Appellate Judges

Respectfully Judge Thompson, the Enhancement Comparison to Attorney Cohen is Dead Wrong. Here’s Why…

A Lawyer is “An Officer of the Court”, Held to a Higher Standard and Had The All Important IOLTA Accounts and Perceived Credibility and Trust.

A Lawyer is “An Officer of the Court”, Held to a Higher Standard and Had The All Important IOLTA Account and Perceived Credibility and Trust

United States v. Grullon, No. 19-1780 (1st Cir. 2021)

APR 29, 2021 | LIT OPINION

It is certainly recognized that this opinion has been well drafted and crafted. It’s written in language understandable to the citizens and general public, which is often overlooked in many opinions. Judge Thompson offers for example, a simple definition of “motion in limine” (p. 10, incl. footnote 8) and that attention to detail is appreciated.

That stated, LIT cannot agree with the reasoning asserted in defense of the opinion section related to the enhancement disparity between the attorney (who was part of, and indeed, the master of this tax fraud scheme for reasons we will explain herein), and the  co-defendent in this appeal, Grullon.

First we’ll extract the relevant part of the opinion below which we object to;*

*Laws In Texas (“LIT”) is operated by non-prisoners, non-lawyers. This is our own editorial opinion, based on a limited review; namely the opinion itself without the benefit of reviewing any of the dockets at either the appeals court or the lower court in this case and the case of former attorney Cohen. LIT’s commentary is based on the opinion as provided herein and without fact-checking court records.

(LIT has checked Cohen’s attorney status. R. David Cohen tendered his resignation in 2018 and he was duly disbarred in 2019 with the effect of disbarment backdated to 2016 – we assume so he can reapply after his probation period – along with an article from 2016 related to his sentencing).

ii. Enhancement disparity relative to Cohen

Perhaps because of the weakness of that argument, Grullon pivots, contending the enhancement was undeserved because the judge did not apply it to Cohen a few years earlier (recall that Cohen received fifty-four months imprisonment whereas Grullon received eighty-four).23

As we have said, we will “examine[] arguments . . . that a sentence was substantively unreasonable because of the disparity with the sentence given to a co- defendant.”

United States v. Galindo-Serrano, 925 F.3d 40, 52 (1st Cir. 2019) (alteration and omission in original) (quoting United States v. Reverol-Rivera, 778 F.3d 363, 366 (1st Cir. 2015)) (modification in original), cert. denied, 140 S. Ct. 2646 (2020).

Although Congress drafted the criteria primarily with “national [sentencing] disparities” in mind, we also scrutinize whether “a sentence was substantively unreasonable because of the disparity with the sentence given to a co-defendant.”24

Galindo-Serrano, 925 F.3d at 52 (quoting Reverol-Rivera, 778 F.3d at 366).

23 The government also neglects to engage directly with this argument, but Grullon once more makes nothing of it in his reply brief and neither will we.

24 Although tried separately, the grand jury indicted Cohen and Grullon together as codefendants.

As the sentencing guidelines point out, the role-in-the-offense enhancement exists so as to allocate punishment appropriately based on “relative responsibility.” U.S.S.G. § 3B1.1 (comment).

We turn down disparity claims when “material differences between” the defendant’s “‘circumstances and those of the more leniently punished confederates,'” justify the divergence, including the more severe criminal history of the more severely punished codefendant. Galindo-Serrano, 925 F.3d at 52 (quoting United States v. Reyes-Santiago, 804 F.3d 453, 467 (1st Cir. 2015)).

To succeed, the “defendant must compare apples to apples,” which means we pay close attention to “two identically situated defendants receiv[ing] different sentences from the same judge.” Reyes-Santiago, 804 F.3d at 467 (quoting United States v. Rivera–Gonzalez, 626 F.3d 639, 648 (1st Cir. 2010)).

Such cases, however, are unusual to say the least. See id.

The judge (who, recall, was the trial and sentencing judge for Cohen) explained at length why he found Grullon more culpable than Cohen, including that:

(1) Grullon was an “architect” who “dr[ew] some people into” the scheme;

(2) Grullon had a much lengthier criminal history than Cohen, who had none, which mattered for the judge’s assessment of relative culpability even if the history did not alone add any offense levels under the sentencing guidelines;

(3) Grullon, unlike Cohen, kept himself “in the background” to “tak[e] advantage and us[e] the others” as fronts; and

(4) unlike Cohen, Grullon would not be subject to the restitution order because Grullon would be deported to the Dominican Republic following his release from prison, and probation had no jurisdiction over him there.25

Overall, the judge found Grullon “more culpable than Mr. Cohen” and without the “lifetime of good works” Cohen had apparently accumulated, which is why he felt comfortable giving Grullon a tougher sentence.

There was no abuse of discretion given the judge’s thoughtful reasoning about why he punished Grullon more harshly than Cohen.

See Reverol-Rivera, 778 F.3d at 367; Vargas, 560 F.3d at 49 (trusting the factfinder at sentencing).

25 The judge was not punishing Grullon more harshly than Cohen because of a relative lack of funds. He noted that Grullon likely would not have to pay restitution as a “practical” difference between Grullon’s and Cohen’s circumstances since Cohen would remain subject to probation’s jurisdiction in the United States.

LIT contends the length of the fraud against the IRS, starting in 2011 and ending in 2014, would have been considerably shorter without the participation of a corrupt and unethical officer of the court and lawyer like R. David Cohen. Fully cognizant of the laws he would be breaking, he kept up the scam for as long as possible and 13 months after Grullon’s hasty departure.

“To suspicious tellers, Cohen insisted the money came from his legal clients, but bank employees observed Cohen writing himself checks from the IOLTA account into which he had just deposited the alleged client funds. The checks’ amounts approximated what he had just put into the bank.” (p.3).

For example, Grullon was clearly aware of the increasing risk and fled the country, but Cohen carried on with the scheme to defraud the IRS by continuing to wash the money from November 2013 until December 2014. It would be inconceivable to believe Cohen was naive to the escalating scrutiny by the banks and combined with Grullon’s departure, this would not raise questions from an intelligent lawyer familiar with the laws.

The Investigation

“Grullon’s departure was not necessarily coincidental. After banks voiced suspicions about Grullon and Cohen depositing United States Treasury checks in other people’s names and after the IRS issued a number of reclamation notices to those banks, the IRS’s Criminal Investigations Division began investigating the conspiracy in July 2013.” (p.8).

Indeed, Judge Thompson highlights the $400,000 washed in October 2013 which is clearly a frantic effort by Grullon to amass as much cash for as possible for what would be his November departure from the United States of America. With Grullon gone, LIT suggests that Cohen saw an opportunity to rake in the IRS proceeds for his own personal gain. Over the next 13 months, that is exactly what Cohen did as he kept laundering the cash.

The conspiracy lasted until December 2014, but Grullon stopped participating in November 2013 when he fled to the Dominican Republic, allegedly to begin a fruit and vegetable export business. Between October 2011 and November 2013, the trio defrauded the U.S. Government of at least $1,604,000.28 across five banks in Massachusetts using 246 fraudulent checks, cashing around $400,000 in October 2013 alone. (p.7/8).

As cited in this opinion, your own summary contradicts the argument that corrupt attorney Cohen’s sentence was not disparate to Grullon’s, it clearly is.

“Unfortunately for Grullon, his reply brief all-but- admits he deserved the enhancement…” (p.25).

LIT CONCLUSION

The Court of Appeals for the First Circuit and the lower court in Massachusetts are in keeping with the rest of the judiciary. There is certainly not a “circuit split” when judges are sentencing fellow lawyers – they always receive much shorter sentences than those given to non lawyers. A review of this blog will confirm our findings as factual and accurate.

Until the judiciary applies the sentencing guidelines (or sanctions and awards in civil cases) against lawyers and judges who act unlawfully or unethically with the same standard applied to non-lawyers, the people will continue to distrust the court system and the standard of “Justice”.

Judges not applying the laws evenly or fairly has reached an epidemic and it is time for change. We look forward to the day – which we sincerely hope is very soon – where we can hat tip every judge and circuit court for their fair and equitable opinions and orders because justice has the appearance of justice.

Attorney gets 4-1/2 years in prison in IRS fraud scheme

JUNE 2, 2016 | REPUBLISHED BY LIT; APR 29, 2021

Attorney R. David Cohen was sentenced to 4-1/2 years in jail on Wednesday for his role in a tax refund check-cashing scheme.

Cohen, 64, of 30 Enfield St., had a law office in Medford but had lived in town for a number of years, according to his attorney, James Krasnoo of Krasnoo, Klehm & Falkner in Andover.

The charges against him were filed by U.S. Attorney Carmen Ortiz, who said in a press release that Cohen was sentenced by U.S. District Court Judge Leo T. Sorokin in connection with his role in converting and laundering more than $1.6 million in fraudulently-obtained IRS refund checks through several different bank accounts.

In addition to the sentence of 54 months in prison, which he must serve starting July 6, he also must serve three years of supervised release during which time he is not permitted to practice law or act as a notary.

The court also ordered Cohen to pay over $1.6 million in restitution as well as forfeiture. Court documents show that a property in Florida is the subject of forfeiture.

Krasnoo explained that Cohen doesn’t actually own the Andover house he currently resides in.

In January 2016, Cohen was convicted by a federal jury of one count of conspiracy to convert government funds, 14 counts of conversion and receipt of stolen United States property, and one count of conspiracy to commit money laundering.

Krasnoo said the sentencing hearing, held Tuesday and Wednesday, was attended by 50 people the first day and another 20 people the second day, who were there to support his client.

“It is an unheard of phenomenon,” Krasnoo said. “It was even commented on by the judge. It’s very rare he finds that show of support in that multitude.”

In addition to the presence of supporters, dozens of letters were sent on behalf of Cohen, known by many letter-writers as “R. David.”

Many of the letters were from clients whom Cohen had helped over the years. But many friends, and his own daughter, filed letters testifying to the fact that Cohen was not a typical, money-driven lawyer but a friend who could be counted on when things got tough.

“This man couldn’t do anything wrong to anyone, period,” said one letter-writer, a man from Revere named Ralph Epstein. He is “the most caring man I know. … kind and thoughtful.”

Many of the letters professed not to know anything about the case their friend was involved in, but said it was unlikely he broke the law, as one wrote, “on purpose.”

Krasnoo said the letters were taken into account by the judge.

“There were over 92 letters written in support attesting to all of the good deeds and acts that he did,” Krasnoo said.

They appeared to have some kind of positive effect, as prosecutors sought a 7-year term while Krasnoo pushed for a 2-3 year term.

In the end, he got somewhere in between.

Two co-defendants were also involved in the case, including Francisco Oscar “Frank” Grullon of Andover, who has been indicted in the case but is now a fugitive from justice.

Krasnoo said it is “believed” Grullon is now living in the Dominican Republic.

The other co-defendant, Dubin Gonzalez-Pabon, was convicted and is awaiting sentencing. Krasnoo said Gonzalez-Pabon testified against his client during the sentencing hearing.

Cohen’s attorney said his client was “duped” by Grullon.

According to the U.S. Attorney’s office, Cohen engaged in a scheme in which individuals filed fraudulent tax returns with fictitious W-2 information, usually a name and social security number of a resident of Puerto Rico, whose residents are not required to file federal income tax returns. Once the fraudulent returns were accepted by the IRS, refund checks were sent to designated addresses in Lawrence, East Boston, and New York controlled by Cohen’s co-conspirators.

Beginning in October 2011, Cohen and his co-conspirators deposited over 100 fraudulently-obtained tax refund checks totaling over $1 million into banks to launder them through Cohen’s “Interest On Lawyer’s Trust Accounts” (IOLTA), as well as through bank accounts in the name of AD Professional Association, Inc.

When questioned by bank officials about the large amount of U.S. Treasury checks Cohen was depositing and negotiating through his IOLTA and personal accounts, Cohen falsely claimed that the payees were his clients. When one bank requested proof concerning one of the IRS refund checks, Cohen provided a fake participation agreement and affidavit purporting to state that he had the client’s authority to deposit her IRS refund check into his IOLTA account.

Krasnoo said he and his client are “contemplating appeal. But we have not yet determined whether it should be taken up.”

He said Cohen is divorced and has one, adult daughter. He said once the house he lives in is sold, he will “have no place to live.”

Further, he said, he is no longer allowed to practice law. If he isn’t disbarred, he may be allowed to practice law once he’s out of jail. By then, he will be 71 years old.

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Respectfully Judge Thompson, the Enhancement Comparison to Attorney Cohen is Dead Wrong. Here’s Why…
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