Sentencing for Doreen Hendrickson

[notorial dissent]

To fall back on the 70's/80's bafflegab that was in vogue about the time Mrs Prattlin' Pete got started on her life of crime, I would have to say that she is the enabler of the pair, but hardly the mastermind, that dog help us has to fall to the Pompous Pretender. I just can't see her putting any of this together, but I can see her paving the way for someone to go on to a spectacular fail, as has happened. I have come to the considered conclusion that she earnestly believes everything he told her. She isn't smart enough to figure it out on her own, and she would seem to have NO sense of logical discrimination as far as what she is doing.

[.]

The obscenely delicious and ridiculous transcript snippet Wes provided:

THE COURT: And now in conjunction with this motion that you have filed with the Court, have you ever studied law?

MRS. HENDRICKSON: Not really studied law, no.

THE COURT: What is your familiarity with the law as lawyers or Judges might know the law?

MRS. HENDRICKSON: I read a lot of court cases.

THE COURT: You read a lot of cases? What kind of cases?

MRS. HENDRICKSON: I watch Judge Judy.

THE COURT: You watch who?

MRS. HENDRICKSON: Judge Judy.

THE COURT: Judge Judy? Oh my God!

Is the single greatest transcript chunk EVER (or at least in a dozen years) posted on Q. Bar none.

And the insanely idiotic story gets steadily more surreal if you read the silliness all the way to the end. The woman is hopeless.

[AndyK]

What's the over/under on:

Her quoted speech was never presented to the court.

Instead, it was something composed by her husband. and posted as if it were her own words.

[notorial dissent]

I would bet that Doreen stood mute during the entire exchange, and that that entire long monologue was entirely written and produced by himself Preposterous Pete. For one thing, I don't think Doreen is that florid or verbose, and it reads just like all of Pete's other sanctimonious bleatings. I think that is pure Pete. I also don't think she could have memorized that whole long screed even if she'd been of a mind to. Besides, Pete's always been all about re-wrtiting history, and this seems like a perfectly revisionist effort on his part.

[Famspear]

Yesterday, Tuesday, April 21, 2015, an Amended Motion for Modification of Release Conditions was filed by Mark Cedrone, attorney for Doreen Hendrickson (docket entry 130).

The defendant is asking that the Court modify its release order “by rescinding the condition that Mrs. Hendrickson file amended tax returns as directed by the Court’s Order.”

The accompanying brief states (in part):

The issue presented in the instant Motion is whether the condition imposed on Doreen Hendrickson's continued release pending the execution of her sentence - that she file 2002 and 2003 tax returns in a manner consistent with the Court's sentencing Order - is violative of Mrs. Hendrickson's Fifth Amendment right against self-incrimination and whether the Order is otherwise valid under the statutory authority governing post-sentence release; 18 U.S.C. §§ 3142 and 3143. Mrs. Hendrickson argues that the condition of release in question is unlawful, that the Court's Order should be modified accordingly by eliminating it, and that she should be permitted to surrender to the authority of the BOP within sixty (60) days of the date of her sentence.

[ . . .]

The conditions of continued release imposed by the Court constitute a blatant violation of Mrs. Hendrickson’s Fifth Amendment right against self-incrimination. Additionally, these conditions of continued release are premised on the erroneous assumption that the theory outlined/detailed in Cracking the Code suggests that only “Federal, state or local government workers [are subject to the Federal income tax]”. These conditions of release also implicate Mrs. Hendrickson’s First Amendment Speech Rights. However, as explained below, the foul to Mrs. Hendrickson’s Fifth Amendment rights is so palpable that it is not necessary to discuss in detail the other improper implications of these conditions.

[ . . ]

Compelling Mrs. Hendrickson to file amended tax returns, which contradict her repeatedly sworn position concerning the taxable nature of the items to be reported as income, would essentially constitute a compelled attestation that her alleged historical failure to file returns as directed, or to file returns as she did, was willful. This would also constitute a forced agreement as to the lawfulness of Judge Edmunds’s Orders, a position with which Mrs. Hendrickson takes umbrage.

Additionally, compelling Mrs. Hendrickson to file any amended tax returns for the years 2002 and 2003, without any qualification or caveat (such as were included on both previous occasions when she did in fact submit amended tax returns), would constitute a compelled admission that her originally filed 2002 and 2003 tax returns are incorrect, and even that they were false and fraudulent.

Further, both the government and the Court have suggested that Mrs. Hendrickson remains in violation of Judge Edmunds’s Order, which serves as the basis for Mrs. Hendrickson’s contempt.

To the extent that Mrs. Hendrickson's original 2002 and 2003 income tax returns are based upon positions articulated in Cracking the Code, any compelled attestation of belief as to the incorrectness of those positions could arguably be used against Mrs. Hendrickson in civil proceedings, a prosecution for additional crimes, or at a retrial should Mrs. Hendrickson succeed on appeal. Thus, the special conditions reducing Mrs. Hendrickson's period in which to self-surrender and coercing her production of the ordered "amended returns" clearly violate Mrs. Hendrickson’s Fifth Amendment rights and the Order should be modified to eliminate these conditions of release.

[ . . .]

So, a court order that compels a defendant to create and sign a document which they must swear is true, correct and complete under penalty of perjury and that could be used as evidence against them at trial, violates the Fifth Amendment. This is precisely the import of the order issued by the Court in this case. [ . . ]

(bracketed material in the original).

[Famspear]

Interesting.

If Doreen had been prosecuted for willful failure to timely file valid federal income tax returns for the years in question (and we recall that the original "returns" in question apparently were not legally valid tax returns), she could not have successfully asserted, as a defense, the Fifth Amendment privilege against being compelled to be a witness against herself. See Sullivan.

Yet, she is now asserting that being forced to file "amended" returns for those same years (returns that would contradict her husband's Cracking the Code theory) would violate the same privilege, even though the "amended" returns, if filed according to what we know the law is, would actually be the first and only valid returns filed by her for the years in question.

EDIT: The citation to Sullivan is to the U.S. Supreme Court decision in United States v. Sullivan, 274 U.S. 259 (1927).

See:

http://scholar.google.ca/scholar_case?c ... s_sdt=3,44

[Famspear]

.....Compelling Mrs. Hendrickson to file amended tax returns, which contradict her repeatedly sworn position concerning the taxable nature of the items to be reported as income, would essentially constitute a compelled attestation that her alleged historical failure to file returns as directed, or to file returns as she did, was willful....

I do not see that this is the case.

Willfulness in the context of Federal tax crimes generally connotes the voluntary, intentional violation of a known legal duty -- a duty of which the defendant was aware AT THE TIME OF THE COMMISSION OF THE ALLEGED OFFENSE.

The fact that a person files an amended return in these circumstances -- years after having filed the original "returns" -- may say something about the defendant's awareness of the law at the time the amended returns are filed, but does not necessarily say something about awareness at the time the original returns were filed.

The tax years in question were 2002 and 2003. If the "returns" in question (albeit not legally valid returns) were filed more than six years ago, then the Fifth Amendment privilege against self-incrimination might not apply anyway, at least with respect to the government trying to prosecute her for filing false or fraudulent returns for those years.

However, the defendant's arguments are at least interesting, and I haven't the time right now to address every possible implication raised in the defendant's brief.

.....This would also constitute a forced agreement as to the lawfulness of Judge Edmunds’s Orders, a position with which Mrs. Hendrickson takes umbrage....

I also do not see this as being the case.

Additionally, compelling Mrs. Hendrickson to file any amended tax returns for the years 2002 and 2003, without any qualification or caveat (such as were included on both previous occasions when she did in fact submit amended tax returns), would constitute a compelled admission that her originally filed 2002 and 2003 tax returns are incorrect, and even that they were false and fraudulent.....

I'm afraid I have to disagree with this as well.

[Famspear]

Let's look at just the tax year 2003.

The provisions of the statute of limitations are found at Internal Revenue Code section 6531.

For the offense of willfully failing to make a tax return at the time required by law, the statutory period is six years. For a 2003 federal income tax return, for example, the statute would begin to run on or about April 15, 2004 (or October 15, 2004, I guess, if the taxpayer had obtained an extension) and would run until April 15, 2010 or October 15, 2010.

See section 6531(4).

The fact that Doreen may have filed a prior "amended" return for 2003 which, because she modified the jurat, also did not constitute a legally valid return, should not affect the operation of the section 6531 period for tax year 2003 failure to file.

Filing an amended 2003 return right now -- one that does comply with the law, and with the Court order, by reporting her income as gross income (even if that income was not realized in an activity connected to the exercise of a "federal privilege", to paraphrase Peter Hendrickson's writings) -- would not necessarily say anything about Doreen's state of mind (in terms of awareness of the law) back when she filed the fraudulent 2003 "return" (the original return on which she apparently used her husband's Cracking the Code evasion scam).

[Famspear]

....Filing an amended 2003 return right now -- one that does comply with the law, and with the Court order, by reporting her income as gross income (even if that income was not realized in an activity connected to the exercise of a "federal privilege", to paraphrase Peter Hendrickson's writings) -- would not necessarily say anything about Doreen's state of mind (in terms of awareness of the law) back when she filed the fraudulent 2003 "return" (the original return on which she apparently used her husband's Cracking the Code evasion scam).

For tax years 2010 through 2013, the filing of an amended 2003 return right now (one that does comply with the Court order by reporting in a way that contradicts the Cracking the Code "non-method-method") also does not necessarily say anything about Doreen's state of mind (in terms of awareness) when she filed her 2010 through 2013 returns (or for that matter her 2014 return, assuming it has already been filed).

However, let's take out the word "necessarily."

The test of relevancy is not whether one thing necessarily proves some other thing. The test of relevancy is whether the introduction of the evidence has "any tendency to make a fact more or less probable than it would be without the evidence", and the fact is "of consequence in determining the action." See Rule 401, Federal Rules of Evidence.

So, even though an action taken today to file a tax return would not necessarily say something about a state of mind in the past at the various times at which various tax returns for prior years were filed, the action taken today might still be legally relevant to state of mind at those earlier times. If an individual filed materially false federal income tax returns for tax years 2010 or subsequent years (the six year statute of limitations for those years having not yet expired), I suppose that an action taken today by that individual could at least be considered legally relevant to determining the mens rea element of willfulness at the various times of the filings of those earlier returns.

[Famspear]

We recall, also, that in some tax protester cases the courts have noted that a defendant filed federal income tax returns for many years in compliance with the law, and then, after having attended such things as tax protester seminars, stopped reporting income properly -- with tax protester theories having been used at the basis for the change in behavior. In those cases, the taxpayer's earlier actions in compliance with the tax laws were cited as evidence -- obviously legally relevant evidence -- of the taxpayer's state of mind (in terms of awareness of the law and therefore of willfulness) at the later times when the fraudulent returns were filed.

[Famspear]

Interestingly, unless I missed it, I believe that Mark Cedrone did not mention Sullivan at all in the brief he filed for Doreen Hendrickson.

Let us assume for the sake of argument that Doreen stubbornly continues to file false federal income tax returns using the Cracking the Code (CtC) evasion scam for many years to come. If she were to be prosecuted for willful failure to timely file a VALID federal income tax return for a year for which she filed a CtC return, would the same argument she is using in Cedrone's brief "apply" equally "well" (I'm using the word "well" in a particular way here)? Would her argument be that the prosecution could not be maintained, because forcing her to file a tax return that contradicted the "Cracking the Code method" would violate her Fifth Amendment privilege against being compelled to be a witness against herself? Would her argument thus be that she could NEVER EVER be prosecuted for willful failure to timely file a tax return that shows her "non-federally privileged income" as being included in gross income (i.e., as being taxable)?

Would she have to argue that where a taxpayer absolutely, stubbornly refuses to accept the "government's theory" about what the tax law is, such an individual could never be prosecuted for failure to file, and that the holding in Sullivan should accordingly be limited -- or even overruled?

[NYGman]

I am just afraid that Pete will use this as a "Win" if granted. I am almost certain that he would say that because the court ruled in Doreen's fovor on this motion, this means Doreen doesn't have to file amended returns, because the court is really rulling that the returns that were filed were legally sufficient and supported under the law and now the IRS has accepted her CtC returns, they will now be forced to accept yours...

[wserra]

Hendrickson has simply outdone himself. There is no other way to put it. This is just grandiosity above and beyond the call of narcissism.

Unlike what ever has happened to anyone ever before or since in the history of the United States . . . an arrogant government not accustomed to being told “No!” even in the face of its violation of the Bill of Rights . . . if this can be done to Doreen, it can be done to you and your kids

Patriots of all stripes and IQs: it is the most important thing in the universe right now that you unite behind George and Martha Hendrickson!

[Gregg]

This whole "making her say X is to make her say something she thinks is illegal" is just bunk. She is being compelled to recognize and act upon the fact that the law is one thing, and what she thinks it should be is another, nothing more and nothing less.

The rest is just trying to talk until the other side wears out, and down that road anarchy is.

[notorial dissent]

OK, as I understand it, that work of fantasy was produced by Cedrone, so is he now letting Prattlin' Pete put words in his mouth, or has he finally stepped over the line himself?

And am I misremembering that Pete and Doreen were CONVICTED of failing to file and thereafter ordered to submit correct and legal returns as part of that conviction? So therefore doesn't that pretty well negate most of the excuses in the instant work of fantasy?

I just have a problem seeing Cedrone issuing something like, but maybe I'm missing something here.

My personal feeling is that the judge should tell Doreen that based on that recommendation she can report early, WILL fill out the returns according to law and judicial direction, and have her sentence extended to the maximum.

[AndyK]

Am I missing something, or are her current whines exactly the same as those which several courts and juries already laughed at?

Is she (as the sock puppet for him) just slinging the same pasta in the hope that perhaps some might stick this time?

[wserra]

Am I missing something, or are her current whines exactly the same as those which several courts and juries already laughed at?

With all due respect, guys, I think Gregg, nd and Andy have in fact missed something. Famspear has not, but I would put the point somewhat differently than he did.

Cedrone's point is not that requiring, under penalties of law, a tax return that complies with the law somehow violates due process, or the First or Fifth Amendments, or whatever benighted nonsense the usual suspects wish to bestow on it. "I don't believe that what you say is the law, and therefore penalizing me for not complying with what you say violates all my rights (including not quartering troops in my home) and you can't make me do it. Nyah, nyah" is nonsense. But Cedrone's point is interesting: requiring the filing of an amended return, under oath and under these circumstances, is in essence admitting that one willfully filed a false return. Had Doreen been prosecuted for evasion for those years, she would have no argument because, win or lose, jeopardy would have attached. However, since she has not been, she still has a Fifth Amendment privilege (issues of statute of limitations aside).

This is akin to a curious little doctrine that was one of my favorite quirks when I did this stuff, something called "act of production immunity". In certain rare circumstances - much rarer than I acknowledged when I was asserting it on behalf of clients - the very act of producing something is incriminating. In order to compel such a production, the govt must therefore arrange for immunity to avoid the self-incrimination. As I understand it, Cedrone is saying something similar about preparing an amended return - merely preparing it, and certifying it accurate, is a step towards incrimination if charged with a crime based on the original return.

For a couple of reasons that I don't have time to go into, I think he's wrong, and will likely lose the point. I think he in private would likely agree. But he's not obviously wrong, and courts have as far as I know not previously considered this aspect.

[ArthurWankspittle]

But Cedrone's point is interesting: requiring the filing of an amended return, under oath and under these circumstances, is in essence admitting that one willfully filed a false return. Had Doreen been prosecuted for evasion for those years, she would have no argument because, win or lose, jeopardy would have attached. However, since she has not been, she still has a Fifth Amendment privilege (issues of statute of limitations aside).

I'm trying to get my head round this and may be missing part of the law. Why is an amended return admission that the previous return was wilfully filed? Surely the judge is within his rights to point out that the original returns were invalid and he now requires valid returns to be made. Non compliance would put Doreen at risk of contempt. The wilfulness of the filing is moot. It's not a valid tax return, but it doesn't matter (at this point, and possibly in respect of SOL) about the intent of the filer or their state of mind at the time, the judge wants a valid return filing; without which the whole system is fatally flawed. (Unless the SOL prevents this from happening, but that argument hasn't been raised by the defence, has it?)

[Famspear]

....Cedrone's point is interesting: requiring the filing of an amended return, under oath and under these circumstances, is in essence admitting that one willfully filed a false return. Had Doreen been prosecuted for evasion for those years, she would have no argument because, win or lose, jeopardy would have attached. However, since she has not been, she still has a Fifth Amendment privilege (issues of statute of limitations aside)....

Here's a proposed, theoretical argument on behalf of Doreen:

"I (Doreen Hendrickson) could still be indicted in the year 2015 for willful failure to timely file valid 2002 and 2003 tax returns. Filing amended tax returns for 2002 and 2003 today, in the year 2015, might be construed by a prosecutor (or even by a jury) as at least some evidence that I was aware -- way back on April 15, 2003 and 2004, when the 2002 and 2003 returns were due -- of my duty to file returns that included all my income as the IRS defines income, and that my husband's Cracking the Code theory was and is wrong. Even though I would be successful in asserting the statute of limitations, compelling me to file my 2002 and 2003 amended returns today, in 2015, would increase the likelihood or danger that I could be accused, charged or prosecuted. And that's all that's required for my "statements" to be considered "incriminating" for purposes of the Fifth Amendment. The fact that I can't be convicted does not change the point that my statements increase the danger that I would be accused, charged or prosecuted."

Thoughts?

Further, her argument could apply with more force for tax years for which the statute of limitations has not yet expired, right?

And, maybe the government could come back with some sort of argument that the danger of being accused, charged or prosecuted for those old years (even the ones for which the statute has not yet expired) is so attenuated at this point that the Fifth Amendment privilege could not apply. Etc., etc. .....

What would really get her upset, I suppose, is for the government to come back with a grant of immunity for all those prior years.

This is akin to a curious little doctrine that was one of my favorite quirks when I did this stuff, something called "act of production immunity".

If I understand correctly, the Act of Production Doctrine applies to situations where the very act of producing the document has a testimonial aspect, in terms of either (1) existence of the document, or (2) authenticity of the document, or (3) custody of the document.

So, I take it that her argument could be that the very acts of signing the amended returns (under penalty of perjury, no less) and delivering them to the government would be deemed to satisfy at least items 1 and 2: A representation that the amended returns exist, as well as a representation that the documents are authentic (in the sense that she represents that they are indeed her signed tax returns).

ArthurWankspittle wrote:

Why is an amended return admission that the previous return was wilfully filed?

Or, as I understand the question should be: Why is the filing of an amended return today evidence of willfulness back on the date on which the original return (which was not a valid return) was required to be filed?

I have a problem with that concept, too. And I guess Doreen's response would be that ANY statement by her (including an act of production that has a testimonial aspect for purposes of the Fifth Amendment) that increases the danger that she will be accused, charged or prosecuted could be considered self-incriminating.

I'm not saying that I'm confident that it's a winning argument.

[Famspear]

Wes wrote:

But Cedrone's point is interesting: requiring the filing of an amended return, under oath and under these circumstances, is in essence admitting that one willfully filed a false return.

The determination of whether there is a risk of incrimination is made by the court; the witness’ assertion does not by itself establish that there is a risk of incrimination. A danger of “imaginary and unsubstantial character” will not suffice. See generally Ohio v. Reiner, 532 U.S. 17 (2001) (per curiam), citing Hoffman v. United States, 341 U. S. 479, 486 (1951) and Mason v. United States, 244 U.S. 362, 366 (1917).

I guess the government's response could be that too much time has passed between the date of the commission of the offense of willful failure to timely file a VALID 2003 tax return (probably October 15, 2004 at the latest) and today's date for the act of filing an amended 2003 return today to provide a risk that is not "imaginary and unsubstantial" in character. The prosecution might argue that the defendant's state of mind today is not sufficiently probative of her state of mind over ten years ago. Doreen could theoretically argue that in October 2004 she didn't know the law and that she didn't come to awareness of the law until just today (obviously, this is not a position that this stubborn woman is ever likely to take, but what the heck....).