Brian K. Small: Two-time Loser

[KickahaOta]

Because just being convicted for tax evasion isn't enough, a tax protester tries paper terrorism as well. The order from the Seventh Circuit affirming his conviction is small enough to just quote here:

After he was imprisoned and fined for tax evasion, Brian Small retaliated against the former Secretary of the United States Department of the Treasury and a Bureau of Prisons employee by attempting to file false liens against them for more than 100 million dollars. He pleaded guilty to one count of filing false liens against public officials, see 18 U.S.C. § 1521, and he received a below-guidelines sentence of 20 months’ imprisonment. Small filed a notice of appeal, but his appointed counsel seeks to withdraw under Anders v. California, 386 U.S. 738 (1967), because he is unable to identify a nonfrivolous issue. We invited Small to respond, see 7TH CIR. R. 51(b), but he did not. Because counsel’s analysis appears to be thorough, we limit our review to the subjects he discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).

Counsel first considers whether Small could challenge the validity of his guilty plea but neglects to say whether he discussed this possibility with his client. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287 F.3d 667, 670–71 (7th Cir. 2002). Counsel’s omission, however, does not require that we deny the Anders motion because his discussion and our review of the record persuade us that any challenge to the guilty plea would be frivolous. The transcript of the plea colloquy shows that the district court substantially complied with Rule 11 of the Federal Rules of Criminal Procedure. See United States v. Blalock, 321 F.3d 686, 688–89 (7th Cir. 2003); United States v. Akinsola, 105 F.3d 331, 334 (7th Cir. 1997). The court advised Small of the trial rights he waived by entering a guilty plea, the charges against him, the maximum penalties (including fine, imprisonment, and supervised release), the role of the sentencing guidelines, and the judge’s discretion in applying the guidelines. See FED. R. CRIM. P. 11(b)(1). The court also ensured that Small’s guilty plea was supported by an adequate factual basis and made voluntarily. See id. R. 11(b)(2), (3).

The remaining potential arguments raised by counsel concern the legality of the sentence imposed. Counsel asks whether Small could challenge the six-level “official victim” increase under U.S.S.G. § 3A1.2(b) on grounds that his attempt to file the false liens were unsuccessful and no victim was actually harmed. See U.S.S.G. §§ 2A6.1, cmt. n.2, 3A1.2(b). But counsel correctly concludes that this challenge would be frivolous because the official need not be harmed to be a victim. See United States v. McCaleb, 908 F.2d 176, 178–79 (7th Cir. 1990); United States v. Drapeau, 188 F.3d 987, 991 (8th Cir. 1999).

Counsel next considers challenging a six-level increase under U.S.S.G. § 2A6.1(b)(1) for attempting to carry out a threat. We agree with counsel that such a challenge would be frivolous because an expressed intent to harm property is a threat, see United States v. England, 507 F.3d 581, 589 (7th Cir. 2007), and Small warned the Secretary in writing that he would file a lien against the Secretary’s property unless the Secretary paid off his debt.

Finally, counsel asserts that it would be frivolous to contest the reasonableness of Small’s sentence. His 20-month sentence is substantially shorter than his calculated guideline range of 51 to 63 months, and thus it is presumptively reasonable, Rita v. United States, 551 U.S. 338, 347 (2007); United States v. Martinez, 650 F.3d 667, 671 (7th Cir. 2011). Counsel has not identified a reason to disturb that presumption. The district court properly acknowledged Small’s history and characteristics, including his roles as a parent and as the primary caretaker for his ailing mother, and his steady work history over many years at the same company. See 18 U.S.C. § 3553(a)(1). The court also considered the nature and circumstances of the offense: Small demonstrated a pattern of antigovernment behavior, and he committed the offense while completing his sentence for tax evasion. See id. We agree with counsel that a challenge to Small’s sentence would be frivolous.

We GRANT counsel’s motion to withdraw and DISMISS the appeal.

[Famspear]

This guy is a real winner.

From the U.S. Court of Appeals for the Seventh Circuit, on June 28, 2012, in United States v. Brian K. Small, case no. 11-1614, June 28, 2012:

Brian Small, who believes he is a nontaxable "sovereign citizen," appeals pro se from a jury verdict finding him guilty of tax evasion, see 26 U.S.C. § 7201, and failing to file tax returns, see 26 U.S.C. § 7203. We affirm.

In 2003 and 2005 Small gave his employer documents resembling Internal Revenue Service Form W-4, on which he claimed to be exempt from federal income taxes. For these years (2003 through 2005) his employer did not withhold federal income tax from his wages, and Small did not file federal tax returns. He did file a 2006 return—two years late—upon learning that he was being investigated by the IRS. Altogether Small failed to pay about $55,000 in federal income taxes. He eventually was charged with four counts each of tax evasion and failing to file tax returns between 2003 and 2006.

The case proceeded to trial, and Small's participation was unconventional. Small, who insisted on representing himself, stayed in the spectators' section of the courtroom (out of a belief that advancing to the defense table would give the district court "jurisdiction" over him). Small described himself as the "executor of an estate" that he had established in his own name; this estate, he said, was the party actually charged and could not be prosecuted without his written authority. Small declined to participate meaningfully in the proceedings and left the courtroom before closing arguments. The jury found him guilty on all counts, and the judge sentenced him to concurrent prison terms of 21 months and 12 months, respectively, on each of the tax evasion and failure-to-file counts.

On appeal, Small argues that the district court improperly asserted subject-matter jurisdiction over his case because, he says, the federal criminal jurisdiction statute, 18 U.S.C. § 3231, was passed without a quorum in the House of Representatives and is therefore invalid. But Small's argument is foreclosed by the "enrolled-bill rule," under which a bill certified by the presiding officer of each chamber—as was the case with § 3231, see 94 CONG. REC. 568 (1948)—is "complete and unimpeachable." See Marshall Field & Co. v. Clark, 143 U.S. 649, 672 (1892); United States v. Thomas, 788 F.2d 1250, 1252 (7th Cir. 1986); United States v. Farmer, 583 F.3d 131, 151-52 (2d Cir. 2009); Public Citizen v. U.S. Dist. Court for Dist. of Columbia, 486 F.3d 1342, 1349-50 (D.C. Cir. 2007).

Small next argues that his conviction should be vacated because, he says, the prosecution failed to satisfy an unspecified statute requiring it to obtain approval from the Attorney General before prosecuting tax cases. Small seems to have in mind provisions of the United States Attorneys' Manual, which indeed require the Department of Justice's Tax Division to approve Title 26 prosecutions that result from grand jury investigations. See United States Attorneys' Manual, §§ 6-4.010, 6-2.000, 6-4.200; see also 28 C.F.R. § 0.70; United States v. Benson, 941 F.2d 598, 612 (7th Cir. 1991). But Small has not shown that the government here failed to secure this approval, and in any event the U.S. Attorneys' Manual does not confer substantive rights. See United States Attorneys' Manual, § 1-1.00; United States v. Schwartz, 787 F.2d 257, 267 (7th Cir. 1986); United States v. Lopez-Matias, 522 F.3d 150, 155 n.11 (1st Cir. 2008).

Small also hints at a due-process violation when he challenges the district court's decision to allow the proceedings to continue upon his departure from the courtroom before the government's closing argument. It is true that Small had a due process right to be present at his trial, see Kentucky v. Stincer, 482 U.S. 730, 745 (1987); United States v. Benabe, 654 F.3d 753, 768 (7th Cir. 2011), but his choice to absent himself from the proceedings waived this right. See Benabe, 654 F.3d at 768 (citing Taylor v. United States, 414 U.S. 17, 18-19 (1973); Diaz v. United States, 223 U.S. 442, 455 (1912)); see also FED. R. CRIM. P. 43(c)(1)(A).

Small suggests that the district court failed to comply with the Court Reporter Act, 28 U.S.C. § 753(b), by furnishing him with trial transcripts that were somehow incomplete. This claim fails, however, because Small fails to demonstrate prejudice as a result of the alleged omissions. See United States v. Nolan, 910 F.2d 1553, 1560 (7th Cir. 1990); United States v. Weisser, 417 F.3d 336, 342 (2d Cir. 2005).

Small lastly maintains that paying federal income taxes is optional, but federal courts have roundly rejected such arguments. See, e.g., United States v. Raymond, 228 F.3d 804, 812 (7th Cir. 2000); United States v. Sloan, 939 F.2d 499, 500-01 (7th Cir. 1991); United States v. Middleton, 246 F.3d 825, 841 (6th Cir. 2001).

Small's remaining arguments are frivolous and do not warrant further discussion.

AFFIRMED.

Fifty-four year old Brian Keith Small is inmate # 30277-424 at the Sandstone Federal Correctional Institution at Sandstone, Minnesota, and is scheduled for release on August 18, 2016.

[Famspear]

A nutty protester named Brian
Isn’t winnin’ whatever he’s tryin’.
No, the dense Mister Small
Has no sense -- none at all --
And his nonsense the Court just ain’t buyin’.

[Famspear]

Note: The report re-printed as the first post in this thread can be cited as: Order, docket entry 16, Oct. 23, 2015, United States v. Brian K. Small, case no. 15-1677, U.S. Court of Appeals for the Seventh Circuit (nonprecedential disposition).

That was on an appeal from the U.S. District Court for the Western District of Wisconsin, case no. 14-CR-18.

[Hyrion]

Small also hints at a due-process violation when he challenges the district court's decision to allow the proceedings to continue upon his departure from the courtroom before the government's closing argument. It is true that Small had a due process right to be present at his trial, ... but his choice to absent himself from the proceedings waived this right.

Perhaps it should be suggested to the OPCA Crowd that their argument combined with their choice to leave means the only option to ensure they have a "right to be present at their trial" is if the authorities force them to be present.

Of course, if that actually happened (not counting when they're their because they're in custody) - they'd actually have a valid claim of being forced to do something they don't want to do.

It truly is ironic they insist on it being their choice if they are present or not, decide not to show up, then attempt to claim their choice was infringed upon.

The same irony exists for their right to represent themselves when they then later claim they should not have been allowed to do so.

[The Observer]

We have covered Brian before:

viewtopic.php?f=51&t=8568&p=143082&hili ... ll#p143082

viewtopic.php?f=27&t=4048&p=62698&hilit ... all#p62698

[KickahaOta]

Apologies for the new thread. I did a search for "brian small" before posting, but didn't dig down far enough in the search results.

[Famspear]

Apologies for the new thread. I did a search for "brian small" before posting, but didn't dig down far enough in the search results.

This happens. I did not recall the name Brian Small at all, even though it's very likely that I did read the other threads when they were created some years ago. The case I posted from 2012 had already been posted in one of the earlier threads. I didn't remember it at all.

I've been posting here for over eight years (and others have been posting here for much longer periods), and I have been reading the posts on tax protesters, etc., on virtually a daily basis.

It's what I live for.

[Judge Roy Bean]

...

I've been posting here for over eight years (and others have been posting here for much longer periods), and I have been reading the posts on tax protesters, etc., on virtually a daily basis.

It's what I live for.

Actually, I think what Famspear means is that he lives for the opportunity to write really, really bad limericks from time to time, and Quatloos is the only forum that won't permanently condemn him to a life of solitude for doing so.

It is, after all, what we would call a target-rich environment.

[LaVidaRoja]

A typical sovereign named Small
Believed he could overcome all
By making those pay
Who had got in his way
So we witness yet another fall

[Famspear]

Actually, I think what Famspear means is that he lives for the opportunity to write really, really bad limericks from time to time, and Quatloos is the only forum that won't permanently condemn him to a life of solitude for doing so.

It is, after all, what we would call a target-rich environment.

At count, I have somewhere in the neighborhood of forty to fifty of these.... umm, whatever they are..... posted at various places in the forum since the year 2007. Most of them are limericks. I'm thinking of collecting them in one place in a new thread, entitled "The Worst of Famspear"......

[LaVidaRoja]

But look how you've inspired me!!

[Judge Roy Bean]

In the alleged words of Admiral Yamamoto:

I fear all we have done is to awaken a sleeping giant and fill him with a terrible resolve.

[grixit]

Limericks are easy. How about some double dactyls?

[Famspear]

Limericks are easy. How about some double dactyls?

I thought double dactyls were extinct.

Oh, no, wait, that's pterodactyls.

[Famspear]

I find it's easy to confuse a pair of dactyls with pterodactyls, 'cause a pair of dactyls are like double dactyls.

Sort of.

[noblepa]

Limericks are easy. How about some double dactyls?

I thought double dactyls were extinct.

Oh, no, wait, that's pterodactyls.

The late, great author, Isaac Asimov, once wrote an essay entitled "You Too Can Speak Gaelic". In it, he described an episode when he was a graduate student, working on his PhD in Biochemistry.

He found himself in his lab one evening, running an experiment and realized he needed a quantity of the compound paradiethylaminobenzaldahide. He had to go to the supply room and request some of the substance and was afraid he would not remember the long, complex name.

Then he realized that it was in dactylic-tetrameter. He also realized that it could be sung to the tune of "The Irish Washerwoman". (If you don't recognize the name of that song, think of the music for an irish jig. That's "The Irish Washerwoman").

Off he went to the supply room, singing to himself. When he got there, the clerk heard him and exclaimed "Oh, you know it in the original Gaelic!". So, concluded Asimov, you too can speak Gaelic!

[Famspear]

....he realized that it was in dactylic-tetrameter.....

And I always thought dactylic-tetrameter was a dialect of Swahili.

[Hyrion]

And I always thought dactylic-tetrameter was a dialect of Swahili.

you mean..... it's not a dinosaur that flies?

[grixit]

I remember that story. The Good Doctor used to have a column in F&SF in the 60s and the columns were collected into books which i later read. Each column was about some science topic but each also contained some personal details, enough that one could extract them a write a short biography. The effect was to make him seem like a sort of distant friend. This was of course, before we reached the point of demanding the stocks for anything someone said or did in their past that might be considered less than couth. Today, even he would be considerably more circumspect.

But on the subject of sov stuff, i wonder if he would have let loose with the bombast as he did when he wrote about Velikovsky, or would he have punted the subject over to Martin Gardner.