Wrongful Reimprisonment Number 2

(For clarity, please read this posting fourth.)

Postings list is to the right on this page.

On March 17, 2008, Judge Clay D. Land was assigned to Dr. Brown's case, at which time exonerative motions were pending (or became pending shortly thereafter) that demonstrated that Dr. Brown, not only did not owe any tax at the time of his tax evasion trial (for years 1994 and 1995), but was owed money by the IRS - estimated to be more than ten million dollars, based on the documents that have been disclosed to Dr. Brown by the Department of Justice, Tax Division Freedom of Information Act ("FOIA") agency.

Judge Land committed misconduct as follows:
a. refused to rule on exonerative motions;
b. initiated unrequested action to reimprison Dr. Brown;
c. ignored subpoena request for FOIA levy documents (representing more than ten million dollars), for which Dr. Brown had already paid;
d. allowed docket misrepresentation (fraud upon the Court).

Dr. Brown reported this conduct by judge Land to the Eleventh Circuit Judicial Counsel on December 1, 2008 in COMPLAINT OF JUDICIAL MISCONDUCT 110890117. The response of the Judicial Council to this complaint is now pending.

On the day that Judge Land arrived (March 17, 2008) or shortly thereafter, exonerative motions were pending, as follows:
1. Doc. 121 10-23-2006 Motion for Reconsideration of Restitution and Fine - showed 1994 true tax liability was zero;
2. Doc. 151 10-12-2007 Motion for Relief from Judgement under Fed. R. Civ. P. 60(b), pursuant to Fraud upon the Court. In Dr. Brown's Section 2255 appeal motion, Attorney Mark Yurachek committed fraud upon the Court by refusing to assert "1994 true tax liability was zero, as a ground for relief" in spite of being asked in writing to do so;
3. Doc. 168 03-26-2008 Amended Reply to Response to Petitioner's 60(b) motion. This motion shows extraordinary circumstances,"FOIA information arrived to demonstrate that at the time of trial, IRS had information that proved Dr. Brown owed zero tax for all conviction years, 1994 and 1995".

In the face of these pending exonerative motions, Judge Land effectuated unrequested damaging action by issuing, on March 17, 2008, Notice of Hearing on Final Probation Revocation Hearing set for 04-03-2008. Since the Government prosecutor did not request this revocation action, he issued Doc. 162 on 03-18-2008, Government Motion for Clarification of Hearing Notice, in which Assistant United States Attorney Dean Daskal asserts, "The docket sheet does not reflect that a revocation petition of any nature is pending before the Court." This shows that Judge Land acted as Prosecutor - losing his appearance of impartiality towards Dr. Brown. In so doing, Judge Land was subverting the administration of the business of the Court, and rendering himself unqualified to preside over Dr. brown's case, pursuant to Title 28, Section 455(a).

This standard "appearance of impartiality to promote public confidence in the integrity of the judicial process" was set by the Supreme Court in Liljeberg v. Health Services Acquisition Corp. 466 U.S. 847, 860 (1988).

Judge Land held the revocation hearing on April 3, 2008, in which Attorney Jennifer Kolman acted as prosecutor (Chief Judge Hugh Lawson was also in attendance). At the revocation hearing, Dr. Brown informed the Court that FOIA had provided on the preceding day (April 2, 2008), 16 pages of levy records that appeared to be responsive to Dr. Brown's FOIA request of February 25, 2008 for IRS levy extractions from insurance accounts destined to Dr. Brown for medical services provided to their members by Dr. Brown for years 1993 until the present. The 16 pages were from the first two boxes (from a total of 23 boxes), and only contained some of the activity for 1994 and 1995. To formalize this exonerative disclosure to the Court, Dr. Brown filed Doc. 175 on the day of the revocation hearing (April 3, 2008). Upon this (levy) disclosure by Dr. Brown, Prosecutor Jennifer Kolman moved the Court to dismiss allegation 5 (this is the allegation concerning Dr. Brown's restitution obligation). This was a tacit admission by Prosecutor Kolman that Dr. Brown owed no tax liability for the conviction years, which implies tax evasion is impossible for said years, United States v. Edwards, 777 F.2d 644, 650 (11th Cir. 1985). See Doc. 177, Minutes Entry for revocation proceeding before Judge Land (page 4, 6:12 p.m.) for Prosecutor Kolman's request for dismissal.

Under these extraordinary circumstances, Judge Land revoked Dr. Brown's supervised release (for failure to work regularly) and sentenced Dr. Brown back to prison for 14 months.

Note that, on June 3, 2005, Dr. Brown suffered a back injury while working on a prison work detail, which caused him to be unable to walk for an extended period of time. Upon release from prison, the residual effects persists until the present. The verification of this fact arrived May 28, 2008 in the form of an FOIA response to a request (to the Bureau of Prisons ("BOP"), Request No. 2008-06964) that Dr. Brown made for the medical records, maintain by BOP on Dr. Brown.