United States District Court, D. New Mexico
C. Anderson United States Attorney Reeve L. Swainston Holland
S. Kastrin Margaret M. Vierbuchen Assistant United States
Attorneys United States Attorney's Office Albuquerque,
New Mexico Attorneys for the Plaintiff
Bowles Bowles Law Firm Albuquerque, New Mexico Attorney for
MEMORANDUM OPINION AND ORDER
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.
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
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.
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.
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.”). For example, he asserts: “The
Constitution fixed jurisdiction limit[s] for Congress to
exercise legislative jurisdiction only
within the exterior borders of District of Columbia,
herein ‘D.C.'. Gutierrez demands the Court provide
incontrovertible, lawfully gathered, admissible
evidence of claimed authority to arbitrarily
enlarge its Constitution[ally] fixed
jurisdiction limit beyond the exterior borders of
D.C.” 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
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). 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 (purporting to quote
Penhallow v. Doane's Administration, 3 U.S. 54
(1795)(“[E]very government is an artificial person and
can only interface with another artificial
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.
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.
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.
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
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
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 at 6 (citing 26
U.S.C. §§ 1, 6012, 6301-07, 7201-17). It follows,
according to the United States, that Gutierrez' lack of
consent does not affect the indictment. See Response
the United States argues that, contrary to Gutierrez'
contentions, the criminal statutes at issue do not need
implementing regulations for the United States to charge
Gutierrez. See Response at 7. To support that
proposition, the United States argues that 44 U.S.C. §
1505(a) does not require implementing regulations “for
each section of the United States Code.” Response at 7.
It adds that the Tenth Circuit has recognized this argument
as another frivolous tax protestor argument. See
Response at 7 (citing Lonsdale v. United States, 919
F.2d at 1447). The United States concludes that the
Court's jurisdiction is proper, and that Gutierrez'
other arguments lack merit, so the Court should deny the
Gutierrez replies. See Alleged Defendant Replies to
United States' Response at 1, filed July 27, 2016 (Doc.
24-1)(“Reply”). Unlike the Motion, the
Reply lacks a uniting theme, and its desultory approach in
refuting the United States' arguments is more of a
shotgun spray than a targeted assault. See Reply at
1-7. The Court attempts to capture all of Gutierrez'
maintains that the Court lacks jurisdiction, because the
Constitution limits the Court's jurisdiction.
See Reply at 1. He also avers that the United States
violated the Declaratory Judgment Act, 28 U.S.C. §§
2201-02, because it “arbitrarily changed Gutierrez'
declared status as a nontaxpayer to a tax protestor.”
Reply at 3. Gutierrez adds that the case raises political
questions beyond the Court's jurisdiction. See
Reply at 3-4. He argues that the Court cannot label his
arguments frivolous without “a separate pleading and
trial on the matter of being frivolous.” Reply at 4. It
follows, according to Gutierrez, that the Court would violate
due process if it labeled his arguments frivolous and that it
would also present a conflict of interest. See Reply
also argues that the United States “cited irrelevant
case law” when it cited Tenth Circuit precedent,
because the Court is an Article IV legislative court, which
“can only rule on what Congress says that [it] can rule
on.” Reply at 3. See id. at 5. Gutierrez also
accuses the United States of spewing political propaganda by
citing Tenth Circuit caselaw. See Reply at 3
(“[The] United States abus[es] irrelevant case law as a
means of [disseminating] political propaganda.”);
id. at 4 (“[The] United States is: . . .
abusing federal case law and stare decisis as
political propaganda that is irrelevant.”);
id. (“[The] United States is: . . . [t]rying
to deceive the audience that [is] the target of such
propaganda in order to deprive them of [c]onstitutionally
protected rights to life, liberty, and property.”).
concludes his Reply by arguing generally that the United
States fails to refute his arguments. See Reply at
5-7. Specifically, he contends that the United States does
not demonstrate that he consents to jurisdiction or consents
to being taxed, nor does the United States demonstrate that
he is not a sovereign. See Reply at 5-6. He also
argues that the United States does not present evidence to
support the indictment. See Reply at 6. He adds that
the United States does not refute any of the caselaw he
cites. See Reply at 7. Finally, Gutierrez argues
that the United States does not refute his contention that
the Court has a pecuniary interest in the proceeding.
See Reply at 7 (“[T]hereby its silence
admits the Court is judicially
unsanitary.”)(emphasis in original).
subsequently files the Notice of Default, in which he argues
that, because the Court did not respond to his Motion within
thirty days, the Court admits that: (i) it lacks
jurisdiction; (ii) Gutierrez is a sovereign; (iii) Gutierrez
is a nontaxpayer; (iv) Gutierrez did not consent to being
taxed; (v) Gutierrez has no tax liability; (vi) the
indictment is invalid; and (vii) the Court has a pecuniary
interest, or, as Gutierrez phrases it, “the Court is
not judicially sanitary.”
Notice of Default at 2-3 (emphasis in original). He concludes
that the Court and the United States, by continuing to hold
him, is violating the Fifth Amendment to the Constitution of
the United States of America, and the Court is estopped from
challenging anything in the Motion. See Notice of
Default at 3. Thus, according to Gutierrez, the Court must
dismiss the Indictment with prejudice. See Notice of
Default at 3.
also files the Challenge Motion, which raises many of the
same arguments already mentioned. See Notice of
Challenge to the Court's Conduct at 3-4, filed August 9,
2016 (Doc. 26-1)(“Challenge Motion Notice”);
Memorandum of Law at 2-7, filed August 9, 2016 (Doc.
26-2)(“Challenge Motion Mem.”). The Court
details only those arguments that diverge from Gutierrez'
Gutierrez argues that Damon P. Martinez, former United States
Attorney for the District of New Mexico, and Assistant United
States Attorneys (“AUSA”) Reeve Swainston and
Margaret M. Vierbuchen -- the AUSAs prosecuting the case --
violated the United States Attorneys' Manual.
See Challenge Motion Notice at 5-7; Challenge Motion
Mem. at 12-16. This argument's general thrust is that the
United States Attorneys' Manual requires the United
States to let the grand jurors know all of Gutierrez'
arguments -- e.g., that Gutierrez is a sovereign -- before
the grand jurors may return an indictment. See
Challenge Motion Notice at 5-7; Challenge Motion Mem. at
12-16. Second, Gutierrez appears to assert a freeform due
process argument that the United States is depriving him of
property without process by prosecuting him for tax crimes.
See Challenge Motion Notice at 6-7 (“Give me
Liberty or give me death.”)(emphasis omitted);
Challenge Motion Mem. at 16-17. Accordingly, Gutierrez
requests that the Court dismiss the indictment. See
Challenge Motion Mem. at 17.
The United States' Motion.
United States argues that the Court should strike or deny the
requests in the Default Notice and the Challenge Motion,
because: (i) Gutierrez filed those documents without his
counsel joining them; (ii) those documents are untimely;
(iii) and they lack merit. See United States'
Motion at 1. First, the United States asserts that, while
Gutierrez has the right to represent himself, he does not
have a right to hybrid representation where his counsel files
some motions and Gutierrez files others. See United
States' Motion at 1 (citing United States v.
Hill, 526 F.2d 1019, 1025 (10th Cir. 1975)). It follows,
according to the United States, that the Court should strike
or deny the requests in the Default Notice and Challenge
Motion, because Gutierrez has counsel, and his counsel has
not joined those motions. See United States'
Motion at 1-2. The United States next asserts that the Court
must dismiss the Default Notice and the Challenge Motion,
because they are untimely under the Court's scheduling
order. See United States' Motion at 2. The
United States also argues that the Court should dismiss the
Default Notice and the Challenge Motion, because they are
frivolous tax protestor arguments. See United
States' Motion at 2-3.
Court held a hearing on August 19, 2016. See
Transcript of Motion Proceedings at 2:1-2 (taken August 19,
2016)(Court), filed September 16, 2016 (Doc.
34)(“Tr.”). On the Motion, Gutierrez asserted
succinctly that “from the record before you, it has not
been proven that jurisdiction has been properly given to the
Court to proceed” and had nothing more to say. Tr.
3:23-4:1 (Gutierrez). The United States, similarly, remained
brief, and rested on its written filings. See Tr.
4:9-11 (Vierbuchen). The Court orally denied Gutierrez'
challenge to its jurisdiction, noting that it had seen
similar arguments and that the Tenth Circuit's decisions
on these arguments bind it. See Tr. at 4:12-5:10
(Court). Turning to the Default Notice, Gutierrez had nothing
further to say except requesting that the Court publish its
findings of fact and conclusions of law. See Tr. at
5:20-24 (Gutierrez). He requested the same work for the
Challenge Motion. See Tr. at 7:19-21 (Gutierrez).
The United States rested its arguments again on the
briefings. See Tr. at 6:21-7:3 (Vierbuchen). The
Court agreed to write an opinion for Gutierrez. See
Tr. at 5:25-6:12 (Court); id. at 7:4-25 (Court,
to the United States' Motion, the United States rested on
its briefing. See Tr. at 9:11 (Vierbuchen);
id. at 10:22 (Vierbuchen). Gutierrez made four quick
arguments. See Tr. at 9:16-10:17 (Gutierrez). First,
he contended that the United States represents that he
submitted this argument pro se; he argued that, instead, he
submits them “sui juris, ” so the United States
argument is “irrelevant.” Tr. at 9:17-21
(Gutierrez). Second, he argued that his Motion, the Default
Notice, and the Challenge Motion are timely, because
challenges to jurisdiction can be made at any time.
See Tr. at 9:22-25 (Gutierrez). Third, he contended
that his arguments are not frivolous and that, contrary to
the United States' assertions, he cites authority,
because he cited the Supreme Court of the United States and
the Constitution. See Tr. at 10:2-11 (Gutierrez).
Finally, he contended that the United States misconstrues the
relief he requests; the only relief he requests is
“justice.” Tr. at 10:14-17 (Gutierrez). The Court
subsequently granted the United States' Motion in part
and denied it in part. See Tr. at 8:16-9:8 (Court);
id. at 10:23-11:8 (Court). It denied the United
States' Motion to the extent that it requested the Court
to strike the Default Notice and the Challenge Motion,
because the Court had told Gutierrez that it
“wouldn't shut the courthouse door” on
Gutierrez' motions filed separately from his counsel, and
because the Court had to always be mindful of its
jurisdiction. Tr. at 8:16-9:5 (Court); id. at
10:23-11:3. It granted the United States' Motion,
however, to the extent that the United States requests that
the Court deny Gutierrez relief. See Tr. at 9:3-8
(Court); id. at 11:5-6 (Court). The Court told
Gutierrez it would also write an opinion on this issue.
See Tr. at 11:6-8 (Court).
REGARDING FEDERAL COURTS' ...