Page 5 - Robert Fink Interview

ative factor when reviewing whether get convictions. The Fifth Amend- QThe federal Sentencing Guidelines
KPMG itself should be indicted. Judge Kaplan wrote an exceedingly interesting opinion which held that the government’s actions constituted a vio- lation of my client’s Fifth and Sixth Amendment rights. Defense counsel could have done a great deal more work if the financial tap was opened. But KPMG refused to pay any more monies. As a result, the KPMG defen- dants could not be made whole since the court could not force KPMG to pay our legal fees, and even if it could force KPMG to pay, irreparable damage had already been done by our indictments. The former partners of Sidley & Austin and those who no longer worked for KPMG were not affected. Therefore their rights had not been violated and
they were forced to go to trial.
ment protects the individual from incriminating himself. An exception to the Fifth Amendment is the “required records doctrine,” which arose shortly after the bombing of Pearl Harbor. It was an extraordinary war-time measure which basically said that if records are required by law to be kept, then there’s no Fifth Amendment privilege. One’s person- al bank records were never intended to be subject to the required records doctrine. A young, aggressive prose- cutor, whom I personally know and is no longer with the government, had the bright idea that since there is a statute that required people to main- tain records in order to file an “FBAR,” that those records were “required” and therefore not protect-
established by the Comprehensive Crime Control Act of 1984 applied, in general, to offenses committed after November 1, 1987. While judges could “depart” from the range of a period of confinement upon conviction produced by application of the Sentencing Guide- line rules, in U.S. v. Booker,4 the Supreme Court held that the Sixth Amendment requires that a mandatory guideline be selected only on facts found by a jury not by a judge. The Court further converted the Sentencing Guidelines from manda- tory to discretionary.5 In your experi- ence, how has the discretionary application of the Guidelines worked in sentencing in tax evasion or false return cases, etc., and does the Booker case make negotiating out a “plea” easier than hav- ing to negotiate out a deal with the
GUIDELINES HAVE AND HARSHER.
QThe government has stepped up ed by the Fifth Amendment. The DOJ/AUSA attorney and then proffering
the settlement proposal to a federal judge?
ABefore the concept of sentencing guidelines went into effect, judges generally sentenced financial crimes with financial penalties—the imposition of a jail sentence was rare. The U.S. Sentenc- ing Guidelines have gotten harsher and harsher. Judges who grew up with the sentencing guidelines in place, knew nothing but the imposition of jail. Book- er essentially changed that. That case has made negotiating a plea easier and has resulted in sentences that look at the character of the criminal as well as the crime. In tax cases, we are now seeing that most sentences are below the guide- line levels; those levels, I believe, call for ridiculously high sentences.
QOffshore tax evasion continues to be a problem for tax administrators on a worldwide basis, has the Service’s
its efforts to obtain an individ- ual’s records in a criminal investigation or as part of discovery in a prosecu- tion or grand jury proceeding by invoking the “required records doc- trine,” codified in 26 U.S.C. section 6001, to overcome or “trump” so to speak, the constitutional right of an individual not to incriminate himself by producing such records pursuant to a subpoena. One such case is In re Special February 2011-1 Grand Jury Sub- poena Dated September 12, 2011 by the Seventh Circuit.1 What is the status of the law in this area and how does the Internal Revenue Code requirement to maintain books and records apply to non-Title 26 filings such as “FBARs”?2
AThis is what I meant when I stat- ed that the U.S. Attorney’s offices are overreaching in their attempts to
Ninth Circuit Court of Appeals in the case In re M.H., agreed with him.3 So did a half dozen other Courts of Appeals, and, as a result, individuals with foreign bank accounts are required to produce their foreign bank records requested by the gov- ernment. It is interesting to note that there is a provision in the Internal Revenue Code, which requires people to maintain records of their person- al domestic accounts. From that, one would conclude that there is simply no Fifth Amendment for an individ- ual’s domestic bank records. In response, the government simply stat- ed that they are not now taking that position. And so, we await another aggressive prosecutor who will claim that domestic bank records are “required.” Hopefully, when that hap- pens, the U.S. Supreme Court will give us back our Fifth Amendment rights.
INTERVIEW
November/December 2015
BUSINESS ENTITIES 33