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

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URL: https://www.frixlaw.com/law-library/documents/crs%3ARL34304

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** November 5, 2010
- **Citation:** RL34304

## Text

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)).

1

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).
2
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.
3
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.
4
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.
5
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

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

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)

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

6
Here and throughout this report the outline of the statute’s elements uses the language of the statute wherever
possible.
7
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.
8

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.
10
“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).
11
United States v. Rodriguez-Marrero, 390 F.3d 1, 13 (1st Cir. 2004); United States v. Sandstrom, 594 F.3d 634, 655
th
(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”).
12
“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).
13
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)” ).
9

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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
14

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).
16
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”).
17
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
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).
15

19

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).
20
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
(continued...)

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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”).
21
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).
22
See generally CRS Rept. 94-166, Extraterritorial Application of American Criminal Law.
23
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.
24
18 U.S.C. 371.
25
E.g., Whitfield v. United States, 543 U.S. 209, 214-15 (2004); United States v. Shabani, 513 U.S. 10, 17 (1994).
26
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).
27
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”).
28
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”).
29
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).
30
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 ... ”).
31
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).
32

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).
33
United States v. Taylor, 322 F.3d 1209, 1211-212 (9th Cir. 2003).
34
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”).
35
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

36

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).
37
18 U.S.C. 4, 3571.
38
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).”
39
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).
40
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.”).
41
18 U.S.C. 373.
42
18 U.S.C. 1961-1963.
43
18 U.S.C. 1961.
44
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

45

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.
46
18 U.S.C. 1956.
47
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).
48
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.
49
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”).
50
Offenders face a fine and term of imprisonment twice that of the offense committed by the child, 18 U.S.C. 25(b).
51
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).
52
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)).
53
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).
54
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
55

“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).
56
“(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

57

“(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).
58
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

59
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).
60
18 U.S.C. 1512(b).
61
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)”).
62
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”).
63
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”).
64
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).
65
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”).
66
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”).
67
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)).
68
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
69

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

70
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).
71
P.L. 107-204, 116 Stat, 807 (2000).
72
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
73
74

18 U.S.C. 1512(c).
United States v. Lucas, 499 F.3d 769, 781 (8th Cir. 2007).

75
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).
76
18 U.S.C. 1961, 1956(c)(7)(A).
77
18 U.S.C. 2, 3, 371, 1512(k), 4.
78
18 U.S.C. 1512(h).
79
18 U.S.C. 1512(f).
80
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

81

18 U.S.C. 1512(d).
18 U.S.C. 3571, 3581.
83
Camelio v. American Federation, 137 F.3d 666, 671-72 (1st Cir. 1998).
84
18 U.S.C. 1961, 1956(c)(7)(A).
85
18 U.S.C. 2, 3, 371, 1512(k).
86
18 U.S.C. 1512(h).
87
18 U.S.C. 1512(f), (g).
82

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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
88

“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.
89
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).
90
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

91

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).
92
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.
93
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”).
94
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

95

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).
96
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).
97
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).
98
18 U.S.C. 1961(1), 1956(c)(7).
99
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3ARL34304. Public record. Not legal advice.