TAMPA — A federal appeals court on Friday affirmed actor Wesley Snipes' 2008 conviction and sentence for failing to file tax returns.
Snipes, who received a three-year prison sentence, has remained free on bail while his appeal was pending.
Assistant U.S. Attorney Robert O'Neill said the case will be sent to a district judge, who will give the actor a date on which he will have to surrender to federal authorities.
The defense "could try to bring something before the U.S. Supreme Court, but that won't be happening," O'Neill said, explaining that he doesn't think the case meets the criteria needed to reach the highest court.
Snipes' attorney, Daniel Meachum, reached Friday night, said it is premature to comment on Snipes' next move and plan of attack.
"Obviously we are extremely disappointed by the decision," he said. "We have not digested fully all of their opinion."
O'Neill led the prosecution team that accused the Blade and Major League star of conspiring with two men to defraud the IRS of about $11.4 million in refunds on taxes Snipes paid in 1996 and 1997. An indictment charged Snipes with failing to file tax returns from 1999 to 2004, while he earned nearly $38 million.
An Ocala jury found him guilty in 2008 of three misdemeanor counts of failure to file income taxes. The jury also acquitted him on three of the six misdemeanor failure-to-file charges and found him not guilty of two felony charges that included conspiracy and filing a false claim with the IRS.
On Friday, the U.S. Court of Appeals for the 11th Circuit rejected Snipes' claim that the only reasonable sentence for his crime was probation.
"The district court acted well within its considerable discretion in sentencing Snipes to thirty-six months in prison," judges wrote.
In his appeal, Snipes, who had the burden of proving his sentence was unreasonable, argued his punishment was too harsh. He said that the misdemeanor offense should not result in jail time for a first-time offender.
He also accused the lower court of not considering mitigating factors — that he is college educated, has a family and his charitable activities — at sentencing.
The court disagreed, saying the law allows for judges to use a graduated penalty structure by measuring a tax loss and pinning it to the offence level.
"If the defendant's crime were not 'serious' because the tax loss was minor and if his criminal history so warranted, the guidelines would advise a sentence of probation. In contrast, if the tax loss were high and thus more 'serious' and 'harmful to the treasury,' as it was in this case, the guidelines would advise a longer sentence," the judges wrote. "Snipes merely disputes Congress's and the Commission's assessment of major tax losses as serious. We are unpersuaded."
Snipes reportedly owes $2.7 million in back taxes. The government estimates his total debt could exceed $20 million.
Though O'Neill expects a surrender date to be issued, he said there could be a wrinkle in the case. One of the main witnesses against Snipes was recently accused in a Ponzi scheme, and the prosecutor expects defense attorneys to try to use that arrest to the actor's benefit.
"How much ammunition they can use that for, hard to tell at this stage," O'Neill said.