5a Fifth Circuit Appeal Record
Content
Case No. 14-20333
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
On Appeal from the United States District Court
For the Southern District of Texas
Houston Division, Civil No. 4:14-cv-00027
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOHN PARKS TROWBRIDGE, JR.,
Defendant-Appellant
BRIEF FOR APPELLANT JOHN PARKS TROWBRIDGE, JR.
John Parks Trowbridge, Jr.
PRO SE
9816 Memorial Blvd. #205
Humble, Texas
Telephone (281) 540-2329
Telefacsimile (281) 540-4329
CERTIFICATE OF INTERESTED PERSONS
Case No. 14-20333
On Appeal from the United States District Court
for the Southern District of Texas
Houston Division, Civil No. 4:14-cv-00027
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN PARKS TROWBRIDGE, JR.,
Defendant-Appellant.
I, John Parks Trowbridge, Jr., hereby certify that the following listed persons
and entities as described in the fourth sentence of 5TH CIR. R. 28.2.1 have an
interest in the outcome of this case. These representations are made in order that
the judges of this Court may evaluate possible disqualification or recusal in this
appeal.
1.
United States of America – Plaintiff-Appellee
As represented through counsel:
Carol A. Barthel and Robert Joel Branman, Esq.
2.
John Parks Trowbridge, Jr. – Defendant-Appellant
Counsel below:
3.
United States Attorney (Houston)
Kenneth Magidson, for Plaintiff
4.
Litigant: Assistant United States Attorney (Dallas)
Joshua D. Smeltzer, for Plaintiff
5.
Montgomery County Taxing Authorities
Lori Gruver, Linebarger Goggan Blair & Sampson, LLP (Austin), for
Defendant
i
Trial court judge:
6.
Southern District of Texas, Houston Division
Lynn N. Hughes
I know of no other persons, associations of persons, firms, partnerships,
corporations, guarantors, insurers, affiliates, parent corporations, or other legal
entities who or which are financially interested in the outcome of the litigation.
_________________________________
John Parks Trowbridge, Jr.
9816 Memorial Blvd. #205
Humble, Texas
Telephone (281) 540-2329
Telefacsimile (281) 540-4329
ii
STATEMENT REGARDING ORAL ARGUMENT
This lawsuit hinges on the meaning of the definition of a single statutory
term. For this reason, Trowbridge respectfully suggests that oral argument is not
likely to assist this Honorable Court in adjudicating this matter. Trowbridge seeks,
among other things, reversal and dismissal, with prejudice, of the trial court’s
amended final judgment and order based upon legal errors committed by the trial
court in respect of the sole material fact in this case relating to jurisdiction; and
respectfully suggests the Court disallow oral argument and rely exclusively on
applicable law and the evidence and material fact in the Record on Appeal
(hereinafter “ROA”).
iii
TABLE OF CONTENTS
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CERTIFICATE OF INTERESTED PERSONS .
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STATEMENT REGARDING ORAL ARGUMENT .
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TABLE OF CONTENTS .
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TABLE OF CITATIONS OF AUTHORITY .
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JURISDICTIONAL STATEMENT
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District Court’s Jurisdiction .
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Court of Appeals Jurisdiction
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Timeliness of Appeal .
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D.
Final Judgment .
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STANDARD OF REVIEW .
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STATEMENT OF THE ISSUES .
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I.
Whether the trial court erred when it concluded as a
matter of law that (n)orth Harris County (Texas) is
part of the United States.
II.
Whether the trial court erred when it ruled that the
trial court has jurisdiction.
STATEMENT OF THE CASE AND FACTS
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SUMMARY OF THE ARGUMENT .
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ARGUMENT .
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The trial court erred when it concluded as a matter of
law that (n)orth Harris County (Texas) is part of the
United States.
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CITIZENS OR RESIDENTS OF THE UNITED STATES LIABLE TO INCOME TAX 13
A CURIOUS CHOICE .
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JURISDICTIONAL PROVISIONS OF THE CONSTITUTION .
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TWO DIFFERENT GOVERNMENTS, TWO DIFFERENT LEGISLATURES .
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STATES VERSUS COLUMBIA AND THE TERRITORIES
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THE UNALIENABLE AND CONSTITUTIONAL RIGHT OF LIBERTY .
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LEGISLATIVE ALCHEMY
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CONGRESS SET ABOUT TO USURP THE LIBERTY OF
THE AMERICAN PEOPLE . . . . . . . .
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FIRST OF TWO LEGISLATIVE STRATAGEMS .
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ACTUAL LEGISLATIVE FRAUD .
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IGNORANCE OF THE LAW EXCUSES NO ONE .
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CONSTRUCTION AND INTERPRETATION OF STATUTES .
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THE SUPREME COURT ON STATUTORY CONSTRUCTION .
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JUNE 30, 1864, MEANING OF THE TERM OF ART “STATE” .
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MEANING OF “STATE” IN THE REVISED STATUTES OF 1873–’74
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MEANING OF “UNITED STATES” IN THE REVENUE ACT OF
SEPTEMBER 8, 1916 . . . . . . . . . . . .
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SOCIAL SECURITY ACT OF AUGUST 14, 1935 .
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“INCLUDES AND INCLUDING” .
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POLITICAL / GOVERNMENTAL SENSE VERSUS GEOGRAPHICAL
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NOVEL DEFINITIONS OF “STATE,” “UNITED STATES” COMPREHEND
ONLY THE DISTRICT OF COLUMBIA AND THE TERRITORIES . . .
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AMERICANS APPEAR TO WAIVE THE CONSTITUTIONAL RIGHT OF LIBERTY
UPON ACQUIRING THE RIGHT TO RECEIVE SOCIAL SECURITY BENEFITS. . 33
MODERN SOCIAL SECURITY TERMS “STATE,” “UNITED STATES” .
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CONTROLLING DEFINITION OF “UNITED STATES” IN TITLE 26 U.S.C. .
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“THE STATES” OF THE UNITED STATES CODE .
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FROM RATIONALITY TO POLITICAL / GEOGRAPHICAL ABSURDITY .
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II.
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The trial court erred when it ruled that the trial court
has jurisdiction.
A DISTINCT PATTERN OF PROCEDURE
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TWO TYPES OF COURT .
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SECOND CONGRESSIONAL LEGISLATIVE STRATAGEM: CONGRESS GIVE
CONSTITUTIONAL AND TERRITORIAL COURTS THE SAME NAME . . .
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LOWER INFERIOR COURTS AND FEDERAL DEBT COLLECTION.
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TITLE 28 U.S.C. CHAPTER 176 TERMS OF ART “COURT,”
“UNITED STATES” . . . . . . . . . . . .
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TROWBRIDGE’S RESIDENCE, DOMICIL, AND LEGAL RESIDENCE .
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CONCLUSION.
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PRAYER FOR RELIEF .
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ADDENDUM .
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CERTIFICATE OF SERVICE
CERTIFICATE OF COMPLIANCE
vi
TABLE OF CITATIONS OF AUTHORITY
CONSTITUTIONAL PROVISIONS
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Article 1 . .
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Article 1 § 8(1) .
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Article 1 § 8(1–16).
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Article 1 § 8(17)
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Article 1 § 8(1–18).
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.Addendum A–B
Article 3 .
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Article 3 § 1 .
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41, Addendum B
Article 3 § 2, cl. 1, 2 .
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Article 4 .
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2, 10, 40, 42, 47, 50
Article 4 § 3 .
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Article 4 § 3(2) .
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STATUTES
4 U.S.C. Chapter 4 .
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11, 37, 38
4 U.S.C. § 106(a) .
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4 U.S.C. § 110(d) .
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5 U.S.C. § 552a(a)(2) .
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5 U.S.C. § 552a(a)(13)
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26 U.S.C. § 6109(d) .
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26 U.S.C. §§ 7201–7241 .
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26 U.S.C. § 7701(a)(9), (10), (c)
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28 U.S.C. § 41 .
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15, Addendum C
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28 U.S.C. § 124(b), (b)(2)
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28 U.S.C. § 132(a).
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28 U.S.C. § 451.
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28 U.S.C. § 528.
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51, Addendum D
28 U.S.C. § 1291 .
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28 U.S.C. § 1340 .
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28 U.S.C. § 3001(a), (b), (c) .
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28 U.S.C. § 3002(1)(A), (2),
(3)(B), (8), (15) . . . . .
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28 U.S.C. Chapter 176
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42 U.S.C. Chapter 7 .
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42 U.S.C. § 1301(a)(1), (2), (b) .
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“An Act To increase the revenue, and for other purposes,”
Ch. 463, SEC. 15, 39 Stat. 756, 773, September 8, 1916 .
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“An Act to provide a Government for the District of
Columbia,” ch. 62, 16 Stat. 419, February 21; later
legislated in “An Act Providing a Permanent Form of
Government for the District of Columbia,” ch. 180,
sec. 1, 20 Stat. 102, June 11, 1878, to remain and
continue as a municipal corporation (brought forward
from the Act of 1871, as provided in the Act of March
2, 1877, amended and approved March 9, 1878, Revised
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Statutes of the United States Relating to the District of
Columbia . . . 1873–’74 (in force as of December 1, 1873),
sec. 2, p. 2); as amended by the Act of June 28, 1935, 49
Stat. 430, ch. 332, sec. 1 (Title 1, Section 102, District of
Columbia Code (1940)) . . . . . . . . 11, 16–17, 29, 32, 35, 41, 51
“An Act to provide Internal Revenue to support the
Government, to pay Interest on the Public Debt, and for
other Purposes,” Ch. 173, 13 Stat. 223, 306, June 30, 1864,
SEC. 182 . . . . . . . . . . . . . . . . .
21, 23, 29, 38
Revised Statutes of the United States, Passed at the First
Session of the Forty-third Congress, 1873–’74, TITLE
XXXV, INTERNAL REVENUE, SEC. 3140, p. 601,
approved retroactively as of the Act of March 2, 1877,
Amended and approved as of the Act of March 9, 1878 .
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Social Security Act of August 14, 1935 .
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11, 31, 32, 33
Social Security Act of August 14, 1935. SECTION 801 .
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Social Security Act of August 14, 1935, SECTION
1101(a)(1), (2), (b) . . . . . . . . . . .
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Social Security Act of August 14, 1935. SECTION 1101(a)(6) .
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U.C.C. § 9-307(h) .
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REGULATIONS
26 C.F.R. § 1.1-1(a)(1)
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27 C.F.R. § 72.11 .
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American Tobacco Company v. John Patterson, No. 80-1199,
456 U.S. 63, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982) . . . .
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CASES
Balzac v. People of Porto Rico, 258 U.S. 298, 312 (1922) . 40, 41, 42, 43, 46
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Black Sea Inv. Ltd. v. United Heritage Corp., 204 F.3d 647, 650 .
BMW of North America Inc. v. Gore, 517 U.S. 559,
575–576, 581, 589 (1996) . . . . . . . .
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51, 53, Addendum E–F
Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25
L.Ed.2d 747 (1970) . . . . . . . . . . . .
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Chisholm v. Georgia, 2 U.S. 2 Dall. 419, 472 (1793) .
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Cohens v. Virginia, 19 U.S. 264, 434, 6 Wheat. 265, 5 L.Ed. 257 (1821) . 14
Gibbons v. Ogden, 27 U.S. 1 (1824) .
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Goldman v. Bosco, 120 F.3d 53, 54.
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Hepburn & Dundas v. Ellzey, 6 U.S. 445, 452, 2 Cranch
445, 2 L.Ed. 332 (1805) . . . . . . . . . . .
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Jones v. State Board of Education of and for the State of Tennessee,
397 U.S. 31, 90 S.Ct. 779, 25 L.Ed.2d 27 (1970) . . . . . .
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Kitchens v. Steele, 112 F.Supp. 383, Dist. Court W.D. Missouri (1953).
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Linardos v. Fortuna, 157 F.3d 945 (2d Cir. 1998) .
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Marbury v. Madison, 5 U. S. 137, 176 (1803)
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McNary v. Haitian Refugee Center, Inc., 498 U.S. 479,
111 S.Ct. 888, 112 L.Ed.2d 1005 (1991) . . . . .
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Mookini v. United States, 303 U.S. 201, 205 (1938).
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40, 41, 42, 43
Mortensen v. First Federal Savings and Loan Association,
549 F.2d 884, ¶ 27 . . . . . . . . . . . . .
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Munn v. Algee, 924 F.2d 568, 575 .
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Murphy v. Uncle Ben's, Inc., 168 F.3d 734, 737 .
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New Orleans v. Winter, 1 Wheat. (U. S.) 91, 4 L. Ed. 44 (1816) .
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Perry v. United States, 294 U.S. 330, 353 (1935)
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Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296,
300, 78 L.Ed.2d 17 (1983) . . . . . . . . . .
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State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408,
425 (2003) . . . . . . . . . . . . . . .
53, Addendum E
Texas v. Florida, 306 U.S. 398 (1939) .
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RULES
FED. R. APP. P. 3(a)(1).
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FED. R. APP. P. 4(a)(1)(A)
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FED. R. APP. P. 25(a)(2)(B)(ii) .
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FED. R. APP. P. 26(a)(1)(C) .
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FED. R. APP. P. 31(a)(1) .
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5TH CIR. R. 31.3 .
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FED. R. CIV. P. 12(b)(1) .
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FED. R. CIV. P. 17(a)(1) .
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OTHER AUTHORITIES
A Dictionary of Law, 7th ed., Jonathan Law and Elizabeth Martin, eds.
(Oxford University Press: Oxford, 2009), 295 . . . . . . . . 29, 31
Black, Henry Campbell, Handbook on the Construction and Interpretation
of the Laws (St. Paul, Minn.: West Publishing Co., 1896), § 57, 128. . . 28
Black’s Law Dictionary, 1st ed., p. 1119 .
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Black’s Law Dictionary, 2nd ed., p. 95 .
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Blackstone, William, Commentaries on the Laws of England:
Book the First, A Reprint of the First Edition with Supplement
(Dawsons of Pall Mall: London, 1966), 45–46 . . . . . .
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Bouvier’s Law Dictionary, Third Revision (Being the Eighth Edition),
by Francis Rawle (hereinafter “Bouvier’s 8th”), p. 2155 . . . . .
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Bouvier’s 8th, p. 921 .
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Bouvier’s 8th, p. 1488.
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Bouvier’s 8th, p. 2130.
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Bouvier’s 8th, p. 2132.
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Bouvier’s 8th, p. 2134.
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Bouvier’s 8th, p. 2166.
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.
.
. 49
Bouvier’s 8th, pp. 3120–3121 .
.
.
.
.
.
.
.
.
.
.
.
.
. 23
DeWitt, Larry, “The Development of Social Security in
America,” Social Security Bulletin, Vol. 70, No. 3, 2010,
U.S. Social Security Administration . . . . . . .
.
.
.
.
. 34
Los Angeles Times, “Survey: Banking industry’s reputation is nearly
as bad as that of Congress; BofA ranks last,” August 29, 2013 . . .
. 24
Nelson, Thomas Clark, “Once upon a time, in a faraway
land . . .”, Why the 14th Amendment is a political Trojan
horse: And did not make a “citizen of the United States”
of anyone born in one of the Union states, including
slaves (Self-published: January 3, 2013), 43 . . . . .
.
.
.
.
New York Times, “Stabilizing Money Rates,” Section 3, Editorial
Section, January 18, 1920, 33 . . . . . . . . . . . .
xii
. 19–20
.
. 20
Rarick, Rep. John R., “Deficit Financing,” Congressional
Record (House of Representatives), 92nd Cong., 1st Sess.,
Vol. 117—Part 1, February 1, 1971, 1261. . . . . .
.
.
.
.
. 19
Scott, Jacob, “Codified Canons and the Common Law of
Interpretation,” The Georgetown Law Journal, Vol. 98,
Issue 2, January 2010, 341, 352–353, 357 . . . . . 11, 26–27, 28, 31, 51
Singer, Norman J. and Singer, J.D. Shambie, Statutes and
Statutory Construction, 7th ed., 2007 new ed., vol. 2A,
Thomson – West, 398–412 . . . . . . . . . .
.
.
.
.
. 28
U.S. Dept. of the Interior, Office of Insular Affairs,
“All OIA Jurisdictions” . . . . . . . . .
.
.
.
.
.
. 37
U.S. Dept. of the Interior, Office of Insular Affairs, “U.S.
Territories Under U.S. Fish and Wildlife Jurisdiction or
Shared with Johnston Atoll Chemical Agent Disposal
System (JACADS)” . . . . . . . . . . . .
.
.
.
.
. 37
Webster, Daniel (1782–1852), from “The Presidential
Protest,” a speech delivered in the U.S. Senate, May 7,
1834, The Works of Daniel Webster, vol. 4, 18th ed.
(Little, Brown & Co.: Boston, 1881), 133 . . . . .
.
.
.
.
. 18
Webster’s Dictionary, 1828 ed., s.v. “State” .
.
.
.
.
. 22
xiii
.
.
.
.
.
JURISDICTIONAL STATEMENT
A.
District Court’s Jurisdiction
Trowbridge resides in Harris County, Texas. The Constitution provides in
Article 1 § 8(1–16) that Congress shall have subject-matter legislative power
throughout the Union, i.e., in places like Harris County, Texas. The Plaintiff
alleges in the Complaint that Trowbridge resides within the jurisdiction of the trial
court and Trowbridge hears not from the trial court that the trial court disagrees.
Wherefore, in the interests of maintaining possession of Trowbridge’s
property, Trowbridge sends a conditional acceptance and demand for proof or
withdrawal of claims to the authorized representative of claimant United States and
provides the trial court with a certified copy thereof. Notwithstanding that the
conditional acceptance and demand does not meet FEDERAL RULES OF CIVIL
PROCEDURE criteria as an answer to the lawsuit the trial court rules “The court will
construe the conditional acceptance and demand for proof by John Parks
Trowbridge, Jr. as his answer to the lawsuit.” (ROA.91). At this point, at least in
form, it appears that Trowbridge has joined the action and, receiving no word of
dismissal from the trial court, rather than risk loss of possession of Trowbridge’s
property for default, Trowbridge responds to the filings of the Plaintiff.
As documented herein, the trial court is not a judicial Article III
constitutional court with subject-matter jurisdiction in Harris County, Texas, but a
1
legislative Article IV territorial court with plenary jurisdiction in geographical area
described in Article 1 § 8(17) or 4 § 3(2) of the Constitution. At no time does the
Plaintiff or trial court disclose / admit this fact. The ROA reflects multiple
challenges of the trial court’s jurisdiction by Trowbridge and is the subject matter
of this Appeal.
B.
Court of Appeal’s Jurisdiction
Trowbridge appeals a final decision from a court of the United States which
represents itself to be within the composition of the Fifth Judicial Circuit of the
United States, 28 U.S.C. § 41. This Court has jurisdiction pursuant to 28 U.S.C. §
1291, which grants courts of appeals “jurisdiction of appeals from all final
decisions of the district courts of the United States.”
C.
Timeliness of Appeal
The United States District Court enters amended final judgment and order of
sale and vacature as of May 23, 2014. (ROA.413, 414–417). Trowbridge timely
files notice of appeal as of May 27, 2014, pursuant to FED. R. APP. P. 3(a)(1) and
4(a)(1)(A). (ROA.418). Trowbridge timely serves and files this Appeal August 18,
2014, pursuant to July 7, 2014, Briefing Notice; FED. R. APP. P. 25(a)(2)(B)(ii),
26(a)(1)(C), and 31(a)(1); and 5TH CIR. R. 31.3.
D.
Final Judgment
This appeal is from a final judgment that disposes of all parties’ claims.
2
STANDARD OF REVIEW
Statutory interpretation presents a question of law over which this Court
exercises de novo review. The ROA reflects no evidence of subject-matter
jurisdiction despite multiple challenges thereof by Trowbridge, FED R. CIV. P.
12(b)(1). “Moreover, the plaintiff will have the burden of proof that jurisdiction
does in fact exist.” Mortensen v. First Federal Savings and Loan Association, 549
F.2d 884, ¶ 27 (3d Cir. 1977). “[I]n Rosemound Sand & Gravel v. Lambert Sand
& Gravel, 469 F.2d 416 (5th Cir. 1972). . . . [d]espite the opportunity, plaintiff had
only the barest conclusory allegations in his complaint, with little to buttress
them.” Id. at ¶ 32.
Notwithstanding existence of no law or evidence that would support a
conclusion that Harris County, Texas, wherein Trowbridge resides, is part of the
United States—and competent evidence and relevant citations of authority and
decisions to the contrary produced by Trowbridge: The trial court concludes as a
matter of law that the said county is part of the United States—which conclusion
operates to infer that the trial court has jurisdiction.
“However, when the district court’s ruling is predicated on its view of a
question of law, it is subject to de novo review.” Munn v. Algee, 924 F.2d 568, 575
(5th Cir. 1991). “[B]ut asserted legal errors are reviewed de novo.” Goldman v.
Bosco, 120 F.3d 53, 54 (5th Cir.1997). “However, to the extent the district court's
3
decision in this case rests on an interpretation of the law, the decision is reviewed
de novo.” Murphy v. Uncle Ben's, Inc., 168 F.3d 734, 737 (5th Cir. 1999). See also
Black Sea Inv. Ltd. v. United Heritage Corp., 204 F.3d 647, 650 (5th Cir. 2000).
Under the de novo standard of review, the Court owes no deference to the
trial court’s statutory-interpretation analysis.
4
STATEMENT OF THE ISSUES
I.
Whether the trial court erred when it concluded as a matter of
law that (n)orth Harris County (Texas) is part of the United
States.
II.
Whether the trial court erred when it ruled that the trial court
has jurisdiction.
5
STATEMENT OF THE CASE AND FACTS
This case is an alleged Federal debt collection proceeding whose subject
matter is alleged income tax liability, and an action to foreclose on alleged federal
tax liens recorded by claimant United States against real property owned by
Trowbridge and arising from alleged unpaid federal income taxes, penalties, and
interest assessed against Trowbridge by the Internal Revenue Service for tax years
1993–1997 totaling (as of September 1, 2013) $3,286,335.47. (ROA.1–2).
This Appeal concerns not the history of events associated with the above
allegations but rather the basis thereof: the meaning of the law as provided in the
Constitution versus that in Titles 26 and 28 U.S.C., and that the provisions of the
latter, upon which Plaintiff and trial court rely to prosecute and hear this matter, do
not obtain against Trowbridge or Trowbridge’s property. The ROA is devoid of
competent evidence of jurisdiction.
The one and only material fact in the record of this case relevant to the
Issues is that Trowbridge resides in Harris County, Texas. (ROA.153, 181).
Trowbridge offers on February 4, 2014, to discharge in full the federal tax
liability alleged in the Complaint upon Plaintiff’s production of tangible, relevant
evidence that Trowbridge is a citizen or resident of the United States. (ROA.59).
To this offer Plaintiff stands mute. (ROA.101–102). Trowbridge on March 19,
2014, moves the trial court to dismiss for lack of subject-matter jurisdiction based
6
on no evidence that Trowbridge is a citizen or resident of the United States.
(ROA.107–112). Said motion remains unresolved for the next 43 days.
Plaintiff on April 4, 2014, files a motion for summary judgment. Said
motion is devoid of evidence of jurisdiction, but cites the material fact that
Trowbridge resides in Harris County, Texas. (ROA.114–120).
Trowbridge files on April 29, 2014, an amended opposition to Plaintiff’s
April 4, 2014, motion, and amended motion to dismiss for lack of subject-matter
jurisdiction, attaching thereto competent evidence in support thereof and a
memorandum documenting, evincing, or proving (1) the jurisdictional provisions
of the Constitution, (2) factors that determine residence, domicil, and legal
residence, (3) systemic congressional legislative fraud dating to June 30, 1864,
continuing to the present day, and constituting proof that Harris County, Texas, is
not part of the United States nor Trowbridge a resident of the United States, and
(4) that the jurisdiction of the trial court extends only to sections of territory
occupied by a Federal corporation and that Trowbridge does not reside within the
jurisdiction of the trial court. (ROA.291–336).
Upon Trowbridge’s May 1, 2014, request for a ruling on Trowbridge’s
March 19, 2014, motion to dismiss, the trial court on May 2, 2014, denies said
motion. (ROA.347).
7
Trowbridge on May 6, 2014, moves the trial court to dismiss the Complaint
of the Plaintiff for lack of subject-matter jurisdiction. (ROA.348–357).
Trowbridge on May 7, 2014, objects to the prosecution of the instant cause
in a name other than the real party in interest and moves the trial court to dismiss
the Complaint of the Plaintiff for failure to do so, FED. R. CIV. P. 17(a)(3),
conditioned, however, upon the real party in interest’s failure to ratify, join, or be
substituted into the action. (ROA.360–365).
On May 8, 2014, Trowbridge requests of the trial court an explanation as to
the reason for denial of Trowbridge’s March 19, 2014, motion to dismiss for lack
of subject-matter jurisdiction. (ROA.372).
The trial court, on May 13, 2014, in “Second Order Denying Dismissal”
denies Trowbridge’s May 6 and 7, 2014, motions, and May 8, 2014, request for
explanation, and rules “This court has jurisdiction.1“ and “1 28 U.S.C. § 1340
(2012).” (ROA.380).
Trowbridge on May 15, 2014, files three separate instruments:
ï‚· Formal challenge of Plaintiff’s allegation that Trowbridge resides
within the jurisdiction of the trial court. (ROA.382).
ï‚· Notice of Trowbridge’s exclusive reliance upon the meaning of
“United States” as defined by Congress in Title 26 U.S.C. and Title 28
U.S.C. Chapter 176. (ROA.384).
8
ï‚· A second offer to discharge in full the alleged tax liability upon
Plaintiff’s production of evidence that shows that Trowbridge is a
citizen or resident of the United States. (ROA.386).
Plaintiff on May 16, 2014, files an opposition to Trowbridge’s May 15,
2014, challenge, explaining that pursuant to 28 U.S.C. § 124(b), Trowbridge
resides, and the property the United States seeks to foreclose is situate, within the
jurisdiction of the trial court—but is devoid of evidence that either of the cited
cities (Humble or Porter, Texas) or counties (Harris or Montgomery County,
Texas) or Texas is situate within the United States, as determined by the
controlling definition of that term in matters relating to internal revenue, 26 U.S.C.
§ 7701(a)(9), or Federal debt collection procedure, 28 U.S.C. § 3002(15).
(ROA.388–389).
Trowbridge on May 20, 2014, files an objection to the trial court’s exclusive
reliance on a statute, 28 U.S.C. § 1340, as ultimate determinant of jurisdiction over
Trowbridge’s property, as opposed to competent evidence that Trowbridge resides
in a geographical area over which the trial court has jurisdiction. (ROA.391–400).
Trowbridge also files on May 20, 2014, an objection to denial of due process
of law in respect of the trial court’s declination to dismiss for lack of subjectmatter jurisdiction the Complaint of the Plaintiff for failure to produce evidence
9
thereof despite the burden to do so and multiple challenges1 thereof by
Trowbridge. (ROA. 402–409). Said filing distinguishes between the two species
of lower non-appeals inferior court (and the exclusive geographical area over
which each exercises its own type of jurisdiction): judicial Article III constitutional
courts, called “District Courts of the United States”; and legislative Article IV
territorial courts, called “United States District Courts.”
The trial court, on May 21, 2014, states during a hearing “But I conclude as
a matter of law that North [sic2] Harris County [Texas] is part of the United
States,” thereby, evidently, inferring that Trowbridge, who resides in north Harris
County, Texas, is a resident of the United States and therefore of the subject, and
Trowbridge’s property of the object, of Title 26 U.S.C. (ROA.535).
The trial court on May 23, 2014, in “Amended Final Judgment,” awards to
Plaintiff (1) $3,326,015.01 of Trowbridge’s property, plus statutory additions
accruing after April 7, 2014, (2) authorizes Plaintiff to foreclose the subject liens,
and (3) awards to Plaintiff all right, title, and interest in, and right to possession of,
said real property. (ROA.413). The trial court issues, also on May 23, “Order of
Sale and Vacature,” setting the parameters therefor. (ROA.414–417).
1
ROA.56–62; 107–112; 291–336; 348–357; 382.
Whereas, there is no person by the name “North Harris County,” “North” appears to be
an error on the part of the Official Court Reporter and should be spelled with a lower-case “n.”
10
2
SUMMARY OF THE ARGUMENT
The Constitution provides for two species of legislative power in two
mutually exclusive geographical areas: (1) limited within the Union, in Article 1 §
8 (1–16), and (2) plenary without, in territory identified in Articles 1 § 8(17) and 4
§ 3(2).
As of June 30, 1864, and June 25, 1948, respectively, Congress confound the
order of things in the American Republic by giving (1) the bodies politic residing
within the latter geographical areas the same name used to describe those residing
within the former, and (2) the courts of the former the same name as those of the
latter.
The Argument provides legal evidence of the foregoing and examines
pertinent parts of the legislation incorporating the Government of the District of
Columbia; the Social Security Act of August 14, 1935; Title 42 U.S.C. Chapter 7
Social Security; Title 26 U.S.C.; Title 4 U.S.C. Chapter 4 The States; and Title 28
U.S.C.
Basic rules of statutory construction, of which the American People
generally are ignorant,3 are recited as well.
3
Every legislature in the United States has codified canons—interpretive “rules of
thumb”—to guide statutory interpretation, but these codifications have received virtually
no attention in the academy. Jacob Scott, “Codified Canons and the Common Law of
Interpretation,” The Georgetown Law Journal, Vol. 98, Issue 2, January 2010, 341.
11
The Argument shows that Title 26 U.S.C. and Title 28 U.S.C. Chapter 176
are not national but municipal legislation of the District of Columbia municipal
corporation, and provides two simple rules that allow anyone to identify municipal
legislation cursorily.
Trowbridge neither resides in nor is domiciled in nor a legal resident of the
District of Columbia, defined by Congress (1) in a political sense as a “state” /
“State” or the “United States,” and (2) in a geographical sense (along with certain
of the Territories, depending on the particular title) as part of the “United States,”
and is entitled to, among other things, reversal and dismissal as a matter of law for
clear absence of all jurisdiction.
The only material fact relevant to the Issues is that Trowbridge resides in
Harris County, Texas. The only competent evidence in the ROA relating to
jurisdiction evinces that Trowbridge’s fixed and permanent abode and situs of
earnings, domicil, and legal permanent residence is factually situate, animus
manendi, without the District of Columbia.
The within Argument proves with legal evidence that the trial court erred:
ï‚· When it concluded as a matter of law that (n)orth Harris County
(Texas) is part of the United States, i.e., Issue I. (ROA.535).
ï‚· When it ruled it has jurisdiction, i.e., Issue II. (ROA.380).
12
ARGUMENT
I.
The trial court erred when it concluded as a matter of law that
(n)orth Harris County (Texas) is part of the United States.
CITIZENS OR RESIDENTS OF THE UNITED STATES LIABLE TO INCOME TAX
Title 26 C.F.R. § 1.1-1(a)(1), provides, in pertinent part,
Section 1 of the Code imposes an income tax on the income of every
individual who is a citizen or resident of the United States and, to the
extent provided by section 871(b) or 877(b), on the income of a
nonresident alien individual. . . .”
The foundation of this case is Plaintiff’s presumption that Trowbridge is of
one of the species of individual4 enumerated above and therefore obligated to
discharge the federal tax liability alleged in the Complaint.
Whereas, the record is devoid of material fact or dispositive evidence as to
Trowbridge’s citizenship, the only factor determinative of Trowbridge’s liability to
income tax and the United States’ right to Trowbridge’s property, is whether
Trowbridge is a resident of the geographical United States, a Title 26 U.S.C. term
of art with a limited and specific meaning. The only material jurisdictional fact is
that Trowbridge resides in Harris County, Texas. (ROA.153, 181).
A CURIOUS CHOICE
Following receipt of Summons and Complaint, Trowbridge offers to
discharge in full the income tax liability alleged therein upon Plaintiff’s production
4
the term “individual” means a citizen of the United States or an alien lawfully admitted
for permanent residence . . . 5 U.S.C. § 552a(a)(2).
13
of evidence that Trowbridge is a citizen or resident of the United States. (ROA.59,
88). To this offer Plaintiff stands mute. (ROA.101–102).
The mystery as to why Plaintiff would decline Trowbridge’s offer to settle
things at the outset via performance of such a seemingly simple task, and rather opt
for four months of pre-trial motions and filings, is solved herein.
JURISDICTIONAL PROVISIONS OF THE CONSTITUTION
That certain Constitution, ordained, established, and implemented March 4,
1789, Independence Hall, Philadelphia, Pennsylvania (the “Constitution”),
provides that Congress shall have two species of legislative power in mutually
exclusive geographical areas: limited within the Union (Article 1 § 8(1–16)), and
plenary without (Articles 1 § 8(17) and 4 § 3(2)). (ROA.293–296).
The Supreme Court affirms these facts a few years later; to wit:
It is clear that Congress, as a legislative body, exercise two species of
legislative power: the one, limited as to its objects, but extending all
over the Union: the other, an absolute, exclusive legislative power
over the District of Columbia. Cohens v. Virginia, 19 U.S. 264, 434,
6 Wheat. 265, 5 L.Ed. 257 (1821).
Consulting any news source today, however, it is clear that Congress now
exercise personal legislative power—and officers of the Department of Justice and
United States District Judges, personal jurisdiction—over not only the tiny
percentage of Americans residing in Federal territory, but the rest of the American
population residing throughout the Union as well.
14
For example: The advertized constitutional authority to impose an income
tax is Article 1 § 8(1), which provides, in pertinent part, “The Congress shall have
Power To lay and collect Taxes, Duties, Imposts and Excises . . .”—but every
income taxpayer is susceptible to a criminal charge for a crime against the revenue
laws, 26 U.S.C. §§ 7201–7241, and the levying, prosecution, and trying of such a
charge, which happens on a routine basis, almost exclusively to Americans
residing without geographical area described in Articles 1 § 8(17) and 4 § 3(2) of
the Constitution, requires personal jurisdiction.
If we are to believe that all Department of Justice personnel and United
States District Judges today maintain fidelity to their oath of office and the
jurisdictional provisions of the Constitution when they indict, charge, arrest,
prosecute, try, convict, and sentence to prison for crimes against the revenue laws,
or acquit thereof, ordinary Americans whose fixed and permanent abode, source of
earnings, domicil, and legal permanent residence is factually situate, animus
manendi, without every section of territory occupied by the District of Columbia,
we must look deeper for the actual constitutional authority upon which said
officers rely to exercise personal jurisdiction over such Americans—and subjectmatter jurisdiction over the property of other Americans similarly situated and
domiciled but not so charged.
15
TWO DIFFERENT GOVERNMENTS, TWO DIFFERENT LEGISLATURES
The difference between the American governmental paradigm and all others
is that sovereignty resides in the People, and Congress have no personal legislative
power over them, except as such may choose to establish residence, domicil, or
legal residence in territory described in Article 1 § 8(17) or 4 § 3(2) of the
Constitution.
Upon implementation of the Constitution March 4, 1789, there is only one
legislature in the District of Columbia: that provided in Article I thereof.
When Congress create and incorporate the Government of the District of
Columbia February 21, 1871, however, they also create for themselves and assume
the role of a second legislature, that of the District of Columbia municipal
corporation; to wit, in pertinent part:
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That all that part of
the territory of the United States included within the limits of the
District of Columbia be, and the same is hereby, created into a
government by the name of the District of Columbia, by which name
it is hereby constituted a body corporate for municipal purposes, and
may contract and be contracted with, sue and be sued, plea and be
impleaded, have a seal, and exercise all other powers of a municipal
corporation not inconsistent with the Constitution and laws of the
United States and the provisions of this act.
. . . SEC. 18. And be it further enacted, That the legislative power of
the District shall extend to all rightful subjects of legislation within
said District . . . and nothing herein shall be construed to deprive
16
Congress of the power of legislation over said District in as ample
manner as if this law had not been enacted.5 (ROA.312).
The national legislature exercises limited legislative power throughout the
Union in what the Framers identify in the Constitution as the “States” and “United
States”; the municipal legislature, plenary legislative power in geographical areas
identified in Articles 1 § 8(17) and 4 § 3(2) of that instrument.
STATES VERSUS COLUMBIA AND THE TERRITORIES
The Supreme Court explains the constitutional difference between, on the
one hand, the states of the Union and, on the other, Columbia and the Territories:
On the part of the plaintiffs, it has been urged that Columbia is a
distinct political society, and is therefore “a state” according to the
definitions of writers on general law.
This is true. But as the act of Congress obviously uses the word
“state” in reference to the term as used in the Constitution, it becomes
necessary to inquire whether Columbia is a state in the sense of that
instrument. The result of that examination is a conviction that the
members of the American confederacy only are the states
contemplated in the Constitution.
. . . These clauses show that the word “state” is used in the
Constitution as designating a member of the union, and excludes from
the term the signification attached to it by writers on the law of
nations. Hepburn & Dundas v. Ellzey, 6 U.S. 445, 452, 2 Cranch 445,
2 L.Ed. 332 (1805). (ROA.302–304).
5
“An Act to provide a Government for the District of Columbia,” ch. 62, 16 Stat. 419,
February 21, 1871; later legislated in “An Act Providing a Permanent Form of Government for
the District of Columbia,” ch. 180, sec. 1, 20 Stat. 102, June 11, 1878, to remain and continue as
a municipal corporation (brought forward from the Act of 1871, as provided in the Act of March
2, 1877, amended and approved March 9, 1878, Revised Statutes of the United States Relating to
the District of Columbia . . . 1873–’74 (in force as of December 1, 1873), sec. 2, p. 2); as
amended by the Act of June 28, 1935, 49 Stat. 430, ch. 332, sec. 1 (Title 1, Section 102, District
of Columbia Code (1940)).
17
It has been attempted to distinguish a Territory from the district of
Columbia; but the court is of opinion, that this distinction cannot be
maintained. They may differ in many respects, but neither of them is a
state, in the sense in which that term is used in the constitution. New
Orleans v. Winter, 1 Wheat. (U. S.) 91, 4 L. Ed. 44 (1816).
(ROA.304–305).
Residents of the District of Columbia or one of the Territories are subject to
the personal legislative power of Congress. The respective bodies politic residing
in sections of territory occupied by the several commonwealths of the Union are
not; enjoying rather the unalienable and constitutional Right of Liberty under the
common law, free of subjection to the will of any other, such as their servants in
Congress; to wit:
The same feudal ideas run through all their jurisprudence, and
constantly remind us of the distinction between the Prince and the
subject. No such ideas obtain here; at the Revolution, the sovereignty
devolved on the people, and they are truly the sovereigns of the
country, but they are sovereigns without subjects . . . and have none to
govern but themselves; the citizens of America are equal as fellow
citizens, and as joint tenants in the sovereignty. Chisholm v. Georgia,
2 U.S. 2 Dall. 419, 472 (1793). (ROA.294).
THE UNALIENABLE AND CONSTITUTIONAL RIGHT OF LIBERTY
Mr. President, the contest, for ages, has been to rescue Liberty from
the grasp of executive power. Whoever has engaged in her sacred
cause, from the days of the downfall of those great aristocracies which
had stood between the king and the people to the time of our own
independence, has struggled for the accomplishment of that single
object. Daniel Webster (1782–1852), from “The Presidential Protest,”
a speech delivered in the U.S. Senate, May 7, 1834, The Works of
Daniel Webster, vol. 4, 18th ed. (Little, Brown & Co.: Boston, 1881),
133.
18
[T]he policies of the monarch are always those of his creditors. Rep.
John R. Rarick, “Deficit Financing,” Congressional Record (House of
Representatives), 92nd Cong., 1st Sess., Vol. 117—Part 1, February 1,
1971, 1261.
LEGISLATIVE ALCHEMY
Once upon a time, in a faraway land . . .
“How to snatch from the sovereign American People their Liberty and
place them under the discretionary power of the Executive that we
control?” says one Bank of England goldsmith-banker to the other.
“Change the legal meaning of the word they use for their sovereign
political bodies, ‘state,’ to mean the one over whom our hirelings in
Congress have absolute control, the District of Columbia,” says the
other in response, “but do it during wartime (in an internal war that we
create) so no one will notice. Thereafter, when they see that particular
word in a legislative act, they will think it means the one thing, when
‘legally’ it means the other (as defined by us), and we can impose our
will on them, through our servants on Capitol Hill—and get away
with it because of the American People’s foolish trusting nature.”
“The subject matter of the first legislative act to which we attach it
should have broad public support, such as ‘civil rights for slaves’ or
‘freeing the slaves,’ so there is no real resistance,” says the first. “We
can ‘free the slaves’ from involuntary servitude and at the same time
subject everyone—including the slaves—to voluntary servitude based
on their erroneous belief that the legislation attaches to their particular
sovereign ‘State’ and the ‘United States’ and citizens of the ‘United
States,’ all of which, of course, shall mean the District of Columbia.”
“Not everyone will buy it; we need to get them all to enter into a
binding contract without knowing it and from which there is no
apparent escape—and the contract should ‘rescue’ them from
something, so they are predisposed to agree to whatever we offer. To
begin with, why not flood the market with easy loans through the
banking monopoly we shall institute in the District of Columbia in
1913 and get people to borrow and invest in the stock market, because
‘Everybody knows the stock market is going up!’—it costs us nothing
19
to do so [6] and we can secure the loans with their land and property
and then crash the stock market, contract the availability of credit so
the economy dives into a depression, and foreclose and evict them
from their farms and homes and toss them out on the street, just like
we did in ancient Rome,” the second replies.
“Most excellent,” says the first. “Then we can pretend to save them
from potential financial destitution through what appears to be a
personal retirement program (for which they need to apply, of course)
but is actually a municipal franchise, with political rights and duties,
the right to receive (but not realize) retirement benefits, and the duty
to pay income tax (and token payroll taxes for the retirement of other
franchisees and administration of the program), which our puppets in
Congress enact under local powers of legislation of the corporate
District of Columbia—thereby providing a basis to presume that each
franchisee is domiciled in the District of Columbia, subject to
municipal rule, and liable to all municipal taxes (most importantly,
income tax). In this wise we can reverse the effects of that horrible
instrument they used to escape our policies in 1776, exploit the
defects we installed in their Constitution, and usurp their Liberty
without them even knowing what happened!” he says in conclusion.7
CONGRESS SET ABOUT TO USURP THE LIBERTY OF THE AMERICAN PEOPLE
As men whose intentions require no concealment generally employ
the words which most directly and aptly express the ideas they in tend
[sic] to convey, the enlightened patriots who framed our Constitution,
and the people who adopted it, must be understood to have employed
words in their natural sense, and to have intended what they have said.
Gibbons v. Ogden, 27 U.S. 1 (1824).
Quæ ad unum finem locuta sunt, non debent ad alium detorqueri.
Words spoken to one end, ought not to be perverted to another.
Bouvier’s Law Dictionary, Third Revision (Being the Eighth Edition),
by Francis Rawle (hereinafter “Bouvier’s 8th”), p. 2155. (ROA.308).
6
The Federal Reserve is a fount of credit, not of capital. New York Times, “Stabilizing
Money Rates,” Section 3, Editorial Section, January 18, 1920, 33.
7
Thomas Clark Nelson, Why the 14th Amendment is a political Trojan horse: And did
not make a “citizen of the United States” of anyone born in one of the Union states, including
slaves (Self-published: January 3, 2013), 43, http://goo.gl/27nvHn.
20
Notwithstanding the material opinions of the Supreme Court in Hepburn and
New Orleans, supra, pp. 17–18, and literally dozens of legal principles to the
contrary, Congress, “to provide internal revenue” and “increase the revenue,”
effectively turn the jurisdictional provisions of the Constitution on their head by
defining the proper nouns used therein to identify the bodies politic over whom
Congress have no personal legislative power (“state” / “State” and “United States”)
to mean the same thing as those over whom they have absolute personal legislative
power (the District of Columbia and the territories / Territories); to wit:
SEC. 182. And be it further enacted, That wherever the word state is
used in this act it shall be construed to include the territories and the
District of Columbia, where such construction is necessary to carry out
the provisions of this act. “An Act to provide Internal Revenue to
support the Government, to pay Interest on the Public Debt, and for
other Purposes,” Ch. 173, 13 Stat. 223, 306, June 30, 1864. (ROA.305).
TITLE XXXV.
INTERNAL REVENUE.
. . . SEC. 3140. The word “State,” when used in this Title, shall be
construed to include the Territories and the District of Columbia
where such construction is necessary to carry out its provisions.
Revised Statutes of the United States, Passed at the First Session of
the Forty-third Congress, 1873–’74, p. 601, approved retroactively as
of the Act of March 2, 1877, amended and approved as of the Act of
March 9, 1878. (ROA.307).
TITLE I.—INCOME TAX.
. . . SEC. 15. That the word “State” or “United States” when used in
this title shall be construed to include any Territory, the District of
Columbia, Porto Rico, and the Philippine Islands, when such
construction is necessary to carry out its provisions. “An Act To
increase the revenue, and for other purposes,” Ch. 463, 39 Stat. 756,
773, September 8, 1916. (ROA.310).
21
The primary sense of “state” and “State” as words / proper nouns found in
the dictionary is political; the secondary, governmental; the tertiary, geographical.
The greatest lexicographer in history, Noah Webster, makes no provision for
“state” / “State” in a geographical sense; to wit:
STATE, n. . . .
A political body, or body politic ; the whole body of people united
under one government, whatever may be the form of the government.
Municipal law is a rule of conduct prescribed by the supreme power in a state.
Blackstone.
More usually the word signifies a political body governed by
representatives ; a commonwealth ; as the States of Greece ; the
States of America.
In this sense, state has sometimes more immediate reference to the
government, sometimes to the people or community. Thus when we
say, the state has made provision for the paupers, the word has
reference to the government or legislature ; but when we say the state
is taxed to support paupers, the word refers to the whole people or
community. Webster’s Dictionary, 1828 ed., s.v. “State.”
STATE, n. A body politic, or society of men, united together for the
purpose of promoting their mutual safety and advantage, by the joint
efforts of their combined strength. Cooley, Const. Lim. 1.
One of the component commonwealths or states of the United
States of America.
The people of a state, in their collective capacity, considered as the
party wronged by a criminal deed ; the public ; as in the title of a
cause, “The State vs. A. B.”
The section of territory occupied by one of the United States.
Black’s Law Dictionary, 1st ed. (1890), p. 1119.
STATE (Lat. stare, to place, establish). A body politic, or society of
men, united together for the purpose of promoting their mutual safety
and advantage, by the joint efforts of their combined strength.
Cooley, Const. Lim. 1. A self-sufficient body of persons united
together in one community for the defence of their rights and to do
right and justice to foreigners. In this sense, the state means the whole
people united into one body politic ; and the state, and the people of
22
the state are equivalent expressions. Chisholm v. Georgia, 2 Dall. (U.
S.) 425, 1 L. Ed. 440 ; 2 Wilson, Lect. 120 ; 1 Story, Const., § 208.
So, frequently, are state and nation ; Texas v. White, 7 Wall. (U. S.)
720, 19 L. Ed. 227. . . .
The section of territory occupied by a state: as, the state of
Pennsylvania.
. . . One of the commonwealths which form the United States of
America. Bouvier’s 8th (1914), pp. 3120–3121.
FIRST OF TWO LEGISLATIVE STRATAGEMS
Congress devise a plan to devest the American People of the unalienable and
constitutional Right of Liberty, ensnare them in income tax, and bring them under
municipal rule by getting them to (1) believe that the words of the Constitution
authorize Congress to exercise personal legislative power over them, and (2)
establish what can be construed as domicil / legal residence in the District of
Columbia, thereby justifying exaction of income tax and fines (collection of
alleged Federal debt) from them as alleged taxpayers, tax cheats, and commercial
criminals—enforced, ultimately, if necessary, by legislative tribunal.
“Cujusque rei potissima pars principium est. The principal part of
everything is the beginning,” Bouvier’s 8th, p. 2130; and the first step of the initial
stratagem is the Revenue Act of June 30, 1864, supra, p. 21.
The manner in which Congress introduce the legislation that will evade and
defeat the jurisdictional provisions of the Constitution and shanghai politically, as
we shall see, the American People into “voluntary” servitude under municipal rule
portends how Congress will earn their reputation with Mark Twain, Will Rogers,
23
and H. L. Mencken and augurs why they remain today the most despised class in
America8—i.e., amidst the chaos of the Civil War, in one seemingly unremarkable
sentence on the 84th page of an 84-page statute, in the 182nd of 182 sections,
followed by silence thereafter—an M.O. which places them, according to
Blackstone, in the company of another certain municipal lawgiver, Caligula; to wit:
It [municipal law] is likewise “a rule prescribed.” Because a bare
resolution, confined in the breast of the legislator, without manifesting
itself by some external sign, can never be properly a law. It is
requisite that this resolution be notified to the people who are to obey
it. But the manner in which this notification is to be made, is matter
of very great indifference. It may be notified by universal tradition
and long practice, which supposes a previous publication, and is the
case of the common law of England. It may be notified, viva voce, by
officers appointed for that purpose, as is done with regard to
proclamations, and such acts of parliament as are appointed to be
publicly read in churches and other assemblies. It may lastly be
notified by writing, printing, and the like ; which is the general course
taken with all our acts of parliament. Yet, whatever way is made use
of, it is incumbent on the promulgators to do it in the most public and
perspicuous manner ; not like Caligula, who (according to Dio
Cassius) wrote his laws in a very small character, and hung them up
upon high pillars, the more effectually to ensnare the people. William
Blackstone, Commentaries on the Laws of England: Book the First, A
Reprint of the First Edition with Supplement (Dawsons of Pall Mall:
London, 1966), 45–46.
8
In the annals of image problems, the banking industry ranks right up there .... er, down
there ... in the company of Congress, with a high-profile survey ranking Bank of America
Corp. at the bottom of the heap.
Five years after the financial crisis, the Reputation Institute survey said banking has a
worse reputation than Big Pharma, news outlets, oil companies and telecommunications
firms -- though not so bad as Congress. . . . Los Angeles Times, “Survey: Banking
industry’s reputation is nearly as bad as that of Congress; BofA ranks last,” August 29,
2013, http://articles.latimes.com/2013/aug/28/business/la-fi-mo-banks-reputation20130828.
24
ACTUAL LEGISLATIVE FRAUD
The Congress as the instrumentality of sovereignty is endowed with
certain powers to be exerted on behalf of the people in the manner and
with the effect the Constitution ordains. The Congress cannot invoke
the sovereign power of the people to override their will as thus
declared. Perry v. United States, 294 U.S. 330, 353 (1935).
The congressional legislation that effectuates the aforesaid deceits operates
to override the will of the American People as declared in the Constitution through
(1) unilateral summary constructive revision of that instrument via legislative fiat
that operates to impute to certain words used therein a novel contrary meaning visà-vis that of March 4, 1789, and (2) production in the mind of American men and
women residing in the sections of territory occupied by the respective
commonwealths of the Union, the false impression that legislation that purports to
obtain against residents of a “state” / “State” or the “United States” (District of
Columbia or one of the territories / Territories), obtains against them personally,
and constitutes, minimally, actual legislative fraud under color of law and office.
(ROA.318).
IGNORANCE OF THE LAW EXCUSES NO ONE
“Ignorance of law consists of the want of knowledge of those laws
which it is our duty to understand, and which every man is presumed
to know,” Bouvier’s 8th, p. 1488.
Understanding the statutes enacted by Congress, however, is not possible
without application of the same rules of statutory construction and interpretation
that Congress and the Supreme Court use to legislate the law into existence and
25
pronounce it thereafter; e.g.: “It is presumable that Congress legislates with
knowledge of our basic rules of statutory construction . . .”, McNary v. Haitian
Refugee Center, Inc., 498 U.S. 479, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991).
CONSTRUCTION AND INTERPRETATION OF STATUTES
Linguistic inference canons provide guidelines about what the
legislature likely meant, given its choice of some words and not
others. The linguistic inference canons include classic logical canons
such as expressio unius,42 noscitur a sociis,43 and ejusdem generis.44
Other inferential rules encourage interpreters to follow the ordinary
usage of text unless the legislature has itself defined the word or the
phrase has acquired a technical meaning.45 Because dictionaries report
common usage, the dictionary rule supports consulting widely used
dictionary definitions of terms the legislature has not defined.46
[24. 3 NORMAN J. SINGER & J.D. SHAMBIE SINGER, STATUTES AND STATUTORY
CONSTRUCTION § 65A:13, at 797 (7th ed. 2008) [hereinafter SUTHERLAND].]
42. The inclusion of one thing indicates exclusion of others. See Tate v. Ogg,
195 S.E. 496, 499 (Va. 1938) (holding that where a statute applied to “‘any horse,
mule cattle, hog, sheep or goat,’” it did not apply to turkeys); 2A SUTHERLAND,
supra note 24, § 47:23, at 404 (7th ed. 2007) (stating that where a list of things is
designated, “all omissions should be understood as exclusions”).
43. Literally, “it is known from its associates,” but more usefully described as
outlining the inference that ambiguous words may be illuminated by the words
grouped with it in a statute. 2A SUTHERLAND, supra note 24, § 47:16 (7th ed.
2007); see Jarecki v. G.D. Searle & Co., 367 U.S. 303, 305–07 (1961) (given the
word string “‘resulting from exploration, discovery, or prospecting,’” the Court
construed “discovery” to mean only discovery of mineral resources and to not
include scientific discoveries).
44. Meaning “of the same kind” and the touchstone for inferences that
particular words implicitly establish a class of objects and that provision applies
to that class. 2A SUTHERLAND, supra note 24, § 47:17 (7th ed. 2007); see
Heathman v. Giles, 374 P.2d 839, 839–40 (Utah 1962) (given the word string
“‘any sheriff, constable, peace officer, state road officer, or any other person
charged with the duty of enforcement of the criminal laws of this state,’” the court
held that prosecutors were not “‘other person[s] charged with the duty of
enforcement of the criminal laws’” because “other person[s]” is limited by the
class described in the initial word string).
45. See MCI Telecomms. Corp. v. AT&T, 512 U.S. 218, 228 (1994) (using
ordinary usage canon to hold that the Federal Communication Commission’s
authority to “modify” tariff requirements does not allow it to waive tariffs because
26
“‘[m]odify,’ in [the Court’s] view, connotes moderate change” and stating that
“[i]t might be good English to say that the French Revolution ‘modified’ the
status of the French nobility—but only because there is a figure of speech called
understatement and a literary device known as sarcasm”).
46. See Muscarello v. United States, 524 U.S. 125, 128 (1998) (consulting the
Oxford English Dictionary, Webster’s Third New International Dictionary, and
Random House Dictionary of the English Language Unabridged for the meaning
of the word “carry”); 2A SUTHERLAND, supra note 24, § 46:2, at 162–64 (7th ed.
2007).9
THE SUPREME COURT ON STATUTORY CONSTRUCTION
Deliberate congressional transmutation of the words / proper nouns “State”
and “United States” into terms of art with a limited and specific meaning, however
absurd in respect of the Constitution, nevertheless constitutes a clearly expressed
legislative intention that the ordinary meaning, as found in the dictionary, is
extrinsic to construction / interpretation of the language of any statute in which
they appear, and that the statutory definition and meaning thereof obtains
exclusively; to wit:
As in all cases involving statutory construction, “our starting point
must be the language employed by Congress,” Reiter v. Sonotone
Corp., 442 U.S. 330, 337, 99 S.Ct. 2326, 2330, 60 L.Ed.2d 931
(1979), and we assume “that the legislative purpose is expressed by
the ordinary meaning of the words used.” Richards v. United States,
369 U.S. 1, 9, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1962). Thus
“[a]bsent a clearly expressed legislative intention to the contrary, that
language must ordinarily be regarded as conclusive.” Consumer
Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100
S.Ct. 2051, 2055, 64 L.Ed.2d 766 (1980). . . . American Tobacco
Company v. John Patterson, No. 80-1199, 456 U.S. 63, 102 S.Ct.
1534, 71 L.Ed.2d 748 (1982). (ROA.323).
9
Jacob Scott, “Codified Canons and the Common Law of Interpretation,” The
Georgetown Law Journal, Vol. 98, Issue 2, January 2010, 352–353.]
27
JUNE 30, 1864, MEANING OF THE TERM OF ART “STATE”
The words of a statute are to be taken in their ordinary and popular
meaning, unless they are technical terms or words of art, in which
case they are to be understood in their technical sense. . . . Henry
Campbell Black, Handbook on the Construction and Interpretation of
the Laws (St. Paul, Minn.: West Publishing Co., 1896), § 57, 128.
(ROA.308).
Table 1. Linguistic Inference Canons . . .
Ordinary usage: Follow ordinary usage of terms, unless the legislature
gives them a specified or technical meaning.
Dictionary definition: Follow dictionary definitions of terms, unless
the legislature has provided a specific definition. Jacob Scott,
“Codified Canons and the Common Law of Interpretation,” The
Georgetown Law Journal, Vol. 98, Issue 2, January 2010, 357.
Because Congress transform by statute the word “state” into a technical term
/ term of art, in matters of internal revenue no one may take it in any other than its
technical sense.
The rule expressio unius est exclusio alterius (supra, p. 26, SCOTT n. 42),
applies in this instance and is defined elsewhere, as well; to wit, in pertinent part:
§ 47:23 Expressio unius est exclusio alterius
As the maxim is applied to statutory interpretation, where . . . the
persons or things to which it refers are designated, there is an
inference that all omissions should be understood as exclusions. The
maxim does not apply to every statutory listing or grouping. It has
force only when the items expressed are members of an associated
group or series, justifying the inference that the items not mentioned
were excluded by deliberate choice. [Extensive footnoting of cases
omitted.] Norman J. Singer and J.D. Shambie Singer, Statutes and
Statutory Construction, 7th ed., 2007 new ed., vol. 2A, Thomson –
West, 398–412. (ROA.306).
28
Expressio unius est exclusio alterius. The expression of one thing is
the exclusion of another. Co. Litt. 210 ; Broom, Max. 607, 651 . . .
36 Fed. 880 ; 104 U. S. 25, 26 L. Ed. 637. It is a rule of construction.
222 U. S. 513, 32 Sup. Ct. 117, 56 L. Ed. 291. Bouvier’s 8th, p. 2134,
(ROA.313).
The rule expressio unius est exclusio alterius (the inclusion of the one
is the exclusion of the other): when a list of specific items is not
followed by general words it is to be taken as exhaustive. For
example, “weekends and public holidays” excludes ordinary
weekdays. A Dictionary of Law, 7th ed., Jonathan Law and Elizabeth
Martin, eds. (Oxford University Press: Oxford, 2009), 295.
(ROA.302).
Application of expressio unius est exclusio alterius to Sec. 182 of the
Revenue Act of June 30, 1864, supra, p. 21, reveals: The states as of that date are
the bodies politic of the District of Columbia, Arizona Territory, Colorado
Territory, Dakota Territory, Indian (Oklahoma) Territory, Montana Territory,
Nebraska Territory, Nevada Territory, New Mexico Territory, Utah Territory, and
Washington Territory and no other. (ROA.306). Congress exclude by deliberate
choice from the meaning of said definition the bodies politic of the 36 members of
the Union.
MEANING OF “STATE” IN THE REVISED STATUTES OF 1873–’74
Application of the same rule to the definition of “State” in the Revised
Statutes of 1873–’74, supra, p. 21, reveals that: For purposes of internal revenue,
“State” means the body politic of the District of Columbia, Alaska Territory,
Arizona Territory, Dakota Territory, Indian (Oklahoma) Territory, Midway Atoll
29
Territory, Montana Territory, Nevada Territory, New Mexico Territory, Utah
Territory, or Washington Territory and no other. (ROA.307).
MEANING OF “UNITED STATES” IN THE REVENUE ACT OF SEPTEMBER 8, 1916
The Revenue Act of September 8, 1916, supra, p. 21, is the first appearance
of “United States” as a technical term / term of art per se. Application of expressio
unius est exclusio alterius shows that the full extent of the meaning of the
definition provided in Sec. 15 thereof is the body politic of the District of
Columbia and the Territories of Alaska, Hawaii, American Samoa, Guam, Midway
Islands, and the Panama Canal Zone and no other. (ROA.310).
SOCIAL SECURITY ACT OF AUGUST 14, 1935
The Social Security Act of August 14, 1935 (the “Social Security Act”),
provides, in pertinent part:
SECTION 1101.
(a) When used in this Act(1) The term State (except when used in section 531) includes
Alaska, Hawaii, and the District of Columbia.
(2) The term United States when used in a geographical sense
means the States, Alaska, Hawaii, and the District of Columbia.
. . . (b) The terms includes and including when used in a definition
contained in this Act shall not be deemed to exclude other things
otherwise within the meaning of the term defined. (ROA.312)
To identify the geographical “United States” of the Social Security Act, we
must first ascertain the meaning of the term “State,” which uses within its
provisions another term: “includes.”
30
“INCLUDES AND INCLUDING”
Any controversy as to whether “includes” or “including” is a term of
enlargement or one of limitation dissolves upon close inspection. The above
definition of said terms is a hybrid composite of two of the principal rules of
statutory construction and interpretation, expressio unius est exclusio alterius and
ejusdem generis, discussed supra, p. 26, SCOTT n. 44, and defined, in pertinent
part, as follows:
EJUSDEM GENERIS (Lat.). Of the same kind.
In the construction of laws, wills, and other instruments, general
words following an enumeration of specific things are usually
restricted to things of the same kind (ejusdem generis) as those
specifically enumerated. . . . Bouvier’s 8th, p. 979. (ROA.313).
The rule ejusdem generis (of the same kind): when a list of specific
items belonging to the same class is followed by general words (as in
“cats, dogs, and other animals”), the general words are to be treated as
confined to other items of the same class (in this example, to other
domestic animals). A Dictionary of Law, 7th ed., Jonathan Law and
Elizabeth Martin, eds. (Oxford University Press: Oxford, 2009), 295.
(ROA.302).
Use of “includes” or “including” in the definition of any Social Security Act
term signifies that such definition is at once expansionary and exclusionary:
expansionary in that it comprehends other things not listed in the definition;
exclusionary in that such other things are confined / limited to those of the same
kind or class as those specifically enumerated.
31
Congress state this concept succinctly in pertinent part of 27 C.F.R. § 72.11:
“The terms ‘includes’ and ‘including’ do not exclude things not enumerated which
are in the same general class.”
Application of the meaning of the definition of “includes” to the Social
Security Act-term “State” shows that on August 14, 1935, the “States” are the
bodies politic of the District of Columbia and Territories of Alaska, Hawaii, Puerto
Rico, and the Virgin Islands and no other. (ROA.312–315).
POLITICAL / GOVERNMENTAL SENSE VERSUS GEOGRAPHICAL
Whereas, Congress expressly define the Social Security Act-term “United
States” in a geographical sense, but not so with “State,” it is clear that Congress do
not intend “State” in a geographical sense; to wit:
“Where Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.” United States v. Wong Kim Bo, 472
F.2d 720, 722 (CA5 1972). See United States v. Wooten, 688 F.2d
941, 950 (CA4 1982). Russello v. United States, 464 U.S. 16, 23, 104
S.Ct. 296, 300, 78 L.Ed.2d 17 (1983).
Members of the five aforesaid “States” are citizens of the United States, i.e.,
citizens of the Federal government,10 a.k.a. District of Columbia municipal
corporation, supra, pp. 16–17, over whom the Constitution authorizes Congress to
exercise personal legislation. (ROA.312–315).
10
A citizen of the United States is a citizen of the Federal government . . . Kitchens v.
Steele, 112 F.Supp. 383, Dist. Court W.D. Missouri (1953).
32
The Social Security Act-geographical “United States” is the collective of the
respective sections of territory occupied by the five aforesaid bodies politic
(“States” / Territories).
NOVEL DEFINITIONS OF “STATE,” “UNITED STATES” COMPREHEND ONLY
THE DISTRICT OF COLUMBIA AND THE TERRITORIES
No preceding definition of “state,” “State,” or “United States” in this
Argument comprehends any political society residing in any section of territory
occupied by any commonwealth united by and under authority of the Constitution
and admitted into the Union. Acts of Congress using the above terms obtain only
against bodies politic over whom Congress have power of personal legislation, i.e.,
the District of Columbia and the territory and property identified in Articles 1 §
8(17) and 4 § 3(2) of the Constitution, and therefore are not national but municipal
legislation.
AMERICANS APPEAR TO WAIVE THE CONSTITUTIONAL RIGHT OF LIBERTY
UPON ACQUIRING THE RIGHT TO RECEIVE SOCIAL SECURITY BENEFITS
Title 5 U.S.C. - GOVERNMENT ORGANIZATION AND
EMPLOYEES
. . . § 552a - Records maintained on individuals
(a) Definitions.— For purposes of this section—
. . . (2) the term “individual” means a citizen of the United States or
an alien lawfully admitted for permanent residence;
. . . (13) the term “Federal personnel” means officers and
employees of the Government of the United States, members of the
uniformed services (including members of the Reserve Components),
individuals entitled to receive immediate or deferred retirement
benefits under any retirement program of the Government of the
United States (including survivor benefits).
33
The doctrine that a government, state or federal, may not grant a
benefit or privilege on conditions requiring the recipient to relinquish
his constitutional rights is now well established. [Citations omitted.]
Jones v. State Board of Education of and for the State of Tennessee,
397 U.S. 31, 90 S.Ct. 779, 25 L.Ed.2d 27 (1970).
Waivers of constitutional rights not only must be voluntary but must be
knowing, intelligent acts done with sufficient awareness of the relevant
circumstances and likely consequences. Brady v. United States, 397
U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). (ROA.319).
Date-coincident with the Great Depression,11 American non-citizen nonresidents of the United States are induced to apply for and enroll in Social Security,
a program administered by an instrumentality of the District of Columbia
municipal corporation offering potential benefits for which they are not legally
eligible by reason of foreign residence, domicil, and legal residence; and thereafter
appear to execute and enter into a species of conditional / executory contract
(though not under seal) known as an assessment contract,12 and:
1.
Waive their Right of Liberty (Constitution, Preamble).
2.
Volunteer to pay a municipal tax (income tax) for which, other than
by way of mistake as a consequence of fraud, they have no duty to pay; to wit:
Social Security Act of August 14, 1935.
. . . TITLE VIII . . .
11
The Depression was the triggering event that finally persuaded Americans to adopt a
social insurance system. Larry DeWitt, “The Development of Social Security in
America,” Social Security Bulletin, Vol. 70 No. 3, 2010, U.S. Social Security
Administration, www.ssa.gov/policy/docs/ssb/v70n3/v70n3p1.html.
12
—assessment contract. One wherein the payment of the benefit is in any manner or
degree dependent on the collection of an assessment levied on persons holding similar
contracts. Black’s Law Dictionary, 2nd ed., p. 95.
34
INCOME TAX ON EMPLOYEES
SECTION 801. In addition to other taxes, there shall be levied,
collected, and paid upon the income of every individual a tax . . .
. . . TITLE XI . . .
DEFINITIONS
SECTION 1101.
(a) When used in this Act. . . (6) The term employee includes an officer of a [District of
Columbia municipal] corporation.
3.
Establish a relation with the corporate District of Columbia that can
be used to justify a presumption that they are employees / officers thereof and
therefore residents, for certain legal purposes such as taxation, of the District of
Columbia, and “rightful subjects of legislation within said District,” as originally
contemplated in Section 18 of the Act of February 21, 1871, supra, pp. 16–17, no
matter where in the world they may live, work, or travel—an unconscionable
bargain. (ROA.315–322).
MODERN SOCIAL SECURITY TERMS “STATE,” “UNITED STATES”
Title 42 U.S.C. Chapter 7 Social Security § 1301 Definitions provides, in
pertinent part:
(a) When used in this chapter—
(1) The term “State”, except where otherwise provided, includes the
District of Columbia and the Commonwealth of Puerto Rico . . .
Virgin Islands and Guam. . . . American Samoa, the Northern Mariana
Islands, and the Trust Territory of the Pacific Islands. . . .
(2) The term “United States” when used in a geographical sense
means, except where otherwise provided, the States.
. . . (b) The terms “includes” and “including” when used in a
definition contained in this chapter shall not be deemed to exclude
other things otherwise within the meaning of the term defined.
35
The definition in 42 U.S.C. § 1301(b) is substantially the same as that of §
1101(b) of the Social Security Act and means exactly the same thing. Applying
the meaning of the Title 42 U.S.C. term “includes” to the 42 U.S.C. § 1301(a)(1)
definition of “State” reveals that the bodies politic are the District of Columbia,
Guam, American Samoa, the Commonwealth of Puerto Rico, the Virgin Islands,
and the Commonwealth of the Northern Mariana Islands and no other.13
(ROA.316).
Wherefore, the Title 42 U.S.C. Chapter 7-geographical United States is the
collective of the respective sections of territory occupied by the six aforesaid
bodies politic.
CONTROLLING DEFINITION OF “UNITED STATES” IN TITLE 26 U.S.C.
The nexus between Social Security and the Internal Revenue Code is Sec.
801 of the original Social Security Act (“Income Tax on Employees,” supra, p. 35)
and 26 U.S.C. § 6109(d) Use of social security account number.
Title 26 U.S.C. § 7701(a)(9) United States is the controlling definition of
that term and comprehends the respective sections of territory occupied by the
bodies politic (“States”) of the District of Columbia, Commonwealth of Puerto
Rico, Virgin Islands, Guam, American Samoa, and Commonwealth of the
Northern Mariana Islands and no other. (ROA.324–326).
13
The Trust Territory of the Pacific Islands ceases to exist in any degree as of May 25,
1994, when the United Nations ends the trusteeship for the last district thereof, the Palau district.
36
“THE STATES” OF THE UNITED STATES CODE
Title 4 U.S.C. Chapter 4 The States provides, in pertinent part:
§ 106 - Same; income tax
(a) No person shall be relieved from liability for any income tax
levied by any State, or by any duly constituted taxing authority
therein, having jurisdiction to levy such a tax, by reason of his
residing within a Federal area or receiving income from transactions
occurring or services performed in such area; and such State or taxing
authority shall have full jurisdiction and power to levy and collect
such tax in any Federal area within such State to the same extent and
with the same effect as though such area was not a Federal area. . . .
§ 110 - Same; definitions
As used in sections 105–109 of this title—
. . . (d) The term “State” includes any Territory or possession of the
United States.
Application of expressio unius est exclusio alterius to 4 U.S.C. §110(d)
reveals that for purposes of income tax under 4 U.S.C. § 106, “State” means the
political society of Guam, American Samoa, Commonwealth of Puerto Rico,
Virgin Islands, Commonwealth of the Northern Mariana Islands, Republic of the
Marshall Islands, Federated States of Micronesia, Republic of Palau, Palmyra
Atoll, Wake Atoll, Baker Island, Howland Island, Jarvis Island, Johnston Atoll,
Midway Atoll, North Island – JACADS, Sand Island, Kingman Reef, or Navassa
Island and no other.14
14
U.S. Dept. of the Interior, Office of Insular Affairs, “All OIA Jurisdictions,”
http://www.doi.gov/oia/islands/index.cfm; and “U.S. Territories under U.S. Fish and Wildlife
Jurisdiction or Shared with Johnston Atoll Chemical Agent Disposal System (JACADS),
http://www.doi.gov/oia/islands/islandfactsheet2.cfm.
37
No member of the American confederacy is a Title 4 U.S.C. Chapter 4 State
of the United States.
FROM RATIONALITY TO POLITICAL / GEOGRAPHICAL ABSURDITY
As of December 22, 1836, the section of territory occupied by Harrisburg
County is a part of what is known as the Republic of Texas.
As of December 28, 1839, the Texas Legislature change the name of
Harrisburg County to Harris County.
As of December 29, 1845, Texas is admitted into the Union and the section
of territory occupied by the commonwealth of Texas is part of what is known at
that time as the United States.
As of June 30, 1864, Congress define expressly the common noun “state” to
(1) include only each respective body politic of the territories and District of
Columbia, supra, p. 21, and (2) exclude impliedly that of Texas and the other 35
respective members of the Union as of that date.
As of March 9, 1878 (retroactive to December 1, 1873), supra, p. 21,
Congress define expressly the proper noun “State” to include only the respective
bodies politic of the Territories and District of Columbia and exclude impliedly
those of all the commonwealths of the Union.
38
As of today in Title 26 U.S.C. and every other title of the United States
Code, Congress define expressly the proper noun “United States” in a geographical
sense to include only the respective sections of territory occupied by the District of
Columbia and certain (depending on the particular title) of the Territories /
possessions and exclude impliedly those occupied by the commonwealths of the
Union.
Wherefore: There is no basis in law, as provided by Congress, for inclusion
of Harris County, Texas, as part of the United States; and the trial court erred when
it stated “But I conclude as a matter of law that [n]orth Harris County [Texas] is
part of the United States.” (ROA.535).
II.
The trial court erred when it ruled that the trial court has
jurisdiction.
A DISTINCT PATTERN OF PROCEDURE
Regarding the two different types of body politic identified in the
Constitution and discussed under Issue I of this Argument, the M.O. of Congress is
to legislate the politically inferior (District of Columbia and the Territories), to be
known by the same common or proper noun or name as is the politically superior
(State and United States), and then exploit the American People’s inability to deal
with the absurdity.
And so it is with lower non-appeals inferior courts.
39
TWO TYPES OF COURT
The Supreme Court identifies the respective type of lower non-appeals
inferior court authorized to exercise jurisdiction in territory throughout the Union
and territory identified in Articles 1 § 8(17) and 4 § 3(2) of the Constitution; to wit:
The United States District Court is not a true United States court
established under article 3 of the Constitution to administer the
judicial power of the United States therein conveyed. It is created by
virtue of the sovereign congressional faculty, granted under article 4,
3, of that instrument, of making all needful rules and regulations
respecting the territory belonging to the United States. The
resemblance of its jurisdiction to that of true United States courts, in
offering an opportunity to nonresidents of resorting to a court not
subject to local influence, does not change its character as a mere
territorial court. Balzac v. People of Porto Rico, 258 U.S. 298, 312
(1922), (ROA.407).
The term ‘District Courts of the United States,’ as used in the rules,
without an addition expressing a wider connotation, has its historic
significance. It describes the constitutional courts created under article
3 of the Constitution. Courts of the Territories are legislative courts,
properly speaking, and are not District Courts of the United States.
We have often held that vesting a territorial court with jurisdiction
similar to that vested in the District Courts of the United States does
not make it a ‘District Court of the United States.’ Reynolds v. United
States, 98 U.S. 145 , 154; The City of Panama, 101 U.S. 453 , 460; In
re Mills, 135 U.S. 263, 268 , 10 S.Ct. 762; McAllister v. United
States, 141 U.S. 174, 182 , 183 S., 11 S.Ct. 949; Stephens v. Cherokee
Nation, 174 U.S. 445, 476 , 477 S., 19 S.Ct. 722; Summers v. United
States, 231 U.S. 92, 101 , 102 S., 34 S.Ct. 38; United States v.
Burroughs, 289 U.S. 159, 163 , 53 S.Ct. 574. Not only did the
promulgating order use the term District Courts of the United States in
its historic and proper sense, but the omission of provision for the
application of the rules to the territorial courts and other courts
mentioned in the authorizing act clearly shows the limitation that was
intended. Mookini v. United States, 303 U.S. 201, 205 (1938).
(ROA.407–408).
40
The Constitution provides for constitutional courts expressly in Article 3 § 1,
territorial courts impliedly in Article 4 § 3(2).
There are two legislatures in the District of Columbia (supra, pp. 16–17);
that of the national government, as provided in the Constitution, and that of the
municipal government, as provided in the Act of February 21, 1871 (id.), each of
which goes by the same name: “Congress.” The legislature of the former creates
constitutional courts; of the latter, territorial courts—both by Act of Congress.
Title 28 U.S.C. does not provide a definition for the territorial court
identified in Balzac and Mookini, supra, i.e., the “United States District Court.”
Notwithstanding this omission, however, because the judges of this particular
species of lower non-appeals inferior court are entitled to hold office during good
behavior, 28 U.S.C. § 451 provides, albeit impliedly, for inclusion of each such
court as a “court of the United States,” just like the other court fora, supreme and
inferior, enumerated in the definition of that term; to wit, in pertinent part:
TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE.
. . . CHAPTER 21—GENERAL PROVISIONS APPLICABLE TO
COURTS AND JUDGES
§ 451. Definitions
As used in this title:
The term “court of the United States” includes the Supreme Court
of the United States, courts of appeals, district courts constituted by
chapter 5 of this title, including the Court of International Trade and
any court created by Act of Congress the judges of which are entitled
to hold office during good behavior.
. . . The term “judge of the United States” includes judges of the
courts of appeals, district courts, Court of International Trade and any
41
court created by Act of Congress, the judges of which are entitled to
hold office during good behavior.
. . . (June 25, 1948, ch. 646, 62 Stat. 907 . . .) [Emphasis added.]
Irrespective of any nominal common or proper noun / name Congress may
create to group certain inferior court fora together, the geographical area over
which a particular lower non-appeals inferior court exercises jurisdiction reveals
whether said court is an Article III constitutional or Article IV territorial court; to
wit:
ï‚· Constitutional courts exercise limited jurisdiction in certain counties
situate in sections of territory occupied by commonwealths united by and
under authority of the Constitution and admitted into the Union; and
ï‚· Territorial courts exercise plenary jurisdiction without the geographical
area occupied by the aforesaid commonwealths, in territory described in
Articles 1 § 8(17) and 4 § 3(2) of the Constitution.
SECOND CONGRESSIONAL LEGISLATIVE STRATAGEM:
CONGRESS GIVE CONSTITUTIONAL AND TERRITORIAL COURTS THE SAME NAME
Notwithstanding that Title 28 U.S.C. provides no definition for the territorial
court identified supra in Balzac and Mookini, i.e., the “United States District
Court,” said title nevertheless provides, in pertinent part:
§ 132. Creation and composition of district courts
(a) There shall be in each judicial district a district court which shall
be a court of record known as the United States District Court for the
district.
. . . (June 25, 1948, ch. 646, 62 Stat. 895 . . .)
42
The Supreme Court in Balzac and Mookini, however, admonishes that:
The United States District Court is not a true United States court
established under article 3 of the Constitution . . . The resemblance of
its jurisdiction to that of true United States courts . . . does not change
its character as a mere territorial court. Balzac, supra, p. 40.
[V]esting a territorial court with jurisdiction similar to that vested in
the District Courts of the United States does not make it a ‘District
Court of the United States.’ Mookini, supra, p. 40.
Whereas, (1) the trial court is a “United States District Judge,” which, like
“United States District Court,” is not defined in Title 28 U.S.C., (2) the trial court
is a judge of a court created by Act of Congress and entitled to hold office during
good behavior, and (3) the forum of the trial court is a United States District Court:
It is essential for jurisdictional purposes to ascertain whether the trial court is “a
true United States court established under article 3 of the Constitution,” Balzac,
supra, p. 40, or “a mere territorial court,” id.
LOWER INFERIOR COURTS AND FEDERAL DEBT COLLECTION
The United States Code provides, in pertinent part:
TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE
. . . CHAPTER 176—FEDERAL DEBT COLLECTION
PROCEDURE
§ 3001. Applicability of chapter
(a) IN GENERAL.—Except as provided in subsection (b), the¹ chapter
provides the exclusive civil procedures for the United States—
(1) to recover a judgment on a debt; or
(2) to obtain, before judgment on a claim for a debt, a remedy in
connection with such claim.
(b) LIMITATION.—To the extent that another Federal law specifies
procedures for recovering on a claim or a judgment for a debt arising
43
under such law, those procedures shall apply to such claim or
judgment to the extent those procedures are inconsistent with this
chapter.
(c) AMOUNTS OWING OTHER THAN DEBTS.—This chapter shall not
apply with respect to an amount owing that is not a debt or to a claim
for an amount owing that is not a debt.
¹ So in original. Probably should be “this”.
§ 3002. Definitions
As used in this chapter:
(1) “Counsel for the United States” means—
(A) a United States attorney, an assistant United States
attorney designated to act on behalf of the United States attorney,
or an attorney with the United States Department of Justice or
with a Federal agency who has litigation authority;
. . . (2) “Court” means any court created by the Congress of the
United States, excluding the United States Tax Court.
(3) “Debt” means—
. . . (B) an amount that is owing to the United States on
account of a[n] . . . assessment, penalty . . . interest, tax . . . but
that is not owing under the terms of a contract originally entered
into by only persons other than the United States;
and includes any amount owing to the United States for the benefit
of an Indian tribe or individual Indian, but excludes any amount to
which the United States is entitled under section 3011(a).
. . . (8) “Judgment” means a judgment, order, or decree entered in
favor of the United States in a court and arising from a civil or
criminal proceeding regarding a debt.
. . . (15) “United States” means—
(A) a Federal corporation;
(B) an agency, department, commission, board, or other entity
of the United States; or
(C) an instrumentality of the United States.
Because this case is an action to reduce to judgment a claim consisting of
(alleged) federal income tax assessments against Trowbridge and to collect
(alleged) taxes, penalties, and interest due in respect thereof, the subject matter of
44
said civil proceeding is a kind of (alleged) debt, 28 U.S.C. §3002(3)(B), against
which the provisions of Title 28 U.S.C. Chapter 176 Federal Debt Collection
Procedure obtain.
TITLE 28 U.S.C. CHAPTER 176 TERMS OF ART “COURT,” “UNITED STATES”
Re the 28 U.S.C. § 3002(2) definition of “court” / “Court,” it is clear that the
trial court is not the United States Tax Court.
Said definition of “court” / “Court,” however, uses within its provisions
another 28 U.S.C. § 3002 term, “United States.” Wherefore, before we can
determine the full extent of the meaning of the 28 U.S.C. § 3002(2) definition of
“court” / “Court” we must account for the meaning of “United States” in 28 U.S.C.
§ 3002(15).
Whereas, parts (B) and (C) of 28 U.S.C. § 3002(15) use “United States” as a
principal part of their respective definition of “United States,” making the meaning
of said definitions unclear / uncertain / ambiguous and undeterminable unless the
definition in part (A) is applied thereto: Part (A) of 28 U.S.C. § 3002(15) is the
controlling definition of the three—and in Title 28 U.S.C. Chapter 176 Federal
Debt Collection Procedure, “United States” means a Federal corporation.
Returning to the pertinent portion of 28 U.S.C. § 3002(2): The term “court” /
“Court” means any court created by the Congress of a Federal corporation.
45
Whereas, only one Federal corporation has a Congress: The trial court is a
court created by the legislature of the District of Columbia municipal corporation
“by virtue of the sovereign congressional faculty, granted under article 4, 3,”
Balzac, supra, p. 40, and therefore a territorial court whose jurisdiction is limited
to geographical area identified in Article 1 § 8(17) or 4 § 3(2) of the Constitution.
TROWBRIDGE’S RESIDENCE, DOMICIL, AND LEGAL RESIDENCE
Trowbridge is a resident of Harris County, Texas. (ROA.153, 181).
The geographical area occupied by Harris County, Texas, is situate without
every section of territory identified in Article 1 § 8(17) and 4 § 3(2) of the
Constitution and the jurisdiction of any territorial court.
The material / physical fact of Trowbridge’s residence for the general
purposes of life and major life interests, in the geographical area occupied by
Harris County, Texas, i.e., Trowbridge’s “preeminent headquarters,” bars
peremptorily any claim that for the purpose of taxation Trowbridge resides in the
District of Columbia; to wit:
When one intends the facts to which the law attaches consequences,
he must abide the consequences whether intended or not. 13. One can
not elect to make his home in one place in point of interest and
attachment and for the general purposes of life, and in another, where
he in fact has no residence, for the purpose of taxation. P. 426. 14.
Physical facts of residence, united with major life interests may fix
domicile — one’s “preeminent headquarters.” Id. 15. The burden of
proof is on one who claims that an earlier domicile was abandoned for
a later one. P. 427. Texas v. Florida, 306 U.S. 398 (1939).
46
For Plaintiff to prove Plaintiff’s claims against Trowbridge and
Trowbridge’s property and that Trowbridge resides within the jurisdiction of the
trial court, a legislative Article IV territorial court, Plaintiff would have to produce
evidence consistent with the following:
To constitute a change of domicil, three things are essential: (1)
Residence in another place [District of Columbia] ; (2) an intention to
abandon the old domicil [Texas] ; and (3) an intention of acquiring a
new one [District of Columbia] ; or as some writers express it there
must be an animus non revertendi and an animus manendi, or animus
et factum [Citations omitted.] . . . Bouvier’s 8th, p. 921. (ROA.299).
Trowbridge challenges properly Plaintiff’s allegation of jurisdiction multiple
times.15 The ROA, however, reflects no evidence of jurisdiction from Plaintiff,
despite the burden to produce such; to wit:
It is also hornbook law that the party invoking federal jurisdiction
bears the burden of proving facts to establish that jurisdiction. See 13
C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure §
3522, at 62-65 (2d ed.1984); 15 J. Moore, Moore’s Federal Practice §
102.14, at 102-24 (3d ed. 1998) (“The burden of proving all
jurisdictional facts is on the party asserting jurisdiction.”); see also
Scelsa v. City University of New York, 76 F.3d 37, 40 (2d Cir.1996).
That party must allege a proper basis for jurisdiction in his pleadings
and must support those allegations with “competent proof” if a party
opposing jurisdiction properly challenges those allegations, see, e.g.,
McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56
S.Ct. 780, 80 L.Ed. 1135 (1936), or if the court sua sponte raises the
question, see, e.g., Fed.R.Civ.P. 12(h)(3); Louisville & Nashville R.R.
v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908).
Linardos v. Fortuna, 157 F.3d 945 (2d Cir. 1998).
15
ROA.56–62; 107–112; 291–336; 348–357; 382.
47
Because 28 U.S.C. § 451 provides (1) for both constitutional and territorial
courts, and (2) that a court of either species can have the same name, i.e., “United
States District Court”: It is incumbent on Plaintiff not only to demonstrate that
Trowbridge resides within the jurisdiction of a United States District Court, but
also that the particular United States District Court that is the trial court, is of the
species of lower non-appeals inferior court that has jurisdiction in the geographical
area in which Trowbridge resides. The ROA reflects no evidence of either.
The only competent evidence relating to Trowbridge’s residence, domicil, or
legal residence establishes that Trowbridge is neither a resident of, domiciled in,
nor a legal resident of the District of Columbia. (ROA.333–336).
Whereas: There is no basis in law for any allegation in the Complaint; and
Whereas: The Court is a 28 U.S.C. § 3002(2) court created by the legislature
of the District of Columbia municipal corporation (and authorized to exercise
personal jurisdiction and enter judgments in criminal proceedings, 28 U.S.C. §
3002(8), involving the same kind of debt that Trowbridge is alleged to have, 28
U.S.C. § 3002(3)(B)) and a territorial court of plenary jurisdiction; and
Whereas: Trowbridge resides not within the jurisdiction of the trial court, as
alleged by Plaintiff (ROA.1); and
Whereas: The trial court is bereft of jurisdiction in Harris County, Texas,
48
Wherefore: The trial court erred when it ruled “This court has jurisdiction.1”
and “1 28 U.S.C. § 1340 (2012).” (ROA.380).
CONCLUSION
The mystery as to why Plaintiff would decline Trowbridge’s offer to
discharge the debt alleged in the Complaint and bring things to a conclusion at the
outset is now solved: actual legislative fraud on the part of Congress and connivance
therewith by claimant United States and counsel for claimant United States.
“Uno absurdo dato, infinita sequuntur. One absurdity being allowed, an
infinity follow,” Bouvier’s 8th, p. 2166, and the solution to the seeming infinity of
absurdities abounding in the wake of the seminal legislative absurdities identified
herein, is sober application of the same universal rules of statutory construction
and interpretation used to make, declare, and apply all statutes.
The Supreme Court re ordinary acts that alter the Constitution (e.g., ex post
facto perversion of the meaning of words used by the Framers, supra):
It is a proposition too plain to be contested, that the constitution
controls any legislative act repugnant to it; or, that the legislature may
alter the constitution by an ordinary act.
Between these alternatives there is no middle ground. The
constitution is either a superior, paramount law, unchangeable by
ordinary means, or it is on a level with ordinary legislative acts, and
like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act
contrary to the constitution is not law: if the latter part be true, then
written constitutions are absurd attempts, on the part of the people, to
limit a power in its own nature illimitable.
49
Certainly all those who have framed written constitutions
contemplate them as forming the fundamental and paramount law of
the nation, and consequently the theory of every such government
must be, that an act of the legislature repugnant to the constitution is
void. Marbury v. Madison, 5 U. S. 137, 176 (1803).
Two simple guidelines allow anyone to discern whether a particular piece of
congressional legislation is municipal:
1. If any object of the definition of “United States” provided in the
legislation is any section of territory whose body politic is one over
whom the Constitution authorizes Congress to exercise personal
legislation; or
2. If the legislation authorizes exercise of personal jurisdiction.
The former describes Title 26 U.S.C.; the latter, Title 28 U.S.C. Chapter 176.
De fide et officio judicis non recipitur quaestio, sed de scientia, sive
error sit juris sive facti. The good faith and honesty of purpose of a
judge cannot be questioned, but his decision may be impugned for
error either of law or of fact. Bouvier’s 8th, p. 2130.
“Error juris nocet. Error of law is injurious,” Bouvier’s 8th, p. 2132, and the
ROA is devoid of evidence that Trowbridge is an “individual who is a citizen or
resident of the United States . . . [or] nonresident alien individual,” 26 C.F.R. § 1.11(a)(1), or resides within the jurisdiction of the trial court; or that the trial court, a
legislative Article IV territorial court, has jurisdiction in Harris County, Texas.
For these reasons, there is no basis in law for either the trial court’s
conclusion in Issue I or ruling in Issue II.
50
As a footnote hereto: Whereas, Title 28 U.S.C. Chapter 176 provides a
specific definition for “United States,” with regard to the instant proceeding the
ordinary usage and definition of “United States” is forfeit and said technical term /
term of art means only what Congress legislate it to mean, supra, p. 26, SCOTT n.
45; “Table 1. Linguistic Inference Canons,” p. 28.
Wherefore, Trowbridge would request the Court take judicial notice that (1)
claimant United States is a Federal corporation, (2) counsel for claimant United
States, i.e., Counsel for the United States, 28 U.S.C. § 3002(1), are counsel for a
Federal corporation, (3) the instant United States District Judge, i.e., the trial
court, is a Federal corporation District Judge, and (4) said counsel and trial court
are all legislative-branch officers of the same for-profit commercial enterprise,16
the District of Columbia municipal corporation, supra, pp. 16–17.
The aforesaid facts constitute a breach of the constitutional doctrine of
separation of powers (see also 28 U.S.C. § 528 re political conflict of interest) that
removes any appearance of impartiality.
PRAYER FOR RELIEF
WHEREFORE, Trowbridge prays the Court:
1. That the Court reverse the Amended Final Judgment of the trial court
and annul the trial court’s Order of Sale and Vacature;
16
The United States is located in the District of Columbia. U.C.C. § 9-307(h).
51
2. That the Court dismiss with prejudice the Complaint of the Plaintiff
for clear absence of all jurisdiction;
3. That the Court order Plaintiff to terminate all assessments made and
liens filed against Trowbridge or Trowbridge’s property in respect of
the subject matter of the Complaint;
4. That the Court order that any other action the subject matter of which
is the same as that alleged in the Complaint and filed subsequent to
the trial court’s Amended Final Judgment be dismissed with prejudice
for clear absence of all jurisdiction;
5. That the Court order that Plaintiff pay Trowbridge special damages
for direct and indirect financial and property injury sustained as a
result of liens filed and foreclosed in the absence of jurisdictional
authority to do so, within twenty (20) days of presentment of any
documentary invoice for such damages sworn to as true, correct, and
complete before three competent witnesses and approved by the
Court;
6. That the Court order that Plaintiff pay Trowbridge such general
damages as the Court deems just and proper for permanent loss of the
beneficial use and enjoyment of Trowbridge’s real and personal
52
property as a result of the judgment and order entered in the instant
unauthorized proceeding;
7. That the Court order that Plaintiff pay Trowbridge such exemplary
damages as the Court deems just and proper for (a) intangible
personal injury,17 and (b) injury to Trowbridge’s social and
professional reputation and prestige, sustained as a natural and
probable consequence of the stigma / opprobrium associated with the
instant unauthorized action, judgment, and order;
8. That the Court order that Plaintiff pay Trowbridge restitution in full
for all sums paid by Trowbridge and all sums levied / seized by
Plaintiff’s agents, over Trowbridge’s lifetime, in respect of income
tax; and
9. For such other and further relief that the Court may deem just and fair.
Respectfully submitted,
_________________________________
John Parks Trowbridge, Jr.
9816 Memorial Boulevard #205
Humble, Texas
(281) 540-2329
17
See State Farm Mut. Auto Ins. Co. v. Campbell and BMW of North America Inc. v.
Gore re intangible personal injury.
53
ADDENDUM
CONSTITUTIONAL PROVISIONS
U.S. Const. art. I, § 8, cl. 1–18
The Congress shall have Power To lay and collect Taxes, Duties,
Imposts and Excises, to pay the Debts and provide for the common
Defence and general Welfare of the United States; but all Duties,
Imposts and Excises shall be uniform throughout the United States;
To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on
the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and
fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and
current Coin of the United States;
To establish Post Offices and post Roads;
To promote the Progress of Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high
Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make
Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that
Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and
naval Forces;
To provide for calling forth the Militia to execute the Laws of the
Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and
for governing such Part of them as may be employed in the Service of
the United States, reserving to the States respectively, the
Appointment of the Officers, and the Authority of training the Militia
according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such
District (not exceeding ten Miles square) as may, by Cession of
particular States, and the Acceptance of Congress, become the Seat of
the Government of the United States, and to exercise like Authority
over all Places purchased by the Consent of the Legislature of the
State in which the Same shall be, for the Erection of Forts, Magazines,
Arsenals, dock-Yards, and other needful Buildings;—And
To make all Laws which shall be necessary and proper for carrying
into Execution the foregoing Powers, and all other Powers vested by
this Constitution in the Government of the United States, or in any
Department or Officer thereof.
U.S. Const. art. III, § 1
The judicial Power of the United States, shall be vested in one
supreme Court, and in such inferior Courts as the Congress may from
time to time ordain and establish. The Judges, both of the supreme and
inferior Courts, shall hold their Offices during good Behaviour, and
shall, at stated Times, receive for their Services, a Compensation,
which shall not be diminished during their Continuance in Office.
U.S. Const. art. III, § 2, cl. 1–2
The judicial Power shall extend to all Cases, in Law and Equity,
arising under this Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under their Authority;—to all
Cases affecting Ambassadors, other public Ministers and Consuls;—
to all Cases of admiralty and maritime Jurisdiction;—to Controversies
to which the United States shall be a Party;—to Controversies
between two or more States;— between a State and Citizens of
another State,—between Citizens of different States,—between
Citizens of the same State claiming Lands under Grants of different
States, and between a State, or the Citizens thereof, and foreign States,
Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and
Consuls, and those in which a State shall be Party, the supreme Court
shall have original Jurisdiction. In all the other Cases before
mentioned, the supreme Court shall have appellate Jurisdiction, both
as to Law and Fact, with such Exceptions, and under such Regulations
as the Congress shall make.
U.S. Const. art. IV, § 3, cl. 2
The Congress shall have Power to dispose of and make all needful
Rules and Regulations respecting the Territory or other Property
belonging to the United States; and nothing in this Constitution shall
be so construed as to Prejudice any Claims of the United States, or of
any particular State.
STATUTES
26 U.S. Code § 6109 - Identifying numbers
. . . (d) Use of social security account number
The social security account number issued to an individual for
purposes of section 205(c)(2)(A) of the Social Security Act shall,
except as shall otherwise be specified under regulations of the
Secretary, be used as the identifying number for such individual for
purposes of this title.
26 U.S. Code § 7701 - Definitions
(a) When used in this title, where not otherwise distinctly expressed or
manifestly incompatible with the intent thereof—
. . . (9) United States
The term “United States” when used in a geographical sense
includes only the States and the District of Columbia.
26 U.S. Code Chapter 75, Subchapter A - Crimes
PART I—GENERAL PROVISIONS (§§ 7201–7217)
PART II—PENALTIES APPLICABLE TO CERTAIN TAXES
(§§ 7231–7241)
28 U.S. Code § 41 - Number and composition of circuits
The thirteen judicial circuits of the United States are constituted as
follows:
Circuits
Composition
. . . Fifth
District of the Canal Zone, Louisiana, Mississippi,
Texas.
28 U.S. Code § 124 - Texas
Texas is divided into four judicial districts to be known as the
Northern, Southern, Eastern, and Western Districts of Texas.
. . . (b) The Southern District comprises seven divisions.
. . . (2) The Houston Division comprises the counties of Austin,
Brazos, Colorado, Fayette, Fort Bend, Grimes, Harris, Madison,
Montgomery, San Jacinto, Walker, Waller, and Wharton.
Court for the Houston Division shall be held at Houston.
28 U.S. Code § 528 - Disqualification of officers and employees of
the Department of Justice
The Attorney General shall promulgate rules and regulations which
require the disqualification of any officer or employee of the
Department of Justice, including a United States attorney or a member
of such attorney’s staff, from participation in a particular investigation
or prosecution if such participation may result in a personal, financial,
or political conflict of interest, or the appearance thereof. Such rules
and regulations may provide that a willful violation of any provision
thereof shall result in removal from office.
(Added Pub. L. 95–521, title VI, § 603(a), Oct. 26, 1978, 92 Stat.
1874.)
28 U.S. Code § 1291 - Final decisions of district courts
The courts of appeals (other than the United States Court of Appeals
for the Federal Circuit) shall have jurisdiction of appeals from all final
decisions of the district courts of the United States, the United States
District Court for the District of the Canal Zone, the District Court of
Guam, and the District Court of the Virgin Islands, except where a
direct review may be had in the Supreme Court. The jurisdiction of
the United States Court of Appeals for the Federal Circuit shall be
limited to the jurisdiction described in sections 1292 (c) and (d) and
1295 of this title.
28 U.S. Code § 1340 - Internal revenue; customs duties
The district courts shall have original jurisdiction of any civil action
arising under any Act of Congress providing for internal revenue, or
revenue from imports or tonnage except matters within the
jurisdiction of the Court of International Trade.
28 U.S. Code § 3002 - Definitions
As used in this chapter:
. . . (15) “United States” means—
(A) a Federal corporation;
(B) an agency, department, commission, board, or other entity of
the United States; or
(C) an instrumentality of the United States.
CASES
State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003):
Our jurisprudence and the principles it has now established
demonstrate, however, that, in practice, few awards exceeding a
single-digit ratio between punitive and compensatory damages, to a
significant degree, will satisfy due process. In Haslip, in upholding a
punitive damages award, we concluded that an award of more than
four times the amount of compensatory damages might be close to the
line of constitutional impropriety. 499 U. S., at 23-24. We cited that 4to-1 ratio again in Gore. 517 U. S., at 581. The Court further
referenced a long legislative history, dating back over 700 years and
going forward to today, providing for sanctions of double, treble, or
quadruple damages to deter and punish. Id., at 581, and n. 33. While
these ratios are not binding, they are instructive. They demonstrate
what should be obvious: Single-digit multipliers are more likely to
comport with due process, while still achieving the State’s goals of
deterrence and retribution, than awards with ratios in range of 500 to
1, id., at 582, or, in this case, of 145 to 1.
Nonetheless, because there are no rigid benchmarks that a punitive
damages award may not surpass, ratios greater than those we have
previously upheld may comport with due process where “a
particularly egregious act has resulted in only a small amount of
economic damages.” Ibid.; see also ibid. (positing that a higher ratio
might be necessary where “the injury is hard to detect or the monetary
value of noneconomic harm might have been difficult to determine”).
. . . The precise award in any case, of course, must be based upon
the facts and circumstances of the defendant’s conduct and the harm
to the plaintiff.
BMW of North America Inc. v. Gore, 517 U.S. 559, 575, 576, 581,
589 (1996):
Perhaps the most important indicium of the reasonableness of a
punitive damages award is the degree of reprehensibility of the
defendant’s conduct.[23] As the Court stated nearly 150 years ago,
exemplary damages imposed on a defendant should reflect “the
enormity of his offense.” Day v. Woodworth, 13 How. 363, 371
(1852). See also St. Louis, I. M. & S. R. Co. v. Williams, 251 U. S. 63,
66-67 (1919) (punitive award may not be “wholly disproportioned to
the offense”); Browning-Ferris Industries of Vt., Inc. v. Kelco
Disposal, Inc., 492 U. S. 257, 301 (1989) (O’Connor, J., concurring in
part and dissenting in part) (reviewing court “should examine the
gravity of the defendant’s conduct and the harshness of the award of
punitive damages”).[24] . . . Similarly, “trickery and deceit,” TXO,
509 U. S., at 462, are more reprehensible than negligence. [p. 575]
. . . To be sure, infliction of economic injury, especially when done
intentionally through affirmative acts of misconduct, id., at 453, or
when the target is financially vulnerable, can warrant a substantial
penalty. [p. 576]
. . . TXO, following dicta in Haslip, refined this analysis by
confirming that the proper inquiry is “`whether there is a reasonable
relationship between the punitive damages award and the harm likely
to result from the defendant’s conduct as well as the harm that
actually has occurred.’ “TXO, 509 U. S., at 460 (emphasis in original),
quoting Haslip, 499 U. S., at 21. [p. 581]
. . . (“Oppression” includes “[s]ubjecting a person to . . . unjust
hardship in conscious disregard of that person’s rights”). [p. 589]
[23] “The flagrancy of the misconduct is thought to be the primary consideration
in determining the amount of punitive damages.” Owen, A Punitive Damages
Overview: Functions, Problems and Reform, 39 Vill. L. Rev. 363, 387 (1994).
CERTIFICATE OF COMPLIANCE
Certificate of Compliance with Type-Volume Limitation,
Typeface Requirements, and Type-Style Requirements
Case No. 14-20333
1.
Pursuant to FED. R. APP. P. 32(a)(7)(C)(i), I, John Parks Trowbridge, Jr.,
certify that this brief complies with the type-volume limitation of FED. R. APP. P.
32(a)(7)(B)(i) and 5TH CIR. R. 32.2 because:
This brief contains 13,945 words, excluding the parts of the brief
exempted by FED. R. APP. P. 32(a)(7)(B)(iii) and 5TH CIR. R. 32.2.
[Word count verified in Microsoft Word (PC) 2007, and confirmed in
Microsoft Word for Mac 2011, version 14.4.2, as 13,938 words,
discrepancy unexplained]
2.
I, John Parks Trowbridge, Jr., certify that this brief complies with the
typeface requirements of FED. R. APP. P. 32(a)(5)(A) and 5TH CIR. R. 32.1 and the
type-style requirements of FED. R. APP. P. 32(a)(6) because:
This brief is prepared in a proportionally spaced typeface using
Microsoft Word (PC), version 2007, in Times New Roman, 14-point
font for text and12-point font for footnotes.
3.
I, John Parks Trowbridge, Jr., understand that 5TH CIR. R. 32.3 and 32.5
provide that a material misrepresentation in this certificate of compliance or
circumvention in the brief of the type-volume limits in FED. R. APP. P.
32(a)(7)(B)(i) may result in striking the brief and sanctions against me.
Dated: _____________________
______________________________
John Parks Trowbridge, Jr.
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14-20333
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOHN PARKS TROWBRIDGE, JR.,
Defendant-Appellant
ON APPEAL FROM THE JUDGMENT OF
THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
BRIEF FOR THE APPELLEE
TAMARA W. ASHFORD
Acting Assistant Attorney General
ROBERT W. METZLER
(202) 514-3938
(202) 514-2921
CAROL BARTHEL
Attorneys
Tax Division
Department of Justice
Post Office Box 502
Washington, D.C. 20044
Of Counsel:
KENNETH MAGIDSON
United States Attorney
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STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Fifth Circuit Rule 28.2.3, counsel for the appellee
believe that oral argument is not necessary in this case because the
appellant is proceeding pro se and his arguments are frivolous.
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TABLE OF CONTENTS
Page
Statement regarding oral argument .......................................................... i
Table of contents .......................................................................................ii
Table of authorities ................................................................................. iii
Statement of jurisdiction........................................................................... 1
Statement of the issue ............................................................................... 3
Statement of the case ................................................................................ 3
1.
The complaint and answer ...................................................... 4
2.
The parties’ motions ................................................................ 6
3.
The District Court’s ruling and judgment ............................ 10
Summary of argument ............................................................................ 12
Argument ................................................................................................. 14
The District Court properly ordered that the assessments of
Trowbridge’s tax liabilities for 1993 through 1997 be reduced
to judgment, the related tax liens foreclosed, and the
property sold, with proceeds to be applied to the tax
liabilities ......................................................................................... 14
Standard of review ......................................................................... 14
A.
Introduction ........................................................................... 15
B.
The tax assessments were properly reduced to
judgment................................................................................ 16
C.
The foreclosure of the liens against Trowbridge’s
real property was proper ....................................................... 19
D.
The District Court did not abuse its discretion in
ordering the sale of the real property ................................... 22
E.
Trowbridge’s arguments are frivolous .................................. 24
Conclusion ............................................................................................... 30
Certificate of service ................................................................................ 31
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Page(s)
Certificate of compliance with Rule 32(a) ............................................... 32
TABLE OF AUTHORITIES
Cases:
Affiliated Foods, Inc. v. Commissioner,
154 F.3d 527 (5th Cir. 1998) ................................................. 16
Bluebonnet Hotel Ventures, LLC. v. Wells Fargo Bank, N.A.,
754 F.3d 272 (5th Cir. 2014) ............................................ 14-15
Caniff v. Commissioner,
1995 WL 216861 (7th Cir. 1995) ........................................... 26
Crain v. Commissioner,
737 F.2d 1417 (5th Cir. 1984) ............................................... 29
Duffie v. United States,
600 F.3d 362 (5th Cir. 2010) ................................................. 17
DuPree v. Saunders,
588 F.3d 282 (5th Cir. 2009) ........................................... 15, 24
Hannah v. United States,
523 F.3d 597 (5th Cir. 2008) ................................................. 24
In re Becraft,
885 F.2d 547 (9th Cir. 1989) ................................................. 27
Lonsdale v. United States,
919 F.2d 1440 (10th Cir. 1990) ............................................. 27
Medina v. INS,
993 F.2d 499 (5th Cir. 1993) ................................................. 17
Miller v. Nationwide Life Ins. Co.,
391 F.3d 698 (5th Cir. 2004) ................................................. 24
Stearman v. Commissioner,
436 F.3d 533 (5th Cir. 2006) ................................................. 25
Stuart v. United States,
337 F.3d 31 (1st Cir. 2003) .................................................... 18
Test Masters Educational Services, Inc. v. Singh,
428 F.3d 559 (5th Cir. 2005) ................................................. 17
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Cases (continued):
Page(s)
Trowbridge et al. v. Commissioner,
T.C. Memo. 2003-165,
2003 WL 21278414 (2003)........................................... 8, 16, 23
Trowbridge v. Commissioner,
T.C. Memo. 2003-164,
2003 WL 21278475 (2003)........................................... 7, 16, 23
United States v. Beale,
574 F.3d 512 (8th Cir. 2009) ................................................. 26
United States v. Bess,
357 U.S. 51 (1958) ................................................................. 21
United States v. Brosnan,
363 U.S. 237 (1960) ............................................................... 22
United States v. Burnett,
452 Fed. App’x 569 (5th Cir. 2011) ....................................... 18
United States v. Cache Valley Bank,
866 F.2d 1242 (10th Cir. 1989) ....................................... 19, 21
United States v. Chila,
871 F.2d 1015 (11th Cir. 1989) ............................................. 18
United States v. Collins,
920 F.2d 619 (10th Cir. 1990) ............................................... 27
United States v. Davenport,
484 F.3d 321 (5th Cir. 2007) ................................................. 17
United States v. Fior d’Italia, Inc.,
583 U.S. 238 (2002) ............................................................... 16
United States v. Gerads,
999 F.2d 1255 (8th Cir. 1993) ............................................... 26
United States v. Henderson,
209 Fed. App’x 401 (5th Cir. 2006) .................................. 27-28
United States v. Janis,
428 U.S. 433 (1976) ............................................................... 16
United States v. Masat,
948 F.2d 923 (5th Cir. 1991) ................................................. 28
United States v. Maxwell,
459 F.2d 22 (5th Cir 1972) .................................................... 18
United States v. McCallum,
970 F.2d 66 (5th Cir. 1992) ................................................... 18
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Cases (continued):
Page(s)
United States v. McDermott,
507 U.S. 447 (1993) ............................................................... 20
United States v. National Bank of Commerce,
472 U.S. 713 (1985) ............................................................... 20
United States v. Price,
798 F.2d 111 (5th Cir. 1986) ................................................. 26
United States v. Rodgers,
461 U.S. 677 (1983) ............................................. 13, 15, 20, 22
United States v. Saunders,
951 F.2d 1065 (9th Cir. 1991) ............................................... 28
United States v. Shanbaum,
10 F.3d 305 (5th Cir. 1994) .............................................. 17-18
United States v. Sileven,
985 F.2d 962 (8th Cir. 1993) ................................................. 28
United States v. Sloan,
939 F.2d 499 (7th Cir. 1991) ................................................. 27
United States v. Vermont,
377 U.S. 351 (1964) ............................................................... 19
United States v. Ward,
833 F.2d 1538 (11th Cir. 1987) ............................................. 29
Statutes:
Internal Revenue Code (26 U.S.C.):
§ 6321..................................................................................... 19
§ 6322..................................................................................... 19
§ 7402..................................................................................... 27
§ 7402(a) .................................................................................. 2
§ 7403........................................................................... 2, 22, 27
§ 7403(a) ................................................................................ 20
§ 7403(b) ............................................................................ 2, 20
§ 7403(c)................................................................................. 20
§ 7602(a) ................................................................................ 28
§ 7604..................................................................................... 28
§ 7604(a) ................................................................................ 29
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Statute (continued):
Page(s)
28 U.S.C.:
§ 124....................................................................................... 28
§ 1291....................................................................................... 3
§ 1331..................................................................................... 28
§ 1340........................................................................... 2, 27, 29
§ 1345................................................................................. 2, 27
§ 1912..................................................................................... 29
§ 2107(b) .................................................................................. 3
Rules and Regulations:
Fed. R. App. P.:
Rule 4(a)(1)(B) ......................................................................... 3
Rule 38................................................................................... 29
Treas. Reg. § 1.1-1(a)(1) ................................................................. 27
Miscellaneous:
Constitution of the United States ............................................. 25-26
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-20333
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOHN PARKS TROWBRIDGE, JR.,
Defendant-Appellant
ON APPEAL FROM THE JUDGMENT OF
THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
BRIEF FOR THE APPELLEE
STATEMENT OF JURISDICTION
The United States brought this suit against John Parks
Trowbridge, Jr. (“Trowbridge”), seeking to collect delinquent federal
taxes owed by Trowbridge for his 1993 through 1997 tax years. (ROA.820.) To that end, the Government sought: (i) to reduce to judgment
income tax assessments for 1993 through 1997, the unpaid balances of
which (as of September 1, 2013) totaled $3,286,335.47; (ii) to foreclose
upon related tax liens of the United States against a parcel of real
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property in which Trowbridge claimed an ownership interest (the “real
property”); and (iii) to obtain a judicial sale of the real property, with
the proceeds of sale to be distributed according to the relative priorities
of the parties’ claims. As is required in a suit seeking foreclosure of a
federal tax lien, the Government also named Freedom Ventures, UBO,
and Montgomery County (Texas) Tax Office as defendants, because they
might claim an interest in or lien on the real property. 1 See Internal
Revenue Code of 1986 (26 U.S.C.) (“I.R.C.” or “Code”) § 7403(b). The
District Court had jurisdiction pursuant to 28 U.S.C. §§ 1340 and 1345
and I.R.C. §§ 7402(a) and 7403.
On May 23, 2014, the District Court (Hon. Lynn N. Hughes)
issued an amended judgment, granting the Government judgment of
$3,326,015.01 against Trowbridge and Freedom Ventures, UBO, plus
statutory additions accruing after April 7, 2014, and ordering that the
Government could foreclose upon its tax lien against the real property.
(ROA.413.) The same day, it issued an order of sale of the real
The Government and Montgomery County Tax Office
subsequently stipulated to the relative priority of their claims against
the real property. (ROA.339-341.)
1
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property. (ROA.414-417.) That order is a final, appealable order that
disposes of all claims of the parties. On May 27, 2014, within 60 days
thereafter, Trowbridge filed a timely notice of appeal. (ROA.418.) See
28 U.S.C. § 2107(b); Fed. R. App. P. 4(a)(1)(B). This Court has
jurisdiction under 28 U.S.C. § 1291.
STATEMENT OF THE ISSUE
Whether the District Court correctly granted summary judgment
to the Government, ordering Trowbridge’s income tax liabilities for
1993 through 1997 reduced to judgment, the associated tax liens
foreclosed against the real property, and the property sold, where
Trowbridge raised only frivolous arguments in opposition to the
Government’s motion.
STATEMENT OF THE CASE
Trowbridge, a physician, is a resident of Texas. The Government
brought this suit to reduce to judgment certain unpaid assessments of
income tax, related penalties, and interest for Trowbridge’s 1993
through 1997 tax years. The suit also sought to foreclose the related
tax liens against the real property and to obtain a judicial sale of that
property, with the proceeds of the sale distributed according to the
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relative priorities of the parties’ claims. The Government moved for
summary judgment. Opposing, Trowbridge raised only frivolous
arguments, asserting that the District Court lacked jurisdiction over
him, and the Internal Revenue Code did not apply to him, because he
did not reside in “the District of Columbia or one of the territories”
(ROA.327) and thus was not “a citizen or resident of the United States”
(ROA.332). Granting summary judgment to the Government, the
District Court ordered the tax assessments reduced to judgment, the
related tax liens foreclosed upon, and the real property sold, with the
Government’s share of the proceeds to go towards Trowbridge’s tax
liabilities for the years at issue.
1.
The complaint and answer
The Government brought this suit to reduce to judgment certain
unpaid assessments of income tax, related penalties, and interest in the
following amounts (as of September 1, 2013): $371,173.71 for 1993;
$482,760.14 for 1994; $481,310.16 for 1995; $1,295,799.01 for 1996; and
$655,292.45 for 1997. (ROA.8-12.) The suit also sought to foreclose the
related tax liens against the real property, located at 25117 Ramrock
Drive, Porter, Texas, and to obtain a judicial sale of that property, with
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the proceeds of the sale to be distributed according to the relative
priority of the parties’ claims. The complaint alleged that Trowbridge
purchased the real property in 2005 and subsequently transferred the
property to Freedom Ventures, UBO, a transfer that the Government
sought to have set aside as void with respect to the Government.
(ROA.10.)
In his response to the Government’s complaint, Trowbridge
asserted that the Government had not shown that he was “born in a
State or the United States or is a citizen or resident of the United
States” or that he “is subject to the jurisdiction of the United States in
this matter.” (ROA.57.) He further asserted that the Government had
not produced proof of “the debt alleged” or evidence that he owed tax in
the amounts stated or that the real property was subject to foreclosure.
(ROA.58.) The District Court construed this response, captioned
“Conditional Acceptance and Demand for Proof or Withdrawal of
Claim,” as the answer of both Trowbridge and Freedom Ventures, UBO.
(ROA.91, 100.)
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2.
The parties’ motions
Trowbridge moved to dismiss the complaint “for lack of subjectmatter jurisdiction over the property upon which the United States
seeks to foreclose its lien.” (ROA.108.) He contended that he was
“neither a citizen or resident of the United States nor an individual nor
one with a federal tax liability.” (ROA.110.) Arguing that the term
“United States” and the jurisdiction of the court “extends only to
Federal corporations, such as the ultimate parent Federal corporation,
the District of Columbia,” he asserted that there was no evidence that
he owed the taxes alleged in the complaint. (ROA.111-112 (emphasis in
original).)
The Government moved for summary judgment. (ROA.114-120.)
The Government stated that, in January 2004, after adjudication by the
United States Tax Court of the tax deficiencies at issue against
Trowbridge, the IRS had assessed those taxes and given Trowbridge
notice and demand for payment. (ROA.115.) It stated that the
Government had recorded notices of federal tax lien with respect to
those liabilities on July 7, 2011, and October 2, 2012. (ROA.116.) The
Government asserted that the real property had been transferred to
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Trowbridge in April 2005 (ROA.115) and that, on October 25, 2012
(after the taxes were assessed and the notices of federal tax liens were
filed), Trowbridge recorded a real-property contract purportedly
transferring the property to Freedom Ventures, UBO, a trust he
controlled. (ROA.116, 119.) The Government argued that Trowbridge
was thus indebted to the United States for his outstanding tax
liabilities; that the related tax liens should be foreclosed against the
real property, to which the liens attached upon their assessment; and
that property should be ordered sold, with proceeds going towards the
tax liabilities. (ROA.118-119.)
In support of its motion for summary judgment, the Government
attached copies of the notices of federal tax lien (ROA.122-129); IRS
account transcripts for Trowbridge for the years at issue showing that
taxes had been assessed and notices sent and that tax liabilities
remained unpaid (ROA.130-149); Tax Court decisions upholding tax
deficiencies for Trowbridge’s 1991-1995 and 1996-1997 tax years
(ROA.150-204)2; the warranty deed and deed of trust transferring the
Trowbridge et al. v. Commissioner, T.C. Memo. 2003-164, 2003
WL 21278475 (2003) (determining deficiencies for years 1991-1995 and
(continued…)
2
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real property to Trowbridge (ROA.205-210); and the contract
purportedly transferring the real property from Trowbridge to Freedom
Ventures, UBO, signed by Trowbridge for himself and as “Managing
Trustee” of Freedom Ventures (ROA.211-214). 3
At an April 7, 2014 conference, the District Court judge told
Trowbridge that he had read his filings and expressed concern about
their contents. (ROA.518-520.) The judge informed Trowbridge that
Texas was part of America and that those who maintained the contrary
“are cranks who are delusional.” (ROA.520.) The court directed
Trowbridge to respond to the Government’s motion for summary
judgment, warning him that, if his response to the motion were similar
(…continued)
imposing $25,000 sanction for maintaining a proceeding primarily for
delay), on appeal, No. 04-60029 (5th Cir.), appeal dismissed, June 3,
2004; Trowbridge et al. v. Commissioner, T.C. Memo. 2003-165, 2003
WL 21278414 (2003) (determining tax deficiencies for 1996 and 1997
and imposing additional $25,000 sanction for maintaining a proceeding
primarily for delay), aff’d, 378 F.3d 432 (5th Cir. 2004) (affirming
liability determination and sanction and imposing additional $6,000
sanction for pursuing a frivolous appeal).
Trowbridge subsequently identified Freedom Ventures Trust,
UBO, as an “unincorporated business association.” (ROA.527.)
3
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to his answer to the complaint, “then the United States will win because
it will be, for all practical purposes, no answer.” (ROA.521, 523.)
Trowbridge filed an opposition to the Government’s summaryjudgment motion, combined with a renewed motion to dismiss for lack
of jurisdiction. (ROA.291-332.) In this document, he contended that
counsel for “the United States” was not authorized to represent “the
United States of America,” an allegedly different entity. (ROA.328.) He
argued that the District Court lacked jurisdiction over him, and the
Internal Revenue Code did not apply to him, because he did not reside
in the District of Columbia and thus was not “a citizen or resident of the
United States,” as opposed to “the United States of America.” (ROA.327332.) Trowbridge supported his filing only with an affidavit in which he
asserted that the Government had not produced evidence showing that
he had been born or resided in the District of Columbia. (ROA.333336.) He did not contend that he had paid the tax liabilities at issue or
that he lacked an ownership interest in the real property.
By stipulation, the Government recognized the interest of the
Montgomery County Tax Office in the real property with respect to ad
valorum taxes, penalties, and interest, and the Tax Office agreed to
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entry of judgment forfeiting the property to the Government and
providing for payment of the Tax Office’s interest before that of the
United States. (ROA.339-341.)
After the District Court denied Trowbridge’s motion to dismiss the
complaint (ROA.347), Trowbridge filed two such additional motions to
dismiss the complaint (ROA.348-359, ROA.360-367), which the court
also denied (ROA.380). Thereafter, Trowbridge filed a “formal
challenge of Plaintiff’s allegation that Defendant resides within the
jurisdiction of the Court” (ROA.382) and an offer “to discharge in full
the tax liability alleged in such action upon alleged plaintiff United
States of America’s demonstration that Defendant is a citizen or
resident of the United States” (ROA.386); an “objection” (ROA.391-401)
to the court’s denial of his motions to dismiss; and an “objection to
denial of due process of law” (ROA.402-410) that questioned “the court’s
competence to pass upon the subject-matter of this suit” (ROA.407).
3.
The District Court’s ruling and judgment
Trowbridge did not appear at the May 21, 2014 hearing on the
pending motions, despite having been notified. (ROA.411, 534.) At the
hearing, the District Court stated that it “conclude[d] as a matter of law
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that North Harris County is part of the United States” and that “the
United States” and “the United States of America” were the same
entity. (ROA.535.) Noting that the Tax Court’s decisions respecting
Trowbridge’s tax liabilities at issue were entered 11 years previously,
and that Trowbridge had “done nothing constructive by way of
negotiation or payment” respecting those liabilities, but had been
“obstreperous” and “dishonest,” the court instructed the Commissioner’s
counsel to prepare an order of sale of the real property. (ROA.537-538.)
On May 22, 2014, the District Court entered a final judgment
(ROA.412) and, on May 23, 2014, an amended final judgment
(ROA.413). In the amended final judgment, the court held that the
Government: (i) “[t]akes $3,326,015.01, plus statutory additions
accruing after April 7, 2014, from John P. Trowbridge including his
assumed name Freedom Ventures, UBO”; (ii) had tax liens on
Trowbridge’s property, including the real property at issue; (iii) could
foreclose upon its liens against the real property; and (iv) had “all right,
title, and interest in the property including the right to possession.”
(ROA.413.) The same day, the court issued an order of sale and
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vacature that set forth the terms and conditions of the sale. (ROA.414417.)
Trowbridge appealed. (ROA.418.)4
SUMMARY OF ARGUMENT
The District Court correctly ordered the tax assessments for
Trowbridge’s 1993 through 1997 tax years reduced to judgment. The
United States Tax Court (affirmed by this Court) had determined that
Trowbridge owed tax deficiencies and penalties for those years in
decisions that are res judicata in this proceeding. The Government
presented certified transcripts of account for Trowbridge’s 1993 through
1997 tax years that established that that the assessments of the
deficiencies and penalties determined by the Tax Court were lawfully
made and that those assessments (and accrued interest) remained
unpaid. Trowbridge, on the other hand, presented no evidence calling
into question the transcripts’ accuracy or validity.
Trowbridge moved in the District Court for a stay of the order of
sale (ROA.419-22), which the court denied (ROA.435). On May 29,
2014, Trowbridge moved in this Court for a stay of the order of sale
(ROA.437-487), which this Court denied on June 4, 2014 (ROA.505).
4
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The District Court also correctly ordered foreclosure of the tax
liens arising from the unpaid assessments for 1993 through 1997
against the real property, in which Trowbridge held an ownership
interest. When a taxpayer fails to pay a tax liability after notice of
assessment and demand for payment, a lien for the unpaid tax arises
automatically and attaches to all property and rights to property of the
taxpayer. Here, the Government presented evidence showing that the
IRS properly sent notice and demand to Trowbridge, and that he held
an ownership interest in the property, a fact that Trowbridge did not
dispute.
Finally, the District Court acted well within its discretion in
entering an order of sale of the real property. The Supreme Court has
stated that “the exercise of limited equitable discretion in individual
cases can take into account both the Government’s interest in prompt
and certain collection of delinquent taxes and the possibility that
innocent third parties will be unduly harmed by that effort.” United
States v. Rodgers, 461 U.S. 677, 709 (1983). There was no evidence
that, without sale of the property, the Government would be able to
recover the portion of the unpaid tax liabilities that the sale proceeds
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represent, and there was no evidence that an innocent third party
would be injured by the sale.
On appeal, Trowbridge advances only frivolous arguments that
were rejected by the District Court in the course of these proceedings.
He contends that the Code does not apply to him, and the District Court
lacked jurisdiction over him, because United States Code Titles 26 and
28 “are not national but municipal legislation of the District of
Columbia municipal corporation” and he “neither resides nor is
domiciled in nor a legal resident of the District of Columbia.” (Br. 1112.) These nonsensical arguments have been repeatedly rejected by the
courts, including this Court.
The District Court’s judgment is correct and should be affirmed.
ARGUMENT
THE DISTRICT COURT PROPERLY ORDERED THAT
THE ASSESSMENTS OF TROWBRIDGE’S TAX
LIABILITIES FOR 1993 THROUGH 1997 BE
REDUCED TO JUDGMENT, THE RELATED TAX
LIENS FORECLOSED, AND THE PROPERTY SOLD,
WITH PROCEEDS TO BE APPLIED TO THE TAX
LIABILITIES
Standard of review
This Court’s review of a summary-judgment decision is de novo.
Bluebonnet Hotel Ventures, LLC. v. Wells Fargo Bank, N.A., 754 F.3d
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272, 275 (5th Cir. 2014); DuPree v. Saunders, 588 F.3d 282, 286 (5th
Cir. 2009). An order of sale is reviewed for abuse of discretion. See
United States v. Rodgers, 461 U.S. 677, 706 (1983).
A.
Introduction
The United States brought this action to reduce to judgment more
than $3 million in unpaid tax liabilities assessed against Trowbridge for
1993-1997, to foreclose upon the related tax liens against the real
property, and to sell the property to satisfy, in part, the unpaid tax
liabilities. The District Court reduced the assessments to judgment
based on the decisions of the United States Tax Court determining that
Trowbridge was liable for the deficiencies at issue, the Government’s
submission of transcripts of Trowbridge’s tax accounts showing that the
assessments were properly made and remained unpaid, and
Trowbridge’s failure to offer any countervailing evidence with respect to
the correctness of the assessments. The court also ordered the related
tax liens foreclosed upon the real property based on the Government’s
evidence of Trowbridge’s ownership of the property, which Trowbridge
did not dispute. The District Court’s amended judgment reducing the
assessments to judgment and ordering foreclosure of the related tax
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liens was correct, and its subsequent order of sale of the property was a
proper exercise of its discretion.
B.
The tax assessments were properly reduced to
judgment
In this case, Trowbridge was assessed for unpaid tax liabilities in
amounts that, as of April 7, 2014, totaled $3,326,015.01. (ROA.131149.) Tax assessments made by the IRS are presumed to be correct,
and the taxpayer bears the burden of overcoming the presumption. See
United States v. Fior d’Italia, Inc., 536 U.S. 238, 242-43 (2002); United
States v. Janis, 428 U.S. 433, 440-41 (1976); Affiliated Foods, Inc. v.
Commissioner, 154 F.3d 527, 530 (5th Cir. 1998). The assessments
against Trowbridge were made following adjudication of the tax
deficiencies and penalties at issue here by the Tax Court in earlier
decisions that were affirmed by this Court. See Trowbridge v.
Commissioner, T.C. Memo. 2003-164, 2003 WL 21278475 (2003)
(determining deficiencies for years 1991-1995), aff’d, 378 F.3d 432 (5th
Cir. 2004); Trowbridge et al. v. Commissioner, T.C. Memo. 2003-165,
2003 WL 21278414 (2003) (determining tax deficiencies for 1996 and
1997), aff’d, 101 F. App’x 3 (5th Cir. 2004). (See ROA.150-204.) These
decisions are res judicata as to the liabilities at issue here.
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Res judicata, or claim preclusion, “is the venerable legal canon
which proclaims that a valid and final judgment precludes a second suit
between the same parties on the same claim or any part thereof.”
Medina v. INS, 993 F.2d 499, 503 (5th Cir. 1993). The doctrine “insures
the finality of judgments and thereby conserves judicial resources.”
United States v. Shanbaum, 10 F.3d 305, 310 (5th Cir. 1994). Res
judicata applies where four conditions are present: (i) the parties are
identical or in privity; (ii) the judgment in the prior action was rendered
by a court of competent jurisdiction; (iii) the prior action was concluded
by a final judgment on the merits; and (iv) the same claim or cause of
action was involved in both actions. Duffie v. United States, 600 F.3d
362, 372 (5th Cir. 2010); Test Masters Educational Services, Inc. v.
Singh, 428 F.3d 559, 571 (5th Cir. 2005).
A final decision of the Tax Court is res judicata respecting a tax
liability determined by that court and is not subject to collateral attack
in a later proceeding. United States v. Davenport, 484 F.3d 321, 326-27
(5th Cir. 2007). Accordingly, res judicata prevented Trowbridge from
defending against this suit brought by the Government to enforce tax
liabilities that were previously determined against him by the Tax
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Court. See, e.g., Shanbaum, 10 F.3d at 313-14 (in Government’s suit to
reduce tax assessments to judgment and foreclose related tax liens
against property, prior Tax Court decision was res judicata to existence
and amount of the tax liabilities that were at issue in both cases);
United States v. Maxwell, 459 F.2d 22, 23 (5th Cir 1972) (same).
In this case, to demonstrate that proper assessments had been
made following the Tax Court decisions, the Government introduced
certified transcripts of account for Trowbridge’s 1993-1997 tax years.
(ROA.130-149.) An account transcript maintained by the IRS is
probative evidence in and of itself and, in the absence of contrary
evidence, is sufficient to establish that assessments were duly made and
to support a judgment reducing the assessments shown to judgment.
See United States v. Burnett, 452 Fed. App’x 569, 570 (5th Cir. 2011);
United States v. McCallum, 970 F.2d 66, 71 (5th Cir. 1992); Stuart v.
United States, 337 F.3d 31, 35 (1st Cir. 2003); United States v. Chila,
871 F.2d 1015, 1017-18 (11th Cir. 1989). The account transcripts here
showed that the taxes at issue were duly assessed and recorded and
that adequate notice and demand were promptly made. They further
showed that Trowbridge remained indebted to the United States for
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unpaid balances of tax, penalties, and interest in the amounts shown.
Because Trowbridge did not come forth with contrary admissible
evidence to rebut the presumption of correctness of the unpaid amounts
set forth on the account transcripts, the Government was entitled to
judgment as a matter of law for the unpaid assessed balances shown,
together with statutory interest and penalties accruing to the date of
payment.
C.
The foreclosure of the liens against Trowbridge’s
real property was proper
When a taxpayer fails to pay a tax liability after receiving notice
of assessment and demand for payment, a lien for the unpaid taxes
automatically arises in favor of the United States on all property and
rights to property belonging to the taxpayer and continues until the
liability is satisfied or the statute of limitations bars collection. I.R.C.
§§ 6321, 6322; United States v. Cache Valley Bank, 866 F.2d 1242, 1244
(10th Cir. 1989). A federal tax lien is perfected upon assessment, and
further action need not be taken. United States v. Vermont, 377 U.S.
351, 352 (1964). The lien attaches not only to property and rights to
property belonging to the taxpayer at the time of assessment, but also
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to all property and rights to property the taxpayer thereafter acquires.
See United States v. McDermott, 507 U.S. 447, 448 (1993).
Code Section 7403(a) authorizes the Government to bring an
action to enforce a lien “to subject any property, of whatever nature, of
the delinquent, or in which he has any right, title, or interest, to the
payment of such tax.” Section 7403(b) provides that “[a]ll persons
having liens upon or claiming any interest in the property involved in
such action shall be made parties thereto.” The suit is a plenary action
in which the court “shall . . . adjudicate all matters involved therein and
finally determine the merits of all claims to and liens upon the
property.” I.R.C. § 7403(c); see also United States v. Rodgers, 461 U.S.
677, 680-82 (1983); United States v. National Bank of Commerce, 472
U.S. 713, 720 (1985).
In this case, tax liens corresponding to the assessments made
against Trowbridge for his 1993 through 1997 tax years arose upon
assessment, notice and demand for payment, and failure to pay, and
attached to all of his property and rights to property, including the real
property at issue here. The Government provided the warranty deed
and deed of trust dated April 25, 2005, and recorded on May 5, 2005,
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that transferred the property to Trowbridge. (ROA.205-210.) The
Government recorded its notices of tax lien securing the tax liabilities
at issue in the real property records of Montgomery County, Texas, on
or about July 7, 2011, and October 2, 2012. (ROA.122-129.) On October
25, 2012, after the tax assessments were made and the notices of
federal tax lien were filed, a contract purporting to transfer the
property from Trowbridge to Freedom Ventures, UBO, was filed with
the Montgomery County Clerk’s Office. (ROA.211-214.) By the time
Trowbridge thus attempted to transfer the property to his selfcontrolled “unincorporated business organization,” however, the tax
liens had already attached to that property. Accordingly, any transfer
to the trust, regardless of validity, was done subject to the tax liens
already attached and recorded. See Cache Valley Bank, 866 F.2d at
1245 (a transfer “does not affect the lien because no matter into whose
hands the property goes, the property passes cum onere, or with the lien
attached”) (citing United States v. Bess, 357 U.S. 51, 57 (1958)).
Freedom Ventures made no appearance in the proceedings before the
District Court, and there is, in fact, no evidence in the record of its
existence apart from the contract, which Trowbridge signed both for
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himself and for Freedom Ventures. Accordingly, pursuant to I.R.C.
§ 7403, the tax lien was properly ordered foreclosed against the
property.
D.
The District Court did not abuse its discretion in
ordering the sale of the real property
As the Supreme Court has observed, I.R.C. § 7403 “permits, but
does not require, the court to order a judicial sale” of property in which
a delinquent taxpayer holds an interest. United States v. Brosnan, 363
U.S. 237, 244 (1960). This discretion, however, is quite limited.
Rodgers, 461 U.S. at 706. In Rodgers, the Supreme Court noted that
“the use of the power granted by § 7403 is not the act of an ordinary
creditor, but the exercise of a sovereign prerogative, incident to the
power to enforce the obligations of the delinquent taxpayer himself, and
ultimately grounded in the constitutional mandate to lay and collect
taxes.” Id. at 697. The Court noted that “the exercise of limited
equitable discretion in individual cases can take into account both the
Government’s interest in prompt and certain collection of delinquent
taxes and the possibility that innocent third parties will be unduly
harmed by that effort.” Id. at 709. But the Court recognized that there
are “virtually no circumstances . . . in which it would be permissible to
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refuse to authorize a sale simply to protect the interests of the
delinquent taxpayer himself or herself.” Ibid.
In this case, judgment had been entered against Trowbridge for
the taxes underlying the Governments liens. Trowbridge had continued
to refuse to make payment of the federal income taxes that the Tax
Court, affirmed by this Court, has held to be due. See Trowbridge v.
Commissioner, T.C. Memo. 2003-164, 2003 WL 21278475 (2003)
(determining deficiencies for years 1991-1995), aff’d, 378 F.3d 432 (5th
Cir. 2004); Trowbridge et al. v. Commissioner, T.C. Memo. 2003-165,
2003 WL 21278414 (2003) (determining tax deficiencies for 1996 and
1997), aff’d, 101 F. App’x 3 (5th Cir. 2004). There was no evidence that,
absent the sale of the property, the Government would be able to
recover the part of this liability that the sale proceeds represent.
Accordingly, the District Court issued an order of sale, with the
proceeds to be distributed as set forth in the order, which also set forth
proposed conditions for the sale. The tax liabilities had been long
outstanding, and there is no evidence of possible injury to innocent
third parties. Accordingly, the District Court properly ordered the
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property sold, with the proceeds to be applied towards Trowbridge’s
unpaid tax liabilities for the years at issue.
E.
Trowbridge’s arguments are frivolous
Trowbridge did not argue before the District Court, and does not
argue before this Court, that he paid the tax deficiencies that the Tax
Court (affirmed by this Court) determined that he owed. Nor has he
claimed that he lacked an ownership interest in the real property at
issue. Accordingly, these arguments should be deemed waived.
Hannah v. United States, 523 F.3d 597, 600 n.1 (5th Cir. 2008); Miller v.
Nationwide Life Ins. Co., 391 F.3d 698, 701 n.1 (5th Cir. 2004).
Rather, Trowbridge argues that the Internal Revenue Code does
not apply to him, and the District Court lacked jurisdiction over him,
because “Title 26 U.S.C. and Title 28 U.S.C. Chapter 176 are not
national but municipal legislation of the District of Columbia municipal
corporation.” (Br. 11-12.) He asserts that “Trowbridge neither resides
nor is domiciled in nor a legal resident of the District of Columbia” and
that the District Court erred “[w]hen it concluded as a matter of law
that (n)orth Harris County (Texas) is part of the United States” and
“[w]hen it ruled it has jurisdiction.” (Br. 12.) He contends that the
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terms “state” and “United States” as used in those statutes refer only to
the District of Columbia and to U.S. territories and not to “the United
States of America,” the constitutional union that includes Texas. (Br.
30-39.) Trowbridge argues that a United States District Court is a
“territorial court” under Article IV of the Constitution that exercises
jurisdiction only over the District of Columbia, as opposed to an Article
III “constitutional court” with authority in Texas. (Br. 42-43.) He also
argues that, as a resident of Texas, he is not subject to federal income
taxation. (Br. 46.)
Trowbridge’s contentions are nonsensical, based on “‘shopworn
arguments characteristic of tax-protestor rhetoric that has been
universally rejected by this and other courts.’” Stearman v.
Commissioner, 436 F.3d 533, 537 (5th Cir. 2006). In the United States
Constitution, as in Titles 26 and 28 of the United States Code and in
common speech, “the United States” is another, shorter way of referring
to the United States of America. See, e.g., Constitution of the United
States, Preamble (by “We the People of the United States”), Art. 1, § 1
(establishing “a Congress of the United States”), Art. II, § 1 (vesting the
executive power in “a President of the United States”); Art. III, § 1
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(vesting “[t]he judicial power of the United States” in the Supreme
Court and such inferior courts as Congress may establish); 14th
Amendment (“[a]ll persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the United States
and of the State wherein they reside”).
Courts have repeatedly recognized that the Code imposes a tax on
the taxable income of all individuals who, like Trowbridge, are citizens
or residents of the United States. See United States v. Price, 798 F.2d
111, 113 (5th Cir. 1986) (“[t]he citizens of Texas are subject to the
Federal Tax Code”); United States v. Beale, 574 F.3d 512, 519 n.3 (8th
Cir. 2009) (taxpayer’s “scheme of United States citizenship, within
which the federal government cannot tax the income of citizens of the
several states unless they are federal employees or freed slaves, has
been rejected time and again”); Caniff v. Commissioner, 1995 WL
216861, at *1 (7th Cir. 1995) (“[t]he tax power applies fully to each and
every of the fifty United States”); United States v. Gerads, 999 F.2d
1255, 1256 (8th Cir. 1993) (arguments that the district court lacked
“inland jurisdiction” and that taxpayers are not citizens of the United
States but rather “Free Citizens of the Republic of Minnesota,” are
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frivolous and warrant sanctions); United States v. Sloan, 939 F.2d 499,
501 (7th Cir. 1991) (taxpayer’s argument “that he is not subject to the
jurisdiction of the laws of the United States is simply wrong”); United
States v. Collins, 920 F.2d 619, 629 (10th Cir. 1990) (the Code imposes a
“direct nonapportioned tax upon United States citizens throughout the
nation, not just in federal enclaves”); Lonsdale v. United States, 919
F.2d 1440, 1448 (10th Cir. 1990) (rejecting as “lacking in legal merit
and patently frivolous” the argument that “the authority of the United
States is confined to the District of Columbia”); In re Becraft, 885 F.2d
547, 549 n.2 (9th Cir. 1989) (claimed “inapplicability of the federal
income tax laws to a resident of one of the states . . . has no semblance
of merit”). See also Treas. Reg. § 1.1-1(a)(1) (26 C.F.R.).
Trowbridge’s argument that the District Court lacked jurisdiction
over this case is equally frivolous. Jurisdiction in the District Court
was authorized under 28 U.S.C. §§ 1340 and 1345 and I.R.C. §§ 7402
and 7403, which provide such jurisdiction for a suit brought by the
United States to collect taxes. The courts, including this Court, have
rejected as frivolous arguments that the district courts lack jurisdiction
over tax actions against residents of the states. For example, in United
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States v. Henderson, 209 Fed. App’x 401, 402 (5th Cir. 2006), this Court
held that 26 U.S.C. §§ 7602(a) and 7604, which authorize the issuance
and enforcement of IRS summonses, “are federal laws that the district
court has jurisdiction to consider under 28 U.S.C. § 1331.” The Court
recognized that “[t]he United States District Court for the Southern
District of Texas is an Article III court established by Congress. See 28
U.S.C. § 124.” Ibid. It further recognized that the district court had
personal jurisdiction over the taxpayer “because of his domicile in the
jurisdiction” and that the taxpayer’s “claim that he is not a citizen of the
United States is frivolous.” Id. at 402 n.1. See also, e.g., United States
v. Masat, 948 F.2d 923, 934 (5th Cir. 1991) (rejecting as frivolous
defendant’s argument that district court lacked subject-matter
jurisdiction over criminal tax action and personal jurisdiction over him
because he was a “non-citizen,” a “non-resident,” and a “freeman”);
United States v. Sileven, 985 F.2d 962, 970 (8th Cir. 1993) (rejecting as
“plainly frivolous” argument that district court lacked jurisdiction
because taxpayer was not “a federal citizen”); United States v.
Saunders, 951 F.2d 1065, 1068 (9th Cir. 1991) (“Congress has expressly
directed federal district courts to hear tax enforcement matters. See
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26 U.S.C. §§ 7402(b), 7604(a); 28 U.S.C. § 1340”); United States v. Ward,
833 F.2d 1538, 1539 (11th Cir. 1987) (rejecting taxpayer’s argument
“that the United States has jurisdiction over only Washington, D.C., the
federal enclaves within the states, and the territories and possessions of
the United States”).
The District Court correctly rejected Trowbridge’s arguments,
which are based on time-worn tax-defiance rhetoric that has been
repeatedly rejected by the courts. As this Court has remarked when
confronted with similar arguments, there was “no need to refute these
arguments with somber reasoning and copious citation of precedent; to
do so might suggest that these arguments have some colorable merit.”
Crain v. Commissioner, 737 F.2d 1417, 1417 (5th Cir. 1984).5
Contemporaneously with this brief, the Government is filing a
separate motion for appellate sanctions against Trowbridge under
28 U.S.C. § 1912 and Fed. R. App. P. 38.
5
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CONCLUSION
For the foregoing reasons, the judgment of the District Court is
correct and should be affirmed.
Respectfully submitted,
TAMARA W. ASHFORD
Acting Assistant Attorney General
/s/ Carol Barthel
ROBERT W. METZLER
CAROL BARTHEL
Attorneys
Tax Division
Department of Justice
Post Office Box 502
Washington, D.C. 20044
(202) 514-3938
(202) 514-2921
Of Counsel:
KENNETH MAGIDSON
United States Attorney
SEPTEMBER 2014
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31
CERTIFICATE OF SERVICE
It is hereby certified that, on this 18th day of September, 2014,
that:
• this brief was filed with the Clerk of the United States Court of
Appeals for the Fifth Circuit by using the CM/ECF system;
• all required privacy redactions have been made in accordance
with Local Rule 25.2.13;
• the document has been scanned for viruses with the most recent
version of a commercial virus scanning program and is free of
viruses;
• the electronic and paper submissions are identical as required by
Local Rule 25.2.1.
I further certify that, on September 18, 2014, I have mailed the
foregoing brief by First Class Mail, postage prepaid, to the following
non-CM/ECF participant, addressed as follows:
Dr. John Parks Trowbridge, Jr.
9816 Memorial Blvd. #205
Humble, Texas 77338
/s/ Carol Barthel
CAROL BARTHEL
Attorney
_
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CERTIFICATE OF COMPLIANCE WITH RULE 32(A)
Certificate of Compliance with Type-Volume Limitation, Typeface
Requirements, and Type Style Requirements
Case No.
14-20333
_
1. This brief complies with the type-volume limitation of Fed. R.
App. P. 32(a)(7)(B) because:
[X] this brief contains 5,653 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or
[]
this brief uses a monospaced typeface and contains [state the
number of] lines of text, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R.
App. P. 32(a)(5) and the type style requirements of Fed. R. App. P.
32(a)(6) because:
[X] this brief has been prepared in a proportionally spaced
typeface using Microsoft Word 2010 in 14-point Century
Schoolbook, or
[]
this brief has been prepared in a monospaced typeface using
[state name and version of word processing program] with
[state number of characters per inch and name of type style].
/s/ Carol Barthel
_
Attorney for the United States of America _
Dated: September 18, 2014
_
844260.1
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Date Filed: 09/18/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN PARKS TROWBRIDGE, JR.,
Defendant-Appellant
)
)
)
)
)
)
)
)
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No. 14-20333
APPELLEE’S MOTION FOR SANCTIONS
The United States of America, appellee herein, through its
counsel, respectfully requests that John Parks Trowbridge, Jr.
(“Trowbridge”), appellant herein, be sanctioned $8,000 pursuant to 28
U.S.C. § 1912 and Rule 38 of the Federal Rules of Appellate Procedure
for maintaining a frivolous appeal. The appellee suggests that this
motion be decided by the same panel that hears the merits of the
appeal.
STATEMENT
The United States brought this suit against Trowbridge in the
District Court for the Southern District of Texas, seeking to collect
delinquent federal taxes owed by Trowbridge for his 1993 through 1997
tax years. (ROA.8-20.) To that end, the Government sought: (i) to
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-2reduce to judgment federal income-tax assessments for the years at
issue, the unpaid balances of which (as of September 1, 2013) totaled
$3,286,335.47; (ii) to foreclose upon related tax liens of the United
States against a parcel of real property (the “real property”) in which
Trowbridge claimed an ownership interest; and (iii) to obtain a judicial
sale of the real property, with the proceeds of the sale to be distributed
according to the relative priorities of the parties’ claims. As is required
in a suit seeking foreclosure of a federal tax lien, the Government also
named Freedom Ventures, UBO, and the Montgomery County Tax
Office as defendants, because these entities might have claimed an
interest in or lien on the real property. See Internal Revenue Code of
1986 (26 U.S.C.) (“I.R.C.”) § 7403(b).
In his response to the Government’s complaint, Trowbridge (a
Texas resident) asserted that the Government had not shown that he
was “born in a State or the United States” or that he “is subject to the
jurisdiction of the United States in this matter.” (ROA.58.) He further
asserted that the Government had not produced proof of “the debt
alleged” or evidence that he owed tax in the amounts stated or that the
real property was subject to foreclosure. (ROA.58.) The District Court
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-3construed this response, captioned “Conditional Acceptance and
Demand for Proof or Withdrawal of Claim,” as the answer of both
Trowbridge and Freedom Ventures, UBO. (ROA.91, 100.)
The Government moved for summary judgment. (ROA.114-120.)
In support, the Government noted that the tax liabilities had previously
been adjudicated in the United States Tax Court.1 The Government
provided copies of the notices of federal tax lien respecting these
liabilities (ROA.122-129); IRS transcripts for Trowbridge for the years
at issue showing that taxes had been assessed and notices sent and that
tax liabilities remained unpaid (ROA.130-149); the warranty deed and
deed of trust transferring the real property to Trowbridge (ROA.205210); and a contract purportedly transferring the real property from
Trowbridge to Freedom Ventures, UBO, signed by Trowbridge for
Trowbridge et al. v. Commissioner, T.C. Memo. 2003-164, 2003
WL 21278475 (determining deficiencies for years 1991-1995 and
imposing $25,000 sanction for maintaining a proceeding primarily for
delay), on appeal, No. 04-60029 (5th Cir.), appeal dismissed, June 3,
2004; Trowbridge, et al. v. Comissioner, T.C. Memo. 2003-165, 2003 WL
21278414 (2003) (determining tax deficiencies for 1996 and 1997 and
imposing $25,000 sanction for maintaining a proceeding primarily for
delay), aff’d 378 F.3d 432 (5th Cir. 2004) (affirming liability
determination and sanction and imposing additional $6,000 sanction for
pursuing a frivolous appeal).
1
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-4himself and as “Managing Trustee” of Freedom Ventures (ROA.211214).
In his opposition to the Government’s motion (ROA.291-338),
Trowbridge did not contend that his tax liabilities had been paid or
compromised or that he lacked an ownership interest in the real
property. Rather, he argued that counsel for “the United States” was
not authorized to represent “the United States of America.” (ROA.328.)
He asserted that the District Court lacked jurisdiction over him, and
the Internal Revenue Code did not apply to him, because he did not
reside in the District of Columbia and thus was not “a citizen or
resident of the United States,” as opposed to “the United States of
America.” (ROA.327-332.) He made numerous other filings reiterating
these arguments. (ROA.107-113, 348-359, 360-367, 382, 386, 391-401,
402-410.)
Trowbridge did not appear at the May 21, 2014 hearing on the
Government’s motion for summary judgment. (ROA.411, 534.) At the
hearing, the District Court stated that it “conclude[d] as a matter of law
that North Harris County [Texas] is part of the United States” and that
“the United States” and “the United States of America” were the same
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-5entity. (ROA.535.) Noting that the Tax Court’s decisions respecting
Trowbridge’s tax liabilities at issue were entered 11 years previously,
and that Trowbridge had “done nothing constructive by way of
negotiation or payment” respecting those liabilities, but had been
“obstreperous” and “dishonest,” the court instructed the Commissioner’s
counsel to prepare an order of sale of the real property. (ROA.537-538.)
On May 23, 2014, the District Court entered an amended final
judgment that reduced Trowbridge’s unpaid tax liabilities for 1993
through 19997 to judgment and ordered that the Government could
foreclose the related tax liens upon the real property. (ROA.413.) The
same day, the court issued an order of sale and vacature that set forth
the terms and conditions of the sale. (ROA.414-417.)
Trowbridge filed and served his opening brief in this Court on
August 18, 2014.2
Trowbridge moved in the District Court for a stay of the order of
sale (ROA.419-420), which the court denied (ROA.435). On May 29,
2014, Trowbridge moved in this Court for a stay of the order of sale
(ROA.437-487), which this Court denied on June 4, 2014 (ROA.505).
2
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-6DISCUSSION
Courts of appeals have discretion under 28 U.S.C. § 1912 and Fed.
R. App. P. 38 to award sanctions to an appellee, including attorneys’
fees and single or double costs, where the appellant raises frivolous and
baseless arguments such as those made by Trowbridge here. An appeal
is frivolous if it lacks a factual basis, if it advances arguments that are
not warranted by existing law or a good-faith argument for the
alteration of existing law, or it is taken for an improper purpose. See
Casper v. Commissioner, 805 F.2d 902, 907 (10th Cir. 1986). “Sanctions
are appropriate when the result of an appeal is obvious and the
arguments of error are wholly without merit.” Grimes v. Commissioner,
806 F.2d 1451, 1454 (9th Cir. 1986).
The Government’s position with respect to Trowbridge’s
arguments on appeal is fully addressed in its answering brief, which is
being submitted simultaneously with this motion. As noted in that
brief, Trowbridge’s arguments on appeal, like his arguments in the
District Court, are frivolous, without basis in fact or law. Sanctions
thus are warranted in the instant appeal.
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-7Trowbridge argues that the Internal Revenue Code does not apply
to him, and the District Court lacked jurisdiction over him, because
“Title 26 U.S.C. and Title 28 U.S.C. Chapter 176 are not national but
municipal legislation of the District of Columbia municipal corporation.”
(Br. 11-12.) He asserts that “Trowbridge neither resides nor is
domiciled in nor a legal resident of the District of Columbia” and that
the District Court erred “[w]hen it concluded as a matter of law that
(n)orth Harris County (Texas) is part of the United States” and “[w]hen
it ruled it has jurisdiction.” (Br. 12.) He contends that the terms
“state” and “United States” as used in those statutes refer only to the
District of Columbia and to U.S. territories and not to “the United
States of America,” the constitutional union that includes Texas. (Br.
30-39.) Trowbridge argues that a United States District Court is a
“territorial court” under Article IV of the Constitution that exercises
jurisdiction only over the District of Columbia, as opposed to an Article
III “constitutional court” with authority in Texas. (Br. 42-43.) He also
argues that, as a resident of Texas, he is not subject to federal income
taxation. (Br. 46.)
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-8Trowbridge’s contentions are nonsensical, based on “‘shopworn
arguments characteristic of tax-protestor rhetoric that has been
universally rejected by this and other courts.’” Stearman v.
Commissioner, 436 F.3d 533, 537 (5th Cir. 2006). In the United States
Constitution, as in Titles 26 and 28 of the United States Code and in
common speech, “the United States” is another, shorter way of referring
to the United States of America. See, e.g., Constitution of the United
States, Preamble (by “We the People of the United States”), Art. 1, § 1
(establishing “a Congress of the United States”), Art. II, § 1 (vesting the
executive power in “a President of the United States”); Art. III, § 1
(vesting “[t]he judicial power of the United States” in the Supreme
Court and such inferior courts as Congress may establish); 14th
Amendment (“[a]ll persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the United States
and of the State wherein they reside”).
Courts have repeatedly recognized that the Code imposes a tax on
the taxable income of all individuals who, like Trowbridge, are citizens
or residents of the United States. See United States v. Price, 798 F.2d
111, 113 (5th Cir. 1986) (“[t]he citizens of Texas are subject to the
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-9Federal Tax Code”); United States v. Beale, 574 F.3d 512, 519 n.3 (8th
Cir. 2009) (taxpayer’s “scheme of United States citizenship, within
which the federal government cannot tax the income of citizens of the
several states unless they are federal employees or freed slaves, has
been rejected time and again”); Caniff v. Commissioner, 1995 WL
216861, at *1 (7th Cir. 1995) (“[t]he tax power applies fully to each and
every one of the fifty United States”); United States v. Gerads, 999 F.2d
1255, 1256 (8th Cir. 1993) (arguments that the district court lacked
“inland jurisdiction” and that taxpayers are not citizens of the United
States but rather “Free Citizens of the Republic of Minnesota” are
frivolous and warrant sanctions); United States v. Sloan, 939 F.2d 499,
501 (7th Cir. 1991) (taxpayer’s argument “that he is not subject to the
jurisdiction of the laws of the United States is simply wrong”); United
States v. Collins, 920 F.2d 619, 629 (10th Cir. 1990) (the Code imposes a
“direct nonapportioned tax upon United States citizens throughout the
nation, not just in federal enclaves”); Lonsdale v. United States, 919
F.2d 1440, 1448 (10th Cir. 1990) (rejecting as “lacking in legal merit
and patently frivolous” the argument that “the authority of the United
States is confined to the District of Columbia”); In re Becraft, 885 F.2d
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-10547, 549 n.2 (9th Cir. 1989) (claimed “inapplicability of the federal
income tax laws to a resident of one of the states . . . has no semblance
of merit”). See also Treas. Reg. § 1.1-1(a)(1) (26 C.F.R.).
Trowbridge’s argument that the District Court lacked jurisdiction
over this case is equally frivolous. Jurisdiction in the District Court
was authorized under 28 U.S.C. §§ 1340 and 1345 and I.R.C. §§ 7402
and 7403, which provide such jurisdiction for a suit brought by the
United States to collect taxes. The courts, including this Court, have
rejected as frivolous arguments that the district courts lack jurisdiction
over tax actions against residents of the states. For example, in United
States v. Henderson, 209 F. App’x 401, 402 (5th Cir. 2006), this Court
held that 26 U.S.C. §§ 7602(a) and 7604, which authorize the issuance
and enforcement of IRS summonses, “are federal laws that the district
court has jurisdiction to consider under 28 U.S.C. § 1331.” The Court
recognized that “[t]he United States District Court for the Southern
District of Texas is an Article III court established by Congress. See 28
U.S.C. § 124.” Ibid. It further recognized that the district court had
personal jurisdiction over the taxpayer “because of his domicile in the
jurisdiction” and that the taxpayer’s “claim that he is not a citizen of the
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-11United States is frivolous.” See also, e.g., United States v. Masat, 948
F.2d 923, 934 (5th Cir. 1991) (rejecting as frivolous defendant’s
argument that district court lacked subject-matter jurisdiction over
criminal tax action and personal jurisdiction over him because he was a
“non-citizen,” a “non-resident,” and a “freeman”); United States v.
Sileven, 985 F.2d 962, 969 (8th Cir. 1993) (rejecting as “plainly
frivolous” argument that district court lacked jurisdiction because
taxpayer was not “a federal citizen”); United States v. Saunders, 951
F.2d 1065, 1068 (9th Cir. 1991) (“Congress has expressly directed
federal district courts to hear tax enforcement matters. See 26 U.S.C.
§§ 7402(a), 7604(a); 28 U.S.C. § 1340”); United States v. Ward, 833 F.2d
1538, 1539 (11th Cir. 1987) (rejecting taxpayer’s argument “that the
United States has jurisdiction over only Washington, D.C., the federal
enclaves within the states, and the territories and possessions of the
United States”).
Trowbridge’s arguments are based on time-worn tax-defiance
rhetoric that has been repeatedly rejected by the courts. As this Court
has remarked when confronted with similar arguments, there was “no
need to refute these arguments with somber reasoning and copious
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-12citation of precedent; to do so might suggest that these arguments have
some colorable merit.” Crain v. United States, 737 F.2d 1417, 1418 (5th
Cir. 1984).
Trowbridge, a medical doctor, is an educated man who should
have been aware that the arguments he was making are frivolous.
(ROA.518.) His “pro se status is not a license to litter the dockets of the
federal courts with ridiculous allegations.” Parker v. Commissioner, 117
F.3d 785, 787 (5th Cir. 1997).
We note, moreover, that Trowbridge is no stranger to frivolous
arguments. In Trowbridge et al. v. Commissioner, T.C. Memo. 2003164, 2003 WL 21278475, in which the Tax Court sustained Trowbridge’s
tax liabilities for 1991-1995, Trowbridge made “a convoluted argument
that subjecting [him] to the same rate of tax as Federal employees
constitutes impermissible ‘disparate treatment’” and asserted that his
“status as a nonjuristic person, a Texas state Citizen,” deprived the Tax
Court of jurisdiction over him. 2003 WL 21278475, at *4, *5. Observing
that Trowbridge had “emphasized frivolous arguments” and “instituted
and maintained these proceedings for delay,” that court imposed a
$25,000 sanction against him under I.R.C. § 6673(a)(1). Id. at *10.
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-13Trowbridge appealed the Tax Court’s decision to this Court,
withdrawing his appeal after the Government moved for sanctions
against him pursuant to 28 U.S.C. § 1912 and Fed. R. App. P. 38.
Trowbridge et al. v. Commissioner, No. 04-60029 (5th Cir.), appeal
dismissed, June 3, 2004.
Again in Trowbridge, et al. v. Commissioner, T.C. Memo. 2003165, 2003 WL 21278414 (2003), Trowbridge challenged the Tax Court’s
jurisdiction over him, “a nonjuristic person, a Texas state Citizen.”
2003 WL 21278414, at *5. The Tax Court upheld his 1996-1997 tax
liabilities and imposed sanctions because Trowbridge had advanced
“frivolous arguments” and “instituted and maintained these proceedings
for delay.” Id. at *10. On appeal, Trowbridge argued that the Tax
Court lacked jurisdiction “because ‘Article I administrative courts are
prohibited from hearing any issue At Law which has been enumerated
in the Constitution only for the province of Article III courts’; that he is
not a ‘resident’ of Texas or a ‘taxpayer’ subject to federal tax laws; that
he has ‘denied and rebutted any presumption of the existence of any
contracts or commercial agreements which create an attachment of an
equity relationship that would establish an admiralty or equity
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-14jurisdiction’; that he has ‘forfeited, waived, rejected, declined, and
refused to voluntarily accept any and all benefits from the United
States’; and that he ‘objects to the use of Federal Reserve Notes to
discharge debts.’” Trowbridge v. Commissioner, 378 F.3d 432, 433 (5th
Cir. 2004). This Court affirmed the Tax Court’s liability determination
and sanction and imposed an additional $6,000 sanction against
Trowbridge “for pursuing a frivolous appeal.” Ibid.
In tax cases involving frivolous appeals, several courts, including
this Court, have imposed a flat damages fee as a sanction under Fed. R.
App. P. 38 in lieu of requesting the Government to undertake a specific
computation of its expenses on a case-by-case basis. See Trowbridge,
378 F.3d at 433; Parker, 117 F.3d at 787; McDougal v. Commissioner,
818 F.2d 453, 455 (5th Cir. 1987); Stelly v. Commissioner, 804 F.2d 868,
870-71 (5th Cir. 1986); Cohn v. Commissioner, 101 F.3d 486, 486-87 (7th
Cir. 1996); Wilcox v. Commissioner, 848 F.2d 1007, 1009 (9th Cir. 1988);
Schoffner v. Commissioner, 812 F.2d 292, 294 (6th Cir. 1987); Casper,
805 F.2d at 906-07. “[I]mposing a lump sum sanction saves the
government the additional cost of calculating its expenses, and also
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-15saves the court the time and expense of reviewing the submission of
costs.” Parker, 117 F.3d at 787.
According to the records of the Tax Division of the Department of
Justice, the average expense in attorney salaries and other costs
incurred by this office in the defense of frivolous taxpayer appeals in
which sanctions were awarded during the period 2009-2011 was more
than $12,500. 3 The Government, therefore, respectfully requests that
the Court award it $8,000 as a lump-sum sanction pursuant to Fed. R.
App. P. 38. See, e.g., Montero v. United States, 409 F. App’x 738 (5th
Cir. 2011) (granting the Government’s motion for $8,000 in sanctions);
Houseal v. Commissioner, 435 F. App’x 567 (8th Cir. 2011) (same);
Braquest v. Commissioner, 336 F. App’x 432 (5th Cir. 2009) (same);
Wallis v. Commissioner, 203 F. App’x 591, 594 (5th Cir. 2006) (same);
Bates v. Commissioner, 401 F. App’x 247 (9th Cir. 2010) (same); Boggs
v. Commissioner, 569 F.3d 235, 238 (6th Cir. 2009) (same); Cuartero v.
United States Attorney General, 295 F. App’x 378 (2d Cir. 2008) (same);
In making this computation, we have eliminated from
consideration instances in which significantly greater amounts of
attorney time were devoted to the case than are typically reported for
such cases.
3
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-16Cargill v. Commissioner, 272 F. App’x 756 (11th Cir. 2008) (same);
Hilvety v. Commissioner, 216 F. App’x 582 (7th Cir. 2007) (same). 4 See
also Taylor v. Commissioner, 350 F. App’x 913, 916 (5th Cir. 2009)
(imposing sanctions of $16,000, double the amount sought by the
Government, for prosecuting a frivolous appeal where pro se taxpayers
were on notice that their arguments were frivolous). Although such an
award might not cover all of the costs attending this litigation, it would
nevertheless at least partially compensate the Government for the
We are aware that the Seventh Circuit in Szopa v. United
States, 460 F.3d 884, 887 (7th Cir. 2006), established a “presumptive”
sanction of $4,000 in frivolous tax appeals presented to that court, and
awarded the Government the $8,000 that it requested in that case only
because the taxpayer was a repeat offender. See also Wheeler v.
Commissioner, 528 F.3d 773, 782-85 (10th Cir. 2008). We note,
however, that Trowbridge is also a repeat offender and thus would
warrant sanctions of $8,000 even in the Seventh Circuit. But we
continue to believe that our request for $8,000 in sanctions is warranted
in this case — whether or not Trowbridge was a repeat offender — and
in frivolous tax-defier cases in general. As we pointed out in one of our
appellate court filings in Szopa, “[w]e have . . . long seen it as our
responsibility, even in the most frivolous cases, to spend the time
necessary to parse . . . the often convoluted and unintelligible
arguments of tax protestors so that their cases might be presented to
the courts in as coherent a fashion as possible.” See Szopa, 460 F.3d at
886. We think that that time is well spent if it aids a court’s decisionmaking process, as we believe it does here.
4
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-17direct costs of defending the appeal and might deter future frivolous
appeals.
CONCLUSION
This Court should exercise its discretion and impose sanctions
against Trowbridge, so that the Government can be partially
compensated for the costs of defending this frivolous appeal. Sanctions
of $8,000 would be appropriate. Moreover, given Trowbridge’s prior
sanctionable conduct, the Court may wish to consider imposing
additional sanctions as it might deem appropriate.
Respectfully submitted,
TAMARA W. ASHFORD
Acting Assistant Attorney General
/s/ Carol Barthel
ROBERT W. METZLER
CAROL BARTHEL
Attorneys
Tax Division
Department of Justice
Post Office Box 502
Washington, D.C. 20044
(202) 514-3938
(202) 514-2921
This 18th day of September, 2014.
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-18IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN PARKS TROWBRIDGE, JR.,
)
)
)
)
)
)
)
)
No. 14-20333
DECLARATION
Carol Barthel of the Appellate Section, Tax Division, Department
of Justice, states:
The facts set forth in the accompanying motion for sanctions are
true to the best of my knowledge and belief.
I declare under penalty of perjury pursuant to 28 U.S.C. § 1746
that the foregoing is true and correct. Executed this 18th day of
September, 2014, at Washington, D.C.
/s/ Carol Barthel
CAROL BARTHEL
Attorney
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-19CERTIFICATE OF SERVICE
It is hereby certified that, on this 18th day of September, 2014,
that:
• this motion was filed with the Clerk of the United States Court of
Appeals for the Fifth Circuit by using the CM/ECF system;
• all required privacy redactions have been made in accordance
with Local Rule 25.2.13;
• the document has been scanned for viruses with the most recent
version of a commercial virus scanning program and is free of
viruses;
• the electronic and paper submissions are identical as required by
Local Rule 25.2.1.
I further certify that, on September 18, 2014, I have mailed the
foregoing motion by First Class Mail, postage prepaid, to the
following non-CM/ECF participant, addressed as follows:
Dr. John Parks Trowbridge, Jr.
9816 Memorial Blvd. #205
Humble, Texas 77338
/s/ Carol Barthel
CAROL BARTHEL
Attorney
_
859132.1
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 14-20333
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN PARKS TROWBRIDGE, JR.,
Defendant-Appellant.
_______________________
ON APPEAL FROM THE JUDGMENT OF
THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS,
HOUSTON DIVISION
_______________________
REPLY BRIEF FOR THE APPELLANT
_______________________
Tamara Wenda Ashford, Robert Joel Branman, Robert W. Metzler, Carol A.
Barthel, Kenneth Magidson, Joshua David Smeltzer, and Lynn Nettleton Hughes
are co-workers and officers of the same Federal corporation, the District of
Columbia municipal corporation,1 28 U.S.C. § 3002(1), (2), (8), (15) (App. 44–46;
1
“An Act to provide a Government for the District of Columbia,” ch. 62, sec. 1, 16 Stat.
419, February 21, 1871; later legislated in “An Act Providing a Permanent Form of Government
for the District of Columbia,” ch. 180, 20 Stat. 102, June 11, 1878, to remain and continue as a
municipal corporation (brought forward from the Act of 1871, as provided in the Act of March 2,
1877, amended and approved March 9, 1878, Revised Statutes of the United States Relating to
see also ROA.329–330), feigning ignorance of law—i.e., refusing to recognize
certain material portions of the law fatal to their cause, a denial of due process of
law—in order to defraud appellant John Parks Trowbridge, Jr. (“Trowbridge”) of
his property under color of law, office, and authority via an unauthorized sham
legal proceeding protected from general scrutiny and detection by means of a
culture of silence under a policy of “Never respond, confirm, or deny.”
The employer of all aforesaid officers, the District of Columbia municipal
corporation, is situated in the legislative branch of the de jure constitutional
government established March 4, 1789 (n. 1, supra).
Legislative-branch officers Tamara Wenda Ashford, Robert Joel Branman,
Robert W. Metzler, Carol A. Barthel, Kenneth Magidson, and Joshua David
Smeltzer are posing as officers of the executive branch of said de jure
constitutional government and Lynn Nettleton Hughes, of the judicial branch
thereof, under color of office and authority, and opposing appellant John Parks
Trowbridge’s appeal brief (the “Appeal”) and prosecuting and hearing the instant
lawsuit in fraudem legis under color of law, in violation of the jurisdictional
provisions of the Constitution and breach of the constitutional doctrine of
separation of powers.
the District of Columbia . . . 1873–’74, sec. 2, p. 2); as amended by the Act of June 28, 1935, 49
Stat. 430, ch. 332, sec. 1 (Title 1, Section 102, District of Columbia Code (1940)). (ROA.312;
App. 16–17).
2
RE IGNORANCE OF LAW
It is indisputable that appellee United States of America (the “Appellee”)
holds appellant John Parks Trowbridge, Jr. (“Trowbridge”) accountable for
knowledge of the law; to wit:
Ignorantia excusator, non juris sed facti. Ignorance of fact may
excuse, but not ignorance of law.” Bouvier’s Law Dictionary, 3rd rev.,
8th ed., p. 2136.
Ignorance of law consists of the want of knowledge of those laws
which it is our duty to understand, and which every man is presumed
to know. Id. at 1488.
Counsel for Appellee and all other aforesaid legislative-branch officers are
no less accountable.
The principal provisions of law material to the allegations in the Complaint
and Issue I in Trowbridge’s appeal brief (the “Appeal”) are the Title 26 U.S.C.
terms “United States,” “State,” and “includes” (ROA.324–326, App. 36), and the
Title 28 U.S.C. Chapter 176 terms material to the nature and jurisdiction of the trial
court and Issue II in the Appeal, “United States,” “counsel for the United States,”
“court,” “debt,” and “judgment.” (App. 44–46).
The ROA and Appeal reflect fidelity to the controlling definition and
meaning of every aforesaid material statutory term on the part of Trowbridge and
ignorance thereof on the part of counsel for Appellee and all other aforesaid
legislative-branch officers and there is no evidence to the contrary.
3
THE TRIAL COURT
kangaroo court. 1. A self-appointed tribunal or mock court in which
the principles of law and justice are disregarded, perverted, or
parodied. . . . 2. A court or tribunal characterized by unauthorized or
irregular procedures, esp. so as to render a fair proceeding impossible.
3. A sham legal proceeding. Black’s Law Dictionary, 7th ed., p. 259.
Whereas, Trowbridge resides in Harris County, Texas (ROA.153, 181); and
Whereas, there is no legal evidence that Texas is a part of the geographical
United States (ROA.324–326; App. 36–39); and
Whereas, there is no evidence that Trowbridge is of a species of individual2
who is a nonresident alien or citizen or resident of the political or geographical
United States (id.; App. 39–49; ROA.333–336); and
Whereas, there is no provision in the Constitution that authorizes Congress
to exercise power of personal legislation without the geographical areas described
in Articles 1 § 8(17) and 4 § 3(2) thereof; and
Whereas, there is no provision in the Constitution that authorizes exercise of
personal jurisdiction without the geographical areas described in Articles 1 § 8(17)
and 4 § 3(2) thereof; and
Whereas, only territorial courts “created by virtue of the sovereign
congressional faculty, granted under article 4, 3, of that instrument [the
2
(2) the term “individual” means a citizen of the United States or an alien lawfully
admitted for permanent residence; 5 U.S.C. § 552a(a) Records maintained on
individuals.
4
Constitution]” (ROA.395, 407; App. 40) are authorized to exercise personal
jurisdiction; and
Whereas, the trial court is a court authorized by Congress to exercise
personal jurisdiction (App. 42–49).
Wherefore, the trial court is a District of Columbia municipal corporation
legislative Article IV territorial tribunal of plenary jurisdiction masquerading as a
constitutional Article III judicial court of limited jurisdiction and conducting a
sham legal proceeding in concert with co-worker corporate attorneys posing as
national-executive-branch officers in violation of the jurisdictional provisions of
the Constitution and breach of the constitutional doctrine of separation of powers,
for the purpose defrauding Trowbridge of Trowbridge’s property under color of
law, office, and authority.
The Response constitutes additional fraud on the part of District of
Columbia municipal corporation attorneys.
THE QUESTION OF FRIVOLOUSNESS
Plaintiff-Appellee’s Response provides, in pertinent part (Emphasis added in
all citations.):
Pursuant to Fifth Circuit Rule 28.2.3, counsel for the appellee believe
that oral argument is not necessary in this case because the appellant
is proceeding pro se and his arguments are frivolous. (Resp. i).
. . . Trowbridge raised only frivolous arguments in opposition to the
Government’s motion. (Resp. 3).
5
The Government moved for summary judgment. Opposing,
Trowbridge raised only frivolous arguments, asserting that the District
Court lacked jurisdiction over him, and the Internal Revenue Code did
not apply to him, because he did not reside in “the District of
Columbia or one of the territories” . . . (Resp. 4).
On appeal, Trowbridge advances only frivolous arguments . . . (Resp.
14).
E. Trowbridge’s arguments are frivolous (Resp. 24).
Trowbridge’s argument that the District Court lacked jurisdiction over
this case is equally frivolous. (Resp. 27).
Bouvier’s Law Dictionary, 3rd rev., 8th ed. (“Bouvier’s 8th”) provides, in
pertinent part of page 1317:
FRIVOLOUS. . . .
An answer cannot be stricken out on the ground that it is frivolous,
where an extended argument or illustration is required to demonstrate
its frailty . . .
Whereas, the principal argument (Resp. 14–29) in the Response is that
Trowbridge’s Appeal is frivolous, it is reasonable to characterize said argument as
extended—and Trowbridge’s Appeal cannot be stricken out on the ground that it is
frivolous.
Black’s Law Dictionary, 1st ed. provides, in pertinent part of page 522:
FRIVOLOUS. An answer or plea is called “frivolous” when it is
clearly insufficient on its face, and does not controvert the material
points of the opposite pleading, and is presumably interposed for
purposes of delay or to embarrass the plaintiff . . . Peacock v.
Williams (C. C.) 110 Fed. 916.
6
Ignorance of law excuses not. For those in a position of public trust and
charged with making, pronouncing, or applying the law, such as the co-authors of
the Response, ignorance of law, feigned or actual, constitutes, minimally, denial of
due process of law, gross negligence, i.e., fraud, and misfeasance in public office.
It is unknown what definition or meaning of “United States” (or any other
aforesaid material term) counsel for Appellee use in the Response.
Whereas, inspection of the ROA, Appeal, and Response evinces that (1)
Trowbridge relies on and cites the controlling Title 26 U.S.C. and Title 28 U.S.C.
Chapter 176 definition of “United States” and all other aforesaid material terms at
all times, and (2) authors of the Response (a) propound and argue an unknown,
undisclosed meaning of “United States” and every other aforesaid material term, to
the exclusion of the controlling definition of each, and (b) cite opinions from cases
about the meaning of “United States” and other statutory terms that likewise are
devoid of citation of or reference to the respective controlling definition or
meaning: Any argument or case citation which purports to opine about the
meaning of a particular statutory term to the exclusion of the controlling definition
thereof is clearly insufficient on its face for ignorance of law.
Neither argument nor opinion supersedes or supplants the definition or
meaning of a statutory term as provided by law—which all men are presumed to
know and understand. Whereas, the material points of Trowbridge’s pleading
7
consist in the controlling definition and meaning of the aforesaid terms: The
principal argument of the Response that Trowbridge’s Appeal is frivolous, is itself
a frivolous argument for ignorance of the law, albeit feigned, and should be
stricken out therefor, regardless of the fact that it is fraudulent.
ANOMALIES EXPLAINED
1.
Trowbridge on February 4, 2014, offers to discharge in full the debt
alleged in the Complaint upon Kenneth Magidson’s production of evidence that
Trowbridge is a citizen or resident of the United States.3 (ROA.59). To said offer
Kenneth Magidson stands mute and rather opts for four months of pre-trial filings
and motions, ostensibly a waste of the trial court’s time. (ROA.101–102). At no
time does Trowbridge withdraw said offer.
2.
Response authors feel the need to cite 41 cases in support of the
principal argument in the Response that the Appeal is frivolous.
The reason for both anomalies is the same: There is no evidence that
Trowbridge is a citizen or resident of the United States and the ROA is devoid of
the same and the attorneys prosecuting the lawsuit and opposing the Appeal are
dependent on complicity in the fraud and the culture of silence in order to prevail.
Fraud is facilitated by “group agreement” among District of Columbia
municipal corporation officers and supporters as to the meaning of “United States”
3
Said offer is a constructive avoidance for fraud and is the reason the trial court construes
it to be an answer to the Complaint, Fed. R. Civ. P. 8(c)(1). (ROA.91).
8
and the other aforesaid material statutory terms, irrespective of any controlling
definition, and is hidden in plain sight via the culture of silence; to wit: It is
extremely difficult for a target to avoid being defrauded if no one prosecuting or
hearing the lawsuit or opposing the Appeal will acknowledge or apply the law.
As cited supra, “Ignorantia excusator, non juris sed facti. Ignorance of fact
may excuse, but not ignorance of law” (Bouvier’s Law Dictionary, 3rd rev., 8th ed.,
p. 2136), and it is immaterial whether the ignorance of law is actual or feigned.
“Quod per recordum probatum, non debet esse negatum. What is proved by
the record, ought not to be denied” (id. at 2159), and the ROA and Response prove
ignorance of the law on the part of the District of Columbia municipal corporation
judge and attorneys involved in the instant lawsuit and Response, constituting,
minimally, gross negligence (fraud) and misfeasance in public office.
RESPONSE AUTHORS’ M.O.: CONNIVANCE WITH ACTUAL CONGRESSIONAL
LEGISLATIVE FRAUD, SUBVERSION OF THE CONSTITUTION BY INFERENCE
The Supreme Court explains the constitutional difference between, on the
one hand, the states of the Union and, on the other, Columbia and the Territories:
On the part of the plaintiffs, it has been urged that Columbia is a
distinct political society, and is therefore “a state” according to the
definitions of writers on general law.
This is true. But as the act of Congress obviously uses the word
“state” in reference to the term as used in the Constitution, it becomes
necessary to inquire whether Columbia is a state in the sense of that
instrument. The result of that examination is a conviction that the
members of the American confederacy only are the states
contemplated in the Constitution.
9
. . . These clauses show that the word “state” is used in the
Constitution as designating a member of the union, and excludes from
the term the signification attached to it by writers on the law of
nations. Hepburn & Dundas v. Ellzey, 6 U.S. 445, 452, 2 Cranch 445,
2 L.Ed. 332 (1805). (ROA.302–304; App. 17).
It has been attempted to distinguish a Territory from the district of
Columbia; but the court is of opinion, that this distinction cannot be
maintained. They may differ in many respects, but neither of them is a
state, in the sense in which that term is used in the constitution. New
Orleans v. Winter, 1 Wheat. (U. S.) 91, 4 L. Ed. 44 (1816).
(ROA.304–305; App. 18).
Title 26 U.S.C. provides, in pertinent part:
Chapter 21 - FEDERAL INSURANCE CONTRIBUTIONS ACT
Subchapter A - Tax on Employees
§ 3121 - Definitions
. . . (e) State, United States, and citizen
(1) For purposes of this chapter—
The term “State” includes the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, and
American Samoa.
Whereas, (1) the Supreme Court in Hepburn and New Orleans, supra, is
unequivocal that neither Columbia nor any Territory is a state [sic] as that term is
used in the Constitution, and (2) Congress in 26 U.S.C. § 3121(e)(1) define the
term of art “State” so as to comprehend expressly only the District of Columbia
and certain of the Territories (ROA.313–314 and App. 31–32; ROA.324–326 and
App. 35–36) exclude impliedly every commonwealth united by and under
authority of the Constitution and admitted into the Union: Response authors
contradict both the Supreme Court and Congress by propounding by way of
10
inference and feigned ignorance of the law that the Title 26 U.S.C. term “State”
comprehends Texas and other members of the Union as well as “the District of
Columbia” and “U.S. territories,” i.e., that the body politic of Texas or Iowa is the
constitutional / political equivalent of that of Guam or Puerto Rico, evincing
connivance with actual congressional legislative fraud and sedition and constructive
treason to the de jure constitutional government of March 4, 1789; to wit:
He [Trowbridge] contends that the terms “state [sic4]” and “United
States” as used in those statutes [Title 26 U.S.C. and Title 28 U.S.C.
Chapter 176] refer only to the District of Columbia and to U.S.
territories and not to . . . the constitutional union that includes Texas.
(Resp. 24–25).
Treason is a breach of allegiance, and can be committed by him only
who owes allegiance, either perpetual or temporary. The words,
therefore, “owing allegiance to the United States,” in the first section,
are entirely surplus words, which do not, in the slightest degree, affect
its sense. The construction would be precisely the same, were they
omitted. United States v. Wiltberger, 18 U. S. 76, 97, Sup. Ct. (1820).
The reason Response authors feign ignorance of the controlling definition
and meaning of all aforesaid statutory terms and cite only cases that likewise are
devoid of reference thereto and rather “propound arguments,” i.e., dissemble and
prevaricate, exclusively is because there is no legal or competent evidence of that
which they need to prove, i.e., that Trowbridge is of a species of individual who is
a non-resident alien or citizen or resident of the political or geographical Title 28
U.S.C. Chapter 176 or Title 26 U.S.C. United States.
4
So in Response; should be “State”.
11
For Response authors to disclose their “legal reasoning” as to why the
District of Columbia municipal corporation has a right of action against
Trowbridge’s property would be to admit of the aforesaid crimes and high crimes
and work against interest.
The degree of artfulness of the Response authors’ argument that the Appeal
is frivolous and the capacity of the culture of silence to keep a lid on the offenses
evidenced herein will determine whether other District of Columbia municipal
corporation officers and supporters will be willing to risk their career in support of
the Response authors by way of the specter of subjection to public scrutiny of the
record of any ratification of the Response; to wit: “In maleficio ratihabitio
mandato comparatur. In a tort, ratification is equivalent to authority,” Bouvier’s
Law Dictionary, 3rd rev., 8th ed., p. 2138.
CONCLUSION
Response authors are liable to criminal prosecution for perpetrating the
Response under color of law, office, and authority, and said Response should be
stricken out as frivolous and fraudulent.
Date:
October 6, 2014
Respectfully submitted,
_________________________________
John Parks Trowbridge, Jr.
9816 Memorial Boulevard #205
Humble, Texas
(281) 540-2329
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN PARKS TROWBRIDGE, JR.,
Defendant-Appellant
)
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No. 14-20333
APPELLEE’S REPLY TO APPELLANT’S RESPONSE TO
MOTION FOR SANCTIONS AND APPELLEE’S RESPONSE TO
APPELLANT’S MOTION FOR SANCTIONS
John Parks Trowbridge, Jr. (“Trowbridge”), appellant herein, has
filed a response to the motion of the appellee, the United States of
America, that he be sanctioned for maintaining a frivolous appeal.
Trowbridge included with his response a motion requesting that the
United States and its attorneys and the judge of the District Court in
this matter be sanctioned with respect to the Government’s actions and
the District Court’s ruling in these proceedings. The Government
hereby replies to Trowbridge’s response to its motion for sanctions,
which motion should be granted. The Government also responds to
Trowbridge’s motion for sanctions, which should be denied.
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-2DISCUSSION
1.
Trowbridge contends that, under applicable law, “‘United
States’ means District of Columbia municipal corporation” and that
“[o]fficers of the District of Columbia municipal corporation . . .
masquerading as officers of the legislative, judicial, and executive
branches of the de jure nation government, . . . enact and enforce ‘laws’
that ‘authorize,’ without constitutional authority, exercise of personal
legislation and jurisdiction over Americans residing” outside the
District of Columbia (Resp. at 3, 4 (emphases in original)). He
characterizes the Government’s attorneys and the District Court judge
in this case as “District of Columbia municipal officers” who refuse to
recognize that the Internal Revenue Code does not apply to him because
he is not a resident of the District of Columbia. (Resp. at 6-7.)
Asserting that this alleged “fraud, denial of due process, connivance,
and culture of silence is systemic” within the Department of Justice, he
requests that the Court: (i) deny the Government’s motion for sanctions;
(i) impose a sanction of $5,000 against the Government; (ii) order that
the judge and attorneys representing the Government be criminally
charged with fraud; and (iii) order the convening of a grand jury to
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-3“root[ ] out the ultimate source of the fraud” he has alleged. (Resp. at 89.)
2.
Trowbridge’s frivolous contentions respecting the alleged
inapplicability of the Internal Revenue Code to him as a resident of
Texas are of a piece with those set out in his principal brief to this
Court. As the Government pointed out in its answering brief, this
Court has repeatedly recognized that the Code imposes a tax on the
taxable income of all individuals who, like Trowbridge, are citizens or
residents of the United States. See Tello v. Commissioner, 143 F. App’x
568, 570 (5th Cir. 2005) (imposing sanctions on taxpayer who argued
that the Commissioner of Internal Revenue had no authority to collect
tax revenue); Parker v. Commissioner, 117 F.3d 785, 787 (5th Cir. 1997)
(imposing sanctions on taxpayers for “ridiculous allegations that the
Internal Revenue Code is the product of an illegal conspiracy”); United
States v. Price, 798 F.2d 111, 113 (5th Cir. 1986) (“[t]he citizens of Texas
are subject to the Federal Tax Code”).
3.
Trowbridge’s argument that the attorneys of the United
States Department of Justice have no authority to represent the federal
government in this case is equally frivolous. As set forth in the
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-4complaint (ROA.8), the Justice Department commenced this action at
the direction of the Attorney General of the United States and at the
request of the Secretary of the Treasury pursuant to I.R.C. § 7401. See
Sullivan v. United States, 348 U.S. 170, 171-71 (1954). Trowbridge did
not challenge that authorization in his answer to the complaint. (See
ROA.56-87.) Contrary to Trowbridge’s assertions (Resp. at 2), the
Justice Department is an agency of the federal government and not of
the District of Columbia government. The Act to Establish the
Department of Justice, ch. 150, 16 Stat. 162 (1870), created the
Department as “an executive department of the government of the
United States,” with the Attorney General as its head, to handle the
Government’s legal business. Within the Department, the Tax Division
handles civil tax litigation like the present case.
4.
Trowbridge’s argument that the District Court lacked
jurisdiction over this case is equally frivolous. As the Government
pointed out in its opening brief (Br. at 2), jurisdiction in the District
Court was authorized under 28 U.S.C. §§ 1340 and 1345 and I.R.C.
§§ 7402 and 7403, which provide such jurisdiction for a suit brought by
the United States to collect taxes. This Court has rejected as frivolous
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-5arguments that the district courts lack jurisdiction over tax actions
against residents of the states. See, e.g., United States v. Henderson,
209 F. App’x 401, 402 (5th Cir. 2006) (holding that “[t]he United States
District Court for the Southern District of Texas is an Article III court
established by Congress” and that the district court had personal
jurisdiction over the taxpayer “because of his domicile in the
jurisdiction” and that the taxpayer’s “claim that he is not a citizen of the
United States is frivolous”); United States v. Masat, 948 F.2d 923, 934
(5th Cir. 1991) (rejecting as frivolous defendant’s argument that district
court lacked subject-matter jurisdiction over criminal tax action and
personal jurisdiction over him because he was a “non-citizen,” a “nonresident,” and a “freeman”).
5.
Trowbridge is undoubtedly aware that his contentions are
baseless. This Court has previously imposed sanctions on Trowbridge
for persisting in frivolous arguments. See Trowbridge v. Commissioner,
378 F.3d 432, 433 (5th Cir. 2004) (sanctioning Trowbridge for making
“frivolous” arguments that the Tax Court lacked jurisdiction “because
‘Article I administrative courts are prohibited from hearing any issue At
Law which has been enumerated in the Constitution only for the
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-6province of Article III courts’; that he is not a ‘resident’ of Texas or a
‘taxpayer’ subject to federal tax laws; that he has ‘denied and rebutted
any presumption of the existence of any contracts or commercial
agreements which create an attachment of an equity relationship that
would establish an admiralty or equity jurisdiction’; that he has
‘forfeited, waived, rejected, declined, and refused to voluntarily accept
any and all benefits from the United States’; and that he ‘objects to the
use of Federal Reserve Notes to discharge debts’”). He has been
similarly sanctioned by the Tax Court for making such arguments. See
Trowbridge et al. v. Commissioner, T.C. Memo. 2003-164, 2003 WL
21278475, at *10 (2003), on appeal, No. 04-60029 (5th Cir.), appeal
dismissed, June 3, 2004; Trowbridge et al. v. Commissioner, T.C. Memo.
2003-165, 2003 WL 21278414, at *10 (2003), aff’d, 378 F.3d 432 (5th
Cir. 2004).
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-7CONCLUSION
For the reasons stated above, the Government’s motion to impose
sanctions against Trowbridge for pursuing a frivolous appeal should be
granted. Trowbridge’s motion for sanctions against the United States
should be denied.
Respectfully submitted,
TAMARA W. ASHFORD
Acting Assistant Attorney General
/s/ Carol Barthel
ROBERT W. METZLER
CAROL BARTHEL
Attorneys
Tax Division
Department of Justice
Post Office Box 502
Washington, D.C. 20044
(202) 514-3938
(202) 514-2921
This 9th day of October, 2014.
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-8IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN PARKS TROWBRIDGE, JR.,
)
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No. 14-20333
DECLARATION
Carol Barthel of the Appellate Section, Tax Division, Department
of Justice, states:
The facts set forth in the accompanying reply and response is true
to the best of my knowledge and belief.
I declare under penalty of perjury pursuant to 28 U.S.C. § 1746
that the foregoing is true and correct. Executed this 9th day of October,
2014, at Washington, D.C.
/s/ Carol Barthel
CAROL BARTHEL
Attorney
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-9CERTIFICATE OF SERVICE
It is hereby certified that, on this 9th day of October, 2014, that:
• this reply and response was filed with the Clerk of the United
States Court of Appeals for the Fifth Circuit by using the
CM/ECF system;
• all required privacy redactions have been made in accordance
with Local Rule 25.2.13;
• the document has been scanned for viruses with the most recent
version of a commercial virus scanning program and is free of
viruses;
• the electronic and paper submissions are identical as required by
Local Rule 25.2.1.
I further certify that, on October 9, 2014, I have mailed the foregoing
reply and response by First Class Mail, postage prepaid, to the
following non-CM/ECF participant, addressed as follows:
Dr. John Parks Trowbridge, Jr.
9816 Memorial Blvd. #205
Humble, Texas 77338
/s/ Carol Barthel
CAROL BARTHEL
Attorney
_
866650.1
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN PARKS TROWBRIDGE, JR.,
Defendant-Appellant.
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No. 14-20333
APPELLANT’S REPLY TO APPELLEE’S RESPONSE TO
APPELLANT’S MOTION FOR SANCTIONS
Appellee United States of America (the “Appellee”), has filed a response to
the motion of appellant John Parks Trowbridge, Jr. (“Trowbridge”) that, among
other things, Appellee and counsel for Appellee be sanctioned for maintaining a
frivolous and fraudulent response to Trowbridge’s appeal brief (the “Appeal” or
“App.”). Trowbridge hereby replies to Appellee’s response to Trowbridge’s
motion for sanctions, which motion should be granted.
The words of a statute are to be taken in their ordinary and popular
meaning, unless they are technical terms or words of art, in which
case they are to be understood in their technical sense. . . . [Emphasis
added.] Henry Campbell Black, Handbook on the Construction and
Interpretation of the Laws (West Publishing Co.: St. Paul, Minn.,
1896), § 57, 128. (ROA.308).
Linguistic inference canons provide guidelines about what the
legislature likely meant, given its choice of some words and not
others. The linguistic inference canons include classic logical canons
such as expressio unius,42 noscitur a sociis,43 and ejusdem generis.44
Other inferential rules encourage interpreters to follow the ordinary
usage of text unless the legislature has itself defined the word or the
phrase has acquired a technical meaning.45 [Emphasis added.] Jacob
Scott, “Codified Canons and the Common Law of Interpretation,” The
Georgetown Law Journal, Vol. 98, Issue 2, January 2010, 352–353.
(App. 26, 28).
Table 1. Linguistic Inference Canons . . .
. . . Ordinary usage: Follow ordinary usage of terms, unless the
legislature gives them a specified or technical meaning. . . .
Dictionary definition: Follow dictionary definitions of terms, unless
the legislature has provided a specific definition. [Emphasis added.]
Id. at 357. (App. 28).
Contra negantem principia non est disputandum. There is no
disputing against one who denies principles. Bouvier’s Law
Dictionary, 3rd rev., 8th ed., p. 2129.
Appellee’s response to Trowbridge’s motion for sanctions is frivolous and
fraudulent for the same reasons as Appellee’s response brief (the “Response”):
Counsel for Appellee propound by inference some kind of Title 26 U.S.C. or Title
28 U.S.C. Chapter 176 nexus between Trowbridge and the geographical or
political United States, to the exclusion of the controlling definition of the
geographical and political United States in Title 26 U.S.C. and Title 28 U.S.C.
Chapter 176. Cases cited by counsel for Appellee in support of the arguments in
said reply likewise are devoid of reference to either of said controlling definitions.
Counsel for Appellee not only refuse to follow the law, but also attempt to
lead the Court astray into reliance on counsel for Appellee’s own private,
unknown, unwritten version of “law” as to the definition and meaning of “United
States,” by which Trowbridge should be held liable by inference.
2
All of Appellee’s filings evince a defiance and ignorance of material law
that is indispensable to resolution of the allegations in the Complaint and operates
to deny Trowbridge due process of law.
Said law consists of the definition of the Title 26 U.S.C. terms “United
States,” “State,” and “includes”; and the Title 28 U.S.C. Chapter 176 terms
“United States,” “counsel for the United States,” “court,” “debt,” and “judgment.”
That Tamara Wenda Ashford, Robert Joel Branman, Robert W. Metzler, and
Carol A. Barthel (and Kenneth Magidson, Joshua David Smeltzer, and Lynn
Nettleton Hughes) are legally ignorant of the meaning of the respective definition
of every aforesaid statutory term is indisputable—because there is no evidence in
the ROA or any of Appellee’s filings that indicates otherwise.
It is not possible for Trowbridge to receive fair treatment or enjoy due
process of law if every actor prosecuting the instant lawsuit or opposing the instant
appeal is ignorant of / denies the selfsame law upon which each depends for
authority to prosecute or hear said cause or oppose said appeal.
The decision before this Honorable Court is a simple one: whether the Court
should excuse Appellee and counsel for Appellee, plaintiff and counsel for plaintiff
United States of America, and the trial court for documented ignorance of law,
refusal to follow / observe the law, failure to produce evidence of jurisdiction
following proper challenge thereof, and advocacy of an inferred “law” known only
3
to Tamara Wenda Ashford, Robert Joel Branman, Robert W. Metzler, Carol A.
Barthel, Kenneth Magidson, Joshua David Smeltzer, and Lynn Nettleton Hughes
by which Trowbridge should be held liable for the allegations in the Complaint.
CONCLUSION
Appellee’s reply to Trowbridge’s motion for sanctions, like the Response, is
frivolous and fraudulent for the reasons cited hereinabove.
Trowbridge’s motion to impose sanctions against Appellee and counsel for
Appellee for pursuing a frivolous and fraudulent response to Trowbridge’s Appeal
should be granted, as well as all other sanctions recommended in said motion.
Date:
October 14, 2014
Respectfully submitted,
_________________________________
John Parks Trowbridge, Jr.
9816 Memorial Boulevard #205
Humble, Texas
(281) 540-2329
4
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-20333
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
February 3, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
JOHN PARKS TROWBRIDGE, JR.,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
No. 4:14-CV-27
Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
John Parks Trowbridge (“Trowbridge”) appeals the district court’s grant
of summary judgment in favor of the government, which ordered Trowbridge’s
income tax liabilities for 1993 through 1997 reduced to judgment, the
associated tax liens on the real property foreclosed, and the real property sold.
Trowbridge has not contested the validity of the tax liabilities or his ownership
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*
1 of 7
No. 14-20333
of the real property at issue. He has therefore waived those issues. Yohey v.
Collins, 985 F.2d 222, 224–25 (5th Cir. 1993). Instead, Trowbridge argues that
Harris County is not in the United States and that he is not a citizen of the
United States. He contends that this means the district court did not have
subject matter jurisdiction over tax actions against residents of states and that
he is not subject to federal income taxes.
This court has already rejected as frivolous the argument that district
courts lack subject matter jurisdiction over tax actions against residents of
states. United States v. Masat, 948 F.2d 923, 934 (5th Cir. 1991). This court
has also stated that 26 U.S.C. §§ 7602(a) and 7604, which authorize the
issuance and enforcement of IRS summonses, “are federal laws that the district
court has jurisdiction to consider under 28 U.S.C. § 1331.” United States v.
Henderson, 209 F. App’x 401, 402 (5th Cir. 2006). Moreover, 28 U.S.C. § 1340
explicitly grants district courts jurisdiction in internal revenue cases and
28 U.S.C. § 1345 explicitly grants jurisdiction for civil suits commenced by the
United States.
Trowbridge’s argument that he is not a citizen of the United States is
equally frivolous. He presents “shopworn arguments characteristic of taxprotestor rhetoric that has been universally rejected by this and other courts.”
Stearman v. Commissioner, 436 F.3d 533, 537 (5th Cir. 2006). This court has
already held that the “citizens of Texas are subject to the Federal Tax Code.”
United States v. Price, 798 F.2d 111, 113 (5th Cir. 1986). We do not address
his arguments further as there is “no need to refute these arguments with
somber reasoning and copious citation of precedent; to do so might suggest
these arguments have some colorable merit.” Crain v. Commissioner, 737 F.2d
1417 (5th Cir. 1984). They have no merit at all.
This is not the first time Trowbridge has had these frivolous arguments
rejected. In Trowbridge et al. v. Commissioner, T.C. Memo. 2003-164, 2003 WL
2
2 of 7
No. 14-20333
21278475, Trowbridge made similar arguments in contesting his 1991-1995
tax liabilities. The tax court imposed a $25,000 sanction. In contesting his
1996-1997 tax liabilities, Trowbridge again used similar arguments in the tax
court; he was sanctioned a second time. Trowbridge et al. v. Commissioner,
T.C. Memo. 2003-165, 2003 WL 21278414, at *10. Trowbridge appealed to this
court and once again resorted to frivolous arguments. This court upheld the
tax court’s sanctions and imposed additional sanctions.
Given Trowbridge’s history of frivolous appeals, we GRANT Appellee’s
motion for sanctions pursuant to Fed. R. App. P. 38 in the amount of $8,000.
We also order that Trowbridge be barred from filing any further appeals in this
court until (1) the sanctions awarded by this court are fully paid; and (2) a
district court certifies his appeal as having some arguable merit. See Smith v.
McCleod, 946 F.2d 417, 418 (5th Cir. 1991). Trowbridge’s motions are DENIED
as moot.
Accordingly, the order of the district court is AFFIRMED.
3
3 of 7
Document: 00512924773
Page: 1
Date Filed: 02/03/2015
Print Form
.00)
No. of Copies
Pages Per Copy
Total Cost
Total $ ________________
Cost per Page*
REQUESTED
Pages per
Document
Cost per Page*
Total Cost
Costs are taxed in the amount of $ _______________
No. of
Documents
ALLOW ED
(If different from amount requested)
By ____________________________________________
Deputy Clerk
LYLE W.CA Y C E , C LERK
*SEE REVERSE SIDE FOR RULES
GOVERNING TAXATION OF COSTS
Attorney for __________________________________________
4 of 7
_____________________________________________________________________
(Signature)
I _____________________________________________________________, do hereby swear under penalty of perjury that the services for which fees have been charged were
incurred in this action and that the services for which fees have been charged were actually and necessarily performed. A copy of this Bill of Costs was this day mailed to
opposing counsel, with postage fully prepaid thereon. This _______________ day of ________________________________, ______________.
State of
County of _________________________________________________
Costs are hereby taxed in the amount of $ _______________________ this ________________________________ day of __________________________, ___________.
Other:
Appellant’s Reply Brief
Appellee’s Brief
Appellant’s Brief
Appendix or Record Excerpts
Docket Fee ($
COSTS TAXABLE UNDER
Fed. R. App. P. & 5 th Cir. R. 39
The Clerk is requested to tax the following costs against: _________________________________________________________________________________________
_______________________________________________ v. __________________________________________ No. _____________________
NOTE: The Bill of Costs is due in this office within 14 days from the date of the
opinion, See FED . R. APP. P. & 5T H CIR . R. 39. Untimely bills of costs must be
accompanied by a separate motion to file out of time, which the court may deny.
BILL OF COSTS
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
Case: 14-20333
Document: 00512924773
Page: 2
Date Filed: 02/03/2015
COSTS
days after service of the bill of costs, unless the court extends the time.
(4) the fee for filing the notice of appeal.
(3) premiums paid for a supersedeas bond or other bond to preserve rights pending appeal; and
(2) the reporter’s transcript, if needed to determine the appeal;
(1) the preparation and transmission of the record;
(e) Costs of Appeal Taxable in the District Court. The following costs on appeal are taxable in the district court for the benefit of the party entitled to costs under this rule:
5 of 7
(3) The clerk must prepare and certify an itemized statement of costs for insertion in the mandate, but issuance of the mandate must not be delayed for taxing costs. If the mandate
issues before costs are finally determined, the district clerk must – upon the circuit clerk’s request – add the statement of costs, or any amendment of it, to the mandate.
(2) Objections must be filed within
(1) A party who wants costs taxed must – within 14 days after entry of judgment – file with the circuit clerk, with proof of service, an itemized and verified bill of costs.
(d) Bill of costs: Objections; Insertion in Mandate.
©) Costs of Copies Each court of appeals must, by local rule, fix the maximum rate for taxing the cost of producing necessary copies of a brief or appendix, or copies of records
authorized by rule 30(f). The rate must not exceed that generally charged for such work in the area where the clerk’s office is located and should encourage economical methods of
copying.
(b) Costs For and Against the United States. Costs for or against the United States, its agency or officer will be assessed under Rule 39(a) only if authorized by law.
(4) if a judgment is affirmed in part, reversed in part, modified, or vacated, costs are taxed only as the court orders.
(3) if a judgment is reversed, costs are taxed against the appellee;
(2) if a judgment is affirmed, costs are taxed against the appellant;
(1) if an appeal is dismissed, costs are taxed against the appellant, unless the parties agree otherwise;
(a) Against Whom Assessed. The following rules apply unless the law provides or the court orders otherwise;
F ED . R. A P P . P. 39.
39.3 Tim e for Filing Bills of Costs. The clerk must receive bills of costs and any objections within the times set forth in F ED . R. A PP . P. 39(D ). See 5 T H C IR . R. 26.1.
39.2 Nonrecovery of Mailing and Com m ercial Delivery Service Costs. Mailing and commercial delivery fees incurred in transmitting briefs are not recoverable as taxable costs.
39.1 Taxable Rates. The cost of reproducing necessary copies of the brief, appendices, or record excerpts shall be taxed at a rate not higher than $0.15 per page, including cover,
index, and internal pages, for any for of reproduction costs. The cost of the binding required by 5 T H C IR . R. 32.2.3that mandates that briefs must lie reasonably flat when open shall
be a taxable cost but not limited to the foregoing rate. This rate is intended to approximate the current cost of the most economical acceptable method of reproduction generally
available; and the clerk shall, at reasonable intervals, examine and review it to reflect current rates. Taxable costs will be authorized for up to 15 copies for a brief and 10 copies
of an appendix or record excerpts, unless the clerk gives advance approval for additional copies.
FIFTH CIRCUIT RULE 39
Case: 14-20333
United States Court of Appeals
FIFTH CIRCUIT
OFFICE OF THE CLERK
LYLE W. CAYCE
CLERK
TEL. 504-310-7700
600 S. MAESTRI PLACE
NEW ORLEANS, LA 70130
February 03, 2015
MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW
Regarding: Fifth Circuit Statement on Petitions for Rehearing
or Rehearing En Banc
No. 14-20333
USA v. John Trowbridge, Jr.
USDC No. 4:14-CV-27
--------------------------------------------------Enclosed is a copy of the court's decision. The court has entered
judgment under FED R. APP. P. 36. (However, the opinion may yet
contain typographical or printing errors which are subject to
correction.)
FED R. APP. P. 39 through 41, and 5TH Cir. R.s 35, 39, and 41 govern
costs, rehearings, and mandates. 5TH Cir. R.s 35 and 40 require
you to attach to your petition for panel rehearing or rehearing en
banc an unmarked copy of the court's opinion or order.
Please
read carefully the Internal Operating Procedures (IOP's) following
FED R. APP. P. 40 and 5TH CIR. R. 35 for a discussion of when a
rehearing may be appropriate, the legal standards applied and
sanctions which may be imposed if you make a nonmeritorious
petition for rehearing en banc.
Direct Criminal Appeals. 5TH CIR. R. 41 provides that a motion for
a stay of mandate under FED R. APP. P. 41 will not be granted simply
upon request. The petition must set forth good cause for a stay
or clearly demonstrate that a substantial question will be
presented to the Supreme Court. Otherwise, this court may deny
the motion and issue the mandate immediately.
Pro Se Cases.
If you were unsuccessful in the district court
and/or on appeal, and are considering filing a petition for
certiorari in the United States Supreme Court, you do not need to
file a motion for stay of mandate under FED R. APP. P. 41. The
issuance of the mandate does not affect the time, or your right,
to file with the Supreme Court.
The judgment entered provides that appellant pay to appellee the
costs on appeal.
Sincerely,
LYLE W. CAYCE, Clerk
By: _______________________
Rhonda M. Flowers, Deputy Clerk
Enclosure(s)
Ms. Carol A. Barthel
6 of 7
Mr.
Mr.
Mr.
Mr.
Robert Joel Branman
Robert William Metzler
Joshua David Smeltzer
John Parks Trowbridge Jr.
7 of 7
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 14-20333
Summary Calendar
_______________________
D.C. Docket No. 4:14-CV-27
United States Court of Appeals
Fifth Circuit
FILED
February 3, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JOHN PARKS TROWBRIDGE, JR.,
Defendant - Appellant
Appeal from the United States District Court for the
Southern District of Texas, Houston
Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
JUDGMENT
This cause was considered on the record on appeal and the briefs on file.
It is ordered and adjudged that the order of the District Court appealed
from is affirmed.
IT IS ORDERED that defendant-appellant pay to plaintiff-appellee the
costs on appeal to be taxed by the Clerk of this Court.
IT IS FURTHER ORDERED that sanctions pursuant to Fed. R. App. P.
38 in the amount of $8,000 be taxed against Trowbridge. We also order that
Trowbridge be barred from filing any further appeals in this court until the
sanctions awarded by this court are fully paid; and a district court certifies
his appeal as having some arguable merit.
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
On Appeal from the United States District Court
For the Southern District of Texas
Houston Division, Civil No. 4:14-cv-00027
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOHN PARKS TROWBRIDGE, JR.,
Defendant-Appellant
BRIEF FOR APPELLANT JOHN PARKS TROWBRIDGE, JR.
John Parks Trowbridge, Jr.
PRO SE
9816 Memorial Blvd. #205
Humble, Texas
Telephone (281) 540-2329
Telefacsimile (281) 540-4329
CERTIFICATE OF INTERESTED PERSONS
Case No. 14-20333
On Appeal from the United States District Court
for the Southern District of Texas
Houston Division, Civil No. 4:14-cv-00027
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN PARKS TROWBRIDGE, JR.,
Defendant-Appellant.
I, John Parks Trowbridge, Jr., hereby certify that the following listed persons
and entities as described in the fourth sentence of 5TH CIR. R. 28.2.1 have an
interest in the outcome of this case. These representations are made in order that
the judges of this Court may evaluate possible disqualification or recusal in this
appeal.
1.
United States of America – Plaintiff-Appellee
As represented through counsel:
Carol A. Barthel and Robert Joel Branman, Esq.
2.
John Parks Trowbridge, Jr. – Defendant-Appellant
Counsel below:
3.
United States Attorney (Houston)
Kenneth Magidson, for Plaintiff
4.
Litigant: Assistant United States Attorney (Dallas)
Joshua D. Smeltzer, for Plaintiff
5.
Montgomery County Taxing Authorities
Lori Gruver, Linebarger Goggan Blair & Sampson, LLP (Austin), for
Defendant
i
Trial court judge:
6.
Southern District of Texas, Houston Division
Lynn N. Hughes
I know of no other persons, associations of persons, firms, partnerships,
corporations, guarantors, insurers, affiliates, parent corporations, or other legal
entities who or which are financially interested in the outcome of the litigation.
_________________________________
John Parks Trowbridge, Jr.
9816 Memorial Blvd. #205
Humble, Texas
Telephone (281) 540-2329
Telefacsimile (281) 540-4329
ii
STATEMENT REGARDING ORAL ARGUMENT
This lawsuit hinges on the meaning of the definition of a single statutory
term. For this reason, Trowbridge respectfully suggests that oral argument is not
likely to assist this Honorable Court in adjudicating this matter. Trowbridge seeks,
among other things, reversal and dismissal, with prejudice, of the trial court’s
amended final judgment and order based upon legal errors committed by the trial
court in respect of the sole material fact in this case relating to jurisdiction; and
respectfully suggests the Court disallow oral argument and rely exclusively on
applicable law and the evidence and material fact in the Record on Appeal
(hereinafter “ROA”).
iii
TABLE OF CONTENTS
Page
CERTIFICATE OF INTERESTED PERSONS .
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STATEMENT REGARDING ORAL ARGUMENT .
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TABLE OF CONTENTS .
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TABLE OF CITATIONS OF AUTHORITY .
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JURISDICTIONAL STATEMENT
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A.
District Court’s Jurisdiction .
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B.
Court of Appeals Jurisdiction
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C.
Timeliness of Appeal .
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D.
Final Judgment .
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STANDARD OF REVIEW .
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STATEMENT OF THE ISSUES .
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I.
Whether the trial court erred when it concluded as a
matter of law that (n)orth Harris County (Texas) is
part of the United States.
II.
Whether the trial court erred when it ruled that the
trial court has jurisdiction.
STATEMENT OF THE CASE AND FACTS
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SUMMARY OF THE ARGUMENT .
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ARGUMENT .
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I.
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The trial court erred when it concluded as a matter of
law that (n)orth Harris County (Texas) is part of the
United States.
iv
CITIZENS OR RESIDENTS OF THE UNITED STATES LIABLE TO INCOME TAX 13
A CURIOUS CHOICE .
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JURISDICTIONAL PROVISIONS OF THE CONSTITUTION .
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TWO DIFFERENT GOVERNMENTS, TWO DIFFERENT LEGISLATURES .
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STATES VERSUS COLUMBIA AND THE TERRITORIES
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THE UNALIENABLE AND CONSTITUTIONAL RIGHT OF LIBERTY .
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LEGISLATIVE ALCHEMY
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CONGRESS SET ABOUT TO USURP THE LIBERTY OF
THE AMERICAN PEOPLE . . . . . . . .
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FIRST OF TWO LEGISLATIVE STRATAGEMS .
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ACTUAL LEGISLATIVE FRAUD .
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IGNORANCE OF THE LAW EXCUSES NO ONE .
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CONSTRUCTION AND INTERPRETATION OF STATUTES .
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THE SUPREME COURT ON STATUTORY CONSTRUCTION .
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JUNE 30, 1864, MEANING OF THE TERM OF ART “STATE” .
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MEANING OF “STATE” IN THE REVISED STATUTES OF 1873–’74
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MEANING OF “UNITED STATES” IN THE REVENUE ACT OF
SEPTEMBER 8, 1916 . . . . . . . . . . . .
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SOCIAL SECURITY ACT OF AUGUST 14, 1935 .
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“INCLUDES AND INCLUDING” .
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POLITICAL / GOVERNMENTAL SENSE VERSUS GEOGRAPHICAL
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NOVEL DEFINITIONS OF “STATE,” “UNITED STATES” COMPREHEND
ONLY THE DISTRICT OF COLUMBIA AND THE TERRITORIES . . .
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AMERICANS APPEAR TO WAIVE THE CONSTITUTIONAL RIGHT OF LIBERTY
UPON ACQUIRING THE RIGHT TO RECEIVE SOCIAL SECURITY BENEFITS. . 33
MODERN SOCIAL SECURITY TERMS “STATE,” “UNITED STATES” .
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CONTROLLING DEFINITION OF “UNITED STATES” IN TITLE 26 U.S.C. .
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“THE STATES” OF THE UNITED STATES CODE .
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FROM RATIONALITY TO POLITICAL / GEOGRAPHICAL ABSURDITY .
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II.
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The trial court erred when it ruled that the trial court
has jurisdiction.
A DISTINCT PATTERN OF PROCEDURE
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TWO TYPES OF COURT .
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SECOND CONGRESSIONAL LEGISLATIVE STRATAGEM: CONGRESS GIVE
CONSTITUTIONAL AND TERRITORIAL COURTS THE SAME NAME . . .
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LOWER INFERIOR COURTS AND FEDERAL DEBT COLLECTION.
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TITLE 28 U.S.C. CHAPTER 176 TERMS OF ART “COURT,”
“UNITED STATES” . . . . . . . . . . . .
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TROWBRIDGE’S RESIDENCE, DOMICIL, AND LEGAL RESIDENCE .
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CONCLUSION.
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PRAYER FOR RELIEF .
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ADDENDUM .
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CERTIFICATE OF SERVICE
CERTIFICATE OF COMPLIANCE
vi
TABLE OF CITATIONS OF AUTHORITY
CONSTITUTIONAL PROVISIONS
Page
Article 1 . .
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Article 1 § 8(1) .
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Article 1 § 8(1–16).
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Article 1 § 8(17)
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Article 1 § 8(1–18).
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Article 3 .
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Article 3 § 1 .
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41, Addendum B
Article 3 § 2, cl. 1, 2 .
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Article 4 .
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Article 4 § 3 .
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Article 4 § 3(2) .
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STATUTES
4 U.S.C. Chapter 4 .
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4 U.S.C. § 106(a) .
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4 U.S.C. § 110(d) .
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. 37, 38
5 U.S.C. § 552a(a)(2) .
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5 U.S.C. § 552a(a)(13)
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26 U.S.C. § 6109(d) .
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vii
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26 U.S.C. §§ 7201–7241 .
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26 U.S.C. § 7701(a)(9), (10), (c)
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28 U.S.C. § 41 .
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15, Addendum C
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28 U.S.C. § 124(b), (b)(2)
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. 9, Addendum C–D
28 U.S.C. § 132(a).
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28 U.S.C. § 451.
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.41–42, 48
28 U.S.C. § 528.
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51, Addendum D
28 U.S.C. § 1291 .
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28 U.S.C. § 1340 .
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28 U.S.C. § 3001(a), (b), (c) .
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28 U.S.C. § 3002(1)(A), (2),
(3)(B), (8), (15) . . . . .
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. 9, 44, 45, 48, 50, Addendum D–E
28 U.S.C. Chapter 176
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. 8, 11, 45, 50, 51
42 U.S.C. Chapter 7 .
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42 U.S.C. § 1301(a)(1), (2), (b) .
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. 35, 36
“An Act To increase the revenue, and for other purposes,”
Ch. 463, SEC. 15, 39 Stat. 756, 773, September 8, 1916 .
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. 21, 30
“An Act to provide a Government for the District of
Columbia,” ch. 62, 16 Stat. 419, February 21; later
legislated in “An Act Providing a Permanent Form of
Government for the District of Columbia,” ch. 180,
sec. 1, 20 Stat. 102, June 11, 1878, to remain and
continue as a municipal corporation (brought forward
from the Act of 1871, as provided in the Act of March
2, 1877, amended and approved March 9, 1878, Revised
viii
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. 2, Addendum C
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. 42
. 43–44
Statutes of the United States Relating to the District of
Columbia . . . 1873–’74 (in force as of December 1, 1873),
sec. 2, p. 2); as amended by the Act of June 28, 1935, 49
Stat. 430, ch. 332, sec. 1 (Title 1, Section 102, District of
Columbia Code (1940)) . . . . . . . . 11, 16–17, 29, 32, 35, 41, 51
“An Act to provide Internal Revenue to support the
Government, to pay Interest on the Public Debt, and for
other Purposes,” Ch. 173, 13 Stat. 223, 306, June 30, 1864,
SEC. 182 . . . . . . . . . . . . . . . . .
21, 23, 29, 38
Revised Statutes of the United States, Passed at the First
Session of the Forty-third Congress, 1873–’74, TITLE
XXXV, INTERNAL REVENUE, SEC. 3140, p. 601,
approved retroactively as of the Act of March 2, 1877,
Amended and approved as of the Act of March 9, 1878 .
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Social Security Act of August 14, 1935 .
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11, 31, 32, 33
Social Security Act of August 14, 1935. SECTION 801 .
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.34–35, 36
Social Security Act of August 14, 1935, SECTION
1101(a)(1), (2), (b) . . . . . . . . . . .
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. 30, 36
Social Security Act of August 14, 1935. SECTION 1101(a)(6) .
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. 35
U.C.C. § 9-307(h) .
. 51
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. 21, 38
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REGULATIONS
26 C.F.R. § 1.1-1(a)(1)
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. 13, 50
27 C.F.R. § 72.11 .
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. 32
American Tobacco Company v. John Patterson, No. 80-1199,
456 U.S. 63, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982) . . . .
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. 27
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CASES
Balzac v. People of Porto Rico, 258 U.S. 298, 312 (1922) . 40, 41, 42, 43, 46
ix
Black Sea Inv. Ltd. v. United Heritage Corp., 204 F.3d 647, 650 .
BMW of North America Inc. v. Gore, 517 U.S. 559,
575–576, 581, 589 (1996) . . . . . . . .
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. 4
51, 53, Addendum E–F
Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25
L.Ed.2d 747 (1970) . . . . . . . . . . . .
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. 34
Chisholm v. Georgia, 2 U.S. 2 Dall. 419, 472 (1793) .
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. 18
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Cohens v. Virginia, 19 U.S. 264, 434, 6 Wheat. 265, 5 L.Ed. 257 (1821) . 14
Gibbons v. Ogden, 27 U.S. 1 (1824) .
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. 20
Goldman v. Bosco, 120 F.3d 53, 54.
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. 3
Hepburn & Dundas v. Ellzey, 6 U.S. 445, 452, 2 Cranch
445, 2 L.Ed. 332 (1805) . . . . . . . . . . .
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. 17, 21
.
Jones v. State Board of Education of and for the State of Tennessee,
397 U.S. 31, 90 S.Ct. 779, 25 L.Ed.2d 27 (1970) . . . . . .
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. 34
Kitchens v. Steele, 112 F.Supp. 383, Dist. Court W.D. Missouri (1953).
. 32
Linardos v. Fortuna, 157 F.3d 945 (2d Cir. 1998) .
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. 47
Marbury v. Madison, 5 U. S. 137, 176 (1803)
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. 50
McNary v. Haitian Refugee Center, Inc., 498 U.S. 479,
111 S.Ct. 888, 112 L.Ed.2d 1005 (1991) . . . . .
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. 26
Mookini v. United States, 303 U.S. 201, 205 (1938).
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40, 41, 42, 43
Mortensen v. First Federal Savings and Loan Association,
549 F.2d 884, ¶ 27 . . . . . . . . . . . . .
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. 3
Munn v. Algee, 924 F.2d 568, 575 .
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. 3
Murphy v. Uncle Ben's, Inc., 168 F.3d 734, 737 .
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. 4
x
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New Orleans v. Winter, 1 Wheat. (U. S.) 91, 4 L. Ed. 44 (1816) .
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. 18, 21
Perry v. United States, 294 U.S. 330, 353 (1935)
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. 25
Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296,
300, 78 L.Ed.2d 17 (1983) . . . . . . . . . .
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. 32
State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408,
425 (2003) . . . . . . . . . . . . . . .
53, Addendum E
Texas v. Florida, 306 U.S. 398 (1939) .
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. 46
RULES
FED. R. APP. P. 3(a)(1).
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FED. R. APP. P. 4(a)(1)(A)
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FED. R. APP. P. 25(a)(2)(B)(ii) .
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FED. R. APP. P. 26(a)(1)(C) .
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FED. R. APP. P. 31(a)(1) .
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5TH CIR. R. 31.3 .
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FED. R. CIV. P. 12(b)(1) .
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FED. R. CIV. P. 17(a)(1) .
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. 8
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OTHER AUTHORITIES
A Dictionary of Law, 7th ed., Jonathan Law and Elizabeth Martin, eds.
(Oxford University Press: Oxford, 2009), 295 . . . . . . . . 29, 31
Black, Henry Campbell, Handbook on the Construction and Interpretation
of the Laws (St. Paul, Minn.: West Publishing Co., 1896), § 57, 128. . . 28
Black’s Law Dictionary, 1st ed., p. 1119 .
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. 22
Black’s Law Dictionary, 2nd ed., p. 95 .
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. 34
Blackstone, William, Commentaries on the Laws of England:
Book the First, A Reprint of the First Edition with Supplement
(Dawsons of Pall Mall: London, 1966), 45–46 . . . . . .
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. 24
Bouvier’s Law Dictionary, Third Revision (Being the Eighth Edition),
by Francis Rawle (hereinafter “Bouvier’s 8th”), p. 2155 . . . . .
. 20
Bouvier’s 8th, p. 921 .
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. 47
Bouvier’s 8th, p. 1488.
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. 25
Bouvier’s 8th, p. 2130.
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Bouvier’s 8th, p. 2132.
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Bouvier’s 8th, p. 2134.
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. 29
Bouvier’s 8th, p. 2166.
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. 49
Bouvier’s 8th, pp. 3120–3121 .
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. 23
DeWitt, Larry, “The Development of Social Security in
America,” Social Security Bulletin, Vol. 70, No. 3, 2010,
U.S. Social Security Administration . . . . . . .
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. 34
Los Angeles Times, “Survey: Banking industry’s reputation is nearly
as bad as that of Congress; BofA ranks last,” August 29, 2013 . . .
. 24
Nelson, Thomas Clark, “Once upon a time, in a faraway
land . . .”, Why the 14th Amendment is a political Trojan
horse: And did not make a “citizen of the United States”
of anyone born in one of the Union states, including
slaves (Self-published: January 3, 2013), 43 . . . . .
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.
New York Times, “Stabilizing Money Rates,” Section 3, Editorial
Section, January 18, 1920, 33 . . . . . . . . . . . .
xii
. 19–20
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. 20
Rarick, Rep. John R., “Deficit Financing,” Congressional
Record (House of Representatives), 92nd Cong., 1st Sess.,
Vol. 117—Part 1, February 1, 1971, 1261. . . . . .
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. 19
Scott, Jacob, “Codified Canons and the Common Law of
Interpretation,” The Georgetown Law Journal, Vol. 98,
Issue 2, January 2010, 341, 352–353, 357 . . . . . 11, 26–27, 28, 31, 51
Singer, Norman J. and Singer, J.D. Shambie, Statutes and
Statutory Construction, 7th ed., 2007 new ed., vol. 2A,
Thomson – West, 398–412 . . . . . . . . . .
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. 28
U.S. Dept. of the Interior, Office of Insular Affairs,
“All OIA Jurisdictions” . . . . . . . . .
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. 37
U.S. Dept. of the Interior, Office of Insular Affairs, “U.S.
Territories Under U.S. Fish and Wildlife Jurisdiction or
Shared with Johnston Atoll Chemical Agent Disposal
System (JACADS)” . . . . . . . . . . . .
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.
. 37
Webster, Daniel (1782–1852), from “The Presidential
Protest,” a speech delivered in the U.S. Senate, May 7,
1834, The Works of Daniel Webster, vol. 4, 18th ed.
(Little, Brown & Co.: Boston, 1881), 133 . . . . .
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. 18
Webster’s Dictionary, 1828 ed., s.v. “State” .
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. 22
xiii
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.
JURISDICTIONAL STATEMENT
A.
District Court’s Jurisdiction
Trowbridge resides in Harris County, Texas. The Constitution provides in
Article 1 § 8(1–16) that Congress shall have subject-matter legislative power
throughout the Union, i.e., in places like Harris County, Texas. The Plaintiff
alleges in the Complaint that Trowbridge resides within the jurisdiction of the trial
court and Trowbridge hears not from the trial court that the trial court disagrees.
Wherefore, in the interests of maintaining possession of Trowbridge’s
property, Trowbridge sends a conditional acceptance and demand for proof or
withdrawal of claims to the authorized representative of claimant United States and
provides the trial court with a certified copy thereof. Notwithstanding that the
conditional acceptance and demand does not meet FEDERAL RULES OF CIVIL
PROCEDURE criteria as an answer to the lawsuit the trial court rules “The court will
construe the conditional acceptance and demand for proof by John Parks
Trowbridge, Jr. as his answer to the lawsuit.” (ROA.91). At this point, at least in
form, it appears that Trowbridge has joined the action and, receiving no word of
dismissal from the trial court, rather than risk loss of possession of Trowbridge’s
property for default, Trowbridge responds to the filings of the Plaintiff.
As documented herein, the trial court is not a judicial Article III
constitutional court with subject-matter jurisdiction in Harris County, Texas, but a
1
legislative Article IV territorial court with plenary jurisdiction in geographical area
described in Article 1 § 8(17) or 4 § 3(2) of the Constitution. At no time does the
Plaintiff or trial court disclose / admit this fact. The ROA reflects multiple
challenges of the trial court’s jurisdiction by Trowbridge and is the subject matter
of this Appeal.
B.
Court of Appeal’s Jurisdiction
Trowbridge appeals a final decision from a court of the United States which
represents itself to be within the composition of the Fifth Judicial Circuit of the
United States, 28 U.S.C. § 41. This Court has jurisdiction pursuant to 28 U.S.C. §
1291, which grants courts of appeals “jurisdiction of appeals from all final
decisions of the district courts of the United States.”
C.
Timeliness of Appeal
The United States District Court enters amended final judgment and order of
sale and vacature as of May 23, 2014. (ROA.413, 414–417). Trowbridge timely
files notice of appeal as of May 27, 2014, pursuant to FED. R. APP. P. 3(a)(1) and
4(a)(1)(A). (ROA.418). Trowbridge timely serves and files this Appeal August 18,
2014, pursuant to July 7, 2014, Briefing Notice; FED. R. APP. P. 25(a)(2)(B)(ii),
26(a)(1)(C), and 31(a)(1); and 5TH CIR. R. 31.3.
D.
Final Judgment
This appeal is from a final judgment that disposes of all parties’ claims.
2
STANDARD OF REVIEW
Statutory interpretation presents a question of law over which this Court
exercises de novo review. The ROA reflects no evidence of subject-matter
jurisdiction despite multiple challenges thereof by Trowbridge, FED R. CIV. P.
12(b)(1). “Moreover, the plaintiff will have the burden of proof that jurisdiction
does in fact exist.” Mortensen v. First Federal Savings and Loan Association, 549
F.2d 884, ¶ 27 (3d Cir. 1977). “[I]n Rosemound Sand & Gravel v. Lambert Sand
& Gravel, 469 F.2d 416 (5th Cir. 1972). . . . [d]espite the opportunity, plaintiff had
only the barest conclusory allegations in his complaint, with little to buttress
them.” Id. at ¶ 32.
Notwithstanding existence of no law or evidence that would support a
conclusion that Harris County, Texas, wherein Trowbridge resides, is part of the
United States—and competent evidence and relevant citations of authority and
decisions to the contrary produced by Trowbridge: The trial court concludes as a
matter of law that the said county is part of the United States—which conclusion
operates to infer that the trial court has jurisdiction.
“However, when the district court’s ruling is predicated on its view of a
question of law, it is subject to de novo review.” Munn v. Algee, 924 F.2d 568, 575
(5th Cir. 1991). “[B]ut asserted legal errors are reviewed de novo.” Goldman v.
Bosco, 120 F.3d 53, 54 (5th Cir.1997). “However, to the extent the district court's
3
decision in this case rests on an interpretation of the law, the decision is reviewed
de novo.” Murphy v. Uncle Ben's, Inc., 168 F.3d 734, 737 (5th Cir. 1999). See also
Black Sea Inv. Ltd. v. United Heritage Corp., 204 F.3d 647, 650 (5th Cir. 2000).
Under the de novo standard of review, the Court owes no deference to the
trial court’s statutory-interpretation analysis.
4
STATEMENT OF THE ISSUES
I.
Whether the trial court erred when it concluded as a matter of
law that (n)orth Harris County (Texas) is part of the United
States.
II.
Whether the trial court erred when it ruled that the trial court
has jurisdiction.
5
STATEMENT OF THE CASE AND FACTS
This case is an alleged Federal debt collection proceeding whose subject
matter is alleged income tax liability, and an action to foreclose on alleged federal
tax liens recorded by claimant United States against real property owned by
Trowbridge and arising from alleged unpaid federal income taxes, penalties, and
interest assessed against Trowbridge by the Internal Revenue Service for tax years
1993–1997 totaling (as of September 1, 2013) $3,286,335.47. (ROA.1–2).
This Appeal concerns not the history of events associated with the above
allegations but rather the basis thereof: the meaning of the law as provided in the
Constitution versus that in Titles 26 and 28 U.S.C., and that the provisions of the
latter, upon which Plaintiff and trial court rely to prosecute and hear this matter, do
not obtain against Trowbridge or Trowbridge’s property. The ROA is devoid of
competent evidence of jurisdiction.
The one and only material fact in the record of this case relevant to the
Issues is that Trowbridge resides in Harris County, Texas. (ROA.153, 181).
Trowbridge offers on February 4, 2014, to discharge in full the federal tax
liability alleged in the Complaint upon Plaintiff’s production of tangible, relevant
evidence that Trowbridge is a citizen or resident of the United States. (ROA.59).
To this offer Plaintiff stands mute. (ROA.101–102). Trowbridge on March 19,
2014, moves the trial court to dismiss for lack of subject-matter jurisdiction based
6
on no evidence that Trowbridge is a citizen or resident of the United States.
(ROA.107–112). Said motion remains unresolved for the next 43 days.
Plaintiff on April 4, 2014, files a motion for summary judgment. Said
motion is devoid of evidence of jurisdiction, but cites the material fact that
Trowbridge resides in Harris County, Texas. (ROA.114–120).
Trowbridge files on April 29, 2014, an amended opposition to Plaintiff’s
April 4, 2014, motion, and amended motion to dismiss for lack of subject-matter
jurisdiction, attaching thereto competent evidence in support thereof and a
memorandum documenting, evincing, or proving (1) the jurisdictional provisions
of the Constitution, (2) factors that determine residence, domicil, and legal
residence, (3) systemic congressional legislative fraud dating to June 30, 1864,
continuing to the present day, and constituting proof that Harris County, Texas, is
not part of the United States nor Trowbridge a resident of the United States, and
(4) that the jurisdiction of the trial court extends only to sections of territory
occupied by a Federal corporation and that Trowbridge does not reside within the
jurisdiction of the trial court. (ROA.291–336).
Upon Trowbridge’s May 1, 2014, request for a ruling on Trowbridge’s
March 19, 2014, motion to dismiss, the trial court on May 2, 2014, denies said
motion. (ROA.347).
7
Trowbridge on May 6, 2014, moves the trial court to dismiss the Complaint
of the Plaintiff for lack of subject-matter jurisdiction. (ROA.348–357).
Trowbridge on May 7, 2014, objects to the prosecution of the instant cause
in a name other than the real party in interest and moves the trial court to dismiss
the Complaint of the Plaintiff for failure to do so, FED. R. CIV. P. 17(a)(3),
conditioned, however, upon the real party in interest’s failure to ratify, join, or be
substituted into the action. (ROA.360–365).
On May 8, 2014, Trowbridge requests of the trial court an explanation as to
the reason for denial of Trowbridge’s March 19, 2014, motion to dismiss for lack
of subject-matter jurisdiction. (ROA.372).
The trial court, on May 13, 2014, in “Second Order Denying Dismissal”
denies Trowbridge’s May 6 and 7, 2014, motions, and May 8, 2014, request for
explanation, and rules “This court has jurisdiction.1“ and “1 28 U.S.C. § 1340
(2012).” (ROA.380).
Trowbridge on May 15, 2014, files three separate instruments:
ï‚· Formal challenge of Plaintiff’s allegation that Trowbridge resides
within the jurisdiction of the trial court. (ROA.382).
ï‚· Notice of Trowbridge’s exclusive reliance upon the meaning of
“United States” as defined by Congress in Title 26 U.S.C. and Title 28
U.S.C. Chapter 176. (ROA.384).
8
ï‚· A second offer to discharge in full the alleged tax liability upon
Plaintiff’s production of evidence that shows that Trowbridge is a
citizen or resident of the United States. (ROA.386).
Plaintiff on May 16, 2014, files an opposition to Trowbridge’s May 15,
2014, challenge, explaining that pursuant to 28 U.S.C. § 124(b), Trowbridge
resides, and the property the United States seeks to foreclose is situate, within the
jurisdiction of the trial court—but is devoid of evidence that either of the cited
cities (Humble or Porter, Texas) or counties (Harris or Montgomery County,
Texas) or Texas is situate within the United States, as determined by the
controlling definition of that term in matters relating to internal revenue, 26 U.S.C.
§ 7701(a)(9), or Federal debt collection procedure, 28 U.S.C. § 3002(15).
(ROA.388–389).
Trowbridge on May 20, 2014, files an objection to the trial court’s exclusive
reliance on a statute, 28 U.S.C. § 1340, as ultimate determinant of jurisdiction over
Trowbridge’s property, as opposed to competent evidence that Trowbridge resides
in a geographical area over which the trial court has jurisdiction. (ROA.391–400).
Trowbridge also files on May 20, 2014, an objection to denial of due process
of law in respect of the trial court’s declination to dismiss for lack of subjectmatter jurisdiction the Complaint of the Plaintiff for failure to produce evidence
9
thereof despite the burden to do so and multiple challenges1 thereof by
Trowbridge. (ROA. 402–409). Said filing distinguishes between the two species
of lower non-appeals inferior court (and the exclusive geographical area over
which each exercises its own type of jurisdiction): judicial Article III constitutional
courts, called “District Courts of the United States”; and legislative Article IV
territorial courts, called “United States District Courts.”
The trial court, on May 21, 2014, states during a hearing “But I conclude as
a matter of law that North [sic2] Harris County [Texas] is part of the United
States,” thereby, evidently, inferring that Trowbridge, who resides in north Harris
County, Texas, is a resident of the United States and therefore of the subject, and
Trowbridge’s property of the object, of Title 26 U.S.C. (ROA.535).
The trial court on May 23, 2014, in “Amended Final Judgment,” awards to
Plaintiff (1) $3,326,015.01 of Trowbridge’s property, plus statutory additions
accruing after April 7, 2014, (2) authorizes Plaintiff to foreclose the subject liens,
and (3) awards to Plaintiff all right, title, and interest in, and right to possession of,
said real property. (ROA.413). The trial court issues, also on May 23, “Order of
Sale and Vacature,” setting the parameters therefor. (ROA.414–417).
1
ROA.56–62; 107–112; 291–336; 348–357; 382.
Whereas, there is no person by the name “North Harris County,” “North” appears to be
an error on the part of the Official Court Reporter and should be spelled with a lower-case “n.”
10
2
SUMMARY OF THE ARGUMENT
The Constitution provides for two species of legislative power in two
mutually exclusive geographical areas: (1) limited within the Union, in Article 1 §
8 (1–16), and (2) plenary without, in territory identified in Articles 1 § 8(17) and 4
§ 3(2).
As of June 30, 1864, and June 25, 1948, respectively, Congress confound the
order of things in the American Republic by giving (1) the bodies politic residing
within the latter geographical areas the same name used to describe those residing
within the former, and (2) the courts of the former the same name as those of the
latter.
The Argument provides legal evidence of the foregoing and examines
pertinent parts of the legislation incorporating the Government of the District of
Columbia; the Social Security Act of August 14, 1935; Title 42 U.S.C. Chapter 7
Social Security; Title 26 U.S.C.; Title 4 U.S.C. Chapter 4 The States; and Title 28
U.S.C.
Basic rules of statutory construction, of which the American People
generally are ignorant,3 are recited as well.
3
Every legislature in the United States has codified canons—interpretive “rules of
thumb”—to guide statutory interpretation, but these codifications have received virtually
no attention in the academy. Jacob Scott, “Codified Canons and the Common Law of
Interpretation,” The Georgetown Law Journal, Vol. 98, Issue 2, January 2010, 341.
11
The Argument shows that Title 26 U.S.C. and Title 28 U.S.C. Chapter 176
are not national but municipal legislation of the District of Columbia municipal
corporation, and provides two simple rules that allow anyone to identify municipal
legislation cursorily.
Trowbridge neither resides in nor is domiciled in nor a legal resident of the
District of Columbia, defined by Congress (1) in a political sense as a “state” /
“State” or the “United States,” and (2) in a geographical sense (along with certain
of the Territories, depending on the particular title) as part of the “United States,”
and is entitled to, among other things, reversal and dismissal as a matter of law for
clear absence of all jurisdiction.
The only material fact relevant to the Issues is that Trowbridge resides in
Harris County, Texas. The only competent evidence in the ROA relating to
jurisdiction evinces that Trowbridge’s fixed and permanent abode and situs of
earnings, domicil, and legal permanent residence is factually situate, animus
manendi, without the District of Columbia.
The within Argument proves with legal evidence that the trial court erred:
ï‚· When it concluded as a matter of law that (n)orth Harris County
(Texas) is part of the United States, i.e., Issue I. (ROA.535).
ï‚· When it ruled it has jurisdiction, i.e., Issue II. (ROA.380).
12
ARGUMENT
I.
The trial court erred when it concluded as a matter of law that
(n)orth Harris County (Texas) is part of the United States.
CITIZENS OR RESIDENTS OF THE UNITED STATES LIABLE TO INCOME TAX
Title 26 C.F.R. § 1.1-1(a)(1), provides, in pertinent part,
Section 1 of the Code imposes an income tax on the income of every
individual who is a citizen or resident of the United States and, to the
extent provided by section 871(b) or 877(b), on the income of a
nonresident alien individual. . . .”
The foundation of this case is Plaintiff’s presumption that Trowbridge is of
one of the species of individual4 enumerated above and therefore obligated to
discharge the federal tax liability alleged in the Complaint.
Whereas, the record is devoid of material fact or dispositive evidence as to
Trowbridge’s citizenship, the only factor determinative of Trowbridge’s liability to
income tax and the United States’ right to Trowbridge’s property, is whether
Trowbridge is a resident of the geographical United States, a Title 26 U.S.C. term
of art with a limited and specific meaning. The only material jurisdictional fact is
that Trowbridge resides in Harris County, Texas. (ROA.153, 181).
A CURIOUS CHOICE
Following receipt of Summons and Complaint, Trowbridge offers to
discharge in full the income tax liability alleged therein upon Plaintiff’s production
4
the term “individual” means a citizen of the United States or an alien lawfully admitted
for permanent residence . . . 5 U.S.C. § 552a(a)(2).
13
of evidence that Trowbridge is a citizen or resident of the United States. (ROA.59,
88). To this offer Plaintiff stands mute. (ROA.101–102).
The mystery as to why Plaintiff would decline Trowbridge’s offer to settle
things at the outset via performance of such a seemingly simple task, and rather opt
for four months of pre-trial motions and filings, is solved herein.
JURISDICTIONAL PROVISIONS OF THE CONSTITUTION
That certain Constitution, ordained, established, and implemented March 4,
1789, Independence Hall, Philadelphia, Pennsylvania (the “Constitution”),
provides that Congress shall have two species of legislative power in mutually
exclusive geographical areas: limited within the Union (Article 1 § 8(1–16)), and
plenary without (Articles 1 § 8(17) and 4 § 3(2)). (ROA.293–296).
The Supreme Court affirms these facts a few years later; to wit:
It is clear that Congress, as a legislative body, exercise two species of
legislative power: the one, limited as to its objects, but extending all
over the Union: the other, an absolute, exclusive legislative power
over the District of Columbia. Cohens v. Virginia, 19 U.S. 264, 434,
6 Wheat. 265, 5 L.Ed. 257 (1821).
Consulting any news source today, however, it is clear that Congress now
exercise personal legislative power—and officers of the Department of Justice and
United States District Judges, personal jurisdiction—over not only the tiny
percentage of Americans residing in Federal territory, but the rest of the American
population residing throughout the Union as well.
14
For example: The advertized constitutional authority to impose an income
tax is Article 1 § 8(1), which provides, in pertinent part, “The Congress shall have
Power To lay and collect Taxes, Duties, Imposts and Excises . . .”—but every
income taxpayer is susceptible to a criminal charge for a crime against the revenue
laws, 26 U.S.C. §§ 7201–7241, and the levying, prosecution, and trying of such a
charge, which happens on a routine basis, almost exclusively to Americans
residing without geographical area described in Articles 1 § 8(17) and 4 § 3(2) of
the Constitution, requires personal jurisdiction.
If we are to believe that all Department of Justice personnel and United
States District Judges today maintain fidelity to their oath of office and the
jurisdictional provisions of the Constitution when they indict, charge, arrest,
prosecute, try, convict, and sentence to prison for crimes against the revenue laws,
or acquit thereof, ordinary Americans whose fixed and permanent abode, source of
earnings, domicil, and legal permanent residence is factually situate, animus
manendi, without every section of territory occupied by the District of Columbia,
we must look deeper for the actual constitutional authority upon which said
officers rely to exercise personal jurisdiction over such Americans—and subjectmatter jurisdiction over the property of other Americans similarly situated and
domiciled but not so charged.
15
TWO DIFFERENT GOVERNMENTS, TWO DIFFERENT LEGISLATURES
The difference between the American governmental paradigm and all others
is that sovereignty resides in the People, and Congress have no personal legislative
power over them, except as such may choose to establish residence, domicil, or
legal residence in territory described in Article 1 § 8(17) or 4 § 3(2) of the
Constitution.
Upon implementation of the Constitution March 4, 1789, there is only one
legislature in the District of Columbia: that provided in Article I thereof.
When Congress create and incorporate the Government of the District of
Columbia February 21, 1871, however, they also create for themselves and assume
the role of a second legislature, that of the District of Columbia municipal
corporation; to wit, in pertinent part:
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That all that part of
the territory of the United States included within the limits of the
District of Columbia be, and the same is hereby, created into a
government by the name of the District of Columbia, by which name
it is hereby constituted a body corporate for municipal purposes, and
may contract and be contracted with, sue and be sued, plea and be
impleaded, have a seal, and exercise all other powers of a municipal
corporation not inconsistent with the Constitution and laws of the
United States and the provisions of this act.
. . . SEC. 18. And be it further enacted, That the legislative power of
the District shall extend to all rightful subjects of legislation within
said District . . . and nothing herein shall be construed to deprive
16
Congress of the power of legislation over said District in as ample
manner as if this law had not been enacted.5 (ROA.312).
The national legislature exercises limited legislative power throughout the
Union in what the Framers identify in the Constitution as the “States” and “United
States”; the municipal legislature, plenary legislative power in geographical areas
identified in Articles 1 § 8(17) and 4 § 3(2) of that instrument.
STATES VERSUS COLUMBIA AND THE TERRITORIES
The Supreme Court explains the constitutional difference between, on the
one hand, the states of the Union and, on the other, Columbia and the Territories:
On the part of the plaintiffs, it has been urged that Columbia is a
distinct political society, and is therefore “a state” according to the
definitions of writers on general law.
This is true. But as the act of Congress obviously uses the word
“state” in reference to the term as used in the Constitution, it becomes
necessary to inquire whether Columbia is a state in the sense of that
instrument. The result of that examination is a conviction that the
members of the American confederacy only are the states
contemplated in the Constitution.
. . . These clauses show that the word “state” is used in the
Constitution as designating a member of the union, and excludes from
the term the signification attached to it by writers on the law of
nations. Hepburn & Dundas v. Ellzey, 6 U.S. 445, 452, 2 Cranch 445,
2 L.Ed. 332 (1805). (ROA.302–304).
5
“An Act to provide a Government for the District of Columbia,” ch. 62, 16 Stat. 419,
February 21, 1871; later legislated in “An Act Providing a Permanent Form of Government for
the District of Columbia,” ch. 180, sec. 1, 20 Stat. 102, June 11, 1878, to remain and continue as
a municipal corporation (brought forward from the Act of 1871, as provided in the Act of March
2, 1877, amended and approved March 9, 1878, Revised Statutes of the United States Relating to
the District of Columbia . . . 1873–’74 (in force as of December 1, 1873), sec. 2, p. 2); as
amended by the Act of June 28, 1935, 49 Stat. 430, ch. 332, sec. 1 (Title 1, Section 102, District
of Columbia Code (1940)).
17
It has been attempted to distinguish a Territory from the district of
Columbia; but the court is of opinion, that this distinction cannot be
maintained. They may differ in many respects, but neither of them is a
state, in the sense in which that term is used in the constitution. New
Orleans v. Winter, 1 Wheat. (U. S.) 91, 4 L. Ed. 44 (1816).
(ROA.304–305).
Residents of the District of Columbia or one of the Territories are subject to
the personal legislative power of Congress. The respective bodies politic residing
in sections of territory occupied by the several commonwealths of the Union are
not; enjoying rather the unalienable and constitutional Right of Liberty under the
common law, free of subjection to the will of any other, such as their servants in
Congress; to wit:
The same feudal ideas run through all their jurisprudence, and
constantly remind us of the distinction between the Prince and the
subject. No such ideas obtain here; at the Revolution, the sovereignty
devolved on the people, and they are truly the sovereigns of the
country, but they are sovereigns without subjects . . . and have none to
govern but themselves; the citizens of America are equal as fellow
citizens, and as joint tenants in the sovereignty. Chisholm v. Georgia,
2 U.S. 2 Dall. 419, 472 (1793). (ROA.294).
THE UNALIENABLE AND CONSTITUTIONAL RIGHT OF LIBERTY
Mr. President, the contest, for ages, has been to rescue Liberty from
the grasp of executive power. Whoever has engaged in her sacred
cause, from the days of the downfall of those great aristocracies which
had stood between the king and the people to the time of our own
independence, has struggled for the accomplishment of that single
object. Daniel Webster (1782–1852), from “The Presidential Protest,”
a speech delivered in the U.S. Senate, May 7, 1834, The Works of
Daniel Webster, vol. 4, 18th ed. (Little, Brown & Co.: Boston, 1881),
133.
18
[T]he policies of the monarch are always those of his creditors. Rep.
John R. Rarick, “Deficit Financing,” Congressional Record (House of
Representatives), 92nd Cong., 1st Sess., Vol. 117—Part 1, February 1,
1971, 1261.
LEGISLATIVE ALCHEMY
Once upon a time, in a faraway land . . .
“How to snatch from the sovereign American People their Liberty and
place them under the discretionary power of the Executive that we
control?” says one Bank of England goldsmith-banker to the other.
“Change the legal meaning of the word they use for their sovereign
political bodies, ‘state,’ to mean the one over whom our hirelings in
Congress have absolute control, the District of Columbia,” says the
other in response, “but do it during wartime (in an internal war that we
create) so no one will notice. Thereafter, when they see that particular
word in a legislative act, they will think it means the one thing, when
‘legally’ it means the other (as defined by us), and we can impose our
will on them, through our servants on Capitol Hill—and get away
with it because of the American People’s foolish trusting nature.”
“The subject matter of the first legislative act to which we attach it
should have broad public support, such as ‘civil rights for slaves’ or
‘freeing the slaves,’ so there is no real resistance,” says the first. “We
can ‘free the slaves’ from involuntary servitude and at the same time
subject everyone—including the slaves—to voluntary servitude based
on their erroneous belief that the legislation attaches to their particular
sovereign ‘State’ and the ‘United States’ and citizens of the ‘United
States,’ all of which, of course, shall mean the District of Columbia.”
“Not everyone will buy it; we need to get them all to enter into a
binding contract without knowing it and from which there is no
apparent escape—and the contract should ‘rescue’ them from
something, so they are predisposed to agree to whatever we offer. To
begin with, why not flood the market with easy loans through the
banking monopoly we shall institute in the District of Columbia in
1913 and get people to borrow and invest in the stock market, because
‘Everybody knows the stock market is going up!’—it costs us nothing
19
to do so [6] and we can secure the loans with their land and property
and then crash the stock market, contract the availability of credit so
the economy dives into a depression, and foreclose and evict them
from their farms and homes and toss them out on the street, just like
we did in ancient Rome,” the second replies.
“Most excellent,” says the first. “Then we can pretend to save them
from potential financial destitution through what appears to be a
personal retirement program (for which they need to apply, of course)
but is actually a municipal franchise, with political rights and duties,
the right to receive (but not realize) retirement benefits, and the duty
to pay income tax (and token payroll taxes for the retirement of other
franchisees and administration of the program), which our puppets in
Congress enact under local powers of legislation of the corporate
District of Columbia—thereby providing a basis to presume that each
franchisee is domiciled in the District of Columbia, subject to
municipal rule, and liable to all municipal taxes (most importantly,
income tax). In this wise we can reverse the effects of that horrible
instrument they used to escape our policies in 1776, exploit the
defects we installed in their Constitution, and usurp their Liberty
without them even knowing what happened!” he says in conclusion.7
CONGRESS SET ABOUT TO USURP THE LIBERTY OF THE AMERICAN PEOPLE
As men whose intentions require no concealment generally employ
the words which most directly and aptly express the ideas they in tend
[sic] to convey, the enlightened patriots who framed our Constitution,
and the people who adopted it, must be understood to have employed
words in their natural sense, and to have intended what they have said.
Gibbons v. Ogden, 27 U.S. 1 (1824).
Quæ ad unum finem locuta sunt, non debent ad alium detorqueri.
Words spoken to one end, ought not to be perverted to another.
Bouvier’s Law Dictionary, Third Revision (Being the Eighth Edition),
by Francis Rawle (hereinafter “Bouvier’s 8th”), p. 2155. (ROA.308).
6
The Federal Reserve is a fount of credit, not of capital. New York Times, “Stabilizing
Money Rates,” Section 3, Editorial Section, January 18, 1920, 33.
7
Thomas Clark Nelson, Why the 14th Amendment is a political Trojan horse: And did
not make a “citizen of the United States” of anyone born in one of the Union states, including
slaves (Self-published: January 3, 2013), 43, http://goo.gl/27nvHn.
20
Notwithstanding the material opinions of the Supreme Court in Hepburn and
New Orleans, supra, pp. 17–18, and literally dozens of legal principles to the
contrary, Congress, “to provide internal revenue” and “increase the revenue,”
effectively turn the jurisdictional provisions of the Constitution on their head by
defining the proper nouns used therein to identify the bodies politic over whom
Congress have no personal legislative power (“state” / “State” and “United States”)
to mean the same thing as those over whom they have absolute personal legislative
power (the District of Columbia and the territories / Territories); to wit:
SEC. 182. And be it further enacted, That wherever the word state is
used in this act it shall be construed to include the territories and the
District of Columbia, where such construction is necessary to carry out
the provisions of this act. “An Act to provide Internal Revenue to
support the Government, to pay Interest on the Public Debt, and for
other Purposes,” Ch. 173, 13 Stat. 223, 306, June 30, 1864. (ROA.305).
TITLE XXXV.
INTERNAL REVENUE.
. . . SEC. 3140. The word “State,” when used in this Title, shall be
construed to include the Territories and the District of Columbia
where such construction is necessary to carry out its provisions.
Revised Statutes of the United States, Passed at the First Session of
the Forty-third Congress, 1873–’74, p. 601, approved retroactively as
of the Act of March 2, 1877, amended and approved as of the Act of
March 9, 1878. (ROA.307).
TITLE I.—INCOME TAX.
. . . SEC. 15. That the word “State” or “United States” when used in
this title shall be construed to include any Territory, the District of
Columbia, Porto Rico, and the Philippine Islands, when such
construction is necessary to carry out its provisions. “An Act To
increase the revenue, and for other purposes,” Ch. 463, 39 Stat. 756,
773, September 8, 1916. (ROA.310).
21
The primary sense of “state” and “State” as words / proper nouns found in
the dictionary is political; the secondary, governmental; the tertiary, geographical.
The greatest lexicographer in history, Noah Webster, makes no provision for
“state” / “State” in a geographical sense; to wit:
STATE, n. . . .
A political body, or body politic ; the whole body of people united
under one government, whatever may be the form of the government.
Municipal law is a rule of conduct prescribed by the supreme power in a state.
Blackstone.
More usually the word signifies a political body governed by
representatives ; a commonwealth ; as the States of Greece ; the
States of America.
In this sense, state has sometimes more immediate reference to the
government, sometimes to the people or community. Thus when we
say, the state has made provision for the paupers, the word has
reference to the government or legislature ; but when we say the state
is taxed to support paupers, the word refers to the whole people or
community. Webster’s Dictionary, 1828 ed., s.v. “State.”
STATE, n. A body politic, or society of men, united together for the
purpose of promoting their mutual safety and advantage, by the joint
efforts of their combined strength. Cooley, Const. Lim. 1.
One of the component commonwealths or states of the United
States of America.
The people of a state, in their collective capacity, considered as the
party wronged by a criminal deed ; the public ; as in the title of a
cause, “The State vs. A. B.”
The section of territory occupied by one of the United States.
Black’s Law Dictionary, 1st ed. (1890), p. 1119.
STATE (Lat. stare, to place, establish). A body politic, or society of
men, united together for the purpose of promoting their mutual safety
and advantage, by the joint efforts of their combined strength.
Cooley, Const. Lim. 1. A self-sufficient body of persons united
together in one community for the defence of their rights and to do
right and justice to foreigners. In this sense, the state means the whole
people united into one body politic ; and the state, and the people of
22
the state are equivalent expressions. Chisholm v. Georgia, 2 Dall. (U.
S.) 425, 1 L. Ed. 440 ; 2 Wilson, Lect. 120 ; 1 Story, Const., § 208.
So, frequently, are state and nation ; Texas v. White, 7 Wall. (U. S.)
720, 19 L. Ed. 227. . . .
The section of territory occupied by a state: as, the state of
Pennsylvania.
. . . One of the commonwealths which form the United States of
America. Bouvier’s 8th (1914), pp. 3120–3121.
FIRST OF TWO LEGISLATIVE STRATAGEMS
Congress devise a plan to devest the American People of the unalienable and
constitutional Right of Liberty, ensnare them in income tax, and bring them under
municipal rule by getting them to (1) believe that the words of the Constitution
authorize Congress to exercise personal legislative power over them, and (2)
establish what can be construed as domicil / legal residence in the District of
Columbia, thereby justifying exaction of income tax and fines (collection of
alleged Federal debt) from them as alleged taxpayers, tax cheats, and commercial
criminals—enforced, ultimately, if necessary, by legislative tribunal.
“Cujusque rei potissima pars principium est. The principal part of
everything is the beginning,” Bouvier’s 8th, p. 2130; and the first step of the initial
stratagem is the Revenue Act of June 30, 1864, supra, p. 21.
The manner in which Congress introduce the legislation that will evade and
defeat the jurisdictional provisions of the Constitution and shanghai politically, as
we shall see, the American People into “voluntary” servitude under municipal rule
portends how Congress will earn their reputation with Mark Twain, Will Rogers,
23
and H. L. Mencken and augurs why they remain today the most despised class in
America8—i.e., amidst the chaos of the Civil War, in one seemingly unremarkable
sentence on the 84th page of an 84-page statute, in the 182nd of 182 sections,
followed by silence thereafter—an M.O. which places them, according to
Blackstone, in the company of another certain municipal lawgiver, Caligula; to wit:
It [municipal law] is likewise “a rule prescribed.” Because a bare
resolution, confined in the breast of the legislator, without manifesting
itself by some external sign, can never be properly a law. It is
requisite that this resolution be notified to the people who are to obey
it. But the manner in which this notification is to be made, is matter
of very great indifference. It may be notified by universal tradition
and long practice, which supposes a previous publication, and is the
case of the common law of England. It may be notified, viva voce, by
officers appointed for that purpose, as is done with regard to
proclamations, and such acts of parliament as are appointed to be
publicly read in churches and other assemblies. It may lastly be
notified by writing, printing, and the like ; which is the general course
taken with all our acts of parliament. Yet, whatever way is made use
of, it is incumbent on the promulgators to do it in the most public and
perspicuous manner ; not like Caligula, who (according to Dio
Cassius) wrote his laws in a very small character, and hung them up
upon high pillars, the more effectually to ensnare the people. William
Blackstone, Commentaries on the Laws of England: Book the First, A
Reprint of the First Edition with Supplement (Dawsons of Pall Mall:
London, 1966), 45–46.
8
In the annals of image problems, the banking industry ranks right up there .... er, down
there ... in the company of Congress, with a high-profile survey ranking Bank of America
Corp. at the bottom of the heap.
Five years after the financial crisis, the Reputation Institute survey said banking has a
worse reputation than Big Pharma, news outlets, oil companies and telecommunications
firms -- though not so bad as Congress. . . . Los Angeles Times, “Survey: Banking
industry’s reputation is nearly as bad as that of Congress; BofA ranks last,” August 29,
2013, http://articles.latimes.com/2013/aug/28/business/la-fi-mo-banks-reputation20130828.
24
ACTUAL LEGISLATIVE FRAUD
The Congress as the instrumentality of sovereignty is endowed with
certain powers to be exerted on behalf of the people in the manner and
with the effect the Constitution ordains. The Congress cannot invoke
the sovereign power of the people to override their will as thus
declared. Perry v. United States, 294 U.S. 330, 353 (1935).
The congressional legislation that effectuates the aforesaid deceits operates
to override the will of the American People as declared in the Constitution through
(1) unilateral summary constructive revision of that instrument via legislative fiat
that operates to impute to certain words used therein a novel contrary meaning visà-vis that of March 4, 1789, and (2) production in the mind of American men and
women residing in the sections of territory occupied by the respective
commonwealths of the Union, the false impression that legislation that purports to
obtain against residents of a “state” / “State” or the “United States” (District of
Columbia or one of the territories / Territories), obtains against them personally,
and constitutes, minimally, actual legislative fraud under color of law and office.
(ROA.318).
IGNORANCE OF THE LAW EXCUSES NO ONE
“Ignorance of law consists of the want of knowledge of those laws
which it is our duty to understand, and which every man is presumed
to know,” Bouvier’s 8th, p. 1488.
Understanding the statutes enacted by Congress, however, is not possible
without application of the same rules of statutory construction and interpretation
that Congress and the Supreme Court use to legislate the law into existence and
25
pronounce it thereafter; e.g.: “It is presumable that Congress legislates with
knowledge of our basic rules of statutory construction . . .”, McNary v. Haitian
Refugee Center, Inc., 498 U.S. 479, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991).
CONSTRUCTION AND INTERPRETATION OF STATUTES
Linguistic inference canons provide guidelines about what the
legislature likely meant, given its choice of some words and not
others. The linguistic inference canons include classic logical canons
such as expressio unius,42 noscitur a sociis,43 and ejusdem generis.44
Other inferential rules encourage interpreters to follow the ordinary
usage of text unless the legislature has itself defined the word or the
phrase has acquired a technical meaning.45 Because dictionaries report
common usage, the dictionary rule supports consulting widely used
dictionary definitions of terms the legislature has not defined.46
[24. 3 NORMAN J. SINGER & J.D. SHAMBIE SINGER, STATUTES AND STATUTORY
CONSTRUCTION § 65A:13, at 797 (7th ed. 2008) [hereinafter SUTHERLAND].]
42. The inclusion of one thing indicates exclusion of others. See Tate v. Ogg,
195 S.E. 496, 499 (Va. 1938) (holding that where a statute applied to “‘any horse,
mule cattle, hog, sheep or goat,’” it did not apply to turkeys); 2A SUTHERLAND,
supra note 24, § 47:23, at 404 (7th ed. 2007) (stating that where a list of things is
designated, “all omissions should be understood as exclusions”).
43. Literally, “it is known from its associates,” but more usefully described as
outlining the inference that ambiguous words may be illuminated by the words
grouped with it in a statute. 2A SUTHERLAND, supra note 24, § 47:16 (7th ed.
2007); see Jarecki v. G.D. Searle & Co., 367 U.S. 303, 305–07 (1961) (given the
word string “‘resulting from exploration, discovery, or prospecting,’” the Court
construed “discovery” to mean only discovery of mineral resources and to not
include scientific discoveries).
44. Meaning “of the same kind” and the touchstone for inferences that
particular words implicitly establish a class of objects and that provision applies
to that class. 2A SUTHERLAND, supra note 24, § 47:17 (7th ed. 2007); see
Heathman v. Giles, 374 P.2d 839, 839–40 (Utah 1962) (given the word string
“‘any sheriff, constable, peace officer, state road officer, or any other person
charged with the duty of enforcement of the criminal laws of this state,’” the court
held that prosecutors were not “‘other person[s] charged with the duty of
enforcement of the criminal laws’” because “other person[s]” is limited by the
class described in the initial word string).
45. See MCI Telecomms. Corp. v. AT&T, 512 U.S. 218, 228 (1994) (using
ordinary usage canon to hold that the Federal Communication Commission’s
authority to “modify” tariff requirements does not allow it to waive tariffs because
26
“‘[m]odify,’ in [the Court’s] view, connotes moderate change” and stating that
“[i]t might be good English to say that the French Revolution ‘modified’ the
status of the French nobility—but only because there is a figure of speech called
understatement and a literary device known as sarcasm”).
46. See Muscarello v. United States, 524 U.S. 125, 128 (1998) (consulting the
Oxford English Dictionary, Webster’s Third New International Dictionary, and
Random House Dictionary of the English Language Unabridged for the meaning
of the word “carry”); 2A SUTHERLAND, supra note 24, § 46:2, at 162–64 (7th ed.
2007).9
THE SUPREME COURT ON STATUTORY CONSTRUCTION
Deliberate congressional transmutation of the words / proper nouns “State”
and “United States” into terms of art with a limited and specific meaning, however
absurd in respect of the Constitution, nevertheless constitutes a clearly expressed
legislative intention that the ordinary meaning, as found in the dictionary, is
extrinsic to construction / interpretation of the language of any statute in which
they appear, and that the statutory definition and meaning thereof obtains
exclusively; to wit:
As in all cases involving statutory construction, “our starting point
must be the language employed by Congress,” Reiter v. Sonotone
Corp., 442 U.S. 330, 337, 99 S.Ct. 2326, 2330, 60 L.Ed.2d 931
(1979), and we assume “that the legislative purpose is expressed by
the ordinary meaning of the words used.” Richards v. United States,
369 U.S. 1, 9, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1962). Thus
“[a]bsent a clearly expressed legislative intention to the contrary, that
language must ordinarily be regarded as conclusive.” Consumer
Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100
S.Ct. 2051, 2055, 64 L.Ed.2d 766 (1980). . . . American Tobacco
Company v. John Patterson, No. 80-1199, 456 U.S. 63, 102 S.Ct.
1534, 71 L.Ed.2d 748 (1982). (ROA.323).
9
Jacob Scott, “Codified Canons and the Common Law of Interpretation,” The
Georgetown Law Journal, Vol. 98, Issue 2, January 2010, 352–353.]
27
JUNE 30, 1864, MEANING OF THE TERM OF ART “STATE”
The words of a statute are to be taken in their ordinary and popular
meaning, unless they are technical terms or words of art, in which
case they are to be understood in their technical sense. . . . Henry
Campbell Black, Handbook on the Construction and Interpretation of
the Laws (St. Paul, Minn.: West Publishing Co., 1896), § 57, 128.
(ROA.308).
Table 1. Linguistic Inference Canons . . .
Ordinary usage: Follow ordinary usage of terms, unless the legislature
gives them a specified or technical meaning.
Dictionary definition: Follow dictionary definitions of terms, unless
the legislature has provided a specific definition. Jacob Scott,
“Codified Canons and the Common Law of Interpretation,” The
Georgetown Law Journal, Vol. 98, Issue 2, January 2010, 357.
Because Congress transform by statute the word “state” into a technical term
/ term of art, in matters of internal revenue no one may take it in any other than its
technical sense.
The rule expressio unius est exclusio alterius (supra, p. 26, SCOTT n. 42),
applies in this instance and is defined elsewhere, as well; to wit, in pertinent part:
§ 47:23 Expressio unius est exclusio alterius
As the maxim is applied to statutory interpretation, where . . . the
persons or things to which it refers are designated, there is an
inference that all omissions should be understood as exclusions. The
maxim does not apply to every statutory listing or grouping. It has
force only when the items expressed are members of an associated
group or series, justifying the inference that the items not mentioned
were excluded by deliberate choice. [Extensive footnoting of cases
omitted.] Norman J. Singer and J.D. Shambie Singer, Statutes and
Statutory Construction, 7th ed., 2007 new ed., vol. 2A, Thomson –
West, 398–412. (ROA.306).
28
Expressio unius est exclusio alterius. The expression of one thing is
the exclusion of another. Co. Litt. 210 ; Broom, Max. 607, 651 . . .
36 Fed. 880 ; 104 U. S. 25, 26 L. Ed. 637. It is a rule of construction.
222 U. S. 513, 32 Sup. Ct. 117, 56 L. Ed. 291. Bouvier’s 8th, p. 2134,
(ROA.313).
The rule expressio unius est exclusio alterius (the inclusion of the one
is the exclusion of the other): when a list of specific items is not
followed by general words it is to be taken as exhaustive. For
example, “weekends and public holidays” excludes ordinary
weekdays. A Dictionary of Law, 7th ed., Jonathan Law and Elizabeth
Martin, eds. (Oxford University Press: Oxford, 2009), 295.
(ROA.302).
Application of expressio unius est exclusio alterius to Sec. 182 of the
Revenue Act of June 30, 1864, supra, p. 21, reveals: The states as of that date are
the bodies politic of the District of Columbia, Arizona Territory, Colorado
Territory, Dakota Territory, Indian (Oklahoma) Territory, Montana Territory,
Nebraska Territory, Nevada Territory, New Mexico Territory, Utah Territory, and
Washington Territory and no other. (ROA.306). Congress exclude by deliberate
choice from the meaning of said definition the bodies politic of the 36 members of
the Union.
MEANING OF “STATE” IN THE REVISED STATUTES OF 1873–’74
Application of the same rule to the definition of “State” in the Revised
Statutes of 1873–’74, supra, p. 21, reveals that: For purposes of internal revenue,
“State” means the body politic of the District of Columbia, Alaska Territory,
Arizona Territory, Dakota Territory, Indian (Oklahoma) Territory, Midway Atoll
29
Territory, Montana Territory, Nevada Territory, New Mexico Territory, Utah
Territory, or Washington Territory and no other. (ROA.307).
MEANING OF “UNITED STATES” IN THE REVENUE ACT OF SEPTEMBER 8, 1916
The Revenue Act of September 8, 1916, supra, p. 21, is the first appearance
of “United States” as a technical term / term of art per se. Application of expressio
unius est exclusio alterius shows that the full extent of the meaning of the
definition provided in Sec. 15 thereof is the body politic of the District of
Columbia and the Territories of Alaska, Hawaii, American Samoa, Guam, Midway
Islands, and the Panama Canal Zone and no other. (ROA.310).
SOCIAL SECURITY ACT OF AUGUST 14, 1935
The Social Security Act of August 14, 1935 (the “Social Security Act”),
provides, in pertinent part:
SECTION 1101.
(a) When used in this Act(1) The term State (except when used in section 531) includes
Alaska, Hawaii, and the District of Columbia.
(2) The term United States when used in a geographical sense
means the States, Alaska, Hawaii, and the District of Columbia.
. . . (b) The terms includes and including when used in a definition
contained in this Act shall not be deemed to exclude other things
otherwise within the meaning of the term defined. (ROA.312)
To identify the geographical “United States” of the Social Security Act, we
must first ascertain the meaning of the term “State,” which uses within its
provisions another term: “includes.”
30
“INCLUDES AND INCLUDING”
Any controversy as to whether “includes” or “including” is a term of
enlargement or one of limitation dissolves upon close inspection. The above
definition of said terms is a hybrid composite of two of the principal rules of
statutory construction and interpretation, expressio unius est exclusio alterius and
ejusdem generis, discussed supra, p. 26, SCOTT n. 44, and defined, in pertinent
part, as follows:
EJUSDEM GENERIS (Lat.). Of the same kind.
In the construction of laws, wills, and other instruments, general
words following an enumeration of specific things are usually
restricted to things of the same kind (ejusdem generis) as those
specifically enumerated. . . . Bouvier’s 8th, p. 979. (ROA.313).
The rule ejusdem generis (of the same kind): when a list of specific
items belonging to the same class is followed by general words (as in
“cats, dogs, and other animals”), the general words are to be treated as
confined to other items of the same class (in this example, to other
domestic animals). A Dictionary of Law, 7th ed., Jonathan Law and
Elizabeth Martin, eds. (Oxford University Press: Oxford, 2009), 295.
(ROA.302).
Use of “includes” or “including” in the definition of any Social Security Act
term signifies that such definition is at once expansionary and exclusionary:
expansionary in that it comprehends other things not listed in the definition;
exclusionary in that such other things are confined / limited to those of the same
kind or class as those specifically enumerated.
31
Congress state this concept succinctly in pertinent part of 27 C.F.R. § 72.11:
“The terms ‘includes’ and ‘including’ do not exclude things not enumerated which
are in the same general class.”
Application of the meaning of the definition of “includes” to the Social
Security Act-term “State” shows that on August 14, 1935, the “States” are the
bodies politic of the District of Columbia and Territories of Alaska, Hawaii, Puerto
Rico, and the Virgin Islands and no other. (ROA.312–315).
POLITICAL / GOVERNMENTAL SENSE VERSUS GEOGRAPHICAL
Whereas, Congress expressly define the Social Security Act-term “United
States” in a geographical sense, but not so with “State,” it is clear that Congress do
not intend “State” in a geographical sense; to wit:
“Where Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.” United States v. Wong Kim Bo, 472
F.2d 720, 722 (CA5 1972). See United States v. Wooten, 688 F.2d
941, 950 (CA4 1982). Russello v. United States, 464 U.S. 16, 23, 104
S.Ct. 296, 300, 78 L.Ed.2d 17 (1983).
Members of the five aforesaid “States” are citizens of the United States, i.e.,
citizens of the Federal government,10 a.k.a. District of Columbia municipal
corporation, supra, pp. 16–17, over whom the Constitution authorizes Congress to
exercise personal legislation. (ROA.312–315).
10
A citizen of the United States is a citizen of the Federal government . . . Kitchens v.
Steele, 112 F.Supp. 383, Dist. Court W.D. Missouri (1953).
32
The Social Security Act-geographical “United States” is the collective of the
respective sections of territory occupied by the five aforesaid bodies politic
(“States” / Territories).
NOVEL DEFINITIONS OF “STATE,” “UNITED STATES” COMPREHEND ONLY
THE DISTRICT OF COLUMBIA AND THE TERRITORIES
No preceding definition of “state,” “State,” or “United States” in this
Argument comprehends any political society residing in any section of territory
occupied by any commonwealth united by and under authority of the Constitution
and admitted into the Union. Acts of Congress using the above terms obtain only
against bodies politic over whom Congress have power of personal legislation, i.e.,
the District of Columbia and the territory and property identified in Articles 1 §
8(17) and 4 § 3(2) of the Constitution, and therefore are not national but municipal
legislation.
AMERICANS APPEAR TO WAIVE THE CONSTITUTIONAL RIGHT OF LIBERTY
UPON ACQUIRING THE RIGHT TO RECEIVE SOCIAL SECURITY BENEFITS
Title 5 U.S.C. - GOVERNMENT ORGANIZATION AND
EMPLOYEES
. . . § 552a - Records maintained on individuals
(a) Definitions.— For purposes of this section—
. . . (2) the term “individual” means a citizen of the United States or
an alien lawfully admitted for permanent residence;
. . . (13) the term “Federal personnel” means officers and
employees of the Government of the United States, members of the
uniformed services (including members of the Reserve Components),
individuals entitled to receive immediate or deferred retirement
benefits under any retirement program of the Government of the
United States (including survivor benefits).
33
The doctrine that a government, state or federal, may not grant a
benefit or privilege on conditions requiring the recipient to relinquish
his constitutional rights is now well established. [Citations omitted.]
Jones v. State Board of Education of and for the State of Tennessee,
397 U.S. 31, 90 S.Ct. 779, 25 L.Ed.2d 27 (1970).
Waivers of constitutional rights not only must be voluntary but must be
knowing, intelligent acts done with sufficient awareness of the relevant
circumstances and likely consequences. Brady v. United States, 397
U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). (ROA.319).
Date-coincident with the Great Depression,11 American non-citizen nonresidents of the United States are induced to apply for and enroll in Social Security,
a program administered by an instrumentality of the District of Columbia
municipal corporation offering potential benefits for which they are not legally
eligible by reason of foreign residence, domicil, and legal residence; and thereafter
appear to execute and enter into a species of conditional / executory contract
(though not under seal) known as an assessment contract,12 and:
1.
Waive their Right of Liberty (Constitution, Preamble).
2.
Volunteer to pay a municipal tax (income tax) for which, other than
by way of mistake as a consequence of fraud, they have no duty to pay; to wit:
Social Security Act of August 14, 1935.
. . . TITLE VIII . . .
11
The Depression was the triggering event that finally persuaded Americans to adopt a
social insurance system. Larry DeWitt, “The Development of Social Security in
America,” Social Security Bulletin, Vol. 70 No. 3, 2010, U.S. Social Security
Administration, www.ssa.gov/policy/docs/ssb/v70n3/v70n3p1.html.
12
—assessment contract. One wherein the payment of the benefit is in any manner or
degree dependent on the collection of an assessment levied on persons holding similar
contracts. Black’s Law Dictionary, 2nd ed., p. 95.
34
INCOME TAX ON EMPLOYEES
SECTION 801. In addition to other taxes, there shall be levied,
collected, and paid upon the income of every individual a tax . . .
. . . TITLE XI . . .
DEFINITIONS
SECTION 1101.
(a) When used in this Act. . . (6) The term employee includes an officer of a [District of
Columbia municipal] corporation.
3.
Establish a relation with the corporate District of Columbia that can
be used to justify a presumption that they are employees / officers thereof and
therefore residents, for certain legal purposes such as taxation, of the District of
Columbia, and “rightful subjects of legislation within said District,” as originally
contemplated in Section 18 of the Act of February 21, 1871, supra, pp. 16–17, no
matter where in the world they may live, work, or travel—an unconscionable
bargain. (ROA.315–322).
MODERN SOCIAL SECURITY TERMS “STATE,” “UNITED STATES”
Title 42 U.S.C. Chapter 7 Social Security § 1301 Definitions provides, in
pertinent part:
(a) When used in this chapter—
(1) The term “State”, except where otherwise provided, includes the
District of Columbia and the Commonwealth of Puerto Rico . . .
Virgin Islands and Guam. . . . American Samoa, the Northern Mariana
Islands, and the Trust Territory of the Pacific Islands. . . .
(2) The term “United States” when used in a geographical sense
means, except where otherwise provided, the States.
. . . (b) The terms “includes” and “including” when used in a
definition contained in this chapter shall not be deemed to exclude
other things otherwise within the meaning of the term defined.
35
The definition in 42 U.S.C. § 1301(b) is substantially the same as that of §
1101(b) of the Social Security Act and means exactly the same thing. Applying
the meaning of the Title 42 U.S.C. term “includes” to the 42 U.S.C. § 1301(a)(1)
definition of “State” reveals that the bodies politic are the District of Columbia,
Guam, American Samoa, the Commonwealth of Puerto Rico, the Virgin Islands,
and the Commonwealth of the Northern Mariana Islands and no other.13
(ROA.316).
Wherefore, the Title 42 U.S.C. Chapter 7-geographical United States is the
collective of the respective sections of territory occupied by the six aforesaid
bodies politic.
CONTROLLING DEFINITION OF “UNITED STATES” IN TITLE 26 U.S.C.
The nexus between Social Security and the Internal Revenue Code is Sec.
801 of the original Social Security Act (“Income Tax on Employees,” supra, p. 35)
and 26 U.S.C. § 6109(d) Use of social security account number.
Title 26 U.S.C. § 7701(a)(9) United States is the controlling definition of
that term and comprehends the respective sections of territory occupied by the
bodies politic (“States”) of the District of Columbia, Commonwealth of Puerto
Rico, Virgin Islands, Guam, American Samoa, and Commonwealth of the
Northern Mariana Islands and no other. (ROA.324–326).
13
The Trust Territory of the Pacific Islands ceases to exist in any degree as of May 25,
1994, when the United Nations ends the trusteeship for the last district thereof, the Palau district.
36
“THE STATES” OF THE UNITED STATES CODE
Title 4 U.S.C. Chapter 4 The States provides, in pertinent part:
§ 106 - Same; income tax
(a) No person shall be relieved from liability for any income tax
levied by any State, or by any duly constituted taxing authority
therein, having jurisdiction to levy such a tax, by reason of his
residing within a Federal area or receiving income from transactions
occurring or services performed in such area; and such State or taxing
authority shall have full jurisdiction and power to levy and collect
such tax in any Federal area within such State to the same extent and
with the same effect as though such area was not a Federal area. . . .
§ 110 - Same; definitions
As used in sections 105–109 of this title—
. . . (d) The term “State” includes any Territory or possession of the
United States.
Application of expressio unius est exclusio alterius to 4 U.S.C. §110(d)
reveals that for purposes of income tax under 4 U.S.C. § 106, “State” means the
political society of Guam, American Samoa, Commonwealth of Puerto Rico,
Virgin Islands, Commonwealth of the Northern Mariana Islands, Republic of the
Marshall Islands, Federated States of Micronesia, Republic of Palau, Palmyra
Atoll, Wake Atoll, Baker Island, Howland Island, Jarvis Island, Johnston Atoll,
Midway Atoll, North Island – JACADS, Sand Island, Kingman Reef, or Navassa
Island and no other.14
14
U.S. Dept. of the Interior, Office of Insular Affairs, “All OIA Jurisdictions,”
http://www.doi.gov/oia/islands/index.cfm; and “U.S. Territories under U.S. Fish and Wildlife
Jurisdiction or Shared with Johnston Atoll Chemical Agent Disposal System (JACADS),
http://www.doi.gov/oia/islands/islandfactsheet2.cfm.
37
No member of the American confederacy is a Title 4 U.S.C. Chapter 4 State
of the United States.
FROM RATIONALITY TO POLITICAL / GEOGRAPHICAL ABSURDITY
As of December 22, 1836, the section of territory occupied by Harrisburg
County is a part of what is known as the Republic of Texas.
As of December 28, 1839, the Texas Legislature change the name of
Harrisburg County to Harris County.
As of December 29, 1845, Texas is admitted into the Union and the section
of territory occupied by the commonwealth of Texas is part of what is known at
that time as the United States.
As of June 30, 1864, Congress define expressly the common noun “state” to
(1) include only each respective body politic of the territories and District of
Columbia, supra, p. 21, and (2) exclude impliedly that of Texas and the other 35
respective members of the Union as of that date.
As of March 9, 1878 (retroactive to December 1, 1873), supra, p. 21,
Congress define expressly the proper noun “State” to include only the respective
bodies politic of the Territories and District of Columbia and exclude impliedly
those of all the commonwealths of the Union.
38
As of today in Title 26 U.S.C. and every other title of the United States
Code, Congress define expressly the proper noun “United States” in a geographical
sense to include only the respective sections of territory occupied by the District of
Columbia and certain (depending on the particular title) of the Territories /
possessions and exclude impliedly those occupied by the commonwealths of the
Union.
Wherefore: There is no basis in law, as provided by Congress, for inclusion
of Harris County, Texas, as part of the United States; and the trial court erred when
it stated “But I conclude as a matter of law that [n]orth Harris County [Texas] is
part of the United States.” (ROA.535).
II.
The trial court erred when it ruled that the trial court has
jurisdiction.
A DISTINCT PATTERN OF PROCEDURE
Regarding the two different types of body politic identified in the
Constitution and discussed under Issue I of this Argument, the M.O. of Congress is
to legislate the politically inferior (District of Columbia and the Territories), to be
known by the same common or proper noun or name as is the politically superior
(State and United States), and then exploit the American People’s inability to deal
with the absurdity.
And so it is with lower non-appeals inferior courts.
39
TWO TYPES OF COURT
The Supreme Court identifies the respective type of lower non-appeals
inferior court authorized to exercise jurisdiction in territory throughout the Union
and territory identified in Articles 1 § 8(17) and 4 § 3(2) of the Constitution; to wit:
The United States District Court is not a true United States court
established under article 3 of the Constitution to administer the
judicial power of the United States therein conveyed. It is created by
virtue of the sovereign congressional faculty, granted under article 4,
3, of that instrument, of making all needful rules and regulations
respecting the territory belonging to the United States. The
resemblance of its jurisdiction to that of true United States courts, in
offering an opportunity to nonresidents of resorting to a court not
subject to local influence, does not change its character as a mere
territorial court. Balzac v. People of Porto Rico, 258 U.S. 298, 312
(1922), (ROA.407).
The term ‘District Courts of the United States,’ as used in the rules,
without an addition expressing a wider connotation, has its historic
significance. It describes the constitutional courts created under article
3 of the Constitution. Courts of the Territories are legislative courts,
properly speaking, and are not District Courts of the United States.
We have often held that vesting a territorial court with jurisdiction
similar to that vested in the District Courts of the United States does
not make it a ‘District Court of the United States.’ Reynolds v. United
States, 98 U.S. 145 , 154; The City of Panama, 101 U.S. 453 , 460; In
re Mills, 135 U.S. 263, 268 , 10 S.Ct. 762; McAllister v. United
States, 141 U.S. 174, 182 , 183 S., 11 S.Ct. 949; Stephens v. Cherokee
Nation, 174 U.S. 445, 476 , 477 S., 19 S.Ct. 722; Summers v. United
States, 231 U.S. 92, 101 , 102 S., 34 S.Ct. 38; United States v.
Burroughs, 289 U.S. 159, 163 , 53 S.Ct. 574. Not only did the
promulgating order use the term District Courts of the United States in
its historic and proper sense, but the omission of provision for the
application of the rules to the territorial courts and other courts
mentioned in the authorizing act clearly shows the limitation that was
intended. Mookini v. United States, 303 U.S. 201, 205 (1938).
(ROA.407–408).
40
The Constitution provides for constitutional courts expressly in Article 3 § 1,
territorial courts impliedly in Article 4 § 3(2).
There are two legislatures in the District of Columbia (supra, pp. 16–17);
that of the national government, as provided in the Constitution, and that of the
municipal government, as provided in the Act of February 21, 1871 (id.), each of
which goes by the same name: “Congress.” The legislature of the former creates
constitutional courts; of the latter, territorial courts—both by Act of Congress.
Title 28 U.S.C. does not provide a definition for the territorial court
identified in Balzac and Mookini, supra, i.e., the “United States District Court.”
Notwithstanding this omission, however, because the judges of this particular
species of lower non-appeals inferior court are entitled to hold office during good
behavior, 28 U.S.C. § 451 provides, albeit impliedly, for inclusion of each such
court as a “court of the United States,” just like the other court fora, supreme and
inferior, enumerated in the definition of that term; to wit, in pertinent part:
TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE.
. . . CHAPTER 21—GENERAL PROVISIONS APPLICABLE TO
COURTS AND JUDGES
§ 451. Definitions
As used in this title:
The term “court of the United States” includes the Supreme Court
of the United States, courts of appeals, district courts constituted by
chapter 5 of this title, including the Court of International Trade and
any court created by Act of Congress the judges of which are entitled
to hold office during good behavior.
. . . The term “judge of the United States” includes judges of the
courts of appeals, district courts, Court of International Trade and any
41
court created by Act of Congress, the judges of which are entitled to
hold office during good behavior.
. . . (June 25, 1948, ch. 646, 62 Stat. 907 . . .) [Emphasis added.]
Irrespective of any nominal common or proper noun / name Congress may
create to group certain inferior court fora together, the geographical area over
which a particular lower non-appeals inferior court exercises jurisdiction reveals
whether said court is an Article III constitutional or Article IV territorial court; to
wit:
ï‚· Constitutional courts exercise limited jurisdiction in certain counties
situate in sections of territory occupied by commonwealths united by and
under authority of the Constitution and admitted into the Union; and
ï‚· Territorial courts exercise plenary jurisdiction without the geographical
area occupied by the aforesaid commonwealths, in territory described in
Articles 1 § 8(17) and 4 § 3(2) of the Constitution.
SECOND CONGRESSIONAL LEGISLATIVE STRATAGEM:
CONGRESS GIVE CONSTITUTIONAL AND TERRITORIAL COURTS THE SAME NAME
Notwithstanding that Title 28 U.S.C. provides no definition for the territorial
court identified supra in Balzac and Mookini, i.e., the “United States District
Court,” said title nevertheless provides, in pertinent part:
§ 132. Creation and composition of district courts
(a) There shall be in each judicial district a district court which shall
be a court of record known as the United States District Court for the
district.
. . . (June 25, 1948, ch. 646, 62 Stat. 895 . . .)
42
The Supreme Court in Balzac and Mookini, however, admonishes that:
The United States District Court is not a true United States court
established under article 3 of the Constitution . . . The resemblance of
its jurisdiction to that of true United States courts . . . does not change
its character as a mere territorial court. Balzac, supra, p. 40.
[V]esting a territorial court with jurisdiction similar to that vested in
the District Courts of the United States does not make it a ‘District
Court of the United States.’ Mookini, supra, p. 40.
Whereas, (1) the trial court is a “United States District Judge,” which, like
“United States District Court,” is not defined in Title 28 U.S.C., (2) the trial court
is a judge of a court created by Act of Congress and entitled to hold office during
good behavior, and (3) the forum of the trial court is a United States District Court:
It is essential for jurisdictional purposes to ascertain whether the trial court is “a
true United States court established under article 3 of the Constitution,” Balzac,
supra, p. 40, or “a mere territorial court,” id.
LOWER INFERIOR COURTS AND FEDERAL DEBT COLLECTION
The United States Code provides, in pertinent part:
TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE
. . . CHAPTER 176—FEDERAL DEBT COLLECTION
PROCEDURE
§ 3001. Applicability of chapter
(a) IN GENERAL.—Except as provided in subsection (b), the¹ chapter
provides the exclusive civil procedures for the United States—
(1) to recover a judgment on a debt; or
(2) to obtain, before judgment on a claim for a debt, a remedy in
connection with such claim.
(b) LIMITATION.—To the extent that another Federal law specifies
procedures for recovering on a claim or a judgment for a debt arising
43
under such law, those procedures shall apply to such claim or
judgment to the extent those procedures are inconsistent with this
chapter.
(c) AMOUNTS OWING OTHER THAN DEBTS.—This chapter shall not
apply with respect to an amount owing that is not a debt or to a claim
for an amount owing that is not a debt.
¹ So in original. Probably should be “this”.
§ 3002. Definitions
As used in this chapter:
(1) “Counsel for the United States” means—
(A) a United States attorney, an assistant United States
attorney designated to act on behalf of the United States attorney,
or an attorney with the United States Department of Justice or
with a Federal agency who has litigation authority;
. . . (2) “Court” means any court created by the Congress of the
United States, excluding the United States Tax Court.
(3) “Debt” means—
. . . (B) an amount that is owing to the United States on
account of a[n] . . . assessment, penalty . . . interest, tax . . . but
that is not owing under the terms of a contract originally entered
into by only persons other than the United States;
and includes any amount owing to the United States for the benefit
of an Indian tribe or individual Indian, but excludes any amount to
which the United States is entitled under section 3011(a).
. . . (8) “Judgment” means a judgment, order, or decree entered in
favor of the United States in a court and arising from a civil or
criminal proceeding regarding a debt.
. . . (15) “United States” means—
(A) a Federal corporation;
(B) an agency, department, commission, board, or other entity
of the United States; or
(C) an instrumentality of the United States.
Because this case is an action to reduce to judgment a claim consisting of
(alleged) federal income tax assessments against Trowbridge and to collect
(alleged) taxes, penalties, and interest due in respect thereof, the subject matter of
44
said civil proceeding is a kind of (alleged) debt, 28 U.S.C. §3002(3)(B), against
which the provisions of Title 28 U.S.C. Chapter 176 Federal Debt Collection
Procedure obtain.
TITLE 28 U.S.C. CHAPTER 176 TERMS OF ART “COURT,” “UNITED STATES”
Re the 28 U.S.C. § 3002(2) definition of “court” / “Court,” it is clear that the
trial court is not the United States Tax Court.
Said definition of “court” / “Court,” however, uses within its provisions
another 28 U.S.C. § 3002 term, “United States.” Wherefore, before we can
determine the full extent of the meaning of the 28 U.S.C. § 3002(2) definition of
“court” / “Court” we must account for the meaning of “United States” in 28 U.S.C.
§ 3002(15).
Whereas, parts (B) and (C) of 28 U.S.C. § 3002(15) use “United States” as a
principal part of their respective definition of “United States,” making the meaning
of said definitions unclear / uncertain / ambiguous and undeterminable unless the
definition in part (A) is applied thereto: Part (A) of 28 U.S.C. § 3002(15) is the
controlling definition of the three—and in Title 28 U.S.C. Chapter 176 Federal
Debt Collection Procedure, “United States” means a Federal corporation.
Returning to the pertinent portion of 28 U.S.C. § 3002(2): The term “court” /
“Court” means any court created by the Congress of a Federal corporation.
45
Whereas, only one Federal corporation has a Congress: The trial court is a
court created by the legislature of the District of Columbia municipal corporation
“by virtue of the sovereign congressional faculty, granted under article 4, 3,”
Balzac, supra, p. 40, and therefore a territorial court whose jurisdiction is limited
to geographical area identified in Article 1 § 8(17) or 4 § 3(2) of the Constitution.
TROWBRIDGE’S RESIDENCE, DOMICIL, AND LEGAL RESIDENCE
Trowbridge is a resident of Harris County, Texas. (ROA.153, 181).
The geographical area occupied by Harris County, Texas, is situate without
every section of territory identified in Article 1 § 8(17) and 4 § 3(2) of the
Constitution and the jurisdiction of any territorial court.
The material / physical fact of Trowbridge’s residence for the general
purposes of life and major life interests, in the geographical area occupied by
Harris County, Texas, i.e., Trowbridge’s “preeminent headquarters,” bars
peremptorily any claim that for the purpose of taxation Trowbridge resides in the
District of Columbia; to wit:
When one intends the facts to which the law attaches consequences,
he must abide the consequences whether intended or not. 13. One can
not elect to make his home in one place in point of interest and
attachment and for the general purposes of life, and in another, where
he in fact has no residence, for the purpose of taxation. P. 426. 14.
Physical facts of residence, united with major life interests may fix
domicile — one’s “preeminent headquarters.” Id. 15. The burden of
proof is on one who claims that an earlier domicile was abandoned for
a later one. P. 427. Texas v. Florida, 306 U.S. 398 (1939).
46
For Plaintiff to prove Plaintiff’s claims against Trowbridge and
Trowbridge’s property and that Trowbridge resides within the jurisdiction of the
trial court, a legislative Article IV territorial court, Plaintiff would have to produce
evidence consistent with the following:
To constitute a change of domicil, three things are essential: (1)
Residence in another place [District of Columbia] ; (2) an intention to
abandon the old domicil [Texas] ; and (3) an intention of acquiring a
new one [District of Columbia] ; or as some writers express it there
must be an animus non revertendi and an animus manendi, or animus
et factum [Citations omitted.] . . . Bouvier’s 8th, p. 921. (ROA.299).
Trowbridge challenges properly Plaintiff’s allegation of jurisdiction multiple
times.15 The ROA, however, reflects no evidence of jurisdiction from Plaintiff,
despite the burden to produce such; to wit:
It is also hornbook law that the party invoking federal jurisdiction
bears the burden of proving facts to establish that jurisdiction. See 13
C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure §
3522, at 62-65 (2d ed.1984); 15 J. Moore, Moore’s Federal Practice §
102.14, at 102-24 (3d ed. 1998) (“The burden of proving all
jurisdictional facts is on the party asserting jurisdiction.”); see also
Scelsa v. City University of New York, 76 F.3d 37, 40 (2d Cir.1996).
That party must allege a proper basis for jurisdiction in his pleadings
and must support those allegations with “competent proof” if a party
opposing jurisdiction properly challenges those allegations, see, e.g.,
McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56
S.Ct. 780, 80 L.Ed. 1135 (1936), or if the court sua sponte raises the
question, see, e.g., Fed.R.Civ.P. 12(h)(3); Louisville & Nashville R.R.
v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908).
Linardos v. Fortuna, 157 F.3d 945 (2d Cir. 1998).
15
ROA.56–62; 107–112; 291–336; 348–357; 382.
47
Because 28 U.S.C. § 451 provides (1) for both constitutional and territorial
courts, and (2) that a court of either species can have the same name, i.e., “United
States District Court”: It is incumbent on Plaintiff not only to demonstrate that
Trowbridge resides within the jurisdiction of a United States District Court, but
also that the particular United States District Court that is the trial court, is of the
species of lower non-appeals inferior court that has jurisdiction in the geographical
area in which Trowbridge resides. The ROA reflects no evidence of either.
The only competent evidence relating to Trowbridge’s residence, domicil, or
legal residence establishes that Trowbridge is neither a resident of, domiciled in,
nor a legal resident of the District of Columbia. (ROA.333–336).
Whereas: There is no basis in law for any allegation in the Complaint; and
Whereas: The Court is a 28 U.S.C. § 3002(2) court created by the legislature
of the District of Columbia municipal corporation (and authorized to exercise
personal jurisdiction and enter judgments in criminal proceedings, 28 U.S.C. §
3002(8), involving the same kind of debt that Trowbridge is alleged to have, 28
U.S.C. § 3002(3)(B)) and a territorial court of plenary jurisdiction; and
Whereas: Trowbridge resides not within the jurisdiction of the trial court, as
alleged by Plaintiff (ROA.1); and
Whereas: The trial court is bereft of jurisdiction in Harris County, Texas,
48
Wherefore: The trial court erred when it ruled “This court has jurisdiction.1”
and “1 28 U.S.C. § 1340 (2012).” (ROA.380).
CONCLUSION
The mystery as to why Plaintiff would decline Trowbridge’s offer to
discharge the debt alleged in the Complaint and bring things to a conclusion at the
outset is now solved: actual legislative fraud on the part of Congress and connivance
therewith by claimant United States and counsel for claimant United States.
“Uno absurdo dato, infinita sequuntur. One absurdity being allowed, an
infinity follow,” Bouvier’s 8th, p. 2166, and the solution to the seeming infinity of
absurdities abounding in the wake of the seminal legislative absurdities identified
herein, is sober application of the same universal rules of statutory construction
and interpretation used to make, declare, and apply all statutes.
The Supreme Court re ordinary acts that alter the Constitution (e.g., ex post
facto perversion of the meaning of words used by the Framers, supra):
It is a proposition too plain to be contested, that the constitution
controls any legislative act repugnant to it; or, that the legislature may
alter the constitution by an ordinary act.
Between these alternatives there is no middle ground. The
constitution is either a superior, paramount law, unchangeable by
ordinary means, or it is on a level with ordinary legislative acts, and
like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act
contrary to the constitution is not law: if the latter part be true, then
written constitutions are absurd attempts, on the part of the people, to
limit a power in its own nature illimitable.
49
Certainly all those who have framed written constitutions
contemplate them as forming the fundamental and paramount law of
the nation, and consequently the theory of every such government
must be, that an act of the legislature repugnant to the constitution is
void. Marbury v. Madison, 5 U. S. 137, 176 (1803).
Two simple guidelines allow anyone to discern whether a particular piece of
congressional legislation is municipal:
1. If any object of the definition of “United States” provided in the
legislation is any section of territory whose body politic is one over
whom the Constitution authorizes Congress to exercise personal
legislation; or
2. If the legislation authorizes exercise of personal jurisdiction.
The former describes Title 26 U.S.C.; the latter, Title 28 U.S.C. Chapter 176.
De fide et officio judicis non recipitur quaestio, sed de scientia, sive
error sit juris sive facti. The good faith and honesty of purpose of a
judge cannot be questioned, but his decision may be impugned for
error either of law or of fact. Bouvier’s 8th, p. 2130.
“Error juris nocet. Error of law is injurious,” Bouvier’s 8th, p. 2132, and the
ROA is devoid of evidence that Trowbridge is an “individual who is a citizen or
resident of the United States . . . [or] nonresident alien individual,” 26 C.F.R. § 1.11(a)(1), or resides within the jurisdiction of the trial court; or that the trial court, a
legislative Article IV territorial court, has jurisdiction in Harris County, Texas.
For these reasons, there is no basis in law for either the trial court’s
conclusion in Issue I or ruling in Issue II.
50
As a footnote hereto: Whereas, Title 28 U.S.C. Chapter 176 provides a
specific definition for “United States,” with regard to the instant proceeding the
ordinary usage and definition of “United States” is forfeit and said technical term /
term of art means only what Congress legislate it to mean, supra, p. 26, SCOTT n.
45; “Table 1. Linguistic Inference Canons,” p. 28.
Wherefore, Trowbridge would request the Court take judicial notice that (1)
claimant United States is a Federal corporation, (2) counsel for claimant United
States, i.e., Counsel for the United States, 28 U.S.C. § 3002(1), are counsel for a
Federal corporation, (3) the instant United States District Judge, i.e., the trial
court, is a Federal corporation District Judge, and (4) said counsel and trial court
are all legislative-branch officers of the same for-profit commercial enterprise,16
the District of Columbia municipal corporation, supra, pp. 16–17.
The aforesaid facts constitute a breach of the constitutional doctrine of
separation of powers (see also 28 U.S.C. § 528 re political conflict of interest) that
removes any appearance of impartiality.
PRAYER FOR RELIEF
WHEREFORE, Trowbridge prays the Court:
1. That the Court reverse the Amended Final Judgment of the trial court
and annul the trial court’s Order of Sale and Vacature;
16
The United States is located in the District of Columbia. U.C.C. § 9-307(h).
51
2. That the Court dismiss with prejudice the Complaint of the Plaintiff
for clear absence of all jurisdiction;
3. That the Court order Plaintiff to terminate all assessments made and
liens filed against Trowbridge or Trowbridge’s property in respect of
the subject matter of the Complaint;
4. That the Court order that any other action the subject matter of which
is the same as that alleged in the Complaint and filed subsequent to
the trial court’s Amended Final Judgment be dismissed with prejudice
for clear absence of all jurisdiction;
5. That the Court order that Plaintiff pay Trowbridge special damages
for direct and indirect financial and property injury sustained as a
result of liens filed and foreclosed in the absence of jurisdictional
authority to do so, within twenty (20) days of presentment of any
documentary invoice for such damages sworn to as true, correct, and
complete before three competent witnesses and approved by the
Court;
6. That the Court order that Plaintiff pay Trowbridge such general
damages as the Court deems just and proper for permanent loss of the
beneficial use and enjoyment of Trowbridge’s real and personal
52
property as a result of the judgment and order entered in the instant
unauthorized proceeding;
7. That the Court order that Plaintiff pay Trowbridge such exemplary
damages as the Court deems just and proper for (a) intangible
personal injury,17 and (b) injury to Trowbridge’s social and
professional reputation and prestige, sustained as a natural and
probable consequence of the stigma / opprobrium associated with the
instant unauthorized action, judgment, and order;
8. That the Court order that Plaintiff pay Trowbridge restitution in full
for all sums paid by Trowbridge and all sums levied / seized by
Plaintiff’s agents, over Trowbridge’s lifetime, in respect of income
tax; and
9. For such other and further relief that the Court may deem just and fair.
Respectfully submitted,
_________________________________
John Parks Trowbridge, Jr.
9816 Memorial Boulevard #205
Humble, Texas
(281) 540-2329
17
See State Farm Mut. Auto Ins. Co. v. Campbell and BMW of North America Inc. v.
Gore re intangible personal injury.
53
ADDENDUM
CONSTITUTIONAL PROVISIONS
U.S. Const. art. I, § 8, cl. 1–18
The Congress shall have Power To lay and collect Taxes, Duties,
Imposts and Excises, to pay the Debts and provide for the common
Defence and general Welfare of the United States; but all Duties,
Imposts and Excises shall be uniform throughout the United States;
To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on
the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and
fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and
current Coin of the United States;
To establish Post Offices and post Roads;
To promote the Progress of Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high
Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make
Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that
Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and
naval Forces;
To provide for calling forth the Militia to execute the Laws of the
Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and
for governing such Part of them as may be employed in the Service of
the United States, reserving to the States respectively, the
Appointment of the Officers, and the Authority of training the Militia
according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such
District (not exceeding ten Miles square) as may, by Cession of
particular States, and the Acceptance of Congress, become the Seat of
the Government of the United States, and to exercise like Authority
over all Places purchased by the Consent of the Legislature of the
State in which the Same shall be, for the Erection of Forts, Magazines,
Arsenals, dock-Yards, and other needful Buildings;—And
To make all Laws which shall be necessary and proper for carrying
into Execution the foregoing Powers, and all other Powers vested by
this Constitution in the Government of the United States, or in any
Department or Officer thereof.
U.S. Const. art. III, § 1
The judicial Power of the United States, shall be vested in one
supreme Court, and in such inferior Courts as the Congress may from
time to time ordain and establish. The Judges, both of the supreme and
inferior Courts, shall hold their Offices during good Behaviour, and
shall, at stated Times, receive for their Services, a Compensation,
which shall not be diminished during their Continuance in Office.
U.S. Const. art. III, § 2, cl. 1–2
The judicial Power shall extend to all Cases, in Law and Equity,
arising under this Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under their Authority;—to all
Cases affecting Ambassadors, other public Ministers and Consuls;—
to all Cases of admiralty and maritime Jurisdiction;—to Controversies
to which the United States shall be a Party;—to Controversies
between two or more States;— between a State and Citizens of
another State,—between Citizens of different States,—between
Citizens of the same State claiming Lands under Grants of different
States, and between a State, or the Citizens thereof, and foreign States,
Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and
Consuls, and those in which a State shall be Party, the supreme Court
shall have original Jurisdiction. In all the other Cases before
mentioned, the supreme Court shall have appellate Jurisdiction, both
as to Law and Fact, with such Exceptions, and under such Regulations
as the Congress shall make.
U.S. Const. art. IV, § 3, cl. 2
The Congress shall have Power to dispose of and make all needful
Rules and Regulations respecting the Territory or other Property
belonging to the United States; and nothing in this Constitution shall
be so construed as to Prejudice any Claims of the United States, or of
any particular State.
STATUTES
26 U.S. Code § 6109 - Identifying numbers
. . . (d) Use of social security account number
The social security account number issued to an individual for
purposes of section 205(c)(2)(A) of the Social Security Act shall,
except as shall otherwise be specified under regulations of the
Secretary, be used as the identifying number for such individual for
purposes of this title.
26 U.S. Code § 7701 - Definitions
(a) When used in this title, where not otherwise distinctly expressed or
manifestly incompatible with the intent thereof—
. . . (9) United States
The term “United States” when used in a geographical sense
includes only the States and the District of Columbia.
26 U.S. Code Chapter 75, Subchapter A - Crimes
PART I—GENERAL PROVISIONS (§§ 7201–7217)
PART II—PENALTIES APPLICABLE TO CERTAIN TAXES
(§§ 7231–7241)
28 U.S. Code § 41 - Number and composition of circuits
The thirteen judicial circuits of the United States are constituted as
follows:
Circuits
Composition
. . . Fifth
District of the Canal Zone, Louisiana, Mississippi,
Texas.
28 U.S. Code § 124 - Texas
Texas is divided into four judicial districts to be known as the
Northern, Southern, Eastern, and Western Districts of Texas.
. . . (b) The Southern District comprises seven divisions.
. . . (2) The Houston Division comprises the counties of Austin,
Brazos, Colorado, Fayette, Fort Bend, Grimes, Harris, Madison,
Montgomery, San Jacinto, Walker, Waller, and Wharton.
Court for the Houston Division shall be held at Houston.
28 U.S. Code § 528 - Disqualification of officers and employees of
the Department of Justice
The Attorney General shall promulgate rules and regulations which
require the disqualification of any officer or employee of the
Department of Justice, including a United States attorney or a member
of such attorney’s staff, from participation in a particular investigation
or prosecution if such participation may result in a personal, financial,
or political conflict of interest, or the appearance thereof. Such rules
and regulations may provide that a willful violation of any provision
thereof shall result in removal from office.
(Added Pub. L. 95–521, title VI, § 603(a), Oct. 26, 1978, 92 Stat.
1874.)
28 U.S. Code § 1291 - Final decisions of district courts
The courts of appeals (other than the United States Court of Appeals
for the Federal Circuit) shall have jurisdiction of appeals from all final
decisions of the district courts of the United States, the United States
District Court for the District of the Canal Zone, the District Court of
Guam, and the District Court of the Virgin Islands, except where a
direct review may be had in the Supreme Court. The jurisdiction of
the United States Court of Appeals for the Federal Circuit shall be
limited to the jurisdiction described in sections 1292 (c) and (d) and
1295 of this title.
28 U.S. Code § 1340 - Internal revenue; customs duties
The district courts shall have original jurisdiction of any civil action
arising under any Act of Congress providing for internal revenue, or
revenue from imports or tonnage except matters within the
jurisdiction of the Court of International Trade.
28 U.S. Code § 3002 - Definitions
As used in this chapter:
. . . (15) “United States” means—
(A) a Federal corporation;
(B) an agency, department, commission, board, or other entity of
the United States; or
(C) an instrumentality of the United States.
CASES
State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003):
Our jurisprudence and the principles it has now established
demonstrate, however, that, in practice, few awards exceeding a
single-digit ratio between punitive and compensatory damages, to a
significant degree, will satisfy due process. In Haslip, in upholding a
punitive damages award, we concluded that an award of more than
four times the amount of compensatory damages might be close to the
line of constitutional impropriety. 499 U. S., at 23-24. We cited that 4to-1 ratio again in Gore. 517 U. S., at 581. The Court further
referenced a long legislative history, dating back over 700 years and
going forward to today, providing for sanctions of double, treble, or
quadruple damages to deter and punish. Id., at 581, and n. 33. While
these ratios are not binding, they are instructive. They demonstrate
what should be obvious: Single-digit multipliers are more likely to
comport with due process, while still achieving the State’s goals of
deterrence and retribution, than awards with ratios in range of 500 to
1, id., at 582, or, in this case, of 145 to 1.
Nonetheless, because there are no rigid benchmarks that a punitive
damages award may not surpass, ratios greater than those we have
previously upheld may comport with due process where “a
particularly egregious act has resulted in only a small amount of
economic damages.” Ibid.; see also ibid. (positing that a higher ratio
might be necessary where “the injury is hard to detect or the monetary
value of noneconomic harm might have been difficult to determine”).
. . . The precise award in any case, of course, must be based upon
the facts and circumstances of the defendant’s conduct and the harm
to the plaintiff.
BMW of North America Inc. v. Gore, 517 U.S. 559, 575, 576, 581,
589 (1996):
Perhaps the most important indicium of the reasonableness of a
punitive damages award is the degree of reprehensibility of the
defendant’s conduct.[23] As the Court stated nearly 150 years ago,
exemplary damages imposed on a defendant should reflect “the
enormity of his offense.” Day v. Woodworth, 13 How. 363, 371
(1852). See also St. Louis, I. M. & S. R. Co. v. Williams, 251 U. S. 63,
66-67 (1919) (punitive award may not be “wholly disproportioned to
the offense”); Browning-Ferris Industries of Vt., Inc. v. Kelco
Disposal, Inc., 492 U. S. 257, 301 (1989) (O’Connor, J., concurring in
part and dissenting in part) (reviewing court “should examine the
gravity of the defendant’s conduct and the harshness of the award of
punitive damages”).[24] . . . Similarly, “trickery and deceit,” TXO,
509 U. S., at 462, are more reprehensible than negligence. [p. 575]
. . . To be sure, infliction of economic injury, especially when done
intentionally through affirmative acts of misconduct, id., at 453, or
when the target is financially vulnerable, can warrant a substantial
penalty. [p. 576]
. . . TXO, following dicta in Haslip, refined this analysis by
confirming that the proper inquiry is “`whether there is a reasonable
relationship between the punitive damages award and the harm likely
to result from the defendant’s conduct as well as the harm that
actually has occurred.’ “TXO, 509 U. S., at 460 (emphasis in original),
quoting Haslip, 499 U. S., at 21. [p. 581]
. . . (“Oppression” includes “[s]ubjecting a person to . . . unjust
hardship in conscious disregard of that person’s rights”). [p. 589]
[23] “The flagrancy of the misconduct is thought to be the primary consideration
in determining the amount of punitive damages.” Owen, A Punitive Damages
Overview: Functions, Problems and Reform, 39 Vill. L. Rev. 363, 387 (1994).
CERTIFICATE OF COMPLIANCE
Certificate of Compliance with Type-Volume Limitation,
Typeface Requirements, and Type-Style Requirements
Case No. 14-20333
1.
Pursuant to FED. R. APP. P. 32(a)(7)(C)(i), I, John Parks Trowbridge, Jr.,
certify that this brief complies with the type-volume limitation of FED. R. APP. P.
32(a)(7)(B)(i) and 5TH CIR. R. 32.2 because:
This brief contains 13,945 words, excluding the parts of the brief
exempted by FED. R. APP. P. 32(a)(7)(B)(iii) and 5TH CIR. R. 32.2.
[Word count verified in Microsoft Word (PC) 2007, and confirmed in
Microsoft Word for Mac 2011, version 14.4.2, as 13,938 words,
discrepancy unexplained]
2.
I, John Parks Trowbridge, Jr., certify that this brief complies with the
typeface requirements of FED. R. APP. P. 32(a)(5)(A) and 5TH CIR. R. 32.1 and the
type-style requirements of FED. R. APP. P. 32(a)(6) because:
This brief is prepared in a proportionally spaced typeface using
Microsoft Word (PC), version 2007, in Times New Roman, 14-point
font for text and12-point font for footnotes.
3.
I, John Parks Trowbridge, Jr., understand that 5TH CIR. R. 32.3 and 32.5
provide that a material misrepresentation in this certificate of compliance or
circumvention in the brief of the type-volume limits in FED. R. APP. P.
32(a)(7)(B)(i) may result in striking the brief and sanctions against me.
Dated: _____________________
______________________________
John Parks Trowbridge, Jr.
Case: 14-20333
Document: 00512774360
Page: 1
Date Filed: 09/18/2014
14-20333
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOHN PARKS TROWBRIDGE, JR.,
Defendant-Appellant
ON APPEAL FROM THE JUDGMENT OF
THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
BRIEF FOR THE APPELLEE
TAMARA W. ASHFORD
Acting Assistant Attorney General
ROBERT W. METZLER
(202) 514-3938
(202) 514-2921
CAROL BARTHEL
Attorneys
Tax Division
Department of Justice
Post Office Box 502
Washington, D.C. 20044
Of Counsel:
KENNETH MAGIDSON
United States Attorney
844260.1
Case: 14-20333
Document: 00512774360
Page: 2
Date Filed: 09/18/2014
i
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Fifth Circuit Rule 28.2.3, counsel for the appellee
believe that oral argument is not necessary in this case because the
appellant is proceeding pro se and his arguments are frivolous.
844260.1
Case: 14-20333
Document: 00512774360
Page: 3
Date Filed: 09/18/2014
ii
TABLE OF CONTENTS
Page
Statement regarding oral argument .......................................................... i
Table of contents .......................................................................................ii
Table of authorities ................................................................................. iii
Statement of jurisdiction........................................................................... 1
Statement of the issue ............................................................................... 3
Statement of the case ................................................................................ 3
1.
The complaint and answer ...................................................... 4
2.
The parties’ motions ................................................................ 6
3.
The District Court’s ruling and judgment ............................ 10
Summary of argument ............................................................................ 12
Argument ................................................................................................. 14
The District Court properly ordered that the assessments of
Trowbridge’s tax liabilities for 1993 through 1997 be reduced
to judgment, the related tax liens foreclosed, and the
property sold, with proceeds to be applied to the tax
liabilities ......................................................................................... 14
Standard of review ......................................................................... 14
A.
Introduction ........................................................................... 15
B.
The tax assessments were properly reduced to
judgment................................................................................ 16
C.
The foreclosure of the liens against Trowbridge’s
real property was proper ....................................................... 19
D.
The District Court did not abuse its discretion in
ordering the sale of the real property ................................... 22
E.
Trowbridge’s arguments are frivolous .................................. 24
Conclusion ............................................................................................... 30
Certificate of service ................................................................................ 31
844260.1
Case: 14-20333
Document: 00512774360
Page: 4
Date Filed: 09/18/2014
iii
Page(s)
Certificate of compliance with Rule 32(a) ............................................... 32
TABLE OF AUTHORITIES
Cases:
Affiliated Foods, Inc. v. Commissioner,
154 F.3d 527 (5th Cir. 1998) ................................................. 16
Bluebonnet Hotel Ventures, LLC. v. Wells Fargo Bank, N.A.,
754 F.3d 272 (5th Cir. 2014) ............................................ 14-15
Caniff v. Commissioner,
1995 WL 216861 (7th Cir. 1995) ........................................... 26
Crain v. Commissioner,
737 F.2d 1417 (5th Cir. 1984) ............................................... 29
Duffie v. United States,
600 F.3d 362 (5th Cir. 2010) ................................................. 17
DuPree v. Saunders,
588 F.3d 282 (5th Cir. 2009) ........................................... 15, 24
Hannah v. United States,
523 F.3d 597 (5th Cir. 2008) ................................................. 24
In re Becraft,
885 F.2d 547 (9th Cir. 1989) ................................................. 27
Lonsdale v. United States,
919 F.2d 1440 (10th Cir. 1990) ............................................. 27
Medina v. INS,
993 F.2d 499 (5th Cir. 1993) ................................................. 17
Miller v. Nationwide Life Ins. Co.,
391 F.3d 698 (5th Cir. 2004) ................................................. 24
Stearman v. Commissioner,
436 F.3d 533 (5th Cir. 2006) ................................................. 25
Stuart v. United States,
337 F.3d 31 (1st Cir. 2003) .................................................... 18
Test Masters Educational Services, Inc. v. Singh,
428 F.3d 559 (5th Cir. 2005) ................................................. 17
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Cases (continued):
Page(s)
Trowbridge et al. v. Commissioner,
T.C. Memo. 2003-165,
2003 WL 21278414 (2003)........................................... 8, 16, 23
Trowbridge v. Commissioner,
T.C. Memo. 2003-164,
2003 WL 21278475 (2003)........................................... 7, 16, 23
United States v. Beale,
574 F.3d 512 (8th Cir. 2009) ................................................. 26
United States v. Bess,
357 U.S. 51 (1958) ................................................................. 21
United States v. Brosnan,
363 U.S. 237 (1960) ............................................................... 22
United States v. Burnett,
452 Fed. App’x 569 (5th Cir. 2011) ....................................... 18
United States v. Cache Valley Bank,
866 F.2d 1242 (10th Cir. 1989) ....................................... 19, 21
United States v. Chila,
871 F.2d 1015 (11th Cir. 1989) ............................................. 18
United States v. Collins,
920 F.2d 619 (10th Cir. 1990) ............................................... 27
United States v. Davenport,
484 F.3d 321 (5th Cir. 2007) ................................................. 17
United States v. Fior d’Italia, Inc.,
583 U.S. 238 (2002) ............................................................... 16
United States v. Gerads,
999 F.2d 1255 (8th Cir. 1993) ............................................... 26
United States v. Henderson,
209 Fed. App’x 401 (5th Cir. 2006) .................................. 27-28
United States v. Janis,
428 U.S. 433 (1976) ............................................................... 16
United States v. Masat,
948 F.2d 923 (5th Cir. 1991) ................................................. 28
United States v. Maxwell,
459 F.2d 22 (5th Cir 1972) .................................................... 18
United States v. McCallum,
970 F.2d 66 (5th Cir. 1992) ................................................... 18
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Cases (continued):
Page(s)
United States v. McDermott,
507 U.S. 447 (1993) ............................................................... 20
United States v. National Bank of Commerce,
472 U.S. 713 (1985) ............................................................... 20
United States v. Price,
798 F.2d 111 (5th Cir. 1986) ................................................. 26
United States v. Rodgers,
461 U.S. 677 (1983) ............................................. 13, 15, 20, 22
United States v. Saunders,
951 F.2d 1065 (9th Cir. 1991) ............................................... 28
United States v. Shanbaum,
10 F.3d 305 (5th Cir. 1994) .............................................. 17-18
United States v. Sileven,
985 F.2d 962 (8th Cir. 1993) ................................................. 28
United States v. Sloan,
939 F.2d 499 (7th Cir. 1991) ................................................. 27
United States v. Vermont,
377 U.S. 351 (1964) ............................................................... 19
United States v. Ward,
833 F.2d 1538 (11th Cir. 1987) ............................................. 29
Statutes:
Internal Revenue Code (26 U.S.C.):
§ 6321..................................................................................... 19
§ 6322..................................................................................... 19
§ 7402..................................................................................... 27
§ 7402(a) .................................................................................. 2
§ 7403........................................................................... 2, 22, 27
§ 7403(a) ................................................................................ 20
§ 7403(b) ............................................................................ 2, 20
§ 7403(c)................................................................................. 20
§ 7602(a) ................................................................................ 28
§ 7604..................................................................................... 28
§ 7604(a) ................................................................................ 29
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Statute (continued):
Page(s)
28 U.S.C.:
§ 124....................................................................................... 28
§ 1291....................................................................................... 3
§ 1331..................................................................................... 28
§ 1340........................................................................... 2, 27, 29
§ 1345................................................................................. 2, 27
§ 1912..................................................................................... 29
§ 2107(b) .................................................................................. 3
Rules and Regulations:
Fed. R. App. P.:
Rule 4(a)(1)(B) ......................................................................... 3
Rule 38................................................................................... 29
Treas. Reg. § 1.1-1(a)(1) ................................................................. 27
Miscellaneous:
Constitution of the United States ............................................. 25-26
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-20333
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOHN PARKS TROWBRIDGE, JR.,
Defendant-Appellant
ON APPEAL FROM THE JUDGMENT OF
THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
BRIEF FOR THE APPELLEE
STATEMENT OF JURISDICTION
The United States brought this suit against John Parks
Trowbridge, Jr. (“Trowbridge”), seeking to collect delinquent federal
taxes owed by Trowbridge for his 1993 through 1997 tax years. (ROA.820.) To that end, the Government sought: (i) to reduce to judgment
income tax assessments for 1993 through 1997, the unpaid balances of
which (as of September 1, 2013) totaled $3,286,335.47; (ii) to foreclose
upon related tax liens of the United States against a parcel of real
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property in which Trowbridge claimed an ownership interest (the “real
property”); and (iii) to obtain a judicial sale of the real property, with
the proceeds of sale to be distributed according to the relative priorities
of the parties’ claims. As is required in a suit seeking foreclosure of a
federal tax lien, the Government also named Freedom Ventures, UBO,
and Montgomery County (Texas) Tax Office as defendants, because they
might claim an interest in or lien on the real property. 1 See Internal
Revenue Code of 1986 (26 U.S.C.) (“I.R.C.” or “Code”) § 7403(b). The
District Court had jurisdiction pursuant to 28 U.S.C. §§ 1340 and 1345
and I.R.C. §§ 7402(a) and 7403.
On May 23, 2014, the District Court (Hon. Lynn N. Hughes)
issued an amended judgment, granting the Government judgment of
$3,326,015.01 against Trowbridge and Freedom Ventures, UBO, plus
statutory additions accruing after April 7, 2014, and ordering that the
Government could foreclose upon its tax lien against the real property.
(ROA.413.) The same day, it issued an order of sale of the real
The Government and Montgomery County Tax Office
subsequently stipulated to the relative priority of their claims against
the real property. (ROA.339-341.)
1
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property. (ROA.414-417.) That order is a final, appealable order that
disposes of all claims of the parties. On May 27, 2014, within 60 days
thereafter, Trowbridge filed a timely notice of appeal. (ROA.418.) See
28 U.S.C. § 2107(b); Fed. R. App. P. 4(a)(1)(B). This Court has
jurisdiction under 28 U.S.C. § 1291.
STATEMENT OF THE ISSUE
Whether the District Court correctly granted summary judgment
to the Government, ordering Trowbridge’s income tax liabilities for
1993 through 1997 reduced to judgment, the associated tax liens
foreclosed against the real property, and the property sold, where
Trowbridge raised only frivolous arguments in opposition to the
Government’s motion.
STATEMENT OF THE CASE
Trowbridge, a physician, is a resident of Texas. The Government
brought this suit to reduce to judgment certain unpaid assessments of
income tax, related penalties, and interest for Trowbridge’s 1993
through 1997 tax years. The suit also sought to foreclose the related
tax liens against the real property and to obtain a judicial sale of that
property, with the proceeds of the sale distributed according to the
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relative priorities of the parties’ claims. The Government moved for
summary judgment. Opposing, Trowbridge raised only frivolous
arguments, asserting that the District Court lacked jurisdiction over
him, and the Internal Revenue Code did not apply to him, because he
did not reside in “the District of Columbia or one of the territories”
(ROA.327) and thus was not “a citizen or resident of the United States”
(ROA.332). Granting summary judgment to the Government, the
District Court ordered the tax assessments reduced to judgment, the
related tax liens foreclosed upon, and the real property sold, with the
Government’s share of the proceeds to go towards Trowbridge’s tax
liabilities for the years at issue.
1.
The complaint and answer
The Government brought this suit to reduce to judgment certain
unpaid assessments of income tax, related penalties, and interest in the
following amounts (as of September 1, 2013): $371,173.71 for 1993;
$482,760.14 for 1994; $481,310.16 for 1995; $1,295,799.01 for 1996; and
$655,292.45 for 1997. (ROA.8-12.) The suit also sought to foreclose the
related tax liens against the real property, located at 25117 Ramrock
Drive, Porter, Texas, and to obtain a judicial sale of that property, with
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the proceeds of the sale to be distributed according to the relative
priority of the parties’ claims. The complaint alleged that Trowbridge
purchased the real property in 2005 and subsequently transferred the
property to Freedom Ventures, UBO, a transfer that the Government
sought to have set aside as void with respect to the Government.
(ROA.10.)
In his response to the Government’s complaint, Trowbridge
asserted that the Government had not shown that he was “born in a
State or the United States or is a citizen or resident of the United
States” or that he “is subject to the jurisdiction of the United States in
this matter.” (ROA.57.) He further asserted that the Government had
not produced proof of “the debt alleged” or evidence that he owed tax in
the amounts stated or that the real property was subject to foreclosure.
(ROA.58.) The District Court construed this response, captioned
“Conditional Acceptance and Demand for Proof or Withdrawal of
Claim,” as the answer of both Trowbridge and Freedom Ventures, UBO.
(ROA.91, 100.)
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2.
The parties’ motions
Trowbridge moved to dismiss the complaint “for lack of subjectmatter jurisdiction over the property upon which the United States
seeks to foreclose its lien.” (ROA.108.) He contended that he was
“neither a citizen or resident of the United States nor an individual nor
one with a federal tax liability.” (ROA.110.) Arguing that the term
“United States” and the jurisdiction of the court “extends only to
Federal corporations, such as the ultimate parent Federal corporation,
the District of Columbia,” he asserted that there was no evidence that
he owed the taxes alleged in the complaint. (ROA.111-112 (emphasis in
original).)
The Government moved for summary judgment. (ROA.114-120.)
The Government stated that, in January 2004, after adjudication by the
United States Tax Court of the tax deficiencies at issue against
Trowbridge, the IRS had assessed those taxes and given Trowbridge
notice and demand for payment. (ROA.115.) It stated that the
Government had recorded notices of federal tax lien with respect to
those liabilities on July 7, 2011, and October 2, 2012. (ROA.116.) The
Government asserted that the real property had been transferred to
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Trowbridge in April 2005 (ROA.115) and that, on October 25, 2012
(after the taxes were assessed and the notices of federal tax liens were
filed), Trowbridge recorded a real-property contract purportedly
transferring the property to Freedom Ventures, UBO, a trust he
controlled. (ROA.116, 119.) The Government argued that Trowbridge
was thus indebted to the United States for his outstanding tax
liabilities; that the related tax liens should be foreclosed against the
real property, to which the liens attached upon their assessment; and
that property should be ordered sold, with proceeds going towards the
tax liabilities. (ROA.118-119.)
In support of its motion for summary judgment, the Government
attached copies of the notices of federal tax lien (ROA.122-129); IRS
account transcripts for Trowbridge for the years at issue showing that
taxes had been assessed and notices sent and that tax liabilities
remained unpaid (ROA.130-149); Tax Court decisions upholding tax
deficiencies for Trowbridge’s 1991-1995 and 1996-1997 tax years
(ROA.150-204)2; the warranty deed and deed of trust transferring the
Trowbridge et al. v. Commissioner, T.C. Memo. 2003-164, 2003
WL 21278475 (2003) (determining deficiencies for years 1991-1995 and
(continued…)
2
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real property to Trowbridge (ROA.205-210); and the contract
purportedly transferring the real property from Trowbridge to Freedom
Ventures, UBO, signed by Trowbridge for himself and as “Managing
Trustee” of Freedom Ventures (ROA.211-214). 3
At an April 7, 2014 conference, the District Court judge told
Trowbridge that he had read his filings and expressed concern about
their contents. (ROA.518-520.) The judge informed Trowbridge that
Texas was part of America and that those who maintained the contrary
“are cranks who are delusional.” (ROA.520.) The court directed
Trowbridge to respond to the Government’s motion for summary
judgment, warning him that, if his response to the motion were similar
(…continued)
imposing $25,000 sanction for maintaining a proceeding primarily for
delay), on appeal, No. 04-60029 (5th Cir.), appeal dismissed, June 3,
2004; Trowbridge et al. v. Commissioner, T.C. Memo. 2003-165, 2003
WL 21278414 (2003) (determining tax deficiencies for 1996 and 1997
and imposing additional $25,000 sanction for maintaining a proceeding
primarily for delay), aff’d, 378 F.3d 432 (5th Cir. 2004) (affirming
liability determination and sanction and imposing additional $6,000
sanction for pursuing a frivolous appeal).
Trowbridge subsequently identified Freedom Ventures Trust,
UBO, as an “unincorporated business association.” (ROA.527.)
3
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to his answer to the complaint, “then the United States will win because
it will be, for all practical purposes, no answer.” (ROA.521, 523.)
Trowbridge filed an opposition to the Government’s summaryjudgment motion, combined with a renewed motion to dismiss for lack
of jurisdiction. (ROA.291-332.) In this document, he contended that
counsel for “the United States” was not authorized to represent “the
United States of America,” an allegedly different entity. (ROA.328.) He
argued that the District Court lacked jurisdiction over him, and the
Internal Revenue Code did not apply to him, because he did not reside
in the District of Columbia and thus was not “a citizen or resident of the
United States,” as opposed to “the United States of America.” (ROA.327332.) Trowbridge supported his filing only with an affidavit in which he
asserted that the Government had not produced evidence showing that
he had been born or resided in the District of Columbia. (ROA.333336.) He did not contend that he had paid the tax liabilities at issue or
that he lacked an ownership interest in the real property.
By stipulation, the Government recognized the interest of the
Montgomery County Tax Office in the real property with respect to ad
valorum taxes, penalties, and interest, and the Tax Office agreed to
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entry of judgment forfeiting the property to the Government and
providing for payment of the Tax Office’s interest before that of the
United States. (ROA.339-341.)
After the District Court denied Trowbridge’s motion to dismiss the
complaint (ROA.347), Trowbridge filed two such additional motions to
dismiss the complaint (ROA.348-359, ROA.360-367), which the court
also denied (ROA.380). Thereafter, Trowbridge filed a “formal
challenge of Plaintiff’s allegation that Defendant resides within the
jurisdiction of the Court” (ROA.382) and an offer “to discharge in full
the tax liability alleged in such action upon alleged plaintiff United
States of America’s demonstration that Defendant is a citizen or
resident of the United States” (ROA.386); an “objection” (ROA.391-401)
to the court’s denial of his motions to dismiss; and an “objection to
denial of due process of law” (ROA.402-410) that questioned “the court’s
competence to pass upon the subject-matter of this suit” (ROA.407).
3.
The District Court’s ruling and judgment
Trowbridge did not appear at the May 21, 2014 hearing on the
pending motions, despite having been notified. (ROA.411, 534.) At the
hearing, the District Court stated that it “conclude[d] as a matter of law
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that North Harris County is part of the United States” and that “the
United States” and “the United States of America” were the same
entity. (ROA.535.) Noting that the Tax Court’s decisions respecting
Trowbridge’s tax liabilities at issue were entered 11 years previously,
and that Trowbridge had “done nothing constructive by way of
negotiation or payment” respecting those liabilities, but had been
“obstreperous” and “dishonest,” the court instructed the Commissioner’s
counsel to prepare an order of sale of the real property. (ROA.537-538.)
On May 22, 2014, the District Court entered a final judgment
(ROA.412) and, on May 23, 2014, an amended final judgment
(ROA.413). In the amended final judgment, the court held that the
Government: (i) “[t]akes $3,326,015.01, plus statutory additions
accruing after April 7, 2014, from John P. Trowbridge including his
assumed name Freedom Ventures, UBO”; (ii) had tax liens on
Trowbridge’s property, including the real property at issue; (iii) could
foreclose upon its liens against the real property; and (iv) had “all right,
title, and interest in the property including the right to possession.”
(ROA.413.) The same day, the court issued an order of sale and
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vacature that set forth the terms and conditions of the sale. (ROA.414417.)
Trowbridge appealed. (ROA.418.)4
SUMMARY OF ARGUMENT
The District Court correctly ordered the tax assessments for
Trowbridge’s 1993 through 1997 tax years reduced to judgment. The
United States Tax Court (affirmed by this Court) had determined that
Trowbridge owed tax deficiencies and penalties for those years in
decisions that are res judicata in this proceeding. The Government
presented certified transcripts of account for Trowbridge’s 1993 through
1997 tax years that established that that the assessments of the
deficiencies and penalties determined by the Tax Court were lawfully
made and that those assessments (and accrued interest) remained
unpaid. Trowbridge, on the other hand, presented no evidence calling
into question the transcripts’ accuracy or validity.
Trowbridge moved in the District Court for a stay of the order of
sale (ROA.419-22), which the court denied (ROA.435). On May 29,
2014, Trowbridge moved in this Court for a stay of the order of sale
(ROA.437-487), which this Court denied on June 4, 2014 (ROA.505).
4
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The District Court also correctly ordered foreclosure of the tax
liens arising from the unpaid assessments for 1993 through 1997
against the real property, in which Trowbridge held an ownership
interest. When a taxpayer fails to pay a tax liability after notice of
assessment and demand for payment, a lien for the unpaid tax arises
automatically and attaches to all property and rights to property of the
taxpayer. Here, the Government presented evidence showing that the
IRS properly sent notice and demand to Trowbridge, and that he held
an ownership interest in the property, a fact that Trowbridge did not
dispute.
Finally, the District Court acted well within its discretion in
entering an order of sale of the real property. The Supreme Court has
stated that “the exercise of limited equitable discretion in individual
cases can take into account both the Government’s interest in prompt
and certain collection of delinquent taxes and the possibility that
innocent third parties will be unduly harmed by that effort.” United
States v. Rodgers, 461 U.S. 677, 709 (1983). There was no evidence
that, without sale of the property, the Government would be able to
recover the portion of the unpaid tax liabilities that the sale proceeds
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represent, and there was no evidence that an innocent third party
would be injured by the sale.
On appeal, Trowbridge advances only frivolous arguments that
were rejected by the District Court in the course of these proceedings.
He contends that the Code does not apply to him, and the District Court
lacked jurisdiction over him, because United States Code Titles 26 and
28 “are not national but municipal legislation of the District of
Columbia municipal corporation” and he “neither resides nor is
domiciled in nor a legal resident of the District of Columbia.” (Br. 1112.) These nonsensical arguments have been repeatedly rejected by the
courts, including this Court.
The District Court’s judgment is correct and should be affirmed.
ARGUMENT
THE DISTRICT COURT PROPERLY ORDERED THAT
THE ASSESSMENTS OF TROWBRIDGE’S TAX
LIABILITIES FOR 1993 THROUGH 1997 BE
REDUCED TO JUDGMENT, THE RELATED TAX
LIENS FORECLOSED, AND THE PROPERTY SOLD,
WITH PROCEEDS TO BE APPLIED TO THE TAX
LIABILITIES
Standard of review
This Court’s review of a summary-judgment decision is de novo.
Bluebonnet Hotel Ventures, LLC. v. Wells Fargo Bank, N.A., 754 F.3d
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272, 275 (5th Cir. 2014); DuPree v. Saunders, 588 F.3d 282, 286 (5th
Cir. 2009). An order of sale is reviewed for abuse of discretion. See
United States v. Rodgers, 461 U.S. 677, 706 (1983).
A.
Introduction
The United States brought this action to reduce to judgment more
than $3 million in unpaid tax liabilities assessed against Trowbridge for
1993-1997, to foreclose upon the related tax liens against the real
property, and to sell the property to satisfy, in part, the unpaid tax
liabilities. The District Court reduced the assessments to judgment
based on the decisions of the United States Tax Court determining that
Trowbridge was liable for the deficiencies at issue, the Government’s
submission of transcripts of Trowbridge’s tax accounts showing that the
assessments were properly made and remained unpaid, and
Trowbridge’s failure to offer any countervailing evidence with respect to
the correctness of the assessments. The court also ordered the related
tax liens foreclosed upon the real property based on the Government’s
evidence of Trowbridge’s ownership of the property, which Trowbridge
did not dispute. The District Court’s amended judgment reducing the
assessments to judgment and ordering foreclosure of the related tax
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liens was correct, and its subsequent order of sale of the property was a
proper exercise of its discretion.
B.
The tax assessments were properly reduced to
judgment
In this case, Trowbridge was assessed for unpaid tax liabilities in
amounts that, as of April 7, 2014, totaled $3,326,015.01. (ROA.131149.) Tax assessments made by the IRS are presumed to be correct,
and the taxpayer bears the burden of overcoming the presumption. See
United States v. Fior d’Italia, Inc., 536 U.S. 238, 242-43 (2002); United
States v. Janis, 428 U.S. 433, 440-41 (1976); Affiliated Foods, Inc. v.
Commissioner, 154 F.3d 527, 530 (5th Cir. 1998). The assessments
against Trowbridge were made following adjudication of the tax
deficiencies and penalties at issue here by the Tax Court in earlier
decisions that were affirmed by this Court. See Trowbridge v.
Commissioner, T.C. Memo. 2003-164, 2003 WL 21278475 (2003)
(determining deficiencies for years 1991-1995), aff’d, 378 F.3d 432 (5th
Cir. 2004); Trowbridge et al. v. Commissioner, T.C. Memo. 2003-165,
2003 WL 21278414 (2003) (determining tax deficiencies for 1996 and
1997), aff’d, 101 F. App’x 3 (5th Cir. 2004). (See ROA.150-204.) These
decisions are res judicata as to the liabilities at issue here.
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Res judicata, or claim preclusion, “is the venerable legal canon
which proclaims that a valid and final judgment precludes a second suit
between the same parties on the same claim or any part thereof.”
Medina v. INS, 993 F.2d 499, 503 (5th Cir. 1993). The doctrine “insures
the finality of judgments and thereby conserves judicial resources.”
United States v. Shanbaum, 10 F.3d 305, 310 (5th Cir. 1994). Res
judicata applies where four conditions are present: (i) the parties are
identical or in privity; (ii) the judgment in the prior action was rendered
by a court of competent jurisdiction; (iii) the prior action was concluded
by a final judgment on the merits; and (iv) the same claim or cause of
action was involved in both actions. Duffie v. United States, 600 F.3d
362, 372 (5th Cir. 2010); Test Masters Educational Services, Inc. v.
Singh, 428 F.3d 559, 571 (5th Cir. 2005).
A final decision of the Tax Court is res judicata respecting a tax
liability determined by that court and is not subject to collateral attack
in a later proceeding. United States v. Davenport, 484 F.3d 321, 326-27
(5th Cir. 2007). Accordingly, res judicata prevented Trowbridge from
defending against this suit brought by the Government to enforce tax
liabilities that were previously determined against him by the Tax
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Court. See, e.g., Shanbaum, 10 F.3d at 313-14 (in Government’s suit to
reduce tax assessments to judgment and foreclose related tax liens
against property, prior Tax Court decision was res judicata to existence
and amount of the tax liabilities that were at issue in both cases);
United States v. Maxwell, 459 F.2d 22, 23 (5th Cir 1972) (same).
In this case, to demonstrate that proper assessments had been
made following the Tax Court decisions, the Government introduced
certified transcripts of account for Trowbridge’s 1993-1997 tax years.
(ROA.130-149.) An account transcript maintained by the IRS is
probative evidence in and of itself and, in the absence of contrary
evidence, is sufficient to establish that assessments were duly made and
to support a judgment reducing the assessments shown to judgment.
See United States v. Burnett, 452 Fed. App’x 569, 570 (5th Cir. 2011);
United States v. McCallum, 970 F.2d 66, 71 (5th Cir. 1992); Stuart v.
United States, 337 F.3d 31, 35 (1st Cir. 2003); United States v. Chila,
871 F.2d 1015, 1017-18 (11th Cir. 1989). The account transcripts here
showed that the taxes at issue were duly assessed and recorded and
that adequate notice and demand were promptly made. They further
showed that Trowbridge remained indebted to the United States for
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unpaid balances of tax, penalties, and interest in the amounts shown.
Because Trowbridge did not come forth with contrary admissible
evidence to rebut the presumption of correctness of the unpaid amounts
set forth on the account transcripts, the Government was entitled to
judgment as a matter of law for the unpaid assessed balances shown,
together with statutory interest and penalties accruing to the date of
payment.
C.
The foreclosure of the liens against Trowbridge’s
real property was proper
When a taxpayer fails to pay a tax liability after receiving notice
of assessment and demand for payment, a lien for the unpaid taxes
automatically arises in favor of the United States on all property and
rights to property belonging to the taxpayer and continues until the
liability is satisfied or the statute of limitations bars collection. I.R.C.
§§ 6321, 6322; United States v. Cache Valley Bank, 866 F.2d 1242, 1244
(10th Cir. 1989). A federal tax lien is perfected upon assessment, and
further action need not be taken. United States v. Vermont, 377 U.S.
351, 352 (1964). The lien attaches not only to property and rights to
property belonging to the taxpayer at the time of assessment, but also
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to all property and rights to property the taxpayer thereafter acquires.
See United States v. McDermott, 507 U.S. 447, 448 (1993).
Code Section 7403(a) authorizes the Government to bring an
action to enforce a lien “to subject any property, of whatever nature, of
the delinquent, or in which he has any right, title, or interest, to the
payment of such tax.” Section 7403(b) provides that “[a]ll persons
having liens upon or claiming any interest in the property involved in
such action shall be made parties thereto.” The suit is a plenary action
in which the court “shall . . . adjudicate all matters involved therein and
finally determine the merits of all claims to and liens upon the
property.” I.R.C. § 7403(c); see also United States v. Rodgers, 461 U.S.
677, 680-82 (1983); United States v. National Bank of Commerce, 472
U.S. 713, 720 (1985).
In this case, tax liens corresponding to the assessments made
against Trowbridge for his 1993 through 1997 tax years arose upon
assessment, notice and demand for payment, and failure to pay, and
attached to all of his property and rights to property, including the real
property at issue here. The Government provided the warranty deed
and deed of trust dated April 25, 2005, and recorded on May 5, 2005,
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that transferred the property to Trowbridge. (ROA.205-210.) The
Government recorded its notices of tax lien securing the tax liabilities
at issue in the real property records of Montgomery County, Texas, on
or about July 7, 2011, and October 2, 2012. (ROA.122-129.) On October
25, 2012, after the tax assessments were made and the notices of
federal tax lien were filed, a contract purporting to transfer the
property from Trowbridge to Freedom Ventures, UBO, was filed with
the Montgomery County Clerk’s Office. (ROA.211-214.) By the time
Trowbridge thus attempted to transfer the property to his selfcontrolled “unincorporated business organization,” however, the tax
liens had already attached to that property. Accordingly, any transfer
to the trust, regardless of validity, was done subject to the tax liens
already attached and recorded. See Cache Valley Bank, 866 F.2d at
1245 (a transfer “does not affect the lien because no matter into whose
hands the property goes, the property passes cum onere, or with the lien
attached”) (citing United States v. Bess, 357 U.S. 51, 57 (1958)).
Freedom Ventures made no appearance in the proceedings before the
District Court, and there is, in fact, no evidence in the record of its
existence apart from the contract, which Trowbridge signed both for
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himself and for Freedom Ventures. Accordingly, pursuant to I.R.C.
§ 7403, the tax lien was properly ordered foreclosed against the
property.
D.
The District Court did not abuse its discretion in
ordering the sale of the real property
As the Supreme Court has observed, I.R.C. § 7403 “permits, but
does not require, the court to order a judicial sale” of property in which
a delinquent taxpayer holds an interest. United States v. Brosnan, 363
U.S. 237, 244 (1960). This discretion, however, is quite limited.
Rodgers, 461 U.S. at 706. In Rodgers, the Supreme Court noted that
“the use of the power granted by § 7403 is not the act of an ordinary
creditor, but the exercise of a sovereign prerogative, incident to the
power to enforce the obligations of the delinquent taxpayer himself, and
ultimately grounded in the constitutional mandate to lay and collect
taxes.” Id. at 697. The Court noted that “the exercise of limited
equitable discretion in individual cases can take into account both the
Government’s interest in prompt and certain collection of delinquent
taxes and the possibility that innocent third parties will be unduly
harmed by that effort.” Id. at 709. But the Court recognized that there
are “virtually no circumstances . . . in which it would be permissible to
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refuse to authorize a sale simply to protect the interests of the
delinquent taxpayer himself or herself.” Ibid.
In this case, judgment had been entered against Trowbridge for
the taxes underlying the Governments liens. Trowbridge had continued
to refuse to make payment of the federal income taxes that the Tax
Court, affirmed by this Court, has held to be due. See Trowbridge v.
Commissioner, T.C. Memo. 2003-164, 2003 WL 21278475 (2003)
(determining deficiencies for years 1991-1995), aff’d, 378 F.3d 432 (5th
Cir. 2004); Trowbridge et al. v. Commissioner, T.C. Memo. 2003-165,
2003 WL 21278414 (2003) (determining tax deficiencies for 1996 and
1997), aff’d, 101 F. App’x 3 (5th Cir. 2004). There was no evidence that,
absent the sale of the property, the Government would be able to
recover the part of this liability that the sale proceeds represent.
Accordingly, the District Court issued an order of sale, with the
proceeds to be distributed as set forth in the order, which also set forth
proposed conditions for the sale. The tax liabilities had been long
outstanding, and there is no evidence of possible injury to innocent
third parties. Accordingly, the District Court properly ordered the
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property sold, with the proceeds to be applied towards Trowbridge’s
unpaid tax liabilities for the years at issue.
E.
Trowbridge’s arguments are frivolous
Trowbridge did not argue before the District Court, and does not
argue before this Court, that he paid the tax deficiencies that the Tax
Court (affirmed by this Court) determined that he owed. Nor has he
claimed that he lacked an ownership interest in the real property at
issue. Accordingly, these arguments should be deemed waived.
Hannah v. United States, 523 F.3d 597, 600 n.1 (5th Cir. 2008); Miller v.
Nationwide Life Ins. Co., 391 F.3d 698, 701 n.1 (5th Cir. 2004).
Rather, Trowbridge argues that the Internal Revenue Code does
not apply to him, and the District Court lacked jurisdiction over him,
because “Title 26 U.S.C. and Title 28 U.S.C. Chapter 176 are not
national but municipal legislation of the District of Columbia municipal
corporation.” (Br. 11-12.) He asserts that “Trowbridge neither resides
nor is domiciled in nor a legal resident of the District of Columbia” and
that the District Court erred “[w]hen it concluded as a matter of law
that (n)orth Harris County (Texas) is part of the United States” and
“[w]hen it ruled it has jurisdiction.” (Br. 12.) He contends that the
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terms “state” and “United States” as used in those statutes refer only to
the District of Columbia and to U.S. territories and not to “the United
States of America,” the constitutional union that includes Texas. (Br.
30-39.) Trowbridge argues that a United States District Court is a
“territorial court” under Article IV of the Constitution that exercises
jurisdiction only over the District of Columbia, as opposed to an Article
III “constitutional court” with authority in Texas. (Br. 42-43.) He also
argues that, as a resident of Texas, he is not subject to federal income
taxation. (Br. 46.)
Trowbridge’s contentions are nonsensical, based on “‘shopworn
arguments characteristic of tax-protestor rhetoric that has been
universally rejected by this and other courts.’” Stearman v.
Commissioner, 436 F.3d 533, 537 (5th Cir. 2006). In the United States
Constitution, as in Titles 26 and 28 of the United States Code and in
common speech, “the United States” is another, shorter way of referring
to the United States of America. See, e.g., Constitution of the United
States, Preamble (by “We the People of the United States”), Art. 1, § 1
(establishing “a Congress of the United States”), Art. II, § 1 (vesting the
executive power in “a President of the United States”); Art. III, § 1
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(vesting “[t]he judicial power of the United States” in the Supreme
Court and such inferior courts as Congress may establish); 14th
Amendment (“[a]ll persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the United States
and of the State wherein they reside”).
Courts have repeatedly recognized that the Code imposes a tax on
the taxable income of all individuals who, like Trowbridge, are citizens
or residents of the United States. See United States v. Price, 798 F.2d
111, 113 (5th Cir. 1986) (“[t]he citizens of Texas are subject to the
Federal Tax Code”); United States v. Beale, 574 F.3d 512, 519 n.3 (8th
Cir. 2009) (taxpayer’s “scheme of United States citizenship, within
which the federal government cannot tax the income of citizens of the
several states unless they are federal employees or freed slaves, has
been rejected time and again”); Caniff v. Commissioner, 1995 WL
216861, at *1 (7th Cir. 1995) (“[t]he tax power applies fully to each and
every of the fifty United States”); United States v. Gerads, 999 F.2d
1255, 1256 (8th Cir. 1993) (arguments that the district court lacked
“inland jurisdiction” and that taxpayers are not citizens of the United
States but rather “Free Citizens of the Republic of Minnesota,” are
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frivolous and warrant sanctions); United States v. Sloan, 939 F.2d 499,
501 (7th Cir. 1991) (taxpayer’s argument “that he is not subject to the
jurisdiction of the laws of the United States is simply wrong”); United
States v. Collins, 920 F.2d 619, 629 (10th Cir. 1990) (the Code imposes a
“direct nonapportioned tax upon United States citizens throughout the
nation, not just in federal enclaves”); Lonsdale v. United States, 919
F.2d 1440, 1448 (10th Cir. 1990) (rejecting as “lacking in legal merit
and patently frivolous” the argument that “the authority of the United
States is confined to the District of Columbia”); In re Becraft, 885 F.2d
547, 549 n.2 (9th Cir. 1989) (claimed “inapplicability of the federal
income tax laws to a resident of one of the states . . . has no semblance
of merit”). See also Treas. Reg. § 1.1-1(a)(1) (26 C.F.R.).
Trowbridge’s argument that the District Court lacked jurisdiction
over this case is equally frivolous. Jurisdiction in the District Court
was authorized under 28 U.S.C. §§ 1340 and 1345 and I.R.C. §§ 7402
and 7403, which provide such jurisdiction for a suit brought by the
United States to collect taxes. The courts, including this Court, have
rejected as frivolous arguments that the district courts lack jurisdiction
over tax actions against residents of the states. For example, in United
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States v. Henderson, 209 Fed. App’x 401, 402 (5th Cir. 2006), this Court
held that 26 U.S.C. §§ 7602(a) and 7604, which authorize the issuance
and enforcement of IRS summonses, “are federal laws that the district
court has jurisdiction to consider under 28 U.S.C. § 1331.” The Court
recognized that “[t]he United States District Court for the Southern
District of Texas is an Article III court established by Congress. See 28
U.S.C. § 124.” Ibid. It further recognized that the district court had
personal jurisdiction over the taxpayer “because of his domicile in the
jurisdiction” and that the taxpayer’s “claim that he is not a citizen of the
United States is frivolous.” Id. at 402 n.1. See also, e.g., United States
v. Masat, 948 F.2d 923, 934 (5th Cir. 1991) (rejecting as frivolous
defendant’s argument that district court lacked subject-matter
jurisdiction over criminal tax action and personal jurisdiction over him
because he was a “non-citizen,” a “non-resident,” and a “freeman”);
United States v. Sileven, 985 F.2d 962, 970 (8th Cir. 1993) (rejecting as
“plainly frivolous” argument that district court lacked jurisdiction
because taxpayer was not “a federal citizen”); United States v.
Saunders, 951 F.2d 1065, 1068 (9th Cir. 1991) (“Congress has expressly
directed federal district courts to hear tax enforcement matters. See
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26 U.S.C. §§ 7402(b), 7604(a); 28 U.S.C. § 1340”); United States v. Ward,
833 F.2d 1538, 1539 (11th Cir. 1987) (rejecting taxpayer’s argument
“that the United States has jurisdiction over only Washington, D.C., the
federal enclaves within the states, and the territories and possessions of
the United States”).
The District Court correctly rejected Trowbridge’s arguments,
which are based on time-worn tax-defiance rhetoric that has been
repeatedly rejected by the courts. As this Court has remarked when
confronted with similar arguments, there was “no need to refute these
arguments with somber reasoning and copious citation of precedent; to
do so might suggest that these arguments have some colorable merit.”
Crain v. Commissioner, 737 F.2d 1417, 1417 (5th Cir. 1984).5
Contemporaneously with this brief, the Government is filing a
separate motion for appellate sanctions against Trowbridge under
28 U.S.C. § 1912 and Fed. R. App. P. 38.
5
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CONCLUSION
For the foregoing reasons, the judgment of the District Court is
correct and should be affirmed.
Respectfully submitted,
TAMARA W. ASHFORD
Acting Assistant Attorney General
/s/ Carol Barthel
ROBERT W. METZLER
CAROL BARTHEL
Attorneys
Tax Division
Department of Justice
Post Office Box 502
Washington, D.C. 20044
(202) 514-3938
(202) 514-2921
Of Counsel:
KENNETH MAGIDSON
United States Attorney
SEPTEMBER 2014
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CERTIFICATE OF SERVICE
It is hereby certified that, on this 18th day of September, 2014,
that:
• this brief was filed with the Clerk of the United States Court of
Appeals for the Fifth Circuit by using the CM/ECF system;
• all required privacy redactions have been made in accordance
with Local Rule 25.2.13;
• the document has been scanned for viruses with the most recent
version of a commercial virus scanning program and is free of
viruses;
• the electronic and paper submissions are identical as required by
Local Rule 25.2.1.
I further certify that, on September 18, 2014, I have mailed the
foregoing brief by First Class Mail, postage prepaid, to the following
non-CM/ECF participant, addressed as follows:
Dr. John Parks Trowbridge, Jr.
9816 Memorial Blvd. #205
Humble, Texas 77338
/s/ Carol Barthel
CAROL BARTHEL
Attorney
_
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CERTIFICATE OF COMPLIANCE WITH RULE 32(A)
Certificate of Compliance with Type-Volume Limitation, Typeface
Requirements, and Type Style Requirements
Case No.
14-20333
_
1. This brief complies with the type-volume limitation of Fed. R.
App. P. 32(a)(7)(B) because:
[X] this brief contains 5,653 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or
[]
this brief uses a monospaced typeface and contains [state the
number of] lines of text, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R.
App. P. 32(a)(5) and the type style requirements of Fed. R. App. P.
32(a)(6) because:
[X] this brief has been prepared in a proportionally spaced
typeface using Microsoft Word 2010 in 14-point Century
Schoolbook, or
[]
this brief has been prepared in a monospaced typeface using
[state name and version of word processing program] with
[state number of characters per inch and name of type style].
/s/ Carol Barthel
_
Attorney for the United States of America _
Dated: September 18, 2014
_
844260.1
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN PARKS TROWBRIDGE, JR.,
Defendant-Appellant
)
)
)
)
)
)
)
)
)
No. 14-20333
APPELLEE’S MOTION FOR SANCTIONS
The United States of America, appellee herein, through its
counsel, respectfully requests that John Parks Trowbridge, Jr.
(“Trowbridge”), appellant herein, be sanctioned $8,000 pursuant to 28
U.S.C. § 1912 and Rule 38 of the Federal Rules of Appellate Procedure
for maintaining a frivolous appeal. The appellee suggests that this
motion be decided by the same panel that hears the merits of the
appeal.
STATEMENT
The United States brought this suit against Trowbridge in the
District Court for the Southern District of Texas, seeking to collect
delinquent federal taxes owed by Trowbridge for his 1993 through 1997
tax years. (ROA.8-20.) To that end, the Government sought: (i) to
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-2reduce to judgment federal income-tax assessments for the years at
issue, the unpaid balances of which (as of September 1, 2013) totaled
$3,286,335.47; (ii) to foreclose upon related tax liens of the United
States against a parcel of real property (the “real property”) in which
Trowbridge claimed an ownership interest; and (iii) to obtain a judicial
sale of the real property, with the proceeds of the sale to be distributed
according to the relative priorities of the parties’ claims. As is required
in a suit seeking foreclosure of a federal tax lien, the Government also
named Freedom Ventures, UBO, and the Montgomery County Tax
Office as defendants, because these entities might have claimed an
interest in or lien on the real property. See Internal Revenue Code of
1986 (26 U.S.C.) (“I.R.C.”) § 7403(b).
In his response to the Government’s complaint, Trowbridge (a
Texas resident) asserted that the Government had not shown that he
was “born in a State or the United States” or that he “is subject to the
jurisdiction of the United States in this matter.” (ROA.58.) He further
asserted that the Government had not produced proof of “the debt
alleged” or evidence that he owed tax in the amounts stated or that the
real property was subject to foreclosure. (ROA.58.) The District Court
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-3construed this response, captioned “Conditional Acceptance and
Demand for Proof or Withdrawal of Claim,” as the answer of both
Trowbridge and Freedom Ventures, UBO. (ROA.91, 100.)
The Government moved for summary judgment. (ROA.114-120.)
In support, the Government noted that the tax liabilities had previously
been adjudicated in the United States Tax Court.1 The Government
provided copies of the notices of federal tax lien respecting these
liabilities (ROA.122-129); IRS transcripts for Trowbridge for the years
at issue showing that taxes had been assessed and notices sent and that
tax liabilities remained unpaid (ROA.130-149); the warranty deed and
deed of trust transferring the real property to Trowbridge (ROA.205210); and a contract purportedly transferring the real property from
Trowbridge to Freedom Ventures, UBO, signed by Trowbridge for
Trowbridge et al. v. Commissioner, T.C. Memo. 2003-164, 2003
WL 21278475 (determining deficiencies for years 1991-1995 and
imposing $25,000 sanction for maintaining a proceeding primarily for
delay), on appeal, No. 04-60029 (5th Cir.), appeal dismissed, June 3,
2004; Trowbridge, et al. v. Comissioner, T.C. Memo. 2003-165, 2003 WL
21278414 (2003) (determining tax deficiencies for 1996 and 1997 and
imposing $25,000 sanction for maintaining a proceeding primarily for
delay), aff’d 378 F.3d 432 (5th Cir. 2004) (affirming liability
determination and sanction and imposing additional $6,000 sanction for
pursuing a frivolous appeal).
1
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-4himself and as “Managing Trustee” of Freedom Ventures (ROA.211214).
In his opposition to the Government’s motion (ROA.291-338),
Trowbridge did not contend that his tax liabilities had been paid or
compromised or that he lacked an ownership interest in the real
property. Rather, he argued that counsel for “the United States” was
not authorized to represent “the United States of America.” (ROA.328.)
He asserted that the District Court lacked jurisdiction over him, and
the Internal Revenue Code did not apply to him, because he did not
reside in the District of Columbia and thus was not “a citizen or
resident of the United States,” as opposed to “the United States of
America.” (ROA.327-332.) He made numerous other filings reiterating
these arguments. (ROA.107-113, 348-359, 360-367, 382, 386, 391-401,
402-410.)
Trowbridge did not appear at the May 21, 2014 hearing on the
Government’s motion for summary judgment. (ROA.411, 534.) At the
hearing, the District Court stated that it “conclude[d] as a matter of law
that North Harris County [Texas] is part of the United States” and that
“the United States” and “the United States of America” were the same
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-5entity. (ROA.535.) Noting that the Tax Court’s decisions respecting
Trowbridge’s tax liabilities at issue were entered 11 years previously,
and that Trowbridge had “done nothing constructive by way of
negotiation or payment” respecting those liabilities, but had been
“obstreperous” and “dishonest,” the court instructed the Commissioner’s
counsel to prepare an order of sale of the real property. (ROA.537-538.)
On May 23, 2014, the District Court entered an amended final
judgment that reduced Trowbridge’s unpaid tax liabilities for 1993
through 19997 to judgment and ordered that the Government could
foreclose the related tax liens upon the real property. (ROA.413.) The
same day, the court issued an order of sale and vacature that set forth
the terms and conditions of the sale. (ROA.414-417.)
Trowbridge filed and served his opening brief in this Court on
August 18, 2014.2
Trowbridge moved in the District Court for a stay of the order of
sale (ROA.419-420), which the court denied (ROA.435). On May 29,
2014, Trowbridge moved in this Court for a stay of the order of sale
(ROA.437-487), which this Court denied on June 4, 2014 (ROA.505).
2
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-6DISCUSSION
Courts of appeals have discretion under 28 U.S.C. § 1912 and Fed.
R. App. P. 38 to award sanctions to an appellee, including attorneys’
fees and single or double costs, where the appellant raises frivolous and
baseless arguments such as those made by Trowbridge here. An appeal
is frivolous if it lacks a factual basis, if it advances arguments that are
not warranted by existing law or a good-faith argument for the
alteration of existing law, or it is taken for an improper purpose. See
Casper v. Commissioner, 805 F.2d 902, 907 (10th Cir. 1986). “Sanctions
are appropriate when the result of an appeal is obvious and the
arguments of error are wholly without merit.” Grimes v. Commissioner,
806 F.2d 1451, 1454 (9th Cir. 1986).
The Government’s position with respect to Trowbridge’s
arguments on appeal is fully addressed in its answering brief, which is
being submitted simultaneously with this motion. As noted in that
brief, Trowbridge’s arguments on appeal, like his arguments in the
District Court, are frivolous, without basis in fact or law. Sanctions
thus are warranted in the instant appeal.
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-7Trowbridge argues that the Internal Revenue Code does not apply
to him, and the District Court lacked jurisdiction over him, because
“Title 26 U.S.C. and Title 28 U.S.C. Chapter 176 are not national but
municipal legislation of the District of Columbia municipal corporation.”
(Br. 11-12.) He asserts that “Trowbridge neither resides nor is
domiciled in nor a legal resident of the District of Columbia” and that
the District Court erred “[w]hen it concluded as a matter of law that
(n)orth Harris County (Texas) is part of the United States” and “[w]hen
it ruled it has jurisdiction.” (Br. 12.) He contends that the terms
“state” and “United States” as used in those statutes refer only to the
District of Columbia and to U.S. territories and not to “the United
States of America,” the constitutional union that includes Texas. (Br.
30-39.) Trowbridge argues that a United States District Court is a
“territorial court” under Article IV of the Constitution that exercises
jurisdiction only over the District of Columbia, as opposed to an Article
III “constitutional court” with authority in Texas. (Br. 42-43.) He also
argues that, as a resident of Texas, he is not subject to federal income
taxation. (Br. 46.)
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-8Trowbridge’s contentions are nonsensical, based on “‘shopworn
arguments characteristic of tax-protestor rhetoric that has been
universally rejected by this and other courts.’” Stearman v.
Commissioner, 436 F.3d 533, 537 (5th Cir. 2006). In the United States
Constitution, as in Titles 26 and 28 of the United States Code and in
common speech, “the United States” is another, shorter way of referring
to the United States of America. See, e.g., Constitution of the United
States, Preamble (by “We the People of the United States”), Art. 1, § 1
(establishing “a Congress of the United States”), Art. II, § 1 (vesting the
executive power in “a President of the United States”); Art. III, § 1
(vesting “[t]he judicial power of the United States” in the Supreme
Court and such inferior courts as Congress may establish); 14th
Amendment (“[a]ll persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the United States
and of the State wherein they reside”).
Courts have repeatedly recognized that the Code imposes a tax on
the taxable income of all individuals who, like Trowbridge, are citizens
or residents of the United States. See United States v. Price, 798 F.2d
111, 113 (5th Cir. 1986) (“[t]he citizens of Texas are subject to the
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-9Federal Tax Code”); United States v. Beale, 574 F.3d 512, 519 n.3 (8th
Cir. 2009) (taxpayer’s “scheme of United States citizenship, within
which the federal government cannot tax the income of citizens of the
several states unless they are federal employees or freed slaves, has
been rejected time and again”); Caniff v. Commissioner, 1995 WL
216861, at *1 (7th Cir. 1995) (“[t]he tax power applies fully to each and
every one of the fifty United States”); United States v. Gerads, 999 F.2d
1255, 1256 (8th Cir. 1993) (arguments that the district court lacked
“inland jurisdiction” and that taxpayers are not citizens of the United
States but rather “Free Citizens of the Republic of Minnesota” are
frivolous and warrant sanctions); United States v. Sloan, 939 F.2d 499,
501 (7th Cir. 1991) (taxpayer’s argument “that he is not subject to the
jurisdiction of the laws of the United States is simply wrong”); United
States v. Collins, 920 F.2d 619, 629 (10th Cir. 1990) (the Code imposes a
“direct nonapportioned tax upon United States citizens throughout the
nation, not just in federal enclaves”); Lonsdale v. United States, 919
F.2d 1440, 1448 (10th Cir. 1990) (rejecting as “lacking in legal merit
and patently frivolous” the argument that “the authority of the United
States is confined to the District of Columbia”); In re Becraft, 885 F.2d
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-10547, 549 n.2 (9th Cir. 1989) (claimed “inapplicability of the federal
income tax laws to a resident of one of the states . . . has no semblance
of merit”). See also Treas. Reg. § 1.1-1(a)(1) (26 C.F.R.).
Trowbridge’s argument that the District Court lacked jurisdiction
over this case is equally frivolous. Jurisdiction in the District Court
was authorized under 28 U.S.C. §§ 1340 and 1345 and I.R.C. §§ 7402
and 7403, which provide such jurisdiction for a suit brought by the
United States to collect taxes. The courts, including this Court, have
rejected as frivolous arguments that the district courts lack jurisdiction
over tax actions against residents of the states. For example, in United
States v. Henderson, 209 F. App’x 401, 402 (5th Cir. 2006), this Court
held that 26 U.S.C. §§ 7602(a) and 7604, which authorize the issuance
and enforcement of IRS summonses, “are federal laws that the district
court has jurisdiction to consider under 28 U.S.C. § 1331.” The Court
recognized that “[t]he United States District Court for the Southern
District of Texas is an Article III court established by Congress. See 28
U.S.C. § 124.” Ibid. It further recognized that the district court had
personal jurisdiction over the taxpayer “because of his domicile in the
jurisdiction” and that the taxpayer’s “claim that he is not a citizen of the
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-11United States is frivolous.” See also, e.g., United States v. Masat, 948
F.2d 923, 934 (5th Cir. 1991) (rejecting as frivolous defendant’s
argument that district court lacked subject-matter jurisdiction over
criminal tax action and personal jurisdiction over him because he was a
“non-citizen,” a “non-resident,” and a “freeman”); United States v.
Sileven, 985 F.2d 962, 969 (8th Cir. 1993) (rejecting as “plainly
frivolous” argument that district court lacked jurisdiction because
taxpayer was not “a federal citizen”); United States v. Saunders, 951
F.2d 1065, 1068 (9th Cir. 1991) (“Congress has expressly directed
federal district courts to hear tax enforcement matters. See 26 U.S.C.
§§ 7402(a), 7604(a); 28 U.S.C. § 1340”); United States v. Ward, 833 F.2d
1538, 1539 (11th Cir. 1987) (rejecting taxpayer’s argument “that the
United States has jurisdiction over only Washington, D.C., the federal
enclaves within the states, and the territories and possessions of the
United States”).
Trowbridge’s arguments are based on time-worn tax-defiance
rhetoric that has been repeatedly rejected by the courts. As this Court
has remarked when confronted with similar arguments, there was “no
need to refute these arguments with somber reasoning and copious
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-12citation of precedent; to do so might suggest that these arguments have
some colorable merit.” Crain v. United States, 737 F.2d 1417, 1418 (5th
Cir. 1984).
Trowbridge, a medical doctor, is an educated man who should
have been aware that the arguments he was making are frivolous.
(ROA.518.) His “pro se status is not a license to litter the dockets of the
federal courts with ridiculous allegations.” Parker v. Commissioner, 117
F.3d 785, 787 (5th Cir. 1997).
We note, moreover, that Trowbridge is no stranger to frivolous
arguments. In Trowbridge et al. v. Commissioner, T.C. Memo. 2003164, 2003 WL 21278475, in which the Tax Court sustained Trowbridge’s
tax liabilities for 1991-1995, Trowbridge made “a convoluted argument
that subjecting [him] to the same rate of tax as Federal employees
constitutes impermissible ‘disparate treatment’” and asserted that his
“status as a nonjuristic person, a Texas state Citizen,” deprived the Tax
Court of jurisdiction over him. 2003 WL 21278475, at *4, *5. Observing
that Trowbridge had “emphasized frivolous arguments” and “instituted
and maintained these proceedings for delay,” that court imposed a
$25,000 sanction against him under I.R.C. § 6673(a)(1). Id. at *10.
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-13Trowbridge appealed the Tax Court’s decision to this Court,
withdrawing his appeal after the Government moved for sanctions
against him pursuant to 28 U.S.C. § 1912 and Fed. R. App. P. 38.
Trowbridge et al. v. Commissioner, No. 04-60029 (5th Cir.), appeal
dismissed, June 3, 2004.
Again in Trowbridge, et al. v. Commissioner, T.C. Memo. 2003165, 2003 WL 21278414 (2003), Trowbridge challenged the Tax Court’s
jurisdiction over him, “a nonjuristic person, a Texas state Citizen.”
2003 WL 21278414, at *5. The Tax Court upheld his 1996-1997 tax
liabilities and imposed sanctions because Trowbridge had advanced
“frivolous arguments” and “instituted and maintained these proceedings
for delay.” Id. at *10. On appeal, Trowbridge argued that the Tax
Court lacked jurisdiction “because ‘Article I administrative courts are
prohibited from hearing any issue At Law which has been enumerated
in the Constitution only for the province of Article III courts’; that he is
not a ‘resident’ of Texas or a ‘taxpayer’ subject to federal tax laws; that
he has ‘denied and rebutted any presumption of the existence of any
contracts or commercial agreements which create an attachment of an
equity relationship that would establish an admiralty or equity
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-14jurisdiction’; that he has ‘forfeited, waived, rejected, declined, and
refused to voluntarily accept any and all benefits from the United
States’; and that he ‘objects to the use of Federal Reserve Notes to
discharge debts.’” Trowbridge v. Commissioner, 378 F.3d 432, 433 (5th
Cir. 2004). This Court affirmed the Tax Court’s liability determination
and sanction and imposed an additional $6,000 sanction against
Trowbridge “for pursuing a frivolous appeal.” Ibid.
In tax cases involving frivolous appeals, several courts, including
this Court, have imposed a flat damages fee as a sanction under Fed. R.
App. P. 38 in lieu of requesting the Government to undertake a specific
computation of its expenses on a case-by-case basis. See Trowbridge,
378 F.3d at 433; Parker, 117 F.3d at 787; McDougal v. Commissioner,
818 F.2d 453, 455 (5th Cir. 1987); Stelly v. Commissioner, 804 F.2d 868,
870-71 (5th Cir. 1986); Cohn v. Commissioner, 101 F.3d 486, 486-87 (7th
Cir. 1996); Wilcox v. Commissioner, 848 F.2d 1007, 1009 (9th Cir. 1988);
Schoffner v. Commissioner, 812 F.2d 292, 294 (6th Cir. 1987); Casper,
805 F.2d at 906-07. “[I]mposing a lump sum sanction saves the
government the additional cost of calculating its expenses, and also
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-15saves the court the time and expense of reviewing the submission of
costs.” Parker, 117 F.3d at 787.
According to the records of the Tax Division of the Department of
Justice, the average expense in attorney salaries and other costs
incurred by this office in the defense of frivolous taxpayer appeals in
which sanctions were awarded during the period 2009-2011 was more
than $12,500. 3 The Government, therefore, respectfully requests that
the Court award it $8,000 as a lump-sum sanction pursuant to Fed. R.
App. P. 38. See, e.g., Montero v. United States, 409 F. App’x 738 (5th
Cir. 2011) (granting the Government’s motion for $8,000 in sanctions);
Houseal v. Commissioner, 435 F. App’x 567 (8th Cir. 2011) (same);
Braquest v. Commissioner, 336 F. App’x 432 (5th Cir. 2009) (same);
Wallis v. Commissioner, 203 F. App’x 591, 594 (5th Cir. 2006) (same);
Bates v. Commissioner, 401 F. App’x 247 (9th Cir. 2010) (same); Boggs
v. Commissioner, 569 F.3d 235, 238 (6th Cir. 2009) (same); Cuartero v.
United States Attorney General, 295 F. App’x 378 (2d Cir. 2008) (same);
In making this computation, we have eliminated from
consideration instances in which significantly greater amounts of
attorney time were devoted to the case than are typically reported for
such cases.
3
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-16Cargill v. Commissioner, 272 F. App’x 756 (11th Cir. 2008) (same);
Hilvety v. Commissioner, 216 F. App’x 582 (7th Cir. 2007) (same). 4 See
also Taylor v. Commissioner, 350 F. App’x 913, 916 (5th Cir. 2009)
(imposing sanctions of $16,000, double the amount sought by the
Government, for prosecuting a frivolous appeal where pro se taxpayers
were on notice that their arguments were frivolous). Although such an
award might not cover all of the costs attending this litigation, it would
nevertheless at least partially compensate the Government for the
We are aware that the Seventh Circuit in Szopa v. United
States, 460 F.3d 884, 887 (7th Cir. 2006), established a “presumptive”
sanction of $4,000 in frivolous tax appeals presented to that court, and
awarded the Government the $8,000 that it requested in that case only
because the taxpayer was a repeat offender. See also Wheeler v.
Commissioner, 528 F.3d 773, 782-85 (10th Cir. 2008). We note,
however, that Trowbridge is also a repeat offender and thus would
warrant sanctions of $8,000 even in the Seventh Circuit. But we
continue to believe that our request for $8,000 in sanctions is warranted
in this case — whether or not Trowbridge was a repeat offender — and
in frivolous tax-defier cases in general. As we pointed out in one of our
appellate court filings in Szopa, “[w]e have . . . long seen it as our
responsibility, even in the most frivolous cases, to spend the time
necessary to parse . . . the often convoluted and unintelligible
arguments of tax protestors so that their cases might be presented to
the courts in as coherent a fashion as possible.” See Szopa, 460 F.3d at
886. We think that that time is well spent if it aids a court’s decisionmaking process, as we believe it does here.
4
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-17direct costs of defending the appeal and might deter future frivolous
appeals.
CONCLUSION
This Court should exercise its discretion and impose sanctions
against Trowbridge, so that the Government can be partially
compensated for the costs of defending this frivolous appeal. Sanctions
of $8,000 would be appropriate. Moreover, given Trowbridge’s prior
sanctionable conduct, the Court may wish to consider imposing
additional sanctions as it might deem appropriate.
Respectfully submitted,
TAMARA W. ASHFORD
Acting Assistant Attorney General
/s/ Carol Barthel
ROBERT W. METZLER
CAROL BARTHEL
Attorneys
Tax Division
Department of Justice
Post Office Box 502
Washington, D.C. 20044
(202) 514-3938
(202) 514-2921
This 18th day of September, 2014.
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-18IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN PARKS TROWBRIDGE, JR.,
)
)
)
)
)
)
)
)
No. 14-20333
DECLARATION
Carol Barthel of the Appellate Section, Tax Division, Department
of Justice, states:
The facts set forth in the accompanying motion for sanctions are
true to the best of my knowledge and belief.
I declare under penalty of perjury pursuant to 28 U.S.C. § 1746
that the foregoing is true and correct. Executed this 18th day of
September, 2014, at Washington, D.C.
/s/ Carol Barthel
CAROL BARTHEL
Attorney
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-19CERTIFICATE OF SERVICE
It is hereby certified that, on this 18th day of September, 2014,
that:
• this motion was filed with the Clerk of the United States Court of
Appeals for the Fifth Circuit by using the CM/ECF system;
• all required privacy redactions have been made in accordance
with Local Rule 25.2.13;
• the document has been scanned for viruses with the most recent
version of a commercial virus scanning program and is free of
viruses;
• the electronic and paper submissions are identical as required by
Local Rule 25.2.1.
I further certify that, on September 18, 2014, I have mailed the
foregoing motion by First Class Mail, postage prepaid, to the
following non-CM/ECF participant, addressed as follows:
Dr. John Parks Trowbridge, Jr.
9816 Memorial Blvd. #205
Humble, Texas 77338
/s/ Carol Barthel
CAROL BARTHEL
Attorney
_
859132.1
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 14-20333
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN PARKS TROWBRIDGE, JR.,
Defendant-Appellant.
_______________________
ON APPEAL FROM THE JUDGMENT OF
THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS,
HOUSTON DIVISION
_______________________
REPLY BRIEF FOR THE APPELLANT
_______________________
Tamara Wenda Ashford, Robert Joel Branman, Robert W. Metzler, Carol A.
Barthel, Kenneth Magidson, Joshua David Smeltzer, and Lynn Nettleton Hughes
are co-workers and officers of the same Federal corporation, the District of
Columbia municipal corporation,1 28 U.S.C. § 3002(1), (2), (8), (15) (App. 44–46;
1
“An Act to provide a Government for the District of Columbia,” ch. 62, sec. 1, 16 Stat.
419, February 21, 1871; later legislated in “An Act Providing a Permanent Form of Government
for the District of Columbia,” ch. 180, 20 Stat. 102, June 11, 1878, to remain and continue as a
municipal corporation (brought forward from the Act of 1871, as provided in the Act of March 2,
1877, amended and approved March 9, 1878, Revised Statutes of the United States Relating to
see also ROA.329–330), feigning ignorance of law—i.e., refusing to recognize
certain material portions of the law fatal to their cause, a denial of due process of
law—in order to defraud appellant John Parks Trowbridge, Jr. (“Trowbridge”) of
his property under color of law, office, and authority via an unauthorized sham
legal proceeding protected from general scrutiny and detection by means of a
culture of silence under a policy of “Never respond, confirm, or deny.”
The employer of all aforesaid officers, the District of Columbia municipal
corporation, is situated in the legislative branch of the de jure constitutional
government established March 4, 1789 (n. 1, supra).
Legislative-branch officers Tamara Wenda Ashford, Robert Joel Branman,
Robert W. Metzler, Carol A. Barthel, Kenneth Magidson, and Joshua David
Smeltzer are posing as officers of the executive branch of said de jure
constitutional government and Lynn Nettleton Hughes, of the judicial branch
thereof, under color of office and authority, and opposing appellant John Parks
Trowbridge’s appeal brief (the “Appeal”) and prosecuting and hearing the instant
lawsuit in fraudem legis under color of law, in violation of the jurisdictional
provisions of the Constitution and breach of the constitutional doctrine of
separation of powers.
the District of Columbia . . . 1873–’74, sec. 2, p. 2); as amended by the Act of June 28, 1935, 49
Stat. 430, ch. 332, sec. 1 (Title 1, Section 102, District of Columbia Code (1940)). (ROA.312;
App. 16–17).
2
RE IGNORANCE OF LAW
It is indisputable that appellee United States of America (the “Appellee”)
holds appellant John Parks Trowbridge, Jr. (“Trowbridge”) accountable for
knowledge of the law; to wit:
Ignorantia excusator, non juris sed facti. Ignorance of fact may
excuse, but not ignorance of law.” Bouvier’s Law Dictionary, 3rd rev.,
8th ed., p. 2136.
Ignorance of law consists of the want of knowledge of those laws
which it is our duty to understand, and which every man is presumed
to know. Id. at 1488.
Counsel for Appellee and all other aforesaid legislative-branch officers are
no less accountable.
The principal provisions of law material to the allegations in the Complaint
and Issue I in Trowbridge’s appeal brief (the “Appeal”) are the Title 26 U.S.C.
terms “United States,” “State,” and “includes” (ROA.324–326, App. 36), and the
Title 28 U.S.C. Chapter 176 terms material to the nature and jurisdiction of the trial
court and Issue II in the Appeal, “United States,” “counsel for the United States,”
“court,” “debt,” and “judgment.” (App. 44–46).
The ROA and Appeal reflect fidelity to the controlling definition and
meaning of every aforesaid material statutory term on the part of Trowbridge and
ignorance thereof on the part of counsel for Appellee and all other aforesaid
legislative-branch officers and there is no evidence to the contrary.
3
THE TRIAL COURT
kangaroo court. 1. A self-appointed tribunal or mock court in which
the principles of law and justice are disregarded, perverted, or
parodied. . . . 2. A court or tribunal characterized by unauthorized or
irregular procedures, esp. so as to render a fair proceeding impossible.
3. A sham legal proceeding. Black’s Law Dictionary, 7th ed., p. 259.
Whereas, Trowbridge resides in Harris County, Texas (ROA.153, 181); and
Whereas, there is no legal evidence that Texas is a part of the geographical
United States (ROA.324–326; App. 36–39); and
Whereas, there is no evidence that Trowbridge is of a species of individual2
who is a nonresident alien or citizen or resident of the political or geographical
United States (id.; App. 39–49; ROA.333–336); and
Whereas, there is no provision in the Constitution that authorizes Congress
to exercise power of personal legislation without the geographical areas described
in Articles 1 § 8(17) and 4 § 3(2) thereof; and
Whereas, there is no provision in the Constitution that authorizes exercise of
personal jurisdiction without the geographical areas described in Articles 1 § 8(17)
and 4 § 3(2) thereof; and
Whereas, only territorial courts “created by virtue of the sovereign
congressional faculty, granted under article 4, 3, of that instrument [the
2
(2) the term “individual” means a citizen of the United States or an alien lawfully
admitted for permanent residence; 5 U.S.C. § 552a(a) Records maintained on
individuals.
4
Constitution]” (ROA.395, 407; App. 40) are authorized to exercise personal
jurisdiction; and
Whereas, the trial court is a court authorized by Congress to exercise
personal jurisdiction (App. 42–49).
Wherefore, the trial court is a District of Columbia municipal corporation
legislative Article IV territorial tribunal of plenary jurisdiction masquerading as a
constitutional Article III judicial court of limited jurisdiction and conducting a
sham legal proceeding in concert with co-worker corporate attorneys posing as
national-executive-branch officers in violation of the jurisdictional provisions of
the Constitution and breach of the constitutional doctrine of separation of powers,
for the purpose defrauding Trowbridge of Trowbridge’s property under color of
law, office, and authority.
The Response constitutes additional fraud on the part of District of
Columbia municipal corporation attorneys.
THE QUESTION OF FRIVOLOUSNESS
Plaintiff-Appellee’s Response provides, in pertinent part (Emphasis added in
all citations.):
Pursuant to Fifth Circuit Rule 28.2.3, counsel for the appellee believe
that oral argument is not necessary in this case because the appellant
is proceeding pro se and his arguments are frivolous. (Resp. i).
. . . Trowbridge raised only frivolous arguments in opposition to the
Government’s motion. (Resp. 3).
5
The Government moved for summary judgment. Opposing,
Trowbridge raised only frivolous arguments, asserting that the District
Court lacked jurisdiction over him, and the Internal Revenue Code did
not apply to him, because he did not reside in “the District of
Columbia or one of the territories” . . . (Resp. 4).
On appeal, Trowbridge advances only frivolous arguments . . . (Resp.
14).
E. Trowbridge’s arguments are frivolous (Resp. 24).
Trowbridge’s argument that the District Court lacked jurisdiction over
this case is equally frivolous. (Resp. 27).
Bouvier’s Law Dictionary, 3rd rev., 8th ed. (“Bouvier’s 8th”) provides, in
pertinent part of page 1317:
FRIVOLOUS. . . .
An answer cannot be stricken out on the ground that it is frivolous,
where an extended argument or illustration is required to demonstrate
its frailty . . .
Whereas, the principal argument (Resp. 14–29) in the Response is that
Trowbridge’s Appeal is frivolous, it is reasonable to characterize said argument as
extended—and Trowbridge’s Appeal cannot be stricken out on the ground that it is
frivolous.
Black’s Law Dictionary, 1st ed. provides, in pertinent part of page 522:
FRIVOLOUS. An answer or plea is called “frivolous” when it is
clearly insufficient on its face, and does not controvert the material
points of the opposite pleading, and is presumably interposed for
purposes of delay or to embarrass the plaintiff . . . Peacock v.
Williams (C. C.) 110 Fed. 916.
6
Ignorance of law excuses not. For those in a position of public trust and
charged with making, pronouncing, or applying the law, such as the co-authors of
the Response, ignorance of law, feigned or actual, constitutes, minimally, denial of
due process of law, gross negligence, i.e., fraud, and misfeasance in public office.
It is unknown what definition or meaning of “United States” (or any other
aforesaid material term) counsel for Appellee use in the Response.
Whereas, inspection of the ROA, Appeal, and Response evinces that (1)
Trowbridge relies on and cites the controlling Title 26 U.S.C. and Title 28 U.S.C.
Chapter 176 definition of “United States” and all other aforesaid material terms at
all times, and (2) authors of the Response (a) propound and argue an unknown,
undisclosed meaning of “United States” and every other aforesaid material term, to
the exclusion of the controlling definition of each, and (b) cite opinions from cases
about the meaning of “United States” and other statutory terms that likewise are
devoid of citation of or reference to the respective controlling definition or
meaning: Any argument or case citation which purports to opine about the
meaning of a particular statutory term to the exclusion of the controlling definition
thereof is clearly insufficient on its face for ignorance of law.
Neither argument nor opinion supersedes or supplants the definition or
meaning of a statutory term as provided by law—which all men are presumed to
know and understand. Whereas, the material points of Trowbridge’s pleading
7
consist in the controlling definition and meaning of the aforesaid terms: The
principal argument of the Response that Trowbridge’s Appeal is frivolous, is itself
a frivolous argument for ignorance of the law, albeit feigned, and should be
stricken out therefor, regardless of the fact that it is fraudulent.
ANOMALIES EXPLAINED
1.
Trowbridge on February 4, 2014, offers to discharge in full the debt
alleged in the Complaint upon Kenneth Magidson’s production of evidence that
Trowbridge is a citizen or resident of the United States.3 (ROA.59). To said offer
Kenneth Magidson stands mute and rather opts for four months of pre-trial filings
and motions, ostensibly a waste of the trial court’s time. (ROA.101–102). At no
time does Trowbridge withdraw said offer.
2.
Response authors feel the need to cite 41 cases in support of the
principal argument in the Response that the Appeal is frivolous.
The reason for both anomalies is the same: There is no evidence that
Trowbridge is a citizen or resident of the United States and the ROA is devoid of
the same and the attorneys prosecuting the lawsuit and opposing the Appeal are
dependent on complicity in the fraud and the culture of silence in order to prevail.
Fraud is facilitated by “group agreement” among District of Columbia
municipal corporation officers and supporters as to the meaning of “United States”
3
Said offer is a constructive avoidance for fraud and is the reason the trial court construes
it to be an answer to the Complaint, Fed. R. Civ. P. 8(c)(1). (ROA.91).
8
and the other aforesaid material statutory terms, irrespective of any controlling
definition, and is hidden in plain sight via the culture of silence; to wit: It is
extremely difficult for a target to avoid being defrauded if no one prosecuting or
hearing the lawsuit or opposing the Appeal will acknowledge or apply the law.
As cited supra, “Ignorantia excusator, non juris sed facti. Ignorance of fact
may excuse, but not ignorance of law” (Bouvier’s Law Dictionary, 3rd rev., 8th ed.,
p. 2136), and it is immaterial whether the ignorance of law is actual or feigned.
“Quod per recordum probatum, non debet esse negatum. What is proved by
the record, ought not to be denied” (id. at 2159), and the ROA and Response prove
ignorance of the law on the part of the District of Columbia municipal corporation
judge and attorneys involved in the instant lawsuit and Response, constituting,
minimally, gross negligence (fraud) and misfeasance in public office.
RESPONSE AUTHORS’ M.O.: CONNIVANCE WITH ACTUAL CONGRESSIONAL
LEGISLATIVE FRAUD, SUBVERSION OF THE CONSTITUTION BY INFERENCE
The Supreme Court explains the constitutional difference between, on the
one hand, the states of the Union and, on the other, Columbia and the Territories:
On the part of the plaintiffs, it has been urged that Columbia is a
distinct political society, and is therefore “a state” according to the
definitions of writers on general law.
This is true. But as the act of Congress obviously uses the word
“state” in reference to the term as used in the Constitution, it becomes
necessary to inquire whether Columbia is a state in the sense of that
instrument. The result of that examination is a conviction that the
members of the American confederacy only are the states
contemplated in the Constitution.
9
. . . These clauses show that the word “state” is used in the
Constitution as designating a member of the union, and excludes from
the term the signification attached to it by writers on the law of
nations. Hepburn & Dundas v. Ellzey, 6 U.S. 445, 452, 2 Cranch 445,
2 L.Ed. 332 (1805). (ROA.302–304; App. 17).
It has been attempted to distinguish a Territory from the district of
Columbia; but the court is of opinion, that this distinction cannot be
maintained. They may differ in many respects, but neither of them is a
state, in the sense in which that term is used in the constitution. New
Orleans v. Winter, 1 Wheat. (U. S.) 91, 4 L. Ed. 44 (1816).
(ROA.304–305; App. 18).
Title 26 U.S.C. provides, in pertinent part:
Chapter 21 - FEDERAL INSURANCE CONTRIBUTIONS ACT
Subchapter A - Tax on Employees
§ 3121 - Definitions
. . . (e) State, United States, and citizen
(1) For purposes of this chapter—
The term “State” includes the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, and
American Samoa.
Whereas, (1) the Supreme Court in Hepburn and New Orleans, supra, is
unequivocal that neither Columbia nor any Territory is a state [sic] as that term is
used in the Constitution, and (2) Congress in 26 U.S.C. § 3121(e)(1) define the
term of art “State” so as to comprehend expressly only the District of Columbia
and certain of the Territories (ROA.313–314 and App. 31–32; ROA.324–326 and
App. 35–36) exclude impliedly every commonwealth united by and under
authority of the Constitution and admitted into the Union: Response authors
contradict both the Supreme Court and Congress by propounding by way of
10
inference and feigned ignorance of the law that the Title 26 U.S.C. term “State”
comprehends Texas and other members of the Union as well as “the District of
Columbia” and “U.S. territories,” i.e., that the body politic of Texas or Iowa is the
constitutional / political equivalent of that of Guam or Puerto Rico, evincing
connivance with actual congressional legislative fraud and sedition and constructive
treason to the de jure constitutional government of March 4, 1789; to wit:
He [Trowbridge] contends that the terms “state [sic4]” and “United
States” as used in those statutes [Title 26 U.S.C. and Title 28 U.S.C.
Chapter 176] refer only to the District of Columbia and to U.S.
territories and not to . . . the constitutional union that includes Texas.
(Resp. 24–25).
Treason is a breach of allegiance, and can be committed by him only
who owes allegiance, either perpetual or temporary. The words,
therefore, “owing allegiance to the United States,” in the first section,
are entirely surplus words, which do not, in the slightest degree, affect
its sense. The construction would be precisely the same, were they
omitted. United States v. Wiltberger, 18 U. S. 76, 97, Sup. Ct. (1820).
The reason Response authors feign ignorance of the controlling definition
and meaning of all aforesaid statutory terms and cite only cases that likewise are
devoid of reference thereto and rather “propound arguments,” i.e., dissemble and
prevaricate, exclusively is because there is no legal or competent evidence of that
which they need to prove, i.e., that Trowbridge is of a species of individual who is
a non-resident alien or citizen or resident of the political or geographical Title 28
U.S.C. Chapter 176 or Title 26 U.S.C. United States.
4
So in Response; should be “State”.
11
For Response authors to disclose their “legal reasoning” as to why the
District of Columbia municipal corporation has a right of action against
Trowbridge’s property would be to admit of the aforesaid crimes and high crimes
and work against interest.
The degree of artfulness of the Response authors’ argument that the Appeal
is frivolous and the capacity of the culture of silence to keep a lid on the offenses
evidenced herein will determine whether other District of Columbia municipal
corporation officers and supporters will be willing to risk their career in support of
the Response authors by way of the specter of subjection to public scrutiny of the
record of any ratification of the Response; to wit: “In maleficio ratihabitio
mandato comparatur. In a tort, ratification is equivalent to authority,” Bouvier’s
Law Dictionary, 3rd rev., 8th ed., p. 2138.
CONCLUSION
Response authors are liable to criminal prosecution for perpetrating the
Response under color of law, office, and authority, and said Response should be
stricken out as frivolous and fraudulent.
Date:
October 6, 2014
Respectfully submitted,
_________________________________
John Parks Trowbridge, Jr.
9816 Memorial Boulevard #205
Humble, Texas
(281) 540-2329
12
Case: 14-20333
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00512798851
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Date Filed: 10/09/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN PARKS TROWBRIDGE, JR.,
Defendant-Appellant
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No. 14-20333
APPELLEE’S REPLY TO APPELLANT’S RESPONSE TO
MOTION FOR SANCTIONS AND APPELLEE’S RESPONSE TO
APPELLANT’S MOTION FOR SANCTIONS
John Parks Trowbridge, Jr. (“Trowbridge”), appellant herein, has
filed a response to the motion of the appellee, the United States of
America, that he be sanctioned for maintaining a frivolous appeal.
Trowbridge included with his response a motion requesting that the
United States and its attorneys and the judge of the District Court in
this matter be sanctioned with respect to the Government’s actions and
the District Court’s ruling in these proceedings. The Government
hereby replies to Trowbridge’s response to its motion for sanctions,
which motion should be granted. The Government also responds to
Trowbridge’s motion for sanctions, which should be denied.
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-2DISCUSSION
1.
Trowbridge contends that, under applicable law, “‘United
States’ means District of Columbia municipal corporation” and that
“[o]fficers of the District of Columbia municipal corporation . . .
masquerading as officers of the legislative, judicial, and executive
branches of the de jure nation government, . . . enact and enforce ‘laws’
that ‘authorize,’ without constitutional authority, exercise of personal
legislation and jurisdiction over Americans residing” outside the
District of Columbia (Resp. at 3, 4 (emphases in original)). He
characterizes the Government’s attorneys and the District Court judge
in this case as “District of Columbia municipal officers” who refuse to
recognize that the Internal Revenue Code does not apply to him because
he is not a resident of the District of Columbia. (Resp. at 6-7.)
Asserting that this alleged “fraud, denial of due process, connivance,
and culture of silence is systemic” within the Department of Justice, he
requests that the Court: (i) deny the Government’s motion for sanctions;
(i) impose a sanction of $5,000 against the Government; (ii) order that
the judge and attorneys representing the Government be criminally
charged with fraud; and (iii) order the convening of a grand jury to
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-3“root[ ] out the ultimate source of the fraud” he has alleged. (Resp. at 89.)
2.
Trowbridge’s frivolous contentions respecting the alleged
inapplicability of the Internal Revenue Code to him as a resident of
Texas are of a piece with those set out in his principal brief to this
Court. As the Government pointed out in its answering brief, this
Court has repeatedly recognized that the Code imposes a tax on the
taxable income of all individuals who, like Trowbridge, are citizens or
residents of the United States. See Tello v. Commissioner, 143 F. App’x
568, 570 (5th Cir. 2005) (imposing sanctions on taxpayer who argued
that the Commissioner of Internal Revenue had no authority to collect
tax revenue); Parker v. Commissioner, 117 F.3d 785, 787 (5th Cir. 1997)
(imposing sanctions on taxpayers for “ridiculous allegations that the
Internal Revenue Code is the product of an illegal conspiracy”); United
States v. Price, 798 F.2d 111, 113 (5th Cir. 1986) (“[t]he citizens of Texas
are subject to the Federal Tax Code”).
3.
Trowbridge’s argument that the attorneys of the United
States Department of Justice have no authority to represent the federal
government in this case is equally frivolous. As set forth in the
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-4complaint (ROA.8), the Justice Department commenced this action at
the direction of the Attorney General of the United States and at the
request of the Secretary of the Treasury pursuant to I.R.C. § 7401. See
Sullivan v. United States, 348 U.S. 170, 171-71 (1954). Trowbridge did
not challenge that authorization in his answer to the complaint. (See
ROA.56-87.) Contrary to Trowbridge’s assertions (Resp. at 2), the
Justice Department is an agency of the federal government and not of
the District of Columbia government. The Act to Establish the
Department of Justice, ch. 150, 16 Stat. 162 (1870), created the
Department as “an executive department of the government of the
United States,” with the Attorney General as its head, to handle the
Government’s legal business. Within the Department, the Tax Division
handles civil tax litigation like the present case.
4.
Trowbridge’s argument that the District Court lacked
jurisdiction over this case is equally frivolous. As the Government
pointed out in its opening brief (Br. at 2), jurisdiction in the District
Court was authorized under 28 U.S.C. §§ 1340 and 1345 and I.R.C.
§§ 7402 and 7403, which provide such jurisdiction for a suit brought by
the United States to collect taxes. This Court has rejected as frivolous
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-5arguments that the district courts lack jurisdiction over tax actions
against residents of the states. See, e.g., United States v. Henderson,
209 F. App’x 401, 402 (5th Cir. 2006) (holding that “[t]he United States
District Court for the Southern District of Texas is an Article III court
established by Congress” and that the district court had personal
jurisdiction over the taxpayer “because of his domicile in the
jurisdiction” and that the taxpayer’s “claim that he is not a citizen of the
United States is frivolous”); United States v. Masat, 948 F.2d 923, 934
(5th Cir. 1991) (rejecting as frivolous defendant’s argument that district
court lacked subject-matter jurisdiction over criminal tax action and
personal jurisdiction over him because he was a “non-citizen,” a “nonresident,” and a “freeman”).
5.
Trowbridge is undoubtedly aware that his contentions are
baseless. This Court has previously imposed sanctions on Trowbridge
for persisting in frivolous arguments. See Trowbridge v. Commissioner,
378 F.3d 432, 433 (5th Cir. 2004) (sanctioning Trowbridge for making
“frivolous” arguments that the Tax Court lacked jurisdiction “because
‘Article I administrative courts are prohibited from hearing any issue At
Law which has been enumerated in the Constitution only for the
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-6province of Article III courts’; that he is not a ‘resident’ of Texas or a
‘taxpayer’ subject to federal tax laws; that he has ‘denied and rebutted
any presumption of the existence of any contracts or commercial
agreements which create an attachment of an equity relationship that
would establish an admiralty or equity jurisdiction’; that he has
‘forfeited, waived, rejected, declined, and refused to voluntarily accept
any and all benefits from the United States’; and that he ‘objects to the
use of Federal Reserve Notes to discharge debts’”). He has been
similarly sanctioned by the Tax Court for making such arguments. See
Trowbridge et al. v. Commissioner, T.C. Memo. 2003-164, 2003 WL
21278475, at *10 (2003), on appeal, No. 04-60029 (5th Cir.), appeal
dismissed, June 3, 2004; Trowbridge et al. v. Commissioner, T.C. Memo.
2003-165, 2003 WL 21278414, at *10 (2003), aff’d, 378 F.3d 432 (5th
Cir. 2004).
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-7CONCLUSION
For the reasons stated above, the Government’s motion to impose
sanctions against Trowbridge for pursuing a frivolous appeal should be
granted. Trowbridge’s motion for sanctions against the United States
should be denied.
Respectfully submitted,
TAMARA W. ASHFORD
Acting Assistant Attorney General
/s/ Carol Barthel
ROBERT W. METZLER
CAROL BARTHEL
Attorneys
Tax Division
Department of Justice
Post Office Box 502
Washington, D.C. 20044
(202) 514-3938
(202) 514-2921
This 9th day of October, 2014.
866650.1
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-8IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN PARKS TROWBRIDGE, JR.,
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No. 14-20333
DECLARATION
Carol Barthel of the Appellate Section, Tax Division, Department
of Justice, states:
The facts set forth in the accompanying reply and response is true
to the best of my knowledge and belief.
I declare under penalty of perjury pursuant to 28 U.S.C. § 1746
that the foregoing is true and correct. Executed this 9th day of October,
2014, at Washington, D.C.
/s/ Carol Barthel
CAROL BARTHEL
Attorney
866650.1
Case: 14-20333
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00512798851
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Date Filed: 10/09/2014
-9CERTIFICATE OF SERVICE
It is hereby certified that, on this 9th day of October, 2014, that:
• this reply and response was filed with the Clerk of the United
States Court of Appeals for the Fifth Circuit by using the
CM/ECF system;
• all required privacy redactions have been made in accordance
with Local Rule 25.2.13;
• the document has been scanned for viruses with the most recent
version of a commercial virus scanning program and is free of
viruses;
• the electronic and paper submissions are identical as required by
Local Rule 25.2.1.
I further certify that, on October 9, 2014, I have mailed the foregoing
reply and response by First Class Mail, postage prepaid, to the
following non-CM/ECF participant, addressed as follows:
Dr. John Parks Trowbridge, Jr.
9816 Memorial Blvd. #205
Humble, Texas 77338
/s/ Carol Barthel
CAROL BARTHEL
Attorney
_
866650.1
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN PARKS TROWBRIDGE, JR.,
Defendant-Appellant.
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No. 14-20333
APPELLANT’S REPLY TO APPELLEE’S RESPONSE TO
APPELLANT’S MOTION FOR SANCTIONS
Appellee United States of America (the “Appellee”), has filed a response to
the motion of appellant John Parks Trowbridge, Jr. (“Trowbridge”) that, among
other things, Appellee and counsel for Appellee be sanctioned for maintaining a
frivolous and fraudulent response to Trowbridge’s appeal brief (the “Appeal” or
“App.”). Trowbridge hereby replies to Appellee’s response to Trowbridge’s
motion for sanctions, which motion should be granted.
The words of a statute are to be taken in their ordinary and popular
meaning, unless they are technical terms or words of art, in which
case they are to be understood in their technical sense. . . . [Emphasis
added.] Henry Campbell Black, Handbook on the Construction and
Interpretation of the Laws (West Publishing Co.: St. Paul, Minn.,
1896), § 57, 128. (ROA.308).
Linguistic inference canons provide guidelines about what the
legislature likely meant, given its choice of some words and not
others. The linguistic inference canons include classic logical canons
such as expressio unius,42 noscitur a sociis,43 and ejusdem generis.44
Other inferential rules encourage interpreters to follow the ordinary
usage of text unless the legislature has itself defined the word or the
phrase has acquired a technical meaning.45 [Emphasis added.] Jacob
Scott, “Codified Canons and the Common Law of Interpretation,” The
Georgetown Law Journal, Vol. 98, Issue 2, January 2010, 352–353.
(App. 26, 28).
Table 1. Linguistic Inference Canons . . .
. . . Ordinary usage: Follow ordinary usage of terms, unless the
legislature gives them a specified or technical meaning. . . .
Dictionary definition: Follow dictionary definitions of terms, unless
the legislature has provided a specific definition. [Emphasis added.]
Id. at 357. (App. 28).
Contra negantem principia non est disputandum. There is no
disputing against one who denies principles. Bouvier’s Law
Dictionary, 3rd rev., 8th ed., p. 2129.
Appellee’s response to Trowbridge’s motion for sanctions is frivolous and
fraudulent for the same reasons as Appellee’s response brief (the “Response”):
Counsel for Appellee propound by inference some kind of Title 26 U.S.C. or Title
28 U.S.C. Chapter 176 nexus between Trowbridge and the geographical or
political United States, to the exclusion of the controlling definition of the
geographical and political United States in Title 26 U.S.C. and Title 28 U.S.C.
Chapter 176. Cases cited by counsel for Appellee in support of the arguments in
said reply likewise are devoid of reference to either of said controlling definitions.
Counsel for Appellee not only refuse to follow the law, but also attempt to
lead the Court astray into reliance on counsel for Appellee’s own private,
unknown, unwritten version of “law” as to the definition and meaning of “United
States,” by which Trowbridge should be held liable by inference.
2
All of Appellee’s filings evince a defiance and ignorance of material law
that is indispensable to resolution of the allegations in the Complaint and operates
to deny Trowbridge due process of law.
Said law consists of the definition of the Title 26 U.S.C. terms “United
States,” “State,” and “includes”; and the Title 28 U.S.C. Chapter 176 terms
“United States,” “counsel for the United States,” “court,” “debt,” and “judgment.”
That Tamara Wenda Ashford, Robert Joel Branman, Robert W. Metzler, and
Carol A. Barthel (and Kenneth Magidson, Joshua David Smeltzer, and Lynn
Nettleton Hughes) are legally ignorant of the meaning of the respective definition
of every aforesaid statutory term is indisputable—because there is no evidence in
the ROA or any of Appellee’s filings that indicates otherwise.
It is not possible for Trowbridge to receive fair treatment or enjoy due
process of law if every actor prosecuting the instant lawsuit or opposing the instant
appeal is ignorant of / denies the selfsame law upon which each depends for
authority to prosecute or hear said cause or oppose said appeal.
The decision before this Honorable Court is a simple one: whether the Court
should excuse Appellee and counsel for Appellee, plaintiff and counsel for plaintiff
United States of America, and the trial court for documented ignorance of law,
refusal to follow / observe the law, failure to produce evidence of jurisdiction
following proper challenge thereof, and advocacy of an inferred “law” known only
3
to Tamara Wenda Ashford, Robert Joel Branman, Robert W. Metzler, Carol A.
Barthel, Kenneth Magidson, Joshua David Smeltzer, and Lynn Nettleton Hughes
by which Trowbridge should be held liable for the allegations in the Complaint.
CONCLUSION
Appellee’s reply to Trowbridge’s motion for sanctions, like the Response, is
frivolous and fraudulent for the reasons cited hereinabove.
Trowbridge’s motion to impose sanctions against Appellee and counsel for
Appellee for pursuing a frivolous and fraudulent response to Trowbridge’s Appeal
should be granted, as well as all other sanctions recommended in said motion.
Date:
October 14, 2014
Respectfully submitted,
_________________________________
John Parks Trowbridge, Jr.
9816 Memorial Boulevard #205
Humble, Texas
(281) 540-2329
4
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-20333
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
February 3, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
JOHN PARKS TROWBRIDGE, JR.,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
No. 4:14-CV-27
Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
John Parks Trowbridge (“Trowbridge”) appeals the district court’s grant
of summary judgment in favor of the government, which ordered Trowbridge’s
income tax liabilities for 1993 through 1997 reduced to judgment, the
associated tax liens on the real property foreclosed, and the real property sold.
Trowbridge has not contested the validity of the tax liabilities or his ownership
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*
1 of 7
No. 14-20333
of the real property at issue. He has therefore waived those issues. Yohey v.
Collins, 985 F.2d 222, 224–25 (5th Cir. 1993). Instead, Trowbridge argues that
Harris County is not in the United States and that he is not a citizen of the
United States. He contends that this means the district court did not have
subject matter jurisdiction over tax actions against residents of states and that
he is not subject to federal income taxes.
This court has already rejected as frivolous the argument that district
courts lack subject matter jurisdiction over tax actions against residents of
states. United States v. Masat, 948 F.2d 923, 934 (5th Cir. 1991). This court
has also stated that 26 U.S.C. §§ 7602(a) and 7604, which authorize the
issuance and enforcement of IRS summonses, “are federal laws that the district
court has jurisdiction to consider under 28 U.S.C. § 1331.” United States v.
Henderson, 209 F. App’x 401, 402 (5th Cir. 2006). Moreover, 28 U.S.C. § 1340
explicitly grants district courts jurisdiction in internal revenue cases and
28 U.S.C. § 1345 explicitly grants jurisdiction for civil suits commenced by the
United States.
Trowbridge’s argument that he is not a citizen of the United States is
equally frivolous. He presents “shopworn arguments characteristic of taxprotestor rhetoric that has been universally rejected by this and other courts.”
Stearman v. Commissioner, 436 F.3d 533, 537 (5th Cir. 2006). This court has
already held that the “citizens of Texas are subject to the Federal Tax Code.”
United States v. Price, 798 F.2d 111, 113 (5th Cir. 1986). We do not address
his arguments further as there is “no need to refute these arguments with
somber reasoning and copious citation of precedent; to do so might suggest
these arguments have some colorable merit.” Crain v. Commissioner, 737 F.2d
1417 (5th Cir. 1984). They have no merit at all.
This is not the first time Trowbridge has had these frivolous arguments
rejected. In Trowbridge et al. v. Commissioner, T.C. Memo. 2003-164, 2003 WL
2
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No. 14-20333
21278475, Trowbridge made similar arguments in contesting his 1991-1995
tax liabilities. The tax court imposed a $25,000 sanction. In contesting his
1996-1997 tax liabilities, Trowbridge again used similar arguments in the tax
court; he was sanctioned a second time. Trowbridge et al. v. Commissioner,
T.C. Memo. 2003-165, 2003 WL 21278414, at *10. Trowbridge appealed to this
court and once again resorted to frivolous arguments. This court upheld the
tax court’s sanctions and imposed additional sanctions.
Given Trowbridge’s history of frivolous appeals, we GRANT Appellee’s
motion for sanctions pursuant to Fed. R. App. P. 38 in the amount of $8,000.
We also order that Trowbridge be barred from filing any further appeals in this
court until (1) the sanctions awarded by this court are fully paid; and (2) a
district court certifies his appeal as having some arguable merit. See Smith v.
McCleod, 946 F.2d 417, 418 (5th Cir. 1991). Trowbridge’s motions are DENIED
as moot.
Accordingly, the order of the district court is AFFIRMED.
3
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Document: 00512924773
Page: 1
Date Filed: 02/03/2015
Print Form
.00)
No. of Copies
Pages Per Copy
Total Cost
Total $ ________________
Cost per Page*
REQUESTED
Pages per
Document
Cost per Page*
Total Cost
Costs are taxed in the amount of $ _______________
No. of
Documents
ALLOW ED
(If different from amount requested)
By ____________________________________________
Deputy Clerk
LYLE W.CA Y C E , C LERK
*SEE REVERSE SIDE FOR RULES
GOVERNING TAXATION OF COSTS
Attorney for __________________________________________
4 of 7
_____________________________________________________________________
(Signature)
I _____________________________________________________________, do hereby swear under penalty of perjury that the services for which fees have been charged were
incurred in this action and that the services for which fees have been charged were actually and necessarily performed. A copy of this Bill of Costs was this day mailed to
opposing counsel, with postage fully prepaid thereon. This _______________ day of ________________________________, ______________.
State of
County of _________________________________________________
Costs are hereby taxed in the amount of $ _______________________ this ________________________________ day of __________________________, ___________.
Other:
Appellant’s Reply Brief
Appellee’s Brief
Appellant’s Brief
Appendix or Record Excerpts
Docket Fee ($
COSTS TAXABLE UNDER
Fed. R. App. P. & 5 th Cir. R. 39
The Clerk is requested to tax the following costs against: _________________________________________________________________________________________
_______________________________________________ v. __________________________________________ No. _____________________
NOTE: The Bill of Costs is due in this office within 14 days from the date of the
opinion, See FED . R. APP. P. & 5T H CIR . R. 39. Untimely bills of costs must be
accompanied by a separate motion to file out of time, which the court may deny.
BILL OF COSTS
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
Case: 14-20333
Document: 00512924773
Page: 2
Date Filed: 02/03/2015
COSTS
days after service of the bill of costs, unless the court extends the time.
(4) the fee for filing the notice of appeal.
(3) premiums paid for a supersedeas bond or other bond to preserve rights pending appeal; and
(2) the reporter’s transcript, if needed to determine the appeal;
(1) the preparation and transmission of the record;
(e) Costs of Appeal Taxable in the District Court. The following costs on appeal are taxable in the district court for the benefit of the party entitled to costs under this rule:
5 of 7
(3) The clerk must prepare and certify an itemized statement of costs for insertion in the mandate, but issuance of the mandate must not be delayed for taxing costs. If the mandate
issues before costs are finally determined, the district clerk must – upon the circuit clerk’s request – add the statement of costs, or any amendment of it, to the mandate.
(2) Objections must be filed within
(1) A party who wants costs taxed must – within 14 days after entry of judgment – file with the circuit clerk, with proof of service, an itemized and verified bill of costs.
(d) Bill of costs: Objections; Insertion in Mandate.
©) Costs of Copies Each court of appeals must, by local rule, fix the maximum rate for taxing the cost of producing necessary copies of a brief or appendix, or copies of records
authorized by rule 30(f). The rate must not exceed that generally charged for such work in the area where the clerk’s office is located and should encourage economical methods of
copying.
(b) Costs For and Against the United States. Costs for or against the United States, its agency or officer will be assessed under Rule 39(a) only if authorized by law.
(4) if a judgment is affirmed in part, reversed in part, modified, or vacated, costs are taxed only as the court orders.
(3) if a judgment is reversed, costs are taxed against the appellee;
(2) if a judgment is affirmed, costs are taxed against the appellant;
(1) if an appeal is dismissed, costs are taxed against the appellant, unless the parties agree otherwise;
(a) Against Whom Assessed. The following rules apply unless the law provides or the court orders otherwise;
F ED . R. A P P . P. 39.
39.3 Tim e for Filing Bills of Costs. The clerk must receive bills of costs and any objections within the times set forth in F ED . R. A PP . P. 39(D ). See 5 T H C IR . R. 26.1.
39.2 Nonrecovery of Mailing and Com m ercial Delivery Service Costs. Mailing and commercial delivery fees incurred in transmitting briefs are not recoverable as taxable costs.
39.1 Taxable Rates. The cost of reproducing necessary copies of the brief, appendices, or record excerpts shall be taxed at a rate not higher than $0.15 per page, including cover,
index, and internal pages, for any for of reproduction costs. The cost of the binding required by 5 T H C IR . R. 32.2.3that mandates that briefs must lie reasonably flat when open shall
be a taxable cost but not limited to the foregoing rate. This rate is intended to approximate the current cost of the most economical acceptable method of reproduction generally
available; and the clerk shall, at reasonable intervals, examine and review it to reflect current rates. Taxable costs will be authorized for up to 15 copies for a brief and 10 copies
of an appendix or record excerpts, unless the clerk gives advance approval for additional copies.
FIFTH CIRCUIT RULE 39
Case: 14-20333
United States Court of Appeals
FIFTH CIRCUIT
OFFICE OF THE CLERK
LYLE W. CAYCE
CLERK
TEL. 504-310-7700
600 S. MAESTRI PLACE
NEW ORLEANS, LA 70130
February 03, 2015
MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW
Regarding: Fifth Circuit Statement on Petitions for Rehearing
or Rehearing En Banc
No. 14-20333
USA v. John Trowbridge, Jr.
USDC No. 4:14-CV-27
--------------------------------------------------Enclosed is a copy of the court's decision. The court has entered
judgment under FED R. APP. P. 36. (However, the opinion may yet
contain typographical or printing errors which are subject to
correction.)
FED R. APP. P. 39 through 41, and 5TH Cir. R.s 35, 39, and 41 govern
costs, rehearings, and mandates. 5TH Cir. R.s 35 and 40 require
you to attach to your petition for panel rehearing or rehearing en
banc an unmarked copy of the court's opinion or order.
Please
read carefully the Internal Operating Procedures (IOP's) following
FED R. APP. P. 40 and 5TH CIR. R. 35 for a discussion of when a
rehearing may be appropriate, the legal standards applied and
sanctions which may be imposed if you make a nonmeritorious
petition for rehearing en banc.
Direct Criminal Appeals. 5TH CIR. R. 41 provides that a motion for
a stay of mandate under FED R. APP. P. 41 will not be granted simply
upon request. The petition must set forth good cause for a stay
or clearly demonstrate that a substantial question will be
presented to the Supreme Court. Otherwise, this court may deny
the motion and issue the mandate immediately.
Pro Se Cases.
If you were unsuccessful in the district court
and/or on appeal, and are considering filing a petition for
certiorari in the United States Supreme Court, you do not need to
file a motion for stay of mandate under FED R. APP. P. 41. The
issuance of the mandate does not affect the time, or your right,
to file with the Supreme Court.
The judgment entered provides that appellant pay to appellee the
costs on appeal.
Sincerely,
LYLE W. CAYCE, Clerk
By: _______________________
Rhonda M. Flowers, Deputy Clerk
Enclosure(s)
Ms. Carol A. Barthel
6 of 7
Mr.
Mr.
Mr.
Mr.
Robert Joel Branman
Robert William Metzler
Joshua David Smeltzer
John Parks Trowbridge Jr.
7 of 7
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 14-20333
Summary Calendar
_______________________
D.C. Docket No. 4:14-CV-27
United States Court of Appeals
Fifth Circuit
FILED
February 3, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JOHN PARKS TROWBRIDGE, JR.,
Defendant - Appellant
Appeal from the United States District Court for the
Southern District of Texas, Houston
Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
JUDGMENT
This cause was considered on the record on appeal and the briefs on file.
It is ordered and adjudged that the order of the District Court appealed
from is affirmed.
IT IS ORDERED that defendant-appellant pay to plaintiff-appellee the
costs on appeal to be taxed by the Clerk of this Court.
IT IS FURTHER ORDERED that sanctions pursuant to Fed. R. App. P.
38 in the amount of $8,000 be taxed against Trowbridge. We also order that
Trowbridge be barred from filing any further appeals in this court until the
sanctions awarded by this court are fully paid; and a district court certifies
his appeal as having some arguable merit.
