Fraud Upon the Court by Attorney Mark Yurachek

(For clarity, please read this posting second.)

Postings list is to the right on this page.

On March 30, 2004, IRS agent, James Kohler, provided to Dr. Brown through me, $186,945.00 of nontaxable deposit items for 1994 that had been treated as taxable during indictment, trial and sentencing. Agent Kohler published his report of this matter on June 29, 2004. Said report is attached to Doc. 151 as Exhibit A.

On or about May 27, 2004, Dr. Brown's family hired Attorney Bruce S. Harvey to produce his Title 28, Section 2255 Appeal (MOTION TO SET ASIDE OR CORRECT ERRONEOUS SENTENCE). Attorney Harvey assigned Attorney Mark A. Yurachek to handle the appeal.

On January 19, 2005, Dr. Brown filed amended 1994 return with the IRS that reflected zero tax liability and more than $64,000.00 of negative income available to reduce the 1995 taxable income. Said return was prepared by CPA Edisel Collier. Return and Collier affidavit are attached to Doc. 151 as Exhibit B.

On February 5, 2005, Dr. Brown wrote letter to Attorney Yurachek to inform him of all the case information that had come light so far (especially the zero tax liability for 1994). Attorney Yurachek responded on February 10, 2005 (acknowledging receipt of the letter of February 5th). However, Attorney Yurachek filed Dr. Brown's 2255 appeal motion (Doc. 79, May 19, 2005, Civil Action # 3:05-cv-38-HL) without including, as ground for relief (1994 true tax liability was zero with more than $64,000.00 of negative income left to reduce the 1995 tax liability).

On November 30, 2005, Dr. Brown wrote letter to Judge Lawson to report that Attorney Yurachek was refusing to include, as ground for relief, the amended 1994 return that reflected zero tax liability and more than $64,00.00 of negative income available to reduce the 1995 taxable income in his 2255 motion (Dr. Brown requested Grievance Committee investigation of this extraordinary attorney misconduct situation). Judge Lawson responded, refusing to order investigation, on December 7, 2005. See Doc. 151, Exhibit C for the letter exchanges.

Tax evasion is not possible in the face of zero tax liability. United States v. Edwards, 777 F.2d 644, 650 (11th Cir. 1985). Judgment reversal and sentence correction for year 1994 would have been guaranteed for Dr. Brown, if Attorney Yurachek had included in Dr. Brown's 2255 motion, as ground for relief: 1994 tax liability was zero.

By refusing to inform the Court that Dr. Brown's 1994 tax liability was zero (as ground for relief), Attorney Yurachek knowingly engaged in a material misrepresentation that deprived the Court of essential information, allowing the Court to render a ruling that was inconsistent with established case law in the Eleventh Circuit, Edwards. This kind of conduct on the part of a judicial officer (attorneys and judges are judicial officers) is known as fraud upon the Court. Once fraud upon the Court occurs, the judgments resulting from said fraud are invalid and must not stand, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure.

Note that Judge Lawson was notified of this fraud upon the Court on November 30, 2005, and Judge Lawson did not render his ruling (denying) Dr. Brown's 2255 motion until June 5, 2006. Therefore, Judge Lawson was in complicity with Attorney Yurachek's fraud upon the Court (relinquishing his appearance of impartiality toward Dr. Brown). This violates the Supreme Court standard set in Liljeberg v. Health Services Acquisition Corp. 486 U.S. 847, 108 S.Ct. 21294 (1988), rendering self-executing recusal appropriate under 28 U.S.C. Section 455(a).

To address this fraud upon the Court and seek relief (October 12, 2007), Dr. Brown (pro se) filed Doc. 151, MOTION FOR RELIEF FROM JUDGMENT UNDER FED. R. CIV. P. 60(b) PURSUANT TO FRAUD UPON THE COURT. This motion is still pending in the District Court, Middle District of Georgia.

Tax Evasion Conviction in the Face of Zero Tax Due

(For clarity, please read this posting first.)

Postings list is to the right on this page.

Dr. Bradford G. Brown (my brother) was convicted for tax evasion on March 13, 2003 (Case # 3:02-cr-14 in the Middle District of Georgia). Presiding judge was District Judge Hugh Lawson and prosecutors were Attorney Glenn A. Makl and Attorney Jennifer P. Burnett of the Department of Justice - Tax Division; defense attorney was Clifton Boone of Sparta, Georgia. He was convicted for tax years (1994, 1995) in association with a tax loss of $232,764.00 for 1994 and $341,476.00 for 1995.

Prosecutors requested that the associated tax loss be accumulated for all years from 1993 forward through 2001, as continued relevant conduct. Judge Lawson granted the request, resulting in a total associated tax loss of $1,561,400.00 and $1,521.600.00 in interest and penalties (for total restitution obligation of $3,083,000.00).

Dr. Brown was sentenced to 41 months of prison time (followed by 3 years of supervised release), and to pay monetary assessment of $200.00, fine of $40,000.00 and restitution of $3,083,000.00. Dr. Brown surrendered to Maxwell Air Force Base Federal Prison Camp (Montgomery, Alabama 36112) to begin serving his 41 month sentence on August 22, 2003 (Inmate #: 91022-020).

The tax loss was provided by Dr. Brown's accountant, Arthur Smith (in a set of tax returns, filed to IRS in 2002). Accountant Smith explained to Dr. Brown that there were records missing, and that in light of the fact that (the IRS had served notice that they had been auditing Dr. Brown since March of 1997 and had determined that Dr. Brown's case would be referred to the Criminal Division for prosecution for tax evasion), a defensive filing was called for. According to Accountant Smith's affidavit, a defensive filing counts all money deposited as taxable unless there is written proof to the contrary, and treats all money expended as nondeductible unless there is written proof to the contrary.

The net effect of this approach was that the income was overstated and the deductions were understated. See case docket entry ("Doc.") 87, Exhibit B for Accountant Smith's affidavit.

On March 30, 2004, IRS agent (James Kohler) provided to Dr. Brown (through his appeal attorney, Ceasar Richbow, and me), $186,945.00 of nontaxable CD deposits that had been counted in the 1994 returns as taxable.

At that point Dr. Brown asked me to carefully review the available records to determine his true 1994 tax liability. I took my findings to Certified Public Accountant ("CPA") Edisel Collier, who produced an amended return that showed that the true tax liability for 1994 was zero with more than $64,000.00 of negative income available to reduce the tax liability for 1995.

Upon release from prison Dr. Brown presented this new information to the Court (October 23, 2006) by filing (pro se) Doc. 121, MOTION FOR RECONSIDERATION OF RESTITUTION AND FINE. To this point, Judge Lawson has refused to rule on Doc. 121. Note that tax evasion is not possible in the face zero tax liability. United States v. Edwards, 777 F.2d 644, 650 (11th Cir. 1985). Therefore, Dr. Brown could not have been guilty of tax evasion for tax year 1994 (notwithstanding his conviction for said tax year).