Marinello v. United States

Certiorari To The United States Court Of Appeals For The Second Circuit

No. 16-1144. Argued December 6, 2017--Decided March 21, 2018

Between 2004 and 2009, the Internal Revenue Service (IRS) intermittently investigated petitioner Marinello’s tax activities. In 2012, the Government indicted Marinello for violating, among other criminal tax statutes, a provision in 26 U. S. C. 7212(a) known as the Omnibus Clause, which forbids “corruptly or by force or threats of force . . . obstruct[ing] or imped[ing], or endeavor[ing] to obstruct or impede, the due administration of [the Internal Revenue Code].” The judge instructed the jury that, to convict Marinello of an Omnibus Clause violation, it must find that he “corruptly” engaged in at least one of eight specified activities, but the jury was not told that it needed to find that Marinello knew he was under investigation and intended corruptly to interfere with that investigation. Marinello was convicted. The Second Circuit affirmed, rejecting his claim that an Omnibus Clause violation requires the Government to show the defendant tried to interfere with a pending IRS proceeding, such as a particular investigation.

Held: To convict a defendant under the Omnibus Clause, the Government must prove the defendant was aware of a pending tax-related proceeding, such as a particular investigation or audit, or could reasonably foresee that such a proceeding would commence. Pp. 3–11.

(a) In United States v. Aguilar, 515 U. S. 593, this Court interpreted a similarly worded criminal statute—which made it a felony “corruptly or by threats or force . . . [to] influenc[e], obstruc[t], or imped[e], or endeavo[r] to influence, obstruct, or impede, the due administration of justice,” 18 U. S. C. 1503(a). There, the Court required the Government to show there was a “nexus” between the defendant’s obstructive conduct and a particular judicial proceeding. The Court said that the defendant’s “act must have a relationship in time, causation, or logic with the judicial proceedings.” 515 U. S., at 599. In reaching this conclusion, the Court emphasized that it has “traditionally exercised restraint in assessing the reach of a federal criminal statute, both out of deference to the prerogatives of Congress and out of concern that ‘a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.’ ” Id., at 600. That reasoning applies here with similar strength. The verbs “obstruct” and “impede” require an object. The taxpayer must hinder a particular person or thing. The object in 7212(a) is the “due administration of [the Tax Code].” That phrase is best viewed, like the “due administration of justice” in Aguilar, as referring to discrete targeted administrative acts rather than every conceivable task involved in the Tax Code’s administration. Statutory context confirms this reading. The Omnibus Clause appears in the middle of a sentence that refers to efforts to “intimidate or impede any officer or employee of the United States acting in an official capacity.” 7212(a). The first part of the sentence also refers to “force or threats of force,” which the statute elsewhere defines as “threats of bodily harm to the officer or employee of the United States or to a member of his family.” Ibid. And 7212(b) refers to the “forcibl[e] rescu[e]” of “any property after it shall have been seized under” the Internal Revenue Code. Subsections (a) and (b) thus refer to corrupt or forceful actions taken against individual identifiable persons or property. In context, the Omnibus Clause logically serves as a “catchall” for the obstructive conduct the subsection sets forth, not for every violation that interferes with routine administrative procedures such as the processing of tax returns, receipt of tax payments, or issuance of tax refunds. The statute’s legislative history does not suggest otherwise. The broader context of the full Internal Revenue Code also counsels against a broad reading. Interpreting the Omnibus Clause to apply to all Code administration could transform the Code’s numerous misdemeanor provisions into felonies, making them redundant or perhaps the subject matter of plea bargaining. It could also result in a similar lack of fair warning and related kinds of unfairness that led this Court to “exercise” interpretive “restraint” in Aguilar. See 515 U. S., at 600. The Government claims that the “corrupt state of mind” requirement will cure any overbreadth problem, but it is difficult to imagine a scenario when that requirement will make a practical difference in the context of federal tax prosecutions. And to rely on prosecutorial discretion to narrow the otherwise wide-ranging scope of a criminal statute’s general language places too much power in the prosecutor’s hands. Pp. 3–9.

(b) Following the same approach taken in similar cases, the Government here must show that there is a “nexus” between the defendant’s conduct and a particular administrative proceeding, such as an investigation, an audit, or other targeted administrative action. See Aguilar, supra, at 599. The term “particular administrative proceeding” does not mean every act carried out by IRS employees in the course of their administration of the Tax Code. Just because a taxpayer knows that the IRS will review her tax return annually does not transform every Tax Code violation into an obstruction charge. In addition to satisfying the nexus requirement, the Government must show that the proceeding was pending at the time the defendant engaged in the obstructive conduct or, at the least, was then reasonably foreseeable by the defendant. See Arthur Andersen LLP v. United States, 544 U. S. 696–708. Pp. 9–11.

839 F. 3d 209, reversed and remanded.

Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Sotomayor, Kagan, and Gorsuch, JJ., joined. Thomas, J., filed a dissenting opinion, in which Alito, J., joined.

Ayestas, aka Zelaya Corea v. Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division

Certiorari To The United States Court Of Appeals For The Fifth Circuit

No. 16-6795. Argued October 30, 2017--Decided March 21, 2018

Petitioner Ayestas was convicted of murder and sentenced to death in a Texas state court. He secured new counsel, but his conviction and sentence were affirmed on appeal. A third legal team sought, unsuccessfully, state habeas relief, claiming trial-level ineffective assistance of counsel but not counsel’s failure to investigate petitioner’s mental health and alcohol and drug abuse during the trial’s penalty phase. His fourth set of attorneys did raise that failure in a federal habeas petition, but because the claim had never been raised in state court, the District Court held, it was barred by procedural default. That decision was vacated and remanded for reconsideration in light of Martinez v. Ryan, 566 U. S. 1—where this Court held that an Arizona prisoner seeking federal habeas relief could overcome the procedural default of a trial-level ineffective-assistance-of-counsel claim by showing that the claim is substantial and that state habeas counsel was also ineffective in failing to raise the claim in a state habeas proceeding—and Trevino v. Thaler, 569 U. S. 413—which extended that holding to Texas prisoners. Petitioner filed an ex parte motion asking the District Court for funding to develop his claim that both his trial and state habeas counsel were ineffective, relying on 18 U. S. C. 3599(f), which provides, in relevant part, that a district court “may authorize” funding for “investigative, expert, or other services . . . reasonably necessary for the representation of the defendant.” The court found his claim precluded by procedural default and thus denied his funding request. The Fifth Circuit also rejected the funding claim under its precedent: that a 3599(f) funding applicant must show that he has a “substantial need” for investigative or other services, and that funding may be denied when an applicant fails to present “a viable constitutional claim that is not procedurally barred.” 817 F. 3d 888, 895–896.


1. The District Court’s denial of petitioner’s funding request was a judicial decision subject to appellate review under the standard jurisdictional provisions. Pp. 7–14.

(a) Title 28 U. S. C. 1291, 2253, and 1254 confer jurisdiction to review decisions made by a district court in a judicial capacity. “Administrative” decisions—about, e.g., facilities, personnel, equipment, supplies, and rules of procedure—are “not subject to [this Court’s] review,” Hohn v. United States, 524 U. S. 236, but the District Court’s ruling here does not remotely resemble such decisions. Petitioner’s request was made by motion in his federal habeas proceeding, which is indisputably a judicial proceeding. And resolution of the funding question requires the application of a legal standard—whether the funding is “reasonably necessary” for effective representation—that demands an evaluation of petitioner’s prospects of obtaining habeas relief. Pp. 8–10.

(b) Respondent’s arguments in support of her claim that 3599’s funding requests are nonadversarial and administrative are unpersuasive. First, that the requests can be decided ex parte does not make the proceeding nonadversarial. The habeas proceeding here was clearly adversarial. And petitioner and respondent plainly have adverse interests on the funding question and have therefore squared off as adversaries. The mere fact that a 3599 funding request may sometimes be made ex parte is thus hardly dispositive. Second, nothing in 3599 even hints that the funding decisions may be revised by the Director of the Administrative Office of the Courts. Lower court cases that appear to have accepted Administrative Office review of certain Criminal Justice Act (CJA) payments, even if a proper interpretation of the CJA, are inapposite. Finally, the fact that 3599(g)(2) requires funding in excess of the generally applicable statutory cap to be approved by the circuit’s chief judge or another designated circuit judge, instead of by a panel of three, does not make the proceeding administrative. If Congress wishes to make certain rulings reviewable by a single circuit judge, the Constitution does not stand in the way. Pp. 10–14.

2. The Fifth Circuit did not apply the correct legal standard in affirming the denial of petitioner’s funding request. Section 3599 authorizes funding for the “reasonably necessary” services of experts, investigators, and the like. But the Fifth Circuit’s requirement that applicants show a “substantial need” for the services is arguably a more demanding standard. Section 3599 appears to use the term “necessary” to mean something less than essential. Because it makes little sense to refer to something as being “reasonably essential,” the Court concludes that the statutory phrase calls for the district court to determine, in its discretion, whether a reasonable attorney would regard the services as sufficiently important, guided by considerations detailed in the opinion. The term “substantial” in the Fifth Circuit’s test, however, suggests a heavier burden. And that court exacerbated the difference by also requiring a funding applicant to present “a viable constitutional claim that is not procedurally barred.” That rule that is too restrictive after Trevino, see 569 U. S. at 429, because, in cases where funding stands a credible chance of enabling a habeas petitioner to overcome the procedural default obstacle, it may be error for a district court to refuse funding. That being said, district courts were given broad discretion in assessing funding requests when Congress changed the phrase “shall authorize” in 3599’s predecessor statute, see 21 U. S. C. 848(q)(9), to “may authorize” in 3599(f). A funding applicant must not be expected to prove that he will be able to win relief if given the services, but the “reasonably necessary” test does require an assessment of the likely utility of the services requested.

Respondent’s alternative ground for affirmance—that funding is never “reasonably necessary” where a habeas petitioner seeks to present a procedurally defaulted ineffective-assistance-of-trial-counsel claim that depends on facts outside the state-court record—remains open for the Fifth Circuit to consider on remand. Pp. 14–19.

817 F. 3d 888, vacated and remanded.

Alito, J., delivered the opinion for a unanimous Court. Sotomayor, J., filed a concurring opinion, in which Ginsburg, J., joined.