D.C. District Court Dismisses Tax Evasion and Tax Perjury Counts for Lack of Venue in D.C. (7/23/26; 7/24/26)

In United States v. O’Donoghue, ___ F.Supp.4th ___ (D.D.C. 7/22/26), the Court (Judge Colleen Kollar-Ketelly) dismissed 8 Counts of a 9 Count indictment for lack of venue in the District of Columbia. The opinion can be viewed: CL here, TN  here, and GS [to come]; the indictment can be viewed: CL here. The dismissed Counts were for tax evasion § 7201 and subscribing to false tax returns § 7201(1) (aka tax perjury). The undismissed count (Count 9) was for making false statements in a proffer session at DOJ offices in D.C., in violation of 18 U.S.C. § 1001.

This post will initially be a notice of the opinion with limited comment. I will post further analysis tomorrow. In the meantime, my initial reading is that it covers a lot of ground familiar to fans of tax crimes (the study rather than the commission). I say that because many leading tax crimes cases make at least a cameo appearance in the opinion.

The overall crux of the case is Constitution Article III’s requirement that trial “of all Crimes . . . shall be held in the State where the said Crimes shall have been committed.” This limits statutes that might otherwise permit venue elsewhere. The Government was relying upon such statutes to permit venue. More on this later. The Government was also arguing that the essential conduct for the 8 dismissed counts included conduct that was outside the U.S., thus permitting venue in the District of Columbia. The Court swatted that down. More on this later.

So, I will just post my quick reactions here and be back with more tomorrow.

1. The lawyering for O’Donoghue appears to have been great! He had good counsel, identified in CL here (click the Parties and Attorneys tab). I haven’t read the briefs but may do so tomorrow or even later—emphasize may because I am otherwise busy). I assume that there was good briefing because I infer that the Court worked from the submissions. Added 7/24/26 4:00pm: The CL Docket Entries are here (some with links to the briefing at ## 79, 89, 95 & 113 (all of . those key documents can be viewed rom the CL docket sheet, except the first; if someone who has joined CL will the CL docket sheet and retrieve it from PACER, it should show up on the CL Docket Sheet; I messed it up on PACER and PACER will not let me retrieve it again.)

2. This may be a pyrrhic victory because, even if the statute of limitations has otherwise closed, 18 U.S.C. § 3288, here, extends the statute of limitations for 6-months after dismissal, assuming an original timely indictment in D.C. Thus, it appears that the Government can seek an indictment in the Western District of Texas which will be a bit of an inconvenience because the undismissed Count (Count Nine, for false statements) will presumably be tried in the District of Columbia, which could add major costs to the Government and O’Donoghue.

Added 7/24/26 1:15pm:

This will be the analysis I promised in the original post (above). I continue the numbering started in the original post.

3. A defendant may waive venue. Singer v. United States, 380 U.S. 24, 35 (1965); and United States v. Knox, 540 F.3d 708, 716 (7th Cir. 2008) (“universally recognized as waivable). Presumably, O’Donoghue felt that by pressing the venue issue in moving for dismissal, the Government might either not indict in the Western District of Texas or, if it did and the grand jury returned an indictment, he would have a more favorable venue (judge and jury). Of course, I doubt that O’Donoghue could make that assessment alone; presumably his lawyers made the assessment and, after explaining to him, he made the decision to seek dismissal for lack of venue. Alternatively, now if on re-assessment as to where he wants the case tried (either D.C. or Western District of Texas), I wonder whether O’Donoghue can get the dismissal voided to waive venue in D.C.? I think his principal counsel are located in D.C., but Texas may be have judges or juries that are more taxpayer friendly.

4. The Court provides a good (I think) summary of the law on venue, called the “Legal Standard” (Slip Op. 7-8):

          In a criminal prosecution, the Government “bears the burden of establishing by a preponderance of the evidence that venue is proper with respect to each count charged against the defendant.” United States v. Morgan, 393 F.3d 192, 195 (D.C. Cir. 2004). “Proper venue in criminal trials is more than just a procedural requirement; it is a constitutionally guaranteed safeguard.” United States v. Root, 585 F.3d 145, 155 (3d Cir. 2009); Travis v. United States, 364 U.S. 631, 634 (1961) (“. . . questions of venue are more than matters of mere procedure.”).

          “Proper venue in criminal proceedings was a matter of concern to the Nation’s founders,” and this concern has been channeled into our Constitution, which “twice safeguards the defendant’s venue right” by tying venue in criminal trials to the place of the alleged criminal conduct. United States v. Cabrales, 524 U.S. 1, 6 (1998). Under Article III, the trial “of all Crimes . . . shall be held in the State where the said Crimes shall have been committed;” only when a crime is “not committed within any State” may Congress direct venue elsewhere. U.S. Const. art. III, § 2, cl. 3. The Sixth Amendment “reinforces that command,” Abouammo v. United States, 146 S. Ct. 1571, 1576 (2026), by protecting a defendant’s right to be tried by a jury “of the State and district wherein the [charged] crime shall have been committed,” U.S. Const. amend. VI. In sum, and as the Federal Rules of Criminal Procedure explain, the constitutional baseline for venue in criminal proceedings is that “the government must prosecute an offense in a district where the offense was committed.” Fed. R. Crim. P. 18.

          “A crime is ‘committed,’ for venue purposes, where its ‘essential conduct elements’ are completed.” United States v. Jin, No. 23-cr-091-2 (CKK), 2025 WL 2409749, at *13 (D.D.C. Aug. 19, 2025) (quoting United States v. Rodriguez-Moreno, 526 U.S. 275, 280–81 (1999)). [*8] Accordingly, “[t]o implement [the] constitutional rule—meaning, to decide where the crime was committed—courts generally must determine the location of the offense’s ‘essential conduct elements.’” Abouammo, 146 S. Ct. at 1576 (quoting Rodriguez-Moreno, 526 U.S. at 280). To determine the “essential conduct elements” of an offense—also referred to as “the conduct constituting the offense”—courts must identify “the things a defendant must do to violate the statute at issue.” Id.; see also Jin, 2025 WL 2409749, at *13 (quoting Rodriguez-Moreno, 526 U.S. at 280) (explaining that “courts must consider not only the ‘verbs of the statute,’ but also any other elements that the Government must prove to obtain a conviction”). An offense’s “essential conduct elements” may be committed in one district, multiple districts, or, in the case of an entirely foreign crime, no districts at all. Regardless, “the [venue] inquiry remains one into the place of the crime’s conduct elements—the acts that the prosecution must prove to secure a conviction.” Abouammo, 146 S. Ct. at 1577.

4. The Court then applies the legal standard to the facts and the charges (tax evasion and tax perjury) in the balance of the opinion.

a. The Court first addresses the tax perjury (§ 7206(1), which it calls the “false-subscription charges.” Under O’Donoghue’s facts, the only act in the United States for venue purposes was the filing of the returns in the Western District of Texas. The returns were prepared by a return preparer in Croatia and were signed by O’Donoghue somewhere outside the U.S. The Government sought to apply the “high seas” venue statute, 18 U.S.C. § 3238, titled Offenses not committed in any district, here, which provides venue for “offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or District” in the District the defendant is first brought into the U.S., the last known U.S. residence of the defendant, or, if no such residence is known, in the District of Columbia. The Court focused on whether the significant acts in the elements of the crime (which it calls “essential conduct elements”) and where they or it occurred. As the Court analyzed § 7206(1), the essential conduct element was the filing which occurred in the Western District of Texas. Although the signature on the return is essential to the crime, the filing is the essential conduct element. Indeed, it is fair to say that no crime is committed if the filing is completed.

I am a bit surprised at this result. I ask some questions. Would signing a false return without filing it be a crime? Of course the answer is no. Would, for purposes of venue, a signing of the return in D.C. and filing of the return in the Western District of Texas permit venue in D.C.? I would think the answer to that question is yes? If the answer to that question is yes, then I question the holding. (Caveat, I have not specifically researched that question, so I am not saying the Court misapplied the law; I just question for further research as I am compelled to address the issue.)

b. The Court applies a similar analysis (but with more twists) to the tax evasion charges, which the Court calls evasion of assessment (as opposed to evasion of payment). (Slip Op. 22-45.) Of course, for that analysis the Court does not have the handy foil that § 7206(1) offered—the essential conduct element of a filed return. Tax evasion can be committed in whole or in part by a filed return (in the jargon an affirmative act of evasion), but a filed return is not necessary—other affirmative acts of evasion are sufficient for tax evasion. And certainly, in the tax evasion charges such offshore acts of evasion can be charged.

c. The Court also swats down a claim that O’Donoghue’s statements made in a proffer session in the District of Columbia were acts of evasion.  (Slip Op. 27-44.) The Court surveys the law of tax evasion to derive some concept, attributed to United States v. Grunewald, 987 F.2d 531 (8th Cir. 1993) that criminal tax investigations (such as the grand jury investigation prompting O’Donoghue’s proffer session) which are not civil tax investigations where the tax liability is investigated. By slicing and dicing the alleged facts of the proffer, the Court concludes that tax evasion was therefore not an object of any alleged false proffer session statements.

I am not sure that is correct but again I have not researched the issue or thought in as much depth about it as have the Court and the parties’ counsel.

d.The Court also rejects an O’Donoghue argument as follows (Slip Op. 35, footnotes omitted):

       However, O’Donoghue’s proposed general rule—that tax evasion charges based on the filing of false or fraudulent returns are necessarily complete at the time of filing—is also in tension with Section 7201’s broad prohibition against any attempt to evade or defeat any tax or the payment thereof “in any manner,” 26 U.S.C § 7201, which has been interpreted to apply to “any conduct, the likely effect of which would be to mislead or to conceal,” that is accompanied by a “tax-evasion motive,” Spies, 317 U.S. at 499. In light of this expansive prohibition, a number of circuit courts have explained that the statute of limitations for tax evasion begins to run upon the “last evasive act,” and that “evasive acts following the filing of a return may be considered part of the offense.”15 United States v. Anderson, 319 F.3d 1218, 1220 (10th Cir. 2003). The Court, however, is not aware of any caselaw applying the “last evasive act” analysis to the question at issue here—i.e., whether, for purposes of venue, post-filing conduct can be considered part of a charged assessment-evasion offense that is based on an allegedly false filing—and there appears to be some disagreement as to whether the analysis applies only to payment-evasion cases or extends to assessment-evasion cases based on the filing of allegedly false returns. Compare Uscinski, 369 F.3d at 1247 n.* (holding that the analysis does not apply to assessment-evasion cases based on false filing because “[w]here a tax return has been filed, Sansone applies; and the tax evasion is complete upon filing”), with Orrock, 23 F.4th at 1209 (holding that “the last affirmative act of evasion rule applies to both cases” of payment-evasion and assessment-evasion). [*36] But the parties have not addressed these issues, and the Court need not reach them to resolve the matter at hand. For present purposes, the Court concludes that, while an assessment-evasion offense based upon the filing of an allegedly false return will typically be complete upon the filing of said return, there may be certain circumstances where a post-filing act of evasion constitutes a part of such an offense.16

c. Along the way, in both holdings, the Court cites iconic tax crimes cases for various steps in its reasoning.

Some side (perhaps far-side or dark-side) points: 

5. The Court “finds” that a precedent applies in full force. (Slip Op. 22.) I don’t think the Court’s choice of the word “finds” is critical to its opinion. Thus, I think the Court could have used “holds” or some such to signal that it was using legal reason rather than a finding of fact. I have recently focused on “lawfinding” as a legal counterpart to “factfinding” and have developed authority for the proposition that “lawfinding” can have a burden of persuasion just like factfinding. If the party with the burden of persuasion fails to convince the court that the facts and the law compel (usually by burden of persuasion) a favorable result, the party loses on that point. Indeed, as I develop in an article for the ABA Tax Lawyer, the APA compels that result in § 706(2)(A) which permits a court to “set aside” an agency action (interpretation in an interpretive regulation) only if it is “not in accordance with law.” Dobson v. Commissioner, 320 U.S. 489 (1943), a tax case involving that precise standard of review for Tax Court decisions (really opinions). The Dobson interpretation of the words functions like deference (which is now something like the legal equivalent of a dirty word); rather it is just a default rule to apply when the court is in ambiguity (i.e., interpretive equipoise). Of course, I am swimming against the tide because the Supreme Court in Loper Bright at least suggested that there can be no statutory ambiguity. That claim, if it is a fair reading of Loper Bright, is nonsense. In any event, even though it does not cite Dobson or even § 706(2)(A) except in passing without understanding that it was inserted in the APA to adopt the Dobson reasoning, the Supreme Court has spoken ex cathedra so that, although false, it must be accepted in the legal community because the Supreme Court has spoken.

6. The Court has redacted some lines. (E.g., pp. 4 & 5-6.) I don’t think the redactions take away from the learning readers can derive from the opinion.

7. Two of the pages in the CL version (pp. 23 and 29 do not permit copying and pasting; I note that the TN version seems to get the text right but does not provide page numbers for the slip opinion. (A lament: why does TN not provide the slip opinion page numbers; of course, as a free user to the resources TN offers free, I have should not question.)