Poseley

MEMORANDUM *

1. The second superseding indictment properly charged defendants Dennis 0. Poseley and David Trepas with conspiracy to defraud the United States by obstructing the tax collection activities of the Internal Revenue ■ Service through the fraudulent use of phony trusts, a felony. See 18 U.S.C. § 371 . Although § 371 contains a “misdemeanor clause,” that clause requires the government to charge a substantive misdemeanor offense. See, e.g., United States v. Segal, 852 F.2d 1152, 1156-57 (9th Cir.1988). By contrast, a charge of conspiracy to defraud need not. United States v. Smith, 891 F.2d 703, 713 (9th Cir.1989). Under the “defraud clause,” the government must prove only that (1) the defendants entered into an agreement (2) to obstruct a lawful function of the IRS (3) by deceitful or dishonest means, and (4) at least one overt act was committed in furtherance of the conspiracy. See United States v. Caldwell, 989 F.2d 1056, 1059 (9th Cir.1993). The indictment in this case contained fifty-nine overt acts, which sufficiently apprised Poseley and Trepas of their alleged role in the conspiracy, none of which fairly can be read to charge a single violation of willfully…