Thursday, October 7, 2010

Sometimes the Guilty are Really Guilty, But Not These If You Believe Their Lawyer (Whom the Jury Did Not)

Yesterday, two defendants caught up in the foreign bank account initiative were convicted in the Southern District of Florida, which seems to be the center of the center of activity in this initiative. The Bloomberg report is here, and is reasonably comprehensive for a quick report of the conviction yesterday.

As narrated in the Bloomberg article, the defendants' lawyer proclaimed their innocence. (The article says that the lawyer was "their defense lawyer;" it is unclear to me how any judge would permit one lawyer to represent more than one defendant in a criminal trial.) Thus, it would seem, the defense presentation foreclosed any possibility of seeking a downward adjustment for acceptance of responsibility. As I note in my book:

In tax cases, this adjustment is generally achieved by a plea agreement and acceptance of responsibility sufficiently before the trial date that significant resources are avoided. The Application Note [to SG 3.1.1 provides (and cautions):

3. Entry of a plea of guilty prior to the commencement of trial combined with truthfully admitting the conduct comprising the offense of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which he is accountable under §1B1.3 (Relevant Conduct) (see Application Note 1(a)), will constitute significant evidence of acceptance of responsibility for the purposes of subsection (a). However, this evidence may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility. A defendant who enters a guilty plea is not entitled to an adjustment under this section as a matter of right.
By the same token, the Guidelines recognize the possibility that a defendant may qualify for this favorable acceptance of responsibility downward adjustment even though not pleading guilty. In “rare situations” a defendant may demonstrate acceptance of responsibility “even though he exercises his constitutional right to a trial,” as “where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt.” [SG 3E1.1, cmt. Note 2.]

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