Full 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 undisput