Doreen Trial Set for August 20, 2013

[AndyK]

Proposal:

The government drops the criminal contempt case and accepts the returns as valid.

The government issues a $5,000 penalty for each year at issue and then indicts Doreen for a fraudulent filing.

Doreen will lose a lot more money and will spend a lot more time in prison.

[notorial dissent]

Quite frankly, I don't see this as anything but a lose lose proposition for Doreen unless she fires her husband as an attorney, and quickly acquires a backbone and some common sense, and firing him as a husband not be a bad start as well, but otherwise, I don't really see any of that happening and they are going to chew her up

[LPC]

A question for the tax law and legal types, does signing that jurat on the tax form actually constitute "testimony", rather than a certification that the information has been filed and handled according to the law and the instructions given?

Kind of an interesting question.

I think that, based on the way the word "testimony" is used by lawyers (and judges), something is "testimony" only when it is evidence in the relevant case. So, testimony by a witness in one case is nothing but hearsay (and not "testimony") in another case unless it falls within one of the exceptions to the hearsay rule. If it falls within a hearsay exception, and is admitted into evidence, then it becomes testimony in the second case.

So, a tax return signed under penalties of perjury might be considered a form of "testimony" as far as the IRS is concerned, but it's not "testimony" before the Tax Court or the District Court of eastern Michigan.

Of course, the issue is not whether or not the returns Doreen filed are "testimony," but whether they are true and accurate returns, which they are not. Perjured testimony is still testimony, even though false.

[Famspear]

The U.S. Supreme Court has indicated that the information on a federal income tax return is considered to be the "testimony" of a "witness" for the limited purpose of the analysis of the taxpayer's Fifth Amendment privilege against being compelled to be a witness against himself:

The information revealed in the preparation and filing of an income tax return is, for purposes of Fifth Amendment analysis, the testimony of a "witness," as that term is used herein. Since Garner [defendant Roy Garner] disclosed information on his returns instead of objecting, his Fifth Amendment claim would be defeated by an application of the general requirement that witnesses must claim the privilege. Garner, however, resists the application of that requirement, arguing that incriminating disclosures made in lieu of objection are "compelled" in the tax-return context. He relies specifically on three situations in which incriminatory disclosures have been considered compelled despite a failure to claim the privilege. But in each of these narrowly defined situations, some factor not present here made inappropriate the general rule that the privilege must be claimed.

[ . . . ]

In summary, we conclude that since Garner made disclosures [on his tax returns] instead of claiming the privilege on his tax returns, his disclosures were not compelled incriminations. He therefore was foreclosed from invoking the privilege when such information was later introduced as evidence against him in a criminal prosecution.

--from Garner v. United States, 424 U.S. 648, 656 & 665 (1976) (footnotes omitted).

Peter Hendrickson, however, is all wet when he claims that forcing him to report his non-federally privileged earnings as income is somehow legally wrong.

And of course, Doreen is in the same boat with Pete.

[Famspear]

Here is the relevant portion of the jurat on the 2012 Form 1040:

Under penalties of perjury, I declare that I have examined this return and accompanying schedules and statements, and to the best of my knowledge and belief, they are true, correct, and complete.

The word "belief" as used in the jurat does not relate to Blowhard Hendrickson's idiosyncratic, subjective belief (no matter how firmly and "actually" he holds that belief) that compensation for services rendered in an activity unconnected to the exercise of a federal privilege is not income under the Internal Revenue Code.

Rather, the term "belief" relates here (in relevant part) to the Blowhardmeister's awareness of the law. He is aware that under the Code, compensation for services rendered in an activity unconnected to the exercises of a federal privilege is income -- even though he refuses to accept that this is the law. Indeed, he could not have written his "book", Cracking the Code, without being aware of what the law actually is.

To paraphrase what I have written before:

Disagreement with the taxing authority's interpretation of the law does not negate awareness of the existence of the taxing authority's interpretation. Indeed, evidence of disagreement with the taxing authority's interpretation is strong evidence of awareness of that interpretation.

And where the taxing authority's interpretation of the law happens to be correct (which it is in this case), Hendrickson's awareness of that interpretation is strong evidence of his willfulness -- evidence of his voluntary, intentional violation of a KNOWN legal duty -- a legal duty of which he is AWARE.

Hendrickson's stubborn, repetitive refusal to believe that a legal duty exists after he has been informed that such a legal duty exists is really nothing much more than his refusal to agree that the legal duty exists. His shabby pretext of "actual belief" is nothing more than a disagreement with the law.

He needs to go back and read the Cheek decision -- again and again. So does Doreen.

Forcing Doreen to sign a return -- with the aforementioned jurat -- that shows her non-federally privileged compensation to be income does not constitute forcing her to sign a statement she does not "believe" -- not in the sense that the term "belief" is used in the jurat.

[AndyK]

Just out of curiousity; will this be a jury trial or is she totally toast already?

If it's a jury trial, she might have a prayer -- MIGHT.

[Burnaby49]

Just out of curiousity; will this be a jury trial or is she totally toast already?

If it's a jury trial, she might have a prayer -- MIGHT.

I would assume that if, by some bizzare fluke of jury sympathy or ignorance, she won a jury trial it would just go to appeal. I can't see any appeal court agreeing with this nonsense.

[wserra]

I would assume that if, by some bizzare fluke of jury sympathy or ignorance, she won a jury trial it would just go to appeal. I can't see any appeal court agreeing with this nonsense.

The U.S. has something called "double jeopardy". No appeals from acquittals.

And yes, it would be a jury trial. God bless 'em.

[jcolvin2]

And yes, it would be a jury trial. God bless 'em.

Are we sure? Doreen was charged under 18 USC sec 401(3). I'm not sure I'm reading section 18 USC sec 402 correctly, but it seems to provide for a maximum sentence of 6 months in any criminal contempt case.

Section 3691 generally provides for jury trials in contempt cases. However, the provision is specifically inapplicable to the disobedience of any order entered in a suit brought by the US:

This section shall not apply to contemps comitted in the presence of a court, or so near thereto as to obstruct the administration of justice, nor to contempts committed in disobedience of any lawful writs, process, order, rule, decree, or command entered in any suit or action, brought or prosecuted in the name of, or on behalf of, the United States.

The Supreme Court has generally excluded "petty offenses" (those carrying sentences of less than 6 months) from the category of offenses to which the Constitutional guarantee applies. Lewis v United States, 518 U.S. 332 (1996)

[Burnaby49]

I would assume that if, by some bizzare fluke of jury sympathy or ignorance, she won a jury trial it would just go to appeal. I can't see any appeal court agreeing with this nonsense.

The U.S. has something called "double jeopardy". No appeals from acquittals.

And yes, it would be a jury trial. God bless 'em.

My mistake, I was thinking of the Canadian legal system. We have double jeopardy too but with one very significant difference from how it is apparently applied in the United States. As Wikipedia states:

The Canadian Charter of Rights and Freedoms includes provisions such as section 11(h) prohibiting double jeopardy. However, this prohibition applies only after an accused person has been "finally" convicted or acquitted. Canadian law allows the prosecution to appeal from an acquittal. If the acquittal is thrown out, the new trial is not considered to be double jeopardy because the first trial and its judgment would have been annulled. In rare circumstances, a court of appeal might also substitute a conviction for an acquittal. This is not considered to be double jeopardy, either – in this case, the appeal and subsequent conviction are deemed to be a continuation of the original trial.

For an appeal from an acquittal to be successful, the Supreme Court of Canada requires that the Crown show that an error in law was made during the trial and that the error contributed to the verdict. It has been suggested that this test is unfairly beneficial to the prosecution. For instance, Martin L Friedland, in his book My Life in Crime and Other Academic Adventures, contends that the rule should be changed so that a retrial is granted only when the error is shown to be responsible for the verdict, not just one of many factors.

When I posted my comment about an appeal from a possibIe Doreen acquittal I was thinking about Jack Klundert, a Canadian tax evader covered in this thread:

viewtopic.php?f=46&t=5876

Klundert was aquitted twice by jury and both times the aquittal was appealed by the prosecution and a new trial ordered. He was found guilty the third time around and that one stuck.

So do I take it that in the US an acquittal is final even if the decision was based on an error in law on the part of the jury or the judge?

[jcolvin2]

So do I take it that in the US an acquittal is final even if the decision was based on an error in law on the part of the jury or the judge?

Correct. Because of this risk, the prosecution (but not the defense) can appeal pretrial on an expidited basis from many rulings that could affect the shape of the trial. The defense must almost always wait until after trial (and conviction) to appeal adverse rulings.

[wserra]

And yes, it would be a jury trial. God bless 'em.

Are we sure?

Unless the judge limits the possible sentence to six months (the "petty offense" sentence to which you referred) - yeah, we're sure. Cheff v. Schnackenberg, 384 U.S. 373 (1966).

I'm not sure I'm reading section 18 USC sec 402 correctly, but it seems to provide for a maximum sentence of 6 months in any criminal contempt case.

402 doesn't apply:

This section shall not be construed to relate to ... contempts committed in disobedience of any lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States, but the same, and all other cases of contempt not specifically embraced in this section may be punished in conformity to the prevailing usages at law.

Emphasis supplied. Doreen is charged with criminal contempt for violating the order in the action the United States brought against her and Pete.

As for the meaning of the last sentence: see Dan's post in the related Doreen thread, referring to a discussion he and I had some time ago about maximum sentences for criminal contempts.

[jcolvin2]

And yes, it would be a jury trial. God bless 'em.

Are we sure?

Unless the judge limits the possible sentence to six months (the "petty offense" sentence to which you referred) - yeah, we're sure. Cheff v. Schnackenberg, 384 U.S. 373 (1966).

I'm not sure I'm reading section 18 USC sec 402 correctly, but it seems to provide for a maximum sentence of 6 months in any criminal contempt case.

402 doesn't apply:

This section shall not be construed to relate to ... contempts committed in disobedience of any lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States, but the same, and all other cases of contempt not specifically embraced in this section may be punished in conformity to the prevailing usages at law.

Emphasis supplied. Doreen is charged with criminal contempt for violating the order in the action the United States brought against her and Pete.

As for the meaning of the last sentence: see Dan's post in the related Doreen thread, referring to a discussion he and I had some time ago about maximum sentences for criminal contempts.

I agree that section 402 doesn't technically apply.

However, part of the contempt charge against Dorren relates to filing a false tax return in violation of the judge's order. Accordingly, I can see an argument that section 402 (contempts constituting separate criminal offenses) -with its 6 month maximum - may be the most analogous crime for purposes of determining the maximum sentence. On the other hand, 26 USC sec 7206(1) - with its 3 year maximum - is also implicated. It could be argued, perhaps under the Rule of Lenity, that the government should not be able to seek a higher maximum for contempt simply because it was a party in the underlying case. The government always had the discretion to charge Doreen with a 26 USC sec 7206(1) violation if it wished to obtain the higher maximum sentence, but chose not to do so. It may have chosen the contempt route because the trial would be easier and more efficient.

With respect to what the government will have to prove to obtain a conviction, at least outside the Sixth Circuit, there is substantial authority that something less than full blown "willfulness" is required for a contempt conviction:

http://www.justice.gov/usao/eousa/foia_ ... m00769.htm

[wserra]

It could be argued, perhaps under the Rule of Lenity, that the government should not be able to seek a higher maximum for contempt simply because it was a party in the underlying case.

I suppose that could be argued, were it not for the law. Take it up with Congress.

[jcolvin2]

It could be argued, perhaps under the Rule of Lenity, that the government should not be able to seek a higher maximum for contempt simply because it was a party in the underlying case.

I suppose that could be argued, were it not for the law. Take it up with Congress.

Perhaps I was inartful in explaining my position. My point was that if there were two equally analgous crimes - 26 USC 7206(1) and 18 USC 402 - surely there is an argument that the statute with the lower punishment should be chosen. Is there case law holding that 18 USC 402 can never function as the most analogous crime with respect to a prosecution under 18 USC 401? My quick search did not locate such a case. While I think an argument that 402 is the most analogous statute is unlikely to prevail, a criminal defense attorney would not be sanctioned for making the argument.

[AndyK]

FWIW: From Pete's "The News"

Another American Hero

The corrupt state keeps calling them forth...

FOUR WEEKS AGO, AT ABOUT 8:30 IN THE MORNING ON JUNE 7, a handful of very polite -- even chastened-seeming-- federal agents accompanied by a couple of frankly apologetic county sheriff's deputies showed up at my house. I went out to meet them, imagining that some new effort to punish me for revealing the Leviathan-toppling truth about the income tax had begun.

I was wrong; at least, I was wrong to imagine that this new effort targeted me directly. Instead, these folks had a warrant for my wife. Doreen was taken downtown to the federal fortress/dungeon in Detroit and arraigned on a one-count charge of criminal contempt of court.

The indictment proposes that Doreen willfully failed to obey what is alleged to be a "lawful" court order from back in 2007 commanding her to make "amended tax returns" repudiating those she and I had filed in 2002 and 2003 (and for which we had received the first complete tax refunds in American history). The same single count in the indictment also alleges that Doreen violated a "lawful order" intended to control her testimony on future filings.

Both commands are transparently UN-lawful. This is dramatically underscored by the government's insistence that compliance with the "amended return" command must include Doreen concealing the fact that any such instruments-- on which she is told what she must say and forced to sign it with a declaration that the content is what she herself knows and believes to be true-- are completed as such under duress, and that the content does NOT, in fact, reflect what she believes to be true.

Doreen DID create "amended returns" containing the government's preferred content years ago-- after being subjected for two weeks to a daily fine and under a threat of immediate incarceration as well, should her resistance persist too long even despite the fine. But she plainly marked them as being coerced, and not her own testimony. The government complained to the court that these honest and accurate instruments wouldn't serve its purposes, and the court "clarified" its order with the further demand that the true character of these false documents be hidden from view.

IT IS DIFFICULT FOR ME TO EXPRESS how nauseated this corrupt assault on a good woman and a good American makes me. The corruption is underscored by the fact that what Doreen was ordered to say by the court has never been said by the government itself-- indeed, the government has explicitly avoided saying it in several circumstances in which its duty or interests would require it to do so, if it actually believed these things to be true.

Anyway, I have waited to speak of this assault until a motion to dismiss this outrageous charge could be completed and filed. That motion does the best possible job of explaining the background and true nature of this despicable new state effort to suppress a liberating truth it state finds hugely dangerous to its lawless ambitions, and its callous disregard of the trampling on the rights of a good and innocent woman this corrupt scheme requires in order to succeed. See it here. {Link to same document previously posted at Q}

I hope all of you raise the roof over this outrageous assault on the rule of law, due process, and all that is right and decent. Call every journalist and public interest law firm you know. Aside from an unavoidable perfunctory webpost, the DOJ is doing its best to keep this one off everyone's radar screen, because its so egregiously wrong and so impossible to defend.

They don't WANT journalists to get wind of their bogus charge against this good woman for refusing to lie for them over her own signature. YOU make the noise, and don't let them get away with it.

[notorial dissent]

Gaack!!! It's all about Pete, always, all about Pete!!!! Ego doesn't even begin to describe it. Pompous ass comes close though.

"Leviathan-toppling truth", only if you're Prattlin' Pete in full delusory state.

Why this came as a shock, since the judge has been threatening to do so since before Pete was put away.

The only nausea I feel is toward Pete and his attitude towards the whole subject.

[Famspear]

Gaack!!! It's all about Pete, always, all about Pete!!!! Ego doesn't even begin to describe it. Pompous ass comes close though....

Yep......

Remember this one???

Peter Hendrickson's Narcissistic Hymn To Himself

--sung to the tune of "I’ve Gotta Be Me" (original words and music by Walter Marks; hit version, c. 1968, sung by Sammy Davis, Jr.)

I know I’m right; I’ll never be wrong….
My beautiful face in this world is always so strong….
It’s all about Me…. It’s all about Me…
Oh, why can’t they see: I’m Superman….

I want to live, and also connive.
And I won't give up this dream
Of life that keeps me alive….
It’s all about Me…. It’s all about Me…
Delusion, you see, makes Me what I am….

My far-away prize, My World of Success,
I have not attained, because of My fall.
I won't knuckle down, although I'm a mess,
For now I believe, yes I believe, I deserve it all….

I'll go it alone, that's how it must be;
Cannot think about somebody else --
It’s all about Me….
It’s all about Me…. It’s all about Me…..
I could just cry: I’m living a lie!
It’s all about Me….

from July 11, 2012, at:

viewtopic.php?f=8&t=8540&start=20

[LPC]

Gaack!!! It's all about Pete, always, all about Pete!!!! Ego doesn't even begin to describe it. Pompous ass comes close though.

I'm beginning to think that even "narcissist" is becoming inadequate.

[notorial dissent]

Quite true, I don't think it even comes close to describing his self absorption.