Tag Archives: sovereign citizen

All Pro Appellate Judge Stumbles at Trial – Update for October 25, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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I INSTRUCT THE JURY TO DISREGARD THE SMELL

There’s an old saying among trial attorneys that goes something like for the judge to instruct the jury to disregard something very prejudicial it has just seen or heard is “like throwing a skunk into the jury box and then telling the jury to disregard the smell.”

skunk171025The smell in a decision from the 7th Circuit earlier this week was just too intense. What makes the case even more noteworthy is that the trial judge who crossed the line was not just some small-town hack put on the bench as a reward for political loyalty, but rather Circuit Judge Richard Posner, arguably the 7th Circuit’s MVP for the past 25 years.

Judge Posner was taking a turn in the trenches, as circuit judges do from time to time, just to experience some of the rough-and-tumble which they are called upon to referee up on the appellate bench. The plaintiff was Hakeem El-Bey, a self-described Moorish national, who was running the usual tax scam in which he set up an eponymous trust, naming himself as the trustee and fiduciary, and then claimed $300,000 refunds from the IRS. (There are finer points to the scheme, but we’ll leave them out, because they might just encourage illegality).

The IRS resisted his demands, but someone at the Service finally pushed the wrong button, and a check for $300,000 got sent to Hakeem, who quickly spent it. The blunder happened again a few months later, and Hakeem figured he was on Easy Street.

Alas, it was not to be. The IRS Criminal Division caught up with him, and in short order Hakeem was indicted for mail fraud and making false claims to the IRS.

Hakeem represented himself at trial, an idea the foolishness of which we probably do not have to explain. Judge Posner permitted Hakeem his blunder, but appointed a standby attorney, Gabriel A. Fuentes.

sovereigncitizen161125Hakeem followed the tax protester/sovereign citizen script to the letter, filing pretrial motions related to admiralty law, the Uniform Commercial Code, and the Federal Rules of Civil Procedure. Judge Posner excluded Hakeem’s sovereign citizen evidence, and warned Hakeem that if he brought it up, the judge might exclude him from the courtroom, too, and let attorney Fuentes carry the defense load/

Some background here: the IRS likes to say it depends on voluntary compliance with the tax laws. And of course it does, just like the state police depend on voluntary compliance with the traffic laws. There’re just not enough cops to stop everyone. But Hakeem and his fellow tax protest travelers like to argue that “voluntary compliance” means taxpayers send in their checks and returns out of the goodness of their hearts. The argument has more holes than a swiss cheese factory, but that inconvenient fact does not deter the Hakeems of the world.

At trial, Hakeem cross-examined an IRS representative on the matter, asking her whether federal tax law compliance was voluntary. She responded:

The tax laws are based on individuals taking their information, voluntarily putting them on the tax returns, and mailing them to the IRS. However, the law states if you don’t do that the IRS can come in and file for you because the law states you file and pay your income tax.

aha171025Hakeem figured this was his “A-ha!” moment. He argued with the witness that “you just contradicted yourself. Because in one case you are saying that the IRS is saying filing taxes is voluntary compliance?” At this point, Judge Posner had had his fill:

THE COURT: Look, paying taxes is not voluntary.
THE DEFENDANT: That’s what it says here. I’m not saying it.
THE COURT: Come on.
THE DEFENDANT: Judge, I’m not saying it.
THE COURT: You don’t pay your tax, you go to jail.
THE DEFENDANT: Judge, I’m just saying what they are saying what they have—
THE COURT: Payment of taxes to the government is not voluntary.
THE DEFENDANT: Okay. Judge, so you brought in from behind the law.
THE COURT: Just—look, I’m going to kick you out if you keep on with this nonsense. You understand that? You can go watch the case from another room.
THE DEFENDANT: Okay. I am through.
THE COURT: Don’t you say that tax payment is voluntary.

The jury heard it all.

The government, with one eye on an appeal, was concerned. The next day, before the jury entered the courtroom, the AUSA told the judge “that some of what happened yesterday may have been potentially prejudicial to the defendant … importantly, perhaps, [it] has left a misimpression with the jury in certain respects.” Judge P agreed, and instructed the jury that it should ignore the malodorous exchange of the day before:

After the jury entered the courtroom, the court explained, “You don’t have to worry about the exchanges that Mr. El-Bey and I have had. And I don’t want you to feel any hostility to Mr. El-Bey just because I got annoyed occasionally.” He then proceeded to read parts of the transcript of the previous day’s exchange back to the jury, including his exchange with Hakeem on “voluntary compliance.” The judge concluded

When I said: If you don’t pay taxes you go to jail, what I was simply saying was you must pay taxes, and if you don’t pay taxes it’s criminal and you can be sent to jail. I was not talking about Mr. El-Bey, because he isn’t charged with tax evasion.

Unfortunately, the judge was not quite done. When he was reading the jury instructions, Judge Posner went off-script, ignoring the written instruction on materiality, and ad libbing instead:

One [element] is that … the scheme to defraud involved a materially false or fraudulent pre-tense, representation, or promise. That’s very important, that notion of materiality… Little white lies, those are not material falsehoods. They don’t—I mean, they may embarrass you when it’s discovered, but they’re not—that’s not wrongful conduct. It’s when, with specific reference to our case, if you—if tell—if you tell the Internal Revenue Service a lie which is capable of getting them to do something which they would never do if they knew the truth, namely, give you $300,000 to which you’re not entitled, that is a material falsehood. That’s fraud. And that is an element of the charges.

swift171025On appeal, Hakeem complained that Judge Posner had been biased against him, and thus violated his due process right to a fair trial. In the 7th Circuit, that’s like accusing Taylor Swift of lip-syncing. But the 7th had to reluctantly that Hakeem had a point:

It is clear from the transcript of the trial court proceedings that El-Bey was a difficult litigant. He filed numerous irrelevant motions, disregarded court instructions, and often inappropriately interrupted the district court to express disagreement and dissatisfaction. Nonetheless, we agree with El-Bey that the district court’s remarks during cross-examination of the government’s first witness conveyed bias regarding his dishonesty or guilt. The district court interrupted El-Bey at the beginning of his cross-examination, stating, “Look, paying taxes is not voluntary.” When El-Bey noted that he was only reading what the document stated, the district court remarked “Come on”—a statement laced with skepticism. The district court continued with further remarks in the presence of the jury reflecting upon El-Bey’s dishonesty or guilt, stat-ing, “You don’t pay your tax, you go to jail,” and “I’m going to kick you out if you keep on with this nonsense…” The purpose of the comments cannot eliminate the bias conveyed to the jury by the remarks here. The court’s statements that one who does not pay taxes goes to jail and that El-Bey was acting in a nonsensical manner indicated bias about El-Bey’s guilt or honesty to the jury.

And if that were not enough, the Circuit said, Judge Posner did it again when he ad libbed instructions that “conveyed to the jury that El-Bey was guilty by concluding that El-Bey’s receipt of the checks and money made him guilty of mail fraud and making false claims.”

The appellate court had no doubt about Hakeem’s culpability, noting that “there is more than enough evidence of El-Bey’s guilt. But in the end, that did not matter. “We must… conclude that the unfairness in the trial requires reversal,” the court said. “Any other holding would constitute the adoption of the principle that a defendant the court thinks is obviously guilty is not entitled to a fair trial.”

Hakeem will be retried. Judge Posner will probably not be there.

United States v. El-Bey, Case No. 15-3180 (7th Circuit, October 24, 2017)

– Thomas L. Root

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6th Circuit Says “There’s Crazy, and Then There’s Crazy Like A Fox” – Update for September 14, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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NUTZPAH

repo170915The facts of the case hardly seem like a federal crime. Repo man Garry Valentine showed up at Airiz Coleman’s house in Youngstown, Ohio, to repossess Airiz’s truck for nonpayment of the note. Airiz took exception, and – as the court drily puts it – “pointed a handgun approximately six or seven inches from Valentine’s face and threatened to kill him. Defendant’s wife intervened and Valentine was able to call the police.” The police came and arrested Airiz, seizing some cheap 5-shot revolver.

So far, it seems unremarkable, the kind of thing the local cops would handle. Airiz would be charged with some kind of assault, spend some time in jail, get bailed out, cop a plea and get maybe 6 months. Except, of course, it turns out Airiz had a prior felony, so the feds – who should have better things to do in Youngstown – picked up the case, charging Airiz with being a felon in possession of a firearm.

sovereigncitizen161125This is where the case gets interesting. While awaiting trial, Airiz apparently became acquainted with the Sovereign Citizen movement. We’ve described it before. The sovereign citizen movement is a loose grouping of litigants, commentators, tax protesters, financial-scheme promoters, and assorted whackos, who take the position that they are answerable only to their particular interpretation of the common law and are not subject to the United States Code or federal courts, although some of them have great affection for the Uniform Commercial Code (as they understand it to be, which it is not). Others prefer admiralty law. They do not recognize United States currency, although they freely spend it, and maintain that they are “free of any legal constraints.” They have special enmity for the federal income tax.

Airiz became an eager convert. At his arraignment, he acknowledged his but challenged the court’s jurisdiction over him, arguing that the government was “trying to charge him with” a “commercial crime” and that the United States could not be the victim of a commercial crime, whatever that meant. Airiz demanded of the magistrate judge to know if he was forcing Airiz “to contract,” and he referred to himself as a “flesh and blood living being.” He claimed that his detention on “U.S. soil” was unconstitutional.

When his public defender tried to quit because Airiz was “combative” and “confrontational,” Airiz told the court that he was present “on special appearance, as a third-party intervenor” and claimed that he was a “beneficiary and executor to the legal estate of the decedent.” He said he had surrendered his birth certificate “to the Court for set-off, settlement.” He contended that he was not a corporation, an estate, or a legal fiction, but rather, was “a living man… living private on the land.” He “authorized” the court “to settle and close the account, case, constructive trust” and again argued the court lacked “jurisdiction” and referenced his “copyright.” The district court quickly came to see the public defender’s point, and appointed other counsel.

crazy170915Several days before trial, Defendant repeated his jurisdiction claim, explaining again that he is “a living man… not a ‘corporate fiction’… [who] never signed any ‘Contract’ with the Public Defender’s Office.” He also appointed “Respondent: James S. Gwin” (who was the District Judge hearing the case) “as Trustee to settle and close” the case. Airiz signed the notice as his own “Authorized Representative” and listed an address in “Warren, Ohio Republic,” with a zip code in brackets. Airiz loaded up the record with an Affidavit of Ownership, Declaration of Nationality, Certificate/s of Titles, and Birth Certificates, and declared himself to be a “Moorish American National.” Using a favored sovereign citizen artifice of declaring a copyright in his own name, Airiz demanded payment of “1,000,000,000.00 PER HOUR UPON OCCURANCE [sic]” when anyone used his name.” Finally, for good measure, Airiz attached a proposed “Order of Dismissal With Prejudice” pursuant to “Rule 12(b)(1)(2) of the Federal Rules of Civil Procedure” alleging lack of subject-matter and in personam jurisdiction.

Trial with his new counsel did not go well. Airiz claimed that he did not want to testify at trial, but his new attorney insisted he could not argue effectively unless Airiz testified as to his view of what happened. Airiz said he and his wife “didn’t want to argue for a corporation,” and that was why he “tried to be respectful” and said that he wasn’t the defendant, but a man. He was convicted.

At sentencing, Airiz was starting to get it. He painted himself as having overcome a tough childhood to become a good family man, and said he had written a play that a record company was about to produce. He said that he had a job lined up in Hollywood with Charlie Sheen. He said he had saved another inmate’s life while jailed awaiting trial. He told the court he “never meant to dishonor anyone in this courtroom” and that he “always wanted to provide for my family.”

The district court sentenced him to 36 months, one month beneath the bottom of the sentencing range.

stupidity170915On appeal, Airiz somehow ended up being represented by Washington, D.C., megafirm Sidley Austin. His appellate counsel did just about the only thing it could do. It complained that its client was obviously nuts, and that the district court should have had his head examined. Or, in legalese, it argued that Airiz’s “bizarre statements over the course of multiple hearings and trial, and his interaction with his counsel—as reported by those attorneys—triggered reasonable cause to believe” that he did not understand the nature and consequences of the criminal proceedings and lacked the ability to consult with counsel to prepare his defense.

Airiz offered a few examples: He said the “first tell-tale sign was his ‘stringing together legal jargon that made no sense’,” such as saying he was

“here on special appearance, third-party intervenor, okay, who was injured by this action, and beneficiary and executor to the legal estate of the decedent” He also believed that he could authorize the district court “to settle and close” the case and that he could “decline any more offers of imprisonment, fines, fees, or any other penalties.” Second, Defendant argues that he “utterly fail[ed] to grasp that the jury had convicted him of a federal criminal offense[.]” At the hearing to remove Mack as counsel, Defendant repeatedly insisted that his “debt” had been taken care of, and the court was therefore required to release him from custody. Third, Defendant claims that his “abnormal splintering of the self” should have raised a red flag. At the hearing on his first attorney’s motion to withdraw, Defendant characterized himself as the defendant’s “surety,” and at trial, as his “authorized representative.” In his objections to the presentence report, Defendant claimed that he was not a defendant, but “a natural living man” (and not a U.S. citizen). Fourth, he displayed “a grandiose belief in his own superior knowledge,” via his “belligerence with the prosecutor while being cross-examined at trial.” In particular, Defendant confusingly discussed his 2008 felony convictions, first claiming that he prevailed, then that he had taken a plea, and finally claiming that he had done so “unconsciously.” He also read a “revised” passage from the Bill of Rights—his version of that document. Fifth, although “fairly lucid” at sentencing, Defendant allegedly made “lofty claims that suggested he was not fully connected to reality.” This included his assertion that he was writing a play and had a “guaranteed job on anger management in L.A. with Charlie Sheen.”

In fact, Airiz argued, the district court itself twice commented that Defendant was not making any sense.

chutzpah170915It was a pretty gutsy move: act nuts with a side of chutzpah. Call it “nutzpah.” Spout nonsense at trial, and then appeal on the grounds that the court should have known you were acting crazy. But earlier this week, the 6th Circuit refused to buy it. There was nothing that unusual about Airiz’s “meritless rhetoric,” which was “frequently espoused by tax protesters, sovereign citizens, and self-proclaimed Moorish-Americans.” The jurisdiction claims, the “Moorish-American” business, the name copyright, the “third-party intervenor” status: been there, the Court said. Done that. Have the Sovereign Citizen t-shirt.

The 6th noted that two other circuits had rejected the claim that professing to be a sovereign citizen was “an expression of incompetency,” in the absence of mental illness or uncontrollable behavior. A competency hearing is not necessary where the only evidence of incompetence is “the unusual nature of the defendant’s beliefs.”

tshirt170915The appeals court held that Airiz showed that he understood the criminal nature of the proceedings, as reflected by the fact that he challenged the court’s jurisdiction. Airiz “demonstrated his ability to make legal arguments, albeit atypical ones. He drafted a detailed affidavit, provided state documents, and cited case law, statutes, and constitutions. His trial testimony was designed to counter incriminating facts.” He cooperated with the Probation Officer in preparation of the presentence report. But “perhaps most telling” was Airiz’s “articulate, passionate allocution” begging the court to return him to his family. The Court said that Airiz’s “swan song at sentencing reflects a carefully crafted attempt to present himself as a virtuous man, good father, and community leader, a character very different than the one presented at earlier stages of the proceedings.”

swan170915Yes, but how about Airiz’s claim of a Hollywood job offer? Was that not evidence of “grandiose and possibly delusional thinking.” The 6th Circuit thought not: “Given certain similarities between his behavior and Charlie Sheen’s behavior (both in real life and on television), it could also have been an attempt at rather ironic humor.”

United States v. Coleman, Case No. 16-3972 (6th Cir., Sept. 13, 2017)

– Thomas L. Root

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