1-10-04
129 Years For Asking to See The Law
Perfectly Illegal:
Non-Withholding Employer Simkanin
Convicted in Rigged Trial
There
is no doubt: Dick Simkanin was illegally convicted. The law cannot be used,
or more appropriately, abused -- to penalize the citizens of this
nation for failing to do something that NO specific law obligates them to
do.
Dick
Simkanin studied the details of the U.S. tax laws, he repeatedly asked the
government to “show him the law” and when it refused – he acted upon the
words and letter of the written law.
With the law as the only significant issue of contention before the
court, and with defendant Simkanin facing a sentence for his life in federal
prison, USDC Judge John McBryde, in direct violation of Simkanin's due
process Rights, prevented him and his legal counsel from presenting ANY
substantive defense based upon on the actual written laws of this nation.
McBryde simultaneously denied the jurors their unalienable Right to exercise
their discretion and judgment regarding the proper application of the law as
it applied to business owner Simkanin.
In the
end, twelve women and men of
Fort Worth,
through their own misperceptions of the law, ignorance of our constitutional
system of justice, and the unlawful manipulation of the trial by a
tyrannical judge, unwittingly aided and abetted the unlawful prosecution and
conviction of defendant Dick Simkanin.
These Texas jurors unknowingly conspired with a corrupt government intent on
imprisoning Simkanin as a political prisoner and making him the federal
“poster child” for any American that dares ask, “What specific U.S. law
requires me to file, pay or withhold?”
Although tragic, the long and heroic story of Dick Simkanin is continuing.
With our help and commitment, he will overcome this judicial farce and
justice will ultimately prevail.
Although tragic, his trial was instructive. In that Fort Worth courtroom, we
stared into the eyes of the despots and witnessed firsthand, the corruption
and fear of a police state, dependent solely on an unsustainable illusion
for the continuation of its existence, -- a vast deception upon our People
that withers further and further each day.
We saw
the power of the truth and heard men of honor and integrity testify for the
defense. Unfortunately, we also saw the staggering (and pathetic extent) to
which those that “guard” the public trust will go to contain the truth in
their flailing to delay the demise of the income tax fraud.
We experienced the raw, vicious abuse of the Peoples’ delegated powers. We
observed firsthand, a “trial” that until recently, could have only occurred
behind the Iron Curtain or in Communist China.
With the definition of our problem more clearly defined than ever, the
solution is now likewise, more clearly perceived -- and hopefully – within
our grasp.
Take
another
look at a
U.S. Senate letter
we posted to this column in July, 1999, from Hawaii Senator Inouye to one of
his constituents, a tax consultant.
This
official letter says it all: First it establishes that there is NO
provision in the law that specifically requires citizens to file and pay
income taxes, but then goes on to state that the IRS regulations set
forth "penalties" for failure to pay, what must therefore by the written
law, be a “voluntary” “tax”.
Incredulous? Yes. According to a U.S. Senator and the IRS regulations,
citizens can (& will) be penalized for not filing, collecting and paying to
our servant government the so-called “income tax”, even though there is
NO provision in U.S. law which specifically, and unequivocally, requires an
individual to pay income taxes.
This is nonsense.
We are a free people and the government is our servant.
It may
not happen tomorrow, but these errant servants will shortly be held
directly, and personally accountable for the mayhem, mischief and damage
they have done to our once-great Republic.
We
will say it again: under the circumstances we are faced with, it is now
un-American to further encourage our government or facilitate the abuse of
our People by sending it any money.
As you
read this article, consider who are the real enemies of freedom and pose the
real threats to our Republic and our liberty. Remember, it is the true
patriot who rises to protect his country and his freedom from the most
insidious and dangerous menace that can exist – his own government.
Day Two
of Simkanin’s Trial
Tuesday, January 6, 2004 was Day Two of Dick Simkanin’s trial on 12 counts
of Willful Failure to Withhold (a felony under 26 USC 7202), 15 counts of
False or Fraudulent Claims For Refunds (a felony under 18 USC 287) and 4
counts of Willful Failure to File a Tax Return (a misdemeanor under 26 USC
7203).
Simkanin was examined and cross-examined for most of the morning. Then
Simkanin’s attorney, Arch McColl, spent an hour or more arguing with Judge
McBryde and the DOJ attorney (David Lee Jarvis) to allow certain people to
take the stand as defense witnesses. Among those finally allowed to testify
on Simkanin’s behalf were Joe Banister, John Stadtmiller, attorney Ed
Rivera, Larkin Rose and WTP Chairman Bob Schulz. Victoria Osborn and John
Kotmair were among those who were kept from testifying.
Throughout the day, Judge McBryde was as tyrannical as he was the day
before.
For
instance, when Simkanin produced a letter from the Social Security
Administration as his proof that Social Security was voluntary, McBryde told
the jury to disregard Simkanin’s proof because he (McBryde) knew Social
Security was mandatory. Whenever Simkanin attempted to quote the taxing
provisions of the Constitution or what he had learned during his study of
the internal revenue laws, the judge cut him off saying, “I’ll decide what
the law is.”
In
effect, McBryde denied Simkanin the ability to defend himself. The law IS
the controversy be fore the court. The law was Simkanin’s defense. The law
requiring Simkanin’s company to withhold was NEVER identified either in the
indictment or during the trial. Later, when, on its own, the jury asked to
see the law, the Judge said, in effect, “Trust me, its there, you don’t need
to concern yourself with that fact.”
Closing arguments were then heard. At about 4 PM the jury retired to the
jury room to deliberate the fate of Dick Simkanin.
At
about 5 PM, the jury sent its first note to the judge, asking for a
definition of the word “willful.” Rather than use the definition provided by
the U.S. Supreme Court or by the 5th Circuit Court of Appeals,
Judge McBryde provided the jury with his own definition of “willful,” which
definition was designed to convict Dick Simkanin.
The
jury retired for the evening without reaching a verdict.
Day Three:
Directed Verdict Convicts Simkanin
First
thing Wednesday morning, January 7, 2004, the jury sent a second note to the
judge, asking for the law that Dick Simkanin violated when he stopped
withholding.
The
judge responded with a reading of Section 7202, which is what the indictment
charged Simkanin with. 7202 is merely a penalty statute. It reads, “Any
person required under this title to collect, account for, and pay over any
tax imposed by this title who willfully fails to collect or truthfully
account for and pay over such tax, shall, in addition to other penalties
provided by law, be guilty of a felony and upon conviction thereof, shall be
fined not more than $10,000, or imprisoned not more than five years, or
both, together with the costs of prosecution.” 7202 does not say who is
“required” to collect, account for or pay over any tax imposed by the
Internal Revenue Code.
Therefore, the jury sent another note to the judge which: 1) told the judge
the prosecution provided NO proof that Simkanin was required to withhold:
and 2) asked the judge if the jury had to wade through all 7000 pages of the
Internal Revenue Code to find the proof that Simkanin was required to
withhold. McBryde told the jury that the court had made a determination that
Simkanin was required to withhold and that the jury did not have to concern
itself with the evidence of that fact.
By
these answers, McBryde obviously, and improperly -- directed a guilty
verdict.
It was
now up to the jury (if it was fully aware of its Rights) to determine
Simkanin’s guilt or innocence, based on the facts and the law.
What
happened next was tragic. After allowing McBryde to give a definition of
“willful” without requiring McBryde to cite the legal source of that
definition, and after failing to insist that McBryde identify the statute
that required Simkanin to withhold (rather than accepting McBryde’s “trust
me” response), and after allowing McBryde to decide the key issue of fact
regarding the proof of such a law, the jury returned a verdict of guilty on
29 of the 31 counts.
Around
8:30 PM, the jury found Simkanin guilty on counts 3-31 of the indictment.
The jury could not reach a verdict on the first two felony counts of the
indictment, relating to the first two years that he stopped withholding.
Sentencing has been set for April 30, 2004.
The potential sentence
could run 129 years.
Court
Records
To
access the indictments, and copies of all the legal documents and court
orders entered in the record of Simkanin’s case: http://www.arrowplastics.net/criminal
Some
Observations
Dick
Simkanin’s trial was the first criminal we have sat through and witnessed
first hand. In addition, Dick’s trial was the first time we have worked with
a legal team as it prepared for and conducted a defense. We have now
experienced what so many people familiar with trials involving charges of
“willful failure to collect” and “willful failure to file” have been
complaining about: due process and unalienable Rights are scarce, indeed, if
the matter involves taxes.
The
following are but a few of the observations we came away with:
The
highest ranking “Justice” Department official in that part of the country,
the U.S. Attorney (Roper), with close ties to Attorney General Ashcroft and
the DOJ in Washington, DC, reflected a heightened state of interest in the
outcome of this case, as he sat with the prosecution team during most of the
trial.
Simkanin’s defense rested on his good faith, exhaustive effort to find what
the internal revenue laws required of him as an individual tax payer and as
the owner of a company. Yet, he was not allowed to discuss the results of
his multi-year investigation. The law he is alleged to have violated by
allowing his workers to receive all of their earning and by ending his habit
of filing a personal tax return does not appear anywhere on his indictment,
or in the entire record of his trial, in the instructions to the jury, in
response to the insightful questions from the jury or on the jury’s verdict
sheet.
By not
allowing such evidence into the courtroom, Judge McBryde denied the Right of
Dick Simkanin to defend himself, even though it is well settled in American
jurisprudence that a defendant has a Right to formulate his defense, no
matter how irrational the defendant’s legal theories.
Dick
Simkanin’s defense was what he learned during his 3-4 year study of the
internal revenue laws. His defense is what the constitution prohibits and
authorizes and what the law says and does not say. By not allowing Dick or
his attorney to provide proof of what the law says or doesn’t say Dick was
denied the ability to defend himself. Dick and his lawyer were muzzled by
the Roper-Jarvis-McBryde tag team, demonstrating yet again that the
Judiciary and the “Justice” Department are highly politicized and very
corrupt.
At
best, the judiciary was cooperating with the executive in a collective
decision to deny Dick certain constitutionally guaranteed Rights.
The
members of the jury knew the right questions to ask the judge, but they did
not know their Rights.
Arch
McColl and the rest of his legal team are to be highly commended for their
work. They worked very well together under extraordinarily difficult
circumstances. The whole was definitely greater than the sum of the parts.
There was a synergism seldom seen among any group of people on a critical,
action-oriented mission. I was particularly impressed with the speed and
intelligence with which they recognized the need for and then produced added
motions, arguments and evidence. They operated well beyond the call of duty,
with a never-give-up attitude that was laudable. They all showed great heart
and integrity.
Arch
McColl’s overall legal strategy (good faith defense) and his strategy to get
around the intense opposition from the DOJ and the Judge to allow Dick’s
witnesses to testify on the record were excellent. His demeanor under
hostile fire from the bench and threat of sanctions, his persistence and
degree of aggressiveness to get critical evidence into the
record
were particularly worthy of commendation. He may have lacked subject matter
expertise going in but he was a quick study. That, coupled with his obvious
litigation expertise (27 years) as a criminal defense trial lawyer, and his
never-ending awareness of what was going to help on appeal, put him and Dick
in as good a position as could be hoped for under the conditions of the
tyranny of the court and a feeble jury.
The
People are indebted to Arch McColl and his team for their professionalism
and stoutheartedness.
There
were about 100 people who filled the courtroom, waited in the hallway during
the length of the trial and stood outside the courthouse in 20 degree
weather holding signs and banners. We noted people there from Hawaii, South
Dakota, New Jersey, Florida, New Mexico, Colorado, California, Arkansas,
Arizona, Maryland and other states. We should all be proud of and thankful
for the people who were there in support of Dick Simkanin. To a person, they
were all courteous, respectful and in total control of their emotions at all
times as they witnessed the abusive behavior of the government employees in
and out of the courtroom: the judge, the prosecuting attorneys, the IRS
witnesses and the scores of security personnel. Never have we witnessed so
many firearms, badges, black uniforms, security vehicles, walkie-talkies and
ear pieces in one place.
Talk
about intimidation! To the best of our knowledge, no one in the tax honesty
movement has ever given the government reason to believe we are anything but
rational, intelligent, professional, non-violent and respectful in all that
we do as we go about the business of getting the government to answer our
questions. However, Judge McBryde did publicly refer to us as a “cult,”
suggesting, without provocation, but designed to salt public opinion, that
we were crackpots and malcontents capable of violent acts. Nothing could be
further from the truth.
Jury
Notes and Instructions
During
its deliberations, the jury sent four important questions out to Judge
McBryde.
First
they asked for a definition of “willful.” Judge McBryde gave the jury his
own (faulty and misleading) definition, which was designed to convict
Simkanin, rather than the definition provided by the U.S. Supreme Court in
the Cheek decision, or the 5th Circuit Court of Appeals
(McBryde operates within the 5th Circuit), both of which held
that a person could not be convicted for willful failure to file if
the person undertook a good faith effort to find out what was required of
him and developed a good faith belief that he was not required to file, no
matter how irrational the basis of the belief.
Click here to read the jury’s first note to judge McBryde and McBryde’s answer.
Click here to read what the U.S. Supreme Court said about
“willfulness.”
Click here to read what the 5th
Circuit has said about “willfulness.”
It is
safe to assume that based on McBryde’s false definition of “willful,” and
the rest of McBryde’s instructions to the jury, someone on the jury
convinced the others that they had to find Dick Simkanin guilty on counts
28-31 (willful failure to file a tax return).
Next,
the jury asked to see the law that Dick Simkanin violated by failing to
withhold. The judge merely quoted 26 USC 7202, which is not a charging
statute but merely a penalty statute that reads, “Any person
required under this title to collect, account for, and pay over any tax
imposed by this title who willfully fails to collect or truthfully account
for and pay over such tax, shall, in addition to other penalties provided by
law, be guilty of a felony and upon conviction thereof, shall be fined not
more than $10,000, or imprisoned not more than five years, or both, together
with the costs of prosecution.”
Again,
Section 7202 does not identify who is “required” to collect, account for
or pay over any tax imposed by the Internal Revenue Code.
So,
instead of reciting a law that required Dick Simkanin to withhold, McBryde
recited the punishment to be applied to someone who was required to
withhold but did not.
Click here to read the jury’s second note to McBryde and
McBryde’s instruction to the jury.
In
response to McBryde’s woefully inadequate response to its second note, the
jury sent another note to McBryde which asked, “Since no proof has been
presented that Simkanin was required to withhold do we have to read
through all 7,000 pages of the internal revenue law to find where it says he
was required him to withhold?” McBryde responded to the jury by
telling them the court had made a determination that the law was “there” and
that they (the jury) did not have to concern themselves with the proof of
that.
Click here to read the jury’s fourth note to McBryde and
McBryde’s instruction to the jury.
It is
safe to assume that based on McBryde’s response to jury note #2 and #4,
someone on the jury convinced the others that they had to find Dick Simkanin
guilty on counts 1-12 (willful failure to withhold). At one point they had a
unanimous vote, but according to another note from the jury, one of the
jurors changed his vote on the first two counts.
The
jury also asked McBryde for the three criteria that had to be met in order
to find Simkanin guilty on counts 13-28 (filing false instruments). McBryde
instructed the jury accordingly. This charge grows out of Simkanin’s
decision to stop withholding. His employees asked him to file refunds of the
money withheld in 1998. Simkanin filed for the refunds, and the IRS refused
to honor them. Simkanin dropped the matter. Instead, the government filed
felony False Claim charges against Simkanin for daring to ask for the
refunds.
It is
safe to assume that based on McBryde’s response to jury note #3, someone on
the jury convinced the others that they had to find Dick Simkanin guilty on
counts 13-27 (filing false requests for refunds).
Click here to read jury note #3 and McBryde’s response to the
jury.
Reversible
Errors
In
order for the 5th Circuit Court of Appeals or the U.S. Supreme
Court to reverse the jury’s determination of guilt on counts 3-31, Dick
Simkanin’s legal team will have to argue successfully that McBryde erred
during the trial and/or in his instructions to the jury.
McBryde appears to have committed numerous errors. For instance, McBryde
decided important facts of the case, rather than letting the jury rule on
those facts, McBryde arbitrarily and capriciously restricted Dick Simkanin’s
evidence and witnesses, and McBryde (deliberately) misguided the jury
regarding the definition of willfulness.
The
Transcript
Plans
are getting underway to appeal the jury’s decision to the 5th
Circuit Court of Appeals in
New Orleans.
The
first order of business is obtaining the 1200 page transcript of the trial.
Eileen Brewer, the court reporter has quoted $6900 for a rush delivery of an
electronic copy and a hard copy of the transcript.
Everyone is encouraged to immediately send a “for the transcript”
donation to Hank
Goltz, who will prepare an spreadsheet (anonymously)
documenting the source and amount of all donations, as he did with donations
for the “free Simkanin” billboards. To donate by credit card, please
click here.
Appellate criminal defense attorneys are being interviewed. We need the
transcript to file the Notice of Appeal and a motion to free Simkanin
pending the appeal process.
Impeachment
We The
People agrees with those who are calling for the impeachment of Judge John
McBryde. We have started to investigate the criteria that must be met and
the legal procedure that must be followed.
More on this later.
Arch McColl
In
Arch McColl we have a man who is a true patriot who lives by the conviction
of his beliefs.
There
are many among us, including lawyers, who know the truth but do not have the
courage of their convictions.
Arch
McColl is one person who has the courage of his convictions. He responded to
Dick Simkanin’s call for justice. He had little knowledge of the contents of
the internal revenue laws. He knew the attitude of the courts regarding
people who questioned the validity of those laws. He knew he could be
sanctioned or disbarred for representing the beliefs of Dick Simkanin.
However, above all he believed every man was entitled to due process
and a fair trial, that every man was innocent until proven guilty, and that
every man was entitled to his day in court and allowed to develop and
present his defense.
Arch
McColl was not only committed to learning what Dick Simkanin had come to
believe about the internal revenue laws, but he was committed to defending
Simkanin and his beliefs before a judge well known for his abusive and
tyrannical behavior, all at great risk to himself. He applied himself under
extraordinary circumstances to learn the subject matter and he had the
courage of his convictions. Arch’s payment takes the case to the Supreme
Court. He is a man of honor. He didn’t come to the table with an inflexible
preconceived notion about how Dick’s defense should be handled. He was
open-minded. He made himself available to everyone who came to him. He
listened to all opinions. He incorporated all arguments that he felt had
merit. It was his openness that allowed us to preserve the record the way we
did and to preserve Simkanin’s witnesses.
For
all this we owe Arch McColl respect and admiration.
Dick
Simkanin was unlawfully indicted, denied his Right to present witnesses and
evidence, and denied due process. He was unjustly accused. He was convicted
by Judge McBryde before he went to trial (called a member of a cult).
Simkanin’s fate was sealed the moment the DOJ decided to keep him away from
the 2003 Grand Jury.
Under
the circumstances, including the feebleness of the trial jury, no other
attorney could have done better than Arch McColl.
However, in our opinion, this does not excuse the more experienced and
seasoned tax-honesty attorneys who knew this was McColl’s first experience
defending someone in a “willful failure” case and did not drop everything to
be in Fort Worth to help Simkanin.
If you
are going to be part of the solution, then you have a voice and a
responsibility to have that voice heard.
Arch
had the courage to come forward. He is a 27 year trial lawyer. He saw the
injustice and abusive treatment. Because he is a man of courage and
conviction he stepped forward. Did he come forward with subject matter
expertise? No. Did he come forward with heart and integrity? Yes.
Arch
gave it everything he had. He was willing to help a man who risked
everything he had in the interest of liberty and in the interest of his
employees.
If our
founders were here today they would have been there, along with McColl,
fighting for Dick Simkanin’s freedom.
We
were the ones closest to Arch and the legal team and to those who came to
the trial to support Simkanin. We are in the best position to judge Arch and
his team. No one should criticize Arch McColl because the judge denied Dick
due process.
Differences Between Simkanin’s and Vernie Kuglin’s Trials
Dick
was a successful business owner and employer.
The
government’s focus was on Simkanin’s decision to stop withholding.
Withholding is the government’s “Achilles heel”. According to David Cay
Johnston of The New York Times, more than 1500 companies have already
stopped withholding. Without withholding, the government will have a nearly
impossible task of collecting the voluntary tax.
McBryde’s pattern of behavior supports the proposition that Washington was
involved and meant to bring Dick down no matter what, even if they had to
lie, cheat, misrepresent, doctor the evidence, misled the jury, or lie to
the jury. McBryde’s assertions to the jury that “Social Security is
mandatory” and that “there is a law that required Simkanin to withhold” were
two explicit lies told to the jury.
Arrow
Custom Plastics is a business. Like all businesses, it has to be exploited
by the government as a withholding agent. However, Dick could not be
coerced, intimidated or bought. He said “no.” He tried, unsuccessfully, to
get the government to show him the law that required withholding and filing.
He said the first fruits belong to the people and to God, not to the
government. He did not believe government had the right to take bread out of
the mouths of labor.
We
believe that had this trial not involve the withholding issue and had this
trial been held before the Judge overseeing the trial of Vernie Kuglin, the
result would have been different at this, the District Court level.
Arrow Custom
Plastics
Throughout this legal process, outside people and Arrow’s current employees
have been attempting to save Dick's business, Arrow Plastics.
As we
reported during the summer, following the IRS’s maliciously notified the
major business credit bureaus about Simkanin’s tax prosecution, 80% of his
customers have canceled their contracts with Arrow out of fear that the IRS
was going to seize the plant along with the plastic molds Dick and his team
had designed for them. In addition, Dick’s suppliers continue to demand cash
payment in advance of material deliveries.
Although a thorough financial analysis has been conducted and several
potential solutions to salvage the business have been seriously evaluated
and considered, it is likely that the business Simkanin built from scratch
will be insolvent in less than two weeks.
As
such, it now appears likely that the business will be liquidated to salvage
the remaining assets so they can be used by Simkanin to support his family
and help finance what will certainly be a costly appeal process.
Insightful
Analyses of The Trial
There
has been a fair amount of screaming on the Internet over the treatment of
Dick Simkanin by the government, but there has also been some very
thoughtful commentary as well.
Click here to read some of those comments. We will add to the
contents of this page as those comments
continue to come to our attention.
Keep Writing
to Dick
Please
keep writing to Dick Simkanin. He has told us that reading your letters is
making the days go faster and keeps his spirits up. Send your thoughts of
support and encouragement to Dick.
(ADDRESS REDACTED NO LONGER VALID)
Dick’s Applesauce Story
While
visiting with Dick and talking to him through a steel screen while waiting
for the jury’s verdict, we asked Dick to describe the jail house and to
describe for us the jailhouse daily routine.
He had relayed previously that his fellow prisoners and the prison staff
have been very interested in the legal details of his prosecution and were
following his case closely.
It was during the course of that discussion that he told us the following
story:
One
day Dick went back to the chow line for a second helping of applesauce.
Instead of a second helping, the man whose job it was to hand food to the
inmates yelled, “Get outta here Simkanin -- no seconds.”
Dick
said after quietly returning to his table another inmate approached him and
gave Dick his applesauce. Then another inmate did the same. Then another --
and another. Soon, Dick said, his tray was overrunning with applesauce.
Leave it to the criminals to know when a real crime has been
committed.
Please
help us
free Dick.
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