Monday, November 17, 2008

$200 Million Typo

Typos are always embarrassing, but how would you like to be responsible for a typo that, a court rules, fatally costs your client money? Not fun, particularly if the amount of money involved is $200 million. As you can see here, a U.S. government lawyer had this unhappy experience -- but was rescued at the last minute.

A certain Walter Anderson was convicted, by guilty plea, of income tax evasion. Apparently, Anderson used "a complex scheme involving several foreign corporations" to hide about $450 million in earnings over five years.

Now, let's just pause for one second here. If I earned $450 million over five years, I think I would be happy to pay the $200 million or so I would owe in taxes and live fabulously on the $250 million I'd have left. I don't think giving up the $200 million would bother me that much. But then, perhaps that's why I haven't earned $450 million. Maybe, to earn that much, you have to want every penny of it. Maybe I just don't have the right attitude.

Anyway, Anderson wanted that $200 million so much that he risked going to prison for it, which he is now doing -- for nine years (that's why I still think my attitude works better). But here's the funny part: the plea agreement provided that "the court may order restitution pursuant to 18 U.S.C. § 3572." The obvious purpose here was that the court sentencing Anderson to prison would also have power to order him to pony up the taxes he'd evaded. But there was one little problem: 18 U.S.C. § 3572 isn't the restitution statute. It's the fines statute. The restitution
statute is 18 U.S.C. § 3663.

Oh, that's just "a typo" and not "something that the court should be getting wrapped up about," said the U.S. attorney. Not so fast, said the district court. Under the applicable statute, the court only had power to order restitution "to the extent agreed to by the parties in a plea agreement," and the plea agreement only permitted restitution under a non-applicable statute, so there was no power to order restitution. Sorry, your typo cost the government $200 million.

Actually, the error was not really a "typo"--no one tried to type "3663" and accidentally hit the keys for "3572." It was more like a "wrongo" or even a "stupido"--someone deliberately put in the number of the wrong statute.

In any event, the court of appeals came to the rescue, ruling (correctly, I would say) that (1) the restitution statute requires authority for restitution in a plea agreement, but does not require citation to the restitution statute in the agreement, and (2) the other conduct of the parties made it very clear that they intended the plea agreement to provide restitution authority. So they allowed restitution.

So all's well that ends well, but how would you like to be the attorney who made what might have been a $200 million error?

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