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CAPOZZI 1233 3 Fresno, CA (93711 221-0200 Telephone: 559) 5 Attorney for Defendant, 6 MICHAEL S. IOANE 7 8 9 10 11 12 14 15 16 17 18 19 20 21
Defendant. 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

4 Fax ( 559) 221-7997 E-mail:

UNITED STATES OF AMERICA, Plaintiff, v. Case No. 1:09CR00142 LJO Defendant=s Motion to Dismiss for Selective Prosecution and for discovery Date: Time: Dept:


22 protected First Amendment and political activity, and that the prosecution holds personal 23 animosity toward this defendant. This includes protected due process issues guaranteed by the 24 United States Constitution. 25 26 27 28

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

2 HAMMOND DIV, 1991) Allen Sharp, Chief United States District Judge. The opinion of the 3 court was delivered by: SHARPMEMORANDUM OPINION AND ORDER ALLEN SHARP, 4 CHIEF UNITED STATES DISTRICT JUDGE I. Synopsis of the Law of Selective Prosecution 5 *fn1 6
[1] In our criminal justice system, the government retains broad discretion of whom to

7 prosecute. United States v. Goodwin, 457 U.S. 368, 380 n. 11, 73 L. Ed. 2d 74, 102 S. Ct. 2485 8 (1982). So long as the prosecutor has probable cause to believe that the accused committed an 9 10 11 12 13
offense defined by statute, the decision whether to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. Bordenkircher v. Hayes, 434 U.S. 357, 364, 54 L. Ed. 2d 604, 98 S. Ct. 663 (1978). [2] Although prosecutorial discretion is broad, it is not unfettered. Selectivity in the

14 enforcement of criminal laws is subject to constitutional constraints. United States v. Batchelder, 15 442 U.S. 114, 125, 60 L. Ed. 2d 755, 99 S. Ct. 2198 (1979). In particular, the decision to prosecute 16
may not be deliberately based upon an unjustifiable standard such as race, religion or other

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arbitrary classification, Bordenkircher, 434 U.S. at 364, including the exercise of constitutional rights. Goodwin, 457 U.S. at 372. [3] A claim of selective prosecution attacks not the merits of the prosecutor's case against the

21 defendant, but the prosecutor's choice to proceed against the defendant while declining to bring 22 similar criminal charges against others who appear equally culpable. In effect, a defendant's 23 selective prosecution challenge asks of the prosecutor, "Why have you singled me out?" 24 25 26 27 28
[4, 5] It is appropriate to judge selective prosecution claims according to ordinary equal 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

2 jurisdiction the equal protection of the laws." This guarantee, which applies with respect to the 3 enactment of laws by the legislative branches, also extends to the conduct of the executive 4 branches in the enforcement of these laws. In the oft-quoted language of Yick Wo v. Hopkins, 118 5
U.S. 356, 30 L. Ed. 220, 6 S. Ct. 1064 (1886):

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Though the law itself be fair on its face and impartial in appearance yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make

9 unjust and illegal discriminations between persons in similar circumstances, material to their 10 rights, the denial of equal justice is still within the prohibition of the Constitution. 11
[6] A claim of selective prosecution is not likely to succeed, for courts "have found only a

12 handful of equal protection violations" *fn3 arising out of the charging decisions of prosecutors. 13 14 15
This is because claimants bear a heavy burden to overcome the presumption of legal regularity in enforcement of the penal law by proving the three essential elements of a discriminatory

16 prosecution claim: (1) that other violators similarly situated are generally not prosecuted; (2) that 17 the selection of the defendant was intentional or purposeful; and (3) that the selection was pursuant 18 to an arbitrary classification. (Each element is later discussed in greater detail.) 19 20 21 22
[11] B. Intentional or Purposeful. Both the federal *fn4 and state cases dealing with selective 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

23 declared there is no equal protection violation unless the selection was deliberately based upon an 24 unjustifiable standard. There are effectively three impermissible bases for prosecutorial selectivity, 25 that is, three factors that may not motivate a prosecutor to proceed against a particular defendant: 26 (1) race, religion, or other suspect classification; (2) a desire to impede the exercise of 27 28

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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. 501,

3 the Supreme Court emphasized that the conscious exercise of some selectivity in enforcement is 4 not in itself a federal constitutional violation. To prevail on an equal protection claim, a defendant 5 6 7 8
far from clear just what constitutes an "arbitrary classification" in this context. A rather limited number of such classifications have routinely been held or assumed to be arbitrary; those include:

must show that he was selected pursuant to an arbitrary classification, such as race or religion. It is

9 race, national origin, gender, political activity or membership in a political party, union activity or 10 membership in a labor union, or more generally the exercise of first amendment rights. 11
Prosecutors have wide discretion in deciding whether or not to prosecute and what charge

12 to file or bring before a grand jury. United States v. Pitts, 908 F.2d 458, 460 (9th Cir. 1990). This 13 14 15
court has held that a denial of motion to dismiss for selective prosecution is reviewed under a clearly erroneous standard. United States v. Gutierrez, 990 F.2d 472, 475 (9th Cir. 1993). See

16 United States v. Benny, 786 F.2d 1410, 1418 (9th Cir.), cert. denied, 479 U.S. 1017 (1986); United 17 States v. Christopher, 700 F.2d 1253, 1258 (9th Cir. 1983), cert. denied, 461 U.S. 960 (1983). This 18 standard was chosen because selective prosecution, more than vindictive prosecution, lends 19 itself to the fact-finding standard. United States v. Wilson, 639 F.2d 500, 503 n.2 (9th Cir. 20 21 22 24

1981); see also United States v. Leidendeker, 779 F.2d 1417, 1418 (9th Cir. 1986) (The facts upon which a district court bases its denial of a motion to dismiss for selective prosecution are

23 reviewed under the clearly erroneous standard.).

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

25 for an abuse of discretion. United States v. Bourgeois, 964 F.2d 935, 937 (9th Cir. 1992) (resolving 26 prior conflict between abuse of discretion standard and clearly erroneous standard). 27 28

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Therefore, the Defense requests that the Honorable Court immediately issue the attached

2 subpoenas for:
1. Mark Eugene Cullers AUSA,

2. James Richard Terzian AUSA 3. Susan Phan AUSA 4. Lawrence G. Brown, acting United States Attorney 5. Dennis Collins, Revenue Officer 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 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 Defendant believes that the following has motivated selective prosecution further

24 documented by Grand Jury Transcripts, Affidavits in Support of Search Warrants, Police Reports, 25 Jail booking reports including: 26 27 28

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(a) Case # 3:08-CV-00517 USDC, Reno Nev. - suit against IRS for damages 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 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, 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 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 6

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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 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. 7

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(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 (0115-2010) 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, 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

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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 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.

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(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 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 10

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

23 was continually informed that he was involved in money laundering, tax evasion, aiding and 24 abetting, and conspiracy with defendant Booth and the trustees named below. The IRS 25 acknowledged that he was part of various real estate deals involving the plaintiffs allegations of 26 using illegal entities,( i.e. Southern Financial Services, Bakersfield Properties, 21st Century 27 28


Management Trust, Aligned Enterprises, Alpha Omega Trust, Acacia Corporate Management,

2 LLC and Mariposa Holding Inc), for tax evasion purposes. Real Estate Developer Bob Bell shares 3 an office with defendant Booth and they speak daily. Ioane has spoken with and worked directly 4 with Real Estate Developer Bob Bell and his Attorneys going back as far as 2002. Many of the 5
discussions involved the content of the IRS interviews and allegations. Plaintiff never brought

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action against Real Estate Developer Bob Bell; but, Ioane contacted by Developer Bob Bell and informed that he testified in front of the grand jury in early 2009, regarding the herein stated

9 indictment. Real Estate Developer Bob Bell is one of defendant Booths very close friends and 10 knew of Mr. Booths dealings for a very long time, Ioane has firsthand knowledge that Real Estate 11 Developer Bob Bell actually received over 500k in cash and over 1 million in real estate Deeds 12 from Southern Financial Services, trust, (alleged to be one of those illegal entities of Booth). Ioane 13 14 15
by Developer Bob Bell that his Attorney Michael Mears and Attorney John Reedy assured him, Bob Bell, that everything was done legally and correct. Ioane relied on these statements; however,

16 did have several conversations with Attorney John Reedy who coordinated the transaction. 17 2. Attorney Michael Mears; worked for Bob Bell and also worked with Attorney John Reedy, 18 since about 2002 or sooner regarding the Treble LLC investment and real estate development, 19 which involved Southern Financial Services, Bakersfield Properties and Trust Company, and 20 21 22

Treble LLC. Ioane is informed and believes that Attorney Michael Mears, Accountant Jim Baker, Attorney John Reedy, Real Estate Developer Bob Bell and defendant Steven Booth stated that the

23 deal was legal and Steven Booth was doing no wrong. Michael Mears spoke with the AUSA office 24 and IRS continually and then he assured everyone that no illegal tax crimes or otherwise had or 25 were occurring, nothing to worry about. 26 3. Attorney Steve Dakes of Dake-Braun-Monje; these folks reviewed the trusts and never 27 28


informed Ioane there was a problem. Steve Dakes knew that Ioane was a business administrator

2 and contracted work for the various entities alleged by the plaintiff to be illegally formed for tax 3 evasion purposes, Attorney Steven Dake was one of the Attorneys representing the above 4 referenced trusts subject of the indictment. In fact their names, (Attorney Steve Dake and his 5 6 7 8

office), have come up in the discovery, as CID reports revealed. Ioane was hired by Attorney Steve Dake to handle locating a tax preparer for the trusts, referenced above. Ioane contacted several CPAs and Bookkeepers as instructed and proceeded to coordinate the administrative work asked

9 of him by Attorney Steve Dake. A Mr. Finch, CPA, was contacted by Ioane, who according to CID 10 investigative report was and is a confidential informant, for IRS. Mr. Finch apparently was 11 interviewed and gave statements regarding Attorney Steve Dake and what he believed to be illicit 12 activity on the part of the law office, (this is available in the governments initial discovery to 13 14 15

defendant Ioane). Apparently Attorney Steve Dake and his law-firm, whom Ioane relied on, was hired by and paid for by defendant Steven Booth and the trust entities alleged to have been used for

16 illegal tax evasion purposes. Attorney Steve Dake, was so confident that no illegal activity had or 17 was taking place regarding these trusts, Booth or Ioane, that he tendered an offer to purchase one 18 of three pieces of real property owned by Bakersfield Properties and trust company. That offer was 19 not accepted; but later Acacia Corporate Management, LLC purchased the real property from 20 21 22
that this purchase was somehow illegal and that defendant Booth was the alter ego of Acacia

Bakersfield Properties and Trust Company, for valuable consideration. The government alleged

23 Corporate Management LLC., which was proven to be factually incorrect; (pre-indictment), 24 however, Acacia Corporate Management, LLC has been forced to file suit against the IRS because 25 they never the less filed a nominee lien on the subject property, see case number 1:07-CV-1129 26 AWI 27 28


4. Accountant Jim Baker; that defendant Steven Booth employed between years 1995 through

2 2005. Ioane is informed and believes that Mr. Baker has been indicted and pleads; but not 3 regarding the Booth matter regarding the bookkeeping involving all trusts and the tax preparation. 4 Ioane was personally involved hearing statements from Mr. Baker that the taxes and accounting 5
were correct, and that he handled all this stuff. In fact Baker is the one who set up the trusts that are the actual subject of the tax evasion Alpha Omega and Aligned Enterprises. Account Jim Baker, handled all bookkeeping entries and then it was Jim Baker who decided what numbers

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9 should be applied to what tax returns, involving all entities directly or indirectly related to Booth. 10 5. Certified Public Accountant Clark Hurst of Bakersfield; who stated to Ioane that Mr. Booth 11 has employed his services since 2005 and is currently using the services of Mr. Hurst. Ioane has 12 heard Mr. Hurst state that nothing was wrong with how Mr. Booth operated his business using 13 14 15

various entities and corporations and that he, Clark Hurst took his instructions from Attorney John Reedy. Ioane has firsthand knowledge that CPA Clark Hurst, prepares and handles the filing of

16 defendant Steven Booth tax returns, worked on tax returns for Bakersfield Properties and Trust 17 Company, Southern Financial Services, 21 Century Trust, Aligned Enterprises and Alpha Omega 18 not excluding the medical corporations. 19 6. Attorney Michael Kia; wrote letters to the IRS setting up appointments for defendant Booth. 20 21 22
IRS disputes in detail with Ioane. Attorney Michael Kia was directly involved in each of the

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

23 entities that the government claims were used for illegal tax evasion and Attorney Michael Kia 24 spoke on many occasions with IRS agent Fred Chynoweth and Michael Hoos, in an attempt to 25 resolve the IRS disputes that had been pending since at least 2002. 26 IRS received numerous letters from Attorney Michael Kia and know that he was directly involved 27 14 28

in each allegation alleged in the indictment.

2 7. Attorney John Reedy, defendant Steven Booths general counsel and corporate attorney, 3 created and managed the Booth Corporations and trusts, wrote letters to the IRS and Inspector 4 general regarding the allegations in the current indictment several years prior to any indictment 5 6 7 8
IRS office and the AUSA regarding the alleged illegally created entities and even wrote communications indicating that he created and managed those entities.

being returned. Attorney John Reedy was in continual communication with Special agents at the

9 8. In 2006, defendant Steve Booth hired Attorney Mark Lane and Mr. Lane contacted AUSA office 10 after Steves home was raided in March of 2006. Ioane recalls that he informed the IRS that the 11 raid had no merit and that his clients rights were being violated. Ioane worked with Mr. Lane and 12 he informed Ioane that Mr. Booth didnt violate any laws. Ioane further recalls that Mr. Lane 13 14 15
actively tried to resolve the problem with the IRS with Ioanes assistance, sending letters of communication to AUSA Verna Santos and having phone calls with her.

16 9. Then we have all the trustees who First amendment Publishers and Acacia Corporate 17 Management, LLC, ( entities that Ioane is employed by), worked for as the administrator of the 18 trusts, following their instructions and the accountants making sure that they all followed the terms 19 of the trust. Doctor Thomas Rios, (who plead guilty to tax evasion, unrelated to Booth entities and 20 21 22
got probation), he was a trustee, Margaret Squires, trustee, Doctor John James Inis, Jr.,trustee, Jean Annette Liascos,trustee Doctor Loren McCan, trustee All of these individuals were the

23 trustees and knew they were trustees and that they hired the administrator. Ioane was informed by 24 them and believes that each and every one of them was threatened by IRS with prosecution if they 25 did not say exactly what the IRS wanted them to say. Ioane is further informed and believes that 26 each was interviewed several times, but never were they indicted; although these were the parties 27 15 28

signing and authorizing all activity involving the Aligned Enterprises trust and Alpha Omega trust,

2 in addition to the other trusts. 3 9. Attorney Eric Fogderude, is more than directly involved since he worked with defendant 4 Steven Booth regarding a civil contempt matter, (specifically related to each and every allegation 5
of the indictment, in 2005. The matter was held before the Honorable Judge Wagner, at the US

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district Court California, case number 05-cv-290-OWW-DLB. Defendant Ioane from this point forward worked with and discussed legal defenses and strategies involving Booth, Alpha Omega

9 trust and Aligned Trust. Eric Fogderude was in continual contact with IRS attempting to resolve 10 the issue that Booth had regarding the IRS. The exact same allegations that were being made or 11 inferred during the contempt proceeding is now part of the indictment. Mr. Ioane continually 12 consulted with Mr. Fogderude as administrator/consultant for both defendants Booth and his 13 14 15 16
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

17 communicated with each and every one of the above mentioned un-indicted individuals, and that 18 this defendants claim has nothing in common with class or similarly situated or similar 19 circumstance irrelevant to and beyond or above those that are directly involved with the 20 21 22

indictment and/or the allegations raised in the indictment and government theory of the case. The governments theory simply would not exist if it had not been for the above actors. But none of

23 them have been indicted for those alleged criminal acts. The question then is why was Ioane 24 invidiously selected from the pool of actors, especially those actors who were licensed Attorneys 25 and accountants, whom Ioane relied on. 26 27 28 POINTS AND AUTHORITIES

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IS MORE THAN PERSONS IN SIMILAR CIRCUMSTANCES "The equal protection doctrine requires that persons in similar circumstances must receive similar treatment under the law." In other words the equal protection doctrine is blind to professional titles and the un-

8 indicted others are persons are more than just similar situated or there are more than just similar 9 circumstances since they were directly involved requiring that they must receive similar treatment 10 under the law, United States v. Armstrong, 517 U.S. 456, 116 S. Ct. 1480, 134 L. Ed. 2d 687 11 [1996], quoting YICK WO V. HOPKINS, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 [1886]). 12 13 14

Specifically, police and prosecutors may not base the decision to arrest a person for, or charge a person with, a criminal offense based on "an unjustifiable standard such as race, religion, or other

15 arbitrary classification" (United States v. Armstrong, quoting Oyler v. Boles, 368 U.S. 448, 82 S. 16 Ct. 501, 7 L. Ed. 2d 446 [1962]). 17
Selective prosecution is a violation of the constitutional guarantee of equal protection for

18 all persons under the law. On the federal level, the requirement of equal protection is contained in 19 20 21 22 24
the DUE PROCESS CLAUSE of the Fifth Amendment to the U.S. Constitution. The Equal Protection Clause of the Fourteenth Amendment extends the prohibition on selective prosecution to the states. The equal protection doctrine requires that persons in similar circumstances must receive similar

23 treatment under the law.

All of these above-named individuals were directly involved and similarly situated in one

25 way or another regarding the very same transactions plaintiff complains about regarding only 26 27 28

defendants Ioane and Booth. In other words, the above named individuals all have their hands on 17

the same allegations, but there is no equal treatment under the law. As a matter of fact

2 prosecutorial discretion in this case is irrelevant since it involves other named individuals that were 3 or are directly involved with the indictment. Further the prosecution is either estopped or 4 prohibited from violating the equal protection doctrine having failed to indict others that were 5 6 7 8 9

directly involved that is much more than persons in similar circumstances. Refusal to apply the equal protection doctrine within the exercise of prosecutorial discretion is grounds for dismissal with prejudice of the indictment. Otherwise, since the plaintiff has decided not to pursue these individuals, then defendant

10 Ioane demands that the indictment be dismissed with prejudice so that he can be treated equally 11 under the law to those named above that are more than similarly situated. 12 13 14 15
As a matter of fact, the prosecution already has information in its possession knowing full 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 that Ioane

16 and Booth are the only parties from the list of above actors, that brought and as of today 17 maintained civil actions against the United States for constitutional violations they have suffered 18 from the IRS over these matters, not excluding the very illegally executed search warrants and 19 Michael Ioane is the co-author and publisher of the Boston Tea Party Book and one of the founders 20 21 22 23
of the Tea Party movement; (otherwise there is no other distinction between them from the other actors). Further, defendant Ioane believes he has been selected for prosecution motivated by the

24 Accuseds profile because he has exercised certain expressions and prosecuted actions protected 25 by the law, and First, Fourth, and Fifth Amendments. Regardless of whether or not these 26 allegations are true, they form an invidious discriminatory animus creating a personal animosity 27 18 28

1 3

toward this defendant. *fn5 In this case defendant Ioane sought to secure constitutional

2 guarantees, and protections afforded to him by law.

Although the individuals named above are connected or related to this case as un-indicted

4 co-conspirators; defendant Ioane also believes he has been selected for prosecution motivated by 5
the Accuseds profession just because he is not an attorney, CPA, tax preparer, or someone 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

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9 documentation to establish that the Accused has been selected for prosecution when thousands 10 similarly situated were not. The above noted subpoenas are immediately needful, *fn6 and 11 necessary to the hearing of a pre-trial motion to dismiss for selective prosecution and to preserve 12 the issue of selective prosecution for appeal. 13 14 15

In this case, defendant Ioane has demonstrated that the United States retaliated with an

indictment and selected this defendant for prosecution because of his civil and administrative

16 litigations, complaints, letters, and political activities that are protected matters involving speech, 17 being secure in his house, papers and effects, and due process. 18
"it is . . . well settled that where legal rights have been invaded, and a federal statute (law or

19 rule) provides for a general right to sue (or file motions) for such invasion, federal courts may use 20 21 22 23 24 25 26 27 28
CONCLUSION 19 any available remedy to make good the wrong done." Bell v. Hood (1946) 327 U.S. 678 at 684 (emphasis included)

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For the foregoing reasons, Defendant Michael S. Ioane respectfully requests that the Court

2 issue subpoenas or dismiss the indictment with prejudice.

Dated: Respectfully submitted, /s/ Anthony P. Capozzi, Attoreny for Defendant (1985).

6 *fn1 See generally Wayte v. United States, 470 U.S. 598, 84 L. Ed. 2d 547, 105 S. Ct. 1524 8 clause, it does contain an equal protection component. Bolling v. Sharpe, 347 U.S. 497, 499, 98 L. 9 Ed. 884, 74 S. Ct. 693 (1954). 10 11
*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 *fn2 Although the fifth amendment, unlike the fourteenth, does not contain an equal protection

12 79, 97 S. Ct. 63 (1976); United States v. Picciurro, 408 F. Supp. 1055 (E.D. Wis. 1976). 13

14 was motivated by discriminatory purpose with resulting discriminatory effect, establishing not only 15 decision to prosecute was based on impermissible considerations. U.S. v. Richardson, 856, F.2d 16 644.
that he has been singled out while others similarly situated have not been prosecuted, but also that

*fn5 C.A.4 (N.C.) 1988: To establish selective prosecution, defendant must show that Government

17 C.A.6 (Ohio) 1986. Defendant asserting selective prosecution bears heavy burden of establishing, 18 because of conduct of type forming basis of charge against him, defendant has been singled out for 19 bad faith, that is, based upon such impermissible considerations as race, religion, or desire to 20 prevent exercise of his constitutional rights. U.S. v. Bustamante, 805 F.2d 201. 21 D.Mass. 1995. Defendant may overcome threshold presumption in favor of regularity of
prosecution, and that Governments discriminatory selection of defendant has been invidious or in at least prima facie, that while others similarly situated have not generally been proceeded against

22 discrimination; to show intentional and purposeful discrimination, defendant must establish that situated have been proceeded against because of 23 while others similarly charge againstnot generallybeen singled out for prosecution andconduct of type forming basis of him, he has that 25
that is, based upon such impermissible considerations as race, religion, or desire to prevent his exercise of constitutional rights. U.S. v. Goldberg, 906 F.Supp.58.

prosecutors decision to indict by making prima facie demonstration of intentional and purposeful

24 governments discriminatory selection of him for prosecution has been invidious or in bad faith, 26 N.D.Ind. 1991. Although prosecutorial discretion is broad, it is not unfettered; selectivity in 27 28


1 prosecute may not be deliberately based upon unjustifiable standards such as race, religion, or 2 other arbitrary classification, including exercise of constitutional rights. 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

enforcement of criminal laws is subject to constitutional restraints; in particular, decision to

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