Convicted Defendant After Sentencing in Seeking Third Delay to Report to Prison Files an Unusual Document (1/22/26)

I write today on one of the more unusual documents I have seen filed in a criminal tax proceeding. By jury verdict, Richard Brasser and a co-defendant (Gregory Gentner), co-officers of rFactr (a software company) were convicted of 5 counts of § 7202 willful failure to account for and payover trust fund taxes and acquitted of 2 counts each of § 7201 false returns and one count (for Brasser) of §7201 tax evasion. The judge sentenced Brasser and the co-defendant to incarceration. The co-defendant started and completed his prison time. By contrast, Brasser strung out the time to report to prison, but that time fell due this month (January 2026).

As noted Brasser filed usual motions upon conviction but did not succeed. Finally, seeking the third delay to report to prison, Brasser, acting pro se, filed the document I discuss here. The document is at #161 of the docket entries. (The CL docket entries are here.) Unfortunately, the particular document is not available on CL, but I have posted it to my Google Docs here. At the point of filing the document, the issue before the court was whether the court would allow the third requested extension of time to report to prison.

The document is a letter dated June 9, 2024 from Mark Matthews to “Whom It May Concern” with a Re caption “Richard Brasser – Tax Matter.” The body of the motion says that the author had consented to its filing. The body of the letter is important so I copy and past it here (bold-face supplied by JAT):

I am writing on behalf of Richard Brasser to provide important context in connection with his conviction for what are commonly referred to as employment tax violations (while being acquitted of the more commonly known charges of false tax returns and evasion).

I have significant experience within our criminal tax system, having served as an Assistant US Attorney in the Southern District of New York, the Deputy Assistant Attorney General for the Department of Justice's Tax Division where I was responsible for all tax prosecutions nationwide, the Chief of IRS Criminal Investigation (which is the sole investigative agency for suspected federal criminal tax violations), and the Deputy Commissioner of the IRS (or the #2 official), responsible for all examination, collection, and investigation activities as well as taxpayer services. I have been involved in many hundreds of tax investigations and prosecutions for over 30 years on both sides of the table - as a prosecutor, investigator and as a defense attorney. Based on my experience the indictment of Mr. Brasser was entirely unwarranted and one of the most egregious examples of prosecutorial discretion I have ever encountered.

Propublica Article on Trump's Pardon of Alleged Tax Cheat, Roger Ver (1/22/26)

I wrote on the pardon of Roger Ver, the self-described Bitcoin Jesus who fled the country and renounced his U.S. citizenship rather than face justice for his alleged tax crimes. A Sad Event for the Country’s Criminal Tax Enforcement System (Federal Tax Crimes Blog 10/15/25), here. Propublica today offered a reasonably in depth article on Ver’s pardon. Avi Asher-Schapiro & Molly Redden, How “Bitcoin Jesus” Avoided Prison, Thanks to One of the “Friends of Trump” (Propublica 1/22/26), here.

I don’t think I can add anything that would be meaningful to readers of this blog. I just strongly recommend the article.

One minor quibble. The article quotes me but erroneously states that I am a former federal prosecutor. While with DOJ Tax, I was not a prosecutor; rather I handled civil tax appeals and the civil tax trials.

Court Denies Rule 33 Motion Based on Alleged (But Unproven) Potential and Actual Conflicts from Benefactor Payments (1/12/26)

In United States v. Lemay (S.D. N.Y. No. 1:21-cr-00573 Opinion & Order dated 1/2/26), CL here, GS here, TN here, the Court denied the convicted defendant’s Rule 33 motion based on alleged ineffective assistance of counsel. Lemay and another defendant had been convicted  in SDNY of conspiracy to defraud the U.S. under 18 USC 371. Lemay was originally indicted for tax evasion as well, but the evasion counts were severed and moved to New Jersey based on his residence. At the end of the SDNY trial, the Court denied a Rule 29 motion for judgment of acquittal. Shortly prior to sentencing, Lemay filed his Rule 33 motion. The Court then held an evidentiary hearing on the motion; this Opinion & Order is the result of the hearing.

The gravamen of the motion is that a person allegedly agreeing to pay Lemay’s costs of defense in the investigation and prosecution caused Lemay to have ineffective assistance of counsel because of conflicts created by that arrangement and the relationship of Lemay’s counsel (2 different attorneys, one in the investigation prior to the indictment and the other in the criminal trial) to other counsel for other targets or defendants with allegedly competing interests under an alleged joint defense agreement ("JDA"). The facts are more detailed and well worth reading by students and practitioners to see the types of problems that might arise when a defendant is represented by counsel being paid by someone else. The Court calls those arrangements “benefactor payments.” Lemay’s counsel (2 of them) targeted in Lemay’s claims denied Lemay’s claims. After holding an evidentiary hearing in which the Court observed and assessed the credibility of Lemay and other witnesses (including the 2 counsel), the Court rejected Lemay’s claims and denied the Rule 33 motion.

Some points:

1. Perhaps the major point is that, for some reason, Lemay’s counsel (2 of them) allegedly failed to meet the requirement of “The Court’s Individual Rule” that stated "[w]henever defense counsel has received, or will receive, a benefactor payment that subjects counsel to a conflict of interest, he or she must immediately inform the Court and request a Curcio hearing." (See Slip Op. 8.) The Curcio hearing is named for United States v. Curcio, 680 F.2d 881 (2d Cir. 1982), here. At a Curcio hearing, the court can consider the nature of any conflicts the attorney may have and advise a defendant of the risks of the conflict, determine that the defendant understands those risks through questioning, and "give the defendant time to digest and contemplate the risks after encouraging him or her to seek advice from independent counsel. For a good discussion of the Curcio hearing in the Second Circuit, see United States v. Arrington, 941 F. 3d 24,  (2d Cir. 2019), here.

More on the Goldstein Trial; Herein of Lying and Cheating, Good Guys and Bad Guys (1/10/26)

I have written about the Tom Goldstein prosecution. Tom Goldstein--SCOTUSblog founder, Prominent Supreme Court Advocate, and High-Stakes Gambler--Indicted for Tax and Related Crimes and False Statements to Mortgage Lenders (Federal Tax Crimes Blog 1/17/25; 1/19/25), here; Two Recent Tax Crimes Cases Involving Bitcoin (Federal Tax Crimes Blog 1/19/25; 2/9/25), here; Free CourtListener Docket Sheet and Documents for Major Tax Crimes Case (Also Major White Collar Crimes Case) (Federal Tax Crimes Blog 7/3/25), here.

I offer a new article and some comments. The article is Holly Barker, Tom Goldstein’s Defense Hinges on Giving the Jury Good Guy Vibes (BloombergLaw 1/10/26), here. Key excerpts for purposes of this blog relate to the general tax crimes element of willfulness, which per Cheek is the voluntary intentional violation of a known legal duty.

          Tom Goldstein—the former US Supreme Court advocate and blogger with a years-long ultra-high-stakes gambling habit—heads to trial Monday in a case that may turn on whether the jury thinks he’s “a good guy or a bad guy.”

          That’s from Goldstein himself.

          The government rejected that framing at Friday’s final pretrial conference: What the jury will decide is whether Goldstein is guilty of tax evasion and making false statements, prosecutor Sean Beatty said. But there might be something to Goldstein’s point.

          Tax cases generally require a showing of willfulness—the knowing and intentional violation of an understood legal duty. In theory, proving that willfulness or an absence of good faith can be difficult due to the confusing nature of the tax code. But the precise standard might not make a practical difference, said Jeff Neiman, a former Assistant US Attorney and founder of Neiman Mays Floch & Almeida.

          “The jury will either conclude that Mr. Goldstein is a liar and a cheater, or that he simply made mistakes that led to erroneous filings,” he said.