Hendrickson hearing, motion to dismiss indictment

[mutter]

Pete was arraigned on November 12, 2008 in federal court in Detroit.

The 10-count indictment charges that for the calendar years 2000, 2002, 2003, 2004, 2005, and 2006 Hendrickson filed IRS Forms 1040 (income tax returns) and/or IRS Forms 4852 (Substitute for Form W-2) stating under penalties of perjury that he had received no wages in those years. The indictment indicates that he had in fact received wages in those years in varying amounts.

The indictment specifically alleges the facts (as stated by the grand jury) as stated above.

The charged violations are federal crimes which fall within the subject matter jurisdiction of the federal district courts. The charged actions occurred within the physical jurisdictional area of the Detroit court. Thus, both subject matter and personal jurisdiction are established.

Mutter:
Please show us the flaws in that analysis of jurisdiction.

Nikki that is not what the indictment says. it says "he knew he earned wages" or something like that. I am paraphasing as I dont have it in front of me. It absolutley doesnt state that he indeed earned wages as defined. note I said as defined. meaning not the everyday use of the word. The DOJ played a word game with "wages". the fact remains that what the gov says its gonna prove, hendrickson believed other than what he put on the forms thus making them fradulent, is an impossiblility. Unless psychics are competant witnesses these days
Post what specific statement in the indictment alleges a fact. Now I ve only read the indictment once or twice so dont give me crap if I am not remembering it completely

[Prof]

The facts alleged are quite specific:

As to each of the years in question, the government alleges that the Defendant:

Filed a 1040;
Verified and subrscribed that 1040 under penalty of perjury;
Stated that he had earned no "wages" (and had received W-2's);
Stated that he did not believe that statement to be true and correct.

These are factual allegations sufficient to invoke the subject matter jurisdiction of the federal district court (in personam jurisdiction and venue are established by the residence/arrest of the Defendant). Sometimes these are called "allegations of jurisdictional facts."

Now, of course, as Mutter seems to point out, the government must prove these facts, including the "fact" that Hendrickson did not believe that he had earned wages. This should not be too hard, given the success of Mr. Hendrickson's "mutterings" about the IRC (the CTC stuff doesn't even rise to the level of a theory). Of course, a jury will determine the validity of the Cheek defense. The Court, of course, gets to decide the legal defense of wages, and the Circuit has already decided that issue in an opinion binding on the District Courts, so the legal argument goes away.

What Mutter seems to ignore is that the only defense available to Hendrickson would seem to be the Cheek defense; the legal defense -- that CTC is legally correct -- would appear to be completely gone, given the Circuit level rulings on this very same legal issue.

[mutter]

Nikki that is not what the indictment says. it says "he knew he earned wages" or something like that. I am paraphasing as I dont have it in front of me. It absolutley doesnt state that he indeed earned wages as defined. note I said as defined. meaning not the everyday use of the word. The DOJ played a word game with "wages". the fact remains that what the gov says its gonna prove, hendrickson believed other than what he put on the forms thus making them fradulent, is an impossiblility. Unless psychics are competant witnesses these days
Post what specific statement in the indictment alleges a fact. Now I ve only read the indictment once or twice so dont give me crap if I am not remembering it completely

And what will mutter (or other LHers and CtCers) do if the jury finds PH guilty on some or all of the charges? That is, the jury finds, beyond a reasonable doubt, that PH knew exactly what he was doing and knew exactly that it was wrong?

do you really beleive that if you loose in court youre wrong? Especially in a tax case?

[Lambkin]

the fact remains that what the gov says its gonna prove, hendrickson believed other than what he put on the forms thus making them fradulent, is an impossiblility. Unless psychics are competant witnesses these days

Welcome to Quatloos mutter! This point you are making is not true. It is common for people charged with a crime to say they believed something which should reduce their culpability in some way. (eg, "I didn't know the gun was loaded. I was told it was loaded but did not believe it.") Juries deal with this all the time - sometimes they believe you, other times they don't and you go to prison. No psychics required.

In my opinion, the jury is not going to believe Pete's story and he will be convicted. Or it could go the other way; juries sometimes give credit to the most absurd excuses.

[wserra]

I never stated evidence has to be in an indictment. I said a fact must be alledge to.

Which fact? The general rule is FRCrP 7(c)(1): an indictment "shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged". Needless to say, there are many specific applications of the Rule, but it basically means that an indictment must allege the date and place of the offense, plus the elements of the charged crimes. It need not contain evidentiary details. As the Supreme Court put it, "an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense". Hamling v. United States, 418 U.S. 87 (1974). I assume that you refer to Hendrickson's indictment. So how is it insufficient? Why hasn't his experienced lawyer moved to dismiss it on that ground?

In answering, please bear in mind that legal argument pretty much requires citations. While you're entitled to your opinion, your opinion doesn't make law.

SMJ is not just can the court here this case, the rules must be followed as well.

"The rules" is not very specific, and in fact "subject matter jurisdiction" does mean, among other things, a court's power to hear a case. Pleas cite a case which holds that a violation of the pleading rules of FRCrP 7(c) divests a court of jurisdiciton.

I know a person who had a coplained dismissed by a JP court due to lack of jurisdiction cos the person didnt submit a notorized affidavit. this was the JPs words in the dismissal.

My great-aunt Tillie grows prize-winning tomatoes in her garden in the Sea of Tranquility. Anecdotes are great, aren't they?

What is failure to state a claim upon which relief may be granted other than a SMJ dismissal?

Let me take a wild guess: a dismissal for failure to state a claim? Not everything is about jurisdiction.

[Nikki]

Isn't that actually the definition of being wrong?

Joe says the law means X and did something based on that interpretation.

He goes to court and the jury finds that his interpretation is not correct.

He loses.

Not correct = WRONG

What part of that do you not understand?

Are you now going to get into the corrupt courts, bribed / threatened judges routine

[mutter]

The facts alleged are quite specific:

As to each of the years in question, the government alleges that the Defendant:

Filed a 1040;
Verified and subrscribed that 1040 under penalty of perjury;
Stated that he had earned no "wages" (and had received W-2's);
Stated that he did not believe that statement to be true and correct. You mean that he did believe, right.

These are factual allegations sufficient to invoke the subject matter jurisdiction of the federal district court (in personam jurisdiction and venue are established by the residence/arrest of the Defendant). Sometimes these are called "allegations of jurisdictional facts."

Now, of course, as Mutter seems to point out, the government must prove these facts, including the "fact" that Hendrickson did not believe that he had earned wages. This should not be too hard, given the success of Mr. Hendrickson's "mutterings" about the IRC (the CTC stuff doesn't even rise to the level of a theory). Of course, a jury will determine the validity of the Cheek defense. The Court, of course, gets to decide the legal defense of wages, and the Circuit has already decided that issue in an opinion binding on the District Courts, so the legal argument goes away.

What Mutter seems to ignore is that the only defense available to Hendrickson would seem to be the Cheek defense; the legal defense -- that CTC is legally correct -- would appear to be completely gone, given the Circuit level rulings on this very same legal issue.

First off "mutterings' was good
this isnt a willfullness issue this is an issue of the Gov. or anyone attempting to prove you didnt believe what you signed. i wouldnt be offering the court an affirmitive defense. The DOJ says he didnt beleive that so the forms he filed where fraudulent. They are the ones who have to proove he did believe he was earning wages. If his lawyer has any level of competency "Wages" will be the wages defined in the IRC

[RyanMcC]

Mutter, were you born in the United States? Do you speak any languages other than English? Just curious.

[mutter]

I never stated evidence has to be in an indictment. I said a fact must be alledge to.

Which fact? The general rule is FRCrP 7(c)(1): an indictment "shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged". Needless to say, there are many specific applications of the Rule, but it basically means that an indictment must allege the date and place of the offense, plus the elements of the charged crimes. It need not contain evidentiary details. As the Supreme Court put it, "an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense". Hamling v. United States, 418 U.S. 87 (1974). I assume that you refer to Hendrickson's indictment. So how is it insufficient? Why hasn't his experienced lawyer moved to dismiss it on that ground?

In answering, please bear in mind that legal argument pretty much requires citations. While you're entitled to your opinion, your opinion doesn't make law.

SMJ is not just can the court here this case, the rules must be followed as well.

"The rules" is not very specific, and in fact "subject matter jurisdiction" does mean, among other things, a court's power to hear a case. Pleas cite a case which holds that a violation of the pleading rules of FRCrP 7(c) divests a court of jurisdiciton.

I know a person who had a coplained dismissed by a JP court due to lack of jurisdiction cos the person didnt submit a notorized affidavit. this was the JPs words in the dismissal.

My great-aunt Tillie grows prize-winning tomatoes in her garden in the Sea of Tranquility. Anecdotes are great, aren't they?

What is failure to state a claim upon which relief may be granted other than a SMJ dismissal?

Let me take a wild guess: a dismissal for failure to state a claim? Not everything is about jurisdiction.

If a claim is not stated the court never gained what? subject matter jurisdiciton. You want me to cite you a JP case that was dismissed?
the indictment is insufficent for the reason i already stated. it doesnt allege a fact. it alleges that the DOJs opinion is Hendrickson beleived he did receive wages so therefore the forms are fraudulent. They have to prove fraud. How? How are they gonna demonstrate PH didnt beleive what he signed under penalties of perjury.
I dont know why dont you ask his lawyer. but as the Best she could come up with boils down to "the gov is picking on my client" I would be looking for another lawyer myself

[mutter]

Nikki that is not what the indictment says. it says "he knew he earned wages" or something like that. I am paraphasing as I dont have it in front of me. It absolutley doesnt state that he indeed earned wages as defined. note I said as defined. meaning not the everyday use of the word. The DOJ played a word game with "wages". the fact remains that what the gov says its gonna prove, hendrickson believed other than what he put on the forms thus making them fradulent, is an impossiblility. Unless psychics are competant witnesses these days
Post what specific statement in the indictment alleges a fact. Now I ve only read the indictment once or twice so dont give me crap if I am not remembering it completely

And what will mutter (or other LHers and CtCers) do if the jury finds PH guilty on some or all of the charges? That is, the jury finds, beyond a reasonable doubt, that PH knew exactly what he was doing and knew exactly that it was wrong?

Probably come here and irritate you

[Prof]

The facts alleged are quite specific:

As to each of the years in question, the government alleges that the Defendant:

Filed a 1040;
Verified and subrscribed that 1040 under penalty of perjury;
Stated that he had earned no "wages" (and had received W-2's);
Stated that he did not believe that statement to be true and correct. You mean that he did believe, right.

These are factual allegations sufficient to invoke the subject matter jurisdiction of the federal district court (in personam jurisdiction and venue are established by the residence/arrest of the Defendant). Sometimes these are called "allegations of jurisdictional facts."

Now, of course, as Mutter seems to point out, the government must prove these facts, including the "fact" that Hendrickson did not believe that he had earned wages. This should not be too hard, given the success of Mr. Hendrickson's "mutterings" about the IRC (the CTC stuff doesn't even rise to the level of a theory). Of course, a jury will determine the validity of the Cheek defense. The Court, of course, gets to decide the legal defense of wages, and the Circuit has already decided that issue in an opinion binding on the District Courts, so the legal argument goes away.

What Mutter seems to ignore is that the only defense available to Hendrickson would seem to be the Cheek defense; the legal defense -- that CTC is legally correct -- would appear to be completely gone, given the Circuit level rulings on this very same legal issue.

First off "mutterings' was good
this isnt a willfullness issue this is an issue of the Gov. or anyone attempting to prove you didnt believe what you signed. i wouldnt be offering the court an affirmitive defense. The DOJ says he didnt beleive that so the forms he filed where fraudulent. They are the ones who have to proove he did believe he was earning wages. If his lawyer has any level of competency "Wages" will be the wages defined in the IRC

No, Mutter. The indictment states that Hendrickson did not believe the statement that he had not earned wages when he signed the 1040 -- or, put another way, Hendrickson knew that he was lying when he filed a return that said he had not received wages.

Since the courts have ruled that he did receive wages (see the Circuit, etc., rulings) the legal defense of "wages must have a federal nexus" is pretty much gone. Pete's only defense is the Cheekdefense, which is basically "I really believed that I did not have wages and ...." This defense doesn't have a very good track record. [Hint: at his new trial, the jury did not believe Mr. Cheek.]

[mutter]

whats your definition of "United States"
yes i am an american born in allentown PA
Yes I do speak other languges. German and enough Spanish not to get shived in mexico city.
yes I can type real fast, but not always accurate.
which reminds me FamSpear could you please stop putting Sic by my-anyones spelling errors. it makes it real hard to speed read.

[mutter]

The facts alleged are quite specific:

As to each of the years in question, the government alleges that the Defendant:

Filed a 1040;
Verified and subrscribed that 1040 under penalty of perjury;
Stated that he had earned no "wages" (and had received W-2's);
Stated that he did not believe that statement to be true and correct. You mean that he did believe, right.

These are factual allegations sufficient to invoke the subject matter jurisdiction of the federal district court (in personam jurisdiction and venue are established by the residence/arrest of the Defendant). Sometimes these are called "allegations of jurisdictional facts."

Now, of course, as Mutter seems to point out, the government must prove these facts, including the "fact" that Hendrickson did not believe that he had earned wages. This should not be too hard, given the success of Mr. Hendrickson's "mutterings" about the IRC (the CTC stuff doesn't even rise to the level of a theory). Of course, a jury will determine the validity of the Cheek defense. The Court, of course, gets to decide the legal defense of wages, and the Circuit has already decided that issue in an opinion binding on the District Courts, so the legal argument goes away.

What Mutter seems to ignore is that the only defense available to Hendrickson would seem to be the Cheek defense; the legal defense -- that CTC is legally correct -- would appear to be completely gone, given the Circuit level rulings on this very same legal issue.

First off "mutterings' was good
this isnt a willfullness issue this is an issue of the Gov. or anyone attempting to prove you didnt believe what you signed. i wouldnt be offering the court an affirmitive defense. The DOJ says he didnt beleive that so the forms he filed where fraudulent. They are the ones who have to proove he did believe he was earning wages. If his lawyer has any level of competency "Wages" will be the wages defined in the IRC

No, Mutter. The indictment states that Hendrickson did not believe the statement that he had not earned wages when he signed the 1040 -- or, put another way, Hendrickson knew that he was lying when he filed a return that said he had not received wages.

Since the courts have ruled that he did receive wages (see the Circuit, etc., rulings) the legal defense of "wages must have a federal nexus" is pretty much gone. Pete's only defense is the Cheekdefense, which is basically "I really believed that I did not have wages and ...." This defense doesn't have a very good track record. [Hint: at his new trial, the jury did not believe Mr. Cheek.]

Why would you offer an affirmitive defense to this? the Gov has to prove fraud, that he intentionally misrepresent a fact. Doesnt really matter if its wages or income etc. that would hang him. all he has to do is make the DOJ prove he didnt believe that by? Anyone have any ideas how thats gonna get done?
so youre saying a court stated hendrickson was paid wages as defined? cite that please, better yet post it as I dont have access to pacer or anywhere else to look it up

[Famspear]

. . . . which reminds me FamSpear could you please stop putting Sic by my-anyones spelling errors. it makes it real hard to speed read.

Actually, your spelling errors slow me down and make it hard for me to speed read. The insertions of the Latin "sic" magically speed me up, though!



Welcome to Quatloos!

[Famspear]

from Mutter:

I dont [sic] think calling you a troll constitutes a personal attack.

[ . . . ]

To the person who refered [sic] to me as crackhead[,] I believe its [sic] a violation of forum rules.

[Famspear]

Mutter, are you going to send/have you sent a message to Hendrickson's attorney about the big boo-boo she made in not asserting that the District Court lacks subject matter jurisdiction over Hendrickson's criminal case? Let us know what the attorney's response is.

[Prof]

Why don't you review:

http://www.cheatingfrenzy.com/hendrickson_app37.pdf, courtesy of Demo

And, the following , courtesy of Dan Evans:

Re: Hendrickson questioned
by LPC on Sun Feb 01, 2009 9:07 pm

. wrote:
Famspear wrote:
Hendrickson v. United States, No. 2:2006x 50394 (E.D. Mich. June 2, 2006) (pet. denied), aff'd, No. 06-1870 (6th Cir. April 10, 2007), reh'g denied, Aug. 8, 2007, cert. denied, No. 07-624 (Jan. 7, 2008), reh'g denied (Feb. 25, 2008).

It might be good to be more explicit.

Us non-lawyers may understand the abbreviations for petition denied, lower court decision affirmed, rehearing denied, etc., but the CtC morons seem to gloss over the legalese and don't get the fact that their head moron has lost at every turn. 4, maybe 5 times just in that (too) brief summary.

You might want to lay out just how many times and just how extensively their head moron has abysmally lost his sorry ass. Not to mention how many times they might lose theirs.
The citations that Famspear lists above are just to the refund suit, which Hendrickson not only lost, but on appeal was sanctioned for being so stupid as to appeal something that was perfectly obvious to everyone but him and his Crackheads.

So lets throw in his battles against the summonses:

Peter E. Hendrickson v. United States, No. 3:2006mc00008 (U.S.D.C. E.D. Va. 5/8/2006) (petition denied; Capital One Bank ordered to comply with summons); Peter E. Hendrickson v. United States, No. 8:2006cv00345 (U.S.D.C. Neb. 10/4/2006) (petition denied); Peter E. Hendrickson v. United States, No. 2:2006x 50394 (U.S.D.C. E.D. Mich. 6/2/2006) (petition denied), affirmed, No. 06-1870 (6th Cir. 4/10/2007), rehearing denied, 8/8/2007, cert. denied, No. 07-624 (1/7/2008), rehearing den. (2/25/2008); Peter E. Hendrickson v. United States, No. 2:2006x 50396 (U.S.D.C. E.D. Mich. 6/29/2006) (petition denied), affirmed, No. 07-1144 (10/2/2007 6th Cir.), rehearing denied (11/30/2007); Peter E. Hendrickson v. United States, No. 5:2006mc80094 (U.S.D.C. N.D. Cal. 7/18/2006) (petition to quash summons directed at EBAY/PayPal denied), affirmed, No. 06-56129 (9th Cir. 8/13/2007).

That's 0-for-5: denied, denied, denied (and affirmed), denied (and affirmed), and denied (and affirmed). A total of five losses in four different District Courts (E.D. Va., Neb., E.D. Mich., N.D. Cal.), three losses in two different Circuit Courts (6th and 9th), and one denial of certiorari by the Supreme Court. And yet the Crackheads think PH "won" because the IRS withdrew all the summonses once they decided to pursue the criminal prosecution instead.Dan Evans
Author of the Tax Protester FAQ
evans-legal.com/dan/tpfaq.html
-------------------------------------
"One is not superior merely because one sees the world as odious." Francois Rene de Chateaubriand (1768-1848).
LPC
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And, to answer your question regarding affirmative defenses, if the IRS wishes to indict for the phony tax returns it must allege a violation of the statute; it did so, by alleging that Hindrickson knew he was lying when he said he had no wages. The prima facie case requires the IRS to show that Hendrickson filed returns he knew were false; Hindrickson does not have to file an affirmative -- i.e., Cheek-- defense. He might just move for acquital on the argument that the US has failed in its burden. That works, from time to time. Ask Percy Forman about the Duke of Duval (a famous acquital based upon the failure of the US to show, in a mail fraud case, the actual use of the mails to deliver checks); Mr. Forman just rested at the end of the government's case and then moved for an acquital. His client walked out of the courtroom a free man. Takes big ones to do that sort of thing, though.

[RyanMcC]

whats your definition of "United States"

The "United States" is the country we live in, it includes the states of Alaska and Hawaii. You would agree with that wouldn't you?

[Famspear]

Oh, and Mutter, while you're at it, ask yourself whether Hendrickson is going to argue in court that he was not aware of the existence of (1) the Internal Revenue Code, (2) the Treasury regulations, (3) court decisions rejecting his interpretation of the tax law, (4) rulings of the Internal Revenue Service rejecting his interpretation, (5) the contents of personal income tax return forms, e.g., Form 1040, and (4) the accompanying IRS instructions for Form 1040.

I think you know the answer.

Do you understand why Hendrickson's awareness of the existence of these things might result in a conviction?

[mutter]

Mutter, are you going to send/have you sent a message to Hendrickson's attorney about the big boo-boo she made in not asserting that the District Court lacks subject matter jurisdiction over Hendrickson's criminal case? Let us know what the attorney's response is.

Nope (Sic)he doesnt listen. i am basically just an observer