Citizen of Heaven indicted

[Demosthenes]

Updated September 04. 2008 11:01PM
Odd: Marion man claims IRS has no jurisdiction over him
By Alicia Ebaugh
The Gazette

CEDAR RAPIDS - A Marion man has been accused of sending in a fraudulent tax return claiming a refund of all federal taxes he's ever paid because the United States is a "fictional entity" and he is not subject to governmental jurisdiction.

Richard L. Mellor, 53, of 2175 Stratford Dr., was charged with false or fraudulent claims in an indictment unsealed Thursday in U.S. District Court.

In August 2003, Mellor sent the return to the Internal Revenue Service claiming a refund of $240,009, court records show. Mellor claimed the taxes were paid in error, in part, because the United States is a fictional entity and he is not subject to the jurisdiction of the IRS.

Mellor also claimed he is not a U.S. citizen — he is a "citizen of Heaven."

If convicted, he faces a possible maximum sentence of five years in prison, a $250,000 fine, a $100 special assessment, and three years of supervised release following any imprisonment.

Mellor appeared Thursday in federal court in Cedar Rapids and was released on bond. His trial is set for Nov. 3.

A case Mellor brought against IRS agent Arnold Stevenson in March 2005 after an investigation into this tax return claimed Stevenson was an "agent of a foreign principal," and that he would be guilty of theft if he seized Mellor's money or property "according to international law."

The case was dismissed two months later.

[Judge Roy Bean]

....in August 2003, Mellor sent the return to the Internal Revenue Service claiming a refund of $240,009, court records show....
Mellor appeared Thursday in federal court in Cedar Rapids and was released on bond. His trial is set for Nov. 3.

Let's see, August 2003 to November 2008.

No wonder these people keep trying this crap. They can claim victory for years and years.

[Demosthenes]

United States Attorney Matt M. Dummermuth
Northern District of Iowa
_______________________________________________________________________________
FOR IMMEDIATE RELEASE Contact: AUSA Peter E. Deegan, Jr
THURSDAY, MARCH 5, 2009 AUSA Janet L. Petersen
http://WWW.USDOJ.GOV (319) 363-6333
MARION, IOWA, BUSINESSMAN CONVICTED OF
EVADING FEDERAL TAXES AND OBSTRUCTING IRS
CEDAR RAPIDS, IOWA – A Marion, Iowa, businessman who failed to file timely tax returns or pay taxes from 2002 through 2005, moved money and real estate to various trust entities and accounts, and tried to interfere with the functions of the Internal Revenue Service (IRS) by filing false and frivolous claims, lawsuits and liens, was convicted by a jury on March 4, 2009, after a three-day trial in federal court in Cedar Rapids, United States Attorney Matt M. Dummermuth announced today.
Richard Lee Mellor, age 54, from Marion, Iowa, was convicted of four counts of tax evasion, one count of making a false claim for a tax refund of more than $240,000, and one count of corruptly trying to obstruct or impede administration of federal tax laws. The obstruction of tax laws conviction involved evidence that Mellor filed a frivolous and fictitious lawsuit against an IRS revenue officer for more than $84,000,000, sent and filed threatening letters to bankers concerning implications if they cooperated with IRS collection efforts, and filed an $84,000,000-plus lien against the same revenue officer. The guilty verdicts were returned following about four hours of jury deliberations.
The evidence at trial showed that Mellor attempted to conceal his income from the IRS through abusive trust schemes using, in part, tax-avoidance methods such as those promoted by Dr. Joe Sweet and the Joy Foundation, Milton H. Baxley II, and other individuals. The evidence showed that Mellor deposited the receipts of his business into bank accounts in varying names, mainly trusts and LLC entities, from year to year. By 2005, Mellor was moving funds around the country using accounts that did not bear his name, but were in the names of companies or accounts other people opened for him. For example, in 2005 he transferred more than $289,000 to a warehouse banking company in Maryland, then transferred $180,000 to a company in Colorado, moved $248,000 from Colorado to a money order company in Arkansas, and then transferred $226,500 back to his accomplice in Colorado, who sent blank, pre-signed checks back to Mellor in Iowa. Mellor used accounts in the names of invalid trusts to hold business deposits and he transferred real estate to the trusts.
Sentencing before United States District Court Chief Judge Linda R. Reade will be set after a presentence report is prepared. Mellor remains free on bond pending sentencing. On the four tax evasion charges, Mellor faces a possible maximum sentence of 5 years imprisonment and a $250,000 fine on each, plus the cost of prosecution. On the obstruction of the IRS charge, Mellor faces a possible maximum sentence of 3 years imprisonment and a $250,000 fine. On the false claim charge, he faces up to 5 years imprisonment and a $250,000 fine.
A person convicted of a criminal tax offense, in addition to whatever sentence is imposed, is also required to pay the tax determined to be due, as well as interest and civil penalties that may be assessed.
The case was prosecuted at trial by Assistant United States Attorney Janet Petersen and was investigated by agents of the Criminal Investigations Division of the Internal Revenue Service.

[Judge Roy Bean]

....and then transferred $226,500 back to his accomplice in Colorado, who sent blank, pre-signed checks back to Mellor in Iowa.....

Any info on the accomplice in Colorado?

[Demosthenes]

Full article:

http://www.kcrg.com/news/local/57658422.html

Marion Man Gets 10 Years on Tax Charges
The Gazette
By Aaron Hepker

Story Created: Sep 7, 2009 at 4:52 PM CDT

CEDAR RAPIDS — Richard L. Mellor, 54, of Marion, will serve 10 years in federal prison on tax charges.

[snip]

The government during the trial presented evidence that Mellor attempted to conceal his income by using anti-tax, phony trust schemes. He also was accused of filing a frivolous and fictitious lawsuit against an Internal Revenue Service officer for more than $84 million, sent and filed threatening letters to bankers and filed an $84 million lien against the same revenue officer.

[snip]

The sentencing was originally scheduled for Aug. 10 but Mellor failed to appear and was arrested later that day.

[snip]

[Joey Smith]

I've decided that I am going to start selling Constitutional Equity Patriot Pure Trusts to revenue officers so as to immunize them against bogus liens. I can just see it now:

Tax Protestor: "If you keep chasing me, I'm going to slap a lien for $300 million on all your assets!"

Revenue Officer: "No you can't, I've got a Pure Trust, and under the Contract Clause of the U.S. Constitution you can't touch my assets."

[Judge Roy Bean]

I've decided that I am going to start selling Constitutional Equity Patriot Pure Trusts to revenue officers so as to immunize them against bogus liens. I can just see it now:

Tax Protestor: "If you keep chasing me, I'm going to slap a lien for $300 million on all your assets!"

Revenue Officer: "No you can't, I've got a Pure Trust, and under the Contract Clause of the U.S. Constitution you can't touch my assets."

This is the greatest Internet opportunity of the decade!!!!! Let me know how long it will take to put together the requisite documents and I'll have a marketing plan drafted in a matter of hours. It's the ultimate offensive defense. Who knows what it's really worth?

[Nikki]

You can't be serious

You're talking about an IRS revenue agent using something in the furtherance of his work, so any purchase related to that will have to go through official government channels.

Welcome to the wonderful fantasyland of government procurement and contracting.

I'll check back with you in about two years when your involvement in the contract award protest process begins

[LPC]

Conviction affirmed.

United States v. Richard Lee Mellor, No. 09-3256 (8th Cir. 4/27/2010)

UNITED STATES OF AMERICA,
Appellee,
v.
RICHARD LEE MELLOR,
Appellant.

[UNPUBLISHED]

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

Appeal from the United States
District Court for the
Northern District of Iowa.

Submitted: April 22, 2010
Filed: April 27, 2010

Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.

PER CURIAM.

Richard Mellor appeals pro se the district court's1 judgment, entered after a jury found him guilty of knowingly presenting to the Internal Revenue Service (IRS) a false claim by filing a return for the 2002 tax year claiming a refund of $240,008.79, in violation of 18 U.S.C. § 287 (Count 1); willfully attempting to evade income tax due by failing to file income tax returns and attempting to conceal his income for 2002, 2003, 2004, and 2005, in violation of 26 U.S.C. § 7201 (Counts 2-5); and attempting to obstruct the administration of internal revenue laws, in violation of 26 .S.C. § 7212(a) (Count 6). For the reasons that follow, we affirm.

We reject Mellor's argument that the willful-blindness jury instruction constructively amended Count 1 as it was charged in the indictment. See United States v. Gill, 513 F.3d 836, 849 (8th Cir. 2008) (jury instructions constructively amend indictment if they so modify essential elements of charged offense that they allow jury to convict defendant of offense other than one charged in indictment). The jury instructions listed the elements of the false-claim offense, including that Mellor must have known the claim was false, fictitious, or fraudulent; and the willful-blindness instruction merely provided a means of inferring that knowledge. See United States v. Aleman, 548 F.3d 1158, 1166 (8th Cir. 2008) (willful-blindness instruction is proper if evidence supports inference that defendant was aware of high probability of existence of fact in question and purposely contrived to avoid learning facts in order to have defense), cert. denied, 129 S. Ct. 2756 (2009).

We further hold that the district court did not err in denying Mellor's motion to dismiss the indictment based on a change in the date he was alleged to have committed the Count 1 offense, because we conclude that the modified date did not constitute a constructive amendment of the indictment. The original and modified dates -- for each of which a range was given -- were within two weeks of each other, and both clearly referred to the same offense. See United States v. Harris, 344 F.3d 803, 804-05 (8th Cir. 2003) (per curiam) (reversible constructive amendment occurs if evidence used modified essential elements of offense; no error in district court's finding of guilt on or about date other than date charged in indictment, as date was "reasonably near" date alleged).

Finally, this court has previously rejected the contention that the IRS must issue a tax assessment in order to meet its burden under section 7201 of proving the existence of a tax deficiency. See United States v. Gustafson, 528 F.3d 587, 593 (8th Cir. 2008).

Accordingly, the judgment is affirmed.

FOOTNOTE

1 The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa.

END OF FOOTNOTE

[The Observer]

And our Citizen of Heaven has reached the end of his pilgrim's progress. Tax Notes Today is reporting that Mellor's appeal to the Supreme Court resulted in certiorari being denied.

[sarcasm]I am sure that many of us are shocked - shocked, I tell ya - to hear of this unexpected result[/sarcasm]

[Brandybuck]

These sov'runs and their protestations continue to baffle me. So what if you're a citizen of Heaven? You're still *within* the jurisdiction of the arresting officer. Foreign citizens get arrested all the time. Unless you have a diplomatic White Card issued by the U.S. government, you have no immunity while you are within our borders. (Or outside the borders either, due to the Bush/Obama policy on renditions).

[Omne]

I had a protester send a me a letter where he claimed diplomatic immunity as an Ambassador of God. I told him that if he could show me certified credentials we could talk about it....

[grixit]

Just tell him to have God send confirmation. Flaming letters in the sky would be sufficient.

[webhick]

Being a Citizen of Heaven takes "resident alien" status to a whole new level.

[wserra]

I had a protester send a me a letter where he claimed diplomatic immunity as an Ambassador of God. I told him that if he could show me certified credentials we could talk about it....

That would make him an apostilled apostle.

[The Observer]

And now he has filed his writ of mandumbass...

IN RE: RICHARD LEE MELLOR,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

Release Date: NOVEMBER 12, 2010

Published by Tax Analysts(R)

IN THE SUPREME COURT OF THE UNITED STATES

On Petition For Writ Of Mandamus
To The United States Court Of Appeals
For The Eighth Circuit

PETITION FOR WRIT OF MANDAMUS

Richard Lee Mellor
2175 Stratford Drive
Marion, Iowa 52302
Pro Se

QUESTIONS PRESENTED FOR REVIEW

Can a Citizen of the United States of America be indicted without a Summary Record of Assessment presented to the Grand Jury to show proof of an assessment when a tax return was filed? How can an Appellate Court Panel rule against the Petitioner when two (2) Appellate Courts have ruled in favor of the Petitioner?

PARTIES TO THE PROCEEDING

The Parties to the proceeding are:

RICHARD LEE MELLOR, an individual, on behalf of himself;
THE UNITED STATES OF AMERICA

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

PARTIES TO THE PROCEEDING

TABLE OF CONTENTS

TABLE OF AUTHORITIES

CITATIONS OF REPORTS OF OPINIONS ENTERED IN THE CASE

JURISDICTION

CONSTITUTIONAL PROVISION INVOLVED IN THE CASE

STATEMENT OF THE FACTS

STATEMENT OF THE ISSUES

STATEMENT OF RELIEF SOUGHT BY PETITIONER

REASONS WHY THE WRIT SHOULD ISSUE

CONCLUSION

APPENDIX

Per Curiam Opinion of the United States Court of Appeals for the
Eighth Circuit In Re: U.S. v. Mellor No. (09-3256)

Judgment of the United States Court of Appeals for the Eight
Circuit affirming the District Court of Iowa -- Cedar Rapids In
Re: to U.S. v. Mellor No. (1:08-cr-00049-LLR-1)

Order of the United States Court of Appeals for the Eighth
Circuit denying Petitioner's rehearing en banc In Re: U.S. v.
Mellor No. (09-3256)

TABLE OF AUTHORITIES

CASES

Banks v. United States, 204 F.2d 666, reaffirmed 223 F.2d 884
(8th Cir. 1953)

Clark v. U.S., 63 F.3d 83 (1st Cir. 1995)

Geiselman v. U.S., 961 F.2d 1 (1st Cir. 1992)

Gentry v. U.S., 962 F.2d 555 (6th Cir. 1992)

Government of Virgin Islands v. Greenidge, 600 F.2d 437 (3rd
Cir. 1979)

Hinsley v. Boudloche, 201 F.3d 638 (5th Cir. 2000)

Honea v. United States, 344 F.2d 798 (5th Cir. 1965)

Howell v. U.S., 164 F.3d 523 (10th Cir. 1998)

Huff v. U.S., 10 F.3d 1440 (9th Cir. 1993)

In re: First T.D. & Investment, Inc., Neilson v. Chang,
253 F.3d 520 (9th Cir. 2001)

In re Galletti, 298 F.3d 1107 (9th Cir. 2002)

Johnson v. U.S., 123 F.3d 700 (2nd Cir. 1997)

Johnson v. U.S., 990 F.2d 41 (2nd Cir. 1993)

King v. Ames, 179 F.3d 370 (5th Cir. 1999)

Knieriem v. Group Health Plan, Inc., 434 F.3d 1058 (8th
Cir. 2006)

Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996)

Lowery v. Texas A & M Univ. Sys., 117 F.3d 242 (5th Cir. 1997)

McAuley v. Federal Ins. Co., 500 F.3d 784 (8th Cir. 2007)

Merritt-Campbell, Inc. v. RxP Prods., Inc., 164 F.3d 957
(5th Cir. 1999)

O'Bryant v. U.S., 49 F.3d 340 (7th Cir. 1995)

Perez v. U.S., 312 F.3d 191 (5th Cir. 2002)

Riley v. Dorton, 93 F.3d 113 (4th Cir. 1996)

Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13
L.Ed.2d 882 (1965)

Stallard v. U.S., 12 F.3d 489 (5th Cir. 1994)

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

U.S. v. Cabrero-Teran, 168 F.3d 141 (5th Cir. 1999)

U.S. v. Castro, 129 F.3d 226 (1st Cir. 1997)

U.S. v. England, 347 F.2d 425 (7th Cir. 1965)

U.S. v. Guzman-Ocampo, 236 F.3d 233 (5th Cir. 2000)

U.S. v. Miller, 161 F.3d 977 (6th Cir. 1998)

United States v. Dack, 747 F.2d 1172 (7th Cir. 1984)

United States ex rel. Accardi v. Shaughnessy, 347 U.S. 269 (1954)

United States v. Gustafson, 528 F.3d 587 (8th Cir. 2008)

STATUTES

Title 26 U.S.C. section 7201

Title 28 U.S.C. section 1651(a)

OTHER AUTHORITIES

Fifth Amendment of the U.S. Constitution

Supreme Court Rule 20

CITATIONS OF REPORTS OF OPINIONS ENTERED IN THE CASE

Petitioner filed a Brief (# 09-3256) in the Eighth Circuit Court of Appeals, which was denied April 27th 2010.

Petitioner filed an En Banc Hearing (# 09-3256) in the Eighth Circuit Court of Appeals, which was denied June 4th, 2010.

JURISDICTION

This Honorable Court has jurisdiction to issue extraordinary writs under 28 U.S.C. section 1651(a) and U.S. Supreme Court Rule 20, (especially) "except in certain narrowly defined circumstances" where extreme violations have occurred. Adequate relief cannot presently be obtained in any other form, or from any other court.

CONSTITUTIONAL PROVISION INVOLVED IN THE CASE

The Fifth Amendment of the Constitution of the United States of America:

. . . nor be deprived of . . . liberty . . . without
due process of law . . .

STATEMENT OF THE FACTS

The Petitioner was allegedly indicted by a Federal Grand Jury on six (6) counts of violating the criminal sections of the Internal Revenue Code. In order to allege an IRS criminal offense, there must be an official income tax liability based on IRS procedures that create an income tax liability including an official tax assessment record or IRS Form 4340.

There Is No Criminal Offense Without A Proper Income Tax Assessment Record.

STATEMENT OF THE ISSUES

1.) Whether the District Court erred in ruling that
denying Petitioner's Motion to Dismiss the Indictment
for the reason that the Grand Jury did not receive
the official assessment records when tax returns
were filed prior to the Grand Jury indictment is
an abuse of discretion.

2.) Whether Petitioner's rights under the 5th Amendment
due process of law and equal protection of the law
have been violated and whether relief needs to be
granted.

STATEMENT OF RELIEF SOUGHT BY PETITIONER

By this Petition for Writ of Mandamus, Petitioner seeks an order from this Honorable Supreme Court for nothing more than to Order the Appellate Court to perform its duty under the Constitution, reversing the said order of the Appellate Court and taking judicial notice that the Assessment records of the Petitioner were not given to the Grand Jury in violation of the law.

REASONS WHY THE WRIT SHOULD ISSUE

The Petitioner was allegedly indicted by a Federal Grand Jury on six (6) counts of violating the criminal sections of the Internal Revenue Code. In order to allege an IRS criminal offense, there must be an official income tax liability based on IRS procedures that create an income tax liability.

There Is No Criminal Offense Without A Proper Income Tax Assessment Record.

Counts I thru VI of the Mellor Indictment are defective because of the missing legal and fact elements, that being that no taxes are due and owing at the time of the indictment because the IRS has not legally or actually assessed an income tax on Form 4340 prior to the Grand Jury concurring on said indictment which is required under the statute with support of court decisions. The IRS has no evidence of even a civil liability. The IRS must furnish the Grand Jury the legal and proper Form 4340 assessments to have evidence of a tax liability due and owing according the following Federal Appellate Court cases, to wit:

Banks v. United States, 204 F.2d 666 (8th Cir.
1953); Gentry v. U.S., 962 F.2d 555 (6th Cir. 1992);
Johnson v. U.S., 990 F.2d 41 (2nd Cir. 1993); Huff
v. U.S., 10 F.3d 1440 (9th Cir. 1993); Geiselman
v. U.S., 961 F.2d 1 (1st Cir. 1992); Johnson v.
U.S., 123 F.3d 700 (2nd Cir. 1997); Stallard v.
U.S., 12 F.3d 489 (5th Cir. 1992) Howell v. U.S.,
164 F.3d 523 (10th Cir. 1998).

The government did not scrupulously observe rules or procedures which it has established; this case against the Petitioner should be struck down and this case dismissed under the Accardi Doctrine.

The taxpayer in this instant case filed tax returns, which is not in dispute. There are court cases that upheld the right to have a valid tax assessment record before a person could be charged criminally where the taxpayer had filed a tax return.

". . . under no circumstances may the trial court
usurp this right (valid tax assessment) by ruling
as a matter of law on an essential element of the
crime charged." U.S. v. England, 347 F.2d 425 (7th
Cir. 1965) (Explanation added.)

"There is no doubt that a valid assessment, and proof
thereof, was an essential element of the case against
Appellants." Banks v. United States, supra, reaffirmed
223 F.2d 884; U.S. v. England, supra.

Again, the IRS had never issued a certified individual or company tax assessment record on a form 4340 and including a Form 2866 -- Certificate of Official Record concerning the Petitioner at the time of the indictment. This omission of an essential legal and fact element results in no federal income tax liability. Therefore, there could never exist a criminal federal income tax liability giving jurisdiction to the U.S. District Court.

The denial of this Petitioner's Motion to Dismiss under the Accardi Doctrine is beyond the District Judge's power and inconsistent with accepted principles and usages of law. The "Accardi Doctrine" was established by the U.S. Supreme Court in United States ex rel. Accardi v. Shaughnessy, 347 U.S. 269 (1954). Several courts have upheld the Accardi Doctrine since 1954 making it an accepted principle of law with extended usage in many applications.

An indictment must contain all of the elements of the offense. Stirone v. U.S., 361 U.S. 212 at 218. To be sufficient, an indictment must allege each material element of the offense; if it does not, it fails to charge that offense. U.S. v. Cabrero-Teran, 168 F.3d 141 (5th Cir. 1999). To guarantee the right to be tried only after indictment, the Grand Jury must consider and find evidence supporting all of the crime's elements. U.S. Cabrera-Teran, supra.

The Mellor indictment did not contain all of the elements of the offense; therefore, the Petitioner could not be charged with an offense. In addition, the Grand Jury could not have considered and found evidence supporting each count because key evidence was withheld and the wrong legal standards were used by the Grand Jury.

In Honea v. United States, 344 F.2d 798, 803-04 (5th Cir. 1965): . . . ."it is not enough that defendant should be prosecuted for violating a particular statute; rather, the indictment must also allege every element of the offense. Only in this way is any assurance furnished that the grand jury found probable cause to believe the defendant in fact committed acts constituting the offense in question." "The failure of indictment to allege all elements of the offense may not be cured by evidence or instructions at trial, nor by . . . . a bill of particulars, and the indictment may not be actually or constructively amended by adding material allegations to the offense charged or of another offense."

To be sufficient, an indictment must allege each element of the offense; if it does not, it fails to charge that offense. U.S. v. Cabrera-Teran, supra; U.S. v. Guzman-Ocampo, 236 F.3d 233 at 236 (5th Cir. 2000).

Petitioner in this instant case was charged with crimes that do not exist under the introduction and statutes cited in the indictment and therefore, all counts are fatally defective. A crime charged without an element is not an existing valid crime. U.S. v. Miller, 161 F.3d 977 at 982 (6th Cir. 1998); Government of Virgin Islands v. Greenidge, 600 F.2d 437 at 439, note 2 (3rd Cir. 1979).

It is never within the discretion of the prosecutor, Grand Jury or the court to make determinations premised on incorrect legal standards. Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996); U.S. v. Castro, 129 F.3d 226 (1st Cir. 1997). Therefore, Counts I thru VI must be ruled to be null and void.

The Assessment was done in February of 2009 and the Grand Jury convened in 2008. The Form 4340 Assessment could not have been presented to the Grand Jury in October because it was not produced until February of 2009.

Counts I thru VI are missing the legal and fact elements that before a tax liability can be due and owing on any income received, an official certified tax assessment certificate must be prepared by the IRS which is a Form 4340. Neither the IRS nor the government had given the Form 4340's for the tax years involved in Counts I thru VI to the Grand Jury. However, the incomplete 4340 assessment with no Form 2866 was presented as evidence at trial in March of 2009. The 4340 assessment was dated February of 2009 -- months after the Grand Jury indictment. Therefore, the evidence the prosecutor presented at trial is proof that the 4340 assessment was not given to the Grand Jury which would be a fatal missing element and a due process violation of this taxpayer. Thus, the Grand Jury never was presented any Form 4340's and could not find probable cause to indict the Petitioner in this case.

Although the Honorable three (3) Judge Panel did not comment on the reasons or basis in ruling against Petitioner Mellor, it is reasonable to assume that they apparently agreed with the government and IRS that at least one (1) Appellate case is controlling in this instant case. Again, the issue is whether the IRS must issue a tax assessment in order to meet its burden under section 7201 of proving the existence of a tax deficiency.

The one (1) case quoted by the government and the IRS is:

1.) United States v. Gustafson, 528 F.3d 587, (8th
Cir. 2008)

This case does not support the government's and IRS's and Appellate Court's position that a tax assessment, in order to meet its burden under section 7201 of proving the existence of a tax deficiency, is not necessary. The Honorable Appellate Court misread the Gustafson case in their delivery of the judgment in the Government's favor. In Gustafson, supra; the same Eighth Circuit Court of Appeals case states specifically that "When a taxpayer fails to file a return [emphasis added] and then refuses to provide relevant information to the IRS, the agency . . . is not compelled to file a substitute return to trigger the assessment process. See Geiselman v. United States, supra. Indeed, it is not even compelled to make a formal assessment when no return is filed, [emphasis added] because any deficiency is deemed to arise by operation of law on the date a return should have been filed. See United States v. Dack, 747 F.2d 1172, 1174 (7th Cir. 1984)."

In the instant Mellor case, the Petitioner amended and filed his proper tax returns one and one-half years prior to his indictment and as the Seventh Circuit in U.S. v. England, 347 F.2d 425 (7th Cir. 1965) citing the Eighth Circuit Banks, case stated, "a valid assessment, and proof thereof, was an essential element of the case against appellants." For this proposition, we relied on the case of Banks v. United States, 204 F.2d 666 (8th Cir. 1953), and the statement of the Government attorney at the trial in this cause to the effect that, "We have to show there was an assessment, a legal assessment." That the existence of an outstanding tax liability is an essential element of a crime under Section 7201 of the Internal Revenue Code of 1954 was recently reiterated in Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965). There, the Supreme Court said:

"As has been held by this Court, the elements of
section 7201 are willfulness; the existence of a
tax deficiency, and an affirmative act constituting
an evasion or attempted evasion of the tax." (Citations
omitted.) (Emphasis added.)

The brunt of the Court's opinion in this cause is that, "in the criminal prosecution of one charged with the commission of a felony, the defendant has an absolute right to jury determination upon all essential elements of the offense." U.S. v. England, supra.

This question must be answered by the United States Supreme Court because they are of exceptional importance to the Eighth Circuit and the entire nation.

The Honorable Eighth Circuit Panel states that it considered the record in this case concerning Mellor's appeal without comment of the complex legal issues. This does not appear to be a de novo review.

Mellor would suggest that a de novo review would result in much more commentary and a reversal of the panel's and entire Court's decision.

The Appellate Court reviews an order disposing of a case on the pleadings de novo. McAuley v. Federal Ins. Co., 500 F.3d 784 (8th Cir. 2007); Knieriem v. Group Health Plan, Inc., 434 F.3d 1058, 1060 (8th Cir. 2006); Lowery v. Texas A&M Univ. Sys., 117 F.3d 242 at 246 (5th Cir. 1997). A review of a district court's decision on an appeal from a bankruptcy court is a de novo review. In re: First T.D. & Investment, Inc., Neilson v. Chang, 253 F.3d 520 at 526 (9th Cir. 2001); In re Galletti, 298 F.3d 1107 (9th Cir. 2002). We review a grant of summary judgment de novo, King v. Ames, 179 F.3d 370 at 373 (5th Cir. 1999) citing Merritt-Campbell, Inc. v. RxP Prods., Inc., 164 F.3d 957, 961 (5th Cir. 1999); Hinsley v. Boudloche, 201 F.3d 638 (5th Cir. 2000); Johnson v. U.S., By and Through Dept. of Treas., 123 F.3d 700 (2nd Cir. 1997); Huff v. U.S., 10 F.3d 1440 (9th Cir. 1993); Perez v. U.S., 312 F.3d 191 (5th Cir. 2002); Riley v. Dorton, 93 F.3d 113 at 115 (4th Cir. 1996); Clark v. U.S., 63 F.3d 83 (1st Cir. 1995); O'Bryant v. U.S., 49 F.3d 340 (7th Cir. 1995).

Apparently, the Eighth Circuit and other circuits traditionally do a de novo review of a summary judgment. The question is why a de novo review was not accomplished in this case.

This case demands a complete de novo review with proper findings of fact and conclusions of law from a panel.

The U.S. Supreme Court must consider this case because --

1.) This is a conflicting decision between the Circuit
Courts. (Seventh and Eighth Circuits)

2.) This is a conflicting decision in the Eighth
Circuit. A previous panel ruled in favor that a tax
assessment record was required. The Mellor panel
ruled against the fact that a tax assessment was
required under the law.

CONCLUSION

WHEREFORE, IT IS Prayed that this Honorable Supreme Court enter an Order to compel the lower courts to perform their mandatory duties correctly, follow Stare Decisis, dismiss this case and allow this Petitioner's Due Process to be upheld.

The Petitioner also requests that Findings of Fact and Conclusions of Law be included with any and all rulings on the above rulings or request.

Respectfully submitted,

Richard Lee Mellor
2175 Stratford Drive
Marion, Iowa 52302
Pro Se

[LPC]

Counts I thru VI of the Mellor Indictment are defective because of the missing legal and fact elements, that being that no taxes are due and owing at the time of the indictment because the IRS has not legally or actually assessed an income tax on Form 4340 prior to the Grand Jury concurring on said indictment which is required under the statute with support of court decisions. The IRS has no evidence of even a civil liability. The IRS must furnish the Grand Jury the legal and proper Form 4340 assessments to have evidence of a tax liability due and owing according the following Federal Appellate Court cases, to wit:

Banks v. United States, 204 F.2d 666 (8th Cir.
1953); Gentry v. U.S., 962 F.2d 555 (6th Cir. 1992);
Johnson v. U.S., 990 F.2d 41 (2nd Cir. 1993); Huff
v. U.S., 10 F.3d 1440 (9th Cir. 1993); Geiselman
v. U.S., 961 F.2d 1 (1st Cir. 1992); Johnson v.
U.S., 123 F.3d 700 (2nd Cir. 1997); Stallard v.
U.S., 12 F.3d 489 (5th Cir. 1992) Howell v. U.S.,
164 F.3d 523 (10th Cir. 1998).

A concise statement of a legal issue, followed by citations of authority. Very impressive, and it might be at least somewhat persuasive were it not for the fact that none of the cases cited have anything to do with what Mellor is claiming.

Of the eight cases cited, only the first is a criminal case. The rest are all civil cases in which an assessment was being questioned for some reason. So those cases have nothing to do with tax evasion under section 7201, and nothing to do with whether an assessment is a required element of the crime, or whether proof of assessment needed to be presented to the grand jury.

The first case involves a prosecution for tax evasion, but the words "assess" or "assessment" do not appear in the opinion. The opinion actually seems to contradict Mellor because the government was allowed to prove unreported income based on increases in the defendant's net worth from year to year, with no mention of any need for any notice of deficiency or any assessment of any tax on the unreported income, and the conviction was affirmed.

[Pottapaug1938]

I have this feeling that Mellor saw the word "assessment" in these opinions and said something on the order of "aha! The very Magic Word that I am looking for to drive the evil Klingon tax goons back where they came from!"

[Dr. Caligari]

The issue is actually a bit complicated, though not in a way that will help Melor any. Section 7201 has been held to cover two separate crimes-- "evasion of assessment" and "evasion of payment." The typical tax evasion case involves someone (like Melor) who cheats on their taxes by underreporting income or overstating deductions; no assessment is necessary to prosecute for such an offense. But 7201 also applies to someone who tries to evade the *collection* of tax (by hiding assets from the collection agent, or the like). In an evasion of payment case, at least some circuits require proof of an assessment because, without an assessment, the IRS is not permitted to collect, so the taxpayer is not doing anything illegal by frustrating collection before there is an assessment.

[notorial dissent]

More to the point, is that what happened? I think most likely not. Unless the world has changed remarkably, I am betting that Mellor is being shall we say less than forthcoming with all the facts.