Marinello v. United States

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Marinello v. United States

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Conference of May 16, 2019

Docket No.	Op. Below	Argument	Opinion	Vote	Author	Term
16-1144	2nd Cir.	Dec 6, 2017 Tr.Aud.	Mar 21, 2018	7-2	Breyer	OT 2017

Holding: To convict a defendant under 26 U. S. C. §7212(a) -- 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 federal 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.

Judgment: Reversed and remanded, 7-2, in an opinion by Justice Breyer on March 21, 2018. Justice Thomas filed a dissenting opinion, in which Justice Alito joined.

OT2017 #19: "This Classroom Is Not Full" (First Mondays)
Opinion analysis: A “nexus” requirement for the tax code’s obstruction felony (Susan C. Morse)
A "view" from the courtroom: Just another (snowy) workday here (Mark Walsh)
OT2017 #9: "Peak SG" (First Mondays)
Argument analysis: Is “cash only” enough for a tax law obstruction charge? (Susan C. Morse)
Argument preview: What limits tax law obstruction-of-justice charges? (Susan C. Morse)
Today's orders (Amy Howe)

Date	Proceedings and Orders (key to color coding)
Mar 21 2017	Petition for a writ of certiorari filed. (Response due April 21, 2017)
Apr 12 2017	Order extending time to file response to petition to and including May 22, 2017.
Apr 21 2017	Brief amicus curiae of The American College of Tax Counsel filed.
Apr 21 2017	Brief amici curiae of Cause of Action Institute, at el. filed.
May 22 2017	Brief of respondent United States in opposition filed.
May 25 2017	Letter of May 25, 2017, with supplemental authority from the Acting Solicitor General received.
Jun 05 2017	Reply of petitioner Carl J. Marinello, II filed.
Jun 06 2017	DISTRIBUTED for Conference of June 22, 2017.
Jun 26 2017	DISTRIBUTED for Conference of June 26, 2017.
Jun 27 2017	Petition GRANTED.
Aug 03 2017	The time to file the joint appendix and petitioner's brief on the merits is extended to and including September 1, 2017.
Aug 03 2017	The time to file respondent's brief on the merits is extended to and including October 23, 2017.
Aug 23 2017	Motion to dispense with printing the joint appendix filed by petitioner Carl J. Marinello, II.
Sep 01 2017	Brief of petitioner Carl J. Marinello, II filed.
Sep 08 2017	Brief amicus curiae of American College of Tax Counsel filed.
Sep 08 2017	Brief amicus curiae of New York Council of Defense Lawyers filed.
Sep 08 2017	Brief amici curiae of Cause of Action Institute and National Association of Criminal Defense Lawyers filed.
Sep 08 2017	Brief amici curiae of Chamber of Commerce of the United States of America, et al. filed.
Sep 25 2017	Motion to dispense with printing the joint appendix filed by petitioner GRANTED.
Oct 06 2017	SET FOR ARGUMENT ON Tuesday, December 5, 2017
Oct 18 2017	Record requested from the U.S.C.A. 2nd Circuit.
Oct 19 2017	Record received from the U.S.C.A. is electronic.
Oct 20 2017	CIRCULATED
Oct 23 2017	Brief of respondent United States filed. (Distributed)
Nov 15 2017	This case is removed from the oral argument calendar for Tuesday, December 5, 2017, and has been SET FOR ARGUMENT ON Wednesday, December 6, 2017.
Nov 22 2017	Reply of petitioner Carl J. Marinello, II filed. (Distributed)
Dec 06 2017	Argued. For petitioner: Matthew S. Hellman, Washington, D. C. For respondent: Robert A. Parker, Assistant to the Solicitor General, Department of Justice, Washington, D. C.
Mar 21 2018	Judgment REVERSED and case 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.
Apr 23 2018	JUDGMENT ISSUED.

Featured Posts

Academic highlight: The states arguing as amici curiae in the Supreme Court – Dan Schweitzer

Relist Watch – John Elwood

Ask the author: “So Long, Earl” – Andrew Hamm
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The Supreme Court will release orders from the May 16 conference on Monday at 9:30 a.m.; John Elwood's Relist Watch compiles the petitions that were relisted for this conference.
There is a possibility of opinions on Monday at 10 a.m.
On Thursday, the justices meet for their May 23 conference.
Major Cases
- Department of Commerce v. New York
  (1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.
- Lamone v. Benisek
  In case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.
- Kisor v. Wilkie
  Whether the Supreme Court should overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., which direct courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation.
- Rucho v. Common Cause
  (1) Whether plaintiffs have standing to press their partisan gerrymandering claims; (2) whether plaintiffs’ partisan gerrymandering claims are justiciable; and (3) whether North Carolina’s 2016 congressional map is, in fact, an unconstitutional partisan gerrymander.
- The American Legion v. American Humanist Association
  (1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.
- Gamble v. United States
  Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.
see all this term’s cases »
Recent Decisions
- Apple Inc. v. Pepper Respondents, who purchased apps for their iPhones though Apple’s App Store, were direct purchasers from Apple under Illinois Brick Co. v. Illinois and may sue Apple for allegedly monopolizing the retail market for the sale of iPhone apps.
- Cochise Consultancy Inc. v. United States, ex rel. Hunt The limitations period in 31 U.S.C. §3731(b)(2) -- which provides that a False Claims Act action must be brought within three years after the “the official of the United States charged with responsibility to act in the circumstances” knew or should have known the relevant facts, but not more than 10 years after the violation -- applies in a qui tam suit in which the federal government has declined to intervene; the relator in a nonintervened suit is not “the official of the United States” whose knowledge triggers §3731(b)(2)’s limitations period.
- Franchise Tax Board of California v. Hyatt Nevada v. Hall is overruled; states retain their sovereign immunity from private suits brought in courts of other states.
see all this term’s cases »
Current Relists
- al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.
- Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.
- Box v. Planned Parenthood of Indiana and Kentucky Inc. Whether a state, consistent with the 14th Amendment, may require an ultrasound as part of informed consent at least 18 hours before an abortion.
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Cases argued 70

Cases decided 32

Summary reversals 4

Merits cases granted to date 73

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Justice Thomas at Pepperdine Law School

On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.

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Cases argued	70
Cases decided	32
Summary reversals	4
Merits cases granted to date	73

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