Teacher Certificate Revocation Based on Fraud in Defraud Conspiracy; Wrong (7/29/21)

There are collateral consequences to being convicted of a tax crime (as well as other crimes).  Some of the collateral consequences for tax crimes are covered in Michael Saltzman and Leslie Book, IRS Practice and Procedure (Thomsen Reuters 2015), ¶ 12.06 Collateral Consequences.  (Note, I am the principal author  of Chapter 12, titled Criminal Penalties and the Investigation Function.)  Some of those are civil consequences.

In Certificate Revocation · “Crime of Moral Turpitude” · 18 U.S.C. §371 (Pennsylvania Law Weekly 7/20/21), the former teacher had his teaching certificate revoked after pleading guilty to a tax defraud conspiracy in 18 USC 371.  I don’t have a link to the article, but a Google search indicates that it is behind the Law.com paywall here.

The question addressed was whether the defraud conspiracy was a crime of moral turpitude.  The article says: “it was clear that conspiracy to defraud the United States was a crime of which fraud was an element.” 

As I have noted many times, the defraud conspiracy (commonly called a Klein conspiracy in a tax context) does not require fraud in its traditional meaning; thus, fraud (in its traditional meaning) is not an element of the crime.  Conduct falling far short of fraud is within the scope of the word defraud for the defraud conspiracy.  See  John A. Townsend, Tax Obstruction Crimes: Is Making the IRS’s Job Harder Enough, 9 Hous. Bus. & Tax. L.J. 255, 330 ff. (2009), SSRN here.  It is true that at least deceit not involving fraud is required for conviction, but the point is that it is wrong to assume that because defraud is an element, fraud is an element.  It is not.

Accordingly, from the article, and without more, it would appear that the revocation was improper if it was based on a conclusion that the element of the crime was fraud in its traditional sense.  Of course, the Commission had the indictment in which, as usual, the prosecutors probably fluffed to manner and means to include some tax loss, so the intent to cause the tax loss would be fraud.  But, if that were the case, the offense was an offense conspiracy rather than a defraud conspiracy.  And, since this was a tax crime, the Government rarely charges without a tax loss — which is the tax the defendant intended to evade so that there is a tax loss for sentencing.  Still, my understanding is that this type of consequence should be based on the elements of the crime.  A tax loss is not an element of the defraud conspiracy crime.  Hence, fraud is not an element of the defraud conspiracy.

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