[Vicomte13 #116 to A K A Stone] The Commerce Clause of the Constitution, like every other clause therein, means what the Supreme Court says it means.
This is the fact, although it tends to be given short shrift around here. SCOTUS is the ultimate arbiter of what the law is. A personal opinion that a Court opinion is wrong does not have any legal effect.
[Vicomte13 #116 to A K A Stone] Currently, the meaning is so broad that I can't off the top of my head think of any commerce not being regulable. Perhaps there is some limiting case law. When I last looked at the issue, long ago in law school, a farmer growing crops on his own farm to feed his own livestock was sufficiently engaged in "interstate commerce" (because of the potential effect of such activity thereupon), that his activity was regulable. I can't think of any economic activity that wouldn't be federally regulable under that broad standard.
For the lurkers to this conversation, I believe the farmer case was Wickard v. Filburn 317 U.S. 111 (1942). In that case, the family farm was in Montgomery County, Ohio.
I agree with your assessment that the Court expanded the Federal power to encompass just about every conceivable act of commerce. It was not easy to attempt expansion of power exceeding every conceivable act of commerce, although Obamacare found a way to try.
With Obamacare, an attempt was made, pursuant to the Commerce Clause, to regulate or penalize inaction, a failure to engage in commerce by not purchasing private, for-profit health insurance. I argued the unconstitutionality of such attempted usage of the Commerce Clause to regulate what was the absence of commerce. Because the individual mandate was declared unconstitutional under the Commerce Clause, the mandate was interpreted as a tax and upheld under the taxing power, but SCOTUS recently held that it can no longer be interpreted as a tax as legal changes have stripped it of any ability to raise revenue, eluding the definition of a tax.
At least there is something that escapes the Commerce Clause, although it is not an action, but an inaction. Then again, perhaps an inaction is a nothing.
[Vicomte13 #118 to nolu chan] Perhaps an example will help clarify.
The Founders who were leery of the Bill of Rights were not opposed to the rights enumerated. Rather, they were concerned about the application to matters of rights of the interpretive doctrine that has come down to us as the "expresio unius" doctrine, from the Latin "expresio unius est exclusio alterius" (literally, to express one thing, or a set of things, in a contract as being covered by that contract is to exclude everything NOT listed).
You are perfectly correct in what you state. I would only supplement that Framers saw the original Bill of Rights as only applicable in restraint of the Federal government. It did not apply at all to the States until after the 14th Amendment, and subsequent selective incorporation against the States by the Court.
[Vicomte13 #118 to nolu chan] The 9th Amendment is an 18th Century effort to prevent the application of what we would call "expresio unius" doctrine. The fear was that the list of enumerated rights would be interpreted to exclude all other rights not enumerated, as in a contract. The 9th Amendment says no.
The proposed 9th Amendment was stripped of much of its important content by the Committee of Eleven. The adopted 9th Amendment (and the whole BoR) generally served as a restraint on the Federal government. The text of the 9th served to restrain the Federal government from adopting any construction of the inclusion of enumerated rights as excluding unenumerated rights, as you state.
This only restrained actions against claimed unnumerated rights on the basis of their lack of enumeration.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The enumeration of certain rights cannot be cited to deny an unnumerated right. It is left to the Courts to decide what is, or is not, an unnumerated right, and whether that right is "fundamental." Not all legislation that burdens a fundamental right is unconstitutional, but is subject to a stricter standard of review.
For the casual reader, Black's Law Dictionary, 6th Ed.:
Fundamental rights. Those rights which have their source, and are explicitly or implicitly guaranteed, in the federal Constitution, Price v. Cohen, C.A.Pa., 715 F.2d 87, 93, and state constitutions, Sidle v. Majors, 264 Ind. 206, 341 N.E.2d 763. See e.g., Bill of rights.
Challenged legislation that significantly burdens a "fundamental right" (examples include First Amendment rights, (privacy, and the right to travel interstate) will be reviewed under a stricter standard of review. A law will be held violative of the due process clause if it is not closely tailored to promote a compelling or overriding interest of government. A similar principle applies under Equal Protection law.
I would note one quibble with Black's. The Constitution does not guarantee rights, so much as it declares restrictions upon the powers granted to the Federal government. Congress shall pass no law abridging the right to free speech. The restriction is not absolute, as the right to free speech is not absolute. The right itself does not include a "right" to utter libelous or slanderous statements, to shout "fire" in a crowded theater, or to incite a riot.
[Vicomte13 #118 to nolu chan] Now the example: the marital right of consortium is long established in Common and Civil Law. It's not mentioned in the Constitution. It did not, therefore, cease to exist with ratification, but rather, is assumed to exist as before. That's what the 9th is for - it's a safeguard against that sort of interpretive game by an unscrupulous government. There is no list of unenumerated rights - that's the whole point of the exercise.
You are absolutely correct in asserting that, the marital right of consortium is long established in Common and Civil Law.
[Vicomte13 #118 to nolu chan] It did not, therefore, cease to exist with ratification, but rather, is assumed to exist as before. That's what the 9th is for - it's a safeguard against that sort of interpretive game by an unscrupulous government.
However, I would note, the marital right to consortium of two people of the same sex is not long established in Common and Civil Law. Nor does the penumbra of an emanating unnumerated right of privacy broad enough to encompass condoms and abortions seem to be well established in Common and Civil Law.
In Obergefell, Griswold, and Roe, the Court appeared to use the empty vessel of substantive due process to pour new meaning into the Constitution. A criticism of this is that the Court appears almost as an ad hoc Constitutional Convention, expanding Federal power. It is strange that the Bill of Rights is invoked to expand Federal power, when it was designed to prevent the expansion of Federal power.
For an example, the right to privacy is an unnumerated right, as is the right to abortion. The 9th Amendment, inter alia, was cited in support of the right to abortion. The 9th Amendment restrained government denial of the asserted right to abortion via construing the Constitution to deny the existence of said right because it was not enumerated. Application extended to the States by incorporation via the 14th Amendment would appear to restrain the States from denying the asserted right to abortion via construing the Constitution as denying said right's existence because it was not enumerated.
What I fail to see is how the 9th Amendment can be contorted to establish the existence of a positive right to abortion. If it existed as a right in Common or Civil law, I see how it could be found there. But how it is found in a penumbra from an emanation from an unnumerated right eludes me.
I do not find the right to abortion in a penumbra emanating from the unenumerated right to privacy. I simply do not find abortion to be a constitutional right. SCOTUS found that, and they made it law. SCOTUS can overturn Roe and it will no longer be a constitutional right, much as Pluto is no longer a planet.
In the end, what SCOTUS says is the law. Until they change their mind, or the law itself is changed, and then the most recent statement becomes the law.
It means what it says. They can regulate interstate commerce. When the Supreme court gets it wrong the meaning of words don't change.
Even when SCOTUS gets it wrong, what they say is the law. That's the truth. Abortion and gay marriage are constitutional, and growing more than your alloted quota of corn is illegal, and unnumerated rights emanate penumbras broad enough to encompass more unnumerated rights.
Even when SCOTUS gets it wrong, what they say is the law. That's the truth.
Sure it is. It is the system we have. But the truth is still the truth and they get it wrong often. That is why it is color of law.
I know my opinion doesn't count on the law. I'm just stating what I believe to be true. I believe they get it wrong and it is illegitimate when I say it is. :)
In the end, what SCOTUS says is the law. Until they change their mind, or the law itself is changed, and then the most recent statement becomes the law.
If you want to change the law, start with changing the flag with the yellow-fringe on it. usa-the-republic.com/item...interest/flag%20code.html You can read where titled "THE FLAG IS PRECISELY DEFINED BY LAW"
Your blather is tax protester nonsense which was was disposed of decades ago as being frivolous and of no merit whatever. A lawyer making that argument could be subjected to sanctions for frivolous filing.
United States v. Greenstreet, 912 F.Supp. 224 (N.D. Tex. 1996).
[Excerpt]
Finally, Defendant Greenstreet's response to Plaintiff's motion for summary judgment identifies this Court as an "Admiralty Court" without further discussing his allegation. If his reference is to be construed as a jurisdictional challenge, his motion is denied. Others have attempted to persuade the judiciary that fringe on an American flag denotes a court of admiralty. In light of the fact that this Court has such a flag in its courtroom, the issue is addressed. The concept behind the theory the proponent asserts is that if a courtroom is adorned with a flag which happens to be fringed around the edges, such decor indicates that the court is one of admiralty jurisdiction exclusively. To think that a fringed flag adorning the courtroom somehow limits this Court's jurisdiction is frivolous.See Vella v. McCammon, 671 F. Supp. 1128, 1129 (S.D.Tex.1987) (describing petitioner's claim that court lacked jurisdiction because flag was fringed as "without merit" and "totally frivolous"). Unfortunately for Defendant Greenstreet, decor is not a determinant for jurisdiction.
Vella v. McCammon, 671 F. Supp. 1128 (S.D. Tex. 1987)
[Excerpt]
The remaining claims that Petitioner has asserted by way of motion to dismiss, e.g. Court lacking jurisdiction because the Court's flag has yellow fringes on it, were denied and the Court considers them to have not only been without merit but also to have been totally frivolous. Petitioner's claims have no arguable basis in law or fact and the appeal is not taken in good faith.
Yes, Wickard v. Filburn. That case made me angry in law school. It's an instance of "Oh, COME ON!" But, it is what it is, and my irritation at it doesn't change the fact that it is the way things are.
And yes, the Obamacare overreach DID finally result in the Supremes finding a limit to the Commerce Clause - the regulation of INACTION. i think past courts would have found even that within the scope of regulation, but the conservative court has found a limit.
Your blather is tax protester nonsense which was was disposed of decades ago as being frivolous and of no merit whatever. A lawyer making that argument could be subjected to sanctions for frivolous filing.
The Congress shall have Power to Lay and collect Taxes, Duties, Imposts and Excise, to Pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and excises shall be uniform throughout the United States;" The Constitution for the United States of America, Article 1, Section 8, paragraph 1. [emphasis added]
No Capitation or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration hereinbefore directed to be taken." The Constitution for the United States of America, Article 1, Section 9, paragraph 4. [emphasis added]
As for your tax protestor comment I will leave you with the exact tax statute that would be applicable were I held to be liable to collect such a tax.
26 CFR, 601.103 (a) is the only place which tells us who is required to file a return, provided that person has been properly noticed by the District Director to KEEP RECORDS AND THEN NOTICED THAT HE/SHE IS REQUIRED TO FILE. It states, "In general, each taxpayer (or person required to collect and pay over the taxes) is required to file a prescribed form of return ..." Are you a Taxpayer? (l.o.- you must first be a tax collector)
The 16th Amendment and its case law ended that original regime. The current tax system is constitutional and legal.
And anyway, it's NECESSARY to fund a first world country that's the linchpin of world peace, so what purpose is served standing against the idea of taxation? It just raises your blood pressure for no advantage at all.
Of course if you just outright refuse to pay taxes, you go to jail and lose your house.
Since millions of taxpayers such as myself paid into a penalty fund last year for not having such insurance and then come to find out this so-called fraud tax "law" was indeed unconstitutional just begs for those taxpayers to bring class-action suits. And it was indeed a direct tax.
So if this makes me out to be some tax protestor, remember too that we still do have a First Amendment Right to redress our grievances before a court system. It is both our right and responsibility to redress such pertinent matters of this kind.
As for your tax protestor comment I will leave you with the exact tax statute that would be applicable were I held to be liable to collect such a tax.
26 CFR, 601.103 (a) is the only place which tells us who is required to file a return, provided that person has been properly noticed by the District Director to KEEP RECORDS AND THEN NOTICED THAT HE/SHE IS REQUIRED TO FILE. It states, "In general, each taxpayer (or person required to collect and pay over the taxes) is required to file a prescribed form of return ..." Are you a Taxpayer? (l.o.- you must first be a tax collector)
History & New Evidence that it is a foreign agency.
By Dan Meador April 1, 2000 dmeador@poncacity.net
Things are looking up for Dan Meador. He did his time in prison and got out. Perhaps you could find a source of legal advice who did not participate in a tax scam, and who is not a convicted criminal with a prison record.
Look what your wacko, criminal dingbat source's bullshit did to some poor bastard:
¶ 10 Mr. Wolgamot also recommended to plaintiff that he contact Mr. Wasson and Mr. Starns regarding the notice of deficiency. Mr. Wasson and Mr. Starns in turn referred plaintiff to a “legal researcher” named Dan Meador. Mr. Meador told plaintiff that the IRS was wrong with respect to the alleged deficiency, and that he would prepare documents that would help plaintiff deal with the IRS. Mr. Meador prepared a series of documents that were delivered by Mr. Starns to plaintiff. Plaintiff signed the documents prepared by Mr. Meador and sent them to the IRS. Plaintiff did not specify the exact dates he spoke with Mr. Wasson, Mr. Starns and Mr. Meador and signed the documents, although the chronology again indicates a time period of 1999-2002. Plaintiff stated he never considered paying the deficiency to the IRS because he “was being reassured by everybody that this was legal.”
¶ 11 Plaintiff testified that in response to Mr. Meador’s documents, the IRS sent him a letter stating that Mr. Meador’s arguments were “frivolous.”
[...]
¶ 34 Plaintiff argues that after receiving the notice of deficiency, his discovery of the actionable legal malpractice claim against defendants was delayed by the acts/omissions of Mr. Wolgamot and of persons referred directly or indirectly by Mr. Wolgamot (i.e., Mr. Starns, Mr. Wasson, Mr. Meador, and Mr. Vallone), who constantly reassured plaintiff that his participation in the AEGIS program was legal and could be defended. Plaintiff also argues that discovery of the actionable legal malpractice claim against defendants was further delayed by Mr. Wolgamot’s admitted intentional concealment of his doubts about the legality of the AEGIS trusts. Plaintiff contends that as result of the actions and omissions of Mr. Wolgamot and the persons to whom plaintiff had been referred, plaintiff did not discover he had an actionable claim for legal malpractice against defendants until December 31, 2003, when Mr. Coobs wrote him that he likely had claims against unspecified third parties. Elsewhere in his appellant’s brief, plaintiff contends he did not discover he had an actionable claim for legal malpractice against defendants until Mr. Pomerance informed him so in January 2004. Plaintiff argues he filed his complaint for legal malpractice on December 22, 2005, within two years of either of the dates on which he allegedly learned of his actionable claim against defendants (December 31, 2003, or January 2004), and thus the trial court erred in finding his legal malpractice action time-barred as a matter of law and granting summary judgment for defendants.
[...]
¶ 38 Even if, for the sake of argument only, we considered the statute of limitations as beginning to run only when plaintiff reasonably should have known he had an actionable claim against defendants, the facts indicate he reasonably should have known of his actionable claim for legal malpractice against defendants no later than October 10, 2003, when he retained the law firm of Meyer Capel to represent him. Specifically, by October 10, 2003, plaintiff had: (1) enrolled in AEGIS at Mr. Wolgamot’s prompting so as to provide him with asset protection and tax savings, despite Mr. Foster’s warning that his participation in AEGIS could lead to an audit; (2) received a notice of deficiency for the first two tax years he had been an AEGIS member; (3) been informed by the IRS that the defense to the notice offered by Mr. Meador was frivolous; (4) been informed by Ms. Ungaro that plaintiff’s participation in the AEGIS program, including its use of offshore trusts and debit cards, could lead him to being charged with money laundering and/or tax evasion; (5) received newsletters from Mr. Vallone relating to “problems” AEGIS members were having with the IRS, including an instance when the AEGIS office was raided by armed IRS agents who carted off documents; (6) received a notice from the IRS stating he owed $247,984.45 in back taxes for the years covering his participation in the AEGIS program; (7) received a notice from the Illinois Department of Revenue that he owed $30,813 in back taxes for the first two tax years he had been an AEGIS member; (8) authorized his secretary to send a letter to Mr. Starns in which she referenced AEGIS as constituting a “scam”; (9) been notified that Mr. Foster had been served with a subpoena from the Illinois Department of Revenue, Bureau of Criminal Investigations, to produce tax documents relating to plaintiff for years he had been an AEGIS member (1997 to 2001); (10) been served with a subpoena compelling him to provide AEGIS-related documents for a federal grand jury on December 3, 2002; and (11) been threatened by the Illinois Department of Revenue that it would refer plaintiff to the Illinois Department of Professional Regulation for proceedings to suspend his medical license if he did not pay the money he owed in back taxes for the years he had been an AEGIS member.
¶ 39 In sum, all these notifications and subpoenas from 1999 to 2003 informed plaintiff that, far from reducing his tax liability as promised by defendants, his participation in the AEGIS program was increasing his tax liabilities and subjecting him to potential criminal prosecution and loss of his medical license. By the time plaintiff retained Meyer Capel on October 10, 2003, to handle any proceedings brought against him by the Illinois Department of Professional Regulation in connection with his failure to pay taxes under AEGIS, he reasonably should have known that he was injured by his participation in the AEGIS program, that his injury was wrongfully caused, and that he had an actionable claim against defendants. Plaintiff still did not file suit for legal malpractice until more than two years lat er, December 22, 2005. Thus, even under plaintiff’s reading of Khan as holding that the twoyear limitations period does not begin to run until plaintiff realizes he has an actionable claim, plaintiff’s legal malpractice action against defendants still was not timely filed. Accordingly, the trial court correctly found plaintiff’s legal malpractice action was timebarred as a matter of law.
¶ 40 Next, plaintiff argues defendants should be estopped from raising a limitations defense, given that Mr. Wolgamot assured plaintiff the AEGIS program was legal and performed legal work to allow plaintiff to continue in AEGIS even after receipt of the notice of deficiency, referred plaintiff to persons who assured him of the legality of the AEGIS program, and withheld the fact that the Seventh Circuit had found the AEGIS program was not a legitimate tax shelter. “The party claiming estoppel has the burden of proving it by clear and unequivocal evidence.” Geddes v. Mill Creek Country Club, Inc., 196 Ill. 2d 302, 314 (2001). “To establish equitable estoppel, the party claiming estoppel must demonstrate that: (1) the other person misrepresented or concealed material facts; (2) the other person knew at the time he or she made the representations that they were untrue; (3) the party claiming estoppel did not know that the representations were untrue when they were made and when they were acted upon; (4) the other person intended or reasonably expected that the party claiming estoppel would act upon the representations; (5) the party claiming estoppel reasonably relied upon the representations in good faith to his or her detriment; and (6) the party claiming estoppel would be prejudiced by his or her reliance on the representations if the other person is permitted to deny the truth thereof.” (Emphasis added.) Id. at 313-14. “Under Illinois law, equitable estoppel does not give a plaintiff the entire limitations period measured from the date the defendant discontinues the conduct that lulled the plaintiff into inaction.” Butler v. Mayer, Brown & Platt, 301 Ill. App. 3d 919, 925 (1998). Rather, plaintiff is allowed a “reasonable period to bring suit.” Id. at 926.
United States v. Meador, 45 F. Supp. 2d 1263 (N.D. Okla. 1999)
US District Court for the Northern District of Oklahoma - 45 F. Supp. 2d 1263 (N.D. Okla. 1999)
April 2, 1999
45 F. Supp. 2d 1263 (1999)
UNITED STATES of America, Plaintiff, v. Dan Leslie MEADOR, Defendant.
No. 96-CR-113-C.
United States District Court, N.D. Oklahoma.
April 2, 1999.
ORDER
H. DALE COOK, District Judge.
Before the Court is defendant, Dan Meador's, motion, styled "Application for Writ of Habeas Corpus." However, since 28 U.S.C. § 2255 is the exclusive remedy for a prisoner in federal custody who asserts that his sentence was imposed in violation of federal law, the Court will treat Meador's present application as a motion brought pursuant to § 2255.
In August 1996, Meador was named in a three Count Indictment, charging him with obstruction of justice and unlawfully communicating with a grand juror, in violation of 18 U.S.C. §§ 1503-1504. Meador proceeded to trial, and the jury returned a verdict of guilty on all Counts on January 10, 1997. In May 1997, the Court denied numerous post-trial motions filed by Meador, including motions for judgment of acquittal and new trial. In June 1997, Meador was sentenced to a term of 16 months' imprisonment, three years of supervised release, and fined $2,000. Meador filed notice of appeal on June 30, 1997. However, the Tenth Circuit dismissed the appeal on December 19, 1997, for lack of prosecution. Meador did not thereafter attempt to seek rehearing or otherwise move to *1264 have his appeal reinstated by the Circuit. Meador mailed his present motion to the Court, and it was received by the Clerk on March 2, 1999.[1]
Prior to addressing the merits of Meador's § 2255 motion, the Court must confront certain issues which may bar consideration of the motion. First, since the record indicates that Meador is no longer incarcerated, the Court must determine whether he qualifies for § 2255 relief. Section 2255 provides that, "A prisoner in custody under sentence of a court ... may move the court which imposed the sentence to vacate, set aside or correct the sentence." Thus, § 2255 relief is clearly limited to federal prisoners in custody. However, the "in custody" requirement has been broadly construed, and since Meador is continuing to serve a term of supervised release, he may properly be considered "in custody" for purposes of § 2255. See Scanio v. United States, 37 F.3d 858, 860 (2d Cir. 1994) (while the petitioner must satisfy the jurisdictional "in custody" requirement of § 2255 in order to invoke habeas review by a federal court, a petitioner under supervised release may be considered "in custody"); Maleng v. Cook, 490 U.S. 488, 491-492, 109 S. Ct. 1923, 104 L. Ed. 2d 540 (1989) (recognizing very liberal construction of the "in custody" requirement).
The Court further recognizes that § 2255, as amended in April 1996, provides for a one-year limitations period in which to file a § 2255 motion after the date on which the judgment of conviction becomes final. The judgment of conviction was entered in this case on June 19, 1997. Meador subsequently filed notice of appeal, but the Tenth Circuit ultimately dismissed the appeal on December 19, 1997, for lack of prosecution. Generally, a judgment of conviction is final when the judgment of conviction is rendered, the availability of appeal exhausted, and the time for petition for certiorari has expired. Allen v. Hardy, 478 U.S. 255, 258 n. 1, 106 S. Ct. 2878, 92 L. Ed. 2d 199 (1986). However, in the present case, the Court believes that the judgment of conviction became final when the Circuit dismissed the appeal on December 19, 1997, for lack of prosecution. By failing to prosecute his direct appeal, and by subsequently failing to seek rehearing on, or otherwise challenge, the Circuit's order of dismissal, Meador clearly acquiesced in, and accepted, the finality of his judgment of conviction and sentence. Although Meador may have theoretically had 90 days after the Circuit's order of dismissal in which to petition the Supreme Court for certiorari, such a petition would have been limited solely to the issue of whether the Circuit erred in dismissing his appeal for lack of prosecution, and the merits underlying the direct appeal would not have been considered. Thus, the Court can envision no logical or legal reason for setting the date of finality at 90 days from the date of dismissal.[2] The Court will therefore treat the date of the Circuit's mandate dismissing Meador's appeal as the date that his judgment of conviction became final. See also United States v. Burch, 37 F. Supp. 2d 1249, (D.Kan.1998) (because defendant did not file her § 2255 motion within one year of the date that the Tenth Circuit issued its mandate, her motion is time-barred); Gendron v. United States, 154 F.3d 672, 674 (7th Cir.1998) (federal prisoners who decide not to seek certiorari will have the limitations period begin to run on the date the court of appeals issues the mandate in their direct appeal).[3]
*1265 As the Court has determined that Meador's judgment of conviction became final on December 19, 1997, his present motion, filed on March 2, 1999, is time-barred under § 2255's one-year limitations period.[4]
Accordingly, Meador's present § 2255 motion is hereby DENIED. The Clerk is directed to return to Meador the $5.00 filing fee which he submitted along with his present motion.
IT IS SO ORDERED.
NOTES
[1] Since the record indicates that Meador is no longer incarcerated, the date that the present motion was actually received by the Clerk will be deemed the date that the motion was filed.
[2] Moreover, Meador never, in fact, petitioned the Supreme Court for certiorari, and, as noted, the record does not indicate that he otherwise challenged the dismissal of his direct appeal. These facts strongly indicate that Meador intended to permit the judgment of conviction to become final on the date that the Circuit dismissed his direct appeal, if not before then.
[3] The Court notes that the court in Kapral v. United States, 166 F.3d 565, 570-571 (3rd Cir.1999), disagreed with Gendron, and held that if a defendant does not file a petition for certiorari, the judgment of conviction does not become final until the time for seeking certiorari review expires. While this is an issue which may ultimately need to be decided by the Supreme Court, this Court need not confront this precise issue in the present case. In Kapral, the defendant was convicted of tax evasion, and the Third Circuit affirmed the defendant's judgment of conviction on the merits. The defendant did not file a petition for certiorari, but he later filed a § 2255 motion with the district court. The district court denied the motion as time-barred, using the date that the Circuit affirmed the defendant's conviction as the date that the judgment of conviction became final. The Third Circuit vacated and remanded, finding the § 2255 timely filed, as measured from the date on which the defendant could no longer petition for certiorari.
Kapral is thus distinguishable. In the present case, the Circuit did not affirm Meador's judgment of conviction on the merits. Rather, the Circuit dismissed the appeal for lack of prosecution. Hence, the rationale and reasoning behind the Kapral decision simply do not apply here. The judgment of conviction in the present case therefore became final when Meador failed to prosecute the merits of his direct appeal and permitted the appeal to be dismissed.
[4] Even if the Court were to consider the merits of the present motion, however, the Court finds that it is patently frivolous and must be denied. The motion merely realleges several arguments that Meador raised during the course of the proceedings in the present case, and which the Court found baseless.
W.A. Drew Edmondson, Attorney General Office of the Attorney General Oklahoma State Capitol Oklahoma City 73105/tdc OKLAHOMA STATE
Re: Complaint under Oklahoma Corrupt Organization Law
ENCLOSURES: OTC-IRS Agreement & my cover letter to Commissioner Anderson
Dear Attorney General Edmondson:
This letter is to convey a complaint against the Internal Revenue Service and various people supportive of Service initiatives under the Oklahoma Corrupt Organization Act.
The complaint immediately issues against the following: H. Dale Cook, Frank McCarthy, and Sam Joyner, all of whom serve as judicial officers for the Article IV United States District Court, Northern District of Oklahoma; Stephen Lewis, United States Attorney for the Northern District of Oklahoma; Neal Kirkpatrick, Assistant United States Attorney; and Tracy Foster, an inspector with the Internal Revenue Service, Arkansas-Oklahoma District. In is not necessary to immediately name John and Jane Doe defendants.
You may notify those complaints initially issued against and K. J. Sawyer, District Director for the Arkansas-Oklahoma District of Internal Revenue Service.
You are aware that the Internal Revenue Service is an agency of the Department of the Treasury, Puerto Rico, a foreign-based entity which has no authority in the continental United States. Public notice to that effect published as a legal publication in The Journal Record the last two weeks of June and the first week of July, 1996. Internal Revenue Service principals did not rebut or correct any element of the public notice so the notice must be presumed correct unless or until evidence to the contrary establishes that the Internal Revenue Service is an agency of the United States Treasury Department, or the United States Department of the Treasury -- you will find at 31 U.S.C. §§ 301- 310 that IRS is not listed as a department or agency in the United States Department of the Treasury.
Additional complaints will be filed by other parties with respect to what appears to be opening as a rather expansive conspiracy involving UNITED STATES OF AMERICA v. KENNEY F. MOORE, et al. (#96-CR-082-C), UNITED STATES OF AMERICA v. DAN LESLIE MEADOR (#96-CR-113-C), both in the Article IV United States District Court for the Northern District of Oklahoma, UNITED STATES OF AMERICA v. HOWARD BOOS, et al. (#97-CR-032-A), in the Article IV United States District Court for the Western District of Oklahoma, and possibly other cases.
Dan Meador Affidavit of Complaint: Page 1 of 3
Article IV United States District Courts located in the Union of several States party to the Constitution have authority only to prosecute misdemeanor offenses committed within United States jurisdiction under authority of 18 U.S.C. § 3401 and attending Department of Defense and Bureau of Land Management regulations. They do not have general jurisdiction in the Union states. Further, as they accommodate IRS-initiated suits, all of which are under color of law (Subtitle F of the Internal Revenue Code does not become effective as law until Title 26 of the United States Code is enacted as positive law), they function on behalf of the "United States of America", an undisclosed foreign principal (you will find that Titles 18, 26 & 28 authorize the "United States" as plaintiff or defendant, not the "United States of America", and that the Constitution of the United States vests authority in a governmental entity identified as the "United States"), the foreign principals being generally but not particularly identified at 28 CFR, Parts 0.49 & 0.64-1.
The OTC-IRS agreement, with my letter to Commissioner Anderson, demonstrates that IRS and Article IV United States District Courts are operating on a presumed State grant of authority to exceed United States jurisdiction in the Union of several States party to the Constitution of the United States. This is contrary to the Separation of Powers Doctrine (Tenth Amendment), and contrary to the Oklahoma prohibition against Federal officials serving as State officials (Art. II § 12, Okla. Constitution). The OTC-IRS agreement, made with no statutory authority from the Oklahoma Legislature or Congress (the Treasury Department is vested with responsibility for administering the Internal Revenue Code in the continental United States, I.R.C. §§ 7701(a)(12)(a) & 7805(a)), implements administrative law which is of no effect in the geographical United States or the Union of several States. Further, the Article IV United States District Courts operate under Admiralty-Civil Law rules, which is contrary to intent of the "arising under" clause at Article III § 2.1 of the Constitution of the United States, and Article VII §§ 4 & 7 of the Constitution of the State of Oklahoma. As legislative courts, they impose bills of attainder, prohibited by the Constitution of the United States at Article I §§ 9.3 & 10.1, and the Constitution of the State of Oklahoma at Article II § 15.
Please be advised that I am filing particular criminal complaints against the above-named parties with the district attorney for Tulsa County, and because there are Federal as well as State offenses involved, will file complaints under the United States anti-terrorism act with Janet Reno, Attorney General of the United States.
At this juncture, I am electing not to include State officers at the Oklahoma Tax Commission in complaints as I don't believe most are cognizant of the extent of fraud and tyranny accommodated by the OTC-IRS agreement even though David Smith, the OTC State-Federal coordinator, was aware of the public notice and other initiatives involving the Internal Revenue Service. Commissioner Anderson and others are at least deserving of due diligence notice and the opportunity to terminate the unlawful agreement.
Dan Meador Affidavit of Complaint: Page 2 of 3
You first received complaints pertaining to illegal Internal Revenue Service initiatives in October or November 1995. You and Mr. Richard Wintory, your first assistant, have been provided with a considerable amount of research pertaining to the Internal Revenue Service, the character and limited authority of other Federal enforcement agencies (FBI in particular), jurisdiction of the Federal Law Enforcement Community, and jurisdiction and operation of Article IV courts of the United States. Yet you have elected to do nothing, and have for all practical purposes accommodated treason against people you pledged by oath to serve. In other words, by your actions, you appear mired in and committed to the Cooperative Federalism scheme, which was designed to over-throw sovereignty of the several States and the Constitution of the United States.
We have arrived at the time to fish or cut bait. The OTC- IRS administrative agreement put the last piece in place necessary to expose one of the more diabolical elements of Cooperative Federalism - an element that has destroyed and otherwise enslaved multitudes in ever-increasing numbers since World War II. It is time to move ahead to correct the problem. The initiative will proceed state-by-state as what we've unearthed, along with my analysis contained in the OTC commissioner letter, will probably be distributed nationally by the time you receive this complaint.
Should you fail to respond with authorities sufficient to overcome those cited herein and in the OTC Commissioner letter, and fail to seek appropriate remedies dictated by the Oklahoma Corrupt Organizations Act, I reserve the right to seek a specially appointed attorney general via political forum (Art. II §§ 1, 3 & 33, Okla. Const.), and otherwise secure lawful remedies. If you elect to investigate complaints conveyed in and with this letter, I would prefer that you appoint someone other than Mr. Wintory to handle the matter.
Things never known until Dan Meador showered his wisdom down on the gullible masses.
Highlights:
At 2-3:
Petitioner alleges that the four memorandum segments incorporated in this instrument are adequate: (1) The Article IV United States District Court for the Northern District of Oklahoma has statutory and regulatory capacity to prosecute only misdemeanor and petty offenses, with consent of the accused, on military installations and on land under Department of the Interior jurisdiction, and (b) the Federal Rules of Criminal Procedure, Federal Rules of Evidence, etc., do not apply to proceedings in Article III district courts of the United States, which have original criminal jurisdiction under 18 USC § 3231; (2) all entities involved in prosecution of the instant matter must disclose five essential elements of authority to establish standing and territorial and subject-matter jurisdiction; (3) the "United States of America" is a government foreign to the United States, and has no standing either by Constitutional delegation of authority or Titles 18, 19, 21, 26 and other titles of the United States Code, save Title 48; and (4) contrary to Article I § 9.3 of the Constitution, the Article IV United States District Court, being a legislative rather than judicial court, has effected a bill of attainder against petitioner.
At 3-4:
The fact that judicial officers (magistrates) in United States District Courts preside under the gold-fringed Union Jack (executive martial law/admiralty banner), rather than the official flag of the United States, prescribed at 4 USC § 1, is proof positive of underlying authority and purpose – when the executive admiralty-martial law authority is extended beyond borders of the geographical United States subject to Congress' Article IV § 3.2 legislative jurisdiction, and the authority moves under threat or actual force of arms, it cannot be construed other than as acts of plunder and war, with the sovereign people of the several States being the object of plunder, suppression, sedition and treason.
At 4:
For example, the last sentence of 40 USC § 255 stipulates that until the United States has formally accepted jurisdiction over land acquired by the United States, with jurisdiction ceded by the legislature of the State where the land is acquired, United States jurisdiction is presumed not to exist. Where the instant matter is concerned, counsel for the "United States of America" may prove United States jurisdiction in the county of Kay, or the community of Ponca City, state of Oklahoma, by entering proof that the United States formally accepted jurisdiction to the county or community in compliance with requirements of 40 USC § 255 and Article I § 8.17 of the Constitution.
At 5:
1. The United States District Court for the Northern District of Oklahoma, and all other United States District Courts located in the Union of several States party to the Constitution. (1) Lack authority to prosecute felony crimes. (2) have no jurisdiction authority beyond that prescribed at 18 USC §7(3), and (3) are incompetent at law as contemplated by the "arising under" clause at Article III § 2.1 and the Fifth Article of Amendment to the Constitution.
At 35:
The Fourteenth Amendment and several amendments promulgated since 1870 expand United States authority relative to voting and civil rights violations against "citizens of the United States", and might conceivably extend authority relating to a true income tax levied under authority of the Sixteenth Amendment, but the United States does not have general civil and criminal jurisdiction throughout the Union of several States party to the Constitution. Without a special constitutional grant of authority, per U.S. vs. Constantine and New York vs. United States, supra, courts of the United States, whether Article III judicial courts (district courts of the United States), or Article IV legislative-territorial courts (United States District Courts), lack subject matter jurisdiction within the Union of several States save on Federal enclaves, defined as United States special maritime and territorial jurisdiction, per 18 USC § 7(3). In many instances, prosecutors for the "United States of America" (a government foreign to the United States) predicate prosecution of offenses on the commerce clause (Art. I § 8.3), but there is an inherent fallacy in this notion as no specific authority for prescribing punishment is enumerated in the Constitution (Tenth Amendment block; U.S. vs. Warrall, supra), and Title 18 of the United States Code addresses only offenses committed in the geographical United States subject to Congress' Article IV § 3.2 legislative jurisdiction, and United States admiralty and maritime jurisdiction.
At 44:
The fact that the Internal Revenue Service is not an agency of the Department of the Treasury of the United States is verified by consulting the list of Department of the Treasury agencies in Title 31 of the United States Code. Also of particular significance where the instant matter is concerned, the Department of the Treasury of the United States is an executive department, the Treasury of the United States is a Congressional department, with the General Accounting Office, under direction of the Comptroller General, being distinct, separate, and responsible for collection of obligations to the United States, including taxes owed under provisions of Subtitles A & C of the Internal Revenue Code (Vol. 68A of the Statutes at Large), as amended in 1986 and since.
The Internal Revenue Service, successor of the Bureau of Internal Revenue, Puerto Rico, (T.D.O. No. 150-29, 1953), operates out of or in conjunction with Puerto Rico Trust No. 62 (Internal Revenue), which is still administered by the Secretary of the Treasury (31 USC § 1321). The Internal Revenue Service has delegated authority to collect certain customs taxes in United States off-shore territories of the United States, and United States maritime jurisdiction.
The so-called "income tax" prescribed in Subtitle A of the Internal Revenue Code is not generally included in authority delegated to the Internal Revenue Service. The "income tax" is simply the "normal tax" preserved in the Internal Revenue Act of November 23, 1921, and the Public Salary Tax Act of 1939 (see Statutes at Large). The "normal tax", as the name of the Public Salary Tax Act of 1939 suggests, applies only to Government employees and officers of corporations construed to be instrumentalities of the United States - corporate entities the United States retains a proprietary interest in. Definitions at 26 USC § 3401(c ) & (d), which apply to withholding Subtitle A & C taxes at the source, confirm this allegation. And as various regulations specify, withholding agents, not employees in general, are the persons liable for these taxes (see 26 CFR, Part 1.1441, etc.).
Obviously, you didn't bother to check all those statutes he mentioned on that link I posted. Instead you choose to attack Meador and his literal works. Do yourself a favor, nolu chan, by going back and clicking onto that link of Meador's, and thoroughly read each section he discusses. Then, head to a law library to pull all those statutes. And along with that pull 26 CFR, 601.103 (a) I referenced of his, there should also be a Federal Register that cross-references this statute.
You say I posted nonsense. All that you post is case law which is non-positive law. If you click onto this link, www.tax-freedom.com/ta16013.htm it list all the US Codes that are Positive Law. Title 26 governs the IRS. All those that are Positive Law have an asterisk next to them. If you notice closely, Title 26 has none.
Yes, really. The notion that the law is some sort of set of arcane magic spells, the efficacity of which is determined by the presence or absence of decorative gold fringe on the US flag, and the idea that government actually operates on such knowledge and beliefs is, well, I would say childish, but it's more than that. It is breathtakingly out of sync with reality. That men have actually forfeited years of their lives and languish in jail because they really believed this nonsense is...again words fail me...cultish? No rational adult person can believe this. It's not the way the world works, ever. And everybody KNOWS that, or ought to. Magic spells don't work.
And along with that pull 26 CFR, 601.103 (a) I referenced of his, there should also be a Federal Register that cross-references this statute.
You say I posted nonsense. All that you post is case law which is non-positive law. If you click onto this link, www.tax-freedom.com/ta16013.htm it list all the US Codes that are Positive Law. Title 26 governs the IRS. All those that are Positive Law have an asterisk next to them. If you notice closely, Title 26 has none.
Meador's bullshit is not only without merit, it is without arguable merit. It is bullshit which this bloodsucking leach packaged and sold the unsuspecting, and the willfully ignorant. He and his bullshit are beneath contempt.
United States v. Galletti, 541 U.S. 114 (23 March 2004)
III
We now turn to the question whether the Government must make separate assessments of a single tax debt against persons or entities secondarily liable for that debt in order for § 6502's extended statute of limitations to apply to those persons or entities.4 We hold that the Code contains no such requirement. Respondents' argument that they must be separately assessed turns on a mistaken understanding of the function and nature of an assessment as identical to the initiation of a formal collection action against any person or entity who might be liable for payment of a debt. In its numerous uses throughout the Code, it is clear that the term "assessment" refers to little more than the calculation or recording of a tax liability. See, e. g., 26 U. S. C. § 6201 (assessment authority); § 6203 (method of assessment); § 6204 (supplemental assessments); 26 CFR § 601.103 (2003). See also Black's Law Dictionary 111 (7th ed. 1999) (defining "assessment" as the "[d]etermination of the [tax] rate or amount of something, such as a tax or damages"). "The Federal tax system is basically one of self-assessment," whereby each taxpayer computes the tax due and then files the appropriate form of return along with the requisite payment. 26 CFR § 601.103(a) (2003). In most cases, the Secretary accepts the self-assessment and simply records the liability of the taxpayer. Where the taxpayer fails to file the form of return or miscalculates the tax due, as in this case, the Secretary can assess "all taxes (including interest, additional amounts, additions to the tax, and assessable penalties)," 26 U. S. C. § 6201(a), by "recording the liability of the taxpayer in the office of the Secretary," § 6203. In other words, where the Secretary rejects the self-assessment of the taxpayer or discovers that the taxpayer has failed to file a return, the Secretary calculates the proper amount of liability and records it in the Government's books.
Obviously, the U.S. Supreme Court said you are full of shit.
You cite and misapply a general regulation to overrule a specific statute law.
The United States filed the instant action on March 1, 2012, seeking to reduce federal income tax assessments against Defendant to judgment and foreclose on Defendant’s real property pursuant to 26 U.S.C. § 7403 in order to satisfy that judgment. The only argument raised in Defendant’s Motion to Dismiss is that this action must be dismissed with prejudice because the government “[does] not have a statute that makes an individual LIABLE for INCOME taxes.” (Motion to Dismiss, p. 1) (emphasis in original).
This precise assertion, as well as countless other “frivolous tax-protester arguments,” has been “uniformly and conclusively rejected by every court that has examined the issue,” typically without further discussion.[1]Belmont v. Commissioner of Internal Revenue, 2007 WL 686388, *1 (U.S. Tax. Ct. 2007) (rejecting petitioner’s taxprotester arguments as “frivolous and without merit”); Jibilian v. United States, 2005 WL 1491908, * (Fed. Cl. 2005) (characterizing the argument that “there is no law that makes [plaintiff] liable for income tax” as “without merit and frivolous”); seealso, e.g., Crain v. Commissioner, 737 F.2d 1417, 1417 (5th Cir. 1984) (“We perceive no need to refute these [tax-protester] arguments with somber reasoning and copious citation of precedent; to do so might suggest that these arguments have some colorable merit.”); Upton v. I.R.S., 104 F.3d 543, 545 n. 1 (2nd Cir. 1997) (stating that the plaintiff’s “tax protestor arguments” were “barely worth a footnote”); United States v. Hilgeford, 7 F.3d 1340, 1342 (7th Cir. 1993) (characterizing such arguments as “shop worn” and without merit); Robnett v. United States, 165 B.R. 272, 274 (9th Cir. 1994) (noting that tax protest issues are “completely without merit” and serve no purpose “except to clog the court’s dockets, waste judicial time and cause protracted delays in worthy litigation.”); United States v. Jagim, 978 F.2d 1032, 1036 (8th Cir. 1992) (stating that constitutional tax protest issues are “completely without merit, patently frivolous and will be rejected without expending any more of this Court’s resources on their discussion.”); United States v. Drefke, 707 F.2d 978, 981 (8th Cir. 1983) (contention that individuals have no duty to pay income taxes is “totally without arguable merit”); Maxwell v. I.R.S. 2009 WL 920533, *2 (M.D. Tenn. 2009) (argument that “no law exists which imposes an income tax” has been “routinely rejected”); Bonnaccorso v. Comm’r of Internal Revenue, 2005 WL 3241913, **1-2 (U.S. Tax. Ct. 2005) (argument that petitioner had found “no code section that made [him] liable for any income tax” had been “consistently rejected and characterized as frivolous in innumerable cases” and required no discussion).
[1] We note, parenthetically, that 26 U.S.C. § 1(a) imposes an income tax of "every" United States citizen and that, pursuant to § 1(a), 26 C.F.R. § 1.1-1(b) provides that "all citizens of the United States . . . are liable to the income taxes imposed by the Code . . ." .
In United States v. Drefke, 707 F.2d 978, 981 (8th Cir. 1983), the Eighth Circuit Court of Appeals stated, in discussing section 6151, that “when a tax return is required to be filed, the person so required ‘shall’ pay such taxes to the internal revenue officer with whom the return is filed at the fixed time and place. The sections of the Internal Revenue Code imposed a duty on Drefke to file tax returns and pay the appropriate rate of income tax, a duty which he chose to ignore.
United States v Drefke et al, 707 F2d 978 (8th Cir 1983)
United States of America, Appellee, v. Paul M. Drefke, Appellant.united States of America, Appellee, v. Richard O. Jameson, Appellant, 707 F.2d 978 (8th Cir. 1983)
U.S. Court of Appeals for the Eighth Circuit - 707 F.2d 978 (8th Cir. 1983)
Submitted May 9, 1983. Decided May 13, 1983. Motion for Stay of Mandate Denied June 7, 1983
Richard O. Jameson, pro se.
Paul M. Drefke, pro se.
Robert G. Ulrich, U.S. Atty., David C. Jones, Asst. U.S. Atty., Springfield, Mo., for appellee.
Before BRIGHT, ROSS and JOHN R. GIBSON, Circuit Judges.
PER CURIAM.
Paul Drefke and Richard Jameson were both convicted of failure to file income tax returns for the years 1979 and 1980 in violation of 26 U.S.C. § 7203 and for filing false withholding exemption certificates for the years 1979, 1980 and 1981 in violation of 26 U.S.C. § 7205. They were arrested at the same time but tried separately before juries,[1] Jameson approximately two weeks after Drefke. Both were sentenced to two years in the custody of the Attorney General and placed on probation for three years. Because both raise a number of the same issues, we consider their appeals together. Both have filed lengthy pro se briefs with numerous attachments. We affirm all counts of both convictions.
Drefke and Jameson during calendar years 1979, 1980 and 1981 were employed by Roadway Express, Inc. in Strafford, Missouri. In 1979 Drefke had a gross income of $31,651.34 and in 1980 his gross income was $39,497.26. In 1979, Jameson had a gross income of $28,517.98, and in 1980 his gross income was $30,881.76. Both failed to file tax returns for these two years although they had previously filed tax returns for the years 1976, 1977 and 1978. In 1979, 1980 and 1981 Drefke and Jameson filed W-4 forms with their employer in which they claimed that they were exempt from federal income taxes and certified that they had not incurred a liability for federal income taxes in the preceding calendar year.
A five count indictment was returned against both men charging them with failing to file income tax returns for the two years[2] and of filing the three false withholding exemption certificates.[3] The separate trials resulted in the convictions of both Drefke and Jameson on all five counts.
Drefke and Jameson contend that 18 U.S.C. § 3231[4] does not confer jurisdiction on federal courts to try tax offenses. They argue that the general jurisdiction granted to federal courts in Sec. 3231 extends only to those federal crimes which appear in Title 18 of the United States Code. The argument is without merit.
In United States v. Spurgeon, 671 F.2d 1198 (8th Cir. 1982), we held that Sec. 3231 confers jurisdiction on district courts to try charges of failure to file income tax returns. Id. at 1199. Section 3231 grants federal courts jurisdiction over "all offenses against the laws of the United States" (emphasis added). Article I, Section 8 of the Constitution and the Sixteenth Amendment empower Congress to create and enforce an income tax. Pursuant to that power, Congress made federal crimes of certain actions aimed at avoiding payment of income tax. See 26 U.S.C. §§ 7201-7210. The district court, then, clearly had jurisdiction under 18 U.S.C. § 3231 to try the appellants for the offenses of failure to file income tax returns and filing false withholding exemption certificates.
Drefke also charges that the district court "obstructed justice" by refusing to consider his jurisdictional challenge. This argument is frivolous, and can only be considered as advanced in bad faith because the district court reviewed and denied Drefke's jurisdictional motions in an order issued on April 2, 1982.
Drefke and Jameson both argue that they were denied an administrative hearing on jurisdiction in violation of the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. The Act does not impose a requirement of adversary hearings before an agency but only specifies the procedure to be followed when a hearing is required by another statute. Califano v. Saunders, 430 U.S. 99, 97 S. Ct. 980, 51 L. Ed. 2d 192 (1977); Webster Groves Trust Co. v. Saxon, 370 F.2d 381 (8th Cir. 1966). The Internal Revenue Code nowhere grants individuals who are under criminal investigation the right to a hearing to challenge the Service's jurisdiction over them. Therefore the provisions of the Administrative Procedure Act cited by Drefke and Jameson are inapplicable.
Drefke argues that taxes are debts which can only be incurred voluntarily when individuals contract with the government for services and that those who choose to enter such contracts do so by signing 1040 and W-4 forms. By refusing to sign those forms, Drefke argues he is "immune" from the Internal Revenue Service's jurisdiction as a "nontaxpayer."
This is an imaginative argument, but totally without arguable merit. 26 U.S.C. § 1 imposes upon "every" individual a certain rate of income tax depending upon their amount of taxable income. 26 U.S.C. § 6012 states that unmarried individuals having a gross income in excess of $4,300, and married individuals entitled to make joint returns having a gross income in excess of $5,400 "shall" file tax returns for the taxable year. Considering Drefke's gross income for 1979 and 1980, he was clearly required to file tax returns for those years.
26 U.S.C. § 6151 states that when a tax return is required to be filed, the person so required "shall" pay such taxes to the internal revenue officer with whom the return is filed at the fixed time and place. The sections of the Internal Revenue Code imposed a duty on Drefke to file tax returns and pay the appropriate rate of income tax, a duty which he chose to ignore.
Jameson argued during voir dire that he would be prejudiced by media coverage of the trial of Paul Drefke. Drefke's trial, which ended two weeks before Jameson's commenced, received substantial media attention. The district court conducted a lengthy voir dire examination to insure an impartial jury, and identified those who knew about Drefke's trial and excluded those persons from the jury. Jameson requested and the district court denied separate written and oral voir dire of the seventy-one prospective jurors.
It is well established that decisions regarding the form and scope of voir dire examination are left largely to the discretion of the district court. Ham v. South Carolina, 409 U.S. 524, 528, 93 S. Ct. 848, 851, 35 L. Ed. 2d 46 (1973); United States v. Bowman, 602 F.2d 160 (8th Cir. 1979). Absent a finding of substantial prejudice or an abuse of discretion appellate courts will not disturb such decisions. United States v. Kershman, 555 F.2d 198 (8th Cir. 1977), cert. denied, 434 U.S. 892, 98 S. Ct. 268, 54 L. Ed. 2d 178 (1977). No substantial prejudice or abuse of discretion occurred in the present case from the district court's failure to permit a separate voir dire.
Jameson further argues that the district court erred in denying his motion to quash the entire jury panel for prejudice. During voir dire one venireman, in response to the question whether he could be impartial, stated: "I feel that if the individual was a mature individual with an income, he had knowledge that he should by law file an income tax return." We do not believe that this isolated comment caused substantial prejudice to Jameson and the district court's denial of his motion to quash the panel was not an abuse of discretion.
Jameson argues that he was prejudiced by the district court's denial of several jury instructions including an instruction on "jury nullification," that would have told the jury that it had a right to ignore the court's instructions on the law in the case. He contends that the authors of the Bill of Rights intended the Sixth Amendment to incorporate such a right, and makes a lengthy argument based on historical precedents.
We have specifically held in other cases involving prosecutions under tax laws that there is no right to a jury nullification instruction.United States v. Buttorff, 572 F.2d 619, 627 (8th Cir. 1978); United States v. Wiley, 503 F.2d 106, 107 (8th Cir. 1974). In Wiley we said, quoting earlier authority:
To encourage individuals to make their own determinations as to which laws they will obey and which they will permit themselves as a matter of conscience to disobey is to invite chaos. No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable.
503 F.2d at 107.
Since the Supreme Court's decision in Sparf and Hanson v. United States, 156 U.S. 51, 15 S. Ct. 273, 39 L. Ed. 343 (1895), federal courts have uniformly recognized the right and duty of the judge to instruct the jury on the law and the jury's obligation to apply the law to the facts, and that nullification instructions should not be allowed. It would serve no useful purpose to examine the history of nullification instructions further,[5] or to engage in debate concerning the relationship between the general verdict and the court's instructions. The jury returned a general verdict against Jameson finding him guilty on all counts.
Jameson further argues that the district court erred in refusing to define the words "fraudulent" and "income". 26 U.S.C. § 7205 makes it a crime to supply "false" or "fraudulent" information.[6] The government proceeded under the theory that the withholding exemption certificates submitted were false and the term "false" was defined by the district court. 26 U.S.C. § 7203 uses the term "gross income" which was also defined by the district court in an instruction. Jameson's arguments that further definitions were required have no merit.
Drefke argues that 26 U.S.C. §§ 7203 and 7205 giving rise to his conviction constitute punishment for failure to give self-incriminating information. Both the Supreme Court and the Eighth Circuit have held that the Fifth Amendment right against self-incrimination does not authorize individuals to refuse to disclose information concerning their income. United States v. Sullivan, 274 U.S. 259, 47 S. Ct. 607, 71 L. Ed. 1037 (1927); United States v. Russell, 585 F.2d 368 (8th Cir. 1978).
Drefke also argues that these sections violate the Thirteenth Amendment prohibition on involuntary servitude because they authorize imprisonment for nonpayment of debts. The Thirteenth Amendment, however, is inapplicable where involuntary servitude is imposed as punishment for a crime. Drefke was prosecuted and convicted for the violation of two federal offenses: failure to file income tax returns and filing false withholding exemption certificates.
Denying Jameson a non-jury trial was not error because the government refused to consent to Jameson's waiver of his right to a jury trial, as is required by Rule 23(a) of the Fed.R. of Crim.P.
Jameson argues that W-4 forms which he had signed in previous years and which were admitted into evidence against him were involuntary confessions. He contends that the district court violated 18 U.S.C. § 3501(b) (2) by failing to hold a hearing to determine whether these confessions were voluntary and admissible. It is evident that signed W-4 forms are not confessions and that 18 U.S.C. § 3501(a) has no relevance to this case.
Jameson's argument that the assistant district attorney created prejudice by referring to him in argument as "Mr. Drefke" is without merit. The attorney stated the occurrence was purely accidental and the reference to Drefke was insignificant because no member of the jury had knowledge of Drefke's trial.
Drefke has submitted over 240 pages of documents in addition to his brief and reply brief, which are labeled exhibits, addendums and supplements. Some of these additional documents are affidavits, earlier prepared petitions or briefs, a lengthy written report concerning jurisdiction to try criminal sanctions in the Internal Revenue Code, and some material that is simply additional argument. Jameson likewise has filed supplemental materials substantially in excess of the brief limitations and which similarly contain affidavits, newspaper articles and written statements of position. Some of the documents evidently were prepared by an information service. There is no showing that these particular items were before the district court. Justice Blackmun, then a Judge of this Court, rejected consideration of affidavits contained in the appendix of a brief in Stearns v. Hertz Corp., 326 F.2d 405, 408 (8th Cir. 1964) and stated:
Plaintiffs' attempt to buttress their statutory purpose argument with a state legislator's affidavit produced for the first time in an appendix to their appellate reply brief is of no consequence. In addition to serious questions of admissibility and of persuasiveness, [citations omitted] the affidavit is not to be considered here because it was not presented to the trial court. The appeal is to be determined upon the record below. Watson v. Rhode Island Ins. Co., 196 F.2d 254, 256 (5 Cir. 1952).
Drefke argues that Rule 28(j) of the Federal Rules of Appellate Procedure supports this filing. We interpret this rule to permit parties briefly to inform the court in a letter of pertinent authorities that have come to their attention after their briefs have been submitted. We do not read the rule to authorize the filing of lengthy printed or specially prepared materials such as both Drefke and Jameson have attempted to do in this case. As we must review the case on the record of the district court, these items may not be considered by the court.
We have considered these and all other allegations of error made in Jameson's and Drefke's pro se briefs. It is apparent that Jameson and Drefke have gone to great lengths to study a mass of materials that they believe relates to the tax laws, criminal procedures and constitutional rights. From perusing the materials attached to and filed with the briefs discussed in VIII, this was at best a wellspring of misinformation. Both had a substantial income and under misguided interpretation of the law chose not to assume the burden that is imposed on all of our citizens. Finding no error, we affirm their convictions on all counts.
ON MOTION FOR STAY OF MANDATE
Appellant Paul M. Drefke moves for a stay of mandate to permit application to the Supreme Court of the United States for a writ of certiorari and moves for release pending issuance of the court's mandate.
This court's opinion affirming Drefke's conviction was filed May 13, 1983. The record reveals that the United States District Attorney filed a motion to revoke bail at approximately 11:00 a.m., May 13, 1983, on the ground that Drefke's appeal is frivolous and taken for the purpose of delay, relying on 18 U.S.C. § 3148. The district court entered an order revoking bail, effective at 3:00 p.m. on May 13, 1983, upon motion of the United States "and for good cause shown." Drefke's motion recites that at approximately 4:00 p.m., May 13, 1983, he was arrested and incarcerated.
Our opinion plainly stated that at least two of the grounds asserted in the appeal by Drefke and co-appellant, Richard O. Jameson, were frivolous or without arguable merit. The opinion demonstrates that all of the issues raised were not only without merit, but without arguable merit, and thus legally frivolous. The order of the district court based on the motion that the appeal was frivolous and taken for delay was fully justified.
Even though the filing of the notice of appeal transferred jurisdiction of this case from the district court to the court of appeals, the district judge retains jurisdiction over a defendant for the limited purpose of reviewing, altering or amending the conditions under which that court released the defendant. The district court is empowered to revoke or forfeit the defendant's bond during pendency of an appeal for any of the reasons which would have supported an initial denial of the defendant's application for release. United States v. Black, 543 F.2d 35, 37 (7th Cir. 1976); United States v. Elkins, 683 F.2d 143, 145 (6th Cir. 1982).
The issues in the appeal presented to this court were frivolous and issues that may be raised in a petition for certiorari to the United States Supreme Court are also frivolous, and will be taken only for the purpose of delay.
Accordingly, the motion to stay mandate is denied, the order of the district court revoking bail is affirmed, and the motion for release pending issuance of mandate is denied.
[1] Before the Honorable Russell G. Clark, Chief Judge, Western District of Missouri
[2] In violation of 26 U.S.C. § 7203 which provides:
Any person required under this title ... to make a return, ... who willfully fails to make such return, ... shall ... be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than one year, or both, together with costs of prosecution.
[3] In violation of 26 U.S.C. § 7205 which provides:
Any individual required to supply information to his employer ... who willfully supplies false or fraudulent information ... shall ... upon conviction thereof, be fined not more than $10,000, or imprisoned not more than one year, or both.
[4] Section 3231 provides:
The district court of the United States shall have original jurisdiction, exclusive of the courts of the states, of all offenses against the laws of the United States.
[5] An exhaustive discussion is contained in United States v. Moylan, 417 F.2d 1002 (4th Cir. 1969) involving the trial of the Vietnam War protestors. The problems attendant on the use of nullification instructions in cases tried pro se was discussed in United States v. Dougherty, 473 F.2d 1113, 1137 (D.C. Cir. 1972)
[6] See note 2 supra
= = = = = = = = = = = = = = = = = = = =
Saying 26 CFR § 601.103, harumphhh, does not create an exemption from the income tax mandated by Federal statute.
26 C.F.R. PART 601--STATEMENT OF PROCEDURAL RULES
TITLE 26--Internal Revenue
CHAPTER I--INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY
(a) Collection procedure. The Federal tax system is basically one of self-assessment. In general each taxpayer (or person required to collect and pay over the tax) is required to file a prescribed form of return which shows the facts upon which tax liability may be determined and assessed. Generally, the taxpayer must compute the tax due on the return and make payment thereof on or before the due date for filing the return. If the taxpayer fails to pay the tax when due, the district director of internal revenue, or the director of the regional service center after assessment issues a notice and demands payment within 10 days from the date of the notice. In the case of wage earners, annuitants, pensioners, and nonresident aliens, the income tax is collected in large part through withholding at the source. Another means of collecting the income tax is through payments of estimated tax which are required by law to be paid by certain individual and corporate taxpayers. Neither withholding nor payments of estimated tax relieves a taxpayer from the duty of filing a return otherwise required. Certain excise taxes are collected by the sale of internal revenue stamps.
Are you saying too that this here source:www.loc.gov/item/uscode1988-001000002/ is bullshit? Cause this is where Meador got his information from and embellished upon it on his own website. The reason why I mention this link is because in one of my post on this thread, I had mentioned that if you desire to change the laws, you start with the removal of the fringed flag that sits in the courtroom. I referenced a link concerning that. You see, in our society, we don't use words as much as we do symbols. And in a courtroom setting a fringed flag is a specific symbol which tells us everything we should know before crossing the bar in that room. It has no business being in any courtroom setting at all nor a church or school. However, to my dismay I have witnessed this flag in just about every indoor setting. Meador mentioned this in his essay of flag etiquette and law.
Are you saying too that this here source: www.loc.gov/item/uscode1988-001000002/ is bullshit? Cause this is where Meador got his information from and embellished upon it on his own website. The reason why I mention this link is because in one of my post on this thread, I had mentioned that if you desire to change the laws, you start with the removal of the fringed flag that sits in the courtroom. I I referenced a link concerning that. You see, in our society, we don't use words as much as we do symbols. And in a courtroom setting a fringed flag is a specific symbol which tells us everything we should know before crossing the bar in that room. It has no business being in any courtroom setting at all nor a church or school. However, to my dismay I have witnessed this flag in just about every indoor setting. Meador mentioned this in his essay of flag etiquette and law.
Yes, convicted felon Meador and your link to convicted felon Meador are bullshit. Meador was not only a tax fraud, he was enshrined in the Quatloos Hall of Shame for his shameful efforts. He reached the pinnacle of achievement at being an asshole.
I quoted the U.S. Supreme Court stating, The Federal tax system is basically one of self-assessment," whereby each taxpayer computes the tax due and then files the appropriate form of return along with the requisite payment. 26 CFR § 601.103(a) (2003). They do not seem overly impressed with Meador's bullshit about 26 CFR § 601.103(a). I also provided you a quote of the whole section. You have proceeded to make no legal point, just harumph.
The cited flag law does not prohibit a fringe and contains no penalty for anything. An official opinion of the Attorney General and multiple court opinions have upheld the use of the gold fringe.
If the flag of the United States that is in the courtroom has a gold fringe, then the court is operating under martial law.
There is actually some interesting history behind this nonsense.
There is a federal statute that defines the American flag as thirteen horizontal stripes, alternate red and white, with a “union” of a blue field with one white star for each state. 4 U.S.C. §§ 1 and 2. The statutory definition says nothing about any kind of fringe of the kind often used on ceremonial flags displayed indoors, and at some point someone in the military wondered whether a flag with a fringe was “legal.” In 1925, the Attorney General issued an opinion that a fringe “does not appear to be regarded as an integral part of the Flag, and its presence cannot be said to constitute an unauthorized addition to the design prescribed by statute,” concluding that “The presence, therefore, of a fringe on military colors and standards does not violate any existing Act of Congress. Its use or disuse is a matter of practical policy, to be determined, in the absence of statute, by the Commander in Chief....” 34 Op. Atty. Gen. 483 (May 15, 1925).
Perhaps you can see where this is going? Because the Attorney General expressed the opinion that the President as Commander-in-Chief can put a fringe on military flags, tax protesters have leapt to the conclusion that all flags with fringes are military flags. This idea has been flatly rejected in numerous court decisions. See, e.g., McCann v. Greenway, 952 F. Supp. 647 (W.D. Mo. 1997); United States v. Greenstreet, 912 F.Supp. 224, 229 (N.D.Tex.1996) (“To think that a fringed flag adorning the courtroom somehow limits this Court’s jurisdiction is frivolous.”); Vella v. McCammon, 671 F.Supp. 1128, 1129 (S.D.Tex.1987) (rejecting argument that a federal court lacks jurisdiction to impose penalties for civil and criminal contempt because its flag is fringed); Commonwealth v. Appel, 438 Pa.Super. 214, 652 A.2d 341, 343 (1994) (rejecting argument that a fringed flag in a state courtroom conferred on the court admiralty or maritime jurisdiction).
In Leverenz v. Torluemlu, 1996 WL 272538, at *1 & n. 3 (N.D.Ill. May 20, 1996), the court noted that the complaint named as defendants a judge, a state attorney general, a doctor, several police officers from different communities, and 600 unnamed John and Jane Does and that “[s]ome idea of what is to come is provided by this legend that Leverenz attaches to his ‘Complaint’ heading: “This case is under the jurisdiction of the American flag of peace of the United States of America. No flags of war will serve this case jurisdiction.” (In National Auto. Dealers & Assocs. Retirement Trust v. Arbeitman, 89 F.3d 496, 502 (8th Cir.1996), a later motion in the Leverenz case was described as “bizarre.”)
Dan Evans nailed it on the fringed flag. And that fringed flag is the unspoken symbol putting all on notice who walk into any courtroom. This flag needs to be replaced with a lawful banner (or flag) that represents the republic of the united States of America.
As for Dan Meador's works, I still stand with what he has relayed to the public. Many people have elected to judge him for his literal works just as they did Irwin Schiff in his works, The Federal Mafia.
I find it interesting that in one of your threads you had posted about the recent ruling by the Fifth Circuit Court of Appeals (this may not be your link you posted) www.texastribune.org/2019...idual-mandate-obamacare/, that the IRS, had been collecting penalty fees all this time knowing this was indeed unconstitutional. This truly exposes the scam both from the United States government in their unlawful mandates but also makes the IRS vulnerable to a lawsuit as well. And it confirms why I posted that link from the Library of Congress concerning the lawful nature of the Title 50 Table of Contents and which are positive law and others that are not.
As for Dan Meador's works, I still stand with what he has relayed to the public. Many people have elected to judge him for his literal works just as they did Irwin Schiff in his works, The Federal Mafia.
I find it interesting that in one of your threads you had posted about the recent ruling by the Fifth Circuit Court of Appeals (this may not be your link you posted) www.texastribune.org/2019...idual-mandate-obamacare/, that the IRS, had been collecting penalty fees all this time knowing this was indeed unconstitutional. This truly exposes the scam both from the United States government in their unlawful mandates but also makes the IRS vulnerable to a lawsuit as well. And it confirms why I posted that link from the Library of Congress concerning the lawful nature of the Title 50 Table of Contents and which are positive law and others that are not.
Do you have any legal experts who are not convicted felons, or is that all you've got?
When cornered for being the rat bastard that he was, Irwin Schiff attempted to plead mental ilness, a delusional disorder. For shoveling this Shiff shit on this board, do you also claim your behavior is the result of your delusional disorder, or do you have a different excuse?
Dr. Ortega hospitalized him in October 2003 for depression and “high risk for suicide.” Dr. Ortega’s professional opinion was as follows:
“In my professional opinion I felt that the patient did not pay taxes because he was convinced that the law does not require him to do so. I think this is a delusional disorder.
[...]
His mental illness makes it “almost impossible… to persuade him he is wrong.” His opinions and thus his conduct is “driven by his mental illness.” Hayes Report, P. 6-7. According to Dr. Ortega he suffers from a “delusional disorder” which has convinced him “that the law does not require him to pay taxes.” Ortega Report, P. 4. Dr. Barry states that Schiff’s “belief system is not under voluntary control.” He has “little or no ability to alter his beliefs.” “Mr. Schiff’s behavior is not rational.” His conduct “is the product of a Delusional Personality Disorder.” Barry Report, P. 2.
Todd M. Leventhal 600 South Third Street Las Vegas, Nevada 89101 702 384 1990
Michael B. Nash 53 West Jackson Blvd. Suite 620 Chicago, Illinois 312 236 8788 Counsel for Defendant Irwin A. Schiff
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA
UNITED STATES OF AMERICA v. IRWIN A. SCHIFF
CR-S-04-119-KJD(LRL)
SCHIFF’S MOTION FOR DOWNWARD DEPARTURE
Defendant Irwin A. Schiff respectfully moves this Court for a downward departure pursuant to U.S.S.G. § 5K2.13. It states as follows:
“A downward departure may be warranted if (1) the defendant committed the offense while suffering from a b>significantly reduced mental capacity[/b]; and (2) the significantly reduced mental capacity contributed substantially to the commission of the offense. Similarly, if a departure is warranted under this police statement, the extent of the departure should reflect the extent to which the reduced mental capacity contributed to the commission of the offense.”
The Application Note defines “significantly reduced mental capacity.”
“‘Significantly reduced mental capacity’ means the defendant, although convicted, has a significantly impaired ability to (A) understand the wrongfulness of the behavior comprising the offense or to exercise the power of reason; or (B) control behavior that the defendant knows is wrongful” U.S.S.G § 5K2.13, Application Note 1
The burden is on the defendant to establish that he committed the offense while suffering from a reduced mental capacity, and that it contributed substantially to the commission of the offense. This is not a “but for” test. “(T)he policy statement rejects such a broad basis for departure by explicitly requiring that the defendant‘s reduced capacity merely ‘contribute to’ the offense.” United States v. Leandre, 132 F.3 796,803 (D.C. Cir. 1998). In United States v. Cantu, 12 F.3d 1506, 1515 (9th Cir. 1993) the Ninth Circuit noted that the other circuits which had addressed this issue were “unanimous in holding that the disorder need be only a contributing cause, not a but-for cause or sole cause” and it, therefore, “adopt(ed) this commonsense holding.”
There are two issues to examine. The first is whether defendant suffered from a significantly reduced mental capacity. The second is whether that reduced mental capacity contributed substantially to the commission of the offense. The answers to both questions are contained in the reports of Dr. Daniel S. Hayes, Ph.D., L.L.C. Clinical Psychologist, 2199 Ironwood Center Drive, Coeur d’Alene, ID 83814, Dr. Cynthia Barry, Ph.D. Licensed Psychologist PSY 10826, 1066 Saratoga Avenue Ste 100, San Jose, California 95129 and Dr. Luis Carlos Ortega, MD, Valley Hospital and Medical Center, 620 Shadow Lane, Las Vegas, NV 89106, which have previously been supplied to the Court.
Dr. Ortega hospitalized him in October 2003 for depression and “high risk for suicide.” Dr. Ortega’s professional opinion was as follows:
“In my professional opinion I felt that the patient did not pay taxes because he was convinced that the law does not require him to do so. I think this is a delusional disorder. He has this thing for a long time but no medication seems to make him believe otherwise.” Ortega Report, P.4.
Dr. Barry examined Schiff on January 6, 2004 at the request of his then attorney William A. Cohen. Her diagnosis was that Dr. Ortega was correct in concluding that Schiff suffered from Bipolar Disorder. She also stated that he suffered from Delusional Personality Disorder and an “Axis II personality disorder.” Her professional opinion was as follows:
“In my opinion, and in the history detailed above, Mr. Schiff’s distorted beliefs appear to have grown out of the stress of his business failures and his first, undiagnosed manic episode. However, once developed, these delusional beliefs have carried forward quite separate from the state of his bipolar mood swings and the impact of psychiatric medication. With very high probability they will continue unabated in the future. There is a significant element of paranoia in his MMPI protocol; however, he is extremely constricted emotionally so that underlying anger does not surface. His pseudo-rational belief system is confined to one area and this is no disorganization of thought. Further, it does not appear to originate from anti-social tendencies. However, the belief system is not under voluntary control. Individuals suffering from Delusional Disorder have little or no ability to alter their beliefs. Mr. Schiff acknowledges that even his two sons have advised him to pay his taxes and avoid the negative consequences. However, he states that he cannot do so because ‘I cannot pay what I do not owe.’ This despite the fact, that he recently experienced a suicidal depression serious enough to require hospitalization (related in part to recognition of a probable prison sentence if he is found guilty of the current charges.) In short, Mr. Schiff’s behavior is not rational. It is likely the product of a Delusional Personality Disorder that is not amenable to treatment and is unlikely to remit.” Barry Report, P. 2
Dr. Hayes examined Schiff on February 18, 2005 for six (6) hours at the request of Magistrate Judge Lawrence R. Leavitt, District of Nevada. The examination was “to provide an opinion regarding his (Schiff’s) competency to stand trial and desire to represent himself during that trial.” Hayes Report, P. 1. Dr. Hayes’ report gives a brief history of Schiff’s mental health history and Schiff’s version of his history with the Internal Revenue Service. Dr. Hayes concluded his narrative quoting Schiff as follows: “‘If I lose now, I’ll spend the rest of my life in jail.’
He is absolutely sure and confident that he will win this time because he will not ‘make the same mistakes… I know the law. I don’t need it interpreted to me. Why would I mislead my family and everyone else?.... I know I have a tiger by that tail and I have to beat them at this point…. I can’t pretend I don’t know this. It’s not right what they’re doing to the American people.” Hayes Report, P. 3.
Although Dr. Hayes noted that it was not within the scope of his evaluation “to formally assess Mr. Schiff’s cognitive capacity,” he noted that Schiff’s “cognitive functioning appeared to be impacted by what appeared to be a mood disorder, affecting his ability to attend and sustain concentration and focus outside his areas of preoccupation.” Hayes Report, P. 4.
Dr. Hayes’ report clearly established that Schiff suffered from a “significantly reduced mental capacity” and that it contributed substantially to these offenses. He reviewed Dr. Ortega’s and Dr Barry’s diagnosis and concluded that Schiff suffers from “Bipolar II Disorder, with recurrent major episodes and hypomanic episodes, without full inter-episode recovery.” Hayes Report, P. 7. In reaching this conclusion Dr. Hayes stated that Schiff’s beliefs regarding taxation set him “apart from the average individual” and that to a certain degree “Mr. Schiff’s focus on this topic (is) being driven by his mental illness.” Hayes Report, P. 7. The basis for Dr. Hayes’ conclusion are “the years he (Schiff) has devoted to this subject area, the research and documentation he believes to be in support of his beliefs, and the commitment and passion with which he hold his beliefs to be true.” Hayes Report, P. 6.
“He appears to have extremely rigid, fixed, inflexible, doggedly determined opinions and beliefs that cannot be changed by others’ reasoning. And, in his case, even punishment has not had a corrective impact in his thinking or behaviors. He appears impervious to any suggestions that he reconsider his conclusions or his actions, in part because of the thorough research he has conducted which has yielded evidence and facts to support his conclusions, coupled with the fact that he considers himself to be an “expert” with knowledge that supersedes that of any other individual claiming to have expertise in this subject area. Most people have beliefs that have a greater degree of flexibility and openness to change that does Mr. Schiff. Although some may have beliefs that parallel Mr. Schiff’s, they differ from him in that they are unwilling to jeopardize their freedom and suffer the consequences of their beliefs to the degree that Mr. Schiff has. As a result, it would be almost impossible at this point in his life to persuade him that he is wrong, particularly since he feels that there are few, if any, individuals who could match the breadth and depth of knowledge he appears to have as a result of the time, effort, focus, and intellect he has devoted to the subject. Any arguments against him are likely to be seen by him as naïve and sophomoric, and he is likely to dismantle any such arguments quickly and handily by quick reference to materials his opponent is unlikely to have at the ready for consideration and rebuttal.” Hayes Report, P. 6-7.
The purpose of 5K2.13 is to treat with “lenity” a defendant whose mental illness contributes to his offense. “The defendant’s mental condition and the circumstances of the offense must be undertaken ‘with a view of lenity, as section 5K2.13 implicitly recommends.’” United States v. Cantu, 12 F.3d 1506, 1511 (9th Cir. 1993), quoting United States v. Chapman, 986 F.2 1446 1454 (D.C. Cir. 1993). Cantu stated that lenity is appropriate because the purpose of 5K2.13 is to treat with “compassion” those with a reduced mental capacity which contributed to their offense. United States v. Cantu, at 1511. See also United States v. Leandre, at 804-805. According to Judge Orlofsky in United States v. Checoura, 176 F Supp 310, 315, (D.C. N.J., 2005) 5K2.13 is an “encouraged departure.” The lynchpin is a defendant’s ability to reason and process information and to voluntarily form the intent to act in a criminal manner. United States v. Withers, 100 F.3 1142, 1148 (4th Cir. 1996). The basis for 5K2.13 is the inability of an individual to fully understand ordinary concepts which others are able to grasp. It is a lack of “full intellectual functioning” or the ability to make “reasoned judgments.” United States v. Cantu, at 1512-1513.
As noted by Dr. Hayes, Schiff’s conduct was a result of extremely rigid, fixed, inflexible doggedly determined opinions and beliefs that cannot be changed by others’ reasoning.” He is “impervious to any suggestions.” His mental illness makes it “almost impossible… to persuade him he is wrong.” His opinions and thus his conduct is “driven by his mental illness.” Hayes Report, P. 6-7. According to Dr. Ortega he suffers from a “delusional disorder” which has convinced him “that the law does not require him to pay taxes.” Ortega Report, P. 4. Dr. Barry states that Schiff’s “belief system is not under voluntary control.” He has “little or no ability to alter his beliefs.” “Mr. Schiff’s behavior is not rational.” His conduct “is the product of a Delusional Personality Disorder.” Barry Report, P. 2. In United States v. Weedle, 30 F.3 532, 540 (4th Cir. 1994) the Fourth Circuit stated explicitly that “U.S.S.G § 5K2.13 is intended to create lenity for those who cannot control their actions but are not actually dangerous.” In United States v. Leandre, the court spoke of “the obligation to treat with lenity defendants who suffer significantly reduced mental capacity.” United States v. Leandre, at 804. In doing so the Leandre court cited United States v. Cantu, a Ninth Circuit case, in which the court stated “(t)he goal of the guideline is lenity toward defendants whose ability to make reasoned decisions is impaired.” United States v. Cantu, at 1511.
There is a very practical side of this section of the Guidelines. Judge Easterbrook in his dissenting opinion in United States v. Poff, 926 F.2d 588, 595 (7th Cir. 1991) noted that legal sanctions are ineffective in dealing with persons suffering from mental illness. When “a disturbed person’s conduct is non-violent… incapacitation incarceration is less important.” United States v. Poff, at 595. In other words, “the power of specific deterence has little hold over an individual defendant whose conduct is somewhat involuntary.” United States v. Cheroura, at 314.
Schiff’s mental illness is significant and clearly contributed to his commission of the offenses here. Three reputable doctors have stated so unequivocally, one of whom was engaged by the Court. A downward departure is not only appropriate here; to do otherwise is to ignore the mandate of the guidelines.
Respectfully Submitted,
s/Michael B. Nash
Michael B. Nash 53 West Jackson Blvd. Suite 620 Chicago, IL 60604 (312) 236-8788
As for Dan Meador's works, I still stand with what he has relayed to the public. Many people have elected to judge him for his literal works just as they did Irwin Schiff in his works, The Federal Mafia.
Irwin Schiff, another convicted felon dirtbag enshrined in the Quatloos Hall of Shame.
Irwin A SCHIFF v United States, 919 F2d 830 (2nd Cir, 1990)
Irwin A. Schiff, Appellant, v. United States of America, Appellee, 919 F.2d 830 (2d Cir. 1990)
US Court of Appeals for the Second Circuit - 919 F.2d 830 (2d Cir. 1990)
Argued Nov. 13, 1990. Decided Nov. 21, 1990
Irwin A. Schiff, New York City, pro se.
Joel A. Rabinovitz, Dept. of Justice, Washington, D.C. (Stanley A. Twardy, Jr., U.S. Atty., Hartford, Conn., Shirley D. Peterson, Asst. Atty. Gen., Gary A. Allen, and Ann B. Durney, Dept. of Justice, Washington, D.C., on the brief), for appellee U.S.
Before FEINBERG, TIMBERS and MINER, Circuit Judges.
PER CURIAM:
Appellant Irwin A. Schiff appeals from a summary judgment entered September 13, 1989, in the District of Connecticut, Warren W. Eginton, District Judge, in favor of appellee United States in an action commenced by Schiff challenging the assessment and collection of income tax deficiencies owed for the years 1976 through 1978 and penalties imposed.
On appeal, Schiff contends that (1) the tax was collected in violation of the taxing and due process clauses of the Constitution; (2) the tax deficiencies were not properly assessed and collected; (3) the district court erred in granting summary judgment on the issue of civil fraud penalties; and (4) the district judge erred in failing to recuse himself since he ruled against Schiff in a previous case. The government seeks costs and damages for a frivolous appeal.
For the reasons that follow, since we agree with the district court that there is no genuine issue of material fact, we affirm the summary judgment of the district court and impose sanctions on Schiff for bringing a frivolous appeal.
We shall summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal.
Schiff is no stranger to this court. This is another in a series of cases involving Schiff's refusal to pay income taxes.E.g., United States v. Schiff, 876 F.2d 272 (2 Cir. 1989); United States v. Schiff, 801 F.2d 108 (2 Cir. 1986), cert. denied, 480 U.S. 945 (1987); Schiff v. Simon & Schuster, Inc., 780 F.2d 210 (2 Cir. 1985); Schiff v. Simon & Schuster, Inc., 766 F.2d 61 (2 Cir. 1985) (per curiam); Schiff v. Commissioner, 751 F.2d 116 (2 Cir. 1984) (per curiam); United States v. Schiff, 647 F.2d 163 (2 Cir.), cert. denied, 454 U.S. 835 (1981); United States v. Schiff, 612 F.2d 73 (2 Cir. 1979). The instant appeal arises from Schiff's failure to pay income taxes for the years 1976 through 1978.
Schiff filed no tax returns at all for the years 1977 and 1978. In April 1977, Schiff did file a Form 1040 with the Internal Revenue Service (IRS) for the year 1976. That form set forth his name, address and social security number. He did not provide financial information in the relevant portions of the return, but instead placed asterisks in the columns and typed in the margin "I DO NOT UNDERSTAND THIS RETURN NOR THE LAWS THAT MAY APPLY TO ME. THIS MEANS THAT I TAKE SPECIFIC OBJECTION UNDER THE 4th or 5th AMENDMENTS OF THE U.S. CONSTITUTION TO THE SPECIFIC QUESTION." On page two of the return, Schiff also placed asterisks in the columns and typed at the bottom "THIS MEANS THAT SPECIFIC OBJECTION IS TAKEN TO THE SPECIFIC QUESTION ON THE GROUNDS OF THE 4th AND 5th AMENDMENTS OF THE UNITED STATES CONSTITUTION."
Schiff attached a letter to his Form 1040 addressed to the District Director of the IRS. That letter stated that Schiff had received federal reserve notes in 1976, which he distinguished from taxable dollars. Schiff concluded that federal reserve notes were worthless since he could exchange them only for other federal reserve notes, but not for gold or silver. In support of his contention that federal reserve notes are not dollars, Schiff attached a letter from Russell L. Munk, Assistant General Counsel of the Department of the Treasury, that so stated. That letter also stated that the fact that federal reserve notes could not be exchanged for gold or silver did not render them worthless. The letter concluded by warning Schiff that "there is no legal basis for an arguement [sic] that a taxpayer need not file a return of his income, expressed in dollars, on the ground that Federal Reserve Notes are not 'dollars'...."
On December 2, 1982, the IRS sent Schiff a notice of deficiency with explanations for the years 1976 through 1978. Although the notice informed Schiff of his right of review, Schiff did not challenge those determinations in the Tax Court. Accordingly, on April 1, 1983, the IRS assessed deficiencies in tax plus interest and penalties for failure to pay estimated taxes and for fraud for the years 1976 through 1978. Schiff was notified of the assessments by IRS Form 3552. He was assessed a total of $41,837.35 for 1976, $39,760.99 for 1977, and $110,247.89 for 1978. The form notified Schiff that payment was due within ten days. On April 18, 1983, having received no response from Schiff, the IRS sent him a final notice stating that enforcement action would be taken if he did not make payment within ten days.
Schiff did not satisfy the tax deficiency. The IRS therefore levied on royalties owed to him by Simon & Schuster, the publisher of a book he wrote entitled "How Anyone Can Stop Paying Income Taxes." Schiff's attempt to stop the IRS collection effort failed. Schiff v. Simon & Schuster, Inc., 780 F.2d 210 (2 Cir. 1985).
On May 11, 1985, Schiff filed claims for refunds of the amounts the IRS had collected for the years 1976 through 1978. The IRS denied those claims. Schiff commenced the instant action on October 9, 1986, seeking refunds for the years in question. On April 20, 1989, Schiff moved for summary judgment. The government filed a cross-motion for summary judgment on June 12, 1989. On September 6, 1989, the district court granted the government's cross-motion for summary judgment. Judgment was entered on September 13, 1989. Schiff filed two subsequent motions for reconsideration. Both were denied.
This appeal followed.
We review the district court's grant of summary judgment de novo. EAD Metallurgical, Inc. v. Aetna Cas. & Sur. Co., 905 F.2d 8, 10 (2 Cir. 1990). Summary judgment is proper when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Since summary judgment was granted in favor of the government, we consider the evidence in the light most favorable to Schiff. E.g., EAD Metallurgical, supra, 905 F.2d at 10.
With the foregoing in mind, we turn to the merits of Schiff's appeal. We hold that all of his claims are completely lacking in merit.
Initially, Schiff's contentions that the imposition of a validly enacted income tax by Congress violates the taxing clauses of the Constitution have been rejected previously. E.g., Brushaber v. Union Pacific R.R. Co., 240 U.S. 1, 19-20 (1916); Schiff v. Commissioner, supra, 751 F.2d at 117; Ficalora v. Commissioner, 751 F.2d 85, 87 (2 Cir. 1984), cert. denied, 471 U.S. 1005 (1985).
Schiff's due process claim likewise is frivolous. He contends that the assessments amounted to a taking of property without due process. The notice of deficiency sent to Schiff clearly informed him of his right to appeal to the Tax Court. Such an appeal would have provided Schiff with an opportunity to be heard and to contest the IRS' calculations. Schiff chose not to avail himself of that opportunity.
We turn next to Schiff's claims regarding the propriety of the IRS' assessments. First, Schiff contends that since 26 U.S.C. § 6201(a) (1) (1988) requires that assessments be made from returns or lists, the IRS must prepare a substitute return pursuant to 26 U.S.C. § 6020(b) (1988) prior to assessing deficient taxes. It is clear, however, that when a taxpayer does not file a tax return, it is as if he filed a return showing a zero amount for purposes of assessing a deficiency. There is no requirement that the IRS complete a substitute return. Roat v. Commissioner, 847 F.2d 1379, 1381 (9 Cir. 1988); 26 C.F.R. Sec. 301.6211-1(a) (1990); see also Laing v. United States, 423 U.S. 161, 174 (1976) ("Where there has been no tax return filed, the deficiency is the amount of tax due").
Schiff also contends that the IRS must use Form 17 to provide notice of a deficiency and make a demand for payment. The Secretary of the Treasury is required to provide notice of a deficiency and make a demand for payment within 60 days of an assessment. 26 U.S.C. § 6303(a) (1988). In the instant case, the IRS gave timely notice to Schiff, using Form 3552. That form clearly stated the amount due and that payment must be made within 10 days. There is no requirement that the Secretary use a specific form to provide notice of a deficiency to a taxpayer. Planned Inv., Inc. v. United States, 881 F.2d 340, 343-44 (6 Cir. 1989).
Schiff further contends that the assessment against him for taxes owed for the year 1976 was barred by the statute of limitations. Generally, an assessment must be made within three years of the filing of a tax return. 26 U.S.C. § 6501(a) (1988). When no return is filed, however, an assessment may be made at any time. 26 U.S.C. § 6501(c) (3) (1988). Schiff's tax return for 1976 set forth no financial information at all. For statute of limitations purposes, such a return is treated as if no return was filed. Morgan v. Commissioner, 807 F.2d 81, 82 (6 Cir. 1986).
In short, we find no merit whatsoever in any of Schiff's claims with respect to the propriety of the IRS' assessments and their collection.
We turn next to Schiff's contention that the district court erred in granting summary judgment with respect to the imposition of civil fraud penalties. He contends that the imposition of such a penalty cannot be based solely on his failure to file a tax return. Stoltzfus v. United States, 398 F.2d 1002, 1005 (3 Cir. 1968), cert. denied, 393 U.S. 1020 (1969).
The fraud penalty can be imposed if the Commissioner proves "by clear and convincing evidence that taxpayers acted with an intent to evade paying taxes." Douge v. Commissioner, 899 F.2d 164, 168 (2 Cir. 1990). Fraud can be proved by circumstantial evidence. Id. "Such evidence may include (1) consistent and substantial understatement of income, (2) failure to maintain adequate records, (3) failure to cooperate with an IRS investigation, (4) inconsistent or implausible explanations of behavior and (5) awareness of the obligation to file returns, report income and pay taxes." Id.
The frivolous nature of this appeal is perhaps best illustrated by our conclusion that Schiff is precisely the sort of taxpayer upon whom a fraud penalty for failure to pay income taxes should be imposed. It is an understatement to say that Schiff has consistently and substantially under reported his income. The fact is that "he has not filed tax returns since 1973." Schiff v. Simon & Schuster, Inc., supra, 780 F.2d at 211.
A brief review of Schiff's history in this court provides substantial support for our holding that his failure to file tax returns for the years 1976 through 1978 was a fraudulent attempt to evade taxes. He was convicted of willfully failing to file tax returns for the years 1974 and 1975. We affirmed that conviction without opinion, United States v. Schiff, supra, 647 F.2d 163, and the Supreme Court denied certiorari. 454 U.S. 835. In addition, tax deficiencies and civil penalties were assessed against Schiff for his failure to file tax returns for those years. Schiff v. Commissioner, supra, 751 F.2d at 117. Schiff also was convicted of attempted tax evasion for the years 1980 through 1982 and for failing to file a corporate income tax return for the year 1981, United States v. Schiff, supra, 801 F.2d 108, and again the Supreme Court denied certiorari. 480 U.S. 945. Moreover, Schiff's background makes it inconceivable that he was unaware of his obligation to file returns and pay taxes. In light of Schiff's repeated attempts to evade his obligation to pay income taxes, we hold that summary judgment was justified on the issue of whether civil fraud penalties were properly assessed because of his failure to file returns for the years 1976 through 1978.
We hold that there was no genuine issue of material fact to preclude the district court from granting summary judgment in favor of the government.
This brings us to Schiff's contention that the district judge erred in failing to recuse himself. Schiff contends that the judge should have recused himself since he ruled against Schiff in Schiff's attempt to prevent Simon & Schuster from cooperating in the IRS attachment proceeding. This contention is totally lacking in merit. Prior adverse rulings "without more, ... do not provide a reasonable basis for questioning a judge's impartiality." United States v. Wolfson, 558 F.2d 59, 64 (2 Cir. 1977). There is nothing in the record to suggest that the judge was unable to render an unbiased decision. Indeed, were we to adopt the bright line rule that Schiff suggests, litigious individuals might run out of judges before whom their cases could be heard.
We hold that the district judge did not err in deciding not to recuse himself.
Having held that Schiff's contentions are frivolous, we turn now to the matter of sanctions. We do not undertake lightly a decision to impose sanctions pursuant to Fed. R. App. P. 38. However, " [r]eady as we are to protect and enforce [a litigant's] rights, we must be equally willing to employ lawful sanctions as a means of preventing needless waste of the court's time and resources." Acevedo v. INS, 538 F.2d 918, 920 (2 Cir. 1976) (per curiam).
As demonstrated above, we repeatedly have rejected Schiff's attacks on the tax system, which he has raised in this Court on numerous occasions. Indeed, we imposed sanctions on Schiff for asserting, on his appeal from the assessment of tax deficiencies resulting from his failure to pay income taxes for the years 1974 and 1975, issues very similar to the ones raised on the instant appeal. Schiff v. Commissioner, supra, 751 F.2d at 117. Moreover, we previously have described Schiff as "an extremist who reserve [s] the right to interpret the decisions of the Supreme Court as he read [s] them from his layman's point of view regardless of and oblivious to the interpretations of the judiciary." United States v. Schiff, supra, 612 F.2d at 75.
We conclude that the instant appeal is yet another in a series of frivolous appeals brought by Schiff "to make public his radical views on tax reform." Schiff v. Commissioner, supra, 751 F.2d at 117. We cannot countenance Schiff's continued resort to this Court to "rehash ... his basic thesis: [that] he does not have to pay taxes." United States v. Schiff, supra, 876 F.2d at 275. "The payment of income taxes is not optional ... and the average citizen knows that the payment of income taxes is legally required." Id. (citations omitted).
The imposition of sanctions against litigants who continuously abuse the appellate process is justified. E.g., In re Hartford Textile Corp., 681 F.2d 895, 897 (2 Cir. 1982) (per curiam), cert. denied, 459 U.S. 1206 (1983); In re Hartford Textile Corp., 659 F.2d 299, 303-06 (2 Cir. 1981) (per curiam), cert. denied, 455 U.S. 1018 (1982); Browning Debenture Holders' Comm. v. DASA Corp., 605 F.2d 35, 40 n. 5 (2 Cir. 1979). We hold that " 'the situation here is one of those "highly unusual" instances which permit the imposition of sanctions under Rule 38 because of "a clear showing of bad faith".' " In re Hartford Textile Corp., supra, 659 F.2d at 305 (citation omitted). We order that double costs in this Court and $5,000 damages be awarded against Schiff, to be paid to the United States.
"To make the sanction effective and thereby protect the processes of a court from abuse, a litigant against whom Rule 38 sanctions have been imposed must comply with those sanctions before being permitted to pursue new matters in that court." Schiff v. Simon & Schuster, Inc., supra, 766 F.2d at 62 (footnote omitted). Accordingly, we further order that the clerk of this Court shall not accept any more papers from Schiff for filing except upon proof of payment of the above sanction. E.g., In re Martin-Trigona, 795 F.2d 9, 12 (2 Cir. 1986) (per curiam); Johl v. Johl, 788 F.2d 75, 76 (2 Cir.) (per curiam), cert. denied, 479 U.S. 858 (1986); Schiff v. Simon & Schuster, Inc., supra, 766 F.2d at 62; In re Hartford Textile Corp., supra, 681 F.2d at 897-98. This prohibition against further filings does not apply to any petition for rehearing, petition for rehearing en banc, or petition for certiorari—in this case.
We order that the mandate issue forthwith; that the judgment of this Court include the provisions for double costs and damages as ordered above; that execution on the judgment of this Court for damages issue forthwith; and that execution on the judgment of this Court for costs issue within ten days of the date of the taxation of costs according to law.In re Hartford Textile Corp., supra, 659 F.2d at 305-06.
To summarize:
We hold that there was no genuine issue of material fact to preclude the district court from granting summary judgment in favor of the government. We further hold that the district judge did not err in declining to recuse himself. In light of the frivolous nature of this appeal and Schiff's pattern of bringing such appeals, we order that double costs in this Court and $5,000 damages be awarded against Schiff, to be paid to the United States. We further order that the clerk of this Court shall not accept any more papers for filing from Schiff except upon proof of payment of the above sanction.
Affirmed with double costs and $5,000 damages against Schiff.
As for Dan Meador's works, I still stand with what he has relayed to the public. Many people have elected to judge him for his literal works just as they did Irwin Schiff in his works, The Federal Mafia.
Irwin Schiff, another convicted felon dirtbag enshrined in the Quatloos Hall of Shame.
FOR IMMEDIATE RELEASE MONDAY, OCTOBER 24, 2005 WWW.USDOJ.GOV TAX (202) 514-2007 TDD (202) 514-1888
PROFESSIONAL TAX RESISTER IRWIN SCHIFF AND TWO ASSOCIATES CONVICTED IN LAS VEGAS TAX SCAM
WASHINGTON, D.C. - A federal jury in Las Vegas, Nevada convicted Irwin Schiff and two associates, Cynthia Neun and Lawrence Cohen, of aiding and assisting in the preparation of false income tax returns filed by other taxpayers in connection with a tax scam, and convicted Schiff and Neun of conspiring to defraud the United States, the Department of Justice and the Internal Revenue Service (IRS) announced today. Schiff was convicted on all counts, including income tax evasion and of filing false income tax returns for the years 1997 through 2002, and Neun was convicted of willfully failing to file federal income tax returns, Social Security disability fraud, and theft of government property in connection with Neun’s improper receipt of Social Security disability benefits.
According to the indictment and the evidence introduced at trial, beginning in 1995, the defendants directed thousands of taxpayers to file false federal income tax returns with the IRS that reported zero taxable income in spite of the taxpayers earning large amounts of reportable income. The defendants operated the scam through Freedom Books-a business owned by Schiff-that sold books, tapes, and packets encouraging customers not to pay income tax. According to a government witness who testified at trial, between 1997 and 2002 Freedom Books sold more than $4.2 million in products that promoted Schiff’s “anti-tax” scheme.
“People who evade their tax obligations, or encourage or enable others to do so, are cheating all law-abiding taxpayers,” said Eileen J. O’Connor, Assistant Attorney General for the Justice Department’s Tax Division. “The Department of Justice will prosecute these crimes, and juries will convict the offenders.”
The Justice Department filed a civil suit in the same court against Schiff, Neun, and Cohen in March 2003, and the court granted a temporary restraining order barring them from advertising or selling Schiff’s “zero-income tax return” plan; preparing tax returns for others; and assisting others to violate the tax law, including by “selling services, books or other materials that provide direction about how to fill out fraudulent or false tax forms. . . .” The preliminary injunction was affirmed after the defendants’ appeal to the U.S. Court of Appeals for the Ninth Circuit. The U.S. Supreme Court this month declined to hear Schiff’s challenge to the Ninth Circuit decision. The Justice Department will ask the district court to convert the preliminary injunction into a permanent one. More information about the injunction may be found on the Tax Division website at http://www.usdoj.gov/tax/txdv03357.htm, and http://www.usdoj.gov/tax/txdv03167.htm.
Evidence presented at trial proved that Schiff evaded the payment of more than $2 million in taxes he owed the IRS from 1979 through 1985. Schiff concealed income he earned from Freedom Books, in part by using offshore bank accounts and conducting financial transactions through secret “warehouse” banking services. The evidence also showed that Schiff used debit cards issued by offshore banks to obtain funds he transferred offshore, that he opened bank accounts using multiple tax identification numbers, and that he titled his ownership of a car in the name of a Pennsylvania corporation.
That marked the third time Schiff had been convicted of tax offenses. “Paying taxes is the price of citizenship. After three strikes, I would hope that even Mr. Schiff realizes that he has struck out,” said IRS Commissioner Mark W. Everson.
Mr. Schiff faced a maximum sentence of 43 years in prison and $3.25 million in fines andwas remanded to the custody of the U.S. Marshals Service.
FOR IMMEDIATE RELEASE FRIDAY, FEBRUARY 24, 2006 WWW.USDOJ.GOV TAX (202) 514-2007 TDD (202) 514-1888
PROFESSIONAL TAX RESISTER SENTENCED TO MORE THAN 12 YEARS IN PRISON FOR TAX FRAUD
WASHINGTON, D.C. - Longtime tax protestor Irwin Schiff was sentenced in federal district court in Las Vegas to total of 163 months in prison—151 months for tax fraud and an additional 12 months for contempt of court—the Department of Justice and the Internal Revenue Service (IRS) announced today. In addition, Schiff was ordered to pay more than $4.2 million in restitution and to serve three years of supervised release.
In October 2005, Schiff was convicted of conspiring to defraud the United States, aiding and assisting in the preparation of false income tax returns, filing his own false tax returns, and evading the payment of millions of dollars in back taxes owed. This marks the third time Schiff has been convicted for committing federal tax offenses. Schiff previously has spent more than four years in jail for his tax crimes. Two associates of Schiff, Cynthia Neun and Lawrence Cohen, were also convicted of aiding and assisting other taxpayers in the filing of false tax returns. On February 3, 2006, Cohen was sentenced to 33 months in prison. Neun was sentenced yesterday to 68 months in prison and ordered to pay $1.1 million in restitution.
“Last October, a jury of his peers found Mr. Schiff guilty of serious tax crimes related not only to his own tax evasion, but also to his encouraging and enabling others to file false returns. The prison sentence handed down today reflects the seriousness of those crimes,” said Eileen J. O’Connor, Assistant Attorney General for the Justice Department’s Tax Division. “The Department of Justice is working vigorously to vindicate the interests of law-abiding Americans who file returns and pay the taxes the law requires.”
“Mr. Schiff earned this sentence,” said IRS Commissioner Mark Everson. “For years he has preyed on others by holding out false hope that they need not pay their taxes.”
According to the indictment and the evidence introduced at trial, beginning in 1995, Schiff aided thousands of taxpayers in the filing of false federal income tax returns with the IRS that reported zero taxable income in spite of the taxpayers earning reportable income. Schiff owned and operated Freedom Books, a business that sold books, tapes, and informational packages encouraging customers not to pay income tax. According to a government witness who testified at trial, between 1997 and 2002, Freedom Books sold more than $4.2 million of these products.
The evidence presented at trial also proved that Schiff evaded the payment of more than $2 million in taxes he owed the IRS from 1979 through 1985. Schiff concealed income he earned from Freedom Books, in part, by using offshore bank accounts and conducting financial transactions through secret “warehouse” banking services. The evidence also showed that Schiff used debit cards issued by offshore banks to obtain funds he transferred offshore, that he opened bank accounts using multiple tax identification numbers and that he concealed his wealth by hiding his assets through the use of nominees.
Assistant Attorney General O’Connor thanked Tax Division Trial Attorneys Jeffrey A. Neiman, David J. Ignall, and Melissa Schraibman, who prosecuted the case. She also thanked Criminal Investigation Special Agents David Holland, Adam Steiner, and Autumn Woodard of the IRS, and the U.S. Attorney’s Office for the District of Nevada, whose assistance was essential to the successful investigation and prosecution of the case.
And the obvious answer to all of it is to place all of Mr. Schiff's possesions and property, and income, in the possession of a legal guardian, who will properly file Mr. Schiff's income taxes, and will properly liquidate his property, as necessary, to pay for such back taxes, fees and penalties he owes.
The idea that gold fringe on a flag, outside of the military, has ANY legal or regulatory significance whatsoever, is belief in witchcraft and magic.
Nah, when Irwin Schiff had to 'splain hisself, he resorted to a claim of Delusional Personality Disorder. The claim failed. Irwin Schiff died in prison. There is nothing like a tax protester who idolizes a convicted tax fraudster who claimed to a court that “a ‘delusional disorder’ [] has convinced him ‘that the law does not require him to pay taxes.’”
Dr. Ortega hospitalized him in October 2003 for depression and “high risk for suicide.” Dr. Ortega’s professional opinion was as follows:
“In my professional opinion I felt that the patient did not pay taxes because he was convinced that the law does not require him to do so. I think this is a delusional disorder.
[...]
His mental illness makes it “almost impossible… to persuade him he is wrong.” His opinions and thus his conduct is “driven by his mental illness.” Hayes Report, P. 6-7. According to Dr. Ortega he suffers from a “delusional disorder” which has convinced him “that the law does not require him to pay taxes.” Ortega Report, P. 4. Dr. Barry states that Schiff’s “belief system is not under voluntary control.” He has “little or no ability to alter his beliefs.” “Mr. Schiff’s behavior is not rational.” His conduct “is the product of a Delusional Personality Disorder.” Barry Report, P. 2.
This crazy claim about gold fringe goes back at least 25 years that I know of.
It was debunked at least 23 years ago, in Greenstreet.
United States v. Greenstreet, 912 F. Supp. 224 (N.D. Tex. 1996)
US District Court for the Northern District of Texas - 912 F. Supp. 224 (N.D. Tex. 1996)
January 18, 1996
912 F. Supp. 224 (1996)
UNITED STATES of America, Plaintiff, v. Gale E. GREENSTREET, LuAnn Taylor, County Clerk of Dallam County, Texas, and LeRoy Hutton, County Clerk of Randall County, Texas, Defendants.
No. 2:95-CV-119-J.
United States District Court, N.D. Texas, Amarillo Division.
January 18, 1996.
*225 Nancy Koenig, Assistant U.S. Attorney, Lubbock, TX, Gordon Bryant, Asst. U.S. Attorney, Amarillo, TX, for plaintiff.
Gale Greenstreet, Dalhart, TX, pro se.
Thomas B. Jones, III, Randall Co. Asst. Dist. Atty., Canyon, TX, William Hunter, Greg Oelke, Hunter & Oelke, Dalhart, TX, for defendants.
ORDER
MARY LOU ROBINSON, District Judge.
Before the Court is Plaintiff United States of America's "Motion for Summary Judgment," filed October 31, 1995. For the following reasons, Plaintiff's motion is GRANTED.
I. BACKGROUND
This case stems from the filing of five UCC-1 financing statements against three U.S. Department of Agriculture employees named as "debtors."[1] The financing statements were filed in Dallam and Randall counties by Defendant Greenstreet and Lawrence Wayne Garth, deceased. None of the federal employees named in the statements were, or ever had been, indebted to either Greenstreet or Garth.
On June 22, 1995, the United States of America, by and through the United States Attorney for the Northern District of Texas, filed its Complaint in this action. The Complaint seeks declaratory and injunctive relief. The Plaintiff desires that the financing statements at issue be declared void ab initio by the Court. The United States also seeks injunctive relief authorizing and directing the Defendant County Clerks to remove and expunge from the county records the fraudulent financing statements submitted for filing by Garth and Greenstreet. Further, the Complaint requests relief permanently enjoining Defendant Greenstreet from presenting similar financing statements for filing in the future.
It appears that as a form of retribution, retaliation, or harassment, Defendant Greenstreet and Mr. Garth caused financing statements to be filed against specific Farmers Home Administration (FmHA) employees. Both Greenstreet and Garth had financed property through the FmHA in the past. Greenstreet defaulted on a promissory note; therefore, his land was foreclosed upon and subsequently sold. Garth was convicted of conversion of property pledged to the FmHA. He was sentenced by this Court in 1985 to serve two years in a federal correctional institution.
Defendant Greenstreet has filed several documents with the Court since this matter was initiated against him. The filings have routinely been voluminous and difficult to comprehend. Apparently, Mr. Greenstreet is of the opinion that "Our One Supreme *226 Court, Republic of Texas, in and for Dallam County" maintains exclusive jurisdiction over the case. He has challenged the Court's jurisdiction and venue, and moved the Court to dismiss the case against him. Mr. Greenstreet's requests were denied.
On October 31, 1995, the United States of America moved that this Court grant it summary judgment. Defendant Greenstreet responded by filing a document entitled "Notice of No Venue to This Statutory, Admiralty Court." Parsing the Response's imprecise, vague, argumentative, conclusory, and sometimes unintelligible prose, this Court gleans that Mr. Greenstreet objects to the Government's position on the following grounds. First, Greenstreet reasserts that this Court lacks jurisdiction over his case and that venue is improper. Further, he maintains that since no one filed a claim of any right, title, or interest in the property he formerly owned in accordance with an Order from "Our One Supreme Court" for the Republic of Texas, he should thus prevail by default. Additionally, Greenstreet argues that since all relevant issues have already been adjudicated by a court of "superior and competent jurisdiction" (common law court for the Republic of Texas), any action now brought by the Plaintiff should be barred by the doctrine of res judicata. Finally, Greenstreet contends that Plaintiff's motion should be dismissed as contemptuous, as it is in violation of prior court orders issued by Our One Supreme Court for the Republic of Texas. To support his position, Defendant Greenstreet filed findings of fact signed by 12 "jurors" which resulted from his action to quiet title before a court of common law venue.
II. SUMMARY JUDGMENT STANDARD
The United States Court of Appeals for the Fifth Circuit set forth the standard for summary judgment in Hibernia Nat'l Bank v. Carner, 997 F.2d 94 (5th Cir. 1993). In reviewing a motion for summary judgment, the Court must ask whether,
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. FED. R.CIV.P. 56(c). In making this determination, we view all of the evidence in the light most favorable to the party opposing the motion for summary judgment. Reid v. State Farm Mutual Insurance Co., 784 F.2d 577, 578 (5th Cir.1986).
To defeat a motion for summary judgment, Rule 56(e) of the Federal Rules of Civil Procedure requires the non-moving party to set forth specific facts sufficient to establish that there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). While the mere allegation of the existence of a dispute over material facts is not sufficient to defeat a motion for summary judgment, if the evidence shows that a reasonable jury could return a verdict for the non-moving party, the dispute is genuine. Id. at 247-48, 106 S. Ct. at 2510.
On the other hand, if a rational trier of fact, based upon the record as a whole, could not find for the non-moving party, there is no genuine issue for trial. Amoco Production Co. v. Horwell Energy, Inc., 969 F.2d 146, 147-48 (5th Cir.1992). Such a finding may be supported by the absence of evidence necessary to establish an essential element of the non-moving party's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986); Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825, 113 S. Ct. 82, 121 L. Ed. 2d 46 (1992); International Ass'n of Machinists & Aerospace Workers, Lodge No. 2504 v. Intercontinental Mfg. Co., 812 F.2d 219, 222 (5th Cir.1987).
Finally, where the non-moving party has presented evidence to support the essential elements of its claims but that evidence is merely colorable, or is not significantly probative, summary judgement may be granted. Anderson, 477 U.S. at 249-50, 106 S. Ct. at 2510-11 (citations omitted). A summary judgment assertion made in an affidavit is simply not enough evidence to raise a genuine issue of material fact. See *227 Lechuga v. Southern Pacific Transp. Co., 949 F.2d 790, 798 (5th Cir.1992) (noting that conclusory statements in an affidavit do not provide facts that will counter summary judgment evidence, and testimony based on conjecture alone is insufficient to raise an issue to defeat summary judgment.); Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir.1985) ([A]ffidavits setting forth ultimate or conclusory facts ... are insufficient to either support or defeat a motion for summary judgment....) (citations omitted). Similarly, it is insufficient for the non-movant to argue in the abstract that the legal theory involved in the case encompasses factual questions. See Pennington v. Vistron Corp., 876 F.2d 414, 426 (5th Cir. 1989).
Hibernia Nat'l Bank v. Carner, 997 F.2d 94, 97-98 (5th Cir.1993).
III. DISCUSSION
Because the purported financing statements fail to comply with the requisites of law, they are void and of no legal consequence. As a preliminary matter, the federal employees burdened by the financing statements at issue do not fall within Texas' Uniform Commercial Code's definition of a "debtor." TEX.BUS. & COM.CODE ANN. § 9.105(a) (4) (Vernon 1991).[2] There is no evidence before the Court that the federal employees, burdened by the fraudulently filed UCC-1 statements, owed payment or other performance to Defendant Greenstreet or Mr. Garth for any obligation secured.
Furthermore, the federal employees named in the financing statements never signed the documents filed against them. Generally, a debtor's signature is necessary for a financing statement to be valid. The law is well settled that a financing statement is sufficient if it: (1) provides the names of the debtor and the secured party, (2) provides the address for the debtor and secured party, (3) contains a statement describing or indicating the type of collateral, and (4) is signed by the debtor. TEX.BUS. & COM.CODE ANN. § 9.402(a) (Vernon Supp.1995). The Fifth Circuit has recognized the importance of the signature requirement. See Sommers v. Int'l Business Machines, 640 F.2d 686, 689-92 (5th Cir.1981). The situation presently before the Court is precisely the type of problem sought to be avoided by the Code draftsmen in requiring the signature of the debtor on the financing statement. The presence of a debtor's signature provides an indispensable concession to authenticity and a deterrent to inaccurate or malicious filings. As a result, the financing statements at issue are without legal effect and should be removed from the county clerks' records.
Apparently, in an attempt to circumvent the signature requirement, Defendant Greenstreet and Mr. Garth attached to the UCC-1 statements the signature page of letters or other documents previously signed by the alleged debtors. The UCC-1 financing statements in this case do not even purport to contain the signatures of the alleged debtors; instead, the signature box on the UCC-1 statements contain a typed reference to UCC § 3-415[3] and is signed by either Garth or Greenstreet. The addition of documents evincing the signature of the alleged debtors amounts to a crude compliance attempt at best and a forgery at worst.
Basically, there is absolutely no evidence to support the belief that a security agreement exists between the federal employees named in the financing statements and either Mr. Garth or Mr. Greenstreet. To the contrary, all of the subject federal employees signed sworn declarations that they were not and never have been indebted to Defendant Greenstreet or Lawrence Wayne Garth. Absent a valid security agreement, a financing statement by itself does not create an enforceable security interest. In re Wes Dor, Inc., 996 F.2d 237, 239 *228 n. 2 (10th Cir.1993); see generally Sommers, 640 F.2d at 689-90; In re E.A. Fretz Co., Inc., 565 F.2d 366, 370-73 (5th Cir.1978); Mosley v. Dallas Entertainment Co., Inc., 496 S.W.2d 237, 240 (Tex.Civ.App.Tyler 1973, writ dism'd) (stating "The code makes no provision for a naked financing statement to be enforced as a security agreement."). Put differently, a UCC-1 financing statement in and of itself, which does not contain any evidence of an agreement, does not create a security interest or security agreement. Mosley, 496 S.W.2d at 240; cf. In re Maddox, 92 B.R. 707, 709-12 (Bankr.W.D.Tex. 1988). A financing statement exists to perfect an existing security interest and protect it from competing third party claims. Obviously, absent an existing security agreement in some form or fashion, a financing statement, without more, has no legal import or effect. Thus, even if the financing statements at issue were technically sufficient, which they are not, they would still be insufficient to represent enforceable security interests under the circumstances.
Messrs. Greenstreet and Garth's conduct illustrates a disregard for the legal system and should be considered reprehensible. They abused the system by filing fraudulent documents. Mr. Greenstreet compounded the abuse by subsequently flooding the Court with frivolous pleadings. Their actions were costly and inconvenient to many. Although there is little federal case law precisely addressing the specific conduct Greenstreet engaged in before this Court, his tactics are unfortunately not uncommon. As a consequence, more attention to Greenstreet's activity is warranted.
Greenstreet argues that he is of "Freeman Character" and "of the White Preamble Citizenship and not one of the 14th Amendment legislated enfranchised De Facto colored races." He further claims that he is a "white Preamble natural sovereign Common Law De Jure Citizen of the Republic/State of Texas." As a result, he concludes that he is a sovereign, not subject to the jurisdiction of this Court. Greenstreet's argument is entirely frivolous. Except for documents allegedly issued from the common law court Greenstreet claims is superior to this Court, no support for his position exists. Greenstreet provides no acceptable authority or cogent analysis to support his contention that this Court lacks personal jurisdiction over him. See generally United States v. Masat, 948 F.2d 923, 934 (5th Cir.1991), cert. denied, 506 U.S. 835, 113 S. Ct. 108, 121 L. Ed. 2d 66 (1992); United States v. Schmitt, 784 F.2d 880, 882 (8th Cir.1986), habeas corpus proceeding, 752 F. Supp. 306 (D.Minn. 1990), aff'd, 938 F.2d 189 (8th Cir.1991), cert. denied, 502 U.S. 985, 112 S. Ct. 592, 116 L. Ed. 2d 616 (1991) (describing appellants' argument that district court lacked personal jurisdiction over them because they were "natural freemen" as frivolous). Accordingly, this Court finds Greenstreet's argument lacking in justification.
Likewise, Greenstreet failed to support his position that this Court lacks subject matter jurisdiction. As the Government correctly notes, this Court has subject matter jurisdiction pursuant to Title 28 of the United States Code, §§ 1331 and 1345. In addition, venue is proper in this district under 28 U.S.C. § 1391(b) because all of the Defendants reside within this district, and the acts giving rise to the Plaintiffs claim for relief occurred within this district. Mr. Greenstreet's contentions to the contrary are simply misstatements of the law. Greenstreet "removed" this case to Our One Supreme Court for the Republic of Texas. Thus, he argues, this Court lacks concurrent subject matter jurisdiction in "Common Law Venue." His position is without merit. In 1992, the Austin Court of Appeals determined that the "Common Law Court for the Republic of Texas" did not exist. Kimmell v. Burnet County Appraisal District, 835 S.W.2d 108, 109 (Tex.App.Austin 1992, writ dism'd w.o.j.) (stating "We hold that the Common Law Court for the Republic of Texas, if it ever existed, has ceased to exist since February 16, 1846."). That court went on to observe in a footnote that the Republic of Texas adopted the English common law effective March 16, 1840, and the state government was organized on February 16, 1846. Id. at n. 2. The Common Law Court for the Republic of Texas could therefore have only existed between these two dates. By analogy *229 and for the same reasons, this Court holds that the mythical judiciary described as Our One Supreme Court for the Republic of Texas does not exist. As a result, this Court rejects Defendant Greenstreet's subject matter jurisdictional arguments.
Accordingly, this Court also rejects Greenstreet's attempt to defeat the Plaintiff's motion for summary judgment based on rulings or orders from the mythical common law court he feels is superior to this Court. Thus, Greenstreet is not entitled to a default judgment because of Plaintiff's non-compliance with orders from a fictitious court. Similarly, Greenstreet will not benefit from a res judicata defense or from his attempt to prove that the Plaintiff's motion is contemptuous. On balance, the authority Greenstreet relies upon has absolutely no legal value.
Perhaps the most bizarre basis for Greenstreet's position rests on the theory that the American system of currency is illegal and unconstitutional. Liberally construing the language of his pleadings before the Court, Greenstreet apparently believes that he has never been provided with funding (i.e. "lawful money") from the FmHA, under their contract, because it failed to give him money in silver or gold. Presumably, he therefore reasons that filing a UCC-1 is an appropriate remedy for him to pursue. Greenstreet contends that federal reserve notes are not legal tender, because they violate Article 1, Section 10, of the United States Constitution. Defendant Greenstreet's argument centers around his view that "the Congress of the United States of America declared a partial NATIONAL BANKRUPTCY on June 5, 1933, under H.J.R. 192 which abrogated the gold clause and deprived the American Citizens of their Constitutional Article 1, Section 10, lawful money" and that the "COINAGE ACT OF 1965 deprived the American Citizens of their required and mandated ... silver coinage." Thus, Greenstreet extrapolates, until he is given funds in silver or gold, he will not consider any past payment to have been acceptable or satisfactory. Attacking the legitimacy of federal reserve notes is not a novel argument. Others have asserted such claims; however, they have been summarily rejected. See, e.g., Rothacker v. Rockwall County Central Appraisal District, 703 S.W.2d 235 (Tex.App.Dallas 1985, writ ref'd n.r.e.) (citing state and federal authority declaring federal reserve notes to be legal tender). This Court will also reject Mr. Greenstreet's coinage arguments. The Court believes that Defendant's position is simply irrational.
Finally, Defendant Greenstreet's response to Plaintiff's motion for summary judgment identifies this Court as an "Admiralty Court" without further discussing his allegation. If his reference is to be construed as a jurisdictional challenge, his motion is denied. Others have attempted to persuade the judiciary that fringe on an American flag denotes a court of admiralty. In light of the fact that this Court has such a flag in its courtroom, the issue is addressed. The concept behind the theory the proponent asserts is that if a courtroom is adorned with a flag which happens to be fringed around the edges, such decor indicates that the court is one of admiralty jurisdiction exclusively. To think that a fringed flag adorning the courtroom somehow limits this Court's jurisdiction is frivolous.See Vella v. McCammon, 671 F. Supp. 1128, 1129 (S.D.Tex.1987) (describing petitioner's claim that court lacked jurisdiction because flag was fringed as "without merit" and "totally frivolous"). Unfortunately for Defendant Greenstreet, decor is not a determinant for jurisdiction.
The summary judgment evidence before the Court is clear. Viewing all factual questions in the light most favorable to Defendant Greenstreet, no genuine issue of material fact exists that would necessitate a trial in this case. The United States of America, as the moving party, has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. It has satisfied its burden. Once the movant carries its burden, the burden shifts to the nonmovant to show that summary judgment should not be granted. Celotex, 477 U.S. at 323-26, 106 S. Ct. at 2553-54. Unsubstantiated or conclusory assertions that a fact issue exists will not suffice. See Krim v. BanTexas Group, Inc., 989 F.2d *230 1435, 1442 (5th Cir.1993). Only when "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party" is a full trial on the merits warranted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986); see also Kelley v. Price-Macemon, Inc., 992 F.2d 1408, 1413 (5th Cir.1993), cert. denied, ___ U.S. ___, 114 S. Ct. 688, 126 L. Ed. 2d 656 (1994). Even under the most generous and liberal of interpretations, the summary judgment evidence provided by Defendant Greenstreet cannot be interpreted to provide a basis whereby a rational jury could return a verdict in his favor.
The evidence before the Court clearly demonstrates that the financing statements filed by Defendant Greenstreet and Mr. Garth are fraudulent. The UCC-1 statements at issue are deficient technically and substantively. Mr. Greenstreet came forward with no understandable evidence to defeat Plaintiff's properly supported motion for summary judgment. Accordingly, Plaintiff is entitled to relief in this matter.
Thus, the Court enters its judgment in favor of the Plaintiff and against the Defendants as follows:
(1) The financing statements caused to be filed in Dallam and Randall counties by Gale E. Greenstreet and Lawrence Wayne Garth against Mary E. Batenhorst, Neil J. Fleming, and August H. Hesse, III, are HEREBY DECLARED VOID AB INITIO;
(2) This Court FURTHER ORDERS that the County Clerks of Randall and Dallam counties remove and expunge the void financing statements and all of the related documents and filings from the Public Records of their respective counties;
(3) This Court FURTHER ORDERS that Gale E. Greenstreet be permanently enjoined from further similar filings against employees of the United States of America without approval from a United States District Court; and
(4) This Court FURTHER ORDERS that all costs incurred in this lawsuit be assessed against Defendant Greenstreet.
IV. CONCLUSION
Litigants such as Mr. Greenstreet should not be underestimated. They are often motivated and know how to work the system. Unfortunately, the honest taxpayer is victimized as a result. Tactics such as declaring oneself a sovereign, turning to common law courts, challenging the jurisdiction of state and federal trial courts, and contending that federal reserve notes are not legal tender are favorites among these litigants. Such arguments, however, are time consuming for courts to process and routinely futile.
Greenstreet's arguments in this case are fatally without merit. The UCC-1 statements he and Mr. Garth filed are fraudulent and wholly inadequate. They lack the formal requisites required by the law and were not filed in good faith. Thus, the statements enjoy no legal force or effect.
Mr. Greenstreet's improper tactics failed to overcome Plaintiff's properly supported motion for summary judgment. As a result, judgment is appropriately entered against the defendants. Furthermore, it is the expectation of this Court that the equitable relief and assessments granted will reflect the Court's frustration with the arguments and tactics employed by Defendant Greenstreet. Mr. Greenstreet is hereby cautioned that if he continues to take legal positions which are not supported by existing law, severe monetary sanctions may result, his pro se status notwithstanding. Hopefully, litigants like Mr. Greenstreet will be unwilling to pay to harass the government in the future.
It is SO ORDERED.
NOTES
[1] Three of the financing statements were filed against Mary E. Batenhorst. She is employed by the United States Department of Agriculture as a District Director for the Farmers Home Administration (FmHA). The other two financing statements were filed against Neal Fleming and August Hesse, III. Both men are employed as County Supervisors for the FmHA.
[2] Section 9.105(a) (4) defines "debtor" to mean "the person who owes payment or other performance of the obligation secured...."
[3] This Code section, entitled "Contract of Accommodation Party," has nothing to do with a person's ability to sign a financing statement for another. It concerns one party signing a negotiable instrument as a surety for someone already a party to the instrument. Even construed liberally, § 3-415 is simply not applicable under the circumstances.
Many people have elected to judge him for his literal works just as they did Irwin Schiff in his works, The Federal Mafia.
You really should have read the legal disclaimer in Schiff's book, The American Mafia. This was so the simpletons who paid for his book, and swallowed the crap that they didn't have to file or pay income taxes, couldn't sue him when they found themselves in deep legal doo-doo, facing legal fees, penalties, interest, and possibly prison.
This book is designed to provide the author’s findings and opinion, based on research and analysis of the subject matter covered. This information is not provided for purposes of rendering legal or otherwise professional services, which can only be provided by knowledgeable professionals on a fee basis.
Further, there is always an element of risk in standing up for one’s lawful rights in the face of an opressive taxing authority backed by a biased judiciary.
Therefore, the author and publisher disclaim any responsability for any liability of loss incurred as a consequence of the use and application, either directly or indirectly, of any advice or information presented herin.
Copyright 1990 by Irwin Schiff Revised Third Edition 1999 Revised Second Edition 1992 First Edition Published 1990 ISBN 0-930374-09-6 01 02 03 5432
That judge went out of his way to be polite in his opinion. Assessing costs was a good move, and should be done routinely in the FIRST instance with this sort of crap.
Actually, nolu chan, I used several of Schiff's statutes back in 2002 in a matter concerning threatening letters a friend of mine received from the IRS just because, although they filed their taxes, they invoked the fifth amendment and other of their lawful rights. Apparently, this upset the IRS so much that they decided to use extortion and other illegal tactics using the US mail service. When my friend received threatening letters from the IRS, it was then that I stepped in and pushed the IRS back by using their own statutes against them. After I fired back letters on my friend's behalf, they never received another threatening letter again. Never. If you had even bothered to read Schiff's book, you would probably have a better understanding of how to deal with these people lawfully. But no, you choose to judge people by their character even in spite of how they try to make a positive contribution in our society.
In my opinion, I view those like Meador and Schiff, as protagonists in an era in which our society does not deserve them because they do not appreciate what has been revealed to them. They cannot handle the truth. When they do appreciate truth, it has to come from a "respectable" person. Who are they to judge anybody lest they also be judged. Leave to judging of these two people (Meador and Schiff) to the Father above.
Meador and Schiff are a few examples of what I consider to be the sages to unraveling and exposing the stench steming within our non-government emtities. We cannot afford to be passive lying dogs that roll over and do as we are told. America was never built on a passive government. We forget that we ( the John Q. Public) are the government that those in D.C. work for. They are not public officers; they are public servants.
If you want to change your laws, change that flag. It is wonder the Europeans laugh at us. We are lacking in spine.
If you want to change your laws, change that flag. It is wonder the Europeans laugh at us. We are lacking in spine.
If they did remove the usual gold fringes on the courtroom flags as you wish, would you then accept all those courts' rulings as lawful and binding on litigants?
If they did remove the usual gold fringes on the courtroom flags as you wish, would you then accept all those courts' rulings as lawful and binding on litigants?
That would be Title 4 U.S.C. Section 1,2, and 3. Then, they would actually have to conduct a lawful constitutional court where:
1) they conduct hearings applying the law of substance rather than the law of procedure.
2) they recognize your right to speak and represent yourself in any case.
3) when you pass the bar, to enter the court, you are not pleading in a military jurisdiction where the judge optionally elects to acknowledge your rights.
This is not just in federal courts but also municipal courts too. It is not the court rulings that bind litigants so much as how it is being conducted.
[goldilucky] Actually, nolu chan, I used several of Schiff's statutes back in 2002 in a matter concerning threatening letters a friend of mine received from the IRS just because, although they filed their taxes, they invoked the fifth amendment and other of their lawful rights. Apparently, this upset the IRS so much that they decided to use extortion and other illegal tactics using the US mail service. When my friend received threatening letters from the IRS, it was then that I stepped in and pushed the IRS back by using their own statutes against them. After I fired back letters on my friend's behalf, they never received another threatening letter again. Never.
and they all lived happily after.
I surmise your letters that made the IRS quake in fear were full of the same substance that permeates your every post on LF.
With you as their legal counsel, I suspect they were receiving three hots with their cot, and legal papers that were not letters.
It is a shame you are unable to even express a real legal argument for your bullshit. I would likie a real legal argument so I could crush it.
[goldilucky] Who are they to judge anybody lest they also be judged. Leave to judging of these two people (Meador and Schiff) to the Father above.
I rather suspect two bloodsucking leaches, who profited from the misery they caused others, were directed to exit 1 off the expressway going North, and redirected South to the end of the line.
I include here only the Tax Protester division of the Quatloser Hall of Shame.
This is from a remnant of the old Quatloos site, so links on the page no longer work. The Quatloos Forum moved to a new location at https://quatloosia.blogspot.com/. Archives of the old forum are there. It was like a Wikipedia of tax fraudsters.
QUATLOSERS HALL OF SHAME
"These special-editions Quatloos commemorates those who have made a name for themselves in their particular business endeavors."
In 2003, the Internal Revenue Service had identified about 5,000 tax returns filed by about 3,100 of Schiff's customers in a three-year period, reportedly representing about $56 million in attempted tax evasion.
Convictions for 1997 through 2002 tax years
On October 24, 2005, Schiff was convicted in the U.S. District Court in Las Vegas, Nevada, on multiple counts of filing false tax returns for the years 1997 through 2002, aiding and assisting in the preparation of false tax returns filed by other taxpayers, conspiring to defraud the United States, and (for his own income taxes for tax years 1979 through 1985) tax evasion, and he again began serving jail time.
Despite Schiff's age (he turned 78 years old on the day of sentencing), on February 24, 2006, Schiff was sentenced to 151 months (12 years and 7 months) in prison and was ordered to pay over $4.2 million in restitution to the Internal Revenue Service; Schiff was also sentenced to 12 additional months for contempt of court. On December 26, 2007, the United States Court of Appeals for the Ninth Circuit affirmed Schiff's convictions except for the criminal contempt convictions. The Court vacated the contempt convictions because of the failure of the trial court judge to file contempt orders under rule 42(b) of the Federal Rules of Criminal Procedure.
The Court of Appeals indicated that the trial judge could file the appropriate paperwork and re-sentence Schiff on the contempt convictions. On September 5, 2008, the trial judge re-sentenced Schiff to 11 months in prison in connection with the contempt of court, effectively lowering Schiff's overall original sentence by another month.
One of Schiff's co-defendants, Lawrence Cohen, was sentenced on February 3, 2006 to 33 months in prison and was ordered to pay $480,000 in restitution. On December 26, 2007, the United States Court of Appeals for the Ninth Circuit reversed Cohen's conviction because of the failure of the trial court to allow testimony from a psychiatrist regarding Cohen's mental state. The Court of Appeals remanded the Cohen case for a possible re-trial. On June 16, 2009, Cohen pleaded guilty to aiding and assisting in the filing of a false tax return. However, Cohen died on August 6, 2009, and his case was therefore dismissed.
On February 23, 2006, Cynthia Neun, another co-defendant, was sentenced to 68 months in prison and was ordered to pay over $1.1 million in restitution. Neun's conviction was affirmed by the United States Court of Appeals for the Ninth Circuit. According to the prosecutor's office, Neun sold materials encouraging people not to pay taxes, prepared false tax returns, and represented hundreds of taxpayers in dealings with the IRS where she promoted Schiff's arguments. She was required to submit to three years of supervision following her release, which occurred on December 28, 2010.
In this last case, Schiff's attorneys again asked that the court consider the claim that Schiff had a mental disorder relating to his beliefs about taxes. According to the prosecutor's office, the evidence at trial showed that Schiff had attempted to evade the payment of over $2 million in taxes from 1979 through 1985 and that he had used offshore bank accounts using multiple tax identification numbers and had attempted to hide assets in connection with his tax protester related activity. Convictions of Schiff's followers
Other individuals who have been convicted of federal tax crimes after following Irwin Schiff include Warren J. Burdett; Christopher and Pamela Harrison; Scott D. Haynes; Kenneth Heath; Joseph Letscher; David Middleton; Robert L. Mosel; James C. Payne; David G. Pflum; and Steven A. Swan.
That sort of lunacy just makes me mad, really. I hope the courts make being a lunatic in that manner an expensive hobby.
Here is a lunatic tax protester LAWYER who worked real hard at it until the U.S. Tax Court finally assessed him a $3,000 penalty earlier this month.
Ten to twenty years ago, this tax protester crap was a cottage industry for bloodsucking leeches who did care what harm they did to others. The DOJ finally stepped in and started putting them behind bars and getting restraining orders against their peddling their crap.
There is a bit of crossover between these mopes and birthers. Shady birther lawyers had a cottage industry peddling their incredible garbage and collecting donations to fund their idiotic lawsuits. They had quite a following of useful idiots. Their biggest achievement was helping to get Obama elected. Twice. They looked like idiots, like the shampeachment idiots are doing now.
MICHAEL C. WORSHAM, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 26210-16. Filed December 3, 2019.
Michael C. Worsham, pro se.
David A. Indek and Nancy M. Gilmore, for respondent.
MEMORANDUM OPINION
COLVIN, Judge: This case is before the Court to decide respondent’s motion to impose a penalty under section 6673(a)(1).1 For reasons discussed below, we will impose on petitioner a penalty of $3,000.
Section references are to the Internal Revenue Code in effect at all relevant times. We round all monetary amounts to the nearest dollar.
SERVED Dec 03 2019
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[*2]Background
The facts in this case were found in Worsham v. Commissioner (Worsham II), T.C. Memo. 2019-132, and are incorporated by this reference.
A. Petitioner
Petitioner has a bachelor of science degree in chemistry; a master of science degree in civil engineering; and a juris doctor degree from the University of Baltimore School of Law. He moved to Maryland in 1993 to work for the U.S. Army Environmental Center at Aberdeen Proving Ground. During the next several years he attended law school at night. He was admitted to practice law in Maryland in 1998. He left the Army and started a solo law practice in 2001. Petitioner’s law practice was not in the area of tax, and he took no tax courses in law school.
Petitioner filed a Federal income tax return for every year from 1989 (when he had just begun graduate school for his master of science degree) through 2004. Petitioner’s law practice became more profitable during 2005. An accountant suggested that petitioner incorporate his business for tax reasons, which he did under the name of Michael C. Worsham, P.C. (Worsham P.C.). During 2006 Worsham P.C. had a corporate charter in Maryland, elected to be treated as an S corporation, and was wholly owned by petitioner. Also during 2006 petitioner
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[*3] discovered information which led him to conclude that he was not required to file Federal tax returns or pay Federal income tax. As a result petitioner did not file an individual Federal income tax return for any year since 2004 through the time of trial.
B. Worsham I and Worsham II
In Worsham v. Commissioner (Worsham I), T.C. Memo. 2012-219, 2012 WL 3101491, aff d, 531 F. App’x 310 (4th Cir. 2013), relating to petitioner’s 2006 tax year, we held that he failed to report taxable income and was liable for additions to tax under section 6651(f) for fraudulent failure to file, section 6651(a)(2) for failure to pay reported tax, and section 6654 for failure to pay estimated income tax. We did not impose a penalty under section 6673, but we warned petitioner not to continue making frivolous arguments. In Worsham I, 2012 WL 3101491, at *4, petitioner argued that “there is no constitutional basis for federal taxes on the ordinary labor of a working American like Petitioner”, that “there is no federal statute that * * * establishes federal tax liability for money earned from the ordinary labor of Americans”, and that respondent failed to account for the basis value of a person’s labor which “would be valued at near or the same as the value of the gross receipts which that same labor generated.”
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[*4] In this case, which involves petitioner’s 2005 and 2007-10 tax years, petitioner continued to argue that he is entitled to take into account his “basis in labor” and that the value or cost of his labor is its fair market value. Petitioner contends that sections 61, 83, 1001, and 1012 and various regulations under those sections support his “basis in labor” contention. In Worsham II we held that: (1) petitioner had income, self-employment income, and deductions in the amounts determined by respondent for the years at issue; (2) “basis in labor” is not considered in determining Federal income tax liability for income from performance of services; (3) petitioner is liable for tax on his self-employment income and entitled to the deductions for self-employment tax as determined by respondent; (4) we had jurisdiction over the case; (5) petitioner was liable for the additions to tax for failure to timely file tax returns and failure to make estimated tax payments; (6) the statute of limitations bars a refund of petitioner’s overpayments (if any); and (7) section 6673 is not unconstitutional.
Discussion
A. Respondent’s Motion To Impose a Penalty Under Section 6673(a)(1) Respondent filed a motion to impose a penalty of up to $25,000 on petitioner under section 6673(a)(1) for taking positions that are frivolous or groundless. In pertinent part, section 6673(a)(1) authorizes this Court to impose a
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[*5] penalty of up to $25,000 if the taxpayer has instituted or maintained proceedings before the Court primarily for delay or if the taxpayer’s position in the proceedings is frivolous or groundless. “A taxpayer’s position is frivolous if it is contrary to established law and unsupported by a reasoned, colorable argument for change in the law.” Rader v. Commissioner, 143 T.C. 376, 392 (2014) (quoting Goff v. Commissioner, 135 T.C. 231, 237 (2010)), affd in part, 616 F. App’x 391 (10th Cir. 2015).
In Worsham I, 2012 WL 3101491, at *5, we said that “[pjetitioner’s argument that no Federal statute imposes a tax on a person’s ordinary labor relies on selective and misguided readings of multiple statutes. Petitioner’s argument that he had a basis in his labor is also frivolous.” We noted that courts have previously held that taxpayers have no basis in their labor and that petitioner’s claim to the contrary is frivolous. Id. We did not impose a penalty under section 6673, but we “strongly wamfed] petitioner that making such arguments before this Court in the future * * * [would] likely result in the imposition of sanctions against him.” Id. at *10.
Worsham I was affirmed by the U.S. Court of Appeals for the Fourth Circuit, which held that petitioner “argues that his earnings as an attorney are not taxable income because they include the ‘basis value’ of his labor. We agree with
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[*6] the numerous other courts to have addressed this argument that it is meritless.” Worsham v. Commissioner, 531 F. App’x at 311. Petitioner filed his petition in this case in 2016 and continued to raise the “basis in labor” argument, even though the Court of Appeals had warned him that the argument is frivolous. In letters dated February 12, March 30, and April 2, 2018, respondent warned petitioner that raising the basis in labor argument could result in the imposition of a penalty under section 6673. Petitioner failed to heed these warnings from the courts and respondent.
B. Petitioner’s Contentions
Petitioner contends that his positions in this case are not frivolous and are issues of first impression. We disagree. In Worsham I petitioner argued that labor has a basis determined from the value of gross receipts, while in this case he argued that labor has a basis determined from the fair market value of the labor. Petitioner cites authorities to support his argument different from those he cited in Worsham I, but his argument relies upon a selective and misguided reading of those authorities and does not establish an argument different in substance from his argument in Worsham I.
As we have previously told petitioner: “We perceive no need to refute * * * [frivolous] arguments with somber reasoning and copious citation of
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[*7] precedent.” Worsham I, 2012 WL 3101491, at *4 (quoting Craig v.Commissioner, 737 F.2d 1417, 1417 (5th Cir. 1984)). Because petitioner continues to make frivolous arguments despite numerous warnings, we will require him to pay to the United States a penalty of $3,000 under section 6673.
An appropriate order and decision will be entered.
The Maryland Court of Appeals has ordered disbarment of an attorney for tax crimes
Among other things, an attorney is an “officer of the legal system and a public citizen.” If this is a special role in a nation that prides itself on the rule of law, then it entails a special responsibility to abide by the law. It also means that, when acting as an advocate, a lawyer must advance only arguments that are good faith interpretations of existing law or good faith efforts to change existing law. Fraudulent conduct and frivolous argument to avoid a civic obligation are antithetical to the lawyer’s role.
Respondent Michael Craig Worsham carved out a practice that concentrated in the private enforcement of federal and state laws prohibiting unsolicited faxes and telephone a role specifically provided in those statutes that augments public enforcement efforts and that is sometimes referred to as a “private attorney general." Mr. Worsham, however, proved to be less law-abiding in the conduct of his private affairs. As his practice grew more lucrative, he ceased to file income tax returns or pay income taxes. When detected, he attempted to justify his conduct with well-worn meritless arguments about the constitutionality and validity of the federal income tax – arguments that he repeated in his filings with us even after he had lost at every level in the federal courts and that, he ultimately conceded, had no bearing on his obligation to comply with State tax laws.
We hold that the willful failure to file income tax returns and pay income taxes, when done with fraudulent intent, merits disbarment.
The attorney was admitted in 1998 in Maryland.
He stopped paying state and federal taxes in 2005. When the IRS got on his trail, he engaged in concealment and raised frivolous claims in the courts. (Mike Frisch)
BEFORE: Beckwith, Associate Judge, and King and Reid, Senior Judges.
ORDER
(FILED - May 7, 2015)
On consideration of the certified order indefinitely suspending respondent from the practice of law in the United States District Court for the District of Maryland,this court’s April 3, 2014, order suspending respondent and directing him to show cause why reciprocal discipline should not be imposed, the response and respondent’s affidavit as required by D.C. Bar R. XI, §14 (g) filed on May 3, 2014, the statement of Bar Counsel regarding reciprocal discipline and request to stay the proceeding, this court’s June 9, 2014, order staying the matter until resolution of the pending disciplinary matter in the state of Maryland, a certified order of the Court of Appeals of Maryland disbarring respondent from the practice of law in that jurisdiction, see Attorney Grievance Com’n of Maryland v. Worsham, 105 A.3d 515 (Md. 2014), this court’s January 26, 2015, order that vacated the stay and directed respondent to show cause why reciprocal discipline of disbarment should not be imposed, the statement of Bar Counsel, and respondent’s lodged response to Bar Counsel that includes a request for oral argument, and it appearing that respondent does not rely on any of the established bases for challenging reciprocal discipline, see D.C. Bar R. XI § 11 (c), but is attempting to improperly re-litigate the discipline imposed by the state of Maryland, see In re Zdravkovich, 831 A.2d 964, 969 (D.C. 2003) (“Put simply, reciprocal discipline proceedings are not a forum to reargue the foreign discipline”), it is
ORDERED that the Clerk shall file the lodged response of respondent. It is
FURTHER ORDERED that respondent’s request for oral argument is denied. It is
FURTHER ORDERED that Michael C. Worsham is hereby disbarred from the practice of law in the District of Columbia, nunc pro tunc to May 3, 2014.
Here at LF and back at LP, the relevant ones were John Kotmair Jr., Larken Rose, and Ed & Elaine Brown.
Back when Goldi-Lox, who lived in Maryland at the time, and a poster named christine were just ordinary posters over at LP. Goldi didn't own LP at that time. Go back to the LP archives and look in the early years at the section on Taxation articles.
