What Motivates Prosecutors to Not Bring Criminal Charges?

Your liberty in the hands a prosecutor is like being a small bird in the hands of an often callous, tight-fisted giant. Justice is supposed to be their clarion call. Don’t hold your breath waiting for that revolutionary insight for too many close-minded prosecutors. But rules do dictate which policies they are supposed to follow and which procedures they are supposed to obey in deciding when, and whom, to ask the grand jury to indict, and for what. The pronounced Principles of Federal Prosecution recommends a prosecution “should be declined” whenever the “substantial federal interest” would not be well served by it.  This includes each of the following:

  • consideration of federal law enforcement priorities;
  • the nature and seriousness of the alleged crime;
  • the deterrent effect of the prosecution on others;
  • your purported culpability in connection with the alleged crime;
  • your history with any allegations of criminal activity;
  • your willingness to cooperate in the investigation or prosecution of others;
  • the probable sentence or other consequences when the person is prosecuted and convicted.

Let’s consider each:

  1. Priorities. If the case is an IRS criminal investigation, the priorities might be masked — the real priority might be elimination of political dissent about taxes in certain quarters, or reducing the amount of non-cash means of currency (such as alternative banking or private banking), or something similar. But one priority trumps them all — losing credibility with the public. Corrupt prosecutions of federal charges against innocent individuals is never a priority.
  2. Seriousness. If the case is an IRS criminal investigation, then the seriousness is measured by the “tax loss” tables in the sentencing “guidelines.” Usually, the IRS needs proof of multiple years of consecutive tax evasion (or tax fraud or false returns) with an unpaid tax of $200,000 or more due and owing before it fits their definition of a serious case.
  3. Deterrence. In short: how will the public react? The “big one” in any IRS criminal investigation. Following are the kinds of case  a prosecutor is supposed to decline to ask the grand jury to indict — and most commonly will: A case that leads to embarrassment of an IRS criminal investigation, exposure of misconduct by an IRS criminal investigator, dismissal by a federal judge or federal appeals court, a victory at trial by a jury voting to acquit you of any serious charges — or any other consequence that makes the IRS criminal investigation look bad.
  4. Culpability. Remember avoiding taxes is not criminal tax evasion nor criminal tax fraud nor criminal conduct period. If you made a mistake, how responsible for that mistake are you? If you can show you are not that responsible, then the prosecutor is supposed to decline to ask the grand jury to indict, and the IRS criminal investigation should end.
  5. History. Smart prosecutors know they should only go after Al Capones and their wannabes for prosecution — people who commit fraud in other aspects of their life, hurting others — not people whose sole mistake in life was an IRS tax mistake. Add in the fact that the IRS' own data shows they put at least one innocent person under IRS criminal investigation every day, and they should be very careful before they ask any grand jury to indict. Remember to use your history in your favor.
  6. Finding the true criminal. If you know information about someone who has done something wrong, the prosecutor should take that into consideration before he considers any case against you.
  7. Sentencing. A case with limited risk of a prison sentence — because of a low tax loss in an IRS criminal investigation — is not worth the prosecutor’s time or expense. Show how the true tax loss number is far less than the IRS criminal investigation special agent thinks, and the prosecutor is supposed to decline asking the grand jury to indict you because the tax loss tables show a low tax loss should lead to probation anyway.

Remember information is power. Don’t let fear govern your decisions. Don’t be passive. Get the best defense and get it now, so that you can earn your freedom and protect your liberty now. An IRS criminal investigation doesn’t have to change your life in drastic ways — so don’t let it.