Marinello v. United States

(Slip Opinion) OCTOBER TERM, 2017 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MARINELLO v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 16–1144. Argued December 6, 2017—Decided March 21, 2018
Between 2004 and 2009, the Internal Revenue Service (IRS) intermit-
tently investigated petitioner Marinello’s tax activities. In 2012, the
Government indicted Marinello for violating, among other criminal
tax statutes, a provision in 26 U.S. C. §7212(a) known as the Omni-
bus Clause, which forbids “corruptly or by force or threats of force . . .
obstruct[ing] or imped[ing], or endeavor[ing] to obstruct or impede,
the due administration of [the Internal Revenue Code].” The judge
instructed the jury that, to convict Marinello of an Omnibus Clause
violation, it must find that he “corruptly” engaged in at least one of
eight specified activities, but the jury was not told that it needed to
find that Marinello knew he was under investigation and intended
corruptly to interfere with that investigation. Marinello was convict-
ed. The Second Circuit affirmed, rejecting his claim that an Omnibus
Clause violation requires the Government to show the defendant
tried to interfere with a pending IRS proceeding, such as a particular
investigation.
Held: To convict a defendant under the Omnibus Clause, the Govern-
ment must prove the defendant was aware of a pending tax-related
proceeding, such as a particular investigation or audit, or could rea-
sonably foresee that such a proceeding would commence. Pp. 3–11.
(a) In United States v. Aguilar, 515 U.S. 593, this Court interpret-
ed a similarly worded criminal statute—which made it a felony “cor-
ruptly or by threats or force . . . [to] influenc[e], obstruc[t], or
imped[e], or endeavo[r] to influence, obstruct, or impede, the due ad-
ministration of justice,” 18 U.S. C. §1503(a). There, the Court re-
quired the Government to show there was a “nexus” between the de-
fendant’s obstructive conduct and a particular judicial proceeding.
The Court said that the defendant’s “act must have a relationship in
2 MARINELLO v. UNITED STATES
Syllabus
time, causation, or logic with the judicial proceedings.” 515 U.S., at
599. In reaching this conclusion, the Court emphasized that it has
“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.’ ” Id., at 600. That reasoning
applies here with similar strength. The verbs “obstruct” and “im-
pede” require an object. The taxpayer must hinder a particular per-
son or thing. The object in §7212(a) is the “due administration of [the
Tax Code].” That phrase is best viewed, like the “due administration
of justice” in Aguilar, as referring to discrete targeted administrative
acts rather than every conceivable task involved in the Tax Code’s
administration. Statutory context confirms this reading. The Omni-
bus Clause appears in the middle of a sentence that refers to efforts
to “intimidate or impede any officer or employee of the United States
acting in an official capacity.” §7212(a). The first part of the sen-
tence also refers to “force or threats of force,” which the statute else-
where defines as “threats of bodily harm to the officer or employee of
the United States or to a member of his family.” Ibid. And §7212(b)
refers to the “forcibl[e] rescu[e]” of “any property after it shall have
been seized under” the Internal Revenue Code. Subsections (a) and
(b) thus refer to corrupt or forceful actions taken against individual
identifiable persons or property. In context, the Omnibus Clause log-
ically serves as a “catchall” for the obstructive conduct the subsection
sets forth, not for every violation that interferes with routine admin-
istrative procedures such as the processing of tax returns, receipt of
tax payments, or issuance of tax refunds. The statute’s legislative
history does not suggest otherwise. The broader context of the full
Internal Revenue Code also counsels against a broad reading. Inter-
preting the Omnibus Clause to apply to all Code administration could
transform the Code’s numerous misdemeanor provisions into felonies,
making them redundant or perhaps the subject matter of plea bar-
gaining. It could also result in a similar lack of fair warning and re-
lated kinds of unfairness that led this Court to “exercise” interpretive
“restraint” in Aguilar. See 515 U.S., at 600. The Government claims
that the “corrupt state of mind” requirement will cure any over-
breadth problem, but it is difficult to imagine a scenario when that
requirement will make a practical difference in the context of federal
tax prosecutions. And to rely on prosecutorial discretion to narrow
the otherwise wide-ranging scope of a criminal statute’s general lan-
guage places too much power in the prosecutor’s hands. Pp. 3–9.
(b) Following the same approach taken in similar cases, the Gov-
ernment here must show that there is a “nexus” between the defend-
Cite as: 584 U. S. ____ (2018) 3
Syllabus
ant’s conduct and a particular administrative proceeding, such as an
investigation, an audit, or other targeted administrative action. See
Aguilar, supra, at 599. The term “particular administrative proceed-
ing” does not mean every act carried out by IRS employees in the
course of their administration of the Tax Code. Just because a tax-
payer knows that the IRS will review her tax return annually does
not transform every Tax Code violation into an obstruction charge.
In addition to satisfying the nexus requirement, the Government
must show that the proceeding was pending at the time the defend-
ant engaged in the obstructive conduct or, at the least, was then rea-
sonably foreseeable by the defendant. See Arthur Andersen LLP v.
United States, 544 U.S. 696, 703, 707–708. Pp. 9–11.
839 F.3d 209, reversed and remanded.
BREYER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, GINSBURG, SOTOMAYOR, KAGAN, and GORSUCH, JJ.,
joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J.,
joined.
Cite as: 584 U. S. ____ (2018) 1
Opinion of the Court
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preliminary print of the United States Reports. Readers are requested to
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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 proce-
dures 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
2 MARINELLO v. UNITED STATES
Opinion of the Court
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, charg-
ing him with violations of several criminal tax statutes
including the Omnibus Clause. In respect to the Omnibus
Clause the Government claimed that Marinello had en-
gaged in at least one of eight different specified activities,
including “failing to maintain corporate books and rec-
ords,” “failing to provide” his tax accountant “with com-
plete 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 en-
gaged 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
Cite as: 584 U. S. ____ (2018) 3
Opinion of the Court
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 investiga-
tion. 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 Govern-
ment 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) (re-
quiring 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] influ-
enc[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
4 MARINELLO v. UNITED STATES
Opinion of the Court
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 stat-
ute 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 Interna-
tional 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 “admin-
istration” can be read literally to refer to every “[a]ct or
process of administering” including every act of “manag-
Cite as: 584 U. S. ____ (2018) 5
Opinion of the Court
ing” 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 administra-
tion of the Tax Code—is best viewed, like the due admin-
istration 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 state-
ments 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 logi-
cally 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 con-
firmation 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.
6 MARINELLO v. UNITED STATES
Opinion of the Court
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 threaten-
ing 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 (empha-
sis 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, rang-
ing 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 crimi-
nal provisions is, of course, inevitable. See, e.g., Sansone
Cite as: 584 U. S. ____ (2018) 7
Opinion of the Court
v. United States, 380 U.S. 343, 349 (1965) (affirming
conviction for tax evasion despite overlap with other pro-
visions). Indeed, as the dissent notes, post, at 8 (opinion of
THOMAS, J.), Marinello’s preferred reading of §7212 poten-
tially overlaps with another provision of federal law that
criminalizes the obstruction of the “due and proper admin-
istration 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 Pennsyl-
vania 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, 703–704 (2005). Interpreted broadly, the provi-
sion 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 dona-
tion receipts from every charity to which he or she con-
tributes, 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).
8 MARINELLO v. UNITED STATES
Opinion of the Court
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 in-
come—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 mean-
ingful 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,
Cite as: 584 U. S. ____ (2018) 9
Opinion of the Court
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 loca-
tion. 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 stat-
ute.” 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 provi-
sions 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 cover-
ing up of any “record, document, or tangible object with
the intent to” obstruct the “investigation or proper admin-
istration of any matter within the jurisdiction of any
10 MARINELLO v. UNITED STATES
Opinion of the Court
department or agency of the United States”). The Gov-
ernment and the dissent urge us to ignore these prece-
dents because of those differences. The dissent points out,
for example, that the predecessor to the obstruction stat-
ute 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 “there-
in,” leaving only a broadly worded prohibition against
obstruction of “the due administration of justice.” Act of
June 25, 1948, §1503, 62 Stat. 769–770. Congress then
used that same amended formulation when it enacted
§7212, prohibiting the “obstruction of the due administra-
tion” 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 con-
trolling—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 defend-
ant’s conduct and a particular administrative proceeding,
such as an investigation, an audit, or other targeted ad-
ministrative action. That nexus requires a “relationship
in time, causation, or logic with the [administrative] pro-
ceeding.” 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
Cite as: 584 U. S. ____ (2018) 11
Opinion of the Court
known” administration of the Tax Code. Brief in Opposi-
tion 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 con-
tends the processing of tax returns is part of the admin-
istration 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 admin-
istration of justice. But we nevertheless held the defend-
ant’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 per-
suading others to shred documents to prevent their “use in
an official proceeding”). It is not enough for the Govern-
ment 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.
12 MARINELLO v. UNITED STATES
Opinion
Appendix of the of
to opinion Court
the Court
APPENDIX
26 U.S. C. §7212: “Attempts to interfere with admin-
istration of internal revenue laws
“(a) Corrupt or forcible interference
“Whoever corruptly or by force or threats of force (in-
cluding any threatening letter or communication) endeav-
ors 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) ob-
structs 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 mem-
ber 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
Cite as: 584 U. S. ____ (2018) 13
Opinion
Appendix of the of
to opinion Court
the Court
threatening letter or communication, endeavors to influ-
ence, 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 proceed-
ing 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 cor-
ruptly 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 ad-
ministration 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 imprison-
ment 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.”
Cite as: 584 U. S. ____ (2018) 1
THOMAS, J., dissenting
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 THOMAS, with whom JUSTICE ALITO joins,
dissenting.
The Omnibus Clause of 26 U.S. C. §7212(a) of the In-
ternal Revenue Code (Tax Code) makes it a felony to
“corruptly . . . endeavo[r] to obstruct or imped[e] the due
administration of this title.” “[T]his title” refers to Title
26, which contains the entire Tax Code and authorizes the
Internal Revenue Service (IRS) to calculate, assess, and
collect taxes. I would hold that the Omnibus Clause does
what it says: forbid corrupt efforts to impede the IRS from
performing any of these activities. The Court, however,
reads “this title” to mean “a particular [IRS] proceeding.”
Ante, at 10. And that proceeding must be either “pending”
or “in the offing.” Ante, at 11. The Court may well prefer
a statute written that way, but that is not what Congress
enacted. I respectfully dissent.
I
Petitioner Carlo J. Marinello, II, owned and managed a
company that provided courier services. Marinello, how-
ever, kept almost no records of the company’s earnings or
expenditures. He shredded or discarded most business
records. He paid his employees in cash and did not give
them tax documents. And he took tens of thousands of
dollars from the company each year to pay his personal
2 MARINELLO v. UNITED STATES
THOMAS, J., dissenting
expenses.
Unbeknownst to Marinello, the IRS began investigating
him in 2004. The IRS learned that he had not filed a tax
return—corporate or individual—since at least 1992. But
the investigation came to a standstill because the IRS did
not have enough information about Marinello’s earnings.
This was not surprising given his diligent efforts to avoid
creating a paper trail. After the investigation ended,
Marinello consulted a lawyer and an accountant, both of
whom advised him that he needed to file tax returns and
keep business records. Despite these warnings, Marinello
did neither for another four years.
In 2009, the IRS decided to investigate Marinello again.
In an interview with an IRS agent, Marinello initially
claimed he was exempt from filing tax returns because he
made less than $1,000 per year. Upon further question-
ing, however, Marinello changed his story. He admitted
that he earned more than $1,000 per year, but said he
“ ‘never got around’ ” to paying taxes. 839 F.3d 209, 212
(CA2 2016). He also admitted that he shredded docu-
ments, did not keep track of the company’s income or
expenses, and used the company’s income for personal
bills. His only excuse was that he “took the easy way out.”
Ibid. After just a few hours of deliberation, a jury con-
victed Marinello of corruptly endeavoring to obstruct or
impede the due administration of the Tax Code, §7212(a).
II
Section 7212(a)’s Omnibus Clause prohibits “corruptly
. . . obstruct[ing] or imped[ing], or endeavor[ing] to ob-
struct or impede, the due administration of this title.” I
agree with the Court’s interpretations of “obstruct or
impede” and “due administration,” which together refer to
conduct that hinders the IRS’ performance of its official
duties. See ante, at 4–5. I also agree that the object of
these words—the thing a person is prohibited from ob-
Cite as: 584 U. S. ____ (2018) 3
THOMAS, J., dissenting
structing the due administration of—is “this title,” i.e.,
Title 26, which contains the entire Tax Code. See ante, at
4. But I part ways when the Court concludes that the
whole phrase “due administration of the Tax Code” means
“only some of ” the Tax Code—specifically “particular [IRS]
proceeding[s], such as an investigation, an audit, or other
targeted administrative action.” Ante, at 5, 10. That
limitation has no basis in the text. In my view, the plain
text of the Omnibus Clause prohibits obstructing the due
administration of the Tax Code in its entirety, not just
particular IRS proceedings.
A
The words “this title” cannot be read to mean “only some
of this title.” As this Court recently reiterated, phrases
such as “this title” most naturally refer to the cited provi-
sion “as a whole.” Rubin v. Islamic Republic of Iran, 583
U. S. ___, ___ (2018) (slip op., at 8). Congress used “this
title” throughout Title 26 to refer to the Tax Code in its
entirety. See, e.g., §7201 (“[a]ny person who willfully
attempts in any manner to evade or defeat any tax im-
posed by this title”); §7203 (“[a]ny person required under
this title to pay any estimated tax or tax, or required by
this title . . . to make a return, keep any records, or supply
any information, who willfully fails to [do so]”). And,
“[w]hen Congress wanted to refer only to a particular
subsection or paragraph, it said so.” NLRB v. SW General,
Inc., 580 U. S. ___, ___ (2017) (slip op., at 9); see, e.g.,
§7204 (criminalizing willfully failing to furnish a state-
ment “required under section 6051”); §7207 (criminalizing
willfully furnishing fraudulent or materially false infor-
mation “required pursuant to section 6047(b), section
6104(d), or subsection (i) or (j) of section 527”); §7210
(criminalizing neglecting to appear or produce documents
“required under section 6420(e)(2), 6421(g)(2), 6427( j)(2),
7602, 7603, and 7604(b)”). Thus, “this title” must refer to
4 MARINELLO v. UNITED STATES
THOMAS, J., dissenting
the Tax Code as a whole.
The phrase “due administration of this title” likewise
refers to the due administration of the entire Tax Code.
As this Court has recognized, “administration” of the Tax
Code includes four basic steps: information gathering,
assessment, levy, and collection. See Direct Marketing
Assn. v. Brohl, 575 U. S. ___, ___–___ (2015) (slip op., at 6–
7). The first “phase of tax administration procedure” is
“information gathering.” Id., at ___ (slip op., at 6); see,
e.g., §§6001–6096. “This step includes private reporting of
information used to determine tax liability, including
reports by third parties who do not owe the tax.” Id., at
___ (slip op., at 6) (citation omitted). The “next step in the
process” is “assessment,” which includes “the process by
which [a taxpayer’s liability] is calculated” and the “official
recording of a taxpayer’s liability.” Id., at ___ (slip op., at
6); see, e.g., §§6201–6241. After information gathering
and assessment come “levy” and “collection.” See id., at
___ (slip op., at 7); see, e.g., §§6301–6344. Levy refers to “a
specific mode of collection under which the Secretary of
the Treasury distrains and seizes a recalcitrant taxpayer’s
property.” Id., at ___ (slip op., at 7). Collection refers to
“the act of obtaining payment of taxes due.” Ibid.
Subtitle F of the Tax Code—titled “Procedure and Ad-
ministration”—contains directives related to each of these
steps. It requires taxpayers to keep certain records and
file certain returns, §6001; specifies that taxpayers with
qualifying incomes must file returns, §6012; and author-
izes the Secretary of the Treasury to create returns for
taxpayers who fail to file returns or who file fraudulent
ones, §6020. It requires the Secretary to make inquiries,
determinations, and assessments of tax liabilities. §6201.
And it authorizes the Secretary to collect and levy taxes.
§§6301, 6331. Subtitle F also gives the Secretary the
power to commence proceedings to recover unpaid taxes or
fees, §§7401–7410, and to conduct investigations into the
Cite as: 584 U. S. ____ (2018) 5
THOMAS, J., dissenting
accuracy of particular returns, §§7601–7613.
Accordingly, the phrase “due administration of this title”
refers to the entire process of taxation, from gathering
information to assessing tax liabilities to collecting and
levying taxes. It is not limited to only a few specific provi-
sions within the Tax Code.
B
The Court rejects this straightforward reading, describ-
ing the “literal language” of the Omnibus Clause as “neu-
tral.” Ante, at 4. It concludes that the statute prohibits
only acts related to a pending or imminent proceeding.
Ante, at 10–11. There is no textual or contextual support
for this limitation.
The text of the Omnibus Clause is not “neutral”; it omits
the limitation that the Court reads into it. The Omnibus
Clause nowhere suggests that “only some of ” the processes
in the Tax Code are covered, ante, at 5, or that the line
between covered and uncovered processes is drawn at
some vague notion of “proceeding.” The Omnibus Clause
does not use the word “proceeding” at all, but instead
refers to the entire Tax Code, which covers much more
than that. This Court cannot “lightly assume that Con-
gress has omitted from its adopted text requirements that
it nonetheless intends to apply.” Jama v. Immigration
and Customs Enforcement, 543 U.S. 335, 341 (2005).
Having failed to find its proposed limit in the text, the
Court turns to context. However, its two contextual ar-
guments fare no better.
First, the Court contends that the Omnibus Clause must
be limited to pending or imminent proceedings because
the other clauses of §7212 are limited to actions “taken
against individual identifiable persons or property.” Ante,
at 5. But specific clauses in a statute typically do not limit
the scope of a general omnibus clause. See Ali v. Federal
Bureau of Prisons, 552 U.S. 214, 225 (2008) (explaining
6 MARINELLO v. UNITED STATES
THOMAS, J., dissenting
that the ejusdem generis canon does not apply to a “dis-
junctive” phrase in a statute “with one specific and one
general category”). Nor do the other clauses in §7212
contain the pending-or-imminent-proceeding requirement
that the Court reads into the Omnibus Clause. See
§7212(a) (prohibiting efforts to “intimidate or impede any
officer or employee of the United States acting in an offi-
cial capacity”); §7212(b) (prohibiting “forcibly rescu[ing] or
caus[ing] to be rescued any property after it shall have
been seized under this title”). They thus provide no sup-
port for the Court’s atextual limitation.
Second, the Court asserts that its reading prevents the
Omnibus Clause from overlapping with certain misde-
meanors in the Tax Code. Ante, at 6–7 (discussing §§7203,
7204, 7205). But there is no redundancy problem because
these provisions have different mens rea requirements.
The Omnibus Clause requires that an act be done “cor-
ruptly,” but the misdemeanor provisions require that an
act be done “willfully.” The difference between these mens
rea requirements is significant. While “willfully” requires
proof only “that the law imposed a duty on the defendant,
that the defendant knew of this duty, and that he volun-
tarily and intentionally violated that duty,” Cheek v. United
States, 498 U.S. 192, 201 (1991), “corruptly” requires
proof that the defendant “act[ed] with an intent to procure
an unlawful benefit either for [himself] or for some other
person,” United States v. Floyd, 740 F.3d 22, 31 (CA1
2014) (collecting cases); see also Black’s Law Dictionary
414 (rev. 4th ed. 1951) (“corruptly” “generally imports a
wrongful design to acquire some pecuniary or other ad-
vantage”). In other words, “corruptly” requires proof that
the defendant not only knew he was obtaining an “unlaw-
ful benefit” but that his “objective” or “purpose” was to
obtain that unlawful benefit. See 21 Am. Jur. 2d, Crimi-
nal Law §114 (2016) (explaining that specific intent re-
quires both knowledge and purpose).
Cite as: 584 U. S. ____ (2018) 7
THOMAS, J., dissenting
The Court dismisses the significance of the different
mens rea requirements, see ante, at 8, but this difference
is important under basic principles of criminal law. The
law recognizes that the same conduct, when committed
with a higher mens rea, is more culpable and thus more
deserving of punishment. See Schad v. Arizona, 501 U.S.
624, 643 (1991) (plurality opinion). For that reason, dif-
ferent mens rea requirements often differentiate culpabil-
ity for the same conduct. See, e.g., 40 C. J. S., Homicide
§80 (2014) (explaining that the distinction between first-
and second-degree murder is based on the defendant’s
state of mind); §103 (same for voluntary and involuntary
manslaughter). Unless the Court means to cast doubt on
this well-established principle, it should not casually
dismiss the different mens rea requirements in the Omni-
bus Clause and the various misdemeanors in the Tax
Code.
Even if the Omnibus Clause did overlap with these
other misdemeanors, that would prove little. For better or
worse, redundancy abounds in both the criminal law and
the Tax Code. This Court has repeatedly declined to
depart from the plain meaning of the text simply because
the same conduct would be criminalized under two or
more provisions. See, e.g., Loughrin v. United States, 573
U. S. ___, ___, n. 4 (2014) (slip op., at 7, n. 4) (“No doubt,
the overlap between the two clauses is substantial on our
reading, but that is not uncommon in criminal statutes”);
Hubbard v. United States, 514 U.S. 695, 714, n. 14 (1995)
(“Congress may, and often does, enact separate criminal
statutes that may, in practice, cover some of the same
conduct”); Sansone v. United States, 380 U.S. 343, 352
(1965) (allowing the Government to proceed on a felony
tax evasion charge even though that charge “ ‘covered
precisely the same ground’ ” as two misdemeanors in the
Tax Code). In fact, the Court’s interpretation of the Om-
nibus Clause does not eliminate the redundancy. Certain
8 MARINELLO v. UNITED STATES
THOMAS, J., dissenting
misdemeanor offenses in the Tax Code—such as failing to
obey a summons, §7210—apply to conduct that takes place
during a proceeding and, thus, would still violate the
Omnibus Clause under the Court’s interpretation. The
Court’s interpretation also makes the Omnibus Clause
largely redundant with 18 U.S. C. §1505, which already
prohibits “corruptly . . . endeavor[ing] to influence, ob-
struct, or impede 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.”
Avoiding redundancy is thus not a reason to favor the
Court’s interpretation. Cf. Marx v. General Revenue Corp.,
568 U.S. 371, 385 (2013) (“[T]he canon against surplusage
‘assists only where a competing interpretation gives effect
to every clause and word of a statute’ ”).*
C
The Court contends that its narrow reading of “due
administration of this title” is supported by three decisions
interpreting other obstruction statutes, though it admits
that the “language and history” of the Omnibus Clause
“differ somewhat” from those other obstruction provisions.
Ante, at 9 (citing United States v. Aguilar, 515 U.S. 593
(1995); Arthur Andersen LLP v. United States, 544 U.S.
696 (2005); Yates v. United States, 574 U. S. ___ (2015)
——————
* The Court also relies on legislative history to support its interpreta-
tion. See ante, at 5–6. Even assuming legislative history could impose
a requirement that does not appear in the text, the Court cites nothing
in the legislative history that limits the Omnibus Clause to proceed-
ings—or even uses the word “proceeding.” In fact, the legislative
history does not say anything at all about the Omnibus Clause. As
Marinello concedes, the vague snippets of legislative history that the
Court cites are discussing a different portion of 26 U.S. C. §7212(a),
involving threats against IRS officers and their family members. See
Reply Brief 11 (“The conceded focus of §7212(a)’s legislative history was
the officers clause” and it was “relative[ly] silen[t] regarding [the
Omnibus Clause]”).
Cite as: 584 U. S. ____ (2018) 9
THOMAS, J., dissenting
(plurality opinion)). “[D]iffer somewhat” is putting
it lightly. The differences between the Omnibus Clause
and those other obstruction statutes demonstrate why
the former does not contain the Court’s proceeding
requirement.
Aguilar interpreted 18 U.S. C. §1503. The omnibus
clause of §1503 forbids corruptly endeavoring to obstruct
“the due administration of justice.” The Court concluded
that this language requires the prosecution to prove a
“nexus” between the defendant’s obstructive act and “judi-
cial proceedings.” 515 U.S., at 599–600. But this nexus
requirement was based on the specific history of §1503.
The predecessor to that statute prohibited obstructing “the
due administration of justice” “in any court of the United
States.” Pettibone v. United States, 148 U.S. 197, 202
(1893) (citing Rev. Stat. §5399). Based on this statutory
history, the Court assumed that §1503 continued to refer
to the administration of justice in a court. Aguilar, supra,
at 599. None of that history is present here.
Arthur Anderson is even further afield. There the Court
interpreted 18 U.S. C. §1512(b)(2)(A), which prohibits
“knowingly . . . corruptly persuad[ing] another person . . .
with intent to . . . cause or induce [that] person to . . .
withhold testimony, or withhold a record, document, or
other object, from an official proceeding.” Relying on
Aguilar, the Court concluded that §1512(b)(2)(A) required
the Government to show a “nexus” with “[a] particular
proceeding.” 544 U.S., at 707–708. But this nexus re-
quirement came from the statutory text, which expressly
included “an official proceeding.” If anything, then,
§1512(b)(2)(A) cuts against the Court’s interpretation of
the Omnibus Clause because it shows that Congress
knows how to impose a “proceeding” requirement when it
wants to do so. See Kucana v. Holder, 558 U.S. 233, 248
(2010); Jama, 543 U.S., at 341.
Yates underscores this point. There the Court inter-
10 MARINELLO v. UNITED STATES
THOMAS, J., dissenting
preted 18 U.S. C. §1519, which prohibits obstructing “the
investigation or proper administration of any matter
within the jurisdiction of any department or agency of the
United States.” The four Justices in the plurality recog-
nized that this language made §1519 broader than other
obstruction statutes: Section 1519 “covers conduct intended
to impede any federal investigation or proceeding, includ-
ing one not even on the verge of commencement.” 574
U. S., at ___ (slip op., at 18). The plurality contrasted the
term “official proceeding” with the phrase “investigation or
proper administration of any matter within the jurisdic-
tion of any department or agency,” noting that the latter is
broader. Id., at ___–___ (slip op., at 12–13). The same is
true for the broad language of the Omnibus Clause.
In sum, these cases demonstrate that, when text and
history justify it, this Court interprets obstruction statutes
to include a proceeding requirement. But we have never
inserted such a requirement into an obstruction statute
without textual or historical support. Today the Court
does precisely that.
D
All else having failed, the Court invokes lenity-sounding
concerns to justify reading its proceeding requirement into
the Omnibus Clause. See ante, at 4, 7. But the rule of
lenity applies only if after applying ordinary tools of statu-
tory interpretation, “there remains a grievous ambiguity
or uncertainty in the statute such that the Court must
simply guess as to what Congress intended.” Barber v.
Thomas, 560 U.S. 474, 488 (2010) (citation and internal
quotation marks omitted). The Court identifies no such
grievous ambiguity in the Omnibus Clause, and breadth is
not the same thing as ambiguity. The Omnibus Clause is
both “very broad” and “very clear.” Yates, supra, at ___
(KAGAN, J., dissenting) (slip op., at 15). Lenity does not
apply.
Cite as: 584 U. S. ____ (2018) 11
THOMAS, J., dissenting
If the Court is concerned that the Omnibus Clause does
not give defendants “fair warning” of what it prohibits,
ante, at 7, I am hard pressed to see how today’s decision
makes things better. The Court outlines its atextual
proceeding requirement in only the vaguest of terms.
Under its interpretation, the prosecution must prove a
“nexus” between the defendant’s conduct and some “par-
ticular administrative proceeding.” Ante, at 10.
“[P]articular administrative proceeding” is defined nega-
tively as “not . . . every act carried out by IRS employees in
the course of their ‘continuous, ubiquitous, and universally
known’ administration of the Tax Code.” Ante, at 10–11.
Further, the Government must prove that the proceeding
was “reasonably foreseeable” to the defendant. Ante, at
11. “Reasonably foreseeable” is again defined negatively
as “not . . . that the defendant knew the IRS may catch
onto his unlawful scheme eventually.” Ibid. It is hard to
see how the Court’s statute is less vague than the one
Congress drafted, which simply instructed individuals not
to corruptly obstruct or impede the IRS’ administration of
the Tax Code.
E
To be sure, §7212(a) is a sweeping obstruction statute.
Congress may well have concluded that a broad statute
was warranted because “our tax structure is based on a
system of self-reporting” and “the Government depends
upon the good faith and integrity of each potential tax-
payer to disclose honestly all information relevant to tax
liability.” United States v. Bisceglia, 420 U.S. 141, 145
(1975). Whether or not we agree with Congress’ judgment,
we must leave the ultimate “[r]esolution of the pros and
cons of whether a statute should sweep broadly or narrowly
. . . for Congress.” United States v. Rodgers, 466 U.S. 475,
484 (1984). “[I]t is not our task to assess the consequences
of each approach and adopt the one that produces the least
12 MARINELLO v. UNITED STATES
THOMAS, J., dissenting
mischief. Our charge is to give effect to the law Congress
enacted.” Lewis v. Chicago, 560 U.S. 205, 217 (2010).
The Court frets that the Omnibus Clause might apply to
“a person who pays a babysitter $41 per week in cash
without withholding taxes,” “leaves a large cash tip in a
restaurant,” “fails to keep donation receipts from every
charity,” or “fails to provide every record to an account-
ant.” Ante, at 7. Whether the Omnibus Clause would
cover these hypotheticals—and whether the Government
would waste its resources identifying and prosecuting
them—is debatable. But what should not be debatable is
that the statute covers Marinello, who systematically
shredded documents and hid evidence about his company’s
earnings to avoid paying taxes even after warnings from
his lawyer and accountant. It is not hard to find similar
cases prosecuted under the Omnibus Clause. See, e.g.,
United States v. Sorenson, 801 F.3d 1217, 1221–1222
(CA10 2015) (defendant hid taxable income in elaborate
system of trusts); Floyd, 740 F.3d, at 26–27, 31–32 (de-
fendant created elaborate scheme to avoid paying payroll
taxes).
The 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.
In doing so, it failed to heed what this Court recognized in
a similar case: “[T]he authority vested in tax collectors
may be abused, as all power is subject to abuse. However,
the solution is not to restrict that authority so as to un-
dermine the efficacy of the federal tax system.” Bisceglia,
supra, at 146.
* * *
Regardless of whether this Court thinks the Omnibus
Clause should contain a proceeding requirement, it does not
have one. Because the text prohibits all efforts to obstruct the
due administration of the Tax Code, I respectfully dissent.