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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.