The Supreme Court's bipolar approach to the interpretation of 18 U.S.C. 1503 and 18 U.S.C. 2232 (c).

• Author: Fitzpatrick, James K.
• Position: Supreme Court Review - Case Note

1. Introduction

   In United States v. Aguilar,(1) the United States Supreme Court ruled on questions regarding the limits of the Omnibus Clause of 18 U.S.C. [sections] 1503,(2) which prohibits a person from endeavoring to obstruct or impede the due administration of justice, and the limits of 18 U.S.C. [sections] 2232(c),(3) which prohibits a person from disclosing a government wiretap to the person targeted under the wiretap. Regarding the Omnibus Clause, the Court held that making false statements to an investigating agent who may or may not testify before a grand jury does not violate the statute.(4) In reaching its conclusion, the Court used the rule of lenity to place a new limit--the nexus requirement--on the Omnibus Clause.(5) Under the nexus requirement, a violation of the Omnibus Clause does not occur unless a person's efforts have the "natural and probable" consequence of obstructing justice.(6) Regarding [sections] 2232(c), the Court held that a person can violate the statute by disclosing an expired wiretap.(7) The Court based its interpretation on the plain language of [sections] 2232(c).(8)

   The Note argues that the Court reached the correct results regarding both statutory questions. The Court, however, should have used different reasoning regarding its interpretation of the Omnibus Clause of [sections] 1503. First, this Note argues that the Court should not have used the rule of lenity to place a new limit--the "nexus requirement"--on the Omnibus Clause. Both the plain language of the Omnibus Clause and prior Supreme Court decisions make it clear that the statute is not violated by making false statements to a person when there is only a mere possibility that the person might testify at a judicial proceeding. Second, this Note argues that the Court's interpretation of the plain language of [sections] 2232 (c) is correct; a person can violate the statute by disclosing an expired wiretap. Furthermore, this interpretation is also consistent with congressional intent behind [sections] 2232 (c) to protect the secrecy of government wiretaps. An investigation may contain several wiretaps including both existing and expired wiretaps. Thus, protecting the secrecy of the expired wiretaps also protects the secrecy of the existing wiretaps.

2. Background

   1. THE HISTORY OF [sections] 1503

      1. The Origin of [sections] 1503

         The language of [sections] 1503 dates back to the Act of 1789, 1 Stat. 73, 83.(9) The Act of 1789 provided that federal courts of the United States "shall have power . . . to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same."(10) Due to the broad language of the statute, it was not long before some federal judges began abusing their authority under it. The most notable case involved James H. Peck, a federal district judge.(11) Judge Peck had imprisoned and disbarred an attorney for publishing critical remarks regarding one of Judge Peck's opinions.(12) In response to Judge Peck's action, the House of Representatives initiated impeachment proceedings against him.(13) However, on January 28, 1831, by a vote of twenty-one to twenty, the Senate acquitted Judge Peck.(14)

         Despite its unsuccessful bid to impeach Judge Peck, Congress decided that it needed to sharply delineate the broad undefined powers of the inferior courts under the Act of 1789.(15) As a result, Congress passed a bill that became known as the Act of March 2, 1831.(16) This Act, which was titled "[a]n Act declaratory of the law concerning contempts of court," contained two sections.(17) In Section 1,(18) Congress narrowly defined the criminal cases that could be tried using summary punishment.(19) These criminal cases involved contempts of court occurring within or near the vicinity of the courtroom.(20) Under Section 2,(21) which was added by the Senate as an amendment to Section 1,(22) Congress defined a much broader category of criminal cases involving contempts of court occurring outside the courtroom.(23) Under this section, however, a person could be punished only after indictment and trial by jury.(24) Forty years later, the Supreme Court upheld the Act of March 2, 1831.(25) The Court stated, "[a]s thus seen the power of these courts in the punishments of contempts can only be exercised to insure order and decorum in their presence, to secure faithfulness on the part of their officers in their official transactions, and to enforce obedience to their lawful orders, judgments, and processes."(26)

      2. The Evolution of [sections] 1503

         After various revisions, Congress codified Section 1 of the Act of March 2, 1831 as 18 U.S.C. [sections] 40127, and Section 2 as 18 U.S.C. [sections] 1503.(28) Regarding the statutory history of Section 2, Congress first codified Section 2 as [sections] 5399, then as [sections] 135, then as [sections] 241, and finally as [sections] 1503. Because of the similarity between [sections] 1503 and its predecessor statutes, courts have looked to prior decisions by the Supreme Court involving the predecessor statutes to determine the scope of the Omnibus Clause of [sections] 1503.(29)

         In construing the predecessor statute to [sections] 1503 (Revised Stat. [sections] 5399), the Supreme Court in Pettibone v. United States(30) placed two important limitations on the interpretation of the phrase "corruptly endeavors to obstruct the due administration of justice."(31) First, the Pettibone Court ruled that such obstruction can arise only when justice is being administered in a court of the United States.(32) Second, to convict a person of obstructing justice, that person must have knowledge that justice is being administered and intend to obstruct the justice being administered.(33)

         Building on the Supreme Court's ruling in Pettibone, lower courts have interpreted [sections] 1503 to apply to interference with any judicial arm of the government including grand jury proceedings.(34) Lower courts, however, have not extended the reach of [sections] 1503 to include obstruction of governmental agency investigations including those of the Federal Bureau of Investigation (FBI).(35)

         A more difficult question regarding the Omnibus Clause of [sections] 1503 for lower courts has been the question of what acts constitute "corrupt endeavors to obstruct the due administration of justice."(36) The Supreme Court attempted to answer this question in Osbam v. United States.(37) In Osborn, the defendant sought to convey a bribe to a potential juror through an intermediary who was secretly working for the government.(38) Although it was impossible for the defendant's efforts to successfully obstruct justice, the Court ruled that the defendant violated the Omnibus Clause because he had "endeavored" to obstruct justice.(39) The Court defined "endeavor" under the Omnibus Clause as "any effort or essay to do or accomplish the evil purpose that [sections] 1503] was enacted to prevent."(40) Furthermore, the Osborn Court noted that to violate the Omnibus Clause, a person's endeavor to obstruct justice did not have to be successful.(41)

         Despite the Supreme Court's ruling in Osborn, lower courts continued to struggle with the question of which acts are "corrupt endeavors to obstruct justice,"--especially regarding acts of perjury.(42) Subsequently, a split among the circuit courts developed regarding the correct approach to this question.

         To provide a more predictable approach for determining which acts are "corrupt endeavors to obstruct the due administration of justice," the Third, Tenth and Eleventh Circuits developed a "nexus" requirement.(43) Under the Third Circuit's definition, an endeavor must have a relationship in time, causation or logic with the judicial proceeding.(44) The Eleventh Circuit advanced the nexus requirement one step further by requiring that a person's endeavor have the "natural and probable effect" of interfering with the due administration of justice.(45) The court based its nexus requirement on the reasoning used by the Supreme Court in In re Michael(46) regarding perjury as a contempt of court.(47) The Tenth Circuit also adopted the reasoning used by the Eleventh Circuit regarding the nexus requirement and held that making false statements to FBI agents, who were part of a grand jury investigation, does not violate the Omnibus Clause because the false statements would not have the "natural and probable effect" of obstructing justice.(48)

         The Fifth and the Ninth Circuits have used a broader interpretation to determine which acts are "corrupt endeavors to obstruct the due administration of justice" under the Omnibus Clause.(49) In United States v. Rasheed,(50) the Ninth Circuit ruled that the Omnibus Clause was designed to proscribe all corrupt methods of obstructing justice.(51) Likewise, the Fifth Circuit in United States v. Williams(52) ruled that any corrupt effort to obstruct justice violates the Omnibus Clause.(53) Unlike the Third, Tenth, and Eleventh Circuits, the Fifth and the Ninth Circuits have not applied the nexus requirement to the Omnibus Clause. An effort to obstruct justice does not need to have the "natural and probable" effect of obstructing justice or to result in actual obstruction of justice.(54) Furthermore, the Fifth Circuit reasoned that reliance on In re Michael by other circuits to interpret the Omnibus Clause was incorrect since the In re Michael Court ruled on the predecessor statute to [sections] 401--which involves summary punishment---and not on the predecessor statute to the Omnibus Clause of [sections] 1503.(55)

   2. THE HISTORY OF [sections] 2232(c)

      Section 2232(c) was enacted as part of the Electronics Privacy Act of 1986, which amended Title III of the Omnibus Crime Control and Safe Streets Act of 1968.(56) Title III of the 1968 law was designed to protect against the unauthorized interception of electronic communications by the government.(57) Under Title III, Congress carefully...