Fraughton's brief in Tenth Circuit 15-4103

7/25/2019 Fraughton's brief in Tenth Circuit 15-4103

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UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

./

S

VERNON

D

FRAUGHTON and OFFICE OF,

FIRST PRESIDING OVERSEER FOR THE

POPULAR ASSEMBLY OF SHARED

ENLIGHTMENT MINISTRY, VERNON

FILED

United

States

Court

of

ppeals

Tenth Circuit

D. FRAUGHTON, FIRST PRESIDING

OVERSEER,

ELISABETH A SHUMAKER

Clerk

Appellant(s ),

v

Case No. 15-4103

UNITED STATES OF AMERICA,

Appellee.

APPELLANT/PETITIONER'S OPENING BRIEF

(In accordance of the Appellant Form A-12)

1

Statement

of

the Case.

(This should be a brief summary of the proceedings in the district court.)

Plaintiffs ( Appellee ) counsel who is from the Department

of

Justice,

Washington D.C., issues the Complaint that cites sections from the Internal Revenue

Code abusing case-law for political purposes with willful intent to deceive the hearer.

Federal courts, incidentally, are NOT allowed to involve themselves in such political

questions, and therefore should not allow this type of abuse

of

case-law, but judges

who are fond of increasing their retirement benefits will often acquiesce. This kind of

bias on the part of federal judges, incidentally, is highly illegal under 28 U.S.C. 144

and 455. To top it all, the Complaint has faulty allegations because

of

the numerous

procedural irregularities insomuch that Defendant(s)/Appellant(s) ( Appellant(s) ) by

and through an informed American, a Secured Party and Agent that holds first in line,

first in time rights

of

ens legis(s), establishes in the Complaints Answer, pursuant of

Fed.R.Civ.P., Rule 12(b), a pretrial challenge

of

the above procedural aspects that lack

legal sufficiency

of

outstanding federal tax liabilities assessed against defendant

Appellate Case: 15-4103 Document: 01019490593 Date Filed: 09/14/2015 Page: 1


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VernonD. Fraughton and to foreclose federal tax liens, who also declares that the

Complaint is qualified under 26 U.S.C. 7401 and 7403. Appellant(s) are victimized

through actionable negligence of Complaint (Doc. 2) of claim(s) of the United States

to reduce to judgment misapplied federal tax assessment(s), lien(s), levie(s), and/or

seizure(s).

Said Rule 12(b) provides Appellant(s) with Defenses and Objections: When and

How

Presented; thereby complying with Rule 12(a)(l)(A) asserts the specific

affirmative pretri l defense ofFed.R.Civ.P., Rule 12(b)(6): failure to state a claim

upon which relief can be granted. Appellant(s) pretrial right ofAffirmative Defense,

pursuant Fed.R.Civ.P., Rule 8(c), is presented within the timely Answer

of

the

Complaint (Doc. 10) and inasmuch as the Answers with assertion

of

Affirmative

Defense are precise and direct; Appellant(s) understand pleadings are not the place for

disclosing the detailed facts or elaborating theories

of

relief. Appellant(s) having

asserted pretrial Rule 12(b)(6) and fully expected having a burden

of

raising facts

relevant to issues based on procedural irregularities that explicitly include Local

DUCivR 16-l(b) [DUCivR 16-l (a) and (b)]. Clearly, the Local Civil Rule provides:

1 that all prose defendants are exempt from pretrial scheduling, DUCivR 16-

l(a)(l)(A)(ii); and 2) The court generally will conduct the final pretrial conference in

all contested civil cases DUCivR 16-l(b); Whereupon the, Court [Magistrate Judge

Evelyn

J

Furse] proceeds without

on

record a referral of Judge Kimball

in

violation

of

28 U.S.C. 636(b)(l)(B) (Doc. 9) [Referral by District Court Judge Dale A. Kimball

only refers Magistrate Judge Paul M. Warner, and the record shows none other] - the

matter is civil being neither post-trial and criminal 28 U.S.C. 636(b)(l)(B) a judge

may designate a magistrate judge to hear and determine any pretrial matter pending

before the court, ex ept ... to dismiss for failure to state a claim upon which relief can

be granted

. . . .

28

U.S.C. 636(b)(l)(A)

As a matter

of

interest, the Rules ofDecision Act, 28 U.S.C. 1652, requires that

the laws of the states

of

he Union are the only rules

of

decision in federal courts. This

means that federal courts MUST cite state law and not federal law in all tax cases and

MAY

NOT cite federal case-law, which Appellee completely ignores.

And wouldn 't you know,

of

course, there is not an allowance for a written pretrial



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evidentiary format that provide for Appellant(s) full exposure

of

the procedural

deficiencies of the complaint, therefore the faulty challenged Complaint remains

reserved and unchallenged. Appellee persistently stifles by repudiation

of

Appellant(s) attempt for discovery under Rules 36(a)(l)(A) [Rule 26 (b)(l)], 36(a)(3),

and Local DUCivR 16-1 (a)(l)(A)(ii). Appellee's admission response is untimely of

within 30 days after being served pursuant Federal Civil Rule ofProcedure, Rule

36(a)(3) and is admitted thereby the Rule of Law in favor of Appellant(s).

Thusly, Appellant(s) ability of showing the Court

of

such includes a protected

equal right of pretrial Fifth Amendment Due Process under an equal opportunity for

elimination ofAppellee's misapplied federal tax claim(s), which are in fact inundated

of

procedural irregularities, but is denied complete exposure by Appellee and/or in the

record

of

the Court, supra. Appellant(s) by reserving their due process right

of

Rule

12(b)(6) by design of and supported by Fed.RCiv.P., Rule 12(h)(3) that the

Affirmative Defense challenge is fully addressable at any time, because the record is

properly documented that Appellant(s) never waive such.

Rule 12(b)(6) Federal Rule

of Civil Procedure, remains prevalent, under denial of

Appellant(s) due process ability

of

attacking the complaint pursuant the procedural

pretrial 12. hl defense and thereby Appellant(s) appeal

of

Appellee's failure to state

a

claim prevails accordingly.

2 Statement

o

Facts Relevant to the Issues Presented for Review

A The acts

oflevy,

summons and search and seizure are all acts of seizure and

subject to the same authority under the police powers of a state. I.RS. seizure is

limite by statute to certain specific items. Title 26 U.S.C. 7321 and

7608(b)(2)(C) strictly limit seizure authority to property subject to forfeiture.

The definitions

of

property subject to forfeiture are promulgated in 26 U.S.C.

7301 through 7304. Appellee's I.RS.) alleged Complaint of authorized property

is not part of the statutory certain specific items under property subject to forfeiture

and the law precedence causes a lack of the authority for seizure by the Secretary

pursuant 26 U.S.C. 7401 and 7403.

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B. Title 26 U.S.C.

7321 Authority to seize property subject to forfeiture. Any

property subject to forfeiture to the United States under any provision

of

this title

may be seized

by

the Secretary; and 7608(b)(2)(C) Authority of internal revenue

enforcement officers under the Enforcement

of

Subtitle E and forfeiture provisions

of

Subtitle E oflaws pertaining to liquor, tobacco, and firearms whom the

Secretary charges with the duty

of

enforcing any of the criminal, seizure, or

forfeiture provisions of Subtitle E or any other law of the United States pertaining

to the commodities subject to tax under such subtitle (not applicable to the civil

complaint, which does not pertain to liquor, tobacco, and firearms). Accordingly,

Appellee's claim of the Secretary Authorization under 26: 7401 is a core

procedural inegularity simply, that there cannot be a civil action for collection,

recovery of taxes, fine, penalty, or forfeiture be commenced by the Secretary and

Attorney General or his delegate is the core faulty procedural ill'egularity of

Appellee's Complaint that lacks having a reasonable basis in law of being

property subject to forfeiture and in fact is significant grounds for Rule 12(b)(6)

substantiated under Rule 12(h)(3).

a

However, because both 7401 and 7403 are in want

of

authorization by the

Secretary and Attorney General or his delegate for authorizing that the action

be commenced, the Court 's authority for adjudication and decree has no

validly since Appellee's case under 26 U.S.C. 7321 is null and void and is by

law in want of property subject to forfeiture pursuant 26 U.S.C. 7301

through 7304 and the Court is found in violation of26 U.S.C. 7403(c) to: . .,

proceed to adjudicate all matters involved therein and finally determine the

merits of all claims to and liens upon the property . . . . Appellant(s) add that

Appellee's having knowledge of these fact(s) being the authorities as Tax

Division(s) for the U.S. Attorney Generals Office with all Assistant U.S.

Attorney Generals including the District ofUtah, U.S. Attorney General and

all, District of Utah, Assistant U.S. Attorney Generals. Because the Complaint

invalidates the case.

Parallel Table ofAuthorities and Rules, from the GPO Access lists rulemaking

authority for the enforcement of statutes under Title 27 C.F.R. Part 70 which only

pertain to

m nuf cturers

of alcohol, tobacco, and firearms and therefore eliminates

any Judicial Proceedings - Civil Action

By

The United States pursuant 70.191.

(26 U.S.C. 7401) and 70.192 Action to enforce lien or to subject property to

payment of tax (26 U.S.C. 7403).

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(As noted

in

these sections, Internal Revenue Enforcement Officers, when

enforcing both Subtitle E taxes and other taxes as defined in 26:7608, are given

authority to make seizures of property subject to forfeiture.

t

becomes

important to know at this point exactly what property comes within the meaning of

prope1ty subject to forfeiture since

if

the property is outside the scope of the

meaning of property subject to forfeiture, the Internal Revenue Enforcement

Officer is not authorized to seize it.)

C The acts challenging procedural aspects of the lien(s), levy(ies\ and seizure(s) it is

imp01iant to know the difference between a levy and a seizure:

a

A seizure means the act of taking into custody or control something which

before was not in custody or control.

b. A

m

s not a single act, but rather is the whole process by which the money

needed to pay a tax is raised, either

by

exercising control over something

already in custody and control of the government

or

by distraining and seizing

property not already in custody of the government. The levy process includes

the sale

of

levied property and the application

of

the proceeds to the unpaid tax.

A Notice

of

Lein is insufficient without a A Notice

of

Levy is

not

a levy

or

seizure. The Notice

of

Levy has no legal effect in the private sector unless

it

is

accompanied with a Judicial Court Order and a Notice

of

Seizure. A levy

requires that prope1iy be brought into legal custody through seizure, actual

or

constructive, levy being

an

absolute appropriation

in

law of the property levied on,

and mere notice

of

intent to levy is insufficient. United States

v

O'Dell, 6 Cir.,

1947, 160F.2d 304, 307. Accord, n re Holdsworth, D.C.N.J.1953,

113

F.Supp.

878, 888;

United States

v

Aetna Life Ins. Co. of Hartford, Conn., D.C.Conn.1942,

146 F.Supp. 30, 37,

in

which Judge Hincks observed that he could find no statute

which says that a mere notice shall constitute a 'levy.' There are cases, which hold

that a warrant for distraint is necessary to constitute a levy. Givan v Cripe, 7 Cir.,

1951, 187 F.2d 225; United States v O'Dell, supra.

3 Statement

o

Issues.

a

First

Issue:

The Complaint's allegation is based on .. outstanding federal tax liabilities

assessed against defendant. . . .

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Argument and Authorities:

The government:

1 does not assess defendant's alleged income taxes as required by 26 U.S.C.

6201 6203; and

2) does not send defendant proper notices

of

assessment as required by 26 U.S.C.

6331-6333 6335.

b. econd Issue:

This civil action is fatal for want of an authorization for suit.

Argument and Authorities:

The government:

1) use of 6 U.S.C. 7401 and 7403 on behalf of the Court's authority for

adjudication and decree lacks validly since 7401 and 7403 cannot provide

relief and therefore cannot state a claim, inasmuch that 26 U.S.C. 7321

invalidates the government Complaint as null and void for want ofvalid

property subject to forfeiture.

2) 26 U.S.C. 7301 through 7304 is missing for authorizing the civil action as

a legitimate suit.

3) does not claim custody or control of alleged property, which before was not in

custody or control, so clearly there cannot be foreclosure against a parcel of

real property under such null and void Complaint.

c.

Third

Issue:

Not only is the Complaint void -

The government:

Does not have claim of urisdiction over federal areas within the states that

based on the June 1957, the United States govemment published a work

entitled Report of the

Interdepartmental Committee for the Study of Jurisdiction Over Federal Areas

Within the States, Part II, and this report is the definitive study on this issue.

Therein, the Committee stated:

The Constitution gives express recognition to but one means

of

Federal

acquisition of legislative jurisdiction -- by State consent under Article I,

section

8,

clause 17. .. Justice McLean suggested that the Constitution

provided the sole mode for transfer

of

jurisdiction, and that

if

this mode is not

pursued, no transfer of urisdiction can take place, Id., at 41.

It scarcely needs to be said that unless there has been a transfer

of

jurisdiction (

1

pursuant to clause 17 by a Federal acquisition of land with

State consent, or (2) by cession from the State to the Federal Government, or

unless the Federal Government has reserved jurisdiction upon the admission

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CERTIFIC TE OF SERVICE

I

Vernon-DeLyle :Fraughton, Agent for Appellant(s) certify,

that September

9, 2015,

a true and

correct

copy of the APPELLANT/PETITIONER S OPENING BRIEF

(In accordance of the Appellant Form A-12),

as

captioned above via U.S. Postal Service

mail to:

JOHN W. HUBER, United States Attorney for the District

of

Utah

JOHNK MANGUM, Assistant United States Attorney for the District of Utah

185 South State Street, Suite 300

Salt Lake City, Utah 84111

ROBERT

J

BRANMAN, Attorney

U.S. Department

of

Justice, Appellate Section,

P.O. Box 502

Ben Franklin Station

Washington, D.C. 20044-0502

CERTIFIC TE OF COMPLI NCE

I certify that the total number

of

pages I am submitting the Appellant/Petitioner s

Opening Brief is 30 pages or less.

Date: September

9 2 15

Signature

( l ~ ; ~ ~ . l . . - - - ' ; . ~ ~ = - 7 - # - - ' ~ ~ ~ ~

Vernon-DeLyle

Appellant( s)

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Fraughton's brief in Tenth Circuit 15-4103

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