Open Murmurs, Government
Retrial: Possible Peaceful Solution to the Brown Dilemma
“Law represents the effort of man to organize society; governments,
the efforts of selfishness to overthrow liberty.”
Henry Ward Beecher
"The right to sue and defend in the courts is the alternative of force.
In an organized society it is the right conservative of all other rights,
and lies at the foundation of orderly government."
Chambers v. Baltimore & Ohio Railroad, 207 U.S. 148
On January 12, Ed Brown of Plainfield, New Hampshire walked out of his federal criminal tax trial protesting what he claimed was the District Court’s unjust deprivation of his Rights to Due Process and a Fair Trial. He retreated to his rural home and publicly announced that he would resort to armed resistance if U.S. officials attempted to intercede or further deprive him his constitutionally protected Rights.
At the heart of Brown’s protest is the Court’s failure, in denying Brown’s substantive and dispositive pre-trial motions, to properly respond to the questions and issues that were presented to the Court in the motions – that is, the Court’s failure to state the facts and the questions being presented by Brown, the law and how the Court was applying the law to answer the questions.
For instance, Brown motioned for a Bill of Particulars asking the Government to more fully explain the Indictment -- twice. He asked many specific questions about the law he was being charged with violating since the indictment merely charged him with violating a "penalty" statute that did not directly impose any legal duty upon him. He cited legal authorities justifying his Right to the information. The Court denied the motion stating in large part that the information contained in the Indictment was sufficient.
In addition, Brown motioned for a dismissal on the basis of a lack of jurisdiction. He cited legal authorities to support his motion for a dismissal of the indictment and the case. The Court denied the motion saying in large part, “The bases of the motion is [sic] unclear.”
All this, coupled with the Court’s instruction to Brown in two pre-trial hearings that he would not be allowed to argue the constitutionality of the income tax in front of the jury (meaning Ed would not be able to show the jury what he read in the tax clauses of the Constitution or in Supreme Court cases regarding those clauses, the definition of the legal term “income”, and the absence of any authority for the government to impose a direct, un-apportioned tax on a person’s labor), together with the Judge’s proposed jury instructions (i.e., “I [the judge] will tell you [the jurors] what the law is and your job is to determine only the facts – that is whether the Browns filed tax returns and paid taxes”) was too much for Ed Brown to accept.
The national interest is not served by the Government’s continued silence to open murmurs. It breeds disaffection to the law and to the Government among a free people.
is a symptom of the larger constitutional crisis this Foundation has been
attempting to resolve: our servant government’s persistent refusal to be held
accountable to the People for its unconstitutional actions, i.e., the refusal by
the Executive, Legislative and Judicial departments to properly respond to a
citizen’s Petition for Redress of constitutional torts.
These are serious matters, indeed. In many respects, they are the very same matters regarding governance and Natural Right that drove our Founders to revolution.
Unless the government can be forced, by some non-violent means (such as the retention of money) to recognize its constitutional obligation to respond to the People’s proper Petitions for Redress of constitutional torts, we can expect to see more people like Ed Brown willing to defend their Rights by violent means. Make no mistake: the government abhors opposition and will not voluntarily abandon its preference to act without accountability or constitutional restraint.
Brown’s case is not so much about tax evasion as it is about the failure of the
government to respond to his Petitions for Redress of Grievances.
Prior to his decision to withdraw his financial support from the Government, Citizen Brown was concerned about the government’s actions at Ruby Ridge and Waco and the fact that no one in government was held accountable for those misdeeds. Citizen Brown was concerned by the fact that the government failed to respond to his petitions for redress regarding the government’s involvement in the flow of illicit drugs into this country through Keesler Air Force Base in Mississippi and through Cape Cod, Massachusetts. Citizen Brown was concerned about the government repeatedly applying the armed forces in hostilities overseas without a declaration of war.
Citizen Brown was concerned about the Government’s refusal to respond to his Petition for Redress related to the absence of a constitutionally required, well-regulated Militia in the State of New Hampshire. Citizen Brown was concerned by the fact that the government was doing whatever it wanted to do, showing less and less respect for the Constitution and its role of protecting, preserving and enhancing the individual Rights of the average, non-aligned citizen-taxpayer. Citizen Brown was concerned about the erosion and loss of his Rights, Freedoms and Liberties.
Neither is the national interest served by a national press that continually
fails to investigate and report openly on the substance of the murmurs of the
people. In doing so, it is failing in its constitutional role as watchdog over
government and as an institutionalized means of protecting Liberty.
It is well past time for the dominant media to ask itself, “Why do so many learned people -- with so much to lose -- (e.g., orthopedic surgeons and medical directors, constitutional attorneys, high-ranking military officers, graduates of our service academies, CPAs, business owners, and even former IRS agents) believe they have no obligation under U.S. law to pay the income tax? What is the substance of their beliefs? What have they learned that would cause them to take this bold stand? Why would these ordinary Americans risk prison just to avoid paying ‘their fair share’?”
And again, very importantly, why is it that the Executive and Judicial departments refuse, at every turn -- even in their legal pleadings and rulings, to cite the specific U.S. statute that requires American citizens to pay taxes on their wages and salaries?
Worse yet, why do the courts refuse to let tax defendants show the jury what they read in Supreme Court decisions regarding, for instance, the meaning of the word “income” within the meaning of the 16th Amendment, or what they read in the internal revenue laws? Why not? After all, the defendants took the action the government finds unacceptable only after reading this material.
These defendants are not attempting to tell the jury what the law is, only what they read. It is their most important if not only evidence they have. To prevent the jury from reading what the defendant read is to prevent the jury from receiving the defendant’s evidence. To prevent the defendant from presenting his evidence to the jury is to deny the defendant his Right to a defense, one of the most fundamental Rights of every American.
The official record of Ed Brown’s prosecution is apparent. In denying virtually every pre-trial motion filed by the Browns, the U.S. District Court has denied Ed Brown and his wife their unalienable Right to enjoy substantive Due Process and a Fair Trial. In its curt and legally deficient dismissal of Brown’s well drafted motions, each of which raised serious and relevant legal and constitutional issues, the Court effectively denied the Browns their Right to Due Process.
Although Ed Brown ultimately refused to continue to participate in a judicial proceeding that he perceived as greatly prejudicial and biased against him as well as constitutionally flawed, once the facts are fully known and understood, his stance in protesting his prosecution will someday and at some level, come to be viewed by posterity as morally justified.
We The People Foundation cannot join in support of Ed Brown’s stated intent to
employ violence in defense of his Rights, the depth and justification of his
personal commitment to the cause of Liberty should not go unnoticed by the
media, the public or the government.
Our nation’s own history, including the first violent confrontation of the Revolutionary War which occurred in Concord Massachusetts, just a few miles away from the federal courthouse in Concord, New Hampshire, ought to be a trenchant reminder to all that the People will not forever be denied their unalienable Rights.
This Foundation is committed to the non-violent enforcement of the Rights of the People, including those articulated in our Founding documents. As such, we have embarked upon a nationwide mission of public education and civic activism to exercise, and peacefully enforce, the First Amendment Right to Petition.
Not so ironically, it is this Right -- the “capstone” Right of Petition -- which, if honored and respected by those in government, is the very check and balance capable of forestalling the very situations such as both Ed Brown and the Government now find themselves. The former committed to Constitutional Order, Liberty and the Rule of Law, the latter to political benefit and expediency, the aggregation of power and the abuse of the limited authority delegated to it by the People. What is axiomatic and self-evident to Brown is that as government gains ground, Liberty loses ground.
These two opposing frameworks of governance and moral principle cannot co-exist. Either Men are Free and Sovereign and can rightfully demand Justice, or they are slaves and chattel to those that claim unbridled power over them.
It is no
secret that our government is out of control. We endure the pains of undeclared
wars and secret systems of surveillance and abbreviated forms of justice to
combat terror. Our nation now suffers from years of unjustified international
meddling and our families suffer from decades of failed attempts at social
engineering and legislating the morals of the People.
A sword of Damocles hangs over our financial system because we have entrusted the creation of our money to a cartel of private bankers who have debased our currency by transforming it to a system of debt based upon the endless creation of credit. We anguish as the ills of our nation continue unabated despite elections and further acts of legislation seeking to reverse the inherent corruption that now controls the political process.
Beyond these Grievances countless Americans just like Ed Brown have found that no matter how substantive or compelling their facts or legal arguments, the courts will no longer provide Redress or Justice against any government act, no matter how vile or violative.
In short, many Americans perceive they are running out of peaceful options in their fight to defend Liberty against a government determined to achieve its own unjustifiable ends.
Unfortunately, Ed Brown is perhaps just the first of many who will ultimately feel driven to use the only practical means at their disposal to defend their Life, Property and Liberty.
urge the U.S District Court, in the interests of Justice and Due Process to
strongly consider setting aside the convictions of Ed and Elaine Brown on the
grounds of the Court’s evident failure to properly decide and explain the
Browns’ pre-trial motions and its prejudicial restrictions on the Browns denying
them the ability to show the jury what they read in the Constitution, Supreme
Court decisions and the internal revenue laws.
A unilateral decision by the District Court to set aside the verdict for retrial would serve not only to preserve the interests of insuring bona fide Justice and Due Process in the instant case, but would ensure the public at large watching the Brown situation that the Court is truly committed to not only the veneer, but the substance of Justice.
indeed unfortunate that Ed Brown felt his only means to protest the Court’s
deprivation of Due Process and protect his remaining Rights was to take the
steps he has taken. Thankfully, up to this point, no one has been physically
If the U.S. District Court is truly committed to Truth, Justice and the propagation of peaceful Liberty as mandated by its Oath of Office and the Constitution, these interests must be weighed in favor of a retrial against the limited personal transgressions that may have been committed by Brown in his arguably justifiable protest of his treatment by the Court.
Compounding the situation further, is the significant likelihood that Ed Brown’s protest in the trial court and his lack of a defense on the record, will serve to practically deny him any chance of a successful appeal.
In the end, it must be remembered that Ed Brown and his wife have committed no overt act that has hurt anyone. They have stolen nothing. They have committed no acts that have injured another person. The money they enjoyed was earned lawfully and there is nothing in the court record suggesting that they did anything illegal, per se, with their money.
The crimes the Browns stand accused of consist of government claims that the Browns failed to give their personal money and the money from their business to the government and that the Browns violated federal law by conducting their personal financial affairs in such a manner as to avoid surveillance by the government.
Their prosecution proceeded unimpeded despite that fact the Court failed in its legal duty to fully justify its reasons in Law for its dismissal of virtually all of Brown’s pre-trial motions and despite the fact that the government, even in Brown’s indictment, disturbingly fails to cite the specific U.S. statute requiring the Browns to file or pay income taxes.
In the immediate interest of the People, the peaceful preservation of Liberty, and in resolving the long-outstanding questions regarding the legal authority for imposing the federal income tax upon ordinary wage-earning Americans, this Foundation urges restraint on behalf of Brown, the Court and the Department of Justice.
further urge the Court to strongly consider the larger context its actions may
ultimately influence as our nation continues to grapple with a Government that
seems resolutely defiant of the limitations placed upon it by the Constitution.
Ed Brown is not perfect and Ed Brown has perhaps not made the best choices possible in defending himself against these charges.
But Ed Brown is one of us -- We the People. We are watching and we will not forget.
History of Events
On January 9, 2007, Ed and Elaine Brown’s tax trial began.
On January 12, 2007, Ed and Elaine Brown made the local news when they stayed at home, rather than return to Court, calling the Court a Kangaroo Court and the trial a sham.
On January 16, 2007, Elaine Brown returned to court, but Ed Brown did not.
On January 17, the government rested its case and Elaine Brown rested her case.
On January 18, 2007, the jury found Ed and Elaine guilty on all counts. Sentencing was scheduled for April. Elaine Brown was ordered not to go home, to stay with relatives in Massachusetts and not to have physical contact with Ed Brown prior to sentencing. A warrant was issued for Ed Brown’s arrest.
national news, vowing to remain in his home and to resist any effort by the
government to arrest him. The Associated Press reported, “He
has holed up with armed supporters in the couple's cement-walled house and has
said he will defend himself against capture if necessary.” The story was
quickly covered by networks and cable TV, radio talk shows, the print media and,
at warp speed, over the Internet.
Last weekend, Bob Schulz traveled to New Hampshire after arranging to meet with Edward Brown. Bob wanted to learn the facts about Ed Brown’s background, the events in the months and years leading up the grand jury investigation of Ed and his wife Elaine, and what had actually taken place between the Browns, the Court and the Department of Justice following the date of the indictments.
Sunday, January 21, Bob spent nine hours in Ed Brown’s home. After interviewing
citizen Brown, Bob was given access to his files, which were in chronological
order. Bob spent nine hours reading: 1) all the documents that are included on
the Court’s official Docket Sheet and available through PACER; 2) the
transcripts of the pre-trial hearings that are listed on the Docket Sheet, but
not available through PACER; 3) correspondence between the Browns and the DOJ,
and between the Browns and the Clerk of the Court that does not appear on the
Docket Sheet; and 4) correspondence between Ed Brown and the IRS prior to the
Grand Jury Investigation.
following are the facts according to Ed Brown and the Court Record.
Statements attributable directly by Brown are in quotations.
1959 (Age 17): Joined the
Navy. Dishonorable Discharge. Assault with a deadly weapon.
Spent Six months in jail. “Promised myself never to break another law.”
1963 (Age 21): Married
1965 (Age 23): Governor’s Full Pardon
1967 (Age 25): Divorced from first wife
1967-1979 (Age 25-37): “A job a month”
1971 (Age 29): Married second wife
1979 (Age 37): School for cosmetology.
1979 (Age 37): Divorced from second wife
1979-1984 (Age 37-42): “Homeless”
1984 (Age 42): Exterminator. “Credited with completely eliminating termites and roaches at the Long Beach Navy Yard”
1985-1993 (Age 43-51): Exterminator doing business in New Hampshire
1991 (Age 49): Married Elaine
1992-1993 (Age 50-51): “I was deeply disturbed over Waco. I was paranoid for one year. I read a lot. I learned about the illuminati and the new world order. I determined there was a criminal element within the Administration, the Executive Branch.”
1994 (Age 52): “I formed the Un-American Activities Investigations Commission. We petitioned the FBI for redress of certain criminal acts by people in the administration, including the flow of drugs from South America into America through Keesler Air Force Base. The FBI did not respond. We also petitioned the State Police in Massachusetts regarding the flow of drugs into America through Cape Cod. The State Police did not respond.”
1996 (Age 54): Stopped filing tax returns.
2000 ( Age 58): “I received a commission from the United States Continental Congress Constitution Rangers of 1776 whose mission is ‘To protect and serve the Constitutional Republic of the several states and the People thereof under the Creator.’ The Constitution Rangers was founded in 1980 by Lawrence ‘Pappy’ Robertson, Jr., now living in Phoenix, Arizona. I became the national leader of the Constitution Rangers in 2003.”
2006 (Age 64): “Two months before my indictment and arrest, I received a copy of an FBI report on me. The report gave me a clean bill of health.”
(Age 64-65): “Michael Avery from
Outlaw Legal Services out of Florida has served as my paralegal,
helping me with the preparation of all pre-trial motions.”
Click here for the official Court Docket, which lists all documents filed with the Court in USA v. Brown, et al., Case No 06-00071, United States District Court, District of New Hampshire.
also prepared a
spreadsheet analysis that lists (by Docket number and date) the
35 substantive legal motions filed by the Browns in the case and the single
legally substantive motion filed by the Government. It shows the government’s
response (if any) for each of the Brown motions, and the date and short summary
(or link to) the Court’s Order, if any, regarding each motion.
Links to copies of the Motions, Responses and court Orders are provided.
The Court denied the government’s single substantive motion. It also issued Orders denying (in whole or part) 29 of the 35 substantive motions filed by the Browns. The full text of most of the Court’s Orders are included as entries within the Court Docket itself and are labeled “Endorsed Order.” Where the Court’s Order was a separate document, WTP provides a link to the Order on the spreadsheet analysis. For most of Brown's motions, the court gave little or no explanation for its rulings.
On three occasions, the DOJ invited the Browns to meet with the Grand Jury that was investigating the Browns. The Browns refused the offers on the ground that the DOJ will control the process to the point of unfairness. The Browns provided the DOJ with certain conditions that would have to be met before the Browns would agree to appear before the Grand Jury. The DOJ did not agree with those conditions. The Browns did not appear before the Grand Jury.
There were two pre-trial hearings. The transcripts are listed on the Docket (Numbers 57 and 88). The transcripts are not available through PACER. Ed Brown had copies of the transcripts at his home. Bob Schulz read the two transcripts. During each pre-trial hearing the Judge instructed the Browns that they would not be allowed to present evidence or argue the constitutionality of the income tax.
no jury instructions from the Court in the Docket. Nor did Bob Schulz come
across a copy of any jury instructions from the Court in Ed Brown’s files. The
Docket does include two proposed jury instructions from the Government.
According to Ed Brown, on Thursday, January 11, just before deciding not to
return to the Courthouse, he was shown a copy of the instructions the Judge
intended to give to the jury. According to Ed Brown, while the jury instructions
did not contain an explicit exhortation to find the Browns guilty, the
instructions were clearly intended to “persuade” the jury to find the Browns
without attorneys, the Brown’s pre-trial
motions were exceptionally well drafted and presented significant
questions of law to the Court, questions that should have been addressed by the
Court but, in most cases, were not.
Unless a motion was totally frivolous, (Note: the Court never used that word and there is no indication of frivolity in the Record) the Court in the interest of fairness and justice, should have issued Motion Decisions that stated the facts, the arguments by both sides for and against the motion, the applicable law and an explanation of how the Court applied the law to the facts. The Court failed to do this, but should have, even if the trial had to be delayed. After all, the Browns had formally waived their Right to a speedy trial.
government failed to respond to 15 of Brown’s legally substantive
The Government did file responses to 19 of Brown’s substantive motions. Under the Court’s own Rules the Browns had 10 days to file a reply to each of the Government’s responses to each of Browns’ dispositive motions, and 10 days to file for permission to file a reply to each of the Government’s responses to each of Browns’ non-dispositive motions.
in almost every instance, the Court violated its own rules and Brown's Due
Process Rights by deciding Brown's motions without giving Brown an opportunity
to reply to the Government's response.
In 15 of the 19 instances where the Government did file a response to a motion by Brown, the Court issued an order deciding Browns’ motion on either the same day as the Government filed its response or on the day immediately following. Of the 15 rushed Orders pertaining to Brown’s motions, 13 were denied while only 2 were granted (and those granted merely pertained to rules of discovery).
Clearly, the Court gave the Browns’ motions short shrift.
The questions that were properly presented to the Court, and which the Court did not answer, are questions that continue to pervade the entire Patriot and Tax Honesty movements.
Court’s defense, the Court denied the Government’s motion in limine (Docket
#99), which motion sought a court order that would have prevented the Browns
from arguing and presenting any evidence in support of their “tax theories.”
However, the Court’s order, in effect, directed the Government to raise any
objections during the trial, at which time the Court would decide whether to
allow the argument and evidence. If past experience in federal criminal tax
trials is any indicator (Simkanin, Schiff, etc.), DOJ would repeatedly object
and the Court would routinely sustain all the objections, essentially depriving
the Browns their Right to a defense.
Click here for the Ed Brown trial BLOG website
Access all the Brown’s pre-trial motions