UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINAION

MARCUS PATRIOT,                               )                  3:08MC000
         Petitioner,                                         )
                                                                 )               OBJECTION TO THE 
                                                                 )               MAGISTRATE'S REPORT                  
THE UNITED STATES; BANK OF        );                                           )
            Respondents,                                )

Petitioner Marcus Patriot hereby files this Objection to The Report of the Magistrate dated 03-03-2009.  Based on the following grounds.

1. The United States Supreme Court ruled in United States v. LaSalle National Bank, 437 U.S. 298 (1978), “…No civil summons can be used in criminal case.  A criminal case must have formal recommendation and the IRS agent says there is no formal recommendation.  The summons must be issued before the Service recommends to the Department of Justice that a criminal prosecution, which reasonably would relate to the subject matter of the summons, be undertaken.”

2. Part 2 of the LaSalle case says that the IRS cannot be sneaky and attempt to withhold the Formal Recommendation in order to fool the court.  They cannot make an intellectual commitment to prosecute then use the civil summons in a criminal case. They cannot circumvent the traditional function of the Grand Jury, but that is exactly what they are trying to do in this case.

3. The IRS has made an institutional commitment to prosecute all classified by the IRS as “non-filers” such as Marcus Seay. Also, the IRS only uses the 7609 Summons in cases where they have made a decision to prosecute. This is well known. See United States v. Genser, 582 F.2d 292 (1978), “… the IRS, in issuing administrative summonses under § 7602, may not act outside its statutory authority by garnering evidence in furtherance of a solely criminal investigation. If a court determines in the context of enforcement proceedings that a summons was illegally issued, it will deny enforcement of the summons. 400 U.S. at 533, 91 S.Ct. 534. That summons is no less illegal merely because it escapes detection at the investigatory stage. The prophylactic principles which operate at the enforcement level are equally appropriate to the trial stage, and suppression is the only practical remedy at that point to cure the statutory abuse.”

and

“In sum, although § 7602 does not expressly restrict the power to issue a summons there under as long as the purpose is to ascertain the correctness of any return and the material sought is relevant to such inquiry, LaSalle, Donaldson, Friedman, and the other cited decisions have promulgated a judicial policy, binding on the IRS, to protect a taxpayer from any attempt on the part of the IRS to obtain evidence by use of § 7602 summonses after the IRS recommends prosecution to the Department of Justice or after the IRS has abandoned, in an institutional sense, the pursuit of civil tax determination or collection. The only effective remedy for violation of that policy is to require suppression of the evidence obtained as the evidentiary fruits of an illegal summons.

4. Petitioner Seay has no objection to a court order allowing access to his bank records if the court order limits their use to a civil investigation. See United States v. Genser, 602 F.2d 69 (3rd Cir. 1979), “During the course of most investigations where significant amounts of civil liability are involved the IRS agents conducting and reviewing the inquiry will recognize that a recommendation for criminal prosecution might eventually be forthcoming. Nevertheless, a valid summons still may be issued under § 7602 so long as the IRS uses that summons to pursue civil penalties and interest.


CERTIFICATE OF SERVICE

I hereby certify that on or about this date, I mailed properly a copy of this pleading to all parties at their proper addresses(es), postage pre-paid.
Date: March 12, 2009

                                           ________________________________________
&                                                Marcus Patriot              Petitioner, pro se
                                                Gastonia NC 28054