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Allocution and Jurisdiction

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  • Cal Schindel
    CADET CUSTER S COURT-MARTIAL The story of George Armstrong Custer s court-martial is a case on point. In 1861, as a young cadet in West Point, Mr. Custer
    Message 1 of 5 , Feb 28, 2004
      CADET CUSTER'S COURT-MARTIAL

      The story of George Armstrong Custer's court-martial is a case on point.
      In 1861, as a young cadet in West Point, Mr. Custer struck an officer
      and knocked him to the ground. He was immediately arrested, tried
      before a court martial and found guilty of the offense. Custer was about
      to be sentenced to 15 years of hard labor. Before sentencing, Custer
      addressed the court and asked why the sentence was so severe, it was
      only a friendly fist fight. The court explained to Custer that the
      sentence imposed was mandated by the Articles of War, which provided at
      Article 9:

      Any officer or soldier who shall strike his superior officer, or draw or
      lift up any weapon, or offer any violence against him, being in the
      execution of his office, on any pretense whatsoever, or shall disobey
      any lawful command of his superior officer, shall suffer death, or such
      other punishment as shall, according to the nature of his offense, be
      inflicted upon him by the sentence of a court-martial. (2 Statutes at
      Large 259).

      The court went on to explain that Custer, as a cadet had signed the
      Articles of War when he was admitted to the academy and was bound to
      the punishment. The court felt that the punishment was suitable to the
      nature of the offense and quite merciful under the circumstances.

      Custer expressed confusion and stated that he didn't know anything
      about these Articles of War and didn't have any recollection of signing
      them. This statement put the officers of the court-martial in a frenzy.
      They immediately adjourned the court to inspect the enrollment records.
      Sure enough, they found that Custer had not signed the Articles of War.
      When the court was reconvened, the judge ruled that the case is
      dismissed for lack of <<<<<<<subject matter jurisdiction>>>>>>.

      Custer was then ordered to sign the Articles of War or discontinue his
      education at West Point. The fate of Custer was determined by the want
      of a signature. In this trial, Custer was afforded the right of
      allocution. Allocution is the formality of a court's inquiry of a
      defendant as to whether he has any legal cause to show why judgment
      should not be pronounced against him on conviction (See: Black's 6 th
      ). In this case, Custer was able to show cause as to why he should not
      be sentenced and save himself from being imprisoned and possibly hanged.
      When Custer denied having signed the contract, the burden of proof was
      shifted because of his rebuttal of the presumption that the contract
      existed. Custer was freed because, without the contract, the
      court-martial did not have subject matter jurisdiction to execute the
      sentence. Custer may have known what he was doing by demanding the
      right of allocution, which is alive and well today, but I doubt it. The
      authors believe he was just lucky and stumbled and bumbled into the
      remedy. This story is a fact of history. It is also a fact of history
      that Custer did not learn much from the court-martial because he later
      disobeyed orders by not waiting for reinforcements at a place called
      Little Big Horn, a place where his luck left him. Moral of the story
      is: if the lawyers don't get you the Injuns will.

      The right of allocution is an ancient right rooted in the English common
      law and cannot be denied.

      The Supreme Court has held in Green v. United States, 365 U.S. 301
      (1961): The design of Rule 32 (a) did not begin with its promulgation;
      its legal provenance was the common-law right of allocution. As early
      as 1689, it was recognized that the court's failure to ask the
      defendant if he had anything to say before sentence was imposed
      required reversal. See Anonymous, 3 Mod. 265, 266, 87 Eng. Rep. 175 (K.
      B.). Taken in the context of its history, there can be little doubt
      that the drafters of Rule 32 (a) intended that the defendant be
      personally afforded the opportunity to speak before imposition of
      sentence. We are not unmindful of the relevant major changes that have
      evolved in criminal procedure since the seventeenth century - the sharp
      decrease in the number of crimes which were punishable by death, the
      right of the defendant to testify on his own behalf, and the right to
      counsel. But we see no reason why a procedural rule should be limited
      to the circumstances under which it arose if reasons for the right it
      protects remain. None of these modern innovations lessens the need for
      the defendant, personally, to have the opportunity to present to the
      court his plea in mitigation. The most persuasive counsel may not be
      able to speak for a defendant as the defendant might, with halting
      eloquence, speak for himself. We are buttressed in this conclusion by
      the fact that the Rule explicitly affords the defendant two rights: "to
      make a statement in his own behalf," and "to present any information in
      mitigation of punishment." We therefore reject the Government's
      contention that merely affording defendant's counsel the opportunity to
      speak fulfills the dual role of Rule 32 (a). See Taylor v. United
      States, 285 F.2d 703.
    • Russell Mortland
      I dismissed my bankruptcy on Friday 2-20-2004, but the same day in the mail we also received a proof of claim and form 10 filed in our case. The most
      Message 2 of 5 , Feb 28, 2004
        I dismissed my bankruptcy on Friday 2-20-2004, but the same day in the
        mail we also received a proof of claim and form 10 filed in our case.

        The most interesting part is that under "Date Tax Assessed" it states:
        UNASSESSED LIABILITY.

        How do you owe anything if it has not been assessed?
      • Tim Costello
        Seems like the IRS missed the bus...I would consult a bankruptcy attorney (as much as I do not like attorneys). Tim ... From: Russell Mortland
        Message 3 of 5 , Mar 3, 2004
          Seems like the IRS missed the bus...I would consult a bankruptcy attorney (as much as I do not like attorneys).
           
          Tim
          -----Original Message-----
          From: Russell Mortland [mailto:rtm@...]
          Sent: Saturday, February 28, 2004 11:18 PM
          To: tips_and_tricks@yahoogroups.com
          Subject: [tips_and_tricks] IRS Proof of Claim filed in Bankruptcy Court

          I dismissed my bankruptcy on Friday 2-20-2004, but the same day in the
          mail we also received a proof of claim and form 10 filed in our case.

          The most interesting part is that under "Date Tax Assessed" it states:
          UNASSESSED LIABILITY.

          How do you owe anything if it has not been assessed?
        • Bob law
          Russell, Have you gotten a copy of your Individual Master File and had it decoded to see what the agency has been doing in your account? Respectfully, Bob L.
          Message 4 of 5 , Mar 3, 2004
            Russell,
            Have you gotten a copy of your Individual Master File
            and had it decoded to see what the agency has been
            doing in your account?
            Respectfully,
            Bob L.


            --- Russell Mortland <rtm@...> wrote:
            > I dismissed my bankruptcy on Friday 2-20-2004, but
            > the same day in the
            > mail we also received a proof of claim and form 10
            > filed in our case.
            >
          • Utlage
            You don t owe anything. we had the same thing happen one time. Once we dismissed the case, they went away. never heard from them again. ... From: Russell
            Message 5 of 5 , Mar 5, 2004
              You don't owe anything.  we had the same thing happen one time.  Once we dismissed the case, they went away.  never heard from them again.
               
              -----Original Message-----
              From: Russell Mortland [mailto:rtm@...]
              Sent: Saturday, February 28, 2004 11:18 PM
              To: tips_and_tricks@yahoogroups.com
              Subject: [tips_and_tricks] IRS Proof of Claim filed in Bankruptcy Court

              I dismissed my bankruptcy on Friday 2-20-2004, but the same day in the
              mail we also received a proof of claim and form 10 filed in our case.

              The most interesting part is that under "Date Tax Assessed" it states:
              UNASSESSED LIABILITY.

              How do you owe anything if it has not been assessed?
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