At a hearing on Friday, lawyers for New Orleans City Council President and candidate for Orleans Parish District Attorney Jason Williams and his law partner Nicole Burdett made the case in front of a federal judge that the pair were the subject of selective and vindictive prosecution in an ongoing tax fraud case.
Williams and Burdett were indicted in June on 11 felony counts of tax fraud for inflating business expenses and failing to report cash payments of over $10,000. According to prosecutors, they avoided paying nearly $200,000 in taxes between 2014 and 2018. They both pleaded not guilty in July.
But on Friday, their lawyers asked U.S. District Judge Martin Feldman to throw out those charges, or at the very least to grant an evidentiary hearing that would take place before the trial so they could question the special agents that investigated the case.
They argued that Williams was targeted due to his run for district attorney, which he announced in October of 2018, and that Burdett was collateral damage.
“The government began it’s criminal tax prosecution of Mr. Williams in 2018,” Williams’ lawyer Billy Gibbens told the judge. “Mr. Williams was a declared, progressive, candidate for district attorney, with a public platform of running against the established law enforcement. He’s a sitting city councilman, and of course, he is African-American.”
“The government cannot decide to prosecute someone for just these reasons,” Gibbens said. “But that’s exactly what they did.”
“He’s not law enforcement’s type of candidate,” Michael Magner, the attorney for Burdett told the judge. He cited the fact that Williams is a defense attorney, has worked with the innocence project, and been critical of the current DA Leon Cannizzaro’s use of fake subpoenas.
“All of this can go into your calculus of the government’s improper motive,” he told the judge.
Williams and Burdett say that the irregularities in their taxes are the fault of Henry Timothy, their tax preparer during the years in question. They say that Timothy misrepresented himself as a Certified Public Accountant, and made the determinations about which deductions to take. Prosecutors have argued that Burdett and Williams pressured Timothy to take those deductions.
Gibbens and Magner have argued that Timothy did the same thing for many of his clients, but the government chose not to bring criminal charges in those cases.
Magner also charged the prosecution with attempting to intimidate Burdett on Friday morning before the hearing by sending special agents to the house of her daughter, her daughter’s fiance, and her brother and sister in-law.
“This morning?” Judge Feldman asked. “What did they go for?”
“They were there to question them,” Magner said. “I believe they were there to intimidate them.” He called it “unconscionable.”
Later on in the hearing, Feldman told prosecutors that he was “immensely concerned with the conduct of the two agents.”
Kelly Uebinger, one of the prosecutors said that she couldn’t discuss it because it was related to another matter. But Magner, the attorney for Burdett, said that it was part of a separate criminal investigation into Burdett’s independent taxes — which prosecutors have mentioned in previous court filings.
Since the investigation into Williams taxes was first reported by the Times-Picayune/New Orleans Advocate, Williams has claimed it was an attack orchestrated by Cannizzaro and a political consultant, Billy Schulz. Cannizaro, for his part, has called Williams “delusional.”
According to prosecutors, the investigation into Williams stemmed from an investigation into Timothy’s taxes. A special agent, Lori Marable, sought to interview Williams in 2018 because he was a client of Timothy’s. But Williams failed to show up for that interview.
Following the missed appointment, IRS special agent Tim Moore became involved. In a filing, prosecutors wrote that it was “because Williams failed to meet with SA Marable and due to the fact that he was a public official, SA Marable’s supervisor requested that IRS Special Agent Tim Moore get involved.” But at the hearing on Wednesday, prosecutors for the government said that it was because Marable was moving offices that the case was handed over to Moore.
Moore apparently already knew of a separate ongoing FBI investigation into William, and began to look into his taxes. There he found the irregularities that eventually led to the indictment.
Prosecutors have said that their decision to bring charges were based on the fact that Williams had prior tax problems and that he had taken tax law classes in law school and advertises on his firm’s website that they specialize in tax evasion cases.
“Defendants have not been able to establish that any of the Timothy clients are similarly situated or as sophisticated,” they wrote.
They also note that the case was approved by the Department of Justice Tax Division.
During the hearing, the government tried to make the case that there wasn’t enough evidence to show that Williams and Burdett were being selectively or vindictively prosecuted.
At times, Judge Feldman seemed unconvinced.
“As you stated earlier, the government does have broad discretion in determining who we prosecute,” Uebinger told the judge. “That is a job for the executive branch.”
“Yeah,” he said. “But it’s not unfettered.”
Feldman said he didn’t believe he didn’t need any additional briefing from the lawyers, but that it could take a little while for him to make his ruling because “there is a lot to chew on in this case.”