Rare Defense Full Acquittal by Bingham Attorneys Nathan Hochman and Daniel Saunders in Los Angeles Federal Criminal Tax Case

Sep 29, 2011, 15:50 ET from Bingham McCutchen LLP

LOS ANGELES, Sept. 23, 2011 /PRNewswire/ -- In a rare defeat for the U.S. Department of Justice, a federal jury late on Friday, September 16, 2011, fully acquitted Howard H. Berger, a business consultant, on all four criminal tax charges that he faced after less than an hour of jury deliberations.  Mr. Berger's attorneys from Bingham McCutchen LLP, Nathan Hochman, the former head of the U.S. Department of Justice's Tax Division, and Daniel Saunders, a former federal prosecutor who prosecuted the Anthony Pellicano wiretapping cases, stated: "The jury's verdict in near record time demonstrates, as we have argued repeatedly, that this criminal prosecution was meritless and should never have been brought."

Mr. Berger had been charged with filing his 2006 personal income tax return and a 2006 partnership return that allegedly had claimed a false deduction for a $1 million charitable donation, as well as submitting an allegedly false gift letter to the IRS during an audit.  Mr. Berger was also charged with lying to IRS agents about whether he had access to the charity's bank accounts and bank statements.

At trial, the government's case crumbled.  First, the evidence showed that Mr. Berger never signed, authorized, or even reviewed his 2006 personal income tax return before it was electronically filed with the IRS.  The reason for this was that four days before the return was due on October 15, 2007, Mr. Berger's then 4-year old son was kidnapped from his pre-school by Mr. Berger's ex-wife, who, using false passports, fled the United States with Mr. Berger's son through five different countries and ultimately to her native country of South Africa.  This was the second time the ex-wife had kidnapped Mr. Berger's son.  In 2005, she had refused to return the child to the United States after taking him to South Africa to visit her family.  On that occasion, working with the U.S. State Department, Mr. Berger filed an application under the Hague Convention for International Child Abduction, fought an eight-month battle in the South African courts, and eventually got a court order to return his son back to Santa Monica in late 2006.

Second, the evidence showed that Mr. Berger's alleged false statement to IRS agents concerning his access to the charity's bank accounts or statements was in fact never made.  The IRS Criminal Investigation Special Agent who conducted the interview of Mr. Berger admitted on cross-examination that he had failed to tape record the statement despite having a tape recorder with him at the time, failed to have the statement transcribed, and was not able to remember either the specific question that was asked or the verbatim answer provided by Mr. Berger.  The agent further conceded that the alleged statement appeared nowhere in any of his contemporaneous notes of the interview.  To the extent that a fragment of the statement was referenced in his co-agent's notes, it appeared in a section of the interview dealing with a different topic, namely, whether Mr. Berger knew of the contributions to the charity made by Texas billionaire Richard Rainwater.  The agent ultimately confessed that, when viewed in its proper context as elicited in the interview, Mr. Berger's statement was, in fact, 100% truthful.

"This case began with a malicious and indefensible public arrest of Mr. Berger in front of his son's elementary school after he dropped his son off on a Friday morning and ended with the jury's complete repudiation of all of the government's baseless accusations," stated Mr. Hochman and Mr. Saunders.

Mr. Berger stated, "For the third time, I found myself as a single father fighting for justice and to defend the welfare of my child.  I attribute my ability to successfully defend myself and my son's welfare to the tremendous talent, passion and hard working ethics of my defense team, Mr. Hochman and Mr. Saunders."

Bingham, www.bingham.com, offers a broad range of market-leading practices focused on global financial services firms and Fortune 100 companies.  The firm has 1,100 lawyers in 13 locations in the United States, Europe and Asia.

SOURCE Bingham McCutchen LLP