Obstruction of justice.

• Author: Schaefer, Kimberley A.
• Position: Twenty-First Annual Survey of White Collar Crime

1. INTRODUCTION II. OBSTRUCTION OF JUSTICE: THE OMNIBUS PROVISION A. Scope of [section] 1503 B. Elements of a [section] 1503 Offense 1. Pending Judicial Proceedings 2. Knowledge of Pending Proceeding 3. Acting Corruptly with Intent a. Corrupt Intent b. Endeavor C. Acts Prosecuted Under [section] 1503 1. Concealment, Alteration, or Destruction of Documents 2. Encouraging or Rendering False Testimony D. Defenses to [section] 1503 1. Legal Impossibility 2. "Fear of Reprisal". E. Venue for Prosecution Under [section] 1503 F. Section 1505: The Agency Provision III. WITNESS TAMPERING A. Scope of [subsection] 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. Other [section] 1512 Offenses and Issues 1. Re-lettering of [section] 1512 2. Section 1512(a) 3. Section 1512(c) 4. Section 1512(d) D. Defenses 1. Affirmative Defense Under [section] 1512 2. Constitutionality of [subsection] 1512 and 1513 E. Venue Under [section] 1512 IV. CORPORATE ACCOUNTABILITY A. Section 1519: Destruction, Alteration or Falsification of Documents B. Section 1520: Corporate Audit Records V. PENALTIES A. Section 1503 B. Sections 1512 and 1513 C. U.S.S.G. [section] 3C1.1 I. INTRODUCTION

   Obstruction of justice is any "interference with the orderly administration of law and justice" (1) and can be made up of "a medley of crimes." (2) This area of the law is governed principally by 18 U.S.C. [section] 1501 through [section] 1520, which protect the integrity of proceedings before the federal judiciary and other governmental bodies. (3) While many of the provisions address very particular categories of behavior, (4) this Article focuses specifically on the four provisions given the most expansive treatment by courts addressing interference with the judicial process: [subsection] 1503, 1505, 1512, and 1513. This Article also will briefly examine the recently added [subsection] 1519 and 1520. Section II of this Article examines [section] 1503, which governs obstruction of justice affecting jurors, officers of the court, and judges, and [section] 1505, which governs obstruction of justice in proceedings before departments, agencies, and committees. Section III examines prohibitions against witness tampering under [subsection] 1512 and 1513. Section IV discusses corporate accountability under [subsection] 1519 and 1520. Finally, Section V discusses penalties under [subsection] 1503, 1512, and 1513.

2. OBSTRUCTION OF JUSTICE: THE OMNIBUS PROVISION

   Section 1503 is known as the Omnibus Obstruction Provision ("Omnibus Provision") because it applies to a broad range of conduct. (5) It is designed "to protect individuals involved in federal judicial proceedings and to prevent 'miscarriages of justice by corrupt methods."' (6) It also serves to "ensure that criminals could not circumvent the law's purpose by devising novel and creative schemes that would interfere with administration of justice but would nonetheless fall outside the scope of [section] 1503's specific prohibitions." (7) The Omnibus Provision protects jurors and judicial officers from threats, intimidation, and retaliation. (8) Courts have also applied this provision to acts of obstruction that affect witnesses in federal judicial proceedings. (9) Additionally, attempted bribery of officials to alter the outcome of a judicial proceeding is an offense under [section] 1503. (10) Although several courts have applied [section] 1503 to acts of obstruction that affect witnesses, the Second Circuit, at least, maintains that the passage of [section] 1512 eliminated this use of the Omnibus Provision, despite the fact that they acknowledge they are in the minority on this issue. (11) Section 1505 applies to conduct similar to that addressed by [section] 1503, but in the context of federal agency proceedings rather than court proceedings. (12)

   This section discusses [subsection] 1503 and 1505 in six 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 various defenses to [section] 1503 charges; Part E describes issues relating to venue; and Part F surveys [section] 1505, the Agency Provision.

   1. Scope of [section] 1503

      The structure of [section] 1503, with its specific as well as broad language, (13) protects the judicial process in two ways. First, the specific language of the statute forbids corruptly (14) influencing any grand or petit juror or officer of the court by threats or force, or by letter or communication. 15 Second, the concluding section of [section] 1503, the "Omnibus Clause," (16) "is essentially a catch-all provision that generally prohibits conduct that interferes with the 'due administration of justice.'" (17) In 1995, the Supreme Court, resolving a split among the circuits, (18) noted that the Omnibus Clause serves as a "catchall ... far more general in scope than the earlier clauses in the statute." (19) Following the lead of several circuit courts that placed some limits on the construction of [section] 1503, (20) the Supreme Court stated that acts prosecuted under the "catchall" clause must have the "natural and probable" effect of interfering with the due administration of justice. (21) Section 1503 applies to both civil and criminal proceedings. (22)

   2. Elements of a [section] 1503 Offense

      Section 1503 applies to both actual and attempted obstructions of justice. (23) For a conviction, the government is typically required to prove: (i) a nexus with a pending federal judicial proceeding; (ii) that the defendant knew of or had notice about the proceeding; and (iii) that the defendant acted corruptly with intent to obstruct or interfere with the proceeding or due administration of justice. (24) In most courts, then, indictments are sufficient under [section] 1503 when they allege the above elements. (25) However, the First and Seventh Circuits also explicitly require that a fact finder discern the motive that led the defendant to perform the alleged actions. (26)

      1. Pending Judicial Proceedings

         Most circuits agree that obstruction of a pending judicial proceeding is a prerequisite for conviction under [section] 1503. (27) Accordingly, obstruction of an independent government investigation or official proceeding not connected with a pending judicial proceeding is generally excluded from prosecution. (28) However, the circuits disagree over when a proceeding becomes "pending." 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 before the grand jury." (29) 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] 1503. (30) The Ninth Circuit declares that a proceeding is pending as soon as an indictment is issued. (31) Finally, the Eighth and Eleventh Circuits have asserted that no pending judicial proceeding is required by [section] 1503. (32)

         Of the circuits that have addressed the issue of when a proceeding ceases to be "pending," the consensus is that a proceeding is pending for purposes of [section] 1503 until disposition is made of any direct appeal that would result in a new trial. (33)

      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. (34) In other words, a defendant must have knowledge that a grand jury is conducting an investigation in order to be convicted of obstructing that grand jury proceeding. (35) Courts often distinguish mere awareness of a federal investigation from knowledge of pending judicial proceeding. (36)

      3. Acting Corruptly with Intent

         The intent element of [section] 1503 requires that a defendant corruptly and intentionally act (37) to obstruct a proceeding or the due administration of justice, or "endeavor" to interfere with a proceeding. (38) The intent element of an obstruction of justice offense is referred to as the "nexus" requirement. (39)

         1. Corrupt Intent

            Courts generally construe the statutory term "corruptly" as an intent requirement, though the term's meaning can vary in different contexts. (40) The First, Third, and Eleventh Circuits have held that the offender must be prompted, at least in part, by a corrupt motive. (41) The Second, Fourth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits have held that the word "corruptly" simply means specific intent-the "act must be done with the purpose of obstructing justice." (42)

            In 1893, the "corrupt" intent requirement was read by the Supreme Court to require a level of intent consistent with the mens rea (43) of "specific intent," (44) i.e., intent to actually achieve a designated, predetermined result. (45) However, in 1979, the Fourth Circuit in United States v. Neiswender read the intent requirement to require less than specific intent declaring that "[t]he defendant's actual design is irrelevant." (46) Instead, the Fourth Circuit created a "foreseeability rule," whereby if obstruction is "reasonably foreseeable," then the defendant is on notice that his acts could obstruct justice. (47)

            Since Neiswender, courts, including those Circuits claiming to require specific intent, have found the intent requirement is satisfied if the government shows that the defendant knowingly and intentionally undertook an action from which an obstruction of justice was a reasonably foreseeable result. (48) Courts have held that specific intent may be inferred from circumstantial evidence. (49)

         2. Endeavor

            "Endeavor" has been defined as "any effort or assay to accomplish the evil purpose the...