What NFIB Legal Center is Doing to Rein in Overcriminalization

Date: October 06, 2017

While Supreme Court commentators are absolutely-right in saying that this new term is going to feature some truly important cases, we’ve honed-in on one underappreciated case here. Marinello v. United States is a hugely important case because it could potentially affect any small business owner. At issue is the question of whether a general obstruction statute makes it a crime for a person to engage in otherwise legal conduct that happens to make it more difficult for the Internal Revenue Service to perform audits.

In this case, the federal government wants to stretch the statutory language so broadly as to justify prosecution in any case where the authorities say there is a corrupt motive. But we argue in our amicus brief that this statute should be construed more reasonably—so as to criminalize only those acts intended to obstruct or interfere with an active investigation:

“The Second Circuit below adopted an interpretation of the Omnibus Clause that is so sweeping and overboard that it would criminalize a vast array of otherwise lawful conduct, chill economic activity, and provide the IRS with a weapon with which to target particular small businesses, not because of their conduct, but because of their identity. … Unless this Court limits its reach, the Omnibus Clause will resemble less a statute protecting the IRS from obstructive conduct, and more the sort of broad and vague enactment of which this Court has repeatedly disapproved.”

Our readers may recall that we weighed-in on a similar case a few years ago. In Yates v. United States federal prosecutors sought to stretch a criminal statute intended to prohibit the destruction of documents so broadly as to criminalize a fisherman’s decision to throw a fish overboard. The Supreme Court ultimately rejected the government’s overly broad interpretation in that case, and we’re hopeful that the Court will do the same here. But unfortunately, this is but the latest example of how our Goliath administrative state has criminalized conduct that no one would think illegal.

For more on this topic, check out Peter Henning’s New York Times article from July 4, 2017. And for more discussion on the problem of overcriminalization, check out Paul Larkin’s report: “The Extent of America’s Overcriminalization Problem.”

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