Obstructing justice by filing a false answer in a civil case?

By: Mark Kimbrell

This issue was recently addressed in United States v. Liew, No. 14-10367 (9th Cir. May 5, 2017). In Liew, prior to being investigated by the FBI for a variety of crimes centered on the theft of trade secrets from DuPont, the defendants were sued by DuPont for the misappropriation of trade secrets. The defendants filed an answer stating that “they never wrongfully obtained or possessed any” DuPont trade secretes nor “misappropriated any information from DuPont.”

The defendants were later indicted for a variety of crimes related to the theft of trade secrets from DuPont. One count alleged that the defendants conspired to obstruct an official proceeding in violation of 18 U.S.C. 1512(k) by agreeing to file an answer to DuPont’s civil complaint that contained a false statement. At trial, the defendants were convicted of that count.

On review, the Ninth Circuit reversed the defendants’ conspiracy to obstruct justice convictions. The Court reasoned that the defendants’ statement in their civil answer that they “never misappropriated any information from DuPont or any of its locations” was “tantamount to a general denial of legal liability.” The Court distinguished such a legal denial from an overt factual false statement, and held that making a general, legal denial of guilt did not constitute obstruction of justice. However, the Court stopped short of holding that filing an answer in a civil case can never constitute obstruction of justice. As such, Liew illustrates that it can be helpful to seek counsel from an experienced criminal defense lawyer while navigating a civil case.

Tax Tip of the Day: Tax Return Preparers Must Adequately Monitor Their Employees

By: Doug Stamm

A federal appeals court recently upheld Hugo Jean-Joseph’s conviction for eleven counts of willfully aiding or assisting in the preparation of false or fraudulent income tax returns presented to the Internal Revenue Service (IRS), in violation of 26 U.S.C. § 7602(2). Mr. Jean-Joseph was the president and owner of a tax return preparation company. The government alleged the company falsely overstated its customers’ deductions to the IRS to generate larger refund amounts. The company would then give its customers a refund check in an amount smaller than what was submitted by the IRS. This allowed the company to skim extra money off the top and acquire a fraudulent profit. At trial, Mr. Jean-Joseph argued that because he never personally prepared any customers’ tax returns, he could not be guilty of the charged crimes.

On appeal, the court rejected Mr. Jean-Joseph’s argument. In doing so, the court noted that the use of Mr. Jean-Joseph’s Electronic Filing Identification Numbers (EFINs) to file each of the fraudulent tax returns supported an inference of his involvement in their creation. The court specifically accepted the IRS’s position that the owner of an EFIN “is responsible for the maintenance of the EFIN and all of the returns that are filed with the IRS through the EFIN.”

Although the court pointed to additional circumstantial evidence to uphold Mr. Jean-Joseph’s conviction, the opinion makes clear that it is proper for a jury to hold the owner of an EFIN responsible for the criminal activities of their employees. It is therefore critical that an individual adequately monitor and supervise the preparation of tax returns filed under their EFIN. A copy of the opinion may be found here.

Two New Developments Suggest an Increase in Number of Complaints and Investigations of Sexual Assault on College Campuses

By: Mark Kimbrell

Oregon Bill Would Shield Sexual Assault Complainants from Underage Drinking Citations

On Tuesday April 25, 2017, the Oregon Senate unanimously passed Oregon Senate Bill 762 A. The bill would shield sexual assault complainants who are under the age of 21 from being cited for underage alcohol possession when they come forward to report a sexual assault. The bill would also shield minors who report a sexual assault to law enforcement on behalf of someone else.

Universities Beef Up Their Sexual Misconduct Investigations

A recent study by the Association of American Universities catalogued the strong response of universities and colleges to a study two years ago that showed high incidents of sexual assault or misconduct on college campuses. According to the new study, universities and colleges across the country have funneled resources and personnel into their misconduct investigations, and developed coordination and data sharing across campus offices. Universities have also improved coordination with local law enforcement. The study can be found here.

Both developments foreshadow an increase in sexual assault complaints and investigations at both the state and university level in the near future, and, correspondingly, an increase in the need for experienced criminal defense attorneys to defend the accused in the complex university and criminal justice systems.