Materiality and Corruptly in Tax Obstruction under Section 7212(a) (9/10/11)

In United States v. Bonds, ___ F.Supp. 2d ___, 2011 U.S. Dist. LEXIS 96051 (ND CA 2011), the jury had found Barry Bonds guilty of obstruction of justice in violation of the so-called Omnibus Clause of 18 U.S.C. section 1503. The court rejected Bonds' Rule 29 for acquittal and Rule 33 for new trial. The Court's discussion is interesting for tax crime afficionados because the tax obstruction statute, section 7212(a), has its roots in the general obstruction statutes in 18 U.S.C., including specifically section 1503(a)'s Omnibus Clause. See John A. Townsend, Tax Obstruction Crimes: Is Making the IRS's Job Harder Enough, 9 Hous. Bus. & Tax. L.J. 255, 277-314 (2009), here.

The key elements of 1503's Omnibus Clause for present purposes are: (i) the defendant must endeavor (ii) corruptly to (iii) obstruct or impede the due administration of justice. The Court has the obligatory discussion of the leading case, United States v. Aguilar, 515 U.S. 593, 598 (1995), which is fascinating but need not detain us here.
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My Lawyer Did Not Advise Me of the Consequences of My Perjuring Myself in My Defense

Clecker v. United States (11th Cir. 2011) (Unpublished) is a good reminder of the dangers of a defendant testifying in a criminal case. Cleckler was charged with "conspiracy to defraud the United States, in violation of 18 U.S.C. §§ 2(b) and 371 (Count 1), and corrupt or forcible interference with the administration of the internal revenue laws, in violation of 26 U.S.C. § 7212(a) and 18 U.S.C. § 2 (Count 2)." The Government presented a number of witnesses and, apparently, Cleckler's counsel advised him that he had the right not take the stand but, given the evidence, he was at high risk if he did not. If he took the stand, the jury verdict would almost certainly turn on his credibility. The jury convicted, apparently because the jury did not find Cleckler credible. At sentencing, the judge found that Clecker perjured himself and imposed the two level obstruction of justice enhancement U.S.S.G. § 3C1.1.

Cleckler sought in a Section 2555 proceeding to vacate the sentence based on ineffective assistance of counsel -- to wit, that his trial attorney had not warned or properly warned Cleckler about the potential consequences of lying as respects exposure to the sentencing enhancement for obstruction. The district court dismissed the claim but issued a certificate of appealability on the issue of "[w]whether the district court erred by denying Cleckler's claim that his attorney failed to advise him of the consequences of testifying on his own behalf at trial." On appeal, the Eleventh Circuit affirmed in an unpublished opinion. While the opinion itself may not be worthy of publication, the circumstances are worthy of practitioners' attention.  A good, quick read.

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The Limits of Literal Truth as Defense to Perjury (or Even 18 USC 1001)

Bronston v. United States, 409 U.S. 352 (1973) is frequently cited for the proposition that literal truth is a defense to a charge of perjury. Actually, Bronston involved an unresponsive literal truth to a question not asked with the answer intended to mislead (or at least avoid the question that was not asked). Usually, the battle ground is not the unresponsive answer where the defendant raises Bronston as a defense to perjury but the responsive answer that the defendant argues is literally true. Consider this example based on United States v. Thomas, 612 F.3d 1107 (9th Cir. 2010) involving a charge of perjury from a Q&A in a grand jury room.

Q. Did the drug dealer give you the drugs?

A. No.

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