(originally launched into cyberspace on 09/01/2007)Dear Subscriber,
As I've mentioned before, the appeal of my bogus conviction is
scheduled to be heard on September 25th. (I don't know that
anything will actually be happening worth being there for; they may
just make their ruling based on the motions filed.) The appeal
raises several issues, one of them relating to the absurdity of
letting the government harp on how some IRS bureaucrats and lower
court judges asserted that my conclusions were incorrect, while
prohibiting the jury from seeing or hearing statements from other
credentialed people (including former IRS and DOJ folk) who agree
with me. In other words, the DOJ could say "This IRS agent told him
he was wrong!" while I was NOT allowed to say, "Well this IRS agent
told me I was RIGHT!" Sounds fair, doesn't it?
In excluding any testimony or evidence about other people agreeing
with me, the judge in my case said that what OTHER people believe
is completely irrelevant to the issue of MY "willfulness." I found
that rather odd, since EVERYTHING the government presented was the
opinion of OTHER people; they cited nothing from ME hinting that I
believe I owed the tax (because I don't).
Anyway, I just learned that a federal Appeals court hearing a case
stemming from the "Anderson Ark" group just THREW OUT convictions
for "willful" federal tax crimes for very similar reasons (U.S. v.
MORAN, 05-30215 and 05-30226 (9th Cir. 2007)). The Morans appealed
their convictions on four grounds, three of which were ruled
against by the court. The fourth, however, dealt with the fact that
the trial judge prohibited the defendants from introducing
testimony about how their beliefs were based "among other things,
on opinions from a CPA and outside experts." Just as in my case,
the judge claimed "hearsay" as the justification for excluding such
evidence (as well as claiming a Rule 403 exclusion, which I won't
bother explaining at the moment).
"On two occasions during the trial, the district court excluded
testimony by Mrs. Moran about what she had learned from outside
experts."
In the second instance, the government was asking one defendant
about a letter from an attorney who questioned the legality of the
defendants' actions. When the defendant tried to talk about how
OTHER experts had said their actions WERE legal, she was cut off,
and not allowed to talk about that. (Wow, sounds familiar: if
someone DISAGREE with a defendant, it's relevant proof of
"willfulness"; but when someone AGREES with the defendant, it's
irrelevant, inadmissible hearsay. Sounds fair.)
The Appeals court bluntly stated: "The defendant is entitled to
testify about the tax advice he received — subject, of course, to
cross-examination — and exclusion of this testimony is error."
The court also said something my appeal states: "Such testimony
does not constitute hearsay when not offered for the truth of the
matter stated." (Without getting into the technicalities, a
"statement" isn't hearsay at all if it's not introduced to prove
the matter asserted. So, for example, when I wanted to play
excerpts of radio shows on which Sherry Jackson, former IRS agent,
AGREED with my findings, it was NOT being introduced to prove the
matter asserted--i.e., that most of us don't owe the tax--but as
something impacting my beliefs (or "state of mind"). So it wasn't
"hearsay" at all.
(Incidentally, the same applies to the exclusion of my video, my
report, my web sites, etc., which is a BIG part of my appeal. They
aren't "hearsay" at all, because they were NOT being introduced to
prove the matter asserted: that I don't owe the tax (which I wasn't
even allowed to argue); they were going to be introduced as
evidence of my beliefs, or "state of mind.")
Perhaps my favorite sentence from the ruling--because it sounds so
much like my case--was this: "The government's questioning of Mrs.
Moran raised the implication, as her counsel explained at trial,
that the Hayes letter was the only opinion the Morans ever
received, thus opening the door to redirect about what other legal
opinions they had received."
Of course, one court doing the right thing doesn't mean another one
(in a different district) will, but if the Third Circuit rules
against our appeal (after the Ninth Circuit ruled the other way on
the same issue), there will be an obvious conflict between
districts, which may be enough to get the case heard by the Supreme
Court. That would be fun.
Sincerely,
Larken Rose
www.larkenrose.com
