A few weeks ago I received an email from Robert Bernhoft, the lead defense attorney for Wesley Snipes during his recent trial for tax evasion. For those who don’t remember, Mr. Snipes was found not guilty of the most serious offenses (tax fraud) but was found guilty on three of six charges of not filing a tax return.
I’ve received permission to post Mr. Bernhoft’s remarks:
After the Snipes’ trial I came across several articles and posts you authored while sifting through some of the voluminous media and web material that my staff had collected. In those articles you stated that Mr. Snipes had been convicted of three counts of tax evasion. This is untrue. Mr. Snipes was convicted on three of six counts of failure to file a return.
The difference is significant, because tax evasion is a tax fraud felony, see 26 U.S.C. § 7201, whereas failure to file a return is a “non-fraud” misdemeanor, see 26 U.S.C. § 7203. The felony/misdemeanor distinction is very important for several reasons. First, a misdemeanor conviction does not ordinarily disenfranchise Mr. Snipes from voting or possessing firearms, does not ordinarily bar him from running for (or holding) national office, and carries a statutory maximum sentence of 1 year. (Felony tax evasion carries a 5-year statutory maximum sentence per conviction count). Moreover, the U.S. Sentencing Guidelines treats misdemeanor convictions much less severely than felony convictions in a number of ways other than the difference in statutory sentencing maximums, including giving the sentencing judge broad discretion to sentence to probation or other non-incarceration alternatives to actual imprisonment.
Lastly, I note you made some disparaging comments about Mr. Snipes’ decision to discharge Attorney Billy Martin and hire my firm for his defense, opining, on at least one occasion, that Mr. Martin’s “O.J” and “blame the advisors” defense would surely be better than some “lame tax protester arguments.” Mr. Snipes faced a very real 16 years imprisonment if he was convicted on both felony tax fraud counts (conspiracy to defraud the IRS and filing a false claim), but now faces a statutory maximum of three years imprisonment on misdemeanors only, and without the opprobrium and loss of rights attached to felony tax fraud convictions. In retrospect, I think the trial worked out rather nicely for Mr. Snipes, don’t you?
First, I absolutely agree with Mr. Bernhoft: The trial worked out very well for Mr. Snipes. Mr. Snipes likely would have been sentenced to a significant term at ClubFed had he been found guilty of both felony counts. If I should at some future point be accused of felony tax evasion I’d definitely consider Mr. Bernhoft for my defense.
I also assumed that when Mr. Bernhoft took over the defense that the defense strategy would be a typical “tax protester strategy.” I told Mr. Bernhoft in an email that I was wrong, and I’ll state it here. Mr. Snipes’ defense was handled quite well. (Indeed, contrast Mr. Snipes’ defense with that of his co-defendents, Eddie Ray Kahn and Douglas P. Rosile, who were found guilty of felony tax fraud.)
I think Mr. Bernhoft is splitting hairs about Mr. Snipes’ conviction of failing to file a tax return. He accurately notes that I called it “tax evasion.” Indeed, the headline on my post of February 1st said just that. However, the story noted that he was convicted of three misdemeanor counts. Mr. Bernhoft is correct, of course, that felony convictions are much more significant than misdemeanors.
In my post “Final Thoughts on the Snipes Trial” I noted that both the prosecution and the defense praised the Ocala, Florida jury. I noted that,
“Yes, Snipes was guilty of stupidity (if you believe you don’t have to pay taxes…) and
tax evasionfailure to file a tax return (the government clearly proved that he didn’t file tax returns while he was earning income) but was he the purveyor of a tax fraud scheme?“I hadn’t looked at the case in that manner but thinking about it I can see how a jury could decide that Snipes just bought the words of Kahn and Rosile. The verdict is not a repeat of the OJ Simpson case; Snipes was found guilty of three counts of
tax evasionfailure to file a tax return and could spend some time at ClubFed. He also faces the possibility of a civil suit by the IRS to recover the taxes. That might not happen, though, because his defense attorney says that Snipes intends to file and pay his taxes.”
Here are two other conclusions that can be drawn from this case that I believe Mr. Bernhoft would agree with. First, it’s a lot cheaper to file your tax returns and pay your taxes then to have to go to trial and defend yourself against tax fraud charges. And second, I don’t think Mr. Bernhoft will be complaining about juries in Ocala, Florida and clamoring to move trials from that bucolic town again.
Tags: Snipes