Latest in Hendrickson's criminal trial

[Dezcad]

Here is the latest pleading in PH's criminal case, entitled "Motion to Dismiss Indictment for Violation of Rule 7and Rule 12(b), Federal Rules of Criminal Procedure and the Fifth and Sixth Amendments to the Constitution of the United States" filed jointly by his attorneys, Ellen Dennis and Lyle D. Russell, Jr.

Here's part of the argument (obviously from PH):

It is the defendant’s position that although he may have been an employee and may have received wages, as those terms are commonly understood; he was not an “employee” or in “employment”, and he did not receive “wages”, as those terms are defined in the relevant portions of the Internal Revenue Code. That crucial distinction is not recognized by the indictment. The indictment thus fails to include all the elements of the offense charged.

Footnote 4 - Defendant’s discussion of this is included in the sixth chapter of the book he authored, Cracking the Code The Fascinating Truth About Taxation in America.

[Judge Roy Bean]

Do his attorneys not understand the term "frivolous?"

I guess they'll get at least one bite at the apple.

[cynicalflyer]

This reads almost exactly as if a) Pete wrote it and b) handed it to the attorneys to clean it up a little and throw in some citations.

[The Operative]

I see that they are going to attempt the "I am not a person" argument.

It is the defendant’s position that while he may be a person as that term is commonly understood, he is not a “person” as that term is defined in the relevant provision of the Internal Revenue Code. See, United States v. Neal, 93 F.3d 219 (6th Cir. 1996)

I also find it funny in the use of an appeals court ruling that overturned the district court's dismissal and the district court ruled in the favor of the defendant.

[Judge Roy Bean]

This reads almost exactly as if a) Pete wrote it and b) handed it to the attorneys to clean it up a little and throw in some citations.

I hope for their sake that is not what happened.

[Famspear]

I hope this doesn't sound like my hair is on fire with some crazy, off the wall, delusional frivolous, pseudo-legal theory, but I would suspect that for purposes of the Internal Revenue Code provisions cited by the defendant, (1) whether the defendant was a "person," (2) whether he was an "employee," (3) whether he received "wages," and (4) whether he was engaged in "employment" (page 12 of the Motion), are not questions so inextricably embodied in the elements of the crimes charged to the extent requiring the kind of detailed description in the indictment urged by the defendant.

Maybe it's just me.

[LPC]

I see that they are going to attempt the "I am not a person" argument.

It's actually worse than that.

1. The meaning of "person" is the first argument in the brief. I like to start with my best argument. That was theirs?

2. They are not really arguing that Hendrickson is not a "person." Rather, they are arguing that the statute defines a crime by a "person," so whether someone is a "person" is an element of the crime. By failing to allege that PH is a "person," the indictment fails to allege every element of the crime.

3. They want to examine the Grand Jury record to see if the Grand Jury was instructed on the meaning of "person" and whether the Grand Jury found "probable cause" as to whether PH was a person.

I wonder if this is an attempt to remove the presiding judge by inducing a stroke caused by hysterical laughing?

But there isn't any equivalent to Rule 11 in criminal proceedings, is there?

[LPC]

I see that they are going to attempt the "I am not a person" argument.

It is the defendant’s position that while he may be a person as that term is commonly understood, he is not a “person” as that term is defined in the relevant provision of the Internal Revenue Code. See, United States v. Neal, 93 F.3d 219 (6th Cir. 1996)

The explanation of Neal in the brief is informative:

"[ United States Court of Appeals for Sixth Circuit considered
whether defendant corporate officer was a “person” under 26 U.S.C. §7203 (failure to file tax
return)and §7443]."

So without even reading Neal, I can see that this is something that was touched on in another thread. If it is a crime for a person to fail to file a required return, and a corporation is required to file a return, is a corporate officer a "person" who is required to file a return? Obviously the corporate officer is a "person," and the corporation is a "person," but they are not the same person, so under what circumstances can the obligations of the corporation be transferred to a corporate officer?

The reference to "7443" is a typo, because the correct (and later) reference is to 7343, which states that:

"The term 'person' as used in this chapter [Chapter 75, "Crimes, Other Offenses, and Forfeitures"] includes an officer or employee of a corporation, or a member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs."

So, as I've noted before, section 7343 states that the corporate officer who is under a duty to file a return for a corporation is a "person" who is required to file a return, and so can be charged and convicted.

And the government should have the burden of proof in demonstrating that the defendant corporate officer knew that he had a duty to file the tax return in question, and willfully violated that duty.

But that's completely different from the question of whether PH had a duty to file his own income tax return for his own income, and whether he is a "person" for that purpose.

[jg]

I see that they are going to attempt the "I am not a person" argument.

It is the defendant’s position that while he may be a person as that term is commonly understood, he is not a “person” as that term is defined in the relevant provision of the Internal Revenue Code. See, United States v. Neal, 93 F.3d 219 (6th Cir. 1996)

I also find it funny in the use of an appeals court ruling that overturned the district court's dismissal and the district court ruled in the favor of the defendant. :roll:

Although I am not an attorney it does seem strange that United States v. Neal was cited since, as you said, that decision found that the government did in fact have a legal basis for charging the defendant under § 7203, and that the indictment was incorrectly dismissed by the district court.

Also, footnote 3 of United States v. Neal says:

The district court at one point stated:
This opinion of Jasper [352 F.Supp. 254 (D.Del.1972) ] does not even address the issue of requirement to file. It only addresses whether or not the defendant is a person as used in [§ 7203]; and as we have indicated here, it is probable that the definition of a person is fact driven. But the legal obligation or requirement to file the return must be as a result of a legal obligation on the part of the Internal Revenue Code or regulations adopted under it.

That footnote seems to indicate that whether one is a person (and by extension whether one is an employee) is not a question of law but a question of fact. As a layman that would make sense to me.


Further, the indictment ( at http://www.box.net/shared/static/jedrmz07d4.pdf ) appears to only make charges "All in violation of Title 26 United States Code section 7206(1)." unless there was a change to the indictment, or a superceding indictment, no? Or maybe I am missing something of merit?

Again, this is just one man's reading; so your's may vary significantly.

[grixit]

The court accepts the defendant's assertion that he is not a person. It follows therefor, that he must be an animal. But what kind? The court concludes that he is an infectious stray and orders that he be taken to the pound and gassed.

[Nikki]

DoJ response to PH's Motion and Brief: Superseding (SP?) indictment addressing every issue in the Motion, in agonizing detall. Game, set, & match to DoJ.

[LPC]

The court accepts the defendant's assertion that he is not a person. It follows therefor, that he must be an animal. But what kind? The court concludes that he is an infectious stray and orders that he be taken to the pound and gassed.

Good point. PH's motion to dismiss claims that both PH is a "person" for the purpose of the 5th and 6th Amendments to the Constitution, and that he is NOT a "person" for the purpose of IRC section 7206.

Good luck with that.

(Although in a trial once where the critical issue was a conversation between A and B, both now dead, I was able to convince a judge that C's testimony about what A said about the conversation was inadmissible as hearsay, but D's testimony as to what B said about the conversation was admissible as evidence of state of mind.)

[notorial dissent]

I agree, the motion reads exactly like all the rest of PH’s nonsense, and he is still torturing "includes".

I seem to remember pointing out at one point that PH had an idiot for an attorney, now it would appear he has a matched pair, both looking to get sanctioned and have their heads handed back to them.

I therefore repeat my previous comment and expand it to with the addition of the current idiot.

While I will admit they don’t have much to work with, digging their own graves would not seem to be in included in the attorney client relationship, and yet that is what appears to be happening.

[Gregg]

I have long predicted that Pete would rather lose (and say he didn't get a fair trial on HIS issues) than lose by some variation of a Cheek Defense. To win, he has to more or less admit he is wrong, something his ego will not allow, but if he loses he can cry ad infinitum about the injustice of it all.

His attorneys look like they're just polishing up nonsense he writes for them and filing it. Do you really think they might get sanctioned for this?

[wserra]

Do you really think they might get sanctioned for this?

Possible but unlikely.

Earlier in the thread, someone asked if Rule 11 applies to criminal proceedings. Answer: yes, it does, but it's rarely invoked. Judges recognize that criminal defendants have more rights and face more risks than civil litigants, and give lawyers some latitude in taking positions which are clearly wrong but still near and dear to clients' hearts. That latitude does not just stem from good will - judges would rather not have to deal with defendants' claims that their lawyers are not doing what they want. It's easier just to deny a motion. That's what I see happening here.

[LPC]

Not to beat a dead horse but:

Secondly, the indictment charged that the defendant had knowingly and willfully falsely stated that he had received no wages when he had, in fact, received wages, the approximate amount of which was also alleged.3 However, the indictment fails to give any indication that the Grand Jury found probable cause on this essential element of the charge or included this essential element in the charge.

I have no idea what the second sentence is supposed to mean. The indictment starts with the following:

1. Defendant PETER HENDRICKSON was employed by Personnel Management, Inc., in various capacities, including as a purchaser.

2. Defendant PETER HENDRICKSON received wages from Personnel Management, Inc., for his employment. Wages paid to HENDRICKSON were reported to the Internal Revenue Service ("IRS") on Forms W-2 by Personnel Management, Inc. in the amounts of $51,666 in 2000, $53,965 in 2002, $60,608 ins 2003, $62,433 in 2004, $63,310 in 2005, and $20,494 in 2006.

So the indictment states that PH was employed, and he received wages, and states the amounts of the wages.

And the footnote 3 in the first quotation above is interesting:

3 Defendant believes that the approximate amounts stated in the various counts of the indictment are the amounts reported to the IRS through the filing of a w-2 information return.

Defendant "believes"? "Approximate amounts"? The footnote makes me wonder if PH or his lawyers ever even read the indictment.

After going through the usual song and dance about the meaning of "wages," the brief states:

[N]owhere in the indictment is there any indication that the Grand Jury found probable cause that the defendant was an “employee” or in “employment”, and did, in fact, receive “wages”, as those terms are defined in the relevant statutes, after giving due consideration to the definitions within the statutes and to the statutory exceptions. There is no indication that the Grand Jury was properly informed by the Assistant United States Attorney of these essential elements of the offense charged or, indeed, that it did anything other than find probable cause that the defendant was an employee who received wages as those terms are commonly understood. [Footnotes omitted] It is the defendant’s position that although he may have been an employee and may have received wages, as those terms are commonly understood; he was not an “employee” or in “employment”, and he did not receive “wages”, as those terms are defined in the relevant portions of the Internal Revenue Code. That crucial distinction is not recognized by the indictment. The indictment thus fails to include all the elements of the offense charged.

What Hendrickson is arguing is that it is not enough for the Grand Jury to have issued an indictment stating that Hendrickson received wages. According to Hendrickson, the indictment must specifically state that the Grand Jury found probable cause to believe that Hendrickson received "wages" as defined by particular statutes, and that the Grand Jury were instructed on, and considered, all of the possible differences between wages and "wages" before issuing the indictment.

I don't think that's what the law requires. The indictment charges that Hendrickson received wages, and states the years and amounts of wages received and the name of the employer that paid them. And the indictment charges that Hendrickson willfully filed false returns reporting $0 wages. It can't get much clearer or simpler than that. I don't think that the indictment needs to recite the words "probable cause" in each paragraph, or that the indictment needs to recite what instructions were given to the Grand Jury about the law, or that the Grand Jury must consider the defenses that might be raised by the defendant even before the defendant raises them (which is what Hendrickson is demanding).

So I don't think that the government is going to play "The Price is Right" with Hendrickson and take a second guess at what wording might be satisfactory to him in a superseding indictment, but will oppose the motion on the merits. (And will win.)

And, as has been pointed out many times in the past, the definitions of "wages" in the FICA and withholding provisions have nothing to do with the definition of gross income in section 61, so even if Hendrickson could convince a jury that he believed that his Form 4852 correctly reported $0 in "wages," he would still have the problem of convincing a jury that he believed that he was correctly reporting $0 in earned income on his Form 1040.

Finally, Hendrickson's admission that he received wages as "commonly understood" is a good indication of the problems that he faces with his own personal Cheek defense.

[The Operative]

In other words, the indictment does not need to specifically state that the defendant is an idiot.

[Doktor Avalanche]

In other words, the indictment does not need to specifically state that the defendant is an idiot.

Now look who's beating the dead horse.

[.]

It can't get much clearer or simpler than that.

Which is beyond the comprehension of PH. That his lawyers are willing to allow him to regurgitate his rubbish over their signatures is amazing.

They must be sticking it to him for a pretty fair chunk of change to risk sanctions as PH goes down the dusty trail to becoming yet just one more quickly forgotten TP convicted piece of felony toast destined for the Irwin Schiff wing of whatever federal prison.

[wserra]

Please note the phrase "It is the defendant's position" in the two relevant (i.e., frivolous) places - that he is not a "person", and that he is not an "employee" who receives "wages". That's code so the judge understands that this is done at Hendrickson's insistence, and they do not share in this legal "position". Technically, should the lawyers have placed horseshit over their signatures? No, of course not. But every lawyer who has substantial criminal experience has done it, and judges understand and - as I wrote above - would rather write a one-paragraph "Denied. So ordered." than conduct a hearing on ineffective assistance. I don't know this judge, but in front of almost every judge I do know this would not result in even the mentioning of sanctions.

That "almost" is better discussed over a beer.