United States v. Marinello
855 F.3d 455
| 2d Cir. | 2017Background
- Defendant Marinello was convicted on nine counts; eight counts for willful failure to file tax returns raised no dispute, the ninth charged violation of 26 U.S.C. § 7212(a) (the omnibus clause).
- The government charged Marinello with obstructing the administration of the Internal Revenue Code in eight alternative ways (e.g., failing to keep corporate books, destroying records, not providing records to an accountant, cashing checks, paying employees in cash).
- The jury was instructed that conviction could rest on any one of those theories and jurors need not agree on which theory.
- Marinello moved for a new trial arguing § 7212(a) requires knowledge of a pending IRS investigation; district court denied relief and the panel affirmed, holding the statute is not limited to obstruction of a proceeding of which the defendant was aware.
- Judge Dennis Jacobs (joined by Judge José A. Cabranes) dissented from denial of rehearing en banc, arguing the panel’s broad reading creates vagueness/overbreadth and invites prosecutorial abuse and that the statute should be read to require a nexus to an ongoing IRS action known to the defendant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of § 7212(a) omnibus clause: does it require knowledge of a pending IRS investigation or proceeding? | Marinello: omnibus clause requires nexus to an ongoing IRS action and defendant's knowledge of it. | Government: clause covers obstruction of the ‘‘due administration of this title’’ generally, not limited to a known investigation. | Panel held no knowledge/ongoing-investigation requirement; omnibus clause is not limited to pending IRS actions. |
| Proper jury unanimity when multiple alternative theories are charged | Marinello: conviction invalid if jurors convicted on different, non-agreed theories under a single count. | Government: alternative theories permissible; conviction may rest on any one theory without juror agreement on which. | Panel affirmed that conviction may rest on any single charged theory and unanimity among jurors as to the precise theory was not required. |
| Vagueness/overbreadth and risk of prosecutorial abuse under § 7212(a) | Marinello: broad reading yields vague criminal exposure (e.g., ordinary recordkeeping choices) and invites abuse; statute should be cabined. | Government/Panel: context and statutory text support a broad interpretation; no need to narrow. | Dissent argues statute is unconstitutionally vague as applied and that en banc review was warranted to address constitutional limits; panel did not accept this. |
| Interpretation of § 7212(a) in context (individual officer/employee nexus) | Marinello: text and legislative history tie the clause to impeding particular IRS officers/employees and ongoing matters. | Panel: distinguished Aguilar and read the clause more broadly without requiring a specific officer/proceeding nexus. | Dissent concludes contextual reading supports a requirement of an identifiable officer or ongoing investigation; panel rejected that constraint. |
Key Cases Cited
- United States v. Aguilar, 515 U.S. 593 (requiring nexus to grand jury or judicial proceeding to constrain a broadly worded obstruction clause)
- Arthur Andersen LLP v. United States, 544 U.S. 696 (construing knowledge element to limit scope of document-destruction statute)
- Skilling v. United States, 561 U.S. 358 (narrowing honest-services fraud for fair notice)
- Yates v. United States, 574 U.S. 528 (applying rule of lenity to limit scope of criminal statute defining tangible object)
- Johnson v. United States, 576 U.S. 591 (holding an overbroad residual clause unconstitutionally vague)
- McDonnell v. United States, 579 U.S. 550 (rejecting expansive definition of "official act" in public-corruption law)
- United States v. Kassouf, 144 F.3d 952 (6th Cir. limiting § 7212(a) to cases involving known IRS actions)
- United States v. Miner, 774 F.3d 336 (6th Cir. reaffirming requirement of knowledge of pending IRS action)
- United States v. Marinello, 839 F.3d 190 (2d Cir. panel opinion under review; held § 7212(a) not limited to known investigations)