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Obstruction of justice 101

This is one of a series of blog posts surveying federal criminal law topics, grounded for the most part on a study of official federal circuit jury instructions. This one surveys "obstruction of justice" crimes. Before we get started, you may wish to look at the previous "101" posts:

Mail and wire fraud 101 part one (jurisdictional elements)
Mail and wire fraud 101 part 2 (elements in common)
Conspiracy 101

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Introduction. It is probably wise to tighten the focus a bit. We'll only look at commonly charged federal crimes listed in Title 18 chapter 73 ("Obstruction of Justice"). Here is the complete list chapter 73 crimes, with the commonly charged crimes bolded:

§ 1501. Assault on process server
§ 1502. Resistance to extradition agent
§ 1503. Influencing or injuring officer or juror generally
§ 1504. Influencing juror by writing
§ 1505. Obstruction of proceedings before departments, agencies, and committees
§ 1506. Theft or alteration of record or process; false bail
§ 1507. Picketing or parading
§ 1508. Recording, listening to, or observing proceedings of grand or petit juries while deliberating or voting
§ 1509. Obstruction of court orders
§ 1510. Obstruction of criminal investigations
§ 1511. Obstruction of State or local law enforcement
§ 1512. Tampering with a witness, victim, or an informant
§ 1513. Retaliating against a witness, victim, or an informant
§ 1514. Civil action to restrain harassment of a victim or witness
§ 1514A. Civil action to protect against retaliation in fraud cases
§ 1515. Definitions for certain provisions; general provision
§ 1516. Obstruction of Federal audit
§ 1517. Obstructing examination of financial institution
§ 1518. Obstruction of criminal investigations of health care offenses
§ 1519. Destruction, alteration, or falsification of records in Federal investigations and bankruptcy
§ 1520. Destruction of corporate audit records
§ 1521. Retaliating against a Federal judge or Federal law enforcement officer by false claim or slander of title

Ostructing jurors and court officers. We'll start with Section 1503. It covers obstructions directed at jurors (including grand jurors) and court officers (including judges and magistrates). Subsection 1503(a) is a rambling 200-word paragraph without internal enumeration that describes at least three distinct crimes:

  • "corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any [juror or court officer] in the discharge of his duty"
  • injures a juror on account of "any verdict or indictment assented to by him" or "his being or having been such juror," or a court officer "on account of the performance of his official duties" in their person or property
  • "corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice" (omnibus clause)

Although not expressly so stated in the statute, the Supreme Court has read in a requirement that the government prove that the defendant was aware of a pending proceeding. See United States v. Aguilar, 515 U.S. 593, 599 (1995), citing Pettibone v. United States, 148 U.S. 197, 207 (1893).

Corruptly has been defined as acting knowingly and dishonestly, with the specific intent to subvert or undermine the due administration of justice. See Pattern Crim. Jury Instr. 5th Cir. 2.63A (2015); Arthur Andersen L.L.P. v. United States, 544 U.S. 696, 706-07 (2005); 18 U.S.C. § 1515(a)(6) and (b). Some circuits will use more general language (and more negative descriptive terms like "wicked" are avoided), but at a minimum there must be proof that defendants knew they were doing something wrong.

The use of the word endeavor was intended to get "rid of the technicalities which might be urged as besetting the word 'attempt' and it describes any effort or essay to accomplish the evil purpose that the section was enacted to prevent." United States v. Russell, 255 U.S. 138, 143 (1921). That is, an "endeavor" to obstruct can be less than an "attempt." Model Crim. Jury Instr. 8th Cir. 6.18.1510 Note (2017). Although this platitude is often stated, it is difficult to find actual examples of cases where something short of an attempt is accepted as an endeavor.

That being said, where the government is proceeding on an "endeavor" theory there must be a nexus; that is, "the act must have a relationship in time, causation, or logic with the judicial proceedings. In other words, the endeavor must have the 'natural and probable effect' of interfering with the due administration of justice." Aguilar, id. at 599 (1995) (citations omitted) (false statements to an investigating agent who might or might not testify before a grand jury is insufficient).

Nothing in chapter 73 prohibits "the providing of lawful, bona fide, legal representation services in connection with or in anticipation of an official proceeding." 18 U.S.C. § 1515(c).

The maximum term of incarceration for the base offense is ten years. If the conduct involved a killing, the punishment is that provided in 18 U.S.C. §§ 1111 and 1112. If it involved an attempted killing, or a case in which the offense was committed against a petit juror and in which a class A or B felony was charged, the maximum term is twenty years.

Witness tampering. The next commonly charged statute, § 1512, is a statute that describes at least seven discrete crimes directed at witnesses and informants:

  • § 1512(a)(1) "kills or attempts to kill another person, with intent to (A) prevent the attendance or testimony of any person in an official proceeding; (B) prevent the production of a record, document, or other object, in an official proceeding; or (C) prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, parole, or release pending judicial proceedings"
  • § 1512(a)(2) "uses physical force or the threat of physical force against any person, or attempts to do so, with intent to (A) influence, delay, or prevent the testimony of any person in an official proceeding; (B) cause or induce any person to (i) withhold testimony, or withhold a record, document, or other object, from an official proceeding; (ii) alter, destroy, mutilate, or conceal an object with intent to impair the integrity or availability of the object for use in an official proceeding; (iii) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or (iv) be absent from an official proceeding to which that person has been summoned by legal process; or (C) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, supervised release, parole, or release pending judicial proceedings"
  • § 1512(b)(1) "knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to (1) influence, delay, or prevent the testimony of any person in an official proceeding"
  • § 1512(b)(2) "knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to ... (2) cause or induce any person to—(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding; (B) alter, destroy, mutilate, or conceal an object with intent to impair the object's integrity or availability for use in an official proceeding; (C) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or (D) be absent from an official proceeding to which such person has been summoned by legal process"
  • § 1512(b)(3) "knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to ... (3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation[,] supervised release, parole, or release pending judicial proceedings"
  • § 1512(c)(1) "corruptly (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object's integrity or availability for use in an official proceeding"
  • § 1512(c)(2) "corruptly ... (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so" (omnibus clause)

In communication cases ((a)(1), (a)(2), and (b)(3)), though the government need not prove that the defendant knew that the judge was a federal judge or that the law enforcement officer was a federal officer, 18 U.S.C. § 1512(g)(2), it must show "that the likelihood of communication to a federal officer was more than remote, outlandish, or simply hypothetical." Fowler v. United States, 563 U.S. 668, 678 (2011) (a prosecution under § 1512(a)(1)(C)).

The term official proceeding includes federal court proceedings and proceedings before agencies "authorized by law." 18 U.S.C. § 1515(a). It also includes proceedings "involving the business of insurance whose activities affect interstate commerce before any insurance regulatory official or agency or any agent or examiner appointed by such official or agency to examine the affairs of any person engaged in the business of insurance whose activities affect interstate commerce." Id. Courts are divided over whether an FBI investigation may constitute an official proceeding.

Although 18 U.S.C. § 1512(f)(1) states that an official proceeding "need not be pending or about to be instituted at the time of the offense," the government has to establish a nexus between the defendant's acts and a particular proceeding. Arthur Andersen L.L.P. v. United States, 544 U.S. 696 (2005). The government must prove that the defendant contemplated a particular official proceeding that was foreseeable when he or she engaged in the proscribed conduct. Mod. Crim. Jury Instr. 3rd Cir. 6.18.1512A2 Comment (2013). Arthur Andersen was a prosecution under § 1512(b)(2), but this nexus requirement likely applies to all the provisions of § 1512 that relate to official proceedings, i.e., would not apply to § 1512(b)(3). A 1512(b)(3) prosecution, however, does require proof (per Fowler, supra) that the defendant believed it was reasonably likely that the witness, absent tampering, might communicate with federal authorities.

Corruptly in this context requires proof that the defendant had the purpose of wrongfully impeding the due administration of justice.” Fed. Crim. Jury Instr. 7th Cir. 18 U.S.C. § 1512 Definition of Corruptly (2018); Arthur Anderson. id.

In cases involving a threat or the use of force against a witness, the threat or force does not have to be against the person testifying, and there need not be any direct contact with the witness. It could include "cases in which the defendant used force against, for example, a family member in order to silence a witness. Alternatively, the use of force or threat of force may be directed at a number of potential victims, as, for example, a case where the defendant blew up a courtroom." Mod. Crim. Jury Instr. 3rd Cir. 6.18.1512A2 Comment (2013) (citation omitted).

It is an affirmative defense "that the conduct consisted solely of lawful conduct and that the defendant's sole intention was to encourage, induce, or cause the other person to testify truthfully." 18 U.S.C. § 1512(e). Furthermore, as previously noted, the statute "does not prohibit or punish the providing of lawful, bona fide, legal representation services in connection with or in anticipation of an official proceeding." 18 U.S.C. § 1515(c).

The maximum punishment for a violation of 18 U.S.C. § 1512(a) is:

  • In the case of a killing, the punishment provided in 18 U.S.C. §§ 1111 and 1112.
  • In the case of an attempt to murder, or the use or attempted use of physical force against any person, imprisonment for not more than thirty years.
  • In the case of the threat of use of physical force against any person, imprisonment for not more than twenty years.

The maximum punishment for a violation of 18 U.S.C. § 1512(b) or (c) is twenty years. The maximum punishment for a violation of 18 U.S.C. § 1512(d) is three years.

"If the offense under [18 U.S.C. § 1512] occurs in connection with a trial of a criminal case, the maximum term of imprisonment which may be imposed for the offense shall be the higher of that otherwise provided by law or the maximum term that could have been imposed for any offense charged in such case." 18 U.S.C. § 1512(j).

Retaliation. A third statute, 18 U.S.C. § 1513, addresses retaliation against witnesses and informants. Paragraph (a) addresses killing or attempting to kill witnesses and informants using much the same language as § 1512(a)(1), except that it covers "intent to retaliate" instead of "intent to prevent." Paragraph (b) similarly punishes injuring, or attempting to injure, persons and property, using language that parallels § 1512(a)(2).

Paragraph (e) prohibits economic retaliation: "knowingly, with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense."

The definitions and defenses are generally handled just as they are in parallel provisions of § 1512.

The maximum term of incarceration for a violation of § 1513(b) is twenty years. "If the retaliation occurred because of attendance at or testimony in a criminal case, the maximum term of imprisonment which may be imposed for the offense under this section shall be the higher of that otherwise provided by law or the maximum term that could have been imposed for any offense charged in such case." 18 U.S.C. § 1513(c).

Deestruction of evidence. The fourth and final statute that we are looking at today is 18 U.S.C. § 1519. Enacted as part of the Sarbanes-Oxley Act of 2002, it prohibits the obstruction of federal investigations by the destruction of evidence (as the parallel 18 U.S.C. § 1512(c) prohibits the obstruction of federal proceedings by the destruction of evidence). It is violated where the defendant "knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case."

Although the language of the statute more clearly focuses on the destruction of evidence, all the courts examining the issue have found that it covers the creation of false evidence.

The Eighth Circuit has noted that, despite there being no requirement of a pending matter or knowledge of the federal nature of a matter, § 1519 still requires proof of intent to obstruct, impede, or influence a matter; otherwise, the statute would forbid innocent conduct such as destruction of records "that a person consciously and in good faith determines are irrelevant to a foreseeable federal matter." Similarly, the Fifth Circuit has stated that, although the statute on its face does not require a "corrupt" intent like other obstruction of justice statutes (compare § 1519 with 18 U.S.C. §§ 1512(b) and 1503), "it still requires some form of obstructive intent, specifically a knowing destruction undertaken with the 'intent to impede, obstruct, or influence the investigation or proper administration of [a] matter.'".

Pattern Crim. Jury Instr. 5th Cir. 2.65 Note (2015) (citations omitted).

Two notable cases:

  • In Yates v. United States, 574 U.S. 528 (2015), the Supreme Court held that a "tangible object" must be one used to record or preserve information (the object in Yates was an undersized fish).
  • Moving emails into "deleted items" folder does not qualify as concealment under § 1519. United States v. Katakis, 800 F.3d 1017, 1030 (9th Cir. 2015).

The maximum term of incarceration for a violation of 18 U.S.C. § 1519 is twenty years.

Two final notes:

  • Sections 1512 and 1513 (but not 1503 or 1519) have their own conspiracy clauses that make conspiracy "subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy." 18 U.S.C. § 1512(k). This statute may be chosen by the government over 18 U.S.C. § 371 because of its potentially greater maximum sentence, and the lack of an overt act requirement.

  • Sections 1512 and 1513 (but not 1503 or 1519) have specific extraterritorial jurisdiction clauses.

(9/29/19)

 
 
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