Joseph R. "Joe" Banister

Saturday, May 28, 2005


Freedom Above Fortune News

From : Freedom Above Fortune
Reply-To : jbanister@freedomabovefortune.com
Sent : Saturday, May 28, 2005 11:00 AM
To : List
Subject : Trial Of Former IRS Special Agent - Latest Developments

Dear Friends:

It has been about 5 weeks since I last updated you about events surrounding my
June 14th, 2005 trial, where I will defend against allegations that I willfully
aided or assisted in the preparation and presentation of amended tax returns
that were false as to a material matter and that I conspired to defraud the
United States in connection with assistance rendered to my client, Walter “Al”

It has been a busy five weeks to be sure. My legal team and I have been pleased
with our progress to date but there is still much to be done. I apologize for
the length of this email. There have been a lot of developments and I want to
share those developments with all who have helped me in this battle. If you
don’t have time for all of the details, please check the end of the email for
information on how you can help during these last few weeks.

Most of my time has been spent helping to synthesize the evidence contained in
(now well over 20) boxes of evidence that I have accumulated since I began
investigating the federal income tax system in 1997. It is a gargantuan process
to synthesize 20 boxes of evidence into a format that can be reviewed by my
legal team both chronologically and by subject matter, and my training as a
Certified Public Accountant and former IRS criminal investigator has served me
well during this preparation phase.

Most of my legal team’s time has been spent dealing with some significant legal
and logistical issues that needed to be addressed over the last five weeks. The
first significant issue began late on Monday, April 25th, when I received
information that Robert “Bob” Gorini, my former supervisor at the Internal
Revenue Service Criminal Investigation Division (IRS-CID) to whom I had issued
my investigative report on the federal income tax, was leaving the United States
for Iraq in order to serve on a temporary assignment as a criminal investigator
for the Special Inspector General for Iraq Reconstruction. I immediately sent
an email to my legal team informing them that Mr. Gorini, whom I expected to
call as a witness to testify about my character and integrity, was preparing to
leave the country for an indeterminate period of time.

By Tuesday morning the 26th, I received a call from lead trial counsel Jeff
Dickstein of The Law Office of Robert G. Bernhoft, S.C. ( www.bernhoftlaw.com ).
Jeff urged me to travel to the federal courthouse in Sacramento, California and
get a trial subpoena for Mr. Gorini and see that he was served with that
subpoena before his departure to Iraq. I dropped everything and jumped in my
car for a two hour drive to the courthouse. I encountered significant red tape
at the court house, more than I expected, but I was able to leave there with an
official trial subpoena bearing Mr. Gorini’s name ordering him to appear at my
trial. As I drove back to San Jose, I made arrangements to have the subpoena
served by a professional process server and found that the only way I could get
the subpoena served that Tuesday evening was to get the subpoena to the process
server in San Jose by 4:30 PM. I arrived back in San Jose with only 5 minutes
to spare but gave the subpoena to the process server. I learned on Wednesday
morning that the subpoena had, indeed, been served on Mr. Gorini the previous
night. We waited all day Wednesday and all day Thursday for Mr. Gorini to call
attorney Jeff Dickstein, whose name and phone number were listed on the bottom
of the subpoena. Mr. Gorini never called.

We learned Thursday night, April 28th that the reason Mr. Gorini had failed to
call Mr. Dickstein was because he had signed an agreement with the IRS pledging
not to discuss IRS matters with anyone issuing him a subpoena after his
retirement. Mr. Gorini, who retired from the IRS a couple of years after my
resignation, perhaps realized that he may not have been able to rely on the IRS
to keep his best interests in mind and decided to contact Jeff Dickstein after

Fortunately, we learned that Mr. Gorini’s departure for Iraq was not to take
place until after he finished a multi-week training course in the Washington,
D.C. Arrangements were made to have Mr. Gorini submit to a videotaped
deposition on Friday, May 20th, only 24 hours before his scheduled departure to
Iraq for an extended period.

Although I have not seen Mr. Gorini’s videotaped deposition yet, Mr. Dickstein
has informed me that it went well and that Mr. Gorini was very complimentary of
my skills and character. At one point, he apparently said that if there were 12
IRS special agents like Joe Banister in a working group of IRS special agents,
there would be no need for a supervisor. There was other provocative testimony
given by Mr. Gorini, for which I will try to provide more details after I have
viewed the videotaped testimony.

The second event, actually a series of similar events, also occurred in late
April and has continued right up to the present. I received a call from the
guardian of my legal defense fund (LDF) account that someone had apparently
created a phony check with the legal defense fund’s account number on it and
attempted to cash the check. The bank where the LDF account is kept contacted
the LDF guardian and asked the guardian to confirm that the payee on the check
was an authorized payee. The guardian did not recognize the name. The guardian
contacted me and asked me if I had ever heard of the payee and I hadn’t either.
(By the way, there are relatively few recipients of legal defense fund checks
because the funds are disbursed principally for legal fees, shipping fees,
photocopying fees, supplies, and travel). The phony check, written for $3,000,
was not honored by the LDF bank and the funds were taken out of the LDF account
for only a brief period and returned to the LDF account. Once we learned that
the funds were only temporarily depleted and subsequently returned, we breathed
a sigh of relief.

Unfortunately, we later discovered that the $3,000 check was not an isolated
incident. We recently learned that there were two more phony checks – one for
$1,800 and one for $4,500 – that someone attempted to draw from the LDF account
in the same manner as the $3,000 check. Apparently the bank did cash these
checks, which has caused a significant disruption to the LDF’s cash flow. As
with the $3,000 check, the bank has assured the LDF guardian that the $6,300 in
funds will be replaced by the bank since, once again, it was the bank’s fault
for honoring illegitimate checks.

Even though it is a relief to know that the bank bears the risk of loss for
these thefts rather than the LDF, and that all funds will be returned by the
bank to the LDF and it will be up to the bank to recover the funds from the
thief, it is disappointing to think that someone somewhere has lifted the bank
account information from my previous requests for financial assistance and used
such information to create phony checks to facilitate the theft of money from
LDF account. According to the information received from the bank, each check
had a different payee and endorsement, each check had ink stamped language in
the signature block, and the checks were passed in Ohio, New York, and
Washington. Given the diverse geographic locations, this is clearly the work of
a sophisticated ring of thieves. The bank will of course be investigating these
thefts since it is the bank who ultimately bears the risk of loss for phony
checks like these. The harm for the LDF is the temporary, yet severe, cash flow

Another significant event is that over the last few weeks, my legal team has
been busy preparing motions for submission to U.S. District Court Judge Shubb.
It is my understanding my legal team devoted nearly 100 hours to the preparation
of the motions, with Jeff Dickstein’s contribution exceeding 80 hours. Attorney
Robert Barnes and Attorney Robert Bernhoft also provided invaluable input. One
of the motions is a “Motion for Bill of Particulars”, which is a routine motion
filed in cases like these. The other motions elucidate why the indictment (the
document signed by the grand jury foreman that alleged I had committed crimes)
is fatally flawed.

One of the other motions is called a “Motion to Strike Portions of Count I of
the Indictment” and it is supported by a document called “Points and Authorities
In Support of [Banister’s] Motion to Strike Portions of Count I of the
Indictment”. This motion requests an order from Judge Shubb “striking
[removing] paragraphs 4,5,7,8,10-16,19-27, 30, the last sentence of paragraph 6,
the words “to wit: income, social security and Medicare taxes” from paragraph 9,
the words “the income, social security and Medicare” from paragraphs 9a and 9b,
and the word “huge” in paragraph 20 as surplusage and duplicitous of other
charges.” The motion focuses like a laser beam on the actual language used in
the indictment and articulates why the indictment’s language would mislead and
prejudice the jury, and how such language interferes with my right to a clear
and concise statement of the charges against me.

Another one of these motions is called a “Motion to Dismiss the Indictment For
Lack of Sufficiency” and it is supported by a document called “Points and
Authorities In Support of [Banister’s] Motion to Dismiss The Indictment for Lack
of Sufficiency”. As stated in the motion, the sufficiency of an indictment (the
document signed by the grand jury foreman that alleged I had committed crimes)
is measured by whether the indictment (1) contains the necessary elements of the
crime alleged (2) informs the defendants of the crime charged with sufficient
clarity to allow them to adequately defend against the charges and (3) is stated
with sufficient clarity to bar subsequent prosecution for the same offense. The
motion provides ample evidence of the insufficiency of my indictment and I
strongly encourage you to read it.

All of these motions can be read by visiting www.freedomabovefortune.com ,
clicking on “IRS LOCKOUT UPDATE”, and scrolling down to the bottom of the list.
You will need Acrobat Reader or Adobe Acrobat to access the motions on my

These few weeks before the trial and, of course, the trial itself, are extremely
time intensive and expensive. It cost approximately $3,000 just to obtain a
copy of the Al Thompson trial transcript. There have been and will continue to
be significant photocopying expenses. A paralegal will be needed for these last
few weeks before trial and at the trial itself. The Gorini deposition,
absolutely critical to providing proof of my good faith conduct, cost many
thousands of dollars. As stated previously, more and more of Jeff Dickstein and
Bob Bernhoft’s time will be utilized during these last few weeks of trial
preparation and, of course, at the trial itself.

The Bernhoft firm has extended extraordinary billing courtesy to this effort so
far and has even had to advance it’s own funds to cover some of the costs. As
the trial gets closer, my legal team will be working exclusively on my case and
I will need to concentrate all of my time to trial preparation as well. I wince
at the thought of asking people who have already been so generous to help a
little bit more. However, I see no other alternative. If critical bills and
expenses don’t get paid on time, the effort will stall. I have committed myself
to winning this battle not just for me and my family, but for all those who
recognize the negative influence an unaccountable tax enforcement apparatus has
on our American liberty.

Your continuing financial support is critically needed. I continue to receive
support from people all over the country. Many, many of you have donated more
than once and there are a number of people who send small donations weekly or
monthly. I wish that I didn’t have to ask for assistance in this manner but my
persecutors have endless financial resources. We can beat them with a lot less
than they have at their disposal, but funding still forms the critical
foundation for our success. I know you will help as much as you are able. I
pour out my heartfelt thanks to each and every person who has taken the time to
pray for this effort and/or send me cards, notes, and donations in the past.

In the next 7 days, PLEASE set aside whatever you can afford, and please also
speak with friends, neighbors, relatives, and coworkers and ask them to help my
defense effort – financially AND SPIRITUALLY. As always, any efforts you can
make towards being a mini-fundraiser for me will not only be very much
appreciated but it will be CRUCIAL to the success of this defense effort. Don’t
forget to use this effort as a way to educate other Americans that may someday
sit on a jury in a federal income tax case.

For mailed donations, send to Joseph Banister Legal Defense Fund, P.O. Box
90239, San Jose, California 95109-4239.

I have decided to publish on the internet a variation of a letter that I have
distributed locally to my network of friends and acquaintances in my home town
area. It can be found at http://www.ninehundred.net/banister . Please share
this letter with as many people as you can. Please also forward this message to
as many people as you can.
The We The People Foundation for Constitutional Education has published an
article about my circumstances. You can see it by visiting
www.givemeliberty.org and scrolling to the 05-27-05 article.

For those who are able to attend one or more days of the trial, I would
certainly welcome your presence. I request that anyone coming to watch the
trial be calm, reserved, professional, and dressed appropriately, both inside
and outside the courtroom. If I am lucky enough to have a “crowd” of people
outside the courthouse, I request that the “crowd” also be calm, reserved,
professional, and dressed appropriately. My preference would be to have a very
large but quiet and reserved group of people supporting me with no signs, no
yelling, no dirty looks given to government officials and no disrespectful
behavior. I believe a calm, reserved PRESENCE will send the appropriate
message. I will undoubtedly be preoccupied with trial matters during the trial
but I’m sure there will be many people to interact with during each day of the
trial and in the evening. The address for the federal courthouse is 501 I
Street, 14th Floor, Judge Shubb’s Courtroom, Sacramento, California 95814.


-For those who have received this message as a forward from someone else, you
can sign up to receive these messages directly by visiting
www.freedomabovefortune.com and clicking on "Mailing List".

-For those who are unfamiliar with what has transpired to date in this case,
please visit www.freedomabovefortune.com and click on "IRS LOCKOUT UPDATE" or
visit www.joebanister.blogspot.com . You can also find archives of informative
radio shows at www.hearliberty.com .

-My sincere thanks to those who have prayed for the success of our efforts and
contributed to my defense fund. Your continued financial support is enabling me
to illustrate, in detail and in a very public manner, that the IRS does not
prevail against citizens because the agency adheres to the rule of law, but that
the IRS prevails against citizens because the agency ignores the law, twists the
meaning of the law, and overwhelms the citizen with economic and legal burdens.
In a school yard, such tactics are called "BULLYING". In a government setting,
such tactics are called "TYRANNY". This effort is the equivalent of ganging up
on the bully and sending him to reform school where he belongs.


Kind regards,

Joseph R. (Joe) Banister, C.P.A.
Former IRS Criminal Investigation Division Special Agent
www.freedomabovefortune.com www.joebanister.blogspot.com

George Orwell, 1984:

"You are a slow learner, Winston," said O'Brien gently.

"How can I help it?" he blubbered. "How can I help seeing what is in front of my
eyes? Two and two are four."

"Sometimes, Winston. Sometimes they are five. Sometimes they are three.
Sometimes they are all of them at once. You must try harder. It is not easy to
become sane."

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Friday, May 27, 2005


Citizen Banister

As a CPA and former IRS Criminal Investigation Division Agent, Joseph Banister is much more than one of the lead plaintiffs in the Right to Petition lawsuit. He is one of the finest citizens ever to have been raised in America. He is the perfect role model for anyone responsible for teaching others about good citizenship.

Read more here.