Thursday, June 18, 2015

SDNY District Court Denies Statute of Limitations and Venue Motion for Offshore Account Defendant (6/18/15)

In United States v. Canale, 2015 U.S. Dist. LEXIS 78619 (SDNY 2015), here, the defendant, Peter Canale, is charged with a defraud / Klein conspiracy and an offense conspiracy (both in one count). See 18 USC § 371, here.  These counts relate to foreign bank accounts with the use of sham entities.  See also my prior blog on this indictment:  Another UBS/Wegelin Related Indictment in SDNY (Federal Tax Crimes Blog 11/19/14), here.  In addition, Peter Canale's brother previously pled guilty to an FBAR and tax perjury violation for offshore accounts.  See U.S. Taxpayer Pleads to FBAR and Tax Perjury Violation (3/14/13), here.  Finally, see the USAO announcement of the indictment, here, which notes that Peter is alleged to have conspired with his brother, Michael, among others.

In the opinion, the court denies Peter Canale's request for dismissal on statute of limitations grounds and for change of venue to the state of Kentucky where he resides.  Michael Canale, a co-conspirator, resided in Jupiter, Florida and was charged and pled in SDNY.

The court's resolution of the issues are fairly routine.  The bullet points are:

1. The conspiracy charge is for a continuing offense so long any co-conspirator commits an act in furtherance of the charged conspiracy.  Here, there were acts in furtherance of the charged conspiracy well within the statute of limitations.

2. Venue is proper in any district where acts in furtherance of the charged conspiracy occurred.  Here, the indictment alleges several acts in SDNY.  Those acts were "part and parcel of the charged conspiracy."  The court does go through the so-called Platt factors (Platt v. Minnesota Min. & Mfg. Co., 376 U.S. 240, 243-44 (1964)), here, finding that, although a Kentucky forum might be more convenient for the defendant, the defendant is not unduly prejudiced by trial in SDNY.

A key takeaway is the scope of the choices that the Government has for venue in conspiracy cases.   I doubt that any conspiracy includes planning to limit a prosecutor's venue choices, but still conspirators should put this on the check list in planning the conspiracy.

The Government did not arbitrarily pick the SDNY venue in this particular case.  The bank involved was Wegelin.  Wegelin was investigated, charged and convicted in SDNY.  Moreover, some of the Wegelin related parties -- Beda Singenberger and Hans Thomann -- were investigated and charged in SDNY.

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