Obstruction of justice.

• Author: Rafferty, Lisa R.
• Position: Thirteenth Survey of White Collar Crime

1. INTRODUCTION

   Obstruction of justice is "the act by which one or more persons attempt to prevent, or actually prevent, the execution of lawful process."(1) Obstruction of justice is governed principally by 18 U.S.C. [subsections] 1501 through 1518, which are aimed at protecting the integrity of proceedings in the federal judiciary,(2) before agencies, (3) and before Congress.(4)

   This article focuses on those provisions that address interference with the judicial process: [subsections] 1503, 1512, and 1513. Section Two examines [sections] 1503, the Omnibus Provision, which governs the obstruction of justice directed toward jurors, officers of the court and judges. Next, Section III examines prohibitions on witness tampering under [subsections] 1512 and 1513. Finally, Section IV discusses penalties under [subsections] 1503, 1512 and 1513.

2. OBSTRUCTION OF JUSTICE: THE OMNIBUS PROVISION

   The Omnibus Obstruction Provision' is aimed at protecting grand and petit jurors, as well as judicial officers, from threats, intimidation and retaliation.(6) It has also been construed to proscribe obstructions of justice aimed at witnesses in federal judicial proceedings, thus complementing the prohibition of witness tampering(7) under [sections] 1512.(8) Attempted bribery of officials to alter the outcome of a judicial proceeding is also an offense under [sections] 1503.(9) The Omnibus Provision applies to activities which obstruct the due administration of justice in both civil and criminal proceedings.(10) Part A discusses the scope of [sections] 1503; Part B delineates the elements of the offense; Part C analyzes the acts which are prosecuted under [sections] 1503; Part D presents various defenses to [sections] 1503 charges, and Part E describes issues relating to venue.

   1. Scope of Section 1503

      Section 1503 protects the judicial process in two ways. First, the section specifically proscribes corruptly(11) influencing any grand or petit juror or officer of the court by threats or force, or by letter or communication.(12) Second, the "Omnibus Clause"(13) broadly protects the "due administration of justice."(14)

      Several circuits have held that the general language in the Omnibus Clause is not limited by the specific language which precedes it. Instead. they read the statute to proscribe an expansive category of conduct which interferes with the judicial process.(15) In 1995, the Supreme Court resolved a split in the circuit courts,(16) noting that the Omnibus Clause serves as a "catchall . . . far more general in scope than the earlier clauses in the statute."(17) Following the lead of several circuit courts who have placed some bounds on their construction of [sections] 1503, 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.(18)

   2. Elements of the Offense

      Section 1503 applies to both actual and attempted obstruction of justice.(19) For a conviction, 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 acted corruptly with the specific intent to obstruct or interfere with the proceeding or due administration of justice.(20) Under [sections] 1503. indictments are sufficient when they allege the above elements.(21)

      1. Pending Proceedings

         A pending judicial proceeding is a prerequisite for conviction under [sections] 1503.(22) Obstruction of a government investigation or official proceeding not connected with a pending judicial proceeding is excluded under the statute.(23) The fact that the investigation could result in the production of evidence that might ultimately be presented to a grand jury is "insufficient to constitute a violation of section 1503."(24) However, an investigation undertaken to secure "presently contemplated presentation of evidence before the grand jury" is sufficient to qualify as a pending judicial proceeding.(25)

         In addition, a pending investigation by a grand jury is a judicial proceeding for the purpose of [sections] 1503.(26) Various courts have made different temporal determinations of the point at which proceedings may become "pending."

         For example, in United States v. Ellis,(27) the district 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.(28) However, in United States v. Vesich,(29) the Fifth Circuit found that, where a grand jury had been impaneled and the witness had signed a written agreement to testify, the proceeding was "pending" for the purposes of [sections] 1503.(30)

         In United States v. Metcalf,(31) the Ninth Circuit held that [sections] 1503 may be applied when a complaint has been filed with a United States Commissioner.(32) However, in United States v. Gonzales-Mares,(33) another panel of 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.(34) 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.(35)

      2. Knowledge

         To prove a violation of [sections] 1503, the government must show that the accused knew of the pending judicial proceeding.(36) Knowledge of an investigation must include knowledge of a grand jury investigation.(37) Otherwise, the lack of knowledge that an action will likely affect a pending judicial proceeding indicates that the requisite intent for an obstruction of justice conviction is also absent.(38)

      3. Acting Corruptly with Intent to Obstruct Proceeding or Due Administration of Justice

         Section 1503 contains an intent requirement, limiting the scope of liability to those who corruptly and intentionally act to obstruct a proceeding or the due administration of justice. The act need not achieve the desired result; indeed, "endeavoring" to interfere with a proceeding is also prohibited.(39) This element of an obstruction of justice offense is referred to as the "nexus" requirement--the act must have a relationship in time, causation or logic with the proceedings . . . or have the `natural and probable' effect of interfering with the due administration of justice."(40)

         1. Corrupt Intent

            The term "corruptly" in the statute has been held to describe the intent element(41) of the crime and can vary in meaning with the context of the prosecution.(42) The First, Fifth, Sixth, and Eleventh Circuits have held that the offending conduct must be prompted, at least in part, by a corrupt motive,(43) while other circuits 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)

            The Second, Sixth, Seventh, and Ninth Circuits have imposed the requirement of a specific intent to obstruct justice.(47) 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."(48)

            Courts, including the circuits requiring specific intent, have softened the mens rea requirement, 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.(49) In addition, some courts have held that specific intent may be inferred from the surrounding facts and circumstances.(50)

         2. Endeavor

            Actual obstruction is not a necessary element of proof to sustain a conviction under [sections] 1503. Rather, an endeavor to obstruct justice is sufficient.(51) "Endeavor" has been defined as "any effort or assay to accomplish the evil purpose the statute was enacted to prevent."(52) Courts have consistently held that "endeavor" denotes a lesser threshold of purposeful activity than "attempt."(53) 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.(54)

            A defendant may be convicted of endeavoring to obstruct justice even where the person who was the object of the endeavor was a fictitious character.(55) The Eleventh Circuit has held that a false statement need not actually be 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. (56) In the Seventh Circuit, forged letters, even though not relied upon by the court in its sentencing determination. were sufficient to constitute an "endeavor" to influence the judge.(57)

   3. Acts Prosecuted Under Section 1503

      Cases arising under the Omnibus Clause tend to fall into two categories: (1) concealment, alteration, or destruction of documents; or (2) encouraging or rendering false testimony.

      1. Concealment, Alteration or Destruction of Documents

         Cases concerning concealment, alteration, and destruction of subpoenaed documents are covered by the omnibus provisions of [sections] 1503.(58) 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 civil litigation.(59) To be convicted of obstruction of justice for concealment of subpoenaed documents, a defendant must have knowledge of the...