Armstrong attorney: Split verdict invalid

From Jamie Satterfield:
If former state Rep. Joe Armstrong did not try to evade taxes, he cannot be guilty of filing a false tax return.

So argues Armstrong’s defense attorney, Gregory P. Isaacs, in a motion filed Monday in U.S. District Court asking a judge to either judicially acquit Armstrong of the felony filing a false tax return conviction he suffered this month or grant the now ex-lawmaker a new trial.

Testimony showed Armstrong voted for a 42-cent hike in the sin tax. He then made a deal with Tru Wholesale’s owners to buy the stamps at the lower rate and then resell them at the new, higher price. That transaction was not illegal.

But assistant U.S. attorneys Charles Atchley Jr. and Frank Dale argued Armstrong conspired with his accountant, Charles Stivers, to funnel the windfall through Stivers’ firm to conceal the wholesaler as the source and keep it off his 2008 tax return. Armstrong denied that, testifying he paid Stivers $77,000 to cover what he believed was a capital-gains tax owed and a fee for handling his taxes. Stivers insisted that money was simply his cut for laundering the money and hiding it from the IRS.

Stivers conceded he repeatedly lied both to IRS Criminal Investigation Division agents and accounting board officials in Kentucky and, in the course of those lies, both implicated Armstrong and deemed him innocent. The jury rejected the two counts based largely — Isaacs argues in his motion entirely — on Stivers’ testimony, acquitting Armstrong of conspiring with Stivers and “willfully” attempting to evade taxes.

But the jury convicted Armstrong of “willfully” aiding, abetting, assisting and causing a false tax return to be filed.

In his motion, Isaacs argues the law required the prosecutors to present evidence distinguishing the crime of tax evasion, of which Armstrong was acquitted, the very similar charge of filing a false tax return. They didn’t, he argues, and Senior U.S. District Judge Thomas Phillips should have tossed out the filing a false tax return charge before the jury even began deliberating.

…Isaacs also contends the jury’s verdict makes no legal sense since they rejected the same proof of evasion that they accepted in the filing of a false tax return count.