WAR STORIES – CASE OF THE MISSING PARATROOPER
“Keep to the high ground,” goes the adage; and in the Central Highlands of Vietnam, typically we did just that. After all, the ridge line provides for the easiest footing, navigation, and fields of fire. And especially if you are in command of an airborne platoon of 30 or so men, with no direct fire support from anyone, including gunships, grounded by foul weather; solo – that is, not within supporting distance of other airborne or mechanized infantry units, you are going to want as commanding a position as possible. Most especially if you are also out of range of even 175mm artillery; you are really on your own, and I mean on your own. The military crest of the ridge line – where you stand “in defilade,” just below the topographical crest so as to not draw attention, much less fire, where you are protected by less than a straight line of fire to your position – fits the bill as the most commanding position. Which is what I chose for navigation and patrolling, amongst huge boulders and under triple canopy, throughout that day.
Much earlier that day we had received resupply, food, and ammunition, if you can call C-rations and IRPs food, plus supply of a new airborne trooper, a “cherry,” all compliments of “The Jokers,” a name, a.k.a. “handle,” chosen by the helicopter company which provided the Huey helicopter, a.k.a. “slick,” complete with two pilots, two door gunners with an M-60 machine gun each, beaucoup ammo, and plenty of room for the supplies, and the cherry. But that was when the weather provided visibility, and I told the squad leader to look out for the cherry, keep an eye on him, make sure he obeys orders. The sergeant did just that, and on one of our rest stops, told the cherry to stay put in his position just behind a large boulder. And this cherry was obedient, but so cherry, being in country only a few days, that when we moved out again, he stayed put. He did exactly as he was ordered, and his sergeant had neglected to tell him to move out with the unit when the unit moved out. And this being a platoon paratrooper patrol, not a Ranger patrol of five to ten men, I had not required a “send up the count,” under which each trooper accounts for his presence, from end of the patrol to the beginning, by a tap on the shoulder of the man in front of him, and announcing, for example, “five; send up the count.”
So, you already have guessed the beginning of what happened – we begin to laager in for the pitch-black night, not having seen any signs of the Viet Cong, a.k.a. “Charlie,” part of Victor Charlie, the phonetic for VC, and Sergeant John Fitzgerald Quirk, fellow Ranger and a native of Boston, informs me, as he is “doing the rounds,” including relaying to me a head count in his best Sergeant Quirk Boston accent, that the cherry is missing. One of our men is missing in action, MIA. The cherry is, his squad leader believes, right where his squad leader left him – behind the boulder. This is not good. For the unit. For the squad leader. For me. And, especially, for the cherry.
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Fortunately, I had every faith in fellow Ranger Quirk; after all, this is what Rangers are well trained to do – in the mountains, jungle, and swamps – during nine weeks of arduous – no, extremely tortuous – Ranger school training: navigate anywhere, day or night, including back to your designated last rally point, a significant terrain feature so designated, periodically, every ten or so “clicks,” a.k.a. kilometers, with 10 clicks being about 6 miles. And I had to soon radio in a coded SITREP, situational report, to company headquarters, which was, by this time, only God knows where, with the SITREP due in about one hour, and if we had one man MIA, I would have to so report. This is not good for LT, Lieutenant Mac. Not good at all.
So, Ranger Quirk, with one man and one radio, two M-16s, and plenty of ammunition, ventures out into the pitch black Vietnam Central Highlands, with no trail to mark the way, utilizing his compass, following the back azimuth, hoping to get back before the SITREP is due. Hoping no VC have followed us and are in an ambush position; and to get back in our small perimeter defenses, he has to know the location of the trip wires so as to not cause alarm to the extent that we let go with the blast of a claymore mine or two. Not to fear; I had every faith in Ranger Quirk. And sure enough, he found the cherry right where his squad leader had left him, and all three returned safely to our laager site, just in time for a SITREP. All was quiet atop this ridge line in the Central Highlands of Vietnam, and I slept like a baby.
CASE OF THE MISSSING MILLIONS
Federal criminal law generally provides for a five year statute of limitations (SOL), meaning the government has five years from the commission of the crime to obtain a grand jury indictment and file it with the court. Once exception is the laundry list of tax crimes, for which Congress, in its divine wisdom or otherwise, provided IRS six years. In the case of conspiracy, whether it be tax or otherwise, the courts provided an additional government windfall – the five years begins to run from the last day of the overt act. So, for example, if the client, Bob, attempted to evade taxes for the year 2005 by his skimming a million dollars and not reporting it, keeping the cash under his mattress, and filed a false tax return on April 15, 2006, IRS has until April 15, 2011, to bring charges; but if Bob had George, knowing of the attempted tax evasion, funnel the cash to a Caymanian bank account a year later, 2007, the SOL did not run until 2012 because the SOL clock starts to tick from the last overt act in furtherance of the conspiracy.
But in this case of the missing millions, Bob was engaged in a conspiracy to not only evade taxes but to launder drug proceeds, money laundering, where Bob made two regular airline trips from Phoenix direct to London, each time carrying under his raincoat (how often does in rain in Phoenix?) $0.5M in cash (yes, he kept his coat on for the entire flight, perhaps anticipating foul weather in London?). The cash was then wired, not all at once, back to the United States, to a business in Phoenix, where it was laundered. Not content with the advice of his court appointed counsel – plea to a felony and hope for a lighter sentence in exchange for Bob’s testimony against Mr. Big – Bob, an indigent not paid much for his courier duties, asked the court to appointed another attorney; and under the Criminal Justice Act lottery system for appointed counsel, a “panel” of those private attorneys who volunteer their services and are selected by the federal judges, I was appointed.
I liked Bob. He viewed the world as I do: in linear fashion: A + B = C. If you know the value of A and B, then it is easy to calculate the value of C. Simple logic, which is the basis for the syllogism. Bob made it easy for me; he had already researched the law and solved the equation. Bob claimed he withdrew from the conspiracy more than five years prior to the filing of the indictment. One week more. And he had documentary evidence to prove it – a certified letter to co-conspirators. He told prior counsel this, the words falling on deaf ears. I listened closely, and filed a simple, two-page motion to dismiss for the government’s failure to timely file the indictment – the SOL was busted, and therefore the case should be dismissed. The court ordered the government to produce, in but two weeks of time, evidence sufficient to go to the jury on the issue of Bob continuing as a member of the conspiracy after the date of his letter. With no such evidence produced by the prosecutor, the court dismissed, with prejudice, all charges against Bob.
CASE OF THE MISSING PILOT
Back in those days, the early eighties, you could get a private pilot license with about sixty hours of flight time, for $2,000, and I had done so, but was now in the danger zone of the first 300 hours – in which a vast majority of pilots are accident prone. Or flat out kill themselves. But I was no stranger to the “highway to the danger zone,” and, in fact, the danger zone itself. Eighteen months of Vietnam combat; now this – flying a small plane, in the heat of July, from Phoenix, Arizona, to Laredo, Texas. I had wanted to fly in the military, but without the 20/20 vision (20/30 and 20/40) I was ineligible, so this made up for it; after all, the adrenaline rush is addictive, and I had to have my periodic fix. I had to become a lawyer so as to make enough money to buy my own plane, which a Nevada client gave to me as a $12,000 fee, not unlike the ’62 Vette the Texas client gave to me, also for $12,000, the going rate in the early days for criminal willful failure to file tax return cases. And the market value of both the Vette and the plane, an old “Hershey bar” Piper Cherokee, with wings rectangular like a Hershey bar, not tapered as with modern aircraft, was each $12,000, if that. This plane was a dinosaur, with one original “coffee grinder” (the dials) radio, a transponder, which sent out a signal to radar stations, but not very far. No loran or GPS, which provides accurate, hands free navigation. But heck, I was Ranger qualified – a map and compass would suffice, and navigation by pilotage, meaning the pilot, using compass, follows the map; and there was and is, contrary to popular believe, no requirement that private pilots file a flight plan so long as they stay out of “controlled airspace,” meaning near airports, atomic energy plants, military bases, and the like. I did monitor the frequency for “Albuquerque Center,” the air traffic control folks who maintain aircraft separation for those who chose to use it, a frequency which, in the (very) badlands of Texas, near Big Bend National Park, brought me no reception after a short while.
But, after clearing the 10,000-foot peaks between Phoenix and El Paso and refueling around noon at a small strip southeast of El Paso (I avoided major airports), I was well on my way to Laredo, and how could I get lost in any event; all I had to do is follow the general track of the winding Rio Grande river, including its great bend, which, if you know your geography, serves as the border between the great state of Texas (it is very large, but, to the chagrin of Texans, less than one half the size of our 49th state, Alaska) and Mexico, and winds on down to Laredo. The weather was “CAVU,” clear all around, visibility unlimited, and I had experienced enough Arizona summer flying in this “puddle jumper” to know what to expect in the way of “warm air turbulence” and “convection currents.” Piece of cake, right? Wrong. Traveling at 7,500 feet, I was bouncing like a cork in a rough sea, and had to climb to 9,500, odd number going east, plus 500, is the international flight rule, and that was no easy task in the Piper. So, I climbed to 11,500, the noonday July sun cooking through the Plexiglas windshield of the low-wing Piper even at that altitude. But with clear skies, no “Cbs,” cumulonimbus clouds, which can shoot up to 75,000 feet and cause major thunderstorms, complete with downdrafts which can flip a plane on its back in less than a second, or, more quickly, rip off the wings, I was enjoying the challenge. Until I could not spot the Rio Grande.
Lots of dry canyons way below, but the river had to have some water, which the sun would catch and cause to glisten, even this time of year, didn’t it? Had I missed it? Was I now over Mexico? How could that be possible, with my experience with map and compass? Where the heck was I? Somewhere between El Paso and Monterey, Mexico, I reckoned, but the river would take me right to Laredo, if I could find the river, and I could not, even doing a 360, turning a full circle, and gawking as best I could. Time to call for help, the first step, which I did, to no avail, calling first ‘PAN, PAN, PAN” (almost emergency) to the air base at El Rio, and finally “MAY DAY, MAY DAY, MAY DAY,” receiving in response only static, for indeed it was an emergency, not because I was lost (no, Rangers are never lost, only disoriented; and when it rains the uniform for Rangers is wet fatigues), but because I might get shot down, as a suspected drug courier, or unknown aircraft venturing into U.S. military airspace, or unknown aircraft without authorization in Mexican airspace. With no radio contact, I continued, bouncing around at 11,500 feet, heading generally southwest, still looking for water, considering a due course east toward San Antonio so as to get out of Mexican airspace, which is where I must be, and hope to find the river, and Texas, and considering turning around, but then I saw small signs of civilization in this God-forsaken part of the world, some jeep trails, heading generally north and south, which meant people perhaps not too far to the south, so I headed due south, following the jeep trails, and lo and behold, some ranches appeared, with houses, and horses, and barns, and I chose the one with the biggest unfenced pasture, and headed down, to get on the ground and find out where I was.
Imagine the surprise of the rancher, as I taxied up almost to his front door, chickens scattering. I shut down the engine, casually got out as he approached, and I said, “Buenos díaz, Señor,” and asked if he spoke English, which, at no surprise, he did not, and I did not speak much Spanish but, after showing him the aeronautical chart, a.k.a. map, and gesturing puzzlement as to where I was, to no avail, chose the old Ranger trick of intersection, and named a few towns from the map and asked, “Dónde está?” and he pointed in the general direction of a few, whereupon, by taking back azimuths and the common intersection on the map of the several azimuths, I figured out where I was, which was deep into Mexico. “Muchas gracias, Señor. Adiós.” I got back in the plane, started it, to the chagrin of the chickens and other farm animals, including cows and horses, in, fortunately, adjacent pastures, not the one in which I had touched down.
I had quickly figured the general azimuth to Eagle Pass, the nearest town in the good ole U.S. of A., and when I got closer I saw it – not the airport, but the Rio Grande, and it was grand, in more ways than one, and I stayed well clear of the airport until I jumped the border, then called in my position, and landed to refuel, not taking a chance on my last leg to Laredo, no knowing the exact fuel consumption, and not trusting the gauges. When I paid the young gal for the fuel, I mistakenly answered “from the southwest” when she asked from which direction I flew, which is the reason, given that Eagle Pass is not a customs port of entry, why she gave me a strange look, which I attributed later also to the fact that I had just spent several hours flying a small plane through what is known as “drug alley.” Nightfall was by now approaching, and I was taking no further chances, and flew a pleasant route 500 to a 1,000 feet just above the river, the air cooler and calmer now, vowing to not take the river out of my site, which I did not until I spotted the Laredo airport, where I landed, spent the night, and appeared in court for the hearing on pretrial motions in the case of U.S. v. Karen Verlander, a.k.a. Texas Housewife, Chapter 13 of Tax Fraud and Evasion: The War Stories. CLICK HERE FOR BOOK INFORMATION. As I flew, downright casually, over the river, enjoying the flight and early evening air, and the sense of victory over the elements, and gravity, the “freedom of flight,” I reflected on how an experienced Ranger, who navigated for months in the Central Highlands of Vietnam by compass and map, where the maps in many remote areas where not all that accurate, had missed the Rio Grande, a major river contained within a desert landscape. I logically concluded, giving great deference to my navigational abilities, that my brain itself, not my well-honed skills, “went bad,” which is, of course, what did happen, known as hypoxia, lack of oxygen to the brain at the thin air of 11,500 feet – made thinner by the heat – heat expands the air molecules, meaning fewer molecules for my lungs – with the result often unconsciousness, and even death, but short of those results, impaired judgment. Phoenix is at 1,000 feet. Perhaps due to my many years of swimming and its aerobic effects, I had exhibited no symptoms of hypoxia – blue finger tips, for lack of oxygen. Or, unconsciousness.
CASE OF THE MISSING TRUFFLES
What litigator, civil or criminal, does not want to have his case heard before the U.S. Supreme Court? And argue it himself. Thus it was with great hope and expectation that the highest court would grant my motion to consolidate my case, U.S. v. Dunkel, with a case the Court had already agreed to hear, U.S. v. Cheek, thus in effect granting certiorari, which grant is given to about one percent of petitioners. Cheek’s attorney, and, as expected, the government, opposed my motion, but the result was the same: a grant of “cert” for my client, Dunkel.
Cheek, an airline pilot convicted of failure to file tax returns and tax evasion, believed he was not a person required to file a tax return and pay taxes because he earned wages, and “wages are not income,” and for other reasons, regarded by the government and federal judges with considerable disdain, had, like Dunkel, been convicted in federal court in Illinois and sentenced to prison, with the sentence stayed pending appeal. Cheek was denied the opportunity to have the jury subjectively consider why in the heck a pilot, making over a hundred grand a year, did not have to file a tax return and pay taxes like the other 150 million of us who do so. Okay, maybe fewer than 150 million, because, probably, 25 million are like Cheek and Dunkel and did not file, though for reasons not shared with Cheek and Dunkel nor with the IRS. The “underground economy.”
At this time the U.S. Court of Appeals for the 7th Circuit, which includes Illinois, was out of step with the other circuits, including my (Arizona) circuit, the 9th, which permitted a defendant like Cheek to explain to the jury all the reasons, however frivolous, the court might – “as a matter of law” – find them for non-filing and non-payment and argue for acquittal based on lack of lack of willfulness or specific criminal intent – the defendant believed in good faith he was not required by law to file a return, which belief, however erroneous as a matter of law (according to the black-robed oath takers who very well may be engaged in judicial tyranny) was based upon his good faith reliance on what he read and what he heard, including what he heard at, for example, a tax protest seminar held at the Holiday Inn on a Saturday morning.
So, in the Dunkel case, when he was on the stand, and I asked him, “Why did you not file your tax returns, Dr. Dunkel?” he began to answer, “Because I believed it was voluntary;” but was cut off by the prosecutor’s “Objection, your Honor,” which objection was, of course, sustained as a result of the law then standing in the 7th Circuit, the law which, as Bastiat (The Law) would surely answer had been perverted, because, as Bastiat, during the French Revolution so aptly noted, the “law” was whatever those in power said it was, however perverted. “The law perverted!” Bastiat exclaimed, an exclamation soon after vindicated by the sound of the falling, heavy blade of the guillotine upon the heads of those who dared cause the perversion. And, before the Supreme Court decided Cheek, those “perverters” of the law were none other than the University of Chicago Law School graduates and elitist members of the 7th Circuit, for they had, as our highest Court aptly noted, denied Cheek’s 6th Amendment right to have the jury decide the fact question – whether the jury believed that Cheek truly believed that which he claimed he believed in good faith, and thus did not act willfully, and therefore must be acquitted on the dastardly crime charged.
The jurors are, as the Supreme Court noted, the final arbiters of a silly argument. The jurors are to reach their determination of Cheek’s good faith not by an objective standard, but by a subjective one, which in sum means that it does not matter what the jurors find reasonable (wages not income? Income tax voluntary?); all that matters is whether the jurors believe that Cheek really believed what he claims he believed when he reached the conclusion he was not required by law to file a tax return and pay taxes, a rule of law which no doubt offended the legal and other senses of the 7th Circuit judges as some form of jury nullification, or “common man” anarchy, lest why otherwise their adamant stand, out of step with other federal circuit courts, prior to being corrected by their higher brethren who sit in our nation’s capital?
Cheek’s conviction was reversed and remanded for new trial, for a jury, not judge, determination of good-faith belief; and Dunkel was likewise remanded back to Chicago for the circuit court to reconsider the matter in light of the highest court’s decision. Now the dilemna. Would the court, like a military officer, accept full responsibility? Military officers can “delegate authority but not responsibility.” Or, would the court seek a way around the simple syllogism, A + B = C logic? (A) Dunkel was entitled to have the jury determine his claim of good faith belief; (B) he had been denied that right; ergo, (C) he was entitled to a new trial; which was the result obtained, but not before the 7th Circuit placed the blame on me, and the Solicitor General, the government, for I, they declared, had not put the issue before them in largesse fashion so as to suit them; thus, it was all my fault for them having missed the issue; though they neglected to mention the issue was, in my legal briefs, both opening and reply, filed with the court, succinctly presented as a separate headlined issue and headlined argument, HEADLINED IN ALL CAPS IN BOTH THE OPENING AND REPLY BRIEFS for the court and all the world to see, not to mention that the issue had time and again passed before the court only to face ridicule and demise; which is exactly the reason I expended so few words in forming the issue and making the argument (why expend the page count when I know that for these Article III judges, the 6th Amendment right to have the jury decide the determinative facts in the case is “a dead letter”?); nonetheless, it was all MacPherson’s fault, for 7th Circuit judges “are not like pigs, hunting for truffles buried in briefs.” (My youngest son, Nathan, would learn of this 7th Circuit story line in his first year of law school, legal research and writing, from a text book in which the case description and quote appeared. “Don’t write a brief like this one,” the professor told the class.)(And how many petitions for certiorari had that professor won?)
Not content with blaming me for their own willful blindness to an argument they time and again had rejected, the 7th Circuit judges also blamed the Solicitor General for his failure to oppose our petition for “cert” by a claim of waiver – that I, BY MY ISSUE AND ARGUMENT HEADINGS IN ALL CAPS, had waived the issue. Waived the issue because my argument was contained in a single paragraph. Any wonder why the learned solicitor did not claim waiver? The 7th Circuit judges in Dunkel, Posner, Easterbrook, and Dumbauld, with their “per curiam” opinion (Easterbrook authored the first Dunkel opinion) remind me of that which “Uncle Billie,” a.k.a. attorney extraordinaire and best of friends, William A. Cohan, would often recite from The Three Stooges. One of the Stooges exclaimed, “I can’t see, I can’t see!” “What’s the matter?” “My eyes are closed.” Hogs in search of truffles? The “tax protestors” would, no doubt, say the judges “are narcissistic jackals in search of self-reward; and engaged in judicial anarchy, all in violation of their sacred constitutional oath.” But what do the tax protestors know? I cotton to “hogs in search of truffles.” And as both foreign and domestic tax shelter doctrine teaches, “Pigs get fat, but hogs get slaughtered.” See United States v. Dunkel, 900 F.2d 105 (7th Cir. 1990) (conviction affirmed); Dunkel v. United States, 111 S. Ct. 747 (1991) (petition for certiorari granted, judgment vacated, and case remanded to 7th Circuit for further consideration in light of Cheek v. United States, 111 S. Ct. 604 (1991)); United States v. Dunkel, 927 F. 2d 955 (7th Cir. 1991) (conviction reversed in light of Cheek).