Sat. Aug 8th, 2020

Sean David Morton Expedited Motion for Summary Dismissal for Lack of Jurisdiction 18 usc 287

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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

 

Sean David Morton

 

                  Plaintiff/Petitioner – Appellant, Pro Per

 

  v.

 

United States

 

                  Defendant/Respondent –  
Appellee.

 

 

Case No. 17-50351

 

expedited emergency motion for summary disposition

 

lack of jurisdiction –

18 usc 287

 

Proper for equity and common law like powers in the interest of justice

 

EXPEDITED MOTION FOR SUMMARY DISPOSITION

 

Comes now Sean David Morton, one of the people of California and in this court of record requests expedited summary disposition of the case and judgment against him based on judicial estoppel.  There is no reason to do a full appeal and brief because this case should be tossed out based on simple issues that are full bars and not on the merits.  Justice delayed is justice denied. 

Because this case was brought as part of the DoJ and IRS targeting scandal to suppress Sean’s 1st amendment rights to free expression, right to associate and right to be non-commercial media justice should not be delayed. This court is empowered to use it’s equity or common law like powers to restore Sean’s life, property, rights and interests taken in error with no due process. Sean presented a certified challenge to jurisdiction by a California notary and there is no proper dispute to the challenge of jurisdiction on the record. Sean believes the court proceeded in error because jurisdiction was challenged and not put on the record before proceeding.   

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Article III standing

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  1. Not once was a real and articulate injury alleged, only hypothetical injury was alleged
  2. The non injury was not caused by Sean
  3. The court did not redress any injury or make any victim whole.

To prove standing:

  1. What specific and articulate fact of an injury is stated in the indictment for this offense?
  2. What facts in the indictment support causality that Sean and Melissa caused the harm associated with this offense?
  3. What relief did the victim ask for in the indictment and what did the court do to redress each injury by granting the victim a judgment in their favor for this offense?
  4. What personal interest does the United States have to sue for the class of victim in each offense and where in the indictment is the victim even named?

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Lack of subject matter jurisdiction

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Because the 371 charge is closely interlinked with the two alleged 287 offenses the expedited motion for summary disposition of the 371 offense is incorporated herein by reference.  There are arguments in that motion that prove why this motion should be granted as well.

18 usc 287 (counts 2,3)

  1. A claim that is based on a ‘bad check’ exceeds the scope of the statute (count 2)
  2. An amended claim like in count 2 is in furtherance of resolving the original claim that was complete when the electronic part of the claim was received by IRS and amendments are not in the scope of the statute
  3. The claims are all based on the 1099 oids, which were complete when filed and past the statute of limitations.
  4. The prosecutors concede count 3 is based on the exact numbers in the original claim. The law is clear the claim was complete when the information returns with the 1099 oids were first transmitted by Adams March 6 2009 and past the statute of limitations, correspondence trying to resolve it is not a new claim
  5. Sean only signed the documents without reading them therefore the conduct does not fall in the scope of a false claim.
  6. There is still no proof on the record that IRS is an agency beyond a reasonable doubt.

NO SUBSTANTIAL EFFECT ON COMMERCE

 

Id., 276, 277. The scope of review is restated in Preseault v. ICC, 494 U.S. 1, 17 (1990). Then-Justice Rehnquist, concurring in the two Hodel cases, objected that the Court was making it appear that no constitutional limits existed under the commerce clause, whereas in fact it was necessary that a regulated activity must have a substantial effect on interstate commerce, not just some effect.  

DISCUSSION

Thus, “[t]here may be attempts so feeble … that the attempter is entitled to be acquitted, as a harmless fool.” Coffman, 94 F.3d at 333-34. 

18 usc 287 lack of jurisdiction

 

A claim must be made or presented to fall within section 287. For paper returns, the indictment may charge that the false claim was made by filing a return with the IRS. Although an ELF return is not a complete return until both the electronic portion and the paper Form 8453 are filed with the IRS, a section 287 violation is complete when the electronic portion of an ELF return is received by the IRS. Therefore, ELF indictments should charge the filing or causing to be filed with the IRS of a false claim for a refund of income taxes, without specifying that a “return” was filed.  In short, the paper returns and all correspondence in furtherance of the claims are irrelevant because the whole offense was complete when the electronic claim was presented by Adams sent on March 6 2009, past the statute of limitations.

 

Because both the 287 offenses are based on the original 1099 oid claims Adams sent on March 6 2009, and the prosecutors concede that no other 1099 oid’s were sent by Sean or Melissa, the amendment aided by Hall November 19 2010 and subsequent 843 form asking for the exact same original claim in 2012 is not in the scope of the statute and past the statutes of limitations. United States v. Graham, 60 F.3d 463 (8th Cir. 1995) Multiplicitous to charge the same false statement made on different occasions.

 

Correspondence in furtherance of the claims or adjusting the claims is not the same as presenting the claim, which was complete March 6 2009 by Adams.  The court erred by exceeding jurisdiction and failing to consider that acts n furtherance of resolving the original claim are not in the subject matter of the statute.

It is also well settled 287 offenses expressly do not include the conduct of if a claim is based on a ‘bad check’.  In that case the IRS is supposed to assess a small fee and warn the taxpayer to send a valid payment. Count 2 was based on what the IRS called a ‘bad check’ (made by Hall), therefore subject matter jurisdiction is lacking on count 2 for this and other reasons explained herein.

Note, however, that it has been held that a taxpayer who attempts to pay taxes with a bad check has not filed a claim against the United States. See United States v. McBride, 362 F.3d 360, 369-71 (6th Cir. 2004). In McBride, the Sixth Circuit reasoned that, “[b]ecause [the defendant] never received any advance payments from the government to which he was not entitled, nor could his action of sending the IRS a bad check have possibly elicited any payment from the government, he cannot, as a matter of law, be found liable under § 287.” Id. at 371-72. However, the presentation of a government check by a party who is not entitled to it constitutes a presentation of a false claim within the meaning of the False Claims Act. United States v. Branker, 395 F.2d 881, 889 (2d Cir. 1968) (presentation of a false refund check for payment constitutes the making of a false claim against the United States under Section 287); Scolnick v. United States, 331 F.2d 598, 599 (1st Cir. 1964) (endorsement and deposit for collection of a government check to which the depositor was not entitled constituted a false claim within the meaning of the civil false claims statute, 31 U.S.C. § 231); United States v. McLeod, 721 F.2d 282, 284 (9th Cir. 1983)(same).

The IRS could have been deceived by Adam’s 1099 oid claims transmitted March 6 2009 (past the statutes of limitations) if they are in fact false, however when the allegedly ‘bad check’ for the 2007 return was attempted to cash and allegedly reversed as a ‘bad check’ there was no way IRS would give a refund based on that check, and Kristy Morgan from IRS testified to how IRS did not give a refund based on the allegedly ‘bad check’. 

Furthermore, the court erred by taking the essential element from the jury of whether IRS is an agency.  Sean did bring admissible evidence and entered judicial notice of the Diversified Metal v IRS Commissioner holding where US Attorneys specifically deny that IRS is an agency, but say United States is a proper party to sue.  Having personal interest to sue is very different from being an agency as defined by Congress.  Also Chairman Issa has publically said IRS is not an agency  (see ISSA on IRS: Congress was misled, the American people were misled https://www.youtube.com/watch?v=bx_5rQnSAU4) and even the government witness Mr Kerr first said IRS is an agency but corrected himself to say IRS is a bureau.  287 offenses don’t say bureaus are in the scope, and the judge did not provide a citation to any authority to back up his decision that IRS is an agency in the subject matter of 287 claims.  After diligent search of the two title 26 statutes provided by the government to prove IRS is an agency Sean determines they only say that a revenue officer is an ATF officer (not an IRS agent or officer, which is not addressed in the statutes) and that a private man can sit ex officio with the board of directors, also, that there needs to be a determination of the ‘organizational structure’ of IRS.  Because the question of if United States is an agency for the purpose of the statute is in question and not proved beyond a reasonable doubt the court exceeded jurisdiction and took the essential element from the jury, which denied Sean due process. 

NO MENS REA, KNOWLEDGE OR WILFULNESS

SEAN MAY OR MAY NOT HAVE BEEN MISTAKEN IN LAW, BUT IRS CAUSED HIS CONFUSION BY NEVER RESPONDING TO HELP HIM UNDERSTAND HIS DUTY OR THE LAWS, AND SENT HIM CONTRADICTORY LETTERS

 

PG 47 SENTENCING TRANSCRIPT: MORTON: So by the way, frivolous is not criminal. Somebody sending you something that says this is a frivolous return is not criminal. In every single case when they sent us a frivolous from, we wrote them a letter back saying, Show us how it’s frivolous, show us how we’ve done wrong. And, again, in dealing with these monolithic agencies, nobody wrote us back; nobody responded; nobody told us what to do.

 

Sean never got warning of where the line is crossed into criminality therefore the situation denies due process.  The two letters used to purport Sean had knowledge were civil penalty letters warning of a civil ‘frivolous’ penalty statute dated March 17 2010 for 2005 tax year and November 1 2010 for 2007 tax year (both dates are the exact dates in TIGDA timelines with the IRS scandal where new management was assigned to ‘political cases’, Sean’s 2005 and 2007 returns were delayed over a year like all other victims of targeting during that time from the same Laguna and El Monte offices).  The 2005 and 2007 tax years are zeroed now and not criminal charges. 

The prosecutors correctly alleged a penalty letter was sent on November 1 2010 for the 2007 return asking Sean to fix the return for that tax year. However, what was not revealed by the prosecutors and added to Sean’s confusion, is on the same day the Ogden Utah IRS frivolous determination was reversed by Fresno Chief Examination Branch who wrote Sean to say the return was corrected to owe Sean $1.7 million dollars and then Austin sent a third letter saying the refund will be delayed because of heavy activity (a sign of identity theft) and because IRS alleged Sean didn’t file tax years 2006 and 2008 which is confusing and fantastical because both 2006 and 2008 were obviously filed. Sean was sent a refund for 2008.  To get frivolous and obviously false letters like this from IRS made Sean feel IRS was not believable or trustworthy and certainly created no duty to believe the letters.  Sean wrote IRS to ask what was going on and IRS refused to respond.

The two civil penalty letters that were subsequently reversed and only warned of a civil statute are insufficient to prove knowledge of possible criminal charges, willfulness or mens rea.

 

United States v. Pirro, 212 F3d 86 (2nd Cir. 2000) (affirming dismissal of false tax return count where government’s sole support for its interpretation of tax law was civil cases that were distinguishable).

 

Once IRS calls a taxpayers position frivolous they assert the abusive position they never have to answer your copious letters or help you resolve the problem if you disagree and ask for particulars why.

A showing of mistake, carelessness, negligence, even gross negligence or recklessness, is not sufficient to support a finding of knowledge. See United States v. MacKenzie, 777 F.2d 811, 818 n.2 (2d Cir. 1985)

 

Sean only signed the documents without reading them therefore the conduct does not fall in the scope of a false claim.

The element of mens rea, materiality, willfulness and common law knowledge were not in the jury instructions which denies due process.

DISCUSSION

Sean was a client of Adams and Hall and had no knowledge or willfulness.  The record shows no one in IRS ever read any of the paperwork that is called false documents or claims.  Sean’s documents are not false or deceitful because an opinion of real laws can never be false and he put it all out on the table unabashedly, believing it all to be valid.  Deceitful sneaky fraud and complete openness are two totally different things.  To meet all the elements and have jurisdiction the indictment needed to show deceit in a specific way, not just repeat the statute and make bare assertions.

The indictment is insufficient and should have never gone to trial because there is no substance, no particulars.  The accusations rely on mere bare assertions that the prosecutors knew require hiding known exculpatory evidence that Adams and Hall are really the ones the government should have charged. “a verdict may not rest on mere suspicion, speculation, or conjecture, or on an overly attenuated piling of inference on inference.” United States v. Pettigrew, 77 F.3d 1500, 1521 (5th Cir. 1996). Although the jury may make factually based inferences, “a conviction cannot rest on an unwarranted inference, the determination of which is a matter of law.” United States v. Fitzharris, 633 F.2d 416, 422 (5th Cir. 1980).  To purport that Sean had mens rea and specific intent to cheat and deceive is as unwarranted an inference as it gets.

INVALID INDICTMENT

The indictment does not inform Sean the nature of the charge as mandated by the Sixth amendment, and is not a proper accusation in common law as required by the constitution, customs of men for centuries and Hamdi v Rumsfield, a Supreme court ruling that explains the accused has the right to a traditional common law criminal proceeding with a proper accusation, under oath of a good cause certain.

SUPERIOR COURT OF RECORD

VS

INFERIOR COURT NOT OF RECORD

ARTICLE III JURISDICTION TO FINE AND IMPRISON EXCEEDED

THE COURT NOT OF RECORD EXCEEDED JURISDICTION

A court not of record proceeds by statutes and not by the common law. This is common knowledge yet the prosecutors ridicule this basic rule of law.  The inferior court not of record has no power to fine or imprison.

Because no injured party with standing was given redress for a real and articulate injury the court exceeded jurisdiction by using Article III power in a case where there is no Article III standing and no right to use the inherent judicial power of the courts of record to fine or imprison. 

To overcome this it’s law 101 and the prosecutors know or should know this is the first step before merits.  See the Steelco holding, jurisdiction must always be solved before the merits even if the merits seem easily resolved. 

The prosecutors must prove exactly how an inferior court has judicial power to fine or imprison with no Article III standing and no victim who states a proper claim under oath of a good cause certain that the court makes whole?

notice:

If the prosecutors want an extension they need to provide an affidavit signed under oath of why these simple issues cannot be answered in a timely manner of seven days.  The least the prosecutors can do is to sit down, focus and explain why they should prevail and why this motion should not be granted. If the case against Sean is so airtight and Sean should be imprisoned then it does not take long to explain why.

A man is in prison totally unfairly and impermissibly.  Even one second of loss of a constitutionally protected right is irreparable injury. This expedited motion for summary disposition is about restoring the balance of equity and quickly in the interest of justice. The issues are not rocket science, and the government has had years to become familiar with every fact and the laws. The case against Sean is fully barred due to these issues therefore this motion should be resolved in Sean’s favor without delay.  Justice delayed is justice denied.

First, Sean is clearly be entitled to relief on the merits. There is no “substantial” question for the court to decide. The merits of the case are “so clear” that “plenary briefing, oral argument, and the traditional collegiality of the decisional process will not affect [the] decision.”

Second, there is only one question of first impression in this court, or conflict among the courts on a controlling legal principle, and the issue is not a lynchpin, it could be omitted.  The question is if non-negotiable is an exception to the definition of instrument in 514 and technically it could be resolved by simply referring to Congress definition of instrument in UCC Article 3.  If that issue were to be an impediment to summary disposition then ignore it, because it’s a mere supporting issue that can be a bar to the 514 charges, but is not the main jurisdictional bar and can be easily omitted to focus on speedy remedy.

Third, the record before the court is sufficient to allow meaningful consideration of the appeal. Although the facts may not be entirely simplistic, the court can thoroughly grasp the issues without full briefing or oral argument.

Fourth, Sean has made a showing of exigency. A delay will substantially further harm Sean who claims he is entitled to have his life, property and rights restored.  An expedited schedule for briefing an oral argument will be insufficient to prevent that harm. This is especially true because Sean’s free speech, media, loss of life and property considerations are at stake.  Sean’s imprisonment causes an avalanche of irreparable injury including injuring the public right to have Sean be protected media.  The longer the delay the more the public has cause to distrust the government and think the IRS targeting scandal is above reproach and the courts are not protecting the peoples rights to be free of oppression. Expediting remedy will restore trust in the courts and government after deep abuse and fractures in the system.

Finally, it is efficient and equitable to resolve the case through summary disposition instead of a “traditional” appellate process “with all the trappings.” Sean believes the courts strained resources are better expended on other cases, and that Sean will still receive all of the consideration that it is due on appeal.

United States v. Fortner, 455 F.3d 752,
754 (7th Cir. 2006) (“Summary disposition is appropriate in an emergency, when time is of the essence and the court cannot wait for full briefing and must decide a matter on motion papers alone.”); Groendyke Transp., 406 F.2d at 1162 (summary disposition may be warranted
“where time is of the essence,” including “situations where important public policy issues are involved or those where rights delayed are rights denied”).

I verify the foregoing is true and correct, with firsthand knowledge.

The ninth day of the eleventh month of the year two thousand eighteen

                                         In the interest of justice,

                                                                                             Sean David Morton, all rights reserved