U.S. Ninth Circuit - The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog

Irwin Schiff, Notable Anti-Tax Advocate, Turned Away by 9th Cir.

Irwin Schiff is famous in certain circles -- so much so, that he has his own Wikipedia page. Schiff has been in and out of prison for much of his life due to his leadership in the tax protester movement, with convictions and protests spanning multiple decades. He's also written a number of books on the subject, each advocating ways (legal and illegal) to avoid paying income taxes.

In 2005, Schiff and two associates were convicted of tax evasion and other false filing and conspiracy charges. Yesterday, the Ninth Circuit, in a brief, unpublished memorandum, declined to come to the rescue, despite Schiff's claims of ineffective assistance of his appellate counsel.

Strickland Standard

To prevail under Strickland v. Washington's test, Schiff would have to show that "his counsel was objectively unreasonable," which, in the appellate context, translates to "his counsel unreasonably failed to discover nonfrivolous issues and to file a merits brief raising them," or "failed to raise a particular claim" in the merits brief. Schiff would also have to show that the errors prejudiced him, meaning there is "a reasonable probability that, but for [the] failure ... he would have prevailed on his appeal."

Any Nonfrivilous Issues?

Interestingly enough, Schiff's co-defendant, Lawrence Cohen, was granted a new trial in 2007 after he successfully argued that his counsel was ineffective for failing to present evidence of mental illness. Similarly, Schiff argues that his counsel should have presented evidence of his own bipolar disorder.

The problem is: Schiff is too smart.

The applicable defense to tax evasion charges, from Cheek v. United States, is the "innocent mistakes caused by the complexity of the Internal Revenue Code" argument. Cohen, apparently, was not very bright.

Schiff, on the other hand, had a mountain of evidence against him regarding his intelligence, including multiple books and well-developed theories (theories rejected universally by the courts) on why the income tax is illegal. Plus, he had been convicted for similar activities. Multiple times. As had his clients, whose tax returns (prepared by Schiff) had been returned and who were penalized by the IRS and the courts.

In short, even if his counsel failed to appeal the exclusion of the bipolar evidence, Schiff can't prove prejudice, as there was way too much evidence of his intelligence to prove an "innocent mistakes" defense.

The Ninth Circuit also rejected ineffective assistance claims stemming from failure to appeal the exclusion of books, videos, and other evidence of Schiff's theories, as the materials contained misstatements of the law and would have confused the jury.

Barely Related Fun Fact

Schiff's son Peter successfully predicted the housing bubble before it happened. Now, Peter Schiff claims that the United States will suffer from massive inflation and devaluation of our currency. He recommends investing in gold, despite the precious metal's 21 percent year-to-date decline, reports Bloomberg.

When will the collapse supposedly happen? By the time President Barack Obama leaves office in 2017, of course.

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