Obstruction of justice.

• Author: Roush, Corey
• Position: Eleventh Survey of White Collar Crime

1. Introduction II. Obstruction of Justice: The Omnibus Provision

   1. Scope of Section 1503

   2. Elements of the Offense

      1. Pending Proceedings

      2. Knowledge and Intent

      3. Interference or Attempt to Interfere

      1. Concealment, Alteration or Destruction of Documents

      2. Encouraging or Rendering of False Testimony

      3. Endeavor

   3. Defenses within Section 1503

      1. Constitutionality

      2. Double Jeopardy

      3. Immunity

      4. Entrapment

      5. Zealous Representation

      6. Impossibility of Success

      7. "Fear of Reprisal "

   5. Venue III. Witness Tampering

   1. Scope of Sections 1512 and 1513

   2. Elements of a Section 1513

      1. Knowingly

      2. Engaged in Intimidation

      3. Intent to Influence Testimony

      4. Official Proceeding

   3. Defenses

      1. Affirmative Defense under Section 1512

      2. Constitutionality of Section 1512

   4. Venue for Prosecution Under Section 1512 IV. Penalties

   1. Section 1503

   2. Sections 1512 and 1513

   3. Violations of Other Sections

1. Introduction

   Obstruction of justice is governed principally by [subsections] 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 provisions which address interference with the judicial process: [subsections] 1503, 1512, and 1513. The second section of this article discusses [sections] 1503, the Omnibus Provision. The third section examines prohibitions on witness tampering, and the final section discusses penalties under both statutes.

2. Obstruction of Justice: The Omnibus Provision

   The Omnibus Obstruction Provision(4) is aimed at protecting grand and petit jurors, as well as judicial officers, from threats, intimidation and retaliation(5) and functions by proscribing obstructions of justice aimed at witnesses, complementing [sections] 1512's witness tampering regulations.(6) Attempted bribery of officials to alter the outcome of a judicial proceeding is also an offense under [sections] 1503.(7) The Omnibus Provision 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 "Omnibus Clause"(11) broadly protects the "due administration of justice."(12)

      The majority of circuits 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.(13) One circuit, however, has applied the rule of ejusdem generis(14) to interpret the broad language in the Omnibus Clause to forbid only acts similar to those prohibited by the specific language of the first clause.(15) However, another 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."(16) This ambiguity in language has led to conflicting views as to whether the prosecution of witness tampering may continue under the broad edict of [sections] 1503 or whether it is reserved exclusively for [sections] 1512.(17)

   2. Elements of the Offense

      Section 1503 applies to both actual obstruction of justice and attempts to obstruct justice.(18) 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 had corrupt intent to interfere with or attempted to interfere with the proceeding.(19) Indictments under [sections] 1503 are sufficient when they allege these elements of obstruction of justice.(20)

      1. Pending Proceedings

         As a prerequisite for conviction under [sections] 1503, there must be a pending judicial proceeding.(21) Generally, obstruction of a government investigation not connected with a pending judicial proceeding does not fall within the purview of [sections] 1503.(22) 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.(23) An obstruction of an investigation conducted by Congress or federal departments or agencies, however, may be prosecuted under [sections] 1505.(24)

         A pending investigation by a grand jury is a judicial proceeding for the purpose of [sections] 1503.(25) A difficulty arises, however, in determining at what point a grand jury proceeding may become "pending." In United States v. Ellis,(26) 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 apprised of the investigation.(27) However, in United States v. Vesich,(28) the Fifth Circuit found that the proceeding was "pending" for the purposes of [sections] 1503 where a grand jury had been impaneled and the witness had signed a written agreement to testify.(29)

         The point at which a proceeding is considered "pending" for purposes of [sections] 1503 varies. In United States v. Metcalf,(30) the Ninth Circuit held that [sections] 1503 may be applied when a complaint has been filed with a United States Commissioner.(31) However, in United States v. Gonzales-Mares,(32) the same 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.(33) Finally, the Eleventh Circuit found that even though a case may be "over" upon the completion of the sentencing hearing, the proceeding is still considered "pending" for the purpose of [sections] 1503, as the sentence may still be appealed.(34)

      2. Knowledge and Intent

         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 [sections] 1503, the government must show that the accused knew of the pending judicial proceeding and specifically intended to impede its administration.(35) The Second, Sixth, Seventh, Ninth and Tenth Circuits have imposed the requirement of "a specific intent to obstruct justice."(36) In the Ninth Circuit, the specific intent element is met where the defendant acts " 'corruptly,' i.e., that the act must be done with the purpose of obstructing justice."(37) The Eleventh Circuit does not require specific intent, only that "conduct was prompted, at least in part, by a 'corrupt motive.'"(38) The mens rea requirement, even in the circuits that require specific intent, has been softened because the intent is satisfied if the government can show that "the defendant knowingly and intentionally undertook an action from which an obstruction of justice was a reasonably foreseeable result."(39) In addition, some courts have held that specific intent may be inferred from the surrounding facts and circumstances.(40)

         The term "corruptly" in the statute has been held to describe the intent element4' of the crime and can vary in meaning with the content of the prosecution.(42) Some courts hold that the offending conduct must be prompted, at least in part, by a corrupt motive(43), where others have held that the word "corruptly" simply means that the "act must be done with the purpose of obstructing justice".(44) Although the term has been held to include "evil or wicked purposes,"(45) the government need not prove an "evil or wicked purpose" exists as a special and additional element of the offense.(46)

      3. Interference orAttempt to Interfere

         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. "Endeavoring" to interfere with a proceeding is also prohibited.

         1. Concealment, Alteration or Destruction of Documents

            Cases concerning concealment, alteration and destruction of documents are covered by the omnibus provisions of [sections] 1503.(47) While the statute generally protects against obstructions of this nature in both civil and criminal proceedings, [sections] 1503 has not been extended to apply to concealing or withholding discoverable documents in a civil case.(48) To be convicted, then, of obstruction of justice for concealment of subpoenaed documents, a defendant must have knowledge of the pending grand jury investigation, know that particular documents are covered by a subpoena, and willfully conceal or endeavor to conceal them from a grand jury.(49) The statute applies even when the documents are outdated.(50) 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."(51) The mere destruction of documents in anticipation of a subpoena can constitute an obstruction of justice.(52)

         2. Encouraging or Rendering of False Testimony

            False statements which alter judicial proceedings can be prosecuted under [sections] 1503.(53) It is not necessary that the false statement actually be used in court or delivered to a court officer to fall within the statute.(54) However, false statements alone will not sustain a conviction under [sections] 1503.(55) 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."(56) 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.(57) Furthermore, a third party may be subject to indictment for obstruction of justice by knowingly encouraging a prospective witness to...