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Many Issues -- Many Distractions
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One Problem -- One Solution
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"A truth's initial commotion is directly proportional to how deeply the lie was believed. When a well-packaged
web of lies has been sold gradually to the masses over generations, the truth will seem utterly preposterous and
its speaker, a raving lunatic."
--Dresden James
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| To open a criminal case, the District Attorney must go before a Grand Jury and present all his one-sided
claims of alleged illegal activities. The Grand Jury is faced with two questions. Is there enough evidence of illegal
activities to warrant the individual defending himself in court against the charges? And, if this individual was left
alone, will he continue to break the law? If the Grand Jury decides "yes" to both questions, then a criminal indictment
is handed down. This Indictment usually but not always results in an arrest warrant being issued and signed by a federal
magistrate or judge. This is the Arrest Warrant filed by the Department of Justice. |
click here
Arrest Warrant |
| This is the actual Criminal Complaint (Indictment) filed by the Department of Justice. It was first filed
in Federal District Court for East Tennessee, because that was the location of the IRS CID Agent who conducted the
investigation. It was later filed in District Court for Middle Florida District so the arrest could be made. |
click
here
Criminal Indictment |
Finally the prosecution got its stuff together enough to stage an Initial Appearance where I would go on
record with a plea. I was notified in writing on Thursday, 04/21, that I was to be arraigned on 04/27 in Knoxville, TN
on the charges and that I must be there. I met with my court-appointed attorney, Kim Tollison, before the hearing for
almost 2 hours, and we discussed such important issues as "representation BY attorney" versus the Constitutional guarantee
of "assistance OF counsel" and a "penalty statute" versus a "requirement statute." He was unfamiliar with both issues.
I discovered that his Public Defender Department handles a couple of income tax cases a year, and he himself has never
defended a client charged with breaking any income tax laws. Of course, neither have I. So we are going to be breaking
new ground for both us. The following is my recollection of what occurred in the courtroom.
When I showed up to the courtroom with my court-appointed attorney, we had agreed that we would claim that I could not plea
to an indictment that fails in several important details. My attorney was firm in not wanting to bring up any of those
details, believing strongly that today was not the day to deal with them. But he agreed that we would claim that we
believe that the indictment fails in several important elements and that I was claiming to be here "by Special Appearance"
so I would not be granting personum jurisdiction to the court when I was brought here under a failed indictment. While
I wanted to directly challenge the court's jurisdiction over me when the indictment failed, my attorney was VERY concerned
that if I addressed that issue today, the judge was going to be more prejudiced against me . But all I wanted to accomplish
today was to announce Special Appearance and object to personum jurisdiction, although a direct challenge to personum
jurisdiction and a proper airing of my claims about why the indictment failed would, I thought, result in the case being
dismissed. On the other hand, he claimed he had been with the Public Defender's Office in Knoxville for 18 years and he
was confident that this particular judge would exert all the judicial discretion he could to fight me on the issue if I
presented it today (my paraphrase, not his words). So we compromised and stated that I was here by Special Appearance because of the
defective indictment and that I could not render a plea to a failed indictment. Surprisingly, the magistrate judge admitted
that he knew nothing about "Special Appearances" but also indicated he would let that issue slide for the moment.
Then the judge looked at me and asked, "I have reviewed each line of the indictment with you and you have admitted that
you understand the charges against you. Why can you not enter a plea?" I answered, "Well, your Honor, I am not certain
which indictment I would be pleading to." This started some really bizarre exchanges.
The judge sat up and looked startled. "What do you mean which indictment?" I told him that I had received an indictment
and an arrest warrant from the judge in Orlando when I was brought before him. I also told him that I was just handed an
indictment by this court, and that they were clearly not the same. I asked him which indictment he wanted me to plead to.
He looked at me like he had no idea what I was talking about, and asked to see what I had been given in Orlando. I gave
it to him and he looked them over. "It does appear that these indictments are different. Do you have an explanation. Mr.
Dale?" (Frank M. Dale, Jr. is the Assistant US Attorney - AUSA - in these proceedings.) "I have no idea what he is
talking about, your Honor, but I have a copy of the indictment right here." The judge asked to see it, and then seemed to pronounce to
the courtroom in general, "And this indictment is different from both of the other two. What is going on here, Mr. Dale?"
The judge asked the courtroom clerk to give him the copy that was in the official court file, and she did. The judge quickly
announced that there were now four clearly different indictments before the court. There followed more than an hour of angry
courtroom exchanges. I have never heard of a judge rebuking an attorney so strongly. The AUSA hemmed and hawed and tried all
sorts of explanations, none of which the judge would accept.
For those of you unfamiliar with these issues, the AUSA gathers a Grand Jury and presents his side of the story. If the
Grand Jury agrees with this one-sided presentation that the charges seem logical and that there is evidence that the
charges are valid, it creates a formal document called an indictment, stating the specific details of the allegations.
Then the indictment is signed by the Foreman and the AUSA. This is the ONLY AUTHORITATIVE indictment in existance for that
case, and it is supposed to be stored in the courtroom files. From this point forward, there can only be official photocopies
or certified photocopies of that original indictment. All other versions are not legitimate. And if "versions" of the
indictment that are not true copies of the official indictment make their way into the court proceedings, then all kinds of
things can happen. Usually, the case is dismissed out of hand. Apparently, in my case, the official courtroom files only
had another version of the indictment that was created uniquely by computer and it had no original signatures on it. Since
the original was not in the courtroom file, Dale was asked to retrieve the original from his office, and his secretary
brought two more versions, none of them the original or a photocopy of the original.
In all, the court spent 85 minutes of the 105 minutes discussing and debating the several false versions of the indictment and
the total lack of an true copy of the original. Oddly, my attorney did not move for a dismissal as I expected. Another odd
thing occurred in that initial hearing. The magistrate judge gave the AUSA 7 calendar days to come up with a lawful copy
of the official and lawful indictment or the original. Everyone, including my attorney, seemed to feel that as long as
there was a lawful copy of a lawful indictment, SOMEWHERE, and as long as it was in the court records within 7 days, that
everything would be just fine. The problem with that is the fact that statute and court procedures demand that nothing can
begin without a lawful copy of the lawful indictment in the hands of the court. So no matter what the AUSA found or forged
within the next 7 days, all the actions up to and including the initial hearing in which I found myself were based on falsified
documents and were null and void in the eyes of the law. No one, not even my attorney, seemed to be concerned with that.
Of course, I was convinced that the reason my attorney was not concerned with it was because my attorney intended to file
a Motion to Dismiss based on the use of false documents to create a case against me.
I was to find out that this was not the case at all. But that is a story for later.
But the judge DID enter a "not guilty" please into the record for me, in spite of the presence of a number of false indictments
and the lack of a true indictment. The court then dismissed us after creating a schedule of events to come, such as deadlines
for discovery and motions and a tentative date for the criminal hearing.
A couple days later, the court entered into the docket its official version of the Minutes of that initial hearing.
I have posted it to the right, and you can read it be clicking on it. You might notice that there is no mention
of the 85 minutes spent trying to find a lawful copy of a lawful indictment. In fact, there was no mention at all of four
different and false indictments. This was a clear case of the court sanitizing the record to keep the issue from
being used for appeal. Also, the Minutes claims the government moved to unseal the indictment. This is totally false.
In fact, the judge asked why the indictment and the records were still sealed and Mr. Dale claimed he did not know but would
check into it. The judge responded to Mr. Dale's claims of ignorance with a move to unseal "on my own authority." Mr. Dale
never even indicated he wanted the records unsealed. For those of you who don't know too much about these types of marginally
legal efforts to harass and intimidate the defense, allow me to explain.
In criminal cases, it is not unusual to file the affidavit and kick off the court case while keeping everything "under seal"
so that nothing shows up in the Internet records. The bottom line, the AUSA wants to arrest the individual without the
individual first hearing about it and then running and hiding. So "under seal" is not unusual, until the arrest is made.
After the arrest, however, everything is supposed to be unsealed so that the defense can get access to the records and
prepare for hearings and motions and all the other things that occur in a criminal case. But the AUSA often "forgets"
to unseal the records, making it impossible for the defense to have any idea what was going on, much less be able to
prepare for things. This keeps the defense in the dark, and is supposed to intimidate and show who is in control. It is
all part of the posturing that the attorneys do.
This is similar to the stunt the DOJ pulled in my civil case. It announced in a news article that it had initiated a case
against me. It then filed the case in court the next day. It then TWO WEEKS LATER served me with court
documents. During that time I was receiving phone calls and emails from both clients and people I did not know asking me
about the case. I had heard absolutely nothing about it. This is how the DOJ attempts to intimidate those who would DARE
to resist the IRS. This, ladies and gentlemen, is your tax money at work, and a clear example of the lack of justice in
our justice system!
Until the initial hearing was over and I got home from it, I could not even find out if a case had been filed against me,
that is how "sealed" the records were.
Oh, one more item about the Summary. The court stated that "The defendant did not wish to enter a plea." This is an outright
lie. I specifically claimed that I could not enter a plea for two reasons. First, the indictment failed
in several technical but important ways, and the failures did not allow for a plea. Second, I did not know which indictment
to plead to. But both of these issues are terribly important in terms of raising legal points that I could use to dismiss
or on appeal. So the court intentionally left all mention of this out of the record. Some have suggested that this is
"falsifying the record" and that I should move to have the judge ejected from this case. I have not yet decided what to do.
A short meeting with my attorney after the hearing, followed by a short meeting with him early the next morning, left me with
the impression that a Motion to Dismiss was in the works. In fact, my attorney asked that I send him all the issues that I
believed should be included in the Motion to Dismiss (MTD). I had already written a Motion to Dismiss as far as my
understanding took me, so I forwarded the entire thing to him by email. I also forwarded some court cases that I had
referenced, and a few other items of interest, at least of interest to me and how I felt the case should proceed.
And then I went home to Florida to wait for his actions to get my case dismissed.
|
click
here
Initial Hearing Minutes |
Well, I went home and waited and waited and waited - well, you get the idea. I called several times and emailed several
times and I never heard from my court-appointed lawyer. One of the men I have listened to for counsel in this situation
has referred to my attorney as a "public offender" and he might just be right. Regardless, I could not get my attorney
to respond to me for an entire month. Finally, we talked on May 23, 2011.
I chewed out my attorney for a number of what I saw as failures. He seemed to think that there were no problems and no
irregularities and nothing to get upset about. I ran down my list of irregularities, including the use of illegal
indictments by Mr. Dale and clear attempt at covering up and misleading in the Minutes. I demanded for the third time a
certified copy of the recording and a certified copy of the transcript because I was concerned that the court would take
additional steps to conceal things in the record. My attorney denied that there was any wrong-doing on the part of the
prosecution and the court.
My attorney's response actually spooked me for the first time since my arrest. He had seemed angry and upset over the
falsified indictments, just like me . He had seemed ready to file for dismissal, just like me. He had seemed ready to
kick some legal butt, just like me. Now he was more concerned with the fact that I was unnecessarily upset than he was
over the need to dismiss the case.
This, ladies and gentlemen, was a substantial change in his perspective. Immediately, thoughts of "he has been bought"
came to my mind. Believe me, there is nothing so scary to a defendant, especially in a criminal case, as the possibility
of his attorney being improperly influenced or bought off!
When we finished our phone conversation, I wrote an email summarizing our phone call and explaining again why I was
upset with the way things have gone, and with his actions (or the lack thereof) so far. I listed 8 or 9 action items
that I believed were essential to accomplish ASAP, and told him that I expected him to accomplish them ASAP. I even
told him that a first year law student would be handling things better and I expected him to show some "fire in the
belly" and to fight for me. And I told him that I expected a phone call, email or fax, each week, beginning this
Friday, with an update on the action list. I told him that failure would result in my moving the court to replace
him with "effective assistance of counsel" on the following Monday.
And I reminded him that the court had set a deadline to file motions as of that Wednesday and so far he had filed nothing.
I told him I expected him to file a Motion to Dismiss by Wednesday at the very least.
I checked the docket on Wednesday evening and nothing had been filed.
I sent him a strong email early Thursday morning reminding him that I expected an update on Friday, and told him what I wanted
in that update. He emailed me on Friday, May 27, 2011, and informed me that he had filed an extension on all court actions and
that the court should grant that without comment. And that nothing had been done except for that motion. And that if I had
a problem with his efforts on my part that I could file that motion to replace him at my convenience (my paraphrase, not his words).
So now I am contemplating my next steps.
You can read his Motion to Continue by clicking on the link to the right.
|
click here
Motion to Continue |
| In the meantime, the Court demanded a Pre-Trial Conference on June 22, where everyone gets together and shares
where they are headed and what more they intend to do before trial. In addition, I expect there will be a demand to share
the trial strategy or strategies that both sides intend to pursue at trial, so everyone can get prepared and keep the trial
as short as possible to the attorneys and the judge can go golfing more quickly. You can view the Notice of Pre-Trial Conference
by clicking on the link to the right. |
click here
Notice of Pre-Trial Conference |
| The Court granted in part the Motion to Continue from above, and denied it in part. It seems we have more
time for discovery and more time to post motions, but the court date remained fixed unless the judge deemed it necessary
to delay that, also. |
click here
Order Granting Continuance |
We had our status conference on June 22, 2011. I actually got my attorney on the phone when I called
the week before the conference, and he actually petitioned the judge with the request that I be allowed to attend by
phone instead of driving more than 1000 miles to sit in the room for half an hour and drive back home. Yes, he
actually made a phone call and did that for me. I was truly excited about it. I think it was the first thing I
actually got him to do for me, and it was a big deal.
You can see the results of the status conference by clicking on the link to the right. But the biggest result was that
the actual trial was scheduled for early November of 2011. |
click here
Minutes on Status Conference |
It is now Thursday, 08/11/2011. Over the past 6 weeks my attorney has refused to communicate with me in
any way. I don't know if this is normal for Public Defenders or if this is normal for Kim Tollison or if this is not
normal for anyone. What I DO know is that this is simply not acceptable.
During this time I had begged, and then ordered, that my attorney file a Motion to Dismiss. No communication from him. I
also had a wedding I was supposed to attend in NYC. I spoke to the judge about it and he said there should be no problem -
if my pre-trial advisor (a sort of parole officer) approved it he would approve it. I called my P.A. and she said no
problem - she would recommend the judge approve it. I wrote to my attorney and - you guessed it - no communication.
I send 5 emails and made 3 phone calls over 9 days asking him to write the Motion and still no response. On my third
phone call to his office, I was informed he was out of town all week on vacation. This meant that there was no way I
was going to New York. As you can probably guess, I was absolutely livid with yet one more failure on his part. It
seems that there is no getting through to this man - he just plain does not want to do anything except collect his
fees from the federal government. You can bet money that he finds the time to fill out the necessary forms to get paid...
But he is doing one thing- he is filing Motions to Extend the time required to do things. He actually filed two of them
over the past 6 weeks because he was doing nothing and the deadline for doing something was fast approaching.
You can view his two Motions to Extend and the Order Granting the second motion by clicking on the links to the right.
Note that the Order leaves in place a Pre-trial Conference scheduled for August 29, 2011, which is not too far off.
|
click here
Motion to Continue, 06-22-2011
click here
Motion to Continue, 08-01-2011
click here
Order Granting Continuance |
I discovered the most startling event since my arrest! My attorney filed a Motion to Dismiss!!
Actually, he filed two Motions to Dismiss, along with the required Memoranda in Support of Motion for each. You need to read
them. In the first one, he moved for dismissal based on the four bogus indictments that became evident in the Initial Hearing,
described in detail above. While he didn't use my MTD that I gave him months ago, he did file what I believe to be a
good motion. In the second MTD, he moved to have counts two and three dismissed based on the line of reasoning in my
original MTD I gave to him. Specifically, those two counts claim I violated the statutes that declare a penalty for
failing to file a return. That statute merely levies a penalty for those who violate some unnamed statute requiring
that they file, but doesn't mention any statute that requires them to file. As discussed in detail above, the usual charges
filed by the IRS/DOJ for someone like me is mis-named "Willful Failure to File." I say "mis-named" because that statute
doesn't require anyone to file, it merely levies a fine and jail sentence on someone CONVICTED of not filing. But the
indictment cannot by law name a statute that merely levies a penalty for not obeying another statute unless that other
statute is also named in the Indictment. Yet the IRS/DOJ in tax cases like mine NEVER list that requirement statute
because IT DOES NOT EXIST! Mr. Tollison had never heard of this line of reasoning before I gave him my MTD three
months ago. That statement is in no way derogatory towards Mr. Tollison since he has never defended a tax case before.
It would be unusual for him to be familiar with this argument if he had not defended a case like mine before. So he
took my reasoning and wrote his own Motion to Dismiss, and it was actually a very good motion. In fact, both his motions,
combined with both his Memoranda of Law supporting the two motions were actually very good documents. It reminded me of
why I liked him and thought he would be a good attorney to have on my side way back when I first met him. Of course, that was
before I spent the next three months just trying to get him to answer an email...
Anyway, we now have two Motions to Dismiss before the court. The Assistant US Attorney now has either 2 weeks or three
weeks to give a Response as to why the court should not grant the motions. (For those of you who don't know, one side
turns in a Motion, then the other side has to prepare a Response to that Motion, and then the first side has to prepare a Reply to the
Response.) Officially, the government has until August 22 to respond according to Minutes of the Status Conference, and until
September 1 according to the Federal Rules of Criminal Procedure. I am actually not quite sure which limit applies here.
And I don't know what is to happen to the Pre-Trial Hearing that is currently scheduled for August 29. I will be checking these
issues and posting the results as soon as I know them.
You can check out the Motions and their respective Memoranda by clicking on the links to the right.
|
click here
first Motion to Dismiss
click here
Memorandum of Law in Support of first Motion to Dismiss
click here
second Motion to Dismiss
click here
Memorandum of Law in Support of second Motion to Dismiss |
The Adversary filed his Response to both of our Motions to Dismiss in one document. He claimed the expected
"Huh uh!" using a little deception to make his points. But the bottom line is he simply denied everything we claimed. This
should be a lesson to everyone who is defending himself in a lawsuit - be specific in your claims and use lots of legal
references and case cites in your Motions. In my case, my attorney had taken two of my three legal arguments and worded
them in his own manner when he filed the two MTDs. But he used almost none of the legal argument and none of the
references and cites I put into my MTD that I gave him. It was sort of a "good ole boy" motion which could have been summed up
in one statement: "Your Honor, that's just not right." Since it kind of came out as personal opinion with no real cases to
back it up, the government came back with its opinion and a couple of cases that sort of applied. That made his Response
seem more authoritative than our MTD. This kind of give and take leaves the door open to the judge going with the seemingly
more autoritative document. But there were still some very important failures in the Indictment for us to use at trial if we
get to trial. Remember, even if you don't argue the issues effectively in a MTD, you must raise the issues
or you lose them for appeal. Raise them in the MTD or raise them in court, but raise them!
You can the government's Response to our two MTDs by clicking on the link to the right. |
click here
Government's Response to Motion to Dismiss |
Generally speaking, when one side submits a motion, the other side has two weeks to submit a Response to the
motion. Then the first side has another two weeks to submit a Reply to the Response, explaining what was wrong or inaccurate
about the Response and why the judge should approve or "grant" the motion. Then everyone sits in anxiety waiting for the judge
to issue an order either granting or denying the motion. In our case, the judge ordered a Motions Hearing for everyone to
discuss the Motion and the Response. We had our hearing on September 2, 2011. It lasted about 90 minutes and resulted in a
50-page transcript. I have not yet reduced the transcript to a pdf document so I can post it here. I will do so sometime
in the future. But for now, you will just have to read my Notes on the Response, sent to my attorney before the hearing,
much of which actually made it into the discussion at the Motions Hearing.
You can read my Notes on the government's Response by clicking on the link to the right. |
click here
My Notes on the Government's Response to Motion to Dismiss |
On September 20, 2011, the government submitted a Superceding Indictment against me. The government has
claimed that there is no failure in the original Indictment relative to the absence of a requirement statute. It claims
that Section 7203 is all that is necessary to provide a requirement. Now it submits a new Indictment that supposedly
containing a requirement statute. This new Indictment is almost identical to the original Indictment, except with the
phrase "as required by Section 6012" added. Interesting that there is no failure for including no requirement statute,
yet NOW the government submits a Superceding Indictment containing a requirement statute.
You can read the Superceding Indictment by clicking on the link to the right. |
click here
Superceding Indictment |
It took a while, but on September 30, 2011, the magistrate finally issued his "Recommendations." Please
understand that a magistrate is a sort of "junior judge" who cannot render a final decision on any "dispositive" motion,
on any motion that can dispose of a case. So he issues a "recommendation" to the REAL judge over this case, an Article
III judge. Once issued, we have two weeks to file a Response to his Recommendations. Then the Article III judge issues
a final decision to grant or deny the Motion to Dismiss.
I am posting links to two copies of the Recommendation. The first is the original Recommendation as posted in the case docket.
The second link is to my annotated copy, where I entered a whole pile of comments. You really need to read my annotated version.
There are so many clear errors and misrepresentations and such a strong bias that it appears to me that the magistrate has given
us a victory. Or maybe a mistrial.
You can read the original Recommendations and my annotated version of the Recommendations by clicking on the links to the right. |
click
here
Magistrate's Recommendations
click
here
Magistrate's Recommendations with my Annotations
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