Obstruction of justice.

• Author: Harrington, Matthew
• Position: Thirtieth Annual Survey of White Collar Crime

1. INTRODUCTION II. THE OMNIBUS PROVISION A. Scope of [section] 1503 B. Elements of a [section] 1503 Offense 1. Pending Federal Judicial Proceedings 2. Knowledge of Pending Proceeding 3. Corrupt Intent to Obstruct or Endeavor to Interfere C. Acts Prosecuted Under [section] 1503 1. Concealment, Alteration, or Destruction of Documents 2. Encouraging or Rendering False Testimony D. Venue for Prosecution Under [section] 1503 E. Defenses to [section] 1503 1. Legal Impossibility 2. "Fear of Reprisal" F. Penalties G. Similar Statutes to the Omnibus Provision 1. Section 1505: The Agency Provision 2. Section 1510: Obstructing Investigations 3. Section 1518: Obstruction of Justice in the Healthcare Industry H. Obstruction of Justice by Defense Counsel's Actions III. WITNESS TAMPERING A. Scope of[section][section] 1512 and 1513 B. Elements of a [section] 1512(b) Offense 1. Knowingly 2. Engaged in Enumerated Acts a. Intimidation, Physical Force, or Threats b. Misleading Conduct c. Corrupt Persuasion 3. Intent to Influence Testimony 4. Official Proceeding C. Elements of a [section] 1513(b) Offense 1. Engaging in Enumerated Conduct 2. Knowingly 3. Government Officials D. Acts Prosecuted Under [section][section] 1512 and 1513 E. Venue Under [section] 1512 F. Defenses 1. Affirmative Defense Under [section] 1512 2. Constitutionality of [section][section] 1512 and 1513 G. Penalties IV. CORPORATE ACCOUNTABILITY A. Section 1519: Destruction, Alteration or Falsification of Documents 1. Scope of [section] 1519 2. Elements of a [section] 1519 Offense a. Knowingly b. Alter, Destroy, Mutilate, Conceal, Cover up, Falsify, or Make False Entry in a Record, Document, or Tangible Object c. Intent to Impede, Obstruct, or Influence an Investigation or Proper Administration of Any Matter B. Section 1520: Corporate Audit Records C. Defenses D. Penalties V. OBSTRUCTION OF JUSTICE IN OTHER CRIMES: U.S.S.G. MANUAL [section] 3C1.1 I. INTRODUCTION

   Obstruction of justice is any "interference with the orderly administration of law and justice." (1) This area of federal law is governed by 18 U.S.C. [section][section] 1501-1521, which protect the integrity of proceedings before the federal judiciary and other governmental bodies. (2) Because most provisions guarding against obstruction of justice address very particular behaviors, this Article will focus on the sections given the most expansive treatment by courts: [section][section] 1503, 1505, 1510, 1512, 1513, 1519, and 1520. Section II of this Article examines [section] 1503, which governs obstruction of justice affecting jurors, officers of the court, and judges; [section] 1505, which governs obstruction of justice in proceedings before departments, agencies, and committees; and [section] 1510, which governs obstruction of federal criminal investigations. Section III examines prohibitions against witness tampering under [section][section] 1512 and 1513. Section IV discusses corporate accountability under [section][section] 1519 and 1520. Section V analyzes how obstruction of justice can affect penalties in other crimes where an obstruction occurred.

2. THE OMNIBUS PROVISION

   Section 1503 is known as the Omnibus Provision (3) because it applies to a broad range of conduct. (4) The Omnibus Provision's goal is to "ensure that criminals [cannot] circumvent the law's purpose by devising novel and creative schemes that would interfere with the administration of justice but would nonetheless fall outside the scope of [section] 1503's specific prohibitions." (5) The Omnibus Provision protects jurors and judicial officers from threats, intimidation, and retaliation. (6) It is designed to "prevent miscarriages of justice" and "reduce the burden on the justice system." (7) Section 1505 applies to conduct similar to that addressed by [section] 1503, but in the context of federal agency proceedings rather than court proceedings. (8) Section 1510 has extended the protection afforded by [section][section] 1503 and 1505 to potential witnesses. (9)

   This Section discusses [section][section] 1503, 1505, and 1510 in eight parts: Part A discusses the scope of [section] 1503; Part B delineates the elements of [section] 1503 offenses; Part C analyzes the acts prosecuted under [section] 1503; Part D presents issues related to venue; Part E presents various defenses to [section] 1503 charges; Part F describes penalties associated with a violation of [section] 1503; Part G surveys [section] 1505, the Agency Provision; and Part H surveys [section] 1510.

   1. Scope of [section] 1503

      Section 1503 is designed to "protect individuals involved in federal judicial proceedings and to prevent 'miscarriage[s] of justice by corrupt methods.'" (10) The statute forbids corruptly influencing or endeavoring to influence any grand or petit juror or officer of the court by threats or force, or by letter or communication. (11) The Omnibus Clause punishes a broad range of actions (12) and functions as a "catchall, prohibiting persons from endeavoring to influence, obstruct, or impede the due administration of justice" (13) when the persons' actions have the "natural and probable" effect of interfering with the due administration of justice. (14) For example, attempted bribery of officials intended to alter the outcome of a judicial proceeding is an offense under [section] 1503. (15) Additionally, "knowingly giving Grand Jury testimony that was intentionally evasive, false, and misleading" would constitute an offense under [section] 1503. Most courts have applied [section] 1503 to acts of obstruction that affect witnesses. (16) Section 1503 applies to both civil and criminal proceedings. (17)

   2. Elements of a [section] 1503 Offense

      To prove a violation of [section] 1503, the government must show that: (i) a judicial proceeding was pending; (ii) the defendant knew of or had notice of the proceeding; and (iii) the defendant acted or attempted to act corruptly with intent to obstruct, interfere, or impede the proceeding and the due administration of justice. (18) The circuits are split, however, on whether the government must also show that the offender had a corrupt motive. (19) Section 1503 applies to both actual and attempted obstructions of justice. (20)

      1. Pending Federal Judicial Proceedings

         Most circuits agree that the existence of a pending judicial proceeding is a prerequisite for conviction under [section] 1503. (21) Accordingly, [section] 1503 does not give authority to prosecute obstruction of an independent government investigation or official proceeding not connected with a pending judicial proceeding. (22) The circuits, however, disagree over when a proceeding becomes "pending." There are four dominant views regarding when a proceeding begins.

         The Third, Sixth, and Seventh Circuits have found a judicial proceeding to be pending when an investigation is undertaken to secure "presently contemplated presentation of evidence to the grand jury." (23) Stated differently, a proceeding can be described as pending if an investigation is conducted "as an aid to" or "in furtherance of" the grand jury investigation. (24) The First, Second, Fourth, Fifth, and Tenth Circuits find that an investigation conducted by the grand jury itself constitutes a judicial proceeding for the purposes of [section] 15 03. (25) The Ninth Circuit asserts that a proceeding is pending as soon as an indictment is issued. (26) The circuits requiring a pending proceeding have said a proceeding remains "pending" under [section] 1503 until disposition is made of any direct appeal that could result in a new trial. (27) Finally, the Eighth and Eleventh Circuits have found that no pending judicial proceeding is required by [section] 1503. (28)

      2. Knowledge of Pending Proceeding

         In circuits that require a pending proceeding, the government satisfies the knowledge element of [section] 1503 by showing that the accused knew of the proceeding. (29) The government must prove not only that the defendant was aware of a pending investigation, but that he had knowledge that there was a pending proceeding. (30) The defendant need not know that the proceeding was federal. (31)

      3. Corrupt Intent to Obstruct or Endeavor to Interfere

         The intent element is referred to as the "nexus" requirement. (32) The "nexus" requires a link between the obstructive act and the pending proceeding. (33) The intent element of [section] 1503 requires that a defendant act with a "corrupt purpose" (34) either to obstruct a proceeding or the due administration of justice, or to "endeavor" to interfere with a proceeding. (35) Thus, this element does not require that the defendant's act succeeds; it is sufficient if the defendant merely endeavors to interfere with the due administration of justice.

         Courts construe the statutory term "corruptly" as modifying the intent requirement, (36) but there is a split among the circuits in how the term "corruptly" is applied. Some circuits interpret "corruptly" to refer to the specific intent of the defendant, (37) while other circuits require that the defendant have a corrupt motive. (38)

         While courts are split on what "corrupt" means in reference to the "intent" requirement, some courts have allowed acts that would likely or foreseeably lead to an obstruction of justice to satisfy the intent requirement. In Pettibone v. United States, the Supreme Court interpreted the "corrupt" intent requirement of Rev. Stat. [section] 5399 (1878), the former obstruction of justice statute, and found the provision to require "specific intent,"* 39 i.e., intent to actually achieve a designated, predetermined result. (40) In 1995, the Supreme Court in United States v. Aguilar interpreted [section] 1503 and cited Pettibone, noting that the defendant, to have the requisite intent, must possess knowledge that his actions are likely to affect a proceeding. (41)

         In 1979, the Fourth Circuit in United States v. Neiswender read the intent requirement to require something less than specific...