was not created an all purpose tax crime it was barring from a statute that prohibited the obstruction of a pending proceeding this court normally presumes that bar language carries its meaning with it and that has to be the case here for without that limitation of struct swallow up the other crimes that congress simultaneously and acted and in particular it would obliterate the careful line that congress through between misdemeanors and felonies indeed the government's interpretation is so broad that it would show entirely legitimate conduct the congress never intended to taxpayer someone who pays their gardener say in cash which is one of the predicate acts in this case as well pain in cash isn't necessarily illegal under the tax laws but the test that the government would have is if by pain someone cash your nest you're making it harder for the i r s to assess perhaps your tax liability or perhaps the tax liability of the person that you are pain and at that question at that point the only question that remains is mens rea on why did you do it did you do it for the purpose of obtaining an on lawful benefit and even that benefit need not even be your own under the government's renia could be the benefit of the gardener or to take another example imagine a taxpayer who says i'm going to keep every document the law requires under the code i'll keep every doctor but no documents more if the iris ever came back and looked at that person's tax position they might say your failure to keep these documents are all that are otherwise required hindered us in our ability to assess your taxes at that point again the only question becomes the why the mens rea and with a felony prosecution on the line and with so many acts the actus reus is being so broad anything that hinders the irises ability to carry out my modem is that i have a question i have a lot of hypotheticals under your definition of what the section means that wouldn't be covered so how about if an individual knows that the i r s is in the presence of press in the process of assessing his taxes and he someway obstructs that process or and then agent into the agent in two thousand or called the defendant and said you know i'm deciding whether to open an investigation i haven't but i'm just thinking about it i understand you have this business and i don't see any tax returns and your client answered the way he first did i make less than a thousand dollars i don't have to file and the agent closes the investigator closes the file and says i'm not going investigate this under your theory that direct obstruction would not be actionable it would be several other crimes almost as you describe it sounds like tax evasion if there is a deficiency and the basis of act in connection with it to be a false statement to the r us but congress knows how to write a pending proceeding requirement if you think back to the statute at issue in arthur andersen subsection fifteen twelve another obstruction statute that applies in two cases of corruption to proceedings fifteen twelve after which congress enacted as part of sarbanes oxley says the proceeding need not be pending or even about to be instituted now this court will wait a minute yes you can do that some time you can do that it doesn't other time it doesn't other times and so is this one of those other times well i think the the right way to understand it is congress is interpretation it seems to me that one could say that the example i gave is an actual affirmative act by the agency it is the agent is calling and doing his work under the act but that what you do outside of interacting directly with the agency is more omission which is not the administration of the act could that line be drawn i don't that's certainly not the one the government's offering but but it's not the line the government's offering but yours says your broadness is sweeping up a lot of conduct that i think could be perceived as active obstruction of the work of the direct work of the agency an agent close here when you mislead them well a couple responses as i said those are covered by other crimes in the statute false statements could even be covered by the officers clause of the statute but i think the key for this is in some sense i think the point of your question is not pain your taxes failing to file a return failure to make a payment we will concede is in some sense obstruction of the administration of the code but that can't be what congress had in mind for this statute because we know what they thought the penalty for those crimes should be they should be a misdemeanor those people should not be branded as felons it's wrong it's a crime but it's a misdemeanor punishable by one year and you know essentially one page of the code they're calling this conduct a misdemeanor and then on the government's view actually it turns out that it turns out to be felony obstruction and these are provisions that were the product of  intense multi year process of reform in the tax code where congress specifically debated back and forth between the house and the senate about whether some of these crimes should be classified as misdemeanors or felonies and so i think when you're trying to read the statute as a whole and here the need to do that is that it's a pax because we're not talking about different provisions that were enacted over a series of decades this was congress's concerted attempt to codified and calibrate the penalties that it wanted and then to find out that actually everything turns out to be a felony because in everything any act of violence attached law could in some sense be meant understood to be obstructing the administration of the code that's not a plausible way to read a tacking on charges under this provision yes roger and i and i think that tax and miki and other media who have followed in this case speak to that i took a look and this is just my own personal review of the cases in th getting in that really in the ninety's and then in the two thousands you start to see seventy to twelve obstruction charges brought in there's hundreds of cases you can go online and just look for where those charges have been brought even reported cases and as  we discussed in the brief the predicates are are now becoming ones in which failure to file a return is becoming a predicate failure to pay taxes is becoming the predicate to go to your first examples of just well who wondered this  i think remember the gardener yes suppose you hire somebody that is supposed shovel your snow off your steps every three weeks or so or every week or and the gardener does some gardening bring some leaves and you pay more than six hundred dollars over a year die i guess you're required to file a ten ninety nine form that's right which is a you know i don't know people who do i mean maybe everybody in the country is a law breaker but i but i mean if their interpretation is correct in your view that would give them the power in their discretion to indict i would say half the country but that but a very significant number of people yes that right that if they know this requirement and if they want to help the gardener or whatever that's correct and i think i know that is right you're sure that i think yes that is correct because it comes down to to the mens rea of the person all they want to know about the guard and they know about it that's right and i think another strawman i mean i share you concern that if this statute is read in its broadest possible literal sense it has a really staggering sweep but i wonder if your interpretation really solves the problem because can't the same sorts of things happen after a proceeding has commenced let's say somebody is being audited and eventually the person comes up with the records that the auditor needs but they're all scrambled up and looks like that and the person is is late in providing them and mrs meetings and just is very difficult and you could get the same situation there couldn't you i suppose you could but there's a difference as to why i think the statute ought to tolerate the prosecution in that scenario which is where there's been a formal notice of audit and someone has been given questions by the government and needs to respond in a reasonable manner to them you can understand  congress wanted to make that a crime distinct from maybe on top of other crimes that a person has committed but if we're talking about the maintenance of records prior to the initiation of that proceeding that there are many other crimes that you cover record keeping and of course your obligation to pay taxes but those are generally with the exception of tax evasion generally not felonies and they're generally have a lower sentence than the one here so i do take your point that there could be the potential for abuse even under our interpretation but i do think that it's significantly narrowed just for the reasons that i said mrs only there are obvious reasons to search for a limiting interpretation here i guess the question is why you  limiting interpretation and obviously you talked about this in your brief but i just want to give you an opportunity now to try to convince me because right now i feel as though it comes out of thin air it doesn't have any grounding in the text of the statute and i guess i'm not seeing quite how the precedent gets you there so absolutely i think the key reasons why we would think that congress had fifteen zero three in mind when it was talking it when it was an act in seventy two twelve are the following you've got a statute fifteen zero three and acted just a few years before six years before it doesn't just talk about obstruction of the do administration of something it's got that two parts structure officers in the first half of ministration in the second it's got those same verbs to impede or intimidate the officer or impede or obstruct the proceeding and  also have the same means by which you're doing that so you put that all together and on top of that the fact that there's nothing unusual about obstruction proceed obstruction statutes having proceedings as their focus there are several obstruction statutes  after fifteen zero three in the code that all talk about obstruction of proceeding and so we do so when you talk about obstruction of the do administration it's sort of a natural marriage of god concept to proceedings now there's nobody slate of history that point it was expressly or said obstruction in a court in a fact that's correct but when congress riccati fired that statute six years before seventy to twelve they said that they were not making any substantive changes so that was the language on the shelf if you want to have a two part of structure in statute one for the officers one for the due administration it's really the model and i don't think that word choice can be explained by by coincidence and then of course you have the problem of again what would the government's alternative interpretation puts a code that would stretch across this you know this entire table any violation of it which is potentially a felony  if i would i want to go back to one other way in which and this is not just an emissions point this is an affirmative access point seventy two zero five in the tax code if anybody's ever been an employee in this country when you start your job you thought the w four form where you say how many dependents you have which controls how much withholding your employer will take out of your your paycheck i too know many people who don't put down the true number of dependents that they have in order to affect the withholding in that they get in some sense that is an unlawful benefit money's being not being withheld that should be but we know that congress wanted to punish that as a misdemeanor not a felony now  people do that i mean you've got three children they say they've got five bikes spirit well in any case well your experience to justice ginsburg on that i wasn't thinking of those people i just think that there are many many many many regulations in the code that are seem to be quite trivial to an ordinary person and  they might in fact not pay that much attention to every form and moreover maybe they even want to help the gardener right now i think there are many such people in the ten ninety nine case but i don't know that's why i asked you whether it was an appropriate exam e and i do believe that it is one well mr rahman what role should let it be played here if any well i think this court's decisions and i grew our and arthur andersen sort of point the way in that direction we haven't made a constitutional argument in this case that it would be on lawful unconstitutional for congress to write a statute the statute the government says they wrote here but saving that for the next case that will save that for the next case but what we have most definitely argued in this case is that as the court explained aguilar before this court will assume that congress meant to felon eyes every immoral act under the sun we're going to want them to say that a little bit more nexus to a pending proceeding so in that case the defendant lied was conceded to an f b i agent but it wasn't clear that those statements were ever going to get into court into a grand jury proceeding they might or might not in the words of the court and what the court argument is nexus to a pending proceeding interpreted with the same language accepted says administration of justice should lead us to say nexus to a pending proceeding  administration of this title is that the argument that is and again it's a response to justice course which is question if the court has proceeded carefully with lenity in mind when and when it's looked at a statute that the government  said covers everything that one might want to punish but doesn't clearly say that that is what we intend to punish and both considerations of fair notice and as the court put it deference to the prophet is of congress suggest that  narrow interpretation is call for those that want lenity means this for sure and this is a broad statute it doesn't seem very ambiguous you know yet none of the usually we're looking for a grievous ambiguity sort of like the last case and i think i don't know you could read it this way you can read it that way what do we do but that's not the statute this statute taken on its face is just ungodly broad i understand the court's len doctrine to say that once you apply the normal tools of statutory interpretation if you're really left with good arguments on both sides there's real ambiguity important ambiguity in a criminal case you go with the less harsh interpretation and so for example if we are left with some ambiguity as to your aguilar analogy that's when you would suggest perhaps lenity might be a tiebreaker yes yes i do and with respect to justice kagan's question i think that these words read in isolation do suggest but reading them in isolation isn't is the only stuff obviously of statutory interpretation we have to look at it in context and this is an incredibly strong case for context automatic where you have congress intentionally trying to bring together in one place i believe is the phrase they used all of the disparate tax crimes and recalibrate  saw fit so again the statute read in isolation i certainly take the point that it looks broad and strong and i'm godly broad to use your phrase but that isn't the end of the statutory analysis and once you do all of the steps you have to where the language arm look to what it might mean and contacts with other provisions right next door to it at that point we see just what we think we have the better of the argument but at a minimum at a bare minimum there are competing interpretations that were the rule of law that he there is something to be done about the context that this was drafted as i look at the first half of the statute yes whoever corruptly or by force or threat of  force including any threatening letter or communication endeavors to intimidate or impede any officer or employee of the us acting in an official capacity yes or in any wa that seems to be geared toward some affirmative act aimed at an agency or the agency that's where i got or my earlier less differentiation between a affirmative act and omission act because that doesn't have the flavor of force or threat of force or threatening all of the sort of active violent or active obstructive right behavior that the examples set forth i think i understand your question better now that i have a couple of responses i don't think the omission limitation will get will make sense of the tax criminal code for a couple of reasons one there are several misdemeanor offenses under the code that are not omission offenses they are firm of act of fences and congress showed a lot of thought making a false statement in connection with your taxes that's an affirmative act is a misdemeanor and less you can unless you make that statement under the penalty of perjury that is the difference between section seventy two zero seven and section seventy two zero six subsection one that distinction between bad kinds of false statements affirmative acts is obvi obliterated by an interpretation of obstruction that says when used make a false statement to the government it has the effect of hindering even if you didn't make it out of the penalty of perjury you might have made it not in that connection so i don't think that you know missions doing and could that same spirit or thought be thought to apply in the ministration as well that the iris has to be doing something you're proceeding thought is a is a doing it is a thing it is not just merely something more going on and maybe that's not entirely well what i would say is if the father is by limiting obstruction to any affirmative act that hinders the i r s in any way you dropped the statute no no no it limiting it to some affirmative act going on by the agency i think is what just a sort of are suggesting that the agency has to be doing something other than merely passively receiving taxes one of course all of the conduct or missions in this case are not in not correct so it's a friendly amendment but then that's not the rule we have adopted your doors to the court but  then again you would have some other i have difficulty getting to what you have because you haven't this justice kagan pointed out given us anything in the language anchor this in at least  justice it appears just as course that you and i are trying to look at the language so what i would say in response to that is we would accept because there is no but i just want to be be be certain that the court fully appreciates that the line between when the irises doing something and not doing something at times can be a little bit blurry and so  submission to this court is that the government's interpretation in this case cannot be correct we have offered language that comes directly from a predecessor statute doing proceedings but i understand the court's point that you might define for students a little the other part i wanted to make sure i i said before i sat down was the government's interpretation this case although they push it now is not one that they had invoked for nearly thirty years after the statute was and acted alone they claim it's there is no ambiguity there is no need for lenity this is an interpretation that really came into fruition in the ninety's and with increasing frequency and in many many cases this is now being charged a mr parker mr chief justice and may it please the court i'd like at the very outset to address several of the things that my friend just said he he suggested that entirely lawful conduct would come within this statute we think that that is incorrect he suggested that this statute swallows all of the other misdemeanor provisions of the code we think that that isn't correct and i want just take a moment to explain why we know the one example he does give people go into shelters thinking they might be legal might now i'm going to roll my dice would that be corrupted i don't believe so because there is not the specific intent to obtain an unlawful advantage you have to not only be intending to advantage yourself but know that there that the advantages on lawful and so that i think goes directly to be justice briar's snow shovel are all right  think he's a felon under your interpretation because the person who's paying him know that above six hundred dollars or whatever it is i have to file a ten ninety nine i'm not doing it and doing it for an unlawful advantage for the snow shovel or i know what i'm of i'm a federal felony so for my for my friend's son snow shoveling business well i'm right i think that i mean the answer is yes that your name stands may come within the scope i'm waiting for employing an independent contractor just so an individual but but i don't want to i don't think that that matters to the point though is how it was you know he's supposed to know when they're going to be in trouble here because it seems like a paying knows about but then on the nine they may be kept out of trouble as a result but i think the the point there are a couple of points that i think are important to me the first is the mens rea a requirement of this statu law honest services and here it seems to me that's what the government's parallel parallel argument that we're not going to tell you what qualifies we'll find out later and it sometimes is going to be simply paying cash sometimes it's not going to be keeping the records so there are a number of limiting features of this statute that provide protection against precisely what you are explaining and i think there are really three of them the first is there has to be a natural tendency to obstruct this is the objective means of the instructor going to ever it was a factual way that the individual was engaging in obstructive conduct but you then have to determine that on the overall facts of this case there was a natural tendency of that act to obstruct you also have to show that the individual intended specifically intended to obstruct the administration of the code and therefore you know what do you do with the term impede well i think that the term impede is largely coextensive with the term obstruction i don't know whether it does it is the dictionary definition of impede it is interfere with or slow the progress of so anything that makes the work of the i r s more difficult impedes the work of the i r s i well i would disagree with the statement that anything that makes the work of the iris more difficult and i think this goes to what i was why out why why you disagree with so basis so you have you have to have the natural tendency to obstruct you convince right what do you have besides the man's right well you you then have to be acting corruptly which means that you have to have the specific intent to that in the writing or do you have be excised a man's right so let's that you are engaged in lawful conduct your pain people in cash or you have structured your corporate form in a way that may make it more complicated for the i r s to figure out what your income and expenses are those things do not have a natural tendency to obstruct in and of themselves because there is nothing that says that the administration of the code has to be made maximally easy the only reason that those would end up having a obstructive effect is if you pair them with efforts to mislead or deceive the i r s into believing that the situation is not as it appears for a number lawful advantage so where does this come from in the language of the statute and this that's what troubles me about this if i read impede to mean what it means an ordinary language slow the progress of you don't even have to impede it's enough that you endeavor to impede the only limiting thing i see here is corrupt and you know the old you know the old saying it's lawful for taxpayers to avoid taxes but not to evade taxes so the line is the line can be very can be very thin i'm sure that it is all that thin and i think that the what is important to remember here is that there has to be an effort to actually convert that completely lawful conduct into something that has the natural tendency to obstruct or impede the i r s in an unlawful manner to obtain and then lawful but only just give you a variation of the hypothetical that's already been given so somebody i and some of these offers to clean my gutters and he violation of this no not at all why not well because there's no if i what if i you know i don't understand why he's going to give me the discount by paying by cash because he doesn't want to report it well again i think that you would then have to pair that with other efforts to deceive the i r s as you did here i mean why are rice and that's sufficient in itself because there's no natural tendency of the mere fact that you're giving one hundred dollars in cash to obstruct anything what becomes obstructive about that is if that is then not reported to the iris or is falsely reported to the i have zillions not that i reported he doesn't report well i think that if if you actually have think doesn't everybody know when they're given an offer like this you know i'd rather have cash than a check doesn't everybody know why people would rather than a chap that may be true but again this is i think precisely why these sorts of things me in the law means knowledge that the particular action is unlawful so are you saying the government's position is we cannot under this statute prosecute any person for anything he does unless that person knows that what he is doing such as giving money to a person in cash will be used to provide a benefit to that person that is unlawful he knows that doing this what he is doing is unlawful and unless he knows that the statute does not permit prosecution i think that that is accurate i mean you know don't think it's accurate i want to know if the government of the united states is saying this statute does not permit us to prosecute any person unless that person knows that the action he is taking so i'm repeating myself such as giving the money in cash breaks the federal law and he also knows that what he is doing in giving that money breaks the federal law well he has he does not know both of those things he cannot be prosecuted under this statute and i'm interested in the position of the united states on that question of interpretation it is an interpretation of the word corruptly yes that both yes the i mean the position of the united states is what i just said is correct no one can be prosecuted unless both those things are true both of those things i think ar evasion there's little reason to prove struction however all of the other ones the answer is no if you look at the elements of section seventy two twelve they are different than the elements that you will find in any other criminal provision in the in the internal revenue code they require corruption they require an intent to obstruct other provisions require willful actions or willful failures to act is that then you make a difference it's just the mens r difference well i think that's yes i mean the you also must have a natural tendency to obstruct and for example for failing to report your income withholding that information that you are lawfully required to provide i think has that natural tendency but if you look at these other provisions take for example failure to file a tax return there are going to be individuals and in fact i would wager to say that there are probably a large number of individuals who do not file their tax returns for reasons that have nothing to do with  specific intent to obtain an unlawful advantage like mainly say they may say sometimes i know a small amount of tax sometimes i get a small refund it's just not worth it to file in that circumstance there's no intent to obtain that unlawful advantage because you don't know whether you're going to would be advantaged or not i think the same thing could be said of you know failure to keep records you destroy all of your records because they're just sitting around and it makes you upset to have so many it right that some people are just cantankerous just not going to file that perhaps that's a fairly small number of people compared to the situation where it is not terribly difficult for an assistant u s attorney to prove that something was done corruptly as opposed to willfully well i was kind of like the discussion we were having that it is not hard to prove that paying in cash rather than a check when you get a discount was for a purpose to give all lawful advantage well i don't judge i would i'm not sure that it's correct to say that these are rare cases i would say that they are not as a general matter prosecuted and so they don't result in published opinions but i would say that i would say that the main concern here with kind of the over criminalization of the tax code i don't think actually plays out in practice our i can represent to the court that our internal data indicates that obstruction charges are brought in approximately four percent of the seminal in acts he says four percent is it still the published policy of the department to charge to the maximum extent reasonably  possible i believe that we as a general matter do seek out the most serious charge however especially in i thought that there was new guidance saying exactly that in the last year yes i believe that that's correct however might my point would be i don't think that there's any requirement that this particular provision be charged in any given case because of all the limits of those we were to conclude that eighty that it would necessarily be cause for concern i think that would be surprising however i would note that as this court has explained in many cases there is substantial overlap as a factual matter between the misdemeanor and felony provisions of the internal revenue well again i am not yes or no i don't think it is only because congress has specifically provided an interlocking web of criminal penalties in this area and it has done so precisely because we have a self reporting system of taxation the same as it once upon it has to be clear it's not my line of questioning is not to suggest bad faith on the part of the of the department but instead to suggest that that  motivated congress should motivate a narrower understanding of what congress intended in this particular provisional i think that's a fair point mr chief justice but i think that it does not motivate the adoption of the limiting construction that  pointed out and you conceded i have to know about something and i have to intend to obstruct or impede that thing and the government's interpretation of that thing as i understand it and it's in its words the continuous a big  otherwise something that is continuous a big witness and universal well respectfully just discourse which i don't think that that is what we were saying and i think that's we're not seeing an opposition those but those words refer to the understanding of individuals about the americans will go their entire lives without having a connection to the do administration of the internal revenue code occurs on a routine and predictable schedule that people know is coming and can reasonably proceed do i think there are you do if you want i want this enunciated and it sounds comical if i'm going to say it but but it's very important it is not an appropriate way of interpreting a statute that perfect criminal statute is a crime to do wrong in the opinion of the attorney general don't worry we'll interpret it properly even if you do interpret it properly no the answer under the constitution i think is no the second principle is right here in aguilar both of them the second and third we have traditionally exercised restraint in assessing the reach of a federal criminal statute both out of deference to the parag type 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 will do if a certain line is passed from those principles they conclude that a statute identically worded to this one but for the word justice instead of title requires a nexus be shown to a specific grand jury or jury proceeding a court proceeding even though of course you can read the word justice to include the investigators and many other things are right there saying in effect you take those same principles that same limiting restriction and do the same analogous thing here no why not i think there are a number of reasons not to do that first of all i think that the as i just explained the do administration of justice has always been understood to be something that occurs in discrete proceedings unlike the administration of the internal revenue code but i think that that is confirmed by the history of section fifteen zero three the predecessor statute to section fifteen zero three specifically said that it only applied to the obstruction of officers or witnesses in any court of the united states or the due administration of justice they are in now when backdrop of what's out there and what out was out there was our interpretation of those words requiring a nexus to an active proceeding something more than something more definite than something that's continuous a big criticism universal and  and the congress that passed this statute had that interpretation in its back pocket at the time but i would disagree with that because in none of this court's cases in pettibone in aguilar arthur andersen any of them did this court ever suggest that it is the phrase do administration not for his due administration of justice that carries that connotation and i would also note that if that is in fact what congress intended it is very strange because congress had just a few years earlier an act of the statute that is now section fifteen zero five cited in our brief and that statute was specifically enacted to do exactly what what you're suggesting justice course that it was in acted to extend the provisions of section fifteen zero three two pending proceedings before agencies of the united states and that is what it says if the petitioners interpretation were correct then i think that there's really no reason for congress to have an acted that it would also be awfully strange for congress not to have borrowed that l would also note that there are a number of getting back to the point i was making previously there is no reason to adopt his particular limiting construction which frankly i think has no basis in the text and  solve these problems can i go back to the question of of the department's prosecution policy and you know it could you tell me number one what the current state of the department's guidance is as to whether prosecutors are told to prosecute to the maximum extent allowed by law and number two whether that would mean in this case but here i am a prosecutor and i think that some action fools within seventy two twelve that i would be precluded from proceeding instead under seventy two three or seventy two five or seventy two zero seven my understanding it is certainly the department's position as a general matter that prosecutors should be charging the most serious offense that is readily provable on those facts i have and i couldn't say whether in any given case that would mean that subsection seventy two twelve would have to be charged because as i said before the facts of each case are going to be different and they're going to make the ability to prove section seventy two twelve more or less possible and there are going to be a number of cases where i think seventy to twelve isn't even possible to even to allege and so i think that i'm not sure that is that i guess what i was saying is that if a prosecutor could proceed under seventy to twelve the prosecutor is being instructed that she must proceed under that section if if if the facts of that case render a seventy two twelve charge readily provable then yes i think the prosecutors would do that but  i also think that that is not borne out by a concern that that is going to lead to just these sorts of charges becoming common and ubiquitous doesn't necessarily translate because as i said our understanding is that it's only about four percent of cases and that includes the most recent data from this from this year and so council you used the phrase readily proveable one is a question of fact is that is that the term that's used or is that your some which i use i don't exactly remember of the time that is used but certainly the government has to satisfy itself that it can prove beyond a reasonable doubt in that case that that crime has occurred i also  look before you move off that point why should we be comforted by the fact that prosecutorial discretion can be used in applying a statute if this is a statute with a really broad reach so that reaches a lot of rather trivial conduct doesn't that make the situation worse rather than better so then the prosecutors can decide where they want to use this i don't think that it does i mean i think that the government has the responsibility to enforce congress's statutes and if congress has provided that this particular conduct is criminal then i think that that is appropriate i don't think that there is anything c so then which is it we hear maximum i suppose that if the government could prove that the person did so with corrupt intent and i think that that's the main difference obviously between those two provisions in addition to the different statutory penalties if we could prove that then i think that would be available i'm not sure why the government would want to tack one on to the other i mean this would all well because i think we would simply proceed under section seventy two twelve a because that carries the higher potential penalty i would like to in the time i have remaining just be sure to make two points the first is the petitioners proposed limiting construction as we've said it doesn't come doesn't have a basis in the text but that doesn't mean that there aren't other potential limiting constructions that this court could adopt either in this case or in another appropriate case i think justice sotomayor you alluded to the possibility of excluding pure omissions from from the scope of the statute to try to differentiate between the misdemeanor provisions and this one the court actually engaged in a very similar analysis in that was the tax evasion case where it determined that omissions b were emissions at least would not qualify and i think that that may be an appropriate limit in construction here no one has suggested that and i think the reason petitioner hasn't is because it wouldn't really help him the only two means of the endeavor in this case that were charged as failures to act if you look at the evidence it was clear that he was engaged in clear affirmative actions of destroying his records and other things so that's one point i'd like to make in the second is one of the main problems here is that obstruction will obstruction at the front end will often prevent the government from being able to charge appropriate offenses on the backend in this case demonstrates that perfectly the government would have brought a tax evasion charge in this case but for the fact that  records that it was unable to prove beyond a reasonable doubt that there was an actual tax deficiency and so what i think petitioners proposed construction would do is it would effectively allow individuals to evade their taxes and then obstruct their way down to a misdemeanor charge or if they are particularly good at it maybe obstruct their way out of criminal penalties at all and the government could do nothing about it unless the individual actually happened to be obstructing a pending audit or investigation audits and investigations or types of administration but the internal revenue code contains an entire subtitle called procedure in administration that lists in sequential chapters all of the different types of  the ministration that occur that includes the gathering of information the taxpayers myself report it includes the calculation and assessment of taxes the collection of taxes would be very strange i think for congress to have specified that w with such clarity and then to have intended by referencing the due administration of this title to cut out all of that administrative functions and only focus on audits well i think that i mean i don't mean to repeat myself but i do think justice ginsburg that a rigorous and foresman of the mens rea requirement does that and this court has repeatedly said that in the obstruction context rigorous and forstmann of menswear requirements is what separates individuals who do not have or have not committed culpable conduct from those who do and i don't think that this struction provision i don't think this obstruction provision should be treated any differently thank you thank you counsel mr hellman four minutes remaining thank you mr chief justice just a few quick points i want to begin with the misdemeanors the willfulness demeter's in the code i think i heard my friend on the other side suggest that it could very well be that of this highly substantial number of those misdemeanors would qualify as obstruction which is in itself a problem and again it requires this court to think that crimes that the congress made the centerpiece of the code these w  fences really are only meant for the idiosyncratic case in which somebody intentionally violates the law but not for any particular benefit in the context of willful tax violations i think in the substantial majority of cases if not all you're going to have a prosecutor who can say this was done for a reason some awful benefit which need not even be financial second as to the safeguards that the mens rea requirement offers a world in which not consulting fully with an accountant pain in cash not keeping all records can become obstruction if they're done for the wrong reason then you really are leaving it up to the prosecutor who is required under current charging rules to charges aggressively as possible to decide what was in the defendant's mind not every case goes to trial very few cases go to trial with a felony conviction in the balance you're going to find this gives enormous leverage even more so than they currently have to prosecutors third there is a suggestion here that the government needs this broad interpretation otherwise wrongdoing will go on punished they can't point to a single case since one nine hundred fifty four where that was the case it is certainly not the case here where the government told the jury repeatedly that mr marlowe had substantial gross income and took substantial personal income from that  twenty one and twenty two below and pages five sixty five eighteen make that point very clearly forth do emissions theory as an alternative way of limiting this again that doesn't make sense of the statutes that are misdemeanors like forcible rescue like willful false statements that are affirmative acts but less punishment than those than the seventy two twelve obstruction charge the last thing i want to say is we believe that based on the heritage of this language and the fact that obstruction statutes typically are focused on proceedings that is the interpretation we've offered to the court but as justice courses in justice or myra pointed out there are other ways of reading the officers clause in conjunction with the administration clause to come up with a more limited standard that does not cover any of the context conduct in this case act or omission so for those reasons we would ask the now for both the limit that i am understanding just the sort of your justice course that's to be suggesting is if you are if your obstructive act or a mission is in the contacts with some interaction with the i r s not say failing to talk to an accountant on your own time not pain someone in cash in your own home but in some interaction with the i r s that could be a limitation that was limited i think proceeding requirement maybe a little bit broader around the edges maybe a little bit more flexibility but it would be and in substance kin to it and you're using it for will give it its heritage and for other reasons yes if so i think you're suggesting w the word in the statute administration that's the word alright so if i start working with that word do you have on the top of your head two or three cases or something i might read why i think if you look aguilar and if you look at the jury instructions in cases that have interpreted other obstruction statutes that apply to proceedings which is never a defined term in those statutes i don't have a case name for you you'll see that they start to look like things like an audit where you have an individualized assessment or enforcement of some obligation of forcible buys you know power thank you thank you counsel cases submitted