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Co. 22 F.2d 113 (4th Cir. 1927), United States, United States 155, United States 155 F.2d, United States 155 F.2d 823, United States 155 F.2d 823 4th, United States 155 F.2d 823 4th Cir., United States 155 F.2d 823 4th Circuit, United States v. Seaboard, United States v. Seaboard Air, United States v. Seaboard Air Line, United States v. Seaboard Air Line Ry., United States v. Seaboard Air Line Ry. Co., US v. Seaboard 22 F.2d 113, US v. Seaboard Air Line Ry. Co., utm, utm edu, v. Seaboard Air Line Ry. Co. 22 K, v. United States, v. United States 155, v. United States 155 F.2d, v. United States 155 F.2d 823, v. United States 155 F.2d 823 4th, wrote, wrote a, wrote a long, wrote a long treatise, wrote a long treatise he, wrote a long treatise he described, wrote a long treatise he described as, wrote a long treatise he described as a, www.home.hiwaay.net/becraft, www.home.hiwaay.net/becraft/InvisibleContracts.html
_____________________________________________
Really ? Invisible Contracts ?
(updated Sept. 24, 2009)
—————————————————————–
http://home.hiwaay.net/%7Ebecraft/InvisibleContracts.html
_____________________________________________
Back in the
mid-80s,
an
author
named
“George Mercier”
wrote a long
treatise
he described as a
letter
that explained his
arguments
about the
federal income tax
………………………………………………..
This
“book”
obtained a
wide circulation
back then,
but within a few years,
it died down after the
“Mercier legal theory”
was championed by the
Pilot Connection Society,
an
organization
created
and
operated
by
Phil Marsh,
and
went down in flames
………………………………………………..
But, this work is again being
popularized
by
“newbies”
in the
freedom movement
and I have concluded that I need to provide my
view
of this
argument,
which in essence is that this
“legal argument”
has no substance
………………………………………………..
Let me explain some of the
gross flaws
of this
argument
………………………………………………..
For centuries,
philosophers
have written about various forms of
governments,
and some of these like
Thomas Hobbes
and
John Locke
wrote about the
“Social Contract Theory”;
Locke
had an
impact
on the
founders
of our
country
………………………………………………..
A short explanation of this
theory
may be found on the Net here
_____________________________________________
http://www.iep.utm.edu/soc-cont/
_____________________________________________
From reading
Mercier’s Invisible Contracts,
it appears to me that he attempted to connect the
Social Contract Theory
to
modern American law
………………………………………………..
However,
American law
is not exclusively contract based,
yet
this is the precise contention asserted
by
Mercier
………………………………………………..
I know little about
Mercier,
and I have never met anyone who knew him
………………………………………………..
For all that is known about him,
“George Mercier”
may be somebody’s
nom de guerre
………………………………………………..
But from reading his work,
I have concluded that he probably lived in
New York
………………………………………………..
From the fact that he quoted very extensively from the works of
Mormon Church leaders,
I have concluded that he was a
Mormon
………………………………………………..
But then again, he was a
self confessed
pot-grower:
………………………………………………..
“For example, among other things, I am a
Marijuana Grower
[I am quite interested in Horticulture]”
………………………………………………..
I have never met a
pot-growing
Mormon
………………………………………………..
Mercier’s
legal theory
is that, here in
America,
the
relationship
between
citizens
and
government (Mercier’s “King”)
is
entirely commercial
and
based
on
implied
or
invisible
contracts
………………………………………………..
I could be wrong,
but I have concluded that
Mercier
first wrote some
treatise
of his
legal argument
that was
purely theoretical
………………………………………………..
Once this was done,
he simply added a
substantial amount
of other apparently relevant
(to him at least)
legal
and
other materials
………………………………………………..
It is only this
other material
that provides any shred of
legal support
for his
argument
………………………………………………..
I do not want to be
perceived
as
condemning everything he writes about
and there is much in
Invisible Contracts
with which I am in agreement
………………………………………………..
His work is easy to read,
is entertaining and interesting;
he chocks his
work
with lots of
stories
about the
Rockefellers
and
other elites
in our
society
and across the world
………………………………………………..
He condemns the
tyranny
of
present-day American government,
and such writing is popular,
both with me and other Americans
………………………………………………..
But, all of that is irrelevant regarding
his fundamental legal argument
………………………………………………..
Let me address
his contention
that
“everything is commercial”
in reference to the
“King”, government
………………………………………………..
It is a
well established legal principle
that
any American government
engaged
in
commercial endeavors
is
subject
to the
same rules of commerce
as are
private individuals
………………………………………………..
For example, in
_____________________________________________
Lynch v. United States,
292 U.S. 571, 579,
54 S.Ct. 840
(1934),
—————————————————————–
https://supreme.justia.com/cases/federal/us/292/571/case.html
—————————————————————–
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=292&invol=571
——————————————————————
https://bulk.resource.org/courts.gov/c/US/292/292.US.571.html
——————————————————————
http://www.law.cornell.edu/supremecourt/text/292/571
_____________________________________________
the
Supreme Court
stated:
………………………………………………..
“When the
United States
enters into
contract relations,
its
rights
and
duties
therein are
governed generally
by the
law applicable to contracts
between
private individuals”
………………………………………………..
See also
_____________________________________________
Franconia Associates v. United States,
536 U.S. 129, 141,
122 S.Ct. 1993
(2002);
—————————————————————–
https://supreme.justia.com/cases/federal/us/536/129/
—————————————————————–
https://supreme.justia.com/cases/federal/us/536/129/case.html
—————————————————————–
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=536&invol=129
—————————————————————–
http://ruralhome.org/storage/documents/franconia.pdf
—————————————————————–
http://www.oyez.org/cases/2000-2009/2001/2001_01_455
_____________________________________________
and
_____________________________________________
United States v. Seaboard Air Line Ry. Co.,
22 F.2d 113, 115
(4th Cir. 1927)
—————————————————————–
http://law.justia.com/cases/federal/appellate-courts/F2/22/113/1474997/
——————————————————————
6.
http://www.americanbar.org/publications/under_construction/2013/january_2013/update_from_courts_connecticut_supreme_court.html
——————————————————————
http://openjurist.org/216/f2d/855/seaboard-air-line-railroad-company-v-united-states
_____________________________________________
(“And the
rule
is
well settled
that, when the
‘government * * *
comes down from its
position
of
sovereignty,
and enters the
domain
of
commerce,
it
submits itself
to the
same laws
that
govern individuals
there‘”),
………………………………………………..
among many others
………………………………………………..
Presuming that
our relationship
with
Uncle Sam
is
commercial,
what are these
contract rules
that apply to this
commercial government,
Mercier’s King?
………………………………………………..
The
“statute of frauds”
originates from the
common law
and
every state
today has a general
“statute of frauds,”
if not several
………………………………………………..
Generally,
statutes of frauds
require
that
certain contracts
are only
valid
if
evidenced
by a
written contract
——————————————————————
Typically,
contracts for the sale of land,
contracts for the sale of goods over 500 bux,
all other contracts in excess of 5000 bux,
agreements to answer for the debts of others,
contracts that have a life in excess of one year,
etc.,
must be
memorialized
by a
written contract
——————————————————————
Two such
Alabama laws
appear below:
——————————————————————
§ 7-2-201
Formal requirements; statute of frauds
(1) Except as otherwise provided in this section
a contract for the sale of goods
for the price of $500 or more
is not enforceable by way of
action
or
defense
unless there is
some writing
sufficient to indicate
that a
contract for sale
has been made between the
parties
and
signed
by the
party
against whom
enforcement
is sought
or by his
authorized agent
or
broker
——————————————————————
A
writing
is not
insufficient
because it
omits
or
incorrectly states
a term agreed upon,
but the
contract
is not
enforceable
under this
paragraph
beyond the
quantity of goods
shown in such writing
——————————————————————
§ 8-9-2
Certain agreements void unless in writing
In the following cases,
every agreement
is
void
unless such
agreement
or
some note
or
memorandum thereof
expressing the
consideration
is in
writing
and
subscribed
by the
party
to be
charged therewith
or
some other person
by him thereunto
lawfully authorized
in
writing:
——————————————————————
(1) Every agreement
which, by its
terms,
is not to be
performed
within
one year
from the
making thereof;
——————————————————————
(2) Every special promise
by an
executor
or
administrator
to
answer damages
out of his own estate;
——————————————————————
(3) Every special promise
to
answer for the
debt,
default
or
miscarriage
of another;
——————————————————————
(4) Every
agreement,
promise
or
undertaking
made upon
consideration
of
marriage,
except mutual promises to marry;
——————————————————————
(5) Every contract
for the sale of
lands,
tenements
or
hereditaments,
or of
any interest therein,
except
leases
for a term not longer than
one year,
unless the
purchase money,
or a portion thereof is
paid
and the
purchaser
is put in
possession
of the
land
by the
seller;
——————————————————————
(6) Every
agreement,
contract
or
promise
to make a will
or
to
devise
or
bequeath
any
real
or
personal
property
or
right,
title
or
interest
therein;
——————————————————————
(7) Every
agreement
or
commitment
to
lend money,
delay
or
forebear repayment thereof
or
to modify the provisions
of such
an agreement
or
commitment
except for
consumer loans
with a
principal amount
financed less than $25,000;
——————————————————————
(8) Notwithstanding
Section 7-8-113,
every agreement
for the
sale
or
purchase
of securities
other than through the
facilities
of a
national stock exchange
or of the
over-the-counter securities market
——————————————————————
With the
statute of frauds
in mind,
look at your
birth certificate,
driver’s license
and
SSN card
——————————————————————
What
promises to pay
appear
on any of these
documents?
——————————————————————
Did you
sign
any of these
documents
promising to
pay anything?
——————————————————————
Can
King government
sue you
for
breach of contract
based on your
birth certificate,
driver’s license
or
SSN?
——————————————————————
In truth and
as a matter of law,
these
documents
are
not contracts,
nor do they
evidence contracts
——————————————————————
Finally, there are no
“invisible contracts”
regarding these matters
——————————————————————
Furthermore, having an
association
with some
regulated entity
like a
bank
does not supply some
nexus
to
King government,
absent
some express law
——————————————————————
Mercier
also
asserts
that
social security
is an
invisible contract
——————————————————————
For many years, I have posted the following in another file on my website:
—————————————————————–
http://home.hiwaay.net/%7Ebecraft/ssn.html
_____________________________________________
SOCIAL SECURITY IS NOT A CONTRACT
………………………………………………..
Art. 1, § 9, cl. 7
of the
U.S. Constitution
provides that
………………………………………………..
“No Money
shall be
drawn
from the
Treasury,
but in
Consequence of Appropriations
made by
Law”
………………………………………………..
While this
constitutional provision
does not of itself
place a maximum ceiling
on the
amount of debt
which can be
created
by
Congress,
it does
require
that
appropriating legislation
be
enacted
in order to
incur debts
………………………………………………..
This is aptly demonstrated by the
federal cases
which have
construed
this part of the
Constitution
………………………………………………..
In
_____________________________________________
Cummings v. Hardee,
102 F.2d 622
(D.C.Cir. 1939),
—————————————————————–
http://www.vivienkellems.org/security.html
_____________________________________________
and
_____________________________________________
Maryland Casualty Co. v. United States,
155 F.2d 823
(4th Cir. 1946),
—————————————————————–
https://casetext.com/case/maryland-casualty-co-v-united-states-8
_____________________________________________
it was held that
officers of the United States
lacked
all power
to
pay any claim
against the
United States
in the
absence
of an
appropriation from Congress
to
pay such claim
………………………………………………..
This principle was more fully explained in
_____________________________________________
Hughes Aircraft Co. v. United States,
534 F.2d 889, 906
(Ct.Cl. 1976),
—————————————————————–
https://casetext.com/case/hughes-aircraft-co-v-united-states-3
_____________________________________________
where that
Court
declared:
——————————————————————
“The
second principle
is that
before
any expenditure
of
public funds
can be made,
there must be an
act of Congress
appropriating the funds
and
defining the purpose
for such appropriation
——————————————————————
Thus,
no officer
of the
Federal Government
is
authorized
to
pay a debt due from the U.S.,
whether or not reduced to a
judgment,
unless an
appropriation
has been made for that purpose”
——————————————————————
See also
_____________________________________________
Reeside v. Walker,
52 U.S. (11 How.) 272
(1850);
—————————————————————–
https://supreme.justia.com/cases/federal/us/52/272/case.html
—————————————————————–
https://bulk.resource.org/courts.gov/c/US/52/52.US.272.html
—————————————————————–
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=52&invol=272
_____________________________________________
Cincinnati Soap Co. v. United States,
301 U.S. 308,
57 S.Ct. 764
(1937);
—————————————————————–
https://supreme.justia.com/cases/federal/us/301/308/case.html
—————————————————————–
https://bulk.resource.org/courts.gov/c/US/301/301.US.308.659.687.html
—————————————————————–
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=301&invol=308
_____________________________________________
and
_____________________________________________
Office of Personnel Management v. Richmond,
496 U.S. 414,
110 S.Ct. 2465, 2471
(1990)
—————————————————————–
https://supreme.justia.com/cases/federal/us/496/414/case.html
—————————————————————–
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=496&invol=414
—————————————————————–
http://laws.findlaw.com/us/496/414.html
_____________________________________________
LAW REVIEW 1104
—————————————————————–
http://lawcenter.org/LAW_REVIEW_1104.html
_____________________________________________
In
_____________________________________________
National Association of Regional Councils v. Costle,
564 F.2d 583, 586
(D.C.Cir. 1977),
—————————————————————–
http://openjurist.org/564/f2d/583/national-association-of-regional-councils-v-m-costle-u-s
—————————————————————–
https://casetext.com/case/national-assn-of-regional-councils-v-costle
—————————————————————–
http://elr.info/litigation/%5Bfield_article_volume-raw%5D/20737/national-assn-regional-councils-v-costle
_____________________________________________
that
Court
elucidated this principle by stating:
………………………………………………..
“Government agencies
may only enter into
obligations to pay money
if they have been
granted such authority
by
Congress
—————————————————————–
Amounts so
authorized
by
Congress
are termed collectively
‘budget authority’
and can be
subdivided
into
three conceptually distinct categories —
appropriations,
contract authority,
and
borrowing authority
——————————————————————
Appropriations permit an
agency
to
incur obligations
and to
make payments
on
obligations
——————————————————————
Contract authority
is
legislative authorization
for an
agency
to
create obligations
in advance
of an
appropriation
——————————————————————
It
requires
a
subsequent appropriation
or
some other source of funds
before the
obligation incurred
may actually be
liquidated
by the
outlay of monies
——————————————————————
Borrowing authority
permits an
agency
to
spend debt receipts”
——————————————————————
Thus, it is quite apparent that in order for the
federal government
to
incur debt,
it
must adopt legislation
authorizing
a
specific amount
of
federal obligations
to be
incurred
——————————————————————
It is easy to
demonstrate
the
operation
of
this provision
of the
Constitution
and its
application
to
government contracts
——————————————————————
Suppose the
feds
desired to build a
new courthouse
at a
cost of $200 million
——————————————————————
An
agency
in charge
of such a
project
could theoretically
“contract”
with a
construction company
to build this structure
——————————————————————
However, until
Congress
actually appropriates money
to
pay for construction,
there is no contract
——————————————————————
Even if the
contractor
in this example
incurred lots of costs
preparing to build this courthouse
which ultimately does not get built
because of
lack of funds,
he has no claim against Uncle Sam
for
breach of contract
——————————————————————
The
same principle
applies
to
every other government contractor,
whether
aerospace,
military,
et cet.
——————————————————————
Government contracts
are unique
and different
from
private sector contracts
due to this
constitutional limitation
upon the
power to contract
——————————————————————
Is
Social Security
a
contract?
——————————————————————
A
private insurance policy
is clearly a
contract
because the
policyholder
makes a
promise
to
pay money
to the
insurance company,
which in turn
agrees to likewise pay the policyholder
if certain contingencies arise
——————————————————————
These
“promise to pay”
elements
are essential
for a
contract,
but they simply
are not present
with
Social Security
——————————————————————
First,
Social Security
“payments”
are not premium payments,
but are
taxes instead
——————————————————————
Secondly,
there is no corresponding
and
enforceable
“promise to pay”
from the
Social Security Administration
to its
“beneficiaries”
——————————————————————
As noted above,
government contracts
are
very special
and
require
an
appropriation from Congress
before
money can be expended
and a
contract made
——————————————————————
Regarding
Social Security,
the only
“beneficiaries”
who have
any claim
against the
public treasury
are those for whom
Congress
has already made an
appropriation,
which can last no longer than a year
——————————————————————
The rest of the
Social Security claimants in America
have no enforceable claim on public funds,
and all they possess is a
“political promise,”
upon which
Congress
can renege at any moment
——————————————————————
If
Congress
decided tomorrow
to cut off all
Social Security benefits,
nobody
would have any claim for payment
——————————————————————
Thus,
Social Security
has never been
and
is not now
a
contract
——————————————————————
See
_____________________________________________
Fleming v. Nestor,
363 U.S. 603, 610,
80 S.Ct. 1367
(1960)
—————————————————————–
https://supreme.justia.com/cases/federal/us/363/603/case.html
—————————————————————–
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=363&invol=603
—————————————————————–
http://www.ssa.gov/history/nestor.html
—————————————————————–
http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1591&context=facpubs&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Fcse%3Fcx%3Dpartner-pub-5347803559129172%253A5886277248%26ie%3DISO-8859-1%26q%3DFlemming%2Bv.%2BNestor%2B363%2BU.S.%2B603%2B1960%26sa%3DSearch#search=%22Flemming%20v.%20Nestor%20363%20U.S.%20603%201960%22
—————————————————————–
http://www.supremelaw.org/authors/mcdonald/vol1-8.htm
—————————————————————–
http://www.cato.org/publications/commentary/is-there-right-social-security
—————————————————————–
http://www.intellectualtakeout.org/library/primary-sources/flemming-v-nestor-1960
_____________________________________________
(“It is apparent that the
noncontractual interest
of an
employee
covered by the Act
cannot be soundly analogized
to that of the
holder
of an
annuity,
whose
right
to
benefits
is
bottomed
on
his contractual premium payments”);
_____________________________________________
Richardson v. Belcher,
404 U.S. 78, 80,
92 S.Ct. 254, 257
(1971)
—————————————————————–
https://supreme.justia.com/cases/federal/us/404/78/case.html
—————————————————————–
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=404&invol=78
—————————————————————–
https://bulk.resource.org/courts.gov/c/US/404/404.US.78.70-53.html
_____________________________________________
(“The fact that
social security benefits
are
financed
in part by
taxes
on an
employee’s wages
does not in itself
limit
the
power of Congress
to fix the levels of
benefits
under the Act
or the conditions
upon which they may be paid”);
_____________________________________________
Califano v. Goldfarb,
430 U.S. 199, 210,
97 S.Ct. 1021, 1028
(1977)
—————————————————————–
https://supreme.justia.com/cases/federal/us/430/199/case.html
—————————————————————–
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=430&invol=199
—————————————————————–
http://www.law.cornell.edu/supremecourt/text/430/199
—————————————————————–
http://www.oyez.org/cases/1970-1979/1976/1976_75_699
_____________________________________________
(Brennan J.) (plurality opinion)
(“Congress
has
wide latitude
to
create classifications
that
allocate non-contractual benefits
under a
social welfare program”);
and
_____________________________________________
United States Railroad Retirement Board v. Fritz,
449 U.S. 166, 174,
101 S.Ct. 453, 459
(1980)
—————————————————————–
https://supreme.justia.com/cases/federal/us/449/166/case.html
—————————————————————–
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=449&invol=166
—————————————————————–
https://bulk.resource.org/courts.gov/c/US/449/449.US.166.79-870.html
—————————————————————–
http://www.law.cornell.edu/supremecourt/text/449/166
_____________________________________________
(“railroad benefits,
like
social security benefits,
are
not contractual
and
may be altered
or
even eliminated at any time”)
………………………………………………..
In
1953,
a
subcommittee
of the
House Ways and Means Committee
conducted hearings
for the
express purpose
of
settling the question
of whether
social security
was
contractual in nature;
see
………………………………………………..
Hearings
of
November 27, 1953
entitled
“The Legal Status of OASI Benefits,”
(Part 6)
………………………………………………..
The
witness
at the
hearing
was
Dr. Arthur J. Altmeyer,
who held several offices in the
Roosevelt administration
………………………………………………..
He was a
member
of the
first Social Security Board,
and by
1946
became the
Social Security Commissioner,
retiring
in
1953
………………………………………………..
During this
hearing,
various parties stated that
social security
was not a contract:
………………………………………………..
At page 918:
………………………………………………..
“Mr. Altmeyer:
* * * There is no individual contract
between the
beneficiary
and the
Government
………………………………………………..
“Mr. Dingell:
Congress
knew that,
did it not?
………………………………………………..
“Mr. Altmeyer:
Yes,
of course
I am sure it did
* * *
………………………………………………..
“Chairman Curtis:
The
individual * * * has no contract?
Is that your position?
………………………………………………..
“Mr. Altmeyer:
That is right
………………………………………………..
“Chairman Curtis:
And
he has no insurance contract?
………………………………………………..
“Mr. Altmeyer:
That is right”
………………………………………………..
At page 937:
………………………………………………..
“Chairman Curtis:
We came to an
agreement
on one of our
major premises,
that
this was no insurance contract,
and
the words did not come from me
………………………………………………..
They were
volunteered
by
Mr. Altmeyer”
………………………………………………..
At page 968:
………………………………………………..
“Mr. Winn:
* * * Mr. Altmeyer,
there being no contractual obligation
between the
Government
and the
worker,
it follows,
does it not,
that the
benefit payments
under
title II
of the
Social Security Act
are
merely statutory benefits
which
Congress
may
withdraw
or
alter
at any time?”
………………………………………………..
At page 969:
………………………………………………..
“Mr. Winn (reading):
‘These are
gratuities,
not based on contract * * *
………………………………………………..
Moreover, the
act
creates no contractual obligation
with respect to the
payment of benefits
………………………………………………..
This
Court
has pointed out the difference
between
insurance
which
creates vested rights,
and
pensions
and
other gratuities,
involving
no contractual obligations,
in
Lynch v. United States,
(292 U.S. 571, 576-577)”
………………………………………………..
At page 994:
………………………………………………..
“Mr. Altmeyer:
I have answered your question, sir
………………………………………………..
If you will refer to
section 1101,
you will find,
as you
read into the record,
that
there are no vested rights,
that
Congress may create different rights * * *”
………………………………………………..
At page 996:
………………………………………………..
“Mr. Winn:
We have also established
that
there is no insurance contract
between the
Government
and the
worker
within a
covered wage
whereby the
rights
and
obligations
of a
party
are set;
that is correct,
is it not?
………………………………………………..
“Mr. Altmeyer:
No
………………………………………………..
You did not establish that
………………………………………………..
That has been
self-evident
since the law was passed in 1935”
………………………………………………..
At pages 1013-14
(the Chair’s concluding remarks):
………………………………………………..
“Chairman Curtis:
Mr. Altmeyer,
it is
apparent
that the
people of the country
have no insurance contract
………………………………………………..
That
does not mean
that
I do not want to do my full part
to
do justice to them
and to
carry out
and
make good
on the
moral commitment
that has been made to them
………………………………………………..
Yet,
notwithstanding the fact
that
they had no insurance contract,
it remains true
that the agency
under your direction
repeatedly in public statements,
by pamphlets,
radio addresses,
and
by other means,
told the people of the country
that
they had insurance
………………………………………………..
I think
a number of people
were misled by that”
………………………………………………..
The position asserted by
Mercier
that
social security
is a
contract,
visible
or
invisible,
thus
does not manifest itself
in the
decisions
of
federal courts
………………………………………………..
See also
_____________________________________________
McLughlin v. CIR,
832 F.2d 986, 987
(7th Cir. 1987)
—————————————————————–
http://openjurist.org/832/f2d/986/mclaughlin-v-commissioner-of-internal-revenue
—————————————————————–
http://famguardian.org/publishedauthors/LawReviews/WiscLawRvw/UsurpOctJurAuth.htm
—————————————————————–
http://www.justice.gov/tax/CooperMemo.pdf
_____________________________________________
(“The
notion
that the
federal income tax
is contractual
or
otherwise consensual in nature
is not only utterly without foundation
but…
has been repeatedly rejected
by the
courts”);
………………………………………………..
and
_____________________________________________
United States v. Drefke,
707 F.2d 978, 981
(8th Cir. 1983)
—————————————————————–
http://www.irs.gov/Tax-Professionals/The-Truth-About-Frivolous-Tax-Arguments-Section-I-A-to-C
—————————————————————–
http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Anti-Tax-Law-Evasion-Schemes-Law-and-Arguments-Section-I
—————————————————————–
http://www.justice.gov/tax/CooperMemo.pdf
—————————————————————–
http://www.fraudsandscams.com/voluntary_compliance.htm
—————————————————————–
http://www.taxprophet.com/tax_scams_articles/QFTPArguments.pdf
—————————————————————–
http://devvyconklin.tripod.com/fakery.html
_____________________________________________
Contentions that
driver licenses
are
contracts
are baseless;
………………………………………………..
see
_____________________________________________
Hershey v. Commonwealth Dep’t. of Transportation,
669 A.2d 517, 520
(Pa.Cmwlth. 1996);
_____________________________________________
and
_____________________________________________
State v. Gibson,
697 P.2d 1216
(Idaho 1985)
—————————————————————–
http://archive.adl.org/mwd/sussman.doc
_____________________________________________
Mercier
also had a
chapter
of his
work
making some
vague contention
about
admiralty
………………………………………………..
There are lots of
phony admiralty arguments
being
promoted
in the
freedom movement,
all
asserting essentially
an
argument
that
admiralty
has invaded
“inland”,
and
“everything is admiralty”
………………………………………………..
I address that groundless argument here
——————————————————————
http://home.hiwaay.net/%7Ebecraft/AdmiraltyJuris.html
_________________________________________________
Mercier
also made snide remarks that the
money argument
relating to
gold,
silver
and
Federal Reserve Notes
that is
popular
with many
is baseless,
but I demonstrate otherwise here
——————————————————————
http://home.hiwaay.net/%7Ebecraft/MONEYbrief.html
_________________________________________________
There are lots of other flaws in
Mercier’s legal argument
about
Invisible Contracts,
but
I will not address them here
………………………………………………..
What is important is that
Phil Marsh
started an
organization
named the
Pilot Connection Society
back at the
end of the 1980s,
and the
central legal argument
that he
promoted
was
based entirely
on
Invisible Contracts
………………………………………………..
Mercier’s
“book”
advocated
that a
citizen
should give
King government
a
wide variety
of
notices
rescinding
the
“Invisible Contracts”,
and
Marsh’s organization
did precisely this
for hundreds of people
………………………………………………..
Marsh
was
prosecuted
and
convicted
and
his appeal appears below:
………………………………………………..
UNITED STATES v. MARSH, 144 F.3d 1229 (9th Cir. 1998)
——————————————————————
http://www.google.com/cse?cx=partner-pub-5347803559129172%3A5886277248&ie=ISO-8859-1&q=UNITED+STATES+v.+MARSH+144+F.3d+122+9th+Circuit++1998&sa=Search#gsc.tab=0&gsc.q=UNITED%20STATES%20v.%20MARSH%20144%20F.3d%201229%201998
——————————————————————
http://law.justia.com/cases/federal/appellate-courts/F3/144/1229/589561/
………………………………………………..
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PHILLIP MARSH,
Defendant-Appellant
………………………………………………..
OPINION
NOONAN, Circuit Judge:
………………………………………………..
Phillip Marsh and his five co-defendants appeal their convictions of conspiring to defraud the United States by impeding the collection of federal income taxes and their convictions of related crimes
………………………………………………..
They also appeal their sentences, which, as to Phillip Marsh total a term of imprisonment of 17 1/2 years, as to his wife Marlene a term of 14 years, and as to the other defendants lesser but still substantial periods of prison
………………………………………………..
FACTS AND PROCEEDINGS
………………………………………………..
Phillip Marsh was the founder in 1990 of
The Pilot Connection Society,
often self-identified by its acronym
TPCS
………………………………………………..
Marsh’s enterprise offered its customers the elusive and enchanting prospect of
untaxing themselves
………………………………………………..
The verb
“untax”
entered the language in
political conflict
in
England
over a
formidable tariff
on
foreign grain
and denoted
political action
by the
government
………………………………………………..
(“Who will untax our bread?”
E. Elliott,
Corn-Law Rhymes,
1833)
………………………………………………..
“Untax,”
as used in the present context,
means
freeing oneself from any legal obligation
to pay any
income tax,
federal
or
state
………………………………………………..
To achieve this exceptional state,
TPCS
offered an
“Untax Package”
………………………………………………..
The package
included
Phillip Marsh’s
The Compleat Patriot,
the Constitution of the United States,
Psalm 91,
and
a photograph of Phillip and his wife suitable for framing
………………………………………………..
It also included
“Very basic untax documents and their instructions”
………………………………………………..
Among them were a form letter to be sent to the
District Director of the Internal Revenue Service
stating that the quondam taxpayer had recently found out that the director had been
“attempting to extort money”
from him and demanding that he
justify his jurisdiction
by a
certified copy
of the
director’s designation of authority
from the
Secretary of the Treasury
………………………………………………..
The letter was not to be xeroxed and was to be handwritten because
………………………………………………..
“[i]t takes 3 to 5 times as long to read hand written material as it does to read typed material — anything to slow the IRS down!”
………………………………………………..
Another form letter, to be similarly copied by hand, informed the
the district director
that the
taxpayer
was not a person
under the
director’s jurisdiction
………………………………………………..
The Untax Package
included
another form by which the
taxpayer
revoked
income tax returns
previously signed by him
and
“cancelled”
his signature
on such returns
………………………………………………..
This form was to be retyped by the
taxpayer,
eliminating the
Pilot Connection letterhead,
and to be notarized
………………………………………………..
The
theory
of the
revocation
and
cancellation,
as explained in the
Untax Package,
was that the
IRS
would use
earlier returns
to prove
that the
taxpayer
was aware
of
his obligation
to
file
and
pay
………………………………………………..
The
revocation
and
cancellation
would, so the
Untax Package
suggested,
eliminate this easy evidence of the
taxpayer’s willfulness
in now refusing to file and pay
………………………………………………..
The reason that the
taxpayer
could so readily remove himself from the
taxpaying rolls
was, according to
TPCS,
that
“income tax is voluntary”
………………………………………………..
(SER 32)
If you didn’t want to pay it,
you didn’t have to
………………………………………………..
TPCS
also advised its members
to resort to
“alternative banking,”
that is,
to pay everything by
cash
or
postal money order,
or
to join something called the
National Commodity and Barter Association
and use
“warehouse banking,”
or to have some trusted associate open an account for one in the associate’s name, or to establish, with TPCS’s help, an
“offshore trust”
………………………………………………..
The reason for adopting one of these
alternative styles
of
money management
was that if you
opened a checking or savings account
you agreed
“that the money belongs to the bank from that moment on,”
with the implication that the
bank
would surrender the money
on levy
by the
IRS
(SER 36)
………………………………………………..
Members
were provided with
forms,
to be
recopied
and
notarized,
of
revocation
of
bank signature cards
(SER 35)
………………………………………………..
Another practical precaution the
TPCS member
was advised to take, in order to assure that
his emancipation
from
taxation
was effective,
was to
file W-4s
with his employers
claiming as many exemptions
as he had thousands of dollars of
income
………………………………………………..
For example,
if he earned $30,000,
he was to
file a W-4
claiming 30 exemptions
………………………………………………..
The member was assured by
TPCS
that there was
no limit
to the number of exemptions
he could lawfully claim
(SER 342)
………………………………………………..
No mention was made of
any duty
to have a reason
for
claiming an exemption
………………………………………………..
Untax Packages,
the contents sometimes different in unessential detail,
were sold by
TPCS
for a price that varied for the occasion
………………………………………………..
At the start the price was over $6,000.
(SER 8)
………………………………………………..
The price announced in
January 1993
was
“$2,100 or 10% of your existing tax problem (if any), whichever is higher.”
(SER 380)
………………………………………………..
As of
January 31, 1990,
TPCS
had only three purchasers
of the
Untax Package
………………………………………………..
By
December 31, 1993,
TPCS
recorded 3,848 purchasers
and
income from them of
$7,638,625.
(SER 19)
………………………………………………..
TPCS
had ordinary members who did not purchase the
Untax Package
but who did pay $45 for membership
………………………………………………..
By the end of 1993 there were 12,617 in this category
(SER 19)
………………………………………………..
They received
TPCS’s magazine,
The Connector
………………………………………………..
The magazine carried the subtitle
“The Voice of Freedom”
and ran a facsimile of an
American flag
as its logo
………………………………………………..
Its pages repeated at their foot the mantra of the Society,
“Income Tax Is Voluntary!”
………………………………………………..
The Connector
informed its readers that there was
no law
making anyone liable
for
income tax
………………………………………………..
TPCS
had a cadre superior to that of mere members, constituted by those admitted to the status of
Associate Member
………………………………………………..
An
Associate Member
had the right
to sell the publications
of
TPCS
………………………………………………..
He paid
$10,000
to acquire the franchise and the
confidential instructions
on marketing that accompanied the franchise
………………………………………………..
By
December 31, 1993,
there were
730 persons
who had been admitted to this
advanced status
………………………………………………..
Apparently some associates got a discount, for the total paid by them recorded in the Society’s book was
$5,281,010.
(SER 19)
………………………………………………..
Phillip Marsh
conceived the idea of
TPCS
………………………………………………..
His wife Marlene joined him in marketing it
………………………………………………..
Together they traveled the
United States
soliciting the purchase of memberships and
Untax Packages
and speaking at
seminars
and
conferences
intended to promote
TPCS
………………………………………………..
Marlene’s daughter,
Jill Spencer,
was an
Associate Member
and the
office manager,
in the latter capacity opening and distributing mail sent to
TPCS,
logging cash received and responding to some customer complaints
………………………………………………..
Her husband
Darrell
was also an
Associate Member
………………………………………………..
He became
TPCS’s
General Manager,
overseeing staff and publications,
revising the
Untax Package,
and writing in his own name in
The Connector,
to explain why paying
income tax
was optional
………………………………………………..
A family operation,
TPCS
was aided by
Joseph Coltrane, alias John Campion,
and by
Douglas Carpa
………………………………………………..
Coltrane
was the
National Coordinator
of the
TPCS sales force
………………………………………………..
Carpa
was not a TPCS member
but from approximately
May 1991
to
June 1992
assisted the marketing of memberships in
TPCS
by putting together trusts in which
TPCS members
might hope to hide their assets from the
IRS
………………………………………………..
He offered his drafts of
trust instruments
only to those who purchased the
Untax Package
………………………………………………..
He assured
members
that
his trusts
were
“old and cold”
and would work to cure even pre-existing problems with the
IRS
because the
trusts
would be predated to a time
before an
IRS lien
………………………………………………..
In its publications
TPCS
asserted that it was
not a tax protester movement,
that it
did not deny the constitutionality
of the
Internal Revenue Code,
and that
it did not maintain
that
Congress lacked the power
to
tax income
………………………………………………..
TPCS
simply taught that
Congress
had not exerted that power
and that the
IRS
was
“a private corporation”
engaged in lawless efforts to extract money from Americans not obliged to pay
………………………………………………..
TPCS
characterized its own teachings as
educational
and added that they were the
exercise of free speech,
protected by the
First Amendment
from prosecution
………………………………………………..
TPCS
was aware that the
IRS
challenged its view of the law,
an awareness reinforced by the rejection that
TPCS’s Untax Package
received when put into practice by members
………………………………………………..
The
IRS
by
1991
was aware of
TPCS
and alert to its raison d’etre
………………………………………………..
In
February 1992
an
affidavit
filed by
IRS Special Agent Diane Messer
characterized
TPCS
as an
“illegal tax protester organization”
and sought a
search warrant
authorizing the seizure of documents pertaining to
TPCS
and to
Phillip and Marlene Marsh
………………………………………………..
The search was to be carried out at the Marshes’ home, which they used as the Society’s headquarters
………………………………………………..
Pursuant to the
warrant,
a comprehensive seizure
was made of the
correspondence,
computers,
and
file cabinets
of the
Society
………………………………………………..
Apparently as a response to the search, on
August 12, 1992,
in
Stockton, California,
Phillip and Marlene Marsh
and
Jill Spencer
signed two papers
alleging
that
certain persons
were
indebted to them
in the amount of
$350,000 each and seeking to place a
commercial lien
on the
property
of the
debtors
………………………………………………..
These persons were
Agent Messer
and
three other IRS agents
involved in the search;
the
United States Magistrates
who had authorized the search;
three United States attorneys
in the
Eastern District of California
and
one United States attorney
in the
Northern District;
Lawrence Karlton,
Senior District Judge
of the
Eastern District;
and
California Superior Court Judge
Jeremy Fogel
………………………………………………..
The liens were filed in
Nevada
and
Washington
………………………………………………..
A year later, in
February 1993,
a
second affidavit
executed by
Agent Messer
asserted that
TPCS
was
“so permeated with involvement with illegal activities”
that a comprehensive search could not separate the few innocent items
“from the vast amount of material which will be relevant evidence of the criminal violations”
………………………………………………..
The Marshes then moved from
California
to
Colorado
and from their home there continued their enterprise under the name the
Liberty Foundation
………………………………………………..
A
third affidavit
executed by
Messer
led to the
comprehensive search
of the
Colorado office
in
December 1993
………………………………………………..
A
grand jury
had already, on
November 29, 1993,
indicted the defendants for
conspiracy to defraud the United States
………………………………………………..
The defendants moved unsuccessfully to suppress the material seized by the government from their files
………………………………………………..
Phillip Marsh
sought with equal unsuccess to introduce a report by a psychiatrist who evaluated him and found him to suffer from delusions; the psychiatrist’s proffered testimony was excluded in limine on the government’s motion
………………………………………………..
Trial followed in the district court for Northern California running slightly over three months, from
August 29, 1994
to
November 30, 1994
………………………………………………..
The jury was unable to agree on the principal counts
………………………………………………..
The
United States
obtained a
superseding indictment
charging all six defendants
with
conspiracy to defraud
the
United States
by
obstructing the lawful functions
of the
IRS,
in particular by their operation and promotion of
TPCS
and the
Untax Package
………………………………………………..
The two Marshes and the two Spencers were personally charged with
tax evasion
and
failure to file a return
………………………………………………..
The indictment also charged all defendants except Carpa with numerous counts of
mail fraud
in the sale of the
Untax Package
to over 3,000 persons
………………………………………………..
The two Marshes and Jill Spencer were charged with
endeavoring to impede the administration of the tax laws
by filing the
commercial liens
in
Nevada
and
Washington
against the
government officials
named in them
………………………………………………..
The
government
announced in its
Status Conference Statement
that it intended to introduce
“as much of its evidence as possible through `summary witnesses'”
………………………………………………..
The defendants filed a
joint motion in limine
opposing this procedure:
“it appears that the government intends to avoid cross-examination of the alleged mail fraud victims by hearsay summaries”
………………………………………………..
The
government
had proposed that
IRS agents
read excerpts from the
TPCS files
………………………………………………..
The defendants objected that the material from
TPCS files — complaint letters from persons saying that they had been deceived by TPCS — fell within no exception to the hearsay rule
………………………………………………..
The defendants asserted that the procedure would violate their
Sixth Amendment right
to confront their accusers
………………………………………………..
Citing
Coy v. Iowa,
487 U.S. 1012
(1988),
——————————————————————
U.S. Supreme Court
No. 86-6757
APPEAL FROM THE SUPREME COURT OF IOWA
——————————————————————
https://supreme.justia.com/cases/federal/us/487/1012/case.html
————
APPEAL FROM THE SUPREME COURT OF IOWA No. 86-6757
Iowa District Court for Clinton
County
——————————————————————
http://laws.findlaw.com/us/487/1012.html
——————————————————————
http://www.oyez.org/cases/1980-1989/1987/1987_86_6757
_________________________________________________
where the
Supreme Court
held it
unconstitutional
to place a screen shielding the accusers from the defendant,
the defendants here said:
“Agent Durrette would be the screen between the defendants and their alleged victims”
………………………………………………..
A hearing was held the following week before the judge who had presided at the first trial in order to schedule the time allowed for trial
………………………………………………..
The court expressed dissatisfaction with the amount of time
“wasted”
by both sides in the first trial
………………………………………………..
The court stated that the jury had heard the details of the untaxing scheme
“ad nauseam.”
………………………………………………..
The government argued that the first jury had been
“affected by the government’s inability to present the case in a way that educated them as to what our theory of the case was, what our evidence meant, during the presentation of the evidence.”
………………………………………………..
The court asked,
“What stopped you?”
………………………………………………..
The government replied that the court had stopped it from having a witness read from the material seized in the searches
………………………………………………..
The government went on to say that it had to prove the defendants’ state of mind as to both the mail fraud counts and the tax evasion counts
………………………………………………..
The court:
“It seems to me that is proved by the quality of the evidence as opposed to the quantity of the evidence.”
………………………………………………..
The court went on to say:
“I thought the victims were a disaster for the government . . . .
[T]he victims were particularly unsympathetic
They were people who were already in serious trouble with the Internal Revenue Service, were essentially tax cheats themselves; and were put on the witness stand with the representation that they were somehow victimized by the defendants . . . . And I’m convinced that your case ran aground with that first group of witnesses.”
………………………………………………..
The district court never formally ruled on the defendants’ in limine motion to exclude the complaint letters; the government concluded that it had a green light
………………………………………………..
On
November 9,
the government offered
Agent Durrette
to summarize material taken from the files of TPCS
………………………………………………..
The defendants stipulated that the material came from the files — the government would not have to prove where each piece of correspondence came from
………………………………………………..
The court described the stipulation
………………………………………………..
It was
“that these TPCS client file documents would simply be stipulated as to their admission into evidence without the necessity of putting a witness on the stand to lay any foundation as to these documents
And the stipulation would be that these documents were found in one or the other of the facilities associated with the Pilot Connection Society.”
………………………………………………..
The government answered, “Yes.”
………………………………………………..
Agreeing, the defendants again vigorously objected to the government’s presentation of the files through testimony about their contents by Durrette
………………………………………………..
The government replied that proof of the defendants’ state of mind was
“the heart and soul”
of its case
………………………………………………..
Durrette took the stand
………………………………………………..
The government had prepared an extensive file of material taken from TPCS with duplicates of a number of letters to be given as handouts to the jury
………………………………………………..
The material consisted substantially in statements of government officials as to what the income tax law was, statements of other persons including officers of the Church of Jesus Christ of Latter Day Saints on the obligation to pay income taxes, and letters from purchasers of the Untax Package complaining that the Package did not work or, worse, that they had been fraudulently induced to buy it
………………………………………………..
The defendants objected repeatedly to the procedure — to Durrette’s reading of views on the law as argument by the government, to Durrette’s reading of selected passages from the correspondence as not summarizing but highlighting, and to the reading of the complaints as violative of the Confrontation Clause
………………………………………………..
Every objection was overruled by the trial court
………………………………………………..
The second trial was two months shorter than the first
………………………………………………..
On
December 13, 1995
the jury found all six defendants guilty of violating
18 U.S.C. § 371
——————————————————————
http://www.law.cornell.edu/uscode/text/18/371
_________________________________________________
by conspiring to defraud the
United States
in the collection of income taxes
………………………………………………..
Phillip and Marlene Marsh and Jill Spencer were convicted of two counts of violation of
26 U.S.C. § 7212(a)
——————————————————————
http://www.law.cornell.edu/uscode/text/26/7212
_________________________________________________
by corruptly endeavoring to obstruct the administration of the income tax laws by filing the liens
………………………………………………..
Both the Marshes and both the Spencers were convicted of violating
26 U.S.C. § 7201
——————————————————————
http://www.law.cornell.edu/uscode/text/26/7201
_________________________________________________
by tax evasion and violating
26 U.S.C. § 7203
——————————————————————
http://www.law.cornell.edu/uscode/text/26/7203
_________________________________________________
by failing to file tax returns
………………………………………………..
Both Marshes were acquitted of ten counts of mail fraud and convicted of ten counts of mail fraud in violation of
18 U.S.C. § 1341
——————————————————————
http://www.law.cornell.edu/uscode/text/18/1341
………………………………………………..
Both Spencers were similarly acquitted, Darrell of five, Jill of nine counts, and similarly convicted of nine mail fraud counts; and Coltrane was convicted of six mail fraud counts
………………………………………………..
The court denied
Rule 29 motions,
including motions by the Marshes and Jill Spencer to dismiss the obstruction charges on the ground of lack of venue
………………………………………………..
On
June 26, 1996
the court pronounced sentence
………………………………………………..
Phillip Marsh was sentenced to 5 years imprisonment for conspiracy to defraud the United States; 5 years imprisonment for each of his ten mail fraud convictions; 5 years imprisonment on each of two convictions of tax evasion; 3 years imprisonment for each his two endeavors to impede the administration of the tax laws; and 1 year imprisonment for each conviction of willful failure to file tax returns
………………………………………………..
The sentences for conspiracy, tax evasion and 9 of the 10 mail fraud counts were to be served concurrently with each other
………………………………………………..
The 3 year sentences for the endeavor to impede were to be were to be served consecutively to the other counts and to each other
………………………………………………..
The 1 year sentences for the two failures to file counts served consecutively to each other and the other counts
………………………………………………..
The sentence on the two tax evasion counts and two failure to file counts totals 7 years
………………………………………………..
The 5 year sentence for the tenth mail fraud charge was to be served consecutively to the extent necessary to produce a total sentence of 17 1/2 years
………………………………………………..
Marlene Marsh was sentenced to 5 years imprisonment for conspiracy to defraud the United States; 5 years each for the 10 mail fraud counts, 5 years each for the two tax evasion counts, 3 years on each of the 2 counts of endeavor to impede, 1 year on each of the 2 convictions of willful failure to file
………………………………………………..
The 3 year sentences for endeavor to impede were to be served concurrently with each other and consecutively to the other sentences, the 1 year sentences for failure to file were to be served consecutively to each other and to the other sentences, and the 5 years for the two tax evasion counts and 10 mail counts were to be served concurrently to each other and consecutively to the other sentences to the extent necessary to produce a total sentence of 14 years
………………………………………………..
The sentence on the two tax evasion counts and two failure to file counts totals 7 years
………………………………………………..
Darrell Spencer was sentenced to 5 years imprisonment for conspiracy to defraud the United States, 5 years on each of 9 mail fraud convictions, 5 years on each of 2 tax evasion convictions, and 1 year on each of 2 failure to file convictions
………………………………………………..
The sentence for conspiracy, the 2 tax evasion sentences, and 8 of the 9 mail fraud sentences were to be served concurrently, as were the sentences for failure to file
………………………………………………..
The sentence on the two tax evasion counts and two failure to file counts totals 5 years
………………………………………………..
The ninth mail fraud sentence was to be served consecutively to the other sentences to the extent necessary to produce a total of 7 1/4 years
………………………………………………..
Jill Spencer was sentenced to 5 years of imprisonment for conspiracy to defraud the United States, 5 years on each of 9 mail fraud convictions, 5 years on each of 2 tax evasion convictions, 1 year on each of 2 failure to file convictions, and 3 years on each of 2 convictions to impede
………………………………………………..
The sentences for conspiracy, tax evasion and the 9 mail fraud counts were to be served concurrently, as were the sentences for failure to file
………………………………………………..
The sentence on the two tax evasion counts and the two failure to file counts totals 5 years
………………………………………………..
The two 3 year sentences for corrupt endeavor to impede were to be served concurrently to each other but consecutively to the other sentences to the extent necessary to produce a total sentence of 7 1/4 years
………………………………………………..
Coltrane was sentenced to 5 years for a conspiracy to defraud the United States and 1/4 year imprisonment on one count of mail fraud, the sentences on the other counts of mail fraud to be served concurrently
………………………………………………..
Carpa was sentenced to 4 3/4 years on conviction of conspiracy to defraud the United States
………………………………………………..
The defendants appeal
………………………………………………..
ANALYSIS
………………………………………………..
All defendants contend that they were denied the right to confront the witnesses against them when Agent Durrette read to the jury excerpts from material found in the defendants’ files
………………………………………………..
The following are from the excerpts read aloud to the jury by Agent Durrette:
(The excerpts are exact, but not given in full; the authorships and dates are as read)
………………………………………………..
1. “Some
so-called tax protesters
are
making speeches
and
offering seminars
around the country
at which
serious misrepresentations
about the
tax laws
are
being presented
to the
public
as
fact”
Fact Sheet
………………………………………………..
2. “Indeed, it is strange how the mind justifies things
For example, the way you
justify `untaxing’ people
by
blatantly misrepresenting the truth
about
your so-called `untaxing’ program
for the
sole purpose
of
lining your pockets
with
unsuspecting victim’s hard earned money
while
you sit idly by and watch
the
Franchise Tax Board
and
Internal Revenue Service
come in and
steal everything they have — knowing full well
that
this will be the outcome”
Letter from
Shawn O’Connor,
7/6/92
………………………………………………..
3. “Why would I sent you a
check
for
$8,745
when
you have not
got the lien off my home?”
Letter from
Curtis Howard
5/29/91
………………………………………………..
4. “To date, the
Pilot Connection System
has not given any relief
and
has only compounded my tax problems
On the basis of fraud,
I herewith
demand the return
of my
$2,000 plus $499.”
Letter,
6/3/91
………………………………………………..
5. “[The
failure to succeed
in
not paying taxes]
makes our statement,
`stop paying taxes permanently and legally’
far from being the truth”
Letter from
Hugh Bodey
7/6/91
………………………………………………..
6. “You
did not `untax me legally and permanently’
as promised — and,
I am confident,
that and
if and when I have to go to court,
you would drop me
as you have others
that I am hearing about”
Letter from
Hugh Bodey,
8/10/91
………………………………………………..
7. “The
program
was
sold to me
under,
what I now consider
false pretenses
In fact,
I would go so far as to say
it was out and outright
fraud”
Letter from
Roger Hawks,
8/12/91
………………………………………………..
8. “Due to the
facts
provided to us by you,
some of which we now know
to be
out and out lies,
we signed on with your
organization”
Letter from
Arthur and Donna Fuller,
8/15/91
………………………………………………..
9. “Bob Kane [a lawyer]
told
our company attorney
(see memo)
that I had a
zero percent chance
of
ever eventually winning
against the
IRS”
Letter
8/16/91
………………………………………………..
10. “Despite all the
Pilot Connection’s
and
Greg Galaski’s
efforts,
I was
given two options
by a
federal judge:
I could
comply with the court’s order in person
or
at the IRS office,
or
I could comply
from the
adult detention center
in
downtown Los Angeles”
“I am asking nothing of the
Pilot Connection
now,
Darrell,
because
I don’t believe in it anymore
The only thing I have asked
is that
Don Held
make good on his promise
to
give me back
the
money I paid him
if the
untax program didn’t work”
Letter from
Dan Barwick,
8/3/91
………………………………………………..
11. “When I joined the
Connection
I thought they had found that
simple key
to
avoid taxes
and a
`voluntary’
part of the
IRS system,
if people qualified
As it appears now
it doesn’t work
so
I have decided
to look for work elsewhere”
Letter from
Ogden Kraut,
8/15/91
………………………………………………..
12. “When I joined the
Pilot Connection,
I believed what I was
told
and
being naive
about
patriot issues
didn’t have
the
knowledge
to
spot defects and lies
in your program”
Letter,
10/14/91
………………………………………………..
13. “I am in a situation now
that
I have no income
and
I had to borrow
the
$4,000
that
I paid
to the
Pilot Connection
and
I’ve received nothing
but broken promises and lies”
Letter,
11/1/91
………………………………………………..
14. “When I first became involved
with your group
I believed what you were saying
was true and factual
But the longer I used the
Pilot Connection’s system
the more it becomes evident
the
system does not work”
“You have been dishonest
in your allegations
and
letter process
and
I feel
that
I cannot do business with
anyone
or
any company
or
group
that is deceitful”
“You have
fraudulently taken money from me
and at this time
I wish to have all monies
returned to me”
Letter,
11/29/91,
………………………………………………..
15. “I cannot sell a bill of goods
to someone
that
I can’t even deliver
for
myself and my wife
We did not have a problem
when we started this program,
but
we seem to be developing one
and
my wife is really scared,
because
she is afraid of going to jail
and
losing her job
where she has 26 years service
and has
only 4 years to go
before retirement”
Letter from
Darrell Hoover,
12/18/91
………………………………………………..
16. “We have found,
in doing further research,
at the law library,
that
your organization
is
teaching incorrect principles
dealing with
some very serious legal matters”
Letter from
Robert and Leah Aycock,
12/18/91
………………………………………………..
17. “I don’t think
you realize
the
sad situations
a lot of us are in
You talk a good line over the phone,
but
where’s the beef?”
Letter to
Pilot Connection/Phil Marsh
………………………………………………..
18. “We have done everything
in the pamphlet
plus every step
Jim Caler said
and still problems
Federal and state
has
attached both of our wages again,
but
this time
the
interest and penalties
are even higher . . .
Take us off
the
Pilot Connection”
Letter,
1/22/92
………………………………………………..
19. “This is
our letter of resignation
due
to the
fact
that I believe
your material and system
of
removing people
from
state and federal taxes
is fraudulent”
Letter,
3/2/92
………………………………………………..
20. “I paid you
$15,000
to take care of
my liens and levies
and
I expect to see this accomplished
I have become very insecure
with the
lack of performance”
Letter,
2/5/92
………………………………………………..
21. “Now I don’t know what I have to do
I still have
a lien against me
They still
did not remove the lien”
Letter,
2/25/92
………………………………………………..
22. “Everything we have been told
has been wrong
and
we no longer
have any confidence
with you
and
your organization”
Letter
5/16/92
………………………………………………..
23. “I learned
that
the rest of your stupid arguments
are
`frivolous’ arguments
I call them
`stupid’
because
the courts
are
getting pissed off
They told us [patriots]
over and over
that these are
frivolous arguments
that
they don’t want to hear any more
They take the attitude,
and rightly so,
that
we are wasting their time,
and
the taxpayers’ money,
with arguments
that
have repeatedly lost
They have no patience
with people
using
these stupid arguments”
Letter from
Roy Buchanan
………………………………………………..
24. “I am writing
to
express my disappointment
in
your `untaxing’ program . . . .
I also followed
your lien and levy procedures,
but
to no avail
I still have
a
tax lien on file
and
levy notices
still follow me”
Letter from
Les Johnson
8/11/92
………………………………………………..
25. “[My attorney said]
that
the package
was
not legally sound
for me”
Letter from
Michael Hutton
9/9/92
………………………………………………..
26. “According to this
final notice,
I do not believe
that I have
been untaxed
by the
Pilot Connection”
Letter
dated 9/28/92
………………………………………………..
27. Your untax program
costs me
$1,100
and
was absolutely worthless . . . .
Thanks a lot
for
wasting my hard-earned
retirement savings”
Letter from
David Mayo
………………………………………………..
28. “Upon further
investigation and study
I have found
your information
to be
incomplete and misleading
The damage done
as a result
of
placing my hope and trust in you
has
created a complexity
of
criminal violations
that
could cost me my
family,
home,
business
and, most importantly,
my personal freedom”
Letter from
Ina Gregory
10/1/92
………………………………………………..
29. “He inferred that the
IRS
does not pay attention to the
notice of revocation
and
other strategies used
by the
Pilot Connection
That I might end up paying
the
IRS
and the
P.C.,
that the
Pilot Connection
was a scam
and
Phil
is mainly out to get
people’s money”
Letter
10/28/92
………………………………………………..
30. “What kind of people are you anyway?
You take my money
and
your organization
does not perform
what you promise
and
then become abusive
and
threatening to me? . . .
I also want my
$3,500
back A.S.A.P.”
Letter
dated November 1992
………………………………………………..
31. “I have talked at length
with people in my town
about all that I read
in your book
And most of the response
I have gotten is — `sure,
I know someone honest tried this
and
they are serving time in Leavenworth'”
Letter
11/1/92
………………………………………………..
32. “Pilot Connection Society
has
made false claims
to its
untaxed members,
which
has misled them
and
also places them
and
their families
in
jeopardy
of
being convicted
of
tax evasion”
Letter
dated 11/18/92
………………………………………………..
33. “They levied my wages anyway
What kind of bull is this?
I would like my
$1,500 refunded
How can you folks
in
good conscience
keep on with this crap?
Like I said,
I do
want a refund
Because
you did nothing at all to earn
the
$1,500
It
seems to be a big joke”
Letter from
Chris Yost
………………………………………………..
34. “This letter will serve
as
my formal resignation
from the
Pilot Connection Society;
effective upon receipt
My decision
to
enter into an agreement
with
your organization
was based on
misrepresentations
made by
you
and
your employees
The
assistance
and
services
I was led to believe
I would receive
was never provided
I have witnesses
and
proof of this fraud”
Letter from
Ed Maxim
………………………………………………..
35. “In today’s trial,
the
judge
looked at the
P.C. material I had included
in my brief. . . .
The judge ridiculed it;
said that
all of those types of approaches
had long since
been tried
and
rejected”
Letter from
Albert Baxter
12/8/92
………………………………………………..
36. “You
have claimed
to
have `untaxed’
in excess
of
17,000
people
of which surely
1 percent
would have received
the
letters
from the
IRS . . . .
I am not asking for even
1 percent
of
documented proof
of
these letters
but
only of 1/2 percent
of
documented proof
which would be
85 letters
(I don’t even believe
that
you can provide
10 percent
of that)”
Letter
1/13/93
………………………………………………..
37. “We trusted
Liberty Foundation (Pilot Connection)
only
to realize
that our
3 and a half year battle
with the
IRS
was
all for nothing
It disrupted our lives
During wage garnishments
we
had no money
Try explaining
to the
children
why there won’t be
any Christmas
Sob stories to you,
real life to us
We lost a lot
of
money
by trusting
in the
Liberty Foundation
Worse than that,
we lost our liberty,
the very thing your company offers”
Letter
11/3/93
………………………………………………..
The government
argues vigorously
that
this mass of accusations
was admissible
because
the jury was instructed
that
the accusations were admitted
not for the truth of the statements
but to show
the
state of mind of the defendants
That was certainly
the
government’s rationale
The difficulty
with
the government’s position
is that
the jury was not instructed
to
limit its consideration
to the
defendants’ state of mind
In its brief on appeal
the
government points
to
a statement of the court
made on
November 20
in reference to
a document then read to the jury
This instruction
has
no apparent relevance
to
the documents read to the jury
on
November 9
An examination
of
the record
on
November 9
shows that,
after being reminded
of
the defendants’ in limine motion,
the trial court
told the government
to proceed
At this time,
at the start
of
Durrette’s reading,
the jury
was
given no instruction whatsoever
as
to its purpose or limits
………………………………………………..
Both the
prosecution
and
defense
counsel
stated that they had
“cautionary instructions”
to offer
The government
said its
was
the instruction
that
the court
had given during
the
initial jury instructions
The court,
in fact,
gave no instruction,
so we
are
uncertain what was offered
on
November 9
However,
we have reviewed
the
preliminary jury instructions
to see
if they did contain relevant cautionary words
The
most relevant
of
these instructions
are
as follows:
………………………………………………..
Evidence
may
be introduced
for
the limited purpose
of
establishing
that
the defendants were aware
of
materials that expressed opinions
in conflict
with
those expressed
by the
Pilot Connection Society
regarding
the success
of
a tax-related program
marketed by the tax — by the
Pilot Connection Society
Before you may consider
any such evidence
against a particular defendant,
you must find
that
the defendant knew
of
the existence
of
these materials
or
their contents
(Tr. 11/2/95, vol. 2, at 143)
………………………………………………..
An intent to defraud
may
be demonstrated
by
the scheme itself
Similarly,
the defendant’s knowledge
of
a false statement
or
his
or
her
reckless indifference
to
the truth
or
falsity
of
that statement
can demonstrate
an
intent to defraud
(Id. at 149)
………………………………………………..
In determining
whether or not
the
government proves
that
a defendant acted
with
an intent to defraud
and
to obtain
money
or
property
by
means
of
false promises
or
statements
or
whether defendant acted in good faith,
you must consider all
of
the evidence
in
the case bearing on defendant’s statement
(Id. at 150)
………………………………………………..
None
of
these instructions limit
the
jury’s consideration
of
material
from
the files
for
the truth
of
what is contained in them
………………………………………………..
The
first time
that
the court
told
the jury
why
the documents
were
being read — sometime into the reading — the court said,
“And it’s clear
from
the court’s instructions
to
the jury — and,
ladies and gentlemen,
if any of you
have
any questions,
please let me know
But
it’s clear
that
the documents themselves
are
the evidence
And they
are
being introduced
to
show what documents
were
at the various locations
at
the various times
that
the witness testified about”
A little later in response
to
another objection
from
the defendants,
the court said:
“This is a document
in
the files
of the
Pilot Connection Society
found
on the date indicated,
and
that’s what the document
is
being offered for
Again,
is there any question
that
any juror has
that
that is the evidence
which
is being offered?”
Neither of these instructions
tells the jury
not to consider
the
truth of the matters read
………………………………………………..
The
first time
an instruction
on
the defendants’ state of mind
was given
was in reference
not to accusations against TPCS
but
to an objection
to
Durrette reading
from
an IRS tax manual
found in the files:
“The court is permitting
the government to argue cases
that
have been overruled
as
a matter of law
and
citing legal principles
that
are no longer valid
as if that’s notice of anything,
and
to that I most strenuously object
and
move to strike”
The
court responded:
“Well,
the objection is overruled
This is clear
this
is an IRS tax manual
The
exact current status
of
the propositions
of
law referred to in the manual
are
not issues
for
the jury to decide
They
are not necessarily part
of
the instructions
What this is being offered for
is
a document
that
was in the files
at
the place
and
at the time indicated
by
Mr. Durrette
And
that bears on it being offered
with respect
to
the intent issues
in
this case vis-a-vis
the
present defendants
But
we are not here to argue the law”
(Tr. 11/9/95 at 78-79)
This instruction only indicates
the purpose
of
the reading of material
on
the tax laws
………………………………………………..
To the next objection by defendants
the court said:
“Counsel,
I have been very patient this morning
Perhaps
that’s
a change in my attitude,
but
I am beginning to lose patience
You
have made a number of objections
to
this evidence
I have ruled on these
It’s clear
what
the evidence is being offered for
The jury
has
been repeatedly instructed on this
The jury
has
been told
that
what they are receiving
are
excerpts of documents
that
are being admitted into evidence,
and
for illustrative purposes
Ms. Teters
and
the witness
are
going through
and
pointing out certain things
that
the government
contends are of significance
Now,
it’s quite clear
what
is going on,
and
it need not be a process
that
is periodically punctuated
by
speechifying by lawyers
Your objections are preserved,
and
so there isn’t any need
for
undue interruption
and
prolongation of this process”
………………………………………………..
The
first time
any instruction
regarding
complaint letters
or
similar materials
was given
was
much later
in
Durrette’s testimony
when
he read
from
a Clarion Ledger,
Jackson, Mississippi,
editorial
dated March 28, 1990,
which stated:
“Tax protesters
become
a part
of
the con job
that
is played
on
the American people”
Counsel
for
the defendants objected:
“I am at a loss
as
to exactly what these editorial comments
are
providing notice of
except
the opinion
of
someone who wrote an editorial”
The court responded:
“This is simply being offered
for
the state of mind
of
the defendants”
(Id. at 111-12)
Much later
in
Durette’s reading,
a
letter
of
Rudy and Gloria Medina
resigning from TPCS
was
read
followed
by
a complaint letter
dated September 3, 1991
The defense again objected
to
these letters as hearsay
The court stated again:
“Well,
as we
discussed in the past,
this
is being offered
for
the state of mind
of
the defendants”
(Id. at 185)
………………………………………………..
It is apparent
from
this review
that
on three occasions
the jury
was told
that
particular documents
being read
related
to the defendants’
“intent”
or the defendants’
“state of mind”
At no time
was
the jury instructed
that
they were not to consider
the accusations
as conveying truth
about the facts alleged in them
At no point
was
the jury told
that
these were limiting instructions
which
confined the way
they must look at the evidence
………………………………………………..
In the
first of the rulings
that
responded to defense objections,
twice repeated,
the court
told the jury merely
that
the documents being read
had
been found at TPCS headquarters
The court assumed
that
instructing the jury
that
what was being established
by
the reading
was
that the documents were found
at TPCS headquarters
operated as a restraint
on
the jury’s use of the documents
But
for all the jury was instructed,
it could do whatever it wanted
with
what was found at TPCS headquarters
………………………………………………..
If these accusations
were
to be admitted,
it
was incumbent
on
the court
to
give clear instruction
to
the jury
distinguishing
what they could treat
as
showing the knowledge of defendants
and
what they could not treat
as evidence of crime
Aside from
the three brief
and
particular references cited above,
no instructions at all
were
given on this vital point
The
three brief references
were
entirely insufficient
to clarify a concept
that
even for lawyers
is not an easy one — the difference between
taking a statement for its truth value
and
limiting it simply
to
the effect
of
the statement
on
the mind
of
the person exposed to it
Even to
a person trained in the law
it takes a mental effort
of
some magnitude
to
hear a letter strongly manifesting
the mind of the letter-writer
as
to the truth of events
the letter-writer says
have happened
and
to distinguish
between
the asserted truth
and
the effect of the communication
on
the mind of the recipient
of the letter
There are cases
in which such letters
have
been admitted to show
the knowledge of the recipient,
See e.g.
United States v. Lasky,
600 F.2d 765, 769
(9th Cir. 1979);
——————————————————————
http://openjurist.org/600/f2d/765/united-states-v-lasky
_________________________________________________
United States v. Farkas,
935 F.2d 962, 965
(8th Cir. 1991),
——————————————————————
http://openjurist.org/935/f2d/962/united-states-v-farkas
_________________________________________________
but always
with
a clear instruction
that
the letters should not be considered
for
the truth
of
the matters contained therein
Without such limitation
the accusations act
as testimony against the defendants
………………………………………………..
The instructions
ultimately given
the jury
as it retired
did not cure the omission
The jury
was told
that
only defendants who
knew
or
“should have known”
of
the documents
should be charged
with notice
of
their contents
This instruction
in no way limited
the jury
in
considering the truth
of
the contents
The jury
was also told
that
it should observe
any limiting instructions
that
had been given
in
the course of the trial
No instructions
had been given
telling the jury
that
it could not take the truth
of
the 37 accusations enumerated above
into account
………………………………………………..
The government
does not argue
that
the defendants
waived their Confrontation Clause objection
by
not raising it again
when
the final instructions were prepared
The defendants
were
not obliged to object again
when they had made
their in limine motion
and
formally presented
it
to the court
which disregarded it
and
which rebuked the defendants
with some asperity
when
they raised the objection again
during Durrette’s testimony
The defendants
did not have
to
perform a vain act
………………………………………………..
As Durrette
read material into the record
unlimited in its bearing,
abundant hearsay
was presented
to
the jury
The right secured
to
the defendants
by
the Sixth Amendment
was violated
The right
to
cross-examine one’s accusers
is fundamental
in our system of justice
Olden v. Kentucky,
488 U.S. 227, 231
(1988)
——————————————————————
https://supreme.justia.com/cases/federal/us/488/227/
——————————————————————
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=488&invol=227
——————————————————————
http://www.invispress.com/law/evidence/olden.html
_________________________________________________
Cross-examination
is
“the principal means
by
which the believability
of
a witness
and
the truth
of
his testimony
are tested”
Davis v. Alaska,
415 U.S. 308, 316
(1974)
——————————————————————
https://supreme.justia.com/cases/federal/us/415/308/
——————————————————————
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=415&invol=308
——————————————————————
http://uscivilliberties.org/cases/3673-davis-v-alaska-415-us-308-1974.html
——————————————————————
http://www.casebriefs.com/blog/law/criminal-procedure/criminal-procedure-keyed-to-israel/the-trial/davis-v-alaska/
………………………………………………..
When a
constitutional right
is violated
by
trial rulings,
we are bound
to
determine whether the error
was harmless
beyond a reasonable doubt
Chapman v. California,
386 U.S. 18, 24
(1967)
——————————————————————
https://supreme.justia.com/cases/federal/us/386/18/case.html
——————————————————————
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=386&invol=18
——————————————————————
http://www.casebriefs.com/blog/law/criminal-procedure/criminal-procedure-keyed-to-saltzburg/post-conviction-challenges/chapman-v-california-2/
——————————————————————
http://legal-dictionary.thefreedictionary.com/_/dict.aspx?rd=1&word=Harmless+error+rule
_________________________________________________
The government
here
had a strong case
based on the contents
of
the Untax Packages
that
the defendants put together
and
promoted
The defendants
had
a not very plausible defense
that TPCS
was
an educational enterprise
exercising its right
to
free speech
If that defense
was to have any chance
of
creating a reasonable doubt
in
the jurors’ minds,
the jurors had to credit
the defendants with honesty
The
hearsay accusations
destroyed that chance
Taken as true,
as the jury was allowed to take them,
the accusations
established
that
the defendants were
hypocrites,
liars,
callous exploiters of their victims,
operators of a major scam
………………………………………………..
The
37 accusations
were
overwhelming evidence
of
the scheme
of
mail fraud
charged
in
the indictment
and
exemplified
in
the particular mail fraud counts
The
three live witnesses
to
mail fraud
that
the government produced
were
David Anderson,
who
admitted to having embezzled taxes
he withheld from his employees
before he had any contact
with TPCS;
Debbie Long,
whose disillusionment
with TPCS
came
when the State of California
levied on her wages;
and
Clifford Koeper,
who
believed that Untax Package
did not work
but
became an Associate Member
of
TPCS
and sold
the Untax Package
to
two others
The burden
of
the government’s mail fraud case
was
carried largely
by
the accusations
read into the record
When
the government
on appeal
states there was
“ample evidence
the TPCS members
did not get
what they paid for,”
(Appellee Br. at 46)
(italics in original),
and that
“there is
no better proof
of
the fact
that
TPCS members
did not get what they paid for
than
the testimony
of
the victims,”
(Id. at 47),
the government
does not cite the testimony
of
Anderson,
Longer,
and
Koeper,
but
appears to invoke
all the accusations
that
become part
of
what the jury had before it
………………………………………………..
The evidence
proving the existence
of
a scheme
to
commit mail fraud
was
linked to the evidence
proving the conspiracy
to
defraud the United States
Count One
of
the indictment
listed
the fraudulent recruitment
of
taxpayers
by
TPCS
as
overt acts
carrying out the conspiracy
Addressing the jury
in closing arguments,
the government specifically urged
that
the defendants’ deceitful recruiting
of
TPCS members
was proof
of
the conspiracy
to
defraud the United States
(“they lie
as to
how many people
have been successfully untaxed,
they lie
as to
the numbers of people in the organization,
and
the effectiveness
of
their methods”)
The government
immediately added:
“The instructions
that
the judge
has
given you
are
that you need only find
that
one overt act,
as listed
in
the indictment,
was committed in furtherance
of
the conspiracy that’s alleged there”
………………………………………………..
The
accusations of fraud
on
the TPCS members
proved,
or
could have been taken by the jury as proving,
both
the mail fraud counts
and
the conspiracy count
It is difficult for us
to determine
beyond a reasonable doubt
that
they did not function in this way
When you hear
that
defendants have told
out-and-out lies,
run a scam,
and
used false pretenses,
and
you are not limited
how
you can use this evidence,
it would be entirely natural
to
credit the accusations so vigorously advanced
as true
In confirmation
of
this conclusion
is
the difference
in
the outcome
of
the two trials
When the
government
had to produce
a number of live witnesses
who were themselves tax cheats,
the jury hung
With these inconvenient witnesses eliminated,
the jury convicted
The palpable difference
in result
makes likely
that
the change of evidence
to
the presentation of hearsay
tipped the scales
We cannot say
beyond a reasonable doubt
that
the violations
of
the Confrontation Clause
did not produce result
The convictions
of
the Marshes,
the Spencers
and
Coltrane
of
mail fraud
and
of conspiracy to defraud the United States
must be set aside
………………………………………………..
Carpa presents a different case
The jury was explicitly instructed
not to consider against him
the letters
read from the files
The jury
is presumed
to have obeyed this instruction
However,
the letters
went very far
to show
that
TPCS
was
a criminal conspiracy,
and
the existence
of
this conspiracy
had to be proved
in order
to
make Carpa a conspirator
The reversal
of
the convictions
of the
Marshes,
Spencers,
and
Coltrane
for conspiracy
leaves Carpa
without other convicted conspirators
and
with proof of his part
in
a conspiracy dependent
on
the evidence showing
TPCS
to be a conspiracy
Under these circumstances,
Carpa’s conviction of conspiracy
must also be reversed
………………………………………………..
The Commercial Liens
The filing
of
baseless liens
to
harass government officials
has
become a standard tax protestor ploy
The liens
are easy to file
and
not easy to remove
No judge
or
other officer
of the
government
would like to have them filed
on
his
or
her
property
They bear the mark of malice,
as they do in the case
where they appear
as
a mean response
to
a lawfully authorized search
Nonetheless,
the crime
can be punished only
in accordance with law
………………………………………………..
The indictment
charged
that
the Marshes
“did corruptly endeavor
to
intimidate
and
impede”
certain officers of the United States
by
the filing
of
the liens
in
Nevada
and
Washington
The officers
were located
in the
Eastern
and
Northern
Districts of California
None were in
Nevada
or
Washington
The liens
were
mailed for filing
from
the Eastern District of California
The question
was put to the jury
whether
venue for the crime
could be found
in
the Northern District
The jury’s verdict
of guilty
so found
The affected defendants
challenge the finding
………………………………………………..
The government’s argument
is
that an effect of the filing
of
the liens
was an impact
on
the IRS officers
in
San Jose, California,
who
were conducting a criminal investigation
of
the defendants
The government invokes
United States v. Angotti,
105 F.3d 539
(9th Cir. 1997)
——————————————————————
http://law.justia.com/cases/federal/appellate-courts/F3/105/539/599178/
_________________________________________________
(venue
for
the prosecution
of
the crime
of
making a false statement
in violation
of
18 U.S.C. § 1014
lies
where
the crime is completed
by
the statement having effect)
The problem
with Angotti
as analogy
is
that the crime
of
endeavoring to impede the IRS
is complete
when the endeavor is made
The government
did not have to show
that
its agents
abandoned their investigation
or
even that the agents were anxious
about the effect
of
the liens
on their credit
No effect need be proved
The filing
of
the lien
is
the crime
The government
itself presented
this exact description
of
the crime
to
the jury
in
its closing argument:
………………………………………………..
“All you have to find
is
that there was an attempt
Because that’s
what a corrupt endeavor is”
(Tr. 12/8/95 at 11)
The jury
could not find
that
any step to complete the crime
was taken
in
the Northern District of California
when
the criminal deeds
had already been committed
Venue
as
required
by
the Sixth Amendment
was lacking
The convictions
on
these counts
must be set aside
………………………………………………..
Waivers
Two issues
now raised
by
the defendants
were waived at trial
On the face
of
the indictments
the venue
of
the tax counts
was wrong:
the
Marshes
and
Spencers
had
been residents
of
the Eastern District of California,
but
they were being tried
in
the Northern District
The defendants
said not a word
about the venue
until they were convicted
They now contend
that the
government
might have proved
some act
in
the Northern District
that
would have related
to
the tax courts
and
justified the venue;
they could not know
till
the trial was over
The defendants
waited too long
They cannot sandbag
the government
after the verdict
is in
United States v. Powell,
498 F.2d 890, 891-92
(9th Cir. 1974)
——————————————————————
http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm00231.htm
——————————————————————
http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm00666.htm
——————————————————————
http://www.irs.gov/pub/irs-utl/tax_crimes_handbook.pdf
………………………………………………..
Phillip Marsh
earnestly urges
that
the exclusion
of
the evidence
of
his psychological state
was error
in
the light of our en banc decision
in
United States v. Morales,
108 F.3d 1031
(9th Cir. 1997),
——————————————————————
http://swansonmcnamara.com/wp-content/uploads/2012/04/Experts-I-Morales-article.pdf
——————————————————————
http://swansonmcnamara.com/wp-content/uploads/2012/04/Experts-II-article.pdf
_________________________________________________
which he characterizes as establishing a new constitutional rule that should be applied retroactively
Griffith v. Kentucky,
479 U.S. 314
(1987)
——————————————————————
https://supreme.justia.com/cases/federal/us/479/314/case.html
——————————————————————
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=479&invol=314
——————————————————————
http://www.oyez.org/cases/1980-1989/1986/1986_85_5221
——————————————————————
http://en.m.wikipedia.org/wiki/Griffith_v._Kentucky
_________________________________________________
Morales
did not announce
new constitutional doctrine
but
applied the Federal Rules of Evidence
Marsh cannot benefit
from the case retroactively
He waived his right
to
introduce the psychiatrist’s testimony
by
not seeking to introduce it
in
the second trial
We find no plain error
………………………………………………..
Other issues raised by the defendants
need not be considered
in view of our ruling
on
the principal counts
………………………………………………..
SUMMARY
………………………………………………..
The convictions
of
all six defendants
of
violation
of
18 U.S.C. § 371
——————————————————————
http://www.law.cornell.edu/uscode/text/18/371
_________________________________________________
are REVERSED
The convictions
of
the Marshes
and
Jill Spencer
of
endeavoring
to
obstruct the administration of the tax laws
are REVERSED
The convictions
of
the Marshes
and
the Spencers
and
Coltrane
of
mail fraud
are REVERSED
The convictions
of
the Marshes
and
the Spencers
of
failure to file
and to
tax evasion
and
the sentences
for
these offenses
are AFFIRMED
_____________________________________________
Lowell (Larry) H. Becraft, Jr.
—————————————————————–
http://fly.hiwaay.net/~becraft/deadissues.htm
_____________________________________________
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