Irwin's Motion to Accept

On or about April 1st, I received a Ruling from the 9th Circuit stating that it had decided to "decline to entertain [my Supplemental] appeal briefs" and cited as support for its action, Jones v Barnes. I have posted below my response to that Ruling, in which I moved the Court to accept my appeal briefs. Incredibly, as noted in my response, Jones v Barnes "supports the acceptance of [my] briefs, not their rejection." Obviously, the Court does not want to deal with the issues contained in my appeal briefs. We will see what happens.

The filing is headed with the customary stylized reference material; US v Schiff Nos 06-10145, 06-10199 and 06-10201, and D.C. No CR-04-00119-KJD. As in the case of the main Supplementary Appeal, cosmetic improvements have been made.

Motion to Accept Schiff's Appeal Briefs

Schiff herein appeals the Court's order of 3/23/07 in which the Court ruled that it "declines to entertain [Schiff's supplemental appeal] briefs." This motion is to move this Honorable Court to accept Schiff's appeal briefs as his opening brief (though mislabelled by him as a supplemental brief) and subsequently followed by a supplemental brief as a result of his having received portions of the trial transcript.

Legal Argument

In notifying Schiff that the Court "declines to entertain [his] briefs," the Court cited Jones v Barnes, 463 US 745 as supporting its decision. However, Schiff would respectfully point out to the Court that this decision supports the acceptance of Schiff's briefs, not their rejection.

In Jones, the defendant was represented by attorney Michael Melinger who filed his own appeal brief on behalf of defendant David Barnes. However, the following was stated on page 748:

In addition, Melinger submitted respondent's own pro se brief. Thereafter, respondent filed two more pro se briefs, raising three more of the seven issues Melinger has identified. At oral argument, Melinger argued the three points presented in his own brief, but not the arguments presented in the pro se briefs.

Therefore (and overlooking other issues presented in Jones but not raised here), in Jones the Second Circuit accepted three pro se appeal briefs from Defendant David Barnes, even though his attorney filed his own appeal brief. The only difference between Jones and the instant case is that Schiff mailed his appeals directly to the Court, instead of having it done by his lawyer. Such a technicality should not prevent the significant issues raised in Schiff's appeal from being brought to the attention of this Court - since most of those issues could not be raised by his attorney, as the following will show.

In addition, Schiff's appeals were not submitted as if he were acting pro se, as in the case of Barnes; Schiff submitted them pro persona. Therefore, unlike Barnes, Schiff did not claim to be representing himself in this appeal (since he had an attorney), but was submitting these appeals "in his own person," indicating that his attorney had nothing to do with the issues being raised. [1] Therefore, if the Second Circuit could accept three pro se appeal briefs in addition to the appeal brief filed by the defendant's attorney (and apparently with the blessing of the Supreme Court) the equal protection clause in the Constitution would indicate that the Ninth Circuit should accept Schiff's two briefs filed pro persona in addition to the appeal brief filed by his attorney.

In addition, Schiff was compelled to present his appeal for several reasons not present in the Jones case. Schiff had already been advised by lawyers, the Government, and the Court itself, that legal arguments he knew were valid could not be raised by lawyers in his defense, without their risking sanctions and various other forms of punishment. For example, on trial transcript page 5007 (attached hereto as Exhibit A) Ms Noel Spaid Esq, a tax attorney Schiff had hoped to call as a factual witness (but who was only allowed to testify as a character witness) was cross-examined by the Government as follows: "Ms Spaid, you're familiar with Mr Schiff's position with regard to the tax laws?" Answer: "Yes, I am." "And as an attorney, you also know that you cannot advocate those positions to a court?" Answer: "That's correct." "And that's because they are deemed frivolous or meritless by the court?" Answer: "That is because the Federal Judiciary cannot find those positions to be accurate." Therefore Ms Spaid wouldn't concede that Schiff's positions were "frivolous" or "meritless", but she did concede that she could not "advocate these positions to a court."

On page 86 of the second Faretta Hearing with respect to appointing counsel for Schiff (attached as Exhibit B) the Government reminds the court that "the rules of the State Bar [would preclude appointed counsel] from asking all of the questions that Mr Schiff might want him to ask." It is clear from Mr Ignall's continuing remarks that he wants Schiff to understand that if he accepts appointed counsel, he might not be allowed to extract the kinds of information from witnesses that he might want extracted and the court acknowledges that "ethical considerations would preclude Leventhal [potential appointed counsel] from asking certain questions."

When attorney Michael Stein appealed the District Court's grant of a preliminary injunction to this very Court (379 F 3d 621 (9th)) he informed Schiff that he would not be able to argue the merits of Schiff's beliefs, since he would be sanctioned by the 9th Circuit for doing so and would lose credibility with the Court. Had Schiff insisted that he argue the merits of Schiff's beliefs and why those beliefs did not advocate tax evasion (as the Government insisted they did), he would have refused to handle Schiff's appeal. Mr Stein persuaded Schiff that he should be able to get the preliminary injunction vacated without having to argue the merits of Schiff's beliefs. [2]

In addition, it must be emphasized that the issue in Jones was not whether Jones had a right to submit his own pro se briefs in addition to the appeal brief filed by his lawyer, but whether Jones' lawyer had to raise every colorable claim demanded by Jones in the brief he filed. Obviously that is not the issue here. The issue here is whether Schiff has the right to raise his own issues on appeal briefs filed by himself, and it is clear that Jones held that he does - which is also the view inherent in every decision cited in Jones. For example Jones states, in pertinent part, on page 750:

The Court of Appeals went on to hold that "having demonstrated that appointed counsel failed to argue colorable claims at his request..." Melinger... failed to press at least two nonfrivolous claims... that fact that those issues had been raised in respondent's own pro se briefs is no substitute for the advocacy of experienced counsel. [Emphasis added.]

Therefore, it would appear that Barnes' filing of his own appeal, in addition to the appeal filed by his attorney, had the blessing of both the Appeals Court and the Supreme Court. Therefore Jones cannot be used by this Court as a basis for its "declining" to accept Schiff's appeal briefs or relating to the "responsibility" of his attorney "to decide which issues will be raised in [Schiff's] appeal," since neither issue was addressed in Jones, nor is there anything in Jones that would preclude this Court from accepting the appeal briefs at issue.

All of the issues raised by Mr Nash involved the alleged violations of Schiff's right to due process of law and his right to a fair trial free of judicial bias, and along these lines Mr Nash did an excellent job in raising and arguing these issues, which should result in a reversal of Schiff's conviction. However there were numerous misstatements of law committed by the trial judge that should also result in a reversal of Schiff's conviction, and Schiff should not have to forego an appeal on the latter issues, merely because his attorney focused on the former issues - especially since Schiff has shown in this pleading how attorneys are prohibited from raising certain issues contained in Schiff's appeals.

As a tax expert, Schiff cannot allow the many misstatements of law committed by the trial judge (and clearly and irrefutably identified in his appeal) to stand, unidentified and unrefuted. Schiff, at age 79, is facing a life sentence, and he obviously has the right to bring to the Court's attention all of the violations of law that produced his conviction, and that right does not extend solely to his lawyer, as all of the cases referenced in Jones agree.

Conclusion

Based on all of the above, this Honorable Court should reverse its ruling of March 23 2007 and accept for consideration Schiff's supplemental briefs, since Schiff suggests that its failure to do so would violate Schiff's Sixth Amendment rights and his right to equal protection under the law.

Dated April 4th 2007

Respectfully submitted
[Signed] Irwin A Schiff

Footnotes

1. Since he was not acting as his own attorney, he labelled his opening brief "Supplemental", meaning it would be supplemental to his attorney's opening brief, since he did not know what else to name it. He did not believe he could call it his "opening brief" since that is what his attorney was filing. In addition, the instant Order states "the court rarely allows supplemental briefs." For reasons contained herein, defendant respectfully suggests that the briefs at issue should qualify as constituting those "rare" supplemental briefs that are accepted by the Court. Return

2. The fact that Mr Stein was right (but unavailing) was confirmed in an article that appeared in the January, 2006 Law Review of the Seton Hall Law School; which concluded, among other things, that in sustaining the injunction barring Schiff from selling his book "The Federal Mafia," "the Ninth Circuit denied Sciff his freedom of speech guaranteed under the First Amendment" (page 551) and that "'The Federal Mafia' so convincingly criticizes the practices of the government of the United States, that the government has regulated Schiff's book under the guise of protecting the public from deceptive commercial speech, rather than providing Schiff's speech with the full First Amendment protection it deserves." (Page 589.) Return