White Collar Roundup - January 2015

Defense Bar Stifled

In National Association of Criminal Defense Lawyers (NACDL) v. Executive Office for United States Attorneys, the U.S. District Court for the District of Columbia refused to require the Department of Justice (DOJ) to provide the NACDL a copy of its discovery manual, called the "Blue Book." The NACDL had filed a Freedom of Information Act (FOIA) request for the Blue Book, which the DOJ denied, claiming the Blue Book was exempt as attorney work product. The parties filed cross-motions for summary judgment. The NACDL claimed the Blue Book simply contained guidelines to govern discovery in criminal cases, but the DOJ claimed it contained "legal advice, strategies, and arguments for defeating discovery claims." After conducting an in camera review of the Blue Book, the court agreed it "is attorney work-product protected from disclosure pursuant to FOIA Exemption 5." As a result, the court granted the DOJ's motion. No More Prosecutions for Impeding the Tax Laws in the Dark The U.S. Court of Appeals for the Sixth Circuit in United States v. Miner clarified the intent requirements to be convicted of violating 26 U.S.C. 7212(a), which criminalizes corruptly endeavoring to obstruct the "due administration" of federal income-tax laws. In the case, David Miner had been prosecuted for engaging in two schemes that promised to defeat the "proverbial inevitability" of taxes. Miner offered to assist clients in altering their "Individual Master Files," which are internal records at the Internal Revenue Service (IRS), for a fee of $1,800. He also offered clients the chance to create "common-law business trusts" that he claimed would shield assets from tax liability. The IRS investigated his activities, and the government ultimately charged him with violating section 7212(a), among other statutes. At trial, he was convicted and was sentenced to 18 months' imprisonment. He appealed, claiming the trial court improperly failed to charge the jury that he "could only be convicted if he was aware of a pending IRS proceeding that could be impeded." Putting to rest a long-standing conflict within the circuit, the Sixth Circuit agreed with him, finding error, but alas, concluded the error was harmless and affirmed the conviction. The Sentence Pronounced Trumps the Judgment The Tenth Circuit in United States v. Kieffer took the district court to task for imposing a different sentence on defendant Howard Kieffer in the written judgment than it had...