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United States v. Patridge:
Judge Easterbrook is at his most amusing when rejecting frivolous arguments, and he shows himself in fine form in today's tax protestor decision. Hat tip: Decision of the Day.
Ben P (mail):

Patridge’s brief in the criminal appeal presents 19
issues, all frivolous. Many are in the style of tax-protest
arguments that we might expect from a layman representing
himself but do not expect to see in a brief filed by a
member of the bar.


ouch
11.14.2007 4:19pm
PatHMV (mail) (www):
You know the opinion is going against you when it begins:

EASTERBROOK, Chief Judge. Denny Patridge, who owned an insurance agency, decided to make life hard for the revenooers by transferring his income to an offshore trust and then pretending that he had no income.


"Revenooers." Ouch.
11.14.2007 4:31pm
JohnThompson (mail):
Well, at least Partridge can rest easy knowing his money is being well spent by the government in accord with Wickard v. Filburn. Freedom? Who needs that when we've got welfare?
11.14.2007 4:32pm
PatHMV (mail) (www):
On a serious note, I think Judge Easterbrook may have unintentionally given a new theory for the tax protester crazies, who are well known to be highly selective when quoting "the law." On page 6, Easterbrook says:

One reason for this is
that §7203 requires a “return” but does not define that
word or require anyone to use Form 1040, or any “official”
form at all. All that is required is a complete and candid
report of income.


I foresee hand-drawn crayon tax returns in the near future.
11.14.2007 4:38pm
Bruce:
More ouch: "[Plaintiff's counsel] has performed below the standard of a pro se litigant; we have serious doubt about his fitness to practice law.... [His statement of facts] contains not a single fact and verges on illiteracy. One might think that [counsel] had confused the 'Statement of Facts' section with the 'Summary of Argument' required by Rule 28(a)(8), except that this passage does not contain any argument (it is argument free, though full of assertion) and is immediately followed by a six-pagelong 'SUMMARY OF APPELLANT’S ARGUMENTS'."
11.14.2007 4:38pm
PatHMV (mail) (www):
Oh, and by the way, on page 7 and 8 he seriously lays into the lawyer. All you folks who get offended when judges do that, have at...
11.14.2007 4:40pm
Bruce:
Whoops, sorry, that's "defendant's counsel". Forgot it was a criminal appeal.
11.14.2007 4:40pm
OrinKerr:
JohnThompson,

What does this case have to do with welfare or Wickard v. Filburn?
11.14.2007 4:41pm
PatHMV (mail) (www):
Uber Ouch!

We therefore give Barringer [defense counsel] 14 days to show cause why he should not be fined $10,000 for his frivolous arguments and noncompliance with the Rules, and why he should not be suspended from practice until he demonstrates an ability to litigate an appeal competently and responsibly. See Fed. R. App. P. 38, 46(b), (c).
11.14.2007 4:43pm
GV_:
Bruce, I think defendant's counsel is probably equally bothered by this part of the opinion:

We therefore give [defendant's counsel] 14 days to show cause why he should not be fined $10,000 for his frivolous arguments and noncompliance with the Rules, and why he should not be suspended from practice until he demonstrates an ability to litigate an appeal competently and responsibly. See Fed. R. App. P. 38, 46(b), (c).

I've always maintained that appellate judges should not sanction an attorney -- whether by fine or by embarrassing the attorney in a published opinion -- until the attorney has had an opportunity to respond in a show-cause order. I think due process requires at least that. But when an attorney does something like this, I certainly won’t feel bad for him.
11.14.2007 4:47pm
wisconsindoug (mail):
everyone beat me to the good stuff. However, I learned a new word today in the judge's opinion, folderol:
Function:
noun
Etymology:
fol-de-rol, a nonsense refrain in songs
Date:
circa 1820

1 : a useless ornament or accessory : trifle 2 : nonsense
11.14.2007 4:57pm
GV_:
Whoops, Pat is clearly quicker than me.
11.14.2007 5:04pm
Brian G (mail) (www):
Quadruple OUCH!

Exactly what none of us attorneys even want to see in a written decision.

$10,000 bucks?!!! Glad I'm not this guy.
11.14.2007 5:06pm
TerrencePhilip:
The lawyer's behavior was ridiculous, though I think it's punishable for its frivolity rather than the number of issues raised- it's not surprising to see 19 assignments of error in a criminal appeal. Easterbrook definitely gives the impression the litigants are wasting his precious time even in nonfrivolous, if nonmeritorious, cases. I don't disagree with his actions in this case however.
11.14.2007 5:07pm
John Kindley (mail) (www):
The biggest lesson from this case is that when somebody tells you something crazy, like that they have a right to as big of a percentage of your honestly earned income as a bunch of politicians in a far off city agree to take, it's hard to argue with such an assertion without talking crazy yourself.
11.14.2007 5:10pm
Colin (mail):
This attorney also represents Jo Hovind, wife of notorious creationist preacher, tax protester, conspiracy theorist and all-around crazy person Kent Hovind. She is currently appealing her conviction for (I think) aiding and abetting the tax and bank fraud that got her husband 120 months. She got one year, but I think the court has allowed her to go free pending the appeal. It must be horrible to see a court publicly deride your attorney and best hope of freedom as grossly incompetent.

Does anyone know if he also represents Kent Hovind?
11.14.2007 5:11pm
Ben P (mail):
I don't know, but it would seem likely that if he's representing Jo, he's also representing Kent Hovind.

So, the plot thickens a bit. He's not just some counsel that passed off on rediculous arguments becuse his client asked him too, he's actually an attorney that actively represents tax protesters.
11.14.2007 5:25pm
Ex-Fed (mail) (www):
I loved these guys when I was a fed.

I sat through a lengthy argument by one who claimed that the USDC-CDCA lacked jurisdiction over him because the courtroom had a U.S. flag with a gold fringe, proving that it was only an admiralty court. The judge: "I'll pretend you're a boat."
11.14.2007 5:41pm
PatHMV (mail) (www):
I LOVE the "gold fringe" argument! Somebody should start a blog devoted to collecting the antics of these whackos. Certainly a collection of the best ways to debunk their various preposterous arguments would be invaluable to the young, inexperienced lawyers to whose lot handling such looney-tunes frequently falls.

Ex-Fed, did you ever deal with any of the ones who would add the copyright symbol to their name? This apparently affects their citizenship and revokes any debt incurred under their "old" name.
11.14.2007 6:00pm
Another Roger:
The Anti-Defamation League has a great web site called Idiot Legal Arguments full of cases dealing with these nutball arguments.
11.14.2007 6:04pm
NickM (mail) (www):
ExFed - was that Judge Keller?

Nick
11.14.2007 6:24pm
New Pseudonym (mail):
Patridge. (Typo in title)
11.14.2007 6:37pm
Ex-Fed (mail) (www):
PatHMV: Yes, I remember that argument. Also the one about how they weren't the defendant because the indictment had their name in capitals and that isn't their name.

NickM: I think it might have been Judge Hupp, God rest him. It was about 10 years ago, though.
11.14.2007 7:12pm
Colin (mail):
PatHMV, try the Tax Protester FAQ. It's a fantastic resource, and lots of fun to browse while imagining the goofballs who make the arguments that make the FAQ necessary.
11.14.2007 7:18pm
Brice Timmons (mail) (www):
How does one pass the bar without being able to identify a complete sentence? There are actual sentence fragments in the guy's "fact" section.
11.14.2007 8:09pm
CrazyTrain (mail):
Well, at least Partridge can rest easy knowing his money is being well spent by the government in accord with Wickard v. Filburn. Freedom? Who needs that when we've got welfare?

Wow; looks like we have a real-life tax-protester/nutjob in the comments section. . . .
11.14.2007 8:18pm
Ross H:
Of course the case was frivolous, but Judge Easterbrook does seem to have made a rather strange logical error. He states:


"How any of this could block a conviction for tax evasion is a mystery. Patridge evaded taxes by shuffling his income among trusts in an attempt to conceal it from the IRS. That crime does not depend on the contents of any form. Evading one’s taxes is illegal independent of the information one does or does not supply. Consider another example: the Clean Air Act requires businesses to curtail certain emissions using the best available technology, and to report on those emissions to the EPA. An error in the EPA’s forms might spare the business any penalties for bad information but would not license it to emit pollution without limit. The Paperwork Reduction Act does not change any substantive obligation.


This analogy is seriously flawed. The judge equates the legality of creating offshore trusts with polluting. But creating offshore trusts is not illegal in itself - it was the way they were reported in this case that created the violation. The comment that "Evading one’s taxes is illegal independent of the information one does or does not supply" is particuarly head-scratching. Most evasion of taxes is direct related to the reporting on a tax return. It is not illegal for a contractor to be paid in cash - it is a problem only if he doesn't report the information on his 1040.

If the Judge is going to enjoy himself to this degree in writing a decision, he should make sure his logic isn't as questionable as that of the lawyer he is sanctioning.
11.14.2007 8:52pm
Dave N (mail):
Jerold W. Barringer represented Patridge at trial, in the
Tax Court, and during the three appeals to this court. He
has performed below the standard of a pro se litigant; we
have serious doubt about his fitness to practice law. The
problem is not simply his inability to distinguish between
plausible and preposterous arguments. It is his disdain
for the norms of legal practice (19 issues indeed!) and the rules of procedure.
I think Judge Easterbrook was quite right to call this attorney out by name, since he did such a disservice to the legal profession. I am surprised I have the first comment that mentions this guy by name.
11.14.2007 9:33pm
David M. Nieporent (www):
Ross:
This analogy is seriously flawed. The judge equates the legality of creating offshore trusts with polluting. But creating offshore trusts is not illegal in itself - it was the way they were reported in this case that created the violation.
Easterbrook is not comparing the creation of the trusts to polluting; he's comparing not paying your taxes to polluting.

You're confusing the question of what you report with the question of what you pay. Tax evasion -- failing to pay what is owed -- is a crime independent of what you report.

The comment that "Evading one’s taxes is illegal independent of the information one does or does not supply" is particuarly head-scratching. Most evasion of taxes is direct related to the reporting on a tax return. It is not illegal for a contractor to be paid in cash - it is a problem only if he doesn't report the information on his 1040.
No; it's a problem if he doesn't pay the taxes on it, regardless of what he reports. Easterbrook's analogy is quite correct.

To be specific, if you make $40K and report $20K on your return and pay taxes on that $20K, you have committed two independent crimes: misreporting your earnings by $20K, and not paying taxes on the other $20K of your earnings.

The defendant's argument in this case was that he wasn't actually required to report that money, so he hadn't committed the first crime. Even if that were true -- it wasn't -- he had committed the second.
11.14.2007 9:50pm
Ross H:
David,

Your comment is certainly logical, but it it not what the Judge wrote. He does not refer to not paying taxes but that "Patridge evaded taxes by shuffling his income among trusts in an attempt to conceal it from the IRS." Simply shuffling income is not a crime.
11.14.2007 10:24pm
Tim S:
"ARGUED SEPTEMBER 5, 2007"? You'd think that if there's any case that should be submitted on the briefs, this is it. Wonder why the Seventh - and Easterbrook, nonetheless - bothered to hold argument.
11.14.2007 10:35pm
Dave N (mail):
I sat through a lengthy argument by one who claimed that the USDC-CDCA lacked jurisdiction over him because the courtroom had a U.S. flag with a gold fringe, proving that it was only an admiralty court. The judge: "I'll pretend you're a boat."
I have not laughed that hard in a long time. Thank you. That anecdote is priceless.
11.14.2007 10:52pm
TerrencePhilip:
Tim S,

if you listen to the oral argument you hear a little of the old Easterbrook bite; he usually goes quiet during frivolous appeals but the lawyer finally annoys him into saying: "The whole series of sham transactions proves his knowledge. The only sensible thing he could've done is plead guilty. Then he could've gotten a reduction." The lawyer balks after a little more of this, then says he disagrees with the judge, which prompts, "Fine. You can disagree all you like, but the jury convicted. And if you give your other clients advice along these lines, you're doing them a very serious disservice. They will end up in jail too."
11.14.2007 10:59pm
David M. Nieporent (www):
Your comment is certainly logical, but it it not what the Judge wrote. He does not refer to not paying taxes
Yes, he does; that's what "evading taxes" is.
but that "Patridge evaded taxes by shuffling his income among trusts in an attempt to conceal it from the IRS." Simply shuffling income is not a crime.
But shuffling income in an attempt to conceal it from the IRS is. And in any case, you're misreading what Easterbrook wrote. The fact that Easterbrook wrote that the guy was shuffling it was simply commentary on how Patridge was evading taxes.

Easterbrook was emphasizing that it wasn't a mere failure to report, but an active attempt to evade taxes by hiding the income.
11.14.2007 11:43pm
Duncan Frissell (mail):
Sometimes they win at trial, however.

Although others have tried to pay their employees in silver coin before and didn't get away with it.
11.15.2007 12:23am
Tim S:
TerrencePhilip,

Sure, Easterbrook went all mad on the guy...but why not just order the case submitted on the briefs? It's not like that giving him an "Easterbrook bite" or two would make him change his position - and isn't the opinion enough bites already? To me this just seems like a complete waste of time.
11.15.2007 1:19am
JohnEMack (mail):
I think Easterbrook's attack on the defendant's attorney is both smug and dangerous. To be sure, the attorney's arguments were both terrible and badly made. But the effect of the sort of sanctions imposed by Easterbrook is to insure that responsible attorneys are not going to represent defendants in cases like this for fear of sanctions. What are the alternatives? The defendant could be forced to have an attorney, perhaps a public defender, whom he believes is "rolling over and playing dead," i.e. making responsible but losing arguments which get him the same results as his current attorney. Or he can represent himself pro se, and the Court will again claim his arguments are frivolous and he is wasting the Court's time. Actually, on suspects that the Court prefers it that way. Its judges will spend about the same time on the job every week, whether they review frivolous cases or difficult ones, and such litigants actually make their job easier by resting their brain cells. And Judge Easterbrook gets to write funny opinions. At least people like Partridge aren't blowing things up to make their point.
11.15.2007 8:53am
Kenvee:
JohnEMack:

I don't think there's anything wrong with calling out egregious conduct. I have seen very, very few opinions where an attorney was mentioned by name, and all of them describe absolute egregious behavior that NO competent attorney would mistake for decent representation. (The only one of my cases that called out an attorney by name ended the opinion by referring the attorney to the disciplinary board.) If attorneys never get called to the carpet for this kind of behavior, then other attorneys think this kind of representation is acceptable to the courts. That has a worse long-term impact than a few borderline attorneys worrying that they might actually be incompetent after all.
11.15.2007 9:20am
questioner (mail):
I have a question that's a bit off-topic, but it might be interesting. These types of arguments about taxation seem ridiculous, but there are a few people who actually believe them and take them serious. I live in Ohio, and and have heard several times that Ohio wasn't really a state when the 16th Amendment was ratified, and thus the federal income tax is unconstitutional.
I'm not trying to start a fight, but I've noticed that some of these people also believe that the U.S. should return to the gold standard, and other monetary arguments which seem to me very far-fetched. You can see where I'm going with this. Ron Paul and his supporters take these arguments seriously, and I'm wondering if there's something to it, or is he (and are they) the equivalent of some of these weirdo tax rejectors?
There are many things about Ron Paul that I appreciate, but to what degree are his views similar to the "you can't tax us because..." fanatics who think the government can't tax their wages, or the income tax is unconstitutional, or the fringe of the flag affects jurisdiction, etc.?
Can any Ron Paul supporter make the distinction between his legitimate arguments (if they are) about abolishing the IRS, returning to the gold standard, etc., and some of these fanatical theories that we're dealing with in a case like the main one in this post?
11.15.2007 10:41am
Another Roger:
Tim S, the Seventh Circuit hears argument in pretty much every case in which both sides are represented by counsel. (And occasionally appeals where one side is not represented; I once saw a pro se party argue an appeal.) It's usually as little as 5 or 10 minutes per side, but the court apparently feels it's important to give each side the chance.
11.15.2007 11:00am
Colin (mail):
Questioner,

Try the Tax Protester FAQ I linked to above for legal responses to arguments like the supposed invalidity of the 16th Amendment. I'm not really up on Ron Paul, but I've been assuming all along that his arguments aren't so much that the IRS and fiat money are unconstitutional, but that they are bad policy. Am I wrong in that understanding?
11.15.2007 11:16am
David M. Nieporent (www):
Can any Ron Paul supporter make the distinction between his legitimate arguments (if they are) about abolishing the IRS, returning to the gold standard, etc., and some of these fanatical theories that we're dealing with in a case like the main one in this post?
Sure. One is a normative argument, which can be kooky but not factually incorrect, and one is a descriptive argument, which can be both. There shouldn't be taxes is a normative argument; the tax code was passed by secret mind control rays is a descriptive one. Ohio shouldn't be a state is normative; Ohio wasn't a state is descriptive (and wrong).


Colin: since Paul has repeatedly throughout his career called for the repeal of the 16th amendment -- see, e.g., here -- I think we can assume he implicitly has acknowledged it was validly passed.
11.15.2007 12:05pm
NickM (mail) (www):
questioner - The "Ohio wasn't a state argument" is both factually wrong (no formal resolution had been passed by Congress recognizing its admission, but that isn't the legal test) and totally irrelevant, because sufficient stated had ratified the Sixteenth Amendment even without Ohio (38 of 48, counting OH; 37 of 47, not counting OH).

There are Ron Paul supporters who hold to the ridiculous arguments. They're gravitating to him because he's calling for ending the income tax and repealing the Sixteenth Amendment, which are substantive goals they like. Most of them have room-temperature IQs, and don't understand the difference between his position and theirs.

Nick
11.15.2007 12:22pm
questioner (mail):
Thanks for the responses.
I suppose what concerns me is whether there is any linkage between the absurd arguments of some of Paul's followers, and the revolutionary arguments of Paul himself (face it, to eliminate the IRS and to return to the gold standard is revolutionary).
I appreciate the answers so far. This isn't merely a theoretical exercise to me. I'm considering voting for Paul in the Republican primary, but I have misgivings based on some of his followers. I don't at all believe in guily by association, but at some point one has to ask is the candidate encouraging a point of view that is a bit suspect. (On the other hand, I can't see myself voting for any of the other Republicans, and I might just sit this one out.) I can understand why his principled advocacy for freedom will appeal to fringe groups that he has nothing in common with. Hopefully his more mainstream supporters will make their voices heard.
Just to reiterate, I'm not a Paul-follower, I'm just intrigued by the man and am glad some of his ideas are getting a fair hearing. But I wince when I find out that some of his supporters also believe the anti-tax weirdness that we're discussing in this thread.
11.15.2007 12:38pm
Dave Hardy (mail) (www):
I thought the judge was being pretty hard on the attorney -- who after all has to defend a nutjob -- until I read the quotes from the brief. You can defend a nutjob without being incoherent.

Once had to defend one who had refused to pass through the bar, in the belief that this would render him subject to the jurisdiction of the court, and therefor was denied the right to defend himself pro se, as he desired. I laid out a rational theory of the case, with data on how the "bar" came to be (chairs were lined up in the Inns of Court during moot court sessions to separate the competitors from the students), to argue that the "bar" was purely a matter of historical form, and hardly so important as to override the right to an attorney, or the converse right to go pro se. Gave a good oral argument, too. Lost, but had a good, rational, presentation for a rather irrational position.
11.16.2007 12:21am
ReaderY:
Hmmmm...Agree that Easterbrook comment may not have been well-taken, suspect the IRS doesn't want to see taxes filed in crayon on brown paper bags and toilet paper.
11.16.2007 1:45am
ReaderY:
I think Judge Easterbrook is doing is giving notice that attorneys who represent tax protesters cannot simply be tax protester's mouthpieces -- they can't take their money to make arguments that make the protesters feel good. They have to make arguments courts find plausible or not make any arguments at all, and if they make frivolous arguments, courts will treat them like the protesters themselves.

Any sanctioning for frivolous arguments has some chilling effect, the hope is that this sort of argument is so bad and so wastes courts' time that it SHOULD be chilled.
11.16.2007 1:54am
mariner (mail):
Hmmmm...Agree that Easterbrook comment may not have been well-taken, suspect the IRS doesn't want to see taxes filed in crayon on brown paper bags and toilet paper.


Big Chief tablets, maybe?

;)
11.16.2007 11:10am