Wesley Snipes Tax Trial "The IRS is not on trial here!" By:
Bill E. Branscum
Copyright 2007, 2008
The reader should note that this article has been
an ongoing work in progress, written and updated sequentially as
things developed.
The pundits are reporting this as the case that cannot
be won, and the odds makers are predicting a ninety percent conviction
rate. Personally, I find myself thinking that the "talking
heads" might do better, and the public be better served, if
they spent a little more time in the court room. I am sure that
those of you who have worked "news-worthy" cases can relate
to that, "where was I when that happened"
feeling. Some of the coverage has been outright libelous.
I do not proffer this as an effort to "get the
truth out" myself -- the comments I have made on the various
network forums to which I belong have not been well received by
my professional associates. Wesley Snipes is a Client, but that
does not affect my perception of the situation - in my view, he's
not guilty of the charges alleged. Being the only Southerner on
the trial team, perhaps I have too much faith that an Ocala jury
will be fair and impartial, but I have seen the evidence, I know
what the evidence shows, and I cannot imagine that a jury of my
peers is going to convict him. Time will tell, but it is troubling
to me to see people whom I expected to know better suggest that
I have somehow sold out my personal credibility in expressing that
opinion.
In any event, by the time this article reaches the
search engines, this case will be old news, and nobody but those
of us who were involved in it will care anymore.
This is an investigator's web site, with material
intended for other investigators. This case presents an opportunity
to walk thru the investigative process, as well as some of the procedural
issues uniquely attendant to federal criminal trials. It is my intention
to leave the "Who shot John" to others; this article is
offered in the hope that it will serve to provide colleagues who
have not been involved in cases like this, an introduction as to
what to expect when they walk into the surreal atmosphere of a high
profile, federal criminal prosecution.
Where to begin? Generally, things are best begun at
the beginning, but I am not sure how to define the term "beginning"
with respect to a federal criminal case. As a matter of law, I suppose
that you could say that a "conspiracy case" begins with
the first alleged act of the conspiracy, but investigators can scarcely
begin with that. Alternatively, one could argue that the criminal
case actually begins with the "indictment" of the accused,
which is not the place I would choose to begin, but I do want to
provide copies of the Indictment, and Superseding Indictment,
at this point, as an introduction to the allegations underlying
the federal criminal prosecution of Wesley Trent Snipes.
According to the original Indictment, on April
5, 2006, Eddie Kahn, Douglas Rosile and Wesley Snipes were indicted
in the Middle District of Florida. The United States alleged that
Eddie Kahn, Douglas Rosile and Wesley Snipes violated Title 18 United
States Code, Sections 287 and 2, in that Eddie Kahn, and Douglas
Rosile were alleged to have prepared nine (9) federal tax forms
claiming refunds for various individuals, knowing that the claims
for refunds were false, fictitious, and [sic] fraudulent, including
a 1997 1040X for Wesley Snipes, as referenced in Count Nine
of the Indictment.
Title 18 USC, § 287 says:
Whoever makes or presents to any person or
officer in the civil, military, or naval service of the United
States, or to any department or agency thereof, any claim upon
or against the United States, or any department or agency thereof,
knowing such claim to be false, fictitious, or fraudulent, shall
be imprisoned not more than five years and shall be subject
to a fine in the amount provided in this title.
Title 18 USC, § 2 says:
(a) Whoever commits an offense against the United States
or aids, abets, counsels, commands, induces or procures its
commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly
performed by him or another would be an offense against the
United States, is punishable as a principal.
This is an interesting provision of the Unites States Code. Note
that Title 18 USC, Section 2 serves to collect together various
inchoate offenses, and establish principal liability regarding these
roles. Note also that this is different than the inchoate offense
of "Accessory After the Fact," as cognizable under 18
USC. § 3. Compare also to Conspiracy, as cognizable under Title
18 USC § 371; being a conspirator can be worse than being a
principal.
In any event, note that the original, nine count Indictment targeted
Kahn and Rosile regarding eight allegations, it included Wesley
Snipes with respect only to Count Nine, and it included no
"tax" related allegations cognizable under Title 26 USC
at all.
In superseding an indictment, the government adds
charges, or additional defendants, but the pursuit of those charges
also allows the government to continue to use the awesome power
of the Federal Grand Jury. In a criminal case, the power of the
grand jury cannot be used solely to obtain additional evidence against
a defendant who has already been indicted; the grand jury cannot
be used as an instrument of pre-trial discovery or trial preparation.
After indictment, the power of the grand jury is only available
to the government if its investigation is related to an effort to
supersede the prior bill.
On October 12, 2006, the United States of America
persuaded a Federal Grand Jury to return a Superceding Indictment.
This document reflects that the government alleged that Eddie Kahn,
Douglas Rosile and Wesley Snipes violated:
Title 18 United States Code, Section 371 (Conspiracy); and
Title 18 United States Code, Sections 287 and 2 (False Claims);
and (with respect to Snipes)
Title 26, United States Code Section 7203 (Failure to File).
Specifically, the Superseding Indictment alleges
that:
According to Count One, the Superseding
Indictment alleges that, from 1999 thru 2006, in the Middle
District of Florida and elsewhere, Wesley Snipes, identified as
a resident of Wendermere Florida, and Eddie Ray Kahn, who was identified
as the Principal behind American Rights Litigators [ARL] and Guiding
Light Ministries of God [GLGM] which were described as being commercial
enterprises that promoted fraudulent tax schemes, along with Douglas
P. Rosile, who was identified as a former CPA who continued to work
as a CPA after his licenses in Ohio and Florida were revoked, conspired
to defraud the United States. Conspiracy is a felony cognizable
under the provisions of Title 18 USC § 371 which says:
If two or more persons conspire either to
commit any offense against the United States, or to defraud
the United States, or any agency thereof in any manner or for
any purpose, and one or more of such persons do any act to effect
the object of the conspiracy, each shall be fined under this
title or imprisoned not more than five years, or both.
According to Count Two, the Superseding
Indictment alleges that, on April 11, 2001, in the Middle District
of Florida and elsewhere, Wesley Snipes, Eddie Ray Kahn, and Douglas
P. Rosile, knowingly made a materially fraudulent claim for payment
against the United States, in that they presented, or caused to
be presented, to the IRS an amended federal income tax return (Form
1040X) for Defendant Snipes for the tax year 1997, claiming a refund
in the amount of $7,360,755.00 knowing the claim to be fraudulent.
Filing a Fraudulent Claim is a felony cognizable under the provisions
of Title 18 USC § 287, and anyone who aids and abets is chargeable
as a Principal pursuant to the provisions of 18 USC § 2, as
set forth above
According to Counts Three thru Eight, the Superseding
Indictment alleges that, in the Middle District of Florida and
elsewhere, Wesley Snipes, willfully failed to file tax returns for
tax years 1999, 2000, 2001, 2002, 2003 and 2004 respectively. Willful
Failure to File is a misdemeanor cognizable under the provisions
of Title 26 USC § 7203 which says:
Any person required under this title to pay
any estimated tax or tax, or required by this title or by regulations
made under authority thereof to make a return, keep any records,
or supply any information, who willfully fails to pay such estimated
tax or tax, make such return, keep such records, or supply such
information, at the time or times required by law or regulations,
shall, in addition to other penalties provided by law, be guilty
of a misdemeanor and, upon conviction thereof, shall be fined
not more than $25,000 ($100,000 in the case of a corporation),
or imprisoned not more than 1 year, or both, together with the
costs of prosecution.
So that's what we are looking at going in, an exposure
for Wesley Snipes of approximately sixteen (16) years.
For those who may be interested, I have tried to provide
some general background regarding Federal Grand Juries, and the
indictment process.
The trial is over, and I have a number of comments and observations
to make, but for now I must focus on cases I have left unattended
while I have been here in Ocala. I'll publish the transcripts and
leave it to those who are interested to formulate their own "informed"
opinions. One thing is for certain, anytime the government proclaims,
"The IRS is not on trial here,"
it's a safe bet that the IRS was put on trial, and the government
is concerned that they did not do well.
For the moment, I just want to say that this case resolved to be
the spectacular win that it was largely because of the work of two
people, "unsung heroes" if ever there were any. Bret C.
Tollefson, a law school graduate awaiting his opportunity to take
the bar exam, and Robert Raymond, who manages discovery and trial
preparation for the Law Firm of Robert G. Bernhoft, did a job in
this case that will never be adequately acknowledged. They worked
like every Client would like to think that their team works, tirelessly
and relentlessly making sure that the attorneys working in the well
were completely prepared, and supported, every day.
Update: The Sentencing
Once the jury has returned a verdict, there remains a lot of work
to do, unless the trial team achieved an acquittal on all counts.
Although the defense team did an incredible job in this case, resulting
in acquittals on the felony counts, as well as three of the six
misdemeanor Failure to File counts, Wesley Snipes stood to be sentenced
for the remaining three misdemeanors.
As was published widely throughout the media, Wesley Snipes chose
to rely upon some new people to assist him thru sentencing. Insofar
as I am aware, there was no dispute of any kind. I believe that
people he trusted persuaded him to rely upon "experts"
who were represented to be exceptionally competent attorneys, specializing
in sentencing. There is a lot more strategy and gamesmanship involved
in this than one might think, so anyone facing the possibility of
going to jail would be a fool not to rely upon the best qualified
people he could find.
Unfortunately, had Wesley Snipes chosen to show up all by himself
in a clown outfit, and bait Judge William T. Hodges with, "Billy
Boy, you just bring it on," he could not have
fared any worse.
I am not going to offer an opinion, or even a comment as to what
transpired here; I do not believe that I need to. The entire transcript
is appended below.
I will say that I have known Wesley Snipes for several years now,
I have talked to him privately on many occasions, I have accompanied
him publicly, and I have seen him under pressure that few people
ever have to deal with, under circumstances where the people around
him would have made anyone crazy. To me, his life would be a nightmare.
Everyone around him has an angle or an agenda, anyone who was ever
on a first name basis thinks he owes them something, he cannot believe
anything that anyone tells him, and he has been a target for everyone
from that nitwit Indiana prosecutor who created that bogus paternity
case, to the Internal Revenue Service.
I have never known Wesley Snipes to conduct himself with anything
less than dignity, courtesy and respect towards anyone. He has made
some mistakes, but he is a decent man, and he deserved better than
he got.
Oracle International
Bill E. Branscum, Investigator
OracleIntL@aol.com
(239) 304-1639
