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...Acting Corruptly with Intent b. Endeavoring to Obstruct Justice C. Acts Prosecuted Under [section] 1503 1. Concealment, Alteration or Destruction of Documents 2. Encouraging or Rendering False Testimony D. Defenses to [section] 1503 1. Legal Impossibility. 2. "Fear of Reprisal". E. Venue for Prosecution Under [section] 1503 F. Section 1505: The Agency Provision III. WITNESS TAMPERING A. Scope of [section] 1512 and [section] 1513 B. Elements of a [section] 1512(b) Offense 1. Knowingly 2. Engaged in Enumerated Acts a. Intimidation, Physical Force, or Threats b. Misleading Conduct c. Corrupt Persuasion 3. Intent to Influence Testimony 4. Official Proceeding C. Other [section] 1512 Offenses and Issues 1. Re-lettering of [section] 1512 2. Section 1512(a) 3. Section 1512(c) 4. Section 1512(d) D. Defenses 1. Affirmative Defense Under [section] 1512 2. Constitutionality of [section] 1512 and [section] 1513 E. Venue Under [section] 1512 IV. CORPORATE ACCOUNTABILITY A. Section 1519: Destruction, Alteration or Falsification of Documents B. Section 1520: Corporate Audit Records V. PENALTIES A. Section 1503 B. Sections 1512 and 1513 C. U.S.S.G. [section] 3C1.1
I. INTRODUCTION
Obstruction of justice is any "interference with the orderly administration of law and justice," (1) and may consist of "a medley of crimes." (2) This area of the law is governed principally by 18 U.S.C. [section] 1501 through [section] 1520, which protect the integrity of proceedings before the federal judiciary and other governmental bodies. (3) While many of the provisions address very particular actions or behaviors, (4) this Article focuses specifically on the four provisions given the most expansive treatment by courts: [section] 1503, [section] 1505, [section] 1512, and [section] 1513. This Article also will briefly examine the recently added [section] 1519 and [section] 1520. Section II of this Article examines [section] 1503, which governs obstruction of justice affecting jurors, officers of the court, and judges, and [section] 1505, which governs obstruction of justice in proceedings before departments, agencies, and committees. Section HI examines prohibitions against witness tampering under [section] 1512 and [section] 1513. Section IV discusses corporate accountability under [section] 1519 and [section] 1520. Finally, Section V discusses penalties under [section] 1503, [section] 1512, and [section] 1513.
II. OBSTRUCTION OF JUSTICE: THE OMNIBUS PROVISION
Section 1503 is known as the Omnibus Obstruction Provision ("Omnibus Provision") because it applies to a broad range of conduct. (5) It is designed "to protect individuals involved in federal judicial proceedings and to prevent 'miscarriages of justice by corrupt methods.'" (6) It also serves to "ensure that criminals [cannot] circumvent the law's purpose by devising novel and creative schemes that would interfere with administration of justice but would nonetheless fall outside the scope of [section] 1503's specific prohibitions." (7) Additionally, the Omnibus Provision protects jurors and judicial officers from threats, intimidation, and retaliation. (8) Attempted bribery of officials intended to alter the outcome of a judicial proceeding is also an offense under [section] 1503. (9) Moreover, most courts have applied [section] 1503 to acts of obstruction that affect witnesses. (10) Section 1505 applies to conduct similar to that addressed by [section] 1503, but in the context of federal agency proceedings rather than court proceedings. (11)
This section discusses [section] 1503 and [section] 1505 in six parts: Part A discusses the scope of [section] 1503; Part B delineates the elements of [section] 1503 offenses; Part C analyzes the acts prosecuted under [section] 1503; Part D presents various defenses to [section] 1503 charges; Part E describes issues relating to venue; and Part F surveys [section] 1505, the Agency Provision.
A. Scope of [section] 1503
The structure Of [section] 1503 protects the judicial process in two ways. First the specific language of the statute forbids corruptly (12) influencing or endeavoring to influence any grand or petit juror or officer of the court by threats or force, or by letter or communication. (13) Second, the "Omnibus Clause," (14) includes a broad range of actions (15) and functions and is "a catch-all provision that generally prohibits conduct that interferes with the 'due administration of justice" (16) if the defendant's actions have the "natural and probable" effect of interfering with the due administration of justice. (17) Section 1503 applies to both civil and criminal proceedings. (18)
B. Elements of a [section] 1503 Offense
Section 1503 applies to both actual and attempted obstructions of justice. (19) For a conviction, the government is typically required to prove: (i) that the obstruction was directed toward a pending federal judicial proceeding; (ii) that the defendant knew of or had notice of the proceeding; and (iii) that the defendant acted or attempted to act corruptly with intent to obstruct or interfere with the proceeding or due administration of justice. (20) In most courts, the government need only' allege the above elements to indict under [section] 1503. (21) The First and Seventh Circuits, however, also explicitly require that a fact finder discern the motive that led the defendant to perform the alleged actions to issue an indictment. (22)
1. Pending Judicial Proceedings
Most circuits agree that the existence of a pending judicial proceeding is a prerequisite for conviction under [section] 1503. (23) Accordingly, [section] 1503 does not give authority to prosecute obstruction of an independent government investigation or official proceeding not connected with a pending judicial proceeding. (24) The circuits, however, disagree over when a proceeding becomes "pending." (25) The consensus among the circuits that have addressed the issue is that a proceeding is "pending, under [section] 1503 until disposition is made of any direct appeal that would result in a new trial. (26)
2. Knowledge of Pending Proceeding
In circuits that require a pending proceeding, the government satisfies the knowledge element of [section] 1503 by showing that the accused knew of the proceeding. (27) The government must prove not only that the defendant was aware of a pending investigation, but also that he had knowledge that the pending investigation was connected to a grand jury, in order to be convicted of obstructing that grand jury proceeding. (28)
3. Intent to Obstruct Justice
The intent element of [section] 1503 requires that a defendant corruptly and intentionally act (29) to obstruct a proceeding or the due administration of justice, or "endeavor" to interfere with a proceeding. (30) The defendant need not know that the proceeding was federal in nature. (31) The intent element is referred to as the "nexus" requirement. (32)
a. Acting Corruptly with Intent
Courts generally construe the statutory term "corruptly" as an intent requirement, though the meaning of the term can vary in different contexts. (33) There is a split amongst the circuits in how the intent element is to be applied. (34) Some circuits interpret "corruptly" to refer to the specific intent of the defendant (35) while others require only that obstruction of justice is the reasonably foreseeable consequence of his actions. (36)
In Pettibone v. United States, the Supreme Court interpreted the "corrupt" intent requirement of Rev. Stat. [section] 5399 (1878), the predecessor obstruction of justice statute, finding that provision to require "specific intent," (37) i.e., intent to actually achieve a designated, predetermined result. (38) In 1979, however, the Fourth Circuit in United States v. Neiswender read the intent requirement to require less than specific intent, declaring that "[t]he defendant's actual design is irrelevant." (39) The Fourth Circuit then created a two-step foreseeability rule for intent: first, "the defendant ... had knowledge or notice that success in his fraud would have likely resulted in an obstruction of justice"; second, notice was "provided by the reasonable foreseeability of the natural and probable consequences of the defendant's acts." (40)
Since Neiswender, courts have found the intent requirement satisfied if the government shows that the defendant knowingly and intentionally undertook an action from which an obstruction of justice was a reasonably foreseeable result. (41) Furthermore, courts have held that specific intent may be inferred from circumstantial evidence. (42)
b. Endeavoring to Obstruct Justice
Proving that the defendant's endeavored to obstruct justice satisfies the intent element of an obstruction of justice offense. (43) "Endeavor" has been defined as "any effort or assay to accomplish the evil purpose the section was enacted to prevent." (44) Courts have consistently held that "endeavor" denotes a lesser threshold of purposeful activity than "attempt." (45) Specifically, the government need only prove that "the endeavor [has] the 'natural and probable effect' of interfering with the due administration of justice." (46) Courts have upheld convictions even where the endeavor had only a remote possibility of becoming an obstruction. (47)
Courts have also held that, since [section] 1503 was designed to proscribe all corrupt methods of obstructing justice, force or intimidation is not an essential element of a corrupt endeavor to influence. (48) A broad variety of actions constitute endeavors for obstruction of justice purposes. For example, a defendant may be convicted of endeavoring to obstruct justice even when success is impossible, because the object of the endeavor is an undercover authority. (49) 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; however, such a statement must have the natural and probable consequence of obstructing the due administration of justice. (50) Similarly, forged letters can constitute an "endeavor" to influence the judge, even if not relied upon by the court in its sentencing determination. (51)
C. Acts Prosecuted Under [section] 1503
Cases arising under the Omnibus Provision usually fall into two categories: (i) concealment, alteration, or destruction of documents; or (ii) encouraging or rendering false testimony. (52) Significantly, "[i]t is not the means employed by the defendant that are specifically prohibited by the omnibus provision ... but ... instead, the defendant's corrupt endeavor which motivated the action." (53) The person engaging in activities prohibited by [section] 1503 need not be a party to the pending judicial proceeding in order to be convicted. (54) Such cases are discussed below.
1. Concealment, Alteration or Destruction of Documents
The Omnibus Provision prohibits concealment, alteration, and destruction of subpoenaed documents. (55) While the statute generally protects against such document abuse in both civil and criminal proceedings, [section] 1503 traditionally has been applied only in criminal proceedings. (56)
To be convicted of obstruction of justice for concealment or alteration of subpoenaed documents, a defendant must: (i) know of the pending grand jury investigation; (ii)know that particular documents are covered by a subpoena; and (iii) willfully conceal or endeavor to conceal them from a grand jury, or willfully alter or endeavor to alter the documents before presentation to the grand jury. (57) The statute applies to both current and outdated documents. (58) The destruction of documents in anticipation of a subpoena can also constitute obstruction of justice. (59) The government need not prove that the destroyed documents are material. (60) Courts have found that, in general, a passive failure to produce documents does not constitute "corruptly" obstructing justice without proof of some dishonest affirmative conduct on the part of the defendant. (61) Both affirmative conduct performed by the defendant or at his direction may give rise to a cause of action. (62)
2. Encouraging or Rendering False Testimony
False statements that may interfere with judicial proceedings may be prosecuted under [section] 1503. (63) The false statement need not actually be used in court or delivered to a court officer to fall within the statute. (64) However, to prove obstruction of justice based solely on false testimony, most courts require evidence of a nexus between the false statement and the obstruction or attempted obstruction of justice. (65) In Arthur Anderson, the Court reversed Arthur Anderson's conviction because the jury instructions did not require the jury to find a nexus between the obstructive act and the proceeding; the court held that without this finding, the defendant lacked the requisite [section] 1503 intent. (66)
A defendant's intentionally evasive testimony, designed to conceal his true knowledge of the facts from a jury, may be sufficient to support a conviction for obstruction of justice. (67) In Brogan v. United States, the Supreme Court indicated that [section] 1503's broad language may be applicable to false denials of guilt. (68) Refusing to testify before a grand jury may also be sufficient to support an obstruction conviction. (69) Furthermore, encouraging a prospective witness to render false testimony has been held to violate [section] 1503, (70) as has tricking a grand jury witness into giving false testimony. (71) Defendants may also violate the statute by making offers to witnesses testifying in an investigation not involving a grand jury. (72)
D. Defenses to [section] 1503
Most affirmative defenses that have been raised to [section] 1503 prosecutions have been unsuccessful. Constitutional challenges to [section] 1503 have generally failed, (73) as have defenses such as immunity (74) and entrapment. (75) Double jeopardy defenses will also generally fail (76) as will "zealous representation" (77) and "impossibility of success" (78) defenses. Defendants have raised successful statute of limitations defenses. (79) The defense of legal impossibility has met with some acceptance in the past, but today has limited application in only a few circuits. (80) The "fear of reprisal" defense, although limited and rarely used, may be more successful. These latter two defenses are discussed below.
1. Legal Impossibility
Unlike impossibility of success or factual impossibility, legal impossibility historically was a successful defense if the intended acts did not constitute a crime. (81) For example, jury tampering under [section] 1503 cannot be proven if the defendant acted only after the verdict was entered. (82) Today, however, it is unclear if legal impossibility is actually a defense, or rather an allegation that the prosecution has not offered sufficient evidence to prove its case. The great majority of jurisdictions have recognized that legal and factual impossibility are logically indistinguishable, and have abolished impossibility of any kind as a [section] 1503 defense. (83)
2. "Fear of Reprisal"
The defense of "fear of reprisal" has met with some success in the few instances it has been raised. (84) If a defendant raises this defense, the government has the burden of proving that the defendant's proffered motive for refusing to testify was not genuine. (85) However, if it is apparent that the defendant also has a corrupt intent for not refusing to testify, a "fear of reprisal" defense is not tenable. (86)
E. Venue for Prosecution Under [section] 1503
In 1988 Congress added subsection (h) to 18 U.S.C. [section] 1512, which 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." (87) Accordingly, [section] 1503 offense may be prosecuted in multiple venues.
F. Section 1505: The Agency Provision
Section 1505 imposes criminal penalties on much of the same behavior as [section] 1503 and has many of the same requirements as [section] 1503, but applies to proceedings before federal agencies. (88) To prove a violation of [section] 1505, the government must demonstrate that: (i) the defendant was aware of (ii) a pending proceeding before a department or agency of the United States and (iii) intentionally and corruptly endeavored to influence, obstruct, or impede that proceeding. (89) As with [section] 1502, there is no requirement that the defendant successfully obstruct the proceeding; all that is required is that an endeavor was made. (90)
What constitutes a proceeding is a question of law. (91) Under [section] 1505, the term "proceeding" encompasses both the investigative and adjudicative functions of a department or agency. (92) Even if the matter investigated will ultimately be tried before a criminal court (as opposed to an agency court), obstruction of agency investigations may still be prosecuted under [section] 1505. (93) In fact, [section] 1505 Can be applied even in instances where the governmental agency requires the intervention of a judicial court order. (94)
Under [section] 1505, the "intent" requirement has been defined as acting, purposefully. (95) There is currently a circuit split, however, regarding whether [section] 1505 parallels the [section] 1503 case law holding that a defendant is culpable so long as he should have seen that his conduct has the "natural and probable" effect of obstructing justice. (96) The "corrupt" requirement has been interpreted expansively to include both subtle threats and acts of force, (97) and has been codified to include all acts conducted with an "improper purpose." (98) It is no defense that a defendant believes the pending proceeding to be illegitimate or unjust. (99)
While venue for an obstruction of justice violation under [section] 1503, [section] 1512, and [section] 1513 has been expanded, (100) venue under [section] 1505 is only proper in the district where the alleged obstruction occurred. (101)
III. WITNESS TAMPERING
In response to growing concerns that testifying victims and other witnesses had "little hope of protection from the government if [they were] harassed or threatened by the defendant out on bail, or the defendant's friends or family; or if the convicted criminal ... decides to retaliate," (102) Congress enacted the Victim and Witness Protection Act of 1982 ("VWPA"). (103) The VWPA sought to provide greater protections for witnesses than had existed under [section] 1503 and other federal obstruction of justice laws. (104) Protections afforded by the VWPA extend beyond the course of the judicial proceeding, which includes grand jury hearings through potential retrials, (105) and continue to protect witnesses even after the proceeding has concluded. (106) The VWPA applies to a variety of different official proceedings, including some concerned with regulatory and administrative matters. (107) Moreover, the law applies to any individual who engages in the prohibited conduct, not only defendants. (108)
The VWPA provides for both criminal sanctions and civil remedies. This Article focuses solely on the criminal components, found in 18 U.S.C. [section] 1512 and [section] 1513. This discussion of [section] 1512 and [section] 1513 is divided into five parts: Part A describes the general scope of [section] 1512 and [section] 1513, Part B analyzes the elements of the [section] 1512(b) offense of witness tampering; Part C examines other [section] 1512 offenses; Part D summarizes possible defenses to [section] 1512 and [section] 1513 crimes; and Part. E explains venue under [section] 1512.
A. Scope of [section] 1512 and [section] 1513
Section 1512 provides comprehensive federal protection to a range of persons who are confronted with various forms of witness tampering. (109) Section 1512 extends its protection to any "person," broadly construed to include potential Witnesses, (110) grand jury witnesses, (111) excused witnesses, (112) and state investigators. (113) Through amendment and interpretation, [section] 1512 now applies to all types of witness tampering, not just coercive acts. (114)
Section 1513 protects witnesses against retaliation directed at them as a result of their testimony or their production of evidence at an official proceeding, or their production of information to a law enforcement officer. (115) Although the government is able to prosecute exclusively under [section] 1513 if it so chooses, (116) defendants charged with a [section] 1513 violation often face charges under [section] 1512 as well. (117) This coupling of claims has overcome multiplicity challenges in cases where the government proved that the defendant acted out of retaliation for past testimony and in an effort to prevent future testimony. (118)
B. Elements of a [section] 1512(b) Offense...
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