Senyszyn's Claims of Innocence of Tax Evasion Fail Again (12/10/16)

I have written before about the plight of Bodhan Senyszyn.  Senyszyn pled to a count of tax evasion.  Tax evasion, as followers of this blog know, requires a tax evaded element -- often referred to as tax due and owing or tax deficiency.  In subsequent proceedings, involving both direct and collateral and indirect attacks, Senyszyn often and loudly proclaimed his innocence of the charge to which he pled, particularly focusing in part on the absence of the tax evaded element.  One leg of his claims for relief reached the Tax Court where the Court held held that the evidence did not indicate that there was tax evaded on the embezzlement income in the tax evasion charge and that, under principles of res judicata, the Tax Court was not compelled to find some amount of tax evaded where it found as a fact that there was none.  Senyszyn v. Commissioner, 146 T.C. ___, No. 9 (2016), here.  I provide links to my prior discussions of Senyszyn's saga on this aspect of his claims for innocence.

Set back, but not willing to admit defeat on his claims of innocence, Senyszyn is back in court on his claim of innocence.  In Senyszyn v. United States, 2016 U.S. Dist. LEXIS 156155 (D. NJ 2016), here, Senyszyn sought collateral relief from his conviction for tax evasion.  The Court found that his pleading was inartful -- as often the case for parties representing themselves -- and recast the pleading in more lawyerly terms as a petition for writ of coram nobis which the court described as:

A writ of error coram nobis "is used to attack allegedly invalid convictions which have continuing consequences, when the petitioner has served his sentence and is no longer 'in custody' for purposes of 28 U.S.C.A. § 2255." See United States v. Stoneman, 870 F.2d 102, 105-06 (3d Cir. 1989). "A district court has the power, under appropriate circumstances, to grant a writ of error coram nobis and vacate a conviction, but the writ is an extraordinary remedy, and a court's jurisdiction to grant relief is of limited scope." United States v. Dwumaah, 570 F. App'x 193, 195 (3d Cir. 2014) (quotations omitted). A petitioner must meet five requirements in seeking relief from a federal conviction: (1) petitioner is no longer in custody; (2) petitioner continues to suffer consequences of the conviction; (3) the relief sought must correct errors of the most fundamental character; (4) there was no remedy for the defect available at trial; and (5) there are sound reasons for failing to seek the relief earlier. See id. at 196. "Earlier proceedings are presumptively correct and the petitioner bears the burden to show otherwise." Stoneman, 870 F.2d at 106.

Although there were some predicate procedural issues, the court addressed his claim as a claim of actual innocence.  The Court then held against Senyszyn on the following basis:

"Petitioner's claim may still be reviewed in this collateral proceeding if he can establish that the constitutional error in his plea colloquy 'has probably resulted in the conviction of one who is actually innocent.'" Bousley, 523 U.S. at 623 (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)); see also Lynch, 807 F. Supp. 2d at 230-31 (applying the Bousley holding to a petition for a writ of error coram nobis). "To establish actual innocence, petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Bousley, 523 U.S. at 623 (quotations and citations omitted). "It is important to note in this regard that 'actual innocence' means factual innocence, not mere legal insufficiency." Id. 

Petitioner claims that he has demonstrated his actual innocence of tax evasion because of the finding by the Tax Court that he was not liable for a deficiency on his 2003 income tax return. Pet'r's Br. at 15-17. To be clear, the Tax Court did find that Petitioner had repaid misappropriated funds to his business associate during that year and that "the evidence presented does not support the asserted deficiency." See Pet'r's Cert., Ex. B at 20-22. 

The Tax Court's finding certainly contradicts a portion of the second count of the Information, which alleged tax evasion as a product of "embezzled taxable income from the sale of real estate." See S.I. at 6. To that extent, the Court acknowledges that the Tax Court's decision conclusively establishes that Petitioner is not guilty of evading taxes through the embezzlement of taxable income in 2003; however, that is not all that the Information alleges. Notably, the first paragraph under the second count reads: "The allegations contained in paragraphs 1 through 10 of Count One of this Superseding Information are repeated, realleged and incorporated by reference as though fully set forth herein." Id. In other words, Petitioner's conduct under the first count was also sufficient to establish his guilt under the second count. The Tax Court confirmed: "[Petitioner's] preparation of a fraudulent return on behalf of [the corporation] were themselves sufficient grounds to justify his conviction for tax evasion." See Pet'r's Cert., Ex. B at 28 n.7. 

Consequently, Petitioner has not established his actual innocence of tax evasion. To the contrary, the Tax Court's decision confirms the propriety of his guilty plea and conviction. See id. As such, Petitioner has not demonstrated an error of the most fundamental character that warrants correction and his petition for a writ of error coram nobis is, therefore, denied. See Dwumaah, 570 F. App'x at 195; cf. United States v. Osser, 864 F.2d 1056, 1059 (3d Cir. 1988) ("Nevertheless, it appears to us that an assertion that a conviction was based on conduct not covered by a criminal statute class is of a 'fundamental character.'") (citations omitted).

Senyszyn has filed a motion for reconsideration, here.  The Court has not yet ruled on that motion.

I don't have much to say other than the report the decision.  The district court did find that the Tax Court's resolution of the key element of tax evaded still did not address all the ways that Senyszyn could be guilty of tax evasion as charged in the criminal indictment count to which he pled.  If the district court is wrong on that issue, then Senyszyn may have a good point.  I suspect that, in all events, Senyszyn will appeal if he loses -- as appears likely.

• Tax Court Again Rejects Collateral Estoppel For Some Deficiency and Civil Fraud Penalty Where No Tax is Due (Federal Tax Crimes Blog 7/24/16), here.
• Tax Evasion Conviction Does Not Compel a Finding of Deficiency Where There is No Deficiency (Federal Tax Crimes Blog 4/2/16), here.
• Civil Collateral Estoppel Following Tax Evasion Conviction (Federal Tax Crimes Blog 12/3/13), here.