On March 21, the Supreme Court handed down its decision in Marinello v. United States, 584 U.S. __ (March 21, 2018), which restricted 26 U.S.C. §7212(a)’s omnibus clause to cases where the government can prove “a ‘nexus’ between the defendant’s conduct and a particular administrative proceeding, such as an investigation, an audit, or other targeted administrative action.” Given that the Department of Justice had long used that provision to prosecute conduct predating audits and investigations, Marinello represents a significant limitation on the government’s use of the statute. See Jeremy H. Temkin & Miriam Glaser, “Marinello v. United States: SCOTUS Reins in the Tax Division,” 3 For the Defense 2, 28 (May 2018).

While Marinello may rightly be viewed as a bulwark against prosecutorial overreaching in tax cases, a recent decision out of the Southern District of New York raises several other considerations for attorneys with clients facing obstruction charges. In United States v. Doyle, 2018 WL 190250 6 (April 19, 2018), Judge Andrew Carter ruled on a series of pretrial motions to exclude evidence that the government planned to offer to prove a §7212(a) charge in light of Marinello. The challenged evidence centered on the defendant’s invocation of her Fifth Amendment privilege on several tax returns and her efforts to resist responding to grand jury subpoenas, including arguments and statements made by her lawyer. Thus, at the same time that Marinello sets out more precisely what the government must prove in a tax obstruction case, Judge Carter’s decision in Doyle limits how the government can meet its burden of proof.

‘Doyle’ Background