Latest in Hendrickson's criminal trial

[Demosthenes]

In the 5th, United States v. Rice, 659 F.2d 524

Finally, Rice contends that he is not a "person" required to file an income tax return by 26 U.S.C. § 7203, for violation of which he was convicted. He points out that 26 U.S.C. § 7343 provides that a "person", for such purposes, "includes an officer or employee of a corporation, or a member or employee of a partnership" (emphasis supplied) who has the duty to file such a return. In a nigh frivolous non-sequitur, Rice concludes from the statutory language that "obviously, Section 7343 does not include the term "natural person' ". Def. brief, p. 25. Perhaps so. Even more obviously, however, the statutory provision was not intended to exclude individual or to limit the ordinary meaning of the term "person" so as to exclude individuals or "natural persons", in counsel's phrase, from their responsibility to [**11] comply with the tax laws.

[grixit]

Wow. While I would still bet against sanctions, these idiots are doing their best to prove me wrong.

PH's puppets are setting the bar so low that even Stilley and Springer can't fit under it.

Just to be sure, how about a limbo contest?

[LPC]

PH's puppets have filed their 3rd Motion to Dismiss the Indictment today.

This Motion and accompanying brief focuses solely on the argument that PH is not a "person" and the "includes" argument.

There's a very strange (to non-lawyers) rule of professional conduct, ABA Model Rule of Professional Conduct Rule 3.3 ("Candor Toward The Tribunal"), which states in subsection (a) that "A lawyer shall not knowingly: ... (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel...."

As others have pointed out, there are several cases that have held that the "includes" in section 7343 does not exclude anyone otherwise within the meaning of "person."

And the motion filed by Hendrickson's lawyers failed to make any mention whatsoever of IRC section 7701(c), which is clearly "legal authority" that is "directly adverse to the position of the client."

So the lawyers' only defense against disbarment (or other disciplinary sanctions) are that (a) they were too stupid and ill-prepared to have "known" of any cases or statutes directly adverse to their client's positions, or (b) the statutes and case adverse to their clients' positions were not "not disclosed by opposing counsel" because opposing counsel had not yet had a chance to respond.

If I were the US Attorney, I would be sorely tempted to play a game of ethical chicken and respond without citing any of the "legal authority" that is "directly adverse to the position of the client" just to see if PH's lawyers come clean, or if they are as ignorant or unethical as I think they are.

[Judge Roy Bean]

...

If I were the US Attorney, I would be sorely tempted to play a game of ethical chicken and respond without citing any of the "legal authority" that is "directly adverse to the position of the client" just to see if PH's lawyers come clean, or if they are as ignorant or unethical as I think they are.

IMHO, the issue is outside the case; counsel have put themselves in an untenable situation in regard to professional misconduct.

"Gee, guys I didn't know fer sure," don't cut it with me even after the client has been put away.

[Gregg]

So, if Pete wins on this point, should we all be expecting a bigger refund than we thought?

I'm gonna go get my Yacht brochures out!

[notorial dissent]

So, in other words, I'm not the only one who thinks both past and current council are idiots, in search of new career opportunities!!

[Famspear]

There's a very strange (to non-lawyers) rule of professional conduct, ABA Model Rule of Professional Conduct Rule 3.3 ("Candor Toward The Tribunal"), which states in subsection (a) that "A lawyer shall not knowingly: ... (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel...."

I was also thinking about that one. I'm puzzled as to how Hendrickson's lawyers have managed to (apparently) expose themselves in this way.

Digression: I'm not saying this applies to Hendrickson's lawyers, but this reminds me of something the law professor in one of my federal tax classes said one day. It went something like this (paraphrase):

There will come a time in your career when either you might go to jail, or your client might go to jail. Make sure it's your client, and not you.

Clients do sometimes ask attorneys to do things that attorneys cannot do without breaking a rule. What my law professor meant was (1) that you must never become so attached to your client that you fail to recognize the thin line between zealous representation and breaking the rules, and (2) you must remember that (contrary to what some may believe) zealous representation is NOT the first duty on the list of an attorney's duties (it's high up there, but it's not first).

I would argue that if your client insists on involving you in conduct that might put either the client or you (or both) in jail (after you have made a reasonable effort to make clear to the client that the client should refrain from that conduct), you should consider withdrawing.

Back to Hendrickson's lawyers: Based on my understanding and the above comments of Quatloosians who are much more knowledgeable about this area than I am, I would hope Hendrickson's lawyers would be more careful from now on, for their own sake.

[wserra]

I would argue that if your client insists on involving you in conduct that might put either the client or you (or both) in jail (after you have made a reasonable effort to make clear to the client that the client should refrain from that conduct), you should consider withdrawing.

I think few sane lawyers would disagree with that statement. It is, however, not the present situation. No one here is talking about conduct that could send lawyer or client to jail. We are talking about arguably violating two ethical proscriptions: taking positions which have no support in law and failing to disclose directly adverse authority. No-nos, sure, but not crimes.

I repeat what I said above: every lawyer who has had a substantial criminal practice has been here, and every judge who presides over a criminal docket has seen it (not to mention perhaps having personally faced it while practicing). In an ivory tower (or a llama pen), it's very nice to condemn it. But, in my experience, most judges would prefer a stupid motion to which they can write "Denied" and move on to either a Faretta application, a motion to withdraw or an ineffective assistance motion (all of which only postpone the problem).

[Dezcad]

And the motion filed by Hendrickson's lawyers failed to make any mention whatsoever of IRC section 7701(c), which is clearly "legal authority" that is "directly adverse to the position of the client."

While I totally agree that PH's puppets have failed to disclose any of the adverse authority (some of which was the case law posted above by Demo), they DID mention 7701(c) and made a very feeble attempt to explain it away. From the brief:

The rule of construction for the term “includes” is slightly modified because of this
additional content of §7701(c):

“Includes and including: The terms ‘includes’ and ‘including’ when used in a
definition contained in this title shall not be deemed to exclude other things
otherwise within the meaning of the term defined.” 26 U.S.C. §7701(c).

In other words, when used as part of the definition of another term, “includes” assists in
the creation of a class to which that other term will apply.

In examining the convoluted terminology of the Income Tax Act, the United States
Supreme Court noted the following:

“[T] the verb ‘includes’ imports a general class, some of whose particular
instances are those specified in the definition. This view finds support in...the
Act, which reads: ‘Terms’, ‘includes,’ and ‘including’, when used in a definition
contained in this title, shall not be deemed to exclude other things otherwise
within the meaning of the term defined’.” Helvering v Morgan’s Inc., 293 U.S.
121, 125 fn. 1 (1934).

The United States Supreme Court reiterated this rule of construction in Federal Land
Bank v Bismarck Company, 314 U.S. 95, 100, 62 S. Ct. 1 (1941) “We...point out that the term
“including” is not one of all-embracing definitions, but connotes simply an illustrative
application of the general principle.”

Of course, neither Helvering nor Federal Land Bank lend any support to their argument.

And I agree that failure to disclose case law adverse to their position is a breach of their ethical duties.

[LPC]

they DID mention 7701(c) and made a very feeble attempt to explain it away.

Oops. Missed that.

[Dezcad]

All pending motions will be heard next week.

05/08/2009 31 ORDER TO RESPOND as to Peter Hendrickson. ( Responses due by 5/13/2009, Motion Hearing set for 5/14/2009 03:00 PM before District Judge Gerald E Rosen) Signed by District Judge Gerald E Rosen. (RBri) (Entered: 05/08/2009)

[Gregg]

I have just belatedly read the motions to dismiss the indictments Pete had his attorney's file. I can only think these were written by Pete and he had them file them, not in the hope that the court wouldn't bust out laughing at them, but more to impress the crackheads at how he's fighting the man. He's setting it up so he can say he was railroaded, because the evil corrupt judges wouldn't let him present the law. You heard it here first.

[Dezcad]

All pending motions will be heard next week.

05/08/2009 31 ORDER TO RESPOND as to Peter Hendrickson. ( Responses due by 5/13/2009, Motion Hearing set for 5/14/2009 03:00 PM before District Judge Gerald E Rosen) Signed by District Judge Gerald E Rosen. (RBri) (Entered: 05/08/2009)

The Government's responses to PH puppets' Motions are here, here, here, and here.

Hearing is tomorrow.

[Judge Roy Bean]

Our tax dollars at work.

I don't envy the USA's on these cases, although it does let them explore a kind of lunacy they may not have seen before. I can envision what it must be like to sit in a conference room or in someone's office reading the drivel and having to decide which victim in the office has to draft the response.

More and more I'm beginning to develop a sense that the Internet has bastardized the concept of the pro se litigant to the degree that rules should be promulgated to preclude pro se propoundment of preposterous positions prior to petition.

[ASITStands]

All pending motions will be heard next week.

05/08/2009 31 ORDER TO RESPOND as to Peter Hendrickson. ( Responses due by 5/13/2009, Motion Hearing set for 5/14/2009 03:00 PM before District Judge Gerald E Rosen) Signed by District Judge Gerald E Rosen. (RBri) (Entered: 05/08/2009)

The Government's responses to PH puppets' Motions are here, here, here, and here.

Hearing is tomorrow.

Wonder if the responses will be posted by 'ForumAdmin' on Lost Horizons? Nah!

And, still no Petition for Certiorari! Today or tomorrow is the last day.

EDIT: And, thanks for the copies of the responses.

[Dezcad]

.... promulgated to preclude pro se propoundment of preposterous positions prior to petition.

Precisely.

[LPC]

I don't envy the USA's on these cases, although it does let them explore a kind of lunacy they may not have seen before.

Reading the government responses, I think that they were definitely hobbled by their literacy and sanity.

When responding to this kind of gibberish, they really need to get in touch with their inner lunatic.

Or perhaps the DoJ should have a special response team for crazies, and kind of legal "ghostbusters" team that can argue the abnormal?

As far as the "no allegation of person" argument goes, it would have been interesting for the government to respond by pointing out that criminal laws in general apply only to people, and that prosecutions of horses, trees, or fire hydrants are rare (to say the least). The fact that Hendrickson has been able to hire a lawyer and respond to the indictment is therefore an admission that he is, indeed, a person. (I like to present things that tax deniers do as "admissions" because it drives them crazy. Perhaps if we can convince them that almost everything they do is an admission of some sort, they will go catatonic as a defense.)

[Dezcad]

Today's hearing could be very interesting and I wish I could be there.

I'm wondering if PH will even show up for the hearing or if only his puppet(s) will. If, as we suspect, the Motions were primarily drafted by PH, which puppet will argue those Motions at today's hearing and does either puppet really understand or believe the arguments presented in the Motions.

Also, if PH does attend, how can he handle not being able to argue the motions since he is represented by counsel.

My guess is that PH doesn't attend, all the Motions get denied, and PH claims victory!

[cynicalflyer]

Footnote 2 from GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION TO DISMISS INDICTMENT FOR ALLEGED VIOLATIONS OF THE FEDERAL RULES OF CRIMINAL PROCEDURE AND THE FIFTH AND SIXTH AMENDMENTS TO THE CONSTITUTION struck me (emphasis added):

For example, defendant contends that the Indictment was deficient in that it failed to
include an allegation, or indicate that the Grand Jury found probable cause, that he was an “employee” for purposes of 26 U.S.C. § 3401(c). See Motion pp. 11-12. The Indictment need
not include such an allegation nor must the proof at trial be in accordance with the defendant’s twisted interpretation of 26 U.S.C. § 3401(c). See, e.g., United States v. Latham, 754 F.2d 747, 750 (7th Cir. 1985)(“Latham’s instruction which indicated that under 26 U.S.C. § 3401(c) the category of “employee” does not include privately employed wage earners is a preposterous reading of the statute. It is obvious that within the context of both statutes [26 U.S.C. § 3401(c) and 26 U.S.C. § 7343] the word “includes” is a term of enlargement not of limitation, and the reference to certain entities or categories is not intended to exclude all others.”).

Preparing in advance to get anything concerning Pete's wacky world definitions prohibited from trial. That's some good lawyering.

[Dezcad]

Docket result from yesterday's hearing:

05/14/2009 Minute Entry for proceedings held before District Judge Gerald E Rosen: Motion Hearing held on 5/14/2009 re 29 MOTION to Dismiss Indictment, 16 Renewed MOTION for Discovery Renewed and Clarified Motion for Notice of 404(b) Evidence, 27 MOTION to Dismiss Indictment for Violation of Rule 7 and Rule 12(b), Federal Rules of Criminal Procedure and the Fifth and Sixth Amendments to the United States Constitution, 18 MOTION to Dismiss Motion to Dismiss Indictment, 28 MOTION for Disclosure of Grand Jury Material Pursuant to Rule 6(e)(3)(E)(i)and(ii), 30 MOTION for Discovery filed by Peter Hendrickson. Disposition: Taken Under Advisement(Court Reporter: Rene Twedt) (Defendant Attorney: Lyle D. Russell, Jr, M. Ellen Dennis) (AUSA: Michael Leibson) (RBri) (Entered: 05/15/2009)

(bolding added)