Yesterday the Second Circuit issued an order denying rehearing en banc in United States v. Marinello, No. 15-224, after an active judge of the Court had requested a poll as to whether the case should be reheard by the full Court. Two judges (Jacobs and Cabranes) dissented from the denial of rehearing en banc. Writing for the dissenters, Judge Jacobs wrote that the panel decision placed the Second Circuit “on the wrong side of a circuit split” by affirming a conviction based on “the most vague of residual clauses,” and that in doing so the Court had paved the way for “prosecutorial abuse.”
Marinello involved the prosecution of a defendant for various violations of the tax code based on the defendant’s failure between 1992 and 2010 to keep corporate books and records for his business and to file personal and corporate tax returns. Marinello was convicted at trial on nine counts, and eight of those counts raised no issues according to Judge Jacobs’s dissent from en banc rehearing. The dissent was troubled, however, by the count of conviction under the so-called omnibus clause of 26 U.S.C. § 7212(a). This clause 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 [i.e., the Internal Revenue Code].” The government had charged Marinello with violating this clause in eight different ways (e.g., failing to maintain corporate records, destroying corporate records, and paying employees with cash) and at trial the jury was instructed that it could convict Marinello under the omnibus clause as long as each juror determined that Marinello had violated the statute in any one of those ways.
The district court rejected Marinello’s argument that, consistent with the Sixth Circuit’s interpretation of Section 7212(a)’s omnibus clause in United States v. Kassouf, 144 F.3d 952 (6th Cir. 1998), conviction under Section 7212(a) required a finding that Marinello had knowingly interfered with a pending IRS investigation. Kassouf relied on an analogy to 18 U.S.C. § 1503, which prohibits obstruction of a judicial or grand jury proceeding; although Section 1503 is worded broadly, the Supreme Court has imposed a requirement that there be a nexus between the defendant’s misconduct and the judicial or grand jury proceeding. See United States v. Aguilar, 515 U.S. 593, 599 (1995). Based on differences between the text of the two statutes, the phrasing of the prohibition, and the legislative history, the Second Circuit’s panel decision (written by Judge Sack, with Judge Pooler and District Judge Failla in agreement) rejected the analogy to Section 1503 and affirmed the conviction. United States v. Marinello, 839 F.3d 209 (2d Cir. 2016).
Judge Jacobs’s dissent argued that the panel decision in Marinello erred in not adopting the limiting construction on Section 7212(a) that...
