Monday, June 11, 2007
Attorneys for Wesley Snipes filed a Motion to Dismiss the Indictment of tax charges, arguing selective prosecution. Prof Paul Caron at TaxProf Blog has links to the indictment and motion to dismiss, and also explains the history of this case. (See also the story on Yahoo News).
The Motion to Dismiss (see Smoking Gun) starts with a claim that the section 371 conspiracy charge "fails to allege the essential elements" of the statute. This is followed by a claim that the court does not have jurisdiction. The Motion concludes with claims of selective prosecution.
Selective prosecution is a difficult argument to make as it requires that the defendant prove not only that similarly situated individuals were not prosecuted, but that this prosecution was "intentional or purposeful" and that it was due to an "arbitrary classification." See LaFave, Israel, & King, Criminal Procedure 2d s 13.4. The problem facing defense counsel is that he or she can't prove the "intentional or purposeful" prong without obtaining discovery, and many courts will not give them discovery upon a mere allegation of prosecutorial selectivity. The Supreme Court provides an allowance for discovery, but a certain base level of proof is needed to reach that level. (See United States v. Armstrong, 517 U.S. 456 (1996).