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United States v. Marinello

United States Court of Appeals, Second Circuit

February 15, 2017

United States of America, Appellee,
v.
Carlo J. Marinello, II, Appellant.

         At a 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.

          Joseph 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, [1] 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 Judges.

          ORDER

         Following 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.

          DENNIS JACOBS, Circuit Judge, joined by JOSÉ A. CABRANES, Circuit Judge, dissenting from the denial of rehearing in banc:

         I 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.

         I

         Marinello 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 Code Annotated.

         The 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.

         Among the acts listed in the jury charge as violating the omnibus clause are:

• "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 ...

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