Shrout, Winston

[Gannibal]

Minor update - on the 18th, Shrout filed a request for an extension of time in which to file his opening brief on appeal. Here's the docket entry:

Filed (ECF) Streamlined request for extension of time to file Opening Brief by Appellant Winston Shrout. New requested due date is 02/22/2019. [11159921] [18-30228] (Iniguez, Ruben) [Entered: 01/18/2019 04:55 PM]

No other action on the docket since December.

[Gannibal]

Another update, marginally less minor. Two docket entries late last week:

1. Shrout's request for an extension of time to file his appellate brief is granted. His brief now due 2/25, response due 3/27, reply due 21 days after service of the response. No surprise.

2. CA9 remands the appeal to the district court so that it can "state, orally or in writing, the reasons for its order denying appellant’s motion for bail pending appeal." This appears to be because the district court did not comply with FRAP 9(a)(1), which requires it to "state in writing, or orally on the record, the reasons for an order regarding the release or detention of a defendant in a criminal case."

District court has ten days to provide the necessary oral or written statement, after which Shrout will have 10 days to file a supplemental memorandum in support of his motion, and then the government will have 7 days in which to file an optional reply.

Assuming everyone takes all the available time, no ruling on his motion should be expected before February 22.

Shrout got pretty lucky here. Between the district court failing to provide the 9(a)(1) statement and the shutdown dragging out CA9's response, he managed to score another few months of freedom.

[Gannibal]

Another update. The district court has explained its rationale for denying Shrout's motion for continued release pending appeal.

First, I find that Shrout could pose a danger to the safety of others in the community if he remains on release. Shrout spent over a decade selling scams to hundred, if not thousands, of gullible people. He told them if they followed his advice, they could avoid paying taxes and that the government and banks would give them millions of dollars. Even after he was convicted in this case, he continued to advertise his for-profit seminars until I explicitly forbade him to continue. Even then, he told his followers that he would be back once the government changed. If he remains on release, he may well continue his illicit efforts.

Second, I find that delay is one of the purposes for Shrout's appeal. Following his conviction on April 21, 2017, Shrout requested a competency hearing which delayed sentencing. In addition, he filed three motions to set over his sentencing dates and I granted each of those. At his sentencing on October 22, 2018, Shrout requested a delay in the date he was to report to prison. Thereafter, he filed four additional motions to delay reporting to prison. Shrout was convicted more than 21 months ago. I agree with the government's sentiment that where justice is delayed, justice is denied. General deterrence is a crucial factor in tax cases where our system is based on voluntary compliance of the citizens.

Third, I find the appeal does not raise a substantial question of law or fact. The multiple efforts by the government to bring Shrout to justice were neither vindictive nor based on bad motives. Shrout had been plying his trade for over 10 years, had an international following, produced several books and DVDs to promote this tax dodging scheme. The investigation of the case was complex. And, during the course of its investigation, the government discovered additional information that warranted the filing of a superseding indictment. As to Shrout's 6th Amendment claim, I held a Faretta hearing and found Shrout's decision to forgo counsel valid. He knowingly and intelligently waived his 6th Amendment right to counsel in order to conduct his own defense. He fully understood the nature of the charges against him, knew the possible penalties he was facing and, most importantly, was aware of the dangers and disadvantages of self-representation. When I said Shrout was not competent, I meant that he did not
have a thorough knowledge of the legal system, the rules of evidence and criminal procedure - all the knowledge and experience his stand-by lawyer possessed and was willing to employ to defend Shrout.

Because Shrout is not able to satisfy the first three conditions required in Wheeler, I do not address the fourth. This was not a close case-there was overwhelming evidence of Shrout's guilt. Even if he were to prevail on an issue on appeal, it is unlikely to result in reversal or an order for a new trial of all counts on which imprisonment has been imposed.

[notorial dissent]

So does this mean Winny is finaly going to get to go to jail since the DC has complied with the AC's order and why they stayed the surrender?

[Gannibal]

Not right away. Shrout's got 10 days to update his motion to respond to what the court said, after which the DOJ has 7 days to file a response. Then the court will take some time, probably a few days at least, to rule.

Presumably Shrout's lawyer will take all 10 days, and if the DOJ responds it won't be immediately. (Unless they just file something saying they're waiving their right to respond, which is possible.)

I'd guess the appellate court will deny his motion around the end of February, and give him no more than a week to report to prison.

If you look at the district court's statement, the judge points out that Shrout has gone free for more than 22 months since his conviction. I think he's poking the appellate court, asking them to make sure he doesn't go two full years.

[NYGman]

Que Jonny Sunday's post saying Winston is still free... However, as above, this will be short lived. His attempts to delay the inevitable until he dies, seems to have almost come to an end. Unless he dies shortly, he will be enjoying rent free accommodation and free food, shortly.

So go on, Jonny, say it while you still can, as we all wait for all appeals to be exhausted, and for justice to be done. Winston is a vile man, who has caused other legal problems for other people, and made money of his "advice." If anyone deserves to be locked up, he certainly is that person.

[Judge Roy Bean]

The thing that bothers me most about this scenario is a quick comparison of how this elderly "white collar" criminal has been handled versus your garden-variety, non-violent drug offender.

[Gannibal]

Further minor update:

The district court, Shrout, and the DOJ each filed their respective papers within about 5 days rather than the 10 provided for by the appellate court, so things are a little ahead of the schedule I predicted earlier.

The latest filing was the DOJ's reply on February 8, making Shrout's reply (if any) due by Valentine's Day. Assuming CA9 rules quickly, he'll be in custody by the end of the month.

(The motion seems pretty open-and-shut to me, especially given the DOJ's essentially unrebutted point that even if Shrout were to prevail on appeal--which is very unlikely--it wouldn't reduce his sentence enough to justify continuing his release pending that appeal.)

[NYGman]

The latest filing was the DOJ's reply on February 8, making Shrout's reply (if any) due by Valentine's Day. Assuming CA9 rules quickly, he'll be in custody by the end of the month.

(The motion seems pretty open-and-shut to me, especially given the DOJ's essentially unrebutted point that even if Shrout were to prevail on appeal--which is very unlikely--it wouldn't reduce his sentence enough to justify continuing his release pending that appeal.)

I wonder if Johnny Sunday will come back after that happens, and admit he was wrong, again to cover my bases, that is unless Winston dies before then

[Gannibal]

Yet another minor update: Shrout has filed his reply through counsel, so the matter is all teed up for the appellate court. No idea when they'll rule. Odds definitely favor the DOJ on this one, especially given how long Shrout's remained out since his conviction, but it's not completely one-sided.

(I haven't delved into the issues deeply enough to have a clear picture of whether Shrout's arguments are winners, but his lawyer's been pretty effective so far. He's got an uphill battle with this motion, but not an unwinnable one.)

Presuming the court doesn't dawdle, Shrout's likely to get his date by the end of the month, and I'd bet he'll be in custody by early March.

As an aside, I'm on the ball on this case because I'm working on a law review article about "pseudolaw" and Shrout is one of the subjects I discuss. Anyone who is interested in reading and providing comments on the draft, please do hit me up.

[Gannibal]

Another update, not quite so minor this time:

Shrout's motion for bail pending appeal has been denied, as he has not shown that he would not be "a danger to the safety of any other person or the community if released."

The district court's order from last December directed him to surrender himself "the first Monday following the denial" of his motion for release pending appeal. So, as far as I can tell, he's now due to report on Monday, March 4. I hope he's prepared for this, and can get his affairs in order by then.

His motion for extension of time to file an opening brief has been granted; it's now due 3/8 (answer 4/17, reply +21 days).

Text of today's order:

In reviewing the district court’s denial of release pending appeal, we review factual determinations for clear error and legal determinations de novo. United States v. Garcia, 340 F.3d 1013, 1015 (9th Cir. 2003).

The district court did not err in finding that appellant has not shown, by clear and convincing evidence, that appellant is not likely to pose a danger to the safety of any other person or the community if released. See 18 U.S.C. § 3143(b); United States v. Handy, 761 F.2d 1279, 1283 (9th Cir. 1985). Accordingly, appellant’s motion for bail pending appeal (Docket Entry No. 6) is denied.

Appellant’s motion to extend time to file the opening brief (Docket Entry No. 18) is granted.

The opening brief and excerpts of record are due March 18, 2019; the answering brief is due April 17, 2019; and the optional reply brief is due within 21 days after service of the answering brief.

[benlowrey]

It’s amazing how long this has dragged out

[Pottapaug1938]

It’s amazing how long this has dragged out

... and how silent jonnysunday has become.

[lurker9000]

He is a danger to the community. He sells his b.s. to gullible people that do not realize they are arguing the definitions of words with the people that write the dictionary. Say what you will about Title 26 USC it is law, and unless it is modified or repealed it will continue to be law. You have to pay the tax rates in that title, you have to file on time. There is no getting around that. All that he does is drag other people down that probably wouldn't have done it but for the snake oil salesman.

The worst thing for Shrout and his ilk is that most people don't feel sympathetic towards him while nobody like to pay taxes most people realize what would happen if everyone stopped paying them. I take no pleasure in the fact that he'll likely spend the rest of his life in federal prison but he has earned that sentence and it's time for him to lie in the bed that he made.

[lurker9000]

It’s amazing how long this has dragged out

... and how silent jonnysunday has become.

Bueller . . . Bueller . . . Bueller

[benlowrey]

As soon as Winston gets locked up.

If any of you fancy doing a podcast with me to discuss the whole saga I’d be keen to do that
email benlowrey@me.com

[jonny sunday]

I think I'm banned from commenting because of a differing opinion.

[notorial dissent]

I think I'm banned from commenting because of a differing opinion.

And yet, here you are posting. Be civil and you won't get sent to your room. One and ONLY friendly warning Mod-ND.

[jonny sunday]

As soon as Winston gets locked up.

If any of you fancy doing a podcast with me to discuss the whole saga I’d be keen to do that
email benlowrey@me.com

I will be on your podcast with some of these quatloos types.

[grixit]

Please be more specific. What podcast and which quatloosian types?