F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 9 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 97-5047
v. (D.C. No. 94-CR-66-B)
(Northern District of Oklahoma)
RALPH E. BAILEY,
Defendant-Appellant.
ORDER AND JUDGMENT*
Before PORFILIO, TACHA, and KELLY, Circuit Judges.
For filing false “UCC liens” against employees of the Internal Revenue Service,
the district court sentenced Ralph E. Bailey to five years of probation conditioned upon
his not committing any federal, state or municipal offenses during that time. Upon
discovering Mr. Bailey failed to file tax returns for 1994 and 1995, a federal
misdemeanor, the United States Probation Office petitioned to revoke Mr. Bailey’s
probation. After an evidentiary hearing, the district court found by a preponderance of
the evidence Mr. Bailey violated 26 U.S.C. § 7203 for wilfully failing to file federal
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
income tax returns for tax years 1994 and 1995. Consequently, the court revoked Mr.
Bailey’s probation and ordered him incarcerated for one month followed by a twelve-
month term of supervised release, and reimposed a $1,325 fine that had not been paid.
Mr. Bailey appeals this order claiming, we decipher, the indictment should have been
dismissed for lack of territorial jurisdiction and, under United States v. Lopez, 514 U.S.
549 (1995), the law upon which it was based, sections of the Internal Revenue Code, is
unconstitutional. These two and other inscrutable issues raised are without merit, and we
affirm.
Under 18 U.S.C. § 3231, “[t]he district courts of the United States shall have
original jurisdiction ... of all offenses against the laws of the United States.” Coupled
with Article I, Section 8, of the Constitution and the Sixteenth Amendment, these
codifications surely embrace the statute forming the basis of Mr. Bailey’s probation
revocation. See United States v. Collins, 920 F.2d 619, 629 (10th Cir. 1990). Not only
does Mr. Bailey offer no authority for his “territorial jurisdiction” argument but also its
weary refrain has been silenced by numerous courts suffering the same din. Id.
Secondly, in contrast to the Gun-Free School Zone Act which the Court found in
Lopez exceeded Congress’ Commerce Clause authority,1 none of the sources authorizing
the collection of income taxes, Article I, Section 2, Clause 3; Article I, Section 8, Clause
Contrary to Mr. Bailey’s assertion, Lopez did not question whether “Congress’
1
commerce authority is Constitutional.” United States v. Lopez, 514 U.S. 549 (1995).
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1; and Article I, Section 9, Clause 4, of the Constitution restrict the Congress’ power to
tax only income derived from interstate commerce. The Sixteenth Amendment removes
certain restrictions on Congress’ taxing power found in Article I, Section 2, Clause 3, and
Article I, Section 9, Clause 4, addressing the need for apportionment among the states.
Congress may impose taxes on individuals in the states “without apportionment among
the several States, and without regard to any census or enumeration” and “on income,
from whatever source derived.” (emphasis added). This last clause governs the sources
from which the income tax may be assessed while “among the several states” only
clarifies that Congress does not need to apportion such tax among the states based on
their number or any census or enumeration. See Peck v. Lowe, 247 U.S. 165 (1918).
Thus, it is not a restrictive grant permitting the tax to be imposed only where the
individual received income from interstate commerce but is a broad grant of power to tax
income from whatever source derived, including income from wholly intrastate actions or
property. Mr. Bailey’s additional arguments §§ 7202 and 7212(a) “are not commercial in
nature and cannot be regulated under the Commerce Clause” are tautological
constructions incapable of rational resolution.
AFFIRMED.
ENTERED FOR THE COURT
John C. Porfilio
Circuit Judge
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