15

‐ 2224

United States v. Marinello

UNITED STATES COURT OF APPEALS 1

FOR THE SECOND CIRCUIT 2

August Term, 2015 3

(Argued: February 11, 2016 Decided: October 14, 2016) 4

Docket No. 15

‐ 2224 5

6

UNITED STATES OF AMERICA, 7

Appellee

, 8

v. 9

CARLO J. MARINELLO, II, 10

Defendant–Appellant

. 11

12

Before: P OOLER and S ACK

, Circuit Judges

, and F AILLA

, District Judge.  1 3

Defendant

‐ appellant Carlo J. Marinello, II appeals from an amended 14

judgment of conviction entered against him on July 14, 2015 by the United States 15

District Court for the Western District of New York (William M. Skretny, J. ). One 16

of the counts of conviction alleged a violation of 26 U.S.C. § 7 212(a) ʹ s ʺ omnibus 1 7

clause, ʺ which criminally penalizes one who ʺ corruptly

. . . obstructs or impedes, 1 8

or endeavors to obstruct or impede, the due administration of ʺ the Internal 1 9

Revenue Code in ways not addressed by other specific provisions of the statute. 20

 Judge Katherine Polk Failla, of the United States District Court for the Southern

District of New York, sitting by designation.15

‐ 2224

United States v. Marinello, II

2 The district court denied Marinello ʹ s motion for an acquittal or a new trial on this 1

count, concluding that the government was not required to establish a pending 2

Internal Revenue Service action and a defendant ʹ s knowledge thereof as part of 3

its burden of proof. We agree and conclude that these criteria are not offense 4

elements under the omnibus clause. We further conclude that a violation of this 5

provision may be predicated on an omission, and that the district court did not 6

procedurally err in determining Marinello ʹ s sentence. The judgment of the 7

district court is therefore: 8

AFFIRMED. 9

J OSEPH M. L A T ONA

, Buffalo, NY, for 10

Defendant–Appellant

. 11

R USSELL T. I PPOLITO

, J R

., Assistant United 12

States Attorney, Buffalo, NY, for William J. 1 3

Hochul, Jr., United States Attorney for the 14

Western District of New York, Appellee

. 1515

‐ 2224

United States v. Marinello, II

3 S ACK

, Circuit Judge : 1

Defendant

‐ appellant Carlo J. Marinello, II, a resident of Erie County in 2

western New York State, owned and operated a freight service that couriered 3

items to and from the United States and Canada. From approximately 1 99 2 4

through 2010, Marinello neither kept corporate books or records nor filed 5

personal or corporate income tax returns. Following an investigation by the 6

Internal Revenue Service (the ʺ IRS ʺ ), he was indicted by a grand jury sitting in 7

the United States District Court for the Western District of New York on nine 8

counts of tax

‐ related offenses that allegedly occurred from 2005 through 200 9

. A 9

jury found him guilty on all counts. He was sentenced to thirty

‐ six months ʹ 10

imprisonment and one year of supervised release, and ordered to pay 11

$ 3 51, 7 6 3 .0 8 to the IRS in restitution. 12

Under one of the counts of conviction, Marinello was charged with 1 3

violating 26 U.S.C. § 7 212(a). One portion of the statute imposes criminal liability 14

on one who ʺ corruptly or by force or threats of force

. . . endeavors to intimidate 15

or impede any officer or employee of the United States acting in an official 16

capacity under this title” (i.e., the Internal Revenue Code). Id. Another portion, 1 7

often referred to as the ʺ omnibus clause, ʺ imposes criminal liability on one who 1 8

ʺ in any other way corruptly

. . . obstructs or impedes, or endeavors to obstruct or 1 915

‐ 2224

United States v. Marinello, II

4 impede, the due administration of this title. ʺ Id. Marinello was charged with 1

violating the omnibus clause. 2

On appeal, Marinello principally argues that we, like the Sixth Circuit 3

addressing the same issue, should construe the phrase ʺ the due administration of 4

this title ʺ in the omnibus clause to include only a pending IRS action of which a 5

defendant was aware. He contends that his conviction under section 7 212(a) 6

cannot stand under this construction because the government offered no 7

evidence at trial that he knew of a pending IRS investigation against him at the 8

time of the actions on which the conviction was based. He also argues that a 9

conviction under the omnibus clause cannot be premised on a defendant ʹ s 10

omission, as it may have been in the case at bar, and that the district court 11

committed procedural error during the sentencing proceedings. 12

We exercise jurisdiction under 1 8 U.S.C. § 37 42(a) and 2 8 U.S.C. § 12 9 1, 1 3

and affirm Marinello ʹ s conviction and sentence. 14



### BACKGROUND 15

Factual Background 16

In 1 99 0, Marinello incorporated Express Courier Group/Buffalo, Inc. 1 7

( ʺ Express Courier ʺ ), a New York corporation. Express Courier maintained a 1 815

‐ 2224

United States v. Marinello, II

5 freight service that couriered documents and packages between the United States 1

and Canada. Despite owning and managing the company, Marinello maintained 2

little documentation of his business income or expenses. He shredded or 3

discarded most of the business ʹ s records, including bank account statements, 4

employee work statements, gas receipts, and bills. Marinello paid his employees 5

in cash and did not issue them (or himself) tax documents such as familiar Form 6

10 99 s or Form W

‐ 2s. He often used Express Courier ʹ s funds for personal 7

purposes, including mortgage payments on his residence (made indirectly 8

through weekly cash contributions to his wife) and monthly payments to his 9

mother ʹ s senior living center. 10

In December 2004, the IRS received an anonymous letter purporting to 11

outline some of Marinello ʹ s business practices and accusing him of tax evasion. 12

IRS Special Agent Angela Klimczak was assigned to investigate those allegations. 1 3

Upon reviewing its own records, the IRS discovered that, from at least 1 99 2 14

onward, Marinello failed to file personal or corporate income tax returns. 15

Ultimately, Agent Klimczak recommended that the investigation be closed 16

because the IRS could not at that time determine whether the unreported income 1 7

was significant. Marinello had no knowledge of this investigation. 1 815

‐ 2224

United States v. Marinello, II

6 In 2005, Marinello sought the advice of counsel, whom he informed of his 1

failure to file his tax returns. Counsel told Marinello that this failure to file was 2

improper and referred him to an accounting firm for a consultation. Allan 3

Wiegley, a certified public accountant at that firm, told Marinello that he needed 4

to provide records of business receipts and expenses in order to pay corporate 5

taxes with respect to Express Courier and its business. Marinello was unable to 6

do so: He had destroyed or failed to keep the documents. 7

Marinello met with Wiegley again the following year to discuss a different 8

matter. During the meeting, Marinello stated that he had made no progress in 9

gathering Express Courier ʹ s business records. Wiegley declined to enter into a 10

contract to perform accounting services for Express Courier or Marinello because 11

there was inadequate documentation for him to prepare a corporate tax return. 12

Despite the advice from counsel and two meetings with Wiegley, Marinello did 1 3

not begin maintaining books and records for Express Courier. 1415

‐ 2224

United States v. Marinello, II

7 In each of the years 2005 through 200 8

, Express Courier had generated 1

annual total gross receipts of between $200, 7 1 8

. 88 and $445,1 8 4. During each of 2

those years, Marinello took approximately $26,000 to $50,000 from Express 3

Courier ʹ s business account and spent it in payment of his personal expenses. 4

The IRS re

‐ opened its investigation of Marinello in 200 9

. On June 1, 200 9

, 5

Agent Klimczak conducted an interview of Marinello at his home. He told her 6

that he could not recall the last time he had filed an income tax return. He 7

initially maintained that he did not file tax returns because he thought they were 8

not required for persons who made less than $1,000 per year. He eventually 9

admitted that he had earned more than that amount annually and should have 10

paid taxes, but ʺ never got around to it. ʺ Testimony of Angela Klimczak, August 11

6, 2014, Trial Transcript ( ʺ Trial Tr. ʺ ) at 1 7 2 (App ʹ x 1 8 1). He stated that he used 12

business income (by cashing checks from Express Courier ʹ s customers and 1 3

depositing a portion of them into his personal bank account) as well as his 14

business bank account to pay for personal expenses. He confirmed that he 15

shredded bank statements and that he did not keep track of Express Courier ʹ s 16

income or expenses. He also remembered telling an accountant that he shredded 1 7

most of his business records. Marinello explained that he destroyed these 1 815

‐ 2224

United States v. Marinello, II

8 documents because ʺ that ʹ s what [he had] been doing all along ʺ and that he ʺ took 1

the easy way out. ʺ Id. at 1 9 4 (App ʹ x 20 3 ). 2

Procedural History 3

On October 16, 2012, in the United States District Court for the Western 4

District of New York, Marinello was charged in a superseding indictment with 5

corruptly endeavoring to obstruct and impede the due administration of the 6

Internal Revenue laws, in violation of 26 U.S.C. § 7 212(a) (Count One), and 7

willfully failing to file individual and corporate tax returns for calendar years 8

2005 through 200 8

, in violation of 26 U.S.C. § 7 20 3 (Counts Two through Nine). 9

Count One alleged that Marinello had violated section 7 212(a) by, ʺ among other 10

thing[s] ʺ : 11

(1) failing to maintain corporate books and records for 12

[Express Courier] of which the defendant was an 1 3

employee, officer, owner and operator; 14

(2) failing to provide the defendant ʹ s accountant with 15

complete and accurate information related to the 16

defendant ʹ s personal income and the income of 1 7

Express Courier; 1 8

( 3 ) destroying, shredding and discarding business 1 9

records of Express Courier; 20

(4) cashing business checks received by Express Courier 21

for services rendered; 2215

‐ 2224

United States v. Marinello, II

9 (5) hiding income earned by Express Courier in 1

personal and other non

‐ business bank accounts; 2

(6) transferring assets to a nominee; 3

( 7 ) paying employees of Express Courier with cash; and 4

( 8 ) using business receipts and money from business 5

accounts to pay personal expenses, including the 6

mortgage for the residence in which the defendant 7

resided and expenses related to the defendant ʹ s 8

mother ʹ s care at a senior living center. 9

Superseding Indictment, dated October 16, 2012, at 1

‐ 2 (App ʹ x 7 5

‐ 7 6) (formatting 10

altered). 1 11

Before trial, Marinello sought an instruction that ʺ the jury

. . . be 12

unanimous on at least one of the means under which the government

. . . alleged 1 3

[that] [he] ha[d] violated [title 26 section 7 212(a)] ʺ in order to convict him of that 14

offense. Defendant ʹ s Requested Jury Instruction, dated September 25, 2012, at 1 15

(App ʹ x 41). If any juror harbored a reasonable doubt on any one of the means 16

alleged, the instruction required an acquittal on Count One. Id. The government 1 7

1 The original indictment alleged a ninth means of corrupt obstruction under Count

One: ʺ failing to file with the [IRS] personal income tax returns and corporate tax returns

for Express Courier. ʺ Indictment, dated February 14

, 2012

, at 2 (App ʹ x 25 ). In response

to Marinello ʹ s motion to strike this allegation as duplicitous of the remaining counts of

the indictment, the government filed the superseding indictment, which removed it.15

‐ 2224

United States v. Marinello, II

10 opposed this proposal as a misstatement of the law, contending that it was not 1

required to prove all of the means specified in Count One. 2

At a pre

‐ trial conference, the district court (William M. Skretny, Judge ) 3

reserved ruling on the proposed jury instruction until trial. During that 4

conference, Marinello ʹ s counsel represented that there was ʺ no question [that 5

Marinello] did not file his tax returns, corporate and personal, ʺ and that he had 6

advised Marinello ʺ to take a plea ʺ to Counts Two through Nine. See Transcript 7

of pre

‐ trial conference, October 4, 2012, at 2 (App ʹ x 60). But Marinello declined to 8

plead guilty to Count One, a felony. App ʹ x 60

‐ 61. 9

Marinello subsequently moved for submission to the jury of a special 10

verdict form requiring the jury to indicate whether it found him guilty or not 11

guilty regarding each of the eight means of violating section 7 212(a) alleged in 12

Count One of the superseding indictment. By text order, the district court 1 3

deferred ruling on this request until trial. 14

At trial, defense counsel conceded that Marinello did not file his tax 15

returns 2 but argued that Marinello could not be convicted on Count One because 16

2 The parties further stipulated that Marinello did not file with the IRS personal tax

returns or corporate tax returns for Express Courier for tax periods 1 99 2 through 2010

. August 6

, 2014 Trial Tr. at 64 (App ʹ x 140 ).15

‐ 2224

United States v. Marinello, II

11 he lacked the requisite criminal intent under section 7 212(a), inasmuch as he did 1

not ʺ corruptly ʺ obstruct or impede the administration of the Internal Revenue 2

Code. 3 Defense counsel further argued that Marinello must have affirmatively 3

ʺ do[ne] something, ʺ ʺ [l]ike file a phony return, ʺ to be guilty of this offense. 4

August 6, 2014 Trial Tr. at 55 (App ʹ x 1 3 2). 5

Over Marinello ʹ s objection, the district court declined to instruct the jury 6

that it had to unanimously agree on at least one of the eight specified means by 7

which Marinello allegedly violated section 7 212(a) to find him guilty under that 8

section. No special verdict form was provided to the jury with respect to this 9

offense. Instead, the district court instructed the jury as to the underlying means 10

contained in Count One as follows: 11

[T]he indictment alleges multiple methods in which the 12

crime [of violating section 7 212(a) ʹ s omnibus clause] can 1 3

be committed, but the government does not have to 14

prove all of them for you to return a guilty verdict on 15

this charge. Proof beyond a reasonable doubt of any 16

one of the obstructive acts listed in the indictment is 1 7

enough. To return a guilty verdict, all 12 of you must 1 8

agree that at least one of these has been proved. 1 9

3 As to the remaining counts, Marinello argued that he was not guilty because the

government could not prove he ʺ willfully ʺ failed to file his tax returns. August 6

, 2014

Trial Tr. at 50 (App ʹ x 12 7). See 26 U.S.C. § 7 20 3 ( ʺ Any person required under this title

. . . to make a return

. . . who willfully fails to

. . . make such return

. . . shall, in addition

to other penalties provided by law, be guilty of a misdemeanor

. . . . ʺ ).15

‐ 2224

United States v. Marinello, II

12 However, all of you need not agree that the same one 1

has been proved. 2

August 11, 2014 Trial Tr. at 4 7 1 (App ʹ x 4 33 ). 3

The jury convicted Marinello on all counts. He then moved for a judgment 4

of acquittal or a new trial under Federal Rules of Criminal Procedure 2 9 and 33

, 5

respectively, which the government opposed. 4 Marinello argued, inter alia

, that 6

the phrase ʺ the due administration of this title ʺ in section 7 212(a) refers 7

exclusively to pending IRS investigations, and that a defendant may be convicted 8

under the statute only if he knowingly interferes with such an investigation. 9

Employing that construction of the statute, which the Sixth Circuit had 10

previously adopted in United States v. Kassouf

, 144 F. 3 d 9 52 (6th Cir. 1 998 ), 11

Marinello contended that he should be acquitted because there was no evidence 12

that he had become aware of the IRS ʹ s investigation until his June 1, 200 9

, 1 3

interview with Agent Klimczak, which occurred after the offense conduct alleged 14

in the superseding indictment had already taken place. 15

The district court declined to construe section 7 212(a) that narrowly. 16

Noting that a later panel of the Sixth Circuit had limited Kassouf to its facts, and 1 7

4 Before the defense rested at trial, Marinello also made a motion pursuant to Rule 2 9,

which was denied by oral order.15

‐ 2224

United States v. Marinello, II

1 3 that other courts had declined to follow the Kassouf court ʹ s reasoning, the district 1

court concluded that ʺ [k]nowledge of a pending [IRS] investigation is not an 2

essential element of the crime. ʺ Decision and Order at 6

‐ 7

, United States v. 3

Marinello

, No. 12 Cr. 5 3 S (W.D.N.Y. June 26, 2015) (App ʹ x 54 9

‐ 50) (citing United 4

States v. Bowman

, 1 73 F. 3 d 5 9 5, 600 (6th Cir. 1 999 ) and United States v. Willner

, No. 5

0 7 Cr. 1 83 (GEL), 200 7 WL 2 9 6 37 11, at *4, 200 7 U.S. Dist. LEXIS 7 55 97

, at *10

‐ 11 6

(S.D.N.Y. Oct. 11, 200 7 ) (collecting cases)). In the court ʹ s view, ʺ [t]he jury was 7

entitled to infer

. . . that Marinello acted corruptly to impede or obstruct the due 8

administration of the Internal Revenue laws ʺ by otherwise hindering the 9

collection of taxes due. Id. at 6 (App ʹ x 54 9 ). 10

In the defendant ʹ s Presentence Investigation Report (the ʺ PSR ʺ ), the 11

Probation Office calculated the total tax loss from Marinello ʹ s activities as 12

approximately $5 98 ,215.5 3 by applying a percentage

‐ based formula to his gross 1 3

income from 2005 through 200 8

. See U.S. Sentencing Guidelines 14

Manual (hereinafter, ʺ U.S.S.G. ʺ ) § 2T1.1(c)(2)(A) (U.S. Sentencing Comm ʹ n 2014) 15

(indicating that this formula should be used ʺ unless a more accurate 16

determination of the tax loss can be made ʺ ). The total tax loss resulted in a base 1 7

offense level of twenty. See U.S.S.G. §§ 2T1.1(a)(1), 2T4.1(H)

‐ (I) (specifying, for 1 815

‐ 2224

United States v. Marinello, II

14 offenses involving willful failure to file returns, a base offense level of 20 where 1

the tax loss is ʺ [m]ore than $400,000 ʺ but not more than $1,000,000). A two

‐ level 2

enhancement to the base offense level was applied because Marinello ʹ s 3

conviction under Count One implicated an adjustment for obstructing or 4

impeding the administration of justice. See U.S.S.G. § 3 C1.1. Marinello was also 5

deemed ineligible for the two

‐ level reduction for acceptance of responsibility. 6

See U.S.S.G. § 3 E1.1(a). In the view of the Probation Office, Marinello had not 7

clearly demonstrated an acceptance of responsibility for his offense conduct in 8

part because he continued to decline to accept responsibility for the obstruction 9

charge and insisted there was a legal basis to contest this issue. Thus, with a 10

criminal history category of one and a total offense level of twenty

‐ two, 11

Marinello ʹ s advisory Guidelines range for sentencing was forty

‐ one to fifty

‐ one 12

months. The Probation Office also determined that Marinello owed the IRS 1 3

$ 33 1, 3 4 8 .0 8 in corporate income taxes and $20,415 in personal income taxes from 14

2005 to 200 8

, and recommended that those amounts be imposed by the court ʹ s 15

restitution order. 16

Marinello filed objections to the findings in the PSR, two of which are 1 7

relevant to this appeal. First, he argued that the tax loss and restitution amounts 1 815

‐ 2224

United States v. Marinello, II

15 were incorrectly calculated. According to Marinello, ʺ a more accurate 1

determination of tax loss c[ould] be made ʺ based on the actual corporate and 2

personal tax returns he ultimately filed, years after the fact, for tax years 2005 3

through 200 8

. Objections to the [PSR] and Statement With Respect to Sentencing 4

Factors, dated January 14, 2015, at 2

‐ 3 (App ʹ x 514

‐ 15) (quoting U.S.S.G. 5

§ 2T1.1(c)(2)(A) (emphasis removed)). These returns reflected a tax loss of only 6

$4 8

, 89 0, which would have yielded a base offense level of fourteen instead of 7

twenty. See U.S.S.G. § 2T4.1(E). Marinello further asserted that any restitution 8

was also capped at the $4 8

, 89 0 amount. 9

Second, Marinello urged that the two

‐ level reduction for acceptance of 10

responsibility was applicable. 5 He argued that his conduct merited the reduction 11

because he admitted to keeping poor business records and not paying his taxes; 12

was previously willing to plead to the misdemeanor Counts Two through Nine; 1 3

and proceeded to trial only to preserve a dispute concerning whether he could be 14

held criminally liable under the section 7 212(a) obstruction charge. 15

5 Marinello did not argue that he was eligible for an additional one

‐ level reduction

under U.S.S.G. § 3E 1

. 1 (b), nor does he make any argument with respect to this

provision on appeal.15

‐ 2224

United States v. Marinello, II

16 In response, the government asserted that there were a variety of 1

inaccuracies in Marinello ʹ s proffered tax returns (such as using an incorrect filing 2

status and improperly claiming his mother as a dependent), which rendered 3

them unreliable for purposes of calculating either an alternative tax loss or 4

restitution amount. The government further contended that the two

‐ level 5

reduction for acceptance of responsibility was inapplicable because Marinello 6

was evasive during his discussions with Agent Klimczak at the June 1, 200 9

, 7

interview, disputed that he acted with the requisite mens rea to be convicted 8

under Count One, and stated at the time the PSR was prepared that he did not 9

accept responsibility for the obstruction charge. 10

In his reply brief, Marinello did not address any of the alleged inaccuracies 11

the government highlighted in his tax returns. He continued to argue, however, 12

that he deserved the reduction for acceptance of responsibility. 1 3

During Marinello ʹ s sentencing proceedings, the district court concluded 14

that Marinello ʹ s alternative calculation of the tax loss and restitution at issue 15

could not be used in light of the discrepancies the government identified in his 16

proffered tax returns. The court therefore adopted the Probation Office ʹ s 1 7

calculations of those figures and denied Marinello ʹ s first objection. His second 1 815

‐ 2224

United States v. Marinello, II

1 7 objection concerning the acceptance of responsibility reduction was also denied 1

based on the court ʹ s view that his case was not one of the ʺ rare ʺ situations 2

specified in the Guidelines where the reduction is appropriate even though the 3

defendant exercised his constitutional right to proceed to trial. Transcript of 4

Sentencing ( ʺ Sentencing Tr. ʺ ), July 1, 2015, at 12 (App ʹ x 566) (applying U.S.S.G. 5

§ 3 E1.1 cmt. 2). 6

Marinello addressed the court prior to sentencing. He stated that he 7

realized he had made a mistake, but that he did not accept the over half million 8

dollar tax loss calculation by ʺ a probation officer who probably without using an 9

adding machine can ʹ t add a column of numbers together. ʺ Id. at 1 9 (App ʹ x 5 73 ). 10

After the district court observed that Marinello ʺ expressed no remorse 11

whatsoever, ʺ Marinello responded: 12

I have complete remorse. I have absolutely complete 1 3

remorse. I was overwhelmed by the job. I was 14

overwhelmed by everything. Business went—turned 15

south. And I tried to keep the company afloat. 16

I ʹ m 6 9 years of age. I should be retired, and I ʹ m 1 7

working every day of the week. Every month the [IRS] 1 8

gets a check. 1 915

‐ 2224

United States v. Marinello, II

1 8 Id. at 20 (App ʹ x 5 7 4). The government underscored that the defendant ʹ s 1

comments demonstrated that he clearly did not accept responsibility for his 2

actions. 3

Adopting the criminal history category, total offense level, and Guidelines 4

range recommended by the Probation Office, the district court imposed a below

‐ 5

Guidelines sentence of thirty

‐ six months ʹ imprisonment and one year of 6

supervised release. The district court also imposed restitution in the amount of 7

$ 3 51, 7 6 3 .0 8

, as recommended by the Probation Office. Following the entry of an 8

amended judgment, this timely appeal followed. 9



### DISCUSSION 10

Marinello makes three arguments on appeal. First, he urges us to adopt 11

the Sixth Circuit ʹ s interpretation of the phrase ʺ the due administration of this 12

title ʺ in section 7 212(a), as set forth in United States v. Kassouf

, 144 F. 3 d 9 52 (6th 1 3

Cir. 1 998 ), which requires the prosecution to establish the defendant ʹ s knowledge 14

of a pending IRS action 6 in order to support a conviction under the omnibus 15

clause. Marinello seeks reversal of his conviction on Count One and dismissal of 16

6 Marinello ʹ s argument presumably encompasses any pending IRS action and not only

an IRS investigation or proceeding concerning the defendant charged with the omnibus

clause violation, although he does not clarify this point in his appellate briefs.15

‐ 2224

United States v. Marinello, II

1 9 that count from the superseding indictment because there is no evidence that he 1

knew of the IRS ʹ s investigation while engaging in the offense conduct alleged. 2

Second, Marinello contends that a violation of the omnibus clause must be 3

premised on an underlying affirmative act, not on an omission. Because the 4

district court did not charge the jury with the unanimity instruction he requested 5

or provide it with the special verdict form he suggested, he maintains that his 6

conviction on Count One could have been improperly based on either of the two 7

omissions alleged in the indictment: failure to keep Express Courier ʹ s books and 8

records, and failure to provide complete records of personal and corporate 9

income to his accountant. He seeks reversal and remand for a new trial on that 10

ground if his conviction under section 7 212(a) is not otherwise vacated. 11

Third, Marinello argues that vacatur and remand for resentencing is 12

required because the district court procedurally erred in imposing his sentence. 1 3

In his view, the district court impermissibly rejected his proffered tax returns as a 14

measure of the tax loss and restitution amounts without further inquiry by way 15

of an evidentiary hearing or supplemental briefing. He also asserts that he was 16

entitled to the two

‐ level reduction to his base offense level for acceptance of 1 715

‐ 2224

United States v. Marinello, II

20 responsibility because he offered to plead guilty to the eight counts of willful 1

failure to file tax returns. 2

I. Standard of Review 3

A district court ʹ s interpretation of a federal criminal statute is a question of 4

law subject to de novo review by the Court of Appeals. United States v. Aleynikov

, 5

6 7 6 F. 3 d 7 1, 7 6 (2d Cir. 2012). A defendant ʹ s challenge to a jury instruction is also 6

reviewed de novo

. United States v. Sabhnani

, 5 99 F. 3 d 215, 2 37 (2d Cir. 2010). We 7

will conclude that the district court committed reversible error if its instruction 8

ʺ either fails to adequately inform the jury of the law, or misleads the jury as to 9

the correct legal standard. ʺ Id. (quoting United States v. Quattrone

, 441 F. 3 d 15 3

, 10

1 77 (2d Cir. 2006)). 11

We review the procedural reasonableness of a sentence ʺ under a 12

ʹ deferential abuse

‐ of

‐ discretion standard. ʹʺ United States v. Jesurum

, 8 1 9 F. 3 d 66 7

, 1 3

6 7 0 (2d Cir. 2016) (quoting Gall v. United States

, 552 U.S. 38

, 41 (200 7 )). A district 14

court commits procedural error if, as relevant here, it ʺ fails to calculate (or 15

improperly calculates) the Sentencing Guidelines range ʺ or ʺ selects a sentence 16

based on clearly erroneous facts. ʺ United States v. Chu

, 7 14 F. 3 d 7 42, 7 46 (2d Cir. 1 7

201 3 ) (quoting United States v. Robinson

, 7 02 F. 3 d 22, 38 (2d Cir. 2012)). Decisions 1 815

‐ 2224

United States v. Marinello, II

21 as to the procedures used to resolve sentencing disputes, including disputes 1

concerning an order of restitution, are reviewed for abuse of discretion, United 2

States v. Maurer

, 226 F. 3 d 150, 151

‐ 52 (2d Cir. 2000) (per curiam) (citing United 3

States v. Slevin

, 106 F. 3 d 10 8 6, 10 9 1 (2d Cir. 1 99 6)), and ʺ are within the district 4

court ʹ s discretion so long as the defendant is given an adequate opportunity to 5

present his position, ʺ Sabhnani

, 5 99 F. 3 d at 25 7

‐ 5 8

. 6

II. A Pending IRS Action and a Defendant ʹ s Knowledge of That Action 7

Are Not Offense Elements Under 26 U.S.C. § 7212(a) ʹ s Omnibus 8

Clause 9

Section 7 212(a) criminalizes certain ʺ [a]ttempts to interfere with [the] 10

administration of internal revenue laws. ʺ Under section 7 212(a), 11

[w]hoever [1] corruptly or by force or threats of force 12

(including any threatening letter or communication) 1 3

endeavors to intimidate or impede any officer or 14

employee of the United States acting in an official 15

capacity under this title, or [2] in any other way corruptly 16

or by force or threats of force (including any threatening 1 7

letter or communication) obstructs or impedes, or 1 8

endeavors to obstruct or impede, the due administration of 1 9

this title

, shall, upon conviction thereof, be [fined or 20

imprisoned, or both]. 21

26 U.S.C. § 7 212(a) (emphases added). The first clause addresses conduct 22

specifically directed toward federal officers or employees in the discharge of 2 3

their duties under Title 26 of the United States Code—the Internal Revenue 2415

‐ 2224

United States v. Marinello, II

22 Code. The second clause, the ʺ omnibus clause, ʺ is a catch

‐ all provision that 1

criminalizes ʺ any other way ʺ of corruptly obstructing or impeding the due 2

administration of the Internal Revenue Code. The term ʺ corruptly ʺ within the 3

meaning of this section encompasses conduct that has ʺ the intent to secure an 4

unlawful advantage or benefit either for one ʹ s self or for another. ʺ United States 5

v. Parse

, 789 F. 3 d 83

, 121 (2d Cir. 2015) (quoting United States v. Kelly

, 14 7 F. 3 d 6

1 7 2, 1 77 (2d Cir. 1 998 )). 7

Marinello asks that we conclude, as the Sixth Circuit did in Kassouf

, that 8

the statutory phrase ʺ the due administration of this title ʺ under the omnibus 9

clause refers exclusively to pending IRS investigations or proceedings, of which a 10

defendant must have knowledge in order to corruptly obstruct or impede them. 11

For the reasons that follow, we decline to adopt this construction. 12

In Kassouf

, the defendant was charged with corruptly endeavoring to 1 3

obstruct and impede the due administration of the tax laws, in violation of 14

section 7 212(a). 144 F. 3 d at 9 5 3

. He allegedly failed to maintain partnership 15

books and records, transferred business funds into various bank accounts for 16

personal expenditures, and filed false tax returns that did not disclose substantial 1 7

assets. Id. at 9 5 3 & n.1. The district court granted the defendant ʹ s motion to 1 815

‐ 2224

United States v. Marinello, II

2 3 dismiss the section 7 212(a) count from the indictment for failure to state an 1

offense, finding that the government had not alleged as elements of the crime 2

that the defendant had knowledge of a pending IRS proceeding or investigation. 3

See id. at 9 54. On appeal, the Sixth Circuit affirmed, agreeing with the district 4

court that ʺ due administration of the Title requires some pending IRS action ʺ

— 5

such as ʺ subpoenas, audits or criminal tax investigations ʺ

— ʺ of which the 6

defendant was aware. ʺ Id. at 9 5 7 & n.2. 7

The Sixth Circuit based its conclusion on a comparison of the omnibus 8

clause with another statute, 1 8 U.S.C. § 150 3

. See id. at 9 5 7

. Section 150 3

, entitled 9

ʺ Influencing or injuring officer or juror generally, ʺ provides in relevant part: 10

Whoever corruptly, or by threats or force, or by any 11

threatening letter or communication, endeavors to 12

influence, intimidate, or impede any grand or petit 1 3

juror, or officer in or of any court of the United States, 14

or officer who may be serving at any examination or 15

other proceeding before any United States magistrate 16

judge or other committing magistrate, in the discharge 1 7

of his duty, or injures any such grand or petit juror in 1 8

his person or property on account of any verdict or 1 9

indictment assented to by him, or on account of his 20

being or having been such juror, or injures any such 21

officer, magistrate judge, or other committing 22

magistrate in his person or property on account of the 2 3

performance of his official duties, or corruptly or by 24

threats or force, or by any threatening letter or 25

communication, influences, obstructs, or impedes, or 2615

‐ 2224

United States v. Marinello, II

24 endeavors to influence, obstruct, or impede, the due 1

administration of justice

, shall be punished as provided in 2

subsection (b). 3

1 8 U.S.C. § 150 3 (a) (emphasis added). Relying on the similarities between the 4

texts of section 150 3 (a) and section 7 212(a), the Sixth Circuit consulted case law 5

interpreting section 150 3 for guidance on how to construe ʺ the due 6

administration of this title ʺ under section 7 212(a). See Kassouf

, 14 7 F. 3 d at 9 56

‐ 5 8

. 7

In particular, the Sixth Circuit looked to United States v. Aguilar

, 515 U.S. 5 93 8

(1 99 5), a decision addressing the scope of offense conduct covered by section 9

150 3 (a) ʹ s broad prohibition on corrupt efforts to influence, obstruct, or impede 10

the due administration of justice, see id. at 5 98

‐ 600. In Aguilar

, the Supreme Court 11

limited this provision ʹ s reach by imposing ʺ a ʹ nexus ʹ requirement ʺ : To be found 12

guilty of this offense, the ʺ action taken by the accused must be with an intent to 1 3

influence judicial or grand jury proceedings. ʺ Id. at 5 99 ; see also id. (describing 14

the nexus requirement as ʺ a relationship in time, causation, or logic ʺ between the 15

defendant ʹ s offense conduct and a judicial proceeding). In so deciding, the 16

Supreme Court appeared to assume that ʺ the due administration of justice ʺ 1 7

under section 150 3 (a) only applied to pending grand jury or judicial proceedings, 1 815

‐ 2224

United States v. Marinello, II

25 in line with the way courts have previously read this statutory phrase. 7 See id. 1

The Supreme Court ʹ s decision was motivated by a concern that section 150 3 (a) 2

could sweep too broadly: Not just ʺ any act, done with the intent to obstruct the 3

due administration of justice, is sufficient to impose criminal liability ʺ ; otherwise, 4

the connection between a defendant ʹ s corrupt endeavors and a judicial 5

proceeding could be too attenuated. See id. at 602 (emphasis in original) (ellipsis 6

and internal quotation marks removed). Instead, in order to be convicted of 7

corruptly interfering with the due administration of justice under section 150 3 (a), 8

a defendant must be aware that his conduct is ʺ likely to affect the judicial 9

proceeding. ʺ Id. at 5 99

. 10

Deeming Aguilar ʹ s analysis of section 150 3 (a) to be instructive, including 11

the Supreme Court ʹ s implicit adoption of the longstanding reading of ʺ the due 12

administration of justice, ʺ 8 the Sixth Circuit interpreted by analogy ʺ the due 1 3

administration of this title ʺ under section 7 212(a) to require, as offense elements, 14

7 See, e.g.

, United States v. Bashaw

, 98 2 F. 2 d 16 8, 1 7 0 ( 6 th Cir. 1 99 2 ) ( ʺ Because section

150 3 is intended to protect the administration of justice in federal court and those

participating therein, due administration of justice has been interpreted as extending

only to pending judicial proceedings. ʺ (internal quotation marks and citation omitted)).

8 The independent meaning of ʺ the due administration of justice, ʺ however, was never

at issue in Aguilar— in fact, the defendant there was charged with ʺ corruptly

endeavor[ing] to influence, obstruct, and impede [a] grand jury investigation

. ʺ See id. at

5 98

‐ 99 (emphasis added).15

‐ 2224

United States v. Marinello, II

26 that a defendant (1) have knowledge of (2) ʺ some pending IRS action. ʺ Kassouf

, 1

144 F. 3 d at 9 56

‐ 5 7

. Noting again the similar language contained in the two 2

statutes, the court used a canon of construction to find that this similarity 3

permitted it to infer that Congress meant for section 7 212(a) to apply to 4

analogous situations. See id. at 9 5 7

‐ 5 8 (applying the ʺ canon of statutory 5

construction that courts will presume that Congress knew of the prevailing law 6

when it enacted the statute ʺ at issue). The court also expressed its concern that, 7

were the omnibus clause not limited to pending IRS actions, a defendant could 8

be subject to undefined ʺ liability for conduct which was legal (such as failure to 9

maintain records) and occurred long before an IRS audit, or even a tax return 10

was filed. ʺ Id. at 9 5 7 ; see also id. at 9 5 8 ( ʺ [I]t would be highly speculative to find 11

conduct such as the destruction of records, which might or might not be needed, 12

in an audit which might or might not ever occur, is sufficient to make out an 1 3

omnibus clause violation. ʺ (citation omitted)). The court then affirmed the 14

dismissal of the disputed count of the indictment on the basis of the rule it had 15

enunciated. 9 Id. at 9 60. 16

9 Judge Daughtrey dissented from the majority ʹ s conclusion in this regard, noting that

no other circuit at the time had required that a defendant knowingly obstruct or impede15

‐ 2224

United States v. Marinello, II

2 7 We think the Sixth Circuit ʹ s analogy is inapposite. To begin with, the text 1

of section 150 3 (a) is distinguishable from section 7 212(a) in at least two ways. 2

First, section 150 3 (a) ʹ s statutory language focuses principally on grand jury or 3

judicial proceedings. Indeed, its prohibition of corrupt endeavors to influence, 4

obstruct, or impede the due administration of justice ʺ follows a long list of 5

specific prohibitions of conduct that interferes with actual judicial proceedings, ʺ 6

United States v. Wood

, 38 4 F. App ʹ x 6 98

, 7 04 (10th Cir. 2010), cert. denied

, 562 U.S. 7

1225 (2011); accord Willner

, 200 7 WL 2 9 6 37 11, at *4, 200 7 U.S. Dist. LEXIS 7 55 97

, at 8

*11; see also United States v. Sorensen

, 8 01 F. 3 d 121 7

, 12 3 2 (10th Cir. 2015) 9

(endorsing the reasoning in Wood ), cert. denied

, 1 3 6 S. Ct. 116 3 (2016). This list— 10

which specifically mentions jurors, officers of the court, magistrate judges, and 11

a pending IRS action in order to be convicted under section 7 212 (a) ʹ s omnibus clause.

Kassouf

, 144 F.3d at 9 60

‐ 61 (Daughtrey, J

., dissenting in part).

Shortly after Kassouf was decided, another panel of the Sixth Circuit suggested its

disapproval of this rule by concluding that ʺ Kassouf must be limited to its precise

holding and facts. ʺ See Bowman

, 1 73 F.3d at 600 ; see also id. at 5 99

‐ 600 (deciding that ʺ an

individual ʹ s deliberate filing of false forms with the IRS specifically for the purpose of

causing the IRS to initiate action against a taxpayer is encompassed within § 7 212 (a) ʹ s

proscribed conduct, ʺ even though ʺ no IRS proceeding or investigation was underway ʺ

when the defendant engaged in the underlying offense conduct). However, the court

has more recently stated to the contrary that the rule articulated in Kassouf remains the

law of the Sixth Circuit. See United States v. Miner

, 77 4 F.3d 33 6

, 3 45 ( 6 th Cir. 2014 )

( ʺ [P]ost

‐ Kassouf and post

‐ Bowman

, a defendant may not be convicted under the omnibus

clause unless he is ʹ acting in response to some pending IRS action of which [he is]

aware. ʹʺ (second brackets in original) (quoting United States v. McBride

, 3 62 F.3d 3 60

, 37 2

( 6 th Cir. 2004 ))), cert. denied

, 1 3 5 S. Ct. 2060 ( 2015 ).15

‐ 2224

United States v. Marinello, II

2 8 committing magistrates, as well as ʺ examination[s] or other proceeding[s] ʺ before 1

a magistrate judge or committing magistrate, ʺ verdict[s], ʺ and ʺ indictment[s] ʺ

— 2

supports a reading that tethers the ʺ due administration of justice ʺ to actual grand 3

jury or judicial proceedings. See 1 8 U.S.C. § 150 3 (a). By contrast, section 7 212(a) 4

does not contain any such reference to IRS actions, investigations, or proceedings 5

that would support analogizing it to section 150 3 (a). Instead, the first part of 6

section 7 212(a) refers broadly to attempts to interfere with officers or employees 7

ʺ acting in an official capacity ʺ under the tax code, 26 U.S.C. § 7 212(a), which 8

suggests that the omnibus provision similarly applies to the full range of these 9

individuals ʹ official duties. 10

Second, and most apparent, the statutes employ different statutory 11

phrases: ʺ the due administration of justice

, ʺ 1 8 U.S.C. § 150 3 (a) (emphasis added), 12

and ʺ the due administration of this title

, ʺ 26 U.S.C. § 7 212(a) (emphasis added). 1 3

This difference indicates that the statutes carry different meanings. See Kassouf

, 14

144 F. 3 d at 9 60 (Daughtrey, J

., dissenting in part) ( ʺ [I]f Congress wished 26 U.S.C. 15

§ 7 212(a) to be interpreted in an identical fashion, identical language would have 16

been inserted into that statute. ʺ ). The plain language of section 7 212(a) ʹ s 1 7

omnibus clause ʺ prohibits any effort to obstruct the administration of the tax code

, 1 815

‐ 2224

United States v. Marinello, II

2 9 not merely of investigations and proceedings conducted by the tax authorities. ʺ 1

Willner

, 200 7 WL 2 9 6 37 11, at *5, 200 7 U.S. Dist. LEXIS 7 55 97

, at *12 (emphasis in 2

original). As the Sixth Circuit noted in Kassouf

, the administration of the Internal 3

Revenue Code ʺ encompass[es] a vast range of activities ʺ : ʺ mailing out internal 4

revenue forms; answering taxpayers ʹ inquiries; receiving, processing, recording 5

and maintaining tax returns, payments and other taxpayers[ ʹ ] submissions; as 6

well as monitoring taxpayers ʹ compliance with their obligations. ʺ 144 F. 3 d at 7

9 56; see also Sorensen

, 8 01 F. 3 d at 12 3 2 ( ʺ [T]he IRS duly administers the internal

‐ 8

revenue laws

. . . [by] carrying out its lawful functions to ascertain income[ and 9

to] compute, assess, and collect income taxes[.] ʺ (internal quotation marks and 10

citation omitted)). In light of these responsibilities, it is apparent that ʺ the IRS 11

does duly administer the tax laws even before initiating a proceeding. ʺ Sorensen

, 12

8 01 F. 3 d at 12 3 2; see Direct Mktg. Ass ʹ n v. Brohl

, 1 3 5 S. Ct. 1124, 112 9 (2015) ( ʺ [T]he 1 3

Federal Tax Code has long treated information gathering as a phase of tax 14

administration procedure that occurs before assessment, levy, or collection. ʺ ). 15

Thus, it is possible to violate section 7 212(a) by corruptly obstructing or 16

impeding the due administration of the Internal Revenue Code ʺ without an 1 715

‐ 2224

United States v. Marinello, II

3 0 awareness of a particular [IRS] action or investigation ʺ (for instance, ʺ by 1

thwarting the annual reporting of income ʺ ). Wood

, 38 4 F. App ʹ x at 7 04. 2

Section 150 3 ʹ s legislative history also makes clear that Congress intended 3

ʺ the due administration of justice ʺ to refer only to grand jury or judicial 4

proceedings; however, no comparable legislative history points to interpreting 5

ʺ the due administration of this title ʺ under section 7 212(a) in a similar manner. A 6

predecessor version of section 150 3 criminalized ʺ corrupt[] endeavors to 7

influence, intimidate, or impede any witness or officer in any court of the United 8

States in the discharge of his duty, or corrupt[]

. . . endeavors to obstruct or 9

impede[] the due administration of justice therein

. ʺ See Pettibone v. United States

, 10

14 8 U.S. 1 97

, 202 (1 893 ) (emphases added) (quoting Rev. Stat., Tit. LXX, ch. 4, 11

§ 5 399 (2d ed. 1 878 )); see also Aguilar

, 515 U.S. at 5 99 (noting that Pettibone 12

ʺ constru[ed] the predecessor statute to § 150 3 ʺ ). Although the word ʺ therein ʺ has 1 3

since been removed from section 150 3 (a), there is no indication by Congress that, 14

in so doing, it intended to fundamentally alter the statute ʹ s meaning. See Willner

, 15

200 7 WL 2 9 6 37 11, at *4, 200 7 U.S. Dist. LEXIS 7 55 97

, at *12 ( ʺ Nothing about the 16

history of revision of [section 150 3 ]

. . . indicates that the elimination of the last 1 7

word [ ʹ therein ʹ ] was intended to affect the meaning. ʺ ). 1 815

‐ 2224

United States v. Marinello, II

3 1 In addition to what we think is a mistaken analogy to section 150 3 (a), we 1

find unpersuasive the vagueness or overbreadth concern identified in Kassouf in 2

support of that court ʹ s construction of the omnibus clause. The Sixth Circuit 3

narrowly interpreted ʺ the due administration of this title ʺ under section 7 212(a) 4

in part based on a concern that, were proof of a defendant ʹ s awareness of a 5

pending IRS action not otherwise required, a defendant could be subject to 6

punishment for engaging in lawful conduct. See Kassouf

, 144 F. 3 d at 9 5 7

‐ 5 8

. But 7

we have already rejected a similar challenge to section 7 212(a) on grounds of 8

vagueness and overbreadth. See Kelly

, 14 7 F. 3 d at 1 7 6 (agreeing with five other 9

circuits concluding that the use of the term ʺ corruptly ʺ in section 7 212(a) does not 10

render this provision unconstitutionally vague or overbroad (citing United States 11

v. Brennick

, 9 0 8 F. Supp. 1004, 1010

‐ 1 3 (D. Mass. 1 99 5))). Moreover, other courts, 12

including the Sixth Circuit, have decided that section 7 212(a) ʹ s ʺ mens rea 1 3

requirement ʺ sufficiently ʺ restricts the omnibus clause ʹ s reach only to conduct 14

that is committed ʹ corruptly. ʹʺ United States v. Miner

, 77 4 F. 3 d 33 6, 3 4 7 (6th Cir. 15

2014) (collecting cases), cert. denied

, 1 3 5 S. Ct. 2060 (2015). 10 16

10 To the extent Kassouf based its vagueness or overbreadth concern on the Supreme

Court ʹ s analysis in Aguilar

, we note that the reliance is likely misplaced. In fashioning

the nexus requirement previously discussed, the Supreme Court suggested that its15

‐ 2224

United States v. Marinello, II

3 2 For those reasons, we decline Marinello ʹ s invitation to adopt the Kassouf 1

rule. Instead, we join three of our sister circuits in concluding that section 2

7 212 (a) ʹ s omnibus clause criminalizes corrupt interference with an official effort 3

to administer the tax code, and not merely a known IRS investigation. See 4

Sorensen

, 8 01 F.3d at 12 3 2 (disagreeing with Kassouf because section 150 3(a) and 5

section 7 212 (a) ʺ are [in]sufficiently similar to apply Aguilar ʹ s reasoning to 6

§ 7 212 (a) ʺ ); United States v. Floyd

, 7 40 F.3d 22

, 3 2 & n. 4 ( 1 st Cir.) (determining that 7

ʺ [a] conviction for violation of section 7 212 (a) does not require proof of either a 8

tax deficiency or an ongoing audit, ʺ and rejecting Kassouf (citations omitted)), 9

cert. denied sub nom. Dion v. United States

, 1 3 5 S. Ct. 124 ( 2014 ); United States v. 10

Massey

, 41 9 F.3d 100 8, 1010 (9th Cir. 2005 ) (stating that ʺ the government need not 11

interpretation of the term ʺ corruptly ʺ under section 150 3(a) adequately addressed any

potential problems of overbreadth, inasmuch as a defendant must be aware that his

conduct is ʺ likely to affect the judicial proceeding. ʺ See 515 U.S. at 5 99; see also id. at 602

(concluding that, ʺ if [a man] knew of a pending investigation and lied to his wife about

his whereabouts at the time of the crime, thinking that an FBI agent might decide to

interview her and that she might in turn be influenced in her statement to the agent by

her husband ʹ s false account of his whereabouts, ʺ the husband could not be convicted

under section 150 3 because his knowledge of the likely effect on a judicial proceeding is

unclear). By raising the specter that the ʺ due administration ʺ of the tax code under

section 7 212 (a) could be too vague or overbroad, however, Kassouf misconstrues

Aguilar ʹ s focus on the mens rea requirement ( ʺ corruptly ʺ ) as also encompassing a focus

on the “due administration” language. We do not read Aguilar as expressing any

concern regarding, much less tying its holding to, the “due administration” language in

section 150 3(a).15

‐ 2224

United States v. Marinello, II

33 prove that the defendant was aware of an ongoing tax investigation to obtain a 1

conviction under § 7 212 (a) ʺ ), cert. denied

, 54 7 U.S. 11 3 2 ( 2006 ). 11 Notably, 2

although we have not explicitly adopted this rule in any previous opinion, we 3

have implicitly applied it by affirming convictions under section 7 212 (a) ʹ s 4

omnibus clause without discussion of the defendant ʹ s awareness of a pending 5

IRS proceeding. See United States v. McLeod

, 251 F.3d 78, 8 0 ( 2 d Cir. 2001 ) 6

(affirming sentence imposed where the defendant helped his clients falsify tax 7

returns), cert. denied

, 5 3 4 U.S. 93 5 ( 2001 ); Kelly

, 14 7 F.3d at 1 7 4

‐ 7 5 (affirming the 8

defendant ʹ s conviction for providing a false agreement to the tax authorities to 9

substantiate a deduction on his tax return). 10

Our conclusion is consistent with at least two other sources. First, in the 11

body of case law that developed within the forty

‐ four years that elapsed between 12

section 7 212 ʹ s enactment in 1 9 54 12 and Kassouf ʹ s issuance in 1 998

, the government 1 3

assures us (and we have found no reason to doubt) that no court had limited the 14

11 In addition to the First, Ninth, and Tenth Circuits, the Eleventh Circuit, in a decision

that predates Kassouf

, upheld an attorney ʹ s conviction under section 7 212 (a) ʹ s omnibus

clause for creating a corporation to ʺ disguise the character of [a client ʹ s] illegally earned

income and repatriate it, ʺ even where the attorney had no knowledge that his client was

engaged in a ʺ sting operation ʺ with the government against him. See United States v.

Popkin

, 9 4 3 F. 2 d 15 3 5

, 15 3 6

‐ 37, 1541 ( 11 th Cir. 1 99 1 ), cert. denied

, 50 3 U.S. 1004 ( 1 99 2 ).

12 See Act of Aug. 16

, 1 9 54

, ch. 73 6

, 6 8A Stat. 8 55

.15

‐ 2224

United States v. Marinello, II

3 4 omnibus clause ʹ s application to the corrupt obstruction or impediment of a 1

known and pending IRS action. See Appellee ʹ s Br. at 1 9

. To the contrary, 2

contemporary model jury instructions for use outside of the Sixth Circuit do not 3

include these criteria as elements of the offense. See 3 Leonard B. Sand et al., 4

Modern Federal Jury Instructions: Criminal ¶ 5 9 .05, Instruction 5 9

‐ 3 2 & cmt. (2016) 5

(containing pattern instructions or formulations for a violation of section 6

7 212(a) ʹ s omnibus clause in the First, Seventh, Tenth, and Eleventh Circuits). 7

Second, the Department of Justice ʹ s internal tax division policy states that 8

the omnibus clause may be used ʺ to prosecute a person who, prior to any audit or 9

investigation

, engaged in large

‐ scale obstructive conduct involving the tax 10

liability of third parties. ʺ U.S. Dep ʹ t of Justice, Criminal Tax Manual § 1 7 .0 3 (2012 11

ed.), https:// www.justice.gov/ sites/ default/ files/ tax/ legacy/ 201 3 / 05/ 14/ 12

CTM%20Chapter%201 7 .pdf (last visited August 1, 2016) (emphasis added), 1 3

archived at https://perma.cc/QWW4

‐ DTJL. Pursuant to this policy, a defendant 14

may be charged under the omnibus clause in the absence of a pending IRS action. 15

See also id. § 1 7 .04 ( ʺ To establish a Section 7 212(a) omnibus clause violation, the 16

government must prove beyond a reasonable doubt that the defendant in any 1 715

‐ 2224

United States v. Marinello, II

3 5 way (1) corruptly (2) endeavored ( 3 ) to obstruct or impede the due 1

administration of the Internal Revenue Code. ʺ ). 2

Because we conclude that, under section 7 212(a), ʺ the due administration 3

of this title ʺ is not limited to a pending IRS investigation or proceeding of which 4

the defendant had knowledge, we reject Marinello ʹ s first argument as without 5

merit. 1 3 6

1 3 In his reply brief, Marinello also raises for the first time an argument that the

enactment of a statute in 2002 prohibiting the knowing destruction, alteration, or

falsification of records ʺ with the intent to impede, obstruct, or influence the

investigation or proper administration of any matter within the jurisdiction of any

department or agency of the United States

. . . , or in relation to or contemplation of any

such matter

, ʺ 1 8 U.S.C. § 151 9 (emphasis added), demonstrates that Congress employs

specific language when it prohibits conduct ʺ not predicated upon the existence of any

federal action or proceeding, ʺ Appellant ʹ s Reply Br. at 9. Marinello points to the

absence of similar language in 26 U.S.C. § 7 212 (a) prohibiting corrupt obstruction or

impediment ʺ in relation to or contemplation of ʺ an IRS action—which Congress did not

add to section 7 212 (a) in 2002 —as support for his theory that a defendant ʹ s knowledge

of such a pending action is required to violate the omnibus clause. Ordinarily, we do

not address an argument that the district court has not previously considered. See In re

Nortel Networks Corp. Sec. Litig.

, 5 39 F.3d 12 9, 1 3 2 ( 2 d Cir. 200 8) ( per curiam ); Allianz Ins.

Co. v. Lerner

, 416 F.3d 10 9, 114 ( 2 d Cir. 2005 ). Even if we did so here, however, we have

found no authority that supports Marinello ʹ s attempt to create offense elements by

contrasting 1 8 U.S.C. § 151 9 with 26 U.S.C. § 7 212 (a). Moreover, ʺ Congressional

inaction, ʺ such as the lack of retroactive amendment to section 7 212 (a) in light of section

151 9, ʺ lacks ʹ persuasive significance ʹ because ʹ several equally tenable inferences ʹ may be

drawn from such inaction. ʺ Pension Benefit Guar. Corp. v. LTV Corp.

, 4 9 6 U.S. 6 33, 650

( 1 99 0 ) (quoting United States v. Wise

, 37 0 U.S. 405

, 411 ( 1 9 62 )).15

‐ 2224

United States v. Marinello, II

3 6 III. An Omnibus Clause Violation May Be Premised on an Omission 1

Marinello ʹ s next argument proceeds in two steps. First, citing Kelly

, 2

Marinello asserts that an omission cannot form the basis of a conviction under 3

the omnibus clause. Second, to ensure that he was not improperly convicted for 4

a failure to act, he contends that the jury should have been instructed that it was 5

required to unanimously agree on at least one of the underlying means alleged in 6

Count One (two of which pertained to omissions) and to render a special verdict 7

specifying which of those underlying means it found were met. 14 8

14 Marinello further argues in passing that Count One falsely states that ʺ the

defendant ʹ s accountant ʺ was not provided with complete and accurate records for tax

purposes, see Superseding Indictment at 1 (App ʹ x 7 5 ), because he maintains that no

professional relationship existed between him and Wiegley. The record shows that

Marinello consulted with Wiegley, although the two did not sign a contract for

accounting services. While the superseding indictment ʹ s description of Wiegley could

have been more precise, we conclude that Marinello ʹ s argument fails for at least two

reasons. First, assuming that the jury had relied on the allegations pertaining to ʺ the

defendant ʹ s accountant ʺ in order to convict under Count One, its verdict demonstrates

that, based on the evidence introduced at trial, it agreed with the superseding

indictment ʹ s description of Wiegley as his accountant. Thus, the jury resolved the

instant factual dispute in the government ʹ s favor. Moreover, if and to the extent that the

superseding indictment ʹ s description of Wiegley was erroneous, that error is harmless.

The jury clearly did not convict Marinello on Count One based solely on his offense

conduct in connection with his consultations with Wiegley, whether or not Wiegley was

his accountant. Marinello ʹ s counsel effectively conceded at trial that Marinello engaged

in all of the other means alleged under Count One, see August 6

, 2014 Trial Tr. at 51

‐ 56

(App ʹ x 12 8

‐ 33), and counsel only disputed whether Marinello performed any of the acts

or omissions alleged with the requisite corrupt intent. The jury ʹ s verdict of conviction

demonstrates that it concluded that the government proved such corrupt intent with

respect to the other conduct alleged in the indictment, in which Marinello concedes he15

‐ 2224

United States v. Marinello, II

37 In Kelly

, we described section 7 212(a) ʹ s omnibus clause as ʺ render[ing] 1

criminal ʹ any other ʹ action which serves to obstruct or impede the due 2

administration of the revenue laws. ʺ 14 7 F. 3 d at 1 7 5 (quoting 26 U.S.C. 3

§ 7 212(a)). From this statement, Marinello attempts to extract the principle that a 4

violation of the omnibus clause must be predicated on a defendant ʹ s affirmative 5

ʺ action, ʺ and not an omission. But Kelly did not cabin offense conduct under the 6

omnibus clause in this manner; section 7 212(a) broadly prohibits corruptly 7

obstructing or impeding, or endeavoring to obstruct or impede, the due 8

administration of the tax laws ʺ in any other way. ʺ See 26 U.S.C. § 7 212(a). We do 9

not see how a defendant could escape criminal liability under the omnibus clause 10

for a corrupt omission that is designed to delay the IRS in the administration of 11

its duties merely because the offense conduct involved an omission. Cf. Kelly

, 12

14 7 F. 3 d at 1 77 (approving a jury instruction defining the term ʺ endeavors ʺ under 1 3

section 7 212(a) to mean ʺ to knowingly and intentionally act or to knowingly and 14

intentionally make any effort which has a reasonable tendency to bring about the 15

desired result ʺ (emphasis added)). For example, a defendant surely could be 16

charged under section 7 212(a) for knowingly failing to provide the IRS with 1 7

engaged. Thus, whether or not the alleged omission describing Wiegley as Marinello ʹ s

accountant was properly before the jury is immaterial.15

‐ 2224

United States v. Marinello, II

38 materials that it requests, or, as in Marinello ʹ s case, for failing to document or 1

provide a proper accounting of business income and expenses. 15 While 2

apparently not as common as prosecutions based on one or more affirmative 3

acts, we are aware of several cases in which the government has prosecuted on 4

the basis of an omission as a means of violating section 7 212(a) ʹ s omnibus 5

clause. 16 6

We conclude, then, that an omission may be a means by which a defendant 7

corruptly obstructs or impedes the due administration of the Internal Revenue 8

Code under section 7 212(a). And it follows that Marinello ʹ s second argument on 9

15 We nonetheless recognize that the scope of omissions on which an omnibus clause

violation could be based is not limitless. See Wood

, 38 4 F. App ʹ x at 7 0 8 (suggesting it is

ʺ a questionable proposition ʺ that a defendant ʹ s mere failure to file tax returns could

constitute a violation of the omnibus clause, particularly because the ʺ willful failure to

file tax returns is addressed in a different section of the Internal Revenue Code, 26

U.S.C. § 7 20 3 ʺ ). Whatever those limits may be, the omissions at issue here do not

exceed them.

16 See, e.g.

, Kassouf

, 144 F.3d at 9 5 3 n. 1 (alleging the defendant ʺ failed to maintain or

cause to be maintained partnership books and records ʺ ; ʺ failed to report or cause to be

reported substantial amounts of interest earned on [certain] bank accounts ʺ ; and

transferred property ʺ without making or causing to be made any record of that sale or

transfer ʺ ); United States v. Armstrong

, 97 4 F. Supp. 52 8, 5 3 1 (E.D. Va. 1 997) (alleging the

defendant ʺ provided false information to, and withheld material information from, his

tax return preparer with regard to his travel expense reimbursements and income ʺ );

United States v. Bezmalinovic

, No. S3 9 6 CR 97 MGC, 1 99 6 WL 737 0 37, at * 2

, 1 99 6 U.S.

Dist. LEXIS 1 897 6

, at * 5

‐ 6 (S.D.N.Y. Dec. 26

, 1 99 6 ) (alleging the defendant failed to

report salary payments to certain employees ʺ in any IRS Form W

‐ 2 ʺ or ʺ to remit to the

IRS the [payroll and unemployment] tax[es] due and owing ʺ ).15

‐ 2224

United States v. Marinello, II

39 appeal is also without merit because the jury could have relied on his alleged 1

failure to keep Express Courier ʹ s books and records, or to provide Wiegley with 2

complete and accurate information on his personal and corporate income, as a 3

basis for its conviction on Count One. No unanimity instruction or special 4

verdict form was therefore required in order to distinguish the jury ʹ s assessment 5

of the underlying affirmative actions as opposed to the omissions alleged under 6

this count, because there is no requirement under the statute to make certain 7

that, if Marinello were convicted, the conviction was based solely on an 8

affirmative action and not an omission. 9

Marinello has not raised in this Court the issue of whether a unanimity 10

instruction or special verdict form is required for any other reason during trials 11

arising out of alleged section 7 212(a) omnibus clause violations, and we therefore 12

do not decide or offer an opinion with respect to any such argument. His pre

‐ 1 3

trial filings sought an instruction that the jury unanimously agree on at least one 14

of the eight means alleged in order to convict, as well as a special verdict form 15

requiring that the jury specify its findings on each of those means. However, he 16

does not repeat arguments concerning those requests on appeal. Cf. JP Morgan 1 7

Chase Bank v. Altos Hornos de Mexico, S.A. de C.V.

, 412 F. 3 d 41 8

, 42 8 (2d Cir. 2005) 1 815

‐ 2224

United States v. Marinello, II

40 ( ʺ [A]rguments not made in an appellant ʹ s opening brief are waived even if the 1

appellant pursued those arguments in the district court or raised them in a reply 2

brief. ʺ ). 1 7 3

IV. The District Court Did Not Procedurally Err In Determining 4

Marinello ʹ s Sentence 5

Finally, Marinello ʹ s remaining arguments—that the district court should 6

have conducted further inquiries to calculate the tax loss and restitution 7

amounts, and should have applied the two

‐ level reduction for acceptance of 8

responsibility—do not convince us that the district court committed procedural 9

error meriting resentencing. 10

Marinello argues that the district court ʹ s ʺ cursory review ʺ of his proffered 11

tax returns in arriving at a tax loss of $5 98 ,215.5 3 and a total restitution amount 12

1 7 We note nevertheless that while the Ninth Circuit does not appear to object to the

use of a unanimity instruction in this context, see United States v. Murphy

, 8 24 F.3d 11 97,

1201

, 1206 (9th Cir. 2016 ), at least two courts (the Tenth Circuit and a district court in

Washington D.C.) have ruled that the instruction is erroneous. See Sorensen

, 8 01 F.3d at

12 37 (concluding that the district court erred by requiring unanimity on one or more of

the listed means, in part because the instruction ʺ ignored the indictment ʹ s language

charging that [the defendant] violated § 7 212 (a) ʹ by the following means, among others

. . . . ʹʺ (emphasis in original)); United States v. Adams

, 150 F. Supp. 3d 3 2

, 37

‐ 38 (D.D.C.

2015 ) (agreeing with Sorensen ʹ s conclusion, and quoting Richardson v. United States

, 526

U.S. 8 1 3, 8 1 7 ( 1 999) for the proposition that ʺ [a] federal jury need not always decide

unanimously which of several possible sets of underlying brute facts make up a

particular element, say, which of several possible means the defendant used to commit

an element of the crime ʺ ).15

‐ 2224

United States v. Marinello, II

41 of $ 3 51, 7 6 3 .0 8

, without conducting an evidentiary hearing or receiving 1

supplemental submissions, ʺ was unfair and violated his due process rights. ʺ See 2

Appellant ʹ s Br. at 2 9

. But a district court ʺ is not required, by either the Due 3

Process Clause or the federal Sentencing Guidelines, to hold a full

‐ blown 4

evidentiary hearing in resolving sentencing disputes.

. . . All that is required is 5

that the court afford the defendant some opportunity to rebut the [g]overnment ʹ s 6

allegations. ʺ Sabhnani

, 5 99 F. 3 d at 25 8 (quoting Maurer

, 266 F. 3 d at 151

‐ 52). Here, 7

Marinello challenged the Probation Office ʹ s calculations in his objections to the 8

PSR, attaching his personal and corporate tax returns in an effort to show that 9

$4 8

, 89 0 was a more appropriate tax loss and restitution amount. He did not, 10

however, respond on reply to the many inaccuracies the government identified 11

in these returns. The district court considered his objection and, crediting the 12

government ʹ s arguments, ultimately rejected it before imposing sentence. 1 3

Because Marinello was afforded ʺ some opportunity ʺ to dispute the tax loss and 14

restitution amounts, and to respond to the government ʹ s arguments with respect 15

to his tax returns, the district court did not abuse its discretion by not obtaining 16

additional information regarding this issue. See id. 1 715

‐ 2224

United States v. Marinello, II

42 Nor can we say that the district court abused its discretion by denying 1

Marinello a two

‐ level decrease to his base offense level because he did not 2

ʺ clearly demonstrate[] acceptance of responsibility for his offense, ʺ a decision to 3

which we accord ʺ great deference on review, ʺ see U.S.S.G. § 3 E1.1(a) & cmt. 5. 4

Marinello ʹ s sole relevant contention on appeal is that his ʺ offer[] to plead guilty 5

to the failures to file income tax returns ʺ ʺ should have received some 6

consideration in sentencing. ʺ Appellant ʹ s Br. at 3 0. But an offer to plead guilty to 7

some counts of an indictment provides limited evidence of acceptance of 8

responsibility; even a defendant who pleads guilty is not guaranteed to receive 9

the adjustment for acceptance of responsibility. See U.S.S.G. § 3 E1.1 cmt. 3

. 10

Moreover, we agree with the district court ʹ s conclusion that Marinello ʹ s 11

case is not one of the ʺ rare situations ʺ contemplated in the Guidelines in which a 12

defendant ʺ may clearly demonstrate an acceptance of responsibility for his 1 3

criminal conduct even though he exercises his constitutional right to a trial ʺ —for 14

instance, by ʺ go[ing] to trial to assert and preserve issues that do not relate to 15

factual guilt. ʺ See id. cmt. 2. Marinello proceeded to trial on the theory that he 16

lacked the requisite mens rea to commit the omnibus clause violation, an issue of 1 7

factual guilt. It was only in post

‐ trial briefing that Marinello ʹ s legal argument 1 815

‐ 2224

United States v. Marinello, II

4 3 pertaining to the elements of an omnibus clause violation and the Kassouf rule 1

was first raised. In our view, it was reasonable for the district court to deny a 2

reduction for acceptance of responsibility in these circumstances. See id. (stating 3

the acceptance of responsibility adjustment ʺ is not intended to apply to a 4

defendant who puts the government to its burden of proof at trial by denying the 5

essential factual elements of guilt, is convicted, and only then admits guilt and 6

expresses remorse ʺ ); cf. United States v. Melot

, 73 2 F. 3 d 12 3 4, 1244

‐ 45 (10th Cir. 7

201 3 ) (concluding that the district court clearly erred in applying the acceptance 8

of responsibility reduction where the defendant went to trial ʺ so he could 9

challenge the mens rea element of the crimes charged in the indictment, ʺ 10

including a violation of section 7 212(a) ʹ s omnibus clause). 1 8 11

1 8 Three additional considerations under U.S.S.G. § 3E 1

. 1 bolster the district court ʹ s

conclusion on this score. First, ʺ prior to adjudication of [his] guilt, ʺ no ʺ voluntary

restitution payment ʺ to the IRS had been made. See id. cmt. 1 (C). Second, Marinello did

not timely manifest acceptance of responsibility: He stated that he ʺ never got around ʺ

to paying his taxes instead of admitting to his guilt during his interview with Agent

Klimczak, August 6

, 2014 Trial Tr. at 1 7 2 (App ʹ x 1 8 1 ), and he persisted in denying

responsibility for the section 7 212 (a) count while his PSR was being prepared. See

U.S.S.G. § 3E 1

. 1 cmt. 1 (H) (providing that ʺ timeliness ʺ is a consideration for

determining whether a defendant has accepted responsibility). Even during the

sentencing proceedings, he told the court that the Probation Office ʺ c[ould]n ʹ t add a

column of numbers together ʺ to calculate the total tax loss, and blamed his misconduct

on feeling ʺ overwhelmed by the job. ʺ Sentencing Tr. at 1 9

‐ 20 (App ʹ x 5 73

‐ 7 4 ). Third, the

district court ʹ s application of a U.S.S.G. § 3C 1

. 1 enhancement for obstruction of justice

ʺ ordinarily indicates that the defendant has not accepted responsibility for his criminal15

‐ 2224

United States v. Marinello, II

44 We therefore conclude that the district court did not commit procedural 1

error by using the manner of calculating the tax loss and restitution amounts that 2

it did, or by deciding not to apply a two

‐ level reduction to Marinello ʹ s base 3

offense level for acceptance of responsibility. 4



### CONCLUSION 5

For the foregoing reasons, the judgment of the district court is AFFIRMED. 6

conduct, ʺ see U.S.S.G. § 3E 1

. 1 cmt. 4

. Marinello offers no reason to conclude that this is

an ʺ extraordinary case[] ʺ warranting ʺ adjustments under both §§ 3C 1

. 1 and 3E 1

. 1

. ʺ See

id.