Aiding and Assisting Sentence After Extradition from Germany (5/10/16)

I received an email press release dated May 9, 2016 from IRS CI with the following information about a tax sentencing:

A former Orange County resident was sentenced this morning by United States District Court Judge Percy Anderson to a term of imprisonment of one year and one day for providing false and incomplete information to his income tax return preparer. 

Donald M. Baxi, 69, a Canadian citizen formerly residing in Ladera Ranch, was further ordered by Judge Anderson to pay restitution of $56,319. 

Baxi pleaded guilty in March to one count of aiding and abetting in the preparation of a false income tax return.  According to the plea agreement filed in the case, Baxi was responsible for having the partnership income tax returns of Vintages Wine Bar, LLC (“VWB”), prepared and filed with the Internal Revenue Service.  For each of the years 2003, 2004, and 2005, Baxi deliberately provided false and incomplete information to his tax return preparer so that VWB’s interest income would not be reported to the IRS.  During these years however, VWB received interest income from two separate sources totaling $201,142.  This unreported interest income caused a tax loss to the government of $56,319. 

In November 2010, a federal grand jury indicted Baxi on six counts of aiding and assisting in the preparation of false income tax returns.  Upon learning of those charges, Baxi fled the United States. 

Five years after being indicted by a federal grand jury on tax charges, Baxi was arrested by German authorities and extradited back to the United States to face the charges contained in the indictment. 

Baxi was convicted of garden-variety aiding and assisting, Section 7206(2).  See the plea agreement here.  The interesting part is that the inference from the press release is that he chose to flee the country, thereby becoming a fugitive after being indicted. (The facts themselves may be a bit more nuanced as I discuss below.)  His absence from the U.S. led ultimately to his extradition from Germany.  The more surprising part is that, according to the pleadings submitted by the parties, the defendant's alleged flight from the U.S. to avoid trial seems not to have been that significant a factor, if a factor at all.  The U.S. original sentencing position pleading, here, had this cryptic statement in closing:

Finally, it appears to the government that defendant deliberately attempted to avoid arrest in this case, keeping himself out of the country and attempting to remove his name from the INTERPOL watch list. See facts proffered in Government's Request for Detention (Doc. 11). This conduct too supports a sentence of 15 months incarceration.

Fifteen months was a mid-range sentence, with the Guidelines range being 12 to 18 months.

The defendant's sentencing position paper, here, is quite masterful in arguing for the sentence of a year and a day.  Specifically, it presents the travails visited on the defendant while caught up on the German legal system in the extradition process.  Then it addresses his absence from the U.S. in a footnote on p. 6 as follows:

 n3 The government argues that Mr. Baxi attempted to avoid arrest in this case by keeping himself out of the country and attempted to remove his name from the INTERPOL watch list. (See Gov’t Position Paper at p. 4.) This claim is completely unsubstantiated by the email referenced by the government, in which Mr. Baxi simply requests that he be removed from the INTERPOL watch list so that he could “travel freely and accumulate enough funds to mitigate the problem,” namely, what he believed to be a civil, rather than a criminal matter. As the probation office correctly concluded, there is no evidence that Mr. Baxi left the United States after being charged with a criminal offense, therefore, his conduct does not rise to the level of obstruction of justice. (See PSR ¶ 26.)

The position paper worked and the Government in its reply, here, agreed to the sentence of a year and a day.   The Government did not insist on an obstruction of justice enhancement.

Articles on ICIJ's Panama Papers and Ramifications (5/9/16)

Introduction:  The following Wikipedia entries may offer updated information from time to time:

• Wikipedia entry on Panama Papers, here.
• Wikipedia list of people named in Panama Papers, here.

In addition, this searchable list from the Sunday Times might be worth consulting from time to time.  Josh Boswell, Tom Wills, Andrew Rininsland, Panama papers: the names: Search our database of 37,000 names linked to Mossack Fonseca companies in the tax haven of Panama (Sunday Times 4/10/16), here.  The linked page offers at the bottom a downloadable zip file with the data, here, which includes a csv file which is apparently 102.54 MB in size (presumably this could be imported into an MS Excel file, although I have not yet done that) and a "README.TXT" file to explain certain matters about the data.  Apparently this file lists the companies and directors, shareholders, and legal agents for the companies.

ICIJ's searchable database released 5/8/16, here.  The searchable database has this opening disclaimer:

There are legitimate uses for offshore companies and trusts. We do not intend to suggest or imply that any persons, companies or other entities included in the ICIJ Offshore Leaks Database have broken the law or otherwise acted improperly. Many people and entities have the same or similar names. We suggest you confirm the identities of any individuals or entities located in the database based on addresses or other identifiable information. If you find an error in the database please get in touch with us.

The page has links and allows users to download the database (or subsets of it in csv format) here.  I love databases but am not familiar with the database ICIJ uses:  Neo4j, here, a graph database engine that structures data in nodes (the icons you see in the visualization) and edges (the links between nodes).  I plan to try to dig into the database later, but will probably first poke around the cvs files (viewable in Excel) to see the scope of what is there.

ICIJ releases database revealing thousands of secret offshore companies (ICIJ 5/9/16), here.

The new data that ICIJ is now making public represents a fraction of the Panama Papers, a trove of more than 11.5 million leaked files from the Panama-based law firm Mossack Fonseca, one of the world’s top creators of hard-to-trace companies, trusts and foundations. 

ICIJ is not publishing the totality of the leak, and it is not disclosing raw documents or personal information en masse. The database contains a great deal of information about company owners, proxies and intermediaries in secrecy jurisdictions, but it doesn’t disclose bank accounts, email exchanges and financial transactions contained in the documents. 

* * * * 

The Panama Papers underscore the fundamental injustices and inequalities created by the offshore system, media commentators and political leaders say. 

“When taxes are evaded, when state assets are taken and put into these havens, all of these things can have a tremendous negative effect on our mission to end poverty and boost prosperity,” Jim Yong Kim, the president of the World Bank, said as he opened the spring meetings of the World Bank and IMF in Washington soon after ICIJ and more than 100 other news organizations began revealing the results of the media collaboration’s investigation. 

President Barack Obama, meanwhile, pointed out that the biggest problem was that many of the schemes revealed by the Panama Papers were legal. “It’s not that they’re breaking the laws, it’s that the laws are so poorly designed,” he said. 

* * * * 

Citing the Panama Papers, the US government also announced Thursday that it has sent legislation to Congress to create a centralized federal registry of the actual owners of any newly created company. The registry would help law enforcement authorities ferret out the real people behind anonymous companies used in money laundering and other wrongdoing. 

* * * * 

The searchable database that ICIJ publishes today allows users to explore the networks of companies and people that used – and sometimes abused – the secrecy of offshore locales with the help of Mossack Fonseca and other intermediaries. The leaked data covers nearly 40 years, from 1977 through the end of 2015. 

The data, which includes postal addresses, displays links to more than 200 countries and territories, from China to Chile. Users can filter the information by country and by offshore jurisdiction. They can also explore the role of banks, law firms and other gatekeepers of the financial system in facilitating the creation of offshore companies for high net worth individuals. For the first time, they can see details about shadowy Panamanian private foundations, including when available information about who controls them. 

While the interactive application opens up a world that has never been shown in this much detail, not every owner of a company that appears in the Panama Papers shows up in the public database. This is because ownership information is often buried in emails, power-of-attorney letters and internal notes of Mossack Fonseca employees and cannot easily be extracted in a systematic manner. In addition, Mossack Fonseca often failed to collect the necessary information about the ultimate owners of companies, relying instead on banks and other intermediaries to keep track of that essential data. 

Still, it is expected that Panama Papers revelations will continue to surface as regulators and ordinary citizens from around the globe probe the newly available data and find new connections that may have escaped reporters. Concerned citizens are encouraged to share tips with ICIJ and the Panama Papers journalists who continue to investigate the documents. The full dataset is also available for download. 

“Transparency is not going to move backward,” Kim said in his World Bank spring meetings remarks, warning that those trying to avoid taxes or steal money from public treasuries should be “very careful” because they will eventually be tracked down. “The world is only going to become more and more transparent as we move forward.”

ICIJ's Offshore Leaks database. 

In all, the interactive application reveals more than 360,000 names of people and companies behind secret offshore structures. As the data are from leaked sources and not a standardized registry, there may be some duplication of names.

Finally, I offer this comment from a reader regarding the US announcements last week:

The US is going for a jugular target by attacking money laundering.   Watch for this news to roil the NY/London/LA/Miami high end real estate trades (plus: art, boats, jewelry, luxury items).   Mr. Obama's intended executive actions on forcing disclosure of the beneficial owners of shell companies may signal an attack aimed at one high profile vector, i.e., the use of tax evasion proceeds to buy expensive assets and launder big $$$$$$, in and via the United States.  High end retail, hotels, restaurants and various vanity projects will also feel the "blow", not to mention a whole range of facilitators and advisors aka aiders and abetters, wherever situated.  

Selected Items from ABA Tax Section Civil and Criminal Penalties Session (5/9/16; 5/10/16)

On 5/10/16, I added item 7 regarding whether, in Streamlined, the IRS might require adjustments for earlier years where the statute of limitations might otherwise be open.

I attended the ABA Tax Section May Meeting this past week.  My favorite session at these meetings is the Civil and Criminal Tax Penalties Meeting on Saturday.  I cover here the highlights from my perspective, but do not cover those items that I have previously covered in earlier blog entries:

1. Panama Papers.  Not much new was provided regarding the Panama Papers Disclosures.  See my  posting from last Friday, Articles on ICIJ's Panama Papers and Ramifications (Federal Tax Crimes Blog 5/6/16), here.  I expect to offer soon more on the President's and related initiatives announced.

2. Luis v. United States, No. 14-419, 578 U.S. ____, 130 S. Ct. 1083, 2016 U.S. LEXIS 2272 (March 30, 2016), here.  The Supreme Court held that untainted assets -- assets not obtained from the alleged illegal conduct -- could not be forfeited or restrained in violation of the owner's Sixth Amendment  right to retain counsel.  Prior cases permitted forfeiture or restraint of tainted funds.  See Kaley v. United States, 571 U.S. ___, 134 S. Ct. 1090 (2014), Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, (1989), and United States v. Monsanto, 491 U.S. 600, (1989).  The Government wanted to preserve the untainted funds for payment of restitution and penalties.  The Court adopted a balancing of interest approach rather than a clear rule.

3. Anecdotal evidence indicates that the IRS may be focusing on attorney Form 8300 compliance.  Form 8300 if a joint IRS and FinCEN form to report cash payments over $10,000 received in a trade or business.  Exams are focusing on aggregation issues, correct and timely filing of Form 8300, and timely notice to the payor of the currency.

4. The key recent inclusion in the Domestic Voluntary Disclosure Program is the requirement for preclearance, a procedure clearly inspired by preclearance in OVDP.  If the preclearance clears (meaning the IRS has no disqualifying indication), the IRS sends for completion a 10 question "intake" letter.  Rather than focusing on others involved as the OVDP intake letter does, the Domestic Voluntary Disclosures intake letter focuses on the actions of the taxpayer.  Assuming the intake responses clear, the taxpayer will be directed to send amended or delinquent returns to an IRS office in Massachusetts.  It is reported that the IRS has been reasonable in the number of years of amended or delinquent returns required.  It is not clear where "quiet disclosures" fit in the new scheme, but presumably the formal program with preclearance and intake letters would be appropriate only for the "nonwillful." (JAT conclusion)  I will try to do a blog entry on the state of domestic voluntary disclosures this week.

5. There was discussion of potential criminal prosecution of false Streamlined Certification.  It was generally agreed that a streamlined certification (Foreign or Domestic) which has a robust narrative of the material good and bad facts should not generate a criminal action for false certification even if the IRS disagrees with the taxpayer's conclusion that those facts support nonwillfulness.  Where, however, the taxpayer fails to properly and fairly disclose the material facts-- good and bad -- the taxpayer may be at risk of prosecution.  I suppose the one caveat would be where the facts fully and fairly disclosed do not in any reasonable way support nonwillfulness, there might be prosecution or some other untoward response.

6. With regard to Streamlined Voluntary Disclosures, there was some noise that the IRS will be deploying incoming information from other sources to ensure that the Streamlined Voluntary Disclosures are complete.  If the amended returns and FBARs submitted in the Streamlined Voluntary Disclosure process are not reasonably complete, the taxpayer will be at considerable risk to explain why.

7. One key discussion at the meeting involved whether the Streamlined Program which requires three years of amended returns (and in the case of SFOP, delinquent returns) and 6 years of FBARs effectively closes out exposure for earlier years.  Years other than the latest three years for which amended returns are required could be open for a couple of reasons.  Since the predicate for Streamlined qualification is that the taxpayer acted nonwillfully (same as civil fraud), I assume that the earlier years are not open under the fraud exception that keeps the statute open forever.  So, absent fraud, why would earlier years be open, keeping in mind that the general statute is three years and the taxpayer is delivering 3 years of amended or delinquent returns?  First, all years in which the taxpayer failed to file a return could be open.  For example, if the taxpayer moved overseas 10 years ago for legitimate reasons but failed to file returns after the move, all of those years would otherwise be open.  Second, for those taxpayers filing returns (and assuming no fraud), the statute could be open for 6 years rather than the normal three years for two years -- a 25% income omission or a $5,000+ income omission for Form 8938 assets.  So, the question was whether, as to any year before the covered three years in the Streamlined program that might otherwise be open, is there any assurance that the IRS will not require adjustments for those years?  The Streamlined programs textually offer no such assurance, but most practitioners have assumed that, given its design and the way voluntary disclosure programs have worked in the past, earlier years would not be subject to adjustment.  John McDougal, an IRS attorney who has been a major player in the IRS's offshore initiatives since the inception, said that, while he could only speak for himself and not the IRS (the standard disclaimer), he thinks there is practical assurance because that is the design of the program and seems to be implicit.  He said that, should the IRS choose to go after earlier years, that action would impede the effectiveness of the program that encourages people to get back into the system to the extent they have not in the past.  Fewer people would join the program, and the IRS will have shot itself in the foot.  While Mr. McDougal is a lone voice not speaking for the IRS, he is an authoritative voice whose comments need to be considered by taxpayers and practitioners.

Articles on ICIJ's Panama Papers and Ramifications (5/6/16)

Introduction:  The following Wikipedia entries may offer updated information from time to time:

• Wikipedia entry on Panama Papers, here.
• Wikipedia list of people named in Panama Papers, here.

In addition, this searchable list from the Sunday Times might be worth consulting from time to time.  Josh Boswell, Tom Wills, Andrew Rininsland, Panama papers: the names: Search our database of 37,000 names linked to Mossack Fonseca companies in the tax haven of Panama (Sunday Times 4/10/16), here.  The linked page offers at the bottom a downloadable zip file with the data, here, which includes a csv file which is apparently 102.54 MB in size (presumably this could be imported into an MS Excel file, although I have not yet done that) and a "README.TXT" file to explain certain matters about the data.  Apparently this file lists the companies and directors, shareholders, and legal agents for the companies.

Scott Shane and Eric Lipton, Panama Papers Source Offers to Aid Inquiries if Exempt From Punishment (New York Times 5/6/16), here.

The anonymous source behind the huge leak of documents known as the Panama Papers has offered to aid law enforcement officials in prosecutions related to offshore money laundering and tax evasion, but only if assured of protection from punishment.
“Legitimate whistle-blowers who expose unquestionable wrongdoing, whether insiders or outsiders, deserve immunity from government retribution,” the source, who has still not revealed a name or nationality, said in a statement issued Thursday night. 

The documents, which list the true owners of thousands of companies created to hide the people behind them, expose the holdings of current and former world leaders and other prominent figures. The source, who uses the pseudonym John Doe but whose gender is not known, said that the papers could spur thousands of prosecutions, “if only law enforcement could access and evaluate the actual documents.” 

John Doe noted that journalists who have viewed the papers have said they will not turn over the full archive of 11.5 million documents. “I, however, would be willing to cooperate with law enforcement to the extent that I am able,” the source wrote.
The statement, which was issued Thursday night under the condition that it not be reported until Friday morning, gave some hints about John Doe’s political views and concerns. They include income inequality, the American campaign finance system and the “revolving door” of United States officials who take jobs at banks or other companies they once regulated.

Tonya Somander, President Obama's Efforts on Financial Transparency and Anti-Corruption: What You Need to Know (White House Blog 5/6/16), here

What do today’s actions do to help address this kind of financial abuse?  

Today, the Treasury Department took several steps to increase transparency and disclosure requirements. 

First, the Treasury Department finalized its “customer due diligence” rule, which requires financial institutions – such as banks , mutual funds, and other financial institutions – to find out and verify who actually owns and profits from the companies that make use of their services, i.e, the “beneficial owner.” Under this rule, if an entity (like a shell company) opens an account at a financial institution, that institution will be required to identify and verify the real people actually behind that entity. And law enforcement can then seek out that information from those institutions. 

By requiring disclosure of beneficial ownership information, we will increase financial transparency and give financial institutions and law enforcement the ability to identify the assets and accounts of criminals and national security threats. 

Now, while the beneficial owners of shell companies often exploit weak rules in offshore tax havens, gaps also exist in U.S. tax rules that foreigners can currently exploit to set up and hide their assets or financial activity in an anonymous shell company in the United States.

So the second step Treasury took today is to propose a rule that would plug this gap by requiring certain foreign-owned companies to obtain a tax identification number from the IRS, thereby requiring these entities to report ownership and transaction information to the IRS. 

Taken together, these steps go a long way in helping to combat money laundering and tax evasion, but additional tools are needed to promote transparency and strengthen law enforcement. And only Congress can help on that front.  

What role does Congress have to play to combat illegal financial activity?  

The truth is that bad actors will continue to seek new ways to exploit the financial system for illicit purposes – be it financing terrorism, laundering proceeds from illegal activity such as corruption, evading international sanctions, or evading taxes – and the Administration cannot address these actions through executive steps alone.  

That is why President Obama is calling on Congress to take four critical actions to strengthen what the U.S. can do:  

1. Pass legislation to require “beneficial ownership” transparency: On behalf of the Administration, the U.S. Department of the Treasury is sending a new legislative proposal to Congress that would require all companies formed in the U.S. report information about their beneficial owners to the Department of the Treasury. That step would make information about beneficial owners readily available to law enforcement. 

2. Pass legislation to give law enforcement better anti-corruption tools: We are also seeking legislation to advance our ability to fight corruption both here in the United States and abroad. The new legislative proposals would enhance the ability of our law enforcement officials to obtain information from domestic and foreign banks so they can investigate and prosecute money laundering. This will also allow the Justice Department to prosecute money laundering linked to a broader set of crimes, including ones that involve corrupt public officials. 

3. Approve eight tax treaties:  Eight tax treaties have been awaiting Senate approval for several years. Without those treaties, U.S. officials don’t have a complete set of tools to fully investigate and crack down on tax evasion by Americans with offshore accounts, including secret Swiss bank accounts. 

4. Strengthen existing law to improve reciprocal transparency: In 2010, President Obama signed legislation that established the global standard for financial reporting by requiring foreign financial institutions to automatically report to the IRS information about financial accounts held by U.S. persons. But right now, the U.S. doesn’t provide the same information to its partners under this law that they provide to the United States. Congress can strengthen this law by requiring U.S. financial institutions to provide that information to our partners.  

Video from Offshore Alert Conference 2016 (5/4/16)

Video on Panama Papers from the Offshore Alert Conference at the Ritz-Carlton, South Beach, 2016.  The video is here.  The conference details are here.  The speakers are here.

I have not had time to review the video, but I am told that the video includes a statement by ICIJ Director (Gerard Ryle) that there are a lot of US names yet to be revealed, including many non-US citizens residing in the USA (and using non-US passports to set up their offshore vehicles and accounts via Mossack Fonseca).

The speakers in the video are:

• GERARD RYLE, Director, International Consortium of Investigative Journalists (Washington, D.C.)
• ARTHUR VANDESANDE, Founder, Concorde Associates & Retired Senior Special Agent, IRS Criminal Investigation, Offshore Coordinator (Miami).

DC Circuit Opinion Limiting District Court Oversight of Deferred Prosecution Agreements (5/2/16)

The Government has used deferred prosecution agreements (DPAs) in tax cases (e.g. the UBS DPA in 2009 and the DPAs offered in the DOJ Tax Swiss Bank initiative).  For the UBS Deferred Prosecution Agreement and other DOJ Preferred Prosecution Agreements see Brandon Garrett's excellent compilation on his UVA Law Website here; and for the DOJ Tax Swiss Bank Initiative which offered nonprosecution agreements but reserved the right to required a DPA in a particularly egregious case (see Program for Non-Prosecution Agreements or Non-Target Letters for Swiss Banks, par. II.K. (apparently, as yet DOJ Tax does not seem to have exercised that discretion, see here.))

Readers interested in DPAs likely will want to read the opinion in United States v. Fokker, ___ F.3d ___, 2016 U.S. App. LEXIS 6176 (DC Cir. 2016), here.  Bottom line, the decision gives wide deference to prosecutiorial discretion in charging decisions and limits the district court's discretionary oversight in accepting DPAs.  The opinion is notable for its content, but also notable because it is written by Judge Srinivasan, Wikipedia here, who was recently on the short list for appointment to the Supreme Court and who, likely, will be on the short list for the next President, to use President Obama's phrase, "whoever she is."  I focus in this blog only on the content of the opinion limiting the district court's discretion.

Although I strongly encourage federal tax crimes and white collar crimes enthusiasts to read and study the opinion, I offer here the opening of the opinion to introduce the summary background and holding in the opinion:

The Constitution allocates primacy in criminal charging decisions to the Executive Branch. The Executive’s charging authority embraces decisions about whether to initiate charges, whom to prosecute, which charges to bring, and whether to dismiss charges once brought. It has long been settled that the Judiciary generally lacks authority to second-guess those Executive determinations, much less to impose its own charging preferences. The courts instead take the prosecution’s charging decisions largely as a given, and assume a more active role in administering adjudication of a defendant’s guilt and determining the appropriate sentence.  

In certain situations, rather than choose between the opposing poles of pursuing a criminal conviction or forgoing any criminal charges altogether, the Executive may conclude that the public interest warrants the intermediate option of a deferred prosecution agreement (DPA). Under a DPA, the government formally initiates prosecution but agrees to dismiss all charges if the defendant abides by negotiated conditions over a prescribed period of time. Adherence to the conditions enables the defendant to demonstrate compliance with the law. If the defendant fails to satisfy the conditions, the government can then pursue the charges based on facts admitted in the agreement. 

This case arises from the interplay between the operation of a DPA and the running of time limitations under the Speedy Trial Act. Because a DPA involves the formal initiation of criminal charges, the agreement triggers the Speedy Trial Act’s time limits for the commencement of a criminal trial. In order to enable the government to assess the defendant’s satisfaction of the DPA’s conditions over the time period of the agreement—with an eye towards potential dismissal of the charges—the Speedy Trial Act specifically allows for a court to suspend the running of the time within which to commence a trial for any period during which the government defers prosecution under a DPA.  

In this case, appellant Fokker Services voluntarily disclosed its potential violation of federal sanctions and export control laws. After extensive negotiations, the company and the government entered into an 18-month DPA, during which Fokker would continue cooperation with federal authorities and implementation of a substantial compliance program. In accordance with the DPA, the government filed criminal charges against the company, together with a joint motion to suspend the running of time under the Speedy Trial Act pending assessment of the company’s adherence to the agreement’s conditions. The district court denied the motion because, in the court’s view, the prosecution had been too lenient in agreeing to, and structuring, the DPA. Among other objections, the court disagreed with prosecutors’ decision to forgo bringing any criminal charges against
individual company officers. 

We vacate the district court’s denial of the joint motion to exclude time under the Speedy Trial Act. We hold that the Act confers no authority in a court to withhold exclusion of time pursuant to a DPA based on concerns that the government should bring different charges or should charge different defendants. Congress, in providing for courts to approve the exclusion of time pursuant to a DPA, acted against the backdrop of long-settled understandings about the independence of the Executive with regard to charging decisions. Nothing in the statute’s terms or structure suggests any intention to subvert those constitutionally rooted principles so as to enable the Judiciary to second-guess the Executive’s exercise of discretion over the initiation and dismissal of criminal charges. 

In vacating the district court order, we have no occasion to disagree (or agree) with that court’s concerns about the government’s charging decisions in this case. Rather, the fundamental point is that those determinations are for the Executive—not the courts—to make. We therefore grant the government’s petition for a writ of mandamus and remand for further proceedings consistent with this opinion.

JAT comment: Even if the courts had authority to review the merits of deferred prosecution agreements (they apparently do not based on Fokker), the Government can achieve basically the same "benefits" from nonprosecution agreements (NPAs) that are not reviewed by the district court at all.  NPAs can toll the criminal statute of limitations by agreement and permit subsequent prosecution if the target does not meet the terms of the agreement.  Further, NPAs can be publicized.  Readers will recall that the DOJ Tax Swiss Bank program beat the publicity drums loudly for NPAs.  The Court addressed the differences between DPAs and NPAs as follows:

DPAs, along with their out-of-court analogues, non-prosecution agreements (NPAs), afford a middle-ground option to the prosecution when, for example, it believes that a criminal conviction may be difficult to obtain or may result in unwanted collateral consequences for a defendant or third parties, but also believes that the defendant should not evade accountability altogether. Both DPAs and NPAs generally include an admitted statement of facts, require adherence to “conditions designed . . . to promote compliance with applicable law and to prevent recidivism,”  and remain in effect for a period of one to three years. U.S. Attorney’s Manual § 9-28.1000 (2015). During that period, if the defendant fails to abide by the terms of the agreement, the government can prosecute based on the admitted facts. While prosecutors at one time seldom relied on NPAs and DPAs, their use has grown significantly in recent years.  

DPAs differ from NPAs primarily with regard to the filing of criminal charges. With an NPA, “formal charges are not filed and the agreement is maintained by the parties rather than being filed with a court.” Craig S. Morford, Selection and Use of Monitors in Deferred Prosecution Agreements and Non-Prosecution Agreements with Corporations, at 1 n.2 (Mar. 7, 2008). A DPA, by contrast, “is typically predicated upon the filing of a formal charging document by the government.” Id. 

The United States Attorney Manual provision cited above is here.  (Actually, the quote from the USAM is in 9-28.1100 - Collateral Consequences (discussing alternatives to prosecution; see also 9-28.200 - General Considerations of Corporate Liability.)  USAM 9-28.1100 also provides:\

Under appropriate circumstances, a deferred prosecution or non-prosecution agreement can help restore the integrity of a company's operations and preserve the financial viability of a corporation that has engaged in criminal conduct, while preserving the government's ability to prosecute a recalcitrant corporation that materially breaches the agreement. 

I also recommend to readers the following thoughtful and brief concern about DPAs.  Brandon L. Garrett and Alan B. Morrison, Deferred Prosecutions Need Judicial Oversight (National Law Journal 5/2/16), here.  The authors argue for more judicial oversight of DPAs.  I offer no position on that issue.

By the way, for DOJ Tax enthusiasts, the district court in the case was Judge Richard Leon, see here, who is a Senior Trial Attorney in the Criminal Section of the Tax Division,

Articles on ICIJ's Panama Papers and Ramifications (5/1/16)

Introduction:  The following Wikipedia entries may offer updated information from time to time:

• Wikipedia entry on Panama Papers, here.
• Wikipedia list of people named in Panama Papers, here.

In addition, this searchable list from the Sunday Times might be worth consulting from time to time.  Josh Boswell, Tom Wills, Andrew Rininsland, Panama papers: the names: Search our database of 37,000 names linked to Mossack Fonseca companies in the tax haven of Panama (Sunday Times 4/10/16), here.  The linked page offers at the bottom a downloadable zip file with the data, here, which includes a csv file which is apparently 102.54 MB in size (presumably this could be imported into an MS Excel file, although I have not yet done that) and a "README.TXT" file to explain certain matters about the data.  Apparently this file lists the companies and directors, shareholders, and legal agents for the companies.

Frederik Obermaier, Bastian Obermayer, Vanessa Wormer and Wolfgang Jaschensky, About the Panama Papers (Süddeutsche Zeitung), here.  A great report (with links) from the newspaper and reporters that originally obtained the data.

Coming Soon: ICIJ to Release Panama Papers Offshore Companies Data (ICIJ 4/26/16), here.

The International Consortium of Investigative Journalists will release on May 9 a searchable database with information on more than 200,000 offshore entities that are part of the Panama Papers investigation. 

The database will likely be the largest ever release of secret offshore companies and the people behind them. 

* * * * 

While the database opens up a world that has never been revealed on such a massive scale, the application will not be a “data dump” of the original documents – it will be a careful release of basic corporate information . 

ICIJ won’t release personal data en masse; the database will not include records of bank accounts and financial transactions, emails and other correspondence, passports and telephone numbers. The selected and limited information is being published in the public interest. 

Meanwhile ICIJ, the German newspaper Süddeutsche Zeitung which received the leak, and other global media partners, including several new outlets in countries where ICIJ has not been able to report, will continue to investigate and publish stories in the weeks and months to come.

Meta S. Brown, Why Panama Papers Journalists Use Graph Databases (Forbes 4/30/16), here.

All large organizations, and a whole lot of small ones, use databases. These tools keep names, dates, numbers and other tidbits of information neatly in order, organized into tables by common structure and function, each one laid out in columns and rows that define a single proper place for every little fact. 

These same organizations also possess a lot of complex data, such as contracts, email, photographs and many other forms of information that just can’t be neatly organized into uniform columns and rows. Since this stuff is hard to organize, it often remains unorganized, making it hard to find information when it’s needed. 

When investigative journalists set out to understand the implications of the Panama Papers, an enormous set of documents leaked from the Panama-based law firm Mossack Fonseca, organization was a primary issue. The leak presented them with a wealth of information, millions of documents, but no guide to structure. Organizing the information, making it searchable, identifying connections among the documents and the people, companies and other facts within them was all up to the journalists. 

The International Consortium of Investigative Journalists (ICIJ), a network of journalists from more than 65 countries, foresaw this situation. In anticipation of massive technology-enabled information leaks, ICIJ prepared by developing expertise and resources for data journalism on a grand scale. No one news organization has the resources to fully investigate such a large information leak, but ICIJ can provide technical assistance and coordinate fact-finding by journalists around the world.
Mar Cabra, head of ICIJ’s Data and Research Unit, understands the limitations of the databases used in most business applications, which are known as “relational databases.” They’re not designed for management of lengthy documents, or for the labyrinthine relationships that connect them. For this data journalism effort, she chose another type of database, one that was designed as a natural match for the sort of complex data in the Panama Papers, and well-suited to facilitating journalists’ research. This type of database is called a “graph database,” and it is much like a gigantic diagram of documents and relationships among them. 

Graph databases are a good match for applications that call for finding related documents quickly, especially when you need only a few documents at a time, and don’t need to use exact calculation methods like classical statistics. The Panama Papers application, facilitating painstaking journalistic research, meets those criteria. So would a dating application, which calls for quickly presenting an individual with several potential matches. Serving product recommendations for online retail is also a good match for a graph database.

JAT Note: I think the author is right that relational databases are not good for lengthy documents -- except when they are.  I have worked with very large databases that could handle full text searches as well as having fields as in traditional less complex databases.  For all databases, a user must understand what they do, their strengths and limitations and then manipulate the data with those in mind.  I started building databases for my practice and other purposes in the 1990s.  I started with DBase III and then moved to Microsoft Access where I built an office practice database and a litigation database.  Then for larger databases (principally litigation), I went to third party providers starting first with Concordance around 2005.  All databases more or less have the same techniques but implement them in different ways in terms of user-friendliness and such.  But, databases make the world hum, sort of.