Vol. 3, No. 5, Pg. 14. 18 U.S.C. Section 1512: BEWARE Directing the Litigation Drama.

• Author: By Paul B. Murphy, Phyllis B. Sumner and Michael W. Youtt

South Carolina Lawyer

1992.

Vol. 3, No. 5, Pg. 14.

18 U.S.C. Section 1512: BEWARE Directing the Litigation Drama

1418 U.S.C. § 1512: BEWARE Directing the Litigation DramaBy Paul B. Murphy, Phyllis B. Sumner and Michael W. YouttFor most people, the term "obstruction of justice" probably conjures up images of egregious conduct such as the destruction of evidence, the intimidation of grand or petit jurors or witnesses, or the bribery of jurors or witnesses.

The federal code, however, also proscribes more subtle forms of behavior, prohibiting any person from knowingly engaging in misleading conduct toward another person with the intent of influencing testimony in an official proceeding. This prohibition, found in § 1512 of Title 18 of the United States Code, is broad in scope and is troubling in the context of a lawyer either interviewing a witness or preparing a witness for testimony at trial or before a grand jury. Lawyers often try to influence witnesses, sometimes through improperly manipulative, intimidating, suggestive or misleading means; These so-called "woodshedding techniques commonly used in civil litigation, can lead to criminal exposure for a lawyer.

The Witness Tamper Statute

In 1982 Congress enacted the Victim and Witness Protection Act (VWPA) which thoroughly revised the obstruction of justice statutes. These revisions included a new witness tampering statute which Congress codified at 18 U.S.C. § 1512. Section 1512 proscribes two significant forms of witness tampering.

First, the statute forbids misleading conduct toward another person with the intent to:

* influence, delay or prevent the testimony of any person in an official proceeding,

* cause or induce any arson to withhold testimony or a document from an official proceding; or

* hinder, delay or prevent communication to a federal law enforcement officer or judge of information relating to a possible federal offense. 18 U.S.C. §1512(b). Such misleading conduct is a felony for which the statute imposes a maximum fine of $250,000 and maximum imprisonment of 10 years.

Second, §:1512 forbids the intentional harassment of another person which hinders, delays, prevents or dissuades any person from:

* attending or testifying in an official proceeding;

* reporting to a federal law enforcement officer or judge the possible commission of a federal offense

* arresting or seeking- the arrest of another person in connection with a federal offense; or

* causing a criminal prosecution. to be sought or instituted. 18 U.S.C. § 1512(c). Such harassing conduct is a misdemeanor for which the statute imposes a maximum fine of $25,000 and maximum imprisonment of one year.

16Other sections of VWPA prohibit intimidation of and retaliation against petit jurors, obstruction of antitrust investigations and obstructions of criminal investigations through bribery. See 18 U.S.C, §§ 1503, 1505, 1510. VWPA retained the omnibus obstruction of justice provision which contains the general prohibition against corrupt endeavors to influence, obstruct, or impede the due and proper administration of law. 18 U.S.C. § 1505. This omnibus provision covers those other types of witness tampering not specifically addressed by § 1512.

Practitioners in both the criminal and civil arenas should be aware...