Order Code RS22783
December 27, 2007
Obstruction of Justice: An Abridged Overview
of Related Federal Criminal Laws
Charles Doyle
Senior Specialist
American Law Division
Summary
Obstruction of justice is the frustration of governmental purposes by violence,
corruption, destruction of evidence, or deceit. It is a federal crime. In fact, it is several
crimes. Obstruction prosecutions regularly involve charges under several statutory
provisions. Federal obstruction of justice laws are legion; too many for even passing
reference to all of them in a single report.
The general 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. In addition to
these, there are a host of other statutes that penalize obstruction by violence, corruption,
destruction of evidence, or deceit.
This is an abridged version of CRS Report RL34303, Obstruction of Justice: An
Overview of Some of the Federal Laws that Prohibit Interference with Judicial,
Executive or Legislative Activities, without the footnotes, quotations, or citations to
authority found in the longer report.
Witness Tampering (18 U.S.C. 1512). Section 1512 applies to the obstruction
of federal proceedings – judicial, congressional, or executive. It consists of four
somewhat overlapping crimes: use of force or the threat of the use of force to prevent the
production of evidence (18 U.S.C. 1512(a)); use of deception or corruption or
intimidation to prevent the production of evidence (18 U.S.C. 1512(b)); destruction or
concealment of evidence or attempts to do so (18 U.S.C. 1512(c)); and witness
harassment to prevent the production of evidence (18 U.S.C. 1512(d)).
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). In essence, it condemns the use of violence to prevent a witness from
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testifying or producing evidence for an investigation and sets its penalties according to
whether the obstructive violence was a homicide, an assault or a threat.
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.
Subsection 1512(k) has no specific overt act element, and the courts have generally
declined to imply one under such circumstances. 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.
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.1 As a general rule, in order to aid and abet another to commit a crime
it is necessary that a defendant in some way associate 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. It is also necessary to prove that someone else committed the underlying
offense. Section 3 outlaws acting as an accessory after the fact, 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. Prosecution
requires the commission of an underlying federal crime by someone else. 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). The elements of misprision
of felony under 18 U.S.C. 4 are (1) the principal committed and completed the felony
alleged; (2) the defendant had full knowledge of that fact; (3) the defendant failed to
notify the authorities; and (4) defendant took steps to conceal the crime. The offense is
punishable by imprisonment for not more than 3 years and/or a fine of not more than
$250,000. Solicitation to commit an offense under subsection 1512(a), or any other crime
of violence, is proscribed in 18 U.S.C. 373. 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. Section 373 provides an affirmative statutory
defense for one who prevents the commission of the solicited offense.2 Offenders face
1 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”).
2 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
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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. 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 federal money laundering and racketeering statutes are perhaps the most
prominent examples of these. The racketeering statutes (RICO) outlaw acquiring or
conducting the affairs of an interstate enterprise through a pattern of predicate offenses.
Section 1512 offenses are RICO predicate offenses. 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. The money laundering provisions, among other things, prohibit financial
transactions involving the proceeds of a predicate offense. RICO predicate offenses are
by definition money laundering predicate offenses. Money laundering is punishable by
imprisonment for not more than 20 years, a fine, and the confiscation of related property.
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. 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. It also bans any attempt to so intimidate, threaten, or corruptly persuade.
The conspiracy, accomplice, RICO and money laundering attributes are equally applicable
to subsection 1512(b) offenses.
Obstruction by Destruction of Evidence or Harassment (18 U.S.C.
1512(c), 1512(d)). Subsection 1512(c) proscribes obstruction of official proceedings by
destruction of evidence and is punishable by imprisonment for not more than 20 years.
Subsection 1512(d) outlaws harassing federal witnesses and is a misdemeanor punishable
by imprisonment for not more than one year. Both enjoy the conspiracy, accomplice,
RICO and money laundering attributes that to apply to all Section 1512 offenses.
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. It condemns obstructing pending judicial proceedings. For
conviction, 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. Offenders are punished according to the nature of
obstruction: murder and manslaughter are punished as those crimes are punished when
the crime until another time or to substitute another victim or another but similar objective. If
the defendant raises the affirmative defense at trial, the defendant has the burden of proving the
defense by a preponderance of the evidence. (c) It is not a defense to a prosecution under this
section that the person solicited could not be convicted of the crime because he lacked the state
of mind required for its commission, because he was incompetent or irresponsible, or because
he is immune from prosecution or is not subject to prosecution.”).
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committed in violation of sections 1111 and 1112; 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; and all other
offenses by imprisonment for not more than 10 years. Conspiracy to violate Section 1503
can only be prosecuted under the general conspiracy statute. Section 1503 offenses are
RICO predicate offenses and consequently money laundering predicate offenses. Those
who aid and abet a Section 1503 offense are liable as principals and are punishable as if
they committed the offense themselves. 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. And
an individual who affirmatively conceals the commission of a Section 1503 by another
is guilty of misprision.
Retaliating Against Federal Witnesses (18 U.S.C. 1513). Section 1513
prohibits witness or informant retaliation in the form of killing, attempting to kill,
inflicting or threatening to inflict bodily injury, damaging or threatening to damage
property, and conspiracies to do so. It also prohibits economic retaliation against federal
witnesses, but only witnesses in court proceedings and only on criminal cases. Its penalty
structure is comparable to that of Section 1503. Section 1513 offenses are RICO
predicate offenses and money laundering predicate offenses, and the provisions for
conspirators and accomplices apply as well.
Obstructing Congressional or Administrative Proceedings (18 U.S.C.
1505). Section 1505 outlaws obstructing Congressional or federal administrative
proceedings, a crime punishable by imprisonment not more than 5 years (not more than
8 years if the offense involves domestic or international terrorism). The crime has three
essential elements. First, there must be a proceeding pending before a department or
agency of the United States. Second, the defendant must be aware of the pending
proceeding. Third, the defendant must have intentionally endeavored corruptly to
influence, obstruct or impede the pending proceeding. Section 1505 offenses are not
RICO or money laundering predicate offenses. Conspiracy to obstruct administrative or
Congressional proceedings may be prosecuted under 18 U.S.C. 371, and 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.
Conspiracy to Obstruct to Defraud (18 U.S.C. 371). 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 the conspirators in furtherance of the
scheme. 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
by deceit, craft or trickery, or at least by means that are dishonest. The scheme may be
designed to deprive the United States of money or property, but it need not be so; a plot
calculated to frustrate the functions of a governmental entity will suffice.
Criminal Contempt of Court. The final and oldest of the general obstruction
provisions is contempt. Contemporary federal contempt derives from statute, rule and
inherent or auxiliary authority. Criminal contempt comes in two forms, direct and
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indirect. Direct contempt involves misconduct in the presence of the court and is
punished to ensure the decorum of the court and the dignity of the bench. Indirect
contempt consists of those obstructions committed outside the presence of the court.
Direct contempt may be summarily punished; indirect contempt may not. A court may
punish as criminal contempt disobedience or resistance to its lawful writ, process, order,
rule, decree, or command. Criminal contempt may be punished by imprisonment or by a
fine or both. 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.
Contempt of Congress. Contempt of Congress is punishable by statute and
under the inherent powers of Congress. Congress has not exercised its inherent contempt
power for some time. The statutory contempt of Congress provision, 2 U.S.C. 192,
outlaws the failure to obey a Congressional subpoena or the refusal to answer questioning
at a Congressional hearing. The offense is punishable by imprisonment for not more than
one year and a fine of up to $100,000.
Obstruction of Justice by Violence or Threat. Several other federal statutes
outlaw use of threats or violence to obstruct federal government activities. One, 18
U.S.C. 115, prohibits acts of violence against judges, jurors, officials, former officials,
and their families in order to impede or retaliate for the performance of their duties. It
makes assault, kidnaping, murder, and attempts and conspiracies to commit such offenses
in violation of the section subject to the penalties imposed for those crimes elsewhere in
the Code. 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. Another, 18 U.S.C. 1114, protects federal
officers and employees as well as those assisting them, from murder, manslaughter, and
attempted murder and manslaughter committed during or account of the performance of
their duties. The section’s coverage extends to government witnesses. Other provisions
protect federal officers and employees from kidnaping and assault committed during or
on account of the performance of their duties, but their coverage of those assisting them
is less clear. Beyond these general prohibitions, federal law proscribes the murder,
kidnaping, or assault of Members of Congress, Supreme Court Justices, or Cabinet
Secretaries; and a number of statutes outlaw assaults on federal officers and employees
responsible for the enforcement of particular federal statutes and programs.
Obstruction of Justice by Bribery: 18 U.S.C. 201. Section 201 outlaws
offering or soliciting bribes or illegal gratuities in connection with judicial, congressional
and administrative proceedings. Bribery is a quid pro quo offense. It condemns
invitations and solicitations to corruption. The penalty structure for bribery 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.
Mail and Wire Fraud. 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. 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
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defraud” element in the fraud statutes to include a scheme “to deprive another of the
intangible right of honest services.” 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. Prosecutors may favor a mail or wire fraud charge over
or in addition to bribery charge if for no the 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.
Obstruction by Extortion Under Color of Official Right (18 U.S.C. 1951).
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. 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. The payment need not
have been solicited, nor need the official act for which it is exchanged have been
committed. The prosecution must establish that the extortion obstructed, delayed, or
affected interstate or foreign commerce, but the impact need not have actually occurred
nor been even potentially severe. Violations are punishable by imprisonment for not more
than 20 years.
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.
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 that 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 that 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 with the jurisdiction of the federal courts or a
Congressional entity.