Appellate Case: 15-4103

Document: 01019490593

Date Filed: 09/14/2015

Page: 1
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UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
VERNON D. FRAUGHTON and OFFICE OF,
FIRST PRESIDING OVERSEER FOR THE
POPULAR ASSEMBLY OF SHARED
ENLIGHTMENT MINISTRY, VERNON
D. FRAUGHTON, FIRST PRESIDING
OVERSEER,

FILED

United States Court of Appeals

Tenth Circuit

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

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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 pretrial defense ofFed.R.Civ.P., Rule 12(b)(6): "failure to state a claim
upon which relief can be granted." Appellant(s) pretrial right of Affirmative 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 16l(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, except ... 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 of Decision Act, 28 U.S.C. 1652, requires that
the laws of the states of the 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 of Procedure, 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 of Appellee'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 of 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

limited 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 of Utah, U.S. Attorney General and
all, District of Utah, Assistant U.S. Attorney Generals. Because the Complaint
invalidates the case.
Parallel Table of Authorities 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 manufacturers 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." It 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.

m"

b. A
is 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, In 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 of 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. Second Issue:
This civil action is fatal for want of an authorization for suit.
Argument and Authorities:
The government:
1) use of26 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 of valid
"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 jurisdiction 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 jurisdiction 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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of the State, the Federal Goverrunent possesses no legislative jurisdiction over

any area within a State, such jurisdiction being for exercise by the State,
subject to non- interference by the State with Federal functions," Id., at 45.
"The Federal Goverrunent cannot, by unilateral action on its part, acquire
legislative jurisdiction over any area within the exterior boundaries of a
State," Id., at 46.

4. Do you think the district court applied the wrong law? If so, what law do you
want applied?
See above concerning Appellee's wrong application of law and what law is applicable
for which the Court fails to adhere to.

5. Did the district court incorrectly decide the facts? If so, what facts?
See above concerning Appellee's wrong application of law and what law is applicable
for which the Court fails to adhere to.

6. Did the district court fail to consider important grounds for reliefl If so, what
grounds?
See 26 U.S.C. 7403(c) wherein the district court (that includes magistrate judges)
would be better familiar with what constitutes a viable Complaint for relief.

7. Do you feel that there are any other reasons why the district court's judgment
was wrong? If so, what?
Never can there be adjudication that is based on a defective Complaint. The judge
can never be impartial.

8. What action do you want this court to take in your case?

Uphold the law as clearly promulgated. Rule 12(h)(3).

9. Do you think the court should hear oral argument in this case? If so, why?
No.

Vemon-DeLyle
Defendant(s)
Vemon-DeLyle :Fraughton, Executor, Secured Party* and
Agent of the Cestui Que Trust and Estate of ens legis
VERNON D. FRAUGHTON [Appellant(s)]
990 North 100 East
American Fork, Utah 84003
(801) 756-4842 *UCC-1 File No. 449060201434

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CERTIFICATE 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
JOHN K. 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

CERTIFICATE OF COMPLIANCE

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, 2015
Signature

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Vernon-DeLyle ,,
Appellant(s)