Professor of Law, DePaul University College of Law. J.D., Creighton University; L.L.M., J.S.D. New York University. The author wishes to acknowledge the outstanding support provided by student research assistant Christopher M. Kopacz, Class of 2005.
A woman is arrested for inserting money into expired parking meters after a police officer ordered her not to do so.1 A truck driver uses his CB radio to alert other drivers of a police speed trap.2 A member of a political activist group releases crickets at a public auction.3 A person swallows illegal contraband as he is being pursued by police.4 A child shouts obscenities at his public school teacher, shoves her, and leaves the classroom.5 Two middle-aged women privately state that they believe a recent arson was committed by the local police.6 Although these activities varied widely, they resulted in similar criminal charges; each person was charged with some form of obstruction of justice.
When many people consider the offense "obstruction of justice," they probably think of conduct such as evidence destruction and tampering with witnesses, jurors, and others involved in the judicial process. While such beliefs would be correct, these conceptions would be incomplete. As the above cases suggest, obstruction statutes have been interpreted to prohibit a broad range of activities. Since the Enron scandal erupted, the federal obstruction of justice laws have been used to prosecute many highly-publicized white collar criminals, such as Martha Stewart.7 At the state level,Page 52 obstruction laws have been used increasingly against drug offenders who, in some fashion, attempt to destroy or conceal their drugs when being pursued by police.8
This article will illustrate the broad reach of the crime of obstruction at the federal and the state levels through an examination of the statutes and the case law. Part II provides a brief background to obstruction of justice. Part III examines the federal obstruction of justice statutes with particular emphasis on the omnibus clause, the broadest provision of the various strictures. Part IV categorizes and describes the numerous state approaches to prohibiting obstruction. Then, Part V analyzes the state case law interpreting the broadest obstruction statutes. Finally, Part VI contains general observations about the broad federal and state obstruction statutes and suggests ways in which the statutes could be restricted.
In a broad sense, any offense negatively affecting government functions can be viewed as an obstruction against the administration of justice. For example, treason, sedition, perjury, bribery, escape, contempt, false personation, destruction of government property, and assault of a public official are crimes against the government.9 Moreover, as the number of governmental functions has increased throughout time, the number of statutory offenses penalizing obstructions of those functions likewise has increased.10 Many of these crimes have been clearly and distinctly set apart as separate offenses and are beyond the scope of this article. The focus of this article, instead, is the more narrow laws, which either in generalPage 53 terms or specific terms, prohibit what today is popularly called "obstruction of justice."
Sections 1501 through 1520 of Title 18 in the United States Code reflect the various provisions outlawing obstruction of justice. Specifically, the individual sections reflecting substantial criminal offenses are titled "assault on a process server,"11 "resistance to extradition agent,"12 "influencing or injuring officer or juror generally,"13 "influencing juror by writing,"14 "obstruction of proceedings before departments, agencies, and committees,"15 "theft or alteration of records or process; false bail,"16 "picketing or parading,"17 "recording, listening to, or observing proceedings of grand or petit juries while deliberating or voting,"18 "obstruction of court orders,"19 "obstruction of criminal investigations,"20 "obstruction of State or local law enforcement,"21 "tampering with a witness, victim, or an informant,"22 "retaliating against a witness, victim, or an informant,"23 "obstruction of Federal audit,"24 "obstructing examination of financial institution,"25 "obstruction of criminal investigations of health care offenses,"26 "destruction, alteration, or falsification of records in Federal investigations and bankruptcy,"27 and "destruction of corporate audit records."28 Beyond the above provisions are two other sections, one which reflects a civil action measure29 and another that sets out basic definitions.30
The central provision in this statutory arrangement is section 1503. Inasmuch as the majority of federal prosecutions forPage 54 obstruction of justice are based on this section, the discussion that follows will focus on this offense.
Section 1503 of Title 18, titled "Influencing or injuring officer or juror generally," provides: "Whoever . . . corruptly or by threats of force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished."31 This so-called omnibus clause is the broadest of the various obstruction of justice crimes, serving "as a catchall, prohibiting persons from endeavoring to influence, obstruct, or impede the due administration of justice."32
Most courts agree that there are three elements to a charge of obstruction of justice: (1) there must be a judicial proceeding pending, (2) the defendant must have knowledge of the proceeding, and (3) the defendant must have corruptly endeavored to influence, obstruct, or impede the due administration of justice. These elements will be discussed accordingly.
The first element of the obstruction of justice omnibus clause is that there be a pending judicial proceeding that qualifies as an "administration of justice."33 Courts have often refrained from developing a "rigid rule" to determine at what point a judicial proceeding becomes pending.34 An investigation by the Federal Bureau of Investigation or a similar government agency clearly is not a pending judicial proceeding because it is not a "judicial arm" of thePage 55 government involved in the administration of justice.35 Consequently, the issuance of investigative tools used by law enforcement officials, such as search warrants36 and wiretaps,37 does not constitute a pending judicial proceeding.38
On the other hand, a grand jury investigation does qualify as a pending judicial proceeding.39 If a grand jury investigation is conducted jointly with another federal agency, such as the United States Attorney, a judicial proceeding is pending.40 Likewise, a judicial proceeding was found to be pending where investigations by the Internal Revenue Service and a grand jury were "one and the same."41
An investigation by a law enforcement agency can ripen into a grand jury investigation...