Obstruction of Justice: An Overview of Some of the Federal Statutes That Prohibit Interference with Judicial, Executive, or Legislative Activities

Congressional research reportApr 17, 2014

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Obstruction of Justice: An Overview

of Some of the Federal Statutes That

Prohibit Interference with Judicial,

Executive, or Legislative Activities

(name redacted)

Senior Specialist in American Public Law

April 17, 2014

Congressional Research Service

7-....

www.crs.gov

RL34303

Obstruction of Justice

Summary

Obstruction of justice is the impediment of governmental activities. There are a host of federal

criminal laws that prohibit obstructions of justice. The six most general outlaw obstruction of

judicial proceedings (18 U.S.C. 1503), witness tampering (18 U.S.C. 1512), witness retaliation

(18 U.S.C. 1513), obstruction of congressional or administrative proceedings (18 U.S.C. 1505),

conspiracy to defraud the United States (18 U.S.C. 371), and contempt (a creature of statute, rule

and common law).

The laws that supplement, and sometimes mirror, the basic six tend to proscribe a particular

means of obstruction. Some, like the perjury and false statement statutes, condemn obstruction by

lies and deception. Others, like the bribery, mail fraud, and wire fraud statutes, prohibit

obstruction by corruption of public employees or officials. Some outlaw the use of violence as a

means of obstruction. Still others ban the destruction of evidence. A few simply punish “tipping

off” those who are the targets of an investigation.

Many of these offenses may also provide the basis for racketeering and money laundering

prosecutions, and each provides the basis for criminal prosecution of anyone who aids and abets

in or conspires for their commission.

Moreover, regardless of the offense for which an individual is convicted, his sentence may be

enhanced as a consequence of any obstruction of justice for which he is responsible, if committed

during the course of the investigation, prosecution, or sentencing for the offense of his conviction.

The enhancement may result in an increase in his term of imprisonment by as much as four years.

This report is available in abbreviated form—without footnotes, quotations, or citations—as CRS

Report RS22783, Obstruction of Justice: An Abridged Overview of Related Federal Criminal

Laws. Excerpted portions of this report are available as follows: CRS Report RL34304,

Obstruction of Congress: A Brief Overview of Federal Law Relating to Interference with

Congressional Activities; CRS Report RS22784, Obstruction of Congress: An Abridged Overview

of Federal Criminal Laws Relating to Interference with Congressional Activities; CRS Report 98808, Perjury Under Federal Law: A Brief Overview; and CRS Report 98-807, Perjury Under

Federal Law: A Sketch of the Elements. All by (name redacted).

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Contents

Introduction...................................................................................................................................... 1

General Obstruction Prohibitions .................................................................................................... 1

Witness Tampering (18 U.S.C. 1512) .............................................................................................. 1

Obstruction by Violence (18 U.S.C. 1512(a)) ........................................................................... 2

Auxiliary Offenses and Liability ......................................................................................... 5

Obstruction by Intimidation, Threats, Persuasion, or Deception (18 U.S.C. 1512(b) ............... 9

Obstruction by Destruction of Evidence (18 U.S.C. 1512(c)) ................................................. 13

Obstruction by Harassment (18 U.S.C. 1512(d)) .................................................................... 15

Obstructing Federal Courts (18 U.S.C. 1503)................................................................................ 17

The Omnibus Provision ........................................................................................................... 17

Interfering with Jurors or Judicial Officials (18 U.S.C. 1503) ................................................ 20

Auxiliary Offenses and Liability ............................................................................................. 22

Obstructing Congressional or Administrative Proceedings (18 U.S.C. 1505) ............................... 23

Retaliating Against Federal Witnesses (18 U.S.C. 1513) .............................................................. 26

Conspiracy to Obstruct (18 U.S.C. 371) ........................................................................................ 28

Conspiracy to Defraud ............................................................................................................. 28

Conspiracy to Commit a Substantive Offense ......................................................................... 29

Contempt........................................................................................................................................ 30

Contempt of Court ................................................................................................................... 30

Criminal Contempt ............................................................................................................ 31

Civil Contempt .................................................................................................................. 37

Contempt of Congress ............................................................................................................. 38

Statutory Contempt of Congress ....................................................................................... 38

Inherent Contempt of Congress......................................................................................... 43

Contempt of Court at Congressional Behest ..................................................................... 43

Obstruction of Justice by Violence or Threat................................................................................. 44

Violence and Threats Against Officials, Former Officials, and Their Families

(18 U.S.C. 115)..................................................................................................................... 44

Violence and Threats Against Federal Officials on Account of the Performance of

Their Duties .......................................................................................................................... 47

Obstruction of Justice by Bribery .................................................................................................. 48

Bribery of Jurors, Public Officers and Witnesses (18 U.S.C. 201).......................................... 48

Obstruction by Bribery Relating to Federally Funded Programs (18 U.S.C. 666) .................. 51

Obstruction by Mail or Wire Fraud (18 U.S.C. 1341, 1343, 1346) ......................................... 55

Obstruction by Extortion Under Color of Official Right (18 U.S.C. 1951) ............................ 58

Obstruction of Investigations by Bribery (18 U.S.C. 1510(a))................................................ 59

Obstruction of Justice by Destruction of Evidence........................................................................ 60

Obstruction of Investigations by Destruction of Evidence (18 U.S.C. 1519) ......................... 60

Destruction of Corporate Audit Records (18 U.S.C. 1520) ..................................................... 64

Destruction of Property to Prevent Seizure (18 U.S.C. 2232(a)) ............................................ 64

Obstruction of Justice by Deception .............................................................................................. 65

Perjury in a Judicial Context (18 U.S.C. 1623) ............................................................................. 65

Perjury Generally (18 U.S.C. 1621) .............................................................................................. 71

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Subornation of Perjury (18 U.S.C. 1622) ...................................................................................... 73

False Statements (18 U.S.C. 1001) ................................................................................................ 74

Obstruction of Justice by “Tip-Off” ........................................................................................ 78

Specific Obstructions ..................................................................................................................... 79

Influencing Jurors by Writing (18 U.S.C. 1504) ..................................................................... 80

Obstruction of Justice as a Sentencing Factor (U.S.S.G. §3C1.1) ................................................. 81

Contacts

Author Contact Information........................................................................................................... 85

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Introduction

Obstruction of justice is the frustration of governmental purposes by violence, corruption,

destruction of evidence, or deceit.1 It is a federal crime. In fact, federal obstruction of justice laws

are legion; too many for even passing reference to all of them in a single report.2 This is a brief

description of some of the more prominent.3

General Obstruction Prohibitions

The general federal obstruction of justice provisions are six: 18 U.S.C. 1512 (tampering with

federal witnesses), 1513 (retaliating against federal witnesses), 1503 (obstruction of pending

federal court proceedings), 1505 (obstruction of pending congressional or federal administrative

proceedings), 371 (conspiracy), and contempt.4 In addition to these, there are a host of other

statutes that penalize obstruction by violence, corruption, destruction of evidence, or deceit.

Witness Tampering (18 U.S.C. 1512)

Section 1512 applies to the obstruction of federal proceedings—judicial, congressional, or

executive.5 It consists of four somewhat overlapping crimes: use of force or the threat of the use

of force to prevent the production of evidence (18 U.S.C. 1512(a)); use of deception or corruption

or intimidation to prevent the production of evidence (18 U.S.C. 1512(b)); destruction or

concealment of evidence or attempts to do so (18 U.S.C. 1512(c)); and witness harassment to

prevent the production of evidence (18 U.S.C. 1512(d)). The offenses have similar, but not

identical, objectives and distinctive elements of knowledge and intent. Section 1512 also contains

freestanding provisions that apply to one or more of the offenses within the section. These deal

with affirmative defenses (18 U.S.C. 1512(e)); jurisdictional issues (18 U.S.C. 1512(f),(g),(h));

venue (18 U.S.C. 1512(i)); sentencing (18 U.S.C. 1512(j)); and conspiracy (18 U.S.C. 1512(k)).

Black’s describes obstruction of justice simply as any “interference with the orderly administration of law and

justice,” BLACK’S LAW DICTIONARY, 1183 (9th ed. 2009).

For this reason, theft and embezzlement statutes are beyond the scope of this report, even though they are often

designed to prevent the frustration of government programs.

Portions of this report draw upon two earlier documents, CRS Rept. 98-808, Perjury Under Federal Law: A Brief

Overview, and CRS Rept. 98-832, Obstruction of Justice Under Federal Law: A Review of Some of the Elements.

Contempt is a creature of statute and common law described in, but not limited to, 18 U.S.C. 401, 402; 2 U.S.C. 192.

18 U.S.C. 1515(a)(1) (“As used in sections 1512 and 1513 of this title and in this section—(1) the term “official

proceeding” means—(A) a proceeding before a judge or court of the United States, a United States magistrate judge, a

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

States Court of Federal Claims, or a Federal grand jury; (B) a proceeding before the Congress; (C) a proceeding before

a Federal Government agency which is authorized by law; or (D) a proceeding involving the business of insurance

whose activities affect interstate commerce before any insurance regulatory official or agency or any agent or examiner

appointed by such official or agency to examine the affairs of any person engaged in the business of insurance whose

activities affect interstate commerce”). Federal prosecutions for obstructing state insurance proceedings appear to have

been infrequent. For additional discussion of 18 U.S.C. 1512 see Twenty-Eighth Survey of White Collar Crime:

Obstruction of Justice, 50 AMERICAN CRIMINAL LAW REVIEW 1299 (2013).

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Obstruction by Violence (18 U.S.C. 1512(a))

Subsection 1512(a) has slightly different elements depending upon whether the offense involves a

killing or attempted killing—18 U.S.C. 1512(a)(1)—or some other use of physical force or a

threat—18 U.S.C. 1512(a)(2).6 In essence, they condemn the use of violence to prevent a witness

from testifying, producing evidence for an investigation, or bringing a crime to the attention of

authorities, and they set their penalties according to whether the obstructive violence used is a

homicide, an assault, or a threat. In more exact terms, they declare:

1512(a)(1)

1512(a)(2)

I. Whoever

II. a. kills or

II. a. uses physical force,

b. attempts to kill

b. attempts to use physical force,

c. uses the threat of physical force, or

d. attempts to use the threat of physical force

III. with the intent to

a. prevent attendance or testimony at an official

proceeding (i.e., a federal judicial, legislative or

administrative proceeding)

a. influence, delay, or prevent testimony at an official

proceeding

b. prevent the production of an item at an official

proceeding

b. cause or induce another to withhold testimony or an

item at an official proceeding

c. prevent the communication to U.S. law

enforcement authorities of a federal offense or a

violation of probation, parole, or supervised

release.

c. hinder, delay or prevent the communication to U.S.

law enforcement authorities of a federal offense or a

violation of probation, parole, or supervised release

d. cause or induce another to alter, conceal or destroy

an item with the intent to make unavailable

e. cause or induce another to evade process

f. cause or induce another to fail to comply with process

IV. shall be punished under §1512(a)(3)

Unless countermanded by subsection 1512(j), subsection 1512(a)(3) provides the sanctions for

both subsection 1512(a)(1) and (a)(2). Homicide is punished as provided in 18 U.S.C. 1111 and

1112, that is, murder in the first degree is punishable by death or imprisonment for life; murder in

the second degree is punishable by imprisonment for any term of years or for life; voluntary

manslaughter is punishable by imprisonment for not more than 15 years and involuntary

manslaughter by imprisonment for not more than 8 years.7 Attempted murder, assault, and

Here and throughout this report the outline of the statute’s elements uses the language of the statute wherever

possible.

18 U.S.C. 1512(a)(3)(A).

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attempted assault are punishable by imprisonment for not more than 30 years;8 and a threat to

assault punishable by imprisonment for not more than 20 years.9

Subsection 1512(j) provides that the maximum term of imprisonment for subsection 1512(a)

offenses may be increased to match the maximum term of any offense involved in an obstructed

criminal trial.10

To secure a conviction under the communication to a law enforcement officer offense, “the

Government must prove (1) a killing or attempted killing, (2) committed with a particular intent,

namely, an intent (a) to ‘prevent’ a ‘communication’ (b) about the ‘the commission or possible

commission of a federal offense’ (c) to a federal ‘law enforcement officer or judge.’”11 Attempt

requires proof that the defendant intended to commit the killing and that he took a substantial step

in furtherance of that intent.12

There are two statutory defenses to charges under §1512. One covers legitimate legal advice and

related services, 18 U.S.C. 1515(c),13 and is intended for use in connection with the corrupt

persuasion offenses proscribed elsewhere in §1512 rather than the violence offenses of subsection

1512(a). The other statutory defense is found in subsection 1512(e) and creates an affirmative

defense when an individual engages only in conduct that is lawful in order to induce another to

testify truthfully. The defense would appear to be of limited use in the face of a charge of the

obstructing use or threat of physical force in violation of subsection 1512(a).14

Subsections 1512(f) and 1512(g) seek to foreclose a cramped construction of the various offenses

proscribed in §1512. Subsection 1512(f) declares that the evidence that is the object of the

obstruction need not be admissible and that the obstructed proceedings need not be either pending

or imminent.15 Whether the defendant’s misconduct must be shown to have been taken in

anticipation of such proceedings is a more difficult question.

18 U.S.C. 1512(a)(3)(B).

18 U.S.C. 1512(a)(3)(C). Other than the murder offenses, violations of subsection 1512(a) are also punishable by a

fine of not more than $250,000, 18 U.S.C. 1512(a)(3), 1111, 1112, 3571.

“If the offense under this section occurs in connection with a trial of a criminal case, the maximum term of

imprisonment which may be imposed for the offense shall be the higher of that otherwise provided by law or the

maximum term that could have been imposed for any offense charged in such case,” 18 U.S.C. 1512(j).

Fowler v. United States, 131 S.Ct. 2045, 2049 (2011).

United States v. Irving, 665 F.3d 1184, 1195 (10th Cir. 2011); see generally CRS Rept. R42001, Attempt: An

Overview of Federal Criminal Law.

“This chapter does not prohibit or punish the providing of lawful, bona fide, legal representation services in

connection with or anticipation of an official proceeding,” 18 U.S.C. 1512(c).

The Sarbanes-Oxley Act redesignated subsection 1512(d)(2000 ed.) as subsection 1512(e): “In a prosecution for an

offense under this section, it is an affirmative defense, as to which the defendant has the burden of proof by a

preponderance of the evidence, that the conduct consisted solely of lawful conduct and that the defendant’s sole

intention was to encourage, induce, or cause the other person to testify truthfully,” 18 U.S.C. 1512(e). See United

States v. Lowery, 135 F.3d 957, 960 (5th Cir. 1998)(reversing the defendant’s obstruction of justice conviction for the

trial court’s failure to permit evidence substantiating the defense); United States v. Thompson, 76 F.2d 442 (2d Cir.

1996)(upholding the constitutionality of the defense in the face of a challenge that it unconstitutionally shifted the

burden of proof to the accused); United States v. Arias, 253 F.3d 453, 457 n.4 (9th Cir. 2001)(“This section was

apparently intended to exempt judicial officers who lawfully remind witnesses or defendants of their oath to give true

testimony, although the statutory language itself is not so limited. See U.S. v. Johnson, 968 F.2d 208, 213 (2d Cir.

1992)(quoting legislative history)” ).

See also United States v. Tyler, 732 F.3d 241, 252 (3d Cir. 2013)(“Nevertheless, just as Fowler specifically noted

(continued...)

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The Supreme Court rejected the contention that language like that found in subsection 1512(f)

(making §1512 applicable to obstructions committed before any official proceedings were

convened) absolved the government of having to prove that the obstruction was committed with

an eye to possible official proceedings.16 That case, the Arthur Andersen case, however, involved

the construction of subsection 1512(b) which requires that the defendant be shown to have

“knowingly” engaged in the obstructing conduct. Subsection 1512(a) has no such explicit

“knowing” element. Yet, the government must still show that the offender’s violent act was

committed with the intent to prevent testimony in a federal official proceeding.17

By virtue of subsection 1512(g), “where the defendant kills a person with an intent to prevent

communication with law enforcement officers generally, that intent includes an intent to prevent

communications with federal law enforcement officers only if it is reasonably likely under the

circumstances that (in the absence of the killing) at least one of the relevant communications

would have been made to a federal officer.”18

As a consequence of subsection 1512(h), murder, attempted murder, or the use or threat of

physical force—committed overseas to prevent the appearance or testimony of a witness or the

production of evidence in federal proceedings in this country or to prevent a witness from

informing authorities of the commission of a federal offense or a federal parole, probation,

supervised release violation—is a federal crime outlawed in subsection 1512(a) that may be

prosecuted in this country.19

As a general rule, the courts will assume that Congress intends a statute to apply only within the

United States and to be applied consistent with the principles of international law—unless a

contrary intent is obvious.20 Subsection 1512(h) supplies the obvious contrary intent. Since a

(...continued)

that §1512 reaches conduct that occurs before the victim had any communications with law enforcement officers, here,

too, we emphasize that the government need not prove that a federal investigation was in progress at the time the

defendant committed a witness-tampering offense”), citing, Fowler v. United States, 131 S.Ct. 2045, 2049(2011); and

United States v. Ramos-Cruz, 667 F.3d 487, 498 (4th Cir. 2012).

Arthur Anderson, LLP v. United States, 544 U.S. 696, 707-8 (2005).

United States v. Tyler, 732 F.3d 241, 248, 249-50 (3d Cir. 2013)(internal citations omitted)(“The Supreme Court’s

decision in Arthur Andersen required that for the government to satisfy the VWPA’s witness intimidation section’s

‘official proceeding’ requirement, §1512(b)(2)(A and (B), it must prove a ‘nexus’ between the defendant’s conduct and

a foreseeable particular proceeding. Specifically, the government must prove that the defendant sought to interfere with

evidence or a witness and acted in contemplation of a particular official proceeding. If the defendant lacks knowledge

that his actions are likely to affect the official proceeding, then he lacks the requisite intent to obstruct. The ‘“official

proceeding’ language is also contained in §1512(a)(1)(A), (b)1), and (b), the provisions under which Tyler was

convicted.... [I]n any prosecution brought under a §1512 provision charging obstruction of justice involving an ‘official

proceeding,’ the government is required to prove a nexus between the defendant’s conduct and a particular official

proceeding before a judge or court of the United States that the defendant contemplated. This holding is in line with our

sister Circuits that have all concluded that the nexus requirement applies to other §1512 provisions qualified by an

official proceeding”), citing, United States v. Kaplan, 490 F.3d 110, 126 (2d Cir. 2007)(§1512(b)(1)); United States v.

Matthews, 505 F.3d 698, 707-708 (7th Cir. 2007)(§1512(c)(1)); United States v. Bennett, 664 F.3d 997, 1013 (5th Cir.

2011)(§1512(c)(2)); United States v. Fiske, 640 F.3d 1288, 1292 (11th Cir. 2011)(same); United States v. Phillips, 583

F.3d 1261, 1263-1264 (10th Cir. 2010)(same); and United States v. Carson, 560 F.3d 566, 584 (6th Cir. 2009)(same).

Fowler v. United States, 131 S.Ct. 2045, 2052 (2011); United States v. Tyler, 732 F.3d 241, 248 (3d Cir. 2013);

United States v. Smith, 723 F.3d 510, 514 (4th Cir. 2013).

18 U.S.C. 1512(h)(“There is extraterritorial Federal jurisdiction over an offense under this section”); see e.g., United

States v. Fisher, 494 F.3d 5, 8-9 (1st Cir. 2007)(contemplated murder in Canada of a federal witness).

EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991)(“It is a long-standing principle of American law that

legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the

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contrary intent may be shown from the nature of the offense, the result would likely be the same

in the absence of subsection 1512(h). In the case of an overseas obstruction of federal

proceedings, the courts could be expected to discern a congressional intent to confer

extraterritorial jurisdiction21 and find such an application compatible with the principles of

international law.22 The existence of extraterritorial jurisdiction is one thing; the exercise of such

jurisdiction is another. Federal investigation and prosecution of any crime committed overseas

generally presents a wide range of diplomatic, legal, and practical challenges.23

Subsection 1512(i) states that violations of §1512 or §1503 may be prosecuted in any district

where the obstruction occurs or where the obstructed proceeding occurs or is to occur. In the case

of obstructions committed in this country, the Constitution may limit the trial in the district of the

obstructed proceedings to instances when a conduct element of the obstruction has occurred

there.24

Auxiliary Offenses and Liability

Subsection 1512(k) makes conspiracy to violate §1512 a separate offense subject to the same

penalties as the underlying offense.25 The section serves as an alternative to a prosecution under

18 U.S.C. 371 that outlaws conspiracy to violate any federal criminal statute.26 Section 371 is

(...continued)

United States”); Murray v. the Schooner Charming Betsy, 2 Cranch 64, 118 (6 U.S. 34, 67)(1804)(“[A]n act of

Congress ought never to be construed to violate the law of nations, if any other possible construction remains”);

Weinberger v. Rossi, 456 U.S. 25, 32 (1982).

United States v. Bowman, 260 U.S. 94, 98 (1922)(“But the same rule of interpretation [of purely domestic

application] should not be applied to criminal statutes which are, as a class, not logically dependent on their locality for

the government’s jurisdiction, but are enacted because of the right of the government to defend itself against

obstruction, or fraud wherever perpetrated. . .. We cannot suppose that when Congress enacted the [fraud] statute or

amended it, it did not have in mind that a wide field for such fraud upon the government was in private and public

vessels of the United States on the high seas and in foreign ports and beyond the land jurisdiction of the United States,

and therefore intend to include them in the section”); Ford v. United States, 273 U,.S. 593, 623 (1927) (“a man who

outside of a country willfully puts in motion a force to take effect in it is answerable at the place where the evil is

done”).

Historically, the courts have found compatibility with international law where a case falls within one of the five

principles upon which geographical jurisdiction may be predicated. Either of two such principles would appear to cover

the overseas application of Section 1512. The territorial principle holds that a country may apply its laws to misconduct

that has a substantial impact within its borders, United States v. Neil, 312 F.3d 419, 422 (9th Cir. 2002); the protective

principle holds that a country may apply its laws to protect the integrity of governmental functions, United States v.

Yousef, 327 F.3d 56, 121 (2d Cir. 2003). See also RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE

UNITED STATES, §402 & 402 cmt. f (1986).

See generally CRS Rept. 94-166, Extraterritorial Application of American Criminal Law.

The Constitution requires federal crimes committed within the United States to be tried in the states and districts in

which they occur, U.S. Const. Art. III, §2, cl.3; Amend. VI. It permits Congress to determine where federal crimes

committed outside the United States may be tried, U.S. Const. Art. III, §2, cl.3; see 18 U.S.C. 3238. This means a

federal crime committed within the United States may be tried wherever one of its conduct elements is committed,

United States v. Rodriguez-Moreno, 526 U.S. 275, 280 (1999). Although the Court left the question unaddressed, id. at

279 n.2, this seems to preclude trial within the district of the obstructed proceeding if the obstruction occurs elsewhere

within the United States and there is no conduct element committed within the district of the obstructed proceeding,

United States v. Cabrales, 524 U.S. 1, 5-6 (1998); United States v. Bowens, 224 F.3d 302, 314 (4th Cir. 2000); United

States v. Clenney, 434 F.3d 780, 781-82 (5th Cir. 2005); United States v. Strain, 396 F.3d 689, 694 (5th Cir. 2005). For a

more detailed discussion see, CRS Report RL33223, Venue: A Legal Analysis of Where a Federal Crime May Be Tried.

See e.g., United States v. Bergin, 682 F.3d 261, 264 n.2 (3d Cir. 2012).

See generally CRS Report R41223, Federal Conspiracy Law: A Brief Overview.

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punishable by imprisonment for not more than five years and conviction requires the government

to prove the commission of an overt act in furtherance of the scheme by one of the conspirators.27

Subsection 1512(k) has no specific overt act element, and the courts have generally declined to

imply one under such circumstances.28 Regardless of which section is invoked, conspirators are

criminally liable as a general rule under the Pinkerton doctrine for any crime committed in the

foreseeable furtherance of the conspiracy.29

Accomplices to a violation of subsection 1512(a) may incur criminal liability by operation of 18

U.S.C. 2, 3, 4, or 373 as well.30 Section 2 treats accomplices before the fact as principals. That is,

it declares that those who command, procure or aid and abet in the commission of a federal crime

by another, are to be sentenced as if they committed the offense themselves.31 As a general rule,

“[i]n order to aid and abet another to commit a crime it is necessary that a defendant in some sort

associate himself with the venture, that he participate in it as in something he wishes to bring

about, [and] that he seek by his action to make it succeed.”32 It is also necessary to prove that

someone else committed the underlying offense.33

Section 3 outlaws acting as an accessory after the fact,34 which occurs when “one knowing that an

offense has been committed, receives, relieves, comforts or assists the offender in order to hinder

his or her apprehension, trial, or punishment.”35 Prosecution requires the commission of an

underlying federal crime by someone else.36 An offender cannot be both a principal and an

accessory after the fact to the same offense.37 Offenders face sentences set at one half of the

sentence attached to the underlying offense, or if the underlying offense is punishable by life

18 U.S.C. 371.

E.g., Whitfield v. United States, 543 U.S. 209, 214-15 (2004); United States v. Shabani, 513 U.S. 10, 17 (1994).

Pinkerton v. United States, 328 U.S. 640, 646-48 (1946); United States v. Grasso, 724 F.3d 1077, 1089 (9th Cir.

2013); United States v. Walker, 721 F.3d 828, 836 (7th Cir. 2013); United States v. Ali, 718 F.3d 929, 941 (D.C. Cir.

2013).

See e.g., United States v. Bergin, 682 F.3d 261, 264 n.2 (3d Cir. 2012)(“ ... Count 13 charges that Bergin ‘knowingly

and intentionally ... counsel[ed] and induced[d] others to kill’ Kemo with ‘malice aforethought and with intent to

prevent’ his testimony in violation of 18 U.S.C. §1512(a)(1)(A)”).

18 U.S.C. 2 (“(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces

or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if

directly performed by him or another would be an offense against the United States, is punishable as a principal”).

Nye & Nissen v. United States, 336 U.S. 613, 619 (1949); United States v. Rufai, 732 F.3d 1175, 1338 (10th Cir.

2013); United States v. Davis, 717 F.3d 28, 33 (1st Cir. 2013); see also United States v. Wilson, 160 F.3d 732, 739 (D.C.

Cir. 1998)(aiding and abetting a subsection 1512(a) offenses)(“Aiding and abetting requires the government to prove:

(1) the specific intent to facilitate the commission of a crime by another; (2) guilty knowledge; (3) that the other was

committing an offense; and (4) assisting or participating in the commission of the offense”).

United States v. Rufai, 732 F.3d at 1338; United States v. Davis, 717 F.3d at 33; United States v. Cain, 671 F.3d 271,

302 (2d Cir. 2012).

18 U.S.C. 3 (“Whoever, knowing that an offense against the United States has been committed, receives, relieves,

comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after

the fact ... ”).

United States v. Gerhard, 615 F.3d 7, 23 (1st Cir. 2010); United States v. Gianakos, 415 F.3d 912, 920 n.4 (8th Cir.

2005); United States v. DeLaRosa, 171 F.3d 215, 221 (5th Cir. 1999); United States v. Irwin, 149 F.3d 565, 571 (7th Cir.

1998).

United States v. Boyd, 640 F.3d 657, 668 (6th Cir. 2011); United States v. Hill, 279 F.3d 731, 741 (9th Cir. 2002);

United States v. DeLaRosa, 171 F.3d 215, 221 (5th Cir. 1999); United States v. Irwin, 149 F.3d 565, 571 (7th Cir. 1998).

United States v. Taylor, 322 F.3d 1209, 1211-212 (9th Cir. 2003).

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imprisonment or death, by imprisonment for not more than 15 years (and a fine of not more than

$250,000).38

Although at first glance §4’s misprision prohibition may seem to be a failure-to-report offense,

misprision of a felony under the section is in essence a concealment offense.39 “The elements of

misprision of a felony under 18 U.S.C. 4 are (1) the principal committed and completed the

felony alleged; (2) the defendant had full knowledge of that fact; (3) the defendant failed to notify

the authorities; and (4) defendant took steps to conceal the crime.”40 The offense is punishable by

imprisonment for not more than three years and/or a fine of not more than $250,000.41

Solicitation to commit an offense under subsection 1512(a), or any other crime of violence, is

prohibited in 18 U.S.C. 373.42 “To establish solicitation under §373, the Government must

demonstrate that the defendant (1) had the intent for another to commit a crime of violence and

(2) solicited, commanded, induced or otherwise endeavored to persuade such other person to

commit the crime of violence under circumstances that strongly corroborate evidence of that

intent.”43 Section 373 provides an affirmative statutory defense for one who prevents the

commission of the solicited offense.44 Offenders face penalties set at one half of the sanctions for

18 U.S.C. 3 (“ ... Except as otherwise expressly provided by any Act of Congress, an accessory after the fact shall be

imprisoned not more than one-half the maximum term of imprisonment or (notwithstanding section 3571) fined not

more than one-half the maximum fine prescribed for the punishment of the principal, or both; or if the principal is

punishable by life imprisonment or death, the accessory shall be imprisoned not more than 15 years”).

18 U.S.C. 4 (“Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United

States, conceals and does not as soon as possible make known the same to some judge or other person in civil or

military authority under the United States, shall be fined under this title or imprisoned not more than three years, or

both”).

United States v. Gebbie, 294 F.3d 540, 544 (3d Cir. 2002); United States v. Cefalu, 85 F.3d 964, 969 (2d Cir. 1996);

United States v. Vasquez-Chan, 978 F.2d 546, 555(9th Cir. 1992); see also Patel v. Mukasey, 526 F.3d 800, 803 (5th Cir.

2008); see also United States v. Boyd, 640 F.3d 657, 668 (6th Cir. 2011)(“To sustain a conviction for misprision of

felony, the Government must prove beyond a reasonable doubt that principal committed the felony alleged”).

18 U.S.C. 4. Unless otherwise provided, all federal crimes with a maximum penalty of imprisonment of more than

one year are subject to a fine of not more than $250,000 for individual defendants and not more than $500,000 for

organizational defendants, 18 U.S.C. 3571.

18 U.S.C. 373(a)(“Whoever, with intent that another person engage in conduct constituting a felony that has as an

element the use, attempted use, or threatened use of physical force against property or against the person of another in

violation of the laws of the United States, and under circumstances strongly corroborative of that intent, solicits,

commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct, shall be

imprisoned not more than one-half the maximum term of imprisonment or (notwithstanding section 3571) fined not

more than one-half of the maximum fine prescribed for the punishment of the crime solicited, or both; or if the crime

solicited is punishable by life imprisonment or death, shall be imprisoned for not more than twenty years”). See e.g.,

United States v. Fisher, 494 F.3d 5, 7-8 (1st Cir. 2007)(uphold a conviction for “solicitation to commit a crime of

violence, in violation of 18 U.S.C. 373. The particular crime of violence specified in the indictment was the murder of a

cooperating federal witness. See 18 U.S.C. 1512(a)(1)(A)”).

United States v. Caira, 737 F.3d 455, 463 (7th Cir. 2013); United States v. Hackley, 662 F.3d 671, 682 (4th Cir. 2011);

United States v. Bunchan, 626 F.3d 29, 33 (1st Cir. 2010).

18 U.S.C. 373(b), (c)(“(b) It is an affirmative defense to a prosecution under this section that, under circumstances

manifesting a voluntary and complete renunciation of his criminal intent, the defendant prevented the commission of

the crime solicited. A renunciation is not “voluntary and complete” if it is motivated in whole or in part by a decision to

postpone the commission of the crime until another time or to substitute another victim or another but similar objective.

If the defendant raises the affirmative defense at trial, the defendant has the burden of proving the defense by a

preponderance of the evidence. (c) It is not a defense to a prosecution under this section that the person solicited could

not be convicted of the crime because he lacked the state of mind required for its commission, because he was

incompetent or irresponsible, or because he is immune from prosecution or is not subject to prosecution”).

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the underlying offense, but imprisonment for not more than 20 years, if the solicited crime of

violence is punishable by death or imprisonment for life.45

A subsection 1512(a) violation opens up the prospect of prosecution for other crimes for which a

violation of subsection 1512(a) may serve as an element or otherwise related. The racketeering

statutes (RICO) outlaw acquiring or conducting the affairs of an interstate enterprise through a

pattern of “racketeering activity.”46 The commission of any of a series of state and federal crimes

(predicate offenses) constitutes a racketeering activity.47 Section 1512 offenses are RICO

predicate offenses.48 RICO violations are punishable by imprisonment for not more than 20 years

(or imprisonment for life if the predicate offense carries such a penalty), a fine of not more than

$250,000 and the confiscation of related property.49

The money laundering provisions, among other things, prohibit financial transactions involving

the proceeds of a “specified unlawful activity,” that are intended to launder the proceeds or to

promote further “specified unlawful activity.”50 Any RICO predicate offense is by virtue of that

fact a specified unlawful activity, that is, a money laundering predicate offense.51 Money

laundering is punishable by imprisonment for not more than 20 years, a fine ranging from

$250,000 to $500,000 depending upon the nature of the offenses, and the confiscation of related

property.52

A subsection 1512(a) offense is by definition a crime of violence.53 Commission of a crime of

violence is an element of, or a sentence enhancement factor for, several other federal crimes, for

example:

•

18 U.S.C. 25 (use of a child to commit a crime of violence),54

•

18 U.S.C. 521 (criminal street gang),55

•

18 U.S.C. 924(c)(carrying a firearm during and in relation to a crime of

violence),56

18 U.S.C. 373.

18 U.S.C. 1961-1963.

18 U.S.C. 1961.

Id. E.g., Sotirion v. United States, 617 F.3d 27, 29 (1st Cir. 2010); United States v. Royer, 599 F.3d 886, 889 (2d Cir.

2010).

18 U.S.C. 1963. For a general discussion of RICO see Twenty-Eighth Survey of White Collar Crime: Racketeer

Influenced and Corrupt Organizations, 50 AMERICAN CRIMINAL LAW REVIEW 1423 (2013); and CRS Rept. 96-950,

RICO: A Brief Sketch. See also 18 U.S.C. 1959 which outlaws violent crimes in aid of racketeering.

18 U.S.C. 1956.

18 U.S.C. 1956(c)(7)(A). A second money laundering statute, 18 U.S.C. 1957, outlaws monetary transactions

involving more than $10,000 consisting of proceeds generated by any of the predicate offenses identified in Section

1956, 18 U.S.C. 1957(f).

18 U.S.C. 1956, 981, 982. For a general discussion of the money laundering statutes see Twenty-Eighth Survey of

White Collar Crime: Money Laundering, 50 AMERICAN CRIMINAL LAW REVIEW 1271 (2013); and CRS Report

RL33315, Money Laundering: An Overview of 18 U.S.C. 1956 and Related Federal Criminal Law.

18 U.S.C. 16(a)(“The term ‘crime of violence’ means—(a) an offense that has as an element the use, attempted use,

or threatened use of physical force against the person or property of another”).

Offenders face a fine and term of imprisonment twice that of the offense committed by the child, 18 U.S.C. 25(b).

Offenders face a term of imprisonment of not more than 10 years in addition to the penalty imposed for the crime of

violence, 18 U.S.C. 521(b).

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•

18 U.S.C. 929 (carrying a firearm with restricted ammunition during and in

relation to a crime of violence),57

•

18 U.S.C. 1028 (identity fraud in connection with a crime of violence).58

•

18 U.S.C. 1959 (violence in aid of a RICO enterprise).59

Obstruction by Intimidation, Threats, Persuasion, or Deception (18

U.S.C. 1512(b)

The second group of offenses within §1512 outlaws obstruction of federal congressional, judicial,

or administrative activities by intimidation, threat, corrupt persuasion, or deception, 18 U.S.C.

1512(b). Parsed to its elements, subsection 1512(b) provides that:

I. Whoever

II. knowingly

A. uses intimidation

B. threatens, or

C. corruptly persuades another person, or

D. attempts to do so, or

E. 1. engages in misleading conduct60

2. toward another person,

III. with intent to

A. 1. a. influence,

b. delay, or

(...continued)

Offenders face a term of imprisonment ranging from imprisonment for not less than five years to imprisonment for

life depending upon the circumstances of the offenses in addition to the penalty imposed for the underlying crime of

violence, 18 U.S.C. 924(c)(1). In United States v. Harris, 498 F.3d 278 (4th Cir. 2007), the Fourth Circuit upheld a

conviction for violating subsections 1512(a) and 924(c) in connection with the firebombing of a witness’s home (for

purposes of 924(c) a firearm includes explosive or incendiary devices, 18 U.S.C. 921(a)(3),(4)).

Offenders face a term of imprisonment of not less than 5 years in addition to the penalty imposed for the underlying

crime of violence, 18 U.S.C. 929(a)(1).

Offenders face a term of imprisonment of not more than 20 years, 18 U.S.C. 1028(b)(3).

Offenders face death or a term of imprisonment based upon the nature of the violence committed. Thus, for

example, murder in violation of §1959 is punishable by death or life imprisonment; attempted murder by imprisonment

for not more than 10 years, 18 U.S.C. 1959(a)(1), (a)(5). In United States v. Ramos-Cruz, 667 F.3d 487, 492, 494 (4th

Cir. 2012), the Fourth Circuit upheld the conviction of a defendant convicted of RICO conspiracy (18 U.S.C. 1962);

assault with a dangerous weapon in aid of racketeering (18 U.S.C. 1959(a)(3)); conspiracy to murder in aid of

racketeering (18 U.S.C. 1959(a)(5)); murder in aid of racketeering (18 U.S.C. 1959(a)(1)); murderous witnesstampering(18 U.S.C. 1512(a)(1)(C); carrying and using a firearm during a crime of violence (18 U.S.C. 924(c)); murder

resulting from carrying and using a firearm during a crime of violence (18 U.S.C. 924(j)); and possession of a firearm

by an illegal alien (18 U.S.C. 922(g)(5)(A), 924(a)(2)).

“As used in sections 1512 and 1513 of this title and in this section ... (3) the term ‘misleading conduct’ means—(A)

knowingly making a false statement; (B) intentionally omitting information from a statement and thereby causing a

portion of such statement to be misleading, or intentionally concealing a material fact, and thereby creating a false

impression by such statement; (C) with intent to mislead, knowingly submitting or inviting reliance on a writing or

recording that is false, forged, altered, or otherwise lacking in authenticity; (D) with intent to mislead, knowingly

submitting or inviting reliance on a sample, specimen, map, photograph, boundary mark, or other object that is

misleading in a material respect; or (E) knowingly using a trick, scheme, or device with intent to mislead,” 18 U.S.C.

1515(a)(3).

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c. prevent

2. the testimony of any person

3. in an official proceeding,61 or

B. cause or induce any person to

1. a. i. withhold testimony, or

ii. withhold a

(I) record,

(II) document, or

(III) other object,

b. from an official proceeding, or

2. a. i. alter,

ii. destroy,

iii. mutilate, or

iv. conceal

b. an object

c. with intent to impair

d. the object’s

i. integrity or

ii. availability for use

e. in an official proceeding, or

3. a. evade

b. legal process

c. summoning that person

i. to appear as a witness, or

ii. to produce a

(I) record,

(II) document, or

(III) other object,

iii. in an official proceeding, i.e., a

(I) federal court proceeding,

(II) federal grand jury proceeding,

(III) Congressional proceeding,

(IV) federal agency proceeding, or

(V) proceeding involving the insurance business; or

4. a. be absent

b. from an official proceeding,

c. to which such person has been summoned by legal process; or

C. 1. a. hinder,

b. delay, or

c. prevent

2. the communication to a

“(a) As used in sections 1512 and 1513 of this title and in this section—(1) the term ‘official proceeding’ means—

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

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

Federal grand jury; (B) a proceeding before the Congress; (C) a proceeding before a Federal Government agency which

is authorized by law; or (D) a proceeding involving the business of insurance whose activities affect interstate

commerce before any insurance regulatory official or agency or any agent or examiner appointed by such official or

agency to examine the affairs of any person engaged in the business of insurance whose activities affect interstate

commerce,” 18 U.S.C. 1515(a)(1).

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a. federal judge or

b. federal law enforcement officer62

3. of information relating to the

a. commission or

b. possible commission of a

4. a. federal offense or

b. [a] violation of conditions of

i. probation,

ii. supervisor release,

iii. parole, or

iv. release pending judicial proceedings;

shall be fined under this title or imprisoned not more than 20 years, or both.63

In more general terms, subsection 1512(b) bans (1) knowingly, (2) using one of the prohibited

forms of persuasion (intimidation, threat, misleading or corrupt persuasion), (3)(a) with the intent

to prevent a witness’s testimony or physical evidence from being truthfully presented at official

federal proceedings or (b) with the intent to prevent a witness from cooperating with authorities

in a matter relating to a federal offense.64

It also bans any attempt to so intimidate, threaten, or corruptly persuade.65 The term “corruptly”

in the phrase “corruptly persuades” as it appears in subsection 1512(b) has been found to refer to

the manner of persuasion,66 the motive for persuasion,67 and the manner of obstruction.68

“(a) As used in sections 1512 and 1513 of this title and in this section ... (4) the term ‘law enforcement officer’ means

an officer or employee of the Federal Government, or a person authorized to act for or on behalf of the Federal

Government or serving the Federal Government as an adviser or consultant—(A) authorized under law to engage in or

supervise the prevention, detection, investigation, or prosecution of an offense; or (B) serving as a probation or pretrial

services officer under this title,” 18 U.S.C. 1515(a)(4).

18 U.S.C. 1512(b). “Shall be fined under this title” refers to the fact that as a general rule in the case of felonies 18

U.S.C. 3571 calls for fines of not more than the greater of $250,000 for individuals ($500,000 for organizations) or of

twice the amount of the gain or loss associated with the offense.

As in the case of subsection 1512(a), if a subsection 1512(b) obstruction is committed in connection with the trial of a

criminal charge which is more severely punishable, the higher penalty applies to the subsection 1512(b) violation as

well, 18 U.S.C. 1512(j).

See e.g., United States v. Victor, 973 F.2d 975, 978 (1st Cir. 1992); United States v. Thompson, 76 F.3d 442, 452-53

(2d Cir. 1996); United States v. Holt, 460 F.3d 934, 938 (7th Cir. 2006); United States v. Gurr, 471 F.3d 144, 154 (D.C.

Cir. 2007); United States v. Tampas, 493 F.3d 1291, 1300 (11th Cir. 2007); United States v. Carson, 560 F.3d 566, 580

(6th Cir. 2009); United States v. Eads, 729 F.3d 769, 779 (7th Cir. 2013).

18 U.S.C. 1512(b).

United States v. LaShay, 417 F.3d 715, 718 (7th Cir. 2005)(“corrupt persuasion occurs where a defendant tells a

potential witness a false story as if the story were true, intending that the witness believe the story and testify to

it”)(very much like the offenses elsewhere in subsection 1512(b) of “knowingly ... engag[ing] in misconduct toward

another person” with obstructive intent); United States v. Farrell, 126 F.3d 484, 488 (3d Cir. 1997)(emphasis in the

original)(“Thus, we are confident that both attempting to bribe someone to withhold information and attempting to

persuade someone to provide false information to federal investigators constitute ‘corrupt persuasion’ under

§1512(b)”).

United States v. Gotti, 459 F.3d 296, 343 (2d Cir. 2006)(“This Circuit has defined ‘corrupt persuasion’ as persuasion

that is ‘motivated by an improper purpose.’ United States v. Thompson, 76 F.3d 442, 452 (2d Cir. 1996). We have also

specifically stated that the Obstruction of Justice Act can be violated by corruptly influencing a witness to invoke the

Fifth Amendment privilege in his grand jury testimony. See United States v. Cioffi, 493 F.2d 111, 1118 (2d Cir.

1974)”); United States v. Khatami, 280 F.3d 907, 911-12 (9th Cir. 2002)(“Synthesizing these various definitions of

“corrupt” and “persuade,” we note the statute strongly suggests that one who attempts to “corruptly persuade” another

is, given the pejorative plain meaning of the root adjective “corrupt,” motivated by an inappropriate or improper

(continued...)

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Prosecution for obstructing official proceedings under subsection 1512(b)(2) will require proof

that the defendant intended to obstruct a particular proceeding.69 Prosecution for obstructing the

flow of information to law enforcement officials under subsection 1512(b)(3), on the other hand,

apparently requires no such nexus.70 A subsection 1512(b)(3) investigation obstruction offense

prosecution, however, does require proof that the defendant believed it reasonably likely that the

witness, absent tampering, might communicate with federal authorities.71 The defendant’s belief

(...continued)

purpose to convince another to engage in a course of behavior-such as impeding an ongoing criminal investigation”);

United States v. Shotts, 145 F.3d 1289, 1301 (11th Cir. 1998)(“It is reasonable to attribute to the ‘corruptly persuade’

language in Section 1512(b), the same well-established meaning already attributed by the courts to the comparable

language in Section 1503(a), i.e., motivated by an improper purpose”).

United States v. Baldridge, 559 F.3d 1126, 1143 (10th Cir. 2009)(“[T]he ‘corruptly persuades’ element requires the

government to prove a defendant’s action was done voluntarily and intentionally to bring about false or misleading

testimony or to prevent testimony with the hope or expectation of some benefit to the defendant or another person”);

United States v. Hull, 456 F.3d 133, 142 (3d Cir. 2006)(“[T]here was ample evidence from which the jury could

conclude that Hull knowingly attempted to corruptly persuade Rusch, with the intent to change her testimony. See

United States v. Farrell, 126 F.3d 484, 488 (3d Cir. 1997)(holding that ‘corrupt persuasion’ includes ‘attempting to

persuade someone to provide false information to federal investigators’)”); United States v. Cruzado-Laureano, 404

F.3d 470, 487 (1st Cir. 2005)(“Trying to persuade a witness to give false testimony counts as ‘corruptly persuading’

under §1512(b)”); United States v. Burns, 298 F.3d 523, 540 (6th Cir. 2002)(“Burns attempted to ‘corruptly persuade’

Walker by urging him to lie about the basis of their relationship, to deny that Walker knew Burns as a drug dealer, and

to disclaim that Burns was Walter’s source of crack cocaine”); United States v. Pennington, 168 F.3d 1060, 1066 (8th

Cir. 1999)(“After carefully examining this amendment and its legislative history, the Third Circuit concluded that the

ambiguous term ‘corruptly persuades’ includes ‘attempting to persuade someone to provide false information to federal

investigators.’ United States v. Farrell, 126 F.3d 484, 488 (3d Cir. 1997) (emphasis in the original). We agree”).

Even though the statute, 18 U.S.C. 1512(f), provides that the obstructed proceedings need be neither ongoing nor

pending at the time of the obstruction, it is “one thing to say that a proceeding need not be pending or about to be

instituted at the time of the offense, and quite another to say a proceeding need not even be foreseen. A knowingly ...

corrupt persuader cannot be someone who persuades others to shred documents under a comment retention policy when

he does not have in contemplation any particular official proceeding in which those documents might be material,”

Arthur Andersen LLP v. United States, 544 U.S. 696, 707-8 (2005); United States v. Tyler, 732 F.3d 241, 248 (3d Cir.

2013)(“[T]he government must prove that the defendant sought to interfere with evidence or a witness and acted in

contemplation of a particular official proceeding. If the defendant lacks knowledge that his actions are likely to affect

the official proceeding, then he lacks the requisite intent to obstruct”); United States v. Misla-Aldarondo, 478 F.3d 52,

69 (1st Cir. 2007).

United States v. Carson, 560 F.3d 566, 580 (6th Cir. 2009)(“For violation of §1512(b)(3), it is sufficient if the

misleading information is likely to be transferred to a federal agent”); United States v. Ronda, 455 F.3d 1273, 1288

(11th Cir. 2006)(“Arthur Andersen interpreted and applied only §1512(b)(2), which explicitly requires that the acts of

obstruction relate to an official proceeding. Unlike §1512(b)(2), §1512(B)(3) makes no mention of an official

proceeding and does not require that a defendant’s misleading conduct relate in any way either to an official proceeding

or even to a particular ongoing investigation.... There is simply no reason to believe that the Supreme Court’s holding

in Arthur Andersen requires that we graft onto §1512(b)(3) an official proceeding requirement based on statutory

language in §1512(b)(2) that does not appear in §1512(b)(3). As we already noted in [United States v. Veal, 153 F.3d

1233 (11th Cir. 1998)], the federal nexus required under §1512(b)(2) is distinct from that required under §1512(b)(3).

Unlike the stricter an official proceeding requirement that appears in §1512(b)(2), §1512(b)(3) requires only that a

defendant intended to hinder, delay, or prevent communication to any law enforcement officer or judge of the United

States. Id. at 1248. This distinction was critical to our decision in Veal that §1512(b)(3) requires only the possible

existence of a federal crime and a defendant’s intention to thwart an inquire into that crime. Veal, 153 F.3d at 11250.

As we explained in Veal, §1512(b)(3) criminalizes the transfer of misleading information which actually relates to a

potential federal offense ... Veal, 153 F.3d at 1252 (emphasis in the original)”); cf., United States v. Byrne, 435 F.3d 16,

25 (1st Cir. 2006)(“If the defendant’s contention is that the government must prove the possible existence of a federal

crime and a defendant’s intention to thwart an inquiry into that crime by officials who happen to be federal, we

continue to agree. If the defendant suggests that Arthur Andersen requires a heightened showing of a nexus in a

§1512(b)(3) prosecution, between the intent to hinder communications and a particular law enforcement agency, we

express our doubts but defer any final judgment for a future case that requires resolution of that issue”).

United States v. Williams, 825 F.Supp.2d 128, 134-38 (D.C.Cir. 2011); cf., United States v. Tyler, 732 F.3d 241,

(continued...)

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that a witness is reasonably likely to confer with federal authorities can be inferred from the

nature of the offense and “additional appropriate evidence.”72

The attributes common to §1512 as a whole, apply to subsection 1512(b); some of which may fit

more comfortably in a subsection 1512(b) corrupt persuasion setting than they do in a 1512(a)

violence prosecution. The affirmative defenses in subsections 1512(e) and 1515(d) are prime

examples. Subsection 1512(e) removes by way of an affirmative defense good faith

encouragements of a witness to speak or testify truthfully, although it does not excuse urging a

witness to present fabrications as the truth.73 Subsection 1515(d) makes it clear that bona fide

legal advice and related services cannot be used to provide the basis for subsection 1512(b)

corrupt persuasion prosecution.74 Conversely, charges of soliciting a crime of violence—18

U.S.C. 373—or of using a child to commit a crime of violence—18 U.S.C. 25—are more likely to

be prosecutorial companions of a charge under subsection 1512(a) than under subsection 1512(b).

On the other hand, the extraterritorial and venue statements of subsections 1512(h) and 1512(i)

are as readily applicable to subsection 1512(b) persuasion prosecutions as they are to a subsection

1512(a) violent obstruction case. The same can be said of aiding and abetting, accessories after

the fact, misprision, and predicate offense status under RICO or the money laundering statutes.75

And, it is likewise a separate offense to conspire to violate subsection 1512(b) under either §371

or subsection 1512(k).

Obstruction by Destruction of Evidence (18 U.S.C. 1512(c))

The obstruction by destruction of evidence offense found in subsection 1512(c) is the creation of

the Sarbanes-Oxley Act,76 and proscribes obstruction of federal administrative, judicial, or

congressional proceedings by destruction of evidence.77

More specifically, subsection 1512(c) provides that:

I. Whoever

II. corruptly

III. A.1.alters,

(...continued)

249-52 (3d Cir. 2013).

United States v. Guadalupe, 402 F.3d 409, 412 (3d Cir. 2005)(This last element may be inferred from the fact the

offense was federal in nature, plus ‘additional appropriate evidence.’ An example of this ‘additional appropriate

evidence’ is that the defendant had actual knowledge of the federal nature of the offense”); cf., United States v. Lopez,

372 F.3d 86, 91-92 (2d Cir. 2004)(citing examples of additional appropriate evidence necessary in law enforcement

obstruction element in the context of a subsection 1512(a) prosecution (obstruction through murder or physical force)).

United States v. Eads, 729 F.3d 769, 780 (7th Cir. 2013); United States v. Cruzado-Laureano, 404 F.3d 470 (1st Cir.

2005)(“Cruzado did ask that they tell the truth; however, his version of ‘the truth’ that he urged upon them was

anything but the truth”).

E.g., United States v. Kellington, 217 F.3d 1084, 1098-1100 (9th Cir. 2000).

E.g., United States v. Gotti, 459 F.3d 296, 301 (2d Cir. 2006)(18 U.S.C. 1512(b) as a RICO predicate offense);

Sepulveda v. United States, 330 F.3d 55, 58 (1st Cir. 2003)(same).

P.L. 107-204, 116 Stat, 807 (2000).

18 U.S.C. 1512(c); 1515(a)(1).

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2. destroys,

3. mutilates, or

4. conceals

B. 1. a record,

2. document, or

3. other object, or

C. attempts to do so,

D. with the intent to impair the object’s

1. integrity, or

2. availability for use

E. in an official proceeding, or

IV. otherwise

A. 1. obstructs,

2. influences, or

3. impedes

B. an official proceeding, or

C. attempts to do so

shall be fined under this title or imprisoned not more than 20 years, or both.78

Section 1512(c) covers only obstructions committed or attempted with “corrupt” intent. Here, the

courts have said that “corruptly” means “acting with an improper purpose and to engage in

conduct knowingly and dishonestly with the specific intent to subvert, impede, or obstruct the

proceeding”;79 that it means “acting with consciousness of wrongdoing.”80 It does not mean that

the obstruction must be done with wicked or evil intent.81

The courts appear divided over whether an FBI investigation may constitute “official

proceeding”;82 a fact that may flow from their ambivalence over whether the evidence the

defendant sought to deny need be material. Some have declared that there must be a nexus

between the defendant’s destructive conduct and the proceedings he sought to obstruct: “the

defendant’s conduct must ‘have a relationship in time, causation, or logic with the [official] ...

proceedings’; in other words, ‘the endeavor must have the natural and probable effect of

interfering with the due administration of justice.’”83 Others have said that there is no materiality

18 U.S.C. 1512(c); e.g., United States v. Freeman, 741 F.3d 426, 437-38 (4th Cir. 2014).

United States v. Gordon, 710 F.3d 1124, 1151 (10th Cir. 2013).

United States v. Mann, 701 F.3d 274, 305-306 (8th Cir. 2012).

United States v. Watters, 717 F.3d 733, 734-36 (9th Cir. 2013)(finding it unnecessary to decide what “corruptly”

means, but suggesting that “consciousness of wrongdoing”—the Arthur Anderson interpretation of “knowingly

corruptly”—places too heavy a burden on the government).

United States v. Ermonian, 727 F.3d 894, 898-902 (9th Cir. 2013)(holding that such investigations do not constitute

official proceedings but acknowledging contrary authority in the Fifth (United States v. Ramos, 537 F.3d 439 (5th Cir.

2008)) and Second United States v. Gonzalez, 922 F.2d 1044 (2d Cir. 1991)) Circuits); see also United States v. Burge,

711 F.3d 803, 808-10 (7th Cir. 2013)(rejecting the argument that taking a deposition in conjunction with federal civil

litigation rested beyond the reach of §1512(c)).

United States v. Carson, 560 F.3d 566, 584 (6th Cir. 2009); United States v. Simpson, 741 F.3d 539, 552 (5th Cir.

2014)(internal citations omitted)(“”Though a proceeding need not be actually pending at the time of the obstructive act,

an obstruction of justice conviction requires some nexus between the obstructive act and some official government

proceeding. A proceeding must at least be foreseen, such that the defendant has in contemplation some particular

official proceeding in which the destroyed evidence might be material”); United States v. Desposito, 704 F.3d 221,

(continued...)

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Obstruction of Justice

requirement (i.e., that the obstruction is not confined to evidence that has the natural tendency to

influence the proceeding).84

As is generally true of attempts to commit a federal offense, attempt to violate subsection 1512(c)

requires an intent to violate the subsection and a substantial step toward the accomplishment of

that goal.85 Like subsection 1512(a) and 1512(b) offenses, subsection 1512(c) offenses are RICO

and money laundering predicate offenses,86 and may provide the foundation for criminal liability

as a principal, accessory after the fact, conspirator, or one guilty of misprision.87 If the federal

judicial, administrative or congressional proceedings are obstructed, prosecution may be had in

the United States even if the destruction occurs overseas,88 the proceedings are yet pending,89 or

the offender is unaware of their federal character.90

Obstruction by Harassment (18 U.S.C. 1512(d))

The obstruction by harassment prohibition in subsection 1512(d) existed as subsection 1512(c)

until redesignated by Sarbanes-Oxley in 2002.91 Subsection 1512(d) declares:

I. Whoever,

II. intentionally,

III. harasses another person, and thereby

IV. A. hinders,

B. delays,

C. prevents, or

D. dissuades,

V. any person from

A. 1. attending or

2. testifying in

3. an official proceeding, or

(...continued)

230-31 (2d Cir. 2013); United States v. Ahrensfield, 698 F.3d 1310, 1324 (10th Cir. 2012); see also United States v.

Townsend, 630 F.3d 1003, 1015 n. 8 (11th Cir. 2011)(observing without comment that the trial court’s instruction to the

jury that, “the defendant can be found guilty of that offense only if all the following facts are proved beyond a

reasonable doubt ... Four that the natural and probable effect of the defendant’s conduct would be the interference with

the due administration of justice”).

United States v. Burge, 711 F.3d 803, 812 n.4 (7th Cir. 2013).

United States v. Lucas, 499 F.3d 769, 781 (8th Cir. 2007); United States v. Gordon, 710 F.3d 1124, 1150 (10th Cir.

2013)(“Thus, [for attempt] the government was required to prove beyond a reasonable doubt (1) that Mr. Gordon

intended to ‘corruptly’ obstruct an official proceeding ... and (2) that he committed a substantial step toward the

commission of the intended obstruction”).

18 U.S.C. 1961, 1956(c)(7)(A).

18 U.S.C. 2, 3, 371, 1512(k), 4; see e.g., United States v. Mann, 685 F.3d 714, 722 (8th Cir. 2012)(conspiracy and

aiding and abetting).

18 U.S.C. 1512(h).

18 U.S.C. 1512(f); United States v. Ahrensfield, 698 F.3d 1310, 1324 (10th Cir. 2012).

18 U.S.C. 1512(g); United States v. Ahrensfield, 698 F.3d at 1324.

Section 1102, P.L. 107-204, 116 Stat. 807 (2002).

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B. reporting

1. a. to a law enforcement officer, or

b. judge

c. of the United States,

2. a. the commission, or

b. possible commission, of

3. a. a federal offense, or

b. a violation of the conditions of

i. probation,

ii. supervised release,

iii. parole, or

iv. release pending judicial proceedings, or

C. 1. arresting, or

2. seeking to arrest

3. another person

4. in connection with a federal offense, or

D. causing

1. a. a criminal prosecution, or

b. a parole revocation proceeding, or

c. a probation revocation proceeding

2. a. to be sought, or

b. instituted, or

3. assisting in such prosecution or proceeding, or

VI. attempts to do so

shall be fined under this title or imprisoned not more than 3 years, or both.92

The fine for crimes punishable by imprisonment for not more than 3 years is not more than

$250,000 (not more than $500,000 for organizations).93 The subsection does not apply to

obstructing a private individual who seeks information of criminal activity in order to report it to

federal authorities.94

Subsection 1512(d) harassment offenses are RICO and money laundering predicate offenses.95

The provisions of law relating to principals, accessories after the fact, misprision, and conspiracy

apply with equal force to offenses under subsection 1512(d),96 as do the provisions elsewhere in

§1512 relating to extraterritorial application,97 and abolition of the need to show pendency or

knowledge of the federal character of the obstructed proceedings or investigation.98

18 U.S.C. 1512(d).

18 U.S.C. 3571, 3581.

Camelio v. American Federation, 137 F.3d 666, 671-72 (1st Cir. 1998).

18 U.S.C. 1961, 1956(c)(7)(A).

18 U.S.C. 2, 3, 4, 371, 1512(k).

18 U.S.C. 1512(h).

18 U.S.C. 1512(f), (g).

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Obstructing Federal Courts (18 U.S.C. 1503)

The Omnibus Provision

Unlike §1512, §1503 does not to apply to the obstruction of congressional or administrative

proceedings.99 Nor, in most circuits at least, does it apply to obstruction of judicial proceedings

unless the impeded proceedings are pending.100 Nevertheless, it condemns obstructing pending

judicial proceedings by means of any of four methods. Three explicitly address interfering with

federal jurors or court officials; the fourth, the so-called omnibus provision, speaks to interfering

with the “due administration of justice.” The omnibus provision states:

I. Whoever

II. A. corruptly or

B. by threats or force, or

C. by any threatening letter or communication,

III. A. influences,

B. obstructs, or

C. impedes, or

D. endeavors to

1. influence,

2. obstruct, or

3. impede,

IV. the due administration of justice,

shall be punished as provided in subsection (b).101

Subsection (b) calls for murder and manslaughter to be punished as those crimes are punished

when committed in violation of §§1111 and 1112;102 attempted murder, attempted manslaughter,

or any violation involving a juror called to hear a case relating to a class A or B felony is

Both sections are discussed in Twenty-Eighth Survey of White Collar Crime: Obstruction of Justice, 50 AMERICAN

CRIMINAL LAW REVIEW 1299 (2013).

100

United States v. Aguilar, 515 U.S. 593, 599 (1995), citing Pettibone v. United States, 148 U.S. 197, 207 (1893); but

see conflicted lower appellate court opinions cited infra footnote 111.

101

18 U.S.C. 1503(a).

102

18 U.S.C. 1503(b). 18 U.S.C. 1111 outlaws murder within the special maritime and territorial jurisdiction of the

United States. First degree murder under §1111 is punishable by death or life imprisonment; second degree by

imprisonment for any term of years or for life, 18 U.S.C. 1111(b). 18 U.S.C. 1112 outlaws manslaughter within the

special maritime and territorial jurisdiction of the United States. Voluntary manslaughter under §1112 is punishable by

imprisonment for not more than 10 years and a fine of not more than $250,000; involuntary manslaughter by

imprisonment for not more than six years and a fine of not more than $250,000.

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punishable by imprisonment for not more than 20 years;103 and all other offenses by

imprisonment for not more than 10 years.104

The courts often observe that to convict under this omnibus or “catchall” provision the

government must prove beyond a reasonable doubt: “(1) that there was a pending judicial

proceeding, (2) that the defendant knew this proceeding was pending, and (3) that the defendant

then corruptly endeavored to influence, obstruct, or impede the due administration of justice.”105

Some also assert that the obstruction must also be material to the matters before the judicial

proceeding.106

As to the first two elements, the Supreme Court has maintained for over a century that “a person

is not sufficiently charged with obstructing or impeding the due administration of justice in a

court unless it appears that he knew or had notice that justice was being administered in such

court.”107 There is no requirement that the defendant’s endeavors succeed108 or even that they

were capable of succeeding (as long as the accused was unaware of the futility of his efforts to

obstruct).109

In order to “corruptly endeavor” to obstruct the due administration of justice, “[t]he action taken

by the accused must be with an intent to influence judicial or grand jury proceedings.... Some

courts have phrased this showing as a nexus requirement—that the act must have a relationship in

time, causation, or logic with the judicial proceedings. In other words, the endeavor must have the

natural and probable effect of interfering with the due administration of justice.”110 The Supreme

103

18 U.S.C. 1503(b)(2). Class A felonies are those punishable by imprisonment for any term of years or by life

imprisonment; Class B felonies are those punishable by a maximum term of imprisonment greater than 20 years, 18

U.S.C. 3581. All felonies are punishable by a fine of not more than $250,000 ($500,000 for organizations), 18 U.S.C.

3571.

104

18 U.S.C. 1503(b)(3).

105

United States v. Monus, 128 F.3d 376, 387 (6th Cir. 1997); see also United States v. Erickson, 561 F.3d 1150, 1159

(10th Cir. 2009); United States v. Macari, 545 F.3d 517, 522-23 (7th Cir. 2008); United States v. Richardson, 676 F.3d

491, 502 (5th Cir. 2012); United States v. Brenson, 104 F.3d 1267, 1275 (11th Cir. 1997).

106

United States v. Sussman, 709 F.3d 155, 168 (3d Cir. 2013)(“Under 18 U.S.C. §1503(a), the elements of a prima

facie case of obstruction of justice are (1) the existence of a judicial proceeding; (2) knowledge or notice of the pending

proceeding; (3) acting corruptly with the intent of influencing, obstructing, or impeding the proceeding in the due

administration of justice: and (4) the action had the natural and probable effect of interfering with the due

administration of justice”); United States v. Thomas, 612 F.3d 1107, 1128-129 (9th Cir. 2010).

107

United States v. Aguilar, 515 U.S. 593, 599 (1995), quoting Pettibone v. United States, 148 U.S. 197, 206 (1893).

108

United States v. Aguilar, 515 U.S. at 599, 600; United States v. Richardson, 676 F.3d 491, 503 (5th Cir. 2012);

United States v. Blair, 661 F.3d 755, 766 (4th Cir. 2011); United States v. Macari, 453 F.3d 926, 939 (7th Cir. 2006);

United States v. Quattrone, 441 F.3d 153, 170 (2d Cir. 2006); United States v. McBride, 362 F.3d 360, 372 (6th Cir.

2004); United States v. Muhammad, 125 F.3d 608, 620 (8th Cir. 1997). Perhaps since an endeavoring-to-obstruct charge

covers both successful and unsuccessful endeavors and therefore eliminates the need to prove success, prosecutors

ordinarily charge an endeavor to obstruct or impede, even if there is evidence of success and a charge of simple

obstruction might have been brought.

109

United States v. Tackett, 113 F.3d 603, 611 (6th Cir. 1997)(“Although the omnibus clause of §1503 requires that a

defendant’s actions were intended to obstruct an actual judicial proceeding, the government need not prove that the

actions had their intended effect. Furthermore, an endeavor to obstruct justice violates the law even if, unbeknownst to

the defendant, the plan is doomed to failure from the start”), citing United States v. Osborn, 385 U.S. 323, 333 (1966).

110

United States v. Aguilar, 515 U.S. 593, 599 (1995), citing United States v. Wood, 6 F.3d 692, 696 (10th Cir. 1993),

and United States v. Walasek, 527 F.2d 676, 679 (3d Cir. 1975); see also United States v. Bonds, 730 F.3d 890, 897 (9th

Cir. 2013); United States v. Ashqar, 582 F.3d 819, 823 (7th Cir. 2009); United States v. Johnson, 485 F.3d 1264, 1270

(11th Cir. 2007); United States v. Quattrone, 441 F.3d 153, 170-71 (2d Cir. 2006); United States v. Joiner, 418 F.3d

863, 868 (8th Cir. 2005).

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Court’s observations, notwithstanding, the courts are somewhat divided over whether the

obstructed judicial proceedings must actually be pending.111

The courts may be at odds as well over whether the due administration of justice in §1503 may be

obstructed by corrupting a witness before a federal judicial proceeding or any other obstruction

covered by 18 U.S.C. 1512 or 1513. The Second Circuit held in 1991 that when Congress enacted

the more specific witness tampering and witness retaliation provisions of §§512 and 1513 it

intended to remove those crimes from the omnibus clause’s inventory of proscriptions.112 The

other circuits, to the extent they have later addressed the issue, disagree.113 Notwithstanding

opportunities to reconsider,114 the Second Circuit has apparently found it unnecessary to do so

thus far.

The specific kinds of misconduct which will provide the basis for a prosecution under the

omnibus clause of §1503 vary considerably.115 Subsection 1515(c), however, makes it clear that

111

United States v. Quattrone, 441 F.3d 153, 170 (2d Cir. 2006)(emphasis added)(“In order to convict for obstruction

of justice under the omnibus clause of Section 1503, the government must establish (1) that there is a pending judicial

or grand jury proceeding constituting the administration of justice ... ”); accord United States v. Erickson, 561 F.3d

1150, 1159 (10th Cir. 2009); United States v. Weber, 320 F.3d 1047, 1050 (9th Cir. 2003); United States v. Fassnacht,

332 F.3d 440, 447 (7th Cir. 2003); United States v. Steele, 241 F.3d 302, 304-5 (3d Cir. 2001); United States v. Sharpe,

193 F.3d 852, 864 (5th Cir. 1999); United States v. Layne, 192 F.3d 556, 572 (6th Cir. 1999); United States v.

Frankhauser, 80 F.3d 641, 650-51 (1st Cir. 1966); United States v. Littleton, 76 F.3d 614, 618-19 (4th Cir. 1996); contra

United States v. Novak, 217 F.3d 566, 571-72 (8th Cir. 2000); see also United States v. Vaghela, 169 F.3d 729, 732-34

(11th Cir. 1999)(pendency not necessarily required in cases of conspiracy to violate Section 1503); United States v.

Bruno, 383 F.3d 65, 87 (2d Cir. 2004)(proceedings need not be pending but there must be evidence from which to infer

that they were anticipated in the case of a conspiracy to violate Section 1503).

112

United States v. Masterpol, 940 F.2d 760, 762 (2d Cir. 1991).

113

United States v. Tackett, 113 F.3d 603, 607 (6th Cir. 1997) (“The Second Circuit has held that the enactment of new

witness protection laws in 1982 and 1988 means that the government must prosecute witness tampering under the new

law, 18 U.S.C. §1512, rather than under §1503. The other circuits that have addressed the issue have reached the

opposite conclusion. See United States v. Malone, 71 F.3d 645, 659 (7th Cir. 1995)(noting that Fourth, Ninth and

Eleventh Circuits have held that the omnibus clause of §1503 continues to cover witness tampering; United States v.

Kenny, 973 F.2d 339, 342-43 (4th Cir. 1992)(noting the same for First, Fifth, Eighth and Ninth Circuits)”); see also

United States v. Ladum, 141 F.3d 1328, 1337-338 (9th Cir. 1998); United States v. LeMoure, 474 F.3d 37, 40-41 (1st

Cir. 2007).

114

United States v. Kumar, 617 F.3d 612, 622 n. 9 (2d Cir. 2010)(internal citations omitted)(“The government may

have charged Richards with violating §1512(c)(2) instead of §1503(a) due to its concern that a §1503(a) charge would

raise a ‘Masterpol issue.’ In Masterpol, we held that witness tampering is prohibited only by §1512, and is not covered

by §1503’s omnibus clause. The government’s concern with respect to Richards’s obstruction charge was misplaced.

While Masterpol might have presented an obstacle for indicting Kumar, who attempted to bribe a witness, as

previously noted, Kumar is not appealing his obstruction of justice conviction. Unlike Kumar, Richards did not engage

in witness tampering. Thus, Masterpol is not implicated here”); United States v. Bruno, 383 F.3d 65, 87 n.16 (2d Cir.

2004)(“Because the defendants were prosecuted for lying to federal investigators instead of federal grand jury

witnesses, we had no occasion to address the issue discussed above regarding our conclusion in Masterpol that charges

of lying to, or trying to influence grand jury witnesses should be prosecuted under §1512”); United States v. Genao,

343 F.3d 578, 585 (2d Cir. 2003)(“We hold that the indictment in the instant case does not set forth a sufficient nexus

between Genao’s false statements and a federal judicial proceeding so as to establish a violation of §1503”); United

States v. Schwarz, 283 F.3d 76, 110 (2d Cir. 2002); United States v. Quattrone, 441 F.3d 153, 169-73 (2d Cir.

2006)(finding evidence sufficient to establish a nexus between the defendant’s destruction of documents and the grand

jury proceedings for which they had been subpoenaed).

115

United States v. Richardson, 676 F.3d 491, 502 (5th Cir. 2012)(internal citations omitted)(The omnibus clause was

“drafted with an eye to the variety of corrupt methods by which the proper administration of justice may be impeded or

thwarted, a variety limited only by the imagination of the criminally inclined”); see e.g., United States v. Bonds, 730

F.3d 890, 894-95 (9th Cir. 2013)(evasive and misleading testimony before the grand jury); United States v. Sussman,

709 F.3d 155, 168 (3d Cir. 2013)(violation of court order freezing assets); United States v. Macari, 453 F.3d 926, 936

(7th Cir. 2006)(directing a witness to lie before the grand jury); United States v. Quattrone, 441 F.3d 153, 169-73 (2d

(continued...)

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bona fide legal advice will not provide the basis for a prosecution under the omnibus clause of

§1503 nor under any other obstruction of justice prohibition found in the same chapter for that

matter.116

Interfering with Jurors or Judicial Officials (18 U.S.C. 1503)

Bribery and other forms of jury corruption fall within the proscriptions of the omnibus clause of

§1503,117 but are more explicitly condemned in the remainder of the section.118 On its face, the

section covers both tampering with (and retaliation against) federal grand jurors, petite jurors,

magistrates, and other judicial officials. The conduct it outlaws may take the form of threats,

force, threatening letters or other communication, corruption (e.g., bribery), or in retaliation,

personal injury or property damage. Yet the offense is only complete if the misconduct is

perpetrated in an endeavor to influence, intimidate or impede a juror or judicial official or on

account of the performance of the duties of such a position.119

Before 1962, bribing a federal judge or juror might be prosecuted either under section 1503 or

under the bribery statute, 18 U.S.C. 206 (1958 ed.).120 Then in 1962 the corresponding provision

(...continued)

Cir. 2006)(destruction of documents sought under a grand jury subpoena); United States v. Joiner, 418 F.3d 863, 86566 (8th Cir. 2005) (retaliatory economic harassment of federal judge and prosecutors responsible for the defendant’s

earlier conviction); United States v. Weber, 320 F.3d 1047, 1051 (9th Cir. 2003) (threatening to kill the judge presiding

over the defendant’s supervised release revocation hearing); United States v. Novak, 217 F.3d 566, 569-72 (8th Cir.

2000)(submission of false financial reports in violation of court order governing supervised release); United States v.

Fleming, 215 F.3d 930, 933-34 (9th Cir. 2000)(filing false liens against the property of a federal judge in an effort to

influence the judge’s handling of a civil action); United States v. Layne, 192 F.3d 556, 572 (6th Cir. 1999)(attempt to

influence the testimony of a criminal trial witness); United States v. Muhammad, 120 F.3d 688 (7th Cir. 1997)(civil trial

juror’s solicitation of a bribe); United States v. Atkin, 107 F.3d 1213 (6th Cir. 1997) (promising to bribe a trial judge).

116

“This chapter does not prohibit or punish the providing of lawful, bona fide, legal representation services in

connection with or anticipation of an official proceeding,” 18 U.S.C. 1515(c).

117

United States v. Bashaw, 982 F.2d 168 (6th Cir. 1992)(“He contends that the ‘omnibus clause’ of subsection 1503,

prohibiting attempts corruptly to influence the due administration of justice, does not apply to conduct directed toward

jurors. . .. This argument is without merit”); see also United States v. Muhammad, 120 F.3d 688, 693-95 (7th Cir.

1997)(juror’s solicitation of a bribe comes within the omnibus provision).

118

“Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence,

intimidate, or impede any grand or petit juror, or officer in or of any court of the United States, or officer who may be

serving at any examination or other proceeding before any United States magistrate judge or other committing

magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of

any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such

officer, magistrate judge, or other committing magistrate in his person or property on account of the performance of his

official duties ... shall be punished as provided in subsection (b). If the offense under this section occurs in connection

with a trial of a criminal case, and the act in violation of this section involves the threat of physical force or physical

force, the maximum term of imprisonment which may be imposed for the offense shall be the higher of that otherwise

provided by law or the maximum term that could have been imposed for any offense charged in such case,” 18 U.S.C.

1503(a).

119

United States v. Beale, 620 F.3d 856, 865 (8th Cir. 2010)(internal quotation marks and citations omitted)(“In order

to convict for obstruction of justice, the government must show that each defendant intended to interfere with the due

administration of justice. A conviction under §1512(a) requires proof of a sufficient nexus between each defendant’s

actions and an intent to impede judicial proceedings. According to the nexus analysis, the act must have a relationship

in time, causation, or logic with the judicial proceedings”)(defendants issued a series of “liens” and “arrest warrants” to

intimidate or disable a federal judge scheduled to preside over the criminal trial of one of the defendants).

120

United States v. Margoles, 294 F.2d 371, 371 (7th Cir. 1961)(defendant charged with jury tampering under sections

206 and 1503); United States v. Benallo, 216 F.2d 891, 895 (10th Cir. 1954)(upholding convictions for jury tampering

(continued...)

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in §206 disappeared when Congress revised federal bribery statutes and merged a number of

individual sections into the general proscriptions now found in 18 U.S.C. 201. That §201 applies

to bribery involving judges and certainly to bribery involving jurors seems clear from its

language,121 its history,122 and the limited available case law.123 Since 1962, however, such cases

appear to have been prosecuted in most instances under §1503 alone.124

A separate section, 18 U.S.C. 373, outlaws conspiracies to obstruct jurors and other judicial

officers in the performance of their duties by force, intimidation or threat.125

Section 1503 carries a general maximum penalty of imprisonment for not more than 10 years and,

with one unusual exception, an escalating penalty structure for more serious violations.126 Thus,

the offense is punishable by imprisonment for not more than 20 years, if it involves either an

attempted killing or is committed against a juror in a case involving a class A or B felony, i.e. a

(...continued)

in violation of sections 206 and 1503); United States v. Zullo, 151 F.2d 560, 560-62 (3d Cir. 1945)(upholding jury

tampering convictions under earlier versions of sections 206 and 1503); Slade v. United States, 85 F.2d 786 (10th Cir.

1936).

121

“[T]he term ‘public official’ means ... person acting for or on behalf of the United States, or any department, agency

or branch of Government thereof ... in any official function, under or by authority of any such department, agency, or

branch of Government, or a juror ... (b) Whoever—(1) directly or indirectly, corruptly gives, offers or promises

anything of value to any public official or person who has been selected to be a public official, or offers or promises

any public official or any person who has been selected to be a public official to give anything of value to any other

person or entity, with intent—(A) to influence any official act ... (2) being a public official or person selected to be a

public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept

anything of value personally or for any other person or entity, in return for: (A) being influenced in the performance of

any official act ... shall be imprisoned for not more than fifteen years ... ” 18 U.S.C. 201(a)(1),(b)(1),(2).

122

“Sections 201 through 213 of present title 18 of the United States Code comprise nine general bribery sections and

four subsections prohibiting bribery in special cases. . .. The bill combines into a single section (201) and renders

uniform the disparate provisions of the nine general bribery sections (... secs. 206, 207, and 208, judges and judicial

officers including jurors ... ),” H.Rept. 87-748, at 15 (1961).

123

United States v. DeAlesandro, 361 F.2d 694, 699-700 (2d Cir. 1966)(“Defendant contends that she was charged in

two different counts for what amounted to the same crime. One count referred to 18 U.S.C. 201. . .. The second charged

violation of 18 U.S.C. 1503. . .. It is true that the two counts charged essentially the same acts. . .. The fatal defect in the

argument is that Congress has explicitly made defendant’s conduct criminal in separate statutes, and has indicated that

the two are not to be regarded as defining the same offense. . .. [Their] history makes clear the congressional intent to

create two separate offenses, separately indictable and separately punishable”); United States v. Henley, 238 F.3d 1111,

1122-123 n.19 (9th Cir. 2001)(“We note that only one court of appeals appears to have addressed the question of

whether a defendant who is involved in jury tampering may obtain a new trial on that ground. . .. (Under 18 U.S.C. 201,

a defendant faces imprisonment of up to 15 years for bribery of a juror.) Here, there is no allegation that Henley

participated in the tampering incident, only that he was aware of it”).

124

United States v. DeLaRosa, 171 F.3d 215, 217-18 (5th Cir. 1999); United States v. Borders, 693 F.2d 1318, 1319

(11th Cir. 1982); United States v. Neiswender, 590 F.2d 1269, 1270 (4th Cir. 1979); United States v. Quinn, 543 F.2d

640, 642-43 (8th Cir. 1976); United States v. Osborn, 350 F.2d 497, 498 (6th Cir. 1965), aff’d, 385 U.S. 323 (1966);

United States v. Hoffa, 349 F.2d 20, 26 (6th Cir. 1965), aff’d, 385 U.S. 293 (1966); but see United States v. Muhammad,

120 F.3d 688, 693-95 (7th Cir. 1997); United States v. DeAlesandro, 361 F.2d 694, 699-700 (2d Cir. 1966).

125

United States v. Beale, 620 F.3d 856, 864 (8th Cir. 2010)(“[I]n order to sustain a conviction, the government must

submit sufficient evidence to prove that (1) a conspiracy existed, (2) the appellants voluntarily entered into the

conspiracy, and (3) the members of the conspiracy conspired to prevent by force, intimidation or threat, an officer of

the United States from discharging her duties”).

126

The punishment for an offense under this section is (1) in the case of a killing, the punishment provided in sections

1111 and 1112; (2) in the case of an attempted killing, or a case in which the offense was committed against a petit

juror and in which a class A or B felony was charged, imprisonment for not more than 20 years, a fine under this title,

or both; and (3) in any other case, imprisonment for not more than 10 years, a fine under this title, or both,” 18 U.S.C.

1503(b).

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felony punishable by death, life imprisonment or a maximum term of imprisonment of at least

twenty-five years.127 If the offense involves a murder, it is punishable in the same manner as an

offense under 18 U.S.C. 1111, that is, by death or imprisonment for any term of years or for life.

In something of a curiosity, if the offense involves manslaughter it is punishable in the same

manner as an offense under 18 U.S.C. 1112, that is, by imprisonment for not more than 10 years

in the case of voluntary manslaughter and not more than 6 years in the case of involuntary

manslaughter. As a consequence, the penalty for a violation of §1503 that involves voluntary

manslaughter is no more severe than for a violation that does not involve a killing (10 years) and

less severe (6 years) if the killing is involuntary manslaughter. Each of the offenses other than

murder is also subject to a fine of not more than $250,000 (not more than $500,000 for an

organization).128

A conspiracy in violation of §372 is punishable by imprisonment for not more than 6 years and a

fine of $250,000 (or $500,000 if the defendant is an organization).129

Auxiliary Offenses and Liability

Conspiracy to violate §1503 can also be prosecuted under the general conspiracy statute, 18

U.S.C. 371.130 Section 1503 offenses are RICO predicate offenses and consequently are money

laundering predicate offenses.131 Those who aid and abet a §1503 offense are liable as principals

and are punishable as if they committed the offense themselves.132 An individual who knows that

another has committed a §1503 offense and nevertheless assists the offender in order to hinder his

capture, trial, or punishment is in turn punishable as an accessory after the fact.133 And an

individual who affirmatively conceals the commission of a §1503 offense by another is guilty of

misprision.134

Section 1503 contains no explicit statement of extraterritorial application. Nevertheless, the

courts seem likely to conclude that overseas misconduct in violation of §1503 may be prosecuted

in this country.135

127

18 U.S.C. 3559.

18 U.S.C. 1503(b), 1111, 1112, 3571.

129

18 U.S.C. 372.

130

E.g., United States v. Bruno, 383 F.3d 65, 87-88 (2d Cir. 2004).

131

18 U.S.C. 1961, 1956(c)(7)(A). E.g., United States v. Connolly, 341 F.3d 16, 19 (1st Cir. 2003)(Section 1503

offenses as RICO predicates).

132

18 U.S.C. 2.

133

18 U.S.C. 3.

134

18 U.S.C. 4.

135

Cf., United States v. Bowman, 260 U.S. 94, 98 (1922)(“But the same rule of interpretation [of purely domestic

application] should not be applied to criminal statutes which are, as a class, not logically dependent on their locality for

the government’s jurisdiction, but are enacted because of the right of the government to defend itself against

obstruction, or fraud wherever perpetrated. . .. We cannot suppose that when Congress enacted the [fraud] statute or

amended it, it did not have in mind that a wide field for such fraud upon the government was in private and public

vessels of the United States on the high seas and in foreign ports and beyond the land jurisdiction of the United States,

and therefore intend to include them in the subsection”); Ford v. United States, 273 U,.S. 593, 623 (1927) (“a man who

outside of a country willfully puts in motion a force to take effect in it is answerable at the place where the evil is

done”).

128

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Subsection 1512(i) establishes venue for prosecution under §1512 or §1503 in any district where

the obstruction occurs or where the obstructed proceeding occurs or is to occur. The subsection

was enacted to resolve a conflict among the circuits on the question of whether venue for a

prosecution of either of the two sections was proper in the district of the obstructed proceeding.136

Thereafter, the Supreme Court clarified venue’s constitutional boundaries when it declared that

venue is ordinarily only proper where a conduct element of the offense occurs,137 but left for

another day the question of whether venue might be proper in a district where the effect of the

offense is felt.138 The limited subsequent case law on the question has arisen under other statutes

and generally holds that the “effects” basis for venue remains valid “only when Congress had

defined the essential conduct elements in terms of those effects.”139

Obstructing Congressional or Administrative

Proceedings (18 U.S.C. 1505)

Section 1505 outlaws interfering with Justice Department civil investigative demands issued in

antitrust cases.140 However, it deals primarily with obstructing congressional or federal

administrative proceedings, condemning:

I. Whoever

II. A. corruptly, or

B. by threats or

136

United States v. Gonzalez, 922 F.2d 1044, 1054 (2d Cir. 1991); United States v. Allen, 24 F.3d 1180, 1183 (10th Cir.

1994).

137

United States v. Cabrales, 524 U.S. 1, 7-8 (1998); United States v. Rodriguez-Moreno, 526 U.S. 275, 280 (1999).

138

United States v. Rodriguez-Moreno, 526 U.S. at 279 n.2.

139

United States v. Clenney, 434 F.3d 780, 781-82 (5th Cir. 2005)(“The government argues that venue exists under the

terms of the [parental kidnaping] statute because ‘the intent to obstruct the lawful exercise of parental rights’ is an

element of the offense, and Carmichael’s parental rights were violated in the Northern District. We disagree, because

this element merely speaks to the offender’s mens rea as he commits the conduct essential to the crime; it is plainly not

an ‘essential conduct element’ as required by Rodriguez-Moreno”); United States v. Bowens, 224 F.3d 302, 314 (4th

Cir. 2000); United States v. Kim, 246 F.3d 186, 193 (2001); United States v. Bin Laden, 146 F.Supp.2d 373, 379-80

(S.D.N.Y. 2001).

The courts do not agree on whether the materiality element in §1001 constitutes a conduct element sufficient to make

venue proper in the place where the false statement has an impact, United States v. Oceanpro Industries, Ltd., 674 F.3d

323, 329-30 (4th Cir. 2012)(“Congress ... defined the effects in §1001 to include the element of materiality ... United

States v. Ringer, 300 F.3d 788, 792 (7th Cir. 2002)(‘Since the halting of the investigation against Ringers’ friends in the

Southern District of Indiana was evidence of the materiality of Ringer’s statements, venue was proper in the Southern

District of Indiana’); United States v. Salinas, 373 F.3d 161, 167 (1st Cir. 2004)”); but see United States v. Smith, 641

F.3d 1200, 1208 (10th Cir. 2011)(“Mr. Smith made his allegedly false statement in Minnesota.... [T]he only connection

between Oklahoma [where the government sought venue] and Mr. Smith’s statements is that the subject-matter of the

allegedly false statements relayed events that occurred in Oklahoma, and at the time there was an investigation in

Oklahoma”).

140

“Whoever, with intent to avoid, evade, prevent, or obstruct compliance, in whole or in part, with any civil

investigative demand duly and properly made under the Antitrust Civil Process Act, willfully withholds, misrepresents,

removes from any place, conceals, covers up, destroys, mutilates, alters, or by other means falsifies any documentary

material, answers to written interrogatories, or oral testimony, which is the subject of such demand; or attempts to do so

or solicits another to do so ... Shall be fined under this title, imprisoned not more than five years or, if the offense

involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both,”

18 U.S.C. 1505.

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C. force, or

D. by any threatening letter or communication

III. A. influences,

B. obstructs, or

C. impedes or

D. endeavors to

1. influence,

2. obstruct, or

3. impede

IV. A. 1. the due and proper administration of the law under which

2. any pending proceeding is being had

3. before any department or agency of the United States, or

B. 1. the due and proper exercise of the power of inquiry under which

2. any inquiry or investigation is being had

3. by

a. either House, or

b. any committee of either House or

c. any joint committee of the Congress

shall be fined under this title or imprisoned not more than 5 years (not more than 8 years if

the offense involves domestic or international terrorism), or both.141

Prosecutions under §1505 have been relatively few, at least until recently, and most of these arise

as obstructions of administrative proceedings.142 “The crime of obstruction of [such] proceedings

has three essential elements. First, there must be a proceeding pending before a department or

agency of the United States. Second, the defendant must be aware of the pending proceeding.

Third, the defendant must have intentionally endeavored corruptly to influence, obstruct or

impede the pending proceeding.”143

Perhaps due to the breadth of judicial construction, the question of what constitutes a pending

proceeding has arisen most often. Taken as a whole, the cases suggest that a “proceeding”

describes virtually any manner in which an administrative agency proceeds to do its business. The

District of Columbia Circuit, for example, has held that an investigation by the Inspector General

of the Agency for International Development may qualify as a “proceeding” for purposes of

§1505. In doing so, it rejected the notion “that §1505 applies only to adjudicatory or rule-making

activities, and does not apply to wholly investigatory activity.”144 Moreover, proximity to an

141

18 U.S.C. 1505. Under 18 U.S.C. 3571, felonies are punishable by a fine of not more than $250,000 (not more than

$500,000 if the offender is an organization).

142

E.g., United States v. Safavian, 528 F.3d 957, 967-68 (D.C. Cir. 2008); United States v. Kay, 513 F.3d 432, 454 (5th

Cir. 2007); United States v. Blackwell, 459 F.3d 739, 761 (6th Cir. 2006); United States v. Quattrone, 441 F.3d 153, 174

(2d Cir. 2006); United States v. Bhagat, 436 F.3d 1140, 1146 (9th Cir. 2006).

143

United States v. Price, 951 F.2d 1028, 1031 (9th Cir. 1991), citing United States v. Sutton, 732 F.2d 1483, 1490 (10th

Cir. 1984) and United States v. Laurins, 857 F.2d 529, 536-37 (9th Cir. 1988); see also United States v. Warshak, 631,

F.3d 266, 325 (6th Cir. 2010); United States v. Blackwell, 459 F.3d 739, 761-62 (6th Cir. 2006); United States v.

Quattrone, 441 F.3d 153, 174 (2d Cir. 2006); United States v. Bhagat, 436 F.3d 1140, 1147 (9th Cir. 2006); United

States v. Kay, 513 F.3d 432, 454 (5th Cir. 2007).

144

United States v. Kelley, 36 F.3d 1118, 1127 (D.C.Cir. 1994). The court also observed that “other courts have held

that agency investigative activities are proceedings within the scope of [section] 1505. In those cases, the investigations

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agency’s adjudicatory or rule-making activities, such as auditors working under the direction of

an officer with adjudicatory authority, has been used to support a claim that an obstructed agency

activity constitutes a proceeding.145 The courts seem to see comparable breadth in the

congressional equivalent (“obstructing the due and proper exercise of the power of inquiry” by

Congress and its committees).146

In the case of either congressional or administrative proceedings, §1505 condemns only that

misconduct which is intended to obstruct the administrative proceedings or the due and proper

exercise of the power of inquiry.147 In order to overcome judicially identified uncertainty as to the

intent required,148 Congress added a definition of “corruptly” in 1996: “As used in §1505, the

term ‘corruptly’ means acting with an improper purpose, personally or by influencing another,

including making a false or misleading statement, or withholding, concealing, altering, or

destroying a document or other information,” 18 U.S.C. 1515(b). Examples of the type of conduct

that have been found obstructive vary.149

(...continued)

typically have involved agencies with some adjudicative power, or with the power to enhance their investigations

through the issuance of subpoenas or warrants,” id.

145

United States v. Quattrone, 441 F.3d 153, 175 (2d Cir. 2006)(“Quattrone’s Brief could be read as raising a

distinction between the informal and formal stages of the SEC investigation and whether criminal liability for

obstructing an agency ‘proceeding’ can only arise in the context of the latter. In our view, that argument comes up

short”); United States v. Technic Services, Inc., 314 F.3d 1031, 1044 (9th Cir. 2002)(“However, the record shows that

TSI’s conduct, while removing the asbestos at the pulp mill, was under investigation by the EPA at the relevant time ...

An investigation into a possible violation of the Clean Air Act or Clean Water Act, which could lead to a civil or

criminal proceedings is a kind of proceeding”); United States v. Leo, 941 F.2d 181, 198-99 (3d Cir. 1991)(“the

government ... argues that the agency that Badolate obstructed acted under the direction of the Army’s contracting

officer, who had the authority to make adjudications on behalf of the Defense Department.... Other courts of appeals

have broadly construed the term ‘proceeding’ as that term is used in §1505. The Sixth Circuit, in United States v.

Fruchtman, 421 F.2d 1019, 1021 (6th Cir. 1970) rejected the contention that the word ‘proceedings’ refers only to those

steps before a federal agency that are judicial or administrative in nature. The Tenth Circuit, in United States v.

Browning, Inc., 572 F.2d 720, 724 (10th Cir. 1978), wrote: ‘In sum, the term proceeding is not ... limited to something

in the nature of a trial. The growth and expansion of agency activities have resulted in a meaning being given to

proceeding which is more inclusive and which no longer limits itself to formal activities in a court of law. Rather, the

investigation or search for the true facts ... is not to be ruled as a non-proceeding simply because it is preliminary to

indictment and trial.’ See also ... Rice v. United States, 356 F.2d 709, 712 (8th Cir. 1966)(‘Proceedings before a

governmental department or agency simply mean proceeding in the manner and form prescribed for conducting

business before the department or agency ... ’). Given the broad meaning of the word ‘proceeding’ and the Defense

Contract Audit Agency’s particular mission, we agree with the government that when Badolate obstructed Stern’s

search for the true purchase order dates, Badolate obstructed a proceeding within the meaning of §1505”).

146

United States v. Mitchell, 877 F.2d 294, 300-301 (4th Cir. 1989)(“The question of whether a given congressional

investigation is a ‘due and proper exercise of the power of inquiry’ for purposes of [section] 1505 cannot be answered

by a myopic focus on formality. Rather, it is properly answered by a careful examination of all the surrounding

circumstances. If it is apparent that the investigation is a legitimate exercise of investigative authority by a

congressional committee in an area within the committee’s purview, it should be protected by [section] 1505. While

formal authorization is certainly a factor that weighs heavily in this determination, its presence or absence is not

dispositive. To give [section 1505] the protective force it was intended, corrupt endeavors to influence congressional

investigations must be proscribed even when they occur prior to formal committee authorization”).

147

United States v. Leo, 941 F.2d 181, 199 (3d Cir. 1991); United States v. Mitchell, 877 F.2d at 299; United States v.

Laurins, 857 F.2d 529, 536-37 (9th Cir. 1988).

148

United States v. Poindexter, 951 F.2d 369 (D.C.Cir. 1991)(holding that ambiguity of the term “corruptly” in the

context of 1505 rendered it unconstitutionally vague at least when applied to false statements made directly to

Congress).

149

United States v. Blackwell, 459 F.3d 739, 761 (6th Cir. 2006)(submission of inaccurate information pursuant to an

Securities and Exchange Commission subpoena); United States v. Bhagat, 436 F.3d 1140, 1149 (9th Cir. 2006) (false

(continued...)

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Section 1505 offenses are not RICO or money laundering predicate offenses.150 Section 1505 has

neither separate conspiracy provision nor an explicit exterritorial jurisdiction provision. However,

conspiracy to obstruct administrative or congressional proceedings may be prosecuted under 18

U.S.C. 371,151 and the courts would likely find that overseas violations of §1505 may be tried in

this country.152 Moreover, the general aiding and abetting, accessory after the fact, and misprision

statutes are likely to apply with equal force in the case of obstruction of an administrative or

congressional proceeding.153

Retaliating Against Federal Witnesses

(18 U.S.C. 1513)

Congress outlawed retaliation against federal witnesses under §1513 at the same time it outlawed

witness tampering under §1512.154 Although somewhat more streamlined, §1513 shares a number

of attributes with §1512. The definitions in §1515 apply to both sections.155 Consequently, the

prohibitions apply to witnesses in judicial, congressional, and administrative proceedings.156

There is extraterritorial jurisdiction over both offenses.157 In slightly different terms, both protect

witnesses against murder and physical abuse—committed, attempted, conspired, or threatened.

Offenses under the two are comparably punished.

(...continued)

statements to SEC investigators); United States v. Technic Services, Inc., 314 F.3d 1031, 1044 (9th Cir. 2002)

(tampering with air monitoring devices during an Environmental Protection Agency investigation); United States v.

Kelley, 36 F.3d 1118, 1127-128 (D.C.Cir. 1994)(enlisting others to lie to AID Inspector General’s Office investigators);

United States v. Price, 951 F.2d 1028, 1031 (9th Cir. 1991)(using threats to avoid an interview with IRS officials);

United States v. Leo, 941 F.2d 181, 198 (3d Cir. 1991)(making false statements to a Defense Department auditor);

United States v. Schwartz, 924 F.2d 410 (2d Cir. 1991)(lying to Customs Service officials); United States v. Mitchell,

877 F.2d 294, 299-300 (4th Cir. 1989)(endeavoring to use family relationship to obstruct a congressional investigation);

United States v. Laurins, 857 F.2d 529, 536-37 (9th Cir. 1988)(submitting false documentation in response to an IRS

subpoena).

150

18 U.S.C. 1961(1), 1956(c)(7).

151

E.g., United States v. Warshak, 631 F.3d 266, 325 (6th Cir. 2010); United States v. Blackwell, 459 F.3d 739, 748 (6th

Cir. 2006).

152

Cf., United States v. Bowman, 260 U.S. 94, 98 (1922)(“We cannot suppose that when Congress enacted the [fraud]

statute or amended it, it did not have in mind that a wide field for such fraud upon the government was in private and

public vessels of the United States on the high seas and in foreign ports and beyond the land jurisdiction of the United

States, and therefore intend to include them in the section”); Ford v. United States, 273 U,.S. 593, 623 (1927) (“a man

who outside of a country willfully puts in motion a force to take effect in it is answerable at the place where the evil is

done”).

153

18 U.S.C. 2, 3, 4. E.g., United States v. Leo, 941 F.2d 181, 184 (3d Cir. 1991).

154

P.L. 97-291, 96 Stat. 1249, 1250 (1982).

155

18 U.S.C. 1515(a).

156

18 U.S.C. 1515(a)(1)(“As used in sections 1512 and 1513 of this title and in this section—(1) the term ‘official

proceeding’ means—(A) a proceeding before a judge or court of the United States, a United States magistrate, a

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

States Claims Court, or a Federal grand jury; (B) a proceeding before the Congress; (C) a proceeding before a Federal

Government agency which is authorized by law; or (D) a proceeding involving the business of insurance whose

activities affect interstate commerce before any insurance regulatory official or agency or any agent or examiner

appointed by such official or agency to examine the affairs of any person engaged in the business of insurance whose

activities affect interstate commerce”).

157

18 U.S.C. 1512(h), 1513(d).

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Section 1513 prohibits witness or informant retaliation in the form of killing, attempting to kill,158

inflicting or threatening to inflict bodily injury, damaging or threatening to damage property,159

and conspiracies to do so.160

“The elements of an offense under 18 U.S.C. §1513 are (1) knowing engagement in conduct; (2)

either causing, or threatening to cause, bodily injury to another person; and (3) the intent to

retaliate for, inter alia, the attendance or testimony of a witness at an official proceeding.”161

It also prohibits economic retaliation against federal witnesses, but only witnesses in court

proceedings and only on criminal cases.162 It does not reach economic retaliation against

witnesses on the basis of information relating to the violations of supervised release, bail, parole,

or probation conditions.

To satisfy the assault prong of §1513, the government must prove that the defendant bodily

injured another in retaliation for the victim’s testimony or service as a federal informant.163 The

158

“(a) Whoever kills or attempts to kill another person with intent to retaliate against any person for—(A) the

attendance of a witness or party at an official proceeding, or any testimony given or any record, document, or other

object produced by a witness in an official proceeding; or (B) providing to a law enforcement officer any information

relating to the commission or possible commission of a Federal offense or a violation of conditions of probation

supervised release, parole, or release pending judicial proceedings—shall be punished as provided in paragraph (2). (2)

The punishment for an offense under this subsection is—(A) in the case of a killing, the punishment provided in

sections 1111 and 1112; and (B) in the case of an attempt, imprisonment for not more than 30 years.... (c) If the

retaliation occurred because of attendance at or testimony in a criminal case, the maximum term of imprisonment

which may be imposed for the offense under this section shall be the higher of that otherwise provided by law or the

maximum term that could have been imposed for any offense charged in such case,” 18 U.S.C. 1513(a),(c).

159

“(b) Whoever knowingly engages in any conduct and thereby causes bodily injury to another person or damages the

tangible property of another person, or threatens to do so, with intent to retaliate against any person for—(1) the

attendance of a witness or party at an official proceeding, or any testimony given or any record, document, or other

object produced by a witness in an official proceeding; or (2) any information relating to the commission or possible

commission of a Federal offense or a violation of conditions of probation, supervised release, parole, or release pending

judicial proceedings given by a person to a law enforcement officer; or attempts to do so, shall be fined under this title

or imprisoned not more than 20 years, or both. (c) If the retaliation occurred because of attendance at or testimony in a

criminal case, the maximum term of imprisonment which may be imposed for the offense under this section shall be the

higher of that otherwise provided by law or the maximum term that could have been imposed for any offense charged

in such case,” 18 U.S.C. 1513(b),(c).

160

“Whoever conspires to commit any offense under this section shall be subject to the same penalties as those

prescribed for the offense the commission of which was the object of the conspiracy,” 18 U.S.C. 1513(f). Conspiracy to

violate §1513 may be prosecuted alternatively under 18 U.S.C. 371, e.g., United States v. Templeman, 481 F.3d 1263,

1264 (10th Cir. 2007). In either case, a conspirator is liable for a violation of §1513 committed by a co-conspirator in

foreseeable furtherance of their common scheme, United States v. Wardell, 591 F.3d 1279, 1291 (10th Cir. 2009).

161

United States v. Henderson, 626 F.3d 326, 342 (6th Cir. 2010), quoting, United States v. Cofield, 11 F.3d 413, 419

(4 Cir. 1993); see also United States v. Wardell, 591 F.3d 1279, 1291 (10th Cir. 2009).

162

“(e) Whoever knowingly, with the intent to retaliate, takes any action harmful to any person, including interference

with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful

information relating to the commission or possible commission of any Federal offense, shall be fined under this title or

imprisoned not more than 10 years, or both,” 18 U.S.C. 1513(e). The placement of subsection 1513(c)—after violent

proscriptions of subsections 1513(a) and 1513(b), but before the economic retaliation proscription of subsection

1513(e)—may raise some question over whether subsection(c) provides an alternative sentencing provision for

subsection 1513(f). Subsection 1513(c) states, “If the retaliation occurred because of attendance at or testimony in a

criminal case, the maximum term of imprisonment which may be imposed for the offense under this section shall be the

higher of that otherwise provided by law or the maximum term that could have been imposed for any offense charged

in such case.”

163

United States v. Draper, 553 F.3d 174, 180 (2d Cir. 2009)(“[T]o sustain a witness retaliation charge, the government

must establish three elements: One, the defendant engaged in conduct that caused or threatened a witness with bodily

(continued...)

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extent of the injuries need not be extensive,164 nor in the case of a threat even carried out.165 In

fact, in the case of a threat, all that is required is the intent to communicate a retaliatory threat; it

matters not that the defendant neither planned nor had the ability to carry out the threat.166 As a

general rule, the intent to retaliate need not have been the sole motivation for the attack.167

Section 1513 offenses are RICO predicate offenses and consequently money laundering predicate

offenses.168 They are also violent offenses and therefore may result in the application of those

statutes in which the commission of a violent crime is an element or sentencing factor.169 Those

who aid and abet a §1513 offense are liable as principals and are punishable as if they committed

the offense themselves.170 An individual who knows another has committed a §1513 offense and

nevertheless assists the offender in order to hinder his capture, trial or punishment is in turn

punishable as an accessory after the fact.171 And an individual who affirmatively conceals the

commission of a §1513 by another is guilty of misprision.172

Conspiracy to Obstruct (18 U.S.C. 371)

If two or more persons conspire either to commit any offense against the United States or to

defraud the United States, or any agency thereof in any manner or for any purpose, and one

or more of such persons do any act to effect the object of the conspiracy, each shall be fined

under this title or imprisoned not more than five years, or both.173

Conspiracy to Defraud

Section 371 contains both a general conspiracy prohibition and a specific obstruction conspiracy

prohibition in the form of a conspiracy to defraud proscription. The elements of conspiracy to

(...continued)

injury; two, the defendant acted knowingly, with the specific intent to retaliate against the witness for information the

witness divulged to law enforcement authorities about a federal offense; and three, the officials to which the witness

divulged information were federal agents”); United States v. Tapia, 59 F.3d 1137, 1140 (11th Cir. 1995); United States

v. Bolen, 45 F.3d 140, 142 (7th Cir. 1995); United Sates v. Cofield, 11 F.3d 413, 419 (4th Cir. 1994); United States v.

Beliveau, 802 F.2d 553, 562 (1st Cir. 1986).

164

United States v. Cunningham, 54 F.3d 295, 299 (7th Cir. 1995).

165

United States v. Maggitt, 794 F.2d 590, 593-94 (5th Cir. 1986).

166

United States v. Stoker, 706 F.3d 643, 646-49 (5th Cir. 2013).

167

United States v. Molina, 407 F.3d 511, 529-30 (1st Cir. 2005)(“there is nothing in section 1513 that requires

retaliation to be the sole motive for a murder. As long as there is sufficient evidence from which the jury can infer that

retaliation was a substantial motivating factor behind the killing it does not matter that defendant may have had other

motives”).

168

18 U.S.C. 1961(1), 1956(c)(7)(A).

169

E.g., United States v. Caldwell, 433 F.3d 378, 384 (4th Cir. 2005)(conviction for violation of 18 U.S.C. 1513, 373

(solicitation to commit a crime of violence), and 1114 (attempted murder of an individual assisting federal officers or

employees).

170

18 U.S.C. 2. E.g., United States v. Wardell, 591 F.3d 1279, 1292 (10th Cir. 2009).

171

18 U.S.C. 3.

172

18 U.S.C. 4.

173

18 U.S.C. 371. For addition discussion see Twenty-Eighth Survey of White Collar Crime: Federal Criminal

Conspiracy, 50 AMERICAN CRIMINAL LAW REVIEW 989 (2013); CRS Report R41223, Federal Conspiracy Law: A Brief

Overview.

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defraud the United States are (1) an agreement of two more individuals; (2) to defraud the United

States; and (3) an overt act by one of the conspirators in furtherance of the scheme.174 The “fraud

covered by the statute ‘reaches any conspiracy for the purpose of impairing, obstructing or

defeating the lawful functions of any department of Government”175 by “deceit, craft or trickery,

or at least by means that are dishonest.”176 The scheme may be designed to deprive the United

States of money or property, but it need not be so; a plot calculated to frustrate the functions of a

governmental entity will suffice.177

Conspiracy to Commit a Substantive Offense

The elements of conspiracy to commit a substantive federal offense are “(1) an agreement to

engage in criminal activity, (2) one or more overt acts taken to implement the agreement, and (3)

the requisite intent to commit the substantive crime.”178 Conspirators must be shown to have

exhibited the same level of intent as required for the underlying substantive offense.179 The overt

174

United States v. Mubayyid, 658 F.3d 35, 52 (1st Cir. 2011)(internal citations omitted)(“Pursuant to [the defraud]

provision, the government was required to prove three elements: an agreement, the unlawful objective of the

agreement, and an overt act in furtherance of the agreement. The objective of the agreement is unlawful if it is for the

purpose of impairing, obstructing or defeating the lawful function of any department of the government ... through

deceit, craft, trickery, and dishonest means”); United States v. World Wide Moving, 411 F.3d 502, 516 (4th Cir. 2005);

United States v. Ballistrea, 101 F.3d 827, 832 (2d Cir. 1996). Although it seems at odds with the text of the statute and

the Supreme Court’s construction of the conspiracy to defraud prong of the statute, some appellate courts have

suggested that conviction requires an underlying substantive offense, see e.g., United States v. Durham, 645 F.3d 883,

893 (7th Cir. 2011)(“One element of a charge of conspiracy to defraud the United States, in violation of §371, is intent

to commit the substantive offense”).

175

Tanner v. United States, 483 U.S. 107, 128 (1987), citing Dennis v. United States, 384 U.S. 855, 861 (1966);

Glasser v. United States, 315 U.S. 60, 66 (1942); Hammerschmidt v. United States, 265 U.S. 182, 188 (1924); and

Haas v. Henkel, 216 U.S. 462, 479 (1910).

176

Hammerschmidt v. United States, 265 U.S. at 188 (“To conspire to defraud the United States means primarily to

cheat the Government out of property or money, but also means to interfere with or obstruct one of its lawful

governmental functions by deceit, craft or trickery, or at least by means that are dishonest”); Glasser v. United States,

315 U.S. at 66 (“The indictment charges that the United States was defrauded by depriving it of its lawful

governmental functions by dishonest means; it is settled that this is a ‘defrauding ... ’”); United States v. Coplan, 703

F.3d 46, 61 (2d Cir. 2013)(To prove conspiracy to defraud, “the Government must show (1) that the defendant entered

into an agreement (2) to obstruct a lawful function of the Government (3) by deceitful or dishonest means and (4) at

least one overt act in furtherance of the conspiracy”); United States v. Meredith, 685 F.3d 814, 822 (9th Cir. 2012).

177

Hammerschmidt v. United States, 265 U.S. at 188 (“It is not necessary that the government shall be subjected to

property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by

misrepresentation ... ”); United States v. Whiteford, 676 F.3d 348, 356 (3d Cir. 2012); United States v. World Wide

Moving, 411 F.3d 502, 516 (4th Cir. 2005); United States v. Goldberg, 105 F.3d 770, 773 (1st Cir. 1997); United States

v. Ballistrea, 101 F.3d 827, 832 (2d Cir. 1996) (internal citations omitted) (This “provision ‘not only reaches schemes

which deprive the government of money or property, but also is designed to protect the integrity of the United States

and its agencies’”); United States v. Dean, 55 F.3d 640, 647 (D.C. Cir. 1995)(internal citations omitted)(If “the

government’s evidence showed that Dean conspired to impair the functioning of the department of the Housing and

Urban Development, ‘no other form of injury to the Federal Government need be established for the conspiracy to fall

under §371’”).

178

United States v. Grasso, 724 F.3d 1077, 1086 (9th Cir. 2013); see also United States v. Mathis, 738 F.3d 719, 735

(6 Cir. 2013); United States v. McDonough, 727 F.3d 143, 156 (1st Cir. 2013); United States v. Read, 710 F.3d 219,

226 (5th Cir. 2012); United States v. McNair, 605 F.3d 1152, 1195 (11th Cir. 2010); United States v. Mohamed, 600

F.3d 1000, 1007 (8th Cir. 2010); United States v. Wardell, 591 F.3d 1279, 1287 (10th Cir. 2009).

179

United States v. Feola, 420 U.S. 671, 686 (1975); United States v. Caira, 737 F.3d 455, 463-64 (7th Cir. 2013);

United States v. Njoku, 737, F.3d 55, 68 (5th Cir. 2013); United States v. Deffenbaugh, 709 F.3d 266, 272 (4th Cir.

2013); United States v. Rodriguez-Adorno, 695 F.3d 32, 41-2 (1st Cir. 2012); United States v. Weeks, 653 F.3d 1188,

1202 (10th Cir. 2011).

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act need only be furtherance of the scheme; it need not be the underlying substance offense or

even a crime at all.180 Conspirators are liable for the underlying offense should it be accomplished

and for any reasonably foreseeable offense committed by a coconspirator in furtherance of the

common plot.181

As noted earlier, a number of federal statues, §§1512 and 1513 among them, include within their

proscriptions a separate conspiracy feature that outlaws plots to violate the section’s substantive

provisions.182 The advantage for prosecutors of these individual conspiracy provisions is that they

carry the same penalties as the underlying substantive offense and that they ordinarily do not

require proof of an overt act.183 Although §§1512 and 1513 provide an alternative means of

prosecuting a charge of conspiracy to violate their underlying prohibitions, the government may

elect to proceed under general conspiracy statute, 18 U.S.C. 371.

Contempt

Contempt of Court

The oldest of the general obstruction provisions is contempt. The crime of contempt of court

comes to us from antiquity. Blackstone speaks of the power to punish disturbances in the presence

of the king’s courts that existed before the Conquest,184 and he notes that the common law

classified as contempt the failing to heed the writs or summons of the king or his courts of

justice.185 The first Congress empowered the federal courts “to punish by fine or imprisonment, at

the discretion of said courts, all contempts of authority in any cause or hearing.”186

Contemporary federal contempt is derived from statute, rule, and inherent or auxiliary authority.

Section 401 of title 18 of the United States Code notes the power of a federal court to punish by

fine or imprisonment misconduct committed in the presence of the court or by its officers and

disobedience of its orders.187 Rule 42 of the Federal Rules of Criminal Procedure supplies

180

United States v. Read, 710 F.3d 219, 226 (5th Cir. 2012); United States v. Soy, 454 F.3d 766, 768 (7th Cir. 2006);

United States v. May, 359 F.3d 683, 694 n.18 (4th Cir. 2004); United States v. Lukens, 114 F.3d 1220, 1222 (D.C. Cir.

1997); cf., Braverman v. United States, 317 U.S. 49, 53 (1942).

181

Pinkerton v. United States, 328 U.S. 640, 646-48 (1946); United States v. Alaniz, 726 F.3d 586, 614 (5th Cir. 2013);

United States v. Grosso, 724 F.3d 1077, 1089 (9th Cir. 2013); United States v. Ali, 718 F.3d 929, 941 (D.C.Cir. 2013).

182

E.g., 18 U.S.C. 1512(k)(“Whoever conspires to commit any offense under this subsection shall be subject to the

same penalties as those prescribed for the offense the commission of which was the object of the conspiracy”).

Subsection 1513(e) is similarly worded.

183

Where Congress enacts a conspiracy provision without an explicit overt act requirement as in the Sherman Act,

conviction may be had without proof of an overt act, Whitfield v. United States, 543 U.S. 209, 212-14 (2005)

(construing 18 U.S.C. 1956(h)); United States v. Shabani, 513 U.S. 10, 14 (1994)(construing 21 U.S.C. 846).

184

IV BLACKSTONE, COMMENTARIES OF THE LAWS OF ENGLAND 124 (1769).

185

Id. at 122 (“Contempts against the prerogative may also be ... by disobeying the king’s lawful commands; whether

by writs issuing out of his courts of justice, or by a summons to attend his privy council, or by letters from the king to a

subject commanding him to return from beyond the seas. . .. Disobedience of any of these commands is a high

misprision and contempt”).

186

1 Stat. 83 (1789).

187

“A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of

its authority, and none other, as—(1) Misbehavior of any person in its presence or so near thereto as to obstruct the

administration of justice; (2) Misbehavior of any of its officers in their official transactions; (3) Disobedience or

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procedures to be followed in such cases, other than those dealt with summarily. Section 402

provides for a jury trial when the allegations of criminal contempt also constitute separate federal

or state criminal offenses.188

Criminal Contempt

Contempt may be civil or criminal. Civil contempt is coercive and remedial, calculated to compel

the recalcitrant to obey the orders of the court or to compensate an opponent aggrieved by the

failure to do so.189 Criminal contempt is punitive.190

A wide variety of obstructions of justice are punishable as criminal contempt of court. They

include:

(...continued)

resistance to its lawful writ, process, order, rule, decree, or command,” 18 U.S.C. 401.

188

“Any person, corporation or association willfully disobeying any lawful writ, process, order, rule, decree, or

command of any district court of the United States or any court of the District of Columbia, by doing any act or thing

therein, or thereby forbidden, if the act or thing so done be of such character as to constitute also a criminal offense

under any statute of the United States or under the laws of any State in which the act was committed, shall be

prosecuted for such contempt as provided in section 3691 of this title [relating to jury trials in criminal contempt cases]

and shall be punished by a fine under this title or imprisonment, or both. Such fine shall be paid to the United States or

to the complainant or other party injured by the act constituting the contempt, or may, where more than one is so

damaged, be divided or apportioned among them as the court may direct, but in no case shall the fine to be paid to the

United States exceed, in case the accused is a natural person, the sum of $1,000, nor shall such imprisonment exceed

the term of six months. This section shall not be construed to relate to contempts committed in the presence of the

court, or so near thereto as to obstruct the administration of justice, nor to contempts committed in disobedience of any

lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the name of,

or on behalf of, the United States, but the same, and all other cases of contempt not specifically embraced in this

section may be punished in conformity to the prevailing usages at law. For purposes of this section, the term “State”

includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the

United States,” 18 U.S.C. 402.

189

International Union, United Mine Workers v. Bagwell, 512 U.S. 821, 827-28 (1994); F.T.C. v. Trudeau, 579 F.3d

754, 769 (7th Cir. 2009)(internal citations omitted)(“Generally, civil contempt is remedial and for the benefit of the

complainant, while criminal contempt is punitive, to vindicate the authority of the court. In terms of monetary

sanctions, civil sanctions fall in two categories. They can compensate the complainant for his losses caused by the

contemptuous conduct. Or they can coerce the contemnor’s compliance with a court order. A coercive sanction must

afford the contemnor the opportunity to purge, meaning the contemnor can avoid punishment by complying with the

court order”); see also Ahearn v. International Longshore and Warehouse Union, Locals 21 and 4, 721 F.3d 1122,

1128-129 (9th Cir. 2013).

Civil contempt and other noncriminal judicial sanctions are beyond the scope of this report. A partial list of such

sanctions would include 28 U.S.C. 1927 (award cost expenses, attorney’s fees against attorneys who multiply

proceedings); 28 U.S.C. 1826 (recalcitrant witnesses); F.R.Civ.P. 11 (sanction a party or the party’s attorney for filing

groundless pleadings, motions or other papers); F.R.Civ.P. 16(f) (sanction a party or party’s attorney for failure to abide

by a pretrial order); F.R.Civ.P. 26(g) (sanction a party or party’s attorney for baseless discovery requests or objections);

F.R.Civ.P. 30(g) (award expenses caused by failure to attend a deposition or to serve a subpoena on a party to be

deposed); F.R.Civ.P. 37(d), (g) (award expenses when a party fails to respond to discovery requests or fails to

participate in the framing of a discovery plan); F.R.Civ.P. 41(b) (dismiss an action or claim of a party that fails to

prosecute, to comply with the Federal Rules or to obey an order of the court); F.R.Civ.P. 56(g) (award expenses or

contempt damages when a party presents an affidavit in a summary judgment motion in bad faith or for the purpose of

delay); F.R.App. P. 38 (power to award damages and costs for frivolous appeal).

190

In re Bradley, 588 F.3d 254, 263 (5th Cir. 2009)(“Imprisonment is an appropriate remedy for either civil or criminal

contempt, depending on how it is assessed, if the prison term is conditional and coercive, the character of the contempt

is civil; if it is backward-looking and unconditional it is criminal.... Similarly, a fine that punishes past conduct is

criminal, while a fine that accrues on an ongoing basis in response to noncompliance is civil”); see also Ahearn v.

International Longshore and Warehouse Union, Locals 21 and 4, 721 F.3d 1122, 1128-129 (9th Cir. 2013).

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•

disobedience of a court order to provide handwriting exemplars,191

•

violation of a temporary restraining order entered in unfair trade practices

action,192

•

unlawful disclosure by grand jurors of their vote or deliberations,193

•

asset transfer in violation of a bankruptcy court’s asset freeze order,194

•

refusing to testify before the grand jury,195

•

false statement to a probation officer,196

•

vulgar insults addressed to court,197

•

violation of a condition of supervised release,198

•

fraudulently sold business opportunities in violation of court-ordered Federal

Trade Commission consent decree,199

•

refusing to testify at trial,200

•

violation of restraining order prohibiting harassment of the bankruptcy court,201

•

violation of the court’s witness sequestration order,202

•

failure to appear at the supervised release revocation hearing,203

•

attorney’s repeated failure to follow court’s instructions relating to the conduct of

the trial,204

•

threatening jurors,205

•

retaliating against a witness in violation of the court’s restraining order,206

•

defendant’s contacting witnesses in violation of the court’s order.207

191

In re Solomon, 465 F.3d 114 (3d Cir. 2006).

United States v. Love, 449 F.3d 1154 (11th Cir. 2006).

193

United States v. Navarro-Vargas, 408 F.3d 1184 (9th Cir. 2005).

194

United States v. Brennan, 395 F.3d 59 (2d Cir. 2005).

195

Alwan v. Ashcroft, 388 F.3d 507 (5th Cir. 2004).

196

United States v. Loudon, 385 F.3d 795 (2d Cir. 2004).

197

United States v. Marshall, 371 F.3d 42 (2d Cir. 2004).

198

United States v. Smith, 344 F.3d 479 (6th Cir. 2003).

199

United States v. Ferrara, 334 F.3d 774 (2003).

200

United States v. Kimble, 305 F.3d 480 (6th Cir. 2002).

201

United States v. Mourad, 289 F.3d 174 (1st Cir. 2002).

202

F.J. Hanshaw Enterprises, Inc. v. Emerald River Development, Inc., 244 F.3d 1128 (9th Cir. 2001).

203

United States v. Bernardine, 237 F.3d 1279 (11th Cir. 2001).

204

United States v. Galin, 222 F.3d 1123 (9th Cir. 2000).

205

United States v. Rrapi, 175 F.3d 742 (9th Cir. 1999).

206

United States v. Rapone, 131 F.3d 188 (D.C. Cir. 1997).

207

United States v. Grisanti, 116 F.3d 984 (2d Cir. 1997).

192

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Criminal contempt comes in two forms, direct and indirect. Direct contempt involves misconduct

in the presence of the court and is punished to ensure the decorum of the court and the dignity of

the bench.208 Indirect contempt consists of those obstructions committed outside the presence of

the court.209 Direct contempt may be summarily punished; indirect contempt may not.210

Summary contempt. A court may summarily punish as direct criminal contempt under subsection

401(1) and Rule 42(b) of the Federal Rules of Criminal Procedure, “[m]isbehavior of any person

in its presence or so near thereto as to obstruct the administration of justice.”211 A witness who in

the presence of the court refuses to testify at trial may be summarily punished for contempt,212 as

may an individual who urinates on the courtroom floor in the presence of the court,213 or who

addresses the court or the jury in vulgar and insulting terms.214 The range of misbehavior

proscribed is narrow, however, because the procedural protections afforded the offender are few.

There is no indictment, no right to counsel, no trial, no hearing, no right to present exculpatory

evidence.215 There is only the intentional act or omission by the offender and the pronouncement

of punishment by the court.

The proximity of misconduct occurring “so near ... as to obstruct the administration of justice” is

a matter of physical proximity not proximity to the subject matter of the proceedings. Thus, the

misbehavior that may summarily be punished does not include misconduct occurring elsewhere

that has an adverse impact or potentially adverse impact on the judicial proceedings, such as the

208

United States v. Rangolan, 464 F.3d 321, 324 (2d Cir. 2006), citing International Union, United Mineworkers v.

Bagwell, 512 U.S. 821, 832 (1994); In re Troutt, 460 F.3d 887, 893 (7th Cir. 2006).

209

United States v. Rangolan, 464 F.3d 321, 325 (2d Cir. 2006).

210

International Union, United Mineworkers v. Bagwell, 512 U.S. 821, 832, 827 n.2 (1994); United States v. Britton,

731 F.3d 745, 749 (7th Cir. 2013).

211

18 U.S.C. 401(1). Rule 42(b) supplies the minimal procedural requirements, i.e., “Notwithstanding any other

provision of these rules, the court (other than a magistrate judge) may summarily punish a person who commits

criminal contempt in its presence if the judge saw or heard the contemptuous conduct and so certifies; a magistrate

judge may summarily punish a person as provided in 28 U.S.C. § 636(e). The contempt order must recite the facts, be

signed by the judge, and be filed with the clerk.” United States v. Moncier, 571 F.3d 593, 598 (6th Cir. 2009)(“The

elements of criminal contempt are (1) the defendant engaged in misbehavior, (2) that the misbehavior obstructed the

administration of justice, (3) that the misbehavior occurred in the presence of the court, and (4) that defendant acted

with intent to obstruct”).

212

United States v. Wilson, 421 U.S. 309, 314-15 (1975); Brown v. United States, 356 U.S. 148, 154-55 (1958). By the

same token, false statements cannot be punished as contempt unless they are so patently false that without reference to

any other evidence they constitute a clear refusal to testify rather than to deceive, United States v. Arredondo, 349 F.3d

310, 318 (6th Cir. 2003).

213

United States v. Perry, 116 F.3d 952, 956 (1st Cir. 1997).

214

In re Sealed Case, 627 F.3d 1235, 1237-238 (D.C.Cir. 2010); United States v. Marshall, 371 F.3d 42, 46 (2d Cir.

2004); United States v. Seale, 461 F.2d 345, 370 (7th Cir. 1972); United States v. Murphy, 326 F.3d 501, 504 (4th Cir.

2003); United States v. Browne, 318 F.3d 261, 266 (1st Cir. 2003); United States v. Rrapi, 175 F.3d 742,753-54 (9th Cir.

1999)(obscene outburst directed at jurors before they were polled). The court in each of these cases felt obliged to

explain how the misconduct at issue constituted an obstruction in the administration of justice.

215

United States v. Rangolan, 464 F.3d 321, 324 (2d Cir. 2006)(“Because the summary contempt sanction is not

subject to the usual requirements of a jury trial or notice and opportunity to be heard, summary contempt is a rule of

necessity, reserved for exception circumstances and a narrow category of contempt”), citing Harris v. United States,

382 U.S. 162, 164-65 (1965), and United States v. Marshall, 371 F.3d 42, 45 (2d Cir. 2004); see also United States v.

Arredondo, 349 F.3d 310, 317 (6th Cir. 2003); United States v. Oberhellmann, 946 F.2d 50, 53 (7th Cir.1991). The Sixth

Amendment right to a jury trial limits the term of imprisonment which a court may summarily impose to a maximum of

six months, United States v. Browne, 318 F.3d 261, 265 (1st Cir. 2003), citing Codispoti v. Pennsylvania, 318 F.3d 506,

511-12 (1974); United States v. Marshall, 371 F.3d 42, 48-9 (2d Cir. 2004); United States v. Linney, 134 F.3d 274, 280

(4th Cir. 1998).

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tardy arrival of an attorney at court,216 or a lawyer’s failure to present the court with a doctor’s

affidavit justifying his client’s absence,217 or a party’s efforts to influence a juror during breakfast

several floors removed from the courtroom,218 or a party’s failure to appear for depositions,219 or

encourage others to flood the court with e-mails.220 Each of these might be punished as criminal

contempt, but not summarily.

If not punished summarily, a person charged with criminal contempt is entitled under Rule 42(a)

to a statement of the essential facts underlying the charge, a reasonable opportunity to prepare a

defense, and notice of the time and place where the hearing is to occur.221 A person so charged is

also entitled to the assistance of counsel; to be prosecuted by a disinterested prosecutor; to

subpoena witnesses; to examine and cross-examine witnesses; to present a defense; to the benefit

of the privilege against self-incrimination and of the double jeopardy bar; and, if the contempt is

to be punished by a term of imprisonment of more than six months, to a jury trial.222 The right to

be prosecuted by the United States Attorney or some other neutral prosecutor is reinforced by the

Rule,223 but may be waived by the person charged.224 In the trial of criminal contempt in violation

of §401(1) that may not be punished summarily “the Government must establish beyond a

reasonable doubt: (1) misbehavior of a person, (2) which is in or near the presence of the Court,

(3) which obstructs the administration of justice, and (4) which is committed with the required

degree of criminal intent.”225

Misbehavior by court officers. Subsection 401(2) is cited most often for the proposition that

attorneys are not officers of the court for purposes of the subsection.226 Otherwise, it is seldom

prosecuted or cited.227

Violation of a court order. A court may punish as criminal contempt under subsection 401(3) and

the procedures outlined in Rule 42(a) of the Federal Rules of Criminal Procedure, “[d]isobedience

or resistance to its lawful writ, process, order, rule, decree, or command.”228 The conviction for

216

In re Smothers, 322 F.3d 438, 440 (6th Cir. 2003); In re Gates, 600 F.3d 333, 339 (4th Cir. 2010); United States v.

Peoples, 698 F.3d 185, 192 (4th Cir. 2012).

217

United States v. Cooper, 353 F.3d 161, 163-64 (2d Cir. 2003).

218

United States v. Rangolan, 464 F.3d 321, 327-28 (2d Cir. 2006) .

219

Smith v. Smith, 145 F.3d 335, 342 (5th Cir. 1998).

220

F.T.C. v. Trudeau, 606 F.3d 382, 390 (7th Cir. 2010).

221

F.R.Crim.P. 42(a)(1).

222

International Union, United Mine Workers v. Bagwell, 512 U.S. 821, 826-27 (1994); United States v. Dixon, 509

U.S. 688, 696 (1993); United States v. Glass, 361 F.3d 580, 590 n.13 (9th Cir. 2004); S.E.C. v. First Choice

Management Services, Inc., 678 F.3d 538, 544 (2012).

223

F.R.Crim.P. 42(a)(2)(“The court must request that the contempt be prosecuted by an attorney for the government,

unless the interest of justice requires the appointment of another attorney. If the government declines the request, the

court must appoint another attorney to prosecute the contempt”).

224

In re Reed, 161 F.3d 1311, 1317 (11th Cir. 1998).

225

United States v. Peoples, 698 F.3d 185, 189 (4th Cir. 2012).

226

E.g., Cammer v. United States, 350 U.S. 399, 407-8 (1956); F.J. Hanshaw Enterprises, Inc. v. Emerald River

Development Inc., 244 F.3d 1128, 1136 n.5 (9th Cir. 2001); United States v. Griffin, 84 F.3d 820, 832 n.8 (7th Cir.

1996).

227

But see United States v. Arredondo, 349 F.3d 310, 318-19 (6th Cir. 2003)(noting in passing that jurors and

veniremen are officers of the court for purposes of subsection 401(2)).

228

18 U.S.C. 401(3). United States v. Allen, 587 F.3d 246, 255 (5th Cir. 2009)(“[T]he elements of criminal contempt

under 18 U.S.C. §401(3) are (1) a reasonably specific order; (2) violation of the order; and (3) the willful intent to

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criminal contempt in a violation of subsection 401(3) requires the government to prove beyond a

reasonable doubt that the defendant willfully violated a reasonable specific court order.229

Obstruction of justice is not an element of the offense,230 but a willful intent is, which means that

the defendant must have known of the order and have deliberately or recklessly violated it.231

Mere negligence is not enough.232 A person may not be found in criminal contempt of an unclear

order of the court,233 but disobedience of an invalid order is nonetheless punishable as criminal

contempt.234

Although the double jeopardy bar applies to criminal contempt,235 it does not preclude the use of

civil contempt against an individual who has been convicted of criminal contempt of the same

recalcitrance nor prosecution of a criminal contempt charge after civil contempt has been

imposed.236 Moreover, the double jeopardy prohibition does not bar sequential prosecution of

criminal contempt and substantive offenses arising out of the same events.237

Unless summarily punished, sentencing for contempt begins with the Sentencing Guidelines.238

The guideline for contempt, however, is not always easily discerned. The Guidelines assign a

(...continued)

violate the order”); see also United States v. Hernandez, 600 F.3d 333, 338-39 (4th Cir. 2010).

229

Romero v. Drummond Co., Inc., 480 F.3d 1234, 1242 (11th Cir. 2007); United States v. Mourad, 289 F.3d 174, 180

(1st Cir. 2002); United States v. Ortlieb, 274 F.3d 871, 874 (5th Cir. 2001); Ashcraft v. Conoco, Inc., 218 F.3d 288, 295

(4th Cir. 2000); United States v. Vezina, 165 F.3d 176, 178 (2d Cir. 1999); United States v. Rapone, 131 F.3d 188, 192

(D.C. Cir. 1997); United States v. Doe, 125 F.3d 1249, 1254 (9th Cir. 1997).

230

United States v. Britton, 731 F.3d 745, 749 (7th Cir. 2013); United States v. Galin, 222 F.3d 1123, 1127 (9th Cir.

2000).

231

United States v. Allen, 587 F.3d 246, 255 (5th Cir. 2009)(“For a criminal contempt conviction to stand, the evidence

... must show both a contemptuous act and a willful, contumacious, or reckless state of mind.... ‘[W]illfulness’ in the

context of the criminal contempt statute at a minimum requires a finding of recklessness, which requires more than a

finding that an individual ‘reasonably should have known’ that the relevant conduct was prohibited”); see also In re

Kendall, 712 F.3d 814, 830-31(3d Cir. 2013); United States v. Ortlieb, 274 F.3d 871, 875 (5th Cir. 2001); United States

v. Marquardo, 149 F.3d 36, 43 n.4 (1st Cir. 1998); United States v. Themy-Kotronakis, 140 F.3d 858, 864 (10th Cir.

1998); United States v. Rapone, 131 F.3d 188, 195 (D.C. Cir. 1997).

232

United States v. Mottweiler, 82 F.3d 769, 772 (7th Cir. 1996).

233

Ashcroft v. Conoco, Inc., 218 F.3d 288, 299 (4th Cir. 2000).

234

Maness v. Meyers, 419 U.S. 449, 458 (1975); In re Criminal Contempt Proceedings Against Crawford, 329 F.3d

131, 138 (2d Cir. 2003); United States v. Mourad, 289 F.3d 174, 177-78 (1st Cir. 2002).

235

United States v. Dixon, 509 U.S. 688, 696 (1993). As a general matter the Constitution directs that no person shall

“be subject for the same offense to be twice put in jeopardy of the life or limb,” U.S. Const. Amend. V.

236

United States v. Lippitt, 180 F.3d 873, 879 (7th Cir. 1999); United States v. Marquardo, 149 F.3d 36, 41 (1st Cir.

1998).

237

United States v. Forman, 180 F.3d 766, 768-69 (6th Cir. 1999); United States v. Landerman, 109 F.3d 1053, 1068

(5th Cir. 1997). Of course, the same events may lead to prosecution under both section 401 and other obstruction

offenses, e.g., United States v. Henry, 519 F.3d 68, 71-74 (1st Cir. 2008); United States v. Senffner, 280 F.3d 755, 758

(7th Cir. 2002)(upholding convictions under 18 U.S.C. 401 and 1503 for transferring assets in violation of a courtordered asset freeze); United States v. Novak, 217 F.3d 566 (8th Cir. 2000)(upholding convictions under 18 U.S.C. 401

and 1503 for submitted false statements to the probation service).

238

In United States v. Booker, 543 U.S. 220, 245 (2005), the Supreme Court held unconstitutional but severable the

statutory provision that made the Sentencing Guidelines binding on federal courts. The results recommended by

application of the Guidelines remain one of several statutory factors which federal sentencing courts must consider, 18

U.S.C. 3553. In part because the other factors are very general while the Guidelines are very fact-specific, the

Guidelines continue to carry great weight, cf., Gall v. United States, 552 U.S. 38, 49-50 (2007)(“[A] district court

should begin all sentencing proceedings by correctly calculating the applicable Guidelines range. As a matter of

administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial

(continued...)

Congressional Research Service

Obstruction of Justice

specific guideline for most federal offenses. It assigns contempt to an obstruction of justice

guideline, U.S.S.G. §2J1.1. But §2J1.1 states in its entirety, “apply §2X5.1 (Other Offenses).” The

accompanying commentary does explain that the Sentencing Commission decided not to draft a

specific guideline for contempt because of the variety of misconduct that can constitute the

offense.239 It goes on to say that in some instances the general obstruction of justice guideline or

the theft guideline may be most analogous for violations of §401.240 Section 2X5.1 declares “[i]f

the offense is a felony for which no guideline expressly has been promulgated, apply the most

analogous offense guideline.” Federal appellate court decisions indicate that this “most

analogous” standard has been used to mirror the misconduct underlying the contempt conviction,

although with seemingly conflicting results in some instances.241

The Guidelines ordinarily operate beneath the maximum penalties established by statute. Section

401, however, speaks of neither a maximum term of imprisonment nor a maximum fine level. It

simply states that criminal contempt may be punished by imprisonment or by a fine or both. This

approach has implications for things like probation, special assessments, and terms of supervised

release that turn upon the maximum term of imprisonment associated with a particular offense.

Probation, for example, is unavailable to those charged with a Class A or B felony,242 special

assessments range from $5 to $100 depending on the classification of the offense for which an

individual is convicted,243 and the maximum permissible term of supervised release, if any, is

(...continued)

benchmark. The Guidelines are not the only consideration, however. Accordingly, after giving both parties an

opportunity to argue for whatever sentence they deem appropriate, the district judge should then consider all of the

§3553(a) factors to determine whether they support the sentence requested by a party. In so doing, he may not presume

that the Guidelines range is reasonable. He must make an individualized assessment based on the facts presented. If he

decides that an outside-Guidelines sentence is warranted, he must consider the extent of the deviation and ensure that

the justification is sufficiently compelling to support the degree of the variance. We find it uncontroversial that a major

departure should be supported by a more significant justification than a minor one. After settling on the appropriate

sentence, he must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the

perception of fair sentencing”); United States v. Miner, 544 F.3d 930, 932-33 (8th Cir. 2008)(affirming a sentence for

contempt which calculated the sentencing range under the Guidelines and then considered the other factors listed in

§3553(a)).

239

U.S.S.G §2J1.1, Commentary: Application Note 1.

240

Id.

241

E.g., United States v. Brennan, 395 F.3d 59, 72-4 (2d Cir. 2005)(application of the larceny guideline for violation of

a bankruptcy court’s asset freeze order “amounted to stealing money ... that should have gone to his victims or

creditors”); United States v. Ferrara, 334 F.3d 774, 777-78 (8th Cir. 2003)(application of the fraud guideline for

violation of court-ordered consent decree prohibiting activities relating to Federal Trade Commission Act offenses);

United States v. Kimble, 305 F.3d 480, 485-86 (6th Cir. 2002)(application of the accessory after the fact guideline for a

witness’s refusal to testify at a homicide trial); United States v. Jones, 278 F.3d 711, 716 (7th Cir. 2002)(application of

the failure of a material witness to appear for a witness’s refusal to testify before the grand jury and at trial); United

States v. Brady, 168 F.3d 574, 577-79 (1st Cir. 1999)(application of the obstruction of justice guideline for a witness’s

refusal to testify before the grand jury); United States v. Fisher, 137 F.3d 1158, 1167 (9th Cir. 1998)(application of the

failure to appear for judicial proceedings guideline to a violation of bail condition requiring attendance at judicial

proceedings); United States v. Versaglio, 85 F.3d 943, 949 (2d Cir. 1996)(application of the obstruction of justice

guideline to a witness’s refusal to testify at trial).

242

18 U.S.C. 3561(a)(1). A class A felony is an offense for which the maximum penalty is death or the maximum term

of imprisonment is life; a class B felony is an offense for which the maximum term of imprisonment is 25 years or

more, 18 U.S.C. 3559(a)(1), (2).

243

18 U.S.C. 3013.

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Obstruction of Justice

determined in many instances by whether the offender has been convicted of a Class A, B, C, D,

or E felony or a misdemeanor other than a petty offense.244

When the question has been raised, prosecutors have sometimes argued that criminal contempt

under §401 should be considered a class A felony, since it is punishable by any term of

imprisonment up to and including life imprisonment.245 Defendants have argued alternatively that

criminal contempt under §401 should be (1) considered neither felony nor misdemeanor nor petty

offense, or (2) classified according to the sentence imposed or the sentencing maximum the court

agrees to accept, as is done when the question is whether a contempt case must be tried before a

jury.246 The Ninth Circuit chose something of a middle ground and classified criminal contempt

according to the maximum sentence for the most analogous offense.247 The Eleventh Circuit, on

the other hand, concluded that contempt is sui generis and cannot accurately be classified as

either a felony or misdemeanor of any stripe.248

Civil Contempt

Civil contempt is coercive and compensatory rather than punitive.249 A court may hold an

individual or entity in civil contempt upon a showing that “(1) the alleged contemnor had notice

of the order, (2) the order was clear and unambiguous, (3) the alleged contemnor had the ability to

comply with the order, and (4) the alleged contemnor violated the order.”250 Coercive

imprisonment or daily fines must end when the contemnor complies or becomes unable to do

so.251 Compensatory contempt in the form of money judgment or other form of relief must be

related to the losses suffered as a consequence of violation of the order.252

244

18 U.S.C. 3583(b). Petty offenses are those misdemeanors and infractions other than class A misdemeanors, 18

U.S.C. 19; class A misdemeanors are those offenses for the maximum term of imprisonment is one year or less but

more than 6 months, 18 U.S.C. 3559(a)(6).

245

United States v. Love, 449 F.3d 1154, 1158 (11th Cir. 2006); United States v. Carpenter, 91 F.3d 1282, 1284 (9th Cir.

1996); see also United States v. Broussard, 611 F.3d 1069, 1071 (9th Cir. 2010) and United States v. Cohn, 586 F.3d

844, 846 (11th Cir. 2009)(each noting that the lower court had classed a contempt conviction as a Class A felony

because it had no statutory maximum penalty).

246

Id.

247

United States v. Broussard, 611 F.3d 1069, 1072 (9th Cir. 2010).

248

United States v. Cohn, 586 F.3d 844, 848 (11th Cir. 2009). The Eleventh Circuit found it unnecessary to decide the

question since any error committed when the lower court sentenced the defendant to incarceration for 45 days and a

five-year term of supervised release had been induced by the defendant, United States v. Love, 449 F.3d 1154, 1157

(11th Cir. 2006).

249

Ahearn v. International Longshore and Warehouse Union,721 F.3d 1122, 1128 (9th Cir. 2013); F.T.C. v. Leshin,

719 F.3d 1227, 1231 (11th Cir. 2013); Hawkins v. Dept. of Health and Human Services fo

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