Wednesday, November 13, 2019

Negotiating Misdemeanor Plea in Lieu of Felony in Tax Crimes Cases? (11/13/19)

In United States v. Christensen, 2019 U.S. Dist. LEXIS 193864 (D. AZ. 2019) (Magistrate Report and Recommendation), here, Gary Steven Christensen had been convicted of multiple tax crimes and brought a "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody."  This motion states a standard claim for convicted defendants that they had not received a fair trial and appeal because of ineffective counsel.  The Magistrate R&R linked here recommends that the motion be denied and that a certificate of appealability be denied.

The general claims of ineffective counsel made are interesting.  Those who might be interested in such claims will, I think, find these claims interesting and so I do recommend it for those particularly interested in this type of claims.

But, what caught my eye was the claim Christensen makes about his attorney's plea negotiations.  Christensen was charged with 13 felony counts (7 evasion and 5 tax perjury) and 2 misdemeanor counts (failure to file).  The opinion states that, prior to the trial, Christensen's "Counsel wrote that he was "close to securing a plea offer ... which would dismiss all felonies and allow plead[ing] to three misdemeanor offenses to entirely resolve this criminal prosecution."  (See Slip Op. 5-6.)

Bottom-line, I have not experienced any willingness on tax prosecutors to take pleas to misdemeanor charges in lieu of felony charges.

I point to the DOJ Tax Criminal Tax Manual (CTM) Chapter 5 on plea agreements, here.  I could not find any discussion of offering to exchange multiple felony counts for one or more misdemeanor counts.

I ask readers to offer their comments on this issue, either by comment to this blog or by email to me at

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