Attempts to Commit Tax Crimes (5/23/14)

I deal today with a little discussed feature of criminal procedure.  Federal Rules of Criminal Procedure Rule 31, here, provides:

(c) Lesser Offense or Attempt. A defendant may be found guilty of any of the following: 

(1) an offense necessarily included in the offense charged; 

(2) an attempt to commit the offense charged; or 

(3) an attempt to commit an offense necessarily included in the offense charged, if the attempt is an offense in its own right.

It is well established law that a defendant may be convicted of a lesser included offense in lieu of the offense charged.  I focus on subsection (2) -- conviction of an attempt to commit the offense charged.

In United States v. Johnson, 2014 U.S. App. LEXIS 8834 (4th Cir. 2014), here, the defendant was "convicted by a jury of four counts of violating the Internal Revenue Code ("IRC"); one count of corruptly obstructing or impeding, or endeavoring to obstruct or impede, the due administration of the IRC, in violation of 26 U.S.C. § 7212(a), and three counts of willfully failing to file income tax returns, in violation of 26 U.S.C. § 7203."  On appeal, one of his claims was that the trial court had improperly constructively amended the § 7212(a) charge.  Section 7212(a), here, is tax obstruction.  The statute, here, is:

§ 7212 - Attempts to interfere with administration of internal revenue laws
(a) Corrupt or forcible interference
Whoever corruptly or by force or threats of force (including any threatening letter or communication) endeavors to intimidate or impede any officer or employee of the United States acting in an official capacity under this title, or in any other way corruptly or by force or threats of force (including any threatening letter or communication) obstructs or impedes, or endeavors to obstruct or impede, the due administration of this title, shall, upon conviction thereof, be fined not more than $5,000, or imprisoned not more than 3 years, or both, except that if the offense is committed only by threats of force, the person convicted thereof shall be fined not more than $3,000, or imprisoned not more than 1 year, or both. The term “threats of force”, as used in this subsection, means threats of bodily harm to the officer or employee of the United States or to a member of his family.

As recounted by the Court of Appeals, § 7212(a) "criminalizes both successful and unsuccessful attempts to impede the IRS."  In this case, the § 7212(a) Count, Count One, was titled "Corrupt Endeavor To Obstruct, Impede, and Impair the Due Administration Of the Internal Revenue Code" but the text of Count One charged that the defendant "did corruptly obstruct and impede the due administration of the Internal Revenue Code."  [Actually, there was a typo, but I include what the correct text should have been.]  So, focusing only on the text of the charge and not the title (like a caption which usually is not controlling), the defendant was charged with a completed act of obstruction.  The court nevertheless:

instructed the jury on the meaning of the word "endeavor," defining it as "any effort or any act or attempt to effectuate an arrangement or to try to do something, the natural and probable consequences of which is to obstruct or impede the due administration of the Internal Revenue laws." 

The defendant complained that this broadened the scope of the charge actually made.
The Court rejected the argument as follows:

Appellant contends the trial court constructively amended Count One of the indictment when it informed jurors Appellant could be found guilty of violating 26 U.S.C. § 7212(a) if he merely "endeavored" to obstruct or impede the IRS. According to Appellant, he was not charged with "endeavoring" to obstruct or impede the IRS, and the trial court's jury instructions improperly broadened the basis of conviction alleged in Count One. The Government, however, correctly points out that even if the indictment were given the strict reading promoted by Appellant, the jury was entitled to convict Appellant of a lesser-included offense, i.e., attempt, which is the equivalent of "endeavoring." See Fed. R. Crim. P. 31(c) ("A defendant may be found guilty of any of the following: (1) an offense necessarily included in the offense charged; (2) an attempt to commit the offense charged; or (3) an attempt to commit an offense necessarily included in the offense charged, if the attempt is an offense in its own right."). 

Because the district court's instructions did not broaden the bases for conviction beyond those charged in the indictment, the district court did not constructively amend the indictment. See Randall, 171 F.3d at 203. The indictment plainly charged Appellant with a violation of § 7212(a), which criminalizes both intent to impede and successful impediment of the due administration of the IRC. Therefore, the district court's instruction on the definition of "endeavor" did not "change the elements of the offense charged, such that the defendant is actually convicted of a crime other than that charged in the indictment." Whitfield, 695 F.3d at 309 (internal quotation marks omitted). Moreover, as the Government submits, even if we were to find otherwise, the jury was entitled to convict Appellant of a lesser-included offense, i.e., attempt, which we conclude is the equivalent of "endeavoring." See Fed. R. Crim. P. 31(c).

Text corrected on 5/25/14:

I wanted to write briefly on my understanding (recently acquired) of the law of attempts because that law may not be familiar to federal practitioners, despite its inclusion in Rule 31(c).  There is a body of law called the law of criminal attempts or some such.  Many states have an "attempt" crime that states that, where a person intends to commit the substantive offense and undertakes something toward that goal (like an overt act in conspiracy law), the person can be convicted of the attempt even if the substantive offense is not completed.  The general notion is that, like conspiracies when they are never completed, there is sufficient societal harm from the acts and state of mind constituting the attempt that the attempt can be punished.  (I am not sure that state criminal attempts law will permit the conviction of the attempt and the completed crime; surely, the completed crime necessarily encompassing the attempt would be the sole punishment the legislature or the common law contemplated.)

Although many statutes have statutes punishing attempts to commit other crimes (United States v. Padilla, 374 F.2d 782, 787 n7 (2d Cir. N.Y. 1967)),

federal criminal statutes contain no general attempt provision. An attempt to commit a federal crime is punishable only where the section defining the crime specifically includes an attempt within its proscription. See United States v. Lucas, 6 F.2d 327 (W.D.Wash.1925); Michael and Wechsler, Criminal Law and Its Administration 584 n. 3 (1940). A number of federal criminal statutes specifically mention attempts. See, e.g., 18 U.S.C. § 2113(a) ("Whoever enters or attempts to enter"); 18 U.S.C. § 546 ("for the purpose of smuggling, or attempting to smuggle"); 18 U.S.C. § 1113 ("attempts to commit murder or manslaughter").

As read by the Johnson Court, Section 7212(a) is a federal criminal statute that could punish the attempt alone.  Hence, Rule 31(c)(3) would fit the case.  Although the Johnson court does not identify the applicable subsection, I think (c)(3) is it. (In this regard and the comparison to conspiracy, I note that in an earlier version of the CTM, DOJ Tax referred to the Section 7212(a) crime as a one person conspiracy.)

So, resolution of this case does not require delving into Rule 31(c)(2) in federal law.  If, as I think is the case, there is no general or general statutory law criminalizing attempts, I cannot quickly figure out what Rule 31(c)(2) does.  I have not spent a great deal of time researching the issue, because I solved my concern about Johnson with Rule 31(c)(3).

For readers desiring to pursue the scope of attempts under Rule 31(c), here are the LEXIS-NEXIS Keynotes for cases under Rule 31(c) (I do bold face some of the following content that seemed at least curious):

Defendant may be convicted of attempt to commit either offense charged or offense necessarily included therein, under Rule 31(c), only where section defining crime specifically includes attempt within its proscription. United States v Padilla (1967, CA2 NY) 374 F2d 782, 8 ALR Fed 928; United States v Rosa (1975, WD Pa) 404 F Supp 602, affd without op (1976, CA3 Pa) 535 F2d 1247 and affd without op (1976, CA3 Pa) 535 F2d 1248, cert den (1976) 429 US 822, 50 L Ed 2d 83, 97 S Ct 71 and affd (1977, CA3 Pa) 560 F2d 149, cert den (1977) 434 US 862, 54 L Ed 2d 135, 98 S Ct 191. 

Rule 31(c) permits conviction for attempt even when indictment charges only completed act; this reflects fact that grand jury that is willing to return true bill charging completed act would certainly be willing to indict for attempt. United States v Brozyna (1978, CA2 NY) 571 F2d 742. 

Since under Rule 31(c) there is right to verdict finding defendant guilty of attempt to commit offense charged, whether attempt is charged in indictment or not, there is nothing duplicitous in government charging attempt along with substantive crime. United States v Quinn (1973, ND Ga) 364 F Supp 432. 

Defendant was properly convicted of attempt to possess narcotic drug, though information charged defendant with possessing narcotic drug; even though it was not expressly charged that defendant attempted to commit crime, defendant was lawfully found guilty of attempt where there was substantial evidence that she attempted to commit crime charged and, in attempt, did certain acts toward commission thereof, but failed, or was prevented or intercepted in perpetration thereof. Simpson v United States (1952, CA9 Alaska) 13 Alaska 635, 195 F2d 721. 

Defendant was not guilty of attempt to distribute heroin where substance sold to undercover agent was actually uncontrolled substance, since to convict defendant under such circumstances would constitute punishment upon indirect evidence without reference to any objective fact; in absence of evidence of any heroin, defendant's conduct in making sale was not sufficient to constitute evidence of attempt. United States v Oviedo (1976, CA5 Tex) 525 F2d 881.

Attempted exportation of munitions without license contrary to Arms Export Control Act, 22 USCS § 2778, is lesser included offense of actual exportation under § 2778 because elements are same, except that latter offense requires that munitions actually leave U.S.; therefore, under Fed. R. Crim. P. 31(c), defendant charged with exportation may properly be found guilty of attempted exportation, even though offense of "attempt" is not alleged in indictment. United States v Castro-Trevino (2006, CA5 Tex) 464 F3d 536. 

Attempted housebreaking is lesser included offense to housebreaking. Newman v United States (1967, App DC) 127 US App DC 263, 382 F2d 479. 

Rule 31(c) permitting finding of guilt of lesser offense necessarily included in greater offense applies only to where there are degrees of particular offense, hence Rule 31(c) does not apply to Alien Smuggling Statute (8 USCS §§ 1323, 1324), since each attempt to bring in alien is separate offense whether brought in by defendant or by another. United States v Martinez-Gonzales (1950, DC Cal) 89 F Supp 62. 

Defendant who was indicted for possession of heroin with intent to distribute cannot be guilty of possession of heroin with intent to distribute where without knowledge of defendant informer substituted soap powder for heroin, but may be guilty under Rule 31(c) for attempt to commit crime. United States v Heng Awkak Roman (1973, SD NY) 356 F Supp 434, affd (1973, CA2 NY) 484 F2d 1271, cert den (1974) 415 US 978, 39 L Ed 2d 874, 94 S Ct 1565.