| From the Desk of David M. Garvin, Esq. |
| Volume 106 | Page 1 of 5 | June 2010 |
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| From the Desk of David M. Garvin, Esq. |
| Volume 106 | Page 2 of 5 | June 2010 |
Sherman was charged with seven counts, alleging violations of 26 U.S.C. § 7206 for making false declarations on both his personal and corporate federal tax returns for the years 2002 through 2004.
Following the Franks hearing, the magistrate judge filed a report and recommendation, the magistrate judge also concluded the Franks standard only applies to government agents, therefore, there was no Franks violation and probable cause existed for the issuance of the search warrants.
Sherman filed a detailed affidavit in support of his request for a Franks hearing and his motion to suppress the evidence seized under the search warrant.
Sherman entered conditional guilty pleas to one count of making a false declaration on his 2003 personal income tax return and one count of making a false declaration on his 2004 corporate income tax return in violation of 26 U.S.C.§ 7206(1).
David M. Garvin, Esq.
At sentencing, Sherman objected to the district court's refusal to allow expert testimony on the tax dollar loss for purposes of calculating his advisory guideline range.
Sherman was sentenced to two months incarceration on each count, to be served concurrently, followed by one year of supervised release.
The appeal followed, on which Sherman claims the district court erred at sentencing by not allowing him to present expert testimony to show the actual tax dollar loss suffered by his failure to report all income was under the threshold of $ 30,000 contained in United States Sentencing Guideline § 2T4.1(E).
To achieve this end, Sherman intended to introduce new, accelerated depreciation costs and tax benefits on all the tax returns in question. Had this evidence prevailed, Sherman argues his guideline range would have allowed a sentence of home detention and probation. U.S.S.G. § 5C1.1©, Sherman also claims the district court erred in not applying the rationale of United States v. Gordon, 291 F.3d 181 (2d Cir. 2002). The Court found Gordon to be factually distinguishable.
The court found that the "total amount of loss that was the object of the offense" under section 2T1.1(c)(1) was $ 54,058, this figure was what Sherman sought to avoid paying in taxes by failing to properly report income and making false declarations on his tax returns, under the particular circumstances of this case, the district court properly considered section 2T1.1(c)(1) and Sherman's plea for leniency in imposing a sentence at a level below the recommended guideline range. United States v. Moore, 581 F.3d 681 (8th Cir. 2009).
The judgment of the district court was affirmed.
Defendant Richard Davis was convicted for acting and assisting in the preparation of false tax returns for co-defendant Madison Lee Oden. During the 1990s and for tax years 2000 through 2002, Davis prepared Oden's personal federal tax returns. Oden signed and filed these returns with the IRS.
In November 1994, the IRS issued a notice of deficiency to Oden that disallowed certain
expenses reported on his 1991 Form 1040 for Oden's home-based "auto finance/sales" business.
The IRS later audited Oden's 1993 Form
1040, which Davis had prepared. It was determined that Oden had failed to substantiate deductions for the alleged losses that his auto finance business and two partnerships had suffered. In taxes years 2000 through 2002, Davis prepared Oden's Forms 2040, but
those contained deductions that were similar to those that the IRS had disallowed previously. Davis informed Oden that the returns were correct, and Oden accepted Davis's word
without challenge.
Davis and Oden were charged in a nine-count indictment, with one count of conspiracy to defraud the U.S. by impeding, impairing, and obstructing the functions of the IRS in violation of 18 U.S.C. § 371 in October 2006. Oden was also charged with four counts of filing false federal tax returns for calendar years 1999 through 2002 in violation of 26 U.S.C. § 7206(1), and Davis was charged with four counts of aiding and assisting in the filing of Oden's false returns for calendar years 1999 through 2002, in violation of 26 U.S.C. § 7206(2).
On appeal, the defendant claimed that the government failed to prove beyond a reasonable doubt that he aided in preparing false tax returns, but the judgment of the district court was affirmed.
Defendants Rozin and Kallick first began being investigated by the Government because it was suspected that they received kickbacks
that they failed to report to the Internal Revenue Service. The investigation later shifted due to unusually large insurance deductions
on their company's corporate tax returns.
The Government later suspected wrongdoing related to various loss of income insurance policies purchased by Rozin and Kallick from Co-Defendants Liss and
Cohen. Specifically, the Government believed the policies to
On October 5, 2005, the Government charged Rozin, Kallick, Koehler, Liss, and Cohen in a multi-count indictment alleging that Defendants conspired to defraud the United States by impeding in the lawful functions of the Internal Revenue Service in the ascertainment, computation, assessment (Continue)
and collection of federal income taxes.
Defendants Rozin and Koehler pled not guilty and chose to go to trial in this matter. Kallick pled not guilty as well, but passed away prior to trial. Liss and Cohen initially pled not guilty, but later entered guilty pleas. Defendant Rozin was found guilty by a jury verdict on April 29, 2008 of three counts.
The court denied defendant's motion for judgment of acquittal.
The record for this case demonstrates that on December 9, 2004, the Defendant was indicted on charges of tax evasion (Count 1) and subscribing to a false tax declaration (Count 2).
The Defendant was tried by a jury from August 23, 2005, through September 1, 2005. On September 1, 2005, the jury returned guilty verdicts on both counts.
| From the Desk of David M. Garvin, Esq. |
| Volume 106 | Page 3 of 5 | June 2010 |
On February 4, 2006, Defendant was sentenced to a total term of 70 months imprisonment. Defendant was also sentenced to a total term of 3 years supervised release. He was fined for a total of $ 500,000. Judgment and Commitment was entered on March 7, 2006.
Defendant filed a direct appeal at the Tenth Circuit Court of Appeals. Continuing to be represented
by attorney Monroe, Defendant raised
On August 16, 2007, the Tenth Circuit rejected each of Defendant's claims, except his claim challenging the validity of the fine imposed by the trial court. On January 13, 2009, Defendant, appearing pro se, filed the 28 U.S.C. § 2255 motion. He identified four grounds of error, including lack of subject matter jurisdiction predicated on
Defendant's alleged lack of taxable income for 1990 and 1991 tax years], and insufficient evidence to prove a deficiency or willfulness.
Defendant stated that none of his four claims were raised on direct appeal due to ineffective assistance of counsel, but the government asserted that the claims were in fact raised on direct appeal.
The government further asserted that Defendant's claim of ineffective assistance of counsel as identified in the 2255 motion lacked merit and Defendant was not entitled to relief. The Defendant's appeal was denied.
Parker pleaded guilty to 11 counts of an indictment charging him with conspiracy, wire fraud, money laundering, tax evasion, filing afalse income tax return, and aiding and abetting related to various fraudulent loans guaranteed by the United States Export-Import Bank (Ex-Im Bank).
(Continue)
In the case of David Young, the Government requested a motion in Limine to determine if evidence, which the Government contended was intrinsic to the crimes, could be admissible. The three evidentiary issues were: Young's activities before Sept. 9, 2004, a period
outside the stature of limitations; Young's use of converted funds to support his mistress; and Young's misuse of a government credit card while serving in the U.S. Air Force.
The Court granted the Government's Motion
in Limine in part and denied it in part. The Court granted the Government's motion to the extent the Government sougt to admit evidence of events before September 9, 2004 under Rule 404(b). The Court denied the Government's motion to introduce evidence of Young's
alleged use of Governmental proceeds to pay money to his mistress, and further ordered the Government to give fair notice before seeking to admit such evidence in cross-examination or rebuttal. (Continue)
| From the Desk of David M. Garvin, Esq. |
| Volume 106 | Page 4 of 5 | June 2010 |
In this appeal, Parker contends that his guilty pleas to the conspiracy, wire fraud, and money laundering counts should be vacated because the factual bases for his pleas failed to establish essential elements of the offenses.
The court concluded that, assuming that the district court committed clear error, Parker has not shown that his substantial rights were affected. Parker's actions were audacious and systematic and resulted in a loss to the Government exceeding $ 100 million.
Parker benefitted greatly from the plea agreement as his total imprisonment was a total of 10 years, instead of theoretical maximum sentence of 50 or 60 years.
The record reflects that his guilty pleas were knowing and voluntary.
The judgment is affirmed.
Defendants were charged with conspiracy to traffic in contraband cigarettes and trafficking in contraband cigarettes.
The Government advanced criminal forfeiture allegations, and sought forfeiture of more than $4.1 million. Defendants countered that the calculations reflected the total value of cigarettes, rather than the illegal
profits based on failure to collect taxes or failure to comply with pre-notifications. Government did not dispute that it was seeking the total value at issue. Defendants sought to strike the forfeiture allegation, but the motion was denied without prejudice to bring a new motion on the forfeiture issue at a later date.The record reflects that his guilty pleas were knowing and voluntary. The judgment was AFFIRMED.
The Court also denied the Government's motion to admit evidence of the Defendant's misuse of a Government credit card while he was in the United States Air Force in 1993.
David M. Garvin is an attorney who’s practice concentrates in the area of white collar crime defense. Mr. Garvin was admitted to the Florida Bar in 1982. He holds a Juris Doctor Degree from the University of Miami (1982) and a LLM in Taxation from the University of Miami (1987). Mr. Garvin is certified by the Florida Bar as a Tax Specialist (1990). Mr. Garvin is also a licensed Certified Public Accountant in Florida since 1982. Mr. Garvin is admitted to practice before the United States Supreme Court, the Eleventh Circuit Court of Appeals, the Eight Circuit Court of Appeals, the Sixth Circuit Court of Appeals, the United States District Courts for the Southern, Middle and Northern Districts of Florida, the Florida Supreme Court, and the United States Tax Court.
| From the Desk of David M. Garvin, Esq. |
| Volume 106 | Page 5 of 5 | June 2010 |
Mr. Garvin’s Martindale-Hubbel rating is "AV". He is listed in the Pre-Eminent Bar Register as a criminal attorney and as a tax attorney. He is also listed in Super Lawyers.
The Tax Fraud Case Report is a newsletter reflecting the latest tax fraud cases. The content is not legal advice and should not be relied upon. Taxpayers and their professionals are encouraged to contact a Florida Bar Certified Tax Specialist with criminal trial experience before making any decision concerning a matter with the IRS that may become criminal in nature. For more information contact:
