Sunday, January 20, 2008
This past week was the first week of the Wesley Snipes trial. The actor is being tried along with two other individuals on charges related to an alleged tax scheme. Because of the multiple number of people alleged to have participated in this conduct, the government is in part presenting this case through the conspiracy statute. Some key points so far:
- Jury - Stephen Hudak of the Orlando Sentinel reported here that the jury pool was made up of 138 all-white jurors. Caselaw is very clear that neither the prosecution nor the defense can strike jurors premised on race. But when only one race is presented in the jury pool, the issue of improper strikes becomes moot. And although Snipes loses the ability to challenge a prosecutor who might have tried to strike a juror based upon race, he probably strengthens his pre-trial claim that the venue could not provide him with a fair trial. Because the court had denied his motion for a change of venue, the issue will only be one for him to argue if he is convicted, and it can be a tough appellate issue. Should he be convicted and this argument become necessary, the all-white pool presented here would enhance this argument.
- Venue - The jury pool also raises questions about the venue selected by the prosecution. In conspiracy cases, prosecutors get to select venue premised on the place the alleged conspiracy was formed or where any alleged act occurred. This prosecutorial power can be enormous when circuits vary on the law, as a prosecutor may seek to bring the charges in the jurisdiction with the most favorable position on an issue of importance to the government. Although the prosecution has enormous prosecutorial power in selecting the venue, defendants do not have this same luxury. In this case, it is obvious that there was a choice of venue on the conspiracy charge as the Indictment states, "From in or about 1999 through the date of this Indictment, in Lake and Orange Counties in the Middle District of Florida and elsewhere,..."
- Opening Statements - see here and here. Was Snipes a victim of tax schemers or was he a tax schemer - this may be a key question in the case (check out Scott Maxwell of the Orlando Sentinel's "Taking Names Blog"). And just how responsive was the IRS to questions by Snipes? (see here)
- A Key Government Witness - The government presented Snipes' former tax adviser. (see here) It is clear that this testimony was offered in an attempt to show that Snipes had "knowledge" of the illegality of his conduct. But whether Snipes had knowledge of the illegality of his conduct remains to be seen. When it comes time for determining what instructions will be given to the jury, the case of Cheek v. United States, 498 U.S. 192 (1991) may provide some support for Snipes. The Court in Cheek provides special treatment in tax cases "largely due to the complexity of the tax laws."