United States v. H. Ty Warner

792 F.3d 847, 116 A.F.T.R.2d (RIA) 5175, 2015 U.S. App. LEXIS 11938, 2015 WL 4153651
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 10, 2015
Docket14-1330
StatusPublished
Cited by83 cases

This text of 792 F.3d 847 (United States v. H. Ty Warner) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. H. Ty Warner, 792 F.3d 847, 116 A.F.T.R.2d (RIA) 5175, 2015 U.S. App. LEXIS 11938, 2015 WL 4153651 (7th Cir. 2015).

Opinions

KANNE, Circuit Judge.

Defendant H. Ty Warner, the billionaire creator of Beanie Babies, evaded $5.6 million in U.S. taxes by hiding assets in a Swiss bank account. He pled guilty to one count of tax evasion, made full restitution, and paid a $53.6 million civil penalty. The Sentencing Guidelines provided a recommended 46- to 57-month term of imprisonment, but the district judge gave Warner a more lenient sentence: two years’ probation with community service, plus a $100,000 fíne and costs. The government claims his sentence is unreasonable because it does not include a term of incarceration.

In a typical case, we might agree. But this is not a typical case. The district judge found Warner’s record of charity and benevolence “overwhelming.” Indeed, the judge remarked that Warner’s conduct was unprecedented when viewed through the judge’s more-than-three decades on the bench. In the district court’s opinion, this and other mitigating factors — including the uncharacteristic nature of Warner’s crime, his attempt to disclose his account, his payment of a penalty ten times the size of the tax loss, and the government’s own request for a sentence well below the guidelines range — justified leniency. District courts enjoy broad discretion to fashion an appropriate, individualized sentence in light of the factors in 18 U.S.C. § 3553(a). The court here did not abuse its discretion. Rather, it fully explained and supported its decision and reached an outcome that is reasonable under the unique circumstances of this case. We therefore affirm Warner’s sentence.

I. Background

Warner was born in Chicago in 1944 and grew up in a troubled family. He attended a military high school in Wisconsin and spent a year at Kalamazoo College, but ultimately dropped out because he could no longer afford tuition. To make ends meet, he worked a series of odd jobs, including stints as a busboy, a bellman, and a door-to-door salesman. Eventually, he found his feet selling children’s plush toys for the Dakin Toy Company. Within a few years, he was Dakin’s top salesman.

In 1985, Warner formed his own plush toy company, Ty Inc., which he initially ran by himself out of his condominium. His big break came in the early 1990s with the introduction of a new toy to the market: the Beanie Baby. A huge success, the Beanie Baby propelled Ty Inc. into a mul-ti-billion-dollar company and made Warner rich. His net worth at the time of sentencing was roughly $1.7 billion.

A Warner’s Tax Evasion and Attempted Disclosure

In 1996, during the early period of Beanie Babies’ success, Warner traveled to Zurich, Switzerland, and opened an offshore bank account at UBS AG (“UBS”). The record does not disclose how much money Warner originally deposited or where the funds came from, but within several years the account contained $93 million. Consistent with their advice, Warner instructed his bankers not to send him any correspondence and to destroy all account documents after five years. He did [851]*851not report the account to the Internal Revenue Service (“IRS”).

Warner was not the only American taxpayer hiding assets at UBS. With the help of bankers in UBS’s cross-border division, many others opened offshore accounts to avoid U.S. taxes. One of the bankers involved in this fraudulent scheme was Hansreudi Schumacher, who serviced Warner’s account. After UBS entered into a Qualified Intermediary Agreement with the IRS in 2001 (which created certain tax reporting obligations), Schumacher left to join another Swiss bank.

Warner followed him. In late 2002, Warner traveled to Switzerland and, with Schumacher’s help, transferred his funds from UBS to Zuercher Kantonalbank (“ZKB”), a smaller Swiss bank without a significant U.S. presence. He placed the funds at ZKB in the name of a Liechtenstein shell entity, the “Molani Foundation.” And he instructed UBS “not to engage in any sort of communication with me re transfer,” but instead tó send all correspondence to Schumacher. At ZKB, Warner’s account grew to over $107 million.

Warner did not disclose his offshore account to the IRS. On the contrary, he reported on his annual tax returns that he had no foreign financial account. And he did not report or pay taxes on the interest income generated by his offshore assets, which amounted to over $24.4 million through 2007. As a result, the government lost $5,594,877 in tax revenue — the second-highest loss among the former UBS clients who have been prosecuted to date.

In 2008 the Department of Justice launched a program to aggressively combat offshore tax evasión.1 The program began with an investigation of UBS. In April the government indicted former UBS banker Bradley Birkenfeld. In February 2009 it filed a one-count information against UBS and quickly executed a deferred prosecution agreement, under which UBS admitted wrongdoing and agreed to hand over information on certain U.S. offshore clients. Several months later, the government brought charges against former UBS and Schumacher client Jeffrey Chernick. In August 2009 Schumacher himself was indicted.

At the same time, the government encouraged tax-evaders to come forward on their own by announcing an IRS offshore voluntary disclosure program in March 2009 (the “OVDP”). Under the program, taxpayers who voluntarily disclosed their offshore accounts could avoid criminal prosecution by paying back taxes, interest, and penalties, including 20% of the account’s peak value. On the other hand, those who continued to hide their assets would face heightened enforcement and severe penalties. Taxpayers had a six-month window — until September 28, 2009 (later extended) — to take advantage of the OVDP. Thousands of taxpayers were admitted into the program.2

Warner was aware of the government’s investigation of UBS, which was widely publicized, and of Schumacher’s indictment. Warner says that he regretted his decision to open the offshore account from the beginning but felt stuck; and that he never withdrew or otherwise used the funds in the account. In 2009 he contacted his lawyer to discuss his options, and his lawyer told him about the OVDP. On September 18, 2009 — just before the original [852]*852deadline — Warner applied to enter the program. Unbeknownst to him, however, he was already under investigation; the government had .obtained his account information in 2008 or 2009, possibly from UBS. The pending investigation made Warner ineligible for the OVDP, see IRM § 9.5.11.9(4)(a), (b) (Sept. 9, 2004), so the government rejected his application.

Two years later, in 2011, a grand jury subpoenaed Warner’s offshore banking records. He resisted the subpoena, but we ultimately required him to comply. In re Special Feb. 2011—1 Grand Jury Subpoena Dated Sept. 12, 2011, 691 F.3d 903, 909 (7th Cir.2012), cert. denied, — U.S. -, 133 S.Ct. 2338, 185 L.Ed.2d 1064 (2013).

B. Warner’s Information and Guilty Plea

In September 2013 the government filed a one-count information charging Warner with willful tax evasion in violation of 26 U.S.C. § 7201.

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Bluebook (online)
792 F.3d 847, 116 A.F.T.R.2d (RIA) 5175, 2015 U.S. App. LEXIS 11938, 2015 WL 4153651, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-h-ty-warner-ca7-2015.