November 6, 2017
The Wesley Snipes tax trial is the unfair prosecution of innocent Americans who are coerced into following a tax code that is confusing as hell, says Robert Barnes, who served as Wesley Snipes’ tax attorney during Snipes’ 2011 victory over the IRS. “In the Wesley Snipes tax evasion case, and in the other tax evasion cases where I’ve won against the IRS, that is the core argument.”
Robert Barnes is the attorney “who saved Wesley Snipes from growing old in prison” with a “remarkable acquittal record” in felony cases. Barnes’ “stunning” defense of Snipes was a deafening “defeat for the Justice Department.” Condé Nast Portfolio, “Taxman Beware,” October 15, 2008
When Wesley Snipes’ tax trial ended in acquittal, he thanked tax attorney Robert Barnes for his stunning defense.
In fact, the Wesley Snipes tax case and other tax cases won by Barnes have established important legal precedents. First, says Barnes, the Wesley Snipes’ tax evasion case established that ignorance of the law IS an excuse. As I argued in my closing statement in the Wesley Snipes tax trial, not understanding the tax code or even having crazy ideas about its legitimacy is not the same as tax evasion. You have to affirmatively do something to avoid paying taxes altogether or not pay the correct amount you owe to be guilty of tax evasion. Even wanting to avoid paying taxes is not a crime, since Congress creates all kinds of laws such as home mortgage deductions that let people avoid paying taxes.”
Every year, thousands of innocent people are investigated by the IRS. If indicted by a grand jury, the average likelihood of being convicted is more than 90 percent. The best defense in tax trials is to pick the right jury and persuade them. In Wesley Snipes’ tax situation, Attorney Robert Barnes, presented ZERO evidence and ZERO witnesses, relying instead on a brilliant closing argument that ensured Wesley Snipes was acquitted of all felony charges. The text is below…
As someone who grew up in the small-town south, I appreciate this courthouse. As we each walked in every day downstairs, right at the entryway, and each day when we exit, we each see on the top right-hand corner by the security station something called Charters of Freedom.
Why are they so important that we can’t miss it, each day, every day, we walk in or walk out of this courthouse, performing our oaths to each other and our fellow citizen?
Because they include documents like the Declaration of Independence and the United States Constitution, sacred charters that bind us together and make us American. It started with ordinary people, simple truths and the sound of the Liberty Bell heard around the world from Philadephia, Pennsylvania — but it didn’t stop there.
Those documents are documents about cherished rights, including the right to trial by a jury of 12 people to decide your criminal intent and whether you acted criminally; whether what you did you thought was criminal when you did it; whether when you did it, you thought it was illegal to do it; whether when you did it, you were acting to deceive someone and defraud someone? Remember disagreement is not deception; frivolous is not fraud.
“Remember disagreement is not deception; frivolous is not fraud.”
It was ordinary people like you, forming these crafted words, together in a little, small red brick building in Philadelphia, Pennsylvania, back at the end of the 18th century, people talking about ideas that some folks at the time considered sort of kooky, a little bit crazy—about taxes, about law, about rights—rights today we teach all of our children in America in our civics lessons in our educational classrooms across the country. So remember that. And when you read the judge’s instructions about judging a man’s intent, you may not like or agree with some of them, but I respect the fact that you took an oath to follow them, in honor of those promises made two centuries ago in a courthouse no bigger than this one.
“Mere failure to file a tax return is not a crime.”
And if you wonder why would these instructions say these things, like why is it that mere failure to file a tax return is not a crime?
Why is there this requirement to have an intent to deceive someone, an intent to defraud someone, an intent to lie someone, an intent to trick someone — it’s because of those ancient rights and liberties that protected ideas that were considered unfavorable or unpopular in the past.
Now I heard the prosecutor talk about “defense lawyer tactics.” There is also occasionally something called government lawyer tactics. One of those is to only read some of the jury instructions that you will receive from the judge and not all of the jury instructions that you will receive from the judge. The most important one you will receive from the judge will be what is a conspiracy to defraud? It is a conspiracy to defraud by deceitful means; by deceit, trickery or craft.
Then you will see the instructions talk about what is a fraudulent claim? What is that about? It’s about fraudulent intent, intent to deceive, a specific bad purpose to disobey the law.
Then you will see instructions on what is called willfulness and on good faith. And, again, you will see instructions about specific bad purpose to break the law, specific bad purpose to disobey or disregard the law, and whether or not Mr. Snipes acted with specific intent to deceive the IRS.
That’s what is at issue here: did Wesley Snipes act with a specific intent to deceive the IRS?
“Did Wesley Snipes act with an intent to deceive? That’s the issue.”
Now, the government prosecutor mentioned that the word “secret” is not in with the word “conspiracy” in the judge’s instructions. That is true. There are some other words that are also not in the judge’s instructions. “Frivolous” is not listed as a crime. Frivolous is not fraud. Being a protester is not a crime. This is, after all, still the United States of America.
Not only that, you will see that disagreement with the IRS is not a crime. You will see that disagreement with the IRS is not deception of the IRS, is not fraud of the IRS. You will see that all of the jury instructions are clear. That this case is about Wesley Snipes’ intent: Did he act with a specific bad purpose to disobey and disregard the law? Did he act with an intent to deceive?
That’s the issue.
The issue is not whether or not Wesley Snipes disagreed with the IRS or disliked the IRS or sent documents they consider frivolous or silly. There is no conspiracy of frivolity or silliness that’s being alleged here. What’s being alleged is a conspiracy to defraud, fraudulent intent, bad purpose.
Well, what did Wesley Snipes actually do, and what does that tell us about his intent? The prosecutor and the government seemed to question how the IRS’ reaction or the IRS’ failure to do almost any of their basic tasks in this case in the civil part of the process, how does that relate to Wesley Snipes’s intent? Here’s how. It is because Wesley Snipes thought he was engaging the IRS, and going through the process and procedures to get answers and resolution from the IRS, to see whether his tax position or the tax position that he was advised or given by attorneys or CPAs or other individuals was correct. The fact the IRS didn’t follow their own procedures is significant and relates to his lack of criminal intent.
“The fact the IRS didn’t follow their own procedures is significant and relates to his lack of criminal intent.”
Just ask some basic questions — and I agree with the government prosecutor as to one thing: use your common sense. Tax fraud and people out to deceive the IRS do not write lots and lots and lots and lots of long letters to the IRS, telling them they are not paying taxes, telling them they are not filing returns, and telling them why. Tax frauds and people out to deceive the IRS in a conspiracy to deceive the IRS or to defraud the IRS do not ask for conferences, appeals and hearings in a public court. Tax frauds, people out to deceive the IRS, people out to trick the IRS, people out to take something from the IRS they think belongs to the IRS, not themselves, do not ask to be audited. Probably the most unusual thing that Wesley Snipes did during this entire process and proceedings was asking to be audited by the IRS. There are various things he did you may consider bizarre or crazy or politically wrong. That’s not what Wesley Snipes is on trial for. He was asking to be audited. That may be crazy, but it ain’t criminal.
“He was asking to be audited. That may be crazy, but it ain’t criminal.”
Now, throughout the process – the prosecutor didn’t distinguish between the civil stage and the criminal stage. Remember during the first part of this process Wesley Snipes is in the civil stage, where he has civil rights and civil remedies, rights the IRS ignored and remedies they never afforded him. Wesley Snipes openly, publicly and honestly engages the IRS again and again and again. He asks them: what law makes me liable for the tax? What form am I legally obligated to file? Do you owe me money or do I owe you money? Routinely and repeatedly. Pleadingly and publicly. He even asks to be audited. Crazy? Maybe. Criminal? No.
How does the IRS answer him? With simple identification of basic laws? Nope. With an audit? Nope. With an appeal or a hearing? Nope. They come and knock on his door just about two years in this process, and say: You are under criminal investigation. All of your civil rights are now gone. All of your civil remedies are now gone. Now all you have left is you have rights in the criminal process.
What are those rights? The right not to produce any documents; right to stay silent; right not to give financial information to the IRS. What Wesley Snipes does on both sides and stages of this process is try to protect his rights the best he can.
…Now what is Wesley Snipes not doing? Others fled. Wesley Snipes didn’t. Wesley Snipes stayed right here in the United States of America throughout the investigation process. Wesley Snipes doesn’t flee. Wesley Snipes doesn’t try to deceive. Instead, Wesley Snipes tries to engage.
The one letter the government likes to talk about is that letter from December 2006 in which you see some anger and some frustration and some irritation and a bunch of ideas about the law. Some of the ideas are credible; some of them are not. Again, when is the letter sent? That is after this case is already over, after the indictment has already been brought. Did he say some things he may regret? Of course he did, as any American would. If saying something out of frustration or anger was a crime, we would all spend some time at the local jail or a federal prison. It’s not. But why did he feel that frustration or anger? Because the IRS refused to grant him his rights, refused to recognize him his remedies. That’s frustration. That’s not a crime.
If saying something out of frustration or anger was a crime, we would all spend some time at the local jail or a federal prison. It’s not.
What is a crime is a conspiracy to defraud, a conspiracy to deceive; filing a claim you believe will deceive the IRS that’s false and fraudulent; acting willfully with a specific bad purpose and criminal intent to deceive the IRS. What Wesley Snipes did was not a crime.
Listen closely to the judge as he explains the instructions on the law. The indictment or formal charge against any defendant is not evidence of guilt. Indeed, every defendant is presumed by law to be innocent. The law does not require a defendant to prove innocence or to produce any evidence at all. And if a defendant elects not to testify, you cannot consider that in any way in your deliberations. The government has the burden of proving Wesley Snipes guilty beyond a reasonable doubt; and if it fails to do so, you must acquit.
Today is election day in the state of Florida, but the place where our vote really matters most is when we sit as individual jurors. So when you deliberate and you make a decision and you find the government has not met that burden, then assert your rights and protect your rights, and do so accordingly.
Proof beyond a reasonable doubt is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.
Now, what is this “beyond a reasonable doubt” standard you heard the court discuss? Proof beyond a reasonable doubt is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs. You must be convinced that the government has proven the defendant is guilty without hesitation, or you must acquit. That is the law the judge will instruct you on.
A classic Alfred Hitchcock story is a good example of intent versus actions.
What’s a good example of what does that mean, before we can point the finger of guilt and call a man a criminal for his intent and his actions? There is a classic Alfred Hitchcock story in which a man comes home, and his wife tells him she’s been raped. The husband is enraged. The husband demands she help him find the accuser. He demands revenge. So he hops in the car and runs out to try to track him down. And as they drive, his wife, still upset and in shock, still traumatized, says: Oh, yeah, that’s him right there. That’s the guy who did it. She points right at him. So he jumps out, enraged, tracks him down, and he beats the man whom she pointed to, and beats him to death. He gets back into the car, shaken but satisfied.
They drive further along. Then, all of a sudden, she says, oh, there he is, that’s the guy. He momentarily stalls, but doesn’t hesitate long. Are you sure, he asks? Yes, that’s him, oh my, that’s him. She’s still shaken; she’s still in shock. He doesn’t see it; he’s still in rage. He jumps out of the car, chases the man down an alley, and beats him to his death. He is going to protect his wife, he’s going to punish a guilty man. But then he gets back in and drives a little further.
And, as they go, she starts pointing out every man they see – “it’s that’s guy”; “oh, no, it’s that guy,” “it’s definitely him” with the finger of blame pointing outward to face after face, blurring in her shock and trauma. Then he knows. He just killed two innocent men.
Beyond a reasonable doubt is knowing without hesitation before you can point the finger at a man and call him a criminal. That’s what reasonable doubt is.