Obstruction of justice.

• Author: Allen, Elizabeth A.
• Position: Tenth Survey of White Collar Crime

Obstruction of justice is governed principally by sections 1501 through 1517 of Title 18 of the United States Code. The federal obstruction of justice statutes are aimed at protecting the integrity of judicial proceedings in the federal judiciary,(1) before agencies,(2) and before Congress.(3) This survey focuses on those statutes which deal with interference with the judicial process, specifically sections 1503, 1512, and 1513.

1. Obstruction of Justice - 18 U.S.C. 1503 - The Omnibus Provision

   Section 1503(4) is aimed specifically at protecting grand and petit jurors as well as judicial officers from threats, intimidation and retaliation. Obstructions of justice aimed at witnesses are also proscribed by section 1503, even though section 1512 specifically addresses witness tampering allegations.(5) An attempt to bribe officials to alter the outcome of a judicial proceeding is also an offense under section 1503. In United States v. Moree,(6) while discussing such conduct, the Fifth Circuit stated that "it is hard to imagine a more invidious obstruction of justice."(7) The statute applies to activities which obstruct the due administration of justice in both civil and criminal proceedings.(8)

   1. Scope of Section 1503

      Section 1503 protects the judicial process in two ways. First, it specifically proscribes corruptly(9) influencing any grand or petit juror, or officer of the court, by threats or force, by letter or communication.(10) Second, the language which has been termed the "Omnibus Clause,"(11) broadly protects the "due administration of justice."(12)

      One circuit has applied the rule of ejusdem generis(13) to interpret the broad language in the Omnibus Clause to proscribe only acts similar to those prohibited by the specific language of the first clause.(14) The majority of circuits, however, have held that the general language in the Omnibus Clause is not limited by the specific language which precedes it, instead reading the statute to proscribe an expansive category of conduct which interferes with the judicial process.(15) The broad and ambiguous language employed in this clause has led to conflicting views as to whether the prosecution of witness tampering may continue under the broad edict of section 1503 or whether it is reserved exclusively for section 1512.(16) One court reasoned that "the most natural construction of the clause is that it prohibits acts that are similar in result, rather than manner, to the conduct described in the first part of the statute.(17) Cases arising under the Omnibus Clause tend to fall into two categories: (a) concealment, alteration, or destruction of documents; or (b) encouraging or rendering false testimony.

      1. Concealment, Alteration or Destruction of Documents

         Concealment, alteration and destruction of documents fall within the omnibus provisions of section 1503.(18) To be convicted of obstruction of justice for concealment of subpoenaed documents, a defendant must have knowledge of the pending grand jury investigations, must know that particular documents are covered by a subpoena, and must willfully conceal or endeavor to conceal them from a grand jury.(19) The statute applies even when the documents are outdated.(20) However, the government does not have to prove "the alterations made in response to a grand jury subpoena were relevant to the grand jury's investigation."(21) The mere destruction of documents in anticipation of a subpoena can constitute an obstruction of justice.(22) Section 1503 has not been extended to apply to concealing or withholding discoverable documents in a civil case.(23)

      2. Encouraging or Rendering of False Testimony

         False statements which alter judicial proceedings can be prosecuted under section 1503.(24) It is not necessary that the false statement actually be used in court or delivered to a court officer to fall within the statute.(25) However, false statements alone will not sustain a conviction under section 1503.(26) To prove obstruction of justice based on false testimony, "the government must establish a nexus between the false statements and the obstruction of the administration of justice."(27) A defendant's intentionally evasive testimony designed to conceal his true knowledge of the facts from a grand jury may be found sufficient to support a conviction for obstruction of justice.(28)

         A third party may be subject to indictment for obstruction of justice by knowingly encouraging a prospective witness to give false testimony.(29) Tricking a grand jury witness into giving false testimony was held to be indictable under section 1503.(30)

   2. Elements of the Offense

      Section 1503 applies both to actual obstruction of justice and to attempts to obstruct justice.(31) To obtain a conviction under this section, the government is required to prove that: (1) there was a pending federal judicial proceeding; (2) the defendant knew of the proceeding; and (3) the defendant intentionally interfered with or attempted to interfere with the proceeding.(32) Courts analyze these elements to determine if an obstruction of justice occurred. Indictments under section 1503 are sufficient when they allege these elements of obstruction of justice.(33)

      1. Corruptly

         The term "corruptly" in the statute has been held to describe the intent(34) of the crime and can vary in meaning with the content of the prosecution.(35) Some courts hold that the offending conduct must be prompted, at least in part, by a corrupt motive;(36) however, others have held that the word "corruptly" as used in the statute simply means that the "act must be done with the purpose of obstructing justice".(37) Although the term has been held to include "evil or wicked purposes,"(38) the government need not prove an "evil or wicked purpose" exists as a special and additional element of the offense.(39) The courts have also ruled that force or intimidation is not an essential element of a corrupt endeavor to influence; rather, the statute was designed to proscribe all manner of corrupt methods of obstructing justice.(40)

      2. Intent and Purpose

         The statute contains an intent requirement that limits its scope to those who corruptly and intentionally seek to obstruct the due administration of justice. To prove a violation of section 1503, the government must show that the accused knew of the pending judicial proceeding and specifically intended to impede its administration.(41) The circuits are split as to how to define the defendant's necessary intent. Many have held that intent may be found if the natural and probable consequences of the defendant's acts could reasonably be foreseen to have the effect of obstructing justice.(42) Other circuits, however, have imposed the more demanding requirement of "a specific intent to obstruct justice."(43) Some courts have held that this specific intent may be inferred from the surrounding facts and circumstances.(44)

      3. Endeavor

         Actual obstruction is not necessary as an element of proof to sustain a conviction under section 1503; rather, an endeavor to obstruct justice is sufficient.(45) The courts have consistently held that "endeavor" denotes a lesser threshold of purposeful activity than "attempt."(46) "Endeavor" has been defined as "any effort or assay to accomplish the evil or purpose the statute was enacted to prevent."(47)

         A defendant may be convicted of obstructing justice even where the person who was the object of the endeavor was "a fictitious character."(48) The Eleventh Circuit has held that a false statement need not be actually used in court or delivered to a court officer to satisfy the endeavor element because the existence of such a statement makes it far more likely that the statement would be produced in court, with the natural and probable consequence of obstructing the due administration of justice.(49) In the Seventh Circuit, the "endeavor" element is satisfied even when the court does not rely upon forged documents received prior to a sentencing determination.(50)

      4. Pending Proceedings

         As a prerequisite for conviction under section 1503, there must be a judicial proceeding pending.(51) Generally, obstruction of a government investigation not connected with an ongoing judicial proceeding does not fall within the purview of section 1503.(52) Even if an investigation could result in the production of evidence that might be presented to a grand jury, that fact is "insufficient to constitute a violation of section 1503."(53) An obstruction of an investigation conducted by Congress or federal departments or agencies, however, may be prosecuted under section 1505.(54)

         The point at which a proceeding is considered "pending" for purposes of section 1503 varies. In United States v. Metcalf,(55) the Ninth Circuit held that section 1503 may be applied when a complaint has been filed with a United States magistrate.(56) However, in United States v. Gonzales-Mares,(57) the court found that a judicial proceeding was pending at the time a defendant made false statements to a probation officer, even though a complaint had not actually been filed.(58)

         By contrast, in United States v. Smith,(59) a District of Columbia police officer who turned in only fifteen of eighteen packets of government-manufactured counterfeit cocaine following an undercover operation(60) was charged with, among other things, obstruction of justice.(61) The court held that the charges must be dismissed, in part because there was no pending judicial proceeding at the time,(62) and "the theoretical possibility that a federal indictment could be brought [did] not seem sufficient."(63)

         A pending investigation by a grand jury is a judicial proceeding for the purpose of section 1503.(64) A difficulty arises, however, in determining at what point a grand jury proceeding may become "pending". In United States v. Ellis,(65) the court declined to establish pendency where a federal grand jury was impaneled but no subpoenas had been issued, and the grand jury had not been...