News has now broken that first son Hunter Biden is going to plead guilty to two misdemeanor tax charges and that he will receive deferred prosecution for a separate gun-related offense. And while critics are up in arms about the deal, the reality is that while it is a good one, it is not something that any experienced federal criminal defense attorney could not do. In fact, I got a client, who is not the son of a government official, almost the same outcome just yesterday.
But to really understand what’s going on, it’s necessary to separate one’s self from the politics of it all and understand what Hunter Biden was facing, and what the plea calls for.
Pre-Indictment Plea Agreements
Of course, the best time to hire a criminal defense attorney, especially in federal court, is when you become aware that you are being investigated. A good attorney can work with the prosecution, obtain early discovery, and limit any possible criminal liability or exposure that you may have.
Sometimes an agreement can be reached, and sometimes one cannot. In the case of the latter, you have an absolute right to be presumed innocent and to go to trial.
But there are cases where the criminal defense attorney can recognize that you may be convicted and that it is wise to try and limit the charges and possible penalties. In such cases, like Hunter Biden’s, a pre-indictment plea agreement can be reached. In doing so, a criminal defense attorney needs to evaluate not only the strength of the evidence against his client but also the potential penalty if there is a conviction. In order for a pre-indictment plea agreement to be viable, there needs to be some benefit. If there isn’t, it doesn’t make sense to try and resolve a case early and you might as well take your chances in front of a jury.
Simply failing to file a tax return is a misdemeanor under federal law. This is exactly what Hunter Biden pled to. He already paid all taxes, including interest and penalties, that he was supposed to pay.
His situation, though, is quite different from tax evasion, a felony, which generally involves a far more complex scheme to avoid payment and is usually based on false representations within a tax return. If the return containing false statements is filed electronically, wire fraud charges often result. If the return is mailed to the IRS, mail fraud charges can result.
This was the case in the recent matter of Todd Chrisley, the reality TV star who was sentenced to 12 years in federal prison. Chrisley and his wife developed a sophisticated scheme to defraud the Government of the income tax that they were supposed to pay. Had he simply not failed a return at all, as was the case with Hunter Biden, he would have only been charged with misdemeanors.
But to sum it up, Hunter Biden pled to the exact charges that a jury could have convicted him on at trial.
Hunter Biden’s Gun Charge
When purchasing a from commercial seller (FFL), the buyer is required to fill out a form (ATF 4473) in which a number of representations are made. Among them is that the purchaser is not a user of controlled substances.
At the time Hunter Biden purchased a gun and completed such a form, he was an active crack cocaine user. Thus, the statement he made on the ATF form was false.
While he could have been charged with making a false statement on a government form under 18 U.S.C. § 1001, this is where Hunter Biden’s criminal defense attorneys did a good job.
Hunter Biden’s Deferred Prosecution Agreement
I have successfully obtained deferred prosecution agreements for clients in Arizona federal courts on numerous occasions. While they are rare, they require a defendant to plead guilty to an offense, but the sentence is deferred for an agreed-upon period of time. If the individual stays out of trouble, the case is dismissed, and no conviction results.
Deferred prosecutions in firearms cases are few and far between. Generally speaking, Department of Justice guidelines typically require no more than (1) firearm involved and that no crime of violence occurred. Several levels of supervisory approval are required to ensure that if a deferred prosecution agreement is offered, the facts and circumstances of the case are similar to other cases in which such an agreement has been offered. The firearms cases in which I have received deferred prosecution agreements for my clients have been very much on par with Hunter Biden’s.
Get an Experienced Federal Criminal Defense Attorney in Phoenix
If you or someone close to you is being investigated or has been charged in Arizona federal courts, Jason Lamm is among the most experienced federal criminal defense attorneys in the state. Besides getting misdemeanor outcomes as well as deferred prosecution agreements for his clients in federal court, he is among a very small list of attorneys who has heard the words “not guilty” after a federal jury trial; something that is not surprising as so few cases go to trial in federal court as prosecutors have a conviction rate in excess of 95%.
Federal criminal charges have to be taken seriously. And that starts with hiring a serious federal criminal defense lawyer. So no matter if it’s a tax case, a firearms offense, fraud, or drug trafficking, contact Jason Lamm at (602) 663-9100 to set up a confidential consultation. You have a problem and Jason Lamm has the solution.