Hey rob good meeting you the other day. This is some information that wont be in the news. I highly recomend you check out the www.861.info however if take the blue pill everything will return to normal...just kidding. have a good one!
Larken Rose <[EMAIL PROTECTED]> wrote:Date: Wed, 17 Aug 2005 11:38:11 -0700 (PDT) Subject: Rule 29 Motion From: "Larken Rose" <[EMAIL PROTECTED]> To: [EMAIL PROTECTED] Dear Subscriber, Below is a Rule 29 motion for acquittal, which is being filed today. For appeals, sentencing, etc., I'll be using an attorney (a really dang good one), but this one I had to do myself to get it filed in time. I think it's self-explanatory. (Sorry the formatting and emphasis disappeared in the "cut and paste.") Sincerely, Larken Rose [EMAIL PROTECTED] http://www.861.info http://www.theft-by-deception.com Past messages to this list can be found here: http://www.3rdear.com/cgi-bin/ubb/ultimatebb.cgi?ubb=forum;f=16 --------------------------------------------------------------------- IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ) United States of America ) ) v. ) Criminal No. 05-cr-00101 ) Larken Rose ) _________________________) MOTION FOR JUDGMENT OF ACQUITTAL Larken Rose (the "Defendant" herein), having been convicted by a jury of five misdemeanor counts of "willful failure to file" federal income tax returns (26 USC § 7203), hereby moves this honorable Court, pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure, to set aside the jury verdict and enter an acquittal, based upon the failure of the government to prove guilt beyond a reasonable doubt. In support of this request, the Defendant presents the following: Essence of the Case Most of the facts in this case are not in dispute. The Defendant acknowledged receiving income in all of the years in question (1998 through 2002), and admits to not filing federal income tax returns (either individually, or jointly with his wife) for any of those years. The Defendant acknowledges that he received enough income such that if that income were subject to the federal income tax, he would have had a filing requirement. However, the Defendant believes his income to be excluded for federal income tax purposes. This case revolves around the issue of "willfulness," i.e. whether the Defendant did what he believed the law required of him or not. The governing case regarding this principle is Cheek v. United States, 498 U.S. 192 (1991), in which the court stated that "a good-faith belief that one is not violating the law negates willfulness, whether or not the claimed belief or misunderstanding is objectively reasonable." In Cheek, and prior decisions, the Supreme Court has also addressed some points and possibilities that do not apply in this case. For example, in Cheek it was stated that "a defendant's views about the tax statutes' validity [constitutionality] are irrelevant to the issue of willfulness." In this case, both at trial and in pre-trial proceedings, the Defendant made it clear that he was not challenging the constitutionality or validity of the federal income tax laws, and the government offered no evidence to the contrary. In Cheek, the Court also spoke of the failure to file due to a "mistake" or "negligence," or due to being unaware of the requirement, as also being contrary to willfulness. The record in this case, however, makes it plain that the Defendant's failure to file was not the result of an "accident" or oversight, nor the result of having never heard of (or being unaware of) filing requirements in general, but was a conscious decision based upon the Defendant's beliefs concerning his legal requirements. The Defendant in this case on many occasions expressed to various government officials his conclusions regarding his legal obligations, telling the government he had intentionally stopped filing returns, and explaining why he believed his actions to be in accordance with the law (and the government acknowledges that fact). In light of the above, whether the Defendant acted "willfully" in this case depends upon one simple question: did the Defendant truly believe the position and legal conclusions he was espousing, or was he merely pretending to hold such a belief? If the Defendant truly believed what he was saying, then there is no "willfulness," regardless of how "unreasonable" anyone deems those beliefs. Thus, for the government to have proved the essential element of "willfulness," it must have proved, beyond a reasonable doubt, that the Defendant was merely pretending to hold the belief he has been espousing for eight years, but did not truly hold those beliefs. The Defendant therefore presents the following, to establish that the government's case did not prove a likelihood, or even a significant possibility, that the Defendant was merely pretending to hold the beliefs he was espousing, and thus failed to prove beyond a reasonable doubt the essential element of "willfulness" in this case. (The Defendant believes that the jury's verdict was due in large part to a failure to understand the element of "willfulness.") Believing vs. Pretending Each of the types of testimony and evidence which the government presented in order to try to prove "willfulness" in reality proved nothing of the kind, as explained below. 1) Past filings There are situations in which past filings of returns can be indicative of "willfulness." For example, if an individual claims he did not file because he had never heard of such a requirement, past filings by that individual would disprove such a claim. However, in this case, past filings prove nothing. To use the fact that someone once held a certain belief, as evidence that the person must still necessarily hold that belief, is illogical, and rests on the absurd assumption that it is impossible for an individual's beliefs to change over time. In this case, the evidence shows that the Defendant explained to those in government, on several occasions, why his beliefs regarding his legal requirements had changed after 1996 (e.g. Government Exhibits 1-16 and 1-17). 2) Improved Finances The government presented evidence of the Defendant's finances improving (e.g. the Defendant and his wife paid off their mortgage well ahead of the scheduled 30 year payment plan [Government Exhibits 7-1, 7-2 and 7-3]) during the time frame when they were no longer filing federal income tax returns. Common sense dictates that this would be the case regardless of whether the Defendant believed his actions to be in accordance with the law or not. Thus, such "evidence" has no bearing whatsoever on the Defendant's "willfulness." 3) Attitude The government presented evidence indicative of what could be characterized as the Defendant's strong "anti-IRS" sentiments, and his hopes to see the IRS "out of business." Such an attitude would be just as likely, if not more so, if the Defendant believed the IRS was routinely misapplying the law, than if the Defendant believed the IRS was applying the law correctly. Of note, none of the related evidence contained any wording suggesting that the Defendant was trying to stop the law from being administered; on the contrary, the Defendant's own prior statements spoke of trying to stop the IRS from misapplying the law. These comments, including the following statements by the Defendant in the government's own exhibits, further support the fact that the Defendant truly believed that the income tax laws as written do not apply as "popular opinion" says they do, and do not tax his income. "The tax is not a tax on labor or income. It is a tax on engaging in international or foreign commerce, and the AMOUNT of the tax is measured by the income it produces." [19-21] "The 'law' doesn't tax my income." [19-24] "The IRS is an extortion racket, which pretends that it is backed by 'law'." [19-24] "The government has made it perfectly clear that they will NOT admit the truth or give up the 'income [tax]' deception willingly." [19-25] "The feds are the one [sic] duping people; we are the ones UNduping them." [19-27] 4) Political Philosophy The government presented evidence indicative of the Defendant's unorthodox political beliefs, including the Defendant describing himself as an "anarchist." However, the law requires only physical compliance, not moral agreement, and of the many documents and other evidence introduced by the government, none even implied that the Defendant's reason for not filing was based upon political philosophy. On the contrary, the evidence instead shows that the Defendant possessed the same "anti-IRS" sentiments, and the same political beliefs, in the prior years for which the Defendant was filing returns [e.g. Government Exhibits 19-2 and 19-3], reinforcing the fact that the Defendant's political philosophy and attitudes were not the reason for the Defendant not filing returns for 1998 through 2002. (Disobeying a law is illegal; thinking a law is immoral is not. Barring some evidence that the Defendant intentionally violated the law based upon his political beliefs--which the government never introduced--the Defendant's political beliefs are not evidence of criminal intent any more than an individual being philosophically against drug prohibition constitutes proof that that individual violated the drug laws.) Of note, where the evidence introduced at trial by the government might be viewed one way to support the government's case, or might be viewed another way to support the theory of the defense (as is the case here concerning the Defendant's political beliefs and "attitudes"), the burden of proof beyond a reasonable doubt is not met. In U.S. v. Balzano, 916 F.2d 1273, 1284 (7th Cir. 1990), the court refused to uphold a verdict "based solely upon the piling of inference upon inference," adding that "Where the evidence as to an element of crime is equally consistent with a theory of innocence as a theory of guilt, that evidence necessarily fails to establish guilt beyond a reasonable doubt." 5) Form Letters The government presented a number of form letters (e.g. Exhibits 19-5 through 19-15) which the Defendant was aware of, and which to some degree disagree with the Defendant's conclusions (though the substance of the letters varies). The form letters in question certainly constitute proof that someone other than the Defendant disagrees with the Defendant's stated conclusions. But to present a document written by someone else, as if it constitutes proof of the Defendant's own beliefs, is illogical, as it depends upon the absurd assumption that it is impossible for a citizen to disagree with a government form letter. (Curiously, the government not only did not introduce the Defendant's public responses to those form letters, which would actually be probative of the Defendant's own beliefs, but objected to the Defendant introducing such documents.) It should be noted that for "willful" tax crimes, the question is not whether the government thinks the Defendant should have believed he was required to do something, but only whether the Defendant did believe he was required to do something. In Spies v. United States, 317 U.S. 492 (1943), the Supreme Court stated that it "is not the purpose of the [criminal tax statutes] to penalize frank difference of opinion" regarding legal requirements, and that if someone makes an honest error in determining his liability, such errors "are corrected by the assessment of the deficiency of tax and its collection with interest for the delay." (As the evidence at trial demonstrated, the IRS never attempted collections for the years in question.) 6) Contrary Court Rulings The government presented evidence regarding several lower court rulings, in which positions similar to the Defendant's were ruled against. As in the case of form letters, however, what the government thinks the Defendant should have believed is irrelevant. To prove "willfulness," the government instead must prove that the Defendant did believe his actions to be unlawful. (What someone other than the Defendant believes is not relevant.) The fact that a court has deemed a certain legal position to be "frivolous" does not make it impossible for an individual to continue to hold such a position. To wit, in the third footnote in the Cheek ruling (supra), it was explained that both the U.S. District Court and the Appeals Court had ruled against claims filed by the defendant (Mr. Cheek), calling his position "frivolous." Nonetheless, Cheek still ruled that if the defendant "truly believed" he did not owe federal income taxes, "the Government would not have carried its burden to prove willfulness, however unreasonable a court might deem such a belief" (emphasis added). (Again, it should be noted that the government did not introduce, and sought to prevent the Defendant from introducing, the Defendant's published responses to the lower court rulings cited, which obviously would be probative of the Defendant's beliefs.) Proof of Belief Brief mention should be made of the Defendant's stated belief, as shown in the evidence and testimony given at trial, not for the purpose of arguing the validity of such beliefs, but to establish a foundation of good faith and lawful reliance upon legally-binding documents, which the government would have to overcome by showing that the stated beliefs were not actually held by the Defendant. 1) Point One: Excluded Due to the Constitution Defendant testified to believing that in addition to the types of income specifically exempted from tax by sections of the tax code, certain other income is also excluded from taxation because of the Constitution itself. In support of this point, Defendant introduced into evidence 26 CFR § 39.21-1 (1956) [Defense Exhibit 2] and Article 71, Treasury Decision 3146 (1924) [Defense Exhibit 3], saying that neither income exempt by statute or "fundamental law" enter into the computation of "net income"; 26 CFR § 39.22(b)-1 (1956) [Defense Exhibit 2], saying that in addition to the statutory exemptions, some other income was excluded from "gross income" because it was, "under the Constitution, not taxable by the Federal government"; 26 CFR § 1.312-6 [Defense Exhibit 10], which (in the context of discussing corporations) speaks of three categories of income: "all income exempted by statute, income not taxable by the Federal Government under the Constitution, as well as all items includible in gross income under section 61 or corresponding provisions of prior revenue acts." Defendant also introduced 26 CFR § 1.861-8(a)(3) [Defense Exhibit 11], which explains that the items listed in the general definition of "gross income" make up "classes of gross income," and that 26 CFR § 1.861-8(d)(2) "provides that a class of gross income may include excluded income" (see 26 CFR § 1.861-8(b)(1)). The government offered no evidence or testimony at all addressing this point, mentioning those citations, mentioning "classes of gross income," or explaining what income might be excluded because of the Constitution, or in what situations the items listed in Section 61 might be exempt, nor did any of the form letters, court rulings, or other materials and testimony offered by the government touch on this point in any way. 2) Point Two: International Trade Not Exempt Defendant testified to believing that income from certain international trade is not exempt from tax, and that receipt of such taxable income creates a filing requirement and a tax liability. In support of this point, Defendant introduced 26 CFR § 39.22(a)-1 (1956) [Defense Exhibit 2], saying that income which U.S. citizens receive from foreign commerce "must be included in their gross income" (while not mentioning domestic commerce), as well as discussing the U.S. income of foreigners, and certain income of those doing business in federal possessions; 26 CFR § 1.861-8T [Defense Exhibit 12], listing types of income which are "not exempt," with that list including U.S. income of foreigners (1.861-8T(d)(2)(iii)(A)), the income of DISCs and FSCs (1.861-8T(d)(2)(iii)(B)), certain income of possessions corporations (1.861-8T(d)(2)(iii)(C)), and foreign earned income (1.861-8T(d)(2)(iii)(D)), but with that list not including the domestic income of the Defendant. The government offered no evidence or testimony at all addressing this point directly, mentioning those lists (current and past) of what is not exempt, explaining the purpose of those lists, explaining why the Defendant's income, if taxable, was not included on those lists, nor did any of the form letters, court rulings, or other materials and testimony offered by the government address this point. 3) Point Three: Determining Taxable Domestic Income Defendant testified that he believes that he should refer to 26 USC § 861(b) and 26 CFR § 1.861-8 to determine his taxable domestic income. As support for this point, the Defendant cited 26 CFR §§ 1.861-1, 1.861-8, 1.863-1, several entries in the index of the United States Code, a cross-reference under 26 USC § 61 itself, directing the reader to 26 USC § 861 regarding "Income from sources within the United States," etc. Government witnesses, and form letters introduced by the government, gave assertions implying that in the Defendant's case, he should not refer to those sections (26 USC § 861 and its regulations) to determine his taxable domestic income, but never cited a single statute or regulation backing up such a claim, nor did they provide any "context" or other citation which would contradict the citations upon which Defendant relied. 4) Point Four: What 861 and Regulations Show to be Taxable Defendant testified that he believed that income is shown to be taxable by 26 USC § 861 and its regulations only if derived from certain types of commerce which relate to international commerce or federal possessions. Defendant presented evidence in support of that point, such as Section 217 of the Revenue Act of 1924 [Defense Exhibit 25], statutory predecessor of 26 USC § 861, which states that various types of domestic income, including "Compensation for labor or personal services performed in the United States," constitute income from within the U.S., and after deductions are to be included as domestic "net income," "[i]n the case of a nonresident alien individual or of a citizen entitled to the benefits of section 262" (with section 262 applying only to those who receive most of their income from federal possessions). Defendant also introduced more recent manifestations of that part of the law, including Section 39.119(b)-1 of the 1945 regulations [Defense Exhibit 27], and the current 26 CFR § 1.861-8 [Defense Exhibit 11], which shows that income is still taxable under the general terms of 26 USC § 861 only when it derives from the "specific sources" listed in 26 CFR § 1.861-8(f)(1) (see 26 CFR §§ 1.861-8(f)(3)(ii), 1.861-8(a)(4)). At trial, the government did not discuss the older sections at all, and merely made assertions about the proper application of 26 USC § 861, without introducing into evidence any citation or evidence to support that position. 5) Point Five: Matters Not Specifically Pointed Out Defendant testified that he believed that one should not read taxing statutes to apply to matters "not specifically pointed out," and that where the law specifically lists matters to which it applies, it should be assumed that what was not specifically listed was intended to be excluded. As support for this point, the Defendant introduced the definition of inclusio unius [Defense Exhibit 4], and the case of Gould v. Gould, 245 U.S. 151 (1917) [Defense Exhibit 5]. In its case, the government never discussed this issue at all. Proof of Pretending In a case such as this, where a Defendant has explained his position in detail, and provided extensive legal support for each point of that position, for the government to prove "willfulness" it is not enough to establish that the Defendant's beliefs were incorrect, or that the Defendant should have believed otherwise, or even that the Defendant might have believed something other than what he stated: the government must prove, even beyond a reasonable doubt, that the Defendant did not believe his actions to be in accordance with the law (i.e. did not actually hold the beliefs he was espousing). Because of the issue of "willfulness," a verdict of "guilty" would be justified only if the government proved, beyond a reasonable doubt, that the position which the Defendant has consistently espoused for over eight years in public, in numerous correspondences with the government, in meetings with the IRS, on radio shows, and even in hundreds (if not thousands) of private e-mails and correspondence, does not reflect his actual beliefs, but instead was all merely an elaborate act, in which the Defendant merely pretended to hold such a belief. Not only did the government prove no such thing, but never even directly alleged such a thing (but instead sought to impugn the Defendant's political beliefs, motives, attitudes, etc.). While the government presented evidence indicating that the government believes the Defendant should not have held his stated beliefs, no evidence at all was presented showing that the Defendant did not hold those beliefs. Given the testimony and evidence presented at trial by both sides, the Defendant finds it unimaginable that anyone could honestly state that there was not even a reasonable possibility that the Defendant truly believed the legal conclusions he expressed at trial. To justify a verdict of guilty in a "willful" case, however, one must conclude that the Defendant set out to break the law, and that there is not even a "reasonable doubt" about what the Defendant believed were his legal requirements. (Again, the Defendant believes that if the jury understood this principle, a verdict of "not guilty" would have been returned.) At trial, the prosecution clearly proved that the IRS wished the Defendant believed something other than his stated beliefs. But if the government raised even the slightest possibility that the Defendant actually did believe something other than his stated beliefs (and even that is highly doubtful), the government certainly came nowhere near meeting the threshold of proving beyond a reasonable doubt that the Defendant believed his income was taxable. Without that, a verdict of guilty is not warranted. CONCLUSION For the foregoing reasons, the Defendants respectfully asks the Court to issue a judgment for acquittal, setting aside the jury verdict in this case, and enterring a verdict of "not guilty" instead. Respectfully submitted, this 17th day of August, 2005. __________________________________ Larken Rose (Pro Se) [address redacted] ---------------------------------------------------------------------------- To subscribe, send a blank message to [EMAIL PROTECTED] To unsubscribe, send a blank message to [EMAIL PROTECTED] To change your email address, send a message to [EMAIL PROTECTED] with your old address in the Subject: line To contact the list owner, send your message to [EMAIL PROTECTED] To unsubscribe, click on the following web page. http://cgi.mail-list.com/u?ln=t-i-updates&[EMAIL PROTECTED] This message was launched into cyberspace to [EMAIL PROTECTED] Thomas "Rocky" Costanzo Windsor Capital Mortgage 1.95% fixed payment loan that pays off in 25 years. DROP your payments, get CASH out of your home and REDUCE the term! 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