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

Congressional research reportNov 5, 2010

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Obstruction of Congress: A Brief Overview of

Federal Law Relating to Interference with

Congressional Activities

(name redacted)

Senior Specialist in American Public Law

November 5, 2010

Congressional Research Service

7-....

www.crs.gov

RL34304

CRS Report for Congress

Prepared for Members and Committees of Congress

Obstruction of Congress

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). All but Section 1503 cover congressional activities.

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. 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. A good number of these apply in a congressional context.

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 RS22784, Obstruction of Congress: An Abridged Overview of Federal Criminal Laws

Relating to Interference with Congressional Activities. Both versions have been excerpted from

CRS Report RL34303, Obstruction of Justice: an Overview of Some of the Federal Statutes that

Prohibit Interference with Judicial, Executive, or Legislative Activities. Other excerpted portions

are also available as the following: CRS Report RS22783, Obstruction of Justice: An Abridged

Overview of Related Federal Criminal Laws; CRS Report 98-808, 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))............................................................ 14

Obstructing Congressional or Administrative Proceedings (18 U.S.C. 1505)........................ 16

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

Conspiracy to Obstruct (18 U.S.C. 371) .............................................................................. 20

Conspiracy to Defraud .................................................................................................. 20

Conspiracy to Commit a Substantive Offense................................................................ 21

Contempt of Congress......................................................................................................... 22

Statutory Contempt of Congress .................................................................................... 22

Inherent Contempt of Congress ..................................................................................... 27

Contempt of Court at Congressional Behest .................................................................. 28

Obstruction of Justice by Violence or Threat ............................................................................. 28

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

(18 U.S.C. 115)................................................................................................................ 28

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

Their Duties ..................................................................................................................... 31

Obstruction of Justice by Bribery .............................................................................................. 32

Bribery of Jurors, Public Officers, and Witnesses (18 U.S.C. 201) ....................................... 33

Obstruction by Mail or Wire Fraud (18 U.S.C. 1341, 1343, 1346)........................................ 35

Obstruction by Extortion Under Color of Official Right (18 U.S.C. 1951) ........................... 38

Obstruction of Investigations by Bribery (18 U.S.C. 1510(a)).............................................. 39

Obstruction of Justice by Destruction of Evidence..................................................................... 40

Obstruction of Investigations by Destruction of Evidence (18 U.S.C. 1519)......................... 40

Obstruction of Justice by Deception .......................................................................................... 43

Perjury Generally (18 U.S.C. 1621)..................................................................................... 44

Subornation of Perjury (18 U.S.C. 1622)............................................................................. 46

False Statements (18 U.S.C. 1001) ...................................................................................... 47

Obstruction of Justice as a Sentencing Factor (U.S.S.G. §3C1.1) ............................................... 50

Contacts

Author Contact Information ...................................................................................................... 54

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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 those that outlaw interference with congressional activities.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 All but §1503 apply to congressional activities. 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—congressional, judicial, 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

free standing 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, 1107 (8th ed. 2004).

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-Fifth Survey of White Collar Crime:

Obstruction of Justice, 47 AMERICAN CRIMINAL LAW REVIEW 847 (2010).

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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 or producing evidence for an investigation and 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 establish a crime under the [disclosure to a] ‘law enforcement officer’ section of the Act, the

government must prove that (1) the defendant killed or attempted to kill a person; (2) the

defendant was motivated by a desire to prevent the communication between any person and law

enforcement authorities concerning the commission or possible commission of an offense; (3) the

offense was actually a federal offense; and (4) the defendant believed that the person in (2) above

might communicate with the federal authorities.”11

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

related services, 18 U.S.C. 1515(c),12 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).13

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

anticipation of such proceedings is 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).

United States v. Rodriguez-Marrero, 390 F.3d 1, 13 (1st Cir. 2004); United States v. Sandstrom, 594 F.3d 634, 655

(8 Cir. 2010)(quoting Rodriguez-Marrero); United States v. Fowler, 603 F.3d 883, 887 (11th Cir. 2010)(“Thus, for the

government to prove a violation of §1512(a)(1)(C) it must show: (1) the defendant knowingly and willfully killed a

person; and (2) the defendant killed the person with the intent to prevent the communication of information relating to

the commission or possible commission of a federal offense”).

“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 State 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 (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)” ).

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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.14 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 or the disclosure of information to law

enforcement authorities.15

By virtue of subsection 1512(g), the government need not prove that a §1512 offender knew of

the federal status of the obstructed proceeding or investigation. 16 Thus, for instance, to prove an

information obstruction offense, it need show no more than that the offender intended to prevent

the flow of information to law enforcement authorities concerning a federal crime; it need not

demonstrate that the offender intended to prevent the disclosures to federal authorities.17

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.18

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

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 jurisdiction20 and find such an application compatible with the principles of

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

United States v. Fowler, 603 F.3d 883, 886-87 (11th Cir. 2010); United States v. Sandstrom, 594 F.3d 634, 655 (8th

Cir. 2010).

18 U.S.C. 1512(g)(“In a prosecution for an offense under this section, no state of mind need be proved with respect

to the circumstance—(1) that the official proceeding before a judge, court, magistrate judge, grand jury, or government

agency is before a judge or court of the United States, a United States magistrate judge, a bankruptcy judge, a Federal

grand jury, or a Federal Government agency; or (2) that the judge is a judge of the United States or that the law

enforcement officer is 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”).

United States v. Harris, 498 F.3d 278, 284-287 (4th Cir. 2007)(fire bombing the home of a witness who had

complained to local authorities about drug trafficking (trafficking is both a state and federal offense).

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

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

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international law. 21 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.22

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.23

Auxiliary Offenses and Liability

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

penalties as the underlying offense. The section serves as an alternative to a prosecution under 18

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

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.24

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

imply one under such circumstances.25 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.26

(...continued)

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

obstruction, or fraud wherever perpetrated. . .. We can not 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 that is the only nexus to an

obstruction committed within the United States in 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. 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.

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. Heras, 609 F.3d 101, 110-11 (2d Cir.

2010); United States v. Ashley, 606 F.3d 135, 143 (4th Cir. 2010); United States v. Merlino, 592 F.3d 22, 29 (1st Cir.

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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. 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.27 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.”28 It is also necessary to prove that

someone else committed the underlying offense.29

Section 3 outlaws acting as an accessory after the fact,30 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.”31 Prosecution requires the commission of an

underlying federal crime by someone else. 32 An offender cannot be both a principal and an

accessory after the fact to the same offense. 33 Offenders face sentences set at one half of the

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

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

$250,000).34

Although at first glance section 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.35 “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

(...continued)

2010).

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. Thompson, 610 F.3d 1335, 1338 (11th Cir.

2010); United States v. Bronzino, 598 F.3d 276, 278-79 (6th Cir. 2010); 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 of 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. Mercado, 610 F.3d 841, 846 (3d Cir. 2010); United States v. Perez-Melendez, 599 F.3d 31, 40 (1st

Cir. 2010); United States v. Liera, 585 F.3d 1237, 1246 (9th Cir. 2009).

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. 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. 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).

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”).

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failed to notify the authorities; and (4) defendant took steps to conceal the crime.”36 The offense

is punishable by imprisonment for not more than three years and/or a fine of not more than

$250,000.37

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

prohibited in 18 U.S.C. 373.38 “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.”39 Section 373 provides an affirmative statutory defense for one who prevents the

commission of the solicited offense. 40 Offenders face penalties set at one half of the sanctions for

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.41

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. The racketeering statutes (RICO) outlaw

acquiring or conducting the affairs of an interstate enterprise through a pattern of “racketeering

activity.”42 The commission of any of a series of state and federal crimes (predicate offenses)

constitutes a racketeering activity.43 Section 1512 offenses are RICO predicate offenses.44 RICO

violations are punishable by imprisonment for not more that 20 years (or imprisonment for life if

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).

18 U.S.C. 4, 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”). In United

States v. Fisher, 494 F.3d 5, 7-8 (1st Cir. 2007), the First Circuit upheld 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. Caldwell, 433 F.3d 378, 390 (4th Cir. 2005); United States v. White, 610 F.3d 956, 960 (7th Cir.

2010); United States v. Rahman, 189 F.3d 88, 125 (2d Cir. 1999).

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.”).

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).

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the predicate offense carries such a penalty), a fine of not more than $250,000 and the

confiscation of related property.45

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.”46 Any RICO predicate offense is by virtue of that

fact a specified unlawful activity, i.e., a money laundering predicate offense.47 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.48

A subsection 1512(a) offense is by definition a crime of violence. 49 Commission of a crime of

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

- 18 U.S.C. 25 (use of a child to commit a crime of violence), 50

- 521 (criminal street gang), 51

- 924(c)(carrying a firearm during and in relation to a crime of violence),52

- 929 (carrying a firearm with restricted ammunition during and in relation to a crime of

violence), 53

- 1028 (identity fraud in connection with a crime of violence).54

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

Influenced and Corrupt Organizations, 47 AMERICAN CRIMINAL LAW REVIEW 961 (2010); 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-Fifth Survey of

White Collar Crime: Money Laundering, 47 AMERICAN CRIMINAL LAW REVIEW 821 (2010); 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).

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).

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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 conduct55

2. toward another person,

III. with intent to

A. 1. a. influence,

b. delay, or

c. prevent

2. the testimony of any person

3. in an official proceeding, 56 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

“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).

“(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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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. federal judge or

b. federal law enforcement officer 57

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.58

“(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).

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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) with the intent to

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

congressional or other official federal proceedings or with the intent to prevent a witness from

cooperating with authorities in a matter relating to a federal offense. 59 It also bans any attempt to

so intimidate, threaten, or corruptly persuade. 60 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,61 the motive for persuasion,62 and the manner of obstruction.63 Prosecution for

obstructing official proceedings under subsection 1512(b)(2) will require proof that the defendant

intended to obstruct a particular proceeding.64 Prosecution for obstructing the flow of information

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).

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

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, (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, (3d Cir. 2006)(“there 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. Vampire Nation, 451 F.3d 189,

205 (3d Cir. 2006)(“We read this instruction as requiring the jury to find some connection—i.e., a nexus—between

(continued...)

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to law enforcement officials under subsection 1512(b)(3), on the other hand, apparently requires

of no such nexus.65 A subsection 1512(b)(3) investigation obstruction offense prosecution,

however, does require proof that “the offense in question was actually a federal offense and that

the defendant believed that the witness—toward whom the defendant engaged in [intimidating,

threatening, corruptly persuasive or] misleading conduct—might communicate with federal

authorities.”66 The defendant’s belief that a witness might confer with federal authorities can be

inferred from the nature of the offense and “additional appropriate evidence.”67

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.68 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)

(...continued)

Banks’s actions and an official proceeding in that Banks could not be convicted unless the jury found he intended to

persuade Do to impede an official proceeding, which official proceeding—given Do’s email regarding his subpoena—

Banks was well aware of”); 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 on going 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,

(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. Serrata, 425 F.3d 886, 898 (10th Cir. 2005); United States v. Guadalupe, 402 F.3d 409, 412 (3d Cir.

2005)(“To obtain a conviction pursuant to 18 U.S.C. 1512(b)(3), the government must prove that (1) the defendant

attempted to [intimidate, threaten, mislead or] corruptly persuade a person; (2) the defendant was motivated by a desire

to prevent the communication between that person and law enforcement authorities concerning the commission or

possible commission of an offense; (3) the offense was actually a federal offense; and (4) the defendant believed that

the person he attempted to [intimidate, threaten, mislead or] corruptly persuade might communicate with federal

authorities”).

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 a subsection 1512(a) prosecution (obstruction through murder or physical force)).

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”).

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corrupt persuasion prosecution.69 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.70

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, 71 and proscribes obstruction of congressional proceedings, or of federal

administrative or judicial proceedings, by destruction of evidence. 72

More specifically, subsection 1512(c) provides that

I. Whoever

II. corruptly

III. A.1.alters,

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

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).

E.g., United States v. Arbolaez, 450 F.3d 1283, 1286-287 (11th Cir. 2006)(when federal agents asked the defendant to

identify a cell phone they had seized in a drug trafficking investigation, the defendant “grabbed one of the phones,

ripped it apart and then he smashed it on the ground and tried to step on it. This made it impossible to retrieve numbers

and other information through the phone’s display.” The defendant was convicted of violating subsection 1512(c)).

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C. attempts to do so

shall be fined under this title or imprisoned not more than 20 years, or both.73

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. 74

As for the necessary nexus between the defendant’s destructive conduct and the obstructed

proceedings: “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.’”75

Like subsection 1512(a) and 1512(b) offenses, subsection 1512(c) offenses are RICO and money

laundering predicate offenses,76 and may provide the foundation for criminal liability as a

principal, accessory after the fact, conspirator, or one guilty of misprision.77 If the federal judicial,

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

States even if the destruction occurs overseas,78 the proceedings are yet pending,79 or the offender

is unaware of their federal character.80

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

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

until redesignated by Sarbanes-Oxley, and 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

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

United States v. Lucas, 499 F.3d 769, 781 (8th Cir. 2007).

United States v. Reich, 479 F.3d 179, 184 (2d Cir. 2007); United States v. Carson, 560 F.3d 566, 584 (6th Cir. 2009);

United States v. Phillips, 583 F.3d 1261, 1264-265(10th Cir. 2009).

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

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

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

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

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

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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.81

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

$250,000 (not more than $500,000 for organizations). 82 The subsection does not apply to

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

federal authorities. 83

Subsection 1512(d) harassment offenses are RICO and money laundering predicate offenses.84

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

apply with equal force to offenses under subsection 1512(d), 85 as do the provisions elsewhere in

§1512 relating to extraterritorial application,86 and abolition of the need to show pendency or

knowledge of the federal character of the obstructed proceedings or investigation. 87

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, 371, 1512(k).

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

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

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Obstructing Congressional or Administrative Proceedings

(18 U.S.C. 1505)

Section 1505 outlaws interfering with Justice Department civil investigative demands issued in

antitrust cases.88 However, it deals primarily with obstructing congressional or federal

administrative proceedings, condemning:

I. Whoever

II. A. corruptly, or

B. by threats or

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.89

Prosecutions under §1505 have been relatively few, at least until recently, and most of these arise

as obstructions of administrative proceedings.90 “The crime of obstruction of [such] proceedings

has three essential elements. First, there must be a proceeding pending before a department or

“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.

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).

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).

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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.”91

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.”92 Moreover, proximity to an

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.93 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).94

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. 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).

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

typically have involved agencies with some adjudicative power, or with the power to enhance their investigations

through the issuance of subpoenas or warrants,” id.

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”).

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 can not 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”).

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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.95 In order to overcome judicially-identified uncertainty as to the

intent required, 96 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 has been found obstructive vary.97

Section 1505 offenses are not RICO or money laundering predicate offenses.98 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. 371,99 and the courts would likely find that overseas violations of §1505 may be tried in

this country.100 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.101

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 §1512.102 Although somewhat more streamlined, §1513 shares a number

of attributes with §1512. The definitions in §1515 apply to both sections.103 Consequently, the

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).

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).

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

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).

18 U.S.C. 1961(1), 1956(c)(7).

E.g., United States v. Blackwell, 459 F.3d 739, 748 (6th Cir. 2006).

100

Cf., United States v. Bowman, 260 U.S. 94, 98 (1922)(“We can not 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”).

101

18 U.S.C. 2, 3, 4. E.g., United States v. Leo, 941 F.2d 181, 184 (3d Cir. 1991).

102

P.L. 97-291, 96 Stat. 1249, 1250 (1982).

103

18 U.S.C. 1515(a).

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prohibitions apply to witnesses in judicial, congressional, and administrative proceedings.104

There is extraterritorial jurisdiction over both offenses. 105 In slightly different terms, both protect

witnesses against murder and physical abuse—committed, attempted, conspired, or threatened.

Offenses under the two are comparably punished.

Section 1513 prohibits witness or informant retaliation in the form of killing, attempting to kill,106

inflicting or threatening to inflict bodily injury, damaging or threatening to damage property,107

and conspiracies to do so.108 It also prohibits economic retaliation against federal witnesses, but

only witnesses in court proceedings and only on criminal cases.109 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.

104

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”).

105

18 U.S.C. 1512(h), 1513(d).

106

“(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).

107

“(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).

108

“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).

109

“(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.”

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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.110 The

extent of the injuries need not be extensive, 111 nor in the case of a threat even carried out.112 As a

general rule, the intent to retaliate need not have been the sole motivation for the attack.113

Section 1513 offenses are RICO predicate offenses and consequently money laundering predicate

offenses.114 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.115 Those

who aid and abet a §1513 offense are liable as principals and are punishable as if they committed

the offense themselves.116 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.117 And an individual who affirmatively conceals the

commission of a §1513 by another is guilty of misprision.118

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.119

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

defraud the United States are: (1) an agreement of two more individuals; (2) to defraud the United

110

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

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).

111

United States v. Cunningham, 54 F.3d 295, 299 (7th Cir. 1995).

112

United States v. Maggitt, 794 F.2d 590, 593-94 (5th Cir. 1986).

113

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”).

114

18 U.S.C. 1961(1), 1956(c)(7)(A).

115

E.g., United Stats 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), 1114 (attempted murder of an individual assisting federal officers or

employees).

116

18 U.S.C. 2. E.g., United States v. Wardell, 591 F.3d 1279, 1292 (10th Cir. 2009).

117

18 U.S.C. 3.

118

18 U.S.C. 4.

119

18 U.S.C. 371. For addition discussion see Twenty-Fifth Survey of White Collar Crime: Federal Criminal

Conspiracy, 47 AMERICAN CRIMINAL LAW REVIEW 561 (2010); CRS Report R41223, Federal Conspiracy Law: A Brief

Overview.

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States; and (3) an overt act by one of conspirators in furtherance of the scheme. 120 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”121 by “deceit, craft or trickery,

or at least by means that are dishonest.”122 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.123

Conspiracy to Commit a Substantive Offense

The elements of conspiracy to commit a substantive federal offense are: “(1) an agreement

between two or more persons to commit a specified federal offense, (2) the defendant’s knowing

and willful joinder in that common agreement, and (3) some conspirator’s commission of an overt

act in furtherance of the agreement.”124 Conspirators must be shown to have exhibited the same

level of intent as required for the underlying substantive offense. 125 The overt act need only be

furtherance of the scheme; it need not be the underlying substance offense or even a crime at

all.126 Conspirators are liable for the underlying offense should it be accomplished and for any

120

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).

121

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).

122

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. Stewart, 590

F.3d 93, 109 (2d Cir. 2009)(“In order to establish a conspiracy-to-defraud-offense under 18 U.S.C. §371 as charged in

Count One of the indictment, a reasonable jury must have been able to conclude beyond a reasonable doubt ‘(1) [that

the defendants entered into an agreement (2) to obstruct a lawful function of the government [in this case the

administration and enforcement of SAMs] (3) by deceitful or dishonest means and (4) at least one overt act in

furtherance of the conspiracy’”).

123

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. 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’”); cf., United States v. Stewart, 590 F.3d at 109.

124

United States v. Snype, 441 F.3d 119, 142 (2d Cir. 2006); see alsoUnited States v. Agosto-Vega, 617 F.3d 541, 548

(1st Cir. 2010); United States v. Coleman, 609 F.3d 699, 703-704 (5th Cir. 2010); 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).

125

United States v. Feola, 420 U.S. 671, 686 (1975); United States v. Castro-Davis, 612 F.3d 53, 60 (1st Cir. 2010);

United States v. Wardell, 591 F.3d 1279, 1287 (7th Cir. 2006); United States v. Reed, 575 F.3d 900, 923 (9th Cir. 2009);

United States v. Carbo, 572 F.3d 112, 116 (3d Cir. 2009).

126

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).

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reasonably foreseeable offense committed by a coconspirator in furtherance of the common

plot.127

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.128 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.129 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 of Congress

Statutory Contempt of Congress

Contempt of Congress is punishable by statute and under the inherent powers of Congress. 130

Congress has not exercised its inherent contempt power for some time. 131 The statutory contempt

of Congress provision, 2 U.S.C. 192, has been employed only slightly more often and rarely in

recent years. Much of what we know of the offense comes from Cold War period court decisions.

Parsed to its elements, §192 states that

I. Every person

II. summoned as a witness

III. by the authority of either House of Congress

IV. to

A. give testimony, or

B. to produce papers

V. upon any matter under inquiry

127

Pinkerton v. United States, 328 U.S. 640, 646-48 (1946); United States v. Heras, 609 F.3d 101, 110-11 (2d Cir.

2010); United States v. Ashley, 606 F.3d 135, 143 (4th Cir. 2010); United States v. Merlino, 592 F.3d 22, 29 (1st Cir.

2010).

128

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.

129

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).

130

2 U.S.C. 192-196; Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821); McGrain v. Daugherty, 273 U.S. 135 (1927).

131

For a more extensive discussion of contempt of Congress see, CRS Report RL34097, Congress’s Contempt Power:

Law, History, Practice, and Procedure.

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VI. before

A. either House,

B. any joint committee,

C. any committee of either House

VII. who willfully

A. makes default, or

B. refuses

1. to answer any question

2. pertinent to the matter under inquiry

shall be guilty of a misdemeanor, punishable by a fine of not more than $1,000 or less than

$100 and imprisonment in a common jail for not less than one month nor more than twelve

months.132

The Dictionary Act states that, unless the context suggests otherwise when the term “person”

appears in the United States Code, it includes organizations as well. 133 Nevertheless, prosecution

appears to have been limited to individuals, although the custodians of organizational documents

have been charged. The term “summoned,” on the other hand, has been read broadly, so as to

extend to those who have been served with a testimonial subpoena, to those who have been

served with a subpoena to produce documents or other items (subpoena duces tecum), and to

those who have appeared without the benefit of subpoena.134

Section 192 applies only to those who have been summoned by the “authority of either House of

Congress.” As a consequence, the body which issues the subpoena must enjoy the authority of

either the House or Senate to do so, both to conduct the inquiry and to issue the subpoena.135

Authority may be vested by resolution, rule, or statute. Section 192 speaks only of the Houses of

Congress and their committees, but there seems little question that the authority may be conferred

upon subcommittees.136

The testimony or documents sought by the subpoena or other summons must be sought for “a

matter under inquiry” and in the case of an unanswered question, the question must be “pertinent

to the question under inquiry.”137 The statute outlaws “refusal” to answer pertinent questions, but

the courts have yet to say whether the proscription includes instances where the refusal takes the

form of false or deceptive testimony: There is no word on whether the section outlaws any refusal

to answer honestly or only unequivocal obstinacy. On at least two occasions, however, apparently

the courts have accepted nolo contendere pleas under §192 based upon a false statement

predicate.138

132

2 U.S.C. 192. By operation of 18 U.S.C. 3571 the maximum fine is $100,000 ($200,000 for organizations).

1 U.S.C. 1 (“In determining the meaning of any Act of Congress, unless the context indicates otherwise ... the words

‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock

companies, as well as individuals ... ”).

134

Sinclair v. United States, 279 U.S. 263, 296 (1929).

135

Gojack v. United States, 384 U.S. 702, 713 (1966); Sinclair v. United States, 279 U.S. 263, 296 (1929).

136

Gojack v. United States, 384 U.S. 702, 714 (1966)(“We do not question the authority of the Committee

appropriately to delegate functions to a subcommittee of its members, nor do we doubt the availability of §192 for

punishment of contempt before such a subcommittee in proper cases”).

137

Russell v. United States, 369 U.S. 749, 755-56 (1962), citing, Sinclair v. United States, 279 U.S. 263, 273 (1929).

138

Peterson, Prosecuting Executive Branch Officials for Contempt of Congress, 66 NEW YORK UNIVERSITY LAW

(continued...)

133

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Section 192 bans only “willful” recalcitrance. Thus, when a summoned witness interposes an

objection either to an appearance in response to the summons or in response to a particular

question, the objection must be considered, and if found wanting, the witness must be advised

that the objection has been overruled before he or she may be successfully prosecuted.139 The

grounds for a valid objection may be found in rule, statute, or the Constitution, and they may be

lost if the witness fails to raise them in a timely manner.140

The Fifth Amendment protects witnesses against self-incrimination. 141 The protection reaches

wherever incriminating testimonial communication is compelled whether in criminal proceedings

or elsewhere.142 It covers communications that are either directly or indirectly incriminating, but

only those that are “testimonial.”143 Organizations enjoy no Fifth Amendment privilege from selfincrimination,144 nor in most cases do the custodians of an organization’s documents unless their

act of producing the subpoenaed documents is itself an incriminating testimonial

communication. 145 An individual’s voluntarily created papers and records are by definition not

compelled communications and thus ordinarily fall outside the privilege as well.146 Moreover, the

(...continued)

REVIEW 563, 571 n.45 (1991)(“Richard Helms (former Director of the CIA) and Richard Kleindienst (former Attorney

General) were indicted for giving false testimony before Congress. Ultimately, each pleaded nolo contendere to

violations of 2 U.S.C. §192 ... See United States v. Helms, CR. No. 650 (D.D.C. 1977); United States v. Kleindienst,

CR No. 256 (D.D.C. 1974); Wash. Post, Nov. 1, 1977, at A4”); a former Counsel to the Clerk of the House described

the two cases in much the same way in House Judiciary Committee hearings, Prosecution of Contempt of Congress:

Hearing Before the Subcomm. on Administrative Law and Governmental Relations of the House Comm. on the

Judiciary, 98th Cong., 1st Sess. at 29 (1983)(prepared statement of Stanley Brand).

139

Flaxer v. United States, 358 U.S. 147, 151 (1958)(“In the Quinn case the witness was ‘never confronted with a

clear-cut choice between compliance and noncompliance, between answering the question and risking prosecution for

contempt.’ The rulings were so imprecise as to leave the witness to ‘guess whether or not the committee had accepted

his objection.’ ... We repeat what we said in the Quinn case: Giving a witness a fair apprisal of the committee’s ruling

on an objection recognizes the legitimate interests of both the witness and the committee.”), quoting, Quinn v. United

States, 349 U.S. 155, 166 (1955); Deutch v. United States, 367 U.S. 456, 468 (1961)(“‘Unless the subject matter has

been made to appear with undisputable clarity, it is the duty of the investigative body, upon objection of the witness on

grounds of pertinency, to state for the record the subject under inquiry at that time and the manner in which the

propounded questions are pertinent thereto’”), quoting, Watkins v. United States, 354 U.S. 178, 214-15 (1957).

140

McPhaul v. United States, 364 U.S. 372, 379 (1960); United States v. Bryan, 339 U.S. 323, 332-33 (1950).

141

U.S. Const. Amend. V (“No person ... shall be compelled in any criminal case to be a witness against himself ... ”).

142

Watkins v. United States, 354 U.S. 178, 195-96 (1957)(“It was during this period that the Fifth Amendment

privilege against self-incrimination was frequently invoked and recognized as legal limit upon the authority of a

committee to require that a witness answer its questions. Some early doubts as to the applicability of that privilege

before a legislative committee never matured. When the matter reached this Court, the Government did not challenge in

any way that the Fifth Amendment protection was available to the witness, and such a challenge could not have

prevailed”).

143

Ohio v. Reiner, 532 U.S. 17, 19 (2001)(“the privilege against self-incrimination applies where a witness’ answers

‘could reasonably furnish a link in the chain of evidence’ against him”), quoting, Hoffman v. United States, 341 U.S.

479, 486 (1951); United States v. Hubbell, 530 U.S. 27, 34 (2000)(“The word ‘witness’ in the constitutional text limits

the relevant category of compelled incriminating communications to those that are ‘testimonial’ in character”); Hibel v.

Sixth Judicial District Court, 542 U.S. 177, 189 (2004).

144

Braswell v. United States, 487 U.S. 99, 107-108 (1988).

145

Under the act of production doctrine, a custodian’s testimonial act of turning over documents in response to a

subpoena is entitled to Fifth Amendment protection if his action—by confirming the existence of the documents, or his

control of them, or his belief that they came within the description of the documents sought in the subpoena—would

incriminate him or provide a link in the chain leading to his incrimination, United States v. Hubbell, 530 U.S. 27, 36-38

(2000).

146

Fisher v. United States, 425 U.S. 391, 409-10 (1976); United States v. Doe, 465 U.S. 605, 611-12 (1984).

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protection may be waived if not invoked, 147 and the protection may be supplanted by a grant of

immunity which promises that the truthful testimony the witness provides or is compelled to

provide will not be used directly or derivatively in his or her subsequent prosecution.148

Aside from the Fifth Amendment, the status of constitutionally-based objections to a

congressional summons or question is somewhat more amorphous. The First Amendment affords

a qualified immunity from subpoena or interrogation, whose availability is assessed by balancing

competing individual and congressional interests.149 Although a subpoena or question clearly in

furtherance of a legislative purpose ordinarily carries dispositive weight, the balance may shift to

individual interests when the nexus between Congress’ legitimate purpose and the challenged

subpoena or question is vague or nonexistent.150 In cases of such imprecision, the government’s

assertion of the pertinence necessary for conviction of statutory contempt may become suspect.151

The Fourth Amendment may also supply the basis for a witness to disregard a congressional

subpoena or question. The Amendment condemns unreasonable governmental searches and

seizures.152 The Supreme Court in Watkins confirmed that witness in congressional proceedings

are entitled to Fourth Amendment protection, but did not explain what such protection entails.153

In fact, the courts have addressed only infrequently the circumstances under which the Fourth

Amendment cabins the authority of Congress to compel a witnesses to produce papers or

response to questions.

When dealing with the subpoenas of administrative agencies, the Court noted sometime ago that

the Fourth Amendment “at the most guards against abuse only by way of too much indefiniteness

or breadth in the things required to be ‘particularly described,’ if also the inquiry is one the

demanding agency is authorized by law to make and the materials specified are relevant. The gist

of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be

unreasonable.”154 At the same time, it pointed out that as in the case of a grand jury inquiry

probable cause is not a prerequisite for a reasonable subpoena.155 In later years, it explained that

where a grand jury subpoena is challenged on relevancy grounds, “the motion to quash must be

denied unless the district court determines that there is no reasonable possibility that the category

147

Hutcheson v. United States, 369 U.S. 599, 608-609 (1962); Emspak v. United States, 349 U.S. 190, 195-96 (1955).

18 U.S.C. 6001-6005 (immunity generally), particularly 18 U.S.C. 6005 (immunity in congressional proceedings);

Kastigar v. United States, 406 U.S. 441, 462 (1972)(upholding the constitutionality of the immunity statute).

149

Barenblatt v. United States, 360 U.S. 109, 126 (1959)(balancing the governmental interest in investigating

Communist activities in the United States against the witness’ interest in the confidentiality of his associations and

concluding “that the balance between the individual and the governmental interests here at stake must be struck in favor

of the latter, and that therefore the provisions of the First Amendment have not been offended”);.

150

Watkins v. United States, 354 U.S. 178, 196-206 (1957).

151

United States v. Rumely, 345 U.S. 41, 46-8 (1953); Watkins v. United States, 354 U.S. 178, 207-16 (1957).

148

152

U.S. Const. Amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated ... ”).

153

Watkins v. United States, 354 U.S. 178, 188 (1957)(Witnesses “cannot be subjected to unreasonable searches and

seizures”).

154

Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 208 (1946).

155

“The result therefore sustains the Administrator’s position that his investigative function, in searching out violations

with a view to securing enforcement of the Act, is essentially the same as the grand jury’s or the courts in issuing other

pretrial orders for discovery of evidence, and is governed by the same limitations. These are that he shall not act

arbitrarily or in excess of his statutory authority, but this does not mean that his inquiry must be limited by forecasts of

the probable result of the investigation,” Id. at 216 (internal quotation marks omitted); see also United States v. Powell,

379 U.S. 48, 57 (1964).

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of materials the Government seeks will produce information relevant to the general subject of the

grand jury’s investigation.”156 The administrative subpoena standard has been cited on the those

infrequent occasions when the validity of a congressional subpoena has been challenged on

Fourth Amendment grounds.157 Contempt convictions have been overturned, however, when a

Fourth Amendment violation taints the underlying subpoena or question.158

Perhaps most unsettled of all is the question the extent to which, if any, the separation of powers

doctrine limits the subpoena power of Congress over members and former members of the other

branches of government. As a practical matter, however, the other branches of government

ultimately control the prosecution and punishment for statutory contempt of Congress, at least

under the current state of the law. Section 194 states that the United States Attorney to whom

Congress refers a violation of §192 has a duty to submit the matter to the grand jury.159 Should a

grand jury indictment be forthcoming further prosecution is at the discretion of the Executive

Branch in proceedings presided over by the Judicial Branch.160

156

United States v. R. Enterprises, Inc., 498 U.S. 292, 301 (1991). Strictly speaking, R. Enterprises involves the

prohibition against “unreasonable or oppressive” subpoenas found in Rule 17(c) of the Federal Rules of Criminal

Procedure, a proscription no less demanding than the Fourth Amendment.

157

McPhaul v. United States, 364 U.S. 372, (1960)(“It thus appears that the records called for by the subpoena were not

‘plainly incompetent or irrelevant to any lawful purpose (of the Subcommittee) in the discharge of (its) duties,’ but, on

the contrary were reasonably ‘relevant to the inquiry.’ Finally, petitioner contends that the subpoena was so broad as to

constitute an unreasonable search and seizure in violation of the Fourth Amendment of the Constitution. ‘(A)dequacy

or excess in the breadth of the subpoena are matters variable in relation to the nature, purposes and scope of the inquiry.

The Subcommittee’s inquiry here was a relatively broad one ... and the permissible scope of materials that could

reasonably be sought was necessarily equally broad”), citing the Fourth Amendment standard for administrative

searches from Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 209 (1946). See also, Packwood v. Senate

Select Committee on Ethics, 510 U.S. 1319, 1320 (1994)(“As we stated in Oklahoma Press Publishing Co. v. Walling

determining whether a subpoena is overly broad ‘cannot be reduced to formula; for relevancy and adequacy or excess

in the breadth of the subpoena are matters variable in relation to the nature, purposes and scope the inquiry’”)(Ch. J.

Rehnquist denying the application for a stay pending appeal to the Court of Appeals of a District Court order enforcing

a congressional subpoena duces tecum)(internal citations omitted).

158

United States v. McSurely, 473 F.2d 1178, 1194 (D.C. Cir. 1972).

159

“Whenever a witness summoned as mentioned in Section 192 of this title fails to appear to testify or fails to produce

any books, papers, records, or documents, as required, or whenever any witness so summoned refuses to answer any

question pertinent to the subject under inquiry before either House, or any joint committee established by a joint or

concurrent resolution of the two Houses of Congress, or any committee or subcommittee of either House of Congress,

and the fact of such failure or failures is reported to either House while Congress is in session or when Congress is not

in session, a statement of fact constituting such failure is reported to and filed with the President of the Senate or the

Speaker of the House, it shall be the duty of the said President of the Senate or Speaker of the House, as the case may

be, to certify, and he shall so certify, the statement of facts aforesaid under the seal of the Senate or House, as the case

may be, to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its

action,” 2 U.S.C. 194.

Dicta in two District of Columbia District Court cases indicate that the United States Attorney was required to present

the matter to the grand jury, United States v. House of Representatives, 556 F.Supp. 150, 151 (D.D.C. 1983); Ex parte

Frankfeld, 32 F.Supp. 915, 916 (D.D.C. 1940). Between the two, however, the Court of Appeals for the District of

Columbia held to be discretionary the similar worded duty of the Speaker, when the House is not in session, to refer a

contempt citation to the United States Attorney, Wilson v. United States, 369 F.2d 198, 201-205 (D.C. Cir. 1966). It

may be argued that similarly worded duties should be similarly construed and that therefore the United States

Attorney’s duty to refer the case to the grand jury is likewise discretionary.

160

Rule 7(c)(1) of the Federal Rules of Criminal Procedure requires that indictments be signed by an attorney for the

government as a demonstration of the assent of the government to go forward without which a prosecution may not be

had, United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965); United States v. Wright, 365 F.2d 135, 137 (7th Cir. 1966).

See also Wayte v. United States, 470 U.S. 598, 607 (1985)(“So long as the prosecutor has probable cause to believe that

the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file

or bring before a grand jury, generally rests entirely in his discretion”).

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The rules governing the congressional hearing may also afford a witness the basis to object to a

congressional summons or interrogation and to defend against a subsequent prosecution for

violation of §192. No successful prosecution is possible if the congressional tribunal in question

has failed to follow its own rules to the witness’s detriment.161 Among other things those rules

may identify evidentiary privileges available to a witness. The evidentiary rules that control

judicial proceedings do not govern legislative proceedings,162 unless and to the extent they are

constitutionally required or have been made applicable by congressional rule and decision of the

tribunal. To the extent the rules or body issuing the subpoena afford a witness an attorney-client

or attorney work product protection or any other evidentiary privilege, the privilege provides a

valid basis to object and defend.

Section 192 states that violations are punishable by imprisonment for not less than one month nor

more than twelve months and a fine of not less than $100 nor more than $1,000.163 By virtue of

generally applicable amendments enacted after the section, class A misdemeanors (crimes

punishable by imprisonment for not more than one year) are subject to a fine of not more than

$100,000 for individuals and not more than $200,000 for organizations.164

Inherent Contempt of Congress

Congress’ exercise of its inherent power to punish for contempt of its authority predates the 1857

enactment of the original version of its statutory contempt provisions.165 The statute has always

been recognized as a supplement rather than a replacement of the inherent power.166 In fact for the

first half of the statute’s existence, Congress continued to rely upon its inherent power

notwithstanding the presence of a statutory alternative. Thereafter, Congress began to resort to the

statutory alternatives more regularly.167 The inherent power lay dormant and does not appear to

have been invoked any time within the last half century.168

161

Yellin v. United States, 374 U.S. 109, 123-24 (1963).

The Constitution gives each House the authority to “determine the rules of its proceedings,” U.S. Const. Art. I, §5,

cl.2. The Federal Rules of Evidence as such apply only to certain judicial proceedings, F.R.Evid. 1101.

163

“Every person who having been summoned as a witness by the authority of either House of Congress to give

testimony or to produce papers ... willfully makes default, or who, having appeared, refuses to answer any question

pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than

$1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve

months,” 2 U.S.C. 192.

164

In 1984, Congress established a uniform fine schedule which amends individual statutory maximum fine provisions

like those of Section 192 sub silentio, 18 U.S.C. 3571. Under the schedule, class A misdemeanors (crimes punishable

by imprisonment for not more than one year, 18 U.S.C. 3559) are punishable by a fine of not more than $100,000 for

individuals and not more than $200,000 for organizations, 18 U.S.C. 3571(b), (c).

165

Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821). The original version of 2 U.S.C. 192 appears in 11 Stat. 155

(1857).

166

Jurney v. MacCracken, 294 U.S. 125, 151 (1935); In re Chapman, 166 U.S. 661, 671-72 (1897).

162

167

In addition to Section 192, some of the misconduct that might have been punished under Congress’ inherent

contempt power may be prosecuted under 18 U.S.C. 1001 (false statements), 1621 (perjury), 1505 (obstruction of

justice before congressional committees), or 1512 (obstruction of justice).

168

Congress does not appear to have called upon its inherent power of contempt since the mid-1930s, 4 DESCHLER’S

PRECEDENTS OF THE HOUSE OF REPRESENTATIVES, ch. 15, §17 n.7 (1974); Beck, CONTEMPT OF CONGRESS, App.A, at

213 (1959).

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Contempt of Court at Congressional Behest

There are two statutory provisions available to permit Congress to call upon the courts to

overcome the resistance of witnesses in congressional proceedings. One covers immunity orders

where the witness has claimed his Fifth Amendment privilege against self-incrimination.169

Continued recalcitrance after the grant of immunity is punishable under the court’s civil and

criminal contempt powers. The second permits the court enforcement of a Senate subpoena but

apparently only to the extent of the court’s civil contempt powers.170

Obstruction of Justice by Violence or Threat

In addition to the basic federal crimes of obstruction of justice, federal law features a host of

criminal statutes that proscribe various obstructions according to the obstructive means used, be it

physical violence, bribery, property destruction, or deception. Thus, quite aside from the general

obstruction provisions of §§1512, 1513, 1505, and 1503, several federal statutes outlaw the use of

threats or violence for the purpose of obstruct federal government activities.

Violence and Threats Against Officials, Former Officials, and

Their Families (18 U.S.C. 115)

Section 115 prohibits certain acts of violence against judges, jurors, officials, former officials, and

their families in order to impede or to retaliate for the performance of their duties. The section

consists of three related offenses. One is designed to protect the families of judges and officials

against threats and acts of violence;171 another to protect judges and officials from threats;172 and

a third to protect former judges, former officials and their families from retaliatory threats and

acts of violence. 173 In more precise terms, they declare:

(1)(Families)

I. Whoever

II. A. assaults

B. kidnaps,

C. murders,

D. attempts to assault, kidnap, or murder,

E. conspires to assault, kidnap, or murder, or

F. threatens to assault, kidnap, or murder

III. a member of the immediate family of

A. a federal judge,

B. a Member of Congress,

169

18 U.S.C. 6001-6005.

28 U.S.C. 1365.

171

18 U.S.C. 115(a)(1)(A).

172

18 U.S.C. 115(a)(1)(B).

173

18 U.S.C. 115(a)(2).

170

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C. the President and any other federal officer or employee

IV. with the intent

A. either to

1. a. impede,

b. intimidate, or

c. interfere with

2. a. a federal judge,

b. a Member of Congress,

c. the President and any other federal officer or employee

3. in the performance of official duties;

B. or to

1. retaliate against

2. a. a federal judge,

b. a Member of Congress,

c. the President and any other federal officer or employee

3. for the performance of official duties

shall be punished as provided in subsection (b). 174

Subsection 115(a)(1)(A) only condemns violence against the families of federal officials, not

violence committed against the officials themselves.175 Subsection 115(b) makes kidnaping,

murder, and attempts and conspiracies to commit such offenses in violation of the section subject

to penalties imposed for those crimes when committed the officials themselves under other

sections of the Code, i.e., 18 U.S.C. 1201, 1111, 1113, and 1117.176 The penalties for assault are

calibrated according the seriousness of the assault. Simple assault carries a maximum penalty of

imprisonment for one year; assault involving physical contact or intent to commit another felony,

not more than 10 years; assault result in bodily injury, not more than 20 years; and assault

resulting in serious bodily injury or involving the use of dangerous weapon, not more than 30

years.177 Except in the case of simple assault or murder, the offenses are subject to a fine of not

more than $250,000; simple assault carries a fine of not more than $100,000.178

(2)(Threats)

I. Whoever

II. threatens to

A. assault

B. kidnap, or

C. murder

174

18 U.S.C. 115(a)(1)(A).

United States v. Bennett, 368 F.3d 1343, 1352-354 (11th Cir. 2004), vac’d on other grounds, 543 U.S. 1110 (2005).

176

18 U.S.C. 115(b)(2), (3).

177

18 U.S.C. 115(b)(1).

178

18 U.S.C. 115(b)(1), (2), (3), 1201, 1111, 1113, 1117, 3571.

175

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III.A. a federal judge,

B. a Member of Congress,

C. the President and any other federal officer or employee

IV. with the intent

A. either to

1. a. impede,

b. intimidate, or

c. interfere with

2. a. a federal judge,

b. a Member of Congress,

c. the President and any other federal officer or employee

3. in the performance of official duties;

B. or to

1. retaliate against

2. a. a federal judge,

b. a Member of Congress,

c. the President and any other federal officer or employee

3. for the performance of official duties

shall be punished as noted earlier by imprisonment for not more than 6 years in the case of a

threatened assault and not more than 10 years in the case of all other threats outlawed in the

section.179

Subsection 115(a)(1)(B) protects, among others, “an officials whose killing would be a crime

under [section 1114].” Section 1114, in turn, outlaws killing any “officer or employee of the

United States,” which has lead one court to conclude that subsection 115(a)(1)(B) protects any

federal officer or employee. 180

The circuits are divided over the question of whether a violation of subsection 115(a)(1)(B) is a

specific intent offense. The Eleventh Circuit has held that it is not and as a consequence the

government need not show that the defendant knew that his victim was a federal official. 181 The

Sixth Circuit, on the other hand, held that it is a specific intent offense and as a consequence a

defendant is entitled to present a defense of intoxication or diminished capacity.182

They were at one point likewise divided over whether the threat proscribed in the section is one

that would instill fear in a reasonable person to whom it was communicated or one a reasonable

defendant would understand would convey a sense of fear.183 The Ninth Circuit has suggested that

the Supreme Court may have resolved the split when it defined those “true threats” that lie

179

18 U.S.C. 115(a)(1)(B), (b)(4).

United States v. Bankoff, 613 F.3d 358, 372 (3d Cir. 2010).

181

United States v. Berki, 936 F.2d 529, 532-34 (11th Cir. 1991).

182

United States v. Veach, 455 F.3d 628, 632-34 (6th Cir. 2006).

183

United States v. Saunders, 166 F.3d 907, 913 n.6 (7th Cir. 1999)(“Those cases holding that the test should be an

objective speaker-based one include United States v. Schiefen, 139 F.3d 638, 639 (8th Cir. 1998) ... United States v.

Fulmer, 108 F.3d 1486, 1491-92 (1st Cir. 1997) ... United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir.

1990) ... and United States v. Welch, 745 F.2d 614, 619 (10th Cir. 1984) ... Those cases treating the objective test as

recipient-based include United States v. Malik, 16 F.3d 345, 348 (2d Cir. 1994); and United States v. Maisoner, 484

F.2d 1356, 1358 (4th Cir. 1973)”).

180

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beyond the protection of the First Amendment’s free speech clause as “those statements where the

speaker means to communicate a serious expression of an intent to commit an act of unlawful

violence to a particular individual or group of individuals.”184

(3)(Former Officials)

I. Whoever

II. A. assaults

B. kidnaps,

C. murders,

D. attempts to assault, kidnap, or murder, or

E. conspires to assault, kidnap, or murder, or

III. A. a former federal judge,

B. a former Member of Congress,

C. the former President and any other former federal officer or employee, or

D. a member of the immediate family of such former judge, Member or individual

IV. on account of the performance of their former official duties

shall be punished as provided in subsection (b) as described above with respect to assaults,

kidnapings, and murders of members of the families of federal officials.185

Violence and Threats Against Federal Officials on Account of the

Performance of Their Duties

Section 1114 of title 18 of the United States Codes outlaws murder, manslaughter, and attempted

murder and manslaughter when committed against federal officers and employees as well as

those assisting them during or on account of the performance of their duties.186 The section’s

coverage extends to government witnesses. 187 Other provisions outlaw kidnaping or assault

committed against federal officers and employees during or account of the performance of their

duties, but their coverage of those assisting them is less clear.188

184

United States v. Stewart, 403 F.3d 1007, 1016-19 (9th Cir. 2005), quoting, Virginia v. Black, 538 U.S. 343, 349-50

(2003); but see United States v. Armel, 585 F.3d 182, 185 (4th Cir. 2009)(“Statements constitute a ‘true threat’ if an

ordinary reasonable recipient who is familiar with their context would interpret those statements as a threat to injury”).

185

18 U.S.C. 115(a)(2).

186

18 U.S.C. 1114 (“Whoever kills or attempts to kill any officer or employee of the United States or of any agency in

any branch of the United States Government (including any member of the uniformed services) while such officer or

employee is engaged in or on account of the performance of official duties, or any person assisting such an officer or

employee in the performance of such duties or on account of that assistance, shall be punished—(1) in the case of

murder, as provided under Section 1111; (2) in the case of manslaughter, as provided under Section 1112; or (3) in the

case of attempted murder or manslaughter, as provided in Section 1113”).

187

See United States v. Caldwell, 433 F.3d 378, 384 (2005), affirming the conviction a defendant who solicited the

murder of a government witness on charges of violating 18 U.S.C. 373 (solicitation of murder), 1114 (attempted

murder), 1512(a) (witness tampering), 1513 (witness retaliation), 371 (conspiracy to murder a government witness).

188

18 U.S.C. 1201(a)(emphasis added)(“Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or

carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent

thereof, when ... (5) the person is among those officers and employees described in Section 1114 of this title and any

such act against the person is done while the person is engaged in, or on account of, the performance of official duties

(continued...)

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Beyond these general prohibitions, federal law proscribes the murder, kidnaping, or assault of

Members of Congress, Supreme Court Justices, or the Cabinet Secretaries;189 and a number of

statutes outlaw assaults on federal officers and employees responsible for the enforcement of

particular federal statutes and programs. 190

Obstruction of Justice by Bribery

Section 1512(b) outlaws witness tampering by corrupt persuasion. Several other federal statutes

outlaw bribery in one form or another. The main federal bribery statute is 18 U.S.C. 201 which

prohibits bribing federal officials, employees, jurors and witnesses. Although it makes no mention

of bribery, the honest services component of the mail and wire fraud statutes, 18 U.S.C. 1341,

1343, 1346, in some circumstances may afford prosecutors of public corruption greater latitude

and more severe penalties than §201. The Hobbs Act, 18 U.S.C. 1951, condemns public officials

who use their position for extortion. A few other statutes, noted in the margin, outlaw bribery to

obstruct specific activities. 191

(...continued)

... the sentence under this section for such offense shall include imprisonment for not less than 20 years”); 111

(emphasis added) (“Whoever— (1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any

person designated in Section 1114 of this title while engaged in or on account of the performance of official duties; or

(2) forcibly assaults or intimidates any person who formerly served as a person designated in Section 1114 on account

of the performance of official duties during such person’s term of service, shall, where the acts in violation of this

section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and in all

other cases, be fined under this title or imprisoned not more than 8 years [not more than 20 years if bodily injury is

inflicted or dangerous weapons used], or both”).

189

18 U.S.C. 351.

190

E.g., 7 U.S.C.60 (assault designed to influence administration of federal cotton standards program), 87b (assault

designed to influence administration of federal grain standards program), 473c-1 (assaults on cotton samplers to

influence administration of federal cotton standards program), 511i (assaults on designed to influence administration of

federal tobacco inspection program), 2146 (assault of United States animal transportation inspectors); 15

U.S.C.1825(a)(2)(C) (assaults on those enforcing the Horse Protection Act)); 16 U.S.C.773e (assaults on officials

responsible for enforcing the Northern Pacific Halibut Act), 973c (assaults on officials responsible for enforcing the

South Pacific tuna convention provisions), 1417 (assaults on officials conducting searches or inspections with respect

to the global moratorium on tuna harvesting practices), 1436 (assaults on officials conducting searches or inspections

with respect to the marine sanctuaries), 1857, 1859 (assaults on officials conducting searches or inspections with

respect to the federal fisheries management and conservation program), 2403, 2408 (assaults on federal officials

conducting searches or inspections on vessels subject to the jurisdiction of the United States with respect Antarctic

conservation), 2435 (assaults on federal officials conducting searches or inspections on vessels subject to the

jurisdiction of the United States in enforcement of the Antarctic Marine Living Resources Convention), 3637 (assaults

on federal officials conducting searches or inspections on vessels subject to the jurisdiction of the United States with

respect Pacific salmon conservation), 5009 (assaults on federal officials conducting searches or inspections on vessels

subject to the jurisdiction of the United States with respect North Pacific anadromous stock conservation), 5505

(assaults on federal officials conducting searches or inspections on vessels subject to the jurisdiction of the United

States with respect high seas fishing compliance), 5606 (assaults on federal officials conducting searches or inspections

on vessels subject to the jurisdiction of the United States with respect Northwest Atlantic Fisheries Convention

compliance); 18 U.S.C.1501 (assault on a server of federal process), 1502 (assaulting a federal extradition agent); 21

U.S.C.461(c) (assaulting federal poultry inspectors), 21 U.S.C.675 (assaulting federal meat inspectors), 21

U.S.C.1041(c) (assaulting federal egg inspector); 30 U.S.C.1461 (assaults on officials conducting searches or

inspections with respect to the Deep Seabed Hard Mineral Resources Act); 42 U.S.C.2000e-13 (assaulting EEOC

personnel), 2283 (assaulting federal nuclear inspectors).

191

E.g., 18 U.S.C. 152 (bribery in bankruptcy), 224 (bribery in sporting contests), 226 (bribery affecting port security),

666 (bribery relating to federally-funded programs); 16 U.S.C. 6906 (bribery relating to the Western and Central

Pacific Fisheries Convention); 21 U.S.C. 331(y)(3), 333 (Federal Food, Drug & Cosmetic Act bribery); 42 U.S.C.

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

Section 201 outlaws offering or soliciting bribes or illegal gratuities in connection with judicial,

congressional and administrative proceedings. 192 Bribery is a quid pro quo offense. In simple

terms, bribery under “§201(b)(1) as to the giver, and §201(b)(2) as to the recipient ... require[] a

showing that something of value was corruptly given, offered, or promised to a public official (as

to the giver) or corruptly demanded, sought, received, accepted, or agreed to be received or

accepted by a public official (as to the recipient) with intent ... to influence any official act (giver)

or in return for being influenced in the performance of any official act (recipient).”193

In the case of witnesses, subsection 201(b)(3) as to the giver and subsection 201(b)(4) as to the

recipient require a showing that something of value was corruptly offered or sought with the

intent to influence or be influenced with respect to testimony before, or flight from, a federal

judicial, congressional committee, or administrative trial, hearing or proceeding. 194

(...continued)

1320a-7b(b)(1)(bribery relating to social security health care).

192

The difference between bribes and gratuities under section 201 is that “for bribery there must be a quid pro quo—a

specific intent to give or receive something of value in exchange” for testimony or a vote in the jury room. “An illegal

gratuity, on the other hand, may constitute merely a reward for some” past or future testimony or jury service, United

States v. Sun-Diamond Growers, 526 U.S. 398, 404-405 (1999). Section 201 outlaws both but punishes bribery more

severely. For addition discussion of Section 1512 see, Twenty-Fifth Survey of White Collar Crime: Public Corruption,

47 AMERICAN CRIMINAL LAW REVIEW 915 (2010).

193

United States v. Sun-Diamond Growers, 526 U.S. at 404. See also United States v. Peleti, 576 F.3d 377, 383 (7th Cir.

2009); United States v. Valle, 538 F.3d 341, 345-47 (5th Cir. 2008).

The Court’s opinion in Sun-Diamond refers to public officials rather than jurors. Section 201defines public officials to

include jurors, 18 U.S.C. 201(a)(1). Subsections 201(b)(1),(2) provide that “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; or (B) to influence

such public official or person who has been selected to be a public official to commit or aid in committing, or collude

in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or (C) to induce

such public official or such person who has been selected to be a public official to do or omit to do any act in violation

of the lawful duty of such official or person; (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;

(B) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the

commission of any fraud, on the United States; or (C) being induced to do or omit to do any act in violation of the

official duty of such official or person ... shall be fined under this title or not more than three times the monetary

equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both, and may

be disqualified from holding any office of honor, trust, or profit under the United States.”

194

That is, “Whoever ... (3) directly or indirectly, corruptly gives, offers, or promises anything of value to any person,

or offers or promises such person to give anything of value to any other person or entity, with intent to influence the

testimony under oath or affirmation of such first-mentioned person as a witness upon a trial, hearing, or other

proceeding, before any court, any committee of either House or both Houses of Congress, or any agency, commission,

or officer authorized by the laws of the United States to hear evidence or take testimony, or with intent to influence

such person to absent himself therefrom; [or] (4) 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 being influenced

in testimony under oath or affirmation as a witness upon any such trial, hearing, or other proceeding, or in return for

absenting himself therefrom; shall be fined under this title or not more than three times the monetary equivalent of the

thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both, and may be disqualified

from holding any office of honor, trust, or profit under the United States,” 18 U.S.C. 203(b)(3), (4).

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Obstruction of Congress

The subsections condemn invitations and solicitations to corruption, but the entreaties need not be

successful195 nor does it matter that corruption was unnecessary.196 The intent required for bribery,

and the difference between the bribery and illegal gratuity offenses, is the intent to deliberately

offer or accept something of value in exchange for the performance or omission of an official

act.197 Section 201 defines the public officials covered broadly to cover federal and District of

Columbia officers and employees as well as those acting on their behalf.198 This includes anyone

who “occupies a position of public trust with official federal responsibilities.”199 Although there is

a statutory definition of “official act,”200 it has been a matter of some dispute, perhaps because of

its sweeping language. 201 The question becomes particularly difficult when the bribery charge

alleges that a bribe was provided in exchange for some unspecified official act or acts or for some

general course of conduct. 202 The application difficulties seem to have been exemplified by one

195

United States v. Muhammad, 120 F.3d 688, 693 (7th Cir. 1997), citing United States v. Gallo, 863 F.2d 185, 189 (2d

Cir. 1988); United States v. Ozcelik, 527 F.3d 88, 95 (3d Cir. 2008).

196

United States v. Orenuga, 430 F.3d 1158, 1165-166 (D.C. Cir. 2005)(finding no fault with a jury instruction which

stated, “It is not a defense to the crime of bribery that had there been no bribe, the public official might have lawfully

and properly performed the same act”); United States v. Quinn, 359 F.3d 666, 675 (4th Cir. 2004)(“it does not matter

whether the government official would have to change his or her conduct to satisfy the payor’s expectations”); United

States v. Alfisi, 308 F.3d 144, 150-51(2d Cir. 2002)(rejecting the defendant’s contention that the money given the

public official was to ensure an honest and accurate inspection).

197

United States v. Sun-Diamond Growers, 526 U.S. 398, 404-405 (1999); United States v. Quinn, 359 F.3d 666, 674

(4th Cir. 2004); United States v. Leyva, 282 F.3d 623, 626 (9th Cir. 2002).

198

18 U.S.C. 201(a)(1)(“the term ‘public official’ means Member of Congress, Delegate, or Resident Commissioner,

either before or after such official has qualified, or an officer or employee or person acting for or on behalf of the

United States, or any department, agency or branch of Government thereof, including the District of Columbia, in any

official function, under or by authority of any such department, agency, or branch of Government, or a juror”).

199

Dixson v. United States, 465 U.S. 482, 496 (1984)(officials of a private organization, contracted by the city, to

administer a federal program under which the city received funds); United States v. Baymon, 312 F.3d 725, 728-29 (5th

Cir. 2002)(cook at a federal prison); United States v. Kenney, 185 F.3d 1217, 1222 (11th Cir. 1999)(defense contractor

employee who assisted Air Force to procure material and equipment).

200

18 U.S.C. 201(a)(3)(“the term ‘official act’ means any decision or action on any question, matter, cause, suit,

proceeding or controversy, which may at any time be pending, or which may by law be brought before any public

official, in such official’s official capacity, or in such official’s place of trust or profit”).

201

The judges of the District of Columbia Circuit recently had great difficulty agreeing on whether a police officer had

been rewarded for an “official act,” in violation of section 201’s illegal gratuity prohibition, when he checked police

department databases for motor vehicle and outstanding arrest warrant information unrelated in any police

investigation. Six members of the court held that the term “official act” does not include everything a public official is

authorized to do and reversed the officer’s conviction, Valdes v. United States, 475 F.3d 1319, 1323-326 (D.C. Cir.

2007). Five members dissented, id. at 1333. See also United States v. Dixon, 525 F.3d 1033, 1041 (11th Cir. 2008)

citing the Valdes dissent and precedent under an earlier version of §201.

202

United States v. Jennings, 160 F.3d 1006, 1013, 1014 (4th Cir. 1998)(“A good will gift to an official to foster a

favorable business climate, given simply with the generalized hope or expectation of ultimate benefit on the part of the

donor does not constitute a bribe.” But, “It is not necessary for the government to prove that the payor intended to

induce the official to perform a set number of official acts in return for the payments ... For example, payments may be

made with the intent to retain the official’s services on an as needed basis, so that whenever the opportunity presents

itself the official will take specific action on the payor’s behalf”); United States v. Kemp, 500 F.3d 257, 282 (3d Cir.

2007)(emphasis of the court) (“Moreover, we agree with the government that the District Court’s instruction to the jury

that it could convict upon finding a ‘stream of benefits’ was legally correct. The key to whether a gift constitutes a

bribe is whether the parties intended for the benefit to be made in exchange for some official action; the government

need not prove that each gift was provided with the intent to prompt a specific official act. See United States v.

Jennings, 160 F.3d 1006, 1014 (4th Cir.1998). Rather, ‘[t]he quid pro quo requirement is satisfied so long as the

evidence shows a course of conduct of favors and gifts flowing to a public official in exchange for a pattern of official

actions favorable to the donor.’ Id. Thus, ‘payments may be made with the intent to retain the official’s services on an

as needed basis, so that whenever the opportunity presents itself the official will take specific action on the payor’s

behalf.’ Id.; see also United States v. Sawyer, 85 F.3d 713, 730 (1st Cir.1996) (stating that ‘a person with continuing

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Obstruction of Congress

appellate panel which held that governmental plea bargain practices fell within the reach of

§201’s prohibitions. 203 No such difficulties seem to attend the provisions of subsection 201(d)

which make it clear that prohibitions do not preclude the payment of witness fees, travel costs or

other reasonable witness expenses. 204

The penalty structure for illegal gratuities under §201 is typical. Illegal gratuities, that is, offering

or soliciting a gift as a reward for an official act, is punishable by imprisonment for not more than

two years and/or a fine of not more than $250,000.205 The penalty structure for bribery, however,

is fairly distinctive: imprisonment for not more than 15 years; a fine of the greater of three times

the amount of the bribe or $250,000; and disqualification from holding any federal position of

honor or trust thereafter.206

Section 201 offenses are RICO and money laundering predicate offenses. 207 Federal law

governing principals, accessories after the fact, misprision, conspiracy and extraterritorial

jurisdiction apply with equal force to bribery and illegal gratuities under §201.208

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

The mail fraud and wire fraud statutes have been written and constructed with such sweep that

they cover among other things, obstruction of government activities by corruption. They reach

any scheme to obstruct the lawful functioning in the judicial, legislative or executive branch of

government that involves (1) the deprivation of money, property or honest services, and (2) the

use of the mail or wire communications as an integral part of scheme. 209

The elements of the two offenses are similar. Mail fraud is the federal crime of scheming to

defraud when use of the mail furthers the scheme, 18 U.S.C. 1341.210 Wire fraud is the federal

(...continued)

and long-term interests before an official might engage in a pattern of repeated, intentional gratuity offenses in order to

coax ongoing favorable official action in derogation of the public’s right to impartial official services’). While the form

and number of gifts may vary, the gifts still constitute a bribe as long as the essential intent-a specific intent to give or

receive something of value in exchange for an official act-exists”).

203

United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), vac’d for rehearing en banc, 144 F.3d 1361 (10th Cir.

1998). The decision was overturn en banc and its view uniformly rejected by other federal appellate court United States

v. Singleton, 165 F.3d 1297, 1298 (10th Cir. 1998); United States v. Ihnatenko, 482 F.3d 1097, 1099-110 (9th Cir.

2007)(citing cases in the accord from the First, Fourth, Fifth, and Eighth Circuits); United States v. Souffront, 338 F.3d

809, 827 (7th Cir. 2003).

204

18 U.S.C. 201(d)(“Paragraphs (3) and (4) of subsection (b) and paragraphs (2) and (3) of subsection (c)[relating to

bribery and receipt of illegal gratuities involving witnesses] shall not be construed to prohibit the payment or receipt of

witness fees provided by law, or the payment, by the party upon whose behalf a witness is called and receipt by a

witness, of the reasonable cost of travel and subsistence incurred and the reasonable value of time lost in attendance at

any such trial, hearing, or proceeding, or in the case of expert witnesses, a reasonable fee for time spent in the

preparation of such opinion, and in appearing and testifying”).

205

18 U.S.C. 201(c).

206

18 U.S.C. 201(b).

207

18 U.S.C. 1961(1), 1956(c)(7)(A).

208

18 U.S.C. 2, 3, 4, 371; United States v. Bowman, 260 U.S. 94, 98 (1922); Ford v. United States, 273 U.S. 593, 623

(1927).

209

For addition discussion of 18 U.S.C. 1341, 1343, and 1346 see, Twenty-Fifth Survey of White Collar Crime: Mail

and Wire Fraud, 47 AMERICAN CRIMINAL LAW REVIEW 797 (2010).

210

United States v. Bryant, 606 F.3d 912, 917 (8th Cir. 2010)(“To establish mail fraud, the government must prove: ‘(1)

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crime of scheming to defraud when use wire communications furthers the scheme, 18 U.S.C.

1343.211 Section 1346 defines “scheme to defraud” to include a scheme to deprive another of

honest services. The courts have construed their common elements in the same manner.212 Thus,

what constitutes a scheme to defraud is the same in both instances: any act or omission that

“wrong[s] one in his property rights by dishonest methods or schemes and usually signif[ies] the

deprivation of something of value by trick, deceit, chicane or overreaching.”213 The deception that

is part of the scheme, however, must be material;214 that is, it must have a natural tendency to

induce reliance in the victim to his detriment or the offender’s benefit.215 Both crimes require a

(...continued)

a scheme to defraud by means of material false representations or promises, (2) intent to defraud, (3) reasonable

foreseeability that the mail would be used, and (4) [that] the mail was used in furtherance of some essential step in the

scheme’”); United States v. McMillan, 600 F.3d 434, 447 (5th Cir. 2010); United States v. McGeehan, 584 F.3d 560,

565 (3d Cir. 2009).

18 U.S.C. 1341(“Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining

money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan,

exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin,

obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or

spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or

authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or

deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial

interstate carrier, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail

or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person to

whom it is addressed, any such matter or thing, shall be fined under this title or imprisoned not more than 20 years, or

both. If the violation affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned

not more than 30 years, or both”).

211

United States v. Faulkenberry, 614 F.3d 573, 581 (6th Cir. 2010)(“The first element of wire fraud, then, is that the

defendant devised or willfully participated in a scheme to defraud. The second is that he used or caused to be used an

interstate wire communication ‘in furtherance of the scheme’; and the third that he intended ‘to deprive a victim of

money or property’”); United States v. Green, 592 F.3d 1057, 1064 (9th Cir. 2010); United States v. Mehta, 594 F.3d

277, 280 (4th Cir. 2010).

18 U.S.C. 1343 (“Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining

money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be

transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings,

signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or

imprisoned not more than 20 years, or both. If the violation affects a financial institution, such person shall be fined not

more than $1,000,000 or imprisoned not more than 30 years, or both”).

212

Pasquantino v. United States, 544 U.S. 349, 355 n.2 (2005)(“we have construed identical language in the wire and

mail fraud statutes in pari materia”), citing, Neder v. United States, 527 U.S. 1, 20 (1999) and Carpenter v. United

States, 484 U.S. 19, 25 and n.6 (1987); see also United States v. Mullins, 613 F.3d 1273, 1281 n.2 (10th Cir. 2010)

(“[I]nterpretations of the mail fraud statute are, of course, authoritative on questions of wire fraud”); United States v.

McMillan, 600 F.3d 434, 447 n.24 (5th Cir. 2010).

213

McNally v. United States, 483 U.S. 350, 358 (1987); see also United States v. Sloan, 492 F.3d 884, 890 (7th Cir.

2007)(“a scheme to defraud exists when the conduct at issue has demonstrated a departure from the fundamental

honesty, moral uprightness and candid dealings in the general life of the community”); United States v. Treadwell, 593

F.3d 990, 996 (9th Cir. 2010); United States v. Faulkenberry, 614 F.3d 573, 581 (6th Cir. 2010).

214

Neder v. United States, 527 U.S. 1, 20-26 (1999).

215

Neder v. United States, 527 U.S. at 22 n .5 (“The Restatement instructs that a matter is material if ‘(a) a reasonable

man would attach importance to its existence or nonexistence in determining his choice of action in the transaction in

question; or (b) the maker of the representation knows or has reason to know that its recipient regards or is likely to

regard the matter as important in determining his choice of action, although a reasonable man would not so regard it.’

Restatement (Second) of Torts §538 (1977)”)1, 20-6 (1999); United States v. Bryant, 606 F.3d 912, 917 (8th Cir. 2010);

United States v. Maxwell, 579 F.3d 1282, 1922 (11th Cir. 2009); United States v. Philip Morris USA, Inc., 566 F.3d

1095, 1122 (D.C. Cir. 2009).

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Obstruction of Congress

specific intent to defraud,216 and they are punishable regardless of whether the scheme

succeeds.217 As for the jurisdictional element, the “statute doesn’t require that a defendant be able

to anticipate every technical detail of a wire [or postal] transmission, before she may be held

liable for causing it. It’s enough if she ‘sets forces in motion which foreseeably would involve’

use of the wires.”218

Both statutes refer to a “scheme or artifice to defraud, or for obtaining money or property by

means of false or fraudulent pretenses ... ” The extent to which that phrase encompasses

intangibles has not always been clear. In spite of a generous interpretation by many of the lower

federal appellate courts that encompassed frustration of governmental functions in many forms,

the Supreme Court in McNally declared that the mail fraud statute did not proscribe schemes to

defraud the public of the honest and impartial services of its public employees or officials.219

Lest McNally be read to limit the mail and wire fraud statutes exclusively to tangible money or

property, the Court explained in Carpenter, soon thereafter, that the “property” of which the mail

and wire fraud statutes speak includes recognized intangible property rights. There, it upheld

application of the mail fraud statute to a scheme to deny a newspaper its pre-publication property

right to its confidential information.220 The Court later confirmed that the wire fraud statute could

be used against a smuggling scheme that deprived a governmental entity of its intangible right to

collect tax revenues.221

In the wake of McNally, Congress expanded the scope of the mail and wire fraud statutes with the

passage of 18 U.S.C. 1346, which defines the “scheme to defraud” element in the fraud statutes to

include a scheme “to deprive another of the intangible right of honest services.” Section 1346

extends mail and wire fraud to prohibit the deprivation of the intangible right to honest services of

both public and private officers and employees.

Until construed more narrowly by the Supreme Court in Skilling, some of the lower courts

understood it to proscribe bribery, kickbacks and as well as various forms of self-dealing

committed to the detriment of those to whom the offender owed a fiduciary duty of some kind.222

In the public sector, it was thought to condemn dishonesty in public officers and employees,

although the exact scope of that proscription remained largely undefined. Some lower courts said

216

United States v. Phipps, 595 F.3d 243, 245-46 (5th Cir. 2010)(“Mail and wire fraud are both specific intent crimes

that require the Government to prove that a defendant knew the scheme involved false representations”); United States

v. Anderson, 580 F.3d 639, 646-47 (7th Cir. 2009); United States v Philip Morris USA, Inc., 566 F.3d 1095, 1118 (D.C.

Cir. 2009).

217

United States v. McGowan, 590 F.3d 446, 457 (7th Cir. 2009); United States v. Gale, 468 F.3d 929, 937 (6th Cir.

2006); United States v. Schuler, 458 F.3d 1148, 1153 (10th Cir. 2006); United States v. Reifler, 446 F.3d 65, 96 (2d Cir.

2006).

218

United States v. Mullins, 613 F.3d 1273, 1281 (10th Cir. 2010); United States v. Phipps, 595 F.3d 243, 246 (5th Cir.

2010)(emphasis in the original)(“[T]here is no statutory requirement that a defendant generate a wire transmission or

mailing. Phipps needed only to cause the use of wire communication facilities”); United States v. Martinez, 588 F.3d

301, 316 (6th Cir. 2009), quoting Pereira v. United States, 347 U.S. 1, 8-9 (1954)(“One ‘causes’ the mails to be used

where he or she ‘does an act with knowledge that the use of the mails will follow in the ordinary course of business, or

where such use can reasonably be foreseen, even though not actually intended’”).

219

United States v. McNally, 483 U.S. 350, 361, 355 n.4 (1987).

220

Carpenter v. United States, 484 U.S. 19, 26-27 (1987).

221

Pasquantino v. United States, 544 U.S. 349, 357 (2005).

222

United States v. Brown, 459 F.3d 509, 521 (5th Cir. 2006); United States v. Rybicki, 354 F.3d 124, 139-44 (2d Cir.

2003).

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Obstruction of Congress

that honest services fraud in the public sector “typically occurs in either of two situations: (1)

bribery, where a public official was paid for a particular decision or action; or (2) failure to

disclose a conflict of interest resulting in personal gain.”223 The bribery examples caused little

pause; more perplexing were the issues of how broadly the conflict-of-interest provision might

reach and what atypical situations might come within the honest services fraud prohibition. The

uncertainty led the Supreme Court to conclude that Congress intended the honest services

provision to apply to bribery and kickbacks,224 but that “[i]nterpreted to encompass only bribery

and kickbacks, [it] was not unconstitutionally vague.”225

Prosecutors may favor a mail or wire fraud charge over or in addition to a bribery charge if for no

other reason than that under both fraud sections offenders face imprisonment for not more than 20

years rather than the 15-year maximum found in §201.226

Mail fraud and wire fraud are both RICO and money laundering predicate offenses.227 The legal

precipes relating to principals, accessories after the fact, misprision, and conspiracy apply to mail

fraud and wire fraud as well. However, the courts are unlikely to conclude that either applies to

misconduct occurring entirely overseas, since their jurisdictional elements (United States) mails

and interstate and foreign commerce of the United States) are clearly domestic.

Obstruction by Extortion Under Color of Official Right

(18 U.S.C. 1951)

The Hobbs Act outlaws the obstruction of interstate or foreign commerce by means of robbery or

extortion. 228 Extortion under the act comes in two forms: extortion induced by fear and extortion

223

United States v. Kemp, 500 F.3d 257, 279 (3d Cir. 2007); see also United States v. Walker, 490 F.3d 1282, 1297

(11th Cir. 2007)(“Public officials inherently owe a fiduciary duty to the public to make governmental decision in the

public’s best interest. If an official instead secretly makes his decisions based on his own person interests—as when an

official accepts a bribe or personally benefits from an undisclosed conflict of interest—the official has deprived the

public of his honest services”)(emphasis added); United States v. Sawyer, 239 F.3d 31, 40 (2001)(“[W]e noted two of

the ways that a public official can steal his honest services from his public employer: (1) the official can be influenced

or otherwise improperly affected in the performance of his official duties; or (2) the official can fail to disclose a

conflict of interest resulting in personal gain”).

224

Skilling v. United States, 130 S.Ct. 2896, 2931 n. 43 (2010) (“Apprised that a broader reading of §1346 could render

the statute impermissibly vague, Congress, we believe, would have drawn the honest-services line, as we do now, at

bribery and kickback schemes”)

225

Id. at 2933 (emphasis added).

226

18 U.S.C. 1341, 1343. Although not ordinarily relevant in an obstruction of governmental functions context, mail

and wire fraud offenders face imprisonment for not more than 30 years and a fine of not more $1 million when a

financial institution is the victim of the fraud, id.

227

18 U.S.C. 1961(1), 1956(c)(7)(A).

228

18 U.S.C. 1951 (“(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any

article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens

physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this

section shall be fined under this title or imprisoned not more than twenty years, or both. (b) As used in this section ...

(2) The term ‘extortion’ means the obtaining of property from another, with his consent, induced by wrongful use of

actual or threatened force, violence, or fear, or under color of official right. (3) The term ‘commerce’ means commerce

within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in

a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points

within the same State through any place outside such State; and all other commerce over which the United States has

jurisdiction.... ”).

Congressional Research Service

Obstruction of Congress

under color of official right.229 Extortion under color of official right occurs when a public official

receives a payment to which he is not entitled, knowing it is being provided in exchange for the

performance of an official act.230 Liability may be incurred by public officers and employees,

those in the process of becoming public officers or employees, their coconspirators, or those who

aid and abet public officers or employees in extortion under color or official right.231 The payment

need not have been solicited, 232 nor need the official act for which it is exchanged have been

committed.233 The prosecution must establish that the extortion obstructed, delayed, or affected

interstate or foreign commerce, but proof of a potential impact even one that is not particularly

severe may be sufficient.234

Hobbs Act violations are punishable by imprisonment for not more than 20 years and a fine of not

more than $250,000.235 Hobbs Act offenses are RICO and money laundering predicates.236 The

act has a separate conspiracy component, 237 but recourse to prosecution of conspiracy under 18

U.S.C. 371 is an alternative. 238 An offender may incur criminal liability under the misprision

statute or as a principal or accessory before the fact to a violation of the Hobbs Act by another. 239

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

Before Congress rewrote federal obstruction of justice law in 1982, §1510 covered the

obstruction of federal crimin

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