IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

UNITED STATES OF AMERICA APPELLEE

v. Appeal No. 08-10651-DD

District Court Case No.07-CR-108

SHERRY PEEL JACKSON APPELLANT

AN APPEAL FROM THE JUDGMENT AND COMMITMENT

ORDER IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

CERTAIN ORDERS AND DECISIONS ISSUED

BY THE HONORABLE ORINDA D. EVANS

***********************************

APPELLANT’S OPENING BRIEF

*******************************

Sherry Peel Jackson

At 1560 Fieldgreen Overlook
Stone Mountain, Georgia Republic [30088]
770-981-7758
 CIRCUIT RULE 26.1 DISCLOSURE STATEMENT

Short Caption: USA v. Jackson

To enable the judges to determine whether recusal is necessary or

appropriate, an attorney for a non-governmental party or amicus curiae, or a

private attorney representing a government party, must furnish a disclosure

statement providing the following information in compliance with Circuit Rule

26.1 and Fed. R. App. P. 26.1.

1. The names of all judges on the case:

District Judge Orinda D. Evans

2. The full name of every party that the attorney represents in the case (if the

party is a corporation, you must provide the corporate disclosure information

required by Fed. R. App. P. 26.1 by completing item #3):

Sherry Peel Jackson

3. The names of all law firms whose partners or associates have appeared for

the party in the case (including proceedings in the district court or before an

administrative agency) or are expected to appear for the party in this court:

Larry Becraft, Jeffrey Dickstein

4. If the party or amicus is a corporation:

a. Identify all its parent corporations, if any; and

Certificate 1 of 2
 N/A
ii) list any publicly held company that owns 10% or more of the party’s
or amicus’ stock:
N/A
5. The UNITED STATES OF AMERICA IS THE ACCUSER

Attorney’s signature: /s/ Sherry Peel Jackson Date: May 1, 2008

Attorney’s Printed Name: Sherry Peel Jackson

Please indicate if you are Counsel of Record for the above listed parties.

Yes X No:

Address At 1560 Fieldgreen Overlook Stone Mountain, Georgia Republic [30088]

Phone number: 770-981-7758 Fax Number: N/A

E-Mail Address: N/A

Certificate 2 of 2
 -i-

STATEMENT REGARDING ORAL ARGUMENT

Appellant requests oral argument if such would help this Court decide the

constitutional questions and legal issues herein and in that condition 30 minutes

would probably cover it.

 -ii-

TABLE OF CONTENTS

CIRCUIT RULE 26.1 DISCLOSURE STATEMENT . . . . Certificate 1 of 2

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . -i-

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -ii-

TABLE OF CITATIONS TO AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . -iv-

JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

SUMMARY OF THE ARGUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

APPELLANT'S BRIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

1. There is no “party” with the name “United States of America” for U.S.
Employee Langway to claim “standing” in any “criminal information”
filed in the Clerk’s Office of the United States District Court for the
Northern District of Georgia that would be a recognizable “party” under
Article III, Section 2, Clause 2 to any case or controversy against a Citizen
of the State of Georgia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

2. When the theory of the crimes in a criminal information allege violations

of 26 U.S.C. § 7203 involving “regulations” the charging claim requires
identification of such regulations in the information itself because section
7203 makes several different acts prohibited or required elsewhere within
this punishment provision mandate of Congress . . . . . . . . . . . . . . . . . 22

3. Because of the alteration of theory in the criminal case before sentencing

by Appellant’s accuser, that regulations did not apply to the claims against
 -iii-

Appellant, 26 U.S.C. § 6531 requires the criminal information allege or

plead the exception in order to gain the benefit of the additional 3 years
under the statute of limitations to which it did not do . . . . . . . . . . . . . 27

4. When regulations are involved in the offense conduct of violating 26 U.S.C.

§ 7203, the Paperwork Reduction Act of 1995 protects Appellant from
section 7203 penalties if the information request Form required by such
“regulations” fails to comply with 44 U.S.C. § 3506(c)(1)(B), 3507 and
3512(1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

5. All requests for any information directed at a Citizen of the State of

Georgia from the U.S.’ Internal Revenue Service, as if it were from
Congress itself, is required to provide certain information regarding why
the information is being sought, how the information, once given, is
intended to be used, and whether the obligation to respond by such Citizen
is voluntary or not, before any Citizen of such State may be “required” to
provide such information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

6. The filing of a “criminal information” which resulted in eight years of

deprivation of liberty belonging to Appellant violated the Fifth Amendment
Grand Jury mandate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

7. The common law meaning of the term “penitentiary” in 18 U.S.C. § 4083

is “where felons serve their time” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

8. Congress has no Power in Article III, Section 2, Clause 3, or anywhere else

in the Constitution of the United States, to place the controversy between
U.S. Employee Langway and Appellant, as stated in the “criminal
information” within the Judicial Power of the United States . . . . . . . 50

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

CIR v. CARGILL, 07-14207 (UNPUBLISHED APRIL 2, 2008)(11th Cir.A)DD.1

 -iv-

TABLE OF CITATIONS TO AUTHORITIES

CASELAW

Adler v. Duval County Sch. Bd., 112 F.3d 1475, 1477 (11th Cir. 1997) . . . . . . . 29

Alabama v. U.S. Envtl. Protection Agency, 871 F.2d 1548, 1554 (11th Cir. 1989)19

Alikhani v. U.S., 200 F.3d 732, 734 (11th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . 19

Argentine Republic v. Amerada Hess Shipping, 488 U.S. 428, 436 (1989) . . . . 50

Baldwin v. New York, 399 U.S. 66, 70 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Barkman v. Sanford, 162 F.2d 592 (CA5), cert. denied, 332 U.S. 816 (1947) . . 43

Brazenburg v. Hayes, 408 U.S. 665, 709 (fn. 24) (1972) . . . . . . . . . . . . . . . . . 43,46

Bowen v. First Family Financial Services, 233 F.3d 1331, 1339, 1340 (11th Cir.

2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Callan v. Wilson, 127 U.S. 540, 549 (1888) . . . . . . . . . . . . . . . . . . . . . . . . . . . 42,55

Cargill v. CIR 07-14207 (11th Cir. April 2, 2008)(unpublished) . . . 23,27,28,33,38

Cheek v. U.S., 498 U.S. 192, 201,(1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Cuban American Bar Ass'n, Inc. v. Christopher, 43 F.3d 1412, 1422 (11th Cir.

1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Dole v. United Steelworkers of Am., 494 U.S. 26, 32-33(1990) . . . . . . . . . . . 32,38

Florida Ass'n of Rehab. Facilities, 225 F.3d at 1227 n. 14 . . . . . . . . . . . . . . . . . . 29

Green v. U.S., 356 U.S. 165, 183 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

 -v-

Hallandale Professional Fire Fighters Local 2238 v. City of Hallandale, 922 F.2d

756, 759 (11th Cir. 1991)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Hamling v. U.S., 418 U.S. 87, 117,(1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Harvin v. U.S., 445 F.2d 675, 682 (D.C. Cir. 1971) . . . . . . . . . . . . . . . . . . . . . . . 45

Hotch v. U.S., 14 Alaska 574, 208 F.2d 244 (9th Cir. 1953) . . . . . . . . . . . . . . 33,34

Jaben v. U.S., 381 U.S. 214, 220 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, (1992)) . . . . . . . . . . . . . . 18

Mackin v. U.S., 117 U.S. 348 (1886) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43,46

Moore v. U.S., 91 U.S. 270, 274 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

National Treasury Employees Union v. U.S., 101 F.3d 1423,1427(D.C.Cir. 1996)18

North Carolina v. Rice, 404 U.S. 244, 246(1971) . . . . . . . . . . . . . . . . . . . . . . . . 29

Pennsylvania v. Nelson, 350 U.S. 497, 512 (1956) . . . . . . . . . . . . . . . . . . . . . . . 20

Powell v. McCormack, 395 U.S. 486, 496(1969) . . . . . . . . . . . . . . . . . . . . . . . . . 29

Robinson v. McCune, 536 F.2d 1340, 1342 (10th Cir. 1976) . . . . . . . . . . . . . . . 45

Russell v. U.S., 369 U.S. 749 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Salberg v. U.S. 969 F.2d 379, 384 (7th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . 24

Schick v. U.S., 195 U.S. 65,68 (1904) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53,54

Smith v. Alabama, 124 U.S. 465, 478 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Stirone v. U.S., 361 U.S. 212, 218, (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

 -vi-

Thompson v. Nagle, 118 F.3d 1442 (11th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . 29

Toussie v. U.S., 397 U.S. 112, 114-15,(1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Town of Munster, Ind. v. Sherwin-Williams Co., 27 F.3d 1268, 1271 (7th Cir.

1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

U.S. v. Adkinson, 135 F.3d 1363 (11th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . 25

U.S. v. Argomaniz, 925 F.2d 1349 (11th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . 41

U.S. v. Chesney, 10 F.3d 641 (9th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

U.S. v. Chisum, 502 F.3d 1237 (10th Cir. 2007) . . . . . . . . . . . . . . . . . . . 32,35,38,40

U.S. v. Chromallow American Corp., 158 F.3d 345, 351 (5th Cir. 1998) . . . . . . 37

U.S. v. Collins, 920 F.2d 619, 630, fn. 12 and 13 (10th Cir. 1990) . . . . . . . . . 32,38

U.S. v. Deisch, 20 F.3d 139 (5th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

U.S. v. Goetz, 746 F.2d 705 (11th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . 24,25

U.S. v. Goldstein, 502 F.2d 526 (3rd Cir. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . 47

U.S. v. Harrell, 737 F.2d 971, 981 (11th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . 29

U.S. v. Hatch, 919 F.2d 1394, 1397 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . 33,35

U.S. v. Hanyard, 762 F.2d 1226 (5th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . 45

U.S. v. Hicks, 947 F.2d 1356, 1359 (9th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . 48

U.S. v. Kahl, 583 F.2d 1351, 1355 (5th Cir. 1978) . . . . . . . . . . . . . . . . . . . . . . . . 46

U.S. v. LaSalle Nat'l Bank, 437 U.S. 298(1978) . . . . . . . . . . . . . . . . . . . . . . . . . . 41

 -vii-

U.S. v. Lopez, 514 U.S. 549, 562, (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

U.S. v. McKenzie, 678 F.2d 629, 631 (5th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . 18

U.S. v. Moreland, 258 U.S. 433 (1922) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

U.S. v. Morton, 467 U.S. 822, 828,(1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

U.S. v. Neff, 954 F.2d 698 (11th Cir. 1992) . . . . . . . . . . . . . . . . . . . 22,23,27,28,33

U.S. v. Patridge, 507 F.3d, 1092, 1094-1095 (7th Cir. 2007) . . . . . . . . . . . . . . 24,27

U.S. v. Pease, 240 F.3d 938, 942 (11th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . 24

U.S. v. Prince, 883 F.2d 953, 959 (11th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . 29

U.S. v. Ramos, 666 F.2d 469, 474 (11th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . 24

U.S. v. Ratcliff, 245 F.3d 1246, 1255 (11th Cir. 2001) . . . . . . . . . . . . . . . . . . . . 30

U.S. v. Sigma International, 244 F.3d 841, 856, (11th Cir. 2001) . . . . . . . . . . . . 16

U.S. v. Smith, 866 F.2d 1092 (9th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

U.S. v. Smith, 982 F.2d 757 (2nd Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

U.S. v. Taylor, 828 F.2d 630 (10th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

U.S. v. Williams, 121 F.3d 615 (11th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . 25

U.S. v. Williams, 504 U.S. 36, 49(1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

U.S. v. Wong Kim Ark, 169 U.S. 649, 654 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

U.S. v. Wunder, 919 F.2d 34, 38 (6th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . 33

Valley Forge Christian College v. Americans United for Separation of Church and
 -viii-

State, 454 U.S. 464, 475-76, (1982)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Williams v. Daggett, 377 F. Supp. 1110, 1112 (D.Kan. 1974) . . . . . . . . . . . . . . 45

Workers Party v. Leahy, 145 F.3d 1240, 1244 (11th Cir. 1998) . . . . . . . . . . . . . 18

STATUTORY AUTHORITY/REGULATIONS

18 U.S.C. § 3231 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

18 U.S.C. § 3559(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

18 U.S.C. § 3581 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48,49

18 U.S.C. § 4083 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28,44,45

26 U.S.C. § 7203 . . . . . . . . . . . . . . . . . . . . . . . . . . 1,22,23,26,27,30,33,48,49,51,52

26 U.S.C. § 6001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

26 U.S.C. § 6011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

26 U.S.C. § 6012 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23,27

26 U.S.C. § 6531 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26,28,30

26 U.S.C.A. § 6091(b)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

44 U.S.C. § 3506 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31,39,40,41

44 U.S.C. § 3507 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31,34,40,41

44 U.S.C. § 3512 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31,33,34,37,38,41,48,49

Form 1040 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31,39,40,51

 -ix-

CONSTITUTIONAL PROVISIONS, RULES AND MISC

Article III, Section 2, Clause 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15,18

Article III, Section 2, Clause 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15,57

Article III, Section 2, Clause 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15,21,50,52,57

Article VII, Amendment V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16,43

Article VII, Amendment VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

5 C.F.R. § 1320.5(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

26 CFR § 1.6091 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

S.Rep. No. 930, 96th Cong., 2d Sess. 52, reprinted in 1980 U.S.Code Cong. &

Admin. News 6241, 6292. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

http://www.irs.gov/businesses/small/article/0,,id=109046,00.html . . . . . . . . . . . 36

Fed. Rule Crim. Proc. 7 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

 -1-

JURISDICTIONAL STATEMENT

1. This is an appeal from a judgment of conviction in which Appellant was

sentenced to a term of 8 years of deprivation of her liberty by the Honorable Orinda

D. Evans United States District Court Judge for the Northern District of Georgia, at

Atlanta.

2. This Court has supervisory authority over decisions related to Article III

Judicial Power of the United States and standing to sue doctrine in which no such

case or controversy placed therein is at issue in the case against Appellant.

3. Jurisdiction to appeal to the Eleventh Circuit Court of Appeals is found in 28

USC § 1291, for appeal from a final decision of the Article III United States

District Court for the Northern District of Georgia.

4. Notice of appeal was docketed on February 11, 2008. Sentencing Hearing

took place on February 14, 2008. A Judgment was entered in the Court on

February 21, 2008.

5. This appeal is from a final order of the Court sentencing Appellant to a term

of eight years deprivation of liberty in a criminal case.

 -2-

STATEMENT OF THE ISSUES PRESENTED

1. Who is the party “United States of America” when the United States Attorney’s
Office filed a “criminal information” claiming standing to sue in the Clerk’s
Office of the United States District Court for the Northern District of Georgia
that triggers Article III Judicial Power of the United States?

Alikhan v. U.S., 200 F.3d 732, 734 (11th Cir. 2000)

Fifth Amendment
Article III, Section 2, Clause 2.

2. When the theory of the crimes in a criminal information allege violations of 26

U.S.C. § 7203 involving “regulations” is the charging claim required to identify
such specific regulations in the “criminal information” theory itself due to
section 7203 making several different acts prohibited, or required, elsewhere
within this punishment provision mandate of Congress

U.S. v. Adkinson, 135 F.3d 1363 (11th Cir. 1998)

Hamling v. United States, 418 U.S. 87, 117(1974)
U.S. v. Pease, 240 F.3d 938, 942 (11th Cir. 2001)
Fifth Amendment

3. Because of the alteration of theory in the criminal case before sentencing by

Appellant’s accuser, that regulations did not apply to the claims against
Appellant, does 26 U.S.C. § 6531 require the criminal information allege or
plead the exception in order to gain the benefit of the additional 3 years under
the statute of limitations generally?

Thompson v. Nagle, 118 F.3d 1442, 1445 (11th Cir. 1997)

U.S. v. Reed, 887 F.2d 1398 (11th Cir. 1989)
Fifth Amendment
Sixth Amendment

4. When regulations are involved in the offense conduct of violating 26 U.S.C. §

7203, does the Paperwork Reduction Act of 1995 protect Appellant from
section 7203 penalties if the information request Form required by such
“regulations” fails to comply with sections3506(c)(1)(B),3507 and 3512(1995)?
 -3-

U.S. v. Neff, 954 F.2d 698 (11th Cir. 1992)

Cargill v. CIR 07-14207, (11th Circuit decided April 2, 2008)
U.S. v. Hatch, 919 F.2d 1394, 1396 (9th Cir. 1990)
U.S. v. Smith, 866 F.2d 1092 (9th Cir. 1989)
U.S. v. Chisum, 502 F.3d 1237 (10th Cir. 2007)

5. Whether any request for any information directed at a Citizen of the State of
Georgia from the United States’ Internal Revenue Service is required to provide
certain information regarding why the information is being sought, how the
information, once given, is intended to be used, and whether the obligation to
respond by such Citizen is voluntary or not, before any Citizen of such State
may be “required” to provide such information under a “mandatory” theory?

Dole v. United Steelworkers of Am., 494 U.S. 26, 32-33, (1990)

Fifth Amendment

6. Was filing a “criminal information,” which resulted in eight years of deprivation

of Appellant’s liberty, a violation of the Fifth Amendment Grand Jury mandate?

U.S. v. Sigma International, 244 F.3d 841,856 (11th Cir. 2001)

Fifth Amendment

7. What is the common law meaning of the term “penitentiary” in 18 U.S.C. §

4083?

Green v. U.S., 356 U.S. 165, 183 (1958)

Fifth Amendment
Sixth Amendment
Black’s Law 6th Edition

8. What Article III, Section 2, Clause 3, words in the Constitution of the United
States, places the controversy between the U.S. Attorney and Appellant, as
stated in the “criminal information” within the Judicial Power of the United
States?

Alikhan v. U.S., 200 F.3d 732, 734 (11th Cir. 2000)

Article III, Section 2, Clause 3
 -4-

STATEMENT OF THE CASE

I. Proceedings and disposition below.

On April 13, 2007, Applicant, a former Internal Revenue Service Agent, was

accused in a non verified “criminal information” by the United States Attorney’s

Office of being required by Title 26, United States Code, and by “regulations” made

under the authority thereof, to provide information on an unidentified federal income

tax return request form for Calender Year ending 2000, 2001, 2002 and 2003, to the

Internal Revenue Service, having allegedly received income greater than the

minimum threshold requirement and that by willfully failing to make such statement

of income, expenses and deductions, under penalty of perjury, committed specific and

intentional violations of 26 U.S.C. § 7203 for each of these four year. The “when”

required was also alleged to be by even more “regulations.” Doc. 1- pg.1

On October 29, 2007, a two day trial began which concluded on October 30,

2007, with the Jury returning its verdict of guilty on each of the four misdemeanor

counts.

Prior to sentencing Appellant moved to dismiss the criminal information based

upon several defects therein and with the criminal information theory to which the

District Court denied. Doc.93, pg.1

 -5-

On February 14, 2008, a sentencing hearing was held and Appellant was

sentenced to the maximum of two years on each Count, for a total of eight years, with

four years of incarceration to run consecutively followed by four years of supervised

release to run concurrently. Doc. 96

Final Judgment and Commitment was entered on February 21, 2008 with

numerous conditions involving supervised release. Doc. 96, pg.4

Notice of Appeal was timely and this appeal follows.

Standards of review

1. Who is the party “United States of America” having “standing” when the
United States Attorney’s Office filed a “criminal information” claiming
standing to sue Appellant in the Clerk’s Office of the United States District
Court for the Northern District of Georgia that triggers Article III Judicial
Power of the United States?

Supervisory/De novo: The 11th Circuit exercises its supervisory power over

issues related to Standing and Article III Judicial Power of the United States. See

Piambino v. Bailey, 757 F.2d 1112, 1145-46 (11th Cir. 1985); Where only legal issues

are raised, the 11th Circuit reviews the decision of the Court de Novo. Charles R. Hall

Motors, Inc. v. Lewis (In re Lewis), 137 F.3d 1280, 1282 (11th Cir. 1998) United

States v. McDowell, 250 F.3d 1354, 1361 (11th Cir. 2001).

 -6-

2. When the theory of the crimes in a criminal information allege violations of 26

U.S.C. § 7203 involving “regulations” is the charging claim required to identify
such specific regulations in the “criminal information” theory itself due to
section 7203 making several different acts prohibited, or required, elsewhere
within this punishment provision mandate of Congress?

De novo: Where only legal issues are raised, the 11th Circuit reviews the

decision of the Court de Novo. Charles R. Hall Motors, Inc. v. Lewis (In re Lewis),

137 F.3d 1280, 1282 (11th Cir. 1998) U.S. v. McDowell, 250 F.3d 1354, 1361 (11th

Cir. 2001).

3. Because of the alteration of theory in the criminal case before sentencing by

Appellant’s accuser, that regulations did not apply to the claims against
Appellant, doesn’t 26 U.S.C. § 6531 require the criminal information allege or
plead the exception in order to gain the benefit of the additional 3 years under
the statute of limitations generally?

Clear Error/De Novo: The 11th Circuit reviews findings of fact for clear error,

while the district court's application of law to facts is reviewed de novo. U.S. v.

Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999)

4. When regulations are involved in the offense conduct of violating 26 U.S.C. §

7203, does the Paperwork Reduction Act of 1995 protect Appellant from
section 7203 penalties if the information request Form required by such
“regulations” fails to comply with 44 U.S.C. § 3506(c)(1)(B), 3507 AND
3512(1995)?

Clear Error/De Novo: This Court reviews findings of fact for clear error, while

the district court's application of law to facts is reviewed de novo. U.S. v. Zapata, 180

F.3d 1237, 1240 (11th Cir. 1999)

 -7-

5. Whether any request for any information directed at a Citizen of the State of
Georgia from the United States’ Internal Revenue Service is required to provide
certain information regarding why the information is being sought, how the
information, once given, is intended to be used, and whether the obligation to
respond by such Citizen is voluntary or not, before any Citizen of such State
may be “required” to provide such information under a mandatory theory?

De novo: Where only legal issues are raised, the 11th Circuit reviews the

decision of the Court de Novo. Charles R. Hall Motors, Inc. v. Lewis (In re Lewis),

137 F.3d 1280, 1282 (11th Cir. 1998) U.S. v. McDowell, 250 F.3d 1354, 1361 (11th

Cir. 2001).

6. Was filing a “criminal information,” which resulted in eight years of deprivation

of Appellant’s liberty, a violation of the Fifth Amendment Grand Jury mandate?

De Novo: The 11th Circuit reviews legal questions concerning the Rules of

Criminal Procedure and the Constitution de novo. See U.S. v. Beach, 113 F.3d 188,

189 (11th Cir. 1997) (rules of criminal procedure); U.S. v. Van De Walker, 141 F.3d

1451, 1452 (11th Cir. 1998) (constitutional claims)

7. What is the common law meaning of the term “penitentiary” in 18 U.S.C. §

4083?

De novo: Where only legal issues are raised, the 11th Circuit reviews the

decision of the Court de Novo. Charles R. Hall Motors, Inc. v. Lewis (In re Lewis),

137 F.3d 1280, 1282 (11th Cir. 1998) U.S. v. McDowell, 250 F.3d 1354, 1361 (11th

Cir. 2001).
 -8-

8. What Article III, Section 2, Clause 3, words in the Constitution of the United
States, places the controversy between the U.S. Attorney and Appellant, as
stated in the “criminal information” within the Judicial Power of the United
States?

Supervisory/De Novo: The 11th Circuit exercises its supervisory power over

issues related to Standing and Article III Judicial Power of the United States. See

Piambino v. Bailey, 757 F.2d 1112, 1145-46 (11th Cir. 1985); The 11th Circuit

reviews legal questions concerning the Rules of Criminal Procedure and the

Constitution de novo. See U.S. v. Beach, 113 F.3d 188, 189 (11th Cir. 1997) (rules

of criminal procedure); U.S. v. Van De Walker, 141 F.3d 1451, 1452 (11th Cir. 1998)

(constitutional claims); see also U.S. v. Sigma International, 244 F.3d 841,856 (11th

Cir. 2001)

SUMMARY OF THE ARGUMENTS

1. This case began by a filing of a document styled “criminal information” in the

United States District Court for the Northern District of Georgia by an Attorney by the

name of Richard M. Langway (U.S. Employee Langway), an employee of the United

States Attorney’s Office for the United States District of Georgia (presumend not

proven). The Plaintiff is listed as “United States of America.” Appellant objects that

any words or group of words of Article III in the Constitution of the United States

placed “Judicial Power of the United States” with the Article III Judicial Power to
 -9-

hold Appellant to stand “trial” for the claims by U.S. Employee Langway in a Court

created by Congress of the United States. The non verified “information” never

identifies who is the party “United States of America” when U.S. Employee Langway

filed a “criminal information” in the Clerk’s Office of the United States District Court

for the Northern District of Georgia. No attorney can walk up to the United States

District Court Clerk’s Office in the Northern District of Georgia and say please file

this “criminal information” and order the arrest of such and such. There was no

Constitutional Article III Judicial Power of the United States “standing” for U.S.

Employee Langway to present any of his “claims” in his “criminal information” he

pinned under the name of the Plaintiff “United States of America” within the United

States District Court for the Northern District of Georgia.

2. U.S. Employee Langway alleged Appellant violated a Law of the United States

enacted by Congress’, in its enumerated capacity, involving “Title 26, United States

Code, and” the “regulations” portion of the prohibitions penalized at 26 U.S.C. § 7203

while never identifying and specific provision or such regulations. To the Jury, U.S.

Employee Langway argued it was 26 U.S.C. § 6012 that required Appellant to provide

information to the Internal Revenue Service on Form 1040 for calender year requests

2000, 2001, 2002 and 2003. Doc. 1 - pg. 1-3 Prior to the penalty phase or sentencing,

when pressed on the issue, U.S. Employee Langway aborted his theory involving
 -10-

regulations and argued that Appellant violated the prohibitions of 26 U.S.C. § 7203

by being required by 26 U.S.C. § 7203 to provide a “candid return of income” and

nothing other. Doc. 87 - pg. 6 Appellant was charged by the United States of

America, as represented by U.S. Employee Langway, in his criminal information with

a theory Appellant intentionally violated Title 26, United States Code, and regulations

thereunder, at the time required by law and regulations, in violation of 26 U.S.C. §

7203. At the penalty phase, U.S. Employee Langway said it was section 7203, and

nothing else, that required Appellant to make a return and no official Form was

required. Doc. 87,pg. 6 This altered theory prejudiced Appellant in many

Constitutional, in the teaching Appellant received by the Internal Revenue Service

and other ways not to mention it was not a theory Title 26 nor this Court supports.

3. Because of the alteration of theory in this criminal case before the penalty

phase or sentencing by U.S. Employee Langway , wherein “regulations” did not now

play any role in the claims against Appellant, as alleged in the criminal information,

26 U.S.C. § 6531 was then at issue because of the 3 year limitation placed upon Title

26 Tax Crimes which offers exceptions to gain the benefit of the additional 3 years

placed by Congress on such limitations. U.S. Employee Langway did not plead the

exception in his “criminal information” and besides the Fifth Amendment forbid his

altered claims under the Grand Jury provision. "Statutes of limitation sought to be
 -11-

applied to bar rights of the government, must receive a strict construction in favor of

the government." E.I. Du Pont De Nemours & Co. v. Davis, 264 U.S. 456, 462, 44

S.Ct. 364, 366 (1924). U.S. v. Carrell, 252 F.3d 1193, 1207 (11th Cir. 2001)

4. The theory of U.S. Employee Langway uttered violations of 26 U.S.C. § 7203

for each year involved “regulations” in the offense conduct. This theory did not then

allow the Paperwork Reduction Act of 1995 violations, on the Form 1040, to escape

the public protection in the Paperwork Reduction Act of 1995. Even the 11th Circuit

has held when regulations are involved in the Agency request, or make out the

request, or complete the request, a request that could not be understood without

regulations, as U.S. Employee Langway alleged, the protection would apply. See U.S.

v. Neff, 954 F.2d 698,700 (11th Cir. 1992) Appellant could not be subject to any

penalty under section 7203 for not complying with requests that were related to

regulations. There is no question the Form 1040 for 2000, 2001, 2002 and 2003, fails

to comply with 44 U.S.C. § 3506(c)(1)(B), 3507 and 3512(1995).

5. Notwithstanding the Paperwork Reduction Act of 1995, any request for any

information directed at a Citizen of the State of Georgia from the United States’

Internal Revenue Service is required to provide certain information regarding why the

information is being sought, how the information, once given, is intended to be used,

and whether the obligation to respond by such Citizen is voluntary or not, before any
 -12-

Citizen of such State may be “required” to provide such information. Without such

civilized protection, the only result can be lawless behavior on the part of the Agency.

As this Court said in U.S. v. Argomaniz, 925 F.2d 1349 (11th Cir. 1991), citing to

U.S. v. LaSalle Nat'l Bank, 437 U.S. 298, 98 S.Ct. 2357, 57 L.Ed.2d 221 (1978), the

Supreme Court examined the nature of the IRS investigatory system, and, relying in

part on the legislative history of the Internal Revenue Code, concluded that the

system's "criminal and civil elements are inherently intertwined." Id. at 309, 98 S.Ct.

at 2363.

6. Appellant was held in a Article III United States District Court on a criminal

information signed by U.S. Employee Langway and no other. There was no notice as

to what the maximum amount of time at issue could be. The Fifth Amendment says

all infamous crimes are to be presented to Appellant by way of Grand Jury Indictment.

An infamous crime is one that can result in a maximum amount of deprivation

exceeding 1 year. There is no doubt that each Count charged can result in deprivation

of liberty greater than 1 year. In fact, the current judgment is for deprivation of

liberty for 8 years. U.S. Employee Langway’s characterization of “custody range” and

“guideline range” are simply an attempt to confuse the fact that the maximum for each

Count claimed against Appellant resulted in the penitentiary for 2 years per Count.

The maximum amount of interruption to Appellant’s liberty by the United States is no

 -13-

doubt 2 years per Claim. There can be no conditions of release when the Statute says

1 year and that year is paid for. Yet, the Court ordered Appellant to serve 4 years in

the penitentiary and 4 years conditional supervised release. The term “supervised

release” plus 4 years in the penitentiary, places the punishment or deprivation

maximum greater than 1 year per claim, rending Appellant stuck with the label of

“infamy” while not being charged by Grand Jury for such infamous crime in violation

of the 5th Amendment.

7. 18 U.S.C. § 4083 prohibits Appellant from being placed in a penitentiary to pay

her debt to U.S. Employee Langway, without her consent. The term “penitentiary”

is not defined in 18 U.S.C. § 4083. Nor is it defined anywhere else by Congress.

Appellant claims the term means what it means in the Common Law. The Common

Law meaning is “where felons serve their time.” See Black’s Law, 6th Edition. Again,

Appellant has been labeled to have committed a crime of infamy, punished for a crime

of infamy, directed to pay her debt to U.S. Employee Langway in a penitentiary where

felons serve their time, while being denied a Grand Jury to stand in between Appellant

and U.S. Employee Langway, in violation of Article VII, Amendment V, 1791.

8. There is not one single word in Article III, Section 2, Clause 3, that U.S.

Employee Langway can identify which would place his claims against Appellant

within any Article III Judicial Power of the United States. The alleged crime is in the
 -14-

nature of “omission”, not commission, and the “omission” was alleged to have been

completed while Appellant was present in the State of Georgia. This Court has an

independent supervisory duty to uphold the Constitution of the United States, under

Article VI, and thus far such has not been done. Appellant would not have known the

theory of U.S. Employee Langway would change three times without the changes

occurring just prior to sentencing and at sentencing. The District Court had an

independent duty to make certain Article III Judicial Power of the United States had

been properly placed over U.S. Employee Langway’s claims and the District Court,

for whatever reason, turned a blind eye to the very Article of the Constitution that

forbids her compensation from being diminished.

APPELLANT’S BRIEF AND ARGUMENT

1. There is no “party” with the name “United States of America” for U.S.
Employee Langway to claim “standing” in any “criminal information”
filed in the Clerk’s Office of the United States District Court for the
Northern District of Georgia that would be a recognizable “party” under
Article III, Section 2, Clause 2 to any case or controversy against a Citizen
of the State of Georgia.

There is nothing in Article III of the Constitution of the United States that

provides any Article III Judicial Power of the United States venue for a controversy

between the “United States of America” and a “Citizen of the State of Georgia.” In

other words, the United States of America lacks standing to sue a Citizen of the State
 -15-

of Georgia in any Article III Judicial Power of the United States inferior court created

by Congress.

Article III, Section 1 creates the Power for Congress to create inferior Courts

to the one Supreme Court and reads:

(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.

Article III, Section 2, Clause 1, directs the subject matter and standing of both

the one supreme Court and inferior courts created by Congress, and specifically states:

(1)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.

Article III, Section 2, Clause 2, directs which cases or controversies in Article

III, Section 2, Clause 1, belong in the one supreme Court under original jurisdiction
 -16-

and which cases belong in the one supreme Court on appellate jurisdiction, and

specifically states:

(2) 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.
Article III, Section 2, Clause 3, places the trial of all crimes against the laws of

the United States in the Courts of the State in which the alleged crime was committed:

(3) The trial of all Crimes, except in cases of impeachment, shall be by

jury; and such trial shall be held in the State where the said Crimes
shall have been committed; but when not committed within any State,
the trial shall be at such place or places as the Congress may by law
have directed.

Article VII, Amendment V provides:

"No person shall be held to answer for a capital, or otherwise infamous

crime, unless on a presentment or indictment of a Grand Jury,...; nor
shall any person be subject to the same offense to be twice put in
jeopardy of life or limb; nor shall be compelled in any criminal case to
be a witness against himself; nor be deprived of life, liberty, or property,
without due process of law..”

If these words are to mean “anything, it means that a criminal indictment must

actually issue from a grand jury, and not some other source.” U.S. v. Sigma

International, 244 F.3d 841, 856, (11th Cir. 2001)(set aside on other grounds)
 -17-

The fundamental concept underlying the Fifth Amendment guarantee is that in

order for an indictment to be recognized as actually issuing from a grand jury, it must

be the product of an investigative deliberation that is independent of both the

prosecuting attorney and the court. Id; See U.S. v. Williams, 504 U.S. 36, 49, 112

S.Ct. 1735, 1743, 118 L.Ed.2d 352 (1992) Without a guarantee of independence, the

indictment would not be the genuine issue of a grand jury within the meaning of the

Constitution. Sigma, supra

It is clear, for example, that if a prosecutor simply drew up an "indictment," had

a grand jury foreperson sign it, and then used it to charge Appellant with a criminal

offense, it would be dismissed because the "indictment" out of hand was violative of

the Fifth Amendment. This is because the "indictment" would in no sense be the

product of a constitutionally required grand jury proceeding. So, too, would dismissal

of an indictment be appropriate when it was issued by a "kangaroo grand jury" - one

whose deliberations were so overborne by a prosecutor or judge that the indictment

was, in effect, the prosecutor's or judge's handiwork, and not the result of a considered

judgment by an independently functioning grand jury. See U.S. v. McKenzie, 678 F.2d

629, 631 (5th Cir. 1982) (holding that an indictment may be dismissed "when

prosecutorial misconduct amounts to overbearing the will of the grand jury so that the

indictment is, in effect, that of the prosecutor rather than the grand jury"); see also
 -18-

Stirone v. U.S., 361 U.S. 212, 218, 80 S.Ct. 270, 273, 4. L.Ed.2d 252 (1960) ("the very

purpose of the requirement that a man be indicted by a grand jury is to limit his

jeopardy to offenses charged by a group of his fellow citizens acting independently of

either prosecuting attorney or judge.").

Subsequent Supreme Court cases have reaffirmed the importance of the Fifth

Amendment's Grand Jury Clause, implying that courts have the authority to dismiss

an indictment that is the product of a grand jury process so flawed that the grand jury's

independence has been infringed. Sigma, at 857

Under Article III of the United States Constitution, the subject matter

jurisdiction of federal courts extends only to "cases or controversies." Socialist

Workers Party v. Leahy, 145 F.3d 1240, 1244 (11th Cir. 1998). One aspect of this

"case or controversy" limitation is the doctrine of standing, which requires that the

plaintiff show, among other things, that he has suffered an "injury in fact" - some harm

to a legal interest that is "actual or imminent, not `conjectural' or `hypothetical[.]'" Id.

(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 1340 2130,

2136, 119 L.Ed.2d 351 (1992)) (emphasis added); see generally National Treasury

Employees Union v. U.S., 101 F.3d 1423, 1427 (D.C.Cir. 1996) ("In an attempt to give

meaning to Article III's case-or-controversy requirement, the courts have developed

a series of principles termed `justiciability doctrines,' among which are standing[,]

 -19-

ripeness, mootness, and the political question doctrine.") (citation omitted). Bowen

v. First Family Financial Services, 233 F.3d 1331, 1339, 1340 (11th Cir. 2000)

In Cuban American Bar Ass'n, Inc. v. Christopher, 43 F.3d 1412, 1422 (11th

Cir. 1995) the 11th Circuit explained that "[b]efore rendering a decision . . . every

federal court operates under an independent obligation to ensure it is presented with

the kind of concrete controversy upon which its constitutional grant of authority

is based; and this obligation on the court to examine its own jurisdiction continues at

each stage of the proceedings, even if no party raises the jurisdictional issue and

both parties are prepared to concede it' ") (quoting Hallandale Professional Fire

Fighters Local 2238 v. City of Hallandale, 922 F.2d 756, 759 (11th Cir. 1991));

Alabama v. U.S. Envtl. Protection Agency, 871 F.2d 1548, 1554 (11th Cir. 1989)

(noting that "[s]tanding is a jurisdictional prerequisite to suit in federal court") (citing

Valley Forge Christian College v. Americans United for Separation of Church and

State, 454 U.S. 464, 475-76, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982)).

“An effect on interstate commerce may be required for Congress to have

authority under the Commerce Clause to forbid certain conduct.” Alikhani v. U.S.,

200 F.3d 732, 734 (11th Cir. 2000)(citing to U.S. v. Lopez, 514 U.S. 549, 562, 115

S.Ct. 1624, 1631, 131 L.Ed.2d 626 (1995). “But to this court and at least one other,
 -20-

that does not imply that a district court faced with an insufficient interstate-commerce

nexus loses subject-matter jurisdiction of the case.” Alikhani, surpa "Subject-matter

jurisdiction defines the court's authority to hear a given type of case. . . ." U.S. v.

Morton, 467 U.S. 822, 828, 104 S.Ct. 2769, 2773, 81 L.Ed.2d 680 (1984). Congress

bestows authority on United States District Courts by statute. See 18 U.S.C. § 3231.

Title 18, United States Code, section 3231 provides:

"The district courts of the United States shall have original jurisdiction,
exclusive of the courts of the States, of all offenses against the laws of
the United States. Nothing in this title shall be held to take away or
impair the jurisdiction of the courts of the several States under the laws
thereof."
The Supreme Court said the “office of the second sentence is merely to limit

the effect of the jurisdictional grant of the first sentence.” Pennsylvania v. Nelson,

350 U.S. 497, 512 (1956)

In the question being raised herein, where does the United States of America,

being represented by U.S. Employee Langway, obtain the power under Article III,

Section 2, Clause 2, to commence or file any “criminal information” under the party

name “United States of America”? Where does the United States of America get its

“standing” and where does U.S. Employee Langway become the representing attorney

for the United States of America’s claims? See Doc. 1, pg. 1-3

Nothing in Article I, II, III, IV, V, VI or VII, in the Constitution of the United
 -21-

States, enumerates any such standing. There is no place enumerated in the Judicial

Power of the United States at Article III for a party named “United States of America”

that allows U.S. Employee Langway’s non verified “criminal information” claims to

fall within a class of cases or controversy within Article III, Section 2, Clause 2.

Article III places no power within the Judicial Power of the United States to allow

adjudication of any claim involving transgression of a United States Law within said

United States Court, save when such “crime” was not “committed within any State.”

See last part of Article III, Section 2, Clause3 (“but if”) The United States is

prohibited from either being a party to any controversy or to represent a party in such

trial of such criminal claims alleged to be committed within the State of Georgia.

U.S. Employee Langway will not cite to any words in Article III that says

otherwise and this is because there is no such words therein. Because Article III does

not provide any authority for the United States District Court for the Northern District

of Georgia to here the “class of case” brought by U.S. Employee Langway, the United

States District Court for the Northern District of Georgia lacked subject matter

jurisdiction over the claims of U.S. Employee Langway purportedly representing the

“United States of America.” Both United States of America and U.S. Employee

Langway lacked “standing” under Article III to commence its claims against Appellant

in any Court State of United States.

 -22-

2. When the theory of the crimes in a criminal information allege violations

of 26 U.S.C. § 7203 involving “regulations” the charging claim requires
identification of such regulations in the information itself because section
7203 makes several different acts prohibited or required elsewhere within
this punishment provision mandate of Congress.

The criminal information in this case alleged that Appellant was required by

Title 26, United States Code, and by regulations made under authority thereof, to

make a federal income tax return for the calender year 2000, 2001, 2002 and 2003,

having received gross income in excess of the minimum filing requirements for each

of these years, did willfully fail to make such return at the time required by law and

such regulations all in violation of 26 U.S.C. § 7203.

The U.S. Employee Langway argued to the District Court that section 7203

without any regulation required the making of a return just prior to sentencing. See

Doc. 87 , pg. 1-7 This was, in part, contrary to the 11th Circuit’s opinion in U.S. v.

Neff, 954 F.2d 698 (11th Cir. 1992) which held that the most obvious reason for

rejecting Neff's claim “that he cannot be penalized for failing to file the Returns

because Treas.Reg. § 1.6091-2 (as amended in 1978), which states where income tax

returns must be filed, does not have an OMB control number” was rejected on

grounds the 11th Circuit stated “Congress created Neff's duty to file the Returns in 26

U.S.C. § 6012(a), and nowhere did Congress condition this duty on any Treasury
 -23-

regulation.” Id. at 700

In an unpublished decision dated April 2, 2008, in Cargill v. CIR 07-14207, a

Panel of this 11th Circuit held:

In Neff, we rejected the argument that a tax return need not be filed
because of the absence of an OMB control number on Treas.Reg. §
1.6091-2 (as amended in 1978), which states where income tax returns
must be filed. Neff, 954 F.2d at 699-700. Specifically, we stated that
“Congress created [the taxpayer’s] duty to file the Returns in 26 U.S.C.
§ 6012(a), and . . . Congress did not enact the PRA’s public protection
provision to allow OMB to abrogate any duty imposed by Congress.”Id.;
see also 26 U.S.C. § 7203 (stating penalties for willful failure to file
return, supply information, or pay tax); James v. U.S., 970 F.2d 750, 753
n.6 (10th Cir. 1992) (noting that the lack of an OMB number on IRS
notices and forms does not violate the PRA).
The Government in the case herein faced with Neff’s 6012(a) theory in

Appellant’s Motion to Dismiss, decided to argue the duty to provide information

comes from Congress at 26 U.S.C. § 7203 not 6012, and not any regulation. So, in

this case we have the first theory offered in the charging information which alleged

Appellant was required by Title 26 and their regulations to make a return providing

income, deductions and expenses and at a time required by law and regulations. Then

Neff, which the 11th Circuit relied upon 6012(a) for Neff’s duty and held such duty

was not conditioned on any Treasury Regulation. The Government abandons the Neff

theory and endorses the third theory, which was that 7203, not 6012, and no

regulation, required Appellant to make a “candid return of income” citing to the 7th
 -24-

Circuit’s holding in Salberg v. U.S. 969 F.2d 379, 384 (7th Cir. 1992) as reaffirmed in

U.S. v. Patridge, 507 F.3d, 1092, 1094-1095. The Commissioner of Internal Revenue

says the “duty” comes from Title 26, §§§ 6001, 6011, 6012(a) and their regulations

never mentioning the “7203" theory. The Office of Management and Budget at 5

CFR 1320.6 finds that Title 26 § 6011 is where the alleged duty derives never

mentioning the “7203" theory. 26 U.S.C. § 6011 begins by Congress “When

required by regulation” and section 7203 says:

“Any person required....by this title or by regulation made under

authority thereof to make a return...shall...be guilty of a misdemeanor...”

See U.S. v. Goetz, 746 F.2d 705 (11th Cir. 1984)

An indictment sufficiently charges an offense if it alleges the elements of the

offense and fairly informs the defendant of the charge against which he must defend;

it must also enable the defendant to plead an acquittal or conviction in bar of future

prosecutions for the same offense. Hamling v. U.S., 418 U.S. 87, 117, 94 S.Ct. 2887,

2907, 41 L.Ed.2d 590 (1974). U.S. v. Pease, 240 F.3d 938, 942 (11th Cir. 2001)

A count does not state an offense if it does not contain all the elements of the

offense charged. Hamling v. U.S., 418 U.S. 87 (1974); U.S. v. Chesney, 10 F.3d 641

(9th Cir. 1993); U.S. v. Ramos, 666 F.2d 469, 474 (11th Cir. 1982) (an indictment is

generally constitutionally sufficient if it sets forth the offense in the words of the
 -25-

statute itself, as long as those words of themselves fully, directly, and expressly,

without any uncertainty or ambiguity, set forth all the elements necessary to

constitute an offense under the laws of the U.S..") (emphasis added). The failure to

allege the element which establishes the very illegality of the behavior and the court's

jurisdiction is fatal to the indictment. Russell v. U.S., 369 U.S. 749; see also U.S. v.

Adkinson, 135 F.3d 1363 (11th Cir. 1998)

In order to prove a violation of section 7203, the government must prove the

following three elements: the taxpayer was required to file an income tax return as

alleged in the criminal information; the taxpayer failed to file such return as alleged

in the criminal information; and the taxpayer's violation was willful. Goetz, supra

"Willfulness, as construed by our prior decisions in criminal tax cases, requires

the Government to prove that the law imposed a duty on the defendant, that the

defendant knew of this duty, and that he voluntarily and intentionally violated that

duty." Cheek v. U.S., 498 U.S. 192, 201, 111 S.Ct. 604, 610, 112 L.Ed.2d 617 (1991);

see U.S. v. Williams, 121 F.3d 615 (11th Cir. 1997)

There are several types of demands for “returns” in both the Internal Revenue

Code and in Regulations promulgated thereunder as evident by the language of section

7203 itself. In this case the theory was that “Title 26" and “regulations” thereunder

required Appellant to provide income, deductions, expenses, by “regulations.”

 -26-

Another point on this subject is that 26 U.S.C. § 6531 mandates all crimes

“arising under the internal revenue laws” must be founded within “3 years next after

the commission of the offense.” In Jaben v. U.S., 381 U.S. 214, 220, the Supreme

Court said that when a limitation period is fixed by statute, the “better view of § 6531

is that the complaint, to initiate the time extension, must be adequate to begin

effectively the criminal process prescribed by the Federal Criminal Rules. It must be

sufficient to justify the next steps in the process...”

Under 6531, section 7203 is not listed specifically however, subsection (4)

excepts from the 3 year limitation “the offense of willfully failing to pay any tax, or

make any return (other than a return required under authority of part III of subchapter

A of chapter 6) at the time or times required by law or regulations.” Section 7203

recognizes no such additional 3 year exception applicable to the limitation under 6531.

It should be obvious that no return is required specifically by section 7203. In

order to have a violation of section 7203, a return must be alleged and proved to have

been required by “this title” or by regulation thereunder.

The charging information alleged the return triggering the offense of violating

section 7203 derived from both Title 26, U.S. Code, and regulations thereunder” and

was described a “federal income tax return” and further explained providing income,

deductions and expenses by “regulations.”

 -27-

The criminal information in this case alleged an offense theory that does not

exist or is not recognized by this Court to exist. Since the requirement to provide

information mandates from 6012, see Neff and Cargill, and not from any regulations,

and because the criminal information alleged “Title 26, United States Code, and

regulations...at the time required by law and regulations” the “criminal information”

failed to allege an offense under 26 U.S.C. § 7203.

In the flip flop theory at the close of the case pending in the United States

District Court U.S. Employee Langway cited to the recent decision in U.S. v. Patridge,

507 F.3d, 1092, 1094-1095 (7th Cir. 2007) holding hat the term “return” under section

7203 was not defined and no specific Form 1040 was required.” Under this theory the

criminal information was also misleading and presented a theory unlike that

determined in Patridge by the 7th Circuit.

For this reason the criminal information should have been dismissed because

purported charging claims alleged a theory that the 11th Circuit refuses to recognize

as something that could violate section 7203. See Neff; see also Cargill (and cases

cited therein.)

3. Because of the alteration of theory in the criminal case before sentencing

by Appellant’s accuser, that regulations did not apply to the claims against
Appellant, 26 U.S.C. § 6531 requires the criminal information allege or
plead the exception in order to gain the benefit of the additional 3 years
under the statute of limitations to which it did not do.
 -28-

The window to challenge the claims made in the altered theory by U.S.

Employee Langway is very small and can be measured in hours. On February 13,

2008, just one calender date and only hours from the February 14, 2008 sentencing

hearing in this case, U.S. Employee Langway, in responding to Appellant’s Motion

involving 18 U.S.C. § 4083, advanced a theory to the United States District Court of

the alleged “crimes” not involving any “regulations” for each of the requirements in

2000, 2001, 2002, and 2003, as was alleged by him in his criminal information. See

Doc.1 - pg. 1-3; see Doc. 87 - pg. 6

As stated above, section 6531 fixes the limitation to 3 years for all offenses

derived from the internal revenue laws and “except(s)” the period to 6 years under

certain conditions. Nothing in the criminal information placed the theory in the

criminal information within the 3 year excepted additional period. The criminal

information does allege Appellant willfully failed to make a “federal income tax

return” but that allegation was alleged to be required by “Title 26" and “regulations”

to which this Court in both Neff and now Cargill (unpublished) has stated “in light of

the settled case law” rejecting the position advanced by Cargill, the requirement, at

least at issue in Cargill and Neff, was not contingent on any “regulations.” See also

Neff at 700

When there was an “unconstitutional variance” between the [information]

 -29-

indictment and the proof at trial requires two inquiries. U.S. v. Prince, 883 F.2d 953,

959 (11th Cir. 1989). First, this Court is to determine whether a material variance did

indeed occur. Id. Second, this Court is to determine whether Thompson suffered

substantial prejudice as a result. Id. Thompson v. Nagle, 118 F.3d 1442 (11th Cir.

1997) Ordinarily, a variance between the date alleged and the date proved will not

trigger reversal as long as the date proved falls within the statute of limitations and

before the return of the indictment [information]. U.S. v. Harrell, 737 F.2d 971, 981

(11th Cir. 1984)

The doctrine of mootness derives directly from the case-or-controversy

limitation because “an action that is moot cannot be characterized as an active case or

controversy. Adler v. Duval County Sch. Bd., 112 F.3d 1475, 1477 (11th Cir. 1997).

"[A] case is moot when the issues presented are no longer `live' or the parties lack a

legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496,

89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969). Indeed, dismissal is required because

mootness is jurisdictional. See Florida Ass'n of Rehab. Facilities, 225 F.3d at 1227 n.

14 (citing North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d

413 (1971) ("The question of mootness is . . . one which a federal court must resolve

before it assumes jurisdiction.")). "Any decision on the merits of a moot case or issue

would be an impermissible advisory opinion." Id. at 1217 (citing Hall, 396 U.S. at
 -30-

48, 90 S.Ct. at 201-02).

“Statutes of limitations are not rules of evidence. Instead, they exist in order ‘to

limit exposure to criminal prosecution to a certain fixed period of time following the

occurrence of those acts the legislature has decided to punish by criminal sanctions,’

and ‘to protect individuals from having to defend themselves against charges when the

basic facts may have become obscured by the passage of time.’ Toussie v. U.S., 397

U.S. 112, 114-15, 90 S.Ct. 858, 860 (1970).” U.S. v. Ratcliff, 245 F.3d 1246, 1255

(11th Cir. 2001)

It is one thing to be faced with evidence of criminal activity for which one

cannot be convicted, and quite another to face conviction and punishment for that

activity. Id. at 1256

Since the criminal information did not allege the form of return, where it was

required by “this Title,” as it did not allege the regulation making the “return” at issue

due at the time alleged in the criminal information, by “regulations,” the United States

District Court lacked subject matter jurisdiction over the offense alleged in Counts

one, two and three. There can be no doubt by the words in 26 U.S.C. §§ 6531 and

7203 that without more specific identity as to the “return required under authority of”

what part of what subchapter of what chapter there is no words in U.S. Employee

Langway’s United States of America’s claims that permit those claims to be

 -31-

considered after the 3 year expiration at section 6531.

The “criminal information” was filed on April 13, 2007. This makes any

“requirement” under any authority of what part of what subchapter of what chapter

outside the limitations provided by 26 U.S.C. § 6531 as of April 13, 2004.

Accordingly the United States District Court should have dismissed Counts One,

Two, and Three, for the specific reason these “Counts” were “filed” outside the 3 year

limitation proscribed by Congress at 26 U.S.C. § 6531 and those Counts should be

dismissed. Appellant would not have known this issue applied til February 13, 2008

4. When regulations are involved in the offense conduct of violating 26 U.S.C.

§ 7203, the Paperwork Reduction Act of 1995 protects Appellant from
section 7203 penalties if the information request Form required by such
“regulations” fails to comply with 44 U.S.C. § 3506(c)(1)(B), 3507 and
3512(1995).

This issue is derived from the question of whether the violation of section 7203

alleged in the criminal information is a theory that involves a return “required by this

title” or “required by this title” and “regulations” promulgated thereunder. Section

6531 directs to some part of some subchapter of some chapter to extend any limitation

period thereunder.

The information clearly alleged the vague “Title 26, United States Code, and by

regulations made under authority thereof....In violation of 26 United States Code,

Section 7203.”
 -32-

Admittedly, the Government changed their theory just before sentencing, but

that does not change the fact as to what they did allege in the criminal information and

the theory presented to the Jury at trial.

Since regulations are involved in the theory alleged against Appellant, the

Paperwork Reduction Act of 1995 does apply, even under this Circuit’s rationale. The

United States District Court should have given Appellant relief from the penalties

imposed for the offense of violating section 7203 for 2000, 2001,2002 and 2003, and

dismissed the Government’s criminal information theory. Doc. 80 Appellant directs

this Court’s attention to the Dole decision recognized in Cargill1 as “Tax forms are

covered by the PRA. See Dole v. United Steelworkers of Am., 494 U.S. 26, 32-33, 110

S.Ct. 929, 933,108 L.Ed.2d 23 (1990).” See also U.S. v. Chisum, 502 F.3d 1237 (10th

Cir. 2007) stating “But the PRA protects a person only "for failing to file

information.”)(in the context of a criminal case)

True, the 10th Circuit has applied the public protection to criminal cases where

the forms were “inexorably linked” to the payment of taxes, and without regard to any

statutory mandate theory or “regulation.” See U.S. v. Collins, 920 F.2d 619, 630, fn.

12 and 13 (10th Cir. 1990). Since the theory alleged against Appellant involved the

requirement to make a federal income tax return according to such regulations,

1
Unpublished decision is attached to the rear of this brief Addendum 1.
 -33-

Appellant is certain this Court will have no trouble enforcing the Will of Congress in

regard to the specific charges against Appellant which begins “Notwithstanding any

other provision of law, no personal shall be subject to any penalty” for failing to

comply with a collection of information alleged to be required by regulations under

“this title.” See 44 U.S.C. § 3512(a)(1995); See 26 U.S.C. § 7203; see also Cargill,

supra This Court in U.S. v. Neff, 954 F.2d 698, 700 (11th Cir. 1992) cited to U.S. v.

Wunder, 919 F.2d 34, 38 (6th Cir. 1990) which identified “at least one court has

reversed a criminal conviction on the basis of section 3512.” See U.S. v. Smith, 866

F.2d 1092 (9th Cir. 1989).

The 9th Circuit in U.S. v. Hatch, 919 F.2d 1394, 1397 (9th Cir. 1990) cited to

Hotch v. U.S., 14 Alaska 574, 208 F.2d 244 (9th Cir. 1953), and further rehearing

denied, 14 Alaska 594, 212 F.2d 280 (1954), stating that “Hotch involved a

commercial fisherman in Alaska who was convicted of taking salmon for food in

violation of a Department of the Interior regulatory extension of statutory closing

hours.” The 9th Circuit initially affirmed. 208 F.2d at 248.

In a petition for rehearing, however, the fisherman raised for the first time the

contention that because there was no published regulation prohibiting fishing when

he did, the complaint did not charge an offense. Id. at 250. The court agreed, and,

citing Federal Rule of Criminal Procedure 12(b)(2) as the basis for considering the
 -34-

argument at this late time, reversed the judgment of the district court and remanded for

dismissal. Id. Upon further rehearing the court explained that:

[t]he Congressional directive in regard to the procedure to be followed

in the issuance of agency regulations must be strictly complied with,
since the issuance of regulations is in effect an exercise of delegated
legislative power. . . . Unless the prescribed procedures are complied
with, the agency (or administrative) rule has not been legally issued, and
consequently it is ineffective.

212 F.2d at 282-83.

Hatch argued that the same situation exists in his case, namely that no offense

was charged because 44 U.S.C. § 3507(f) was not complied with in making the

information request of him. He also pointed to 44 U.S.C. § 3512 which provides that

"no person shall be subject to any penalty for failing to . . . provide information" if

there is no current control number on the request. The Senate Report analysis of §

3512 states that:

[i]nformation collection requests which do not display a current control

number or, if not, indicate why not are to be considered `bootleg' requests
and may be ignored by the public. . . . These are the only circumstances
under which a person may justify the failure to maintain information for
or provide information to any agency otherwise required, by reliance on
this Act.

S.Rep. No. 930, 96th Cong., 2d Sess. 52, reprinted in 1980 U.S.Code Cong. & Admin.
News 6241, 6292.
 -35-

See also 5 C.F.R. § 1320.5(c) ("Whenever a member of the public is protected

from imposition of a penalty under this section for failure to comply with a collection

of information, such penalty may not be imposed by an agency directly, by an agency

through judicial process, or by any other person through judicial or administrative

process."). Hatch, at 1398

The Paperwork Reduction Act 1995 at issue in Chisum, established Congress

intended to make it unequivocally clear the reach of the Paperwork Reduction Act of

1980 and now, 1995, is a mandate applying to any request by the Internal Revenue

Service of any Citizen of any State under any Congressional directive.

In 1980, Congress enacted the Paperwork Reduction Act of 1980, P.L 96-511

which purpose, in part, was to both “Minimize the public burden of Federal

paperwork”, Maximize usefulness” and to “Ensure that the collection ....of

information is consistent with applicable laws relating to privacy, security, and

confidentiality.” House Report, P.L. 104-13 [page 8][ page 171].

The 1995 Paperwork Reduction Act was enacted to strengthen the 1980 Act at

issue in Dole. Beginning Calender Year 1995, Congress mandated that all collection

requests display a statement that “a person is not required to respond to the collection

of information” which is “subject to the Act” “unless it displays a control number

which is VALID.” See 44 U.S.C. § 3512(a)(ii); See also House Conference Report
 -36-

No. 104-99, April 3, 1995, [page 36] at 248, # 30 U.SCCAN, 239, 1995 WL 147035,.

The 1995 Act mandates:

(a) Notwithstanding any other provision of law, no person shall be subject to

any penalty for failing to comply with a collection of information that is
subject to this chapter if

(1) the collection of information does not display a valid control number
assigned by the Director in accordance with this chapter; or

(2) the agency fails to inform the person who is to respond to the
collection of information that such person is not required to respond to
the collection of information unless it displays a valid control number.

(b) The protection provided by this section may be raised in the form of a
complete defense, bar, or otherwise at any time during the agency
administrative process or judicial action applicable thereto.

See 44 U.S.C. § 3512

The Dole Court directed typical “collection requests include tax forms.” at 33.

The IRS says at http://www.irs.gov/businesses/small/article/0,,id=109046,00.html:2

Privacy Act Statement and Paperwork Reduction Act Notice

This notice is given under the Privacy Act of 1974 and the paperwork
Reduction Act of 1995. The Privacy Act and Paperwork Reduction Act
requires that the Internal Revenue Service inform businesses and other
entities the following when asking for information.

The information on this form will carry out the Internal Revenue laws of
the U.S.. We will comply with Internal Revenue Code (IRC) section

2
This Court can take judicial notice of this fact.
 -37-

6109 and the regulations hereunder, which generally require the inclusion
of an Employer Identification Number (EIN) on certain returns,
statements, or other documents filed with the Internal Revenue Service.
Information on this form may be used to determine which Federal tax
returns are required to file and to provide related forms and publications.
This Form will be disclosed to the Social Security Administration for
their use in determining compliance with applicable laws. An EIN will
not be issued unless you provide all of the requested information, which
applies to your entity.

Respondents should be aware that notwithstanding any other provision

of law, no person shall be subject to any penalty for failing to comply
with a collection of information if it does not display a valid OMB
control number. Books or records relating to a form or its instructions
must be retained as long as their contents may become material in the
administration of any Internal Revenue law. Generally, tax returns and
return information are confidential, as required by IRC section 6103.

In U.S. v. Chromallow American Corp., 158 F.3d 345, 351 (5th Cir. 1998) the

5th Circuit said the "notwithstanding" clause in that case is explicit and must be given

effect. See, e.g., Town of Munster, Ind. v. Sherwin-Williams Co., 27 F.3d 1268, 1271

(7th Cir. 1994).

44 U.S.C. section 3512(1995) says exactly what the IRS publishes on the web

page and that is:

“notwithstanding any other provision of law, no person shall be subject

to any penalty for failing to comply with a collection of information if it
does not display a valid OMB control number”

Under the 1995 Paperwork Reduction Act a number displayed is only valid

when it is “issued in accordance with this chapter.” See 44 U.S.C. § 3512(A)(i)(1995)

 -38-

“The PRA, 44 U.S.C. § 3501-20, precludes the imposition of any penalty against a

person for "failing to comply with a collection of information" if either (1) it "does not

display a valid control number" or (2) the agency fails to alert the person that he or she

"is not required to respond to the collection of information unless it displays a valid

control number." 44 U.S.C. § 3512(a). U.S. v. Chisum, 502 F.3d 1237 (10th Cir.2007)

A § 3512(a) defense may be raised at any time. See id. § 3512(b). Id. Tax forms are

covered by the PRA. See Dole v. United Steelworkers of Am., 494 U.S. 26, 33 (1990).

See Cargill; See also Chisum.

Mr. Chisum contended that "[s]ince there was no proof that Form 1040 was a

lawful form under the [PRA], the trial court erred in failing to grant [his] request [at

the sentencing hearing] to dismiss the indictment." Aplt. Br. at 29. But the PRA

protects a person only "for failing to file information. It does not protect one who files

information which is false." Collins, 920 F.2d at 630 n.13 (internal quotation marks

omitted). The charges against Mr. Chisum were predicated on the filing of false

information, not the failure to file. He was therefore not entitled to relief.

As indicated above, the charges against Appellant are predicated on the failure

to make a return or provide information as the Supreme Court in Dole characterized

the act being protected from penalty.

In U.S. v. Collins, 920 F.2d 619, 630 (fn. 13) the 10th Circuit said that the tax
 -39-

form such as the 1040 and any obligation owed were “inexorably linked”.

Since at least 1995, Congress, at 44 U.S.C. §3506(c)(1)(B) directs the Director

of OMB to “ensure” the IRS application’s attached proposed request for income tax

information form displays the following criteria:

(i) inventoried, displays a control number and, if appropriate, an expiration

date;
(ii) indicate the collection is in accordance with the clearance requirements
of section 3507; and;
(iii) informs the person receiving the collection of information of;

(I) the reasons the information is being collected;

(II) the way such information is to be used;
(III) an estimate, to the extent practicable, of the burden of the collection;
(IV) whether the responses to the
collection of information are voluntary, required to obtain a benefit, or
mandatory; and
(V) the fact that an agency may not conduct or sponsor, and a person is
not required to respond to, a collection of information unless it displays
a valid control number3

3
P.L. 104-13(1995), pg. 206-207 USCCAN- 1. “Section 3506(c) mandates...
that includes....; Ensure that information collections are inventoried, display a
control number and, when appropriate, an expiration date; indicate the
collection is in accordance with the Act; and contain a statement informing
the person being asked why the information is being collected, its use, its
burden, and whether responses are voluntary, required to obtain a benefit, or
mandatory. This requirement is transposed from current law (section 3504(c)(3))
to make it more clearly an agency responsibility, rather than a duty of OMB. Note
that this requirement must also be certified to by each agency (see section
3506(c)(3)(F); and Assess the information collection burden of proposed
legislation affecting the agency.”
 -40-

All this Court must do to determine whether the Form 1040 for 2000 through

2003 displayed a valid OMB control number issued in accordance with section

3506(c)(1)(B) is to look at the Forms attached and see for itself none of the criteria

listed mandated by Congress appears anywhere on the Forms.

Yes there is an OMB number, but that is as far as appearance of compliance

goes. There is no expiration date, no indication the Form is in accordance with the

clearance requirements of section 3507, no information as to why the questions are

being asked and how the answers will be used, no mention of voluntary or mandatory,

and certainly no statement that Appellant is not obligated to provide any answers or

information unless the form displays a valid OMB control number. Taking the IRS

at their word on their web page the Appellant cannot be subject to any penalty unless

the request for information complies in every respect with the Paperwork Reduction

Act of 1995 and the rights of Appellant (i.e. “In accordance with this chapter”).

As in the Chisum case published by the 10th Circuit, the U.S. Employee

Langway has not tendered any Form and has no Form promulgated by statute and

regulation that complies with the Paperwork Reduction Act of 1995. Between the

Supreme Court in Dole, the IRS on their web page, Congress’ words in the Paperwork

Reduction Act of 1995, and the 10th Circuit’s recent decision in Chisum, the Appellant

is entitled to relief (“no person shall be subject to any penalty”).

 -41-

5. All requests for any information directed at a Citizen of the State of

Georgia from the U.S.’ Internal Revenue Service, as if it were from
Congress itself, is required to provide certain information regarding why
the information is being sought, how the information, once given, is
intended to be used, and whether the obligation to respond by such Citizen
is voluntary or not, before any Citizen of such State may be “required” to
provide such information.

In U.S. v. Argomaniz, 925 F.2d 1349 (11th Cir. 1991), citing to U.S. v. LaSalle

Nat'l Bank, 437 U.S. 298, 98 S.Ct. 2357, 57 L.Ed.2d 221 (1978), the 11th Circuit stated

“the Supreme Court examined the nature of the IRS investigatory system, and, relying

in part on the legislative history of the Internal Revenue Code, concluded that the

system's ‘criminal and civil elements are inherently intertwined.’” Id. at 309, 98 S.Ct.

at 2363.

44 U.S.C. § 3506(c)(1)(B) requires all requests for information list above in

(i),(ii),(iii), (I),(II),(III),(IV),(V) Besides the fact the Internal Revenue Services

warns the public that they are not required to provide any information on any form that

fails to comply with 44 U.S.C. §§§ 3506(c)(1)(B), 3507 and 3512(1995), along with

the fact there is no doubt any of the criteria required by these sections appears on any

request for information required by Title 26 and their regulations, and because of the

concern for why the Internal Revenue Service does not provide the information as to

why they are asking and how they intend to use the answers, when and if given,

Appellant, out of an abundance of caution, retained her information and refuse to

 -42-

answer, by remaining silent, as to any questions on the request for 2000, 2001, 2002

and 2003.

It remains impossible to square telling Appellant not to answer any questions

or provide any information with an infamous crime for acting on that advice or

directive by both the Commissioner, Congress, and the Constitution.

The District Court should have either held a closed hearing where the

information could have been more fully developed or the United States District Court

should have dismissed the criminal information as it relied upon an exercise of

remaining silent to make out the criminal claim for deprivation of liberty. Neither did

it do. See Doc. - 101, pg. 23

6. The filing of a “criminal information” which resulted in eight years of

deprivation of liberty belonging to Appellant violated the Fifth Amendment
Grand Jury mandate.

Appellant was given no notice by either law, criminal information, or Court, that

the deprivation of liberty in this case could exceed one year. “Indeed we long ago

declared that the Sixth Amendment right to jury trial ‘is not to be construed as relating

only to felonies, or offenses punishable by confinement in the penitentiary. It

embraces as well some classes of misdemeanors, the punishment of which involves

or may involve the deprivation of the liberty of the Citizen.’" Callan v. Wilson, 127

U.S. 540, 549 (1888); see also Baldwin v. New York, 399 U.S. 66, 70 (1970)
 -43-

The “deprivation of liberty” ordered by the United States District Court equals

eight years. Four years incarcerated and four years under “conditions of release”

house supervision. The Fifth Amendment required the charges against Appellant be

brought by way of Grand Jury indictment. The test of whether a crime is infamous

is when the “punishments include confinement at hard labor, U.S. v. Moreland, 258

U.S. 433 (1922); incarceration in a penitentiary, Mackin v. U.S., 117 U.S. 348 (1886);

and imprisonment for more than a year, Barkman v. Sanford, 162 F.2d 592 (CA5),

cert. denied, 332 U.S. 816 (1947).” Fed. Rule Crim. Proc. 7 (a) has codified these

holdings: "An offense which may be punished by death shall be prosecuted by

indictment. An offense which may be punished by imprisonment for a term exceeding

one year or at hard labor shall be prosecuted by indictment or, if indictment is waived,

it may be prosecuted by information. Any other offense may be prosecuted by

indictment or by information." Brazenburg v. Hayes, 408 U.S. 665, 709 (fn. 24) (1972)

If the Fifth Amendment's promise that "[n]o person shall be held to answer for

a capital, or otherwise infamous crime, unless on a presentment or indictment of a

Grand Jury," U.S. Const. amend. V, means anything, it means that a criminal

indictment must actually issue from a grand jury, and not some other source. The

fundamental concept underlying the Fifth Amendment guarantee is that in order for

an indictment to be recognized as actually issuing from a grand jury, it must be the

 -44-

product of an investigative deliberation that is independent of both the prosecuting

attorney and the court. See U.S. v. Williams, 504 U.S. 36, 49, 112 S.Ct. 1735, 1743,

118 L.Ed.2d 352 (1992) The criminal information brought by U.S. Employee

Langway has resulted in eight years of deprivation of Appellant’s liberty imposed by

the United States District Court. The eight year sentence is something the Fifth

Amendment only allows after the issuance of a properly issued Grand Jury indictment

and not a criminal information filed by U.S. Employee Langway with specific

identification of the statutes and regulations authorizing such deprivation.

The United States District Court should have dismissed the “criminal

information” for violation of Article VII, Amendment V, in the Constitution of the

United States.

7. The common law meaning of the term “penitentiary” in 18 U.S.C. § 4083

is “where felons serve their time.”

The issue here stems from the requirement that due process occur prior to

deprivation of liberty for an infamous crime may be ordered. Under 18 U.S.C. §

4083, Appellant cannot be ordered to a “penitentiary” unless Appellant consents.

Appellant did not consent. Doc.- 79

The issue here remains what does it mean to be ordered to serve the deprivation

of liberty in a penitentiary?

18 U.S.C. § 4083 states that “a Sentence for an offense punishable by

 -45-

imprisonment for one year or less shall not be served in a penitentiary without the

consent of the defendant.” Imprisonment in a penitentiary can be imposed only if a

crime is subject to imprisonment exceeding one year, 18 U.S.C. § 4083. Green v.

U.S., 356 U.S. 165, 183 (1958)

The loss of liberty may not be by confinement of a character which constitutes

infamous punishment. Harvin v. U.S., 445 F.2d 675, 682 (D.C. Cir. 1971). “Actually,

since we are dealing with a criminal statute it should be strictly construed in favor of

the Appellant.” Id. at 690

There is no doubt Appellant was charged by criminal information and that each

of the Four Counts provide for maximum deprivation of 1 year or less. In U.S. v.

Hanyard, 762 F.2d 1226 (5th Cir. 1985) Hanyard contended that the purpose of 18

U.S.C. § 4083 was to separate misdemeanants from felons during their period of

incarceration, and that it is therefore violated by confining him, absent his consent, to

a federal prison camp which houses both misdemeanants and felons. Appellant further

contends that the Bureau of Prisons treats convicted misdemeanants the same as

convicted felons. He relied upon Williams v. Daggett, 377 F. Supp. 1110, 1112 (D.Kan.

1974) for the claim that the “obvious purpose of 18 U.S.C.A. § 4083 is to separate

misdemeanants from felons" which was disapproved on other grounds, Robinson v.

McCune, 536 F.2d 1340, 1342 (10th Cir. 1976).

 -46-

Although the 5th Circuit rejected Hanyard’s claims it did so finding that Congress

intended to treat persons convicted of low level felonies the same as they direct the

treatment of persons convicted of misdemeanors.

The entire reason why a person has the right to a Grand Jury indictment is

because of the perception that crimes involving punishment of greater than one year are

“infamous” crimes.

Under 18 U.S.C. § 3559(a), any offense having a "maximum term of

imprisonment authorized" which is "more than one year" is a "felony." Under 18 U.S.C.

§ 4083, those convicted of federal offenses "punishable by imprisonment for more than

one year may be confined in any U.S. penitentiary," while "[a] sentence for an offense

punishable by imprisonment for one year or less shall not be served in a penitentiary

without the consent of the defendant." U.S. v. Deisch, 20 F.3d 139 (5th Cir. 1994);

quoting U.S. v. Kahl, 583 F.2d 1351, 1355 (5th Cir. 1978) (under section 4083 an

offense carrying a one year maximum potential sentence was not an "infamous crime"

for which the Fifth Amendment required indictment because confinement in a

penitentiary was possible only with defendant's consent). See also Branzburg v. Hayes,

408 U.S. 665, 687 n. 24, 92 S.Ct. 2646, 2659-60 n. 24, 33 L.Ed.2d 626 (1972): "It has

been held that "infamous" punishments include confinement at hard labor, . . . .;

incarceration in a penitentiary, . . .; and imprisonment for more than a year, . . . .

 -47-

Fed.Rule Crim.Proc. 7(a) has codified these holdings: . . . An offense which may be

punished by imprisonment for a term exceeding one year or at hard labor shall be

prosecuted by indictment, or, if indictment is waived, it may be prosecuted by

information. . . .'" Deisch, supra

Infamous crimes have been defined as crimes for which incarceration in a

penitentiary may be imposed. Mackin v. U.S., 117 U.S. 348, 6 S.Ct. 777, 29 L.Ed. 909

(1886); see also U.S. v. Goldstein, 502 F.2d 526 (3rd Cir. 1974)

In U.S. v. Smith, 982 F.2d 757 (2nd Cir. 1992) the 2nd Circuit held the

“distinction between prisons, where only serious offenders may be housed, and jails,

where misdemeanants are housed, is, as it has been, the critical one” in “being branded

a felon.” A misdemeanant under the amended statute cannot be required to serve his

sentence at a penitentiary without his consent. Dorssart v. Blackwell, 277 F. Supp. 399

(N.D.Ga. 1967).

The Department of Justice defines “institution” as a “U.S. Penitentiary, a Federal

Correctional Institution, a Federal Prison Camp, a Federal Detention Center, a

Metropolitan Correctional Center, a Metropolitan Detention Center, a U.S. Medical

Center for Federal Prisoners, a Federal Medical Center, or a Federal Transportation

Center.” See 28 CFR 500.1(July 2007)

18 U.S.C. § 3231 authorizes the District Court to have jurisdiction only over the
 -48-

offenses alleged against the laws of the United States. Section 7203 provides that a

transgression of the words therein is a “misdemeanor.” No provision of Federal Law

defines the meaning of the term “misdemeanor” for purpose of section 7203. Section

7203 does provide that punishment shall not exceed “1 year” but in no way describes

whether the “misdemeanor” is a Class A, B, C, or infraction. In 1984, Congress

enacted 18 U.S.C. § 3581 which begins:

“A Defendant who has been found guilty of an offense may be sentenced

to a term of imprisonment.”

Section 3581 then proceeds to describe different classes of felonies and different

classes of misdemeanors. See subsection (b). 26 U.S.C. § 7203 does not square with

18 U.S.C. § 3581. Each of the three classes of misdemeanors all fall within the “1

year or less” as section 7203 provides. Congress may have intended for “1 year or

less” to mean a “Class A Felony” however section 7203 predates section 3581 by more

than 28 years.

Section 7203 was enacted in the mid 1950s. U.S. v. Hicks, 947 F.2d 1356, 1359

(9th Cir. 1991) Section 3581 was enacted in 1984. How can the 1984 enactment of

section 3581affect section 7203 while 44 U.S.C. § 3512, originally enacted in 1980, did

not? It is simply not logical to argue that Congress changed the meaning of

“misdemeanor” under section 7203 without holding Congress included section 7203
 -49-

within the phrase “notwithstanding any other provision of law” as announced by

Congress at section 3512 of Title 44.

Appellant believes that without any definition for the term “misdemeanor” under

section 7203, classifying A,B or C, the result can be that a person convicted a major

felonies can wind up with a lessor sentence of imprisonment than a person convicted

of a misdemeanor.

The U.S. Department of Justice defines institution as penitentiary and 18 U.S.C.

§ 3581 states that once a person is “found guilty” “may be sentenced to a term of

imprisonment. Prison is the key word that defines infamous and not the distinction

between felony and misdemeanor. No person being “found guilty” of any crime within

section 7203 knows section 7203 associates with section 3581 in any way.

A penitentiary is defined in Black’s Law, 6th Edition as the place where felons

serve their sentences. The Appellant currently may be subject to penalty and as such

subjection, that penalty, must be imposed according to where misdemeanants only

spend their deprivated time.

Appellant did not consent to placement in any prison, penitentiary, or any other

place where felons are placed to serve their time. Appellant likewise does not consent

to being placed where persons waiting to be sentenced or charged with felonies reside,

nor does the Appellant consent to serve any sentence out where persons convicted of
 -50-

felonies currently await transition back into society.

8. Congress has no Power in Article III, Section 2, Clause 3, or anywhere else

in the Constitution of the United States, to place the controversy between
U.S. Employee Langway and Appellant, as stated in the “criminal
information” within the Judicial Power of the United States.

The term “crime” is not defined in the Constitution. The term crime does appear

several times in the Constitution, prior to the adoption of the Fifth and Sixth

Amendments. Under Article I, Section 3, Clause 7, in the case of “Impeachment,” such

“shall not extend further than to removal from office: but the party convicted shall

nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment,

according to Law.” Here, the same claim for impeachment must be brought by

indictment, if further punishment, beyond removal from office and the prohibitions that

attach is sought.

Under Article III, Section 2, Clause 3, the “trial of all Crimes, except in Cases

of Impeachment, shall be by jury” as well as the Trial shall be either held in the State

where “said Crimes shall have been committed” or at a place where Congress “may by

Law have directed if said Crimes were not committed within any State.” Here,

“impeachment” is labeled a “crime” but excluded from Article III, Section 2, Clause

3, involving “place” of trial provision.

Under Article I, Section 8, Clause 10, Congress was enumerated with power to

punish Piracies and Felonies committed on the high Seas, and offense against the law
 -51-

of Nations.” See Argentine Republic v. Amerada Hess Shipping, 488 U.S. 428, 436

(1989)( in enacting 28 U.S.C. § 1605(a)(3) “Congress also rested the FSIA in part on

its power under Art. I, § 8, cl. 10, of the Constitution ‘[t]o define and punish Piracies

and Felonies committed on the high Seas, and Offenses against the Law of Nations.’”

Under Article II, Section 4, neither the President, Vice President, nor any civil

officers of the U.S., can be “removed from office” on Impeachment unless they are

convicted of “Treason, Bribery, or other high Crimes and Misdemeanors.” Here

“Misdemeanor” is made equal to a crime warranting impeachment.

Under Article IV, Section 2, Clause 2, a “person charged in any State with

Treason, Felony, or other Crime” shall be delivered to the “State having Jurisdiction

of the crime.” Congress is given the Power at Article III, Section 3, Clause 2, to state

what the punishment for Treason shall be if committed within any State and no other

Power.

There can be no doubt that the crime of failure to provide answers to the U.S. on

Form 1040, as allegedly required by “Title 26" and “regulations” placed the alleged

“misdemeanor” “violation” of 26 U.S.C. § 7203 within the jurisdiction of the State

wherein the alleged crime was committed.

26 U.S.C.A. § 6091(b)(1)(A) “prescribes the place of filing as ‘in the internal

revenue district in which is located the legal residence or principal place of business
 -52-

of the person making the return. . . .’ The federal statute and regulations lay down the

rule...” U.S. v. Taylor, 828 F.2d 630 (10th Cir. 1987)

The alleged crime of violating section 7203 is required to have been committed

in the State where the “legal residence” is and not outside the State, as then would

Article III, Section 2, Clause 3, provides Congress with the exclusive authority to direct

a place for trial of such alleged infamous crime.

It is as easy to see as why does an Attorney licenced by the State of Georgia need

to be licenced to practice in the United States District Court for the District of Georgia

as a separate or in addition to the State license? It is because under Article IV, Section

1, no reciprocating agreement between any State and the United States exists under the

“full faith and credit clause.”

A violation alleged under 26 U.S.C. § 7203 is a misdemeanor that warrants a

Jury Trial. It also demands a Grand Jury indictment. “In the third clause of section

2, Article III, of the Constitution it is provided that "the trial of all crimes, except in

cases of impeachment, shall be by jury;" and in Article VII Amendment VI, that "in all

criminal prosecutions the Appellant shall enjoy the right to a speedy and public trial by

an impartial jury of the State and district wherein the crime shall have been

committed." If there be any conflict between these two provisions the one found in the

amendments must control, under the well-understood rule that the last expression of the
 -53-

will of the lawmaker prevails over an earlier one. Schick v. U.S., 195 U.S. 65,68

(1904)

The body of the Constitution does not include references to “a petty offense.”

Schick, at 69 Then, the Constitution must be read in the light of the common law.

"That,’ said Mr. Justice Bradley, in Moore v. U.S., 91 U.S. 270, 274, referring to the

common law, "is the system from which our judicial ideas and legal definitions are

derived. The language of the Constitution and of many acts of Congress could not be

understood without reference to the common law.’” Again in Smith v. Alabama, 124

U.S. 465, 478, is this declaration by Mr. Justice Matthews: "The interpretation of the

Constitution of the United States is necessarily influenced by the fact that its provisions

are framed in the language of the English common law, and are to be read in the light

of its history." In U.S. v. Wong Kim Ark, 169 U.S. 649, 654, Mr. Justice Gray used this

language:

"In this, as in other respects, it must be interpreted in the light of the

common law, the principles and history of which were familiarly known
to the framers of the Constitution. Minor v. Happersett, 21 Wall. 162; Ex
parte Wilson, 114 U.S. 417, 422; Boyd v. U.S., 116 U.S. 616, 624, 625;
Smith v. Alabama, 124 U.S. 465." See also Kepner v. U.S., post, 100; 1
Kent, Com. 336.

Blackstone's Commentaries are accepted as the most satisfactory exposition of

the common law of England. At the time of the adoption of the Federal Constitution it
 -54-

had been published about twenty years, and it has been said that more copies of the

work had been sold in this country than in England, so that undoubtedly the framers of

the Constitution were familiar with it. In this treatise, vol. 4, p. 5, is given a definition

of the word "crimes:"

"A crime, or misdemeanor, is an act committed, or omitted, in violation

of a public law either forbidding or commanding it. This general
definition comprehends both crimes and misdemeanors; which, properly
speaking, are mere synonymous terms; though in common usage the
word `crimes' is made to denote such offenses as are of a deeper and more
atrocious dye; while smaller faults and omissions of less consequence are
comprised under the gentler name of `midemeanors' only."

Schick, at 70; See also Noah Webster 1828 Dictionary

In the light of this definition we can appreciate the action of the convention

which framed the Constitution. In the draft of that instrument, as reported by the

committee of five, the language was "the trial of all criminal offenses . . . shall be by

jury," but by unanimous vote it was amended so as to read "the trial of all crimes." The

significance of this change cannot be misunderstood. If the language had remained

"criminal offenses," it might have been contended that it meant all offenses of a

criminal nature, petty as well as serious, but when the change was made from "criminal

offenses" to "crimes," and made in the light of the popular understanding of the

meaning of the word "crimes," as stated by Blackstone, it is obvious that the intent was

to exclude from the constitutional requirement of a jury the trial of the petty criminal
 -55-

offenses. But we need not go beyond the express rulings of the Supreme Court.

In Callan v. Wilson, 127 U.S. 540, reference was made to many decisions of

state courts, holding that the trial of petty offenses was not within any constitutional

provision requiring a jury in the trial of crimes, and on page 557 it was said:

"Except in that class or grade of offenses called petty offenses, which,

according to the common law, may be proceeded against summarily in
any tribunal legally constituted for that purpose, the guarantee of an
impartial jury to the Appellant in a criminal prosecution, conducted either
in the name, or by or under the authority of, the United States, secures to
him the right to enjoy that mode of trial from the first moment, and in
whatever court, he is put on trial for the offense charged."

Schick, supra

The criminal information seeking deprivation of Appellant’s liberty gave no

notice of the eight year deprivation handed down by the United States District Court.

The right to be indicted by a Grand Jury for any crime against the Laws of the United

States is identified in the Constitution as a mandate. Misdemeanor are supposedly less

than crimes yet the final Judgment and Commitment Order says “Judgment in a

Criminal Case.” Doc. 93, pg.1

The U.S. Employee Langway sought to violate the Fifth Amendment Right of

Appellant to be charged by a neutral body of citizens by bringing the criminal

information, instead of the required indictment, and then seeking the label of infamy

upon Appellant. If a Government “officer” can be impeached on evidence of

 -56-

“misdemeanor” and then subject to being indicted, tried, judges and punished for the

misdemeanor, then so to Appellant was required to be indicted, tried on the theory of

that indictment without variance, as the Fifth Amendment and Sixth Amendment taken

together clearly mandate.

Article III, Section 2, Clause 3, places the trial of any crime against the Laws of

the United States within the State the crime against the Laws of the United States was

allegedly committed. This would also place only in that same State the power to charge

for such crime against the Laws of the United States under the laws therein. The Fifth

Amendment says no such crime against the Laws of the United States shall be levied

except on presentment or indictment by a Grand Jury. T h e 1 0 t h A me n d me n t

reserves all powers not enumerated to the United States by the Constitution of the

United States. No such power was enumerated to the United States to provide the

place where the trial of any alleged crime against the Laws of the United States is to

take place unless the crime was not committed within any State. Article IV in the

Constitution of the United States defines the meaning and intention of the term “State”

as meaning those entered in the Union equally with all other States of the Union.

Today, there is 50 such States and the State of Georgia was one of the original 13

States.
 -57-

There simply was no standing for U.S. Employee Langway to commence his

claims in the Clerk’s Office for the United States District of Georgia, in the Northern

District. The Article III United States District Court Judge Orinda D. Evans had no

enumerated Judicial Power of the United States to allow her office to hold “trial” over

the claims made by U.S. Employee Langway against Appellant.

Appellant respectfully requests whoever represents U.S. Employee Langway’s

triumph in this appeal to specifically identify what specific words at Article III in the

Constitution of the United States U.S. Employee Langway relied upon to commence

his cause against Appellant. Where in Article III, Section 2, Clause 2, is the case

against Appellant authorized? What standing does the United States of America have

to bring any claims of crimes against Appellant within the Judicial Power of the United

States? How is the crime of “omission” committed outside the State of Georgia?

There should be no doubt whether any such Article III, Section 2, Clause 2 or 3,

Judicial Power of the United States applies to the claims made by U.S. Employee

Langway, in the name of the United States of America, against Appellant. There

simply is no such words to place the trial of U.S. Employee Langway’s criminal claims

within Article III Judicial Power of the United States.

 -58-

CONCLUSION

Appellant respectfully requests this Court enter an Order reversing the decision

by the office of the United States District Court for the Northern District of Georgia,

in its Final Judgment in a Criminal Case, under its supervisory power finding the Court

had no Article III Judicial Power of the United States to enter such Judgment; to

reverse or set aside the Court’s decisions to deny dismissal of the criminal information

due to the ever changing theory; find the United States District Court failed to allege

an offense under section 7203; further finding the penalty claims were prohibited by

the Paperwork Reduction Act of 1995; and that U.S. Employee Langway lacked

standing to be a party or represent the United States of America in the claims he made

within his “criminal information.”

Respectfully submitted,

________________________
Sherry Peel Jackson
At 1560 Fieldgreen Overlook
Stone Mountain, Georgia Republic [30088]
770-981-7758
 -59-

CERTIFICATE OF SERVICE

I HEREBY CERTIFY THAT a true copy of Appellant’s Brief and Record

Excerpts was mailed on April 30, 2008, to:

Richard Langway
Amy Levin Weil
Assistant U.S. Attorney
600 Richard B. Russell Building
75 Spring St. S.W.
Atlanta Georgia 30303

_______________________
Server
 -60-

CERTIFICATE OF COMPLIANCE

I, Sherry Peel Jackson, certify this brief complies with the type-volume limitation

set forth in FRAP 32(a)(7)(B). This brief contains 13944 words beginning at page 1

and ending with conclusion. Type font is wordperfect 11 in 14 point Times New

Roman, and I cannot provide a true, correct, complete, and uncorrupted copy of the file

by diskette or by e-mail because I am currently in prison.

________________________