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Selecting a Criminal Attorney, When Winning is Your Only Option, Revisited

Selecting a Criminal Attorney, When Winning is Your Only Option, Revisited

Selecting a Criminal Attorney: If you learned that you were the target of a federal investigation, who would you call? How would you select a lawyer to represent you? In October of 2016 this blog discussed a number of factors that affect the outcome of federal criminal jury trials. This subject matter is revisited with newly published data by the United States District Courts.

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Motion to Suppress Evidence from Search Warrant Obtained by Deception, U.S. v. Stenlin, 2010-1 U.S.T.C. P50,212 (N.D. TX 2010)

Taxpayers charged with filing false tax returns sought to suppress evidence obtained through the execution of two search warrants based upon alleged deception by the agents. Alternatively, Defendant requested a Franks hearing. See, Franks v. Delaware, 438 U.S. 154 (1978).

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Concealment of Fraud Extends the Statute of Limitations

Indictment Charging Tax Evasion Was Not Barred By the Statute of Limitations Even though the Tax Return Had Been Filed More Than Six Years Earlier Because the Taxpayer Provided Bogus Documents to the IRS Subsequent to the Filing of the Tax Return to Conceal the Fraud.

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Civil Tax Lawyer & Conflict in Criminal Tax Trial

Taxpayers Were Convicted of Tax Evasion and Conspiracy. Defendants Alleged That Their Civil Tax Lawyer Had a Conflict of Interest Because He Rendered Tax Advise that Was In Issue at the Trial But Acted as Criminal Trial Counsel For One of the Defendants. Defendants Moved for New Trial Based Upon This Conflict. The convictions were affirmed.

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OFFSHORE VOLUNTARY DISCLOSURE PROGRAM

The Offshore Voluntary Disclosure Program continues to be offered by the IRS to encourage taxpayers who have failed to accurately report funds held in foreign bank accounts and income derived abroad to make full disclosure and avoid potential criminal sanctions

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Due Process May Require a Hearing and Court Order to Re-indict Charges Dismissed Pursuant to a PLea Agreementes Pu

Plea agreements often call for the Defendant to plead guilty to certain counts of the indictment and for the government to dismiss the remaining counts. Occasionally, the government asserts that the Defendant has violated the plea agreement and the United States seeks to re-indict the counts it has dismissed. However, if this occurs after the defendant has been sentenced and has served his sentence, due process requires the government to move for the Court to declare the defendant in violation of the plea agreement and grant the government leave to convene the grand jury to re-indict the defendant on the charges previously dismissed. The government cannot summarily declare the defendant in breach of the plea agreement and re-indict him without a determination by the court. This situation occurred in the following tax case.

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The Federal Sentencing Guidelines Treat All Tax Crimes the Same.

The recommended sentence under the Federal Sentencing Guidelines for one or more tax violations is largely determined by the calculated tax loss. State taxes may be included in the calculation. Cash expenditures, under certain circumstances, may be excluded from the calculation. The Federal Sentencing Guidelines do not make a distinction between felony tax violations and misdemeanor tax violations. As a result, a taxpayer found not guilty of the felony counts but guilty of the misdemeanor counts may serve the same amount of time as if convicted for a felony. This occurs when the Court orders that the misdemeanor sentences be served consecutively instead of concurrently.

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Government Failed to Prove Income Tax Evasion When it Failed to Present Evidence of Concealment

In case charging wire fraud, tax evasion, aggravated identity theft, and money laundering, the Government established that Defendant committed a fraudulent scheme to acquire money but, did not present evidence that proved that the Defendant attempted to conceal the funds to evade taxes. Further, to prove charges of wire fraud, proof of use of the internet alone is insufficient to establish that information was sent across state lines and, to prove aggravated identity theft, the Government must prove the Defendant knew the victim was a real person.

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