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Tragedy In Texas


A grave injustice was consummated in Texas last week, when Dick Simkanin was convicted on multiple criminal charges relating to the “income” tax.  The injustice was not the conviction itself, however, nor the execrable behavior of the judge.  The injustice was simply in the initial leveling of accusations against this man of crimes which he is incapable of having committed.  The conviction, and much of the seemingly lawless behavior from the bench, resulted from a simple failure of Simkanin to mount a meaningful defense, despite what appears to have been the routine provision of the opportunities to do so afforded by the American adversarial system of justice.

          Although the specifics of the defense Simkanin DID try to present is unclear, it is apparent-- based upon the judge’s instructions to the jury and other available documents related to the contest-- that he DID NOT attempt to defend himself against the underlying elements of the charges against him.  Instead, Simkanin allowed the prosecution’s assertions of those underlying elements to stand unchallenged (or even explicitly endorsed them, as we shall see).  Thus, he invited the repeated rejections, by the judge, of his attempts to introduce other issues into the proceedings, and made the ultimate outcome well-nigh inevitable.


To begin with, Simkanin failed to challenge the repeated assertions (which is to say, charges) within the indictments that he was an “employer”, paid “wages”, had “employees”, and received “income”.  Entities of whom these things are true are the entities 'required' to perform the legal duties which Simkanin was charged with evading.  Although the manner in which these assertions-- and the ‘words of art’ of which they were constructed-- were made to seem innocuous in the indictments will strike some as improper (particularly those previously unaware of their nature), that’s how our system works.  It is the defendant’s responsibility to know the law and challenge elements such as these wherever they appear.

Unfortunately, as is made clear by his failure to respond accordingly, as well as from his writings on the subject and the nature of his motions throughout his trials, Dick had been distracted and misled by several misunderstandings of the law, and did not recognize where the battle was really being fought.  In particular, Dick was led astray by the '861' argument.  Like most such errors, the tenets of that argument are incompatible with the truth about the tax scheme, and accepting them precludes understanding that truth.  Thus, like a deer in the headlights, he conceded the only ground that really mattered early in the proceedings, the specifics of which are reflected directly in the jury instructions issued by the judge.

Look at the instructions regarding the charges of ‘willful failure to collect, account for, and pay over taxes’ from his workers: 

For you to find the defendant guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt as to the tax quarter mentioned in the count of the indictment under consideration: 

First: That Arrow Plastics [Simkanin’s company] was an employer that paid wages to its employees;

  This instruction summarizes the foundation of the government’s case against Simkanin in both this and the ‘fraudulent claims’ portion of the indictment (and is related to the ‘willful failure to file’ charges as well).  If Simkanin’s company is indeed an “employer” (as defined in Subtitle C of Title 26), and did indeed pay “wages” (as similarly defined) to “employees” (...), then an officer of the company WAS INDEED REQUIRED to collect, account for and pay over the taxes demanded.  With these assertions as to the legal nature of the company conceded by default, Judge McBryde-- though nonetheless a traitor to his oath and a disgrace to his office, as an obvious partisan in this whole affair-- was fundamentally correct to treat the issue of Simkanin’s ‘legal duty’ as he did: a given.

Further, these assertions being unchallenged and therefore ‘accurate’ (within the context of a trial), claims for refund of previously withheld funds ARE fraudulent, and it was likewise technically sound for McBryde to treat them so.  That none of these assertions are true (as I understand the details of Mr. Simkanin’s affairs), and that if they had  been contested the jury could not possibly have considered these primary elements-- upon which all the other elements of these charges stood-- proven at all (in light of the clear language of the statutes involved), elevates this injustice to tragedy.  (Actually, these elements of the charges should have been contested in the initial response to the indictment, and never have gone to the jury at all.  For more on this, click here.)


          The remaining charges involve ‘willful failure to file’ personal tax returns.  Here the tragedy is yet more profound, for the victim actively participated in his own defeat.  Again, we can look to the court’s instructions to the jury to learn that the charges were properly confined to the limitations of the law: 

For you to find the defendant guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt as to the count of the indictment under consideration: 

First: That the defendant received gross income in the amount stated in the indictment during the year in question;


          As was the case in the ‘failure to collect’ and ‘filing false claims’ charges discussed above, this first instruction contains the primary assertion fundamental to the prosecution’s case, which, if proven or left unchallenged, supports the contention that Simkanin’s requirement to file can be taken for granted.  If he did indeed have more than the exemption amount of “income” for any given year-- not earnings, mind you, or money, but “income”-- he was indeed under a requirement to file.  Not only did the government’s assertions in this regard, contained in the indictment and subsequent motions, go unchallenged; but Simkanin actually stipulated formally that they were true.  (Of course, because the allegation that his business belonged to the limited category of entities which meet the legal definition of “employers” who pay “wages” also went uncontested-- the implications of which would extend to the nature of his own salary-- it would have been difficult for him to argue otherwise.  Such “wages” DO constitute “income”.)


          I pray that in the appeal which he has vowed to make, Dick can find a way to make the necessary challenges so tragically neglected thus far.  I fear that this will not be easy, with so much ground having been lost and the appellate process being so unsympathetic to the revisiting of factual issues already accounted for, rightly or wrongly, at trial.  Still, there is hope, and we can wish for the best.  However misled, Dick seems to be a good man who was simply trying to uphold the law and do the right thing by those who work for him.


© Peter E. Hendrickson


P. S. 

I do not offer this commentary in the interest of being mean-spirited, or recriminatory.  I think that the defense team worked hard, with sincerity, dedication, and the best of intentions.  However, a failure to understand what really happened in this trial will lead to several truly harmful consequences based upon the idea that the court acted in arrant disregard of the law.


One is the widespread conclusion that going to the trouble to know the law is pointless.  Others include the discouraging of new converts to the defense of the rule of law; and the diversion of those already committed to that worthy purpose into obscure, convoluted theorizing in an effort to reconcile reality with misconceptions.  Worse, the risk that the same mistakes will result in another tragedy like this one.


On that note, I certainly do not intend to suggest that to have made the challenges discussed would automatically have resulted in a victory for Dick Simkanin, particularly at the trial level.  But, if the government and its pet judge had been obliged to concoct or misconstrue evidence, testimony, or statutory language to the effect that Simkanin met the legal definition of "employer", paid statutory "wages", and that his workers were statutory "employees", any ruling or result based thereon would have been in plain, demonstrable contradiction of the written law; been far more difficult to sustain in a higher court than otherwise; and would provide an easily communicated and straightforward focal point for reaction by activists and non-activists alike.  While opinions about policy, including taxation, often vary widely and are resistant to change, most people agree on the importance of the law being enforced as written.



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