From: Keith Henson <hkhenson@netcom.com>
Subject: IRS case News . . . .
Date: 1999/05/28
Message-ID: <hkhensonFCG9x1.12z@netcom.com>
Sender: hkhenson@netcom4.netcom.com
Organization: Netcom
Newsgroups: misc.legal
[ Article reposted from alt.religion.scientology ]
[ Author was Keith Henson <hkhenson@netcom.com> ]
[ Posted on Thu, 27 May 1999 23:48:29 GMT ]
I got word today that Moxon called Tom Carlucci. Scientology may seek
to intervene in this case--which is technically in default. The next
real action is the Case Management conference June 3--next week.
Never a dull moment! :-) Keith Henson
PS, bet *this* sets off the sporgeries!
H. Keith Henson
P.O. Box 60012
Palo Alto, CA 94306
(650) 423-4040 (pager)
(650) 325-7533
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
) Case No. C-98-21290JW
H. KEITH HENSON, an individual, )
)
Plaintiff, ) DECLARATION OF
) H. KEITH HENSON
V. ) IN SUPPORT OF
) REQUST FOR DEFAULT
) ENTRY AND ENTRY OF
INTERNAL REVENUE SERVICE, ) DEFAULT
Does 1-36, )
Defendants. )
_________________________________)
I, H. Keith Henson, declare as follows:
1. I am over the age of 18 years and a resident of
Santa Clara County. I have knowledge pertaining to the instant
action and, if called upon to be a witness, I could and would
competently testify thereto.
2. The instant suit was filed December 31, 1998. A
First Amended Complaint was filed March 22, 1999 and personally
served by hand delivery that day upon the United States Attorney
in San Jose, California. I obtained a signed acknowledgment of
service which I filed with the court that same day. Mark St.
Angelo (Mark.St.Angelo3@usdoj.gov) served as the agent of the
United States Attorney's Office who received service of process
on behalf of the United States Attorney, pursuant to Fed. R.
Civ. P. 4(i)(1)(A). Mr. St. Angelo provided me a business card
which (after some trouble) permitted us to establish e-mail
communications by the next day (March 23, 1999). On advice of
Mr. St. Angelo, I mailed copies of the First Amended Complaint
and exhibits to the Internal Revenue Service (IRS) and to Janet
Reno at the Justice Department.
3. On Monday, April 5, 1999, Mr. St. Angelo informed
me that the case had been assigned to one of the attorneys in
the San Francisco office's Tax Division. By April 13, 1999 Mr.
Thomas Carlucci (Thomas.Carlucci@usdoj.gov) had established
e-mail and telephone communications with me (plaintiff).
4. On or about April 20, 1999 I faxed a copy of the
complaint to David Gustafson at the Justice Department who had
requested the complaint after a contact initiated by me.
5. On or about April 28, 1999 Mr. Carlucci and I
agreed to continue the case management conference originally set
for May 6, 1999 to June 3, 1999. On the first page of the
stipulation (Exhibit A) the due date for the IRS to answer is
correctly set out as May 21, 1999.
6. Rule 10 reads in part:
"(3) The United States or an officer or agency thereof shall
serve an answer to the complaint or to a cross-claim, or a
reply to a counterclaim, within 60 days after the service upon
the United States attorney of the pleading in which the claim
is asserted."
Rule 6 reads in part:
"(a) Computation.
In computing any period of time prescribed or allowed by these
rules, by the local rules of any district court, by order of
court, or by any applicable statute, the day of the act,
event, or default from which the designated period of time
begins to run shall not be included. The last day of the
period so computed shall be included, unless it is a Saturday,
a Sunday, or a legal holiday, or, when the act to be done is
the filing of a paper in court, a day on which weather or
other conditions have made the office of the clerk of the
district court inaccessible, in which event the period runs
until the end of the next day which is not one of the
aforementioned days."
March 23, 1999 would be day one, and by counting,
Friday, May 21, 1999 is day 60.
7. As the answer date got closer and there was no
response from the IRS, I discussed the possibility of the IRS's
defaulting the case with Mr. Carlucci several times on the phone
and in email. The following was sent by e-mail.
"Date: Mon, 17 May 1999 14:32:52 -0700 (PDT)
From: Keith Henson <hkhenson@netcom.com>
Subject: IRS?
To: Thomas Carlucci <Thomas.Carlucci@usdoj.gov>
In-Reply-To: <3714BFDE.DF5F.44C4.000@MHS>
Message-ID: <Pine.3.89.9905171433.A4497-0100000@netcom4>
MIME-Version: 1.0
Content-Type: TEXT/PLAIN; charset=US-ASCII
Just wondering, has the IRS contacted you yet?
Of they don't I will not be too surprised. There were very few
copies of the '93 agreement made, so there is a fair chance
the 'leaking' of that agreement to the WSJ was done by someone
very high in the IRS who wants the IRS out of the deal. And
what way could be better than for a court to order them?"
8. In talking to Mr. Carlucci on (I believe--phone
records can be produced) May 20, 1999, he indicated that the
IRS had finally given him instructions a day or two before the
answer date and that the Government would be filing a motion
response (not an answer) attacking my standing to bring this
issue before the courts. ("Attacking" is used only in the
technical sense. Mr. Carlucci and I have been on the most
cordial of terms throughout.) An unanswered question we
discussed at that time was that if I don't have standing to
bring what is (in my opinion) a matter of unconstitutional
usurping of Judicial power by the Executive branch, how could
such actions ever be reviewed by the Courts?
9. I expected to receive a copy of the IRS's motion
late May 21, 1999 by e-mail, but instead found a note from Mr.
Carlucci saying he had been unable to complete the work and,
on recomputation, thought he had until Monday, May 24, 1999 to
complete and file the motion response.
10. I believe: (1) Mr. Carlucci got the date right
the first time; and (2) the courts would not accommodate me
(as plaintiff) if I filed late.
11. I consider Mr. Carlucci blameless in this matter
because the IRS (which may be ambivalent about the matter)
provided instructions too close to the answer date. However,
in the interest of fair and equal treatment before the law, I
felt obligated to produce this declaration and the
accompanying request for entry of default and entry of
default.
I declare under penalty of perjury under the laws of
the United States that the foregoing is true and correct to
the best of my knowledge.
Executed this 22nd day of May, 1999, at Palo Alto,
California.
H. Keith Henson
H. Keith Henson
P.O. Box 60012
Palo Alto, CA 94306
(650) 423-4040 (pager)
(650) 325-7533
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
) Case No. C-98-21290JW
H. KEITH HENSON, an individual, )
)
Plaintiff, ) REQUEST FOR ENTRY OF
) DEFAULT PER F.R.C.P
V. ) RULE 55(a)
)
INTERNAL REVENUE SERVICE, )
Does 1-36, )
Defendants. )
_________________________________)
To the Clerk of the Court:
Plaintiff, H. Keith Henson, hereby requests that the
Clerk enter the default of the defendant Internal Revenue
Service pursuant to F.R.P.C. Rule 55 (a) upon the grounds
appearing in the attached declaration of plaintiff, H. Keith
Henson.
Respectfully submitted,
Dated: May 24, 1999 H. Keith Henson
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
) Case No. C-98-21290JW
H. KEITH HENSON, an individual, )
)
Plaintiff, ) ENTRY OF DEFAULT UNDER
) F.R.C.P. RULE 55 (a)
V. )
)
INTERNAL REVENUE SERVICE, )
Does 1-36, )
Defendants. )
_________________________________)
Plaintiff having requested entry of default under
F.R.P.C. Rule 55 (a) which reads,
"When a party against whom a judgment for affirmative relief
is sought has failed to plead or otherwise defend as provided
by these rules and that fact is made to appear by affidavit
or otherwise, the clerk shall enter the party's default."
AND having examined the attached declaration of H. Keith
Henson and the exhibits attached thereto and good cause
appearing:
Default is hereby entered.
Dated: May 24, 1999 ______________________
RICHARD W. WIEKING
CLERK, U.S. DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE