Third Circuit Denies Appeal In “Tax Free” Conspiracy

Posted On Monday, May 6, 2013

On May 1, the Third Circuit issued an opinion upholding the tax fraud conviction of Donald Turner.  United States v. Donald Turner, No. 12-1420 (3d Cir. May 1, 2013). 

Turner, the author of Tax Free!  How the Super Rich Do It!, was convicted of conspiracy to defraud the IRS following a jury trial in the U.S. District Court for the Western District of Pennsylvania.  The district court sentenced Turner to 60 months imprisonment and 3 years supervised release.  In addition, applying the Mandatory Victims Restitution Act, 18 U.S.C. § 3663 (“MVRA”), the district court ordered Turner to pay $408,043 in restitution, the full amount of the government’s loss, without considering Turner’s ability to pay.

On appeal, Turner argued that the District Court had improperly admitted tape recordings between an undercover IRS agent and another defendant who was also charged with conspiracy to defraud the IRS and foreign bank records which had been seized from the other defendant.  The Third Circuit held that the tape recordings were properly admitted under the co-conspirator exception to hearsay.  The court also held that the government had met its burden of demonstrating that the bank records were authentic and that they fell within the residual exception to hearsay. 

The court finally held that the MVRA applied to the loss attributable to Turner’s conduct, and that the district court did not err in failing to make any findings about Turner’s ability to pay before ordering him to pay $408,043 in restitution.

The full text of the opinion can be found here: