; and such Trial
shall be held in the State where the said Crimes
shall have been committed: but when not

committed within any State, the Trial shail be at

such Place or Place as the Congress may by law

have directed."

The Crimes alleged in the “superceding
indictment" were each allicged to have been
committed outside the territorial jurisdiction of the
United States and in Illinois or flowing out of Illinois
but never in the territorial jurisdiction of the United
States. “We begin with the axiom that, under our
federal system, the States possess sovereignty
concurrent with that of the Federal Government
subject only to limitations imposed by the
Supremacy Clause.” Tafflin v. Levitt, 493 U.S. 455
458 (1990)

Title 18, Section 3231 provides

“The district courts of the United States
shall have original jurisdiction,
exclusive of the courts of the States,
of all offenses against the laws of the
United States.

"Nothing in this title shall be held to
take away or impair the jurisdiction of
the courts of the several States under
the laws thereof.

“The office of the second sentence is

merely to limit the effect of the jurisdictional grant
of the firstsentence.” Pennsylvania v. Nelson, 350
U.S. 497, 512 (1956) “ The dual sovereignty
doctrine its founded on the common law
conception of crime as an offense against the
sovereignty of the government.” Heath v.
Alabama, 474 U.S. 82, 88 (1985)

“When a defendant ina single act violates
the ‘peace and dignity’ of two sovereigns by
breaking the laws of each, he has committed two
distinct ‘offences.’ United States v. Lanza, 260 U:S.
377, 382 (1922).”" Id. As the Court explained in
Moore v. illinois, 14 How. 13, 19 (1852), "[a]n
offence. in its legal signification, means the
transgression of a law.” Consequently, when the
same act transgresses the laws of two sovereigns,
“it cannot be truly averred that the offender has
been twice punished for the same offence: but
only that by one act he has committed two

offences, for each of which he is_ justly

punishable.” Id., at 20.

In Stewart & Co. v. Sadrakula, 309 U.S. 94,
100 (1940)this Court explained “After this statute
was held inapplicable to claims under state
workmen's compensation acts further legislation
undertook to extend the provisions of those acts
to the places under federal sovereignty. With
growing frequency the federal government
leaves largely unimpaired the civil and criminal
authority of the state over nationalreservations or
properties.”

“While exciusive federal jurisdiction
attaches, state courts are without power to
punish for crimes committed on federal property.”
This has made necessary the legislation which
gives federal courts jurisdiction over these crimes.
The tendency toward a uniformity between the
federal and surrounding state territory has caused
a series of congressional acts adopting the state
criminallaws. Through these concessions our dual
system of government works cooperatively

towards harmonious adjustment. ld. at 10]

9

Congress had no authority to provide for
the trial in this case within the territorial jurisdiction
of the United States. Certainly, Congress had the |
commerce clause authority to regulate interstate
activity and provide the element of an interstate
nexus for such legislation to attach to certain
conduct. But this does not mean that such
alleged conduct took place outside any State
thus placing the territorial jurisdiction under Article
Ill for such Trial to be where Congress authorizes.

The Constitution only authorized the Trial of
each of the alleged acts in the Superceding
Indictment to be tried in the State, Illinois, and
within Illinois territorial jurisdiction.

"Under the organic acts, each territory had
three justices appointed by the president for
four-year terms. Sitting together, they constituted
asupreme court; sitting separately, they acted as
district judges. In both capacities they had
jurisdiction over cases arising under United States

or territorial law." E. Pomeroy, The Territories and

10

the United States 1861-1890, Studies in Colonial
Administration 51 (1947). Thus, unlike the state
courts, over which the Federal Government had
no control, the territorial courts were created by
Acts of Congress, with judges appointed by the
President, and were under the general control of
the Federal Government. Ngiraingas v. Sanches,
495 U.S. 182, 189 (1990)

There is no question Petitioner was not tried
in the State, Illinois. As far back as Pennoyer v.
Neff, 95 U.S. 714 (1878), this Court drew a clear
distinction between a court's “competence” and

its jurisdiction over the parties:

‘To give such proceedings any
validity, there must be a tribunal
competent by its constitution - that is,
by the law of its creation - to pass
upon the subject-matter of the suit:
and, if that involves merely a
determination of the personal liability
of the defendant, he must be brought
within its jurisdiction by service of
process within the State, or his
voluntary appearance.’ Id., at 733.

1]

U.S. v. Morton, 467 U.S. 822, 836 (1984)

"It is a longstanding principle of American
law thatlegisiation of Congress, unless a contrary
intent appears, is meant to apply only within the
territorial jurisdiction of the United States." EEOC
v. Arabian American Oil Co., 499 U.S. 244, 248
(1991) (quoting Foley Bros., Inc. v. Filardo, 336 U.S.
281, 285 (1949)).

There is no doubt Petitioner was given a
criminal trial in the United States District Court for
the Central District of Illinois. The case number
itself proves that. There is no doubt this trial was
based upon 18 US.C. § 3231 office of the United
States. Equally, there can be no place in the
United States District Court for the Central District
of Illinois to which the sovereignty of the State,
ilinois attaches. The United States and the State,
Illinois, are sovereign unto themselves. A United
States District and Illinois share no_ territorial

jurisdiction.

The only constitutional place forthe alleged
crimes Committed in the superceding indictment
was to be in the State Illinois where they each
were alleged to have been committed.

Because the criminal trial violated Article III.
Section 2, Clause 3, the Judgment of the United
States District Court for the Central District of
Illinois, and the entire Judgment by the United
States Court of Appeals for the 7™ Circuit should
be vacated for the same reason. |

2. A Judgment is by person and not judge if
there is no territorial jurisdiction for the
United States to stand in adjudication of
any crime committed within the territorial
jurisdiction of a State pursuant to Article Ill,
Section 2, Clause 3

The proposition that the judgment of a
courtlacking jurisdiction is void traces back to the
English Year Books, see Bowser v. Collins, Y. B.
Mich. 22 Edw. IV, f. 30, pl. 11, 145 Eng. Rep. 97 (Ex.
Ch. 1482), and was made settled law by Lord

Coke in Case of the Marshalsea, 10 Coke Rep.

is

68b, 77a, 77 Eng. Rep. 1027, 1041 (K. B. 1612).
Traditionally that proposition was embodied in the
phrase coram non judice, "before a person nota
judge" - meaning, in effect, that the proceeding
in question was not a judicial proceeding
because lawful judicial authority was not present,
and could therefore not yield a judgment.
American courts invalidated. or denied
recognition to, judgments that violated this
common-law principle long before the
Fourteenth Amendment was adopted. See, e.g..
Grumon v. Raymond, 1 Conn. 40 (1814); Picquet
v. Swan, 19 F. Cas. 609 (No. 11,134) (CC Mass.
1828); Dunn v. Dunn, 4 Paige 425 (N. Y. Ch. 1834);
Evans v. Instine, 7 Ohio 273 (1835); Steel v. Smith,
7 Watts & Serg. 447 (Pa. 1844); Boswell's Lessee v.
Otis, 9 How. 336, 350 (1850). In Pennoyer v. Neff,
95 U.S.714, 732 (1878), this Court announced that
the judgment of a court lacking personal
jurisdiction violated the Due Process Clause of the

Fourteenth Amendment as well. Burnham gv.

14

Superior Court of Cal., Marin County, 495 U.S. 604
608 (1990)

Petitioner has reconciled with’ the
appearance the Constitution of the United States
written in 1789, along with the Bill of Rights in 1791,
simply have no meaning in a Court created by
Congress sitting in a_ territorial jurisdiction
capacity. This is why Congress is instructed in
Article lll, Section 2, Clause 3, to Constitutionally
establish the place or places a trial foran alleged
crime is to be held when not alleged to have
been committed within any one of the 50 State of
the Union.

Because none of the Acts allegedly
committed in violation of certain federal laws in
this case were not alleged to have occurred
outside of the territorial jurisdiction of any State,
and because all Crimes are to be tried in the
State where said Crime is alleged to have been
committed, the Judgment by the Chief Judge for

the United States District Court for the Centra!

15

District of fllinois, and the Panel of Judges at the
United States Court of Appeals for the 7" Circuit,
are not judgments atall. Because each lacked
territorial jurisdiction over the acts alleged to have
violated laws of Congress regulating interstate
commerce and interstate taxes, each judgment
is of a person and not any judge.
CONCLUSION

Denny R. Patridge, respecfifully requests this
Court sitting in its appellate jurisdiction, origina!
jurisdiction, or under its authority to render
Judgments void according to the Constitution
and Article itll, Section 2, Clause 3, grant this
Petition to Rehear this case setting the judgment
of both the United States District Court for the 7™
Circuit and United States District Court for the
Central District of Illinois aside and directing the
deprivation of Petitioner's liberty be ceased at
once.

Respectfully Submitted
4.10.08 /s/ Denny R. Patridge

16

CERTIFICATE OF COMPLIANCE

The undersigned certifies that this Petition
for Rehearing is presented in good faith and not
for the purpose of any delay, whatsoever, and is
limited to substantial and controlling issues
involving Article Ill, Section 2, Clause 3, which
requires the trial of all crimes to be tried in the
State wherein the acts violating laws of Congress
were allegedly committed.

/s/Denny R. Patridge

17

In the
United States Court of Appeals
For the Seventh Circuit

No. 06-3635

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

V.
DENNY R. PATRIDGE,
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of Illinois.

No. 04-20031-001—-Michael P. McCuskey, Chief
Judge.

No. 06-3785

DENNY R. PATRIDGE and JUDY PATRIDGE,
Petifioners-Appellants,

V.

COMMISSIONER OF INTERNAL REVENUE,
Respondent-Appellee.

Appeal from the United States Tax Court
No. 1551-06L—Peter J. Panuthos, Judge.

Add.39

ARGUED SEPTEMBER 5, 2007—DECIDED NOVEMBER

14, 2007

Nos. 06-3635 & 06-3785

Before EASTERBROOK, Chief Judge, and WOOD
and EVANS, Circuit Judges.

EASTERBROOK, Chief Judge. Denny Patridge,
who owned an insurance agency, decided to make
life hard for the revenooers by transferring his income
to an offshore trust and then pretending that he had
no income.

The first trust in line, located in Antigua,
transferred everything to a second trust, in Belize. The
second trust transferred the money to a third trust
(also in Belize}, which “loaned” it back to Patridge,
who conveniently never paid interest orrepaid any of
the “debt.” When applying for credit, Patridge
treated the proceeds from Trust #3 as income and
claimed to have no debts. Trust #1 and Trust #2 filed
tax returns, each claiming to have expenses exactly
equal to its income. Trust #3 never filed a tax return.
Patridge himself filed returns in some years, though
notin others, and claimed to have negligible income.

After an audit, the IRS concluded that

Add.40

Patridge’s income was significant and that he owed
$74,279 in taxes for 1996 and $49,836 for 1997.
Penalties took the total to $130,736 (plus interest) for
1996 and $88,675 (plus interest) for 1997. Patridge

refused to cooperate with the audit and did not

contest the deficiency determination and assessment
until learning that a criminal investigation was under
way—and by then it was too late. But when the IRS
tried to levy on his assets, Patridge demanded a
hearing under 26 U.S.C. §6330, which allows taxpayers
to contest the time and manner of payment on a tax
debt. Instead of presenting arguments about how
and when the debt would be paid, however,
Patridge tried to dispute his liability, a subject that
Congress placed off limits to avoid a collateral attack
on matters already resolved. 26 U.S.C. §6330(c) (2) (B).

Told that he could obtain review exclusively in
the Tax Court, Patridge (represented by counsel)
instead filed suit in the United States District Court for
the Central District of Illinois. When, as wasinevitable,
that suit was dismissed for lack of jurisdiction, see
Patridge v. Internal Revenue Service, No. 06-1155

(Nov.13, 2006) (unpublished order), he turned at last

Add.41

to the Tax Court, where his action was doomed by
§ 6330(c}{2) (B).

Meanwhile Patridge had been indicted for tax
evasion, money laundering, and wire fraud. Still
represented by the same lawyer, he dragged out the
jury trial for 13 days but was convicted. He has been
sentenced to 60 months’ imprisonment, fined
$100,000, and ordered to pay his back taxes and
accumulated penalties.

Patridge's brief in the criminal appeal presents
19 issues, all frivolous. Many are in the style of tax-
protest arguments that we might expect from a
layman representing himself but do not expect to see
in a brief filed by a member of the bar. For example,
although counsel concedes that a person who earns
income cannot avoid taxes by appointing it to a third
party—-here, by remitting the income to Trust #1—he
insists that the maneuver may be penalized only if the
taxpayer knows that 26 U.S.C. §7201 is the section of
the Internal Revenue Code that makes the dodge
unlawful.

Cheek v. United States, 498 U.S. 192 (1991),

holds that a peison may be convicted of tax offenses

Add.42

only if he knows that the Code requires him to pay.
The jury was so instructed, and its verdict shows that it
found, beyond a reasonable doubt, that Patridge
knew that he had to pay taxes on what he made
from his business. If is scarcely possible to imagine
otherwise: the system of offshore trusts, and the fictive
“loans,” show that Patridge was trying to hide income
that he knew to be taxable. Why else all this folderol?
Yet Patridge, in common with many other people
who know what the law requires, could not say just
which provisions of the Code make income taxable
and prevent evasion.

For that matter, many tax lawyers (and most
judges) could not rattle off the citations without
glancing at a book. This shortcoming of memory
(perhaps, for Patridge, a deliberate avoidance of
knowledge) prevents criminal punishment, counsel
insists.

But why would this be so? No statute says it; no
opinion holds it. Cheek derived its knowledge-of-law
requirement from the fact that §7201 makes only
“willful” tax evasion criminal. An act is willful for the

purpose of tax law, the Court concluded, when the

Add.43

taxpayer knows what the Code requires yet sets out
to foil the system. Knowledge of the law’s demands
does not depend on knowing the citation any more
than ability to watch a program on TV depends on
knowing the frequency on which the signal is
broadcast.

Patridge insists that the indictment was
premature, and the conviction invalid, because he
was pursuing relief under §6330. This
argument—which like others in counsel's brief lacks
the benefit of either statutory support or any judicial
decision—supposes that the crime of tax evasion is
not complete until the IRS is unable to collect. That's
nonsense. Patridge’s crime entailed the use of three
trusts to conceal his income. It was complete when
these acts were performed and the tax year passed
without payment. Patridge’'s resort to §3660 in an
effort to string out the process may be an
aggravating factor in sentencing but does not
undermine the conviction.

The last of the issues we address is Patridge’s
contention that the Paperwork Reduction Act of 1980,
44 U.S.C. §§ 3501-21, forecloses his conviction. This

Add.44

contention is as weak as the other 18, but it has been
raised in several recent appeals—despite the fact
that it was considered and rejected in Salberg v.
United States, 969 F.2d 379 (7th Cir. 1992)—so we take
this occasion to hold that the 1995 amendments to
the Act do not alter Salberg's conclusion.

Section 3507 provides that an agency needs
the approval of the Office of Management and
Budget to collect information, and §3512(a)(1) adds
that ‘no person shall be subject to any penalty for
failing to comply with a collection of information that
is subject to this subchapter” unless OMB's approval
is evinced by a “valid control number” on the
agency’s demand for information. Per §3507(g), OMB
“may not approve a collection of information for a
period in excess of 3 years.” Patridge observes that
the IRS's Form 1040 has displayed the same control
number since 1981 and argues that it must therefore
represent an approval lasting for more than 3 years.
Moreover, he asserts that the IRS did not obtain a
new approval between the 1995 amendments and
the adoption of forms for tax years 1996 and 1997, so

these forms must be (in counsel's words) “outlaw and

Add.45

bootleg.”

Finally, Patridge contends that all IRS forms are
invalid because they do not tell taxpayers that the
lack of a valid control number means that they need
not supply any information. How any of this could
block a conviction for tax evasion is a mystery.
Patridge evaded taxes by shuffling his income among
trusts in an attempt to conceal it from the IRS. That
crime does not depend on the conients of any form.
Evading one’s taxes is illegal independent of the
information one does or does not supply. Consider
another example: the Clean Air Act requires
businesses to curtail certain emissions using the best
available technology, and to report on those
emissions to the EPA. An error in the EPA's forms might
spare the business any penalties for bad information
but would not license it to emit pollution without limit.

The Paperwork Reduction Act does not change
any substantive obligation. Anyway, as we held in
Salberg, the obligation to file a tax return stems from
26 U.S.C. §7203, not from any agency’s demand. The
Paperwork Reduction Act does not repeal §7203.

Repeal by implication depends oninconsistency that

Add.46

makes it impossible to comply with the newer law
while still honoring the old one, see Branch v. Smith,
538 U.S. 254, 273 (2003); J.E.M. Ag Supply, Inc. v.
Pioneer Hi-Bred International, Inc., 534 U.S. 124, 141-44
(2001), and there is no such inconsistency between
§7203 and the Paperwork Reduction Act. One reason
for this is that §7203 requires a “return” but does not
define that word or require anyone to use Form 1040,
or any “official” form at all. All that is required is a
complete and candid report of income.

Finally, we have no doubt that the IRS has
complied with the Paperwork Reduction Act. Form
1040 bears a control number from OMB, as do the
other forms the IRS commonly distributes to taxpayers.
That this number has been constant since 1981 does
not imply that OMB has shirked its duty. Section 3507
requires periodic review, not a periodic change in
control numbers. Patridge offers us no reason to think
that the necessary review has not been conducted.
The contro! number on Form 1040 appears on OMB's
web site as a current, valid number; if this is wrong, it
takes more than a lawyer’s say-so to establish the

proposition. That OMB didn't re-review Form 1040

Add.47

between the 1995 and 1996 tax year is irrelevant;
nothing in the 1995 amendments says that all existing
approvals become invalid or that all forms must be
resubmitted.

None of the remaining 16 arguments in the
criminal appeal requires comment. The appeal from
the Tax Court is equally frivolous. Section 6330(c} (2) (B)
says point blank that a request for a hearing on the
details of collection does not require (or even permit)
the IRS fo reconsider the taxpayer's substantive
obligations. Patridge could have cooperated with the
audit butrefused; he could have sought review of the
assessment in the Tax Court but failed to do so. The
current proceeding is nothing but obstructionism.

Jeroid W. Barringer represented Patridge at trial,
in the Tax Court, and during the three appeals to this
court. He has performed below the standard of a pro
se litigant; we have serious doubt about his fitness to
practice law. The problem is not simply his inability to
distinguish between plausible and preposterous
arguments. It is his disdain for the norms of legal
practice (19 issues indeed!) and the rules of

procedure. Take, for example, Fed. R. App. P.

Add.48

28(a)(7), which requires every appellant's brief to

contain “a statement of facts relevant to the issues
submitted for review with appropriate references to
the record”. Circuit Rule 28(c) adds: “The statement
of facts required by Fed. R. App. P. 28(a}(7) shall be a
fair summary without argument or comment. No fact
shall be stated in this part of the brief unless it is
supported by a reference to the page or pages of
the record or the appendix where that fact appears.”
So what did Barringer write as a “fair summary without
argument or comment”? Here is the complete text of
his “STATEMENT OF THE FACTS":

This case is about due process and the
Fifth and Sixth. The indictment was
defective and revolved around a theory
of law section 7201 cannot support. The
term “willful” cannot support. There was
no evidence of willfulness regarding
knowledge of the facts and there is no
evidence of willfulness regarding
knowledge of the law required to be
alleged in the indictment and proved
beyond a reasonable doubt at trial. The
Paperwork Reduction Act of 1995 forbid
the indictment from being returned.
There was no fraud in any wire and there
was no laundering of any money from

Add.49

an illegal source. The jury was clearly
confused by the Court's usage of evade
and avoid interchangeably. The District
Court relied upon the wrong Sentencing
Guidelines and found facts to give
Appellant 60 months in prison when the
sentence should have been probation.

This contains not a single fact and verges on
illiteracy. One might think that Barringer had confused
the “Statement of Facts” section with the “Summary
of Argument" required by Rule 28(a)(8), except that
this passage does not contain any argument [it is
argument free. though full of assertion) and is
immediately followed by a six-page long “SUMMARY
OF APPELLANT'S ARGUMENTS".

Noncompliance with Rule 28(a)(7) is not an
isolated problem. To avoid tedious length, we'll limit
ourselves to one more example. Circuit Rule 30(q)
provides: “The appeliant shal! submit, bound with the
main brief, an appendix containing the judgment or
order under review and any opinion, memorandum
of decision, findings of fact and conclusions of law, or
oral statement of reasons delivered by the trial court
or administrative agency upon the rendering of that

judgment, decree, or order."

Add.50

Circuit Rule 30(6)(1) adds that the appendix
also must contain “[c]opies of any other opinions,
orders, or oral rulings in the case that address the
issues sought to be raised. If the appellant's brief
challenges any oral ruling, the portion of the transcript
containing the judge’s rationale for that ruling must
be included in the appendix.” To make sure that
counsel are aware of these requirements, we require
every appellate lawyer to certify in writing that the
brief complies with these rules. Circuit Rule 30(d).

Lack of a statement under Rule 30(d)} tells the
clerk's office that counsel is unaware of the rule, and
the brief will be rejected; but a brief with the required
statement will be accepted, because our staff is not
able to look behind the certificate to determine
whether all of the essential materials have been
included—and they really are “essential,” because
without knowing why the district court did what it did,
we can't assess claims that the court erred.

Barringer’s brief contains this statement: “I,
Jerold Barringer, certify by my signature above | have
included all of the materials required by parts (a) and

(bo) of Circuit Rule 30 in the appendix for the

Add.51

Appellant.” The brief was accepted. Bui the
representation is false—whether deliberately so, or as
aresult of Barringer’s inability to comprehend Rule 30,
we cannot know. The only document “bound with
the main brief” is the judgment of conviction.

None of the district court's opinions and other
explanations is attached to the brief. We eventually
tracked down three that should have been included.
Two concern Barringer's motions to dismiss the
indictment; one denies a motion for a judgment of
acquittal. The district judge’s oral statement of
reasons for the 60-month sentence should have been
transcribed and included but was not. These
omissions Complicated our task of review.

This court regularly fines lawyers who violate
Circuit Rule 30 yet falsely certify compliance under
Circuit Rule 30(d). E.g., United States v. White, 472 F.3d
458, 465-66 (7th Cir. 2006); United States v. Evans, 131
F.3d 1192 (7" Cir. 1997); In re Galvan, 92 F.3d 582 (7th
Cir. 1996). We also regularly penalize unrepresented
litigants who advance frivolous tax-protest-style
arguments. E.g., Szopa v. United States, 453 F.3d 455,
after reconsideration, 460 F.3d 884 (7th Cir. 2006)

Add.52

(setting $4,000 as the presumptive sanction for
frivolous tax appeals, doubled for repeat offenders).
Members of the bar must be held to standards at
least as high as those of unrepresented litigants.

Barringer is a recidivist; he ignored our 2006
decision reminding him that taxpayers cannot use a
request for a collection hearing to contest their
substantive liability. We therefore give Barringer 14
days to show cause why he should not be fined
$10,000 for his frivolous arguments and
noncompliance with the Rules, and why he should
not be suspended from practice until he
demonstrates an ability to litigate an appeal
competently and responsibly. See Fed. R. App. P. 38,
46(b), (c}.

AFFIRMED; ORDER TO SHOW CAUSE ISSUED

A true Copy:
Teste:

Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C 0072—1 1-14-07

Add.53

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0614%3A2. Public record. Not legal advice.