Habeas Corpus Motions

            Hopefully most of you who are reading this article will not need to file any Habeas Corpus motions.  Prisoners use these motions.  The Anti-Terrorism Act of 1996 has revised habeas corpus proceedings.  The law creates a new one-year statue of limitation for filing.

            In the past, Section 2255 motions could be made at any time.  Now, however, there are significant time restrictions. Many people raise the ineffective assistance of counsel issue.  Other issues that sometimes get relief are:

(1) The sentence imposed was in violation of the United States Constitution.  (2) The court didn't have the jurisdiction to impose such a sentence.  (3) The sentence was in excess of the maximum authorized by law. (4) The sentence is otherwise subject to collateral attack. 

            The court can grant relief if the conviction is void for lack of personal or subject matter jurisdiction, the conviction is unconstitutional, multiple sentences were imposed for a single violation or the sentence authorizes a punishment in excess of the maximum authorized by law.

            The two most important cases dealing with ineffective assistance of counsel are United States v. Cronic and Strickland v. Washington.  A defendant must show that counsel's performance was deficient and he must show that counsel's performance prejudiced the defense. 

The Asset Forfeiture Laws

            Even if you are completely innocent, government agents can seize assets and force you to spend thousands of dollars trying to get them back.  There are now over 200 Federal statutes that allow the seizure of property.  Since 1984, the Feds have seized over $4 billion from the citizens of this country. Here are some examples of the abusiveness of this situation. 

            * In Chicago, the police can confiscate the property of anyone who has an unregistered handgun.

            * Customs agents seized $19,000 from Gilberto Gomez when he was crossing the border.  Gilberto could prove he got the money in a worker's compensation settlement.  The Customs Service did not file criminal charges against Gilberto but they refuse to give the money back.

            * Iowa police took a specially equipped handicapped vehicle from a woman who was accused of stealing a $25.00 sweater.

            * California police seized over $1,000 in cash from a T-shirt vendor.  They found no drugs in his possession and never prosecuted him.  The San Jose Mercury News stated:  "All it takes to lose your money is an unconvincing or undocumented explanation of where you got it."

            * Utah police raided the Garcia home and confiscated their house and almost everything of value.  They refused to return the property even though they have provided no evidence that the Garcias were involved in any illegal activity.

            *  Federal agents seized the home of John Cwikla in Connecticut because an anonymous informant claimed that  Cwikla had allowed someone to store marijuana in the home. 

            *  In Oyster Bay, Long Island, police are authorized to confiscate any vehicle used in the commission of a graffiti crime. 

            *  In 1991, the Feds raided and confiscated a $395,000 fraternity house when they were going after a few hundred dollars of marijuana. 

            * Police in Oxnard, California, seized an entire city block on drug allegations.  After four years and hundreds of thousands of dollars in legal fees, the police were forced to give most of the property back to the innocent property owners.

            * In 1994, police stopped Albert Alexander in Los Angeles and confiscated $30,060 from him based on a police dogs bark.  The police did not find any drugs.  Albert had to fight for five years and spend thousands of dollars in legal fees to get his money back.

            * In Arizona, hundreds of cars have been seized from citizens during the decade of the 90s by state and local police.  According to the Arizona Republic, most have never been charged with a crime.

            * If a citizen wants to get back property that was seized by the Federal Government, he must post a bond of 10% of the value of the seized property.  Since it can cost upwards of $10,000 to sue the government, many people don't have much hope for justice.

            * The law gives police a great deal of discretion in how they spend their loot.  Many use the money to buy expensive stuff for themselves.  For example, the Greensboro, North Carolina police use assets from private citizens to pay for an exercise room with lots of expensive equipment.

            * In Erie County, New York the Sheriff used money from the forfeiture fund to buy himself a luxury car.

            * In Suffolk County, New York, the local prosecutor was driving a BMW confiscated from drug suspects.

            * In Illinois, local and state police operate on an "honor" system as to the use of private assets.  The police give themselves more leeway than they give to the citizens.

            * The Arizona auditor general reported in1993 that many state agencies could not account for the whereabouts of confiscated property. 

            * Asset forfeiture encourages thefts by the police.  In Los Angeles, police were convicted in 1994 for stealing money from drug suspects.  Los Angeles Sheriff Sherman Block said: "Unfortunately, since forfeiture laws are so vague and expansive, there may be little or no difference in practice."

Straight Thinking

            Those of you who have been in the Freedom Movement for a while and those of you who have worked with me for a period of time, know that things are not what they seem in the Freedom Movement. Many ideas sound good at first hearing to the uninitiated, but in reality, they do not work.  Remember that the law is not what you think it is.  The law is what a judge who is sitting on your case says it is.

Stop and look before you file an Exempt W-4 or a Zero Tax Return. It is better to be safe than sorry.

            The Internet has bought us an incredible explosion of individuals who are upset about the Federal Income Tax.  The forum is allowing the spreading of information at an unheard of level.  But unfortunately, the Internet does not contain a built in "baloney-detector."  Many individuals, who start using the approaches advertised on the Internet, do not have very well developed "baloney-detectors."

            As a result, many well-meaning citizens are pursuing avenues that are likely to cause them severe distress in the future.  For example, the Exempt W-4 issue is the biggest mistake ever made in the Freedom Movement.  The IRS has retaliated with criminal prosecutions and tax fraud penalties to prevent bankruptcies.  Also, if an individual has a job with a W-2, he is, by definition, not judgment-proof and the IRS can come after him without a court order and take his entire paycheck but for a few hundred a month.

            And yet, the number of individuals taking the exempt W-4 approach continues to grow.  I think it may be a bigger issue now than it was in the early 80's when this movement got its first burst of energy.

            Another idea that is causing untold misery is the "zero-tax return" issue.  Irwin Schiff and Lynn  Meredith and others have gone around the country telling people they can get a refund of taxes if they file a "zero" tax return.  They use the argument that wages are not income among other arguments. 

            The IRS has reacted to some of these returns with $500 frivolous return assessments.  In some cases, the IRS has mailed out large refund checks to individuals filing "zero" tax returns.  Well, unfortunately, it is an absolute fact that the IRS can refund money and then go after the person who got the refund.  A refund means nothing in terms of the legal argument. The IRS is not bound by the fact that it gave a refund.  Furthermore, the IRS, at times, deliberately refunds money for the purpose of farming an individual for a criminal case.  This is especially true in the case of high-earning-licensed professionals like doctors, chiropractors, engineers, etc.

            Some unscrupulous people have figured out that they can make a lot of money by telling people what they want to hear.  Everyone wants to hear that he doesn't have to pay taxes and that a few simple letters will stop all IRS harassment.  Some individuals even take the power of attorney for individuals and write the letters for them.  Of course, the IRS ignores the letters and ignores the powers of attorney and proceeds against the individuals anyway.

            Some individuals are selling "pure trust" organizations to people arguing that these entities protect assets and are not required to file returns even if they have income.  Unfortunately, if you set up a trust, you ruin the only decent argument you have to make against the requirement to file returns.  The Fifth Amendment does not apply to partnerships, trusts, corporations, etc.  It only applies in individual cases.  Furthermore, these unscrupulous salesmen completely ignore the great body of fraudulent transfer law.  The fact is that if you transfer assets to an entity when you owe money to the IRS, the liability follows the transfer.

            If you have filed an exempt W-4 or a "zero" tax return, I suggest that you immediately reconsider your actions.  If you wish to raise an argument in court, it is better to prepare an informal claim for a refund and then file suit in Federal Court and argue your argument.  The worst risk you take is the imposition of a fine for filing a frivolous lawsuit.  Remember that if you think you have a good issue and if that issue might overturn the Federal Income Tax System, there will be a judicial conspiracy to prevent your winning the case.  This battle is difficult to win in the courts.  We must educate the masses and people must use reasonable approaches to the problems discussed herein.  When enough individuals stop voting in favor of the Federal Income Tax on April 15, the system will change.  Until then however, many people will suffer greatly because they took bad advice from people who tell them what they want to hear to collect money.  Please think and look before you leap.  Hang in there and let's keep on keeping on.