Order Code RL34303
Obstruction of Justice: an Overview of
Some of the Federal Statutes that Prohibit
Interference with Judicial, Executive,
or Legislative Activities
December 27, 2007
Charles Doyle
Senior Specialist
American Law Division

Obstruction of Justice: An Overview of Some of the
Federal Statutes that Prohibit Interference with Judicial,
Executive, or Legislative Activities
Summary
Obstruction of justice is the impediment of governmental activities. There are
a host of federal criminal laws that prohibit obstructions of justice. The six most
general outlaw obstruction of judicial proceedings (18 U.S.C. 1503), witness
tampering (18 U.S.C. 1512), witness retaliation (18 U.S.C. 1513), obstruction of
Congressional or administrative proceedings (18 U.S.C. 1505), conspiracy to defraud
the United States (18 U.S.C. 371), and contempt (a creature of statute, rule and
common law).
The laws that supplement, and sometimes mirror, the basic six tend to proscribe
a particular means of obstruction. Some, like the perjury and false statement statutes,
condemn obstruction by lies and deception. Others, like the bribery, mail fraud, and
wire fraud statutes, prohibit obstruction by corruption. Some outlaw the use of
violence as a means of obstruction. Still others ban the destruction of evidence. A
few simply punish “tipping off” those who are the targets of an investigation.
Many of these offenses may also provide the basis for racketeering and money
laundering prosecutions, and each provides the basis for criminal prosecution of
anyone who aids and abets in or conspires for their commission.
This report is available in abbreviated form – without footnotes, quotations, or
citations – as CRS Report RS22783, Obstruction of Justice: An Abridged Overview
of Related Federal Criminal Laws
. Excerpted portions of this report are available
as follows. CRS Report RL34304, Obstruction of Congress: A Brief Overview of
Federal Law Relating to Interference with Congressional Activities
; CRS Report
RS22784, Obstruction of Congress: an Abridged Overview of Federal Laws Relating
to Interference with Congressional Activities
; CRS Report 98-808, Perjury Under
Federal Law: A Brief Overview
; and CRS Report 98-8807, Perjury Under Federal
Law: A Sketch of the Elements
. All by Charles Doyle.

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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Obstruction by intimidation, threats, persuasion,
or deception (18 U.S.C. 1512(b) . . . . . . . . . . . . . . . . . . . . . . . . . 11
Obstruction by destruction of evidence (18 U.S.C. 1512(c)) . . . . . . . . 16
Obstruction by harassment (18 U.S.C. 1512(d)) . . . . . . . . . . . . . . . . . 17
Obstructing Federal Courts (18 U.S.C. 1503) . . . . . . . . . . . . . . . . . . . . . . . 18
The Omnibus Provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Interfering with Jurors or Judicial Officials (18 U.S.C. 1503) . . . . . . 22
Auxiliary Offenses and Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Retaliating Against Federal Witnesses (18 U.S.C. 1513) . . . . . . . . . . . . . . 25
Obstructing Congressional or Administrative
Proceedings (18 U.S.C. 1505) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Conspiracy to Obstruct (18 U.S.C. 371) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Conspiracy to defraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Conspiracy to Commit a Substantive Offense . . . . . . . . . . . . . . . . . . . 32
Contempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Criminal Contempt of Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Contempt of Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Obstruction of Justice by Violence or Threat . . . . . . . . . . . . . . . . . . . . . . . 48
Violence and Threats Against Officials, Former Officials,
and Their Families (18 U.S.C. 115) . . . . . . . . . . . . . . . . . . . . . . . 48
Violence and Threats Against Federal Officials on Account
of the Performance of Their Duties . . . . . . . . . . . . . . . . . . . . . . . 51
Obstruction of Justice by Bribery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Bribery of Jurors, Public Officers and Witnesses (18 U.S.C. 201) . . . 53
Obstruction by Mail or Wire Fraud (18 U.S.C. 1341, 1343) . . . . . . . . 56
Obstruction by Extortion Under Color of Official Right
(18 U.S.C. 1951) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Obstruction of Investigations by Bribery (18 U.S.C. 1510(a)) . . . . . . 63
Obstruction of Justice by Destruction of Evidence . . . . . . . . . . . . . . . . . . . 64
Obstruction of Investigations by Destruction of Evidence
(18 U.S.C. 1519) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Destruction of Property to Prevent Seizure (18 U.S.C. 2232(a)) . . . . . 68
Destruction of Corporate Audit Records (18 U.S.C. 1520) . . . . . . . . . 68
Obstruction of Justice by Deception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Perjury in a Judicial Context (18 U.S.C. 1623) . . . . . . . . . . . . . . . . . . 69
Perjury Generally (18 U.S.C. 1621) . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Subornation of Perjury (18 U.S.C. 1622) . . . . . . . . . . . . . . . . . . . . . . . 78
False Statements (18 U.S.C. 1001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Obstruction of Justice by “Tip-Off” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Specific Obstructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Influencing Jurors by Writing (18 U.S.C. 1504) . . . . . . . . . . . . . . . . . 85

Obstruction of Justice: An Overview of
Some of the Federal Statutes that Prohibit
Interference with Judicial, Executive, or
Legislative Activities
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 the some of the more
prominent.3
General Obstruction Prohibitions
The general federal obstruction of justice provisions are six: 18 U.S.C. 1512
(tampering with federal witnesses), 1513 (retaliating against federal witnesses), 1503
(obstruction of pending federal court proceedings), 1505 (obstruction of pending
Congressional or federal administrative proceedings), 371 (conspiracy), and
contempt.4 In addition to these, there are a host of other statutes that penalize
obstruction by violence, corruption, destruction of evidence, or deceit.
Witness Tampering (18 U.S.C. 1512)
Section 1512 applies to the obstruction of federal proceedings – judicial,
Congressional, or executive.5 It consists of four somewhat overlapping crimes: use
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 Report 98-808, Perjury
Under Federal Law: A Brief Overview
, and CRS Report 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

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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)).
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
a. influence, delay, or prevent testimony
an official proceeding (i.e., a federal
at an official proceeding
judicial, legislative or administrative
proceeding)
b. prevent the production of an item at
b. cause or induce another to withhold
an official proceeding
testimony or an item at an official
proceeding
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 Section 1512 see, Twenty-Second Survey of White Collar Crime: Obstruction
of Justice
, 44 AMERICAN CRIMINAL LAW REVIEW 794 (2007).
6 Here and throughout this report the outline of the statute’s elements uses the language of
the statute wherever possible.

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c. prevent the communication to U.S.
c. hinder, delay or prevent the
law enforcement authorities of a
communication to U.S. law
federal offense or a violation of
enforcement authorities of a
probation, parole, or supervised
federal offense or a violation of
release.
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)
in the case of:
in the case of:
a. murder- death or life imprisonment
a. use or attempted use of physical force-
imprisonment for not more than 20
years
b. voluntary manslaughter- imprisonment b. threats to use physical force -
for not more than 10 years
imprisonment for not more than 10
years
c. involuntary manslaughter-
imprisonment for not more than 6
years
d. attempted murder- imprisonment for
not more than 20 years7
7 18 U.S.C. 1512(a). Unlike most federal crimes, subsection 1512(a) does not include
imposition of a fine among the sanctions that follow as a consequence of its provisions –
with one exception. It states that a subsection 1512(a) manslaughter offense shall be
punished as provided in 18 U.S.C. 1112. In addition to a term of imprisonment, Section
1112 states that offenders may be “fined under this title.” Section 3571 of title 18 sets the
general fine level for felonies (crimes whose maximum term of imprisonment is more than
one year) at the greater of either not more than $250,000 for individuals (not more than
$500,000 for organizations) or twice the amount of gain or loss associated with the offense.
For purposes of brevity and convenience, a reference hereafter to a fine of not more than
$250,000 should be understood to include the higher limits for organizations or when the
gain or loss associated with the offense is greater. Although many federal statutes suggest
that offenders may be sentenced to a fine rather than a term of imprisonment at the
discretion of the court, other provisions of law and the influence of the Sentencing
Guidelines greatly curtail the number of instances in which simple imposition of a fine
would be considered an appropriate punishment for the commission of a felony, 18 U.S.C.
3553 (imposition of sentence); U.S.S.G. §§2J1.2, 2J1.3 (base offense level for obstruction
of justice and perjury is 14), U.S.S.G. ch.5 Pt. A Sentencing Table(sentencing range for first
time offenders with an offense level of 14 is 15 to 21 months imprisonment). For a general
discussion of the operation of the federal sentencing guidelines see CRS Report RL32846,
How the Federal Sentencing Guidelines Work: Two Examples.

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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.8
“To establish a crime under the ‘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.”9
There are two statutory defenses to charges under Section 1512. One covers
legitimate legal advice and related services, 18 U.S.C. 1515(c),10 and is intended for
use in connection with the corrupt persuasion offenses proscribed elsewhere in
Section 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).11
Subsections 1512(f) and 1512(g) seek to foreclose a cramped construction of the
various offenses proscribed in Section 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
8 “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).
9 United States v. Rodriguez-Marrero, 390 F.3d 1, 13 (1st Cir. 2004).
10 “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).
11 The Sarbanes-Oxley Act redesignated Section 1512(d)(2000 ed.) as Section 1512(e): “In
a prosecution for an offense under this section, it is an affirmative defense, as to which the
defendant has the burden of proof by a preponderance of the evidence, that the conduct
consisted solely of lawful conduct and that the defendant’s sole intention was to encourage,
induce, or cause the other person to testify truthfully,” 18 U.S.C. 1512(e). See, United
States v. Lowery
, 135 F.3d 957, 960 (5th Cir. 1998)(reversing the defendant’s obstruction of
justice conviction for the trial court’s failure to permit evidence substantiating the defense);
United State v. Thompson, 76 F.2d 442 (2d Cir. 1996)(upholding the constitutionality of the
defense in the face of a challenge that it unconstitutionally shifted the burden of proof to the
accused); United States v. Arias, 253 F.3d 453, 457 (9th Cir. 2001)(“This section was
apparently intended to exempt judicial officers who lawfully remind witnesses or defendants
of their oath to give true testimony, although the statutory language itself is not so limited.
See U.S. v. Johnson, 968 F.2d 208, 213 (2d Cir. 1992)(quoting legislative history)” ).

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defendant’s misconduct must be shown to have been taken in anticipation of such
proceedings is more difficult question.
The Supreme Court recent rejected the contention that language like that found
in subsection 1512(f)(making Section 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.12 That case, however, the Arthur Andersen case, involved the
construction of subsection 1512(b) that 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.
By virtue of subsection 1512(g), the government need not prove that a Section
1512 offender knew of the federal status of the obstructed proceeding or
investigation.13 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.14
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.15
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
12 Arthur Anderson, LLP v. United States, 544 U.S. 696, 707-8 (2005).
13 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”).
14 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).
15 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).

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international law – unless a contrary intent is obvious.16 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
jurisdiction17 and find such an application compatible with the principles of
international law.18 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.19

Subsection 1512(i) states that violations of Section 1512 or Section 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.20
16 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).
17 United States v. Bowman, 260 U.S. 94, 98 (1922)(“But the same rule of interpretation [of
purely domestic application] should not be applied to criminal statutes which are, as a class,
not logically dependent on their locality for the government’s jurisdiction, but are enacted
because of the right of the government to defend itself against obstruction, or fraud wherever
perpetrated. . . . We 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”).
18 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).
19 See generally, CRS Report 94-166, Extraterritorial Application of American Criminal
Law
.
20 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

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Auxiliary Offenses and Liability.
Subsection 1512(k) makes conspiracy to violate Section 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 5 years and conviction requires the government to prove the commission of an
overt act in furtherance of the scheme by one of the conspirators.21 Subsection
1512(k) has no specific overt act element, and the courts have generally declined to
imply one under such circumstances.22 It remains to be seen whether, in the absence
of an overt act element, venue over a subsection 1512(k) conspiracy is proper in any
district in which only an overt act in its furtherance is committed.23 Regardless of
which section is invoked, conspirators are criminally liable under the Pinkerton
doctrine for any crime committed in the foreseeable furtherance of the conspiracy.24

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.25 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
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
.
21 18 U.S.C. 371.
22 E.g., Whitfield v. United States, 543 U.S. 209, 214-15 (2004); United States v. Shabani,
513 U.S. 10, 17 (1994).
23 As general rule, a crime occurs and venue is thus proper where a conduct element occurs,
and “where a crime consists of distinct parts which have different localities the whole may
be tried where any part can be proved to have been done . . . cf. Hyde v. United States, 225
U.S. 347, 356-67 (1912)(venue proper against defendant in district where co-conspirator
carried out overt acts even though there was no evidence that the defendant had ever entered
that district or that the conspiracy was formed there),” United States v. Rodriguez-Moreno,
526 U.S. 275, 280-82 (1999). Hyde was charged under section 5440 of the Revised Statutes,
an earlier version of 18 U.S.C. 371, that contained an overt act requirement, 225 U.S. at 349.
24 Pinkerton v. United States, 328 U.S. 640, 646-48 (1946); United States v. Moran, 493
F.3d 1002, 1009 (9th Cir. 2007); United States v. Roberson, 474 F.3d 432, 433 (7th Cir.
2007); United States v. Lake, 472 F.3d 1247, 1265 (10th Cir. 2007).
25 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”).

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himself with the venture, that he participate in it as in something he wishes to bring
about, that he seek by his action to make it succeed.”26 It is also necessary to prove
that someone else committed the underlying offense.27

Section 3 outlaws acting as an accessory after the fact,28 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.”29
Prosecution requires the commission of an underlying federal crime by someone
else.30 An offender cannot be both a principal and an accessory after the fact to the
same offense.31 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).32
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.33 “The elements of misprision of a felony under 18 U.S.C. 4
are (1) the principal committed and completed the felony alleged; (2) the defendant
had full knowledge of that fact; (3) the defendant failed to notify the authorities; and
26 Nye & Nissen v. United States, 336 U.S. 613, 619 (1949); United States v. Pnado Franco,
503 F.3d 389, 396 (5th Cir. 2007); United States v. Kemp, 500 F.3d 257, 293 (3d Cir. 2007);
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”).
27 United States v. Garcia-Carrasquillo, 483 F.3d 124, 130 (1st Cir. 2007); United States v.
Hassoun
, 476 F.3d 1181, 1183 n.2 (11th Cir. 2007); United States v. Reifler, 446 F.3d 65, 96
(2d Cir. 2006).
28 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. . .”).
29 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).
30 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).
31 United States v. Taylor, 322 F.3d 1209, 1211-212 (9th Cir. 2003).
32 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”).
33 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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(4) defendant took steps to conceal the crime.”34 The offense is punishable by
imprisonment for not more than 3 years and/or a fine of not more than $250,000.35
Solicitation to commit an offense under subsection 1512(a), or any other crime
of violence, is prohibited in 18 U.S.C. 373.36 “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.”37 Section 373
provides an affirmative statutory defense for one who prevents the commission of the
solicited offense.38 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.39
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
34 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); United States v. Adams, 961 F.3d 505, 508 (5th Cir. 1992).
35 18 U.S.C. 4, 3571.
36 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).”
37 United States v. Caldwell, 433 F.3d 378, 390 (4th Cir. 2005); United States v. Rahman,
189 F.3d 88, 125 (2d Cir. 1999); United States v. Rahman, 34 F.3d 1331, 1337 (7th Cir.
1994); United States v, Buckalew, 859 F.2d 1052, 1052-53 (1st Cir. 1988).
38 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.”).
39 18 U.S.C. 373.

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racketeering statutes (RICO) outlaw acquiring or conducting the affairs of an
interstate enterprise through a pattern of “racketeering activity.”40 The commission
of any of a series of state and federal crimes (predicate offenses) constitutes a
racketeering activity.41 Section 1512 offenses are RICO predicate offenses.42 RICO
violations are punishable by imprisonment for not more that 20 years (or
imprisonment for life if the predicate offense carries such a penalty), a fine of not
more than $250,000 and the confiscation of related property.43
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.”44
Any RICO predicate offense is by virtue of that fact a specified unlawful activity, i.e.,
a money laundering predicate offense.45 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.46
A subsection 1512(a) offense is by definition a crime of violence.47
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),48
-521 (criminal street gang),49
-924(c)(carrying a firearm during and in relation to a crime of violence),50
40 18 U.S.C. 1961-1963.
41 18 U.S.C. 1961.
42 Id. E.g., United States v. Diaidone, 471 F.3d 371 (2d Cir. 2006).
43 18 U.S.C. 1963. For a general discussion of RICO see, Twenty-Second Survey of White
Collar Crime: Racketeer Influenced and Corrupt Organizations
, 44 AMERICAN CRIMINAL
LAW REVIEW 901 (2007); and CRS Report 96-950, RICO: A Brief Sketch.
44 18 U.S.C. 1956.
45 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).
46 18 U.S.C. 1956, 981, 982. For a general discussion of the money laundering statutes see,
Twenty-Second Survey of White Collar Crime: Money Laundering, 44 AMERICAN CRIMINAL
LAW REVIEW 769 (2007); and CRS Report RL33315, Money Laundering: An Overview of
18 U.S.C. 1956 and Related Federal Criminal Law
.
47 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”).
48 Offenders face a fine and term of imprisonment twice that of the offense committed by
the child, 18 U.S.C. 25(b).
49 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).
50 Offenders face a term of imprisonment ranging from imprisonment for not less than 5
years to imprisonment for life depending upon the circumstances of the offenses in addition

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-929 (carrying a firearm with restricted ammunition during and in relation to a
crime of violence),51
-1028 (identity fraud in connection with a crime of violence).52
Obstruction by intimidation, threats, persuasion,
or deception (18 U.S.C. 1512(b).
The second group of offenses within Section 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, it
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 conduct53
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,54 or
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)).
51 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).
52 Offenders face a term of imprisonment of not more than 20 years, 18 U.S.C. 1028(b)(3).
53 “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).
54 “(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

CRS-12
B. cause or induce any person to

1. a. i. withhold testimony, or
ii. withhold a
(I) record,
(II) document, or
(III) other object,
b. from an official proceeding, or
2. a. i. alter,
ii. destroy,
iii. mutilate, or
iv. conceal
b. an object
c. with intent to impair
d. the object's
i. integrity or
ii. availability for use
e. in an official proceeding,
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 officer55
3. of information relating to the
a. commission or
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).
55 “(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).

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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 10 years, or both.56
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 official federal proceedings or with the intent to
prevent a witness from cooperating with authorities in a matter relating to a federal
offense.57 It also bans any attempt to so intimidate, threaten, or corruptly persuade,
id. 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,58 the motive
for persuasion,59 and the manner of obstruction.60 Prosecution for obstructing official
56 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).
57 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).
58 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)”).
59 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

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proceedings under subsection 1512(b)(2) will require proof that the defendant
intended to obstruct a particular proceeding.61 Prosecution for obstructing the flow
of information to law enforcement officials under subsection 1512(b)(3), on the other
hand, apparently requires of no such nexus.62 A subsection 1512(b)(3) investigation
language in Section 1503(a), i.e., motivated by an improper purpose”).
60 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. 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.
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”).
61 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 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).
62 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

CRS-15
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.”63 The defendant’s belief that witness might confer with federal
authorities can be inferred from the nature of the offense and “additional appropriate
evidence.”64
The attributes common to Section 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(c) 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.65 Subsection 1515(d) makes it clear that bona fide legal advice and
related services cannot be used to provide the basis for subsection 1512(b) corrupt
persuasion prosecution.66 Conversely, a charge of soliciting a crime of violence or
of using a child to commit a crime of violence 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
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”).
63 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”).
64 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)).
65 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”).
66 E.g., United States v. Kellington, 217 F.3d 1084, 1098-1100 (9th Cir. 2000).

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can be said of aiding and abetting, accessories after the fact, misprision, and predicate
offense status under RICO or the money laundering statutes.67 And, it likewise is a
separate offense to conspire to violate subsection 1512(b) under either section 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,68 and proscribes obstruction of federal
administrative, judicial, or Congressional proceedings by destruction of evidence.69
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
C. attempts to do so
shall be fined under this title or imprisoned not more than 20 years, or both.70
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.71
67 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).
68 P.L. 107-204, 116 Stat, 807 (2000).
69 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)).
70 18 U.S.C. 1512(c).
71 United States v. Lucas, 499 F.3d 769, 781 (8th Cir. 2007).

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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.’”72
Like subsection 1512(a) and 1512(b) offenses, subsection 1512(c) offenses are
RICO and money laundering predicate offenses,73 and may provide the foundation
for criminal liability as a principal, accessory after the fact, conspirator, or one guilty
of misprision.74 If the federal judicial, administrative or Congressional proceedings
are obstructed, prosecution may be had in the United States even if the destruction
occurs overseas,75 the proceedings are yet pending,76 or the offender is unaware of
their federal character.77
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
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
72 United States v. Reich, 479 F.3d 179, 184 (2d Cir. 2007).
73 18 U.S.C. 1961, 1956(c)(7)(A).
74 18 U.S.C. 2, 3, 371, 1512(k), 4.
75 18 U.S.C. 1512(h).
76 18 U.S.C. 1512(f).
77 18 U.S.C. 1512(g).

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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 one year, or both.78
The fine of crimes punishable by imprisonment for not more than one year is not
more than $100,000 (not more than $200,000 for organizations).79 The subsection
does not proscribe obstructing a private individual who seeks information of criminal
activity in order to report it to federal authorities.80
Subsection 1512(d) harassment offenses are RICO and money laundering
predicate offenses.81 The provisions of law relating to principals, accessories after
the fact, and conspiracy apply with equal force to offenses under subsection
1512(d),82 as do the provisions elsewhere in Section 1512 relating to extraterritorial
application,83 and abolition of the need to show pendency or knowledge of the federal
character of the obstructed proceedings or investigation.84 Subsection 1512(d)
harassment, however, cannot provide the basis for a misprision prosecution since the
subsection’s offenses are not felonies.85
Obstructing Federal Courts (18 U.S.C. 1503)
The Omnibus Provision.
Unlike Section 1512, Section 1503 does not to apply to the obstruction of
Congressional or administrative proceedings,86 and in most circuits at least it does not
78 18 U.S.C. 1512(d).
79 18 U.S.C. 3571, 3581.
80 Camelio v. American Federation, 137 F.3d 666, 671-72 (1st Cir. 1998).
81 18 U.S.C. 1961, 1956(c)(7)(A).
82 18 U.S.C. 2, 3, 371, 1512(k).
83 18 U.S.C. 1512(h).
84 18 U.S.C. 1512(f), (g).
85 18 U.S.C. 4 (“Whoever, having knowledge of the actual commission of a felony. . .”).
Crimes punishable by imprisonment for not more than one year are class A misdemeanors,
18 U.S.C. 3581.
86 Both sections are discussed in Twenty-Second Survey of White Collar Crime: Obstruction
of Justice
, 44 AMERICAN CRIMINAL LAW REVIEW 794 (2007).

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apply to obstruction unless the impeded proceedings are pending.87 Nevertheless, it
condemns obstructing pending judicial proceedings by means of any of four methods.
Three explicitly address interfering with federal jurors or court officials; the fourth,
the so-called omnibus provision, speaks to interfering with the “due administration
of justice”:
I. Whoever
II. A. corruptly or
B. by threats or force, or
C. by any threatening letter or communication,
III. A. influences,
B. obstructs, or
C. impedes, or
D. endeavors to
1. influence,
2. obstruct, or
3. impede,
IV. the due administration of justice,
shall be punished as provided in subsection (b).88
Subsection 1503(b) calls for murder and manslaughter to be punished as those
crimes are punished when committed in violation of sections 1111 and 1112;89
attempted murder, attempted manslaughter, or any violation involving a juror called
to hear a case relating to a class A or B felony is punishable by imprisonment for not
more than 20 years;90 and all other offenses by imprisonment for not more than 10
years.
The courts often observe that to convict under this omnibus or “catchall”
provision the government must prove beyond a reasonable doubt: “(1) that there was
a pending judicial proceeding, (2) that the defendant knew this proceeding was
pending, and (3) that the defendant then corruptly endeavored to influence, obstruct,
or impede the due administration of justice.”91
87 United States v. Aguilar, 515 U.S. 593, 599 (1995), citing, Pettibone v. United States, 148
U.S. 197, 207 (1893); but see conflicted lower appellate court opinions cited infra note 96.
88 18 U.S.C. 1503(a).
89 18 U.S.C. 1111 outlaws murder within the special maritime and territorial jurisdiction of
the United States. First degree murder under Section 1111 is punishable by death or life
imprisonment; second degree by imprisonment for any term of years or for life, 18 U.S.C.
1111(b). 18 U.S.C. 1112 outlaws manslaughter within the special maritime and territorial
jurisdiction of the United States. Voluntary manslaughter under Section 1112 is punishable
by imprisonment for not more than 10 years and a fine of not more than $250,000;
involuntary manslaughter by imprisonment for not more than 6 years and a fine of not more
than $250,000.
90 Class A felonies are those punishable by imprisonment for any term of years or by life
imprisonment; Class B felonies are those punishable by a maximum term of imprisonment
greater than 20 years, 18 U.S.C. 3581.
91 United States v. Monus, 128 F.3d 376, 387 (6th Cir. 1997); see also, United States v.
Macari
, 453 F.3d 926, 936 (7th Cir. 2006); United States v. Cueto, 151 F.3d 620, 633 (7th
Cir. 1998); United States v. Brenson, 104 F.3d 1267, 1275 (11th Cir. 1997); United States

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As to the first two elements, the Supreme Court has maintained for over a
century that “a person is not sufficiently charged with obstructing or impeding the
due administration of justice in a court unless it appears that he knew or had notice
that justice was being administered in such court.”92 There is no requirement that
the defendant’s endeavors succeed93 or even that they were capable of succeeding (as
long as the accused was unaware of the futility of his efforts to obstruct).94
In order to “corruptly endeavor” to obstruct the due administration of justice,
“[t]he action taken by the accused must be with an intent to influence judicial or
grand jury proceedings. . . . Some courts have phrased this showing as a nexus
requirement – that the act must have a relationship in time, causation, or logic with
the judicial proceedings. In other words, the endeavor must have the natural and
probable effect of interfering with the due administration of justice.”95 The Supreme
Court’s observations, notwithstanding, the courts are somewhat divided over whether
the obstructed judicial proceedings must actually be pending.96
v. Wood, 6 F.3d 692, 695 (10th Cir. 1993).
92 United States v. Aguilar, 515 U.S. 593, 599 (1995), quoting, Pettibone v. United States,
148 U.S. 197, 206 (1893).
93 United States v. Aguilar, 515 U.S. at 599, 600; United States v. Macari, 453 F.3d 926,
939 (7th Cir. 2006); United States v. Quattrone, 441 F.3d 153, 170 (2d Cir. 2006); United
States v. McBride
, 362 F.3d 360, 372 (6th Cir. 2004); United States v. Muhammad, 125 F.3d
608, 620 (8th Cir. 1997). Perhaps since an endeavoring-to-obstruct charge covers both
successful and unsuccessful endeavors and therefore eliminates the need to prove success,
prosecutors ordinarily charge an endeavor to obstruct or impede, even if there is evidence
of success and a charge of simple obstruction might have been brought.
94 United States v. Tackett, 113 F.3d 603, 611 (6th Cir. 1997)(“Although the omnibus
clause of §1503 requires that a defendant’s actions were intended to obstruct an actual
judicial proceeding, the government need not prove that the actions had their intended
effect. Furthermore, an endeavor to obstruct justice violates the law even if, unbeknownst
to the defendant, the plan is doomed to failure from the start”), citing, United States v.
Osborn
, 385 U.S. 323, 333 (1966).
95 United States v. Aguilar, 515 U.S. 593, 599 (1995), citing, United States v. Wood, 6 F.3d
692, 696 (10th Cir. 1993), and United States v. Walasek, 527 F.2d 676, 679 (3d Cir. 1975);
see also, United States v. Johnson, 485 F.3d 1264, 1270 (11th Cir. 2007); United States v.
Quattrone
, 441 F.3d 153, 170-71 (2d Cir. 2006); United States v. Joiner, 418 F.3d 863, 868
(8th Cir. 2005); United States v. Weber, 320 F.3d 1047, 1051 (9th Cir. 2003).
96 United States v. Quattrone, 441 F.3d 153, 170 (2d Cir. 2006)(emphasis added)(“In order
to convict for obstruction of justice under the omnibus clause of Section 1503, the
government must establish (1) that there is a pending judicial or grand jury proceeding
constituting the administration of justice. . .”); accord, United States v. Weber, 320 F.3d
1047, 1050 (9th Cir. 2003); United States v. Fassnacht, 332 F.3d 440, 447 (7th Cir. 2003);
United States v. Steele, 241 F.3d 302, 304-5 (3d Cir. 2001); United States v. Sharpe, 193
F.3d 852, 864 (5th Cir. 1999); United States v. Layne, 192 F.3d 556, 572 (6th Cir. 1999);
United States v. Frankhauser, 80 F.3d 641, 650-51 (1st Cir. 1966); United States v. Littleton,
76 F.3d 614, 618-19 (4th Cir. 1996); contra, United States v. Novak, 217 F.3d 566, 571-72
(8th Cir. 2000); see also United States v. Vaghela, 169 F.3d 729, 732-34 (11th Cir.
1999)(pendency not necessarily required in cases of conspiracy to violate Section 1503);
United States v. Bruno, 383 F.3d 65, 87 (2d Cir. 2004)(proceedings need not be pending but
there must be evidence from which to infer that they were anticipated in the case of a

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The courts may be at odds as well over whether the due administration of justice
in Section 1503 may be obstructed by corrupting a witness before a federal judicial
proceeding or any other obstruction covered by 18 U.S.C. 1512 or 1513. The Second
Circuit held in 1991 that when Congress enacted the more specific witness tampering
and witness retaliation provisions of sections 1512 and 1513 it intended to remove
those crimes from the omnibus clause’s inventory of proscriptions.97 The other
circuits, to the extent they have later addressed the issue, disagree.98 Notwithstanding
apparent opportunities to reconsider,99 the Second Circuit has found it unnecessary
to do so thus far.

The specific kinds of misconduct which will provide the basis for a prosecution
under the omnibus clause of Section 1503 vary considerably.100 Subsection 1515(c),
conspiracy to violate Section 1503).
97 United States v. Masterpol, 940 F.2d 760, 762 (2d Cir. 1991).
98 United States v. Tackett, 113 F.3d 603, 607 (6th Cir. 1997) (“The Second Circuit has held
that the enactment of new witness protection laws in 1982 and 1988 means that the
government must prosecute witness tampering under the new law, 18 U.S.C. §1512, rather
than under §1503. The other circuits that have addressed the issue have reached the
opposite conclusion. See United States v. Malone, 71 F.3d 645, 659 (7th Cir. 1995)(noting
that Fourth, Ninth and Eleventh Circuits have held that the omnibus clause of §1503
continues to cover witness tampering; United States v. Kenny, 973 F.2d 339, 342-43 (4th
Cir. 1992)(noting the same for First, Fifth, Eighth and Ninth Circuits); see also United
States v. Ladum
, 141 F.3d 1328, 1337-338 (9th Cir. 1998); United States v. LeMoure, 474
F.3d 37, 40-41 (1st Cir. 2007).
99 United States v. Bruno, 383 F.3d 65, 87 n.16 (2d Cir. 2004)(“Because the defendants
were prosecuted for lying to federal investigators instead of federal grand jury witnesses,
we had no occasion to address the issue discussed above regarding our conclusion in
Masterpol that charges of lying to, or trying to influence grand jury witnesses should be
prosecuted under §1512”); United States v. Genao, 343 F.3d 578, 585 (2d Cir. 2003)(“We
hold that the indictment in the instant case does not set forth a sufficient nexus between
Genao’s false statements and a federal judicial proceeding so as to establish a violation of
§1503”); United States v. Schwarz, 283 F.3d 76, 110 (2d Cir. 2002); United States v.
Quattrone
, 441 F.3d 153, 169-73 (2d Cir. 2006)(finding evidence sufficient to establish a
nexus between the defendant’s destruction of documents and the grand jury proceedings for
which they had been subpoenaed).
100 United States v. Brown, 459 F.3d 509, 530-31 (5th Cir. 2006)(false testimony before the
grand jury); United States v. Macari, 453 F.3d 926, 936 (7th Cir. 2006)(directing a witness
to lie before the grand jury); United States v. Quattrone, 441 F.3d 153, 169-73 (2d Cir.
2006)(destruction of documents sought under a grand jury subpoena); United States v.
Joiner
, 418 F.3d 863, 865-66 (8th Cir. 2005)(retaliatory economic harassment of federal
judge and prosecutors responsible for the defendant’s earlier conviction); United States v.
Weber
, 320 F.3d 1047, 1051 (9th Cir. 2003)(threatening to kill the judge presiding over the
defendant’s supervised release revocation hearing); United States v. Novak, 217 F.3d 566,
569-72 (8th Cir. 2000)(submission of false financial reports in violation of court order
governing supervised release); United States v. Fleming, 215 F.3d 930, 933-34 (9th Cir.
2000)(filing false liens against the property of a federal judge in an effort to influence the
judge’s handling of a civil action); United States v. Layne, 192 F.3d 556, 572 (6th Cir.
1999)(attempt to influence the testimony of a criminal trial witness); United States v.
Muhammad
, 120 F.3d 688 (7th Cir. 1997)(civil trial juror’s solicitation of a bribe); United

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however, makes it clear that bona fide legal advice will not provide the basis for a
prosecution under the omnibus clause of Section 1503 nor under any other
obstruction of justice prohibition found in the same chapter for that matter.101
Interfering with Jurors or Judicial Officials (18 U.S.C. 1503).
Before 1962, federal law featured a separate criminal prohibition against bribing
federal judges or jurors to prosecute such misconduct along with Section 1503, 18
U.S.C. 206 (1958 ed.).102 Then in 1962 the provisions of section 206 disappeared
when Congress revised federal bribery statutes and merged a number of individual
sections into the general proscriptions now found in 18 U.S.C. 201. That section 201
applies to bribery involving judges and certainly to bribery involving jurors seems
clear from its language,103 its history,104 and the limited available case law.105 Since
States v. Atkin, 107 F.3d 1213 (6th Cir. 1997) (promising to bribe a trial judge).
101 “This chapter does not prohibit or punish the providing of lawful, bona fide, legal
representation services in connection with or anticipation of an official proceeding,” 18
U.S.C. 1515(c).
102 United States v. Margoles, 294 F.2d 371, 371 (7th Cir. 1961)(defendant charged with jury
tampering under sections 206 and 1503); United States v. Benallo, 216 F.2d 891, 895 (10th
Cir. 1954)(upholding convictions for jury tampering in violation of sections 206 and 1503);
United States v. Zullo, 151 F.2d 560, 560-62 (3d Cir. 1945)(upholding jury tampering
convictions under earlier versions of sections 206 and 1503); Slade v. United States, 85 F.2d
786 (10th Cir. 1936).
103 “[T]he term ‘public official’ means . . . person acting for or on behalf of the United
States, or any department, agency or branch of Government thereof. . . in any official
function, under or by authority of any such department, agency, or branch of Government,
or a juror . . . (b) Whoever – (1) directly or indirectly, corruptly gives, offers or promises
anything of value to any public official or person who has been selected to be a public
official, or offers or promises any public official or any person who has been selected to be
a public official to give anything of value to any other person or entity, with intent – (A) to
influence any official act . . .(2) being a public official or person selected to be a public
official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to
receive or accept anything of value personally or for any other person or entity, in return for:
(A) being influenced in the performance of any official act. . . shall be imprisoned for not
more than fifteen years . . .” 18 U.S.C. 201(a)(1),(b)(1),(2).
104 “Sections 201 through 213 of present title 18 of the United States Code comprise nine
general bribery sections and four subsections prohibiting bribery in special cases. . . . The
bill combines into a single section (201) and renders uniform the disparate provisions of the
nine general bribery sections (. . . secs. 206, 207, and 208, judges and judicial officers
including jurors. . .),” H.Rept. 87-748, at 15 (1961).
105 United States v. DeAlesandro, 361 F.2d 694, 699-700 (2d Cir. 1966)(“Defendant
contends that she was charged in two different counts for what amounted to the same crime.
One count referred to 18 U.S.C. 201. . . . The second charged violation of 18 U.S.C. 1503.
. . . It is true that the two counts charged essentially the same acts. . . . The fatal defect in the
argument is that Congress has explicitly made defendant’s conduct criminal in separate
statutes, and has indicated that the two are not to be regarded as defining the same offense.
. . . [Their] history makes clear the congressional intent to create two separate offenses,
separately indictable and separately punishable ”); United States v. Henley, 238 F.3d 1111,
(9th Cir. 2001)(“We note that only one court of appeals appears to have addressed the

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1962, however, such cases appear to have been prosecuted in most instances under
Section 1503 alone.106
Bribery and other forms of jury corruption fall within the proscriptions of the
omnibus clause of Section 1503,107 but are more explicitly condemned in the
remainder of the section.108 On its face, the section covers both tampering and
retaliation with federal grand jurors, petite jurors, magistrates, and other judicial
officials. The conduct it outlaws may take the form of threats, force, threatening
letters or other communication, corruption (e.g., bribery), or in retaliation, personal
injury or property damage. Yet the offense is only complete if the misconduct is
perpetrated in an endeavor to influence, intimidate or impede a juror or judicial
official or on account of the performance of the duties of such a position.
The section carries a general maximum penalty of imprisonment for not more
than 10 years and, with one unusual exception, an escalating penalty structure for
more serious violations.109 Thus, the offense is punishable by imprisonment for not
question of whether a defendant who is involved in jury tampering may obtain a new trial
on that ground. . . .(Under 18 U.S.C. 201, a defendant faces imprisonment of up to 15 years
for bribery of a juror.) Here, there is no allegation that Henley participated in the tampering
incident, only that he was aware of it”).
106 United States v. DeLaRosa, 171 F.3d 215, 217-18 (5th Cir. 1999); United States v.
Borders
, 693 F.2d 1318, 1319 (11th Cir. 1982); United States v. Neiswender, 590 F.2d 1269,
1270 (4th Cir. 1979); United States v. Quinn, 543 F.2d 640, 642-43 (8th Cir. 1976); United
States v. Osborn
, 350 F.2d 497, 498 (6th Cir. 1965), aff’d, 385 U.S. 323 (1966); United
States v. Hoffa
, 349 F.2d 20, 26 (6th Cir. 1965), aff’d, 385 U.S. 293 (1966); but see, United
States v. Muhammad
, 120 F.3d 688, 693-95 (7th Cir. 1997); United States v. DeAlesandro,
361 F.2d 694, 699-700 (2d Cir. 1966).
107 United States v. Bashaw, 982 F.2d 168 (6th Cir. 1992)(“He contends that the ‘omnibus
clause’ of subsection 1503, prohibiting attempts corruptly to influence the due
administration of justice, does not apply to conduct directed toward jurors. . . . This
argument is without merit”); see also, United States v. Muhammad, 120 F.3d 688, 693-95
(7th Cir. 1997)(juror’s solicitation of a bribe comes within the omnibus provision).
108 “Whoever corruptly, or by threats or force, or by any threatening letter or
communication, endeavors to influence, intimidate, or impede any grand or petit juror, or
officer in or of any court of the United States, or officer who may be serving at any
examination or other proceeding before any United States magistrate judge or other
committing magistrate, in the discharge of his duty, or injures any such grand or petit juror
in his person or property on account of any verdict or indictment assented to by him, or on
account of his being or having been such juror, or injures any such officer, magistrate judge,
or other committing magistrate in his person or property on account of the performance of
his official duties . . . shall be punished as provided in subsection (b). If the offense under
this section occurs in connection with a trial of a criminal case, and the act in violation of
this section involves the threat of physical force or physical force, the maximum term of
imprisonment which may be imposed for the offense shall be the higher of that otherwise
provided by law or the maximum term that could have been imposed for any offense charged
in such case,” 18 U.S.C. 1503(a).
109 The punishment for an offense under this section is – (1) in the case of a killing, the
punishment provided in sections 1111 and 1112; (2) in the case of an attempted killing, or
a case in which the offense was committed against a petit juror and in which a class A or B

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more than 20 years if it involves either an attempted killing or is committed against
a juror in a case involving a class A or B felony, i.e. a felony punishable by death, life
imprisonment or a maximum term of imprisonment of at least twenty-five years, 18
U.S.C. 3559. If the offense involves a murder it is punishable in the same manner
as an offense under 18 U.S.C. 1111, that is, by death or imprisonment for any term
of years or for life. In something of a curiosity, if the offense involves manslaughter
it is punishable in the same manner as an offense under 18 U.S.C. 1112, that is, by
imprisonment for not more than 10 years in the case of voluntary manslaughter and
not more than 6 years in the case of involuntary manslaughter. Thus, the penalty for
a violation of Section 1503 that involves voluntary manslaughter is no more severe
than for a violation that does not involve a killing (10 years) and less severe (6 years)
if the killing is involuntary manslaughter.
Auxiliary Offenses and Liability.
Conspiracy to violate Section 1503 can only be prosecuted under the general
conspiracy statute, 18 U.S.C. 371;110 Section 1503 has no individual conspiracy
provision. Section 1503 offenses are RICO predicate offenses and consequently
money laundering predicate offenses.111 Those who aid and abet a Section 1503
offense are liable as principals and are punishable as if they committed the offense
themselves.112 An individual who knows that another has committed a Section 1503
offense and nevertheless assists the offender in order to hinder his capture, trial or
punishment is in turn punishable as an accessory after the fact.113 And an individual
who affirmatively conceals the commission of a Section 1503 by another is guilty of
misprision.114
Section 1503 contains no explicit statement of extraterritorial application.
Nevertheless, the courts seem likely to conclude that overseas misconduct in
violation of Section 1503 may be prosecuted in this country.115
felony was charged, imprisonment for not more than 20 years, a fine under this title, or both;
and (3) in any other case, imprisonment for not more than 10 years, a fine under this title,
or both,” 18 U.S.C. 1503(b).
110 E.g., United States v. Bruno, 383 F.3d 65, 87-88 (2d Cir. 2004).
111 18 U.S.C. 1961, 1956(c)(7)(A). E.g., United States v. Connolly, 341 F.3d 16, 19 (1st Cir.
2003)(Section 1503 offenses as RICO predicates).
112 18 U.S.C. 2.
113 18 U.S.C. 3.
114 18 U.S.C. 4.
115 Cf., United States v. Bowman, 260 U.S. 94, 98 (1922)(“But the same rule of
interpretation [of purely domestic application] should not be applied to criminal statutes
which are, as a class, not logically dependent on their locality for the government’s
jurisdiction, but are enacted because of the right of the government to defend itself against
obstruction, or fraud wherever perpetrated. . . . We 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 subsection”); Ford v. United States, 273 U,.S. 593, 623 (1927)

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Subsection 1512(i) establishes venue for prosecution under Section 1512 or
Section 1503 in any district where the obstruction occurs or where the obstructed
proceeding occurs or is to occur. The subsection was enacted to resolve a conflict
among the circuits on the question of whether venue for a prosecution of either of the
two sections was proper in the district of the obstructed proceeding.116 Thereafter,
the Supreme Court clarified venue’s constitutional boundaries when it declared that
venue is ordinarily only proper where a conduct element of the offense occurs, 117 but
left for another day the question of whether venue might be proper in a district where
the effect of the offense is felt.118 The limited subsequent case law on the question
has arisen under other statutes and holds that the “effects” basis for venue remains
valid “only when Congress had defined the essential conduct elements in terms of
those effects.”119
Retaliating Against Federal Witnesses (18 U.S.C. 1513)
Congress outlawed retaliation against federal witnesses under Section 1513 at
the same time it outlawed witness tampering under Section 1512.120 Although
somewhat more streamlined, Section 1513 shares a number of attributes with Section
1512. The definitions in Section 1515 apply to both sections.121 Consequently, the
prohibitions apply to witnesses in judicial, Congressional and administrative
proceedings.122 There is extraterritorial jurisdiction over both offenses.123 In slightly
different terms, both protect witnesses against murder and physical abuse –
(“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”).
116 United States v. Gonzalez, 922 F.2d 1044, 1054 (2d Cir. 1991); United States v. Allen,
24 F.3d 1180, 1183 (10th Cir. 1994).
117 United States v. Cabrales, 524 U.S. 1, 7-8 (1998); United States v. Rodriguez-Moreno,
526 U.S. 275, 280 (1999).
118 United States v. Rodriguez-Moreno, 526 U.S. at 279 n.2.
119 United States v. Bowens, 224 F.3d 302, 314 (4th Cir. 2000); United States v. Bin Laden,
146 F.Supp.2d 373, 379-80 (S.D.N.Y. 2001); United States v. Kim, 246 F.3d 186, 193
(2001).
120 P.L. 97-291, 96 Stat. 1249, 1250 (1982).
121 18 U.S.C. 1515(a).
122 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”).
123 18 U.S.C. 1512(h), 1513(d).

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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,124 inflicting or threatening to inflict bodily injury, damaging or
threatening to damage property,125 and conspiracies to do so.126 It also prohibits
economic retaliation against federal witnesses, but only witnesses in court
proceedings and only on criminal cases.127 It does not reach economic retaliation
124 “(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 20 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).
125 “(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 ten 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).
126 “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(e)*. There are two subsections 1513(e); one prohibits
economic retaliation and other conspiracy; 1513(e)* is the conspiracy subsection.
Conspiracy to violate Section 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).
127 “(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(e).
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

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against witnesses on the basis of information relating to the violations of supervised
release, bail, parole, or probation conditions.
To satisfy the assault prong of Section 1513, the government must prove that the
defendant bodily injured another in retaliation for the victim’s testimony or service
as a government informant.128 The extent of the injuries need not be extensive,129 nor
in the case of a threat even carried out.130 As a general rule, the intent to retaliate
need not have been the sole motivation for the attack.131

Section 1513 offenses are RICO predicate offenses and consequently money
laundering predicate offenses.132 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.133 Those who aid and abet a Section 1513 offense
are liable as principals and are punishable as if they committed the offense
themselves.134 An individual who knows another has committed a Section 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.135 And an individual
who affirmatively conceals the commission of a Section 1513 by another is guilty of
misprision.136
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.”
128 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. Brown, 937 F.2d 32, 36 (2d Cir. 1991); United States v. Beliveau, 802 F.2d
553, 562 (1st Cir. 1986).
129 United States v. Cunningham, 54 F.3d 295, 299 (7th Cir. 1995).
130 United States v. Maggitt, 794 F.2d 590, 593-94 (5th Cir. 1986).
131 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”).
132 18 U.S.C. 1961(1), 1956(c)(7)(A).
133 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).
134 18 U.S.C. 2.
135 18 U.S.C. 3.
136 18 U.S.C. 4.

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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,137 but deals primarily with obstructing
Congressional or federal administrative proceedings:
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.138
Prosecutions under Section 1505 have been relatively few, at least until recently,
and most of these arise as obstructions of administrative proceedings.139 “The crime
of obstruction of [such] proceedings has three essential elements. First, there must
be a proceeding pending before a department or agency of the United States. Second,
the defendant must be aware of the pending proceeding. Third, the defendant must
137 “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.
138 18 U.S.C. 1505.
139 E.g., 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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have intentionally endeavored corruptly to influence, obstruct or impede the pending
proceeding.”140
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 Section
1505. In doing so, it rejected the notion “that [section] 1505 applies only to
adjudicatory or rule-making activities, and does not apply to wholly investigatory
activity.”141 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.142 The courts seem to see comparable breadth in the
140 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).
141 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.
142 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

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Congressional equivalent (“obstructing the due and proper exercise of the power of
inquiry” by Congress and its committees).143
In the case of either Congressional or administrative proceedings, Section 1505
condemns only that misconduct which is intended to obstruct the administrative
proceedings or the due and proper exercise of the power of inquiry.144 In order to
overcome judicially-identified uncertainty as to the intent required,145 Congress added
a definition of “corruptly” in 1996: “As used in Section 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.146
Section 1505 offenses are not RICO or money laundering predicate offenses.147
Section 1505 has neither separate conspiracy provision nor an explicit exterritorial
jurisdiction provision. However, conspiracy to obstruct administrative or
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”).
143 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”).
144 United States v. Leo, 941 F.2d 181, 199 (3d Cir. 1991); United States v. Mitchell, 877
at 299; United States v. Laurins, 857 F.2d 529, 536-37 (9th Cir. 1988).
145 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).
146 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).
147 18 U.S.C. 1961(1), 1956(c)(7).

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Congressional proceedings may be prosecuted under 18 U.S.C. 371,148 and the courts
would likely find that overseas violations of Section 1505 may be tried in this
country.149 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.150
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. 18 U.S.C. 371.151
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 States; and (3) an overt
act by one of conspirators in furtherance of the scheme.152 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”153 by “deceit, craft or
trickery, or at least by means that are dishonest.”154 The scheme may be designed to
148 E.g., United States v. Blackwell, 459 F.3d 739, 748 (6th Cir. 2006).
149 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”).
150 18 U.S.C. 2, 3, 4. E.g., United States v. Leo, 941 F.2d 181, 184 (3d Cir. 1991).
151 For addition discussion of Section 1512 see, Twenty-Second Survey of White Collar
Crime: Federal Criminal Conspiracy
, 44 AMERICAN CRIMINAL LAW REVIEW 523 (2007).
152 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).
153 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).
154 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 mens
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. . .’”).

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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.155
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.”156
Conspirators must be shown to have exhibited the same level of intent as required for
the underlying substantive offense.157 The overt act need only be furtherance of the
scheme; it need not be the underlying substance offense or even a crime at all.158
Conspirators are liable for the underlying offense should it be accomplished and for
any reasonably foreseeable offense committed by a coconspirator in furtherance of
the common plot.159
As noted earlier, a number of federal statues including sections 1512 and 1513
include within their proscriptions a separate conspiracy feature that outlaws plots to
155 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’”).
156 United States v. Snype, 441 F.3d 119, 142 (2d Cir. 2006); see also, United States v.
Munoz-Frnaco
, 487 F.3d 25, 45 (1st Cir. 2007); United States v. Mann, 493 F.3d 484, 492
(5th Cir. 2007); United States v. Blackwell, 459 F.3d 739, 760 (6th Cir. 2006); United States
v. Soy
, 454 F.3d 766, 768 (7th Cir. 2006); United States v. Chong, 419 F.3d 1076, 1079 (9th
Cir. 2005); United States v. Weidner, 437 F.3d 1023, 1033 (10th Cir. 2006); United States
v. Ndiaye
, 434 F.3d 1270, 1294 (11th Cir. 2006).
157 United States v. Feola, 420 U.S. 671, 686 (1975); United States v. Munoz-Franco, 487
F.3d 25, 45 (1st Cir. 2007); United States v. Soy, 454 F.3d 766, 768 (7th Cir. 2006); United
States v. Weidner
, 437 F.3d 1023, 1033 (10th Cir. 2006); cf., United States v. Ching Tang Lo,
447 F.3d 1212, 1232 (9th Cir. 2006).
158 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).
159 Pinkerton v. United States, 328 U.S. 640, 646-48 (1946); United States v. Moran, 493
F.3d 1002, 1009 (9th Cir. 2007); United States v. Roberson, 474 F.3d 432, 433 (7th Cir.
2007); United States v. Lake, 472 F.3d 1247, 1265 (10th Cir. 2007).

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violate the section’s substantive provisions.160 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.161 The disadvantage is that they may lack the venue flexibility afforded by
subsection 371 and other conspiracy provisions that contain an overt act element.162
Although sections 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
Criminal Contempt of Court.
The final and oldest of the general obstruction provisions is contempt. The
crime of contempt of court comes to us from antiquity. Blackstone speaks of the
power to punish disturbances in the presence of the king’s courts that existed before
the Conquest,163 and he notes that the common law classified as contempt the failing
to heed the writs or summons of the king or his courts of justice.164 The first
Congress empowered the federal courts “to punish by fine or imprisonment, at the
discretion of said courts, all contempts of authority in any cause or hearing.”165
Contemporary federal contempt is derived from statute, rule and inherent or
auxiliary authority. Section 401 of title 18 of the United States Code notes the power
of a federal court to punish by fine or imprisonment misconduct committed in the
160 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.
161 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).
162 The Constitution provides that crimes must be tried in the state and district in which they
occur, U.S. Const. Art. II, §2, cl.3; Amend. VI. The Supreme Court has said that when the
elements of a crime are committed in more than one state or district the crime may be tried
in any district in which one of its elements is committed, United States v. Rodriguez-
Moreno
, 526 U.S. 275, 280-82 (1999). Conspiracies with an overt act element may be tried
anywhere an overt act in furtherance of the conspiracy is committed, United States v.
Cabrales
, 524 U.S. 1, 8-9 (1998).
163 IV BLACKSTONE, COMMENTARIES OF THE LAWS OF ENGLAND 124 (1769).
164 Id. at 122 (“Contempts against the prerogative may also be . . . by disobeying the king’s
lawful commands; whether by writs issuing out of his courts of justice, or by a summons to
attend his privy council, or by letters from the king to a subject commanding him to return
from beyond the seas. . . . Disobedience of any of these commands is a high misprision and
contempt”).
165 1 Stat. 83 (1789).

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presence of the court or by its officers and disobedience of its orders.166 Rule 42 of
the Federal Rules of Criminal Procedure supplies procedures to be followed in such
cases, other than those dealt with summarily. Section 402 provides for a jury trial
when the allegations of criminal contempt also constitute separate federal or state
criminal offenses.167
Contempt may be civil or criminal. Civil contempt is coercive and remedial,
calculated to compel the recalcitrant to obey the orders of the court or compensate an
opponent aggrieved by the failure to do so.168 Criminal contempt is punitive.169
166 “A court of the United States shall have power to punish by fine or imprisonment, at its
discretion, such contempt of its authority, and none other, as – (1) Misbehavior of any
person in its presence or so near thereto as to obstruct the administration of justice; (2)
Misbehavior of any of its officers in their official transactions; (3) Disobedience or
resistance to its lawful writ, process, order, rule, decree, or command,” 18 U.S.C. 401.
167 “Any person, corporation or association willfully disobeying any lawful writ, process,
order, rule, decree, or command of any district court of the United States or any court of the
District of Columbia, by doing any act or thing therein, or thereby forbidden, if the act or
thing so done be of such character as to constitute also a criminal offense under any statute
of the United States or under the laws of any State in which the act was committed, shall be
prosecuted for such contempt as provided in section 3691 of this title [relating to jury trials
in criminal contempt cases] and shall be punished by a fine under this title or imprisonment,
or both. Such fine shall be paid to the United States or to the complainant or other party
injured by the act constituting the contempt, or may, where more than one is so damaged,
be divided or apportioned among them as the court may direct, but in no case shall the fine
to be paid to the United States exceed, in case the accused is a natural person, the sum of
$1,000, nor shall such imprisonment exceed the term of six months. This section shall not
be construed to relate to contempts committed in the presence of the court, or so near thereto
as to obstruct the administration of justice, nor to contempts committed in disobedience of
any lawful writ, process, order, rule, decree, or command entered in any suit or action
brought or prosecuted in the name of, or on behalf of, the United States, but the same, and
all other cases of contempt not specifically embraced in this section may be punished in
conformity to the prevailing usages at law. For purposes of this section, the term “State”
includes a State of the United States, the District of Columbia, and any commonwealth,
territory, or possession of the United States,” 18 U.S.C. 402.
168 International Union, United Mine Workers v. Bagwell, 512 U.S. 821, 827-28 (1994).
Civil contempt and other noncriminal judicial sanctions are beyond the scope of this report.
A partial list of such sanctions would include 28 U.S.C. 1927 (award cost expenses,
attorney's fees against attorneys who multiply proceedings); 28 U.S.C. 1826 (recalcitrant
witnesses); F.R.Civ.P. 11 (sanction a party or the party's attorney for filing groundless
pleadings, motions or other papers); F.R.Civ.P. 16(f) (sanction a party or party's attorney
for failure to abide by a pretrial order); F.R.Civ.P. 26(g) (sanction a party or party's attorney
for baseless discovery requests or objections); F.R.Civ.P. 30(g) (award expenses caused by
failure to attend a deposition or to serve a subpoena on a party to be deposed); F.R.Civ.P.
37(d), (g) (award expenses when a party fails to respond to discovery requests or fails to
participate in the framing of a discovery plan); F.R.Civ.P. 41(b) (dismiss an action or claim
of a party that fails to prosecute, to comply with the Federal Rules or to obey an order of the
court); F.R.Civ.P. 56(g) (award expenses or contempt damages when a party presents an
affidavit in a summary judgment motion in bad faith or for the purpose of delay); F.R.App.
P. 38 (power to award damages and costs for frivolous appeal).
169 Id.

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A wide variety of obstructions of justice are punishable as criminal contempt of
court. They include:
- disobedience of court order to provide handwriting exemplars,170
- violation of temporary restraining order entered in unfair trade practices action,171
- unlawful disclosure by grand jurors of their vote or deliberations,172
-asset transfer in violation of bankruptcy court’s asset freeze order,173
- refusing to testify before the grand jury,174
- false statement to a probation officer,175
- vulgar insults addressed to court,176
- violation of a condition of supervised release,177
- fraudulently sold business opportunities in violation of court-ordered Federal
Trade Commission consent decree,178
- refusing to testify at trial,179
- violation of restraining order prohibiting harassment of the bankruptcy court,180
- violation of the court’s witness sequestration order,181
- failure to appear at the supervised release revocation hearing,182
- attorney’s repeated failure to follow court’s instructions relating to the conduct
of the trial,183
- threatening jurors,184
- retaliating against a witness in violation of the court’s restraining order,185
- defendant’s contacting witnesses in violation of the court’s order.186
Criminal contempt comes in two forms, direct and indirect. Direct contempt
involves misconduct in the presence of the court and is punished to ensure the
170 In re Solomon, 465 F.3d 114 (3d Cir. 2006).
171 United States v. Love, 449 F.3d 1154 (11th Cir. 2006).
172 United States v. Navarro-Vargas, 408 F.3d 1184 (9th Cir. 2005).
173 United States v. Brennan, 395 F.3d 59 (2d Cir. 2005).
174 Alwan v. Ashcroft, 388 F.3d 507 (5th Cir. 2004).
175 United States v. Loudon, 385 F.3d 795 (2d Cir. 2004).
176 United States v. Marshall, 371 F.3d 42 (2d Cir. 2004).
177 United States v. Smith, 344 F.3d 479 (6th Cir. 2003).
178 United States v. Ferrara, 334 F.3d 774 (2003).
179 United States v. Kimble, 305 F.3d 480 (6th Cir. 2002).
180 United States v. Mourad, 289 F.3d 174 (1st Cir. 2002).
181 F.J. Hnashaw Enterprises, Inc. v. Emerald River Development, Inc., 244 F.3d 1128 (9th
Cir. 2001).
182 United States v. Bernardine, 237 F.3d 1279 (11th Cir. 2001).
183 United States v. Galin, 222 F.3d 1123 (9th Cir. 2000).
184 United States v. Rrapi, 175 F.3d 742 (9th Cir. 1999).
185 United States v. Rapone, 131 F.3d 188 (D.C. Cir. 1997).
186 United States v. Grisanti, 116 F.3d 984 (2d Cir. 1997).

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decorum of the court and the dignity of the bench.187 Indirect contempt consists of
those obstructions committed outside the presence of the court.188 Direct contempt
may be summarily punished; indirect contempt may not.189
Criminal Contempt.
Summary contempt. A court may summarily punish as direct criminal
contempt under subsection 401(1) and Rule 42(b) of the Federal Rules of Criminal
Procedure, “[m]isbehavior of any person in its presence or so near thereto as to
obstruct the administration of justice.”190 The range of misbehavior proscribed is
narrow, because the procedural protections afforded the offender are few. There is
no indictment, no right to counsel, no trial, no hearing, no right to present
exculpatory evidence.191 There is only the intentional act or omission by the offender
and the pronouncement of punishment by the court.
The proximity of misconduct occurring “so near . . . as to obstruct the
administration of justice” is a matter of physical proximity not proximity to the
subject matter of the proceedings. Thus, the misbehavior that may summarily be
punished does not include misconduct occurring elsewhere that has an adverse
impact or potentially adverse impact on the judicial proceedings, such as the tardy
arrival of an attorney at court,192 or a lawyer’s failure to present the court with a
doctor’s affidavit justifying his client’s absence,193 or a party’s efforts to influence a
juror during breakfast several floors removed from the courtroom,194 or a party’s
187 United States v. Rangolan, 464 F.3d 321, 324 (2d Cir. 2006), citing, International Union,
United Mineworkers v. Bagwell
, 512 U.S. 821, 832 (1994); In re Troutt, 460 F.3d 887, 893
(7th Cir. 2006).
188 United States v. Rangolan, 464 F.3d 321, 325 (2d Cir. 2006).
189 International Union, United Mineworkers v. Bagwell, 512 U.S. 821, 832, 827 n.2 (1994).
190 18 U.S.C. 401(1). Rule 42(b) supples the minimal procedural requirements, i.e.,
“Notwithstanding any other provision of these rules, the court (other than a magistrate
judge) may summarily punish a person who commits criminal contempt in its presence if the
judge saw or heard the contemptuous conduct and so certifies; a magistrate judge may
summarily punish a person as provided in 28 U.S.C. § 636(e). The contempt order must
recite the facts, be signed by the judge, and be filed with the clerk.”
191 United States v. Rangolan, 464 F.3d 321, 324 (2d Cir. 2006)(“Because the summary
contempt sanction is not subject to the usual requirements of a jury trial or notice and
opportunity to be heard, summary contempt is a rule of necessity, reserved for exception
circumstances and a narrow category of contempt”), citing, Harris v. United States, 382 U.S.
162, 164-65 (1965), and United States v. Marshall, 371 F.3d 42, 45 (2d Cir. 2004); see also,
United States v. Arredondo, 349 F.3d 310, 317 (6th Cir. 2003); United States v.
Oberhellmann,
946 F.2d 50, 53 (7th Cir.1991).
192 In re Smothers, 322 F.3d 438, 440 (6th Cir. 2003).
193 United States v. Cooper, 353 F.3d 161, 163-64 (2d Cir. 2003).
194 United States v. Rangolan, 464 F.3d 321, 327-28 (2d Cir. 2006) .

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failure to appear for depositions.195 Each of these might be punished as criminal
contempt, but not summarily.
On the other hand, a witness who in the presence of the court refuses to testify
at trial may be summarily punished for contempt,196 as may an individual who
urinates on the courtroom floor in the presence of the court197 or who addresses the
court or the jury in vulgar and insulting terms.198
The Sixth Amendment right to a jury trial limits the term of imprisonment
which a court may summarily impose to a maximum of six months.199
Violation of a court order. A court may punish as criminal contempt under
subsection 401(3) and the “show cause” procedures outlined in Rule 42(a) of the
Federal Rules of Criminal Procedure, “[d]isobedience or resistance to its lawful writ,
process, order, rule, decree, or command.”200 The conviction for criminal contempt
in a violation of subsection 401(3) requires the government to prove beyond a
reasonable doubt that the defendant willfully violated a reasonable specific court
195 Smith v. Smith, 145 F.3d 335, 342 (5th Cir. 1998).
196 United States v. Wilson, 421 U.S. 309, 314-15 (1975); Brown v. United States, 356 U.
148, 154-55 (1958). By the same token, false statements cannot be punished as contempt
unless they are so patently false that without reference to any other evidence they constitute
a clear refusal to testify rather than to deceive, United States v. Arredondo, 349 F.3d 310,
318 (6th Cir. 2003).
197 United States v. Perry, 116 F.3d 952, 956 (1st Cir. 1997).
198 United States v. Marshall, 371 F.3d 42, 46 (2d Cir. 2004); United States v. Seale, 461
F.2d 345, 370 (7th Cir. 1972); United States v. Murphy, 326 F.3d 501, 504 (4th Cir. 2003);
United States v. Browne, 318 F.3d 261, 266 (1st Cir. 2003); United States v. Rrapi, 175 F.3d
742,753-54 (9th Cir. 1999)(obscene outburst directed at jurors before they were polled). The
court in each of theses cases felt obliged to explain how the misconduct at issue constituted
an obstruction in the administration of justice.
199 United States v. Browne, 318 F.3d 261, 265 (1st Cir. 2003), citing, Codispoti v.
Pennsylvania,
318 F.3d 506, 511-12 (1974); United States v. Marshall, 371 F.3d 42, 48-9
(2d Cir. 2004); United States v. Linney, 134 F.3d 274, 280 (4th Cir. 1998).
200 18 U.S.C. 401(3). Section 401 also permits a court to punish contempt in the form of
“misbehavior of any of its officers in their official transactions,” 18 U.S.C. 401(2).
Subsection 401(2) is cited most often for the proposition that attorneys are not officers of
the court for purposes of the subsection, e.g., Cammer v. United States, 350 U.S. 399, 407-8
(1956); F.J. Henshaw Enterprises, Inc. v. Emerald River Development Inc., 244 F.3d 1128,
1136 n.5 (9th Cir. 2001); United States v. Griffin, 84 F.3d 820, 832 n.8 (7th Cir. 1996).
Otherwise, it is seldom prosecuted or cited, but see, United States v. Arredondo, 349 F.3d
310, 318-19 (6th Cir. 2003)(noting in passing that jurors and veniremen are officers of the
court for purposes of subsection 401(2)).

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order.201 Obstruction of justice is not an element of the offense,202 but a willful intent
is, which means that the defendant must have known of the order and have
deliberately or recklessly violated it.203 Mere negligence is not enough.204 A person
may not be found in criminal contempt of an unclear order of the court,205 but
disobedience of an invalid order is nonetheless punishable as criminal contempt.206
If not punished summarily, a person charged with criminal contempt is entitled
under Rule 42(a) to a statement of the essential facts underlying the charge, a
reasonable opportunity to prepare a defense, and notice of the time and place where
the hearing is to occur.207 A person so charged is also entitled to the assistance of
counsel; to be prosecuted by a disinterested prosecutor; to subpoena witnesses; to
examine and cross-examine witnesses; to present a defense; to the benefit of the
privilege against self-incrimination and of the double jeopardy bar; and, if the
contempt is to be punished by a term of imprisonment of more than six months, to
a jury trial.208 The right to be prosecuted by the United States Attorney or some other
neutral prosecutor is reenforced by the Rule,209 but may be waived by the person
charged.210
Section 401 does not set a maximum term of imprisonment or a maximum fine
level for criminal contempt. It simply states that criminal contempt may be punished
by imprisonment or by a fine or both. This approach has implications for things like
probation, special assessments, and terms of supervised release that turn upon the
201 Romero v. Drummond Co., Inc., 480 F.3d 1234, 1242 (11th Cir. 2007); United States v.
Mourad
, 289 F.3d 174, 180 (1st Cir. 2002); United States v. Ortlieb, 274 F.3d 871, 874 (5th
Cir. 2001); Ashcraft v. Conoco, Inc., 218 F.3d 288, 295 (4th Cir. 2000); United States v.
Vezina
, 165 F.3d 176, 178 (2d Cir. 1999); United States v. Rapone, 131 F.3d 188, 192 (D.C.
Cir. 1997); United States v. Doe, 125 F.3d 1249, 1254 (9th Cir. 1997).
202 United States v. Galin, 222 F.3d 1123, 1127 (9th Cir. 2000); United States v. Griffin, 84
F.3d 820, 832 (7th Cir. 1996).
203 United States v. Ortlieb, 274 F.3d 871, 875 (5th Cir. 2001); United States v. Marquardo,
149 F.3d 36, 43 n.4 (1st Cir. 1998); United States v. Themy-Kotronakis, 140 F.3d 858, 864
(10th Cir. 1998); United States v. Rapone, 131 F.3d 188, 195 (D.C. Cir. 1997).
204 United States v. Mottweiler, 82 F.3d 769, 772 (7th Cir. 1996).
205 Ashcroft v. Conoco, Inc., 218 F.3d 288, 299 (4th Cir. 2000).
206 Maness v. Meyers, 419 U.S. 449, 458 (1975); In re Criminal Contempt Proceedings
Against Crawford
, 329 F.3d 131, 138 (2d Cir. 2003); United States v. Mourad, 289 F.3d
174, 177-78 (1st Cir. 2002).
207 F.R.Crim.P. 42(a)(1).
208 International Union, United Mine Workers v. Bagwell, 512 U.S. 821, 826-27 (1994);
United States v. Dixon, 509 U.S. 688, 696 (1993); United States v. Glass, 361 F.3d 580, 590
n.13 (9th Cir. 2004).
209 F.R.Crim.P. 42(a)(2)(“The court must request that the contempt be prosecuted by an
attorney for the government, unless the interest of justice requires the appointment of
another attorney. If the government declines the request, the court must appoint another
attorney to prosecute the contempt”).
210 In re Reed, 161 F.3d 1311, 1317 (11th Cir. 1998).

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maximum term of imprisonment associated with a particular offense. Probation, for
example, is unavailable to those charged with a Class A or B felony,211 special
assessments range from $5 to $100 depending on the classification of the offense for
which an individual is convicted,212 and the maximum permissible term of supervised
release, if any, is determined in many instances by whether the offender has been
convicted of a Class A, B, C, D, or E felony or a misdemeanor other than a petty
offense.213
When the question has been raised, prosecutors have argued that criminal
contempt under section 401 is a class A felony since it is punishable by any term of
imprisonment up to and including life imprisonment.214 Defendants have argued
alternatively that criminal contempt under section 401 (1) should be considered
neither felony nor misdemeanor nor petty offense, or (2) should be classified
according to the sentence imposed or the sentencing maximum the court agrees to
accept, as is done when the question is whether a contempt case must be tried before
a jury.215 The Ninth Circuit chose a something of a middle ground and classified
criminal contempt according to the sentencing guideline range of the most analogous
offense under the Sentencing Guidelines.216
The Sentencing Guidelines, once binding but now advisory, exert a strong
influence over all federal sentencing.217 The guideline for contempt is not always
211 18 U.S.C. 3561(a)(1). A class A felony is an offense for which the maximum penalty
is death or the maximum term of imprisonment is life; a class B felony is an offense for
which the maximum term of imprisonment is 25 years or more, 18 U.S.C. 3559(a)(1), (2).
212 18 U.S.C. 3013.
213 18 U.S.C. 3583(b). Petty offenses are those misdemeanors and infractions other than
class A misdemeanors, 18 U.S.C. 19; class A misdemeanors are those offenses for the
maximum term of imprisonment is one year or less but more than 6 months, 18 U.S.C.
3559(a)(6).
214 United States v. Love, 449 F.3d 1154, 1158 (11th Cir. 2006); United States v. Carpenter,
91 F.3d 1282, 1284 (9th Cir. 1996).
215 Id.
216 United States v. Carpenter, 91 F.3d 1282, 1285 (9th Cir. 1996). The Sentencing
Guidelines appear to classify all contempt offenses as felonies, U.S.S.G. §§2J1.1, 2X5.1.
The Eleventh Circuit found it unnecessary to decide the question since any error committed
when the lower court sentenced the defendant to incarceration for 45 days and a 5-year term
of supervised released had been induced by the defendant, United States v. Love, 449 F.3d
1154, 1157 (11th Cir. 2006).
217 In United States v. Booker, 543 U.S. 220, 245 (2005), the Supreme Court held
unconstitutional but severable the statutory provision that made the Sentencing Guidelines
bind on federal courts. The results recommended by application of the Guidelines remain
one of several statutory factors which federal sentencing courts must consider, 18 U.S.C.
3553. In part because the other factors are very general while the Guidelines are very fact-
specific, the Guidelines contain to carry great weight, cf., Rita v. United States, 127 S.Ct.
2456, 2463-465 (2007) (a sentencing within the range recommended by the Guidelines may
be presumed reasonable); Gall v. United States, 127 S.Ct. 2933 (2007)(granting certiorari
to resolve a circuit split over whether a downward departure from the range recommended
by the Guidelines requires a finding of extraordinary circumstances).

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easily followed. The Guidelines assign a specific guideline for most federal offenses.
It assigns contempt to an obstruction of justice guideline, U.S.S.G. §2J1.1. But
section 2J1.1 states in its entirety, “apply §2X5.1 (Other Offenses).” The
accompanying commentary does explain that the Sentencing Commission decided
not to draft a specific guideline for contempt because of the variety of misconduct
that can constitute the offense.218 It goes on to say that in some instances the general
obstruction of justice guideline or the theft guideline may be most analogous for
violations of section 401.219 Section 2X5.1 declares “[i]f the offense is a felony for
which no guideline expressly has been promulgated, apply the most analogous
offense guideline.” Federal appellate court decisions indicate that this “most
analogous” standard has been used to mirror the misconduct underlying the contempt
conviction, although with seemingly conflicting results in some instances.220
Although the double jeopardy bar applies to criminal contempt,221 it does not
preclude the use of civil contempt against an individual who has been convicted of
criminal contempt of the same recalcitrance nor prosecution of a criminal contempt
charge after civil contempt has been imposed.222 Moreover, the double jeopardy
218 U.S.S.G §2J1.1, Commentary: Application Notes.
219 Id. The Commentary might also be used to support an argument that the Guidelines do
not apply when the sentencing court views the contempt at issue most appropriately
punished by term of imprisonment of less than 6 months, U.S.S.G. §2J1.1, Commentary:
Application Note
2 (“A first offense under 18 U.S.C. §228(a)(1) is not covered by this
guideline because it is a Class B misdemeanor”). The Guidelines only provide guidelines
for unassigned class A misdemeanors and all unassigned felonies, U.S.S.G. §§2X5.1, 2X5.2.
Class A misdemeanors are those offenses with a maximum term of imprisonment of between
6 months and one year, 18 U.S.C. 3559(a)(6).
220 E.g., United States v. Brennan, 395 F.3d 59, 72-4 (2d Cir. 2005)(application of the
larceny guideline for violation a bankruptcy court’s asset freeze order “amounted to stealing
money . . . that should have gone to his victims or creditors”); United States v. Ferrara, 334
F.3d 774, 777-78 (8th Cir. 2003)(application of the fraud guideline for violation of court-
ordered consent degree prohibiting activities relating to Federal Trade Commission Act
offenses); United States v. Kimble, 305 F.3d 480, 485-86 (6th Cir. 2002)(application of the
accessory after the fact guideline for a witness’s refusal to testify at a homicide trial); United
States v. Jones
, 278 F.3d 711, 716 (7th Cir. 2002)(application of the failure of a material
witness to appear for a witness’s refusal to testify before the grand jury and at trial); United
States v. Brady
, 168 F.3d 574, 577-79 (1st Cir. 1999)(application of the obstruction of justice
guideline for a witness’s refusal to testify before the grand jury); United States v. Fisher,
137 F.3d 1158, 1167 (9th Cir. 1998)(application of the failure to appear for judicial
proceedings guideline to a violation of bail condition requiring attendance at judicial
proceedings); United States v. Versaglio, 85 F.3d 943, 949 (2d Cir. 1996)(application of the
obstruction of justice guideline to a witness’s refusal to testify at trial).
221 United States v. Dixon, 509 U.S. 688, 696 (1993). As a general matter the Constitution
directs that no person shall “be subject for the same offense to be twice put in jeopardy of
the life or limb,” U.S. Const. Amend. V.
222 United States v. Lippitt, 180 F.3d 873, 879 (7th Cir. 1999); United States v. Marquardo,
149 F.3d 36, 41 (1st Cir. 1998).

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prohibition does bar sequential prosecution of criminal contempt and substantive
offenses arising out the same events.223
Contempt of Congress.
Statutory Contempt of Congress. Contempt of Congress is punishable by
statute and under the inherent powers of Congress.224 Congress has not exercised its
inherent contempt power for some time.225 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, Section 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
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.226
223 United States v. Forman, 180 F.3d 766, 768-69 (6th Cir. 1999); United States v.
Landerman
, 109 F.3d 1053, 1068 (5th Cir. 1997). Of course, the same events may lead to
prosecution under both section 401 and other obstruction offenses, e.g., United States v.
Senffner
, 280 F.3d 755, (7th Cir. 2002)(upholding convictions under 18 U.S.C. 401 and 1503
for transferring assets in violation a court-ordered asset freeze); United States v. United
States v. Novak
, 217 F.3d 566 (8th Cir. 2000)(upholding convictions under 18 U.S.C. 401
and 1503 for submitted false statements to the probation service).
224 2 U.S.C. 192-196; Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821); McGrain v.
Daugherty
, 273 U.S. 135 (1927).
225 For a more extensive discussion of contempt of Congress, see CRS Report RL34097,
Congress’s Contempt Power: Law, History, Practice, and Procedure.
226 2 U.S.C. 192. By operation of 18 U.S.C. 3571 the maximum fine is $100,000 ($200,000
for organizations).

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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.227
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.228
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.229 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.230
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.”231 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 obstinance. On at least two occasions, however,
apparently the courts have accepted nolo contendere pleas under Section 192 based
upon a false statement predicate.232
227 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.
. . ”).
228 Sinclair v. United States, 279 U.S. 263, 296 (1929).
229 Gojack v. United States, 384 U.S. 702, 713 (1966); Sinclair v. United States, 279 U.S.
263, 296 (1929).
230 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”).
231 Russell v. United States, 369 U.S. 749, 755-56 (1962), citing, Sinclair v. United States,
279 U.S. 263, 273 (1929).
232 Peterson, Prosecuting Executive Branch Officials for Contempt of Congress, 66 NEW
YORK UNIVERSITY LAW 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


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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.233 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.234
The Fifth Amendment protects witnesses against self-incrimination.235 The
protection reaches wherever incriminating testimonial communication is compelled
whether in criminal proceedings or elsewhere.236 It covers communications that are
either directly or indirectly incriminating, but only those that are “testimonial.”237
Organizations enjoy no Fifth Amendment privilege from self-incrimination,238 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
Judiciary, 98th Cong., 1st Sess. at 29 (1983)(prepared statement of Stanley Brand).
233 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).
234 McPhaul v. United States, 364 U.S. 372, 379 (1960); United States v. Bryan, 339 U.S.
323, 332-33 (1950).
235 U.S. Const. Amend. V (“No person . . . shall be compelled in any criminal case to be a
witness against himself. . .”).
236 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”).
237 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).
238 Braswell v. United States, 487 U.S. 99, 107-108 (1988).

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communication.239 An individual’s voluntarily created papers and records are by
definition not compelled communications and thus ordinarily fall outside the
privilege as well.240 Moreover, the protection may be waived if not invoked,241 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.242
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.243 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.244 In cases of such imprecision, the
government’s assertion of the pertinence necessary for conviction of statutory
contempt may become suspect.245
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.246 The Supreme Court in Watkins confirmed
that witness in Congressional proceedings are entitled to Fourth Amendment
239 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, 36-8 (2000).
240 Fisher v. United States, 425 U.S. 391, 409-10 (1976); United States v. Doe, 465 U.S.
605, 611-12 (1984).
241 Hutcheson v. United States, 369 U.S. 599, 608-609 (1962); Emspak v. United States,
349 U.S. 190, 195-96 (1955).
242 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).
243 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”);.
244 Watkins v. United States, 354 U.S. 178, 196-206 (1957).
245 United States v. Rumely, 345 U.S. 41, 46-8 (1953); Watkins v. United States, 354 U.S.
178, 207-16 (1957).
246 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 . . .”).

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protection, but did not explain what such protection entails.247 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.”248 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.249 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 of materials the Government
seeks will produce information relevant to the general subject of the grand jury’s
investigation.”250 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.251 Contempt convictions have been
247 Watkins v. United States, 354 U.S. 178, 188 (1957)(Witnesses “cannot be subjected to
unreasonable searches and seizures”).
248 Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 208 (1946).
249 “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) .
250 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.
251 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

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overturned, however, when a Fourth Amendment violation taints the underlying
subpoena or question.252
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 Section 192 has a duty to submit the matter to the grand jury.253 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.254
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 Section 192. No successful prosecution is
to the Court of Appeals of a District Court order enforcing a Congressional subpoena duces
tecum)(internal citations omitted).
252 United States v. McSurely, 473 F.2d 1178, 1194 (D.C. Cir. 1972).
253 “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.
254 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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possible if the Congressional tribunal in question has failed to follow its own rules
to the witness’s detriment.255 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,256 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 $1,000.257 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.258
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.259 The statute has always been
recognized as a supplement rather than a replacement of the inherent power.260 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.261 The inherent
255 Yellin v. United States, 374 U.S. 109, 123-24 (1963).
256 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.
257 “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.
258 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 1
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).
259 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).
260 Jurney v. MacCracken, 294 U.S. 125, 151 (1935); In re Chapman, 166 U.S. 661, 671-72
(1897).
261 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).

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power lay dormant and does not appear to have been invoked any time within the last
half century.262
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.263 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.264
Obstruction of Justice by Violence or Threat
In addition to the basic six federal crimes of obstruction of justice, federal law
features a host of criminal statutes that proscribe various obstructions according to
the obstructive means used. Thus, several federal statutes outlaw use of threats or
violence to obstruct federal government activities, quite aside from the general
obstruction provisions of sections 1512, 1513, 1505, and 1503.
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
designed to protect the families of judges and officials against threats and acts of
violence, 18 U.S.C. 115(a)(1)(A); another to protect judges and officials from threats,
18 U.S.C. 115(a)(1)(B); and a third to protect former judges, former officials and
their families from retaliatory threats and acts of violence, 18 U.S.C. 115(a)(2). 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,
262 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).
263 18 U.S.C. 6001-6005.
264 28 U.S.C. 1365.

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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 provided in subsection (b).265
Subsection 115(a)(1)(A) only condemns violence against the families of federal
officials, not violence committed against the officials themselves.266 Subsection
115(b) makes assault, kidnaping, murder, and attempts and conspiracies to commit
such offenses in violation of the section subject to penalties imposed for those crimes
when committed under other sections of the Code, i.e., 18 U.S.C. 111, 1201, 1111,
1113, and 1117. It makes threats to commit an assault punishable by imprisonment
for not more than 6 years and threats to commit any of the other offenses under the
section punishable by imprisonment for not more than 10 years, 18 U.S.C. 115(b)(4).
A fine of not more than $250,000 is available as an alternative or supplementary
sanction in either instance. Id.
(2)(Threats)
I. Whoever
II. threatens to
A. assault
B. kidnap, or
C. murder
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
265 18 U.S.C. 115(a)(1)(A).
266 United States v. Bennett, 368 F.3d 1343, 1352-354 (11th Cir. 2004), vac’d on other
grounds
, 543 U.S. 1110 (2005).

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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.267
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.268 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.269
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.270 The Ninth Circuit has suggested that the Supreme Court may have
resolved the split when it defined those “true threats” that lie beyond the protection
of the First Amendment’s free speech clause as “those statements where the speaker
means to communicate a serious expression of an intent to commit an act of unlawful
violence to a particular individual or group of individuals.”271
(3)(Former Officials)
I. Whoever
II. A. assaults
B. kidnaps,
C. murders,
D. attempts to assault, kidnap, or murder, or
E. conspires to assault, kidnap, or murder, or
III. A. a former federal judge,
B. a former Member of Congress,
C. the former President and any other former federal officer or employee, or
267 18 U.S.C. 115(a)(1)(B), (b)(4).
268 United States v. Berki, 936 F.2d 529, 532-34 (11th Cir. 1991).
269 United States v. Veach, 455 F.3d 628, 632-34 (6th Cir. 2006).
270 United States v. Saunders, 166 F.3d 907, 913 n.6 (7th Cir. 1999)(“Those cases holding
that the test should be an objective speaker-based one include United States v. Schiefen, 139
F.3d 638, 639 (8th Cir. 1998) . . . United States v. Fulmer, 108 F.3d 1486, 1491-92 (1st Cir.
1997) . . . United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990) . . .and
United States v. Welch, 745 F.2d 614, 619 (10th Cir. 1984). . . Those cases treating the
objective test as recipient-based include United States v. Malik, 16 F.3d 345, 48 (2d Cir.
1994); and United States v. Maisoner, 484 F.2d 1356, 1358 (4th Cir. 1973) ”).
271 United States v. Stewart, 403 F.3d 1007, 1016-19 (9th Cir. 2005), quoting, Virginia v.
Black
, 538 U.S. 343, 349-50 (2003).

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D. a member of the immediate family of such former judge, Member or individual
IV. on account of the performance of their former official duties
shall be punished as provided in subsection (b) as described above.272
Violence and Threats Against Federal Officials on Account
of the Performance of Their Duties.
Section 1114 of title 18 of the United States Codes outlaws murder,
manslaughter, and attempted murder and manslaughter when committed against
federal officers and employees as well as those assisting them during or on account
of the performance of their duties.273 The section’s coverage extends to government
witnesses.274 Other provisions outlaw kidnaping or assault committed against federal
officers and employees during or account of the performance of their duties, but their
coverage of those assisting them is less clear.275
Beyond these general prohibitions, federal law proscribes the murder, kidnaping,
or assault of Members of Congress, Supreme Court Justices, or the Cabinet
Secretaries;276 and a number of statutes outlaw assaults on federal officers and
272 18 U.S.C. 115(a)(2).
273 18 U.S.C. 1114 (“Whoever kills or attempts to kill any officer or employee of the United
States or of any agency in any branch of the United States Government (including any
member of the uniformed services) while such officer or employee is engaged in or on
account of the performance of official duties, or any person assisting such an officer or
employee in the performance of such duties or on account of that assistance, shall be
punished – (1) in the case of murder, as provided under Section 1111; (2) in the case of
manslaughter, as provided under Section 1112; or (3) in the case of attempted murder or
manslaughter, as provided in Section 1113”).
274 See, United States v. Caldwell, 433 F.3d 378, 384 (2005), affirming the conviction a
defendant who solicited the murder of a government witness on charges of violating 18
U.S.C. 373 (solicitation of murder), 1114 (attempted murder), 1512(a) (witness tampering),
1513 (witness retaliation), 371 (conspiracy to murder a government witness).
275 18 U.S.C. 1201(a)(emphasis added)(“Whoever unlawfully seizes, confines, inveigles,
decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any
person, except in the case of a minor by the parent thereof, when . . . (5) the person is among
those officers and employees described in Section 1114 of this title and any such act against
the person is done while the person is engaged in, or on account of, the performance of
official duties . . . the sentence under this section for such offense shall include
imprisonment for not less than 20 years”); 111 (emphasis added) (“Whoever– (1) forcibly
assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in
Section 1114 of this title while engaged in or on account of the performance of official
duties; or (2) forcibly assaults or intimidates any person who formerly served as a person
designated in Section 1114 on account of the performance of official duties during such
person's term of service
, shall, where the acts in violation of this section constitute only
simple assault, be fined under this title or imprisoned not more than one year, or both, and
in all other cases, be fined under this title or imprisoned not more than 8 years, or both”).
276 18 U.S.C. 351.

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employees responsible for the enforcement of particular federal statutes and
programs.277
Obstruction of Justice by Bribery
Section 1512(b) outlaws witness tampering by corrupt persuasion. Several other
federal statutes outlaw bribery in one form or another. The main federal bribery
statute is 18 U.S.C. 201 which prohibits bribing federal officials, employees, jurors
and witnesses. Although it makes no mention of bribery, the honest services
component of the mail and wire fraud statutes, 18 U.S.C. 1341, 1343, 1346, in some
circumstances may afford prosecutors of public corruption greater latitude and more
severe penalties than section 201. The Hobbs Act, 18 U.S.C. 1951, condemns public
officials who use their position for extortion. A few other statutes, noted below,
outlaw bribery to obstruct specific governmental activities.
277 E.g., 7 U.S.C.60 (assault designed to influence administration of federal cotton standards
program), 87b (assault designed to influence administration of federal grain standards
program), 473c-1 (assaults on cotton samplers to influence administration of federal cotton
standards program), 511i (assaults on designed to influence administration of federal
tobacco inspection program), 2146 (assault of United States animal transportation
inspectors); 15 U.S.C.1825(a)(2)(C) (assaults on those enforcing the Horse Protection Act));
16 U.S.C.773e (assaults on officials responsible for enforcing the Northern Pacific Halibut
Act), 973c (assaults on officials responsible for enforcing the South Pacific tuna convention
provisions), 1417 (assaults on officials conducting searches or inspections with respect to
the global moratorium on tuna harvesting practices), 1436 (assaults on officials conducting
searches or inspections with respect to the marine sanctuaries), 1857, 1859 (assaults on
officials conducting searches or inspections with respect to the federal fisheries management
and conservation program), 2403, 2408 (assaults on federal officials conducting searches
or inspections on vessels subject to the jurisdiction of the United States with respect
Antarctic conservation), 2435 (assaults on federal officials conducting searches or
inspections on vessels subject to the jurisdiction of the United States in enforcement of the
Antarctic Marine Living Resources Convention), 3637 (assaults on federal officials
conducting searches or inspections on vessels subject to the jurisdiction of the United States
with respect Pacific salmon conservation), 5009 (assaults on federal officials conducting
searches or inspections on vessels subject to the jurisdiction of the United States with
respect North Pacific anadromous stock conservation), 5505 (assaults on federal officials
conducting searches or inspections on vessels subject to the jurisdiction of the United States
with respect high seas fishing compliance), 5606 (assaults on federal officials conducting
searches or inspections on vessels subject to the jurisdiction of the United States with
respect Northwest Atlantic Fisheries Convention compliance); 18 U.S.C.1501 (assault on
a server of federal process), 1502 (assaulting a federal extradition agent); 21 U.S.C.461(c)
(assaulting federal poultry inspectors), 21 U.S.C.675 (assaulting federal meat inspectors),
21 U.S.C.1041(c) (assaulting federal egg inspector); 30 U.S.C.1461 (assaults on officials
conducting searches or inspections with respect to the Deep Seabed Hard Mineral Resources
Act); 42 U.S.C.2000e-13 (assaulting EEOC personnel), 2283 (assaulting federal nuclear
inspectors).

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Bribery of Jurors, Public Officers and Witnesses (18 U.S.C. 201).
Section 201 outlaws offering or soliciting bribes or illegal gratuities in
connection with judicial, congressional and administrative proceedings.278 Bribery
is a quid pro quo offense. In simple terms, bribery under Ҥ201(b)(1) as to the giver,
and §201(b)(2) as to the recipient . . . require[] a showing that something of value
was corruptly given, offered, or promised to a public official (as to the giver) or
corruptly demanded, sought, received, accepted, or agreed to be received or accepted
by a public official (as to the recipient) with intent . . . to influence any official act
(giver) or in return for being influenced in the performance of any official act
(recipient).”279 In the case of witnesses, subsection 201(b)(3) as to the giver and
subsection 201(b)(4) as to the recipient require a showing that something of value
was corruptly offered or sought with the intent to influence or be influenced with
respect to testimony before, or flight from, a federal judicial, congressional
committee, or administrative trial, hearing or proceeding.280
278 The difference between bribes and gratuities under section 201 is that “for bribery there
must be a quid pro quo – a specific intent to give or receive something of value in exchange
for testimony or a vote in the jury room. “An illegal gratuity, on the other hand, may
constitute merely a reward for some” past or future testimony or jury service, United States
v. Sun-Diamond Growers
, 526 U.S. 398, 404-405 (1999). Section 201 outlaws both but
punishes bribery more severely. For addition discussion of Section 1512 see, Twenty-Second
Survey of White Collar Crime: Public Corruption
, 44 AMERICAN CRIMINAL LAW REVIEW
855 (2007).
279 Id. at 404. The Court’s opinion refers to public officials rather than jurors. Section
201defines public officials to include jurors, 18 U.S.C. 201(a)(1). Subsections 201(b)(1),(2)
provide that “Whoever – (1) directly or indirectly, corruptly gives, offers or promises
anything of value to any public official or person who has been selected to be a public
official, or offers or promises any public official or any person who has been selected to be
a public official to give anything of value to any other person or entity, with intent – (A) to
influence any official act; or (B) to influence such public official or person who has been
selected to be a public official to commit or aid in committing, or collude in, or allow, any
fraud, or make opportunity for the commission of any fraud, on the United States; or (C) to
induce such public official or such person who has been selected to be a public official to
do or omit to do any act in violation of the lawful duty of such official or person; (2) being
a public official or person selected to be a public official, directly or indirectly, corruptly
demands, seeks, receives, accepts, or agrees to receive or accept anything of value
personally or for any other person or entity, in return for: (A) being influenced in the
performance of any official act; (B) being influenced to commit or aid in committing, or to
collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the
United States; or (C) being induced to do or omit to do any act in violation of the official
duty of such official or person . . .shall be fined under this title or not more than three times
the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not
more than fifteen years, or both, and may be disqualified from holding any office of honor,
trust, or profit under the United States.”
280 That is, “Whoever . . . (3) directly or indirectly, corruptly gives, offers, or promises
anything of value to any person, or offers or promises such person to give anything of value
to any other person or entity, with intent to influence the testimony under oath or affirmation
of such first-mentioned person as a witness upon a trial, hearing, or other proceeding, before
any court, any committee of either House or both Houses of Congress, or any agency,
commission, or officer authorized by the laws of the United States to hear evidence or take

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The subsections condemn invitations and solicitations to corruption, but the
entreaties need not be successful281 nor does it matter that corruption was
unnecessary.282 The intent required for bribery, and the difference between the
bribery and illegal gratuity offenses, is the intent to deliberately offer or accept
something of value in exchange for the performance or omission of an official act.283
Section 201 defines the public officials covered broadly to cover federal and District
of Columbia officers and employees as well as those acting on their behalf.284 This
includes anyone who “occupies a position of public trust with official federal
responsibilities.”285 Although there is a statutory definition of “official act,”286 it has
testimony, or with intent to influence such person to absent himself therefrom; [or] (4)
directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or
accept anything of value personally or for any other person or entity in return for being
influenced in testimony under oath or affirmation as a witness upon any such trial, hearing,
or other proceeding, or in return for absenting himself therefrom; shall be fined under this
title or not more than three times the monetary equivalent of the thing of value, whichever
is greater, or imprisoned for not more than fifteen years, or both, and may be disqualified
from holding any office of honor, trust, or profit under the United States,” 18 U.S.C.
203(b)(3), (4).
281 United States v. Muhammad, 120 F.3d 688, 693 (7th Cir. 1997), citing, United States v.
Gallo
, 863 F.2d 185, 189 (2d Cir. 1988).
282 United States v. Orenuga, 430 F.3d 1158, 1165-166 (D.C. Cir. 2005)(finding no fault
with a jury instruction which stated, “It is not a defense to the crime of bribery that had there
been no bribe, the public official might have lawfully and properly performed the same
act”); United States v. Quinn, 359 F.3d 666, 675 (4th Cir. 200)(“it does not matter whether
the government official would have to change his or her conduct to satisfy the payor’s
expectations”); United States v. Alfisi, 308 F.3d 144, 150-51(2d Cir. 2002)(rejecting the
defendant’s contention that the money given the public official was to ensure an honest and
accurate inspection).
283 United States v. Sun-Diamond Growers, 526 U.S. 398, 404-405 (1999); United States
v. Quinn
, 359 F.3d 666, 674(4th Cir. 2004); United States v. Leyva, 282 F.3d 623, 626 (9th
Cir. 2002).
284 18 U.S.C. 201(a)(1)(“the term ‘public official’ means Member of Congress, Delegate,
or Resident Commissioner, either before or after such official has qualified, or an officer or
employee or person acting for or on behalf of the United States, or any department, agency
or branch of Government thereof, including the District of Columbia, in any official
function, under or by authority of any such department, agency, or branch of Government,
or a juror”).
285 Dixson v. United States, 465 U.S. 482, 496 (1984)(officials of a private organization,
contracted by the city, to administer a federal program under which the city received funds);
United States v. Baymon, 312 F.3d 725, 728-29 (5th Cir. 2002)(cook at a federal prison);
United States v. Kenney, 185 F.3d 1217, 1222 (11th Cir. 1999)(defense contractor employee
who assisted Air Force to procure material and equipment).
286 18 U.S.C. 201(a)(3)(“the term ‘official act’ means any decision or action on any
question, matter, cause, suit, proceeding or controversy, which may at any time be pending,
or which may by law be brought before any public official, in such official’s official
capacity, or in such official’s place of trust or profit”).

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been a matter of some dispute, perhaps because of its sweeping language.287 The
question becomes particularly difficult when the bribery charge alleges that a bribe
was provided in exchange for some unspecified official act or acts or for some
general course of conduct.288 The application difficulties seem to have been
exemplified by one appellate panel which held that governmental plea bargain
practices fell within the reach of section 201’s prohibitions.289 No such difficulties
seem to attend the provisions of subsection 201(d) which make it clear that
prohibitions do not preclude the payment of witness fees, travel costs or other
reasonable witness expenses.290
287 The judges of the District of Columbia Circuit recently had great difficulty agreeing on
whether a police officer had been rewarded for an “official act,” in violation of section 201’s
illegal gratuity prohibition, when he checked police department databases for motor vehicle
and outstanding arrest warrant information unrelated in any police investigation. Six
members of the court held that the term “official act” does not include everything a public
official is authorized to do and reversed the officer’s conviction, Valdes v. United States,
475 F.3d 1319, 1323-326 (D.C. Cir. 2007). Five members dissented, id. at 1333.
288 United States v. Jennings, 160 F.3d 1006, 1013, 1014 (4th Cir. 1998)(“A good will gift
to an official to foster a favorable business climate, given simply with the generalized hope
or expectation of ultimate benefit on the part of the donor does not constitute a bribe.” But,
“It is not necessary for the government to prove that the payor intended to induce the official
to perform a set number of official acts in return for the payments. . . For example,
payments may be made with the intent to retain the official’s services on an as needed basis,
so that whenever the opportunity presents itself the official will take specific action on the
payor’s behalf”); United States v. Kemp, 500 F.3d 257, 282 (3d Cir. 2007)(emphasis of the
court) (“Moreover, we agree with the government that the District Court’s instruction to the
jury that it could convict upon finding a ‘stream of benefits’ was legally correct. The key
to whether a gift constitutes a bribe is whether the parties intended for the benefit to be made
in exchange for some official action; the government need not prove that each gift was
provided with the intent to prompt a specific official act. See United States v. Jennings, 160
F.3d 1006, 1014 (4th Cir.1998). Rather, ‘[t]he quid pro quo requirement is satisfied so long
as the evidence shows a course of conduct of favors and gifts flowing to a public official in
exchange for
a pattern of official actions favorable to the donor.’ Id. Thus, ‘payments may
be made with the intent to retain the official’s services on an as needed basis, so that
whenever the opportunity presents itself the official will take specific action on the payor’s
behalf.’ Id.; see also United States v. Sawyer, 85 F.3d 713, 730 (1st Cir.1996) (stating that
‘a person with continuing and long-term interests before an official might engage in a
pattern of repeated, intentional gratuity offenses in order to coax ongoing favorable official
action in derogation of the public's right to impartial official services’). While the form and
number of gifts may vary, the gifts still constitute a bribe as long as the essential intent-a
specific intent to give or receive something of value in exchange for an official act-exists”).
289 United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), vac’d for rehearing en banc,
144 F.3d 1361 (10th Cir. 1998). The decision was overturn en banc and its view
uniformly rejected by other federal appellate court United States v. Singleton, 165 F.3d
1297, 1298 (10th Cir. 1998); United States v. Ihnatenko, 482 F.3d 1097, 1099-110 (9th Cir.
2007)(citing cases in the accord from the First, Fourth, Fifth, and Eighth Circuits); United
States v. Souffront
, 338 F.3d 809, 827 (7th Cir. 2003).
290 18 U.S.C. 201(d)(“Paragraphs (3) and (4) of subsection (b) and paragraphs (2) and (3)
of subsection (c)[relating to bribery and receipt of illegal gratuities involving witnesses]
shall not be construed to prohibit the payment or receipt of witness fees provided by law,
or the payment, by the party upon whose behalf a witness is called and receipt by a witness,

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The penalty structure for illegal gratuities under section 201 is typical. Illegal
gratuities, that is, offering or soliciting a gift as a reward for an official act, is
punishable by imprisonment for not more than 2 years and/or a fine of not more than
$250,000.291 The penalty structure for bribery, however, is fairly distinctive:
imprisonment for not more than 15 years; a fine of the greater of three times the
amount of the bribe or $250,000; and disqualification from holding any federal
position of honor or trust thereafter.292
Section 201 offenses are RICO and money laundering predicate offenses.293
Federal law governing principals, accessories after the fact, misprision, conspiracy
and extraterritorial jurisdiction apply with equal force to bribery and illegal gratuities
under section 201.294
Obstruction by Mail or Wire Fraud (18 U.S.C. 1341, 1343).
The mail fraud and wire fraud statutes have been written and constructed with
such sweep that they cover among other things, obstruction of government activities
by corruption. They reach any scheme to obstruct the lawful functioning in the
judicial, legislative or executive branch of government that involves (1) the
deprivation of money, property or honest services, and (2) the use of the mail or wire
communications as an integral part of scheme.295
The elements of the two offenses are similar. Mail fraud is the federal crime of
scheming to defraud and of using the mail to further the scheme, 18 U.S.C. 1341.296
of the reasonable cost of travel and subsistence incurred and the reasonable value of time
lost in attendance at any such trial, hearing, or proceeding, or in the case of expert witnesses,
a reasonable fee for time spent in the preparation of such opinion, and in appearing and
testifying”).
291 18 U.S.C. 201(c).
292 18 U.S.C. 201(b).
293 18 U.S.C. 1961(1), 1956(c)(7)(A).
294 18 U.S.C. 2, 3, 4, 371; United States v. Bowman, 260 U.S. 94, 98 (1922); Ford v. United
States
, 273 U,.S. 593, 623 (1927).
295 For addition discussion of Section 1512 see, Twenty-Second Survey of White Collar
Crime: Mail and Wire Fraud
, 44 AMERICAN CRIMINAL LAW REVIEW 745 (2007).
296 United States v. Robertson, 493 F.3d 1322, 1330 (11th Cir. 2007); United States v. Mann,
493 F.3d 484, 493 (5th Cir. 2007); United States v. Jennings, 487 F.3d 564, 577 (8th Cir.
2007); United States v. Morales-Rodriguez, 467 U.S. 1, 7 (1st Cir. 2006). 18 U.S.C.
1341(“Whoever, having devised or intending to devise any scheme or artifice to defraud,
or for obtaining money or property by means of false or fraudulent pretenses,
representations, or promises, or to sell, dispose of, loan, exchange, alter, give away,
distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin,
obligation, security, or other article, or anything represented to be or intimated or held out
to be such counterfeit or spurious article, for the purpose of executing such scheme or
artifice or attempting so to do, places in any post office or authorized depository for mail
matter, any matter or thing whatever to be sent or delivered by the Postal Service, or
deposits or causes to be deposited any matter or thing whatever to be sent or delivered by

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Wire fraud is the federal crime of scheming to defraud and of using wire
communications to further the scheme, 18 U.S.C. 1343.297 Other than for their
jurisdictional elements, the courts read them the same way.298 Thus, what constitutes
a scheme to defraud is the same in both instances: any act or omission that “wrong[s]
one in his property rights by dishonest methods or schemes and usually signif[ies] the
deprivation of something of value by trick, deceit, chicane or overreaching.”299 Both
crimes require a specific intent to defraud,300 and they are punishable regardless of
whether the scheme succeeds.301 The deception that is part of the scheme, however,
any private or commercial interstate carrier, or takes or receives therefrom, any such matter
or thing, or knowingly causes to be delivered by mail or such carrier according to the
direction thereon, or at the place at which it is directed to be delivered by the person to
whom it is addressed, any such matter or thing, shall be fined under this title or imprisoned
not more than 20 years, or both. If the violation affects a financial institution, such person
shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both”).
297 United States v. Mann, 493 F.3d 484, 493 (5th Cir. 2007)(“Wire fraud is (1) the formation
of a scheme or artifice to defraud, and (2) use of the wires in furtherance of the scheme”);
United States v. Robertson, 493 F.3d 1322, 1331 (11th Cir. 2007); United States v. Allen, 491
F.3d 178, 185 (4th Cir. 2007); United States v. Gale, 468 F.3d 929, 936-37 (6th Cir. 2006).
18 U.S.C. 1343 (“Whoever, having devised or intending to devise any scheme or artifice to
defraud, or for obtaining money or property by means of false or fraudulent pretenses,
representations, or promises, transmits or causes to be transmitted by means of wire, radio,
or television communication in interstate or foreign commerce, any writings, signs, signals,
pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under
this title or imprisoned not more than 20 years, or both. If the violation affects a financial
institution, such person shall be fined not more than $1,000,000 or imprisoned not more than
30 years, or both”).
298 Pasquantino v. United States, 544 U.S. 349, 355 n.2 (2005)(“we have construed identical
language in the wire and mail fraud statutes in pari materia”), citing, Neder v. United States,
527 U.S. 1, 20 (1999) and Carpenter v. United States, 484 U.S. 19, 25 and n.6 (1987); see
also
, United States v. Reifler, 446 F.3d 65, 95 (2d Cir. 2006)(“In interpreting §1343, we look
not only to cases decided under that section but also to cases involving 18 U.S.C. §1341, the
mail fraud statute, as §1341 uses the same relevant language in prohibiting the furtherance
of fraudulent schemes by use of the mails”); United States v Ward, 486 F.3d 1212, 1221
(11th Cir. 2007)(“Aside from the means by which a fraud is effectuated, the elements of mail
fraud, 18 U.S.C. 1341, and wire fraud, 18 U.S.C. 1343, are identical”); United States v.
Sloan
, 492 F.3d 884, 890 (7th Cir. 2007).
299 McNally v. United States, 483 U.S. 350, 358 (1987); United States v. Ratcliff, 488 F.3d
639, 646 (5th Cir. 2007); United States v. Sloan, 492 F.3d 884, 890 (7th Cir. 2007)(“a scheme
to defraud exists when the conduct at issue has demonstrated a departure from the
fundamental honesty, moral uprightness and candid dealings in the general life of the
community”).
300 United States v. Sloan, 492 F.3d 884, 891 (7th Cir. 2007)(“To show an intent to defraud,
we require a willful act by the defendant with the specific intent to deceive or cheat, usually
for the purpose of getting financial gain for one’s self or causing financial loss to another”);
United States v. McAuliffe, 490 F.3d 526, 531 (6th Cir. 2007); United States v. Mann, 493
F.3d 484, 493 (5th Cir. 2007); United States v Ward, 486 F.3d 1212, 1222 (11th Cir. 2007).
301 United States v. Gale, 468 F.3d 929, 937 (6th Cir. 2006); United States v. Schuler, 458
F.3d 1148, 1153 (10th Cir. 2006); United States v. Reifler, 446 F.3d 65, 96 (2d Cir. 2006).

CRS-58
must be material;302 that is, it must have a natural tendency to induce reliance in the
victim to his detriment or the offender’s benefit.303
Both statutes refer to a “scheme or artifice to defraud, or for obtaining money
or property by means of false or fraudulent pretenses. . .” The extent to which that
phrase encompasses intangibles has not always been clear. In spite of a generous
interpretation by many of the lower federal appellate courts that encompassed
frustration of governmental functions in many forms, the Supreme Court in McNally
declared that the mail fraud statute did not proscribe schemes to defraud the public
of the honest and impartial services of its public employees or officials.304
Lest McNally be read to limit the mail and wire fraud statutes exclusively to
tangible money or property, the Court explained in Carpenter, soon thereafter, that
the “property” of which the mail and wire fraud statutes speak includes recognized
intangible property rights. There, it upheld application of the mail fraud statute to a
scheme to deny a newspaper its pre-publication property right to its confidential
information.305 The Court later confirmed that the wire fraud statute could be used
against a smuggling scheme that deprived a governmental entity of its intangible right
to collect tax revenues.306
In the interim, Congress expanded the scope of the mail and wire fraud statutes
with the passage of 18 U.S.C. 1346, which defines the “scheme to defraud” element
in the fraud statutes to include a scheme “to deprive another of the intangible right
of honest services.” Section 1346 extends mail and wire fraud to prohibit the
deprivation of the intangible right to honest services of both public and private
officers and employees. In the private realm, it proscribes bribery, kickbacks and
various forms of self-dealing committed to the detriment of those to whom the
offender owes a fiduciary duty of some kind.307 In the public sector, it condemns
302 Neder v. United States, 527 U.S. 1, 20-6 (1999).
303 Neder v. United States, 527 U.S. at 22 n .5 (“The Restatement instructs that a matter is
material if ‘(a) a reasonable man would attach importance to its existence or nonexistence
in determining his choice of action in the transaction in question; or (b) the maker of the
representation knows or has reason to know that its recipient regards or is likely to regard
the matter as important in determining his choice of action, although a reasonable man
would not so regard it.’ Restatement (Second) of Torts §538 (1977)”)1, 20-6 (1999); United
States v. McAuliffe
, 490 F.3d 526, 531 (6th Cir. 2007)(“Materiality of falsehood is a requisite
element of mail fraud. The misrepresentation must have the purpose of inducing the victim
of the fraud to part with the property or undertake some action that he would not otherwise
do absent the misrepresentation or omission. A misrepresentation is material if it has a
natural tendency to influence or is capable of influencing, the decision of the decision
making body to which it was addressed”); United States v. Fallon, 470 F.3d 542, 546 (3d
Cir. 2006); United States v. Rosby, 454 F.3d 670, 674 (7th Cir. 2006).
304 United States v. McNally, 483 U.S. 350, 361, 355 n.4 (1987).
305 Carpenter v. United States, 484 U.S. 19, 26-7 (1987).
306 Pasquantino v. United States, 544 U.S. 349, 357 (2005).
307 United States v. Brown, 459 F.3d 509, 521 (5th Cir. 2006); United States v. Rybicki, 354
F.3d 124, 139-44 (2d Cir. 2003).

CRS-59
dishonesty in public officers and employees, although the exact scope of that
proscription remains largely undefined. Some courts have said that honest services
fraud in the public sector “typically occurs in either of two situations: (1) bribery,
where a public official was paid for a particular decision or action; or (2) failure to
disclose a conflict of interest resulting in personal gain.”308 The bribery examples
cause little pause; more perplexing are the issues of how broadly the conflict-of-
interest provision may sweep and what atypical situations the honest services fraud
prohibition may also reach.
If bribery cases turn on the search for the quid pro quo, the other honest services
fraud cases begin, and in some cases end, with the quid. Little more seems to be
required than a substantial benefit conferred upon a public official and the inferences
that flow from that fact.309 Although technically the crime is complete when a
scheme to defraud is accompanied by a mailing or interstate wire communication, the
courts usually require that some other breach of law or duty attend the conveyance,
if for no other reason than to confirm fraudulent intent. The circuits apparently do
not agree on the nature of the taint that must attend the official receipt of a benefit,
particularly over whether some breach of ethical or disclosure statutes must also be
involved.310
308 United States v. Kemp, 500 F.3d 257, 279 (3d Cir. 2007); see also, United States v.
Walker
, 490 F.3d 1282, 1297 (11th Cir. 2007)(“Public officials inherently owe a fiduciary
duty to the public to make governmental decision in the public’s best interest. If an official
instead secretly makes his decisions based on his own person interests – as when an official
accepts a bribe or personally benefits from an undisclosed conflict of interest
– the official
has deprived the public of his honest services”)(emphasis added); United States v. Sawyer,
239 F.3d 31, 40 (2001)(“[W]e noted two of the ways that a public official can steal his
honest services from his public employer: (1) the official can be influenced or otherwise
improperly affected in the performance of his official duties; or (2) the official can fail to
disclose a conflict of interest resulting in personal gain”).
309 United States v. Walker, 490 F.3d 1282, 1297 (11th Cir. 2007)(emphasis of the court)(“A
public official’s undisclosed conflict of interest . . . does by itself harm the constituents’
interest in the end for which the official serve[s] – honest government in the public’s best
interest”); United States v. Potter, 463 F.3d 9, 17-8 (1st Cir. 2006)(“Even if the defendants
expected the payments to benefit Harwood, [an influential state legislator,] defendants say
that there was no direct evidence that such payments were for a specific legislative act, such
as a vote by Harwood; the government stipulated that Harwood, presumably because of his
partner’s normal work for Lincoln Park, had recused himself from voting on matters that
might affect the company. The government, say defendants, never proved that they sought
to have Harwood misuse his official power and thereby deprive the state’s citizens of his
honest services. It is common knowledge that powerful legislative leaders are not dependent
on their own votes to make things happen. The honest services that a legislator owes to
citizens fairly include the informal and behind the scenes influence on legislation. There was
adequate evidence, if any was needed beyond the size of the payment, that Bucci and Potter
both believed Harwood to be powerful. And Sawyer II, 239 F.3d at 40 n.8, forecloses any
argument that the government must prove the specific official act targeted by the
defendants”).
310 United States v. Jennings, 487 F.3d 564, 577-78 (8th Cir. 2007)(“Jennings urges us to
adopt the Third Circuit’s approach, and to limit the scope of §1346 by requiring a link
between the mail fraud prosecution of local officials and their violation of state disclosure
laws. See United States v. Panarella, 277 F.3d 678, 692-93 (3d Cir. 2002)(holding that ‘state

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While Section 1346 protects governmental entities from the deprivation of the
honest services of its officers and employees, it does not protect government entities
from the deprivation of other nonproperty benefits. For example, it does not protect
them from outside fraud that obstructs the lawful administration of their licensing
regimes311 or taints their elections312 – as long as the governmental entities are not
law offers a better limiting principle for purposes of determining when an official’s failure
to disclose a conflict of interest amounts to honest services fraud’); see also United States
v. Murphy
, 323 F.3d 102, 104 (3d Cir. 2003)(stating that, in addition to a violation of a state
disclosure statute, there must also be a fiduciary relationship in order to prosecute local
public officials for honest services mail fraud). In contrast, the government encourages us
to adopt the First Circuit’s test, which the district court seemed to follow in crafting
Jenning’s jury instructions. The First Circuit has taken a broader approach than the Third
Circuit. According to the First Circuit, the duty to disclose a potential conflict can come not
only from specific state disclosure laws, but also from the legislator’s general fiduciary duty
to the public. United States v. Woodward, 149 F.3d 46, 62 (1st Cir. 1998). A public official
has an affirmative duty to disclose material information to the public employer”); see also,
United States v. Thompson, 486 F.3d 877, (7th Cir. 2007)(“Treating an incorrect application
of state procurement law as a misuse of office and a raise as a private gain would land us
back in the soup – once again, simple violations of administrative law would become crimes.
Nothing in the language of §1341or §1346 suggests that Congress has created such an
equation, which would imply that every time a court sets aside a decision under the
Administrative Procures Act, a crime has occurred if anyone involved in the administrative
decision received a good performance review that led to a step increase under the General
Schedule of compensation”); cf., United States v. Brown, 459 F.3d 509, 521-23 (5th Cir.
2006) (holding that in the private sector, no honest services fraud occurs when an
employee’s fraudulent conduct serves the goals of his employer who rewards him for
reaching those goals).
311 Cleveland v. United States, 531 U.S. 12, 18-20 (2000)(footnote 2 of the opinion in
brackets)(internal quotations and citations omitted)(“McNally reversed the mail fraud
convictions of two individuals charged with participating in a self-dealing patronage scheme
that defrauded Kentucky citizens of the right to have the Commonwealth’s affairs conducted
honestly. At the time McNally was decided federal prosecutors had been using §1341 to
attack various forms of corruption that deprived victims of intangible rights unrelated to
money or property. [E.g., United States v. Clapps, 732 F.2d 1148, 1153 (CA3
1984)(electoral body’s right to fair elections); United States v. Bronston, 658 F.2d 920, 927
(CA2 1981)(client’s right to attorney’s loyalty); United States v. Bohonous, 628 F.2d 1167,
1172 (CA9 1980)(right to honest services of an agent or employee); United States v. Isaacs,
493 F.2d 1124, 1150 (CA7 1974)(right to honest services of public officials).] Reviewing
the history of §1341, we concluded that the original impetus behind the mail fraud statute
was to protect the people from schemes to deprive them of their money or property. . . .
Soon after McNally, in Carpenter v. United States, we again stated that §1341 protects
property rights only. . . . The following year, Congress amended the law specifically to cover
one of the ‘intangible rights’ that lower courts had protected under §1341 prior to McNally:
the intangible right to honest services. Significantly, Congress covered only the intangible
right to honest services even though federal courts, relying on McNally , had dismissed, for
want of monetary loss to any victim, prosecutions for diverse forms of public corruption
including licensing fraud.”
312 United States v. Turner, 465 F.3d 667, 674 (6th Cir. 2006)(Section “1346 did not revive
those cases involving prosecutions under the mail fraud statute for deprivations of the
intangible right of honest elections”); United States v. Ratcliff, 488 F.3d 639, 644-46 (5th Cir.
2007).

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defrauded of any money or property.

As for the jurisdictional elements, a defendant causes the use of mail or the
interstate wire communications when the use of the mails or interstate wire
communication is a foreseeable consequence of his action.313 He need not personally
use the mail or transmit an interstate wire communications314 nor intend that they be
used.315 Nor need the mailing or transmission be an essential component of the
scheme to defraud; it is enough if the mailing or wire communication is incidental
to the scheme.316
Prosecutors may favor a mail or wire fraud charge over or in addition to bribery
charge if for no other reason than that under both fraud sections offenders face
imprisonment for not more than 20 years rather than the 15-year maximum found in
section 201.317
Mail fraud and wire fraud are both RICO and money laundering predicate
offenses.318 The legal precipes relating to principals, accessories after the fact,
misprision, and conspiracy apply to mail fraud and wire fraud as well. However, the
courts are unlikely to conclude that either applies to misconduct occurring entirely
overseas, since their jurisdictional elements (United States) mails and interstate and
foreign commerce of the United States) are clearly domestic.
Obstruction by Extortion Under Color of Official Right (18 U.S.C.
1951).
The Hobbs Act outlaws the obstruction of interstate or foreign commerce by
means of robbery or extortion.319 Extortion under the Act comes in two forms:
313 United States v. Ward, 486 F.3d 1212, 1222 (11th Cir. 2007), quoting, Pereira v. United
States
, 347 U.S. 1, 8-9 (1954); United States v. Ratliff-White, 493 F.3d 812, 817, 818 (7th
Cir. 2007); United States v. Amico, 486 F.3d 764, 781 (2d Cir. 2007).
314 United States v. Morales-Rodriguez, 467 F.3d 1, 7 (1st Cir. 2006); United States v.
Ingles
, 445 F.3d 830, 835 (5th Cir. 2006).
315 United States v. Mann, 493 F.3d 484, 493 (5th Cir. 2007).
316 Schmuck v. United States 489 U.S. 705, 701-11 (1989); United States v. Morales-
Rodriguez
, 467 F.3d 1, 7 (1st Cir. 2006); United States v. Reifler, 446 F.3d 65, 95 (2d Cir.
2006); United States v. Lee, 427 F.3d 881, 887 (11th Cir. 2005).
317 18 U.S.C. 1341, 1343. Although not ordinarily relevant in an obstruction of
governmental functions context, mail and wire fraud offenders face imprisonment for not
more than 30 years and a fine of not more $1 million when a financial institution is the
victim of the fraud, id.
318 18 U.S.C. 1961(1), 1956(c)(7)(A).
319 18 U.S.C. 1951 (“(a) Whoever in any way or degree obstructs, delays, or affects
commerce or the movement of any article or commodity in commerce, by robbery or
extortion or attempts or conspires so to do, or commits or threatens physical violence to any
person or property in furtherance of a plan or purpose to do anything in violation of this
section shall be fined under this title or imprisoned not more than twenty years, or both. (b)
As used in this section . . . (2) The term ‘extortion’ means the obtaining of property from

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extortion induced by fear and extortion under color of official right.320 Extortion
under color of official right occurs when a public official receives a payment to
which he is not entitled, knowing it is being provided in exchange for the
performance of an official act.321 Liability may be incurred by public officers and
employees, those in the process of becoming public officers or employees, those who
hold themselves out to be public officers or employees, their coconspirators, or those
who aid and abet public officers or employees in extortion under color or official
right.322 The payment need not have been solicited,323 nor need the official act for
which it is exchanged have been committed.324 The prosecution must establish that
the extortion obstructed, delayed, or affected interstate or foreign commerce, but
proof of a potential impact even one that is not particularly severe may be
sufficient.325
another, with his consent, induced by wrongful use of actual or threatened force, violence,
or fear, or under color of official right. (3) The term ‘commerce’ means commerce within
the District of Columbia, or any Territory or Possession of the United States; all commerce
between any point in a State, Territory, Possession, or the District of Columbia and any
point outside thereof; all commerce between points within the same State through any place
outside such State; and all other commerce over which the United States has jurisdiction.
. . .”).
320 United States v. Cruz-Arroyo, 461 F.3d 69, 73 (1st Cir. 2006); United States v. Kelley,
461 F.3d 817, 826 (6th Cir. 2006).
321 Evans v. United States, 504 U.S. 255, 268 (1992); United States v. D’Amico, 496 F.3d
95, 101 (1st Cir. 2007); United States v. Kelley, 461 F.3d 817, 826 (6th Cir. 2006); United
States v. Urban
, 404 F.3d 754, 768 (3d Cir. 2005); United States v. Cruzado-Laureano, 404
F.3d 470, 481 (1st Cir. 2005).
322 United States v. Kelley, 461 F.3d 817, 827 (6th Cir. 2006); United States v. Rubio, 321
F.3d 517, 521 (5th Cir. 2003); United States v. Hairston, 46 F.3d 361, 366 (4th Cir. 1995);
United States v. Freeman, 6 F.3d 586, 593 (9th Cir. 1993).
323 United States v. Foster, 443 F.3d 978, 984 (8th Cir. 2006)(the color of official right
“element does not require an affirmative act of inducement by the official”); United States
v. Cruz-Arroyo
, 461 F.3d 69, 73-4 (1st Cir. 2006); United States v. Urban, 404 F.3d 754, 768
(3d Cir. 2005).
324 Evans v. United States, 504 U.S. 255, 268 (1992)(“the offense is completed at the time
when the public official receives a payment in return for his agreement to perform specific
official acts; fulfillment of the quid pro quo is not an element of the offense”); United States
v. Foster
, 443 F.3d 978, 984 (8th Cir. 2006); United States v. Urban, 404 F.3d 754, 768 (3d
Cir. 2005).
325 United States v. D’Amico, 496 F.3d 95, 103 (1st Cir. 2007)(internal quotation marks and
citations omitted) (“to prove a completed extortion, the government had to satisfy the Hobbs
Act’s jurisdiction element of showing that D’Amico’s conduct obstructed, delayed, or
affected commerce. To meet this requirement, the government had to prove only that there
was a realistic probability that D’Amico’s conduct would affect interstate commerce”);
United States v. Foster, 443 F.3d 978, 984 (8th Cir. 2005)(“it is enough that the conduct had
the potential to impact commerce”); United States v. Urban, 404 F.3d 754, 766 (3d Cir.
2005)(internal quotation marks and citations omitted)(“In any individual case, proof of a de
minimis
effect on interstate commerce is all that is required. And . . . such a de minimis
effect in an individual Hobbs Act case need only be potential”).

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Hobbs Act violations are punishable by imprisonment for not more than 20
years and a fine of not more than $250,000.326 Hobbs Act offenses are RICO and
money laundering predicates.327 The Act has a separate conspiracy component, but
recourse to prosecution of conspiracy under 18 U.S.C. 371 is an alternative.328 An
offender may incur criminal liability under the misprision statute or as a principal or
accessory before the fact to a violation of the Hobbs Act by another.329
Obstruction of Investigations by Bribery (18 U.S.C. 1510(a)).
Before Congress rewrote federal obstruction of justice law in 1982, Section
1510 covered the obstruction of federal criminal investigations by
“misrepresentation, intimidation, or force or threats thereof” as well as by bribery,
18 U.S.C. 1510 (1976 ed.). All that remains of the original proscription is the
prohibition on obstruction by bribery:
Whoever willfully endeavors by means of bribery to obstruct, delay, or
prevent the communication of information relating to a violation of any criminal
statute of the United States by any person to a criminal investigator shall be fined
under this title, or imprisoned not more than five years, or both, 18 U.S.C. 1510.
Prosecutions under subsection 1510(a) have been more infrequent since the
enactment of 1512 in 1982, perhaps because Section 1512 governs the obstruction
of federal criminal investigations not only by corrupt persuasion such as bribery but
also by intimidation, threat, deception, or physical force.330 Moreover, Section 1510
defines the federal investigators within its protection331 more narrowly than the
definition that applies to Section 1512 coverage.332 In addition, Section 1512
outlaws impeding communications relating to a violation of bail, parole, probation
or supervised release conditions, which Section 1510 does not. Like Section 1512
326 18 U.S.C. 1951(a)
327 18 U.S.C. 1961(1), 1956(c)(7)(A).
328 E.g., United States v. Hatcher, 323 F.3d 666, 669 (8th Cir. 2003); Louisiana v. Guidry,
489 F.3d 692, 695 (5th Cir. 2007)(Guidry successfully negotiated a plea agreement under
which he pleaded guilty in federal court to one count of conspiracy to commit extortion in
violation of 18 U.S.C. §§371 and 1951. . .”).
329 18 U.S.C. 4, 2, 3.
330 18 U.S.C. 1512(b)(3), (a)(1)(C), (a)(2)(C).
331 “As used in this section, the term ‘criminal investigator’ means any individual duly
authorized by a department, agency, or armed force of the United States to conduct or
engage in investigations of or prosecutions for violations of the criminal laws of the United
States,” 18 U.S.C. 1510(c).
332 “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).

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offenses, however, Section 1510 offenses are RICO and money laundering predicate
offenses.333
Obstruction of Justice by Destruction of Evidence
Other than subsection 1512(c), there are three federal statutes which expressly
outlaw the destruction of evidence in order to obstruct justice: 18 U.S.C. 1519
prohibits destruction of evidence in connection with federal investigation or
bankruptcy proceedings, 18 U.S.C. 1520 prohibits destruction of corporate audit
records, and 18 U.S.C. 2232(a) prohibits the destruction of property to prevent the
government from searching or seizing it.
None of the three are RICO or money laundering predicate offenses.334 There
are no explicit statements of extraterritorial jurisdiction for any of them, but the
courts are likely to conclude that overseas violation of their provisions are subject to
prosecution in this country. None of them feature an individual conspiracy
component, but all of them are subject to general federal law governing conspiracy,
principals, accessories after the fact, and misprision.335
Obstruction of Investigations by Destruction of Evidence
(18 U.S.C. 1519).
Where subsection 1512(c) condemns obstruction of federal proceedings by
destruction of evidence, Section 1519 outlaws obstruction of federal investigations
or bankruptcy proceedings by such means. Section 1519’s language suggests that it
reaches only executive branch investigations and does not extend to Congressional
investigations or judicial investigations such as those conducted by a federal grand
jury. It declares:
Whoever knowingly alters, destroys, mutilates, conceals, covers up,
falsifies, or makes a false entry in any record, document, or tangible object with
the intent to impede, obstruct, or influence the investigation or proper
administration of any matter within the jurisdiction of any department or agency
of the United States or any case filed under title 11, or in relation to or
contemplation of any such matter or case, shall be fined under this title,
imprisoned not more than 20 years, or both.
Although its “relation to or contemplation of” clause may admit to more than one
construction, the section’s elements might be displayed as follows:
I. Whoever
II. knowingly
III. A. alters,
B. destroys,
C. mutilates,
333 18 U.S.C. 1961(1), 1956(c)(7)(A).
334 18 U.S.C. 1961(1), 1956(c)(7).
335 18 U.S.C. 371, 2, 3, 4.

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D. conceals,
E. covers up,
F. falsifies, or
G. makes a false entry in
IV. any
A. record,
B. document, or
C. tangible item
V. with the intent to
A. impede,
B. obstruct, or
C. influence
VI. A. the investigation
1. of any matter within the jurisdiction of any department or agency
of the United States, or
2. of any case filed under title 11 (relating to bankruptcy), or
B. the proper administration
1. of any matter within the jurisdiction of any department or agency
of the United States, or
2. of any case filed under title 11 (relating to bankruptcy), or
C. 1.a. in relation to or
b. in contemplation of
2. any such
a. matter or
b. case
shall be fined under this title, imprisoned not more than 20 years, or both.336
This parsing of the section presumes that obstructions in relation to or in
contemplation of yet pending investigations or cases are only covered if they involve
an intent to impede, obstruct, or influence an anticipated investigation or case.
Grammatical consistency, however, may argue for a construction that reads specific
intent out of the “relation or contemplation” clause offenses, i.e., “Whoever
knowingly alters . . any record . . . in relation to or contemplation of any such matter
or case, shall be fined under this title, imprisoned not more than 20 years, or both.”337
Moreover, by proscribing obstructions either in relation to or in contemplation of
subsequent investigations or cases, the section might be said to prohibit both
destruction with the intent to obstruct (an offense in contemplation of) and
destruction simply having a tendency to obstruct (an offense relating to).
The legislative history of Section 1519 evidences a strong inclination to “close
the loopholes” in federal obstruction law, but is not quite so clear on the issue of
whether the offense would have an element of specific intent under all
circumstances.338 In fact, some Members expressed concern over how the new
336 18 U.S.C. 1519.
337 The somewhat awkward alternative reading states, “Whoever knowingly alters . . . any
record . . . with the intent to impede, obstruct, or influence . . . in relation to or
contemplation of any such matter or case, shall be fined under this title, imprisoned not more
than 20 years, or both.”
338 “Section 1519 is meant to apply broadly to any acts to destroy or fabricate physical
evidence so long as they are done with the intent to obstruct, impede or influence the

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section might be construed in this regard.339

Section 1519 was passed with an eye to the prosecution of the Arthur Andersen
accounting firm,340 yet without the benefit the Supreme Court’s later decision in the
case.341 Those circumstances might be claimed by proponents on either side of the
issue. On one hand, an effort to sweep away the legal technicalities that bedeviled
prosecutors in the case may be cited in support of the view that Congress intended
to eliminate the specific intent requirement in a Section 1519 prosecution under the
investigation or proper administration of any matter, and such matter is within the
jurisdiction of an agency of the United States, or such acts [are] done either in relation to
or in contemplation of such a matter or investigation. This statute is specifically meant not
to include any technical requirements, which some courts have read into other obstruction
of justice statutes, to tie the obstructive conduct to a pending or imminent proceeding or
matter. It is also sufficient that the act is done ‘in contemplation’ of or in relation to a
matter or investigation. It is also meant to do away with the distinctions, which some courts
have read into obstructions statute, between court proceedings, investigations, regulatory
or administrative proceedings (whether formal or not) and less formal government inquiries,
regardless of their title. Destroying or falsifying documents to obstruct any of these types
of matters or investigations, which in fact are proved to be within the jurisdiction of any
federal agency are covered by this statute. See 18 U.S.C. 1001. Questions of criminal intent
are, as in all cases, appropriately decided by a jury on a case-by-case basis
. It also extends
to acts done in contemplation of such federal matters, so that the time of the act in relation
to the beginning of the matter or investigation is also not a bar to prosecution. The intent
of the provision is simple; people should not be destroying, altering, or falsifying documents
to obstruct any government function. Finally, this section could also be used to prosecute
a person who actually destroys the records himself in addition to one who persuades another
to do so, ending yet another technical distinction which burdens successful prosecution of
wrongdoers. See 18 U.S.C. 1512(b),” S.Rept. 107-146, at 14-5 (2002)(emphasis added;
citations to sections 1001 and 1512(b) appear in footnotes 15 and 16 respectively in the
report).
339 “We have voiced our concern that Section 1519, and in particular the phrase ‘or proper
administration of any matter within the jurisdiction of any department or agency of the
United States’ could be interpreted more broadly than we intend. In our view, Section 1519
should be used to prosecute only those individuals who destroy evidence with the specific
intent to impede or obstruct a proceeding, or bankruptcy case. It should not cover the
destruction of documents in the ordinary course of business, even where the individual may
have reason to believe that the documents may tangentially relate to some future matter
within the conceivable jurisdiction of an arm of the federal bureaucracy,” Id. at 27
(additional views of Senators Hatch, Thurmond, Grassley, Kyl, DeWine, Sessions,
Brownback, and McConnell).
340 Id. at 7 (“Indeed, even in the current Andersen case, prosecutors have been forced to use
the witness tampering statute, 18 U.S.C. 1512, and to proceed under the legal fiction that the
defendants are being prosecuted for telling other people to shred documents, not simply for
destroying evidence themselves. Although prosecutors have been able to bring charges thus
far in the case, in a case with a single person doing the shredding, this legal hurdle might
present an insurmountable bar to a successful prosecution. When a person destroys
evidence with the intent of obstructing any type of investigation, and the matter is within the
jurisdiction of a federal agency, overly technical legal distinctions should neither hinder nor
prevent prosecution and punishment”).
341 Arthur Andersen LLP v. United States, 544 U.S. 696 (2005).

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“in relation to” clause. On the other hand, the Supreme Court’s decision may be
offered as evidence of the courts’ reluctance to read specific intent requirements out
of an obstruction of justice offense in the absence of a clear Congressional intention
to the contrary or to avoid the natural, if ungrammatical, reading of an obstruction
statute.342
In any event, it seems clear that the conduct which Section 1519 proscribes is
not limited to conduct that impedes a pending investigation; the obstructed official
consideration need be neither pending (“in contemplation of”) nor take the form of
an investigation (investigation . . . or proper administration of any matter”).343
The question of whether Section 1519 applies to Congressional and grand jury
investigations might also be subject to some dispute. At one time, the general federal
false statement statute forbid false statements in “any matter within the jurisdiction
of any department or agency of the United States,” 18 U.S.C. 1001 (1994 ed.).
There, the phrase “any department or agency of the United States” referred only
executive branch entities, the Supreme Court said; it did not refer to judicial entities
nor by implication to Congressional entities.344 Congress then amended Section 1001
to cover false statements “in any matter within the jurisdiction of the executive,
legislative, or judicial branches of the Government of the United States,” a turn of
phrase Congress elected not to use in Section 1519. Nevertheless, the only appellate
panel to consider the issue in a reported decision seems to have concluded that
Section 1519 applies to the destruction of email files in order to avoid their
342 In Arthur Andersen, the Court held that prosecution under subsection 1512(b)(2)
required a showing that the defendant acted conscious of its wrongdoing and in connection
to some anticipated future official proceeding, 544 U.S. at 703-708. Proponents of this
position may also cite the case to overcome the argument of a more grammatically faithful
reading of Section 1519, see 544 U.S. at 704-705 (internal citations omitted)(“Section
1512(b) punishes not just ‘corruptly persuad[ing] another, but knowingly. . . corruptly
persuad[ing] another. (Emphasis added). The government suggests that ‘knowingly’ does
not modify ‘corruptly persuades,’ but that it is not how the statute most naturally reads. It
provides the mens rea – ‘knowingly’ – and then a list of acts – ‘uses intimidation or physical
force, threatens, or corruptly persuades.’ We have recognized with regard to similar
statutory language that the mens rea at least applies to the acts that immediately follow, if
not to other elements down the statutory chain. The government suggests that it is
‘questionable whether Congress would employ such an inelegant formulation as ‘knowingly.
. . corruptly persuades.’ Long experience has not taught us to share the government’s doubts
on this score, and we must simply interpret the statute as written ”).
343 See e.g., United States v. Jho, 465 F.Supp. 2d 618, 636 (E.D. Tex. 2006)(“Accordingly,
the Court concludes that imposing a requirement that the matter develop into a formal
investigation ignores the plain meaning of the statute and the legislative history. All that is
required is proof that Jho knowing made false entries in a document (the Oil Record Book)
with the intent to impede, obstruct, or influence the proper administration of any matter
within the jurisdiction of the United States Coast Guard”).
344 Hubbard v. United States, 514 U.S. 695, 715 (1995), overruling, United States v.
Bramblett
, 348 U.S. 503 (1955). The Court in Bramblett had held that the word
“department” as used in Section 1001 “was meant to describe the executive, legislative and
judicial branches of the government,” 348 U.S. at 509.

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presentation to a federal grand jury, an entity clearly not part of the executive
branch.345
Destruction of Property to Prevent Seizure (18 U.S.C. 2232(a)).
Section 2232(a) mentions neither proceedings or investigations; it simply
outlaws destruction of property in order to prevent the government from seizing it.
The offense has three elements: (1) a person “authorized to search for or seize certain
property;” (2) “the accused knowingly destroys or removes or attempts to destroy or
remove the property subject to the authorized search or seizure;” and (3) “the
destruction or removal of the property [is] for the purpose of preventing its
seizure.”346 Prosecution is apparently limited to those instances where the property
is subject to seizure either with, or because of exigent or other circumstances, without
a warrant at the time of its removal, destruction or attempted destruction or
removal.347 Offenders face the prospect of imprisonment for not more than 5 years
and/or a fine of not more than $250,000.348
Destruction of Corporate Audit Records (18 U.S.C. 1520).
The Sarbanes-Oxley Act augments Section 1519 with a very explicit prohibition
on the destruction of corporate audit records in Section 1520.349 Section 1520
345 In re Grand Jury Investigation, 445 F.3d 266, 275-76 & n.3 (3d Cir. 2006). The case
involved the application of the crime fraud exception to the attorney-client privilege and the
court concluded, “we agree that there was sufficient evidence to support the District Court’s
finding that Jane Doe could be found to have engaged in the ongoing crime of obstruction
of justice. [The government apparently relies on 18 U.S.C. 1519, which provides. . . There
are other provisions arguably applicable and we do not limit our analysis to Section 1519],”
id. (pertinent portions of footnote 3 of the court’s opinion in brackets).
346 United States v. Plavcak, 411 F.3d 655, 660 (6th Cir. 2005).
347 Id. at 661; cf., United States v. Lessner, 498 F.3d 185, 198 (3d Cir. 2007).
348 18 U.S.C. 2232(a), 3571.
349 “(a)(1) Any accountant who conducts an audit of an issuer of securities to which Section
10A(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78j-1(a)) applies, shall maintain
all audit or review workpapers for a period of 5 years from the end of the fiscal period in
which the audit or review was concluded. (2) The Securities and Exchange Commission
shall promulgate, within 180 days, after adequate notice and an opportunity for comment,
such rules and regulations, as are reasonably necessary, relating to the retention of relevant
records such as workpapers, documents that form the basis of an audit or review,
memoranda, correspondence, communications, other documents, and records (including
electronic records) which are created, sent, or received in connection with an audit or review
and contain conclusions, opinions, analyses, or financial data relating to such an audit or
review, which is conducted by any accountant who conducts an audit of an issuer of
securities to which Section 10A(a) of the Securities Exchange Act of 1934 (15 U.S.C.
78j-1(a)) applies. The Commission may, from time to time, amend or supplement the rules
and regulations that it is required to promulgate under this section, after adequate notice and
an opportunity for comment, in order to ensure that such rules and regulations adequately
comport with the purposes of this section.
“(b) Whoever knowingly and willfully violates subsection (a)(1), or any rule or
regulation promulgated by the Securities and Exchange Commission under subsection

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requires those who audit the issuers of securities to keep their records and work
papers for 5 years. The penalty for violation of Section 1520 is imprisonment for not
more than 10 years and/or a fine of not more than $250,000.350
Obstruction of Justice by Deception
In addition to the obstruction of justice provisions of 18 U.S.C. 1503 and 1512,
there are four other general statutes that outlaw obstructing the government’s
business by deception. Three involve perjury: 18 U.S.C. 1623 which outlaws false
swearing before federal courts and grand juries; 18 U.S.C. 1621 the older and more
general prohibition that proscribes false swearing in federal official matters (judicial,
legislative, or administrative); and 18 U.S.C. 1622 which condemns subornation, that
is, inducing another to commit perjury. The fourth, 18 U.S.C. 1001, proscribes
material false statements concerning any matter within the jurisdiction of a federal
executive branch agency, and to a somewhat more limited extent within the
jurisdiction of the federal courts or a Congressional entity.
None of the four are RICO predicate offenses or money laundering predicate
offenses.351 The laws relating to aiding and abetting, accessories after the fact,
misprision, and conspiracy,352 however, apply to all four.353 Sections 1621 and 1623
state that their prohibitions apply regardless of whether the perjurious conduct occurs
overseas or within this country.354 Section 1001 has no such explicit declaration, but
has been held to have extraterritorial application nonetheless.355
Perjury in a Judicial Context (18 U.S.C. 1623).
Congress enacted Section 1623 to avoid some of the common technicalities
embodied in the more comprehensive perjury provisions found in subsection 1621356
(a)(2), shall be fined under this title, imprisoned not more than 10 years, or both.
“(c) Nothing in this section shall be deemed to diminish or relieve any person of any
other duty or obligation imposed by Federal or State law or regulation to maintain, or refrain
from destroying, any document,” 18 U.S.C. 1520. Other audit obstruction offenses include
18 U.S.C. 1516 (obstructing a federal audit), 1517 (obstructing a bank examination).
350 18 U.S.C. 1520(b), 3571.
351 18 U.S.C. 1961(1), 1956(c)(7).
352 18 U.S.C. 2, 3, 4, 371.
353 E.g., United States v. Atalig, 502 F.3d 1063, 1065 (9th Cir. 2007)(conspiracy to violate
18 U.S.C. 1001); cf., United States v. Dunne, 324 F.3d 1158, 1162-163 (10th Cir. 2003).
354 18 U.S.C. 1621 (“This section is applicable whether the statement or subscription is
made within or without the United States”); 18 U.S.C. 1623 (“This section is applicable
whether the conduct occurred within or without the United States”).
355 United States v. Walczak, 783 F.2d 852, 854-55 (9th Cir. 1986).
356 Unlike subsection 1621, subsection 1623 permits a conviction in the case of two
mutually inconsistent declarations without requiring proof that one of them is false, 18
U.S.C. 1623(c); it recognizes a limited recantation defense, 18 U.S.C. 1623(d); it dispenses
with the so-called two-witness rule, 18 U.S.C. 1623(e); and it employs a “knowing” mens

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and thus “to facilitate perjury prosecutions and thereby enhance the reliability of
testimony before federal courts and grand juries.”357 Parsed into elements, Section
1623 declares that:
I. Whoever
II. a. under oath or
b. in any
i. declaration,
ii. certificate,
iii. verification, or
iv. statement
under penalty of perjury as permitted under Section 1746 of title 28, United
States Code
III. in any proceeding before or ancillary to
a. any court or
b. grand jury of the United States
IV. knowingly
V. a. makes any false material declaration or
b. makes or uses any other information, including any
i. book,
ii. paper,
iii. document,
iv. record,
v. recording, or
vi. other material,
knowing the same to contain any false material declaration,
shall be fined under this title or imprisoned not more than five years, or both.358
In most cases, the courts abbreviate their description of the elements and state
in one form or another that to prove perjury the government must establish that the
defendant (1) knowingly made a (2) false (3) material declaration (4) under oath (5)
in a proceeding before or ancillary to any court or grand jury of the United States.359
rea standard rather than the more demanding “willfully” standard used in subsection 1621.
357 Dunn v. United States, 442 U.S. 100, 107 (1979), citing, S.REP.NO. 91-617, at 58-9
(1969)(internal citations omitted).
358 18 U.S.C. 1623(a).
359 United States v. Safa, 484 F.3d 818, 821 (6th Cir. 2007)(“To convict an individual of a
violation of 18 U.S.C. 1623, the government must prove beyond a reasonable doubt that the
defendant: (1) knowingly made, (2) a materially false declaration (3) under oath (4) in a
proceeding before or ancillary to any court of the United States”); United States v. Pagan-
Santini
, 451 F.3d 258, 266 (1st Cir. 2006)(“A statement under oath constitutes perjury if it
is false, known to be so and material to the proceeding”); United States v. Clifton, 406 F.3d
1173, 1177 (10th Cir. 2005)(“The government must prove the following elements beyond a
reasonable doubt under §1623: (1) the defendant made a declaration under oath before a
grand jury; (2) such declaration was false; (3) the defendant knew the declaration was false
and (4) the false declaration was material to the grand jury’s inquiry”); United States v.
Hirsch
, 360 F.3d 860, 864-65 (8th Cir. 2004)(the government had to prove the following four
elements beyond a reasonable doubt: (1) Hirsch gave the testimony under oath in his
criminal trial; (2) such testimony was false in whole or in part; (3) at the time he so testified,
he knew his testimony was false; and (4) the false testimony was material”).

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The allegedly perjurious declaration must be presented in a “proceeding before
or ancillary to any court or grand jury of the United States.” An interview in an
attorney’s office in preparation for a judicial hearing cannot be considered such an
ancillary proceeding,360 but the phrase “proceedings ancillary to” court or grand jury
proceedings does cover proceedings to take depositions in connection with civil
litigation,361 as well as a variety of pretrial proceedings in criminal cases,362 including
habeas proceedings,363 bail hearings,364 venue hearings,365 or suppression hearings.366
The Supreme Court’s observation that a statement that is misleading but literally
true cannot support a conviction under Section 1621 because it is not false,367 applies
with equal force to perjury under Section 1623.368 Similarly, perjury cannot be the
product of confusion, mistake, or faulty memory, but must be a statement that the
defendant knows is false,369 although this requirement may be satisfied with evidence
that the defendant was deliberately ignorant or willfully blind to the fact that the
statement was false.370 On the other hand, “[a] question that is truly ambiguous or
which affirmatively misleads the testifier can never provide a basis for a finding of
perjury, as it could never be said that one intended to answer such a question
untruthfully.”371 Yet ambiguity will be of no avail if the defendant understands the
question and answers falsely nevertheless.372
360 Dunn v. United States, 442 U.S. 100, 111-12 (1979).
361 Id.; United States v. Wilkinson, 137 F.3d 214, 225 (4th Cir. 1998); United States v.
Holland
, 22 F.3d 1040, 1047-48 (11th Cir. 1994); United States v. McAfee, 8 F.3d 1010,
1013-14 (5th Cir. 1993).
362 United States v. Farmer, 137 F.3d 1265 (11th Cir. 1998).
363 United States v. Johnson, 325 F.3d 205, 209 (4th Cir. 2003).
364 United States v. Greene, 591 F.2d 471 (8th Cir. 1979).
365 United States v. Durham, 139 F.3d 1325 (10th Cir. 1998).
366 United States v. Renteria, 138 F.3d 1328 (10th Cir. 1998).
367 Bronston v. United States, 409 U.S. 352, 358-59 (1973).
368 United States v. Richardson, 421 F.3d 17, 32-3 (1st Cir. 2005); United States v.
McKenna
, 327 F.3d 830, 840-41 (9th Cir. 2003); United States v. Shotts, 145 F.3d 1289,
1297 (11th Cir. 1998); United States v. Hairston, 46 F.3d 361, 375 (4th Cir. 1996).
369 United States v. Fawley, 137 F.3d 458, 466 (7th Cir. 1998); United States v. Reveron
Martinez
, 836 F.2d 684, 689 (1st Cir. 1988); cf., United States v. Dunnigan, 507 U.S. 87,
94 (1993).
370 United States v. Fawley, 137 F.3d 458, 466-67 (7th Cir. 1998).
371 United States v. Richardson, 421 F.3d 17, 33 (1st Cir. 2005); United States v. DeZarn,
157 F.3d 1042, 1049 (6th Cir. 1998); see also, United States v. Turner, 500 F.3d 685, 689 (8th
Cir. 2007)(“If, however, a question is fundamentally vague or ambiguous, then an answer
to that question cannot sustain a perjury conviction”).
372 United States v. McKenna, 327 F.3d 830, 841 (9th Cir. 2003)(“A question leading to a
statement supporting a perjury conviction is not fundamentally ambiguous where the jury
could conclude beyond a reasonable doubt that the defendant understood the question as did
the government and that so understood, the defendant’s answer was false”); United States
v. Brown
, 459 F.3d 509, 529 (5th Cir. 2006); United States v. Turner, 500 F.3d 685, 690 (8th

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Materiality is perhaps the most nettlesome of perjury’s elements. It is usually
said that a statement is material “if it has a natural tendency to influence, or is
capable of influencing, the decision of the decisionmaking body to whom it is
addressed.”373 This definition is not easily applied when the precise nature of the
underlying inquiry remains somewhat undefined such as in grand jury proceedings
or in depositions at the discovery stage of a civil suit. On the civil side, the lower
federal courts appear divided between the view (1) that a statement in a deposition
is material if a “truthful answer might reasonably be calculated to lead to the
discovery of evidence admissible at the trial of the underlying suit” and (2) that a
statement is material “if the topic of the statement is discoverable and the false
statement itself had a tendency to affect the outcome of the underlying civil suit for
which the deposition was taken.”374
In the case of perjury before the grand jury, rather than articulate a single
standard the courts have described several circumstances under which false testimony
may be considered material.375 In any event, a statement is no less material because
it did not or could not divert the decisionmaker.376
Cir. 2007).
373 United States v. Brown, 459 F.3d 509, 529 (5th Cir. 2006), citing, United States v.
Gaudin
, 515 U.S. 506, 509 (1995), and Kungys v. United States, 485 U.S. 759, 770 (1988);
United States v. McKenna, 327 F.3d 830, 839 (9th Cir. 2003); United States v. Lee, 359 F.3d
412, 417 (6th Cir. 2003); United States v. Durham, 139 F.3d 1325, 1329 (10th Cir. 1998).
374 United States v. Wilkinson, 137 F.3d 214, 225 (4th Cir. 1998), comparing, United States
v. Kross
, 14 F.3d 751, 754 (2d Cir. 1994), and United States v. Holley, 942 F.2d 916, 924
(5th Cir. 1991), with, United States v. Adams, 870 F.2d 1140, 1146-148 (6th Cir. 1989) and
United States v. Clark, 918 F.2d 843, 846 (9th Cir.1990), overruled on other grounds, United
States v. Keys
, 133 F.3d 1282, 1286 (9th Cir,. 1998); see also, United States v. McKenna, 327
F.3d 830, 839-40 (9th Cir. 2003)(acknowledging the division and continuing to adhere to the
view expressed in Clark).
375 E.g., United States v. Brown, 459 F.3d 509, 530 n.18 (5th Cir. 2006)(“The materiality
requirement of §1623 has been satisfied in cases where the false testimony was relevant to
any subsidiary issue or was capable of supplying a link to the main issue under
consideration”); United States v. Silveira, 426 F.3d 514, 518 (1st Cir. 2005)(“A statement
of witness to a grand jury is material if the statement is capable of influencing the grand jury
as to any proper matter pertaining to its inquiry or which might have influenced the grand
jury or impeded its inquiry. To be material, the statement need not directly concern an
element of the crime being investigated, nor need it actually influence the jury”); United
States v. Burke
, 425 F.3d 400, 414 (7th Cir. 2005)(“Even potential interference with a line
of inquiry can establish materiality”); United States v. Blanton, 281 F.3d 771, 775(8th Cir.
2002)(“The statements need not be material to any particular issue, but may be material to
any proper matter of inquiry”); United States v. Plumley, 207 F.3d 1086, 1095-96 (8th Cir.
2000)(“Although it is true that this particular question did not address the ultimate issue. .
. it is not thereby rendered immaterial” citing cases where a statement before the grand jury
was found to be material when a “truthful answer would have raised questions about the role
of others. . . when [the] witness obscures [his] whereabouts or involvement in offense. . .
[and] about peripheral matters [that] can become material when considered in context”).
376 United States v. Silveira, 426 F.3d 514, 518 (1st Cir. 2005); United States v. Lee, 359
F.3d 412, 416 (6th Cir. 2004); United States v. McKenna, 327 F.3d 830, 839 (9th Cir. 2003).

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The courts seem to have had less difficulty dealing with a materiality issue
characterized as the perjury trap doctrine. The doctrine arises where a witness is
called for the sole purpose of eliciting perjurious testimony from him.377 Under such
circumstances it is said the tribunal has no valid purpose to which a perjurious
statement could be considered material. The doctrine poses no bar to prosecution in
most cases, however, since the government is usually able to identify some valid
reason for the grand jury's inquiries.378
Subsection 1623(c) permits a perjury conviction simply on the basis of two
necessarily inconsistent material declarations rather than a showing that one of the
two statements is false.379 Conviction does require a showing, however, that the two
statements were made under oath; it is not enough to show that one was made under
oath and the other was made in the form of an affidavit signed under penalty of
377 Brown v. United States, 245 F.2d 549, 555 (8th Cir. 1957), quoting, United States v.
Icardi
, 140 F.Supp. 383, 384-88 (D.D.C. 1956); but see, United States v. Burke, 425 F.3d
400, 408 (7th Cir. 2005)(“We have not embraced this doctrine, however, and do not see any
reason to adopt it now”)(internal citations omitted).
378 United States v. McKenna, 327 F.3d 830, 837 (9th Cir. 2003)(“Here, the government did
not use its investigatory powers to question McKenna before a grand jury. Rather, it merely
questioned McKenna in its role as a defendant during the pendency of a civil action in which
she was the plaintiff. The perjury trap doctrine is inapplicable to McKenna’s case for this
reason”); United States v. Regan, 103 F.3d 1073, 1079 (2d Cir. 1997)(“[w]e have noted that
the existence of a legitimate basis for an investigation and for particular questions answered
falsely precludes any application of the perjury trap doctrine”); United States v. Chen, 933
F.2d 793, 797 (9th Cir. 1991)(“[w]hen testimony is elicited before a grand jury that is
attempting to obtain useful information in furtherance of its investigation or conducting a
legitimate investigation into crimes which had in fact taken place within its jurisdiction, the
perjury trap doctrine is, by definition, inapplicable”), quoting, United States v. Devitt, 499
F.2d 135, 140 (7th Cir. 1974) and United States v. Chevoor, 526 F.2d 178, 185 (1st Cir.
1975).
379 18 U.S.C. 1623(c)(“An indictment or information for violation of this section alleging
that, in any proceedings before or ancillary to any court or grand jury of the United States,
the defendant under oath has knowingly made two or more declarations, which are
inconsistent to the degree that one of them is necessarily false, need not specify which
declaration is false if – (1) each declaration was material to the point in question, and (2)
each declaration was made within the period of the statute of limitations for the offense
charged under this section. In any prosecution under this section, the falsity of a declaration
set forth in the indictment or information shall be established sufficient for conviction by
proof that the defendant while under oath made irreconcilably contradictory declarations
material to the point in question in any proceeding before or ancillary to any court or grand
jury. It shall be a defense to an indictment or information made pursuant to the first
sentence of this subsection that the defendant at the time he made each declaration believed
the declaration was true”); United States v. Dunn, 442 U.S.100, 108 (1979)(“By relieving
the government of the burden of proving which of two or more inconsistent declarations was
false, see §1623(c), Congress sought to afford greater assurance that testimony obtained in
grand jury and court proceedings will aid the cause of truth”).

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perjury.380 Moreover, the statements must be so inherently contradictory that one of
them of necessity must be false.381
Some years ago, the Supreme Court declined to reverse an earlier ruling that
“[t]he general rule in prosecutions for perjury is that the uncorroborated oath of one
witness is not enough to establish the falsity of the testimony of the accused set forth
in the indictment.”382 Subsection 1623(e) permits a perjury conviction without
compliance with this traditional two witness rule.383 Since the two witness rule rests
on the common law rather than on a constitutional foundation, it may can be
abrogated by statute without offending constitutional principles.384
Most of the other subsections of Section 1623 are designed to overcome
obstacles which the common law placed in the path of a successful perjury
prosecution. Subsection 1623(d), in contrast, offers a defense unrecognized at
common law. The defense is stated in fairly straightforward terms, “[w]here in the
same continuous court or grand jury proceeding in which a declaration is made, the
person making the declaration admits such declaration to be false, such admission
shall bar prosecution under this section if, at the time the admission is made, the
declaration has not substantially affected the proceeding, or it has not become
manifest that such falsity has been or will be exposed,” 18 U.S.C. 1623(d). Although
phrased in different terms, the courts seem to agree that repudiation of the false
testimony must be specific and thorough.385 There is some disagreement whether a
recanting defendant must be denied the defense if both the substantial impact and
manifest exposure conditions have been met or if the defense must be denied if either
380 United States v. Jaramillo, 69 F.3d 388 (9th Cir. 1995).
381 United States v. McAfee, 8 F.3d 1010, 1014-15 (5th Cir. 1993)(“The Government must
show that the statements are so irreconcilable that one of the statements is ‘necessarily
false.’ We find the Fourth Circuit's explanation of §1623(c) instructive and adopt the
standard set forth in United States v. Flowers, 813 F.2d 1320 (4th Cir. 1987). In Flowers,
the court concluded that subsection 1623(c) ‘requires a variance in testimony that extends
beyond mere vagueness, uncertainty, or equivocality. Even though two declarations may
differ from one another, the §1623(c) standard is not met unless taking them into context,
they are so different that if one is true there is no way the other can also be true.’” Id. at
1324; see also United States v. Porter, 994 F.2d 470 (8th Cir. 1993)).
382 Weiler v. United States, 323 U.S. 606, 607 (1945).
383 18 U.S.C. 1623(e)(“Proof beyond a reasonable doubt under this section is sufficient for
conviction. It shall not be necessary that such proof be made by any particular number of
witnesses or by documentary or other type of evidence”). See also United States v. Kemp,
500 F.3d 257, 294 (3d Cir. 2007).
384 United States v. Ruggiero, 472 F.2d 599, 606 (2d Cir. 1973); United States v. Diggs, 560
F.2d 266, 269 (7th Cir. 1977)(citing cases in accord).
385 United States v. Tobias, 863 F.2d 685, 689 (9th Cir. 1988)(unequivocal repudiation);
United States v. Scivola, 766 F.2d 37, 45 (1st Cir. 1985)(implicit recantation is insufficient);
United States v. Goguen, 723 F.2d 1012, 1017 (1st Cir. 1983) (outright retraction and
repudiation).

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condition exists. Most courts have concluded that the presence of either condition
dooms the defense.386
Early construction required that a defendant establish both that his false
statement had not substantially affected the proceeding before his recantation and
that it had not become manifest that his false statement would be exposed.387 One
more recent appellate case, however, decided that the defense should be available to
a witness who could show a want of either an intervening adverse impact or of likely
exposure of his false statement.388 Even without the operation of subsection 1623(d),
relatively contemporaneous corrections of earlier statements may negate any
inference that the witness is knowingly presenting false testimony and thus preclude
conviction for perjury.389
Perjury Generally (18 U.S.C. 1621).
When Congress passed Section 1623, it did not repeal Section 1621 either
explicitly or by implication; where its proscriptions overlap with those of Section
1623, the government is free to choose under which it will prosecute.390 Since
Section 1623 frees prosecutors from many of the common law requirements of
Section 1621, it is perhaps not surprising that they ordinarily elect to prosecute under
subsection 1623. Section 1623 does outlaw perjury under a wider range of
circumstances than Section 1621; it prohibits perjury before official proceedings
generally – both judicial and nonjudicial. Separated into its elements, the section
provides that:
(1)
I. Whoever having taken an oath
II. before a competent tribunal, officer, or person,
III. in any case in which a law of the United States authorizes an oath to be
administered,
IV. a. that he will
i. testify,
ii. declare,
iii. depose, or
iv, certify truly, or
386 United States v. Sherman, 150 F.3d 306, 313-18 (3d Cir. 1998); United States v.
Fornaro
, 894 F.2d 508, 510-11 (2d Cir. 1990); United States v. Scivola, 766 F.2d 37, 45 (1st
Cir. 1985); United States v. Denison, 663 F.2d 611, 615 (5th Cir. 1981); United States v.
Moore
, 613 F.2d 1029, 1043 (D.C.Cir. 1979); contra, United States v. Smith, 35 F.3d 344,
345-47 (8th Cir. 1994).
387 United States v. Moore, 613 F.2d 1029, 1043-44 (D.C. Cir. 1979); United States v.
Srimgeour
, 636 F.2d 1019, 1021 (5th Cir. 1980); United States v. Scivola, 766 F.2d 37, 45
(1st Cir. 1985); United States v. Formaro, 894 F.2d 508, 510-11 (2d Cir. 1990).
388 United States v. Smith, 35 F.3d 344, 345 (8th Cir. 1994).
389 United States v. McAfee, 8 F.3d 1010, 1014 (5th Cir. 1993).
390 United States v. Sherman, 150 F.3d 306, 312-13 (3d Cir. 1998); United States v.
Ruggiero
, 472 F.2d 599, 606 (2d Cir. 1973).

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b. that any written
i. testimony,
ii. declaration,
iii. deposition, or
iv. certificate
by him subscribed, is true,
V. willfully and contrary to such oath
VI. a. states or
b. subscribes
any material matter which he does not believe to be true; or
(2)
I. Whoever in any
a. declaration,
b. certificate,
c. verification, or
d. statement
under penalty of perjury as permitted under Section 1746 of title 28, United States
Code, 391
II. willfully subscribes as true
III. any material matter
IV. which he does not believe to be true
is guilty of perjury and shall, except as otherwise expressly provided by law, be fined
under this title or imprisoned not more than five years, or both. This section is
applicable whether the statement or subscription is made within or without the United
States.392
The courts generally favor an abbreviated encapsulation such as the one found
in United States v. Dunnigan: “A witness testifying under oath or affirmation violates
this section if she gives false testimony concerning a material matter with the willful
391 “Wherever, under any law of the United States or under any rule, regulation, order, or
requirement made pursuant to law, any matter is required or permitted to be supported,
evidenced, established, or proved by the sworn declaration, verification, certificate,
statement, oath, or affidavit, in writing of the person making the same (other than a
deposition, or an oath of office, or an oath required to be taken before a specified official
other than a notary public), such matter may, with like force and effect, be supported,
evidenced, established, or proved by the unsworn declaration, certificate, verification, or
statement, in writing of such person which is subscribed by him, as true under penalty of
perjury, and dated, in substantially the following form:
“(1) If executed without the United States: ‘I declare (or certify, verify, or state) under
penalty of perjury under the laws of the United States of America that the foregoing is true and
correct. Executed on (date).
(Signature)’.
“(2) If executed within the United States, its territories, possessions, or commonwealths:
‘I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and
correct. Executed on (date).
(Signature)’.”
392 18 U.S.C. 1621.

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intent to provide false testimony, rather than as a result of confusion, mistake, or
faulty memory.”393
Perjury is only that testimony which is false. Thus, testimony that is literally
true, even if deceptively so, cannot be considered perjury for purposes of a
prosecution under Section 1621.394 Moreover, Section 1621 requires compliance
with “the two witness rule” to establish that a statement is false. Under the rule, “the
uncorroborated oath of one witness is not sufficient to establish the falsity of the
testimony of the accused as set forth in the indictment as perjury.”395 Thus,
conviction under Section 1621 requires that the government “establish the falsity of
the statement alleged to have been made by the defendant under oath, by the
testimony of two independent witnesses or one witness and corroborating
circumstances.”396 If the rule is to be satisfied with corroborative evidence, the
evidence must be trustworthy and support the account of the single witness upon
which the perjury prosecution is based.397
The test for materiality under Section 1621 is whether the false statement “has
a natural tendency to influence or [is] capable of influencing the decision-making
body to which it [is] addressed.”398
Conviction under Section 1621 requires not only that the defendant knew his
statement was false (“which he does not believe to be true”), but that his false
393 United States v. Dunnigan, 507 U.S. 87, 94 (1993); United States v. McKenna, 327 F.3d
830, 838 (9th Cir. 2003); United States v. Singh, 291 F.3d 756, 763 n.4 (11th Cir. 2002);
United States v. Nash, 175 F.3d 429, 438 (6th Cir. 1999); see also, United States v. Dumeisi,
424 F.3d 566, 582 (7th Cir. 2005)(“the elements of perjury are (1) testimony under oath
before a competent tribunal, (2) in a case in which United States law authorizes the
administration of an oath, (3) false testimony, (4) concerning a material matter, (5) with the
willful intent to provide false testimony”).
394 Bronston v. United States, 409 U.S. 352, 362 (1972) (“It may well be that petitioner’s
answers were not guileless but were shrewdly calculated to evade. Nevertheless . . . any
special problems arising from the literally true but unresponsive answer are to be remedied
through the questioner's acuity and not by a federal perjury prosecution”); see also, United
States v. McKenna
, 327 F.3d 830, 841 (9th Cir. 2003); United States v. Roberts, 308 F.3d
1147, 1152 (11th Cir. 2002); United States v. DeZarn, 157 F.3d 1042, 1047-48 (6th Cir.
1998).
395 Hammer v. United States, 271 U.S. 620, 626 (1926).
396 Weiler v. United States, 323 U.S. 606, 607 (1945); United States v. Stewart, 433 F.3d
273, 315 (2d Cir. 2006); United States v. Chaplin, 25 F.3d 1373, 1377 (7th Cir. 1994).
397 Weiler v. United States, 323 U.S. 606, 610 (1945); United States v. Stewart, 433 F.3d
273, 315 (2d Cir. 2206)(“The rule is satisfied by the direct testimony of a second witness
or by other evidence of independent probative value, circumstantial or direct, which is of
a quality to assure that a guilty verdict is solidly founded. The independent evidence must,
by itself, be inconsistent with the innocence of the defendant. However, the corroborative
evidence need not, it itself, be sufficient, if believed to support a conviction”).
398 United States v. McKenna, 327 F.3d 830, 839 (9th Cir. 2003); United States v. Roberts,
308 F.3d 1147, 1155 (11th Cir. 2002); United States v. Allen, 892 F.2d 66, 67 (10th Cir.
1989); United States v. Mareno Morales, 815 F.2d 725, 747 (1st Cir. 1987).

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statement is “willfully” presented. There is but scant authority on precisely what
“willful” means in this context. The Supreme Court in dicta has indicated that
willful perjury consists of “deliberate material falsification under oath.”399 Other
courts have referred to it as acting with an “intent to deceive”400 or as acting
“intentionally.”401
Although a contemporaneous correction of a false statement may demonstrate
the absence of the necessary willful intent to commit perjury, the crime is completed
when the false statement is presented to the tribunal; without a statute such as that
found in Section 1623, recantation is no defense nor does it bar prosecution.402
Subornation of Perjury (18 U.S.C. 1622).
Section 1622 outlaws procuring or inducing another to commit perjury:
“Whoever procures another to commit any perjury is guilty of subornation of perjury,
and shall be fined under this title or imprisoned for not more than five years, or
both,” 18 U.S.C. 1622. The crime consists of two elements – (1) an act of perjury
committed by another (2) induced or procured by the defendant. Perjury under either
Section 1621 or 1623 will support a conviction for subornation under Section
1622,403 but proof of the commission of an act of perjury is a necessary element of
subornation.404 Although the authorities are exceptionally sparse, it appears that to
suborn one must know that the induced statement is false and that at least to suborn
under Section 1621 one must also knowingly and willfully induce.405 Subornation
is only infrequently prosecuted as such perhaps because of the ease with which it can
now be prosecuted as an obstruction of justice under either 18 U.S.C. 1503 or 1512406
399 United States v. Norris, 300 U.S. 564, 574 (1937)(emphasis added).
400 United States v. Rose, 215 F.2d 617, 622-23 (3d Cir. 1954).
401 United States v. Friedman, 854 F.2d 535, 560 (2d Cir. 1988); United States v. Mounts,
35 F.3d 1208, 1219 (7th Cir. 1994).
402 United States v. Norris, 300 U.S. 564, 574 (1934); United States v. McAfee, 8 F.3d 1010,
1017 (5th Cir. 1993).
403 United States v. Endo, 635 F.2d 321, 322 (4th Cir. 1980).
404 United States v. Hairston, 46 F.3d 361, 376 (4th Cir. 1995)(if the underlying perjury
conviction is reversed for insufficient evidence, the subornation conviction must likewise
be reversed); see also, United States v. Silverman, 745 F.2d 1386, 1394 (11th Cir. 1984).
405 Rosen v. N.L.R.B., 735 F.2d 564, 575 n.19 (4th Cir. 1980)(“it is true that a necessary
predicate of the charge of subornation of perjury is the suborner’s belief that the testimony
sought is in fact false”); Petite v. United States, 262 F.2d 788, 794 (4th Cir. 1959)(“[i]t is
essential to subornation of perjury that the suborner should have known or believed or have
had good reason to believe that the testimony given would be false, that he should have
known or believed that the witness would testify willfully and corruptly, and with
knowledge of the falsity; and that he should have knowingly and willfully induced or
procured the witness to give such false testimony”)(Petite only refers to Section 1621 since
it was decided prior to the enactment of Section 1623).
406 United States v. Miller, 161F.3d 977, 982-84 (6th Cir. 1998).

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which unlike Section 1622 do not insist upon suborner success as a prerequisite to
prosecution.407
False Statements (18 U.S.C. 1001).
The general false statement statute, 18 U.S.C. 1001, outlaws false statements,
concealment, or false documentation in any matter within the jurisdiction of any of
the three branches of the federal government, although it limits application in the
case of Congress and the courts.408 More specifically it states:
I. Except as otherwise provided in this section,
II. whoever, in any matter within the jurisdiction of the executive,
legislative, or judicial branch of the Government of the
United States,
III. knowingly and willfully –
IV. a. falsifies, conceals, or covers up by any trick, scheme,
or device a material fact;
b. makes any materially false, fictitious, or fraudulent
statement or representation; or
c. makes or uses any false writing or document knowing
the same to contain any materially false, fictitious, or fraudulent statement or
entry;
shall be fined under this title, imprisoned not more than 5 years or, imprisoned not
more than 8 years if the offense involves international or domestic terrorism (as
defined in section 2331) or if the matter relates to an offense under chapter 109A
(sexual abuse), 109B (sex offender registration), 110 (sexual exploitation), or 117
(transportation for illicit sexual purposes), or Section 1591 (sex trafficking).409
407 18U.S.C. 1503 (emphasis added) (“Whoever . . . endeavors to influence, obstruct, or
impede the due administration of justice . . .”); 1512 (b) (emphasis added) (“Whoever . . .
corruptly persuades another person, or attempts to do so . . . with intent to influence . . . the
testimony of any person in an official proceeding . . .”).
408 There are scores of more limited false statement statutes that relate to particular agencies
or activities and include 8 U.S.C.1160(b)(7)(A) (applications for immigration status); 15
U.S.C. 158 (China Trade Act corporate personnel); 15 U.S.C. 645 (Small Business
Administration); 15 U.S.C. 714m (Commodity Credit Corporation); 16 U.S.C. 831t ( TVA);
18 U.S.C. 152 ( bankruptcy); 18 U.S.C. 287 (false or fraudulent claims against the United
States); 18 U.S.C. 288 (postal losses); 18 U.S.C. 289 (pensions); 18 U.S.C. 541 (entry of
goods falsely classified); 18 U.S.C. 542 (entry of goods by means of false statements); 18
U.S.C. 550 (refund of duties); 18 U.S.C. 1003 (fraudulent claims against the United States);
18 U.S.C. 1007 (FDIC transactions); 18 U.S.C. 1011 (federal land bank mortgage
transactions); 18 U.S.C. 1014 (loan or credit applications in which the United States has an
interest); 18 U.S.C. 1015 (naturalization, citizenship or alien registry); 18 U.S.C. 1019 (false
certification by consular officer); 18 U.S.C. 1020 (highway projects); 18 U.S.C. 1022 (false
certification concerning material for the military); 18 U.S.C. 1027 (ERISA); 18 U.S.C. 1542
(passport applications); 18 U.S.C. 1546 (fraud in connection with visas, permits and other
documents); 22 U.S.C. 1980 (compensation for loss of commercial fishing vessel or gear);
22 U.S.C. 4221 (American diplomatic personnel); 22 U.S.C. 4222 (presentation of forged
documents to United States foreign service personnel); 42 U.S.C. 408 (old age claims); 42
U.S.C. 1320a-7b (Medicare).
409 18 U.S.C. 1001(a). For addition discussion of Section 1512 see, Twenty-Second Survey
of White Collar Crime: False Statements and False Claims
, 44 AMERICAN CRIMINAL LAW

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The courts’ description of the elements will ordinarily be limited to whichever
of the forms of misconduct – false statement,410 concealment,411 or false
documentation412 – is implicated in the particular case. In addition, Section 1001
imposes a limitation upon an offense that involves matters within the jurisdiction of
either the judicial or legislative branch:
(b) Subsection (a) does not apply to a party to a judicial proceeding, or that
party's counsel, for statements, representations, writings or documents submitted by
such party or counsel to a judge or magistrate in that proceeding.
(c) With respect to any matter within the jurisdiction of the legislative branch,
subsection (a) shall apply only to – (1) administrative matters, including a claim for
payment, a matter related to the procurement of property or services, personnel or
employment practices, or support services, or a document required by law, rule, or
regulation to be submitted to the Congress or any office or officer within the
legislative branch; or (2) any investigation or review, conducted pursuant to the
authority of any committee, subcommittee, commission or office of the Congress,
consistent with applicable rules of the House or Senate. 18 U.S.C. 1001(b),(c).
Those limitations constitute elements of the offense in such cases.413
A matter is within the jurisdiction of a federal entity when it involves a matter
“confided to the authority of a federal agency or department . . . A department or
agency has jurisdiction, in this sense, when it has power to exercise authority in a
particular situation. Understood in this way, the phrase ‘within the jurisdiction’
merely differentiates the official, authorized functions of a agency or department
from matters peripheral to the business of that body.”414 Several courts have held that
REVIEW 491 (2007).
410 United States v. Blackwell, 459 F.3d 739, 761 (6th Cir. 2006)(“Section 1001 of Title 18
prohibits any person from (1) ‘knowingly and wilfully’; (2) ‘making any material false,
fictitious, or fraudulent statement or representation’; (3) ‘in any matter within the
jurisdiction of the executive, legislative , or judicial branch of the Government of the United
States”); United States v. Rice, 449 F.3d 887, 892 (8th Cir. 2006); United States v. Hatch,
434 F.3d 1, 5 (1st Cir. 2006); United States v. Camper, 384 F.3d 1073, 1075 (9th Cir. 2004).
411 United States v. Moore, 446 F.3d 671, 677 (7th Cir. 2006)(“We have identified the five
elements of a ‘false statement’ charge under §1001(a)(2) . . . (1) the defendant must . . have
a duty to disclose the information; (2) . . . there must be acts amounting to concealment; (3)
the . . . concealed facts must be material; (4) the person must . . . conceal the facts
knowingly and willfully; and (5) the . . . concealed information must concern a matter within
the jurisdiction of a federal department or agency”).
412 United States v. McGauley, 279 F.3d 62, 69 (1st Cir. 2002)(“To establish a violation of
18 U.S.C. 1001, the government must prove that the defendant knowingly and willfully
made or used a false writing or document, in relation to a matter with the jurisdiction of the
United States government with knowledge of its falsity”); United States v. Blankenship, 382
F.3d 1110, 1131-132 (11th Cir. 2004).
413 United States v. Horvath, 492 F.3d 1075, 1077 (9th Cir. 2007); United States v. Pickett,
353 F.3d 62, 66-69 (D.C. Cir. 2004).
414 United States v. Rodgers, 466 U.S. 475, 479 (1984); United States v. Atalig, 502 F.3d
1063, 1068 (9th Cir. 2007); United States v. Blankenship, 382 F.3d 1110, 1136 (11th Cir.
2004); United States v. White, 270 F.3d 356, 363 (6th Cir. 2001).

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the phrase contemplates coverage of false statements made to state, local, or private
entities but relating to matters that involve federal funds or regulations.415 Subsection
1001(b) precludes application of prohibitions in Section 1001(a) to the statements,
omissions, or documentation presented to the court by a party in judicial proceedings.
This includes statements of indigency filed by a defendant seeking the appoint of
counsel,416 or by a defendant for a probation officer’s presentence report;417 but not
statements made by one on supervised release to a parole officer.418
Although the offense can only be committed “knowingly and willfully,” the
prosecution need not prove that the defendant knew that his conduct involved a
“matter within the jurisdiction” of a federal entity419 nor that he intended to defraud
a federal entity.420 Instead, the phrase “knowingly and willfully” refers to the
circumstances under which the defendant made his statement, omitted a fact he was
obliged to disclose, or included with his false documentation, i.e., “that the defendant
knew that his statement was false when he made it or – which amounts in law to the
same thing – consciously disregarded or averted his eyes from the likely falsity.”421
Prosecution for a violation of Section 1001 requires proof of materiality, as does
conviction for perjury, and the standard is the same: the statement must have a
“natural tendency to influence, or be capable of influencing the decisionmaking body
415 United States v. White, 270 F.3d 356, 363 (6th Cir. 2001)(“We have in the past looked
to whether the entity to which the statements were made received federal support and/or was
subject to federal regulation”); United States v. Davis, 8 F.3d 923, 929 (2d Cir. 1993)(“In
situations in which a federal agency is overseeing a state agency, it is the mere existence of
the federal agency’s supervisory authority that is important to determining jurisdiction”),
contra, United States v. Blankenship, 382 F.3d 1110, 1139, 1141 (11th Cir. 2004)(emphasis
in the original) (“The clear, indisputable holding of Lowe is that a misrepresentation made
to a private company concerning a project that is the subject of a contract between that
company and the federal government does not constitute a misrepresentation about a matter
within the jurisdiction of the federal government. . . . Because neither Lowe not its central
holding has ever been overruled . . . it remains good law”).
416 United States v. McNeil, 362 F.3d 570, 573 (9th Cir. 2004)(but observing that
“[s]ubmitting a false CJA-23 form may subject a defendant to criminal liability under other
statutes, for example, under 18 U.S.C. 1621, the general statute on perjury, or 18 U.S.C.
1623, which punishes the making of a false material declaration in any proceeding, before,
or ancillary to, any court”).
417 United States v. Horvath, 492 F.3d 1075, 1078-1081 (9th Cir. 2007).
418 United States v. Curtis, 237 F.3d 598, 605 (6th Cir. 2001).
419 United States v. Yermian, 468 U.S. 63, 75 (1984); United States v. Gonzales, 435 F.3d
64, 72 (1st Cir. 2006).
420 United States v. Gonzales, 435 F.3d 64, 72 (1st Cir. 2006).
421 Id.; United States v. Duclos, 214 F.3d 27, 33 (1st Cir. 2000); United States v. Hsia, 176
F.3d 716, 721-22 (D.C. Cir. 1999); United States v. Hoover, 175 F.3d 564, 571 (7th Cir.
1999).

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to which it is addressed.”422 There is no need to show that the decision maker was
in fact diverted or influenced.423
Conviction for false statements or false documentation under Section 1001 also
requires that the statements or documentation be false, that they not be true.424 And
the same can be said of the response to a question that is so fundamentally ambiguous
that the defendant’s answer cannot be said to be knowingly false.425 On the other
hand, unlike the perjury provision of Section 1623, “there is no safe harbor for
recantation or correction of a prior false statement that violates Section 1001.”426
Prosecutions under subsection 1001(a)(1) for concealment, rather than false
statement or false documentation, must also prove the existence of duty or legal
obligation not to conceal.427
Obstruction of Justice by “Tip-Off”
Although an individual who obstructs a federal investigation by tipping off the
targets of the investigation is likely to incur liability either as a principal under 18
422 United States v. Johnson, 485 F.3d 1264, 1270 (11th Cir. 2007); United States v. McBane,
433 F.3d 344, 350 (3d Cir. 2005); United States v. Stewart, 433 F.3d 273, 318 (2d Cir.
2006); United States v. Mitchell, 388 F.3d 1139, 1143 (8th Cir. 2004); United States v. Finn,
375 F.3d 1033, 1038 (10th Cir. 2004).
423 United States v. McBane, 433 F.3d 344, 350 (3d Cir. 2005), quoting, United States v.
Gaudin
, 515 U.S. 506, 512 (1995); United States v. Stewart, 420 F.3d 1007, 1019 (9th Cir.
2005); United States v. Mitchell, 388 F.3d 1139, 1143 (8th Cir. 2004); United States v.
Hasner
, 340 F.3d 1261, 1273-274 (11th Cir. 2003).
424 United States v. Good, 326 F.3d 589, 592 (4th Cir. 2003)(“The principle articulated in
Bronston holds true for convictions under Section 1001. . . We cannot uphold a conviction
. . . where the alleged statement forming the basis of a violation of Section 1001 is true on
its face”); United States v. Edwards, 303 F.3d 606, 637 (5th Cir. 2002); United States v.
Kosth
, 257 F.3d 712, 719 (7th Cir. 2001).
425 United States v. Culliton, 328 F.3d 1074, 1078 (9th Cir. 2003); United States v. Good,
326 F.3d 589, 592 (4th Cir. 2003); cf., United States v. Martin, 369 F.3d 1046, 1060 (8th Cir.
2004); United States v. Hatch, 434 U.S. 1, 4-5 (1st Cir. 2006).
426 United States v. Stewart, 433 F.3d 273, 318 (2d Cir. 2006), citing, United States v.
Sebaggala
, 256 F.3d 59, 64 (1st Cir. 2001); United States v. Meuli, 8 F.3d 1481, 1486-487
(10th Cir. 1993); and United States v. Fern, 696 F.2d 1269, 1275 (11th Cir. 1983).
427 United States v. Stewart, 433 F.3d 273, 318-19 (2d Cir. 2006)(“Defendant’s legal duty
[as a broker] to be truthful under Section 1001 included a duty to disclose the information
regarding the circumstances of Stewart’s December 27th trade . . . .Trial testimony indicated
that the SEC had specifically inquired about [his] knowledge of Stewart’s trades. As a
result, it was plausible for the jury to conclude that the SEC’s questioning had triggered
[his] duty to disclose and that ample evidence existed that his concealment was material to
the investigation ”); United States v. Moore, 446 F.3d 671, 678-79 (7th Cir. 2006)(regulatory
obligation); United States v. Gibson, 409 F.3d 325, 333 (6th Cir. 2005)(“Conviction on a 18
U.S.C. 1001 concealment charge requires a showing that the ‘defendant had a legal duty to
disclose the facts at the time he was alleged to have concealed them’”), quoting, United
States v. Curran
, 20 F.3d 560, 566 (3d Cir. 1994).

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U.S.C. 2 or as an accessory after the fact under 18 U.S.C. 3, there are several federal
anti-tip-off statutes like Section 1510, which prohibits bank officials from notifying
suspects that they are under investigation,428 and which imposes a similar restriction
on insurance company officers and employees.429

Subsection 2511(1)(e) proscribes tipping off the targets of federal or state law
enforcement wiretaps.430 A similar prohibition appears in 18 U.S.C. 2232 which also
outlaws improper notification in the case of search warrants or Foreign Intelligence
Surveillance Act orders.431 All three offenses are punishable by imprisonment for not
428 “(1) Whoever, being an officer of a financial institution, with the intent to obstruct a
judicial proceeding, directly or indirectly notifies any other person about the existence or
contents of a subpoena for records of that financial institution, or information that has been
furnished to the grand jury in response to that subpoena, shall be fined under this title or
imprisoned not more than 5 years, or both.
“(2) Whoever, being an officer of a financial institution, directly or indirectly notifies
– (A) a customer of that financial institution whose records are sought by a grand jury
subpoena; or (B) any other person named in that subpoena – about the existence or contents
of that subpoena or information that has been furnished to the grand jury in response to that
subpoena, shall be fined under this title or imprisoned not more than one year, or both.
“(3) As used in this section – (A) the term ‘an officer of a financial institution’ means
an officer, director, partner, employee, agent, or attorney of or for a financial institution;
and(B) the term ‘subpoena for records’ means a Federal grand jury subpoena or a
Department of Justice subpoena (issued under section 3486 of title 18), for customer records
that has been served relating to a violation of, or a conspiracy to violate – (i) section 215,
656, 657, 1005, 1006, 1007, 1014, 1344, 1956, 1957, or chapter 53 of title 31; or (ii) Section
1341 or 1343 affecting a financial institution,” 18 U.S.C. 1510(b).
429 “(1) Whoever – (A) acting as, or being, an officer, director, agent or employee of a
person engaged in the business of insurance whose activities affect interstate commerce, or
(B) is engaged in the business of insurance whose activities affect interstate commerce or
is involved (other than as an insured or beneficiary under a policy of insurance) in a
transaction relating to the conduct of affairs of such a business – with intent to obstruct a
judicial proceeding, directly or indirectly notifies any other person about the existence or
contents of a subpoena for records of that person engaged in such business or information
that has been furnished to a Federal grand jury in response to that subpoena, shall be fined
as provided by this title or imprisoned not more than 5 years, or both.
“(2) As used in paragraph (1), the term ‘subpoena for records’ means a Federal grand
jury subpoena for records that has been served relating to a violation of, or a conspiracy to
violate, Section 1033 of this title,” 18 U.S.C. 1510(d).
430 “(1) Except as otherwise specifically provided in this chapter any person who . . . (e) (i)
intentionally discloses, or endeavors to disclose, to any other person the contents of any
wire, oral, or electronic communication, intercepted by means authorized by subsections
2511(2)(a)(ii), 2511(2)(b) to (c), 2511(2)(e), 2516, and 2518 of this chapter, (ii) knowing
or having reason to know that the information was obtained through the interception of such
a communication in connection with a criminal investigation, (iii) having obtained or
received the information in connection with a criminal investigation, and (iv) with intent to
improperly obstruct, impede, or interfere with a duly authorized criminal investigation. .
.(4)(a) . . . shall be fined under this title or imprisoned not more than five years, or both,”
18 U.S.C. 2511(1)(e), (4)(a).
431 “(c) Notice of search or execution of seizure warrant or warrant of arrest in rem.–
Whoever, having knowledge that any person authorized to make searches and seizures, or

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more than 5 years.432

Specific Obstructions
A number of federal statutes proscribe obstruction of specific types of
investigations or proceedings in general terms. Their prohibitions may be breached
by bribery, deception, violence, or threat; although the limited case law suggests that
most are more likely to be violated by corruption or deception than violence.
Numbered among them are: 18 U.S.C. 1511 that outlaws obstruction state illegal
gambling business investigations.433 18 U.S.C. 1516 that bans obstruction of a federal
audit of an activity involving more than $100,000 in federal funds;434 18 U.S.C. 1517
to execute a seizure warrant or warrant of arrest in rem, in order to prevent the authorized
seizing or securing of any person or property, gives notice or attempts to give notice in
advance of the search, seizure, or execution of a seizure warrant or warrant of arrest in rem,
to any person shall be fined under this title or imprisoned not more than 5 years, or both.
“(d) Notice of certain electronic surveillance.– Whoever, having knowledge that a
Federal investigative or law enforcement officer has been authorized or has applied for
authorization under chapter 119 to intercept a wire, oral, or electronic communication, in
order to obstruct, impede, or prevent such interception, gives notice or attempts to give
notice of the possible interception to any person shall be fined under this title or imprisoned
not more than five years, or both.
“(e) Foreign intelligence surveillance.– Whoever, having knowledge that a Federal
officer has been authorized or has applied for authorization to conduct electronic
surveillance under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801, et
seq.), in order to obstruct, impede, or prevent such activity, gives notice or attempts to give
notice of the possible activity to any person shall be fined under this title or imprisoned not
more than five years, or both,” 18 U.S.C. 2232(c), (d), (e).
432 Id.
433 “(a) It shall be unlawful for two or more persons to conspire to obstruct the enforcement
of the criminal laws of a State or political subdivision thereof, with the intent to facilitate
an illegal gambling business if – (1) one or more of such persons does any act to effect the
object of such a conspiracy; (2) one or more of such persons is an official or employee,
elected, appointed, or otherwise, of such State or political subdivision; and (3) one or more
of such persons conducts, finances, manages, supervises, directs, or owns all or part of an
illegal gambling business. (b) As used in this section – (1) ‘illegal gambling business’ means
a gambling business which– (i) is a violation of the law of a State or political subdivision
in which it is conducted; (ii) involves five or more persons who conduct, finance, manage,
supervise, direct, or own all or part of such business; and (iii) has been or remains in
substantially continuous operation for a period in excess of thirty days or has a gross
revenue of $2,000 in any single day. (2) ‘gambling’ includes but is not limited to
pool-selling, bookmaking, maintaining slot machines, roulette wheels, or dice tables, and
conducting lotteries, policy, bolita or numbers games, or selling chances therein. (3) ‘State’
means any State of the United States, the District of Columbia, the Commonwealth of Puerto
Rico, and any territory or possession of the United States. . . . (d) Whoever violates this
section shall be punished by a fine under this title or imprisonment for not more than five
years, or both,” 18 U.S.C. 1511(a), (b), (d).
434 18 U.S.C. 1516(“(a) Whoever, with intent to deceive or defraud the United States,
endeavors to influence, obstruct, or impede a Federal auditor in the performance of official
duties relating to a person, entity, or program receiving in excess of $100,000, directly or
indirectly, from the United States in any 1 year period under a contract or subcontract, grant,

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that prohibits obstruction of the federal audit of a financial institution;435 18 U.S.C.
1518 that condemns obstruction of federal criminal investigation of possible health
care offenses;436 and 18 U.S.C. 118 that proscribes obstructing federal protection of
foreign diplomats and other dignitaries in this country and of personnel in federal
facilities overseas.437 The penalty for violating each of the sections other than
Section 118 is imprisonment for not more than 5 years; Section 118 offenses are
punishable by imprisonment for not more than 1 year.438
Influencing Jurors by Writing (18 U.S.C. 1504).
It is a federal crime to communicate in writing with any member of federal
grand or trial jury in an attempt to influence the performance of his or her duties.439
Violations are punishable by imprisonment for not more than 6 months and/or a fine
of not more than $100,000. The section appears to have prosecuted only
or cooperative agreement, or relating to any property that is security for a mortgage note that
is insured, guaranteed, acquired, or held by the Secretary of Housing and Urban
Development pursuant to any Act administered by the Secretary, or relating to any property
that is security for a loan that is made or guaranteed under title V of the Housing Act of
1949, shall be fined under this title, or imprisoned not more than 5 years, or both.
“(b) For purposes of this section– (1) the term “Federal auditor” means any person
employed on a full- or part-time or contractual basis to perform an audit or a quality
assurance inspection for or on behalf of the United States; and (2) the term “in any 1 year
period” has the meaning given to the term “in any one-year period” in section 666”).
435 18 U.S.C. 1517 (“Whoever corruptly obstructs or attempts to obstruct any examination
of a financial institution by an agency of the United States with jurisdiction to conduct an
examination of such financial institution shall be fined under this title, imprisoned not more
than 5 years, or both”).
436 18 U.S.C. 1518(“(a) Whoever willfully prevents, obstructs, misleads, delays or attempts
to prevent, obstruct, mislead, or delay the communication of information or records relating
to a violation of a Federal health care offense to a criminal investigator shall be fined under
this title or imprisoned not more than 5 years, or both. (b) As used in this section the term
‘criminal investigator’ means any individual duly authorized by a department, agency, or
armed force of the United States to conduct or engage in investigations for prosecutions for
violations of health care offenses”).
437 18 U.S.C. 118 (“Any person who knowingly and willfully obstructs, resists, or interferes
with a Federal law enforcement agent engaged, within the United States, in the performance
of the protective functions authorized under section 37 of the State Department Basic
Authorities Act of 1956 (232 U.S.C. 2709) or Section 103 of the Diplomatic Security Act
(22 U.S.C. 4802) shall be fined under this title, imprisoned not more than 1 year, or both”).
438 18 U.S.C. 1516, 1517, 1518, 118.
439 18 U.S.C. 1504 (“Whoever attempts to influence the action or decision of any grand or
petit juror of any court of the United States upon any issue or matter pending before such
juror, or before the jury of which he is a member, or pertaining to his duties, by writing or
sending to him any written communication, in relation to such issue or matter, shall be fined
under this title or imprisoned not more than six months, or both. Nothing in this section shall
be construed to prohibit the communication of a request to appear before the grand jury”).

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infrequently, perhaps in part because of the availability of prosecution under other
statutes such as contempt or obstruction of justice.440
Although the statute suggests that the section does preclude written requests to
appear before the grand jury (“nothing in this section shall be construed to prohibit the
communication of a request to appear before the grand jury”), the cases indicate the
exception is limited to communications forwarded through the court or the prosecutor
or to those requested by the grand jury itself.441
440 In United States v. Burkowski, 435 F.2d 1094, 1104 (7th Cir. 1970), a juror – convicted
of contempt for reading outside material and engaging in outside discussion on issues before
the jury during the course of the trial – argued unsuccessfully that he should have been tried
under the less severe provisions of 18 U.S.C. 1504.
441 In re New Haven Grand Jury, 604 F.Supp. 453, 457 (D.Conn. 1985); United States v.
Smyth
, 104 F.Supp. 283, 299 (N.D.Cal. 1952).