Select Public Cases
Note: Although all of the matters described below were public cases (which are all now closed), we are including only the initials of the client (with the exception of Mr. Manafort, whose case was extremely well publicized) in order to maintain each individual's privacy to the extent possible
United States v. D.R. (NDNY). Tax conspiracy case involving unreported income related to stock trading. The defendant was charged alone despite the government's conspiracy theory and the restitution component of the case was successfully limited to just the loss directly related to the defendant, i.e., not joint and several liability with other co-conspirators. The defendant received a sentence significantly below the low end of sentencing guidelines range and even more significantly below the sentence advocated by the government, which urged a term of imprisonment close to the high end of the range.
United States v. S.C. (EDNY). Criminal payroll and sale tax investigations. Mr. Ketcham was part of a team that zealously defended and advocated for the target of investigations brought by both state and federal prosecutors. The NYS case was resolved with a corporate plea; while the charges against in the individual client were dismissed. The federal case was resolved with a guilty plea to a single-count information that charged a tax loss under $200,000, despite the government's initial theory that the client was responsible for millions in unpaid tax. The client received a probationary sentence, despite advisory guidelines that suggested imprisonment and in the face of strenuous arguments from the prosecution that the client should receive a term of incarceration to send a message of general deterrence.
United States v. Paul J. Manafort, Jr. (EDVa & DDC). Federal criminal case involving bank/mortgage fraud allegations and tax-related charges that involved both unreported income and undisclosed foreign assets. Ketcham served on the trial team during a three-week trial in federal court in Alexandra, VA that resulted in convictions on several counts and a mistrial declared on other counts. The defendant ultimately entered a global guilty plea in the District of Columbia and received a combined sentence significantly below the advisory sentencing Guidelines. Mr. Ketcham served as the lead drafter on the sentencing briefs filed in both Districts. The client ultimately received a Presidential pardon.
In his book, Political Prisoner, the client discussed Mr. Ketcham's role in the case.
Following my transfer to Alexandria from Northern Neck, our attention turned to jury selection. The Virginia jury selection was the first I'd ever been involved in. As we prepared for the process, we brought Brian Ketcham, a young partner from Kostelanetz and Fink who specialized in juries.
When it came to figuring out the preferences and prejudices of the prospective jurors, I had a secret weapon. One of the attorneys on my team, Brian Ketcham, was an expert in the analysis of potential jurors. Brian organized a process which allowed me to focus on the answers the jurors had provided. Between Brian's insights and my experience in reading polls and attitudes, we built a matrix that allowed us to dig down on the attitudes and prejudices of the potential jurors.
There were very few definite yesses. Brian, our jury expert, and I got deep into conversation to put our list together. I felt I could get a fair jury in Virginia based on the material I had in front of me. But I was still nervous. There were many unknowns.
When Brian and I went through the results, we found one potential juror we felt could be favorable.
(Ultimately, the Virginia jury convicted on 8 of 18 counts. The Court declared a mistrial on the remaining 10 charges, which were ultimately dismissed.)
United States v. G.B. (EDNY). Federal criminal case involving unreported income and foreign accounts. The defendant was ultimately charged with a single count of making a false statement to an IRS during a civil audit and received a sentence of probation, despite advisory sentencing Guidelines of 18-24 months' imprisonment.
United States v. A.D. (SDNY). Federal criminal case involving charges of honest services fraud. Mr. Ketcham assisted in preparation for sentencing and at the sentencing hearing, where the defendant received a sentence of one year and one day, far below the many years of imprisonment contemplated by the advisory sentencing Guidelines.
United States v. J.C. (EDNY). Federal criminal case involving false income tax returns. After negotiating a favorable plea agreement, the defendant waived indictment and received a sentence of six months' imprisonment, well below the advisory sentencing Guidelines and the Probation Department's recommendation of 18 months' imprisonment.
United States v. S.K. (EDNY). Federal bank fraud case involving allegations of check kiting. The defendant received a probationary sentence, despite advisory sentencing Guidelines that contemplated approximately 10 years of imprisonment.
United States v. H.H. (EDNY). Federal tax case involving a tax return preparer charged with aiding and abetting the preparation of false tax returns; specifically, Schedule C expenses and charitable deductions. The defendant received a probationary sentence, despite advisory sentencing Guidelines that suggested 18-24 months of imprisonment.
United States v. K.H. (SDNY). Federal tax and FBAR case related to allegations of failure to report and pay tax on income from foreign financial accounts. The client was a disbarred attorney who faced advisory Sentencing Guidelines 37-46 months imprisonment yet was sentenced to a term of just six weeks, which was served in a Federal Medical Center.
United States v. D.V. (SDNY). Federal wire fraud case related to an alleged “honest services” kickback scheme investigated by the U.S. Postal Service that involved payments to a non-profit healthcare organization. A plea agreement on very favorable terms with stipulated Guidelines was negotiated and, despite a Guidelines range that contemplated up to two years' imprisonment, the client received a sentence of probation.
Select Private/Confidential Matters
Multiple subjects and/or targets related to the SDNY U.S. Attorney's investigation and prosecution of NCAA student-athlete wire fraud allegations and NBA health care plan fraud allegations. After multiple subpoena responses and attorney proffers the prosecutors ultimately decided to not bring charges against the client.
Multiple unrelated audits related to client investments in so-called syndicated "conservation easement (SCE) investments, together with representations of so-called promoters of these investments. Although conservation easements are permitted under the Internal Revenue Code, the IRS has recently undertaken a nation-wide initiative to examine these types of investments and, in many cases, has sought to disallow charitable deductions that arose from donations of easements designed to conserve natural lands.
SDNY/IRS-CI criminal investigation of suspected abusive charitable organization. After several proffer meetings and presentations, no criminal charges were filed.
Queens County DA's Office investigation of individual suspected of sales tax fraud. Negotiated a favorable cooperation agreement and the client was never charged with any wrongdoing.
New York County DA's Office criminal investigation of restaurant suspected of sales tax violations in connection with offering catering services for reduced fees for customers who paid cash. After multiple meetings and presentations to the prosecution team, the DA's office decided to not proceed with any criminal charges and the matter was referred to the civil audit unit, where the case was resolved on favorable terms that allowed the business to maintain its NYS liquor license.
NY AG's Office criminal tax investigation involving suspected payroll and sales tax violations at a large NY-based business with multiple locations throughout the United States. After extensive motion practice the AG's Office agreed to dismiss the charges against the client in exchange for a favorable corporate disposition and a fine. The business was able to maintain its NYS liquor license and continues to grow and prosper.
Long-running representations of several witnesses in high profile politically connected investigations. The witnesses received immunity and ultimately avoided grand jury appearances.
EDNY criminal investigation of an attorney suspected of structuring financial transactions to avoid currency reporting regulations. No criminal charges were ever brought, there were no adverse consequences related to the client's law license, and all civil sanctions/penalties were successfully avoided.
NYS Department of Taxation and Finance (DTF) residency audit where DTF asserted that the client was a full-time resident of the State for tax purposes. The case was resolved when it was established that the client's use of his own private plane to temporarily take off and land from locations in NYS was insufficient presence in the State. The audit was resolved with no tax or penalties assessed.
SDNY criminal investigation of businessman investigated for purported unreported foreign financial accounts and tax evasion. No criminal charges brought, and all civil penalties were successfully avoided. After post-investigation negotiations with the IRS, the client received a refund of previously overpaid taxes.
DOJ Tax Division criminal investigation of individual suspected of unreported foreign assets and income related to rental properties located abroad. No criminal charges were brought, and all civil penalties were successfully avoided.
IRS OVDP “Opt-Out” matter. Following a multi-year review of the client's OVDP submission, the client opted out of the OVDP penalty structure (which at the relevant time required payment of a an “offshore miscellaneous” (aka FBAR) penalty equivalent to 25% of the high value of a Swiss bank account. The IRS agreed to forgo both willful and non-willful penalties and instead agreed to issue a simple “warning letter” to the client.
IRS OVDP “Opt-Out” matter. Following a multi-year review of the client's OVDP submission, which led to additional inquiries from the IRS related to the client's domestic business dealings, the client opted out of the OVDP. After more than two years of negotiations and several appeals to senior IRS personnel, the government agreed to contract the audit period from eight years to just three years and further agreed to not seek any penalties for failure to file FBARs or report interests in foreign corporate entities. The client's liability was reduced from approximately $1.5 million (under the terms of the OVDP), to under $100,000.
IRS OVDP “Opt-Out” matter. Following an over five-year review of the client's OVDP submission the IRS proposed an approximately $4.7 million “offshore miscellaneous” (aka FBAR) penalty, in addition to substantial PFIC and other investment taxes covered the eight-year OVDP lookback period. The client opted out of the OVDP. After a three-year examination, the IRS agreed to limit the audit period to just three years and dropped the proposed FBAR penalty. The client ultimately resolved the case with no tax or penalty liabilities. The client also participated in the NYS voluntary disclosure and compliance program and avoided all potential penalties and ultimately received a tax refund from the State.
Offshore audit (IRS NYC SB/SE). Multi-year audit that covered over a decade of tax years. The matter was referred from the civil examination team to IRS Criminal Investigation but was successfully transferred back for civil resolution. The case was ultimately settled on very favorable terms using the IRS's Fast Track Mediation Program after years of contentious audit disputes.
In criminal cases, Mr. Ketcham's steadfast goal is always to try and convince the government to not bring a charge against his client or, where possible, to resolve an investigation with a civil penalty. When the government does bring a prosecution, Mr. Ketcham is a tireless advocate in court. In all cases where a client has been criminally charged, the client has ultimately received a sentence of a probation or a period of imprisonment vastly below the low-end of the federal sentencing guideline range. Mr. Ketcham works just as hard in civil cases and audits, bringing a creative problem solving approach to persuade adversaries to work towards a resolution acceptable to the client.
PLEASE NOTE: Prior results do not guarantee a similar outcome.
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