IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION UNITED STATES OF AMERICA, Plaintiff, v. JOSHUA SIMONSON, and KRISTEN SIMONSON, Defendants.

) ) ) ) ) ) ) ) ) ) ) ) )

No. 11-00224-01-02-CR-W-DW

GOVERNMENT’S MOTION IN LIMINE The United States submits this motion in limine seeking to preclude pro se defendants Joshua Simonson and Kristen Simonson from making improper arguments, eliciting confusing non-evidence, and calling improper witnesses at trial. INTRODUCTION Based on dozens of documents the government has received from the defendants, plus their conduct in court, their pro se pleadings, and their exhibit and witness lists (Doc. 61), they clearly intend to raise improper arguments and introduce irrelevant and confusing documents related to “sovereign citizen” and “redemption” theories at trial. Federal courts have flatly barred such arguments and documents as being without merit and inadmissible. The government respectfully requests this Court to similarly bar the raising of “sovereign citizen” type theories here. Second, the government requests the Court to strike all of the defendants’ recently-filed exhibit list, except for one relevant exhibit (LL), and most of the witness list, except four appropriate witnesses. This Court has previously ordered such in the case United States v.

Case 4:11-cr-00224-DW Document 62 Filed 11/14/12 Page 1 of 19

Roderick Moore, et. al., Case No. 10-00035-01-CR-W-DW, which also involved sovereign citizen theories. Specifically, the United States respectfully requests the Court to: (A)

Prohibit defendants from making any sovereign citizen, “strawman,” and

redemption theory type arguments, including allusions to the existence of secret individual accounts for U.S. citizens at the Federal Reserve Bank; (B)

Prohibit defendants from referencing at trial or invoking provisions of the

Uniform Commercial Code, Administrative Procedures Act or other unrelated and misleading bases of civil, administrative, regulatory and international trade law; (C)

Prohibit defendants from introducing exhibits A through AAA, with the exception

of exhibit LL; and (D)

Prohibit defendants from calling the following identified witnesses: U.S. Treasury

Secretary Timothy Geithner; Internal Revenue Service Chief Financial Officer Janice Lambert; Western District of Missouri Court Clerk Ann Thompson; U.S. Magistrate Judge John T. Maughmer; U.S. Pre-trial Officer Emil “Van” Hecke; and case AUSA Daniel Nelson. FACTUAL BACKGROUND AND PROCEDURAL POSTURE 1.

On September 21, 2011, defendants Joshua and Kristen Simonson were indicted

on nine counts including conspiracy to defraud the United States in violation of 18 U.S.C. §§ 286; filing false claims for tax refunds in violation of 18 U.S.C. §§ 287 and 2; presenting fictitious instruments with intent to defraud in violation of 18 U.S.C. §§ 514 and 2; money laundering in violation of 18 U.S.C. §§ 1957 and 2; and mail fraud in violation of 18 U.S.C. §§ 1343 and 2. (Doc. 1). The conspiracy included filing three false tax returns, and subsequently

2

Case 4:11-cr-00224-DW Document 62 Filed 11/14/12 Page 2 of 19

receiving and converting three large refund checks from the U.S. Treasury (Count 1).1 The Simonsons’ three filed tax returns falsely claimed that refunds were due because of overwithholding of taxes already paid to the IRS (Counts 2 through 4). Defendant Joshua Simonson laundered the proceeds by transferring the money, and by purchasing a new $50,529.07 sport utility vehicle (Counts 7 through 9). After receiving notice of the IRS’s intent to recover the refunds, Joshua Simonson sent two fictitious checks, for $1,005,356.36 and $371,933.81, to the IRS for purported repayment (Counts 5 and 6). These checks bore the routing number of the Federal Reserve Bank of Atlanta. That institution does not maintain individual checking accounts. Defendant Kristen Simonson is also charged with two counts of mail fraud in connection with her causing to be sent through the mail two fraudulent tax returns for the purpose of generating fraudulent tax refunds (Counts 10 and 11). 2.

On September 22 and 23, 2011, the defendants appeared on the charges in the

Western District of Missouri. After pleading not guilty, they were granted pretrial release. (Doc. 7 and 14). Assistant Federal Public Defender Laine Cardarella was initially appointed to represent Kristen Simonson and Jack West was appointed to represent Joshua Simonson. (Doc. 5 and 12). Thereafter, those lawyers withdrew, and Nickalaus Seacord and John Osgood entered appearances for Kristen and Joshua Simonson, respectively. (Doc. 16 and 17).

1

The three fraudulent refund checks were in the amounts of $582,277.24, $4,215, and $223,726. 3

Case 4:11-cr-00224-DW Document 62 Filed 11/14/12 Page 3 of 19

In the course of this case, the defendants have denied being sovereign citizens.2

3.

But during the course of the case, they have exhibited behavior associated with sovereign citizens to challenge the jurisdiction of the court and the legitimacy of federal criminal proceedings. For example, for each court appearance, the Simonsons sit in the gallery, initially refusing Judge Maughmer’s “invitation” to sit at counsel table, while reciting baseless sovereign citizen rhetoric to the Court. Joshua Simonson insists on giving elaborate purported waivers and disclaimers prior to speaking with the Court, including by referring to himself as the executor of the estate of Joshua Simonson. 4.

From the beginning of this case, the Simonsons also have sent to the

undersigned’s office and to the IRS a multitude of bizarre documents referencing various purported civil and administrative procedures, and asserting legally unavailable remedies. These documents are all legally baseless, and of the same type used by sovereign citizens. Some purport to be legal pleadings, citing to the Uniform Commercial Code, the Administrative Procedures Act, and other sources of civil and trade law that have no bearing on a federal criminal case. All are signed along the lines of “Joshua-Michael: Simonson, Reserving All Liberties in Christ,” and “Kristen-Loree: Simonson, Reserving All Liberties in Christ.” Initially,

2

During the investigation, Joshua Simonson has acknowledged signing a letter dated March 24, 2010, from the self-proclaimed “De Jure Grand Juries of the American Republics,” sent to all or most of the 50 U.S. Governors, threatening them to immediately resign or swear an oath of fealty. Tim Turner, the ringleader of this effort, and selfproclaimed President of the sovereign citizen group “Republic for the united states of america,” was recently indicted in the Middle District of Alabama for tax crimes and use of fictitious financial instruments. He conducted seminars at which he taught attendees how to file retaliatory liens against government officials and to defraud the IRS by preparing and submitting fictitious bonds to the United States government in payment of federal taxes. See http://www.justice.gov/opa/pr/2012/September/12-tax-1126.html. 4

Case 4:11-cr-00224-DW Document 62 Filed 11/14/12 Page 4 of 19

these documents were not filed because defendants were represented by counsel. In some, the defendants asserted that the government’s failure to respond in opposition in a certain number of days would result in a default judgment or a summary judgment against the United States. Since that time, the defendants have asserted some type of civil collateral estoppel claim that the government’s case is “settled” due to a perceived failure by the government to timely respond to their frivolous pleadings, which means the Simonsons’ tax debts now should be legally deemed “settled,” “paid in full,” and “closed.”3 The government believes that the defendants’ recent “petition to suppress evidence” is a reference to this creative but erroneous waiver and estoppel theory. (Doc. 58). The motion does not state any legitimate legal basis to suppress evidence. 5.

On August 16 and 17, 2012, attorneys Osgood and Seacord filed motions to

withdraw from the case following their termination by the defendants. (Doc. 33 and 34). A hearing was held with counsel and the defendants on August 28, 2012, and Judge Maughmer granted the defendants’ motions, allowing both attorneys to withdraw, and allowing Joshua and Kristen Simonson to knowingly and voluntarily proceed pro se. (Doc. 43). 6.

On numerous occasions since, defendants have filed numerous, frivolous,

sovereign citizen-type documents with the court. (Doc. 35, 38, 39, 40, 45, 46, 49, 50, 52, 55, 57, 58, 59 and 60). These documents plainly have no merit. They contain assertions couched in archaic and sophomoric legalese citing to obscure civil and administrative sources of law that have no bearing on a federal criminal case. Such arguments are frequently used by sovereign citizens to try to hijack criminal cases, which often, as in this case, involve fraudulent tax returns 3

The government notes that even if the defendants had paid back their ill-gotten tax proceeds – which they have not – such subsequent measures would have no bearing on the government’s criminal case at bar. 5

Case 4:11-cr-00224-DW Document 62 Filed 11/14/12 Page 5 of 19

and fictitious financial instruments. Such documents are readily available on the Internet. To the undersigned’s knowledge, all such arguments have been thoroughly rejected and debunked by every federal court to consider them. 7.

On November 13, 2012, defendants filed an exhibit list and a witness list with the

Court, summarized below. (Doc. 61). They demonstrate that defendants are planning a trial defense centered on the same arguments that have been held by other courts to be baseless, not relevant and inadmissible. The Government respectfully requests that this Court limit such arguments as described in (A) and (B) above, and limit the defendants’ exhibit and witness lists to include only witnesses with personal knowledge of the events underlying the indictment, and only evidence that is credible and relevant to the crimes charged. ARGUMENT While “sovereign citizen” and “redemption” theories are merely gibberish, they may serve to confuse and mislead the jury during trial. This motion in limine is designed to apprise the Court of these potential improper arguments and to safeguard the jury from hearing them. Moreover, most witnesses listed are inappropriate, and most exhibits identified are inadmissible. The United States respectfully requests that the court prohibit defendants from referring to such “evidence” and calling such witnesses. A.

Arguments Related to the “Sovereign Citizen” Movement and “Redemption Theory” are Not Legal Defenses and Would Serve Only to Hijack the Proceedings and to Mislead and Confuse a Jury

Courts across our nation have dealt with similar misguided criminal defendants and have uniformly rejected their outlandish legal arguments. There are several common themes that “sovereign citizens” and “redemption theory” defendants raise during their criminal cases. A 6

Case 4:11-cr-00224-DW Document 62 Filed 11/14/12 Page 6 of 19

review of other court opinions will assist the Court in anticipating these improper arguments that will likely be raised by the defendants at their trial. In Marshall v. Florida, 2010 WL 1248846 (S.D. Fla. Feb 1, 2010), United States Magistrate Judge Patrick White prepared a Report and Recommendation that discusses the redemption movement. It reads in pertinent part: “Redemption” is an anti-government scheme that utilizes commercial law to harass and terrorize its targets. It is increasingly popular among prison populations. The theory advocates that an individual can ‘redeem’ himself through the filing of commercial documents. According to the theory, the convict has a split personality: a real person and a fictional person called a “strawman.” The strawman came into being when the United States went off the gold standard in 1933 and pledged its citizens as collateral for its national debt. Proponents of the theory believe that the government only has power over the strawman and not the real person. The real person, however, can “redeem” the fictional person by filing a UCC financing statement. This allows the real person to acquire an interest in the fictional person that trumps the government’s power. Id. (dismissing the plaintiff’s complaint calling it “completely frivolous”). Consistent with the redemption “strawman” theory, sovereign citizen litigants often argue that there is a legally significant distinction when their names are written in all capital letters and when they are written lower case letters. From their pleadings and correspondence, the Simonsons appear to follow these practices. Sovereign citizens often inexplicably claim that when their names are written in all capital letters then that designation refers to their fictional identities (i.e., the “strawman”). Obviously, courts uniformly reject these outlandish claims. See United States v. Mitchell, 405 F. Supp. 2d 602, 604 (D. Md. 2005) (“‘It makes no sense to rest a jurisdictional distinction upon the use of all upper case letters or a mixture of upper and lower case letters. The federal courts abandoned this level of formalism long ago.’”) (quoting United States v. Singleton, 2004 WL 1102322 (N.D. Ill. May 7, 2004) (rejecting defendant’s argument 7

Case 4:11-cr-00224-DW Document 62 Filed 11/14/12 Page 7 of 19

that the capitalization of his name referred to a fictional person linked to a treasury account the government allegedly set up for each citizen in the 1930s and not “a flesh and blood man”)). Sovereign citizen litigants frequently claim that courts have no jurisdiction over them as human beings, but rather the courts only have jurisdiction over their fictional “strawmen” identities. In United States v. Delatorre, 2008 WL 312647 (N.D. Ill. Jan. 30, 2008), District Court Judge Ruben Castillo rejected this ludicrous notion stating: Furthermore, Mr. Delatorre is an actual, bona fide Defendant in this case. This Court’s jurisdiction over Mr. Delatorre remains valid whether his name is written in all capital letters or a mix of capital and lower case letters, or whether he identifies himself as: a “real flesh and blood man, in his private capacity,” a “sovereign secured party creditor;” a debtor; the “authorized representative of the corporate fiction-entity/debtor identified, as Fernando Delatorre,” or “third party intervener on behalf of Defendant’ Debtor Ferdando Delatorre.” Mr. Delatorre’s Uniform Commercial Code (“UCC”), copyright, and trademark filings do not change this fact. The Defendants charged in this case are not fictional creations, but individual citizens of the United States subject to its valid and enforceable laws, Mr. Delatorre is not a “sovereign” outside the jurisdiction of this Court, but an individual “natural or unnatural” - subject to the criminal laws of this country “whether he requested, obtained or exercised any privilege from the federal government.” Id. at *2 (citing United States v. Sloan, 939 F.2d 499, 500-01 (7th Cir. 1991)); United States v. Raymond, 228 F.3d 804, 812 (7th Cir. 2000) (rejecting argument that an individual can be a sovereign citizen of a state who is not subject to the jurisdiction of the United States); United States v. Hilgeford, 7 F.3d 1340, 1342 (7th Cir. 1993)). It is anticipated that defendants will attempt to utilize a similar “strawman” defense in this case. The government’s evidence at trial will be that the Internal Revenue Service sent collection letters to both defendants on January 25, 2010, indicating IRS’s intention to recover the fraudulent monies. In response, on or around February 8, 2010, defendant Joshua Simonson

8

Case 4:11-cr-00224-DW Document 62 Filed 11/14/12 Page 8 of 19

mailed a package to the IRS containing correspondence along with two signed, fictitious checks purportedly drawn on an account at the Federal Reserve Bank in Atlanta, Georgia, both of which contained that institution’s routing number. Defendant Kristen Simonson admitted to investigators that she reviewed the package before it was mailed. The checks were written in the exact amounts owed by the Simonsons for the 2006 and 2007 tax years. One fictitious check was in the amount of $1,005,356.36, which corresponded to Kristen Simonson’s social security number and amount due; and the other check was for $371,933.81 and corresponded to Joshua Simonson’s social security number and amount due. Both were signed by Joshua Simonson. This behavior, coupled with their endorsed purported exhibits, indicates to the government that defendants intend to argue at trial that these checks were valid negotiable instruments that were designed to draw on defendants’ accounts that they will claim were set aside for them by the Department of the Treasury when they were born. Obviously, the United States Treasury has not set aside an account for every United States citizen, including the defendants, and they should not be permitted to argue such baseless conjecture to the jury. During criminal trials, sovereign citizens often invoke, usually out of context, portions of the following legal resources: U.C.C. provisions, admiralty and maritime law, the Federal Rules of Civil Procedure, definitions of legal terms from Black’s Law Dictionary, and other obscure treaties and other legal authorities. The United States moves to prohibit defendants from making similar improper arguments related to inapplicable law. See United States v. Johnson, 610 F.3d 1138, 1140 (9th Cir. 2010) (“[Defendants] were adamant in their desire to represent themselves and assert an absurd legal theory wrapped up in Uniform Commercial Code gibberish. . . . The record clearly shows that the defendants are fools, but that is not the same as being 9

Case 4:11-cr-00224-DW Document 62 Filed 11/14/12 Page 9 of 19

incompetent.”); Mitchell, 405 F. Supp. 2d at 603-04 (stating that defendants’ “arguments are patently without merit. Perhaps they would even be humorous–were the stakes not so high. To begin with the U.C.C. has no bearing on criminal subject matter jurisdiction.”); Black v. Florida, 2009 WL 1605410 (N.D. Fla. June 4, 2009). Based on their pro se arguments advanced thus far, it is also anticipated that defendants may invoke provisions of the Universal Postal Union Convention during his trial. Some sovereign citizens have argued that they cannot be guilty of mail fraud because the United States is a signatory to the Universal Postal Union Convention, a treaty that provides a uniform framework of rules and procedures for the exchange of international mails. This argument is inappropriate because it is not applicable to the case before the Court and could mislead jurors. To establish that defendant Kristen Simonson is guilty of mail fraud, the United States must establish beyond a reasonable doubt that she: (1) voluntarily and intentionally devised or made up a scheme to defraud another out of money, property or property rights by creating and submitting false claims for tax refunds and then receiving back tax refund checks from the United States Treasury; (2) she did so with the intent to defraud; and (3) she used or caused to be used the mail in furtherance of, or in an attempt to carry out, some essential step in the scheme. See Eighth Circuit Model Jury Instructions, Instruction 6.18.1341. The Universal Postal Union Convention has no bearing on what constitutes mail fraud. Accordingly, defendants should be prohibited from making statements or providing evidence related to this international treaty. B.

Rules of Evidence Applicable to Government’s Motion in Limine

Under federal law, the defendants’ anticipated arguments and supporting “evidence” are irrelevant or otherwise inadmissible because they are incorrect characterizations of the applicable 10

Case 4:11-cr-00224-DW Document 62 Filed 11/14/12 Page 10 of 19

law in the case, they constitute hearsay, or their probative value is substantially outweighed by the dangers of unfair prejudice, confusion of the issues, or potential to mislead the jury. “Relevant evidence” is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. FED. R. EVID. 401; see also Old Chief v. United States, 519 U.S. 172, 178 (1997) (quoting Rule 401); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 587, 113 S. Ct. 2786, 2794 (1993) (quoting FED. R. EVID. 401). It is axiomatic that irrelevant evidence is not admissible at trial. FED. R. EVID. 401, 402; see also, Noel Shows, Inc. v. United States, 721 F.2d 327, 320 (11th Cir. 1983) (“If it is not relevant, the evidence is inadmissible under FRE 402, and 403 never comes into play.”). The determination whether evidence is relevant is committed to the broad discretion of the court. United States v. Ahangaran, 998 F.3d 521, 525 (7th Cir. 1993). Like other sovereign citizen defendants, the defendants’ anticipated legal defenses and supporting “evidence” are, at best, misinterpretations of inapplicable law that the defendants steadfastly adhere to by intentionally blinding themselves from reality. At worst, the defendants are using their “evidence” as part of scheme designed to hijack a fair trial and they are endeavoring to mislead jurors and to achieve jury nullification. In either instance, the supporting “evidence” relied on by defendants does not tend to make the existence of any fact of consequence to the determination of action more or less probable than it would otherwise be without the evidence. Even if evidence is relevant, Rule 403 provides that a federal district court may exclude the evidence if its probative value is substantially outweighed by the danger of unfair prejudice, 11

Case 4:11-cr-00224-DW Document 62 Filed 11/14/12 Page 11 of 19

jury confusion or unnecessary delay. FED. R. EVID. 403; see also Old Chief, 519 U.S. at 180. In determining whether the probative value of proffered evidence is substantially outweighed by the danger of unfair prejudice, a court must consider whether the evidence will create “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Old Chief, 519 U.S. at 180 (quoting Advisory Committee Notes to Rule 403); In re Paoli Railroad Yard PCB Litigation, 113 F.3d 444, 452 (3d Cir. 1997) (“In making a Rule 403 determination, the court must balance the genuine need for the challenged evidence against the risk that the information will confuse the jury and delay trial.”); United States v. Herman, 589 F.2d 1191, 1198 (3d Cir. 1978). The matters set forth in defendants’ pleadings and correspondence thus far, and their identified trial exhibits and witnesses are unfairly prejudicial – there is a significant risk that this information would only confuse and mislead the jury and jeopardize the Government’s right to a fair trial. C.

Defendants’ Inadmissible Exhibits Subject to Government’s Motion in Limine

On November 13, 2012, defendants filed a list of proposed trial exhibits (Doc. 61). The government anticipates they intend to rely on these documents, which are completely irrelevant to establishing a legitimate legal defense to the crimes charged. Many also constitute inadmissible hearsay. With the exception of exhibit LL, the exhibits consist of post-indictment correspondence from defendants to the U.S. Attorney’s Office, the Internal Revenue Service, and the Court; purported post-indictment pleadings; copies of warrants, bond documents, and plea negotiation documents; renunciations of signatures; and odd documents such as nonsense “judgments” issued by the defendants themselves. Many or all of these documents are marked with meaningless sovereign citizen stamps proclaiming things such as “conditionally accepted 12

Case 4:11-cr-00224-DW Document 62 Filed 11/14/12 Page 12 of 19

for value” and so forth, with elaborate attestations, disclaimers, notary seals, scribbles, and the like. None have any bearing on the underlying case. Rule 801 of the Federal Rules of Evidence defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” FED. R. EVID. 801(c). “The hearsay rule excludes out-of-court assertions used to prove the truth of the facts asserted in them.” Mueller v. Abdnor, 972 F.2d 931, 937 (8th Cir.1992). Many of defendants’ identified exhibits are written out-of-court statements that were not subject to cross-examination and they were not made under oath. Unless they qualify as an exclusion from or an exception to the hearsay rule, these exhibits are inadmissible hearsay. See FED. R. EVID. 801, 803, 804. All of the 53 proposed trial exhibits identified by defendants, except for LL, are inadmissible. Below is a list of those exhibits on the proposed list.4 Note, the United States objects to many of defendants’ descriptions, but for purposes of this table, the government has parroted and summarized his descriptions. Exhibit #

Title of Document

A

Notice of Conditional Acceptance in re: “Notice of Levy”

B

Notice of Conditional Acceptance in re: “Tax Bill & Notice of Levy”

C

Notice of Dishonor and Opportunity to Cure, for the obligation of the Usufruct Joshua Simonson

D

Affidavit of Restricted Special Appearance re Sentencing Guidelines Analysis from Daniel M. Nelson

E

Rescission of Signature on the Restore America Plan document

4

Defendants have identified their proposed trial exhibits as Exhibits A - AAA. For clarity purposes, the United States has adopted his identifications in this motion in limine. 13

Case 4:11-cr-00224-DW Document 62 Filed 11/14/12 Page 13 of 19

F

Peaceful Request for Forgiveness addressed to Alaina Gimbert, Senior Counsel for the Atlanta Federal Reserve Bank

G

Notice of Dishonor and Opportunity to Cure for the obligation of the Usufruct Kristen Simonson

H

Letter of Intent addressed to Janice Lambert and all Agents and Successors, CFO Internal Revenue Service, related to Joshua Simonson

I

Letter of Intent addressed to Janice Lambert and all Agents and Successors, CFO Internal Revenue Service, related to Kristen Simonson

J

Notice of Default in Dishonor with Consent to Judgement for Usufruct Joshua Simonson

K

Notice of Default in Dishonor with Consent to Judgement for Usufruct Kristen Simonson

L

Constructive Notice of Conditional Acceptance with “Payment” and offset in Full of the Usufructs Joshua M Simonson and Kristen L Smonson/Moody Case No. 11-00224-01/02-CR-W-DW, herinafter “Closed Matter” with Prejudice, (plus numerous court document attachments)

M

Constructive Notice of Conditional Acceptance to Show Cause

N

Notice and Request for Continuance Merely for the Purpose of Completing the Private Administrative Record Currently in Process so as to Settle and Close Case No. 11-00224-01/02-CR-W-DW

O

Notice and Formal Request for the Original, Genuine Charging or Accusatory Instrument for Undersigneds Inspection

P

Notice of Dishonor and Opportunity to Cure

Q

Notice of Default in Dishonor with Consent to Judgment (re “conditionally accepted stipulations” from Daniel M. Nelson)

R

Notice and Conditional Acceptance to Mr Hecke’s Offer to Call in Weekly after Appearance Bonds have been paid in full and the case has been settled

S

Notice and Conditional Acceptance to Mr Hecke’s Offer to Call in Weekly after Appearance Bonds have been paid in full and the case has been settled, and Notice and Conditional Acceptance of Unauthorized Communication from John Osgood

T

Certificate of Non-response/Non-performance pertaining to the obligation to pay the outstanding IRS debt in the name of Usufruct Kristen L Simonson/Moody 14

Case 4:11-cr-00224-DW Document 62 Filed 11/14/12 Page 14 of 19

U

Certificate of Non-response/Non-performance pertaining to the obligation to pay the outstanding IRS debt in the name of Usufruct Joshua Simonson

V

Certificate of Administrative Judgment Certificate of Non-response/Nonperformance pertaining to the obligation to pay the outstanding IRS debt in the name of Usufruct Kristen L Simonson/Moody

W

Certificate of Administrative Judgment of Non-response/Non-performance pertaining to the obligation to pay the outstanding IRS debt in the name of Usufruct Joshua Simonson

X

Judgment in Favor of Usufruct Kristen L Simonson/Moody

Y

Judgment in Favor of Usufruct Joshua Simonson

Z

Certificate of Non-Response/Non-Performance pertaining to the Private Administrative Remedy and Tender of Payment in full of the obligation to pay the charges listed in Case No. 11-00224-01/02-CR-W-DW/Indictment/True Bill

AA

Certificate of Administrative Judgment pertaining to the Private Administrative Remedy and Tender of Payment in full of the obligation to pay the charges listed in Case No. 11-00224-01/02-CR-W-DW/Indictment/True Bill

BB

Judgment in favor of the Usufructs Joshua Simonson and Kristen Simonson

CC

Constructive Notice of Discharge of Any and All Contractual Relations and Obligations between the Parties Applicable to All Agents, Successors and Assigns terminating Steve Simonson as surety on the above mentioned appearance bond for Joshua Simonson

DD

Notice of Recission of signature for Steve Simonson on the above mentioned appearance bond for Joshua Simonson paid in full

EE

Constructive Notice of Discharge of Any and All Contractual Relations and Obligations between the Parties Applicable to All Agents, Successors and Assigns terminating Michael Alan Moody as surety on the above mentioned appearance bond for Kristen Simonson

FF

Notice of Recission of signature for Michael Alan Moody on the above mentioned appearance bond for Kristen Simonson paid in full

GG

Affidavit of Special Appearance in accordance with Judge Maughmer’s invitation to inspect Original Genuine Charging Instrument/Indictment/True Bill

HH

Notice of Acceptance as Tender of Payment to Pay the Obligation/Indictment addressed to the Clerk of Court 15

Case 4:11-cr-00224-DW Document 62 Filed 11/14/12 Page 15 of 19

II

Definition of “Fund”

JJ

Definition of “Statute”

KK

Copies of the Book of Matthew 5:25 & Matthew 18: 15-20

LL

Copies of 1040X amended tax filings for the Usufructs Joshua Simonson year 2007, and Kristen Simonson year 2006 and 2007

MM

27 CFR 72.11

NN

Definition of “cash” as defined in the Official comments of the UCC

OO

Definition of “money”

PP

Definition of “remedy”

QQ

Definition of “right”

RR

Definition of “acceptance” as it pertains to 12 USC 412

SS

Definition of “draft” as it pertains to 12 USC 412

TT

Administrative Procedures Act, 5 USC 552

UU

Section 19, Restatement Second of Contracts, as it pertains to “manifestation of ascent”

VV

Definition of “person” as defined in the Uniform Commercial Code

WW

Definition of “usufruct” as defined in “Black’s Law”

XX

Definition of “United States” 28 USC

YY

Definition of “forgiveness”

ZZ

Copies of UCC 3 filings dated 9 November 2012

AAA

Copies of requests for Certificates of Release of IRS Lien

The following documents were generated by the defendants after the indictment was issued and have no bearing on or relevance to the case at bar: A through HH, and ZZ through AAA. The following exhibits indicate to the government that defendants desire to make inappropriate sovereign citizen type arguments at trial: II through KK; and MM through YY. With the lone exception of exhibit LL, none of the above proposed exhibits are relevant and 16

Case 4:11-cr-00224-DW Document 62 Filed 11/14/12 Page 16 of 19

admissible concerning any permissible legal defense or argument the Simonsons could raise to rebut the charges related to tax fraud, mail fraud, money laundering and fictitious checks in the Grand Jury’s indictment. All would be misleading to the jury. As such, these exhibits should be struck by the Court. D.

Improper Witnesses

As with the improper exhibits, the government requests that the Court prevent the defendants calling the following witnesses identified in their witness list: Western District of Missouri Court Clerk Ann Thompson; U.S. Magistrate Judge John T. Maughmer; Pre-trial Officer Emil “Van” Hecke, U.S. Treasury Secretary Timothy Geithner, or IRS CFO Janice Lambert. None of these persons are appropriate witnesses for the defense here, as none have personal knowledge of the conduct underlying the filing of the Simonsons’ fraudulent tax returns, mail fraud, money laundering or their presentment of fictitious checks purportedly drawn on the Federal Reserve Bank, that are at issue in this case. The defendants also list case AUSA Daniel Nelson as an intended witness. Requests for such testimony are disfavored, and “the party seeking such testimony must demonstrate that the evidence is vital to his case, and that his inability to present the same or similar facts from another source creates a compelling need for the testimony.” United States v. Watson, 952 F.2d 982, 986 (8th Cir. 1991). They have made no such showing. Further, because AUSA Nelson has no personal knowledge of facts relevant to the defendants’ case, they cannot demonstrate a compelling need for Mr. Nelson’s testimony. See United States v. Ziesman, 409 F.3d 941, 951 (8th Cir. 2005).

17

Case 4:11-cr-00224-DW Document 62 Filed 11/14/12 Page 17 of 19

Regarding the other witnesses listed by the defendants, the government already intends to call IRS-CI SA Kenneth Klingenberg, IRS-Tigta SA Phillip Nicotra, and IRS employee Thomas Wroble, so these persons will be available for cross examination. If the defendants have a basis to recall them for further direct examination they can request the Court to hold them over. The government has no objection if the defendants wish to call notary Dallas Moody or witness Chris Sadowski. Both may have some personal knowledge of relevant conduct underlying the charges. However, if the defendants wish to compel the appearance of Mr. Sadowski or Mr. Moody, then they should request trial subpoenas from the Court as the government does not intend to call those persons for its case-in-chief. For the aforementioned reasons, the United States respectfully requests that its motion in limine be granted. Respectfully submitted, David M. Ketchmark Acting United States Attorney By

/s/ Daniel M. Nelson Daniel M. Nelson Assistant United States Attorney /s/ Roseann Ketchmark Roseann Ketchmark Assistant United States Attorney Charles Evans Whittaker Courthouse 400 East Ninth Street, Room 5510 Kansas City, Missouri 64106 Telephone: (816) 426-3122

18

Case 4:11-cr-00224-DW Document 62 Filed 11/14/12 Page 18 of 19

CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing was delivered on November 14, 2012, to the CM-ECF system of the United States District Court for the Western District of Missouri, and a copy of the foregoing was mailed to: Joshua Simonson 3131 Morton Great Bend, KS 67530 Kristen Simonson 3131 Morton Great Bend, KS 67530 /s/ Daniel M. Nelson Daniel M. Nelson Assistant United States Attorney

19

Case 4:11-cr-00224-DW Document 62 Filed 11/14/12 Page 19 of 19