Obstruction of justice.

• Author: Berg, Arianna
• Position: Annual white collar crime survey

1. INTRODUCTION

   In the past two years, obstruction of justice has earned a prominent place in our public discourse.(1) Obstruction of justice is "the act by which one or more persons attempt to prevent, or actually prevent, the execution of lawful process."(2) Federal statutes 18 U.S.C. [subsections] 1501 through 1518 forbid the obstruction of justice and protect the integrity of proceedings before the federal judiciary and other governmental bodies.(3) This Article focuses specifically on four of the provisions that address interference with the judicial process: [subsections] 1503, 1505, 1512, and 1513. Section II of this Article examines [sections] 1503, the Omnibus Provision, which governs obstructions of justice that affect jurors, officers of the court, and judges. Section II also discusses [sections] 1505, which governs obstruction of proceedings before departments, agencies, and committees. Next, Section III examines prohibitions of witness tampering under [subsections] 1512 and 1513. Finally, Section IV discusses penalties under [subsections] 1503, 1512 and 1513.

2. OBSTRUCTION OF JUSTICE

   The Omnibus Obstruction Provision, [sections] 1503, protects grand and petit jurors as well as judicial officers from threats, intimidation, and retaliation.(4) Courts have also applied the Provision to acts of obstruction of justice that affect witnesses in federal judicial proceedings, thereby complementing the prohibition of witness tampering under [sections] 1512.(5) Attempted bribery of officials to alter the outcome of a judicial proceeding is also an offense under [sections] 1503.(6) Applied in both civil and criminal proceedings,(7) the omnibus provision is "designed to achieve the twin goals of protecting the participants in a specific federal proceeding and preventing a miscarriage of justice in a case pending in a federal court."(8) 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 [sections] 1503's specific prohibitions."(9)

   This Section discusses Obstruction of Justice in six parts: Part A discusses the scope of [sections] 1503, the Omnibus Provision; Part B delineates the elements of [sections] 1503 offenses; Part C analyzes the acts prosecuted under [sections] 1503; Part D presents various defenses to [sections] 1503 charges; Part E describes issues relating to venue, and Part F surveys [sections] 1505, the Agency Provision.

   1. Scope of Section 1503

      Section 1503 protects the judicial process in two ways. First, it specifically proscribes corruptly(10) influencing any grand or petit juror or officer of the court by threats or force, or by letter or communication.(11) Second, the section of 1503 known as the "Omnibus Clause"(12) protects the "due administration of justice."(13)

      Several circuits have held that the general language in the Omnibus Clause proscribes an expansive category of conduct that interferes with the judicial process.(14) In 1995, the Supreme Court resolved a split in the circuit courts,(15) noting that the Omnibus Clause serves as a "catchall ... far more general in scope than the earlier clauses in the statute."(16) Following the lead of several circuit courts which had placed some bounds on the 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.(17)

   2. Elements of a Section 1503 Offense

      Section 1503 applies to both actual and attempted obstruction of justice.(18) For a conviction, the government is required to prove that: (1) there was a pending federal judicial proceeding; (2) the defendant knew of or had notice about the proceeding; and (3) the defendant acted corruptly with the specific intent to obstruct or interfere with the proceeding or due administration of justice.(19) Under [sections] 1503, indictments are sufficient when they allege the above elements.(20) The First and Seventh Circuits additionally require, as part of the intent analysis, that a fact finder discern the motive that led the defendant to perform the alleged actions.(21)

      1. Pending Judicial Proceedings

         Obstruction of a pending judicial proceeding is a prerequisite for conviction under [sections] 1503.(22) Accordingly, obstruction of a government investigation or official proceeding not connected with a pending judicial proceeding is excluded.(23) Obstruction of an investigation that 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) If, however, the investigation is undertaken to secure "presently contemplated presentation of evidence before the grand jury," it is sufficient to qualify as a pending judicial proceeding.(25) Similarly, a pending investigation that the grand jury conducts itself also constitutes a judicial proceeding for the purposes of [sections] 1503.(26)

         Various courts have made different determinations of the procedural point at which proceedings may become "pending" in a grand jury investigation. 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)

         Pendency has also been defined in the new trial context. For example, in United States v. Seriani,(31) the Fourth Circuit held that where there is a possibility that an appellate court would reverse the defendant's conviction and remand for a new trial, inducing a witness to falsely testify at that trial constitutes obstruction of a pending proceeding.(32)

         Pendency has also been established by the filing of a complaint. In United States v. Metcalf,(33) the Ninth Circuit held that [sections] 1503 may apply when a complaint has been filed with a United States Commissioner.(34) Nevertheless, in United States v. Gonzales-Mares,(35) 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 yet been filed.(36)

         A judicial proceeding has also been regarded as pending when a superceding indictment had already been returned.(37) Finally, the Eleventh Circuit found that a proceeding is still considered "pending" after sentencing for the purpose of [sections] 1503, as the sentence may still be appealed.(38)

      2. Knowledge of Pending Proceeding

         To prove a violation of [sections] 1503, the government must also show that the accused knew of the pending judicial proceeding.(39) For example, a defendant must have knowledge that a grand jury is conducting an investigation to be accused of obstructing a grand jury proceeding.(40) The lack of knowledge of such an investigation indicates that the requisite intent for an obstruction of justice conviction is absent.(41) However, some courts have found that mere awareness of a federal investigation must be distinguished from knowledge of pending judicial proceeding.(42)

      3. Acting Corruptly with Intent

         Section 1503 limits the scope of liability to those who corruptly and intentionally act to obstruct a proceeding or the due administration of justice. Merely "endeavoring" to interfere with a proceeding constitutes obstruction of justice under [sections] 1503.(43) The intent 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."(44)

         1. Corrupt intent

            The term "corruptly" in the statute can vary in meaning with the context of the prosecution.(45) The First, Fifth, Sixth, and Eleventh Circuits have held that the offender must be prompted, at least in part, by a corrupt motive.(46) Other circuits have held that the word "corruptly" simply means specific intent--the "act must be done with the purpose of obstructing justice."(47) The Second, Sixth, Seventh, and Ninth Circuits require this specific intent component.(48) Although the term has also been defined to include "evil or wicked purposes,"(49) the government need not prove that an "evil or wicked purpose" exists as a special and additional element of the offense.(50)

            Courts, including the circuits requiring specific intent, have softened the mens rea requirement by finding that 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.(51) In addition, courts have held that specific intent may be inferred from the surrounding facts and circumstances.(52)

         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.(53) "Endeavor" has been defined as "any effort or assay to accomplish the evil purpose the section was enacted to prevent."(54) Courts have consistently held that "endeavor" denotes a lesser threshold of purposeful activity than "attempt."(55) Specifically, the government need only prove that "the endeavor [has] the `natural and probable effect' of interfering with the due administration of justice."(56) Courts have also ruled that force or intimidation is not an essential element of a corrupt endeavor to influence because [sections] 1503 was designed to proscribe all manner of corrupt methods of obstructing justice.(57)

            Actions that constitute endeavors in...