Judge: Government Is Prosecuting Actor Wesley Snipes for Tax Fraud Because He's Famous, Not Because He's Black

I previously blogged actor Wesley Snipes' attempt to plays the race card in his tax fraud prosecution for seeking $12 million in tax refunds and failing to file returns for six years (see links below the fold).  In June, Snipes filed a motion to dismiss the indictment arguing that the indictment was "impermissibly brought on the basis of Mr. Snipes' race" and should be "dismissed based on selective prosecution" on the ground that his two white codefendants, Douglas Rosile and Eddie Kahn, have not been charged with failure to file tax returns as Snipes has been. Snipes also played the victim card, claiming he was "a victim of unscrupulous tax advice," not a willing participant in a criminal conspiracy hatched by Rosile and Kahn.

The trial judge this week rejected Snipes' argument, ruling that the government is prosecuting him because he is famous, not because he is black:

Defendant Snipes’ effort to show racial prejudice in his prosecution is limited to the factual allegation that the Government is well-aware that co-Defendant Kahn, who is Caucasian, has not filed any income tax returns for the tax years 1997-2002, yet the Government has chosen not to charge Kahn with willful failure to file. According to Defendant Snipes, the Government’s refusal to charge Kahn, while focusing solely on Defendant Snipes, demonstrates that prosecuting him for failure to file has a discriminatory effect, and was motivated by a discriminatory purpose. This non sequitur is a far cry from clear and convincing evidence of unconstitutional motivation, especially where the record clearly shows that Defendants Snipes and Kahn are not similarly situated persons.

From a prosecutor's point of view, especially in tax cases, the primary objective in deciding whom to prosecute is to achieve general deterrence. Here, Defendant Snipes is admittedly a well known movie star, and a person of apparent wealth, whose prosecution has already attracted considerable publicity. By contrast, the Defendant Eddie Ray Kahn does not appear to share Defendant Snipe's notoriety. "Since the government lacks the means to investigate and prosecute every suspected violation of the tax laws, it makes good sense to prosecute those who will receive, or are likely to receive, the attention of the media." United States v. Catlett, 584 F. 2d 864, 868 (8th Cir. 1978); see also United States v. Hastings, 126 F.3d 310, 314 (4th Cir 1997) (no selective prosecution in case against prominent businessman and Republican party leader charged with failure to file income tax returns).

United States v. Snipes, No. 5:06-cr-22-Oc-10GRJ (9/5/07).  For more, see Joe Kristan.  For prior TaxProf Blog coverage, see:

• Wesley Snipes Indicted on Tax Fraud Charges After Seeking $12 Million Tax Refund (10/17/06)
• NY Times on the Wesley Snipes Indictment (10/18/06)
• Wesley Snipes Update (10/22/06)
• Snipes Settles Tax Fraud Charges, Will Avoid Jail Time (11/3/06)
• Prosecutor: No Deal in Wesley Snipes Tax Fraud Case (11/4/06)
• More on Wesley Snipes' Non-Settlement of Tax Fraud Charges (11/7/06)
• Actor Wesley Snipes Claims He's "Scapegoat" in Tax Fraud Prosecution (11/22/06)
• Actor Wesley Snipes Turns Himself in on Tax Fraud Charges (12/8/06)
• Actor Wesley Snipes Plays Race Card in Tax Fraud Case (6/11/07)