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What brought down President Richard Nixon was not any involvement in planning the burglary of the Democrat National Committee’s Watergate offices but his efforts, while president, to obstruct the investigation of that crime. In this instance, as in many others, Nixon’s effort to cover up the burglary was not merely a separate criminal offense but an offense arguably even more serious than the crime he sought to cover up.
Obstruction of justice is a broad concept that extends to any effort to prevent the execution of lawful process or the administration of justice in either a criminal or civil matter. Obstructive conduct may include the destruction of evidence, the intimidation of potential witnesses or retaliation against actual witnesses, the preparation of false testimony or other evidence, or the interference with jurors or other court personnel. The purpose of criminal obstruction statutes—which every jurisdiction has, in one form or another—is thus to help protect the integrity of legal proceedings and, at the same time, protect those individuals who participate in such proceedings. Indeed, one of the earliest congressional enactments was a 1790 criminal statute that, among other things, established a number of obstruction offenses.
In keeping with the seriousness of the threat that obstructive conduct poses, and the myriad forms that obstruction takes, a broad array of federal criminal provisions (many overlapping) now target such activity. The principal statutes in this area are contained in chapter 73 of United States Code, Title 18. They are: section 1501 (misdemeanor to obstruct a federal process or writ server); section 1502 (misdemeanor to obstruct or resist an extradition agent); section 1503 (felony provision that targets efforts to influence or injure a court officer or juror, as well as other obstructionary efforts); section 1504 (misdemeanor to influence a juror by writing); section 1505 (felony to obstruct proceedings before departments, agencies, committees); section 1506 (felony to steal or alter a court record or provide a phony bail surety); section 1507 (misdemeanor to picket or parade with the intent of impeding or obstructing the administration of justice); section 1508 (misdemeanor to record or observe proceedings of grand or petit juries while deliberating or voting); section 1509 (misdemeanor to obstruct court orders); section 1510 (felony to obstruct criminal investigations); section 1511 (felony to obstruct state or local law enforcement with the intent to facilitate an illegal gambling business); section 1512 (felony to tamper with a witness, victim, or informant); section 1513 (felony to retaliate against a witness, victim, or informant); section 1516 (felony to obstruct a federal audit); section 1517 (felony to obstruct the examination of a financial institution); and section 1518 (felony to obstruct a criminal investigation of health care offenses).
General Obstruction Provision
The most frequently used of these federal provisions is section 1503, often called the ‘‘general’’ obstruction statute, which has its roots in a section of the act of 2 March 1831 (‘‘An Act declaratory of the law concerning contempts of court’’). Until recently, the first part of section 1503 targeted obstructive efforts aimed at witnesses, parties, jurors, or court officers and officials. The Victim and Witness Protection Act of 1982, however, removed the references to witnesses and parties; created new provisions to protect such individuals, and left the initial parts of section 1503 to focus only on jurors and court officers and officials. The 1982 act, however, did not eliminate section 1503’s broad ‘‘omnibus clause,’’ which focuses on no particular victim and reaches ‘‘[w]hoever . . . endeavors to influence, obstruct, or impede, the due administration of justice.’’ The ‘‘due administration of justice’’ is defined to include grand jury proceedings, criminal prosecutions, and civil proceedings.
The omnibus clause’s use of ‘‘endeavors’’ allows prosecutors to use the statute against obstructive effort that merely had a reasonable tendency to impede a legal proceeding. Whether or not the effort was successful does not matter. As the Supreme Court noted in United States v. Aguilar (1995), however, the effort must have some clear relationship ‘‘in time, causation or logic’’ to a legal proceeding. Thus, in Aguilar, the Court rejected the government’s effort to use Section 1503 against a federal district judge alleged to have lied to agents from the Federal Bureau of Investigation investigating his ties to a labor racketeer. There was no proof, the Court found, that the agents had acted as an arm of the grand jury, or that the judge had known that his false statement would later be provided to a grand jury. Section 1503, the Court held, does not reach actions intended ‘‘to influence some ancillary proceeding, such as an investigation independent of the Court’s or grand jury’s authority.’’
Cases brought under section 1503’s omnibus clause tend to fall into two general categories: those involving the concealment, alteration, or destruction of subpoenaed documents, and those involving the giving or encouraging of false testimony, either in the context of a grand jury investigation or in that of a criminal trial. Technically, the giving of false testimony, before a grand jury or at trial, will not support a prosecution under section 1503, in the absence of a specific intent to obstruct. As a practical matter, however, this additional element can usually be inferred. Thus there will be many cases in which perjury and obstruction charges will both apply and, because of their different elements, can both be brought. Other applications of section 1503 in the 1990s include its use against a grand juror who disclosed grand jury information to the target of the grand jury’s investigation.
While federal prosecutors have occasionally used section 1503 to prosecute obstructive efforts in civil litigation, those cases are rather rare, even though practitioners often decry the frequency of such misconduct. There are at least two reasons for this. Not only is the perceived public interest in criminal litigation usually greater, but it is the prosecutors themselves who are stymied by the obstruction of criminal cases. Moreover, efforts to derail criminal proceedings are all the more dangerous and worthy of prosecution because, under double jeopardy doctrine, any acquittal obtained, however improperly, cannot be overturned on appeal.
Unless the obstruction charged under section 1503’s omnibus clause is by ‘‘threats or force, or by any threatening letter or communication,’’ the statute requires proof that the alleged obstructive endeavors have involved a ‘‘corrupt’’ purpose. The precise meaning of this term is somewhat unclear. Courts have held that the element is satisfied not only when a defendant has acted with the purpose of obstructing justice, but also when the obstruction of justice is a reasonably foreseeable consequence of his actions, and not his main purpose. Moreover, they have held, the corrupt intent may be inferred from the circumstances. Despite its breadth, however, the statute has withstood numerous challenges alleging unconstitutional vagueness, with courts often noting that the corrupt purpose requirement is actually what saves the omnibus clause from unconstitutionality in this regard.
The centrality of section 1503’s scienter element (the element focusing on the offender’s guilty state of mind) can raise some particularly difficult issues for lawyers, especially criminal defense lawyers. Defense attorneys’ representational obligations have never immunized them from obstruction charges. Indeed, the cases are clear that the giving of otherwise lawful advice, like encouraging a client to assert his Fifth Amendment privilege, or the use of legal processes, like filing a complaint, can violate section 1503 if done with a corrupt intent to obstruct justice. The difference between zealous representation and obstruction can thus lie solely in intent. Although prosecutors have argued that this is a bright line analytically, defense counsel understandably have not always felt secure in the distinction. Ironically, the chief reason why the law is not more clearly developed on the difference between zealous advocacy and illegal obstruction is that prosecutorial self-restraint in this area has limited the number of cases.
The penalty for a violation of section 1503 is imprisonment for up to ten years, but the sentence may be far greater under certain circumstances. If the offense occurred in connection with a criminal case and involved physical force or the threat of it, the maximum term will be the maximum term that could have been imposed for any offense charged in the underlying case, or ten years, whichever is greater. If the section 1503 offense involved a killing, the punishment can be life imprisonment or death.
Witness Tampering and Retaliation
In contrast with the broad language of section 1503, sections 1512 and 1513 were designed to directly address efforts to tamper with or obstruct potential or actual witnesses or informants or to retaliate against witnesses, victims, or parties for their participation in federal investigations or legal proceedings. The range of conduct addressed by section 1512 is broad and includes intimidation, physical force, threats, misleading conduct, and harassment. Under prevailing case law, a defendant need not have realized that the witness he targeted was to be a federal witness.
These provisions of the Victim and Witness Protection Act filled some gaps in section 1503’s coverage. They can, for instance, be used against an effort to tamper with a potential witness at a time when no official proceeding was pending. They are limited, however, by their concern with the welfare of witnesses, not the integrity of proceedings per se. The defendant who persuades a witness to mislead a grand jury, for example, has not violated section 1512, unless his conduct involves some effort to mislead the witness as well. In cases where the 1982 provisions and section 1503 both appear to apply, the result is somewhat unclear: Courts have disagreed on whether section 1503’s omnibus clause can still be used to prosecute witness tampering and retaliation, now that sections 1512 and 1513 more specifically address such conduct.
In prosecutions under section 1512 for witness tampering, the government need not show that the witness was actually intimidated. It is enough that the defendant’s threats had a tendency to intimidate. And while section 1512(b) requires a showing of specific intent to influence a witness, the prosecution only has to show that the defendant was aware of the natural and probable consequences of his conduct toward the witness. As with section 1503, the penalties for violations of sections 1512 and 1513 are keyed to the harm a defendant has inflicted and the nature of the proceedings.
Obstruction of Agency Proceedings and Congressional Inquiries
Addressing the gap left by section 1503’s limitation to legal proceedings, section 1505 targets ‘‘corrupt’’ efforts to obstruct, impede, or influence the ‘‘due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power inquiry’’ by a congressional body. Here, again, the definition of ‘‘corrupt’’ is critical, but in this instance, the term has been found unconstitutionally vague, at least when applied to lying to Congress. That was the ruling in 1991, by the Court of Appeals for the D.C. Circuit in United States v. Poindexter (an appeal arising out of the Iran-Contra affair). There, the court held section 1505’s reference to ‘‘corrupt’’ to be ‘‘too vague to provide constitutionally adequate notice that it prohibits lying to Congress.’’ Congress responded to Poindexter in 1996 by adding section 1515(b), which provides that, as used in section 1505, ‘‘‘corruptly’ means acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.’’ Extending to any ‘‘improper purpose,’’ this definition remains quite broad, but has so far survived constitutional challenge. (Efforts to use the reasoning in Poindexter to challenge section 1503’s omnibus clause have so far failed.)
Other Obstruction Provisions
Certain conduct that might be prosecuted under chapter 73 of title 18, as well as certain obstructive conduct that for technical reasons cannot be reached under those provisions, can be charged under various other statutes scattered throughout the criminal code and elsewhere. Thus, for example, even as the Supreme Court rejected the use of section 1503 against the federal district judge in Aguilar, it upheld his conviction under title 18, section 2232(c), which allows the prosecution of someone who reveals information about a federal electronic surveillance authorization or application ‘‘in order to obstruct, impede, or prevent such interception.’’ Title 26, section 7212 reaches efforts to obstruct and impede the due administration of the Internal Revenue laws. The federal bribery, perjury, and contempt statutes may also be used against certain obstructive conduct, as can the criminal civil rights statutes, which have been invoked to prosecute efforts to deprive someone of his right to be a federal witness.
Even where a defendant has not been charged with any sort of an obstruction offense, he can, if convicted, still have his sentence increased under section 3C1.1 of the Federal Sentencing Guidelines for ‘‘obstructing or impeding the administration of justice during the investigation, prosecution, or sentencing’’ of his offense of conviction. This provision is frequently used by courts to enhance the sentence of defendants found to have perjured themselves while testifying at trial.
Federal evidentiary doctrine has also been designed to deter interested parties from using force, fraud, or intimidation to keep witnesses from testifying. If a defendant, in any sort of prosecution, is found by the trial judge (using a preponderance of the evidence standard) to be responsible for a witness’s absence, the defendant will be deemed to have waived his constitutional right to confrontation and his hearsay objections with respect to the missing witness. This means, for example, that statements that the witness made to the government before he disappeared can now be used against the defendant.
- DE MARCO, JOSEPH ‘‘A Funny Thing Happened on the Way to Courthouse: Mens Rea, Document Destruction, and the Federal Obstruction of Justice Statute.’’ New York University Law Review 67 (1992): 570–611.
- GREEN, BRUCE ‘‘The Criminal Regulation of Lawyers.’’ Fordham Law Review 67 (1998): 327– 392.
- LOU, GRACE, and RO, NANCY ‘‘Obstruction of Justice, in Fourteenth Survey of White Collar Crime.’’ American Criminal Law Review 36 (1999): 929–956.