Wednesday, May 1, 2013

Kelley's Writ - Leonard Cohen's Tax Fraud, Unconscionable Refund, & The Los Angeles City Attorney's Attempts To Help Further Defraud U.S. Taxpayers



Two essential rights of the alleged accused at trial are the right to challenge the evidence brought forward by the state and the right to affirmatively make a defense.  This latter right is the right to “compulsory process” or the “right to present a defense,”  See  Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); People v. Hudy, 73 N.Y.2d 40, 538 N.Y.S.2d 197 (1988).

The U.S. Supreme Court's due process jurisprudence was expanded with the 1948 decision in In re Oliver which revised the breadth of the fundamental fairness doctrine: “A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense—a right to his day in court—are basic in our system of jurisprudence; and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel.

In Washington v. Texas  388 U.S. 14 (1967), the U.S. Supreme Court’s holding was based on the Due Process Clause, Chief Justice Earl Warren, who wrote the majority opinion, stated that compulsory process was critical to the very ability to "present a defense...[a] defendant's version of the facts".   This broad right was necessary to note as its absence would make the right to compel witnesses futile.  In modern practice, a violation of the Compulsory Process Clause leads to the reversal of a conviction unless the original error is "harmless.”    This occurs because the exclusion of defense evidence can "significantly undermine fundamental elements of the [defendant's] defense.”  

The Due Process Clauses of the Fifth, Sixth and Fourteenth Amendments also require compulsory process as an element of due process.  State statutes and constitutions are another source of the right to confront witnesses.

In Washington v. Texas, the U.S. Supreme Court reasoned that the Due Process Clause of the Fourteenth Amendment made the right to compel defense witnesses to testify an essential component of a defendant's "due process" right to fair proceedings.

The impact of Washington was narrowed by a later case, Taylor v. Illinois (1988) 484 U.S. 400, in which the Court said that "countervailing public interests", like the need to move through cases quickly, could be balanced against a defendant's right to present witnesses. In Taylor, the Supreme Court upheld a judge's order blocking defense witnesses from testifying due to the defense attorney's deliberate failure to disclose evidence to prosecutors earlier in the trial. The defense attorney's actions resulted in a lengthy delay in the proceedings which the trial judge felt was unjustified.

In Washington, the U.S. Supreme Court held:  1. The Compulsory Process Clause of the Sixth Amendment may, in an appropriate case, be violated by the imposition of a discovery sanction that entirely excludes the testimony of a material defense witness. The Clause is not merely a guarantee that the accused shall have the power to subpoena witnesses, but confers on the accused the fundamental right to present witnesses in his own defense.  2. However, the Compulsory Process Clause does not create an absolute bar to preclusion of the testimony of a defense witness as a sanction for violating a discovery rule. Although a trial court may not ignore the fundamental character of the defendant's right to offer the testimony of witnesses in his favor, the mere invocation of that right cannot automatically and invariably outweigh countervailing public interests. If discovery violations are willful and motivated by a desire to obtain a tactical advantage or to conceal a plan to present fabricated testimony, it would be entirely appropriate to exclude the witnesses' testimony regardless of whether other, less drastic sanctions might be available, adequate, and merited.  The U.S. Supreme Court concluded that “The case fits into the category of willful misconduct for which the severe sanction of preclusion is justified in order to protect the integrity of the judicial process.”  In the instant matter, Petitioner’s lawyers did not engage in discovery violations.  Rather, the prosecutor blind-sided her lawyers with a highly material IRS binder after the beginning of the trial - on April 9, 2012.  At that time, her lawyers were told that Robert Kory (who had met with the prosecutor approximately two weeks earlier) insisted on testifying and provided the prosecutor with the binder and documents contained therein.

“More is at stake than possible prejudice to the prosecution. We are also concerned with the impact of this kind of conduct on the integrity of the judicial process itself. The trial judge found that the discovery violation in this case was both willful and blatant.”  Washington v. Texas.

The Trial Court denied Petitioner’s requests to present two material witnesses:  Agent Luis Tejeda/IRS and her son, Rutger Penick.  Both witnesses could have provided impeachment and other relevant testimony.  The trial court’s decision to deny Petitioner the right to present testimony by Agent Tejeda/IRS and Rutger Penick denied Petitioner the right to a fair trial and a defense.  Whether or not Petitioner knew Agent Tejeda’s name, or reported Leonard Cohen’s tax fraud to him in 2007, is irrelevant.  Prosecutor Sandra Jo Streeter handed Petitioner’s lawyers an IRS binder on April 9, 2012 with evidence that Petitioner was previously unaware of (and did not have an opportunity to actually review until after her release from jail when the Public Defender’s Office sent her a handful of documents from her file).  Petitioner was unaware that Leonard Cohen obtained a refund from the IRS in 2005 and had no idea what his or Robert Kory’s testimony regarding this issue meant.  The Court abused its discretion in refusing to permit both Rutger Penick and Agent Tejeda/IRS to testify.  The IRS refunds listed below, and addressed in Leonard Cohen and Robert Kory’s testimony, have now been formally challenged as fraud with the IRS.  The only documentation/evidence of what the IRS or Treasury may or may not be doing with respect to Leonard Cohen’s tax fraud is Agent Kelly Sopko’s email below.  Agent Sopko wrote and advised Lynch to report Cohen’s tax fraud to Agent Tejeda/IRS and provide the IRS with evidence.  There is no evidence - whatsoever - that the IRS or FTB are pursuing Petitioner.  They requested her tax returns for the years 2004 and 2005 but Petitioner owes the IRS and FTB no money and finds the line of questioning regarding her federal tax returns and all tax matters alarming.

Excerpt of Information in IRS Binder.

Tab 2 - Letter from Robert Kory to Internal Revenue Service dated December 13, 2005 regarding Tentative Refund Application 1037704856.  This letter - to IRS/Fresno - confirms receipt of Form 6762 regarding the Request for Missing information to Complete Tentative Refund Application.  

Tab 3 - Letter 662C from IRS dated February 3, 2006 confirming Tax Refund for Leonard Cohen for tax periods December 31, 2001, December 31, 2002, and December 31, 2003.
This form confirms that the IRS is processing Cohen’s request for adjustment, dated December 13, 2005.  The IRS encloses copies of the corrections made to Cohen’s form 1045 (Application for Tentative Refund).  It confirms that Cohen will receive the following refunds - $557,196.00, $56,725.00, and $50,919.00 within 4 to 6 weeks.  

Tab 4 - Letter from Robert Kory to Agent Luis Tejeda/Internal Revenue Service Fraud Unit Division of the Western United States dated March 9, 2007.

In response to Agent Sopko’s March 6, 2007 email to me, Robert Kory contacted Agent Tejeda/IRS and follows up his phone call with a letter.  Agent Sopko’s email reads as follows:

Good afternoon Ms. Lynch,

Per our meeting last week, I have found a solid IRS contact that will be better able to assist you.  His name is Luis Tejeda, and he is the head of a fraud group at IRS.  I spoke with him today and advised him that I would be passing on his contact information to you.  

office phone and address noted.

He emphasized that you will need to put something in writing - a summary of all important details, with as much specificity as you have.  (For example if you have copies of any paperwork involved, or social security numbers of people involved …)  Once you pass the information on to him, he will review it and proceed accordingly.  As standard practice, you will not get confirmation that your information was received.  However, you may contact Tejeda to follow-up.

I hope that this information is helpful to you.  If there is anything else I can assist you with, please be sure to let me know.

Kelly A. Sopko
Special Agent
Treasury IG for Tax Administration (TIGTA)
Special Inquiries & Intelligence Division

Kory notes, in his letter, that Petitioner had publicly alleged that she was reporting Cohen to the IRS for tax fraud.  While that was a “nuisance,” the situation had changed.  “Ms. Lynch has managed to obtain a return email from Special Agent Kelly Sopko, the contents of which” Kory read to Agent Tejeda.  Kory goes onto falsely state that Petitioner was using communications from the Internal Revenue Service to defame Mr. Cohen and to use the threat of an IRS investigation to attempt to “extort” resolution of civil claims.

Tab 5 - Letter from Robert Kory to Agent Luis Tejeda dated March 11, 2007 re. allegations made by Kelley Lynch against Leonard Cohen.  Excerpt:  While I understand that you must be open to Ms. Lynch’s allegations, I would ask that you take whatever steps might be in your power to limit communications that she can then use to further “defame” Leonard Cohen.

Excerpt from Respondent’s Reply Brief  Appellant fails to establish the court abused its discretion at bar.  Appellant testified extensively regarding her tax predicament.  Cohen acknowledged appellant’s slight concern regarding her tax issue when he testified “hidden in the volume of emails there was a requirement for tax information which defendant already had.” (RT 281)  Under these circumstances, Tejeda’s testimony was cumulative.  Further, Tejeda was not available and ready to testify on the basis the judge did not want to delay the trial when appellant had known of the witness long before trial and Tejeda was “quite tangential of the merits of the IRS thing.” (RT 432)  

Leonard Cohen perjured himself - as did his lawyer, Robert Kory - when they testified that Petitioner was in receipt of tax information she requires.  Neither Petitioner nor the IRS is in receipt of the IRS required Form 1099 from Leonard Cohen to Kelley Lynch for the year 2004.  Petitioner has just confirmed this with the IRS.  No evidence was presented supporting the testimony that Petitioner received form 1099.  Agent Tejeda never advised the public defender that he was not available and not ready to testify.  Petitioner was told that Agent Tejeda was meeting with IRS or DOJ attorneys regarding his testimony the morning the judge sent the case to the jurors - after refusing to wait until noon for a confirmation from Agent Tejeda/IRS.  Agent Tejeda’s testimony would not have been cumulative.  The prosecutor presented the defense with an IRS binder that revealed material information that Petitioner was previously unaware of and had no ability to determine on her own due to IRS privacy rules.  Leonard Cohen and Robert Kory testified about an IRS refund.  Petitioner had no idea what they were talking about.  The prosecutor advised the judge about an IRS holding with respect to Leonard Cohen’s default judgment.  There is no evidence of that anywhere on the record or in the IRS binder.  The IRS binder also contains documents related to  Leonard Cohen’s retaliatory lawsuit against Petitioner.  Agent Luis Tejeda/IRS could easily have testified that the IRS requires parties to provide tax forms, such as a 1099, to employees and that there can be steep penalties involved for not doing so and that K-1s are illegal when an individual is not a partner on an entity and the issuing party refuses to rescind them.  Robert Kory testified that Petitioner asked that the K-1s be withdrawn.  He also testified fraudulent that the IRS and FTB are pursuing me relentlessly.  It is also entirely possible that Agent Tejeda (head of fraud for the Western Division of the United States) would have testified that the actual components of an accounting include corporate ownership interests, asset valuations, liabilities, and equity as well as addressing the fact that loans are considered corporate assets given the fact that the prosecutor misled the jurors when she questioned Appellant over Traditional Holdings, LLC assets and indicated that the account had dwindled to approximately $150,000.00.  Robert Kory did indeed see a request for an appropriate accounting re. Petitioner’s ownership interest in certain corporate entities and confirmed in his testimony that Petitioner asked that the illegal K-1s be rescinded.  These are not particularly sophisticated tax issues.  Robert Kory’s letters to Agent Tejeda/IRS (in response to Agent Sopko’/s email to Kelley Lynch) prove absolutely nothing - other than the fact that Leonard Cohen and his lawyers attempted to come up with a rather shabby defense for egregious tax fraud.  

Robert Kory Cross:  All I know is the -- she writes in her emails and she complains that the IRS and the FTB are pursuing her relentlessly.  So I don’t know the -- I suspect, but don’t know the substance of why they’re pursuing her.  (RT 423)  What I saw is a request that we change the forensic accounting.  That we withdraw a K-1.  These are fairly sophisticated concepts.  Because she saw that we were reporting, that we had reported to the IRS that money that Mr. Cohen had paid taxes on he did not receive.  And therefore, Mr. -- when we reported that to the IRS we declared a theft loss.  Mr. Cohen got a tax refund.  (RT 426) As I read them I was reading a formidable, intelligent person with sophisticated tax knowledge who had the forensic accounting and the K-1s and all the tax information in her possession, and she was requesting that we somehow modify what we had reported.  (RT 426).  Petitioner had no understanding - whatsoever - that Leonard Cohen reported anything to the IRS or declared a theft loss six months prior to entering the default judgment against Lynch and a year prior to the Treasury agents advising me to report Cohen’s tax fraud to Agent Tejeda/IRS.  The IRS recently advised Petitioner to file form 3949(a) with respect to the illegal K-1s LC Investments, LLC (Leonard Cohen’s solely owned company) and the fraudulent refund.  

Robert Kory Cross:

Public Defender:  In 2005 a lawsuit was brought against Ms. Lynch where a default judgment was entered.  Are you aware of that lawsuit, Mr. Kory?  Kory:  Yes.  Q:  And can you explain to the jury what a default judgment is?  Streeter:  Objection; relevance.  Court:  Sustained.  RT 418

Kory:  I sent him the file on -- this occurred in, I think, if I recall, March of 2007, and I think -- I think March 23, 2007, I sent Mr. Tejeda the -- all the documents so that the IRS could look into the entire matter.  RT 423  All I know is the -- she writes in her emails and she complains that the IRS and the Franchise Tax Board are pursuing her relentlessly.  So I don’t know the -- I suspect, but don’t know the substance of why they’re pursuing her.  RT 423  What I saw is a request that we change the forensic accounting.  That we withdraw a K-1.  RT 426  Because she saw that we were reporting, that we had reported to the Internal Revenue Service that money that Mr. Cohen had paid taxes on he did not receive.  And therefore, Mr. -- when we reported that to the IRS we declared a theft loss. Mr. Cohen got a tax refund.  RT 426  I was reading a formidable intelligent person with sophisticated tax knowledge who had the forensic accounting and the K-1s and all the tax information in her possession, and she was requesting that we somehow modify what we had reported.  RT 426  Showing knowledge of the forensic accounting, the implications of the forensic accounting, and the problems because we reported it all to the IRS.  It’s a Zero Sum Game.  If somebody gets a tax refund, somebody else has to pay taxes.  RT 427  Public Defender:  But at some point in some of the emails she wrote to Mr. Cohen which you were copied on, she requested tax information ... Kory:  I -- I suppose - you know, I’d have to look at specific emails, but I always recall that those requests to him, as what I thought were part of a ruse.  RT 427  I directly gave documents -- I gave all the documents required for her tax information when she was fully represented in January -- January, February, March, April 2005.  By then we had completed our forensic accounting, all the information was given to her.  RT 428  Public Defender:  It says, Änd I am litigating this in a court of law.” Do you remember hearing that on the voice mail?  Kory:  Yes.  RT 430

It is now the year 2013.  The IRS recently advised Petitioner that they are not in possession of a Leonard Cohen 1099 with respect to Petitioner Kelley Lynch for the year 2004.  The IRS also advised  Petitioner to file fraud form 3949(a) with respect to the 2004 and 2005 K-1s that Leonard Cohen/LC Investments, LLC issued Petitioner as well as with respect to the fraudulent refund Leonard Cohen obtained.  That form has now been filed with the IRS Commissioner’s Staff in Washington, DC.  

April 11, 2012 Sidebar:  Court:  What are your plans at this point?  Public Defender:  Our plans are we want to find out about Agent Tejeda.  The Court:  I will tell you my strong view is I’m not going to delay the trial for Agent Tejeda.  You guys, whether you knew his name or not, you were well aware of the relationship, if any, and I think it was quite tangential of the merits of the IRS thing long before the trial, and I’m not going to delay at this point the trial.  Public Defender:  What we would ask is he said he was going to call during the lunch hour and find out if there’s an answer that we can -- Court:  Okay.  Well you can let me know.  Public Defender:  Your ruling is not that he’s not precluded from testifying; it’s that you won’t delay the trial. Court:  I won’t delay the trial.  I’ll reserve judgment on whether I allow him to testify.  RT 432

Casualty/Theft Loss (Federal Law) - Theft Defined.  Theft is the illegal taking of money or property with the intent to deprive the owner of it. (W. Lafave, Criminal Law section 8.5, at 721 (2d Ed. 1986)).  Theft includes, but is not limited to, larceny, embezzlement, and robbery. (Reg. Section 1.165-8(d)).

Federal Law.  In the case of Gerstell (Petitioner) v. Commissioner of Internal Revenue (Respondent) 46 T.C. 161 (Docket No. 4299-64, filed May 4, 1966), the Tax Court States (at Page 7):  “Section 165 of the Internal Revenue Code of 1954 provides for the deduction of losses arising from theft.  The term Theft . . . converting any criminal appropriation of another’s property to the use of the taker, particularly including theft by swindling, false pretenses, and any other form of guile.”

Leonard Cohen, and his advisers,  knowingly and designed by false and fraudulent representation and pretense, defrauded Petitioner of real or personal property through fraudulent means and representations.  Leonard Cohen willfully concealed corporate books, records, stock certificates, notarized documents, memoranda, and Petitioner’s Indemnity Agreement, in his scheme to fraudulently obtain possession of her property and is guilty of what is ordinarily referred to as theft.  It is a false pretense to misrepresent facts , both oral and written, in a calculated attempt to deceive in order to obtain property from another without compensation.  Leonard Cohen, in LA Superior Court Case BC339322 simply filed a declaration (contained in the IRS binder) which states, in pertinent part:

“I am the sole owner of ... Leonard Cohen Investments, LLC (LCILLC), a limited liability company established in 2000 to hold certain of my intellectual property assets” and “I am also the beneficial owner of Traditional Holdings, LLC (Traditional Holdings), a limited liability company formed in 2000 to hold the proceeds of a sale of certain of my artist royalties to Sony and to provide an annuity income to me for the remainder of my life.”

Leonard Cohen filed this lawsuit in August 2005.  On the 2003 federal tax return, Leonard Cohen’s tax lawyer (Richard Westin), had extinguished the private annuity obligation without the knowledge, awareness, or approval of Petitioner.  

The attachment to the judgment, Item 6, reads, in pertinent part:  “It is declared that (1) Lynch is not the rightful owner of any assets in Traditional Holdings, LLC, Blue Mist Touring Company, Inc., or any other entity related to Cohen; (2) that any interest she has in any legal entities set up for the benefit of Cohen she holds as trustee for Cohen’s equitable title; (3) that she must return that which she improperly took, including but not limited to “loans,” and (4) that Cohen has no obligations or responsibilities to her.”

Traditional Holdings, LLC, a Kentucky entity, and Blue Mist Touring Company, Inc.,  a Delaware entity, are not named parties to this lawsuit.  The Court appears to have relied on Leonard Cohen’s declarations rather than the corporate books and records.  Leonard Cohen has taken the position that he is the alter ego of these entities and has engaged in self-dealing.  Neither of these entities were held in trust for Leonard Cohen and no trust document exists.  There was no oral agreement with respect to a trust.  Petitioner heard through her lawyers, accountant, and Robert Kory that the plan was to roll Traditional Holdings, LLC into LC Investments, LLC.  She was also advised that Blue Mist Touring Company, Inc. owns all the IP property (although she is entitled to her ownership share regardless of where it has been placed); LC Investments, LLC, Leonard Cohen, and possibly other entities collects the income; and Traditional Holdings, LLC sold something to Sony it does not own.  There are non-revocable assignments related to Petitioner’s ownership interest in the intellectual property and Leonard Cohen personally dictated a portion of the minutes confirming the assignments.  Leonard Cohen claimed, in this lawsuit, that Petitioner was paid monies in excess of authorized management fees.  It was alleged in that complaint that:  “She also controlled the books and records.”

Leonard Cohen suffered no theft loss and has attempted to convert his tax fraud into a profitable enterprise.   Under IRC §165, an individual may deduct losses arising from “fire, storm, shipwreck, or other casualty or from theft.”  

The chronology of events, as set forth in the index of the IRS binder, prove that 1) Cohen obtained a refund - or confirmation of a refund - on or around December 13, 2005 or February 3, 2006; 2) Cohen and his lawyers understood that Petitioner received an email from Agent Sopko of the Treasury, after meeting with Treasury agents, advising her to report the allegations re. Leonard Cohen’s criminal tax fraud to Agent Tejeda/IRS on March 6, 2007.  Kory contacted Agent Tejeda/IRS and read this email to him and confirmed that Petitioner had made the email available to many individuals via email; Kory followed his call up with a letter dated March 9, 2007 to Agent Tejeda/IRS confirming that Agent Sopko’s email was a game changer and acknowledged  that there was now evidence that the IRS was taking Petitioner’s allegations seriously; a meeting was scheduled for April 19, 2007; 3) Kory faxed Agent Tejeda a letter dated March 11, 2007 advising Agent Tejeda/IRS to limit communications with Petitioner that case be used to “defame” Leonard Cohen.  Kory encloses Petitioner’s public emails; 4) Kory fedexes Agent Tejeda/IRS a letter dated March 23, 2007 containing six documents re. LA Superior Court Case BC338322- including Complaint dated August 15, 2005 and Default Judgment dated May 15, 2006 and falsely accuses Petitioner of breach of fiduciary duty, common law fraud, breach of contract, accounting, conversion, and imposition of constructive trust and injunctive relief; 5) Robert Kory writes the IRS a letter dated December 20, 2008 with respect to the 1099 Traditional Holdings issued Leonard Cohen.  This 1099 reported the $8 million Traditional Holdings, LLC income to the IRS and was issued to Leonard Cohen for the total and absolute waste of assets - all loaned or distributed in accordance with his and his representatives instructions, knowledge, and awareness.  Kory advises the IRS that Cohen obtained a default judgment against Lynch with interest  and advises them that the 1099 is a violation of the Colorado restraining order they obtained in 2008.  Kory asks that the IRS disregard the 1099; 1099 to Leonard Cohen and IRS Commissioner’s Staff for the year 2008 notes that the entity was a shell company with an extinguished annuity and further advises the IRS that Cohen personally received $1 million from that sale in 1999 when the deal did not close until 2001.  Requests an IRS Opinion and addresses the LA Superior Court fraud, the fact that she was defrauded, and is in need of a proper forensic accounting for Traditional Holdings, LLC, Blue Mist Touring Company, Inc., and LC Investments, LLC, etc.  The 1099 was sent to Leonard Cohen c/o Kory, 9300 Wilshire, #200, Beverly Hills, CA 90212.  The “property”abandoned - when Cohen’s lawyer extinguished it from the federal tax return in 2003 without Petitioner’s knowledge or awareness - is the private annuity itself.  There was no fiduciary obligation with respect to Traditional Holdings and most certain not with respect to Petitioner’s ownership interest in all of Cohen’s IP dating back to 1967 or LC Investments, LLC as Lynch is not a partner on that entity.  Cohen’s tax lawyer - on his behalf  - also failed to report the TH sale to the IRS in 2001 and extinguished Petitioner’s promissory note re. TH from the federal tax returns in 2002 - using a separate ID number which was brought to Lynch’s attention by her lawyers and accountant.

With respect to to LA Superior Court Case BC338322 Complaint dated August 15, 2005 and Default Judgment dated May 15, 2006, Petitioner was not served the summons and Complaint.  The proof of service is evidence and fraud and perjury.  Petitioner had no female co-occupant - including one named Jane Doe with two black eyes.  Her son, Rutger Penick, who the Trial Court denied Petitioner the right to call to the stand, could have testified to that fact.  Leonard Cohen and his representatives were aware that Lynch was not served the summons and complaint.  Petitioner had a conversation with Robert Kory about that matter after she received evidence that they had wrongfully obtained copies of her bank statements dating back to 1998 through 2004 or 2005.  Petitioner has advised Leonard Cohen and/or his representatives not to destroy this evidence and raised issues related to spoliation with them.   

April 9, 2012 - Sidebar:  Public Defender Kelly:  At the conclusion of the morning, or right before -- or right after the morning break, counsel and I were somewhat discussing this case after the jury had left, when unbeknownst to us Juror No. 1 had been in the back and had come out.  (RT 151)  I don’t know what was heard.  We were talking about the case, something -- it was  kind of light-hearted.  I think counsel -- IRS Binder:  Streeter:  Yes.  I had gotten some documents from Mr. Kory and I gave it to defense counsel.  Kelly:  And there was -- I don't know if there was a joke or something about -- something that could -- Streeter:  I could send a messenger.  Court:  Do you want me to make an inquiry?  It seems like making a big deal out of nothing.  Kelly:  Right.  I just wanted to --  Court:  I appreciate your letting us know, but I don't think any further inquiry.  It doesn't sound like there's any potential -- Streeter:  At the point he came out we weren't even talking.  Kelly:  Right.  We had stopped, but right when he came out.  Court:  We'll try to be more careful about making sure all our jurors are out.  RT 151/152  April 11, 2012 Sidebar:  Public Defender Ramnaney:  There is one other issue about scheduling.  We received a binder (IRS Binder) from Ms. Streeter that was provided to her by one of the witnesses that includes, you know, we believe a highly relevant witness that goes to Mr. Kory’s anticipated testimony based on what she provided us.  He’s an agent of the IRS and we have subpoenaed him.  We received that information on Monday.  We subpoenaed him, he’s received that subpoena, but pursuant to Federal Regulations he has to clear that before he can testify with the appropriate authorities.  I spoke with the agent this morning.  That request if being considered and evaluated by their attorneys, and as I said, they’ll give me an answer by this afternoon regarding whether or not he will be able to testify and as to what he will testify to.  Based on the fact that we received the binder on Monday, I think me and Mr. Kelly -- The Court:  What does his testimony go to?  Ramnaney:  We believe it goes directly to the level of a specific intent element, your Honor.  That Ms. Lynch’s communications were not made with any intent to harass or annoy, and they were made in good faith.  Based on the actions taken by this agent, they fully corroborate Ms. Lynch’s intent.  We also think that on the secondary corollary matter, they go to the vice motivation of the people’s witnesses.  The Court:  Okay.  Well, I will consider that after I hear your information this afternoon.  Ramnaney:  Okay.  RT 384/385.  

It is argued that since Leonard Cohen, on the stand,  admitted having given false testimony in one instance at the trial--he acknowledged that he had testified dishonestly (or perjured himself) at the March 23rd hearing re. the dating/intimate relationship (required for a domestic violence order) -- the trial court should have distrusted other statements made in his testimony.  Furthermore, Cohen testified at the March 23rd hearing that Petitioner never stole from him  - just his peace of mind.  This statement is bolstered by his interview statement to MacLean’s in the summer of 2005 (in anticipation of his retaliatory lawsuit) that he was not accusing Petitioner of theft.  To make matters worse, the prosecutor is concealing an email that impeaches Leonard Cohen’s testimony that Phil Spector held a gun to his head.  The prosecutor provided Petitioner’s lawyers with an email dated April 5, 2012, wherein Leonard Cohen states - unequivocally - that Phil Spector held a gun to his neck.  In statements the prosecution used in the Phil Spector matter  (including their motions which are readily available on LA Superior Court’s website and elsewhere on the internet), Leonard Cohen’s version of events involves a gun being held to his chest.  This version of events further differs from Cohen’s testimony at Petitioner’s trial because he testified that the gun was an automatic while the version used by the Phil Spector prosecutors involves a semi-automatic.  Additional false testimony involves the IRS required 1099 for the year 2004.  The IRS recently confirmed that they do not have a 1099 from Leonard Cohen for Kelley Lynch re. 2004.  Another issue that was the subject of false testimony and deception on the part of the prosecutor has to do with illegal K-1s transmitted to the IRS by LC Investments, LLC (a wholly owned company of Leonard Cohen’s - his declaration is contained in the IRS binder and proves this fact) - stating that Kelley Lynch is a partner on this entity.  The K-1s are for the year 2004 and 2005, show $0 income, and wholly undermine - as do other issues - the fraudulent expense ledger that was part of the default judgment and contained in the IRS binder.  (Code Civ. Proc., § 2061, subd. 3; see People v. Kennedy, 21 Cal.App.2d 185, 201 [69 P.2d 224].) Thus the trial court would be warranted in rejecting as false defendant's statement.  Robert Kory testified that he provided my representatives with all tax documents in 2005.  Additionally, with respect to IRS matters (and the IRS binder, as well as his testimony at trial), Robert Kory testified that Petitioner read an ad advising her to report Leonard Cohen’s tax fraud to the Internal Revenue Service.  Petitioner was advised by Agent Bill Betzer of the IRS, on or around April 15, 2005, to bring the allegations of Leonard Cohen’s tax fraud into the IRS with a lawyer.  He shortly thereafter advised Petitioner to report the tax fraud to the IRS via their Fraud Hotline.  Agent Bill Betzer/IRS was raised in Neal Greenberg’s lawsuit against Leonard Cohen in the Denver District Court.

Leonard Cohen and his lawyers repeatedly lied throughout their testimony.  This testimony was material.  The jurors were given distrust language that set forth a principle for evaluating witness credibility.  The instructions allow the jury to disbelieve a witness who deliberately lies about something significant because experience should teach people that a deliberate liar cannot be trusted.  The prosecutor concealed, among other things that will be discussed below, the email impeaching Cohen’s testimony about Phil Spector and his testimony at the March 23rd hearing that Petitioner stole nothing from him but his “peace of mind.”   That brings us to the newly discovered evidence in the iRS binder.  Leonard Cohen testified that the IRS provided him with a refund and essentially supported and upheld the default judgment in the unrelated retaliatory lawsuit.  The IRS binder incontrovertibly proves otherwise.  This binder was discussed at sidebars - as was Agent Luis Tejeda of the Internal Revenue Service who is the only individual raised at this trial who could have possibly testified about evidence that Petitioner could never have obtained in any reasonable manner other than breaking into the IRS and accessing their computer system which seems both illegally and unreasonable in the extreme.  Agent Tejeda/IRS is, therefore, essentially an expert witness and Petitioner finds it difficult to believe that she would subpoena Agent Tejeda/IRS if he or they were in hot pursuit of her as Robert Kory testified and Leonard Cohen fraudulently alleged in his Victim Impact Statement.

At the April 4, 2012 hearing, Petitioner advised the judge that she would like to present witnesses via video-conferencing since she - unlike the prosecutor and prosecution witnesses - was disadvantaged in terms of presenting a defense due to financial inequities.  The judge denied this request further depriving Petitioner of a fair trial.  The witnesses Petitioner intended to subpoena and present (via video-conferencing) included but were not limited to:  the IRS Commissioner’s Staff, Agent Kelly Sopko/U.S. Treasury, Doug Davis/FTB, David Boies/Boies Schiller, Greg McBowman, Arthur Indursky, Don Friedman, Stuart Fried, Stuart Bondell/Sony, Paul Burger (former President Sony Europe), Don Ienner (former President Columbia Records), Mick Brown (UK Telegraph - Phil Spector biographer), David Pullman, Ann Diamond, Doron Weinberg, Dennis Riordan, and Phil Spector who also has confrontation clause issues with respect to Petitioner’s case.  

Videoconferencing refers to the use of interactive telecommunications technologies for witness testimony via simultaneous two-way video and audio transmissions. This technology allows for a witness to testify from a room adjoining the courtroom via closed-circuit television or from a distant or undisclosed location through an audio-visual link. In the courtroom setting, a judge, the defendant, the defence counsel and the prosecutor can ask questions of the witness and see and hear the witness’ answers and demeanour in real time transmission.  The use of videoconferencing appears to pose a number of challenges for States. Firstly, there is the need to become familiar with the technology and its use in a court setting. In this regard, it is important to note that technology is rapidly advancing and high-definition images are sufficiently clear to allow a judge to easily observe all aspects of the demeanour of a witness.  Ordinarily, debate about the legality of remote testimony centers on its constitutionality under the Sixth Amendment.  The Compulsory Process Clause provides simply that, “In all criminal prosecutions, the accused shall enjoy the right … to have compulsory process for obtaining witnesses in his favor….” In Chambers v. Mississippi, 410 U.S. 284 (1973), the Supreme Court held the clause to be sufficient to override a state prohibition on declarations against interest when on the facts of the case the evidence was probative and necessary.  Chambers gives rise to a generalized right to present probative evidence for a criminal defendant.  If remote testimony is sufficiently probative and trustworthy, the defense should have a constitutional right to it in accordance with one’s right to a fair trial.  

In an unusual although not unprecedented act, the U.S. Supreme Court, with Justices
Breyer and O’Connor dissenting, refused to transmit the proposed rule to Congress. Instead, Justice Scalia wrote:   “As we made clear in Maryland v. Craig, 497 U.S. 836, 850 (1990) - a purpose of the Confrontation Clause is ordinarily to compel accusers to make their accusations in the defendant’s presence — which is not equivalent to making them in a room that contains a television set beaming electrons that portray the defendant’s image. Virtual confrontation might be sufficient to protect virtual constitutional rights; I doubt whether it is sufficient to protect real ones.”  Justice Scalia’s argument is deficient and indicates that he does does not embrace technological advances, the development of virtual reality and imaging/transmission, while deeply wedded to traditional tools of the justice system that are outmoded and ultimately deprives those less fortunate of justice itself.  Modern remote testimony satisfies the Sixth Amendment confrontation clause and its requirement that denial of such confrontation is necessary to further an important public policy.  It is worth noting that absent video-conferencing, the testimony of unavailable witnesses in a criminal case may be had only by deposition or hearsay.   Although the Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004), prohibits prosecutorial use of “testimonial hearsay,”  it does not ban other forms of hearsay. Presumably, live cross-examination of a remote witness under oath, complete with demeanor evidence, would be superior to hearsay.  

Petitioner’s due process and fair trial were were violated when the Trial Court did not allow Agent Tejeda/IRS, Rutger Penick - and others via video-conferencing - to testify.