SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES - - - - - - - - - - - - - - - - - CARL J. MARINELLO, II, Petitioner, v. ) ) ) No. 16-1144 UNITED STATES, ) Respondent. ) - - - - - - - - - - - - - - - - - - Pages: 1 through 68 Place: Washington, D.C. Date: December 6, 2017 HERITAGE REPORTING CORPORATION Official Reporters 1220 L Street, N.W., Suite 206 Washington, D.C. 20005 (202) 628-4888 www.hrccourtreporters.com Official - Subject to Final Review 1 1 IN THE SUPREME COURT OF THE UNITED STATES 2 - - - - - - - - - - - - - - - - - - 3 CARL J. MARINELLO, II, 4 Petitioner, 5 v. 6 UNITED STATES, 7 8 ) ) ) No. 16-1144 ) Respondent. ) - - - - - - - - - - - - - - - - - - 9 10 Washington, D.C. 11 Wednesday, December 6, 2017 12 13 The above-entitled matter came on for 14 oral argument before the Supreme Court of the 15 United States at 10:58 a.m. 16 17 APPEARANCES: 18 MATTHEW S. HELLMAN, Washington, D.C.; on behalf 19 20 of the Petitioner ROBERT A. PARKER, Assistant to the Solicitor General, 21 Department of Justice, Washington, D.C.; on 22 behalf of the Respondent 23 24 25 Heritage Reporting Corporation Official - Subject to Final Review 2 1 C O N T E N T S 2 ORAL ARGUMENT OF: 3 MATTHEW S. HELLMAN 4 On behalf of the Petitioner 5 ORAL ARGUMENT OF: 6 ROBERT A. PARKER 7 On behalf of the Respondent 8 REBUTTAL ARGUMENT OF: 9 MATTHEW S. HELLMAN 10 On behalf of the Petitioner 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation PAGE: 3 30 63 Official - Subject to Final Review 3 1 P R O C E E D I N G S 2 3 (10:58 a.m.) CHIEF JUSTICE ROBERTS: We'll hear 4 argument next in Case 16-1144, Marinello versus 5 United States. 6 Mr. Hellman. 7 ORAL ARGUMENT OF MATTHEW S. HELLMAN 8 ON BEHALF OF THE PETITIONER 9 10 MR. HELLMAN: Thank you, Mr. Chief Justice, and may it please the Court: 11 When Congress made it a felony to 12 obstruct the due administration of the tax 13 code, it was not creating an all-purpose tax 14 crime; it was borrowing from a statute that 15 prohibited the obstruction of a pending 16 proceeding. 17 This Court normally presumes that 18 borrowed language carries its meaning with it. 19 And that has to be the case here, for without 20 that limitation, obstruction would swallow up 21 the other crimes that Congress simultaneously 22 enacted and, in particular, it would obliterate 23 the careful line that Congress drew between 24 misdemeanors and felonies. 25 Indeed, the government's Heritage Reporting Corporation Official - Subject to Final Review 4 1 interpretation is so broad that it would chill 2 entirely legitimate conduct that Congress never 3 intended to penalize. 4 JUSTICE GINSBURG: What -- what -­ 5 what lawful conduct would the government's 6 reading put at risk? 7 MR. HELLMAN: Certainly. There's a 8 whole range because obstruction, on their 9 definition, is so broad. For example, you 10 could imagine a situation -- I'll take an 11 everyday taxpayer, someone who pays their 12 gardener, say, in cash, which is one of the 13 predicate acts in this case as well. 14 cash isn't necessarily illegal under the tax 15 laws, but the test that the government would 16 have is, by paying someone in cash, you're -­ 17 you're making it harder for the IRS to assess 18 perhaps your tax liability or perhaps the tax 19 liability of the person that you are paying. 20 And at that quest -- at that point, the only 21 question that remains is mens rea, why did you 22 do it? 23 obtaining an unlawful benefit? 24 that benefit need not even be your own under 25 the government's reading; it could be the Paying in Did you do it for the purpose of And even -­ Heritage Reporting Corporation Official - Subject to Final Review 5 1 2 benefit of the gardener. Or to take another example, imagine a 3 taxpayer who says I'm going to keep every 4 document the law requires under the code. 5 keep every document but no documents more. 6 the IRS ever came back and looked at that 7 person's tax position, they might say your 8 failure to keep these documents that -- that 9 aren't otherwise required hindered us in our 10 11 I'll If ability to assess your taxes. At that point, again, the only 12 question becomes the why, the mens rea. 13 with a felony prosecution on the line and with 14 so many acts, the actus reuses being so broad, 15 anything that hinders the IRS's ability to 16 carry out a code obstruct -­ 17 18 JUSTICE SOTOMAYOR: And My problem is that I have -- a second question. 19 MR. HELLMAN: Sure. 20 JUSTICE SOTOMAYOR: I have a lot of 21 hypotheticals under your definition of what 22 this section means that wouldn't be covered. 23 So how about if an individual knows that the 24 IRS is in the presence of -- in the process of 25 assessing his taxes and he in some way Heritage Reporting Corporation Official - Subject to Final Review 6 1 obstructs that process, or an agent -- the 2 agent in 2004 called the defendant and said: 3 You know, I'm deciding whether to open an 4 investigation. 5 thinking about it. 6 business, and I don't see any tax returns. 7 I haven't, but I'm just I understand you have this And your client answered the way he 8 first did: I make less than $1,000. 9 have to file. I don't And the agent closes the 10 investigation -- closes the file and says: 11 not going to investigate this. 12 13 14 I'm Under your theory, that direct obstruction would not be actionable? MR. HELLMAN: It would be several 15 other crimes. 16 like tax evasion, if there's a deficiency and 17 an evasive act in connection with it. 18 be a false statement to the IRS. 19 knows how to write a pending proceeding 20 requirement. 21 As you describe it, it sounds It could But Congress If you think back to the statute at 22 issue in Arthur Andersen, Section 1512, another 23 obstruction statute that applies in cases of 24 corruption to proceedings, that 1512(f), which 25 Congress enacted as part of Sarbanes-Oxley, Heritage Reporting Corporation Official - Subject to Final Review 7 1 says the proceeding need not be pending or even 2 about to be instituted. 3 Now, this Court -­ 4 JUSTICE SOTOMAYOR: 5 minute, yes, it can do that sometimes. 6 MR. HELLMAN: 7 JUSTICE SOTOMAYOR: 8 11 12 13 It can do that. It doesn't other times. 9 10 Well, wait a MR. HELLMAN: It doesn't other times. And -­ JUSTICE SOTOMAYOR: So is this one of those other times? MR. HELLMAN: Well, I think the -- the 14 right way to understand it is Congress is -­ 15 the "need not be pending" language was a 16 product of a 1980s revision to the statute and 17 really started to apply to documents in 18 Sarbanes-Oxley. 19 JUSTICE SOTOMAYOR: Do you think the 20 word "administration," "due administration of 21 this title," does any work in the 22 interpretation? 23 say that the example I gave is an actual 24 affirmative act by the agency. 25 agent is calling and doing his work under the It seems to me that one could It is -- the Heritage Reporting Corporation Official - Subject to Final Review 8 1 Act but that what you do outside of interacting 2 directly with the agency is more omission, 3 which is not the administration of the Act. 4 Could that line be drawn? 5 MR. HELLMAN: I don't -- that's 6 certainly not the line the government is 7 offering, but -- but -­ 8 9 JUSTICE SOTOMAYOR: It's not the line the government's offering -­ 10 MR. HELLMAN: Is offering. 11 JUSTICE SOTOMAYOR: -- but yours is -­ 12 your broadness is sweeping up a lot of conduct 13 that I think could be perceived as active 14 obstruction of the work of -- the direct work 15 of the agency. 16 mislead them. 17 An agent calls you and you MR. HELLMAN: Well, a couple 18 responses. As I said, those are covered by 19 other crimes in the statute, false statements. 20 Could even be covered by the officers clause of 21 this statute. 22 this is, in some sense, and I think the point 23 of your question is, not paying your taxes, 24 failing to file a return, failure to make a 25 payment, we would concede is in some sense But I think that the key for Heritage Reporting Corporation Official - Subject to Final Review 9 1 obstruction of the administration of the code, 2 but that can't be what Congress had in mind for 3 this statute because we know what they thought 4 the penalty for those crimes should be. 5 should be a misdemeanor. Those people should 6 not be branded as felons. It's wrong, it's a 7 crime, but it's a misdemeanor punishable by one 8 year. 9 They And, you know, essentially, on one 10 page of the code, they're calling this conduct 11 a misdemeanor. 12 view, actually, it turns out that -- it turns 13 out to be felony obstruction. 14 provisions that were the product of an intense, 15 multi-year process of reforming the tax code, 16 where Congress specifically debated back and 17 forth between the House and the Senate about 18 whether some of these crimes should be 19 classified as misdemeanors or felonies. 20 And then, on the government's And these are And so I think when you're trying to 21 read a statute as a whole -- and here the need 22 to do that is at its apex because we're not 23 talking about different provisions that were 24 enacted over a series of decades. 25 Congress's concerted attempt to codify and This was Heritage Reporting Corporation Official - Subject to Final Review 10 1 2 calibrate the penalties that it wanted. And then to find out that actually 3 everything turns out to be a felony because in 4 every -- any act that violates a tax law could 5 in some sense be meant -- understood to be 6 obstructing the administration of the code, 7 that's not a plausible way to read a statute. 8 JUSTICE ALITO: 9 CHIEF JUSTICE ROBERTS: 10 Mr. Hellman, I -­ And you suggest -­ 11 JUSTICE ALITO: I'm sorry. 12 CHIEF JUSTICE ROBERTS: You -- you 13 raised that specter in your brief. In your 14 experience, is that happening on the ground? 15 mean, is it the case that you find indictments 16 always -- excuse me -- always tacking on 17 charges under this provision? 18 MR. HELLMAN: Yes, Your Honor. And I 19 -- and I think the tax amici and other amici 20 who have filed in this case speak to that. 21 I I took a look -- and this is just my 22 own personal review of the cases -- in the 23 beginning in the -- really in the '90s and then 24 in the 2000s, you start to see 7212 obstruction 25 charges brought in -- there's hundreds of Heritage Reporting Corporation Official - Subject to Final Review 11 1 cases. You can go online and just look for 2 where those charges have been brought, even in 3 reported cases. 4 And as we discuss in the brief, the 5 predicates are -- are now becoming ones in 6 which failure to file a return is becoming a 7 predicate, failure to pay taxes is becoming a 8 predicate. 9 10 JUSTICE BREYER: example. 11 MR. HELLMAN: 12 JUSTICE BREYER: 13 this. Yes. I just often wondered I think -- remember the gardener? 14 MR. HELLMAN: 15 JUSTICE BREYER: 16 But go to your first Yes. Suppose you hire somebody to shovel your snow off your steps -­ 17 MR. HELLMAN: Sure. 18 JUSTICE BREYER: -- every three weeks 19 or so or every week or -- and the gardener does 20 some gardening, burns some leaves, and you pay 21 him more than $600 over the year. 22 MR. HELLMAN: 23 JUSTICE BREYER: 24 required to file a 1099 for them. 25 MR. HELLMAN: Right. Then I guess you're That's right, which is Heritage Reporting Corporation Official - Subject to Final Review 12 1 they -­ 2 JUSTICE BREYER: I know -- I don't 3 know people who do. 4 the country is a law breaker. 5 mean, if -- if their interpretation is correct, 6 in your view, that would give them the power in 7 their discretion to indict, I won't say half 8 the country, but -- but a -- but a very 9 significant number of people, is that right? 10 11 I mean, maybe everybody in MR. HELLMAN: But I -- but I Yes, that -- that is correct. 12 JUSTICE BREYER: If they know of this 13 requirement and if they want to help the 14 gardener or whatever. 15 16 MR. HELLMAN: And I think another -­ 17 18 That's correct. JUSTICE BREYER: And that is right, you're sure that it's right? 19 MR. HELLMAN: Yes, that is correct, 20 because it comes down to -- to the mens rea of 21 the -- of the person who's filling out that 22 form. 23 24 25 JUSTICE BREYER: Well, they want to help the gardener and they know about it. MR. HELLMAN: That's right. And I Heritage Reporting Corporation Official - Subject to Final Review 13 1 2 think another -­ JUSTICE ALITO: Well, Mr. Hellman, I 3 mean, I share your -- your concern that if this 4 statute is read in its broadest possible 5 literal sense, it has a really staggering 6 sweep, but I wonder if your interpretation 7 really solves the problem because can't the 8 same sorts of things happen after a proceeding 9 has commenced? 10 Let's say somebody is being audited 11 and eventually the person comes up with the 12 records that the auditor needs, but they're all 13 scrambled up, and it looks like -- and -- and 14 the person is -- is late in providing them and 15 misses meetings and just is very difficult. 16 You could get the same situation 17 there, couldn't you? 18 MR. HELLMAN: I suppose you could, but 19 there's a difference as to why I think the 20 statute ought to tolerate prosecution in that 21 scenario, which is where there's been a formal 22 notice of audit and someone has been given 23 questions by the government and needs to 24 respond in a reasonable manner to them. 25 You can understand why Congress wanted Heritage Reporting Corporation Official - Subject to Final Review 14 1 to make that a crime distinct from, maybe on 2 top of, other crimes that a person has 3 committed. 4 maintenance of records prior to the initiation 5 of that proceeding, then there are many other 6 crimes that do cover recordkeeping and, of 7 course, your obligation to pay taxes. 8 9 But if we're talking about the But those are generally, with the exception of tax evasion, generally not 10 felonies and they generally have a lower 11 sentence than the one here. 12 So I do take your point that there 13 could be the potential for abuse, even under 14 our interpretation, but I do think that it's 15 significantly narrowed just for the reasons 16 that I said. 17 JUSTICE GORSUCH: 18 JUSTICE KAGAN: Mr. -­ Mr. Hellman, there are 19 obvious reasons to search for a limiting 20 interpretation here. 21 MR. HELLMAN: 22 JUSTICE KAGAN: Yes. I guess the question 23 is why your limiting interpretation? And 24 obviously you talked about this in your brief. 25 But I just want to give you an opportunity now Heritage Reporting Corporation Official - Subject to Final Review 15 1 to try to convince me, because right now I feel 2 as though it comes out of thin air. 3 have any grounding in the text of the statute. 4 5 6 It doesn't And I guess I'm not seeing quite how the precedent gets you there. MR. HELLMAN: So -­ Absolutely. I think the 7 -- the key reasons why we would think that 8 Congress had 1503 in mind when it was talking 9 -- when it was enacting 7212 are the following: 10 You've got a statute, 1503, enacted just a few 11 years before, six years before. 12 just talk about obstruction of the due 13 administration of something. 14 It doesn't It's got that two-part structure with 15 officers in the first half, administration in 16 the second. 17 impede or intimidate the officer, or impede or 18 obstruct the proceeding. 19 It's got those same verbs, to And you also have the same means by 20 which you're doing it. 21 together and, on top of that, the fact that 22 there's nothing unusual about obstruction 23 proceed -- obstruction statutes having 24 proceedings as their focus. 25 So you put that all There are several obstruction statutes Heritage Reporting Corporation Official - Subject to Final Review 16 1 after 1503 in the code that all talk about 2 obstruction of proceedings. 3 So -- so when you talk about 4 obstruction of the due administration, it's 5 sort of a natural marriage of that concept to 6 proceedings. 7 Now, there's no legislative history 8 that speaks to this one way or the other. 9 certainly concede that. 10 JUSTICE GINSBURG: 11 the predecessor of 1503? 12 toward courts. 13 MR. HELLMAN: We But wasn't there It was oriented It -- it was expressly 14 said, obstruction in a court, in effect, that's 15 correct. 16 statute six years before 7212, they said that 17 they were not making any substantive changes. 18 But when Congress recodified that So that was the language on the shelf, 19 if you wanted to have a two-part obstruction 20 statute: 21 administration. 22 one for the officers, one for the due It's really the model. And I don't 23 think that word choice can be explained by -­ 24 by coincidence. 25 the problem of, again, what would -- the And then, of course, you have Heritage Reporting Corporation Official - Subject to Final Review 17 1 government's alternative interpretation puts a 2 code that would stretch across this, you know, 3 this entire table, any violation of it, which 4 is potentially a felony. 5 If I would, I wanted to go back to one 6 other way in which -- and this is not just an 7 omissions point, this is an affirmative acts 8 point -- 7205 in the tax code. 9 If anybody's ever been an employee in 10 this country, when you start your job, you fill 11 out the W-4 form where you say how many 12 dependents you have, which controls how much 13 withholding your employer will take out of your 14 -- your paycheck. 15 I, too, know many people who don't put 16 down the true number of dependents that they 17 have in order to affect the withholding that 18 they get. In some sense, that is an unlawful 19 benefit. Money's being -- not being withheld 20 that should be. 21 wanted to punish that as a misdemeanor, not a 22 felony. But we know that Congress 23 Now -­ 24 CHIEF JUSTICE ROBERTS: 25 lot of people do that? Do you think a I mean, you've got Heritage Reporting Corporation Official - Subject to Final Review 18 1 three children and they say they've got five? 2 3 MR. HELLMAN: well, in any case -­ 4 CHIEF JUSTICE ROBERTS: 5 experience because -­ 6 (Laughter.) 7 MR. HELLMAN: 8 In my experience -­ Well, your I -- I was responding to Justice -­ 9 CHIEF JUSTICE ROBERTS: I mean, people 10 who get caught come to you. 11 experience, you see a lot of them. 12 13 MR. HELLMAN: So, in your Right. category problem there. There may be a I -- I agree. 14 JUSTICE GINSBURG: 15 who list their dogs as dependents. 16 17 MR. HELLMAN: There are people Well, I'll defer to Justice Ginsburg on that. 18 (Laughter.) 19 JUSTICE BREYER: I wasn't thinking of 20 those people. I just think that there are 21 many, many, many, many regulations in the code 22 that seem to be quite trivial to an ordinary 23 person. 24 much attention to every form and, moreover, 25 maybe they even want to help the gardener. And they might, in fact, not pay that Heritage Reporting Corporation All Official - Subject to Final Review 19 1 right? 2 Now, I think there are many such 3 people in the 1099 case, but I don't know. 4 That's why I asked you whether it was an 5 appropriate example. 6 MR. HELLMAN: 7 8 9 10 And I do believe that it is one. JUSTICE GORSUCH: Well, Mr. Hellman, what role should lenity play here, if any? MR. HELLMAN: Well, I think this 11 Court's decisions in Aguilar and Arthur 12 Andersen sort of point the way in that 13 direction. 14 We haven't made a constitutional 15 argument in this case that it would be 16 unlawful, unconstitutional for Congress to 17 write a statute, the statute that the 18 government says they wrote there. 19 20 21 JUSTICE GORSUCH: But -­ Saving that for the next case. MR. HELLMAN: We'll save that for the 22 next case. But what we have most definitely 23 argued in this case is that, as the Court 24 explained in Aguilar, before this Court will 25 assume that Congress meant to felonize every Heritage Reporting Corporation Official - Subject to Final Review 20 1 immoral act under the sun, we're going to want 2 them to say that a little bit more clearly than 3 they -- than they did in the statute. 4 JUSTICE BREYER: But how did they in 5 Aguilar? I mean, I took -- I read the language 6 in Aguilar and I thought it was very helpful to 7 your case. 8 virtually, except administration of justice 9 instead of administration of this title. The statute is identical, 10 MR. HELLMAN: Correct. 11 JUSTICE BREYER: And then it's quite 12 limited how they interpreted it. 13 totally clear as to what significance -- they 14 said something about a nexus -­ 15 MR. HELLMAN: 16 JUSTICE BREYER: 17 what? Yes. MR. HELLMAN: 19 JUSTICE BREYER: 21 -- but a nexus to I mean -­ 18 20 But I'm not Sure. -- and what's your understanding of that? MR. HELLMAN: So, as I read Aguilar, 22 it's a nexus to a pending proceeding. So, in 23 that case, the defendant lied, that was 24 conceded to an FBI agent, but it wasn't clear 25 that those statements were ever going to get Heritage Reporting Corporation Official - Subject to Final Review 21 1 into court into a grand jury proceeding. 2 might or might not in the words of the Court. 3 And what the court -­ 4 JUSTICE BREYER: They So your argument is 5 nexus to a pending proceeding, interpreted with 6 the same language except it says administration 7 of justice should lead us to say nexus to a 8 pending proceeding in a statute that's 9 identical, but the words are administration of 10 this title. 11 MR. HELLMAN: Yes. 12 JUSTICE BREYER: 13 MR. HELLMAN: 14 JUSTICE BREYER: 15 MR. HELLMAN: Is that the argument? That is. All right. And, again, in response 16 to Justice Gorsuch's question, the Court has 17 proceeded carefully with lenity in mind when it 18 -- when it's looked at a statute that the 19 government has said covers everything that one 20 might want to punish, but doesn't clearly say 21 that that is what we intend to punish, and both 22 considerations of fair notice and, as the Court 23 put it, deference to the prerogatives of 24 Congress suggests that a more narrow 25 interpretation is called for. Heritage Reporting Corporation Official - Subject to Final Review 22 1 JUSTICE KAGAN: 2 lenity means? 3 statute. Well, is that what This -- for sure this is a broad 4 MR. HELLMAN: 5 JUSTICE KAGAN: Yes. It doesn't seem very 6 ambiguous. 7 looking for a grievous ambiguity, sort of like 8 the last case where it's like, I don't know, 9 you could read it this way, you could read it 10 that way. You know, lenity, usually we're 11 What do we do? But that's not this statute. This 12 statute, taken on its face, is just ungodly 13 broad. 14 MR. HELLMAN: I understand the Court's 15 lenity doctrine to say that once you apply the 16 normal tools of statutory interpretation, if 17 you're really left with good arguments on both 18 sides, there's real ambiguity, important 19 ambiguity. 20 21 22 In a criminal case, you go with the less harsh interpretation. JUSTICE GORSUCH: And I do -­ So -- so for 23 example, if we are left with some ambiguity as 24 to your Aguilar analogy, that's when you would 25 suggest perhaps lenity might be a tiebreaker? Heritage Reporting Corporation Official - Subject to Final Review 23 1 MR. HELLMAN: Yes -- yes, I do. And 2 -- and with respect to Justice Kagan's 3 question, I think that these words read in 4 isolation do suggest breadth. 5 in isolation isn't the -- the only step 6 obviously of statutory interpretation. 7 But reading them We have to look at it in context. And 8 this is an incredibly strong case where context 9 ought to matter, where you have Congress 10 intentionally trying to bring together in one 11 place, I believe is the phrase they used, all 12 of the disparate tax crimes and recalibrate 13 them as they saw fit. 14 So, again, the statute, read in 15 isolation, I certainly take the point that it 16 looks broad and strong and "ungodly broad" to 17 use your phrase, but that isn't the end of the 18 statutory analysis. 19 steps -- you look to where the language comes 20 from, you look to what it might mean in context 21 with other provisions right next door to it -­ 22 at that point, we suggest -- we think we have 23 the better of the argument, but at a minimum, 24 at a bare minimum, there are competing 25 interpretations that -- where the rule of And once you do all of the Heritage Reporting Corporation Official - Subject to Final Review 24 1 2 lenity might apply. JUSTICE SOTOMAYOR: There -- there is 3 something to be done about the context that 4 this was drafted in. 5 half of this statute -­ As I look at the first 6 MR. HELLMAN: Yes. 7 JUSTICE SOTOMAYOR: -- "whoever 8 corruptly or by force or threat of force, 9 including any threatening letter or 10 communication, endeavors to intimidate or 11 impede any officer or employee of the U.S. 12 acting in an official capacity." 13 MR. HELLMAN: Yes. 14 JUSTICE SOTOMAYOR: "Or in any way 15 corruptly or by force or threat of force, 16 including any threatening letter or 17 communication, obstructs or impedes or 18 endeavors to obstruct or impede the due 19 administration of this title," all of that 20 seems to be geared towards some affirmative act 21 aimed at an agent or the agency. 22 That's where I got my earlier -­ 23 MR. HELLMAN: 24 JUSTICE SOTOMAYOR: 25 Yes. -- differentiation between -­ Heritage Reporting Corporation Official - Subject to Final Review 25 1 MR. HELLMAN: Yes. 2 JUSTICE SOTOMAYOR: -- a affirmative 3 act and an omission act because that doesn't 4 have the flavor of force or threat of force or 5 threatening, all of the sort of active, violent 6 or active, obstructive -­ 7 MR. HELLMAN: 8 JUSTICE SOTOMAYOR: 9 10 Right. the examples set forth. MR. HELLMAN: I think I understand 11 your question better now. 12 of responses. 13 -- behavior that And I have a couple I don't think the omission limitation 14 will get -- will make sense of the tax criminal 15 code for a couple of reasons. 16 several misdemeanor offenses under the code 17 that are not omission offenses; they are 18 affirmative act offenses. 19 a lot of thought: 20 connection with your taxes -- that's an 21 affirmative act -- is a misdemeanor unless 22 you -- unless you make that statement under the 23 penalty of perjury. 24 between Section 7207 and Section 7206, 25 subsection (1). One, there are And Congress showed Making a false statement in That is the difference Heritage Reporting Corporation Official - Subject to Final Review 26 1 That distinction between bad kinds of 2 false statements, affirmative acts, is 3 obviated, obliterated, by an interpretation of 4 obstruction that says, when you make a false 5 statement to the government, it has the effect 6 of hindering, even if you didn't make it under 7 the penalty of perjury. 8 not in that connection. 9 You might have made it So I don't think that an 10 omissions-based approach makes -- you know, 11 gets -­ 12 JUSTICE GORSUCH: Well, does it get us 13 part of the way there, though? Because the 14 officer clause, as Justice Sotomayor suggests, 15 you have to actually hinder something the 16 officer is doing. 17 or thought be thought to apply in the 18 administration as well, that the IRS has to be 19 doing something? 20 -- is a doing, it is a thing; it is not just 21 merely -- I think the IRS speaks of the 22 pervasive, continuous, brooding on the presence 23 of -­ And could that same spirit Your preceding thought is a 24 MR. HELLMAN: Yes. 25 JUSTICE GORSUCH: Right. -- of tax Heritage Reporting Corporation Official - Subject to Final Review 27 1 liabilities, that there's an implication from 2 the officers clause that there's something more 3 going on. 4 helpful. 5 Am I -- maybe that's not entirely MR. HELLMAN: Well, what I would say 6 is if the thought is by limiting obstruction to 7 any affirmative act that hinders the IRS in any 8 way, you have not brought the statute -­ 9 JUSTICE GORSUCH: No, no, no. No, no, 10 limiting it to some affirmative act going on by 11 the agency, I think, is what Justice Sotomayor 12 was suggesting, that the agency has to be doing 13 something other than merely passively receiving 14 taxes. 15 MR. HELLMAN: Well, and, of course, 16 all of the conduct or omissions in this case 17 are not in that context. 18 JUSTICE GORSUCH: 19 MR. HELLMAN: 20 JUSTICE GORSUCH: 21 Correct. So -­ It's -- it's a friendly amendment. 22 (Laughter.) 23 MR. HELLMAN: Then that's not the rule 24 we have adopted or endorsed to the Court, but 25 -- and, again, you would have some other -­ Heritage Reporting Corporation Official - Subject to Final Review 28 1 JUSTICE SOTOMAYOR: 2 getting to what you have -­ 3 MR. HELLMAN: 4 JUSTICE SOTOMAYOR: I have difficulty Right. -- because you 5 haven't, as Justice Kagan pointed out, given us 6 anything in the language to anchor this in. 7 least -­ 8 MR. HELLMAN: 9 JUSTICE SOTOMAYOR: Right. -- Justice -- it 10 appears Justice Gorsuch and I are trying to 11 look at the language. 12 MR. HELLMAN: At So what I would say in 13 response to that is we would accept -- because 14 there is no act in question here that falls 15 within that rule. 16 think that -- you know, would we accede to 17 that, yes, we would. So if you're asking me do I 18 But I would point out that -­ 19 JUSTICE SOTOMAYOR: 20 21 A win is a win is a win. MR. HELLMAN: A win is a win, for 22 certain, but I just want to be -- be certain 23 that the Court fully appreciates that the line 24 between when the IRS is doing something and not 25 doing something at times can be a little bit Heritage Reporting Corporation Official - Subject to Final Review 29 1 blurry. 2 about your proposal, but in any case, the -­ 3 the key part is unless there's a proceeding -­ 4 5 And so, you know, I'd want to think JUSTICE SOTOMAYOR: You just helped the government a lot with that statement. 6 MR. HELLMAN: I hope I did not. 7 (Laughter.) 8 JUSTICE SOTOMAYOR: 9 submission to this Court is that the The -- our 10 government's interpretation in this case cannot 11 be correct. 12 comes directly from a predecessor statute 13 dealing with proceedings, but I understand the 14 Court's point that you might define proceedings 15 a little more broadly than we do -­ 16 JUSTICE GORSUCH: 17 We have offered language that I'm not even arguing with you. 18 MR. HELLMAN: Yeah. 19 JUSTICE GORSUCH: I'm just suggesting 20 that the officers clause might be a source of 21 some aid to you. 22 MR. HELLMAN: 23 JUSTICE GORSUCH: 24 25 Agreed. That's all I'm saying. MR. HELLMAN: Absolutely agreed. Heritage Reporting Corporation Official - Subject to Final Review 30 1 Absolutely agreed. 2 Now, the other part I wanted to make 3 sure I -- I said before I sat down was the 4 government's interpretation in this case, 5 although they push it now, is not one that they 6 had invoked for nearly 30 years after the 7 statute was enacted. 8 Although they claim it's -- there is 9 no ambiguity, there is no need for lenity, this 10 is a -- an interpretation that really came into 11 fruition in the '90s, and with increasing 12 frequency in -- in many, many cases, this is 13 now being charged. 14 And if the Court has no further 15 questions, I will reserve the rest of my time 16 for rebuttal. 17 18 19 Thank you. CHIEF JUSTICE ROBERTS: Thank you, counsel. Mr. Parker. 20 ORAL ARGUMENT OF ROBERT A. PARKER 21 ON BEHALF OF THE RESPONDENT 22 23 MR. PARKER: Mr. Chief Justice, and may it please the Court: 24 I'd like at the very outset to address 25 several of the things that my friend just said. Heritage Reporting Corporation Official - Subject to Final Review 31 1 He -- he suggested that entirely lawful conduct 2 would come within this statute. 3 that is incorrect. 4 statute swallows all of the other misdemeanor 5 provisions of the code. 6 incorrect. 7 8 We think that He suggested that this We think that that is And I -- I want to just take a moment to explain why we think -­ 9 JUSTICE SOTOMAYOR: So how about the 10 one example he does give? 11 shelters thinking they might be legal, might 12 not. 13 a corrupt intent? 14 15 People go into I'm going to role my dice. MR. PARKER: Would that be I -- I don't believe so -­ 16 JUSTICE SOTOMAYOR: 17 MR. PARKER: Why? -- because there is not 18 the specific intent to obtain an unlawful 19 advantage. 20 to advantage yourself but know that there -­ 21 that the advantage is unlawful. 22 23 24 25 You have to not only be intending And so that -- that, I think, goes directly to the -­ JUSTICE GORSUCH: Well, Justice -­ Justice Breyer's snow shoveler, all right, I Heritage Reporting Corporation Official - Subject to Final Review 32 1 think he's a felon under your interpretation 2 because the -- the person who's paying him 3 knows that, above $600 or whatever it is, I 4 have to file a 1099. 5 doing it for an unlawful advantage for the snow 6 shoveler. 7 felon. I know it. I'm not doing it -- I'm I'm a -- I'm a federal 8 MR. PARKER: 9 JUSTICE GORSUCH: 10 So -­ friend's son's snow shoveling business. 11 MR. PARKER: 12 JUSTICE GORSUCH: 13 MR. PARKER: 14 JUSTICE GORSUCH: 15 16 17 18 MR. PARKER: I think that that -­ I mean, the answer That circumstance may JUSTICE GORSUCH: 20 within the scope. I'm waiting for a You can just -- it may come So that's a yes? MR. PARKER: Yes. Yes, but I think that the -­ 23 JUSTICE GORSUCH: 24 MR. PARKER: 25 Right? come within the scope of the statute. yes or a no. 22 Well, I -­ is yes, I think, isn't it? 19 21 For my -- for my explanation as to why. Okay. All right. I think it bears I mean, first, I think Heritage Reporting Corporation Official - Subject to Final Review 33 1 that the threshold is actually $2,000. 2 3 JUSTICE BREYER: Well, the reg I saw said 600. 4 MR. PARKER: But, well, but that's if 5 you're a business employing an independent 6 contractor, so an -- an individual. 7 I don't want to -- I don't think that that 8 matters. 9 -- 10 But -- but The -- the point, though, is if you JUSTICE GORSUCH: How -- how is 11 somebody supposed to know when they're going to 12 be in trouble here? 13 paying cash can sometimes be a problem. 14 was part of the indictment and -- and the jury 15 instructions here. 16 to keep records that you didn't -- that aren't 17 lawfully obliged to be kept. 18 Because it seems like That Or keeping records, failure JUSTICE BREYER: You realize everybody 19 in this audience now knows about the 1099 form, 20 right? 21 (Laughter.) 22 MR. PARKER: Well, they -- they may be 23 kept out of trouble as a result. But I -- I 24 think that the point -- there are a couple of 25 points that I think are important to make. Heritage Reporting Corporation Official - Subject to Final Review 34 1 The first is the mens rea requirement 2 of this statute, as in all obstruction 3 statutes, is critical, and it is very exacting. 4 So -­ 5 JUSTICE GORSUCH: The government made 6 some similar arguments in the honest services 7 case, that everything can be cured by a mens 8 rea requirement. 9 actus reus. We don't need to worry about We'll tell you about the actus 10 reus when we get there. 11 law of honest services. We'll create a common 12 And here it seems to me that's the 13 government's parallel -- parallel argument, 14 that we're not going to tell you what 15 qualifies. 16 We'll find out later. And sometimes it's going to be simply 17 paying cash. 18 keeping records. 19 we going to wind up in the same place, that you 20 drive this thing to such enormous breadth in 21 its interpretation that you're -- you're 22 inviting a vagueness challenge at the back end? 23 Sometimes it's not going to be And -- and I just wonder are MR. PARKER: I -- I disagree with 24 that, Justice Gorsuch, and I'd like to just 25 take a moment to explain why. Heritage Reporting Corporation Official - Subject to Final Review 35 1 So there are a number of limiting 2 features of this statute that provide 3 protection against precisely what you are 4 explaining. 5 of them. 6 And I think there are really three The first is there has to be a natural 7 tendency to obstruct. 8 factual nexus that Aguilar says is baked into 9 the term "endeavor." 10 11 This is the objective There's at least that. JUSTICE GORSUCH: enough, though? 12 MR. PARKER: 13 JUSTICE GORSUCH: 14 MR. PARKER: Well, it is in this Actually, no. I don't think that that -­ 17 18 No, not necessarily. case. 15 16 And paying cash is JUSTICE GORSUCH: That's -- that's in the jury instructions. 19 MR. PARKER: The -- the -- paying cash 20 was one of the means of the instructive 21 endeavor. 22 JUSTICE GORSUCH: 23 MR. PARKER: Right. It was a -- a factual way 24 that the individual was engaging in obstructive 25 conduct. But you then have to determine that Heritage Reporting Corporation Official - Subject to Final Review 36 1 on the overall facts of this case there was a 2 natural tendency of that act to obstruct. 3 You also have to show that the 4 individual intended, specifically intended to 5 obstruct the -- the administration of the code. 6 And then third -­ 7 JUSTICE ALITO: 8 Before you go on, what do you do with the term "impede"? 9 MR. PARKER: Well, I -- I think that 10 the term "impede" is largely coextensive with 11 the term "obstruct." 12 In fact -­ JUSTICE ALITO: Well, I don't know 13 whether it is. The -- the dictionary 14 definition of "impede" is: 15 slow the progress of. Interfere with or 16 So anything that makes the work of the 17 IRS more difficult impedes the work of the IRS. 18 MR. PARKER: I -- I -- well, I would 19 disagree with the statement that anything that 20 makes the work of the IRS more difficult. 21 I think this goes to what I was just about to 22 say. 23 24 25 JUSTICE ALITO: disagree with that? MR. PARKER: Why? Why? And Why do you On what basis? So -- so you have -- you Heritage Reporting Corporation Official - Subject to Final Review 37 1 have to have the natural tendency to obstruct. 2 You then have to have proof. 3 4 5 JUSTICE ALITO: You have the mens rea. What do you have besides the mens rea? MR. PARKER: Well, you -- you then 6 have to be acting corruptly, which means that 7 you have to have the specific intent to obtain 8 an unlawful advantage. 9 JUSTICE ALITO: 10 11 That's the mens rea. What do you have besides the mens rea? MR. PARKER: So let's say that you are 12 engaged in lawful conduct, you're paying people 13 in cash, or you have structured your corporate 14 form in a way that may make it more complicated 15 for the IRS to figure out what your income and 16 expenses are. 17 Those things do not have a natural 18 tendency to obstruct in and of themselves 19 because there is nothing that says that the 20 administration of the code has to be made 21 maximally easy. 22 The only reason that those would end 23 up having an obstructive effect is if you pair 24 them with efforts to mislead or deceive the IRS 25 into believing that the situation is not as it Heritage Reporting Corporation Official - Subject to Final Review 38 1 appears for an unlawful advantage. 2 -- 3 JUSTICE ALITO: So in the Well, where does this 4 come from in the language of the statute? 5 mean, this -- that's what troubles me about 6 this. 7 in ordinary language, slow the progress of, you 8 don't even have to impede. 9 you endeavor to impede. 10 I If I read "impede" to mean what it means It's enough that The only limiting thing I see here is 11 corruptly. 12 the old saying, it's lawful for taxpayers to 13 avoid taxes but not to evade taxes. 14 line is -- the line can be very -- can be very 15 thin. 16 And, you know, the old, you know, MR. PARKER: So the I'm not sure actually 17 that it is all that thin. 18 -- what -- what is important to remember here 19 is that there has to be an effort to actually 20 convert that completely lawful conduct into 21 something that has the natural tendency to 22 obstruct or impede the IRS in an unlawful 23 manner to obtain an unlawful benefit. 24 25 JUSTICE ALITO: And I think that the Well, let me just give you a variation of the hypothetical that's Heritage Reporting Corporation Official - Subject to Final Review 39 1 already been given. 2 So somebody -- somebody offers to 3 clean my gutters, and he says $100 cash, $125 4 if you pay me by check. 5 this? 6 MR. PARKER: 7 JUSTICE ALITO: 8 MR. PARKER: 9 10 Is that a violation of No, not at all. Why -- why not? Well, because there -­ there is no -­ JUSTICE ALITO: What if I -- what if 11 I, you know, I understand why he's going to 12 give me the discount by paying by cash, because 13 he doesn't want to report it. 14 MR. PARKER: Well, again, I think that 15 you would then have to pair that with other 16 efforts to deceive the IRS, as you did here. 17 mean, Mr. Marinello -­ 18 19 20 JUSTICE ALITO: Why? I Why isn't that sufficient in itself? MR. PARKER: Because there's no 21 natural tendency of the mere fact that you give 22 him $100 in cash to obstruct anything. 23 becomes obstructive about that is if that is 24 then not reported to the IRS or is falsely 25 reported to the IRS. Heritage Reporting Corporation What Official - Subject to Final Review 40 1 2 JUSTICE SOTOMAYOR: I know he's not going to report, and he doesn't report. 3 MR. PARKER: Well, I think that if -­ 4 if you actually have the subjective specific 5 intent that you are giving him this money with 6 the intent that he is not going to report it to 7 the IRS, and you are engaged in a common 8 endeavor to -- to obstruct the IRS's ability to 9 duly administer to the code, I think -­ 10 JUSTICE KAGAN: But doesn't everybody 11 know -- doesn't everybody know when they're 12 given an offer like this, you know, I'd rather 13 have cash than a check, doesn't everybody know 14 why people would rather have cash than a check? 15 MR. PARKER: Well, that may be true, 16 but, again, this is I think precisely why these 17 sorts of things, A, are -- are not charged 18 under this statute but, B, I think would be 19 incredibly difficult to charge under this 20 statute. 21 JUSTICE BREYER: Why? Why? I mean, 22 that's -- you have used several times the words 23 "specific intent." 24 intent to me in the law means knowledge that 25 the particular action is unlawful. So is it the -- specific Heritage Reporting Corporation Official - Subject to Final Review 41 1 MR. PARKER: Uh-huh. 2 JUSTICE BREYER: So are you saying the 3 government's position is we cannot under this 4 statute prosecute any person for anything he 5 does unless that person knows that what he is 6 doing, such as giving money to a person in 7 cash, will be used to provide a benefit to that 8 person that is unlawful, he knows that doing 9 this, what he is doing, is unlawful, and unless 10 he knows that, the statute does not permit 11 prosecution? 12 13 MR. PARKER: accurate. 14 I -- I think that that is I mean, you -­ JUSTICE BREYER: No, don't think it's 15 accurate. 16 the United States is saying this statute does 17 not permit us to prosecute any person, unless 18 that person knows that the action he is taking 19 -- I'm repeating myself -- such as giving the 20 money in cash, breaks the federal law, and he 21 also knows that what he is doing in giving that 22 money breaks the federal law? 23 MR. PARKER: 24 JUSTICE BREYER: 25 I want to know if the government of Well, he has -­ If he does not know both of those things, he cannot be prosecuted Heritage Reporting Corporation Official - Subject to Final Review 42 1 under this statute. 2 position of the United States, on that question 3 of interpretation, it is an interpretation of 4 the word "corruptly." 5 6 Now, I'm interested in the MR. PARKER: Yes. Both of the things that -­ 7 JUSTICE BREYER: Yes, the answer is 8 the position of the United States is what I 9 just said is correct. 10 No one can be prosecuted unless both those things are true? 11 MR. PARKER: Both of those things, I 12 think, are -- are entirely subsumed by the 13 definition of corruptly. 14 specific intent -­ 15 16 JUSTICE BREYER: MR. PARKER: I would Yes. I mean, as I said -- 19 20 All right. like a yes or a no answer to that question. 17 18 You have to have the JUSTICE BREYER: Okay. Thank you. The answer is yes. That's helpful. 21 MR. PARKER: Certainly. 22 JUSTICE GINSBURG: 23 another question about this statute? 24 charge is that it would make any tax crime a 25 misdemeanor, felony, you could tack this Well, may I ask you The Heritage Reporting Corporation Official - Subject to Final Review 43 1 obstruction charge onto any tax crime in the 2 code and then you just get an additional 3 penalty. 4 Is that so? Let's say -- well, let's 5 take tax evasion, tax fraud. 6 also qualify as obstruction? 7 MR. PARKER: Wouldn't those Tax evasion may because 8 there you are willfully attempting to obtain -­ 9 to evade a tax deficiency, although the -- the 10 -- if you can prove tax evasion, there's little 11 reason to prove obstruction. 12 However, all of the other ones, the 13 answer is no. 14 Section 7212, they are different than the 15 elements that you will find in any other 16 criminal provision in the -- in the Internal 17 Revenue Code. 18 If you look at the elements of They require corruption. They require 19 an intent to obstruct. 20 require willful actions or willful failures to 21 act that may -­ 22 23 24 25 Other provisions JUSTICE KAGAN: Is that the only difference, it's just the mens rea difference? MR. PARKER: Well, I think that's -­ yes, I mean, you also must have a natural Heritage Reporting Corporation Official - Subject to Final Review 44 1 tendency to obstruct. 2 failing to report your income, withholding that 3 information that you are lawfully required to 4 provide I think has that natural tendency. 5 And, for example, But if you look at these other 6 provisions, take, for example, failure to file 7 a tax return, there are going to be individuals 8 -- and, in fact, I would wager to say that 9 there are probably a large number of 10 individuals -- who do not file their tax 11 returns for reasons that have nothing to do 12 with a specific intent to obtain an unlawful 13 advantage. They may say -­ 14 JUSTICE KAGAN: 15 MR. PARKER: Like what? Like what? They may say -- they may 16 say sometimes I owe a small amount of tax. 17 Sometimes I get a small refund. 18 worth it to file. 19 It's just not In that circumstance, there's no 20 intent to obtain that unlawful advantage 21 because you don't know whether you're going to 22 be advantaged or not. 23 I think the same thing could be said 24 of, you know, failure to keep records. 25 destroy all of your records because they're Heritage Reporting Corporation You Official - Subject to Final Review 45 1 just sitting around and it makes you upset to 2 have so many records in your house. 3 There's nothing -- maybe that is a 4 willful violation of a misdemeanor provision, 5 but it wouldn't qualify under Section 7212 6 under any definition -­ 7 8 JUSTICE GORSUCH: It is a -- it is a remarkable -­ 9 CHIEF JUSTICE ROBERTS: There is a 10 concern on the other side, I guess, which is, I 11 think you used the word "cantankerous," in your 12 brief, is that right, that some people are just 13 cantankerous and they are just not going to 14 file. 15 MR. PARKER: Yes. 16 CHIEF JUSTICE ROBERTS: Perhaps that's 17 a fairly small number of people compared to the 18 situation where it is not terribly difficult 19 for an assistant U.S. attorney to prove that 20 something was done corruptly as opposed to 21 willfully. 22 MR. PARKER: Well, I -­ 23 CHIEF JUSTICE ROBERTS: It's kind of 24 like the discussion we were having, that it's 25 not hard to prove that paying in cash rather Heritage Reporting Corporation Official - Subject to Final Review 46 1 than a check when you get a discount was for a 2 purpose to give a -- a lawful advantage. 3 MR. PARKER: 4 CHIEF JUSTICE ROBERTS: 5 6 Well, I don't -­ An unlawful advantage. MR. PARKER: I would -- I'm not sure 7 it's correct to say that these are rare cases. 8 I would say that they are not, as a general 9 matter, prosecuted, and so they don't result in 10 published opinions; but I would say that -- I 11 would say that the main concern here with kind 12 of this over-criminalization of the tax code, I 13 don't think actually plays out in practice. 14 Our -- I can represent to the Court 15 that our internal data indicates that 16 obstruction charges are brought in 17 approximately 4 percent of criminal tax cases. 18 CHIEF JUSTICE ROBERTS: Is it still -­ 19 4 percent. 20 the Department to charge to the maximum extent 21 reasonably possible? 22 Is it still the published policy of MR. PARKER: I -- I believe that we, 23 as -- as a general matter, do seek out the most 24 serious charge. 25 However, especially in the -­ JUSTICE KAGAN: I thought that there Heritage Reporting Corporation Official - Subject to Final Review 47 1 was new guidance saying exactly that in the 2 last year. 3 MR. PARKER: Yes. I believe that 4 that's correct. However, my -- my point would 5 be -- I don't think that there's any 6 requirement that this particular provision be 7 charged in any given case -­ 8 JUSTICE KENNEDY: 9 MR. PARKER: 10 Suppose we -­ -- because of all the limitations. 11 JUSTICE KENNEDY: Suppose we were to 12 conclude that 80 percent of criminal tax 13 misdemeanor violations could be accompanied by 14 the felony charges contained within this 15 statute. 16 17 18 Would that be cause for our Court to be concerned? MR. PARKER: Well, I'm not sure that 19 it would necessarily be cause for concern. 20 think that would be surprising. I 21 However, I would note that as this 22 Court has explained in many cases, there is 23 substantial overlap as a factual matter between 24 the misdemeanor and felony provisions of the 25 Internal Revenue Code. The Court has -­ Heritage Reporting Corporation Official - Subject to Final Review 48 1 JUSTICE KENNEDY: You do not -­ 2 MR. PARKER: -- repeatedly said -­ 3 JUSTICE KENNEDY: You -- you do not 4 think we should be concerned if 80 percent of 5 tax misdemeanor violations can be increased to 6 a felony under this statute? 7 cause for concern? 8 9 MR. PARKER: That's not a Well, again, I'm -- I'm not -­ 10 JUSTICE KENNEDY: 11 MR. PARKER: Yes or no. I don't think it is, only 12 because Congress has specifically provided an 13 interlocking web of criminal penalties in this 14 area. 15 have a self-reporting system of taxation -­ And it has done so precisely because we 16 JUSTICE BREYER: The self -­ 17 MR. PARKER: 18 CHIEF JUSTICE ROBERTS: -- that depends upon -­ Just to be 19 clear, it's not -- my line of questioning is 20 not to suggest bad faith on the part of the -­ 21 of the Department, but instead to suggest that 22 that concern may have motivated Congress -­ 23 should motivate a narrower understanding of 24 what Congress intended in this particular 25 provision. Heritage Reporting Corporation Official - Subject to Final Review 49 1 MR. PARKER: Well, I think that that's 2 a fair point, Mr. Chief Justice, but I think 3 that it does not motivate the adoption of the 4 limiting construction that Petitioner is 5 proposing. 6 Remember, Petitioner's -­ 7 JUSTICE GORSUCH: On -- on that score, 8 the verbs "obstruct" and "impede" along with 9 "corruptly," the adverb, you normally expect 10 there to be an object to them. 11 because it is specific intent, as Justice 12 Breyer pointed out, and you have conceded. 13 I have to -­ I have to know about some thing and I 14 have intend to obstruct or impede that thing. 15 And the government's interpretation of that 16 thing, as I understand it, in its words is the 17 continuous, ubiquitous, and universal 18 collection of taxes. 19 Is -- is that an object that's 20 reasonably inferred? 21 -- know of and intend to impede or obstruct, 22 corruptly or otherwise, something that is 23 continuous, ubiquitous, and universal? 24 25 MR. PARKER: Can one -- can one intend Well, respectfully Justice Gorsuch, I don't think that that is Heritage Reporting Corporation Official - Subject to Final Review 50 1 what we were saying. 2 3 JUSTICE GORSUCH: MR. PARKER: JUSTICE GORSUCH: -- your brief in opposition, right? 8 9 I -- I think we're not saying -­ 6 7 I think that's out of -­ 4 5 I -­ MR. PARKER: Those -- but those words refer to the understanding of individuals about 10 the fact that tax administration occurs on a 11 routine schedule. 12 JUSTICE GORSUCH: But -- but don't 13 those -- don't those verbs imply that there is 14 something more direct as the object of my 15 actions than -- than something that is 16 continuous, ubiquitous, and universal? 17 18 MR. PARKER: that's true. 19 20 21 Well, certainly I think I think -­ JUSTICE GORSUCH: helpful. Okay. That's Thank you. MR. PARKER: -- that you have to be 22 specifically intending to obstruct to the 23 administration of the code. 24 that we're making is that administration, 25 unlike in the case of the due administration of And the only point Heritage Reporting Corporation Official - Subject to Final Review 51 1 justice, which involves discrete proceedings 2 that many Americans will go their entire lives 3 without having a connection to, the due 4 administration of the Internal Revenue Code 5 occurs on a routine and predictable schedule 6 that people know is coming and can reasonably 7 foresee. 8 JUSTICE BREYER: 9 MR. PARKER: 10 You are -­ But, I think there are -­ JUSTICE BREYER: -- if you want, I 11 want this answer. 12 your answer, but I want you to augment it. 13 I don't want to interrupt And you started to do that when you 14 started to talk about, just what we were 15 talking about. 16 three principles: 17 Look, if I put it differently, One, the Chief Justice, I think, 18 enunciated, and I -- it sounds comical if I am 19 going to say it, but it's very important; it is 20 not an appropriate way of interpreting a 21 statute. 22 Look, perfect criminal statute, it is 23 a crime to do wrong in the opinion of the 24 attorney general. 25 it properly. Don't worry, we'll interpret Heritage Reporting Corporation Official - Subject to Final Review 52 1 Even if you do interpret it properly, 2 no. The answer under the Constitution, I 3 think, is no. 4 The second principle is right here in 5 Aguilar, both of them, the second and third. 6 We have traditionally exercised restraint in 7 assessing the reach of a federal criminal 8 statute, both out of deference to the 9 prerogative of Congress and out of concern that 10 a fair warning should be given to the world in 11 language that the common world will understand 12 of what the law will do, if a certain line is 13 passed. 14 From those principles, they conclude 15 that a statute identically worded to this one 16 but for the word justice instead of title 17 requires a nexus be shown to a specific grand 18 jury or jury proceeding, a -- a court 19 proceeding; even though, of course, you can 20 read the word justice to include the word 21 investigators and many other things. 22 All right. They're saying, in effect, 23 you take those same principles, that same 24 limiting restriction, and do the same analogous 25 thing here. Heritage Reporting Corporation Official - Subject to Final Review 53 1 Now, why not? 2 MR. PARKER: I think there are a 3 number of reasons not to do that. 4 all, I think that the -- as I just explained, 5 the due administration of justice has always 6 been understood to be something that occurs in 7 discrete proceedings, unlike the administration 8 of the Internal Revenue Code; but I think that 9 that is confirmed by the history of Section 10 First of 1503. 11 The predecessor statute to 1503 12 specifically said that it only applied to the 13 obstruction of officers or witnesses in any 14 court of the United States or the due 15 administration of justice therein. 16 Now, when Congress recodified that 17 provision in 1948 it modified the wording, but 18 as this Court has repeatedly explained, that 19 1948 recodification was not intended to have 20 any substantive effect on any of the provisions 21 in the code. 22 JUSTICE GORSUCH: But Congress 23 legislates against the backdrop of what's out 24 there. 25 interpretation of those words requiring a nexus And what was out there was our Heritage Reporting Corporation Official - Subject to Final Review 54 1 to an active proceeding, something more than -­ 2 something more definite than something that's 3 continuous, ubiquitous and universal. 4 MR. PARKER: Well -­ 5 And -- and the Congress that passed 6 this statute had that interpretation in its 7 back pocket at the time; right? 8 MR. PARKER: But I would disagree with 9 that because in none of this Court's cases, in 10 Pettibone, in Aguilar, Arthur Andersen, any of 11 them did this Court ever suggest that it is the 12 phrase "due administration" not the phrase "due 13 administration of justice," that carries that 14 connotation. 15 And I would also note that if that is, 16 in fact, what Congress intended, it is very 17 strange because Congress had just a few years 18 earlier enacted the statute that is now Section 19 1505, cited in our brief. 20 And that statute was specifically 21 enacted to do exactly what -- what you're 22 suggesting, Justice Gorsuch. 23 extend the provisions of Section 1503 to 24 pending proceedings before agencies of the 25 United States. It was enacted to And that is what it says. Heritage Reporting Corporation Official - Subject to Final Review 55 1 If the Petitioner's interpretation 2 were correct, then I think that there's really 3 no reason for Congress to have enacted that, 4 and it would be awfully strange for Congress 5 not to have borrowed that language. 6 But I would also note that there are a 7 number of -- as I -- getting back to the point 8 I was making previously, there is no reason to 9 adopt his particular limiting construction, 10 which frankly I think has no basis in the text, 11 and does not solve these problems. 12 JUSTICE KAGAN: Mr. Parker, can I go 13 back to the question of -- of -- of the 14 Department's prosecution policy? 15 And, you know, could you tell me, 16 Number 1, what the current state of the 17 Department's guidance is as to whether 18 prosecutors are -- are told to prosecute to the 19 maximum extent allowed by law; and, Number 2, 20 whether that would mean in this case that here 21 I am a prosecutor and I think that some action 22 falls within 7212, that I would be precluded 23 from proceeding instead under 7203 or 7205 or 24 7207. 25 MR. PARKER: My understanding is it is Heritage Reporting Corporation Official - Subject to Final Review 56 1 certainly the Department's position as a 2 general matter that prosecutors should be 3 charging the most serious offense that is 4 readily provable on those facts. 5 I -- I -- I couldn't say whether in 6 any given case that would mean that 7 Section 7212 would have to be charged because, 8 as I said before, the facts of each case are 9 going to be different and they're going to make 10 the ability to prove Section 7212 more or less 11 possible. 12 And there are going to be a number of 13 cases where I think 7212 isn't even possible 14 to -- even to allege. 15 -- I'm not sure that it's -­ 16 And so I -- I think that JUSTICE KAGAN: Yes, but I guess what 17 I was saying is that if a prosecutor could 18 proceed under 7212, that the prosecutor is 19 being instructed that she must proceed under 20 that section. 21 MR. PARKER: If -- if -- if the facts 22 of that case render a 7212 charge readily 23 provable, then, yes, I think that prosecutors 24 would do that, but I -- I also think that that 25 is not borne out by -- a concern that that is Heritage Reporting Corporation Official - Subject to Final Review 57 1 going to lead to just these sorts of charges 2 becoming common and ubiquitous doesn't 3 necessarily translate because, as I said, our 4 understanding is that it's only about 4 percent 5 of cases. 6 7 8 9 And that includes the most recent data from this -- from this year. And so -­ CHIEF JUSTICE ROBERTS: And, counsel, you used the phrase "readily provable." I just 10 want to as a question of fact, is that -- is 11 that the term that's used or is that your 12 summary of what you understand? 13 MR. PARKER: I -- I don't exactly 14 remember the term that is used, but certainly 15 the government has to satisfy itself that it 16 can prove beyond a reasonable doubt in that 17 case that that crime has occurred. 18 I -- I also, though, want to -­ 19 JUSTICE ALITO: Well, before you move 20 off that point, why should we be comforted by 21 the fact that prosecutorial discretion can be 22 used in applying a statute, if this is a 23 statute, with a really broad reach so that it 24 reaches a lot of rather trivial conduct? 25 Doesn't that make the situation worse rather Heritage Reporting Corporation Official - Subject to Final Review 58 1 than better? 2 decide where they want to use this. 3 So then the prosecutors can MR. PARKER: I -- I don't think that 4 it does. I mean, I think that the government 5 has the -- the responsibility to enforce 6 Congress's statutes. 7 And if Congress has provided that this 8 particular conduct is criminal, then I think 9 that that is appropriate. I don't think that 10 there is anything that is particularly 11 standardless or vague or -- or otherwise 12 uncertain about this particular statute. 13 JUSTICE GINSBURG: May I ask you, this 14 was, I think, brought up by the opposing side. 15 It is about 7212(b). 16 So the crime is rescuing seized 17 property. 18 two-year penalty. 19 to that 7212(a), obstruction of the 20 administration of the IRS -- IRC, so then -­ 21 which is a three-year maximum? 22 Rescuing seized property carries a Could the government tack on MR. PARKER: I -- I suppose that if 23 the government could prove that the person did 24 so with corrupt intent, and I think that that's 25 the main difference, obviously, between those Heritage Reporting Corporation Official - Subject to Final Review 59 1 two provisions, in addition to the different 2 statutory penalties, if we could prove that, 3 then I think that would be available. 4 I'm not sure why the government would 5 want to tack one on to the other. 6 would all end up being charged as obstruction 7 anyway, and so I'm not sure why that would make 8 sense, but I -- I think it's possible. 9 I mean, this There are -- there are -­ 10 JUSTICE GINSBURG: Well, it would -­ 11 if it was the highest penalty, it's three years 12 under 7212(a) and only two years under 7212(b). 13 MR. PARKER: Uh-huh. 14 JUSTICE GINSBURG: So with a maximum 15 charging, why wouldn't the -­ 16 MR. PARKER: Well, because I think we 17 would simply proceed under Section 7212(a), 18 because that is the -- carries the higher 19 potential penalty. 20 I -- I would like to, in -- in the 21 time I have remaining, just be sure to make two 22 points. 23 The first is that Petitioner's 24 proposed limiting construction, as we've said, 25 it doesn't come -- it doesn't have a basis in Heritage Reporting Corporation Official - Subject to Final Review 60 1 the text, but that doesn't mean that there 2 aren't other potential limiting constructions 3 that this Court could adopt, either in this 4 case or in another appropriate case. 5 I think, Justice Sotomayor, you 6 alluded to the possibility of excluding pure 7 omissions from -- from the scope of the statute 8 to try to differentiate between the misdemeanor 9 provisions and this one. 10 The Court actually engaged in a very 11 similar analysis in Spies. 12 evasion case where it determined that 13 omissions, pure omissions at least, would not 14 qualify. 15 That was the tax And I think that that may be an 16 appropriate limiting construction here. 17 has suggested that. 18 Petitioner hasn't is because it wouldn't really 19 help him. 20 No one And I think the reason The only two means of the endeavor in 21 this case that were charged as failures to act, 22 if you look at the evidence, it was clear that 23 he was engaged in clear affirmative actions of 24 destroying his records and other things. 25 that's one point I'd like to make. Heritage Reporting Corporation So Official - Subject to Final Review 61 1 And the second is one of the main 2 problems here is that obstruction will -­ 3 obstruction at the front end will often prevent 4 the government from being able to charge 5 appropriate offenses on the back end. 6 case demonstrates that perfectly. 7 And this The government would have brought a 8 tax evasion charge in this case but for the 9 fact that Mr. Marinello so destroyed his 10 records that it was unable to prove beyond a 11 reasonable doubt that there was an actual tax 12 deficiency. 13 And so what I think Petitioner's 14 proposed construction would do is it would 15 effectively allow individuals to evade their 16 taxes and then obstruct their way down to a 17 misdemeanor charge, or if they are particularly 18 good at it, maybe obstruct their way out of 19 criminal penalties at all. 20 And the government could do nothing 21 about it, unless the individual actually 22 happened to be obstructing a pending audit or 23 investigation. 24 25 Audits and investigations are types of administration, but the Internal Revenue Code Heritage Reporting Corporation Official - Subject to Final Review 62 1 contains an entire subtitle called "Procedure 2 and Administration" that lists in sequential 3 chapters all of the different types of 4 administration that occur. 5 That includes the gathering of 6 information that taxpayers must self-report. 7 It includes the calculation and assessment of 8 taxes, the collection of taxes. 9 It would be very strange, I think, for 10 Congress to have specified that with such -­ 11 with such clarity and then to have intended by 12 referencing the due administration of this 13 title to cut out all of that administrative 14 functions and only focus on audits and 15 investigations. 16 JUSTICE GINSBURG: You gave the 17 example of the omission that Justice Sotomayor 18 brought up. 19 potentially huge scope of this provision? 20 What else could limit the MR. PARKER: Well, I think that -- I 21 mean, I -- I don't mean to repeat myself, but I 22 do think, Justice Ginsburg, that a rigorous 23 enforcement of the mens rea requirement does 24 that. 25 And this Court has repeatedly said Heritage Reporting Corporation Official - Subject to Final Review 63 1 that in the obstruction context, rigorous 2 enforcement of mens rea requirements is what 3 separates individuals who do not have or have 4 not committed culpable conduct from those who 5 do. 6 And I don't think that this 7 obstruction provision -- may I conclude? 8 don't think this obstruction provision should 9 be treated any differently. 10 11 I Thank you. CHIEF JUSTICE ROBERTS: Thank you, counsel. 12 Mr. Hellman, four minutes remaining. 13 REBUTTAL ARGUMENT OF MATTHEW S. HELLMAN 14 ON BEHALF OF PETITIONER 15 16 MR. HELLMAN: Justice. Thank you, Mr. Chief Just a few quick points. 17 I want to begin with the misdemeanors, 18 the willful misdemeanors in the code. 19 I heard my friend on the other side suggest 20 that it could very well be that a highly 21 substantial number of those misdemeanors would 22 qualify as obstruction, which is in itself a 23 problem. 24 25 I think And, again, it requires this Court to think that the crimes that the Congress made Heritage Reporting Corporation Official - Subject to Final Review 64 1 the centerpiece of the code, these willful 2 offenses, really are only meant for the 3 idiosyncratic case in which somebody 4 intentionally violates the law but not for any 5 particular benefit. 6 In the context of willful tax 7 violations, I think in the substantial majority 8 of cases, if not all, you're going to have a 9 prosecutor who can say this was done for a 10 reason, some unlawful benefit, which may not 11 even be financial. 12 Second, as to the safeguards that the 13 mens rea requirement offers, in a world in 14 which not consulting fully with an accountant, 15 paying in cash, not keeping all records can 16 become obstruction, if they're done for the 17 wrong reason, then you really are leaving it up 18 to the prosecutor who is required under current 19 charging rules to charge as aggressively as 20 possible, to decide what was in the defendant's 21 mind. 22 Not every case goes to trial. Very 23 few cases go to trial. With a felony 24 conviction in the balance, you're going to find 25 that this gives enormous leverage, even more so Heritage Reporting Corporation Official - Subject to Final Review 65 1 2 than they currently have, to prosecutors. Third, there's a suggestion here that 3 the government needs this broad interpretation; 4 otherwise, wrongdoing will go unpunished. 5 They can't point to a single case 6 since 1954 where that was the case. It is 7 certainly not the case here, where the 8 government told the jury repeatedly that Mr. 9 Marinello had substantial gross income and took 10 substantial personal income from that. 11 Exhibits 21 and 22 below and pages 516 to 518 12 make that point very clearly. 13 Fourth, the omissions theory as an 14 alternative way of limiting this. 15 doesn't make sense of the statutes that are 16 misdemeanors, like forcible rescue, like 17 willful false statements, that are affirmative 18 acts but less punishment than the -- than the 19 7212 obstruction charge. 20 Again, that The last thing I want to say is we 21 believe that based on the heritage of this 22 language and the fact that obstruction statutes 23 typically are focused on proceedings, that is 24 the interpretation we've offered to the Court. 25 But as Justice Gorsuch and Justice Heritage Reporting Corporation Official - Subject to Final Review 66 1 Sotomayor pointed out, there are other ways of 2 reading the officers clause in conjunction with 3 the administration clause to come up with a 4 more limited standard that does not cover any 5 of the context -- conduct in this case, act or 6 omission. 7 8 9 10 So for those reasons, we would ask the Court to reverse. JUSTICE GINSBURG: What do you derive from the officer clause? 11 MR. HELLMAN: 12 JUSTICE GINSBURG: 13 14 So, what is it? I -- I'm sorry? What -- what is the limit that you are now proposing? MR. HELLMAN: The limit that I am 15 understanding Justice Sotomayor and Justice 16 Gorsuch to be suggesting is, if you are -- if 17 your obstructive act or omission is in the 18 context with some interaction with the IRS, 19 not, say, failing to talk to an accountant on 20 your own time, not paying someone in cash in 21 your own home, but in some interaction with the 22 IRS, that could be a limitation; that would 23 limit it. 24 I think -­ 25 JUSTICE GORSUCH: An -- an Heritage Reporting Corporation Official - Subject to Final Review 67 1 interaction, although no audit, no proceeding 2 is yet under way? 3 MR. HELLMAN: Yes, that -- yes, that 4 is the rule. Now, I think that if in practice, 5 if you applied that, it would start to look an 6 awful like a proceeding requirement, maybe a 7 little broader around the edges, maybe a little 8 bit more flexibility, but it would be in 9 substance kin to it. 10 JUSTICE BREYER: 11 JUSTICE GORSUCH: Are you -­ You think it's 12 preferable given its heritage and for other 13 reasons? 14 MR. HELLMAN: Yes. 15 JUSTICE BREYER: Yes. So I think you're 16 suggesting work with the word in the statute, 17 "administration." That's the word? 18 MR. HELLMAN: Yes. 19 JUSTICE BREYER: All right. So if I 20 start working with that word, do you have on 21 the top of your head two or three cases or 22 something I might read? 23 24 25 MR. HELLMAN: Well, I think if you look at -­ JUSTICE BREYER: Aguilar, but what Heritage Reporting Corporation Official - Subject to Final Review 68 1 else? 2 MR. HELLMAN: Sure. Sure. Aguilar, 3 and if you look at the jury instructions in 4 cases that have interpreted other obstruction 5 statutes that apply to proceedings, which is 6 never a defined term in those statutes, I don't 7 have a case name for you, you'll see that they 8 start to look like things like an audit where 9 you have an individualized assessment or 10 enforcement of some obligation enforceable by a 11 subpoena power. 12 Thank you. 13 CHIEF JUSTICE ROBERTS: 14 15 16 counsel. Thank you, The case is submitted. (Whereupon, at 11:59 a.m., the case in the above-entitled matter was submitted.) 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation 69 Official - Subject to Final Review � $ $1,000 [1] 6:8 $100 [2] 39:3,22 $125 [1] 39:3 $2,000 [1] 33:1 $600 [2] 11:21 32:3 1 1 [2] 25:25 55:16 10:58 [2] 1:15 3:2 1099 [4] 11:24 19:3 32:4 33:19 11:59 [1] 68:15 1503 [7] 15:8,10 16:1,11 53:10,11 54:23 1505 [1] 54:19 1512 [1] 6:22 1512(f [1] 6:24 16-1144 [1] 3:4 1948 [2] 53:17,19 1954 [1] 65:6 1980s [1] 7:16 2 2 [1] 55:19 2000s [1] 10:24 2004 [1] 6:2 2017 [1] 1:11 21 [1] 65:11 22 [1] 65:11 3 3 30 [2] 2:7 30:6 [1] 2:4 4 4 [3] 46:17,19 57:4 5 516 [1] 65:11 518 [1] 65:11 6 6 [1] 1:11 600 [1] 33:3 63 [1] 2:10 7 7203 7205 [2] 17:8 55:23 7206 [1] 25:24 7207 [2] 25:24 55:24 7212 [12] 10:24 15:9 16:16 43:14 [1] 55:23 45:5 55:22 56:7,10,13,18,22 65: 19 7212(a [3] 58:19 59:12,17 7212(b [2] 58:15 59:12 8 80 [2] 47:12 48:4 9 90s [2] 10:23 30:11 A a.m [3] 1:15 3:2 68:15 ability [4] 5:10,15 40:8 56:10 able [1] 61:4 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Corporation Sheet 2 business - effect 71 effectively [1] 61:15 effort [1] 38:19 efforts [2] 37:24 39:16 either [1] 60:3 elements [2] 43:13,15 employee [2] 17:9 24:11 employer [1] 17:13 employing [1] 33:5 enacted [9] 3:22 6:25 9:24 15:10 30:7 54:18,21,22 55:3 enacting [1] 15:9 end [6] 23:17 34:22 37:22 59:6 61: 3,5 endeavor [5] 35:9,21 38:9 40:8 60: 20 endeavors [2] 24:10,18 endorsed [1] 27:24 enforce [1] 58:5 enforceable [1] 68:10 enforcement [3] 62:23 63:2 68:10 engaged [4] 37:12 40:7 60:10,23 engaging [1] 35:24 enormous [2] 34:20 64:25 enough [2] 35:11 38:8 entire [3] 17:3 51:2 62:1 entirely [4] 4:2 27:3 31:1 42:12 enunciated [1] 51:18 especially [1] 46:24 essentially [1] 9:9 evade [3] 38:13 43:9 61:15 evasion [7] 6:16 14:9 43:5,7,10 60: 12 61:8 evasive [1] 6:17 even [16] 4:23,24 7:1 8:20 11:2 14: 13 18:25 26:6 29:16 38:8 52:1,19 56:13,14 64:11,25 eventually [1] 13:11 everybody [5] 12:3 33:18 40:10, 11,13 everyday [1] 4:11 everything [3] 10:3 21:19 34:7 evidence [1] 60:22 exacting [1] 34:3 exactly [3] 47:1 54:21 57:13 example [10] 4:9 5:2 7:23 11:10 19:5 22:23 31:10 44:1,6 62:17 examples [1] 25:9 except [2] 20:8 21:6 exception [1] 14:9 excluding [1] 60:6 excuse [1] 10:16 exercised [1] 52:6 Exhibits [1] 65:11 expect [1] 49:9 expenses [1] 37:16 experience [4] 10:14 18:2,5,11 explain [2] 31:8 34:25 explained [5] 16:23 19:24 47:22 53:4,18 explaining [1] 35:4 explanation [1] 32:25 expressly [1] 16:13 extend [1] 54:23 extent [2] 46:20 55:19 Official - Subject to Final Review � fully [2] 28:23 64:14 F functions [1] 62:14 face [1] 22:12 fact [11] 15:21 18:23 36:11 39:21 44:8 50:10 54:16 57:10,21 61:9 65:22 facts [4] 36:1 56:4,8,21 factual [3] 35:8,23 47:23 failing [3] 8:24 44:2 66:19 failure [7] 5:8 8:24 11:6,7 33:15 44:6,24 failures [2] 43:20 60:21 fair [3] 21:22 49:2 52:10 fairly [1] 45:17 faith [1] 48:20 falls [2] 28:14 55:22 false [6] 6:18 8:19 25:19 26:2,4 65: 17 falsely [1] 39:24 FBI [1] 20:24 features [1] 35:2 federal [4] 32:6 41:20,22 52:7 feel [1] 15:1 felon [2] 32:1,7 felonies [3] 3:24 9:19 14:10 felonize [1] 19:25 felons [1] 9:6 felony [11] 3:11 5:13 9:13 10:3 17: 4,22 42:25 47:14,24 48:6 64:23 few [4] 15:10 54:17 63:16 64:23 figure [1] 37:15 file [10] 6:9,10 8:24 11:6,24 32:4 44:6,10,18 45:14 filed [1] 10:20 fill [1] 17:10 filling [1] 12:21 financial [1] 64:11 find [5] 10:2,15 34:15 43:15 64:24 first [9] 6:8 11:9 15:15 24:4 32:25 34:1 35:6 53:3 59:23 fit [1] 23:13 five [1] 18:1 flavor [1] 25:4 flexibility [1] 67:8 focus [2] 15:24 62:14 focused [1] 65:23 following [1] 15:9 force [6] 24:8,8,15,15 25:4,4 forcible [1] 65:16 foresee [1] 51:7 form [5] 12:22 17:11 18:24 33:19 37:14 formal [1] 13:21 forth [2] 9:17 25:9 four [1] 63:12 Fourth [1] 65:13 frankly [1] 55:10 fraud [1] 43:5 frequency [1] 30:12 friend [2] 30:25 63:19 friend's [1] 32:10 friendly [1] 27:21 front [1] 61:3 fruition [1] 30:11 further [1] 30:14 G gardener [7] 4:12 5:1 11:13,19 12: 14,24 18:25 gardening [1] 11:20 gathering [1] 62:5 gave [2] 7:23 62:16 geared [1] 24:20 General [5] 1:20 46:8,23 51:24 56: 2 generally [3] 14:8,9,10 gets [2] 15:5 26:11 getting [2] 28:2 55:7 GINSBURG [12] 4:4 16:10 18:14, 17 42:22 58:13 59:10,14 62:16,22 66:9,12 give [7] 12:6 14:25 31:10 38:24 39: 12,21 46:2 given [8] 13:22 28:5 39:1 40:12 47: 7 52:10 56:6 67:12 gives [1] 64:25 giving [4] 40:5 41:6,19,21 GORSUCH [39] 14:17 19:8,19 22: 22 26:12,25 27:9,18,20 28:10 29: 16,19,23 31:24 32:9,12,14,18,23 33:10 34:5,24 35:10,13,17,22 45: 7 49:7,25 50:2,6,12,19 53:22 54: 22 65:25 66:16,25 67:11 Gorsuch's [1] 21:16 got [6] 15:10,14,16 17:25 18:1 24: 22 government [19] 4:15 8:6 13:23 19:18 21:19 26:5 29:5 34:5 41:15 57:15 58:4,18,23 59:4 61:4,7,20 65:3,8 government's [11] 3:25 4:5,25 8: 9 9:11 17:1 29:10 30:4 34:13 41:3 49:15 grand [2] 21:1 52:17 grievous [1] 22:7 gross [1] 65:9 ground [1] 10:14 grounding [1] 15:3 guess [5] 11:23 14:22 15:4 45:10 56:16 guidance [2] 47:1 55:17 gutters [1] 39:3 H half [3] 12:7 15:15 24:5 happen [1] 13:8 happened [1] 61:22 happening [1] 10:14 hard [1] 45:25 harder [1] 4:17 harsh [1] 22:21 head [1] 67:21 hear [1] 3:3 heard [1] 63:19 HELLMAN [79] 1:18 2:3,9 3:6,7,9 4:7 5:19 6:14 7:6,9,13 8:5,10,17 10:8,18 11:11,14,17,22,25 12:10, 15,19,25 13:2,18 14:18,21 15:6 16:13 18:2,7,12,16 19:6,8,10,21 20:10,15,18,21 21:11,13,15 22:4, 14 23:1 24:6,13,23 25:1,7,10 26: 24 27:5,15,19,23 28:3,8,12,21 29: 6,18,22,25 63:12,13,15 66:11,14 67:3,14,18,23 68:2 help [4] 12:13,24 18:25 60:19 helped [1] 29:4 helpful [4] 20:6 27:4 42:20 50:20 heritage [2] 65:21 67:12 higher [1] 59:18 highest [1] 59:11 highly [1] 63:20 hinder [1] 26:15 hindered [1] 5:9 hindering [1] 26:6 hinders [2] 5:15 27:7 hire [1] 11:15 history [2] 16:7 53:9 home [1] 66:21 honest [2] 34:6,11 Honor [1] 10:18 hope [1] 29:6 House [2] 9:17 45:2 However [4] 43:12 46:24 47:4,21 huge [1] 62:19 hundreds [1] 10:25 hypothetical [1] 38:25 hypotheticals [1] 5:21 I identical 21:9 identically [1] 52:15 idiosyncratic [1] 64:3 II [1] 1:3 illegal [1] 4:14 imagine [2] 4:10 5:2 immoral [1] 20:1 impede [14] 15:17,17 24:11,18 36: [2] 20:7 8,10,14 38:6,8,9,22 49:8,14,21 impedes [2] 24:17 36:17 implication [1] 27:1 imply [1] 50:13 important [4] 22:18 33:25 38:18 51:19 include [1] 52:20 includes [3] 57:6 62:5,7 including [2] 24:9,16 income [4] 37:15 44:2 65:9,10 incorrect [2] 31:3,6 increased [1] 48:5 increasing [1] 30:11 incredibly [2] 23:8 40:19 Indeed [1] 3:25 independent [1] 33:5 indicates [1] 46:15 indict [1] 12:7 indictment [1] 33:14 indictments [1] 10:15 individual [5] 5:23 33:6 35:24 36: 4 61:21 individualized [1] 68:9 Heritage Reporting Corporation Sheet 3 effectively - individualized 72 Official - Subject to Final Review � individuals [5] 44:7,10 50:9 61:15 63:3 inferred [1] 49:20 information [2] 44:3 62:6 initiation [1] 14:4 instead [4] 20:9 48:21 52:16 55:23 instituted [1] 7:2 instructed [1] 56:19 instructions [3] 33:15 35:18 68:3 instructive [1] 35:20 intend [4] 21:21 49:14,20,21 intended [7] 4:3 36:4,4 48:24 53: 19 54:16 62:11 intending [2] 31:19 50:22 intense [1] 9:14 intent [13] 31:13,18 37:7 40:5,6,23, 24 42:14 43:19 44:12,20 49:11 58: 24 intentionally [2] 23:10 64:4 interacting [1] 8:1 interaction [3] 66:18,21 67:1 interested [1] 42:1 Interfere [1] 36:14 interlocking [1] 48:13 Internal [6] 43:16 46:15 47:25 51: 4 53:8 61:25 interpret [2] 51:24 52:1 interpretation [26] 4:1 7:22 12:5 13:6 14:14,20,23 17:1 21:25 22: 16,21 23:6 26:3 29:10 30:4,10 32: 1 34:21 42:3,3 49:15 53:25 54:6 55:1 65:3,24 interpretations [1] 23:25 interpreted [3] 20:12 21:5 68:4 interpreting [1] 51:20 interrupt [1] 51:11 intimidate [2] 15:17 24:10 investigate [1] 6:11 investigation [3] 6:4,10 61:23 investigations [2] 61:24 62:15 investigators [1] 52:21 inviting [1] 34:22 invoked [1] 30:6 involves [1] 51:1 IRC [1] 58:20 IRS [21] 4:17 5:6,24 6:18 26:18,21 27:7 28:24 36:17,17,20 37:15,24 38:22 39:16,24,25 40:7 58:20 66: 18,22 IRS's [2] 5:15 40:8 isn't [6] 4:14 23:5,17 32:15 39:18 56:13 isolation [3] 23:4,5,15 issue [1] 6:22 itself [3] 39:19 57:15 63:22 J job [1] 17:10 jury [7] 21:1 33:14 35:18 52:18,18 65:8 68:3 Justice [180] 1:21 3:3,10 4:4 5:17, 20 7:4,7,11,19 8:8,11 10:8,9,11,12 11:9,12,15,18,23 12:2,12,17,23 13: 2 14:17,18,22 16:10 17:24 18:4,8, 9,14,17,19 19:8,19 20:4,8,11,16, 19 21:4,7,12,14,16 22:1,5,22 23:2 24:2,7,14,24 25:2,8 26:12,14,25 27:9,11,18,20 28:1,4,5,9,9,10,19 29:4,8,16,19,23 30:17,22 31:9,16, 24,24,25 32:9,12,14,18,23 33:2,10, 18 34:5,24 35:10,13,17,22 36:7,12, 23 37:3,9 38:3,24 39:7,10,18 40:1, 10,21 41:2,14,24 42:7,15,19,22 43: 22 44:14 45:7,9,16,23 46:4,18,25 47:8,11 48:1,3,10,16,18 49:2,7,11, 25 50:2,6,12,19 51:1,8,10,17 52: 16,20 53:5,15,22 54:13,22 55:12 56:16 57:8,19 58:13 59:10,14 60: 5 62:16,17,22 63:10,16 65:25,25 66:9,12,15,15,25 67:10,11,15,19, 25 68:13 letter [2] 24:9,16 leverage [1] 64:25 liabilities [1] 27:1 liability [2] 4:18,19 lied [1] 20:23 limit [4] 62:18 66:13,14,23 limitation [3] 3:20 25:13 66:22 limitations [1] 47:10 limited [2] 20:12 66:4 limiting [13] 14:19,23 27:6,10 35:1 38:10 49:4 52:24 55:9 59:24 60:2, 16 65:14 line [10] 3:23 5:13 8:4,6,8 28:23 38: 14,14 48:19 52:12 list [1] 18:15 lists [1] 62:2 literal [1] 13:5 little [6] 20:2 28:25 29:15 43:10 67: K 7,7 KAGAN [11] 14:18,22 22:1,5 28:5 lives [1] 51:2 40:10 43:22 44:14 46:25 55:12 56: look [16] 10:21 11:1 23:7,19,20 24: 16 4 28:11 43:13 44:5 51:15,22 60: Kagan's [1] 23:2 22 67:5,24 68:3,8 keep [5] 5:3,5,8 33:16 44:24 looked [2] 5:6 21:18 keeping [3] 33:15 34:18 64:15 looking [1] 22:7 KENNEDY [5] 47:8,11 48:1,3,10 looks [2] 13:13 23:16 kept [2] 33:17,23 lot [7] 5:20 8:12 17:25 18:11 25:19 key [3] 8:21 15:7 29:3 29:5 57:24 kin [1] 67:9 lower [1] 14:10 kind [2] 45:23 46:11 M kinds [1] 26:1 knowledge [1] 40:24 made [6] 3:11 19:14 26:7 34:5 37: knows [9] 5:23 6:19 32:3 33:19 41: 20 63:25 5,8,10,18,21 main [3] 46:11 58:25 61:1 maintenance [1] 14:4 L majority [1] 64:7 language [14] 3:18 7:15 16:18 20: manner [2] 13:24 38:23 5 21:6 23:19 28:6,11 29:11 38:4,7 many [15] 5:14 14:5 17:11,15 18: 52:11 55:5 65:22 21,21,21,21 19:2 30:12,12 45:2 large [1] 44:9 47:22 51:2 52:21 largely [1] 36:10 MARINELLO [5] 1:3 3:4 39:17 61: last [3] 22:8 47:2 65:20 9 65:9 late [1] 13:14 marriage [1] 16:5 later [1] 34:15 matter [7] 1:13 23:9 46:9,23 47:23 Laughter [5] 18:6,18 27:22 29:7 56:2 68:16 33:21 matters [1] 33:8 law [10] 5:4 10:4 12:4 34:11 40:24 MATTHEW [5] 1:18 2:3,9 3:7 63: 41:20,22 52:12 55:19 64:4 13 lawful [6] 4:5 31:1 37:12 38:12,20 maximally [1] 37:21 46:2 maximum [4] 46:20 55:19 58:21 lawfully [2] 33:17 44:3 59:14 laws [1] 4:15 mean [25] 10:15 12:3,5 13:3 17:25 lead [2] 21:7 57:1 18:9 20:5,17 23:20 32:14,25 38:5, least [3] 28:7 35:9 60:13 6 39:17 40:21 41:13 42:17 43:25 leaves [1] 11:20 55:20 56:6 58:4 59:5 60:1 62:21, leaving [1] 64:17 21 left [2] 22:17,23 meaning [1] 3:18 legal [1] 31:11 means [8] 5:22 15:19 22:2 35:20 legislates [1] 53:23 37:6 38:6 40:24 60:20 legislative [1] 16:7 meant [3] 10:5 19:25 64:2 legitimate [1] 4:2 meetings [1] 13:15 lenity [8] 19:9 21:17 22:2,6,15,25 mens [13] 4:21 5:12 12:20 34:1,7 24:1 30:9 37:3,4,9,10 43:23 62:23 63:2 64: less [4] 6:8 22:21 56:10 65:18 13 mere [1] 39:21 merely [2] 26:21 27:13 might [14] 5:7 18:23 21:2,2,20 22: 25 23:20 24:1 26:7 29:14,20 31: 11,11 67:22 mind [4] 9:2 15:8 21:17 64:21 minimum [2] 23:23,24 minute [1] 7:5 minutes [1] 63:12 misdemeanor [14] 9:5,7,11 17:21 25:16,21 31:4 42:25 45:4 47:13, 24 48:5 60:8 61:17 misdemeanors [6] 3:24 9:19 63: 17,18,21 65:16 mislead [2] 8:16 37:24 misses [1] 13:15 model [1] 16:22 modified [1] 53:17 moment [2] 31:7 34:25 money [4] 40:5 41:6,20,22 Money's [1] 17:19 moreover [1] 18:24 most [4] 19:22 46:23 56:3 57:6 motivate [2] 48:23 49:3 motivated [1] 48:22 move [1] 57:19 much [2] 17:12 18:24 multi-year [1] 9:15 must [3] 43:25 56:19 62:6 myself [2] 41:19 62:21 N name [1] 68:7 narrow [1] 21:24 narrowed [1] 14:15 narrower [1] 48:23 natural [9] 16:5 35:6 36:2 37:1,17 38:21 39:21 43:25 44:4 nearly [1] 30:6 necessarily [4] 4:14 35:12 47:19 57:3 need [6] 4:24 7:1,15 9:21 30:9 34: 8 needs [3] 13:12,23 65:3 never [2] 4:2 68:6 new [1] 47:1 next [4] 3:4 19:20,22 23:21 nexus [8] 20:14,16,22 21:5,7 35:8 52:17 53:25 none [1] 54:9 normal [1] 22:16 normally [2] 3:17 49:9 note [3] 47:21 54:15 55:6 nothing [5] 15:22 37:19 44:11 45: 3 61:20 notice [2] 13:22 21:22 number [11] 12:9 17:16 35:1 44:9 45:17 53:3 55:7,16,19 56:12 63: 21 O object [3] 49:10,19 50:14 objective [1] 35:7 obligation [2] 14:7 68:10 Heritage Reporting Corporation Sheet 4 individuals - obligation 73 Official - Subject to Final Review � obliged [1] 33:17 obliterate [1] 3:22 obliterated [1] 26:3 obstruct [21] 3:12 5:16 15:18 24: 18 35:7 36:2,5,11 37:1,18 38:22 39:22 40:8 43:19 44:1 49:8,14,21 50:22 61:16,18 obstructing [2] 10:6 61:22 obstruction [37] 3:15,20 4:8 6:13, 23 8:14 9:1,13 10:24 15:12,22,23, 25 16:2,4,14,19 26:4 27:6 34:2 43: 1,6,11 46:16 53:13 58:19 59:6 61: 2,3 63:1,7,8,22 64:16 65:19,22 68: 4 obstructive [5] 25:6 35:24 37:23 39:23 66:17 obstructs [2] 6:1 24:17 obtain [6] 31:18 37:7 38:23 43:8 44:12,20 obtaining [1] 4:23 obviated [1] 26:3 obvious [1] 14:19 obviously [3] 14:24 23:6 58:25 occur [1] 62:4 occurred [1] 57:17 occurs [3] 50:10 51:5 53:6 offense [1] 56:3 offenses [5] 25:16,17,18 61:5 64: 2 offer [1] 40:12 offered [2] 29:11 65:24 offering [3] 8:7,9,10 offers [2] 39:2 64:13 officer [5] 15:17 24:11 26:14,16 66:10 officers [7] 8:20 15:15 16:20 27:2 29:20 53:13 66:2 official [1] 24:12 often [2] 11:12 61:3 Okay [3] 32:23 42:20 50:19 old [2] 38:11,12 omission [7] 8:2 25:3,13,17 62:17 66:6,17 omissions [6] 17:7 27:16 60:7,13, 13 65:13 omissions-based [1] 26:10 once [2] 22:15 23:18 one [27] 4:12 7:11,22 9:7,9 14:11 16:8,20,20 17:5 19:7 21:19 23:10 25:15 30:5 31:10 35:20 42:9 49: 20,20 51:17 52:15 59:5 60:9,16, 25 61:1 ones [2] 11:5 43:12 online [1] 11:1 only [15] 4:20 5:11 23:5 31:19 37: 22 38:10 43:22 48:11 50:23 53:12 57:4 59:12 60:20 62:14 64:2 open [1] 6:3 opinion [1] 51:23 opinions [1] 46:10 opportunity [1] 14:25 opposed [1] 45:20 opposing [1] 58:14 opposition [1] 50:7 oral [5] 1:14 2:2,5 3:7 30:20 order [1] 17:17 ordinary [2] 18:22 38:7 oriented [1] 16:11 other [30] 3:21 6:15 7:7,9,12 8:19 10:19 14:2,5 16:8 17:6 23:21 27: 13,25 30:2 31:4 39:15 43:12,15, 19 44:5 45:10 52:21 59:5 60:2,24 63:19 66:1 67:12 68:4 otherwise [4] 5:9 49:22 58:11 65: 4 ought [2] 13:20 23:9 out [26] 5:16 9:12,13 10:2,3 12:21 15:2 17:11,13 28:5,18 33:23 34: 15 37:15 46:13,23 49:12 50:2 52: 8,9 53:23,24 56:25 61:18 62:13 66:1 outset [1] 30:24 outside [1] 8:1 over [2] 9:24 11:21 over-criminalization [1] 46:12 overall [1] 36:1 overlap [1] 47:23 owe [1] 44:16 own [4] 4:24 10:22 66:20,21 45:12,17 51:6 perceived [1] 8:13 percent [5] 46:17,19 47:12 48:4 57:4 perfect [1] 51:22 perfectly [1] 61:6 perhaps [4] 4:18,18 22:25 45:16 perjury [2] 25:23 26:7 permit [2] 41:10,17 person [14] 4:19 12:21 13:11,14 problems [2] 55:11 61:2 Procedure [1] 62:1 proceed [4] 15:23 56:18,19 59:17 proceeded [1] 21:17 proceeding [17] 3:16 6:19 7:1 13: 8 14:5 15:18 20:22 21:1,5,8 29:3 52:18,19 54:1 55:23 67:1,6 proceedings [11] 6:24 15:24 16:2, 6 29:13,14 51:1 53:7 54:24 65:23 68:5 14:2 18:23 32:2 41:4,5,6,8,17,18 process [3] 5:24 6:1 9:15 58:23 product [2] 7:16 9:14 person's [1] 5:7 progress [2] 36:15 38:7 personal [2] 10:22 65:10 prohibited [1] 3:15 pervasive [1] 26:22 proof [1] 37:2 Petitioner [8] 1:4,19 2:4,10 3:8 49: properly [2] 51:25 52:1 4 60:18 63:14 property [2] 58:17,17 Petitioner's [4] 49:6 55:1 59:23 proposal [1] 29:2 61:13 proposed [2] 59:24 61:14 Pettibone [1] 54:10 proposing [2] 49:5 66:13 phrase [5] 23:11,17 54:12,12 57:9 prosecute [3] 41:4,17 55:18 place [2] 23:11 34:19 prosecuted [3] 41:25 42:9 46:9 plausible [1] 10:7 prosecution [4] 5:13 13:20 41:11 55:14 play [1] 19:9 plays [1] 46:13 prosecutor [5] 55:21 56:17,18 64: 9,18 please [2] 3:10 30:23 P pocket [1] 54:7 prosecutorial [1] 57:21 PAGE [2] 2:2 9:10 point [21] 4:20 5:11 8:22 14:12 17: prosecutors [5] 55:18 56:2,23 58: pages [1] 65:11 7,8 19:12 23:15,22 28:18 29:14 1 65:1 pair [2] 37:23 39:15 33:8,24 47:4 49:2 50:23 55:7 57: protection [1] 35:3 parallel [2] 34:13,13 20 60:25 65:5,12 provable [3] 56:4,23 57:9 PARKER [73] 1:20 2:6 30:19,20,22 pointed [3] 28:5 49:12 66:1 prove [9] 43:10,11 45:19,25 56:10 31:14,17 32:8,11,13,16,21,24 33:4, points [3] 33:25 59:22 63:16 57:16 58:23 59:2 61:10 22 34:23 35:12,15,19,23 36:9,18, policy [2] 46:19 55:14 provide [3] 35:2 41:7 44:4 25 37:5,11 38:16 39:6,8,14,20 40: position [5] 5:7 41:3 42:2,8 56:1 provided [2] 48:12 58:7 3,15 41:1,12,23 42:5,11,17,21 43: possibility [1] 60:6 providing [1] 13:14 7,24 44:15 45:15,22 46:3,6,22 47: possible [6] 13:4 46:21 56:11,13 provision [9] 10:17 43:16 45:4 47: 3,9,18 48:2,8,11,17 49:1,24 50:4,8, 59:8 64:20 6 48:25 53:17 62:19 63:7,8 17,21 51:9 53:2 54:4,8 55:12,25 potential [3] 14:13 59:19 60:2 provisions [11] 9:14,23 23:21 31: 56:21 57:13 58:3,22 59:13,16 62: potentially [2] 17:4 62:19 5 43:19 44:6 47:24 53:20 54:23 20 59:1 60:9 power [2] 12:6 68:11 part [6] 6:25 26:13 29:3 30:2 33:14 practice [2] 46:13 67:4 published [2] 46:10,19 48:20 precedent [1] 15:5 punish [3] 17:21 21:20,21 particular [8] 3:22 40:25 47:6 48: preceding [1] 26:19 punishable [1] 9:7 24 55:9 58:8,12 64:5 precisely [3] 35:3 40:16 48:14 punishment [1] 65:18 particularly [2] 58:10 61:17 precluded [1] 55:22 pure [2] 60:6,13 passed [2] 52:13 54:5 predecessor [3] 16:11 29:12 53: purpose [2] 4:22 46:2 passively [1] 27:13 11 push [1] 30:5 pay [5] 11:7,20 14:7 18:23 39:4 predicate [3] 4:13 11:7,8 put [5] 4:6 15:20 17:15 21:23 51: paycheck [1] 17:14 15 predicates [1] 11:5 Paying [14] 4:13,16,19 8:23 32:2 predictable [1] 51:5 puts [1] 17:1 33:13 34:17 35:10,19 37:12 39:12 preferable [1] 67:12 Q 45:25 64:15 66:20 prerogative [1] 52:9 [1] 34:15 qualifies payment [1] 8:25 prerogatives [1] 21:23 qualify [4] 43:6 45:5 60:14 63:22 pays [1] 4:11 presence [2] 5:24 26:22 quest [1] 4:20 penalize [1] 4:3 [1] presumes 3:17 question [14] 4:21 5:12,18 8:23 penalties [4] 10:1 48:13 59:2 61: prevent [1] 61:3 14:22 21:16 23:3 25:11 28:14 42: 19 previously [1] 55:8 2,16,23 55:13 57:10 penalty [7] 9:4 25:23 26:7 43:3 58: principle [1] 52:4 18 59:11,19 questioning [1] 48:19 principles [3] 51:16 52:14,23 questions [2] 13:23 30:15 pending [9] 3:15 6:19 7:1,15 20: prior [1] 14:4 22 21:5,8 54:24 61:22 quick [1] 63:16 probably [1] 44:9 people [15] 9:5 12:3,9 17:15,25 18: problem [6] 5:17 13:7 16:25 18:13 quite [3] 15:4 18:22 20:11 9,14,20 19:3 31:10 37:12 40:14 33:13 63:23 Heritage Reporting Corporation Sheet 5 obliged - quite 74 Official - Subject to Final Review � R raised [1] 10:13 range [1] 4:8 rare [1] 46:7 rather [5] 40:12,14 45:25 57:24,25 rea [13] 4:21 5:12 12:20 34:1,8 37: 3,4,9,10 43:23 62:23 63:2 64:13 reach [2] 52:7 57:23 reaches [1] 57:24 read [12] 9:21 10:7 13:4 20:5,21 22:9,9 23:3,14 38:6 52:20 67:22 readily [3] 56:4,22 57:9 reading [4] 4:6,25 23:4 66:2 real [1] 22:18 realize [1] 33:18 really [13] 7:17 10:23 13:5,7 16:22 22:17 30:10 35:4 55:2 57:23 60: 18 64:2,17 reason [7] 37:22 43:11 55:3,8 60: 17 64:10,17 reasonable [3] 13:24 57:16 61:11 reasonably [3] 46:21 49:20 51:6 reasons [8] 14:15,19 15:7 25:15 44:11 53:3 66:7 67:13 REBUTTAL [3] 2:8 30:16 63:13 recalibrate [1] 23:12 receiving [1] 27:13 recent [1] 57:6 recodification [1] 53:19 recodified [2] 16:15 53:16 recordkeeping [1] 14:6 records [11] 13:12 14:4 33:15,16 34:18 44:24,25 45:2 60:24 61:10 64:15 refer [1] 50:9 referencing [1] 62:12 reforming [1] 9:15 refund [1] 44:17 reg [1] 33:2 regulations [1] 18:21 remaining [2] 59:21 63:12 remains [1] 4:21 remarkable [1] 45:8 remember [4] 11:13 38:18 49:6 57:14 render [1] 56:22 repeat [1] 62:21 repeatedly [4] 48:2 53:18 62:25 65:8 repeating [1] 41:19 report [5] 39:13 40:2,2,6 44:2 reported [3] 11:3 39:24,25 represent [1] 46:14 require [3] 43:18,18,20 required [4] 5:9 11:24 44:3 64:18 requirement [8] 6:20 12:13 34:1,8 47:6 62:23 64:13 67:6 requirements [1] 63:2 requires [3] 5:4 52:17 63:24 requiring [1] 53:25 rescue [1] 65:16 rescuing [2] 58:16,17 reserve [1] 30:15 respect [1] 23:2 respectfully [1] 49:24 respond [1] 13:24 Respondent [4] 1:7,22 2:7 30:21 responding [1] 18:7 response [2] 21:15 28:13 responses [2] 8:18 25:12 responsibility [1] 58:5 rest [1] 30:15 restraint [1] 52:6 restriction [1] 52:24 result [2] 33:23 46:9 return [3] 8:24 11:6 44:7 returns [2] 6:6 44:11 reus [2] 34:9,10 reuses [1] 5:14 Revenue [5] 43:17 47:25 51:4 53: self-report [1] 62:6 self-reporting [1] 48:15 Senate [1] 9:17 sense [8] 8:22,25 10:5 13:5 17:18 25:14 59:8 65:15 specter [1] 10:13 Spies [1] 60:11 spirit [1] 26:16 staggering [1] 13:5 standard [1] 66:4 standardless [1] 58:11 start [5] 10:24 17:10 67:5,20 68:8 started [3] 7:17 51:13,14 state [1] 55:16 statement [6] 6:18 25:19,22 26:5 sentence [1] 14:11 separates [1] 63:3 sequential [1] 62:2 series [1] 9:24 serious [2] 46:24 56:3 29:5 36:19 services [2] 34:6,11 set [1] 25:9 statements [4] 8:19 20:25 26:2 several [5] 6:14 15:25 25:16 30:25 65:17 40:22 STATES [9] 1:1,6,15 3:5 41:16 42: 2,8 53:14 54:25 share [1] 13:3 shelf [1] 16:18 statute [57] 3:14 6:21,23 7:16 8:19, 21 9:3,21 10:7 13:4,20 15:3,10 16: shelters [1] 31:11 16,20 19:17,17 20:3,7 21:8,18 22: 8 61:25 shovel [1] 11:16 3,11,12 23:14 24:5 27:8 29:12 30: reverse [1] 66:8 shoveler [2] 31:25 32:6 7 31:2,4 32:17 34:2 35:2 38:4 40: review [1] 10:22 shoveling [1] 32:10 18,20 41:4,10,16 42:1,23 47:15 revision [1] 7:16 show [1] 36:3 48:6 51:21,22 52:8,15 53:11 54:6, rigorous [2] 62:22 63:1 showed [1] 25:18 18,20 57:22,23 58:12 60:7 67:16 risk [1] 4:6 shown [1] 52:17 ROBERT [3] 1:20 2:6 30:20 side [3] 45:10 58:14 63:19 statutes [8] 15:23,25 34:3 58:6 65: 15,22 68:5,6 ROBERTS [16] 3:3 10:9,12 17:24 sides [1] 22:18 18:4,9 30:17 45:9,16,23 46:4,18 significance [1] 20:13 statutory [4] 22:16 23:6,18 59:2 48:18 57:8 63:10 68:13 significant [1] 12:9 step [1] 23:5 role [2] 19:9 31:12 significantly [1] 14:15 steps [2] 11:16 23:19 routine [2] 50:11 51:5 similar [2] 34:6 60:11 still [2] 46:18,19 rule [4] 23:25 27:23 28:15 67:4 simply [2] 34:16 59:17 strange [3] 54:17 55:4 62:9 rules [1] 64:19 simultaneously [1] 3:21 stretch [1] 17:2 since [1] 65:6 strong [2] 23:8,16 S single [1] 65:5 structure [1] 15:14 safeguards [1] 64:12 sitting [1] 45:1 structured [1] 37:13 same [11] 13:8,16 15:16,19 21:6 situation [5] 4:10 13:16 37:25 45: subjective [1] 40:4 26:16 34:19 44:23 52:23,23,24 18 57:25 submission [1] 29:9 Sarbanes-Oxley [2] 6:25 7:18 six [2] 15:11 16:16 submitted [2] 68:14,16 sat [1] 30:3 slow [2] 36:15 38:7 subpoena [1] 68:11 satisfy [1] 57:15 small [3] 44:16,17 45:17 subsection [1] 25:25 save [1] 19:21 snow [4] 11:16 31:25 32:5,10 substance [1] 67:9 Saving [1] 19:19 Solicitor [1] 1:20 substantial [5] 47:23 63:21 64:7 saw [2] 23:13 33:2 65:9,10 solve [1] 55:11 saying [9] 29:24 38:12 41:2,16 47: solves [1] 13:7 substantive [2] 16:17 53:20 1 50:1,5 52:22 56:17 somebody [6] 11:16 13:10 33:11 subsumed [1] 42:12 says [10] 5:3 6:10 7:1 19:18 21:6 39:2,2 64:3 subtitle [1] 62:1 26:4 35:8 37:19 39:3 54:25 someone [4] 4:11,16 13:22 66:20 sufficient [1] 39:19 scenario [1] 13:21 sometimes [6] 7:5 33:13 34:16,17 suggest [8] 10:10 22:25 23:4,22 schedule [2] 50:11 51:5 44:16,17 48:20,21 54:11 63:19 scope [4] 32:17,20 60:7 62:19 son's [1] 32:10 suggested [3] 31:1,3 60:17 score [1] 49:7 sorry [2] 10:11 66:11 suggesting [5] 27:12 29:19 54:22 scrambled [1] 13:13 66:16 67:16 sort [4] 16:5 19:12 22:7 25:5 search [1] 14:19 sorts [3] 13:8 40:17 57:1 suggestion [1] 65:2 second [6] 5:18 15:16 52:4,5 61:1 SOTOMAYOR [29] 5:17,20 7:4,7, suggests [2] 21:24 26:14 64:12 11,19 8:8,11 24:2,7,14,24 25:2,8 summary [1] 57:12 section [13] 5:22 6:22 25:24,24 43: 26:14 27:11 28:1,4,9,19 29:4,8 31: sun [1] 20:1 14 45:5 53:9 54:18,23 56:7,10,20 9,16 40:1 60:5 62:17 66:1,15 Suppose [5] 11:15 13:18 47:8,11 59:17 58:22 sounds [2] 6:15 51:18 see [5] 6:6 10:24 18:11 38:10 68:7 source [1] 29:20 supposed [1] 33:11 seeing [1] 15:4 speaks [2] 16:8 26:21 SUPREME [2] 1:1,14 seek [1] 46:23 specific [9] 31:18 37:7 40:4,23,23 surprising [1] 47:20 seem [2] 18:22 22:5 42:14 44:12 49:11 52:17 swallow [1] 3:20 seems [4] 7:22 24:20 33:12 34:12 specifically [6] 9:16 36:4 48:12 swallows [1] 31:4 seized [2] 58:16,17 50:22 53:12 54:20 sweep [1] 13:6 self [1] 48:16 specified [1] 62:10 sweeping [1] 8:12 Heritage Reporting Corporation Sheet 6 raised - sweeping 75 Official - Subject to Final Review � system [1] 48:15 trying [3] 9:20 23:10 28:10 turns [3] 9:12,12 10:3 two [5] 59:1,12,21 60:20 67:21 two-part [2] 15:14 16:19 two-year [1] 58:18 types [2] 61:24 62:3 typically [1] 65:23 way [19] 5:25 6:7 7:14 10:7 16:8 17:6 19:12 22:9,10 24:14 26:13 27:8 35:23 37:14 51:20 61:16,18 table [1] 17:3 65:14 67:2 tack [3] 42:25 58:18 59:5 ways [1] 66:1 tacking [1] 10:16 web [1] 48:13 talked [1] 14:24 Wednesday [1] 1:11 tax [35] 3:12,13 4:14,18,18 5:7 6:6, week [1] 11:19 U 16 9:15 10:4,19 14:9 17:8 23:12 weeks [1] 11:18 25:14 26:25 42:24 43:1,5,5,7,9,10 U.S [2] 24:11 45:19 whatever [2] 12:14 32:3 44:7,10,16 46:12,17 47:12 48:5 ubiquitous [5] 49:17,23 50:16 54: Whereupon [1] 68:15 50:10 60:11 61:8,11 64:6 3 57:2 whether [8] 6:3 9:18 19:4 36:13 taxation [1] 48:15 unable [1] 61:10 44:21 55:17,20 56:5 taxes [13] 5:10,25 8:23 11:7 14:7 uncertain [1] 58:12 who's [2] 12:21 32:2 25:20 27:14 38:13,13 49:18 61:16 unconstitutional [1] 19:16 whoever [1] 24:7 62:8,8 under [29] 4:14,24 5:4,21 6:12 7: whole [2] 4:8 9:21 taxpayer [2] 4:11 5:3 25 10:17 14:13 20:1 25:16,22 26: will [13] 17:13 19:24 25:14,14 30: taxpayers [2] 38:12 62:6 6 32:1 40:18,19 41:3 42:1 45:5,6 15 41:7 43:15 51:2 52:11,12 61:2, tendency [8] 35:7 36:2 37:1,18 38: 48:6 52:2 55:23 56:18,19 59:12, 3 65:4 21 39:21 44:1,4 12,17 64:18 67:2 willful [7] 43:20,20 45:4 63:18 64: term [7] 35:9 36:8,10,11 57:11,14 understand [10] 6:5 7:14 13:25 1,6 65:17 68:6 22:14 25:10 29:13 39:11 49:16 52: willfully [2] 43:8 45:21 terribly [1] 45:18 11 57:12 win [5] 28:19,19,20,21,21 test [1] 4:15 understanding [6] 20:20 48:23 wind [1] 34:19 text [3] 15:3 55:10 60:1 50:9 55:25 57:4 66:15 withheld [1] 17:19 themselves [1] 37:18 understood [2] 10:5 53:6 withholding [3] 17:13,17 44:2 theory [2] 6:12 65:13 ungodly [2] 22:12 23:16 within [6] 28:15 31:2 32:17,20 47: There's [19] 4:7 6:16 10:25 13:19, UNITED [9] 1:1,6,15 3:5 41:16 42: 14 55:22 21 15:22 16:7 22:18 27:1,2 29:3 2,8 53:14 54:25 without [2] 3:19 51:3 35:9 39:20 43:10 44:19 45:3 47:5 universal [4] 49:17,23 50:16 54:3 witnesses [1] 53:13 55:2 65:2 unlawful [17] 4:23 17:18 19:16 31: wonder [2] 13:6 34:18 therein [1] 53:15 18,21 32:5 37:8 38:1,22,23 40:25 wondered [1] 11:12 they've [1] 18:1 41:8,9 44:12,20 46:4 64:10 word [10] 7:20 16:23 42:4 45:11 thin [3] 15:2 38:15,17 unless [8] 25:21,22 29:3 41:5,9,17 52:16,20,20 67:16,17,20 thinking [3] 6:5 18:19 31:11 42:10 61:21 worded [1] 52:15 third [3] 36:6 52:5 65:2 unlike [2] 50:25 53:7 wording [1] 53:17 though [6] 15:2 26:13 33:8 35:11 unpunished [1] 65:4 words [7] 21:2,9 23:3 40:22 49:16 52:19 57:18 unusual [1] 15:22 50:8 53:25 threat [3] 24:8,15 25:4 up [11] 3:20 8:12 13:11,13 34:19 work [8] 7:21,25 8:14,14 36:16,17, threatening [3] 24:9,16 25:5 37:23 58:14 59:6 62:18 64:17 66: 20 67:16 three [6] 11:18 18:1 35:4 51:16 59: 3 working [1] 67:20 11 67:21 upset [1] 45:1 world [3] 52:10,11 64:13 three-year [1] 58:21 worry [2] 34:8 51:24 V threshold [1] 33:1 worse [1] 57:25 vague [1] 58:11 tiebreaker [1] 22:25 worth [1] 44:18 [1] title [6] 7:21 20:9 21:10 24:19 52: vagueness 34:22 write [2] 6:19 19:17 variation [1] 38:25 16 62:13 wrongdoing [1] 65:4 [3] verbs 15:16 49:8 50:13 together [2] 15:21 23:10 wrote [1] 19:18 versus [1] 3:4 tolerate [1] 13:20 view [2] 9:12 12:6 Y took [3] 10:21 20:5 65:9 [2] 10:4 64:4 violates [4] [1] year 9:8 11:21 47:2 57:7 tools 22:16 violation [3] 17:3 39:4 45:4 years [7] 15:11,11 16:16 30:6 54: top [3] 14:2 15:21 67:21 violations [3] 47:13 48:5 64:7 totally [1] 20:13 17 59:11,12 violent [1] 25:5 yourself [1] 31:20 toward [1] 16:12 virtually [1] 20:8 towards [1] 24:20 [1] traditionally 52:6 W translate [1] 57:3 W-4 [1] 17:11 treated [1] 63:9 wager [1] 44:8 trial [2] 64:22,23 wait [1] 7:4 trivial [2] 18:22 57:24 waiting [1] 32:18 trouble [2] 33:12,23 wanted [6] 10:1 13:25 16:19 17:5, troubles [1] 38:5 21 30:2 true [4] 17:16 40:15 42:10 50:18 warning [1] 52:10 try [2] 15:1 60:8 Washington [3] 1:10,18,21 T Heritage Reporting Corporation Sheet 7 system - yourself