A petition for rehearing/rehearing en banc was filed on Wednesday, November 23, 2011.  This blog post summarizes the 5 arguments set forth in the petition.  Perhaps more significantly, attached to the petition is a motion, for the consideration of the full court, claiming the right to file a separate brief, free from the active, malicious interference of Stilley’s adversary the US Department of Justice, through their subsidiary the Federal Bureau of Prisons (BOP).

Pursuant to rule the panel opinion must be attached to any petition for rehearing requesting en banc (full court) consideration.  Stilley’s petition, panel order, & motion may be accessed HERE… Stilley Petition and Lindsey Springer’s petition may accessed HERE… Springer Petition 

On October 26, 2011, a panel of the 10th Circuit Court of Appeals entered an unsigned, unpublished, per curiam opinion affirming the convictions of Lindsey Springer and Oscar Stilley.  Oral argument was denied, even as the panel repeatedly pleaded confusion as to the nature of arguments presented.

Stilley’s PETITION [make this a link] for rehearing and rehearing en banc (by the full court), adopting Springer’s PETITION [make link] was filed November 23, 2011.  Tenth Clerk’s office personnel have been universally professional and pleasant, taking my calls and answering my questions, in stark contrast to the government lawyers who won’t take my calls.

The reader is encouraged to read both petitions.  This blog post summarizes the 5 points relied in Stilley’s request for rehearing, plus the motion attached thereto as an exhibit, as follows.

1)  There was no proof of venue, (a constitutional requirement) as to Stilley.  The government on appeal didn’t even claim any facts supporting venue AS TO STILLEY, although it did make an argument (mostly specious) in opposition to Springer’s venue argument.  Lack of venue on STILLEY was thus tacitly conceded.  In fact, Special Agent (SA) Brian Shern testified that they had looked at tax evasion against Stilley for his own taxes, but they didn’t have venue for that charge. 

The panel set forth no facts arguable sufficient to sustain venue against Stilley with respect to SPRINGER’S taxes.

2)  The “defraud clause” of 18 USC 371 is necessarily a misdemeanor, since the underlying offense is by definition a common law crime, and “defrauding” was not a felony at the common law.

A conspiracy under 18 USC 371 is by the terms of the statute a felony only if the underlying offense, that the defendant (allegedly) agreed to commit, is also a felony.  Otherwise a conspiracy is a misdemeanor only.

The government begs the question, saying that the underlying “defraud” offense is a felony, but not explaining why.  The panel cited US v. Gallup (not cited in any party’s briefs) in support of its conclusion that the underlying offense is a felony.

The Gallup opinion claimed that count 1 of Gallup’s indictment charged a “substantive offense” and vigorously argued the point.  Then it said that the same count 1 of Gallup’s indictment charged a conspiracy, which is of course not a “substantive” offense.  Thus the Gallup opinion is necessarily either 1) contradictory, or 2) proof of multiplicity as to Gallup’s count 1 (charging two offenses in a single count) which is in and of itself reversible error.  The Gallup court then stated that count 1 was a felony because the conspiracy wasn’t predicated on a misdemeanor statutory violation, of which Gallup was also charged.

Thus Gallup at most stands for the proposition that a “defraud clause” charge MIGHT be a felony, and also might be a misdemeanor.   Judge Stephen P. Friot refused to make the specific findings as to the scope of the unlawful agreement, as required by the 10th Circuit case US v. Dazey.

“Defrauding” was not a felony at the common law.  I simply ask the panel and the full court to answer the following question.  What does this court rely upon for its contention that Congress 1) impliedly approved a federal common law crime (in saner times described by a federal judge as “a beastie that cannot exist,”) and 2) made that crime a felony, again without any words on paper, or proof that such was the intent of Congress?  

Remember, if Congress actually prohibited an act or omission, and designated the crime as a felony, by definition it would be a statutory crime, not a common law crime.  A conspiracy to commit one or more of some 5,000 statutory crimes now enshrined in the US Code is not cognizable as a crime under the “defraud” clause.  Those conspiracies are cognizable ONLY under the other prong of 371, as a conspiracy to violate a law. 

The panel had no adequate basis to PRESUME that an act that violates no written federal law is nevertheless NECESSARILY a felony.

3)   Under the Paperwork Reduction Act, (PRA) the only person required to make a tax return is a person “liable” for a tax. 

The panel order uses the plural possessive in reference to “defendants’ obligation to file a tax return.”  Pinning the obligation for Springer’s tax return upon Stilley individually was indispensable to sustaining Stilley’s conviction. 

However, the US Supreme Court cases of US v. Cheek and US v. Bryan say that a person cannot be criminally punished for a tax offense unless the person was aware of the specific provision of law allegedly violated.  This of course is an impossibility where the alleged offense was a common law crime, as previously discussed.  No one can be aware of a specific provision of law which, pursuant to the government’s theory of the case, necessarily doesn’t exist.

Furthermore, the PRA notices applicable to the years of indictment say that a “return or statement” is required “for any tax you are liable for.”  However, the government doesn’t allege that Stilley was liable for Springer’s taxes, or that he could have filed tax returns for or on behalf of Springer.

Thus the question to the panel and the full court.  How can the panel affirm a conviction of STILLEY for the failure to provide a return or statement which is unquestionably NOT REQUIRED, by the plain language of the PRA notice in the relevant instruction booklets?

4)   Internal Revenue Districts, and District Directors no longer exist, thus undermining both the civil and criminal underpinnings of this criminal prosecution.  The panel claimed the argument was frivolous, but refused to analyze the question from the perspective of Stilley. 

The panel relied on a Tenth Circuit case, US v. Ford, in which a pro se, nonlawyer litigant raised issues concerning the definition of certain terms, in his challenge to an IRS summons.  The statutes in this case are old, and have been litigated many times.  Nothing in Ford suggests that he was raising the issues briefed by Springer and adopted by Stilley.

Yet the panel’s own words destroy their position with respect to Stilley.  The panel acknowledges that Internal Revenue Districts, and District Directors, no longer exist.  Federal statutes say that returns should be provided to a district director.  The panel attempts to evade the law by saying that the returns should be filed with the “local Internal Revenue Service office.”  This is as close as the panel gets to addressing Springer’s venue claim.

The panel leaves the reader hanging as to what constitutes the “local Internal Revenue Service office” with respect to Stilley. Answering this question would require the panel to either 1) explain how an IRS office in Oklahoma is the “local” IRS office with respect to Stilley, or 2) explain how venue lies against Stilley for not filing SPRINGER’S tax return at an Arkansas IRS office, despite the government’s spontaneous admission that venue doesn’t exist with respect to any charge concerning STILLEY’S federal income taxes.

The panel simply disregarded the question of how the IRS has authority to investigate or prosecute a criminal case, without any statutorily authorized officer.  The panel simply has no answer to that question, consistent with their predetermined decision to affirm. 

5)   Nothing Stilley did or failed to do, relevant to this case, involved a federal matter; the Rule of Lenity requires reversal. 

In April of 2011, the Sixth Circuit reversed a conviction in a case entitled US v. Ford, on grounds that his non-disclosures were not matters of federal jurisdiction, and also under the Rule of Lenity.  The Rule of Lenity provides that persons must not be criminally punished unless the public was clearly placed on notice that the relevant acts or omissions violate criminal statues.  

In District Court Stilley filed a motion for new trial or judgment as a matter of law, alleging and proving by statements under oath, that his acts and omissions were required by the ethical rules for Arkansas lawyers, as well as criminal and civil laws.  Nothing that Stilley did or failed to do involved matters of federal jurisdiction. 
Judge Friot struck the motion and brief sua sponte (on his own motion) and refused to rule upon it.  The panel didn’t even acknowledge the existence of the argument.  Stilley paid money from his lawyer trust fund (IOLTA) to the persons entitled to it, promptly and on demand.  Failure to do that would have been a disbarrable lawyer’s ethical breach, a crime, and a civil tort. 

This is habitual misconduct both as to Friot and the 10th Circuit.  If they don’t have a good answer on a legal argument that would force them to rule against their wishes, they evade ruling on the argument.  A classic example is US v. Farr, in which Friot complained about having to be “pulling the case out of the ditch for the government.”   Friot refused to rule on a motion for judgment as a matter of law, simply because Farr was unquestionably entitled to it.  This was a flagrant violation of judicial ethics, yet the 10th Circuit supported Friot in this nefarious enterprise, in two separate appeals.

Denials of rehearing en banc often simply say words to the effect that “no judge in active service has voted for rehearing or asked for a vote.”   Therefore, request was made that each judge vote for rehearing, ask for a count of the vote, and otherwise exert his or her full legal authority in support of correcting the identified errors.  “Abstention” is not a legitimate option.  Failure to vote for rehearing is tantamount to committing the denials of due process that resulted in the affirmance of the convictions.  Each judge is individually responsible for his or her own vote.


A motion was attached to the petition as an exhibit, asking for time to exhaust administrative remedies and any legal appeal of an adverse decision, with respect to Stilley’s claim of the right of reasonable access to the courts.

The BOP has interfered with Stilley’s use of his own materials to prepare a competent pro se brief – a plain violation of US Supreme court precedent.  Indeed, the adoption of Springer’s brief was made without benefit of the record on appeal, the tax regulations in effect at the times relevant to this criminal case, and other critical legal authorities.  Yet this adoption — a legal right under the rules — has been construed as Stilley’s separate brief, despite forceful objection.

When forced to admit the existence of pleas to the court to prohibit the interference with Stilley’s right to access to the courts, the 10th Circuit judges directed Stilley to exhaust the administrative remedies of the BOP.  The BOP has done nothing but stonewall, such that the administrative process isn’t concluded well over a year later.  Thus far, the process to which the 10th Circuit has relegated Stilley appears to be nothing more than a wild goose chase.

The result in this appeal was a travesty of justice, the process a farce.  Whether the petition for rehearing will bring a different result remains to be seen.  Nevertheless, the right to be heard — to set forth a subset of the reasons that the panel opinion constitutes utter lawlessness — is of inestimable value.  To all who assisted in any way, I am forever grateful, and offer heartfelt thanks.

 Stilley Petition-WORD

Springer Petition-WORD