Robert Belshaw
UPDATE!
BELSHAW REDEMPTION UPDATE!
("Low hanging fruit")
January 20, 2009
PURE NONSENSE
As predicted, the appellate court, captained by a former U.S. attorney, Judge Nora Manella, rubber stamped all of Robert's convictions, with virtually no facts or even case authority to support them, using such flimsy arguments so as to render the decision an actual statement of Robert's innocence. On appeal, Robert relied on a recent case which holds that there can be no conviction for any type of tax evasion, state or federal, absent some proof of a tax liability. At trial, no such evidence was presented. More to the point, it is a violation of due process to fail to instruct a jury on all the elements of a crime and, of course, this element was missing from the jury instructions at Robert's kangaroo trial. How would you like to be convicted of murder just because someone found a corpse somewhere, with the jury not instructed on motive and other criminal intent? Robert's trial judge, the Hon.Curtis B. Rappe, also a former U.S. attorney, is breathing easier, at least for the moment. His reputation as a shill for the District Attorney is there for all to see at Robe Probe.com and Courthouse Forum.com, reputable sites for the rating of jurists. It seems that Judge Rappe has had a long standing problem with bias in favor or the people. Worse, he, himself, has had problems telling the truth. Three separate matters in 2001 promoted a misconduct complaint to be filed against him by the public defender's office. In one matter, he held in contempt a public defender, a former classmate of Robert, who had the guts to stand up for her client. The contempt order was successfully appealed. In another matter, he refused to allow another public defender leave in order to attend to his wife's medical emergency .The third matter involved an order that a public defender write out her objections, instead of voicing them, wherein the lawyer was treated like a "piece of meat". Refer to www.articles.latimes.com/2001/aug/24/local/me-37701. Sadly, the judge's own account of at least one of these incidences was contradicted by witnesses, including the district attorney! With Judge Rappe's history of lawyer abuse, Robert's lawyer evidently decided that this was no time to rock the boat and stand up for him either! Judge Manella's reputation pretty much mirrors that of her colleague.
The appellate court found this Chapman v. California constitutional error to be "harmless", supporting the novel theory that a criminal accused has only "one bite of the apple" when it comes to raising defenses. In the case upon which Robert relied, the accused never contested the receipt of the subject income, while Robert had sufficient evidence to show non receipt of the $329,000.00 due to embezzlement by con-man Soloman Davis. Incredibly, the court held that it was somehow "inconsistent" for him to argue non receipt of income and also argue that even if he did receive it, that his deductions could be used to refute the claim of tax owed. In other words, the court, citing no authority whatsoever, decided to penalize Robert for making an embezzlement defense. Since when does someone have to admit receiving $329,000.00 he never saw in order to avail himself of deductions which are the same whether one earns trillions or just a few pennies? Next, a homicide suspect will have to admit to killing someone before he can raise an insanity defense!
But Robert's appointed lawyer, Robin D. Perry, a former prosecutor, never properly contested the receipt of this income either, allowing spread sheets into evidence which listing the forged checks the people are still hiding. He made matters worse by never objecting to or commenting on these sheets to the jury, or asking for a limiting instruction. Obviously, the forged checks were, and still are, the best evidence. Looking the other way, Judge Rappe and the other lawyers avoided any reference to them either! After all, these spreadsheets were tendered into evidence when Robert was absent, visiting his ailing mother who had suffered a mild heart attack. Perry provided Robert with an exhibit list, telling him not to testify because there was "no evidence of income". Of course, this list, prepared by Judge Rappe's clerk, Porfirio Rodriguez, conveniently omitted any reference to these sheets. During Robert's appeal, Rodriguez conveniently lost many documents needed for his appellate record. This is not the first time, according to Robert's appellate counsel, Ralph H. Goldsen. By the way, please check LawyerRatingz.com before you decide to hire Robin B. Perry.
The court stuck its foot deeper into its mouth by misstating the evidence, claiming that since Robert "was in his office all the time" that he "must have known what was going on". One might wonder what case the justices were reading. First of all, what did Robert's presence in the Davis office have to do with whether he owed tax? Was the court grumbling because the jury acquitted him of the spurious fraud charges? Secondly, at trial, no one testified that Robert was in the Davis office for more than one or two days per month and Bryan Thomas, another attorney who leased space from Davis and was also victimized by his forgery, made it clear that it was Davis' master lease and office. How were Robert and Thomas in any different position? Davis also used Thomas' name to submit a bogus insurance claim, but, not surprisingly, Thomas was never charged with a single offense.
The court ignored the fact that while all of the trust accounts Davis controlled were found in his office, that Robert's own separate client's trust account book was never seized from his office at the Davis suite by authorities. In fact, it was sitting at Robert's apartment, the one the authorities couldn't get a warrant to search, and that's a pretty good sign that Robert, like Thomas and many other lawyers today, was working out of his apartment most of the time. Of course, all the work Robert found time to perform there took place between trips to court and to the homes of his ailing mother and daughter, where he spent many hours giving them emotional support and money, to the extent that he could. Thanks to attorney Perry, who refused to put him on the witness stand, Robert never got to testify in his own defense. The jury never found out that his elderly mother, who died while he was in prison, had been abused by caregivers or how Robert's daughter had been molested by her stepfather. Worse, Perry actually told the jury in his opening statement that Robert would take the stand. In his summation, he told the jury that "Robert has not filed his tax returns for years."
Citing a case where a man used legitimate money to become a successful pimp, the court ruled that "clean money" can be laundered. Only in California does soiling clean funds constitute laundering them! But the court carefully omitted any reference to the excellent argument raised by Robert's lawyer in his brief. Since bank deposits must "facilitate criminal activity" for money to be laundered, how can the deposit of insurance settlement drafts in a client's trust account, an act required by law, facilitate the late filing of tax returns? How is failing to file for a timely extension, an omission, a "criminal activity"? According to the Court's own analysis, the laundering statute is "clear" in it's intentions. If that is so, than the alleged criminal activity has to be funded in some manner. Failing to file a tax return in a timely manner needs no funding whatsoever. At trial, there was ample testimony to prove that all personal injury settlements are reported by the insurance carriers on standard 1099 forms to the IRS and Franchise Tax Board. So how can this money be hidden or laundered? That's impossible!
What about Robert's seventy page habeas corpus petition, the one that set the record straight about the incompetence of his attorney and the other strange goings on at trial? What about the misconduct of the district attorney and a juror who spoke about this case on the telephone, or the forged checks the people won't turn over, as required by Brady v. Maryland? The court asked both sides to brief the habeas issues early last year and than waited until after the convictions were affirmed to deny the petition without any comment whatsoever. Strangely, in their decision on appeal the justices implied in a footnote that things might have been different had Perry made the appropriate arguments and objections!
But the court did toss Robert a bone and a very dirty one, at that. The court threw out Robert's high term sentence. Such sentences are illegal, absent jury findings on the aggravating circumstances necessary to support them. But California has again thumbed its nose at the U.S. Constitution, ignoring the U.S. Supreme Court decision in Cunningham v. California, having recently adopted guidelines that allow trial judges to simply jockey around the charges, toss out the high terms, raise the consecutive sentences on other charges, therefore arriving at the same sentence!
The court also had no problem worming its way around the illegal four year enhancement Robert had to serve in Davis' place. As long as two and a half million went through the Davis controlled accounts, the ones he forged Robert's signature to open, that qualified Robert to serve four extra years, despite the fact that only two percent of the money (that he never saw) was dirty and was actually stolen by Davis. Since, unlike Robert, Davis was properly convicted of fraud and the laundering fraudulent money, why did only Robert have to serve the illegal enhancement? With the prospect of a three judge panel ordering the early release of non-violent offenders, it looks like Davis will be subject to early release this year, having served only one more year than his very easy victim!
And how does this re-sentencing help Robert, who finished serving his illegal sentence seven months ago? The court also threw out the restitution order, requiring another hearing, during which Robert will be able to contest the tax they say he owes, offer evidence of his deductions, and even show that money was levied from his account that he did not owe. That's great, but here's a better idea. Why not allow this information to resurface in a new trial and not in a useless restitution hearing, especially since Perry never presented this evidence at trial? Ever the optimist, Robert has taken the philosophical approach.
"Judge Rappe denied me bail, pending appeal, calling me a "danger to society" because he actually knew he had been badly mistaken and didn't want to admit it. At trial, he raised the issue himself, asking "Doesn't there have to be a tax debt?" But he never instructed the jury on that element, never asked counsel to brief the issue and none of the lawyers addressed that issue either, including mine. So, it was see, hear, and do no evil. But had he granted bail, pending appeal, back in 2006, I would be packing my bags right now and heading back to prison for two more years, all for tax returns that were filed late about ten years ago, with no tax owed and the state still owing me a refund due to an unlawful tax levy. So, now that I have done the time, it all worked out, I suppose. Those behind this injustice are trying to sweep it as far under the rug as they can. "In their devious minds, it never happened. I'm sure all those politicians who have not paid their own taxes would laugh at this ridiculous case. From its inception, this case was going to be all about how I was not supposed to get justice, so I predicted that the appellate court would sidestep the truth and embarrass itself in the process. They aren't fooling anyone, especially me, and it's just more to write about."
THE NEXT ROUND
The next step is the appellate court's denial of Robert's petition for rehearing on the factual issues regarding his alleged presence in the Davis office and that of how an omission can constitute money laundering. After that, the California Supreme Court is expected to get out out its own rubber stamp and refuse to decide this case upon petition for review, despite the important constitutional issues and the appellate court's decision to improperly distinguish the crucial tax case. These issues should be decided in Robert's favor and sent back for retrial, but we can't hold our breath. California courts are in the excuse business and not the law business. Meanwhile, Robert has re-filed his habeas corpus petition in the California Supreme Court and has included the 6th Amendment issue of failing to instruct.
"It will fall on the deafest of ears, and they probably will not even grant me a hearing, even though the appellate court hinted that I was the victim of ineffective assistance. The justices cannot justify both their own awful reasoning and Mr. Perry's malpractice and something has to give. For example, it is the duty of both trial counsel and the trial judge to make certain the jury is properly instructed on each of the required elements of each crime. Therefore, I am going to file my federal habeas corpus petition as soon as I can."
Was there a reason for the appellate court's three and one half year delay in deciding this appeal? Federal habeas corpus is the only remedy left after California gets through bungling this case. But habeas corpus only lies when one is in "custody" and that includes parole. Robert's parole officer intends to release him early from his three year parole due to good behavior this June, so Robert's quest for a new trial in order to clear his name is in jeopardy. That's why he is filing his federal habeas petition early, citing cases which hold that the California courts cannot delay habeas hearings, hoping that the petitioner's time will run out for the federal courts to step in.
"All I really want is a hearing on this matter. I want to call certain people on the carpet, and show the federal court what a cruel joke this whole thing has been. The forty two month delay in hearing this appeal sends a message. They don't want to meet me on a level playing field and will do anything to foreclose the chance that my name will be cleared. There are cases that say that state courts may not engage in such delays and I'll have to rely on them when I ask the federal court for a speedy habeas hearing. In truth, habeas covers other issues besides confinement and they aren't always moot once parole is completed. There are cases which require these issues to be heard, for example, if there are remaining issues, such as the re-licensing of lawyers and other professionals. My quest to get my license back eliminates any argument that my petition will be moot, once I am released from parole. Maybe I'll just call my parole officer and tell her to keep me on parole for six more years, the danger to society that I am!"
THE HISTORY THE PEOPLE DON'T WANT YOU TO KNOW
("Low hanging fruit")
Robert's novel, entitled "American Railroad" is still in progress and it tells tales of the dirty politics behind this miscarriage of justice. Why has Robert been such an easy target? Adalbert "Al" Botello, the prosecutor in Robert's case, headed a special fraud unit which was funded by the insurance carriers. This created an instant conflict of interest. Insurance personnel, such as those who lied to tax auditors, including, ironically, those from the Franchise Tax Board, or those who fraudulently denied valid claims, were never prosecuted. Instead, the plan was to prosecute low profile lawyers and their clients, mostly in worker's compensation cases, for the alleged "exaggeration" of what turned out to be real injuries.
The term "low hanging fruit" was coined by the DA's office and it perfectly describes Robert's dilemma. First, he was used by Davis. "Like a whore", according to the arresting officer, and "like a pawn", according to the lead Department of Insurance detective. Next, Robert was falsely prosecuted by the authorities who realized that he was ripe- ready to be picked off, too poor to hire a competent lawyer. The story of this ruthless prosecution mill can be found at www.ciaw.org/public fraud. Before Robert's arrest, the prosecutor's office coined the term "special insurance fraud task force", and naturally, they needed a personal injury lawyer to act as the first victim, just as they had in the worker's compensation cases and Botello was licking his chops, especially when he found out who had been appointed to sell Robert down the river. Now, he is teaching students how help the prosecution, right from the horse's mouth, in his criminal "justice" class at El Camino College. In every endeavor, he has avoided being photographed. If a picture of him were located, it would be easy to see why. Shamefully, the district attorney's office continues to republish it's three year old false article on the web about how Robert was allegedly convicted of "fraud related" offenses. Robert has asked nicely, but the tough guys just won't budge
There is an abundance of history behind Robert's arrest and it involves State Farm Insurance, who Robert soundly whipped in court twelve years ago in a civil matter where the "good neighbor" had unlawfully levied funds from his client's account. Do the words "unlawful levy" sound at all familiar? The Franchise Tax Board and the insurance carriers love to do this. They are all powerful and who is going to stop them? And who was Robert's client at the time of his victory? It was none other than Soloman Davis! This was two years before Davis invited Robert to come and work in his office, but State Farm never forgot. Back in the mid nineties, before Robert ever met Davis, State Farm pushed the authorities to prosecute Davis for committing insurance fraud under a false name, while impersonating a lawyer.
But the district attorney in charge of that case failed to adequately prepare and all charges against Davis, excepting a single misdemeanor charge, were dismissed. Robert, who did not know Davis at the time, knew nothing of this and even had he done a thorough background check on Davis at a later time, it would have revealed no felony convictions. Therefore, among other things, Robert is perhaps the biggest victim of the people's earlier failure to take Davis off the streets! The police report Robert received after his arrest revealed that Davis had taken advantage of three other lawyers who were not doing well financially. According to one former lawyer, he was "rubber stamping" their names on insurance claims. Does the term "rubber stamp" sound familiar? Naturally, none of these lawyers were ever prosecuted before and none were summoned to Robert's trial by Perry.
In the late nineties, a thorough investigation revealed that only Davis was committing fraud, yet again, and just like the lawyers Davis used before him, Robert had zero to do with it. But the authorities, spurned by State Farm, still smarting from its earlier loss in court at the hands of Robert, and the earlier criminal case against Davis, bungled by another hapless prosecutor, went ahead and pushed for Robert's arrest anyway. Why not pick Robert off and get revenge in the bargain, as State farm and the other carriers were paying the special unit to go after struggling lawyers anyway? Naturally, the jury never heard any of these facts from Perry, the "third man" prosecuting Robert in this case. Instead, in his closing argument, Perry told the jury that he had decided to keep his argument short because his wife, a non-lawyer, had so advised him! Was sixteen minutes of argument sufficient to cover six weeks of trial?
While the district attorney is immune from civil claims of malicious prosecution, there is nothing preventing Robert from suing State Farm for its insidious politics and being the driving force behind this illegal arrest and imprisonment. Why did State Farm head the investigation in Robert's case when it only lost money in the earlier Davis fraud case? Of course, the authorities dutifully obeyed State Farm's orders, teaming up with the Franchise Tax Board to add trumped up tax charges, hoping that some of the three dozen charges would stick. The FTB is still prosecuting late tax filers, while withholding tax refunds, due to the unbalanced California state budget!
The rest of the sordid details will be available in "American Railroad". Robert is also authoring a novel entitled "Dr.K" and, the "Lowell Mccraken" series of law related short stories.
Stay tuned for the next round of the Belshaw Redemption!
(And if you are a lawyer that looks like a grape or a banana, be sure to keep a high profile!)
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