United States District Court, D. Minnesota
M. Brennan and Benjamin F. Langner, UNITED STATES
ATTORNEY'S OFFICE, for plaintiff.
B. Wold and Aaron J. Morrison, WOLD MORRISON LAW, for
defendant Luminaire Environmental and Technologies, Inc.
S. Friedberg, JOSEPH S. FRIEDBERG, CHARTERED, for defendant
John D. Miller, Jr.
P. Gray, EARL GRAY DEFENSE, for defendant Joseph V. Miller.
Patrick J. Schiltz United States District Judge
are charged with various offenses arising out of an alleged
scheme in which they contracted to transport and properly
dispose of materials containing toxic chemicals, but instead
fraudulently diverted and sold the materials as scrap metal.
In addition to conspiracy and fraud charges, defendants are
charged in Counts 17-22 with falsifying documents in
violation of 18 U.S.C. § 1519. Specifically, the
indictment charges them with falsely certifying that the
hazardous materials had been received at their facility when
in fact the materials had been diverted and sold.
matter is before the Court on defendants' objection to
Magistrate Judge David T. Schultz's May 11, 2018 Report
and Recommendation (“R&R”). Judge Schultz
recommends denying defendants' motion to dismiss Counts
17-22. Having reviewed the matter de novo, see 28
U.S.C. § 636(b)(1), Fed. R. Crim. P. 59(b)(3), the Court
agrees with Judge Schultz's analysis, adopts the R&R,
and denies defendants' motion to dismiss.
1519 provides as follows:
Whoever knowingly alters, destroys, mutilates, conceals,
covers up, falsifies, or makes a false entry in any record,
document, or tangible object with the intent to impede,
obstruct, or influence the investigation or proper
administration of any matter within the jurisdiction of any
department or agency of the United States or any case filed
under title 11, or in relation to or contemplation of any
such matter or case, shall be fined under this title,
imprisoned not more than 20 years, or both.
United States v. Yielding, the Eighth Circuit held
that § 1519 does not require the government to prove
that the defendant knew that his actions were likely to
affect an investigation or other federal proceeding.
United States v. Yielding, 657 F.3d 688, 712 (8th
Cir. 2011). Instead, it is sufficient for the government to
prove that the defendant acted in contemplation of and with
the intent to impede, obstruct, or influence such a
proceeding. Id. This is true even if the proceeding
is neither pending nor especially likely to occur. See
Id. at 712 (“[W]e do not think the statute allows
an accused with the requisite intent to avoid liability if he
. . . shredded a document for the purpose of eliminating a
small but appreciable risk that the document would lead
investigators to discover his wrongdoing.”); see
also Yates v. United States, 135 S.Ct. 1074, 1087 (2015)
(plurality opinion) (noting that § 1519 “covers
conduct intended to impede any federal investigation or
proceeding, including one not even on the verge of
holding, the Eighth Circuit distinguished United States
v. Aguilar, 515 U.S. 593 (1995), and Arthur Andersen
LLP v. United States, 544 U.S. 696 (2005).
Aguilar construed 18 U.S.C. § 1503-which
criminalizes (among other things) corruptly obstructing
“the due administration of justice”-to require
the government to prove knowledge that the defendant's
acts were likely to affect a particular proceeding.
Aguilar, 515 U.S. at 599-600. Relying on
Aguilar, Arthur Andersen read a similar
requirement into 18 U.S.C. § 1512(b)(2), which
criminalizes (among other things) corruptly persuading
another to withhold or destroy documents to prevent their use
in an official proceeding. Arthur Andersen, 544 U.S.
contend that Yielding is no longer good law in light
of the Supreme Court's recent decision in Marinello
v. United States, 138 S.Ct. 1101 (2018).
Marinello held that 26 U.S.C. § 7212(a), which
makes it a felony to “in any . . . way corruptly . .
.obstruct or impede . . . the due administration
of” the Internal Revenue Code, requires proof of a
“nexus” between the defendant's conduct and a
particular proceeding that is either pending or reasonably
foreseeable. Id. at 1109-10; see also Id.
at 1110 (“It is not enough for the Government to claim
that the defendant knew the IRS may catch on to his unlawful
scheme eventually. To use a maritime analogy, the proceeding
must at least be in the offing.”).
Judge Schultz observed, however, Marinello relied on
Aguilar and Arthur Andersen, which the
Eighth Circuit explicitly distinguished in
Yielding.Yielding, 657 F.3d at 712-13
(“The language of § 1519 is materially different
from the statutes considered in Aguilar and
Arthur Andersen.”). And the statute at issue
in Marinello (§ 7212(a)) is distinguishable
from § 1519 in precisely the ways delineated by the
Eighth Circuit in Yielding. Like § 1503 (the
statute at issue in Aguilar), § 7212(a) lacks
the language explicitly defining the requisite intent on
which the Eighth Circuit relied in Yielding.
Yielding, 657 F.3d at 713 (“[I]n § 1519,
Congress spoke more directly to the requisite intent and
described its scope more precisely.”). And like both
§ 1503 and § 1512(b)(2) (the statute at issue in
Arthur Andersen), § 7212(a) includes the
“corruptly” language that the Eighth Circuit
found to “call for implication of an additional
intent requirement.” Yielding, 657 F.3d at
713. In short, as Judge Schultz explained,
“Marinello simply does not plow new
ground.” R&R at 5. Moreover, as noted, a ...