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Law... You don't need no
steenking law.
OnryAnRkst wrote:
In the Simkanin case,
for example, Judge McBryde told the jury they didn't need to see
the law:
"Several times the jury had sent
valid questions to the court. One of those questions was, 'Please give us a full wording of
the law(s) that the defendant allegedly broke that indicate he is guilty of a crime.' The judge
refused to provide the law, telling the jury they didn’t need to concern themselves with
that."
esenter wrote:
Hey, Onry, care to quote the actual
transcript of the case to prove this
happened at Simkanin's trial
instead of quoting some goofball "court observer"?
It ain't there. This
is a lie.
Dale Eastman wrote:
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VOL IV, 7
2 Members of the jury, I have your second and third notes,
3 which are worded as follows: The second note, please give us
4 the full wording of the law, and then it has a parentheses
5 after it with an "S" in it, that the defendant allegedly broke
6 for the first 12 indictments. Signed by the foreperson.
7 And then a third note: What are the three points that
8 must be met for Counts 13 through 27. Signed by the
9 foreperson. Both of them dated today.
10 Now, in answer to your second note, I'm reminding you of
11 the following instructions I gave you earlier. Counts 1
12 through 12 of the indictment charge the Defendant, Richard
13 Michael Simkanin, willfully failed to collect, account for, and
14 pay over taxes due and owing to the United States of America
15 from the wages of employees of Arrow Custom Plastics for
16 certain tax quarters. Title 26, United States Code, Section
17 7202, makes it a crime for any person who is
required to
18 collect, to account for, or to pay over any tax to willfully
19 fail to do so.
20 The exact wording of the part of Title 26, United States
21 Code, Section 7202, that is pertinent to your
decision is as
22 follows: "Any person required under this title to collect,
23 account for, and pay over any tax imposed by Title 26, United
24 States Code, who willfully fails to collect or truthfully
25 account for and pay over such tax shall be guilty of a crime."
U.S. DISTRICT COURT
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Dale Eastman wrote:
Note the substantive LACK of a correct
answer showing the jury exactly which
of many tax laws that are
ALLEGED to REQUIRE "ANY PERSON" to collect.
Where is the proof of
required duty?
esenter
wrote:
The judge did give the "exact wording"
of the law just as the jury asked. See line 20.
So the goofball "court
observer" was wrong and put a biased spin on the issue.
Such disengenious spin. Such B.S. Let us analyze the
"exact wording"
20 The exact
wording of the part of Title 26, United States
21 Code,
Section 7202, that is pertinent to your decision is as
22 follows: "Any person
required under this title to collect,
23 account for,
and pay over any tax imposed by Title 26, United
24 States Code,
who willfully fails to collect or truthfully
25 account for
and pay over such tax shall be guilty of a crime."
Are you going to attempt to tell
all the lurkers that 7202 as quoted in lines 22, 23, 24, and 25
actually "require" "any person" to "collect, account for, and pay over
any tax imposed by Title 26"? I see absolutely NO imposition, NO proof of imposition, and NO proof that if such imposition
of tax exists, that it applies to the accused.
To make it easy for the lurkers,
let us pretend that it was what I call the "whiskey" tax that the
accused is alleged to have not paid. Let's look at this
"full wording of the law" from that perspective.
3 which are
worded as follows: The second note, please give us
4 the full
wording of the law, and then it has a parentheses
5 after it with
an "S" in it, that the defendant allegedly broke
6 for the first
12 indictments. Signed by the foreperson.
Access text of whiskey tax
here.
Opens in new window.
Doesn't that make it very clear,
what the law "imposes" the tax upon, and who the law "makes
liable". Why I would bet that if it was the "whiskey" tax the
accused is alleged to have willfully failed to "18 collect, to account
for, or to pay over", They would have trotted the "exact wording"
of statutes 26 USC 5001, 5005, 5002, et. al. right out to the jury.
esenter continued:
BTW, the required duty to withhold and
pay over the tax is in sections 3402 and 3403. Simkanin did not dispute these
requirements. His defense was based on his lack of
"willfulness". There
was no need to instruct the jury on something that Simkanin did not
dispute.
Ed Senter's B.S. about the "exact
wording of the law", shown as the B.S. it is above,
means I am not
going to search the transcript to prove him wrong regarding the
immediate statement above. He can find the part that proves him
right, and we'll go from there.
What I will do though, is point
out that the "requirements" are not what would have been
disputed. What would have been disputed is the "APPLICATION" of
the said "requirements" to Mr. Simkanin.
Subtitle C - Employment Taxes
CHAPTER 24 - COLLECTION OF INCOME TAX AT SOURCE ON
WAGES
Sec. 3402. Income tax collected at source
-STATUTE-
(a) Requirement of withholding
(1) In general
Except as otherwise provided
in this section, every employer
making payment of wages shall deduct and
withhold upon such wages
a tax determined in accordance with
tables or computational
procedures prescribed by the Secretary.
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Sec. 3403. Liability for tax
-STATUTE-
The employer shall be liable for the
payment of the tax required
to be deducted and withheld under this chapter, and
shall not be
liable to any person for the amount of any such
payment.
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Sec. 3401. Definitions
-STATUTE-
(a) Wages
For purposes of this chapter, the term
''wages'' means all
remuneration (other than fees paid to a public
official) for
services performed by an employee for his employer,
including the
cash value of all remuneration (including benefits)
paid in any
medium other than cash; except that such term shall
not include
remuneration paid -
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(c)
Employee
For purposes of this chapter, the term
''employee'' includes an
officer, employee, or elected official of the United
States, a
State, or any political subdivision thereof, or the
District of
Columbia, or any agency or instrumentality of any
one or more of
the foregoing. The term ''employee'' also
includes an officer of a
corporation.
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(d)
Employer
For purposes of this chapter, the term
''employer'' means the
person for whom an individual performs or performed
any service, of
whatever nature, as the employee of such person,
except that -
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In tweaking this page, I looked further
into the transcript. What follows is what I should have answered
the first time.
OnryAnRkst wrote:
In the Simkanin case,
for example, Judge McBryde told the jury they didn't need to see
the law:
"Several times the jury had sent
valid questions to the court. One of those questions was, 'Please give us a full wording of
the law(s) that the defendant allegedly broke that indicate he is guilty of a crime.' The judge
refused to provide the law, telling the jury they didn’t need to concern themselves with
that."
esenter wrote:
Hey, Onry, care to quote the actual
transcript of the case to prove this
happened at Simkanin's trial
instead of quoting some goofball "court observer"?
It ain't there. This
is a lie.
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VOL IV, 9
24 THE COURT: Okay. We have what the juror has
25 designated as its number four note, which reads -- the jury,
U.S. DISTRICT COURT
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VOL IV, 10
1 which reads: Since no proof has been made that the defendant
2 and his employees are in an occupation listed in those 7,000,
3 are we to conclude that they are, in fact, not in that 7,000,
4 or do we need to read all 7,000 to see what the defendant was
5 referring to, and, in fact, wasn't listed in the 7,000.
6 The attorneys have my proposed response, which gives the
7 text of the note. And the proposed response is: In answer to
8 your note, you're instructed that you do not need to concern
9 yourself with whether defendant's employees are in an
10 occupation listed in those 7,000. And I put in quotes "listed
11 in those 7,000." The Court has made the legal determination
12 that within the meaning of Title 26, United States Code,
13 Section 7202, "during the years 2000, 2001,
2002, Arrow Custom
14 Plastics, through its responsible officials, had a legal duty
15 to collect by withholding from the wages of its employees, the
16 employees' share of social security taxes, Medicare taxes, and
17 federal income taxes, and to account for those taxes and pay
18 the withheld amounts to the United States of America." You
19 are to follow that legal
instruction without being concerned
20 whether there might be certain
employers who are not required
21 to collect and withhold taxes from
the wages of their
22 employees.
<snip> |
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VOL IV, 11
<snip>
24 THE COURT: Okay. Does the defendant have any
25 objection to the proposed response?
U.S. DISTRICT COURT
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VOL IV, 12
1 MR. McCOLL: Yes, Your Honor, we do. We would, first
2 of all, object that there was
insufficient evidence to prove
3 the Court's legal statement beginning with "the Court has made
4 a legal determination that,"
et cetera, down through the word
5 "America."
6 And, secondly -- and it amounts to
an instructed verdict
7 of guilty by instructing them on
that point since that is the
8 disputed issue and the basis for
his defense.
9 Third, we would object to expanding the years as requested
10 by the government because that was not in response and not
11 requested by the jury in their note. It goes beyond that and
12 is therefore not responsive.
13 THE COURT: Okay. I'll overrule
those objections.
<snip>
20 THE COURT: Does the defendant have any objection to
21 that?
22 MR. McCOLL: Yes, Your Honor. The defendant has
23 asked that it be read in open court, and we do have one
24 additional objection I forgot to mention to the Court.
25 THE COURT: Okay.
U.S. DISTRICT COURT
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VOL IV, 13
1 MR. McCOLL: At the bottom it says, "You are to
2 follow that legal instruction without about being concerned
3 whether there might be certain employers who are not required
4 to collect and withhold the taxes." We would ask the Court,
5 under Rule 201 of the
Federal Rules of Evidence, that the
6 evidence show that there are
certain employers. It was
7 unrebutted in the evidence that
there are certain employers who
8 are not required to collect and
withhold. So that would be a
<snip>
21 THE COURT: Okay. I have the number four note from
22 the jury, and I have a response that I'm going to read to you
23 at this time.
24 Members of the jury, I have your note which is worded as
25 follows: Four. Since no proof was
given that the defendant
U.S. DISTRICT COURT
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VOL IV, 14
1 and his employees were in an
occupation listed in those 7,000,
2 are we to conclude that they are in
fact not in that 7,000, or
3 do we need to read all 7,000 to see
what the defendant was
4 referring to and, in fact, wasn't
listed in that 7,000. Signed
5 by the foreperson and dated today.
6 Now, in answer to your note: You
are instructed that you
7 do not need to concern yourself
with whether defendant's
8 employees are in an occupation
"listed in those 7,000." The
9 Court has made the legal
determination that within the meaning
10 of Title 26, United States Code, Section 7202, during the years
11 1997, 1998, 1999, 2000, 2001, and 2002, Arrow Custom Plastics,
12 through its responsible officials, had a legal duty to collect,
13 by withholding from the wages of its employees, the employees'
14 share of the social security taxes, Medicare taxes, and federal
15 income taxes, and to account for those taxes and pay the
16 withheld amounts to the United States of America. You are to
17 follow that legal instruction
without being concerned whether
18 there are certain employers who
are not required to collect and
19 withhold taxes from the wages of
their employees.
<snip> |
Part of the transcripts of the Simkanin trial: Dk_302.pdf
67kb.
Since the site I downloaded from no longer has it, you are stuck with
the copy I am posting.
I would prefer to link to somebody elses. Oh well.
Anyone who knows another site with this file, Dk_302.pdf, please let me know.
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