Marinello v. United States

Oral argument transcript · No. 16-1144 · October Term 2017 · argued December 6, 2017 · the petitioner won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

Advocates

• Matthew S. Hellman, Washington, D.C., for the petitioner
• Robert A. Parker, Assistant to the Solicitor General, for the respondent

Transcript

From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We'll hear argument next in Case 16-1144, Marinello versus United States. Mr. Hellman. ORAL ARGUMENT OF MATTHEW S. HELLMAN ON BEHALF OF THE PETITIONER

Matthew S. Hellman: Thank you, Mr. Chief Justice, and may it please the Court: When Congress made it a felony to obstruct the due administration of the tax code, it was not creating an all-purpose tax crime; it was borrowing from a statute that prohibited the obstruction of a pending proceeding. This Court normally presumes that borrowed language carries its meaning with it. And that has to be the case here, for without that limitation, obstruction would swallow up the other crimes that Congress simultaneously enacted and, in particular, it would obliterate the careful line that Congress drew between misdemeanors and felonies. Indeed, the government's Official 1 interpretation is so broad that it would chill entirely legitimate conduct that Congress never intended to penalize.

Justice Ginsburg: What -- what -­ what lawful conduct would the government's reading put at risk?

Matthew S. Hellman: Certainly. There's a whole range because obstruction, on their definition, is so broad. For example, you could imagine a situation -- I'll take an everyday taxpayer, someone who pays their gardener, say, in cash, which is one of the predicate acts in this case as well. Paying in cash isn't necessarily illegal under the tax laws, but the test that the government would have is, by paying someone in cash, you're -­ you're making it harder for the IRS to assess perhaps your tax liability or perhaps the tax liability of the person that you are paying. And at that question -- at that point, the only question that remains is mens rea, why did you do it? Did you do it for the purpose of obtaining an unlawful benefit? And even -­ that benefit need not even be your own under the government's reading; it could be the Official 1 benefit of the gardener. Or to take another example, imagine a taxpayer who says I'm going to keep every document the law requires under the code. I'll keep every document but no documents more. If the IRS ever came back and looked at that person's tax position, they might say your failure to keep these documents that -- that aren't otherwise required hindered us in our ability to assess your taxes. At that point, again, the only question becomes the why, the mens rea. And with a felony prosecution on the line and with so many acts, the actus reus being so broad, anything that hinders the IRS's ability to carry out a code, obstructs -­

Justice Sotomayor: My problem is that I have -- a second question.

Matthew S. Hellman: Sure.

Justice Sotomayor: I have a lot of hypotheticals under your definition of what this section means that wouldn't be covered. So how about if an individual knows that the IRS is in the presence of -- press -- in the process of assessing his taxes and he in some Official 1 way obstructs that process, or an agent -- the agent in 2004 called the defendant and said: You know, I'm deciding whether to open an investigation. I haven't, but I'm just thinking about it. I understand you have this business, and I don't see any tax returns. And your client answered the way he first did: I make less than $1,000. I don't have to file. And the agent closes the investigation -- closes the file and says: I'm not going to investigate this. Under your theory, that direct obstruction would not be actionable?

Matthew S. Hellman: It would be several other crimes. As -- as you describe it, it sounds like tax evasion, if there's a deficiency and an evasive act in connection with it. It could be a false statement to the IRS. But Congress knows how to write a pending proceeding requirement. If you think back to the statute at issue in Arthur Andersen, Section 1512, another obstruction statute that applies in cases of corruption to proceedings, that 1512(f), which Congress enacted as part of Sarbanes-Oxley, Official 1 says the proceeding need not be pending or even about to be instituted. Now, this Court -­

Justice Sotomayor: Well, wait a minute, yes, it can do that sometimes.

Matthew S. Hellman: It can do that.

Justice Sotomayor: It doesn't other times.

Matthew S. Hellman: It doesn't other times. And -­

Justice Sotomayor: So is this one of those other times?

Matthew S. Hellman: Well, I think the -- the right way to understand it is Congress is -­ the "need not be pending" language was a product of a 1980s revision to the statute and really started to apply to documents in Sarbanes-Oxley.

Justice Sotomayor: Do you think the word "administration" -- "due administration of this title," does any work in the interpretation? It seems to me that one could say that the example I gave is an actual affirmative act by the agency. It is -- the agent is calling and doing his work under the Official 1 Act but that what you do outside of interacting directly with the agency is more omission, which is not the administration of the Act. Could that line be drawn?

Matthew S. Hellman: I don't -- that's certainly not the line the government is offering, but -- but -­

Justice Sotomayor: It's not the line the government's offering -­

Matthew S. Hellman: Is offering.

Justice Sotomayor: -- but yours is -­ your broadness is sweeping up a lot of conduct that I think could be perceived as active obstruction of the work of -- the direct work of the agency. An agent calls you and you mislead them.

Matthew S. Hellman: Well, a couple responses. As I said, those are covered by other crimes in the statute, false statements. Could even be covered by the officers clause of this statute. But I think that the key for this is, in some sense, and I think the point of your question is, not paying your taxes, failing to file a return, failure to make a payment, we would concede is in some sense Official 1 obstruction of the administration of the code, but that can't be what Congress had in mind for this statute because we know what they thought the penalty for those crimes should be. They should be a misdemeanor. Those people should not be branded as felons. It's wrong, it's a crime, but it's a misdemeanor punishable by one year. And, you know, essentially, on one page of the code, they're calling this conduct a misdemeanor. And then, on the government's view, actually, it turns out that -- it turns out to be felony obstruction. And these are provisions that were the product of an intense, multi-year process of reforming the tax code, where Congress specifically debated back and forth between the House and the Senate about whether some of these crimes should be classified as misdemeanors or felonies. And so I think when you're trying to read a statute as a whole -- and here the need to do that is at its apex because we're not talking about different provisions that were enacted over a series of decades. This was Congress's concerted attempt to codify and Official 1 calibrate the penalties that it wanted. And then to find out that actually everything turns out to be a felony because in every -- any act that violates a tax law could in some sense be meant -- understood to be obstructing the administration of the code, that's not a plausible way to read a statute.

Justice Alito: Mr. Hellman, I -­

Chief Justice Roberts: Do you suggest --

Justice Alito: I'm sorry.

Chief Justice Roberts: You -- you raised that specter in -- in your brief. In your experience, is that happening on the ground? I mean, is it the case that you find indictments always -- excuse me -- always tacking on charges under this provision?

Matthew S. Hellman: Yes, Your Honor. And I -- and I think the tax amici and other amici who have filed in this case speak to that. I took a look -- and this is just my own personal review of the cases -- in the -­ beginning in the -- really in the '90s and then in the 2000s, you start to see 7212 obstruction charges brought in -- there's hundreds of Official 1 cases. You can go online and just look for where those charges have been brought, even in reported cases. And as we discuss in the brief, the predicates are -- are now becoming ones in which failure to file a return is becoming a predicate, failure to pay taxes is becoming a predicate.

Justice Breyer: Well, suppose -- to go to your first example.

Matthew S. Hellman: Please.

Justice Breyer: I just often wondered this. I think -- remember the gardener?

Matthew S. Hellman: Yes.

Justice Breyer: Well, suppose you hire somebody to shovel your snow off your steps -­

Matthew S. Hellman: Sure.

Justice Breyer: -- every three weeks or so or every week or -- and the gardener does some gardening, burns some leaves, and you pay him more than $600 over the year.

Matthew S. Hellman: Right.

Justice Breyer: Then I guess you're required to file a 1099 for them. Official

Matthew S. Hellman: That's right, which is they -­

Justice Breyer: I know -- I don't know people who do. I mean, maybe everybody in the country is a law breaker. But I -- but I mean, if -- if their interpretation is correct, in your view, that would give them the power in their discretion to indict, I won't say half the country, but -- but a -- but a very significant number of people, is that right?

Matthew S. Hellman: Yes, that -- that is correct.

Justice Breyer: If they know of this requirement and if they want to help the gardener or whatever.

Matthew S. Hellman: That's correct. And I think another -­

Justice Breyer: And that is right, you're sure that's right?

Matthew S. Hellman: I -- I -- yes, that is correct -­

Justice Breyer: All right.

Matthew S. Hellman: -- because it comes down to -- to the mens rea of the -- of the person who's filling out that form. Official

Justice Breyer: Well, they want to help the gardener and they know about it.

Matthew S. Hellman: That's right. And I think another -­

Justice Alito: Well, Mr. Hellman, I -- I mean, I share the -- your -- your concern that if this statute is read in its broadest possible literal sense, it has a really staggering sweep, but I wonder if your interpretation really solves the problem because can't the same sorts of things happen after a proceeding has commenced? Let's say somebody is being audited and eventually the person comes up with the records that the auditor needs, but they're all scrambled up, and it looks like -- and -- and the person is -- is late in providing them and misses meetings and just is very difficult. You could get the same situation there, couldn't you?

Matthew S. Hellman: I suppose you could, but there's a difference as to why I think the statute ought to tolerate prosecution in that scenario, which is where there's been a formal notice of audit and someone has been given Official 1 questions by the government and needs to respond in a reasonable manner to them. You can understand why Congress wanted to make that a crime distinct from, maybe on top of, other crimes that a person has committed. But if we're talking about the maintenance of records prior to the initiation of that proceeding, then there are many other crimes that do cover recordkeeping and, of course, your obligation to pay taxes. But those are generally, with the exception of tax evasion, generally not felonies and they generally have a lower sentence than the one here. So I do take your point that there could be the potential for abuse, even under our interpretation, but I do think that it's significantly narrowed just for the reasons that I said.

Justice Gorsuch: Mr. -­

Justice Kagan: Mr. Hellman, there are obvious reasons to search for a limiting interpretation here.

Matthew S. Hellman: Yes.

Justice Kagan: I guess the question Official 1 is why your limiting interpretation? And obviously you talked about this in your brief. But I just want to give you an opportunity now to try to convince me, because right now I feel as though it comes out of thin air. It doesn't have any grounding in the text of the statute. And I guess I'm not seeing quite how the precedent gets you there. So -­

Matthew S. Hellman: Absolutely. I think the -- the key reasons why we would think that Congress had 1503 in mind when it was talking -- when it was enacting 7212 are the following: You've got a statute, 1503, enacted just a few years before, six years before. It doesn't just talk about obstruction of the due administration of something. It's got that two-part structure with officers in the first half, administration in the second. It's got those same verbs, to impede or intimidate the officer, or impede or obstruct the proceeding. And you also have the same means by which you're doing it. So you put that all together and, on top of that, the fact that there's nothing unusual about obstruction Official 1 proceed -- obstruction statutes having proceedings as their focus. There are several obstruction statutes after 1503 in the code that all talk about obstruction of proceedings. So -- so, when you talk about obstruction of the due administration, it's sort of a natural marriage of that concept to proceedings. Now, there's no legislative history that speaks to this one way or the other. We certainly concede that.

Justice Ginsburg: But wasn't there the predecessor of 1503? It was oriented toward courts.

Matthew S. Hellman: It -- it was expressly -- said, obstruction in a court, in effect, that's correct. But when Congress recodified that statute six years before 7212, they said that they were not making any substantive changes. So that was the language on the shelf, if you wanted to have a two-part obstruction statute: one for the officers, one for the due administration. Official 1 It's really the model. And I don't think that word choice can be explained by -­ by coincidence. And then, of course, you have the problem of, again, what would -- the government's alternative interpretation puts a code that would stretch across this, you know, this entire table, any violation of it, which is potentially a felony. If I would, I wanted to go back to one other way in which -- and this is not just an omissions point, this is an affirmative acts point -- 7205 in the tax code. If anybody's ever been an employee in this country, when you start your job, you fill out the W-4 form where you say how many dependents you have, which controls how much withholding your employer will take out of your -- your paycheck. I, too, know many people who don't put down the true number of dependents that they have in order to affect the withholding that they get. In some sense, that is an unlawful benefit. Money's being -- not being withheld that should be. But we know that Congress wanted to punish that as a misdemeanor, not a Official 1 felony. Now -­

Chief Justice Roberts: You think a lot of people do that? I mean, you've got three children and they say they've got five?

Matthew S. Hellman: In my experience -­ well, in any case -­

Chief Justice Roberts: Well, your experience because -­ (Laughter.)

Matthew S. Hellman: -- experience -- I -- I was responding to Justice -­

Chief Justice Roberts: I mean, people who get caught come to you. So, in your experience, you see a lot of them. (Laughter.)

Matthew S. Hellman: Right. There may be a category problem there. I -- I agree.

Justice Ginsburg: Yeah, there are people who list their dogs as dependents.

Matthew S. Hellman: Well, I'll defer to Justice Ginsburg on that. (Laughter.)

Justice Breyer: I wasn't thinking of those people. I just think that there are Official 1 many, many, many, many regulations in the code that are -- seem to be quite trivial to an ordinary person. And they might, in fact, not pay that much attention to every form and, moreover, maybe they even want to help the gardener. All right? Now, I think there are many such people in the 1099 case, but I don't know. That's why I asked you whether it was an appropriate example.

Matthew S. Hellman: And I do believe that it is one.

Justice Gorsuch: Well, Mr. Hellman, what role should lenity play here, if any?

Matthew S. Hellman: Well, I think this Court's decisions in Aguilar and Arthur Andersen sort of point the way in that direction. We haven't made a constitutional argument in this case that it would be unlawful, unconstitutional for Congress to write a statute, the statute that the government says they wrote here. But -­

Justice Gorsuch: Saving that for the next case. Official

Matthew S. Hellman: We'll save that for the next case. But what we have most definitely argued in this case is that, as the Court explained in Aguilar, before this Court will assume that Congress meant to felonize every immoral act under the sun, we're going to want them to say that a little bit more clearly than they -- than they did in the statute.

Justice Breyer: But how did they in Aguilar? I mean, I took -- I read the language in Aguilar and I thought it was very helpful to your case. The statute's identical -­

Matthew S. Hellman: Yes.

Justice Breyer: -- virtually, except administration of justice instead of administration of this title.

Matthew S. Hellman: Correct.

Justice Breyer: And then it's quite limited how they interpreted it. But I -- I'm not totally clear as to what significance -­ they said something about a nexus -­

Matthew S. Hellman: Yes.

Justice Breyer: -- but a nexus to what? I mean, and -- and -­

Matthew S. Hellman: Sure. Official

Justice Breyer: -- what's your understanding of that?

Matthew S. Hellman: So, as I read Aguilar, it's a nexus to a pending proceeding. So, in that case, the defendant lied, that was conceded to an FBI agent, but it wasn't clear that those statements were ever going to get into court into a grand jury proceeding. They might or might not in the words of the Court. And what the court -­

Justice Breyer: So your argument is nexus to a pending proceeding, interpreted with the same language except it says administration of justice should lead us to say nexus to a pending proceeding in a statute that's identical, but the words are administration of this title.

Matthew S. Hellman: Yes.

Justice Breyer: Is that the argument?

Matthew S. Hellman: That is.

Justice Breyer: All right.

Matthew S. Hellman: And, again, to respond to Justice Gorsuch's question, the Court has proceeded carefully with lenity in mind when it -- when it's looked at a statute that the Official 1 government has said covers everything that one might want to punish, but doesn't clearly say that that is what we intend to punish, and both considerations of fair notice and, as the Court put it, deference to the prerogatives of Congress suggests that a more narrow interpretation is called for.

Justice Kagan: Well, is that what lenity means? This -- for sure this is a broad statute.

Matthew S. Hellman: Yes.

Justice Kagan: It doesn't seem very ambiguous. You know, lenity, usually we're looking for a grievous ambiguity, sort of like the last case where it's like, I don't know, you could read it this way, you could read it that way. What do we do? But that's not this statute. This statute, taken on its face, is just ungodly broad.

Matthew S. Hellman: I understand the Court's lenity doctrine to say that once you apply the normal tools of statutory interpretation, if you're really left with good arguments on both sides, there's real ambiguity, important Official 1 ambiguity. In a criminal case, you go with the less harsh interpretation. And I do -­

Justice Gorsuch: So -- so, for example, if we are left with some ambiguity as to your Aguilar analogy, that's when you would suggest perhaps lenity might be a tiebreaker?

Matthew S. Hellman: Yes -- yes, I do. And -- and with respect to Justice Kagan's question, I think that these words read in isolation do suggest breadth. But reading them in isolation isn't the -- the only step obviously of statutory interpretation. We have to look at it in context. And this is an incredibly strong case where context ought to matter, where you have Congress intentionally trying to bring together in one place, I believe is the phrase they used, all of the disparate tax crimes and recalibrate them as they saw fit. So, again, the statute, read in isolation, I certainly take the point that it -- it looks broad and strong and "ungodly broad," to use your phrase, but that isn't the end of the statutory analysis. And once you do Official 1 all of the steps -- you look to where the language comes from, you look to what it might mean in context with other provisions right next door to it -- at that point, we suggest -­ we think we have the better of the argument, but at a minimum, at a bare minimum, there are competing interpretations that -- where the rule of lenity might apply.

Justice Sotomayor: There -- there is something to be done about the context that this was drafted in. As I look at the first half of this statute -­

Matthew S. Hellman: Yes.

Justice Sotomayor: -- "Whoever corruptly or by force or threats of force (including any threatening letter or communication) endeavors to intimidate or impede any officer or employee of the U.S. acting in an official capacity" -­

Matthew S. Hellman: Yes.

Justice Sotomayor: -- "... or in any way corruptly or by force or threat of force, (including any threatening letter or communication) obstructs or impedes, or endeavors to obstruct or impede, the due Official 1 administration of this title." All of that seems to be geared towards some affirmative act aimed at an agent or the agency. That's where I got my earlier -­

Matthew S. Hellman: Yes.

Justice Sotomayor: -- differentiation between -­

Matthew S. Hellman: Yes.

Justice Sotomayor: -- a affirmative act and an omission act because that doesn't have the flavor of force or threat of force or threatening, all of the sort of active, violent or active, obstructive -­

Matthew S. Hellman: Right.

Justice Sotomayor: -- behavior that the examples set forth.

Matthew S. Hellman: I think I understand your question better now. And I have a couple of responses. I don't think the omission limitation will get -- will make sense of the tax criminal code for a couple of reasons. One, there are several misdemeanor offenses under the code that are not omission offenses; they are affirmative act offenses. And Congress showed Official 1 a lot of thought: Making a false statement in connection with your taxes -- that's an affirmative act -- is a misdemeanor unless you -- unless you make that statement under the penalty of perjury. That is the difference between Section 7207 and Section 7206, subsection (1). That distinction between bad kinds of false statements, affirmative acts, is obviated, obliterated, by an interpretation of obstruction that says, when you make a false statement to the government, it has the effect of hindering, even if you didn't make it under the penalty of perjury. You might have made it not in that connection. So I don't think that an omissions-based approach makes -- you know, gets -­

Justice Gorsuch: Well, does it get us part of the way there, though? Because the officer clause, as Justice Sotomayor suggests, you have to actually hinder something the officer is doing. And could that same spirit or thought be thought to apply in the administration as well, that the IRS has to be Official 1 doing something? Your preceding thought is a -- is a doing, it is a thing; it is not just merely -- I think the IRS speaks of the pervasive, continuous, brooding omnipresence of --

Matthew S. Hellman: Yes. Right.

Justice Gorsuch: -- of tax liabilities, that there's an implication from the officers clause that there's something more going on. Am I -- maybe that's not entirely helpful.

Matthew S. Hellman: Well, what I would say is if -- if the thought is by limiting obstruction to any affirmative act that hinders the IRS in any way, you have not brought the statute -­

Justice Gorsuch: No, no, no. No, no, limiting it to some affirmative act going on by the agency, I think, is what Justice Sotomayor was suggesting, that the agency has to be doing something other than merely passively receiving taxes.

Matthew S. Hellman: Well, and, of course, all of the conduct or omissions in this case are not in that context. Official

Justice Gorsuch: Correct.

Matthew S. Hellman: So -­

Justice Gorsuch: It's -- it's a friendly amendment. (Laughter.)

Matthew S. Hellman: Then that's not the rule we have adopted or endorsed to the Court, but -- and, again, you would have some other -­

Justice Sotomayor: I have difficulty getting to what you have -­

Matthew S. Hellman: Right.

Justice Sotomayor: -- because you haven't, as Justice Kagan pointed out, given us anything in the language to anchor this in. At least -­

Matthew S. Hellman: Right.

Justice Sotomayor: -- Justice -- it appears Justice Gorsuch and I are trying to look at the language.

Matthew S. Hellman: So what I would say in response to that is we would accept -- because there is no act in question here that falls within that rule. So, if you're asking me do I think that -- you know, would we accede to that, yes, we would. Official 1 But I would point out that -­

Justice Sotomayor: A win is a win is a win.

Matthew S. Hellman: A win is a win, for certain, but I just want to be -- be certain that the Court fully appreciates that the line between when the IRS is doing something and not doing something at times can be a little bit blurry. And so, you know, I'd want to think about your proposal, but in any case, the -­ the key part is unless there's a proceeding -­

Justice Sotomayor: You just helped the government a lot with that statement.

Matthew S. Hellman: I hope I did not. (Laughter.)

Matthew S. Hellman: The -- our submission to this Court is that the government's interpretation in this case cannot be correct. We have offered language that comes directly from a predecessor statute dealing with proceedings, but I understand the Court's point that you might define proceedings a little more broadly than we do -­

Justice Gorsuch: I'm not even arguing with you. Official

Matthew S. Hellman: Yeah.

Justice Gorsuch: I'm just suggesting that the officers clause might be a source of some aid to you.

Matthew S. Hellman: Agreed.

Justice Gorsuch: That's all I'm doing.

Matthew S. Hellman: Absolutely agreed. Absolutely agreed. Now, the other part I wanted to make sure I -- I said before I sat down was the government's interpretation in this case, although they push it now, is not one that they had invoked for nearly 30 years after the statute was enacted. Although they claim it's -- there is no ambiguity, there is no need for lenity, this is a -- an interpretation that really came into fruition in the '90s, and with increasing frequency in -- in many, many cases, this is now being charged. And if the Court has no further questions, I will reserve the rest of my time for rebuttal. Thank you.

Chief Justice Roberts: Thank you, Official 1 counsel. Mr. Parker. ORAL ARGUMENT OF ROBERT A. PARKER ON BEHALF OF THE RESPONDENT

Robert A. Parker: Mr. Chief Justice, and may it please the Court: I'd like at the very outset to address several of the things that my friend just said. He -- he suggested that entirely lawful conduct would come within this statute. We think that that is incorrect. He suggested that this statute swallows all of the other misdemeanor provisions of the code. We think that that is incorrect. And I -- I want to just take a moment to explain why we think -­

Justice Sotomayor: So how about the one example he does give? People go into shelters thinking they might be legal, might not. I'm going to role my dice. Would that be a corrupt intent?

Robert A. Parker: I -- I don't believe so -­

Justice Sotomayor: Why?

Robert A. Parker: -- because there is not Official 1 the specific intent to obtain an unlawful advantage. You have to not only be intending to advantage yourself but know that there -­ that the advantage is unlawful. And so that -- that, I think, goes directly to the -­

Justice Gorsuch: Well, Justice -­ Justice Breyer's snow shoveler, all right, I -­ I think you -- he's a felon under your interpretation because the -- the person who's paying him knows that, above $600 or whatever it is, I have to file a 1099. I'm not doing it -- I'm doing it for an unlawful advantage for the snow shoveler. I know it. I'm a -- I'm a federal felon.

Robert A. Parker: Well -­

Justice Gorsuch: For my -- for my friend's son's snow shoveling business.

Robert A. Parker: Well, I -­

Justice Gorsuch: Right?

Robert A. Parker: I think that that -­

Justice Gorsuch: I mean, the answer is yes, I think, isn't it? (Laughter.)

Robert A. Parker: That -- that circumstance Official 1 may come within the scope of the statute.

Justice Gorsuch: I'm waiting for a yes or a no. You can just -- it may come within the scope. So that's a yes?

Robert A. Parker: Yes. Yes, but I think that the -­

Justice Gorsuch: Okay. All right.

Robert A. Parker: I think it -- it bears explanation as to why. I mean, first, I think that the threshold is actually $2,000.

Justice Breyer: Well, the reg I saw said 600.

Robert A. Parker: But -- well, but that's if you're a business employing an independent contractor, so an -- an individual. But -- but I don't want to -- I don't think that that matters. The -- the point, though, is if you --

Justice Gorsuch: How -- how is somebody supposed to know when they're going to be in trouble here? Because it seems like paying cash -­

Justice Breyer: Uh-huh.

Justice Gorsuch: -- can sometimes be a problem. That was part of the indictment and Official 1 -- and the jury instructions here. Or keeping records, failure to keep records -­

Justice Breyer: Right.

Justice Gorsuch: -- that you didn't -- that aren't lawfully obliged to be kept.

Justice Breyer: You realize everybody in this audience now knows about the 1099 form, right? (Laughter.)

Robert A. Parker: Well, they -- they may be kept out of trouble as a result. But I -- I think that the point -- there are a couple of points that I think are important to make. The first is the mens rea requirement of this statute, as in all obstruction statutes, is critical, and it is very exacting. So -­

Justice Gorsuch: The government made some similar arguments in the honest services case, that everything can be cured by a mens rea requirement. We don't need to worry about actus reus. We'll tell you about the actus reus when we get there. We'll create a common law of honest services. And here it seems to me that's what Official 1 the government's parallel -- parallel argument, that we're not going to tell you what qualifies. We'll find out later. And sometimes it's going to be simply paying cash. Sometimes it's not going to be keeping records. And -- and I just wonder are we going to wind up in the same place, that you drive this thing to such enormous breadth in its interpretation that you're -- you're inviting a vagueness challenge at the back end?

Robert A. Parker: I -- I disagree with that, Justice Gorsuch, and I'd like to just take a moment to explain why. So there are a number of limiting features of this statute that provide protection against precisely what you are explaining. And I think there are really three of them. The first is there has to be a natural tendency to obstruct. This is the objective factual nexus that Aguilar says is baked into the term "endeavor." There's at least that.

Justice Gorsuch: And paying cash is enough, though, under the government -­

Robert A. Parker: No, not necessarily. Official

Justice Gorsuch: Well, it is in this case.

Robert A. Parker: Actually, no. I don't think that that -­

Justice Gorsuch: That's -- that's in the jury instructions.

Robert A. Parker: The -- the -- paying cash was one of the means of the obstructive endeavor.

Justice Gorsuch: Right.

Robert A. Parker: It was a -- a factual way that the individual was engaging in obstructive conduct. But you then have to determine that on the overall facts of this case there was a natural tendency of that act to obstruct. You also have to show that the individual intended, specifically intended to obstruct the -- the administration of the code. And then third -­

Justice Alito: But before you go on, what do you do with the term "impede"?

Robert A. Parker: Well, I -- I think that the term "impede" is largely coextensive with the term "obstruct." In fact -­

Justice Alito: Well, I don't know Official 1 whether it is. The -- the dictionary definition of "impede" is: Interfere with or slow the progress of. So anything that makes the work of the IRS more difficult impedes the work of the IRS.

Robert A. Parker: I -- I -- well, I would disagree with the statement that anything that makes the work of the IRS more difficult. And I think this goes to what I was just about to say.

Justice Alito: Why? Why? Why do you disagree with that? On what basis?

Robert A. Parker: So -- so you have -- you have to have the natural tendency to obstruct. You then have to have proof.

Justice Alito: You have the mens rea. What do you have besides the mens rea?

Robert A. Parker: Well, you -- you then have to be acting corruptly, which means that you have to have the specific intent to obtain an unlawful advantage.

Justice Alito: That's the mens rea. What do you have besides the mens rea?

Robert A. Parker: Let's -- so let's say that you are engaged in lawful conduct, you're Official 1 paying people in cash, or you have structured your corporate form in a way that may make it more complicated for the IRS to figure out what your income and expenses are. Those things do not have a natural tendency to obstruct in and of themselves because there is nothing that says that the administration of the code has to be made maximally easy. The only reason that those would end up having a -- an obstructive effect is if you pair them with efforts to mislead or deceive the IRS into believing that the situation is not as it appears for an unlawful advantage. So in the -­

Justice Alito: Well, where does this come from in the language of the statute? I mean, this -- that's what troubles me about this. If I read "impede" to mean what it means in ordinary language, slow the progress of, you don't even have to impede. It's enough that you endeavor to impede. The only limiting thing I see here is "corruptly." And, you know, the old, you know, the old saying, it's lawful for taxpayers to Official 1 avoid taxes but not to evade taxes. So the line is -- the line can be very -- can be very thin.

Robert A. Parker: I'm not sure actually that it is all that thin. And I think that the -- what -- what is important to remember here is that there has to be an effort to actually convert that completely lawful conduct into something that has the natural tendency to obstruct or impede the IRS in an unlawful manner to obtain an unlawful benefit.

Justice Alito: Well, let me just give you a variation of the hypothetical that's already been given. So somebody -- somebody offers to clean my gutters, and he says $100 cash, $125 if you pay me by check. Is that a violation of this?

Robert A. Parker: No, not at all.

Justice Alito: Why -- why not?

Robert A. Parker: Well, because there -­ there is no -­

Justice Alito: What if I -- what if I -- you know, I understand why he's going to give me the discount by paying by cash, because Official 1 he doesn't want to report it.

Robert A. Parker: Well, again, I think that you would then have to pair that with other efforts to deceive the IRS, as you did here. I mean, Mr. Marinello -­

Justice Alito: Why? Why isn't that sufficient in itself?

Robert A. Parker: Because there's no natural tendency of the mere fact that you give him $100 in cash to obstruct anything. What becomes obstructive about that is if that is then not reported to the IRS or is falsely reported to the IRS and -­

Justice Sotomayor: I know he's not going to report, and he doesn't report.

Robert A. Parker: Well, I think that if -­ if you actually have the -- the subjective specific intent that you are giving him this money with the intent that he is not going to report it to the IRS, and you are engaged in a common endeavor to -- to obstruct the IRS's ability to duly administer the code, I think -­

Justice Kagan: But doesn't everybody know -- doesn't everybody know when they're given an offer like this, you know, I'd rather Official 1 have cash than a check, doesn't everybody know why people would rather have cash than a check?

Robert A. Parker: Well, that may be true, but, again, I -- this is I think precisely why these sorts of things, A, are -- are not charged under this statute but, B, I think would be incredibly difficult to charge under this statute.

Justice Breyer: Why? Why? I mean, that's -- you have used several times the words "specific intent." So is it the -- specific intent to me in the law means knowledge that the particular action is unlawful.

Robert A. Parker: Uh-huh.

Justice Breyer: So are you saying the government's position is we cannot under this statute prosecute any person for anything he does unless that person knows that what he is doing, such as giving money to a person in cash, will be used to provide a benefit to that person that is unlawful, he knows that doing this, what he is doing, is unlawful, and unless he knows that, the statute does not permit prosecution?

Robert A. Parker: I -- I think that that is Official 1 accurate. I mean, you -­

Justice Breyer: No, don't think it's accurate. I want to know if the government of the United States is saying this statute does not permit us to prosecute any person, unless that person knows that the action he is taking -- I'm repeating myself -- such as giving the money in cash, breaks the federal law, and he also knows that what he is doing in giving that money breaks the federal law?

Robert A. Parker: Well, he has -­

Justice Breyer: If he does not know both of those things, he cannot be prosecuted under this statute. Now, I'm interested in the position of the United States, on that question of interpretation, it is an interpretation of the word "corruptly."

Robert A. Parker: Yes. Both of the things that -­

Justice Breyer: Yes, the answer is the position of the United States is what I just said is correct. No one can be prosecuted unless both those things are true?

Robert A. Parker: Both of those things, I think, are -- are entirely subsumed by the Official 1 definition of corruptly. You have to have the specific intent -­

Justice Breyer: All right. I would like a yes or a no answer to the question.

Robert A. Parker: Yes. I mean, as I said --

Justice Breyer: The answer is yes. Okay. Thank you. That's helpful.

Robert A. Parker: Certainly. So -­

Justice Ginsburg: Well, may I ask you another question about this statute? The charge is that it would make any tax crime a misdemeanor, felony, you could tack this obstruction charge onto any tax crime in the code and then you just get an additional penalty. Is that so? Let's say -- well, let's take tax evasion, tax fraud. Wouldn't those also qualify as obstruction?

Robert A. Parker: Tax evasion may because there you are willfully attempting to obtain -­ to evade a tax deficiency, although the -- the -- if you can prove tax evasion, there's little reason to prove obstruction. However, all of the other ones, the Official 1 answer is no. If you look at the elements of Section 7212, they are different than the elements that you will find in any other criminal provision in the -- in the Internal Revenue Code. They require corruption. They require an intent to obstruct. Other provisions require willful actions or willful failures to act that may -­

Justice Kagan: Is that the only difference; it's just the mens rea difference?

Robert A. Parker: Well, I think that's -­ yes, I mean, you also must have a natural tendency to obstruct. And, for example, failing to report your income, withholding that information that you are lawfully required to provide I think has that natural tendency. But if you look at these other provisions, take, for example, failure to file a tax return, there are going to be individuals -- and, in fact, I would wager to say that there are probably a large number of individuals -- who do not file their tax returns for reasons that have nothing to do with a specific intent to obtain an unlawful Official 1 advantage. They may say -­

Justice Kagan: Like what? Like what?

Chief Justice Roberts: Well -­

Justice Gorsuch: Really?

Robert A. Parker: They may say sometimes I owe a small amount of tax. Sometimes I get a small refund. It's just not worth it to file.

Chief Justice Roberts: Why is -­

Robert A. Parker: In that circumstance, there's no intent to obtain that unlawful advantage because you don't know whether you're going to be advantaged or not. I think the same thing could be said of, you know, failure to keep records. You destroy all of your records because they're just sitting around and it makes you upset to have so many records in your house. There's nothing -- maybe that is a willful violation of a misdemeanor provision, but it wouldn't qualify under Section 7212 under any definition -­

Justice Gorsuch: It is a -- it is a remarkable -­

Chief Justice Roberts: But you -- you understand the concern on the other side, I Official 1 guess, which is, I think you used the word "cantankerous" in your brief, is that right, that some people are just cantankerous, and they're just not going to file.

Robert A. Parker: Yes.

Chief Justice Roberts: Perhaps that's a fairly small number of people compared to the situation where it is not terribly difficult for an assistant U.S. attorney to prove that something was done corruptly as opposed to willfully.

Robert A. Parker: Well, I -­

Chief Justice Roberts: It's kind of like the discussion we were having, that it is not hard to prove that paying in cash rather than a check when you get a discount was for a purpose to give a -- a lawful advantage.

Robert A. Parker: Well, I don't -­

Chief Justice Roberts: An unlawful advantage.

Robert A. Parker: I would -- I'm not sure that it's correct to say that these are rare cases. I would say that they are not, as a general matter, prosecuted, and so they don't result in published opinions; but I would say Official 1 that -- I would say that the -- the main concern here with kind of this over-criminalization of the tax code, I don't think actually plays out in practice. Our -- I can represent to the Court that our internal data indicates that obstruction charges are brought in approximately 4 percent of criminal tax cases.

Chief Justice Roberts: Is it -- is it still -- 4 percent. Is it still the published policy of the Department to charge to the maximum extent reasonably possible?

Robert A. Parker: I -- I believe that we, as a general matter, do seek out the most serious charge. However, especially in the -­

Justice Kagan: I thought that there was new guidance saying exactly that in the last year.

Robert A. Parker: Yes. I believe that that's correct. However, my -- my point would be -- I don't think that there's any requirement that this particular provision be charged in any given case -­

Justice Kennedy: Suppose we were -­

Robert A. Parker: -- because of all the Official 1 limitations.

Justice Kennedy: Suppose we were to conclude that 80 percent of criminal tax misdemeanor violations could be accompanied by the felony charges contained within this statute. Would that be cause for our Court to be concerned?

Robert A. Parker: Well, I'm not sure that it would necessarily be cause for concern. I think that would be surprising. However, I would note that, as this Court has explained in many cases, there is substantial overlap as a factual matter between the misdemeanor and felony provisions of the Internal Revenue Code. The Court has -­

Justice Kennedy: You do not -­

Robert A. Parker: -- repeatedly said -­

Justice Kennedy: You -- you do not think we should be concerned if 80 percent of tax misdemeanor violations can be increased to a felony under this statute? That's not a cause for concern?

Robert A. Parker: Well, again, I'm -- I'm not -­ Official

Justice Kennedy: Yes -- yes or no.

Robert A. Parker: I don't think it is, only because Congress has specifically provided an interlocking web of criminal penalties in this area. And it has done so precisely because we have a self-reporting system of taxation -­

Justice Breyer: The self -­

Robert A. Parker: -- that depends upon -­

Chief Justice Roberts: Just to be clear, it's not -- my line of questioning is not to suggest bad faith on the part of the -­ of the Department, but instead to suggest that that concern may have motivated Congress -­ should motivate a narrower understanding of what Congress intended in -- in this particular provision.

Robert A. Parker: Well, I -- I think that that's a fair point, Mr. Chief Justice, but I think that it does not motivate the adoption of the limiting construction that Petitioner is proposing. Remember, Petitioner's -­

Justice Gorsuch: On -- on that -- on that score, the verbs "obstruct" and "impede," along with "corruptly," the adverb, you Official 1 normally expect there to be an object to them. I have to -- have to -- because it is specific intent, as Justice Breyer pointed out, and you've conceded. I have to know about some thing and I have to intend to obstruct or impede that thing. And the government's interpretation of that thing, as I understand it, in its words is the continuous, ubiquitous, and universal collection of taxes. Is -- is that an object that's reasonably inferred? Can one -- can one intend -- know of and intend to impede or obstruct, corruptly or otherwise, something that's continuous, ubiquitous, and universal?

Robert A. Parker: Well, respectfully, Justice Gorsuch, I don't think that that is what we were saying. I -­

Justice Gorsuch: I think that's out of -­

Robert A. Parker: We're not saying -­

Justice Gorsuch: -- your brief in opposition, right?

Robert A. Parker: Those -- but those words refer to the understanding of individuals about Official 1 the fact that tax administration occurs on a routine and predictable schedule.

Justice Gorsuch: But -- but don't those -- don't those verbs imply that there's something more direct as the object of my actions than -- than something that's continuous, ubiquitous, and universal?

Robert A. Parker: Well, certainly I think that's true. I think that you have to be -­

Justice Gorsuch: Okay. That's helpful. Thank you.

Robert A. Parker: -- specifically intending to obstruct the administration of the code. And the only point that we're making is that administration, unlike in the case of the due administration of justice, which involves discrete proceedings that many Americans will go their entire lives without having a connection to, the due administration of the Internal Revenue Code occurs on a routine and predictable schedule that people know is coming and can reasonably foresee.

Justice Breyer: But you are -­

Robert A. Parker: I think there are -­

Justice Breyer: -- if you want, I Official 1 want this answer. I don't want to interrupt your answer, but I want you to augment it. And you started to do that when you started to talk about just what you were talking about. Look, if I put it differently, three principles: One, the Chief Justice, I think, enunciated, and I -- it sounds comical if I'm going to say it, but -- but it's very important; it is not an appropriate way of interpreting a statute. Look, perfect criminal statute, it is a crime to do wrong in the opinion of the attorney general. Don't worry, we'll interpret it properly. Even if you do interpret it properly, no. The answer under the Constitution, I think, is no. The second principle is right here in Aguilar, both of them, the second and third. "We have traditionally exercised restraint in assessing the reach of a federal criminal statute, both out of deference to the prerogative of Congress and out of concern that a fair warning should be given to the world in Official 1 language that the common world will understand of what the law will do, if a certain line is passed." From those principles, they conclude that a statute identically worded to this one but for the word justice instead of title requires a nexus be shown to a specific grand jury or jury proceeding, a -- a court proceeding, even though, of course, you can read the word justice to include the investigators and many other things. All right. They're saying, in effect, you take those same principles, that same limiting restriction, and do the same analogous thing here. Now, why not?

Robert A. Parker: I think there are a number of reasons not to do that. First of all, I think that the -- as I just explained, the due administration of justice has always been understood to be something that occurs in discrete proceedings, unlike the administration of the Internal Revenue Code; but I think that that is confirmed by the history of Section 1503. Official 1 The predecessor statute to Section 1503 specifically said that it only applied to the obstruction of officers or witnesses in any court of the United States or the due administration of justice therein. Now, when Congress recodified that provision in 1948, it modified the wording, but as this Court has repeatedly explained, that 1948 recodification was not intended to have any substantive effect on any of the provisions in the code.

Justice Gorsuch: But Congress legislates against the backdrop of what's out there. And what -- what was out there was our interpretation of those words requiring a nexus to an active proceeding, something more than -­ something more definite than something that's continuous, ubiquitous and universal.

Robert A. Parker: Well -­

Justice Gorsuch: And -- and the Congress that passed this statute had that interpretation in its back pocket at the time; right?

Robert A. Parker: Well, I -- but I would disagree with that because in none of this Official 1 Court's cases, in Pettibone, in Aguilar, Arthur Andersen, any of them did this Court ever suggest that it is the phrase "due administration," not the phrase "due administration of justice," that carries that connotation. And I would also note that if that is, in fact, what Congress intended, it is very strange because Congress had just a few years earlier enacted the statute that is now Section 1505, cited in our brief. And that statute was specifically enacted to do exactly what -- what you're suggesting, Justice Gorsuch. It was enacted to extend the provisions of Section 1503 to pending proceedings before agencies of the United States. And that is what it says. If the Petitioner's interpretation were correct, then I think that there's really no reason for Congress to have enacted that, and it would also be awfully strange for Congress not to have borrowed that language. But I would also note that there are a number of -- as I -- getting back to the point I was making previously, there is no reason to Official 1 adopt his particular limiting construction, which, frankly, I think has no basis in the text, and -­

Justice Kagan: Mr. -- Mr. Parker -­

Robert A. Parker: -- does not solve these problems.

Justice Kagan: Can -- can I go back to the question of -- of -- of the Department's prosecution policy? And, you know I -- could you tell me, number 1, what the current state of the Department's guidance is as to whether prosecutors are -- are told to prosecute to the maximum extent allowed by law; and, number 2, whether that would mean in this case that here I am a prosecutor and I think that some action falls within 7212, that I would be precluded from proceeding instead under 7203 or 7205 or 7207.

Robert A. Parker: My understanding is it is certainly the Department's position as a general matter that prosecutors should be charging the most serious offense that is readily provable on those facts. I -- I -- I couldn't say whether in Official 1 any given case that would mean that Section 7212 would have to be charged because, as I said before, the facts of each case are going to be different and they're going to make the ability to prove Section 7212 more or less possible. And there are going to be a number of cases where I think 7212 isn't even possible to -- even to allege. And so I -- I think that -- I'm not sure that it's -­

Justice Kagan: Yes, but I guess what I was saying is that if a prosecutor could proceed under 7212, that the prosecutor is being instructed that she must proceed under that section.

Robert A. Parker: If -- if -- if the facts of that case render a 7212 charge readily provable, then, yes, I think that prosecutors would do that, but I -- I also think that that is not borne out by -- a concern that that is going to lead to just these sorts of charges becoming common and ubiquitous doesn't necessarily translate because, as I said, our understanding is that it's only about 4 percent of cases. Official 1 And that includes the most recent data from this -- from this year. And so -­

Chief Justice Roberts: Counsel, you used the phrase "readily provable." I just want to as a question of fact, is that -- is that the term that's used or is that your summary of what you understand?

Robert A. Parker: I -- I don't exactly remember the term that is used, but certainly the government has to satisfy itself that it can prove beyond a reasonable doubt in that case that that crime has occurred. I -- I also, though, want to get back --

Justice Alito: Well, before you move off that point, why should we be comforted by the fact that prosecutorial discretion can be used in applying a statute, if this is a statute, with a really broad reach so that it reaches a lot of rather trivial conduct? Doesn't that make the situation worse rather than better? So then the prosecutors can decide where they want to use this.

Robert A. Parker: I -- I don't think that it does. I mean, I think that the government Official 1 has the -- the responsibility to enforce Congress's statutes. And if Congress has provided that this particular conduct is criminal, then I think that that is appropriate. I don't think that there is anything that is particularly standardless or vague or -- or otherwise uncertain about this particular statute.

Justice Ginsburg: May I ask you, this was, I think, brought up by the opposing side. It is about 7212(b). So the crime is rescuing seized property. Rescuing seized property carries a two-year penalty. Could the government tack on to that 7212(a), obstruction of the administration of the IRS -- IRC, so then -­ which is a three-year maximum?

Robert A. Parker: I -- I suppose that if the government could prove that the person did so with corrupt intent, and I think that that's the main difference, obviously, between those two provisions, in addition to the different statutory penalties, if we could prove that, then I think that would be available. I'm not sure why the government would Official 1 want to tack one on to the other. I mean, this would all end up being charged as obstruction anyway, and so I'm not sure why that would make sense, but I -- I think it's possible. There are -- there are -­

Justice Ginsburg: Well, it would -­ if -- if it is the highest penalty, it's three years under 7212(a) and only two years under 7212(b).

Robert A. Parker: Uh-huh.

Justice Ginsburg: So, with a maximum charging, why wouldn't the -­

Robert A. Parker: Well, because I think we would simply proceed under Section 7212(a), because that is the -- carries the higher potential penalty. I -- I would like to, in -- in the time I have remaining, just be sure to make two points. The first is the Petitioner's proposed limiting construction, as we've said, it doesn't come -- it doesn't have a basis in the text, but that doesn't mean that there aren't other potential limiting constructions that this Court could adopt, either in this case or Official 1 in another appropriate case. I think, Justice Sotomayor, you alluded to the possibility of excluding pure omissions from -- from the scope of the statute to try to differentiate between the misdemeanor provisions and this one. The Court actually engaged in a very similar analysis in Spies. That was the tax evasion case where it determined that omissions, pure omissions at least, would not qualify. And I think that that may be an appropriate limiting construction here. No one has suggested that. And I think the reason Petitioner hasn't is because it wouldn't really help him. The only two means of the endeavor in this case that were charged as failures to act, if you look at the evidence, it was clear that he was engaged in clear affirmative actions of destroying his records and other things. So that's one point I'd like to make. And the second is one of the main problems here is that obstruction will -­ obstruction at the front end will often prevent Official 1 the government from being able to charge appropriate offenses on the back end. And this case demonstrates that perfectly. The government would have brought a tax evasion charge in this case but for the fact that Mr. Marinello so destroyed his records that it was unable to prove beyond a reasonable doubt that there was an actual tax deficiency. And so what I think Petitioner's proposed construction would do is it would effectively allow individuals to evade their taxes and then obstruct their way down to a misdemeanor charge, or if they are particularly good at it, maybe obstruct their way out of criminal penalties at all. And the government could do nothing about it, unless the individual actually happened to be obstructing a pending audit or investigation. Audits and investigations are types of administration, but the Internal Revenue Code contains an entire subtitle called "Procedure and Administration" that lists in sequential chapters all of the different types of Official 1 administration that occur. That includes the gathering of information that taxpayers must self-report. It includes the calculation and assessment of taxes, the collection of taxes. It would be very strange, I think, for Congress to have specified that with such -­ with such clarity and then to have intended by referencing the due administration of this title to cut out all of that administrative functions and only focus on audits and investigations.

Justice Ginsburg: You gave the example of the omission that Justice Sotomayor brought up. What else could limit the potentially huge scope of this provision?

Robert A. Parker: Well, I think that -- I mean, I -- I don't mean to repeat myself, but I do think, Justice Ginsburg, that a rigorous enforcement of the mens rea requirement does that. And this Court has repeatedly said that in the obstruction context, rigorous enforcement of mens rea requirements is what separates individuals who do not have or have Official 1 not committed culpable conduct from those who do. And I don't think that this obstruction provision -- may I conclude? I don't think this obstruction provision should be treated any differently. Thank you.

Chief Justice Roberts: Thank you, counsel. Mr. Hellman, four minutes remaining. REBUTTAL ARGUMENT OF MATTHEW S. HELLMAN ON BEHALF OF PETITIONER

Matthew S. Hellman: Thank you, Mr. Chief Justice. Just a few quick points. I want to begin with the misdemeanors, the willful misdemeanors in the code. I think I heard my friend on the other side suggest that it could very well be that a highly substantial number of those misdemeanors would qualify as obstruction, which is in itself a problem. And, again, it requires this Court to think that the crimes that the Congress made the centerpiece of the code, these willful offenses, really are only meant for the Official 1 idiosyncratic case in which somebody intentionally violates the law but not for any particular benefit. In the context of willful tax violations, I think in the substantial majority of cases, if not all, you're going to have a prosecutor who can say this was done for a reason, some unlawful benefit, which need not even be financial. Second, as to the safeguards that the mens rea requirement offers, in a world in which not consulting fully with an accountant, paying in cash, not keeping all records, can become obstruction, if they're done for the wrong reason, then you really are leaving it up to the prosecutor, who is required under current charging rules to charge as aggressively as possible, to decide what was in the defendant's mind. Not every case goes to trial. Very few cases go to trial. With a felony conviction in the balance, you're going to find that this gives enormous leverage, even more so than they currently have, to prosecutors. Third, there's a suggestion here that Official 1 the government needs this broad interpretation; otherwise, wrongdoing will go unpunished. They can't point to a single case since 1954 where that was the case. It is certainly not the case here, where the government told the jury repeatedly that Mr. Marinello had substantial gross income and took substantial personal income from that. Exhibits 21 and 22 below and pages 516 to 518 make that point very clearly. Fourth, the omissions theory as an alternative way of limiting this. Again, that doesn't make sense of the statutes that are misdemeanors, like forcible rescue, like willful false statements, that are affirmative acts but less punishment than the -- than the 7212 obstruction charge. The last thing I want to say is we believe that based on the heritage of this language and the fact that obstruction statutes typically are focused on proceedings, that is the interpretation we've offered to the Court. But as Justice Gorsuch and Justice Sotomayor pointed out, there are other ways of reading the officers clause in conjunction with Official 1 the administration clause to come up with a more limited standard that does not cover any of the context -- conduct in this case, act or omission. So, for those reasons, we would ask the Court to reverse.

Justice Ginsburg: So, what is it? What do you derive from the officer clause?

Matthew S. Hellman: I -- I'm sorry?

Justice Ginsburg: What -- what is the limit that you are now proposing?

Matthew S. Hellman: The limit that I am understanding Justice Sotomayor and Justice Gorsuch to be suggesting is, if you are -- if your obstructive act or omission is in the context with some interaction with the IRS, not, say, failing to talk to an accountant on your own time, not paying someone in cash in your own home, but in some interaction with the IRS, that could be a limitation; that would limit it. I think -­

Justice Ginsburg: An -- an interaction, although no audit, no proceeding is yet under way? Official

Matthew S. Hellman: Yes, that -- yes, that is the rule. Now, I think that if in practice, if you applied that, it would start to look an awful lot like a proceeding requirement, maybe a little bit broader around the edges, maybe a little bit more flexibility, but it would be in -- in substance kin to it.

Justice Breyer: And you're suggest -­

Justice Gorsuch: And you think it's preferable given its heritage and for other reasons?

Matthew S. Hellman: Yes. Yes.

Justice Breyer: If -- if so, I think you're suggesting work with the word in the statute, "administration." That's the word?

Matthew S. Hellman: Yes.

Justice Breyer: All right. So, if I start working with that word, do you have on the top of your head two or three cases or something I might read?

Matthew S. Hellman: Well, I think if you look at -­

Justice Breyer: Aguilar, but what else?

Matthew S. Hellman: Sure. Sure. Aguilar, Official 1 and if you look at the jury instructions in cases that have interpreted other obstruction statutes that apply to proceedings, which is never a defined term in those statutes, I don't have a case name for you, you'll see that they start to look like things like an audit where you have an individualized assessment or enforcement of some obligation enforceable by a subpoena power. Thank you.

Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 11:59 a.m., the case in the above-entitled matter was submitted.)