Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted June 13, 1988.
N.D.Cal.
AFFIRMED.
Appeal from the United States District Court for the Northern District of California; William H. Orrick, Jr., District Judge, Presiding.
Before CHAMBERS, GOODWIN and NORRIS, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Circuit Rule 36-3.
James Clark appeals pro se his conviction, following his nolo contendre plea, on two counts of failure to file tax returns in violation of 26 U.S.C.§ 7203. Clark contends that the district court erred in denying his motion to dismiss the charges because the information filed against him did not meet the requirements of Fed.R.Crim.P. 4 and 7, and because the Sixteenth Amendment is invalid. He also contends that he should have been prosecuted by indictment rather than by information. Because Clark's plea agreement failed to reserve any issues for appeal, this court's review is limited to his claims that attack the jurisdiction of the district court. See United States v. Travis, 735 F.2d 1129, 1131 (9th Cir.1984). Therefore we do not review Clark's claim that the district court judge was biased against him.
Clark's jurisdictional contentions are meritless. First, Fed.R.Crim.P. 7(a) provides that a misdemeanor may be prosecuted by indictment or by information. Violation of 26 U.S.C. § 7203 is a misdemeanor. Second, the information was valid. There is no requirement that an information be verified, and a defendant charged by information is not entitled to a hearing on probable cause when the information is filed. See United States v. Pickard, 207 F.2d 472, 474-75 (9th Cir.1953). The summons was issued upon a showing of probable cause which complied with Fed.R.Crim.P. 4(a) and 9. Clark's contention that the summons should not have been issued without a prior determination of probable cause lacks merit because he was at liberty until the conclusion of the criminal proceedings against him. See United States v. Yellow Freight System, Inc., 637 F.2d 1248, 1252-53 (9th Cir.1980), cert. denied, 454 U.S. 815 (1981). Finally, Clark's contention that the Sixteenth Amendment was not properly ratified has recently been rejected by this court. See United States v. Stahl, 792 F.2d 1438, 1441 (9th Cir.1986),cert. denied, 107 S.Ct. 888 (1987).
AFFIRMED.