stated term of the United States Court of Appeals for the
Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
15th day of February, two thousand seventeen.
M. LaTona, Buffalo, NY, for Defendant-Appellant.
Russell T. Ippolito, Jr., Assistant United States Attorney,
Buffalo, NY, for James P. Kennedy, Jr., Acting United States
Attorney for the Western District of New York,  Appellee.
Present: Robert A. Katzmann, Chief Judge, Dennis Jacobs,
José A. Cabranes, Rosemary S. Pooler, Reena Raggi,
Peter W. Hall, Debra Ann Livingston, Denny Chin, Raymond J.
Lohier, Jr., Susan L. Carney, Christopher F. Droney, Circuit
disposition of this appeal, an active judge of the Court
requested a poll on whether to rehear the case en
banc. A poll having been conducted and there being no
majority favoring en banc review, rehearing en
banc is hereby DENIED.
JACOBS, Circuit Judge, joined by JOSÉ A. CABRANES,
Circuit Judge, dissenting from the denial of rehearing in
respectfully dissent from the denial of rehearing in banc.
The panel weighed in on the wrong side of a circuit split,
affirmed a criminal conviction based on the most vague of
residual clauses, and in so doing has cleared a garden path
for prosecutorial abuse.
was convicted at trial on nine counts. Eight of them (for
willful failure to file tax returns) raise no issue. The
single problematic count is for violating the "omnibus
clause" of the criminal portion of the Internal Revenue
Code, which makes it a felony to "in any other way
corruptly . . . obstruct or impede, or endeavor to
obstruct or impede, the due administration of this
title." 26 U.S.C. § 7212(a). Yes:
"this title" is the entire corpus of the Internal
Revenue Code--a slow read in 27 volumes of the United States
government charged that Marinello violated the omnibus clause
in eight different ways. And the district court instructed
the jury that it was enough for conviction that Marinello
violated the statute in any single one of those several
ways--and that the jurors did not need to agree among
themselves as to which.
the acts listed in the jury charge as violating the omnibus
• "failing to maintain corporate books and records
for Express Courier [his small business]";
• "failing to provide [his] accountant with
complete and accurate information related to [his] personal
income and the ...