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The 5th U.S. Circuit Court of Appeals recently agreed to hear arguments in the case of a Southeast Texas man seeking a rarely used writ to vacate his conviction for allegedly filing a false income tax return. Charles T. Wickersham, who formerly owned a car dealership in Beaumont, Texas, is appealing a January 2002 order by U.S. District Judge Richard Schell of Beaumont that denied his petition for a writ of coram nobis to clear his name. The 5th Circuit announced on Oct. 7 that it would hear arguments in the case in early December. “This is rare,” George W. Connelly Jr., one of Wickersham’s attorneys, says of the writ being sought. It’s also unusual to have the American Civil Liberties Union and the National Taxpayers Union — two groups that frequently disagree on issues — filing amicus briefs on Wickersham’s behalf, says Connelly, a shareholder in Houston’s Chamberlain, Hrdlicka, White, Williams & Martin. Lynne Liberato, a partner in Haynes and Boone’s Houston office who will argue Wickersham’s case before the 5th Circuit, says a writ of coram nobis is used when evidence that someone has been wrongfully convicted comes to light after the individual has served his sentence. According to his brief filed with the 5th Circuit, Wickersham served five months in prison, five months in a halfway house, a year’s probation and had to relinquish his car dealership. The brief alleges that Wickersham continues to suffer harm because he cannot obtain financing or qualify for a fiduciary bond as a result of the conviction. After Wickersham was released from prison, the government pursued him for more than $170,000 in taxes and penalties. But U.S. Tax Court Judge Juan Vasquez exonerated him of the tax liability in August 1999. Apart from Wickersham’s conviction, the “other badges of fraud are noticeably absent from the case,” Vasquez said in the opinion. In the brief filed at the 5th Circuit, Wickersham alleges that the government violated his due process rights under the U.S. Supreme Court’s 1963 ruling in Brady v. Maryland by failing to give his trial attorney key evidence of an alleged financial link between one of his “bitter enemies” and the Internal Revenue Service agent who investigated his tax return. Wickersham alleges that his defense attorney could have used the evidence to impeach the credibility of IRS Special Agent Judith Stanley, who testified against him at trial. Impeaching Stanley’s credibility could have prevented him from being convicted, Wickersham alleges. “We’re taking the position this [evidence] would have impeached the daylights out of Judith Stanley,” Connelly says. Duncan Woodford, spokesman for the U.S. Attorney’s Office for the Eastern District of Texas, declines to comment on USA v. Wickersham. Joseph Pitzinger of Dallas, a U.S. Department of Justice Tax Division attorney who represents Stanley in Wickersham’s civil suit against her and the government, also declines to comment. NO ‘BRADY’ VIOLATION Connelly says the civil action, Wickersham v. Stanley and USA, is being held in abeyance by Senior U.S. District Judge William Steger of Tyler, Texas, until action has been taken on his writ petition. In a brief opposing Wickersham’s petition for a writ, Assistant U.S. Attorney Paul Naman of Beaumont argues that no Brady violation occurred in the tax fraud case. “In the event there was error, it does not amount to a complete miscarriage of justice,” the brief alleges. Naman also argues that a court’s jurisdiction over a coram nobis petition is limited to a review of errors “of the most fundamental character” and that Wickersham has not shown that his complaint regarding alleged prejudicial misconduct in the course of the trial meets that requirement. Wickersham alleges in his brief that Stanley concealed her alleged personal relationship with the late Curtis Smith as well as “the genesis of the investigation.” The brief alleges that Smith had a grudge against Wickersham, who helped defeat Smith in his bid for re-election to the Orange County Port and Navigation District Board. Smith, who was a friend and an alleged business partner of the IRS agent’s father, asked Stanley to investigate Wickersham for tax evasion on his 1989 return and gave her $21,700 during the course of the investigation, the brief alleges. The brief further alleges that Smith helped Stanley pay for her college education. The government contends in its brief that the approximately $21,700 that Smith gave Stanley was used to pay off mortgages on several properties. After the properties were sold, Smith was repaid, the government says in the brief. The IRS investigated Wickersham’s allegations of impropriety against Stanley and exonerated her, the government’s brief says. Wickersham was convicted in December 1992 of filing a false tax return for claiming the sale of a grain elevator to the Orange County Port and Navigation District was done under the threat of condemnation. His tax attorney advised him to obtain a letter from the district board stating that the district intended to acquire the grain elevator through eminent domain, Wickersham alleges in the brief. The tax attorney also advised him that he could defer taxes on the income from the sale by using the money to buy a shopping center, the brief alleges. Wickersham fully disclosed those transactions in his tax return, his brief says. According to his brief, Wickersham’s 1989 tax return arrived at the IRS Austin Service Center on Oct. 12, 1990. The brief alleges that on the same day, Stanley picked up a check for $1,100 at Smith’s office and was urged by Smith to investigate Wickersham for tax evasion in connection with the grain elevator sale. In his brief, Wickersham alleges that Stanley began investigating him before any IRS employee had looked at his tax return and recommended to her superiors that he be convicted. The government alleges in its brief that the FBI was investigating the “highly questionable” grain elevator transaction before Stanley looked at his tax return. However, Wickersham alleges in his brief that his tax return was not being investigated before Stanley started looking at it. Although Wickersham was indicted on seven counts, including conspiracy, he was convicted only for filing a false tax return. Michael Skadden, who filed an amicus brief on behalf of the ACLU, says that if the jury who convicted Wickersham had known that the IRS agent allegedly had a relationship with the person who instigated the investigation of the tax return, it never would have convicted him. “If the prosecution gets away with not turning over information legitimately requested in discovery, that is just not right,” says Skadden, with Skadden & Associates in Houston. Skadden, who worked on the brief pro bono, says he’s interested in the case because it involves a petition for a writ of coram nobis. “A person who’s wrongly convicted really needs an avenue to clear his name,” he says. J. Carlton Howard Jr., a shareholder in Ritzert & Leyton in Fairfax, Va., filed the amicus brief for the National Taxpayers Union. The organization’s interest is due to the alleged misconduct by the IRS agent, he says. Howard believes it’s a “very unusual” procedure for a special agent to retrieve an income tax return that has not been reviewed by anyone at the IRS.

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