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United States v. Adams

United States District Court, District of Columbia

January 10, 2019




         Defendant Ishmeal Heru-Bey, formerly known as Jamal Adams, was charged with three counts relating to obstructing the internal-revenue laws and tax evasion. A jury ultimately convicted him of one and acquitted him of two others. While his case was on appeal to the D.C. Circuit, the Supreme Court decided Marinello v. United States, 138 S.Ct. 1101 (2018), which the Government conceded rendered the jury instructions at Heru-Bey's trial plainly erroneous. The Circuit thus remanded to this Court to determine what effect on his conviction, if any, that error should have. This Court now concludes that it requires vacatur of the conviction and a new trial.

         I. Background

         As relevant here, Heru-Bey was convicted in 2015 of one count of corruptly endeavoring to obstruct and impede the due administration of the internal-revenue laws in violation of 26 U.S.C. § 7212(a). The Government advanced three factual bases for such obstruction: first, Defendant submitted W-4 forms in 2006, 2008, 2009, and 2010 falsely claiming that he was exempt from federal-income-tax withholding; second, he filed a bankruptcy petition in 2010 in which he did not list the IRS as a creditor even though he had tax debts; and third, he filed tax returns in 2011 and 2014 in which he falsely claimed unreimbursed employee expenses. See ECF No. 77 (Transcript 5) at 18. The defense's theory, although not fully responsive to all of these allegations, was that Heru-Bey's real-estate losses covered the tax deficiency, meaning that no tax was due. Id. at 44-56. In finding him guilty, the jury rendered only a general verdict and did not specify on which of the Government's three theories it had relied.

         Defendant appealed that conviction to the D.C. Circuit. See ECF No. 62 (Notice of Appeal) at ECF p. 12. While that appeal was pending, the Supreme Court issued Marinello, which further specified the requirements for a conviction under § 7212(a). It held that the Government must show a “relationship in time, causation, or logic” - viz., a nexus - between a defendant's conduct and “a particular administrative proceeding, such as an investigation, an audit, or other targeted administrative action.” Marinello, 138 S.Ct. at 1109. That is, a defendant must impede not the day-to-day administration of the tax code, but rather some specific investigation or activity, and there must be a relationship between his obstructive act and the Government's particularized proceeding.

         The Court of Appeals thereafter sua sponte ordered supplemental briefing “addressing the effect, if any, of the [Marinello decision]” on Defendant's case. See Briefing Order, United States v. Adams, No. 16-3021 (D.C. Cir. Mar. 27, 2018). In its brief, the Government conceded that the jury instructions - which did not contain the nexus requirement or detail the nature of the requisite IRS proceeding - were “‘e r r o r,' and that error [was] ‘plain' at the time of appellate consideration.” Appellee Supp. Br. at 5 (D.C. Cir. May 8, 2018) (citation omitted).

         Rather than decide whether that error required reversal, the Circuit “remanded [to this Court] to address in the first instance the effect, if any, ” Marinello has “on this case.” Remand Order (D.C. Cir. June 22, 2018). It further instructed that, because the Government had conceded “that the jury instructions at trial were erroneous under Marinello, and that this error was plain, ” it only “remains to be determined whether this error satisfies the final two prongs of plain error review” - namely, “whether the error ‘affect[s] substantial rights' and ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.'” Id. (citations omitted).

         Having obtained additional briefing on remand, see ECF Nos. 88 (Gov't Brief), 90 (Def. Response), 92 (Gov't Reply), this Court, accordingly, now addresses those questions.

         II. Analysis

         Objections not timely raised in the district court - such as this one - are reviewed for plain error. See United States v. Lawrence, 662 F.3d 551, 556 (D.C. Cir. 2011). That standard requires (1) error, (2) that must be plain, (3) that must affect a defendant's substantial rights, and (4) that must seriously affect the fairness, integrity, or public reputation of the judicial proceedings. See United States v. Olano, 507 U.S. 725, 732 (1993). Because the Government has already conceded that the first two prongs are satisfied here, the Court evaluates only the third and fourth.

         A. Substantial Right

         For an error to impinge on a substantial right, a defendant must demonstrate a “reasonable probability that the error affected the outcome of the trial.” United States v. Marcus, 560 U.S. 258, 262 (2010). This is the same standard used to assess prejudice in the ineffective-assistance-of-counsel context. See United States v. Eli, 379 F.3d 1016, 1019 (D.C. Cir. 2004). In that context, a reasonable probability is one “sufficient to undermine confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 694 (1984). The “undermines confidence” standard “is not a stringent one.” Hull v. Kyler, 190 F.3d 88, 110 (3d Cir. 1999); see also United States v. Gaviria, 116 F.3d 1498, 1514 (D.C. Cir. 1997) (“Strickland requires reasonable probability, not certainty.”). Indeed, “[i]t is less demanding than the preponderance standard.” Hull, 190 F.3d at 110.

         Here, Heru-Bey meets that lenient standard. The Court must determine whether there is a reasonable probability that, had the jury been instructed on Marinello's particularized-proceeding and nexus requirements, the outcome would have been different. While the kind of specific IRS proceedings that would satisfy Marinello are present in this case, evidence is lacking in the trial record to establish - under any of the Government's three theories of guilt - a relationship between those proceedings and any of Defendant's obstructive actions.

         At trial, IRS records custodian Kristy Morgan testified about Service proceedings involving Heru-B e y. See ECF No. 73 (Transcript 1) at 147-207; ECF No. 74 (Transcript 2) at 34-45. The agency first sent him a letter in December 2006, warning him that he had flouted his obligation to file a tax return in 2005. See 1 Tr. at 151; 2 Tr. at 34-35. In June 2008, it sent him a second letter regarding his failure to file returns in both 2005 and 2006. See 1 Tr. at 159-60. Weeks later, the Government notified Heru-Bey that it intended to prepare for him substitutes for return (SFRs) for 2005 and 2006; it completed those in July 2008. Id. at 157-160. The IRS finally issued in June 2009 statutory notices of deficiency regarding tax years 2005 and 2006, and in May 2010, it promulgated a ...

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