Sue the D.O.J.


  1. Criminal Defense Packet
  2. The National Law Journal— Who the IRS Prosecutes
  3. Jury Instructions
    1. Jury Instructions for Vernice Kuglin Trial
      Venice B. Kuglin was acquitted by the jury on a tax evasion case. The judges charge to the jury is a good explanation of a jury trial on tax evasion. For a complete copy of the Venice Kuglin transcripts, visit our Patriot Bookstore
    2. Jury Instruction in Federal Criminal cases (from the Federal Jury Instruction)
    3. Jury Instructions and Explanation of Federal Criminal Tax Law
  4. Articles and Commentary
    1. Article on the Loyd Long case
    2. Cheek Case Explained
    3. No Credit Reports to CID
      [Collection Investigation Division}
    4. Brief History of Willfulness Defense
  5. Important Cases
    1. Illinois Supreme Court Rules State Income Tax Unconstitutional
    2. Reversal on No Assessment or Lack of Assessment
    3. Reversal on Procedural and Definition Grounds
  6. Client Cases
    1. Harold and Sherri Patriot
    1. DOJ's Opposition to Maximum Damages
    2. Proposed Schedule Order
  7. DOJ Criminal Tax Manual
  8. Briefs on Appeal
    1. Schiff's 2007 Criminal Appellate Brief
  9. Bill of Particulars
    1. Rules and Procedure
    2. Failure to Provide Bill of Particulars
      1. Explanation
      2. Motion to Dismiss
    3. U.S. v. Schwab, 61 F.Supp.2d 1196 (D.Wyo. 1999)
  10. Motions
    1. Motions in Limine
      1. Governments Motion in Schwartz Case
      2. Comments on Schwartz
    2. Motion for Arrest of Judgment
      1. Motion for Arrest of Judgment and to Dismiss Indictment
    3. Motion to Suppress
      1. Decision in the Irwin Schiff Case
  11. Schiff Case
    1. Transcripts of Schiff Case
      1. Day 5
      2. Day 6
      3. Day 7
      4. Day 8
      5. Day 9
    2. Decision in the Irwin Schiff Case
  12. Amicus Curiae Brief in Siminiking Case
    1. Introduction by Peymon to Amicus Curiae Breif
    2. Amicus Curiae Brief by Attorney Dickstein
      (Opens in Adobe Reader)
    3. Motion for Leave to File an Amicus Brief

Cheek Case Explained

Lindsey Springer wrote:
I would respectfully disagree in part with the issue regarding defense attorneys. Most of them do not know how to apply Cheek, Bryan, the exception to willfulness, or how in a criminal tax case that is usually the only thing that matters and the only thing the average defense attorney knows nothing about. It is also the only thing the Court does not know how to get around with any degree of consistency. For instance, in a tax evasion case, there are only three essential elements; (1) willfulness, (2) a (substantial is up for debate) tax deficiency, and (3) affirmative act constituting evasion of assessment (detection) or payment. The only one of these elements that is in section 7201 is willfulness. The other two essential elements are "judicially created" and there is no way that any person would have notice of these elements from Congress. Setting that aside, willfulness being the exception, in Cheek, the Supreme Court described the term "Willfulness" clarifying was "construed by our prior decisions in criminal tax cases, requires the Government to prove that the law imposed a duty on the defendant, that the defendant knew of this (law) duty, and that he voluntarily and intentionally violated that (law) duty."7 Id. at 201

Cheek was not a new theory of law but rather it was a restatement of what had been consistently construed for many years from the three "components" of willfulness, that only if all of these were proved to the jury do they equal a finding by the jury of a "voluntary, intentional violation of a known legal duty." Cheek, 200. In 1994, Congress extended this willfulness exception to Bank type cases citing the complexity often finds someone not intended to be a criminal. See Ratzlaf. In 1998, the Supreme Court, Justice Stevens writing for the 6 judge majority (yes, Cheek majority picked up one affirming Cheek and separating it from Gun cases) decided not to extend the exception to Gun type cases because the (difficulty) comparison between the proliferation of statutes and regulations in the tax code v. one single section and no regulations in the Gun laws. Even this Bryan decision had three dissenters who would have extended Cheek exception to Gun type cases.

The dissenters (Scalia, Renquist and Ginsberg (odd three some wouldn't you say) said: "That is the meaning we have given the word "willfully" in other contexts where we have concluded it requires knowledge of the law. See, e.g., Ratzlaf, supra, at 149 ("To convict Ratzlaf of the crime with which he was charged, . . . the jury had to find he knew the structuring in which he engaged was unlawful"); Cheek v. United States, 498 U.S. 192, 201 (1991) ("[T]he standard for the statutory willfulness requirement is the `voluntary, intentional violation of a known legal duty.' . . . [T]he issue is whether the defendant knew of the duty purportedly imposed by the provision of the statute or regulation he is accused of violating"). The Court explains these cases on the ground that they involved "highly technical statutes that presented the danger of ensnaring individuals engaged in apparently innocent conduct." Ante, at 194. That is no explanation at all. The complexity of the tax and currency laws may explain why the Court interpreted "willful" to require some awareness of illegality, as opposed to merely "an act which is intentional, or knowing, or voluntary, as distinguished from accidental." Murdock, 290 U.S., at 394. But it in no way justifies the distinction the Court seeks to draw today between knowledge of the law the defendant is actually charged with violating and knowledge of any law the defendant could conceivably be charged with violating. To protect the pure of heart, it is not necessary to forgive someone whose surreptitious laundering of drug money violates, unbeknownst to him, a technical currency statute. There, as here, regardless of how "complex" the violated statute may be, the defendant would have acted "with an evil-meaning mind."

You can read the rest if you wish.

In the Bryan decision, the Supreme Court said "[I]n certain cases involving willful violations of the tax laws, we have concluded that the jury must find that the defendant was aware of the specific provision of the tax code that he was charged with violating. See, e.g., Cheek v. United States, 498 U.S. 192, 20111 (1991)." Bryan v. U.S. 524 U.S. 184, 194 (1998)

This would clearly tell any defense attorney that his client's only defense is whether the Government "proved the law imposed a duty on the defendant". If and only if the Government places evidence of this first "component" (Cheek designation at 201-202) would the defense attorney then defend whether the Government entered any evidence that his client (usually public defender defending) was with specific awareness of the law imposing the duty. And only if some evidence of this specific awareness is present before the jury would the defense need focus its vigorous defense upon the third component and that is that the defendant voluntarily and intentionally violated the law that imposed that duty.

I would agree that "law" that "imposed that duty" is up for debate gentleman. Some Courts in giving an exception to the Paperwork Reduction Act of 1980 (Government hates 1995 PRA) said it was a criminal provision ("[i]t was a federal statute - 26 U.S.C. § 7203 - not a regulation or an instruction book that required Salberg to file an income tax return."[Salberg v. U.S. 969 F.2d 379, 384 (7th Cir. 1992)]; while others said it was a civil provision to which the mandate came from ("Congress created Neff's duty to file the Returns in 26 U.S.C. § 6012(a).")[U.S. v. Neff, 954 F.2d 698 (11th Cir. 1992)]; While others even mixed them and required both the civil code section and the criminal code section ("Defendant was not convicted of violating a regulation but of violating a statute which required him to file an income tax return. See 26 U.S.C. § 6012 and 7203." [ U.S. v. Wunder, 919 F.2d 34 (6th Cir. 1990)][see also U.S. v. Hicks, 947 F.2d 1356, 1359 (9th Cir. 1990)] and even the 5th Circuit committed to nothing [U.S. v. Kerwin, 945 F.2d 92 (5th Cir. 1991)]("like the taxpayer in Wunder, was convicted of that statute...") to carve out the exception for the IRS under the PRA of 1980. Wunder cited to two statutes and the 5th Circuit said "that statute" when citing to Wunder. While even others said they did not subscribe to the "statutory origin theory" and stated that "as long as the 1040 form complies with the [PRA], nothing more is required." U.S. v. Dawes, 951 F.2d, 1189, 1193 (10th 1991)[see also .S. v. Holden, 963 F.2d 1114 agreeing with Dawes (8th Cir. 1992)].

Next, the evidence of the Commissioner's version of the requirement appears in the Instruction Booklet for Form 1040 and has been there for 25 years (section 6001, 6011 and 6012(a) and THEIR REGULATIONS. In 1944 the Supreme Court said "Congress has given discretion to the Commissioner to prescribe by regulation forms of returns and has made it the duty of the taxpayer to comply." CIR v. Lane-Wells Co., 321 U.S. 219, 223 (1944). In 1990, among other excellent things, the Supreme Court said in Dole v. U.S. Steelworkers, 494 U.S. 26,(1990), the Supreme Court said "typical information collection requests include tax forms" and also said only exemptions were placed under section 3518 dealing with investigations. In 2000, the Supreme Court in U.S. v. Hubbell, 530 U.S. 27, 35 (2000) said it was a "regulatory requirement, such as filing an income tax return,..." while explaining the reach of the Fifth Amendment." Yet, the 5th, 6th, 7th, 9th and 11th said "not a regulation" and "no....violating a regulation" that these defendants were charged with violating. What then are the Defendant's needing attorney representation charged with violating in a criminal tax case?

They violated an IRS opinion that is clearly subject to division even amongst the Circuits. Then enters the 1995 PRA and everything changed so drastically in favor of the taxpayer that the IRS even refuses to acknowledge the 1995 PRA even exists to this day (intended to eliminate exemptions for several agencies including IRS). Look in the Instruction Booklet since 1996 it has said "Paperwork Reduction Act of 1980" when explaining its instruction book notice. See Revenue Ruling 2006-21 dated April 10, 2006 explaining the PRA of 1980 (11 years after the 1980 PRA was replaced) and its reach. The department of justice and Commissioner of IRS refuse to put the words "of 1995" after citing the PRA or Paperwork Reduction Act in their written briefs. Why, because the requirements of 3506(c). What does that say you ask? The Form the agency is asking for approval has a process it must go through. One of those steps is an evaluation to:

"ensure that each information collection-(1) is inventoried, displays a control number and, if appropriate, an expiration date; (2) indicate the collection is in accordance with the clearance requirements of section 3507; and (3) informs the person receiving the collection of information of - (I) the reasons the information is being collected; (II) the way such information is to be used; (III) an estimate, to the extent practicable, of the burden of the collection; (IV) whether the responses to the collection of information are voluntary, required to obtain a benefit, or mandatory; and (V) the fact that an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number.

Setting aside the clear fact none of these requirements appear on form 1040((unless "it" displays a valid control number)(3512 says "issued in accordance with the chapter). You see the words "reason the information is being collected"? That is where the legal requirement comes in. That is where the notice is to be given. This is why the form cannot comply. 5 CFR 103 says that OMB does not consider the Form 1040 because it is a command of section 6011. 6011 says "When required by regulation proscribed by the Secretary..." In the face of all this, the normal person defense attorneys run into in a criminal tax case are people that are either asking "show me the law" or "I cannot find the law" or they are so confused they are stuck in the thick deep mud.

I do not care what the underlying reasons each defense attorney learns from his client as to what he explains privately he believes motivated his lack of action or conduct in a criminal tax case. Before any defense has any burden, the Government must shift that burden and that must be by evidence. As soon as someone raises this issue pre-indictment, post indictment, pre-trial, post trial, sentencing, stay request and so forth, they will have had the Government's theory going so many directions, the rule of lenity is the only option, other than unconstitutionally vague.

In one case, the Jury was so confused about the meaning of evade that they asked the Court to tell them what the legal difference was between it and avoid. This was because the Court used both evade and avoid in the same willfulness instruction (over defense objections). On appeal, the Government told the 7th Circuit that evade is such a commonly understood term that a person of average intelligence would know its meaning. Yet 12 jurors did not know, the Federal Judge did not know (he turned to blacks law 6th edition and even argued with his law clerk in front of counsel over which version of black's law to use). Yet, the defendant should have known. In this same case, the Government, on appeal told the 7th Circuit that the Bryan Court was wrong when they said the jury had to find the Defendant was aware of the specific provision of the law he was charged with violating. The Government argued that the Cheek decision does not hold what the Supreme Court in Bryan said it held.

So, yes there may be some confusion and some far out and crazy reasons attorneys meet their clients but nothing is more crazy than arguing that the defendant purportedly knows what no juror knows, no judge knows, no appellate court can say with any consistency, or the IRS and its attorneys know. Then there is arguing the Supreme Court is wrong. Now that is crazy! I read in black's law that crazy is when a department of justice attorney tells an appellate court (7th) that was reversed by the Supreme Court (Cheek), that the holding of that Supreme Court did not say what the Supreme Court said it said in another later Supreme Court decision dealing with the criminal tax exception doctrine under the meaning of willfulness (Bryan).(of course, emphasis added)

Wonder what evidence the Government presents to a Grand Jury to show willfulness under the exception in criminal tax cases? Wonder how many other cases a Grand Jury deals with that has "willfulness" in it as an element but not the exception? Wonder if they could get that confused? Wonder if someone should challenge an indictment when the word "willfully" appears as an allegation but does not plead the components of the exception?

So, I would say, that regardless of why any attorney has his client in the first place, the attorney is supposed to posses some special skill and in criminal tax cases he should produce a special skill in knowledge of the special meaning of willfulness. When he does not possess that skill, the only crazy thing his client did was allow that attorney to represent him and the only crazy person in that relationship is the attorney who attracts his client by the presumption he possesses this special skill that his pleadings and defenses show he does not posses.

No person shall be subect to any penalty for failure to comply with an information collection request unless the form displays a valid OMB control number issued in accordance with this (sub) chapter. It is the law.

Lindsey Springer



Failure to Provide Bill of Particulars
Explanation

From Lindsey Springer

In March, 2007, the Government was asked to provide Defendant Michael Burt a Bill of Particulars explaining the Grand Jury Indictment as it clearly did not plead the exception announced by the Supreme Court in Cheek(1991), Ratzlaf(1994) and Bryan (1998) regarding the elements or components of "willfulness."

The District Court directed the Magistrate to oversee the Motion for Bill of Particulars and the Magistrate ordered the Government to respond to the Motion by April 2, 2007. The Government did not file any response. Accordingly, the District Court Judge rescinded the Magistrate's authority over the Motion and decided to have no hearing since the Government did not respond.

The District Court then GRANTED the Motion for Bill of Particulars and ordered the Government to file the Bill of Particulars within 14 days from April 19. 2007. The 14th day tocked yesterday at 11:59.599999999999. At 12:01 or thereabouts, Mr. Richey, for Mr. Burt, filed a Motion to Dismiss the grand jury indictment with prejudice on grounds the government, in failing to file the bill of particulars, failed to prosecute the indictment.

Today, the Court issued an Order that a hearing be held on May 31, 2007, just a few days before the scheduled trial, on Mr. Richey's Motion to Dismiss for failure to prosecute. Hmmmmmm! There must be something in the Motion for Bill of Particulars the U.S. Department of Justice cannot or chooses not to answer. Could it be that they have never presented any evidence of willfulness under the Cheek exception in criminal tax cases?

In an unrelated case, but in a related issue, the DOJ told the 7th Circuit that the Supreme Court was wrong in the Bryan decision where they said "the jury must find the Defendant was aware of the specific provision of the tax code he is accused of violating. See U.S. v. Cheek at 201" A stay request was presented by Mr. Barringer in that case for Mr. Patridge in which the Seventh Circuit ordered the DOJ to address the "stay request" by May 14, 2007. Another tick tock so to speak.

7th Circuit Docket

Lindsey Springer 5-4-07



Bill of Particulars Explained


Rules of Procedure do not allow “discovery” in a Traffic/Criminal type of case. Procedure does allow a Bill of Particulars.
Rules and Definitions

* Federal Rules of Criminal Procedure, III. GRAND JURY, INDICTMENT, INFORMATION

Rule 7. The Indictment and the Information

(f) Bill of Particulars. The court may direct the government to file a bill of particulars. The defendant may move for a bill of particulars before or within 10 days after arraignment or at a later time if the court permits. The government may amend a bill of particulars subject to such conditions as justice requires.
* Particulars
The details of a claim, or the separate items of an account. Where these are stated in an orderly form, for the information of a defendant, the statements is called a 'bill of particulars'. See Particulars of criminal charges. Black’s Law Dictionary, 5th Edition, p. 1008 Particulars of criminal charges - A prosecutor, when a charge is general, is frequently ordered to give the defendant a statement of the specific acts charged (bill of particulars). Fed Ruls Crim Proc Rule 7. See Bill Black's Law Dict. 6th Ed., page 1119; 5th Ed. P 1008

* Bill of Particulars –

The particular events to be dealt with in a criminal trial; advises the defendant and the court of the facts the defendant will be required to meet. WordWeb Dictionary

Common Law Proceedings and Practice.

A written statement or specification of the particulars of the demand for which an action at law is brought, or of a defendant’s set-off against such demand (including dates, sums, and items in detail), furnished by one of the parties to the other, either voluntarily or in compliance with a judge’s order for that purpose. It is designed to aid the defendant in interposing the proper answer and in preparing for trial, by giving him detailed information regarding the cause of action stated in the complaint. In jurisdictions whichhave adopted the Rules of Civil Procedure, the bill of particulars has been replaced by the various discovery devices (Fed.R. Civil P. 26 et seq.) and by motion for more definite statement (Fed.R. Civil P. 12(e)). See however Criminal /?law below with respect to bill of particulars in criminal cases. Black’s Law Dictionary, 5th Edition, p. 150 Criminal law.

Form of discovery in which the prosecution sets for the time, place, manner and means of the commission of the crime as alleged in complaint or indictment. Fed.R.Crim.P. 7. The purpose of a “bill of particulars” is to give notice to the accused of the offenses charged in the bill of indictment so that he may prepare a defense, avoid surprise, or intelligently raise pleas of double jeopardy and the bar of the statute of limitations; it was not designed to perform the function of a discovery device. Com. V. Mervin, 230 Pa.Super. 552, 329 A.2d 602, 605. Black’s Law Dictionary, 5th Edition, p. 150

Form or means of discovery in which the prosecution sets forth the time, place, manner and means of the commission of the crime as alleged in complaint or indictment. It is one method available to defendant to secure default of charge against him. Fed Ruls Crim Proc Rule 7. The purpose of the "bill of particulars" is to give notice to the accued of the offenses charge in the bill of indictment so that he may prepare a defense, avoid surprise, or intelligently raise pleas of double jeopardy and the bar of the statutue of limitations. Co. v Mervin 230 PA. Super 552, 326 A3d 602, 605. Black's Law Dict. 6th Ed, page 165
How to Obtain a Bill of Particulars
Prior to arraignment and before any trial a person against whom the government charged a crime would wisely request a Bill of Particulars by preparing a motion pursuant to Fed Rules of Criminal Procedure (FRCP) Rule 7 andserving it upon the Prosecutor. Procedure dictates that the following accompany the motion:
1. a Memorandum of Law in Support of the Motion (required),

2. an Affidavit or declaration (optional), and
3. a Certificate of Service (required).
References to Usage of Bill of Particulars
* Using Bill of Particulars in a rape case in Ohio: as a result of information gleaned from the Bill of Particulars, Appeals Court reversed and remanded to the lower court - http://www.justicedenied.org/state_v_love_2006-ohio-6158.pdf
* Using Bill of Particulars to get details on a case: http://kirkosborn.com/Motions/MotionforBillofParticulars.pdf

* Louisana legislation on using Bill of Particulars: http://www.legis.state.la.us/lss_doc/lss_house/CHC%5CDoc%2073462.html
Art. 871. Effect of inconsistent or limiting allegations of a bill of particulars
A. The court shall dismiss the petition unless its defects are cured by a supplemental bill of particulars if it finds from the bill particulars and the petition either that:

(1) No delinquent act cognizable under the provisions of this Code was committed.

(2) The child named in the petition did not commit the delinquent act charged.

B. The defect will be cured if the district attorney furnishes, within a period fixed by the court, not to exceed three days from the order, another bill of particulars which either by itself or together with any particulars appearing in the petition so states the particulars as to make it appear that the offense charged was committed by the defendant.

C. If the district attorney fails to furnish a sufficient bill of particulars when ordered to do so by the court, the court may

dismiss the petition.

Acts 1991, No. 235, §8, eff. Jan. 1, 1992.
Sample Order Granting Bill of Particulars 

IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF NEW MEXICO 

UNITED STATES OF AMERICA,                         No. CR 99-1417 JP

Plaintiff, 

                  vs. 
 

WEN HO LEE, 

Defendant. 
   
                                   ORDER 



    On June 26, 2000, at a hearing on Defendant’s Motion for Bill of Particulars (Doc.
    No. 60), Defendant was present in person and was represented by attorneys Mark Holscher,
    Nancy Hollander, John Cline and K.C. Maxwell;
    

    

    Plaintiff was represented by Assistant United States Attorneys George Stamboulidis,
    Robert Gorence and Laura Fashing. After hearing arguments of counsel and having
    considered the parties’ briefs, the Court ruled that Defendant’s Motion for Bill
    of Particulars should be granted to the extent that by July 5, 2000, counsel for
    the Plaintiff should file and serve a bill of particulars listing each separate
    “foreign nation”--as that term is used in 42 U.S.C. §§ 2275 and 2276-- that the
    Government has not ruled out as one of the countries Defendant intended to advantage.
    The Government represented that this list would not exceed a dozen countries and
    would actually be closer to half a dozen. The Court determined that the Government
    may, in its bill of particulars, also preserve its position that at the time the
    Defendant obtained information, allegedly in violation of 42 U.S.C. §§2275 and 2276,
    he intended to secure an advantage for various foreign nations without, at that
    time, having in mind particular foreign nations. IT IS THEREFORE ORDERED THAT Defendant’s
    Motion for Bill of Particulars (Doc. No.60) is granted to the extent that the Government
    will be required to file and serve a bill of particulars byJuly 5, 2000 providing
    the information set forth above. ___________________________________ UNITED STATES
    DISTRICT JUDGE


Plea Bargaining

This article is not written by Dr. Clarkson and is for informational purposes only.

Many criminal cases are resolved out of court by having both sides come to an agreement. This process is known as negotiating a plea or plea bargaining. In most jurisdictions it resolves most of the criminal cases filed.

Plea bargaining is prevalent for practical reasons. Defendants can avoid the time and cost of defending themselves at trial, the risk of harsher punishment, and the publicity a trial could involve. The prosecution saves the time and expense of a lengthy trial. Both sides are spared the uncertainty of going to trial. The court system is saved the burden of conducting a trial on every crime charged. Either side may begin negotiations over a proposed plea bargain, though obviously both sides have to agree before one comes to pass. Plea bargaining usually involves the defendant's pleading guilty to a lesser charge, or to only one of several charges. It also may involve a guilty plea as charged, with the prosecution recommending leniency in sentencing. The judge, however, is not bound to follow the prosecution’s recommendation. Many plea bargains are subject to the approval of the court, but some may not be (e.g., prosecutors may be able to drop charges without court approval in exchange for a "guilty" plea to a lesser offense).

Plea bargaining is essentially a private process, but this is changing now that victims rights groups are becoming recognized. Under many victim rights statutes, victims have the right to have input into the plea bargaining process. Usually the details of a plea bargain aren’t known publicly until announced in court.

Other alternatives are also possible in the criminal justice system. Many states encourage diversion programs that remove less serious criminal matters from the full, formal procedures of the justice system. Typically, the defenda nt will be allowed to consent to probation without having to go through a trial. If he or she successfully completes the probation - e.g., undergoes rehabilitation or makes restitution for the crime - the matter will be expunged (removed) from the records.


 

Illinois Supreme Court rules state income tax is unconstitutional

Congratulations to Valdy. His Illegal Tax Collection lawsuit against the IRS is on my website under Collections. He also won an injunction against an illegal levy by IRS. Many Patriots are winning smashing victories in the courts when they follow procedures.

Perhaps the biggest part of this story isn't that the Illinois Supreme Court ruled that the state income tax is unconstitutional — perhaps the biggest part of the story is the MEDIA COVER-UP.  Have you seen this anywhere?  It isn't on any wire services, not Reuters, not UPI, not AP. 

Here's the decision: 

THE PEOPLE OF THE STATE OF ILLINOIS , Appellant,

v.

VALDY OLENDER et al., Appellees.

Opinion filed December 15, 2005.

Docket No. 98932-Agenda 7-September 2005.

In a nutshell, finance bills have to be free standing according to the Illinois state Constitution.  The income tax was mixed up with a bunch of other bills. So why isn't the media reporting one of the biggest stories of the year?  

Can you imagine the chaos when millions of "taxpayers" demand refunds for years of payments to a tax that was unconstitutional from the day it was passed?  Where's the media firestorm over this?  

To view the case,click here.

 

 

UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE,
v.
LAWRENCE COHEN, DEFENDANT - APPELLANT.
UNITED STATES OF AMERICA , PLAINTIFF - APPELLEE,
v.
IRWIN A. SCHIFF, DEFENDANT - APPELLANT.
UNITED STATES OF AMERICA , PLAINTIFF - APPELLEE,
v.
CYNTHIA NEUN, DEFENDANT - APPELLANT.
[6]     
Appeal from the United States District Court for the District of Nevada Kent J. Dawson, District Judge, Presiding. D.C. No. CR-04-00119-KJD.
[7]     
NOT FOR PUBLICATION
[8]     
MEMORANDUM*fn1
[9]     
Argued and Submitted November 5, 2007 -- San Francisco , California
[10]    
Before: THOMAS, TALLMAN, and IKUTA, Circuit Judges.
[11]    
Irwin Schiff and Cynthia Neun appeal various issues arising from their convictions following a jury trial, and Schiff appeals his sentence.*fn2 We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm as to all issues addressed here.
[12]    
First, the district court did not err by failing sua sponte to hold a competency hearing for Schiff. The evidence before the district court did not raise a bona fide doubt as to Schiff's competence to stand trial. See Odle v. Woodford, 238 F.3d 1084, 1087 (9th Cir. 2001). Although Schiff submitted reports from two doctors that he suffered from a delusional personality disorder, those reports do not establish any connection between Schiff's delusional views about tax laws and his ability to understand the charges against him or to defend himself at trial. We are satisfied that the record shows Schiff was legally competent.
[13]    
Second, Schiff's waiver of the right to counsel was knowing, intelligent and unequivocal. See United States v. Arlt, 41 F.3d 516, 519-20 (9th Cir. 1994). At the first Faretta hearing, the magistrate judge extensively discussed with Schiff the nature of the charges against him, the possible penalties, and the dangers and disadvantages of self-representation. See United States v. Farhad, 190 F.3d 1097, 1098-99 (9th Cir. 1999). At the second Faretta hearing, Schiff vacillated between wanting a lawyer to represent him, wanting a lawyer to defend as to some but not all parts of the trial, wanting standby counsel, and wanting to represent himself without the assistance of standby counsel. He had the right under the Constitution to do so. Ultimately, Schiff made up his mind and chose the last option. We believe that his decision was the product of deliberation, not "caprice," Adams v. Carroll, 875 F.2d 1441, 1445 (9th Cir. 1989), thoughtlessness, or "emotional outburst." See United States v. Hernandez, 203 F.3d 614, 621 (9th Cir. 2000). Therefore, his waiver was valid.
[14]    
Third, the district judge correctly denied Schiff's motion to recuse. The motion was untimely, and there was no evidence that would cause "a reasonable person with knowledge of all the facts" to question the judge's impartiality. Clemens v. U.S. Dist. Ct. ,428 F.3d 1175, 1178 (9th Cir. 2005) (internal quotation marks omitted).
[15]    
Fourth, we reject Schiff's argument that the evidence against him was insufficient to support the guilty verdict. The evidence of his guilt was overwhelming, particularly the evidence that he intended to deceive the government through the use of "zero returns." A reasonable finder of fact could conclude that each element of the crimes charged was established by the evidence beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319 (1979).
[16]    
Fifth, the district court did not abuse its discretion in denying Neun's motion to sever. Neun fails to point to a specific trial right that was compromised, or even to explain how she was prejudiced by the joint trial. See Zafiro v. United States , 506 U.S. 534, 539 (1993). She has demonstrated nothing more than an abstract possibility that the jury perceived a connection between Schiff's courtroom antics and her defense that notwithstanding Schiff's behavior, her erroneous views about federal income tax laws were sincerely held.
[17]    
Sixth, the district court properly excluded a letter by a Nebraska attorney that purportedly endorsed Neun's erroneous views that she was not violating the tax code. The letter was irrelevant because there was no evidence that Neun relied on it in forming her allegedly good faith belief in the legality of the zero return. Also, the letter posed a substantial danger of prejudice because it was written by an attorney and contained misstatements of the law.
[18]    
Seventh, we find no error in the district judge's behavior at trial. Schiff argues that the district court waited too long to rule on certain pre-trial motions. Virtually all of those motions were untimely, and with respect to the timely ones, the magistrate judge promptly recommended denial of the motions because they were frivolous. Although the district court did not actually adopt the magistrate judge's recommendations until shortly before trial, Schiff could not have had a realistic expectation that the district court would reject the magistrate judge's recommendations and hold, for example, that the Constitution does not grant Congress the power to impose direct income taxes. Moreover, Schiff failed to ask for a continuance, and he fails on appeal to articulate how he was prejudiced by the delay.
[19]    
Schiff is incorrect that he was prejudiced by the district judge's "intemperate remarks." With one exception, all of those remarks occurred outside the presence of the jury and therefore could not have prejudiced Schiff. Only one allegedly intemperate remark occurred in the jury's presence, and that remark was not inappropriate. Even if it was, the error was harmless.
[20]    
The district judge did not err in briefly questioning a government witness. The questions posed do not demonstrate judicial bias and even if they did, any error was harmless. See Kennedy v. Los Angeles Police Dep't,901 F.2d 702, 709 (9th Cir. 1990) (overruled on other grounds). The district judge did not err by giving a sua sponte mid-trial instruction to the jury. There is no rule barring mid-trial jury instructions, and the instruction at issue accurately states the law.
[21]    
Finally, Schiff's sentence is not unreasonable. The record shows that the district court considered in depth all of the relevant factors listed in 18 U.S.C. § 3553(a), including Schiff's mental health. The district court was not required to mention the role Schiff's age played in the calculation of his sentence. See United States v. Mix,457 F.3d 906, 912 (9th Cir. 2006).
[22]    
AFFIRMED.
Opinion Footnotes
[23]    
*fn1 This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
[24]    
*fn2 This memorandum disposition does not address any issues raised by Appellant Lawrence Cohen. His conviction is reversed and his sentence is vacated for reasons discussed in the accompanying published opinion. Nor does this memorandum disposition address Schiff's fifteen criminal contempt convictions and the sentences he received for those convictions. Those convictions and sentences are addressed in the accompanying published opinion. There, we vacate the contempt convictions and remand to allow the district court to appropriately certify the contumacious behavior under Federal Rule of Criminal Procedure 42(b) before re-imposing Schiff's convictions and punishment.

ntempt convictions and remand to allow the district court to appropriately certify the contumacious behavior under Federal Rule of Criminal Procedure 42(b) before re-imposing Schiff's convictions and punishment.
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