Jury instructions and Motion in Limine

by Larken Rose

I just received the government's proposed jury instructions in our case, and there are really just a few relatively minor changes in wording or explanation I would request.

[Worthy] of note, though, is that for once they got the concept of "willfulness" right. It's actually pretty much just a cut and paste from the Department of Justice's manual on tax prosecutions (not that there's anything wrong with that), and it happens to be almost exactly the instructions we were going to ask for regarding "willfulness." Keep in mind, this is part of what the GOVERNMENT is asking the judge to tell the jury, once all the evidence has been heard.

Suggested jury instructions:

"The term 'willfully' used in connection with the failure, by a taxpayer to file a tax return, means a voluntary, intentional violation of a known legal duty. In other words, the defendant must have acted voluntarily and intentionally and with the specific intent to do something he knew the law prohibited, that is to say, with the specific intent either to disobey or to disregard the law."

"A defendant's conduct is not 'willful' if he or she acted through negligence, even gross negligence, inadvertence, accident, or mistake, or due to a good-faith misunderstanding of the requirements of the law. However, mere disagreement with the law in and of itself does not constitute a good-faith misunderstanding of the requirements of the law, because it is the duty of all persons to obey the law whether or not they agree with it."

"Also, a person's belief that the tax laws violate his constitutional rights or a person's disagreement with the government's monetary system and policies do not constitute a good-faith misunderstanding of the requirements of the law. However, if a defendant had a subjective good-faith belief, no matter how unreasonable, that the law did not require him to file a tax return or to pay federal income taxes, he did not act 'willfully.'"

"A good-faith misunderstanding of the requirements of the law can be based upon information given a person from other individuals, a person's interpretation of case law, meaning court cases, as well as statutes and regulations, no matter how unreasonable a person's interpretation seems to you. But, a person must actually have this belief, mistaken or not, in order to qualify for the good-faith defense, which is a complete defense to the charges of tax evasion and failure to file. Although a defendant can hold a good-faith belief which is objectively unreasonable, in determining whether defendant acted in good-faith, you may consider as one factor among many the reasonableness of defendant's stated beliefs."

"Ordinarily, there is no way that a defendant's state of mind can be proved directly, because no one can read another person's mind to tell what that person is thinking. But a defendant's state of mind can be proved indirectly from the surrounding circumstances. This includes things like what the defendant said, what the defendant did, how the defendant acted, and any other facts or circumstances in evidence that show what was in the defendant's mind."
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No, I didn't write that, though it happens to be almost exactly what I had written as suggested jury instructions . . . but now I won't even suggest anything further on "willfulness," because theirs is complete and proper and based on what the Supreme Court said in the Cheek, Pomponio, and Bishop cases, about "willfulness." Really, there's nothing debatable about the above; it's settled law. But I must give credit to them for STATING it in their own suggested jury instructions.

Now how they think they have a prayer of PROVING that we acted "willfully" is another story. Notice that in their last paragraph, they admit that what we DID, and SAID, etc., are what the jury is supposed to consider to determine whether we BELIEVE we were in compliance with the law. And boy do we have some stuff to show them about that . . .

[Later that day, Larken received a piece of mail from the government . . .]

It was a Motion in Limine (which I was waiting for), in which the government asks the court to decide what should and should not be allowed to be brought up at trial. I won't give the details, because in a few days I'll be posting their motion and my response, but here is the funny/sad part:

They acknowledge that we have a right to show that we did what we believe the law requires . . . they just don't want us to be allowed to show the jury ANY section of the statutes or regulations . . . or QUOTE from any section . . . or show them my "Taxable Income" report . . . or the Theft By Deception video.

Feel free to be amazed, but don't be scared. This isn't a surprise at all, and about 80 percent of my rebuttal has been sitting here for weeks, waiting to be completed once I got their looney motion, which I knew was coming. "Sure, you can show what you believed . . . as long as you don't say anything about the law." Interesting view of "justice" they have.

There will be a hearing (in court) about these motions, about what will and won't be allowed to be addressed at trial, on June 30. It will very likely be the most interesting hearing yet in our case, and it will be in open court (open to the public). So if you can be in Philadelphia on June 30, it should be quite entertaining. (I'll give more details later.)

larken@taxableincome.net
http://www.861.info
http://www.theft-by-deception.com

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(The following comments are mine, not Larken's.)

Try to reconcile these two statements from the suggested jury instructions:

1. " . . . if a defendant had a subjective good-faith belief, no matter how unreasonable, that the law did not require him to file a tax return or to pay federal income taxes, he did not act 'willfully.'"

2. "Although a defendant can hold a good-faith belief which is objectively unreasonable, in determining whether defendant acted in good-faith, you may consider as one factor among many the reasonableness of defendant's stated beliefs."

The first statement exonerates someone who sincerely holds "unreasonable" beliefs, and the second statement permits the evaluation of reasonableness to determine the sincerity of the defendant. This is how a juror may be led to conclude, "Because the belief seems unreasonable to me, he couldn't have been sincere in his belief."

Compounding that error is the following restriction placed on the defendant:

"They acknowledge that we have a right to show that we did what we believe the law requires . . . they just don't want us to be allowed to show the jury ANY section of the statutes or regulations . . . or QUOTE from any section . . . or show them my 'Taxable Income' report . . . or the Theft By Deception video."

How is a juror to judge the reasonableness of a defendant's beliefs without hearing the logic? They cannot. All a juror can do is compare the defendant's conclusion with what the juror assumes is correct. Reading the law and coming to a reasonable conclusion, step by step, like any reasonable person allows the defendant to present a very strong case for his beliefs and removes any possibility of willfulness. The bases for beliefs are integral to the case, and if the defendant is precluded from presenting them, at least the jury should be made very aware that the government is severely damaging his right to defend himself properly. He should object strenuously, and jurors should object as well.

A good argument for such a restriction might be made if the defendant were attempting to put the law on trial, but that is not the case. The single issue from day one has been that applicable law has been ignored by the government. It is incumbent on the defendant to tell the jury what he has learned from reading the law, no matter how painful it may be for the government to hear. The defendant has a right to present relevant evidence. It is intolerable to shrug off a defective trial just because it affords the defendant grounds for appeal.

A judge may soothe his conscience about conducting defective trials with the thought that such trials are appealable. But the practical reality in America is that appeals are available only to those who can afford them and to those who can't afford anything, and conditions preceding the appeal are punitive. Richard Simkanin is appealing his tax-related conviction at the hands of a rogue US District Court judge in Texas, but he is doing so from a federal prison even though he is a peaceful, elderly family man who is no threat to anyone. After years in prison and tens of thousands of dollars of expenses, an honest appeals court judge will reverse the flawed lower court decision, but justice will not have been served--not by a long shot.

Larken and Tessa Rose--like every American--expect and deserve justice in trial court.

Mark Yannone