THE AGONY, THE ECSTASY, THE AGONY
June 25, 2005
As most Americans who get real news from the Internet by now know that Joseph Banister was acquitted by a jury in Federal District Court on June 23, 2005. The complete unsealed indictment can be read here. It is strongly recommended that you read this document to fully understand the seriousness of a federal indictment.
This is a very abbreviated account of all that happened, including the fascinating go around on Rule 29. It is my hope that enough money can be raised for Joe to purchase the trial transcripts and get them posted to his web site as was done after the Vernie Kuglin case. That way all Americans will be able to read everything that transpired and see for themselves exactly what goes on in a trial of this magnitude. Due to prior commitments, I was unable to be there for every minute of the trial, so part of this narrative was provided by another wonderful, courageous American and former IRS CPA, Sherry Jackson.
On November 17, 2004, Joseph was indicted by a grand jury along with Walter (Al) Thompson, who owned a business in the Redding, California area. The feds have wanted to get Joseph Banister for a long time and they thought by attaching him as a co-conspirator with Al Thompson, they would finally get him.
The joint charges were alleged violation of 18 U.S.C. § 371- Conspiracy; 18 U.S.C. § 287 - False Claims Against United States (Two counts); 26 U.S.C. § 7206(1) - Filing False Tax Returns; 26 U.S.C. § 7206(2) - Aiding and Assisting the Filing of False Tax Returns (Three Counts); 26 U.S.C. § 7202 - Willful Failure to Withhold and Pay Taxes (10 Counts)
Earlier this year Joe's defense team was able to get the two cases severed. Al Thompson wanted a speedy trial, it was granted and he went to trial on January 19, 2005. After years of bludgeoning by the state and federal dragoons, Al was nearly destitute by the time of his trial; he was appointed a federal public defender to assist in his case. I was in the court room part of the time while Al tried to defend himself. It was sad. He was acquitted by his jury of the most serious charge (conspiracy), but convicted on the other charges. Al was eventually sentenced by Judge William Schubb to six years in a federal penitentiary. His wife has divorced him, he lost his business and his freedom. It is my understanding that he has filed an appeal.
On to Joe's trial. June 14, 2005 was jury selection. I was unable to attend that day. According to Sherry Jackson who was there, after the jury was seated, the government began their case with one witness. As it was late in the day, court adjourned following the first prosecution witness.
June 15, 2005, started with the jury viewing a lengthy video of Joe and Al Thompson addressing his employees on October 11, 2000. Shortly after the viewing began, the judge seemed to short circuit, stopped proceedings, ordered the jury removed and stomped out of the court room. It was high drama like I haven't seen in a court room except on Perry Mason! When Judge Schubb returned, it was made known that one of the jurors had fallen asleep, again, and a discussion ensued between him, the defense team and the federal prosecutors as to what should be done. In the end, they all agreed that this juror had to be dismissed and an alternate seated. Once that process was completed, the video was once again running.
On this video Joe spoke about why has taken the path he has, about the future for his sons, that he couldn't tell anyone what to do or not to do, but be prepared for the government to come after you. He repeated several times that he was not out to defraud the government, if he owed a tax he would pay it, the government refused to answer his questions and other very honest commentary. In effect, it was testimony without taking the stand, but no one who watched this video could even remotely believe that Joe had dishonorable intentions about conspiring against the government.
After lunch, the federal prosecutors brought in their witnesses: three former seamstresses for Thompson's now defunct company and the general manager. Under direct, none of these women could remember when they went to work for Thompson (except the year), what their hourly wage was or when they finally left Cen-Cal. The female federal prosecutor finally gave up on these "revenge" witnesses and the defense crossed with basically the same line of questioning. These witnesses were each on the stand for ten, fifteen minutes max and had absolutely nothing to say. They didn't know Joe Banister, the only time they ever met him was once at the aforementioned meeting and none of them could testify they knew that Joe conspired to cheat or defraud the government. The general manager was much more focused than the other women, but she had nothing to say that could substantiate the government's charges.
The final government witness for the day was a woman named Susan Eaton, owner of TaxReps; Eaton is what's called an "enrolled agent" for the IRS. Miss Sunshine (Eaton), who cooed non-stop for the prosecution and jury, owns a company that does payroll and other tax/accounting functions. Until July 2000, when Thompson terminated their business relationship, she had prepared payroll and 941 quarterly payroll returns for Thompson and his company, Cen-Cal. The gist of her testimony is that in January 2001, she filed 941 quarterly payroll returns on behalf of Cen-Cal (Thompson's company) even though she had no authority to do so and no authorization from Al because he had terminated their working contract seven months earlier! Asked by the defense why she took it upon herself to prepare and file these IRS payroll records even though she no longer had any authority from Thompson, she cheerfully replied several times that she knew they had to be prepared and filed, so she did it. Gag factor: ten.
June 16, 2005, I was unable to attend the morning session. The jury was shown the video taped deposition of Joe's former IRS supervisor, Robert Gorini, which was recorded on May 20, 2005. As I was not there for this morning session, the following is a narrative from Sherry Jackson who attended:
"Mr. Gorini studied accounting and got a degree in commerce. He got a job with the IRS as a criminal investigator and special agent right out of the university. With his four year degree in hand in December, 1971. In 1996-97 Gorini and Banister served on the finance committee of their church together. He met Joe at the lobby of the building where IRS and Peat Marwick, Joe's employer, were both housed. They agreed to have lunch on another day together. On that lunch date Joe showed serious interest in becoming a federal officer. Gorini believed that Joe had the potential to be a good IRS special agent. Gorini gave Joe the forms and contact information to apply for a position with the IRS.
"Gorini was a group supervisor with the IRS. A group supervisor supervises 12-14 agents. Gorini group emphasized the work of narcotic traffickers. Joe was originally in a group headed by Bridget Marquetta in the San Francisco office of criminal division (CID) of the IRS. Joe ended up in Gorini’s group after Marquetta was assigned to another position with the IRS, and her group members were put in two other groups, one of which was headed by Gorini.
"Gorini stated that lower level agents are graded 5-12. Employees with grades 5-9 need assistance, 10 some independence, 11-12 more independence and grade 13 should be able to handle any kind of investigations on their own. When Joe was transferred to Gorini’s group he was already a grade 13 agent. Joe lived in San Jose but worked in the San Francisco Office, but another employee of the IRS worked in San Jose, but worked in San Francisco so they switched offices.
"Then exhibit #4 was shown to Gorini which is a September 15, 1998 e-mail from Gorini to Joe. In this e-mail Gorini recommended a performance and special act award be given to Joe. Furthermore, Joe performed above and beyond expectations. Joe was motivated to do his job, accept assignments, worked well with others and got the job done.
"Gorini further testified that to become a grade 13 agent, special agents have to perform well and compete with their colleagues for such a grade. Next, exhibit # 5, which is a form that the IRS used to grade candidates for grade 13. Gorini testified that it was common knowledge that Joe was a good employee. Gorini stated that page 5 of exhibit 5 has a list of criteria for promotion to grade 13, such as application of criminal statutes. Special Agents are given training on criminal tax laws. Most of these criminal tax laws are section 7201 through 7207 as well as section 7212. Gorini stated that agents needed to understand the definition of words such as the term income, and that Joe was very articulate and a good report writer.
"At the end of Joe’s career with the IRS, Joe had questions about the legality of the income tax that he read through. Joe had talks with Gorini about his research on these issues and had asked Gorini if he could research these issues on his own time and expense. He stated that if he could not get them addressed he might not be able to continue at his job with the IRS. Gorini stated that when he had his special agent training, he was taught various things the same as Joe. Gorini was given a copy of the US Constitution, but that the reading and understanding of it was not required. Furthermore, special agents are given minimal legal research training. Instead they usually seek assistance and guidance from legal counsel.
"Gorini considers Joe to be an honorable man. At this time exhibit #10, which is a topical law report from the Commerce Clearing House (CCH) was introduced. Gorini stated that Internal Revenue Manuals are the guides for the special agents which direct them in doing their job.
"Exhibit #11, which is a Friday, June 6, 1998 e-mail was introduced to Gorini. In this e-mail Gorini had stated that Joe had good writing skills and was most professional.
"Exhibit #12, which is a November 10, 1998 letter of DOJ lawyer Thomas DeLeonardo (the same DOJ tax lawyer that testified earlier in this trial about his relationship with Joe). This e-mail was Cc to Gorini as well as to Paul Barville who was the supervisor of the entire CID office of the IRS in San Jose, California. In his e-mail, Mr. DeLeonardo expressed his pleasure to work with Joe and further stated that Joe performed exemplary, enthusiastic and outstanding work.
"Exhibit #13 was a January 13, 1999 e-mail of Gorini to Joe which mentioned that an organized crime enforcement tax force training was going to take place in the near future. At this training about 125 agents were to get the training. The trainer of this class, Alex, had high regard for Joe's work and specifically requested to have Joe's help in teaching this training class.
"Gorini stated that it was common knowledge that Joe did good work.
"Exhibit #14 was a March 20, 1999 evaluation of Joe, which was very complimentary of Joe's work.
"Exhibit 15, was a document that showed Joe and Gorini to be members of the NRA and that both attended city counsel meetings about gun issues.
"Exhibit #16 is a two-page declaration of Gorini dated March 20, 1998 in which he states that he has never known Joe to be dishonest or lie.
"Exhibit #18 is a February 8, 1999 four-page letter from Joe to Gorini which was attached to Joe's report about the federal income tax which was written to the commissioner of Internal Revenue. Gorini was not happy about receiving this letter even though the night before Joe had told Gorini that it would be forthcoming and would be on his chair in the morning.
"At these times Gorini had become a friend of Joe. In addition to working together, they ran together and visited each other's homes. Joe was an excellent worker, nice guy, moral and ethical. Joe took his oath his office as seriously as anyone he has known. Joe asked Gorini to forward his letter and his report to the commissioner of the Internal Revenue. Gorini gave the above documents along with his own cover letter to his supervisor to Paul Varville.
"No one at the IRS answered Joe's questions. IRS counsel advised Gorini to put Joe on administrative leave. Gorini was asked “Do you recall saying that if you had twelve special agents like Joe that they wouldn't need a supervisor.” At first Gorini said “I donut remember saying that.” Dickstein asked ”Is that something you could have said.” Gorini said “ I could have.” Dickstein said “Would you have meant it?” Gorini said “If I said it, I would have meant it.”
"Gorini stated that he had recommended overall performance awards for Joe and he believes Joe is an honest person. Gorini stated that the IRS special agents handbook guides the actions of IRS special agents. He stated that IRS special agents were required to be familiar with it and Joe was familiar with it. When asked what section of the code someone in Joe's position was required to file a tax return, Gorini stated that 30-35 years ago he might have studied the issue, but he certainly doesn't remember it now. Gorini stated that Joe was an honest man.
"Then the government lawyer Twiss asked Gorini “What is your definition of an honest man.” Gorini said “Someone who is honest and moral.” Twiss asked “Would it change your opinion of Joe if you heard that he stopped filing income tax forms?” Gorini said “Other than that he is an honest man.” Twiss asked ”Would it change your opinion of this honest man if he was a CPA and he stopped doing that?” Gorini said “I would have reservations about that.” Dickstein said “Would it change your opinion if you knew he had sent the money in to the IRS to hold?” Gorini said “Yes” It seemed he was surprised to learn Joe had sent in the money. The video finished at 10:40 a.m. and there was a break until 10:55 a.m."
After the break, a collective gasp went up as the defense rested. The jury was excused and then Jeff Dickstein (defense counsel) told the judge that the defense would have put on a case but since the government had not put on one, they rest. There was a lunch break until 1:30; I returned to court for the afternoon session. At that time, discussion began regarding jury instructions. This is when high drama kicked in; the afternoon session was a complete mind blower. The judge began by chewing out the government's toady lawyers. Judge Schubb inquired of the federal prosecutors if their jury instructions were the best they could do in their job, because he didn't think so and could not give them to the jury. I mean he raked these two lawyers over the coals, but not for Joe's benefit. The judge wanted to make sure the government had the best shot at winning.
This went on for a while and then there was a heated exchange between Jeff, the government's inept lawyers and the judge over the law, the use of certain words like 'individual' and so on. The judge again was blowing a circuit, but you could tell he was showing grudging respect for Jeff. What he wanted from those government lawyers was for them to give him something to help get Joe convicted. Of course, that's not what he said. After this wrangling, it was decided there would be a break while Jeff, Bob and the government lawyers went to a conference room to try and hash out the jury instructions. When they returned around 3:30, I had to leave to run an errand for the defense with their legal aide. Between the distance and traffic, by the time we were finished, Connie and I headed for the hotel as court was out for the day.
The jury was sent home until Tuesday, June 21st , however, there was business for the trial on June 20th while the jury was off for the day. I was not at this Monday session, but Sherry Jackson was and her excellent narrative is in this pdf file.
June 21, 2005, began closing arguments with the feds going first, then the defense and at that point, I had to leave for an appointment I couldn't miss. The jury began their deliberations later in the day.
June 22, 2005, the jury deliberated.
The Ecstasy - Part II
© 2005 Devvy Kidd - All Rights Reserved
Devvy Kidd authored the booklets, Why A Bankrupt America and Blind Loyalty, which sold close to 2,000,000 copies. Devvy appears on radio shows all over the country, ran for Congress and is a highly sought after public speaker. Get a free copy of Why A Bankrupt America from El Dorado Gold. Devvy is a contributing writer for www.NewsWithViews.com.
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