United States v. Foote O'Donoghue

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA, v. RICHARD GRAHAM FOOTE Criminal Action No. 24-566 (CKK) O’DONOGHUE,

Defendant.

MEMORANDUM OPINION (July 22, 2026)

Defendant Graham O’Donoghue moves to dismiss Counts One through Eight of the

Indictment for lack of venue. These Counts charge O’Donoghue with tax evasion for the years

2012 through 2015 (Counts One through Four) and subscribing to false tax returns for those same

years (Counts Five through Eight). O’Donoghue argues that neither the “high seas” venue statute,

18 U.S.C. § 3238, nor the general venue statute, 18 U.S.C. § 3237(a), establish venue in the District

of Columbia because (i) each offense involves essential conduct that occurred in the United States,

and (ii) none of the offenses involve any conduct that occurred in the District of Columbia. Upon

consideration of the parties’ submissions, 1 the relevant legal authority, and the entire record, the

Court shall GRANT O’Donoghue’s [79] Motion to Dismiss Count 1–8 of the Indictment for Lack

of Venue.

1 The Court’s consideration has focused on the Indictment, Dkt. No. 1 (“Indictment”); O’Donoghue’s Motion to Dismiss Count 1-8 of the Indictment for Lack of Venue, Dkt. No. 79 (“Def.’s Mot.”); the Government’s Opposition to O’Donoghue’s Motion to Dismiss, Dkt. No. 89 (“Gov’t’s Opp’n”); O’Donoghue’s Reply to the Government’s Opposition, Dkt. No. 95 (“Def.’s Reply”); the Government’s Sur-Reply to O’Donoghue’s Reply, Dkt. No. 105-1 (“Gov’t’s Sur-Reply”); and O’Donoghue’s Response to the Government’s Sur-Reply, Dkt. No. 110 (“Def.’s Response”).

1 I. BACKGROUND

Defendant Graham O’Donoghue is a United States citizen who began living and working

abroad in 2011. Indictment ¶ 1. His last known residence in the United States was in the District

of Columbia. Id. As a United States citizen living abroad, when O’Donoghue received income

above a certain threshold for a given year, he had an obligation to report it to the Internal Revenue

Service (“IRS”) and pay any resulting income taxes. Id. ¶ 3.

O’Donoghue and his family lived in London, United Kingdom, from 2011 to 2013. Id. ¶

4. In 2012 and 2013, O’Donoghue worked as an independent consultant for various foreign

companies. Id. ¶ 5. O’Donoghue requested and received payment for these services via wire

transfer to his personal bank account. Id. ¶ 6. No U.S. taxes were withheld or paid over to the IRS

from these payments. Id.

In mid-2013, O’Donoghue was hired to be the CEO for one of the companies he consulted

for, referred to here as Company-1. Id. ¶ 7. This led O’Donoghue and his family to relocate to

Dubai, United Arab Emirates, where Company-1 was located. Id. As CEO of Company-1,

O’Donoghue allegedly received regular salary payments that were supplemented by “large lump

sum bonus payments.” Id. ¶ 7. Company-1 allegedly took care of various expenses for

O’Donoghue, as well, including O’Donoghue’s relocation expenses and several ongoing expenses,

such O’Donoghue’s rent, car (and driver), and travel insurance. Id. It also gave O’Donoghue a

corporate credit card, which he is charged with using for personal purchases. Id. ¶ 8.

Company-1 terminated O’Donoghue’s employment in early 2015. Id. ¶ 9. In February

2015, Company-1 allegedly paid O’Donoghue a $684,226 severance payment by wire to his

personal bank account. Id. ¶ 10. Despite receiving this payment, O’Donoghue allegedly refused

to sign a severance agreement. Id.

*** 2 The Indictment alleges that O’Donoghue “made hundreds of thousands of dollars of

income each year from 2012 through 2015.” Indictment ¶ 11. While O’Donoghue made periodic

estimated payments to the IRS during those years, he failed to timely file his federal individual

income tax returns for tax years 2012, 2013, and 2014. Id.

***

In June 2016, O’Donoghue engaged a U.S. national residing in Serbia and working as a tax

preparer (“Tax Preparer-1”), to prepare his U.S. Individual Income Tax Returns, Forms 1040, for

tax years 2012 to 2015. Id. ¶ 12. The Indictment alleges that O’Donoghue provided false

information to Tax Preparer-1 despite knowing he had a duty to report accurate information. Id.

Specifically, O’Donoghue is alleged to have: told Tax Preparer-1 about only a portion of his

independent consulting income from 2012 and 2013; mislabeled his role at Company-1; concealed

the expenses Company-1 allegedly paid on his behalf in Dubai along with a significant portion of

his other compensation and bonuses from Company-1; and mischaracterized the nature of the lump

sum severance payment he received from Company-1 in 2015. Id. ¶ 13. As a result, each of the

returns for 2012 through 2015 prepared by Tax Preparer-1 allegedly underreported O’Donoghue’s

total taxable income and the amount of tax he owed. Id.

Following the preparation of his 2012–2015 returns, O’Donoghue allegedly caused Tax

Preparer-1 to file the allegedly false returns with the IRS. Id. ¶ 14. O’Donoghue’s 2012 return

was filed on June 15, 2016, while his 2013, 2014, and 2015 returns were filed on October 17, 2016.

Id. Because O’Donoghue was a U.S. citizen living abroad, his returns were addressed to and filed

with the IRS service center in Austin, Texas, which proceeded to process O’Donoghue’s 2012–

2015 returns. See Gov’t’s Opp’n at 2 n.1. According to the Indictment, because O’Donoghue had

previously made estimated payments to the IRS, the allegedly false information reported on his

3 2012–2015 returns made it appear as though he was entitled to refunds from the IRS. Indictment

¶ 14. As a result, the IRS deposited a significant portion of the purported refund amounts directly

into O’Donoghue’s bank account. Id. ¶ 15. In total, O’Donoghue is charged with concealing

approximately $1 million of income by filing his allegedly false 2012–2015 returns. Id.

In January 2023, the Government informed O’Donoghue’s then-counsel that the IRS had

referred criminal charges against O’Donoghue for tax evasion relating to tax years 2012 through

2015. Gov’t’s Opp’n at 2. The Government explained that it intended to present an indictment in

the Western District of Texas, the district where the IRS processed O’Donoghue’s allegedly false

returns. Id.; see also Def.’s Sealed Ex. 2, Dkt. No. 80-2 at 1 (

).

Def.’s Sealed Ex. 2 at 1.

In February 2023, O’Donoghue voluntarily participated in an interview with prosecutors

and law enforcement agents at Department of Justice Offices in Washington, D.C., pursuant to a

written proffer agreement. Indictment ¶ 16. The proffer agreement provided that O’Donoghue’s

truthfulness was an express material condition of the agreement, and that if he was not completely

truthful and candid during the interview, his statements could be used against him for any purpose.

4 Id. O’Donoghue was also orally advised at the beginning of the interview that making false

statements to law enforcement could subject him to criminal charges. Id.

During the February 2023 interview, O’Donoghue allegedly “admitted that the income

reported on his 2012 to 2015 tax returns was incorrect and did not reflect the income he had

actually received in those years.” Id. ¶ 18. According to the Indictment, O’Donoghue explained

that he “had used his bank statements to calculate his income each year” and that the numbers he

gave Tax Preparer-1 were a mistake. Id.

O’Donoghue is also charged with making several false statements during the February

2023 interview. “When questioned about specific information he provided to Tax Preparer-1 about

his income in 2015,” O’Donoghue allegedly made the following false statements regarding the

$684,226 lump sum payment he received at the end of his employment with Company-1: first,

O’Donoghue allegedly stated that a portion of the lump sum payment had been intended for his

former executive assistant, and that he had paid her $20,000 to $30,000 out of the sum; second,

O’Donoghue allegedly stated that a portion of the lump sum payment had been an investment by

a shareholder of Company-1 into O’Donoghue’s business enterprise; and third, O’Donoghue

allegedly stated that a portion of the lump sum payment had been reimbursement for business

expenses he incurred on his personal credit card. Id. ¶ 19. According to the Indictment, these

statements were false because “all of the $684,226 lump sum payment” had been O’Donoghue’s

severance from Company-1. Id.

In October 2023, the Government reiterated to O’Donoghue’s then-counsel that venue for

O’Donoghue’s prosecution would be in the Western District of Texas and again asked whether

O’Donoghue would sign a waiver to permit venue in the District of Columbia. Gov’t’s Opp’n at

2–3; see also Def.’s Sealed Ex. 1 (

5 ). Through his then-counsel,

O’Donoghue informed the Government that he would not waive venue. Gov’t’s Opp’n at 2.

Despite indicating that it would indict O’Donoghue in the Western District of Texas, the

Government proceeded with its prosecution in the District of Columbia. See Gov’t’s Opp’n at 2–

3 (where the Government explains that it “reviewed the relevant case law and factual evidence”

after communicating with O’Donoghue’s then-counsel and decided to proceed in the District of

Columbia). In December 2024, a District of Columbia grand jury handed down an indictment

charging O’Donoghue with four counts of tax evasion, in violation of 26 U.S.C. § 7201; four

counts of subscribing to false tax returns, in violation of 26 U.S.C. § 7206(1); and one count of

making false statements, in violation of 18 U.S.C. § 1001. See Indictment. O’Donoghue was

arrested on these charges in May 2025. See Arrest Warrant, Dkt. No. 6.

O’Donoghue now moves to dismiss the tax evasion counts and the false subscription counts

for lack of venue. The Court shall detail O’Donoghue’s argument below, but in a nutshell, he

argues that the Court must reject the Government’s attempt to use the “high seas” venue statute,

18 U.S.C. § 3238, and the general venue statute, 18 U.S.C. § 3237(a), to establish venue in the

District of Columbia because (i) each offense involves essential conduct that occurred in the

United States (i.e., the filing of O’Donoghue’s allegedly false returns in Austin, Texas), and (ii)

none of the offenses involve any conduct that occurred in the District of Columbia. O’Donoghue’s

6 motion is fully briefed and ripe for decision. See Gov’t’s Opp’n; Def.’s Reply; Gov’t’s Sur-Reply;

Def.’s Response to Gov’t’s Sur-Reply.

II. LEGAL STANDARD

In a criminal prosecution, the Government “bears the burden of establishing by a

preponderance of the evidence that venue is proper with respect to each count charged against the

defendant.” United States v. Morgan, 393 F.3d 192, 195 (D.C. Cir. 2004). “Proper venue in

criminal trials is more than just a procedural requirement; it is a constitutionally guaranteed

safeguard.” United States v. Root, 585 F.3d 145, 155 (3d Cir. 2009); Travis v. United States, 364

U.S. 631, 634 (1961) (“. . . questions of venue are more than matters of mere procedure.”).

“Proper venue in criminal proceedings was a matter of concern to the Nation’s founders,”

and this concern has been channeled into our Constitution, which “twice safeguards the

defendant’s venue right” by tying venue in criminal trials to the place of the alleged criminal

conduct. United States v. Cabrales, 524 U.S. 1, 6 (1998). Under Article III, the trial “of all Crimes

. . . shall be held in the State where the said Crimes shall have been committed;” only when a crime

is “not committed within any State” may Congress direct venue elsewhere. U.S. Const. art. III, §

2, cl. 3. The Sixth Amendment “reinforces that command,” Abouammo v. United States, 146 S.

Ct. 1571, 1576 (2026), by protecting a defendant’s right to be tried by a jury “of the State and

district wherein the [charged] crime shall have been committed,” U.S. Const. amend. VI. In sum,

and as the Federal Rules of Criminal Procedure explain, the constitutional baseline for venue in

criminal proceedings is that “the government must prosecute an offense in a district where the

offense was committed.” Fed. R. Crim. P. 18.

“A crime is ‘committed,’ for venue purposes, where its ‘essential conduct elements’ are

completed.” United States v. Jin, No. 23-cr-091-2 (CKK), 2025 WL 2409749, at *13 (D.D.C.

Aug. 19, 2025) (quoting United States v. Rodriguez-Moreno, 526 U.S. 275, 280–81 (1999)). 7 Accordingly, “[t]o implement [the] constitutional rule—meaning, to decide where the crime was

committed—courts generally must determine the location of the offense’s ‘essential conduct

elements.’” Abouammo, 146 S. Ct. at 1576 (quoting Rodriguez-Moreno, 526 U.S. at 280). To

determine the “essential conduct elements” of an offense—also referred to as “the conduct

constituting the offense”—courts must identify “the things a defendant must do to violate the

statute at issue.” Id.; see also Jin, 2025 WL 2409749, at *13 (quoting Rodriguez-Moreno, 526

U.S. at 280) (explaining that “courts must consider not only the ‘verbs of the statute,’ but also any

other elements that the Government must prove to obtain a conviction”). An offense’s “essential

conduct elements” may be committed in one district, multiple districts, or, in the case of an entirely

foreign crime, no districts at all. Regardless, “the [venue] inquiry remains one into the place of

the crime’s conduct elements—the acts that the prosecution must prove to secure a conviction.”

Abouammo, 146 S. Ct. at 1577.

III. ANALYSIS

O’Donoghue moves to dismiss Counts One through Eight of the Indictment for lack of

venue. Counts One through Four charge O’Donoghue with tax evasion for the years 2012 through

2015, while Counts Five through Eight charge O’Donoghue with subscribing to false tax returns

for those same years. The Court shall address Counts Five through Eight and then proceed to

Counts One through Four. In the end, the Court concludes that the District of Columbia is not a

proper venue for the prosecution of Counts One through Eight.

A. The District of Columbia is not a proper venue for the prosecution of Counts Five through Eight, which charge O’Donoghue with subscribing to false tax returns for tax years 2012 through 2015.

Counts Five through Eight of the Indictment charge O’Donoghue with subscribing to false

tax returns for the years 2012 through 2015 (hereinafter, the “false-subscription charges”).

Indictment ¶¶ 23–24. Specifically, the Indictment charges that in 2016, “in Dubai, United Arab

8 Emirates and elsewhere,” O’Donoghue “willfully made and subscribed and filed, caused to be

filed, and attempted to file” with the IRS false individual income tax returns for the years 2012,

2013, 2014, and 2015, each of which was “verified by a written declaration that it was made under

the penalties of perjury.” Indictment ¶ 24. It is alleged that O’Donoghue did not believe these

returns to be true and correct as to the following material facts:

Count Tax Approximate Allegedly False Items Year Attempted Filing Date 5 2012 June 15, 2016 -Line 12, business income -Line 22, total income -Schedule C, Line 1, gross receipts 6 2013 October 17, 2016 -Line 12, business income -Line 22, total income -Schedule C, Line 1, gross receipts 7 2014 October 17, 2016 -Line 7, wages -Line 22, total income 8 2015 October 17, 2016 -Line 7, wages -Line 22, total income

Id.

The Government seeks to establish venue for the false-subscription charges in the District

of Columbia under the “high seas” venue statute, which provides, in full, that

The trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district in which the offender, or any one of two or more joint offenders, is arrested or is first brought; but if such offender or offenders are not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender or of any one of two or more joint offenders, or if no such residence is known the indictment or information may be filed in the District of Columbia.

18 U.S.C. § 3238. According to the Government, venue is proper in the District of Columbia

under the “high seas” venue statute because O’Donoghue’s allegedly false tax returns were

prepared by Tax Preparer-1 and signed by O’Donoghue abroad, and the Government indicted

9 O’Donoghue in the district of his last known residence (the District of Columbia) before he was

arrested or first brought into the United States. See Gov’t’s Opp’n at 6–7; Gov’t’s Sur-Reply at

5–6.

O’Donoghue argues that the Constitution prevents the Government from using the “high

seas” venue statute to establish venue for the false-subscription charges in the District of Columbia.

O’Donoghue points to Article III, which provides that criminal trials “shall be held in the State

where the said Crimes shall have been committed” and limits Congress’ power to direct venue

elsewhere to cases involving crimes “not committed within any State.” U.S. Const. art. III, § 2,

cl. 3. According to O’Donoghue, because the filing of his allegedly false tax returns is an “essential

conduct element” of the false-subscription charges, and because this filing occurred in Austin,

Texas, the false-subscription charges were “committed within [a] State” under Article III and

therefore fall beyond Congress’ power to direct venue under the “high seas” venue statute. See

Def.’s Mot. at 3–5; Def.’s Reply at 1–4. Accordingly, because the “high seas” venue statute is the

Government’s only basis for laying the false-subscription charges in the District of Columbia,

O’Donoghue argues that the charges should be dismissed for lack of venue.

At bottom, O’Donoghue’s motion to dismiss the false-subscription charges for lack of

venue presents two interrelated issues. First, the Court must determine whether the act of filing is

an essential conduct element of the false-subscription charges, and if so, whether that conduct

occurred in the Western District of Texas. Second, if the Court finds that the act of filing is an

essential conduct element that occurred in the Western District of Texas, the Court must determine

whether such domestic conduct prevents the Government from using the “high seas” venue statute

to establish venue in a district where no relevant conduct occurred.

10 1. The act of filing is an essential conduct element of the false-subscription charges, and the filing of O’Donoghue’s allegedly false returns occurred in the Western District of Texas.

Proper venue is determined according to the locus delicti of a given offense. See United

States v. El-Saadi, 549 F. Supp. 3d 148, 156 (D.D.C. 2021) (RDM) (citing United States v.

Morgan, 393 F.3d 192, 196 (D.C. Cir. 2004)) (defining the term locus delicti as “the scene of the

crime”); see also Locus Delicti, BLACK’S LAW DICTIONARY (12th ed. 2024) (translating the term

to mean the “place of the wrong” and defining it as “[t]he place where an offense was committed;

the place where the last event necessary to make the actor liable occurred”). The locus delicti of

an offense, in turn, “must be determined from the nature of the crime alleged and the location of

the act or acts constituting it.” Cabrales, 524 U.S. at 6–7 (quoting United States v. Anderson, 328

U.S. 699, 702 (1946)). Accordingly, to determine where the false-subscription charges were

“committed” for purposes of venue, the Court “must initially identify the conduct constituting the

offense”—also known as the “essential conduct elements” of the offense—and then “discern the

location of the commission of the criminal acts.” Rodriguez-Moreno, 526 U.S. at 279; Abouammo,

146 S. Ct. at 1576–77.

The Government brings the false-subscription charges against O’Donoghue under 26

U.S.C. § 7206(1), which provides that

Any person who . . . Willfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter . . . shall be guilty of a felony[.]

26 U.S.C. § 7206(1).

The parties agree that the essential conduct elements of the false-subscription charges

include the preparation and the signing of O’Donoghue’s allegedly false returns, both of which

occurred abroad. See Def.’s Mot. at 4; Gov’t’s Opp’n at 6; Gov’t’s Sur-Reply at 5–6. Initially,

11 the parties also agreed that the essential conduct elements included the filing of O’Donoghue’s

allegedly false returns. See Gov’t’s Opp’n at 4 (arguing that venue would be “proper in any district

in which the false return was prepared and signed, as well as the district in which it was received

and filed,” because “these are the essential conduct elements of the offense”); Def.’s Mot. at 4–5

(arguing the same). But the Government has since backtracked from this position. Although the

Government maintains that venue may be proper in “the district where a return was received by

the IRS,” it argues in its Sur-Reply that “the ‘essential conduct element’ for this offense is the

making and subscribing of the false return, not the IRS’ act of receiving it.” Gov’t’s Sur-Reply at

5–6 (emphasis in original); see also Def.’s Response to Gov’t’s Sur-Reply at 3 (arguing that the

Government “conceded (correctly) in its opposition” that filing was an essential conduct element,

despite “[arguing] the opposite in its sur-reply” “[w]ithout acknowledging this concession”)

(emphasis in original).

The issue, therefore, is whether the filing of O’Donoghue’s allegedly false returns is an

essential conduct element of the false-subscription charges. Upon consideration of this issue, the

Court determines that the filing of O’Donoghue’s allegedly false returns—in addition to their

preparation and signing—is an essential conduct element of the false-subscription charges, and

that this filing occurred in the Western District of Texas.

a. The filing of O’Donoghue’s allegedly false returns for 2012–2015 is an essential conduct element of the false-subscription charges because it is something the Government must prove to obtain a conviction under 26 U.S.C. § 7206(1).

To determine whether the filing of O’Donoghue’s allegedly false returns is an essential

conduct element of the false-subscription charges, the Court must determine whether such filing

is one of “the things a defendant must do to violate” Section 7206(1) of the Internal Revenue Code.

12 Abouammo, 146 S. Ct. at 1576. Again, the text of Section 7206(1), titled, “Declaration under

penalties of perjury,” provides, in relevant part, that

Any person who . . . Willfully makes and subscribes [a] return . . . which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter . . . shall be guilty of a felony[.]

26 U.S.C. § 7206(1). According to the Indictment, O’Donoghue violated Section 7206(1) when

he “willfully made and subscribed and filed, caused to be filed, and attempted to file” income tax

returns for 2012–2015 that were “verified by” the requisite written declarations and which

O’Donoghue “did not believe to be true and correct as to every material fact.” Indictment ¶ 24.

Numerous courts have found that “[t]o obtain a conviction [under Section 7206(1)], the

Government must prove that the defendant filed a tax return.” Neder v. United States, 527 U.S. 1,

16 (1999). 2 The Government has not identified any caselaw to the contrary. Furthermore, it is

hard to see how the Government could prove the false-subscription charges against O’Donoghue

without proving that O’Donoghue’s allegedly false returns were filed with the IRS. Indeed, the

Government describes the false-subscription charges as “four counts of filing false tax returns, in

violation of 26 U.S.C. § 7206(1),” and it has explicitly argued that filing is an essential conduct

element of the offense. Gov’t’s Opp’n at 3–4 (emphasis added).

2 See United States v. Boitano, 796 F.3d 1160, 1163 (9th Cir. 2015) (“Our court has long held that ‘filing’ is an element of a § 7206(1) violation.”); United States v. Tarwater, 308 F.3d 494, 504 (6th Cir. 2002) (“Section 7206 is a perjury statute that criminalizes lying on any document filed with the IRS.”); United States v. Gricco, 277 F.3d 339, 350 (3d Cir. 2002) (“. . . the offense of making a false return requires proof of a false statement on a return, whereas a violation of 26 U.S.C. § 7201 may be shown even if the taxpayer did not file a return at all.”); United States v. Pace, 314 F.3d 344, 352 (9th Cir. 2002) (“A communication must be sent before it is received. Thus, the crime of ‘making’ a false tax return commences when one furnishes information essential to the return, and is not completed until the information is received by the party to whom it is addressed.”); United States v. Gilkey, 362 F. Supp. 1069, 1071 (E.D. Pa. 1973) (“. . . we think that a filled-in form 1040 does not become a ‘return,’ and a taxpayer does not ‘make a return,’ until it is filed with the Internal Revenue Service. To hold otherwise would be not only to defy precedent, but also to offend common sense notions of fairness.”); see also United States v. Lawhon, 499 F.2d 352, 355 (5th Cir. 1974); U.S. v. Vallone, 698 F.3d 416, 507 (7th Cir. 2012), cert. granted, judgment vacated on other grounds, 133 S. Ct. 2825 (2013) (“The preparation of a false tax return can be a multi-district offense, as the return may be prepared in one district, subscribed to in another district, and filed in a third district; venue would thus be appropriate in any of these districts.”).

13 The text of Section 7206(1), however, disturbs the apparent clarity gleaned from the

caselaw and the charges. For Section 7206(1) mentions only the “mak[ing] and subscrib[ing]” of

a return and not the filing of a return. 26 U.S.C. § 7206(1). The Government appears to latch on

to this language in arguing that “the ‘essential conduct element’ for this offense is the making and

subscribing of the false return, not the IRS’ act of receiving it.” Gov’t’s Sur-Reply at 6. The

question, therefore, is whether the text of Section 7206(1) warrants a departure from the weight of

authority and the nature of the specific charges brought here.

The Court determines that the text of Section 7206(1) does not warrant such a departure.

While Section 7206(1) does not expressly establish a filing requirement, the Court concludes that,

“whether filing is viewed as a separate implicit, but necessary, element of a Section 7206(1)

offense or as incorporated in the statutory ‘making’ requirement, there can be no Section 7206(1)

offense without filing.” United States v. Swanson, 1997 WL 225446, at *1–2 (4th Cir. May 5,

1997) (per curiam) (collecting cases) (citation modified). Multiple aspects of the text support this

conclusion.

To start, Section 7206(1)’s reference to anyone who “makes . . . [a] return” is best read to

refer to someone who files a return. While the Code does not provide an explicit definition of the

term “return” as it is used in Section 7206(1), the Code’s definition of the term elsewhere suggests

that it is a term of art used to refer to a document that is filed. The Code’s primary privacy

provision, for instance, defines the term as a document that “is filed with the Secretary.” 26 U.S.C.

§ 6103(b)(1). Moreover, information does not become protected “return information” under this

privacy provision until it is “received by, recorded by, prepared by, furnished to, or collected by

the Secretary.” Lomont v. O’Neill, 285 F.3d 9, 15 (D.C. Cir. 2002) (quoting 26 U.S.C. §

6103(b)(2)). Another example is the Code’s statute of limitations for the IRS to assess tax liability,

14 which defines “return” as a document “required to be filed by the taxpayer,” 26 U.S.C. § 6501(a),

and has been interpreted to mean that “a return does not trigger the running of the statute of

limitations unless it is filed in the place required by the statute or regulations,” Comm’r of IRS v.

Est. of Sanders, 834 F.3d 1269, 1274 (11th Cir. 2016) (citing Allnutt v. Comm’r, 523 F.3d 406,

413 (4th Cir. 2008)). Furthermore, the Supreme Court’s longstanding test to determine whether a

document is a “return” incorporates the act of filing; a document is a return “if it purports to be a

return, is sworn to as such, and evinces an honest and genuine endeavor to satisfy the law,” even

if “at the time of filing the omissions or inaccuracies are such as to make amendment necessary.”

Zellerbach Paper Co. v. Helvering, 293 U.S. 172, 180 (1934).

While the Code does not expressly define how someone “makes” a return under Section

7206(1), reading the term in the context of the Code leads the Court to conclude that ‘making’ a

return requires something more than ‘preparing’ a return, and that something more is the filing of

the return. For one thing, another provision in Section 7206—Section 7206(2)—already

criminalizes the act of preparation; it penalizes anyone who willfully “aids or assists in, or

procures, counsels, or advises the preparation or presentation . . . of a return.” 26 U.S.C. § 7206(2).

For another, when the Code refers to the ‘making’ of a return elsewhere, it does so in clear

reference to the act of filing. Most notable in this regard is the Code’s penalization for the

“[w]illful failure to file a return,” which makes it a misdemeanor for “[a]ny person required . . . to

make a return” to “willfully fail[] to . . . make such return . . . at the time or times required by law

or regulations.” 26 U.S.C. § 7203 (titled, “Willful failure to file return, supply information, or pay

tax”). The Court is not aware of any law or regulation that dictates the “time or times” by which

taxpayers must prepare their returns, only the “time or times” by which taxpayers must file their

15 returns. With this statutory context, the Court concludes that someone “makes” a return under

Section 7206(1) by filing that return.

The remaining language in Section 7206(1) further clarifies that filing is an essential

conduct element of the false-subscription charges against O’Donoghue. Not only must the

Government prove that O’Donoghue “[made] . . . [a] return,” but it must also show that such return

was “verified by” a written declaration that the return was “made under the penalties of perjury,”

and that O’Donoghue “[did] not believe [the return] to be true and correct as to every material

matter.” 26 U.S.C. § 7206(1). By requiring the Government to prove that a return was “verified

by” a written declaration that the return was “made under the penalties of perjury,” the statute

plainly contemplates that a return is something that is packaged and sent to another for use in an

official process or proceeding (i.e., filed). Furthermore, by requiring the Government to prove that

O’Donoghue “[did] not believe [the return] to be true and correct as to every material matter,” the

statute imposes a materiality requirement that necessarily implies a recipient. As the Supreme

Court has explained, for a false statement to be “material” under Section 7206(1), it must have “a

natural tendency to influence, or [be] capable of influencing, the decision of the decisionmaking

body to which it was addressed.” Neder, 527 U.S. at 16 (internal citations omitted). Accordingly,

it is hard to see how the Government could prove that a matter is “material” under the statute

without first proving that the matter was, in some form or another, “addressed” to a

“decisionmaking body” (i.e., filed). Id.

In addition to the text of the statute, a broader interpretative principle supports reading

Section 7206(1) to require a finding that O’Donoghue filed the allegedly false returns at issue. The

Court referenced above that the Code makes it a misdemeanor to willfully fail to file a return that

is due under law. See 26 U.S.C. § 7203 (titled, “Willful failure to file return, supply information,

16 or pay tax”). In Spies v. United States, 317 U.S. 492 (1943), the Supreme Court characterized this

misdemeanor as a crime of omission and distinguished it from the felony of tax evasion, explaining

that, while “[w]illful but passive neglect of the statutory duty may constitute the lesser offense” of

misdemeanor failure to file, such passive neglect must be “combine[d] with” a “willful and positive

attempt” to evade tax in order to “lift[] the offense to the degree of felony.” Spies, 317 U.S. at

499. While the present matter concerns felony false-subscription charges rather than felony tax

evasion charges, 3 the Court reads Spies to caution that, for tax felonies, “the gravest of offenses

against the revenues,” “Congress intended some willful commission in addition to the willful

omissions that make up the list of misdemeanors.” Id. Reading Section 7206(1) to require the

Government to prove that an allegedly false return was filed is not only the best reading of the text,

but also it is in harmony with the principle articulated in Spies.

The Court’s reading of Section 7206(1) aligns with the other courts that have weighed in

on this issue. Some of these courts have explicitly held that filing is an element of a Section

7206(1) violation. 4 Others have simply held that venue for a Section 7206(1) offense is proper in

the district where an allegedly false return was filed. 5 Considering the text of the statute, the

weight of this authority, and the fact that the false-subscription charges against O’Donoghue arose

out of his alleged filing of allegedly false returns with the IRS, the Court concludes that the

Government must prove that O’Donoghue’s allegedly false returns were filed with the IRS in order

to convict O’Donoghue of the false-subscription charges. Accordingly, the filing of

3 The Court deals with the tax evasion charges against O’Donoghue in Section III.B. 4 See, e.g., Boitano, 796 F.3d 1160, 1163; Tarwater, 308 F.3d 494, 504; Gricco, 277 F.3d 339, 350; Pace, 314 F.3d 344, 352; Gilkey, 362 F. Supp. 1069, 1071. 5 See, e.g., United States v. Rooney, 866 F.2d 28, 31 (2d Cir. 1989); United States v. Shyres, 898 F.2d 647, 657 (8th Cir. 1990); United States v. Marrinson, 832 F.2d 1465, 1475 (7th Cir. 1987); Vallone, 698 F.3d at 507; Lawhon, 499 F.2d at 355.

17 O’Donoghue’s allegedly false returns is an essential conduct element of the false-subscription

charges.

b. Because O’Donoghue’s allegedly false income tax returns for 2012– 2015 were filed and processed at the IRS service center in Austin, Texas, the false-subscription charges involve conduct that was “committed,” for purposes of venue, in the Western District of Texas.

As determined above, the essential conduct elements of the false-subscription charges

include the preparation, signing, and filing of O’Donoghue’s allegedly false income tax returns for

2012–2015. See supra Section III.A.1.a. Having identified those essential conduct elements, the

Court must now “discern the location of the commission of [those] criminal acts.” Rodriguez-

Moreno, 526 U.S. 275, 279. In other words, the Court must determine where the false-subscription

charges were “committed” for purposes of venue. Id.

The Court shall focus on the location of filing, as the parties do not dispute that

O’Donoghue’s allegedly false returns were allegedly prepared and signed abroad. See Def.’s Mot.

at 4–5; Gov’t’s Opp’n at 6. O’Donoghue’s 2012–2015 income tax returns were filed through a

process that was initiated abroad and completed in the Western District of Texas. O’Donoghue’s

2012 return was mailed by O’Donoghue from the UAE to the IRS service center in Austin, Texas,

while his 2013–2015 returns were sent electronically by Tax Preparer-1 from Serbia to the IRS

service center in Austin, Texas. 6 Gov’t’s Opp’n at 2. O’Donoghue’s 2012–2015 income tax

returns were sent to the IRS service center in Austin, Texas, because, as the Government explains,

that “is where all U.S. taxpayers living abroad must file their federal returns,” unless they are

enclosing a check or money order, “in which case they are supposed to send their tax returns to an

IRS office in Charlotte, North Carolina instead.” Id. at 2 n. 1.

6 The Government confirms that the “[p]rocessing codes on Defendant’s 2013 to 2015 tax returns indicate that the returns were in fact processed through the Austin, Texas service center.” Gov’t’s Opp’n at 2 n. 1.

18 It is undisputed that the false-subscription charges constitute allegations of a “continuing

offense.” See Def.’s Mot. at 4; Gov’t’s Opp’n at 4 (explaining that “[f]iling a false return” is a

“continuing offense,” meaning “venue is proper in any district in which the false return was

prepared and signed, as well as the district in which it was received and filed”). A “continuing

offense” is defined by statute as “[a]ny offense involving the use of the mails, transportation in

interstate or foreign commerce, or the importation of an object or person into the United States,”

and such offense may be prosecuted “in any district from, through, or into which such commerce,

mail matter, or imported object or person moves.” 18 U.S.C. § 3237(a). “By utilizing the doctrine

of a continuing offense, Congress may . . . provide that the locality of a crime shall extend over

the whole area through which force propelled by an offender operates.” United States v. Johnson,

323 U.S. 273, 275 (1944). This same statute creates a special rule for venue in false-subscription

cases brought under Section 7206(1): where venue for a Section 7206(1) offense “is based solely

on a mailing to the Internal Revenue Service, and prosecution is begun in a judicial district other

than the judicial district in which the defendant resides,” the defendant may “elect to be tried in

the district in which he was residing at the time the alleged offense was committed.” Id. § 3237(b).

Because O’Donoghue’s allegedly false income tax returns for 2012 through 2015 were

received and processed by the IRS service center in Austin, Texas, the false-subscription charges

were “committed,” at least in part, in the Western District of Texas. “Both the Supreme Court and

[the D.C. Circuit] have held that the place where a document is to be filed may be regarded as the

place where any asserted non-filing or misfiling occurred.” Sec. & Exch. Comm’n v. Savoy Indus.,

Inc., 587 F.2d 1149, 1155 (D.C. Cir. 1978) (citing Travis, 364 U.S. at 636) (other citations

omitted). That O’Donoghue was never physically located in Austin, Texas, does not impact this

conclusion. The Supreme Court has “long recognized” that “there may be a constructive presence

19 in a state, distinct from a personal presence, by which a crime may be consummated,” particularly

for continuing offenses like the false-subscription charges. United States v. Han, 280 F. Supp. 3d

144, 150 (D.D.C. 2017) (JEB) (quoting Hyde v. United States, 225 U.S. 347, 362 (1912),

superseded on other grounds by Peña–Rodriguez v. Colorado, 580 U.S. 206 (2017)). “The

constitutional requirement is as to the locality of the offense, and not the personal presence of the

offender.” Travis, 364 U.S. at 634 (citation omitted). “The focus for venue purposes, therefore,

is on the conduct not the actor.” Han, 280 F. Supp. 3d at 150 (emphasis in original). Here,

O’Donoghue is alleged to have consummated his false-subscription offense by filing allegedly

false returns with the IRS at its service center in Austin, Texas, “thereby propelling a force into”

the Western District of Texas. United States v. Rooney, 866 F.2d 28, 31 (2d Cir. 1989); Johnson,

323 U.S. at 275.

Accordingly, the Court concludes that, because the filing of O’Donoghue’s allegedly false

returns was completed in the Western District of Texas, the false-subscription charges were

“committed” in the Western District of Texas for purposes of venue.

2. Because the false-subscription charges were “committed” in the Western District of Texas, the District of Columbia is not a proper venue for those charges.

Now that the Court has identified the essential conduct elements of the false-subscription

charges and located the places of their alleged commission, it may determine whether the District

of Columbia is a proper venue for those charges. No relevant conduct is alleged to have occurred

in the District of Columbia. Accordingly, to establish venue in the District of Columbia for the

false-subscription charges, the Government relies exclusively on the “high seas” venue statute,

which directs the proper venue for “[t]he trial of all offenses begun or committed upon the high

seas, or elsewhere out of the jurisdiction of any particular State or district.” 18 U.S.C. § 3238.

20 The “high seas” venue statute must be read against the constitutional foundation for venue

in criminal trials, which is that the trial “of all Crimes . . . shall be held in the State where the said

Crimes shall have been committed.” U.S. Const. art. III, § 2, cl. 3; see also U.S. Const. amend.

VI (establishing the right to be tried by a jury “of the State and district wherein the [charged] crime

shall have been committed”). Congress’ residual power to direct venue through statutes like the

“high seas” venue statute is limited to the trial of crimes that are “not committed within any State.”

U.S. Const. art. III, § 2, cl. 3. Accordingly, to determine whether the “high seas” venue statute

establishes venue for a given offense, the Court must define the scope of the “high seas” venue

statute in relation to the constitutional foundation for venue.

The Court did just that in United States v. Jin, No. 23-cr-091-2 (CKK), 2025 WL 2409749

(D.D.C. Aug. 19, 2025). Regarding the constitutional requirements for venue, the Court

determined that, because an offense is “committed” wherever its “essential conduct elements” are

completed, an offense falls within Congress’ residual power to direct venue for crimes “not

committed within any State” only if all the “essential conduct elements” of the offense were

completed outside the United States. Jin, 2025 WL 2409749, at *18 (citing Rodriguez-Moreno,

526 U.S. at 279–80). Therefore, “[t]o avoid an unconstitutional application” of the “high seas”

venue statute, this Court interpreted the statute to apply “only to offenses that are sufficiently

‘begun or committed’ outside the United States that the ‘essential conduct elements’ of the offense

are completed abroad.” Id. at *21 (citing Rodriguez-Moreno, 526 U.S. at 279–80; 18 U.S.C. §

3238). In other words, “[i]f some of the essential conduct elements of an offense are completed in

the United States, then the offense lies outside of Congress’s constitutional authority to specify a

venue other than the place where a charged crime was committed.” Id.

21 The Court finds that the reasoning of Jin applies with full force here. Because an essential

conduct element of the false-subscription charges—filing—was completed domestically in the

Western District of Texas, the false-subscription charges fall beyond Congress’ authority to direct

venue for offenses “not committed within any State.” U.S. Const. art. III, § 2, cl. 3. The “high

seas” venue statute, therefore, cannot be used to establish venue in the District of Columbia for the

false-subscription charges. Accordingly, because the “high seas” venue statute is the only means

by which the Government may attempt to establish venue for the false-subscription charges in the

District of Columbia, it follows that the District of Columbia is not a proper venue for the false-

subscription charges.

In sum, the Court concludes that the District of Columbia is not a proper venue for the

false-subscription charges. The “high seas” venue statute does not establish venue in the District

of Columbia because the essential conduct element of filing occurred domestically in the Western

District of Texas. And there are no alternative means to establish venue in the District of Columbia

because there are no allegations of any relevant conduct occurring there. Accordingly, the Court

shall GRANT O’Donoghue’s [79] Motion to Dismiss for Lack of Venue with respect to the false-

subscription charges in Counts Five through Eight of the Indictment.

B. The District of Columbia is not a proper venue for the prosecution of Counts One through Four, which charge O’Donoghue with tax evasion for tax years 2012 through 2015.

O’Donoghue also moves to dismiss Counts One through Four of the Indictment for lack of

venue. These counts charge O’Donoghue with tax evasion for the years 2012 through 2015.

Indictment ¶¶ 21–22. Specifically, the Indictment alleges that, from at least in or about January 1,

2012, through in or about February 10, 2023, “in the District of Columbia and elsewhere,”

22 outside the United States”). The Court rejected this argument with respect to the false-subscription

charges, supra Section III.A, and it does so again here for the same reasons. 7 To reiterate: “[i]f

some of the essential conduct elements of an offense are completed in the United States, then the

offense lies outside of Congress’s constitutional authority to specify a venue other than the place

where a charged crime was committed.” Jin, 2025 WL 2409749, at *21. The filing of

O’Donoghue’s allegedly false returns is an essential conduct element for the tax evasion charges,

and that filing occurred in the Western District of Texas. 8 Accordingly, the “high seas” venue

statute cannot establish venue in the District of Columbia.

As an alternative, the Government argues that venue for the tax evasion charges is proper

in the District of Columbia under the general venue statute, which provides, in relevant part, that

Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.

18 U.S.C. § 3237(a). According to the Government, venue is proper under the general venue

statute because O’Donoghue “committed affirmative acts of evasion in D.C. when he made false

statements about his taxable income to law enforcement agents” during the February 2023

interview identified above. Gov’t’s Opp’n at 5. O’Donoghue objects to the Government’s framing

of his alleged February 2023 statements, arguing that these statements do not provide a basis for

establishing venue under the general venue statute because “the underlying alleged tax evasion

was complete when the tax returns were filed in June and October 2016,” Def.’s Mot. at 5, and

7 O’Donoghue raises the same objection to the Government’s attempt to establish venue under the “high seas” venue statute as he did with respect to the false-subscription charges. See Def.’s Reply at 4–5. 8 As the Court shall describe in more detail below, the essential conduct elements for the tax evasion charges include any affirmative act allegedly taken by O’Donoghue to evade or defeat the IRS’s assessment of his income tax for years 2012 through 2015. Since O’Donoghue is charged with attempting to evade assessment by filing allegedly false income tax returns that underreported his income, the filing of those returns is an essential conduct element of the offense.

24 “[a]lleged false statements made to criminal investigators more than six years after the tax returns

were filed and the alleged evasion was completed cannot, as a matter of law, constitute acts of a

long-since-completed evasion offense,” Def.’s Reply at 4–5.

Therefore, to determine whether the District of Columbia is a proper venue for the tax

evasion charges, the Court must determine whether O’Donoghue’s alleged February 2023 false

statements in the District of Columbia constitute an affirmative act of evasion with respect to the

IRS’s assessment of O’Donoghue’s income tax liability for 2012 through 2015. To make this

determination, the Court must first identify the nature of O’Donoghue’s alleged tax evasion

offense and its essential conduct elements, and then discern whether O’Donoghue’s alleged

February 2023 false statements can reasonably be characterized as part of that charged offense.

Accordingly, because the nature of the tax evasion charges against O’Donoghue delineates the

scope of the “act or acts constituting” those charges, Cabrales, 524 U.S. at 6–7, the Indictment’s

authority to define the conduct constituting the charged tax evasion, while broad, is not unlimited,

United States v. Pumphrey, 831 F.2d 307, 309 (D.C. Cir. 1987) (“. . . our own and Supreme Court

precedent has consistently held that excess allegations in an indictment that do not change the basic

nature of the offense charged need not be proven and should be treated as mere surplusage.”)

(citations omitted).

1. O’Donoghue is charged with attempting to evade or defeat the IRS’s “assessment” of his income tax liability for tax years 2012 through 2015, and, therefore, the “essential conduct elements” of the charged tax evasion shall include any affirmative act taken by O’Donoghue that would have the likely effect of evading the IRS’s assessment for those years.

Again, proper venue is determined according to the locus delicti of a given offense. El-

Saadi, 549 F. Supp. 3d at 156 (citing Morgan, 393 F.3d at 196). And the locus delicti of an offense

“must be determined from the nature of the crime alleged and the location of the act or acts

constituting it.” Cabrales, 524 U.S. at 6–7 (quoting Anderson, 328 U.S. at 702). Accordingly, to 25 determine whether O’Donoghue’s alleged February 2023 false statements establish venue for the

tax evasion charges in the District of Columbia under the general venue statute, the Court must

first determine the “nature” of O’Donoghue’s alleged tax offense and identify “the act or acts

constituting” that offense. Id.; Rodriguez-Moreno, 526 U.S. at 279.

Here, Counts One through Four charge O’Donoghue with tax evasion under 26 U.S.C. §

7201, which provides that “Any person who willfully attempts in any manner to evade or defeat

any tax imposed by this title or the payment thereof shall . . . be guilty of a felony[.]” 26 U.S.C. §

7201. The “tax” that O’Donoghue is charged with attempting to evade or defeat is his personal

income tax for tax years 2012 through 2015. Indictment ¶¶ 21–22.

The nature of a tax evasion offense under Section 7201 can take one of two forms. On its

face, Section 7201 prohibits any willful attempt to evade or defeat “any tax” or “the payment

thereof.” 26 U.S.C. § 7201. The Supreme Court has therefore interpreted Section 7201 to

“include[] two offenses: ‘the offense of willfully attempting to evade or defeat the assessment of

a tax as well as the offense of willfully attempting to evade or defeat the payment of a tax.’”

Kawashima v. Holder, 565 U.S. 478, 488 (2012) (quoting Sansone, 380 U.S. at 354) (emphasis in

original). In other words, while Section 7201 establishes the single offense of tax evasion, “[t]here

is a distinction between willfully attempting to evade the assessment of the tax and willfully

attempting to evade or defeat the payment of the tax” under Section 7201. United States v. Conley,

826 F.2d 551, 557 (7th Cir. 1987) (emphasis in original) (describing them as “separate

offense[s]”). 9 For example, these two offenses often “require different elements of proof.”

McLaughlin, 126 F.3d at 136.

9 See also United States v. McLaughlin, 126 F.3d 130, 136 (3d Cir. 1997) (describing them as “two distinct offenses”); United States v. Schoppert, 362 F.3d 451, 454 (8th Cir. 2004) (explaining that they are “two separate types of offenses”); United States v. Hogan, 861 F.2d 312, 315 (1st Cir. 1988) (“Section 7201 defines two distinct crimes . . .”); Bussell v. Comm’r, 130 T.C. 222, 240 (2008) (“We note that section 7201 encompasses two closely related but

26 The offense of willfully attempting to evade or defeat the assessment of a tax—which the

Court refers to as assessment-evasion—concerns “efforts to shield taxable income to prevent the

IRS from determining one’s tax liability.” Root, 585 F.3d at 151. 10 Whatever the specific conduct

charged, 11 “[e]vading the assessment of an income tax can be accomplished only through a course

of action that includes underreporting of income.” United States v. Schoppert, 362 F.3d 451, 456

(8th Cir. 2004). On the other hand, the offense of willfully attempting to evade or defeat the

payment of a tax—payment-evasion—concerns “conduct designed to place assets out of reach to

prevent the IRS from settling one’s tax liability.” Root, 585 F.3d at 151. In short, between the

“two distinct crimes” of tax evasion, assessment-evasion describes an attempt to frustrate the IRS’s

ability to ascertain a tax liability, while payment-evasion describes an attempt to frustrate the IRS’s

ability to collect an already-ascertained tax liability. Hogan, 861 F.2d at 315; Root, 585 F.3d at

151.

The tax evasion charges against O’Donoghue are assessment-evasion charges. All the

“affirmative acts of evasion” charged in the Indictment relate to the central allegation that

O’Donoghue underreported his income for tax years 2012 through 2015. O’Donoghue is charged

with the affirmative acts of underreporting his income by using corporate funds for personal

expenses from 2013 to 2015 and, in 2016, causing the preparation and filing of false income tax

returns with the IRS for the tax years 2012 through 2015. Indictment ¶ 22. These charged

affirmative acts allegedly “concealed approximately $1 million of [O’Donoghue’s] income,”

which led to an erroneous assessment of O’Donoghue’s tax liability that caused the IRS to pay out

distinct crimes . . .”). 10 See also Hogan, 861 F.2d at 315 (citing United States v. Dack, 747 F.2d 1172, 1174 (7th Cir.1984)); United States v. Mal, 942 F.2d 682, 687 (9th Cir. 1991) (collecting cases) (citations omitted). 11 Such efforts could include, for example, “failing to file a return, filing a false return, failing to keep records, concealing income or other means.” Mal, 942 F.2d 682, 687; Lawn v. United States, 355 U.S. 339, 343 (1958).

27 refunds to O’Donoghue that he was purportedly not entitled to. Id. ¶ 15. The charges, in a nutshell,

are quintessential assessment-evasion charges because they allege that O’Donoghue attempted to

evade or defeat the IRS’s “computation of his tax liability in tax years 2012, 2013, 2014, and

2015.” Id. ¶ 22(d).

To prove assessment-evasion charges, 12 the Government must show (i) the existence of a

tax deficiency; (ii) an affirmative act by the defendant constituting an evasion or attempted evasion

of the assessment of a tax; and (iii) willfulness on the part of the defendant while completing the

requisite affirmative act. See Sansone, 380 U.S. 343, 351; United States v. Shorter, 608 F. Supp.

871, 874 (D.D.C. 1985), aff’d, 809 F.2d 54 (D.C. Cir. 1987). “Congress did not define or limit the

methods by which a willful attempt to defeat and evade [taxes] might be accomplished,” and

therefore the essential conduct for tax evasion includes any affirmative act with a “tax-evasion

motive.” Han, 280 F. Supp. 3d at 150 (quoting Spies, 317 U.S. at 499). Accordingly, considering

the nature of the assessment-evasion charges against O’Donoghue, the Court concludes that the

essential conduct for these charges shall consist of “any affirmative act” that O’Donoghue is

charged to have completed with a motive to evade the IRS’s assessment of his income tax for

2012–2015. Id.; Rodriguez-Moreno, 526 U. S. at 278–80.

2. O’Donoghue’s alleged February 2023 false statements are not affirmative acts of the charged assessment-evasion because they did not have the likely effect of evading or defeating the IRS’s assessment of his income tax liability for tax years 2012 through 2015.

As referenced above, the nature of the assessment-evasion charges against O’Donoghue

delineates the scope of the “act or acts constituting” those charges. Cabrales, 524 U.S. at 6–7.

12 Although assessment-evasion and payment-evasion often “require different elements of proof,” McLaughlin, 126 F.3d at 136, the essential elements for both offenses are structurally the same.

28 diverting corporate funds for personal use”) , aff’d, 662 F.3d 1226 (D.C. Cir. 2011). Furthermore,

the second and third charged acts of evasion—that O’Donoghue provided false information to Tax

Preparer-1 and caused his allegedly false returns to be filed with the IRS—constitute the core of

the charged assessment-evasion. The Court need not explain why charged acts related to the filing

of income tax returns that allegedly “concealed approximately $1 million of income” are directly

relevant to the IRS’s assessment of tax liability on that income. Because these charged acts of

evasion logically relate to the IRS’s ability to assess O’Donoghue’s income tax liability for 2012

through 2015, there is no issue with characterizing them as part of the charged assessment-evasion.

O’Donoghue’s alleged February 2023 false statements, however, do not have a comparable

connection to the underlying assessment-evasion charges. According to the Indictment, “[w]hen

questioned about specific information he provided to Tax Preparer-1 about his income in 2015,”

O’Donoghue allegedly made the following false statements regarding the $684,226 lump sum

payment he received at the end of his employment with Company-1: first, that a portion had been

intended for his former executive assistant, and that he had paid her $20,000 to $30,000 out of the

sum; second, that a portion had been an investment by a shareholder of Company-1 into

O’Donoghue’s business enterprise; and third, that a portion had been reimbursement for business

expenses he incurred on his personal credit card. Id. ¶ 19. These are charged as false statements

because the entire lump sum payment had allegedly been O’Donoghue’s severance from

Company-1, id., and the Indictment connects them to the assessment-evasion charges by claiming

that they “had the tendency to impact the investigation . . . into [O’Donoghue’s] income from

Company-1 and tax liability in years 2012, 2013, 2014, and 2015,” id. ¶ 20. On the face of the

Indictment, however, this connection is tenuous.

30 To start, there is a significant temporal gap between O’Donoghue’s alleged February 2023

false statements and the remainder of the alleged acts constituting the charged assessment-evasion.

O’Donoghue’s alleged use of corporate funds for personal expenses would have occurred at some

point between “mid-2013” and “early 2015,” as that is when he was employed by Company-1.

Indictment ¶¶ 7–9. And the charged conduct regarding the filing of his allegedly false returns

would have occurred between June 2016, when O’Donoghue allegedly “engaged” Tax Preparer-

1, and October 2016, when the last of O’Dononghue’s allegedly false returns were filed. Id. ¶¶

12–14. At the very least, then, there is more than a six-year gap between O’Donoghue’s alleged

February 2023 false statements and the remainder of the acts constituting the charged assessment-

evasion. This gap gives reason to question whether O’Donoghue’s alleged February 2023 false

statements are indeed related to the underlying assessment-evasion charges.

Further straining the connection between O’Donoghue’s alleged February 2023 false

statements and the underlying assessment-evasion charges is the Indictment’s indication that the

IRS had completed its assessment of O’Donoghue’s 2012–2015 income tax liability before the

February 2023 interview took place. According to the Indictment, the allegedly false information

reported in O’Donoghue’s income tax returns for tax years 2012 through 2015 made it appear as

though O’Donoghue was entitled to refunds on estimated payments that O’Donoghue had

previously made to the IRS. Indictment ¶ 14. As a result, “[t]he IRS paid out a significant portion

of the refund amounts by depositing the funds directly into [O’Donoghue’s] bank account.” Id. ¶

15. These allegations indicate that the IRS finalized its assessment of O’Donoghue’s income tax

liability prior to the February 2023 interview, which would mean that the object of O’Donoghue’s

charged assessment-evasion was already complete at the time he allegedly made the February 2023

false statements. Because the IRS had already completed the assessment O’Donoghue allegedly

31 sought to evade, it is not clear how O’Donoghue’s alleged February 2023 false statements could

have formed a part of the charged assessment-evasion.

The details of the February 2023 interview also weaken the connection between

O’Donoghue’s alleged February 2023 false statements and the underlying assessment-evasion

charges, as they cast a new light on the Indictment’s claim that O’Donoghue’s alleged false

statements “had the tendency to impact the investigation . . . into [his] income from Company-1

and tax liability in years 2012, 2013, 2014, and 2015.” Id. ¶ 20. That the February 2023 interview

was conducted by “prosecutors and law enforcement agents” at Department of Justice Offices in

Washington, D.C., pursuant to a written proffer agreement, id. ¶ 16, suggests that the

“investigation” allegedly “impact[ed]” by O’Donoghue’s alleged false statements was an

investigation for purposes of criminal prosecution, not income tax assessment, id. ¶ 20. Criminal

tax investigations are separate and distinct from civil tax investigations because, as courts have

consistently recognized, “[s]ignificantly different rights, responsibilities, and expectations apply

to civil audits and criminal tax investigations.” United States v. Grunewald, 987 F.2d 531, 534

(8th Cir. 1993). 13 Therefore, an IRS criminal investigation is, by definition, an investigation done

for purposes other than civil tax assessment.

13 Courts have repeatedly emphasized the distinction between civil investigations/audits (conducted by IRS “revenue agents”) and criminal investigations/prosecutions (conducted by IRS-CID, or “special agents”). See, e.g., id. (“It is clear that the IRS may not develop a criminal investigation under the auspices of a civil audit. Significantly different rights, responsibilities, and expectations apply to civil audits and criminal tax investigations.”); United States v. Tweel, 550 F.2d 297, 300 (5th Cir. 1977) (holding that evidence should have been suppressed because it was obtained by the IRS’s “shocking conduct” of using a civil revenue agent to “mask[] the undeniable criminal nature of [an] investigation”); United States v. Peters, 153 F.3d 445, 454 (7th Cir. 1998) (explaining that “the IRS, in an effort to comply with Tweel and its progeny, has constructed a ‘Chinese wall’ between its civil examination and criminal investigation divisions”); United States v. Lehman, 468 F.2d 93, 105 (7th Cir.1972) (stating that “the appellate court cases dealing with fraud in tax situations warn that revenue agents must not affirmatively mislead a taxpayer into believing that the investigation is exclusively civil in nature and will not lead to criminal consequences” (collecting cases)), cert. denied, 409 U.S. 967 (1972); United States v. McKee, 192 F.3d 535, 541 (6th Cir. 1999) (“IRS regulations explicitly prohibit a revenue agent from developing a criminal case against a taxpayer under the guise of a civil investigation.”); United States v. Adams, 396 F. Supp. 364, 367 n. 3 (S.D. Ohio 1975) (“Civil investigations are conducted by a different division within the IRS than that which pursues criminal investigations. Civil investigators are known as Revenue Agents while those of the criminal Intelligence Division are referred to as Special Agents.”).

32 Furthermore, any inference that O’Donoghue’s alleged false statements formed a part of

his alleged assessment-evasion is both weakened by the charge that, during the 2023 interview,

O’Donoghue “admitted that the income reported on his 2012 to 2015 tax returns was incorrect,”

and narrowed by the fact that his alleged false statements related only to “information he provided

to Tax Preparer-1 about his income in 2015,” specifically about the alleged lump sum payment.

Id. ¶¶ 16–20. In other words, not only is the inference that O’Donoghue lied at the interview to

evade assessment on his 2012–2015 income in tension with O’Donoghue’s alleged admission that

his 2012–2015 returns underreported his income, but to the extent such an inference can be drawn,

it would only extend to O’Donoghue’s alleged attempt to evade assessment on his income tax for

the year 2015, as that is the only year for which the assessment of his income is implicated by his

alleged false statements. See Morgan, 393 F.3d 192, 195 (government must show “that venue is

proper with respect to each count charged”).

Accordingly, upon review of the Indictment, the Court does not see how O’Donoghue’s

alleged February 2023 false statements could have furthered the charged assessment-evasion. The

question now is whether this prevents the Court from characterizing O’Donoghue’s alleged false

statements as “conduct constituting” the charged assessment-evasion for purposes of venue.

Rodriguez-Moreno, 526 U.S. at 279 (to determine venue, “a court must initially identify the

conduct constituting the offense (the nature of the crime)”). Upon considering this question, the

Court concludes that, due to the lack of connection between O’Donoghue’s alleged February 2023

false statements and the charged assessment-evasion, it cannot treat the alleged false statements as

conduct constituting the charged assessment-evasion for purposes of venue.

The Court reaches this conclusion based on the specific nature of the charged assessment-

evasion rather than the broader principle that O’Donoghue advocates. O’Donoghue urges the

33 Court to categorically separate his alleged February 2023 false statements from the assessment-

evasion charges on the basis that the assessment-evasion “was complete when [his] tax returns

were filed.” Def.’s Mot. at 5. As O’Donoghue points out, many courts have held that, “when tax

evasion involves the filing of a fraudulent tax return, the offense is complete upon filing.” United

States v. Uscinski, 369 F.3d 1243, 1247 (11th Cir. 2004) (citing Sansone, 380 U.S. 343). 14 Most

notably, in Sansone v. United States, the Supreme Court, noting the distinction between

assessment-evasion cases and payment-evasion cases, explained that where an indictment charges

“an attempt to evade income taxes by defeating the assessment” for a given year, the charged

assessment-evasion is “complete as soon as the false and fraudulent understatement of taxes [is]

filed.” 380 U.S. 343, 354 (holding that defendant could not defend against assessment-evasion

charge for a given year by arguing that they intended to pay the tax at a later date because the

offense was complete upon filing) (inline parenthetical removed) (citing Beacon Brass Co., 344

U.S. at 46; Spies, 317 U.S. at 498–499). Shortly after Sansone, the Supreme Court held, in United

States v. Habig, 390 U.S. 222 (1968), that the charge of attempting to evade taxes by filing of a

false return under Section 7201 is “committed at the time the return is filed.” 390 U.S. at 223.

There is therefore some support for the general rule advanced by O’Donoghue.

14 See also id. (“Because [defendant’s] tax evasion was complete upon the filing of his tax return, his false statements to the government were not a continuation of his crime.”); Sansone, 380 U.S. at 354 (explaining that tax evasion under Section 7201 “was complete as soon as the false and fraudulent understatement of taxes . . . was filed”); United States v. Habig, 390 U.S. 222, 223 (1968) (finding that tax evasion charges under Section 7201 involving the evasion of taxes by filing a false return and the preparation and presentation of a false return “are committed at the time the return is filed”); United States v. Marchant, 774 F.2d 888, 891 (8th Cir. 1985) (citing Habig, 390 U.S. at 223) (“The crime of wilfully [sic] attempting to evade or defeat tax liability is completed when the taxpayer files the tax return with the Internal Revenue Service.”); Grunewald v. United States, 353 U.S. 391, 406 n.19 (1957) (reasoning that tax evasion charges were governed by a six-year statute of limitations that “began to run when the last return . . . was filed by the taxpayers”); Han, 280 F. Supp. 3d at 149 (quoting Spies, 317 U.S. at 499) (explaining that tax evasion under Section 7201 “is not completed until the person’s tax return is filed, signed, and mailed, but it begins whenever the defendant makes a ‘willful attempt to defeat and evade’ tax liability”).

34 However, O’Donoghue’s proposed general rule—that tax evasion charges based on the

filing of false or fraudulent returns are necessarily complete at the time of filing—is also in tension

with Section 7201’s broad prohibition against any attempt to evade or defeat any tax or the

payment thereof “in any manner,” 26 U.S.C § 7201, which has been interpreted to apply to “any

conduct, the likely effect of which would be to mislead or to conceal,” that is accompanied by a

“tax-evasion motive,” Spies, 317 U.S. at 499. In light of this expansive prohibition, a number of

circuit courts have explained that the statute of limitations for tax evasion begins to run upon the

“last evasive act,” and that “evasive acts following the filing of a return may be considered part of

the offense.” 15 United States v. Anderson, 319 F.3d 1218, 1220 (10th Cir. 2003). The Court,

however, is not aware of any caselaw applying the “last evasive act” analysis to the question at

issue here—i.e., whether, for purposes of venue, post-filing conduct can be considered part of a

charged assessment-evasion offense that is based on an allegedly false filing—and there appears

to be some disagreement as to whether the analysis applies only to payment-evasion cases or

extends to assessment-evasion cases based on the filing of allegedly false returns. Compare

Uscinski, 369 F.3d at 1247 n.* (holding that the analysis does not apply to assessment-evasion

cases based on false filing because “[w]here a tax return has been filed, Sansone applies; and the

tax evasion is complete upon filing”), with Orrock, 23 F.4th at 1209 (holding that “the last

affirmative act of evasion rule applies to both cases” of payment-evasion and assessment-evasion).

15 See, e.g., United States v. Wilson, 118 F.3d 228, 236 (4th Cir. 1997) (“The limitations period for a violation of § 7201 begins to run on the date of the last affirmative act of tax evasion.”); United States v. Ferris, 807 F.2d 269, 271 (1st Cir. 1986) (holding that, in tax evasion prosecution based on defendant’s alleged willful failure to pay taxes due, “it is the date of the latest act of evasion, not the due date of the taxes, that triggers the statute of limitations”); United States v. Dandy, 998 F.2d 1344, 1355 (6th Cir.1993) (holding that, for charges based on the filing of allegedly false income tax returns, the defendant’s conduct a year after filing—filing corporate returns that disguised income from the relevant years and refusing to comply with IRS subpoena for information regarding income for relevant years— constituted “the last affirmative evasive acts” of the charged evasion because “the IRS would very likely have discovered defendant’s income tax fraud” had it not been for the later evasive acts); United States v. Orrock, 23 F.4th 1203, 1207 (9th Cir. 2022) (“. . . under § 7201, the government may prosecute a defendant for any acts furthering the evasion of taxes, even after all the elements of a § 7201 offense have first been met.”).

35 But the parties have not addressed these issues, and the Court need not reach them to resolve the

matter at hand. For present purposes, the Court concludes that, while an assessment-evasion

offense based upon the filing of an allegedly false return will typically be complete upon the filing

of said return, there may be certain circumstances where a post-filing act of evasion constitutes a

part of such an offense. 16

This case does not present one of those circumstances. As the Court explained above, the

allegations regarding O’Donoghue’s alleged February 2023 false statements are an outlier among

the rest of the affirmative acts of evasion alleged in the Indictment. Every other affirmative act of

evasion charged in the Indictment is alleged to have occurred within the four-year span of 2012 to

2016, while the charged false statements allegedly occurred more than six years later.

Furthermore, the object of the charged assessment-evasion—the underassessment of

O’Donoghue’s income tax liability for 2012 through 2015—had been achieved prior to the

February 2023 interview, meaning there was no assessment for O’Donoghue to evade or defeat at

the time he allegedly made the false statements. And even if there were some hypothetical way

for a 2023 interview to impact the IRS’s completed assessment of a tax for the years 2012 through

2015, the context of the Government’s February 2023 interview with O’Donoghue shows that it

was related to criminal prosecution rather than tax assessment. Accordingly, on the Court’s

reading of the Indictment, O’Donoghue’s alleged false statements were not affirmative acts in

furtherance of the charged assessment-evasion for tax years 2012 through 2015.

16 For instance, there may be a circumstance where an individual files an allegedly false return with the IRS and then makes false statements to civil IRS adjustment personnel working on the assessment of the individual’s allegedly false return. Or an individual may file an allegedly false return and then file an allegedly false amendment to that return before the IRS finalizes its assessment on the original return. In these circumstances, it may be reasonable to argue that the post-filing conduct (i.e., either the false statements to adjustment personnel or the false amended return) is a continuation of earlier alleged false filing.

36 The Government has not identified any caselaw to warrant a different reading of the

Indictment. In its Opposition, the Government cites United States v. Thompson, 518 F.3d 832

(10th Cir. 2008), and United States v. Shorter, 608 F.Supp. 871, 874 (D.D.C. 1985), aff’d, 809

F.2d 54 (D.C. Cir. 1987), for the proposition that “it is not uniformly true that the crime of tax

evasion must be complete when a false return is filed.” Gov’t’s Opp’n at 5. As explained above,

the Court has accepted this general legal proposition for present purposes. These cases, however,

do not show why it should apply to the facts here.

In United States v. Thompson, the defendants were charged with evading the assessment

of personal income tax for the tax years 1992 through 1997 by filing individual income tax returns

that failed to report certain commissions as income. 518 F.3d at 838. In 1998, the defendants filed

“several sets of amended corporate returns, in which they attempted to claim that the commissions

were actually corporate income, rather than personal income.” Id. at 846, 852. This claim was

false. In determining when the statute of limitations began to run for the assessment-evasion

charges regarding defendants’ personal income, the Tenth Circuit concluded that the limitations

period began in 1998 because the false amended corporate returns could reasonably be viewed as

an affirmative act of evasion with respect to the charged personal income assessment-evasion. Id.

at 856–57. In other words, the Tenth Circuit held that filing a false corporate return to hide income

that was not reported on a previously filed personal return can constitute an affirmative act of

assessment-evasion with respect to the previously filed personal return. 17

17 A similar holding can be found in United States v. Orrock, 23 F.4th 1203 (9th Cir. 2022), which the Government cites to in a footnote in its Sur-Reply for the proposition that it can prosecute O’Donoghue for any acts furthering the evasion of taxes, even if those acts allegedly occurred after all the necessary elements of the assessment-evasion had been met. See Gov’t’s Sur-Reply at 3 n.1 (citing id. at 1207 (“under § 7201, the government may prosecute a defendant for any acts furthering the evasion of taxes, even after all the elements of a § 7201 offense have first been met.”) [sic]). In Orrock, the defendant was charged with assessment-evasion for the year 2007 because his personal return for that year allegedly failed to report income from the sale of a property. Id. at 1205–06. In 2011, the defendant filed a partnership tax return that underreported the gain from the sale of the property, thereby disguising income that should have been included in the 2007 assessment. Id. The Ninth Circuit appeared to assume the district court’s conclusion

37 To the extent its reasoning applies in the venue context, 18 Thompson reinforces the

principle that, in assessment-evasion cases premised on the filing of allegedly false returns, post-

filing conduct must bear some logical relationship to the underlying assessment-evasion if it is to

be considered an affirmative act of evasion. The ways in which the post-filing conduct in

Thompson had such a relationship highlight the ways in which O’Donoghue’s post-filing

statements do not. First, the post-filing corporate returns in Thompson were filed shortly after the

false personal returns that gave rise to the underlying assessment-evasion, whereas O’Donoghue’s

alleged post-filing false statements were allegedly made more than six years after the remaining

acts of assessment-evasion. Thompson, 518 F.3d at 852–57. More important than this temporal

difference, however, is the contrast between the effect of the post-filing conduct in Thompson and

O’Donoghue’s alleged post-filing statements. The post-filing corporate returns in Thompson were

filed directly with the IRS, which was responsible for completing the assessment at the heart of

the underlying assessment-evasion, and they directly impacted the IRS’s ability to assess the

defendants’ income tax liability because they fraudulently disguised the defendants’ personal

income as corporate income. Thompson, 518 F.3d at 852–57. Here, on the other hand,

O’Donoghue’s alleged false statements were made to prosecutors and law enforcement agents

responsible for bringing criminal charges, not assessing tax liability, and the alleged statements

could not have impacted the IRS’s assessment of O’Donoghue’s relevant income tax liability

because the IRS had completed that assessment at some point before O’Donoghue allegedly made

the false statements in question. Accordingly, the facts of Thompson are readily distinguishable

that the government had sufficiently alleged that the 2011 partnership filing constituted an affirmative act of evasion with respect to the 2007 assessment-evasion. Id. at 1208. The Ninth Circuit instead focused on the legal question of whether the statute of limitations for assessment-evasion offenses based on the filing of allegedly fraudulent returns begins to run on the date of filing or the date of the last known act of evasion, holding that it begins to run on the date of the last known act of evasion. Id. at 1205–1209. 18 Elsewhere, the Government argues that the Court should not apply reasoning from statute-of-limitations cases because the statute of limitations “has a different set of rules” from venue. Gov’t’s Sur-Reply at 3.

38 and do not undermine the Court’s finding that O’Donoghue’s alleged February 2023 false

statements are not a part of the charged assessment-evasion.

The Government does not explain its citation to United States v. Shorter, but a review of

the case shows that it bears little relevance to the issues at hand. To start, Shorter was a payment-

evasion case; the defendant “was charged with one felony count of willful attempt to evade the

payment of income taxes due for the years 1972 through 1983.” 809 F.2d 54, 56; id. at 57

(explaining that the IRS “obtained at least nine civil tax judgments against appellant, but because

of the cash method of operation, the IRS was never able to collect on any of these judgments”).

Furthermore, the issue in Shorter was whether an indictment charging a multi-year payment-

evasion scheme as one count was duplicitous. Id. at 56–57. The D.C. Circuit concluded that such

an indictment was permissible, explaining that “tax evasion covering several years may be charged

in a single count as a course of conduct in circumstances such as those here where the underlying

basis of the indictment is an allegedly consistent, long-term pattern of conduct directed at the

evasion of taxes for these years.” Id. at 56. That is not the situation at hand. Accordingly, other

than the fact of the Government’s citation, it is not clear how Shorter is relevant.

The Court also granted the Government the opportunity to file a Sur-Reply. See Order,

Dkt. No. 109. But the few additional cases cited by the Government in its Sur-Reply do little to

support its argument. The Government cites United States v. Beacon Brass Co., 344 U.S. 43

(1952), and United States v. Hesser, 800 F.3d 1310 (11th Cir. 2015), for the general legal

proposition that “[m]aking false statements to IRS agents is a classic act of evasion.” Gov’t’s Sur-

Reply at 2. Again, the validity of the Government’s general legal proposition is not in dispute;

rather, as the Court has explained, the issue with characterizing O’Donoghue’s alleged false

statements as a part of the charged assessment-evasion is that O’Donoghue’s alleged false

39 statements are not sufficiently connected to the underlying assessment-evasion charges. Neither

of these cases suggest otherwise.

In Beacon Brass, the Supreme Court held that false statements could form the basis of both

a tax evasion charge and a false statements charge. 344 U.S. at 45–46. In doing so, the Court

explained that the language of Section 7201 19 was “broad enough to include false statements made

to Treasury representatives for the purpose of concealing unreported income,” emphasizing that

“[t]he purpose to evade taxes is crucial under this section.” Id. But the Court did not elaborate on

the requisite connection between alleged false statements and the underlying tax evasion charge,

nor did it express an opinion on whether the false statements charged in the underlying case were

sufficiently connected to the charged tax evasion. Id. at 47 (“We do not consider these questions

because our jurisdiction on this appeal is limited to review of the District Court’s construction of

the statute . . . .”). Accordingly, Beacon Brass simply establishes the general legal proposition that

the Court has already accepted.

Hesser, on the other hand, was a payment-evasion case that involved a single count of tax

evasion relating to a variety of actions the defendant took to avoid paying income taxes he owed

for 2001 through 2003. 800 F.3d 1310, 1314. The Eleventh Circuit affirmed the district court’s

finding that the defendant’s filing of an allegedly fraudulent 2007 tax return was an affirmative act

taken in furtherance of the charged 2001–2003 payment-evasion. Id. at 1324. The court reached

this conclusion because the allegedly fraudulent 2007 return had the direct effect of eliminating

the outstanding tax liability that formed the basis of the underlying payment-evasion charge. At

the time the defendant filed the allegedly fraudulent 2007 return, the IRS had opened an

enforcement action against defendant for his unpaid tax deficiencies for 2001 through 2003 and

19 The case specifically dealt with a predecessor statute that employed the same language.

40 filed federal tax liens against the defendant. Id. at 1317–18. By allegedly overstating his

entitlement to a refund on his 2007 return, the defendant caused the IRS to process the refund, pay

off his tax liabilities for 2001 through 2003 with funds from the refund, release the federal tax

liens, close its enforcement case, and send defendant the residual amount of the remaining refund

once his liabilities were settled. Id. Put simply, Hesser stands for the proposition that in a

payment-evasion case for certain tax years, a fraudulent tax return filed in subsequent years can

constitute an affirmative act of payment-evasion if that subsequent filing misleads the IRS into

determining that the outstanding liability at the core of the payment-evasion charge has been

settled. That proposition does not have much bearing on the present case.

All in all, the Government has not shown that the “likely effect” of O’Donoghue’s alleged

February 2023 false statements was to mislead the IRS in its assessment of his 2012–2015 income

tax or to conceal income from the IRS relevant to its assessment for those years. An alleged act

of evasion must have some logical connection to the underlying tax evasion charges. That

connection is not present here. The February 2023 interview occurred more than six years after

the rest of the acts constituting the charged assessment-evasion. By this time, there was no 2012–

2015 assessment left for O’Donoghue to evade because the IRS had already completed its

assessment and processed O’Donoghue’s refunds. This fact supports the conclusion that the

February 2023 interview, which was conducted by prosecutors and federal investigators rather

than by civil tax adjustment personnel, was in service of a criminal investigation rather than a tax

assessment.

By characterizing O’Donoghue’s alleged February 2023 false statements as part of the

charged 2012–2015 assessment-evasion, the Government overlooks the distinction between

conduct meant to conceal the commission of a completed crime and conduct meant to further the

41 commission of a crime still in progress. As the Supreme Court explained in Grunewald v. United

States, 353 U.S. 391 (1957), “a vital distinction must be made between acts of concealment done

in furtherance of the main criminal objectives,” and “acts of concealment done after these central

objectives have been attained, for the purpose only of covering up after the crime.” Id. at 405.

In Grunewald, the Supreme Court held that acts of concealment done after the central

criminal objective of a conspiracy has been achieved cannot, without more, extend the life of the

conspiracy. 353 U.S. at 406. The Grunewald defendants were charged and convicted of

conspiring to defraud the United States in its administration of the internal revenue laws by bribing

a tax official to obtain “no prosecution” rulings 20 on two tax evasion cases that were then under

investigation. Id. at 394–99. On appeal, the defendants argued that their prosecution was barred

by the applicable three-year statute of limitations because the indictment against them was returned

more than three years after the final “no prosecution” ruling was obtained. Id. at 397–98. The

government argued that the conspiracy continued beyond the final “no prosecution” ruling because

the conspirators engaged in ongoing acts of concealment within the limitations period, including

efforts to destroy records, mislead investigators, and silence witnesses during congressional and

grand jury inquiries. Id. at 395–99. It also argued, in the alternative, that the purpose of the

charged conspiracy was to avoid tax prosecution altogether, so the limitations period did not begin

to run until the end of the limitations period for the underlying tax offense. Id.

The Supreme Court rejected the government’s arguments. As to the first, the Court held

that the duration of a conspiracy cannot “be indefinitely lengthened merely because the conspiracy

is kept a secret, and merely because the conspirators take steps to bury their traces, in order to

avoid detection and punishment after the central criminal purpose has been accomplished.”

20 The Court defined a “no prosecution” ruling as “an internal decision by the investigative branch of the Bureau of Internal Revenue not to press criminal charges against a taxpayer.” Grunewald, 353 U.S. at 395 n. 5.

42 Grunewald, 353 U.S. at 405. That is because “acts of covering up can by themselves indicate

nothing more than that the conspirators do not wish to be apprehended—a concomitant, certainly,

of every crime since Cain attempted to conceal the murder of Abel from the Lord.” Id. at 405–06.

Accordingly, if the objective of the defendants’ conspiracy was to obtain the “no prosecution”

rulings, then acts taken to conceal the conspiracy after the final “no prosecution” ruling was

obtained were not, without more, acts taken in furtherance of the conspiracy. Id. As to the

government’s alternative argument that the objective of the conspiracy was to evade tax

prosecution altogether, the Court explained that it could not accept this argument because the

district court’s charge to the jury “failed completely to distinguish between concealment in order

to achieve the central purpose of the conspiracy (that is, the immunization of the taxpayers from

tax-evasion prosecution), and concealment intended solely to cover up an already executed crime

(that is, the obtaining of the ‘no prosecution’ rulings).” Id. at 413–14. If the government wanted

to pursue this argument on remand, then the jury had to be instructed that “acts of concealment

could be taken as furthering the conspiracy only if the basic criminal aim of the conspiracy was

not yet attained,” for such acts “are meaningful only if they are within the scope of the

conspiratorial agreement.” Id. at 414.

Grunewald is instructive to the issue at hand. For one thing, Grunewald suggests that

O’Donoghue’s charged evasion was complete once his allegedly false returns were filed with the

IRS in 2016. See Grunewald, 353 U.S. at 407 n. 19 (explaining that the statute of limitations on

the underlying tax evasion cases “began to run when the last return . . . was filed by the taxpayers”).

But more importantly, Grunewald directs this Court to observe the “vital distinction” that “must

be made” between “acts of concealment done in furtherance of the main criminal objectives” of a

charged offense, and “acts of concealment done after these central objectives have been attained,

43 for the purpose only of covering up after the crime.” Id. at 405. The alleged objective of

O’Donoghue’s charged tax evasion was to evade the IRS’s assessment of his income tax for tax

years 2012 through 2015. On the facts here, this alleged objective would have been achieved

before the February 2023 interview when the IRS assessed O’Donoghue’s 2012–2015 income tax

liability and issued his purported refund for those years. The Court need not determine whether

some hypothetical act following the IRS’s assessment could have extended the offense because,

on the present record, O’Donoghue’s alleged February 2023 false statements appear to be, at the

very most, alleged “acts of concealment done after [this] central objective[] [had] been attained,

for the purpose only of covering up after the crime.” Grunewald, 353 U.S. at 405.

Accordingly, pursuant to the Supreme Court’s direction in Grunewald, the Court is mindful

of maintaining the “vital distinction” between acts done to further the “central criminal purpose”

of a charged offense and acts done “to avoid detection and punishment after the central criminal

purpose has been accomplished.” 353 U.S. at 405. Because O’Donoghue’s alleged February 2023

false statements more readily fall into the latter category, the Court reads Grunewald to counsel

against the Government’s attempt to establish venue for the tax evasion charges in the District of

Columbia based on these alleged false statements.

In sum, the Court concludes that O’Donoghue’s alleged February 2023 false statements do

not establish venue in the District of Columbia under the general venue statute because they were

not affirmative acts of evasion in furtherance of his charged attempt to evade or defeat the IRS’s

assessment of his income tax liability for tax years 2012 through 2015. The allegations regarding

O’Donoghue’s alleged false statements at the February 2023 interview with prosecutors and law

enforcement do not connect O’Donoghue’s alleged false statements to the IRS’s assessment of

44 O’Donoghue’s income tax liability for 2012–2015. Rather, the only potential connection between

O’Donoghue’s alleged false statements and the underlying tax evasion charges is that

O’Donoghue’s alleged false statements could be viewed as conduct intended to interfere with the

Government’s prosecution of his already-completed alleged tax evasion, which is a connection

that does not warrant a finding that the alleged false statements were a continuation of the

underlying tax evasion charges. See Grunewald v. United States, 353 U.S. 391 (1957).

Accordingly, the Court shall GRANT O’Donoghue’s [79] Motion to Dismiss for Lack of

Venue with respect to the tax evasion charges in Counts One through Four of the Indictment.

IV. CONCLUSION

The Court concludes that venue is not proper in the District of Columbia for the tax evasion

and false-subscription charges contained in Counts One through Eight of the Indictment. Venue

for these charges cannot be established in the District of Columbia under the “high seas” venue

statute, 18 U.S.C. § 3238, because an essential conduct element of the charges (i.e., the filing of

O’Donoghue’s allegedly false 2012–2015 income tax returns) allegedly occurred domestically in

the Western District of Texas. And venue for these charges cannot be established in the District

of Columbia under the general venue statute, 18 U.S.C. § 3237(a), because none of the charges

involve relevant conduct that occurred in the District of Columbia.

Accordingly, for the foregoing reasons, it is hereby ORDERED that Defendant Graham

O’Donoghue’s [79] Motion to Dismiss Count 1–8 of the Indictment for Lack of Venue is

GRANTED. An Order shall accompany this Memorandum Opinion.

SO ORDERED. Dated: July 22, 2026

COLLEEN KOLLAR-KOTELLY United States District Judge 45