A federal appellate court has vacated the $892,402 restitution order for St. Croix radio station owner Jonathan Cohen, and said that former Gov. Kenneth Mapp’s pardon of Cohen’s criminal conviction for tax evasion was absolute.
But the judges said the V.I. government can still pursue civil remedies against Cohen to force him to pay his back taxes, according to an opinion filed Wednesday in the 3rd U.S. Circuit Court of Appeals.
V.I. Attorney General Denise George did not respond to an inquiry from the Daily News about whether she intends to pursue a civil claim against Cohen.
Between 2002 and 2013, Cohen “evaded Virgin Islands tax obligations for himself and three corporations that he owned,” according to the 3rd Circuit opinion.
The V.I. government charged Cohen with 21 counts of various tax crimes in 2014, including failure to file a tax return and pay income tax, and willful failure to pay gross-receipt taxes for his three corporations.
Cohen signed a plea deal in 2015, which he admitted to two counts, and agreed to pay $892,402 in restitution and serve five years of probation. At sentencing, the court also imposed $10,000 in fines. After Cohen paid $80,000, the District Court amended the restitution order in 2017 for Cohen to pay $6,000 monthly installments and three lump-sum payments by September 2020.
On Dec. 22, 2018, Mapp pardoned Cohen, who filed a motion to vacate his sentence and stay transfer of his restitution payments from the court registry to the government.
When the District Court denied those motions, Cohen appealed to the 3rd Circuit, which reviewed the lower court’s ruling.
During oral arguments held in May, Cohen’s attorney, Yohana Manning, said that while the government could still pursue civil remedies to recoup the unpaid taxes, Mapp’s pardon meant that Cohen’s criminal conviction and all related punishments were erased — including the restitution order.
In Wednesday’s opinion two judges — Julio Fuentes and Peter Phipps — agreed with Manning, and ruled that the lower court erred when denying Cohen’s motion to vacation his sentence.
The Revised Organic Act gives the Virgin Islands Governor the power to pardon, which “closely resembles the presidential pardon power,” according to the opinion. “Even at its zenith, however, the pardon does not extinguish civil liabilities associated with the underlying criminal offense.”
While the government could still file a civil claim, “Cohen received a general pardon, free from any limitations or conditions,” the judges wrote. “Consequently, Cohen is no longer bound by his criminal conviction — including the court-ordered restitution schedule.”
The judges noted that “because the pardon was unconditional, any restitution payments previously deposited in the Court’s registry that have not been distributed to the Government of the Virgin Islands must be returned to Cohen.”
One of the 3rd Circuit judges, Joseph Greenaway Jr., dissented from the majority opinion.
“Because payment of back taxes is not a ‘punishment’ necessarily discharged by a pardon, I see no basis for extending the gubernatorial pardon to extinguish Cohen’s obligation to pay restitution,” Greenaway wrote.
But the majority found that Cohen’s failure to pay restitution would trigger revocation of his probation, “and potentially a prison sentence,” according to the opinion. “By carrying the possibility of incarceration as a consequence for non-compliance, the restitution order most certainly constitutes part of Cohen’s punishment.”
Still, the judges found that “while the Governor’s pardon extinguishes Cohen’s criminal penalty, it does not absolve him of civil tax liability for the years in which he did not pay taxes. Thus, nothing about the pardon prevents the Government of the Virgin Islands from pursuing civil remedies to collect outstanding taxes from Cohen — which do not appear to be precluded by the statute of limitations.”