Really? Invisible Contracts?
(updated Sept. 24, 2009)

Back in the mid-80s, an author named “George Mercier” wrote a long treatise he described as a letter that explained his arguments about the federal income tax. This “book” obtained a wide circulation back then, but within a few years, it died down after the “Mercier legal theory” was championed by the Pilot Connection Society, an organization created and operated by Phil Marsh, and went down in flames. But, this work is again being popularized by “newbies” in the freedom movement and I have concluded that I need to provide my view of this argument, which in essence is that this “legal argument” has no substance. Let me explain some of the gross flaws of this argument.

For centuries, philosophers have written about various forms of governments, and some of these like Thomas Hobbes and John Locke wrote about the “Social Contract Theory”; Locke had an impact on the founders of our country. A short explanation of this theory may be found on the Net here. From reading Mercier’s Invisible Contracts, it appears to me that he attempted to connect the Social Contract Theory to modern American law. However, American law is not exclusively contract based, yet this is the precise contention asserted by Mercier.   
 
I know little about Mercier, and I have never met anyone who knew him. For all that is known about him, “George Mercier” may be somebody’s nom de guerre. But from reading his work, I have concluded that he probably lived in New York. From the fact that he quoted very extensively from the works of Mormon Church leaders, I have concluded that he was a Mormon. But then again, he was a self confessed pot-grower:

    "For example, among other things, I am a Marijuana Grower [I am quite interested in Horticulture]."

I have never met a pot-growing Mormon.

Mercier’s legal theory is that, here in America, the relationship between citizens and government (Mercier’s “King”) is entirely commercial and based on implied or invisible contracts. I could be wrong, but I have concluded that Mercier first wrote some treatise of his legal argument that was purely theoretical. Once this was done, he simply added a substantial amount of other apparently relevant (to him at least) legal and other materials. It is only this other material that provides any shred of legal support for his argument.

I do not want to be perceived as condemning everything he writes about and there is much in Invisible Contracts with which I am in agreement. His work is easy to read, is entertaining and interesting; he chocks his work with lots of stories about the Rockefellers and other elites in our society and across the world. He condemns the tyranny of present-day American government, and such writing is popular, both with me and other Americans.  But, all of that is irrelevant regarding his fundamental legal argument.

Let me address his contention that “everything is commercial” in reference to the “King”, government. It is a well established legal principle that any American government engaged in commercial endeavors is subject to the same rules of commerce as are private individuals.  For example, in Lynch v. United States, 292 U.S. 571, 579, 54 S.Ct. 840 (1934), the Supreme Court stated: “When the United States enters into contract relations, its rights and duties therein are governed generally by the law applicable to contracts between private individuals.” See also Franconia Associates v. United States, 536 U.S. 129, 141, 122 S.Ct. 1993 (2002); and United States v. Seaboard Air Line Ry. Co., 22 F.2d 113, 115 (4th Cir. 1927)(“And the rule is well settled that, when the 'government * * * comes down from its position of sovereignty, and enters the domain of commerce, it submits itself to the same laws that govern individuals there.'"), among many others. Presuming that our relationship with Uncle Sam is commercial, what are these contract rules that apply to this commercial government, Mercier’s King?

The "statute of frauds" originates from the common law and every state today has a general "statute of frauds," if not several. Generally, statutes of frauds require that certain contracts are only valid if evidenced by a written contract. Typically, contracts for the sale of land, contracts for the sale of goods over 500 bux, all other contracts in excess of 5000 bux, agreements to answer for the debts of others, contracts that have a life in excess of one year, etc., must be memorialized by a written contract. Two such Alabama laws appear below:

§ 7-2-201. Formal requirements; statute of frauds.
(1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon, but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.

§ 8-9-2. Certain agreements void unless in writing.
In the following cases, every agreement is void unless such agreement or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party to be charged therewith or some other person by him thereunto lawfully authorized in writing:
(1) Every agreement which, by its terms, is not to be performed within one year from the making thereof;
(2) Every special promise by an executor or administrator to answer damages out of his own estate;
(3) Every special promise to answer for the debt, default or miscarriage of another;
(4) Every agreement, promise or undertaking made upon consideration of marriage, except mutual promises to marry;
(5) Every contract for the sale of lands, tenements or hereditaments, or of any interest therein, except leases for a term not longer than one year, unless the purchase money, or a portion thereof is paid and the purchaser is put in possession of the land by the seller;
(6) Every agreement, contract or promise to make a will or to devise or bequeath any real or personal property or right, title or interest therein;
(7) Every agreement or commitment to lend money, delay or forebear repayment thereof or to modify the provisions of such an agreement or commitment except for consumer loans with a principal amount financed less than $25,000;
(8) Notwithstanding Section 7-8-113, every agreement for the sale or purchase of securities other than through the facilities of a national stock exchange or of the over-the-counter securities market.

With the statute of frauds in mind, look at your birth certificate, driver’s license and SSN card. What promises to pay appear on any of these documents? Did you sign any of these documents promising to pay anything? Can King government sue you for breach of contract based on your birth certificate, driver's license or SSN? In truth and as a matter of law, these documents are not contracts, nor do they evidence contracts. Finally, there are no "invisible contracts" regarding these matters. Furthermore, having an association with some regulated entity like a bank does not supply some nexus to King government, absent some express law. 

Mercier also asserts that social security is an invisible contract. For many years, I have posted the following in another file on my webesite:

SOCIAL SECURITY IS NOT A CONTRACT

    Art. 1, § 9, cl. 7 of the U.S. Constitution provides that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." While this constitutional provision does not of itself place a maximum ceiling on the amount of debt which can be created by Congress, it does require that appropriating legislation be enacted in order to incur debts. This is aptly demonstrated by the federal cases which have construed this part of the Constitution. In Cummings v. Hardee, 102 F.2d 622 (D.C.Cir. 1939), and Maryland Casualty Co. v. United States, 155 F.2d 823 (4th Cir. 1946), it was held that officers of the United States lacked all power to pay any claim against the United States in the absence of an appropriation from Congress to pay such claim. This principle was more fully explained in Hughes Aircraft Co. v. United States, 534 F.2d 889, 906 (Ct.Cl. 1976), where that Court declared:
"The second principle is that before any expenditure of public funds can be made, there must be an act of Congress appropriating the funds and defining the purpose for such appropriation. Thus, no officer of the Federal Government is authorized to pay a debt due from the U.S., whether or not reduced to a judgment, unless an appropriation has been made for that purpose."
See also Reeside v. Walker, 52 U.S. (11 How.) 272 (1850); Cincinnati Soap Co. v. United States, 301 U.S. 308, 57 S.Ct. 764 (1937); and Office of Personnel Management v. Richmond, 496 U.S. 414, 110 S.Ct. 2465, 2471 (1990). In National Association of Regional Councils v. Costle, 564 F.2d 583, 586 (D.C.Cir. 1977), that Court elucidated this principle by stating:
"Government agencies may only enter into obligations to pay money if they have been granted such authority by Congress. Amounts so authorized by Congress are termed collectively 'budget authority' and can be subdivided into three conceptually distinct categories -- appropriations, contract authority, and borrowing authority. Appropriations permit an agency to incur obligations and to make payments on obligations. Contract authority is legislative authorization for an agency to create obligations in advance of an appropriation. It requires a subsequent appropriation or some other source of funds before the obligation incurred may actually be liquidated by the outlay of monies. Borrowing authority permits an agency to spend debt receipts."
Thus, it is quite apparent that in order for the federal government to incur debt, it must adopt legislation authorizing a specific amount of federal obligations to be incurred.

    It is easy to demonstrate the operation of this provision of the Constitution and its application to government contracts. Suppose the feds desired to build a new courthouse at a cost of $200 million. An agency in charge of such a project could theoretically "contract" with a construction company to build this structure. However, until Congress actually appropriates money to pay for construction, there is no contract. Even if the contractor in this example incurred lots of costs preparing to build this courthouse which ultimately does not get built because of lack of funds, he has no claim against Uncle Sam for breach of contract. The same principle applies to every other government contractor, whether aerospace, military, et cet. Government contracts are unique and different from private sector contracts due to this constitutional limitation upon the power to contract.

    Is Social Security a contract? A private insurance policy is clearly a contract because the policyholder makes a promise to pay money to the insurance company, which in turn agrees to likewise pay the policyholder if certain contingencies arise. These "promise to pay" elements are essential for a contract, but they simply are not present with Social Security. First, Social Security "payments" are not premium payments, but are taxes instead. Secondly, there is no corresponding and enforceable "promise to pay" from the Social Security Administration to its "beneficiaries." As noted above, government contracts are very special and require an appropriation from Congress before money can be expended and a contract made. Regarding Social Security, the only "beneficiaries" who have any claim against the public treasury are those for whom Congress has already made an appropriation, which can last no longer than a year. The rest of the Social Security claimants in America have no enforceable claim on public funds, and all they possess is a "political promise," upon which Congress can renege at any moment. If Congress decided tomorrow to cut off all Social Security benefits, nobody would have any claim for payment. Thus, Social Security has never been and is not now a contract. See Flemming v. Nestor, 363 U.S. 603, 610, 80 S.Ct. 1367 (1960)("It is apparent that the noncontractual interest of an employee covered by the Act cannot be soundly analogized to that of the holder of an annuity, whose right to benefits is bottomed on his contractual premium payments"); Richardson v. Belcher, 404 U.S. 78, 80, 92 S.Ct. 254, 257 (1971) ("The fact that social security benefits are financed in part by taxes on an employee's wages does not in itself limit the power of Congress to fix the levels of benefits under the Act or the conditions upon which they may be paid"); Califano v. Goldfarb, 430 U.S. 199, 210, 97 S.Ct. 1021, 1028 (1977) (Brennan J.) (plurality opinion) ("Congress has wide latitude to create classifications that allocate non-contractual benefits under a social welfare program"); and United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 174, 101 S.Ct. 453, 459 (1980) ("railroad benefits, like social security benefits, are not contractual and may be altered or even eliminated at any time").

    In 1953, a subcommittee of the House Ways and Means Committee conducted hearings for the express purpose of settling the question of whether social security was contractual in nature; see Hearings of November 27, 1953 entitled "The Legal Status of OASI Benefits," (Part 6). The witness at the hearing was Dr. Arthur J. Altmeyer, who held several offices in the Roosevelt administration. He was a member of the first Social Security Board, and by 1946 became the Social Security Commissioner, retiring in 1953. During this hearing, various parties stated that social security was not a contract:

At page 918:

"Mr. Altmeyer: * * * There is no individual contract between the beneficiary and the Government.

"Mr. Dingell: Congress knew that, did it not?

"Mr. Altmeyer: Yes, of course. I am sure it did.

* * *

"Chairman Curtis: The individual * * * has no contract? Is that your position?

"Mr. Altmeyer: That is right.

"Chairman Curtis: And he has no insurance contract?

"Mr. Altmeyer: That is right."

At page 937:

"Chairman Curtis: We came to an agreement on one of our major premises, that this was no insurance contract, and the words did not come from me. They were volunteered by Mr. Altmeyer."

At page 968:

"Mr. Winn: * * * Mr. Altmeyer, there being no contractual obligation between the Government and the worker, it follows, does it not, that the benefit payments under title II of the Social Security Act are merely statutory benefits which Congress may withdraw or alter at any time?"

At page 969:

"Mr. Winn (reading): ‘These are gratuities, not based on contract * * *. Moreover, the act creates no contractual obligation with respect to the payment of benefits. This Court has pointed out the difference between insurance which creates vested rights, and pensions and other gratuities, involving no contractual obligations, in Lynch v. United States, (292 U.S. 571, 576-577)."

At page 994:

"Mr. Altmeyer: I have answered your question, sir. If you will refer to section 1101, you will find, as you read into the record, that there are no vested rights, that Congress may create different rights * * *."

At page 996:

"Mr. Winn: We have also established that there is no insurance contract between the Government and the worker within a covered wage whereby the rights and obligations of a party are set; that is correct, is it not?

"Mr. Altmeyer: No. You did not establish that. That has been self-evident since the law was passed in 1935."

At pages 1013-14 (the Chair's concluding remarks):

"Chairman Curtis: Mr. Altmeyer, it is apparent that the people of the country have no insurance contract. That does not mean that I do not want to do my full part to do justice to them and to carry out and make good on the moral commitment that has been made to them. Yet, notwithstanding the fact that they had no insurance contract, it remains true that the agency under your direction repeatedly in public statements, by pamphlets, radio addresses, and by other means, told the people of the country that they had insurance. I think a number of people were misled by that."

The position asserted by Mercier that social security is a contract, visible or invisible, thus does not manifest itself in the decisions of federal courts. See also McLaughlin v. CIR, 832 F.2d 986, 987 (7th Cir. 1987)("The notion that the federal income tax is contractual or otherwise consensual in nature is not only utterly without foundation but... has been repeatedly rejected by the courts."); and United States v. Drefke, 707 F.2d 978, 981 (8th Cir. 1983). Contentions that driver licenses are contracts are baseless; see Hershey v. Commonwealth Dep't. of Transportation, 669 A.2d 517, 520 (Pa.Cmwlth. 1996); and State v. Gibson, 697 P.2d 1216 (Idaho 1985).

Mercier also had a chapter of his work making some vague contention about admiralty. There are lots of phony admiralty arguments being promoted in the freedom movement, all asserting essentially an argument that admiralty has invaded "inland", and "everything is admiralty". I address that groundless argument here.  Mercier also made snide remarks that the money argument relating to gold, silver and Federal Reserve Notes that is popular with many is baseless, but I demonstrate otherwise here.

There are lots of other flaws in Mercier's legal argument about Invisible Contracts, but I will not address them here. What is important is that Phil Marsh started an organization named the Pilot Connection Society back at the end of the 1980s, and the central legal argument that he promoted was based entirely on Invisible Contracts. Mercier's "book" advocated that a citizen should give King government a wide variety of notices rescinding the "Invisible Contracts", and Marsh's organization did precisely this for hundreds of people. Marsh was prosecuted and convicted and his appeal appears below: 

UNITED STATES v. MARSH, 144 F.3d 1229 (9th Cir. 1998)

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

PHILLIP MARSH,
Defendant-Appellant.

OPINION

NOONAN, Circuit Judge:

Phillip Marsh and his five co-defendants appeal their convictions of conspiring to defraud the United States by impeding the collection of federal income taxes and their convictions of related crimes. They also appeal their sentences, which, as to Phillip Marsh total a term of imprisonment of 17 1/2 years, as to his wife Marlene a term of 14 years, and as to the other defendants lesser but still substantial periods of prison.

FACTS AND PROCEEDINGS

Phillip Marsh was the founder in 1990 of The Pilot Connection Society, often self-identified by its acronym TPCS. Marsh's enterprise offered its customers the elusive and enchanting prospect of untaxing themselves. The verb "untax" entered the language in political conflict in England over a formidable tariff on foreign grain and denoted political action by the government ("Who will untax our bread?" E. Elliott, Corn-Law Rhymes, 1833). "Untax," as used in the present context, means freeing oneself from any legal obligation to pay any income tax, federal or state.

To achieve this exceptional state, TPCS offered an "Untax Package." The package included Phillip Marsh's The Compleat Patriot, the Constitution of the United States, Psalm 91, and a photograph of Phillip and his wife suitable for framing. It also included "Very basic untax documents and their instructions." Among them were a form letter to be sent to the District Director of the Internal Revenue Service stating that the quondam taxpayer had recently found out that the director had been "attempting to extort money" from him and demanding that he justify his jurisdiction by a certified copy of the director's designation of authority from the Secretary of the Treasury. The letter was not to be xeroxed and was to be handwritten because "[i]t takes 3 to 5 times as long to read hand written material as it does to read typed material — anything to slow the IRS down!" Another form letter, to be similarly copied by hand, informed the district director that the taxpayer was not a person under the director's jurisdiction.

The Untax Package included another form by which the taxpayer revoked income tax returns previously signed by him and "cancelled" his signature on such returns. This form was to be retyped by the taxpayer, eliminating the Pilot Connection letterhead, and to be notarized. The theory of the revocation and cancellation, as explained in the Untax Package, was that the IRS would use earlier returns to prove that the taxpayer was aware of his obligation to file and pay. The revocation and cancellation would, so the Untax Package suggested, eliminate this easy evidence of the taxpayer's willfulness in now refusing to file and pay. The reason that the taxpayer could so readily remove himself from the taxpaying rolls was, according to TPCS, that "income tax is voluntary." (SER 32.) If you didn't want to pay it, you didn't have to.

TPCS also advised its members to resort to "alternative banking," that is, to pay everything by cash or postal money order, or to join something called the National Commodity and Barter Association and use "warehouse banking," or to have some trusted associate open an account for one in the associate's name, or to establish, with TPCS's help, an "offshore trust." The reason for adopting one of these alternative styles of money management was that if you opened a checking or savings account you agreed "that the money belongs to the bank from that moment on," with the implication that the bank would surrender the money on levy by the IRS (SER 36.) Members were provided with forms, to be recopied and notarized, of revocation of bank signature cards. (SER 35.)

Another practical precaution the TPCS member was advised to take, in order to assure that his emancipation from taxation was effective, was to file W-4s with his employers claiming as many exemptions as he had thousands of dollars of income. For example, if he earned $30,000, he was to file a W-4 claiming 30 exemptions. The member was assured by TPCS that there was no limit to the number of exemptions he could lawfully claim. (SER 342.) No mention was made of any duty to have a reason for claiming an exemption.

Untax Packages, the contents sometimes different in unessential detail, were sold by TPCS for a price that varied for the occasion. At the start the price was over $6,000. (SER 8.) The price announced in January 1993 was "$2,100 or 10% of your existing tax problem (if any), whichever is higher." (SER 380.) As of January 31, 1990, TPCS had only three purchasers of the Untax Package. By December 31, 1993, TPCS recorded 3,848 purchasers and income from them of $7,638,625. (SER 19.)

TPCS had ordinary members who did not purchase the Untax Package but who did pay $45 for membership. By the end of 1993 there were 12,617 in this category. (SER 19.) They received TPCS's magazine, The Connector. The magazine carried the subtitle "The Voice of Freedom" and ran a facsimile of an American flag as its logo. Its pages repeated at their foot the mantra of the Society, "Income Tax Is Voluntary!" The Connector informed its readers that there was no law making anyone liable for income tax.

TPCS had a cadre superior to that of mere members, constituted by those admitted to the status of Associate Member. An Associate Member had the right to sell the publications of TPCS. He paid $10,000 to acquire the franchise and the confidential instructions on marketing that accompanied the franchise. By December 31, 1993, there were 730 persons who had been admitted to this advanced status. Apparently some associates got a discount, for the total paid by them recorded in the Society's book was $5,281,010. (SER 19.)

Phillip Marsh conceived the idea of TPCS. His wife Marlene joined him in marketing it. Together they traveled the United States soliciting the purchase of memberships and Untax Packages and speaking at seminars and conferences intended to promote TPCS. Marlene's daughter, Jill Spencer, was an Associate Member and the office manager, in the latter capacity opening and distributing mail sent to TPCS, logging cash received and responding to some customer complaints. Her husband Darrell was also an Associate Member. He became TPCS's General Manager, overseeing staff and publications, revising the Untax Package, and writing in his own name in The Connector, to explain why paying income tax was optional.

A family operation, TPCS was aided by Joseph Coltrane, alias John Campion, and by Douglas Carpa. Coltrane was the National Coordinator of the TPCS sales force. Carpa was not a TPCS member but from approximately May 1991 to June 1992 assisted the marketing of memberships in TPCS by putting together trusts in which TPCS members might hope to hide their assets from the IRS. He offered his drafts of trust instruments only to those who purchased the Untax Package. He assured members that his trusts were "old and cold" and would work to cure even pre-existing problems with the IRS because the trusts would be predated to a time before an IRS lien.

In its publications TPCS asserted that it was not a tax protester movement, that it did not deny the constitutionality of the Internal Revenue Code, and that it did not maintain that Congress lacked the power to tax income. TPCS simply taught that Congress had not exerted that power and that the IRS was "a private corporation" engaged in lawless efforts to extract money from Americans not obliged to pay. TPCS characterized its own teachings as educational and added that they were the exercise of free speech, protected by the First Amendment from prosecution.

TPCS was aware that the IRS challenged its view of the law, an awareness reinforced by the rejection that TPCS's Untax Package received when put into practice by members. The IRS by 1991 was aware of TPCS and alert to its raison d'etre. In February 1992 an affidavit filed by IRS Special Agent Diane Messer characterized TPCS as an "illegal tax protester organization" and sought a search warrant authorizing the seizure of documents pertaining to TPCS and to Phillip and Marlene Marsh. The search was to be carried out at the Marshes' home, which they used as the Society's headquarters. Pursuant to the warrant, a comprehensive seizure was made of the correspondence, computers, and file cabinets of the Society.

Apparently as a response to the search, on August 12, 1992, in Stockton, California, Phillip and Marlene Marsh and Jill Spencer signed two papers alleging that certain persons were indebted to them in the amount of $350,000 each and seeking to place a commercial lien on the property of the debtors. These persons were Agent Messer and three other IRS agents involved in the search; the United States Magistrates who had authorized the search; three United States attorneys in the Eastern District of California and one United States attorney in the Northern District; Lawrence Karlton, Senior District Judge of the Eastern District; and California Superior Court Judge Jeremy Fogel. The liens were filed in Nevada and Washington.

A year later, in February 1993, a second affidavit executed by Agent Messer asserted that TPCS was "so permeated with involvement with illegal activities" that a comprehensive search could not separate the few innocent items "from the vast amount of material which will be relevant evidence of the criminal violations." The Marshes then moved from California to Colorado and from their home there continued their enterprise under the name the Liberty Foundation. A third affidavit executed by Messer led to the comprehensive search of the Colorado office in December 1993.

A grand jury had already, on November 29, 1993, indicted the defendants for conspiracy to defraud the United States. The defendants moved unsuccessfully to suppress the material seized by the government from their files. Phillip Marsh sought with equal unsuccess to introduce a report by a psychiatrist who evaluated him and found him to suffer from delusions; the psychiatrist's proffered testimony was excluded in limine on the government's motion. Trial followed in the district court for Northern California running slightly over three months, from August 29, 1994 to November 30, 1994. The jury was unable to agree on the principal counts.

The United States obtained a superseding indictment charging all six defendants with conspiracy to defraud the United States by obstructing the lawful functions of the IRS, in particular by their operation and promotion of TPCS and the Untax Package. The two Marshes and the two Spencers were personally charged with tax evasion and failure to file a return. The indictment also charged all defendants except Carpa with numerous counts of mail fraud in the sale of the Untax Package to over 3,000 persons. The two Marshes and Jill Spencer were charged with endeavoring to impede the administration of the tax laws by filing the commercial liens in Nevada and Washington against the government officials named in them.

The government announced in its Status Conference Statement that it intended to introduce "as much of its evidence as possible through `summary witnesses.'" The defendants filed a joint motion in limine opposing this procedure: "it appears that the government intends to avoid cross-examination of the alleged mail fraud victims by hearsay summaries." The government had proposed that IRS agents read excerpts from the TPCS files. The defendants objected that the material from TPCS files — complaint letters from persons saying that they had been deceived by TPCS — fell within no exception to the hearsay rule. The defendants asserted that the procedure would violate their Sixth Amendment right to confront their accusers. Citing Coy v. Iowa, 487 U.S. 1012 (1988), where the Supreme Court held it unconstitutional to place a screen shielding the accusers from the defendant, the defendants here said: "Agent Durrette would be the screen between the defendants and their alleged victims."

A hearing was held the following week before the judge who had presided at the first trial in order to schedule the time allowed for trial. The court expressed dissatisfaction with the amount of time "wasted" by both sides in the first trial. The court stated that the jury had heard the details of the untaxing scheme "ad nauseam." The government argued that the first jury had been "affected by the government's inability to present the case in a way that educated them as to what our theory of the case was, what our evidence meant, during the presentation of the evidence." The court asked, "What stopped you?" The government replied that the court had stopped it from having a witness read from the material seized in the searches. The government went on to say that it had to prove the defendants' state of mind as to both the mail fraud counts and the tax evasion counts. The court:

"It seems to me that is proved by the quality of the evidence as opposed to the quantity of the evidence." The court went on to say: "I thought the victims were a disaster for the government . . . .[T]he victims were particularly unsympathetic. They were people who were already in serious trouble with the Internal Revenue Service, were essentially tax cheats themselves; and were put on the witness stand with the representation that they were somehow victimized by the defendants . . . . And I'm convinced that your case ran aground with that first group of witnesses." The district court never formally ruled on the defendants' in limine motion to exclude the complaint letters; the government concluded that it had a green light.

On November 9, the government offered Agent Durrette to summarize material taken from the files of TPCS. The defendants stipulated that the material came from the files — the government would not have to prove where each piece of correspondence came from. The court described the stipulation. It was "that these TPCS client file documents would simply be stipulated as to their admission into evidence without the necessity of putting a witness on the stand to lay any foundation as to these documents. And the stipulation would be that these documents were found in one or the other of the facilities associated with the Pilot Connection Society." The government answered, "Yes." Agreeing, the defendants again vigorously objected to the government's presentation of the files through testimony about their contents by Durrette. The government replied that proof of the defendants' state of mind was "the heart and soul" of its case.

Durrette took the stand. The government had prepared an extensive file of material taken from TPCS with duplicates of a number of letters to be given as handouts to the jury. The material consisted substantially in statements of government officials as to what the income tax law was, statements of other persons including officers of the Church of Jesus Christ of Latter Day Saints on the obligation to pay income taxes, and letters from purchasers of the Untax Package complaining that the Package did not work or, worse, that they had been fraudulently induced to buy it.

The defendants objected repeatedly to the procedure — to Durrette's reading of views on the law as argument by the government, to Durrette's reading of selected passages from the correspondence as not summarizing but highlighting, and to the reading of the complaints as violative of the Confrontation Clause. Every objection was overruled by the trial court.

The second trial was two months shorter than the first. On December 13, 1995 the jury found all six defendants guilty of violating 18 U.S.C. § 371 by conspiring to defraud the United States in the collection of income taxes. Phillip and Marlene Marsh and Jill Spencer were convicted of two counts of violation of 26 U.S.C. § 7212(a) by corruptly endeavoring to obstruct the administration of the income tax laws by filing the liens. Both the Marshes and both the Spencers were convicted of violating 26 U.S.C. § 7201 by tax evasion and violating 26 U.S.C. § 7203 by failing to file tax returns. Both Marshes were acquitted of ten counts of mail fraud and convicted of ten counts of mail fraud in violation of 18 U.S.C. § 1341. Both Spencers were similarly acquitted, Darrell of five, Jill of nine counts, and similarly convicted of nine mail fraud counts; and Coltrane was convicted of six mail fraud counts. The court denied Rule 29 motions, including motions by the Marshes and Jill Spencer to dismiss the obstruction charges on the ground of lack of venue.

On June 26, 1996 the court pronounced sentence. Phillip Marsh was sentenced to 5 years imprisonment for conspiracy to defraud the United States; 5 years imprisonment for each of his ten mail fraud convictions; 5 years imprisonment on each of two convictions of tax evasion; 3 years imprisonment for each his two endeavors to impede the administration of the tax laws; and 1 year imprisonment for each conviction of willful failure to file tax returns. The sentences for conspiracy, tax evasion and 9 of the 10 mail fraud counts were to be served concurrently with each other. The 3 year sentences for the endeavor to impede were to be were to be served consecutively to the other counts and to each other. The 1 year sentences for the two failures to file counts served consecutively to each other and the other counts. The sentence on the two tax evasion counts and two failure to file counts totals 7 years. The 5 year sentence for the tenth mail fraud charge was to be served consecutively to the extent necessary to produce a total sentence of 17 1/2 years.

Marlene Marsh was sentenced to 5 years imprisonment for conspiracy to defraud the United States; 5 years each for the 10 mail fraud counts, 5 years each for the two tax evasion counts, 3 years on each of the 2 counts of endeavor to impede, 1 year on each of the 2 convictions of willful failure to file. The 3 year sentences for endeavor to impede were to be served concurrently with each other and consecutively to the other sentences, the 1 year sentences for failure to file were to be served consecutively to each other and to the other sentences, and the 5 years for the two tax evasion counts and 10 mail counts were to be served concurrently to each other and consecutively to the other sentences to the extent necessary to produce a total sentence of 14 years. The sentence on the two tax evasion counts and two failure to file counts totals 7 years.

Darrell Spencer was sentenced to 5 years imprisonment for conspiracy to defraud the United States, 5 years on each of 9 mail fraud convictions, 5 years on each of 2 tax evasion convictions, and 1 year on each of 2 failure to file convictions. The sentence for conspiracy, the 2 tax evasion sentences, and 8 of the 9 mail fraud sentences were to be served concurrently, as were the sentences for failure to file. The sentence on the two tax evasion counts and two failure to file counts totals 5 years. The ninth mail fraud sentence was to be served consecutively to the other sentences to the extent necessary to produce a total of 7 1/4 years.

Jill Spencer was sentenced to 5 years of imprisonment for conspiracy to defraud the United States, 5 years on each of 9 mail fraud convictions, 5 years on each of 2 tax evasion convictions, 1 year on each of 2 failure to file convictions, and 3 years on each of 2 convictions to impede. The sentences for conspiracy, tax evasion and the 9 mail fraud counts were to be served concurrently, as were the sentences for failure to file. The sentence on the two tax evasion counts and the two failure to file counts totals 5 years. The two 3 year sentences for corrupt endeavor to impede were to be served concurrently to each other but consecutively to the other sentences to the extent necessary to produce a total sentence of 7 1/4 years.

Coltrane was sentenced to 5 years for a conspiracy to defraud the United States and 1/4 year imprisonment on one count of mail fraud, the sentences on the other counts of mail fraud to be served concurrently. Carpa was sentenced to 4 3/4 years on conviction of conspiracy to defraud the United States.

The defendants appeal.

ANALYSIS

All defendants contend that they were denied the right to confront the witnesses against them when Agent Durrette read to the jury excerpts from material found in the defendants' files.

The following are from the excerpts read aloud to the jury by Agent Durrette: (The excerpts are exact, but not given in full; the authorships and dates are as read.)

    1. "Some so-called tax protesters are making speeches and
    offering seminars around the country at which serious
    misrepresentations about the tax laws are being presented to the
    public as fact." Fact Sheet.

    2. "Indeed, it is strange how the mind justifies things. For
    example, the way you justify `untaxing' people by blatantly
    misrepresenting the truth about your so-called `untaxing' program
    for the sole purpose of lining your pockets with unsuspecting
    victim's hard earned money while you sit idly by and watch the
    Franchise Tax Board and Internal Revenue Service come in and
    steal everything they have — knowing full well that this will be
    the outcome." Letter from Shawn O'Connor, 7/6/92.

    3. "Why would I sent you a check for $8,745 when you have not got
    the lien off my home?" Letter from Curtis Howard 5/29/91.

    4. "To date, the Pilot Connection System has not given any relief
    and has only compounded my tax problems. On the basis of fraud, I
    herewith demand the return of my $2,000 plus $499." Letter,
    6/3/91.

    5. "[The failure to succeed in not paying taxes] makes our
    statement, `stop paying taxes permanently and legally' far from
    being the truth." Letter from Hugh Bodey, 7/6/91.

    6. "You did not `untax me legally and permanently' as promised —
    and, I am confident, that and if and when I have to go to court,
    you would drop me as you have others that I am hearing about."
    Letter from Hugh Bodey, 8/10/91.

    7. "The program was sold to me under, what I now consider false
    pretenses. In fact, I would go so far as to say it was out and
    outright fraud." Letter from Roger Hawks, 8/12/91.

    8. "Due to the facts provided to us by you, some of which we now
    know to be out and out lies, we signed on with your
    organization." Letter from Arthur and Donna Fuller, 8/15/91.

    9. "Bob Kane [a lawyer] told our company attorney (see memo) that
    I had a zero percent chance of ever eventually winning against
    the IRS." Letter 8/16/91.

    10. "Despite all the Pilot Connection's and Greg Galaski's
    efforts, I was given two options by a federal judge: I could
    comply with the court's order in person or at the IRS office, or
    I could comply from the adult detention center in downtown Los
    Angeles."

    "I am asking nothing of the Pilot Connection now, Darrell,
    because I don't believe in it anymore. The only thing I have
    asked is that Don Held make good on his promise to give me back
    the money I paid him if the untax program didn't work." Letter
    from Dan Barwick, 8/3/91.

    11. "When I joined the Connection I thought they had found that
    simple key to avoid taxes and a `voluntary' part of the IRS
    system, if people qualified. As it appears now it doesn't work so
    I have decided to look for work elsewhere." Letter from Ogden
    Kraut, 8/15/91.

    12. "When I joined the Pilot Connection, I believed what I was
    told and being naive about patriot issues didn't have the
    knowledge to spot defects and lies in your program." Letter,
    10/14/91.

    13. "I am in a situation now that I have no income and I had to
    borrow the $4,000 that I paid to the Pilot Connection and I've
    received nothing but broken promises and lies." Letter, 11/1/91.

    14. "When I first became involved with your group I believed what
    you were saying was true and factual. But the longer I used the
    Pilot Connection's system the more it becomes evident the system
    does not work."

    "You have been dishonest in your allegations and letter process
    and I feel that I cannot do business with anyone or any company
    or group that is deceitful."

    "You have fraudulently taken money from me and at this time I
    wish to have all monies returned to me." Letter, 11/29/91,

    15. "I cannot sell a bill of goods to someone that I can't even
    deliver for myself and my wife. We did not have a problem

    when we started this program, but we seem to be developing one
    and my wife is really scared, because she is afraid of going to
    jail and losing her job where she has 26 years service and has
    only 4 years to go before retirement." Letter from Darrell Hoover,
    12/18/91.

    16. "We have found, in doing further research, at the law
    library, that your organization is teaching incorrect principles
    dealing with some very serious legal matters." Letter from Robert
    and Leah Aycock, 12/18/91.

    17. "I don't think you realize the sad situations a lot of us are
    in. You talk a good line over the phone, but where's the beef?"
    Letter to Pilot Connection/Phil Marsh.

    18. "We have done everything in the pamphlet plus every step Jim
    Caler said and still problems. Federal and state has attached
    both of our wages again, but this time the interest and penalties
    are even higher . . . Take us off the Pilot Connection." Letter,
    1/22/92.

    19. "This is our letter of resignation due to the fact that I
    believe your material and system of removing people from state
    and federal taxes is fraudulent." Letter, 3/2/92.

    20. "I paid you $15,000 to take care of my liens and levies and I
    expect to see this accomplished. I have become very insecure with
    the lack of performance." Letter, 2/5/92.

    21. "Now I don't know what I have to do. I still have a lien
    against me. They still did not remove the lien." Letter, 2/25/92.

    22. "Everything we have been told has been wrong and we no longer
    have any confidence with you and your organization." Letter
    5/16/92.

    23. "I learned that the rest of your stupid arguments are
    `frivolous' arguments. I call them `stupid' because the courts
    are getting pissed off. They told us [patriots] over and over
    that these are frivolous arguments that they don't want to hear
    any more. They take the attitude, and rightly so, that we are
    wasting their time, and the taxpayers' money, with arguments that
    have repeatedly lost. They have no patience with people using
    these stupid arguments." Letter from Roy Buchanan.

    24. "I am writing to express my disappointment in your `untaxing'
    program . . . . I also followed your lien and levy procedures, but
    to no avail. I still have a tax lien on file and levy notices
    still follow me." Letter from Les Johnson 8/11/92.

    25. "[My attorney said] that the package was not legally sound
    for me." Letter from Michael Hutton 9/9/92.

    26. "According to this final notice, I do not believe that I have
    been untaxed by the Pilot Connection." Letter dated 9/28/92.

    27. Your untax program costs me $1,100 and was absolutely
    worthless . . . . Thanks a lot for wasting my hard-earned
    retirement savings." Letter from David Mayo.

    28. "Upon further investigation and study I have found your
    information to be incomplete and misleading. The damage done as a
    result of placing my hope and trust in you has created a
    complexity of criminal violations that could cost me my family,
    home, business and, most importantly, my personal freedom."
    Letter from Ina Gregory 10/1/92.

    29. "He inferred that the IRS does not pay attention to the
    notice of revocation and other strategies used by the Pilot
    Connection. That I might end up paying the IRS and the P.C., that
    the Pilot Connection was a scam and Phil is mainly out to get
    people's money." Letter 10/28/92.

    30. "What kind of people are you anyway? You take my money and
    your organization does not perform what you promise and then
    become abusive and threatening to me? . . . I also want my $3,500
    back A.S.A.P." Letter dated November 1992.

    31. "I have talked at length with people in my town about all
    that I read in your book. And most of the response I have gotten
    is — `sure, I know someone honest tried this and they are
    serving time in Leavenworth.'" Letter 11/1/92

    32. "Pilot Connection Society has made false claims to its
    untaxed members, which has misled them and also places them and
    their families in jeopardy of being convicted of tax evasion."
    Letter dated 11/18/92.

    33. "They levied my wages anyway. What kind of bull is this? I
    would like my $1,500 refunded. How can you folks in good
    conscience keep on with this crap? Like I said, I do want a
    refund. Because you did nothing at all to earn the $1,500. It
    seems to be a big joke." Letter from Chris Yost.

    34. "This letter will serve as my formal resignation from the
    Pilot Connection Society; effective upon receipt. My decision to
    enter into an agreement with your organization was based on
    misrepresentations made by you and your employees. The assistance
    and services I was led to believe I would receive was never
    provided. I have witnesses and proof of this fraud." Letter from
    Ed Maxime.

    35. "In today's trial, the judge looked at the P.C. material I
    had included in my brief. . . . The judge ridiculed it; said that
    all of those types of approaches had long since been tried and
    rejected." Letter from Albert Baxter 12/8/92.

    36. "You have claimed to have `untaxed' in excess of 17,000
    people of which surely 1 percent would have received the letters
    from the IRS . . . . I am not asking for even 1 percent of
    documented proof of these letters but only of 1/2 percent of
    documented proof which would be 85 letters. (I don't even believe
    that you can provide 10 percent of that)." Letter 1/13/93.

    37. "We trusted Liberty Foundation (Pilot Connection) only to
    realize that our 3 and a half year battle with the IRS was all
    for nothing. It disrupted our lives. During wage garnishments we
    had no money. Try explaining to the children why there won't be
    any Christmas. Sob stories to you, real life to us. We lost a lot
    of money by trusting in the Liberty Foundation. Worse than that,
    we lost our liberty, the very thing your company offers." Letter
    11/3/93.

The government argues vigorously that this mass of accusations was admissible because the jury was instructed that the accusations were admitted not for the truth of the statements but to show the state of mind of the defendants. That was certainly the government's rationale. The difficulty with the government's position is that the jury was not instructed to limit its consideration to the defendants' state of mind. In its brief on appeal the government points to a statement of the court made on November 20 in reference to a document then read to the jury. This instruction has no apparent relevance to the documents read to the jury on November 9. An examination of the record on November 9 shows that, after being reminded of the defendants' in limine motion, the trial court told the government to proceed. At this time, at the start of Durrette's reading, the jury was given no instruction whatsoever as to its purpose or limits.

Both the prosecution and defense counsel stated that they had "cautionary instructions" to offer. The government said its was the instruction that the court had given during the initial jury instructions. The court, in fact, gave no instruction, so we are uncertain what was offered on November 9. However, we have reviewed the preliminary jury instructions to see if they did contain relevant cautionary words. The most relevant of these instructions are as follows:

    Evidence may be introduced for the limited purpose of
    establishing that the defendants were aware of materials that
    expressed opinions in conflict with those expressed by the Pilot
    Connection Society regarding the success of a tax-related program
    marketed by the tax — by the Pilot Connection Society. Before you
    may consider any such evidence against a particular defendant,
    you must find that the defendant knew of the existence of these
    materials or their contents. (Tr. 11/2/95, vol. 2, at 143.)

    An intent to defraud may be demonstrated by the scheme itself.
    Similarly, the defendant's knowledge of a false statement or his
    or her reckless indifference to the truth or falsity of that
    statement can demonstrate an intent to defraud. (Id. at 149.)

    In determining whether or not the government proves that a
    defendant acted with an intent to defraud and to obtain money or
    property by means of false promises or statements or whether
    defendant acted in good faith, you must consider all of the
    evidence in the case bearing on defendant's statement. (Id. at
    150.)

None of these instructions limit the jury's consideration of material from the files for the truth of what is contained in them.

The first time that the court told the jury why the documents were being read — sometime into the reading — the court said, "And it's clear from the court's instructions to the jury — and, ladies and gentlemen, if any of you have any questions, please let me know. But it's clear that the documents themselves are the evidence. And they are being introduced to show what documents were at the various locations at the various times that the witness testified about." A little later in response to another objection from the defendants, the court said: "This is a document in the files of the Pilot Connection Society found on the date indicated, and that's what the document is being offered for. Again, is there any question that any juror has that that is the evidence which is being offered?" Neither of these instructions tells the jury not to consider the truth of the matters read.

The first time an instruction on the defendants' state of mind was given was in reference not to accusations against TPCS but to an objection to Durrette reading from an IRS tax manual found in the files: "The court is permitting the government to argue cases that have been overruled as a matter of law and citing legal principles that are no longer valid as if that's notice of anything, and to that I most strenuously object and move to strike." The court responded: "Well, the objection is overruled. This is clear this is an IRS tax manual. The exact current status of the propositions of law referred to in the manual are not issues for the jury to decide. They are not necessarily part of the instructions. What this is being offered for is a document that was in the files at the place and at the time indicated by Mr. Durrette. And that bears on it being offered with respect to the intent issues in this case vis-a-vis the present defendants. But we are not here to argue the law." (Tr. 11/9/95 at 78-79.) This instruction only indicates the purpose of the reading of material on the tax laws.

To the next objection by defendants the court said: "Counsel, I have been very patient this morning. Perhaps that's a change in my attitude, but I am beginning to lose patience. You have made a number of objections to this evidence. I have ruled on these. It's clear what the evidence is being offered for. The jury has been repeatedly instructed on this. The jury has been told that what they are receiving are excerpts of documents that are being admitted into evidence, and for illustrative purposes Ms. Teters and the witness are going through and pointing out certain things that the government contends are of significance. Now, it's quite clear what is going on, and it need not be a process that is periodically punctuated by speechifying by lawyers. Your objections are preserved, and so there isn't any need for undue interruption and prolongation of this process."

The first time any instruction regarding complaint letters or similar materials was given was much later in Durrette's testimony when he read from a Clarion Ledger, Jackson, Mississippi, editorial dated March 28, 1990, which stated: "Tax protesters become a part of the con job that is played on the American people." Counsel for the defendants objected: "I am at a loss as to exactly what these editorial comments are providing notice of except the opinion of someone who wrote an editorial." The court responded: "This is simply being offered for the state of mind of the defendants." (Id. at 111-12.) Much later in Durette's reading, a letter of Rudy and Gloria Medina resigning from TPCS was read followed by a complaint letter dated September 3, 1991. The defense again objected to these letters as hearsay. The court stated again: "Well, as we discussed in the past, this is being offered for the state of mind of the defendants." (Id. at 185.)

It is apparent from this review that on three occasions the jury was told that particular documents being read related to the defendants' "intent" or the defendants' "state of mind." At no time was the jury instructed that they were not to consider the accusations as conveying truth about the facts alleged in them. At no point was the jury told that these were limiting instructions which confined the way they must look at the evidence.

In the first of the rulings that responded to defense objections, twice repeated, the court told the jury merely that the documents being read had been found at TPCS headquarters. The court assumed that instructing the jury that what was being established by the reading was that the documents were found at TPCS headquarters operated as a restraint on the jury's use of the documents. But for all the jury was instructed, it could do whatever it wanted with what was found at TPCS headquarters.

If these accusations were to be admitted, it was incumbent on the court to give clear instruction to the jury distinguishing what they could treat as showing the knowledge of defendants and what they could not treat as evidence of crime. Aside from the three brief and particular references cited above, no instructions at all were given on this vital point. The three brief references were entirely insufficient to clarify a concept that even for lawyers is not an easy one — the difference between taking a statement for its truth value and limiting it simply to the effect of the statement on the mind of the person exposed to it. Even to a person trained in the law it takes a mental effort of some magnitude to hear a letter strongly manifesting the mind of the letter-writer as to the truth of events the letter-writer says have happened and to distinguish between the asserted truth and the effect of the communication on the mind of the recipient of the letter. There are cases in which such letters have been admitted to show the knowledge of the recipient, See e.g. United States v. Lasky, 600 F.2d 765, 769 (9th Cir. 1979); United States v. Farkas, 935 F.2d 962, 965 (8th Cir. 1991), but always with a clear instruction that the letters should not be considered for the truth of the matters contained therein. Without such limitation the accusations act as testimony against the defendants.

The instructions ultimately given the jury as it retired did not cure the omission. The jury was told that only defendants who knew or "should have known" of the documents should be charged with notice of their contents. This instruction in no way limited the jury in considering the truth of the contents. The jury was also told that it should observe any limiting instructions that had been given in the course of the trial. No instructions had been given telling the jury that it could not take the truth of the 37 accusations enumerated above into account. 

The government does not argue that the defendants waived their Confrontation Clause objection by not raising it again when the final instructions were prepared. The defendants were not obliged to object again when they had made their in limine motion and formally presented it to the court which disregarded it and which rebuked the defendants with some asperity when they raised the objection again during Durrette's testimony. The defendants did not have to perform a vain act.

As Durrette read material into the record unlimited in its bearing, abundant hearsay was presented to the jury. The right secured to the defendants by the Sixth Amendment was violated. The right to cross-examine one's accusers is fundamental in our system of justice. Olden v. Kentucky, 488 U.S. 227, 231 (1988). Cross-examination is "the principal means by which the believability of a witness and the truth of his testimony are tested." Davis v. Alaska, 415 U.S. 308, 316 (1974).

When a constitutional right is violated by trial rulings, we are bound to determine whether the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24 (1967). The government here had a strong case based on the contents of the Untax Packages that the defendants put together and promoted. The defendants had a not very plausible defense that TPCS was an educational enterprise exercising its right to free speech. If that defense was to have any chance of creating a reasonable doubt in the jurors' minds, the jurors had to credit the defendants with honesty. The hearsay accusations destroyed that chance. Taken as true, as the jury was allowed to take them, the accusations established that the defendants were hypocrites, liars, callous exploiters of their victims, operators of a major scam.

The 37 accusations were overwhelming evidence of the scheme of mail fraud charged in the indictment and exemplified in the particular mail fraud counts. The three live witnesses to mail fraud that the government produced were David Anderson, who admitted to having embezzled taxes he withheld from his employees before he had any contact with TPCS; Debbie Long, whose disillusionment with TPCS came when the State of California levied on her wages; and Clifford Koeper, who believed that Untax Package did not work but became an Associate Member of TPCS and sold the Untax Package to two others. The burden of the government's mail fraud case was carried largely by the accusations read into the record. When the government on appeal states there was "ample evidence the TPCS members did not get what they paid for," (Appellee Br. at 46.) (italics in original), and that "there is no better proof of the fact that TPCS members did not get what they paid for than the testimony of the victims," (Id. at 47), the government does not cite the testimony of Anderson, Longer, and Koeper, but appears to invoke all the accusations that become part of what the jury had before it.

The evidence proving the existence of a scheme to commit mail fraud was linked to the evidence proving the conspiracy to defraud the United States. Count One of the indictment listed the fraudulent recruitment of taxpayers by TPCS as overt acts carrying out the conspiracy. Addressing the jury in closing arguments, the government specifically urged that the defendants' deceitful recruiting of TPCS members was proof of the conspiracy to defraud the United States ("they lie as to how many people have been successfully untaxed, they lie as to the numbers of people in the organization, and the effectiveness of their methods"). The government immediately added: "The instructions that the judge has given you are that you need only find that one overt act, as listed in the indictment, was committed in furtherance of the conspiracy that's alleged there."

The accusations of fraud on the TPCS members proved, or could have been taken by the jury as proving, both the mail fraud counts and the conspiracy count. It is difficult for us to determine beyond a reasonable doubt that they did not function in this way. When you hear that defendants have told out-and-out lies, run a scam, and used false pretenses, and you are not limited how you can use this evidence, it would be entirely natural to credit the accusations so vigorously advanced as true. In confirmation of this conclusion is the difference in the outcome of the two trials. When the government had to produce a number of live witnesses who were themselves tax cheats, the jury hung. With these inconvenient witnesses eliminated, the jury convicted. The palpable difference in result makes likely that the change of evidence to the presentation of hearsay tipped the scales. We cannot say beyond a reasonable doubt that the violations of the Confrontation Clause did not produce result. The convictions of the Marshes, the Spencers and Coltrane of mail fraud and of conspiracy to defraud the United States must be set aside.

Carpa presents a different case. The jury was explicitly instructed not to consider against him the letters read from the files. The jury is presumed to have obeyed this instruction. However, the letters went very far to show that TPCS was a criminal conspiracy, and the existence of this conspiracy had to be proved in order to make Carpa a conspirator. The reversal of the convictions of the Marshes, Spencers, and Coltrane for conspiracy leaves Carpa without other convicted conspirators and with proof of his part in a conspiracy dependent on the evidence showing TPCS to be a conspiracy. Under these circumstances, Carpa's conviction of conspiracy must also be reversed.

The Commercial Liens. The filing of baseless liens to harass government officials has become a standard tax protestor ploy. The liens are easy to file and not easy to remove. No judge or other officer of the government would like to have them filed on his or her property. They bear the mark of malice, as they do in the case where they appear as a mean response to a lawfully authorized search. Nonetheless, the crime can be punished only in accordance with law.

The indictment charged that the Marshes "did corruptly endeavor to intimidate and impede" certain officers of the United States by the filing of the liens in Nevada and Washington. The officers were located in the Eastern and Northern Districts of California. None were in Nevada or Washington. The liens were mailed for filing from the Eastern District of California. The question was put to the jury whether venue for the crime could be found in the Northern District. The jury's verdict of guilty so found. The affected defendants challenge the finding.

The government's argument is that an effect of the filing of the liens was an impact on the IRS officers in San Jose, California, who were conducting a criminal investigation of the defendants. The government invokes United States v. Angotti, 105 F.3d 539 (9th Cir. 1997) (venue for the prosecution of the crime of making a false statement in violation of 18 U.S.C. § 1014 lies where the crime is completed by the statement having effect). The problem with Angotti as analogy is that the crime of endeavoring to impede the IRS is complete when the endeavor is made. The government did not have to show that its agents abandoned their investigation or even that the agents were anxious about the effect of the liens on their credit. No effect need be proved. The filing of the lien is the crime. The government itself presented this exact description of the crime to the jury in its closing argument:

    "All you have to find is that there was an attempt. Because
    that's what a corrupt endeavor is." (Tr. 12/8/95 at 11) The jury
    could not find that any step to complete the crime was taken in
    the Northern District of California when the criminal deeds had
    already been committed. Venue as required by the Sixth Amendment
    was lacking. The convictions on these counts must be set aside.

Waivers. Two issues now raised by the defendants were waived at trial. On the face of the indictments the venue of the tax counts was wrong: the Marshes and Spencers had been residents of the Eastern District of California, but they were being tried in the Northern District. The defendants said not a word about the venue until they were convicted. They now contend that the government might have proved some act in the Northern District that would have related to the tax courts and justified the venue; they could not know till the trial was over. The defendants waited too long. They cannot sandbag the government after the verdict is in. United States v. Powell, 498 F.2d 890, 891-92 (9th Cir. 1974).

Phillip Marsh earnestly urges that the exclusion of the evidence of his psychological state was error in the light of our en banc decision in United States v. Morales, 108 F.3d 1031 (9th Cir. 1997), which he characterizes as establishing a new constitutional rule that should be applied retroactively. Griffith v. Kentucky, 479 U.S. 314 (1987). Morales did not announce new constitutional doctrine but applied the Federal Rules of Evidence. Marsh cannot benefit from the case retroactively. He waived his right to introduce the psychiatrist's testimony by not seeking to introduce it in the second trial. We find no plain error.

Other issues raised by the defendants need not be considered in view of our ruling on the principal counts.

SUMMARY

The convictions of all six defendants of violation of 18 U.S.C. § 371 are REVERSED. The convictions of the Marshes and Jill Spencer of endeavoring to obstruct the administration of the tax laws are REVERSED. The convictions of the Marshes and the Spencers and Coltrane of mail fraud are REVERSED. The convictions of the Marshes and the Spencers of failure to file and to tax evasion and the sentences for these offenses are AFFIRMED.