Amicus Curiae Brief — Marinello v. United States, 138 S. Ct. 52 (2017) (No. 16-1144)

FILED |

SEP -8 2017

F OF 7 LEHA

No. 16-1144

IN THE

Supreme Court of the United States

CARLO J. MARINELLO, II,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the United States Court of

Appeals for the Second Circuit

BRIEF OF

AMERICAN COLLEGE OF TAX COUNSEL

AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

ARMANDO GOMEZ JENNY L. JOHNSON

DAVID W. FOSTER Counsel of Record

SKADDEN, ARPS, SLATE, GUINEVERE M. MOORE

MEAGHER & FLOM LLP JOHNSON MOORE LLC

1440 New York Ave., NW 150 North Wacker Drive

Washington, DC 20005 Suite 1250

202-371-7000 Chicago, 1L. 60606

312-549-9990

Jenny johnson@

jmtaxlitigation.com

Altorneys for Amicus Curiae

WiILSON-EPES PrinminG Co., Inc. — (202) 789-0096 — WasrencTon, D.C. 20002

TABLE OF CONTENTS

Page

pr a by, tn Ee ill

STATEMENT OF INTEREST .....................2c0ceeeescees ]

Fg a St hs Sy nr ee 3

IEE sich aicncnnivcddnsdtvatpeieiesased neddhaodinsenitonccsets 4

Zs Without a Narrowing Interpretation

from this Court, the Residual Clause of

§ 7212(a) Presents Grave

Constitutional Concerns. .............0.........06000- A

A. The Residual Clause of § 7212(a)

Fails to Give Fair Notice of the

Conmdtict 86 PuUmimios........c0..ccceccccccccsce0. 4

B, The Residual Clause of § 7212(#)

is So Standardless that it Invites

Arbitrary Enforcement. .................... 11

1. Courts have Struggled to

Craft Principled and

Intelligible Boundaries

Around the Residual

RN i246 caatebs cidineintaenmanseans 1]

2. Prosecutors have

Abandoned All Objective

Standards Limiting

Prosecutions Under the

Residual Clause. ................

ee

il

TABLE OF CONTENTS

Page(s)

II. This Court Should Interpret the

Residual Clause of § 7212(a) as a

Specialized Too] Within the Tax

IS MID iis cncheskonnoecvecsinccsscsusenes 20

A. To Interpret § 7212(a), the Court

Must Consider its Role in the Tax

Enforcement System......................+-. 21

B. Tethering the Residual Clause to

an Existing Proceeding Prevents

it from Subsuming the Other Tax

Crimes and Provides the Nexus

Required for Intent to Obstruct. ...... 24

C. § 7212(a) Must Require

Knowledge of Ulegality and an

He BR Ga stttbrctdtinmeticennnsicens 27

l. Requiring Knowledge of

illegality as an Element of

a Tax Crime is Necessary

to Preserve Due Process. ....... 27

2. § 7212(a) Should Not be an

Exception to the Rule that

Tax Felonies Require an

AEP ARIEIS BGR... «.6cc0s<.000sces00s: 31

D. Any Broader Reading of

§ 7212(a) Threatens to

Undermine the Tax Enforcement

RI Ni cats tains decease nadacmnoasamsiiontan 33

EOE I csinaithc scuccccaeeiicsscica ig sands cacaioiennmnmeniens 35

iil

TABLE OF AUTHORITIES

CASES:

Arthur Andersen LLP v. United States,

644 U.S. 686 (3006)....................

Badaracco v. Commissioner,

464 U.S. 386 (1984)....................

Champlin Ref. Co. v. Corp. Comm'n,

, ech Go 0) ee

Cheek v. United States,

496 U.S. 192 (1901)....................

Clark v. Martinez,

643 U.S. 371 CGOS)..........2....00022-

Johnson v. United States,

135 S. Ct. 2551 (2015)................

McDonnell v. United States,

136 S. Ct. 2355 (2016)................

McNally v. United States,

4838 U.S. 360 (1987)....................

Pettibone v. United States,

148 U.S. 197 (1893)...............se08

Skilling v. United States,

661 U.S. 358 (2010)................--+.

Page(s)

iv

TABLE OF AUTHORITIES

Page(s)

Spies v. United States,

Be ees ee II a iiticctniwnccceccsuissoosuns 22, 23, 31

United States v. Agutlar,

ee ee Ce ais vce ves picnnesncccensarascpenvace 12, 26

United States v. Bishop,

ON II vascccckinnecscensiccsvasinsoiemeiasscnsuns 28

United States v. Bowman,

173 F.3d 595 (6th Cir. 1999)............13, 14, 26, 27

United States v. Dean,

487 F.3d 840 (11th Cir. 2007)........................... 30

United States v. Floyd,

740 F.3d 22 (Ast Cir. 2014) .....ccccccceccccecceseeeseee. 15

United States v. Giambaivo,

810 F.3d 1086 (8th Cir. 2016).............00000 ee 17

United States v. Kassouf,

144 F.3d 952 (6th Cir. 1998)............12, 13, 14, 26

United States v. Kelly,

147 F.3a 172 (a Cir. 1908) ..............-..... 4, 29, 30

L/nited States v. Marinelio,

839 F.3d 209 (2d Cir. 2016)....................... passim

Vv

TABLE OF AUTHORITIES

Page(s)

United States v. Marinelilo,

I Ss GE TIPE OD onancadetecicssiccssovonnncese 33

United States v. Massey,

419 F.3d 1008 (9th Cir. 2005)........ nena a LT 15

United States v. Miner,

774 F.3d 336 (6th Cir. 2014).............. ....14, 26, 27

United States v. Popkin,

943 F.2d 1635 (11th Cir. 1991)..................... 4,16

United States v. Reeves,

752 F.2d 995 (5th Cir. 1985).................. 11, 15, 16

United States v. Saidana,

427 F.3d 296 (6th Cir. 2005).............20...-.-.. 4, 30

United States v. Sorensen,

801 F.3d 1237 (10th Cir. 2015).................. passim

United States v. Sun-Diamond Growers,

i: I cs nticsendnsceneceiassatnionenisones 20

United States v. Walasek,

527 F.2d 676 (3d Cir. 1975) ...................-.ceseesess 26

United States v. Williams,

644 F.2d 696 (8th Cir. 1981)....................... 12, 18

vl

TABLE OF AUTHORITIES

Page(s)

United States v. Williamson,

746 F.3d 987 (10th Cir. 2014)..................... 29, 30

United States v. Wood,

384 F. App’x 698 (10th Cir. 2010) .............0...... 32

U.S. Civil Service Comm'n v. Letter Carriers,

ee es ee Ee icniccncssccecterercssrcarcuviecneeireioses 20

Yates v. United States,

Oe i ee Rose cinivrccnsocsonsecgentasocecone 11, 21

STATUTES AND REGULATIONS:

LL od hae eee neu v a ene 12, 16, 25

BN Eee Se BID srecighes a cesaeinsdppcerbdierertnssissasenadiasligsiorkodnepnahen 24

et Se ee)

OE TI is stovncen cocaine YA, 25, 32

Ee C, , aa eaee 24, 27

lk a eee 24

LE Se a ES eT 12, 16, 32

Be Ee PA aicaiee i tivoncicecicieouacetoonictas passim

Vil

TABLE OF AUTHORITIES

Page(s)

|, ET 24

ee BG vices sinsansntssniesesenssunsonvscnobenacissosensanies 8

Internal Revenue Code of 1954,

Pub. L. No. 83-591, 68A Stat. 855.............. 11, 25

RULES:

oceans ssa deeiossnbactlbdeniniciiy 1

OTHER AUTHORITIES:

Camilla E. Watson, Tax Lawyers, Ethical

Obligations, and the Duty to the

System, 47 U. Kan. L. Rev. 847 (1999) .............. 7

Department of Justice Tax Division,

Directive No. 77 (1989), superseded by

ib BO: TT TI nino nc sveserciccsssecesceosas 18, 19

John S. Dzienkowski & Robert J. Peroni, The

Decline in Tax Adviser Professionalism

in American Society, 84 Fordham L.

ee iiss. nadliadindagesonstieunesatabnapennen 6

Linda Galler, The Tax Lawyer's Duty to the

System, 16 Va. Tax Rev. 681 (1997) ..............06+. 7

Vili

TABLE OF AUTHORITIES

Page(s)

Todd Haugh, SOX on Fish: A New Harm of

Overcriminalization, 109 NW. U. L. Rev.

CPUNIIO BE Ci osveciinactcccinsnticscnasanenetincnl te 35

U.S. Dep’t of Justice, Criminal Tax Manual § 2.00

(2012), https://www justice. gov/sites/default/

files/tax/legacy/2015/03/27/

CTM%20Chapter%202.pdf.....2.0... oe. ceeececcceeeeeeee 34

BRIEF OF

AMERICAN COLLEGE OF TAX COUNSEL

AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

American College of Tax Counsel (the “College”)

respectfully submits this brief as amicus curtae in

support of petitioner Carlo J. Marinello, II.'

STATEMENT OF INTEREST

The College is a nonprofit professional

association of tax lawyers in private practicc, in law

school teaching positions, and in government, who

are recognized for their excellence im tax practice

and for their substantial contributions and

commitment to the profession. The purposes of the

College are:

e To foster and recognize the excellence of its

members and to clevate standards in the

practice of the profession of tax law;

e To stimulate development of skills and

knowledge through participation in continuing

legal education programs and seminars;

—<

' Pursuant to Rule 37.6, counsel for amicus curiae

states that no counsel] for a party authored this brief in

whole or in part, and no party or counsel for a party made

a monetary contribution intended to fund the preparation

or submission of this brief. No person other than amicus

curiae, its members, or its counsel made a monetary

contribution to its preparation or submission. All parties

have consented to the filing of this bricf.

2

e To provide additional mechanisms for input by

tax professionals in development of tax laws

and policy; and

e To facilitate scholarly’ discussion and

examination of tax policy issues.

The College is composed of approximately 700

Fellows recognized for their outstanding reputations

and contributions to the field of tax law, and is

governed by a Board of Regents consisting of one

Regent from each federal judicial circuit, two

Regents at large, the Officers of the Colleg and the

last retiring President of the College.

This amicus brief is submitted by the College’s

Board of Regents and does not necessarily reflect the

views of all members of the College. including those

who are government employces.

Effective tax enforcement requires uniform,

predictable and comprchensible distinctions betweeu

lawful business practices and felonies. The College

submits this amicus brief because it is deeply

concerned that the lower courts’ unbounded reading

of the residual clause in 26 U.S.C. § 7212(a) erases

those distinctions and impermissibly shifts the

power to define criminal] liability to prosecutors.

Narrowed appropriately, the residual clause in

§ 7212(a) has a specialized role to play in combating

obstruction of tax enforcement. Read broadly, it

threatens principles at the foundation of our system

of justice and creates undue risk for both taxpayers

and Fellows of the College who have devoted their

careers to helping taxpayers navigate the tax laws.

3

SUMMARY OF ARGUMENT

The Court has “traditionally exercised restraint

in assessing the reach of a federal criminal statute,

both out of deference to the prerogatives of Congress

and out of concern that a fair warning should be

given to the world in language that the common

world will understand, of what the law intends to do

if a certain line is passed.” Arihur Andersen LLP v.

United States, 544 U.S. 696, 703 (2005) (citation

omitted). Desire to ensure fair warning and

deference to Congress coincide to point unequivocally

in the direction of a narrow reading of the residual!

clause of § 7212(a).

The unbounded reading of § 7212(a) espoused by

the Government and adopted by the court below

deprives taxpayers and their advisors of fair notice

of the conduct it punishes, and invites arbitrary

enforcement by prosecutors empowered with vast

discretion. These potential constitutional infirmities

militate in favor of a narrow reading of § 7212(a)

that recognizes its specialized role in_ the

comprehensive tax enforcement system enacted by

Congress and adopts the safeguards that Congress

and the courts have developed to ensure due process

in prosecutions for tax crimes and obstruction of

justice.

Narrowed appropriately, § 7212(a) is a tool to

combat interference with an _ identifiable tax

enforcement activity by a defendant who commits an

affirmative act to obstruct or impede with knowledge

of that activity and intent to gain an advantage he

knew to be unlawful. Any broader reading would

implicate constitutional principles and eviscerate the

4

comprehensive tax enforcement system Congress

enacted.

ARGUMENT

I. Without a Narrowing Interpretation from

this Court, the Residual Clause of § 7212(a)

Presents Grave Constitutional Concerns.

The Court recently confirmed that the

Government violates the guarantee of due process

“by taking away somcone’s life, liberty, or property

under a criminal law so vague that it fails to give

ordinary people fair notice of the conduct it

punishes, or so standardless that it invites arbitrary

enforcement.” Johnson v. United States, 135 S. Ct.

2551, 2556 (2015) (citing Kolender v. Lawson, 461

U.S. 352, 357-58 (1983)). The unbounded reading of

the residual clause espoused by the Government and

adopted by the court below has both vices of a vague

statute.

A. The Residual Clause of § 7212(a) Fails

to Give Fair Notice of the Conduct it

Punishes.

The residual clause of § 7212(a) makes it a felony

to “in any other way corruptly .. . obstruct[] or

impede[ ], or endeavor| | to obstruct or impede, the

due administration of this title.” The lower courts

have defined “corruptly” to mean “with intent to gain

an unlawful advantage or benefit either for oneself

or another.” See, e.g., United States v. Sorensen, 801

F.3d 1217, 1224 (10th Cir. 2015); United States v.

Saldana, 427 F.3d 298, 305 (5th Cir. 2005); United

States v. Kelly, 147 F.3d 172, 177 (2d Cir. 1998);

United States v. Popkin, 943 F.2d 1535, 1540 (11th

Cir. 1991). Taking false comfort from the “corruptly”

5

mens rea requirement, the Second Circuit in the

decision below refused to limit the scope of § 7212(a)

to interference with a pending Internal Revenue

Service (“IRS”) action of which the defendant was

aware, and found that no affirmative act is

necessary for this felony. United States v. Marinello,

839 F.3d 209 (2d Cir. 2016). Head that broadly,

§ 7212(a) criminalizes any act or omission that could

potentially make any aspect of the IRS’s job harder

in any way as long as the defendant committed the

act or omission with an intent to gain an unlawful

benefit—-whether or not the defendant knew the

benefit was unlawful, whether or not the act or

omission was itself a lawful act, whether or not the

defendant acted deceitfully, whether or not the

defendant could foresee any nexus between the act

or omission and the IRS, and whether or not the act

oT Omission occurred within the adversarial process.

The Government argues that “unlike justice

administered in a court proceeding—which is a

defined, discrete event-—-tax administration is

continuous, ubiquitous, and universally known to

exist.” Resp’t’s Br. in Opp’n at 9. It is precisely this

continuous, ubiquitous, and universal nature of tax

administration that renders an unbounded

interpretation of the residual clause of § 7212(a)

unconstitutionally vague. In administering the tax

code, the IRS plays every conceivable role:

lawmaker when it promulgates regulations and

rulings; administrator when it processes returns and

payments; investigator when it conducts civil audits

or criminal investigations; settlement officer when

the Office of Appeals considers a disagreement

between the taxpayer and cxaminer; litigator when

6

attorneys in the Office of Chief Counsel represent

the IRS in adversarial court proceedings; decision-

maker when it rules on Private Letter Ruling

requests; and ethics board when it creates rules for

practice before the IRS and enforces those rules

through its Office of Professional Responsibility.

Countless otherwise lawful acts or omissions could

impede the IRS in one of its myriad roles. By giving

prosecutors the discretion to convert any one of those

countless acts or omissions into a federal felony, the

residual clause violates the Constitution’s

prohibition on vague criminal] laws.

Tax lawyers, including Fellows of the College,

face an especially heightened risk of wrongful

prosecution without fair notice under the residual

clause of §7212(a). Tax lawyers owe duties of

confidentiality and zealous advocacy to their clients

that often compete with an ill-defined duty to the tax

system that may morph depending on whcther the

lawyer is engaged in tax planning, audit defensc,

litigation or any other type of interaction with the

IRS. Defining the duties owed to the IRS in each

context, and striking the right balance between

those duties and often conflicting duties owed to

taxpayer clients, is no easy feat. Indeed, the scope of

these duties and appropriate resolution of the

inevitable conflicts between them arc the subject of

significant dispute and consternation.2 These are

2 See, e.g., John S, Dzienkowski & Robert J. Peroni,

The Decline in Tax Adviser Professionalism in American

Society, 84 Fordham L. Rev. 2721, 2725 (2016) (describing

the longstanding debate over the tax lawyer's role and

arguing that, although the lawyer has a duty to the

(cont'd)

7

muddy waters for even the most experienced tax

lawyers, and the Second Circuit’s reading of

§ 7212(a) gives prosecutors the unfettered right to

decide that a lawyer's attempt to strike the right

balance was not only crroneous, but may be charged

as felony obstruction. Tax lawyers already forced to

sail through Scylla and Charybdis to comply with

their ethical obligations should not face the

additional threat of felony prosecution on one side of

the strait.

Without a narrowing interpretation of § 7212(a),

the line between effectively representing a taxpayer

and what a prosecutor could charge as corruptly

impeding the IRS is nonexistent. For example, when

handling an audit, the taxpayer's lawyer may

discover that the taxpayer underpaid his tax. In our

adversarial system of justice, there is no duty

imposed on the lawyer to expose flaws in the

taxpayer's returns or recordkeeping during an JRS

audit. Indeed, the lawyer is obligated two preserve

the confidentiality of information shared by the

taxpayer within the attorney-client privilege and to

(cont'd from previous page)

system, “concrete guidance” on the scope of that duty is

needed); Camilla EI. Watson, Tax Lawyers, Ethical

Obligations, and the Duty to the System, 47 U. Kan. L.

Rev. 847, 851 (1999) (recognizing the contested question

of how a tax lawyer’s duties conflict and arguing that

there is no discrete duty by the lawyer to the tax system);

Linda Guller, The Tax Lawyer's Duty to the System, 16

Va. Tax Rev. 681, 687-88 (1997) (taking the position that

when u lawyer’s two duties collide, the duty to the system

takes priority).

8

help the taxpayer minimize his exposure for

additional tax and criminal or civil penalties to the

extent she can do so within her ethical obligations.

As interpreted by the Second Circuit, however,

§ 7212(a) authorizes felony prosecution for an

omission that impedes the administration of the tax

code if it is committed with intent to gain an

unlawful advantage for oneself or another. Is the

tax lawyer’s failure to notify the IRS of her client's

tax deficiency, committed with intent to gain an

unlawful advantage for her client in the form of a

lower tax liability, a felony under § 7212(a)?

Similarly, what risk might a tax lawyer (or her

client) face when the newly retained tax lawyer

discovers through a review of the client’s financial

records and previously filed tax returns that certain

items of income were not properly reported on those

returns? Treasury reguiations counsel that the tax

lawyer who knows that her client has not complied

with the tax laws, or has made an error or omission

in his return, must “advise the client promptly of

such noncompliance, error, or omission” and “the

consequences . . . of such noncompliance, error, or

omission.” 31 C.F.R. § 10.21. This Court has held

that the tax code does not require the filing of

amended returns. SBadaracco v. Commissioner, 464

U.S. 386, 397 (1984). If the tax lawyer explains the

law to her client and the chent elects not to amend

his returns in the hope that the IRS does not select

his returns for examination, can the lawyer or her

client be prosecuted under § 7212(a) for such failure

to act?

Consider also that tax lawyers handling IRS

audits routinely receive requests for an interview of

9

the taxpayer. Participating in that interview is often

not in the taxpayer’s best interests, and an effective

lawyer would advise the client of the risks of an

interview and then attempt to avoid it. Is it a

violation of § 7212(a) for the lawyer to stall the

auditor and avoid scheduling the interview? Is it a

violation of § 7212(a) to schedule the interview, but

advise the taxpayer to assert his Fifth Amendment

privilege against self-incrimination throughout the

interview? Either way, the tax lawyer is impeding

the IRS in its effort to administer the tax code, and

doing so with the intent to gain an unlawful

advantage for her client in the form of a lower tax

liability. There is nothing in § 7212(a) to distinguish

deceitful dodging from honest stalling, or to

differentiate protection of Constitutional privileges

from other kinds of stonewalling.

Similar obstruction of the IRS happens routinely

in the normal course of litigation between taxpayers

and the IRS. Indeed, the central issue in tax

litigation is typically whether the taxpayer was

entitled to the reduced tax liability he claimed, or

whether the reduction was an “unlawful benefit.” If,

at the conclusion of the litigation, the court finds

that the taxpayer's correct tax liability was higher

than he reported on his return, is everything the

taxpayer and his lawyer did to impede the IRS in its

effort to win the case—such as objecting to

interrogatories or disputing requests to admit—

suddenly a felony in hindsight? Nothing in § 7212(a)

carves out actions taken in the course of litigation

maintained in good faith.

In addition to the risks of wrongful prosecution

arising from adversarial interactions with the IRS,

10

there are also countless actions or omissions that

could trigger a prosecution under § 7212(a) even

though the eventual impact on the IRS is both

unforeseen and unforeseeable. For example, a small

restaurant may store its register tapes and other

records in the basement. If, when installing a new

freezer, the owner’s son runs the electrical wires

himself to avoid the cost of hiring a _ licensed

electrician, he will have acted with intent to secure

an unlawful benefit for the restaurant in the form of

money saved by not complying with the local

building code. If a fire caused by the faulty wiring

destroys the register tapes and other records, and

the IRS subsequently audits the restaurant, the lack

of records would impair the IRS’s ability to examine

the restaurant's income. The restaurant owner’s

son, therefore, could be prosecuted under the

residual clause of § 7212{a) because actions he took

with intent to gain an unlawful benefit for the

restaurant impeded the administration of the tax

code. Although local building codes are certainly

important, a failure to comply should not become a

federal felony simply because it kicks off a chain of

events that makes the [RS’s job harder at some point

in the future.

As this Court recognized long ago, “fijt is not the

penalty itself that is invalid, but the exaction of

obedience to a rule or standard that is so vague and

indefinite as to be really no rule or standard at

all.” Champlin Ref. Co. v. Corp. Comm’n, 286 U.S.

210, 243 (1932) (citations omitted). Under the

reading espoused by the Government and adopted by

the court below, the residual clause of § 7212(a) is

really no rule or standard at all, yet it touches “every

11

aspect of economic life.” United Stutes v. Reeves, 752

F.2d 995, 999 (5th Cir. 1985). Such a pervasive yet

simultaneously indefinite criminal statute does not

pass Constitutional muster.

B. The Residual Clause of § 7212(a) is So

Standardless that it Invites Arbitrary

Enforcement.

{In addition to failing to give ordinary people—vor

even highly educated tax lawyers—fair notice of

what conduct is proscribed, the residual clause of

§ 7212(a) impermissibly shifts the balance of power

“between ‘the legislature, the prosecutor, and the

court in defining criminal liability.” Yates v. United

States, 135 S. Ct. 1074, 1088 (2015) (quoting

Liparota v. United States, 471 U.S. 419, 427 (1985)).

Like the residual clause in Johnson, the residual

clause in § 7212(a) “produces more unpredictability

and arbitrariness than the Due Process Clause

tolerates.” Johnson, 135 S. Ct. at 2258. In Johnson,

the Court found that “repeated attempts and

repeated failures to craft a principled and objective

standard out of the residual clause confirm its

hopeless indeterminacy.” fd. The lower courts have

been unable to define any consistent, intelligible

boundaries for §7212(a) and the Government has

progressively abandoned all objective standards it

previously applied in self-restraint.

1. Courts have Struggled to Craft

Principled and Intelligible

Boundaries Around the Residual

Clause.

Although § 7212(a) was enacted with the Internal

Revenue Code of 1954, Pub. L. No. 83-591, 68A Stat.

12

855, the Government refrained from using the

residual clause for over twenty-five years. In the

first reported appellate decision interpreting the

residual clause, the court noted that it could find no

other cases brought by the Government and would,

therefore, “proceed cautiously where for over twenty-

five years the Government has feared to tread.”

United States v. Williams, 644 F.2d 696, 699 (8th

Cir. 1981). In Williams, the government

acknowledged that it had previously asserted that

§ 7212 applied only to situations involving force or

threats of force, but characterized that position as

“tumid” and sought a mvure expansive interpretation

of the statute. Jd. at 699 n.12. The court in

Williams agreed, finding that “the broad language of

section 7212’s omnibus clause demands a

correspondingly broad construction.” Jd. at 700.

Since then, the Government's continuing efforts to

expand the scope of § 7212(a) have met with some

trepidation from the lower courts, but no uniform,

predictable, or comprehensible limits on

prosecutorial discretion.

The Court of Appeals for the Sixth Circuit has

made the most progress toward articulating an

intelligible boundary on the scope of § 7212(a).

Relying heavily on this Court's interpretation of 18

U.S.C. § 1503 in United States v. Aguilar, 515 U.S.

593 (1995), and observing that the residual! clause in

§ 7212(a) contains language virtually identical to

§ 1503, the Sixth Circuit construed the omnibus

clause as requiring proof that a defendant was aware

of “some pending IRS action” when he engaged in

the potentially impeding conduct. United States v.

Kassouf, 144 F.3d 952, 957 (6th Cir. 1998). The

13

Kassouf court correctly expressed concern that

broader application of § 7212(a) could “open[ ] the

statute to legitimate charges of overbreadth and

vagueness” and reluctance to construe the statute to

impose criminal liability on a defendant who “may

have no idea that conduct such as the failing to

maintuin records (before his tux returns were ever

filed) might obstruct IRS action because he had no

specific knowledge that the IRS would ever

investigate his activities.” /d. at 958.

The following year, a different pane] of the Sixth

Circuit held that Kassouf should be limited to its

precise holding and facts, and that § 7212(a) may

apply to defendants who anticipatorily try to impede

the administration of the internal revenue laws

before the pendency of any IRS proceeding. United

States v. Bowman, 173 F.3d 595, 600 (6th Cir. 1999).

In Bowman, the defendant was prosecuted under

§ 7212(a) after he attempted to prompt an IRS

investigation into several of his creditors by filing

forms with the IRS that falsely indicated that his

creditors had received taxable income. Id. at 599.

The court opined that “[ajll of the reasoning in

Kassouf supports the conclusion that an individual’s

deliberate filing of false forms with the IRS

specifically for the purpose of causing the IRS to

initiate action against a taxpayer is encompassed

within §7212(a)’s proscribed conduct,” and

differentiated the two cases factually on the grounds

that “[t}he filing of false tax forms is not legal when

undertaken; it is not speculative; it is specifically

designed to cause a particular action on the part of

the IRS.” Id. at 600.

14

Most recently, the Sixth Circuit found that

“although Bowman purported to limit Kassouf to its

facts, it would be more accurate to conclude that the

opposite is true.” United States v. Miner, 774 F.3d

336, 345 (6th Cir. 2014). As explained by the court

in Miner, Kassouf “applies to defendants whose

conduct in failing to disclose or in _ peculiarly

structuring their income and financial transactions

gencrally makes it more difficult for the IRS to

identify and collect taxable funds,” id. at 345 (citing

Kassouf, 144 F.3d at 953), while Bowman “is

reducible to a rule that a defendant who

intentionally attempts to instigate a frivolous IRS

proceeding cannot claim to have lacked the

necessary intent to impede the IRS’s administration

of its statutory duties with respect to that

proceeding.” é/d. (citing Bowman, 173 F.3d at 600).

The court found, therefore, that the government

erred in characterizing “Kassouf as an exception to

Bowman, rather than the other way around.” Zd. at

344. In an effort to reconcile the two earlier

decisions, the Miner court noted that “Bowman, in

rejecting Kassoufs application to a defendant who

was attempting to instigate a frivolous IRS

proceeding rather than to impede a preexisting one,

did so primarily because it believed that the indicia

of intent to impede were patently obvious.” Id.

The state of the law in the Sixth Circuit,

therefore, appears to be that the government must

prove that the defendant was aware of a specific IRS

action at the time of the potentially impeding

conduct, unless the intent to impede is “patently

obvious.” Rules with undefined and inarticulable

exceptions are no longer rules, and cannot transform

15

an unconstitutionally vague criminal law into one

that complies with the Due Process Clause.

Moreover, the Sixth Circuit’s efforts to define

some boundary around § 7212(a) have met with

disagreement from every other circuit that has

considered the issue. Marinello, 839 F.3d 209;

United States v. Sorensen, 801 F.3d 1217 (10th Cir.

2016); United States v. Floyd, 740 F.3d 22 (ist Cir.

2014); United States v. Massey, 419 F.3d 1008 (9th

Cir. 2005). Refusing to impose any similar

boundaries on prosecutions under § 7212(u), the

other courts misguidedly rely on the “corruptly”

mens rea to differentiate lawful conduct from felony

obstruction. Marinello, 839 F.3d 209, 222 (“[O]ther

courts ... have decided that section 7212(a)’s ‘mens

rea requirement’ sufficiently ‘restricts the omnibus

clause’s reach. ...” (citing Miner, 744 F.3d at 347)).

In United States v. Reeves, 752 F.2d 995 (5th Cir.

1985), the court noted that it had “upheld section

1503 as not unconstitutional un vagueness grounds

largely because the statute covers only actions

related to pending judicial proceedings, thus

providing adequate notice to potential violators.” Id.

at 999 (citing United States v. Howard, 569 F.2d

1331, 1336 n.9 (5th Cir. 1978)). The court

recognized, however, that the “narrow circumstances

in which section 1503 applies have no parallel in

cases involving section 7212(a)” because the IRS “is

permitted great power to intrude on, and investigate

virtually every aspect of economic life to effect its

purpose of administering the tax laws.” /d. at 999.

The court, therefore, sought to provide the notice

required for due process by construing the

statutorily-undefined “corruptly” mens rea. The

16

court found no cases interpreting the word

“corruptly” in §7212, so it looked to a case

construing the term in § 1503 and the legislative

history of § 7212 to craft a definition. Drawing on a

Senate report that provided one example of what the

statute meant by “corruptly endeavor,” the court

found that the example—corrupt solicitation—was a

paradigm of a corrupt endeavor. /d. at 1000-01. The

court, therefore, defined “corruptly’ endeavoring to

impede or obstruct Title 26 as forbidding those acts

done with the intent to secure an unlawful benefit

either for oneself or for another.” Jd. at 1001.

Subsequent decisions adopting this definition

shed light on the persisting lack of clarity in

§ 7212(a). For example, in United States v.

Sorensen, the defendant used trusts to reduce his

taxabic assets, and insisted at trial that he did not

know that the use of the trusts or the reduction in

his tax liability was unlawful. 801 F.3d at 1229-30.

The district court refused to give the defendant’s

requested jury instruction that to find him guilty,

the jury must find that he knew the use of the trusts

was illegal. Jd. at 1229. The Tenth Circuit affirmed,

finding that it need not decide whether the definition

of corruptly requires knowledge of illegality. Jd. at

1230.

While leaving open the question of whether

§ 7212(a) requires that the defendant knew that the

benefit he sought was unlawful, the courts have

found that the defendant need not have committed

any unlawful act because “an otherwise lawful act

could violate the statute by being carried out for a

corrupt purpose or in a corrupt manner.” United

States v. Popkin, 943 F.2d 1535, 1538 (11th Cir.

17

1991) (affirming conviction of an attorney who

formed a domestic corporation). Moreover, the

unlawful benefit necd not have any relationship to

tax administration, or cven constitute a financial

benefit. United States v. Giambalvo, 810 F.3d 1086,

1098 (8th Cir. 2016) (rejecting the argument that

“the term corruptly is limited to situations in which

the defendant wrongfully sought or gained a

financial advantage” (quoting United States ov.

Yagow, 953 F.2d 423, 427 (8th Cir. 1992))). In other

words, a lawful act committed with intent to secure

any sort of economic or non-economic benefit that

turns out to be unlawful—even if the defendant had

no knowledge of illegality—is sufficient for

prosecution under §7212(a) as it has been

interpreted by the lower courts.

Finally, in the decision below, the Second Circuit

eliminated any vestige of a limitation on the scope of

§ 7212(a) by not only disavowing the Sixth Circuit's

pending action requirement, but by announcing that

§ 7212(a)}—unlike every other tax felony—requires

no affirmative act by the defendant. The court

acknowledged that “the scope of omissions on which

an omnibus clause violation could be based is not

limitless,” but provided no other guidance about

where that line might be drawn. Marinello, 839 F.3d

at 225 n.15 (citing United States v. Wood, 384 F.

App’x 698, 708 (10th Cir. 2010)). Instead, the court

simply concluded that “{w]hatever those limits may

be, the omissions at issue here do not exceed them.”

Id. at 225 n.15.

Prosecutions under the residual clause of

§ 7212(a) are a morass of uncertainty because the

lower courts have failed to articulate any principled,

18

intelligible, and predictable boundaries on its scope.

As tn Johnson, “the experience of the federal courts

leaves no doubt about the unavoidable uncertainty

and arbitrariness of adjudication under the residual

clause.” 135 S. Ct. at 2562.

2. Prosecutors have Abandoned Ali

Objective Standards Limiting

Prosecutions Under the Residual

Clause.

After rejecting its previous “timid” interpretation

of § 7212(a) in 1981, Williams, 644 F.2d at 699, the

Government has steadily expanded its interpretation

of the residual clause, abandoning all objective

criteria it previously used to define when a

prosecutor could charge a violation of § 7212(a). In

1989, the Department of Justice Tax Division issued

Directive No. 77, which stated:

In general, the use of the “omnibus” provision

of Section 7212(a) should be reserved for

conduct occurring after a tax return has been

filed—typically conduct designed to impede or

obstruct an audit or criminal tax

mvestigation.... However, this charge might

also be appropriate when directed at parties

who engage in large-scale obstructive conduct

involving actual or potential tax returns of

third parties.

This policy provided at least some _ intelligible

boundaries: the residual clause of § 7212(a) could be

used to charge obstructive conduct after a tax return

was filed, which by nature typically involves an

audit or investigation, or large-scale obstructive

conduct involving liabilities of third parties, which

19

by nature foreseeably impacts the administration of

the tax laws. In both situations, there would be a

nexus between the conduct at issue and the duc

administration of the tax laws that was not wholly

speculative.

That directive, however, was superseded in 2004

by Directive No. 129, which instead instructs

prosecutors that:

A §7212(a) omnibus clause charge is

particularly appropriate for corrupt conduct

that is mtended to impede an IRS audit or

investigation... .

A § 7212(a) omnibus clause charge can also

be authorized in appropriate circumstances to

prosecute a person who, prior to any audit or

investigation, engaged in large-scale

obstructive conduct involving the tax liability

of third parties.

The notion that the residual clause of § 7212(a)

should be reserved for conduct occurring after a tax

return has been filed disappeared entirely from the

policy in 2004. This policy shift significantly

broadened the potential for abuse by individual

prosecutors because it opened the door to

prosecutions where there was no foresecable nexus

between the defendant's conduct and _ the

administration of the tax laws, and to prosecutions

for felony obstruction based on conduct described

elsewhere in the code as a misdemeanor.

The Government’s continuous expansion of its

own reading of § 7212(a) illustrates the difficulty of

defining intelligible boundaries around the residual

clause and underscores that the Court “cannot

20

construe a criminal statute on the assumption that

the Government will ‘use it responsibly.” McDonnell

uv. United States, 136 S. Ct. 2355, 2372-73 (2016)

(citing United States v. Stevens, 559 U.S. 460, 480

(2010)); see also United States v. Sun-Diamond

Growers, 526 U.S. 398, 408 (1999) (declining to rely

on “the Government's discretion” to protect against

overzealous prosecutions). Rather, this Court should

either give the lower courts the necessary guidance

to interpret §7212(a) uniformly by crafting

articulable, objective boundaries around the residual

clause, or let Congress fill the void with an

appropriately drafted statute.

Il. This Court Should Interpret the Residual

Clause of § 7212(a) as a Specialized Tool

Within the Tax Enforcement System.

If this Court chouses to save the residual clause

from constitutional infirmity, principles of statutory

interpretation demand a narrow reading of § 7212(a)

as a specialized tool within the tax enforcement

system. This Court has previously recognized that

when a statute’s constitutionality is in doubt, “our

task is not to destroy the Act if we can, but to

construe it, if consistent with the will of Congress, so

as to comport with constitutional limitations.” U.S.

Civil Service Comm'n v. Letter Carriers, 413 U.S.

548, 571 (1973); see also Skilling v. United States,

561 U.S. 358, 403 (2010). The canon of

constitutional avoidance “is a tool for choosing

between competing plausible interpretations of a

statutory text, resting on _ the _ reasonable

presumption that Congress did not intend the

alternative which raises serious constitutional

doubts.” Clark v. Martinez, 543 U.S. 371, 381-382

21

(2005) (citing Rust uv. Sullivan, 500 U.S. 173, 191

(1991), and Edward J. DeBartolo Corp. v. Fla. Gulf

Coast Bidg. & Constr. Trades Council, 485 U.S. 568,

575 (1988)). The canon is a “means of giving effect to

congressional intent, not of subverting it.” /d. at

382. In addition, under the rule of lenity, “when

there are two rational readings of a criminal! statute,

one harsher than the other, [the Court should]

choose the harsher only when Congress has spoken

in clear and definite language.” McNally v. United

States, 483 U.S. 350, 359-60 (1987) (citations

omitted).

The Court can honor the rule of lenity and give

effect to Congressional intent by recognizing that

§7212(a) is a specialized tool within the

comprehensive tax enforcement system designed by

Congress and that the safeguards Congress and the

courts adopted to ensure due process in prosecutions

for tax crimes and obstruction of justice apply

equally to § 7212(a).

A. To Interpret § 7212(a), the Court Must

Consider its Role in the Tax

Enforcement System.

In Yates v. United States, 135 S. Ct. 1074 (2015),

the plurality, concurrence, and dissent all agreed

that statutory terms should be interpreted “in their

context and with a view to their place in the overall

statutory scheme.” Id. at 1092 (Kagan, J.,

dissenting) (quoting Davis v. Michigan Dep't of

Treasury, 489 U.S. 803, 809 (1989)). Members of the

Court disagreed about which direction the context

pointed in that case, but uniformly embraced the

approach of looking to how the provision at issue fit

22

in the overall statutory scheme. When interpreted

in context and with a view to its place in the overall

statutory scheme, it is readily appurent that

Congress intended § 7212(4) to perform a spccific

role within the tax enforcement system rather than

to serve as a catchall felony for prosecutors to use at

their whim.

Interpreting tax crimes by looking at their role in

the structure of sanctions imposed by Congress is

nothing new. Indeed, when called upon to interpret

the felony offense of tax evasion, the Court looked to

“its context in the revenue laws.” Spies v. United

States, 317 U.S. 492 (1943). As the Court explained

in Spies:

Congress has imposed a variety of sanctions

for the protection of the system and the

revenues. The relation of the offense of which

this petitioner has been convicted to other

and lesser revenue offenses appears more

clearly from its position in this structure of

sanctions.

Id, at 495. The Court described the escalating civil

penalties corresponding to different levels of intent,

the misdemeanor for willful failure to pay tax when

due, and the tax evasion felony at the “climax” of

available sanctions. Acknowledging that the

“difference between willful failure to pay a tax when

due, which is made a misdemeanor, and willful

attempt to defeat and evade one, which is made a

felony, is not easy to detect or define,” the Court

sought to distinguish them because “it would be

unusual and we would not readily assume that

Congress by the felony ... meant no more than the

23

same decrelictions it had just defined ... as a

misdemeanor.” Jd. at 497.

The Spies Court found the distinction between

the misdemeanor and the felony in the “affirmative

action implied from the term ‘attempt’, as used in

the felony.” Jd. at 498. As explained by the Court:

We think that in employing the terminology of

attempt to embrace the gravest of offenses

against the revenues Congress intended some

willful commission in addition to the willful

omissions that make up the list of

misdemeanors. Willfu) but passive neglect of

the statutory duty may constitute the lesser

offense, but to combine with it a willful and

positive attempt to evade tax in any manner or

to defeat it by any means lhfts the offense to

the degree of felony.

Id. at 499. The distinction between the tax

misdemeanors and felony evasion crafted by the

Court in Spies remains a core principle at the heart

of the tax enforcement system.

The tax enforcement system enacted by Congress

and interpreted by the courts creates uniform,

predictable, and comprehensible distinctions

between lawful conduct, misdemeanors, and felonics.

With very few well-defined and limited exceptions

for taxpayers in special roles,* the tax felonics

‘There are two types of willful failures to act that

Congress specifically chose to treat as fclonies rather

than misdemeanors: the willful failure of a withholding

agent to collect, account for, and pay over tax, which is a

felony under § 7202, and the willful failure of a person

(cont'd)

24

require willful commission of an affirmative act. See

26 U.S.C. § 7201 (tax evasion), § 7206(1) (filing a

fraudulent return), § 7206(2) (aiding and assisting in

preparation of a false return). The common failures

tu act—failure to pay tax, failure to file a return,

failure to keep records, and failure to supply

information—are all misdemeanors under 26 U.S.C.

§ 7203. When viewed in context, it becomes

apparent that the Government's sweeping

interpretation of § 7212(a) would make it an outlier

in an otherwise cohcrent tax enforcement system

and subvert Congressional intent.

B. Tethering the Residual Clause to an

Existing Proceeding Prevents it from

Subsuming the Other Tax Crimes and

Provides the Nexus Required for Intent

to Obstruct.

Given the care that both Congress and the courts

have devoted to refining uniform, predictable, and

(contd from previous page)

engaged in a trade or business to comply with the

currency transaction reporting requirements, which is a

felony under § 7203. There is also one misdemeanor in

the tax code that does not specifically require willfulness,

but incorporates knowledge of illegality into the intent

standard in a different way. If a person required to

collect, account for, and pay over tax fails to do so, and

receives a hand-dclivered notice of such failure and the

requirement to withhold and pay over additional taxes,

continued failure to comply constitutes a misdemeanor

under § 7215. In each of these situations, the taxpayer

subject to enhanced penaltics has special duties

prescribed by Congress.

25

comprehensible distinctions between lawful conduct,

misdemeanors, and felonies in the tax enforcement

system, Congress could not have intended the

residual clause of § 7212(a) to abrogate that entire

system. On the contrary, § 7212(a) was cnacted

alongside the other specifically-defined tax crimes

and civil penalties in a comprehensive overhaul of

the Internal Revenue Code in 1954. Pub. L. No. 83-

591, 68A Stat. 855. [t is nonsensical! to imagine that

Congress decided in one breath that willful failure to

file tax returns would be a misdemeanor under

§ 7203, and in the next breath that the same conduct

could constitute a felony under § 7212(a).

For § 7212(a) to make any sense at all in the

context of the tax enforcement structure, it must be

a specialized tool to combat interference with an

identifiable enforcement activity as opposed to a

catchall felony that prosecutors could charge as an

alternative or supplement to every one of the

specifically-defined tax crimes. The statute contains

two parallel clauses: one that crimuinalizes

interference with an _ identifiable IRS agent

performing her dutics, and one that criminalizes

interference with an identifiable enforcement action

“in any other way.” There must be a nexus between

the corrupt endeavor undertaken by the defendant

and an identifiable enforcement activity of which the

defendant was aware.

Interpreting other obstruction statutes, this

Court has consistently required a nexus between the

defendant's conduct and a particular proceeding.

Interpreting the predecessor to § 1503, the Court

required the government to prove not just that the

defendunt’s actions hindered law enforcement

26

generally, but that the defendant intended to hinder

a pending judicial proceeding. Pettibone v. United

States, 148 U.S. 197, 206 (1893). As explained by

the Court, “a person is not sufficiently charged with

obstructing or impeding the due administration of

justice in a court unless it appears that he knew or

had notice that justice was being administered in

such court.” /d. The Court subsequently clarified

that requirement im United States v. Aguilar, 515

U.S. 595 (1995), finding that the defendant’s “act

must have a relationship in time, causation, or logic

with the judicial proceedings.” Jd. at 599 (citing

United States v. Wood, 6 F.3d 692 (10th Cir. 1993):

United States v. Walasek, 527 F.2d 676, 679 & n.12

(3d Cir. 1975)). As in Pettibone, the Aguilar court

found that “if the defendant lacks knowledge that his

actions are likely to affect the judicial proceeding, he

lacks the requisite intent to obstruct.” Jd. at 599.

See also Arthur Andensen LLP v. United States, 544

U.S. 696, 708 (2005) (requiring a nexus between

persuasion to destroy documents and a “particular

official proceeding”).

To avoid subsuming the specific tax crimes

Congress enacted simultaneously with § 7212(a),

and to acknowledge that a taxpayer cannot intend to

obstruct tax enforcement activity he knows nothing

about, it is necessary to interpret the residual clause

as applying to a particular enforcement activity of

which the defendant had knowledge at the time of

the allegedly impeding conduct.’

4In Miner, the Sixth Circuit attempted to reconcile its

prior decisions in Kassouf and Bowman, noting that the

(eont'‘d)

27

O

§ 7212(a) Must Require Knowledge of

Illegality and an Affirmative Act.

1. Requiring Knowledge of Illegality

as an Element of a Tax Crime is

Necessary to Preserve Due Process.

This Court has repeatedly recognized that the

complexity of the tax laws justifies a departure from

the mens rea standard that is sufficient for other

crimes. In the seminal case of Cheek v. United

States, 498 U.S. 192 (1991), the Court explained:

The general rule that ignorance of the law

or a mistake of law is no defense to criminal

prosecution is deeply rooted in the American

legal system. Based on the notion that the

law is definite and knowable, the common

law presumed that every person knew the

ees i

(cont'd from previous page)

defendant in Bowman was “attempting to instigate a

frivolous [RS proceeding rather than to impede a

preexisting one.” U/nifed States v. Miner, 774 F.3d 336,

344 (2014). This effort to attempt to reconcile the

decisions would not have been necessary had the

Bowman court instead considered the proper role of

§ 7212(u) in the tax enforcement system; the defendant in

Bowman was convicted of a felony under § 7206(1) for

willfully filing false documents with the IRS, so the

additional charge under § 7212(a) was not necessary to

punish the defendant for the very acts on which the Sixth

Circuit upheld that charge.

28

The proliferation of statutes and

regulations has sometimes made it difficult

for the average citizen to know and

comprehend the extent of the duties and

obligations imposed by the tax laws.

Congress has accordingly softened the

impact of the common-law presumption by

making specific intent to violate the law an

element of certain federal criminal] tax

offenses. Thus, the Court almost 60 years

ago interpreted the statutory term “willfully”

as used in the federal criminal tax statutes

as carving out an exception to the traditional

rule. This special] treatment of criminal tax

offenses is largely due to the complexity of

the tax laws.

Id. at 199-200 (citing United States v. Smith, 5

Wheat. 153, 182 (1820) (Livingston, J., dissenting));

Barlow v. United States, 7 Pet. 404, 411 (1833);

Reynolds v. United States, 98 U.S. 145, 167 (1879);

Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 68

(1910); Lambert v. California, 355 U.S. 225, 228

(1957); Liparota v. United States, 471 U.S. 419, 441

(1985) (White, J., dissenting); and O. Holmes, The

Common Law 47-48 (1881)); see also United States v.

Bishop, 412 U.S. 346, 360-61 (1973) (requiring

knowledge of illegality because “[i]n our complex tax

system, uncertainty often arises even among

taxpayers who earnestly wish to follow the law [and]

it is not the purpose of the law to penalize frank

difference of opinion or innocent errors.” (quoting

Spies v. United States, 317 U.S. 492, 496 (1943))).

The reasons this Court has articulated for

reading the term “willfully” to require knowledge of

29

illegality in the criminal tax context apply equally to

the term “corruptly” in § 7212(a). The lower courts

have expressed reluctance “to add the word ‘willfully’

to section 7212(a), where Congress hus seen fit to

omit it,” United States v. Kelly, 147 F.3d 172, 177 (2d

Cir. 1998), but that misses the point. There is no

statutory definition of “willfully” or “corruptly” in

Title 26. Rather, the understanding that the term

“willfully” connotes a voluntary, intentional violation

of a known legal duty arose out of this Court’s

jurisprudence “due to the complexity of the tax

laws.” Cheek, 498 U.S. at 200. There is nothing in

§ 7212(a) that lessens the complexity of the tax laws

or justifies a departure from this Court's long-

established precedent that a person can only be

guilty of a tax crime if the Government can prove

that the law imposed a duty on the defendant and

the defendant knew of that duty.

As described above, the standard definition of

“corruptly” adopted by the lower courts is to “act

with the intent to gain an unlawful advantage or

benefit cither for oneself or for another.” United

States v. Williamson, 746 F.3d 987, 990 (10th Cir.

2014). No cireuit court has decided whether proof

that the advantage or benefit was unlawful is

sufficient, or whether the Government must prove

that the defendant knew that the advantage or

benefit was unlawful. The Court of Appeals for the

Tenth Circuit has twice elected to avoid the question

of “whether a conviction under § 7212(a) requires

that the defendant knew that the advantage or

benefit sought was unlawful,” Sorensen, 801 F.3d

1217, 1229 (10th Cir. 2015) (quoting Williamson, 746

F.3d 992), finding instead in Williamson that any

30

error in the jury instruction was not “plain,” and in

Sorenson that the enhanced jury instruction given in

that case did incorporate a knowledge of illegality

requirement. Williamson, 746 F.3d at 991-93;

Sorensen, 801 F.3d at 1230 (approving instruction

that to act corruptly, the defendant must have acted

“knowingly and dishonestly, with the specific intent

to gain an unlawful advantage or benefit either for

oneself or for another by subverting or undermining

the due administration of the internal revenue

laws.”); see also United States v. Dean, 487 F.3d 840,

853 (11th Cir. 2007) (noting that the pattern jury

instruction for that circuit includes the “knowingly

and dishonestly” language in the definition of

corruptly); United States v. Saldana, 427 F.3d 298,

303 (5th Cir. 2005); Kelly, 147 F.3d at 176-77.

As it stands, there is no uniformly applied

requirement that the Government prove knowledge

of illegality to convict a defendant of a tax felony

under § 7212(a) even though knowledge of illegality

is required for every other federal tux crime. The

College is concerned that lack of uniformity among

the lower courts in defining a key element of a

federal felony opens the door to abuse of

prosecutorial discretion. The College, therefore,

implores this Court to recognize that § 7212(a)—like

every other tax crime—requires knowledge of

illegality.

31

2. § 7212(a) Should Not be an

Exception to the Rule that Tax

Felonies Require an Affirmative

Act.

Requiring an affirmative act for a violation of

§ 7212(a) is necessary to provide fair notice of what

conduct constitutes a felony. As described above, the

Spies Court distinguished the tax misdemeanors

from felony evasion by finding that use of the word

“attempt” in the felony required an affirmative act.

Spies, 317 U.S. at 498-99. In addition, the Court

found that “it would be unusual and we would not

readily assume that Congress by the felony ...

meant no more than the same derelictions it had just

defined .. . as a misdemeanor.” Id. at 497. This

Court should follow the lead of the Spies Court in

finding that use of the word “endeavor” in § 7212(a)

requires an affirmative act, and that conduct

specifically described as a misdemeanor elsewhere in

the Code is not a corrupt endeavor sufficient to

support a conviction under § 7212(a).

In the decision below, the Second Circuit found

that “an omission may be a means by which a

defendant corruptly obstructs or impedes the due

administration” of the code under § 7212(u). United

States v. Marinello, 839 F.2d 209, 225 (2d Cir. 2016).

To support that conclusion, it explained that “surely

a defendant could be charged under section 7212(a)

for knowingly failing to provide the IRS with

materials that it requests, or, as in Marinello’s case,

for failing to document or provide a _ proper

accounting of business income and expenses.”

Ironically, the court “recognize[d] that the scope of

omissions on which an omnibus clause violation

32

could be based is not limitless,” and then cited

United States v. Wood, 384 F. App’x 698, 708 (10th

Cir. 2010), for the suggestion that “it is a

‘questionable proposition’ that a defendant’s mere

failure to file tax returns could constitute a violation

of the omnibus clause, particularly because the

‘willful failure to file tax returns is addressed in a

different section of the Internal Revenue Code, 26

U.S.C. § 7203.” Marinello, 839 F.3d at 225 n.15.

Congress, however, designated willful failure to

“keep any records, or supply any information” to the

IRS—the exact conduct the Marinello court found

could “surely” be charged as a felony under

§ 7212(a)—a misdemeanor under § 7203.

In Wood, the court found that the defendant

“made a plausible argument” that there was plain

error in the instructions to the jury because: (1) the

willful failure to file tax returns is addressed in a

different section of the Code, (2) the government

“identified no language in the Code suggesting that

the same conduct constituting a violation of § 7203

(a misdemeanor) may also constitute a violation of

§ 7212 (a felony),” and (3) the government provided

no authority supporting the theory that “the failure

to file under § 7203 can constitute[ ] a ‘corrupt[ ]

endeavor” under § 7212. dd. (first alteration added).

The court in Wood, however, did not decide whether

an omission covered by § 7203 could constitute an

endeavor for purposes of § 7212 because it found,

instead, that the defendant was unable to show that

the potential crror was prejudicial when there was

strong evidence that the defendant engaged in the

other means of obstruction charged by the

government. /d. at 709-10.

33

Marinello’s conviction highlights the dangers of

allowing prosecutors to charge omissions as felonies

under § 7212(a). Marinello was charged and

convicted of the misdemeanors he committed. But

the jury was instructed that it could also convict him

of felony obstruction in violation of § 7212{a) “on the

grounds, variously, that Marinello did not keep

adequate records; that, having kept them, he

destroyed them; or that, having kept and preserved

them from destruction, he failed to give them to his

accountant.” United States v. Marinello, 855 F.3d

455, 456 (2d Cir. 2017) (Jacobs, J., dissenting).

Congress defined failure to keep records as a

misdemeanor, but the court below found that failure

alone was sufficicnt for the jury to convict Marinello

of a felony.

Felony obstruction under §7212(a) should

require more than one of the failures to act that

Congress categorized as misdemeanors. If

Congress’s use of the word “attempt” in describing

tax evusion is sufficient to require an affirmative act,

surely the word “endeavor” in § 7212(a) fulfills the

same purpose.

D. Any Broader Reading of § 7212(a)

Threatens to Undermine the Tax

Enforcement System.

Uniformity, predictability, and comprehensibility

are important anchors at the foundation of the tax

enforcement system. As the Department of Justice

has recognized:

The Government helps to preserve the

integrity of this Nation’s self-assessment tax

system through vigorous and uniform criminal!

34

enforcement of the internal revenue laws.

Criminal prosecutions punish tax law violators

and deter other persons who would violate

those laws. To uchieve maximum deterrence,

the Government must pursue broad, balanced,

and uniform criminal tax enforcement.

Uniformity in tax cases is necessary because

tax enforcement potentially affects more

individuals than any other area of criminal]

enforcement. Broad = and balanced

enforcement is essential to effectively deter

persons of varying economic und vocational

status, violators in different geographic areas,

and different types of tax law violations.

U.S. Dep’t of Justice, Criminal Tax Manual § 2.00

(2012), https://www.justice.gov/sites/default/files/tax/

legacy/2015/03/27/CTM%20Chapter%202. pdf

(incorporating U.S. Attorneys’ Manual 6-4.010.)

Effective tax enforcement relics on deterrence, and

deterrence relies on uniform application of

comprehensible distinctions between lawful conduct

and criminal behavior. A broad reading of the

residual clause in § 7212(a) defeats congressional

intent by impeding, rather than promoting,

deterrence.

The Government's sweeping interpretation of

§ 7212(4) criminalizes such a vast array of conduct

that it makes enforcement purely a matter of

prosecutorial whim. By reading out of the statute

any requirement that one be awure of an IRS

proceeding, or that the taxpayer (or his lawycr) have

undertaken a single affirmative act, the decision

below allows prosecutors to look back with hindsight

to identify any past omission that may have had the

35

effect of securing an advantage for the taxpayer, and

use that omission to extend the criminal net. When

prosecutors have such unrestrained authority to

make law through their enforcement choices, the

inevitable result is at least the perception—if not the

reality—of selective, arbitrary prosecution. This

arbitrariness lessens the perceived legitimacy of the

tax laws, and leads to increased violations rather

than compliance. See Todd Haugh, SOX on Fish: A

New Harm of Overcriminalization, 109 NW. U. L.

Rev. Online 152 (2015) (arguing that

overcriminalization increases the commission of

criminal acts because it facilitates the most

prevalent and powerful rationalizations used by

would-be offenders).

The purpose of criminal tax enforcement is to

preserve the integrity of the comprehensive tax

system Congress enacted. A broad reading of

§ 7212(a) thwarts that purpose by impermissibly

shifting the power to define criminal liability to

prosecutors. That shift not only violates the Due

Process clause, but undermines the integrity of the

tax enforcement system.

CONCLUSION

For the foregoing reasons, the College

respectfully encourages the Court to reverse the

judgment of the court of appeals.

36

Respectfully submitted,

ARMANDO GOMEZ JENNY L. JOHNSON

DAVID W. FOSTER Counsel of Record

SKADDEN, ARPS, SLATE, GUINEVERE M. MOORE

MEAGHER & FLOM LLP JOHNSON MoorRE LLC

1440 New York Ave., NW 150 North Wacker Drive

Washington, DC 20005 Suite 1250

202-371-7000 Chicago, 11. 60606

312-549-9990

Jenny johnson@

jmtaxlitigation.com

Attorneys for Amicus Curiae

Dated: September 8, 2017