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It is not too much to expect that a person should have fair warning that his conduct is a crime. This is an essential element of fairness. And the flip side is equally true: in a criminal prosecution the government should have to prove that an accused was aware that the charged conduct was a crime. Clearly articulated criminal intent elements of an offense, or mens rea requirements, are the fundamental moral anchor of the criminal justice system. NACDL’s long-standing quest to ensure that criminal statutes have clearly defined intent requirements remains a core goal of its legislative advocacy. However elusive that goal may be, its advocacy in litigation continues to bear fruit.
On March 21, 2018, in Marinello v. United States,1 the Supreme Court once again intervened to block an overly expansive application of a vague criminal provision. The case involved the so-called “Omnibus Clause” of the Internal Revenue Code, a felony carrying a three-year maximum sentence, which forbids
corruptly … imped[ing], or endeavor[ing] to obstruct or impede the due administration of [the Internal Revenue Code].2
The government charged Carlo Marinello with various activities, such as failing to maintain corporate books and records, failing to provide his tax accountant with complete and accurate tax information, throwing away receipts, and cashing business checks. The question before the Court was whether the above criminal provision applies to all government efforts to collect taxes, including all routine administrative procedures related to tax collection, or whether it is confined to specific government proceedings, such as a particularized investigation or audit. The government argued for the former interpretation, and persuaded the trial court not to instruct the jury that to convict Marinello it had to find that he knew he was under investigation and intended to corruptly interfere with that investigation. The jury convicted, and the Second Circuit affirmed, holding that a defendant need not possess “an awareness of a particular [IRS] action or investigation.”3
The Supreme Court granted certiorari, and NACDL submitted a joint amicus brief with the Cause of Action Institute. The brief argued that mens rea requirements are essential and urged the Court to cabin the statute, as it has done on other occasions, “where the outer bounds of statutory interpretation threaten vagueness and fail to provide fair notice to ensure that everyone indicted under a statute knows he was violating the law.”4
The Supreme Court reversed. The Court held that to secure a conviction under the Omnibus Clause, the government must show a “nexus” between the defendant’s conduct and a particular administrative proceeding.5 Writing for the 7–2 majority, Justice Breyer could find no support in the legislative history of the statute for the broad interpretation urged by the government. He noted that the broad interpretation “would potentially transform many, if not all, of these [various specified] misdemeanor provisions into felonies, making the specific provisions redundant, or perhaps the subject matter of plea bargaining.”6
More to the point of NACDL’s advocacy, Justice Breyer’s opinion addressed the concern that “a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.”7 Noting that the broad interpretation urged by the government could apply to everyday behavior, such as paying a babysitter in cash without withholding taxes, leaving a large cash tip in a restaurant, failing to keep donation receipts for charitable contributions or generally failing to provide every tax-related record to an accountant, Justice Breyer wrote that “we sincerely doubt that [persons engaging in the described behavior] would believe [they are] facing felony prosecution for tax obstruction.”8
Why is it that the government repeatedly and doggedly seeks to extend every criminal provision to the maximum extent? This is an increasingly frequent occurrence. Over the years this column has discussed case after case in which the government seeks to stretch vaguely worded statutes beyond all reason and to great detriment to the public.9 Here are just a few examples: Yates v. United States10 involved a bizarre application of the anti-shredding provision of the Sarbanes-Oxley Act of 2002 against a fisherman who threw three undersized grouper back into the ocean. In United States v. Brigham Oil and Gas LP,11 the government’s use of the Migratory Bird Treaty Act would have turned countless everyday activities that resulted in bird deaths into criminal offenses. In Bond v. United States,12 the government attempted to stretch the application of the Chemical Weapons Convention Implementation Act of 1998 to a simple assault after a woman placed a caustic substance on the doorknob of her husband’s mistress.
For some prosecutors, the search for a statute to criminalize behavior or to enhance penalties for the nefarious purpose — as implied by Justice Breyer in Marinello — of gaining an edge in plea bargaining is nothing more or less than a blood sport. And it is a shame that the Supreme Court was compelled to observe, “[n]either can we rely upon prosecutorial discretion to narrow the statute’s scope.”13 Indeed, after noting how the government has come to invoke the Omnibus Clause with far greater frequency than it did in the first few decades after it was enacted, the Court also noted that the government at oral argument explicitly invoked the newly re-articulated policy of the current Justice Department to charge the most punitive provision it can prove at trial in defense of its charging decisions.14
Reliance upon prosecutorial discretion to prevent misuse of the criminal law is far too risky. Doing so risks allowing “policemen, prosecutors, and juries to pursue their personal predilections,”15 which could result in nonuniform execution of that power across time and geographic location. Insofar as the public fears arbitrary prosecution, it risks undermining confidence in the criminal justice system.16
It is well and good to fight against arbitrary prosecution in the courts, and gratifying to win from time to time. For those who must go through the ordeal of a prosecution, sometimes persevering through multiple levels of appeal, it is doubtful that even a positive outcome restores confidence in the criminal justice system. It remains the case that the only lasting remedy is the enactment of criminal provisions that are clear and precise as to the conduct they cover and the level of knowledge and intent they require to turn an innocuous act into a serious crime.
- Marinello v. United States, 138 S. Ct. 1101 (2018).
- 26 U.S.C. § 7212(a).
- United States v. Marinello, 839 F.3d 209, 221 (2d Cir. 2016) (quoting United States v. Wood, 384 Fed. Appx. 698, 702 (2d Cir. 2010).
- Brief of NACDL and Cause of Action Institute as Amici Curiae Supporting Petitioner at 4, Marinello v. United States, 138 S. Ct. 1101 (2018) (No. 16-1144). Read the amicus brief at https://www.nacdl.org/Amicus/2017 (citing McDonnell v. United States, 136 S. Ct. 2355, 2367 (2016); Yates v. United States, 135 S. Ct. 1074 (2015); Arthur Andersen LLP v. United States, 544 U.S. 696 (2005); United States v. Aguilar, 515 U.S. 593 (1995)).
- Marinello, 138 S. Ct. at 1109.
- Id. at 1107.
- Id. at 1106 (citing United States v. Aguilar, 515 U.S. 593, 600 (quoting McBoyle v. United States, 283 U.S. 25, 25 (1931))).
- Marinello, 138 S. Ct. at 1108.
- See the following articles written by Norman L. Reimer: When It Comes to Overcriminalization, Prosecutorial Discretion Is for the Birds, The Champion, September/October 2012 at 9; Whether Fish or Fowl — Prosecutorial Overreach Is a Poisonous Aspect of Overcriminalization, The Champion, September 2014 at 7; Overcriminalization and the Trial Penalty: Gaining Traction One Case — And One Justice — at a Time, The Champion, January/February 2015 at 9; Overcriminalization: It Can Be Complex or Simple, but It Is Always Wrong, The Champion, September/October 2015 at 9.
- Yates, supra note 4.
- United States v. Brigham Oil and Gas LP, 840 F. Supp. 2d 1202 (D.N.D. 2012).
- Bond v. United States, 134 S. Ct. 2077 (2014).
- Marinello, 138 S. Ct. at 1108.
- Id. citing Office of the Attorney General, Department Charging and Sentencing Policy (May 10, 2017), available at http://www.justice.gov/opa/press-release/file/965869/download (last visited March 16, 2018).
- Smith v. Goguen, 415 U.S. 566, 575 (1974).
- Id. at 1109.
About the Author
Norman L. Reimer is NACDL’s Executive Director and Publisher of The Champion.