NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print
goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1144
_________________
CARLO J. MARINELLO, II, PETITIONER
v.
UNITED STATES
on writ of certiorari to the united states
court of appeals for the second circuit
[March 21, 2018]
Justice Breyer delivered the opinion of the
Court.
A clause in §7212(a) of the Internal Revenue
Code makes it a felony “corruptly or by force” to “endeavo[r] to
obstruct or imped[e] the due administration of this title.” 26
U. S. C. §7212(a). The question here concerns the breadth
of that statutory phrase. Does it cover virtually all governmental
efforts to collect taxes? Or does it have a narrower scope? In our
view, “due administration of [the Tax Code]” does not cover routine
administrative procedures that are near-universally applied to all
taxpayers, such as the ordinary processing of income tax returns.
Rather, the clause as a whole refers to specific interference with
targeted governmental tax-related proceedings, such as a particular
investigation or audit.
I
The Internal Revenue Code provision at issue,
§7212(a), has two substantive clauses. The first clause, which we
shall call the “Officer Clause,” forbids
“corruptly or by force or threats of force
(including any threatening letter or communication) endeavor[ing]
to intimidate or impede any
officer or employee of the
United States acting in an official capacity under [the Internal
Revenue Code].”
Ibid. (emphasis added).
The second clause, which we shall call the
“Omnibus Clause,” forbids
“corruptly or by force or threats of force
(including any threatening letter or communication) obstruct[ing]
or imped[ing], or endeavor[ing] to obstruct or impede,
the due
administration of [the Internal Revenue Code].”
Ibid.
(emphasis added).
As we said at the outset, we here consider the
scope of the Omnibus Clause. (We have placed the full text of §7212
in the Appendix,
infra.)
Between 2004 and 2009, the Internal Revenue
Service (IRS) opened, then closed, then reopened an investigation
into the tax activities of Carlo Marinello, the petitioner here. In
2012 the Government indicted Marinello, charging him with
violations of several criminal tax statutes including the Omnibus
Clause. In respect to the Omnibus Clause the Government claimed
that Marinello had engaged in at least one of eight different
specified activities, including “failing to maintain corporate
books and records,” “failing to provide” his tax accountant “with
complete and accurate” tax “information,” “destroying
. . . business records,” “hiding income,” and “paying
employees . . . with cash.” 839 F. 3d 209, 213 (CA2
2016).
Before the jury retired to consider the charges,
the judge instructed it that, to convict Marinello of violating the
Omnibus Clause, it must find unanimously that he engaged in at
least one of the eight practices just mentioned, that the jurors
need not agree on which one, and that he did so “corruptly,”
meaning “with the intent to secure an unlawful advantage or
benefit, either for [himself ] or for another.” App. in No.
15–2224 (CA2), p. 432. The judge, however, did not instruct the
jury that it must find that Marinello knew he was under
investigation and intended corruptly to interfere with that
investigation. The jury subsequently convicted Marinello on all
counts.
Marinello appealed to the Court of Appeals for
the Second Circuit. He argued, among other things, that a violation
of the Omnibus Clause requires the Government to show that the
defendant had tried to interfere with a “pending IRS proceeding,”
such as a particular investigation. Brief for Appellant in No.
15–2224, pp. 23–25. The appeals court disagreed. It held that a
defendant need not possess “ ‘an awareness of a particular
[IRS] action or investigation.’ ” 839 F. 3d, at 221
(quoting
United States v.
Wood, 384 Fed. Appx. 698,
704 (CA2 2010); alteration in original). The full Court of Appeals
rejected Marinello’s petition for rehearing, two judges dissenting.
855 F. 3d 455 (CA2 2017).
Marinello then petitioned for certiorari, asking
us to decide whether the Omnibus Clause requires the Government to
prove the defendant was aware of “a pending IRS action or
proceeding, such as an investigation or audit,” when he “engaged in
the purportedly obstructive conduct.” Pet. for Cert. i. In light of
a division of opinion among the Circuits on this point, we granted
the petition. Compare
United States v.
Kassouf, 144
F. 3d 952 (CA6 1998) (requiring showing of a pending
proceeding), with 839 F. 3d, at 221 (disagreeing with
Kassouf ).
II
In
United States v.
Aguilar, 515
U. S. 593 (1995) , we interpreted a similarly worded criminal
statute. That statute made it a felony “corruptly or by threats or
force, or by any threatening letter or communication, [to]
influenc[e], obstruc[t], or imped[e], or endeavo[r] to influence,
obstruct, or impede, the due administration of justice.” 18
U. S. C. §1503(a). The statute concerned not (as here)
“the due administration of”
the Internal Revenue Code but
rather “the due administration of
justice.” (We have placed
the full text of §1503 in the Appendix,
infra.)
In interpreting that statute we pointed to
earlier cases in which courts had held that the Government must
prove “an intent to influence judicial or grand jury proceedings.”
Aguilar,
supra, at 599 (citing
United States
v.
Brown, 688 F. 2d 596, 598 (CA9 1982)). We noted that
some courts had imposed a “ ‘nexus’ requirement”: that the
defendant’s “act must have a relationship in time, causation, or
logic with the judicial proceedings.”
Aguilar,
supra,
at 599 (citing
United States v.
Wood, 6 F. 3d
692, 696 (CA10 1993), and
United States v.
Walasek,
527 F. 2d 676, 679, and n. 12 (CA3 1975)). And we adopted
the same requirement.
We set forth two important reasons for doing so.
We wrote that we “have 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.’ ”
Aguilar,
supra, at
600 (quoting
McBoyle v.
United States, 283 U. S.
25, 27 (1931) ; citation omitted). Both reasons apply here with
similar strength.
As to Congress’ intent, the literal language of
the statute is neutral. The statutory words “obstruct or impede”
are broad. They can refer to anything that “block[s],” “make[s]
difficult,” or “hinder[s].” Black’s Law Dictionary 1246 (10th ed.
2014) (obstruct); Webster’s New International Dictionary
(Webster’s) 1248 (2d ed. 1954) (impede);
id., at 1682
(obstruct); accord, 5 Oxford English Dictionary 80 (1933) (impede);
7
id., at 36 (obstruct). But the verbs “obstruct” and
“impede” suggest an object—the taxpayer must hinder a particular
person or thing. Here, the object is the “due administration of
this title.” The word “administration” can be read literally to
refer to every “[a]ct or process of administering” including every
act of “managing” or “conduct[ing]” any “office,” or “performing
the executive duties of” any “institution, business, or the like.”
Webster’s 34. But the whole phrase—the due administration of the
Tax Code—is best viewed, like the due administration of justice, as
referring to only some of those acts or to some separable parts of
an institution or business. Cf.
Aguilar,
supra, at
600–601 (concluding false statements made to an investigating
agent, rather than a grand jury, do not support a conviction for
obstruction of justice)
.
Here statutory context confirms that the text
refers to specific, targeted acts of administration. The Omnibus
Clause appears in the middle of a statutory sentence that refers
specifically to efforts to “intimidate or impede
any officer or
employee of the United States acting in an official capacity.”
26 U. S. C. §7212(a) (emphasis added). The first part of
the sentence also refers to “force or threats of force,” which the
statute elsewhere defines as “threats of bodily harm to the
officer or employee of the United States or to a member of his
family.”
Ibid. (emphasis added). The following
subsection refers to the “forcibl[e] rescu[e]” of “any
property after it shall have been seized under” the Internal
Revenue Code. §7212(b) (emphasis added). Subsections (a) and (b)
thus refer to corrupt or forceful actions taken against individual
identifiable persons or property. And, in that context the Omnibus
Clause logically serves as a “catchall” in respect to the
obstructive conduct the subsection sets forth, not as a “catchall”
for every violation that interferes with what the Government
describes as the “continuous, ubiquitous, and universally known”
administration of the Internal Revenue Code. Brief in Opposition
9.
Those who find legislative history helpful can
find confirmation of the more limited scope of the Omnibus Clause
in the House and Senate Reports written when Congress first enacted
the Omnibus Clause. See H. R. Rep. No. 1337, 83d Cong., 2d
Sess. (1954); S. Rep. No. 1622, 83d Cong., 2d Sess. (1954).
According to the House Report, §7212 “provides for the punishment
of threats or threatening acts against
agents of the
Internal Revenue Service, or any other
officer or
employee of the United States, or
members of the families
of such persons, on account of the performance by such agents
or officers or employees of their official duties” and “
will
also punish the corrupt solicitation of an internal revenue
employee.” H. R. Rep. No. 1337, at A426 (emphasis added).
The Senate Report also refers to the section as aimed at targeting
officers and employees. It says that §7212 “covers all cases where
the
officer is intimidated or injured;
that is, where
corruptly, by force or threat of force, directly or by
communication, an attempt is made to impede the administration of
the internal-revenue laws.” S. Rep. No. 1622, at 147 (emphasis
added). We have found nothing in the statute’s history suggesting
that Congress intended the Omnibus Clause as a catchall applicable
to the entire Code including the routine processing of tax returns,
receipt of tax payments, and issuance of tax refunds.
Viewing the Omnibus Clause in the broader
statutory context of the full Internal Revenue Code also counsels
against adopting the Government’s broad reading. That is because
the Code creates numerous misdemeanors, ranging from willful
failure to furnish a required statement to employees, §7204, to
failure to keep required records, §7203, to misrepresenting the
number of exemptions to which an employee is entitled on IRS Form
W–4, §7205, to failure to pay any tax owed, however small the
amount, §7203
. To interpret the Omnibus Clause as applying
to all Code administration would potentially transform many, if not
all, of these misdemeanor provisions into felonies, making the
specific provisions redundant, or perhaps the subject matter of
plea bargaining. Some overlap in criminal provisions is, of course,
inevitable. See,
e.g., Sansone v.
United States, 380
U. S. 343, 349 (1965) (affirming conviction for tax evasion
despite overlap with other provisions). Indeed, as the dissent
notes,
post, at 8 (opinion of Thomas, J.), Marinello’s
preferred reading of §7212 potentially overlaps with another
provision of federal law that criminalizes the obstruction of the
“due and proper administration of the law under which any pending
proceeding is being had before any department or agency of the
United States,” 18 U. S. C. §1505. But we have not found
any case from this Court interpreting a statutory provision that
would create overlap and redundancy to the degree that would result
from the Government’s broad reading of §7212—particularly when it
would “ ‘render superfluous other provisions in the same
enactment.’ ”
Freytag v.
Commissioner, 501
U. S. 868, 877 (1991) (quoting
Pennsylvania Dept. of Public
Welfare v.
Davenport, 495 U. S. 552, 562 (1990) ;
see also
Yates v.
United States, 574 U. S. ___,
___ (2015) (plurality opinion) (slip op., at 13).
A broad interpretation would also risk the lack
of fair warning and related kinds of unfairness that led this Court
in
Aguilar to “exercise” interpretive “restraint.” See 515
U. S., at 600; see also
Yates,
supra, at ___–___
(slip op., at 18–19);
Arthur Andersen LLP v.
United
States, 544 U. S. 696 –704 (2005). Interpreted broadly,
the provision could apply to a person who pays a babysitter $41 per
week in cash without withholding taxes, see 26 CFR
§31.3102–1(a)(2017); IRS, Publication 926, pp. 5–6 (2018), leaves a
large cash tip in a restaurant, fails to keep donation receipts
from every charity to which he or she contributes, or fails to
provide every record to an accountant. Such an individual may
sometimes believe that, in doing so, he is running the risk of
having violated an IRS rule, but we sincerely doubt he would
believe he is facing a potential felony prosecution for tax
obstruction. Had Congress intended that outcome, it would have
spoken with more clarity than it did in §7212(a).
The Government argues that the need to show the
defendant’s obstructive conduct was done “corruptly” will cure any
overbreadth problem. But we do not see how. The Government asserts
that “corruptly” means acting with “the specific intent to obtain
an unlawful advantage” for the defendant or another. See Tr. of
Oral Arg. 37; accord, 839 F. 3d, at 218. Yet, practically
speaking, we struggle to imagine a scenario where a taxpayer would
“willfully” violate the Tax Code (the
mens rea requirement
of various tax crimes, including misdemeanors, see,
e.g., 26
U. S. C. §§7203, 7204, 7207) without intending someone to
obtain an unlawful advantage. See
Cheek v.
United
States, 498 U. S. 192, 201 (1991) (“Willfulness
. . . requires the Government to prove that the law
imposed a duty on the defendant, that the defendant knew of this
duty, and that he voluntarily and intentionally violated that
duty”) A taxpayer may know with a fair degree of certainty that her
babysitter will not declare a cash payment as income—and, if so, a
jury could readily find that the taxpayer acted to obtain an
unlawful benefit for another. For the same reason, we find
unconvincing the dissent’s argument that the distinction between
“willfully” and “corruptly”—at least as defined by the
Government—reflects any meaningful difference in culpability. See
post, at 6–7.
Neither can we rely upon prosecutorial
discretion to narrow the statute’s scope. True, the Government used
the Omnibus Clause only sparingly during the first few decades
after its enactment. But it used the clause more often after the
early 1990’s. Brief for Petitioner 9. And, at oral argument the
Government told us that, where more punitive and less punitive
criminal provisions both apply to a defendant’s conduct, the
Government will charge a violation of the more punitive provision
as long as it can readily prove that violation at trial. Tr. of
Oral Arg. 46–47, 55–57; see Office of the Attorney General,
Department Charging and Sentencing Policy (May 10, 2017), online at
http://www.justice.gov/opa/press-release/ file/965896/download (as
last visited Mar. 16, 2018).
Regardless, to rely upon prosecutorial
discretion 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,”
Smith v.
Goguen, 415 U. S. 566,
575 (1974) , which could result in the nonuniform execution of that
power across time and geographic location. And insofar as the
public fears arbitrary prosecution, it risks undermining necessary
confidence in the criminal justice system. That is one reason why
we have said that we “cannot construe a criminal statute on the
assumption that the Government will ‘use it responsibly.’ ”
McDonnell v.
United States, 579 U. S. ___, ___
(2016) (slip op., at 23) (quoting
United States v.
Stevens, 559 U. S. 460, 480 (2010) ). And it is why
“[w]e have traditionally exercised restraint in assessing the reach
of a federal criminal statute.”
Aguilar,
supra, at
600.
III
In sum, we follow the approach we have taken
in similar cases in interpreting §7212(a)’s Omnibus Clause. To be
sure, the language and history of the provision at issue here
differ somewhat from that of other obstruction provisions we have
considered in the past. See
Aguilar, supra (interpreting a
statute prohibiting the obstruction of “the due administration of
justice”);
Arthur Andersen,
supra (interpreting a
statute prohibiting the destruction of an object with intent to
impair its integrity or availability for use in an official
proceeding);
Yates, supra (interpreting a statute
prohibiting the destruction, concealment, or covering up of any
“record, document, or tangible object with the intent to” obstruct
the “investigation or proper administration of any matter within
the jurisdiction of any department or agency of the United
States”). The Government and the dissent urge us to ignore these
precedents because of those differences. The dissent points out,
for example, that the predecessor to the obstruction statute we
interpreted in
Aguilar, 18 U. S. C. §1503,
prohibited influencing, intimidating, or impeding “any witness or
officer in any court of the United States” or endeavoring “to
obstruct or imped[e] the due administration of justice
therein.”
Pettibone v.
United States, 148
U. S. 197, 202 (1893) (citing Rev. Stat. §5399; emphasis
added); see
post, at 9. But Congress subsequently deleted
the word “therein,” leaving only a broadly worded prohibition
against obstruction of “the due administration of justice.” Act of
June 25, 1948, §1503, 62Stat. 769–770. Congress then used that same
amended formulation when it enacted §7212, prohibiting the
“obstruction of the due administration” of the Tax Code. Internal
Revenue Code of 1954, 68A Stat. 855. Given this similarity, it is
helpful to consider how we have interpreted §1503 and other
obstruction statutes in considering §7212. The language of some and
the underlying principles of all these cases are similar. We
consequently find these precedents—though not controlling—highly
instructive for use as a guide toward a proper resolution of the
issue now before us. See
Smith v.
City of Jackson,
544 U. S. 228, 233 (2005) .
We conclude 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. That nexus requires
a “relationship in time, causation, or logic with the
[administrative] proceeding.”
Aguilar, 515 U. S., at
599 (citing
Wood, 6 F. 3d, at 696). By “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. Brief in
Opposition 9. While we need not here exhaustively itemize the types
of administrative 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. The Government contends the processing of tax
returns is part of the administration of the Internal Revenue Code
and any corrupt effort to interfere with that task can therefore
serve as the basis of an obstruction conviction. But the same could
have been said of the defendant’s effort to mislead the
investigating agent in
Aguilar. The agent’s investigation
was, at least in some broad sense, a part of the administration of
justice. But we nevertheless held the defendant’s conduct did not
support an obstruction charge. 515 U. S., at 600. In light of
our decision in
Aguilar, we find it appropriate to construe
§7212’s Omnibus Clause more narrowly than the Government proposes.
Just because a taxpayer knows that the IRS will review her tax
return every year does not transform every violation of the Tax
Code into an obstruction charge.
In addition to satisfying this nexus
requirement, the Government must 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. See
Arthur Andersen, 544 U. S.
, at
703, 707–708 (requiring the Government to prove a proceeding was
foreseeable in order to convict a defendant for persuading others
to shred documents to prevent their “use in an official
proceeding”). It is not enough for the Government to claim that the
defendant knew the IRS may catch on to his unlawful scheme
eventually. To use a maritime analogy, the proceeding must at least
be in the offing.
For these reasons, the Second Circuit’s judgment
is reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
APPENDIX
26 U. S. C. §7212: “Attempts to
interfere with administration of internal revenue laws
“(a) Corrupt or forcible interference
“Whoever corruptly or by force or threats of
force (including any threatening letter or communication) endeavors
to intimidate or impede any officer or employee of the United
States acting in an official capacity under this title, or in any
other way corruptly or by force or threats of force (including any
threatening letter or communication) obstructs or impedes, or
endeavors to obstruct or impede, the due administration of this
title, shall, upon conviction thereof, be fined not more than
$5,000, or imprisoned not more than 3 years, or both, except that
if the offense is committed only by threats of force, the person
convicted thereof shall be fined not more than $3,000, or
imprisoned not more than 1 year, or both. The term ‘threats of
force’, as used in this subsection, means threats of bodily harm to
the officer or employee of the United States or to a member of his
family.
“(b) Forcible rescue of seized
property
“Any person who forcibly rescues or causes to be
rescued any property after it shall have been seized under this
title, or shall attempt or endeavor so to do, shall, excepting in
cases otherwise provided for, for every such offense, be fined not
more than $500, or not more than double the value of the property
so rescued, whichever is the greater, or be imprisoned not more
than 2 years.”
18 U. S. C. §1503: “Influencing or
injuring officer or juror generally
“(a) Whoever corruptly, or by threats or force,
or by any threatening letter or communication, endeavors to
influence, intimidate, or impede any grand or petit juror, or
officer in or of any court of the United States, or officer who may
be serving at any examination or other proceeding before any United
States magistrate judge or other committing magistrate, in the
discharge of his duty, or injures any such grand or petit juror in
his person or property on account of any verdict or indictment
assented to by him, or on account of his being or having been such
juror, or injures any such officer, magistrate judge, or other
committing magistrate in his person or property on account of the
performance of his official duties, or corruptly or by threats or
force, or by any threatening letter or communication, influences,
obstructs, or impedes, or endeavors to influence, obstruct, or
impede, the due administration of justice, shall be punished as
provided in subsection (b). If the offense under this section
occurs in connection with a trial of a criminal case, and the act
in violation of this section involves the threat of physical force
or physical force, the maximum term of imprisonment which may be
imposed for the offense shall be the higher of that otherwise
provided by law or the maximum term that could have been imposed
for any offense charged in such case.
“(b) The punishment for an offense under this
section is—
“(1) in the case of a killing, the punishment
provided in sections 1111 and 1112;
“(2) in the case of an attempted killing, or a
case in which the offense was committed against a petit juror and
in which a class A or B felony was charged, imprisonment for not
more than 20 years, a fine under this title, or both; and
“(3) in any other case, imprisonment for not
more than 10 years, a fine under this title, or both.”