Employer Simkanin Prosecution Ends in Mistrial

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Thought ya'll might be interested in this.

Judge Stymies Both Jury & Defense

DOJ Intends to Retry Simkanin ASAP

Jury Hung at 11-1 Favoring Acquittal

After almost 6 months of incarceration in isolation awaiting his federal
trial, non-withholding employer Dick Simkanin's trial ended this evening
in a mistrial after the jury was unable to reach a verdict on federal
charges that Simkanin failed to Withhold taxes from his employees.

Simkanin, a successful Bedford, Texas business owner, had been charged
with 12 counts of Willful Failure to Withhold employment taxes for his
employees and 15 counts of filing False Claims for requesting refunds of
tax pre-payments that had been made by Simkanin on behalf of those
employees.  

Facing years in federal prison, his trial lasted only hours, beginning
and ending yesterday - largely because the Court denied Simkanin the
opportunity present any expert defense witnesses or legal evidence
regarding the contested legal obligations under US income tax statutes.
Jury deliberations started this morning and the mistrial was declared
around 6 PM Central time. A report from several sources close to the
Simkanin team was that the jury hung 11-1 in favor of acquittal.

US Attorney Jarvis stated that he intended to retry Simkanin "as soon as
possible."  Simkanin, who has NO criminal record, was immediately
ordered back into federal custody by Judge John McBryde.

Reportedly contributing to the jury's inability to reach a verdict were
nine separate requests and questions from the jury including a request
to see a written copy of the jury instructions, a request to see a copy
of the Internal Revenue Code and for the judge to provide a copy of the
specific US statute that required Simkanin to withhold. Judge McBryde
refused these significant requests. According to court observers, Judge
McBryde also significantly impaired and repeatedly interfered with
defense counsel Arch McColl's cross examination of government witnesses.


One example of how Judge McBryde dispensed justice during the short
trial occurred following the testimony of one of the IRS expert
witnesses who testified that the definition of "employee" that applied
to Simkanin as an "employer" was found at Internal Revenue Code Section
3401 (which is for legal definitions), and defines "employee" as:

"For purposes of this chapter, the term "employee" includes an officer,
employee, or elected official of the United States, a State, or any
political subdivision thereof, or the District of Columbia, or any
agency or instrumentality of any one of the foregoing.  The term
"employee" also includes an officer of a corporation."

During a break, Judge McBryde requested US Attorney Jarvis for the legal
definition of "employee" to include in the jury instructions. Defense
attorney McColl then attempted to show the judge the definition in the
IRC at section 26 USC 3401 that had just been testified to by the IRS
witness.  According to court observers, the judge dismissively "waved
off" McColl with a flip of the wrist and a comment, "I know what your
position is Mr. McColl, and I disagree.  That is not a definition. It
says 'includes' not 'defines'.  I want Mr. Jarvis' position."

According to courtroom observers, US Attorney Jarvis later recalled the
IRS employee to the witness stand, and the witness subsequently
"corrected" his previous testimony to affirmatively declare that the
definition of "employee" which applies to Simkanin was not from Section
3401, but rather from Section 3121(d).

Although the definition of "employee" found at 3121 is certainly more
encompassing than the legal definition first asserted by the IRS
witness, the subsequent definition may ultimately cause unanticipated
problems for the government if it attempts to retry Simkanin.  The
following citation is from section Section 3121(e), which, (per the
"corrected" testimony of the IRS witness), also contains legal
definitions for the terms "State" and "United States" for the purposes
of the withholding chapter that Texas resident Simkanin was allegedly
charged with violating:

(e) State, United States, and citizen
      For purposes of this chapter -
      (1) State
        The term ''State'' includes the District of Columbia, the
      Commonwealth of Puerto Rico, the Virgin Islands, Guam, and
      American Samoa.
      (2) United States
        The term ''United States'' when used in a geographical sense
      includes the Commonwealth of Puerto Rico, the Virgin Islands,
      Guam, and American Samoa.      

      An individual who is a citizen of the Commonwealth of Puerto Rico
      but not otherwise a citizen of the United States) shall be
      considered, for purposes of this section, as a citizen of the
      United States.
During the two previous years, Simkanin had appeared before two separate
federal grand juries, each apparently refusing to indict him after
hearing Simkanin directly testify about the true legal substance of the
US Income Tax Code.  At each of these grand jury proceedings, Simkanin
also provided each grand juror with substantial documentary evidence
showing both the constitutional problems with the income tax system and
evidence of how our government has conspired to contain these truths
through deception and abuse of the public trust.

According to sources on the defense team, in early October, Simkanin,
believing his trial was being "railroaded" by the federal prosecutor,
acting in collusion with the District court, plead guilty to a single
tax charge.  Weeks later, the plea bargain was withdrawn by the DOJ
because of an error in the government's original plea offer.  Simkanin,
apparently, reconsidering his earlier decision to plea, decided to go to
trial and seek bona fide justice.

Today, he almost got it.

More details will follow as available...
 


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