Simkanin guilty of 29 counts of tax violations

Fort Worth Star-Telegram ^ | 1/8/2004 | Max Baker

[sinkspur]

Another one bites the dust.

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[spacewarp]

Sorry Sink. Usually, we have a level of agreement on some issues. This is not "Another one bites the dust." This is one in which the American people, and in particular, Simkanin got more rights taken away. This is an utter outrage that the defense of a man is that the laws that he's being charged with are a violation of the Constitution, and the judge prohibits and even instructs the jurors that the "constutionality" of the laws in question is not even a valid question. If the Appeals court can prove that it's not just a rubber stamp of the IRS and that the courts can't just make up laws as they go, this will be thrown out at first glance. It's an abomination of the justice system.

If the IRS wants to prove their case that there is a Constitutional grounds for their confiscatory tax practices, fine. Let them do it. The utter arrogance of the IRS is appalling. And you and every other American should be disgusted. "We make the laws, and we tell you how to respond to them and if you don't like it, we'll take your house and your business and throw you in jail. And we're above you, so we don't have to answer any of your questions." The first trial, the IRS agents were asked to provide anywhere in the code that he was required to pay the taxes. They refuesd to do so. They all flatly refused to testify. This time, they found a judge that was on their side, and they were able to shaft someone. If they have a case, then let them stand up in open court and defend it. If they can't, then they should be prosecuted for making these backroom deals to rip off people's rights.

They accuse Rush of "doctor shopping". Well, that's a minor problem (major problem for their prosecution, because they're also accusing him of illegally obtaining them from a pusher, so, why would he have any need to "doctor shop"). In this country, the major offense should not be "doctor shopping" but "JUDGE shopping." And those prosecutors that have so little faith in their cases that they would risk trying an innocent man by shopping for a friendly judge that will take away all of a man's defense by acting like a three year old sticking his fingers in his ears and shouting "I can't hear you", the prosecutors should be tried and convicted.

As I'm sure you can imagine, I'm a LITTLE miffed about this one. It's clearly a violation of his constitutional rights. If he broke the law, prove it. Don't prevent him from making a defense and then say "See, he didn't say anything we could hear, so we proved it." It's sick. And all of you who love freedom should be sick and should also be afraid.

Remember, keep your guns clean, because when they come for all of us who love liberty, it's going to be our only defense against tyrrany. And this, Sink, is nothing but tyrrnany.

[The Old Hoosier]

It is not the place of a jury to decide constitutionality. Not according to the constitution, anyway.

[Henrietta]

"The first trial, the IRS agents were asked to provide anywhere in the code that he was required to pay the taxes. They refuesd to do so. "

I so agree with your post. Kinda makes you wonder what the IRs is trying to hide, doesn't it? I mean, if it's so darned obvious, why aren't they producing the evidence and explaining it to all of us? No citizen defending himself would be able to do what the IRS does, and say, "This is the law, I say so, and I don't have to prove it. Just take my word for it."

[sopwith]

01-06-04
Federal Tyranny, Texas Style

Justice Held in Contempt
Simkanin Takes The Stand

(Updated Tuesday, 1 PM Central)

(Above Judge McBryde's head near the USDC courtroom ceiling):

REASON IS THE LIFE OF THE LAW
NAY THE COMMON LAW ITSELF IS NOTHING BUT REASON

Fort Worth -- Federal prosecutors and USDC Judge John McBryde continued in earnest yesterday afternoon to deny all reason and justice in their quest to control the trial and ensure the conviction of non-withholding employer Dick Simkanin.

Fortunately, Simkanin's attorney, Arch McColl, despite a clearly biased and hostile courtroom environment, made a noteworthy stand against the tyrannical acts of the judge and Assistant US Attorney. According to observers in the fully packed courtroom, the thinly veiled attempts by the government to deny justice to Simkanin were not lost on members of the jury. They were certainly not lost on the courtroom observers.

As one example of Judge McBryde's vision of due process, McColl (yesterday) filed five separate Motions to Dismiss, including one challenging the legal sufficiency of the charging indictment. As WTP has noted in pervious updates, Simkanin's indictment does not cite ANY specific US statute Simkanin is alleged to have violated, but merely specifies the general, "multi-purpose" Title 26 "penalty" statutes that are imposed IF one that is required to file (or withhold), fails to do so. At the bench, Judge McBryde openly admitted he had not read any of the Defense motions, but regardless, summarily dismissed all of them within seconds.

As to the government's case (which wrapped up Tuesday morning), Assistant US Attorney Jarvis, opened his prosecutorial drama by bringing in a number of Simkanin's former employees and accountants. These first witnesses were able to repeatedly reiterate their personal tales of how they "knew" (and warned) Simkanin that he was "breaking the law" by not withholding.

They further went into explaining why they severed their relationships with Simkanin rather then face legal troubles by questioning the law or the IRS. Although it was clear this initial barrage of government witnesses was intended to construct for the jury the illusory "fact" that Simkanin "broke the law," they, conveniently of course, could not be directly questioned about their actual knowledge of the law that they were speculating about because they were not legal experts.

Following these preliminary government witnesses, the DOJ brought out several of their IRS agents and tax experts. These witnesses, although personally and officially responsible for enforcing US tax law, uttered precious few words concerning the actual content of the law, and were again, conveniently protected by Judge McBryde from any substantive cross examination that might entail any detailed discussion of Simkanin's true legal obligations under the law.

Below are notes that were transcribed directly during the testimony of the IRS witness Joe Cooper. It is Cooper who, on behalf of the IRS, formally denied Simkanin's claims for tax refunds, thereby establishing the legal basis for twelve of the 35 tax crimes Simkanin is charged with. (Note: Cooper was the IRS witness in the first trial that recanted his testimony, changing his assertion as to which specific legal definition of the term "employee" applied to Simkanin's alleged crimes) Notice the unwarranted behavior of Judge McBryde as Arch McColl attempts to solicit from the witness his factual and legal basis for denying Simkanin's refunds on cross-examination:

(Note: McColl questions in green, IRS's Cooper testimony in yellow)

Testimony of Joe Cooper:

He conducts examinations and claims for refund - (Government exhibit 91 entered, claim for refund that Simkanin submitted.) He admits reviewing the claims and what he put in the denial letter. He reached the (legal) conclusion that the refund had no merit and the claim would be denied. He informed Simkanin of such on the phone. He also told Simkanin the courts had consistently denied arguments with his position. He looked at counts 1 through 12 showing the total wages indicated and found them to be correct from his calculations.

McColl's cross-examination of Cooper:

If Arrow Custom Plastics corporate income was .McColl is cut off before he can ask the question - Judge denies him to ask the question before he can ask it. Defense asks judge: can he even ask the question and judge says no. When you made your evaluation did you base it on title 26? Did you make it according to the letter he provided? Judge stops him and calls them up to the bench for a scolding.

Did you have any supreme court cases you could have used.Judge states it is beyond the scope and tells him to move to something else. Presuming that Simkanin is correct, is it true.Judge stops him and states it is beyond the scope. Do you remember what year your conversation occurred in? - (answers 2002). In order to reject this claim did you have to do a calculation of the gross income that was involved in the income, such as excludable income? Judge stops him and tells him to get onto something relevant to the subject.

Is it true that there are certain items within the class of income that is within the scope? Judge stops him again and states that the subject is wages withheld and not gross income. Did you have any conversation with Simkanin about him not filing any returns? (answer) Yes - and he said he didn't believe he had to withhold from employees. Further question from defense about employees not being subject to withholding Judge stops him and states it is beyond the scope. Do you know what courts have continuously rejected.Judge stops him and states it is beyond the scope. Within the scope of your expertise do you deal with medicare or .Judge states it is beyond the scope. Did you say that you had researched the law? Yes, What law did you research - I don't recall.

Did you say that you researched court cases? Judge stops him again. Did you look at any regulations, Yes - 3401. Did you explain that to Simkanin? Are their guidelines that you act under? Yes, Do the guidelines call for you to give direct answers to people making claims? Yes, Judge concludes his questioning if he dares to ask any other questions that are beyond the scope. Did you think some thought had gone into Sim. letter sighting 20 regulations and numorous court cases? Yes, Can you see how a person might view.Judge stops him stating it is argumentative. Did you tell him he could appeal? Yes.What is the normal process he would have.Judge stops him.


The balance of the afternoon followed similarly to the testimony cited above, with the government attempting to paint Simkanin as a criminal because he cashed checks in excess of $10,000 (while running a $5,000,000 a year business), because he changed the corporate signature card at his bank, and because he wrote his Congressman to urge passage of proposed legislation by Rep. Ron Paul (TX) that would have eliminated the withholding "requirement" (implying that this letter established Simkanin knew what the current law requires with respect to withholding).

As further evidence of the bias against Simkanin, courtroom observers noted several instances where Judge McBryde sustained objections, even BEFORE they were made by the US Attorney. Testimony lasted until after 6 PM Monday evening when the court was recessed.

On Tuesday morning, Jarvis recalled two of Simkanin's former associates to reiterate portions of their testimony.

In a rare moment of acknowledging the rights of the defendant, McBryde quickly admonished the AUSA for his additional grilling of these witnesses as Javis pushed for further condemnations and opinions regarding Simkanin and his decisions to stop withholding and filing. Shortly thereafter, the defense rested.

Before 10 AM, Simkanin had taken the stand as the first defense witness and was being questioned by his attorney Arch McColl. An initial report from a courtroom observer indicated that Judge McBryde was continuing his role as "executive producer" of the trial by aggressively limiting Simkanin's testimony to simple "yes or no" responses to his own lawyer's questions.

A number of other defense witnesses were preparing to testify later today. It is unknown if the Judge will allow any witnesses aside from Simkanin. More news as it is available..


Other Trial Tidbits:

Until McColl strenuously objected yesterday just before the start of the trial, Dick Simkanin, (who has never been convicted of any crime) was still bound in prison leg restraints as he sat at the Defendant's table.

A number of courtroom observers reported being somewhat disturbed that the US Marshals routinely physically lock and "dead-bolt" the single, main entrance into the courtroom while the court is in session. Several noted the obvious violations of fire regulations and the clear risks should an emergency occur. The Marshals apparently do this on at the direction of Judge McBryde who abhors the public entering or leaving the public courtroom while court is in session.

Numerous observers noted that Juror #4 (female, apparently in her early twenties) spent much of yesterday virtually asleep with her head slumped back. Apparently, neither the judge nor DOJ were concerned.

Additional details regarding the blocking of parked cars directly across from the federal courthouse that took effect mid-morning yesterday have been determined. The parking ban was carried out by local Fort Worth police. The local federal "Homeland Security" officer stationed outside the courthouse told WTP sidewalk protesters that the parking ban was, in fact, instigated specifically as result of the recent increase to the "orange" terrorist threat level set by the Office of Homeland Security. The officer could not explain why the parking ban was not instituted until yesterday morning (Monday, January 5th) considering the terrorist level was officially raised to "orange" the weekend prior to Christmas.

The Fort Worth Star-Telegram published another lead story on Tuesday covering the Simkanin trial. Even the reporter noted the apparent bias against Simkanin as McColl attempted to discuss the legal definitions of the key statutory terms "income" and "employee". The reporter noted that when McColl attempted to ask the IRS legal expert if Social Security taxes (that Simkanin is charged with) were mandatory under the law or not, Judge McByde stopped McColl and sternly warned, "We're not going to play this game."

Bob Schulz was the live guest on the leading 50,000 watt KLIF/AM 570 Dallas talk radio show during the peak "drive time" this morning. One caller to the show following Schulz's interview admitted to not filing federal tax returns since 1976.

[31R1O]

Couldn't people file a class action lawsuit against the IRS.

[sinkspur]

If the IRS wants to prove their case that there is a Constitutional grounds for their confiscatory tax practices, fine. Let them do it.

They've done it. Over and over and over and the Supreme Court has agreed that witholding, and the income tax, is constitutional.

That's all the tax protesters have, is to go into court, kick up dust about the "constitutionality of the tax code" (when it is a settled issue). Once that's off the table, jurors realize that these "protesters" are scammers, leeches on society, and are basically screwin' you and me by not paying the same taxes that you and I owe AND PAY!

If Schulz and Simkanin (once he gets out of prison) want to change the tax laws, I'll join them and you. National Retail Sales Tax is THE way to go.

But you'll get no sympathy from me when one of these snakes (who, BTW, exposed his own employees to legal liability) tries to hide behind the Constitution.

He's spitting in your face, and you don't even realize it.

[Henrietta]

"It is not the place of a jury to decide constitutionality. Not according to the constitution, anyway."

It is emphatically the place of the jury both to judge the law and the facts. The Supreme Court itself has said so.

"The judge cannot direct a verdict it is true, and the jury has the power to bring in a verdict in the teeth of both law and facts." Mr. Justice Holmes, for the majority in Horning v. District of Columbia, 254 U.S. 135, 138 (1920).

And you're quite wrong on the Constitutional point as well. The Constitution does not restrict citizens, it restricts government. And it says that people have a right to trial by jury, which implicates a right for the jury to decide facts and law. You seem to be under the very mistaken impression that if the Constitution does not allow it, it is prohibited. This has never been an accepted construction of our constitution.

[verity]

Another one fool bites the dust.

[Gunslingr3]

It is not the place of a jury to decide constitutionality. Not according to the constitution, anyway.

The jury system is intended as a brake upon the excesses of government. It is a part of keeping 'we the people' the fourth branch of government.

"I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution." --Thomas Jefferson

"The jury has a right to judge both the law as well as the fact in controversy." --Chief Justice John Jay, 1st Chief Justice, US supreme Court (Georgia vs. Brailsford, 1794:4)

"It would be an absurdity for jurors to be required to accept the judge's view of the law, against their own opinion, judgement, and conscience." --John Adams

"It is not only [the juror's] right, but his duty, in that case, to find the verdict according to his own best understanding, judgement, and conscience, though in direct opposition to the direction of the court." --John Adams

Why do you think they want us to forget this...

[sinkspur]

And it says that people have a right to trial by jury, which implicates a right for the jury to decide facts and law.

So, in each and every trial, each and every jury has the right to decide the "constitutionality" of every law used to indict the accused?

LOL!!!!

[Dead Corpse]

LOL!!!!

Keep laughing. In fact, it could be said that our legal system is in such a mess because jurors have been mislead as to their power to judge the law BY the judiciary.

Read some Spooner. You just may learn something...

[sinkspur]

Why do you think they want us to forget this...

You better check Marbury vs. Madison.

The critical importance of Marbury is the assumption of several powers by the Supreme Court. One was the authority to declare acts of Congress, and by implication acts of the president, unconstitutional if they exceeded the powers granted by the Constitution. But even more important, the Court became the arbiter of the Constitution, the final authority on what the document meant. As such, the Supreme Court became in fact as well as in theory an equal partner in government, and it has played that role ever since.

Juries don't get to decide the constitutionality of laws.

[bvw]

And therefore William Penn is still locked away in the Tower of London, and Pennsylvania is not, Philadelphia is not, the Liberty Bell is still brass cannons, there is not Carpenter's Hall, there is no Declaration of Independence, there is no Constitution.

What then are you talking about?

For William Penn is convicted of inciting riot, and that, sir, is the LAW!

[sinkspur]

Read some Spooner. You just may learn something...

Read Marbury vs. Madison.

YOU might learn something....

[Gunslingr3]

Juries don't get to decide the constitutionality of laws.

By all means, explain the contradiction between that analysis of Marbury v Madison and John Jay's statement.

[Dead Corpse]

Juries don't get to decide the constitutionality of laws.

Your qoute says nothing about juries. Get a grip. Just because the USSC is the "final" arbiter when working a suit through the court system in no way prohibits a jury from deciding the fate of a law as well.

[sinkspur]

By all means, explain the contradiction between that analysis of Marbury v Madison and John Jay's statement.

Marbury vs. Madison prevails over a private opinion.