Around our office we call the Justice Department Tax Division’s conviction rate the “body temperature” index. If the body’s temperature falls much below 98 degrees, something is very wrong. Ditto if a DOJ criminal tax lawyer can’t obtain a conviction in 97% of cases. This post examines the story behind the story.
U.S. District Court Judge John Gleason, a seasoned former federal prosecutor himself, claims that some federal prosecutors are using threats of decades or life in prison to coerce defendants into taking plea deals. Judge Gleason minced no words in a recent 60 page sentencing opinion; “The fact that they [threats] are business as usual doesn’t alter the fact that these sentences should instill shame in all of us.”
He also called the threat of sentencing enhancements the “equivalent of a two-by-four to the forehead.”
Gleason is no softy on crime. In 1992 he sentenced Mafia crime boss John Gotti to life in prison without parole. Prior to becoming a federal judge he served as a federal prosecutor.
Federal prosecutors “win” 97% of criminal tax cases because most people plead guilty. Judge Gleason worries that sometimes innocent people are coerced into pleading guilty simply to avoid the threat of sentencing enhancements which could double or triple a sentence.
Federal sentences are controlled by the United States Sentencing Commission’s sentencing guidelines. Congress also has a say by imposing maximum sentences for each specific crime and sometimes by requiring minimum mandatory sentences.
The threat of life sentences often occurs in drug cases where mandatory minimums for repeat drug offenders can result in life sentences. Defendants in criminal tax cases can sometimes be the victim of prosecutorial misconduct, however.
The sentencing guidelines for criminal tax cases – tax evasion, conspiracy to defraud the IRS and filing false returns – are primarily based on what is called the “relevant conduct tax loss.” The dollar value of the crime directly impacts on the sentence. Prosecutors can get creative when determining and arguing “tax loss.” Some prosecutors will use years outside that which is charged to increase the tax loss figure (and thus the sentencing guideline calculation.) Agree to plead guilty and the prosecutor agrees to a lower tax loss figure.
We have also seen some prosecutors threaten to indict the spouse of a defendant accused of filing false returns in order to coerce a guilty plea.
The Constitution guarantees everyone a fair trial but few defendants actually go to trial. The threat of increased prison time if convicted at trial motivates most people to plead guilty. There is a very fine line between rewarding people who accept responsibility and plead guilty early in the process versus punishing those who demand a trial. In the words of Judge Gleason, some prosecutors use “sledgehammers against the ever-dwindling few who have the temerity to ask for the trial the Constitution guarantees.”
What should you do if accused of a federal tax crime? Speak to an experienced criminal tax lawyer immediately. The government is not your friend. Don’t wait until after you speak with the IRS or prosecutors.
Obviously, not every prosecutor is guilty of misconduct. Most aren’t. It is still important in federal cases, however, to have a great criminal tax lawyer who fully understands the sentencing guidelines and can turn those guidelines around to your advantage.
About the author. Brian Mahany is a former Assistant Attorney General – Tax for the State of Maine. For almost a decade he has been in private practice defending the liberty of those accused of state and federal tax crimes. His firm, Mahany & Ertl, is a full service tax and white collar criminal defense firm. For more information, contact Brian at or by telephone at (414) 704-6731 (direct). All inquiries protected by the attorney – client privilege.
Post by Brian Mahany, Esq.