11-26-03

Employer Simkanin Prosecution Ends in Mistrial

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...