A lengthy report on the trial of Dick Simankin from the We the People Foundation. The Simankin case is extremely interesting to me, because he is one of the few people who have ever made a serious "show the law" argument in a federal case. While I do not strictly speaking agree with Simkanin's legal premises, it is suprising that a judge would actually push for a conviction on the argument that "everybody knows it's illegal" vs. simply stating the law. The only statute stated as evidence to convict Simankin is the statute which outlays penalties for breaking the law -- not the law itself. And for refusing to buckle absent being shown the specific law he is alleged to have violated, Simankin now faces up to 129 years in prison.
Emphasis in the text added by myself.
Phaedrus
********
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.mymail.com/simkanin/
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.
Richard Simkanin
REG# 30383-177
FMC Jail Unit
P. O. Box 15330
Fort Worth, Texas 76119
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.
Emphasis in the text added by myself.
Phaedrus
********
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.mymail.com/simkanin/
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.
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.
Richard Simkanin
REG# 30383-177
FMC Jail Unit
P. O. Box 15330
Fort Worth, Texas 76119
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.
