Opposition — Ritter v. United States

Octoses 7 TERM, 1978

Eimer Gary RITTER, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNI ED STATES COURT OF APPE.iLS FOR

- “THE FIFTH CiRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

Wape H. McCree, Jr.,

Solicitor General,

Puitie B. HEYMANN,

Assistant Attorney General,

Ropert J. ERICKSON,

JAMES ROLAND DiFonzo,

Attorneys, -

Deparimeni of Justice,

Washington, D.C. 20530.

In the Supreme Court of the united States

OCTOBER TERM, 1978

No. 77-1801

ELmMerR GARY RITTER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORAR/ TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 21-33) is

reported at 569 F. 2d 1331.

JURISDICTION

The judgment of the court of appeals was entered on

March 23, 1978. A petition for rehearing was denied on

May 24, 1978 (Pet. App. 34). The petition for a writ of

certiorari was filed on June 20, 1978. The jurisdiction of

this Court is invoked under 28 U.S.C. 12541).

QUESTION PRESENTED

Whether the obstruction of justice statute, 18 U.S.C.

1503, encompasses the selling of grand jury transcripts by

petitioner, a court reporter, to subjects of the grand jury

investigation.

(1)

PON EE 2 TT

2

STATEMENT

Following a bench trial in the United States District

Court for the Middle District of Louisiana, petitioner and

co-defendant Herbert A. Howard were convicted of

conspiracy to obstruct the due administration of justice,

in violation of 18 U.S.C. 371 and 18 U.S.C. 1503, by

offering to sell transcripts of secret grand jury testimony.

Petitioner was sentenced to three years’ imprisonment.

The court of appeals affirmed the convictions in a

comprehensive opinion upon which we rely (Pet. App. 21-

33).

The facts developed at trial are undisputed. Petitioner

was a certified court reporter employed to record

testimony before the federal grand jury in Baton Rouge.

Louisiana. In October 1976, co-defendant Howard, acting

in concert with petitioner, contacted Jules and Roger

LeBlanc through an intermediary and informed them that

he had access to materials that would be oi interest to

them in view of the grand jury's investigation into their

banking affairs. The LeBlancs notified the F.B.1. of this

contact and agreed to assist in foiling the scheme.

Petitioner and Howard thereafter met with the LeBlancs

and agreed to sell them eight transcripts and a tape

recording of secret grand jury testimony for $10,000. The

LeBlancs also agreed to pay $1,000 a month, in advance.

to Howard aS petitioner’s agent for future transcripts of

testimony in connection with the same grand jury

investigation. Immediately upon receiving $11,000 from

the LeBlancs, petitioner and Howard were arrested (see

Tr. 94-97).

ARGUMENT

The sole question presented is whether the obstruction

of justice statute, 18 U.S.C. 1503, encompasses the selling

of grand jury transcripts by a court reporter to subjects of

3

the grand jury investigation.' Specifically, petitioner

argues that, under the principle of ejusdem generis,

Section 1503 should be construed to reach only those

persons who use threats, force, or similar means to

obstruct the administration of justice and that the statute

therefore was unconstitutionally vague as applied to him.

To be sure, acts or threats of force that intimidate court

officers, jurors, or witnesses or that affect the “due

administration of justice” are proscribed by the statute.

But the plain language of Section 1503 also punishes

anyone who “corruptly * * * influences, obstructs, or

impedes * * * the due administration of justice.” The

evidence at trial clearly showed that petitioner and

Howard endeavored for pecuniary gain to sell secret

grand jury materials to persons who were the subjects of a

criminal investigation. Consequently, the court of appeals

correctly held that -petitioner’s conduct constituted a

conspiracy to obstruct justice.

Relying on United States v. Metcalf, 435 F. 2d 754, 757

(C.A. 9), petitioner suggests (Pet. 17) that, despite the

clear statutory language, Section 1503's coverage should

be limited to “intimidating actions.” Such a narrow

reading of the statute would be justified only if Congress

had been concerned exclusively with “coercive”

obstructions of justice. As the court of appeals noted (Pet.

App. 30-31 and n. 8), however, the legislative history does

not support that limitation. 18 U.S.C. 1503, together with

18 U.S.C. 401 (defining the power of federal courts to

punish contempt), are derived from the Act of March 2,

1831, 4 Stat. 487, whose purpose was to proscribe various

conduct committed in contempt of court. As presently

codified, Section 401 covers contempts in the court's

'Section 1503 is reprinted in both the petition (Pet. 3) and the court

of appeals opinion (Pet. App. 25 n. 1).

4

presence, while Section 1503 deals with out-of-court

obstructions. See Nye v. United States, 313 U.S. 33, 48-

49. Thus, Section 1503 is designed to achieve the twin

goals of protecting participants in judicial proceedings and

preventing miscarriages of justice by corrupt methods.

Anderson v. United States, 215 F. 2d 84, 88 (C.A. 6),

certiorari denied sub nom. Lewis v. United States, 348

U.S. 888; United States v. Metcalf, supra, 435 F. 2d at

756.

Although there is language in Meicalf which suggests

that “the manner in which the statute may be violated

would ordinarily seem to be limited to intimidating

actions,” this statement was neither necessary to the

resolution of that case? nor supported by any analysis.

Both parts of Section 1503 refer to “[wJhoever corruptly,

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

communication, endeavors to influence, intimidate, or

impede * * *” the due administration of justice (emphasis

added). The first part of Section 1503 is clearly aimed at

situations where the protection of participants in court

proceedings is in jeopardy; the second part of the statute

is more broadly framed to protect the “due administration

of justice.” In other words, to restrict the reach of the

“due administration” clause to instances where a court

participant is threatened or forcibly intimidated would

render the second part of the statute essentially

meaningless. See United States v. Alpers, 338 U.S. 680.

682; United States v. Walasek, 527 F. 2d 676, 679 n. 11

(C.A. 3). It goes without saying that a “statute should be

construed so that effect is given to aii its provisions, so

that mo part will be inoperative or superfluous, void or —

2The court in Metcalf (435 F. 2d at 557) held not only that there

was a lack of evidence of coercion on the defendant's part, but also

that the defendant's actions did not relate to a pending judicial pro-

ceeding, which is a requirement of Section 1503.

5

insignificant * * *” (emphasis added). Sutherland, Siaiu-

tory Construction § 46.06 (4th ed. 1973).

_ Thus, as the court of appeals explained (Pet. App. 26-

27; footnotes omitted):

Whatever can be accomplished through intimidating

or influencing a witness, juror, or court official is

labeled by section 1503 as an obstruction of justice,

for the reason that each of these actors has certain

duties imposed by law, and the interference with his

performance of these duties necessarily disrupts the

processes of the criminal justice system. Crucial to an

understanding of the instant case is the realization

that this same interference can occur despite the

absence of any personal contact with a juror, witness,

or official. For example, persons violate section 1503

when they destroy evidence relevant to a judicial

proceeding, which demonstrates that the statute is

concerned not only with protecting witnesses, jurors,

and court officials but also with preventing “mis-

carriage{s] of Justice.” Samples v. United States.

121 F. 2d 263, 265 (Sth Cir.), cert. denied, 314 U.S.

662, 62 S.Ct. 129, 86 L.Ed. 530 (1941). * * * Using

threats to prevent a grand jury witness from testify-

ing has the result of destroying evidence; so does the

burning of transcripts of that testimony, and both

acts obstruct the administration of justice. The use of

threats against a witness falls under the specific

language of section 1503, while the destruction of

documents comes under the omnibus clause.

See also United States v. Partin, 552 F. 2d 621, 63! (C.A.

5). certiorari denied, 434 U.S. 903. So, too, it is well

established that Section 1503 extends to obstructions ol

justice perpetrated through bribery, a form of non-

coercive conduct. United States v. DeAlesandro, 361 F. 2d

ewe

6

694, 699 (C.A. 2), certiorari denied, 385 U.S. 842; United

States v. Medlin, 353 F. 2d 789 (C.A. 6), certiorari denied,

384 U.S. 973; United States v. Hoffa, 349 F. 2d 20, 40

(C.A. 6), affirmed, 385 U.S. 293. See also United States v.

Walasek, supra, 527 F. 2d at’679 n. 9

In sum, there is no sound reason for applying the

principle of ejusdem generis—at least the application of

that principle urged by petitioner‘—to the statute in-

volved here. Ejusdem generis serves only to “ascertain{]

the correct meaning of words when there is uncertainty

* **” but “may not be used to defeat the obvious pur-

pose of legislation.” United States v. Powell, 423 U.S. 87,

91, quoting from Gooch v. United States, 297 U.S. 124,

128.

Finally, petitioner's contention that the reach of Section

1503’s “due administration of justice” clause is imper-

missibly vague, as applied to his conduct, is equally

unconvincing.» As the Court stated in Jordan v. De

‘Indeed, the continuing validity of the Metcalf dictum is open to

question. See United States v. Friedman, 445 F. 2d 1076, 1078 (C.A.

9), certiorari denied sub nom. Jacobs v. United States, 404 U.S. 958

(affirming, albeit without discussion, the defendant's conviction for.

inter alia, obstructing justice by obtaining and using unreleased grand

jury transcripts).

‘Petitioner refers (Pet. 13-14) to the elaboration of ejusdem generis

principles in Haili v. United States, 260 F. 2d 744 (C.A. 9); United

States v. Essex, 407 F. 2d 214(C.A. 6); United States v. Ryan, 455 F.

2d 728 (C.A. 9); and United States v. Knife, 371 F. Supp. 1345 (D.

S.D.). However, as the court of appeals’ discussion shows (Pet. App.

26 n. 3), these cases are each distinguishable and may be read as

holding only that the “due administration of justice” clause prohibits

acts designed to bring about evils “similar” or “similar in nature” to —

those prohibited by the statute’s specific language. Petitioner's

conduct, in breaching the secrecy of the grand jury, tended to

produce the same result in terms of obstructing justice as if he had

bribed a grand juror for the same information, conduct that

certainly would be within the scope of Section 1503.

‘As the court below pointed out (Pet. App. 31 n. 9), since

petitioner's vagueness challenge does not involve any First

7

George, 341 U.S. 223, 231-232, whenever statutory

“language conveys sufficiently definite warning as to the

proscribed conduct when measured by common

understanding and practices,” the statute passes

constitutional muster. Petitioner concedes that the

unauthorized disclosure of grand jury proceedings is

within the obvious intendment of the statute if violence or

intimidation is used to obtain this end. No different

result is required if the unauthorized disclosure of the

4ame materials occurs by “corrupt” means, including sale

by a person in breach of a known duty of secrecy. See

Fed. R. Crim. P. 6{e). There can be no doubt that

petitioner’s attempted sale of grand jury transcripts to

subjects of the investigation tended seriousiy to obsiruct

the accomplishment of the grand jury's important

functions and to disrupt the orderly procedures of the

criminal justice system. See United States v. Procter &

Gamble Co., 356 U.S. 677, 681-682 and n. 6; | Wright,

Federal Practice & Procedure § 106, p. 171 (1969).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Wave H. McCret, Jr..

Solicitor General.

Puitie B. HEYMANN.

Assistant Attorney General.

RoBert J. Erickson,

JAMES ROLAND DiFonzo.

Altorneys.

AuGustT 1978.

Amendment considerations it need only be examined in light of the

facts of the case at hand. See United Staies v. Powell, supra, 423 U.S.

at 92; Rose v. Locke, 423 U.S. 48, 50 n. 3; Parker v. Levy, 417 US.

733, 759.

DOJ-1978-08