For the Defense - Vol. 3, Issue 2 - 2018 - 32
to narrow the otherwise wide-ranging scope
of a criminal statute's highly abstract general
statutory language places great power in the
hands of the prosecutor. Doing so risks allowing
'policemen, prosecutors, and juries to pursue
their personal predilections,' which could result
in the nonuniform execution of that power across
time and geographic location."16
The Court therefore held that, "to secure
a conviction under the Omnibus Clause, the
Government must show (among other things)
that there is a 'nexus' between the defendant's
conduct and a particular administrative
proceeding, such as an investigation, an audit,
or other targeted administrative action."17 The
Court then clarified that
[b]y 'particular administrative proceeding'
we do not mean every act carried out
by IRS employees in the course of their
'continuous, ubiquitous, and universally
known' administration of the Tax Code.
While we need not here exhaustively
itemize the types of administrative
Practice dedicated to state and federal criminal defense.
conduct that fall within the scope of the
statute, that conduct does not include
routine, day-to-day work carried out in
the ordinary course by the IRS, such as the
review of tax returns.18
The Court further required the government to
"show that the proceeding was pending at the
time the defendant engaged in the obstructive
conduct or, at the least, was then reasonably
foreseeable by the defendant."19
In a dissenting opinion joined by Justice Alito,
Justice Thomas agreed with the Second Circuit's
conclusion regarding the inapplicability of Aguilar
and took on the majority's holding that the
phrase "due administration of this title" referred
only to pending investigations. He observed
that the '"administration' of the Tax Code
includes four basic steps: information gathering,
assessment, levy, and collection." Limiting the
Omnibus Clause to active proceedings, argued
Justice Thomas, ignores the vast number of other
tasks necessary for the IRS to carry out its mission,
and therefore fails to give effect to the statutory
text.21
Putting a finer point on the matter, Justice
Thomas went on to criticize the majority's view
that its decision provided taxpayers with '"fair
warning' of what [the Omnibus Clause] prohibits,"
accused the majority of providing its purported
clarity "in only the vaguest of terms."22 Justice
Thomas criticized the "nexus" and "reasonable
foreseeability" requirements as being "defined
negatively," rather than prospectively explaining
to taxpayers what they could or could not do.23
As such, Justice Thomas concluded that "[t]he
Court, in its effort to exclude hypotheticals, has
constructed an opening in the Omnibus Clause
large enough that even the worst offenders can
escape liability."24
105 South High Street, Suite 2A
West Chester, PA 19382
Marinello's Impact
Law Offices of
Heather J. Mattes
Office:
Mobile:
Facsimile:
Email:
32
610.431.7900
610.585.0463
484.244.5077
hjm@hjmattes.com
For The Defense
l
Vol. 3, Issue 2
As Judge Jacobs observed, it is the rare
defendant who could be charged with obstructing
an IRS investigation and would not also be
liable for some substantive tax offense.25 The
government's pre-Marinello approach to the
Omnibus Clause allowed it to bootstrap a
misdemeanor violation into a felony obstruction
Table of Contents for the Digital Edition of For the Defense - Vol. 3, Issue 2 - 2018
Contents
For the Defense - Vol. 3, Issue 2 - 2018 - 1
For the Defense - Vol. 3, Issue 2 - 2018 - 2
For the Defense - Vol. 3, Issue 2 - 2018 - Contents
For the Defense - Vol. 3, Issue 2 - 2018 - 4
For the Defense - Vol. 3, Issue 2 - 2018 - 5
For the Defense - Vol. 3, Issue 2 - 2018 - 6
For the Defense - Vol. 3, Issue 2 - 2018 - 7
For the Defense - Vol. 3, Issue 2 - 2018 - 8
For the Defense - Vol. 3, Issue 2 - 2018 - 9
For the Defense - Vol. 3, Issue 2 - 2018 - 10
For the Defense - Vol. 3, Issue 2 - 2018 - 11
For the Defense - Vol. 3, Issue 2 - 2018 - 12
For the Defense - Vol. 3, Issue 2 - 2018 - 13
For the Defense - Vol. 3, Issue 2 - 2018 - 14
For the Defense - Vol. 3, Issue 2 - 2018 - 15
For the Defense - Vol. 3, Issue 2 - 2018 - 16
For the Defense - Vol. 3, Issue 2 - 2018 - 17
For the Defense - Vol. 3, Issue 2 - 2018 - 18
For the Defense - Vol. 3, Issue 2 - 2018 - 19
For the Defense - Vol. 3, Issue 2 - 2018 - 20
For the Defense - Vol. 3, Issue 2 - 2018 - 21
For the Defense - Vol. 3, Issue 2 - 2018 - 22
For the Defense - Vol. 3, Issue 2 - 2018 - 23
For the Defense - Vol. 3, Issue 2 - 2018 - 24
For the Defense - Vol. 3, Issue 2 - 2018 - 25
For the Defense - Vol. 3, Issue 2 - 2018 - 26
For the Defense - Vol. 3, Issue 2 - 2018 - 27
For the Defense - Vol. 3, Issue 2 - 2018 - 28
For the Defense - Vol. 3, Issue 2 - 2018 - 29
For the Defense - Vol. 3, Issue 2 - 2018 - 30
For the Defense - Vol. 3, Issue 2 - 2018 - 31
For the Defense - Vol. 3, Issue 2 - 2018 - 32
For the Defense - Vol. 3, Issue 2 - 2018 - 33
For the Defense - Vol. 3, Issue 2 - 2018 - 34
For the Defense - Vol. 3, Issue 2 - 2018 - 35
For the Defense - Vol. 3, Issue 2 - 2018 - 36
For the Defense - Vol. 3, Issue 2 - 2018 - 37
For the Defense - Vol. 3, Issue 2 - 2018 - 38
For the Defense - Vol. 3, Issue 2 - 2018 - 39
For the Defense - Vol. 3, Issue 2 - 2018 - 40
For the Defense - Vol. 3, Issue 2 - 2018 - 41
For the Defense - Vol. 3, Issue 2 - 2018 - 42
For the Defense - Vol. 3, Issue 2 - 2018 - 43
For the Defense - Vol. 3, Issue 2 - 2018 - 44
For the Defense - Vol. 3, Issue 2 - 2018 - 45
For the Defense - Vol. 3, Issue 2 - 2018 - 46
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol8_issue4_2023
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol8_issue3_2023
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol8_issue2_2023
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol8_issue1_2023
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue4_2022
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue3_2022
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue2_2022
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue1_2022
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue4_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue3_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue2_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue1_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue4_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue3_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue2_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue1_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue4_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue3_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue2_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue1_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue4_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue3_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue2_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue1_2018
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue4_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue3_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue2_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue1_2017
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue4_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue3_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue2_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue1_2016
https://www.nxtbookmedia.com