Predicated on the 1957 decision by the U.S. Court of Appeals for the Second Circuit in United States v. Klein,1 federal tax indictments often include an allegation that the defendants conspired to “defraud the United States and the Internal Revenue Service by impeding, impairing, defeating and obstructing the lawful governmental functions of the IRS in the ascertainment, evaluation, assessment, and collection of income taxes.” While some commentators have questioned the statutory authority for the so-called Klein conspiracy,2 given its extensive support in Supreme Court precedent and appellate case law, challenges to the charge have rarely gained traction.
In late November, however, the Second Circuit decided United States v. Coplan,3 in which it recognized “infirmities in the history and deployment” of the conspiracy statute to efforts to impede or obstruct the IRS. (The author and his firm represented one of the defendants in Coplan at trial and served as co-counsel on that defendant’s appeal.) Although the Second Circuit ultimately declined to overturn decades of jurisprudence, together with a 1993 decision by the U.S. Court of Appeals for the Ninth Circuit, the Coplan decision casts doubt on the validity of the Klein doctrine and gives criminal defense counsel reason to hope that the Supreme Court will ultimately decide the issue.
