Irwin Schiff, 6th Amend, and Bi-Polar Disorder

[LPC]

I kid you not.

Irwin Schiff is seeking post-conviction relief on the following issue: "whether the appellant was deprived of his Sixth Amendment right to the effective assistance of counsel when his attorney failed to raise the following issue on direct appeal: Did the District Court err when it granted the government’s motion to exclude expert evidence of appellant’s bipolar disorder?"

Oral argument was today (9/12), and recording is here.

United States v. Irwin Schiff, No. 12-17712 (9th Cir. 9/12/2013).

[fortinbras]

I must admit that I have seen some strange mental defect defenses (remember the Twinkie Defense? the Kojak Defense?) but it would be tough to defend Schiff's CONTINUOUS and prolonged criminal behavior on the basis of an INTERMITTENT mental defect.

[notorial dissent]

The last I heard, being bi-polar didn't relieve you of responsibility unless you had been declared incompetent, and don't I remember that they did do a psych eval on him at the time of the trial because he was being so weird?

[fortinbras]

I do recall that some sort of mental defect defense was attempted a few years ago and it failed - failed at least to excuse his crimes.

The defendant's purported bipolar condition did not work as a defense (nor to nullify a guilty plea) in a number of cases, including:

US v. Sharrak (6th Cir, 5/30/2013) 111 AFTR2d 2144, 2013 USTC ¶ 50352;
US v. Bent (3d Cir, 9/20/2011) 445 Fed.Appx 487
and
US v. Rickert (8th Cir 2011) 685 F.3d 760 cert.denied _US_, 133 S.Ct 1609:
http://scholar.google.com/scholar_case? ... s_ylo=2009

[JamesVincent]

Bi-polar is not a mental illness that changes the way one thinks on a regular basis so I don't see a correlation between committing a planned and thought out crime and bi-polar. I could very well see it being used as a mitigating factor in a crime of passion. My ex had untreated bi-polar and that wasn't what made her stupid, just what made me want to get away from her.

[AndyK]

IIRC; at his trial, Schiff almost violently objected to any attempt to label him with any mental disorder.

Perhaps someone else has easily accessible records dating back to then ???

[AndyK]

Well, at least Quatloos has a good memory.

This thread (at post of Mon Oct 01, 2012 2:41 pm) contains information regarding Schiff's first appeal and specifically addresses the 'bipolar mental disorder' issue.

[Famspear]

If one listens to the entire recording, one can hear the Court continuing to probe the attorneys for both parties about what the Cheek doctrine is supposed to mean in terms of the taxpayer's "belief."

Essentially, under what circumstances can an actual belief negate "willfulness" under the criminal provisions of the Internal Revenue Code?

As I have said before, the courts began introducing confusion over the term "willfulness" as soon as the courts began speaking in terms of "belief" and "actual belief" of the defendant. In Cheek, the Supreme Court was really speaking not about any old actual belief (and many or most tax protesters do actually believe that they are right about what the law is) but instead about an "actual good faith belief based on a misunderstanding caused by the complexity of the tax law."

Under Cheek, while taxpayer's subjective belief does not have to be objectively reasonable to negate willfulness, the actual belief does have to be an "actual good faith belief based on a misunderstanding caused by the complexity of the tax law". Under Cheek and other cases, the standard formulation of willfulness is the "voluntary, intentional violation of a KNOWN legal duty" -- a legal duty of which the defendant was AWARE. Justice Scalia's comments to the contrary notwithstanding, I would argue that a person can KNOW of a legal duty without actually believing (in an ordinary sense, but not in the "Cheek sense") that the duty is a legal duty. Under Cheek, a rational jury can properly find that the defendant's awareness of court decisions rejecting the defendant's interpretation of the tax law is evidence of willfulness, even though the defendant actually believes (in an ordinary, every day sense) that the courts are wrong and he is correct. In other words, evidence that the defendant KNEW (i.e., was aware) that the courts had rejected his interpretation may (under Cheek) properly be interpreted by a rational jury as evidence that the defendant's holding of his actual belief is simply the defendant's act of DISAGREEING with a KNOWN tax law (and a KNOWN legally imposed duty).

Under Cheek, not all actual beliefs are created equal.

EDIT: As I have written in another place:

Disagreement with the taxing authority's interpretation of the law does not negate willfulness. And if the taxing authority's interpretation of the law happens to be correct, a rational jury can find that the defendant's awareness of that interpretation is evidence of the defendant's willfulness -- evidence of the defendant's voluntary, intentional violation of a KNOWN legal duty -- a legal duty of which the defendant is AWARE. A refusal to believe that a legal duty exists after the defendant has been informed that such a legal duty exists is really a refusal to agree that the legal duty exists. The fact that the defendant refuses to agree that his legal duty exists does not negate his or her awareness of the existence of that legal duty. Thus, an actual belief that a legal duty does not exist -- where the defendant has been informed that such a legal duty exists but consciously refuses to accept it -- might not rise to the level of an actual good faith belief based on a misunderstanding caused by the complexity of the tax law, and thus might not negate willfulness.

[Pottapaug1938]

Bi-polar is not a mental illness that changes the way one thinks on a regular basis so I don't see a correlation between committing a planned and thought out crime and bi-polar. I could very well see it being used as a mitigating factor in a crime of passion. My ex had untreated bi-polar and that wasn't what made her stupid, just what made me want to get away from her.

$2 years ago this month, I had a girlfriend who, when she was in a good mood, was absolutely wonderful; but when she wasn't she was absolutely vicious. Fortunately, our relationship didn't last the month and I met my future wife a week later. The ex later turned into a very close friend; and years later she was diagnosed with bipolar disorder. We have long since agreed that we were meant to be close friends and nothing more; and last November my wife and I took a road trip to Texas to see my ex and her longtime husband.

"Margaret" would be the first to tell you that she does not have a disabling problem; and in fact she has a steady and well-paid job. She would also be the first to tell Irwin Schiff that he is full or what a lot of Texas ranchers have in their pastures.

[The Observer]

Irwin tried to inject the mental illness defense during his trial. The quote below in my signature is from that trial.

[Number Six]

A convenient argument, but bizarre from someone who had a decent mind, memory, but extraordinary cunning and deceitfulness. When I worked as a clerk for A & P as a teenager, once a shopping cart got away from me in the parking lot on an incline and it hit a car door. When cornered and queried by the store manage, they called him "mumbles" because he used a vibrating device to speak as his vocal cords did not work right, cornered me with the owner of the car as to whether I was the guilty party? I either said no or said I didn't remember. Faulty memory defenses seem to have been quite effective by politicians, not so much the mental defect defense as juries are very skeptical of that especially when made by career evasion specialists. I'm sure Irwin is quite proud of his wealthy son, and Peter hopes his father will one day be able to be a free man again.

[notorial dissent]

I don't think there is any question that Schiff is delusional, it is just that it is of the willful and intentional variety, and therefore no defense.

I do think that if he had a claim for ineffective counsel, he had only himself to blame, as it appeared to me that he went out of his way to make his attorney's job as difficult and nearly impossible as possible, but then again, a client sabotaging their own defense is not the court's fault either nor hardly new.

I don't think this latest attempt is going to any more traction than any of his previous attempts.

The only problem with junior, is that I thought it sounded like he was beginning to follow in Dad's footsteps, and may ultimately be joining him if he isn't careful. I'm all for family togetherness, but I think that stretches things just a bit.

[jcolvin2]

One of Irwin's co-defendants, Lawrence Cohen, attempted to raise mental illness issues during the trial in order to contest the "willfulness" element of the tax charges, but was rebuffed by the trial judge. At the Ninth Circuit, Cohen obtained a new trial:

http://cdn.ca9.uscourts.gov/datastore/o ... 610145.pdf

[LPC]

One of Irwin's co-defendants, Lawrence Cohen, attempted to raise mental illness issues during the trial in order to contest the "willfulness" element of the tax charges, but was rebuffed by the trial judge. At the Ninth Circuit, Cohen obtained a new trial:

http://cdn.ca9.uscourts.gov/datastore/o ... 610145.pdf

Good point, but I think that Cohen is distinguishable.

Cohen had attempted to introduce evidence of narcissistic personal disorder, and the 9th Circuit agreed that the NPD diagnosis, if accepted by the jury, could have led the jury to conclude that Cohen lacked ability understand that his actions were illegal, and so he lacked the necessary "willfulness." ("According to his expert’s report, a narcissistic personality disorder like Cohen’s can cause a person to continue to believe something to be true despite overwhelming evidence of its patent absurdity.")

Schiff didn't offer evidence of NPD (which I think he suffers from), but bipolar disorder. That might be relevant if he violated tax laws while manic but not while depressed. But if he violated the tax laws when he was both manic and depressed, what difference does it make?

[notorial dissent]

Possible, but I think, highly unlikely. Cohen, and Schiff for that matter could well have NPD, but I have never heard of it being so totally overwhelming that the person didn't know right from wrong, usually if it is that severe they are either dead or institutionalized somewhere. In point of fact, it isn't that they don't know right from wrong, they just don't believe it applies to them, a minor but significant difference I would think. Now what they may be able to convince a jury of is something else.

[LPC]

The 9th Circuit has affirmed the district court's denial of Schiff's claim of ineffective appellate counsel.

The substance of it:

1. Schiff’s argument, that appellate counsel was ineffective for not appealing the district court’s exclusion of evidence of his bipolar disorder, fails. Schiff’s claim regarding the exclusion of mental health evidence is similar to one raised by codefendant Cohen on direct appeal, and which formed the basis for this Court reversing Cohen’s conviction and remanding for a new trial. United States v. Cohen, 510 F.3d 1114, 1123–27 (9th Cir. 2007). But Schiff and Cohen were situated very differently with respect to knowledge about the validity of their beliefs. Even assuming Schiff’s appellate counsel was ineffective, Schiff cannot demonstrate that he was harmed by counsel’s failure to raise this issue on appeal.

In Cheek v. United States, 498 U.S. 192, 201 (1991), the Court distinguished between “innocent mistakes caused by the complexity of the Internal Revenue Code,” as opposed to positions that “reveal full knowledge of the provisions at issue and a studied conclusion, however wrong, that those provisions are invalid and unenforceable.” Id. at 205. With regard to the second category, the Court held that “a defendant’s views about the validity of the tax statutes are irrelevant to the issue of willfulness.” Id. at 206.

On direct appeal, this Court characterized the evidence against Schiff as “overwhelming, particularly the evidence that he intended to deceive the government through the use of zero returns.” United States v. Cohen, 262 F. App’x 14, 16 (9th Cir. 2007). The overwhelming evidence at trial was that Schiff was aware his claimed beliefs lacked merit and that he simply disagreed with the law. Schiff had previously been punished for filing zero returns. He knew that numerous tax returns submitted by his clients had been returned as frivolous by the IRS and had resulted in penalties upheld by courts. He also knew his positions regarding tax law were rejected in every court to consider them.

Trial testimony also showed that, knowing his beliefs and activities did not comport with tax law, Schiff counseled his clients to undertake affirmative acts of misrepresentation. Schiff engaged in evasive conduct too -- after his bank account was levied upon by the IRS, he opened bank accounts under false taxpayer identification numbers and avoided IRS seizure of his vehicle by titling it in a friend’s name.

Given the extensive evidence that Schiff knew his views of the tax law were incorrect, he cannot establish that his Cheek good-faith defense was prejudiced by counsel’s decision not to raise on direct appeal the district court’s suppression of evidence of his bipolar disorder.

2. Schiff’s counsel was not ineffective for choosing not to appeal the district court’s exclusion of certain testimony seeking to confirm Schiff’s own beliefs that the tax laws are invalid and unenforceable. Counsel could have reasonably concluded that evidence was irrelevant to the issue of willfulness. Cheek, 498 U.S. at 206 (“[A] defendant’s views about the validity of the tax statutes are irrelevant to the issue of willfulness.”). In addition, Schiff failed to lay a foundation as to how the actions of certain witnesses might have formed the basis of beliefs Schiff allegedly held about offshore assets.

3. Schiff next contends appellate counsel was ineffective for not arguing on direct appeal that the district court erred when it excluded certain legal materials during trial. This claim fails as well. Schiff has failed to demonstrate that he was prejudiced by the exclusion of an article from the Journal of Taxation, which was not relevant to Schiff’s alleged beliefs, or two Supreme Court cases, which were likely to mislead and confuse the jury. See United States v. Powell, 955 F.2d 1206, 1214 (9th Cir. 1992). And the district court never prohibited Schiff from reading a statute; it merely told him he must identify any document from which he was going to read during his testimony.

4. Finally, appellate counsel was not ineffective for failing to appeal the district court’s refusal to admit into evidence The Great Tax Hoax, a book Schiff authored which explains how he reached his beliefs about tax laws, and a 3 ½-hour tape of a video seminar in which Schiff explains his beliefs. The book and video contained misstatements of the law and would have served to confuse the jury and waste its time. See Powell, 955 F.2d at 1214 (holding a court may exclude testimony or evidence containing misstatements of the law); Masson v. New Yorker Magazine, Inc., 85 F.3d 1394, 1400 (9th Cir. 1996) (finding district court properly refused to admit into evidence excerpts of book because jury cannot be expected to read a whole book, and excerpts would be time consuming, misleading, and confusing). Further, Schiff was able to testify at trial about the basis for his beliefs; providing the jury with a written summary and video of his beliefs would only serve to repeat his testimony.

[Paths of the Sea]

See also:

http://www.forbes.com/sites/peterjreill ... ce-appeal/

Sincerely,
Maury Enthusiast!

[LPC]

Irwin Schiff's son, Peter, has some commentary on his father's appeal (and condition) in a Forbes column.

Weirdest part:

Peter Schiff believes that his father’s fight against the IRS is hopeless and unwise. He tried to convince his dad that there is a better way to fight the battle against, in his view, excessive government interference in our lives and the economy. Peter Schiff follows the tax law as most of us commonly understand it, even though he agrees with his father that the law is being incorrectly applied and that the income tax does not apply to most of those who pay it.

Yep, apparently Peter Schiff buys into his father's "only corporate income is 'income'" argument.

And people trust that idiot to invest money for them?

[AndyK]

Peter has to put up a good front.

On a TOTALLY UNRELATED point, the government has yet to dig up whwere all of Irwin's money went.

[Paths of the Sea]

Some of Schiff's supporters have showed up to comment on the latest Forbes article noted above.

Some of y'all might want to make your appearance there to respond.

Sincerely,
Maury Enthusiast!