THE UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
UNITED STATES OF AMERICA, ) Civil Action No
) 05-CV-02xxx-
Petitioner, )
) OPPOSITION TO
v. ) UNITED STATES RESPONSE
) TO RESPONDENTS OBJECTIONS
)
KEN PATRIOT, )
)
Respondent. )
Respondent hereby files this opposition to UNITED STATES RESPONSE TO RESPONDENTS OBJECTIONS Dated May 3, 2006, based on the following reasons:
Respondent, is unschooled in law and notices the court of enunciation of principles as stated in Haines v. Kerner, 404 U.S. 519, wherein the court has directed that those who are unschooled in law making pleadings and/or complaints shall have the court look to the substance of the pleadings rather than in the form, and hereby makes the following pleadings/notices in the above referenced matter without waiver of any defenses. With this fact in mind, Respondent requests this Honorable Court to consider his pleadings in substance.
1. Item No. 1 . The United States met it’s Burden of proof
Response to No. 1: The United States did not meet its Burden of proof. The Respondent does not claim an “improper attestation” but rather NO ATTESTATION. The Law states clearly in 26 USC Sec.7603:
(a) In general
A summons issued under section 6420(e)(2), 6421(g)(2),
6427(j)(2), or 7602 shall be served by the Secretary, by an
attested copy delivered in hand to the person to whom it is
directed, or left at his last and usual place of abode;...(emphasis added)
This fact alone was the main subject of Henderson, not whether it was a first or third party summons. Also the law is very clear, that the twenty day limit to Petition to Quash does not apply to a first party summons:
26 USC Sec.7609
(2) Exceptions
This section shall not apply to any summons -
(A) served on the person with respect to whose liability the
summons is issued, or any officer or employee of such person;
So the raising of this pertinent information should be brought to the Court’s attention as soon as it is discovered. These factors alone present a valid reason first and foremost why the court should refer to the presiding law in the case when looking at applicable case law of which Henderson is.
The Teague Declaration that Plaintiff refers to at bottom of page two of their response, states in paragraph 4;
In accordance with 7603 of Title 26, U.S.C.… “I served an attested copy of the Internal Revenue Summons described in Paragraph (3) above on the Respondent, Ken Patriot by hand delivery to his last and usual place of abode,… (Emphasis added)
This was the second of two summons that were served to me, both of which were missing the attestation. This is a procedural error in service regardless of what document the Petitioner says was served because statute and regulations require an “attested copy” be served. On top of it all Mr. Teague made a third mistake on another document titled “Service of Summons, Notice of Record keepers Certificates”. On that document he checked box No. 2 stating:
“ I certify that I left a copy of the summons which contained the attestation required by §7603 at the last and usual place of abode of the person to whom it was directed … taped to the entrance door”(last 5 words written by his hand in a blank line provided). [emphasis added & copy attached]
Third party summons can be served by certified mail service. In this case he testifies that he taped it to the door, most likely looking squarely at the document, and again he missed the BLANK attestation line. All of these instances were signed under penalties of perjury. This is ample evidence to the contrary, looking at the copies of the summons attached to the Motion to Quash, which is contrary to what the Plaintiff claims on the bottom of page two of their response.
2. Respondent May Not Assert Blanket Fifth Amendment Privilege
Response to No. 2: Respondent answered all questions on the September 27th, 2005 meeting. Agent Teague is mistaken or misleading this Court in declaring so under penalties of perjury. Mr. Teague refused to answer questions about his authority and delegation orders in his chain of command when questioned. These are essential to satisfy due process to Respondent and must be addressed prior to answering as per Ryder v. U.S. There are recordings of the meeting to substantiate this.
In the case of Boyd v U.S., the court stated: "It is our opinion, therefore, that a compulsory production of a man's private papers to establish a criminal charge against him, or forfeit his property, is contrary to the principles of a free government." This case begs the question “How can one be compelled to produce private documents without waiving their Forth and Fifth Amendment rights”?
Respondent has not been issued any use immunity grant by the Department of Justice. Therefore any testimony or compelled production of private documents would violate Constitutional rights. The U.S. Supreme Court ruled that the act of producing documents and information cannot be compelled without a grant of use immunity. There was neither evidence that use immunity had been requested nor granted for documents demanded in the summons. U.S. v. Doe, 465 US 605.
It hardly needs to be pointed out that Congress cannot, and does not, acquire the authority to poke into the records, effects and affairs of any or every American in defiance of the Fourth Amendment; compel speech in defiance of the First; or compel what, for practical purposes, amounts to testimony in defiance of the Fifth; etc.; simply by passing a statute, no matter the purpose or language of that statute. The mere production of records or books that could tend to incriminate or be used against oneself is in defiance of Constitutional guarantees of the people. The Hoffman case was clear that the evidence provided could be used against oneself as a link to a prosecution:
Supreme Court's directive that the Fifth Amendment privilege "not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime." Hoffman v. United States, 341 U.S. 479, 486 (1951);
It is quite clear that with the majority of items listed in the summons have no bearing on a civil case and most likely will be considered for a later criminal case.
In the Lasalle case the nature of the items sought and the wording on the privacy act statement (Pub. 609) make for a well founded concern for criminal prosecution that is real and substantial. There is real evidence of the informal recommendation to prosecute by the Dept. of Justice’s reply of a Freedom of information Act Request (FOIA) made by Respondent. The DOJ response found no document which authorized a civil or criminal investigation under 26 U.S.C. 7401. This is the statute which authorizes any investigation, civil or criminal, instituted by the IRS. The response sent by the Dept. of Justice was sent certified mail, return-receipt-requested, which clearly signifies a gathering of evidence for future action. FOIA responses are rarely sent in this manner except for strict evidence purposes. I have been informed by competent authority that know and can state, that by bringing these enforcement actions, the IRS has already decided to recommend prosecution. If this was a simple civil case, Revenue agents would simply dream up a figure, an outrageously high one, issue a false and inflated Notice of Deficiency, declare that as taxes due and force Respondent or a taxpayer to go to tax court and prove that the money is not owed. The broad and encompassing request in the summons sought to be enforced in this case is highly indicative of the true direction of case. Only 2-3 of the items on the summons attachment pages out of 30-40 listed are the only items required in a civil collection. Many of the documents and material requested have no use whatsoever in a civil case. IRS Manual Supplement 9G-93, the procedural guideline for prosecuting those persons classified by said agency as “tax protestors”, removes any discretion from the individual agents assigned to the case, MS 9G-93, IRM 9383.6 and other IRS procedures on persons similarly labeled as Petitioner, set forth a policy whereby the cases are totally criminal abinitio, to the extent that individual agents and the Service itself have no discretion or authority to compromise whatsoever in these cases. This manual is, by itself, the institutional commitment to prosecute. Those cases lacking criminal prosecution potential will be routed to Service Center Collection Function (MS 9G-93 pg 5). This has not been done.
Respondent denies all presumptions contained in Petitioners response and requests that the Court considers all case sites to be nothing but obiter dictum.
Respondent will supplement this opposition with additional facts shortly.
Respondent certifies that a copy of this pleading was sent to opposing party on this day.
____________________________ Date______________________
Respondent, Pro Se