Tuesday, November 22, 2011

Getting the Defendant / Client Real in the Plea Process (11/22/11)

Today, I offer a blog for students and relatively new practitioners in the arcane area of criminal tax law. In United States v. Brandveen, 2011 U.S. Dist. LEXIS 132612 (ED VA 2011), here, the defendant unsuccessfully sought to withdraw a guilty plea. The indictment charged the defendant with a single count of tax evasion (section 7201) and obstruction of an official investigation (18 USC section 1512(c)(2)). (As to the tax evasion count, the underlying tax evaded is unclear, because at points the decision refers to the tax at issue as the tax underlying the trust fund penalty; but I don't think this is relevant for the point I make in this blog.)

In denying the motion to withdraw the plea, the Court has a good and reasonably succinct discussion of the tensions between the defendant and her counsel who were Federal Public Defenders.Keep in mind that, because of the criminal tax system's fairly rigid process for weeding out bad criminal cases, the cases that result in indictment are usually very good. As a result, a very high percentage of those cases plead because of the incentives (such as acceptance of responsibility). This means that the process exemplified in this case is a frequent occurrence in a criminal tax practice. There are good lessons here that can be vicariously learned.

For those reading the opinion, I offer it just as it came from PACER. The full file is 33 pages, but the opinion itself is 11 pages. I recommend that you read only the opinion.

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