You'll notice that the name of this organization is Freedom Above Fortune, not Freedom Without Fortune or
Freedom Instead of Fortune. Rather, Freedom Above Fortune is an organization dedicated to the concept that
no amount of real or perceived economic prosperity or fortune is worth trading for your freedom. This is not
to say that pursuing economic prosperity, in and of itself, is bad. Rather, it is to say that those who are
willing to sell their freedom and their children's freedom for a few pieces of silver, as Judas did when he
betrayed Jesus Christ, are shortsighted and foolish. If you are willing to sell your freedom for short term
financial security, real or perceived, the willingness to sell your very soul can't be far behind.
Freedom Above Fortune was founded by Joseph R. (Joe) Banister, a former IRS Criminal Investigation Division
Special Agent who learned of serious constitutional questions relating to the federal income tax and the federal
banking and monetary systems. Mr. Banister's expertise in the fields of accounting, finance, taxation, and law
enforcement enabled him to not only understand these issues but realize that he could play a role in bringing
the issues into the public arena for analysis and debate.
From : Freedom Above Fortune Reply-To : Joe Banister Sent : Saturday, June 18, 2005 12:25 PM To : List Subject : Banister Trial Day 2
Freedom Above Fortune News
My apologies for the informal nature of the text below but it is the only narrative of the trial proceedings that I have access to at this time and I wanted to share some kind of news with you.
Thank you for your continuing support.
MEDIA RELEASE: Joseph Banister Trial Day 2, Wednesday June 15, 2005
Subject: Joseph Banister Trial Day 2, Wednesday June 15, 2005
*Joseph Banister Trial Day 2, Wednesday June 15, 2005*
Today the trial started at 10:30am because the judge had something else to do earlier. We resumed the video where Joe and Al Thompson were talking to Al's workers in the fall of 2002. Some of the things that Joe said at the beginning of the playing of the videotape today were:
- The 1999 1040 Instruction Booklet states mentions nothing but foreign income in the income section and one additional section.
It mentioned nothing about domestic income.
- Joe again stated that he was not there to tell people what to think or do.
At 10:40am the judge stopped the video very upset and had the jury dismissed right when Joe was explaining that the 1040 instructions refer to foreign source income. Originally we did not know why the judge stopped the trial, but we soon found out that Mr. Parker, the same juror that went to sleep twice yesterday during the video, had fallen asleep again. We were only ten minutes into the start of the trial! The judge called Mr. Parker in and asked him the problem. He said he was having trouble staying awake. Mr. Parker was dismissed as a juror and now we are down to one alternate. The alternate that replaced Mr. Parker, in our opinion, is better than Mr. Parker would have been. The video was restarted and Joe, in the video, proceeded to go through his exhibits. One of his exhibits shown to the workers at CenCal was:
- Title 26 CFR parallel authority refers to Title 27, which is ATF, which are enforceable taxes not like the income tax.
Joe stated that he is doing nothing more than showing this information. Joe, in the video stated that Mr. Thompson takes care of everything himself ? all of the research. Joe said that he went to Washington DC to get the government to answer questions and all he got is "The legality of the income tax is not a high priority at the White House." Joe said, in the video, "When I leave this earth I want to make sure that I did right by my children. I empathize with you in your concern about retribution from not withholding, and I know that you may be feeling turmoil. But I am experiencing turmoil in my life also. I gave up an $80,000 job to do what was right.
The money that you earn is yours and until the government makes a law, then it is yours. I don't believe it is Al's fault or your fault but it is the government's fault. The government is out of control and they don't care how hard you work ? I care and Al cares. At the end of the video Al Thompson opened it up for questions from his workers. Joe said "I am not saying don't pay taxes ? no one is stopping you from filing. There were some workers on the video (heard and not seen) that were scared and asked questions about getting in trouble. Someone asked about how many people have gotten in trouble about taxes. Joe mentioned Bill Benson and the fact that he was not prosecuted for the years that he found the 16th Amendment information, but was prosecuted for earlier years, and that Bill has not been filing since then and has not been prosecuted again.
Joe told them both sides of the situation ? that even though the people are correct the government still goes against people. David Cay Johnston from the New York Times was at this meeting. He had heard about Al, called and flown out to California to be at this videoed meeting (some conspiracy!) David Cay Johnston asked several questions about all of the people and the church that has gotten in trouble about income taxes. Joe and Al explained that most of the people that have lost to the government had used flawed case law and or flawed legal arguments. Al also mentioned that those court cases do not carry the force of law ? that only the actual language of the law and Supreme Court cases have the force of law. Joe stated that the people have to choose for themselves what they would do with their money. They would have to choose to file or not.
Joe said the government is powerful but we have rights. He said if we want a free country we must stand for our rights. The jury was escorted out and Bob Bernhoft stated that there is no conspiracy like the government claims, and that the government has not shown any evidence conspiracy. The government said that Joe conspired because when Al, on the video, said that Joe would be there to help anyone that got in trouble that Joe would be there to help them-and Joe did not disagree with that. The judge chimed in and said that the government need not prove that the speech was the conspiracy but that the speech can show part of the conspiracy. The judge cited Section 801(d)(2)(e) of Federal Rules of Evidence (which is an exception to the hearsay rule), to admit and use this statement of Al against Joe. The judge says that the purpose of the meeting was to have Joe tell the workers not to file (WOW). Judge said the government could use anything in furtherance of conspiracy. In essence the Judge denied Bernhoft's motion to dismiss the conspiracy charge. Next, the witnesses came in.
We had six witnesses today. The first four were seamstresses for CenCal. The fifth witness was the general manager at CenCal, and the last witness was the owner of the payroll company that prepared CenCal's payroll tax returns until Al stopped withholding from the pay of his employees. The first four witnesses testified that Joe was at the meeting but they were scared and wanted Al to continue withholding. They all told how long they worked at Al's company and their hourly wage. These witnesses were a waste of time because they said nothing bad about Joe.
Only the first witness, Trudy Baker, said she did not pay attention to anything Joe said in that meeting. The second witness, Dorothy Baker ? not related to Trudy, did not have much to say besides the fact that she wanted taxes taken out of her check. The third and fourth witnesses, Maureen Snyder and Jill French, were just like the second one. The fifth witness, the general manager, told the jury that Al said, "you can have all of your money and you can do with it what you want". The sixth witness, Susan Eaton, owner of TaxReps, Inc Payroll Company, stated the following:
- She has a partner and three employees - She did payroll for Al from 1996 through July 2000 - She is not a CPA and does not have a college degree - She is an enrolled agent and her father taught her everything she knows - Her father was a public accountant ? not a CPA - She worked for her father for nine years
When Jeff asked her had she ever read the code she said no. When Jeff asked her did she know what Subtitle A and Subtitle C were the government objected and the judge asked Jeff what is Subtitle C. Jeff told the judge that Subtitle C is employment tax and then Susan Eaton admitted that she had not read Subtitle C. She stated that she is not familiar with all of the subtitles but she knows that all of the tax law was on the test she took to become an enrolled agent. When Jeff asked her how she knows all the tax law was on the test if she had not read the code the government objected and the judge sustained the objection, so she did not have to answer. This woman filed the employment tax returns for Al's company, and completed W-2's for his workers AFTER her contract with Al was terminated!
She told Jeff that she filed these and knew that it was Al's responsibility but filed them on his behalf anyway because "she knows that the forms had to be filed." Every time Jeff asked this woman about her knowledge of the law the judge did not allow her to answer. The government told the judge that they would be done by noon tomorrow because they just have two more witnesses to call. The judge decided in the afternoon the defense could watch the video deposition of Joe's former supervisor at the IRS. Then on Friday the witnesses for the defense will be called. The estimate is that by close of day Monday and no later than Tuesday the case will go to the jury.
Joseph Banister Trial Day 3, Thursday June 16, 2005
The day started out with the government’s 7th witness – Thomas DiLeonardo who is currently an assistant US attorney in New Jersey. During the fall of 1997 he was a trial attorney and worked with Joe on a fraudulent tax return case. The defendant in that case owned three gas stations/convenient stores and was accused of underreporting income. This witness stated the following: • Joe was a competent Special Agent who did exemplary and superior work. • During the investigation of the above mentioned case Joe did not ask him questions about the 16th amendment, 861 or any issues about the legality of the Federal Income Tax • He, Thomas DiLeonardo, did receive Joe’s report on the Federal Income Tax, but he thought it was just the same old tax protestor arguments that the courts years have ruled against. for the last 10 or 15 Years. • Before doing the Amended returns that Joe did for Al Thompson, Joe knew how to do the regular/traditional kind of return that most people do.
When Joe’s attorney, Jeff Dickstein, cross-examined Thomas DiLeonardo, he admitted that: • Joe knows what is fraudulent and willfulness. • In spring of 2000 Joe tried to contact and meet with Thomas DiLeonardo, but he was out of town (DC) • On April 9, 2001 in Washington, D.C., Thomas DiLeonardo saw Joe marching around the IRS building and had a conversation with him trying to find out what these people were doing. He admitted that Joe asked him to address the demonstrators, but he declined. • Thomas DiLeonardo never studied Subchapter N of the IRS Code and does not know what it covers. • DiLeonardo came to California in April 2001, and had a conversation with Joe. Joe told him why he resigned from the IRS, and asked him to help get some answers by arranging meetings with DiLeonardo’s superiors, to discuss his questions about the legality of the Federal Income Tax. • Mr. DiLeonardo agreed and sent an e-mail to three individuals. The first one was Ron Semino, who was the Chief of the Western Division of the U.S. Department of Justice’s Tax Division. The second and third one’s were Melissa Shriebman and another DOJ Tax Division lawyer who were involved with tax protest issues and have handled a lot of tax protest kind of arguments. • Jeff asked “Are you still friends with Joe?” Special Agent – Shawn Breslin responded “I have no reason not to.” Obviously these Special Agents and DOJ lawyer who worked with Joe still had high regard for Joe and were not willing to lie to hang their old friend. When DiLeonardo said that Joe’s arguments were frivolous Dickstein responded “Frivolous? Doesn’t frivolous mean without case law to back it up?” and DiLeonardo replied yes. Then Jeff said, “frivolous, isn’t that what the government calls things that they don’t want to answer/understand”. However the government objected and the judge sustained.
Then when Jeff started asking this witness about the tax law and regarding the 16th amendment the judge objected on his own! The judge said that he would not let the jury decide whether the 16th amendment was ratified or not. This witness was dismissed and they gave the jury a 10-minute break while they all decided whether to let Al’s California Franchise Tax Board tax returns into evidence. The judge said it was not relevant.
Witness number 8 was an IRS Special Agent – Shawn Breslin, CPA. He had been a special agent since 1991 and he started investigating Al Thompson in September of 2000. There were some exhibits that the government had where calculations were made on what Al supposedly owed. These exhibits had “for criminal purpose” on them and Jeff objected so that government had to do all the exhibits over again. While the special agent testified the jury got corrected copies of these schedules. When the government asked the special agent questions he testified to the dollar amounts.
On cross examination Jeff asked him over and over and over whether anyone impeded, impaired, obstructed or defeated the IRS from calculating, assessing or collecting the tax on Cen Cal (Thompson or his company or employees) and he said no every time. Jeff asked whether Joe impeded, impaired, obstructed or defeated the IRS from calculating, assessing or collecting the same alleged taxes and he said no. The Special Agent – Shawn Breslin noted that he has been with the IRS for 13 years but does not know the civil side of the IRS.
He Special Agent – Shawn Breslin did not know whether Al Thompson’s 1040’s had been audited. Jeff asked if Joe Banister had an obligation to file the 941’s for Al’s company and he said no. Jeff said, “It’s Al’s responsibility not Joe’s, not the employees and not Al Thompson’s payroll tax preparer Susan Special Agent – Shawn Breslin answered: yes, it’s Al’s responsibility. In response to Jeff’s question. This ended Government’s case against Joe and concluded the prosecutions’ presentation to the Jury.
The jury was dismissed for the day and told to come back Friday at 9am. There was a break from 11:40 to 2:30 because the judge had another brief matter to handle. Then at 2:30 the sparks started flying.
Joe’s lawyers made a motion to dismiss the charges against Joe under Rule 29 of the Federal Rules of Criminal Procedure, which REQUIRES a dismissal of the charges, if the Government fails to produce ANY evidence in the trial that could possibly show guilt of the defendant. Jeff cited on point U.S. Supreme Court U.S. v. Galletti, 541 U.S. 114, 121 (2004), Caldwell case (from the 9th Circuit Federal Court of Appeal) to show that Joe’s speech does not and cannot constitute conspiracy and that there was A COMPLETE ABSENCE OF PROOF by the Government. The judge asked the government to rebut that, and they did a poor job, since they did not have a case in the first place. The judge did not want to dismiss the case.
Jeff stated again that the government did not prove an underlying tax liability. The judge asked the government why they did not better prepare the IRS Special Agent when being asked about conspiracy to impair, impede, obstruct or defeat the IRS. The judge agreed that none of the government’s witnesses proved willfulness or conspiracy. The judge continued to argue with Jeff about it. Jeff told the judge that Rule 29 requires the judge to dismiss the charges because of lack of ANY proof.
Judge did not want to dismiss the case, because if he did so, the U.S. Government could not reverse his decision by going to the 9th Circuit Federal Court of Appeal. But if he ruled against Joe, then he could get the judge reversed by the 9th Circuit. Jeff reminded the judge that the law REQUIRES dismissal when the Government fails to provide ANY proof. The judge stated that he felt that Rule 29 is not fair to the Government and that there is some talk in the Congress to change Rule 29, so that the Government could appeal the dismissal of their case.
Jeff reminded the judge that AT THIS TIME and until Congress changes the law, the judge must dismiss the charges! However, Judge Schubb did not want to embarrass his fellow government officials, who had successfully got a Federal Grand Jury to indict a ham sandwich (Indicted Joe) and wanted to convict the ham sandwich of the non-existent crimes (Joe’s alleged conspiracy and false statements.) The judge argued a fair amount about this with Jeff and eventually made the political decision of going against the plain language of the law and against the evidence in the case by refusing to dismiss any of the charges.
Next, both sides took out portions of the Deposition (under oath videotaped and transcribed testimony) of Joe’ boss at the IRS, Mr. Gordini. The government wanted 7 items extracted and the judge let them extract 6.5. The defense wanted 1 item extracted and the judge let them extract it. It was a very insignificant item. Joe’s lawyers are having the video edited for the jury’s view in the morning..
Judge Schubb, attempted to prop up the government’s case by letting all of the charges hang in there, for now, when the government did not provide any proof of the charges, but by letting them all go by the defense will be able to present all the evidence they want to bring in. With the conspiracy charge intact, Joe will be able to fully explain his story before, during and after his career with the IRS for the jury to see and evaluate for themselves. So all in all we believe the trial is going over well for Joe, as expected.
Friday the Video of Mr. Gordini and 2 of Joe’s witnesses and then Joe will testify later on Friday or on Monday. We expect the trial to be over around the middle of next week.
At the end of the day upon coming out of the courtroom, Joe motioned for about 15 of us to come together in a huddle. We could see he was filled with emotion and did not know what to expect. About 30 feet away was his Mother, Aunt, his wife and youngest son. He quietly told us of his burden of the difficulty all this has been on his wife and sons. He asked us not to respond to his wife in any way because for now it would not be good. She would only receive it in a negative way. Special prayers need to be offered up for his wife and sons. The oldest is 17 and would not come. We all hurt for them and realize how serious this is and how great a sacrifice has been made by this family. We appreciate so much what Joe is doing for all of us and this is something we can do for him.
Yours in truth, freedom and justice, Sherry,Ken, Ross, Peymon and Harry
This report was prepared by Joseph R. Banister, who graduated in 1986 from San Jose State University with a
Bachelor's Degree in Accounting. He spent three years at KPMG Peat Marwick on their professional staff as a
senior tax specialist and staff auditor. He then spent nearly two years in the venture capital industry during
which time he became a licensed Certified Public Accountant (CPA) in the State of California. Mr. Banister left
public practice as a CPA in 1993 when he accepted appointment as a Special Agent (criminal investigator) in the
Department of the Treasury, IRS Criminal Investigation Division (IRS-CID). Unable to resolve conflicts between
the way the IRS administered the Federal Income Tax and Mr. Banister's oath of office, he resigned from IRS-CID
on February 25, 1999.