Tuesday, November 15, 2011

Another UBS Client Pleads (11/15/11)

Lothar Hoess has plead to a single count of FBAR violation.  The plea agreement is here, and the information is here.

Here are the key bullet points, followed by comments:

Taxpayer: Lothar Hoess
Bank : UBS AG
Entities: Yes
Guilt: By Plea Agreement
Count:  1 FBAR Count covering 4 years (2005-2008)
Maximum incarceration period:  60 months.
Tax Loss:  ? (unknown, but the payment of tax, penalties and interest is $2,044,029)
FBAR Penalty: $1,372,774 (50% of the indicated highest balance).
Guidelines calculations:  Final Indicated Offense Level: 19 (see discussion below)
Court: NH
Judge: Steven J. McAuliffe

Sentencing Guideline Calculations and comments:

1. Guidelines calculations
a. Base Offense Level:  20 (per SG 2S1.3(c), 2T1.1(a)(1) and 2T4.1 (H)). 
b. Sophisticated Means Adjustment:  +2 (per SG 2T1.1(b)(2). 
c. These first two are "binding" per FRCrP 11(c)(1)(C).  "By using the word binding the parties mean that if the Court will not accept the plea agreement under Fed. R. Crim. P. 11(c)(3)(A), the plea agreement is null and void and the defendant will be allowed the opportunity to withdraw his guilty plea." 
d. Acceptance of responsibility:  
i. Base 2 level adjustment.  U.S. will not "oppose * * * based upon the defendant's apparent prompt recognition and affirmative acceptance of personal responsibility for the offense."  There is a litany of outs for the U.S. to oppose in he commits further inappropriate acts or has failed to disclose past inappropriate acts.
ii. Optional 1 level adjustment.
1) "If the defendant's offense level is sixteen or greater, and he has assisted the United States in the investigation or prosecution of his own misconduct by timely notifying the United States of his intention to enter a plea of guilty, thereby permitting the United States to avoid preparing for trial and permitting the United States and the Court to allocate their resources efficiently, the United States will move, at or before sentencing, to decrease the defendant's base offense level by an additional one level pursuant to U.S.S.G. §3E1.1(b)."
2) JAT comment:  This is odd.  Wouldn't the U.S. know the conditions already (subject, of course, to the conditions noted above?
2. Waiver of Appeal and Collateral Review if the sentence is within the indicated Guidelines range or lower than that range."  Standard outs for new interpretations with retroactive effect and for ineffective assistance of counsel.

Note:  I will update the spreadsheet by tomorrow.

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