Marinello v. United States

Brief of Amici Curiae Cause of Action Institute and National Association of Criminal Defense Lawyers in Support of Petitioner.

Brief filed: 09/08/2017


Marinello v. United States

United States Supreme Court; Case No. 16-1144

Prior Decision

Decision below, United States v. Marinello, 839 F.3d 209 (2nd Cir. Oct. 14, 2016).


This Court has routinely cabined broadly-drafted criminal statutes that are vague or lack meaningful mens rea requirements. The omnibus clause raises vagueness concerns. The government’s interpretation of the omnibus clause invites its arbitrary enforcement. The “corruptly” mens rea requirement does not protect the statute from vagueness concerns or constitute a meaningful mens rea requirement. applied to 26 U.S.C. § 7212(a) does not restrict the application of the statute in any meaningful manner. Whether the defendant has the “intent to obtain an unlawful benefit” depends on whether the benefit was unlawful, not on whether the defendant knew the benefit was unlawful. Even legal acts or omissions can be criminal. The “unlawful benefit” does not need to be a tax benefit. The act or omission need not even actually obstruct or impede the administration of the tax code or be carried out with the intent to obstruct or impede the administration of the tax code. 

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John Vecchione and Erica L. Marshall, Cause of Action Institute; Joshua L. Dratel, NACDL, Washington, DC.