Tuesday, October 27, 2020

Court Vacates Enhanced Sentencing For Perjury In $2.7M Tax Fraud Case

According to Law360, aNorth Carolina federal court wrongly applied an obstruction of justice enhancement to the 46-month sentence of a man convicted of tax fraud totaling more than $2.7 million, and he must be resentenced, the Fourth Circuit said Thursday.

The three-judge panel vacated Arthur Joseph Gerard's sentencing in a North Carolina district court for helping a holistic medicine business' conspiracy to hide more than $2.7 million from the Internal Revenue Service. 

The appellate court upheld Gerard's conviction, but found the lower court didn't fully explain how Gerard's testimony satisfied the three elements of perjury that would support the sentence enhancement for obstruction of justice, according to the per curiam opinion.

"While the court found that Gerard's testimony was contradictory and false, the court did not rule on whether the false testimony was material or given willfully," the court said.

Gerard was sentenced in November to 46 months in prison to be followed by three years of supervised release, and was ordered to pay nearly $568,000 in restitution, according to court documents.

On appeal, Gerard had argued that the lower court failed to detail an example where his testimony could be considered perjury that would warrant a sentence enhancement for obstruction of justice, according to court documents. In the lower court's opinion, there was inadequate discussion of why the sentence enhancement was warranted and a failure to "identify any explicit findings regarding perjury," Gerard said in his appeal brief.

Meanwhile, the U.S. government argued that the rationale for the sentence enhancement was properly laid out in the lower court's opinion, clearly identifying several of Gerard's statements as false, according to its brief.

The case is U.S. v. Arthur Joseph Gerard III, case number 19-4858, in the U.S. Court of Appeals for the Fourth Circuit.

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