United States v. Gutierrez
| Decision Date | 05 May 2018 |
| Docket Number | No. CR 15-3955 JB,CR 15-3955 JB |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. DARRYL J. GUTIERREZ, Defendant. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER comes before the Court on: (i) the Defendant's Pro Se Notice of Challenge to Jurisdiction, filed May 31, 2016 (Doc. 21)("Motion"); (ii) the Defendant's Notice of Default, filed July 27, 2016 (Doc. 25)("Default Notice"); (iii) the Defendant's Notice of Challenge to the Court's Conduct and Memorandum of Law, filed August 9, 2016 (Doc. 26)("Challenge Motion"); and (iv) the United State[s'] Motion to Strike or to Deny Whatever Relief is Requested in Docket Entries 26 and 27, filed August 12, 2016 (Doc. 28)("United States' Motion"). The Court held a hearing on August 19, 2016. The primary issues are: (i) whether the Court has jurisdiction to try Defendant Darryl Gutierrez for corruptly endeavoring to obstruct the administration of the internal revenue laws and for lying on his 2000-2009 tax returns; (ii) whether Gutierrez is a "taxpayer"; (iii) whether the Court is disqualified from the case for being a partial decision maker; (iv) whether the Court must dismiss the case, because the Court did not respond to the Motion within thirty days; and (v) whether the Court should strike the Default Notice and Challenge Motion, because counsel represents Gutierrez, because those filings are untimely, and because they lack merit. The Court concludes that the arguments which Gutierrez asserts bear the hallmarks of traditional, meritless tax-protestor arguments. "The federal courts are hostile to such arguments -- frankly, not just to accepting them, but to even hearing them." United States v. Rivera, 2015 WL 4042197, at *19 (D.N.M. June 30, 2015)(Browning, J.). Accordingly, the Court denies the Motion, the requests in the Default Notice, and the requests in the Challenge Motion. The Court also grants in part and denies in part the United States' Motion. It concludes that striking Gutierrez' filings is not warranted, as the Court stated it would not shut the courthouse door on Gutierrez. The Court, however, grants the United States' Motion to the extent that it requests that the Court deny Gutierrez' requested relief.
The Court takes its facts from the Indictment, filed November 5, 2015 (Doc. 2)("Indictment"). The Court does not set forth these facts as findings or the truth. The Court recognizes that the Indictment is largely the United States' version of events and that Gutierrez is presumed innocent.
From 2000 through 2009, Gutierrez filed federal income tax returns falsely claiming tax refunds in the amount of $173,526.00. See Indictment ¶ 1, at 1. Gutierrez, however, was not entitled to that amount in refund; instead, he owed $125,624.00 in federal taxes. See Indictment ¶ 1, at 1. Gutierrez also falsified his W-4 forms for many years claiming exemption from federal income tax withholding. See Indictment ¶¶ 11-15, at 2-3. In addition, he lied on his 2000-09 1040 forms by claiming that he had no wage income even though he earned wages and knew of those wages. See Indictment at 5-9. From 2011 through 2013, Gutierrez sent various notices to the Internal Revenue Service stating that he is not liable for income tax under 26 U.S.C. Subtitle A or for the penalties assessed against him, because he is not a "taxpayer." Indictment ¶¶ 19-25, at 4-5.
On November 5, 2015, the Grand Jury returned an eleven-count indictment against Gutierrez. See Indictment at 1-9. On December 2, 2015, Gutierrez was arrested and arraigned before the Honorable Steven C. Yarbrough, United States Magistrate Judge for the United States District Court for the District of New Mexico. See Clerk's Minutes before Magistrate Judge Steven C. Yarbrough at 1, filed December 2, 2015 (Doc. 5). On February 8, 2016, the Court held a status conference in which Gutierrez mentioned the possibility that he might raise motions that his counsel would not join, and the Court stated that it would not close the courthouse door on Gutierrez. See Clerk's Minutes Before District Judge James O. Browning, at 1-2, filed February 8, 2016 (Doc. 17); Motion ¶ 4, at 2.
The Motion raises a variety of arguments of which the general theme is that the Court has no power over Mr. Gutierrez. See Notice of Challenge to Jurisdiction at 2, filed May 31, 2016 (Doc. 21-1)("Motion Mem.").1 For example, he asserts: . Motion Mem.at 2 (emphasis in original). See id. at 3. He also contends that the Court has no jurisdiction "within [the] New Mexico Republic, particularly within Santa Fe County borders." Motion Mem. at 2 (emphasis in original).
Flowing from the general theme, he also asserts that the Court has no power over him, because he is a sovereign citizen not subject to the Court's jurisdiction. See Motion Mem. at 3. According to Gutierrez, in the Treaty of Paris of 1783, "King George III . . . recognized for posterity this victorious body of American People, of which Gutierrez' ancestor was a member, were, and are sovereigns equal with the King himself." Motion Mem. at 3 (emphasis in original).2 It follows, so Gutierrez' assertion goes, that he, as a descendant of one of those Americans, is his own sovereign, so cannot be a "taxpayer" who owes taxes to the United States. Motion Mem. at 3. He also contends that, because he is a sovereign that did not consent to being taxed, the indictment is invalid. See Motion Mem. at 6-7. Continuing the theme, he asserts that, pursuant to Penhallow v. Doane's Administration, 3 U.S. 54 (1795), the Court cannot "interface with" him, as he is not "an artificial person," so the United States cannot indict him. Motion Mem. at 5 ().3
Separate from the purported jurisdictional issues, Gutierrez also argues that the Court cannot lawfully serve as a judge, because the Court has a pecuniary interest in the case. See Motion Mem. at 7 (citing 18 U.S.C. § 208; 28 U.S.C. §§ 144, 455). He also contends that, because the tax laws at issue have no implementing regulation published in the Federal Register, he cannot be indicted for violating those laws. See Motion Mem. at 4.
While Gutierrez had an attorney for every stage of the proceeding, Gutierrez filed the Motion without counsel joining it. See Motion ¶ 5, at 2. Gutierrez subsequently filed a Notice of Correction to Court Filed Defendant's Pro Se Challenge to Jurisdiction at 1, filed June 27, 2016 (Doc. 22)("Correction Notice"), in which he notifies the Court that, contrary to the Motion's labeling that his motion was filed pro se, he "is NOT pro se." Correction Notice at 4 (emphasis in original). In the Correction Notice, John Butcher, Gutierrez' appointed Assistant Federal Public Defender, noted that he had used the term "pro se," because pro se seemed the most accurate of the available CM/ECF labels, as Mr. Butcher needed to show that he was not joining the Motion. Correction Notice at 2.
The United States responds that the Motion is a frivolous tax protestor motion, so the Court should dismiss it out of hand. See United State[s'] Response to Defendant's Pro Se Notice of Challenge to Jurisdiction at 1-2, filed July 14, 2016 (Doc. 23)("Response"). In support of that contention, it notes that the Motion Mem. and its exhibits "appear to have been obtained from a tax protestor website called Sovereignty Education and Defense Ministry." Response at 1 n.1. Although the United States argues that it need not respond to Gutierrez' arguments to prevail, it contends that those arguments fail on their own terms and also under D.N.M. L.R.-47.7. See Response at 2.
First, the United States argues that the Court has jurisdiction. See Response at 3. According to the United States, Gutierrez ignores both 18 U.S.C. § 3231, which vests the federal district courts with jurisdiction over all offenses against the United States, and the Constitution of the United States of America, which empowers Congress to define and punish crimes "irrespective of where they are committed," and to "create and provide for the administration of an income tax." Response at 4 (citing United States v. Collins, 920 F.2d 619, 629 (10th Cir. 1990)). The United States concludes that, because Congress imposed criminal sanctions for Gutierrez' purported conduct under 26 U.S.C. § 7201, and because Congress lawfully did so pursuant to its constitutional powers, the Court has jurisdiction over the case pursuant to 18 U.S.C. § 3231. See Response at 4 (citing Lonsdale v. United States, 919 F.2d 1440, 1448 (10th Cir. 1990)).
Second, the United States argues that the Court has jurisdiction, notwithstanding Gutierrez' arguments that he is not subject to federal taxation as a sovereign or as a New Mexico citizen. See Response at 4-5. The United States does not grapple with this argument substantively, but asserts that it fails, because it is one of the twelve tax protestor arguments that the United States Court of Appeals for the Tenth Circuit dismisses out of hand. See Response at 5 (citing Lonsdale v. United States, 919 F.2d at 1448).
Third, the United States argues that Gutierrez did not need to consent to or contract with the United States for the United States to tax him. See Response at 6. It contends that consent is unnecessary, because several laws on the books require individuals to file tax returns or be subject to criminal penalties. See Response ...
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