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CAC3PARC 12
1 where you can have waiver, but ineffective assistance. And I
2 think it is that that Judge Easterbrook had in mind when he
3 said you have to think about each of these doctrines separately
4 and you can probably have every combination of them.
5 THE COURT: All right.
6 MR. SHECHTMAN: Look, on the prejudice prong, I would
7 just say this. There were acquittals on all but two of these
8 counts. Mr. Parse is not situated that much differently than
9 Mr. Brubaker, and the proof as it came in didn't come in much
10 differently. There is a sort of lovely irony here that the
11 government cooperator who the Jenkins lawyer dealt with him was
12 actually a witness, and so, the Kramer Levin firm got to
13 cross-examine him. And in a sense having him as a cooperator
14 was helpful to their side because they established that their
15 client, like the taxpayers and everyone else, was told
16 repeatedly this is lawful. What distinguishes these two men is
17 the, quote, backdate.
18 And what I've tried to say in my papers is I think the
19 government was very good at trial in turning this into a
20 backdating case. I don't think that's what the Deutsche Bank
21 records show. They are doing these in February and March and
22 putting them on February and March statements and they're
23 putting "as of." They're then going out to what are very
24 accomplished tax preparers who were getting February, March
25 statements. And know there was a mistake and are then filing
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