Date of last act of evasion, not due date of taxes, triggers statute of limitation for tax evasion

STATUTE OF LIMITATIONS/TAX EVASION United States v. Thompson, No. 06-4232, ___ F.3d ___ (10th Cir. Mar. 12, 2008)(Utah). Appeal of convictions and sentence for conspiracy to defraud United States, tax evasion, and corruptly endeavoring to interfere with administration of internal revenue laws. HELD: (1) Because evasive acts following filing of tax return may be part of offense, it is date of latest act of evasion, not due date of taxes that triggers statute of limitations. Holding otherwise would reward defendant for successfully evading discovery of tax fraud for period of six years after date returns filed. (2) Where evidence supported lesser -included offense jury instruction for misdemeanor tax evasion, trial court’s failure to issue that instruction was not error in the absence of request from defendant. However, even if plain error analysis is applied, there is no noticeable plain error. Under plain error standard, non-constitutional error will not be noticed unless it is particularly egregious and court’s failure to notice would result in miscarriage of justice. Therefore, where there was more than enough evidence to support defendant’s conviction for tax evasion, and Defendant did not show that “miscarriage of justice” resulted from district court's failure to instruct on lesser-included offense of misdemeanor tax evasion, error, if any, was not noticeable. (3) Evidence was sufficient to show: (1) that foreign commission checks were personal income, rather than loans or payments to taxpayers' corporations; (2) that failure to report personal income was willful; (3) that defendant spouse entered into conspiracy to defraud United States; (4) willfulness and agreement, as required to convict defendant attorney of conspiracy to defraud. (4) Application of 2001 Sentencing Guidelines for crimes committed in 1989 did not violate Ex Post Facto Clause because offenses continued after date on which 2001 Guidelines became effective. (5) Defendant did not show requisite prejudice to support claim of due process violation by government in obtaining ex parte order compelling attorney to testify to grand jury under crime/fraud exception to attorney-client privilege. (6) Severance was not warranted. (7) Tax loss amounts were properly calculated in determining base offense level for sentencing. Read the opinion here.