On Judge Kozinski's Retirement and Tax Crimes Opinion in Caldwell (12/18/17)

Judge Kozinski retired from the Ninth Circuit Court of Appeals.  See here.  He retired under a cloud of allegedly inappropriate conduct.  I can't speak to his inappropriate conduct other than to say that, if it occurred, as seems somewhat likely given the number of accusers, it was wrong and his leaving the federal bench is well-earned.

I do remind readers of this blog that Judge Kozinski has penned some great opinions in many areas of the law, including tax and tax crimes.  My favorite Judge Kozinski opinion on tax crimes is United States v. Caldwell, 989 F.2d 1056 (9th Cir. 1993), here.  He famously opens the opinion with:

We consider whether conspiring to make the government's job harder is, without more, a federal crime.

The federal crime in issue was the defraud / Klein conspiracy in 18 USC § 371, here, which has a common formulation of being conspiratorial conduct to impair or impede the lawful function of the IRS (or the administration of the tax law by the IRS).  Judge Kozinski's opinion emphasizes the need that the conduct must include "deceit, craft or trickery, or at least by means that are dishonest." as required by Hammerschmidt v. United States, 265 U.S. 182 1924), here.  (The terms fraud and defraud normally connote in the federal criminal law that the defendant acquire another's property by intentional misrepresentations, but the words in § 371 have been interpreted more broadly, but still require that the conduct must be deceitful or dishonest.

I hope readers will recognize from the way he frames the issue projects what his answer is.  (Appellate lawyers always try to frame appellate issues in a way that projects the conclusion they wish to reach, and judges do that as well.)

I urge students and lawyers to read the opinion both on its own and for the resonances with the tax obstruction crime in § 7212(a) (the Omnibus Clause), now before the Supreme Court in Marinello v. United States, 839 F.3d 209, 218 (2d Cir. 2016), cert. pending..  For myself, I wrote an article some time back on tax obstruction crimes and used Judge Kozinski's opinion on Caldwell to frame the issues.  John A. Townsend, Tax Obstruction Crimes: Is Making the IRS's Job Harder Enough, 9 Hous. Bus. & Tax. L.J. 255 (2009), here and in an online appendix with examples, Tax Obstruction Crimes: Is Making the IRS's Job Harder Enough? Online Appendix, 9 Hous. Bus. & Tax L.J. A-1 (2009), here.