CHHABRA v. USA LEXIS 118167 (S.D. NY 2010)

Petitioner sought to vacate his income tax evasion conviction pursuant to 7201 to avoid being deported. Petitioner filed for a writ of error coram nobis.     A writ of error coram nobis is an "extraordinary remedy" authorized under the All Writs Act, 28 U.S.C. §1651(a), generally sought to review a criminal conviction where a motion under 28 U.S.C. §2255 is unavailable because petitioner is no longer serving a sentence.     A federal court can only grant coram nobis relief if a petitioner demonstrates that: 1) there are circumstances compelling such action to achieve justice; 2) sound reasons exist for failure to seek appropriate earlier relief; and 3) the petitioner continues to suffer legal consequences from his conviction that may be remedied by granting of the writ.     The Court found that Chhabra was aware of the potential immigration issues prior to the Judge Chin's acceptance of his guilty plea. The petition was denied.

USA v. BLANCHARD 618 F.3d 562 (6th Cir. 2010)

Blanchard was convicted in the United States District Court for the Eastern District of Michigan of failure to account for and pay payroll taxes, 26 U.S.C. §7202 and making and causing the making of a false tax refund claim, (18 U.S.C. §287). He was sentenced to 22 months imprisonment.     Blanchard appealed and argued that the government failed to prove he had funds to pay the tax or that he had a bad motive and intent to disobey the law.

David M. Garvin, Esq.

He also argued that the statute of limitations was 3 years and it had expired. The Court found that  willfulness was repudiated in Pomponio. Insofar as United States v. Poll, 521 F.2d 329 (9th Cir. 1975) may be interpreted as requiring the government to prove that defendant had the money to pay taxes when due Poll is inconsistent with Pomponio.    Under the United States Supreme Court's decision, "willfulness" simply means a voluntary, intentional violation of a known legal duty.    Thus, in order to secure a conviction under 26 U.S.C. §7202, the Government must demonstrate that such a violation occurred, but there is no additional requirement that it show beyond a reasonable doubt that a defendant has sufficient funds to meet his obligations.    Federal Courts of Appeals have looked to the plain language of 26 U.S.C. §6531 in concluding that a willful failure "to pay" taxes includes a willful failure "to pay over" withheld taxes. In the words of the United States Court of Appeals for the Third Circuit, under a plain reading of this statute, violations of 26 U.S.C. §7202 are subject to a six-year statute of limitations under §6531(4). Specifically, 26 U.S.C. §7202 makes it an offense for an employer to willfully fail to account for and pay over to the IRS taxes withheld from employees.

Given that §6531 pertains to failing to pay any tax, failure to pay third party taxes as covered by §7202 constitutes failure to pay any tax, and thus, is subject to the six-year statute of limitations under §6531(4). It would be inconsistent for Congress to have prescribed a six-year limitation period for the misdemeanor offense defined in 26 U.S.C. §7203 while providing only a three-year limitation period for the felony offense defined in §7202. While providing only a three-year limitation period for the felony offense defined in    §7202.

USA v. BRODNIK 710 F. Supp. 2d 526 (S.D. WV 2010)

Defendants, a doctor and an attorney, were charged with violating U.S. tax laws and conspiring to commit tax fraud based on an employee leasing scheme.              Defendants moved to dismiss the indictments, the doctor moved for  discovery and to strike certain expert testimony, and the government moved to disqualify the doctor's counsel.    The indictments were based on a scheme whereby the doctor was treated as a leased employee of an Irish entity for tax purposes. In adopting the magistrate's recommendation, the court declined to consider most of defendants' objections because they were not specific and particularized. The court rejected the doctor's contention that the magistrate ignored the definition of non-qualified deferred plans and erred in ruling on his claim that the law in this area was ambiguous, finding that this argument missed the point because the indictments did not allege that the deferred compensation plan was illegal, but rather that the deferred compensation plan was used for the illegal purpose of evading income taxes.

USA v. CICCOLINI, LEXIS 120292 (N.D. OH 2010)

This case presented the Court with a very unusual set of facts. On July 13, 2010, the United States filed an information charging Defendant Samuel Ciccolini with one count of structuring bank transactions to evade reporting requirements in violation of 31 U.S.C.§5324(a)(3) and one count of making a false income tax return in violation of 26 U.S.C. § 7206(1). On July 23, 2010, the Defendant pled guilty to both counts. On October 20, 2010, Defendant Ciccolini appeared before the Court for sentencing.    The Court found that Ciccolini had established a number of charities and after they became successful he embezzled over $3,000,000 which he deposited in cash in amounts under $10,000. The Court wrote a 10 page explanation of the sentence and ultimately sentenced the defendant to 1 day and restitution of $3,500,000 even though the crimes charged did not establish the loss.

USA v. GROSS, LEXIS 23286 (6th Cir. 2010)

Defendant was convicted of three counts of attempting to evade or defeat tax, three counts of making and subscribing to a false tax return, and one count of presenting a fictitious financial instrument. The United States District Court for the Eastern District of Michigan, at Detroit, sentenced him to 21 months of imprisonment.    Defendant appealed and challenged the venue of the trial and his obligation to file a return. The Court found that Defendant never challenged venue prior to trial, despite the fact that the alleged defect was readily apparent on the face of the indictment. As a result, defendant had waived any objections. The court also concluded that under either 26 U.S.C.§7201 or §7203, defendant was

not excused from filing a tax return simply because the IRS obtained his W-2 form from his employer. Additionally, even if 44 U.S.C. §3512 excused defendant's failure to file a 1040 form, the excuse was not relevant to his conviction for attempting to evade payment of his taxes.

USA v. ALI 616 F.3d 745 (8th Cir. 2010)

Ali was convicted in the United States District Court for the District of Nebraska under 26 U.S.C. § 7206(2) of aiding and assisting in the preparation of false individual income tax returns. Defendant appealed.    Ali operated a tax return preparation business. He was accused of preparing tax returns that claimed dependents and credits of which taxpayers were not entitled and of taking a portion of the larger refund.     Ali claimed that an exhibit that included bank records and a letter from bank employee was testimonial and violated the Confrontation Clause. The court of appeals held that the records were non-testimonial; although the letter was arguably testimonial, its admission did not affect  defendant's substantial rights.  Testimony of taxpayers whose

returns did not form the basis of any of the charges was admissible under Fed. R. Evid. 404(b) to show intent, as defendant claimed that he did not have knowledge that the representations in the returns were false. An Internal Revenue Service agent's testimony that signatures on tax forms appeared similar to the signatures on defendant's bank and fingerprint cards was admissible under Fed. R. Evid. 901 and 701. The evidence was sufficient for conviction; it was up to the jury to resolve any contradictions in testimony.     The conviction was affirmed.

USA v. SNIPES LEXIS 123180 (N.D. FL 2010)

On February 1, 2008, after fourteen days of trial, the jury returned its verdict. The Defendant Snipes was convicted of three counts charging misdemeanor offenses involving willful failure to file his income tax returns for the years 1999, 2000 and 2001. He was acquitted by the jury of other charged offenses, including two felonies. The unanimity of the jury was confirmed by polling.    Sentencing was held on May 1, 2008. Defendant Snipes was sentenced to consecutive terms aggregating three years imprisonment. He appealed, and was at liberty on bail pending appeal. He remains at liberty now.     The Court of Appeals issued its opinion on July 16, 2010, affirming in all respects the Defendant's conviction and sentence. United States v. Snipes, 611 F.3d 855 (11th Cir. 2010). Petition for rehearing and rehearing en banc was     denied on September 29, 2010, and the mandate issued on October 7, 2010.     In the meantime, on July 23, 2010, shortly after the Court of Appeals filed its opinion (but before issuance of its mandate), Defendant Snipes filed a motion for permission to interview jurors about possible misconduct.    (Continue)

USA v. SNIPES (Continued)

This was followed a few days later, on August 3, 2010, by a second motion for permission to interview jurors.      The Court held that the motion for permission to interview jurors and the second motion for leave to interview jurors, were both denied. The amended motion for a new trial was denied. The judgment of commitment entered on May 1, 2008 was affirmed in all respects by the Court of Appeals and issued as a mandate on October 7, 2010.     The Court stated that: “the judgment of commitment is due to be, and is, enforced pursuant to the mandate of the Court of Appeals. The motion of the United States to revoke bail is granted, and the Defendant's Motion for Bail Pending Rule 33 Motion is denied".  See United States v. Kelly, 790 F.2d 130, 139 (D.C. Cir.1986) (The Bail Reform Act of 1984 does not provide for bail pending appeal from the denial of a motion for new trial made pursuant to Fed. R. Crim. P.33); Cherek v. United States, 767 F.2d 335, 337-38 (7th Cir. 1985) (The Bail Reform Act does not apply to a convicted defendant seeking post conviction relief.). To the extent that the Court has inherent  discretion to grant bail pending an application for certiorari and/or an appeal from denial of a post- affirmance motion for a new trial, the Court would, and does, exercise that discretion against granting any further delay in the execution of the judgment entered over two and a half years ago. The Defendant  Snipes had a fair trial; he has had a full, fair, and thorough review of his conviction and sentence by the  Court of Appeals; and he has had a full, fair, and thorough review of his present claims, during all of which  he has remained at liberty. The time has come for the judgment to be enforced.           The Defendant, Wesley Trent Snipes, is ordered and directed to surrender himself

for execution of  sentence upon receipt of notice from the United States Marshal or the Bureau of Prisons as to where, when and to whom he should report for that purpose".

DAILY BUSINESS REVIEW  Announces the MOST EFFECTIVE LAWYERS OF 2010.

The Daily Business Review has announced its selections for the Most Effective Lawyers of 2010. Selections for approximately ten categories were made from the 12,000  members of the Florida Bar located in Miami Dade County.     The selections were announced at an event held on Friday, December 3, 2010 at the Four Seasons Hotel with over 300 lawyers in attendance. This year's winners were featured in a special section of the Daily Business Review circulated on Monday, December 6, 2010.     Mr. Garvin was selected as the Most Effective Lawyer for 2010 in the category of Complex Litigation. Congratulations to all of this year's finalists and winners.

Information on the author

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.      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.