Tax activist wishes he had avoided prison

Brown cited his video, 'Theft by Deception'
By Peter Jamison
Concord Monitor
Apr. 27, 2007

Like Plainfield's Ed and Elaine Brown, Pennsylvania resident Larken Rose believed so strongly he wasn't required to pay income taxes that he was willing to battle the federal government in court.

Unlike the Browns, Rose - who in January finished serving his prison sentence for failing to file tax returns - no longer thinks the battle was worth it.

In a telephone interview last week from his home in Hollywood, Pa., Rose - an outspoken IRS critic whose video Theft by Deception was presented by Elaine Brown as evidence during her trial - said he hasn't renounced his theories on the income tax and would still have spoken out about those views. But if he had it to do over again, Rose said, he would not have put his ideas into practice.

He said the disruption to his family's life caused by his prosecution, conviction and prison term was simply too great. "I probably would have filed incorrect returns, pretending my income was taxable even though I know it's not," Rose said. "For the exact same reason that if I lived in a city where the Mafia came by and smashed people's kneecaps, I'd give them money because I like my kneecaps. That's despicable, but in this country, that's the only way to stay out of trouble."

A jury convicted the Browns on Jan. 18 on charges springing from their decision not to pay federal taxes on about $1.9 million in income since 1996. They are scheduled to be sentenced tomorrow. In a memorandum filed Saturday, government prosecutors suggest prison terms of between four and six years. The Browns have argued throughout and after their trial that there is no law requiring American citizens to pay federal income taxes.

Ed Brown has stayed holed up in his Plainfield home since he quit attending the couple's trial Jan. 12. Elaine Brown, who had been ordered after her conviction to remain with a son in Worcester, Mass., broke her bail conditions when she rejoined her husband in February at their house. Arrest warrants have been issued for both.

U.S. Marshal Stephen Monier, who has repeatedly said he doesn't want to force a violent confrontation with the Browns, was out of the office last week and could not be reached. However, an official in the marshals' office said federal authorities "still have open lines of communication" with the Browns.

It is unclear whether the Browns intend to come to their sentencing hearing. On April 4, the Browns filed a demand for free transcripts of their trial before the hearing date. Reached by telephone at his home last week, Ed Brown declined to comment on the couple's plans.

"We're not talking to anybody," Brown said. "The news doesn't exist. The government doesn't exist. All of you don't exist."

Rose, who stood trial on considerably less serious charges than the Browns - willfully failing to file tax returns is a misdemeanor, while Ed and Elaine Brown have been convicted on felony charges - said he sympathized with the Browns' decision to have no truck with the legal system.

"I obviously didn't go the route Mr. Brown went, but I can certainly understand why he has no faith in the system granting justice, because it didn't in my case," Rose said.

Rose was disillusioned after seeing a jury of his peers so ready to believe the arguments of government prosecutors, he said. "Basically, I regret having put my freedom in the hands of the American public because they're utterly clueless and not deserving of the freedom they still have," Rose said.

Rose's own argument is that tax laws don't define the income of American citizens working within the United States as taxable.

But Rose said he was prevented from presenting his views as evidence in court. As a result, he said, the jury only heard the government's side of the story before sentencing him to 15 months in prison. (Rose said he was in prison for just over a year before his release.)

The complaint echoes many voiced by Ed and Elaine Brown, who have said that they weren't allowed to give a full account of their anti-tax views in Judge Steven McAuliffe's court and that the judge misdirected jury members when he told them that the constitutionality of the IRS code was not on trial.

Yet outside legal observers have stated that McAuliffe gave the Browns unusual leeway in explaining their belief that there is no law making them liable for income taxes. For example, McAuliffe rejected the argument of U.S. prosecutors that the couple shouldn't be allowed to present their theories at all, since they might confuse the jury.

"I think the judge went considerably farther than he had to," said Michael Mello, a criminal justice professor at Vermont Law School who has followed the Brown case. "I don't think he was required to let in any evidence about why they believed they weren't required to pay their taxes. That's not something that the government had to prove as an intent element."

According to McAuliffe's jury instructions in the case, the argument that the Browns honestly misunderstood federal tax laws would have been a valid defense. That they understood what the law required but chose not to comply - for whatever reason - was not, the instructions said.

Part of the government's case against the Browns was to show that IRS officials repeatedly warned the couple that their reading of the law was incorrect. "It's really a matter of notice," Mello said. "Once you're on actual notice that your legalistic contentions lack merit, you can't continue to stand on them. I mean, you can, of course, but when you do, you have to pay a penalty."

Mello, a former public defender in capital murder trials, said criminal defense strategies often founder on a defendant's sincere belief that a law is unjust or does not apply in certain cases.

He cited the beliefs of one of his own former clients - a Florida anti-abortion activist named Paul Hill, who was tried, sentenced and eventually executed for his 1994 killing of a doctor who performed abortions.

Mello said such beliefs often come into play, if at all, in the sentencing phase of a trial. Once guilt has been established, he said, motive can be an important factor in deciding the severity of a defendant's punishment.

History also furnishes examples of those who break the law for ideas that are ultimately vindicated - such as anti-slavery activists in the 19th century and civil rights leaders in the 20th.

But the power of their acts, Mello said, derives in no small measure from the fact that they recognize the law, however unjust they believe it to be, and understand the consequences of breaking it.

"When the law says you can't do something and you go ahead and do it anyway as protest, part of what makes that protest legitimate, it seems to me, is the willingness to be punished for it," Mello said.

Rose said he had his doubts about whether his own imprisonment had upped his credibility in the eyes of the public. He said sales of his book and video have stayed about level throughout the ordeal. He doubts he benefited from any "martyr" effect.

"Different people react differently," he said. "Some people think, 'If you've been to prison, I'm not listening to you.' Other people think, 'If you believed in this enough to take it seriously, I'll believe you.' All in all, it probably has a net-zero effect."












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