Case 1:10-cr-00044-LO Document 13 Filed 06/04/10 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

UNITED STATES OF AMERICA )

)
v. ) CRIMINAL NO. 1:10cr44
)
ANDREW B. SILVA, )
)
Defendant. )

POSITION OF UNITED STATES WITH RESPECT TO

SENTENCING FACTORS AND 18 U.S.C. § 3553(a) FACTORS AND
MOTION FOR DOWNWARD DEPARTURE PURSUANT TO SECTION 5K1.1

In accordance with Section 6A1.2 of the Sentencing Guidelines and this Court's policy

regarding guideline sentencing, the government hereby represents that it has reviewed the

Probation Office's presentence report prepared in this matter and that it does not dispute any of

the factors or facts set out therein. In addition, however, the United States moves for a downward

departure pursuant to Section 5K1.1.

The Offense of Conviction

Andrew Silva is a medical doctor in Loudoun County. In 1997, Silva and his siblings

each were bequeathed by their mother an account at an international bank in Switzerland

containing approximately $250,000. Each year the accounts grew by a few thousand dollars in

interest. For the years 1997 through 2008, Silva failed to disclose the existence of the Swiss

account to his tax return preparer. As a result, the account was not declared on Schedule B of his

individual income tax returns Form 1040, no income earned on that account was included on his

individual income tax returns Form 1040, and no Foreign Bank Account Reports were filed with

the Department of the Treasury with respect to the Swiss account.

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In or about August 2009, Silva was informed that the international bank was closing his

undeclared Swiss account and that he had until the end of the year to travel to Switzerland to

withdraw all funds. In October 2009, the undeclared Swiss account was worth approximately

$268,000. In October 2009, Silva arranged to withdraw approximately $115,000 from his

account. He carried approximately $9,000 in U.S. currency from Switzerland to the United

States, and mailed $105,700 in U.S. currency in approximately 13 envelopes each containing

under $10,000 from Swiss Post offices to his residence in Sterling, Virginia. Each envelope

contained new, sequentially marked $100 bills taped inside a travel brochure.

In November 2009, Silva arranged to withdraw approximately $120,000 in U.S. currency

from his account. He carried approximately $9,000 in U.S. currency from Switzerland to the

United States, and mailed approximately $100,000 in U.S. currency in 12 envelopes from Swiss

Post offices to his residence in Sterling, Virginia. At the same time, he mailed an envelope

containing U.S. currency in an amount under $10,000 from a Swiss Post office to a residence in

Wisconsin.

Silva intended to include no more than $10,000 in cash in each package because he knew

that he was obligated to declare the importation into the country of more than $10,000 in cash

and he did not want any one package to include more than $10,000 in cash so that no

examination of any one package would reveal his failure to declare his importation of the entire

amounts that he mailed or carried from Switzerland to the United States.

Upon his return to Dulles International Airport on November 23, 2009, Silva was

questioned by a U.S. Customs Inspector. In response to questions from the Customs Inspector,

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Silva falsely denied that he had recently mailed any U.S. currency from Switzerland into the

United States.

Cooperation

Law enforcement agents executed a search warrant at Silva’s residence on December 10,

2009, and seized approximately $101,000 that Silva had withdrawn from his Swiss account and

either mailed or carried back from Switzerland. From the days immediately after the search was

executed, Silva repeatedly met with the investigators and provided a detailed account of his

involvement with the international bank in closing down his Swiss account in a manner that

would protect the international bank’s reputation for bank secrecy. Further, Silva consented to

the forfeiture of:

a. $8,700 in cash seized by Customs and Border Protection officials on or

about October 23, 2009, from a package mailed from Switzerland on or
about October 13, 2009, to the defendant’s residence in Sterling, Virginia;

b. $101,500 in cash seized by law enforcement officials from 12 packages

mailed from Switzerland on or about November 21, 2009, to the
defendant’s residence in Sterling, Virginia; and

c. $101,000 in cash mailed and carried from Switzerland to the defendant’s

residence in Sterling, Virginia, between on or about October 13, 2009 and
November 23, 2009, and seized by law enforcement officials from that
residence on or about December 10, 2009.

Silva provided valuable information regarding (1) undeclared Swiss bank accounts that he

and his siblings inherited; (2) the role a Swiss lawyer played in administering the accounts; (3)

the international bank’s decision to close the accounts; (4) refusals by the international bank and

the attorney to wire the money to the United States; (5) the international bank’s provision to

Silva of over $200,000 in cash; and (6) the Swiss lawyer’s assistance with sending the cash into

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the United States. Before receiving that information, the government had no information about

Silva’s foreign account or his involvement with the international bank, and likely could not

reasonably have obtained any of that information. Furthermore, Silva assisted the government in

obtaining evidence to corroborate his statements.

The cooperation provided by Silva has been instrumental in the government’s

investigation of the Swiss lawyer who administered the undeclared accounts. We expect that the

information provided by Silva or derived from that information, will lead to an indictment of the

Swiss lawyer. Silva’s cooperation has furthered the government’s efforts to investigate and

prosecute individuals and entities who engage in or facilitate tax evasion through illegal cross

border banking.

Before we made this motion for a downward departure for substantial assistance in the

investigation and prosecution of others, the Probation Office properly found the guideline range

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to be calculated at 6 - 12 months. In light of Silva’s substantial assistance, we request that the

Court depart downward to a range of 3 - 6 months.

Respectfully Submitted,

Neil H. MacBride
United States Attorney

Kevin Downing
Senior Litigation Counsel

John Sullivan
Trial Attorney

Mark F. Daly
Trial Attorney
United States Department of Justice,
Tax Division

By: /s/
Gordon D. Kromberg
Attorney for the United States
United States Attorney’s Office
Justin W. Williams U.S. Attorney’s Building
2100 Jamieson Avenue
Alexandria, Virginia 22314
Phone: 703.299.3721
Fax: 703.299.3981
Email: gordon.kromberg@usdoj.gov

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CERTIFICATE OF SERVICE

I certify that on June 4, 2010, I filed a true and correct copy of the foregoing Position of

the United States with Respect to Sentencing Factors and 18 U.S.C. § 3553(a) Factors and

Motion for Downward Departure Pursuant to Section 5K1.1 with the Clerk of Court using the

CM/ECF system, which will then send a notification of electronic filing to the following:

Matthew C. Hicks
Christopher S. Rizek
Caplin & Drysdale, Chartered
One Thomas Circle, N.W.
Washington, D.C. 20005

By: /s/
Gordon D. Kromberg
Attorney for the United States
United States Attorney’s Office
Justin W. Williams U.S. Attorney’s Building
2100 Jamieson Avenue
Alexandria, Virginia 22314
Phone: 703.299.3721
Fax: 703.299.3981
Email: gordon.kromberg@usdoj.gov