Sneaking Suspicions
 
Archives-- July 6-12, 2003

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This page includes posts from July 6-12, 2003 in the usual reverse order. Each posting on the home page is perma-linked to these archive pages.

July 12, 2003
Lunch with Sgt. Stryker

Now that he mentions it, Sgt. Stryker did seem a little nervous at first.

I thought Paul Palubicki calmed down pretty quickly, however, when we met a few weeks ago for lunch.

It was a fine meal, at Where Pigs Fly, a popular BBQ emporium featuring pulled pork and pulled chicken.

Until we talked about it, I'd just assumed the restaurant's name had something to do with the place's emphasis on pork and chicken. Paul set me straight, by explaining what he learned in his first duty assignment at Dover AFB-- the original owner was a retired Air Force guy, and "Pigs" is a common AF reference to the giant C-5A airplanes that are based here.

The Sergeant is a very nice, witty guy, who clearly loves his country, his work, and especially his family. It showed in the stories he told and in the tone of his voice as he proudly talked about his wife and boy.

We had a great conversation about all kinds of stuff, including a funny riff or two about our acronym-filled lives. On several occasions we both had to take short diversions from our tales for translation purposes.

I'm glad we had the chance to meet, and look forward to the next time he's back here for another assignment.

There's a crab shack we're supposed to go to for our next lunch.

July 11, 2003
Serious arguments are taken seriously by the courts. Non-serious arguments are not.

It’s possible that Robert W. Fitzsimmons is a newcomer to the tax protester movement.

It’s also possible that he is a long-time tax protester.

Either way, he’s now a tax protester who’s lost his property.

Fitzsimmons owned a property in New Castle County, Delaware. For reasons not explained by the Delaware Supreme Court in its order this week, Fitzsimmons didn’t pay the county and school property taxes on the parcel and its improvements from 1998 through 2002, leading to a total tax deficiency of about $3,000 for the five years.

(County and school property taxes in Delaware are low compared to a lot of places, so I’ll just wait a second here for readers from high-tax jurisdictions to catch their breath.)

In September 2002 the county filed court papers and obtained a tax judgment for these past due obligations. As part of its collection efforts, the county then scheduled the property for a sheriff’s sale in December, 2002.

That’s when things became interesting:

On the morning of the sheriff’s sale, Fitzsimmons handed to the County attorney a number of documents that purportedly assigned to the County an interest in U.C.C. [Uniform Commercial Code] financing statements in the amount of the tax obligation. The County attorney informed Fitzsimmons that the purported assignment did not satisfy his tax obligation and declined to stay the scheduled sheriff’s sale. The sale proceeded and the property was sold to the highest bidder for $10,000.

Undaunted, Fitzsimmons then tried to have the sale set aside, but the Superior Court denied his claims after a hearing.

On appeal, Fitzsimmons repeated his contention about the validity of the U.C.C. assignments. He also claimed that the tax obligation to the County was unenforceable.

His final argument was a humdinger:

[I]t was impossible for him to discharge his debt to the County through the payment of federal reserve notes (that is, currency).

Perhaps to Fitzsimmons’ surprise, the state Supreme Court did not take these arguments seriously:

A defendant in a tax monition action may avoid a sheriff’s sale of his property only upon a showing that “the judgment for the taxes . . . is paid” within 20 days after the posting of the monition. Fitzsimmons has failed to articulate any reasonable basis for his claims that the documents he provided to the County attorney on the morning of the sheriff’s sale served as payment of his tax obligation, that his tax obligation to the County is unenforceable, or that federal reserve notes are not a valid means to pay his tax obligation. [note omitted].

The Court then quickly affirmed the Superior Court judgment refusing to set aside the sheriff’s sale.

Readers familiar with the tax protester movement will recognize these claims. Here are two sites that describe the primary arguments Fitzsimmons made here, along with a host of similarly bogus contentions.

It’s a shame that some folks fall victim to the blandishments of tax protester scam artists, who prey on the resentments of the gullible.

On the other hand, there’s a wealth of information readily available to people that could help keep them from screwing up their lives and finances by falling for these incredible claims.

It’s a truism that no amount of fact will dislodge a strongly held opinion. As cases like this one show, however, tax protesters can be dislodged from their properties despite their opinions, if they make the mistake of relying on them.

July 11, 2003
Maybe we live just a little too far north

It's surprising how much a pair of quote marks can set you off.

This morning's Wilmington, Delaware News-Journal ran this headline about the appearance of the musical group BeauSoleil at the Rockwood Ice Cream Festival tomorrow:

'Cajun' music will resound at Rockwood Mansion Park

Now, I really enjoy Cajun music, and this is a great Cajun band. We have one of their CDs, L'Amour du La Folie. Michael Doucet and his fellow musicians do well by doing good, in helping to preserve a wonderful American musical tradition.

For those interested in hearing old Cajun recordings, I recommend the Smithsonian's 6-CD collection of American Folk Music. Side 2-A is very, very Cajun, and very, very good.

I also recommend Columbia's compilation, Cajun Vol. 1 Abbeville Breakdown 1929-1939, some of which also appears in the Smithsonian set.

Considering how long Cajun music has been around, and its influence on several other musical genres, I just have one question:

What's with the quote marks?

Just suppose the headline ran these examples:

'Jazz' music will resound at Rockwood Mansion Park

'Big-Band' music will resound at Rockwood Mansion Park

Oh well. Perhaps the headline writer has simply been deprived of any contact with the Cajun heritage.

That'd be a shame, if true.

In any event, the folks that go to the Ice Cream Festival are in for a treat, well beyond the cold stuff they may have thought was the main attraction.

July 10, 2003
A bureaucratic legend comes back to life?

It looks like there might be some truth behind some old stories after all.

And in some cases, it might be a good thing.

There are several legends about J. Edgar Hoover, the long-time Director of the Federal Bureau of Investigation. Some stories, such as his alleged keen sense of fashion in women's clothing, were far more colorful than other tales, and not too credible at that.

Among certain types of bureaucrats, however, another legendary trait was far more impressive—Hoover’s alleged penchant for imposing disciplinary transfers on FBI agents who fell out of favor with the Boss.

The shorthand version usually ran along the lines of “He keeps that up, he’s looking to be transferred to Butte, Montana.”

I do not know if the stories about Hoover and FBI agents banished to Big Sky Country are accurate.

I do know that’s the first thing I thought of when I read this headline in today's Washington Post:

FBI Chief Transfers Supervisor He Rebuked

Larry Margasak of the Associated Press reported that Robert Mueller reassigned Robert J. Jordan from a headquarters position in the Office of Professional Responsibility to become the special agent in charge of the Portland, Oregon FBI office.

Margasak wrote that the FBI gave no reason for the transfer, but also noted the following:

Mueller rebuked Jordan in late March for inappropriate conduct toward John E. Roberts, a subordinate in the Office of Professional Responsibility who had criticized the FBI on national television.

The director took further action in May, ordering a review of the office that investigates employee wrongdoing and administers discipline. Roberts contended the office had dual disciplinary systems for supervisors and field agents, an accusation Jordan denied.

The reporter duly noted the complimentary statements about Jordan expressed in the FBI press release:

Mueller said in the transfer announcement that Jordan "re-engineered the office and greatly streamlined the disciplinary process within the FBI."

On the other hand, the story also included these bits of personnel history:

Jordan later passed over Roberts for promotion, an action that Justice Department Inspector General Glenn A. Fine said left the impression of retaliation. Jordan also failed to respond appropriately to disparaging e-mails about Roberts from other FBI officials, the IG found.

Mueller sent Jordan a letter of criticism, rejected a proposed bonus and ordered him to receive counseling on the appropriate response to whistle-blowers.

J. Edgar Hoover’s been dead for years, of course, but management practices in many bureaucracies often outlive their creators.

In any event, I’m sure that Butte, Montana and Portland, Oregon are both fine cities, with much to offer.

In addition to the admirable qualities most people would agree these two cities possess, the two municipalities may also provide an opportunity to renew one’s commitment to one’s work, far from the distractions and conflicts endemic to the headquarters of a major government agency.

Very far, in fact.

July 9, 2003
This thud’s for you

On a chilly evening in early April 2000, DC police officer Oscar Mouton received a radio call about a boy’s stolen bicycle.

Using the information he obtained, Mouton stopped Jermaine Powell on T Street NW, sitting on a bike and wearing a canvas coat and baseball cap. The officer placed a hand on the bike and started asking Powell questions.

Powell took off running, however, leaving Moulton with the bike.

As Powell ran down a well-lit alley, he began leaving other items behind, notably his coat and cap, along with something else:

Mouton said that he heard a "thud" when the jacket hit the brick alley, and that when he reached the jacket he saw a gun handle protruding from its pocket.

Mouton stopped, stood by the gun and jacket, and called for assistance. Eventually other officers arrived, and Powell was captured shortly thereafter.

As it turned out, the bike Powell sat on wasn’t the stolen bike after all. Nonetheless, Powell was charged with weapons possession offenses, based on his status as a previously convicted felon.

The defense raised an intriguing argument:

The defense's theory was that Powell ran from the officer because he was afraid he had unwittingly been given a stolen bike, and that Mouton- seeking to be a "hero to a little kid," … planted the jacket, cap, and gun.

In addition, on appeal the defense argued about the “thud” testimony that caused Mouton to stop and see the gun protruding from the abandoned jacket.

Y’see, Mouton hadn’t mentioned the “thud” noise in his original police reports or at the preliminary hearing. The defense argued that Mouton essentially bolstered his testimony with something less than the truth.

In response, the government produced a transcript of Mouton’s grand jury testimony, where he did talk about the “thud” of the gun hitting the ground.

Over defense objections, Mouton was permitted to read his prior consistent statement, as well as explain the omission:

On further redirect, Mouton testified that he had not described the thud in his police reports because "[w]hen you try to document the word thud, it doesn't sound very professional."

Well, no, but mentioning it would have had the benefit of making the police reports a bit more accurate.

In any event, the defense made the arguments it could about Mouton’s credibility in light of this omission, but it didn’t help. Powell was convicted and appealed on this issue.

The appellate court noted that under these circumstances, admitting the grand jury testimony might have been an error, but it was harmless.

First, the rest of the government’s prosecution evidence was strong enough to convict Powell, without the sound effects.

Second, the defense’s planted evidence argument just didn’t hold up:

The theory… required the jury to believe that Mouton was carrying an extra jacket and gun around with him, waiting for the appearance of a coatless suspect upon whom they might be foisted….Lacking much in the way of evidence, Powell's counsel argued that Mouton had a motive to plant the weapon: he wanted to "be a hero" to the little boy whose bike was taken. …What was missing, however, was a connection between the asserted motive and the planting of the gun. There was, after all, no dispute that Mouton thought that he had found, and that he would be able to return, the boy's stolen bike-certainly sufficient to make him a hero in the boy's eyes.

Finally, the grand jury “thud” testimony was only cumulative of the prior evidence Mouton had already given the jury, and essentially caused no real harm to Powell’s already meager defense.

With the denial of this appeal, therefore, the next sound Powell may hear could be the clank of a cell door.

It's not a thud, but it'll do.

July 8, 2003
Ghostlight

I joined about 40 other folks to watch Ghostlight at this week's Tuesday night screening by the Rehoboth Film Society. (Here's the link to the film's website.)

It is a very well-done character study of Martha Graham, one of the leading dancers and choreographers of the 20th Century.

It just so happens that I have next to no interest in modern dance. After watching this movie, I continue to doubt that I will search under sofa seats for ticket money for the next modern dance recital any time soon.

Even so, this was a fascinating film, because the writers, producers, and director Christopher Hermann created a compelling portrait of a true genius.

The primary plot line involves a former Graham student (Ann Magnuson) returning to lower Manhattan to shoot a film documentary about Graham's preparations for a new ballet.

It might be Graham's last show. The aging dancer and her staff are struggling with the high costs of maintaining her school, finding sponsors for her performances, and paying her dancers.

Nonetheless, Graham perseveres with her efforts, as a self-described "acrobat of God."

Performance artist Richard Move plays Graham without a hint of camp, and is utterly convincing. The dancers in the film are apparently all students of Graham's school, and successfully re-create the process of rehearsing for a completely new dance.

Deborah Harry, Mark Morris, and Halston, in cameo roles as themselves, help flesh out the film's depiction of Graham's influence among the New York social set.

If the Rehoboth Film group's reaction tonight was any indication, I fully expect this movie to be among those shown at this fall's festival.

July 8, 2003
Fifth Amendment Rule Number One is, it’s okay to look out for Number One

I handled about a couple thousand cases as an occasional prosecutor, back when Wilmington had its Municipal Court. It wasn’t my normal job--just something that some of the Law Department Civil Division assistant city solicitors occasionally did when the regular prosecutors were out sick or on vacation.

Shortly after beginning this extra duty assignment, I quickly learned that scheduling the 30 to 40 trials listed for each morning’s session followed a particular hierarchy, depending on who was defending against the criminal charges.

If the public defenders had any of the cases, the substitute prosecutors were told to make sure the P.D.’s cases went first. This reflected the course of day-to-day wheeling and dealing between the two regular sets of attorneys. We were told not to mess with that arrangement.

Next were the cases where private counsel were involved. This understanding not only helped these attorneys with their busy schedules elsewhere, but also helped preserve the City's options for later dealings with these same attorneys in other cases.

The next group of cases to go to trial or plea bargain involved un-represented defendants facing the usual misdemeanor or traffic charges. As these folks watched the trials and bargains close out ahead of them, their keen interest in a full hearing of their defense sometimes melted away, leading to acceptance of a previously offered plea bargain. At other times they came to understand why they should have obtained an attorney, and they might possibly ask for a continuance to go find one.

We tried to be accommodating.

The cross-complainants were the last bunch to go to trial, no matter where they were on the calendar. These were the folks who had sworn out warrants against each other for such crimes as disorderly conduct or offensive touching. Their trials went last because they were often the most fractious, along the memorable lines of “Well, Sharnell, see, she was runnin’ on my man, so I had to cut her.”

In addition, the men and women who filed these cross-charges needed to be told of the risks of self-incrimination, and given a chance to think about it. The prosecutors would tell the defendants that they could take the stand, but that anything they said could be used against them on the charge brought by the other side. The judges would also tell them the same thing.

In response to this advice, we would sometimes hear the magic incantations of the Fifth Amendment from both sides, and the charges would be dropped. Sometimes only one side would take the Fifth, however, while the other side would triumphantly take the stand.

The folks who testified were usually surprised at the results.

Today’s Sixth Circuit decision about the privilege against self-incrimination reminds us who are the intended beneficiaries of the Fifth Amendment:

Rule Number One is, it’s okay to look out for Number One.

A jury convicted Demico Boothe of criminal charges relating to counterfeit currency. Among other appeal issues, Demico argued that the trial court unfairly and unduly influenced a co-defendant, Calvin Boothe, into asserting his Fifth Amendment rights.

It is safe to assume that Calvin’s decision to decline to testify did not help Demico’s defense.

The two men’s trials had been severed, and Calvin took a plea. He hadn’t been sentenced yet when Demico’s case came up for trial. Demico’s attorney said she wanted Calvin to take the stand, but Calvin’s attorney told the court that she was concerned about the risks to Calvin if he talked, especially if he perjured himself to help Demico out of his jam.

Faced with this situation, the trial judge sent the jury out and spoke to Calvin:

The district court explained to Calvin that Demico's attorney would ask Calvin about what happened and that Calvin had a right to refuse to testify on the grounds that his statement might incriminate him. The court repeatedly stressed to Calvin that he did not have to testify and that his testimony was "not in [his] interest." Calvin finally agreed to talk to his lawyer again, and when he retook the stand, he refused to testify, stating, " I can't risk my points being taken from me" (referring to the district court's warning that his own sentencing could be affected by acceptance of responsibility or obstruction of justice adjustments if the court perceived that he had lied on the stand to protect Demico).

The Circuit Court noted that a prior Circuit decision held that badgering a witness into taking the Fifth could potentially violate a defendant’s due process rights. Nonetheless, the appellate panel simply disagreed with the defense appeal that the District Court judge went that far in this case:

The district court here was concerned that Calvin would incriminate himself and therefore was thorough in her warnings. We do not believe those warnings rose to the level of badgering that [the prior case] forbids.

Even more important than the judge's thoroughness in warning about self-incrimination was the fact that Calvin pled guilty but hadn’t been sentenced. He therefore risked more jail time on the guilty plea, if he then perjured himself for the sake of Demico. Under these circumstances,

[W]e agree with the United States that Calvin had a right to plead the Fifth Amendment with regard to the risk of enhancement of his sentence.

I have often read that the Bill of Rights protects individuals and not groups. This case certainly makes that point, and in fairly blunt terms at that.

July 7, 2003
Fireworks experiment

Last night Rehoboth Beach set off its official fireworks for the July 4 holiday, from a barge anchored just offshore of the beach and boardwalk.

We reached our viewing spot on the sand in the late twilight, well before umpteen thousand others, and in time to see the fireworks barge and the tugboat that brought it there:

Left to right: fireworks barge, tugboat, and patrol boat.

At about 9:15 p.m. or so, the fireworks began, and it was a great show.

I would like to make available a short videoclip of the fun. It's a large file (>3.6 MB, Quicktime format), and I'm not at all sure how to provide a link to it.

If any readers can suggest how to set up a hyperlink to a .mov file in FrontPage 5.0, I'd really appreciate it.

I'm stumped.

July 7, 2003
Traffic report

July 6 marked the 18-month anniversary of this site. As of that date, 128,644 visitors have viewed 165,445 pages.

Thanks very much for your patronage. Stop by again soon.

July 6, 2003
New Protocol--finish the 18th hole, hand in your scorecard, and turn in your driver to the equipment trailer

Looks like things are getting a little testy out there on the PGA Tour.

Tiger Woods recently alleged that somebody else on the Tour is using a driver that doesn’t conform to technical rules designed to limit the “spring-like effect” of crushing a golf ball against a thin face of titanium at well over 100 mph.

As Dave Anderson writes in today’s NYT, the Tour is now considering changes in its procedures to provide for equipment checks at each Tour stop, so that the players can voluntarily prove that their drivers remain within the official performance limits:

Woods is wrong in putting so many other long-hitting pros under suspicion, but he is correct in putting this unidentified pro, who he believes is getting extra distance off the tee with an illegal driver, on notice as a suspected cheater — the worst insult in golf.

Although testing next year will be voluntary, it will also be on demand. With a portable testing device at every PGA Tour event, Woods or any other pro can request the rules officials to test the driver of a certain player, or the drivers of several players. Even if the driver proves legal, it could provoke some angry rivalries.

I watched some of the Western Open coverage yesterday on ABC, and the network ran a very good segment on this issue.

I preferred Curtis Strange’s suggestion over Tiger Woods’ recommendation for mandatory driver testing before each round. Strange said the Tour should follow the NASCAR example, in which the vehicles are checked not only before the race, but also immediately thereafter.

As racing fans know, there can be some ugly consequences if a car or truck is found to be out of compliance.

The same post-event testing model is also used in horse racing, where again there’s a premium on maintaining the integrity of the sport for the sake of its long-term success.

In all three situations, the risk is the same. There’s a lot of money at stake, and unfortunately some folks will try less-than-legal means to enhance their chances to obtain some of that cash.

The point of post-event testing is also the same—the honor of the sport is more important than any of its participants, and anyone who would besmirch that honor has no place in it.

And there’s no time like right after the event to frighten some folks into remembering that fact.

*And no, I won’t apologize for the pun in the first sentence.


   

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Fritz Schranck
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