From the desk of David M. Garvin, Esq.
Volume 113	Page 3 of 3	January  2011

From the desk of David M. Garvin, Esq.
Volume 113	Page 1 of 3	January  2011

David M Garvin, Esq.

Elizabeth Bossingham proceeding In proper, were charged by indictment filed on April 15, 2010 with conspiracy to defraud the United States and a department or agency thereof, by willfully attempting to evade or defeat any income tax or payment thereof, due and payable to the Internal Revenue Service, in violation of 18 USC 371 and 26 USC 7201 and with six counts of attempting to evade and defeat the payment of tax and aiding and abetting in violation of 18 USC 2 and 26 USC 7201 Defendants were arrested pursuant to warrants on October 29, 2010.       Defendants appeared for arraignment on October 29, 2010.  Arraignment was continued to November 15, 2010 in order that Defendants retain counsel. Defendants appeared on November 15, 2010 arraignment. Arraignment was again continued to November 29, 2010 in order that Defendants retain counsel.       Defendants appeared on November 29, 2010 for arraignment.       Defendants again requested a continuance in order to retain counsel. The arraignment was continued to December 20, 2010 and Defendants were advised that the arraignment would take place on December 20, 2010 whether or not Defendants had retained counsel.

On November 15, 2010, Defendants filed a "Notice of Automatic Stay." The Clerk's Office docketed the pleading as "Motion/Notice of Automatic Stay of  Proceedings. " The United States filed an opposition to the Notice of Automatic Stay.        On November 29, 2010, Defendants filed an ex parte "Motion for Expedited Writ of Error."        Defendants' motion for expedited writ of error is a petition for writ of error coram nobis seeking to correct what Defendants characterize as errors in the docketing of pleadings filed by Defendants in this criminal action.         In Carlisle v. U.S., 517 U.S. 416, 429 (1996), the Supreme Court explained that the writ of error coram nobis is "traditionally available only to bring before the court factual errors 'material to the validity and regularity of the legal proceeding itself,' such as the defendant's being under age or having died before the verdict." In United States v. Riedl, 496 F.3d1003, 1005 (9th Cir. 2007) The Court stated that the writ of error coram nobis is a highly unusual remedy, available only to correct grave injustices in a narrow range of cases where no more conventional remedy is applicable. In U.S. v. Morgan, 346 U.S. 502 (1954), the Court characterized the writ as an 'extraordinary remedy' that should be granted 'only under circumstances compelling such action to achieve justice.' "It is difficult to conceive of a situation in a federal criminal case today where [a writ of coram nobis] would be necessary or appropriate."    Similarly, the Court described the writ as 'extraordinary,' ... 'used only to review errors of the most fundamental character,' ... And filling a very precise                                       (Continue)

From the desk of David M. Garvin, Esq.
Volume 113	Page 2 of 3	January  2011

USA v. Bossingham (Continued)

gap in federal criminal procedure.         Defendants cited no authority allowing a writ of error coram nobis to correct alleged docketing errors in an ongoing criminal prosecution.     To the extent Defendants sought a writ of error coram nobis, the motion was DENIED.

USA v. Damra 621 F.3d 474 (6th Cir. 2010)

One CPA reported being picked for a visit because his firm had filed a significant number of returns with high Schedule E income or loss, as well as a significant number of returns with Schedule A containing employee business expenses.        The steps taken by the agent and questions asked of the CPA included:         The agent gathered information including SS, PTIN, EFIN, and EIN numbers for the two preparers in the firm who were the subject of the visit.         The CPAs were asked to describe general procedures for gathering taxpayer data, what documents were supplied by taxpayers, what steps were taken to verify accuracy, and what review procedures were followed.         The agent asked about the security of the computer system and what steps were taken to secure taxpayer data.         The agent asked to see a representative sample of client returns and supporting documents to verify that the procedures indicated were in place.

The CPA retrieved a random sample of Forms 8879 (IRS e-file Signature Authorization) and showed the agent that the forms were signed by both the taxpayer and preparer.       Criminal investigation (CI) agents have been involved in a small number of visits. Any preparer contacted for an office visit should consult with an attorney before attending the meeting with Cl agents.

USA v. Jewell 614 F.3d 911 (8th Cir 2011)

Defendant was convicted in the United States District Court for the Eastern District of Arkansas under 26 USC 7201and 18 USC 2 of aiding and abetting tax evasion. Defendant appealed.       Defendant, a tax attorney, was accused of suggesting and carrying out a scheme to assist taxpayers in avoiding payment of the full amount of taxes due on a litigation settlement. Admission of a videotaped deposition, which related only to a mail fraud conspiracy charge of which defendant was acquitted, was not an abuse of discretion under Fed. R. Evid. 403.         The Court found that a witness's invocation in the presence of the jury of the Fifth Amendment privilege against self-

incrimination, if error, was invited by defendant. The Court further found That the admission of evidence of a separate tax evasion scheme involving defendant was permissible under 404(b) to show intent. The evidence was sufficient to show a tax deficiency involving the taxpayers, and the taxpayers' eventual payment of their tax deficiency did not exonerate defendant.       The Jencks Act did not require the government to turn over material thatdid not pertain to the subject matter of an Internal Revenue Service agent's testimony.       The conviction was affirmed.

USA v. Toto-Ngosso 2011-1 U.S. Tax Cas. (CCH) P50,155 (4th Cir 2011)

Defendant was convicted by a jury in the United States District Court for the District of Maryland, at Greenbelt, of willfully aiding and assisting in the preparation and presentation of false income tax returns, in violation of 26 USC 7206 (2 ) . Defendant appealed from his conviction and his 70-month prison sentence.       The Court found that the district court did not abuse its discretion in admitting evidence, under 404(b), in the form of testimony from two witnesses concerning his preparation of income tax returns not charged in the indictment. Evidence that defendant had prepared several additional returns containing false deductions and adjustments was highly probative on the issue of whether his preparation of the false returns charged in the indictment was done knowingly or without mistake                                 (Continue)

USA v. Toto-Ngosso (Continued)

and thus significantly aided the Government in meeting its burden to show that defendant acted willfully. method for estimating the loss amount was acceptable; the false deductions listed on the returns of the clients who did not testify at trial fit the pattern of the fraudulent conduct established at trial, and the $98,785 loss amount was based on statements made by the clients themselves establishing the falsity of the deductions defendant had claimed on their returns.       The judgment of the district court was affirmed.

USA v. Perez 612 F.3d 879 (7th Cir. 2010)

A jury convicted defendant of two counts of filing false federal income tax returns. The U.S. District Court for the Northern District of Illinois sentenced defendant to 33 months'  imprisonment.       Defendant appealed, claiming that he was unfairly denied the right to be present at trial, that the jury was not properly instructed, that  expert testimony was unfairly limited, and the evidence was insufficient to convict Defendant first argued that his right to be present at trial was violated because jury instruction conferences were held in his absence. The Court found that the right to specific jury instructions was one of those remaining decisions that rested in the hands of the attorney, and a defendant did not need to personally waive instructions. While it would have been prudent to obtain defendant's waiver, the trial court was not required to address the jury instructions directly with him. Defendant clearly waived his right to a net worth instruction; in fact, his attorney insisted that the instruction

lay opinion testimony was admissible under Fed.R.Evid 701 was close, the court concluded that the error, if any, was harmless.   The court affirmed the district court's judgment of conviction.

Information on the author

David M. Garvin is an attorney who’s practice concentrates in the area of white collar crime defense. Mr. Garvin was admitted to the Florida Bar in 1982. He holds a Juris Doctor Degree from the University of Miami (1982) and a LLM in Taxation from the University of Miami (1987). Mr. Garvin is certified by the Florida Bar as a Tax Specialist (1990). Mr. Garvin is also a licensed Certified Public Accountant in Florida since 1982. Mr. Garvin is admitted to practice before the United States Supreme Court, the Eleventh Circuit Court of Appeals, the Eight Circuit Court of Appeals, the Sixth Circuit Court of Appeals, the United States District Courts for the Southern, Middle and Northern Districts of Florida, the Florida Supreme Court, and the United States Tax Court.      Mr. Garvin’s Martindale-Hubbell rating is “AV”. He is listed in the Pre-Eminent Bar Register as a criminal attorney and as a tax attorney. He is also listed in Super Lawyers.     Mr. Garvin was selected by the Daily Business Review as Most Effective Lawyer for 2010 for complex litigation.

David M. Garvin, Esq. 200 South Biscayne Blvd. Suite 3150 Miami, Florida 33131 (305) 371-8101 www.davidmgarvin.com miami-criminal-attorney-davidmgarvin.com info@davidmgarvin.com

USA v. Cohen Assor and Cohen Levy (S.D. FL 2010)

The sentencing proceedings of Mauricio Cohen Assor and his son, Leon Cohen Levy, were held before U.S. District Court Judge William Zloch on Tuesday, January 18, 2011.        The defense argued that the  sentence for each of the defendants should be substantially less than the approximate eleven years sought by the government.  The defense requested a sentence of no more than 12 months for each of the two defendants.        The defendants argued that the amount of tax loss urged by the government was grossly inflated.  A former IRS agent testified that IRS documents appeared to reflect that the government had recognized a large portion of funds to have been from non-taxable loans.         Leon Cohen Levy was expected to distance himself from his father’s activities at trial and stress that the tax laws do not tax recipients of gifts.  His counsel at sentencing was allegedly quoted as stating: “Too often in this case, they (the defendants) became one person. They became the Cohens.”         The Court stated that the sentencing would be concluded within two weeks.  The Court also left open the possibility of ruling on selected issues and informing the parties as to those rulings as they are reached. This  procedure is not often followed by the Court in sentencing matters. It will be somewhat interesting to see if any isolated rulings are published.

USA v. Bossingham LEXIS 133659 (E.D. CA 2010)

Defendants Brett Bossingham and

not be given. As for prohibiting defendant's expert from testifying further about flaws in the net worth method of proof, defense counsel voluntarily abandoned that line of questioning, and any challenge to the ruling was waived.       The court affirmed defendant's conviction.

USA v. Stadtmauer 620 F.3d 238 (3rd Cir. 2010)

Defendant appealed from the United States District Court for the District of New Jersey, where he was convicted of one count of conspiracy to defraud the United States, in violation of 18 USC 371 and nine counts of willfully aiding in the filing of materially false or fraudulent tax returns, in violation of 7206(2).    The district court sentenced defendant to 38 months' imprisonment.    The court principally considered whether the district court erred in giving a "willful blindness" instruction.   The court concluded that a willful blindness instruction that applied to a defendant's knowledge of the law in a criminal tax case would not run afoul of Cheek v. United States. Further, while the question whether an accountant's