🚀 go-pugleaf

In article <OtESlmt9#GA.248@cpmsnbbsa05>,
  "Joey Smith - Returns!" <nospam@nospam.com> wrote:
> Yes, Becraft is a *hero* to the other deadbeats, just like Lloyd Long.
Ask
> any *protestor* about Lloyd Long and you will NOT hear that Long lost
his
> civil case and has held liable for taxes -- truth is, tax protestors
believe
> what they want to believe and ignore the rest. If they want to believe
the
> world is flat, they ignore pictures from space showing it is round as
a
> "government fabrication".

It is interesting that you emphasized the word NOT. Be so kind as to
provide the evidence supporting your belief that he DID lose his civil
case; then, there need be no more discussion on the matter.

Noah
>
> Useless to try to convince the protestors -- they are just deadbeats
and
> will always come up with some reason not to pay, whether it is federal
> taxes, state taxes, child support, whatever.
>
> All you can do is warn the innocent people about these fraudulent
protestor
> theories.
>
> JS
>
> > >
> > > ***** ***** ***** *****
> > >                               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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> > Share what you know. Learn what you don't.
>
>

--
"Thank God, we're not getting ALL the Government
we're paying for; otherwise, we'd all be broke."


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