Tuesday, January 11, 2011

The Hammer is Hammered or Slammered - Tom Delay and the Reliance on Professional "Defense"

I read in the paper yesterday and today about Tom Delay's three year sentence for money laundering and conspiracy. Among other claims (e.g., political persecution), Mr. Delay is reported to have claimed that "Everything I did was covered by accountants and lawyers telling me what I needed to do to stay within the law." See Washington Post Article (at p. 2) here. Readers will recognize this as the reliance on professionals so-called "defense" that raises its head in many tax prosecutions. In tax prosecutions, the Government must prove that the defendant acted willfully (under Cheek, meaning that the defendant intended to violate a known legal duty).  To the extent the defendant relied on professionals, the defendant did not act willfully. In this light, therefore, reliance on professionals is not a defense but rather an element that the Government's proof beyond a reasonable doubt must negate.

One of the problems with the "defense," of course, is that in order to put the issue in play in the trial in chief, the defendant will usually have to take the stand to say that he or she relied. Most defense attorneys in white collar crime cases (of which Mr. Delay's prosecution and tax prosecution are simply subsets) are loath to have their clients take the stand and usually for very good reasons -- the testimony alone may be what nails the coffin and, even worse, if the judge thinks he was laying might be considered some type of obstruction of justice to enhance the sentencing.

Indeed, it appears in Mr. DeLay's trial (a state trial), Mr. DeLay did not take the stand in the case in chief.  But, apparently at the sentencing, Mr. Delay was nonrepetent and asserted this "defense" in support of his innocence.  The sentencing speaks for itself.

I offer readers the current iteration of my discussion of the Reliance on Professional "defense" from my Federal Tax Crimes Book (this is from revised draft which is not yet final - hence the redlines). The discussion is here.

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