Gov Objection IS as Expert
- From: "wolfgangsmutz" <wolfgangsmutz@xxxxxxxxxxx>
- Date: Thu, 4 Aug 2005 23:27:00 -0700
IR WIN A. SCHIFF, PRO PER
444 E. SAHARA AVE.
LAS V EGAS NV. 89104
702-385-6920
Fax. 385-6917
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
UNITED STATES )
)
Plaintiff ) CR-S-04-0119 ? KJD
(LRL)
)
V )
DEFENDANT?S REPLY
) TO THE GOVERNMENT?S
IRWIN SCHIFF, CYNTHIA NEUN ) OBJECTION TO SCHIFF?S
And LAWRENCE N. COHEN, a/k/a ) TESTIFYING AS AN EXPERT
LARRY COHEN ) ON INCOME TAXES
Defendants. )
_____________________ _________)
This is in response to the United States? objection to my
testifying as an expert witness.
The government?s penchant for making disingenuous statements
simply knows no bounds. For example, the government states:
The probable substance of defendant Schiff?s
proposed testimony would involve his interpretations of the law and
discussion of the validity of the tax laws. Such testimony is impermissible
as it would usurp the role of the judge and in appropriately instruct the
jury on the law, which remains within the province of the trial judge.
(Citations omitted) It is well settled that the judge instructs the jury in
the law. Experts ?interpret and analyze factual evidence. They do not
testify about the law because the judge?s special legal knowledge is
presumed to be sufficient, and it is the judge?s duty to inform the jury
about the law that is relevant to their deliberations.?
First of all, as the following will show, Schiff?s testimony (as
an expert) will not involve his ?interpretations of the law,? but will
largely focus on why statements on documents attributed to defendant Schiff
which the government claims are ?false? (as a matter of law), are not false
as a matter of law. In other words he will testify that government claims -
based upon the opinions and claims of unknown, unidentified and phantom
federal employees - are false. Certainly, defendants have a right to put on
an expert who is prepared to testify, under oath, that claims made by
phantom federal employee with respect to documents which the government
intends to use against such defendants - represent false claims, as a matter
of law ? especially when such experts can still be cross-examined with
respect to their testimony. The irony is almost laughable. The government
wants to indict and prosecute people based on: (1) the erroneous claims and
charges of phantom federal employees who, (2) have not made their claims and
charges under oath, where; (3) they would have been subject to
cross-examination; but objects when real people want to testify openly and
under oath and be subject to cross- examination that such claims and charges
are false. What more proof does anyone need of the duplicity and deceit
of the DOJ?
Secondly, my testimony as an expert will not be to challenge the
?validity? of any tax law, but my testimony will be that ALL tax laws are
valid. If anything, my 30 years of research and expertise have led to the
inescapable conclusion that the DOJ in all of its civil and criminal
prosecutions and litigation VIOLATES each and every law in the Internal
Revenue Code bearing on the federal income tax, as well as violating all
three of the Constitution?s three taxing clauses. My efforts over the last
30 years have been to try and force the DOJ to OBEY those laws. However,
the DOJ does not want to do so, and its instant prosecution of me is
designed to interfere and obstruct my efforts to make it do so.
The government?s further claim that expert testimony on the law
is ?impermissible as it would usurp the role of the judge? is further proof
of the dishonesty and duplicity of claims made by the DOJ in this
litigation. Included in Exhibit A are various transcript pages from USA v.
Dentice. I would ask the court take judicial notice that on page 707 the
United States introduces Revenue Agent Nancy McLeod as an ?expert witness.?
On page 708 she is asked ?Have you testified in federal court before as an
expert witness??, and she responds, ?Yes, I have.? And on page 709 she
states that she has testified ?Five times? as an ?expert.? Presumably she
is an ?expert? in overall tax law, since her alleged ?expertise? is not
qualified in any way, such as her being an ?expert? only in ?tax
calculations? as the government sought to disingenuously qualify its
?expert? Revenue Agent Clinton Lowder in the instant case. Her alleged
?expertise? is based upon her receiving a ?Bachelor of Science from San
Diego State in accounting,? and receiving additional IRS training, and based
on her experience in having conducted approximately 1,500 income tax audits.
[1] When asked by the prosecutor ?Have you received training from the IRS
specifically to testify regarding as an expert witness?? she answers, ?Yes,
I have.? When asked, ?On what matters was this testimony related to?? she
states, ?Tax evasion and false returns.? Obviously, the government uses
her to testify at criminal trials, as to why ?under the law? certain
representations made by defendants in those prosecutions constituted or
indicated ?tax evasion? and why, certain returns (which were at issue in
those prosecutions) were ?false returns? as a matter of law. Thus the
government?s statement that ?Such (expert) testimony is impermissible as it
would usurp the role of the judge and inappropriately instruct the jury on
the law, which remains within the province of the trial judge (Citations
omitted)? stands revealed as being totally disingenuous. If this
statement were true, what purpose would Revenue Agent McLeod?s testimony
have served? - and why was she allowed to testify at all? The government
obviously uses alleged ?experts? like Ms. McLeod and Revenue Agent Clinton
Lowder all the time to testify about ?tax law? in income tax prosecutions.
However, in the instant case, the government sought to disingenuously claim
that Agent Lowder would be testifying about ?tax calculations,? in order to
mask the fact that he would actually be testifying about the law.[2]
However, in the Dentices? prosecution, the government made no bones about
using an alleged income tax ?expert? (Revenue Agent McLeod) to persuade the
jury that the statements I instructed Dr. Dentice he could put on his
amended returns were false ? as a matter of law.
On page 742 the prosecutor asks her: ?Now Ms. McLeod, in your
expert opinion and based upon on what you heard at trial and reviewed prior
to trial, are those amended tax returns correct.?? And her answer is ?No.?
On that basis the Dentices were convicted of allegedly filing
?false and fraudulent? amended returns. Consequently, I was charged in
Counts 2-4 of the indictment of ?aiding and assisting? James and Angela
Dentice with filing ?false and fraudulent? 1040X?s. Those 1040X?s made
three legal statements: (1) the Dentices ?had no ?statutory? income? but
?reported sources of ?income? as being ?income? itself; (2) that they had no
?statutory income tax ?liability??; and (3) pursuant to 26 CFR
301.6401-1(a)(2) and 1(b) they were entitled to an ?automatic refund.? The
Dentices were found guilty; therefore, on the representations of IRS tax
?expert? Nancy McLeod that all three of those legal statements were
incorrect as a matter of law. And the totally ineffectiveness of the
Dentices? lawyers, is demonstrated by the fact that they failed to challenge
her totally erroneous claim with respect to these 1040X?s on any basis. As
a matter of fact, as shown on page 45 of the trial transcript, Mrs. Dentice?
s lawyer states at the opening of the trial:
Now, I want to be honest for a minute, I?m not going
to produce any evidence that I believe Irwin Schiff. In fact, I
?ll tell you straight out, I don?t believe Irwin Schiff. I?ve talked
to him and I don?t believe Irwin Schiff.
He then goes on to state that ?The evidence will show that my
client honestly believed Irwin Schiff.? However if her lawyer was not going
?to produce any evidence? as to why his client might have believed Irwin
Schiff, on what basis would a jury believe that his client might have
actually believed Irwin Schiff? Just because she said so? - but without
being shown any legal basis as to why she might have believed Irwin Schiff
or why such a belief might be legally or logically rational - even if it
were not legally correct?
But, in any case, if Revenue Agent Nancy McLeod can testify as
an ?expert? as to why the statements on the Dentices? amended returns were
false as a matter of law, I certainly can testify as an ?expert? as to why
those statements were correct as a matter of law, since my credentials as an
expert are far superior than hers. [3]
For one thing, I too have a Bachelor of Science degree with a
major in accounting, but from the University of Connecticut, not from San
Diego State. So our academic credentials are exactly the same. However,
from that point on my credentials are far superior to hers. For one thing,
I have written at least five books on income taxes and related subjects that
have sold in excess of 500,000 copies. One book ?How Anyone Can Stop Paying
Income Taxes? was a best seller in 1983. Exhibit B is a reprint that
appeared in the May 2, 1983 issue of ?Time? magazine which reported ?How
Anyone Can Stop Paying Income Taxes? as being a ?best seller? Has Nancy
McLeod written any books on the income tax, much less a ?best seller.?? In
addition, I have attached (Exhibit C) an article that appeared in the St.
Louis Daily Record? (the daily legal journal) reporting on a lecture I gave
at the Washington University Law School. In addition I have attached
(Exhibit D) an ad placed in the campus newspaper by the ?Campus Activities
& Programming (CAP)? committee publicizing the three lectures I would be
giving on income taxes at the University of Toledo; two in the main
auditorium and one at the Law School. I received an honorarium of $500
from the student activities fund which also paid for my hotel, air fare, and
car rental. Has Nancy McLeod ever been paid to lecture at a University on
income taxes? In addition, I have enclosed an article written about me
that appeared in the July 5, 1995 issue of the New York Times (Exhibit E)
I must have some expertise on income taxes to have warranted such an
extensive write-up in the ?Times.? In addition, I have been interviewed by
Larry King with respect to income taxes and have guested on hundreds of
radio shows as well as appearing on such popular TV shows as: ?Cross-Fire,?
?20/20?, ?Extra? ?The Tom Snyder Show? ?Hannity & Colmes? and hundreds of
other TV shows. Has Ms. McLeod ever been interviewed even ONCE on radio or
TV in connection with her alleged ?expertise? on income taxes? Obviously,
if she can qualify and testify as an ?expert? on income taxes, so can I.
If the government doubts I am an expert on income taxes, they
can certainly voir dire me with respect to my claimed ?expertise? and
impeach my ?expertise? in front of the jury. They can use against me as a
defendant, anything that I say as an ?expert.? And if, as the government
claims, everything I say about the income tax is both false and fraudulent,
the government should relish the opportunity to cross-examine me with
respect to my claimed ?expertise.? So what is the government?s problem?
In addition, in its Memorandum the government makes a number of
statements which it knows are FALSE! For example the government states that
my ?expert? testimony will involve; ?(a) discussion of the Internal Revenue
Code, and (Schiff?s) contention that its provisions are invalid?; the
government repeats this canard further with, ?he intends to testify that
the tax laws are invalid?; and then modifies its canard later by stating,
?Schiff?s testimony may constitute disagreement with the law, another
impermissible ground for expert testimony?; and, in addition, claims my
testimony ?could potentially confuse the jury?; ?and ?what qualifications
(does) he have to form these opinions?? [4] As I have stated before, the
government?s ?penchant for making disingenuous statements simply knows no
bounds.? The government knows FULL WELL that in the 15 or so pre trial
motions I filed in this case, I never ONCE claimed that ANY LAW in the
Internal Revenue Code was ?invalid? or that I had any DISAGREEMENT with
ANY LAW in the IR Code. And my testimony will involve no such claim. My
claim is that all my returns and all of the documents I ever filed in
connection with income taxes or any documents that I might have recommended
that others might file in connection with income taxes, ALL COMPLIED WITH
THE LAW. My expert testimony (which is akin to Ms. McLeod?s expert
testimony, albeit from a different perspective) is that every document
claimed by the government in the indictment to be false, as a matter of law;
is not false, as a matter of law. So if the government can use ?experts? to
testify at criminal trials that documents filed by defendant, and/or under
his direction, were ?false? as a matter of law, defendants certainly have a
similar right to use ?experts? to testify that such documents were ?not
false,? as a matter of law And who is more qualified than me to testify as
an ?expert? on this issue?
As to what are my ?qualifications?? The government knows full
well what they are. Thirty years of study, and the numerous books I have
written on the subject of income taxes certainly establish my ?expertise?
with respect to this subject, and establish that I have far greater ?expert?
credentials on this subject than either Revenue Agents Nancy McLeod or
Clinton Lowder. And if the government doubts my ?expertise? they have
three able bodied tax lawyers from the Justice Department standing by who
can voir dire and impeach me, and expose my alleged lack of expertise when I
call myself to the stand to testify as my expert. And the government?s
further claim that I ?could potentially confuse the jury? is utter nonsense
and tantamount to an admission by the government that its three tax lawyers
are so incompetent that they cannot prevent me ? even on cross-examination ?
from ?confusing the jury.? If this is so, that?s the government?s problem,
and not mine. Defendants should not have their ?due process? rights to call
expert witnesses in their own behalf, compromised and infringed upon,
simply because government prosecutors are so incompetent that they are
incapable of preventing experts from ?confusing? juries [5] It would be my
pleasure to cross-examine any one of the government?s three Justice
Department tax lawyers (or any other tax lawyer the government wants to put
on the stand as a tax expert?) should they elect to take the stand ? and I
would not permit them to ?confuse the jury? as to what the law is, and why
my beliefs and the documents I have filed in connection with income taxes
conform to those laws. So why should these Justice Department tax lawyers
have any problem when it is the other way around?
ADDITIONAL EXPERTS I WILL CALL AS WITNESSES
In addition, I will call as an expert tax lawyer Elliot
Silverman who wrote the attached article (Exhibit F) entitled ?IS
AFFIRMATIVE MISCONDUCT NECESSARRY FOR TAX EVASION?? that appeared in the
February, 1987 edition of ?The Journal of Taxation.? I would want him to
testify as to why in his expert opinion I was never legally convicted of tax
evasion in 1985, as covered in his article.
In addition, I will call as an expert the government?s expert
psychologist who examined me on behalf of the government, Daniel S. Hayes of
Coeur d? Alene.
WHAT I WILL TESTIFY ABOUT AS EXPERT IN TAX LAW
The government claimed that I did not provide it with a
description of what I would testify about. I informed the government that I
would testify concerning all of the material as contained in my pre trial
motions. I believed that covered everything. However, if the government
wants me to spell it out, here it is.
1) I will testify that every document named in the indictment as
containing ?false and fraudulent? information, is itself a false and
fraudulent claim, and that all statements contained in all such documents
are legally correct.
2) I will testify that all of the evidence obtained in the IRS search
and seizure was obtained illegally, as was fully covered in my Motion to
Suppress and I will use all of the Exhibits as contained in that motion to
support my claim.
3) I will explain how the government misled the grand jury as to the
legal meaning of ?income? and did not use the meaning given to it in Senate
Report 1622 and House Report 1337 (83rd Congress, 2d Session)
4) I have attached as Exhibit G the first page regarding the taxing
power of Congress as contained in the ?United States Supreme Court Digest.?
I ask the Court to take judicial notice that the ?Digest? refers to no less
than three decisions: Stanton, Tyee Realty, and Bushaber in which the
?Digest? points out the Supreme Court held, ?The whole purpose U.S.C.A.
Const. Amend. 16 authorizing an income tax, was to exclude the source from
which a taxed income was derived as the criterion by which to determine the
applicability of constitutional requirement as to apportionment of direct
taxes.? I don?t think the government explained this to the grand jury when
it secured the instant indictment. Nor do I think this Court intends to
explain this aspect of the income tax to the jury when it instructs them on
?the law? governing income taxes. However, I believe defendant Schiff has
a ?due process? right to make sure that the petite jury understands what the
Supreme Court meant by these words, before it is asked to convict him of an
income tax crime. These words must be fundamental to a proper understanding
of our income tax laws ? otherwise it would not have occupied 25% of the
decisions cited on the first page of the ?Digest.? However, unless Schiff
explains what the Supreme Court meant by these words, I doubt that the
petite jury will be made aware of a principle that is obviously so
fundamental to an understanding of our income tax laws that is was repeated
three times just on the first page of the ?Digest?s? coverage on taxes.
5) I will also testify that based upon 30 years of research, I could
not find any statute that made Defendant Schiff: ?liable? for income taxes;
required him ?to pay? income taxes; required him to keep books or records;
or provided for penalties with respect to income taxes. Obviously, on
cross-examination, the government could prove how inept, bungling, and
sloppy was my research by confronting me with the statutes that have eluded
me for 30 years.
6) I will also testify that as an ?expert? based on 30 years of
research I could not find any statute that authorized the IRS to enforce -
in any manner - any provision of the IR Code. In fact, in my expert opinion,
the IR Code (especially considering the provisions of 7608) specifically
bars all IRS agents ?by whatever term designated? (with the possible
exception of ?criminal investigators of the Intelligence Division of the
IRS? whom the Secretary has specifically charged with such duties) from
even getting involved in income tax enforcement. Of course, in their
cross-examination of me the government?s three, expert, tax lawyers, will
certainly be able to discredit and impeach any such testimony and confront
me with the statutes that have, for 30 years, eluded me.
IN SUMMATION
The government?s claim implying that there is no justifiable or
legal basis for calling ?expert? witness on the law in income tax
prosecutions, because ?the judge instructs the jury in the law? is, as
shown by the attached Exhibits, to be a total fabrication. The government
uses such ?experts? at practically all income tax trials. However, when
such ?experts? testify in favor of the government, expert testimony is okay;
but if such expert testimony might interfere with the government?s case,
then expert testimony is not okay. That, obviously, is the only criterion
that is being applied here. In addition, I will not testify that I regard
any tax law as being ?invalid? or that I ?disagree? with any statute
involving income taxes. The government?s further claim that I could ?confuse
the jury? is totally without merit. The government has three Justice
Department tax lawyers whose job it is to make sure my expert does not
?confuse the jury.? If they claim that they are so incompetent as to
prevent this from happening, then that is the government?s problem, not
mine. My constitutional right to call an expert witnesses on my behalf can
not be infringed upon simply because the government claims that its
prosecutors are so incompetent that they cannot prevent expert testimony
from ?confusing? the jury on matters involving income taxes and on issues
that are vital to my defense.
I, as a defendant (and not necessarily as an expert) will also
testify to establish my lack of ?wilfullness? and to establish my defense in
accordance with United States v. Bishop, 412 U.S. 346, 361 (1973), which
held, that: ?The requirement of an offense committed ?willfully? is not
met, therefore, if a taxpayer has relied in good faith on a prior decision
of this Court... ,? As shown my Declaration and in a number of my pleadings
I relied on the following Supreme Court decisions: Brushaber v. Union
Pacific Railroad Co., 240 U.S. 1 (1916), Pollock v. Farmers Loan & Trust,
157 U.S. 429 (1894), Stanton v. Baltic Mining, 240 US 103 (1915), Eisner v.
Macomber 252 US 189 (1920), Flint v. Stone Tracy Company, 220 U.S. 107;
Merchant?s Loan & Trust Co v. Smietanka, 255 U.S. 509, Stratton?s
Independence v. Howbert, 231 U.S. 399; Southern Pacific v. Lowe, 247 U.S.
330 (1918); Bowers v. Kerbaugh-Empire Co., 271 U.S. 170 (1926); Burnet v.
Harmel, 287 U.S.103 (1932); and Doyle v. Mitchell Bros., 247 U.S. 179
1918) - and, of course, I will testify as to all of these cases and why I
relied on them to establish my ?good faith? defense in accordance with the
Bishop doctrine.
In addition I will testify that I relied on the: Congressional
Research Service, Library of Congress, by Howard M. Zaritsky, Legislative
Attorney, American Law Division of the Library of Congress, Report No.
80-19A, entitled ?Some Constitutional Questions Regarding The Federal Income
Tax Laws?, which states at page CRS-5:
The Supreme Court, in a decision written by Chief Justice White,
first noted that the Sixteenth Amendment did not authorize any new type of
tax, nor did it repeal or revoke the tax clauses of Article I of the
Constitution, quoted above. Direct taxes were, notwithstanding the advent
of the Sixteenth Amendment, still subject to the rule of apportionment and
indirect taxes were still subject to the rule of uniformity.
In addition I will testify that I relied on House Report 1337 and Senate
Report 1622, that the ?definition? of ?gross income? as used in Section 61
of the 1954 Code ?is based upon the 16th Amendment and the word ?income? is
used in its constitutional sense, ? and on the Privacy Act Notice contained
in a 1040 Booklet which notified me that I only had to file and pay ?any
tax? only if a statute made me ? liable? for that tax. Since I could not
find any statute in the Internal Revenue Code that me ?liable? for income
taxes (and the Notice did not identify any such statute for me), I relied
upon this Notice as notice to me by the government that no law required me
to file income tax returns or pay income taxes. This was especially
persuasive since I discovered that the Privacy Act Notice used in
connection with the Federal wagering tax specifically informed those who
might be subject to that tax, that (1) they were required to file a Form
730, and (2) also informed them of the statute that (a) made them ?liable?
for that tax. And I also relied on my understanding of a number of other
statutes, such as Code Sections: 6001, 6011, 6201, 6211, and a number of
other statutes that persuaded me that I had a right under the law to file as
I did.
ORAL ARGUMENT REQUESTED
Dated: August 2, 2005 _________________
Irwin Schiff, pro per
CERTIFICATE OF SERVICE
I certify that I have this date hand delivered a copy of the
foregoing Reply to the Government?s Objection to Schiff testifying as an
Expert Witness to:
MELISSA SCHRAIBMAN
LARRY J. WSZALEK
JEFFREY A. NEIMAN
Trial Attorneys, Tax Division
US Department of Justice
333 Las Vegas Blvd., South, Suite 5000
Las Vegas, Nevada 89101
And that I have this day mailed a copy of this Motion by first
class mail, to the following Attorney?s of record.
CHAD BOWERS, Esq. MICHAEL
CRISTALLI, Esq.
Counsel for Defendant Cohen Counsel
for Defendant Neun
3202 W. Charleston Blvd. 732 S.
6th St. Suite 100
Las Vegas, Nevada 89102 Las Vegas,
Nevada 89109
Date: August 2, 2005
_________________
Irwin Schiff
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[1] Which she was specifically barred from doing by Code section 7608(a).
[2] However, I covered this attempted deception in my previous objection to
his testifying as an ?expert? as well as pointing out that - THE LAW ?
specifically Code section 7608(a) bars him from testifying on income
taxes.
[3] Especially when she is specifically barred by Code section 7608(a) from
even giving testimony on income taxes. At least, no Code section bars me
from testifying on income taxes.
[4] I believe I covered this in a prior pleading.
[5] Of course, what the government really means is ?persuading,? and not
?confusing.?
.
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