Sie sind auf Seite 1von 21

1 ANTHONY P. CAPOZZI, CSBN O68525 OFFICES OF ANTHONY 2 LAWW. Shaw Avenue, Suite 102P.

CAPOZZI 1233 3 Fresno, CA (93711 221-0200 Telephone: 559) 4 Fax ( 559) 221-7997 E-mail: Capozzilaw@aol.com 5 Attorney for Defendant, 6 MICHAEL S. IOANE 7 8 9
UNITED STATES OF

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
Case No. 1:09CR00142 LJO Defendant=s Motion to Dismiss for Selective Prosecution and for discovery Date: Time: Dept:

10 AMERICA, 11 Plaintiff, 12 13 14
MICHEAL S. IOANE,

v.

15 Defendant. 16 17 18 19 20 21 22 23 24 26 27 28

Defendant Michael S. Ioane moves the Honorable Court to Dismiss the above

captioned matter due to prosecutorial misconduct in the nature of selective prosecution and as grounds therefore hereby states: Defense believes, and therefore asserts, that this instant matter is an ipso facto selective prosecution based upon the invidious discriminatory animus that the Accused is involved in protected First Amendment and political activity, and that the prosecution holds personal animosity toward this defendant. This includes protected due process issues guaranteed by the

25 United States Constitution.


1

1 2

SELECTIVE PROSECUTION Reference: United States v. Cyprian, 756 F.Supp. 388 (USDC ED, INDIANA,

3 HAMMOND DIV, 1991) Allen Sharp, Chief United States District Judge. The opinion of the 4 court was delivered by: SHARPMEMORANDUM OPINION AND ORDER ALLEN SHARP, 5 6 *fn1 7 8 9
(1982). So long as the prosecutor has probable cause to believe that the accused committed an [1] In our criminal justice system, the government retains broad discretion of whom to prosecute. United States v. Goodwin, 457 U.S. 368, 380 n. 11, 73 L. Ed. 2d 74, 102 S. Ct. 2485

CHIEF UNITED STATES DISTRICT JUDGE I. Synopsis of the Law of Selective Prosecution

10 11
offense defined by statute, the decision whether to prosecute, and what charge to file or bring

12 before a grand jury, generally rests entirely in his discretion. Bordenkircher v. Hayes, 434 U.S. 13 357, 364, 54 L. Ed. 2d 604, 98 S. Ct. 663 (1978). 14
[2] Although prosecutorial discretion is broad, it is not unfettered. Selectivity in the

15 enforcement of criminal laws is subject to constitutional constraints. United States v. Batchelder, 16


442 U.S. 114, 125, 60 L. Ed. 2d 755, 99 S. Ct. 2198 (1979). In particular, the decision to

17 prosecute 18 may not be deliberately based upon an unjustifiable standard such as race, religion or other 19 20
rights. Goodwin, 457 U.S. at 372.

arbitrary classification, Bordenkircher, 434 U.S. at 364, including the exercise of constitutional

21 22
[3] A claim of selective prosecution attacks not the merits of the prosecutor's case against the

23 defendant, but the prosecutor's choice to proceed against the defendant while declining to bring 24 similar criminal charges against others who appear equally culpable. In effect, a defendant's 25 selective prosecution challenge asks of the prosecutor, "Why have you singled me out?" 26 [4, 5] It is appropriate to judge selective prosecution claims according to ordinary equal 27 28
2

protection standards, *fn2 Oyler v. Boles, 368 U.S. 448, 456, 7 L. Ed. 2d 446, 82 S. Ct. 501

2 (1962), which prohibit a state from taking action which would "deny to any person within its 3 jurisdiction the equal protection of the laws." This guarantee, which applies with respect to the 4 enactment of laws by the legislative branches, also extends to the conduct of the executive 5 branches in the enforcement of these laws. In the oft-quoted language of Yick Wo v. Hopkins, 6 7 8
Though the law itself be fair on its face and impartial in appearance yet, if it is applied and 118 U.S. 356, 30 L. Ed. 220, 6 S. Ct. 1064 (1886):

9 administered by public authority with an evil eye and an unequal hand, so as practically to make 10 unjust and illegal discriminations between persons in similar circumstances, material to their 11 rights, the denial of equal justice is still within the prohibition of the Constitution. 12 13 14 15
This is because claimants bear a heavy burden to overcome the presumption of legal regularity in [6] A claim of selective prosecution is not likely to succeed, for courts "have found only a handful of equal protection violations" *fn3 arising out of the charging decisions of prosecutors.

16 enforcement of the penal law by proving the three essential elements of a discriminatory 17 prosecution claim: (1) that other violators similarly situated are generally not prosecuted; (2) that 18 the selection of the defendant was intentional or purposeful; and (3) that the selection was 19 pursuant to an arbitrary classification. (Each element is later discussed in greater detail.) 20 21 22 23
prosecution commonly assert that the defendant must prove the discrimination was intentional or purposeful. In Oyler v. Boles, 368 U.S. 448, 7 L. Ed. 2d 446, 82 S. Ct. 501, the Supreme Court

[11] B. Intentional or Purposeful. Both the federal *fn4 and state cases dealing with selective

24 declared there is no equal protection violation unless the selection was deliberately based upon 25 an unjustifiable standard. There are effectively three impermissible bases for prosecutorial 26 selectivity, that is, three factors that may not motivate a prosecutor to proceed against a particular 3 27 28

1 3

defendant: (1) race, religion, or other suspect classification; (2) a desire to impede the exercise of

2 constitutional, usually first amendment, rights; and (3) personal animosity toward the defendant.
[14] C. Arbitrary Classification. In Oyler v. Boles, 368 U.S. 448, 7 L. Ed. 2d 446, 82 S. Ct.

4 501, the Supreme Court emphasized that the conscious exercise of some selectivity in 5 enforcement is not in itself a federal constitutional violation. To prevail on an equal protection 6 7 8
race or religion. It is far from clear just what constitutes an "arbitrary classification" in this claim, a defendant must show that he was selected pursuant to an arbitrary classification, such as

9 context. A rather limited number of such classifications have routinely been held or assumed to 10 be arbitrary; those include: race, national origin, gender, political activity or membership in a 11 political party, union activity or membership in a labor union, or more generally the exercise of 12 first amendment rights. 13 14 15 charge to file or bring before a grand jury. United States v. Pitts, 908 F.2d 458, 460 (9th Cir. 16 1990). This court has held that a denial of motion to dismiss for selective prosecution is reviewed 17 under a clearly erroneous standard. United States v. Gutierrez, 990 F.2d 472, 475 (9th Cir. 1993). 18
See United States v. Benny, 786 F.2d 1410, 1418 (9th Cir.), cert. denied, 479 U.S. 1017 (1986); United States v. Christopher, 700 F.2d 1253, 1258 (9th Cir. 1983), cert. denied, 461 U.S. 960 (1983). This standard was chosen because selective prosecution, more than vindictive

Prosecutors have wide discretion in deciding whether or not to prosecute and what

19 20 21

22 prosecution, lends itself to the fact-finding standard. United States v. Wilson, 639 F.2d 500, 23 503 n.2 (9th Cir. 1981); see also United States v. Leidendeker, 779 F.2d 1417, 1418 (9th Cir. 24 1986) (The facts upon which a district court bases its denial of a motion to dismiss for 25 26 27 28
selective prosecution are reviewed under the clearly erroneous standard.). 4

The district courts denial of discovery relating to a selective prosecution claim is

2 reviewed for an abuse of discretion. United States v. Bourgeois, 964 F.2d 935, 937 (9th Cir. 3 1992) (resolving prior conflict between abuse of discretion standard and clearly erroneous 4 standard). 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
12. Special Agent Brian Hodges 13. Special Agent Michele M. Casarez 14. Special Agent Brian Applegate 15. Special Agent Jean Nole 16. Lauren M. Castaldi, AUSA 17. G.Patrick Jennings, AUSA 5 6. Revenue Officer Michael Hoos 7. Revenue Officer Fred Chynoweth 8. John A. DiCicco, Acting Assistant Attorney General 9. Verna Santos AUSA 10. Special Agent Kent Spjute 11. Ronald A Cimino, Chief Western Criminal Enforcement Section subpoenas for: 1. Mark Eugene Cullers AUSA, Therefore, the Defense requests that the Honorable Court immediately issue the attached

2. James Richard Terzian AUSA 3. Susan Phan AUSA 4. Lawrence G. Brown, acting United States Attorney 5. Dennis Collins, Revenue Officer

Defendant believes that the following has motivated selective prosecution further

2 documented by Grand Jury Transcripts, Affidavits in Support of Search Warrants, Police 3 Reports, Jail booking reports including: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
6 same no allegations of criminal misconduct. (g) Ninth Circuit Court 09-73948, pending appeal of tax court decision. (h) Numerous requests made by defendant Ioane to the Treasury Inspector General against various IRS agents, IRS attorneys, CID agents and IRS and United States. United States moved to for dismissal and the court denied the motion, then the United States moved to stay proceedings. (d) Tax Court case docket number 9903-06, went to trial in January of 2008, no mention of criminal indictment or investigation by the civil attorneys, and in fact claimed no criminal allegations against defendant Ioane. (e) Ninth Circuit Court pending 09-70708 regarding appeal from tax court. (f) Tax Court appeal from collection due process hearing case number 19292-07, caused by the IRS failure to timely remove liens; (b) Case # 1:07-CV-00620, USDC, Fresno CA. suit against IRS, superiors, and supervisors for wrongful search warrant. IRS motion to dismiss was denied, lawsuit filed April 2007. IRS moved to stay proceedings after they lost motion to dismiss. (c) Case # Civ F-07-1129, USDC, Fresno CA suit for Quite Title against IRS (a) Case # 3:08-CV-00517 USDC, Reno Nev. - suit against IRS for damages

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

administrative agents for violations of the Internal Revenue Code, regulations and the 1998 Reform and Restructuring Act. (i) As a matter of fact, according to ICS History Transcript, dated Friday, August 8, 2008, p. 58 the IRS record reveals an investigation involving defendant Ioane for a non-tax crime. A copy of this pertinent part of the ICS History Transcript is attached as Exhibit 1. The same record discloses this agents hostility toward defendant Ioane stating TP files frivolous lawsuits against IRS employees I need to document my case history accurately. There is nothing in the same IRS record identifying the individual or individuals within the IRS that made the entry, and nothing in the record how and where this individual sought to document anything accurately. (j) The above described civil litigations, complaints, and statements were made long before the indictment. (k) Defamatory, inflammatory and hostile language prohibited by the 1998 Reform and Restructuring act [T]hese websites contain tax protestor material. Document 42, page 5, lines 8 through 12. It would be important to discover the source of such statement like this whether it is still being used within the agency and elsewhere as part of a profile artifice and scheme. (l) Claiming that defendant viewed a speech Document 42, page 5, line 1. (m) The government unlawfully and intentionally interfering with defendants due process rights concerning the above referenced civil cases. The reason being retaliatory because he was able to prove that plaintiffs agents acted in an unconstitutional extra-executive manner displayed by their propensity to treat 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

this defendant harshly in this case. The government in this case has successfully imposed a chilling effect upon this defendants due process and other related constitutional guarantees and ability to conduct a meaningful execution of his prosecution against the United States and its agents. This is an inclusion inseparable from mere right of self-representation. (n) Mr. Cullers claims that his office is not involved in any of defendants civil litigation, Transcript, page 69, lines 11-14, August 17, 2009. This is an intentional misrepresentation where both civil and criminal proceedings are intertwined and Mr. Cullers is very well aware of this fact. The indictment is a matter of public record. The cooperating grand jury examiner/revenue officer, in cooperation with the Assistant U.S. Attorney (AUSA), should attempt to include complete civil assessment information/information required for the collection of taxes in the indictment. Internal Revenue Manual 25.1.5.3 (01-15-2010) This critical information provides the REASON WHY the government has interfered with defendants civil prosecutions that includes eventually discovering that there is NO assessment because the 1998 Reform and Restructuring Act eliminated positions previously held by district directors and service center directors that had the authority to delegate authority to assessment officers. There are no current Treasury regulations conforming to new requirements imposed by said Act. (o) The government, as well as the court, is upset with the Boston Tea Party Book, and has punished defendant profiling him as the creator and leader of the Tea Party political movement, Transcript, page 6, lines 1 through 8, 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

June 30, 2009; Transcript, page 23, lines 5 and 6, August 17, 2009. The Boston Tea Party book was published in 1998 and defendant started the genesis of the Tea Party movement in year 2000. No doubt that the result being spread far and wide has caused plaintiff and those associated with plaintiff concern and political motivation to put this defendant away or to stop him from furthering the Constitutional objective of the party. (p) Defendant Ioane has not and did not set up trusts or any other entity defendant Booth might be involved with. As a matter of fact an attorney, an officer of the court, John Reedy created Mr. Booths business structure, the documents, and was in constant contact with both the Department of Justice and the Internal Revenue Service regarding actions being taken against defendant Booth, and at no time according to this defendants knowledge has either one of these agencies responded to Mr. Reedys correspondence attached hereto as Exhibit 2. (q) By email dated December 29, 2010, Mr. Reedy requested defendant Ioane dissolve trust entities created by Mr. Reedy. As the court already knows Mr. Ioane has no responsibility regarding creation of the trust documents or any other document created by Mr. Reedy see attached Exhibit 3. (r) By responsive email dated December 30, 2010, defendant Ioane emphasized that Acacia is only to act regarding Mr. Reedys trusts as a registered agent, record keeper and manager see attached Exhibit 4. (s) By email dated January 5, 2011, Mr. Reedy was again advised that defendant Ioane had no interest in Mr. Booths trust arrangements made with Mr. Reedy 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

and pointed out any settlement agreement Mr. Booth might have with the IRS does not include and is unrelated Mariposa Holding Inc. of Nevada see attached Exhibit 5. (t) By responsible email dated January 21, 2011, Mr. Reedy requested that defendant Ioane undo some unidentified transactions regarding some unidentified transfers of properties and further unidentified controls see attached Exhibit 6. (u) By email dated January 24, 2011, defendant Ioane requested that Mr. Reedy, with details, clarify the nature of his same January 21, 2011 request see attached Exhibit 7. (v) Defendant Ioane received no further communication from Mr. Reedy. (w) Defendant Ioane infers from the above stated facts, that Mr. Booth and the assistant United States attorney threatened Mr. Reedy, and directed Mr. Reedy to entrap or entice defendant Ioane into committing crimes. Again it ought to be stressed that it was and is Mr. Reedy that is responsible for setting up and creating the documentation for Mr. Booths business structure, and that Acacia or First Amendment Publishers only acts as a registered agent, record keeper and manager for Mr. Reedys structure. (x) Defendant Ioane infers from the above stated facts, that Mr. Booth and the assistant United States attorney personally directed Mr. Reedy to intentionally mislead defendant Ioane into committing an offense as though they were sitting in Mr. Reedys office telling him what to do and what to write. (y) As a matter of fact this Court has ordered that Mr. Booth not have any contact 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

with defendant Ioane directly or indirectly. According to the attached emails, Mr. Booth is having conversations with Mr. Reedy, and Mr. Reedy is conveying to defendant Ioane unsubstantiated demands in clear violation of this Courts order. (aa) At all times to this motion and from the facts and circumstances described above; defendant has been profiled and targeted by the parties potentially subject to subpoenas in this motion to selective prosecution that has nothing in common with the indictment to obstruct this defendant exercising his constitutional guarantees and political motivations. (bb) Given the nature of Mr. Booths plea agreement and the tenor of the emails sent by Mr. Reedy on Dr. Booths behalf, it appears to defendant Ioane that Dr. Booth and his attorney, along with attorney Eric Fogderud, Dr. Booths criminal defense attorney, are attempting to set him up for a conviction. It appears that these people are trying to creating and/or manufacturing evidence in anticipation of the testimony Mr. Booth will offer at trial, to be used against defendant Ioane during trial. Even more, defendant Ioane is greatly concerned that the United States Attorneys Office may have knowledge of this, or even orchestrated a plan to ensure his conviction, or at the very least bring doubt as to his innocence. UNINDICTED OTHERS DIRECTLY INVOLVED

24 1. Real Estate Developer Bob Bell, for a long time the IRS interviewed him and apparently 25 threatened him with prosecution, prior to the herein indictment ever being allegedly returned. He 26 27 28
11

was continually informed that he was involved in money laundering, tax evasion, aiding and

2 abetting, and conspiracy with defendant Booth and the trustees named below. The IRS 3 acknowledged that he was part of various real estate deals involving the plaintiffs allegations of 4 using illegal entities,( i.e. Southern Financial Services, Bakersfield Properties, 21st Century 5 Management Trust, Aligned Enterprises, Alpha Omega Trust, Acacia Corporate Management, 6 7 8
shares an office with defendant Booth and they speak daily. Ioane has spoken with and worked LLC and Mariposa Holding Inc), for tax evasion purposes. Real Estate Developer Bob Bell

9 directly with Real Estate Developer Bob Bell and his Attorneys going back as far as 2002. Many 10 of the discussions involved the content of the IRS interviews and allegations. Plaintiff never 11 brought action against Real Estate Developer Bob Bell; but, Ioane contacted by Developer Bob 12 Bell and informed that he testified in front of the grand jury in early 2009, regarding the herein 13 14 15

stated indictment. Real Estate Developer Bob Bell is one of defendant Booths very close friends and knew of Mr. Booths dealings for a very long time, Ioane has firsthand knowledge that Real

16 Estate Developer Bob Bell actually received over 500k in cash and over 1 million in real estate 17 Deeds from Southern Financial Services, trust, (alleged to be one of those illegal entities of 18 Booth). Ioane by Developer Bob Bell that his Attorney Michael Mears and Attorney John Reedy 19 assured him, Bob Bell, that everything was done legally and correct. Ioane relied on these 20 21 22 23
the transaction. 2. Attorney Michael Mears; worked for Bob Bell and also worked with Attorney John Reedy,

statements; however, did have several conversations with Attorney John Reedy who coordinated

24 since about 2002 or sooner regarding the Treble LLC investment and real estate development, 25 which involved Southern Financial Services, Bakersfield Properties and Trust Company, and 26 Treble LLC. Ioane is informed and believes that Attorney Michael Mears, Accountant Jim 27 28
12

Baker, Attorney John Reedy, Real Estate Developer Bob Bell and defendant Steven Booth stated

2 that the deal was legal and Steven Booth was doing no wrong. Michael Mears spoke with the 3 AUSA office and IRS continually and then he assured everyone that no illegal tax crimes or 4 otherwise had or were occurring, nothing to worry about. 5 3. Attorney Steve Dakes of Dake-Braun-Monje; these folks reviewed the trusts and never 6 7 8
and contracted work for the various entities alleged by the plaintiff to be illegally formed for tax informed Ioane there was a problem. Steve Dakes knew that Ioane was a business administrator

9 evasion purposes, Attorney Steven Dake was one of the Attorneys representing the above 10 referenced trusts subject of the indictment. In fact their names, (Attorney Steve Dake and his 11 office), have come up in the discovery, as CID reports revealed. Ioane was hired by Attorney 12 Steve Dake to handle locating a tax preparer for the trusts, referenced above. Ioane contacted 13
several CPAs and Bookkeepers as instructed and proceeded to coordinate the administrative

14 15
work asked of him by Attorney Steve Dake. A Mr. Finch, CPA, was contacted by Ioane, who

16 according to CID investigative report was and is a confidential informant, for IRS. Mr. Finch 17 apparently was interviewed and gave statements regarding Attorney Steve Dake and what he 18 believed to be illicit activity on the part of the law office, (this is available in the governments 19 initial discovery to defendant Ioane). Apparently Attorney Steve Dake and his law-firm, whom 20
Ioane relied on, was hired by and paid for by defendant Steven Booth and the trust entities alleged to have been used for illegal tax evasion purposes. Attorney Steve Dake, was so confident that no illegal activity had or was taking place regarding these trusts, Booth or Ioane,

21 22 23

24 that he tendered an offer to purchase one of three pieces of real property owned by Bakersfield 25 Properties and trust company. That offer was not accepted; but later Acacia Corporate 26 Management, LLC purchased the real property from Bakersfield Properties and Trust Company, 13 27 28

for valuable consideration. The government alleged that this purchase was somehow illegal and

2 that defendant Booth was the alter ego of Acacia Corporate Management LLC., which was 3 proven to be factually incorrect; (pre-indictment), however, Acacia Corporate Management, LLC 4 has been forced to file suit against the IRS because they never the less filed a nominee lien on the 5 subject property, see case number 1:07-CV-1129 AWI 6 7 8
2005. Ioane is informed and believes that Mr. Baker has been indicted and pleads; but not 4. Accountant Jim Baker; that defendant Steven Booth employed between years 1995 through

9 regarding the Booth matter regarding the bookkeeping involving all trusts and the tax 10 preparation. Ioane was personally involved hearing statements from Mr. Baker that the taxes and 11 accounting were correct, and that he handled all this stuff. In fact Baker is the one who set up the 12 trusts that are the actual subject of the tax evasion Alpha Omega and Aligned Enterprises. 13 14 15
what numbers should be applied to what tax returns, involving all entities directly or indirectly

Account Jim Baker, handled all bookkeeping entries and then it was Jim Baker who decided

16 related to Booth. 17 5. Certified Public Accountant Clark Hurst of Bakersfield; who stated to Ioane that Mr. 18 Booth has employed his services since 2005 and is currently using the services of Mr. Hurst. 19 Ioane has heard Mr. Hurst state that nothing was wrong with how Mr. Booth operated his 20 21 22 23
from Attorney John Reedy. Ioane has firsthand knowledge that CPA Clark Hurst, prepares and handles the filing of defendant Steven Booth tax returns, worked on tax returns for Bakersfield

business using various entities and corporations and that he, Clark Hurst took his instructions

24 Properties and Trust Company, Southern Financial Services, 21 Century Trust, Aligned 25 Enterprises and Alpha Omega not excluding the medical corporations. 26 6. Attorney Michael Kia; wrote letters to the IRS setting up appointments for defendant Booth. 14 27 28

He never told Ioane that defendant Booth was committing any crimes and he would discuss

2 Booths IRS disputes in detail with Ioane. Attorney Michael Kia was directly involved in each of 3 the entities that the government claims were used for illegal tax evasion and Attorney Michael 4 Kia spoke on many occasions with IRS agent Fred Chynoweth and Michael Hoos, in an attempt 5 to resolve the IRS disputes that had been pending since at least 2002. 6 7 8
involved in each allegation alleged in the indictment. IRS received numerous letters from Attorney Michael Kia and know that he was directly

9 7. Attorney John Reedy, defendant Steven Booths general counsel and corporate attorney, 10 created and managed the Booth Corporations and trusts, wrote letters to the IRS and Inspector 11 general regarding the allegations in the current indictment several years prior to any indictment 12 being returned. Attorney John Reedy was in continual communication with Special agents at the 13
IRS office and the AUSA regarding the alleged illegally created entities and even wrote communications indicating that he created and managed those entities.

14 15 16 8. In 2006, defendant Steve Booth hired Attorney Mark Lane and Mr. Lane contacted AUSA 17 office after Steves home was raided in March of 2006. Ioane recalls that he informed the IRS 18 that the raid had no merit and that his clients rights were being violated. Ioane worked with Mr. 19 Lane and he informed Ioane that Mr. Booth didnt violate any laws. Ioane further recalls that Mr. 20 21 22 23
communication to AUSA Verna Santos and having phone calls with her. 9. Then we have all the trustees who First amendment Publishers and Acacia Corporate

Lane actively tried to resolve the problem with the IRS with Ioanes assistance, sending letters of

24 Management, LLC, ( entities that Ioane is employed by), worked for as the administrator of the 25 trusts, following their instructions and the accountants making sure that they all followed the 26 terms of the trust. Doctor Thomas Rios, (who plead guilty to tax evasion, unrelated to Booth 27 28
15

entities and got probation), he was a trustee, Margaret Squires, trustee, Doctor John James Inis,

2 Jr.,trustee, Jean Annette Liascos,trustee Doctor Loren McCan, trustee All of these individuals 3 were the trustees and knew they were trustees and that they hired the administrator. Ioane was 4 informed by them and believes that each and every one of them was threatened by IRS with 5 prosecution if they did not say exactly what the IRS wanted them to say. Ioane is further 6 7 8
although these were the parties signing and authorizing all activity involving the Aligned informed and believes that each was interviewed several times, but never were they indicted;

9 Enterprises trust and Alpha Omega trust, in addition to the other trusts. 10 9. Attorney Eric Fogderude, is more than directly involved since he worked with defendant 11 Steven Booth regarding a civil contempt matter, (specifically related to each and every allegation 12 of the indictment, in 2005. The matter was held before the Honorable Judge Wagner, at the US 13 14 15
forward worked with and discussed legal defenses and strategies involving Booth, Alpha Omega

district Court California, case number 05-cv-290-OWW-DLB. Defendant Ioane from this point

16 trust and Aligned Trust. Eric Fogderude was in continual contact with IRS attempting to resolve 17 the issue that Booth had regarding the IRS. The exact same allegations that were being made or 18 inferred during the contempt proceeding is now part of the indictment. Mr. Ioane continually 19 consulted with Mr. Fogderude as administrator/consultant for both defendants Booth and his 20
Attorney Mr. Fogedurude, everything that occurred from 2005 on was either approved or acknowledged by Eric Fogderude, this is why he became the public defender. At all times to this motion, it ought to be noted and stressed that defendant Ioane

21 22 23

24 communicated with each and every one of the above mentioned un-indicted individuals, and that 25 this defendants claim has nothing in common with class or similarly situated or similar 26 circumstance irrelevant to and beyond or above those that are directly involved with the 27 28
16

indictment and/or the allegations raised in the indictment and government theory of the case. The

2 governments theory simply would not exist if it had not been for the above actors. But none of 3 them have been indicted for those alleged criminal acts. The question then is why was Ioane 4 invidiously selected from the pool of actors, especially those actors who were licensed Attorneys 5 and accountants, whom Ioane relied on. 6 7 8 9 10 IS MORE THAN PERSONS IN SIMILAR CIRCUMSTANCES 11 12
"The equal protection doctrine requires that persons in similar circumstances must

POINTS AND AUTHORITIES UNINDICTED OTHERS DIRECTLY INVOLVED THAT

13 receive similar treatment under the law." 14 15 16 17

In other words the equal protection doctrine is blind to professional titles and the un-

indicted others are persons are more than just similar situated or there are more than just similar circumstances since they were directly involved requiring that they must receive similar

18 treatment under the law, United States v. Armstrong, 517 U.S. 456, 116 S. Ct. 1480, 134 L. Ed. 19 2d 687 [1996], quoting YICK WO V. HOPKINS, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 [1886]). 20 Specifically, police and prosecutors may not base the decision to arrest a person for, or charge a 21 person with, a criminal offense based on "an unjustifiable standard such as race, religion, or 22 23 24 25 27 28
82 S. Ct. 501, 7 L. Ed. 2d 446 [1962]). Selective prosecution is a violation of the constitutional guarantee of equal protection for other arbitrary classification" (United States v. Armstrong, quoting Oyler v. Boles, 368 U.S. 448,

26 all persons under the law. On the federal level, the requirement of equal protection is contained
17

in the DUE PROCESS CLAUSE of the Fifth Amendment to the U.S. Constitution. The Equal

2 Protection Clause of the Fourteenth Amendment extends the prohibition on selective prosecution 3 to the states. The equal protection doctrine requires that persons in similar circumstances must 4 receive similar treatment under the law. 5 All of these above-named individuals were directly involved and similarly situated in one 6 7 8
defendants Ioane and Booth. In other words, the above named individuals all have their hands way or another regarding the very same transactions plaintiff complains about regarding only

9 on the same allegations, but there is no equal treatment under the law. As a matter of fact 10 prosecutorial discretion in this case is irrelevant since it involves other named individuals that 11 were or are directly involved with the indictment. Further the prosecution is either estopped or 12 prohibited from violating the equal protection doctrine having failed to indict others that were 13 14 15 17
equal protection doctrine within the exercise of prosecutorial discretion is grounds for dismissal

directly involved that is much more than persons in similar circumstances. Refusal to apply the

16 with prejudice of the indictment.


Otherwise, since the plaintiff has decided not to pursue these individuals, then defendant

18 Ioane demands that the indictment be dismissed with prejudice so that he can be treated equally 19 under the law to those named above that are more than similarly situated. 20 21 22 23
well that the same above-named individuals were involved either obtained through search warrants or individual interviews prior to the indictment having been returned. It should be noted

As a matter of fact, the prosecution already has information in its possession knowing full

24 that Ioane and Booth are the only parties from the list of above actors, that brought and as of 25 today maintained civil actions against the United States for constitutional violations they have 26 suffered from the IRS over these matters, not excluding the very illegally executed search 27 28
18

warrants and Michael Ioane is the co-author and publisher of the Boston Tea Party Book and one

2 of the founders of the Tea Party movement; (otherwise there is no other distinction between them 3 from the other actors). 4 5 6 7
protected by the law, and First, Fourth, and Fifth Amendments. Regardless of whether or not Further, defendant Ioane believes he has been selected for prosecution motivated by the Accuseds profile because he has exercised certain expressions and prosecuted actions

8 these allegations are true, they form an invidious discriminatory animus creating a personal 9 animosity toward this defendant. *fn5 In this case defendant Ioane sought to secure 10 constitutional guarantees, and protections afforded to him by law. 11 12 13 14 16
Although the individuals named above are connected or related to this case as un-indicted co-conspirators; defendant Ioane also believes he has been selected for prosecution motivated by the Accuseds profession just because he is not an attorney, CPA, tax preparer, or someone

15 similarly situated that has no application to the color-blindness of the law.


Defendant Ioane believes that the records above requested will provide the necessary

17 documentation to establish that the Accused has been selected for prosecution when thousands 18 similarly situated were not. The above noted subpoenas are immediately needful, *fn6 and 19 20 21 22
the issue of selective prosecution for appeal. In this case, defendant Ioane has demonstrated that the United States retaliated with an

necessary to the hearing of a pre-trial motion to dismiss for selective prosecution and to preserve

23 indictment and selected this defendant for prosecution because of his civil and administrative 24 litigations, complaints, letters, and political activities that are protected matters involving speech, 25 being secure in his house, papers and effects, and due process. 26 27 28

"it is . . . well settled that where legal rights have been invaded, and a federal statute (law 19

or rule) provides for a general right to sue (or file motions) for such invasion, federal courts may

2 use any available remedy to make good the wrong done." Bell v. Hood (1946) 327 U.S. 678 at 3 684 (emphasis included) 4 5 6 7 8 9 11 12 13 15 16 17 18 19 20 21 22 Government was motivated by discriminatory purpose with resulting discriminatory effect, 23 prosecuted, but also that decision to prosecute was based on impermissible considerations. U.S. 24 v. Richardson, 856, F.2d 644. 25 C.A.6 (Ohio) 1986. Defendant asserting selective prosecution bears heavy burden of 26 proceeded against because of conduct of type forming basis of charge against him, defendant has 20 27 28
establishing, at least prima facie, that while others similarly situated have not generally been establishing not only that he has been singled out while others similarly situated have not been *fn5 C.A.4 (N.C.) 1988: To establish selective prosecution, defendant must show that (1985). *fn2 Although the fifth amendment, unlike the fourteenth, does not contain an equal protection clause, it does contain an equal protection component. Bolling v. Sharpe, 347 U.S. 497, 499, 98 L. Ed. 884, 74 S. Ct. 693 (1954). *fn3 Gifford, Equal Protection and the Prosecutor's Charging Decision: Enforcing an Ideal, 49 Geo. Wash. L. Rev. 659, 662 (1981). *fn4 United States v. Peskin, 527 F.2d 71 (7th Cir. 1975), cert. denied, 429 U.S. 818, 50 L. Ed. 2d 79, 97 S. Ct. 63 (1976); United States v. Picciurro, 408 F. Supp. 1055 (E.D. Wis. 1976). CONCLUSION For the foregoing reasons, Defendant Michael S. Ioane respectfully requests that the Court

10 issue subpoenas or dismiss the indictment with prejudice.


Dated: Respectfully submitted, /s/ Anthony P. Capozzi, Attoreny for Defendant

14 *fn1 See generally Wayte v. United States, 470 U.S. 598, 84 L. Ed. 2d 547, 105 S. Ct. 1524

1 has been invidious or in bad faith, that is, based upon such impermissible considerations as race, 2 religion, or desire to prevent exercise of his constitutional rights. U.S. v. Bustamante, 805 F.2d
201.

been singled out for prosecution, and that Governments discriminatory selection of defendant

3 4 prosecutors decision to indict by making prima facie demonstration of intentional and to show purposeful discrimination, defendant must 5 purposeful discrimination; similarlyintentional andnot generally been proceeded against because establish that while others situated have 6 of conduct of type forming basis of charge against him, he has been singled out for prosecution
and that governments discriminatory selection of him for prosecution has been invidious or in prevent his exercise of constitutional rights. U.S. v. Goldberg, 906 F.Supp.58. D.Mass. 1995. Defendant may overcome threshold presumption in favor of regularity of

7 bad faith, that is, based upon such impermissible considerations as race, religion, or desire to 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 9 N.D.Ind. 1991. Although prosecutorial discretion is broad, it is not unfettered; selectivity in

enforcement of criminal laws is subject to constitutional restraints; in particular, decision to prosecute may not be deliberately based upon unjustifiable standards such as race, religion, or other arbitrary classification, including exercise of constitutional rights. Claim of selective prosecution attacks not merits of prosecutors case against defendant, but Prosecutors choice to proceed against defendant while declining to bring similar criminal charges against others who appear equally culpable. Selective prosecution claims should be judged according to ordinary equal protection standards which prohibit state from taking action which would deny to any person within its jurisdiction equal protection of laws, as equal protection guarantee applies both to enactment of laws by legislative branch and conduct of executive branch in enforcement of laws. U.S.C.A. Const.Amends. 5, 14 There are three impermissible bases for prosecutorial selectivity, that is, three factors that may not motivate prosecutor to proceed against particular defendant: race, religion or other suspect classification, desire to impeded exercise of constitutional, usually First Amendment, rights, and personal animosity towards defendant; to satisfy burden of proving that discriminatory prosecution was intentional or purposeful, defendant must prove that one of these factors was instrumental in prosecutors decision to proceed against him. When selective prosecution defense is interposed, defendant must show intentional or purposeful discrimination in sense that it is not enough that particular enforcement policy has effect of singling out those who happen to be in impermissible class; there must have been intent to single out that class. Defendant may not first raise issue of selective prosecution at outset of trial; failure to bring pretrial motion alleging selective prosecution results in waiver. Fed.Rules Cr.Proc.Rule 12, 18 U.S.C.A. U.S. v. Cyprian, 756 F.Supp. 388.

24 *fn6 C.A.8 (Mo.1998): In order to make out prima facie case of selective prosecution, 25 situated were not prosecuted for similar conduct, and (2) that decision to prosecute was based on 26 impermissible motive, such as race, religion, or attempt by defendant to secure other
constitutional rights. U.S. v. Kelly, 152 F.3d 881. defendants must show (1) that they were singled out for prosecution while others similarly

27 28

21

Das könnte Ihnen auch gefallen