This page provides a concise factual overview of the case involving Richard Brasser and the issues now raised for Congressional review.
The appeal in United States v. Brasser raises fundamental legal errors that go far beyond one case. These issues strike at due process, fair notice, and the integrity of the IRS Voluntary Disclosure Program. At least five major errors require reversal.
The district court allowed the jury to take the indictment into the jury room during deliberations. This was a serious error. An indictment is not evidence. It is an accusation drafted entirely by prosecutors. Allowing jurors to review it during deliberations improperly reinforces the government’s narrative and risks substituting allegations for proof. Federal appellate courts have repeatedly warned that indictments can prejudice juries when treated as evidentiary documents. Here, the risk was magnified because the jury acquitted Mr. Brasser of the most serious tax charges, demonstrating that jurors struggled to reconcile accusation with proof. Allowing the indictment into deliberations tipped the scales in violation of basic fairness.
The jury was instructed in a manner that directly conflicted with established IRS policy governing the Voluntary Disclosure Program. The IRS VDP explicitly allows companies in financial distress to continue operating, pay employees, and prioritize essential business expenses while working toward resolution of tax obligations. That flexibility is the cornerstone of the program and the reason taxpayers voluntarily come forward. Yet the jury was instructed that paying business expenses instead of payroll taxes could itself prove criminal intent. This instruction nullified the protections of the VDP and imposed a legal standard inconsistent with IRS policy and DOJ tax guidance. If allowed to stand, this ruling effectively destroys the VDP by turning compliance into evidence of guilt.
The jury instructions, taken as a whole, were internally inconsistent and misleading. Key concepts such as good faith, willfulness, and lawful reliance on professional advisors were improperly placed, misstated, or minimized. The instructions failed to clearly explain that a good faith belief, even if mistaken, negates criminal intent under Supreme Court precedent. This confusion mattered. The government’s theory depended on collapsing civil noncompliance into criminal conduct. Without clear guidance on intent, the jury was left to resolve a complex tax case using an oversimplified and legally incorrect framework.
After the verdict, the defense moved for a new trial under Rule 33 based on legal error and the weight of the evidence. The district court denied that motion despite substantial inconsistencies between the government’s theory and the trial record. The jury had already rejected the government’s claims of tax evasion and false returns, yet the remaining convictions rested on the same distorted narrative of intent. Appellate courts are clear that when a verdict rests on legally flawed instructions and unsupported inferences, a new trial is required. Denying that relief compounded the original errors.
Mr. Brasser was sentenced using a purported tax loss of approximately $666,000.That figure was inaccurate and unsupported by the evidence. It failed to account for payments made, penalties and interest already resolved, and the actual scope of personal liability under IRS rules. Inflating the loss amount materially increased the sentencing exposure and resulted in a punishment untethered from reality. Sentencing based on inaccurate facts violates due process and Supreme Court precedent. The appellate court must correct this error to prevent a manifest injustice.
If these errors are allowed to stand, every business owner who relies on IRS guidance, every taxpayer who enters a voluntary program, and every American who trusts the system to be fair is at risk.
This appeal is not about technicalities. It is about whether the government can: