Printer Friendly
The Free Library
23,383,293 articles and books


Obstruction of justice.

I. INTRODUCTION II. OBSTRUCTION OF JUSTICE; THE OMNIBUS PROVISION

A. Scope of Section 1503

B. Elements of the Offense

1. Pending Proceedings

2. Knowledge and Intent

3. Interference or Attempt to Interfere

a. Concealment, Alteration or Destruct

b. Encouraging or Rendering of False Testimony

c. Endeavor

C. Defenses within Section 1503

1. Constitutionality

2. Double Jeopardy

3. Immunity

4. Entrapment

5. Zealous Representation

6. Impossibility of Success

7. "Fear of Reprisal"

D. Venue III. WITNESS TAMPERING

A. Scope of Sections 1512 and 1513

B. Elements of a Section 1512(b) Offense

1. Knowingly

2. Engaged in Intimidation

3. Intent to Influence Testimony

4. Official Proceeding

C. Defenses

1. Affirmative Defense Under Section 1512

2. Constitutionality of Section 1512

D. Venue for Prosecution Under Section 1512 IV. PENALTIES

A. Section 1503

B. Sections 1512 and 1513

C. Violations of Other Sections

I. INTRODUCTION

Obstruction of justice is "the act by which one or more persons attempt to prevent, or do prevent, the execution of lawful process."(1) Obstruction of justice is governed principally by sections 1501 through 1517 of Title 18 of the United States Code. The federal obstruction of justice statutes are aimed at protecting the integrity of proceedings in the federal judiciary,(2) before agencies,(3) and before Congress.(4)

This survey focuses on those provisions which address interference with the judicial process: [subsections] 1503, 1512, and 1513. First, [sections] 1503, the Omnibus Provision, which governs the the obstruction of justice directed toward jurors, officers of the court and judges, is reviewed. Prohibitions on witness tampering under [subsections] 1503, 1512 and 1513 are discussed in the final section.

II. OBSTRUCTION OF JUSTICE: THE OMNIBUS PROVISION

The Omnibus Obstruction Provisions is aimed at protecting grand and petit jurors, as well as judicial officers, from threats, intimidation and retaliation.(6) It functions by proscribing obstructions of justice aimed at witnesses, complementing the prohibition of witness tampering(7) under [sections] 1512.(8) Attempted bribery of officials to alter the outcome of a judicial proceeding is also an offense under [sections] 1503.(9) The Omnibus Provision applies to activities which obstruct the due administration of justice in both civil and criminal proceedings.(10)

A. Scope of Section 1503

Section 1503 protects the judicial process in two ways. First, the section specifically proscribes corruptly(11) influencing any grand or petit juror or officer of the court by threats or force, by letter, or communication.(12) Second, the "Omnibus Clause"(13) broadly protects the "due administration of justice."(14)

Several circuits have held that the general language in the Omnibus Clause is not limited by the specific language which precedes it. Instead, they read the statute to proscribe an expansive category of conduct which interferes with the judicial process.(15) The Ninth Circuit, however, applying the rule of ejusdem generic,(16) has interpreted the broad language in the Omnibus Clause to forbid only acts similar to those prohibited by the specific language of the first clause.(17) Another court reasoned that "the most natural construction of the clause is that it prohibits acts that are similar in result, rather than manner, to the conduct described in the first part of the statute."(18) This ambiguity in language has led to conflicting views as to whether the prosecution of witness tampering may continue under the broad edict of [sections] 1503 or whether it is reserved exclusively for [sections] 1512.(19)

B. Elements of the Offense

Section 1503 applies to both actual obstruction of justice and attempts to obstruct justice.(20) To obtain a conviction under this section, the government is required to prove that: (1) there was a pending federal judicial proceeding; (2) the defendant knew of the proceeding; and (3) the defendant had corrupt intent to interfere with or attempted to interfere with the proceeding.(21) Indictments under [sections] 1503 are sufficient when they allege these elements of obstruction of justice.(22)

1. Pending Proceedings

As a prerequisite for conviction under [sections] 1503, there must be a pending judicial proceeding.(23) Generally, obstruction of a government investigation not connected with a pending judicial proceeding does not fall within the purview of[sections] 1503.(24) Even if an investigation could result in the production of evidence that might be presented to a grand jury, that fact is "insufficient to constitute a violation of section 1503."(25) However, an obstruction of an investigation conducted by Congress or federal departments or agencies may be prosecuted under [sections] 1505.(26)

A pending investigation by a grand jury is a judicial proceeding for the purpose of [sections] 1503.(27) A difficulty arises, however, in determining at what point proceedings may become "pending." In United States v. Ellis,(28) the 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.(29) However, in United States v. Vesich,(30) 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.(31)

In United States v. Metcalf,(32) the Ninth Circuit held that [sections] 1503 may be applied when a complaint has been filed with a United States Commissioner.(33) However, in United States v. Gonzales-Mares,(34) 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 actually been filed.(35) Finally, the Eleventh Circuit found that, even though a case may be "over" upon the completion of the sentencing hearing, the proceeding is still considered "pending" for the purpose of [sections] 1503, as the sentence may still be appealed.(36)

2. Knowledge and Intent

Section 1503 contains an intent requirement, limiting its scope to those who corruptly and intentionally seek to obstruct the due administration of justice. To prove a violation of [sections] 1503, the government must show that the accused knew of the pending judicial proceeding and specifically intended to impede its administration.(37)

The Second, Sixth, Seventh, and Ninth Circuits have imposed the requirement of "a specific intent to obstruct justice."(38) In the Ninth Circuit, the specific intent element is met where the defendant acts "`corruptly', i.e., the act must be done with the purpose of obstructing justice."(39) The Eleventh Circuit does not require specific intent, only that "conduct was prompted, at least in part, by a `corrupt motive.'"(40)

The mens rea requirement, even in the circuits requiring specific intent, has been softened, because the 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."(41) In addition, some courts have held that specific intent may be inferred from the surrounding facts and circumstances.(42)

The term "corruptly" in the statute has been held to describe the intent element(43) of the crime and can vary in meaning with the context of the prosecution.(44) The First, Fifth, Sixth, and Eleventh Circuits have held that the offending conduct must be prompted, at least in part, by a corrupt motive,(45) while others have held that the word "corruptly" simply means that the "act must be done with the purpose of obstructing justice."(46) Although the term has been held to include "evil or wicked purposes,"(47) the government need not prove an "evil or wicked purpose" exists as a special and additional element of the offense.(48)

3. Interference or Attempt to Interfere

Cases arising under the Omnibus Clause tend to fall into two categories: (a) concealment, alteration, or destruction of documents; or (b) encouraging or rendering false testimony. "Endeavoring" to interfere with a proceeding is also prohibited.(49)

a. Concealment, Alteration or Destruction of Documents

Cases concerning concealment, alteration, and destruction of documents are covered by the omnibus provisions of [sections] 1503.(50) While the statute generally protects against obstructions of this nature in both civil and criminal proceedings, [sections] 1503 has not been extended to apply to concealing or withholding discoverable documents in a civil case.(51) To be convicted, then, of obstruction of justice for concealment of subpoenaed documents, a defendant must have knowledge of the pending grand jury investigation, know that particular documents are covered by a subpoena, and willfully conceal or endeavor to conceal them from a grand jury.(52) The statute applies even when the documents are outdated.(53) However, the government does not have to prove "the alterations made in response to a grand jury subpoena were relevant to the grand jury's investigation."(54) The mere destruction of documents in anticipation of a subpoena can constitute an obstruction of justice.(55)

b. Encouraging or Rendering of False Testimony

False statements which alter judicial proceedings can be prosecuted under [sections] 1503.(56) It is not necessary that the false statement actually be used in court or delivered to a court officer to fall within the statute.(57) However, false statements alone will not sustain a conviction under [sections] 1503.(58) To prove obstruction of justice based on false testimony, "the government must establish a nexus between the false statements and the obstruction of the administration of justice."(59)

A defendant's intentionally evasive testimony designed to conceal his true knowledge of the facts from a jury may be found sufficient to support a conviction for obstruction of justice.(60) Furthermore, simply encouraging a prospective witness to render false testimony may lead to indictment under [sections] 1503.(61) Tricking a grand jury witness into giving false testimony has also been found indictable under [sections] 1503.(62) Moreover, the person engaging in activities prohibited by [sections] 1503 need not be a party to the pending judicial proceeding in order to be convicted.(63)

c. 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.(64) "Endeavor" has been defined as "any effort or assay to accomplish the evil purpose the statute was enacted to prevent."(65) The courts have consistently held that "endeavor" denotes a lesser threshold of purposeful activity than "attempt."(66) Courts have also ruled that force or intimidation is not an essential element of a corrupt endeavor to influence. Rather, the statute was designed to proscribe all manner of corrupt methods of obstructing justice.(67)

A defendant may be convicted of endeavoring to obstruct justice even where the person who was the object of the endeavor was "a fictitious character."(68) The Eleventh Circuit has held that a false statement need not actually be used in court or delivered to a court officer to satisfy the endeavor element, because the existence of such a statement makes it far more likely that the statement would be produced in court, with the natural and probable consequence of obstructing the due administration of justice.(69) In the Seventh Circuit, forged letters, not relied upon by the court in its sentencing determination, were sufficient to constitute an "endeavor" to influence the judge.(70)

C. Defenses within Section 1503

Constitutional challenges to [sections] 1503 have generally failed, and defenses such as double jeopardy, immunity, and entrapment have met with almost no success. Similarly, "zealous representation" and "impossibility of success" have also failed as defenses. The "fear of reprisal" defense, on the other hand, has met with some acceptance.

1. Constitutionality

The Omnibus Clause in [sections] 1503 has withstood constitutional challenges for vagueness,(71) overbreadth,(72) and insufficient notice.(73) The Sixth Circuit also found that the statute was not overbroad under the First Amendment, as [sections] 1503 applies only to acts that are designed to obstruct justice.(74) Similarly, the Fifth Circuit has ruled that the Omnibus Clause provides the constitutionally required notice because it states that the Clause punishes all attempts to "obstruct ... the due administration of justice."(75)

2. Double Jeopardy

Because an alleged violation of [sections] 1503 is a specific substantive offense, the defense of double jeopardy has generally failed.(76) Defendants have argued that prosecution under [sections] 1503 cannot be coupled with prosecution under 18 U.S.C. [sections] 1512,(77) 18 U.S.C. [sections] 499,(78) 18 U.S.C. [sections] 371,(79) or 18 U.S.C. [sections] 1623.(80) However, the courts have generally disagreed and found that a dual conviction is not a double jeopardy violation where [sections] 1503 requires proof of at least one element that the other statute does not.(81)

3. Immunity

Similar to the foregoing constitutional challenges, the defense that the obstruction occurred while the defendant was under immunity has not been successful.(82) In most situations, the grant of immunity takes place before the attempt to obstruct justice occurs. Because the [sections] 1503 violation is subsequent to the grant of immunity, the courts have ruled that the immunity does not apply and prosecution under the Omnibus Clause is not barred.(83)

4. Entrapment

The defense of entrapment also has been rejected by most courts.(84) In Osborn v. United States,(85) the Supreme Court ruled that a statement to an attorney from an individual that the individual knew some of the jurors did not establish entrapment when the attorney asked the individual to bribe the jurors.(86)

5. Zealous Representation

The fact that one is an attorney does not provide a defense from prosecution for obstruction despite claims that the Omnibus Clause encroaches upon attorneys' "zealous representation" of their clients.(87) Absent explicit statutory language or contradictory legislative history, courts have been unwilling to insulate attorneys from prosecution for obstruction of justice.(88) In fact, the First Circuit determined that even if a client voluntarily consents to an attorney's strategy, if the attorney's actions violate [sections] 1503, the attorney is not entitled to any special privileges that might preclude conviction for conspiracy to obstruct justice.(89) Rather than accepting as fact an attorney's "facially legitimate explanation," the courts have required that the fact-finder discern the motive which led the attorney to perform the particular action,(90) even where the action itself was not criminal.(91)

6. Impossibility of Success

Since an "endeavor" need not be successful under [sections] 1503,(92) the impossibility of accomplishing the goal of obstructing justice is not a valid defense.(93) Thus, when a grand jury witness was contacted by the defendant in United States v. Bucey,(94) the fact that the witness was actually an agent did not excuse the defendant's attempt to obstruct justice.(95) Similarly, the fact that an individual, who was instructed by the defendant to offer a bribe, never acutally intended to approach the juror did not affect the defendant's prosecution under [sections] 1503.(96)

7. "Fear of Reprisal"

The unique defense of "fear of reprisal" has met with some success. In United States v. Banks,(97) the Eleventh Circuit held that:

a defendant charged with obstructing justice for refusing to testify may,

within a narrow range of unusual and extreme circumstances, be entitled to

acquittal upon proof that his refusal was based solely upon a realistic

and reasonable perception that giving testimony would result in imminent

harm to the safety of the witness or members of his family.(98)

If a defendant raises the defense, the government has the burden to prove that the defendant's motive for testifying was not genuine.(99)

D. Venue

In 1988, Congress, addressing the issue of venue, added Subsection (h) to [sections] 1512 of Title 18 of the United States Code. Section 1512(h) provides that "[a] prosecution under . . . section 1503 may be brought in the district in which the official proceeding (whether or not pending or about to be instituted) was intended to be affected or in the district in which the conduct constituting the alleged offense occurred."(100) Hence, Congress upheld the majority view of venue regarding [sections] 1503 and removed any further debate regarding where Omnibus Clause cases could be brought.(101)

III. WITNESS TAMPERING

A. Scope of Sections 1512 and 1513

The Victim and Witness Protection Act ("VWPA"),(102) which includes [subsections] 1512-1515 of Title 18 of the United States Code,(103) creates a "broad . . . scheme for protecting witnesses."(104) Section 1512 provides comprehensive federal protection of witnesses in two ways.(105) First, it applies witness protection law to any "person."(106) Courts have interpreted the term "person" as providing expansive protection. Thus, [sections] 1512 extends to potential witnesses,(107) grand jury witnesses,(108) and excused witnesses.(109)

Second, it has been interpreted as applying to all witness tampering. In 19c4,8, Congress amended [sections] 1512 to fill a perceived gap in the statute.(110) Prior to 1988, non-coercive witness tampering was not prohibited by [sections] 1512 and was arguably not prohibited by the [sections] 1503 Omnibus provision.(111) By adding the "corruptly persuades" language to [sections] 1512(b), Congress expanded the scope of [sections] 1512 to cover non-coercive witness tampering situations as well as coercive tampering.

Section 1513 similarly provides witness protection against retaliation for having given testimony or other evidence at an official proceeding.(112) Despite the opportunity to bring charges solely under [sections] 1513, a defendant is rarely charged with a [sections] 1513 violation without also being charged under [sections] 1512.(113) This type of coupling of claims has overcome challenges of multiplicity.(114)

B. Elements of a Section 1512(b) Offense

Under [sections] 1512(b), the government must prove that the defendant: (1) knowingly; (2) engaged in intimidation, physical force, threats, misleading conduct, or corrupt persuasion; (3) with intent to influence, delay, or prevent testimony or cause any person to withhold an object or document; (4) from an official proceeding.(115)

1. Knowingly

Section 1512 requires that the defendant "knowingly" commit the prohibited conduct with intent to influence, delay, or prevent the testimony of a witness.(116) It is no longer necessary that the defendant act with a corrupt purpose; rather the defendant need only perform one of the enumerated acts with the intent to "influence" testimony.(117) Nevertheless, [sections] 1512 does exempt innocent remarks from prosecution, as it does not apply to unintentional acts.(118)

While the prosecution must demonstrate that the defendant "knowingly" influenced testimony, it is not required to prove that the defendant knew he or she was tampering with a federal proceeding. Section 1512(f) provides that prosecution for an offense under this section, no state of mind need be proved with respect to the circumstance[s]" of the federal nature of the proceeding or the judge.(119)

2. Engaged in Intimidation

Section 1512(b) specifically prohibits influencing or attempting to influence the testimony of any person by (i) knowingly using or attempting to use "intimidation," "physical force," or threats, or (ii) corruptly persuading another person, or (iii) engaging in "misleading conduct" toward another person.(120)

Federal courts generally have limited the applicability of [sections] 1512 to those methods of influence specifically enumerated.(121) In 1986, in a strikingly narrow interpretation of the statute, the First Circuit determined that attempted murder was not prohibited by [sections] 1512 as a form of witness tampering because the defendant did not attempt to influence the witness' testimony, merely to eliminate it.(122) The court explicitly stated that "killing a witness would render him physically unable rather than mentally unwilling to testify."(123) That same year, Congress amended [sections] 1512 by adding a new subsection which explicitly stated that murder and attempted murder are violations of [sections] 1512.(124) Nevertheless, the Dawlett decision demonstrates the courts' tendency to read [sections] 1512 very narrowly.

Section 1512(b) specifically prohibits the use of threats intended to influence, delay, or prevent the testimony of a witness, or cause a witness to withhold testimony, documents, or objects, or otherwise impede a witness in the discharge of his or her duty.(125) Because the statute focuses on the defendant's endeavor to obstruct justice, rather than on her success, the prosecution is not required to prove that the witness was actually intimidated.(126) Instead, the government need only show that the threats had a tendency to intimidate.(127) The prosecution also is not required to show with particularity which witness or witnesses might be the object of influence or intimidation.(128) However, if the threats do succeed and the defendant is therefore responsible for a witness' absence, the defendant has effectively waived confrontation rights and hearsay objections with respect to statements made by an informant.(129)

Section 1512(b) also prohibits attempting to influence testimony by corruptly persuading another person or by engaging in misleading conduct(130) towards another person with intent to influence the person's testimony in an official proceeding. "Corruptly persuades" does not include "conduct which would be misleading conduct but for a lack of a state of mind."(131) Similarly, the term "misleading conduct" does not encompass situations where the defendant merely urged a witness to give false testimony without resorting to coercive or deceptive conduct.(132)

3. Intent to Influence Testimony

While specific intent to influence the witness is a crucial element of an offense under [sections] 151 2(b), the government need only show that the defendant was aware of the natural and probable consequences of his actions as evidence of his state of mind.(133) Although under [sections] 1512 the actual success in achieving the result is immaterial,(134) demonstrating that the threat could reasonably influence the witness is a factor in proving the defendant's intent.(135) Similarly, under the retaliation statute, [sections] 1513, the prosecution must establish an intent to retaliate,(136) but the government need not establish an intent to carry out the threat.(137)

4. Official Proceeding

Section 1512(b) prohibits tampering with a witness to prevent, delay or hinder testimony in an "official proceeding."(138) However, in order to secure a conviction under [sections] 1512, an official proceeding need not be pending or about to be instituted at the time of the offense.(139) Hence, an investigation by a federal agency may constitute an "official proceeding" within the meaning of [sections] 1512(e).(140) Furthermore, if an individual realizes that a federal proceeding might be commenced and acts in such a manner as to affect potential testimony, conviction under [sections] 1512 is permissible.(141) However, an investigation by a state agency has not been recognized as an "official proceeding" under [sections] 1512.(142)

C. Defenses

1. Affirmative Defense Under Section 1512

Section 1512(d) provides for an affirmative defense under which defendants may prove by a preponderance of the evidence that their "conduct consisted solely of lawful conduct" and that their "sole intention was to encourage, induce, or cause the other person to testify truthfully."(143)

The Second Circuit has rejected an argument that the affirmative defense provision was a nullity because one could not simultaneously possess the intent to cause a witness to withhold evidence and the "sole intent" to encourage truthful testimony.(144) Once the government had met its burden of proof beyond a reasonable doubt that the defendant intended to cause the witness to withhold testimony, the defendant still could satisfy the intent prong of an affirmative defense by proving, by a preponderance of the evidence, that the evidence he wanted the witness to withhold was false testimony.(145) The court noted that such a reading of [sections] 1512(d) comports with the Senate Judiciary Committee's view of the affirmative defense as being "intended primarily to avoid the possibility that a [judge or other officer of the court] would violate this statute by threatening a witness or potential witness with a perjury or false statement prosecution if he testifies falsely."(146)

2. Constitutionality of Section 1512

Section 1512 has been upheld against a variety of constitutional challenges, including objections based on vagueness,(147) double jeopardy,(148) and the First Amendment.(149) Similarly, the affirmative defense provision of the statute has been upheld against due process challenges.(150) Defendants have unsuccessfully argued that this provision impermissibly shifts the burden of persuasion by requiring the defendant to disprove the relevant mens rea.(151)

D. Venue for Prosecution Under Section 1512

Section 1512(h) states that a witness tampering prosecution may be brought "in the district in which the official proceeding (whether or not pending or about to be instituted) was intended to be affected or in the district in which the conduct constituting the alleged offense occurred."(152) Venue under [sections] 1512 is not subject to a higher burden of proof than venue generally.(153)

IV. Penalties

A. Section 1503

An obstruction of justice offense carries with it the potential for imprisonment, a fine, or both. Section 1503(b) explains the various penalties for different offenses of [sections] 1503(a).(154) The maximum penalty for an obstruction of justice violation is incurred when the obstruction is a killing. In such a case, the potential penalty is death or life imprisonment under [subsections] 1111 and 1112.(155) When the offense does not result in a killing, but is an attempted killing, the maximum penalty is imprisonment for twenty years, a fine, or both.(156) Any other [sections] 1503 violation carries with it a potential punishment of no more than a ten-year imprisonment, a fine, or both.(158)

Defendants convicted under [sections] 1503 are sentenced in accordance with [sections] 2J1.2 of the Federal Sentencing Guidelines.(158) Section 2J1.2 has a base offense level of twelve.(159) If the offense involves a threat to cause physical injury to a person, actually causing such an injury, or property damage,(160) the offense level is increased by eight.(16) Additionally, if the defendant succeeded in substantially interfering with the administration of justice,(162) the offense level is increased by three.(163) Furthermore, if the Court finds that the crime is unusually heinous or brutal, it may make upward departures from the sentencing range of the Guidelines.(164)

If the defendant obstructed the investigation or prosecution of a criminal offense, the Court has an alternate method for calculating the offense level. Section 2J1.2(c) provides that the court apply [sections] 2X3.1, the sentencing guideline for "Accessory After the Fact," if the resulting offense level will be greater than that determined by applying [subsections] 2J1.2(a),(b).(165) The base offense level for [sections] 2X3. 1 is six levels lower than the offense level of the crime to which the defendant is convicted of being an accessory.(166) The base offense level is not to exceed thirty or to be lower than four.(167) Furthermore, when the conduct is limited to harboring a fugitive, the offense level is to be no greater than twenty.(168)

Before 1991, there was some debate as to whether the cross-reference to [sections] 2X3.1 allowed a defendant to be sentenced as an "Accessory After the Fact" to his own crime.(169) However, in 1991 [sections] 2J1.2 was amended to provide that the cross reference to [sections] 2X3.1 is to be applied "when the obstruction is in respect to a particularly serious offense, whether such offense was committed by the defendant or another person."(170) While this addition answered the previous debate,(171) it created a new one. Courts are now undecided as to whether the amendment was a substantive change or a clarifying addition. The Ninth Circuit has determined that the amendment was a substantive change; and, thus, the cross reference to [sections] 2X3.1 does not apply to crimes that were committed before the amendment s effective date.(172) However, other circuits have interpreted the amendment as clarifying because they have applied the cross reference to conduct that occurred before 1991.(173)

B. Sections 1512 and 1513

As with [sections] 1503, the maximum penalty for violation of [subsections] 1512 and 1513 where the offense is a killing is death or life imprisonment, the maximum punishment for any offense that is a killing.(174) In the case of an attempted killing, the punishment for both witness tampering (18 U.S.C. [sections] 1512) and retaliation (18 U.S.C. [sections] 1513) is imprisonment for not more than twenty years.(175) Any other violation of 18 U.S.C. [sections] 1513 carries a maximum imprisonment of ten years, a fine,(176) or both.(177)

Section 1512(b) explains that the penalty for knowingly using intimidation or physical force, threatening or corruptly persuading another person, or engaging in misleading conduct shall be imprisonment for not more than ten years, a fine,(178) or both.(179) Similarly, a violation of [sections] 1512(c), which entails intentionally harassing an individual, carries with it a penalty of not more than one year imprisonment, a fine,(180) or both.(181)

The Federal Sentencing Guidelines that cover [sections] 1512 are U.S.S.G. [subsections] 2A1.1, 2A1.2, 2A1.3, 2A2.1, 2A2.2, and 2J1.2.(182) Defendants who are convicted under [sections] 1512(a) are sentenced in accordance with [subsections] 2A1.1, 2A1.2, 2A1.3, or 2A2.1, depending on the specific offense.(183) The base level for [sections] 2A1.1 is forty-three;(184) for [sections] 2A1.2 it is thirty-three;(185) for [sections] 2A1.3, twenty-five,(186) and for [sections] 2A2.1, twenty-eight, if the offense would have constituted first degree murder; and twenty-two for other offenses.(187) In determining the sentence for a conviction under [sections] 1512(b), [subsections] 2A1.2, 2A2.2, and 2J1.2 should be applied,(188) and for calculating the sentence for a [sections] 1512(c) conviction, [sections] 2J1.2 is used.(189) The sentencing guideline for a conviction under [sections] 1513 is also [sections] 2J1.2.(190)

C. Violations of Other Sections

Section 3C1.1 provides that if a defendant willfully obstructs or impedes the administration of justice, the base offense level of the crime in furtherance of which the obstruction occurred can be increased by two levels.(191) This increase in base offense level does not apply to any convictions under [subsections] 1503, 1512, or 1513 unless the defendant obstructed or attempted to obstruct the investigation or trial of an obstruction of justice count.(192) First Amendment challenges to this enhancement have failed.(193) (1.) Black's Law Dictionary 1078 (6th ed. 1990)

(2.) 18 U.S.C. [sections] 1503 (1994).

(3.) 18 U.S.C. [sections] 1505.

(4.) Id.

(5.) 18 U.S.C. [sections] 1503.

(6.) The Omnibus Obstruction Provision provides:

Whoever corruptly, or by threats,or force, or by any threatening letter

or communication, endeavors to influence, intimidate, or impede any grand

or petit juror, or officer in or of any court of the United States,

or officer who may be serving at any examination or other proceeding

before any United States magistrate judge or other committing magistrate,

in the discharge of his duty, or injures any such grand or petit juror in

his person or property on account of any verdict or indictment assented to

by him, or on account of his being or having been such juror,

or injures any such officer, magistrate judge, or other committing

magistrate in his person or property on account of the performance of his

official duties, or 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, shall be

punished as provided in subsection (b).

18 U.S.C. [sections] 1503(a).

(7.) See United States v. Kenny, 973 F.2d 339, 342 (4th Cir. 1992) (discussing ramifications of the 1982 amendment to [sections] 1503, the court determined that [sections] 1512 is not the only vehicle for prosecution of witness tampering); United States v. Moody, 977 F.2d 1420, 1424 (11th Cir. 1992) (same). See also United States v. Aguilar, 21 F.3d 1475,1485-86 (9th Cir. 1994) (concluding Congress did not intend [sections] 1512, on witness tampering, to preclude all charges of obstruction of justice involving witnesses under [sections] 1503), rev'd on other grounds, 115 S. Ct. 2357 (1995); United States v. Jackson, 850 F. Supp. 1481, 1499 (D. Kan. 1994) ("The compelling weight of authority is in favor of holding that the residual clause [sections] 1503 was not amended in 1982 and remains broad enough to cover proscribed acts against a witness.").

(8.) Section 1512(a)(1) provides in pertinent part:

Whoever kills or attempts to kill another person, with intent to prevent

the attendance or testimony of any person in an official proceeding;

prevent the production of a record, document, or other object, in an

official proceeding; or 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; shall be punished as provided in paragraph (2).

(9.) United States v. Moree, 897 F.2d 1329, 1333 (5th Cir. 1990). The Fifth Circuit noted that "[i]t is hard to imagine a more invidious obstruction of justice" than attempted bribery of officers of the judicial system in order to "fix the result of a trial." Id See United States v. Walasek, 527 F.2d 676, 679 (3d Cir. 1975) (stating that a corrupt attempt to influence, such as bribery, clearly falls under conduct proscribed by [sections] 1503).

(10.) See Sneed v. United States, 298 F.911, 912 (5th Cir. 1924) (interpreting the statutory predecessor of the Omnibus Provision, the court concluded that although the United States was not a party to obstructed civil proceeding, "[t]he justice being administered was the justice of the United States, and its purity and freedom is to be protected by federal law").

(11.) See infra part II.B.2. of this article (discussing meaning of "corruptly").

(12.) 18 U.S.C. [sections] 1503(a).

(13.) Id. ("[w]hoever . . . endeavors to influence, obstruct, or impede, the due administration of justice, shall be "fined or imprisoned).

(14.) See United States v. Johnson, 713 F.2d 654, 661 (11th Cir. 1983) (to establish a violation of [sections] 1503, government required to prove that each defendant specifically intended to impede the administration of justice); United States v. Metcalf, 435 F.2d 754,756 (9th Cir. 1970) (stating [sections] 1503 is designed to prevent a miscarriage of justice).

(15.) See United States v. Thomas, 916 F.2d 647, 650 (11th Cir. 1990) ([sections] 1503 pertains to any corrupt act committed which obstructs justice); United States v. Brown, 688 F.2d 596, 598 (9th Cir. 1982) (proscribed conduct not limited to impeding or threatening conduct); United States v. Griffin, 589 F.2d 200, 205 (5th Cir. 1979) ([sections]1503 is violated by person who gives false testimony to grand jury); United States v. Howard, 569 F.2d 1331, 1333-35 (5th Cir. 1978) (bribery of judge to disclose secret grand jury testimony violates Omnibus Clause of [sections] 1503); Walasek, 527 F.2d at 679-81 (destruction of evidence targeted for grand jury investigation violates Omnibus Clause of [sections] 1503).

(16.) Ejusdem generis is a canon of statutory construction that requires "where general words follow the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general class as those enumerated." Black's Law Dictionary, supra note 1, at 517. See Aguilar, 21 F.3d at 1486 (citing United States v. Ryan, 455 F.2d 728, 733 (9th Cir. 1971) (applying the doctrine of ejusdem generic, under [sections] 1503, "offense charged must be similar to those specified in the statute")).

(17.) See Aguilar, 21 F.3d at 1486 (interpreting Omnibus Clause to cover acts similar in nature to those mentioned by statute's specific language).

(18.) Howard, 569 F.2d at 1333. The Court cited legislative history to justify its reading of the statute. Section 1503 originated as the second section of the Act of March 2, 1831, 4 Stat. 487. The first section of that act is now 18 U.S.C. [sections] 401. Id. at 1336. The entire Act was intended to punish various conduct committed in contempt of court. Id. at 1336. Section 401 covers "contempts that occurred within the court's presence while . . . section 1503 was aimed at out-of-court contempts." Id, at 1336.

(19.) See infra part III.A. of this article (outlining the scope of [sections] 1512). Compare Moody, 977 F.2d at 1423-24 (Section 1503 permits conviction for witness tampering, despite removal of specific reference to witnesses from [sections] 1503 and enactment of [sections] 1512, which specifically deals with witness tampering); and United States v. Rovetuso, 768 F.2d 809, 823-24 (7th Cir. 1985) (same) with United States v. Masterpol, 940 F.2d 760, 762 (2d Cir. 1991) (witness tampering does not come within Omnibus Clause of [sections] 1503, due to 1982 amendment deleting all references to witnesses from [sections] 1503 and 1988 enactment of witness tampering statute [sections] 1512).

(20.) 18 U.S.C. [sections] 1503. See United States v. Barfield, 999 F.2d 1520, 1522-23 (11th Cir. 1993) (government need not prove administration of justice actually impeded or obstructed); United States v. Tedesco, 635 F.2d 902, 907 (1st Cir. 1980) (same); United States v. Baker, 611 F.2d 964, 967 (4th Cir. 1979) (statute requires only proof of an endeavor, irrespective of its success).

(21.) United States v. Wood, 6 F.3d 692, 695 (10th Cir. 1993); United States v. Neal, 951 F.2d 630, 632 (5th Cir. 1992); United States v. Williams, 874 F.2d 968, 977 (5th Cir. 1989); United States v. Bucey, 876 F.2d 1297, 1314 (7th Cir. 1989); Jackson, 850 F. Supp. at 1499-1500; United States v. Smith, 729 F. Supp. 1380, 1383-84 (D.D.C. 1990). See also United States v. Biaggi, 853 F.2d 89, 104 (2d Cir. 1988) (finding evidence sufficient to support conviction of a Congressman who, aware of the grand jury investigation, called another subject of the investigation and told him not to reveal certain facts).

(22.) See United States v. Rankin, 870 F.2d 109, 112 (3d Cir. 1989) ("It is . . . well established that no greater specificity than the statutory language is required so long as there is sufficient factual orientation to permit the defendant to prepare his defense and to invoke double jeopardy in . . . a subsequent prosecution."); Jackson, 850 F. Supp. at 1499-1500 (emphasizing that the elements to a residual clause violation of [sections] 1503 are those cited above).

(23.) United States v. Mullins, 22 F.3d 1365, 1370 (6th Cir. 1994); United States v. Nelson, 852 F.2d 706, 709-10 (3d Cir. 1988); United States v. Reed, 773 F.2d 477, 485 (2d Cir. 1985); United States v. McComb, 744 F.2d 555, 560 (7th Cir. 1984); Walasek, 527 F.2d at 678; United States v. Rogers, 636 F. Supp. 237, 252 (D. Colo. 1986).

(24.) See Aguilar, 21 F.3d at 1483 (false and misleading statement made to FBI agents is governed not by [sections] 1503 but by 18 U.S.C. [sections] 1001, which concerns false statements to federal agencies in pending proceedings); United States v. Tham, 960 F.2d 1391, 1400 (9th Cir. 1992) ("a defendant cannot be convicted under [sections] 1503 for impeding the function of the FBI"); Brown, 688 F.2d at 598 (interference with execution of search warrant does not constitute obstruction of justice for purposes of [sections] 1503); cf. McComb, 744 F.2d at 562 (speculating about, but not deciding whether an FBI investigation relating to a pending proceeding is covered within the language of [sections] 1503); see also infra part III.B.4. of this article (discussing official proceeding requirement under [sections] 1512).

(25.) Aguilar, 21 F.3d at 1484. The lack of a pending proceeding will lead to the dismissal of an obstruction of justice charge. In United States v. Smith, 729 F. Supp. 1380 (D.D.C. 1990), a District of Columbia police officer who turned in only 15 of 18 packets of government-manufactured counterfeit cocaine following an undercover operation was charged with, among other things, obstruction of justice. Id. at 1382. The court held that the charges had to be dismissed, in part because there was no pending judicial proceeding at the time, and "the theoretical possibility that a federal indictment could be brought does not seem sufficient. " Id. at 1385.

(26.) Section 1505 contains two clauses, one prohibiting obstruction of process under the Antitrust Civil Process Act (15 U.S.C. [subsections] 1311-14), and a second (Omnibus Clause) which is parallel to [sections] 1503 and also requires a corrupt endeavor and a pending proceeding. The phrase "pending proceedings" has been broadly construed. See, e.g., United States v. Schwartz, 924 F.2d 410, 423 (2d Cir. 1991) (Customs Service interview deemed a pending proceeding); United States v. Leo, 941 F.2d 181, 199 (3d Cir. 1991) (Defense Contracting Audit Agency investigation on behalf of Defense Department found to constitute pending proceeding); United States v. Vixie, 532 F.2d 1277, 1278 (9th Cir. 1976) (IRS investigation deemed a pending proceeding); United States v. Abrams, 427 F.2d 86, 90 (2d Cir. 1970) (Immigration and Naturalization Service proceeding deemed a pending proceeding); United States v. Batten, 226 F. Supp. 492, 494 (D.D.C. 1964) (Securities and Exchange Commission proceeding was pending proceeding). However, an FBI investigation is not, for the purpose of [sections] 1505, a pending proceeding. United States v. Higgins, 511 F. Supp. 453, 455 (W.D. Ky. 1981).

(27.) United States v. Casel, 995 F.2d 1299, 1306 (5th Cir. 1993), cert. denied, 114 S. Ct. 1308 (1994); Wood, 6 F.3d at 695, Nelson, 852 F.2d at 709; United States v. Cintolo, 818 F.2d 980, 990 (1st Cir. 1987); McComb, 744 F.2d 560; United States v. Moon, 718 F.2d 1210, 1236 (2d Cir. 1983).

(28.) 652 F. Supp. 1451 (S.D. Miss. 1987).

(29.) Id. at 1453.

(30.) 724 F.2d 451 (5th Cir. 1984).

(31.) Id. at 455. But see Nelson, 852 F.2d at 710 (stating that not every investigation in which grand jury subpoenas are used ripens into a grand jury investigation and prescribing a case-by-case inquiry for determining whether an investigation has begun); McComb, 744 F.2d at 561 (same).

(32.) 435 F.2d 754 (9th Cir. 1970).

(33.) Id. at 756.

(34.) 752 F.2d 1485 (9th Cir. 1985).

(35.) Id. at 1491-1492. The fact that the complaint was filed minutes after the interview instead of minutes before was immaterial. Although the court does not emphasize this fact, the defendant had met with an attorney and signed a consent form agreeing to waive her right to trial and sentencing before a district judge.

(36.) United States v. Fernandez 837 F.2d 1031, 1034 (11th Cir. 1988) (rejecting defendant's assertion that a proceeding was no longer pending at the conclusion of the sentencing hearing when obstruction occurred, as a post-sentence appeal could still be filed).

(37.) Williams, 874 F.2d at 977; United States v. Guzzino, 810 F.2d 687, 696 (7th Cir.1987); United States v. Ardito, 782 F.2d 358, 361 (2d Cir. 1986).

(38.) United States v. Bashaw, 982 F.2d 168, 170 (6th Cir.1992) (citing United States v. Jeter, 775 F.2d 670, 675 (6th Cir. 1985)). See also United States v. Anderson, 798 F.2d 919, 928 (7th Cir. 1986) (specific intent to impede administration of justice essential element of obstruction of justice); Jeter, 775 F.2d at 679 (defendant's illicit action in distributing carbons of top secret grand jury transcripts was not inadvertent, negligent, or even reckless non-purposeful disclosure, but was done with specific intent to obstruct); Moon, 718 F.2d at 1236 (court set aside an obstruction conviction despite ample proof that loan agreements produced pursuant to a subpoena were back-dated, because the court found no evidence of specific intent to submit false documents to the grand jury in order to impede its investigation); United States v. Rasheed, 663 F.2d 843, 847 (9th Cir. 1981) (defendant must willfully conceal or endeavor to conceal documents from jury).

(39.) United States v. Laurins, 857 F.2d 529, 536-37 (9th Cir. 1988) (citing Rasheed, 663 F.2d at 852).

(40.) Thomas,916 F.2d at 651 (citations omitted).

(41.) Id. See also United States v. Banks, 988 F.2d 1106, 1109 (11th Cir. 1993) (in order to be convicted of obstruction charge, defendant's conduct must have had natural and probable effect of obstructing justice); Bashaw, 982 F.2d at 172 (same); Thomas, 916 F.2d at 652 (same); United States v. Buffalano, 727 F.2d 50, 54 (2d Cir. 1989) (same); Bucey, 876 F.2d at 1314 (same); United States v. Silverman, 745 F.2d 1386, 1393 (11th Cir. 1984) (same). (42.) See United States v. Jespersen, 65 F.3d 993, 1000-01 (2d Cir. 1995) (evidence that defendant knew of grand jury investigation into Internal Revenue Service contracting practices when he falsified contract sufficient to establish corrupt intent); McComb, 744 F.2d at 561 (altering minutes submitted to grand jury to provide "innocent gloss" on previously submitted documents suggested specific intent); United States v. White, 557 F.2d 233, 235-36 (10th Cir. 1977) (specific intent may be established by circumstantial evidence); Jackson, 607 F.2d at 1222 (evidence from which jury could conclude defendant with specific intent attempted to unlawfully influence jurors permitted finding that defendant acted corruptly).

(43.) See Jeter, 775 F.2d at 676 (mens rea for [sections] 1503 is the general intent of knowledge and the specific intent of purpose to obstruct; any endeavor to obstruct, impede or interfere with a witness is considered corrupt behavior).

(44.) Mullins, 22 F.3d at 1369 (jury instructions may use the word "corruptly" to describe intent); Barfield, 999 F.2d at 1525 (same); Cintolo, 818 F.2d at 991 ("any act by any party . . . may abridge [sections] 1503 if performed with a corrupt motive"); United States v. Brand, 775 F.2d 1460, 1465 (11th Cir. 1985) ("the term `corruptly' is the specific intent of the came"); United States v. Partin, 552 F.2d 621, 622 (5th Cir. 1977) (same).

(45.) Barfield, 999 F.2d at 1524 (government must establish that action was undertaken with corrupt motivation); Thomas, 916 F.2d at 651 (same); Cintolo, 818 F.2d at 991 (same); United States v. Howard, 569 F.2d 1331, 1336 n.9 (5th Cir. 1978) (same).

(46.) United States v. Thompson, 76 F.3d 442, 452 (2d Cir. 1996) (citing Rasheed, 663 F.2d at 852); see also United States v. Machi, 811 F.2d 991, 996 (7th Cir.1987) (defining "corrupt" to mean that the act tee done with the purpose of obstructing justice); Jeter, 775 F.2d at 679 (same); United States v. Laurins, 857 F.2d 529, 536 (9th Cir. 1988) (same); United States v. Ogle, 613 F.2d 233, 238 (10th Cir. 1979) (same).

(47.) Banks, 942 F.2d at 1578; Rasheed, 663 F.2d at 852; Panin, 552 F.2d at 641.

(48.) Barfield, 999 F.2d at 1525 (additional "evil" element need not be proved); United States v. Reeves, 752 F2d 995, 998 (5th Cir. 1985) (same); Ogle, 613 F.2d at 239 (same).

(49.) "Endeavor" is defined as any attempt or effort aimed at obstructing justice. To violate the statute, it is not necessary that the attempt be successful. Thomas, 916 F.2d at 651. The term endeavor is interchangeable with the term "willful." United States v. Haas, 583 F.2d 216, 220 (5th Cir. 1978). See Part II.B.3.c. infra for a discussion of endeavor within the meaning of the statute.

(50.) Banks, 942 F. 2d at 1578 ("it is clear that the knowing destruction or concealment of documentary evidence can constitute a violation of [sections] 1503"); Laurins, 857 F.2d at 536 ("failure to provide documents is a violation of section 1503"); McComb, 744 F.2d at 559 (rejecting the argument that alteration of records is not a cognizable offense under the [sections] 1503 omnibus provisions); Walasek, 527 F.2d at 680 (withholding or destruction of tangible evidence falls under [sections] 1503).

(51.) Richmark Corp. v. Timber Falling Consultants, 730 F. Supp 1525, 1532 (D. Or. 1990) (holding that, in light of the extensive remedies available in civil discovery disputes, [sections] 1503 should not be extended to cover civil cases).

(52.) Banks, 988 F.2d at 1578 (citing Rasheed, 663 F.2d at 852-53); United States v. Faudman, 640 F.2d 20, 21 (6th Cir. 1981) (altering and defacing company records, at a time when a federal grand jury was investigating fraud, was corruptly endeavoring to impede a witness before a grand jury and was within a class of acts prescribed by [sections] 1503). See United States v. Lench, 806 F.2d 1443, 1445 (9th Cir. 1986) (finding obstruction where defendant, claiming documents did not exist, had actually removed them from the business premises to his garage); McComb, 744 F.2d at 555 (upholding a conviction under [sections] 1503 where defendant prepared false minutes and produced them pursuant to a grand jury subpoena in order to provide an "innocent gloss" for records previously submitted to the grand jury); see also Part II.B.2. infra (describing "intent").

(53.) United States v. Shannon, 836 F.2d 1125, 1128-29 (8th Cir. 1988) (upholding conviction where outdated records were destroyed or made useless); United States v. McKnight, 799 F.2d 443, 44647 (8th Cir. 1986) (destruction of outdated bank records which were subpoenaed constitutes obstruction under [sections] 1503).

(54.) Mullins, 22 F.3d at 1370.

(55.) United States v. Ruggiero, 934 F.2d 440, 446, 450 (2d Cir. 1991).

(56.) See False Statements article in this issue (discussing scope, elements and interpretations of 18 U.S.C. [sections] 1001).

(57.) United States v. Barfield, 999 F.2d at 1524 (11th Cir. 1993) (existence of false statement about government's case made to attorney in underlying criminal case materially altered its approach and prevented the introduction of key evidence, and thus, constituted an obstruction of justice). See also United States v. Fields, 838 F.2d 1571, 1572 (11th Cir. 1988) (affirming [sections] 1503 conviction based on obtaining false statement with the intent that it be used in a judicial proceeding); United States v. London, 714 F.2d 1558, 1560 (11th Cir. 1983) (attorney obstructed justice when he forged the signatures of a judge and clerk on a fraudulent order requiring his clients to pay fees in resolution of their suit, when the genuine order granted judgment in favor of his clients and absolved them of liability).

(58.) United States v. Susskind, 965 F.2d 80, 85 (6th Cir. 1992) ("false testimony standing alone, is not an obstruction of justice"); United States v. Thomas, 916 F.2d 647, 652 (11th Cir. 1990) (same); United States v. Rankin, 870 F.2d 109. 111 (3d Cir. 1989) (same); United States v. Griffin, 589 F.2d 200, 205 (5th Cir. 1979) (same); United States v. Cohn, 452 F.2d 881, 883 (2d Cir. 1971) (same).

(59.) Barfield, 999 F.2d at 1523; see also United States v. Wood, 6 F.3d 692, 697 (10th Cir. 1993) (no violation of [sections] 1503 even though the defendant gave false statements to the FBI during a grand jury investigation with specific intent to impede because the statements did not have the natural and probable effect of impeding the due administration of justice); Thomas, 916 F.2d at 652, 654 (government did not offer sufficient evidence that defendant-appellant attorney's alleged falsehoods had the natural and probable effect of obstructing justice); United States v. Plascencia-Orozco, 768 F.2d 1074, 1077 (9th Cir. 1985) (defendant who deliberately concealed his criminal record by giving a false identity to a federal magistrate, preventing the magistrate from discovering facts necessary to exercise his discretionary sentencing function, indictable under [sections] 1503).

(60.) See Thomas, 916 F.2d at 652 (where either false or evasive testimony is the basis of a [sections] 1503 charge, the government must show actual obstruction); Perkins, 748 F.2d at 1528 (same). See also Griffin, 589 F.2d at 205 (evasive testimony properly prosecuted as obstruction under [sections] 1503); Cohn, 452 F.2d at 883-84 (same); Muniz, 650 F. Supp. at 488 n.8 (same); Caron, 551 F. Supp. at 667 n.6 (same); United States v. Thoreen, 653 F.2d 1332, 1341 (9th Cir. 1981) (same); Thomas, 916 F.2d at 652 (same).

(61.) See United States v. Kenny, 973 F.2d 339, 343 (4th Cir. 1992) (attempting to have grand jury witness give false testimony violates [sections] 1503); United States v. Brown, 948 F.2d 1076, 1080 (8th Cir. 1991) (sustaining a conviction under [sections] 1503 based on the testimony of one witness that defendant had asked her to testify falsely for him at trial); United States v. Tranakos, 911 F.2d 1422, 1432 (10th Cir. 1990) ([sections] 1503 applies to "elliptical suggestions" to lie in a judicial proceeding as much as to direct commands); United States v. Silverman, 745 F.2d 1386, 1394-95 (11th Cir 1984) (upholding conviction of attorney who, through false representations, induced client to plead guilty); United States v. Howard, 569 F.2d 1331, 1335 (5th Cir. 1978) (upholding conviction of defendant for selling grand jury transcripts).

(62.) United States v. Davis, 1 F.3d 606, 609 (7th Cir. 1993) (defendant indicted for tricking his attorney into providing false testimony in grand jury investigation).

(63.) See Barfield, 999 F.2d at 1525 (an individual need not be a party to the proceeding in question to violate [sections] 1503); Silverman, 745 F.2d at 1394-95 (upholding conviction of attorney who, through false representations, induced client to plead guilty); Howard, 569 F.2d at 1335 (upholding conviction of a non-party defendant for selling grand jury transcripts).

(64.) See Wood, 6 F.3d at 695 (although the defendant need not succeed in his attempt to obstruct justice, his conduct must be such that its likely effect would be to impede the due administration of justice); United States v. Barfield, 999 F.2d 1520, 1522-23 (11th Cir. 1993) (same); Bashaw, 982 F.2d at 172 (same); Bucey, 876 F.2d at 1314 (same); Williams, 874 F.2d at 981 (same); United States v. Leisure, 844 F.2d 1347, 1366 (8th Cir. 1988) (same); Buffalano, 727 F.2d at 53 (same); Rasheed, 663 F.2d at 853 (same); United States v. Cintolo, 818 F.2d 980,990 (1st Cir. 1987) (same); United States v. Baker, 611 F.2d 961, 967 (4th Cir. 1979) (same).

(65.) United States v. Brand, 775 F.2d 1460, 1465 (11th Cir. 1985); Buffalano, 727 F.2d at 53 (citing United States v. Russell, 255 U.S. 138, 143 (1921)).

(66.) See Buffalano, 727 F.2d at 53-54 ("an `endeavor' is less than an attempt," thus the defendant's offer to party to "fix" his sentence was an endeavor to "will a person into a false sense of security" fraudulently by deterring him from taking an active role in his sentencing); United States v. Lazzerini, 611 F.2d 940, 941-42 (1st Cir. 1979) (endeavor can be found when person suggests several times that his listener convey message to juror that defendant was good person); United States v. Fasolino, 586 F.2d 939, 940-41 (2d Cir. 1978) (one who asks another to speak to a judge about pending case endeavors to influence judge). See also United States v. Russell, 255 U.S. 138, 143 (1921) (stating that the word "endeavor" is not subject to the technical limitations of the word "attempt"); United States v. Rovetuso, 768 F.2d 809, 821-22 (7th Cir. 1985) (an "attempt" requires proof that "substantial steps" were taken to commit the crime).

(67.) See United States v. Cammisano, 917 F.2d 1057, 1060 (8th Cir. 1990) (affirming defendant's conviction under [sections] 1503, which does not require the use of threats or force, and his acquittal under [sections] 1512, which does); United States v. Jeter, 775 F.2d 670, 677 (6th Cir. 1985) (upholding conviction of defendant for participating in the distribution of transcript carbons from secret grand jury proceedings); United States v. Reeves, 752 F.2d 995, 999 (5th Cir. 1985) (stating that endeavors to obstruct need not involve force or threat of force); United States v. Rasheed, 663 F.2d 843, 851-52 (9th Cir. 1981) (affirming conviction for concealing documents subpoenaed by a grand jury); United States v. Ogle, 613 F.2d 233, 239 (10th Cir. 1979) (affirming a conviction based on defendant's attempt to have a juror read a certain book to influence the juror's decision, and rejecting defendant's contention that a corrupt effort necessarily involves threats or force).

(68.) See Bucey, 876 F.2d at 1314 (defendant could still be convicted of obstructing justice, even though the subject of defendant's alleged attempted illegal influence was an undercover agent); United States v. Rosner, 485 F.2d 1213, 1228 (2d Cir. 1973) (same).

(69.) See Barfield, 999 F.2d at 1525 (affirming conviction where defendant obstructed justice by giving false information about the government's case to the attorney for the defendant in the underlying proceeding, resulting in the government dropping one charge against the underlying defendant); United States v. Fields, 838 F.2d 1571, 1574-75 (11th Cir. 1988) (distinguishing the case in which a false statement does not exist from the situation under review where the statement existed but was never submitted to the prosecutor or to the court).

(70.) See United States v. Barber, 881 F.2d 345, 351 (7th Cir. 1989) (defendant can be convicted of obstruction of justice even if the letters he forged did not actually influence the court in its sentencing determination); United States v. Collis, 875 F. Supp. 398, 400 (E.D. Mich. 1995) (same).

(71.) See Jeter, 775 F.2d at 677-79 (the section is not void-for-vagueness under the Fifth Amendment); United States v. Marionneaux, 514 F.2d 1244, 1249 (5th Cir. 1975) (same).

(72.) See United States v. Griffin, 589 F.2d 200, 206 (5th Cir. 1979) ("[t]he omnibus clause of the statute clearly states that it punishes all endeavors to obstruct the due administration of justice").

(73.) Jeter, 775 F.2d at 678-679.

(74.) Id. at 678.

(75.) Howard, 569 F.2d at 1336-37 n.9; see also Griffin, 589 F.2d at 206 ("We . . . reject the argument that [sections] 1503 does not give fair notice that it outlaws the defendant's conduct.").

(76.) See United States v. Susskind, 965 F.2d 80, 85 (6th Cir. 1992) (charges under [sections] 1503 and [sections] 1623, conspiracy to submit false declarations, are separate and distinct offenses); Wood, 958 F.2d at 965-66 (prosecution for both false statements and obstruction of justice is not barred by double jeopardy); United States v. Risken, 788 F.2d 1361, 1369 (8th Cir. 1986) (defendant's conviction under both obstruction of justice and witness tampering statutes did not violate his double jeopardy rights); United States v. Lewis, 876 F. Supp 308, 311 (D. Mass. 1994) (test for determining if same act constitutes a violation of two separate offenses is "whether each [statute] requires proof of fact that the other does not") (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)).

(77.) Risken, 788 F.2d at 1369.

(78.) United States v. Hubbard, 474 F. Supp. 90, 93 (D.D.C.), aff'd, 668 F.2d 1238 (D.C. Cir 1981).

(79.) United States v. Twomey, 806 F.2d 1136, 1143 (1st Cir. 1986).

(80.) Susskind, 965 F.2d at 85; Lewis, 876 F. Supp at 311.

(81.) See Risken, 788 R2d at 1369 (defendant's conviction under both [sections] 1503 and [sections] 1512 was not violation of double jeopardy because [sections] 1503 violation requires element that is not part of [sections] 1512); Twomey, 806 F.2d at 1143 (separate convictions under [sections] 371 and [sections] 1503 are permissible because each requires proof of facts which the other does not); Lewis, 876 F. Supp at 311-12 ([sections] 1503 and [sections] 1623(a) are permissible because each contains an element the other does not). But see United States v. Williams, 858 F.2d 1218, 1226 (7th Cir. 1988) (government conceded that convictions for conspiracy to obstruct justice under both [sections] 1503 and [sections] 1512 violated double jeopardy).

(82.) See United States v. Brimberry, 779 F.2d 1339, 1346-47 (8th Cir 1985) (immunity did not apply to obstruction of justice charge because the charges related to events that took place subsequent to the immunity grant); United States v. Black, 776 F.2d 1321, 1326 (6th Cir. 1985) ("immunity agreement does not apply to prosecution for perjury and obstruction of justice"); United States v. McGee, 798 F. Supp.53,58 (D. Mass.1992) (grant of immunity does not bar use of defendant's immunized testimony on obstruction of justice counts); United States v. DeSalvo, 797 F. Supp. 159, 164-65 (E.D.N.Y. 1992) (immunity did not apply to obstruction of justice charge because the charge related to events that took place subsequent to the immunity grant); United States v. Caron, 551 F. Supp. 662, 671-72 (E.D. Va. 1982) (since alleged obstruction of justice had to have taken place following grant of immunity to defendant, use of immunized testimony against defendant on obstruction of justice charges was permissible), aff'd, 722 F.2d 739 (4th Cir. 1983).

(83.) See Brimberry, 779 F.2d at 1346 (grant of immunity was given subsequent to attempted obstruction of justice); Black, 776 F.2d at 1326 (same); DeSalvo, 797 F. Supp. at 165 (same).

(84.) See Williams, 858 F.2d at 1225-26 (government's use of a co-conspirator as their informant did not constitute entrapment as a matter of law, despite allegations that the informant encouraged the defendants to formulate a plan to eliminate witnesses); United States v. Quinn, 543 F.2d 640, 648 (8th Cir. 1976) (conduct of federal agents in coaching voluntary informers on what questions to ask and what answers should be provided when talking with defendants did not constitute entrapment); United States v. Rosner, 485 F.2d 1213, 1220-23 (2d Cir. 1973) (conduct of government agent in posing as a corrupt police officer able to obtain material relating to a grand jury investigation involving the defendant did not constitute entrapment as a matter of law).

(85.) 385 U.S.323 (1966).

(86.) Id. at 331-32.

(87.) United States v. Cintolo, 818 F.2d 980, 990, 995-96 (1st Cir. 1987).

(88.) See, e.g., United States v. Kelly, 888 F.2d 732, 742-73 n.18 (11th Cir. 1989) (rejecting argument that fact finder must accept at face value a defense attorney's professional role as explanation for allegedly criminal conduct); Cintolo, 818 F.2d at 989-96 (lawyer's role as defense attorney does not insulate him from criminal consequences of his corruptly motivated actions).

(89.) Cintolo, 818 F.2d at 990 (client's willingness to follow attorney's advice and accept a jail term to protect a third party did not prevent attorney's prosecution under [sections] 1503).

(90.) Id. (holding that, otherwise, the lawyer would enjoy an "irrebuttable presumption which debars the jury . . . from drawing contradictory inferences as to the attorney's motives or intent"); see also United States v. Cioffi, 493 F.2d 1111, 1113-17 (2d Cir. 1974) (defendant-attorney Cioffi attempted to induce a grand jury witness to invoke his Fifth Amendment privilege rather than inculpate certain third parties).

(91.) See Cintolo, 818 F.2d at 991-93 (otherwise lawful means, such as encouraging a client to plead his Fifth Amendment right, can transgress [sections] 1503 if employed with corrupt intent to obstruct justice). The Cintolo court provides several useful examples to illustrate how otherwise commonplace and lawful acts may, if motivated by a corrupt intent, be actionable under [sections] 1503. For instance, it is presumptively lawful:

to offer an acquaintance a lift to the airport. Nevertheless, if a person

were to provide such transportation . . . with the corrupt purpose that the

prospective passenger be spirited away so as to thwart his scheduled

appearance before a grand jury, the impure motive alone would convert the

otherwise-lawful gesture into an outright obstruction of the grand jury's

mission . . . .

Id. at 993.

(92.) See supra part II.B.3.c. of this Article (explaining that actual obstruction is not an element of an endeavor offense).

(93.) See United States v. Neal, 951 F.2d 630, 632 (5th Cir 1992) (court rejected defendant's contention that a letter written, but not delivered, could not constitute a violation of [sections] 1503); United States v. Brimberry, 744 F.2d 580, 583 (7th Cir. 1984) (defendant's efforts to destroy all company records constituted continuing course of conduct intended to impede due administration of justice).

(94.) 876 F.2d 1297, 1299 (7th Cir. 1989).

(95.) Id. at 1314.

(96.) Osborn, 385 U.S. at 332-333.

(97.) 942 F.2d 1576 (11th Cir. 1991). In Banks, the defendant, following a grant of use immunity, was ordered to testify before a grand jury considering an indictment against a suspected leader of a drug-trafficking organization. Id. at 1577. He refused, and was later convicted of, among other things, obstruction of justice. Id. Banks asserted that to testify would endanger his life and the lives of members of his family. Id.

(98.) Id. at 1579. Upon retrial, defendant was once again convicted, and the conviction was again vacated. United States v. Banks, 988 F.2d 1106, 1112 (11th Cir. 1993).

(99.) Banks, 988 F.2d at 1112. In vacating the conviction, the court held that the instruction given to the jury regarding this defense was in error, and that the burden had been impermissibly shifted from the government to the defendant by the requirement that the jury find that the defendant had a substantiated and genuine motive for not testifying. Id. at 1110 n.5, 1111.

(100.) 18 U.S.C. [sections] 1512(h).

(101.) United States v. Allen, 24 F.3d 1180, 1183 (10th Cir. 1994) ("In 1988, 18 U.S.C. [sections] 1512(h) was amended to provide that section 1503 violations could be prosecuted in either the district of the affected proceeding or in the district where the obstruction actually took place.").

(102.) 18 U.S.C. [subsections] 1512-1515.

(103.) Section 1512 deals with use or threatened use of force against witnesses; [sections] 1513 covers retaliation against witnesses; [sections] 1514 provides for a civil action to restrain harassment of a victim or witness; [sections] 1515 is the definitional section for certain provisions of the witness tampering statutes.

(104.) Teresa Anne Pesce, Defining Witness Tampering Under 18 U.S.C. [sections] 1512, 86 Colum. L. Rev. 1417, 1417 (1986). While there was initially some debate as to whether the enactment of [sections] 1512 and the simultaneous deletion of witness tampering from [sections] 1503 excluded acts against witnesses from being prosecuted under [sections] 1503, the majority of circuits have held that such acts can still be prosecuted under [sections] 1503 as well as [sections] 1512. See United States v. Kenny, 973 F.2d 339, 342 (4th Cir. 1992) (despite 1988 amendment the "fact that [sections] 1512 more specifically addresses improper conduct involving a witness does not preclude application of [sections] 1503"); United States v. Moody, 977 F.2d 1420, 1424 (10th Cir. 1992) ("join[ing] the majority of circuits in holding that [sections] 1512 is not the exclusive vehicle for prosecution for witness tampering"); United States v. Brown, 948 F.2d 1076, 1080 (8th Cir. 1991) (upholding conviction under [sections] 1503 for asking witness to testify falsely without discussion of the 1988 amendment); United States v. Williams, 874 F.2d 968, 977 n.25 (5th Cir. 1989) (Congress did not intend that a defendant who advises a witness to testify falsely be exempt from prosecution under [sections] 1503); United States v. Cintolo, 818 F.2d 980, 990 (1st Cir. 1987) (actions of attorney who interfered with a grand jury proceeding properly prosecuted under [sections] 1503); United States v. Rovetuso, 768 F.2d 809, 823 (7th Cir. 1985) (solicitation of another person to use force constitutes an offense under [sections] 1503); United States v. Lester, 749 F.2d 1288, 1292-93 (9th Cir. 1984) ([sections] 1503 Omnibus Clause embraces conduct of hiding a witness in order to prevent his appearance at trial, a more imaginative form of witness tampering). But see United States v. Masterpol, 940 F.2d 760, 762 (2d Cir. 1991) (construing amendment to [sections] 1512 as evidence of Congress's intent that witnesses were removed entirely from the protection of [sections] 1503) (following United States v. Hernandez, 730 F.2d 895, 898 (2nd Cir. 1984).

(105.) See infra part IV.B of this article (discussing the Federal Sentencing Guidelines that are implicated by violations of [subsections] 1512 and 1513).

(106.) 18 U.S.C. [sections] 1512.

(107.) See United States v. Romero, 54 F.3d 56, 62 (2d Cir. 1995) (potential witnesses are within the scope of [sections] 1512), cert. denied, 116 S. Ct. 1449 (1996); United States v. Dunning, 929 F.2d 579, 581 (10th Cir. 1991) (defendant generally threatened potential witnesses in his mother's trial); DiSalvo, 631 F. Supp. at 1402 (finding that a potential witness meets the standards of [sections] 1503 and [sections] 1512, and is therefore covered).

(108.) United States v. Schmidt, 935 F.2d 1440, 1452 (4th Cir. 1991) (attempting to mislead grand jury witnesses in an effort to discourage them from testifying violates [sections] 1512); United States v. Balzano, 916 F.2d 1273, 1291 (7th Cir. 1990) (intimidating a grand jury witness falls sufficiently within [sections] 1512(b)); United States v. Capo, 791 F.2d 1054, 1069-70 (2d Cir. 1986) (affirming defendant's conviction under [sections] 1512 for attempting to intimidate a grand jury witness).

(109.) United States v. Risken, 788 F.2d 1361, 1369 (8th Cir. 1986) (witness retained protected status for the purposes of [sections] 1512 despite previous excusal by the court; statute's protection of a person who has been called to testify extends as long as a possibility exists that the person would be called in the future); United States v. Wilson, 565 F. Supp. 1416, 1433 (S.D.N.Y. 1983) (witness retained witness status throughout duration of trial).

(110.) Congress amended [sections] 1512(b) to prohibit "corruptly persuad[ing]" a witness. 18 U.S.C. [sections] 1512.

(111.) If Congress intended [sections] 1512 to govern all witness tampering situations exclusively, then non-coercive conduct was not prohibited between 1982 and 1988.

(112.) 18 U.S.C. [sections] 1513.

(113.) See United States v. Johnson, 903 F2d 1084, 1085 (7th Cir. 1990) (prosecution under both [sections] 1512 and [sections] 1513); United States v. Maggitt, 784 F.2d 590, 591 (5th Cir. 1986) (same); United States v. Dawlett, 787 F.2d 771, 772 (1st Cir. 1986) (same); Wilson, 565 F. Supp. at 1421 (same). But see United States v. Ferrugia, 604 F. Supp. 668, 670 (E.D.N.Y. 1985) (involving a conviction under [sections] 1513 without an accompanying count under [sections] 1512).

(114.) Wilson, 565 F. Supp. at 1433.

(115.) 18 U.S.C. [sections] 1512(b).

(116.) Id. Similarly, [sections] 1513 requires that the defendant "knowingly" retaliate against any person having given testimony or other evidence in an official proceeding. 18 U.S.C. [sections] 1513(b).

(117.) See Pesce, supra note 104, at 1421.

(118.) See United States v. Wilson, 565 F. Supp. 1416, 1431 (S.D.N.Y. 1983) ([subsections] 1512 and 1513 do not facially outlaw the making of innocent (119.) 18 U.S.C. [sections] 1512(f). See also United States v. Gonzalez, 922 F.2d 1044, 1054 (2d Cir. 1991)(prosecutor not required to prove defendant's state of mind with respect to the elements of the federal nature of the proceeding); United States v. Davis, 932 F.2d 752, 761 (9th Cir. 1991) ("United States was not required to prove that defendant knew he was tampering with a federal proceeding"); United States v. Scaife, 749 F.2d 338, 348 (6th Cir. 1984) (same).

(120.) 18 U.S.C. [sections] 1512(b).

(121.) The legislative history reveals that Congress deleted a proposed omnibus provision, analogous to [sections] 1503, from the original bill that led to the enactment of the Act. S. Rep. No. 532, 97th Cong., 2d Sess. 17-18, reprinted in 1982 U.S.C.C.A.N. 2515, 2524. For examples of narrow interpretations of [sections] 1512 by federal courts, see United States v. Aguilar, 21 F.3d 1475, 1485 (9th Cir. 1994) (making false statements to witness does not constitute witness tampering through corrupt persuasion under [sections] 1512); United States v. Kulczyk, 931 F.2d 542, 546 n.7 (9th Cir. 1991) (under pre-1988 version of statute, non-coercive, non-deceptive conduct not covered by [sections] 1512); United States v. Fagan, 821 F.2d 1002, 1014 n.8 (5th Cir. 1987) (bribery alone does not constitute witness tampering under [sections] 1512); United States v. Dawlett, 787 F.2d 771, 775 (1st Cir. 1986) ([sections] 1512 reaches only specifically enumerated types of witness tampering); United States v. King, 762 F.2d 232, 238 (2d Cir. 1985) (defendant who attempts to persuade witness to lie to government without misleading the witness has not violated [sections] 1512).

(122.) Dawlett, 787 F.2d at 773-74.

(123.) Id. at 774.

(124.) Section 1512(a) provides in pertinent part:

(a)(1) Whoever 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 . . .

shall be punished as provided in paragraph (2).

Id. See also United States v. Edwards, 36 F.3d 639, 645 (7th Cir.1994) ([sections] 1512(a)(1)(C) makes it a federal offense to kill or attempt to kill someone with the purpose of preventing communication to a law enforcement officer).

(125.) 18 U.S.C. [sections] 1512(b). See also United States v. Elwell, 984 F.2d 1289, 1294 (1st Cir. 1993) (evidence existed sufficient to support witness tampering conviction despite defendant's assertions that he was not threatening witness but merely relaying messages to him); United States v. Kulczyk, 931 F.2d 542, 548 (9th Cir. 1991) (threat to have witness killed if he did not lie supported witness tampering conviction); United States v. Davis, 926 F.2d 969, 971 (10th Cir. 1991) (evidence that defendant threatened acquaintances when they refused to help fabricate exculpatory evidence and began cooperating with FBI supported defendant's conviction for intimidating witness under [sections] 1512(b)(3)); United States v. Fagan, 821 F.2d 1002, 1014 (5th Cir. 1987) (jury could reasonably infer that defendant induced and procured another individual's threats of violence against witness to prevent witness from testifying).

(126.) See supra part II.B.3.c. (discussing an attempt at obstruction rather than success as the necessary element for prosecution).

(127.) See United States v. Dunning, 929 F.2d 579, 581 (10th Cir. 1991) ("a threat does not necessarily have to succeed and cause the person threatened to refrain from giving information to law enforcement officers"); United States v. Balzano, 916 F.2d 1273, 1291 (7th Cir. 1990) (not necessary to show actual obstruction since statutory focus is on endeavor); United States v. Johnson, 903 F.2d 1084, 1088 n.5 (7th Cir. 1990) (no requirement that witness in fact be intimidated into not testifying); United States v. Wilson, 796 F.2d 55, 57 (4th Cir. 1986) (success of attempt to dissuade witness from testifying is irrelevant); United States v. Maggitt, 784 F.2d 590, 594 (5th Cir. 1986) (effect of defendant's threat on witness, while not conclusive in determining defendant's state of mind, can be indicative).

(128.) See United States v. Millan, 4 F.3d 1038, 1048 (2d Cir. 1993), cert. denied, 114 S. Ct. 1375 (1994) (prior rulings contravene notion that only threats to particular, specified witnesses provide a basis for detention).

(129.) See United States v. White, 838 F. Supp. 618, 620 (D.D.C. 1993) (defendant responsible for the absence of a witness from trial has waived his confrontation rights and hearsay objections to that witness's statements); see also United States v. Aguiar, 975 F.2d 45, 47 (2d Cir. 1992) ("A defendant who procures a witness's absence waives the right of confrontation for all purposes with regard to that witness, not just to the admission of sworn hearsay statements."); United States v. Thevis, 665 F.2d 616, 630 (5th Cir. 1982) ("waiver of defendant's right to confrontation in these circumstances also constituted a waiver of any hearsay objection"); cf. United States v. Carlson, 547 F.2d 1346, 1360 n.14 (8th Cir. 1976) (not all extrajudicial statements of a threatened witness, however unbelievable or unreliable, are automatically inadmissible simply because witness has been threatened by defendant).

(130.) 18 U.S.C. [sections] 1512(b). Section 1515 defines "misleading conduct" as follows:

(A) knowingly making a false statement;

(B) intentionally omitting information from a statement . . . or

intentionally concealing a material fact . . . ;

(C) with intent to mislead, knowingly submitting or inviting reliance

on a writing or recording that is false . . . ;

(D) with intent to mislead, knowingly submitting or inviting reliance on

a[n] . . . object that is misleading in a material respect; or

(E) knowingly using a trick, scheme, or device with intent to mislead.

18 U.S.C. [sections] 1515(a)(3).

(131.) 18 U.S.C. [sections] 1515(a)(6).

(132.) See United States v. Kulczyk, 931 F.2d 542, 547 (9th Cir. 1991) (no attempt to mislead witnesses where witnesses knew defendant was asking them to lie); United States v. King, 762 F.2d 232, 237 (2d Cir. 1985) (defendant who attempts to persuade witness to lie but not to mislead government has not violated [sections] 1512); see also United States v. Schmidt, 935 F.2d 1440, 1452 (4th Cir. 1991) (rejecting defendant's argument that his conviction should be reversed because his actions, though intended to mislead the government, failed to mislead the witness, because evidence was otherwise); United States v. Rodolitz, 786 F.2d 77, 82 (2d Cir. 1986) (making false statements to witness in attempt to get witness to lie to government is "misleading conduct"). But see King, 762 F.2d at 238 (a strict application of [sections] 1512 will allow "nonmisleading, nonthreatening, nonintimidating attempt to have a person give false information to the government, to go unpunished").

(133.) United States v. Maggitt, 784 F.2d 590, 593 (5th Cir. 1986); United States v. Jackson, 513 F.2d 456, 461 (D.C. Cir. 1975).

(134.) See United States v. Harris, 558 F.2d 366, 369 (7th Cir. 1977) ("endeavor need not be successful"); Jackson, 513 F.2d at 460 (in prosecution under [sections] 1503 for intimidating a witness, threats had reasonable tendency to intimidate regardless of whether they in fact did so).

(135.) Maggitt, 784 F.2d at 593.

(136.) 18 U.S.C. [sections] 1513.

(137.) Maggitt, 784 F.2d at 593-94; see also United States v. Velasquez, 772 F.2d 1348, 1357 (7th Cir. 1985) (whether defendant intended to carry out threat was immaterial).

(138.) "Official proceeding" is defined in [sections] 1515(a)(1) as follows:

(A) a proceeding before a judge or court of the United States, a United

States magistrate, a bankruptcy judge, a judge of the United States Tax

Court, a special trial judge of the Tax Court, a judge of the United States

Claims Court, or a Federal grand jury;

(B) a proceeding before the Congress; or

(C) a proceeding before a Federal Government agency which is authorized by

law.

18 U.S.C. [sections] 1515(a)(1).

(139.) 18 U.S.C. [sections] 1512(e)(1). See supra part II.B.1. of this article (regarding "Pending Proceedings" requirement for [sections] 1503). See also United States v. Frankhauser, 80 F.3d 641, 652 (1st Cir. 1996) (holding that convictions under [sections] 1512(b)(2) must be evaluated on their own facts as defendant need not know official proceeding had commenced, nor is conviction always allowed where circumstantial evidence exists that defendant may have foreseen possibility of proceedings); United States v. Allen, 729 F. Supp. 120, 122 (D.D.C. 1989) (because defendant allegedly attempted to prevent testimony before a grand jury which was related to a different federal charge, he was considered to have threatened a witness in an "official proceeding").

(140.) See United States v. Kelley, 36 F.3d 1118, 1128 (D.C. Cir. 1994) (investigation by the U.S. Agency for International Development, Office of Inspector General constitutes "official proceeding" within meaning of [sections] 1512); United States v. Gonzalez, 922 F.2d 1044, 1055-56 (2d Cir. 1991) (investigation by the DEA was an "official proceeding" for purposes of [sections] 1512); United States v. Clift, 834 F.2d 414, 416 (4th Cir. 1987) (military hearing to determine if charges against accused warranted convening of general court martial is an "official proceeding" before a federal government agency under [sections] 1515). Contra United States v. Ford, 641 F. Supp. 704, 705 (D.S.C. 1986) (military court martial is not an "official proceeding" since it is not an Article III court of the United States), aff'd 816 F.2d 674 (4th 1987). While federal agency investigations may constitute "official proceedings" under [sections] 1512(e), obstructions of criminal investigations are addressed directly by 18 U.S.C. [sections] 1510.

(141.) Unites States v. Morrison, Nos. 92-3232, 94-3146, 95-3041, 1996 WL600352, at *11 (D.C. Cir. Oct. 22, 1996).

(142.) Puckett v. Tennessee Eastman Co., 889 F.2d 1481, 1489-90 (6th Cir. 1989) (intimidation of witnesses prior to testifying before Tennessee Human Rights Commission was not interference with an "official proceeding"); McKinney v. Illinois, 720 F. Supp. 706, 708 (N.D. Ill. 1989) (proceeding before the State Department of Human Rights was not "official proceeding").

(143.) 18 U.S.C. [sections] 1512(d).

(144.) United States v. Johnson, 968 F.2d 208, 213 (2d Cir. 1992).

(145.) Id.

(146.) Id. (quoting S. Rep. No. 532, 97th Cong., 2d Sess. 9, reprinted in 1982 U.S.C.C.A.N. 2515, 2525).

(147.) See United States v. Allen, 24, F.3d 1180, 1183 (10th Cir. 1994) (affirming lower court finding that "corruptly" as applied in [sections] 1512 is not overly vague based on defendant's waiver of rights); Conneaut, 852 F. Supp. at 125-26 ("There is nothing vague in [[sections] 1512] when it is reasonably construed.").

(148) United States v. Grisanti, 4 F.3d 173, 175 (2d Cir. 1993) (Double Jeopardy Clause does not bar retrial on witness tampering counts following jury verdict of guilty on two criminal contempt counts); United States v. Galvan, 949 F.2d 777, 782 (5th Cir. 1991) (upholding conviction under both [sections] 1512(a)(1)(A) and [sections] 1512(a)(1)(C) for a single attempted murder since the former required proof that defendant intended to prevent victim's attendance or testimony in an official proceeding and the latter required proof of a different fact--that defendant intended to prevent victim from communicating information relating to commission of a federal offense); United States v. Risken, 899 F.2d 728, 730 (8th Cir. 1990) (rejecting defendant's argument that his convictions under both [subsections] 1503 and 1512 violated double jeopardy clause since proof of [sections] 1503 violation required proof of knowledge of pending judicial proceeding, which is not an element of [sections] 1512 violation); United States v. Maggitt, 784 F.2d 590, 599 (5th Cir. 1986) (rejecting multiplicity challenge to indictment charging defendant with witness tampering under [sections] 1512 and retaliation against a witness under [sections] 1513).

(149.) See Wilson, 565 F. Supp. at 1429-30 (rejecting defendant's argument that [subsections] 1512 and 1513 infringed his right to free expression); see also United States v. Thompson, 76 F.3d 442, 452 (2d Cir. 1996) (statute did not violate defendant's First Amendment rights because statute prohibits only corrupt persuasion efforts which by definition are not constitutionally protected).

Section 1513 is not inconsistent with the First Amendment since threat to do bodily harm to or destroy property of informant is statement of intention rather than an idea or opinion and is, therefore, not part of the marketplace of ideas. It is immaterial whether defendant intended to carry out threat since a bluff can succeed in causing the intimidation which statute seeks to prevent. United States v. Velasquez, 772 F.2d 1348, 1356-58 (7th Cir. 1985).

(150.) See United States v. Aguiar, 975 F.2d 45, 47 (2d Cir. 1992) (rejecting constitutional challenge to affirmative defense provision); United States v. Johnson, 968 F.2d 208, 214 (2d Cir. 1992) (despite fact that the elements of the crime and the affirmative defense overlap, statute does not violate the Due Process Clause because it "did not shift to [the defendant] the burden of proof on any element of the crime of witness tampering, nor did it allow the jury to presume elements of the government's case"); United States v. Clemons, 843 F.2d 741, 752-55 (3d Cir. 1988) (acknowledging doubts concerning constitutionality of the affirmative defense provision but declining to decide question because any error in court's jury instruction requiring defendant to prove the affirmative defense would have been harmless beyond a reasonable doubt since government's evidence of defendant's intent to intimidate was overwhelming).

(151.) Kalevas, 622 F. Supp. at 1526-27 (S.D.N.Y. 1985) (statute does not impermissibly shift burden of proof since government, to prevail, must prove the essential ingredients of the crime charged). But see William H. Jeffress, The New Federal Witness Tampering Statute, 22 Am. Crim. L. Rev. 1, 16-20 (1984) (arguing that, absent narrowing judicial interpretation, the shifting of the burden of persuasion to the defendant on certain issues should not survive a challenge under the Due Process Clause).

(152.) 18 U.S.C. [sections] 1512(h). See United States v. Cofield, 11 F.3d 413, 419 (4th Cir. 1993) (holding that venue is proper, but possibly not exclusive, in the district of the underlying judicial proceeding), cert. denied, 510 U.S. 1140 (1994). Note, however, that venue protection provided by Article III and the Sixth Amendment may be waived by a guilty plea. United States v. Brown, 583 F.2d 915, 918 (7th Cir. 1978) (per curiam).

(153.) United States v. Gonzalez, 922 F.2d 1044, 1055 (2d Cir. 1991) ("[s]imply because Congress felt compelled to clarify the proper venue for prosecution under [the obstruction of justice] statutes did not thereby elevate the standard of proof needed to establish that prosecution was laid in the proper district").

(154.) 18 U.S.C. [sections] 1503(b).

(155.) See 18 U.S.C. [sections] 1503(b)(1) (explaining that when the offense is a killing, the punishments provided in [subsections] 1111 and 1112 are to apply). Section 1111(b) provides in pertinent part:

(b) . . . Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life;

Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or life.

18 U.S.C. [sections] 1111(b).

Section 1112(b) provides in pertinent part:

(b) . . . Whoever is guilty of voluntary manslaughter shall be fined under this title or imprisoned not more than ten years or both;

Whoever is guilty of involuntary manslaughter, shall be fined under this title or imprisoned not more than six years or both.

18 U.S.C. [sections] 1112(b).

(156.) 18 U.S.C. [sections] 1503(b)(2).

(157.) 18 U.S.C. [sections] 1503(b)(3).

(158.) U.S. Sentencing Guidelines Manual (hereinafter U.S.S.G.) App. A (1995).

(159.) U.S.S.G. [sections] 2J1.2(A)

(160.) "Property damage" is not meant to apply to the destruction of property that contains incriminating evidence. It applies to cases where property damage is threatened or caused as a means of intimidation or retaliation. U.S.S.G. [sections] 2J1.2 commentary, application n.5.

(161.) U.S.S.G. [sections] 2J1.2(b)(1).

(162.) "Substantial interference" is defined in the Application notes that follow [sections] 2J1.2 as including "a premature or improper termination of a felony investigation; an indictment, verdict, or any judicial determination based upon perjury, false testimony, or other false evidence; or the unnecessary expenditure of substantial governmental or court resources." U.S.S.G. [sections] 2J1.2 cmt. (n. 1). See United States v. Jackson, 67 F.3d 1359, 1369-70 (8th Cir. 1995) (applying the increase of three levels because the government had to make significant efforts to determine how the grand jury materials had been linked), cert. denied, 116 S. Ct. 1684 (1996).

(163.) U.S.S.G. [sections] 2J1.2(b)(2).

(164.) United States v. Haggard, 41 F.3d 1320, 1327 (9th Cir. 1994); see also United States v. Herrera, 70 F.3d 444 (7th Cir. 1995) (upholding a district court's decision to increase the offense level due to the brutality of the came), cert. denied, 116 S. Ct. 1695 (1996).

(165.) U.S.S.G. [sections] 2J1.2(c).

(166.) U.S.S.G. [sections] 2X3.1(a); see also U.S.S.G. [sections] 2X3.1 cmt., application n. 1 (stating that "underlying offense" is the offense to which the defendant is convicted of being an accessory).

(167.) U.S.S.G. [sections] 2X3.1 (a).

(168.) Id.

(169.) See United States v. Pierson, 946 F.2d 1044, 1046-49 (4th Cir. 1991) (finding that a person could not be prosecuted as an accessory after the fact for the crime for which he was indicted); United States v. Huppert, 917 F.2d 507, 509-11 (11th Cir. 1990) (concluding that [sections] 2X3.1 does not apply to defendants who obstruct investigations into their own crimes).

(170.) U.S.S.G. [sections] 2J1.2 cmt., background.

(171.) The Supreme Court has held that amended commentary to the Sentencing Guidelines is binding on federal courts' interpretations, regardless of prior judicial constructions provided that the interpretations are consistent with the Constitution and federal statutes. Stinson v. United States, 508 U.S. 36, 38 (1993). See also United States v. McQueen, 86 F.3d 180, 183-84 (11th Cir.1996) (rejecting defendant's contention that due process prohibited retroactive court of appeals applications of criminal statute because Supreme Court's ruling in Stinson did not overrule prior Supreme Court precedent).

(172.) United States v. Washington, 66 F.3d 1101, 1104 (9th Cir. 1995). See also United States v. Bertoli, 40 F.3d 1384, 1406-7 (3d Cir. 1994) (concluding that the amended commentary to [sections] 2J1.2 is a substantive change and should not be applied to any pre-enactment conduct), cert. denied, 116 S. Ct. 1425 (1996).

(173.) See United States v. Glover, 52 F.3d 283, 284-86 (10th Cir. 1995) (applying the cross reference to conduct that probably occurred before the amendment); United States v. Gay, 44 F.3d 93, 94-95 (2d Cir. 1994) (applying the cross reference to pre-enactment conduct without discussing the amendment).

(174.) See 18 U.S.C. [subsections] 1512(a)(2)(A), 1513(a)(2)(A) (providing that in the case of a killing the penalties of [subsections] 1111 and 1112 shall apply).

(175.) 18 U.S.C. [subsections] 1512(a)(2)(B), 1513(a)(2)(B).

(176.) In 1994, Congress removed the previous limit of a $250,000 fine. 18 U.S.C. [sections] 1513(b).

(177.) 18 U.S.C. [sections] 1513(b).

(178.) As with [sections] 1513, Congress removed the previous limit of a $250,000 fine in 1994. 18 U.S.C. [sections] 1512(b).

(179.) Id.

(180.) For these lesser offenses, Congress removed the previous limit of a $25,000 fine in 1994. Id.

(181.) 18 U.S.C. [sections] 1512(c).

(182.) U.S.S.G. App. A.

(183.) Id.

(184.) U.S.S.G. [sections] 2A1.1(a).

(185.) U.S.S.G. [sections] 2A1.2(a).

(186.) U.S.S.G. [sections] 2A1.3(a).

(187.) U.S.S.G. [sections] 2A2.1(a)(1)-(2). Section 2A2.1 also provides for increases in the offense level that depend on the degree of the victim's injury. If the victim sustained permanent or life-threatening injury, the increase is by four, but if the victim sustained only serious bodily injury, the increase is by two. U.S.S.G. [sections] 2A2.1(b)(1). Furthermore, if the offense involved the offer or receipt of anything of value for the attempt at murder, the offense level is to be increased by four. U.S.S.G. [sections] 2A2.1(b)(2).

(188.) U.S.S.G. App. A. See supra Part IV.A. (discussing the application of [sections] 2J1.2). Section 2A2.2 has a base offense level 15. [sections] 2A2.2(a). When the assault involves more than minimal planning, the offense level is increased by two; if a weapon was used the base offense level is increased by either three, four, or five depending on how the weapon was used; and if the victim was injured, the level can be increased by two, three, four, five, or six depending on the seriousness of the injury. [sections] 2A2.2(b).

(189.) U.S.S.G. App. A. See supra Part IV.A (discussing the application of [sections] 2J1.2).

(190.) U.S.S.G. App. A. See supra Parts IV.A. (discussing the application of [sections] 2J1.2).

(191.) U.S.S.G. [sections] 3C1.1.

(192.) U.S.S.G. [sections] 2J1.2 cmt., application n. 2 (1995). See United States v. Fredette, 15 F.3d 272, 275 (2d Cir.) (determining that where a defendant acted to obstruct the administration of justice in a trial for an obstruction related crime, there was no risk of double counting by applying the two level increase of [sections] 3C1.1 to a [sections] 1513 conviction), cert. denied, 114 S. Ct. 2119 (1994).

(193.) See, e.g., United States v. Jackson, 974 F.2d 104, 106 (9th Cir. 1992) (no violation of First Amendment rights when defendant wrote words "snitch" and "rat" across top of witnesses' cooperation agreement); United States v. Shoulberg, 895 F.2d 882, 886 (2d Cir. 1990) (right to make threats against witness is not guaranteed by First Amendment).
COPYRIGHT 1997 Georgetown University Law Center
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1997 Gale, Cengage Learning. All rights reserved.

 Reader Opinion

Title:

Comment:



 

Article Details
Printer friendly Cite/link Email Feedback
Title Annotation:Twelfth Survey of White Collar Crime
Author:Dixon, Alicia M.; Kwak, Robert; Morris, Catherine
Publication:American Criminal Law Review
Date:Jan 1, 1997
Words:15682
Previous Article:Money laundering.
Next Article:Organizational sentencing.
Topics:

Terms of use | Copyright © 2014 Farlex, Inc. | Feedback | For webmasters