U.S. v. COPLAN, 2012-2 U.S.T.C. P50,695 (2nd Cir. 2012)
Defendants, three attorneys and an accountant, tried in the Southern District of New York, raised several challenges on appeal. Defendants' asserted that the Klein conspiracy theory of criminal liability under 18 U.S.C. § 371 failed under the law of the Second Circuit. They also asserted that the convictions of attorneys two and three on Count One, charging conspiracy failed due to
insufficient evidence; and their convictions on Counts Two and Three, charging tax evasion in violation of 26 U.S.C.S. § 7201, also failed due to insufficient evidence; and attorney two's conviction on Count Four, charging him with obstruction of the IRS in violation of 26 U.S.C.S. § 7212, failed due to insufficient evidence.
The Court found that venue was proper as to Count Six, which charged the accountant with false statements and that the district court did not err by admitting the testimony of a witness. The admission of the out-of-court statements of the alleged co-conspirators was not in error, nor was the exclusions of portions of attorney one's and the accountant's deposition transcripts. There was no prosecutorial misconduct in the Government's rebuttal summation. The district court did not err by declining to give a theory of the defense instruction or by including a conscious avoidance instruction.
The convictions of attorney one and the accountant were affirmed, the convictions of attorney two were reversed as to four counts, and the convictions of attorney three were reversed as to three counts.