Becraft In The News

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notorial dissent
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Re: Becraft In The News

Postby notorial dissent » Fri Apr 20, 2012 2:10 am

And yet Cryer managed to do just that and get off on just that technicality, and he is, or at least is supposed to be, a competent and well trained lawyer, yet he plead Cheek in his OWN tax evasion trial, and managed to pull it off. Of course, not knowing Cryer, maybe convincing a jury that you don’t know what you are doing and can’t walk and chew gum at the same time is self evident in his case, and so proving his case wasn’t all that hard after all.

Larry has a long litany of things he “deeply believes” as far as the law is concerned, the Federal law only applies to DC premis being one of the oldest and biggest and the one he bases most of the rest of it on, as well as some other favorites that make equally as much sense. He has however gotten slapped down enough times for them that he knows that if he trots them out for public consumption again, i.e. a judge, he will get his head handed to him, so lately he seems to be going with Cheek.

As long as Larry’s natural feeding ground is in the waters of tax denial, and as long as he can maintain his appearance as being a fellow traveler out fighting the good fight, he will continue to have clients who keep believing he will find some magic bullet and get them off, when all he generally manages to do is blunt the worst of the charges and they still end up paying what they would have to begin with, which in most of their cases is all the win they are ever going to get. I think currently he is giving the anti tax spiel he has down so well, and then when it comes time for court he goes for Cheek or whatever he thinks will get them out of the most trouble, but still essentially where they started out, but at least not on their way to jail a la Hendrickson, which has to be counted a definite plus on their side.
The fact that you sincerely and wholeheartedly believe that the “Law of Gravity” is unconstitutional and a violation of your sovereign rights, does not absolve you of adherence to it.

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Re: Becraft In The News

Postby Famspear » Fri Apr 20, 2012 2:26 am

Cryer was successful in confusing the jury about what his awareness of the tax law really consisted of -- or perhaps the prosecution simply failed to persuade the jury beyond a reasonable doubt that Cryer was aware of what the law was.

And part of the essence of the Cheek doctrine is that the determination of whether one is "willful" under the criminal provisions of the Internal Revenue Code is indeed a question for the jury to decide -- a factual issue, not a legal one. The defendant's actual belief about the the tax law does not have to be objectively reasonable to negate willfulness -- but it does have to be an "actual good faith belief based on a misunderstanding caused by the complexity of the tax law". A rational jury could find that the defendant has an irrational but "actual good faith belief based on a misunderstanding caused by the complexity of the tax law" and thereby negate willfulness.

Under Cheek, an actual belief that the tax law is unconstitutional is not an "actual good faith belief based on a misunderstanding caused by the complexity of the tax law" -- no matter how fervently and honestly that belief is held.

But it's still up to the jury to decide willfulness.
...why is anyone in this [losthorizons] community paying the least attention to...'Larry Williams' [Famspear], or other purveyors of disinformation from...quatloos? – Pete Hendrickson, former inmate 15406-039, Fed’l Bureau of Prisons

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Re: Becraft In The News

Postby Famspear » Fri Apr 20, 2012 3:20 am

Other commentators have noted that the Cheek doctrine is a source of confusion. Even the IRS Chief Counsel's office is not immune. Check this out, from the IRS Crimes Handbook:

Both the defense of good faith misunderstanding of the law and the defense of
belief that the tax laws are unconstitutional are acceptable defenses without regard to the objective reasonableness of the misunderstanding or belief. However, proof that the
defendant possessed knowledge that the law imposes a duty on him will negate these
defenses and imply that the defendant merely disagreed with the law. Cheek v. United
States, 498 U.S. 192, 201-02 (1991); United States v. Willie, 941 F.2d 1384, 1395 (10th
Cir. 1991), cert. denied, 502 U.S. 1106 (1992); United States v. Gaumer, 972 F.2d 723,
724 (6th Cir. 1992).


--from the IRS Crimes Handbook, Office of Chief Counsel, Criminal Tax Division, p. 44 (2009) (italics in original).

Obviously, part of this material is wildly incorrect. In Cheek, the Supreme Court specifically held that a belief that the tax laws are unconstitutional is NOT a defense, and does not negate willfulness, even if that belief is genuine.

The presentation in the Manual is a bit confusing, because the subheading right above this material reads: "Defenses which have been accepted or rejected by the courts include the following". Nevertheless, the Manual seems to be incorrectly stating that the Court ruled in Cheek that a belief that the tax laws are unconstitutional is a defense. Citing Cheek, Willie and Gaumer for that statement is obviously incorrect.

Here are the two holdings in Cheek:

>>>>>1. A genuine, good faith belief that one is not violating the Federal tax law based on a misunderstanding caused by the complexity of the tax law (e.g., the complexity of the statute itself) is a defense to a charge of "willfulness", even though that belief is irrational or unreasonable.

>>>>>2. A belief that the Federal income tax is unconstitutional is not a misunderstanding caused by the complexity of the tax law, and is not a defense to a charge of "willfulness", even if that belief is genuine and is held in good faith.

On the second holding, here is what the Supreme Court stated in Cheek:

Claims that some of the provisions of the tax code are unconstitutional are submissions of a different order. [citation omitted] They do not arise from innocent mistakes caused by the complexity of the Internal Revenue Code. Rather, they reveal full knowledge of the provisions at issue and a studied conclusion, however wrong, that those provisions are invalid and unenforceable. Thus, in this case, Cheek paid his taxes for years, but after attending various seminars and based on his own study, he concluded that the income tax laws could not constitutionally require him to pay a tax.

We do not believe that Congress contemplated that such a taxpayer, without risking criminal prosecution, could ignore the duties imposed upon him by the Internal Revenue Code and refuse to utilize the mechanisms provided by Congress to present his claims of invalidity to the courts and to abide by their decisions. There is no doubt that Cheek, from year to year, was free to pay the tax that the law purported to require, file for a refund and, if denied, present his claims of invalidity, constitutional or otherwise, to the courts. See 26 U.S.C. 7422. Also, without paying the tax, he could have challenged claims of tax deficiencies in the Tax Court, 6213, with the right to appeal to a higher court if unsuccessful. 7482(a)(1). Cheek took neither course in some years, and, when he did, was unwilling to accept the outcome. As we see it, he is in no position to claim that his good-faith belief about the validity of the Internal Revenue Code negates willfulness or provides a defense to criminal prosecution under 7201 and 7203. Of course, Cheek was free in this very case to present his claims of invalidity and have them adjudicated, but, like defendants in criminal cases in other contexts who "willfully" refuse to comply with the duties placed upon them by the law, he must take the risk of being wrong.


--from Cheek v. United States, 498 U.S. 192 (1991) (emphasis added).
...why is anyone in this [losthorizons] community paying the least attention to...'Larry Williams' [Famspear], or other purveyors of disinformation from...quatloos? – Pete Hendrickson, former inmate 15406-039, Fed’l Bureau of Prisons

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Re: Becraft In The News

Postby Famspear » Fri Apr 20, 2012 3:29 am

Some of the confusion over "willfulness" (as the term in the Internal Revenue Code is interpreted) has been caused the gradual "slide" of the courts, in their decisions, to the use of terms such as "belief" and "actual belief" and "actual good faith belief." The use of these terms cannot be understood -- in the way the courts use these terms -- without reference to the official formulation of willfulness: the voluntary, intentional violation of a KNOWN legal duty -- a legal duty of which the defendant is AWARE.

The willfulness element in the Internal Revenue Code has been interpreted by the courts as providing an exception to the general rule that ignorance of the law is not a defense. The Cheek defense, and the study of willfulness in the tax code, cannot be properly understood without reference to the point that we are talking about an exception to a general rule.

As the Court implied in Cheek, we must look to what Congress intended when it used the term "willful" in the tax law. The courts have ruled that Congress did not intend that an actual belief that the tax law is unconstitutional would be a valid defense. The courts have ruled that the kind of actual belief that qualifies to defeat a charge of willfulness is an actual good faith belief (even if not objectively reasonable or rational) based on a misunderstanding caused by the complexity of the tax law -- not based on one's own interpretation of the Constitution or one's own interpretation of the constitutionality of the tax law.
...why is anyone in this [losthorizons] community paying the least attention to...'Larry Williams' [Famspear], or other purveyors of disinformation from...quatloos? – Pete Hendrickson, former inmate 15406-039, Fed’l Bureau of Prisons

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Re: Becraft In The News

Postby . » Fri Apr 20, 2012 4:14 am

The nuances of a Cheek defense are so complex that it even confuses the IRS.

They really ought to fix page 44.

Oh, well, it's only been 2-3 years. Close enough for government work.
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Re: Becraft In The News

Postby Quixote » Thu Jan 02, 2014 10:27 pm

An update on the Gilmartin case.

On July 16, 2013, in Manhattan, N.Y., David Gilmartin, a Ph.D. economist, was sentenced to 48 months in prison, three years of supervised release and ordered to pay $1.67 million in restitution and $2,500 in the costs of prosecution.
"Here is a fundamental question to ask yourself- what is the goal of the income tax scam? I think it is a means to extract wealth from the masses and give it to a parasite class." Skankbeat

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Re: Becraft In The News

Postby Famspear » Sat Mar 08, 2014 4:45 pm

Lowell ("Larry") Becraft and Steve Hempfling are coming to Houston! This is from Bob Hurt's web site:

Friends & Patriots,
March 29th - New Meeting in Houston, Texas!

Special Guests Attorney Larry Becraft, Excellent Constitutional Attorney and Steve Hempfling, Director of Free Enterprise Society.
Saturday's meeting Topics include: Origins of the Income Tax; Who it applies to; Jurisdiction, Debt money vs. Honest money, Importance of the US Statutes at Large, a Plan to end the Income Tax, Questions and Answers. And More! Spend an informative day with Attorney Larry Becraft.
SATURDAY, March 29th, 9am-5pm. Hilton Garden Inn, 15400 John F. Kennedy Blvd, Houston TX.
(North of N. Sam Houston Pkwy. Near Bush International Airport. Free shuttle from airport)

[ . . . ]

New research and information!
Learn the truth about the income tax! Very interesting meeting.
FREE DVD of Attorney Tommy Cryer describing his BIG WIN against the IRS, to all attendees.
Free Enterprise Society members receive a 10.00 discount!
You can join for 55.00 at the meeting and receive the 10.00 member discount.
Call for reservations 209-966-7040 or it is OK to just come to the door....


:|
...why is anyone in this [losthorizons] community paying the least attention to...'Larry Williams' [Famspear], or other purveyors of disinformation from...quatloos? – Pete Hendrickson, former inmate 15406-039, Fed’l Bureau of Prisons

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Re: Becraft In The News

Postby grixit » Sat Mar 08, 2014 7:30 pm

Hmm, the Huffalump is back.
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Re: Becraft In The News

Postby JamesVincent » Sat Mar 08, 2014 7:33 pm

"Excellent Constitutional Attorney"?


:shock:
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Lift me up and help me to fly away.
Lift me up above this, the broken, the empty,
Lift me up and help me to fly away,
Lift me up!

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Re: Becraft In The News

Postby Kestrel » Sat Mar 08, 2014 8:03 pm

Famspear wrote:Lowell ("Larry") Becraft and Steve Hempfling are coming to Houston! This is from Bob Hurt's web site:

FREE DVD of Attorney Tommy Cryer describing his BIG WIN against the IRS, to all attendees.


:|

Steve Hempfling put Cryer's website back up with a slightly different name:
http://www.truth-attack.com/

The content hasn't been updated since Tommy's obit was run in July 2012, but the donation links have been updated.
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Re: Becraft In The News

Postby Famspear » Sat Mar 08, 2014 8:16 pm

Kestrel wrote:....but the donation links have been updated.


And, of course, that's what's most important, anyway!

:)
...why is anyone in this [losthorizons] community paying the least attention to...'Larry Williams' [Famspear], or other purveyors of disinformation from...quatloos? – Pete Hendrickson, former inmate 15406-039, Fed’l Bureau of Prisons

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Re: Becraft In The News

Postby The Observer » Thu Mar 23, 2017 4:10 pm

Gilmartin appealed his conviction and the result was no surprise:


UNITED STATES OF AMERICA,
Appellee,
v.
DAVID GILMARTIN,
Defendant-Appellant.

Release Date: MARCH 22, 2017


UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 22nd day of March, two thousand seventeen.

PRESENT:
DENNY CHIN,
RAYMOND J. LOHIER, JR.,
Circuit Judges,

COLLEEN McMAHON,
Chief District Judge./*/

FOR DEFENDANT-APPELLANT:
David Gilmartin, pro se, Atwater, California.

FOR APPELLEE:
Stanley J. Okula, Jr., Nanette L. Davis, Special
Assistant United States Attorneys, Karl
Metzner, Assistant United States Attorney, for
Joon H. Kim, Acting United States Attorne
y for
the Southern District of New York, New York,
New York.

Appeal from the United States District Court for the Southern District of New York (Cedarbaum, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment
of the district
court is AFFIRMED.

Defendant-appellant David Gilmartin was convicted after a jury trial of corruptly endeavoring to impede the due administration of the Internal Revenue Laws, in violation of 26 U.S.C. section 7212(a); tax evasion, in violation of 26 U.S.C. section 7201; failure to file an income tax return, in violation of 26 U.S.C. section 7203; failure to pay taxes to the Internal Revenue Service ("IRS"), in violation of 26 U.S.C. section 7203; and mail fraud, in violation of 18 U.S.C. section 1341.

At trial, represented by counsel, Gilmartin conceded that he had not filed tax returns or paid taxes. He argued instead that he did not possess the requisite criminal intent for conviction because he held a good-faith belief that the IRS was not authorized to hold him liable for unpaid taxes. The district court excluded documentary evidence that he offered to support his beliefs -- written works that challenged the validity of the tax laws, excerpts of the Internal Revenue Code, and instructions published by the IRS -- concluding that the evidence would likely confuse the jury, but permitted Gilmartin to testify about the documents. After the parties rested, the court instructed the jury that it had to unanimously agree on the specific factual allegations that established the counts of obstruction, tax evasion, and mail fraud. At sentencing, the court determined that Gilmartin was subject to a two-level enhancement for obstruction of justice because he had provided false testimony, but it ultimately imposed a below-Guidelines sentence of 48 months' imprisonment.

On appeal, Gilmartin, pro se, challenges (1) the district court's evidentiary ruling; (2) the sufficiency of the evidence of willfulness; (3) whether the jury unanimously agreed on the specific factual allegations that established the counts of obstruction, tax evasion, and mail fraud; (4) the lawfulness of his conviction because he is not liable for taxes; and (5) the timeliness of the mail fraud charge. In an earlier brief filed by counsel, before Gilmartin was permitted to proceed pro se, he also challenged the propriety of the two-level obstruction of justice enhancement.

I. Exclusion of documentary evidence

We review evidentiary rulings for abuse of discretion, reversing only for manifest error. United States v. Miller, 626 F.3d 682, 688 (2d Cir. 2010). Under Federal Rule of Evidence 403, a district court "may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403. The district court did not abuse its discretion in excluding Gilmartin's documentary evidence, which included argumentary materials regarding the "voluntary nature" of filing tax returns and excerpts from the Internal Revenue Code, as it had the potential to confuse the jury. See United States v. Kraeger, 711 F.2d 6, 7-8 (2d Cir. 1983) (per curiam); see also United States v. Payne, 978 F.2d 1177, 1182 (10th Cir. 1992). Furthermore, although the documents were excluded, the district court permitted Gilmartin to testify about the documents and the basis of his understanding of the tax laws. We agree that the probative value of the evidence did not substantially outweigh the danger of unfair prejudice or confusion.

II. Sufficiency of the Evidence

Gilmartin argues that the evidence was insufficient to establish the requisite criminal intent for his convictions. 1 It is well-established that a defendant challenging the sufficiency of the evidence bears a heavy burden." United States v. Aguiar, 737 F.3d 251, 264 (2d Cir. 2013) (internal quotation marks and citation omitted). When considering a sufficiency challenge, "we view the evidence in the light most favorable to the government, drawing all inferences in the government's favor and deferring to the jury's assessments of the witnesses' credibility." Id. A jury verdict must stand as long as "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

In the tax fraud context, willfulness is established when the government shows (1) "the law imposed a duty on the defendant"; (2) "the defendant knew of [that] duty"; and (3) "[the defendant] voluntarily and intentionally violated that duty." United States v. Klausner, 80 F.3d 55, 62-63 (2d Cir. 1996) (quoting Cheek v. United States, 498 U.S. 192, 201 (1991)). Willfulness may be established by circumstantial evidence. Id. at 62-63. We have previously determined that certain facts can support an inference that a defendant willfully violated his duty to obey tax laws, including the defendant's prior taxpaying record, United States v. Bok, 156 F.3d 157, 165 (2d Cir. 1998); educational background, United States v. MacKenzie, 777 F.2d 811, 818 (2d Cir. 1985); and knowledge of previous court rulings against the defendant or others who relied on the defendant's theory of tax law, United States v. Schiff, 801 F.2d 108, 112 (2d Cir. 1986); United States v. Ebner, 782 F.2d 1120, 1126 (2d Cir. 1986) (defendants'continued claim of tax-exempt status after court issued judgment against them "was strong proof to rebut [the] contention that they did not knowingly do anything illegal".

The government presented compelling evidence to establish Gilmartin's intent to violate the Tax Code, secure an unlawful advantage for himself, and deprive the IRS of taxes owed. The record is replete with evidence of Gilmartin's advanced education level, history of filing valid tax returns, and knowledge of case law that rejected his theory of tax liability. In particular, Gilmartin refused to file returns after a New York State appellate court rejected his arguments and dismissed his appeal, which belies the contention that he did not knowingly violate the law. Ebner, 782 F.2d at 1126. Thus, the government provided sufficient evidence for a rational jury to conclude that Gilmartin acted with the requisite intent.

Finally, Gilmartin may not rely on his purportedly good-faith belief that he was not required to pay taxes, as such a defense "encompasses misunderstanding of the law, not disagreement with the law." Schiff, 801 F.2d at 112. Claims regarding the constitutionality of the Tax Code that "do not arise from innocent mistakes caused by the complexity of the [code]" are wholly different, do not negate willfulness, and do not provide a defense to criminal prosecution. Cheek, 498 U.S. at 205-06.

III. Unanimity of Jury Findings

Gilmartin also challenges his conviction on the ground that the district court did not require a special verdict form and, therefore, there is no proof that the jury unanimously agreed on the specific allegations that established the counts of obstruction, tax evasion, and mail fraud. We review this argument for plain error as it was not raised below and find no such error here. United States v. Kozeny, 667 F.3d 122, 131 (2d Cir. 2011). Gilmartin's argument fails because the district court instructed the jury that it had to unanimously agree on the specific allegations of the counts in question, and a jury is assumed to have followed the instructions given to it by the court. United States v. Jass, 569 F.3d 47, 55 (2d Cir. 2009).

IV. Tax Protestor Arguments

Gilmartin's argument that that his conviction should be overturned because he was not liable for taxes is also unavailing. We have consistently rejected these arguments, and they do not provide a basis for Gilmartin to challenge his conviction. See, e.g., Ficalora v. C.I.R., 751 F.2d 85, 87-88 (2d Cir. 1984).

V. Timeliness of Mail Fraud Charge

Gilmartin asserts on appeal that he was charged with mail fraud more than five years after his last allegedly fraudulent mailing. Gilmartin did not raise this defense before the district court, thereby waiving his right to assert it on appeal. See United States v. Walsh, 700 F.2d 846, 855-56 (2d Cir. 1983).

VI. Sentencing Enhancement

We review a sentencing court's application of the Sentencing Guidelines de novo and its underlying factual findings with respect to sentencing for clear error. United States v. Cossey, 632 F.3d 82, 86 (2d Cir. 2011). A defendant is subject to the two-level enhancement if he "willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice." U.S.S.G. section 3C1.1. The enhancement is appropriate when a defendant gives "false testimony concerning a material matter with the willful intent to provide false testimony." United States v. Dunnigan, 507 U.S. 87, 94 (1993).

Although Gilmartin, through his prior counsel, characterizes his testimony as merely a frivolous legal position, Gilmartin's education, continued failure to pay taxes despite repeated notice from the IRS regarding his obligations, and knowledge of legal precedent rejecting his theories undermine his testimony that he believed in good faith that he had no obligation to pay taxes. Accordingly, the district court's finding that Gilmartin gave false testimony regarding his understanding of his obligation to pay taxes was not clearly erroneous.

We have considered all of Gilmartin's remaining arguments and find them to be without merit. Accordingly, for the reasons stated above, we AFFIRM the judgment of conviction.

FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk

//*//

Chief Judge Colleen McMahon, of the United States District Court for the Southern District of New York, sitting by designation.

FOOTNOTES:

/1/ For Counts Two, Three, and Four, tax evasion, failure to file a tax return, and failure to pay taxes, the government was required to prove willfulness. See United States v. Josephberg, 562 F.3d 478, 488 (2d Cir. 2009) (tax evasion); United States v. Hassebrock, 663 F.3d 906, 919 (7th Cir. 2011) (failure to file); United States v. McGill, 964 F.2d 222, 239-40 (3d Cir. 1992) (failure to pay). For Count One, IRS obstruction, the government had to show that Gilmartin acted "corruptly," or with "the intent to secure an unlawful advantage or benefit" for himself or another. United States v. Marinello, 839 F.3d 209, 218 (2d Cir. 2016) (quoting United States v. Parse, 789 F.3d 83, 121 (2d Cir. 2015)). For Count Five, mail fraud, the government had to prove Gilmartin's specific intent to defraud the United States of federal taxes. See United States v. Parse, 789 F.3d 83, 121 (2d Cir. 2015).
"I could be dead wrong on this" - Irwin Schiff

"Do you realize I may even be delusional with respect to my income tax beliefs? " - Irwin Schiff

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notorial dissent
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Re: Becraft In The News

Postby notorial dissent » Fri Mar 24, 2017 3:42 am

It doesn't look like he did much better on his own than he did with Becraft's help.

Is Becraft even still playing, haven't heard that name in quite a while.
The fact that you sincerely and wholeheartedly believe that the “Law of Gravity” is unconstitutional and a violation of your sovereign rights, does not absolve you of adherence to it.


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