Archive | statutory interpretation

Wednesday, December 14th, 2022

Under 18 U.S.C. § 1591, the term “commercial sex act” — defined as “any sex act, on account of which anything of value is given to or received by any person,” id. § 1591(e)(3) — doesn’t require that the “[]thing of value” have a monetary value; it can be something “intangible” that has a subjective value to the person receiving it. United States v. Raniere, Nos. 20-3520-cr(L), 20-3789-cr(Con), __ F.4th ____, 2022 WL 17543156 (2d Cir. Dec. 9, 2022) (C.J.J.’s Calabresi, Cabranes, and Sullivan).

This case concerns the meaning of “commercial sex act,” in subdivision (e)(3) of 18 U.S.C. § 1591, titled “Sex trafficking of children or by force, fraud, or coercion.”  A “commercial sex act” is defined as “any sex act, on account of which anything of value is given to or received by any person.” 18 U.S.C. § 1591(e)(3).

The Appellant argued that the phrase “anything of value” must mean “‘economic benefit[ ].’” The Circuit holds, however, that the phrase isn’t restricted to monetary or financial benefits but can include “intangibles,” such as maintaining or improving a person’s position within the hierarchy of a group. Raniere, 2022 WL 17543156 at *4-*8. The focus is on the value that the recipient “subjectively attaches to what is sought to be received.” Id. at *5.


Appellant Keith Raniere was the leader of an executive coaching and self-help organization called NXIVM that he started …

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Categories: jury instructions, sex trafficking, statutory interpretation, sufficiency

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Monday, August 27th, 2018

Second Circuit Limits Scope of Conspiracy Liability Under the FCPA

Today the Second Circuit issued an opinion holding that a non-U.S. citizen, employed by a foreign company, could not be prosecuted for conspiracy to violate the Foreign Corrupt Practices Act (FCPA). See United States v. Hoskins, No. 16-1010 (2d Cir. 2018) (Katzmann, Pooler, Lynch). The opinion is a statutory interpretation tour de force. Of course, the case does not necessarily present a factual scenario that attorneys will often encounter while representing indigent defendants. However, Judge Pooler’s analysis and methodology provide an excellent template for for those arguing for limitations on the scope of conspiracy liability in other contexts. The opinion is available here.

The defendant in Hoskins does not fall within any of the categories of persons who are subject to prosecution under the FCPA. This fact did not, in itself, render him immune from prosecution for conspiracy to violate the statute. As a general principle, “[a]  person …

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Categories: conspiracy, FCPA, statutory construction, statutory interpretation

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Tuesday, July 31st, 2018

Second Circuit Narrowly Construes Appellate Waiver and Holds That Embezzlement Is Not a Continuing Offense

In a short and interesting opinion, available here, the Second Circuit held today that (1) a defendant did not waive her right to appeal a restitution order on the ground that it covered conduct outside the statute of limitations period, and (2) that violations of 18 U.S.C. § 641 (embezzlement of government property) are not continuing offenses, rendering the defendant liable for funds embezzled outside the limitations period. See United States v. Green, No. 16-3044 (2d Cir. 2018) (Cabranes, Carney, Goldberg (Ct. Intl. Trade )) (appeal from W.D.N.Y.). The second of these holdings, concerning the scope of  § 641, creates a circuit split.

The defendant in Green was charged under § 641 for drawing money out of a joint bank account between 2009 and 2011 in amounts similar to those of VA payments to her deceased mother that went into the account. She pled guilty, and …

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Categories: appeal waiver, forfeiture, property, statute of limitations, statutory construction, statutory interpretation

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Thursday, March 22nd, 2018

Supreme Court Narrowly Construes IRS Obstruction Provision

This week the Supreme Court held that, to establish a violation of the IRS’s obstruction provision, 26 U.S.C. § 7212(a), the government must prove that the defendant was aware of a pending, “targeted governmental tax-related proceedings, such as a particular investigation or audit.” Sentencing Resource Counsel Sissy Phleger has the details:

In Marinello v. United States, the Supreme Court narrowly construed the obstruction provision in the Internal Revenue Code, 26 U.S.C. § 7212(a), known as the Omnibus Clause. That provision criminalizes “corruptly or by force or threats of force . . . obstruct[ing] or imped[ing], or endeavor[ing] to obstruct or impede, the due administration of [the Internal Revenue Code].” Justice Breyer wrote the opinion, joined by Roberts, Kennedy, Ginsburg, Sotomayor, Kagan, and Gorsuch. Thomas dissented, joined by Alito.

Relying on prior precedents interpreting other obstruction provisions, the Court narrowly construed the provision to require: first, that there be “a …

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Categories: statutory construction, statutory interpretation, tax evasion

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Friday, October 14th, 2016

Second Circuit rejects Sixth Circuit’s Interpretation of 26 U.S. C. § 7212(a)’s “Omnibus Clause”

The Second Circuit decided the case of United States v. Marinello (Docket No. 15-2224) on Friday. You can see the 44-page decision here.  The case involved small businessman, Carlo Marinello, who did not keep corporate records or file personal or corporate income tax returns for nearly two decades. Marinello was convicted by a jury in 2014 in the Western District of New York on nine counts of tax-related offenses. In his appeal, he raised three grounds. I’ll review two of them here.  First, he challenged his conviction under the “omnibus clause” of 18 U.S.C. § 7212(a), which imposes criminal liability on one who “in any other way corruptly . . . obstructs or impedes, or endeavors to obstruct or impede, the due administration of this title.” In making his argument, Marinello relied on the Sixth Circuit case, United States v. Kassouf, 144 F.3d 952 (6th Cir. 1998), which …

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Categories: knowledge, overbreadth, statutory construction, statutory interpretation, tax evasion

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Friday, June 17th, 2016

Second Circuit Updates – June 17, 2016

One major decision out of the Second Circuit today, United States v. Rowland (Docket 15-985). It’s a good read for those interested in statutory construction and interpretation. A brief overview of the facts: The defendant, John Rowland was once governor of Connecticut. After being released from federal custody following a 2004 conviction for corruption and a kickback scandal, Rowland attempted to get back in the political game by offering his consulting services to Connecticut politicians running for federal office. When the politicians, wanting his advice, but not an association with him, raised their concerns about the optics, Rowland suggested that their respective companies and non-profits hire him as a consultant. As the government alleged, though, in reality he would offer advice to their campaigns.

One politician declined his offered, going so far as to rip up the proposed contract Rowland provided that would have him work for the politician’s non-profit. …

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Categories: fraud, statutory construction, statutory interpretation

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Sunday, December 7th, 2008

Who’s Your Daddy?

United States v. Connolly, No. 06-3139-cr (2d Cir. December 4, 2008) (Straub, Raggi, CJJ, Sessions, DJ)

Odell Connolly was born in Panama on April 21, 1968. His mother was a local, but his father was a United States citizen. They were not married. The father had been drafted into the United States Army in 1966 and was on active duty in the Panama Canal Zone until eighteen days before Connolly was born. After that, he was transferred to the Ready Reserves; he performed no further duty or services for the army, and received no pay or other form of government compensation. Although the army had the right to recall him to active duty, it never did so, and he was discharged in 1972.

Connolly legally entered the United States in 1993, but was deported in 1998 after a drug conviction, without asserting a claim to U.S. citizenship. He reentered illegally …

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Categories: statutory interpretation, Uncategorized

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Friday, August 29th, 2008

Toll Free

United States v. Kozeny, No. 07-3107-cr (2d Cir. August 29, 2008) (Sack, Katzmann, Hall, CJJ)

In 2002 and 2003, the government believed that Frederic Bourke was involved in a scheme to bribe senior government officials in Azerbaijan in connection with the privatization of that nation’s state-run oil company. During the investigation, the government made treaty requests for assistance to Switzerland and the Netherlands. And, months later, on July 21, 2003, it applied for an order under 18 U.S.C. § 3292 tolling the statute of limitations based on those requests. By this time, however, more than five years had elapsed since some of Bourke’s offenses had been completed.

Despite this, on July 22, 2003, a district judge suspended the statute of limitations for all of the offenses under investigation. Consistent with the statute, the order provided that the suspensions would begin on the date that the treaty requests had been made, …

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Categories: statute of limitations, statutory interpretation, Uncategorized

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