Doreen Hendrickson Retrial Set for July 21, 2014

[Famspear]

Sentencing for Doreen Hendrickson, which had been set for November 20, has been re-set for December 10, 2014.

[Famspear]

Doreen Hendrickson's motion to vacate or for a new trial was rejected by the U.S. District Court on November 14, 2014:

ORDER DENYING DEFENDANT’S MOTION TO VACATE OR FOR A NEW TRIAL ON MULTIPLE GROUNDS (Dkt. # 103)

I. INTRODUCTION

“Errors must be corrected by appeal, not by disobedience.” Porter v. Merhar, 160 F.2d 397, 403 (6th Cir. 1947). Doreen Hendrickson veils her disobedience of a lawful order of this Court in the defense of “good faith.” A jury did not buy it, nor does this Court. Her Motion to Vacate or For a New Trial is DENIED.

II. BACKGROUND

Hendrickson was tried and convicted of criminal contempt under 18 U.S.C. § 401(3) for failing to comply with an injunctive court order entered by Judge Edmunds in a 2007 civil action (“Edmunds’ Order”). Edmunds’ Order required Hendrickson to file corrected tax returns for years 2002 and 2003, and refrain from filing false tax returns in the future. A jury found that Hendrickson wilfully violated the Order by filing a fraudulent tax return for 2008, and failing to amend her 2002 and 2003 tax returns.

Hendrickson filed a motion to vacate her conviction or for a new trial under Federal Rules of Criminal Procedure 29(c)(2) and 33(a). She gives five reasons why she is entitled to relief: (1) the Government committed fraud by misrepresenting evidence in a prejudicial manner; (2) standby counsel undermined her defense when he omitted questions she instructed him to ask; (3) the Government failed to prove she acted wilfully and without good faith; Hendricksons’ interpretation of Edmunds’ Order made it clear that she was entitled to the good faith defense; (4) the Government did not prove Edmunds’ Order was lawful; and (5) the Government did not prove that Edmunds’ Order was comprehensible and possible to comply with.

III. STANDARD OF REVIEW

Federal Rule of Criminal Procedure 29(c)(2) allows a court to set aside a jury’s guilty verdict and enter an acquittal if, after viewing the evidence in the light most favorable to the prosecution, the court determines no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Donaldson, 52 F. App'x 700, 706 (6th Cir. 2002). To reverse, the Court must determine that the verdict is not supported by “‘substantial and competent evidence’” on the record as a whole. United States v. Grubbs, 506 F.3d 434, 438 (6th Cir. 2007).

The Court cannot re-weigh the evidence, re-evaluate the credibility of witnesses, or substitute its judgment for that of the jury. Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). Instead, the Court must "make all reasonable inferences and credibility choices in support of the jury's verdict." United States v. Newsom, 452 F.3d 593, 608 (6th Cir. 2006). This standard places a heavy burden on the defendant which is difficult to overcome. United States v. Ramirez, 635 F.3d 249, 256 (6th Cir. 2011).

Federal Rule of Criminal Procedure 33(a) says “upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” The “interest of justice” standard provides relief to a defendant challenging a jury verdict that was against the manifest weight of the evidence, or when substantial legal errors or omissions occurred. United States v. Munoz, 605 F.3d 359, 373 (6th Cir. 2010).

“[G]ranting or refusing to grant such motions rests within the sound discretion of the District Court and its action must stand in the absence of a clear showing of abuse of discretion.” United States v. Hoffa, 382 F.2d 856, 862 (6th Cir. 1967). The Court must balance the alleged error against the record as a whole and evaluate the fairness of the trial. United States v. Bustamante, 1992 WL 192545 at *1 (6th Cir. Aug. 12, 1992). The defendant bears the heavy burden to show that a new trial is warranted. United States v. Davis, 15 F.3d 526, 531 (6th Cir. 1994).

IV. DISCUSSION

A. Allegation that the Government Misrepresented Evidence to Improperly Impeach Hendrickson

Hendrickson says the Government committed fraud by saying the civil actions listed in Hendrickson’s Exhibit 562 were related to a tax audit. She says the Government filed suits and would later dismiss them in an attempt to enjoin her husband from publishing his first book, “Cracking the Code The Fascinating Truth About Taxation in America” (“Cracking the Code”). She says the Government “obtained a conviction by innuendo and sharp practice rather than on the consideration of the evidence.”

The Court agrees with Hendrickson that it was improper for the Government to refer to the civil actions listed in Exhibit 562 as audits. An audit “is a review/examination of an organization's or individual's accounts and financial information to ensure information is being reported correctly, according to the tax laws, to verify the amount of tax reported is accurate.” “IRS Audits - What is an IRS audit?” (last visited Nov. 5, 2014), http://www.irs.gov/Businesses/Small-Bus ... IRS-Audits. The actions referred to in Exhibit 562 were part of a government investigation into potential abusive tax shelters. But, despite the reference to “audits,” Hendrickson’s argument fails for three reasons.

First, Hendrickson did not object to the misnomer. Consequently, she cannot raise it in her post trial motion. United States v. Gross, 375 F. Supp. 971, 978 (D.N.J. 1974) aff'd, 511 F.2d 910 (3rd Cir. 1975).

Second, the Government properly impeached Hendrickson. Impeachment is the use of a witness' prior inconsistent statements to attack her credibility and to cast doubt on the testimony given. United States v. Carter, 417 F.2d 229, 230-31 (3rd Cir. 1969).

For instance, during direct examination Hendrickson gave the following testimony about Exihbit [sic] 562:

Q: (Standby Counsel for Hendrickson) Mrs. Hendrickson, could you tell us what documents are contained in 562?"

A: (Hendrickson) ... Petitioner was the United States of America and they filed a Notice of Voluntary Dismissal Without Prejudice in their suit that they brought to stop publication of Cracking the Code.

Q: And the following documents - I didn’t finish my question - the following documents are Stipulations by the Government and the parties involved with respect to have the case dismissed?

A: That’s Correct.

Q: And these are related to one of those actions you said that the Government brought prior to filing the lawsuit with Judge Edmunds against your husband, correct?

A: That is correct.

Q: And what opinion did you form based on these dismissals about the validity of Cracking the Code?

A: Well, they were trying to enjoin my husband from making the book available to people who want it...”

Trial Tr., vol. IV, at 80 - 81. During cross-examination the Government got Hendrickson to admit that the cases referenced in Exhibit 562 were not cases to hinder publication of Cracking the Code:

Q: (Government) You testified yesterday that this Exhibit (562) contained three lawsuits or related to three lawsuits that the Government filed against your husband to stop him form [sic] publishing his book, is that right?

A: (Hendrickson) Yes.
...

Q: Isn’t it true that the these three cases you included in Exhibit 562 and talked about yesterday have nothing to do with the IRS trying to stop your husband from publishing his book?

A: I just found that out this morning.
...

Q: I want to show you what is marked for identification as Government Exhibits 47, 48, 49. Do you want to take a moment to look through those?

A: It would take me more than just a moment to look through something like this.

These were filed against my husband and I really did not deal with them and I would not be able to process them in this short a period of time.

Q: So you’re saying you’re not familiar with these cases?

A: Probably when it first happened...

Q: But you had no problem testifying yesterday as to those same three cases that you knew what they were.

A: Yes. If I’m familiar with something, that’s different, but I’m not familiar with this right now. This is 10 years ago.

Q: I’m asking you does the first page of Exhibit 562 relate to a civil case here in the Eastern District of Michigan, 04-72323?

A: It does.

Q: Isn’t it true, Mrs. Hendrickson, that the case was an effort to get your husband to produce documents to the IRS as part of an audit that was being conducted?

A: Again, you’re asking me about something that happened 10 years ago?

Q: Yesterday to get this document into evidence, to get this document into evidence yesterday you testified that you knew what this case was and today your testimony is that you’re not familiar with it?

A: There were cases to have the book not be published and I got them mixed up. Those were the ones I’m more familiar with, but these others I’m not as familiar with. I’m sorry.

Q: Mrs. Hendrickson, isn’t true that the Government has never filed a case against your husband to stop him from publishing a book, not once?

A: That’s not my recollection.

Q: So what case is that you’re referring to in which they sued to do that?

A: I don’t have the paperwork here obviously.

Q: And do you see that this case in Government Exhibit 47 relates to efforts to enforce a summons that was served on your husband as part of an audit?

A: I see...
...

Q: So this case that we have here on the screen which you testified yesterday was a lawsuit brought by the Government to stop your husband from publishing a book actually isn’t that at all, is it?

A: I’ve already acknowledged that I made a mistake.

Trial Tr., vol. V, at 14-17. Hendrickson acknowledged on the stand that the actions listed in Exhibit 562 were not lawsuits brought to enjoin publication of the book. On cross examination she contradicted testimony she gave on direct examination. She seemed confused and was unable to answer basic questions about her own exhibit.

A reasonable jury could have determined that Hendrickson’s contradictory testimony and unfamiliarity with her own exhibit suggested she was untruthful or lacked credibility. The Government was able to cast doubt on Hendrickson’s testimony and got her to admit her statements were wrong. Thus, she was properly impeached.

Finally, Hendrickson fails to establish her conviction is not supported by substantial and competent evidence. The Government did misuse the term “audit.”

However, this, without more, is not enough to prevail under Fed. R. Crim. P. 29 and 33.

B. Performance of Standby Counsel

Hendrickson challenges the performance of standby counsel. She says he usurped her defense and engaged in conduct that suited his own view of the case. She says he undermined her defense by failing to ask certain questions during direct examination. The questions concerned case law that Hendrickson says proved Edmunds’ Order violated her First Amendment rights. Hendrickson also says she relied on standby counsel’s representation that she could present these cases during closing argument; the Court did not allow them to be argued.

It is difficult for the Court to evaluate this objection because Hendrickson did not attach the questions standby counsel failed to ask. Instead, she states in conclusory fashion that the omission of the questions undermined her trial and verdict.

It may be the case that this objection is waived because Hendrickson did not object during trial. See, Gambill v. United States, 276 F.2d 180, 181 (6th Cir. 1960) (“A defendant cannot seemingly acquiesce in his attorney's defense and after the trial has resulted adversely to him obtain a new trial because of the incompetency of his attorney”).

However, assuming for the sake of argument that certain questions were not asked, Hendrickson fails to demonstrate standby counsel usurped control of her defense. According to Faretta v. California, 422 U.S. 806, 819 (1975), a pro se defendant has the right to self-representation at court proceedings. This right is undermined when standby counsel excessively participates in the proceedings, essentially destroying the jury’s perception that the defendant is acting pro se and makes significant tactical decisions which substantially interfere with the right of selfrepresentation. McKaskle v. Wiggins, 465 U.S. 168, 178 (1984).

Hendrickson fails to demonstrate that standby counsel made it appear to the jury that she was not proceeding pro se. And, she fails to demonstrate how standby counsel’s omission of questions from direct examination amounted to interfering with a significant tactical decision, since presentation of the cases that supposedly furthered her First Amendment argument would be cumulative.

For example, throughout trial Hendrickson argued Edmunds’ Order was unconstitutional, and the First Amendment excused her from compliance. She communicated this argument during her testimony and through witnesses. Hendrickson argued this point despite the fact the Sixth Circuit held on numerous occasions that Edmunds’ Order was constitutional. United States v. Hendrickson, No. 07-1510 (6th Cir. June 11, 2008); United States v. Peter Hendrickson, et al, No. 10-1824 (6th Cir. November 22, 2011).

The Court examined the evidence in the light most favorable to the Government, and it is clear that the verdict is supported by substantial and competent evidence. Omission of the alleged questions did not constitute substantial error requiring the judgment to be vacated. The jury heard Hendrickson’s First Amendment reliance throughout the trial and still found her guilty. The verdict is not against the great weight of evidence and it will not be disturbed.

C. Evidence of Hendrickson’s Wilfulness and Lack of Good Faith

Hendrickson says the Government failed to prove she acted without good faith when she did not follow the Order. She says she acted in accordance with the requirements of the good faith defense and she could not be convicted of contempt. In fact, she says department officials from government agencies never “took a formal position contrary to [hers]” and, as a result she was “awash in confirmations that the government itself has no good-faith dispute with her views.” She also says a reasonable jury could not convict her for violating Edmunds’ Order based on a particular tax evasion theory the Government says was in Cracking the Code because it was not in the book.

To obtain a conviction for criminal contempt the government must prove that a person acted wilfully. Downey v. Clauder, 30 F.3d 681, 686 (6th Cir. 1994). Wilfulness is defined as “a deliberate or intended violation, as distinguished from an accidental, inadvertent or negligent violation.” Id. at 686. One who acts wilfully knows or should reasonably be aware that her conduct is wrong. United States v. Armstrong, 781 F.2d 700, 706 (9th Cir. 1986).

Good faith is a complete defense to criminal contempt. United States v. Ray, 683 F.2d 1116, 1126 (7th Cir. 1982). The defense is available when a defendant has not refused to comply with the court order she is charged with violating, but fails to comply because of the indefiniteness of the order or some other inability to do so. Id.

Hendrickson’s good faith argument fails to meet the burden required to prevail under Fed. R. Crim. P. 29 or 33. Hendrickon [sic] misconstrues the good faith defense. Hendrickson argues “good faith” allowed her to disobey “orders which she perceives as dictating or controlling the contents” of her belief. She says such orders “are unlawful and impose no valid legal obligation upon her.” Essentially Hendrickson argues that she can disobey any court order she disagrees with. That is nothing more than an intentional violation of a valid court order. That is wilfulness. That is not good faith.

There is ample evidence that Hendrickson acted wilfully, without good faith, and in reliance on theories contained in Cracking the Code. For instance, Hendrickson testified she was the only person who accurately understood tax laws, and that her beliefs were in part based on Cracking the Code:

Q: (Government) So you believe that the Internal Revenue Service, the Department of Justice, Judge Edmunds and the three-judge panel of the 6th Circuit Court of Appeals, they all don’t understand the law, but you do?

A: (Hendrickson) They all disagree with me, yes.

Q: You think they’re all wrong in their reading of the tax laws?

A: Yes, I do.

Q: But you are correct?

A: Yes, I do believe that unequivocally.

Q: And that’s because based on your reading of Cracking the Code, you have this theory, this understanding of why the money that you and your husband made wasn’t income?

A: It’s not just Cracking the Code

Q: But that was one of the sources you consulted?

A: Correct.

Trial Tr., vol. V, at 37.

Also, when Hendrickson submitted her amended tax returns to the IRS they could not be processed because Hendrickson defaced them in violation of Edmunds’ Order. Trial Tr., vol. V at 31-32. When Hendrickson filed another tax return, she attached an affidavit that said, “I further disclaim these coerced returns because they are wholly false and fraudulent and not the product of my free will, but rather a product of the imposition of the power of the Government and the Court over my civil liberties and person.” Trial Tr., vol. V at 33.

A reasonable jury could find that Hendrickson lacked good faith and wilfully disobeyed the Order. Despite numerous government agencies, which undoubtedly have more experience interpreting tax laws than Hendrickson, repeatedly telling her that her theories were wrong and violated the law, Hendrickson stayed firm in her beliefs. She consistently relied on tax theories that have been debunked by multiple authorities to justify her disregard of the Order. She defaced a tax amendment, rendering it useless directly in violation of Edmunds’ Order. And, she continued her misguided and futile protest against the Order by attaching a frivolous affidavit to another amendment. All of these actions demonstrate willfulness. A jury could reasonably conclude that Hendrickson was not entitled to the good faith defense because her actions demonstrate an unwillingness to comply with Edmunds’ Order, rather than an honest inability to comply. The great weight of evidence supports the jury’s guilty verdict and a finding that Hendrickson did not act in good faith.

D. Legality of Edmunds’ Order and Hendrickson’s Ability to Comply

Hendrickson says a court never decided that Edmunds’ Order was lawful. Therefore, she is not guilty of contempt because the Government did not prove that she violated a “lawful order.” Hendrickson also says that the Order was impossible to comply with, and thus, a jury could not reasonably convict her for her non-compliance.

First, Hendrickson is incorrect that the Government must prove that an order is lawful before instituting contempt proceedings. The Supreme Court said court orders must be followed until they are deemed invalid:

An injunction duly issuing out of a court ...must be obeyed ... however erroneous the action of the court may be, even if the error be in the assumption of the validity of a seeming, but void law going to the merits of the case. It is for the court of first instance to determine the question of the validity of the law, and until its decision is reversed for error by orderly review, either by itself or by a higher court, its orders based on its decision are to be respected, and disobedience of them is contempt of its lawful authority, to be punished.

United States v. United Mine Workers of Am., 330 U.S. 258, 293-94 (1947). See also, Porter, 160 F.2d at 403. (“in a contempt case, ...[e]rrors must be corrected by appeal and not by disobedience. The violation of a criminal contempt order of court would be punishable as criminal contempt, even had the basic action become moot”)(citations omitted). Until a court says otherwise, persons subject to court orders must follow them, and failure to abide by these orders exposes a person to criminal contempt proceedings.

Hendrickson is required to follow Edmunds’ Order until a proper authority decides it is unlawful. A reasonable jury could find that her disobedience constituted criminal contempt. The great weight of evidence favors the jury’s guilty verdict.

Second, a reasonable jury could find that it was legally possible to comply with Edmunds’ Order. While inability to comply with a court order is a complete defense to the crime of criminal contempt, United States v. Bryan, 339 U.S. 323, 330 (1950), the Bryan defense only refers to physical impossibility beyond the control of the alleged contemnor. Inmates of Allegheny Cnty. Jail v. Wecht, 874 F.2d 147, 152 (3rd Cir.1989), vacated and remanded on other grounds, 493 U.S. 948 (1989). Self-induced inability is not a defense to a contempt proceeding. United States v. Asay, 614 F.2d 655, 660 (9th Cir. 1980).

Evidence was presented throughout the trial that Hendrickson was aware of Edmunds’ Order and chose not to comply. She was not physically incapacitated. She had the ability to submit corrected tax returns, yet chose to submit defaced returns inhibiting the IRS from processing them. And, she submitted returns “under protest.”

Examining all the evidence in favor of the Government, the Court finds that a reasonable jury could conclude that Hendrickson was able to legally comply with Edmunds’ Order, but chose not to do so because of her warped beliefs. Consequently, Hendrickson has not satisfied her burden under Fed. R. Crim. P. 29 or 33.

V. CONCLUSION

The Court DENIES Hendrickson’s motion; she fails to meet her burden under Fed. R. Crim. P. 29 and 33. Hendrickson wilfully disobeyed an order because she disagrees with its contents, and a jury legitimately convicted her for doing so.

IT IS ORDERED.

s/Victoria A. Roberts
Victoria A. Roberts
United States District Judge

Dated: November 14, 2014

--at docket entry 112, Nov. 14, 2014, case no. 2:13-cr-20371-VAR-LJM, United States v. Doreen Hendrickson, U.S. District Court for the Eastern District of Michigan (some fonts not reproduced).

[Famspear]

From the Court's decision:

....Despite numerous government agencies, which undoubtedly have more experience interpreting tax laws than Hendrickson, repeatedly telling her that her theories were wrong and violated the law, Hendrickson stayed firm in her beliefs. She consistently relied on tax theories that have been debunked by multiple authorities to justify her disregard of the Order......

Ah, yes..... Doreen (the infamous "appropriator of red phosphorus from the school district where she worked to make the firebomb" lady) Hendrickson and Peter (the infamous "video arcade manager" man) Hendrickson are the experts on federal tax law -- and any IRS employee, or tax lawyer, or CPA, or law professor, or federal judge who disagrees with her and Preposterous Pathetic Pete the Fabulous Felon is just wrong, eh Doreen?

[LPC]

“Errors must be corrected by appeal, not by disobedience.” Porter v. Merhar, 160 F.2d 397, 403 (6th Cir. 1947). Doreen Hendrickson veils her disobedience of a lawful order of this Court in the defense of “good faith.” A jury did not buy it, nor does this Court. Her Motion to Vacate or For a New Trial is DENIED.

Terse and to the point.

Hendrickson’s good faith argument fails to meet the burden required to prevail under Fed. R. Crim. P. 29 or 33. Hendrickon [sic] misconstrues the good faith defense. Hendrickson argues “good faith” allowed her to disobey “orders which she perceives as dictating or controlling the contents” of her belief. She says such orders “are unlawful and impose no valid legal obligation upon her.” Essentially Hendrickson argues that she can disobey any court order she disagrees with. That is nothing more than an intentional violation of a valid court order. That is wilfulness. That is not good faith.

Ouch.

[LPC]

Hendrickson’s good faith argument fails to meet the burden required to prevail under Fed. R. Crim. P. 29 or 33. Hendrickon [sic] misconstrues the good faith defense. Hendrickson argues “good faith” allowed her to disobey “orders which she perceives as dictating or controlling the contents” of her belief. She says such orders “are unlawful and impose no valid legal obligation upon her.” Essentially Hendrickson argues that she can disobey any court order she disagrees with. That is nothing more than an intentional violation of a valid court order. That is wilfulness. That is not good faith.

It just occurred to me that what the judge is describing here is not unlike the distinction drawn in the Cheek decision between statutory mistakes and constitutional mistakes. A defendant is allowed to argue that he didn't understand the law, but he's not allowed to argue that the law is unconstitutional.

Similarly, Doreen can argue that she didn't understand the court order, but she can't argue that it was unlawful or invalid.

[JamesVincent]

Similarly, Doreen can argue that she didn't understand the court order, but she can't argue that it was unlawful or invalid.

Yeah but isn't that 100% of what her argument was? That she was allowed to ignore an unlawful order?

[notorial dissent]

James I think you've got pretty much the basis of her complaint, she was basically claiming that the court was making her "testify" to something, her tax return, she didn't believe according to her CTC educated beliefs was correct or accurate. The court order was basically to fill out and file the returns according to Law not her fantasies, and she refused to do so, and so is now in big trouble.

[.]

This exchange (trimmed for brevity) sums up her problem nicely:

Q: So you believe that the IRS, the DoJ, Judge Edmunds and the three-judge panel of the 6th Circuit, they all don’t understand the law, but you do?

A: They all disagree with me, yes.

Q: You think they’re all wrong in their reading of the tax laws?

A: Yes, I do.

Q: But you are correct?

A: Yes, I do believe that unequivocally.

Still tilting hard at windmills.

What are they? About 15 years into their nonsensical trip down the I-don't-wanna-pay-my-income-taxes rabbit hole?

Meanwhile, CtC makes yet another ignominious appearance in the records of the federal courts. Looking forward to the next installment of this never-ending, serial lunacy. It's becoming almost Schiff-like.

[Arthur Rubin]

Hypothetically, a court order could require one to break the law. As an example, the order could require H to produce some documents, while H doesn't actually have them. (As a realistic example, H or her agents might have given the documents to a third party not under her control.)

What would the proper remedy be for H?

Not that this has anything to do with this case, even in theory.

[Paths of the Sea]

Hypothetically, a court order could require one to break the law.

As an example, the order could require H to produce some documents, while H doesn't actually have them. (As a realistic example, H or her agents might have given the documents to a third party not under her control.)

What would the proper remedy be for H?

Not that this has anything to do with this case, even in theory.

The court stated, in part:

- Good faith is a complete defense to criminal contempt.
-
- The defense is available when a defendant has not
- refused to comply with the court order she is charged
- with violating, but fails to comply because of the
- indefiniteness of the order or some other inability to
- do so.

The proposed example is not an example of a Court order requiring one to break the law.

I also liked this explanation from the Court:

- The Supreme Court said court orders must be
- followed until they are deemed invalid:
-
- "An injunction duly issuing out of a court ...must be obeyed ...
- however erroneous the action of the court may be, even if
- the error be in the assumption of the validity of a seeming,
- but void law going to the merits of the case. It is for the
- court of first instance to determine the question of the validity
- of the law, and until its decision is reversed for error by orderly
- review, either by itself or by a higher court, its orders based on
- its decision are to be respected, and disobedience of them is
- contempt of its lawful authority, to be punished."
-
- Until a court says otherwise, persons subject to court orders
- must follow them, and failure to abide by these orders exposes
- a person to criminal contempt proceedings.

If one cannot obey a court order one cannot be reasonably found to be in criminal contempt of the order.

As the Court began its analysis it noted that issues about such order are to be resolved through appeal and not through disobedience.

I think there are numerous analogies to be made between Doreen's case and the case of Kent Hovind that is coming up for trial, if it goes to trial. I look forward to seeing how similar the two wind up being if Kent goes to trial and, like Doreen, takes the stand.

Sincerely,
Maury Enthusiast!

[operabuff]

Hypothetically, a court order could require one to break the law. As an example, the order could require H to produce some documents, while H doesn't actually have them. (As a realistic example, H or her agents might have given the documents to a third party not under her control.)

What would the proper remedy be for H?

Not that this has anything to do with this case, even in theory.

I don't see your example as requiring H to do something illegal. She could certainly request the documents from the third party. The court may well believe that giving the documents to a third party was simply an artifice. And if H knows that the documents are in the possession of a third party, she can request that the court subpoena them from that third party.

A more obvious illegality (and one with some legendary precedent) would be an order in a rather intractable child custody case that the parties split the baby between them - each taking half.

[LPC]

I've thought of a strange but (I think) very apt analogy (or allegory or metaphor or something).

Under the Tariff Act of 1883, a tax was imposed on imported vegetables, but not fruits. In Nix v. Hedden, 149 U.S. 304 (1893), the Supreme Court of the United States held that tomatoes were vegetables for the purposes of the Act, and not fruits.

Now, suppose Doreen had been importing tomatoes, and she did a whole lot of research and concluded that, scientifically speaking, tomatoes are fruits and not vegetables. So she reported her imports as fruits and paid no tariffs.

When officials inspected her imports, they found that they were tomatoes, and so imposed the tariffs and required her to pay them. And, just to avoid problems in the future, they got a court order requiring her to report tomatoes as vegetables and not fruit whenever she imported tomatoes in the future.

When Doreen got her next shipment of tomatoes, she reported them as fruit, and was charged with contempt. Her response is that she couldn't report tomatoes as vegetables, because that would be perjury, because she honestly, truly believes that tomatoes are fruit.

Is she guilty of contempt? You betcher ass, Dad.

Having been told that, as matter of tariff law, tomatoes are vegetables and not fruit, what she personally believed became irrelevant. She wasn't asked to report importing tomatoes that she didn't import, or importing fewer tomatoes than she actually imported, but just report the actual tomatoes imported as vegetables.

Similarly, whether Doreen believes that wages are income is irrelevant. She was told that wages are income as a matter of law and that she had to report wages as income. Not to report wages that she didn't receive, and to fail to report wages that she did receive. Just report the wages received as income.

Her refusal to do that is criminal.

The tomato analogy is actually more favorable to her than the actual wages issue, because tomatoes really are fruits, biologically speaking, while wages really are income in economic terms, and in about any other kinds of terms you can think of.

[darling]

This is where a 'like' button would come in handy...

[KickahaOta]

Hypothetically, a court order could require one to break the law. As an example, the order could require H to produce some documents, while H doesn't actually have them. (As a realistic example, H or her agents might have given the documents to a third party not under her control.)

What would the proper remedy be for H?

Not that this has anything to do with this case, even in theory.

As others have said, this wouldn't be a case of ordering someone to break the law. This would be a case of the impossibility defense. A court cannot punish you for doing the impossible.

An interesting example of the impossibility defense is FTC v. Affordable Media.

Very briefly put, a couple was involved in a dodgy infomercial scheme, and wound up being on the receiving end of an asset freeze order. Correctly anticipating in advance that this might occur, the couple had funneled their money into an overseas trust. Now, the normal problem with moving money overseas to shelter it from judgments is that you have to be prepared to follow it there very quickly -- because when you tell the judge "I'm sorry, but that money is outside your jurisdiction," the judge can reply "Ah, yes, but you're inside my jurisdiction. I'm not ordering the trustee to do anything. I'm ordering you to retrieve the money from the trust."

In this case, the Andersons (the couple in question) thought they had a way to avoid that pesky problem. The trust they were using had a number of unorthodox features. Most notably, it had a duress clause: if the trustee received notice of a 'duress event' -- including a judgment or a court order -- the trustee was (purportedly) required to disregard any orders from the Andersons until the duress event was resolved.

So when the Andersons dutifully sent the trustee a letter to the effect of 'Pursuant to the court's order, we instruct you to put the money into the registry of the court', the trustee predictably replied to the effect of 'That's a duress event, so I cannot comply. I'm sure you'll be crushed.'

In other words, this trust was specifically designed to set up the impossibility defense -- and had been marketed to the Andersons on that basis.

This would have set up an extremely interesting legal test: Is the impossibility defense still valid if you intentionally set up the impossibility in advance?

But that angle of the case ultimately fizzled out, because the district court judge (and the appeals judges) resolved the case on a simpler ground: 'I don't believe you.' It turned out that the trust had a 'protector clause' that allowed the Andersons to override the trustee's decisions, including the trustee's decision to invoke the duress clause. When the government told the court that the protector clause existed, the Andersons promptly tried to resign as protectors. At that point, the district court essentially said 'It's your burden to prove impossibility, and even if your resignation is valid, I simply don't believe that you'd honestly put all this money completely out of your control. There are any number of other ways you could have set up in advance to control the trust. You could have an undated resignation letter from the trustee filed away somewhere, for example. I think that if I hold you in contempt and give you some time to think about the problem in a controlled environment, you'll find yourself "remembering" some solution to your little self-created problem.' And the appeals court agreed.

[Famspear]

But that angle of the case ultimately fizzled out, because the district court judge (and the appeals judges) resolved the case on a simpler ground: 'I don't believe you.' It turned out that the trust had a 'protector clause' that allowed the Andersons to override the trustee's decisions, including the trustee's decision to invoke the duress clause. When the government told the court that the protector clause existed, the Andersons promptly tried to resign as protectors. At that point, the district court essentially said 'It's your burden to prove impossibility....

Interesting. Obviously, the bad guys in this case were not, ummm.... specifically.... ummm.... too bright. They were definitely not as smart as federal judges. The fact that they tried to resign as "protectors" of the trust simply gave the courts even less cause to believe their story. I looked up the case, and here's an excerpt from the reasoning to which KickahaOta refers:

Perhaps the most telling evidence of the Andersons' control over the trust was their conduct after the district court issued its temporary restraining order ordering the repatriation of the trust funds. The Andersons sent a notice to the foreign trustee, ordering it to repatriate the trust assets because the district court had issued a temporary restraining order. The foreign trustee removed the Andersons from their positions as co-trustees and refused to comply with the repatriation order. After the Andersons claimed that compliance with the repatriation provisions of the temporary restraining order was impossible, the Commission revealed to the court that the Andersons were the protectors of the trust. The Andersons immediately attempted to resign as protectors of the trust. This attempted resignation indicates that the Andersons knew that, as the protectors of the trust, they remained in control of the trust and could force the foreign trustee to repatriate the assets...

--from Federal Trade Commission v. Affordable Media, LLC, 179 F.3d 1228, 1242-1243 (9th Cir. 1999), at:

http://scholar.google.com/scholar_case? ... s_sdt=6,44

[wserra]

A court cannot punish you for doing the impossible.

Or even not doing the impossible.

[operabuff]

But you've got to convince the court (or a reviewing court) that it is indeed impossible.

[KickahaOta]

For those with an interest in the Anderson case, there's quite an article about it (written from a member of the asset planning industry) at http://www.fraudsandscams.com/andersoncase.pdf.

[Famspear]

In the case of the Hendricksons, as in the case of the Andersons, it's almost as though they have blinded themselves to the point that that do not see the reality that their own actions and words destroy their credibility with others.

Doreen, for example, put certain documents in evidence -- as her own exhibits -- and yet when caught either intentionally or unintentionally misrepresenting what those exhibits were, she tried to plead that the materials were so "old" that she didn't remember the specifics. Yet, she had months and months to prepare for the case. These were her own exhibits. Yet, she didn't know what they consisted of? Either she was lying or she was very careless about making accurate statements in open court. Either way, her credibility was crushed.

Same for the Andersons. If they really did not have the power to get the money back from the trustee, then why try to "resign" as the "protector" of the trust? If being the protector of the trust gave them the power to get the money back, then (if they were really being honest with the Court) why not just use their power to retrieve the money and turn it over, so as not to risk going to jail? And, if being the protector did NOT give them that power, then would not a more prudent approach have been to try to persuade the Court that the "protector" status really didn't give them power over the trust? By trying to "resign", they simply increased the suspicion in the Judge's mind that they were simply trying to evade having to cough up what was alleged to be their ill-gotten gains, and that ultimately they had the power to comply.

All these people, ironically, seem to think that they are soooooo smart.

The Hendricksons, in particular, display a staggering level of arrogance.

arrogance (noun): "a feeling of superiority manifested in an overbearing manner or presumptuous claims". Webster's New Collegiate Dictionary, p. 63 (G. & C. Merriam Company, 8th ed. 1976); "overbearing pride or self-importance". Webster's New World Dictionary of the American Language, p. 77 (2d Coll. ed. 1978).

arrogant (adjective): "exaggerating or disposed to exaggerate one's own worth or importance in an overbearing manner". Webster's New Collegiate Dictionary, p. 63 (G. & C. Merriam Company, 8th ed. 1976); "full of or due to unwarranted pride and self-importance; overbearing; haughty". Webster's New World Dictionary of the American Language, p. 77 (2d Coll. ed. 1978).

[to] arrogate (verb): "to claim or seize without justification.... to make undue claims to having". Webster's New Collegiate Dictionary, p. 63 (G. & C. Merriam Company, 8th ed. 1976); "to claim or seize without right... to ascribe or attribute without reason". Webster's New World Dictionary of the American Language, p. 77 (2d Coll. ed. 1978).

Even after all that has happened to her husband and his followers, Little Ms. "Red Phosphorus Lady" insists that when it comes to federal tax law, she understands it -- and the IRS people and the Department of Justice people and the U.S. District Court judge and the Appeals Court judges do not.

No matter what anyone else says about this topic, she knows better. When her moment of glory arrived in open court, she could not competently explain what she herself put into her own trial exhibits in her own federal criminal case -- but she and her ex-con, narcissistic, loser husband, with no legal, tax or accounting training or expertise, claim to know something complex as federal tax law better than everyone else.

[KickahaOta]

In the case of the Andersons, I don't think it was arrogance so much as it was wishful thinking -- which, of course, is at the bottom of a lot of scams.

The folks structuring these sorts of trusts -- and the folks buying them -- had to deal with two requirements that would seem to be impossible to meet simultaneously:

• In order to set up the impossibility defense and avoid being held in contempt, the funds had to be outside the court's jurisdiction; and furthermore, the provider of the funds (the Andersons) had to be truly out of control of those funds, so that they could not legally be ordered to produce the funds.
• Because the provider of the funds is not insane, the provider of the funds will not accept actually being truly out of control of the funds.

In order to try to square that circle, the sellers of these trusts would come up with all sorts of interesting structures, side agreements, multi-layer arrangements, etc. The goal was to put in some feature that would make the trust seem like an ironclad third-party arrangement -- so that the bad ol' court would have to conclude that it could do nothing, and the bad ol' creditor would have to settle for pennies on the dollar -- while still letting the provider of the funds feel like they were secure.

For someone with nothing at stake, it's awfully easy to just look at those two requirements and say "You can't do both at once. Sorry." But if you're in the Andersons' position, and you're anticipating getting a lot of dubious and potentially vulnerable money, and you want to keep that money and live in the United States and stay out of jail, and especially if you're used to being able to talk your way around any problem, then all it takes is a bit of wishful thinking.

For another example on point, look at the ATM-leaseback Ponzi scheme implosion that's dominating another forum here. Again, for someone with no money in the game, and especially after the fact, it's really easy to say "There's no way a legitimate ATM business can promise 20% returns. Just no way." But if you could really use the money, and you're watching a friend or a family member consistently get those nice checks with no apparent problems, then all it takes is a bit of wishful thinking, and presto, it's a great investment opportunity.

Now, what happened to Doreen on the stand? That's beyond wishful thinking; I'll happily vote along with you for arrogance on that one. That, or just plain self-delusion (which is quite different from wishful thinking: in wishful thinking, you still know there's uncertainty -- you're just miscalculating the amount).