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ANTHONY P. CAPOZZI, CSBN O68525LAW OFFICES OF ANTHONY P. CAPOZZI1233 W. Shaw Avenue, Suite 102Fresno, CA 93711Telephone: ( 559) 221-0200Fax ( 559) 221-7997E-mail: Capozzilaw@aol.com

Attorney for Defendant,MICHAEL S. IOANE

IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, Plaintiff,

v.

MICHEAL S. IOANE,

Defendant.

Case No. 1:09CR00142 LJO

Defendant=s Motion to Dismiss for Selective Prosecution and for discovery

Date:Time:Dept:

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

protected First Amendment and political activity, and that the prosecution holds personal

animosity toward this defendant. This includes protected due process issues guaranteed by the

United States Constitution.

SELECTIVE PROSECUTION

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

HAMMOND DIV, 1991) Allen Sharp, Chief United States District Judge. The opinion of the

court was delivered by: SHARPMEMORANDUM OPINION AND ORDER ALLEN SHARP,

CHIEF UNITED STATES DISTRICT JUDGE I. Synopsis of the Law of Selective Prosecution *fn1”

[1] In our criminal justice system, the government retains broad discretion of whom to

prosecute. United States v. Goodwin, 457 U.S. 368, 380 n. 11, 73 L. Ed. 2d 74, 102 S. Ct. 2485

(1982). So long as the prosecutor has probable cause to believe that the accused committed an

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

enforcement of criminal laws is subject to constitutional constraints. United States v. Batchelder,

442 U.S. 114, 125, 60 L. Ed. 2d 755, 99 S. Ct. 2198 (1979). In particular, the decision to prosecute

may not be deliberately based upon an unjustifiable standard such as race, religion or other

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

defendant, but the prosecutor's choice to proceed against the defendant while declining to bring

similar criminal charges against others who appear equally culpable. In effect, a defendant's

selective prosecution challenge asks of the prosecutor, "Why have you singled me out?"

[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

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(1962), which prohibit a state from taking action which would "deny to any person within its

jurisdiction the equal protection of the laws." This guarantee, which applies with respect to the

enactment of laws by the legislative branches, also extends to the conduct of the executive

branches in the enforcement of these laws. In the oft-quoted language of Yick Wo v. Hopkins,

118 U.S. 356, 30 L. Ed. 220, 6 S. Ct. 1064 (1886):

“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

unjust and illegal discriminations between persons in similar circumstances, material to their

rights, the denial of equal justice is still within the prohibition of the Constitution.”

[6] A claim of selective prosecution is not likely to succeed, for courts "have found only a

handful of equal protection violations" *fn3” arising out of the charging decisions of prosecutors.

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

prosecution claim: (1) that other violators similarly situated are generally not prosecuted; (2) that

the selection of the defendant was intentional or purposeful; and (3) that the selection was

pursuant to an arbitrary classification. (Each element is later discussed in greater detail.)

[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

declared there is no equal protection violation unless the selection was deliberately based upon

an unjustifiable standard. There are effectively three impermissible bases for prosecutorial

selectivity, that is, three factors that may not motivate a prosecutor to proceed against a particular

defendant: (1) race, religion, or other suspect classification; (2) a desire to impede the exercise of

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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, the Supreme Court emphasized that the conscious exercise of some selectivity in

enforcement is not in itself a federal constitutional violation. To prevail on an equal protection

claim, a defendant must show that he was selected pursuant to an arbitrary classification, such as

race or religion. It is 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: race, national origin, gender, political activity or membership in a

political party, union activity or membership in a labor union, or more generally the exercise of

first amendment rights.

“Prosecutors have wide discretion in deciding whether or not to prosecute and what

charge to file or bring before a grand jury.” United States v. Pitts, 908 F.2d 458, 460 (9th Cir.

1990). This 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 United States v. Benny, 786 F.2d 1410, 1418 (9th Cir.), cert. denied, 479 U.S. 1017 (1986);

United States v. Christopher, 700 F.2d 1253, 1258 (9th Cir. 1983), cert. denied, 461 U.S. 960

(1983). This standard was chosen because “selective prosecution, more than vindictive

prosecution, lends itself to the fact-finding standard.” United States v. Wilson, 639 F.2d 500,

503 n.2 (9th Cir. 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 reviewed under the clearly erroneous standard.”).

The district court’s denial of discovery relating to a selective prosecution claim is

reviewed for an abuse of discretion. United States v. Bourgeois, 964 F.2d 935, 937 (9th Cir.

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1992) (resolving prior conflict between abuse of discretion standard and clearly erroneous

standard).

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

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

documented by Grand Jury Transcripts, Affidavits in Support of Search Warrants, Police

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Reports, Jail booking reports including:

(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

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Ioane “for a non-tax crime”. A copy of this pertinent part of the ICS History

Transcript is attached as Exhibit 1. The same record discloses this agent’s

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 defendant’s due

process rights concerning the above referenced civil cases. The reason being

retaliatory because he was able to prove that plaintiff’s 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 defendant’s due process and

other related constitutional guarantees and ability to conduct a meaningful

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execution of his prosecution against the United States and its agents. This is

an inclusion inseparable from mere right of self-representation.

(n) Mr. Cullers claims that his office is not involved in any of defendant’s 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

25.1.5.3  (01-15-2010) This critical information provides the REASON WHY

the government has interfered with defendant’s 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

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being spread far and wide has caused plaintiff and those associated with

plaintiff concern and political 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. Booth’s 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 defendant’s knowledge has either one

of these agencies responded to Mr. Reedy’s 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. Reedy’s 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. Booth’s 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. Booth’s business structure,

and that Acacia or First Amendment Publishers only acts as a registered

agent, record keeper and manager for Mr. Reedy’s 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. Reedy’s 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

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this Court’s 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. Booth’s plea agreement and the tenor of the emails

sent by Mr. Reedy on Dr. Booth’s behalf, it appears to defendant Ioane that

Dr. Booth and his attorney, along with attorney Eric Fogderud, Dr. Booth’s

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 Attorney’s 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

was continually informed that he was involved in money laundering, tax evasion, aiding and

abetting, and conspiracy with defendant Booth and the trustees named below. The IRS

acknowledged that he was part of various real estate deals involving the plaintiffs allegations of

using illegal entities,( i.e. Southern Financial Services, Bakersfield Properties, 21st Century

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

LLC and Mariposa Holding Inc), for tax evasion purposes. Real Estate Developer Bob Bell

shares an office with defendant Booth and they speak daily. Ioane has spoken with and worked

directly with Real Estate Developer Bob Bell and his Attorneys going back as far as 2002. Many

of the discussions involved the content of the IRS interviews and allegations. Plaintiff never

brought 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 indictment. Real Estate Developer Bob Bell is one of defendant Booth’s very close friends

and knew of Mr. Booth’s dealings for a very long time, Ioane has firsthand knowledge that Real

Estate Developer Bob Bell actually received over 500k in cash and over 1 million in real estate

Deeds from Southern Financial Services, trust, (alleged to be one of those illegal entities of

Booth). Ioane 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, did have several conversations with Attorney John Reedy who coordinated

the transaction.

2. Attorney Michael Mears; worked for Bob Bell and also worked with Attorney John Reedy,

since about 2002 or sooner regarding the Treble LLC investment and real estate development,

which involved Southern Financial Services, Bakersfield Properties and Trust Company, and

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 deal was legal and Steven Booth was doing no wrong. Michael Mears spoke with the

AUSA office and IRS continually and then he assured everyone that no illegal tax crimes or

otherwise had or were occurring, nothing to worry about.

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3. Attorney Steve Dakes of Dake-Braun-Monje; these folks reviewed the trusts and never

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

and contracted work for the various entities alleged by the plaintiff to be illegally formed for tax

evasion purposes, Attorney Steven Dake was one of the Attorneys representing the above

referenced trusts subject of the indictment. In fact their names, (Attorney Steve Dake and his

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 CPA’s and Bookkeepers as instructed and proceeded to coordinate the administrative

work asked of him by Attorney Steve Dake. A Mr. Finch, CPA, was contacted by Ioane, who

according to CID investigative report was and is a confidential informant, for IRS. Mr. Finch

apparently was interviewed and gave statements regarding Attorney Steve Dake and what he

believed to be illicit activity on the part of the law office, (this is available in the government’s

initial discovery to 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 illegal tax evasion purposes. Attorney Steve Dake, was so

confident that no illegal activity had or was taking place regarding these trusts, Booth or Ioane,

that he tendered an offer to purchase one of three pieces of real property owned by Bakersfield

Properties and trust company. That offer was not accepted; but later Acacia Corporate

Management, LLC purchased the real property from Bakersfield Properties and Trust Company,

for valuable consideration. The government alleged that this purchase was somehow illegal and

that defendant Booth was the alter ego of Acacia Corporate Management LLC., which was

proven to be factually incorrect; (pre-indictment), however, Acacia Corporate Management, LLC

has been forced to file suit against the IRS because they never the less filed a nominee lien on the

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subject property, see case number 1:07-CV-1129 AWI

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

2005. Ioane is informed and believes that Mr. Baker has been indicted and pleads; but not

regarding the Booth matter regarding the bookkeeping involving all trusts and the tax

preparation. Ioane was personally involved hearing statements from Mr. Baker that the taxes and

accounting 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 should be applied to what tax returns, involving all entities directly or indirectly

related to Booth.

5. Certified Public Accountant Clark Hurst of Bakersfield; who stated to Ioane that Mr.

Booth has employed his services since 2005 and is currently using the services of Mr. Hurst.

Ioane has heard Mr. Hurst state that nothing was wrong with how Mr. Booth operated his

business using 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 defendant Steven Booth tax returns, worked on tax returns for Bakersfield

Properties and Trust Company, Southern Financial Services, 21 Century Trust, Aligned

Enterprises and Alpha Omega not excluding the medical corporations.

6. Attorney Michael Kia; wrote letters to the IRS setting up appointments for defendant Booth.

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

Booths IRS disputes in detail with Ioane. Attorney Michael Kia was directly involved in each of

the entities that the government claims were used for illegal tax evasion and Attorney Michael

Kia spoke on many occasions with IRS agent Fred Chynoweth and Michael Hoos, in an attempt

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to resolve the IRS disputes that had been pending since at least 2002.

IRS received numerous letters from Attorney Michael Kia and know that he was directly

involved in each allegation alleged in the indictment.

7. Attorney John Reedy, defendant Steven Booth’s general counsel and corporate attorney,

created and managed the Booth Corporations and trusts, wrote letters to the IRS and Inspector

general regarding the allegations in the current indictment several years prior to any indictment

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

IRS office and the AUSA regarding the alleged illegally created entities and even wrote

communications indicating that he created and managed those entities.

8. In 2006, defendant Steve Booth hired Attorney Mark Lane and Mr. Lane contacted AUSA

office after Steve’s home was raided in March of 2006. Ioane recalls that he informed the IRS

that the raid had no merit and that his client’s rights were being violated. Ioane worked with Mr.

Lane and he informed Ioane that Mr. Booth didn’t violate any laws. Ioane further recalls that Mr.

Lane actively tried to resolve the problem with the IRS with Ioane’s assistance, sending letters of

communication to AUSA Verna Santos and having phone calls with her.

9. Then we have all the trustees who First amendment Publishers and Acacia Corporate

Management, LLC, ( entities that Ioane is employed by), worked for as the administrator of the

trusts, following their instructions and the accountants making sure that they all followed the

terms of the trust. Doctor Thomas Rios, (who plead guilty to tax evasion, unrelated to Booth

entities and 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 trustees and knew they were trustees and that they hired the administrator. Ioane was

informed by them and believes that each and every one of them was threatened by IRS with

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prosecution if they did not say exactly what the IRS wanted them to say. Ioane is further

informed and believes that each was interviewed several times, but never were they indicted;

although these were the parties signing and authorizing all activity involving the Aligned

Enterprises trust and Alpha Omega trust, in addition to the other trusts.

9. Attorney Eric Fogderude, is more than directly involved since he worked with defendant

Steven Booth regarding a civil contempt matter, (specifically related to each and every allegation

of the indictment, in 2005. The matter was held before the Honorable Judge Wagner, at the US

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

trust and Aligned Trust. Eric Fogderude was in continual contact with IRS attempting to resolve

the issue that Booth had regarding the IRS. The exact same allegations that were being made or

inferred during the contempt proceeding is now part of the indictment. Mr. Ioane continually

consulted with Mr. Fogderude as administrator/consultant for both defendants Booth and his

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

communicated with each and every one of the above mentioned un-indicted individuals, and that

this defendant’s claim has nothing in common with “class” or “similarly situated” or “similar

circumstance” irrelevant to and beyond or above those that are directly involved with the

indictment and/or the allegations raised in the indictment and government theory of the case. The

government’s theory simply would not exist if it had not been for the above actors. But none of

them have been indicted for those alleged criminal acts. The question then is why was Ioane

invidiously selected from the pool of actors, especially those actors who were licensed Attorneys

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and accountants, whom Ioane relied on.

POINTS AND AUTHORITIES

UNINDICTED OTHERS DIRECTLY INVOLVED THAT

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-

indicted others are persons are more than just similar situated or there are more than just similar

circumstances since they were directly involved requiring that they must receive similar

treatment under the law, United States v. Armstrong, 517 U.S. 456, 116 S. Ct. 1480, 134 L. Ed.

2d 687 [1996], quoting YICK WO V. HOPKINS , 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 [1886]).

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 arbitrary classification" (United States v. Armstrong, quoting Oyler v. Boles, 368 U.S. 448,

82 S. Ct. 501, 7 L. Ed. 2d 446 [1962]).

Selective prosecution is a violation of the constitutional guarantee of equal protection for

all persons under the law. On the federal level, the requirement of equal protection is contained

in 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 treatment under the law.

All of these above-named individuals were directly involved and similarly situated in one 17

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way or another regarding the very same transactions plaintiff complains about regarding only

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

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

prosecutorial discretion in this case is irrelevant since it involves other named individuals that

were or are directly involved with the indictment. Further the prosecution is either estopped or

prohibited from violating the equal protection doctrine having failed to indict others that were

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

Ioane demands that the indictment be dismissed with prejudice so that he can be treated equally

under the law to those named above that are more than similarly situated.

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 and Booth are the only parties from the list of above actors, that brought and as of

today maintained civil actions against the United States for constitutional violations they have

suffered from the IRS over these matters, not excluding the very illegally executed search

warrants and Michael Ioane is the co-author and publisher of the Boston Tea Party Book and one

of the founders 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

Accused’s “profile” because he has exercised certain expressions and prosecuted actions

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protected by the law, and First, Fourth, and Fifth Amendments. Regardless of whether or not

these allegations are true, they form an invidious discriminatory animus creating a personal

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

constitutional guarantees, and protections afforded to him by law.

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

co-conspirators; defendant Ioane also believes he has been selected for prosecution motivated by

the Accused’s 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

documentation to establish that the Accused has been selected for prosecution when thousands

similarly situated were not. The above noted subpoenas are immediately needful, *fn6” and

necessary to the hearing of a pre-trial motion to dismiss for selective prosecution and to preserve

the issue of selective prosecution for appeal.

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

litigations, complaints, letters, and political activities that are protected matters involving speech,

being secure in his house, papers and effects, and due process.

"it is . . . well settled that where legal rights have been invaded, and a federal statute (law

or rule) provides for a general right to sue (or file motions) for such invasion, federal courts may

use 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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CONCLUSION

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

issue subpoenas or dismiss the indictment with prejudice.

Dated: Respectfully submitted,

/s/ Anthony P. Capozzi,Attoreny for Defendant

*fn1 See generally Wayte v. United States, 470 U.S. 598, 84 L. Ed. 2d 547, 105 S. Ct. 1524 (1985).

 *fn2 Although the fifth amendment, unlike the fourteenth, does not contain an equal protection clause, it does contain an equal protection component. Bolling v. Sharpe, 347 U.S. 497, 499, 98 L. Ed. 884, 74 S. Ct. 693 (1954).

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

*fn5 C.A.4 (N.C.) 1988: To establish selective prosecution, defendant must show that Government was motivated by discriminatory purpose with resulting discriminatory effect, establishing not only that he has been singled out while others similarly situated have not been prosecuted, but also that decision to prosecute was based on impermissible considerations. U.S. v. Richardson, 856, F.2d 644.

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

D.Mass. 1995. Defendant may overcome threshold presumption in favor of regularity of prosecutors’ decision to indict by making prima facie demonstration of intentional and purposeful discrimination; to show intentional and purposeful discrimination, defendant must establish that while others similarly situated have not generally been proceeded against because of conduct of type forming basis of charge against him, he has been singled out for prosecution

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and that governments’ discriminatory selection of him for prosecution has been invidious or in bad faith, 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.

N.D.Ind. 1991. Although prosecutorial discretion is broad, it is not unfettered; selectivity in enforcement of criminal laws is subject to constitutional restraints; in particular, decision to prosecute may not be deliberately based upon unjustifiable standards such as race, religion, or other arbitrary classification, including exercise of constitutional rights.Claim of selective prosecution attacks not merits of prosecutors case against defendant, butProsecutors’ 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 protectionstandards which prohibit state from taking action which would deny to any person within itsjurisdiction equal protection of laws, as equal protection guarantee applies both to enactment oflaws by legislative branch and conduct of executive branch in enforcement of laws. U.S.C.A.Const.Amends. 5, 14There are three impermissible bases for prosecutorial selectivity, that is, three factors thatmay not motivate prosecutor to proceed against particular defendant: race, religion or othersuspect 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 tobring pretrial motion alleging selective prosecution results in waiver. Fed.Rules Cr.Proc.Rule12, 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.

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