Bad Strategy, Lack of Preparation, Lack of Counsel, or Just Plain Wrong?
By Bob Hurt, 20 May 2006
Yesterday (Friday, 19 May 2006) district federal court judge Richard A. Lazzara gave Tampa Bay Lawman James Enright a hosing, one that may cost James $172,000. That’s the amount IRS Agent Ashley (an “authorized” pseudonym) claims James owes in unpaid federal income tax. And, by the time the IRS gets through with him, Agent Ashley might claim he owes much more.
Although it did not seem to matter much, except to annoy the judge, James did not appear alone in court. Aside from two family members, 10 other Lawmen (see http://lawmenamerica) showed up to support him. Those twelve occupied the church pews in the gallery. I was one of them. We witnessed the spectacle with some astonishment and chagrin.
James, an entrepreneur, works hard at his job every day. The job apparently provides him with a decent income. For years, James felt convinced that he didn’t owe the IRS a penny because the implementation of a direct, unapportioned tax of individuals violates the constitution. So he stopped filing tax returns in 2000.
Using available information like 1099 forms submitted by others with whom James did business, the IRS calculated that James owed taxes for several years since then. They filed 1040 income tax forms on his behalf. Then they issued an assessment, slapped liens against his name and property, and summonsed him to bring his books and records so they could figure out how to collect the delinquent tax.
James showed up in their office, asked whether the information against him could be used in proceedings intended to deprive him of life, liberty, or property, and when Agent Ashley said it could be, he cited his 5th Amendment right not to incriminate himself, and refused to supply the information they wanted. They must have expected it because the day after the meeting, he received a subpoena to appear in Tampa’s US District Court to testify as to why the judge should not order him to give the IRS the records.
During the IRS’s efforts to get returns from James, James bought the book Cracking the Code from http://losthorizons.com, read it, and did his best to implement its suggestions. Accordingly, he filed his returns, stating zero tax due on them, based on the fact that he did not fit the definition of employee as defined in the IRS code (that is, a government employee or corporate officer), and so does not fall under the code’s definition of “taxpayer.” However, James did not enter those forms into the court record, and he did not bring them to court with him, so as far as the judge was concerned, they did not exist.
James’ defense had been carefully planned in advance:
1. Challenge the court’s and IRS’s territorial jurisdiction based on Article 1 Section 8 Clause 17 of the U.S. Constitution, US Attorney’s Manual section 664, and by U.S. v. Lopez 514 US 549, 115 S.Ct 1624 (1995).
2. Challenge subject matter jurisdiction based on lack of substantive regulation for enforcement provisions of IRS code (Title 26 sections 7402 and 7604) as required by the Administrative Procedures Act and supported by Chrysler v. Brown and State of Ohio DHS v U.S. DHHS.
3. Invoke Fifth Amendment rights – By supplying all the information requested, James would be incriminating himself because it would or could be used in criminal proceedings against him.
4. Move for disqualification of the judge by reason of prejudice.
James was not prepared to argue against the content of the petition itself.
After the Assistant US Attorney (AUSA) claimed the IRS wanted the information in order to collect delinquent tax, the judge asked James to explain why he shouldn’t grant the IRS what it wanted.
James launched into his well-rehearsed arguments. The judge interrupted and said “I will not declare the income tax unconstitutional! This court has territorial, subject matter, and personal jurisdiction, and so does the IRS!” Thus, in one swoop, Lazzara wiped out strategies one and two.
The judge noted that James had invoked the fifth in his pleading, and brought out a case in which another judge had ruled that an in camera inquiry could determine, point by point, whether providing the requested items would tend to incriminate the IRS victim. So, he cleared the courtroom of all but the participants, and conducted the inquiry. When all were allowed to return, the judge ruled that none of the information would incriminate. He ruled that James’ pleadings had no merit. Good-bye strategy three.
James asked the judge to disqualify himself. The judge refused. James said he would appeal. Lazzara pointed out that he was free to do so, but meanwhile, he’d better show up at the IRS office and deliver the information or he’d be found in contempt and the overworked federal marshal would arrest him and throw him in jail. Adios strategy four.
Then he asked James for any other reason why he should not order James to deliver the requested material. James replied that he had submitted his tax returns. Opposing counsel claimed ignorance of them. The judge asked James for copies. James did not have them. The judge asked for any other reasons why he shouldn’t place the order.
Having no other answer, James said no, and Lazzara issued the order accordingly. While others drifted out into the hallway, James went to the front and paid the court reporter $257 for the transcript, then most of us drove to a restaurant for lunch and a postmortem discussion.
James concluded that he should have taken a seasoned attorney to court with him. Others commented at lunch as to what they might have said in response to various remarks by the judge or opposing attorney. Some said he might be able to do something yet to avoid giving up his records. One said he should destroy all records. Another said he should show up with the requested info then ask if any of it could lead to a charge of income tax evasion, and if the answer was yes, to invoke the 5th anew. Several agreed he needed an expert to go over the transcript with a fine-toothed comb so as to glean evidence for the next leg of his defense. One said he should have challenged the AUSA’s contention that he was a taxpayer. Another said he should have demanded to see the IRS agent’s driver’s license so as to ascertain her true identity on the basis that he has the right to know who his accuser is (most IRS agents use a fictitious name to reduce the likelihood that their victims will hunt them down and kill or harass them).
In the end, I wanted to help but was as useful as a blade of grass under cow plop. And I concluded that any such defendant should do the following (but this is not intended to be legal advice):
1. Prepare by intense study of all tax honesty documents available, including those available through sources like the following. You will have to decide for yourself which is most correct in various areas because they differ with each other, and the government is very active at finding ways to defeat every tax honesty argument propounded by the tax honesty movement).
a. Supreme Law Firm (http://supremelaw.org) – see comments below,
b. Lawmen (http://lawmenamerica.com),
c. We The People (http://givemeliberty.org),
d. To Congress (http://tocongress.com),
e. Cracking the Code (http://losthorizons.com),
f. Otto Skinner (http://ottoskinner.com),
g. David Bosset (http://bosset.com),
h. People’s Awareness Coalition (http://pacinlaw.org),
i. Family Guardian (http://famguardian.org).
2. File motions for a jury trial, even for the simplest of hearings that might result in loss of rights, for declaration that all rulings will be based only upon law and facts entered into evidence, not by rumor, and that the court will follow the constitution as the supreme law.
3. Have an expert counsel (not necessary an attorney) sitting along side as a coach
4. Prepare to challenge every possible comment - demand an explanation or justification for everything the opposing counsel or judge says that tends to classify or categorize the defendant, or that presumes anything not entered as fact-based evidence with a corroborating document or testimony of some kind.
5. Rally a support group like the Lawmen.
I believe James stood victim to a “Kangaroo Court”. The judge overreached his constitutional authority, and stomped all over James rights. James was not experienced enough to tear into and defeat the remarks of the judge and opposing counsel. He should have:
• Challenged the identity of the IRS agent
• Challenged the assertion that he was a taxpayer.
• Challenged the judge to show him the proof of jurisdiction by showing how the constitution was wrong.
• Come prepared to explain in detail how the order to reveal his financial records, phone number, business contacts, customers, and so on, constitutes a serious incrimination in violation of his 5th Amendment rights, and more vigorously defended his 5th and 4th Amendment rights (non-incrimination and privacy).
• Entered his tax forms into evidence.
He should have, but he didn’t. He did bravely follow his strategy, and now he can appeal the case. He might discover numerous challengeable points in the transcript that will help him in the appeal.
And if he does show all the requested information to the IRS, they might discover that they overlooked a lot of things, and amend the returns they wrote for him so as to assert that he owes two or three times what they say he owes in delinquent taxes. And because James did not do what he should have done, he faces the horrifying possibility of financial ruin and a career in federal prison. Certainly, if he does not show the IRS his private papers, he faces possible imprisonment under a contempt ruling.
Does James live in 2006, or has he returned to the days of 1750 when King George’s tax collectors invaded hearth and home and pillaged at will?
One citizen at a time, the IRS works to destroy the liberty and fortunes of individual Americans. We must work more furiously and effectively in support groups to educate ourselves and our fellows, and to turn all of our neighbors, families, and friends into activists against the evil and illegal IRS.
We supporting Lawmen did not seem to do much good James’ case, but his case is not over, and we are growing in number and wisdom with each passing week. Let the lessons we are learning from James’ case stimulate us to ever greater action, particularly in recruiting and training more members from our communities.
I learned a lot sitting in that court room, my first time in a federal court. I was sad for James, but scared for myself. Only good luck and the Grace of God have kept me out of his shoes. I know that what happened to him can happen to anybody who enters a court as defendant or “respondent.” And as those of you who’ve followed Mark Adams’ story know, it can happen even to an attorney for a plaintiff.
Bottom line, our judiciary is corrupt from top to bottom. I fear it. So should we all.
That fear should not leave us cowering and quaking in the corner of a dark closet. It must drive us into action to expose and terminate government corruption by whatever lawful means are available to us, lest someday we are driven to be outlaws in defense of our rights.
P.S. I sent a brief summary of the above to Paul Andrew Mitchell (http://supremelaw.org), and he replied. Here’s the interchange:
On 5/19/06, Bob Hurt wrote:
I sat helpless and watched a skilled federal judge skewer the respondent to IRS petition to order respondent to show books and records for collection.
Judge trounced over all jurisdiction and 5th amendment issues, and determined from in camera interview that nothing in the info requested would incriminate the Respondent. J said R ought to have had a lawyer, and ruled R better show up at IRS office with requested records.
I suggested he talk to an attorney, as Dave Bosset's approach wasn't followed well because of pressure.
I mentioned you. Somebody else mentioned Joe Izen.
Does this case interest you?
Paul Andrew Mitchell answered:
The judge can order the respondent to appear with books and records, but the judge cannot compel the respondent to be a witness against himself, nor can the judge compel the respondent to surrender his books and records in violation of the Fourth Amendment.
Therefore, at the IRS summons hearing, respondent should appear with his books and records, but should then take the Fifth in response to every single question, e.g.:
Q: What is your name, please?
A: I decline to answer that question, because I cannot be compelled to be a witness against myself.
Q: Stand up, raise your right hand, and repeat after me.
A: I have not been ordered to be sworn in, and I cannot be compelled to be a witness against myself.
This is the proper way to invoke the Fifth Amendment.
The basic issue here is the Fourth Amendment, in point of Law, however. See this winning brief here, for detailed authorities:
Also, do investigate the judge to make sure he has all 4 of the credentials required of every federal judge: e.g. Clerk of Court must have legal custody of his APPOINTMENT AFFIDAVIT, pursuant to 5 U.S.C. 2906, 3331:
http://www.supremelaw.org/rsrc/commissions/index.htm (database of missing credentials statewide California).
Joe Izen didn't do much for Lynne Meredith, now did he? See BOP's Inmate Locator, and search for "Bonita Lynne Meredith #24001-112"
The worst that can happen is that the respondent is ordered so show cause why he should not be held in contempt: in reply, he will state under duress that he attempted to comply by appearing with books and records, but he properly and timely invoked his fundamental Rights not to be a witness against himself, and to privacy of his books and records.
Meanwhile, he should have submitted a proper FOIA request to DOJ for the judge's COMMISSION, which should be in DOJ's custody (see cites above). And, that FOIA request should be entered into evidence in his court record, by way of Rule 201(d) of the Federal Rules of Evidence.
FOIA requests raise a federal cause of action, and the judge is necessarily a material witness to the existence, or absence, of his required credentials; therefore, he cannot preside on any hearing(s) to compel their disclosure. 28 U.S.C. 455.
If the "robe" turns up withOUT any one of the 4 required credentials, he should be formally charged with impersonation for violating 18 U.S.C. 912:
http://www4.law.cornell.edu/uscode/18/912.html (a federal felony).
See also 18 U.S.C. 4, which creates a legal obligation to report such a felony.
Such impersonation necessarily implicates mail fraud too, so another remedy is to sue this impostor in State Court using Civil RICO remedies at 18 U.S.C. 1964:
(all opposing party(s) fell totally silent in all cases)
/s/ Paul Andrew Mitchell, B.A., M.S.
Private Attorney General, Criminal Investigator and
Federal Witness: 18 U.S.C. 1510, 1512-13, 1964(a)
All Rights Reserved without Prejudice
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