For the Defense - Vol. 3, Issue 2 - 2018 - 30

Pooler and Southern District Judge Katherine
Polk Failla, sitting by designation, rejected both
arguments and affirmed the conviction in its
entirety.3
The court first found that the Omnibus Clause
could be violated in the absence of an IRS
investigation or proceeding. In this regard, the
Second Circuit declined to follow United States v.
Kassouf,4 in which the Sixth Circuit interpreted the
Omnibus Clause narrowly in light of the Supreme
Court's restrictive reading of another federal
obstruction statute (18 U.S.C. § 1503) in United
States v. Aguilar.5 While Kassouf relied on Aguilar
in concluding that section 7212(a) required
both a nexus between the defendant's conduct
and a pending investigation, and proof that
the defendant was aware of that investigation,
the Second Circuit concluded that Aguilar was
inapposite.
In this regard, the Second Circuit noted
that unlike section 1503, which criminalizes
obstruction of the "due administration of

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justice," the "plain language of section 7212(a)'s
omnibus clause 'prohibits any effort to obstruct
the administration of the tax code, not merely
investigations and proceedings conducted by
tax authorities.'"6 Given its conclusion that the
IRS's administration of the tax code extends to
conduct predating the filing of any return, the
Second Circuit rejected Marinello's argument
that a conviction under section 7212(a) requires
a showing that the defendant was aware of a
pending IRS investigation or proceeding.
The court also rejected both Marinello's
vagueness or overbreadth challenge and his
claim that a violation of the Omnibus Clause
required proof that the defendant engaged in
an affirmative act. With respect to the former
argument, the panel held that the requirement
that the defendant acted "corruptly," which
encompasses any conduct that is intended to
"secure an unlawful advantage or benefit either
for one's self or for another," was sufficient
to alleviate any vagueness concerns.7 As for
Marinello's latter argument, the court concluded
that a defendant could not escape liability merely
because he delayed the IRS in the administration
of its duties through a corrupt omission.8
On October 26, 2016, Marinello petitioned the
Second Circuit for rehearing and rehearing en
banc. Over the strong dissent of Judge Dennis
Jacobs (joined by Judge José Cabranes), the court
denied the petition. Importantly, Judge Jacobs
expressed reservations regarding both the panel's
statutory interpretation and its implications
for prosecutorial power.9 Citing Aguilar and
other recent cases, Judge Jacobs noted that
"[i]ncreasingly, the Supreme Court casts a cold eye
on broad residual criminal statutes (particularly
omnibus clauses like the one here), and has saved
such statutes [only] by construing the statutory
text to cabin them."
Nor was Judge Jacobs comforted by the
requirement that the government prove that the
defendant acted corruptly:
Any such comfort is surely an illusion, for
two reasons. First, the risk of wrongful
conviction, even with a mens rea
requirement, is real: the line between
aggressive tax avoidance and "corrupt"
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