Petition — Haas v. United States

-,.

Supreme Court, U. &-

FILED

JAN 24 1979

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

N° 78-1161

THOMAS M. HAAS,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BARRY HESS

HESS, ATCHISON &

STOUT

301 ST. JOSEPH

POST OFFICE BOX 1706

MOBILE, ALABAMA 36601

Attorney for the Petitioner

SCOFIELDS' QUALITY PRINTERS, P. O. BOX 53096, N. O., LA. 70153 - 504/822-1611

INDEX

Page

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ccc kvnweds sesices esses 2

I Bh is oka pekwins v6v'cnsewsseseee 3

IT OM ovo ks cece rinccivevedsseces 4

Reasons for Granting the Writ .................. 6

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PPT erTeeeerereTeeeeeeeee 18

APPENDIX:

Opinion of the United States Court of

Appeals for the Fifth Circuit ................ la

Judgment and Order of the United States

District Court for the Southern District of

Us kas viele 46 bk 5 4 6:40 a0. lla

Indictment, dated April 12, 1977, filed in the

United States District Court for the

Southern District of Alabama charging

Petitioner with violating Title 18, U.S.C.

es Ce iy oh wide hea ae 000% 12a

Opinion of the United States District Court

for the Southern District of Alabama dated

ee coer ecns nonce ves 13a

Order of the United States Court of

Appeals for the Fifth Circuit denying Peti-

tion for Rehearing and Petition for Rehear-

ahs 664 8a 60 Aces ase eo 29a

ii

TABLE OF AUTHORITIES

LRG HORSE TER Sea Seh Pores i SAR tr ee 9,11

Hamling v. United States, 418U.S.87(1974) ...9,11

Pettibone v. United States, 148 U.S. 197

Re ode se sed! a eg A 7,8,9,12

Russell v. United States, 369 U.S. 749

SE RTE Revie ose. AIRY, Oa eam eS 12,13,14

United States v. Haas, 440 F.Supp. 426 (S.D.

AIRS Ap glean Cur Nene Ne 5,7

United States v. Haas, 583 F.2d 216 (5th Cir.

PTO aahs ceostascvean cee acs 5,11,14,17

United States v. Morrison, 536 F.2d 286 (9th

St Ev es weud ube coon becuse cig os 9

United States v. Radetsky, 535 F.2d 556 (10th

MN NTE 2 9 08 tua aguas deci ee uu. Ge 16

Van Liew v. United States, 321 F.2d 664 (Sth

ES Cowes. ioe oi er 14,15

Statutes and Regulations:

Wee a UE oo bk ck cc ktecncuice 3,4,6,7,8,9,10,12

RU TS as ns by a Cab wckis hectare 10

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

No.

THOMAS M. HAAS,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Petitioner, Thomas M. Haas, prays that a writ of

certiorari issue to review the judgment of the United

States Court of Appeals for the Fifth Circuit reversing

a judgment rendered by the United States District

Court for the Southern District of Alabama.

OPINIONS BELOW

The opinion of the United States District Court for

the Southern District of Alabama is reported at 440

2

F.Supp. 426 (S.D.Ala. 1977), and is set out in the

Appendix, infra, pp. 13a-29a. The opinion of the Unit-

ed States Court of Appeals for the Fifth Circuit is

reported at 583 F.2d 216 (Sth Cir. 1978), and set out in

the Appendix, infra, pp. 1a-10a.

JURISDICTION

The judgment of the Court of Appeals was entered

on November 6, 1978, and a timely petition for rehear-

ing en banc was denied on December 26, 1978. (Appen-

dix, infra, pp. 29a-30a). The jurisdiction of this Court is

invoked under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. When the Court of Appeals concedes the need

for additional facts may be “essential,” does the unsu

ported allegation of a corrupt endeavor to a ai

and impede a grand juror for an unspecified purpose

sufficiently allege the specific intent to obstruct justice

and the essential knowledge of the circumstances that

make an act a violation of 18 U.S.C. §1503.

| 2. Whether the bare allegation of the communica-

tion of unspecified information for an unstated pur-

pose in an indictment seeking to allege the obstruction

of justice sufficiently apprises the petitioner of the

offense sought to be charged, protects against double

jeopardy, and sufficiently informs the court of the facts

alleged so it may decide whether they are legally suf-

ficient to support a conviction.

3

STATUTES INVOLVED

18 U.S.C. §1503

Influencing or injuring officer, juror or

witness generally.

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

threatening letter or communication, endeavors to in-

fluence, intimidate, or impede any witness, in any court

of the United States or before any United States

magistrate or other committing magistrate, or any

grand or petit juror, or officer in or of any court of the

United States, or officer who may be serving at any ex-

amination or other proceeding before any United

States magistrate or other committing magistrate, in

the discharge of his duty, or injures any party or

witness in his person or property on account of his

attending or having attended such court or examina-

tion before such officer, commissioner, or other com-

mitting magistrate, or on account of his testifying or

having testified to any matter pending therein, or in-

jures 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,

or other committing magistrate in his person or prop-

erty on account of the performance of his official

duties, or corruptly or by threats or force, or by any

threatening letter or communication, influences, ob-

structs, or impedes, or endeavors to influence,

4

obstruct, or impede, the due administration of justice,

shall be fined not more than $5,000 or imprisoned not

more than five years, or both.

As amended October 17, 1968, Pub.L. 90-578, Title III,

§301 (a) (1), (3), 82 Stat. 1115.

STATEMENT OF THE CASE

The jurisdiction of the district court was invoked by

the filing of a one count indictment seeking to allege a

violation of 18 U.S.C. §1503. The indictment charged

that:

“On or about the 5th day of March, 1977, in

Mobile County, within the Southern Division

of the Southern District of Alabama,

THOMAS M. HAAS corruptly did endeavor

to influence and impede Sandra D. Haas, who

was then a member of a Federal Grand Jury

for the Southern District of Alabama, con-

sidering the circumstances surrounding the

death of Louis Wallace, by communicating in-

formation over the telephone about the

matter being considered by the Grand Jury in

an effort to influence and impede Sandra D.

Haas in the discharge of her duty as a Grand

Juror; in violation of Title 18, United States

Code, Section 1503.”

The petitioner moved to dismiss the indictment for

failure to allege the essential elements of the offense

5

sought to be charged and failure to aver sufficient facts

to satisfy the constitutionally mandated jeopardy and

apprisal functions. After due consideration the district

court dismissed the indictment. United States v. Haas, 440

F.Supp. 426 (S.D. Ala. 1977). Synoptically, that court

held that the bare allegations in the indictment that the

petitioner corruptly endeavored to influence and im-

pede a member of a grand jury did not encompass the

requirements of specific intent to commit the act and

knowledge of circumstances that would make the act a

violation of the obstruction of justice statute. The

absence of the allegations of intent and knowledge,

consequently, rendered the indictment fatally defec-

tive for failure to allege an offense.

The government appealed the district court’s ruling

to the United States Court of Appeals for the Fifth Cir-

cuit. In an opinion dated November 6, 1978, the Court

of Appeals reversed. United States v. Haas, 583 F.2d 216

(Sth Cir. 1978). The Court of Appeals erroneously con- |

ceived the overriding issue as whether the formal re-

quisites of criminal pleading had been satisfied. It held

that the essential elements of intent and knowledge

were sufficiently alleged by the language of the indict-

ment, taken as a whole, coupled with averment of

“facts.” Paradoxically, the opinion expresses concern

over the adequacy of factual averment and expressly

finds that the need for further information may be so

essential that the failure to grant a defense motion for

bill of particulars “may well be reversible error.” A

timely motion for rehearing en banc was duly filed but

denied on December 26, 1978.

6

REASONS FOR GRANTING THE WRIT

This petition challenges the sufficiency of an indict-

ment brought under 18 U.S.C. §1503, which pro-

scribes the obstruction of justice, and is bottomed upon

the separate and distinct propositions that the indict-

ment at issue does not state the elements of the offense

sought to be charged and fails to apprise the petitioner

of the charge against him.

The conceptual foundation for the petition is the

minimal constitutional standards a federal criminal

indictment must satisfy. The opinion of the Fifth Cir-

cuit misconceives the true issue by resorting to the for-

mal requisites of criminal pleading to gauge the suf-

ficiency of the indictment. That court’s characteriza-

tion of the question of whether the elements of the

offense are sufficiently alleged as “technical”

demonstrates a failure to make the basic distinction

between the formalities of criminal pleading and the

substantive constitutional requirements.

The dilemma is compounded by the Circuit Court’s

anomalistic reliance upon the indictment’s “facts” in

support of its rationale while making express reference

to the “skeletal nature of factual averment” and the ex-

plicit statement that the indictment “does not appear to

meet fully the Government’s obligation to permit

defendant to prepare a defense.”

It is of cardinal importance to recognize that the peti-

tion is cast within the contextual mold of 18 U.S.C.

7

§1503. In Pettibone v. United States, 148 U.S. 197 (1893),

which addressed the sufficiency of an indictment

brought under a statutory predecessor to §1503, this

Court settled the specific intent to obstruct justice, not

the general intent to commit an unlawful act, is an es-

sential element of the offense proscribed. Pettibone

further requires that the indictment charge knowl-

edge or notice or set out facts that show knowledge or

notice on the part of the accused that the witness or of-

ficer was such. Since grand jurors are included in the

current obstruction of justice statute, no logical basis

exists for excluding this category of persons from the

knowledge requirement. It follows, therefore, that the

specific intent requisite to a violation of the statute and

the knowledge which must preceed that intent man-

date particularized averments of these essential

elements in an indictment charging an obstruction of

justice. “The charge must be made directly, and not in-

ferentially, or by way of recital.” Pettibone, supra, at 202.

This case presents the additional significant question

of whether 18 U.S.C. §1503 is so inclusive as to make

criminal an unspecified act for an unknown purpose.

As the District Court so aptly stated:

“It is the design of the statute to provide a

judicial environment free of intentional and

knowing efforts to obstruct its operation.

Punishment of inadvertent or innocent acts

serves no purpose in maintaining this en-

vironment .. .” United States v. Haas, supra at

429.

8

Indicative of the import of this issue is that not a

single decision of attempting to influence agrand juror

in the manner alleged has ever been reported.

1. The decision below conflicts with this Court’s

decision of Pettibone v. United States, supra. The indict-

ment therein sought to allege a conspiracy corruptly,

and by threats and force, to obstruct the due adminis-

tration of justice. Pettibone provides compelling prece-

dent in support of the conclusion that the decision of

Court of Appeals was in error. Its precedential value

rests upon: (1) the explicit language that the specific in-

tent to violate the statute, not the general intent to

commit an unlawful act, is an essential element of the

conduct forbidden; (2) the requirement that a legally

sufficient allegation charge knowledge or set forth

facts that show knowledge on the part of the accused:

and (3) its irrefutable requirement that a criminal

charge must be directly, not inferentially alleged.

In determining whether the indictment sufficiently

alleges each material element of the offense charged

the underlying question is: when the Court of Appeals

concedes the need for additional facts may be “essen-

tial,” does the allegation “corruptly endeavored” in-

clude the specific intent to obstruct justice and a

knowledge of the circumstances that make an act a

violation of 18 U.S.C. §1503. Pettibone answers the ques-

tion in the negative.

With reference to the essential element of intent, the

operative language in the indictment is “Thomas M.

9

Haas corruptly did endeavor to influence and impede

Sandra D. Haas.” The object of the alleged corrupt

endeavor is not stated. Therefore, even if “corruptly

endeavored” alleges an intentional act, the absence of

an averment of the object of the alleged endeavor does

not charge an intentional exertion toward an unlawful

purpose. And it clearly does not allege the specific in-

tent to obstruct justice. It strains credulity to maintain

that the intent of the petitioner was to obstruct justice

when the object of the alleged corrupt endeavor is left

to the imagination.

The insufficiency of the allegation of knowledge is

addressed infra in conjunction with the analysis of Gen-

na v. United States, 293 F. 387 (7th Cir. 1923).

The decisions of this Court sanction the wording of

an indictment in the language of a statute provided

those words of themselves “fully, directly, and express-

ly, without any uncertainty or ambiguity, set forth all

the elements necessary to constitute the offense

intended to be punished.” Hamling v. United States, 418

U.S. 87, 117 (1974). The mere recital of a corrupt

endeavor, without stating its alleged purpose, does not

aver the specific intent to violate 18 U:S.C. §1503.

Specific intent should be specified with greater

particularity than general intent. United States v.

Morrison, 536 F.2d 286 (9th Cir. 1976). As Pettibone es-

tablishes, the obstruction of justice requires a par-

ticular form of criminal intent.

10

Where a statute is silent on mens rea and criminal in-

tent is an essential element of the crime, an indictment

failing to allege such intent may be defective unless

words actually appearing therein have historical mean-

ing which might signal an allegation of mens rea. Unit-

ed States v. Morrison, supra.

Like §1503, 18 U.S.C. §1711, which was at issue in

Morrison, is silent on mens rea, but more than a general

criminal intent is an essential element of the crime. The

Ninth Circuit rejected the government’s argument

that the element of intent could be inferred from statu-

tory language.

In so doing, that court distinguished general and

specific intent and recognized the greater particularity

with which specific criminal intent must be charged.

The court concluded that the requirement of greater

particularity did not permit specific intent to be charg-

ed by inference.

The Morrison analogy is particularly applicable to the

present case for two reasons: (1) more than general

criminal intent is required to violate §1503; and (2) the

Fifth Circuit maintains that both knowledge and intent

are alleged by inference.

Even if the statutory language were more precise, it

still “must be accompanied with such a statement of the

facts and circumstances as will inform the accused of

the specific offense coming under the general descrip-

11

tion, with which he is charged.” Hamling v. United States,

supra, at 117-118. The opinion of the Court of Appeals

makes specific reference to the “skeletal nature of the

factual averments in the indictment” and concedes that

“it does not appear to meet fully the government's

obligation to permit defendant to prepare a defense.”

583 F.2d at 221. Thus, the Circuit Court’s reliance upon

“facts” to support the allegation of intent and knowl-

edge is without basis, contradictory, and cannot be har-

monized with precedent.

2. The decision of the Fifth Circuit conflicts with

Genna v. United States, 293 F. 387 (7th Cir. 1923). There

the defendant was charged with having conspired to

intimidate a witness. The Seventh Circuit dismissed

the indictment because it failed to allege tha: the

defendant knew the person threatened was or was

about to be a witness in any trial or proceeding.

This precise defect is readily apparent in the instant

indictment, which does not allege that the petitioner

knew Sandra Haas, the alleged object of the corrupt en-

deavor, was a grand juror or what matter was before

the grand jury. Nevertheless, the Court of Appeals

held:

“The recital that the defendant sought to

‘influence and impede’ the juror by com-

municating information over the telephone

about the matter being considered by the

grand jury is a sufficient allegation of

knowledge.” 583 F.2d at 220.

12

No authority is cited in support of this conclusion

and none exists. The effect of this inference is to im-

permissibly allow judicial speculation to supply an

essential missing link in the presumed factual chain.

“The charge must be made directly, and not inferen-

tially, or by way or recital.” Pettibone v. United States,

supra, at 202.

This tenuous proposition is further impaired by the

Circuit Court’s attempt to utilize the distinction

between a witness, and a grand juror, as a basis for con-

cluding that Sandra Haas’ status as a grand juror re-

duces the standard for gauging the sufficiency of the

allegation of knowledge. According to the opinion

below, knowledge of one’s status as a witness is a

“critical element,” while knowledge of one’s status as a

grand juror is not.

Neither logic nor law support this contention.

Knowledge of the pendancy of a proceeding must, of

course, preceed the intent to interfere with that

proceeding. Moreover, 18 U.S.C. §1503 specifically in-

cludes grand jurors in all three categories of prohibited

acts. The opinion of the Court of Appeals, therefore,

seeks to create a distinction without a difference.

3. The decision of the Court of Appeals conflicts

with Russell v. United States, 369 U.S. 749 (1962).

This argument addresses the indictment’s insuf-

ficient averment of fact. In Russell, the indictment

13

*

sought to allege a violation of 2 U.S.C. §192, charging

that the defendants had refused to answer questions

that “were pertinent to the question then under in-

quiry” by a congressional committee.

In holding that the indictment was insufficient, this

Court said:

“(T)he very core of criminality under 2 U.S.C.

§192 is pertinency to the subject under in-

quiry of the questions which the defendant

refused to answer. What the subject actually

was, therefore, is central to every prosecu-

tion under the statute. Where guilt depends so

crucially upon such a specific identification of

fact, our cases have uniformly held that an

indictment must do more than simply repeat

the statutory language of the criminal

statute.” 369 U.S. at 764.

This infirmity exists in the instant indictment. The

crucial question in this case is what “information” the

petitioner allegedly communicated over the telephone.

Guilt irrefutably depends upon specific identification

of this fact, and Russell requires the allegation of this

fact in the indictment. Since the indictment fails to

allege this crucial fact, Russell mandates the finding that

it is legally insufficient.

At the risk of redundancy, it must be emphasized

that the opinion below explicitly states: “(I)t (the indict-

14

ment) does not appear to meet fully the government’s

obligation to permit defendant to prepare a defense.”

583 F.2d at 221. The Fifth Circuit, however, concludes

that the proper remedy is the granting of a motion for

bill of particulars.

“(T)he need for further information in this

case may beessential and the failure to grant the

defendant’s motion (for a bill of particulars) in

such an instance may well be reversible error.”

583 F.2d at 221 (emphasis supplied).

This quotation confuses the petitioner’s constitu-

tional right to know what offense is charged with the

need for evidentiary details.

The Circuit Court is saying that a bill of particulars

can salvage a defective indictment. “(I)t is a settled rule

that a bill of particulars cannot save an invalid indict-

ment.” Russell v. United States, supra, at 770.

The opinion below cannot be harmonized with its

own prior decision. Van Liew v. United States, 321 F.2d 664

(Sth Cir. 1963). The defendants therein were charged

with introducing into interstate commerce adulter-

ated and misbranded food, but the indictment failed to

state the manner of the alleged adulteration or mis-

branding. The Fifth Circuit found the indictment fatal-

ly defective because, as in the instant case, the indict-

ment failed to factually aver how the statute at issue

was allegedly violated.

15

The bare allegation of a corrupt endeavor to ob-

struct justice by communicating unspecified informa-

tion is as fatally flawed as a simple allegation that food

was adulterated or misbranded. The reason is the same

— the indictment does not state the facts relied upon to

show the act alleged was criminal. This omission in the

Haas’ indictment is even more egregious because the

objective of the alleged corrupt endeavor is left to the

imagination.

The significance of Van Liew is not limited to its

holding, for the decision underscores a fundamental

policy consideration: the federal prosecutor is not the

grand jury, and he may not determine what it is the

grand jury has charged. The practical effect of affirm-

ing the Circuit Court would be to vest unbridled dis-

cretion in the prosecutor to determine what con-

stitutes criminal conduct.

4. The failure to allege the essential elements of the

offense sought to be charged and sufficiently identify

the transaction relied upon to demonstrate a criminal

offense are constitutional infirmities, not technical

defects.

The Fifth Circuit’s decision constricts the pro-

tections charge by indictment are intended to provide.

That Court’s analytical process seeks to reinforce the

wooden notion that the challenge to the instant indict-

ment is technical and addressed only to the in-

dictment’s form.

16

The first prong for the attack on the sufficiency of

the indictment at issue is that two material elements of

the offense sought to be charged — intent to obstruct

justice and knowledge are not alleged. This critical

omission emphasizes the practical, not technical,

challenge to the sufficiency of the indictment. A con-

fiction based on the language of the instant indictment

could be found upon any one of a host of intentions and

without the knowledge required to violate the statute.

This judicial precedent forbids.

The basic proposition upon which this petition rests

is the failure of the Circuit Court to distinguish the for-

mal requisites of criminal pleading and basic constitu-

tional standards, which are the defendant’s right to: (1)

answer those charges brought by the grand jury and

not a prosecutor’s interpretation of those charges; (2)

be apprised of the charge against him in order to permit

the preparation of a defense; and (3) be protected

against double jeopardy. Of equal importance, the

court must be apprised of sufficient facts so that it may

decide whether they are legally sufficient to support a

conviction, should one be had. United States v. Radetsky,

535 F.2d 556 (10th Cir. 1976).

An analysis of these principles within the context of

this case reveals that the instant indictment does not

withstand constitutional scrutiny. First, failure to state

what “information” was allegedly communicated or for

what purpose does not inform the petitioner of the

basis of the grand jury’s accusation and grants the

17

prosecutor unbridled discretion in interpreting the

charge. For aught that appears, the evidence pre-

sented to the grand jury may not have risen to the level

of criminal conduct. The indictment clearly does not re-

veal what the grand jury believed when it returned a

true bill.

Second, the Court of Appeals itself vitiates the con-

tention of adequate apprisal by expliciting stating “it

(the indictment) does not appear fully to meet the

government's obligation to permit defendant to pre-

pare a defense.” 583 F.2d at 221. Again, it is axiomatic

that the indictment, not a bill of particulars, must ap-

prise the defendant of what he must meet at trial.

Thirdly, failure to identify the information and state

the object of the alleged corrupt endeavor do not

guarantee that the petitioner would not twice be put in

jeopardy for the same offense.

Finally, a trial judge could not say after reading this

indictment whether the facts, even if proved, would

support a criminal conviction as a matter of law.

The government has alleged an incomplete crime,

and this defective indictment could well lead to a trial

on facts not sufficient to support a conviction. If facts

exist to support a conviction, the indictment should so

state. It would be an erroneous miscarriage of justice to

require the petitioner to be tried on the skeletal allega-

tions of the instant indictment and be compelled to wait

18

until the granting of a motion for judgment of acquit-

tal reveals the evidence was insufficient from the out-

set.

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that the petition for a writ of certiorari should

be granted.

Respectfully submitted,

BARRY HESS,

HESS, ATCHISON &

STOUT

Post Office Box 1706

Mobile, Alabama 36601

Attorney for the Petitioner

CERTIFICATE OF SERVICE

I hereby certify that I have this day mailed three

copies of the foregoing Petition for Writ of Certiorari

to the United States Court of Appeals for the Fifth Cir-

cuit to Hon. Wade H. McCree, Jr., Solicitor General of

the United States, Department of Justice, Washington,

D.C. 20530, by placing same in the United States Post

Office, first class, postage prepaid, said service being

made in compliance with the United States Supreme

Court Rule 33(1).

BARRY HESS

la

APPENDIX

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

THOMAS M. HAAS,

Defendant-Appellee.

No. 77-3273

United States Court of Appeals,

Fifth Circuit.

Nov. 6, 1978.

Appeal from the United States District Court for the

Southern District of Alabama

Before RONEY, RUBIN and VANCE, Circuit Judges.

RONEY, Circuit Judge:

Thomas Haas was indicted for obstruction of justice

in violation of 18 U.S.C.A. §1503. The indictment

charged that he corruptly endeavored to influence and

impede a grand juror by communicating information

about a matter before the Grand Jury. The district

court dismissed the indictment for failure to allege es-

sential elements of knowledge and intent. Defendant

argues that the indictment also did not contain suf-

2a

ficient specific factual data. We hold that the indict-

ment, modeled on the language of the statute, need not

contain technical terms of knowledge and intent if it

recites facts and uses language which, taken as a whole,

indicate knowledge and intent and that the indictment

contains sufficient factual data to withstand a motion

to dismiss. We reverse.

I. Background

On April 12, 1977, the following indictment charged

Thomas Haas with seeking to influence a grand juror in

violation of 18 U.S.C.A. §1503!:

1 18U.S.C.A. §1503 reads:

§1503. Influencing or injuring officer, juror or

witness generally

Whoever corruptly, or by threats or force, or any

threatening letter or communication, endeavors to in-

fluence, intimidate, or impede any witness, in any court

of the United States or before any United States

magistrate or other committing magistrate, or 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

or other committing magistrate, in the discharge of his

duty, or injures any party or witness in his person or

property on account of his attending or having attended

such court or examination before such officer, com-

missioner, or other committing magistrate, or on account

of his testifying or having testified to any matter pend-

ing therein, or injures any such grand or petit juror in his

person or property on account of any verdict or indict-

ment assented to by him, or on account of his being or

having been such juror, or injures any such officer,

magistrate, 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, ob-

structs, or impedes, or endeavors to influence, obstruct,

or impede, the due administration of justice, shall be fin-

ed not more than $5,060 or imprisoned not more than

five years, or both.

3a

On or about the Sth day of March, 1977, in

Mobile County, within the Southern Division

of the Southern District of Alabama, Thomas

M. Haas corruptly did endeavor to influence

and impede Sandra D. Haas, who was then a

member of a Federal Grand Jury for the

Southern District of Alabama, considering the

circumstances surrounding the death of Louis

Wallace, by communicating information over

the telephone about the matter being con-

sidered by the Grand Jury in an effort to in-

fluence and impede Sandra D. Haas in the dis-

charge of her duty as a Grand Juror; in viola-

tion of Title 18, United States Code, Section

1503.

Defendant moved to dismiss the indictment and for a

bill of particulars, asserting a failure to allege knowl-

edge and intent and to specify sufficiently the infor-

mation communicated by defendant to the grand juror.

The district court granted the motion on the former

ground.

II]. The Haas Indictment

The validity of the indictment, of course, can only be

determined by an examination of its specific language,

taking account of it as a whole in the context of its

statutory background. See United States v. Markham, 537

F.2d 187, 192 (5th Cir. 1976), (validity of indictment de-

termined by reading it as a whole and “by practical, not

4a

technical considerations... .”), cert. denied, 429 U.S.

1041, 97 S.Ct. 739, 50 L.Ed.2d 752 (1977). The test is

not whether the indictment could have been framed in

a more satisfactory manner but whether it conforms to

minimal constitutional standards. U.S.Const. amend

VI (“In allcriminal prosecutions, the accused shall enjoy

the right. . . to be informed of the nature and cause of

the accusation. . . .”). See United States v. London, 550 F.2d

206, 211 (Sth Cir. 1977) (“The test is not whether the

indictment might have been drawn with greater cer-

tainty and exactitude, but rather whether it set forth

the elements of the offense charged and sufficiently ap-

prised defendants of the charges.”).

These standards require that the defendant (1)

should be called to answer charges actually brought by

the Grand Jury and not a prosecutor’s interpretation of

those charges; (2) be apprised of the charge against him

in order to permit preparation of a defense; (3) be pro-

tected against double jeopardy. Bartell v. United States,

227 U.S. 427, 33S.Ct. 383, 57 L.Ed. 583 (1913); Hagner v.

United States, 285 U.S. 427, 431, 52S.Ct. 417, 76L.Ed. 84

(1932); United States v. Mekjian, 505 F.2d 1320, 1324 (Sth

Cir. 1975). See also United States v. Cruikshank, 92 U.S. (2

Otto) 542, 558, 23 L.Ed. 588 (1876), which mentions an

additional element, “to inform the court of the facts

alleged, so that it may decide whether they are suffi-

cient in law to support a conviction. . . .” and Russell v.

United States, 369 U.S. 749, 768-769, 82 S.Ct. 1038, 8

L.Ed.2d 240 (1962), which treats this function as “an

important corollary purpose... .” An indictment must

5a

be “a plain, concise and definite written statement of

the essential facts constituting the offense charged.”

Fed.R.Crim.P. 7(c).

Two serious questions have been raised concerning

the validity of the Haas indictment. The first question

relates to the averment of intent and knowledge. The

second concerns the adequacy of the allegations of fact.

A. Intent and Knowledge

The first issue on appeal is whether an indictment

under 18 U.S.C.A. §1503 alleging, in the language of

the statute, that defendant corruptly endeavored to in-

fluence a grand juror is sufficient without express use

of the terms “knowledge” and “intent.” Both parties

agree that whether knowledge and intent are neces-

sary to sustain a conviction is not at issue. It is settled

that these two elements are necessary ingredients of an

offense under this statute. Pettibone v. United States, 148

U.S. 197, 13 S.Ct. 542, 37 L.Ed. 419 (1893); United States

v. Ryan, 455 F.2d 728, 734 (9th Cir. 1972); Knight v. Unit-

ed States, 310 F.2d 305, 307 (Sth Cir. 1962). Rather, the

issue here presented focuses upon the question of

whether knowledge and intent must be expressly

specified in formal technical terms. See also United States v.

Purvis, 580 F.2d 853 (Sth Cir. 1978).

The indictment alleges that the defendant “corruptly

did endeavor” to influence a member of a Grand Jury.

The term “corruptly” means for an improper motive,

6a

Martin v. United States, 166 F.2d 76, 79 (4th Cir. 1948)

(upholding a jury charge limited to the terms “corrupt-

ly endeavored” and holding that the charge “adequate-

ly covered” the elements of intent and knowledge), or

“an evil or wicked purpose,” United States v. Ryan, 455

F.2d 728, 734 (9th Cir. 1972) (reversing aconviction for

lack of evidence of intent). Its use together with

“endeavor,” see United States v. Russell, 255 U.S. 138, 143,

41 S.Ct. 260, 65 L.Ed. 553 (1921) (“endeavor”

“describes any effort or essay to accomplish the evil

purpose that the section was enacted to prevent”),

charges an intentional act. It is interchangeable with

the term “willful.” Seawright v. United States, 224 F.2d 482

(6th Cir.) (use of “willfully” in the indictment renders

the term “corruptly” unnecessary), cert. denied, 350 U.S.

838, 76 S.Ct. 76, 100 L.Ed. 738 (1955).

Read as a whole, the indictment charges defendant

with “communicating information over the tele-

phone” concerning the circumstances surrounding the

death of Louis Wallace, a matter being considered by

the Grand Jury “in an effort to influence and impede” a

grand juror. The phrase “corruptly did endeavor” must

be read in conjunction with the latter averment which

charges a deliberate and knowing act improperly to in-

fluence a grand juror. The plain and sensible meaning

of the language used fairly charges an exertion toward

an unlawful purpose.

The recital that the defendant sought “to influence

and impede” the juror “by communicating informa-

tion over the telephone about the matter being con-

sidered by the Grand Jury” is a sufficient allegation of

7a

knowledge. The objection that “the matter” is fatally

ambiguous ignores its obvious reference to the im-

mediately preceding clause which states that the juror

“was then a member of a Federal Grand Jury for the

Southern District of Alabama, considering the cir-

cumstances surrounding the death of Louis Wallace.”

Clearly, “the matter” referred to in the indictment is

the investigation of “the circumstances surrounding

the death of Louis Wallace.”

This situation is different from acase where the sub-

ject of alleged influence is a witness. In such a case,

knowledge of the relation between the witness and

judicial proceeding becomes significant and the indict-

ment must, correspondingly, be more _ specific.

Knowledge of the person’s status as a witness is a

critical element which must expressly be alleged.

Where a member of a Grand Jury is the subject of in-

fluence, however, an indictment charging that the

defendant corruptly endeavored to influence a grand

juror by communicating information about a matter

being considered by the Grand Jury sufficiently

charges knowledge.

In sum, the Haas indictment is not invalid for failure

to allege the requisite intent and knowledge. See United

States v. Zolli, 51 F.R.D. 522, 526 (E.D.N.Y. 1970) (“[I]t

can be fairly said that the use of the words ‘corruptly

endeavored’ does charge the defendants with commit-

ting an intentional and knowing act, and such use in the

indictment renders it sufficient.”). If the allegations in

8a

the indictment are true, defendant clearly sought to in-

terfere with an investigation of the Grand Jury con-

cerning the death of Louis Wallace. Although the terms

“intent” or “knowledge” or their derivatives are not

used, the language of the indictment demonstrates

adequately intent and knowledge.

The authorities cited by defendant do not require a

contrary decision. Pettibone v. United States, 148 U.S. 197,

13 S.Ct. 542, 37 L.Ed. 419 (1893), concerned a charge of

conspiracy to violate an injunction. The Court held the

indictment fatally defective because it “failed to allege

that the purpose of the conspiracy was to violate the in-

junction.” Absent the injunction, the acts alleged would

have been legal. An allegation of knowledge of the in-

junction was essential. In Genna v. United States, 293 F.

387 (7th Cir. 1923), the indictment was struck down

for failure to charge even by inference that the defend-

ant knew that the party with whom he communicated

was a witness. Here, the indictment does allege

knowledge of the Grand Jury connection.

B. Adequacy of Factual Averments

The skeletal nature of the factual averments in the

indictment, however, pose a more serious threat to its

validity. The indictment does contain the basic facts

necessary to apprise the defendant of the charge and to

prevent double jeopardy. It states the name of the

grand juror and the Grand Jury, specifies the matter

before the Grand Jury, relates the information com-

municated to that subject matter, and sets forth the

94

means of communication. In the unlikely event of a

subsequent indictment, defendant could surely rely

upon the entire record and even parol evidence to avoid

double jeopardy. See Bartell v. United States, 227 U.S. 427,

433, 33 S.Ct. 383, 57 L.Ed. 583 (1913); Russell v. United

States, 369 U.S. 749, 764, 82 S.Ct. 1038, 8 L.Ed.2d 240

(1962).

Defendant contends, however, that the indictment

fails to state what was communicated. While the bare

allegation in the indictment of the communication of

“information” is sufficient to withstand a motion to

dismiss, it does not appear to meet fully the

Government's obligation to permit defendant to

prepare a defense. In such a situation, a bill of par-

ticulars is an appropriate method of seeking such infor-

mation. The function of a bill of particulars is to “cure

omissions of details that might enable the defendant to

prepare his defense. . . .” Norris v. United States, 152 F.2d

808, 811 (Sth Cir.), cert. denied, 328 U.S. 850, 86S.Ct. 96,

15 L.Ed.2d 88 (1946).

We note that in this case the defendant has made a

timely motion for a bill of particulars. The district court

could more appropriately have remedied its legitimate

misgivings about the adequacy of information con-

tained in the indictment by granting this motion in-

stead of dismissing the case. While the grant of such a

motion lies within the sound discretion of the trial

court, Overton v. United States, 403 F.2d 444, 446 (Sth Cir.

1968), the need for further information in this case

10a

may be essential and the failure to grant the defend-

ant’s motion in such an instance may well be reversible

error. LInited States v. Crippen, 579 F.2d 340 (Sth Cir.

1978).

Defendants attach considerable significance to the

language of indictments upheld in three cases relied

upon by the United States, Knight v. United States, 310

F.2d 305 (Sth Cir. 1962); Holland v. United States, 245 F.2d

341 (Sth Cir. 1957); Parsons v. United States, 189 F.2d 252

(Sth Cir. 1951). While the indictments in these cases

were more amply worded than the present indictment,

the decisions are not authority on the issue presently

before the Court in view of the fact that the in-

dictments were upheld. These decisions nowhere pur-

port to establish a minimal standard for an18U.S.C.A.

§1503 indictment.

The district court erred in its dismissal of the indict-

ment.

REVERSED AND REMANDED.

eee

lla

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA

versus Criminal No. 77-36

THOMAS M. HAAS

ORDER

(Filed: September 12, 1977)

Defendant's motion to dismiss the indictment in this

cause for failure to adequately state an offense coming

to be heard on this 1st day of August, 1977, and it

appearing to the Court that said indictment fails to

allege the elements of “knowledge” and “intent,” both

of which are essential in the charging of an offense un-

der 18 U.S.C. §1503, and upon consideration of all fac-

tors and substantial precedential authority, it is hereby

ORDERED, ADJUDGED and DECRECD that:

Defendant’s motion to dismiss this indictment for

failure to adequately state an offense be and the same is

hereby GRANTED.

Having granted Defendant’s motion to dismiss for

failure to adequately state an offense, the Court

declines ruling on the other motions under advisement,

now moot.

12a

So ordered this 12th day of September, 1977.

!s|IDAN M. RUSSELL, JR.,

UNITED STATES DISTRICT

JUDGE

Exhibit “A”

(Number and Title Omitted)

The Grand Jury charges:

On or about the Sth day of March, 1977, in Mobile

County, within the Southern Division of the Southern

District of Alabama, THOMAS M. HAAS corruptly did

endeavor to influence and impede Sandra D. Haas, who

was then a member of a Federal Grand Jury for the

Southern District of Alabama, considering the cir-

cumstances surrounding the death of Louis Wallace, by

communicating information over the telephone about

the matter being considered by the Grand Jury in an ef-

fort to influence and impede Sandra D. Haas in the dis-

charge of her duty as aGrand Juror; in violation of Title

18, United States Code, Section 1503.

A TRUE BILL

FOREMAN, UNITED

STATES GRAND JURY

SOUTHERN DISTRICT OF

ALABAMA

13a

DANIEL L. BELL, II

SPECIAL ATTORNEY

UNITED STATES

DEPARTMENT OF

JUSTICE

Penalty: 5 years and/or $5,000

OPINION

(Number and Title Omitted)

On August 1, 1977, this Court, sitting in the

Southern District of Alabama, Southern Division, by

designation, heard motions in the case of United States v.

Thomas M. Haas, Criminal Action No. 77-36. The defen-

dant, Thomas Haas is charged with obstruction of

justice under 18 U.S.C. §1503. The motions, all made

by the defendant, included a motion to dismiss the in-

dictment for failure to adequately state an offense, a

motion to dismiss the indictment for vagueness and

overbreath of Title 18 U.S.C. §1503, as applied to the

instant indictment, a motion for a bill of particulars,

and a motion for a psychiatric examination of Sandra

D. Haas. The Court reserved ruling on all motions and

ordered the Mobile Mental Health Center to suomit

records to the Court for an in camera inspection.

The defendant’s mction to dismiss for failure to ade-

quately state an offense makes sixteen averments

which the Court chooses to categorize as alleging (1)

14a

vagueness of the indictment, (2) failure to allege

knowledge, and (3) failure to allege intent. It is the

defendant's contention that the indictment lacks ade-

quate factual data to enable the defendant to prepare a

defense or to enable the Court to decide whether acon-

viction is proper as a matter of law. The defendant also

contends that the indictment is insufficient for its

failure tocharge that the defendant had knowledge and

intent at the time he allegedly committed certain acts

which were in violation of 18 U.S.C. §1503.

Looking first to Rule 7 (c) of the Federal Rules of

Criminal Procedure, the Court notes the statutory re-

quirements of an indictment are that it be a“ plain, con-

cise, and definite written statement of the essential

facts constituting the offense charged.” The Supreme

Court, confronted with the question of sufficiency of

an indictment, has enunciated the following criteria for

evaluating the sufficiency of an indictment:

“... first whether the indictment ‘contains

the elements of the offense intended to be

charged, and sufficiently apprises the defend-

ant of what he must be prepared to meet,’ and

second, ‘in case any other proceedings are

taken against him for a similar offence,

whether the record shows with accuracy to

what extent he may plead a former acquittal

or conviction.’ ” Russell v. United States, 369 U.S.

749, 763-764 (1962). (Citations omitted.)

eee

San ESD.

15a

The Fifth Circuit has adopted this standard and quoted

it with further elaboration in United States v. Radetsky, 535

F.2d 556, 562 (Sth Cir. 1976):

“.,..And a purpose corollary to the first [re-

quirement as quoted above] is that the indict-

ment inform the court of the facts alleged, so

that it may decide whether they are sufficient

in law to support aconviction, if one should be

had. Furthermore, and of paramount impor-

tance, a sufficient indictment is required to

implement the Fifth Amendment guaranty

and make clear the charges so as to limit a

defendant’s jeopardy to offenses charged by a

group of his fellow citizens, and to avoid his

conviction on facts not found, or perhaps not

even presented to the grand jury that indicted

him.” (Citations omitted).

The indictment in this case charges a violation of 18

U.S.C. §1503 which provides in relevant parts that:

“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. . .,orinjures any

such grand or petit juror in his person or

property on account of any verdict or indict-

ment assented to by him, or on account of his

being or having been such a juror. . ., or cor-

ruptly or by threats or force, or by any

16a

threatening letter or communication, in-

fluences, obstructs, or impedes, or endeavors

to influence, obstruct, or impede, the due ad-

ministration of justice, shall be fined not more

than $5,000 or imprisoned not more than five

years, or both.”

The grand jury’s indictment in this case was filed on

April 12, 1977. It charged as follows:

“On or about the Sth day of March, 1977, in

Mobile County, within the Southern Division

of the Southern District of Alabama, Thomas

M. Haas corruptly did endeavor to influence

and impede Sandra D. Haas, who was then a

member of a Federal Grand Jury for the

Southern District of Alabama, considering the

circumstances surrounding the death of Louis

Wallace, by communicating information over

the telephone about the matter being con-

sidered by the Grand Jury in an effort to in-

fluence and impede Sandra D. Haas in the dis-

charge of her duty as a Grand Juror; in viola-

tion of Title 18, United States Code, Section

1503.

It is readily apparent that the Haas indictment tracks

the language of Section 1503. In an indictment on a

statute, it is generally sufficient that the indictment set

forth the offense in the words of the statute as long as

those words fully, directly, and expressly, without any

uncertainty or ambiguity, set forth all the elements

17a

necessary to constitute the offense intended to be

punished. See Linited States v. London, 550 F.2d 206, 210

(Sth Cir. 1977); Russell v. United States, supra, 369 U.S. at

765. And further, the Fifth Circuit has held on a ques-

tion of sufficiency the test is not whether the indict-

ment might have been drawn with greater certainty

and exactitude, but rather whether it set forth the

elements of the offense, charged and sufficiently ap-

prised the defendant of the charge to prepare for. Unit-

ed States v. Markham, 537 F.2d 187, 193 (Sth Cir. 1976)

cert. denied, U.S. ____ (1977). An indictment that

fails to allege each material element of an offense fails

to charge that offense. Lnited States v. London, 550 F.2d

206, 211 (Sth Cir. 1977).

The Fifth Circuit decision in United States v. Mekjian,

505 F.2d 1320 (Sth Cir. 1975) is an application of this

rule. In Mekjian, the defendant was convicted upon six-

teen counts of a sixty count indictment accusing him of

filing fraudulent medicare claims in violation of Title

18, U.S.C. Sec. 1001. The court reversed the conviction

for failure of the indictment to allege the essential ele-

ment of “willfulness”. The court considered the

necessity for the indictment’s alleging all the essential

elements to be an assurance that the defendant be

called to answer only a grand jury indictment; that the

defendant be protected against double jeopardy; and

that the defendant be apprised of the charge he must

meet in order to effectively challenge the government's

proof. In that case the government contended that the

allegations of “fraudulent statement”, “as he then

“4 a

knew he had not performed such services”, “knowing-

18a

ly”, and the facts as set forth in the several counts im-

plied that the acts were done “willfully”. In rejecting

this contention, the court commented:

“The similar import doctrine advances the

policy reflected in F.R.Cr.P. 7(c), against fine-

combing indictments for technical errors. But

the words of similar iraport must be clear

enough to insure that the indictment meets

the purposes it is intended to serve.” 505 F.2d

at 1324.

The Mekjian case, with its unequivocal requirement

that an indictment clearly allege the essential elements,

offers a point of departure for the consideration of the

Haas indictment. The question in the case sub judice

lacks the succinctness of that in Mekjian. There, the

statute under which the defendant was indicted used

the terminology “[w]hoever . . . knowingly and will-

fully falsifies ...”. The court held that because the

statute uses both “willfully” and “knowingly” in defin-

ing the offense and because each encompasses a

different element of the requisite mens rea and relies on

different proof, a separate allegation of “willfulness”

must appear in the indictment. Section 1503 is couched

in terms of “{[w]hoever corruptly, or by threats or force,

or by any threatening letter or communication,

endeavors to influence, intimidate, or impede. . .”. The

Haas indictment, drafted in statutory language, con-

tains no allegations of “willfulness” or “knowledge”. It

is the defendant's contention that both are essential

ee

19a

elements required in a valid indictment under section

1503 and that this indictment must fail for their

absence.

The essential nature of the defendant’s knowledge in

a charge of obstruction of justice was recognized in Pet-

tibone v. United States, 148 U.S. 197, 206 (1893):

“It seems clear that an indictment against a

person for corruptly or by threats or force

endeavoring to influence, intimidate, or im-

pede a witness or officer in a court of the Unit-

ed States in the discharge of his duty, must

charge knowledge or notice or set out facts

that show knowledge or notice on the part of

the accused that the witness or officer was

such.”

As an aside, it should be noted that this Court has no

reservation in broadening the rule of Pettibone which

speaks to an indictment for’ corruptly. . . endeavoring

to influence .. . a witness or officer in a court of the

United States” to include such an endeavor as made toa

grand juror. All three categories are included in the

current obstruction of justice statute and this Court

can see no reason for a distinction.

A recent decision by the Ninth Circuit in United States

v. Ryan, 455 F.2d 728 (9th Cir. 1972) reinforces the

viability of Pettibone. In Ryan, the defendant's conviction

by a jury in the district court for obstruction of justice

20a

under 18 U.S.C. §1503 was reversed and remanded for

lack of sufficient evidence of intent. The court, con-

fronted with a situation in which the alleged acts of

obstruction were committed prior to a time when the

defendant may have had knowledge of a grand jury in-

vestigation, held:

“Specific intent to impede the administration

of justice is an essential element of the

offense. Pettibone v. United States, 148 U.S.

197, 13 S.Ct. 542, 37 L.Ed. 419 (1893).” 455

F.2d at 734.

The Court finds that judicial policy compels the in-

clusion of knowledge and intent as essential elements

in a charge under section 1503 although statutory

language fails to expressly require it. It is the design of

the statute to provide a judicial environment free of in-

tentional and knowing efforts to obstruct its operation.

Punishment of inadvertent or innocent acts serves no

purpose in maintaining this environment; therefore,

the requirements of “knowledge” and “intent” should

necessarily be included as essential elements in the

charging of an offense for obstruction of justice.

With this recognition, the Court is confronted with

the question of whether these elements have been suf-

ficiently alleged in the Haas indictment. It is readily ap-

parent that “willfully” and “knowingly” do not appear

in the instant indictment. The government contends

21a

that the indictment is nonetheless valid and cites four

Fifth Circuit cases in support of its argument.

In Knight v. United States, 310 F.2d 305 (Sth Cir. 1962)

the defendant was convicted on one of four counts in

an indictment charging violations of 18 U.S.C. §1503.

That count of the Knight indictment contained the

following language:

“ ‘On or about the 22nd day of March, 1961, in

the Macon Division of the Middle District of

Georgia, within the jurisdiction of this Court,

said James Terrell Knight did unlawfully, will-

fully, knowingly, and corruptly endeavor to

influence, obstruct and impede the due ad-

ministration of justice ... James Terrell

Knight knowing that the said Lawrence L.

Knight was a witness in said criminal case

then pending against him... did. . . unlaw-

fully, willfully, knowingly and corruptly

offer and agree to pay to one Betty Frances

Pope the sum of $100.00. . .as aninducement

to the said Betty Frances Pope to endeavor to

influence ... the said Lawrence L. Knight

... ” 310 F.2d 306.

The court upheld the indictment which was attacked

on the ground of failure to allege a purpose or intention

to obstruct the administration of justice.

22a

In considering the Knight case for guidance in the case

sub judice, this Court notes that the indictment in that

case does not contain a flaw similar to that alleged to

exist in the Haas indictment. The Knight indictment

charges that the defendant “unlawfully, willfully,

knowingly and corruptly endeavored to influence,

obstruct, and impede the due administration of justice

...”. First, it should be noted that the alleged endeavor

was charged to be “unlawful,” “willful,” and“knowing”

as well as “corrupt”. These allegations, if made in the

Haas indictment, would have unquestionably satisfied

the requirement that the indictment include the essen--

tial elements of knowledge and intent. Secondly, and a

bit more complex, is the recognition that the import of

the Knight decision goes to a violation under §1503 that

is not alleged in the Haas indictment. The Knight in-

dictment was brought under the third clause of section

1503 which speaks to endeavors “to influence,

obstruct, or impede the due administration of justice.”

Haas was indicted under the first clause of section 1503

for an alleged endeavor to influence and impede a

member of a grand jury. The distinction in the offense

under each of these two clauses results in a correspond-

ing variance in the essential elements required to be

charged. In the indictment for obstruction of the ad-

ministration of justice, the court in Knight did not con-

sider an allegation of specific intent to obstruct the

administration of justice necessary, but it neverthe-

less held that:

“.. . There is no question but that there must

exist a specific intent in order to violate §1503.

23a

Pettibone v. United States (1893), 148 U.S.

197, 13 S.Ct. 542, 37 L.Ed. 419. This specific

intent must be to do some act or acts which

tend to impede or influence, obstruct, or im-

pede the due administration of justice.”

An examination of the Knight indictment reveals the

requisite allegation of intent to commit the alleged act

which constituted obstruction of the administration of

justice. Upon such a consideration, this Court finds

that Knight case to be a reinforcement of the defend-

ant’s position that an indictment under section 1503

must charge the defendant with a willful and knowing

act.

In Holland v. United States, 245 F.2d 341 (Sth Cir. 1957),

a second case cited by the government, the court denied

the defendant-appellant’s claim that failure to allege a

purpose on the part of the defendant to obstruct the ad-

ministration of justice rendered the indictment under

section 1503 invalid. The indictment in Holland provid-

ed as follows:

“That on or about the 31st day of October,

1955, at Jacksonville, in the Southern District

of Floridaj HORACE WORTH HOLLAND,

hereinafter called the defendant, did corruptly

endeavor to influence one Arlie C. Holland,

who, as the defendant then and there well

knew, was then a member of a petit jury panel

that had been summoned for jury duty in the

United States District Court for the Southern

——— eo

24a

District of Florida, Jacksonville Division, to

try, among other cases, the case of the United

States of America versus Edward W.

Crockett, Jr., and others, Number 9215 -

Criminal - J, in the discharge of his, the said

Arlie C. Holland’s, duty as such juror, that is

to say: at said time and place the defendant

communicated by telephone with said Arlie C.

Holland a statement to the effect that he, the

defendant, understood that said Arlie C.

Holland was a member of the panel from

which would be drawn a jury to try one

Edward W. Crockett, Jr., and that any con-

sideration for the said Edward W. Crockett,

Jr., coming from such jury would be ap-

preciated; in violation of Title 18, United

States Code, Section 1503.”

Since the indictment charged an offense of endeavor-

ing to influence a witness under the first clause of sec-

tion 1503, the allegation of a “purpose to obstruct the

due administration of justice” from the third clause of

section 1503 is clearly unnecessary. With this distinc-

tion made, the Holland case cannot be taken to disavow

the requirement of showing intent under the first

clause of section 1503. Much to the contrary, the in-

dictment alleges specific facts to the effect that the

defendant knew the person he is alleged to have en-

deavored to influence was amember of a petit jury pan-

el at the time of such endeavor and further, that he

made a statement to that effect at the time he en-

deavored to so influence. Here again, the Court is con-

fronted with a case that does not embrace the issue of

25a

the instant case; yet, it lends support to the defend-

ant’s contention by the presence of the essential

elements, knowledge and intent, in the indictment.

The government has cited Beale v. United States, 327

F.2d 227 (Sth Cir. 1964) for the proposition that an in-

dictment under section 1503 charging the defendant

simply with unlawfully and corruptly endeavoring to

impede petit jurors was held legally sufficient. An ex-

amination of acertified copy of the indictment from the

Beale case, offered by the defendant as an exhibit to the

hearing on the motion, reveals that each of the four-

teen counts alleging violations of section 1503 charged

the defendant with an act wherein he did “unlawfully,

knowingly, and corruptly endeavor to impede the ad-

ministration of justice”. Although the indictment is ab-

sent any reference to “intent”, it clearly contains

allegations that the defendant acted with knowledge.

The opinion in Parsons v. United States, 189 F.2d 252,

(Sth Cir. 1951) provides in part as follows:

“The attack upon the indictment for failing to

allege that the defendant knew that the per-

son he was charged with endeavoring to cor-

ruptly influence was, or was to be, a witness is

completely hypercritical and without sub-

stance. The indictment, in the exact language

of the statute, plainly and by necessary im-

plication, precisely charges the defendant

with the crime denounced thereby.” 189 F.2d

at 253.

- 26a

The indictment in that case charged that the defend-

ant did “willfully, knowingly, unlawfully, and corruptly

endeavor to influence Dennis Herschel Greene, a

witness,” by both threats and an offer of money.

Although the indictment did not specifically allege facts

that set out the defendant knew Greene was a witness,

it charged that the defendant acted “knowingly” thus

serving the same end.

Reviewing the government's authority, the Court

finds that with the exception of an allegation of intent

in the Beale indictment, each case, regardless of its

holding is based on an indictment that alleges the

defendant “willfully” and “knowingly” committed an

act prohibited under section 1503. This realization

further strengthens the Court's earlier conclusion that

“knowledge” and “intent” are essential elements of a

valid indictment under section 1503. As noted earlier,

the present indictment contains no such allegations

and in the absence of authority to establish the validity

of such an indictment under section 1503, the govern-

ment is relegated to the argument that the similar im-

port of “corruptly” would include the requisite “will-

fulness” and “knowledge”. The test is whether the

words of similar import are clear enough to insure the

indictment meets the purpose it is intended to serve.

United States v. Mekjian, supra at 1324.

In at least one case — United States v. Zolli, 51 F.R.D.

522 (E.D. N.Y. 1970) — the court has held that the use

of the words “corruptly endeavored” charged the

defendant with committing an intentional and know-

ing act and that such use in the indictment renders it

eee

27a

sufficient. In reaching its conclusion, the court made

the following statement:

“... The word ‘corruptly’ has been held to

mean with ‘improper motive’. Martin v. Unit-

ed States, 166 F.2d 76 (4th Cir. 1948). The

word ‘endeavor’ is defined by Black: ‘To exert

physical and intellectual strength toward the

attainment of an object; a systematic or con-

tinuous effort’. Black’s Law Dictionary 621

(4th Ed. 1957),” 51 F.R.D. at 526.

From these definitions the court concluded the indict-

ment was valid absent specific allegations of “knowl-

edge” or “intent”. This Court, however, is not eager to

indulge in so simple a word game in view of the grave

consequences that accrue to the defendant charged un-

der an insufficient indictment.

It has been held that where a statute is silent on mens

rea and criminal intent is an element of the crime, the

indictment failing to allege such intent may be defec-

tive unless words actually appearing therein have

historical meaning, either in statutory history or in

common law, which might signal an allegation of mens

rea. United States v. Morrison, 536 F.2d 286 (9th Cir. 1976).

In the Morrison case, the defendant was charged in stat-

utory language with misappropriating less than $100

in postal funds in violation of 18 U.S.C. §1711. The

crime required a showing of specific intent although

the statute is silent on mens rea. After exploring the

common law meaning of the phraseology used in the

28a

indictment, the Ninth Circuit Court of Appeals vacat-

ed the lower court’s denial of the defendant’s motion

for acquittal with a finding that an allegation in the in-

dictment that the defendant “did convert . . . without

authority by law” did not allege the requisite intent.

The decision here is based on more than a pronounce-

ment of the court and it commands a greater assurance

of affording to the defendant the safeguards intended

by the grand jury system.

In the instant case, the Court has attempted to find

definitive language on the allegation of “corruptly” as

to its common law relationship with the essential

elements of section 1503. The courts have used various

definitions of “corruptly”. It has been held to mean an

“evil or wicked purpose”, United States v. Ryan, supra at

734; an “improper motive”, Martin v. United States, 166

F.2d 76 (4th Cir. 1948); and by implication, an “im-

proper purpose”, Holland v. United States, supra. Even so,

the search has produced noconvincing authority to the

effect that the allegation “corruptly endeavored” en-

compasses the requirement of a specific intent to com-

mit the act and a knowledge of the circumstances that

make the act a violation of the statute.

This Court does not seek to constrain the import of

statutory language under section 1503 by holding

“corruptly endeavor” an insufficient allegation of the

essential elements of knowledge and intent; yet, under

the facts in this case; in the absence of more definitive

authority; and upon a realization that the Court’s in-

struction to the jury on finding the missing element

nN na a See ante ta vl 2.

a a

29a

will not cure an omission of an essential element from

the indictment, United States v. Mekjian, supra at 1325,

the Court is compelled to grant the defendant’s motion

to dismiss.

Having granted the defendant’s motion to dismiss,

the Court declines ruling on the other motions under

advisement, now moot.

An order in accordance with this opinion may be sub-

mitted to the Court within five days.

Is} DAN M. RUSSELL, JR.

UNITED STATES DISTRICT

JUDGE

DATED Sept. 7, 1977

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

Edward W. Wadsworth

Clerk

December 26, 1978

TO ALL PARTIES LISTED BELOW:

NO. 77-3273 — UNITED STATES OF AMERICA v.

THOMAS M. HAAS

30a

Dear Counsel:

This is to advise that an order has this day been entered

denying the petition for rehearing, and no member of

the panel nor Judge in regular active service on the

Court having requested that the Court be polled on

rehearing en banc (Rule 35, Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 16) the petition for

rehearing en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH,

Clerk

Is) SALLY HAYWARD

Deputy Clerk

cc: Ms. Miriam R. Eisenstein

Mr. Frank Allen, Jr.

Mr. Barry Hess

Mr. Chris Galanos

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