                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



 UNITED STATES OF AMERICA
            v.                                          Criminal Action No. 15-44 (JEB)
 JAMAL A. ADAMS, a/k/a ISHMEAL
 HERU-BEY,

          Defendant.



                                  MEMORANDUM OPINION

       Defendant Ishmeal Heru-Bey, formerly known as Jamal Adams, was charged with three

counts relating to obstructing the internal-revenue laws and tax evasion. A jury ultimately

convicted him of one and acquitted him of two others. While his case was on appeal to the D.C.

Circuit, the Supreme Court decided Marinello v. United States, 138 S. Ct. 1101 (2018), which the

Government conceded rendered the jury instructions at Heru-Bey’s trial plainly erroneous. The

Circuit thus remanded to this Court to determine what effect on his conviction, if any, that error

should have. This Court now concludes that it requires vacatur of the conviction and a new trial.

I.     Background

       As relevant here, Heru-Bey was convicted in 2015 of one count of corruptly endeavoring

to obstruct and impede the due administration of the internal-revenue laws in violation of 26

U.S.C. § 7212(a). The Government advanced three factual bases for such obstruction: first,

Defendant submitted W-4 forms in 2006, 2008, 2009, and 2010 falsely claiming that he was

exempt from federal-income-tax withholding; second, he filed a bankruptcy petition in 2010 in

which he did not list the IRS as a creditor even though he had tax debts; and third, he filed tax

returns in 2011 and 2014 in which he falsely claimed unreimbursed employee expenses. See

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ECF No. 77 (Transcript 5) at 18. The defense’s theory, although not fully responsive to all of

these allegations, was that Heru-Bey’s real-estate losses covered the tax deficiency, meaning that

no tax was due. Id. at 44–56. In finding him guilty, the jury rendered only a general verdict and

did not specify on which of the Government’s three theories it had relied.

       Defendant appealed that conviction to the D.C. Circuit. See ECF No. 62 (Notice of

Appeal) at ECF p. 12. While that appeal was pending, the Supreme Court issued Marinello,

which further specified the requirements for a conviction under § 7212(a). It held that the

Government must show a “relationship in time, causation, or logic” — viz., a nexus — between a

defendant’s conduct and “a particular administrative proceeding, such as an investigation, an

audit, or other targeted administrative action.” Marinello, 138 S. Ct. at 1109. That is, a

defendant must impede not the day-to-day administration of the tax code, but rather some

specific investigation or activity, and there must be a relationship between his obstructive act and

the Government’s particularized proceeding.

       The Court of Appeals thereafter sua sponte ordered supplemental briefing “addressing the

effect, if any, of the [Marinello decision]” on Defendant’s case. See Briefing Order, United

States v. Adams, No. 16-3021 (D.C. Cir. Mar. 27, 2018). In its brief, the Government conceded

that the jury instructions — which did not contain the nexus requirement or detail the nature of

the requisite IRS proceeding — were “‘error,’ and that error [was] ‘plain’ at the time of appellate

consideration.” Appellee Supp. Br. at 5 (D.C. Cir. May 8, 2018) (citation omitted).

       Rather than decide whether that error required reversal, the Circuit “remanded [to this

Court] to address in the first instance the effect, if any,” Marinello has “on this case.” Remand

Order (D.C. Cir. June 22, 2018). It further instructed that, because the Government had

conceded “that the jury instructions at trial were erroneous under Marinello, and that this error



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was plain,” it only “remains to be determined whether this error satisfies the final two prongs of

plain error review” — namely, “whether the error ‘affect[s] substantial rights’ and ‘seriously

affect[s] the fairness, integrity, or public reputation of judicial proceedings.’” Id. (citations

omitted).

        Having obtained additional briefing on remand, see ECF Nos. 88 (Gov’t Brief), 90 (Def.

Response), 92 (Gov’t Reply), this Court, accordingly, now addresses those questions.

II.     Analysis

        Objections not timely raised in the district court — such as this one — are reviewed for

plain error. See United States v. Lawrence, 662 F. 3d 551, 556 (D.C. Cir. 2011). That standard

requires (1) error, (2) that must be plain, (3) that must affect a defendant’s substantial rights, and

(4) that must seriously affect the fairness, integrity, or public reputation of the judicial

proceedings. See United States v. Olano, 507 U.S. 725, 732 (1993). Because the Government

has already conceded that the first two prongs are satisfied here, the Court evaluates only the

third and fourth.

        A. Substantial Right

        For an error to impinge on a substantial right, a defendant must demonstrate a

“reasonable probability that the error affected the outcome of the trial.” United States v. Marcus,

560 U.S. 258, 262 (2010). This is the same standard used to assess prejudice in the ineffective-

assistance-of-counsel context. See United States v. Eli, 379 F.3d 1016, 1019 (D.C. Cir. 2004). In

that context, a reasonable probability is one “sufficient to undermine confidence in the outcome.”

Strickland v. Washington, 466 U.S. 668, 694 (1984). The “undermines confidence” standard “is

not a stringent one.” Hull v. Kyler, 190 F.3d 88, 110 (3d Cir. 1999); see also United States v.

Gaviria, 116 F.3d 1498, 1514 (D.C. Cir. 1997) (“Strickland requires reasonable probability, not



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certainty.”). Indeed, “[i]t is less demanding than the preponderance standard.” Hull, 190 F.3d at

110.

       Here, Heru-Bey meets that lenient standard. The Court must determine whether there is a

reasonable probability that, had the jury been instructed on Marinello’s particularized-proceeding

and nexus requirements, the outcome would have been different. While the kind of specific IRS

proceedings that would satisfy Marinello are present in this case, evidence is lacking in the trial

record to establish — under any of the Government’s three theories of guilt — a relationship

between those proceedings and any of Defendant’s obstructive actions.

       At trial, IRS records custodian Kristy Morgan testified about Service proceedings

involving Heru-Bey. See ECF No. 73 (Transcript 1) at 147–207; ECF No. 74 (Transcript 2) at

34–45. The agency first sent him a letter in December 2006, warning him that he had flouted his

obligation to file a tax return in 2005. See 1 Tr. at 151; 2 Tr. at 34–35. In June 2008, it sent him

a second letter regarding his failure to file returns in both 2005 and 2006. See 1 Tr. at 159–60.

Weeks later, the Government notified Heru-Bey that it intended to prepare for him substitutes for

return (SFRs) for 2005 and 2006; it completed those in July 2008. Id. at 157–160. The IRS

finally issued in June 2009 statutory notices of deficiency regarding tax years 2005 and 2006,

and in May 2010, it promulgated a notice indicating that it intended to levy Defendant’s wages to

collect his unpaid taxes. Id. at 155, 160. From December 2010 through June 2015, the Service

garnished Heru-Bey’s wages. Id. at 155–56.

       There is little doubt that these IRS actions constitute the kind of “particular

administrative proceeding, such as an investigation, an audit, or other targeted administrative

action” contemplated by Marinello. See 138 S. Ct. at 1109. But that is not enough. The

Government must also demonstrate that a nexus exists between those proceedings and any of



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Defendant’s actions in furtherance of the Government’s three theories of obstruction. This it has

not done.

       The Government first maintains that Heru-Bey obstructed the administration of the tax

code by filing in 2006, 2008, 2009, and 2010 false W-4 forms claiming he was exempt from

federal-income-tax withholding. See Gov’t Br. at 7; see also 1 Tr. at 112. The prosecution

elaborates that these forms are related to the IRS investigation because Defendant filed them

after receiving notices regarding efforts to assess his taxes. See Gov’t Br. at 7. The Court cannot

agree. W-4s govern an employee’s withholding for an upcoming year. Filing false forms would

therefore have some prospective effect but would not impair an existing IRS investigation into

tax due for past years. In other words, even assuming Heru-Bey knew of the IRS’s investigative

efforts, it is difficult to conclude that continuing to file false W-4s was an effort to thwart them.

To be sure, doing so may well obstruct the IRS’s day-to-day efforts to administer the tax code,

but “the scope of [§ 7212] . . . does not include routine . . . work carried out in the ordinary

course by the IRS.” 138 S. Ct. at 1110. Indeed, the Supreme Court specifically reasoned that

§ 7212 did not reach quotidian IRS activities in part because things like “willful failure to furnish

a required statement to employees,” “failure to keep required records,” and “misrepresenting the

number of exemptions to which an employee is entitled on IRS Form W-4” were criminalized

with lesser penalties in separate portions of the code. Id. at 1107.

       The Government next contends that Defendant engaged in obstruction when he filed in

2010 a bankruptcy petition on which he did not include the IRS as a creditor. See Gov’t Br. at 7;

see also Gov’t Reply at 3. “Because the IRS was not” so listed, “it was not given notice of the

bankruptcy proceeding and therefore was left unaware of public filings in which [D]efendant

detailed his income and assets.” Gov’t Br. at 7. As an initial matter, given that these IRS



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liabilities cannot be discharged in bankruptcy, see ECF No. 75 (Transcript 3) at 32, the

Government does not make clear how failing to list the IRS as a creditor actually impeded its

collection efforts. Even had it adduced evidence of such imposition, the Government likewise

has not even attempted to show there was evidence at trial that Heru-Bey’s intent in filing the

bankruptcy petition was to obstruct. Cf. Marinello, 138 S. Ct. at 1108 (reasoning that § 7212’s

requirement that a defendant act “corruptly” is indistinguishable from his acting “willfully”). It

is not clear, moreover, that — even if the Government had made a showing that the Service’s

efforts were somehow impeded — garnishment of Heru-Bey’s wages are the kinds of

particularized activities contemplated by Marinello. At the very least, garnishment is an ongoing

remedy to a tax violation found by the service in a liability-phase proceeding such as “an

investigation, an audit, or other targeted administrative action.” Id. at 1109. And garnishment

was all that was left at that point. The Government has acknowledged that “[t]he IRS had

already formally assessed taxes and penalties against [D]efendant and began garnishing his

wages in an attempt to collect his unpaid taxes when” he filed his bankruptcy petition in June

2010. See Appellee Supp. Br. at 13 (D.C. Cir. May 10, 2018). In other words, there was no

longer a pending investigation for Heru-Bey to obstruct.

       The Government’s final theory was that Defendant’s false claim of unreimbursed

employee expenses on his tax returns for the years 2011 and 2014 understated his tax liability

and obstructed the IRS’s administration of the tax code. See Gov’t Br. at 7. Specifically, it

maintains that filing returns that understate tax liability reflects a “change in tactics” from

Defendant’s previous practice of filing false W-4s and that the shift reflects a strategic intent to

“obstruct the IRS.” Id. The Court is not persuaded. To begin, the Government never contends

that Heru-Bey was under IRS investigation for tax years 2011 and 2014. It offers no reason,



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moreover, that falsifying a return for those years would have obstructed an investigation into his

2005 and 2006 taxes. If the Government intends to suggest that the 2011 and 2014 returns were

obstructive, it must be claiming not obstruction of that specific investigation but obstruction of

the IRS’s collection activities. Again, Marinello does not countenance such a broad

understanding of § 7212. See 138 S. Ct. at 1107. The Court there specifically rejected as

overbroad the argument the Government now presses — namely, it reasoned that § 7212 is

“not . . . a ‘catchall’ for every violation that interferes with what the Government describes as the

‘continuous, ubiquitous, and universally known’ administration of the Internal Revenue Code.”

Id. (citation omitted).

        The Court notes, finally, that the Government declined a special unanimity instruction at

trial. See 5 Tr. at 84. That is, it did not ask that the jury, to find Defendant guilty, be instructed

that it must be unanimous as to which one or more of the Government’s three theories of

obstruction was the basis. As a result, even were one of these theories valid, there would be no

way for this Court to know that the jury meant to convict on that one and not the invalid others.

        B. Fairness of the Proceeding

        Having determined Heru-Bey’s substantial rights were affected, the Court must next

consider the fourth prong of plain-error analysis — viz., whether the error “seriously affect[s] the

fairness, integrity, or public reputation of judicial proceedings.” Olano, 507 U.S. at 736 (citation

omitted). It has little trouble concluding that standard is met here. Examining the Supreme

Court’s recent treatment of the fourth prong confirms this understanding. See Rosales-Mireles v.

United States, 138 S. Ct. 1897 (2018).

        In Rosales-Mirales, a presentence-investigation report mistakenly counted twice one of

the defendant’s convictions. That resulted in a guidelines range of 77 to 96 months; the correct



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range would have been 70 to 87 months. See 138 S. Ct. at 1905. He was sentenced to 78

months’ imprisonment. Id. The Court held the fourth prong of Olano was met because even

though the sentence actually imposed was within the correct guidelines range, there was a

reasonable probability that he was serving a higher sentence because of the error. Id. at 1907. It

elaborated that “[t]he risk of unnecessary deprivation of liberty particularly undermines the

fairness, integrity, or public perception of judicial proceedings,” especially where it results not

from “trial strateg[y]” but “judicial error.” Id. at 1908 (internal quotation marks and citation

omitted).

       For similar reasons, Heru-Bey satisfies the fourth prong here. Given the reasonable

probability that the jury would not have convicted given the proper instruction — or that any

such conviction would not have stood — there is a serious risk in this case of an unnecessary

deprivation of liberty. Cf. United States v. Prado, 815 F.3d 93, 102–04 (2d Cir. 2016) (finding

fourth prong met where there was reasonable probability of different outcome had jury been

properly instructed). The Government contends that errors in jury instructions will not always

satisfy the fourth prong. See Gov’t Br. at 9–10 (citing Johnson v. United States, 520 U.S. 461,

470 (1997)). In Johnson, however, evidence supporting the element of the offense on which the

jury should have been instructed was “overwhelming,” and the Court did not find a likelihood

that the verdict would have been affected. See 520 U.S. at 469–70. The Government offers no

authority for the proposition that, where there is a reasonable probability the outcome at trial

would have been different had the jury been properly instructed, the fourth prong is not met.




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III.    Conclusion

        For these reasons, the Court will vacate Heru-Bey’s conviction in light of the erroneous

jury instruction but will allow the Government to retry the case if it so elects. A separate Order

so stating will issue this day.

                                                             /s/ James E. Boasberg
                                                             JAMES E. BOASBERG
                                                             United States District Judge
Date: January 10, 2019




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