http://www.militia-watchdog.org/beacom.htm
In the spring of 1997, Larry Becraft revealed his work for Beacom in a posting on the Internet to a newsgroup for libertarians living in the Pacific Northwest. In the posting, he stated that he had "a very important appeal for a man named Gary Beacom from Sun Valley which relates to Idaho state income tax returns." Becraft asked for the "support" of others in Idaho who were "interested in tax issues."
Lowell "Larry" Becraft, Jr., had by 1997 become the single most prominent attorney specializing in the cases of tax protesters. It is not an area that invites a great deal of competition. Most tax protesters dislike lawyers as much as they dislike the government. Moreover, the chances for success are amazingly slim. Before 1990 the Internal Revenue Service had a 100% success rate on tax protester cases. Since then, it has lost a few, on different grounds, but the statistics are still overwhelmingly in its favor at 96%. Tax protest attorneys can’t afford to be discouraged by failure. They also have to be creative. Tax protesters tend to fall into two categories: the purists and the practical. The purists will use arguments in court that have long since been ruled against or thrown out as frivolous. A purist might claim that he or she is not required to fill out an income tax return because that would violate the Fifth Amendment, even though the courts ruled against that argument years ago. Why? Because they are not simply trying to win their case, they also believe that their argument is correct. Therefore, if a judge rules against it, it is the judge that is wrong, not the argument. The practical protesters, however, do not treat each argument as if they were crusades, but rather as weapons. If a particular argument fails, they abandon it and try a new one.
Becraft falls into the practical camp, even to the extent of urging tax protesters to abandon lines of defense that had long since been proven impractical. He has also spoken out against many of the more bizarre theories of the "common law" adherents, such as the notion that gold fringe on the U.S. flag in a courtroom indicates that the court is an "Admiralty" court in which defendants have no constitutional rights. Still, there were few arguments that Becraft was not willing to try at least once. In 1985, Becraft tried to defend one client, Jane Ferguson, by arguing that the 16th Amendment, which allowed a federal income tax, was void because eleven state legislatures slightly reworded it before ratifying it. The judge was not impressed by his argument. In 1987, Becraft defended—unsuccessfully—a Nevada heavy equipment operator by claiming that the defendant had become convinced by a tax protest group that he honestly did not have to pay taxes. In 1990 the U.S. 9th Circuit Court of Appeals called "absurd" Becraft’s contention that the 16th Amendment did not authorize a direct, non-apportioned income tax on U.S. residents. However, the following year Becraft did have some success, when a jury refused to convict his client, Franklin Sanders, and sixteen other defendants, on charges of conspiring to evade federal taxes through a secret "warehouse" bank (such banks conceal monetary transactions by disguising them as "barter"). However, Becraft and Sanders were less successful in a state trial in 1992. Becraft’s greatest "victory" came in 1993, in a case tax protesters have pointed to ever since as evidence that they can "win" against the system. The case involved Tennessee farmer Lloyd Long, who stopped paying income taxes in1989. Although Long’s tax liability was never in doubt during the case, he "won" because the jury became convinced that Long honestly believed he did not have to pay taxes, and therefore was innocent on charges of willfully failing to pay taxes. Becraft and Long won because they claimed that the IRS had not "proved" to Long that he had to pay taxes. This argument is one that usually fails, but Long and Becraft managed to make it work. Since then, Becraft has defended a variety of tax protesters and other extremist defendants.
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http://www.lectlaw.com/files/tax16.htm
From the 'Lectric Law Library's stacks
List Of Some Tax Protest Case Decision Citations
From tzs@u.washington.edu, Jun 8 1994
If anyone wants to see how an actual court would deal with an argument that "United States includes X, Y, and Z" is meant to exclude the states, see 833 F.2d 1538. [*United States of America v. Ward, 833 F.2d 1538 (11th Cir. 1987) (conviction of tax evasion affirmed, despite arguments of Lowell H. Becraft Jr.).]
In case anyone wants a nice introduction to assorted tax protest arguments, and what happens when someone actually tries these in court, here are the cites from Westlaw for all cases in the ALLFEDS database (all reported Federal cases) that had Becraft as one of the attorneys. One of them is a different Becraft, but I don't remember which.
1. U.S. v. Sasscer, --- F.3d ---- (Table, Text in WESTLAW), Unpublished Disposition, 1994 WL 233221 (4th Cir. 1994
2. U.S. v. Neff, 954 F.2d 698, (11th Cir. 1992)
3. Allnutt v. C.I.R., 956 F.2d 1162 (Table, Text in WESTLAW), Unpublished Disposition, 1992 WL 34203 (4th Cir. 1992)
4. U.S. v. Holland, 956 F.2d 990 (10th Cir. 1992)
5. U.S. v. Opdahl, 930 F.2d 1530 (11th Cir. 1991)
6. U.S. v. Bowers, 920 F.2d 220, (4th Cir. 1990)
7. Despenza v. O'Leary, 889 F.2d 113 (7th Cir. 1989)
8. U.S. v. Burton, 888 F.2d 682 (10th Cir. 1989)
9. First Nat. Bank of Tulsa v. U.S. Dept. of Justice, 865 F.2d 217, (10th Cir. 1989)
10. U.S. v. Sitka, 845 F.2d 43, (2nd Cir. 1988)
11. U.S. v. Ward, 833 F.2d 1538, (11th Cir. 1987)
12. U.S. v. Stahl, 792 F.2d 1438, (9th Cir. 1986)
13. U.S. v. Ferguson, 793 F.2d 828, (7th Cir., 1986)
14. U.S. v. Goehring, 742 F.2d 1323, (11th Cir. 1984)
15. Parker v. U.S., 1993 WL 300184, 71 A.F.T.R.2d 93-2017, 93-2 USTC P 50,399 (W.D.Mich. 1993) (NO. 4:92-CV-28)
16. U.S. v. Holland, 830 F.Supp. 1388 (N.D.Okla. 1993)
17. U.S. v. McCall, 727 F.Supp. 1252, (N.D.Ind. 1990)
18. U.S. v. Sitka, 666 F.Supp. 19 (D.Conn. 1987)
19. Federal Land Bank of Jackson v. Kennedy, 662 F.Supp. 787 (N.D.Miss. 1987)
20. U.S. v. House, 617 F.Supp. 237, (W.D.Mich. 1985)
21. U.S. v. House, 617 F.Supp. 240, (W.D.Mich. 1985)
22. U.S. v. House, 617 F.Supp. 232, (W.D.Mich. 1985)
23. U.S. v. Puckett, 573 F.Supp. 713, (E.D.Tenn. 1981)
24. Sly v. C.I.R., T.C. Memo. 1988-443, 1988 WL 94450, 56 T.C.M. (CCH) 209, T.C.M. (P-H) 88,443 (U.S.Tax Ct. 1988)
25. Universal Church of Jesus Christ, Inc. v. C.I.R., T.C. Memo. 1988-65, 1988 WL 12612, 55 T.C.M. (CCH) 144, T.C.M. (P-H) 88,065 (U.S.Tax Ct. 1988)
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http://www1.netaxs.com:8080/people/evansdb/tpfaq.html#USdef
The income tax does not apply to citizens outside of the District of Columbia and territories of the United States because the way "United States" is defined in the Internal Revenue Code does not include the states of the United States. This argument is the result of functional illiteracy.
Section 7701(a)(9) of the Internal Revenue Code states that "The term 'United States' when used in a geographical sense includes only the States and the District of Columbia."
Well, that contradicts the tax protesters, because it says that "United States" includes "the States." But the tax protesters then turn to the definition of "State":
"The term 'State' shall be construed to include the District of Columbia, where such construction is necessary to carry out provisions of this title." I.R.C. section 7701(a)(10). According to tax protesters, this definition excludes the states of the United States from the definition of "State," and "State" means only the District of Columbia. There are several things wrong with this "argument":
The word "includes" is also defined by the Internal Revenue Code. According to section 7701(c), "The terms 'includes' and 'including' when used in a definition contained in this title shall not be deemed to exclude other things otherwise within the meaning of the term defined." The states of the United States are within the normal meaning of the word "State," and so a definition that says that "State" shall be construed to include the District of Columbia does not exclude the states of the United States from the meaning of "State."
A definition of "State" that equates "State" with "District of Columbia" turns the definition of "United States" into gibberish, because the definition then becomes a statement that "United States" "includes only the District of Columbia and the District of Columbia."
The definition of "State" includes the District of Columbia "where such construction is necessary to carry out the provisions of this title." What happens if the construction is not necessary? If "State" does not include the District of Columbia, does it include anything at all? In that case, "United States" includes nothing at all, and the Internal Revenue Code applies to nothing at all. That is absurd. What have the courts said about the claim that the United States does not include the states of the United States?
"In an affidavit attached to his amended petition, petitioner sets forth numerous, tax-protester type legal arguments, including, in petitioner's words, the following propositions:
"That the Republic of Illinois is 'without the United States'; "...
"The Congress excluded the 50 States from the definition of 'United States,' ...
Petitioner attempts to argue an absurd proposition, essentially that the States of Illinois is not part of the United States. His hope is that he will find some semantic technicality which will render him exempt from Federal income tax, which applies generally to all U.S. citizens and residents. Suffice it to say, we find no support in any of the authorities petitioner cites for his position that he is not subject to Federal income tax on income he earned in Illinois. ... Petitioner's arguments are no more than stale tax protester contentions long dismissed summarily by this Court and all other courts which have heard such contentions." Nieman v. Commissioner, T.C. Memo 1993-533.
"Ward reaches this twisted conclusion [that the Internal Revenue Code only applies to individuals located within Washington, D.C., the federal enclaves within the states, and the territories and possessions of the United States] by misinterpreting a portion of the Income Tax Code. The 1913 Act defined the words 'state' or 'United States" to 'include' United States territories and the District of Columbia; Ward asks this court to interpret the word 'include' as a term of limitation, rather than of definition. ...
We find each of appellant's contentions to be utterly without merit." United States of America v. Ward, 833 F.2d 1538 (11th Cir. 1987) (conviction of tax evasion affirmed, despite arguments of Lowell H. Becraft Jr.).
"Steiner also argued that the word 'includes,' which appears throughout the tax laws, limits the court's jurisdiction under the tax laws. This argument has been specifically rejected in United States v. Condo, 741 F.2d 239, 239 (9th Cir. 1984), cert. denied, 469 U.S. 1164 (185), in which this court held that the word 'includes' is one of expansion, not limitation." United States v. Steiner, 963 F.2d 381 (9th Cir. 1992).
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http://www4.law.cornell.edu/uscode/26/7701.html
Sec. 7701. Definitions
(9) United States
The term ''United States'' when used in a geographical sense includes only the States and the District of Columbia.
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IS THE IRS DEAD? Under cross-examination by nationally prominent tax attorney, Lowell H. Becraft, Jr., Ms. Jeu (expert IRS witness) conceded that the IRS uses a secret code to classify people. Mr. Long (the defendant) was classified by the secret code of the IRS as not liable to file a tax return or pay income tax. -- Recent landmark tax case lost by IRS MANY AMERICANS MAY NOT BE LIABLE FOR FEDERAL INCOME TAX! In the above amazing court case the jury agreed with the defendant -- prosecuted for willful failure to file income tax returns for 1989 and 1990 -- that the "income tax" is actually an excise tax and applies only to certain classes of people. MAYBE NEITHER YOU NOR YOUR BUSINESS IS LIABLE! Imagine what your life or business would be like if you didn't have to keep records for the IRS, if you didn't have to file tax returns, if you didn't have to pay the IRS, if you didn't have to fear IRS audits. 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But what if *you personally* come to the good-faith decision that such statutes do not apply to you? What we mean, in part, by Freedom Technology is practical methods by which to live free. What if there exists a proven, lawful method for you to be free from many taxes? Many freedom groups through the years have offered information on tax freedom. Some of the methods advocated, while interesting, probably are not always effective. We believe the Reliance Defense Method, properly applied in good-faith, is the most effective tax freedom strategy yet devised. It is based on U.S. Supreme Court decision such as Cheek v. U.S., 111 S.Ct. 604 (1991). The Cheek decision says, in pertinent part: "If the defendant had a subjective good-faith belief, no matter how unreasonable, that he was not required to file a tax return, the government cannot establish that the defendant acted willfully." The Reliance Defense Method is covered in extensive detail in our new report #TL16G by Don Sovereign. Most people can probably save 1000's of dollars per year with this method. Some people can likely save tens of thousands of dollars per year. Now, it should be noted that all actions you take must be in good-faith. This means you should never call yourself a "tax protester" or say that you don't have to obey the law; these statements would demonstrate bad faith. You do not challenge the right of the Legislature to pass tax statutes and regulations. But, if after (1) getting advice letters from licensed attorneys and CPA's and (2) studying U.S. Supreme Court decisions yourself, you come *personally* to the honest, good-faith subjective belief that *you personally* are not required to file and pay, this method has proven bulletproof (!) -- when properly applied. The most important element of the Reliance Defense Method is that you must have at least one letter from an attorney, licensed at the time of writing this letter. In general, appellate courts have held that reliance on an attorney's professional advice (or U.S. Supreme Court decisions) absolutely shows good-faith as a matter of law. Our new report contains a listing of attorneys and CPA's willing to write such opinion letters for you, *personally*. If you would like to know the bottom line of why this method is so bulletproof effective even though the tax man hates it: If you truly in good-faith believe, based on expert legal advice that you don't have to file, then it doesn't even matter whether it was a reasonable belief or not! You beat the IRS hands down because ALL YOU HAVE TO SHOW IS THAT YOU *HONESTLY IN GOOD-FAITH BELIEVED* THE EXPERT ADVICE. Obviously this is bulletproof effective -- all you need to learn is HOW to study and obtain advice such that you might be able to reach and hold such honest good-faith beliefs. Such studying and obtaining advice is a brilliant application of Individual Sovereignty that you can apply right now. The methodology meshes perfectly with Terra Libra's emphasis on personal power in which you exercise your own personal solutions, rather than try to change the beliefs of others. After all, all that matters for *you personally* to use this method is that you develop a good-faith *personal belief* concerning the tax man. And the real bottom line is that it works! You simply cannot afford to miss out on this breakthrough application of Freedom Technology! To find out how to defeat the IRS, purchase the following tax reports: [We have deleted the reports and related info. If you really want to spend the next few years as an all-expense paid guest of Uncle Sam you can contact the below # about purchases, etc. We're sure they'll be happy to send you a complete list, etc. -- staff] Phone: (800) 562-3113 * Fax: (602) 234-1281 We Accept Checks Over The Telephone ----- Brought to you by - The 'Lectric Law Library The Net's Finest Legal Resource For Legal Pros & Laypeople Alike. http://www.lectlaw.com
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885 F.2d 547
In re Lowell H. BECRAFT, Jr.
UNITED STATES of America, Plaintiff/Appellee,
v.
Kenneth W. NELSON, Defendant/Appellant.
No. 88-1113.
United States Court of Appeals,
Ninth Circuit.
Sept. 6, 1989.
Before FERGUSON, NORRIS and WIGGINS, Circuit Judges.
ORDER
In February 1988, Kenneth Nelson was convicted in the United
States District Court for the District of Nevada on three counts of
failure to file income tax returns in violation of 26 U.S.C. s 7203.
Nelson, represented by counsel Lowell H. Becraft, Jr., then appealed to
this court claiming, inter alia, that the district court erred in refusing
to give his proposed jury instruction that a United States citizen
residing in the United States is not subject to the federal income tax
laws.
By memorandum disposition dated March 22, 1989, this court
affirmed Nelson's conviction, noting that Becraft's argument regarding the
inapplicability of the federal tax laws to resident United States citizens
had no basis in law. Becraft thereafter filed a petition for rehearing
and/or suggestion for rehearing en banc [hereafter "petition for
rehearing"]. In the petition for rehearing, Becraft once again argued
that the federal tax laws are inapplicable to resident United States
citizens.
Upon receipt of the petition for rehearing, we, sua sponte, issued
a show cause order requesting Becraft to explain why damages in the sum of
$2500 should not be assessed against him for filing a frivolous petition
for rehearing. See Appendix A. We have now reviewed Becraft's
several-hundred- page reply to our show cause order [hereinafter "reply"]
and have reached the conclusion that Becraft's conduct warrants sanctions.
Federal Rule of Appellate Procedure 38 provides this court with
the authority to impose sanctions to deter frivolous appeals and to
conserve limited federal judicial resources. [FN1] See, e.g., Grimes
v. Commissioner, 806 F.2d 1451, 1454 (9th Cir.1986) (per curiam);
Trohimovich v. Commissioner, 776 F.2d 873, 876 (9th Cir.1985); Nunley
v. Commissioner, 758 F.2d 372, 373 (9th Cir.1985) (per curiam). Pursuant
to Rule 38, sanctions may be imposed against pro se litigants, Grimes, 806
F.2d at 1454; Trohimovich, 776 F.2d at 876, litigants represented by
counsel, First Investors Corp. v. American Capital Financial Services,
Inc., 823 F.2d 307, 310 (9th Cir.1987); Wisconsin v. Glick, 782 F.2d 670,
673-74 (7th Cir.1986), and/or directly against appellate counsel. Nevijel
v. North Coast Life Ins. Co., 651 F.2d 671, 675 (9th Cir.1981); Coghlan
v. Starkey, 852 F.2d 806, 818 (5th Cir.1988); Braley v. Campbell, 832
F.2d 1504, 1511 (10th Cir.1987).
FN1. Rule 38 provides: If a court of appeals shall determine that
an appeal is frivolous, it may award just damages and single or double
costs to the appellee.
In assessing the propriety of appellate sanctions, we must
determine whether the issue raised on appeal--or as in this case, a
petition for rehearing--is indeed frivolous. It is well settled that an
appeal is frivolous when the result is obvious or the arguments of error
are wholly without merit. Grimes, 806 F.2d at 1454; Gattuso v. Pecorella,
733 F.2d 709, 710 (9th Cir.1984); Dewitt v. Western Pacific Railroad Co.,
719 F.2d 1448, 1451 (9th Cir.1983). We have no hesitation concluding that
the petition for rehearing filed by Becraft in this case meets the
frivolity standard.
Notwithstanding Becraft's insistence that his argument regarding
the inapplicability of the federal income tax laws to resident United
States citizens raises numerous complex issues, his position can fairly be
reduced to one elemental proposition: The Sixteenth Amendment does not
authorize a direct non-apportioned income tax on resident United States
citizens and thus such citizens are not subject to the federal income tax
laws. [FN2] We hardly need comment on the patent absurdity and frivolity
of such a proposition. For over 75 years, the Supreme Court and the lower
federal courts have both implicitly and explicitly recognized the
Sixteenth Amendment's authorization of a non- apportioned direct income
tax on United States citizens residing in the United States and thus the
validity of the federal income tax laws as applied to such citizens. See,
e.g., Brushaber v. Union Pacific Railroad Co., 240 U.S. 1, 12-19, 36
S.Ct. 236, 239-42, 60 L.Ed. 493 (1916); Ward, 833 F.2d at 1539; Lovell
v. United States, 755 F.2d 517, 519 (7th Cir.1984); Parker
v. Commissioner, 724 F.2d 469, 471 (5th Cir.1984); United States
v. Romero, 640 F.2d 1014, 1016 (9th Cir.1981). Indeed, in Lovell, one of
the more recent cases explicitly rejecting a Sixteenth Amendment argument
virtually identical to Becraft's position in this case, the court
sanctioned the pro se appellants for raising this and other federal tax
exemption claims on appeal. See Lovell, 755 F.2d at 520. If a claim is
sufficiently frivolous to warrant sanctions against a pro se appellant, it
unarguably supports the assessment of sanctions against a seasoned
attorney with considerable experience in the federal courts.
FN2. While Becraft devotes a good portion of his brief, petition
for rehearing, and reply to a discussion of the structure of the Internal
Revenue Service and the control numbers designated to income tax forms
pursuant to the Paperwork Reduction Act, he does so only to provide
support for his fundamental proposition that the Sixteenth Amendment does
not authorize a direct non-apportioned tax on citizens residing in the
United States. Hence, his entire legal argument hinges on the
constitutionality of directly taxing resident United States citizens.
Additionally, we note that much of Becraft's reply is also devoted to a
discussion of the limitations of federal jurisdiction to United States
territories and the District of Columbia and thus the inapplicability of
the federal income tax laws to a resident of one of the states. We are
somewhat perplexed as to why he included this contention in his reply
since he omitted any reference to this issue in the petition for
rehearing. In any event, as Becraft should be well aware, this claim also
has no semblance of merit. The Eleventh Circuit summarily rejected the
identical argument in United States v. Ward, 833 F.2d 1538, 1539 (11th
Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1576, 99 L.Ed.2d 891
(1988), a case in which Becraft served as the defendant's appellate
counsel.
In reaching the conclusion the Becraft's petition for rehearing is
frivolous, we rely not only on the fact that the argument is in direct
conflict with "firmly established rules of law for which there is no
arguably reasonable expectation of reversal or favorable modification,"
McDougal v. Commissioner, 818 F.2d 453, 455 (5th Cir.1987), but also on
the fact that this wholly meritless claim was pressed in a petition for
rehearing after this court had already summarily rejected the claim and
characterized it as having no basis in law. Thus, the result of the
petition for rehearing was even more obvious than the initial appeal.
Indeed, it is beyond our comprehension that a competent attorney,
which Becraft certainly is, could harbor a good faith belief that this
panel or the court sitting en banc would reconsider the rejection of
Nelson's claim of federal tax exemption. While a finding of bad faith is
not necessary to impose sanctions under Fed.R.App.P. 38, see Coghlan, 852
F.2d at 814-815 (bad faith not required element of imposition of sanctions
under rule 38); Braley v. Campbell, 832 F.2d at 1512 (finding of
subjective bad faith unnecessary to impose sanctions under Rule 38);
Grimes, 806 F.2d at 1454 ("The purpose of Rule 38 ... is to induce
litigants to conform their behavior to the governing rules, regardless of
their subjective belief."), the fact that Becraft likely filed the
petition for hearing absent a good faith belief of its justification
contributes to our strong conviction that Becraft's conduct warrants the
imposition of sanctions. See Coghlan, 852 F.2d at 814 ("Bad faith may
aggravate the circumstances justifying sanctions....")
Moreover, we believe that Mr. Becraft's litigation record in the
federal appellate courts demonstrates the necessity of sending a message
to Becraft that frivolous arguments will no longer be tolerated. Our
research reveals that we are not the first appellate court in which
Becraft has raised this patently frivolous Sixteenth Amendment claim. In
Ward, a case in which Becraft served as defendant's appellate counsel, see
supra, n. 1, the Eleventh Circuit characterized as "utterly without merit"
the identical argument raised by Becraft here regarding the applicability
of the federal tax laws to resident United States citizens. 833 F.2d at
1539. Moreover, Becraft also advanced the patently frivolous claim in
Ward that the federal income tax laws apply only to residents of federal
territories and the District of Columbia. Id.; see supra, n. 1.
Unfortunately, Becraft's record of advancing wholly meritless
claims does not end with Ward. United States v. Stahl, 792 F.2d 1438 (9th
Cir.1986), cert. denied, 479 U.S. 1036, 107 S.Ct. 888, 93 L.Ed.2d 840
(1987), and United States v. Sitka, 845 F.2d 43 (2d Cir.), cert. denied,
--- U.S. ----, 109 S.Ct. 77, 102 L.Ed.2d 54 (1988), appeals in which
Becraft served as co-counsel and counsel respectively, addressed the claim
that the Sixteenth Amendment was never properly ratified and that
therefore the federal courts lack jurisdiction to entertain tax evasion
prosecutions. Needless to say, both courts soundly rejected this
contention. See Sitka, 845 F.2d 44- 47; Stahl, 792 F.2d 1438-1441.
Becraft's record in the federal courts thus exhibits an alarming
willingness to utilize appellate court resources to adjudicate claims that
a competent attorney should realize have no reasonable possibility of
success.
Based on Becraft's conduct in this case and prior cases, it is
clear to us that Becraft has no appreciation for the limited nature of the
federal judicial resources upon which all aggrieved individuals depend for
vindication of statutory and constitutional rights. For if he did have
respect for the extreme demands constantly placed on the court's
resources, he would not continue to use the courts as testing ground for
revisionist historical theories that have absolutely no basis in law.
While we are in general accord with the Seventh Circuit's
statement that "[c]riminal defendants and their lawyers must abide by the
rules that apply to other litigants, ... including the principle that
litigating positions must have some foundation in existing law or be
supported by reasoned, colorable arguments for change in the law,"
Wisconsin v. Glick, 782 F.2d 670, 673 (7th Cir.1986) (citation omitted),
we are hesitant to exercise our power to sanction under Rule 38 against
criminal defendants and their counsel. With respect to counsel, such
reluctance, as evidenced by the absence of authority imposing sanctions
against defense counsel, [FN3] primarily stems from our concern that the
threat of sanctions may chill a defense counsel's willingness to advance
novel positions of first impression. Our constitutionally mandated
adversary system of criminal justice cannot function properly unless
defense counsel feels at liberty to press all claims that could
conceivably invalidate his client's conviction. Indeed, whether or not
the prosecution's case is forced to survive the "crucible of meaningful
adversarial testing" may often depend upon defense counsel's willingness
and ability to press forward with a claim of first impression. See United
States v. Cronic, 466 U.S. 648, 656, 104 S.Ct. 2039, 2045, 80 L.Ed.2d 657
(1984). Moreover, because of the significant liberty deprivation often at
stake in a criminal prosecution, courts generally tolerate arguments on
behalf of criminal defendants that would likely be met with sanctions if
advanced in a civil proceeding. See Glick, 782 F.2d at 673.
FN3. Our research did not reveal any case in which the court has
imposed sanctions on defense counsel under Rule 38 and only one case in
which sanctions were assessed against a criminal defendant. See Glick,
782 F.2d at 673-74 (state criminal defendants sanctioned for bringing
frivolous appeal after unsuccessfully attempting to remove their state
criminal prosecutions to federal court).
Notwithstanding the legitimate countervailing concerns that
accompany imposing sanctions against defense counsel, we nevertheless
believe that when a criminal defense counsel reasserts an argument in a
petition for rehearing which was summarily rejected on direct appeal, and
which flies in the face of unambiguous, firmly established law, that
attorney exposes himself to the imposition of sanctions under Rule 38.
Accordingly, we order Becraft to pay $2,500 in damages. With so many
worthy claims waiting to be adjudicated, we are not obliged to stand by
silently when an attorney repeatedly breaches his professional
responsibility to the court
We are fully confident that our assessment of sanctions for a
frivolous petition for rehearing in this case will have no deterrent
effect on litigants and attorneys' advancement of reasonably based novel
positions in the future. We sincerely hope, however, that this assessment
will deter Becraft from asking this and other federal courts to expend
more time and resources on patently frivolous legal positions. [FN4]
FN4. We wish to emphasize that our decision in this case should
not be read as authority for imposing sanctions against a criminal defense
counsel for a frivolous direct appeal following conviction; we express no
opinion on whether or in what circumstances Rule 38 sanctions may be
imposed for such an appeal.
The Clerk of this Court shall enter a judgment in the sum of
$2,500 in favor of the United States of America and against Lowell
H. Becraft, Jr.
APPENDIX A
ORDER
Counsel for the Appellant Lowell H. Becraft, Jr., 209 Lincoln
Street, Huntsville, Alabama 35801, is ordered to show cause why damages in
the sum of $2,500 should not be imposed upon him for filing a frivolous
petition for rehearing and suggestion for rehearing en banc.
The reasons for the issuance of this order to show cause are as
follows:
1. Appellant Kenneth Nelson was convicted in the United States
District Court for the District of Nevada on three counts of failure to
file income tax returns in violation of 26 U.S.C. s 7203.
2. By memorandum disposition dated March 22, 1989, this court
affirmed the judgment of the district court.
3. On appeal, Nelson claimed, inter alia, that the district court
erred in refusing to give his proposed jury instructions concerning his
theory that a United States citizen is not a "person" and that his wages
were not "income" within the meaning of the Internal Revenue Code.
4. In affirming Nelson's conviction, this court emphasized that
his construction of the Internal Revenue Code has been consistently
rejected by federal courts and had no basis in law.
5. On April 5, 1989, Lowell H. Becraft, Jr., as attorney for
Appellant Nelson, filed with this court a petition for rehearing and
suggestion for rehearing en banc.
6. In this petition, Nelson realleges the inapplicability of
federal tax laws to income earned by United States citizens.
7. Counsel for Nelson acknowledges in his petition that this issue
had been presented to, and rejected by, this court in its memorandum
disposition of March 22, 1989.
8. While the court did not impose sanctions in its memorandum
disposition, the issue of the applicability of federal tax laws to this
case was and is patently frivolous as it finds no support in the Internal
Revenue Code and ignores clear legal precedent. See Malhiot
v. S. Cal. Retail Clerks Union, 735 F.2d 1133, 1137 (9th Cir.1984),
cert. denied, 469 U.S. 1189, 105 S.Ct. 959, 83 L.Ed.2d 965 (1985) (appeal
frivolous when "result is obvious or [when] the claims of error are wholly
without merit").
9. Frivolous petitions such as this impose an unjustified burden
on the federal judiciary. To raise the same frivolous contention on a
petition for rehearing and suggestion for en banc review forces this court
to consider sanctions in order to assure that its responsibilities are not
hindered by wasteful, time-consuming petitions requiring consideration by
not only a three- member panel of the court but also the entire court
because of the en banc suggestion.
10. Pursuant to F.R.App.P. 38, this court has the authority to
impose sanctions to deter frivolous appeals and to conserve federal
judicial resources. See, e.g., First Investors Corp. v. American Capital
Financial Services, Inc., 823 F.2d 307, 310 (9th Cir.1987); Trohimovich
v. Commissioner, 776 F.2d 873, 875-76 (9th Cir.1985); Nunley
v. Commissioner, 758 F.2d 372, 373 (9th Cir.1985) (per curiam); Stites
v. United States Government, 746 F.2d 1085, 1086 (5th Cir.1984) (per
curiam).
Therefore, Lowell H. Becraft, Jr., is ordered to show cause as set
forth in this order.
All documents in opposition to this order must be filed with the
Clerk of this court within 20 days from the date of the filing of this
order.
The Clerk of the Court shall serve a copy of this order upon
Mr. Becraft by United States mail and shall furnish counsel for appellee
with a copy of this order.
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The "flag of peace", the "UCC" and
the "Refused for fraud" Idiot Legal Arguments!
http://jhardin.home.mindspring.com/cases2.htm
Tax Issues
Dear Friends,
There are lots of current, popular tax issues in the movement which are groundless.
One argument is that when the tax authorities (or even anybody else in government)
contacts a patriot, the patriot should respond with the "UCC" argument
and reject all communications, including pleadings from a federal court, by
asserting "Refused for fraud." This particular argument is surpassed by the
flag of peace issue; here the argument is that, since battleships fly fringed
flags and this indicates their jurisdiction, this same legal principle applies to courts.
I have yet to find any legal authority which upholds such a view. Of course,
the "nom de guerre" issue still today has its followers, but hopefully they are declining.
Have the courts considered these and other popular issues? The answer lies
in a wide variety of cases. I strongly suggest that patriots read these cases
and decide whether there is any value in continuing to follow these arguments.
Larry Becraft
-------------------------------
Hi Larry
I suggest that patriots check these cases out at: