I am on a project and cannot review the decision in detail to offer comments. I will say that it appears to be a major decision, as well as a lengthy one (95 pdf pages). So those with the time and interest may want to read the opinion.
Interestingly, oral argument was on November 14, 2011, so it took the panel to over a year to publish.
The decision is long and nuanced but here is a quick reported summary (Bob Van Voris, Ex-Ernst & Young Lawyers Get Tax Convictions Reversed (Reuters 11/29/12), here).
Two former Ernst & Young LLP tax attorneys, Richard Shapiro and Martin Nissenbaum, won reversal of their convictions for developing illegal tax shelters sold by the accounting firm from 1999 to 2001.
A three-judge panel of the U.S. Court of Appeals in New York ruled 2-1 that the convictions weren’t supported by sufficient evidence. The court today also affirmed guilty verdicts against former Ernst & Young tax lawyer Robert Coplan and a former accountant at the firm, Brian Vaughn. The four were convicted after a 10-week trial in 2010.Given the scope of the opinion, I am going to address specific topics from the opinion in separate blog entries, beginning first with the Court's discussion of the Klein conspiracy as a prohibited common law crime, a deficiency that this panel of the the Court of Appeals could not remedy because the "common law" Klein conspiracy -- if indeed it as that -- had been approved and thus mandated for the panel by the Supreme Court and earlier Second Circuit precedent. Other topics will following in separate blogs.
The subsequent blogs are:
- Coplan #1 - Panel Questions Validity of Klein Conspiracy (12/1/12), here.
- Coplan #2 - The Sufficiency Challenge for the Conspiracy Counts (12/2/12), here.
- Coplan #3 - Venue for False Statements (18 USC 1001) (12/3/12), here.
- Coplan #4 - Court Approves Defraud / Klein Instruction -- Making the IRS Job Harder May Be Enough (12/4/12), here.
- Coplan #5 - Conscious Avoidance / Willful Blindness - Affirmed as to 1; Sidestepped as to 2 (12/4/12), here.
- Coplan # 6 - Court Approves the Economic Substance Instruction (12/5/12), here.
- Coplan #7 - Booker Variance Fixes a Glitch in the Guidelines (5/5/12), here,
- Coplan #8 - Summary (12/5/12), here.