On Appeal from the United States District Court for the District Court of Maine / REPLY BRIEF OF ROBINSON

My APPEAL was filed with the Boston Appeal Court on October 23, 2015, and  I have been waiting ever since for an answer regarding this Appeal.

No. 15-2172

In the

United States Court of Appeals

for the First Circuit

United States of America,

Plaintiff-Appellee,

v.

David Everett Robinson,

Defendant-Appellant.

On Appeal from the United States District Court

for the District Court of Maine

Reply Brief of Robinson

Seth H. Kretzer

Law Offices of Seth Kretzer

440 Louisiana Street; Suite 200

Houston, Texas 77002

[Tel.] (713) 775-3050

[Fax] (713) 224-3967

Court-Appointed Attorney for Appellant Robinson

Table of Contents

Page(s)

 

Table of Authorities

Cases

Iannelli v. United States, 420 U.S. 770 (1975) 2

United States v. Rivera-Donate, 682 F.3d 120 (1st Cir. 2012) 5

Statutes, Rules, and Guidelines

18 U.S.C. § 666 4

Fed. R. Evid. 801 (d)(2)(E) 5

Abraham Goldstein, Conspiracy to Defraud the United States, 68 Yale L. J. 405, 411 (1959) 2

Wayne R. LaFave, Substantive Criminal Law, 2 Subst. Crim. L. § 13.1 (2d ed.) 3

Argument

I. The Government Concedes That It Cannot Show Any Agreement Between Robinson and Messier From the A Priori Perspective

The structure of the Government’s brief limns the problem with its theory of Robinson’s guilt. Previewing the arguments to follow, the Government explains, “We begin by detailing Messier’s own efforts to impede the IRS.” Gov’t Br. at 3. Next, the Government tells us that, “[s]tarting in 1998, Messier stopped filing tax returns and instead embarked on a course intended to prevent the IRS from assessing or collecting his income taxes.” Id. at 4.

In other words, the Government’s brief volunteers two parameters: 1) Messier began to do bad things in 1998 and 2) Robinson did some things with Messier starting “in early 2012.”

The point to take away is that the Government cannot easily state what it feels that Robinson did to conspire sui generis with Messier, but rather only what Messier did (in the first instance) that Robinson subsequently became involved with 14 years later. The Government inculcates this temporal distinction when it writes:

Robinson, a Brunswick resident who was active with various anti-tax and sovereign citizen groups, began to assist co-defendant Messier in impeding the IRS in the collection of Messier’s unpaid taxes beginning in 2012.

Gov’t Br. at 3 (emphasis added).

This italicized language suggests an inchoate offense on the part of Robinson years after Messier began to avoid his taxes. Robinson knows that “[c]onspiracy is an inchoate offense, the essence of which is an agreement to commit an unlawful act.” Iannelli v. United States, 420 U.S. 770, 777 (1975). Robinson also recognizes that one may become a part of a conspiracy at any point in time, Abraham Goldstein, Conspiracy to Defraud the United States, 68 Yale L. J. 405, 411 (1959) (“the existence of a conspiracy may be inferred from the unfolding of events over an extended period of time”). Nevertheless, Robinson submits that the Government’s above-quoted introduction actually serves to illustrate his urged conclusion that his personal interactions with Messier rise to no more than aiding and abetting (which was not charged as his offense of conviction) because the trial evidence germane to conspiratorial mens rea was lacking.

II. The Government Largely Ignores Robinson’s Primary Argument Concerning Aiding And Abetting Versus Conspiracy

The Government’s brief largely ignores Robinson’s primary argument that the trial evidence showed no more than an (uncharged) aiding and abetting theory, rather than conspiracy. In particular, the Government mentions aiding and abetting exactly once and towards the end of its brief:

Considered together, the evidence proved much more than Robinson’s “mere presence” or “incidental” support of Messier (see Br. 16-17, 21) or that Robinson only “aided and abetted” Messier’s crimes (see Br. 18-19).

Gov’t Br. at 13.

Robinson submits that this is a very conclusory and outcome-determinative contention, in no small part because it is devoid of any reference to record evidence establishing Robinson’s conspiratorial mens rea.

Professor LaFave explains as follows about aiding and abetting:

The assistance rendered by the principal in the second degree has traditionally been referred to as ‘aiding and abetting.’ The term ‘abet’ is an appropriate one, for it contemplates aid combined with mens rea, while the term ‘aid’ standing alone is insufficient in that it does not suggest the necessity for a mental state in addition to conduct.

Wayne R. LaFave, Substantive Criminal Law, 2 Subst. Crim. L. § 13.1 (2d ed.) (citations omitted).

While Robinson’s primary argument remains that the Government could not have proved an aiding and abetting case had it proceeded to trial on such a theory, the Appellee’s failure to specifically identify what trial evidence bridges the chasm between aiding and abetting and conspiracy militates in favor of oral argument (to which the Government assents (Gov’t Br. at 1)) to separate the wheat from the chaff.

III. “Bribe” Is A Pejorative Word Used In the Appellee’s Brief That The Government Never Charged At Trial

The Appellee’s brief places a heavy emphasis on purported ‘bribery’ of Cumberland County Sheriff Kevin Joyce: “attempting to bribe a local sheriff to interfere in the IRS’s collection activities” (Gov’t Br. at 6); “presenting a bogus $100,000 money order to a local sheriff in an attempt to bribe the sheriff into investigating the IRS.” Gov’t Br. at 12. To the contrary, and quite saliently, the Government never charged Robinson with any form of bribery under federal law; the most commonly charged federal statute for bribery of a state official is 18 U.S.C. § 666, but this was never mentioned at the trial in any way, shape, or form. Moreover, citizen interactions with a state officeholder can hardly be regarded as “impeding” an operation of the federal government.

Regardless, the Appellee opines at length:

Contrary to defendant’s contention (Br. 20) that this was an effort “in favor of efficient government [which] cannot be said to obstruct/impede the operations of government” (emphasis deleted), a jury could reasonably infer that an attempt to pay the sheriff with a bogus money order was dishonest, that the defendants’ characterization of the $100,000 as payment for the sheriff’s “expenses” and their claims to the sheriff that the IRS had acted criminally were deceitful, and that their attempt to “persuade” the sheriff to “investigate” the IRS was intended to impede and interfere with the functioning of the IRS.

Gov’t Br. at 11-12, n.4.

It is striking that the Government does not offer a single citation to caselaw or a secondary source in support of its urged conclusion.

IV. The Government Cannot Cherry-Pick Points In Messier’s Testimony To Fill The Holes In Its Case

The Government’s fallback argument appears to be that Messier’s own testimony does Robinson in. Gov’t Br. at 9. As an initial matter, Robinson recognizes that “the uncorroborated testimony of a cooperating accomplice may sustain a conviction so long as that testimony is not facially incredible.” United States v. Rivera-Donate, 682 F.3d 120, 135 (1st Cir. 2012).

However, to the contrary, page 10 of the appellant’s opening brief quoted the Messier testimony where he was clear that he did not conspire with Robinson:

Q: And did you have an agreement with David to defraud the United States?

A: No. He never had any intentions of defrauding anyone.

Tr.3/626.

Even more problematic is the fact that the Government cannot point to anything in Messier’s testimony where he related anything Robinson actually did in furtherance of conspiratorial objectives. See generally Fed. R. Evid. 801 (d)(2)(E).

Conclusion

Robinson’s conviction must be reversed, because the legal characterization of instances of correlated conduct between Robinson and Messier does not rise to the level of evidence from which a reasonable juror could infer conspiracy.

Respectfully submitted,

____________________ Seth H. Kretzer

Law Offices of Seth Kretzer

440 Louisiana Street; Suite 200

Houston, Texas 77002

[Tel.] (713) 775-3050

seth@kretzerfirm.com (email)

Court-Appointed Attorney For Appellant Robinson

Certificate of Service

I certify that the Reply Brief of Appellant was filed with the Court by U.S. Mail, and in electronic format through the ECF system on the 24th day of October 2016. An electronic copy of the brief was served on counsel of record, as listed below, through the ECF system, on the same date.

_______________________

Seth H. Kretzer

Certificate of Compliance

1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 1,106 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in proportionately spaced typeface using Microsoft® Word 2007 in 14-point Times New Roman type.

Date: October 23, 2015 ________________________

Seth H. Kretzer

About David Robinson

REVISED: David Robinson is an Author and Journalist living in the mid-coast area of Maine. He is a Graduate and Alumni of the Brunswick Police Academy. He served as a JUROR seated on the Cumberland County, Maine, Grand Jury for the first four-month session of 2014. Publisher Robinson served 3 months of a 4-month sentence for Conspiracy to defraud the United States, at the FCI Berlin minimum security Satellite Camp in Berlin New Hampshire, as retaliation after he and a friend sued the IRS, unsuccessfully, for Unfair Trade Practices, under Title 15 of the US Code. +++ Maine Lawsuit Against The IRS: For Unfair Trade Practices (http://tinyurl.com/hm8gdls) +++ Failure to File & Conspiracy: United States vs. Messier & Robinson - No. 2:14-cr-00083-DBH (http://tinyurl.com/gwdyaps) +++ On Appeal from the United States District Court for the District Court of Maine / REPLY BRIEF OF ROBINSON (http://tinyurl.com/zyp9f3x) +++ Books by David E. Robinson (http://tinyurl.com/zrr9bxb)
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