S.G. Files Brief in Opp to Petition for Certiorari in Flynn (5/19/21; 6/17/21)

I noted previously that a petition for certiorari was filed in United States v. Flynn, 969 F.3d 873 (8th Cir. 2020), cert. docketed, 20-1129 (Feb. 17, 2021) and that the Government was to file an answer on May 19, 2021.  See Fifth Circuit Holds that the Defraud/Klein Conspiracy Does Not Have Pending Proceeding Element; Update on Cert Petition in Related Case (Federal Tax Crimes 5/8/21), here.  The Solicitor General filed the answer today, a Brief in Opposition, here.

Just to review the bidding as of today, the following key documents are on file per the docket entries, here (where the various documents can be reviewed and downloaded).

• The petition was filed 2/11/12.
• An amicus brief in support of the petition was filed by the New York Council of Defense Lawyers on 5/2/21. 
• The S.G. Brief in Opp was filed on 5/19/21.
• Flynn's Reply Brief filed on 6/7/21.  (Added to Blog 6/17/21)

The Brief in Opp is 26 pages long (substantially longer than the Briefs in Opp I drafted while with DOJ Tax Appellate, but word inflation has crept into my writings since then).  The key issue that I think readers of this blog would be most interest is (p. (I), p. 2 of the pdf):

2. Whether a charge of conspiring to defraud the United States in violation of 18 U.S.C. 371 is void for vagueness absent a requirement that the government prove a nexus between a defendant’s conduct and a particular administrative proceeding.

This issue is basically the Marinello issue I mentioned in my earlier blog.

Flynn, in the petition for certiorari, stated the issue as follows (p. i, p. 2 of the pdf):

II. Whether the requirement for a nexus between a particular administrative proceeding and a taxpayer’s conduct is necessary to save the constitutionality of a conviction under an 18 U.S.C. § 371 conspiracy to defraud the Internal Revenue Service (Klein Conspiracy) after this Court’s decision in Marinello v. United States, 138 S. Ct. 1101 (2018).

The Government states it arguments on pp. 15-23 (pp. 22-30 of the pdf).  Basically, the arguments are:

First Circuit Decides NonTax Criminal Case With Issues Related to Issues in Tax Crimes Cases (3/27/13)

A reader, Eliot Silverman, here, brought to my attention a recent First Circuit opinion in a nontax criminal prosecution.  See United States v. Wu, 711 F.3d 1 (1st Cir. 2013), here.  In the case, the two defendants, formerly husband wife, were prosecuted for violating restrictions on the overseas shipment of weapons-grade technologies.  The criminal statute involved, like tax crimes, has a willfulness element.  I write this blog entry to address three issues in the case that may resonate with tax crimes.

Void for Vagueness

The defendants asserted that the prosecution which relied upon the defendants' violation of the law because of the inclusion of certain products on the Munitions List was void for vagueness.  Designated defense articles may not be exported without license from the State Department. The designations are made by regulations which are not subject to judicial review.  The designation is made by the Munitions List.  The Court explained the Munitions List as follows (p.12):

Pursuant to the President's authority under the AECA, the State Department has promulgated the International Traffic in Arms Regulations ("ITAR"), 22 C.F.R. pts. 120-130, which include the U.S. Munitions List, id. pt. 121. The Munitions List is not a compendium of specific controlled items; instead, it is a series of categories describing the kinds of items that qualify as "defense articles" requiring export licenses. The Munitions List contains "attributes rather than names" * * * *.

As noted, the crime involved required willfulness, which seems to be interpreted the same as the tax crimes element of willfulness -- intentional violation of a known legal duty.  The Court discussed the relationship of void for vagueness and the willfulness element as follows (pp. 13, 15):

Vagueness. At the outset, we address the defendants' argument that this carefully crafted regulatory scheme--which has remained in place for more than a quarter century--is unconstitutionally vague. The Fifth Amendment's Due Process Clause requires that "a criminal statute provide adequate notice to a person of ordinary intelligence that his contemplated conduct is illegal." Buckley v. Valeo, 424 U.S. 1, 77, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976) (per curiam); see also United States v. Anzalone, 766 F.2d 676, 678 (1st Cir. 1985). The "void for vagueness doctrine" addresses at least two discrete due process concerns: "first, . . . regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way." FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317, 183 L. Ed. 2d 234 (2012).