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.