UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Sean David Morton
Plaintiff/Petitioner – Appellant, Pro Per
Case No. 17-50351
expedited emergency motion for summary disposition
lack of jurisdiction –
18 USC 371
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.
Article III standing
- Not once was a real and articulate injury alleged, only hypothetical injury was alleged
- The non injury was not caused by Sean
- The court did not redress any injury or make any victim whole.
To prove standing:
- What specific and articulate fact of an injury is stated in the indictment for this offense?
- What facts in the indictment support causality that Sean and Melissa caused the harm associated with this offense?
- 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?
- 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?
Lack of subject matter jurisdiction
Because the 371 charge is closely interlinked with the two alleged 287 offenses the expedited motion for summary disposition of the 287 offense is incorporated herein by reference. There are arguments in that motion that prove why this motion should be granted as well.
18 usc 371 (count 1)
- The indictment is invalid and insufficient because it is not a proper accusation under oath of a good cause certain. Ie: the element of defraud expands the common law definition but does not limit it. The nine common law elements of defraud are not explained in the indictment. Klein conspiracy must descend to particulars and the indictment is a mere recitation of the statute, which is not enough to give the court subject matter jurisdiction or to state an offense.
- The jury instructions omit mens rea required for subject matter jurisdiction
- The indictment criminalizes first amendment protected letters asking for help and protesting, which exceeds the scope of the statute
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.
NO ABILITY TO DEFRAUD –
THERE WAS NO DECIET OR CONCEALMENT
It is well settled the common law elements apply even if not written into the statute
common law generally identifies nine elements needed to establish fraud: (1) ‘ representation of fact; (2) its falsity; (3) its materiality; (4) the representerʼs knowledge of its falsity or ignorance of its truth; (5) the representerʼs intent that it should be acted upon by the person in the manner reasonably contemplated; (6) the injured partyʼs ignorance of its falsity; (7) the injured partyʼs reliance on its truth; (8) the injured partyʼs right to rely thereon; and (9) the injured partyʼs consequent and proximate injury. See, e.g., Strategic Diversity, Inc. v. Alchemix Corp., 666 F.3d 1197, 1210 n. 3, 2012 U.S. App. LEXIS 1175, at *25 n.3 (9th Cir. 2012)
To successfully allege a claim for common law fraud, a plaintiff must plead each element with specificity and particularity. See, e.g., Baron v. Pfizer, Inc., 820 N.Y.S.2d 841, 12 Misc. 3d 1169(A) (N.Y. App. Div. 2006) (holding that New York law requires a cause of action for fraud be pled with greater specificity than other causes of action (citing Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 57, 720 N.E. 2d 892, 898 (N.Y. 1999))) California courts quote the above fraud elements and cases as the rule of decision in Sean’s domicile.
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.
The 371 charge is not in the jurisdiction because the charge is not on the offense (public) prong which simply needs to prove a specific complimentary offense named in the indictment has met all essential elements. In order for this indictment to be a proper accusation it is important to realize that Sean and Melissa are charged with a Klien conspiracy on the defraud (private) prong of the 371 statute and must descend to particulars.
In criminal tax prosecutions, this conduct is typically charged as a “Klein conspiracy”: the government alleges that the defendant conspired to defraud the United States for the purpose of “impeding, impairing, obstructing and defeating the lawful government functions of the Internal Revenue Service of the Department of the Treasury in the ascertainment, computation, assessment, and collection of the revenue: to wit, income taxes.” United States v. Klein, 247 F.2d 908, 915 (2d Cir. 1957); see also United States v. Cohen, 510 F.3d 1114, 1117 n.2 (9th Cir. 2007)
To be legally sufficient to give the court jurisdiction the indictment must explain precisely what IRS lawful governmental function was substantially affected by what exact conduct. It is a frivolous failure to state an offense to proclaim Sean knowingly and willfully conspired to defraud United States by defeating the lawful governmental functions of the IRS.
This kind of open ended all ensnaring claims are why Klein conspiracy must descend to particulars and inform the nature of the cause. How could Sean and Melissa possibly defeat the functions of IRS when there is a myriad of IRS functions to handle every alleged overt act complained of in the indictment? IRS brought the case to court right? Some lawful governmental functions of the IRS are not even activated unless there is an alleged false claim filed or dispute of lawful positions. This isn’t trivial or sarcastic, its axiomatic that if a man is accused of something it needs to a precise good cause certain under oath and it has to be an offense. Its not a properly stated offense to say all ubiquitous functions of IRS were somehow obstructed or defeated by some overt act which includes exercising constitutionally protected rights to write letters. Its like a trap by saying all functions are affected instead of explain which function is substantially affected and how. The Kaussaf and Minstretta holdings apply to this situation and explain why descending to particulars are so important.
23.07[c] Pleading Requirements
Because of the broad scope of Section 371’s defraud clause, in Dennis v. United States, 384 U.S. 855 (1966), the Supreme Court warned the lower courts to proceed with care in interpreting Section 371 cases: [I]ndictments under the broad language of the general conspiracy statute must be scrutinized carefully as to each of the charged defendants because of the possibility, inherent in a criminal conspiracy charge, that its wide net may ensnare the innocent as well as the culpable.
384 U.S. at 860. The Third Circuit has opined that the courts “must be mindful that [Section 371] is a broad [statute], and that there is a danger that prosecutors may use it arbitrarily to punish activity not properly within the ambit of the federal criminal sanction.” United States v. Shoup, 608 F.2d 950, 955-56 (3d Cir. 1979); see also United States v. Rosenblatt, 554 F.2d 36, 41 n.6 (2d Cir. 1977) (potential for abuse under the defraud clause is much greater than under the offense clause because (1) under the defraud clause, the charge is broader and less precise; (2) the defraud clause expands the scope of conspiracy and, thus, liability for crimes, coconspirators, and admissibility of coconspirators’ declarations; (3) the defraud clause includes more overt acts and, thus, both lengthens the period of the statute of limitations and increases the number of jurisdictions where venue can be laid; and (4) charges under the defraud clause may avoid the limit placed on the penalty for conspiracy to commit a misdemeanor).
Thus, the courts have held that when the government proceeds under the conspiracy to defraud clause, it must plead the “essential nature” of the alleged fraudulent scheme. See, e.g., United States v. Helmsley, 941 F.2d 71, 90-91 (2d Cir. 1991). It is not sufficient for the indictment to simply reallege the language in the statute; rather, it must allege the fraudulent scheme in its particulars. United States v. Rosenblatt, 554 F.2d 36, 41 (2d Cir. 1977). This means that a defraud clause indictment should include (1) the name of the agency impeded, (2) the functions of the agency that were impeded; (3) the means used to impede the agency; and (4) the identities of those charged with impeding the agency. United States v. Mohney, 949 F.2d 899, 904 (6th Cir. 1991).
If this type of open-ended accusation could really be an offense it’s scary because it could criminalize good faith letters and dissent, which is precisely what this is really about. Because the indictment is insufficient as a matter of law by merely repeating the statute and not descending to particulars required for Klein conspiracy the court assumed jurisdiction in error.
Congress expanded the common law definition of defraud to include interfering with governmental functions, but by definition expanding the original common law definition does not limit the underlying common law definition of defraud in any way.
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.
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.
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.
The jury was told they could find Sean and Melissa guilty of 371 if there was an overt act and they were also told they could convict Sean and Melissa if they found they committed an offense, which denies due process by broadening the scope of possibilities for conviction further than the reasons allowed by the indictment and grand jury.
Minarik is applicable because all of the following conditions exist: (1) the government charged a conspiracy under the defraud clause when the facts show that the alleged conduct violated a single, separate federal criminal statute; (2) the government failed to charge the essential nature of the scheme or to detail how the United States was impeded and impaired; and (3) the government constantly changed its prosecution theory and failed to adequately inform the defendant of the charges.
Even if Minarik does not apply, there is a constructive amendment to a charge where there is a clear lack of jurisdiction and the court has a duty to summarily dispose of the 18 usc 371 charge in count 1.
SUPERIOR COURT OF RECORD
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?
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