Petition for Writ of Certiorari — Ross v. United States

Supreme Court, U.S.

FILED

~_

\

\) 94108 7 DEC 1 3199

No OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

JABARI ZAKIYA f/k/a DOUGLAS ROSS,

Petitioner,

V.

UNITED STATES OF AMERICA

Petition for Writ of Certiorari

To the United State Court of

Appeals for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

Pro Se.

Jabari Zakiya

10131 Prince Place, 201

Largo, Maryland 20772-1124

301-336-7782

QUESTIONS PRESENTED

1. Did the circuit court err in not applying all relevant caselaw,

specifically the Cheek decision, in affirming the verdict?

2. Did the circuit court deny the defendant’s 6th Amendment right to

assistance of counsel by removing the Federal Public Defender, at the last

minute, after it had ordered that office appointed as counsel for the

purpose of the appeal?

3. Did the district court err by prohibiting the defendant from calling

and questioning his own witnesses, at his discretion, to establish the

defendant’s state of mind in order to negate willfulness?

4. Did the district court err by allowing the government to proceed

without presenting testimony or other evidence to establish the

defendant’s state of mind in order to prove his alleged willfulness and the

other essential elements of the charges?

5. Did the district court err by prohibiting the defendant from attacking

the evidence and testimony of government witnesses, in a manner similar

to that allowed to other criminal cases, to raise reasonable doubt in the

minds of the jury?

6. Did the district court err in not recognizing the violation of the

defendant’s Sth Amendment due process rights stemming from actions

taken by the government prior to trial?

7. Did the district court err by allowing the prosecution to prejudice the

jury by using testimony and other evidence which occurred outside the

statutory time limit of the alleged charges?

8. Did the district court err by allowing the government to present

physical evidence without corroborating testimony?

9. Did the district court violate the defendant’s first Amendment right

by extending his sentence simply for exercising his right of free speech

and association, or in the alternative, did the district court err by imposing

sentence for semething the defendant was not charged with, tried for, or

found guilty of by a jury?

10. Did the district court err in discriminating against the defendant by

taking arbitrary actions to remove and deny persons of African descent

from serving on the jury?

11. Did the circuit court err in not recognizing the deficiency of the

district court record, even though it was notified that the record was

deficient?

12. Did the district err by ordering trial exhibits to be returned prior to

the appeal process?

13. Did the district court err in impeding the Federal Public Defender’s

attempt to obtain the trial transcript?

14. Did the district court err by allowing the prosecution to prejudice the

jury by using hearsay witnesses, whose testimonies provided no facts

relevant to establishing the essential elements of the alleged charges.

15. Did the district court err by allowing the signing of a W-4 form to

constitute an “affirmative act” in regards to willful tax evasion when

“withholding” can not affect the assessment of a tax liability, or a

deficiency?

16. Did the district court err by prejudicing the jury when it used a jury

instruction purporting facts not established at trial, submitted by the

government at the last minute, and without giving the defendant an

opportunity for prior review?

PARTY TO THE PROCEEDINGS

Petitioner was employed with NASA Goddard Space Flight Center

(GSFC) in Greenbelt, Maryland from May of 1979 to September of 1994,

when he was removed from service by his employer as a result of this

case. He has a B.S. from Corell Univ. and M.S. from GA. Tech in

electrical engineering. He was employed as a GS-13 electrical engineer,

concentrating in digital systems and software design.

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TABLE OF AUTHORITIES

Page

Cases:

Batson v. Kentucky, 476 U.S. 79 (1986) ...c..ce.cescecoscessescsecseesees 11,13

Bull v. United States, 295 U.S. 247 (1935) ...cccscsssesssessseessee 18, 19

Central Illinois Public Service Co v. U.S., 435 U.S. 21 (1978) ...19

Cheek v. United States, 498 U.S. 192 (1991)........s:sssss+s00e- passim

City of Ladue v. Gileo, 512 U.S. _, (1994) ....cecceccscsscecsssessecsesseens 21

Davis v. C.ILR., 184 F.2d 86 (10th Cir 1950) oo... .ceccececccecsecseseeeess 19

Flora v. United States, 362 U.S. 145 (1960)......c.cc.cecsesssscseseeseseee 22

Gideon v.Wainwright, 373 U.S. 335 (1963).........ccccssscsesssessesseeene 1]

Laing v. United States, 423 U.S. 161 (1976)........c.ccccccsessecseseseeeees 19

McIntyre v. Ohio Elections Commission, No. 93-986 (10/94).....21

Powell v. Alabama, 287 U.S. 45 (1932) ....c.cccssscssscsesssssessecesseeeeeees 1]

Ressael v. O5,, SOD UWS. FAP UGG) occas cccsacccsnsecsescccecesneccesscess 14

Sansone v. United States, 380 U.S. 343 (1965) .....c.cccsccessesseeceeseee 8a

Shapiro v. Secretary of State, 499 F.2d 527 (DC Cir 1974).......... 18

NI OE BEF eh MO CID sccterncin estes corsectionscscsoosaisocccause 17,19

Spreckels Sugar Ref. Co. v. McClain, 192 U.S. 397 (1904)......... 18

Toussaint v. C.I.R.,C.A. 5, 1984, 743 F.2d 309 (Sth Cir 1984)...19

United States v. Bass, 784 F.2d 1282 (Sth Cir 1986)...........0..0.00-. 15

United States v. Brodie, 858 F.2d 492, 497 (9th Cir 1988)........... 8a

United States v. Callanan, 450 F.2d 145 (4th Cir 1971) .............. 8a

United States v. Gaumer, 972 F.2d 723 (6th Cir 1992) ..........c..0. 8

United States v. Good Real Property, 510 U.S. __ (1993)........... 18

United States v. Matosky, 421 F.2d 410 (7th Cir 1970)................ 8a

United States v. Powell, 936 F.2d 1056 (9th Cir 1991)..........c..0. 8

United States v. Zolla, 724 F.2d 808 (9th Cir 1984)..........ccceces0e- 18

Statutes and Regulations:

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Pe I siaiein tic viccineiecisicniisccisceDeacaaserienacessdndialanionds 4,2a,6a,8a

26 U.S.C. § 7205 eresoeceseesee ccssessesesenessocneentenens 9,2a,6a

26 C.F.R. § 601.107(a)..... pasinbeaiabiisuneniinniiestestieiai 22,7a

i iirtinrinccncccteitannnntnentiniamnnes 3,13,7a

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26 C.F.R. § 601.401 (a)....... ; peannaliandiatennanasetaieatels 19,7a

United States Constitution:

LTTE: LAER NC: 6,21,24

Sth Amendment.................. eneqveengneneuevenniatnienies passim

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I ee aS 22

|

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

No.

JABARI ZAKIYA f/k/a DOUGLAS Ross,

Petitioner,

Vv.

UNITED STATES OF AMERICA

Petition for Writ of Certiorari

To the United State Court

of Appeals for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

OPINION BELOW

The opinion, dated August 4, 1994, of the Court of Appeals, Appendix A,

and the denial of defendant's Petition for Rehearing, dated September 16,

1994, Appendix B, are unpublished.

JURISDICTION

The decision of the United States Court of Appeals for the Fourth Circuit

was filed on August 4, 1994. A denial for a petition for rehearing was

filed on September 16, 1994. This petition is, accordingly, filed within

the time allowed by law. The jurisdiction of this Court is invoked

pursuant to 28 U.S.C., § 1254(1).

2

STATEMENT OF CASE

In March of 1984 petitioner came to learn and believe, through

reading various books, doing direct research, and after making inquiries

with the IRS, that he was not required by law to have wages withheld

from his pay, or required to file any tax returns.

In March of 1988, after four years of continuous research into the

field of taxes, petitioner made his first public appearance on radio to

discuss the “income tax system” and to present the results of his research.

Since that initial appearance, petitioner has made repeated presentations

on radio and TV shows, some nationally, but primarily in the

Washington, DC area. He also gave seminars, where he presented his

views and the findings of his research on the tax system.

In 1989, petitioner sent a letter to NASA payroll requesting that they

no longer deduct FICA payments from his wages. When NASA payroll

did not comply with his request petitioner sought an opinion from GSFC

Chief Counsel to resolve the issue.

After repeated attempts to schedule a meeting, GSFC Chief Counsel

reluctantly met with petitioner. GSFC Chief Counsel, however, would

not give verbal, or written answers, to any of petitioner's questions, nor

engage petitioner in a discussion of the issues.

After the meeting, GSFC Chief Counsel, unbeknownst to petitioner,

contacted the IRS Chief Counsel Office. It was later learned that this

breach of confidentiality with GSFC Chief Counsel was instrumental in

triggering an investigation by the IRS.

In March of 1990, an article appeared in the Washington Post

featuring petitioner and his views on taxes. Following that, in May of

1990, two agents from the IRS Criminal Investigation Division (CID)

came to NASA GSFC to “interview” petitioner.

Petitioner, after meeting with the CID agents, began writing the CID

agents seeking information regarding the nature of any potential

liabilities, potential charges, and his actions, which warranted

investigation, as allowed by 26 C.F.R. § 601.201(a)(1).

3

Petitioner presented, to the CID agent, his IRS Individual Master File

which indicated petitioner had no tax liability for the years under

investigation. The CID agent blatantly refused to establish how

petitioner could be subject to a criminal investigation when he had not

even been notified of any civil violations, never received a notice of

deficiency, per Internal Revenue Code (IRC) § 6303, nor received

requested records of assessments, per IRC § 6203.

In support of the petitioner’s contentions that he has no liability,

he has not received any notice of assessments or deficiencies, nor has

any of his property been subject to any lien, levy or any other civil

collection action.

In a letter, dated August 30, 1990 [Def. Ex. 5], petitioner wrote to the

CID agent requesting a criminal investigation hearing per 26 C.F.R. §

601.107(b)(2) [Def. Ex. 5A]. In a response, dated September 12, 1990,

from the CID agent, and a letter, dated December 5, 1990, [Def. Ex. 19]

from an IRS Senior attorney, it was affirmed that petitioner would be

afforded a conference if a recommendation for prosecution was made.

In December of 1991 petitioner was notified by CID that the agent

. had recommended that he be prosecuted for attempted evasion of income

taxes for the tax years 1987, 1988, and 1989.

Petitioner's attorney then wrote the CID case agent, and Senior

attorney, on January 21 and February 25, of 1992 requesting a

conference. Petitioner also wrote on March 16, 1992 [Def. Ex. 21]

requesting, again, that a conference be granted.

In a letter, dated March 23, 1992, [Def. Ex. 22] from the IRS Senior

attorney, petitioner was informed he would not be afforded a conference,

and that 26 CFR § 601.107(b)(2) did not relate to his office.

Upon notification of the recommendation for criminal

prosecution, petitioner, and his attorney, made repeated attempts

through the Justice Department, to determine who was assigned the

case and to arrange pre-indictment hearings. No meetings were ever

established. Petitioner, and his attorney, also wrote the Justice

Department and requested notification in the event of grand jury

4

hearings. Neither petitioner, nor his attorney, were ever notified of

such occurrences.

On April 15, 1993, petitioner was notified by his attorney that he had

been indicted of one count of willful tax evasion, per IRC § 7201 for

1987, and three counts of willful failure to file tax returns, per IRC §

7203 for 1987, 1988, and 1989, in the U.S. District Court for the District

of Maryland in Baltimore, Maryland.

Petitioner appeared before a federal magistrate in propria persona to

inform the magistrate he could not ascertain from the indictment the

specific statutory violations he was charged with, and that he had a

motion before the court to establish these factual issues and to determine

if the court had legal jurisdiction over petitioner's person.

The magistrate, after conceding some vagueness in the

indictment, granted petitioner's request for a postponement until the

district court ruled. Another appearance was scheduled.

At the second appearance the magistrate ordered a plea of “not

guilty” entered over petitioner’s continuous explanations that he was not

refusing, but was unable to, plea until the district court judge ruled on his

motion questioning jurisdiction and vagueness of the indictment.

When the plea of not guilty was entered, petitioner was immediately

ordered to appear before the district court judge. With an “escort” of

marshals, petitioner “voluntarily” appeared before the judge. The judge

set a trial schedule and eventually appointed the FPD as standby counsel

in June 1993.

Trial commenced Monday, October 18, 1993 before the District

Court for the District of Maryland. During the eleven day trial the district

court committed many errors and violations of procedures, rules, and

petitioner’s rights.

Petitioner was continually denied the opportunity to sufficiently

cross-examine government witnesses, and was prohibited from

calling and fully questioning his own witnesses, and from present

relevant testimony and other evidence.

5

During the trial the district court also took arbitrary actions to remove

and deny persons of African descent to sit as jurors, and, in addition,

failed to preserve the record for the circuit court to review.

On Friday, October 29, 1993, closing statements were given, and

about 2:30 PM the j my was released to start deliberations. At about 5

the wilifulness instruction, and asked that the instruction be written out.

The judge refused to given a written instruction, and gave another oral

version of the instruction, which seemed more confusing than the first

version.

After the judge orally presented the jury instruction for willfulness on

the second request, the jury was released for the weekend. On Monday,

November 1, 1993 the jury returned a verdict of guilty on all four counts.

Even though petitioner had no prior criminal record, on February 18,

1994, petitioner was sentenced to a recommended maximum sentence of

16 months, and a $25,000 fine.

In March of 1994 the 4th Circuit ordered the FPD appointed counsel

to represent petitioner for the appeal. In May, at virtually the last minute,

the circuit court ordered the FPD relieved from representing petitioner.

Petitioner, with no other reasonable alternatives, preceded pro se.

On June 6, 1994, pro se petitioner filed an informal brief with the

circuit court. In an unpublished opinion, dated August 4, 1994, the

circuit court affirmed the district court verdict.

Subsequently Petitioner secured counsel who was willing to represent

him in a manner consistent with his beliefs and understanding. Through

counsel, petitioner filed, on August 17, 1994, a Petition For Rehearing

with Suggestion for Rehearing In Banc. The 4th Circuit denied the

Petition, with judgment filed September 16, 1994.

6

REASONS FOR GRANTING THE WRIT

This case raises important Constitutional issues which this court

should review and address. The 4th Circuit and the district court

clearly violated the Cheek holdings established by this Court, thus

placing the 4th Circuit and the district court in conflict with Cheek, and

in conflict with conforming rulings of other circuits.

Petitioner was also denied, through various actions of the

government and the courts, the protection of his 1st Amendment rights

of free speech and association, his Sth Amendment due process rights,

and his 6th Amendment rights to present his own witnesses and

testimony, confront opposing witnesses, and for assistance of counsel.

Additional errors of the court include the presentation of prejudicial

jury instructions and racially discriminatory actions which excluded

African citizens from sitting on the jury.

E 4th Circuit

1. The 4th Circuit Opinion is Inconsistent with the Cheek Decision

The circuit court makes virtually the same error in raising the

issue of the content of petitioner's defense that was ruled upon in Cheek

v. United States, 498 U.S. 192, 111 S.Ct. 604, (1991).

The Cheek court ruled that a good faith misunderstanding of the law

or a good faith belief that one is not violating the law negates willfulness,

whether or not the claimed belief is objectively unreasonable. Statutory

willfulness, which protects citizens from prosecution for innocent

mistakes made due to the complexity of the tax laws, is the voluntary,

intentional violation of a known legal duty.

Thus, if a jury credits a defendant's assertions, the government will

not have carried its burden to prove willfulness, even if the district court

deems such beliefs unreasonable.

The opinion regarding petitioner's alleged use of voluntariness of the

tax laws as “not a defense to those charges” characterizes petitioner's

belief from what is normally a factual inquiry, to be judged by a jury, into

7

a legal one, thus ignoring petitioner's right to present testimony to a jury

for its consideration.

The opinion thus errors in the same manner Cheek eloquently

ruled against, an error petitioner raised in his informal appeal. The

appellate court clearly ignores Cheek in dismissing petitioner's right

to present facts to a jury for their evaluation, and not the court's, in

determining the essential element of willfulness.

Petitioner filed a Renewed Motion For Judgment of Acquittal, which

cited the misapplication of Cheek. It documented how petitioner was

denied the following rights and opportunities:

A. the opportunity to present sections of the IRC, books excerpts,

court decisions;

B. his right to present, to the jury, the contents of his own

copyrighted paper concerning the current tax system and his book

manuscript concerning an alternative tax system;

C. the opportunity to question his own witness, who was helping

with the editing and marketing of his manuscript, about his state

of mind as to why he wrote his paper, and his efforts to get his

book published; and

D. the right to compel a witness to testify through a subpoena, or to

allow an affidavit from this witness to be presented to the jury for

their consideration.

Therefore, the appellate court should have had in the record this

motion which details the trial court's denial of petitioner's right to

present information to the jury to establish his state of mind to

negate willfulness, in violation of Cheek.

2. 4th Circuit Opinion Conflicts with the 6th and 9th Circuits

The 4th Circuit's unpublished opinion is clearly in conflict with the

ruling of other circuits regarding these exact case issues.

8

In United States v. Powell, 936 F.2d 1056 (9th Cir 1991) the wife and

husband defendants convictions for willful failure to file tax returns were

overturned by the 9th Circuit for violating Cheek.

The Powells, who were pro se, had been prevented from Stee

evidence at trial, specifically the language of 26 U.S.C. § 6020(b). The

9th Circuit found prejudicial error in the trial court's exclusion of

just this one section, because such exclusions had the effect of

forbidding the jury to consider evidence that might negate willfulness.

The 9th Circuit also held, the general rule that the district court does

not abuse its discretion when it does not allow a defendant to present law

to the jury, must give way when a defendant's 6th Amendment rights

hinge on admission of the law. The statute, which the Powells had relied

upon to form their belief that the tax system did not require them to file

an income tax return, was relevant to, and probative of, the issue of

willfulness. This was one of the grounds for reversal.

Similarly, in United States v. Gaumer, 972 F.2d 723 (6th Cir 1992),

the 6th Circuit held that Gaumer, also a pro se litigant, was entitled to

admit into evidence legal materials which he claimed supported his

beliefs that he was not required to file income tax returns, evidence which

was relevant to the issue of willfulness.

The 6th Circuit specifically held that the trial court was not required

to permit into evidence exhibits comprising hundreds of pages. However,

at a minimum, Gaumer should have been allowed to read relevant

excerpts to the jury. That is, Gaumer should have been allowed to

present the contents of the exhibits to the jury to the extent that the

material was relevant to establishing a basis for his state of mind.

Thus, Cheek is controlling, and two other circuits have followed

suit. The 4th Circuit's unpublished opinion not only disregards the

holdings in Cheek, and asserts an erroneous basis of analysis in

regards to petitioner's 6th Amendment right to present a defense that

is to be ultimately judged by the jury.

9

3. The 4th Circuit Opinion Errors in Stating the Conviction

The appellate opinion errs in stating petitioner was convicted of

filing a false withholding exemption certificate in violation of 26

U.S.C. § 7205(a) and (b). (Appendix E)

The original indictment mistakenly cited that charge in its caption,

but the court docket of May 12, 1993 clearly records the amending of the

indictment by the government to strike the reference of that charge from

the indictment and to change the name of petitioner to Jabari Zakiya.

Petitioner was never indicted, tried or sentenced on that charge.

The appeals court statement reflects negligence in their review of

the factual matters in the record, and a transmittal by the district

court of an incomplete or false record which has prejudiced

petitioner.

4. The 4th Circuit Opinion Errors in Stating Defendant's Beliefs

The circuit court errs in stating petitioner’s beliefs, ignores his

presumption of innocence, and 6th Amendment protected rights.

The opinion stated petitioner “admits to all of the conduct

establishing the criminal offenses with which he was charged ...” This is

error, in complete opposition to petitioner's position at trial, and can in

no way be inferred, let alone established, by a review of the court record.

At no time did petitioner admit to any of the essential elements. A

complete record would establish that petitioner was adamant in not

making stipulations of any kind.

that charge. (Appendix E)

The opinion continues to state, “...his beliefs regarding the

voluntariness or legality of the federal income tax system are not a

defense to those charges.”

10

Again, the appeals court is in error in characterizing the nature of

petitioner's defense thereby placing a nonexistent burden upon petitioner

to prove his innocence, in violation of the Constitution.

An accused is innocent until proven guilty, and has no requirement to

testify. It is the government's burden to establish guilt beyond a

reasonable doubt, not a defendant’s to establish innocence. In the

absence of affirmative proof of guilt, a defendant is entitled to a not-

guilty verdict, even if he presents no evidence of his innocence.

The reasoning stated by the Court thus violates petitioner's 6th

Amendment protected rights, ignores petitioner's presumption of

innocence during the trial, and unburdens the government from its

requirement to establish at trial guilt beyond a reasonable doubt.

5. Insufficiency of Record Presented to the Circuit Court

It was error for the 4th Circuit to dispense with oral arguments

on the grounds that “the facts and legal contentions are adequately

presented in the materials before the Court and argument would not

aid the decisional process.” A review of the facts concerning this case

does not substantiate that finding.

The circuit court did not have the benefit of the trial transcript to

analyze in conjunction with appellant's informal brief. The circuit court

was also without the benefit of the trial exhibits, as the district court

ordered all exhibits returned to the parties at the end of the trial.

Therefore, it is factually inaccurate that the circuit court had an adequate

record.

The trial judge's orders directly prevented the formation and

transmittal of a complete record for the circuit court to review. Oral

arguments, under these conditions, would be virtually required to

establish and present to the circuit court missing pieces of the trial record

which were unavailable in the record sent by the lower court.

Because of the foregoing, a full record of the trial was not

developed and presented to the circuit court. Without a review of the

full record the circuit court could not have evaluated the evidence

11

and facts on which key issues reside. Petitioner had thereby been

prejudiced.

6. Denial of Assistance of Counsel

Petitioner’s 6th Amendment right to assistance of counsel was

denied by the circuit court for the purpose of filing an appeal.

Petitioner proceeded pro se at trial, with the FPD appointed by the

district court as standby counsel. After the trial, the circuit court ordered

the FPD appointed to represent petitioner for appeal.

The FPD, as counsel, submitted an order for the preparation of the

trial transcript, which was denied by the trial judge. Subsequently, the

FPD inquired of the circuit court for guidance as to how to proceed to

represent petitioner under these exigent circumstances. The circuit court,

thereafter, issued an order in May 1994 relieving the FPD as counsel.

Petitioner, stripped of counsel, proceeded pro se while attempting to

secure competent counsel. With encroaching time periods eminent, and

unable to secure competent counsel on short notice, petitioner filed an

informal brief, without benefit of a trial transcript or all court exhibits.

The manner and timing behind the circuit court's order

removing the FPD as previously designated counsel, violated

petitioner's 6th Amendment right to assistance of counsel at all stages

of proceedings, a principle upheld in Gideon v. Wainwright, 372 U.S.

335 (1963) and Powell v. Alabama, 287 U.S. 45 (1932).

E ( the District Court

7. Actions Constituting Racial Discrimination of Jury Composition

The trial court actions excluded jurors of African descent from

sitting on the jury, in a racially discriminatory manner in violation of

Batson v. Kentucky, 476 U.S. 79 (1986) and its progeny.

12

One of the three African jurors (all female), was struck from the jury

when, it was reported, she called the court about 8 AM on the Monday of

the second week of the trial and stated that she could not be in court at the

appointed time, 10 AM, because her roommate's daughter had been

missing over the weekend. The AUSA moved the court to replace her.

The trial judge struck the juror against petitioner's objections. She was

replaced with a white female, the first of two alternates.

Petitioner called that juror later that night and learned that she had

called the court about 9:30 AM and informed them the problem had been

resolved and that she could report, but it would be after 10 AM, since she

lived about 90 minutes away. She stated she wanted to serve, since she

had never been on a jury, and it was interesting.

Thus, the court clerk, and judge's chambers, should have had this

information before 10 AM. At most, there only needed to be a delay in

the trial starting time to allow the juror time to get to court. No

accommodation was given to allow this juror to continue to sit.

This is contrasted against the events of two days later. The judge, on

Tuesday, proclaimed the jury would be held late into the evening, till 8 or

9 PM, in order to finish the trial before the next week. He specifically

stated he would allow no interruptions in the trial which would cause any

delay in its completion.

The day after this proclamation, Wednesday, a white juror, after a

short recess, could not be found on reconvening about 5 PM. It was later

determined he was seen leaving the court building and left no word of his

whereabouts or when he would return.

At about 5:30 PM petitioner moved the court to sit the remaining

alternate juror, who was an African male. The government objected,

citing this would exhaust the alternates. Petitioner immediately cited the

judge's prior day proclamation allowing no interruptions, his prior action,

and the fact this was delaying petitioner's defense.

13

This act incontrovertibly excluded the Black male alternate from the

jury, composed at the time of 10 Whites and 2 Black women. There is no

logical or procedural reason why this alternate should not have been

seated, except to deny and limit composition of the jury from another

member of petitioner's race.

This judge's action violated his own stated policy, created an

unnecessary delay in the trial, and violated the Supreme Court's

clear mandates established in Batson v. Kentucky, 476 U.S. 79 (1986),

et al, against racially discriminatory exclusionary jury practices.

8. Violations of Defendant's 5th Amendment Due Process Rights

Petitioner was continually and consistently denied his due process

rights at various junctions, and through various forums, in this case.

Example 1.

Petitioner continually wrote the CID agent to set up meetings to get

information regarding the nature of the alleged criminal behavior

under investigation. Petitioner wrote the CID agent [Def. Ex. 5]

requesting a district criminal investigation conference per 26 CFR §

601.107(b)(2). A Senior attorney responded [Def. Ex. 19] “...your

case will be reviewed by this office before a decision is made

whether to refer the case to the Department of Justice. During our

review, you will be afforded a conference.” (Emphasis added.) When

the case was recommended to Justice, the CID responded [Def. Ex.

22], “Although my previous letter advised that our District Counsel

office would afford you a conference, it was subsequently determined

that a conference would not be offered.” (Emphasis added.) The

regulation is clear, a conference can be requested by either party.

The government's refusal to provide petitioner a conference denied

petitioner notice. He was not afforded the opportunity to acquire

relevant information in regards to the nature of the facts, figures, and

other essential elements of the proposed criminal charges against

him. Said denials violated petitioner's due process rights and negated

access to administrative remedies. These denials also violate the

spirit, and law, of the Taxpayer's Bill of Right's of 1988, which was

passed to protect citizens from unwarranted IRS conduct. The district

14

court erred in not finding the IRS acted to deny due process, and/or

access to administrative remedies.

Example 2.

Defendant, and his attorney, continually attempted to determine when

a grand jury would be convened. They wrote the Justice Department

specifically requesting such notification. A grand jury was convened,

and returned an indictment against petitioner, but neither petitioner

nor his attorney were notified. The government's failure to respond to

petitioner, and his attorney, violated his due process and 6th

Amendment rights. Petitioner has obviously been irrefutably injured

by his denial to address the grand jury, thus depriving the grand jury

of his testimony, which could have negated a return of an indictment..

Example 3.

The district co .c denied defendant's motion for a Bill of Particulars,

even thour’s the Federal Magistrate who presided over the

“arraigr .ent” explicitly acknowledged the vagueness of the

ind’ .ment, which was subsequently amended three times, and stated

‘... you may file a motion for a bill of particulars to require the

government to be more specific on the charges.” This Court has

ruled in Russel v. U.S., 369 U.S. 749 (1962) that an invalid indictment

can reverse a conviction. The government should have been required

to remove the vagueness of the charges, highlighted by the circuit

court’s misstatement of the conviction, and because petitioner was

denied access to the grand jury, or its records. The district court

clearly erred in not granting petitioner’s motion for a Bill of

Particulars to eliminate acknowledged vagueness of the charges.

Example 4.

The district court allowed the government to raise issues and present

testimony regarding events which occurred outside the time frame of

the charges, i.e. outside the period 1987--1989. The government was

allowed, for example, to raise issues of petitioner’s political interest

in DC statehood and reparations for Africans in America. It was

never shown how these activities could have affected, retroactively,

petitioner’s state of mind, or the other essential elements of the

charges, in the 1987--1989 period. Petitioner was also never indicted

of these activities constituting criminal offenses, yet they were used

—o——EEs

15

to prejudice the jury. This constitutes a denial of due process since

these issues were totally irrelevant and raised only to bias the jury.

9. Violations of Defendant's 6th Amendment Rights

The consistent denial of the opportunity for petitioner to

sufficiently cross-examine government witnesses to raise reasonable

doubt to their testimony, and evidence presented, constituted a

violation of petitioner's 6th Amendment right to confront and

question witnesses against him.

The government presented witnesses to provide testimony and

introduce evidence to allegedly establish facts to prove to the jury each

essential element of each charge -- beyond a reasonable doubt.

A defendant has a 6th Amendment protected right to confront and

question witnesses. Government witness testimony, therefore, must stand

up to the scrutiny of cross-examination, to prove and sustain beyond a

reasonable doubt the essential elements of each charge.

Failure of the government to produce evidence to prove each

essential element (Appendix D) of each charge constitutes grounds for

dismissal for lack of sufficient evidence, if any one element is not proved.

United Sates v. Bass, 784 F.2d 1282 (Sth Cir 1986).

The record is clear that the trial judge continually denied petitioner

the opportunity to sufficiently cross-examine government witnesses in

order to raise reasonable doubt in the minds of the jury with respect to the

witnesses’ testimony and evidence presented.

Such denials prevented petitioner from cross-examining government

witnesses on their knowledge of the Internal Revenue Code, the Internal

Revenue Manual, court decisions, internal procedures, and other relevant

areas of questioning.

This puts petitioner in the position of being accused of knowingly

violating complex tax laws he allegedly understood, without the

government witnesses ever having to prove that they knew and

16

understood these complex tax laws and that they followed required

procedures.

In capital offense and drug cases, for example, it would be

unquestioned that a defendant could attack government witnesses,

including expert witnesses, regarding the accuracy of their testimony,

their knowledge of facts, and adherence to procedures.

Failure of the district court to allow petitioner to sufficiently

cross-examine government witnesses to raise reasonable doubt to

their testimony, and evidence presented, constituted a denial of

petitioner's 6th Amendment right to confront and question witnesses

against him.

In addition, the district court erred in allowing the government to

admit into evidence purported Certificates of Assessments, supposedly

created in 1993 by the IRS Philadelphia Service Center without requiring

the government to present a witness to testify to their authenticity.

This act by the district court, not only denied petitioner his right to

confront and question witnesses, it severely prejudiced the jury by not

allowing any discussion on what these documents were purported to

represent and whether they were accurate in that purported

representation.

The record also establishes that pO BO ee Am

with respect to either willful tax evasion or willful failure to file a tax

return.

Clearly, no IRS witness could testify to the element of willfulness,

since no IRS witness knew petitioner, and thus could not directly assess

his state of mind. A key government witness who had direct contact with

petitioner, NASA GSFC Chief Counsel, was prevented by the trial judge

from being cross-examined concerning his on-the-record opinion of

petitioner's sincerity with respect to his positions, beliefs and

understanding regarding the tax system. This also clearly violated

Cheek,

17

The government even avoided presenting petitioner's own words as

evidence against him. There was a voluminous written, audio and video

tape record in their possession, through discovery. If there was a

ided j itioner’ iced maiians,

Since the government failed to produce any witnesses or

evidence, including petitioner's own words, to establish that

petitioner had an intent to violate any tax law, they did not meet their

burden of establishing willfulness.

Therefore, the government witnesses were only testifying in an

attempt to establish the other essential elements of each charge, which are

with respect to willful evasion: 1) establishing a tax deficiency and 2)

establishing an affirmative act; and with respect to willful failure to file:

1) proving the defendant was required to file a tax return, and 2) proving

that the defendant failed to file.

In order for the government witnesses’ testimony to be relevant with

respect to essential elements #1 and #2 under each count their testimony

must have addressed certain specific facts.

With regards to the essential element #1 of willful failure to file, no

government witness presented any evidence to establish the statutory

basis, such as IRC § 6011, which would create a requirement for

petitioner to file any tax return. Petitioner, as stated, was denied the

chance to illicit this information from the IRS witnesses.

If the IRS agents and attorneys did not know the statutory basis which

would create a requirement for petitioner to file a tax return, then who

should know?

The government also failed to establish essential element #2 of

willful failure to file, which would only have relevancy if the first

essential element was proven. As Spies v. U.S., 317 U.S. 492 (1943)

establishes, not doing something (omissions) does not constitute criminal

conduct. Proof that one is subject to a requirement to act must exist in

order to prove one “failed” to act. Absent the presentation of evidence,

the government clearly has not met that burden.

18

This Court has already established that a citizen can not be presumed

to have a requirement.

Keeping in mind the well settled rule, that the citizen is exempt

from taxation, unless the same is imposed by clear and

unequivocal language, and that where the construction of a tax is

doubtful, the doubt is to be resolved in favor of those upon whom

the tax is sought to be laid. Spreckels Sugar Refining Co. v.

McClain, 192 U.S. 397 (1904).

With regards to the essential element #1 of tax evasion, no

government witness presented any evidence to establish the existence of a

tax deficiency for the tax years 1986 and 1987. These are clear

requirements per IRC §§ 6303 and 6212.

Also, no evidence was presented, in violation of prior holdings, to

establish petitioner was ever sent a notice of deficiency and allowed the

opportunity to contest such alleged deficiency in Tax Court or anywhere

else, pursuant to IRC § 6213. Caselaw has consistently upheld these

statutory provisions. Bull v. United States, 295 U.S. 247; United States v.

Zolla, 724 F.2d 808; Shapiro v. Secretary of State, 499 F.2d 527; and

even U.S. v. Good Real Property, 510 U.S. __ (1993).

Finally, the government presented no evidence to establish essential

element #2, an affirmative act, to prove evasion. The allegation of filing

a false and fraudulent W-4 can never constitute a basis for an affirmative

act under Subtitle A, for the reasons in the following section (#10).

10. Submitting a W-4 Can Not Constitute an Affirmative Act

The district court erred in allowing the W-4 to be admitted into

evidence to establish the only alleged affirmative act because it has

no effect on determining an “income tax” liability or deficiency.

The government produced a W-4 form signed by petitioner and filed

with NASA on January 9, 1987. Petitioner submitted the W-4 only after

GSFC payroll called and told him if he wanted to remain Exempt (since

1984) from withholding, he had to complete a new W-4 by February 15,

1987. The government claims the form was fraudulently filed and cited

it as the only affirmative act of evasion, necessary to sustain the charge.

19

“Fraud implies bad faith, intentional wrongdoing and a sinister

motive and is never imputed or presumed and a court should not sustain

findings of fraud on circumstances which at most create only suspicion.”

Davis v. C.I.R., 184 F.2d 86.

The government must also present clear and convincing evidence to

= prove fraud, and show how some portion of the established tax deficiency

was created by the fraud. Toussaint v. C.LR.,C.A.5 1984, 743 F.2d 309.

The government produced no tax return or record of assessment,

to prove petitioner had a deficiency for 1986 or 1987. This court has

ruled in Laing v. United States, 423 U.S. 161 and Bull, supra, that a

deficiency must first be established before evasion can be charged.

Spies also ruled that an “affirmative act” must show concealment,

be shown to reduce what would be the true assessment, and be proven to

be done with that specific intent, versus innocent error or neglect.

Petitioner introduced at trial [Def. Ex. 13] his Individual Master File,

| a_ copy of the IRS’s own computer records, which indicated he had

neither a tax liability nor deficiency for 1986, 1987, 1988, or 1989.

Also, liability for employment taxes withheld under IRC § 3402, in

Subtitle C, are imposed as requirements upon employers and not

employees. This Court has recognized that taxes imposed upon wages

under Subtitle C are distinct and separate from the income tax imposed

under Subtitle A.

“Decided cases have made the distinction between wages and

income and refused to equate the two in withholding or similar

controversies...” Central Illinois Public Service Co v. U.S., 435

U.S. 21, 31 (1978)

Further, 26 C.F.R. § 601.401(a) explicitly states that wages withheld

during the year are used as a credit for employees against their

soteianne’ income tax liabilities. ae eae en ee

20

It is thus clear that “withholding taxes” in relation to a W-4, are

imposed on an employer under Subtitle C, and cannot affect a tax

imposed under a separate mechanism for Subtitle A, on an individual.

These are clearly separate and distinct classes of taxes, as are subtitles B,

estate & gift taxes, D, miscellaneous excise taxes, and E, alcohol &

tobacco taxes.

Removing the citation of the W-4 as an affirmative act renders

the willful evasion charge insufficient for lack of an affirmative act.

The district court erred in allowing the W-4 to be admitted into

evidence to establish the only alleged affirmative act.

Therefore, the government’s IRS witnesses could only present

testimony and evidence to prove essential elements #1 and #2 of each

count, since no IRS witness could testify to willfulness. If that was not

their purpose and effect, their testimony was irrelevant and

prejudicial, and should not have been allowed.

The government’s non-IRS witnesses could never testify to essential

elements #1 and #2 of each count, since they had no knowledge of facts,

or authority, to make those determinations. Therefore, their purpose could

only have been to testify to petitioner's state of mind to establish

willfulness; if not,

irrelevant, and should not have been allowed.

Since these witnesses had no relevancy in establishing any essential

element of each charge the government failed to meet its burden of proof

to establish every essential element of every count in order to sustain a

verdict of guilty.

If the government can merely allege charges in an indictment and not

be required by the district court to produce any evidence to prove the

charges, why have trials?

The district court thus erred in not granting petitioner’s request for

judgment of acquittal, made on three separate occasions, for lack of

evidence to sustain the charges alleged.

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11. Errors in Sentencing

The trial judge violated petitioner’s Ist Amendment right of free

speech and due process by sentencing him to additional time for

engaging in Constitutionally protected activities.

At sentencing the trial judge essentially made the statement, “If it was

left up to him, I would sentence you to 14 months, but because you

appeared on radio and TV I will sentence you to the government's

recommendation of a maximum of 16 months.”

This is an explicit acknowledgment that petitioner was given

) additional punishment for exercising his 1st Amendment protected right

to freedom of speech. Appearing on radio and TV is not a crime!

Petitioner was also not charged with those activities as being “crimes.” It

is a violation of a citizen's Constitutionally protected right to free speech

to be punished by a court for exercising that right.

This statement by the judge, along with the prior statements by the

AUSA concerning petitioners “influence” on people, highlights the

government's motivation to try and punish petitioner not because of

alleged “criminal” behavior but because of their concern that petitioner's

seminars and radio and TV appearances were effective in providing the

American public previously unknown information for them to evaluate

and consider regarding the “income tax” system.

This, of course, is exactly why the Ist Amendment is the first one. It

allows citizens, not the government, the power to decide what to read,

hear, see and consider, without influence and control by the government,

whose job is to protect the exercising of all rights.

This question of the government's power to punish citizens for

exercising their 1st Amendment rights has been recently ruled on in City

of Ladue v. Gileo, 512 US. __, (1994) and is currently under

consideration in McIntyre v. Ohio Elections Commission, No. 93-986.

Therefore, the imposition of an additional sentence for

petitioner's free speech activities constitute a violation of his Ist

Amendment rights. Also, sentencing petitioner for something he was

22

not indicted of, tried for, or found guilty of by the jury violates his

right to due process.

12. Illegal Jury Instructions

The trial judge gave jury instructions which violated Cheek,

contradicted prior holdings of this Court, contradicted the

government’s own evidence, and ignored and/or conflicted with

various statutes.

The trial judge read, essentially verbatim, a government jury

instruction, not made part of their proposed instructions, and which was

never reviewed by petitioner. This instruction erred as follows:

a) The instruction stated the IRC establishes “the tax system is

not a voluntary system.” This contradicts 26 CFR § 601.107(a)

and the government's own evidence [Gov. Ex. 16a] wherein an

IRS spokesman was quoted, “The current system is described as

voluntary. You complete the tax forms, no one tells you what the

tax is.” This statement also contradicts this Court in Flora v.

US., 362 U. S. 145, 176 et when it — prog enone

watt mpi detail? (Emphasis added) rn

b) The instruction stated “wages are taxable within the meaning

of the 16th Amendment” and § 61(a) of the code defines “gross

income” derived from all sources, including wages. The word

“wages” is not in the 16th Amendment, and § 61(a) makes no

reference to “wages” as a source of “gross income.”

c) It also stated the Secretary of Treasury is not required to assess

taxes on individuals before they are due and owing. Sections

6203 and 6303 clearly cite the statutory requirements placed

upon the Secretary with respect to tax assessments and notice.

d) This instruction, however, agrees with petitioner that § 3402

places a requirement on employers, and not employees, but

doesn’t explain that a failure to withhold can pertain only to

23

employers, and thus can not be alleged as an affirmative act for

willful evasion on an individual for “income taxes.”

¢) The court also gave a “closing of the eyes” instruction, which

alluded to what petitioner should have known. This constitutes a

violation of his due process rights as it raises prejudicial

speculation of issues not specifically presented at trial.

The way this instruction was presented, and its contents, is so

extreme and egregious, it alone constitutes grounds for a mistrial.

Also, the manner in which this jury instruction was presented by the

AUSA should be cause for sanctions, and the trial judge’s acceptance of

it should be cause for judicial review.

24

CONCLUSION

This case raises important Constitutional issues which this court

should review and address. The 4th Circuit and the district court clearly

violated the Cheek holdings established by this court, thus placing the 4th

Circuit and the district court in conflict with Cheek, and in conflict with

conforming rulings of other circuits.

This case also raises other Constitutional issues with respect to

denials of petitioner’s 6th Amendment protected right to confront

opposing witnesses, to call and question his own witnesses, and to present

his own testimony without interference from the district court. The case

also raises questions concerning the government’s burden to present

evidence to prove all the essential elements of each charge.

This case also raises further Constitutional issues with respect to

denial of petitioner’s 1st Amendment protected rights of free speech and

association, and denial of petitioner’s Sth Amendment protected right to

due process. Additional issues raised concern prejudicial jury

instructions, and racially discriminatory jury exclusions by the district

court.

For the foregoing reasons, the petition for a writ of certiorari to the

United States Court of Appeals for the Fourth Circuit should be granted.

Respectfully submitted,

Pro Se

Jabari Zakiya

f/k/a Douglas Ross

10131 Prince Pl. #201

Largo, MD 20772

301-336-7782

December 13, 1994