DEFENDANTS' RESPONSE TO PLAINTIFF'S
MOTION FOR COURT TO DEEM PLAINTIFF'S FIRST
AND SECOND REQUESTS FOR ADMISSIONS AS "ADMITTED"
ISSUE PRESENTED

Because the United States and the Internal Revenue Service answered the admissions in the agreed upon time frame between the parties and the United States objected to each admission as allowed for by the Fed. R. Civ. P, should the Court grant Dean's request to have his admissions deem admitted?

STATEMENT

The United States and the Internal Revenue Service (collectively, "United States") moved for a stay of this proceeding on the basis that responding to the discovery served by Dean -- including the admissions -- would interfere with the ongoing criminal investigation. The United States informed Dean that it would not be responding to the discovery requests until after the Court ruled on the initial motion to stay because of the threat the civil discovery posed to the ongoing criminal proceedings. The United States documented this understanding between the parties in a July 23, 2003 letter to Dean. (Ex. 1.) In response to these discussions and written correspondence, Dean did not object, or notify the United States or the Court that he considered the responses to be due. After the Court denied the motion to stay proceedings, the United States and Dean discussed the issues of extending the discovery period for 120 days and responding to the outstanding discovery requests. Initially, Dean agreed to extend the discovery deadline, but then reconsidered as set forth in his August 25, 2003 letter. (Ex.2.) In this letter, Dean requested that responses to his discovery requests be made within two weeks time. (Id.) The United States responded to plaintiff's admissions on September 5, 2003 (within two weeks of Dean's August 25th letter) by individually objecting to each admission. The objections to the admissions were on the grounds that each request is neither relevant nor reasonable calculated to lead to the discovery of admissible evidence and is overbroad.

ARGUMENT

The United States makes two arguments in support of denying Dean's motion. First, the admissions should not be deemed admitted because the United States responded to them within an agreed upon time frame between the parties in accordance with Federal Rules of Civil Procedure 29 and 36(a). Second, objecting to the admissions is an appropriate response as Dean is attempting to use civil discovery to interfere with the concurrent criminal investigations.

A. The United States Timely Responded to Dean's Admissions.

As set forth above, Dean was informed that the United States would not respond to Dean's discovery requests until after the initial motion to stay was ruled upon because it was the United States' position that responding to civil discovery would interfere with the criminal proceedings. This was also the argument presented in the motion to stay. The Court subsequently denied the United States' initial motion to stay the proceedings. And the United States renewed its motion to stay the proceedings in accordance with the Court's opinion and continues to assert that the civil discovery will interfere with the ongoing criminal proceedings.l/ After the Court issued the order, Dean on August 25, 2003 allowed the United States two weeks to answer to the admissions, which was done.

Dean's current argument that the United States' responses are untimely must be rejected. (Mot. Deem Admitted 5.) Because Dean agreed that the United States did not have to respond to the admissions within 30 days (Ex. 1) and then gave the United States two weeks from August 25, 2003 to respond (Ex. 2), the parties stipulated to an extension of time as allowed for by the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 29 and 36(a). Also, Dean should be precluded from now arguing that the United States' responses are late as the United States relied on Dean representations and acting upon them accordingly.
To the extent Dean is asserting that the United States failed to make any response within the two week period after August 25th because the admissions were objected to (id.), this position is unfounded. A party is required to respond to an admission by either "written answer or objection." Fed. R. Civ. P. 36(a). Because the United States served objections to the requests for further evidence demonstrating that civil discovery will interfere with the criminal proceedings will be submitted when the Court rules on the request to submit the second declaration of Tanya Burgess under restrictions and the third declaration of Tanya Burgess ex parte and under seal.

B. Objecting to the Requests for Admission is Appropriate Because of the Ongoing Criminal Investigation.

The United States must object to Dean's requests for admissions and any other discovery requests at this time because of the renewed motion to stay the proceedings and the likelihood that any responses to discovery could be used by Dean to interfere with the ongoing criminal investigation. Dean's discovery requests seek information, among other things, related to the United States' underlying authority to conduct a criminal investigation. In particular to the admissions, almost half of them seek responses about the tax code's legal construction and its effect, and the purpose of this information is to form a basis to challenge the United States, underlying authority to conduct a criminal investigation and interfere with the criminal investigation.

There are several facts which support the United States' position. First, Dean through his own admission stated: "the responses and admissions sought within the aforementioned civil discovery pleadings will have a significant impact upon the ongoing criminal investigation." (Renewed Mot. Stay p.3.) Dean also gave the following sworn testimony in connection with the ongoing criminal investigation: "Internal Revenue special agents … have no authority whatsoever to enforce Title 26, subtitle A, income tax laws." (Renewed Mot. Stay p.5, Ex. 3, p.20.) On August 23, 2003 while appearing on the American Radio Show, Dean stated that obtaining civil discovery would "undermine their [the United States'] entire criminal investigation" and goes on to describe his civil litigation tactics as a good "strategy" to follow if you are under criminal investigation. (See August 22,2003 interview, hour 2, minute 41:40 at www.americanradioshow.us/archive.html.) These statements made by Dean powerfully demonstrate Dean's intent to use civil discovery to directly affect and interfere with the criminal matters.

Indeed, after bringing some these admissions to the Court's attention, Dean reversed his position that "[n]othing about the Plaintiff's discovery requests can be construed as relevant, or pertinent, to the ongoing criminal investigation." (Pl. Resp. Mot. Stay. p.4.) He now, in fact, concedes that the civil discovery is related to the criminal proceedings in this regard. (Pl. Opp. Renewed Mot. Stay pp.2, 4,7.) Dean's own concession verifies the United States' position, which has not altered.

Additionally, the United States' assertion that Dean will use any information received through civil discovery to challenge the authority of the government in the ongoing criminal proceedings is also predicated on Dean's past conduct unrelated to the present proceedings. He brought a collection due process action against the United States for its alleged failure to assess Dean in accordance with the law or outside its legal authority. Dean's arguments were rejected out of hand, and the case dismissed. (See Dean v. United States, 3:01-CV-430 (LAC).) On his website, Dean also discusses how he sued the State of Florida and several individuals alleging, among other things, that the State's agents did not have the requisite authority to engage in conduct on behalf of the States. (Ex. 3, 38-44, 51-58, 65, 72, 87.) Based on this past and present repetitive course of conduct, challenging the underlying authority of the government to take certain actions is not a new theory or defense to Dean.

These examples demonstrate how Dean’s attempt to challenge the underlying authority of the United States to conduct a criminal investigation is directly related to one of Dean's theories for prosecuting the civil matter as well as a defense he has raised in the criminal proceedings.

(Pl. Opp. Renewed Mot. Stay pp.3, 5-7; Renewed Mot. Stay pp. 2-10.) A strong nexus exists between the criminal and civil proceedings, and responding to civil discovery on this matter, would directly impact and interfere with the criminal proceedings. This is of serious concern, is fully supportable by Dean's conduct, and is why the United States objected to the admissions. Indeed, the United States has a strong interest in protecting its criminal investigations from interference, and its objections to Dean's admissions, therefore, should stand.

CONCLUSION

Because the United States timely responded to plaintiff's requests for admissions within the agreed upon time frame made between the parties and the United States responded to those admissions in accordance with the Fed. R. Civ. p., the admissions should not be deemed admitted.
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DATED: September 26, 2003 Respectfully submitted,
GREGORY R. MILLER
United States Attorney
GERALD A. ROLE
LINDSEY W. COOPER, JR.
(TN Bar No.020705, DC Bar No.473895)
Civil Tax, Eastern Region
U.S. Department of Justice
P .0. Box 227, Ben Franklin Station
Washington, DC 20044
Telephone: (202) 307-6528
Facsimile: (202) 514-6866
Attorneys for the United States