Larken Rose erroneously sentenced to 15 months

Here's the propaganda piece generated by your government justice department that won't answer a letter about the law: http://releases.usnewswire.com/GetRelease.asp?id=57108

And here is the flaw in the slaw: "At trial, Judge Baylson instructed the jury that Rose's Section 861 argument was incorrect as a matter of law."

You see, unfortunately for the federal government, the judge's erroneous pronouncement is no substitute for the law, and wishing won't make it so. The government still has the burden to prove that Larken Rose had a legal duty to perform. Without that proof, the conviction is without merit, no matter how big a club the government wields.

For those who remain confused by the law . . .

The United States Constitution guarantees a criminal defendant both the right to have a jury decide his case and a right to have the prosecutor prove to that jury, beyond a reasonable doubt, every element of the charged offense. To preserve these guarantees, the trial court is required to properly instruct the jury on each and every element of the crime.

Larken Rose was charged with five counts of willful failure to file federal income tax returns. The offense has three elements*:

1. The person must have a legal duty to perform.
2. The person must fail to perform the legal duty.
3. The person must know that he failed to perform the legal duty.

Did the prosecutor prove that Larken Rose had a legal duty to perform? No, he did not. The judge told the jury that he would give them the law, thereby relieving the prosecutor of his legal obligation to prove the first of the three key elements of the offense.

Did the prosecutor prove that Larken Rose failed to perform the legal duty? No, he did not. Not having proved the first element, the second element begs the question. However, Larken Rose conceded that he did not perform the action that the prosecutor merely claimed (but didn't prove) was a legal duty. Larken Rose went to great lengths to explain to the government many times over the years what he was doing and precisely why.

Did the prosecutor prove that Larken Rose knew that he failed to perform the legal duty? No, he did not. This, too, begs the question, since the prosecutor did not prove the first element, and no legal duty was established.

Was Larken Rose allowed to present to the jury the material he relied on, using a level of detail that was commensurate with the complexity of the material? No, he was not. The videotaped material he presented was greatly abbreviated by the court, and the jury was prevented from hearing any of it.

Did the judge properly instruct the jury regarding the prosecutor's obligation to prove the three elements of the alleged offense? No, he did not. Instead, the judge improperly preempted the prosecutor's obligation to prove to the jury that Larken Rose had a legal duty to perform and merely proclaimed that it was true.

The jury, being none the wiser after the jury instructions were read, had no idea that the prosecutor had failed to prove Larken Rose's guilt beyond reasonable doubt. Moreover, they had no idea that they didn't need to agree with Larken Rose--or believe his position was reasonable--in order to find him not guilty. Unknown to them, what they had to do was judge whether the prosecutor had proved all three elements of the offense beyond a reasonable doubt.

Left with nothing to deliberate but their lunch menu, the unwitting jury quickly came to an impossible conclusion: guilty on all counts.

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*The manual of the Tax Division of the Department of Justice, which is the instruction manual for US attorneys who actually prosecute tax law violations, reveals the three elements:

10.04[1] Elements
To establish the offense of failure to make (file) a return, the government must prove three essential elements beyond a reasonable doubt:
1. Defendant was a person required to file a return;
2. Defendant failed to file at the time required by law; and,
3. The failure to file was willful.

That same manual provides the definition of willfulness, as follows:

8.06 WILLFULNESS
8.06[1] Definition
Willfulness has been defined by the courts as a voluntary, intentional violation of a known legal duty… Willfulness is determined by a subjective standard, thus the defendant is not required to have been objectively reasonable in his misunderstanding of his legal duties or belief that he was in compliance with the law. Cheek v. United States, 498 US 192 (1991)