MEMORANDUM OPINION
JAMES
E. BOASBERG UNITED STATES DISTRICT JUDGE.
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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